What does the jurisdictional hurdle under international human rights law mean for the relationship between international human rights law and international humanitarian law ? / Ka Lok Yip
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Article
Title:
What does the jurisdictional hurdle under international human rights law mean for the relationship between international human rights law and international humanitarian law ?
Author zone:
Ka Lok Yip
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English
Abstract:
With increasing acceptance of the application of international human rights law (‘IHRL’) in armed conflicts, the early focus on ‘jurisdiction’ as a potential limit to applying IHRL extra-territorially has shifted to the relationship between IHRL and international humanitarian law (‘IHL’). This article examines two competing conceptions of jurisdiction, based respectively on factual control and normative legitimacy, to examine what the jurisdictional hurdle under IHRL means for the relationship between IHRL and IHL. It argues that while control-based jurisdiction is theoretically under-developed, legitimacy-based jurisdiction constricts our vision of human rights and blinds us to the many non-sovereign actors holding structural power over lives in armed conflicts. It then proposes a reconceptualisation of ‘jurisdiction’ as structural power to reclaim the ambit of IHRL as demanding the transformation of institutions, sovereign or otherwise, so as to create the necessary structural conditions for the fuller enjoyment of human rights.
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