When Justification Fails

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One way of understanding jurisdiction in international human rights law is to say that it captures how to justify allocating an obligation to a particular state (see here). But even where there is no jurisdiction clause – as in the ICESCR – justification is still necessary (see here). A successful justification will give a reason for the allocation of an obligation and will consist of a combination of facts and principles that explain why these facts are relevant (on this see here). Candidates for this reason at present include at least the following: (de facto) authority, effective control (over an area or an individual, or rights), but also capability and control over potential sources of (transboundary) harm. These are all facts. The principles that would identify the relevant facts are often only implicit in the arguments. This makes it difficult to evaluate how well each of these facts work as a reason for duty allocation within international human rights law.

To counter this problem, I argue elsewhere that international phone number list human rights law is principally informed by the values of integrity and equality (see generally here). These values generate the principle that whatever agent is in a position to guarantee equal treatment in an area of human existence covered by a recognised international human right is justifiably allocated the burdens of the corresponding obligations. This is because this position best describes the power that human rights are meant to channel and constrain.



There are compelling counterexamples that are not covered by the above account. The key challenge to justifying human rights obligations building on a guarantee of equality (in addition to the often-cited poverty, eg, here) is climate change and the associated harms. Current approaches to extraterritoriality generally suggest that many climate harms may not be qualified as human rights obligations although human rights bodies might follow domestic courts in their more open findings. This would not solve the problem of justification in my view, however. Given this, I want to offer a tentative way forward.