Transnationalizing Rights: International Human Rights Law in Cross-Border Contexts
European Journal of International Law, EJIL (Forthcoming)
Posted: 26 Sep 2017 Last revised: 26 Jan 2018
Date Written: June 29, 2017
International human rights law (IHRL) is still largely state-centred. This is an obstacle when it comes to making cross-border problems such as transboundary environmental harm and transnational surveillance amenable to human rights claims. The state-centeredness of IHRL is challenged by three phenomena associated with transnationalization processes: by extraterritorial harmful effects, through complex (multi-stage, multi-level, and public-private) cross-border cooperation impacting the enjoyment of rights, and, finally, by cross-border conduct of non-state actors with an adverse impact on rights abroad.
The central argument defended here is that existing IHRL can accommodate these challenges if some of its core concepts are given a ‘transnational interpretation’, which would complement the traditional state-centred conception of IHRL. The article discusses transnational interpretations of three core doctrinal concepts, namely jurisdiction, interference, and human rights obligations. It is shown that examples for transnational interpretations of international human rights can be found, e.g., in the case law of the European Court of Human Rights (ECtHR) and some recent EU-US cooperation treaties.
Keywords: International Human Rights Law, Transnational Law, Transnationalization, European Convention on Human Rights
JEL Classification: K33
Suggested Citation: Suggested Citation