Human Rights Obligations of the Territorial State in the Cyberspace of Areas Out of Its Effective Control

Abstract

The territorial state’s lacking control over a part of its physical territory goes hand by hand with online human rights violations, on the one hand, and the state’s restricted (but not necessarily lacking) control over the cyberspace, on the other hand. Notwithstanding the lack of its effective territorial control, the territorial state continues to be entitled to exercise its sovereignty over both the territory and the cyberspace. The consequence of sovereignty in international human rights law is the territorial state’s presumed jurisdiction over its entire national territory. The paper claims that the territorial state, while lacking the effective means to fully control its cyberspace as it does in the government-controlled areas, has continuing jurisdiction and consequently obligations to protect human rights online from wrongful acts that originate, occur or have effect in the area outside its effective control. Treaty monitoring bodies recommended various positive measures that any territorial state shall take while seeking to restore its “Internet sovereignty” in the separatist region, depending on the means in its power that are feasible in the concrete situation.

Keywords: international human rights law, due diligence, cyberspace, effective control, Ilaşcu case