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  • Skogly Osim Jurisdiction - a barrier to compliance - pre-publication

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    Embargo ends: 15/01/21

    Available under license: CC BY-NC: Creative Commons Attribution-NonCommercial 4.0 International License

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Jurisdiction - a barrier to compliance with extraterritorial obligations to protect against human rights abuses by non-state actors?

Research output: Contribution to journalJournal article

Published
<mark>Journal publication date</mark>1/04/2020
<mark>Journal</mark>Human Rights & International Legal Discourse
Issue number2
Volume13
Number of pages32
Pages (from-to)99-130
Publication StatusPublished
<mark>Original language</mark>English

Abstract


The obligation to protect individuals against human rights abuses by private and other ‘third’ parties is an accepted part of the tripartite human rights obligations’ classification. Ways of complying with this obligation are, however, not always clear, and some opposition has been voiced to it having reach beyond a state’s territorial border. This opposition is largely based on the reluctance of states to exercise their jurisdiction outside their territory. In this article, we address the content and reach of the human rights obligation to protect and how this relates to the exercise of jurisdiction to prevent human rights violations committed by private entities both within and beyond their home state’s territory. While the obligation to protect generally relates to the state’s obligation to regulate the conduct of any non-state actor, in this article we will use business enterprises as the actors in focus. The obligation to protect does not per se have a territorial limitation. The territorial limitation is brought in when the question of jurisdiction is added to the complexity. By addressing prescriptive jurisdiction, the article challenges the notion that jurisdiction in international human rights law is almost exclusively territorial, and argues that this is a misconception which results in many abuses of human rights that could have been addressed through regulation of conduct beyond a state’s border. Not tackling this misconception results in such conduct now being carried out with impunity. Consequently, the article argues that a restricted approach to jurisdiction is a barrier to full compliance with human rights obligations