New York University Journal of International Law and Politics, 2019
International human rights law is taking a teleological trajectory. International organizations a... more International human rights law is taking a teleological trajectory. International organizations and scholars increasingly agree that a de facto regime exercising effective power over a territory can commit human rights violations. However, it is unclear when an armed group may be classified as a de facto regime. This article argues that armed groups should have human rights obligations because of the factual trigger of necessity created by a legal lacuna and the limited international legal personality of the de facto regime. A de facto regime gains a quasi-governmental complexion when it exercises effective power over territory, which enables its participation in the international community. By acting in the international forum, the regime is subjected to duties and obligations under international human rights law. To this end, the doctrine of effective power is the sine qua non that anchors the de facto regime to its human rights obligations. This paper contributes to the ongoing discourse on armed groups and human rights law by examining similar concepts of authority and control in the contexts of extraterritorial human rights obligations, belligerent occupation , and the law on state responsibility. Synthesizing these bodies of law reveals three elements constitutive of effective power: (i) an armed group's ability to assert authority; (ii) its displacement of the original government; and (iii) the independence of its existence. If these three factors are satisfied, the de facto regime acquires functional international legal personality, and has obligations under human rights law. These obligations depend on the extent to which it exercises spatial control over the territory. Thus, effectiveness is a sliding scale tailored to how onerous the human rights obligations are. The extent of obligations the de facto regime owes is proportionate to its capacity to realize them.
Following Vinter v United Kingdom [2014], whole life orders without a sufficiently clear review m... more Following Vinter v United Kingdom [2014], whole life orders without a sufficiently clear review mechanism at the outset of sentencing were incompatible with Article 3 of the European Convention of Human Rights. The Hutchinson v United Kingdom [2017] judgment raised academic trepidation that this requirement had been removed. This article focuses on how Hutchinson relates to the specific requirements for whole life orders, in Vinter, and whether legal consistency is present between the two judgments. It will do so by highlighting how the substantive issue of whether a review mechanism exists is distinct from the procedural issue of whether this review mechanism is clear and certain. In the latter, a margin of appreciation is necessary to find the appropriate balance between the procedural autonomy of Member States, and the secondary role of the European Court of Human Rights as a supervisor to the domestic authorities and courts. This article will also address the factual question of whether the Grand Chamber in Hutchinson had omitted the issue of whether the applicant was aware at the outset of his sentencing of a review mechanism, even if this still falls short of causing a counter-revolution of legal principles.
New York University Journal of International Law and Politics, 2019
International human rights law is taking a teleological trajectory. International organizations a... more International human rights law is taking a teleological trajectory. International organizations and scholars increasingly agree that a de facto regime exercising effective power over a territory can commit human rights violations. However, it is unclear when an armed group may be classified as a de facto regime. This article argues that armed groups should have human rights obligations because of the factual trigger of necessity created by a legal lacuna and the limited international legal personality of the de facto regime. A de facto regime gains a quasi-governmental complexion when it exercises effective power over territory, which enables its participation in the international community. By acting in the international forum, the regime is subjected to duties and obligations under international human rights law. To this end, the doctrine of effective power is the sine qua non that anchors the de facto regime to its human rights obligations. This paper contributes to the ongoing discourse on armed groups and human rights law by examining similar concepts of authority and control in the contexts of extraterritorial human rights obligations, belligerent occupation , and the law on state responsibility. Synthesizing these bodies of law reveals three elements constitutive of effective power: (i) an armed group's ability to assert authority; (ii) its displacement of the original government; and (iii) the independence of its existence. If these three factors are satisfied, the de facto regime acquires functional international legal personality, and has obligations under human rights law. These obligations depend on the extent to which it exercises spatial control over the territory. Thus, effectiveness is a sliding scale tailored to how onerous the human rights obligations are. The extent of obligations the de facto regime owes is proportionate to its capacity to realize them.
Following Vinter v United Kingdom [2014], whole life orders without a sufficiently clear review m... more Following Vinter v United Kingdom [2014], whole life orders without a sufficiently clear review mechanism at the outset of sentencing were incompatible with Article 3 of the European Convention of Human Rights. The Hutchinson v United Kingdom [2017] judgment raised academic trepidation that this requirement had been removed. This article focuses on how Hutchinson relates to the specific requirements for whole life orders, in Vinter, and whether legal consistency is present between the two judgments. It will do so by highlighting how the substantive issue of whether a review mechanism exists is distinct from the procedural issue of whether this review mechanism is clear and certain. In the latter, a margin of appreciation is necessary to find the appropriate balance between the procedural autonomy of Member States, and the secondary role of the European Court of Human Rights as a supervisor to the domestic authorities and courts. This article will also address the factual question of whether the Grand Chamber in Hutchinson had omitted the issue of whether the applicant was aware at the outset of his sentencing of a review mechanism, even if this still falls short of causing a counter-revolution of legal principles.
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