PIL Discussion Group: Jurisdictional Disconnections - State Jurisdiction and Human Rights

The word ‘jurisdiction’ has several uses in international law, and it is necessary to draw a careful distinction between them. This concern arises in particular in relation to ‘jurisdiction’ in the context of international human rights law (IHRL) and the general law of state jurisdiction, where international lawyers regularly observe that it is important to avoid the risk of confusion or conflation. This paper asks an opposing question – why are the concepts of jurisdiction different in relation to IHRL and general state jurisdiction, and should they be? The distinction between prescriptive and enforcement jurisdiction is arguably critical here. In the context of prescriptive jurisdiction, jurisdictional disconnections appear concerning – it is not clear why states should have powers which are not subject to human rights, or human rights obligations which do not map onto state powers. In the context of enforcement jurisdiction, the picture is more complicated. Exercises of enforcement jurisdiction are recognised as a basis on which to extend IHRL jurisdiction, but an IHRL perspective may equally challenge the territorially compartmentalized approach to jurisdiction in cross-border enforcement cases. Viewing IHLR jurisdiction as a justification for enforcement jurisdiction would, in addition, more controversially seem to invite uses of force to protect nationals or for humanitarian intervention. It is thus arguably important both to challenge and to maintain this jurisdictional disconnection.

Kimberley Trapp is Deputy Dean and Professor of Public International Law at the Faculty of Laws, UCL. She served as the Faculty's Vice-Dean (International) from 2018-2022. Prior to joining UCL in 2012, she was a Lecturer at Newnham College and an Affiliated Lecturer at the Faculty of Law, University of Cambridge. Kimberley obtained a BA (philosophy), BCL and LLB from McGill University, and an LL.M and PhD from the University of Cambridge. Kimberley collaborates as an academic advisor on issues of international humanitarian and human rights law with various NGOs and Government departments, has published in leading academic journals and edited collections on issues relating to the use of force, State responsibility, the interaction between international humanitarian law and terrorism suppression, and the settlement of international disputes, and has presented related scholarship at various forums, including the Annual Meetings of the Canadian Council on International Law, American Society of International Law and Australian and New Zealand Society of International Law.  Kimberley is co-editor of the OUP 'Elements of International Law' book series, a member of the Academic Review Board of the Cambridge International Law Journal, Board of Editors of the Journal on the Use of Force and International Law and serves on the Advisory Board of the McGill Journal of International Law & Legal Pluralism. 

Alex Mills is Professor of Public and Private International Law, Faculty of Laws, University College London. He has degrees in Philosophy and Law from the University of Sydney, and an LLM and PhD from the University of Cambridge, where he also taught before joining UCL. He has published widely on questions of public and private international law, and is the author of books on The Confluence of Public and Private International Law (2009) and Party Autonomy in Private International Law (2018), and a co-author of Cheshire North and Fawcett's Private International Law (15th edition, 2017). He is also a specialist editor for Dicey, Morris and Collins on the Conflict of Laws (16th edition, 2022), and General Editor of the International and Comparative Law Quarterly. He has been consulted on public and private international law issues by government departments, legal practitioners, and both non-governmental and inter-governmental organisations, and has also acted as an expert in foreign courts on matters of English and European private international law.