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- Title
FILLING THE LACUNA: DE FACTO REGIMES AND EFFECTIVE POWER IN INTERNATIONAL HUMAN RIGHTS LAW.
- Authors
TAN, DARON
- Abstract
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.
- Subjects
HUMAN rights; LACUNAE in law; INTERNATIONAL law; POWER (Social sciences); MILITARY government; MILITARY occupation; CIVIL rights
- Publication
New York University Journal of International Law & Politics, 2019, Vol 51, Issue 2, p435
- ISSN
0028-7873
- Publication type
Article