Human Rights and Jurisdictional Trajectories: Shedding Light on the Colonial Genealogy

Authors

Rongeet Poddar

Abstract

International law’s tryst with colonialism has continued to have a significant bearing on the shifting sands of jurisdiction in relation to human rights enforcement. Even as the apparition of empire loomed large over Third World states, a ‘universal’ yet non- binding catalogue of human rights had become reality with the birth of the UDHR. As recognized in Article 2 of the document, peoples of non-self-governing territories could also not be deprived of their human rights. However, hopes were belied when the ECHR, as the first binding post-War human rights instrument, was accompanied by a restrictive jurisdiction clause. The original Article 63 of the ECHR, which now reads as Article 56, conferred an unbridled discretion upon colonizing powers to bar the application of Convention safeguards to territories under their administration. When the time came to embrace an international treaty for human rights, the potential absence of a territorial application clause became a bone of contention. The subjects of conquest would consequently acquire legitimacy as right-holders in colonized territorial spaces. To offer a pushback, a surrogate ‘emergency’ provision to derogate human rights was accommodated in Article 4 of the ICCPR for providing a veneer of legality to the repression unleashed in the colonies. As the responsibility to protect doctrine gained currency as an emerging norm in the post-Cold War era, jurisdictional strategies have also undergone another transformation. By making ‘human security’ a paramount consideration to reorient state sovereignty, a clandestine mode of expansive jurisdiction has been inaugurated. The neo-colonial undercurrent of R2P offers an impetus to the idea of a humanitarian emergency that is externally imposed and justified in the name of shared international responsibility.

Recommended Citation

Poddar, Rongeet (2024) "Human Rights and Jurisdictional Trajectories: Shedding Light on the Colonial Genealogy," National Law School of India Review: Vol. 35: Iss. 2, Article 16.
DOI: 10.55496/MFWK4413
Available at: https://repository.nls.ac.in/nlsir/vol35/iss2/16

Digital Object Identifier (DOI)

10.55496/MFWK4413