In this chapter, it is argued that at their inception, human rights treaties took for granted the Westphalian frame. The legal framework for the realization of human rights depended upon functioning political communities organized as states. Human rights law is best understood as resting upon, and assuming, the efficacy and validity of the concrete legal order of the state. The legal relationship presupposed by human rights treaties is the relationship between constituted sovereign and subject (citizen or not). It is a relationship not of mutual hostility between belligerents or justis hostes, but of political friendship. The key challenge of the extraterritorial application of human rights law is how to transpose these legal norms on to quintessentially abnormal or exceptional situations such as military occupation or armed conflict. The chapter argues that the result is a deformalization of human rights law, as evidenced in the case of Hassan v. United Kingdom.
|Name||The Collected Courses of the Academy of European Law|
|Publisher||Oxford University Press|
- human rights
- concrete order
- Carl Schmitt