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Экстерриториальное применение как проблема концепции прав человека
INTRODUCTION. If the legal recognition of human rights depends on belonging to “all members of the human family”, then the existence of the scope of application of human rights ratione loci is logically contradictory. Either there should be no territorial restrictions on the application of human rights, or the provisions of the Universal Declaration of Human Rights are false. This contradiction affects the basic feature of human rights, and therefore, being a contradiction, in the future it may serve as a driver for transforming the concept in a dialectic vein. This article suggests imagining how this could happen and what it could entail.
MATERIALS AND METHODS. In this paper, an attempt is made to consider the further development of human rights in a dialectical way. Based on the existing studies of the European Court’s of Human Rights (hereafter ‒ ECtHR) practice on the extraterritorial application of the European Convention on Human Rights (hereafter ‒ ECHR), two main approaches (territorial and personal) are described. Analysing the approaches, two statements are formulated that create an internal contradiction to a concept of the scope of application of human rights ratione loci. The contrast created by the peculiarities of the ECHR's human rights protection mechanisms, as well as the accents that were stressed by the developing functional approach, allowed us to determine which change could resolve the formulated contradiction. The analogy with Roman law, in turn, allowed for projecting possible problems of implementing such changes.
RESEARCH RESULTS. The dilemma of the universality of human rights and the limitations of their extraterritorial application can be resolved through the concept of natural obligations if one breaks the logically necessary link between rights and remedies, putting them under different grounds of existence. The analogy with Roman law allowed us to conclude that such a solution to the dilemma is dangerous for both obliged and entitled persons, which makes such a development unlikely. However, if the formulation of the contradiction is correct, then this path may be the only possible one.
DISCUSSION AND CONCLUSIONS. By placing human rights and remedies on different grounds, the problem of extraterritorial application is resolved at the cost of triggering (or exacerbating) others. The concept of human rights would go far beyond the legally relevant issues, trespassing into the domain of ethics; if one strictly follows the analogy of Roman law, a significant part of modern human rights law risks being outside the borders of jurisprudence. However,
the difference between Roman law and modern international law, which consists in the absence of one common "state", may become an important incentive for adapting the idea of natural obligations. Nevertheless, this idea may make it possible to create a clear focus of international human rights law on the remedies on the international plane, diverting attention from proclaiming them; perhaps this will reduce the number of formal legal arguments in favour of human
rights violations in the framework of political communication on the international arena.