Human Rights Obligations of the Territorial State in the Cyberspace of Areas Outside Its Effective Control

Abstract

The absence of control of a territorial state over part of its physical territory is closely associated with online human rights violations, on the one hand, and the state's restricted (but not necessarily absent) control over the cyberspace, on the other. Notwithstanding the lack of its effective territorial control, the territorial state continues to be entitled to exercise its sovereignty over both territory and cyberspace. The consequence of sovereignty in international human rights law is the territorial state's presumed jurisdiction over its entire national territory. The article claims that the territorial state, while lacking the effective means to control its cyberspace fully as it does in the government-controlled areas, has continuing jurisdiction, and consequently obligations, to protect human rights online from wrongful acts that originate, occur or have effect in the area outside its effective control. Treaty monitoring bodies have recommended various positive measures that any territorial state is required to take while seeking to restore its ‘internet sovereignty’ in the separatist region, depending on the means in its power that are feasible in the particular situation.