Digital transnational repression and the limits of international human rights law in a ‘post-territorial’ world

Human rights defenders, journalists, and other members of civil society living in exile who challenge the authoritarian practices of their country of origin are increasingly confronted with territorially-unbounded methods of repression. In transnational repression, states use methods such as killings, disappearances, harassment, extradition, and online harassment, hacking, and surveillance to silence individuals and communities abroad who challenge the state. International human rights law has, however, not moved as quickly to address the cross-border use of digital technologies as repressive states have adopted them, leaving dissidents and exiles at risk.

The limits of human rights law

States and international institutions increasingly see international human rights law as the appropriate framework for prevention and mitigation of transnational repression. A rights-based response correctly focuses on remedying harm done to targeted individuals. 

While state sovereignty and national security are also part of policy responses, only a rights-based framework captures the harms that flow from transnational repression in a way that gets at the core of why this practice is deeply problematic and dangerous. Transnational repression leads to violations of the right to life, freedom of expression and peaceful assembly, and the right to privacy, among other rights. This severe impact on individuals quashes the global space for social and political dissent.

However, there is a gap in the scope of application of international human rights law and the protection it offers to victims of transnational repression. International human rights law doctrine has not completely adjusted to what some have described as a ‘beyond-territory’ world, where human rights harms are not confined to the boundaries of the state but also impact individuals living outside the territorial borders of the infringing state. 

This is particularly the case with respect to acts of digital transnational repression, where states engage in extraterritorial repression facilitated by digital technologies, like online disinformation, harassment campaigns on social media, or using spyware to hack into a dissident-in-exile’s phone. 

Jurisdictional grey zones

The scope of application of human rights treaties is generally limited to individuals located within the jurisdiction (or territory) of a state. In other words, even in cases where there may be a substantive human rights violation, a state will not be considered as owing a human rights obligation under the relevant human rights treaty to the harmed person if that person falls outside the so-called jurisdiction of the state. So, when a person is harmed by the state and they want to make a human rights complaint to a regional or international human rights treaty body, they need to show that they fall within the jurisdiction of the state. Absent this, the complaint, generally speaking, cannot proceed.

From a policy perspective, it makes sense to circumscribe to some degree the human rights obligations owed by states to individuals under regional and international human rights treaties. Without some guardrails, states may simply not be willing to ratify such treaties, which could require them to guarantee the human rights of individuals very remote to them. Yet, there is an increasingly large grey zone where scholars and human rights activists argue that states owe human rights obligations to persons outside the infringing state (climate change is one significant example).

Thus, the interpretation of who falls within the jurisdiction of the state is highly debated. That said, it is generally agreed that there are two situations where individuals outside a state can still fall within the jurisdiction of that state for the purposes of the application of international human rights law. One is the territorial model, where the person is within territory in the ‘effective control’ of the infringing state, like occupied territories. Another, the personal model, is where the infringing state exercises some form of control or authority over the person whose human rights are harmed, such as when the state detains someone abroad. 

The digital element of transnational repression calls for a new model

Transnational repression is a helpful case study for showing how these two existing models of the extraterritorial application of human rights treaties may lead to different results for so-called analogue versus digital human rights violations in a problematic and ultimately unprincipled manner. Their limitations in this regard highlight the need for adoption of a new third model that properly encapsulates extraterritorial jurisdiction in a digital age. 

For example, in 2021, the European Court of Human Rights (ECtHR) held in Carter v. Russia – a case dealing with the extraterritorial killing by Russian state agents of a Russian dissident living in exile in the UK – that such a targeted extraterritorial killing meant that the individual was within Russia’s jurisdiction (their control) at the time of their killing and the case could proceed despite jurisdictional objections. 

Contrast this with 2023’s Wieder and Guarnieri v. UK ruling, which addressed the legality of the UK’s bulk interception of communications. Because the plaintiffs were located outside the UK, the question of extraterritorial human rights obligations and jurisdiction was a vital concern. Yet, despite the centrality of this issue, the ECtHR essentially skipped over the debate around jurisdiction and extraterritorial surveillance to conclude that the interception of communications abroad was an act that took place within the territory of the surveilling state and thus fell within the traditional territorial model of jurisdiction.

While Wieder and Guarnieri was still a positive development – the case was not thrown out on the basis of jurisdiction and a human rights violation was ultimately established – this decision does not help us determine whether cases of digital transnational repression will be blocked from proceeding in front of human rights treaty bodies because of the jurisdictional question. 

A third model of jurisdiction – sometimes called the ‘impact’ or ‘causality-based’ model of jurisdiction – might provide a satisfactory answer to this question, maximising rights protection while also balancing states’ reluctance to sign up for broad human rights obligations. 

Under this model of jurisdiction, the state owes human rights obligations to individuals who could be or are directly and foreseeably harmed by the activities of the state, regardless of whether they are located inside or outside the state. Thus, in cases of digital transnational repression, where the state takes specific, targeted actions against individuals located abroad in order to silence them, jurisdiction would probably be established. 

We have seen hints of this model described by the UN Human Rights Committee, which has observed that a state owes human rights obligations where it has a ‘direct and reasonably foreseeable impact on the right to life of individuals outside their territory’. 

Similarly, in an advisory opinion on transboundary environmental harms, the Inter-American Court of Human Rights found that jurisdiction could be established where ‘there is a causal link between the action that occurred in its territory and the negative impact on the human rights of persons outside its territory.’ 

These cases illustrate that there has been at least some discussion regarding a more flexible model of jurisdiction in international human rights law. Despite this, there is work to be done. 

Ensuring protection, on- and offline

When we examine the practice of transnational repression through its digital facet – states’ use of digital technologies to engage in repressive acts aimed at persons in exile – we see a gap in human rights protection that needs to be closed. The impact- or causality-based model of jurisdiction may be the correct approach, balancing the interests of states against the need to maximise human rights protection and ensure that such protection is principled and not just contingent on whether analogue or digital methods of human rights violations are used. 

However, while some of the cases discussed here have hinted at this more flexible approach to jurisdiction in international human rights law, it is far from clear that such a model has been established. Treaty bodies will need to offer more clarity regarding extraterritorial human rights obligations as more ‘beyond territory’ type cases arise.