Access Rights – Challenging External State Action and Violations of International Law before Domestic Courts

Access to domestic courts may be significantly limited for victims of international law violations. This is particularly so when it comes to external state action, for example in the course of military and security operations. Next to practical obstacles, affected individuals face legal hurdles, ranging from judicial abdication to the inapplicability of domestic liability regimes. This seems to be at odds with two frequently alleged phenomena, namely the individualisation of international law as well as the growing entanglement of international and domestic law. Against this prima facie discrepancy, the thesis investigated where and how international law entitles individuals to access domestic mechanisms of legal protection for challenging external action and violations of international law.

The thesis followed three lines of enquiry. The first part developed and carved out the concept of access rights, understood as those rights that entitled individuals to use domestic mechanisms of legal protection. Part One also outlined the two most prominent types of access rights: the right to a remedy and the right of access to a court.

The second part turned to the field of external action where individuals arguably face the biggest hurdles. After examining the applicability of access rights in external action, it investigated where and how the existing hurdles conflict with access rights. Next, the thesis used access rights as an analytical lens. It critically reviewed the concerns that underlie the overall reluctant stance of domestic courts in cases involving external action and international law, and juxtaposes them with competing (individual) interests. In doing so, it outlined the impact of access rights on the adjudication of cases arising from external action.

Analysing access rights also yields insights for the study of both international law and individual rights, which was the subject of the third line of enquiry. Strong access rights would seem to be of crucial value for normative projects such as global constitutionalism or the international rule of law; they would arguably constitute the capstone of international law’s individualisation. At the same time, many will consider them to be a primary example of “rights inflation” or “human-rightism”. What is more, access rights clearly have limits, prompting questions as to the value and merits of individual rights in contested contexts that lie at the crossroads of domestic law, international law and foreign affairs.