Squinting Through the Pinhole: A Dim View of Human Rights from Tallinn 2.0

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  • September 7, 2017
In its chapter on international human rights law (IHRL), the Tallinn Manual 2.0 fails in its stated objective of furnishing “[s]tate legal advisors charged with providing international law advice to governmental decision makers” with “an objective restatement of the lex lata.” While the editors and authors plainly intend that their audience be mindful of human rights, the fluid and rapidly developing law in this area presents challenges, and so do widening divisions of opinion that are evident between governments, international experts, and civil society on what human rights law requires in the new digital age. To get the law right, the conscientious legal advisor should look elsewhere. Military and national security lawyers, chosen as experts to formulate and draft rules, may care deeply about human rights but generally do not develop deep familiarity with IHRL and its constitutive processes—that is more typical of human rights advocates, litigators, academics, and state specialists. Legal advisors should look first to treaty obligations and then more widely at international interpretation of rights from the most experienced states and practitioners in the international-, regional-, and state-level systems.