Tag Archives: Jurisdiction
This paper critically reviews the popular proposition that ‘power breeds responsibility’. It first explains why this proposition is intuitively appealing. Particularly in situations where multiple actors contribute to harm, power can be a criterion for determining who of a multitude … Read more
20 December 2013
© Getty Images, BBC
Much has been said and done in recent decades to explore and exploit extraterritorial applicability of human rights. Whether in court cases or scholarly works, the debate has usually revolved around the concept of “jurisdiction”, as used in human rights treaties to demarcate their applicability. Jurisdiction, first and foremost, functions as a threshold for applicability of human rights treaties. Many opinions have been heard on the criteria that should be met before a state has jurisdiction and whether jurisdiction should form a high or low threshold. Without wanting to dwell on this issue too much, suffice it to say that international legal discourse has moved towards an understanding of jurisdiction as based on factual control exercised by a state over people. As explained by the European Court of Human Rights (ECtHR) in the 2011 Al-Skeini case this factual control can either be exercised in the form of effective control over territory or in the form of authority and control over people. In this blog, I submit that an important function of jurisdiction that is yet to be further explored is its role in the allocation of human rights obligations. (more…)
21 November 2013
The United States and Afghanistan have agreed on a bilateral security agreement that would allow for a lasting American troop presence through 2024. On the controversial issue of American searches of Afghan homes, the draft states that American counterterrorism operations will be intended to ‘complement and support’ Afghan missions. It underscores that Afghan forces will be in the lead and that any American military operations will be carried out ‘with full respect for Afghan sovereignty and full regard for the safety and security of the Afghan people, including in their homes.’
The draft also states that United States military personnel would be subject only to American military law, and that Afghanistan pledges not to turn them over to any international tribunals. It does, however, grant Afghanistan jurisdiction over contractors.
Source: The New York Times | Pact May Extend U.S. Troops’ Stay in Afghanistan
25 February 2013
The extraterritorial applicability of human rights obligations is still a hotly debated topic. As most human rights treaties contain a jurisdiction clause which limits their effect to territories or people over which a state has some form of authority or control, the discussion tends to focus on the proper interpretation of the term jurisdiction. Courts and supervisory bodies confronted with interpreting the outer limits of jurisdiction clauses, for instance pertaining to situations of foreign occupation or arrests conducted by state agents abroad, have conceded that jurisdiction does not mean that a state’s human rights obligations end at its borders. The question that remains is when states are required to secure human rights for people outside their borders and to what extent.
Until recently, most of the discussion focused on instruments which by and large contain civil and political rights (CP rights). This can perhaps be explained by the simple fact that these instruments have explicit jurisdiction clauses and, quite importantly, also have international supervisory bodies competent to decide on (individual) complaints, thus creating a body of case-law on the subject. Therefore, a lacuna was filled when in 2011 a group of experts adopted the Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights. (more…)
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12 February 2013
The recently published book Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (CUP 2013) contains several chapters dealing with questions of shared responsibility. The book is edited by Malcolm Langford, Wouter Vandenhole, Martin Scheinin and Willem van Genugten.
This book asks the question if states possess extraterritorial obligations under existing international human rights law to respect and ensure economic, social and cultural rights and how far those duties extend. Issues that are addressed in the book include jurisdiction, causation, division of responsibility, remedies and accountability.