20 December 2013

Jurisdiction and the Allocation of Obligations under Human Rights Law to Multiple States

© Getty Images, BBC

© 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.

The threshold function of jurisdiction already entails a degree of allocation. States that have jurisdiction outside their borders will have obligations under the human rights treaties to which they are a party. Those states that do not exercise the required amount of factual control abroad are not. This is not to say that those states have no obligations under human rights law whatsoever, as jurisdiction is just one, albeit an important, basis for human rights obligations. States may also have certain obligations that do not depend on jurisdiction, such as the obligation to prevent genocide or (developing) obligations to cooperate under economic, social and cultural rights. Such universal obligations may be based on the capacity to effectively influence or being in a position to assist other states. Therefore, jurisdiction as a threshold allocates obligations by distinguishing between states that have obligations based on jurisdiction and states with obligations that do not depend on jurisdiction. However, the allocating function of jurisdiction does not end there.

There is no principled reason why only one state can or should have jurisdiction over a territory or (group of) individual(s). In other words, depending on how strict or lax the threshold of jurisdiction is interpreted to be, there will be more or less room for overlap. However, compared to the amount of research focused on the threshold function of jurisdiction, a lot less effort has been put into exploring the content and scope of obligations on the basis of jurisdiction once states pass the threshold of factual control. So far, it has remained unclear whether and how situations of overlapping jurisdiction influence the scope of obligations of the different states. Imagine a situation in Mali, where terrorists attack civilians. Mali has lost effective control over the region in which the attack takes place. French and Dutch troops acting under a UN peacekeeping mandate are stationed in the area. Several of the civilians flee to the peacekeepers compound looking for protection. Which of the three states has jurisdiction and what are their obligations? And if they all have some form of jurisdiction, which seems likely, does this influence the scope of their obligations? For example, are Mali’s obligations less extensive because of the presence of the peacekeeping force? Does the formal mandate of the peacekeeping force matter in this respect? Or, if Mali still has troops stationed in the area and therefore retains some level of control, does this limit the peacekeepers obligations to act?

Very few cases have so far been decided on by courts that could shed some light on these issues. This does not mean that situations where multiple states are involved in human rights abuses are necessarily exceptional. Rather, most courts have procedural rules that bar claims to be brought against more than one state at a time or to decide on matters involving the legal interests of a third state which is not a party to the dispute. The case law of the ECtHR is leading in regard to issues of multiple state jurisdiction, because its procedural rules allow multiple states to be involved in the same case. An important example of multiple state jurisdiction is the Ilascu case. The ECtHR acknowledged that both Russia and Moldova had a jurisdictional link with prisoners detained by the separatist regime in the Transnistrian region and were responsible for the violation of several of their rights. The main allocating principle in terms of jurisdiction arising from the Court’s case law is the special position of the home state. Even when a state loses all or some of its factual control over a part of its territory, like Moldova in the Ilascu case, it is still expected to take steps to re-establish control and at the same time make an effort to protect the rights of people residing in such areas. But the Ilascu case proves that also states carrying out extraterritorial jurisdiction, such as Russia, may have obligations even if the principal wrongdoer is a separatist regime in a foreign country. Unfortunately, the Court did not spend much time discussing the relationship between the scope of obligations of Moldova and Russia. The Court’s conclusion that Moldova only had positive obligations followed from the lack of control over part of its territory due to the reign of the separatist regime. Russia’s special relationship with the separatist regime, in turn, meant that it had the capacity to influence its decisions and therefore to prevent the violations committed against the applicants. The Ilascu case therefore underlines that the allocation of obligations to multiple states with jurisdiction should be based on states’ capacity to secure rights.

Returning to the Mali-example, Mali as the home state has positive obligations to re-establish control and make an effort to protect the civilians under attack. If it still had troops in the region concerned, this would likely mean their deployment to protect the civilians and perhaps even asking for the assistance of the peacekeepers if they have the mandate to use force. This is of course subject to reasonable limitations of what is possible and proportionate in the specific circumstances. If the peacekeepers do not have such a mandate, the question remains whether Mali’s efforts to protect its civilians would have to be enhanced, knowing that it cannot count on the peacekeepers’ support. France and the Netherlands in any case have jurisdiction over the individuals who fled to their compound and are obligated to protect their rights as relevant to the circumstances. This means not sending them away if it is foreseeable that they will be tortured or killed. In conclusion, the increasing amount of research and number of cases concerning the extraterritorial applicability of human rights obligations shows wide recognition of the fact that a state’s capacity to secure human rights can be limited or complemented by other actors. The allocating function played by jurisdiction in regard to human rights obligations would become more transparent if other states that have jurisdiction and the capacity to act in specific situations are more structurally taken into account.

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