Article
Wouter Vandenhole
complied with.”48 The existence of a negative duty had earlier been identified by the ICJ in the Nicaragua judgment : ‘The Court considers that there is an obligation on the United States Government, in the terms of Article 1 of the Geneva Conventions, to “respect” the Conventions and even “to ensure respect” for them “in all circumstances”.’ It was argued that this rule did not only derive from the Geneva Conventions themselves, but also from the general principles of humanitarian law.49 Similarly, the ICJ held in the Bosnia case that the rights and obligations enshrined by the 1950 Genocide Convention are rights and obligations erga omnes, and that the obligation each state has to prevent and to punish the crime of genocide is not territorially limited by the Convention.50 Craven has pointed out that this judgment ‘does (…) raise the possibility that, absent a jurisdictional clause, human rights treaty obligations may generally be regarded as extending to all acts of state irrespective of where they may be taken as having effect.’51 Regional monitoring bodies and courts, and United Nations treaty bodies are increasingly used to test extraterritorial claims. The European Court of Human Rights has consistently argued that jurisdiction is primarily territorial, thereby limiting – though not necessarily excluding – extraterritorial human rights obligations (see below under the attribution of extraterritorial conduct).52 The inter-American Commission on Human Rights, using the criterion of exercise of authority or control over persons by agents of the State, has held that Colombia exercised extraterritorial jurisdiction during the period that its troops operated on Ecuadorian soil.53 The UN treaty bodies have been paying more attention to the issue in their periodic review of state reports and general comments. The Human Rights Committee has clearly accepted that the Covenant rights must be guaranteed to “anyone within the power or effective control of [a] State party, even if not situated within the territory of the State party”, including to “those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.”54 The CESCR has been most explicit in recognizing extraterritorial obligations, which it has coined ‘international obligations’, in a good deal of its general comments.55 As far as litigation on extraterritorial obligations in the area of ESC 48
Ibidem, para. 158. ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement of 27 June 1986, ICJ Reports (1986), p. 114, para. 220. 50 ICJ, prel obj, Case concerning Application of the Convention on the Prevention and Punishment of Genocide (Bosnia-Herzegovina v. Yugoslavia), (11 July 1996), ICJ Reports (1996), p. 616, para. 31. 51 M. Craven, “Human Rights in the Realm of Order : Sanctions and Extraterritoriality”, in F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, Antwerp, Intersentia, 2004, p. 251. 52 For the most recent Grand Chamber Judgment, see ECt.HR (GC), judgment Al-Skeini and others v. United Kingdom of 7 July 2011 (appl. No. 55721/07). 53 IAComHR, adm. Decision, Franklin Guillermo Aisalla Molina v. Ecuador of 21 October 2010 (IP 02), paras. 98-102. 54 HRC, General Comment 31 (2004), The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004 (CCPR/C/21/Rev.1/Add. 13), para. 10. 55 For an analysis, see M. Langford, F. Coomans and F. Gómez, “Extraterritorial Duties in International Law”, in M. Langford, W. Vandenhole, M. Scheinin and W. van Genugten (eds.), Global Justice, State Duties. The extraterritorial Scope of Economic, Social and Cultural Rights in International Law, Cambridge, Cambridge University Press, 2013, pp. 51‑113 ; F. Coomans, “The Extraterritorial Scope of the International Covenant on Economic, Social and 49
816|European journal of Human Rights
|2013/5
Journal européen des droits de l’homme