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

 Posted by: Have Nienke van der

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.

The Maastricht Principles on Extraterritorial Obligations in the area of ESC rights – Comments to a Commentary

 Posted by: Have Nienke van der

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. The Principles aim to elucidate the legal framework in which economic, social and cultural rights (ESC rights) apply extraterritorially. At the end of 2012, six of the experts published a Commentary to the Principles, seemingly trying to mimic the working method of the International Law Commission or UN human rights treaty bodies in elaborating on a set of standards by issuing an interpretative document. This blog will discuss two elements of the Commentary’s rich content: the use of the concept of jurisdiction and the question of allocation of obligations among multiple states.

The concept of jurisdiction in the Commentary

The International Convention on Economic Social and Cultural Rights (ICESCR) is an exception to the rule that most human rights treaties contain jurisdiction clauses. However, apparently convinced that the term jurisdiction offers a useful tool to delimit a state’s extraterritorial human rights obligations more generally, the Maastricht Principles give it a central role. The Committee on Economic Social and Cultural Rights is not yet competent to decide on individual complaints, meaning a lack of case-law. Nor has it explained how the term jurisdiction relates to ESC rights in, for example, its General Comment 3. It is remarkable and questionable, therefore, that the Principles are pinned on this concept regardless. The Commentary to Principle 9, literally dealing with the ‘scope of jurisdiction’, simply states that jurisdiction has ‘notoriously’ served as both a threshold criterion and basis for human rights obligations extraterritorially.

Furthermore, while the Commentary states that extraterritorial applicability of obligations under ESC rights is broadly similar to CP rights, its progressive tone suggests otherwise. In the Principles and Commentary, jurisdiction seems to be used as a basis to expand a state’s extraterritorial human rights obligations rather than demarcate the limits (see for example Principle 25 and Ryngaert’s comments on EJIL:Talk!). Principle 9 sub a refers to situations where a state carries out authority or effective control abroad, which most closely resembles the interpretation of jurisdiction in CP rights context.  Sub c, however, stretches the concept of jurisdiction to situations where a state ‘is in a position to exercise decisive influence or to take measures to realize’ ESC rights. This ground is included to account for obligations of international cooperation and assistance, which have an important role in the ESC rights context – as will be explained below.

It is not disputed here that obligations of international cooperation and assistance should indeed be included in a framework for the extraterritorial applicability of ESC rights. However, it is unclear why the authors of the Commentary tried to square such obligations with the notion of jurisdiction. Perhaps it would have been less conceptually confusing to label obligations of international assistance and cooperation as universal obligations going beyond a state’s jurisdiction, which is not to say they are not subject to certain requirements and limitations (Principle 10). For now it seems we are left with a fragmented concept of jurisdiction, which has distinct meanings in the context of ESC and CP rights.

Cooperation and the inevitable question of allocation

Article 2 of ICESCR stipulates that parties to the Convention must undertake ‘to take steps, individually and through international assistance and co-operation […] with a view to achieving progressively the full realization of the rights recognized in the present Covenant.’ From a policy perspective, obligations of international assistance and cooperation are based on the realization that ESC rights cannot be realized worldwide without cooperatively addressing certain structural causes of inequality.  As a legal basis for these obligations, academics mainly refer to article 56 in the UN Charter, article 28 of the Universal Declaration of Human Right and finally article 2 ICESCR, sometimes powered by reference to the lack of a jurisdiction clause in the latter treaty. The Commentary also mentions the Declaration on the Right to Development, Vienna Declaration and Programme of Action, and Millennium Declaration, stating that ‘such commitments have implications for the interpretation of the obligations of states under the human rights treaties’ (Commentary to Principle 29 para 2). A strong claim can therefore be made for the existence of binding obligations of international assistance and cooperation for the realization of ESC rights. The Commentary is, however, realistic in admitting that the exact status and content of these obligations to assist and cooperate internationally are not yet agreed upon by states in practice (Commentary to Principle 3 para 7).

The inevitable question following the assertion of international obligations to assist and cooperate is: who should do what? In other words, how are obligations of assistance and cooperation divided and allocated among multiple states? The Commentary takes an interesting stab at trying to offer solutions in this regard. For example, it tentatively brings up the principle of common but differentiated responsibility (Commentary to Principle 30) – a principle mainly used in the area of environmental law as a way to distribute shared obligations on a differentiated basis. The obligations are deemed shared, because imposing them on one state alone would be ineffective if not supported by coordinated action by other states. In turn, the differentiation is based on a state’s past contributions to a problem and current capacities to solve it. The idea of applying this principle in human rights law context is not at all strange, since capacities of states to influence or assist already play a role in the distribution of obligations in extraterritorial context (see for example Commentary to Principle 31). But it would take a great deal of refinement to make it a central principle in ESC rights context.

One of the most novel and perhaps useful elements of the Maastricht Principles and Commentary in this regard, is that it forwards a procedural obligation for states to devise a suitable system of dividing responsibility. This procedural obligation exists alongside the substantive obligation to cooperate. The obligation seems to consist of an expectation that states will enter into deliberations about a system of allocation with other actors in good faith. The Commentary hints at initiatives in the area of developing criteria for allocation and indicators to monitor progressive realization, but leaves open what other options there are to comply with the procedural obligation. One could, for instance, envisage the creation of platform institutions for the coordination of efforts among different actors and policy areas as a crucial part of this procedural obligation (see for example the Committee on World Food Security). As it is currently framed, the procedural obligation seems rather weak, as it is not geared towards a specific goal and is merely a duty of conduct to be tested against the broad standard of good faith. Nevertheless, it will be extremely interesting to see how it develops.

Update – The Dutch Courts and Asylum at the ICC: From Shared Obligations to Obligations of No One

 Posted by: Irving Emma

In October 2012, the SHARES Blog carried a post that discussed a September Dutch Court decision concerning the on-going asylum situation at the ICC. Since then there are have been two important developments: the matter has been taken to the European Court of Human Rights (ECtHR) and the original Dutch decision has been overturned on appeal.

First, one of the detained witnesses sought to challenge his detention by bringing a claim against the host State of the ICC before the European Court of Human Rights (ECtHR). However, the application in Longa v The Netherlands was declared inadmissible on the basis that The Netherlands had no jurisdiction under Article 1 of the European Convention on Human Rights. While acknowledging that jurisdiction is primarily linked to territory, the ECtHR drew on previous case law dealing with the ICTY to decide that the mere presence of the ICC on Dutch territory is not sufficient to engage Dutch jurisdiction. It went on to dismiss the arguments made that the level of human rights protection at the ICC is deficient, and then rejected the notion that by accepting jurisdiction to hear the asylum claims the Netherlands had also accepted jurisdiction under the Convention. The Court held that there was no obligation on member States of the ECHR to allow a person to await to outcome of an asylum claim on its territory.

Armed with the Longa decision, the Dutch authorities filed an appeal to the earlier Dutch Court decision that would have compelled The Netherlands to take over control of the witnesses. The Appeals Court overturned the first instance decision on 18 December 2012. In this decision, the Dutch Appeals Court denied the lower court’s assertion that the witnesses were in a dead end detention situation, which as it had no end in sight, had therefore become illegal. It was held that just because the asylum procedure was lengthy, did not mean it was unending. The Court held that in any case, it was not for it to consider whether there was a conflict between the detention and Articles 5 and 13 ECHR: as the ECtHR had said in Longa, the Netherlands lacked jurisdiction under Article 1.

Once the ECtHR handed down its opinion on the situation of the detained witnesses, The Netherlands was offered an easy way out of the compromising position which the judge of the first instance court had placed it in. The Dutch authorities were no longer compelled to take over the witnesses, and suffer the precedential and political consequences that would entail. However that does not remove the question of whether the Longa decision was indeed a good one. On closer inspection, one might wonder whether the precedent the ECtHR relied on was not easily distinguishable. Having read the arguments of the applicant, one is struck by the fact that the ECtHR seems to have overlooked a number of relevant facts which may have led it to a different conclusion.

It is to be regretted that an unconvincing decision of the ECtHR has left the witnesses detained at the ICC unprotected. The September Dutch Court decision arguably took the better approach to the legal questions raised by the situation. Now the most pertinent question is to whom can the witnesses turn to seek relief? Not to the ICC, nor the DRC, and now not to the Netherlands. The result is an example of where shared obligations result in obligations for no one.