State responsibility and ‘jurisdiction’

Abstract

Introduction This chapter examines the relevance of the notions of ‘national territory’ and of ‘jurisdiction’ to the determination of situations in which the international responsibility of States may be engaged. This has become one of the most debated issues in international human rights doctrine (see, among many others, F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (Antwerp-Oxford: Intersentia-Hart, 2004); M. J. Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, American Journal of International Law , 99 (2005), 119; O. De Schutter, ‘Globalization and Jurisdiction: Lessons from the European Convention on Human Rights’, Baltic Yearbook of International Law , 6 (2006), pp. 183–245; M. Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of Human Rights Treaties (Antwerp: Intersentia, 2009); F. Hampson, ‘The Scope of the Extra-territorial Applicability of Human Rights Law’, in G. Gilbert, F. Hampson and C. Sandoval (eds.), The Delivery of Human Rights, Essays in Honour of Professor Sir Nigel Rodley (London: Routledge, 2010), pp. 156–82); M. Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford University Press, 2011). The main question addressed in much of the literature is whether the notion of ‘jurisdiction’ (taken separately or in combination with that of ‘territory’) designates a condition for a finding of State responsibility which is distinct from that of attribution, or whether instead the two notions – ‘jurisdiction’ and ‘attribution’ – are in fact synonymous and thus interchangeable. And this is indeed the question this chapter focuses upon, although breaking it down into a set of sub-questions corresponding to the different situations in which the question of State responsibility can be raised.