Investigating the extraterritorial application of the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights

Abstract

The territorial scope of the application of human rights treaties has been a core discussion when dealing with the enforcement of human rights obligations imposed by human rights treaties on State Parties. In particular, this is because the conduct of a State may affect the human rights of people situated outside the State’s territorial borders. Accordingly, to afford protection to the affected States, most international human rights instruments contain the so-called jurisdictional clause which aims to identify the range of people to whom States owe their human rights obligations under a treaty. However, the term “jurisdiction” has not achieved an undoubted definition as yet and remains a continued area of contention. The subject matter of this article is the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). It concerns therefore, the applicability of these human rights treaties to the conduct of a State which affects the rights of people outside its territorial borders and results in the lack of the full enjoyment of the human rights recognised in the Covenants, and which would be qualified as a violation of human rights treaty had it been undertaken on the State Party’s own territory. Although most of the literature on this topic relates specifically to armed conflict and military occupation, the author applies the tests established for the determination of the exterritoriality of the treaties in circumstances inclusive of and beyond armed conflict and military occupation.