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CDL-AD(2006)009
b. Scope of the duty of Council of Europe member States to secure human rights
62. Under Article 1 of the ECHR, “The High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms defined in Section I of this Convention”30.
According to the European Court of Human Rights, the notion of “jurisdiction” is primarily
territorial. It does, however, exceptionally extend to certain other cases, such as acts of public
authority performed abroad by diplomatic or consular representatives of the State, or by an
occupying force; acts performed on board vessels flying the State flag or on aircraft or
spacecraft registered there.
63. There is a presumption that jurisdiction is exercised by the State throughout its territory.
States may also be held accountable for human rights violations occurring outside their territory
in certain situations31.
64. Article 2 of the International Covenant on Civil and Political Rights provides that a State
Party undertakes to “respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant.”
65. The term “jurisdiction” under the International Covenant on Civil and Political Rights is
comparable to the same term under the European Convention on Human Rights. It is also not
limited to territorial jurisdiction. The Human Rights Committee has held, for example, that
communications by persons who were kidnapped by agents in a neighbouring States are
admissible, reasoning that States Parties are responsible for the actions of their agents on foreign
territory32. The Human Rights Committee also clarified in its General Comment no. 31 that “a
State Party must respect and ensure the rights laid down in the Covenant to anyone within the
power or effective control of that State Party, even if not situated within the territory of the State
Party.”33
66. The duty of State parties under Article 1 ECHR to “secure” to everyone within their
jurisdiction “the rights and freedoms … of this Convention” is not limited to the duty of state
organs not to violate these rights themselves. This duty also includes positive obligations to
protect individuals against infringements of their rights by third parties, be they private
individuals or organs of third States operating within the jurisdiction of the State party
concerned (see para. 146 below). The European Court of Human Rights has, in particular,
30
Article 2 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment similarly States that “Each State Party shall take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its jurisdiction.” See para. 146.
31
See European Court of Human Rights, Issa v. Turkey judgment of 6 November 2004, §§ 71-74;
International Court of Justice, Advisory Opinion on legal consequences of the construction of a wall in the occupied
Palestinian territory, 9 July 2004, § 109. See also the views adopted by the Human Rights Committee on 29 July
1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and 56/1979, at
§§ 12.3 and 10.3 respectively. See Inter-American Commission on Human Rights, Coard v. US, Case 10.951,
Report No. 109/99, 29 September 1999, § 37, and Alejandre Cuba, Case 11.589, Report No. 86/99 29 September
1999, § 23.
32
Lopez Burgos, No 52/ 1979, § 12.3; Celiberti, No 56/1979, § 103.3; Persons who have fled abroad are not
prevented by Art 2 (1) from submitting an individual communication, No 25/1978, § 7.2; No. 74/1980, § 4.1; No.
110/1981, § 6; States parties are responsible for violations of the Covenant by foreign diplomatic representatives, No
31/1978; No 57/1979; Nr 77/1980, No 106/1981; No 108/1981; No. 125/1982
33
HRC General Comment 31, § 10.
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