circumstances, “persons may fall under the subject-matter of a State Party [to the ICCPR] even when outside that State’s territory.” 73 37. The International Court of Justice has confirmed that the ICCPR is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory. 74 The Court observed that, “while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions.” 75 38. Similarly, the Committee against Torture has affirmed that the non-refoulement obligation contained in Article 3 of the Convention Against Torture applies in any territory under a State party’s jurisdiction. 76 With regard to those provisions of the Convention Against Torture which “are expressed as applicable to ‘territory under [the State party’s] jurisdiction’”, the Committee Against Torture reiterated “its previously expressed view that this includes all areas under the de facto effective control of the State party, by whichever military or civil authorities such control is exercised” and made it clear that these provisions “apply to, and are fully enjoyed, by all persons under the effective control of its authorities, of whichever type, wherever located in the world.” 77 39. The extraterritorial applicability of human rights treaties is also firmly established at the regional level. The European Court of Human Rights has examined the concept of “jurisdiction” in a number of decisions and consistently held that the decisive criterion is not whether a person is within the territory of the State concerned, but whether or not, in respect of the conduct alleged, he or she is under the effective control 73 74 75 76 77 Human Rights Committee in Pereira Montero v. Uruguay, U.N. Doc. CCPR/C/18/D/106/1981, 31 March 1983, para. 5. See, for example, Concluding Observations of the Human Rights Committee, United States of America, U.N. Doc. CCPR/C/79/Add.50, 3 October 1995, para. 284. In 2006, the Human Rights Committee also reaffirmed the applicability of the provisions of the ICCPR with reference to conduct of the United States at Guantánamo Bay. See Concluding Observations of the Human Rights Committee, United States of America, supra footnote 47, para. 10. See also Concluding Observations of the Human Rights Committee, Israel, U.N. Doc. CCPR/C/79/Add.93, 18 August 1998, para. 10 and U.N. Doc. CCPR/CO/78/ISR, 21 August 2003, para. 11. See the Advisory Opinion of the International Court of Justice in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (2004) ICJ Gen. List No. 131, 9 July 2004, para. 111. See also the recent judgement of the International Court of Justice in Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), (2005) ICJ Gen. List No. 116, 19 December 2005, para. 216. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra footnote 74, para. 109. See, for example, Committee Against Torture, Conclusions and recommendations of the Committee against Torture concerning the second report of the United States of America, supra footnote 47. Having requested the State Party’s views on the extraterritorial applicability of Article 3 of the Convention against Torture in the context of Guantánamo Bay, the Committee expressed its concern (“…that the State party considers that the non-refoulement obligation, under article 3 of the Convention, does not extend to a person detained outside its territory. … The State party should apply the non-refoulement guarantee to all detainees in its custody, …, in order to comply with its obligations under article 3 of the Convention. …”) (para. 20). Id., para. 15. This applies, inter alia, to Article 16 of the Convention Against Torture, which prohibits acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1 of the Convention. 17