CHAPTER 4: the EXTRATERRITORIAL responsibilities of States and companies EXPORTING LAW ENFORCEMENT EQUIPMENT While states have clear responsibilities to respect and protect human rights within their own territories, and jurisdictions, the concept of extra-territorial legal responsibility for human rights violations in certain circumstances is increasingly recognized. Article 55 of the UN Charter requires member states to promote the full range of human rights, including “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”133 All UN member states are bound by an obligation in Article 56 of the UN Charter “to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.”134 These UN Charter provisions reflect a positive obligation of all states to co-operate in the protection and fulfillment of human rights within and beyond their borders. Under the International Law Commission’s (ILC) articles on state responsibility, a state can be held responsible for certain harms or wrong that occur outside its territory, if it knowingly “aids or assists another State in the commission of an internationally wrongful act”.135 This would include, for example, the provision of material aid, such as military weapons or law enforcement equipment, to a state that is known to use such equipment to commit serious human rights violations or war crimes.136 Internationally wrongful acts include serious violations of international human rights law and international humanitarian law constituting peremptory norms of international law (jus cogens).137 For example, a state may be aiding or assisting other states in committing torture if it permits the manufacture and export from its territory of equipment that can only be used for acts of torture. The responsibility of the exporting state does not diminish the responsibility of the state that imports the equipment and uses if for torture. However the exporting state must take into account relevant foreseeable factors that indicate the weapons or other equipment under consideration would pose a substantial risk of being used for serious violations of human rights such as torture and other illtreatment, and if so take the necessary action within its legal and technical capacities to prevent that export.138 A state’s failure to prevent the export of such equipment where it has knowledge of persistent violations of peremptory norms such as the prohibition of torture and other ill-treatment may expose it to legal claims by victims that it has failed in its obligations under international law, and that its omissions permitted a situation in which their fundamental human rights were violated. EXTRA-TERRITORIAL RESPONSIBILITY IN RELATION TO EXPORT CONTROLS ON CONVENTIONAL WEAPONS The concept of extra-territorial responsibility is increasingly recognized in the sphere of military assistance and conventional weapons transfer.139 The adoption by the UN General Assembly on 2 April 2013 of the Arms Trade Treaty (ATT) consolidated the requirements on states to assess the risks of serious human rights violations before licensing the export of “the broadest range of conventional weapons”.140 Under Article 7 of the ATT, when there is an overriding risk that an arms export would be used to commit or facilitate a serious violation of international human rights law, that export must not be authorized. Virtually all states already control the transfer and use of firearms and related ammunition and some states already use conventional arms control lists which include chemical irritants, projectiles and their launchers and armoured vehicles, extending the reach of the principles of the ATT to such law enforcement equipment. China’s Trade in Tools of Torture and Repression Amnesty International – Index: ASA 17/042/2014 29