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5.5 The Extraterritorial Scope of International Legal Obligations: Understanding Jurisdiction

A State must comply with its obligations under IHL beyond its own territory. As the purpose of IHL is to regulate the conduct of one or more States involved in an international (i.e., inter-State) armed conflict on the territory of another, there is no question that IHL applies to a State's extraterritorial conduct, though the extent of the geographic reach of IHL applicability is not unlimited. The same holds true for non-international (i.e., non-inter-State) armed conflict: the rules of IHL reflect 'elementary considerations of humanity' and are applicable under customary international law to any conflict, whether international or non-international. Parties to a conflict 'cannot be absolved of their IHL obligations when the conflict reaches beyond the territory of a single State'.

Under IHRL, the matter is more complex. For a State to have human rights duties towards persons (including persons who are not citizens of that State), and for persons to have human rights enforced by and against that State, that State must have jurisdiction (i.e., 'authority, responsibility or control') over those persons or the space they inhabit. States' jurisdiction under IHRL is different from:

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

III.2 States must ensure that the CAT is applied in their territory and territories under their jurisdiction

States Parties must take effective measures to prevent acts of torture and ill-treatment not only in their sovereign territory, but also in any territory under their jurisdiction. This means areas where the State Party exercises, 'directly or indirectly, in whole or in part', effective control in practice or as a matter of law, in accordance with international law. This includes prohibited acts committed 'not only on board a ship or aircraft registered by a State party, but also during military occupation or peacekeeping operations and in such places as embassies, military bases, detention facilities, or other areas over which a State exercises factual or effective control'.

The CAT must also be applied to protect 'any person, citizen or non-citizen without discrimination' that is subject to a State Party's control. The State's obligation to prevent torture and ill-treatment further applies to all persons who act, in practice or as a matter of law, in the name of, in conjunction with, or at the behest of the State Party. Each State Party should closely monitor its officials and those acting on its behalf, and should identify and report to the Committee any incidents of torture or ill-treatment.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

III.4 States' obligations under the CEDAW must be fulfilled both within and outside their territory

Women's rights in conflict prevention, conflict and post-conflict processes are affected by various actors, including the State where the conflict arises, neighbouring States involved in the conflict or States involved in unilateral cross-border military manoeuvres, States acting as members of international or intergovernmental organisations (for example, by contributing to international peacekeeping forces or as donors supporting peace processes), and coalitions. In all such cases, States are responsible for all their actions affecting human rights, regardless of whether the affected persons under their control are in their territory. States should:

    Apply the CEDAW in the exercise of territorial or extraterritorial jurisdiction, whether acting individually or as members of international or intergovernmental organisations or coalitions; Respect, protect and fulfil the CEDAW in situations of foreign occupation.


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