A/HRC/28/74
be suitable as a mechanism of choice for assessing and/or promoting accountability with
regard to unilateral coercive measures that adversely affect the enjoyment of human rights.
Generally, the obligations assumed by State parties to almost all human rights treaties are
framed in a rather narrow manner; for instance, State parties to the International Covenant
on Civil and Political Rights undertake to ensure the enjoyment of all rights contained in
the Covenant for all individuals and peoples within their territories or subject to their
jurisdiction (art. 2). Articles 2 to 4 of the International Convention on the Elimination of All
Forms of Racial Discrimination limit the obligations of State parties in a similarly narrow
territorial and jurisdictional manner. The Convention on the Elimination of All Forms of
Discrimination against Women (art. 2) and the Convention on the Rights of the Child (art.
2) follow the same pattern. Article 2 of the International Covenant on Economic, Social and
Cultural Rights describes the obligations assumed by State parties in a more or less similar
fashion, with the exception that the obligations to ensure the enjoyment of human rights by
individuals within the territory of a State subject to its jurisdiction is modified by the
obligation of the relevant States parties to engage in “international assistance and
cooperation” towards the achievement of that goal. Whether or not a State is legally (as
opposed to morally) obliged to help to ensure the enjoyment of socioeconomic and cultural
rights in another State is, however, still a subject of controversy. 48
48.
The foregoing discussion tends to suggest that the territorial and jurisdictional
mandates conferred to treaty-based bodies within their respective treaties is framed quite
narrowly and does not seem to extend to victims of the adverse impact of unilateral
coercive measures who usually do not reside within the territory or are subject to the
jurisdiction of the State imposing the measures challenged. This begs the question as to
how such treaty-based bodies could procedurally entertain petitions of individuals or groups
who claim to have been victim of human rights violations when such persons are outside
the territory or jurisdiction of the State against which they are bringing the complaint. It
may be argued, however, that the obligations of State parties to ensure the enjoyment of
human rights by all individuals and peoples within their territory or those subject to their
jurisdiction could be read more flexibly in order to accommodate the ability of the relevant
treaty-based bodies to entertain claims lodged against State parties by persons outside the
territory of such States or normally regarded as being outside their jurisdiction. 49 In this
instance, the phrase “within its jurisdiction”, found in almost all of the treaties, may be
interpreted to include any person against whom the State has taken measures, including
unilateral measures, that may affect their human rights. Even such interpretive manoeuver
is, however, subject to significant controversy. 50
49.
It should be noted, however, that a treaty body may require State parties to include
in their periodic State reports information on how unilateral coercive measures that they
have taken may have violated the human rights of persons who are outside their territory or
jurisdiction, or on measures, if any, taken to assess or mitigate such adverse effects.
Moreover, past experience has shown that treaty bodies have an indirect way of exercising
their jurisdiction through the adoption of general comments. Even then, the issue of the
territorial and jurisdictional limits of treaty bodies may pose a challenge.
48
49
50
14
With regard to the debate on the ways and means of ensuring the enjoyment of the right to
development, see Obiora Chinedu Okafor, “A regional perspective: article 22 of the African Charter
on Human and Peoples’ Rights” in Realizing the Right to Development: Essays in Commemoration of
25 Years of the United Nations Declaration on the Right to Development (Geneva and New York,
OHCHR, 2013), p. 373.
See Hugh M. Kindred et al, International Law: Chiefly as Interpreted and Applied in Canada, 7th
edition (Toronto, Emond Montgomery, 2006), pp. 431 and 547.
Ibid.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents