Introduction 

This chapter aims to explore the scope of international human rights law in general i.e. the extent or range of the application of it, rather than the scope of specific human rights i.e. the limits of what is protected by a specific right. This is a broad subject, but the chapter focuses on several important areas – reservations to treaties and the relevant component parts necessary to establish state responsibility in international human rights law – jurisdiction and attribution.

The first part of this chapter explores the impact reservations can have on the scope of individual states’ human rights obligations. It examines the permissibility of reservations to human rights treaties and considers the impact they can have on the object and purpose of the treaties. It also considers the role played by treaty bodies and international courts in determining the validity of reservations.

The second part of this chapter explores the concept of state responsibility and how it functions in the specific context of international human rights law. It looks at some components of state responsibility that have a direct impact on the scope of the state’s obligations, specifically jurisdiction and attribution. While jurisdiction is presumed to be exercised within the state’s territory, that is not the sum total of the state’s jurisdiction for the purposes of international human rights law. In this chapter, we will explore some of the main circumstances when a state’s jurisdiction extends beyond their territory and the impact it has on the scope of their human rights obligations.

This chapter will also explore the concept of attribution. States are the primary duty bearers of human rights obligations, but they are not the only actors with capacity to cause harm and abuse human rights. Many other actors including businesses, international organisations and private individuals also have this capacity. Yet these actors often lack the corresponding obligation to protect the right that the state has. As a result, gaps in responsibility can emerge in the protective framework of human rights. In this chapter we look at how some of these gaps are handled in international human rights law and consider how this affects the scope of human rights law for different states.

Reservations

The scope of a State’s legal obligations under an international human rights treaty may have to be considered in the light of any existing reservations or interpretative declarations. According to Article 2 of the Vienna Convention on the Law of Treaties, a reservation in international law is a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. As such, reservations exclude or modify the legal effect of provisions in a treaty.

Negotiating large multi-lateral treaties is often an extremely complicated and protracted process, where differences between the parties are likely to emerge during negotiations. Reservations can often give states leeway to agree to a treaty, while tweaking it to their specific desires. This could include interpretive reservations, whereby the state declares that it will interpret a specific article or term in the treaty in a certain way. Several states have, for example, controversially issued interpretive declarations to the CRPD indicating that they understand article 12 of the CRPD to permit substitute decision making, deprivation of legal capacity or guardianship. They can also include territorial reservations, which limit the application of the treaty to specific parts of its territory (see for example the discussion of the Loizidou v Turkey case below).

Reservations and International Human Rights Treaties

Issuing reservations to human rights treaties can be problematic. The Inter-American Court of Human Rights framed the issue very concisely in their Advisory Opinion on Reservations OC-2/82

The Court is effectively saying that human rights treaties are different and special because, rather than creating obligations directly between states, as normal treaties do, states assume obligations to individuals within their states through IHRL treaties. The obligations assumed are also different and special because of their character. IHRL treaties purport to recognise rights that are universal and accrue to people by virtue of their innate humanity. As such, they should exist independently of the State’s consent to be bound by them. Thus, when states accede to IHRL treaties, they are recognising and committing to something they were, in theory at least, already obliged to recognise. The unique status of these rules is also referred to elsewhere. As the Human Rights Committee noted in General Comment No. 24, “human rights norms are the legal expression of the essential rights that every person is entitled to as a human being”. The European Court of Human Rights, for example, has repeatedly described the ECHR as “a constitutional instrument of European public order” a kind of supra-national constitutional law. As such, IHRL treaties lay claim to a higher moral status with a different motivation behind compliance when compared to most other treaties.

Given the unique character of these obligations, it is open to question whether states should be allowed to issue reservations to them. As discussed in the chapter on Core Principles, human rights are supposed to be universal, indivisible and interdependent. States should not, in principle, be allowed to pick and choose which rights to uphold and reservations, by excluding or modifying the legal effect of the treaties, could allow them to do this. Equally, if human rights are interdependent, (see discussion on core principles) a reservation to one right could have knock on effects on other rights. The Human Rights Committee alludes to this interdependence in General Comment No. 24 stating “each of the many articles, and indeed their interplay, secures the objectives of the Covenant”.

As a matter of law, many human rights treaties permit states to issue reservations to them (see for example Article 75 of the American Convention and Article 57 of the European Convention on Human Rights). As a matter of practice, many states have issued reservations to international human rights treaties. A lengthy list of reservations to the European Convention on Human Rights, for example, has been recorded by the Council of Europe Treaty Office. While the International Covenant on Civil and Political Rights does not expressly mention the possibility of states issuing reservations, states have nonetheless issued over 100 reservations to the treaty. This begs the question of how one reconciles the ability of states to issue reservations to treaties with the nature and status of human rights obligations?

The Permissibility of Reservations

When determining the permissibility of reservations to a treaty, the starting point is Article 19(3) of the Vienna Convention on the Law of Treaties which states “a state may make a reservation provided it is not incompatible with the object and purpose of the treaty”. Thus, in order to determine the permissibility of a reservation, we must determine the object and purpose of the treaty. The ICJ in its Advisory Opinion on Reservations to the Genocide Convention noted the object and purpose of the Genocide Convention limited “the freedom of making reservations” and that “none of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d’être of the convention”. In 1994, the Human Rights Committee expressed concern that this was happening in respect of the ICCPR in a General Comment on Reservations. The Committee noted over 150 reservations to the treaty had been made at that point and they had the potential to “undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States parties”. The Committee therefore tried to lay down some limitations on reservations that could be made to the treaty. They noted that the

This object and purpose implied a series of limitations on reservations that could be made to the ICCPR. Reservations could not be issued that went against peremptory norms, customary law or non-derogable rights. Equally reservations that impacted the “framework for securing the rights” within the ICCPR were not permitted e.g. reservations to reporting obligations under the treaty are not permitted. Elsewhere the Committee has taken issue with general reservations to specific articles in treaties. In General Comment No. 34, for example, it observed that a general reservation to the rights set out in Article 19 of the ICCPR, which covers the right to freedom of expression and opinion, “would be incompatible with the object and purpose of the Covenant”. Other treaty bodies, such as the Committee on the Rights of the Child, have suggested that where states issue reservations predicated on their domestic law, for example claiming that respect for the CRC is limited by the State’s existing Constitution or legislation, such reservations would not be permitted. This conclusion was drawn from Article 27 of the VCLT, which states that a party to a treaty “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.

Determining the Validity of Reservations

Assuming that some reservations are valid and others are not, how can we tell the difference? In the first instance, it is open to states that are party to a treaty to lodge formal objections to reservations made by other states to register their opposition to them. In the context of human rights law, we have seen bodies charged with interpreting human rights treaties assuming powers to determine whether reservations made to the treaties by states are valid. An instructive example is the case of Belilos v Switzerland at the European Court of Human Rights. In that case the applicant had taken part in a demonstration for which permission had not been sought in advance and was issued with a fine by the municipal police board in Switzerland. She complained that an administrative authority, such as the Police Board, should not be empowered to determine the merits of a criminal charge and that she had not been tried by an independent and impartial tribunal within the meaning of Article 6 of the ECHR. Switzerland tried to claim that Article 6 was inapplicable as they had issued an interpretive reservation to the effect that the fair trial guarantee in Article 6 “is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities”. In other words, that once it was possible for administrative decisions to be appealed to a judicial authority, the terms of Article 6 would be satisfied. The court held that the reservation issued by Switzerland was a reservation of a general character and prohibited by Article 64 (as it was then) of the Convention. The court stated that a reservation of a general character was “a reservation couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope”, and that Switzerland’s reservation met this definition. As a result, the Court ruled that the reservation was invalid.

The ECtHR has also invalidated reservations that have attempted to limit the territorial scope of the Convention’s obligations. In Loizidou v Turkey the applicant was displaced from their property in Northern Cyrus as a result of Turkey’s invasion and occupation of Northern Cyprus in the 1970s. The property is located in the Turkish Republic of Northern Cyprus, a breakaway state that is not internationally recognised as a sovereign country. The applicant claimed that Turkey had violated their right to property as they could not return to their property because of the occupation. Turkey tried to have the case declared inadmissible on the grounds that the TRNC did not fall within its jurisdiction and it had issued reservations to the ECHR to the effect that they did not accept the competence of the ECtHR to examine “acts and events outside their metropolitan territory”. The Court however held that the restrictions that Turkey had tried to create through their reservations were invalid. The court noted that states “could not qualify their acceptance of the optional clauses thereby effectively excluding areas of their law and practice within their “jurisdiction” from supervision by the Convention institutions”.

The Human Rights Committee has similarly claimed a power to determine the validity of reservations. In Kennedy v Trinidad and Tobago, for example, the Committee had to consider a reservation which tried to exclude the Committee’s competence to receive and consider communications from prisoners sentenced to death. The Committee ruled that it “cannot accept a reservation which singles out a certain group of individuals for lesser procedural protection than that which is enjoyed by the rest of the population”. They considered this amounted to discrimination that was contrary to basic principles in the ICCPR and its protocol and as a result the reservation was incompatible with the object and purpose of the Optional Protocol to the ICCPR.

The Committee has also shown a willingness to read reservations to the ICCPR narrowly in its rulings. In the case of G.E. v Germany, for example, the complainant alleged that an employment law governing physicians discriminated against him on the grounds of his age because it prevented him from continuing to work after the age of 68. Germany submitted that the applicant has essentially claimed that his right to freely exercise or choose an occupation has been violated. This was not protected by the article in question and the complaint was “inadmissible due to the German reservation”. The Committee, by contrast, sought to construe the scope of this reservation narrowly, ruling that the communication “related to an alleged violation of the autonomous rights to equality and non-discrimination enshrined in article 26 of the Covenant”.

As a matter of practice therefore, several different bodies charged with interpreting human rights treaties have sought to minimise the effects of reservations to human rights treaties, by evaluating their validity and determining they were inconsistent with the object and purpose of the treaty or by construing their terms so narrowly that they are deprived of practical effect.

State Responsibility – A Simple Explanation of an Extremely Complex Issue

As states are the primary duty bearers of human rights obligations, human rights law is deeply concerned with establishing the responsibility of states for violations of human rights. The International Law Commission, which is a UN body charged with studying and recommending changes and codifications of international law, conducted a study on state responsibility which led to the publication of their Articles on the Responsibility of States for Internationally Wrongful Acts (2001). This summarises and codifies much of the law in this area. In Article 2 of the publication, the ILC states that:

In simple terms, this means that for state responsibility to arise, the obligation must be owed to the party by the state and be broken by the state.

The Importance of Jurisdiction

In determining whether the State owes obligations in IHRL, we are primarily concerned with whether the victim of the violation falls within the jurisdiction of State. This is because when we examine IHRL treaties, the rights they protect are contingent on jurisdiction. Article 1 of the European Convention on Human Rights, for example, states:

Article 1 of the American Convention on Human Rights states:

Thus, establishing that you fall within the jurisdiction of the state is pivotal to holding the state responsible for any rights violation. If a victim does not fall within the state’s jurisdiction, then no obligation arises on the part of the state towards them and therefore there is no obligations for the state to breach. This is one of the reasons why states take a variety of actions to keep people out of their jurisdiction, such as offshoring and pushback operations in the context of migration. Although these actions have not always been successful in avoiding the creation of jurisdictional links to the State, see for example the case of Nabhari v Australia.

The Importance of Attribution

Once we have determined that a person is within the jurisdiction of the state and has suffered a violation of their rights, we must then determine whether the conduct giving rise to the violation is attributable to the state i.e. that the state did the thing (or failed to do the thing) that caused the rights violation. This requirement is reflected in a variety of different treaty articles. Article 44 of the American Convention on Human Rights allows complaints of violations “by a State Party” to be brought to the Inter-American Commission. The optional protocol establishing a complaints mechanism to the Human Rights Committee for violations of the ICCPR offers an even clearer example of both requirements, jurisdiction and attribution, noting parties to the protocol recognise “the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party”.

States are not like living persons, their acts and omissions occur through people and institutions. When we try to establish whether conduct is attributable to the state, we need to examine the acts or omissions of their institutions, such as government departments, and to look at the acts or omissions of people acting on behalf of the state, which might include police, soldiers, immigration officers etc.

In evaluating the scope of IHRL, determining jurisdiction – the circumstances in which the obligations are owed – and attribution – whether the state has done (or failed to do) the conduct breaching the obligation – is pivotal. In the rest of this chapter, we will be examining the limits of jurisdiction and attribution in International Human Rights Law.

Jurisdiction vs Territory

The word jurisdiction is problematic because it describes several distinct things: the authority of a court or official organisation to make decisions and judgments, a system of law courts or the area over which a body exercises its power. In this section we are discussing state jurisdiction in international law, but what does that mean?

If you ask someone to identify a state, they will probably ask for a map and point to the lines surrounding the chunk of planet earth that belongs to that state. One of the defining characteristics of states, according the Montevideo Convention of 1933, is having a defined territory. As such, the jurisdiction of a state is closely related to the territory they control. As the ICJ noted in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, “the jurisdiction of States is primarily territorial”. The European Court of Human Rights echoed this sentiment in a human rights context in the case of Al-Skeini v UK observing “A State’s jurisdictional competence under Article 1 is primarily territorial” and “jurisdiction is presumed to be exercised normally throughout the State’s territory”. It should be noted that it is possible to rebut this presumption, for example, where a state loses control over part of its territory as a result of another state invading it. However in such circumstances courts, like the European Court of Human Rights, have been hesitant to disapply the State’s obligations entirely. In Catan and Others v Moldova and Russia, for example, the court held that even when a state is prevented from exercising its authority in part of its territory, it may still be obliged to uphold some positive obligations there (see also Sargsyan v Azerbaijan).

While jurisdiction is primarily territorial, it is not exclusively so and while jurisdiction is presumed within a state’s territory, that presumption can also be rebutted e.g. where another state controls part of the territory in question. As the Inter-American Court of Human Rights observed in Advisory Opinion 23/17–

Thus jurisdiction can be exercised outside national territory in certain circumstances, which we will discuss further below. First, it is worth examining this link between territory and jurisdiction in more detail.

One of the admissibility criteria before many international human rights bodies is whether the application to the human rights body is compatible ratione loci, or by reason of the location, with the treaty. This means that alleged violations of the treaty need to have taken place within the jurisdiction of the respondent State or in territory effectively controlled by it. The International Covenant on Civil and Political Rights has contributed to some confusion over the distinction between territory and jurisdiction. Article 2 of the ICCPR states

This seems to demand that two criteria are satisfied 1) that the person is within the territory of the state and 2) that they are within the jurisdiction of the state. One might question what circumstances could arise where you are within the territory, but not the jurisdiction of the state as they usually go hand in hand. There are, however, circumstances where you could be within the territory of a state, but not their jurisdiction. Embassies and consulates are one example. These institutions belong to one state, but are situated on the territory of another. Because of a range of international treaties, such as the Vienna Convention on Consular Relations, and customary law, embassies and consulates are inviolable, which means that the state controlling the territory on which they are situated cannot enter without the permission of the state that owns the embassy. This means that embassies fall within the de facto jurisdiction of the state responsible for them.

While the ICCPR implied both presence on the State’s territory and within its jurisdiction are required, the Human Rights Committee has not interpreted the ICCPR as requiring both conditions to be satisfied. As the Committee observed in General Comment No. 31 (2004) regarding the obligations of State parties, States “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”. Thus, the Committee appears to have read down the requirement to be within its territory, instead exclusively questioning whether the person falls within the jurisdiction of the State.

This is an extremely complex area of law and the exact limits of extra-territorial jurisdiction have changed significantly over time. At the European Court of Human Rights alone, a variety of different approaches to extra-territorial jurisdiction are evident in its case law, from limiting its application to airstrikes (Bankovic and Ors v Belgium and Ors) to extending jurisdiction to airstrikes (Pad v Turkey) and from stopping the Convention from applying during “active hostilities” (Georgia v Russia (II) ) to allowing it to apply to such activities (Netherlands and Ukraine v Russia). This has meant that the exact scope of the obligations applicable to signatories of the ECHR when they act outside their territory has become quite unclear. For the sake of simplicity, we will focus here on two of the most common forms of extra-territorial jurisdiction in international human rights law. These can go by different names, the first is personal jurisdiction (sometimes called state agent authority) and the second is spatial jurisdiction (sometimes called extra-territorial control over an area).

Personal Jurisdiction

Personal jurisdiction arises where the state agents of a contracting state to a human rights treaty exercise authority and control over an individual outside their state’s normal territory. This jurisdiction is predicated on factual control over individuals by agents of the state. As the Inter-American Commission on Human Rights observed in Alejandre v Cuba –

This type of personal jurisdiction is reflected across different human rights jurisdictions and has a long history. We can see a reference to personal jurisdiction dating as far back as 1965 in the case of X v Federal Republic of Germany before the European Commission on Human Rights. The classic formulation of this type of jurisdiction was presented by the European Commission on Human Rights in Cyprus v Turkey in 1975

It has since been endorsed by the European Court of Human Rights and applied to a range of circumstances from abductions by a contracting State’s forces on the territory of other States in Ocalan v Turkey, to interceptions of vessels on the high seas in Medvedyev v France.

The UN Human Rights Committee has also endorsed this approach to jurisdiction, for example, in General Comment No. 35 on the right to liberty and security, it observed

Spatial Jurisdiction

The other main type of extra-territorial jurisdiction is spatial jurisdiction and arises from extra-territorial control over an area e.g. where a state’s military forces occupy the territory of another state during armed conflict. We can see references to this type of jurisdiction at different human rights bodies. The UN Human Rights Committee alluded to this form of jurisdiction in General Comment No. 36 observing

The European Court of Human Rights acknowledged this type of jurisdiction in the case of Loizidou v Turkey

Lubell notes that the European Court of Human Rights presented a significant difference between personal jurisdiction and spatial jurisdiction in the case of Al-Skeini v UK. Personal jurisdiction creates obligations only with regard to the rights ‘that are relevant to the situation of that individual’. While spatial jurisdiction requires the state to “secure, within the area under its control, the entire range of substantive rights set out in the Convention”. Given the scale of the obligations in the ECHR, which could involve obligations to establish courts, police etc. this creates a potentially extremely onerous obligation on the state.

Rationalising Extra-Territorial Jurisdiction

Different human rights bodies have sought to rationalise the idea of extra-territorial jurisdiction in different ways. At the European Commission on Human Rights, their approach to personal jurisdiction was justified by reference to the language used in the Convention and the object and purpose of the treaty

The Inter-American Commission justified it by reference to the nature of human rights obligations. In Alejandre v Cuba again the Commission notes

There is a clear logic here in the sense that if we assume that rights are universal and inherent in all humans, the state should not be permitted to breach them just because they are acting outside their territory. As the Human Rights Committee framed it in Lopez Burgos v Uruguay

At the same time, the extra-territorial application of human rights law has been controversial among states, driving calls in the UK, for example, to withdraw from the ECHR. The acts giving rise to extra-territorial rights violations often occur in the context of armed conflicts and have pushed human rights law into areas which are traditionally regulated by the Law of Armed Conflict/International Humanitarian Law. This led different parties to claim that as the law of armed conflict was the more specialised body of law, the lex specialis, it should take precedence over human rights law in the context of armed conflicts, as the UK government claimed in the case of Hassan v UK. The question of how these two bodies of law interact has been revisited again and again in international human rights law and has a clear impact on the scope of its protections.

It has broadly settled into a position whereby both bodies of law are applied – co-application. The ICJ has endorsed this approach in several cases, for example, in the Armed Activities case it noted that “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration” when answering the questions presented to the court. At the Inter-American Court of Human Rights in the case of Cruz Sanchez v Peru, the court used international humanitarian law to interpret the right to life clause in the ACHR

While the European Court of Human Rights modified the application of the right to liberty and security in the case of Hassan v UK so that detention had to comply with the rules of international humanitarian law. The European Court summarised the position reasonably clearly in the judgment of Ukraine and the Netherlands v Russia

Despite coalescing around this consensus, as Akande and Jackson note, outstanding issues remain, such as whether the European Convention, which expressly limits the use of force to specified situations can be interpreted in light of IHL? As such, this area of law is still under development and many issues like this remain unresolved.

Attribution

When we look at various human rights treaties, we can observe a clear pattern. Under Article 48 of the International Covenant of Civil and Political Rights it states that “The present Covenant is open for signature by any State Member of the United Nations”. Under Article 59 of the European Convention it states “This Convention shall be open to the signature of the members of the Council of Europe” and membership of the Council of Europe per Article 4 is open to “Any European State” subject to certain conditions. Article 74 of the American Convention on Human Rights contains a very similar clause to the ECHR noting “This Convention shall be open for signature and ratification by or adherence of any member state of the Organization of American States” and similarly membership is limited to “independent
 American
 States” by the Charter of the OAS. Only states are permitted to accede to these treaties. Yet, despite only states being capable of acceding to these treaties, a variety of other entities have the capacity to violate rights. Companies may discriminate against their employees. International organisations, like the UN, might deploy soldiers on a peacekeeping mission that violate the right to life of individuals. Ordinary people can unlawfully and arbitrarily detain others. Each of these examples could engage a person’s human rights, the prohibition on discrimination, the right to life or the right to liberty and security, but none of these acts are attributable (at least not directly) to the state.

As the state is the duty bearer in international human rights law, it must guarantee the rights in the international human rights law treaty to people within its jurisdiction. The other entities, the company, the international organisation, the individual, at least in principle, do not owe the obligations in international law, so they cannot be responsible for breaching them, only the state can. As the Human Rights Committee has noted in respect of the ICCPR “obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law”. Does that mean there can be no recourse for the individuals that are victims of the company, the international organisation or the individual? The answer is no because the acts or omissions of these entities can be attributed to states in different ways which we will explore in the forthcoming sections of this chapter.

International Organisations

International organisations, like the United Nations and the European Union, have grown in prominence within international relations over the past 70 years. The European Union, which has immense power on the global stage, did not even exist when the European Convention on Human Rights entered into force in 1950. While the United Nations is the source from which a range of human rights treaties have emerged [see UN Chapter], the UN is not itself party to those treaties. In a sense, the international legal system is playing catch up with these developments. As we noted, these organisations have significant capacity to breach human rights protections, but limited capacity to be held responsible.

There are different ways to resolve the problem. The first, most straightforward approach, would be to allow international organisations to accede to the IHRL treaties like states. Entities like the EU have international legal personality distinct from their member states. They are capable of holding rights and duties under international law independently of their member states and have the capacity to sign and ratify treaties in their own right, so such an approach is feasible. The EU is a very interesting example occupying an unusual space among international organisations. Unlike the United Nations, which is not party to human rights treaties it has created, the EU is a party to its own international human rights law treaty, the EU Charter of Fundamental Rights alongside its member states. We noted previously that many human rights treaties only allow states to become parties to them, but that is not the case for all of them. Article 44 of the CRPD allows regional integration organisations to accede to the Convention. These are organisations to which its member States have transferred competence in respect of matters governed by the CRPD. Because the EU member states have transferred competence to the EU in relation to matters relating to disability, the European Union has, uniquely among international organisations, become a party to the CRPD. The EU has taken its role in this regard seriously, for example, by creating an inter-service group to coordinate implementation between EU institutions and member states and adopting an EU Framework for the UN Convention on the Rights of Persons with Disabilities. The EU has also played an active role in the normative development of CRPD rights by shaping how accessibility, non-discrimination, and legal capacity are interpreted within a regional legal framework. While IOs assuming legal obligations under international human rights law like this is welcome, it is not without its own difficulties. As Waddington notes with respect to the EU’s accession to the CRPD, it can result in an unclear delineation of competences between the EU and its member states, potentially weakening accountability and complicating enforcement.

It is also worth noting that treaties could be adapted specifically for the purposes of allowing international organisations to accede to them. The ECHR was specifically amended by Protocol 14 so that the European Union could accede to the ECHR. This process originally stalled following a decision raising objections to the proposed accession by the Court of Justice of the European Union. However, progress has been made more recently toward this goal. A new Draft Accession Agreement was agreed in 2023 paving the way for EU accession to the ECHR, which would allow individuals to raise complaints about violations of their rights perpetrated by EU institutions. The new proposals include a co-respondent procedure allowing both the EU and its member states to be brought jointly before the ECtHR, facilitating shared responsibility.

The second option is to hold states indirectly responsible for the actions of international organisations. As international organisations have separate legal personality to their member states, states won’t typically be held responsible for their actions, but this distinction is not always clear. The UN, for example, has established different military operations across the world to uphold peace and security. Through this the UN Security Council invites members of the UN to contribute troops to the operations on an ad hoc basis. This can create a grey area where the responsibility for the actions of the deployed troops becomes uncertain, are their actions attributable to the UN or to the member states?

The case of Behrami v France and Others, for example, concerned a troop deployment under a UN mandate in Kosovo. In that case, some children discovered unexploded cluster bomb units that had been dropped during a bombing campaign in 1999. One of these bombs exploded, killing one child and seriously injuring another. In the case before the European Court of Human Rights, their family claimed that France was responsible for violating the children’s right to life because French troops deployed for the mission had failed to defuse the bomb or clearly mark the area where they knew unexploded bombs were located. France claimed that because the French troops were operating under a UN mandate, the conduct was not attributable to France, but to the UN. The ECtHR concluded that ‘the [UN] Security Council retained ultimate authority and control so that operational command only was delegated’. Therefore, the conduct complained of was not attributable to France and was instead attributable to the United Nations, declaring the application inadmissible. In doing so, the court drew heavy criticism from academics like Larsen, who argued that court’s approach was inconsistent with the International Law Commission’s Articles on the Responsibility of International Organisations and international practice. This was because responsibility is typically linked to operational command over the mission in question, rather than who has authorised the mission or had “ultimate responsibility” and in this case, France had operational command of the troops.

The European Court of Human Rights took a different approach in the case of Al-Jedda v United Kingdom. In that case, the UK had detained the applicant in 2004 in Iraq during a military operation. The applicant alleged that his internment in Iraq violated his right to liberty and security under Article 5 of the ECHR. The UK argued the detention was attributable to UN because the troops were present under a UN mandated mission, the United Nations Assistance Mission for Iraq (UNAMI). The ECtHR distinguished this case from the case of Behrami on the grounds that ‘the multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN’. The ECtHR observed

Thus, the Court determined that the conduct in detaining Al-Jedda was attributable to the UK. What is interesting about this quote is that the ECtHR clearly entertains the possibility that conduct violating rights could be attributable to both the UN and the contracting state to the Convention at the same time. As a result of this judgment, it is unclear whether States can shield themselves from liability under human rights law by claiming conduct is attributable to another international organisation like the UN.

Other States

It is also possible for one state to be responsible for the activities of another State in certain circumstances. In El-Masri v Macedonia, for example, the applicant travelled to Macedonia for a holiday and was arrested by Macedonian authorities in 2003, believing he was on a USA terrorist watch list. He was taken to a hotel where he was interrogated for several days. He was then taken to Skopje airport and handed over to USA authorities who subjected him to extraordinary rendition. He was shackled, hooded, put on a plane and flown to different locations around the world where US authorities subjected him to torture, inhuman and degrading treatment. Months later, the US authorities realised El-Masri was not a terrorist and dropped him off near the border with Albania. The applicant complained that Macedonia had facilitated his ill treatment at the hands of the US authorities and should be held responsible under the Convention for the rights violations he was subjected to. The ECtHR held Macedonia responsible for multiple violations that arose from their initial actions of allowing him to be transferred to the jurisdiction of another State. They found, for example, that Macedonia had violated the prohibition on torture inhuman and degrading treatment because the applicant was subjected to such treatment by the USA and

The ECtHR has reached similar findings in subsequent cases. In Al-Hawsawi v Lithuania, the applicant complained that he had been detained in a secret detention facility run by the USA in Lithuania where he was subjected to torture inhuman and degrading treatment. The ECtHR found that Lithuania had hosted this detention facility and had known of the nature and purposes of the CIA’s activities on its territory. It had cooperated in the extraordinary rendition programme aware that it was exposing people detained through it to a serious risk of treatment contrary to the Convention. The Court determined that

There have also been times when states are alleged to be responsible for human rights violations committed by other states that have been rejected. In Naser and Others v Denmark for example, applicants to the ECtHR claimed that they had been subject to torture, inhuman and degrading treatment while detained following a military operation involving Danish soldiers in Iraq in 2004. The applicants claimed they fell under Danish control because it was the Danish soldiers’ role to educate and train the Iraqi forces carrying out the arrest and detention operations. The ECtHR ruled that the legal basis for the presence of Danish forces in Iraq did not cover their taking part in detaining Iraqi prisoners or surrendering them to the Iraqi forces. The ECtHR focused on operational command, determining that the Iraqi forces had full control of the operation and that any rights violations were therefore attributable to them and not the Danish forces. The focus on operational control rather than ultimate authority and control is in sharp contrast to the court’s previous ruling in Behrami v France discussed above.

Other Non-State Actors 

As Mackenzie-Gray Scott notes, non-state actors have traditionally been constrained from being duty bearers in international law because they have been viewed as objects of international law, rather than subjects of it. There have, however, been a range of noteworthy developments in this area. Some human rights instruments have imposed direct obligations on non-state actors, such as Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which imposes obligations on non-state armed groups

A new area of study has also emerged in the past decades examining the responsibilities of businesses under human rights law. The UN established a special representative on the issue of human rights and transnational corporations and other business enterprises in 2005, which ultimately led the UN Human Rights Council to endorse the Guiding Principles on Business and Human Rights (UNGPs) in resolution 17/4 of 16 June 2011. This soft law instrument aimed to clarify the scope of obligations that businesses had to respect human rights and delineated the boundaries between the state’s responsibilities and those of businesses. Despite it’s lack of binding force, Lane argues that the UNGPs have had “a tremendous impact” with states and businesses adopting a range of measures to implement the provisions, including national action plans and human rights impact assessments. Efforts have been made since the UNGPs to create an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. These have yet to reach fruition but represent a further step in the process of trying to subject non-state actors to direct human rights obligations.

Acting on Instructions or Under Control of the State

According to Article 8 of the articles on state responsibility, which codified rules on state responsibility in general international law, states can be held responsible for acts or omissions of non-state actors where they act on the instructions or under the direction or control of a state when carrying out the conduct. We can see this type of responsibility arising in international human rights law in cases like Catan and Others v Moldova and Russia, which concerned human rights violations perpetrated by the ‘Moldovan Republic of Transdniestria’ (MRT) a breakaway state on the border between Ukraine and Moldova. The MRT is not recognised as an independent state by the international community and Russian troops are stationed in the territory. In Catan, the applicants complained that the education policies imposed by the MRT authorities discriminated against their children in breach of the ECHR. When the Court considered the responsibility of the MRT, a non-state actor, it held that contracting states could be held responsible for subordinate local administrations. The court stated that it was

Exercising Elements of Governmental Authority

According to Article 5 of the articles on state responsibility the conduct of organs that are empowered by the law of a State to exercise elements of the governmental authority can be considered acts of that state. The Inter-American Court of Human Rights expressly endorsed the approach of the ILC toward this type of liability in Ximenes-Lopes v Brazil observing that

We can also see this type of responsibility arising, for example, at the Human Rights Committee in Cabal and Pasini v Australia. In that case the complainant argued that he had been discriminated against by a privatised prison. The Committee had to determine whether the State party’s obligations under the Covenant apply to privately-run detention facilities. The Committee observed that a state party “is not relieved of its obligations under the Covenant when some of its functions are delegated to other autonomous organs”, and that

Indirect Responsibility and Positive Obligations

Perhaps the most common form of responsibility we see for non-state actors in human rights law arises through indirect responsibility emanating from the state’s positive obligations and failures to properly regulate the activities of non-state actors. As discussed previously in the chapter on Types of Obligations, states have different types of obligations under human rights law including obligations to protect and fulfil. The obligation to protect requires states to protect individuals against abuses by third parties such as non-state actors. The obligation to fulfil requires states to adopt appropriate legislative, administrative, budgetary frameworks to ensure a right. The combination of these types of obligations can require the state to regulate non-state actors. Lane offers a detailed study identifying instances where different treaty bodies have imposed obligations on states to regulate non-state actors. The Committee on Economic Social and Cultural Rights, for example, has observed in General Comment No. 12 “violations of the right to food can occur through the direct action of States or other entities insufficiently regulated by States”. The Human Rights Committee in General Comment No. 18 asked states to provide information to them of “legal provisions and administrative measures directed at diminishing or eliminating” discrimination caused by “public authorities, by the community, or by private persons or bodies”.

The regional bodies have also imposed this type of indirect responsibility on states in different cases. The Inter-American Court, for example, in the case of Velasquez Rodriguez v Honduras held that

The European Court of Human Rights has also held states responsible for a lack of due diligence in regulating the actions of non-state actors in a range of cases. In Cuenca Zarzoso v Spain, for example, the applicant complained that the state was not properly regulating the level of noise created by commercial establishments in his neighbourhood and the disturbance from the noise violated his right to private and family life. While the state had adopted some measures to limit noise, their actions were deemed insufficient by the court. It held that regulations created by the municipal authorities were not properly enforced and “the applicant suffered a serious infringement of his right to respect for his home as a result of the authorities’ failure to take action to deal with the night-time disturbances”.

Further Reading

Milanovic M, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23(1) European Journal of International Law

Wallace S, ‘Military Operations and Withdrawal From the European Convention on Human Rights’ (2024) 5 European Convention on Human Rights Law Review

Suggested Citation – Stuart Wallace, ‘The Scope of Obligations in International Human Rights Law’ in Stuart Wallace and Clare James (eds), Open Access International Human Rights Law (University of Leeds, 2026)