Responsibility for Violations of Human Rights Via Capacity to Effect Rights
114. In addition, European States are at very real risk of liability for the human rights abuses
suffered by their nationals in detention in North East Syria. While States are most commonly
responsible for breaches of human rights which occur within their own territory,111 international
law recognises a variety of situations in which States may have broader responsibility for
human rights violations occurring elsewhere. Two such situations are where a State: (a)
exercises physical control or authority over persons extraterritorially (where they are, for
instance, in the State’s external custody or the custody of its agent, albeit on foreign soil);112
or (b) exercises effective control over an area outside the State’s territory (by, for instance,
an external military presence in a war zone overseas).113
115. Modern international lawyers argue that these various models of State responsibility are
all ways of giving effect to a more basic question, namely whether or not a State has, as a
matter of fact in any given situation, ‘power or control over the enjoyment of’ relevant human
rights.114 That way of looking at things – dubbed the functional approach115 –recognizes that
there will be circumstances where, by dint of the arrangements between countries in a
specific circumstance, a State will have the ability to affect compliance with (or violation of)
human rights outside its territory.
116. Thus, in the context of the fundamental human right to life, the UN Human Rights Committee
has clarified that every State:
‘has an obligation to respect and to ensure the rights … of all persons who are within
its territory and all persons subject to its jurisdiction, that is, all persons over whose
enjoyment of the right to life it exercises power or effective control. This includes
persons located outside any territory effectively controlled by the State, whose
right to life is nonetheless impacted by its military or other activities in a direct
and reasonably foreseeable manner.’116
117. As Judge Bonello of the European Court of Human Rights put it in his concurring opinion in
the case of Al-Skeini v United Kingdom:
‘States ensure the observance of human rights in five primordial ways: firstly, by
not violating … human rights; secondly, by having in place systems which prevent
breaches of human rights; thirdly, by investigating complaints of human rights
abuses; fourthly, by scourging those of their agents who infringe human rights; and
finally, by compensating the victims of breach of human rights. These constitute the
basic minimum functions assumed by every State …
Very simply put, a State has jurisdiction … whenever the observance or the breach
of any of these functions is within its authority and control…
43
RIGHTS & SECURITY INTERNATIONAL
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