‘Impact on rights’ as a form of extraterritorial jurisdiction: a new legal restriction on border controls through international cooperation

Abstract

International cooperation with partner states in regions of origin and transit of migrants and refugees has become one of the main priorities for the EU member states’ migration policies, including Spain. These practices take different forms: this contribution will look at the provision of funding, equipment, training, or assistance to other states to exert exit controls and intercept refugees. These practices have brought significant challenges for the existing protection mechanisms of human rights and refugee law. Among them, the identification of extraterritorial jurisdiction is highly problematic due to the lack of physical contact between the sponsoring state and the individuals concerned. The Human Rights Committee (HRC) in its General Comment 36 has provided a new basis for the establishment of the extraterritorial jurisdiction of the states that could be added to the current legal strategies to make sponsoring states responsible for cooperative deterrence practices. The aim of this contribution is analyze this this new basis of jurisdiction, under which the Covenant would be applicable to actions of states, whether within or outside their territories, which have a ‘direct and reasonably foreseeable impact on the right to life.’