EXTRATERRITORIAL JURISDICTION IN INTERNATIONAL HUMAN RIGHTS LAW

Abstract

A country exercises its jurisdiction within its boundary, where it enjoys all the power to try and prosecute any case. There are certain situations where the citizens of a country commit any crime or alleged act in another country. In such a situation, the country lacks jurisdiction, and the act is extraterritorial. It becomes difficult to extradite the culprit to the country if the countries don’t have an extradition treaty. During war or conflict, it is most common to see human rights violations by invading the country. Certain international organs and treaties have been enacted to protect human rights. In this article, the focus will be on understanding the meaning of extraterritorial, what jurisdiction is, and instances of human rights violations in international law with the help of case laws.

Keywords

Jurisdiction, Human Rights, Extraterritorial, ICCPR, ECtHR

Introduction

Meaning of Extra-territorial Jurisdiction-

To start, let’s clarify the definition of jurisdiction. In simple terms, jurisdiction refers to –

The state’s power to enact and enforce laws, settle disputes, and administer penalties.

“In international human rights law, extraterritorial jurisdiction signifies a state’s legal enforcement of human rights treaties outside its territorial boundaries. It entails the obligation of the state to uphold, safeguard, and realize human rights even in instances where actions or neglect happen beyond its borders”[1]. The territory of a country includes its land, territorial sea, inland waters, national aircraft, and vessels. There are three main types of state jurisdiction- Legislative, executive, and judicial jurisdiction.

The distinction between Territorial Jurisdiction and Extra-territorial Jurisdiction –

Territorial jurisdiction is the primary and essential category of jurisdiction linked to a state’s sovereignty.

Extra-territorial jurisdiction is a rare occasion, used solely when a legal or practical link exists to warrant extending jurisdiction outside national boundaries.

Extent of Extraterritorial Jurisdiction–

The idea of extraterritorial jurisdiction has developed considerably over time. Originally based on the territoriality principle of sovereignty, it has gradually broadened to encompass the “realities of global interconnectedness, military interventions, and transnational human rights effects”. Here is a concise summary of the development of extraterritorial jurisdiction –

Foundational Basis: Territoriality and Sovereignty

Historical Approach-

For an extended period, territorial sovereignty served as the basis of international law. This method restricted the state’s authority to its physical territory, and its human rights responsibilities were limited solely to its domestic sphere.

Post World War II Developments-

“The creation of the United Nations in 1945 and later approval of the Universal Declaration of Human Rights in 1948[2] marked the beginning of a new period of global human rights standards”. This was just the start nations needed especially after the atrocities of world war. However, these rights were primary and lacked explicit provisions for extraterritorial application.

Emergence of Human Rights Treaties [1948-1966]

ICCPR and ICESCR- {1966}

“The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR)” were some of the initial Human Rights Treaties that set out obligations for states to uphold and guarantee rights within their territory.

The expression ‘within their jurisdiction’ brought forth the concept of jurisdictional scope, yet its understanding remained limited and mainly focused on territorial boundaries. It still lacked the question of extra-territorial jurisdiction. It resulted in problems for any crime committed outside the country or in a foreign jurisdiction.

Key Provision under ICCPR relating to Extra-territorial Human Rights–

‘Article 2(1)- Obligation to Respect and Ensure Rights

It will be the state’s duty to ensure that the human rights of any person are respected even in military action or detention centres.

Article 6: Right to Life- Every Human being has the inherent right to life irrespective of jurisdiction.

Article 7: Prohibition of Torture and Cruel Treatment- No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment.

Article 9: Liberty and Security of the Person – Everyone has the right to liberty and security of person; arbitrary arrest or detention is prohibited.

European Convention on Human Rights (ECHR)

The ECHR formed in 1950 by the Council of Europe, specifies fundamental rights and freedoms designed to protect individuals in its member countries. Although the convention mainly regulates within the country’s borders, it also includes clauses about extraterritorial jurisdiction.

American Convention on Human Rights (ACHR)

The ACHR was established in 1969, also known as the Pact of San Jose. This convention serves as the National Human Treaty for the people of the United States. These treaties often impose ‘obligations on states to ensure human rights protection’, not just within their borders but also in situations where they exercise control or authority extraterritorial.

Instances of Application of such Conventions

Effective control– When a ‘state exercises effective control over a foreign territory’ or population, such as in military occupation or administration of foreign areas. In the past, during colonial times, the colonial rulers exercised effective control over the subjects.

Agent Conduct Abroad: When state agents (e.g. military personnel, diplomats, or contractors) act outside the state’s territory, they shall be immune and protected from any extraterritorial liability, provided they act in their official capacity. There are also direct and foreseeable impacts of state actions abroad.

Expansion of Human Rights through International Jurisprudence (1970s- 1980s)

The UN Human Rights Committee finally recognized that a state’s actions affecting individuals outside its territory could trigger extraterritorial obligations under the ICCPR, thus expanding the ‘ambit of a state’s jurisdiction’ over the actions of its citizens. This has greatly helped the countries to take action against the person who has committed any crime abroad under their laws.

“Lopez Burgos v. Uruguay” (1981)[3] and “Celiberti de Casariego v. Uruguay” (1981)[4] –

These two cases established that ‘human rights obligations extend to situations where a state exercises control over individuals’, even outside its borders.

UN General Assembly Resolutions-

The UN passed important resolutions to emphasize state obligations for human rights infringement with ‘cross-border implications’, especially in cases of apartheid and colonialism, prevalent in Africa.

Establishment of the “European Court of Human Rights (ECtHR)”- Pioneering Interpretation [1990s-2000s]-

In the 2000s the European Court of Human Rights delivered some landmark judgments on extraterritorial jurisdiction in International Human Rights that further shaped legal precedence over state jurisdiction.

Banković v. Belgium (2001)[5]

In this case, the ECtHR took a restrictive approach, holding that “jurisdiction under the European Convention on Human Rights (ECHR) was primarily territorial”. Effective control over a foreign territory or persons was necessary for extraterritorial application.

“Al-Skeini v. United Kingdom” (2011)[6]

This case marked a significant shift in recognizing extraterritorial jurisdiction where a “state exercises public powers or effective control over an area or individuals”. The court clarified that jurisdiction is not limited to territorial boundaries but includes authority or control in specific contexts.

Hirsi Jamaa v. Italy (2012)[7] –

This case expanded extraterritorial application by holding that states could have jurisdiction over individuals intercepted on the high seas.

State Responsibility for Extraterritorial Acts-

Positive Obligations-

This necessitates that states take active measures to safeguard and advance human rights outside their territory. For instance, a state might need to avert human rights abuses or offer support and safeguard people in foreign nations. Example- Defending the rights of citizens overseas or tackling international offenses such as human trafficking.

Negative Obligations-

These necessities that states avoid infringing upon human rights, include stopping breaches perpetrated by their representatives or organizations internationally. Governments should refrain from causing damage through their actions beyond borders, including military attacks and unlawful killings.

Attribution-

Countries may be deemed accountable for actions outside their borders if their personnel or armed forces are implicated.

Shared Responsibility-

Several states can bear responsibility if they cooperate in actions that lead to human rights abuses.

Transnational Corporate Responsibility (2000 Onwards)

Marked a shift toward the role and responsibility of Non-State Actors–

Till now it was only the state’s accountability for the actions of its citizens. However, changing times and the global reach of multinational corporations have brought attention to the impact of transnational business activities on human rights.

Efforts such as the “UN Guiding Principles on Business and Human Rights” (2011) emphasized the responsibilities of countries to oversee corporate behavior overseas to avert human rights violations.

Kiobel v. Royal Dutch Petroleum Co. (2013)[8]

The U.S. Supreme Court limited the extraterritorial reach of the Alien Tort Statute (ATS) but permitted for cases with strong ties to the U.S.

Modern Frameworks and Expanded Interpretation-

UN Treaty Bodies–

The UN has established treaty monitoring bodies such as the “Committee on Economic, Social, and Cultural Rights”, emphasizing the state’s extraterritorial obligations, especially in transboundary environmental and economic impacts.

General Comments–

“The Human Rights Committee’s General Comment No. 31 (2004) clarified that states must ensure human rights wherever they exercise effective control, including military operations abroad”[9].

International Court of Justice–

In cases like the “Advisory Opinion on the Wall” (2004)[10], the ICJ recognized that human rights treaties like the ICCPR apply extraterritorially during military occupations.

Challenges-

Sovereignty Concerns-

Balancing the state’s obligations under human rights law with the principle of territorial sovereignty can be complex and challenging.

Ineffective accountability of states-

‘Holding states accountable for extraterritorial violations’ is difficult, especially in war-torn or conflict zones or regions that lack clear legal frameworks.

Resources Constraint-

Challenges in implementing protective measures abroad due to logistics and financial considerations.

Examples-

State accountability for human rights violations during military operations abroad. The US is often accused of violating human rights under the veil of military operations in the Middle East.
Protection of migrant workers’ rights through extraterritorial legal mechanisms.
Regulation of multinational corporations headquartered in one state but operating in others.

Emerging Challenges and Issues

Technology and Surveillance-

The rapid expansion of technology and the rise in digital surveillance and cyber operations raises pertinent questions about extraterritorial jurisdiction, as states’ actions increasingly affect individuals beyond their borders. Russia and North Korea are among the countries that indulge in cyber-attacks globally. China is said to have the most extensive surveillance networks, especially over Hong Kong and Taiwan, and takes strict action against any anti-Chinese sentiments.

Climate Change and Ecology Equity-

There is increasing acknowledgment that countries bear extraterritorial obligations to tackle human rights effects related to climate change. However, multiple challenges restrict the state to take immediate action.

Universal Jurisdiction-

Due to technological progress like the Internet, international trade, and partnerships, the planet has become closer and more interconnected. Although not precisely extraterritorial jurisdiction, “the idea of universal jurisdiction, especially concerning genocide, war crimes, and crimes against humanity, demonstrate the global advancement of accountability systems”[11].

Landmark Cases (International Cases)

‘Banković v. Belgium’-

Court- European Court of Human Rights

Issue- Bombing of a radio station in Belgrade by NATO forces during the Kosovo conflict.

Court Decision–

The court ruled that the “convention doesn’t apply extraterritorially unless a state exercises effective control over the area or person affected. The court reasoned that NATO force conduct in carrying out airstrikes did not constitute jurisdiction under Article 1 of the ECHR because the operation was not within the territory of a signatory state.

Jurisprudence established-

The case established a narrower interpretation of extraterritorial jurisdiction, emphasizing territorial control as a crucial factor”[12].

Al-Skeini v. United Kingdom (2011)

Court- European Court of Human Rights-

Issue- “Murder of six Iraqi civilians amid the British military invasion of Iraq

Ruling-

The court determined that the UK had extraterritorial jurisdiction due to its effective control over the territory. The Court broadened the definition of jurisdiction, asserting that states bear responsibilities under the ECHR in contexts where they wield public powers or authority over individuals.

Impact-

This case broadened the scope of extraterritorial jurisdiction to include situations where state agents exert control or authority over individuals, even outside their territory”[13].

“Lopez Burgos v. Uruguay (1981)

Court– United Nations Human Rights Committee

Issue- Kidnapping and detention of a Uruguayan national in Argentina by Uruguayan authorities.

Committee’s Decision-

The Committee held that Uruguay’s actions violated the ICCPR, as the state exercised authority over the victim despite being outside its territory. This case affirmed that a state’s human rights obligations under the ICCPR can extend to extraterritorial actions”[14].

Issa v. Turkey (2004)-

Court- European Court of Human Rights –

Issue- “Deaths of Iraqi shepherds allegedly caused by Turkish military operations in northern Iraq.

Ratio– The ECtHR ruled that Turkey could be held accountable under the ECHR if it exercised effective control over the area or individuals. However, the Court found insufficient evidence of such degree in this case. This case highlighted the need for clear evidence of control for a state to bear extraterritorial responsibility”[15].

Hirsi Jamaa v. Italy, 2012

Court- ‘The European Court of Human Rights

Issue- Interception and return of migrants by Italian authorities in international waters.

Judgment-

The ECtHR found that Italy had jurisdiction over the migrants as they were under the control of Italian officials. The Court determined Italy breached the ECHR by placing the migrants at the risk of inhumane treatment in Libya and obstructing their access to the asylum process. The case Reinforced the principle that jurisdiction can be established through control over individuals, even on the high seas’[16].

Al-Jedda v. United Kingdom (2011)-

Court- “European Court of Human Rights

Issue- Detention of a dual Iraqi-British national by UK forces in Iraq.

Ruling-

The ECtHR concluded that the UK had jurisdiction since it exerted control over the detainee. The Court held that the UK breached the detainee’s rights under the ECHR by not providing procedural protections against arbitrary detention.

Impact: This case established that jurisdiction goes beyond territorial control and includes authority over individuals”[17].

Kiobel v. Royal Dutch Petroleum Co. (2013)

Court- The United States Supreme Court

Issue– “Claims of human rights violations in Nigeria by a multinational company under the Alien Tort Statute (ATS).

Ruling– The Court decided that the ATS typically does not apply outside the United States unless the claims have a significant connection to the country.

Effect: The court limited the application of the ATS for claims outside the U.S. while still allowing for cases that have significant ties to the U.S”[18].

INDIAN CASES

“Mohammad Salimullah & Anr. v. Union of India & Ors.”[19] (Rohingya Deportation Case)-

Issue- “Deportation of Rohingya refugees from India to Myanmar and the enforcement of India’s constitutional and international responsibilities.

Court decision-

The Supreme Court recognized India’s duties under international law to safeguard refugees but stressed that international treaties need to be included in domestic legislation to be applicable. The Court permitted the government to move forward with deportation while emphasizing the importance of following due process.

Impact– While the case does not explicitly focus on extraterritorial jurisdiction, it emphasizes the conflict between territorial sovereignty and India’s commitments to international human rights”[20].

“National Human Rights Commission v. State of Arunachal Pradesh (Chakma Refugee Case)”[21] (1996)-

Issue- “Discrimination and intimidation of Chakma refugees in Arunachal Pradesh are raising worries regarding India’s commitments under international law. No citizenship is granted to Chakma refugees under the Citizenship Act.

Decision-

The Supreme Court instructed the state to guarantee the safeguarding of the refugees’ rights, citing India’s duty to comply with global standards on refugee protection. While not explicitly extraterritorial, the case shows how Indian courts have referenced international compulsions to protect human rights”[22].

Enrica Lexie Case (Italian Marines Case) (2020) –

Issue– “Two Italian Mariners on the Enrica Lexie, shot Indian Fishermen off the Kerala coast in international waters, prompting a significant question of jurisdiction on high seas.

Ruling-

The Permanent Court of Arbitration decided that India did not have jurisdiction over the marines according to the United Nations Convention on the Law of the Sea (UNCLOS).

The Indian Supreme Court executed this decision while highlighting the necessity of compensation families of the victims. This case illustrated the relationship between international law and Indian jurisdiction in extraterritorial issues”[23].

Constitutional and Statutory Provisions Related to Extraterritoriality in India

‘Article 253 of the Indian Constitution’:

This article enables Parliament to make laws for implementing international treaties, even if they involve extraterritorial jurisdiction.

‘Section 1(4) and 1(5) of BNS [ Section 3 & 4 of IPC]’

Section 1(4) of BNS, prescribes punishment of offenses committed beyond, which by law may be tried within, India. Section 1(5) extends the code to include extra-territorial offenses.

Extradition and Treaties for Mutual Assistance–

India has signed many agreements permitting the prosecution of offenses with extraterritorial aspects, including terrorism and money laundering.

Challenges-

Limited Judicial Precedent-

Most cases related to extraterritorial elements are resolved through statutory interpretation rather than explicit judicial principles.

Reliance on Sovereign Consent: Indian courts often respect principles of sovereignty, limiting the extraterritorial application of domestic laws unless provided for.

Implementation of International Treaties: India has ratified many international human rights treaties but often requires legislative action to implement them domestically.

Conclusion

Extraterritorial jurisdiction underscores the principle that a state’s human rights obligations are not confined to its borders but extend to any sphere where it exercises authority or influence. The evolution of extraterritorial jurisdiction in international human rights law reflects a shift from rigid territorial boundaries to a more flexible, principle-based approach that prioritizes individual rights and state accountability. This change has eased and simplified the problems faced by people. Challenges remain in ensuring consistent application and enforcement, particularly in transnational corporate conduct, digital surveillance, and global environmental harm. The ongoing dialogue in international jurisprudence, treaty interpretation, and state practice will continue shaping this dynamic area of law.

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[2]Nyanduga, B. (n.d.). Conference paper: Perspectives on the African Commission on Human and Peoples’ Rights on the occasion of the 20th anniversary of the entry into force of the African Charter on Human and Peoples’ Rights. [online] Available at: http://www.ahrlj.up.ac.za/images/ahrlj/2006/ahrlj_vol6_no2_2006_bahame_tom_nyanduga.pdf

[3] IHRL 2796 (UNHRC 1981) Lopez Burgos v. Uruguay

[4] 68 ILR 41, IHRL 2801 Celiberti de Casariego v. Uruguay

[5] 123 ILR 94, IHRL 3273 Banković v. Belgium

[6] [2011] ECHR 1093 Al-Skeini v. United Kingdom

[7] ECHR Application no. 27765/09 Hirsi Jamaa v. Italy

[8] 569 US 108, 133 S. Ct. 1659 Kiobel v. Royal Dutch Petroleum Co.

[9] UNHCR (2025). Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant | UNHCR. [online] UNHCR. Available at: https://www.unhcr.org/media/human-rights-committee-general-comment-31-nature-general-legal-obligation-states-parties

[10] ICJ GL No 131 Advisory Opinion on the Wall

[11] What is Universal Jurisdiction? (UNHCR). Available at: https://seoul.ohchr.org/sites/default/files/2022-10/09_What%20is%20Universal%20Jurisdiction_formatting_FIN_ENG.pdf.

[12] Rüth, A. and Trilsch, M. (2003). Banković v. Belgium (Admissibility). App. No. 52207/99. American Journal of International Law, 97(1), pp.168–172. doi:https://doi.org/10.2307/3087113.

[13] Mallory, C. (2012). European Court of Human Rights Al-Skeini and Others v United Kingdom (Application No 55721/07) Judgment of 7 July 2011. The International and Comparative Law Quarterly, [online] 61(1), pp.301–312. Available at: https://www.jstor.org/stable/41350145.

[14] hrlibrary.umn.edu. (1979). University of Minnesota Human Rights Library. [online] Available at: http://hrlibrary.umn.edu/undocs/session36/12-52.htm

[15] dls (2021). Issa And Others v Turkey: ECHR 16 Nov 2004 – swarb.co.uk. [online] swarb.co.uk. Available at: https://swarb.co.uk/issa-and-others-v-turkey-echr-16-nov-2004

[16] Human Rights Law Centre. (2012). Forcible ‘push back’ of asylum seeker boats a violation of international human rights law. [online] Available at: https://www.hrlc.org.au/human-rights-case-summaries/hirsi-jamaa-and-others-v-italy-2012-echr-application-no-2776509-23-february-2012.

[17] Icrc.org. (2025). ECHR, Al-Jedda v. UK | How does law protect in war? – Online casebook. [online] Available at: https://casebook.icrc.org/case-study/echr-al-jedda-v-uk

[18] Center for Constitutional Rights. (2013). Kiobel v. Royal Dutch Petroleum Co. (Amicus). [online] Available at: https://ccrjustice.org/home/what-we-do/our-cases/kiobel-v-royal-dutch-petroleum-co-amicus.

[19] AIR 2021 SUPREME COURT 1789

[20] Legally Flawless. (2021). Case Brief: Mohammad Salimullah and Ors. Vs. Union of India and Ors. – Legally Flawless. [online] Available at: https://legallyflawless.in/case-brief-mohammad-salimullah-vs-union-of-india/.

[21] 1996 AIR 1234, 1996 SCC (1) 742

[22] Banerjee, S. (2021). National Human Rights Commission VS State of Arunachal Pradesh – LAW INSIDER INDIA- INSIGHT OF LAW (SUPREME COURT, HIGH COURT AND JUDICIARY. [online] LAW INSIDER INDIA- INSIGHT OF LAW (SUPREME COURT, HIGH COURT AND JUDICIARY. Available at: https://lawinsider.in/judgment/national-human-rights-commission-vs-state-of-arunachal-pradesh

[23] Pandey, A. (2018). Enrica Lexie Case – Italy v. India – Marine Issue Judgement Summary. [online] iPleaders. Available at: https://blog.ipleaders.in/enrica-lexie/.

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