Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 293
1. Preliminary requirements
a) Jurisdiction (Temporal, material and territorial)
International judicial and quasi-judicial bodies can adjudicate on any
alleged violation according to the law subject to their jurisdiction. This
concept is not to be confused with the “competence” of a court or tribunal
to hear a particular case. In international law, jurisdiction of an
international body equates with the reach of international responsibility
of a State. It divides, therefore, into three categories: temporal jurisdiction
(jurisdiction ratione temporis—concerning the period of time
within which the State is bound by the international obligation); material
jurisdiction (jurisdiction ratione materiae—concerning the limits of
the subject-matter of the State obligation), and territorial jurisdiction
(jurisdiction ratione loci—concerning the territorial reach of the State’s
responsibility).
i) Temporal jurisdiction (“ratione temporis”)
The basic principle of international law is that an international mechanism
has jurisdiction to adjudicate on alleged violations of international
law that occurred after the obligation to respect the obligation entered
into force for the State concerned. 1250 This principle applies equally to
international human rights mechanisms, so that they have jurisdiction
only over facts or acts that arose only after the entry into force of the
relevant treaty for the State Party. 1251
However, the principle applies differently to different situations:
• Instantaneous fact/act: the simplest situation occurs when the
fact or act to be contested is an instantaneous one. In this case,
it suffices to check whether the act occurred before or after the
entry into force of the relevant treaty; 1252
• Continuous fact/act: when the breach of the obligation has a
continuing character, then the wrongful fact or act continues until
the situation of violation is ended. Examples include enforced disappearances
or arbitrary detentions, when the person continues
to be disappeared (his whereabouts continue to be unknown) or
detained even after the entry into force of the treaty, regardless
1250 See, Article 13, ILC Draft Articles on State Responsibility. See, inter alia, Island of Palmas
(Netherlands/USA), UNRIAA, vol. II (Sales No. 1949.V.1), p. 829, at p. 845 (1928); Affaire
des navires Cape Horn Pigeon, James Hamilton Lewis, C.H. White et Kate and Anna, UNRIAA,
vol. IX (Sales No. 59.V.5), p. 66, at p. 69 (1902). See also, Northern Cameroons (Cameroon
v. United Kingdom), ICJ, Preliminary Objections, 2 December 1963, ICJ Reports 1963, p. 15,
at p. 35; Certain Phosphate Lands in Nauru (Nauru v. Australia), ICJ, Preliminary Objections,
26 June 1992, ICJ Reports 1992, p. 240, at pp. 253–255, paras. 31–36.
1251 See, X. v. Germany, ECommHR, Application No. 1151/61, Recuil des decisions, p. 119 (1961).
1252 See, Article 14.1, ILC Draft Articles on State Responsibility.