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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 51
in their jurisdiction, 44 irrespective of nationality. Such jurisdiction is not
identified solely with a State’s territory. The first question to be answered
when a migrant arrives in a foreign State is therefore whether
they have indeed “entered” the State. In most cases, this will be clear:
the person will be considered to have entered the State when he or she
accesses its territory. It has also been clearly established that the migrant
is within the jurisdiction of the State when he or she is present in
an “international zone” or “zone d’attente” of an airport. 45
However, the term “jurisdiction” has a wider reach than the national territory
of the State. It applies to all persons who fall under the authority
or the effective control of the State’s authorities or of other people acting
on its behalf, and to all extraterritorial zones, whether of a foreign State
or not, in a range of contexts. These include situations where the State
exercises effective control over all or part of a territory or persons; some
situations where it has effectively extended its jurisdiction by bringing
about forseeable effects in another territority; or where it may be required
by under an international obligation to to so extend its jurisdiction. 46 The
European Court of Human Rights has found that jurisdiction has extra-
44 Article 2.1 ICCPR; Article 2.1 CRC; Article 7 ICRMW; Article 1 ECHR; Article 1.1 ACHR;
Article 3.1 ArCHR.
45 Amuur v. France, ECtHR, Case No. 17/1995/523/609, Judgment of 20 May 1996, paras. 52–53.
46 See, General Comment No. 31, Nature of the General Legal Obligations Imposed on State Parties
to the Covenant, CCPR, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, paras. 10–11;
Lopez Burgos v. Uruguay, CCPR, Communication No. R 12/52, Views of 6 June 1979; Celiberti
de Casariego v. Uruguay, CCPR, Communication No. 56/1979, Views of 29 July 1981. See also,
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
ICJ, Judgment, 19 December 2005, ICJ Reports 2005, p. 168, paras. 180 and 216; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, Advisory
Opinion, ICJ Reports 2004, p. 136, para. 109; Case Concerning the Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Serbia Montenegro), ICJ, Judgment, 26 February 2007 No. 91 [2007] ICJ 1; Application of
the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia
v. Russian Federation), ICJ, Provisional Measures, Order of 15 October 2008, ICJ Reports 2008,
p. 353; Victor Saldaño v. Argentina, IACHR, Petition, Report No. 38/99, Admissibility Decision,
11 March 1999, para. 17; Haitian Centre for Human Rights v. United States of America, IACHR,
Case 10.675, Report No. 51/96, Merits, 13 March 1997 (Haitian Interdictions Case); Coard
et al v. United States, IACHR, Case 10.951, Report no 109/99, Merits, 29 September 1999,
para. 37; Detainees in Guantanamo Bay, Cuba, IACHR, Request for Precautionary Measures,
13 March 2002, para. 532; Democratic Republic of Congo (DRC) v. Burundi, Rwanda, Uganda,
ACommHPR, Communication 227/1999, 33 rd Ordinary Session, May 2003; CAT, General Comment
No. 2, op. cit., fn. 31, paras. 7 and 16; Concluding Observations on USA, CAT, UN Doc.
CAT/C/USA/CO/2, 18 May 2006, para. 15; Xhavara and Others v. Italy and Albania, ECtHR, Application
No. 39473/98, Admissibility decision, 11 January 2001; Women on Waves and Others
v. Portugal, ECtHR, Application No. 31276/05, Judgment of 3 February 2009; Loizidou v. Turkey,
ECtHR, GC, Application No. 15318/89, Judgment of 18 December 1996; Issa and Others v.
Turkey, ECtHR, Application No. 31821/96, Judgment of 16 November 2004, para. 66; Al-Skeini
and Others v. United Kingdom, ECtHR, GC, Application No. 55721/07, Judgment of 7 July
2011, paras. 133–142; Hirsi Jamaa and Others v. Italy, ECtHR, GC, Application No. 27765,
23 February 2012, paras. 73–82. See also, Maastricht Principles on Extraterritorial Obligations
of States in the area of Economic, Social and Cultural Rights, 29 February 2012, available at
http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/12/Maastricht-ETO-Principles-
ENG- booklet.pdf; and their commentary available at http://icj.wpengine.netdna-cdn.com/
wp-content/uploads/2012/12/HRQMaastricht-Maastricht-Principles-on-ETO.pdf.