The European Convention on Human Rights and General International Law by van Aaken Anne;Motoc Iulia;

Author:van Aaken, Anne;Motoc, Iulia;
Language: eng
Format: epub
Publisher: Oxford University Press, Incorporated
Published: 2018-01-15T00:00:00+00:00

4. Concurrent Duties

State jurisdiction is the trigger for the application of human rights. Since the jurisdiction of a given State over a certain person gives rise to human rights duties of that State towards that person, one may venture that the concurrent jurisdictions of many States over the same person can give rise to many human rights duties towards that same person. One may then consider the different States of jurisdiction’s duties as concurrent too.69

It is true that so-called concurrent ECHR duties can arise separately as distinct human rights duties owed by each respective State of jurisdiction to its right holders under their respective relationship of jurisdiction. This is a consequence of the exclusive and, hence, separate nature of political and legal authority in general and, hence, of the different States’ jurisdiction even when their respective jurisdictions are concurrent. Human rights duties are unilateral duties owed by each State on its own: they are not owed collectively as multilateral duties.70 However, because they are owed to the same right holders in the same context, issues pertaining to their relationship in their respective specification and allocation arise in practice. The concurrence of jurisdiction can affect the type and content of human rights duties that arise to the extent that their concurrence implies a concurrence of effective control of the same right holders and, hence, a concurrence of threat to, or impact upon, the right holders’ protected interests. This is also true in the case that one of the States of concurrent jurisdictions has lost effective territorial control to another: the former State has positive duties to regain control and to adopt measures to ensure that other human rights duties arise in relation to the human rights duties of the State of extraterritorial jurisdiction exercising effective control over its territory and the same people.71

The concurrence of human rights duties can be of three kinds. The first kind of concurrent duties are ‘competing duties’ arising out of the parallel and distinct (equivalent) effective control and jurisdiction by all States at hand. This will usually be the case when their respective jurisdictions are territorial and each State is exercising it over its own territory.72 The second kind of concurrent human rights duties are ‘joint duties’ arising concurrently out of joint effective control and jurisdiction by the States in question. This will usually be the case when one of the States exercises extraterritorial jurisdiction hand in hand with the State of territorial jurisdiction,73 but also when many States are exercising extraterritorial jurisdiction together.74 Finally, concurrent human rights duties may also be ‘complementary duties’ arising out of different degrees of effective control and jurisdiction by the States in question. This can be the case when territorial and extraterritorial jurisdictions concur and one State has lost effective control to another State75 or delegated some of its authority to another State.76

Importantly, however, all the usual types of human rights duties, ie, (positive and negative) duties (to respect, protect, and fulfil), can arise in principle from State jurisdiction. These duties merely depend on the type and degree of effective control over the right holders.

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