Jurisdiction

The original draft of Article 2 CRC had delimited the scope of obligations of contracting States to children
‘in their territories’.

Perhaps the main conclusion to be drawn from the preparatory works is not that they provide us with
the exact envisaged personal scope of application, but rather that they reflect a common understanding
that the notions of territory and ‘jurisdiction’ do not necessarily coincide and that States will sometimes
encounter difficulties in ensuring human rights, in particular in situations of colliding State
sovereignties.4

In situations where States act beyond the limits of their ‘jurisdiction’, the personal scope of human
rights protection is therefore not a question of legitimacy but of fact. 49 It is not relevant whether a
State has a legal title to act, but it is relevant whether the link between the individual affected and the
State is sufficiently close as to oblige the State to secure that individual’s rights.

act only within clearly defined ‘jurisdictional’ bounds and that it is only if States act in accordance with
those bounds that individuals would fall under the scope of human rights protection.

Critical analysis

It would greatly hamper the effective protection of human rights if the condition of an individual falling
under a State’s ‘jurisdiction’ in human rights law is understood as requiring that a State has legitimately
exercised power for an individual to be able to benefit from human rights protection.

Under international custom and through bilateral and multilateral treaties, consular officers stationed
abroad may perform a wide variety of functions such as the issue of passports, travel documents and
visas or to act as notary and civil registrar.16

In contrast, it was contended, in particular by the United States, that neither would a reference to
‘jurisdiction’ alone suffice, because a State would normally not be able to protect (or enforce) the rights
of persons living outside its territory who might be subject to its (legislative) ‘jurisdiction’; in such cases
action would be possible only through diplomatic channels.31 In the final stages of the negotiations it
was eventually decided to refer both to territory and jurisdiction – resulting in what later has been
termed “this awkwardly formulated provision”

The original draft of Article 2 CRC had delimited the scope of obligations of contracting States to children
‘in their territories’. In considering to opt for the wordings chosen in the ICCPR, it was indicated that the
dual requirement of territory and jurisdiction could give rise to uncertainty, and an example mentioned
the legal status of children who are within a State’s territory but outside its ‘jurisdiction’, such as
diplomats’ children.37

Perhaps the main conclusion to be drawn from the preparatory works is not that they provide us with
the exact envisaged personal scope of application, but rather that they reflect a common understanding
that the notions of territory and ‘jurisdiction’ do not necessarily coincide and that States will sometimes
encounter difficulties in ensuring human rights, in particular in situations of colliding State sovereignties.