INTRODUCTION: THE CHALLENGES OF ATTRIBUTING OBLIGATIONS

In this chapter we discuss the attribution of obligations to States, IFIs and TNCs. In other words, we attempt to determine in which instances a certain duty-bearer has obligations. This issue is often discussed under ‘jurisdiction in international human rights law'. We will, however, use a more neutral expression and speak of the attribution of obligations (see infra). In the field of extraterritorial and human rights obligations of NSAs, such attribution is challenging for several reasons.

First, the scholarly community has discussed extensively the usefulness of a so-called jurisdictional clause in human rights treaties. Scholars have argued that any limits to the attribution of obligations, such as through the notion of jurisdiction, will function as a doctrinal bar for cases involving extraterritorial obligations. The first challenge or question is therefore whether we require a notion such as jurisdiction in order to limit the attribution of obligations in human rights treaties (infra, section 11.3).

Second, with respect to States, the attribution of obligation is primarily done through control over territory. The notion of State jurisdiction is grounded in territory as there is a presumption that jurisdiction is exercised throughout the State's territory. States exercise power over their territory and therefore must ensure the rights established under a given treaty. Human rights bodies and courts have found that only in exceptional circumstances can extraterritorial obligations be attributed to a foreign State. This begs the question of whether we should move beyond this traditional starting point for the attribution of obligations. The question is also particularly relevant with respect to the obligations of NSAs, considering that non-State actors do not have a territory. Their obligations thus cannot be attributed on the basis of territory.

Stepping away from territory as our starting point raises additional questions, most importantly, whether or not there should be another core basis for attributing obligations to States (infra, section 11.4), and whether this affects the traditional notion of the domestic State as the primary duty-bearer (infra, section 11.4.3). Our main argument is that we need to step away from de facto capacity (control over territory is an expression of such capacity) as a principle that determines the attribution of obligations.