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Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties

Israel Law Review, Vol. 40, No. 2, pp. 503-526, 2007

Hebrew University International Law Research Paper No. 17-07

25 Pages Posted: 27 Nov 2007 Last revised: 21 Feb 2015

Ralph Wilde

University College London - Faculty of Laws

Abstract

The spatial test for triggering the extraterritorial application of the main treaties on civil and political rights law has been the subject of significant judicial comment in recent years. This piece offers a critical evaluation of an important common theme in these judicial determinations: the suggestion that the spatial test is to be understood in a manner that covers a sub-set of extraterritorial activity involving territorial control occurring as a matter of fact. It provides a sustained explanation and critical evaluation of four different ways such a suggestion can be identified in some of the key judicial determinations on the issue of the extraterritorial application of treaties on civil and political rights generally. Since one of the other main areas of law potentially relevant to extraterritorial activity - the law of occupation - also uses a test of territorial control as a trigger for application, the interplay between the approaches taken in each area of law on the question of what type of control is required mediates the extent to which the fields of activity covered by the two areas of law overlap. Understanding the merit of the determinations concerning human rights law discussed in this piece is significant, then, not only on its own terms, but also because of its significance to the broader question of the overlap between human rights law and the law of occupation.

Keywords: state, obligation, extraterritoially, human rights, treaties, spital test, occupation

Suggested Citation

Wilde, Ralph, Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties. Israel Law Review, Vol. 40, No. 2, pp. 503-526, 2007; Hebrew University International Law Research Paper No. 17-07. Available at SSRN: https://ssrn.com/abstract=1032874

Ralph Wilde (Contact Author)

University College London - Faculty of Laws ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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