are able to legally ensure the free and full exercise of human rights.” 50 As a result of this
obligation, States must prevent, investigate and punish any violation of the rights recognized by
the Pact and, also, endeavor to re-establish any right that has been violated, as well as to redress
the harm caused by the human rights violation. 51
81.
The scope of the State obligations under the Pact depends on the scope accorded to the
word “jurisdiction” in the text of Article 1(1) of the American Convention.
82.
The concept of “jurisdiction” or “competence” (concepts that are synonymous in
international law) denotes, principally, a “territorial” element, because it is, above all, in its
territory that a State exercises its sovereignty, executes its competences and, essentially,
implements its powers.
83.
However, at times, a State may exercise is competence, or its jurisdiction, outside its
territory. In such cases, it is evident that the persons who it is sought to protect by the exercise of
this extraterritorial competence are considered subject to the “jurisdiction” of the State that
exercises that competence, in keeping with the scope that international human right law grants to
this concept. In other words, even if the persons who are under the jurisdiction of a State are, in
principle, those persons who are within its territory (or in the ships carrying its flag, or in other
situations of this type), it may happen, exceptionally, that persons who are outside the territory of
a State are considered, from the point of view of the application of international human rights law,
as if they were under the jurisdiction of this State, if the latter is exercising jurisdiction outside its
territory.
84.
This interpretation was recognized by the International Court of Justice in its Advisory
Opinion on the Legal consequences of the construction of a wall in the Occupied Palestinian
Territory:
“[W]hile the jurisdiction of States is primarily territorial, it may sometimes be exercised
outside the national territory.” 52
85.
This accords with the position of different human rights protection bodies, as well as that
of the Inter-American Commission on Human Rights, which has established that:
“Even though jurisdiction usually refers to the authority over persons who are within the
territory of a State, human right are inherent for all human beings and are not based on
their citizenship or location.” 53
86.
Thus, although the jurisdiction of a State is, in principle, territorial, it may, exceptionally,
50
ICourtHR, Case of Velasquez Rodriguez, v. Honduras, merits, op. cit., para. 166.
51
Ibid.
52
I.C.J., Legal consequences of the construction of a wall in the Occupied Palestinian Territory, Advisory
Opinion of July 9, 2004, para. 109.
53
IACHR, Case of Franklin Guillermo Aisalla Molina, Report No. 112/10, October 21, 2010, para. 91
60
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