A/80/302
establishment of the centre in Nauru and directed or oversaw its operations, including
security, cleaning, catering, recreational and educational services. 103
53. States may also exercise extraterritorial jurisdiction where they exercise control
over situations or operations such as to affect an individual’s enjoyment of a right,
such as the right to life, in a direct and reasonably foreseeable manner. 104 In A.S. et
al. v. Italy, concerning a shipwreck that caused the death of around 200 persons, the
Human Rights Committee found that Italy exercised extraterritorial jurisdiction over
the individuals on the vessel in distress because of a special relationship of
dependency established between the individuals on the vessel in distress and Italy.
This relationship comprised factual elements, such as the initial contact made by the
vessel in distress with the Italian rescue centre, the proximity of an Italian vessel to
the vessel in distress and the legal obligations of Italy under the international law of
the sea. As a result, the individuals were directly affected by the decisions made by
the Italian authorities in a manner that was reasonably foreseeable in the light of the
relevant legal obligations of Italy. 105
B.
Responsibility for human rights violations
54. Given the multitude of actors involved in externalization measures, the question
arises as to who bears responsibility when a human rights violation occurs. In the
present section, the Special Rapporteur outlines the basic rules under the law of
international responsibility governing how a human rights violation can be attributed
to States or international organizations. 106 These rules are enshrined principally in the
articles on responsibility of States for internationally wrongful acts 107 (chap. II) and
the articles on the responsibility of international organizations 108 (chap. II),
elaborated by the International Law Commission.
1.
Attribution of conduct
55. Human rights violations occurring in the context of externalization measures
can be attributed, in some instances, to a State or an international organization. In the
case of States, attribution is most straightforward when the conduct in question is
carried out by State organs exercising legislative, executive, judicial or other
governmental functions. Under the articles on responsibility of States for
internationally wrongful acts, however, a broader range of conduct can be attributed
to a State. This includes conduct of persons or entities empowered to exercise
elements of governmental authority; organs placed at a State’s disposal by another
State, provided that they exercise governmental authority; individuals or groups
acting under the direction or control of a State; or individuals or groups exercising
elements of governmental authority in the absence of official authorities. Similarly,
under the articles on the responsibility of international organizations, the conduct that
is primarily attributable to an international organization is that of its organs or agents
when acting in the performance of their functions. Attribution also extends to the
conduct of State organs or the organs or agents of another international organization
placed at its disposal, provided that the organization exercises effective control over
the conduct in question.
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103
104
105
106
107
108
25-12609
Human Rights Committee, M.I. et al. v. Australia, para. 9.9, and Human Rights Committee,
Nabhari v. Australia (CCPR/C/142/D/3663/2019) para. 7.15.
Human Rights Committee, general comment No. 36 (2019), para. 63.
Human Rights Committee, A.S. et al. v. Italy (CCPR/C/130/D/3042/2017), para. 7.8.
A/HRC/37/50, para. 56.
See General Assembly resolution 58/63, annex; A/74/83; and A/HRC/37/50, para. 56.
See General Assembly resolution 66/100, annex.
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