Jurisdiction of a State Party under Article 2(1) of the ICCPR: A Comment on A.S. and Others v. Italy

Abstract

In A.S. and others v. Italy, the question of the jurisdiction of a State party under Article 2(1) of the ICCPR is formulated as “whether the alleged victims could be considered to have been within the power or effective control of the State party”. Per HRC’s earlier views, one form of “within the power or effective control” of a State party may be identified by the impact on the enjoyment of rights caused by a State party’s action. This can be considered as the “functional impact model”. Apparently this is what the HRC applied in this case. But a State party’s inaction cannot cause any impact unless it owes prior positive obligations towards the allegedly impacted person. As the applicable instruments allow considerable discretion to a State party to decide whether to rescue the persons in distress at sea, Italy’s “obligations” to rescue and to cooperate do not necessarily trigger Italy’s positive obligations towards the relevant persons. Taking Italy’s jurisdiction as a consequence of the causal link between the sinking of the vessel and the resulting sufferings (and deaths in some cases) of the persons on the vessel and Italy’s decisions (inaction) is the result of an expansive and improper application of the special approach adopted in other cases. To be non-arbitrary, one may find that affected persons are “within the power or effective control” of a State party: (1) where harm is caused by affirmative acts of a State party, the impact can be deemed as a manifestation that the person impacted is “within the power or effective control” of the State party; or (2) where harm is caused by an omission of a State party, there must be a prior specific legal relationship between the allegedly impacted person and the State party.