Más allá del tradicional enfoque del control efectivo: los renovados vínculos jurisdiccionales que justifican la aplicación extraterritorial de los tratados internacionales de derechos humano

Abstract

Regional and international monitoring bodies are nowadays facing increasingly complex cases because they deal with situations in which individuals suffer violations as a consequence of the conduct of states (actions and omissions) whose effects extend beyond their borders, even without direct physical contact. Thus, the traditional spatial and personal models, which require effective control over an area outside their territory or over individuals, become incapable, at least in their classic interpretation, of responding to the extraterritorial application of international human rights treaties. In the face of this reality, new jurisdictional links are appearing, that can be named as procedural and functional. The first of these links would be activated by the initiation of processes relating to the safeguarding of rights even beyond the conventional legal space. The second one would take into account the capacity of the state to fulfil its obligations, combined with other factors such as nationality, authority or power, knowledge of the situation giving rise to the violations, the impact or decisive influence or causal link between state acts and omissions, and the affectation of human rights.