Extra-territorial Application of the ECHR

Article 1, ECHR:

‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Traditional jurisdiction:

Public international law characterises jurisdiction as a principle constraining the legislative competence of a state’s native territory.

This is derived from a respect for the sovereign autonomy of States – it ensures that the exercise of jurisdiction by one state does not constitute an impermissible interference with the sovereign jurisdiction of another.

Application of this principle in the field of human rights law, to Maclachlan, is a fundamental fallacy:

Traditional jurisdiction is based on constraining state control over individuals, the question being the extent to which a state is entitled to exercise this power; but in the human rights context, state power has already been exercised extraterritorially, the question being the extent of responsibility owed to individuals from those acts.
There are different starting points:
- In PIL, there is an existing array of ‘old’ obligations owed, of which some might be infringed.
- In HR, there is a vacuum of rights, with the potential of adding ‘new’ obligations.
Thus, application of the traditional conception actually has the reverse effect of that intended, since it operates in a licensing manner, rather than a constraining manner.

Extra-territorial application

Issue is the definition and scope of ‘jurisdiction’.
When a state acts extra-territorially, a connecting factor between the claimant and the State is necessary, to determine whether (and in regards to what) a state is liable.
This connecting factor is jurisdiction.
Loizidou: ‘the responsibility of a Contracting Party may also arise when as a consequence of military action… it exercises effective control of an area outside its national territory’.

Perception of a vacuum:

Loizidou v Turkey (Preliminary Objections) (1995):

Here, Northern Cyprus was under the control of Turkish forces, where alleged human rights violations occurred. Cyprus did not have the practical control to secure human rights in the area (while, in principle, they were able to); Turkey did have the practical control to secure human rights (which, in principle, they were unable to).
- Perceived vacuum in that neither party would/could enforce human rights – thus, a lack of such rights here.
- However, in this case, both countries were contracting parties to the ECHR, thus there was a limited vacuum – not that there was no enforcement, but the question of who should enforce.
- Real issue arises where the extra-territorial state is not a contracting party – here, there may be no protection.
  - For example, the actions of the US in Guantanamo Bay.

Underlying principle against allowing the vacuum is advocated in Lopex Burgos v Uruguay (1981), in relation to Article 2(1) of the Covenant on Civil and Political Rights (1966):

‘It would be unconscionable to… permit a State party to perpetuate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory’.

Clear extra-territorial jurisdiction approach in international law, despite Article 2(1) of the International Covenant on Civil and Political Rights appearing contradictory:

‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognise in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

Territorial Approach:

The initial attempt to bridge the vacuum was a territorial approach:

This propagates a view of jurisdiction as attached to the territory – a state acting abroad is not acting extra-territorially in such instances, but through certain factors, their territory has extended beyond traditional borders.
Can be argued that difference between this and the personal approach is just a matter of degree – if the territory is limited down, it may do so to the extent of only a single person.

Bankovic v United Kingdom (2007):

‘A watershed authority, in the light of which the Strasbourg jurisprudence as a whole has to be re-evaluated’.

Death from bombing of radio and television station.

‘Exercise of extra-territorial jurisdiction by a Contracting State is exceptional… done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercise all or some of the public powers normally to be exercised by that Government’.
- In essence, replaced those normally responsible.
- ‘The court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial’.

Problems:

The territorial approach;
The ‘exceptional’ nature of extra-territorial jurisdiction;
The apparent inability for rights to be ‘divided and tailored’;
Apparent regional nature of extra-territorial jurisdiction, with espace jurisdique.

The territorial approach:

Leads to inevitable arbitrary distinctions – where a state may ‘almost’ have effective control, or where there is effective control in a small area, but not surrounding it.
- Seen in Smith v Ministry of Defence where, while holding all human rights on the military base, as soon as he left, he was left with no rights at all.
Requires a line to be placed on the ground as to where an individual has human rights, and where he does not.
Leads to the conclusion that extra-territorial human rights attach to the ground, rather than the people in question.

The ‘exceptional’ nature of extra-territorial jurisdiction:

Somewhat justifiable in the court’s reluctance to impose ‘human rights imperialism’ and prevent the ECtHR being the arbiter to all of Europe’s extra-territorial conquests.
- Would make it unworkable in terms of both cost and efficiency.
However, universal nature of human rights protection makes it a shame – strong moral argument against.

Inability for rights to be ‘divided and tailored’:

Enforces the arbitrary distinctions by having an ‘all or nothing’ approach.

Espace jurisdique:

The mere conception of the Convention applying in this way denies the universal nature of human rights.
In this sense, the only similarity between the PIL conception of jurisdiction, and that applicable to human rights, is the mere word: ‘jurisdiction’.
‘The Convention was not designed to be applied throughout the world, even in respect of the conduct of contracting states’.

Development of a more personal approach:

Al Skeini v United Kingdom:

Concerned the killing of six Iraqi civilians by British soldier in Iraq. Procedural claim. First five were dismissed, but sixth allowed (held in a UK detention facility).

‘Whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be ‘divided and tailored’.
- Allows the rights to be attached to the individual, rather than the ground.
Attempted to present the previous case law in a compatible way.

The Court detached itself from a purely territorial approach:

‘The Courts does not consider that jurisdiction in the above arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.’

Strong opinion from Judge Bonello (concurred with result but, in effect, dissenting):

Criticised the inconsistent case law – ‘spawned a number of ‘leading’ judgments based on a need-to-decide basis, patchwork case law at best. Inevitably, the doctrines established seem to go too far to some, and not far enough to others’.
Fundamental aim of the treaty was ‘the universal and effective recognition and observance’ of fundamental human rights.
Five basic minimum functions assumed by every state by virtue of its having contracted into the Convention:
1. By not violating (through their agents) HRs;
2. By having in place systems which prevent breaches of HRs;
3. By investigating complaints of human-rights abuses;
4. By scourging those of their agents who infringe human rights, and;
5. By compensating the victims of breaches of HRs.

Outlines a ‘functional’ test, which ensures human rights protection was not ‘casual and approximate depending on geographical co-ordinates’.
- Said he was ‘unwilling to endorse a la carte respect for human rights.’

A more personal approach was propounded in the UK courts in Smith, Ellis and Allbutt v Ministry of Defence, where it was held that soldiers were udner the personal jurisdiction of the UK at all times when serving out of the UK, by virtue of the fact that the UK exercised full authority and control over them.

Still maintains two elements of Bankovic:

The ‘exceptional’ nature of such jurisdiction, and
The ‘public powers’ requirement.

Public powers

Milanovic: by retaining public powers, we are confronted with the proposition that, while the power to kill is ‘authority and control’ over...

#13578 - Extra Territorial - European Human Rights Law

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