#13577 - Extra Territoriality Quick - European Human Rights Law

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.’

1. Case Law

Initially based on a heavily territorial approach in Bankovic, propagating a view of jurisdiction as attached to the territory.

• ‘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.’

  • This does not necessarily have to be construed as extra-territorial, in that it is as if it were that State’s territory – it is de facto territory.

  • Added public powers/espace jurisdique requirements to Loizidou (important here that not a ‘troops on the ground’ situation, but bombing from above).

• This led to a number of stark distinctions, such as in Smith v Ministry of Defence – soldier held all the rights of the Convention while inside a military base, but none when outside.

• This was due to the fact that the rights could not be ‘divided and tailored’, so a State owed all, or none of them.

• Further, the application of the ECHR was limited to its espace jurisdique – it is a regional treaty and must therefore be applied regionally.

This led to a number of arbitrary distinctions, since it was based on a restrictive reading of the treaty.

• It refused to respond to the ‘vacuum’ arguments of Loizidou where one state had de facto and another de jure jurisdiction, leading to neither offering effective protection.

  • However, in that particular case, both states were parties to the ECHR, so it was merely a question of which state, rather than if a state was responsible.

  • Can leave a vacuum abroad, but the nature of a regional treaty.

• Intervening case law took an inconstintently personal approach

Al-Skeini, though not explicitly overruling Bankovic, fundamentally changes extra-territorial application.

• Jurisdiction was extended to whenever a ‘State through its agents exercises control and authority over an individual’; ‘what is decisive in such cases is the exercise of physical power and control over the person in question’.

• In this sense, the ECHR rights could be divided and tailored in a personal approach, relating to the individual, and not (in essence) the territory.

• Thus, in Al Saadoon (2015), soldiers in Iraq under personal jurisdiction of state and responsible for shootings.

Though fundamentally changing the test, retained the exceptional nature of such jurisdiction, the public powers requirement and that jurisdiction is primarily territorial.

• It has been contended that Al-Hassan abandoned the public powers requirement, moving to an ever broader test.

Judge Bonello gave a separate, though effectively dissenting, opinion.

• He criticised the fact-specific nature of the ‘patchwork’ case law and claimed himself unwilling to except an ‘a la carte’ respect for human rights – it is an important point to remember that general principles are drawn from fact-specific judgments.

• He adopted a functional test, which ensures that human rights protection was not ‘causal and approximate depending on geographical coordinates’.

  • Test: ‘a State has jurisdiction for the purpose of Article 1 whenever the observance or the breach of any of these functions is within its authority and control.’

• Arguably, this gives the most structured approach to what tends to be a fact-specific judgment.

• Shenin: advocates a ‘facticity determines normativity approach’, but there must be some principled guidance for rule of law reasons.

2. Extension of jurisdiction

Jurisdiction has been made progressively wider, extending beyond the initially territorial approach, making distinctions more arbitrary.

• Milanovic challenges the arbitrary distinctions, with the logical conclusion of (essentially) universal protection for human rights.

  • Based on the idea that 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’.

• In particular, she argues that the remaining problems in Al-Skeini are the remnants of Bankovic.

  • Considers that extra-territorial jurisdictions should no longer be exceptional in that it defies the universal nature of human rights.

    • However, a distinction must be made between the jurisdiction to prescribe and the jurisdiction to enforce – the ECHR is a primarily regional instrument.

    • Even Milanovic notes that ‘the financial implications for the UK are by no means negligible’.

  • Challenges the public powers requirement in that it leaves us with the situation that, while the power to kill is ‘authority and control’ over the individual if the state exercises public power, it is not that state has not arrested the individual beforehand, or is merely firing from an aircraft.

    • Though this is arbitrary, it might be the cost of extending jurisdiction beyond the traditional conception of ‘territory’, otherwise it descends into one of the key arguments against personal jurisdiction given in Bankovic – jurisdiction arises wherever a State agent causes adverse effects abroad.

Maclachlan argues that this need not be limited by a strict reading of the treaty, since to apply the PIL concept of jurisdiction in a HR context is a ‘fundamental fallacy’.

• Traditional conception of jurisdiction is based on constraining state control over individuals, the question being the extent to which a state is entitled to exercise this power; 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.

• Thus, he argues that the application of the concept actually has the reverse effect of that intended, since it operates in a licensing...