From compromise to principle: Clarifying the concept of state jurisdiction in human rights treaties

Human Rights Law Review

Volumn 8, Issue 3, 2008, Pages 411-448

  Milanović, Marko ^a  

^a GONVILLE AND CAIUS COLLEGE   (United Kingdom)

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EID: 50049084985     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngn021     Document Type: Review

References (170)

1. Banković and Others v Belgium and Others 2001-XII 333; (2007) 44 EHRR SE5.
2. R (Al-Skeini and Others) v Secretary of State for Defence [2007] UKHL 26, [2007] 3 WLR 33, [2007] 3 All ER 685, on appeal from [2005] EWCA Civ 1609, [2007] QB 140.
3. Saddam Hussein v Albania and Others (2006) 42 EHRR SE 16.
4. See Conclusions and Recommendations of the Committee against Torture regarding United States of America, 25 july 2006, CAT/C/USA/CO/2 at paras 14 and 15; and Concluding Observations of the Human Rights Committee regarding United States of America, 15 September 2006, CCPR/C/ USA/CO/3 at para. 10.
5. See 'Lawyers for slain Russian agent Litvinenko take case to European Court', International Herald Tribune, 22 November 2007.
6. (ETS 5), 213 UNTS 222, entered into force 3 September 1953.
7. 999 UNTS 171, entered into force 23 March 1976.
8. Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, (1990) 29 ILM 1464, entered into force 11 July 1991, Article 1 of which reads: 'No one within the jurisdiction of a State Party to the present Protocol shall be executed. Each Stale Party shall take all necessary measures to abolish the death penalty within its jurisdiction.'
9. See Human Rights Committee, General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/ C/21/Rev.1/Add.13 (2004); 11 IHRR 905 (2004) at para. 11.
10. 2220 UNTS 93, entered into force 1 July 2003.
11. 'States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention.'
12. OAS TS 36, 1144 UNTS 123, entered into force 18 July 1978. Article 1 (1) of which reads: 'The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.'
13. 1577 UNTS 3, entered into force 2 September 1990, Article 2(1) of which reads: 'Staues Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.'
14. 660 UNTS 195, entered into force 4 January 1969.
15. See Articles I, IV and VI, Inter-American Convention on Forced Disappearance of Persons 1994, (1994) 33 ILM 1429, entered into force 28 March 1996; Articles 9, 11, 31 and 34, International Convention for the Protection of All Persons from Enforced Disappearance 2006. 20 September 2006, A/61/488; Articles 6(1), 6(3), 8(1), 8(2), 12 and 14, Inter-American Convention to Prevent and Punnish Torture 1985, OAS TS 67, entered into force 28 February 1987.
16. 1465 UNTS 85, entered into force 26 June 1987.
17. Article 1, Optional Protocol to the International Covenant on Civil and Political Rights, 999 UNTS 302, entered into force 23 March 1976.
18. Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 57/199, 18 December 2002, A/RES/57/199.
19. See also Articles 2 and 14, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987, ETS 126, entered into force 1 February 1989.
20. 1249 UNTS 13, entered into force 3 September 1981.
21. Optional Protocol to the Convention on the Elimination of Discrimination against Women. 2131 UNTS 97, entered into force 22 December 2000.
22. See, for example, Ress,'Problems of extraterritorial human rights violations: The jurisdiction of the European CourtTof Human Rights: the Banković case', (2002) 12 Italian Yearbook of International Law at 51
23. Ross, Jurisdictional Aspects of International Human Rights and Humanitarian Law in the War on Terror', in Coomans and Kamminga (eds), Extraterritorial Application ofHmnan Rights Treaties (Antwerp, Oxford: Intersentia, 2004), at 9, 23-4
24. Gillard, 'International Humanitarian Law and Extraterritorial State Conduct', in Coomans and Kamminga,
25. ibid. at 25 and 37
26. and Happold, 'Banković v Belgium and the Territorial Scope of the European Convention on Human Rights, (2003) 3 Human Rights Law Review 77, at 82-4.
27. See O'Boyle,'The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on "Life After Banković"', in Coomans and Kamminga, supra n. 22 at 125.
28. See Common Articles 2 and 3 of the four Geneva Conventions of 1949
29. Article 1 of Additional Protocol I of 1977
30. and Article 1 of Additional Protocol II of 1977.
31. There are, of course, some international humanitarian law obligations which apply outside of armed conflict, most notably during belligerent occupation, but also in peace time, see, for example, Article 127 of the Third Geneva Convention.
32. See, for example, the Saddam Hussein, supra n. 3.
33. See Nowak, UN Covenant on Civil and Political Rights CCPR Commentary 2nd edn (Kehl: Engel, 2005) at 858-862.
34. See also McGoldrick, 'Extraterritorial Application of the international Covenant on Civil and Political Rights', in Coomans and Kamminga, supra n. 22 at 43-4.
35. UNTS 331, 8 ILM 679, entered into force 27 January 1980.
36. Banković, supra n. 1 at para. 57.
37. Banković, supra n. 1 at paras 59-61.
38. See Lawson, 'Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights', in Coomans and Kamminga, supra n. 22 at III, who well notes that the Court silently added the reference to 'public powers' in the quotation that follows, which was never mentioned in its previous case law.
39. Banković, supra n. 1 al para. 71.
40. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion of 9 July 2004, ICJ Reports 2004 at 136, at para. 109.
41. Ibid. at paras 109-111.
42. See generally Lowe, 'Jurisdiction', in Evans (ed.), International Law 2nd edn (Oxford: Oxford University Press, 2006) at 335
43. Shaw, International Law, 5th edn (Cambridge: Cambridge University Press, 2003) at 572
44. and Akehurst, 'Jurisdiction in International Law', (1972-1973) British Year Book of International Law 145.
45. See, for example. Brownlie. Principles of Public International Law 6th edn (Oxford: Oxford University Press, 2003) at 297
46. and Cassese, International Law, 2nd edn (Oxford! Oxford University Press, 2005); at 49
47. See O'Keefe, 'Universal Jurisdiction: Clarifying the Basic Concept', (2004) 2 Journal of International Criminal Justice 735, at 736.
48. See Lowe, supra n. 36 at 338-9
49. Cassese, supra n. 37 at 49-51
50. Shaw, supra n. 36 at 572
51. O'Keefe, supra n. 38 at 736-7
52. and s. 401, Restatement (Third) of the Foreign Relations Law of the united States.
53. See Cassese, supra n. 37 at 50
54. Lowe, supra n. 36 at 338
55. and O'Keefe, supra n. 38 at 740.
56. This action was unanimously condemned by the UN Security Council, in Resolution 138 (1960).
57. See also Shaw, supra n. 36 at 577
58. and Lowe, supra n. 36 at 357.
59. Brownlie, supra n. 37 at 297.
60. For examples of extraterritorial prescriptive jurisdiction in fields as diverse as antitrust, taxation and environmental law, see generally the contributions in Meessen (ed.), Extraterritorial Jurisdiction in Theory and Practice (London: Kluwer Law International, 1996).
61. Though this is riot to say, of course, that ships and airplanes are floating or flying pieces of the state's territory.
62. Lowe, supra n. 36 at 342.
63. Banković, supra n. 1 at para. 59.
64. See O'Keefe, supra n. 38 at 738-9
65. and Lowe, supra n. 36 at 340-353.
66. Banković, supra n. 1 at paras 59 and 60. Unfortunately, as well shown by O'Keefe, the European Court is not the only international court to fail to appreciate the fundamental significance of the distinction between the jurisdiction to prescribe and the jurisdiction to enforce.
67. See Arrest Warrant of 11 April 2000 (Congo v Belgium), Judgment, ICJ Reports 2000, at 3.
68. Jennings and Watts (eds), Oppenheim's International Law, 9th edn (London: Longman, 1992), at 456 (emphasis added).
69. Mann, 'The Doctrine of International Jurisdiction Revisited After Twenty Years', (1984-III) 186 Recueil des cours 9, at 20.
70. This is not to understate the importance of previous cases of both the Court and the Commission, such as Hess, Xhavara, or Drozd - see generally Lawson, supra n. 32,
71. and O'Boyle, supra n. 23. However, these cases, unlike Banković did not purport to clearly delineate the notion of jurisdiction of Article 1 of the ECHR, and are not as interesting for answering conceptual and methodological questions as is the subsequent case law. Due to space constraints they will not be examined here.
72. Loizidou v Turkey (1995) 20 EHRR 99, Judgment (preliminary objections), at para. 62 (citations omitted, emphasis added).
73. Loizidou v Turkey (1997) 23 EHRR 513 at paras 52-57
74. and Cyprus v Turkey 2001-IV 172 at paras 77 and 78.
75. See Oxman, 'Jurisdiction of States' in Bernhardt (ed.) (1997) 3 Encyclopedia of Public International Law at 55.
76. For example, in the first Cyprus v Turkey case to be heard by the former European Commission on Human Right, Turkey argued that [t]he Commission had no jurisdiction ratione loci to examine the application as Cyprus did not fall under Turkish jurisdiction. Turkey had not extended her jurisdiction to the island of Cyprus since she had not annexed a part of the island nor established a military or civil government there. The administration of the Turkish Cypriot community had absolute jurisdiction over part of the island. Moreover, Turkey could not be held liable under Art. 63 of the Convention since she was not responsible for the international relations of either the whole or a part of Cyprus. Cyprus v Turkey (1975) 2 DR 125, at 130.
77. Article 42 of the Hague Regulations.
78. See generally Sassoli, 'Legislation and Maintenance of Public Order and Civil Life by Occupying Powers', (2005) 16 European Journal of International Law 661.
79. See, for example, Mann, supra n. 50 at 34, who states that: 'No State may exercise enforcement jurisdiction outside its own territory in the absence of its own legislature authorizing it to do so, that is to say, in the absence of legislative jurisdiction'.
80. Banković, supra n. 1 at para. 71.
81. See, for example, McGoldrick, supra n. 28 at 72, n. 132.
82. See also Lawson, supra n. 32 at 114-5.
83. Ilascu and Others v Moldova and Russia 2004-VII 179; (2004) 40 EHRR 46, Partially Dissenting Opinion of Judge Bratza, joined by Judges Rozakis, Hedigan, Thomassen and Pantiru, at para. 8.
84. Supra n. 15.
85. See, for example, Articles 6 and 7, International Convention for the Suppression of Terrorist Bombings 1998, 2149 UNTS 256 (1998)
86. Article 7, International Convention for the Suppression of the Financing of Terrorism, 39 ILM 270 (2000)
87. Article 9, International Convention for the Suppression of Acts of Nuclear Terrorism, GA Res.59/290, 13 April 2005, A/RES/59/290
88. and Article 4, United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1989, 28 ILM 497 (1989).
89. The Inter-American Convention to Prevent and Punish Torture 1985, OAS TS 67 entered into force 28 February 1987 (Inter-American Torture Convention).
90. See also Article 12(2), Inter-American Torture Convention.
91. The same conclusion was reached by Wilde in an excellent recent article. see Wilde. 'Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties', (2007) 40 Israel Law Review 503, especially at 508 and 513-4.
92. See also Ruth and Trilsch, 'Banković v. Belgium (Admissibility),' 97 American Journal of International Law (2003) 168, at 171
93. and De Schutter, 'Globalization and Jurisdiction: Lessons from the European Convention on Human Rights', (2006) 6 Baltic Yearbook of International Law 183.
94. Indeed, this is the gist of the 'authority and control' test developed by the European Commission of Human Rights, and adopted in several cases by the Human Rights Committee and the Inter-American Commission. The test has also been used by the European Court, most recently in Issa v Turkey (2005) 41 EHRR 27, in a manner almost completely at odds with Banković.
95. See, generally, Thornberry, International Law and the Rights of Minorities (Oxford: Oxford Universitv Press, 1993)
96. and Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford: Oxford University Press. 2004) at 121 ff.
97. Treaty of Peace between the Allied and Associated Powers and Austria; Protocol, Declaration and Special Declaration, St. Germain-en-Lave, 10 September 1919, available at: http://www.austlii.edu.au/au/other/dfat/ treaties/1920/3.html [last accessed 3 June 2008].
98. For instance, under Articlee 63(1) of the Treaty 'Austria undertakes to assure full and complete protection of life and liberty to all inhabitants of Austria without distinction of birth, nationality, language, race or religion' while according to Article 66(1) '[a]ll Austrian nationals shall be equal before the law and shall enjoy the same civil and political rights without distinction as to race, language or religion.'
99. Cited according to Simpson, supra n. 69 at 124 (emphasis added).
100. A similar provision can be found in Article 2(7) of the UN Charter.
101. For instance, the preamble to the Framework Convention for the Protection of National Minorities, CETS 157, refers to the states parties' resolve 'to protect within their respective territories the existence of national minorities.'
102. Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926, 60 LNTS 253, entered into force 9 March 1927.
103. Convention Concerning Forced or Compulsory Labour (ILO No. 29) 1930, 39 UNTS 55, entered into force 1 May 1932.
104. Available in (1948) 42 American Journal of International Law, Supplement 47.
105. See also Simpson, supra n. 69 at 328-331.
106. An almost identical clause can be found in Article 4 of Annex VI to the Treaty, which served as the statute of the Free Territory of Trieste. In 1954, Italy, Yugoslavi, the United Kingdom and the United States signed a Memorandum of Understanding which divided the Free State into italian and Yugoslav areas, see UN S/3301. Annexed to this Memorandum of Understanding is a Special Statute which Italy and Yugoslavia agreed to enforce, and which provides for the 'common intention of the italian and Yugoslav Governments to ensure human rights and fundamental freedoms without discrimination of race, sex, language and religion in the areas coming under their administration.' (emphasis added), see Schwelb, 'The Trieste Settlement and Human Rights', (1955) 49 American Journal International Law at 240. It should be noted that the provisions of the Peace Treaty and of the Special Statute on human rights differ mainly in that the word 'jurisdiction' in the former was replaced by the word 'administration' in the latter, which again suggests that both of these words were used with the same or a very similar meaning.
107. See Article 2, Treaty of Peace with Bulgaria, (1948) 42 American Journal of International Law Supplement 179; Article 6, Treaty of Peace with Finland, (1948) 42 American Journal of International Law Supplement 204; Article 2, Treaty of Peace with Hungary, (1948) 42 American Journal of International Law Supplement 225; and Article 3, Treaty of Peace with Romania. (1948) 42 American Journal of International Law Supplement 252.
108. During the initial sessions of the ITN Commission on Human Rights it was decided that both a declaration and a legally bindinq treaty, the Covenant, shoud be adopted. However, due to the start of the Cold War and the growing ideological differences between the Western and Eastern bloc, it proved impossible to conclude a single treaty that would guarantee both civil and political rights on the one side and socio-economic rights on the other. Thus the single Covenant was eventually split into two treaties that became the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
109. See Robertson (ed.), Collected Edition of the 'Travaux Préparatoires' of the European Convention on Human Rights, Vol. III (The Hague: Martinus Nijhoff, 1976) at 260.
110. Of course, this can be taken as a strong indication that the drafters did not envisage any extraterritorial application of the ECHR. indeed, this is exactly how this passage from the travaux is interpreted by the Court in Banković. However, that does not necessarily mean that jurisdiction over territory equals title over a territory, and there is no evidence in the travaux that the drafters wanted to limit the territorial applicability of the ECHR in this manner.
111. The first draft of the Covenant, proposed by the United Kingdom, as well as the subsequent draft of the working group of the Commission on Human Rights used the words 'all persons under its jurisdiction.' See Report of the Drafting Committee on International Bill of Rights to the Commission on Human Rights. 1 luly 1947. E/CN.4/21 at 30: And Report of the Working Part on an International Convention on Human Rights, 11 December 1947, E/CN.4/56 at 5. Subsequent drafts, one produced by a drafting committee of the full Commission and another adopted at the fifth session of the Commission, which took place in May-June 1949, read: 'all individuals within its jurisdiction.' See Report of the Drafting Committe on International Bill of Rights to the Commission on Human Rights, 21 May 1948, E/CN.4/95 at 16, Report of the Third Session of the Commission on Human Rights, 28 June 1948, E/800 at 15; and Report of the Fifth Session of the Commission oil Human Rights to the Economic and Social Council, 1 January 1949, E/1371, also cited as E/CN.4/350, at 28. This is the formulation that was taken up by the drafters of the ECHR, but it was changed in the later drafts of the Covenant itself.
112. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction 1997, 36 ILM 1507 (1997), Article 5(2) of which reads: 'Each State Party undertakes to destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control, as soon as possible but not later than ten years after the entry into force of this Convention for that State Party.'
113. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 1993, 32 ILM 800 (1993), Article 1(2) of which reads: 'Each State Party undertakes to destroy chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.' A similar clause is contained in numerous other articles of this Convention.
114. The Rio Declaration on the Environment and Development, the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, A/CONE151/26 (Vol. I), Principle 2 of which reads: 'States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.'
115. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques 1977,16 ILM 88 (1977), Article IV of which reads: 'Each State Party to this Convention undertakes to take any measures it considers necessary in accordance with its constitutional processes to prohibit and prevent any activity in violation of the provisions of the Convention anywhere under its jurisdiction or control.'
116. This assumption has also been uncritically followed by some authors: See McGoldrick, supra n. 28
117. Pedersen, 'Territorial Jurisdiction in Article 1 of the European Convention on Human Rights', (2004) 73 Nordic Journal of International Law at 279
118. and Costa, 'L'Etat, le territoire et la Convention européenne des droits de l'homme,' in Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caffisch (The Hague: Martinus Nijhoff, 2007), at 179 ff.
119. It should be noted that one judge of the European Court - Judge Loucaides - has expressly adopted this position, both in academic work and in several dissenting opinions. See Loucaides, 'Determining the Extra-territorial Effect of the European Convention: Facts, Jurisprudence and the Banković Case', (2006) 4 European Human Rights Law Review at 391.
120. See, for example, Happold, supra n. 22.
121. See also Wilde, supra n. 67 at 514.
122. See in that regard the remarks of O'Boyle, supra n. 23 at 135.
123. See also Lawson, supra n. 32 at 114-5.
124. See for example, the Opinions of Judges Loucaides and Kovler in Ilascu, supra n. 62, and the Joint Dissenting Opinion of Judges Golcuklu and Pettiti in Loizidou (preliminary objections).
125. Loizidou v Turkey, Preliminary Objections, supra n. 52 at para. 62.
126. Loizidou v Turkey, Merits, supra n. 53 at para. 56.
127. Cyprus v Turkey, Application No. 25781/94, Commission Report of 4 June 1999, at para. 96.
128. Ibid. at paras 98-102.
129. Prosecutor v Duško Tadić, Appeals Chamber, Judgment, IT-94-1-A (1999).
130. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), Merits, Judgment, ICJ Reports 1986, 14.
131. See Milanović, 'State Responsibility for Genocide', (2006) 17 European Journal of International Law 553, at 576-81.
132. In the Appeals Chamber's own words: The Appeals Chamber does not subscribe to this interpretation [that two distinct tests were formulated by the ICJ in Nicaragua]. Admittedly, in paragraph 115 of the Nicaragua judgement, where "effective control" is mentioned, it is unclear whether the Court is propounding "effective control" as an alternative test to that of "dependence and control" set out earlier in paragraph 109, or is instead spelling out the requirements of the same test. The Appeals Chamber believes that the latter is the correct interpretation. In Nicaragua, in addition to the "agency" test (properlv construed, as shall be seen in the next paragraph, as being designed to ascertain whether or not an individual has the formal status of a State official), the Court propounded only the "effective control" test. This conclusion is supported by the evidently stringent application of the "effective control" test which the Court used in finding that the acts of the contras were not imputable to the United States. Tadić, supra n. 99 at para. 112.
133. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007 (Genocide judgment.).
134. Ibid. at paras 404-5.
135. Ibid. at paras 391-3.
136. Ibid. at paras 396-400.
137. ILC Commentaries to the Draft Articles, extract from the Report of the International Law Commission on the work of its Fifty-third session, at 105-7, available at: http://untreaty.un.org/ilc/texts/instruments/ english/commentaries/9.6.2001.pdf [last accessed 3 June 2008].
138. Tadić, supra n. 99 at para. 131.
139. Genocide judgment, supra n. 103 at para. 406.
140. Kenneth P. Yeager v Islamic Republic of Iran, 17 Iran-US Claims Tribunal Reports (1987) 92.
141. For more on Nicaragua and Tadić, see Cassese, 'The Nicaragua and Tadić Tests Revisited in Light of the ICJ Genocide Judgment in Bosnia', (2007) 18 European Journal of International Law 649: Spinedi, 'On the Non-Attribution of the Bosnian Serbs' Conduct to Serbiá', (2007) 5 Journal of International Criminal Justice at 829
142. Goldstone and Hamilton, 'Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia', (2008) 21 Leiden Journal of International Law 95, at 97-103
143. and de Hoogh, 'Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, the Tadić Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia', (2001) 72 British Year Book of international Law 255.
144. See Lawson, supra n. 32 at 86.
145. Armed Activities on the Territory of the Congo (Congo v Uganda), Judgment, 19 December 2005, at para 179.
146. Genocide judgment, supra n. 103 at paras 166-7.
147. Ibid. at paras 428-38.
148. Ibid. at paras 428-38.
149. Judgment, IACtHR Series C 4 (1988), at para. 172.
150. Human Rights Committee, General Comment No. 31, supra n. 9 at para. 8
151. See also Nowak, supra n. 27 at 37-41
152. and Buergenthal, 'To Respect and to Ensure: State Obligations and Permissible Derogations', in Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981) at 72-91.
153. Loizidou v Turkey Preliminary Objections, supra n. 52 at para. 62 (emphasis added). See also Banković, supra n. 1 at para. 65: '[T]he scope of Article 1, at issue in the present case, is determinative of the very scope of the Couracting Parties' positive obligations'
154. Al-Skeini, supra n. 2 at para. 64 in fine (per Lord Rodger): '[T]he alleged conduct of the British forces ... had no legal consequences under the Convention, unless there was that link and the deceased were within the jurisdiction of the United Kingdom at the time. For, only then would the United Kingdom have owed them any obligation in international law to secure their rights under article 2 of the Convention.'
155. Tadić, supra n. 99 at para. 128 (emphasis added).
156. Loizidou, Merits, supra n. 53 at para. 56.
157. See, for example, Concluding Observations of the Human Rights Committee regarding Israel, 18 August 1998, CCPR/C/79/Add.93 at para. 10.
158. Cassese, supra n. 111 at 658, n. 17 (emphasis in original).
159. Indeed, in Ilascu the Court actually does invoke the work of the ILC on state responsibility in relation to the question of continuing violations, see Ilascu, supra n. 62 at paras 320-1. It does not, however, mention the ILC's work in regard of any question of attribution.
160. See GAOR, 55th session, 41st Plenary Meeting, 26 October 2000, A/55/PV41 at 7.
161. See also Judge Guillaume's speech before the Sixth Committee, available at: http://www.icj-cij.org/presscom/index.php?pr=85&p1=6&p2= 1&search=%22tunisia%22&PHPSESSID= 95d378896721ed931bcd585cf6290445 [last accessed 6 June 2008].
162. Al-Skeini, supra n. 2 at paras 71-7 (per Lord Rodger), at paras 109 and 127 (per Lord Brown).
163. For an excellent discussion of Al-Skeini, see Thienel, 'The ECHR in Iraq, (2008) 6 Journal of International Criminal Justice 115.
164. For a rebuttal of the relevance of the espace juridique argument for the extraterritorial application of human rights treaties. see Wilde, 'The "Legal Space" or "Espace Juridique" of the European Convention on Human Rights: Is It Relevant to Extraterritorial State Action?', (2005) 10 European Human Rights Law Review at 115.
165. Al-Skeini, supra n. 2 at paras 81-4 (per Lord Rodger) and at para. 132 (per Lord Brown).
166. See also Dee Schutter, supra n. 67: And Cerone, 'Jurisdiction and Power: The Intersection of Human Rights Law and the Law of Non-International Armed Conflict in an Extraterritorial Context', (2007) 40 Israel Law Review at 72.
167. See Al-Skeini, supra n. 2 at para. 64 (per Lord Rodger): 'It is important therefore to recognise that, when considering the question of jurisdiction under the Convention, the focus has shifted to the victim or, more precisely, to the link between the victim and the contracting state.'
168. See, for example, Prosecutor v Tadicć, Trial Chamber, Judgment, IT-94-1-T (1997), at para. 580.
169. Prosecutor v Sefer Halilović, Appeals Chamber, Judgment, IT-01-48-A (2007), at para. 59.
170. See, in that regard, the Dissenting Opinion of Judge Loucaides in Ilascu, supra n. 62.