Revisiting extraterritorial jurisdiction: A territorial justification for extraterritorial jurisdiction under the European convention

European Journal of International Law

Volumn 20, Issue 4, 2009, Pages 1223-1246

  Miller, Sarah ^a  

^a HARVARD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 77952560274     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp078     Document Type: Article

References (45)

1. Art. 1, European Convention on Human Rights (hereafter ECHR), ETS no. 005.
2. Faced with the question whether the Convention applied to British military actions in Basra and whether Britain might therefore be liable under the Convention for the deaths of Iraqi citizens killed in cross-fire, England's House of Lords held in Al-Skeini and Others v. Secretary of State for Defence [2007] UKHL 26 that there was no jurisdiction because Britain lacked sufficient control over the region at the relevant time. However, it also held that Britain was responsible for the death of an Iraqi citizen killed while in British military custody in a Britishrun prison in Basra. The case was tentative and highly factspecific; the degree to which signatory states must incorporate Convention rights into their extraterritorial exploits remains an open question.
3. Dutheillet de Lamothe, 'Extraordinary Renditions: A European Perspective', Speech at Cardozo School of Law, 25 Sept. 2006, available at: hwww.venice.coe.int/docs/2006/CDL(2006)077-e.asp (last accessed 14 Dec. 2008) (summarizing the Venice Commission's report on renditions, Opinion no. 363/2005, CDL-AD(2006)009, available at: www.venice.coe.int/docs/2006/CDL-AD(2006)009e.asp, and emphasizing the importance of international legal norms).
4. see also Hakimi, 'Current Development: The Council of Europe Addresses CIA Rendition and Detention Program', 101 AJIL (2007) 442
5. Art. 2 protects the right to life. Art. 10 protects freedom of expression. Art. 13 mandates that anyone whose rights under the Convention are violated must have an effective remedy even for acts undertaken by state officials.
6. App. No. 52207/99, Banković v. Belgium, Grand Chamber, 12 Dec. 2001, 44 EHRR (2001) SE5, at paras 31-53.
7. In this regard, Banković, supra note 6, essentially reaffirmed and refined the categories of exceptions first set out in Loizidou v. Turkey: App. No. 15318/89.
8. Loizidou v. Turkey (Preliminary Objections), 23 Mar. 1995, 20 EHRR (1995) 99, at para. 62.
9. ('[h]owever, the Court notes that liability is incurred in such cases by an action of the respondent State concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a State's competence or jurisdiction abroad')
10. Al-Skeini, supra note 2, at para. 109 (judgment of Lord Brown). The case in question was Drodz and Janousek v. France and Spain, discussed infra at the text to note 62.
11. Banković, supra note 6, at para. 80, arguably narrowed the 'effective control' exception further by distinguishing between the exercise of 'effective control' of territory within the espace juridique of the Convention versus territory outside it, and suggested that in the latter case the Convention might not impose responsibility for guaranteeing rights which residents of the occupied state had not enjoyed previously.
12. App. No. 31821/96, Issa v. Turkey [2004] ECHR 31821/96, 16 Nov. 2004, at paras 74-75.
13. App. No. 46221/99, Öcalan v Turkey (Grand Chamber) [2005] ECHR 46221/99, 12 May 2005, at paras 13-60.
14. Roxstrom, Gibney, and Einarsen, 'The NATO Bombing Case (Banković et al. v. Belgium et al.) and the Limits of Western Human Rights Protection', 23 Boston U Int'l LJ (2005) 55, at 89-91.
15. Byron, 'A Blurring of the Boundaries: The Application of International Humanitarian Law by Human Rights Bodies', 47 Va J Int'l L (2007) 839, at 891-895
16. see also Abdel-Monem, 'How Far Do the Lawless Areas of Europe Extend? Extraterritorial Application of the European Convention on Human Rights', 14 J Transnat'l L & Policy (2005) 159, at 196-197
17. ('[a]s to the "ordinary meaning" of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial') and App. No. 45036/98, Bosphorus v. Ireland, Grand Chamber, 30 June 2005, 42 EHRR (2005) 1, at para. 1 ('[t]he notion of "jurisdiction" reflects the term's meaning in public international law. .. so that a State's jurisdictional competence is considered primarily territorial (Banković), a jurisdiction presumed to be exercised throughout the State's territory').
18. See, e.g., Kavaldjieva, 'Jurisdiction of the European Court of Human Rights: Exorbitance in Reverse?: Can, and Should, an Iraqi Victim of Human Rights Abuses Inflicted by U.K. Troops Have a Remedy in U.K. Courts Under the European Convention of Human Rights?', 37 Georgia J Int'l L (2006) 507.
19. Milanović, 'From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties' (draft article) (later published in 8 Human Rts L Rev (2008) but the page references are to the draft), at 7-17
20. ('[o]f course, the reason for my belabouring the obvious is that the European Court in Banković simply assumed that the notion of "jurisdiction" in Article 1 of the ECHR is the same as that concept of jurisdiction which determines when a state may apply rules of its domestic law, and relied on that assumption to restrict the extraterritorial application of the ECHR to exceptional circumstances only. Indeed, all of Banković rests on that one, colossal non sequitur').
21. Lawson, 'Life After Banković: On the Extraterritorial Application of the European Convention on Human Rights', in F. Coomans and M.T. Kamminga (eds), Extraterritorial Application of Human Rights Treaties (2004), at 86.
22. Wilde subdivides this theory into cases of state control over 'spatial objects' - particular swaths of territory, whether a single prison or an entire country - or cases involving state control over persons. Though Wilde claims that this distinction helps to illustrate the purpose of state action and thus facilitates assessments of its legitimacy, he ultimately reverts to the general notion that jurisdiction in either case depends on the state's capacity to control the territory or individual, and his theory is thus treated as a variant on Lawson's broad premise rather than a discrete alternative: Wilde, 'Legal "Black Hole"? Extraterritorial State Action and International Treaty Law on Civil and Political Rights', 26 Mich J Int'l L (2005) 739, at 770-772, 793-797, and 805.
23. Kamchibekova, 'State Responsibility for Extraterritorial Human Rights Violations', 13 Buffalo Human Rts L Rev (2007) 87 (applying Wilde's approach)
24. See, e.g., Cerone, 'Out of Bounds? Considering the Reach of International Human Rights Law', New York University Center for Human Rights and Global Justice Working Paper # 5 (2006), available at: www.chrgj.org/publications/wp.html (last accessed 10 Dec. 2008), at 32-33 ('[i]n particular, it may be that negative obligations apply whenever a state acts extraterritorially (at least with respect to intentional human rights violations, as opposed to indirect consequences), but that the degree of positive obligations will be dependent upon the type and degree of control (or power or authority) exercised by the state.').
25. (arguing that the universal nature of human rights warrants their universal application even by a regional body such as the ECHR)
26. DeSchutter, 'Globalization and Jurisdiction: Lessons from the European Convention on Human Rights', New York University Center for Human Rights and Global Justice Working Paper # 9 (2005), at 36-37, available at: www.chrgj.org/publications/wp.html (last accessed 10 Dec. 2008) (concluding that the future of human rights protection arguably demands that the ECHR take a more expansive approach to extraterritorial jurisdiction in order effectively to guarantee human rights).
27. (noting in particular the long-standing importance attached to the Soering decision: App No 14038/88, Soering v. United Kingdom, 11 EHRR (1989) 439).
28. ('[t]he Court would emphasise that it is not called upon at the preliminary objections stage of its procedure to examine whether Turkey is actually responsible under the Convention for the acts which form the basis of the applicant's complaints... The Court's enquiry is limited to determining whether the matters complained of by the applicant are capable of falling within the "jurisdiction" of Turkey even though they occur outside her national territory').
29. O'Boyle, 'The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on "Life After Banković,"', in Coomans and Kamminga, supra note 32, at 125-139
30. The question whether the test for 'effective control' is the same within the espace juridique and without is still somewhat open; Banković, supra note 6, suggested that in cases of 'effective control' of territory outside the espace juridique of the Convention, applicants might need to make a further showing that the signatory state, in its exercise of 'effective control', deprived applicants of a right they had previously enjoyed and were entitled to under their prior legal systems, although subsequent cases have arguably softened this requirement
31. Cyprus v. Turkey, 2 DR (1975) 125, at para. 8.
32. See, e.g., App. No. 17392/90, W.M. v. Denmark, Commission, 14 Oct. 1992, not yet reported ('[a]uthorized agents of a State. .. bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property. In so far as they affect such persons or property by their acts or omissions, the responsibility of the State is engaged').
33. suggests the possibility that overall effective control of the territory may be sufficient to trigger state responsibility under the Convention even if there is no proof that the state 'actually exercises detailed control over the policies and actions of the authorities in the area situated outside its national territory'. On the facts of Issa, however, the Court found insufficient evidence either that Turkey exercised effective control over the region in Iraq where the shepherds were located, or that the Turkish armed forces were responsible for the shepherds' deaths. The English House of Lords considered this issue in Al-Skeini, supra note 2, and concluded that the language in Issa provided an insufficient foundation for assuming that the Court would extend jurisdiction in cases where state agents did not possess custody or direct control over an individual whose rights were then violated.
34. This premise is specifically enshrined in the Vienna Convention on Diplomatic Relations, in Art. 3(1) ('[t]he functions of a diplomatic mission consist, inter alia, in. .. (b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law.. .').
35. App. No. 1611/62, X v. Germany, 25 Sept 1965, 8 Yrbk ECHR, at 168.
36. App. No. 7547/76, X. v. United Kingdom, ECommHR, 15 Dec. 1977, 12 DR (1977) 73.
37. App. No. 6231/73, Ilse Hess v. United Kingdom, ECommHR, 28 May 1975, 2 DR 72.
38. App. No. 12747/87, Drozd and Janousek v. France and Spain, ECommHR, 26 June 1992, 14 EHRR (1992) 445.
39. ('[t]he term "jurisdiction" is not limited to the national territory of the High Contracting Parties; their responsibility can be involved because of acts of their authorities producing effects outside their own territory (see the Commission's decisions on the admissibility of Applications no. 1611/62, X v. the Federal Republic of Germany, 25 September 1965, Yearbook, vol. 8, p. 158; no. 6231/73, Hess v. the United Kingdom, 28 May 1975, Decisions and Reports (DR) no. 2, p. 72; nos. 6780/74 and 6950/75, Cyprus v. Turkey, 26 May 1975, DR 2, p. 125; nos. 7289/75 and 7349/76, X and Y v. Switzerland, 14 July 1977, DR 9, p. 57; no. 9348/81, W. v. the United Kingdom, 28 February 1983, DR 32, p. 190)').
40. See, e.g., App. No. 37201/06, Saadi v. Italy, 28 Feb. 2008, not yet reported (holding that Italy could not expel the applicant to Tunisia consistently with its Art. 3 obligations where Tunisia's human rights record and its relatively unspecific assurances failed to offer sufficient certainty that Saadi would not be tortured on his return); App. No. 22414/93.
41. Chalal v. United Kingdom, 15 Nov. 1996, 23 EHRR (1996) 413 (holding that the UK could not expel the applicant to India consistently with its Art. 3 obligations even where India conveyed fairly specific assurances as to his humane treatment where India lacked sufficient control over regional security officials).
42. See Soering v. United Kingdom, supra note 45, at para. 86. In Soering, the applicant, who was accused of conspiring with his American girlfriend in the killing of her parents, successfully argued that Britain could not extradite him to the US without violating Arts 2 and 3 of the Convention, since US authorities were unwilling to guarantee that Soering would not face the death penalty and the ECtHR further concluded that the 'death row phenomenon' would constitute cruel, inhuman, and degrading treatment contrary to Art. 3.
43. App. No. 11755/85, Stocké v. Germany, 11 EHRR (1989) 46, at paras 158-166.
44. Specifically, the Commission framed its Art. 1 analysis by noting that 'the lawfulness of the applicant's deprivation of liberty must also be established in the light of the events resulting in this act, namely the alleged activities of German authorities before the arrest of the applicant who was resident in France': at para. 166.
45. App. No. 28780/95, Illich Sanchez Ramirez v. France, ECommHr, decision of 24 June 1996, DR 86, at 155-162.