Extra Territorial Notes

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:

1. The territorial approach;

2. The ‘exceptional’ nature of extra-territorial jurisdiction;

3. The apparent inability for rights to be ‘divided and tailored’;

4. Apparent regional nature of extra-territorial jurisdiction, with espace jurisdique.

1. 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.

2. The ‘exceptional’ nature of extra-territorial jurisdiction:

• Somewhat justifiable in the court’s reluctance to...

Buy the full version of these notes or essay plans and more in our European Human Rights Law Notes.