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The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to

  • SAMANTHA BESSON
Abstract

The extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresponding duties to those individuals. Examples of extraterritoriality abound in international human rights practice, and in particular in the European Court of Human Rights’ case law. Except for vague and often misleading gestures to the universality of human rights, which allegedly requires their extraterritorial application, however, many of the normative considerations underlying the extraterritorial applicability of human rights have not been broached in the human rights law literature. Nor, conversely, have human rights theorists, even among those who take the supply side of human rights seriously, devoted much attention to the threshold criteria for the abstract recognition of human rights and the trigger of the corresponding duties. To remedy some of those shortcomings, this article endeavours to bring some normative human rights theorizing to bear on the European Court of Human Rights’ recent practice on extraterritoriality. More specifically, the article delves deeper into the notion of ‘jurisdiction’ qua threshold criterion for the applicability of the European Convention on Human Rights both within and outside its states parties’ territories; distinguishes it from related notions such as authority, coercion, power, or control; and explains its normative consequences.

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1 Loizidou v. Turkey, Judgment of 18 December 1996, [1996] ECHR (Rep. 1996–VI).

2 Al-Saadoon v. United Kingdom, Judgment of 2 March 2010, [2010] ECHR (Appl. No. 61498/08); Al-Skeini v. United Kingdom, Judgment of 7 July 2011, [2011] ECHR (Appl. No. 55721/07).

3 Medvedyev v. France, Judgment of 29 March 2010, [2010] ECHR (Appl. No. 3394/03).

4 Hirsi Jamaa and Others v. Italy, Judgment of 23 February 2012, [2012] ECHR (Appl. No. 27765/09).

5 Banković v. Belgium and Others, Decision of 12 December 2001, [2001] ECHR (Rep. 2001–XII).

6 See, e.g., M. Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (2011), at 55–7, 106; Lawson, R., ‘Really out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict under the ECHR’, in Buyse, A. (ed.), Margins of Conflict: The ECHR and Transitions to and from Armed Conflict (2011), 57 at 75.

7 See, e.g., H. Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy (1996), at 166 ff.; J. Nickel, Making Sense of Human Rights (2007), at 38 ff.; C.R. Beitz, The Idea of Human Rights (2009), at 109 ff.

8 See, however, Gardbaum, S., ‘Human Rights as International Constitutional Rights’, (2008) 19 EJIL 749, at 764–5.

9 See, e.g., Nickel, supra note 7, at 38 ff.; Tasioulas, J., ‘The Moral Reality of Human Rights’, in Pogge, T. (ed.), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (2007), 75. Cf. O'Neill, O., ‘The Dark Side of Human Rights’, (2005) 81 Int. Aff. 427.

10 See, e.g., Milanovic, supra note 6, at 8; Lawson, supra note 6, at 75; Cleveland, S., ‘Embedded International Law and the Constitution Abroad’, (2010) 110 Columbia Law Review 231.

11 See, e.g., Al-Skeini, supra note 2, Concurring Opinion of Judge Bonello, paras. 11–12.

12 See, e.g., Neuman, G., ‘The Extraterritorial Constitution after Boumediene v. Bush’, (2009) 82 Southern California Law Review 259, at 269–70, regarding explanations about restricting the territorial scope of constitutional rights (presumably, however, there is more at stake here than a question of foreseeability of duties incurred by the recognition of human rights with extraterritorial application); or Milanovic, supra note 6, at 219–22, regarding the contrast between universality and effectiveness (presumably, however, a right cannot be said to be universal if it cannot be effectively protected through corresponding duties). See also McGoldrick, D., ‘The Extraterritorial Application of the International Covenant on Civil and Political Rights’, in Coomans, F. and Kamminga, M. (eds.), Extraterritorial Application of Human Rights Treaties (2004), at 41. For the same opinion, see M. O'Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life after Banković”’, in Coomans and Kamminga, supra 125 at 136.

13 See for this critique: Milanovic, M., ‘Al-Skeini and Al-Jedda in Strasbourg’, (2012) 23 (1)EJIL 121; Lawson, supra note 6, at 63 ff. Of course, it is quite remarkable that the Court decided to overrule part of its Banković (supra note 5) precedent in Al-Skeini (supra note 2), albeit without recognizing that it was doing so: for instance, it has now abandoned the espace juridique européen requirement, but also the prohibition of ‘tailoring and dividing’ human rights.

14 See also Lopez Burgos v. Uruguay, Communication No. 52/1979, Views of 29 July 1981, UN Doc. CCPR/C/13/D/52/1979, paras. 12.2 and 12.3 on this very notion of ‘relationship between the individual and the State’.

15 See also Costa, J. P., ‘Qui relève de la jurisdiction de quel(s) Etats au sens de l'article 1er de la Convention européenne des droits de l'homme?’, in Condorelli, L. (ed.), Libertés, justice, tolérance; Mélanges en hommage au doyen Gérard Cohen-Jonathan (2004), 483 at 500, who regards jurisdiction as the cornerstone or pierre angulaire of the Convention. See also O'Boyle, supra note 12, at 125.

16 See on the overpoliticized nature of the case law, however: Milanovic, supra note 6, at 4; R. Lawson, ‘Life after Banković: On the Extraterritorial Application of the European Convention of Human Rights’, in Coomans and Kamminga, supra note 12, 83 at 115–16; McGoldrick, supra note 12, at 71; Lawson, supra note 6, at 75. For the same opinion, see O'Boyle, supra note 12, at 136.

17 For a detailed review, see, e.g., Lawson, supra note 6; Milanovic, supra note 6.

18 See also Milanovic, supra note 6, at 4.

19 For a similar argument, see Milanovic, supra note 6, at 4; O. Schutter, De, ‘Globalization and Jurisdiction: Lessons from the European Convention on Human Rights’, (2006) 6 Baltic Yearbook of International Law 183, at 192.

20 On the extraterritoriality of international human rights law outside the ECHR, see, e.g., Meron, T., ‘Extraterritoriality of Human Rights Treaties’, (1995) 89 AJIL 78; Shany, Y. and Ben-Naftali, O., ‘Living in Denial: The Application of Human Rights in the Occupied Territories’, (2003–4) 37 (1)Israel Law Review 17; Wilde, R., ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’, (2007) 40 (2)Israel Law Review 503; Wilde, R., ‘Compliance with human rights norms extraterritorially: “human rights imperialism”?’, in de Chazournes, L. Boisson and Kohen, M. (eds.), Le droit international et la quête de sa mise en oeuvre. Liber Amicorum Vera Gowlland-Debbas (2010), at 319; M. Scheinin, ‘Extraterritorial Effect of the International Covenant on Civil and Political Rights’, in Coomans and Kamminga, supra note 12 at 73; McGoldrick, supra note 12; M. Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of Human Rights Treaties (2009); Goodwin-Gill, G., ‘The Extraterritorial Reach of Human Rights Obligations: A Brief Perspective on the Link to Jurisdiction’, in de Chazournes, L. Boisson and Kohen, M. (eds.), Le droit international et la quête de sa mise en oeuvre; Liber Amicorum Vera Gowlland-Debbas (2010), at 293; G. Grisel, Application extraterritoriale du droit international des droits de l'homme (2010); Milanovic, supra note 6, at 34–9 and 11 ff.; Hampson, F., ‘The Scope of the Extraterritorial Applicability of International Human Rights Law’, in Gilbert, G., Hampson, F., and Sandoval, C. (eds.), The Delivery of Human Rights: Essays in Honour of Professor Sir Nigel Rodley (2011), at 157. See, e.g., Art. 2 International Covenant on Civil and Political Rights, which states that ‘[e]ach State Party . . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’ (emphasis added).

21 Interestingly, there is still some uncertainty about the extraterritorial applicability of the UN Covenant on Economic, Social and Cultural Rights that does not have a jurisdiction clause: on this issue, see the essays in Coomans and Kamminga, supra note 12. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, paras. 102–113; and the 2011 Maastricht Principles on the Extraterritorial Obligations of States in the area of ESC Rights (hereafter ‘ETO Principles’), available online at www.icj.org/dwn/database/Maastricht%20ETO%20Principles%20-%20Final%20Version%2017.10.2011.pdf, and especially Art. 9: ‘A State has obligations to respect, protect and fulfill economic, social and cultural rights in any of the following: a) situations over which it exercises authority or effective control, whether or not such control is exercised in accordance with international law; b) situations over which State acts or omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether within or outside its territory; c) situations in which the State, acting separately or jointly, whether through its executive, legislative or judicial branches, is in a position to exercise decisive influence or to take measures to realize economic, social and cultural rights extraterritorially, in accordance with international law’ (emphasis added).

22 Contrast, e.g., the ECtHR's Al-Skeini, supra note 2, with the US Supreme Court's Boumediene v. Bush, (2008) 128 S. Ct. 2229, or the ECtHR's Hirsi, supra note 4, with the US Supreme Court's Sale v. Haitian Centers Council, (1993) 113 S. Ct. 2549. For a comparison of the evolutions of the two practices, see Cleveland, supra note 10.

23 See Milanovic, supra note 6, at 118 ff., for the term ‘jurisdiction model’.

24 See Al-Skeini, supra note 2, para. 130: ‘The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.’ See also Milanovic, supra note 6, at 7–9. It is important therefore to clearly delineate the extraterritorial application of the ECHR from its so-called ‘boomerang effect’ (in French: effet ricochet) as exemplified in extradition cases (e.g., Soering v. United Kingdom, Judgment of 7 July 1989, [1989] ECHR (Ser. A. 161); Chahal v. United Kingdom, Judgment of 15 November 1996, [1996] ECHR (Rep. 1996-V); Al-Saadoon, supra note 2; Hirsi, supra note 4): in those decisions, what constituted a violation of the ECHR on a given state party's territory, and therefore under its jurisdiction, was the state party's decision that pertained to people situated on its territory, where its jurisdiction was presumed, but that implied sending them away to another state, and outside the state party's jurisdiction, where they would suffer potential violations of their human rights. Of course, in practice, many cases discussed in this article combine elements of extraterritoriality and boomerang effect: see, e.g., Al-Saadoon, supra note 2; and Hirsi, supra note 4.

25 See Banković, supra note 5; Al-Skeini, supra note 2; and Hirsi, supra note 4.

26 See Al-Skeini, supra note 2, para. 130.

27 See, on the second practical dimension of jurisdiction for human rights, L. Wildhaber, Speech given on the occasion of the opening of the judicial year, Strasbourg, 31 January 2002, (2002) Annual Report of the European Court of Human Rights 20, at 23–4: ‘We do have to realise that the Convention was never intended to cure all the planet's ills and indeed cannot effectively do so . . . When applying the Convention, we must not lose sight of the practical effect that can be given to those rights.’

28 This is why, as explained below, the functional approach to jurisdiction is not a third approach besides personal jurisdiction and territorial jurisdiction, but the correct understanding of jurisdiction of which personal and territorial jurisdictions are specific instances.

29 This parallel development between the personal and the territorial scopes of jurisdiction corresponds to the mutual relationship between citizenship and human rights in a democracy. I will come back to the democratic dimension of the ECHR and of jurisdiction qua threshold criterion for the application of human rights later in the article.

30 See, e.g., Neuman, supra note 12, at 269–70.

31 See, e.g., Lawson, supra note 16, at 88 ff.

32 See, e.g., S. Besson, ‘Human Rights and Democracy in a Global Context – Decoupling and Recoupling’, (2011) 4(1) Ethics and Global Politics 19, by reference to H. Arendt, ‘The Decline of the Nation-State and the End of the Rights of Man’, in The Origins of Totalitarianism (1951), 147. For an explicit reference to Arendt's ‘right to have rights’ in the extraterritoriality context, see Judge Pinto's Concurring Opinion in Hirsi, supra note 4.

33 See, e.g., R. Dworkin, Justice for Hedgehogs (2011), 327 ff.; Besson, supra note 32.

34 See, e.g., Gardbaum, supra note 8, at 764–5; Besson, supra note 32. On the productive tension between international human rights and domestic citizens’ rights, see also J. Habermas, Zur Verfassung Europas; Ein Essay, (2011), at 31–2 and 36–8; S. Benhabib, Dignity in Adversity; Human Rights in Troubled Times, (2011), at 16 and 126.

35 Compare the US Supreme Court's decisions in Boumediene (supra note 22) or Sale (supra note 22) with the ECtHR's decisions in Al-Skeini or Hirsi. US case law lags behind that of the ECtHR in two respects: it still focuses on nationality instead of residence when recognizing constitutional rights within US borders, and it has only recently abandoned the test of territorial jurisdiction for functional jurisdiction outside US borders, even though it seems to want to limit its consequences by restricting it to nationals abroad only (see Attorney General Eric Horder's speech available online at www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html). More generally, this is also why it is artificial to compare both courts’ practice on the issue of extraterritoriality (e.g., Cleveland, supra note 10): here, it is not only the international versus domestic nature of the courts that lies in the way of the comparison, but the differences in the function of the international versus domestic human rights regimes they are applying. Of course, the difference between the two bodies of human rights law is greater if one compares the US Supreme Court with the ECtHR than it would be if we compared the Court with other domestic constitutional courts, especially from within the Council of Europe, due to the greater intermingling between international and domestic human rights sources in Europe.

36 Cf. Milanovic, supra note 6, at 76–83; Lawson, supra note 6, at 75–6. This is also why the opposition between, on the one hand, so-called ‘political’ or ‘social compact’ approaches to jurisdiction and, on the other, so-called ‘universal’ ones is actually flawed.

37 See J. Raz, Ethics in the Public Domain; Essays in the Morality of Law and Politics (1995), at 215. Importantly, the reference to de facto authority here is not meant to be contrasted with de jure authority, but with justified or legitimate authority. It should not therefore be confused with the distinction that is made sometimes between de facto and de jure control in the ECtHR's case law (e.g., Hirsi, supra note 4, at 80–1). The latter distinction opposes the regular or lawful exercise of jurisdiction to the ultra vires exercise of jurisdiction, as explained below.

38 See Raz, supra note 37, at 212.

39 There is nothing in the notion of jurisdiction that prevents it from applying to other forms of non-state political authority, such as the European Union's, for instance, or other international organizations’. However, since, with the exception of the International Convention on the Rights of Persons with Disabilities, existing international human rights treaties currently only have states as parties, as is the case of the ECHR, I will restrict myself to states’ jurisdiction in this article.

40 Note that the implied prima facie circularity of the statement that jurisdiction is both a practical condition of human rights and one that is normatively required may be placated by reference to individuals’ collective natural duty of justice to create institutions that can protect human rights (see, e.g., Universal Declaration of Human Rights, Art. 28). On this question, see, e.g., A. Buchanan, Justice, Legitimacy and Self-Determination; Moral Foundations of International Law (2004), at 85–97.

41 See Besson, supra note 32; Shue, supra note 7; Nickel, supra note 7; Beitz, supra note 7.

42 See Besson, supra note 32; P. Gérard, L'esprit des droits; Philosophie des droits de l'homme (2007), at 202–8. See also, more generally, Moravcsik, A., ‘The origins of human rights regimes’, (2000) 54 Int. Org. 217.

43 See Issa v. Turkey, Judgment of 16 November 2004, [2004] ECHR (Appl. No. 31821/96), para. 71: ‘article 1 of the Convention cannot be interpreted so as to allow a State Party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory.’ See also, more specifically, Al-Skeini, supra note 2, para. 149: ‘the exercise of some of the public powers normally to be exercised by a sovereign government.’

44 See Milanovic, supra note 6, at 18–19.

45 See, e.g., the 2011 Admissibility Guide released by the ECtHR (www.echr.coe.int/ECHR/EN/Header/Case-Law/Case-law±analysis/Admissibility±guide) which discusses extraterritorial jurisdiction under the Court's competence ratione personae et loci. Note that in Al-Skeini, supra note 2, the Court decided to postpone the discussion of jurisdiction from the admissibility section to the merits.

46 See, e.g., Markovic v. Italy, Judgment of 14 December 2006, [2006] ECHR (Rep. 2006-XIV), para. 54.

47 For instance, in Boumediene, supra note 22, the US Supreme Court's jurisdiction pertained to the Court's jurisdiction on habeas corpus and not only to US state jurisdiction in Guantánamo, or only in a limited way to the extent that de facto sovereignty on Guantánamo was accepted: see Endicott, T., ‘Habeas Corpus and Guantánamo Bay: A View from Abroad’, (2010) 55 American Journal of Jurisprudence 1, at 36–9.

48 See, e.g., the 2011 Admissibility Guide, supra note 45.

49 See, e.g., Markovic, supra note 46, para. 54 (even when the facts of the case pending before domestic courts have taken place extraterritorially and there is no (extraterritorial) state jurisdiction on those facts; what matters indeed, when creating (territorial) state jurisdiction in this case, is the domestic courts’ jurisdiction).

50 See also O'Boyle, supra note 12, at 130 ff.; De Schutter, supra note 19, at 190; Milanovic, supra note 6, at 41–52. Of course, the term ‘responsibility’ is used here to refer to the secondary duties triggered by the violation of primary (human rights) duties and not to those primary duties in the first place.

51 See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment of 26 November 1984, [1984] ICJ Rep. 392, at 62 and 65.

52 See, e.g., Cleveland, supra note 10, at 233–4; De Schutter, supra note 19, at 244–5.

53 See, e.g., Al-Skeini, supra note 2, Concurring Opinion of Judge Bonello, paras. 11–12.

54 This is actually the case for many concepts in international law (e.g., nationality) that are internationally framed through some criteria (e.g., effectiveness in the case of nationality) but refer to a state-related and domestic-law reality only and one that, as a result, varies from state to state.

55 On state jurisdiction under international law, see Lowe, V., ‘Jurisdiction’, in Evans, M. (ed.), International Law (2006), 335; I. Brownlie, Principles of Public International Law (2008), 299.

56 See Ilascu v. Moldavia and Russia, Judgment of 8 July 2004, [2004] ECHR (Rep. 2004-VII). See also De Schutter, supra note 19, at 228. If international organizations acquire human rights duties under international human rights treaties and are submitted to the jurisdiction threshold as a result, the same issues may arise between the organization and the state. See for an instance of the latter: H. Aust, ‘Pirateriebekämpfung im Lichte von Grundgesetz und Völkerrecht auf dem verwaltungsgerichtlichen Prüfstand’, (2012) Deutsches Verwaltungsblatt 484.

57 See, e.g., for this critique: Milanovic, supra note 6, at 21–34, especially at 27; Cleveland, supra note 10, at 233; De Schutter, supra note 19, at 195 ff.

58 Banković, supra note 5, paras. 59–61.

59 See Milanovic, supra note 6, at 8: ‘Jurisdiction is the actual exercise of control and authority by a state, while title and sovereignty establish the state's right in international law to exercise such authority within a specific territory.’ See also Milanovic, supra note 6, at 53 and 61, however, who, because he does not want to conflate international-law jurisdiction with jurisdiction for the purposes of human rights, actually misses the domestic-law notion of state jurisdiction and artificially distinguishes jurisdiction qua effective power only (without normative dimension) and title to exercise jurisdiction.

60 See Hirsi, supra note 4, para. 80–81. The Court's reference to de facto control ought not be conflated with de facto authority, as explained supra note 37.

61 Interestingly, the ECtHR's case law does not approach the concept of jurisdiction as an autonomous ECHR concept like ‘proportionality’ or ‘degrading treatment’. There are many explanations for this. One of them is that the Convention is a human rights treaty whose applicability does not depend on reciprocity, unlike other international treaties. Another explanation is that the uniform application of the Convention is only a concern once it is applicable and once the threshold criterion has been reached.

62 See, e.g., Milanovic, supra note 6, and M. Milanovic, ‘Reply to Shany, Lowe and Papanicopolu – Review of Milanovic, M., Extraterritorial Application of Human Rights Treaties’, in EJIL-talk, 5 December 2011, available at www.ejiltalk.org/reply-to-shany-lowe-and-papanicolopulu; Milanovic, supra note 13. Among those critiques, one may mention the critique that the Court is confusing its criteria when it examines the existence of normative power after establishing personal effective control in Al-Skeini, whereas the Court has identified constitutive elements of jurisdiction whose existence it tests by reference to different criteria.

63 See Christiano, T., ‘Democratic Legitimacy and International Institutions’, in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law (2010), 119 at 130 ff.

64 See Al-Skeini, supra note 2, para. 134.

65 Note, for instance, ETO Principles, Art. 9, supra note 21, which refers to ‘authority or effective control’ (emphasis added).

66 See Schaefer, M., ‘Al-Skeini and the Elusive Parameters of Extraterritorial Jurisdiction’, (2011) 5 EHRLR 566, 579; Milanovic, supra note 13.

67 Note that I am leaving aside some minor decisions of the ECtHR (e.g., Issa, supra note 43; Isaak v. Turkey, Judgment of 24 June 2008, [2008] ECHR (Appl. No. 44587/98); Pad and Others v. Turkey, Judgment of 28 June 2007, [2007] ECHR (Appl. No. 60167/00)) that are generally considered as isolated by the literature (see, e.g., Lawson, supra note 6) and that have been (indirectly) disavowed by the Court in Al-Skeini. On precedents and the interpretive authority of ECtHR's decisions, see, e.g., Besson, S., ‘The Erga Omnes Effect of Judgments of the European Court of Human Rights – What's in a Name?’, in Besson, S. (ed.), The European Court of Human Rights after Protocol 14 (2011), 125.

68 See Loizidou, supra note 1, para. 62; Al-Skeini, supra note 2, paras. 133 ff. and 138. See also Judge Rozakis's Concurring Opinion in Al-Skeini.

69 See Loizidou, supra note 1, para. 62.

70 See Al-Skeini, supra note 2, para. 138.

71 See Banković, supra note 5, para. 71.

72 See ibid.: ‘In sum, the case law of the Court demonstrates that its recognition of the exercise of extraterritorial jurisdiction by a Contracting State is exceptional: it has 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, exercises all or some of the public powers normally to be exercised by that Government.’ See also ECtHR, Al-Skeini, supra note 2, para. 149.

73 See Banković, supra note 5, para. 71.

74 Ibid.

75 See Al-Skeini, supra note 2, para. 135.

76 See ibid., para. 149: ‘It can be seen, therefore, that following the removal from power of the Ba'ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.’

77 See UK Supreme Court, R (Al-Skeini and others) v. Secretary of State for Defence [2007] UKHL 26. Cf. Wilde, ‘Compliance’, supra note 20, at 338, whose only evidence, however, is that the Court did not apply the formal test of public authority to the facts. But this is only because it did not need to in the absence of the other constitutive elements of jurisdiction.

78 See in the same direction, Goodwin-Gill, supra note 20, at 300, 306. Contra: Milanovic, supra note 13, who sees this combination of the territorial and personal model as a problem. His difficulty, however, is that he does not see the public-power requirement as one of the three constitutive elements of jurisdiction in all models, but as an element of the criteria of jurisdiction in the territorial model.

79 Milanovic, supra note 6, at 8, 27, 32, 34 and 39–41.

80 See Al-Skeini, supra note 2, paras. 133 ff.; Hirsi, supra note 4, paras. 76–82.

81 Besides the normative dimension of the ‘all-subjected principle’, one should, of course, not forget the other two dimensions of effectiveness and interdependence. See Besson, supra note 32.

82 Cf., e.g., for this critique, Näsström, S., ‘The Challenge of the All-Affected Principle’, (2011) 50 (1)PS 116 with Erman, E., ‘Should All Political Contexts Be Democratic? Contours of a Two-Faced Theory of Legitimacy’, in Erman, E. and Näsström, S. (eds.), Political Equality beyond Borders (2012, forthcoming); Besson, supra note 32.

83 See also the 2011 ETO Principles, supra, note 21, and especially Art. 18: ‘A State in belligerent occupation or that otherwise exercises effective control over territory outside its national territory must respect, protect and fulfill the economic, social and cultural rights of persons within that territory. A State exercising effective control over persons outside its national territory must respect, protect and fulfill economic, social and cultural rights of those persons’ (emphasis added).

84 See Milanovic, supra note 6, at 118 ff.; Cleveland, supra note 10, at 229–30; De Schutter, supra note 19, at 203–5.

85 See Al-Skeini, supra note 2, para. 138: ‘Another exception to the principle that jurisdiction under Article 1 is limited to a State's own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State's own armed forces, or through a subordinate local administration (Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV, Banković, cited above, § 70; Ilaşcu, cited above, §§ 314–16; Loizidou (merits), cited above, § 52).’

86 See Milanovic, supra note 6, at 118–20 and 173 ff.

87 See Al-Skeini, supra note 2, para. 134: ‘First, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others.’ (emphasis added).

88 See ibid., para. 135: ‘Secondly, the Court has recognized the exercise of extraterritorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government.’

89 See ibid., para. 136: ‘In addition, the Court's case-law demonstrates that, in certain circumstances, the use of force by a State's agents operating outside its territory may bring the individual thereby brought under the control of the State's authorities into the State's Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad . . . . The Court does not consider that jurisdiction in the above cases 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.’

90 For a similar point, see Judge Rozakis's Concurring Opinion in Al-Skeini, supra note 2.

91 See ibid., paras. 133 ff.

92 See in the US, by reference to Boumediene, supra note 22; Neuman, supra note 12, at 261 ff.; Cleveland, supra note 10, at 230. See also in the ECHR context, Al-Skeini, supra note 2, Concurring Opinion of Judge Bonello, paras. 11–12; Schaefer, supra note 66, at 581.

93 See Al-Skeini, supra note 2, para. 149 a contrario. See also Schaefer, supra note 66, at 579.

94 See Al-Skeini, supra note 2, para. 131: Jurisdiction is presumed to be exercised normally throughout the State's territory’ (emphasis added).

96 See also Judge Bratza's Dissenting Opinion in Ilascu, supra note 56.

97 See also Judge Bonello's Concurring Opinion in Al-Skeini, supra note 2, paras. 24–28; De Schutter, supra note 19, at 205.

98 By analogy to international occupation law: see Sassoli, M., ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’, (2005) 16 EJIL 661, at 676–8 and 693–4.

99 See Al-Skeini, supra note 2, para. 132: ‘In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts’ (emphasis added). See also para. 137: ‘It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State's military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56; Ilaşcu, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu, cited above, §§ 388–94).’

100 See, e.g., Tomuschat's Concurring Opinion in Lopez Burgos, supra note 14; De Schutter, supra note 19, at 244–5.

101 See Al-Skeini, supra note 2, paras. 131 and 137.

102 Cf. De Schutter, supra note 19, at 217; Lawson, supra note 16, at 120, and Lawson, supra note 6, at 72 ff, who conflates both things and sees jurisdiction as a matter of degree.

103 See, e.g., Al-Skeini, supra note 2, para. 137.

104 See, e.g., Nickel, J., ‘Rethinking Indivisibility: Towards a Theory of Supporting Relations between Human Rights’, (2008) 30 HRQ 984; Gilabert, P., ‘The Importance of Linkage Arguments for the Theory and Practice of Human Rights: A Response to James Nickel’, (2010) 32 HRQ 425; Nickel, J., ‘Indivisibility and Linkage Arguments: A Reply to Gilabert’, (2010) 32 HRQ 439.

105 See Wilde, ‘Compliance’, supra note 20, at 337.

106 See by analogy within the boundaries of a state's territory: Markovic, supra note 46, para. 53 (on the applicability of Art. 6 ECHR given that state jurisdiction is triggered by judicial proceedings).

107 See, e.g., Al-Skeini, supra note 2, para. 137: ‘It is clear that, 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” (compare Banković, cited above, § 75)’ (emphasis added).

108 See Shue, supra note 7.

109 See, e.g., Isaak, supra note 67; Andreou v. Turkey, Judgment of 27 October 2009, [2009] ECHR (Appl. No. 45653/99).

110 See, e.g., Osman v. United Kingdom, Judgment of 28 October 1998, [1998] ECHR (Rep. 1998-VIII), para. 116: ‘For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’ (emphasis added).

111 See, e.g., Milanovic, supra note 6, at 209 ff. Cf. Y. Shany, ‘Bad Cases Make Bad Law, but Good Law Books! – Review of Milanovic, M., Extraterritorial Application of Human Rights Treaties’, in EJIL-talk, 1 December 2011, available at www.ejiltalk.org/bad-cases-make-bad-law-but-good-law-books.

112 For this conflation, see e.g., Lawson, supra note 6, at 74–5.

113 See De Schutter, supra note 19, at 191. See, e.g., the ECtHR Grand Chamber's pending decision in Catan v. Moldova and Russia (Appl. No. 43370/04).

114 See, e.g., Brown, UK Supreme Court, Al-Skeini, supra note 77, para. 109.

115 See, e.g., Milanovic, supra note 6, at 83–96.

116 See for the best discussion to date, A. Buchanan, ‘Human Rights and the Legitimacy of the International Order’, (2008) 14 Legal Theory 39.

117 Banković, supra note 5, para. 80; Loizidou, supra note 1, para. 78. See also Milanovic, supra note 6, at 50–1 and 85–93.

118 Al-Skeini, supra note 2, para. 142. See also Milanovic, supra note 13.

119 See van de Heyning, C., ‘No Place like Home: Discretionary Space for the Domestic Protection of Fundamental Rights’, in Popelier, P., van de Heyning, C., and van Nuffel, P. (eds.), Human Rights Protection in the European Legal Order: Interaction between European Courts and National Courts (2011), 65.

120 See Hessler, K., ‘Resolving Interpretive Conflicts in International Human Rights Law’, (2005) 13 Journal of Political Philosophy 29.

121 See, e.g., Prosecutor v. Dusko Tadic, Judgment of 15 July 1999, Case No. IT-94–1-A; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 21. See also Milanovic, supra note 6, at 229 ff.

122 See Milanovic, supra note 13, s. 2.C.

123 See Sassoli, supra note 98, at 676–8 and 693–4, on the limits of human rights legislation by occupying forces.

124 See Whelan, F., ‘Prologue: Democratic Theory and the Boundary Problem’, in Pennock, R. and Chapman, J. (eds.), Liberal Democracy, Nomos XXV (1983), 13; Erman, supra note 82.

125 See Besson, supra note 67.

126 See, e.g., Boumediene, supra note 22. See also Neuman, supra note 12, at 274 ff.; Cleveland, supra note 10, at 270 ff.; Endicott, supra note 47, at 36–9; Milanovic, supra note 6, at 61–7 and 98–103.

127 See G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (2008); Besson, supra note 67.

128 See Wildhaber, supra note 27.

129 See S. Besson, A Legal Theory of Human Rights (2013), manuscript on file with the author, on the difference between human rights duties and responsibilities for human rights, and on the latter's relationship to the responsibility-to-protect doctrine.

* Professor of Public International Law and European Law, University of Fribourg and Fellow of the Wissenschaftskolleg zu Berlin (2011–12) []. Many thanks are due to Susan Karamanian, Harold Hongju Koh and Paul Schiff Berman, but also to Sir Nicolas Bratza, Jean-Paul Costa, Lech Garlicki, Christopher McCrudden, Michael O'Boyle, Françoise Tulkens, Nina Vajic, Derek Walton, and the other participants in the Joint United States Supreme Court and European Court of Human Rights Conference Judicial Process and the Protection of Rights: The US Supreme Court and the European Court of Human Rights at the George Washington Law School on 1 March 2012; to Armin von Bogdandy, Matthias Goldmann, Arthur Dyevre, Anja Seibert-Fohr, Nele Yang, and the other participants in the Max Planck Institute Lecture Series in Heidelberg on 21 March 2012; to Anna Bettina Kaiser, Helmut Aust, Christian Tomuschat, Nora Markard, and the other participants in the Law & Society Institute Seminar Series at the Humboldt Universität zu Berlin on 15 May 2012. Special thanks also to Tancrède Scherf for his research assistance, to Eleonor Kleber for her help with the editing and formatting of the article, to Pierre d'Argent for our discussions on the topic and his helpful comments, and to an anonymous reviewer for useful remarks and critiques.

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Leiden Journal of International Law
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