Extraterritoriality
Article 1 ECHR –
States shall secure the rights and freedoms outlined in the Convention to “everyone within
their jurisdiction.”
Competing views on the extra-territorial applicability of Convention rights relate to
the cases in which a State can be held responsible for securing human rights outside
of the State itself
What is the appropriate scope of extra-territorial application of the ECHR?
e.g., Lloyd Jones LJ in Al-Saadoon – “[T]he combined effect of the exceptional cases of
extra-territorial jurisdiction accepted by the Grand Chamber in Al-Skeini represents a
potentially massive expansion of the scope of application of the Convention, the full
implications of which remain to be worked out.”
Is this true? What is the appropriate scope of the extraterritorial application of the
Convention?
Arguably remains unclear.
1. Restrictive Approach:
Bankovic v UK – traditional view of jurisdiction.
Arising from the bombing of a TV and radio station in Belgrade, carried out
by NATO during the Balkans war.
The ECtHR was clear that the jurisdiction was a primarily territorial concept.
In doing so, the Court went back to basics and had regard to the
nature of the Convention as an international instrument.
It found that in general international law, jurisdiction was given a
territorial meaning and as such, in the Convention context,
jurisdiction was to be given the same meaning.
The Court also focused on the operation of the Convention generally.
This is seen most clearly in the Court’s ousting of the “cause and
effect” basis for jurisdiction; in other words, the idea that whenever a
violation or harm occurs, then by virtue of having caused it,
jurisdiction is made out.
The Court was very reluctant to accept this basis in order to protect
the proper functioning and operation of the Convention, in that
Article 1 ECHR presents jurisdiction as a separate hurdle for the
applicant to overcome in any case and if the Court endorsed such a
“cause and effect” approach, the presence of such a separate
requirement would be essentially redundant.
What is particularly interesting about this case is the Court’s failure to apply
its interpretive approach of the Convention being a “living instrument” in the
context of Article 1 and its specific reference to the travaux préparatoires of
the Convention.
The Court was evidently wary about the fact that the concept of
jurisdiction is determinative of the very scope of the Contracting
Parties’ obligations and as such the scope and reach of the entire
Convention system.
As such, the Court held that the Convention “was not designed to be
applied throughout the world” and would be extended to conduct
only occurring in other contracting states.
2. Problems with this Restrictive Approach:
First of all, the adoption of the same definition of jurisdiction in Article 1 ECHR as
in general international law is based on the false assumption that the Convention is
sufficiently comparable to any other international law instrument.
Article 1 ECHR –
States shall secure the rights and freedoms outlined in the Convention to “everyone within
their jurisdiction.”
Competing views on the extra-territorial applicability of Convention rights relate to
the cases in which a State can be held responsible for securing human rights outside
of the State itself
What is the appropriate scope of extra-territorial application of the ECHR?
e.g., Lloyd Jones LJ in Al-Saadoon – “[T]he combined effect of the exceptional cases of
extra-territorial jurisdiction accepted by the Grand Chamber in Al-Skeini represents a
potentially massive expansion of the scope of application of the Convention, the full
implications of which remain to be worked out.”
Is this true? What is the appropriate scope of the extraterritorial application of the
Convention?
Arguably remains unclear.
1. Restrictive Approach:
Bankovic v UK – traditional view of jurisdiction.
Arising from the bombing of a TV and radio station in Belgrade, carried out
by NATO during the Balkans war.
The ECtHR was clear that the jurisdiction was a primarily territorial concept.
In doing so, the Court went back to basics and had regard to the
nature of the Convention as an international instrument.
It found that in general international law, jurisdiction was given a
territorial meaning and as such, in the Convention context,
jurisdiction was to be given the same meaning.
The Court also focused on the operation of the Convention generally.
This is seen most clearly in the Court’s ousting of the “cause and
effect” basis for jurisdiction; in other words, the idea that whenever a
violation or harm occurs, then by virtue of having caused it,
jurisdiction is made out.
The Court was very reluctant to accept this basis in order to protect
the proper functioning and operation of the Convention, in that
Article 1 ECHR presents jurisdiction as a separate hurdle for the
applicant to overcome in any case and if the Court endorsed such a
“cause and effect” approach, the presence of such a separate
requirement would be essentially redundant.
What is particularly interesting about this case is the Court’s failure to apply
its interpretive approach of the Convention being a “living instrument” in the
context of Article 1 and its specific reference to the travaux préparatoires of
the Convention.
The Court was evidently wary about the fact that the concept of
jurisdiction is determinative of the very scope of the Contracting
Parties’ obligations and as such the scope and reach of the entire
Convention system.
As such, the Court held that the Convention “was not designed to be
applied throughout the world” and would be extended to conduct
only occurring in other contracting states.
2. Problems with this Restrictive Approach:
First of all, the adoption of the same definition of jurisdiction in Article 1 ECHR as
in general international law is based on the false assumption that the Convention is
sufficiently comparable to any other international law instrument.
