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Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction Under the European Convention
Abstract
European participation in controversial aspects of the ‘war on terror’ has transformed the question of the extraterritorial scope of the European Convention on Human Rights from abstract doctrine into a question with singularly pressing political and legal ramifications. Yet the European Court of Human Rights has failed clearly to articulate when and why signatory states’ extraterritorial actions can be brought within the jurisdiction of the European Convention. The Court has veered between a narrow view of extraterritorial jurisdiction confined to four fixed categories of cases and a broader view which contemplates extraterritorial jurisdiction when a signatory state effectively controls an individual's ability to exercise fundamental Convention rights. Scholars have favoured the latter, arguing that the universality of human rights demands an expansive concept of extraterritorial jurisdiction. This article proposes a different theory: existing categories of extraterritorial jurisdiction can best be understood as limited exceptions to the rule of territorial jurisdiction because they all require some significant connection between a signatory state's physical territory and the individual whose rights are implicated. Properly understood, extraterritorial jurisdiction under the European Convention is and should be limited to such situations to maintain a workable balance between the Convention's regional identity and its universalist aspirations.
... This means that measures that are taken under one state's sovereign powers to enforce its own migration policies are implemented and produce effects in a territory other than its own. It also means that there is no direct connection between the state's physical territory and the persons whose rights are implicated (Miller, 2009). The EU's externalization of border management typically entails an outsourcing or subcontracting of responsibilities to neighbour countries. ...
... When groups of affluent nations like the EU Member States unite to stifle unauthorized immigration into their jurisdictions, and manage to do so effectively, underprivileged neighbour countries are typically forced to host large numbers of clandestinos who are blocked from entering the EU and have "nowhere else to go". That is, measures that are taken by the EU to enforce its own migration policies are implemented and produce effects in a territory other than its own, and there is no direct connection between the EU's physical territory and the persons whose rights are implicated (Miller, 2009). In cases of extra-territorial migration governance, migrants' chances of influencing the authority that exercises power over them are even weaker than under ordinary border and admission control. ...
Can state sovereignty justify privileged receiving countries exercising authority over non‐members in a third country to safeguard their own interests? Under the current migration governance of the EU, state sovereignty is manifested in migrant interdiction, interception and detention policies employed to prevent unauthorized migrants from reaching the EU, and even from attempting to embark on cross‐Mediterranean journeys. While reinforcement of the Schengen region's external borders is a key aim of the EU's internal migration politics, collaboration with third countries regarding migration control has, in the last decade, become a key feature of its external migration policy. In close collaboration with third countries, the EU has managed to curb the outflux of migrants from transit and sending countries. In effect, irregular migrants are prevented from exiting as well as from entering. This article explores the justifiability of such practices, by questioning commonly invoked models of justification such as the sovereignty “model”, with a special focus on partnership agreements regarding migration control between the EU and Libya.
... Miller 2010Miller , p.1246.14 Miller 2010Miller , p.1246 Bankovic andOthers v. Belgium and Others, §61.16 Wilde 2010, p.110; Rooney 2015, p. 408; Milanovic 2011, pp.119-228. 17 Loizidou v. Turkey, application no. ...
... Miller 2010Miller , p.1246.14 Miller 2010Miller , p.1246 Bankovic andOthers v. Belgium and Others, §61.16 Wilde 2010, p.110; Rooney 2015, p. 408; Milanovic 2011, pp.119-228. 17 Loizidou v. Turkey, application no. ...
It is becoming more and more apparent that territorial sovereignty, this consecrated organising principle of the international system, is not a useful concept to understand international politics. How do international tribunals generate solutions to current problems with such inadequate tools then? The chapter explores this question by focusing on how the European Court of Human Rights (ECtHR) has approached extraterritorially-committed violations of human rights. The ECtHR has been wary of extending the application of the European Convention of Human Rights (the Convention, ECHR) beyond the territories of European countries. For this purpose, it has devised criteria of varying strictness for establishing extraterritorial jurisdiction. Among these, the one adopted in Jaloud v. the Netherlands appears to be the product of judicial innovation, and perhaps the most fitting approach to meet the needs of the current international system. This chapter draws from the logic employed in this case and proposes the concept of ‘functional boundaries,’ to understand the ECtHR’s most recent jurisdictional test. The concept of functional boundaries rests on an evaluation of the extent and coverage of public functions as demarcation lines of jurisdiction and promises to help us better navigate in the current international order.
... However, despite a scholarly agreement on the need to develop a clear theory of jurisdiction, the ECtHR has generally failed to provide a comprehensive model throughout its jurisprudence, and its case law over the topic has been quite contradictory. 1 At times, the Court has seemed to embrace a relational paradigm but, at others, jurisdiction appears to be triggered by mechanisms resembling those happening in a state's own territory (Altiparmak 2004;Miller 2009;Shany 2013, 54-56). The reason for this confusion is rooted in the sensitivity of the topic. ...
... There will be extensive legislative and regulatory changes needed for Iraq's intellectual property, investment, and arbitration systems because the country is a civil law country. Without a defined set of current rules and regulations, the courts will be forced to rely on limited or inconsistent remedies to fill in the gaps in the law (Miller, 2009). To set the stage, the Iraqi Higher Judicial Council (HJC) declared in 2009 that it would begin teaching Iraqi judges on current commercial law themes to ease the worries of foreign firms as investors. ...
In light of the Iraqi Supreme Judicial Council No. (74) for the year 2000 and its influence on the economic and commercial side, this study attempts to illustrate the viability of founding the Iraqi Commercial Court. It is the whole seed. The goal is to make commercial conflicts more swiftly and efficiently resolved through establishing an expert commercial judiciary. Specialized judges with high expertise and knowledge help ensure that court judgments are successful in both processes and causes. In light of the statement published by the Supreme Judicial Council No. (74) for the year 2020, the research focuses on the efficacy of the Iraqi commercial Court in addressing commercial disputes. This article reveals that the Iraqi legislative attempts to attract international investment and the Iraqi executive branch's continued efforts to resolve investor concerns by modifying the Investment Law. The Iraqi court has successfully developed a stable legal environment for multinational firms. Commercial courts, acknowledged as fair by international businesses, were established to accomplish this. As a result of Iraq's communist past, foreign investment was viewed as a source of skepticism and mistrust for many years. These courts will undoubtedly play a significant role in advancing Iraq's progress. However, courts alone will not provide the long-term guarantees needed to transform Iraq's legal framework for domestic and foreign businesses to operate inside. Civil law countries like Iraq necessitate significant reforms to the country's intellectual property, investment, and arbitration regimes.
... One of the principle discussions in the applicability of human rights during armed conflict has been whether human rights obligations are applicable extra-territorially (Coomans and Kamminga, 2004;Gillard, 2004;Messineo, 2009;Miller, 2010;O'Brien, 2010O'Brien, -2011. A state is, of course, obligated to uphold human rights in its own territory, for people locat ed in its territory, but the question has arisen as to whether a state is obligated to uphold human rights extra-territorially. ...
Atrocity crimes are often also referred to as mass human rights violations. Indeed, atrocity crimes are human rights violations, although analysis of the conduct involved under both labels is rare. Behavior that is categorized as atrocity crimes (war crimes, genocide, and crimes against humanity) overlaps with that which is categorized as human rights vi olations. This chapter examines the relationship between human rights and atrocity crimes, considering human rights as means of prevention of atrocities, the relationship of each category of atrocity crime with human rights, and the importance of the human rights law regime in times of atrocity. Overall, there is a need for more engagement with the human rights regime in the mass atrocity contexts, from prevention through to ac countability.
... Укратко, појединац се сусреће са проблемом којем суду даље да се обрати, у случајевима када не успе да пред националним судовима оствари заштиту. Другим речима, када појединац, услед непрецизности граница поља примене људских права, не може да процени да ли одређена национална мера улази у област примене људских права гарантованих Европском конвенцијом или поретком Европске уније, субјект не зна да ли је за пресуђивање о његовом захтеву у следећем степену надлежан Европски суд или Суд правде.160 Европске уније. ...
Питање степена усаглашености између судског система Европске уније и
судског система установљеног Европском конвенцијом о људским правима, као и питање избора најприкладнијег метода за изградњу ефикасног, усклађеног и целовитог система заштите људских права у Европи, поделила су у великој мери европску научну мисао и стручну јавност. Овом дисертацијом покушава се одговорити на дата питања и тиме осветлити један значајан сегмент неуређености у односима између различитих подсистема у оквиру међународног права, односно, према речима Комисије за међународно право, попунити део тзв. „црне правне рупе“. На тај начин, настоји се сузбити даљи развој европске фрагментације, која представља битан аспект проблематике фрагментације међународног права.
... While the permissive law may be used to indicate the application of extraterritorial jurisdiction, there are other aspects such as the universality of the offence in question where the domestic law is silent on its use (Miller, 2009). The question that arises is whether anti-money laundering is a universal crime. ...
Various steps have been taken in both East and Southern Africa to combat the vice of money laundering. Notable steps are evident in Kenya as the business hub for East Africa. The era of globalisation has without a doubt led to various advantages such as transnational modernisation, marketing of predominant consumerist values. While this has to a great extent destabilised customs and tradition, crime has continued to inform this process of destabilisation. This is against the backdrop that globalisation subsequently ushers in new and favourable contexts for crime through the ‘compression of time and the annihilation of space’. Some States have provided for extraterritorial jurisdiction of anti-money laundering offences as a holistic step towards mitigation of the vice. In the context of Kenya’s Anti-money laundering law and using a desktop research approach, this contribution evaluates the argument that extraterritorial jurisdiction provides a tool for mitigating the commission of a crime and the effects thereof. First, the author uses a literature review to make a case for extraterritorial jurisdiction and the pros and cons it presents. Secondly, a twofold engagement of the findings is done; an evaluation of the use of extraterritorial jurisdiction in some laws in Kenya and the position of the Proceeds of Crime and Anti-Money Laundering Act 9 of 2009 (Revised 2019). Thirdly, a conclusion followed by recommendations on the way forward is done.
... The ECtHR case-law dealing with the issue of extraterritorial application of the European Convention on Human Rights has been a subject of considerable debate among scholars (Da Costa, 2013:93-252;Goodwin-Gill, 2010:299-300;Gondek, 2005:356-376;Hampson, 2011:178-180;Hathaway, 2011:405-408;Have, 2018:110-113;Wilde, 2010:333-337;Miller, 2010Miller, :1225Miller, -1241Lawson, 2004:95-120), a detailed analysis of which surpasses the scope of this paper. Grosso modo, criteria established by the ECtHR encompass the effective control over an area test, 3 the test of effective control or authority over persons 4 and, as a variation of the two -the exercise of public powers normally to be exercised by sovereign government 5 . ...
The paper provides an in-depth analysis of the issue of extraterritorial application of human rights treaties in the specific context of transboundary environmental harm. The classic criteria for extraterritorial jurisdiction established through the landmark judgments of the European Court of Human Rights are revisited and compared with the extensive extraterritoriality threshold introduced by the Inter-American Court of Human Rights in its 2017 advisory opinion on environment and human rights. The author examines the features, requirements and limits of the new extraterritoriality threshold which is based on the effective control over intraterritorial activities that result in extraterritorial human rights' violations. The paper attempts to offer arguments for perceiving the new extraterritoriality threshold as a general standard of international human rights, as well as to examine whether it represents a (mis)interpretation of the duty to prevent transboundary environmental harm as a well-established rule of international environmental law. The author also discusses the prospects of expanding the application of the new jurisdictional threshold to other areas not necessarily linked to environmental degradation.
... 110 To obviate situations in which states purposely cooperate with other states or with private non-state actors in order to exploit the jurisdictional threshold and circumvent responsibility, scholars have called for a functional approach to jurisdiction. 111 This approach is based on the fact that indirect perpetration of an international wrong, that is to say a breach by proxy, would also incur responsibility. 112 It remains to be seen, however, whether courts will find this functional approach to jurisdiction persuasive enough for them to adopt it. ...
This Article focuses on the accountability challenges raised by the increased involvement of Private Military and Security Companies (PMSC) in migration control. I argue that migration control activities outsourced to PMSC can be classified as high-risk operations for the purposes of the application of relevant business and human rights standards. This reclassification of migration control activities as high-risk business operations, in turn, has two significant implications in terms of establishing accountability for PMSC’s wrongful conduct. First, it acknowledges that the privatization of migration control, especially within the context of continued containment and deterrence trends, entails a high risk of human rights abuses to which PMSC may contribute, both directly and indirectly. Second, this reclassification enables us to identify heightened obligations vested upon the home state of a PMSC, as well as the heightened responsibility of PMSC themselves. The article also examines what these heightened obligations and responsibilities entail.
... Article 1 of the European Convention on Human Rights (ECHR) states that '[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention'. However, these words remain unsettled and controversial, for instance, in European Court of Human Rights as to whether the circumstances of extra jurisdiction may cover within the ambit of this provision [46]. Environmental problems are frequently "transboundary" in nature. ...
Environmental deterioration in Southeast Asia region can be attributed to illegal logging and timber smuggling which contributes to de-forestation, wildlife smuggling, black-market transactions in ozone-depleting substances and dumping of other forms of hazardous wastes and chemical, illegal open burning incidents that can lead to air pollution contributing to transnational impacts. Controlling activi-ties that are taking place within one State resulting to environmental impacts in another State is not uncommon in environmental issues and thus, such activities are construed as environmental crimes at times. Hence, any illegal activities within another jurisdiction must be addressed efficiently as the conduct of such activities are becoming increasingly sophisticated and complex partly due to the nature of transnational activities that operate beyond national boundaries. This article will discuss transnational environmental crime in Malaysia and Southeast Asia region and assess the application of adopting extra-jurisdictional approach to combat transnational environmental crime by drawing the example from Singapore's experience of passing the Transboundary Haze Pollution Act 2014 to tackle challenges of haze pollution that are caused by activities in another State. The finding of this article suggests that extra-jurisdictional legislation is a common management tool in international law based on the international principle of territorial sovereign applies to conduct of a State within its territory. There seemed to be an exception that stems from a principle known as 'objective territoriality principle' under inter-national law that allows another State to make claims against another State that commits environmental crime resulting to transnational impacts. The efficiency of extra-jurisdictional approach will be analysed based on Malaysia's experiences in tackling transnational envi-ronmental crimes by reviewing domestic policies, local legislations and relevant international agreements to ensure that environmental protection is sustained.
... 64) However, the ECtHR appears to have somewhat departed from the strict spatial application and understanding of the jurisdictional clause as held in Banković in its further case law. (Miller, 2009(Miller, , p. 1228Ryngaert, 2012, p. 58) Leading in this regard is Al-Skeini and others v. ...
... Treaty monitoring bodies indeed increasingly clarify that a State's jurisdiction under international human rights law can and does extend beyond its sovereign borders. 129 Whilst for some such jurisdiction remains the exception to the norm, 130 others have argued that it is more than exceptional. 131 In examining this topic, one cannot ignore the gist of the ECtHR's case law under the European Convention on Human Rights as it is arguably the strongest human rights protection mechanism at the international level and has had a significant influence on the conceptualization of extraterritorial jurisdiction. ...
Under Australia’s current border control policy, called ‘Operation Sovereign Borders’, migrants arriving irregularly by boat are transferred to offshore processing centres in Nauru and Papua New Guinea. On the basis of their poor human rights record, such centres are often criticized with reference to international human rights law. By conceptualizing the Australian–Nauruan arrangement as one of nodal governance, this article examines whether international human rights law constitutes an appropriate instrument to hold the involved actors responsible and accountable. The analysis of jurisdiction and attribution shows that it is difficult to establish responsibility on behalf of one of the involved actors. Yet even if responsibility can be allocated, proper human rights accountability is still impeded given the weak monitoring system and the non-transparent processing facilities. Establishing de jure responsibility in this context is thus extremely difficult but, even if one succeeds, accountability is not sufficiently effectuated de facto. The article concludes by questioning the actual legal value of human rights in nodal settings and by providing recommendations for further (extralegal) analysis.
... In reality, the practice of law is quite different. Legal scholarship and jurisprudence have therefore entertained endless debate in Australia, for example, about the High Court's capacity to impose on state and territory judicial function via judicial review, advisory opinion and protection of the rule of law (Fearis, 2012;Goldsworthy, 2014;Irving, 2004), and elsewhere, for example, regards the power of local legislatures and officials to challenge a country's exercising its national laws and meeting international obligations (Butt, 2010) or the scope for extra-territorial jurisdiction in regional conventions (Miller, 2010) More accurate and nuanced interpretations of how space and scale function in the actual practice as well as geographical imaginary of law have likewise been informing the legal geography literature. One early but important observation, for example, states: ...
Sydney's Medically Supervised Injecting Centre delivers the significant benefits of harm reduction, but has been controversial regards the law. Its contested history is examined here through the lens of legal geography. Narrative analysis reveals that the arguments for and against the centre's establishment referenced matters ranging from international treaties through to municipal governance. These arguments and their outcome were variously shaped by the different spaces and scales of jurisdiction but not simply in a zero sum game of law played out through the hierarchically ordered nesting of container-like territories. The implications for legal geography and for public health are discussed.
The aim of the article is to analyse the legal situation of the children held in camps in northeast Syria. The situation in the camps is devastating and poses a threat to the children’s right to life as well as physical and mental integrity. The article explores whether the states of citizenship of these children exercise any jurisdiction over them, and if the answer is affirmative, to what extent they exercise this jurisdiction. Next, the research will focus on the question of whether the states of citizenship have the obligation to repatriate those children from Syria. To this aim, the status of these children as victims of human trafficking will be also examined. Lastly, the deliberations will focus on the policy of citizenship revocation that is applied by some states in terrorism combatting and it will be studied whether this policy can be applied to children in conformity with international law. It results from the analysis that states have obligations towards children placed in the Syrian camps being their nationals, especially an obligation to repatriate them and to enable their rehabilitation and reintegration.
Las condiciones de la aplicación extraterritorial del Convenio Europeo
de Derechos Humanos han sido el objeto de numerosas demandas ante el
Tribunal Europeo de Derechos Humanos, especialmente con ocasión de
las operaciones militares en las que participan los Estados parte. En este
trabajo se analiza cómo ha evolucionado la interpretación del artículo 1
del convenio por parte del TEDH y la lógica que subyace a sus pronunciamientos —en ocasiones implícita—, y se muestra un esquema de la doctrina que hasta el momento ha desarrollado el TEDH para conocer en qué
circunstancias los Estados parte deben cumplir con las obligaciones del
CEDH aun fuera de su territorio
This paper considers whether UK corporate insolvency law and the UK Insolvency Act 1986 have extra-territorial effect post-Brexit, and whether – and to what extent – it is for the courts or the legislature to extend any extra-territorial effect. It does not deal with ‘inward recognition’, ie the recognition of foreign judgments and orders in the UK.
Brexit has left something of a vacuum and provisions which might otherwise have applied extra-territorially, at least within the EU, may now have been deprived completely of extra-territorial effect. But all is not lost and Brexit here presents opportunities. There is room for clarifying that particular provisions which might otherwise have discriminated between EU application and application vis-à-vis the rest of the world can now be given a uniform global interpretation. Courts should, however, proceed incrementally in extending the extra-territorial scope of UK corporate insolvency law.
A bolder reform would be to enact legislation that specifies the exact extent to which the UK Insolvency Act applies extra-territorially. Legislation obviously depends on parliamentary time and requires detailed drafting but also provides the opportunity for the UK to showcase that it remains at the forefront of international insolvency developments.
Cyberspace operates on a geographically borderless platform, thus often rendering national laws ineffective in regulating the impact of cyber-related activities outside South African borders. Recognising this issue, South Africa adopted the Cybercrimes Act, which permits the exercise of extra-territorial jurisdiction over trans-national cyber-related offences. The enforcement and effectiveness of extra-territorial jurisdiction and extradition law have, however, proven to be challenging and controversial in the international sphere. Issues such as internet fragmentation, contrasting municipal laws, and uncoordinated regulatory actions across state boundaries have undermined existing provisions regulating trans-national cybercrimes. These issues are furthered by the increased recognition of human rights, such as the right to privacy, which has deterred international cooperation and collaboration as states are subsequently required to subject their own citizens and entities to increased interception and scrutiny. The main thesis of this investigation is aimed at reviewing the practical implications surrounding the enforcement of extra-territorial jurisdiction and extradition law over trans-national cybercrimes. To this end, states are implored to develop both domestic and multilateral cybercrime laws and to improve existing enforcement mechanisms outlined in extradition law and mutual assistance agreements.
This PhD thesis analyses the impact of "outsourcing" migration management in the Euro-Mediterranean area on victims of human trafficking. In particular, from an international law perspective, the research focuses on the cooperation between the EU and its Member States, on the one hand, and migrants' states of origin and transit, on the other hand. After examining the potential conflict between these instruments and international law on human trafficking, the thesis analyses the consequences under the Draft Articles on the International Responsibility of States (DARS) and the Draft Articles on the Responsibility of International Organisations (DARIO).This research consists of four chapters. The opening chapter describes the context of migration management in the Euro-Mediterranean area, focusing on the cooperation between the EU States and the States of origin or transit or migrants. Such cooperation is mainly based on numerous agreements aimed at preventing people from leaving their home country or from remaining irregularly in the territory of the country of their destination. By analysing the content of some of the most paradigmatic examples of this practice, the thesis argues that almost all non-standard agreements can be considered binding international treaties. However, what is most problematic is the content of these instruments, which provide for accelerated and simplified readmission procedures or joint coastal controls aimed at preventing migrants from entering European territory. Such provisions are in stark conflict with international law of human trafficking, analysed in the second chapter (i.e. the Protocol to Prevent, Suppress, and Punish Trafficking in Persons and the CoE Convention on Action against Trafficking in Human Beings), the human rights treaties including human trafficking in their scope and other provisions binding European states (including EU Directives 2011/36/EU and 2004/82/EC).The second part of the thesis focus on the consequences of such conflict under the law of international responsibility.The third and fourth chapters, in particular, respectively analyse the hypotheses of ‘direct responsibility and ‘indirect responsibility in international wrongdoing. In both cases, some case studies are considered (f.e., the cooperation between Italy and Libya, between Spain and Morocco and between the EU and Turkey).As far as direct responsibility is concerned, on the one hand, a part of the discussion is devoted to the incompatibility between conventional norms. Indeed, international wrongdoing may arise between specific norms in light of the combined provisions of Articles 30(4) and 41 of the Vienna Convention on the Law of Treaties. On the other hand, the chapter deals with the remedies directly available to victims of human trafficking in the context of “outsourcing” migration management. In this sense, specific considerations concern the EU's responsibility for Frontex activities in the Mediterranean and the applicability of human rights treaties.Finally, the fourth chapter assumes the applicability of the responsibility complicity in the international wrongdoing in two case studies: cooperation between Italy and IOM for voluntary and assisted repatriations to Niger, and EU political and financial support for repatriations to Libya and Turkey.
In January 2021 the Human Rights Committee determined that Italy and Malta had both failed to protect the right to life of more than 200 migrants who perished in a shipwreck in 2013. The Committee tackled for the first time the question of extraterritorial application of the International Covenant on Civil and Political Rights to persons in distress at sea. While finding the decision against Malta to be inadmissible, the Committee engaged in a significant analysis of the concept of jurisdiction in both decisions. This article analyses how the decisions interpret the concept of ‘jurisdiction’ and juxtaposes this analysis against the approaches taken in other international legal regimes. The article then theorises on the impact of these two decisions in helping to crystallise a new ‘right to be rescued at sea’.
This chapter provides an introduction to international human rights law. After introducing human rights generally, the chapter goes on to provide an overview of civil and political rights and of economic, social and cultural rights. A subsequent outline of the limitations and derogations that can be put on human rights provides understanding of the limits of human rights law. Following this, an overview of the United Nations human rights system is given, examining the three main agents of human rights within the United Nations: the treaty bodies (who oversee the implementation of the human rights treaties); the Human Rights Council (which undertakes the Universal Periodic Review); and the Office of the High Commissioner for Human Rights (which oversees incorporating human rights into all United Nations entities and actions). The chapter looks at the extraterritorial application of human rights, before concluding with two conflict- and security-related human rights case studies.
Résumé : La mer est le théâtre d’un grand nombre d’activités illicites. Qu’il s’agisse des actes de violence (piraterie, terrorisme), des trafics illicites (stupéfiants, migrants, armes de destruction massive), ou encore des atteintes à l’environnement marin (pollutions intentionnelles, pêche illicite), cet espace se présente comme des plus vulnérables face aux activités criminelles et délictueuses qui prospèrent en son sein. Si ce constat n’est pas entièrement nouveau, la figure séculaire du pirate sans foi ni loi qui sillonne les mers pour piller les navires marchands en attestant, la période contemporaine semble néanmoins marquée par une insécurité maritime croissante. La CNUDM n’apporte qu’une réponse partielle à ces menaces. Ce texte fondateur organise l’exercice des compétences étatiques sur l’espace maritime. Il consacre un principe général de liberté des mers, lequel se décline en différents droits d’utilisation de l’espace qui bénéficient à l’ensemble des États, tout en reconnaissant à ces derniers une capacité à s’interposer contre les navires interlopes étrangers. Cette Convention souffre toutefois de certains manques, notamment en raison du fait qu’elle ne s’inscrit pas pleinement dans une dimension répressive affirmée. Ce socle central se voit renforcer par différentes conventions de coopération pénale qui viennent consolider le dispositif international de lutte contre les activités illicites en mer. Ces conventions constituent un complément majeur en ce qu’elles organisent la prévention et la répression de ces actes illicites à l’échelle internationale. Il reste que face à des actes criminels et délictueux extrêmement versatiles et diversement répartis sur la surface du globe, ce dispositif international ne peut en lui-même suffire. C’est pourquoi différentes voies ont été explorées, tant par les États que par certaines organisations internationales, dans le but d’œuvrer plus efficacement contre ces activités illicites. Dans le même temps, les juridictions internationales sont progressivement venues consacrer un ensemble de garanties susceptibles de bénéficier aux individus appréhendés en mer, que les États intervenants sont tenus de respecter. En définitive, il apparaît que pour lutter contre les activités illicites en mer, les États souffrent moins d’un manque de normes que d’un défaut de coopération effective. De nombreux efforts doivent encore être réalisés dans ce domaine.
The chapter explains evolving, yet the contradictory, notion of extraterritorial jurisdiction through the rulings of the European Court of Human Rights
This edited volume analyzes the function and role of international law in a framework of increased global governance by focusing on how ‘community interests’ are articulated and protected and how global public goods are provided in various domains. The chapters analyze the concept of ‘community interests’ and the adequacy and effectiveness of the institutional framework and mechanisms established under international law to protect and safeguard them.
Free for download at https://intersentia.com/en/protecting-community-interests-through-international-law.html
The European Court of Human Rights (ECtHR or Court) has used the term ‘European public order’ in more than a hundred decisions and judgments. This number suggests that its deployment is not a coincidence; the Court seemingly relies on European public order. The Grand Chamber of the ECtHR has been referring to European public order more and more frequently in recent years. However, in none of these judgments has the Court explained what European public order actually means and how it can be conceptualised.
The concept of jurisdiction is a relatively undertheorized category of international law. Mainstream international law scholarship advances an ahistorical and asocial account of the rules of jurisdiction in international law. The present article contends that any serious understanding of the categories and rules of jurisdiction, in particular that of extraterritorial jurisdiction, calls for deep appreciation of the evolving material structures over time. It argues that the key factors that have influenced the evolution and development of the doctrine, rules, and practices of jurisdiction are the emergence of the modern state, capitalism, and imperialism. In order to appreciate this contention there is a need to undertake on the one hand a genealogical analysis of modern state and capitalism and on the other hand problematize the categories ‘territory’ and ‘extraterritorial’. The internal relationship between capitalism and imperialism has meant that, despite the territorial organization of the international system, a process of harmonization of legal rules has taken place across geographical spaces in both colonial and postcolonial eras. The outcome is a critical loss of policy and legal space for nations of the Global South. In the colonial era the outcome was achieved through legislation in the instance of colonized nations and through capitulation regimes in the case of semi-colonies. The strategy of advanced capitalist states in the postcolonial era for achieving harmonization of laws has been multi-layered and multi-dimensional. The article concludes by touching on two models of reform of the rules and practices of jurisdiction viz., liberal and subaltern internationalism.
The chapter explores the question of whether the EU is bound by human rights obligations towards individuals located outside the territory of the Member States when it concludes trade agreements with third countries. In this light, the chapter focuses on two concrete sub-questions: (a) the question of the extraterritorial applicability of the EU Charter of Fundamental Rights; and (b) the question of the existence of a due diligence obligation incumbent upon the EU institutions to examine the impact of the agreement to the human rights situation in the third State. In relation to the question of the extraterritoriality of the Charter, the chapter argues that territorial considerations are immaterial in the context of determining the Charter’s applicability; what matters in this context is whether the situation in question is covered by an EU competence. Next, the chapter examines whether a relevant EU duty of due diligence exists—as a matter of either EU or international law. It is shown that the existence of such a duty under international law is far from straightforward and it involves an examination of the relevant primary norms. The chapter concludes by highlighting that, as a matter of EU law, a duty of due diligence to take into account the impact of a future agreement on the human rights situation in a third State clearly exists.
The humanitarian intention that constituted the moral basis for the institution of UN peacekeeping missions has been tarnished by recurrent scandals of sexual abuse and exploitation committed by UN peacekeepers in the course of their deployment in politically unstable countries. The victims of these perverse crimes are the same local communities that Blue Helmets are employed to protect; in particular women and children. Despite the gravity of the issue, both the Organisation and the troop-contributing states have been slow to react and address the problem, and this negligence frustrates the victims’ rightful claim to redress and reparation. Attribution of responsibility in multilateral operations is complex to achieve because of the numerous and diverse actors on the ground and this factor, combined with the host states’ impotence in advocating for their nationals, has created an accountability gap that will be arduous to overcome. This dissertation aspires to present the main issues at play in a comprehensive manner; to explore the current legal framework of protection of victims of peacekeepers’ sexual misconduct in order to showcase its weaknesses; and to advance the possibility that the European Court of Human Rights could play a major role in ensuring that victims’ right to a fair remedy is not trumped by the rival political interests of the UN and the troop-contributing nations.
AİHK, Konvansiyon tarafı devletlere Konvansiyonda öngörülen hakları ve özgürlükleri ülkelerinde temin etme yükümlülüğü getirmektedir. AİHM’nin ancak 1990’lı yılların sonundan itibaren kararlarında AİHK’nun extraterritorial uygulanmasını kabul ettiği görülmektedir. AİHM’nin bu çerçevedeki kararları birbiriyle tam olarak uyumlu görülmemektedir. Makalede AİHM’nin hangi koşullar altında AİHK’nun extraterritorial uygulanmasını kabul ettiği somut karar örnekleri ışığında ele alınmaktadır.
The Application of the European Convention on Human Rights to Military Operations - by Stuart Wallace April 2019
Cambridge Core - European Law - The Application of the European Convention on Human Rights to Military Operations - by Stuart Wallace
There are many variations of a human rights-based approach to climate change. In its most legalistic form, a human rights-based approach entails claims pursued through legal processes to seek accountability and compensation for human rights violations caused by the effects of climate change. While such an approach has the potential to result in meaningful changes to government policy and positive impacts on the lives of affected individuals and communities, there are numerous challenges to its effectiveness, particularly when it relies on conventional systems of international human rights law. These challenges flow from the cumulative, transnational and intergenerational nature of climate change impacts, as well as from the norms, structures and methods of human rights law itself. This chapter analyses these various obstacles, drawing on recent jurisprudence from domestic and regional jurisdictions. Despite the challenges which are identified, the chapter argues that there are many benefits to be gained from a human rights-based approach to climate change, particularly when we look beyond the confines of traditional legal mechanisms to alternative forms of advocacy.
Violent activities undertaken by insurgent movements more than often involve human rights violations, thus provoking questions on the scope of resulting international accountability of states involved. Under general international law, the conduct of private entities is not attributable to a state unless there exists a particular factual relationship between a sovereign and members of an insurgent group. Two dramatic events of 2014, which is the Chibok abduction in Nigeria and the downing of the MH17 plane in Ukraine, serve as a background for a detailed analysis of the jurisprudence of the African Commission on Human and People’s Rights and the European Court of Human Rights. It leads to the conclusion that during armed conflicts (be it of international or non-international character), individuals and entire communities should be protected by territorial states from insurgent movements. Moreover, contrary to a prima facie intuition, the positive obligation of a state remains in force even within territories seized and effectively governed by a rebel group that is neither controlled nor supported in any form by a territorial sovereign.
Violence against children is a major threat to global development, as well as the attainment of the Millennium Development Goals (MDGs). Protecting children from the ravages of violence is a state obligation, a legal duty and a concern for international peace and security. It is also a key humanitarian issue in conflict-affected areas. While Nigeria is a state party to several international law instruments that enshrine the protection of children, Nigerian children are subjected to violence, particularly in recent times, by the insurgency of Boko Haram. Since the advent of Boko Haram in Nigeria, the child is arguably the most vulnerable. From inhibition of the realisation of the right to education among other child rights to the kidnapping of over 200 schoolgirls, danger continues to loom large. Considering that children have been recruited as members of the sect carrying out attacks on the society, the challenge deepens. This paper seeks to look beyond the question of law and explores a socio-legal approach to curbing the Boko Haram insurgency. It will examine not only the general and specific legislative, institutional, policy and administrative measures for addressing the Boko Haram insurgency but also the activities of other militia groups. The paper will conclude by making recommendations for policy formulation and development of interventions for the prevention and mitigation of the effects of violence against the Nigerian child in order to stimulate further dialogue on child rights from a socio-legal perspective.
For the past thirty years the European Court of Human Rights (ECtHR) has protected
human rights related to the environment. Nevertheless, there are contemporary human
rights problems related to the environment where the developments are modest or there
is no case law. This research makes a proposal on how the transformation of the current
case law and doctrines of the ECtHR facilitate the future greening of the jurisprudence in
three areas. The first area discusses the role of the environment in the case law, the second concerns the greening of claims of indigenous peoples and the third focuses on climate change cases. The main method in this research is rewriting the current judgments.
It is by now uncontroversial that states may owe human rights obligations to individuals outside their territory. The debate about extraterritoriality has, so far, focused on the concept and interpretation of jurisdiction. The role of territory in general, and title in particular, in the conceptual landscape has received less attention in comparison. This article aims to fill this gap by showing that (a) title to territory continues to shape interpretations of jurisdiction, and (b) that this should be avoided. To this end, the article first defines jurisdiction in international human rights law and title to territory. Jurisdiction is best understood as a threshold criterion that triggers human rights obligations of states towards particular individuals. Title to territory, on the other hand, is a set of claims to territory designed to uphold minimal stability. The article then introduces three models – the approximation model, the differentiation model, and the separation model – of the relationship between title to territory and jurisdiction in international human rights law and evaluates them in light of their fit with the relational nature of human rights. The result is that the approximation and differentiation models – that is, those that maintain title's influence on the interpretation of jurisdiction in various degrees – fail the success criterion, while the separation model satisfies it.
An overview of political, institutional and legal questions related to the functioning and future developments of the CSDP pf the EU
This chapter discusses the role of Article 1 ECHR. Article 1 ECHR defines the scope of the instrument, and the part this provision plays is an important preliminary issue for this research. In private international law cases, foreign elements are introduced to legal orders. Occasionally, private international law will introduce foreign elements from third countries, i.e. countries that are not Contracting Parties to the ECHR. It is interesting to consider what the role of Article 1 ECHR is in such cases. Following from the Court’s case law concerning Article 1 ECHR, the ECHR is applicable when a court of a Contracting Party either determines whether it is competent to hear an international case concerning an issue of private law, or recognizes and enforces a foreign judgment. This applies irrespective of whether a foreign law or judgment originates from either a Contracting or a non-Contracting Party (third country), or whether the case has a close connection to the Contracting Party concerned, or little to none at all. This observation may have important consequences, particularly for the use of the public policy exception in issues of private international law, as has been further elaborated in the later chapters on applicable law and the recognition and enforcement of foreign judgments.
The principle of non-refoulement found in the UN Convention on the Status of Refugees has been widely regarded as the core element of the international refugee protection regime. However, in the recent era of restrictive external migration controls, its significance and ambit diminished to the extent that states began to regard it as a general moral principle that imposed only narrowly defined legal constraints. In particular, interception or interdiction of refugees on the high seas came to be regarded as activities falling outside the legal ambit of the non-refoulement obligation. However, in Europe, this has begun to change. The non-refoulement obligation found in Article 3 of the European Convention on Human Rights (ECHR) has been recognized as a legal constraint on state sovereignty in relation to migration controls on the high seas. This article scrutinizes how the developing concept of jurisdiction in human rights law, particularly as found in the ECHR, has expanded the scope of application of the principle of non-refoulement, and presents some important implications. The concept of state sovereignty has begun to undergo a paradigm shift that places extraterritorial human rights concerns relating to external migration controls squarely within a legal rather than merely a moral framework. Copyright
Medical practice in the UK Armed Forces has developed in tandem with ethical and legal constructs, grounded in a post-Westphalian structure of sovereignty and territorial integrity. Recent challenges to the orthodox concept of morality in war, as well as the move away from the traditional concept of war between two nation-States, and the development both of International Humanitarian Law and International Human Rights Law are altering the discourse of how war ought to be conducted.These changes not only impact upon combatants and their commanders, but as I argue, they also affect military medical personnel, exposing a conceptual gap between the proposed moral status and the current legal status of military medical personnel. Exploring the increasing predominant extra-territorial role of the European Convention on Human Rights, I argue that this fails to add guidance to military medical personnel both at a strategic and a tactical level. Further, I argue that, as jus ad bellum and jus in bello conflate under revisionist Just War Tradition, the moral implications ought to be felt by medical personnel. In order to restore medical personnel towards a professional ethical position analogous to that held by civilian healthcare practitioners, whilst continuing to serve with the Armed Forces, I propose a Virtue Theory approach that allows closer reconciliation between ethical civilian and military medical practice.
The conditions under which the European Convention of Human Rights applies outside a Member State's territory continue to be imprecisely defined. This article attempts to clarify the meaning of 'authority' and 'control', the core notions employed by the Convention organs to determine extraterritorial 'jurisdiction' under Article 1 of the Convention. In line with early case law, it is argued that a State brings persons within its extraterritorial jurisdiction if it exercises actual authority over them. Actual authority, the article continues, should be understood as the ability to prescribe conduct. Whether a State prescribes conduct by formal or informal means is irrelevant; even seemingly mere factual acts may have a normative content and constitute authoritative acts. 'Control' describes the State's ability to enforce the conduct it has prescribed. Only where it has such control can the State be said to have actual authority, and therefore jurisdiction, over the person concerned.
The first part says that this chapter critically evaluates the key international law rules and principles that have been proposed as ways to negotiate the relationship between international humanitarian law ('IHL') and international human rights law. This chapter examines some of the key legal concepts, principles and methodologies currently available as tools to navigate the relationship between the two fields, identifying their advantages and shortcomings. First, Part II discusses some of the dominant metaphors in international law scholarship in characterising the relationship between the two bodies of law, and elaborates on the idea of 'interoperability. Part III then discusses some of the key legal principles and concepts, including the lex specialis principle; the 'complementary theory;' rules regarding derogations from human rights treaties; and general rules of treaty interpretation, focusing in particular on the principle of systemic interpretation of Vienna Convention on the Law of Treaties ('VCLT'). Keywords:international humanitarian law ('IHL'); interoperability; Law of Treaties; principle of systemic interpretation; Vienna Convention
In this book the interaction between the rights guaranteed in the European Convention of Human Rights (ECHR) and private international law has been analysed by examining the case law of the European Court of Human Rights (the Court) and selected national courts. In doing so the book focuses on the impact of the ECHR on the three main issues of private international law: jurisdiction, applicable law and the recognition and enforcement of foreign judgments. Next to a list of cases consulted and a comprehensive bibliography, the book offers brief introductions to PIL and the ECHR for readers who are less familiar with either of the topics. This makes the book not only a valuable tool for specialists and practitioners in the fields covered, but at the same time a well-documented basis for students and starting researchers specializing in either or both directions.
This book examines the application of UK Criminal and Human Rights Law to people and circumstances outside the United Kingdom. Building upon previous analyses which have focused on a single aspect of extraterritorially, this book examines the fields of Criminal and Human Rights law as the two main areas of non-private law which are frequently applied across borders. Both fields are placed in context before being drawn together in a coherent and systematic way. The book examines recent law and practice, as well as historic developments and explores the concept of enforcement. The author’s analysis includes coverage of topics such as the criminalisation of sex-tourism, the extradition of white-collar criminals and the application of human rights law to Iraq following American and British intervention in the region. Law Across Borders goes on to point the way forward in the development of the extraterritorial application of public law, and suggests ways in which greater coherence can be achieved.
It is now widely accepted that international human rights law applies in situations of armed conflict alongside international humanitarian law, but the contours and consequences of this development remain unclear. This book revisits, organizes and contextualizes the debate on human rights in armed conflict and explores the legal challenges, operational consequences and policy implications of resorting to human rights in situations of inter- and intra-state violence. It presents the benefits and the drawbacks of using international human rights law alongside humanitarian law and discusses how the idea, law and policy of human rights influence the development of the law of armed conflict. Based on legal theory, policy analysis, state practice and the work of human rights bodies it suggests a human rights-oriented reading of the law of armed conflict as feasible and necessary in response to the changing character of war.
Questions as to when a state owes obligations under a human rights treaty towards an individual located outside its territory are being brought more and more frequently before both international and domestic courts. Victims of aerial bombardment, inhabitants of territories under military occupation, deposed dictators, suspected terrorists detained in Guantanamo by the United States, and the family of a former KGB spy who was assassinated in London through the use of a radioactive toxin, allegedly at the orders or with the collusion of the Russian government - all of these people have claimed protection from human rights law against a state affecting their lives while acting outside its territory. These matters are extremely politically and legally sensitive, leading to much confusion, ambiguity and compromise in the existing case law. This study attempts to clear up some of this confusion, and expose its real roots. It examines the notion of state jurisdiction in human rights treaties, and places it within the framework of international law. It is not limited to an inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, nor even to their construction into workable legal concepts and rules. Rather, the interpretation of these treaties cannot be complete without examining their object and purpose, and the various policy considerations which influence states in their behaviour, and courts in their decision-making. The book thus exposes the tension between universality and effectiveness, which is itself the cause of methodological and conceptual inconsistency in the case law. Finally, the work elaborates on the several possible models of the treaties' extraterritorial application. It offers not only a critical analysis of the existing case law, but explains the various options that are before courts and states in addressing these issues, as well as their policy implications.
This "current development" piece examines the response of the Council of Europe to evidence that European states participated in the CIA detention and rendition program. Most notably, the Council's Venice Commission issued a legal opinion concluding that participation in the CIA program is incompatible with the European Convention of Human Rights (ECHR); and that member states are obligated, not only to refrain from participating themselves in the program, but also to prevent other states from engaging in it in member state jurisdictions. With that latter conclusion, the Commission imposes on member states the obligation to police the activities of other states and effectively imputes to those other states obligations under the ECHR. This is likely to complicate future U.S. efforts to engage in intelligence operations in, through, or with Europe.