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'Territorial Non-Application' of the European Convention on Human Rights
Abstract
This article examines the issue of when a State can be considered not to exercise jurisdiction under Article 1 of the European Convention on Human Rights in parts of its own territory. The starting point is that the notion of jurisdiction in the Convention is primarily territorial, and that a State is presumed to exercise jurisdiction throughout the entire territory. The presumption can be rebutted in exceptional circumstances. The author argues that this can happen only if the State is prevented from exercising authority and control in parts of the territory, and that the lack of authority and control must be caused by the influence of another State. Even if the State is considered to be in this position, the State retains a "reduced jurisdiction", and is under a positive obligation to take measures to protect the human rights of the population. The article examines the issue with particular reference to the Assanidze and Ilaşcu cases from the European Court of Human Rights, and illustrates the issue by reviewing briefly the current situation in four regions in the Caucasus.
From the Cold War era to the current century, the United States has wielded substantial authority in imposing sanctions. This book delves into the intricate and multifaceted landscape of US economic and financial sanctions, unravelling their historical development, legal foundations, and geopolitical motivations. Case studies on five of the most-sanctioned countries in the world – Russia, Iran, Iraq, Cuba, and Venezuela—provide a deeper understanding of how the sanctioning measures allow the US to extend its reach beyond its national boundaries through extraterritorial laws, sophisticated enforcement mechanisms, and the pervasive dollar-denominated global economic structure. Meticulous and nuanced, this book is a go-to resource for understanding sanction regimes from both multilateral and unilateral perspective and the relevant international laws and jurisprudence.
Güney Amerika Ortak Pazarı (Mercado Común del Sur – MERCOSUR) Güney Amerika’da kurulmuş bölgesel nitelikli uluslararası örgütlerden biridir. Kurulduğu günden bugüne dalgalı bir gelişim süreci geçiren MERCOSUR bölgesel ölçekli ve temelde ekonomik bütünleşmeye dayanan bir uluslararası örgüt olma vasfından Avrupa Birliği (AB) gibi ulusüstü bir örgüte dönüşüm noktasında birçok farklı tartışmaya konu olmaktadır. Bu kapsamda MERCOSUR’un kurumsal yapısı, karar alma usulleri, örgüt içi uyuşmazlık çözümü ve yargı organları, üye devletlerin egemenliklerinin bir bölümünün örgüt bünyesine devri gibi konulardaki konumu MERCOSUR’un ulusüstü bir yapıya dönüşümü noktasında incelenmesi gereken hususlar olarak ön plana çıkmaktadır. Öte yandan üye devletlerin MERCOSUR bünyesindeki bütünleşme sürecine bakışı ve bu sürece destekleri MERCOSUR’un geleceği için belirleyicidir. Çalışmamız bu kapsamda MERCOSUR’un tarihsel gelişim sürecini, amaçlarını, kurumsal yapısını, MERCOSUR bünyesinde meydana getirilen normatif yapıyı, uyuşmazlık çözümü mekanizmalarını, yargısal yapıyı ve nihayetinde MERCOSUR’un ulusüstü bir yapıya dönüşüm noktasında bulunduğu durumu AB ile karşılaştırmalı olarak incelemektedir. Çalışmamızın sonucunda MERCOSUR’un halihazırda bölgesel nitelikli bir uluslararası örgüt olarak tanımlanabileceği ve MERCOSUR’u AB gibi ulusüstü örgütlerden ayıran birçok husus olduğu tespit etmektedir.
Avrupa İnsan Hakları Sözleşmesi’nde yetki, uluslararası hukuktaki karşılığından farklı olarak, taraf devletlerin sözleşmelerden doğan yükümlülükleriyle ilişkilendirilmektedir. Sözleşme’nin ülke dışına uygulanması çerçevesinde devletin yetkisinin tespiti, taraf devletin belirli bir bölge veya birey üzerinde yasama, yürütme veya yargı yetkisi kullanmasından yahut bu yetkilerini kullanmasına ilişkin sınırların belirlenmesinden ziyade; devletin, belirli bir bölge veya hak sahibi birey üzerinde denetim ve otorite uygulaması üzerine kurulmaktadır. Avrupa İnsan Hakları Mahkemesi’nin 2022 tarihli Ukrayna ve Hollanda/Rusya kabul edilebilirlik kararı ise Sözleşme’nin ülke dışına uygulanabilirliği çerçevesinde yetki kavramına, yetki ve atfedilme kavramları arasındaki ilişkiye ve Sözleşme’nin uluslararası nitelikli silahlı çatışmalar sırasında uygulanmasına ilişkin değerlendirme içermesi bakımından önemli bir kararı teşkil etmektedir. Çalışmada ise söz konusu karar çerçevesinde Mahkeme’nin yetki yaklaşımı incelenecektir.
This article discusses the findings of the European Court of Human Rights in the 2021 case of Georgia v Russia (II) in relation to the applicability of the European Convention on Human Rights to the conduct of hostilities. The article describes the arguments advanced by the Court to support the idea that the Convention does not apply to extraterritorial hostilities in an international armed conflict. In the light of past decisions, international humanitarian law, international human rights law, and the law of the treaties, it is argued that the Court's conclusion is unconvincing and the arguments seem to be based on extralegal considerations, rather than on a sound interpretation of the notion of state jurisdiction under the Convention.
This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. It argues that the jurisprudence of the European Court for Human Rights, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.
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
The “annexation” of Crimea by the Russian Federation and the ongoing conflict in Eastern Ukraine have resulted in widespread human rights abuses. Both Ukraine and the Russian Federation are signatories to the European Convention on Human Rights and the Convention should apply within the territory and to the conflict. However, recent applications to the European Court of Human Rights reveal a great deal of confusion over which State bears responsibility for protecting human rights in different parts of Ukraine. This article seeks to shine a light on this problem presenting a deep analysis of the European Court of Human Rights’ jurisprudence and discussing how it applies to both the conflict in Eastern Ukraine and “annexed” Crimea. It addresses salient issues such as responsibility for the actions of non-state actors and armed groups in Eastern Ukraine and whether the legality of the “annexation” has any bearing on the human rights obligations of each State. The article presents a detailed critique of recent judgments from the European Court of Human Rights arguing that the jurisprudence of the Court has created a bewildering degree of complexity and uncertainty as to the obligations of each State and discussing the practical implications of this uncertainty.
The“annexation” of Crimea by the Russian Federation and the ongoing conflict in Eastern Ukraine have resulted in widespread human rights abuses. Both Ukraine and the Russian Federation are signatories to the European Convention on Human Rights and the Convention should apply within the territory and to the conflict. However, recent applications to the European Court of Human Rights reveal a great deal of confusion over which State bears responsibility for protecting human rights in different parts of Ukraine. This article seeks to shine a light on this problem presenting a deep analysis of the European Court of Human Rights’ jurisprudence and discussing how it applies to both the conflict in Eastern Ukraine and “annexed” Crimea. It addresses salient issues such as responsibility for the actions of non-state actors and armed groups in Eastern Ukraine and whether the legality of the “annexation” has any bearing on the human rights obligations of each State. The article presents a detailed critique of recent judgments from the European Court of Human Rights arguing that the jurisprudence of the Court has created a bewildering degree of complexity and uncertainty as to the obligations of each State and discussing the practical implications of this uncertainty.
This chapter focuses on the duty of care from the perspective of the legal relationship that the sending international organization establishes with the hosting State. This is a privileged perspective to investigate the plurality of legal regimes in which the duty of care is implemented. Indeed, the protection of international civilian personnel is at the intersection of international law, national law of the hosting/sending State and internal law of the organization. The aim is to enlighten a fundamental component of the broader obligation that international organizations have to protect the safety of their personnel deployed in international missions. In particular, this chapter focuses on the relationship that the sending organization has to establish with the hosting State in order to fulfil its duty of care. Moving between regimes and points of view, it builds on the fundamental principle under which hosting States bear the primary responsibility to protect civil servants deployed in their territories.
This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. It argues that the jurisprudence of the European Court for Human Rights, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.
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.
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.
Is there still a right to seek asylum in a globalised world? Migration control has increasingly moved to the high seas or the territory of transit and origin countries, and is now commonly outsourced to private actors. Under threat of financial penalties airlines today reject any passenger not in possession of a valid visa, and private contractors are used to run detention centres and man border crossings. In this volume Thomas Gammeltoft-Hansen examines the impact of these new practices for refugees' access to asylum. A systematic analysis is provided of the reach and limits of international refugee law when migration control is carried out extraterritorially or by non-state actors. State practice from around the globe and case law from all the major human rights institutions is discussed. The arguments are further linked to wider debates in human rights, general international law and political science.
The article addresses the question of jurisdiction criterion introduced in article 1 of the European Convention on Human Rights in respect to a territorial State. It is inspired by a relatively fresh judgment of the European Court of Human Rights in the Sargsyan v. Azerbaijan case - one of the two cases arisen out of conflict in Nagorno-Karabakh, which were simultaneously decided in Strasbourg. The article's aim is twofold. First, it reconstructs and discusses the methods applied by the Court in the sub judice case in question of territorial application of the echr and potential exemptions. Second, it searches for some general conclusions concerning the jurisdiction criterion in the Convention system. This is dictated by a conviction about usefulness of inclusion to a greater extent a perspective of territorial application of the echr into a debate over the jurisdiction concept, most frequently contextualised by its extraterritorial dimension.
Common Article 1 of the 1949 Geneva Conventions is today generally seen as a ‘quasi-constitutional’ international law rule, premised on the doctrine of obligations erga omnes and imposing on all contracting states an obligation to take a variety of measures in order to induce not only state organs and private individuals but also other contracting states to comply with the Conventions. The phrases ‘ensure respect’ and ‘in all circumstances’ contained therein, in particular, have been understood to imply a ‘state-compliance’ meaning, drawing basically upon the ICRC Commentaries to the 1949 Geneva Conventions and to the 1977 Additional Protocols. However, expressions similar to ‘ensure respect’ in human rights treaties, in other provisions of the Geneva Conventions themselves, and in military manuals have been given an exclusive ‘individual-compliance’ meaning. Lists of measures available to contracting states against other contracting states deemed to be in breach of the Conventions have been suggested without investigation of whether such measures were per se lawful or unlawful and whether their adoption was legally required, or authorized, or merely recommended under common Article 1. Measures the adoption of which is expressly required or authorized by ad hoc provisions of the Geneva Conventions have been redundantly linked to Article 1. The phrase ‘in all circumstances’ too has a variety of meanings already found in ad hoc provisions other than Article 1. Ultimately, the purported ‘quasi-constitutional’ character of common Article 1 has proved a subject of speculation. Common Article 1 is a reminder of obligations, negative and positive, to ‘respect’ the Geneva Conventions (according to the general pacta sunt servanda rule) which has progressively been given the meaning of a mere recommendation to adopt lawful measures to induce transgressors to comply with the Conventions.
This systematic analysis of State complicity in international law focuses on the rules of State responsibility. Combining a theoretical perspective on complicity based on the concept of the international rule of law with a thorough analysis of international practice, Helmut Philipp Aust establishes what forms of support for wrongful conduct entail responsibility of complicit States and sheds light on the consequences of complicity in terms of reparation and implementation. Furthermore, he highlights how international law provides for varying degrees of responsibility in cases of complicity, depending on whether peremptory norms have been violated or special subject areas such as the law of collective security are involved. The book shows that the concept of State complicity is firmly grounded in international law, and that the international rule of law may serve as a conceptual paradigm for today's international legal order.
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