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Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?

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References

  1. The practice of targeted killings, used previously by Israel against Palestinians suspected of terrorism, has also been employed in the US-led war against terror: the example is the assassination of suspected Al Qaeda members in Yemen with a missile launched from an US Unmanned Aerial Vehicle in November 2002. On the question of legality of the use of this tactic see, e.g., A. Cassese, International law, 2nd edn. (Oxford, Oxford University Press 2005) pp. 420–423.

    Google Scholar 

  2. See, e.g., J. Mayer, ‘Outsourcing torture’, The New Yorker, 14 February 2005.

    Google Scholar 

  3. Swedish TV4 documentary, The broken promise, 17 May 2004, on the expulsion of two refugees to Egypt, ordered by the Swedish government and carried out on 18 December 2001 by hooded US agents. See Statewatch News Online, news releases of October 2004, available at <www.statewatch.org>.

  4. See, e.g., Amnesty International, One year after Abu Ghraib, torture continues, available at <web.amnesty.org/pages/irq-280405-feature-eng> (visited on 27 August 2005).

  5. See, e.g., Amnesty International, ‘Disappearances’ in the ‘war on terror’, available at <web.amnesty.org/pages/stoptorture-300805-news-eng> (visited on 27 August 2005) and AI report Torture and secret detention: Testimony of the ‘disappeared’ in the ‘war on terror’, available at <web.amnesty.org/library/index/engamr511082005> (visited on 27 August 2005).

  6. B. Simma, ‘How Distinctive Are Treaties Representing Collective Interest? The Case of Human Rights Treaties’, in V. Gowlland-Debbas, ed., Multilateral Treaty-Making: The Current Status of Challenges to and Reforms Needed in the International Legislative Process (The Hague, Martinus Nijhoff Publishers 2000) p. 87.

    Google Scholar 

  7. 1155 UNTS p. 331. The Convention entered into force on 27 January 1980.

  8. Banković and Others v. Belgium and 16 Other Contracting States, Application No. 52207/99, Admissibility Decision of 12 December 2001, 41 ILM (2002) p. 517.

  9. Background to the case and to the bombing of RTS station is outlined in paras. 6–13 of the Banković decision.

  10. The decision has been widely annotated. A summary of critical views on Banković may be found in G. Ress, ‘Problems of Extraterritorial Human Rights Violations — the Jurisdiction of the European Court of Human Rights: The Banković Case’, 12 Ital. YIL (2003) pp. 51–67; and G. Ress, ‘State Responsibility for Extraterritorial Human Rights Violations. The Case of Banković’, 6 Zeitschrift für Europarechtlichen Studien (2003) pp. 73–89.

    Google Scholar 

  11. Loizidou v. Turkey (Preliminary Objections), ECtHR 23 March 1995, Series A, Vol. 310, para. 62.

  12. Cyprus v. Turkey, Application No. 25781/94, ECtHR 10 May 2001, para. 77.

  13. Stocké v. Germany, Case No. 28/1989/188/248, ECtHR 12 October 1989, Series A, Vol. 199, 24, para. 166.

  14. Cyprus v. Turkey, Applications No. 6780/74 and 6950/75, ECommHR 26 May 1975, 2 DR (1975) p. 136.

  15. W.M. v. Denmark, Application No. 17392/90, ECommHR 14 October 1992, not reported.

  16. Soering v. The United Kingdom, Case No. 1/1989/161/217, ECtHR 7 July 1989, Series A, Vol. 161.

  17. For a more comprehensive analysis of the pre-Banković case law on Art. 1, see, e.g., R. Lawson, ‘Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights’, in F. Coomans and M. Kamminga, eds., Extraterritorial Application of Human Rights Treaties (Antwerp, Intersentia 2004) pp. 90–107.

    Google Scholar 

  18. Banković, supra n. 8, at paras. 59 and 61.

  19. Ibid., para. 62.

  20. Ibid., para. 63.

  21. See infra section 4.1.

  22. See infra text accompanying n. 40.

  23. Banković, supra n. 8, at para. 75.

  24. Öcalan v. Turkey (Merits), Application No. 46221/99, Chamber judgment of 12 March 2003.

  25. See, e.g., A. Clapham, ‘Symbiosis in International Human Rights Law: The Öcalan Case and the Evolving Law on the Death Sentence’, 1 Journal of International Criminal Justice (2003) pp. 475–489.

    Article  Google Scholar 

  26. Ilascu and Others v. Moldova and Russia (Merits), Application No. 48787/99, ECtHR 8 July 2004.

  27. Ibid., para. 3.

  28. Issa and Others v. Turkey, Application No. 31821/96, ECtHR 16 November 2004.

  29. Cf., Banković, supra n. 8, at paras. 59, 61 and 63.

  30. The relevant provisions of the VCLT read: ‘Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: a. Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; b. Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: a. Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; b. Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; c. Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: a. Leaves the meaning ambiguous or obscure; or b. Leads to a result which is manifestly absurd or unreasonable.’

  31. See, e.g., S. Rosenne, Practice and Methods of International Law (London, Oceana Publications 1984) p. 30.

    Google Scholar 

  32. P. Reuter, Introduction to the Law of Treaties (London, Pinter 1989) p. 74; S. Torres Bernárdes, ‘Interpretation of Treaties by the International Court of Justice Following the Adoption of the 1969 Vienna Convention on the Law of Treaties’, in G. Hafner, et al., Liber Amicorum Professor Seidl-Hohenveldern — in Honour of his 80th Birthday (The Hague, Kluwer Law International 1998) p. 721.

    Google Scholar 

  33. Confirmation of this view may be found in almost every recent decision of the International Court of Justice. See, e.g., Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ 9 July 2004, para. 94 (available at <www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm>). The gradual process of recognition by the ICJ of the customary nature of the Vienna Convention’s rules on treaty interpretation is described in Torres Bernárdes, op. cit. n. 32, at pp. 721–748.

  34. Other issues related to the methodology of the decision have been criticized by some commentators, such as the use of the Convention’s travaux préparatoires, or the Court’s refusal to adopt more evolutive (dynamic) interpretation of the concept of jurisdiction, which arguably could be justified by the object and purpose of the Convention. The possibility of dynamic interpretation was rejected in para. 65 of the decision on the basis that ‘the scope of Article 1, at issue in the present case, is determinative of the very scope of the Contracting Parties’ positive obligations and, as such, of the scope and reach of the entire Convention system of human rights’ protection as opposed to the question, under discussion in the Loizidou case (preliminary objections), of the competence of the Convention organs to examine a case. In any event, the extracts from the travaux préparatoires detailed above constitute a clear indication of the intended meaning of Article 1 of the Convention which cannot be ignored.’ However, the Vienna Convention rules of interpretation, from which the dynamic method arguably originates, do not differentiate between different methods of interpretation with regards to different types of provisions. Moreover, in the case law of the ECHR the dynamic method was used in relation to both substantive and procedural provisions.

  35. A. Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press 2000) p. 186; T.O. Elias, The Modern Law of Treaties (Dobbs Ferry, NY, Oceana Publications 1974) p. 74. See also ECtHR (1975) in Golder v. the United Kingdom (Merits and just satisfaction), Application No. 4451/70, 56 ILR 200, para. 30: ‘in the way in which it is presented in the general rule in Article 31 of the Vienna Convention, the process of interpretation of a treaty is a unity, a single combined operation; this rule, closely integrated, places on the same footing the various elements enumerated in the four paragraphs of the Article’.

    Google Scholar 

  36. On the notion of the object and purpose in the law of treaties see J. Klabbers, ‘Some Problems Regarding the Object and Purpose of Treaties’, 8 Finnish YIL (1997) pp. 138–160.

    Google Scholar 

  37. Soering, supra n. 16, at para. 86, quoted in Banković at para. 66.

  38. Klabbers, op. cit. n. 36, at pp. 151–152.

    Google Scholar 

  39. Banković, supra n. 8, at paras. 59–61.

  40. Ibid., paras. 46–53. See also Lawson, op. cit. n. 17, at pp. 107–108, 111, and Remarks of H. Hannum, in ‘Bombing for Peace: Collateral Damage and Human Rights’, 96 ASIL Proc. (2002) p. 98.

  41. F.A. Mann, ‘The Doctrine of Jurisdiction in International Law’, 111 Recueil des Cours (1964-I) p. 15.

    Google Scholar 

  42. R. Higgins, Problems and Process: International Law and How We Use It (Oxford, Clarendon Press 1994) p. 56.

    Google Scholar 

  43. See, e.g., case note by A. Rüth and M. Trilsch, in 97 AJIL (2003) pp. 167–172.

    Article  Google Scholar 

  44. Cf., López Burgos v. Uruguay, Case No. 52/79, UN Doc. A/36/40, p. 176, HRC 29 July 1981 and Öcalan, supra n. 24.

  45. Mann, op. cit. n. 41, at p. 9.

    Google Scholar 

  46. V. Lowe, ‘Jurisdiction’, in M.D. Evans, ed., International Law (Oxford, Oxford University Press 2003) p. 329.

    Google Scholar 

  47. Cf., M. Shaw, International Law, 6th edn. (Cambridge, Cambridge University Press 2003) p. 572: ‘Jurisdiction concerns the power of the state to affect people, property and circumstances and reflects the basic principles of state sovereignty, equality of states and non-interference in domestic affairs.’

    Book  Google Scholar 

  48. Higgins, op. cit. n. 42, at p. 56.

    Google Scholar 

  49. Mann, op. cit. n. 41, at p. 13.

    Google Scholar 

  50. Ibid., p. 16.

  51. Lowe, op. cit. n. 46, at p. 334.

    Google Scholar 

  52. O. Schachter, International Law in Theory and Practice (Dordrecht, Martinus Nijhoff Publishers 1991) p. 255.

    Google Scholar 

  53. Lowe, op. cit. n. 46, at p. 333.

    Google Scholar 

  54. Schachter, op. cit. n. 52, at p. 255.

    Google Scholar 

  55. Mann, op. cit. n. 41, at p. 128.

    Google Scholar 

  56. F.A. Mann, ‘The Doctrine of International Jurisdiction Revisited after Twenty Years’, 186 Recueil des Cours (1984-III) p. 34.

    Google Scholar 

  57. E.g., Dudgeon v. United Kingdom, ECtHR judgment of 22 October 1981, Series A, No. 45, p. 18, where the prohibition by law of homosexual acts in private between consenting individuals was held to constitute an interference with the right to respect for private life, although the legislation was not being enforced.

  58. E.g., a person absent from the territory of the State Party but tried in absentia.

  59. There is no doubt that the ECHR would be violated if state agents performed a political murder which would not necessarily be committed in execution of some law.

  60. Mann, op. cit. n. 41, at p. 46.

    Google Scholar 

  61. See, e.g., I. Brownlie, Principles of Public International Law, 6th edn. (Oxford, Oxford University Press 2004) pp. 297, 309. Also as regards the criminal jurisdiction Brownlie refers to some jurists who ‘with considerable justifications invoke a broad principle resting on some genuine and effective link between the crime and the state of the forum’; Lowe, op. cit. n. 46, at pp. 353, 336; Schachter, op. cit. 52, at p. 258.

    Google Scholar 

  62. See Lawson, M. Kamminga, eds., Extraterritorial Application of Human Rights Treaties (Antwerp, Intersentia 2004) op. cit. 17, at p. 104.

    Google Scholar 

  63. Ilascu, supra n. 26, at paras. 393–394.

  64. Ibid., para. 322.

  65. Ibid., para. 331.

  66. Ibid., para. 335.

  67. On the applicability of the Convention in the parts of national territory on which the government is prevented from exercising its authority see also Assanidze v. Georgia, Application No. 71503/01, ECtHR 8 April 2004.

  68. Ilascu, supra n. 26, at para. 334.

  69. Banković, supra n. 8, at para. 71.

  70. Ibid., para. 73.

  71. See infra.

  72. See Lawson, M. Kamminga, eds., Extraterritorial Application of Human Rights Treaties (Antwerp, Intersentia 2004) op. cit. n. 17, at p. 111.

    Google Scholar 

  73. Ilascu, supra n. 26, see in particular paras. 314–319.

  74. Ibid., para. 392.

  75. Öcalan, supra n. 24, at para. 93.

  76. Cf., Clapham, loc. cit. n. 25, at p. 480.

    Article  Google Scholar 

  77. See Öcalan, supra n. 24, at paras. 95–103.

  78. Issa, supra n. 28, at para. 74.

  79. Ibid., paras. 74–76, emphasis added.

  80. Ibid., paras. 81–82.

  81. Banković, supra n. 8, at para. 79.

  82. Ibid., para. 80.

  83. The view expressed, e.g., by the English High Court in Al-Skeini, see infra.

  84. See, e.g., Ress, ‘Problems of Extraterritorial Human Rights Violations’, op. cit. n. 10, at p. 63; Ress, ‘State Responsibility for Extraterritorial Human Rights Violations’, loc. cit. n. 10, at p. 84 (Judge Ress was himself a member of the Grand Chamber deciding Banković); M. O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life after Banković”’, in Coomans and Kamminga, op. cit. n. 17, at p. 137; and Lawson, op. cit. n. 17, at pp. 113–115.

    Google Scholar 

  85. See supra section 5.3.

  86. López Burgos, supra n. 44, at para. 12.3.

  87. Art. 2(1) of the ICCPR reads: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political opinion, national or social origin, property, birth or other status [emphasis added].’ Art. 1(1) of the AmCHR reads: ‘The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition [emphasis added].’ However, the bulk of case law of the Inter-American Commission on Human Rights on the subjects concerns the extraterritorial applicability of the American Declaration of Rights and Duties of Man, which does not contain a similar provision.

  88. See F. Coomans, ‘Some Remarks on the Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights’, in Coomans and Kamminga, op. cit. n. 17, at pp. 183–199.

    Google Scholar 

  89. The rules of treaty interpretation justify the references to interpretations of other human rights treaties. According to Art. 31(3)(c) VCLT, ‘[a]ny relevant rules of international law applicable in the relations between the parties’ should be taken into account in the interpretative process. These may of course include rules contained in other human rights treaties to which the relevant states are parties. Otherwise the interpretation of other human rights treaties by other supervisory bodies can be considered at least as supplementary means of interpretation, the list of which in Art. 32 VCLT is not exhaustive. The practice of human rights courts shows that they do invoke the case law of their counterparts.

  90. For more on extraterritorial application of the ICCPR see D. McGoldrick, ‘Extraterritorial Application of the International Covenant on Civil and Political Rights’, in Coomans and Kamminga, op. cit. n. 17, at pp. 41–72.

    Google Scholar 

  91. General Comment No. 31 [80], ‘Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, 26 May 2004, CCPR/C/21/Rev.1/Add.13.

  92. Ibid., para. 10.

  93. Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ 9 July 2004, supra n. 33.

  94. Ibid., paras. 107–113.

  95. Ibid., para. 109.

  96. Lopez Burgos, supra n. 44, Lilian Celiberti de Casariego v. Uruguay, No. 56/79, UN Doc. CCPR/C/OP/1, p. 92, HRC 29 July1984, and Montero v. Uruguay, UN Doc. A/38/40, p. 186, HRC 31 July 1981, and Concluding Observations on the Report of Israel, UN Doc. CCPR/C/79/Add.93.

  97. Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra n. 33, at para. 112.

  98. That provision deals with transitional measures in the case of any state which ‘at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge’.

  99. Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra n. 33, at para. 112.

  100. Ibid., para. 113.

  101. See C.M. Cerna, ‘Extraterritorial Application of the Human Rights Instruments of the Inter-American System’, in Coomans and Kamminga, op. cit. n. 17, at pp. 141–174.

    Google Scholar 

  102. Coard et al. v. United States, Case 10.951, Report No. 109/99, IACHR 29 September 1999, para. 37.

  103. Request for Precautionary Measures Concerning the Detainees at Guantánamo Bay, Cuba, IACHR 12 March 2002, 41 ILM (2002) p. 532.

  104. Ibid.

  105. In Rasul v. Bush et al. the US Supreme Court ruled that the US courts have jurisdiction to review the legality of detention of Guantánamo detainees. However, the judgment is based solely on the constitutional law of the US, and does not address at all the applicability of human rights treaty law. See Rasul et al. v. Bush, Case 03-334, US Supreme Court 28 June 2004.

  106. For the examples of the impact of Banković in national case law of the ECHR States Parties see Lawson, M. Kamminga, eds., Extraterritorial Application of Human Rights Treaties (Antwerp, Intersentia 2004) op. cit. n. 17, at pp. 116–118. See also Case 1 O 361/02 of the 1. Zivilkammer des Landsgerichts Bonn, available at <www.uni-kassel.de/fb10/frieden/themen/NATO-Krieg/varvarinurteil.html>.

    Google Scholar 

  107. R. (ex parte Mazin Jumaa Gatteh Al Skeini and others) v. Secretary of State for Defense [2004] EWHC 2911 (Admin). When the work on this article was being completed the case was pending in the Court of Appeal.

  108. Ibid., para. 248.

  109. Ibid., para. 275.

  110. Ibid., para. 277.

  111. Art. 19 ECHR.

  112. Al Skeini, supra n. 107, at para. 258.

  113. Ibid., para. 260.

  114. Ibid., para. 269.

  115. Ibid., para. 270.

  116. Ibid., para. 287.

  117. Ibid., para. 268.

  118. Ibid., para. 259.

  119. Banković, supra n. 8, at para. 73.

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  1. Faculty of Law, Maastricht University, Netherlands

    Michał Gondek LL M (Junior researcher at the Maastricht Centre for Human Rights)

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Correspondence to Michał Gondek LL M.

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I would like to thank Fons Coomans, Menno Kamminga and Enrico Milano for their helpful comments. I dedicate this article to the memory of my grandfather Ignacy Ciosek (1918–1994), a Polish slave labourer in Nazi Germany and survivor of Dachau concentration camp.

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Gondek, M. Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?. Neth Int Law Rev 52, 349–387 (2005). https://doi.org/10.1017/S0165070X05003499

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