Extraterritorial Application of ECHR

The Routledge Handbook on Extraterritorial Human Rights Obligations, 2021

Whilst logically plausible, the assertion that jurisdiction ratione loci of human rights treaties is restricted only to the territory of the State Party, and does not extend extraterritorially, is latently misleading, since it veneers the possibility that acts or omissions of organs of the State are attributable to the State as a possible source of responsibility regardless of whether they have been perpetrated in national or in foreign territory.This paper will venture to explain the extraterritorial application of human rights obligations under two heads, namely jurisdiction resulting from control over territory, and secondly jurisdiction resulting from control over persons.

This Article addresses different perspectives on the extra-territorial applicability of the European Convention on Human Rights (ECHR). Section 2 focuses on the different interpretations of the concept of State jurisdiction attempted by the Strasbourg Court and academics. Through the guidance of article 31 of the Vienna Convention on the Law of Treaties, a legal interpretation of the term ‘jurisdiction’ is suggested. A conception of ‘jurisdiction’ disconnected from territorial boundaries and focused on the relationship of power between the State and the individual seems required by the meaning of the term ‘jurisdiction’ in the context of human rights law, its coherence with the object and purpose of the ECHR, and its belonging to international human rights law. Section 3 questions some of the current philosophical understandings and groundings of human rights. Departing from the idea that the groundings of current theories justifying the extra-territorial applicability/non-applicability of the ECHR are not completely justified from a philosophical perspective, the present Article tries to propose different foundations. Through the works of Arendt and Levinas and critiques to cosmopolitanism, this Article suggests different foundations for the extra-territorial application of the ECHR, in harmony with and in support of the legal interpretation proposed in Section 2. Section 4 addresses some of the practical complications deriving from the extra-territorial application of the ECHR, such as the relationship between human rights and international humanitarian law, the relationship between human rights and Occupation Law, and the risk of human rights imperialism. In conclusion, an overall appraisal of the issues covered in this Article warrants a process of extra-territorial application of the ECHR based on an actual recognition of the human rights of the Other.

German Law Journal

This Article discusses the extraterritorial human rights obligations of states and proposes a new approach for conceptualizing them. While extraterritorial state obligations within the concept of state jurisdiction are indisputably recognized, a more comprehensive perspective beyond jurisdiction is generally lacking. This Article aims to fill that gap. First, it discusses the traditional notions of extraterritorial state obligations and demonstrates their weaknesses. Second, a new concept of extraterritorial state obligations borrowing elements from systems theory is then suggested. The Article argues that comprehensive and general extraterritorial state obligations mainly build upon the normative idea of human rights. Human rights have universal validity and prescribe obligations that are independent of the jurisdiction of a state. What matters is that states can violate human rights beyond their jurisdiction and can influence violations of human rights committed by other actors. F...

Leiden Journal of International Law, 2012

The extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresponding duties to those individuals. Examples of extraterritoriality abound in international human rights practice, and in particular in the European Court of Human Rights’ case law. Except for vague and often misleading gestures to the universality of human rights, which allegedly requires their extraterritorial application, however, many of the normative considerations underlying the extraterritorial applicability of human rights have not been broached in the human rights law literature. Nor, conversely, have human rights theorists, even among those who take the supply side of human rights seriously, devoted much attention to the thre...

Oxford University Press eBooks, 2018

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. M. GONDEK 350 NILR 2005 1. '[h]uman rights treaties do possess distinctive features: their legal regime can be said to differ in various regards from that of multilateral treaties whose obligations run (more) tangibly between the States parties. On the other hand, these differences are not as profound as some observers among the human rights community appear to think. In particular, human rights treaties do not constitute "self-contained regimes" decoupled from the general law of treaties and of State responsibility.' 6 As will be shown in this article, in the area of extraterritorial application of human rights treaties it is also perfectly possible to balance the characteristics and principles of the two branches of international law. <web.amnesty.org/pages/stoptorture-300805-news-eng> (visited on

Research Handbook on International Human Rights Law

Extraterritorial application of the International Covenant on Civil and Political Rights, paper by A.A. Ivanova, Belarusian State University, Minsk., 2019

The paper focuses on the specificity of extraterritorial applicability of the International Covenant on Civil and Political Rights. It states that throughout practice of judicial and quasi-judicial bodies extraterritorial application of the Covenant is expanding, depending on the special character of power over the enjoyment of human rights, which is exercised by State Parties outside national territory. This expansion is clearly shown in the paper, giving a coherent view on the issue and determining key problem areas.

Human Rights and International Legal Discourse, 2019

The obligation to protect individuals against human rights abuses by private and other ‘third’ parties is an accepted part of the tripartite human rights obligations’ classification. Ways of complying with this obligation are, however, not always clear, and some opposition has been voiced to it having reach beyond a state’s territorial border. This opposition is largely based on the reluctance of states to exercise their jurisdiction outside their territory. In this article, we address the content and reach of the human rights obligation to protect and how this relates to the exercise of jurisdiction to prevent human rights violations committed by private entities both within and beyond their home state’s territory. While the obligation to protect generally relates to the state’s obligation to regulate the conduct of any non-state actor, in this article we will use business enterprises as the actors in focus. The obligation to protect does not per se have a territorial limitation. The territorial limitation is brought in when the question of jurisdiction is added to the complexity. By addressing prescriptive jurisdiction, the article challenges the notion that jurisdiction in international human rights law is almost exclusively territorial, and argues that this is a misconception which results in many abuses of human rights that could have been addressed through regulation of conduct beyond a state’s border. Not tackling this misconception results in such conduct now being carried out with impunity. Consequently, the article argues that a restricted approach to jurisdiction is a barrier to full compliance with human rights obligations and questions whether this narrow approach is necessary and in line with other areas of regulation through international treaties.