Jurisdiction in International Human Rights Law: Application of the European Convention to Soldiers Deployed Overseas

Abstract

Jurisdiction has a specific meaning in public international law. As an instrument of regulating interstate relationships, the laws of jurisdiction ensure mutual respect of sovereignty by largely limiting the lawful reach of states' power to their own territoriesterritory being an important concept in notions of statehood and sovereignty. Jurisdiction also appears in human rights law. However, it has been given an altogether different interpretation by human rights treaty bodies. The European Convention on Human Rights obliges states parties to secure and ensure the Convention rights to everyone within their jurisdiction. But what does jurisdiction mean in this sense? In its jurisprudence, the European Court of Human Rights has adopted a number of different conceptions of jurisdiction, ranging from the position in Banković that closely resembled the public international law limitation to territory; to the Al-Skeini judgment that a state's jurisdiction for the purposes of the Convention extends to anyone under the authority and control of its agents. In this article, I shall examine the European Court's jurisprudence, exploring the different approaches adopted in a number of key cases. The article also analyses the UK Supreme Court's approach to the meaning of 'authority and control' as it relates to British soldiers deployed overseas. Finally, the article discusses the implications of the human rights notion of jurisdiction without territory.