The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to

Abstract

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 threshold criteria for the abstract recognition of human rights and the trigger of the corresponding duties. To remedy some of those shortcomings, this article endeavours to bring some normative human rights theorizing to bear on the European Court of Human Rights' recent practice on extraterritoriality. More specifically, the article delves deeper into the notion of 'jurisdiction' qua threshold criterion for the applicability of the European Convention on Human Rights both within and outside its states parties' territories; distinguishes it from related notions such as authority, coercion, power, or control; and explains its normative consequences.

An Analysis of the Adequacy of Protection Afforded by the Convention on the Rights of Persons with Disabilities (CRPD) in Situations of Armed Conflict

“…Secondly, the above continuity stimulates the use of models of disability as a means of investigating whether a trend of expecting states to concurrently comply with protective obligations from both legal regimes is either complementing, or compromising, the protection that those states are rendering to persons with disabilities in situations of armed conflict [34,37,305] Arguably, in times of armed conflict, the proposed APIV of IHL would cover situations which the CRPD is unlikely to address [270,306], in which case the study has noted the need for complementarity with a view to supporting the implementation of IHRL treaties (such as the CRPD) where IHL is silent or inadequate, and vice versa [307].…”

“…More comprehensive work on problems of reservations in relation to human rights treaties as elaborated by the International Law Commission (ILC) whose details are contained in the Guide to Practice on Reservations to Treaties [268,269]. It is unacceptable for a reservation to defeat the essence of the treaty [270]. In that case, it is worthwhile mentioning that reservations have in some circles emerged as a subject of criticism due to the discontent they might cause in enhancing effective compliance with human rights treaties as noted from ICJ's advisory opinion on reservations against the Genocide Convention [271].…”

The Common Core between Human Rights Law and International Criminal Law: A Structural Account

“…To explain this extension of the regime, recent scholarship precisely suggests exploring the relation between the right‐holder and the duty‐holder. As Samantha Besson forcefully puts it, the ground for extending jurisdiction extraterritorially can only be relational: “The relational nature of jurisdiction between a subject and the authority needs to be stressed, as it corresponds to the relational nature between a right‐holder and a duty‐bearer” (Besson , 863). Besson's insight is here crucial.…”

Towards a Legal Turn in the Ethics of Immigration

“…67 This implies that the application is to be assessed and decided upon as an EU-internal matter and according to the relevant EU legal norms (and relevant national norms). As soon as this specific relation is established and with respect to the points concerned by this relation -meaning, in legal terms, that jurisdiction is triggered 68 -the decision taken by a public authority should respect the principle of proportionality in order to respect the person's freedom (as shown in the second step of the argument).…”