Saturday, April 9, 2016

Extraterritorial Reach of the European Convention of Human Rights - Al-Skeini v. United Kingdom (2011) By Abdul Rehman Yasin

Extraterritorial Reach of the European Convention of Human Rights - Al-Skeini v. United Kingdom (2011).


Table of Content                                                        Page no.1  

1)    Introduction                                                                                   Page no.2
a)    Jurisdiction and positive obligations                                            Page no.3

2)    Territorial criteria for extraterritorial jurisdiction                  Page no.3

3)    Claims for extraterritorial jurisdiction before Al-Skeini       Page no.5

4)    Al-Skeini and others v UK [2011]                                                Page no.8
a)    Facts                                                                                                             Page no.8
b)   Claim                                                                                                           Page no.8
c)    Decision by the House of Lords [HOL] UK                                         Page no.9
d)   Arguments from the parties before the ECtHR                                  Page no.9
i)     The British Government                                                                    Page no.9
ii)   The Claimants                                                                                    Page no.10
e)    ECtHR’s Judgement in AL-Skeini                                                        Page no.11
f)     Scrutiny of the decision                                                                Page no.13

5)    The Future, Case law after AL-Skeini                                      Page no.13

6)    Conclusion                                                                                    Page no.15

7)    Bibliography                                                                                Page no.16

1)    Introduction

The case of Al-Skeini v. United Kingdom (2011)[1], settled by the Grand Chamber of the European Court of Human Rights [ECtHR] concerned itself with a radical ruling on the jurisdiction of European Convention [“European Convention for Human Rights,” “Convention,” or “ECHR”] rights in regions outside of Europe. In the process, the courts attempted to settle the conflicts regarding the application of ECHR rights in this area by reviewing the notions of jurisdiction under the ECHR convention and by exploring and defining those exceptional circumstances where the availability of convention rights was warranted; outside the borders of member states and European territories.
Generally, most obligations set in international and regional human rights instruments have been thought of as having a very strict territorial scope.  Member states are under a duty to ensure the rights held in the treaties for all individuals within their territories. Furthermore, customary international law obliges states to at minimally guarantee a core of human rights.
The territorial reach of these obligations seems to have been expanded by way of interpretation. The extraterritorial application of convention rights has been an antagonistic subject since the European Court of Human Rights [ECtHR] decisions in Banković v. Belgium [2001][2], where the court blatantly denied recourse to rights enshrined in the ECHR to be applied outside of member state territories. 
However, the decision in Al-Skeini explains the argumentative concept of jurisdiction as laid down in Article 1 of the ECHR, which provides ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’[3] By this, the founding member states to the ECHR, referred to the concept of ‘within their jurisdiction’ rather than ‘territorial jurisdiction’ which is a far greater commitment to the application of convention rights and secondly, it implies that Member States could be obliged to safeguard Convention rights also out­side their territories. Nevertheless the court regrettably, failed to explain the exact parameters of the extraterritorial reach of these rights and as the result; undesirably, the scope of these rights still remain unclear even after the decision in Al-Skeini.

a)     Jurisdiction and positive obligations

The primary issue for investigation is the possibility of extraterritorial application of ECHR rights and whether under what circumstances and conditions would member states be obliged to follow such obligations. The first observation lays its emphasis on the fact that the so called ‘jurisdiction’ mentioned in Article 1 ECHR does not refers to the Court of Human Rights ability to arbitrate and adjudicate but rather it institutes the ‘jurisdiction of the state’ (over territories and/or persons), which conversely gives rise to human rights obligations under the ECHR, extraterritorially. Thus, we can safely presume that where jurisdiction would lie; rights would arise.
So, the meaning of jurisdiction is central to this investigation and derivatively when a member states’ agents i.e. the armed forces etc. act on some other states territories then there arises a dire need to establish jurisdiction, in order for an examination of any liability which may be incurred for breaches under the convention. The case law of the ECtHR provides an array of mixed decisions in this regard, leaving the law in a perilous state.


2)    Territorial criteria for extraterritorial jurisdiction

Prior to Al-Skeini, the law concerning extra territorial application of convention rights was based on Bankovic vs. Belgium [2001][4]. This case was the contention against the violation of the right to life guaranteed under Article 1 of ECHR; by the victims of the NATO [North Atlantic Treaty Organization] aerial bombardments raids during 1999 in Kosovo, Federal Republic of Yugoslavia or Serbia. The Court was hesitant in accepting the extraterritorial application of the ECHR in the case and said:
‘It is [...] difficult to contend that a failure to accept the extra-territorial jurisdiction of the respondent States would fall foul of the Convention’s ordre public objective, which itself underlines the essentially regional vocation of the Convention system. [...] In short, the Convention is a multi-lateral treaty operating […] in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The [Federal Republic of Yugoslavia] clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accord­ingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favor of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.’[5]
As per Article 1 of the ECHR, a state party is under a duty to provide fundamental rights and freedoms to all individuals who are said to be within its jurisdiction, rather its territories. The extraterritorial exercise of jurisdiction is unique in nature, and is rather based on the principle of "overall effective control" than ‘territorial jurisdiction’ issued in Loizidou v. Turkey [1996][6].
However the court sustained its favour for territorial application in Bankovic, which concerned the death of 16 people caused by NATO’s aerial campaign. The victims claimed that the states involved in the bombardments were in violation of Article 2, 10 and 13 of the ECHR and affirmed that by having complete and absolute control of the airspace over Serbia, NATO and its member states were responsible to the victims, who fell within the member states’ jurisdiction; and thus within the meaning of Article 1 of the Convention.
The respondents denied any claims by victims and stressed the importance of territorial effect and nature of jurisdiction. Furthermore, they excluded the claim that jurisdiction could be established by virtue of their total control over the airspace of Serbia. In addition, the respondents declared that all acts performed under NATO command and control, were performed in a state not party to the ECHR convention, i.e. thus any rights rising could not possibly be ascribed to the victims.
The court presumed that it was quintessential for it to determine whether the victims fell within the member states jurisdiction by virtue of an extraterritorial act. Stressing that such an act would be dependent upon an establishment of ‘Effective Control’ over the relevant territories and its inhabitants as a consequence of either military occupation, consent, request or compliance of the government of the state in question; consequently the court disallowed the case.  Additionally, the court said that the European convention is not a treaty which applies worldwide, like the UDHR, rather it is a regional arrangement aimed at a specific region, namely Europe and its legal space; to which Serbia was not a party.[7] The Court said that:
Had the drafters of the Convention wished to ensure jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the same as or similar to the contemporaneous Articles 1 of the four Geneva Conventions of 1949’[8]
The court gave its decision, in light of the Vienna Convention on the Law of Treaties 1969[9], and declared that the:
Jurisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extraterritorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States”. [10]
In conclusion the court said that extraterritorial claims for jurisdiction are the exception rather than the general rule of practice and would require special justifications for their application.


3)    Claims for extraterritorial jurisdiction before Al-Skeini

Although, the territorial interpretation for jurisdiction adopted by the ECtHR has been profoundly disapproved because of its rather questionable and debateable assumption that jurisdiction under the convention is primarily territorial; it plain disregard for the differences between ‘prescriptive and enforcement’ forms of jurisdiction under general principles of International law. Furthermore, the court in its own previous ruling in Loizidou v. Turkey [1996] implemented itself the ‘control and authority over territory and people’ model and stated that:
Although Article 1 (art. 1) sets limits on the reach of the Convention, the concept of ‘jurisdiction’ under this provision is not restricted to the national territory of the High Contracting Parties. […] Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action - whether lawful or unlawful - it exercises effective control of an area outside its national territory.”[11]
Moreover, the ‘effective overall control’ test was reaffirmed in Cyprus v. Turkey[2001][12], where the grounds for asserting jurisdiction was Turkey’s effective exercise of overall control over Cyprus’ northern territories. The case concerned the conduct of Turkish military operations in northern Cyprus during 1974. The “Turkish Republic of Northern Cyprus” [TRNC] issued a proclamation of independence; Cyprus claimed that the TRNC was an illegal entity under international law and in consequence Turkey was to be held accountable for a wide range of ECHR violation which took place over there. On the other hand, Turkey argued that it was not responsible for the acts as TRNC was a politically independent entity from Turkey.
The court held that the scope of Turkey’s responsibility, not only included the actions for its officials and military but also extended to the local administration which it left behind, namely the TRNC, which was supported by the Turkish military. Reinforcing, the rule of effective control, the court held that Turkey had jurisdiction under the convention.9
Similarly in Ilaşcu and others v. Moldova and Russia [2004][13] where actions taken by the authorities of the Moldovian Republic of Transnistria (‘MRT’), a governing party of Moldova; were found to fall under simultaneous jurisdiction of Moldova and Russia. The MRT was proved factually to be under the ‘effective authority’ of the Russia, thus establishing jurisdiction. On the other hand, Moldova’s jurisdiction was affirmed despite of its total failure to exercise any control over its own territory, which was under the control of the MRT. This is why, Abdel-Monem in his investigations, seems to suggest that ‘factual control over an area’ is the foundational factor for state jurisdiction.[14]
Therefore, it seems that the Courts assertion in Banković seems to work contrary to the conclusions in the Cyprus and Transnistria cases; and maintaining that Banković concerned itself with territories in the espace juridique of the ECHR and preserving that the special personality of the convention is as an apparatus of European public order (ordre public)”[15]. Interestingly, the espace juridique restraint is not an irrefutable superseding principle for establishing state jurisdiction; this was confirmed in Issa and Others v. Turkey [2004][16].
The applicants were Iraqi nationals from the northern province of Iraq which bordered with Turkey. According to their application, they claimed that the Turkish soldiers carrying out military operations in the area, allegedly attacked and injured them. After, the Turkish military withdrew from the area, the bodies of those nationals were found mutilated and with gunshot injuries.
The court in its deliberations, reiterated the concept that jurisdiction under the ECHR was not limited to the national territories of the member states. Rather, the court said, in special circumstance, actions of member states performed outside their territories or those which have an intense effect on non-member state territories, may amount to a finding of jurisdiction. The court additionally noted that member states could be held accountable in such situations; because of the obligation under Article 1 of the ECHR.
The court further said that the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory[17].
However, the court was not able to gather enough evidence as to the cause of death of the victims; whether the claimants relatives had been factual been killed by the gunshots from the Turkish military or not. In, Al-Saadoon and Mufdhi v. the United Kingdom [2009][18], the court affirmed the perception of territorial control.  The applicants were arrested, following the invasion of Iraq by the International coalition of armed forces. The applicants were charged with suspicion of violence against the coalition forces and murder of two British soldier; they were held at British detention facilities.
The court found the United Kingdom authorities had exclusive and total control, first by the exercise of military force and by law over and above the detention facilities where the applicants were held. Thus, the court found that the applicants were factual within UK’s jurisdiction until their physical transfer to the Iraqi authorities.


4)    Al-Skeini and others v UK [2011] [19]

a)     Facts

The United States and its coalition forces led an invasion of Iraq on March 2003; and in the process, the British forces had taken over the city of Basrah by April 2003, and declared that major operations in Iraq had been completed thus turning their efforts towards reconstruction. In May 2003, the coalition partners created the Coalition Provisional Authority (CPA) to serve as a provisional quasi-governmental executive organisation with law-making authority until the establishment of an independent Iraqi government system. As per the CPA, Iraq’s regions were divided amongst the coalition forces, with Southern Iraq in British control and administration. However, by June, 2004 an Interim Government of Iraq was created which assumed the control of all of Iraq; even still a large number of coalition forces still remained within Iraq by the request of the Iraqi government and pursuant to United Nations Security Council authorization.[20] From the period of May 1, 2003 to June 28, 2004, by way of a UN Security Council Resolution, the UK was accepted as being the occupying power of southern Iraq “where British troops exercised sufficient authority for this purpose”, as concluded by Brooke LJ.[21] During occupation, the British forces were liable for upholding security, assisting civil administration and was in charge for the reestablishment of the Iraqi Police and security forces.[22]

b)    Claim
Six plaintiffs claimed for the deaths of their civilian relatives which took place during British occupation of Basrah in southern Iraq. The first five victims were claimed to have been killed by British troops on patrol; while the sixth victim, Baha Mousa, was claimed to have been arrested and detained at a British military base; with allegations of serious misconduct and abuse, Baha Mousa was found to have 93 identifiable injuries on his body and to have died of asphyxiation.” [23]

c)     Decision by the House of Lords [HOL] UK

HOL hearing the case, applied the principles enshrined in Bankovic and refused to allow the victims to claim ECHR rights except for the application of the sixth victim, Baha Mousa who was killed in British detainment[24]. The HOL reiterated the view of territorial model of jurisdiction and affirmed that ECHR rights do not apply outside of espace juridique, and even if we were to suppose that it did on a unique basis, UK was found not to have effective control over the Basrah area.[25]7 On the other hand, Baha Mousa, was held to fall inside of UK’s jurisdiction because a military detention facility was argued to have a distinctive status, next to a consulate.[26]
Subsequent to the HOL’s decision, all six applicants appealed to the ECtHR alleging that the victims fell within UKs jurisdiction and furthermore UK was in violation of its duty under Article 2 of ECHR; by not investigating the death of the victims.[27]

d)    Arguments from the parties before the Grand Chamber of the ECtHR

i)      The British Government
The British government argued for the application of the Banković principle; and for Article 1 jurisdiction to apply, ‘effective control of an area’ was a prerequisite.[28] They further argued that Banković principle provided that the ECHR convention was a treaty operating essentially under regional framework and exclusively within the legal territory or ‘espace juridique’ of the member states.[29] Thus, because the territory of Iraq fell outside the conventions legal space, the government argued, as a result jurisdiction could not be established here, extraterritorially. And, if the court was to find that Iraq fell into the conventions legal space, then the British government argued that they lacked “effective control” of the area, namely Basrah, to any coherent evaluation; as during their occupation[30]. They were confronted with meticulous challenges to reinstate order and security, essential to reinstitute the Iraqi self-government; notably, UK government also placed burden on the US-led CPA, rather than itself to be the commanding and governing body, during the occupation. [31]

ii)    The Claimants

Although, accepting that the authority of Article 1 is primarily territorial, the claimants opposed that pervious case law of the ECtHR, which recognized that there are two different models of jurisdiction, namely “State agent authority” and “effective control of an area”; neither of which the court has expressly ruled out. The claimants said that the “State agent authority model” had been recognized in previous case law, where the Commission held that “authorised agents of the State . . . not only remain under its jurisdiction when abroad but bring any other persons or property ‘within the jurisdiction’ of that State, to the extent that they exercise authority over such persons or property.[32]

In fact, they claimed that in Loizidou v. Turkey, the court employed the use of both the models equally.[33] According, the claimant said that there exist no ECtHR case law which disregards the use of “State agent authority” model to attach itself to the direct actions of the military in charge exercising state authority.[34] Thus, the court could possibly find jurisdiction, under this model, by virtue of the control and authority exercised by UKs agents at the time of the victims’ deaths. Conversely, they also argued for the “effective control of an area” model, as UK they claimed was effectively in control of Iraq’s South-eastern territories, at the time. And, they argued that it would be very easy, in such situations, for member states to escape liability for actions, if the governments were to incur liability only where a claimant could show that they exercised complete control, as they are expected to show in their own territories, over the region.[35]


e)     ECtHR’s Judgement in AL-Skeini

The Grand Chamber endorsed that jurisdiction under the ECHR convention was territorial in nature, but also stressed that actions of member states which occur or have effects outside of their respective territories, could in exceptional circumstance constitute a finding of jurisdiction under the meaning of Article 1 ECHR. [36] 
Firstly, the court acknowledged the “State agent authority” model of jurisdiction to have legal standing in certain situations, thus reasoned that Article 1 jurisdiction clearly extended extraterritorially to the acts of diplomatic and consular agents in foreign territory when they “exert authority and control over others”. Similarly, the court accepted the rationale that extraterritorial use of force by a member state’s agents against an individual, especially where an individual is taken into custody by military force in a foreign country, could bring that individual under the member states jurisdiction under Article 1 ECHR.[37] However, the court limited this exception, to circumstance where member state’s agent implemented physical command and control over the individual in question; and thus placed a positive duty upon member states agents to secure the rights of the individual under the convention.[38]
The court accepted the first key exception, where a member states jurisdiction under Article 1, would be extended extraterritorially, upon the actions of its agents; who through the consent, invitation or acquiescence of the Government of that territory exercise all or some of the public powers normally to be exercised by that [consenting] Government.[39]
Paradoxically, the court then went on to validate the “effective control of an area” model, paving the way for the second main exception to territorial jurisdiction under the convention. The court, in this regard, concluded that where the occupying member state has gained territorial dominance, it is unnecessary to prove details of control over policies and local administration. Rather, the member state is obliged under Article 1 to maintain convention rights within its area of control.[40]
Secondly, and more importantly, the court categorically, in the face of the Governments defence, dismissed the idea that jurisdiction could not in any way, extend out of the borders of the European legal space or ‘espace juridique’.[41]
Finally, the court found that during the occupation the UK and US presumed some form of public controls expected to be implemented by an Iraqi independent government. The UK, specifically had the responsibility of maintaining security in South-eastern Iraq; this generated a “jurisdictional link” between the claimants and UK, for the purposes of Article 1.[42] Furthermore, it said that because the UK held jurisdiction over all the victims, it was under a duty to start an effective official investigation in to the victims’ deaths, as per Article 2, which it breached due to its failure.[43] Additionally, it noted that for any such investigation to be real in any way, individuals “independent from those implicated in the events” are needed, to conduct them. [44]
The court with regard to the first five claimants found that UK was in procedural violation under Article 2,[45] and found no procedural impropriety into the sixth victim as a transparent public inquiry was conducted in to the circumstance surrounding his death.

f)      Scrutiny of the decision

The Grand Chamber in its decision, presented a fusion of both the “State agent authority” and “effective control of an area” models, in the process reinforcing their principles , but in fact created a third hybrid model, which incorporates the finest aspects of both rules. The court chose to apply the “State agent authority” model to all the six victims, in Al-Skeini, at the same time called the outcome “exceptional” because of UKs control of “public powers” in Iraq; and only extending the principle to apply in situations where the member state by force exercises some albeit, unstructured “public powers.”[46]
It must be kept in mind, that the court acknowledged the fact of the anarchistic state of affairs which existed in Iraq at the time, which restricted UK from satisfying its procedural commitments, intended for peace time implementation. And, this consideration was in the courts’ contemplation, thereby demonstrated their reluctance  installing unachievable procedural demands of a government which is busy trying to stabilize the security situation of the region.[47] It must be noted that the HOL in its deliberation, also gave weight to these very same policy concerns:
Like the ECtHR in Banković, the House of Lords in Al-Skeini did not want to open the floodgates of litigation [under the “State agent authority” argument] by considering every individual against whom force was used as falling under the protection of the Convention. They did not want to micromanage the use of force in the field, especially when some of the killings in question may even have been justified.”[48]


5)    The Future, Case law after AL-Skeini

The Grand Chambers decision in Al-Skeini has left a paradigm of unexplained queries, primarily the exact scope of the procedural obligation owed by occupying member state is still shrouded in mystery. Secondly, the court provided limited insight into the procedural aspects of Article 2, and left unanswered as to how the ECHR convention would apply side by side an international humanitarian law treaty.[49]
In Al-Jedda v. the United Kingdom [2011][50], the Grand Chamber sought to answer this very question. The case concerned a British run detention facility which interned an Iraqi citizen for over three years, in Basrah. The British government argued that the UN and not UK government, was responsible for the claimant’s internment. The court, universally rejected this argument and noted that by March 2003, the beginning of the invasion of Iraq, there existed no UN Security council (UNSC) resolution empowering allocation of governmental roles in Iraq, if the regime in power was toppled. By, May 2003, both the UK and US had assumed control over the security aspects, while the UN was busy with humanitarian relief and reconstruction; but had no role whatsoever in the security of the region. The court found that as the UNSC had no control nor any authority over the actions of the military forces and the detention facilities in Basrah; where detained the claimant, thus, the imprisonment could not possibly be attributable to the UN authorities. The court seems to agree with the decision of the HOL that the claimant’s detention was under UKs jurisdiction for the purposes of Article 1 of the ECHR.
Finally, it remained a question of speculation, as to how the court would ensue a case with “opposite Al-Skeini situation,” whereby a U.K. combatant might bring proceedings to invoke rights under the convention against his own regime.[51] However, such a situation did arise in Smith (and others) v MOD [2013][52], where the UK Supreme Court had to determine that whether its government could be said to have had jurisdiction over its troops killed while in service in Iraq. Article 1 of the ECHR places a burden upon member states to safeguard rights and freedoms of those which are said to be within their jurisdiction. The applicant alleged that no reasonable steps were taken by the state to protect the lives of its troops in lightly armed vehicles against improvised explosive devices (‘IEDs’) which caused the deaths in the current case. For such a claim to come about, the applicant had to prove that the UK government had authority and the convention applied extraterritorially.
Delivering the judgement, Lord Hope reiterated the rule of law and suggested that according to Bankovic such claims would be restricted to situations where the authoritative state has the power to exercise sufficient control i.e. ‘public powers’; in order for member states to provide convention rights in the territory. The court then, said that at the time of the death of the troops by the IED, the UK was no longer exercising ‘public powers’ in the region ;as it had in Al-Skeini, and the local administration of the region had passed on to the interim Iraqi government. Despite these findings, the UK Supreme Court found extraterritorial jurisdiction and held the government liable. The court decided to follow this line of reasoning, because at the time of the victim’s deaths UK exercised command and control over the victims, through a proper chain of military command.
This case demonstrates the willingness of the court to go to lengths in order to ensure that human rights duties are fulfilled by member states; and are not assumed to be “casual and approximate depending on geographical co-ordinates”[53] in the words of Judge Bonello Al-Skeini v UK. This serves in the advancement of the supremacy of human rights jurisprudence, whenever and wherever a member state chooses to affirm its power.  


6)    Conclusion

It seems that member states are under a positive duty to ensure the enforcement of convention rights ‘within their jurisdiction’, as per Article 1 of the ECHR. The European Court, in Bankovic, followed a constricting interpretation of jurisdiction, limited to member states territories and its extraterritorial application restricted under very rare circumstance. However, further analysis shows that the court since has actively been engaged in finding a claim for jurisdiction where it deems justified. It follows the line of international law and accepts that the concept of jurisdiction is a flexible one, not necessarily limited to states own territories. Even though there exists an array of case law before and after AL-Skeini, this critique shows that this area of law need reforms as questions still remain unanswered; e.g. the exact procedural scope of this extraterritorial jurisdiction. It reiterates the idea that the globalization of member states affairs would appear as an intense challenge to the enforcement human rights, if the dogmas of jurisdiction are restricted to member state territories. Furthermore, there exists a need for the doctrine of jurisdiction to be more streamlined with the general principals of international law.

[4600 words approx.]


Bibliography


Books  

·       Extraterritorial Application Of Human Rights Treaties” by Fons Coomans and Menno T. Kamminga [2004]

·       “The European Convention on Human Rights: Collected Essays” by Loukis G. Loucaides [2007]

·       “Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy” by Marko Milanovic [2011]

·       “The Extraterritorial Application of Selected Human Rights Treaties” by Karen da Costa [2012]

Articles

·       ‘How Far Do the Lawless Areas of Europe Extend? Extraterritorial Application of the European Convention on Human Rights’, Abdel-Monem (2005), 14 Journal of Transnational Law and Policy.

·       Beyond Bankovic: Extraterritorial Application of the European Convention on Human Rights by Dr. Federico Sperotto [2006].

·       Human rights litigation and the ‘war on terror’ by Helen Duffy [2008].

·       Extraterritorial Application of the European Convention on Human Rights and the Access to the Court for Victims of Human Rights Violations of ESDP Missions by Markus Mayr in BSIS Journal of International Studies, Vol 7 (2010).

·       Clarifying the Extraterritorial Application of the European Convention on Human Rights -Al-Skeini and others v United Kingdom App No 55721/07 (ECtHR, 7 July 2011) by Cedric Ryngaert [2012].

·       Marko Milanovic, Al-Skeini and Al-Jedda in Strasbourg, 23 Eur. J. Int’l L (2012)

·       Al-Skeini v. United Kingdom and Extraterritorial Jurisdiction under the European Convention for Human Rights by Samantha Miko [2013].

·       Extra-territorial jurisdiction of States Parties to the European Convention on Human Rights – ECtHR factsheet – March 2014.







[1] Al-Skeini v. United Kingdom, App. No. 55721/07, 53 Eur. H.R. Rep. 589 (2011).

[2] Decision as to the admissibility of Application no. 52207/99 of 12 December 2001 (Grand Chamber) in the case Bankovic and Others v. Belgium and 16 Other Contracting States - http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-22099#{%22itemid%22:[%22001-22099%22]}

[3] Article 1 of the European Convention of Human Rights 1950 - http://www.hri.org/docs/ECHR50.html#C.Art1

[4] Decision as to the admissibility of Application no. 52207/99 of 12 December 2001 (Grand Chamber) in the case Bankovic and Others v. Belgium and 16 Other Contracting States - http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-22099#{%22itemid%22:[%22001-22099%22]}

[5] Bankovic and others v Belgium and Others Appl No 52207/99 (ECtHR, 12 December 2001), para 80.

[7] ECtHR, Bankovic para.80

[8] ECtHR, Bankovic para.75

[9] Vienna Convention on the Law of Treaties 1969 - http://www.jus.uio.no/lm/un.law.of.treaties.convention.1969/

[10] ECtHR, Bankovic para.59
[11] ECtHR (1995), Loizidou v. Turkey para. 62

[14] Abdel-Monem (2005), ‘How Far Do the Lawless Areas of Europe Extend? Extraterritorial Application of the European Convention on Human Rights’, 14 Journal of Transnational Law and Policy 159, 181. 

[15] ECtHR, Bankovic, supra note 9, at para. 78

[17] Issa and Others v. Turkey [2004], para. 71

[20] Al-Skeini and others v UK [2011], para. 148

[21] Al-Skeini and others v UK [2011], Brooke LJ at para. 119

[22] Al-Skeini and others v UK [2011], Para. 11

[23] Al-Skeini and others v UK [2011], Para. 66

[24] R (Al-Skeini) v Secretary of State for Defence (2007) UKHL - paras 65-66 (per Lord Rodger), paras 109, 127 (per Lord Brown), para 90 (per Baroness Hale), Para 97 (Lord Carswell). - http://www.bailii.org/uk/cases/UKHL/2007/26.html

[25] R (Al-Skeini) v Secretary of State for Defence (2007) UKHL - Paras 78-79 (per Lord Rodger), Para 83 (per Lord Rodger).

[26] R (Al-Skeini) v Secretary of State for Defence (2007) UKHL - Para 97 (per Lord Carswell), Para 132 (per Lord Brown).

[27] Al-Skeini and others v UK [2011] - Para 636.

[28] Al-Skeini and others v UK [2011] Para. 639, 642.

[29] Al-Skeini and others v UK [2011] Para. 639 [quoting Banković]

[30] Al-Skeini and others v UK [2011] Para. 640. [The Government argued that it lacked effective control]

[31] Al-Skeini and others v UK [2011] Para. 606-607

[32] Cyprus v. Turkey [2001], Para. 136.

[33] Al-Skeini and others v UK [2011], Para. 644.

[34] Al-Skeini and others v UK [2011], Para. 643-644.

[35] Al-Skeini and others v UK [2011], Para. 645.

[36] Al-Skeini and others v UK [2011], Para. 647.

[37] Al-Skeini and others v UK [2011], Para. 648.

[38] Al-Skeini, 53 Eur. H.R. Rep. Para. 648.

[39] Al-Skeini, 53 Eur. H.R. Rep. Para. 647.

[40] Al-Skeini, 53 Eur. H.R. Rep. Para. 647–48.

[41] Al-Skeini, 53 Eur. H.R. Rep. Para. 649–50.

[42] Al-Skeini, 53 Eur. H.R. Rep. Para. 651.

[43] Al-Skeini, 53 Eur. H.R. Rep. Para. 655-56.

[44] Al-Skeini, 53 Eur. H.R. Rep. Para. 657.

[45] Al-Skeini, 53 Eur. H.R. Rep. Para. 660.

[46] Marko Milanovic, Al-Skeini and Al-Jedda in Strasbourg, 23 Eur. J. Int’l L (2012) – at 130–31.

[47] Al-Skeini, 53 Eur. H.R. Rep. Para. 655 and 657.

[48] Marko Milanovic, Al-Skeini and Al-Jedda in Strasbourg, 23 Eur. J. Int’l L (2012) – at 127.
[49] Marko Milanovic, Al-Skeini and Al-Jedda in Strasbourg, 23 Eur. J. Int’l L (2012) – at 132.

[51] Marko Milanovic, Al-Skeini and Al-Jedda in Strasbourg, 23 Eur. J. Int’l L (2012) – at 133.

[52] Smith (and Others) v MOD [2013] UKSC - http://www.bailii.org/uk/cases/UKSC/2013/41.html

[53] Al-Skeini and others v UK [2011], Para. 18.

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