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.
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.
[6] Loizidou v Turkey judgment of 18
December 1996 - http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58007#{%22itemid%22:[%22001-58007%22]}
[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/
[11] ECtHR
(1995), Loizidou v. Turkey para. 62
[12] Cyprus
v. Turkey[2001] - http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59454#{%22itemid%22:[%22001-59454%22]}
[13] Ilaşcu
and others v. Moldova and Russia
[2004] - http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-61886#{%22itemid%22:[%22001-61886%22]}
[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
[16] Issa and Others v. Turkey [2004] - http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-67460#{%22itemid%22:[%22001-67460%22]}
[17] Issa and Others v. Turkey [2004], para.
71
[18] Al-Saadoon
and Mufdhi v. the United Kingdom [2009]
- http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-97575#{%22itemid%22:[%22001-97575%22]}
[19] Al-Skeini and others v UK [2011] - http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-105606#{%22itemid%22:[%22001-105606%22]}
[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).
[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.
[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.
[49] Marko
Milanovic, Al-Skeini and Al-Jedda in Strasbourg, 23 Eur. J. Int’l
L (2012) – at 132.
[50] Al-Jedda
v. the United Kingdom [2011]
- http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-105612#{%22itemid%22:[%22001-105612%22]}
[51] Marko
Milanovic, Al-Skeini and Al-Jedda in Strasbourg, 23 Eur. J. Int’l
L (2012) – at 133.
[53] Al-Skeini and others v UK [2011], Para.
18.
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