3 - IHRL's Reach : Extraterritoriality and its Discontents

Question 1

How is extraterritoriality approached in IHRL? (5)

Answer 1

1/ controversial

2/ contested

3/ no general agreement on fact that States can be held responsible for HR violations occurring outside their territory

4/ issue has become esp. important in counter-terrorism context

5/ but strangely it is generally accepted that State obligations apply to persons beyond its borders insofar as the State exercises a sufficient degree of power, authority or control over them

Question 2

Why is there a humongous case law and evolutive jurisprudence at the ECtHR with respect to extraterritoriality? (3)

Answer 2

1/ controversy stems from Art. 1 which refers to “everyone within their jurisdiction”

2/ could thus be accepted that in exceptional circumstances, acts of States or their agents which produce effects abroad fall within scope of ECHR

3/ hence all cases are controversial politically and legally

Question 3

What is a basic premise of ECtHR jurisprudence regarding extraterritoriality, expressed in Issa and Others v Turkey?

Answer 3

Art. 1 does not allow a State to perpetrate violations on the territory of another State which it could not perpetrate on its own territory

Question 4

What is a consistent position of the ECtHR jurisdiction in the field of extraterritoriality? (2)

Answer 4

1/ ECtHR has always recognized jurisdiction when lethal use of force by State agents abroad

2/ but this outside context of armed conflict

Question 5

What was developed in the Ilascu and Others v Moldova and Russia case?

Answer 5

The direct and immediate cause test

=> StateRes engaged by “acts which have sufficient proximate repercussions on rights guaranteed by ECHR”

Question 6

What are the cases studied in this lecture? (6)

Answer 6

1/ Loizidou v Turkey (1995)

2/ Bankovic v Belgium & 16 Others (2001)

3/ Issa and Others v Turkey (2004)

4/ Al-Skeini and Others v UK (2011)

5/ Georgia v Russia (II) (2021)

6/ Carter v Russia (2021)

Question 7

What is main contribution of Loizidou v Turkey regarding extraterritoriality? (3)

Answer 7

1/ control over territory gives rise to jurisdiction (occupation of N.CYP)

2/ State must exercise effective control of an area outside its national territory as a consequence of military action

3/ such control may be exercised through State’s armed forces or a subordinate local administration

Question 8

What is main contribution of Bankovic v Belgium & 16 Others regarding extraterritoriality? (5)

Answer 8

1/ ECtHR reminds exceptional nature of extraterritorial jurisdiction

2/ such jurisdiction recognized when effective control of territory & inhabitants

3/ control must result from military occupation or consent, invitation or acquiescence of gvt

4/ foreign State must exercise all or some of the public powers normally to be exercised by the gvt

5/ this is a restrictive approach to notion of jurisdiction

Question 9

What did ECtHR hold in Bankovic? (3)

Answer 9

1/ NATO bombing did not constitute an exceptional circumstance establishing extraterritorial jurisdiction

2/ bc not a military occupation, no control of territory and ind. on the ground

3/ rejected effects doctrine and emphasized orthodox territorial conception of jurisdiction

Question 10

What did ECtHR hold in Issa and Others v Turkey? (5)

Answer 10

1/ when State has authority and control through its agents

2/ over ind. in territory of another State

3/ State has HR obligations

4/ so here, there is a recognition of the relationship of FACTUAL control exercised by a State agent on an ind. abroad

5/ however, instantaneous acts do not trigger jurisdiction -> there must be territorial or personal control

Question 11

What is main contribution of Al-Skeini and Others v UK regarding extraterritoriality? (5)

Answer 11

1/ extraterritoriality when diplomatic and consular agents exert authority and control over others

2/ extraterritoriality when State exercises all or some of the public powers normally to be exercised by the Gvt (as a result of consent, invitation or acquiescence of that Gvt)

3/ extraterritoriality when military activities abroad by State agents bring an ind. under the control of these agents (e.g. taken into custody)

4/ extraterritoriality when effective control of territory as result of military action (already affirmed in Loizidou)

5/ UK presence in N.Iraq as administrative force meant they were exercising some powers normally exercised by local authority –> extraterritoriality

Question 12

What was main question in Georgia v Russia (II)?

Answer 12

Did Russia’s obligations under ECHR apply during the active phase of the hostilities in Abkhazia and South Ossetia?

( ! ) This is an IAC between 2 MS

Question 13

What is main contribution of Georgia v Russia (II) regarding extraterritoriality? (6)

Answer 13

1/ ECtHR makes distinction between active phase of hostilities and other events

2/ no extraterritorial jurisdiction in “context of chaos” bc no effective control of territory

3/ Instantaneous acts: extraterritoriality accepted in cases of State agent authority and control over ind. in arrest/detention situation, even though there is no physical and territorial control (but this must be an isolated and specific act involving an element of proximity)

4/ seems to admit that in the “context of chaos”, only IHL applies

5/ extraterritorial jurisdiction however possible when occupation post the active phase of hostilities

6/ in active phase of hostilities: no negative right to life, BUT if subsequent occupation then obligation to investigate whether violations of right to life during hostilities

Question 14

How to explain the distinction made by the ECtHR between active phase of hostilities and other events in Georgia v Russia (II) ?

Answer 14

This distinction can be explained by the tension between IHL and IHRL

Question 15

What are some questions and implications of Georgia v Russia (II) judgment? (6)

Answer 15

1/ deleterious distinction btwn applicability of ECHR with respect to IACs/NIACs

2/ seems to introduce a discrimination btwn civilian deaths occurring in context of NIAC and those occurring beyond the responsible State’s borders (i.e. in IAC)

3/ is the ECtHR moving away from a harmonious interplay between IHL and IHRL?

4/ is the ECtHR implying conflict is too difficult a context to adjudicate HR obligations?

5/ would the reasoning have been different if this were an individual complaint rather than an inter-State complaint?

Question 16

What was main question in Carter v Russia?

Answer 16

Does the power to kill an ind. imply the exercise of authority or control over them? I.e. question of proximity and control

Question 17

What was the ECtHR’s rationale for extraterritorial application in Carter v Russia? (3)

Answer 17

1/ targeted violations of HR of an ind.

2/ by a State in the territory of another State

3/ undermine the effectiveness of the ECHR

Question 18

What distinction seems to be introduced in Carter v Russia? (2)

Answer 18

1/ physical control

2/ functional control, i.e. when State holds the rights of an ind. in its hands

Question 19

What new findings did the ECtHR make in Carter v Russia? (5)

Answer 19

1/ jurisdiction extends to instantaneous events - “cases concerning specific acts involving an element of proximity”

2/ thus moves beyond arrest and detention paradigm

3/ jurisdiction dependent on attribution to the State of the acts of the agent

4/ ECtHR also established attribution based on adverse inferences AND shifting the burden of proof

5/ adverse inferences + shifted burden of proof is was based on RUS’ failure to

(i) investigate in line with procedural duty
(ii) respect duty to cooperate with ECtHR

Question 20

What can be criticised/questioned about ECtHR’s finding in Carter v Russia? (2)

Answer 20

1/ does the inclusion of “proximity” make any sense?

2/ this is a very vague term

Question 21

What are the 3 basic scenarios for extraterritorial application of the ECHR as of today?

Answer 21

1/ control over territory (incl. occupation)

2/ authority and control over ind. in context of arrest and detention, usually during armed conflict

3/ power and control over ind. in situations of proximity

Question 22

Does confusion appear to be limited to the ECtHR? (4)

Answer 22

1/ yes

2/ IACtHR and Commission have been consistent (see The Environment and Human Rights, citing Franklin Guillerma Aisalla Molina (21 Oct. 2011) and Coard et al v US (29 Sept. 1999))

3/ HRC also has consistent positions (see Lopez Burgos v Uruguay ; Montero v Uruguay)

4/ Committee on the Rights of the Child in Sacchi et al. (2021) seems to argue in favor of the functional approach taking hold

Question 23

What does functionalism imply? (2)

Answer 23

1/ functionalism = universalism

2/ State should protect HR wherever in the world it may operate, whenever it may reasonably do so