THE CONCEPT OF STATE JURISDICTION
IN HUMAN RIGHTS TREATIES
Dr Marko Milanovic, University of Nottingham, June 2013
Scope of human rights treaties

Who has rights?

Who has duties?

When do the treaties apply?

Where do they apply?

Focus on the jurisprudence of the European Court,
because there’s a lot of it and because it matters; but
argument made for all human rights treaties
Conceptualizing (extra-)territorial
application of a human rights treaty
Define the concept
 Art 29 VCLT
Territorial scope of treaties

Unless a different intention appears from the treaty or
is otherwise established, a treaty is binding upon each
party in respect of its entire territory

Colonies
Jurisdiction Clauses



Article 1 ECHR:
The High Contracting Parties shall secure to everyone within their jurisdiction
the rights and freedoms defined in Section I of this Convention
Article 2(1) ICCPR:
Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant
Article 2(1) CAT
Each State Party shall take effective legislative, administrative, judicial or
other measures to prevent acts of torture in any territory under its
jurisdiction.
What is this ‘jurisdiction’?

Jurisdiction of a state, not the jurisdiction of a court

A threshold criterion, cf. armed conflict

Not a rule of attribution  state responsibility
Basics of state responsibility

Art 2 ILC ASR:
There is an internationally wrongful act of a State when
conduct consisting of an action or omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State.




Attribution based on status or institutional link – Arts 4-7 ASR – e.g.
de iure organ status
Attribution based on a transient, factual link – Arts 8-11 ASR – e.g.
effective control over a specific act (ICJ Nicaragua, Bosnian
Genocide; ICTY Tadic; CAUTION – reference to control also possible
for other purposes, like jurisdiction; don’t confuse them!
Attribution + breach = responsibility; consequences of responsibility
= cessation and reparation
Basic problem: private individuals; other states; int organizations
Jurisdiction Clauses, again



Article 1 ECHR:
The High Contracting Parties shall secure to everyone within their jurisdiction
the rights and freedoms defined in Section I of this Convention
Article 2(1) ICCPR:
Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant
negative v. positive
obligations
Article 2(1) CAT
Each State Party shall take effective legislative, administrative, judicial or
other measures to prevent acts of torture in any territory under its
jurisdiction.
Loizidou (prel. obj.), para. 62
[A]lthough Article 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.
The obligation to secure, in such an area, the rights and
freedoms set out in the Convention, derives from the fact of
such control whether it is exercised directly, through its
armed forces, or through a subordinate local administration
Spatial model: jurisdiction as control
over territory

Overwhelmingly supported by case law
 ECtHR
– Cyprus line of cases, etc.
 HRC – e.g. Israel and the OPT
 ICJ – Wall case; Congo v. Uganda

But is it enough?  Bankovic
Bankovic, paras. 59-61
As to the ‘‘ordinary meaning’’ of the relevant term in Article 1 of the
Convention, the Court is satisfied that, from the standpoint of public
international law, the jurisdictional competence of a State is primarily
territorial. While international law does not exclude a State’s exercise of
jurisdiction extra-territorially, 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 [citations omitted]
Accordingly, for example, a State’s competence to exercise jurisdiction over
its own nationals abroad is subordinate to that State’s and other States’
territorial competence []. In addition, a State may not actually exercise
jurisdiction on the territory of another without the latter’s consent, invitation
or acquiescence, unless the former is an occupying State in which case it can
be found to exercise jurisdiction in that territory, at least in certain respects.
The Court is of the view, therefore, that Article 1 of the Convention must be
considered to reflect this ordinary and essentially territorial notion of
jurisdiction, other bases of jurisdiction being exceptional and requiring
special justification in the particular circumstances of each case
More than one ‘ordinary meaning’ or
the word ‘jurisdiction’ in PIL

Article 9(2), Disappearances Convention:
Each State Party shall likewise take such measures as may be necessary to
establish its jurisdiction over the offence of enforced disappearance when
the alleged offender is present in any territory under its jurisdiction, unless it
extradites or surrenders him or her to another State in accordance with its
international obligations or surrenders him or her to an international criminal
tribunal whose jurisdiction it has recognized.

Jurisdiction to prescribe and jurisdiction to enforce in general international
law  territoriality, active and passive personality, flag, protective,
universal
Bankovic, para. 71& 75
In sum, the case-law of the Court demonstrates that its
recognition of the exercise of extra-territorial jurisdiction by a
Contracting State is exceptional: it has done so when the
respondent State, through the effective control of the relevant
territory and its inhabitants abroad as a consequence of
military occupation or through the consent, invitation or
acquiescence of the Government of that territory, exercises all
or some of the public powers normally to be exercised by that
Government.
…
the wording of Article 1 does not provide any support for the
applicants’ suggestion that the positive obligation in Article 1
to secure “the rights and freedoms defined in Section I of this
Convention” can be divided and tailored in accordance with
the particular circumstances of the extra-territorial act in
question.
Bankovic, para. 80
The Court’s obligation, in this respect, is to have regard to the special
character of the Convention as a constitutional instrument of European
public order […] It is therefore 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
[… discussing the Cyprus v. Turkey vacuum argument].
In short, the Convention is a multi-lateral treaty operating, subject to
Article 56 of the Convention2, in an essentially regional context and
notably in the legal space (espace juridique) of the Contracting States.
The FRY 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 favour of establishing jurisdiction only when
the territory in question was one that, but for the specific circumstances,
would normally be covered by the Convention.
Understanding Bankovic


The references to general international law are
bogus; they are just a superficially plausible,
legalistic cover for what the Court is actually doing
Bankovic, post-9/11, fear of the floodgates opening;
extraterritorial application of the ECHR had to be
exceptional
The spatial model at a breaking point

Use of force without exercising effective overall control of a
territory; e.g. Bankovic, Al-Skeini; but also Issa, Pad, Isaak

Targeted killings or assassination; e.g. drones, Litvinenko

Detention, torture of persons in a territory controlled by another
state; e.g. Al-Skeini; high-value Al-Qaeda detainees & CIA black
sites

Reverse Al-Skeini: R(Smith) v. SSD

Complicity scenarios – UK, US and Pakistan

Transboundary environmental harm; e.g. Ecuador v. Colombia
Jurisdiction as control over very, very
small areas of territory


Guantanamo
Al-Saadoon, dec., para. 85:
The Court considers that, given the total and exclusive de facto, and
subsequently also de jure, control exercised by the United Kingdom
authorities over the premises in question, the individuals detained
there, including the applicants, were within the United Kingdom’s
jurisdiction. This conclusion is, moreover, consistent with the dicta of
the House of Lords in Al-Skeini and the position adopted by the
Government in that case before the Court of Appeal and House of
Lords.

Ships and aircraft (e.g. Medvedyev, Hirsi); embassies; is
jurisdiction exclusive - other premises (ICC)
Jurisdiction as control over territory; but also as
control over individuals?
Cyprus v. Turkey, EurComm’n (1975), para.8
It is clear from the language, in particular of the French text, and the object of this Article,
and from the purpose of the Convention as a whole, that the High Contracting Parties are
bound to secure the said rights and freedoms to all persons under their actual authority and
responsibility, whether that authority is exercised within their own territory or abroad.

ECtHR Issa v. Turkey; HRC, Lopez-Burgos
In line with this, it would be unconscionable to so interpret the responsibility under article
2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on
the territory of another State, which violations it could not perpetrate on its own territory.

HRC, General Comment 31 (2004), para. 10
This means that a State party must respect and ensure the rights laid down in the
Covenant to anyone within the power or effective control of that State Party, even if not
situated within the territory of the State Party. ... This principle also applies to those within
the power or effective control of the forces of a State Party acting outside its territory,
regardless of the circumstances in which such power or effective control was obtained,
such as forces constituting a national contingent of a State Party assigned to an
international peace-keeping or peace-enforcement operation.

The personal model collapses

It’s all well and fine to say that ‘jurisdiction’ can also
mean authority and control over individuals, but
What exactly qualifies as ‘authority and control’?
 And can this principle ever be limited?



Is killing an individual authority and control? Is detaining
an individual authority and control? Is putting an
individual on trial in absentia authority and control?
Any proposed limitation (e.g. physical custody) is
ultimately exposed as arbitrary  any state action
capable of violating HR qualifies as authority and
control  the threshold collapses
Policy behind the rule

Tension between universality and effectiveness





Universality renders many considerations morally suspect (e.g.
territorial sovereignty, citizenship, relativism)
Flexibility
Regime integrity
Clarity and predictability
Al-Skeini?
Case Study – Al-Skeini


Lower court judgments
House of Lords judgment - regionalism and
relativism; espace juridique; Baha Mousa within UK
jurisdiction because military prison is like an embassy
 Baha

Mousa inquiry
European Court Grand Chamber judgment
Al-Skeini UKHL, para. 78 (per Lord
Rodger)
The essentially regional nature of the Convention is relevant to the way that the
court operates. It has judges elected from all the contracting states, not from
anywhere else. The judges purport to interpret and apply the various rights in
the Convention in accordance with what they conceive to be developments in
prevailing attitudes in the contracting states. This is obvious from the court’s
jurisprudence on such matters as the death penalty, sex discrimination,
homosexuality and transsexuals.
The result is a body of law which may reflect the values of the contracting
states, but which most certainly does not reflect those in many other parts of the
world. So the idea that the United Kingdom was obliged to secure observance
of all the rights and freedoms as interpreted by the European Court in the
utterly different society of southern Iraq is manifestly absurd. Hence, as noted
in Bankovic, 11 BHRC 435, 453-454, para 80, the court had “so far”
recognised jurisdiction based on effective control only in the case of territory
which would normally be covered by the Convention. If it went further, the court
would run the risk not only of colliding with the jurisdiction of other human rights
bodies but of being accused of human rights imperialism.
Al-Skeini, ECtHR GC (July 2011), para.
135 (addressing personal model)
the Court has recognised the exercise of extra-territorial
jurisdiction by a Contracting State when, through the
consent, invitation or acquiescence of the Government of
that territory, it exercises all or some of the public powers
normally to be exercised by that Government (Banković,
cited above, § 71). Thus where, in accordance with
custom, treaty or other agreement, authorities of the
Contracting State carry out executive or judicial functions
on the territory of another State, the Contracting State
may be responsible for breaches of the Convention
thereby incurred, as long as the acts in question are
attributable to it rather than to the territorial State.
Al-Skeini, ECtHR GC (July 2011),
paras. 136-137
In addition, the Court’s case-law demonstrates that, in certain circumstances,
the use of force by a State’s agents operating outside its territory may bring
the individual thereby brought under the control of the State’s authorities into
the State’s Article 1 jurisdiction. This principle has been applied where an
individual is taken into the custody of State agents abroad. [citing Öcalan,
Issa, Al-Saadoon and Medvedyev]. The Court does not consider that jurisdiction
in the above cases arose solely from the control exercised by the Contracting
State over the buildings, aircraft or ship in which the individuals were held.
What is decisive in such cases is the exercise of physical power and control
over the person in question.
It is clear that, whenever the State through its agents exercises control and
authority over an individual, and thus jurisdiction, the State is under an
obligation under Article 1 to secure to that individual the rights and freedoms
under Section 1 of the Convention that are relevant to the situation of that
individual. In this sense, therefore, the Convention rights can be “divided and
tailored” (compare Banković, cited above, § 75)
Al-Skeini GC, para. 140 (trying to kill
off the colonial clause)
The “effective control” principle of jurisdiction set out above does not
replace the system of declarations under Article 56 of the Convention
(formerly Article 63) which the States decided, when drafting the
Convention, to apply to territories overseas for whose international
relations they were responsible. Article 56 § 1 provides a mechanism
whereby any State may decide to extend the application of the
Convention, “with due regard ... to local requirements,” to all or any of
the territories for whose international relations it is responsible.
The existence of this mechanism, which was included in the Convention for
historical reasons, cannot be interpreted in present conditions as limiting
the scope of the term “jurisdiction” in Article 1. The situations covered by
the “effective control” principle are clearly separate and distinct from
circumstances where a Contracting State has not, through a declaration
under Article 56, extended the Convention or any of its Protocols to an
overseas territory for whose international relations it is responsible (see
Loizidou (preliminary objections), cited above, §§ 86-89 and Quark
Fishing Ltd v. the United Kingdom (dec.), no. 15305/06, ECHR 2006-...).
Al-Skeini GC, para. 142 (killing off the
espace juridique)
The Court has emphasised that, where the territory of one
Convention State is occupied by the armed forces of another, the
occupying State should in principle be held accountable under
the Convention for breaches of human rights within the occupied
territory, because to hold otherwise would be to deprive the
population of that territory of the rights and freedoms hitherto
enjoyed and would result in a “vacuum” of protection within the
“Convention legal space” (see Loizidou (merits), cited above,
§78; Banković, cited above, § 80).
However, the importance of establishing the occupying State’s
jurisdiction in such cases does not imply, a contrario, that
jurisdiction under Article 1 of the Convention can never exist
outside the territory covered by the Council of Europe Member
States. The Court has not in its case-law applied any such
restriction (see amongst other examples Öcalan, Issa, AlSaadoon and Mufdhi, Medvedyev, all cited above).
Al-Skeini GC, para. 149 (applying the public
powers criterion to the personal model)
It can be seen, therefore, that following the removal from
power of the Ba’ath regime and until the accession of the
Interim Government, the United Kingdom (together with the
United States) assumed in Iraq the exercise of some of the
public powers normally to be exercised by a sovereign
government. In particular, the United Kingdom assumed
authority and responsibility for the maintenance of security in
South East Iraq.
In these exceptional circumstances, the Court considers that the
United Kingdom, through its soldiers engaged in security
operations in Basrah during the period in question, exercised
authority and control over individuals killed in the course of such
security operations, so as to establish a jurisdictional link between
the deceased and the United Kingdom for the purposes of Article
1 of the Convention.
Al-Skeini GC, para. 150 (applying the
new test to the facts)
Against this background, the Court recalls that the deaths at issue in the
present case occurred during the relevant period: the fifth applicant’s son died
on 8 May 2003; the first and fourth applicants’ brothers died in August 2003;
the sixth applicant’s son died in September 2003; and the spouses of the
second and third applicants died in November 2003.
It is not disputed that the deaths of the first, second, fourth, fifth and sixth
applicants’ relatives were caused by the acts of British soldiers during the
course of or contiguous to security operations carried out by British forces in
various parts of Basrah City. It follows that in all these cases there was a
jurisdictional link for the purposes of Article 1 of the Convention between the
United Kingdom and the deceased.
The third applicant’s wife was killed during an exchange of fire between a
patrol of British soldiers and unidentified gunmen and it is not known which
side fired the fatal bullet. The Court considers that, since the death occurred in
the course of a United Kingdom security operation, when British soldiers
carried out a patrol in the vicinity of the applicant’s home and joined in the
fatal exchange of fire, there was a jurisdictional link between the United
Kingdom and this deceased also.
Al-Skeini GC: Better, but still not good
enough



Bankovic largely preserved, both conceptually
(extraterritorial application is exceptional and must be
justified by reference to general international law) and in
result (e.g. drones, or the bombing of Libya, or an OBL-style
targeted killings operation would per Al-Skeini not fall
under the ECHR)
Personal model applied, but limited arbitrarily to preserve
the result of Bankovic
Complete uncertainty about the ‘public powers’ concept, now
used to mix the spatial model with the personal one, in order
to prevent the collapse of the personal model and avoid
overturning Bankovic; how does that apply say to
Afghanistan?
After Al-Skeini




Catan and others v. Moldova and Russia
Two further ECtHR decisions: Djokaba; Chagos
Islanders; more pending
UKSC revisiting Smith; also before the ECtHR
What we don’t know
 Public
powers inherently malleable
 Litvinenko; Osama bin Laden; Smith
 Complicity; positive obligations
 Belligerent occupation under strain - Basra
My proposed solution





Jurisdiction conceptualized as purely factual control over
territory or spaces
Distinguishing between the positive obligation to secure or
ensure HR, from the negative obligation to respect HR
The positive obligation to secure should only apply subject
to territorial control, i.e. under the spatial model
The negative obligation to respect should be territorially
unrestricted [but knock yourself out with jurisdiction under
the personal model if you really feel you need to, so long as
that is not arbitrarily limited]
However, prophylactic or procedural positive obligations
should apply jointly with negative obligations, in cases of
state action
Issues of shared responsibility

Relationship between jurisdiction and attribution



Simultaneous jurisdiction of different states on different bases



Normally two separate enquiries
But attribution of conduct can be a prerequisite for jurisdiction – e.g. that of the
conduct that constitutes effective control of an area
Ilascu – in my view erroneously
CIA black sites – territorial state and the custodial state
Spatial jurisdiction need not require exclusive control





Occupier creates a subordinate local administration with a significant degree of
autonomy (TRNC) or allows the local administration of the displaced sovereign to
continue
Insurgency – Iraq, Afghanistan
Use of force/occupation conducted by several states jointly
Use of force/occupation under the auspices of an IO - Kosovo
Transformation of a belligerent into a pacific occupation and the creation of a
new government – again Iraq, Afghanistan