Globalization and Jurisdiction: Lessons from the European Convention on Human Rights
Baltic Yearbook of International Law, Vol. 6, p. 185-247 (2006)
63 Pages Posted: 12 Jun 2014
Date Written: June 6, 2014
States increasingly affect situations beyond their national borders, by adopting acts which are clearly attributable to them in the meaning of the international law of State responsibility. This paper explores how this affects the relationship between the notion of “jurisdiction”, which Article 1 of the European Convention on Human Rights refers to as a condition for the Convention to be invoked, and the national territory. A number of States parties to the European Convention on Human Rights have been allegedly committing violations of this instrument by deploying activities beyond their national territory, raising the question whether the Convention does apply to such “extra-territorial” situations. The European Court of Human Rights has also been confronted with situations where events occured on portions of the territory which were de facto escaping control by the organs of the defending State. Perhaps even more significantly, the European Court of Human Rights is faced on the European continent with an extraordinary proliferation of cooperations between States, of which the expansion of the European Union and the progress of its integration constitutes perhaps the most spectacular, but by no means unique, manifestation. It therefore is confronted with the discrepancy between the individual character of the responsibility of States under the Convention and the reality of inter-State cooperation, resulting in situations where the alleged violation of the rights of the individual has its source, in fact, not in the acts of any single State party to the Convention, but in the combination of acts of two or more States. These questions, which this paper explores, are made significantly more complex in the context of the European Convention on Human Rights, because of the recognition that the Contracting States may be imposed certain positive obligations. Indeed, the identification of positive obligations in the Convention implies that, where a situation falls under the “jurisdiction” of a State party, that State must act through its organs, and may not remain passive even in the face of events for which is bears no direct responsibility. But the ability for the State to fulfil those positive obligations is severely curtailed where the situation calling for State action either occurs on foreign territory, or is a situation which is affected by the combined action of a number of States, parties or not to the Convention, and therefore does not depend on the adoption of a measure by the defending State alone.
Keywords: Jurisdiction, Extraterritorial human rights obligations, European Convention on Human Rights, Inter-State cooperation.
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