Angelika Regner

angelikaregner@yahoo.de

Extraterritorial Application
of
Human Rights Treaties

Seminar

“The International Covenant on Civil and Political Rights

- Trends and Developments”

Institute for Human Rights

Åbo Akademie
November/December 2006
Content
Page

1. Introduction 1

2. Legal Scope
2.1 The Meaning of Extraterritorial Application of Human Rights Treaties 2
2.2 Within the State’s Jurisdiction and Territory? 2
2.3 The European Approach 4
2.4 The American Approach 11
2.5 The Human Rights Committee and Extraterritorial Application 13
2.6 Interdependence between Universality of HR and extraterritorial application 16

3. Human Rights and International Humanitarian Law 18

4. Conclusions 20
 I

Bibliographie

Cassel, Douglas Extraterritorial Application of Inter American Human Rights

Instruments ; in Coomans, Fons & Kamminga, Menno T.,
Extraterritorial Application of Human Rights Treaties; intersentia
2004; 175-181

Cerna, Christina M. Extraterritorial Application of the Human Rights Instruments of

the Inter-American System ; in Coomans, Fons & Kamminga,
Menno T., Extraterritorial Application of Human Rights Treaties;
intersentia 2004; 141-174

Coomans, Fons/ Comparative Introductory Comments on the Extraterritorial

Kamminga, Menno T. Application of Human Rights Treaties; in: Coomans, Fons &
Kamminga, Menno T., Extraterritorial Application of Human
Rights Treaties; intersentia 2004; 1-7

Fitzpatrick, Joan Speaking Law to Power: The War against Terrorism and Human
Rights; European Journal of International Law Vol. 14 No.2;
2003, 241-264

Gillard, Emanuela-Chiara International Humanitarian Law and Extraterritorial State

Conduct; in: Fons & Kamminga, Menno T., Extraterritorial
Application of Human Rights Treaties; intersentia 2004; 25-46

Joseph, Sarah and others International Covenant on Civil and Political Rights – Case,
Materials and Commentary; Chapter 4: Territorial and
Jurisdictional Limits, 83-96; Oxford; Oxford University Press
2004

Lawson, Rick Life after Banković: On the Extraterritorial Application of the

European Convention on Human Rights; in: Coomans, Fons &
Kamminga, Menno T., Extraterritorial Application of Human
Rights Treaties; intersentia 2004; 83-123
 II

Mantouvalou, Virginia Extending Judicial Control in International Law: Human Rights

Treaties and Extraterritoriality; International Journal of Human
Rights Vol. 9, No.2; 2005; 147-163

Meron, Theodor Extraterritoriality of Human Rights Treaties; The American

Journal of International Law; Vol. 89, No.1, 1995; 87-82

McGoldrick, Dominic Extraterritorial Application of the International Covenant on

Civil and Political Rights; in: Coomans, Fons & Kamminga,
Menno T., Extraterritorial Application of Human Rights Treaties;
intersentia 2004; 41-72

O´Boyle, Michael The European Convention on Human Rights and Extraterritorial

Jurisdiction: A Comment on ´Life after Banković´; in: Coomans,
Fons & Kamminga, Menno T., Extraterritorial Application of
Human Rights Treaties; intersentia 2004; 175-181

Ovey, Clare/ Jacobs and White: The European Convention on Human Rights;
White, Robin C.A. Oxford; Oxford University Press; 4th edition 2006-11-29

Ross, James Jurisdictional Aspects of International Human Rights and

Humanitarian Law in the War on Terror; in: Coomans, Fons &
Kamminga, Menno T., Extraterritorial Application of Human
Rights Treaties; intersentia 2004; 9-24

Scheinin, Martin Extraterritorial Effect of the International Covenant on Civil and

Political Rights; in: Coomans, Fons & Kamminga, Menno T.,
Extraterritorial Application of Human Rights Treaties; intersentia
2004; 73-81

Wilde, Ralph The Legal Space or Espace Juridique of the European

Convention on Human Rights: Is It Relevant to Extraterritorial
State Action?; European Human Rights Law Review; Issue 2,
2005, 115-124
 III

General Links to the Cases, Comments and Reports:

European Court of Human Rights:

http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
Inter-American Commission of Human Rights:
http://www.cidh.org/DefaultE.htm
Database of the UN Treaty Based Bodies:
http://www.unhchr.ch/tbs/doc.nsf
University of Minnesota – Human Rights Library:
http://www1.umn.edu/humanrts/center/default.html
Netherlands Institute of Human Rights
http://sim.law.uu.nl/sim/Dochome.nsf
 1

1. Introduction

This essay shall provide an overview of the partly controversial argumentation when dealing
with extraterritorial application of human rights treaties. The core of this discussion is in the
interpretation of the concept of jurisdiction.
First of all could be stated, that the topic is linked to the sovereignty of states in dealing with
the word “jurisdiction”. Due to that link, the extraterritorial application of human rights in a
wide sense has been already questioned before the Bill of Rights were drafted. The Lotus-
Case and the Trail-Smelter-Case are good examples of extraterritorial responsibility of states.
And responsibility is related to extraterritorial application.
Furthermore with the development of international and regional systems for monitoring the
human rights treaties the possibility appeared to claim the rights under these treaties before an
independent body. There have also been a couple of cases dealing with extraterritorial
application. That was very decisive to show, that the states did and do not only have
responsibilities in human rights cases with regard to their own territory an own citizens but
also on the international level. The most important cases shall be examined in this essay.
Although there is high importance of economic, social and cultural rights this approach will
only refer to political and civil rights due to the International Covenant on Civil and Political
Rights1, the European Convention on Human Rights2, the American Convention on Human
Rights3 and the American Declaration of the Rights and Duties of Man4.
Finally, it is not right clear how human rights and the International Humanitarian Law5 work
together in times of armed conflicts and especially with regard to detention of “enemy
combatants”. The following statement may clarify the topicality of extraterritorial application
of Human Rights Treaties in this:
At the level of the real world, the potential extraterritorial reach of the Convention
clearly raises some sensitive issues. We live in an interventionist age. Already before
11 September 2001 states parties to the Convention were involved in the Gulf War,
carries out air strikes on Yugoslavia and participated in UN peace keeping missions
all over the world. Since 11 September the ´War on Terrorism´ has been waged in
Afghanistan an apparently involves operations in countries such as Yemen. A war was
fought in Iraq and `coalition forces` - some of which come from the UK, Poland and
the Netherlands: states parties to the European Convention – continue to be present in

1
hereinafter: ICCPR
2
hereinafter: ECHR
3
hereinafter: ACHR
4
hereinafter: American Declaration
5
hereinafter: IHL
 2

Iraq to date. The question whether the ECHR applies to armed forces on foreign soil is
not a mere toy for academics.6

2. Legal Scope

2.1 The Meaning of Extraterritorial Application of HR Treaties

The meaning as it has been already shown by the introductive words can be seen in the fact,
that many states did and do not only act on their own territory, but in a globalizing world and
that on the other side acts of states have sometimes extraterritorial effect, although they take
part on the territory of a state.7 Therefore the most important “human rights guards” – the
Human Rights Committee8, the European Court of Human Rights9, the Inter American
Commission on Human Rights10 - have been engaged in this problem. The case-law of those
institutions is the main source for getting familiar to this topic. The academic literature mainly
refers – due to this case law – to three different situations of applicability: (1) a state exercises
effective control over foreign territory, human rights treaties to which it is a party are
applicable to this conduct in that foreign country, (2) a state exercises power and authority
over persons by abducting or detaining them on foreign territory and (3) other situations,
which do not fit under them named above: e.g. extraterritorial killing not preceded by arrest;
inside and outside the legal space of a treaty. The first and second cases of application are
largely agreed in principle, while the last is managed unclear.11

2.2 Within one States´ Jurisdiction and Territory?

Monitoring on international level is actually necessary, because the wordings of the relevant
treaty-provisions differ in some definitions and need to be interpreted. First, one can
recognize that they differ in wording. Whilst the ECHR and the ACHR call exclusive for

6
Rick Lawson. Life after Bankovic: on the extraterritorial application of the ECHR; in: Extraterritorial
application of Human Rights Treaties, edited by Fons Coomans and Menno T. Kamminga; p. 84
7
for the support see: McGoldrick, The extraterritorial application of the ICCPR p. 42; in: Extraterritorial
application of Human Rights Treaties, edited by Fons Coomans and Menno T. Kamminga;
8
hereinafter: HRC
9
herinafter: ECtHR
10
hereinafter: IACHR
11
Coomans/Kamminga; Comparative Introductory Comments on the Extraterritorial Application of Human
Rights Treaties; in Coomans/Kamminga, p.3-4
 3

“jurisdiction” 12 the ICCPR includes a – on the first view more restricted – definition of the
application of the treaty in pointing out the rights that are respected and ensured “to all
individuals within its territory and subject to its jurisdiction”.13
Already in the travaux preparatoires the drafters of the ECHR and also those of the ICCPR
had in mind the problem of extraterritorial application. So the first proposal of Article 1
ECHR provides that “….the Member States shall undertake to ensure to all persons residing
within their territories…”14 and opposite to this the first draft of the ICCPR did not contain
the reference to territory.15
Thus, extraterritorial application of human rights is not a new phenomenon. And as such also
the International Law Commission16 was dealing with the topic on its work to draft provisions
due to state responsibility of international wrongful acts.17 The ILC stated in 1975 with regard
to acts of agents of one state in the territory of another state, that “such contact is and remains
an act of the State to which the organ belongs, by virtue of draft art. 5 et seq., which set no
territorial limitation on the attribution to the State of the acts of its organs.”18
But as already pointed out, the interpretation of extraterritorial application of Human Rights
Treaties is task of the monitoring bodies - the Human Rights Committee19, the European
Court of Human Rights20 and the Inter-American Commission on Human Rights21. The
following chapters refer to the different monitoring bodies, institutions and their principles
with respect to the respective interpretation of the treaties. But do they adopt the same way of
interpretation? Which ways are possible? And what happens if they go different ways?

12
Art. 1 ECHR: The High Contracting parties shall secure to everyone within there jurisdiction the rights and
freedoms defined in Section I of this Convention.
Art. 1 (1) ACHR The State Parties to this Convention undertake to respect the rights and freedoms recognized
herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights…..
13
Art. 2(1) ICCPR
14
http://www.echr.coe.int/library/DIGDOC/Travaux/ECHRTravaux-ART1-COUR(77)9-EN1290551.PDF p.19
15
Rick Lawson; above, p.89
16
hereinafter: ILC
17
ILC short summary to state responsibility, which included links to the special documents;
http://untreaty.un.org/ilc/summaries/9_6.htm
18
Yearbook of the ILC, 1975, vol. II, 84,
http://untreaty.un.org/ilc/publications/yearbooks/Ybkvolumes(e)/ILC_1975_v2_e.pdf
19
hereinafter: HRC
20
hereinafter: ECtHR
21
hereinafter: IACHR
 4

2.3 The European Approach

Monitoring the compliance and enforcement of human rights on the European level is the task
of the ECtHR. Until 1998 the European Commission on Human Rights22 had done most of
this work, because no permanent court existed. They have dealt with two different main
situations: 1) the extradition-cases and 2) the state responsibility for wrongful acts of their
state agents – mainly armed forces. The outcome of the cases seems not concurrent and it is
necessary to provide a short development.
The landmark case with regard to extradition was the Soering-case. The main question here
was, whether the UK – where Mr. Soering, a German citizen, was arrested – would breach
Art. 3 ECHR, if it would extradite him to the US, regardless of the fact that the applicant
would be subjected to the death-row phenomenon outside the state’s territory. In the US he
might face the death penalty because of killing his girlfriend’s parents.23 The ECtHR held,
that the death row phenomenon to which the applicant would be subjected in the US
constitutes inhuman and degrading treatment and that the UK would be responsible for this in
extraditing him to the US:
Article 1 of the Convention, which provides that "the High Contracting Parties shall
secure to everyone within their jurisdiction the rights and freedoms defined in Section I",
sets a limit, notably territorial, on the reach of the Convention. In particular, the
engagement undertaken by a Contracting State is confined to "securing" the listed rights
and freedoms to persons within its own "jurisdiction". Further, the Convention does not
govern the actions of States not Parties to it, nor does it purport to be a means of
requiring the Contracting States to impose Convention standards on other States. Article
1 cannot be read as justifying a general principle to the effect that, notwithstanding its
extradition obligations, a Contracting State may not surrender an individual unless
satisfied that the conditions awaiting him in the country of destination are in full accord
with each of the safeguards of the Convention. Indeed, as the United Kingdom
Government stressed, the beneficial purpose of extradition in preventing fugitive offenders
from evading justice cannot be ignored in determining the scope of application of the
Convention and of Article 3 in particular.24

The principle that was first applied in the above case has been confirmed since than in various
circumstances.25 But it is also arguable whether extradition-cases provide examples for
extraterritorial applicability or whether they are simple territorial cases. Lawson stated, that
“the decision to extradite is normally taken in the territory of the extraditing state, at a

22
hereinafter: the Commission
23
Soering v. UK; Application No. 14038/88; 7.7.1998; facts para 11-26;
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=soering&sessionid=9
656161&skin=hudoc-en
24
Soering v. UK; Application No. 14038/88; 7.7.1998; para 86
25
V. Mantouvalou, IJHR, Vol. 9 No.2, p. 147(150)
 5

moment when the person concerned is clearly within that state’s jurisdiction. Whether the
risk of ill-treatment actually materialises, following the extradition, is irrelevant for the
responsibility of the extraditing state.”26But, although the cases are arguable in different ways,
all commentators agree, that extradition falls in the jurisdiction of the extraditing state.
But the more controvertible cases are those of state’s actions on foreign territory as it will be
recorded afterwards. There is a thirty years development within the Commission’s and
Etcher’s jurisprudence.
The early cases are dealing with the Turkish invasion in Northern Cyprus in 1974. Here the
Commission pointed out, that:
“the term within its jurisdiction is not equivalent to or limited to the territory of the High
Contraction Party concerned.[…] It is clear from the language and the object of this
Article (art.1), and from the purpose of the Convention as a whole, that the High
Contracting State Parties are bound to secure the said rights and freedoms to all persons
under their actual authority and responsibility, whether that authority is exercised on its
own territory or abroad.”27

In its later cases - Loizidou28 and Cyprus v. Turkey29 - the ECtHR recalls the Commission’s
findings from 1975 and emphasizes that the a State’s responsibility may be engaged where,
as a consequence of military action or also due to officials in that area, it in practice exercises
effective or overall control of an area situated outside its national territory.30 With this
decisions the ECtHR underlined the object and purpose of the ECHR and clearly stated that
the responsibility of a Contracting Party cannot be restricted to acts committed within its
national territory, but can also arise from acts carried out abroad.
As has been considered above this comprehensive interpretation of Article 1 ECHR may be
seen prima facie unclear in facts of why the ECtHR declared the Bankovic-case31
unanimously inadmissible on grounds that the applicants and their deceased relatives were not
within the jurisdiction of the Respondent States. Before going intolegal detail it is helpful to
know the facts of the case and the applicants’ claims due to the term “jurisdiction”. In 1999,
during the humanitarian intervention in Kosovo, NATO forces attacked the headquarters of

26
Rick Lawson, above, p. 97
27
Cyprus v. Turkey;( N° 6780/74 6 N° 6950/75) European Commission on Human Rights 26.5. 1975, p. 136
http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=9656367&skin=hudoc-en&action=request
28
Loizidou v. Turkey (No. 15318/89) ECtHR, 23.03.1995
http://cmiskp.echr.coe.int/tkp197/view.asp?item=6&portal=hbkm&action=html&highlight=Turkey%20%7C%2
01&sessionid=9656367&skin=hudoc-en
29
Cyprus v. Turkey (No. 25781/94) ECtHR 10.05.2001
http://cmiskp.echr.coe.int/tkp197/view.asp?item=9&portal=hbkm&action=html&highlight=Turkey%20%7C%2
01&sessionid=9656367&skin=hudoc-en
30
Jacobs/White, the ECHR 2006, p. 26
31
Bankovic a.o. v. Belgium a.o., (No. 52207/99) ECtHR 12.12.2001
http://cmiskp.echr.coe.int/tkp197/view.asp?item=4&portal=hbkm&action=html&highlight=Turkey%20%7C%2
01&sessionid=9656367&skin=hudoc-en
 6

the Radio-Television of Serbia32 in the centre of Belgrade. As a result 16 employees lost their
lives and a number of others were seriously injured. The applicants submitted the victims of
the NATO-bombing fell within the respondent States´ jurisdiction on two basic grounds:
either because the attack on RTS was decided and planned within their territory or because the
States exercised effective control of the Federal Republic of Yugoslavia’s air space when the
bombing campaign was taking place.
In advance the ECtHR held, that the jurisdictional competence of a state under Article 1
ECHR is primarily territorial and other bases of jurisdiction are exceptional and requiring
special justification in the particular circumstances of each case.33 The ECtHR therefore based
its decision first on the argumentation of “effective control” and held that the responsibility of
a contracting party was exceptionally capable of being engaged when as a consequence of
military action it exercised effective control of an area outside its national territory:34
In the first place, the applicants suggest a specific application of the “effective control”
criteria developed in the northern Cyprus cases. They claim that the positive obligation
under Article 1 extends to securing the Convention rights in a manner proportionate to
the level of control exercised in any given extra-territorial situation. The Governments
contend that this amounts to a “cause-and-effect” notion of jurisdiction not contemplated
by or appropriate to Article 1 of the Convention. The Court considers that the applicants’
submission is tantamount to arguing that anyone adversely affected by an act imputable
to a Contracting State, wherever in the world that act may have been committed or its
consequences felt, is thereby brought within the jurisdiction of that State for the purpose
of Article 1 of the Convention.
[…] However, the Court is of the view that 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 and, it considers its view in this respect supported by the text of Article 19 of the
Convention. Indeed the applicants’ approach does not explain the application of the
words “within their jurisdiction” in Article 1 and it even goes so far as to render those
words superfluous and devoid of any purpose. 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 1949.35

Going further in this decision the Court argues due to legal scope of the ECHR, that the
applicants do not fall within the “legal space” of it:
In short, the Convention is a multi-lateral treaty operating, subject to Article 56 of the
Convention, 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

32
hereinafter: RTS
33
Bankovic a.o. v. Belgium a.o., (No. 52207/99) ECtHR 12.12.2001; para 61
34
Bankovic a.o. v. Belgium a.o., (No. 52207/99) ECtHR 12.12.2001; para 70, the ECtHR refers to Loizidou v.
Turkey (No. 15318/89) ECtHR, 23.03.1995 and Cyprus v. Turkey ECtHR (No. 25781/94) 10.05.2001
35
Bankovic a.o. v. Belgium a.o., (No. 52207/99) ECtHR 12.12.2001; para 75
 7

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.36

What does the court want to explain with this decision? Does it imply a change of the former
jurisdiction, is it just a “jurisdictional accident” or can we read the Bankovic-decision in
another way? There have been few inadmissibility decisions which have given rise to such
adverse comment and controversy as the Banković case37
Actually sides, supporting and criticizing the decision can be found. Supporting the decision
e.g. Wilde in its essay on the “Legal Space” or “Espace Juridique” of the ECHR interprets
almost every small word, which does not seem to be important prima facie if someone read it
in a fluent way. So, he stated, that the decision is misunderstood by the most scholars
criticising it and also by some national courts citing it for wrong purposes.38 First of all Wilde
regards the ECtHR´s considerations on the legal space more as a distinct argument and one
that operated “more generally”. So it did not play a key part of the outcome of the case.39 For
Wilde the explanations on the effective control constitute the real ratio decidendi due to the
inadmissibility and of the case - whilst the comments on the legal space can be seen merely as
an obiter dictum. He interprets the wordings about legal space in that way, that the words
“regional context” are hardly a clear reference to a territorial area and the phrase “notably in
the legal space of the Contracting States” constitutes a clear reference to a territorial area. But
not necessarily one, because of the word “notably” that means that the Convention applies
only in this area. So neither of these particular remarks in Banković necessarily excludes the
application of the Convention to the activities of Member States outside the territory of the
Council of Europe.40 Furthermore he tries to explain the wording “The Convention was not
designed to be applied throughout the world,” in that part of the decision. From the literally
meaning it seems that this is no supporting its above mentioned opinion. But Wilde stated,
that the ECtHR explicitly referred in its decision to the role of the ECHR as a “living
instrument”41. From this scope the word “was” has to be interpreted as an historical comment;

36
Banković a.o. v. Belgium a.o., (No. 52207/99) ECtHR 12.12.2001, para 80
37
M O´Boyle; The ECHR and extraterritorial jurisdiction. A comment on Life after Banković, p.125
38
Wilde cited the decision of the High Court in Al-Skeini (R v. Secretary of State for Defence (2004) EWHC
2911 (Admin)
39
R. Wilde; EHRLR Issue 2 2005; p 115 (118)
40
R. Wilde; above p. 117
41
actually the ECtHR did in para 64 of the Banković decision
 8

it shows the original wish of the framers – but by itself it says nothing about whether this
supposed intent is determinative more than 50 years after the Convention was enacted.42
Hence, this argumentation seems not persuasive at all. Why should the judges refer to for
what the ECHR was enacted, when they did not want to use it for supporting their comments
in the context of the legal space of the ECHR?
Wilde is not the only scholar which supports the Banković – decision. Also McGoldrick
remarks, that when understood in its proper legal context – as a jurisdictional question within
a specific international human rights treaty – it is a hard case which made good law.43 That
good law is consistent with the previous jurisprudence on the possible exceptional
extraterritorial application of the ECHR in situations of authority and responsibility and
effective control and Banković should not be read as undermining this jurisprudence.44
The other scholastic group are more critically with this decision. That must be considered in
the scope of the former jurisdiction of the ECtHR. There is (or was?) no need for the alleged
victim to have the state’s nationality or to have their residence therein, and, as been
emphasised, even when a state commits a violation outside its territory against aliens, it may
be deemed responsible under the ECHR. A more restrictive interpretation would be contrary
to the whole system of the ECHR.45 Due to these statements, the Banković decision seems to
establish a somewhat restrictive interpretation of the term jurisdiction. Furthermore Scheinin
evaluated the decision as crucial, because the ECtHR made a methodological mistake in not
addressing the issue of extraterritorial effect under the approach “facticity creates nomativity”
(or control entails responsibility).46 And also Lawson stated that against the jurisprudential
background the ECtHR´s ruling in Banković “comes as a disappointment”.47
As we see, the literature is not unanimous with reference to Banković. But what did the Court
itself? Have the judges obeyed Banković or interpreted the wordings in the way like Wilde
has done? A small couple of judgements – dealing with this problem – actually appeared. The
first was Öcalan v. Turkey in 2003 and in 2004 the ECtHR´s decisions on Ilascu v. Moldovia
and Russian Federation and Issa v. Turkey. Admittedly there must be added that the decisions
on the admissibility of the case of Öcalan and Issa were taken before Banković has been
judged.

42
R. Wilde; above p. 117
43
McGoldrick; Extraterritorial Application of the ICCPR in: Coomans/Kamminga p. 41(72)
44
McGoldrick;ibid.
45
V. Mantouvalou, IJHR, Vol. 9 No.2, p. 147(159)
46
M. Scheinin, Extraterritorial Effect of the ICCPR; in Coomans/Kamminga; p. 73(80); to the explanation of the
approach used by Mr. Scheinin I will comment in the next chapter
47
Rick Lawson, above. p. 107
 9

The background of Öcalan is, that Öcalan, the leader of the PKK, was arrested in Kenya by
Turkish security forces and transferred to Turkey. The ECtHR was not barred from declaring
the claim admissible in 2000, though it took place outside Turkish territory.48 In its Judgement
the ECtHR referred to the Banković-decision but found that the arrest of the applicant took
part “within the jurisdiction” of Turkey on more factual reasons. So the ECtHR held:
that the circumstances of the present case are distinguishable from those in the
aforementioned Banković and Others case, notably in that the applicant was physically
forced to return to Turkey by Turkish officials and was subject to their authority and
control following his arrest and return to Turkey.49

The questionemerges, whetherÖcalan was “within the jurisdiction” of Turkey by virtue of the
exercise of effective control by the Turkish agents or because he was physically forced to
return to Turkey?50 From the wording of the judgement the latter seem more persuasive.
Banković was not recalled by the Öcalan-decision.
And also Ilascu gives no real information about the ECtHR´s relationship to Banković. In this
case the ECtHR had to wrestle with the responsibility of Moldova an Russia for events which
occurred in that part of the former Moldovian Soviet Republic known as Transdniestria,
which has separatist ambitions and had in September 1990 declared itself to be the
independent Moldovian Republic of Transdniestra. The application mainly concerns acts
committed by the authorities of the “Moldavian Republic of Transdniestria” (the “MRT”), a
region of Moldova which proclaimed its independence in 1991 but is not recognised by the
international community.51 The Court begins by recapitulating its earlier case law.52 Since the
ECHR is an international treaty, the concept of jurisdiction must reflect this concept under
international law.53 The ECtHR went on, that the concept of jurisdiction is not necessarily
limited to the national territory of a State Party to the Convention and recalled its judgements
of Loizidou and Cyprus v. Turkey.54 Furthermore it notes, that acquiescence or connivance of
the authorities of a Contracting State in the acts of private individuals which violate the
Convention rights of other individuals within its jurisdiction may engage the State’s

48
Öcalan v. Turkey (No. 46221/99), Admissibility decision of 14.12.2001
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=%F6calan&sessionid
=9656502&skin=hudoc-en
49
Öcalan v. Turkey (No. 46221/99), judgement from 12.03.2003, para 97
http://cmiskp.echr.coe.int/tkp197/view.asp?item=11&portal=hbkm&action=html&highlight=Turkey%20%7C%
201&sessionid=9656367&skin=hudoc-en
50
Rick Lawson, above. p. 119/120
51
Ilascu a.o.v. Moldovia and Russian Federation (No.48787/99); judgement from 08.07.2004
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=ilascu&sessionid=96
56535&skin=hudoc-en
52
Loizidou v. Turkey, Cyprus v. Turkey, Banković v. Belgium a.o.
53
Jacobs/White, the ECHR 2006, p. 24-25
54
ibid. p. 25
 10

responsibility under the Convention and that the international responsibility of the Russian
Federation was engaged by reason of its continuous and active support for the “Moldavian
Republic of Transdniestria”.55 With regard to the crucial statement on the legal scope in
Banković the ECtHR affirmed its pre-Banković case law:
Moreover, the Court observes that, although in Banković and Others it emphasised the
preponderance of the territorial principle in the application of the Convention, it has
also acknowledged that the concept of “jurisdiction” within the meaning of Article 1
of the Convention is not necessarily restricted to the national territory of the High
Contracting Parties (see Loizidou v. Turkey ).56

This may favour the supporters which criticised Banković. But additionally there must be said,
that despite declaring the case admissible on case of jurisdiction, this decision was – contrary
to Banković – not reached unanimously.
Finally, Issa was also decided in affirming Banković and the pre-Banković-cases. The case
was brought before the ECtHR by Iraqi women on their own behalf and on behalf of their
deceased relatives (shepherds). Both they and their relatives were shepherds, living in
northern Iraq, near the Turkish frontier. They claimed that as a result of the Turkish military
operations in Iraq a series of articles of the ECHR had been violated. The ECtHR found the
application inadmissible because of missing proof whetherthe killing of shepherds has been
de facto took place by Turkish armed forces who operated in Iraq.57 Before finding this
conclusion the court stated again, that – while jurisdiction is primarily territorial:

the concept of “jurisdiction” within the meaning of Article 1 of the Convention is not
necessarily restricted to the national territory of the High Contracting Parties […]
and as a consequence of this military action, the respondent State could be considered
to have exercised, temporarily, effective overall control of a particular portion of the
territory of northern Iraq. Accordingly, if there is a sufficient factual basis for holding
that, at the relevant time, the victims were within that specific area, it would follow
logically that they were within the jurisdiction of Turkey (and not that of Iraq, which is
not a Contracting State and clearly does not fall within the legal space (espace
juridique) of the Contracting States (see the above-cited Bankovic decision).58

Although Banković is not recalled expressly, the decision shows that the ECtHR did not
necessarily exclude non-conventional territory from the jurisdiction of the ECHR. And as
Mantouvalou stated: “It is evident, in the cases discussed above, that for the purposes of

55
Ilascu a.o. v. Moldovia and Russian Federation (No.48787/99); para 318/393
56
Ilascu a.o. v. Moldovia and Russian Federation (No.48787/99); para 314
57
Issa a.o. v. Turkey (No. 31821/96), judgement from 16.11.2004, para 81
http://cmiskp.echr.coe.int/tkp197/view.asp?item=13&portal=hbkm&action=html&highlight=Turkey%20%7C%
201&sessionid=9656367&skin=hudoc-en
58
ibid. para 68/74
 11

establishing jurisdiction the ECtHR deems the manner and the character of the state act more
crucial than the territory where the act took place.”59

2.4 The American approach

In comparison to the European approach it is questionable whether and how the IACHR
follows the European case law and if not, what is different.
First of all it is useful to clarify that the IACHR developed the system of extraterritorial
application no solely on the ACHR but merely on the American Declaration. The latter is
closely connected to the fact, that single states like the US are not party to the ACHR.
A good example for the exercise of jurisdiction under the ACHR is the Victor Saldaño case
from 1998. This case deals with an Argentine national who had been sentenced to death in the
US. The IACHR stated that the term jurisdiction in the sense of Article 1 (1) of the ACHR is
not limited to, or merely coextensive with, national territory. To confirm this theory the
IACHR cited the European Commission and followed its jurisdiction-responsibility
approach.60
Although the American Declaration is not treaty, the IACHR created a system of monitoring
human rights under it. Article II of the American Declaration is sometimes referred to,
inappropriately, as the jurisdictional clause, but is more accurately identified as an
autonomous substantive rights provision entitled ´Right to equality before law´.
Cerna distinguishes the approach of the IACHR´s exercise of extraterritorial jurisdiction
under the American Declaration in three groups: (1) the Soering line cases, (2) effective
control cases, and (3) cases in which extraterritorial application was not questioned.61
The most important case fitting in the first type is that of the fleeing Haitians whom were
interdicted to land on US territory in 1990 and were sent back to Haiti were they had to face
real risk of violation of the ´refugees´ human rights. With regard to the Soering decision of the
ECtHR and also the HRC´s decision in Ng v Canada, the IACHR stated:
The Commission has noted the petitioner’s argument that by exposing the Haitian
refugees to the genuine and foreseeable risk of death, the United States Government's
policy of interdiction and repatriation clearly violated their right to life protected by
Article I. The Commission has also noted the international case law which provides that if
a State party extradites a person within its jurisdiction in circumstances, and if, as a

59
V. Mantouvalou, IJHR, Vol. 9 No.2, p. 147(153)
60
Victor Saldano v. Argentina, Petition, Report No. 38/99, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at
289 (1998), para 17-19 http://www1.umn.edu/humanrts/cases/1998/argentina38-99.html
61
C.M. Cerna; The Inter American System; p. 147
 12

result, there is a real risk that his or her rights under the Covenant will be violated in
another jurisdiction, the State party itself may be in violation of the Covenant. 62

“Effective control” over persons as the second group of extraterritorial jurisdiction can result
from ´military occupation´, ´military control´ and ´detention´.
Two cases of the US invasion in Grenada deal with ´military occupation´. In Coard v. US63
the applicants clamed that during the US military operations in Grenada in 1983 a series of
violations of the American Declaration had been committed. The Commission held that even
though jurisdiction usually refers to the state’s territory, it may, under given circumstances,
refer to conduct with an extraterritorial locus, where the person concerned is present to the
territory of one state, but subject to the control of another state – usually to the acts of the
latter’s agents abroad.64 The Disabled Peoples´ International65 case addresses almost the
same problems and was settled friendly.
The ´military control´ approach came in question with Cuban military intervention in the
international airspace in 1996. The facts alleged that a Cuban MIG-29 military aircraft shot
down two civilian unarmed airplanes belonging to an anti-Castro organisation.66 The decision
ties up to the Cyprus v. Turkey decision of the European Commission and points out, that:
…agents of the Cuban State, although outside their territory, placed the civilian pilots of the
"Brothers to the Rescue" organization under their authority. Consequently, the Commission
is competent ratione loci to apply the American Convention extraterritorially to the Cuban
State in connection with the events that took place in international airspace on February 24,
1996.67
It can be mentioned that this case is very similar to Banković. But in opposite the IACHR
suggests a ´cause and effect´ theory of jurisdiction, categorically repudiated by the ECtHR.68
The ´detention´ cases are in deed up to date, although most of the people connect with them
only the detention of ´unlawful combatants´. But first of all it was a case of the so called
´Marielito Cubans´ which were detained by US for an uncertain time. The IACHR held that
the state became the guarantor of the rights set forth in the American Declaration when the
petitioners came within the State’s authority and control.69

62
Haitian Centre of HR a.o. v. US; Appl.No. 10.675;decision on merits 10.03.1997, para 167
http://www1.umn.edu/humanrts/cases/1996/unitedstates51-96.htm
63
Coard a.o. v. US, Appl.No. 10.951, 29.09.1999 http://www1.umn.edu/humanrts/cases/us109-99.html
64
ibid, para 37
65
Richmond Hill v. US Appl. No. 9213, 01.03.1996 http://www1.umn.edu/humanrts/cases/1996/us3-96.htm
66
Brothers of the Rescue v. Cuba, Appl. No 11.589, 29.09.1999 http://www1.umn.edu/humanrts/cases/86-
99.html
67
ibid. para 25
68
C.M. Cerna; above; p. 158
69
ibid p. 162
 13

In accordance to the arrested in Guantanamo Bay the non-derogable human rights must be
granted to those which are under the authority and control of a state, regardless they are
detained during and due to an armed conflict.70 The Commission stressed that, according to
international norms applicable in peacetime and wartime, such as those reflected in Article 5
of the 3rd Geneva Convention and Art. XVIII of the American Declaration. A competent court
or tribunal, as opposed to a political authority, must be charged with ensuring respect for the
legal status and rights of persons falling under the authority and control of a state.
Considering, thus that Guantanamo Bay though outside the US territory fell within the state’s
jurisdiction, the Commission is going to examine the merits of the case.71
Giving a summary of the IACHR case law due to extraterritorial application of human
rights the connection to the European approach is quite clear and the IACHR itself refers
more than ones to the European cases. On the other hand the European and the American
Approach are not equal in every sens. In the American Approach different grounds of
extraterritorial application are emphasized. Whilst the ECtHR stresses effective control of
territory or consent by the territorial state, the IACHR points out effective control over the
person. In any event the IACHR appears to give broader extraterritorial application to the
American Declaration than does the ECtHR to the ECHR. For example, while the IACHR
held Cuba responsible for shooting down a plane outside its territory (on the high seas), the
ECtHR found no jurisdiction over the NATO bombing in Belgrade. The reasons for this are
supposed to bet (1) the American Declaration includes no jurisdiction clause; (2) the IACHR
has a broader mandate, including reports and policy recommendations; (3) the most favoured
rights clause in Article 29 of the American Declaration (not applied in practice); and (4) the
IACHR is an principal human rights organ and its task is to patrol and improve human rights
and to consult to the OAS72. But according to these explanations it is not clear how the
IACHR would decide, if the killing of an alleged al-Qaeda leader in Yemen by an American
missile would be claimed.73

2.5 The HRC and extraterritorial application

Prima facie the wording of Article 2 (1) ICCPR with its phrase within its territory and subject
to its jurisdiction seems that state liability for extraterritorial application was excluded on

70
ibid p. 163
71
V. Mantouvalou, IJHR, Vol. 9 No.2, p. 147(154)
72
Organisation of the American states
73
D.Cassel; Extraterritorial Application of Inter-American Human Rights Instruments; pp.175-180
 14

purpose. In contrast to the ICCPR the 1st Optional Protocol provides that the HRC can reach
communications from applicants “subject to its jurisdiction”. But does this difference support
the narrow interpretation of Article 2 (1) ICCPR?
Actually the HRC dealt with extraterritorial application of human rights treaties in several
cases, reports and also in its General Comment No. 31 and in some other General Comments
respectively. The HRC has interpreted the jurisdictional clause in a rather expansive way - as
it will be presented subsequently.
In its first cases the HRC was concerned with the so called Uruguayan cases.74 Here the
responsibility of a state for violations of state’s agents on foreign territory had been
discussed. The HRC held that the Uruguayan agents acted within the state’s jurisdiction and
stated:

Article 2 (1) of the Covenant places an obligation upon a State party to respect and to
ensure rights "to all individuals within its territory and subject to its jurisdiction", but it
does not imply that the State party concerned cannot be held accountable for violations of
rights under the Covenant which its agents commit upon the territory of another State,
whether with the acquiescence of the Government of that State or in opposition to it.
According to article 5 (1) of the Covenant: Nothing in the present Covenant may be
interpreted as implying for any State, group or person any right to engage in any activity
or perform any act aimed at the destruction of any of the rights and freedoms recognized
herein or at their limitation to a greater extent than is provided for in the present
Covenant. 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.75

Tomuschat clarified in its individual opinion the statements of the HRC. He noted that if state
responsibility were only limited within the national boundaries, the result would be absurd.
Nevertheless, the original intention, nevertheless, must have been to restrict the territorial
scope of the ICCPR, in case there were serious obstacles impeding the protection of a state’s
citizen abroad.76 Scheinin calls this approach a view of ´facticity determining normativity´;
i.e. even if someone’s human rights are violated in country A, country B cannot be said to be
responsible for that violation unless it had some factually possible and meaningful way to
prevent the violation77 or in other words: “effective control”.

74
Lopez Burgos v. Uruguay Comm. No,52/1979; Casariego v. Uruguay Comm. No. 56/1979
http://sim.law.uu.nl/SIM/CaseLaw/CCPRcase.nsf/40aef4fd0f005d2d41256c0200335b4c/016d41afd364b7a6c12
5664b002c5242?OpenDocument
75
Lopez Burgos v. Uruguay, para 12.3
76
V. Mantouvalou, IJHR, Vol. 9 No.2, p. 147(155) which refers to individual opinion to Lopez Burgos v.
Uruguay, ibid.
77
M. Scheinin, above, p. 75
 15

The HRC was also concerned with several ´passport´ cases, also against Uruguay.78 The
applicants all claimed a violation of Article 12(2) ICCPR which guarantees freedom of
movement. The HRC held that it followed from the very nature of Art. 12 (2) ICCPR that a
state’s obligations on the ICCPR were not limited though the applicants were residing
abroad.79
In cases dealing with extradition, the HRC did not mention territory at all but merely referred
to the State’s jurisdiction. In Kindler v. Canada which is about the applicant’s extradition to
the US where he might face the death penalty, the HRC considered – in opposite to the State
responsible- that:
if a State party takes a decision relating to a person within its jurisdiction, and the
necessary and foreseeable consequence is that that person's rights under the Covenant
will be violated in another jurisdiction, the State party itself may be in violation of the
Covenant.80

In Ng v. Canada81 the HRC followed similar reasoning and found that it was competent
ratione loci to examine whether extradition to the US where death by gas asphyxiation might
be imposed on the applicant would violate article 7 of the ICCPR.
Furthermore the HRC asserted that the existence and the scale of application of the death
penalty – compounded by extraterritorial persecution – constituted a flagrant violation of the
State party’s commitment under the Covenant to protect the right of life.82 And due to the US
it stated that it does not share the view that the Covenant lacks extraterritorial reach under all
circumstances. Such a view is contrary to the consistent interpretation of the Committee on
this subject that, under special circumstances persons may fall under the subject-matter
jurisdiction of a state party when outside the state’s territory.83 Due to this the HRC gives in
its Concluding Observation on Israel from 2003 information on the condition of
extraterritorial state responsibility. Those may appear if the state has effective control over a
territory.84

78
Vidal Martins v. Uruguay, Comm No.57/1979 ; Lichtenszteijn v. Uruguay Comm No. 77/1980; Pereira
Montero v. Uruguay Comm. No. 106/1981
79
S. Joseph a.o. The ICCPR – Cases, materials and Commentary; p 90 para 4.14
80
Kindler v. Canada; Comm. No.470/1991, para 6.2
http://sim.law.uu.nl/SIM/CaseLaw/CCPRcase.nsf/40aef4fd0f005d2d41256c0200335b4c/9f6b1a7767b54ab4c12
5664b002c5b79?OpenDocument
81
Ng v. Canada, Comm. No. 469/1991
http://sim.law.uu.nl/SIM/CaseLaw/CCPRcase.nsf/40aef4fd0f005d2d41256c0200335b4c/edf39961b1faf720c125
664b002c5b73?OpenDocument
82
Summary Record of the 1253th Meeting: Iran, CCPR/C/SR.1253, para 63 http://www.unhchr.ch/tbs/doc.nsf
83
Concluding Observation on the US: CCPR/C/79/Add.50; para 19 http://www.unhchr.ch/tbs/doc.nsf
84
Concluding Observation on Israel; CCPR/C/79/Add. 93 (1998), para. 10
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/7ea14efe56ecd5ea8025665600391d1b?Opendocument
 16

The Committee is therefore of the view that, under the circumstances, the Covenant must
be held applicable to the occupied territories and those areas of southern Lebanon and
West Bekaa where Israel exercises effective control.

Finally, as already mentioned, the HRC concerned in several General Comments the problem
of extraterritoriality. For example, in its General Comment on Article 27, it referred to Article
2(1) as applying to all individuals “within the territory or under the jurisdiction of the state”;
and accordingly in its General Comment on Art. 41, the HRC asserted in broad and
categorical terms that the intention of the Covenant is that the rights contained therein should
be ensured to all those under a State party’s jurisdiction.85 General Comment No. 31
summarises the whole, updated opinion of the HRC on the interpretation of the jurisdiction
clause in Article 2(1) ICCPR.86 First, the terms ´territory´ and ´jurisdiction´ are used
alternatively. Second, the rights set forth in the covenant shall be respected and ensured to all
persons within the power or effective control of the State Party even it not situated within the
territory of it. And finally, the General Comment provides a broad applicability, in stating that
“asylum seekers, refugees, migrant workers and other persons, who may find themselves in
the territory or subject to the jurisdiction of the State Party” are included; and “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 operations.”87 State Parties are therefore
responsible for the actions of their armed forces stationed abroad, such as the overseas forces
in Iraq in 2003. This opinion is underlined by the Concluding Observations on Belgium and
the Netherlands.88

2.6 Interdependence between Universality of HR and extraterritorial application

As outlined above there exists no uniform interpretation of extraterritorial application. The

outcome of the cases may be similar, but the methodology is variable. Some of the scholars
prefer an approach via international public law and using Article 31 and 32 of the VCLT.89
Others point out the universal character of human rights and quote for an independent
approach.

85
T.Meron; Extraterritoriality of Human Rights Treaties; AJIL Vol. 89, No.1 p.78(79)
86
HRC; General Comment No 31 from 29.03.2004, para 10
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.21.Rev.1.Add.13.En?Opendocument
87
HRC; ibid.
88
S. Joseph a.o. above; p 91 para 4.15
89
Vienna Convention on Law of Treaties between States
 17

Those argument which counts for the first approach is that human rights treaties are treaties
between states and the VCLT was created to manage such treaties.90 This was also outlined by
the ECtHR in Banković, which interpreted the meaning “within its jurisdiction” from the
standpoint of international law.”91 And McGoldrick supports this approach in interpreting
Article 2 (1) ICCPR under the rules of Articles 31 and 32 VCLT.92
Scheinin stated due to this approach that he finds the consequences of it quite limited. Human
rights law has in his opinion developed into a stage of relative autonomy where it assumes
features of a constitution, i.e. an objective normative order above states, contrasted with the
essentially contractual nature of public international law, based on consent and reciprocity.93
Actually the true controversial subject seems not to be that of independent approach contra
international public law approach but rather the already mentioned conflict between “facticity
creates normativity”94 on one side and the separation of the question of jurisdiction and the
content of rights95 on the other side. It is not a problem of the differences between the
international public law approach and the independent approach because – as Lawson pointed
out: This principle (control entails responsibility) appears to be well accepted in general
public international law.96 The interdependence-approach seems more analogue to the
universality-concept of human rights. Human rights are inherent, that means they are not
deprivable and cannot be renounced, even not by states. The concept of jurisdiction, therefore,
must be construed as a human rights concept. This makes the above discussed Banković
decision more difficult to justify, as it is not only a reversal of previous case law, but also a
refutation of the traditional principles of human rights treaties interpretation that have been
laid down in the ECtHR´s jurisprudence.97 Also the Inter American Court of Human Rights
emphasises this in an advisory opinion:
In the case of human rights treaties[…] objective criteria of interpretation that look to
the texts themselves are more appropriate than subjective criteria that seek to ascertain
only the intent of the Parties. This is so because human rights treaties, as the Court has
already noted, are not multilateral treaties of the traditional type concluded to accomplish
the reciprocal exchange of rights for the mutual benefit of the contracting States; rather
their object and purpose is the protection of the basic rights of individual human beings,
irrespective of their nationality, both against the State and all other contracting States.98

90
Article 1 VCLT: The present Convention applies to treaties between States.
91
Banković para. 57
92
McGoldrick, above, pp 44,47
93
M. Scheinin,above, p. 78;
94
supported by: Scheinin, above, p. 75; Lawson, above, p.86; Mantouvalou, above, p. 157
95
supported by: McGoldrick, above, p. 46; the ECtHR in Banković
96
Lawson, above, p. 86
97
V. Mantouvalou, IJHR, Vol. 9 No.2, p. 147(157)
98
Inter American Court of Human Rights, Advisory Opinion of 08.09.1983, Restrictions to the Death Penalty,
para 50 http://www1.umn.edu/humanrts/iachr/b_11_4c.htm
 18

To sum it up, it can be said that there exists no consistent definition of extraterritorial
application within the scope jurisdiction. It depends on the approach, and the only thing which
is actually clear is that any act of a state may have some extraterritorial effect.

3. Human Rights and International Humanitarian Law

Many of the above mentioned cases took part in times of armed conflicts or feature a
connection to such a conflict. This leads to the question of the relationship between human
rights law and international humanitarian law99. Actually this problem features a wide field
which will be only sketched in this essay.
Due to the applicability of human rights in times of armed conflict this question seems more
important because most of the armed forces of state parties act on foreign territory as peace –
enforcing or peace – keeping forces. And what about all the detainees in Guantanamo, Abu
Ghraib or other prisons? Is it lawful to treat them as “enemy combatants” as the US do? How
to monitor this “war on terror”? Is there a need of applicability of human rights treaties in
times of armed conflicts?
The four Geneva Conventions do not have a jurisdictional clause. So it is axiomatic that the
law of war or IHL obligates members of the armed forces of a state regardless of whether they
operate in or outside the territory of that state.100 Unlike human rights treaties, the protections
of the four Geneva Conventions and the additional protocols are not expressly limited on the
basis of jurisdiction or territory. Extraterritoriality is not an issue in international humanitarian
law for obvious practical reasons.101 But although it is not as prominent in limiting the
responsibility of parties to the conflict as it is in the case of human rights law. The key issues
are the existence of a conflict and the link between a person and the conflict – i.e. the notion
of persons affected by a conflict – rather than territory.102
Despite this seemingly broad scope IHL allow more limitations of human rights then the
human rights treaties. IHL applies during armed conflicts. International human rights law
applies in all times. The principle of lax specialis suggests that IHL is operative where the two
bodies of law overlap. But as Ross explains: Because, the boundaries of IHL are not always
clear – that is, the temporal, subject, personal, and territorial jurisdiction – its applicability

99
herinafter: IHL
100
Meron, above, p. 78
101
Gillard, International Humanitarian Law and extraterritorial State Conduct;in: Coomans/Kamminga, p. 27
102
ibid. p. 31
 19

vis-à-vis human rights law is also not always clear.103 This may cause a gap – a kind of
extralegal sphere.
A good example for this is that of the prisoners of Guantanamo which were captured during
the “war on terror” in Afghanistan and elsewhere in the world. They are treated as “unlawful
combatants”. As such, they are not entitled to the protections of the 3rd and the 4th Geneva
Convention respectively. With regard to those, which were captured in Afghanistan during the
armed conflict, the detainees must – due to the Geneva Convention – be seen as prisoners of
war or protected persons. Against its former state practice the US did not entitle them to this
status. And they should be prosecuted by courts that meet international fair trial standards.104
But what about those who have been captured e.g. in Europe, where no armed conflict took
part and where no direct connection to the armed conflict exists? In this case the Geneva
Conventions are not applicable. And this creates a gaping and dangerous loophole in
international HR guarantees.105 In its decision on precautionary measures in Guantanamo the
IACHR tries to close this loophole by stating:
Accordingly, where persons find themselves within the authority and control of a state and
where a circumstance of armed conflict may be involved, their fundamental rights may be
determined in part by reference to international humanitarian law as well as international
human rights law. Where it may be considered that the protections of international
humanitarian law do not apply, however, such persons remain the beneficiaries at least of
the non-derogable protections under international human rights law. In short, no person
under the authority and control of a state, regardless of his or her circumstances, is
devoid of legal protection for his or her fundamental and non-derogable human rights.106

This statement bridges to the former case law on extraterritorial application. Human rights are
applicable where persons are within the authority and control of a state.
Next to the prisoner-cases, the responsibility of states for inhuman acts of their armed forces
abroad and of supported national-parties leads to almost the same questions. The International
Court of Justice107 had to deal with the latter constellation in its Nicaragua v. US decision.
There the Court found that the US are responsible directly in connection with the activities of
the Contras, but not for the acts of the Contras:
The United States of America, by directing or authorizing overflights of Nicaraguan
territory, and by the acts imputable to the United States referred to in subparagraph (4)

103
J. Ross; Jurisdictional Aspects of international Human Rights and Humanitarian Law in the War on Terror,
in: Coomans/Kamminga; p.10
104
Ross; above; p. 20
105
ibid, p. 21
106
IACHR; Precautionary Measures in Guantanamo Bay; 13.3.2002
http://wwwserver.law.wits.ac.za/humanrts///iachr/guantanamomeasures2002.html
107
hereinafter: ICJ
 20

hereof, has acted, against the Republic of Nicaragua, in breach of its obligation under
customary international law not to violate the sovereignty of another State;.108

Based on the rules that a state may be responsible if it controls a foreign group, the US can
(perhaps) made responsible for the acts of the Northern Alliance in Afghanistan.109 And the
same principles must apply to the own troops because of the more narrow link to the sending
state. For this, e.g. in cases of torture the state concerned may be responsible under the
Convention against Torture as well as under the Geneva Convention if a agent tortures or if
the state is complicit in torture committed by others.110 The Convention against Torture has
also no extraterritorial limit, why it is on this point worldwide applicable.
Unfortunately, that is the theory. In practice most of the cases are obscured and the states do
not found themselves responsible. Theoretical, human rights are not precluded from applying
in international conflicts.111 But the topical incidences show that conceptualizing the
campaign against global terrorism as an international armed conflict risks undermining the
integrity of international humanitarian law.112
Summarising the relationship of IHL and human rights law there is no real borderline but
rather a smooth transition. This causes gaps, like that of the treatment of “unlawful
combatants”. This partly extraterritorial use of force against person can – because of the non-
applicability of IHL – only be enforced by human rights law.113 And another important
difference is the enforcement of IHL on the on side and human rights on the other. Claims due
to breaches of IHL can be brought before the ICJ. But the ICJ does not have compulsory
jurisdiction and so this approach is no perfect solution. Despite this difference the Banković
case shows that the enforcement of human rights is in no case more precise.

4. Conclusion

According to the achievements above, the interpretation of "jurisdiction” and the therewith
linked question of extraterritorial application of human rights treaties is not solved and leaves
tasks for the international community. Especially the discussions on Banković point out, that
there is a wide scope of interpretation, e.g. due to the supposed decision of Banković by the
HRC. From the result Banković would be decided similar, because Yugoslavia was a member

108
Nicaragua v. US, ICJ 27.07.1986, decison http://www.icj-
cij.org/icjwww/icases/inus/inus_ijudgment/inus_ijudgment_19841126.pdf
109
see also: Ross, above, p.12
110
Ross, above, p. 13
111
Gillard, above, p. 35
112
J. Fitzpatrick; Speaking Law to Power; The War against Terrorism and Human Rights
113
Gillard, above, p.39
 21

state to the ICCPR. But what in cases of states, which are not members? If we would read the
HRC´s Comment 31 literally as it prescribes the application of the ICCPR “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” there would be no
limitation to the territory of the ICCPR State Parties. This approach is also supported by
Meron: “In view of the purposes and objects of human rights treaties, there is not a priori
reason to limit a state’s obligation to respect human rights to its national territory.”114
Extraterritorial application is therefore not an exception, as the ECtHR alleged in Banković.
That figures out also that enforcement of human rights depends on the obligations of the states
and the interpretation of these obligations by the human rights bodies. And, maybe, there will
be the day, that under certain circumstances member states to human rights treaties can be
made responsible for violation of human rights committed by their armed forces in
Afghanistan, Iraq or elsewhere.
The scope of extraterritorial application is not clear at all and leaves space for interpretation
and argumentation. The effectiveness of human rights organisations can only increase from
well reasoned expansions of the notion of jurisdiction. Should the gap between jurisdiction
and state responsibility be closed, human rights advocacy will be more consistent and
persuasive. In this way, the impact of the international adjudicative bodies can reach well
beyond the individual case or treaty, and well beyond their jurisdiction.115

114
Meron, above, p. 80
115
Ross, above, p.24