Authority, Control and Jurisdiction in the Extraterritorial Application of the European Convention on Human Rights
| Author | Michael Duttwiler |
| Published date | 01 June 2012 |
| Date | 01 June 2012 |
| DOI | 10.1177/016934411203000202 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 30/2, 137–162, 2012.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 137
PART A : ARTI CLES
AUTHORITY, CONTROL AND
JURISDICTION IN THE EXTRATERRITORIAL
APPLICATION OF THE EUROPEAN
CONVENTION ON HUMAN RIGHTS
M D*
Abstract
e condition s under which the European Convention of Human Rights applies outside
a Member State’s territory continue to be imprecisely de ned. is ar ticle attempts
to clarify the meaning of ‘authority’ and ‘control’, the core notions employed by the
Convention organs to determine extraterritorial ‘ jurisdiction’ under Article 1 of the
Convention. In line with early case law, it is argued that a State b rings persons within its
extraterrito rial jurisdiction if it exerci ses actual authority over them . Actual authority,
the article continues, shoul d be understood as the ability to prescribe c onduct. Whether a
State prescribes conduct by for mal or informal means is irrelevant; even seemingly mere
factual acts may have a normative conte nt and constitute authoritative acts. ‘Control’
describes the State’s ability to enforce the conduct it ha s prescribed. Only where it has
such control can the State be said to have actual authority, and therefore juri sdiction,
over the person concerned.
Keywords: actual authorit y; e ective control; European Convention on Human
Rights; extraterritorial application; jurisdiction
Mots-clés : autorité e ective ; contrôle e ectif ; Convention européenne des droits de
l’homme ; application extraterr itoriale ; juridiction
Tref woo rden : e ectief gezag; e ectieve controle; Europees Verdrag voor de Rechten
van de Mens; extrater ritoriale toepassing; jurisdic tie
* Lic. iur. (MLaw), LL.M . (Essex), Attorney-at-Law, Assoc iate Legal O cer in the OTP of the
International Cr iminal Tribunal for the For mer Yugoslavia. e views expressed here in are those
of the author alone and do not ne cessarily re ect the views of t he International Tribuna l or the
Unite d Natio ns in g enera l. e author wou ld like to than k Anna Petrig and Cl ara Sandoval for t heir
comments on this p aper.
Michael Duttw iler
138 Intersentia
1. INTRODUCTION
To the extent that European States increasingly embark on international police or
militar y missions, the question of whether t he European Convention on Human
Rights (ECHR)1 appl ies outside of the domestic territory of Member State s becomes
ever so relevant. ere is an obv ious need for State agents operating on the ground to
know precisely which law applies to thei r conduct. But inevitably, the European Cour t
of Human Rights (ECtHR) approaches the core questions regarding extraterr itorial
application in a casuist ic rather than systematic manner. It has hitherto failed to
create the necessar y legal certainty.
e lack of conceptua l clarity concerns precisely, but not only, the notion at
the centre of the debate, namely ‘jurisdiction’. Absent an express de nition of its
geographical scope , the ECHR applies to persons who come ‘withi n [the] jurisdict ion’
of a Member State. 2 Since the early practice of the Convention organs, jurisdiction
was de ned as the exercise of actual ‘authority’ and ‘control’ over persons. A lready
these notions remained largely unde ned. But the interpretation of jurisd iction was
rendered even more complex by the ECtHR’s decision in Banković et al. v. Belgium et
al. (Banković). 3 Holding that jurisdict ion must be understood as the legal competence,
under international law, to make, adjudicate or enforce the law with rega rd to a certain
situation, it injected an element of legitimac y into the mix: only where a State has the
right to act extraterritorially, may jurisdiction for the purposes of Article 1 of the
ECHR be establi shed.
e ECtHR in Banković claimed that it was this kind of de jure jurisdict ion which
marked the practice of the Convention organs on the extraterritorial application of
the Convention. However, while aspects of de jure jurisdiction were present in many
situations which came before the ECtHR and the European Commission on Human
Rights (EComHR), the relevant decisions d id not hinge on those. Both the EComHR
and the ECtHR have relied heavily on jurisdiction based on actua l authority and
control, rendering legitimacy irrelevant. e ECtHR in Banković expressly le
the door open for such de facto jurisdiction, and its pract ice since then, including
in recent cases such as Al-Skeini et al. v. e UK and Al-Jedda v. e UK, exposes
that the legitimac y of State acts is not a necessary condition to establish Article 1
extraterritorial jurisdiction.
e c onceptual problems therefore remain the same. e core notions of author ity
and control lack clear contours. It is unclea r how they relate to each other, and to the
key concept of jurisdiction. is article tr ies to contribute to conceptual clarity.
1 Convention for the Protec tion of Human Rights and Fu ndamental Freedoms of 4Novemb er 1950,
European Treaty Ser ies no. 005.
2 Art.1 ECHR .
3 ECtHR, Bank ović et al.v. Belgium et al .(Grand Chamber) (admissibility decision), 12December
2001 (Appl.no. 52207/99).
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