[...] Law, Philosophy and Complications in the Extra-territorial Application of the ECHR
| Author | Dario Rossi D’Ambrosi |
The Human Rights of the Other – Law, Philosophy and
Complications in the Extra-territorial Application
of the ECHR
Dario Rossi D’Ambrosio*
This Article addresses different perspectives on the extra-territorial
applicability of the European Convention onHuman Rights (ECHR).
Section 2 focuses on the different interpretations of the concept of State
jurisdiction attempted by the Strasbourg Court and academics. Through
the guidance of article 31 of the Vienna Convention on the Law of
Treaties, a legal interpretation of the term ‘jurisdiction’ is suggested. A
conception of ‘jurisdiction’ disconnected from territorial boundaries and
focused on the relationship of power between the State and the individual
seems required by the meaning of the term ‘jurisdiction’ in the context of
human rights law, its coherence with the object and purpose of the ECHR,
and its belonging to international human rights law. Section 3 questions
some of the current philosophical understandings and groundings of
human rights. Departing from the idea that the groundings of current
theories justifying the extra-territorial applicability/non-applicability of
the ECHR are not completely justified from a philosophical perspective,
the present Article tries to propose different foundations. Through the
works of Arendt and Levinas and critiques to cosmopolitanism, this Article
suggests different foundations for the extra-territorial application of the
ECHR, in harmony with and in support of the legal interpretation proposed
in Section 2. Section 4 addresses some of the practical complications
deriving from the extra-territorial application of the ECHR, such as the
relationship between human rights and international humanitarian law, the
relationship between human rights and Occupation Law, and the risk of
human rights imperialism. In conclusion, an overall appraisal of the issues
covered in this Article warrants a process of extra-territorial application of
the ECHR based on an actual recognition of the human rights of the Other.
* Dario Rossi D’Ambrosio obtained a Master’s Degree in Law from the Università di Roma Tre,
Italy and is a LLM in Human Rights, Conflict and Justice graduate from SOAS, University of
London. He wishes to thank Dr Lutz Oette for his precious guidance, Helena Van Roosbroeck
for her acute insights, and Isabella Mighetto for her kind suggestions.
2 The Human Rights of the Other – Law, Philosophy and Complications
www.soaslawjournal.org
I. INTRODUCTION
International law’s energy and hope lies in its ability to articulate
existing transformative commitment in the language of rights and
duties and thereby to give voice to those who are otherwise routinely
excluded. This can not mean fixing the law’s content permanently to
definite institutional or normative structures. It is a formal idea that
seeks community by understanding that every community is based
on an exclusion and that therefore it must be a part of an acceptable
community’s self-definition that it constantly negotiates that
exclusion, widens its horizon [sic].
Martti Koskenniemi1
In Al-Skeini, Lord Rodger observed that the application of the European
Convention on Human Rights (ECHR) in Iraq would have been inappropriate
because the Court could have run the risk of being accused of human rights
imperialism.2 This is an interesting perspective that casts shadows on the
sanctity of human rights, although in the case of Al-Skeini the argument may
appear ironic.3 Naturally, in the research conducted on the topic of extra-
territorial application of the ECHR and its potential down-side of human rights
imperialism, many other and more general themes have emerged. For example,
there exists the danger of the collapse of the entire building by referring to, in
Douzinas’ words, ‘a strange and almost metaphysical’4 existence of human
rights, ‘even when they have not been legislated’.5 Through three different
threads of research, which may at times appear incomplete or inconclusive, it is
hoped that it will be possible to clutch at some hints for overcoming current
obstacles to a coherent extra-territorial application of the ECHR.
Historically, rights have been limited to the members of a community, fostering
dynamics of inclusion-exclusion from protection.6 The concept of statehood
itself is essentially related to the concept of territory.7 Thus, human rights are
1 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-
1960 (CUP 2001) 517.
2 R (Al-Skeini) and others v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153 [78].
3 As if respecting the right to life of Iraqi citizens would annihilate their cultural differences
from the UK.
4 Costas Douzinas, Human Rights and Empire (Routledge 2007) 344.
5 ibid.
6 Hannah Arendt, The Origins of Totalitarianism (Schocken 2004) 341-84.
7 Pierre Bourdieu, Sur L’État: Cours au Collège de France (1989-1992) (Raisons d’agir 2012) 196-99;
Malcolm Anderson, Frontiers – Territory and State Formation in the Modern World (Polity 1996) 18,
24-26.
(2015) Vol. 2, Issue 1 Dario Rossi D’Ambrosio 3
SOAS LAW JOURNAL
often understood as territorial rather than extra-territorial8 and the extra-
territorial extension of human rights obligations may be considered
anomalous.9 However, a feature of past and contemporary human rights
violations is the detachment from State territory. For instance, in current times
States involved in the “war on terror” use ‘extra-territorial loci’ to detain and
interrogate suspected terrorists, in order to avoid public scrutiny.10
Significantly, the ECHR prescribes that ‘[t]he High Contracting Parties shall
secure to everyone within their jurisdiction the rights and freedoms defined in
Section I of this Convention’.11 Similar provisions may be found in other treaties
on civil and political rights.12 The reference to the word ‘jurisdiction’ and not
‘territory’ is a common feature of international human rights treaties in the
post-WWII era.13 International supervisory bodies of certain human rights
treaties agree on the point that ‘jurisdiction’ and ‘territory’ are not one and the
same.14 Thus, mutatis mutandis and with due precaution, the analysis and main
argument of this Article might be relevant for other human rights treaties.15
8 Matthew Craven, ‘Human Rights in the Realm of Order: Sanctions and Extraterritoriality’ in
Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights
Treaties (Intersentia 2004) 233, 239; Ralph Wilde, ‘Legal “Black Hole”? Extraterritorial State
Action and International Treaty Law on Civil and Political Rights’ (2005) 26 Michigan Journal of
International Law 739, 754.
9 Craven, ‘Human Rights’ (n 8) 241.
10 Wilde, ‘Legal “Black Hole”?’ (n 8) 741-52.
11 Convention for the Protection of Human Rights and Fundamental Freedoms (European
12 American Convention on Human Rights (Pact of San Jose) (adopted on 22 November 1969,
entered into force 18 July 1978), OAS Treaty Series No. 36, 1144 UNTS 123, (ACHR) art 1 and
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999UNTS 171 (ICCPR), art 2.
13 Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights:
Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25(4)
Leiden Journal of International Law 857, 863-64.
14 UN Human Rights Committee, ‘General Comment 31’ in ‘Nature of the General Legal
Obligation on States Parties to the Covenant’ (2004) UN Doc CCPR/C/21/Rev.1/Add.13. See also
Coomans and Kamminga (n 8) 3.
15 For the difference between human rights treaties and other treaties in international law, see
Matthew Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in
International Law’ (2000) 11 European Journal of International Law 489. In the European
context, the EComHR stated that State obligations ‘are essentially of an objective character,
being designed rather to protect the fundamental rights of individual human beings from
infringements by any of the High Contracting Parties than to create subjective and reciprocal
rights for the High Contracting Parties themselves’: Austria v Italy App no 788/60 (Commission
Decision, 11 January 1961). As to the extra-territorial application of economic, social and
cultural rights, see ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) [2004] ICJ Rep 136.
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