ISSUE: To what extent is the European Convention for the Protection of Human Rights and Fundamental Freedoms applicable to acts of a signatory outside its national boundaries, both within and outside the territory of Council of Europe member states? Is the debate on the limits of the espace juridique of the Convention legally still relevant to extraterritorial state actions? What are the practical implications for states of the current approach to extraterritorial jurisdiction of the Convention in the context of United Kingdom troops in Iraq and Afghanistan, as well as for European peacekeepers worldwide?
Hazim, a twenty-three year old Iraqi citizen, was attending a funeral in his home town on August 4, 2003, when he was shot dead by a British soldier. Subsequently, his family received a letter of apology from the United Kingdom (U.K.) military forces, offering a small donation as compensation. In a similar incident, Raid, an Iraqi policeman taking a box of "suggestions and complaints" to a local judge, was shot dead by a British patrol. No letter of apology was offered to his family with regard to the tragic incident. (1)
There are many such stories, some recorded officially by the U.K. military stationed in Iraq and others recounted informally by foreign correspondents and human rights activists working in the war zones. The official stories are archived, while the unofficial stay in the minds of the families left behind to heal their wounds as best they can under the circumstances. However, are the circumstances such that they allow for no better alternative?
The family of Hazim Al-Skeini challenged the status quo and sought redress for the human rights abuses their son suffered under the U.K. military presence in their country. Their endeavor led to the first case ever brought by Iraqi citizens in a U.K. court against the U.K. government under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). (2) An appeal is currently pending in the U.K. court of last resort, the House of Lords.
This Note explores whether persons such as Hazim and Raid should have standing in European domestic courts and whether the Convention is applicable in such far-flung areas as Iraq and Afghanistan, which clearly do not fall within European boundaries, but where there is extensive European military or peacekeeping presence. Is the European Court of Human Rights (the Court) justified, on moral and/or procedural grounds, in extending jurisdiction of the Convention extraterritorially? How can a constructivist approach to interpretation of the Convention be reconciled with an activist argument for the moral need to uphold human rights in a manner appropriate for the 21st century?
Part II will examine the groundwork laid by the Court through case law on the interpretation of the Convention's jurisdiction, beginning with the Convention's jurisdiction within a nation's borders. The Court has interpreted strictly such territorial jurisdiction and has not allowed any signatory to be excused from upholding its obligations within its own territory, no matter the extent of the internal struggles for control. Second, the concept of "effective overall control" will be introduced, under which the Court has extended a state's responsibilities extraterritorially, but only within another signatory's territory over which the former exercises control. Third, the Note will review the concept of dual jurisdiction allowed by the Court, where both the signatory in effective overall control of the foreign territory and the signatory officially in control of such a territory are held jointly responsible under the Convention.
Under all of the above scenarios, the Court has faced no difficult dilemmas with regard to the Convention's jurisdiction, because at no time has it been confronted with the possibility of creating a vacuum of redress for human rights abuses. However, in a fourth group of cases, the Court has ventured into unknown territory and extended the Convention's jurisdiction extraterritorially beyond the espace juridique of the Convention's signatories, only to realize the sweeping consequences of its activism and curtail it by exacting the highest evidentiary burden for its applicability.
Consequently, the analysis of the current state of the case law illustrates the crossroads at which the Court has arrived, having extended the application of the Convention to territories outside of Europe, but allowing the extension in very few situations, none of which have yet presented themselves to the Court.
Part III will examine the methodology the Court has used in arriving at the correct interpretation of the jurisdiction of the Convention. It will be suggested that forcing a common law approach, complete with case law precedent and stare decisis, is an inapposite methodology to be applied to a civil law legal system. Instead, this Note will present an alternative approach, exploring the traveaux preparatoires of the Convention.
First, the legislative history of the Convention reveals a very narrow understanding of jurisdiction, limited to the post-World War II concerns of Europe in preserving the integrity and peace of its territory and the liberty of its citizens. Second, a particular debate on the so-called "colonial" clause, allowing for signatory reservations with regard to applicability of the Convention to overseas territories under colonial rule, will be considered in the context of the current situation in Iraq. Finally, this Note will argue that the Court cannot justify adopting an activist approach to pursue the admittedly noble cause of correcting a past democratic deficit. Instead, it will be suggested that the Court should leave it to the member state signatories, through the formal amendment process of the Convention, to define the jurisdiction of the Convention against the backdrop of the geopolitical realities of the 21st century.
II. SCOPE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Article 1 of the Convention provides that:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of [the] Convention. (3)
Accordingly, the signatories to the treaty are bound by the obligations laid out in the Convention. Such signatories are the state members of the Council of Europe. (4) Hence, the Convention's reach is limited to one type of legal personality (only states can be defendants in a case brought under the Convention), and to one geographical area, that covered by the Council of Europe.
The text of Article 1 of the Convention specifies the obligation to respect human rights taken on by the signatories. It requires member states to answer for any infringement of the rights and freedoms protected by the Convention committed against individuals within their "jurisdiction" at the time of the violation. (5) The corollary is that establishing state jurisdiction is a necessary precondition to holding a contracting state responsible under the Convention. It is important to note the two notions of jurisdiction and their interconnection within Article 1. On one hand, Article 1 sets the jurisdiction of the Convention, specifying when the provisions of the Convention are binding on member state signatories to the Convention. On the other hand, the separate jurisdiction of member states is itself implicated. The former is a derivative of the latter. In other words, the Convention is applicable to acts or omissions imputable to member states only when such acts or omissions are committed under the jurisdiction of member states. (6) Hence, in order to set the parameters of the jurisdiction of the Convention, the notion of state jurisdiction must be defined.
It is widely recognized that the words of an international treaty must be interpreted in light of the rules set out in the Vienna Convention on the Law of Treaties (Vienna Convention). (7) Pursuant to Article 31 of the Vienna Convention, "within their jurisdiction" must be given the ordinary meaning of the words in their context and in the light of the object and purpose of the Convention. (8) Jurisdiction has a well-established "ordinary meaning" in public international law. In general, exercise of jurisdiction involves the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that state or brought within that state's control. (9) Hence, in the context of public international law, a state's jurisdictional competence is primarily territorial, because it is on its own territory that a state generally has greatest control and authority. (10)
While public international law does not negate a state's exercise of jurisdiction extraterritorially, the suggested bases of such jurisdiction are believed to be limited. In certain well-established cases, jurisdiction is assumed on the basis of non-territorial factors such as: (i) acts of public authority performed abroad by diplomatic and consular representatives of the state (diplomatic and consular relations jurisdiction); (ii) the criminal activities of individuals overseas against the interest of the state or its nationals (passive personality jurisdiction); (iii) acts performed on board of vessels flying the state flag or on aircraft or spacecraft registered there (flag jurisdiction); and (iv) particularly serious international crimes (universal jurisdiction). (11) In addition to such established bases for extraterritorial jurisdiction of states, the Court has recently held states responsible for actions "within their control or power" that occurred outside of their territory under extraordinary circumstances and narrowly defined sets of specific facts. (12)
III. JURISDICTIONAL LIMITS OF STATE RESPONSIBILITY UNDER THE CONVENTION: CASE LAW
1. Territorial Jurisdiction
An April 2004 case establishes the background for a discussion of Article 1 of the Convention. In Assanidze v. Georgia the Court found that Georgia exercised jurisdiction over the Ajarian Autonomous Republic (AAR). (13) The AAR is a part of Georgia, and according to the Court Georgia's state acts or omissions in the AAR were subject to examination under the Convention.
The Court defined jurisdiction primarily as a territorial concept. (14) The Court held that Georgia continued to exercise jurisdiction over the AAR despite Georgian claims that because it did not exercise "effective overall control" in the region it should be relieved from obligations under the Convention with regard to the AAR. Following are several of the factors that the Court quoted as the basis for its decision:
(a) The AAR had no separatist aspirations and hence did not constitute a separatist region. (15)
(b) The AAR was indisputably an integral part of Georgia. (16)
(c) No other state exercised "effective overall control" over the AAR, (17) and the AAR itself was not a state as defined under Article 1 of the Montevideo Convention on the Rights and Duties of States (the Montevideo Convention). (18)
(d) Georgia had made no specific reservations under Article 57 of the Convention upon ratification with regard to the AAR or with regard to difficulties in exercising its jurisdiction over that territory. (19)
Assanidze stands for the notion that jurisdiction of the Convention is derivative of the primarily territorial concept of state jurisdiction. A state signatory cannot circumvent its obligations under the Convention with regard to areas within its territory where it has difficulties in exercising control. Instead, responsibilities under the Convention remain with the state irrespective of the level of domestic government to which the breach of the Convention is attributed. (20) Because the state is strictly liable under the Convention for the conduct of its subordinates, it is under a duty to impose its will and cannot hide behind its inability to ensure respect.
2. Two European State Signatories
This next category of cases involves two European states which are both signatories to the Convention and are in some way implicated in human rights abuses in a territory which is under disputed control by both parties.
(a) Loizidou v. Turkey
In Loizidou v. Turkey, decided in 2001, the Court found that Turkey exercised "effective overall control" over the Turkish Republic of Northern Cyprus (TRNC), a part of Cyprus. (21) The finding of such control established Turkey's extraterritorial jurisdiction over the TRNC. Consequently, the Court held Turkey responsible under the Convention for any violation of the protected rights and freedoms of anyone within its extraterritorial jurisdiction.
The Court did not define "effective overall control," however it listed several factors as the basis for its decision:
(a) Even though Cyprus was the sole legitimate government, it did not exercise "effective overall control" over the area of the TRNC. (22)
(b) Turkey exercised "effective overall control" over the TRNC as evidenced by the number of personnel stationed throughout the territory, the presence of Turkish patrol and checkpoints on main lines of communication, the existence of Turkish naval command and air force in the TRNC, and the fact that Northern Cypriots were subject to Turkish military courts. (23)
(c) The TRNC was not an integral part of Cyprus, and the TRNC itself was not a state as defined under Article 1 of the Montevideo Convention. (24)
(d) Cyprus was a signatory to the Convention, and Northern Cypriots were already given the benefit of the Convention's fundamental safeguards, i.e. the right to call a High Contracting Party to account for violations of their rights in proceedings before the Court. (25)
Hence, the Court held that because the overall and exclusive control over the TRNC was confirmed by irrefutable evidence of Turkey's power to dictate the course of events in its territory, Turkey had legal responsibility for the area in Convention terms. (26) Furthermore, the Court emphasized that any other finding would result in a regrettable vacuum in the system of human rights protection in the territory in question by removing the benefit of the Convention's fundamental safeguards that individuals in the territory had already been granted. (27)
Therefore, the Court in Loizidou developed the notion that where there is irrefutable evidence that a signatory to the Convention exercises effective overall control over a territory that is outside of its national boundaries (but within the boundaries of the Convention) and not under the effective overall control of the signatory within whose national boundaries such territory is situated, the former has legal responsibility under the Convention over such foreign territory.
(b) Ilascu v. Moldova
In July 2004, the Court in Ilascu v. Moldova found that Russia exercised "effective overall control" over the Moldovan Republic of Transdniestria (MRT), a part of Moldova. (28) The finding of such control established Russia's extraterritorial jurisdiction over the MRT. Consequently, the Court held Russia responsible under the Convention for any violation of the protected rights and freedoms within its extraterritorial jurisdiction in the MRT.
In addition, the Court recognized a positive obligation on behalf of Moldova towards persons within its territory over whom it did not exercise "effective overall control." (29) It required the state in question to endeavor, by all the legal and diplomatic means available to it vis-a-vis foreign states and international organizations, to continue to protect the enjoyment of the rights and freedoms guaranteed by the Convention. This latter part of the holding is a change from the previous case law established under Loizidou. There, the Court recognized that a state not in effective control of part of its territory, i.e. Cyprus, could not really exercise territorial jurisdiction over such territory. However, this development is consistent with the foundational concept set by Assanidze that jurisdiction under public international law remains primarily a territorial concept. Therefore, Ilascu represents a consistent development of the Court's case law.
The Court found Russia to have "effective overall control" over the MRT as established by the following factors:
(a) Even though Moldova was the sole legitimate government, it did not exercise "effective overall control" over the area of the MRT. (30)
(b) Moldova was a signatory to the Convention, and Transdniestrians were already given the benefit of the Convention's fundamental safeguards, i.e. the right to call a High Contracting Party to account for violations of their rights in proceedings before the Court. (31)
(c) The MRT itself was not a state as defined under Article 1 of the Montevideo Convention. (32)
(d) Russia exercised "effective overall control" over the MRT as evidenced by the military and political support Russia gave the MRT to set up a separatist regime, the participation of Russia's military personnel in the establishment of such a regime, as well as Russia's continued military, political and economic support enabling the MRT to survive by strengthening itself and by acquiring a certain amount of autonomy vis-a-vis Moldova. (33)
Hence, the Court held that because the effective overall control over the MRT was confirmed by irrefutable evidence of Russia's continued support for the separatist movement of the MRT, Russia had legal responsibility for the area in Convention terms. (34) Furthermore, the Court held that where a member state exercises overall control over an area outside its national territory, "its responsibility is not confined to the acts of its soldiers or officials in that area but also extends to acts of the local administration which survives there by virtue of the state party's military and other support." (35) This latter holding is an elaboration of the Assanidze concept that a state is strictly liable under the Convention for the conduct of its subordinates. However, such elaborations have increasingly significant practical implications, as will be discussed later.
Furthermore, unlike in Loizidou, the Court did not stop at examining all the objective facts capable of limiting the effective exercise of Moldova's authority over its territory. Instead, it went further to examine Moldova's own conduct. In doing so, Ilascu established the feasibility of the co-existence of dual jurisdiction under the Convention by requiring the member state with no effective overall control over part of its own territory to continue to have a positive obligation under the Convention. (36) The Court did not indicate which measures the authorities should take in order to comply with such an obligation most effectively, nor did it specify which measures were sufficient. However, the Court did hold that when faced with a partial or total failure to act, the Court's task is to verify the state's will expressed through specific facts and measures to re-establish control over its territory. (37)
Even though the Court did not list any factors which would amount to compliance with Moldova's positive obligation under the Convention, it nonetheless mentioned the following:
(a) Moldova had made a specific reservation under Article 57 of the Convention upon ratification with regard to the MRT and its difficulties in exercising jurisdiction over that territory (though such a reservation was found void by the Court because the case law precludes territorial exclusions). (38)
(b) Moldova should have refrained from supporting the separatist regime and should have acted by taking all political, judicial and other measures at its disposal to re-establish control over that territory. (39)
Therefore, the Court in Ilascu developed the concept of dual jurisdiction under the Convention. It concluded that where there is irrefutable evidence that a signatory to the Convention exercises effective overall control over a territory outside of its national boundaries and outside the effective overall control of another signatory within whose national boundaries such territory is situated, the former is responsible under the Convention by virtue of the extension of its jurisdiction extraterritorially, and the latter has positive obligations under the Convention.
Nagorno-Karabakh is a part of the Republic of Azerbaijan, and is territory contested by the Republic of Armenia. Both Azerbaijan and Armenia are members of the Council of Europe and signatories to the Convention. (40) A tumultuous conflict going back to at least before the dissolution of the U.S.S.R. raises the question of who is responsible for violations of human rights in the territory of Nagorno-Karabakh in light of the Court's interpretation of jurisdiction under the Convention. Based on the above-examined precedent, this part of the Note will attempt to apply the rules set by the case law on the issue of jurisdiction to the factual situation in Nagorno-Karabakh.
Both Armenia and Azerbaijan are signatories to the Convention, and therefore either, or both, could be held liable under the Convention for violations of the rights and freedoms protected by it.
Based on the specific facts pertinent to Nagorno-Karabakh, it is likely for the Court to find that Armenia is in effective overall control of Nagorno-Karabakh and thus responsible for the area in Convention terms. Applying the factors established in Loizidou and Ilascu:
(a) Even though Azerbaijan is the sole legitimate government, it does not exercise "effective overall control" over the area of Nagorno-Karabakh. (41)
(b) Azerbaijan is a signatory to the Convention, and the citizens of Nagorno-Karabakh have already been given the benefit of the Convention's fundamental safeguards, i.e. the right to call a High Contracting Party to account for violations of their rights in proceedings before the Court.
(c) Nagorno-Karabakh is not an integral part of Azerbaijan. (42)
(d) Nagorno-Karabakh itself is not a state as defined under Article 1 of the Montevideo Convention.
(e) Armenia exercises "effective overall control" over Nagorno-Karabakh as evidenced by the number of military personnel stationed throughout the territory, the presence of Armenian military bases in Nagorno-Karabakh, the military and political support Armenia gave Nagorno-Karabakh to set up a separatist regime, the participation of Armenia's military personnel in the establishment of such a regime, as well as Armenia's continued military, political and economic support enabling Nagorno-Karabakh to survive by strengthening itself and by acquiring a certain amount of autonomy vis-a-vis Azerbaijan. (43)
Furthermore, similarly to Ilascu, it is likely the Court will not stop at examining all the objective facts capable of limiting the effective exercise of Azerbaijan's authority over its territory. It will also further examine Azerbaijan's own conduct. In doing so, the Court is likely to entertain the possibility of the existence of dual jurisdiction under the Convention, as was the case in Ilascu, and impose positive obligations on Azerbaijan with regard to Nagorno-Karabakh.
Even though the Court did not list any factors in Ilascu that will amount to complying with Azerbaijan's positive obligation under the Convention, it is likely the following determination of the U.N. Commission on Human Rights will establish the state's intent to re-establish control over its territory and satisfy Azerbaijan's positive obligation under the Convention:
(a) Azerbaijan has no power and control over Nagorno-Karabakh, yet it had engaged in the past in mutual negotiations with the participation of foreign governments and international organizations, such as the OSCE and the Council of Europe, to restore its control over Nagorno-Karabakh. (44)
Consequently, applying the rules set by the case law on the issue of extraterritorial jurisdiction under the Convention to the factual situation in Nagorno-Karabakh, it is likely that the Court will find that Armenia is responsible for human rights abuses in the territory of Nagorno-Karabakh in Convention terms. Furthermore, the Court will find that Azerbaijan has positive obligations towards the area and its citizens, which it has already satisfied.
3. Two European States--One European Signatory
This category involves cases where two European counterparties are appearing before the Court, but only one of them is a signatory to the Convention. This is the first group of cases that initiated the debate with regard to the relevancy of the concept of espace juridique under the Convention and framed the issue of the human rights enforcement vacuum within its interpretation.
(a) Bankovic v. Belgium
Bankovic v. Belgium is a case decided by the Court in December 2001 where the Court found that the North Atlantic Treaty Organization (NATO) did not exercise "effective overall control" over the Federal Republic of Yugoslavia (FRY) during the NATO bombings of Belgrade in April 1999. (45) Hence, the Grand Chamber dismissed the case on inadmissibility grounds. (46)
The Court found that the notion of jurisdiction under Article 1 of the Convention was essentially territorial (a position which would be reiterated by the Court three years later in the Assanidze decision). (47) With respect to whether the bombardment of Belgrade constituted an exceptional basis of extraterritorial jurisdiction, the Court rejected the argument that NATO's control of the FRY's airspace was comparable to the control that Turkey had over the TRNC in the Loizidou case. Effectively, the Grand Chamber ruled that, in the absence of effective ground control of a territory, precision air strikes and control of airspace do not create responsibility under the Convention. (48)
Furthermore, the Court distinguished the Loizidou case from the Bankovic facts by emphasizing the regional limitation of the Convention and the fact that the FRY was not a signatory to the Convention, meaning its citizens were not deprived of any rights that they were previously granted. (49)
The Convention is a multi-lateral treaty operating ... in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States ... 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. (50)
Even though in Bankovic the Court uses the above-quoted arguments to distinguish the Loizidou and Bankovic cases, there is dictum in Loizidou that suggests that the Court is not making any new law. In Loizidou the Court held that it must have regard for the special character of the Convention as an instrument of European public order (ordre public) for the protection of individual human beings (emphasis added). (51) Hence, the Court is sending a consistent message that the Convention may not apply at all if the territorial locus at issue does not fall within the overall territory of the Council of Europe.
In other words, a particular action taken by one contracting state in the territory of another state would not be governed by the first state's Convention obligations if the second state is not also a party to the Convention. This would be a severe limitation as far as the Convention is concerned, since most of the world's states, including some of the key sites of extraterritorial action by Western European states--most notably the United Kingdom military presence in Iraq and Afghanistan--fall outside of the 'legal space' of the Convention. Under such an interpretation of extraterritorial jurisdiction, Iraqi citizens will have no remedy in U.K. courts for human rights grievances under the Convention.
In other words, the emphasis on the exceptional nature of extraterritorial jurisdiction in both Loizidou and Bankovic risks exacerbating a lacuna whereby multinational missions escape responsibility for disrespecting the human rights of those in whose countries they operate. This would effectively establish a double standard of human rights and transform the European Convention on Human Rights into a Convention on European Human Rights.
One could argue, however, that the dicta in both Loizidou and Bankovic is limited to a historical analysis of the Court's case law, and thereby does not by itself rule out the possibility of a different finding in future cases. At the same time, if the resolution of these issues in the future is to be found in the case law, the Court is effectively empowering itself to exert an unprecedented impact upon the current willingness of European states to contribute troops to multinational missions. In the following part this Note will argue that such empowerment is not legitimate and propose an alternative approach to the interpretation of jurisdiction. Before doing so, however, a few more illustrations of the Court's activist role in the expansion of the applicability of the Convention should be examined.
(b) United Nations Mission to Kosovo
The one issue that the Court in Bankovic did not reach was whether, if NATO were found to have effective overall control of the FRY, the NATO actions would be imputable to NATO member states. If the Court is persuaded that state parties to the Convention should not be able, with impunity, to send their officials abroad with orders which, if carried out, could amount to a violation of Convention provisions, the question of imputability and the piercing of the intergovernmental veil will be raised.
One potential case that could come in front of the Court in this regard is the current United Nations (U.N.) mission in Kosovo. The U.N. mission is comprised of both a security presence, the Kosovo Force (KFOR), which has substantial NATO participation, and a civilian component, the Interim Administration Mission in Kosovo (UNMIK). (52) KFOR is responsible for establishing a secure environment and ensuring public safety and order. UNMIK is responsible for providing an interim administration and is authorized to exercise all legislative and executive powers in Kosovo. Together, KFOR and UNMIK are the legitimate authority in Kosovo. It is arguable that the level of control exercised by KFOR and UNMIK is likely to satisfy the Court's criteria of effective control. (53)
However, international organizations such as NATO and the U.N. are not parties to the Convention, and in order to render their actions accountable under the Convention, the actions of these organizations must be imputed to their member states. It has been suggested that it is unlikely that member states of the U.N. who are also parties to the Convention will be responsible for the actions of their nationals within UNMIK, as individual member states do not exercise any degree of control. (54) By contrast, it has been argued that because KFOR's structure is comprised of national contingents, each responsible for specific areas under the overall command of the KFOR Commander, national governments retain a high degree of operational control over the tasks assigned and the location and manner in which their national forces are deployed. Hence, a national contingent may be seen as exercising effective control over an area in Kosovo, and, therefore, an individual state may be found to have responsibility under the Convention. (55)
If a case is ever brought before the Court in which the issue of imputability of international organizations' actions on member state signatories to the Convention is raised, the Court will face a difficult decision. On the one hand, if the Court recognizes the imputability concept, it would expand the jurisdiction of the Convention to every territory to which peacekeeping troops of European states are deployed, potentially producing a chilling effect on European peacekeeping worldwide. On the other hand, if the Court rejects the concept in favor of strict constructivism, it will safeguard the peacekeeping zeal of the Convention's signatories while keeping its eyes shut to the real risks posed to human rights by its signatories' peacekeeping missions outside of the espace juridique of the Convention. The latter part of this Note will argue for strict constructivism based on the commitment of the Court to uphold the Convention and its call for democratic process.
4. One European State Signatory
This category of cases involves one European state signatory to the Convention which is exercising effective overall control over an area outside of the espace juridique of the Convention. This is the group of cases that is of most interest and relevance to the debate of the Convention's jurisdiction. Whereas in the categories of cases discussed so far the Court does not find itself unable to assign responsibility under the Convention, under this category of cases the Court's decisions have the potential of creating a vacuum of redress for human rights abuses by failing to assign responsibility at all.
(a) Ocalan v. Turkey
Ocalan v. Turkey is a case decided by the Court in 2003 where the Court found that the actions of Turkish agents in relation to the alleged abduction of Abdullah Ocalan in Kenya--not a Convention state--took place within Turkish jurisdiction. (56) The Court held Turkey responsible for any violation of the protected rights and freedoms of Ocalan. (57)
The Court based its finding of jurisdiction on the fact that the control manifested in the traditional police-style arrest and detention of Ocalan amounted to effective overall control, and was therefore of the type necessary to trigger the Convention's obligations. (58) The Ocalan case thus stands for the very narrow, yet straightforward, ruling that a state party to the Convention has obligations to protect individuals from human rights abuses when making arrests abroad.
The implications of Ocalan as an activist decision of the Court can be easily imagined. Simply perusing the newspaper articles and press releases made by U.K. officials with regard to the war on terrorism, starting in Afghanistan in 2001 and later spreading to Iraq, one can develop a potential factual basis for actual police-style arrests conducted by U.K. forces abroad. (59) If such facts are proven, as well as evidence provided by arrestees of human rights violations against them, that would mean that the victims of such violations would have a remedy in U.K. courts against the U.K. government under the Convention. It takes no convoluted argument to realize that under Ocalan, the Court has taken a giant leap in extending the jurisdiction of the Convention.
(b) Issa v. Turkey
In November 2004, the court decided Issa v. Turkey, finding Turkey could have established Loizidou-like effective overall control of the particular portion of Northern Iraq at the relevant time. Accordingly, the Court could have found that Turkey exercised jurisdiction for the purposes of Article 1 of the Convention; however, it ruled that Issa failed to meet the evidentiary burden. (60) Hence, Turkey was not found responsible under the Convention.
Issa effectively parted with the law established by Bankovic and Loizidou by bringing the doctrine of effective control to territories otherwise outside of the espace juridique of the Convention. Some argue that in a sense Issa seems to look back to an earlier period of the jurisprudence which has subsequently made way for a more limited interpretation of Article 1 jurisdiction under the espace juridique debate. (61) However, despite the fact that the Court does not ascribe to any notion of stare decisis, Issa is a full judgment decision by the Chamber, and as the last-in-time decision is the relevant current law on the issue. (62)
Issa extends the potential areas covered by the Convention in dramatic ways, as was feared at the time Bankovic was debated. (63) However, simultaneously the Court set a higher evidentiary threshold to counterbalance the dramatic expansion of applicability of the Convention. In particular, the Court made it difficult to successfully establish when a nation exercises jurisdiction through its effective overall control while acting abroad, particularly in covert operations. (64)
In Issa the Court claimed that Issa failed to prove that Turkish troops conducted operations in the areas where the killings took place because no evidence was produced to rebut the government's assertion that there was no record of troops being in the area at the time. (65) The Court required detailed descriptions and independent testimony, which Issa failed to produce. (66) The Court defined this heightened burden of proof as one that "may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact," and used the common law terminology for such level of proof, namely "beyond a reasonable doubt." (67)
Consequently, Issa supports the argument the Court has repeatedly made that the Convention is a living instrument and that the original design of the Convention has given way to the notion that the Convention does apply to the action of member states outside the territory of the Council of Europe. (68) However, because such an evolution carries significant implications for the signatories to the Convention conducting military, police, or peacekeeping operations abroad (because they must uphold the Convention's obligations wherever they assert a sufficient degree of control), the Court in Issa curbed the Convention's reach by raising the evidentiary burden.
It is probable that the Court ruled in this way, "giving with one hand and taking with the other," in order to address the fears expressed in Bankovic. Since the decision in Bankovic, the jurisdictional debate with regard to overseas territories has resurfaced with full force, voicing the concern that by extending the reach of the Convention the Court will stiffen the willingness of states to contribute troops to multinational missions and thereby affect the political will of states and international organizations to undertake such missions.
Given that the Court is not bound by the common law notion of stare decisis, (69) it is possible that the potential stiffening effect of its decision will convince the Court to narrow further its approach to extraterritorial jurisdiction in future cases. However, this Note will argue that whether the Court expands or narrows its view on the Convention's jurisdiction, it should not embrace a common law methodology of analysis in its case decisions but should instead abide by the canons of construction in interpreting international treaties laid down by the Vienna Convention.
(c) Al-Skeini v. Secretary of State for Defence
Al-Skeini v. Secretary of State for Defence illustrates the urgency and relevancy of reaching a decision on the jurisdictional debate sooner rather than later. The case was decided by the English High Court (the English Court) in December 2004 and held that in the case of civilians killed in Iraq under U.K. custody, the Convention applies to U.K. forces (following Ocalan). (70) The English Court left open the question of whether "the U.K. has effective overall control of southeast Iraq," and thus whether "all civilian deaths at the hands of British forces post-occupation would have to be investigated by independent inquiries." (71)
Such a decision appears consistent with the case law developed by the European Court on Human Rights, despite widespread views that the English Court ignored the decision of Issa and instead revived the notion of espace juridique of the Bankovic and Loizidou decisions. (72) Even though the English Court does not quote in its decision Issa's requirement for a higher evidentiary burden for finding extraterritorial jurisdiction outside the territory of the Council of Europe, such is the likely ground for reconciling Al-Skeini with the current Court case law.
IV. JURISDICTIONAL LIMITS OF STATE RESPONSIBILITY UNDER THE CONVENTION: ALTERNATIVE METHODOLOGY OF ANALYSIS
Having examined the state of the case law and established the evolution of the Court's analysis, there is a need to step back and ask a much more fundamental question with regard to the interpretation of Article 1 of the Convention. Looking at the case law presupposes that the Court has the power to interpret and apply the meaning of Article 1, one possible alternative that assumes a common law approach to statutory analysis. An alternative approach is to look at the ordinary meaning of the words, with the legislative history of the Convention being used as a supplementary means of interpretation. That is what the Vienna Convention on the Law of Treaties directs. (73) Moreover, when considering a European treaty, it is important to note that forty-four of the forty-six signatories are states with civil law legal systems, (74) where case law interpretation of statutory texts is not the preferred method of analysis.
Therefore, this part of the Note will argue that the Court has been swayed in a number of cases towards a common law type of legal analysis, compelling notions of stare decisis and interpretation of the text of the Convention as a "living document." It will be argued that this approach of the Court is counter to its purpose and function, and without making any suggestion of conspiracy or common law imperialism, the Note will examine the path of analysis the Court should have followed instead, had the Court followed its role within the Council of Europe and its founding purpose. Furthermore, it will identify certain shortcomings in the democratic process in the very drafting of the Convention that might be seen as the reason for the current Court's activist role in the interpretation of the Convention. However, it will be argued that even if on moral or philosophical grounds the Court's actions might be justified, the Court's activism only exacerbates the earlier democratic deficit that should only be corrected by a formal amendment to the Convention.
As a first step, the legislative history of the Convention will be examined to illustrate the intention of the drafters that the Convention apply only to the physical territory of Europe. Second, it will be indicated that were it not for an administrative mishap, the Convention could have had a much more sweeping jurisdiction such that it covered European overseas colonies. The debate with regard to the exclusion of the "colonial" clause will then be analogized to today's debate on the applicability of the Convention to European peacekeepers worldwide. Third, the conclusion will be drawn that the Court cannot replace one democratic deficit by creating another, and instead should leave the extension of the jurisdiction of the Convention to the formal amendment process of the Convention. Finally, some general observations on the convergence of the common law approach of case analysis in the predominantly civil law framework of the Court will be made, followed by a discussion of some of the practical implications of the jurisdictional debate.
1. Legislative History of the Convention
Examination of the recent case law of the Court and its evolution is a method of analysis that presupposes a common law analytical framework. However, it is arguable that such a methodology should not be the benchmark. First, under the Vienna Convention, which sets the canons of construction in the area of statutory interpretation of international treaties, such documents should be interpreted using the ordinary meaning of the words. (75) Only in the case where such ordinary meaning is an unsatisfactory means of coming to a uniform interpretation are the travaux preparatoires of the document consulted. (76) Nowhere under the Vienna Convention is case law analysis and precedent an acceptable means of interpretation of an international treaty.
Even though the Court has repeatedly stressed that interpretations and meanings of terms in the human rights articles of the Convention are evolutionary or "dynamic," and hence must be understood and applied according to changing Europe-wide social and political values and attitudes, (77) the position is not uniform. Judge Bernhardt of the Court has famously stated that despite the fact that:
human rights treaties must be interpreted in an objective and dynamic manner, by taking into account social conditions and developments; [and] the ideas and conditions prevailing at the time when the treaties were drafted retain hardly any continuing validity, (78)
the Convention should not be seen as an evolving document. "Nevertheless, treaty interpretation must not amount to treaty revision. Interpretation must therefore respect the text of the treaty concerned." (79)
Therefore, the ordinary meaning of the words "within their jurisdiction" should be the starting point of analysis. As discussed earlier in this paper, jurisdiction is primarily a territorial concept, with very few enumerated exceptions. (80) To add some context to the use of the word "jurisdiction" in Article 1 of the Convention and to confirm the meaning resulting from the application of Article 31 of the Vienna Convention, it is useful to examine the legislative history. (81)
The original draft of Article 1 read that the Convention will "guarantee to all persons residing within the metropolitan territory of a member State...." (82) The text was later changed, with no debate, to state that the Convention will guarantee to all the people "residing within their territories" the rights and freedoms defined in Section I. (83) Eventually, the draft was rewritten further to read as the current version of Article 1. This final version was adopted after the above-mentioned changes were introduced by the Assembly's Legal Committee without much debate either in the Consultative Assembly or in the Committee of Ministers. (84) The explanation provided, however, illuminates the reason for such a lack of debate:
It seemed ... that the term "residing" might be considered too restrictive. It was felt that there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory States, even those who could not be considered as residing there in the legal sense of the word. This word, moreover, has not the same meaning in all national laws. The Committee therefore replaced the term "residing" by the words "within their jurisdiction," which are also contained in Art. 2 of the Draft Covenant of the UN Commission. (85)
Therefore, it appears the concern with the earlier version of the text was not with regard to extension of the jurisdiction of the Convention outside the territory of member states, but with regard to its application within their very boundaries. This is confirmed by the only question raised for clarification in connection with the preparation of the preliminary draft Convention: "[c] an petitions be made to the Commission by nationals of non-Member countries residing within the territory of one of the Member States but not falling into the category of stateless persons?" (86)
Furthermore, an analogy can be made with regard to a different debate by the drafters on the use of legal terminology. This debate concerned the use of the word "guarantee" in the preamble of the Convention. It was argued that the use of the word should be omitted in order to avoid creating a "false impression among the public that the object and effect of the Convention are to make member states of the European Community collectively responsible for the respect of human rights by each one of them severally." (87) Effectively, the drafters attempted to avoid using legal terminology in the language of the Convention in order to avoid confusing the public and creating false expectations of a much greater application and protection than was intended by the drafters.
Given that the Convention has as a concern the understanding of its provisions by those who are to benefit most from them, the use of the word "jurisdiction" instead of "territory" should not be seen as a way of expanding the application and protection of the Convention further than intended by the drafters, something the Court has done in its recent decisions. Hence, by analogy to the debate on the avoidance of legal terminology with regard to the word "guarantee," "jurisdiction" should be interpreted as a territorial concept alone.
The territorial concept of "jurisdiction" can be supported further by the much broader discussion in the Consultative Assembly at the beginning of the debate on whether human rights should be placed on the European agenda. Initially, there was a great resistance for such inclusion, mainly stemming from the fact that the U.N. was already working on the Universal Declaration of Human Rights, and therefore European efforts in the subject area were seen as duplicative. (88) However, the argument prevailed, after extensive debate, that the draft of a European Convention would be beneficial to everyone in Europe "based as it is on the same culture, and where the political traditions follow the same main lines." (89) It was repeatedly stated that Europe had the advantage in reaching an agreement with practical and concrete implications on human rights, especially in the fields where the work of the U.N. would often, "in the nature of the case, be particularly difficult because regard must be had to the five continents of the world, which have different judicial systems, religions, cultures and social standards." (90) This emphasis on the common cultural and political heritage which made the Council of Europe the truly competent body for the conclusion of a pact for the protection of those values which had their birth in Europe eventually found its way into the preamble of the Convention. (91)
The common heritage exalted by the members of the Consultative Assembly was also strongly associated with an achieved political stage of democracy. During the extensive preliminary debates, it was argued that the Convention's very purpose was to determine the limits of free Europe after World War II. Free European member states were further defined as those which ascribed to democracy, and that certain countries, like those of Eastern Europe lost to Communism, would be "able to rejoin [Western Europe], when they have freed themselves from their bonds." (92)
Thus, the purpose of the Convention was to protect members which might be threatened "by a rebirth of totalitarianism from succumbing to the influence of evil," as had happened with the advent of World War II. It was not intended to be used in the process of building a democratic society where one had not previously existed. This latter point brings us to the next argument surrounding the debate of the inclusion of the "colonial clause" in the Convention.
2. The Jurisdiction of the Convention under the Colonial Clause
Article 63 of the Convention, the so called "colonial clause," enables member states to discriminate between territories under their jurisdiction, or, more precisely, to exclude one or several of their territories from the Convention. (93) The exclusion of Article 63 from the Convention was debated heatedly in the Consultative Assembly, where the French delegation stood in stern opposition to the British supporters of the inclusion of the article. Mr. Senghor, from the French Delegation, gave a passionate speech citing legal and moral grounds for the exclusion of the article and so avoiding transforming the European Convention on Human Rights into a Convention on European Human Rights. (94) Mr. Senghor was greatly concerned with betraying the spirit of the European civilization and repeating in Africa events that occurred in Korea, Malaysia or Indo-China. (95)
Sir David Maxwell-Fyfe of the U.K., on the other hand, was much less passionate and much more pragmatic in his debate:
A flat application--without any divergences allowing for the different stages of development of colonial territories--of the Convention would cause difficulty in many places and would impede the advancement and improvement of colonial administration. (96)
Sir Maxwell-Fyfe was much more preoccupied with jeopardizing the ratification of the Convention by pressing matters that might seem superficially attractive but that might cause great difficulty to those whose life work was the improvement of the position of the peoples in the colonies, rather than with the establishing of a double standard of humanity.
Eventually, the exclusion of Article 63 was put to a vote in the Consultative Assembly, and the amendment to delete the colonial clause was carried by a 46 to 37 vote. (97) Hence, the moral position of the French prevailed by popular demand.
Today's debate with regard to extending the jurisdiction of the Convention to the territories under European effective overall or peacekeeping control, such as Iraq and Afghanistan, can be analogized to the debate on the colonial clause. Similar to the French position in 1950, Europe should be concerned with transforming the European Convention on Human Rights into a Convention on European Human Rights and creating a second class of humans.
Consistent with its past position, however, the U.K. continues to take a more pragmatic approach to its overseas military presence and peacekeeping. The argument put forward by the current U.K. administration is similar to that advocated by some with regard to environmental regulation in the developing world. It suggests that standards of human rights should be relaxed in order to allow third world countries to catch up in terms of development. Such relaxation should be acceptable to the developed, civilized countries of Europe because past human rights abuses were indispensable in Europe's own path towards development.
3. The Role of the Court in Filling in the Democratic Deficit
However, if the French have indeed prevailed on the colonial clause, why is the analogous debate resurfacing today? It appears from the travaux preparatoires that the vote of the Consultative Assembly on deleting Article 63 from the Convention was not honored by the Committee of Legal Experts, the latter being responsible for the final draft of the Convention. (98) Consequently, the exclusion of Article 63 was never considered by the Committee of Ministers at the final vote on the draft Convention, leaving Article 63 intact in the text of the Convention.
From today's perspective and under the pressing reality of the current debate on the applicability of the Convention to the U.K. military presence in Iraq and Afghanistan, the administrative mishap that occurred more than fifty years ago is more relevant than ever. However, if at the end, despite the majority support for the expansion of the jurisdiction of the Convention to the European colonies overseas, the Convention was signed and ratified by member states precluding such automatic expansion, can the Court correct the Convention through statutory interpretation? This Note argues it cannot.
The Committee of Ministers adopted the final draft of the Convention without taking into account several of the recommendations and votes of the Consultative Assembly, particularly with regard to the right to property and the right to education. (99) Such lack of consideration on behalf of the executive body of the Council of Europe was criticized vehemently by members of the Consultative Assembly. (100) However, the Convention still went through the ratification process by the individual member states of the Council of Europe. Eventually, the lack of democratic process in the adoption of the Convention was corrected in the way called for by the principles of democracy, via formal amendments. A subsequent protocol was signed and rarified by member states to include the right to property and education in the original Convention. (101)
Consequently, the Court should not take the opportunity to further the lack of democratic process evident in the adoption of Article 63 by expanding the jurisdiction of the Convention outside the territory of the Council of Europe through activist case law analysis. If the member states decide they vehemently oppose the way their will was ignored in the original adoption of the Convention, they can use the formal amendment process included in the Convention and exercised five times since its entry into force. (102)
V. PRACTICAL IMPLICATIONS
1. If the U.K. is an occupying force in Iraq, does its responsibility under the Convention extend to the acts of U.K. forces in Iraq? To Iraqi officials acting under U.K. control?
Under current case law developed by the Court in Ocalan and reiterated in Issa, it appears that the U.K. could be responsible under the Convention for violations of the human rights of civilians under U.K. custody in Iraq. However, in order for plaintiffs to hold U.K. troops responsible for their acts outside of the custodial environment, plaintiffs must prove their case beyond a reasonable doubt. Once such an evidentiary burden is met, plaintiffs could possibly further claim that the U.K. is also responsible for the acts of Iraqi officials under U.K. control, as long as plaintiffs could establish an agency relationship between the U.K. and the Iraqi officials. This latter argument has never been brought before the Court and hence the current case law does not establish the evidentiary burden for establishing such a relationship. However, it is probable that if the Court allows the imputation based on the agency relationship, it will again set a relatively high evidentiary burden so as to counterbalance the drastic expansion of the extraterritorial jurisdiction found under the Convention.
Based on the alternative approach of legal analysis argued in this paper, however, the Court should not only curtail the current applicability of the Convention extraterritorially and reverse its prior position stated in Ocalan and Issa, but it should also adopt neutrality with regard to the political debate on the issue. As stated earlier, the Court should not adopt a common law approach as its principal methodology in interpreting the Convention. Instead, it should follow its purpose of creation and prescribed functions under the Council of Europe. Hence, the Court should leave it to the democtratic process and the willingness of member states to pursue a resolution of the jurisdictional debate by introducing a specific amendment to the Convention.
2. What is the cost-benefit analysis of the cost of the U.K. having to investigate human rights abuses of its troops sent abroad, weighed against the benefit of having the U.K. participate in peacekeeping operations? How does the Court conduct such an analysis, and should it at all?
As a state signatory to numerous international conventions and treaties, and as a central participant in a number of high profile multinational organizations such as NATO and the U.N., the U.K. cannot escape having to perform a cost-benefit analysis of its commitment to upholding human rights, to put it crudely. If the current case law stands as the applicable law, the U.K. will have to evaluate the cost of following through on its commitment under the Convention to investigate human rights abuses committed by its troops anywhere in the world the U.K. has established effective overall control. Simultaneously, the U.K. will have to estimate the benefit it receives from being an active and abiding member of the European community to which it belongs. Such a cost-benefit analysis will translate any legal advantages or disadvantages into political capital or lack thereof, which in itself precludes a definitive outcome based on purely legal justifications for the existence and applicability of extraterritorial jurisdiction under the Convention, which this Note strives to provide.
In addition, the Court likely conducts a similar cost-benefit analysis, albeit unconsciously or behind closed doors, not only on behalf of the states who appear as defendants before it, but also with regard to its own legitimacy and binding powers. On the one hand, if the Court follows a strict constructivist approach to the Convention, it is likely to close its eyes to significant human rights abuses taking place under the auspices of its state signatories outside the territory of the Council of Europe. On the other hand, by extending its jurisdiction outside of the espace juridique of the Convention, the Court's decisions are likely to backfire in that they create a disincentive for member states to participate in peacekeeping missions worldwide; thus failing to carry out the mission of the Convention of securing the universal and effective recognition and observance of human rights. Once again, it is not unlikely that the analysis of the Court is political, which could be evidenced by the Court's seemingly erratic tipping of the scales from one side in Bankovic to the opposite side in Ocalan, and again in Issa.
In order to escape the unavoidable politically-slanted cost-benefit analysis in the Court's conscious or subconscious decision making, it is better for the Court to leave politics to politicians. One way the Court can achieve this without appearing to avoid the issue altogether or create an impasse in the development of human rights law is to actively encourage member states to take a position on the issue and act democratically in implementing it. The Court should by no means shun controversial cases to avoid the politicized debate and thus create a further vacuum in the enforcement of human rights norms. Instead, as a judicial body intended to safeguard the protections provided by the Convention, it should encourage democtratic clarification of the jurisdictional issue.
Under the alternative analysis argued in this Note, Hazim, Raid and their Iraqi brothers who have suffered similar fates should not be granted standing in front of U.K. domestic courts under the Human Rights Act of 1998, incorporating the European Convention for the Protection of Human Rights and Fundamental Freedoms under British law. Their families should not be allowed a day in court and should be left to deal with their plight without the possibility of seeking justice through the European legal system. Such an outcome is hardly the moralistic happy ending expected and sought by international instruments like the Convention. However, no matter how difficult to accept the recommendations and practical implications, they represent a consistent application of a methodology of analysis suited for the facts presently under consideration.
The European Court of Human Rights should not replace one democratic deficit by creating another. Instead of being lured into the politicized cost-benefit analytical debate on the jurisdiction of the Convention, it should respect the democratic process. The Court should leave it up to the formal amendment process of the Convention to give "under its jurisdiction" proper meaning. By actively encouraging governments to engage in the debate on whether the Convention's terms should apply to cases such as those of Hamid and Raid, the Court is better suited in serving its function as the European protector of human rights, including democratic participation, instead of becoming a player in establishing European human rights.
(1.) Public Interest Lawyers, Iraq--Human Rights, http://www.publicinterestlawyers.co.uk/ iraq_litigation.htm (last visited Mar. 8, 2006).
(2.) The European Convention for the Protection of Human Rights and Fundamental Freedoms was adopted by Parliament as part of the Human Rights Act of 1998. Human Rights Act, 1998, c. 42.
(3.) Convention for the Protection of Human Rights and Fundamental Freedoms art. 1, Nov. 4, 1950, 213 U.N.T.S 222 [hereinafter European Convention].
(4.) Id. at pmbl. As of Dec. 3, 2005, 46 countries have signed and ratified the Convention: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia & Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxemburg, Macedonia, Malta, Moldova, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia & Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom. See Council of Europe, The Council of Europe's Member States, http://www.coe.int/T/e/ Com/about_coe/member_states/default.asp (last visited Mar. 20, 2006).
(5.) Ilascu v. Moldova, App. No. 48787/99, 40 Eur. Ct. H.R. 46, [section] 311 (2004), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en(search Ilascu v. Moldova).
(6.) "The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention." Id.
(7.) Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.
(8.) Id. art. 31.
(9.) See, e.g., BERNHARDT, 3 ENCYCLOPEDIA OF PUB. INT'L L. 55-60 (1992); IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 288, 301, 312-14 (1998); PIERRE-MARIE DUPUY, DROIT INTERNATIONAL PUBLIC 61 (4th ed. 1998); F.A. Mann, The Doctrine of Jurisdiction in International Law, in 1 RECUEIL DES COURS 9 (1964); and F.A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, in 3 RECUEIL DES COURS 19 (1984).
(10.) Bankovic v. Belgium, 2001-XII Eur. Ct. H.R. 333, [paragraph] 60 ("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.").
(11.) See Wade Estey, Note, The Five Bases of Extraterritorial Jurisdiction and the Failure of the Presumption Against Extraterritoriality, 21 HASTINGS INT'L & COMP. L. REV. 177 (1997).
(12.) E.g., Loizidou v. Turkey, App. No. 15318/89, 23 Eur. H.R. Rep. 513 (1996) (holding that the responsibility of member states was capable of being engaged when as a consequence of military action (lawful or unlawful) it exercised "effective control" of an area outside its national territory); Drozd and Janousek v. France and Spain, App. No. 12747/87, 14 Eur. H.R. Rep. 445 (1992) (holding that the responsibility of member states could, in principle, be engaged because of acts of their authorities which produced effects or were performed outside their own territory); Soering v. United Kingdom, App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989) (holding that the U.K. was responsible under the Convention for a breach of Article 3 that would likely occur outside of its jurisdiction upon extradition by the U.K. of the applicant).
(13.) Assanidze v. Georgia, App. No. 71503/01, 39 Eur. H.R. Rep. 32 (2004).
(14.) Id. [paragraph] 137; Bankovic, 2001-XII Eur. Ct. H.R. at [paragraphs] 59-61.
(15.) Assanidze, 39 Eur. H.R. Rep. [paragraph] 140.
(16.) Id. [paragraph] 139.
(17.) Id. [paragraph] 140.
(18.) "The State as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other States." Montevideo Convention on the Rights and Duties of States art. 1, Dec. 26, 1933, 49 Stat. 3097, T.S. 881 [hereinafter Montevideo Convention].
(19.) Assanidze, 39 Eur. H.R. Rep. [paragraph] 140. Note: had such reservations been made, they would have been void because case law precludes territorial exclusions. See Matthews v. United Kingdom, (28) Eur. H.R. Rep. 361, [paragraph] 29 (1999).
(20.) In principle, a state's responsibility is engaged by conduct incompatible with its international obligations, irrespective of the level of administration or government at which the conduct occurs. Assanidze, 39 Eur. H.R. Rep. [paragraph] 141; see also LaGrand Case (F.R.G. v. U.S.), 1999 I.C.J. 9 (Order of Mar. 3); Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, 1999 I.C.J. 62, 87 (Apr. 29) ("According to a well-established rule of international law, the conduct of any organ of a State must be regarded as an act of the State.").
(21.) See Loizidou, 23 Eur. H.R. Rep. 513.
(22.) Id. [paragraph] 149.
(23.) Id. [paragraph] 56.
(24.) Id. [paragraphs] 44, 56.
(25.) Id. [paragraph] 3.
(26.) The Court stated in relevant part:
Bearing in mind the object and purposes 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 be exercised directly, through its armed forces, or through a subordinate local administration. It is not necessary to establish whether Turkey actually exercises detailed control over the policies and actions of the authorities of Northern Cyprus.
Loizidou, 23 Eur. H.R. Rep. 513, [paragraph] 2(c-d).
(27.) Id. [paragraph] 3.
(28.) Ilascu, 40 Eur. Ct. H.R. 46, [paragraph] 392.
(29.) Id. [paragraph] 331.
(30.) Id. [paragraph] 330.
(31.) Id. [paragraph] 343.
(32.) "To date, the 'MRT' has not been recognized by the international community." Id. [paragraph] 30. See also Montevideo Convention, supra note 18.
(33.) Ilascu, 40 Eur. Ct. H.R. 46, [paragraph] 392.
(34.) Id. [paragraph] 394.
(35.) Id. [paragraph] 316.
The Court considers that where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation, such as obtains when a separatist regime is set up, whether or not this is accompanied by military occupation by another State, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another State.... [S]uch a factual situation reduces the scope of that jurisdiction in that the undertaking given by the State under Article 1 must be considered by the Court only in the light of the Contracting State's positive obligations towards persons within its territory. The State in question must endeavour, with all the legal and diplomatic means available to it vis-a-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention.
Id. [paragraph] 333.
(37.) Id. [paragraph] 334.
(38.) Id. [paragraph] 327. See Matthews, 28 Eur. Ct. H.R. 361, [paragraph] 29.
(39.) Ilascu, 40 Eur. Ct. H.R. 46, [paragraph] 392.
(40.) Both Azerbaijan and Armenia joined the Council of Europe on January 21, 2001 and ratified the Convention on April 15, 2002, and April 26, 2002, respectively. See The Council of Europe's Member States, supra note 4.
(41.) At present Armenian military forces occupy and control up to twenty per cent of the territory of Azerbaijan, including Nagorno-Karabakh and six adjacent Azeri administrative regions, with about 800,000 people having been forcibly displaced there from. U.N. Comm'n on Human Rights, Report of the Representative of the Secretary-General Mr. Francis M. Deng, Profiles in Displacement: Azerbaijan, U.N. Doc. E/CN.4/1999/79/Add.1 (Jan. 25, 1999) [hereinafter U.N. Comm'n on Human Rights].
(42.) Upon depositing the instrument of ratification on April 15, 2002, Azerbaijan declared that it is unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia until those territories are liberated from that occupation. Council of Europe Treaty Office, http://conventions.coe.int/Default.asp (follow "Reservations and Declarations" hyperlink; then follow "For a given Treaty" hyperlink; enter "005" as the CETS number and select "Azerbaijan" as the state; then click "Submit') (last visited Mar. 3, 2006).
(43.) U.N. Comm'n on Human Rights, supra note 41.
(44.) Id. [paragraphs] 20-23.
(45.) Bankovic, 2001-XII Eur. Ct. H.R. 333.
(46.) Id. [paragraph] 85.
(47.) Id. [paragraph] 59.
(48.) Bankovic argued that given the size of the air operations, NATO's control over the airspace was "nearly as complete as Turkey's control over the territory of northern Cyprus." Id. [paragraph] 52. Furthermore, the argument goes,
the concepts of 'effective control' and 'jurisdiction' must be flexible enough to take account of the availability and use of modern precision weapons which allow extraterritorial action of great accuracy and impact without the need for ground troops. Given such modern advances, reliance on the difference between air and ground attacks has become unrealistic.
(49.) Id. [paragraph] 80.
(51.) Loizidou, 23 Eur. H.R. Rep. 513, [paragraph] 78.
(52.) John Cerone, Outlining KFOR Accountability in Post-Conflict Kosovo, ASIL INSIGHTS, Oct. 2000, available at http://www.asil.org/insights/insigh54.htm.
(53.) The latter will depend on the factual circumstances of a case established by the Court, if such a case is ever brought under the Convention.
(54.) Cerone, supra note 52.
(56.) Ocalan v. Turkey, App. No. 46221/99, 37 Eur. H.R. Rep. 238 (2003).
(57.) Id.[paragraph] 93.
(58.) Id. [paragraph] 91.
(59.) Public Interest Lawyers, supra note 1.
(60.) Issa v. Turkey, App. No. 31821/96, 41 Eur. H.R. Rep. 567 (2004).
(61.) Nuala Mole, Issa v Turkey: Delineating the Extra Territorial Effect of the European Convention of Human Rights, EUR. HUM. RTS. L. REV. 2005, 1, 86-91.
(62.) See generally Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in Common Law Nation, 65 LA. L. REV. 775 (2005).
(63.) See Tarik Abdel-Monem, The Long Arm of the European Convention on Human Rights and the Recent Development of Issa v. Turkey, 12 HUM. RTS. BRIEF 9 (2005); Michael O'Boyle, The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on 'Life After Bankovic', in EXTRATERRITORIAL APPLICATION OF HUMAN RIGHTS TREATIES 125 (Fons Coomans & Menno T. Kamminga eds., 2004) (opining that few inadmissibility decisions have given rise to such adverse comment and controversy as the Bankovic case).
The Court does not exclude the possibility that, 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 of 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 of the Contracting States).
Issa, 41 Eur. H.R. Rep. 567, [paragraph] 74.
(65.) Id. [paragraphs] 76-79.
(68.) Ralph Wilde, The "Legal Space" or "Espace Juridique" of the European Convention on Human Rights: Is It Relevant to Extraterritorial State Action, EUR. HUM. RTS. L. REV. 2005, 2, 115-124.
(69.) See generally Algero, supra note 62.
(70.) Al-Skeini v. Secretary of State for Defence  EWHC (Admin) 2911, 2005 2 W.L.R. 1401 (EWHC).
(71.) UK Must Investigate Iraqi Civilian's Death, GUARDIAN, Dec. 14, 2004, available at http:// www.guardian.co.uk/Iraq/Story/0,2763,1373400,00.html.
(72.) Wilde, supra note 68, at 121.
(73.) Vienna Convention on the Law of Treaties, supra note 7. The only other articles besides Article 31 stating the General Rule of Interpretation which pertains to the issue of treaty interpretation is Article 32 on the Supplementary Means of Interpretation, which reads as follows:
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Id. art. 32.
(74.) Cyprus has a mixed civil law/common law system, and the United Kingdom has a common law system.
(75.) Vienna Convention on the Law of Treaties, supra note 7, art. 31.
(76.) Id. art. 32.
(77.) As expressed in the Tyrer case, the Convention is to be regarded as a "living instrument ... which must be interpreted in the light of present-day conditions." Tyrer v. United Kingdom 2 Eur. Ct. H.R. (ser. A) [paragraph] 31 (1978).
(78.) Judge R. Bernhardt, Thoughts on the Interpretation of Human-Rights Treaties, in F. MATSCHER & H. PETZOLD, PROTECTING HUMAN RIGHTS: THE EUROPEAN DIMENSION 70-71 (Koln, 1988), quoted in FRANCIS G. JACOBS & ROBIN C. A. WHITE, THE EUROPEAN CONVENTION ON HUMAN RIGHTS 38 (Oxford University Press, 2d ed., 1996).
(80.) J. E. S. FAWCETT, THE APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 21 (2d ed. 1987) ("It is believed that the jurisdiction of a contracting state is ... the area or objects of its jurisdiction, as defined by its domestic law within the limits prescribed by international law, and by any declaration made by it under provisions of the Convention.").
(81.) Vienna Convention on the Law of Treaties, supra note 7, art. 32.
(82.) First Session of the Consultative Assembly, Sitting of Aug. 27, 1949, Doc. No. 107, reprinted in COUNCIL OF EUROPE, 1 COLLECTED EDITION OF THE "TRAVAUX PREPARATOIRES" OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 166 (Martinus Nijhoff Publishers 1975) (emphasis added) [hereinafter First Session of the Consultative Assembly].
(83.) Id. at 206.
(84.) Meeting of the Committee of Experts Held in Strasbourg from 2 to 8 February 1950 and 6 to March 1950, reprinted in COUNCIL OF EUROPE, 4 COLLECTED EDITION OF THE "TRAVAUX PREPARATOIRES" OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 20 (Martinus Nijhoff Publishers 1977).
(85.) Id at 20-22.
(86.) Working Papers Prepared by the Secretariat General for the Committee of Experts (undated), reprinted in COUNCIL OF EUROPE, 3 COLLECTED EDITION OF THE "TRAVAUX PREPARATOIRES" OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 32 (Martinus Nijhoff Publishers 1976) [hereinafter Working Papers].
(87.) First Session of the Consultative Assembly, supra note 82, at 240. Consequently, the Assembly was unconvinced by this reasoning and agreed that the term "guarantee" appeared in the preamble. It was argued that the word did not have the same meaning in public as in private law because in public law there were only regulated and legal conditions (and no debtors or creditors) safeguarded by the very operation of the public authorities and by the spontaneous activation of the machinery of the State. Working Papers, supra note 86, at 6.
(88.) First Session of the Committee of Ministers Held at Strasbourg 8th to 13th August 1949, reprinted in COUNCIL OF EUROPE, 1 COLLECTED EDITION OF THE "TRAVAUX PREPARATOIRES" OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 24 (Martinus Nijhoff Publishers 1975).
(89.) First Session of the Consultative Assembly Held at Strasbourg 10th August to 8th September 1949, reprinted in COUNCEL or EUROPE, 1 COLLECTED EDITION OF THE "TRAVAUX PREPARATOIRES" OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 50 (Martinus Nijhoff Publishers 1975).
Here, above all, lie the greatest difficulties, particularly in relation to a question like human rights and their protection by a court of law. It has rightly been said that on a world scale the negotiations of at a effectively enforceable agreement on human rights between nations, with such widely differing political institutions and social standards, raise difficulties which in the present state of international relationships may prove well-nigh insurmountable. Here, ... the Council of Europe would have the very best conditions for much more easily and quickly achieving definite, concrete and better results than the United Nations, as regards the content of the Charter itself and the protection of human rights.
Id. at 52.
(91.) European Convention, supra note 2, at pmbl. The Preamble of the Convention reads in pertinent part as follows:
Being resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.
(92.) First Session of the Consultative Assembly, supra note 82, at 136.
(93.) European Convention, supra note 2, art. 63. Article 63 reads in pertinent part as follows:
(1) Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary-General of the Council of Europe that the present Convention shall extend to all or any of the territories for whose international relations it is responsible
(3) The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.
(94.) Second Session of the Consultative Assembly, Sitting of Aug. 25, 1950, reprinted in COUNCIL OF EUROPE, 6 COLLECTED EDITION OF THE "TRAVAUX PREPARATOIRES" OF EUROPEAN CONVENTION ON HUMAN RIGHTS 172-74 (Mardnus Nijhoff Publishers 1985).
(95.) Id. at 176.
(96.) Id. at 178.
(97.) Explanatory Note by the Secretariat-General, Sept. 9, 1950, reprinted in 6 COLLECTED EDITION OF THE "TRAVAUX PREPARATOIRES," supra note 94, at 236.
(98.) Note of Mr. Robertson on the Meeting of the Committee of Legal Experts at the Sixth Session of the Committee of Ministers, Nov. 14, 1950, reprinted in 7 COLLECTED EDITION OF THE "TRAVAUX PREPARATOIRES" OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 20-22 (Martinus Nijhoff Publishers 1985).
(99.) See Reports of the Second Session of the Consultative Assembly, Sitting of Nov. 18, 1950, reprinted in 7 COLLECTED EDITION OF THE "TRAVAUX PREPARATOIRES," OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 90.
The fact is that those democratic principles, of which the Committee of Ministers is fond of proclaiming itself a passionate defender, demand at the very least, it would seem, that when the Representatives of all the Parliaments of every country have given their opinion, and when the executive body has had ample opportunity to consult with its experts beforehand, the will of these parliamentary delegations, unanimously expressed, ought to be followed and respected within the Committee of Ministers by every Minister belonging to these same States.
Id. at 114.
(101.) Protocol on the Enforcement of Certain Rights and Freedoms Not Included in Section I of the Convention. European Convention, supra note 2.
Stefka Kavaldjieva, J.D. candidate, Global Law Scholar, and Institute of International Economic Law Fellow, Georgetown University Law Center, 2006; B.S.F.S., Georgetown University. [c] 2006, Stefka Kavaldjieva. The author would like to thank Kevin Kitching at Interights for his guidance in researching the case law of the European Court of Human Rights; Professor Charles F. Abernathy at Georgetown University Law Center for stimulating her awareness of her own internal biases of common law study and civil law background; and all of the GEORGETOWN JOURNAL OF INTERNATIONAL LAW editors for their assistance. The author apologizes for any facts which may become outdated by the time of publication, as the case law of the European Court of Human Rights continues to evolve.…