(Oxford Monographs in International Law) Marko Milanovic - Extraterritorial Application of Human Rights Treaties - Law, Principles, and Policy-Oxford University Press (2011)

OXFORD MONOGRAPHS IN
INTERNATIONAL LAW
General Editors:
PROFESSOR VAUGHAN LOWE QC
Chichele Professor of Public International Law in
the University of Oxford and Fellow of All Souls College, Oxford
PROFESSOR DAN SAROOSHI
Professor of Public International Law,
The Queen’s College, Oxford
PROFESSOR STEFAN TALMON
Professor of Public International Law,
St. Anne’s College, Oxford
Extraterritorial Application
of Human Rights Treaties
Law, Principles, and Policy
OXFORD MONOGRAPHS IN
INTERNATIONAL LAW
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Agnès Hurwitz
Jurisdiction in International Law
Cedric Ryngaert
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Alexander Orakhelashvili
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Nils Melzer
Extraterritorial
Application of Human
Rights Treaties
Law, Principles, and Policy
MARKO MILANOVIC
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General Editors’ Preface
The actions of States are not confined to their territory, but frequently affect the
lives of individuals beyond their borders. In some cases these actions involve
killings, torture or indefinite detention, and this raises the question of the extrater-
ritorial application of a States’s human rights obligations. Many human rights
treaties, notably the European Convention of Human Rights, limit the scope of
their application to everyone within the ‘jurisdiction’ of the Contracting Party
concerned. There is considerable uncertainty as to what the term ‘jurisdiction’
means in this context. Depending on the standard applied, the ensuing human
rights protection might be over-inclusive, and thus unrealistically burdensome for
States to comply with, or too limited to secure adequate international human rights
protection.
Dr Milanovic’s important and original study explores the issue of ‘jurisdiction’
with clarity and vigour, both within the field of human rights treaties and within
the wider framework of general international law. It is the quality of this analysis
which merits careful consideration of Dr Milanovic’s proposed way forward in this
sensitive and difficult area of the law.
AVL, DS, ST
Oxford, April 2011
This page intentionally left blank
Preface
This book is an expanded version of the doctoral thesis that I defended at the
University of Cambridge in 2010. I am most grateful to David Feldman for his
guidance and input in the course of the preparation of the thesis; I could not have
wished for a better supervisor. I say this not (just) with the utter relief of someone
who is finally over and done with his PhD, or as an obligatory platitude in a post-
PhD monograph. He was truly the Goldilocks supervisor, neither forcing me
heavy-handedly into whatever direction he thought best, nor letting me drift
through the PhD all on my own; he was just right, and his future students are
lucky to have him.
I also wish to express my thanks to my two examiners, James Crawford and
Colin Warbrick. Their great knowledge and good humour made my viva not
only challenging and intellectually stimulating, but genuinely fun. Few are so
lucky, and for that, again, I am thankful, as I am thankful for their comments.
I am likewise indebted to Dapo Akande, Ken Anderson, Charles Garraway,
Vidan Hadzi-Vidanovic, Rebecca Jenkin, Francesco Messineo, Tatjana Papic,
Jelena Pejic, Bruno Simma, Sandesh Sivakumaran, and Tobias Thienel who
were gracious enough with their time to read all or parts of this study and
provide me with most helpful suggestions and comments. My gratitude also
extends to John Louth, Merel Alstein, Bethan Cousins, and the whole OUP
production team for their work on this book, as well as to Zeljko Djuric, Dusan
Kanazir, Milica Kostic, Ines Lasic, Zarko Markovic, and Petar Zmak for
preparing the tables of authorities.
Finally, I am of course grateful to my family and friends for their continuing
support—particularly so to a certain circle of friends who made my three years in
Cambridge not only bearable, but happy. The Tapp Fund of Gonville & Caius
College provided me with a more material kind of support, for which I am most
thankful.
Chapter II of the study is a revised version of an article I published as ‘From
Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human
Rights Treaties’, (2008) 8 HRLR 411, while Chapter V is similarly a revision of a
piece I originally published as ‘A Norm Conflict Perspective on the Relationship
between International Humanitarian Law and Human Rights Law’, (2009) 14
JCSL 459, and then in a more expanded form as ‘Norm Conflicts, International
Humanitarian Law and Human Rights Law’, in O. Ben-Naftali (ed.), Human
Rights and International Humanitarian Law (Oxford University Press, 2011). The
remainder of this study has not been published before, although some sections
were reworked as posts at EJIL: Talk!, the blog of the European Journal of
International Law.
viii Preface
It is always a danger to write a book in what is a fast-developing field, as the risk
of obsolescence exponentially increases. There are always new cases and develop-
ments on the horizon when it comes to extraterritoriality and human rights—as
I write, Al-Skeini is pending before the Grand Chamber of the European Court of
Human Rights. One must, however, stop somewhere; the book takes into account
all cases (to the best of my knowledge) decided until December 2010.
Contents
List of Abbreviations xiii

Table of Cases xv
Table of Treaties xxi
I. Introduction 1
1. Outline and Scope of the Study 1
2. Defining Extraterritorial Application 7
3. The Law of Treaties Provides No General Answer 9
4. Basic Normative Framework 11
A. Jurisdiction clauses 11
B. Treaties with dedicated provisions on territorial application 13
C. Treaties with no provisions on territorial application 17
D. Concluding remarks 17
II. From Compromise to Principle 19

1. A Threshold Criterion: Jurisdiction of a State, Not the
Jurisdiction of a Court 19
2. Jurisdiction’s Many Meanings 21
A. A spurious assumption 21
B. Jurisdiction in general international law 23
C. Jurisdiction: an absurdity 26
D. Jurisdiction: a homonym 30
E. Origins of jurisdiction clauses 34
F. Jurisdiction as power 39
3. State Jurisdiction Is Not State Responsibility 41
A. Loizidou: a test of attribution? 41
B. The first possible reading of Loizidou 42
C. The second possible reading of Loizidou 46
D. Attribution as a prerequisite for jurisdiction 51
4. Conclusion 52
III. Policy Behind the Rule 54

1. Introduction 54
2. Universality and Human Dignity 55
3. Sovereignty and Territory 58
4. Sovereignty and Comity to the Territorial State 61
A. The sovereignty of Iraq in Al-Skeini 61
B. Canadian case law on sovereignty and comity 62
C. Comity as a distraction from effectiveness 65
5. Sovereignty, Citizenship, and the Social Contract 67
A. US case law on citizenship and extraterritoriality 67
B. The Guantanamo cases 72
x Contents
C. Evaluating citizenship as a ground for extraterritoriality of
individual rights 76
6. Relativism and Regionalism 83
A. Relativism and regionalism before the European Court 83
B. Relativism and regionalism in Al-Skeini 86
C. Relativism and regionalism evaluated: another face of effectiveness 91
7. Preventing Arbitrary Distinctions and Results and the Abuse of Law 96
8. Political Questions, Deference, and Institutional Incompetence 98
9. Effectiveness and Norm Conflict 103
10. Between Universality and Effectiveness 106
A. What does and what should matter 106
B. Effectiveness: flexibility 110
C. Effectiveness: impact 113
D. Effectiveness: regime integrity 114
E. Effectivness: clarity and predictability 115
F. Conclusion 116
IV. Models of Extraterritorial Application 118

1. Basic Models and Scenarios 118
A. Introduction 118
B. Extraterritorial deprivation of life 120
1. Killing in a territory within the state’s control 120
2. Killing in a territory outside the state’s control 120
3. Killing in a territory outside the state’s control, but within
the territory of a state party to the human rights treaty in
question (espace juridique) 121
4. Killing by third parties 121
C. Extraterritorial deprivation of liberty 122
1. Detention in a territory within the state’s control 122
2. Detention in a place within the state’s control 122
3. Detention on a ship or aircraft 123
4. Killing, torture, or ill-treatment during extraterritorial detention 123
D. Complicity scenarios 124
1. Territorial complicity 124
2. Extraterritorial complicity 124
3. Distinguishing between primary and secondary rule complicity 124
E. Extraterritorial law enforcement 126
F. Transboundary environmental harm 126
2. The Spatial Model: Jurisdiction as Control of an Area 127
A. Introduction 127
B. What is an ‘area’? 129
C. What amounts to ‘control’? 135
1. Lawful or unlawful 135
2. Effective overall control over territory 136
3. Relationship with the threshold of belligerent occupation 141
4. Does control need to be exclusive? 147
D. Control over places and objects 151
1. A general theory? 151
2. Embassies and consulates 154
3. Ships and aircraft 160
E. Outlook 170
Contents xi
3. The Personal Model: Jurisdiction as Authority

and Control over Individuals 173
A. Introduction 173
B. Case law 175
1. UN treaty bodies 175
2. Inter-American institutions 180
3. Early Strasbourg case law 181
4. Post-Bankovic Strasbourg case law 183
C. What amounts to authority and control? Can the personal model
be limited? 187
1. Physical custody 187
2. Control over an individual in a specific place, or by specific agents 193
3. Nationality and membership in the armed forces 193
4. Exercise of a legal power 199
D. The personal model collapses 207
4. A Third Model: Territorial Jurisdiction and the Distinction Between
Positive and Negative Obligations 209
A. Universality unbound 209
B. Textual interpretation and implicit negative obligations 212
C. Prophylactic and procedural positive obligations 215
D. Reconciling universality and effectiveness 219
5. The Special Problem of the ICCPR 222
6. Treaties Without Jurisdiction Clauses 227
V. Norm Conflicts, International Humanitarian Law, and

Human Rights Law 229
1. Introduction 229
2. A Relationship between Norms, not between Regimes 232
3. Norm Conflict Avoidance and Norm Conflict Resolution 236
A. Defining norm conflict 236
B. Methods of norm conflict resolution 237
C. Methods of norm conflict avoidance 239
D. Unresolvable norm conflicts 242
4. Is Lex Specialis a Rule of Conflict Avoidance or of Conflict Resolution? 249
5. Areas of Potentially Unresolvable Norm Conflict 252
A. Preventive detention and judicial review of detention 252
B. Necessity in targeting 254
C. (Transformative) occupation 257
6. Concluding Remarks 259
General Conclusion 262
Bibliography 266
Index 275
List of Abbreviations
ACHR American Convention on Human Rights
ADHR American Declaration on Human Rights
AJIL American Journal of International Law
ASR Articles on State Responsibility
BYIL British Yearbook of International Law
CAT Convention Against Torture
CEDAW Convention on the Elimination of All Forms of Discrimination Against
Women
CERD Convention on the Elimination of All Forms of Racial Discrimination
CRC Convention on the Rights of the Child
ECHR European Convention on Human Rights
EJIL European Journal of International Law
EU European Union
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social, and Cultural Rights
ICJ International Court of Justice
ICLQ International and Comparative Law Quarterly
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the former Yugoslavia
IRRC International Review of the Red Cross
IHL International Humanitarian Law
ILC International Law Commission
JCSL Journal of Conflict & Security Law
JICJ Journal of International Criminal Justice
NATO North Atlantic Treaty Organization
OJLS Oxford Journal of Legal Studies
RdC Recueil des Cours
UDHR Universal Declaration on Human Rights
UK United Kingdom
UN United Nations
US United States
NOTE ON METHOD OF CITATION

Citations to authorities will generally conform to the OSCOLA style. However, citations to
cases will conform to the style of their own jurisdiction, as will standard abbreviations for
journal titles. This study is divided into five chapters, which form separate units with regard
to citation and footnote numbering. Cross-references within each chapter will cite the
section number only, while cross-references to other chapters will indicate both the chapter
number and the section number.
Because of frequency of use, the following works will be cited in abbreviated form
throughout this study, except for their first appearance:
xiv List of Abbreviations
F. Coomans and M. Kamminga (eds), Extraterritorial Application of Human Rights Treaties
(Intersentia, 2004), hereinafter Coomans and Kamminga;
M. Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application

of Human Rights Treaties (Intersentia, 2009), hereinafter Gondek.
Table of Cases
INTERNATIONAL
European Commission of Human Rights
Cyprus v. Turkey (dec.), App. Nos 6780/74 & 6950/74, 26 May 1975,
2 DR 125....................... 27–28, 47, 82–83, 90, 137, 155, 164, 180, 181–182, 189, 197, 253
Cyprus v. Turkey, App. No. 25781/94, Commission Report, 4 June 1999 ................ 43, 47, 90, 137
Freda v. Italy (dec.). App. No. 8916/80, 7 October 1980 ............................................164, 166, 189
Gill and Malone v. The Netherlands and the United Kingdom (dec.),
App. No. 24001/94, 11 April 1996 .....................................................................................156
Hess v. the United Kingdom (dec.), App. No. 6231/73, 28 May 1975,
2 DR 72................................................................................................ 88, 133–134, 149, 204
Illich Sanchez Ramirez v. France (dec.), App. No. 28780/95,
24 June 1996 .............................................................................. 164–165, 166, 183, 187, 189
M & Co. v. Federal Republic of Germany (dec.), App. No. 13258/87, 64 DR 138,
9 February 1990...................................................................................................................241
Stocké v. Germany, App. No. 11755/85, Commission Report, 12 October 1989 .........................182
Thanh v. United Kingdom (dec.), App. No. 16137/90, 12 March 1990 .........................................16
X and Association Y v. Italy (dec.), App. No. 8987/80, 6 May 1981 .............................................206
X v. Federal Republic of Germany (dec.), App. No. 1611/62, 25 September 1965,
8 Yearbook of the European Convention on Human Rights 158 ...........................82, 155, 181
X v. United Kingdom (dec.), App. No. 7547/76, 15 December 1977 ...................................155–156
W v. United Kingdom (dec.), App. No. 9348/81, (1983) 32 DR 190.......................................... 218
WM v. Denmark (dec.), App. No. 17392/90, 14 October 1993...........................................156, 183
European Court of Human Rights

97 members of the Gldani Congregation of Jehovah’s Witnesses and 4 others v. Georgia,
App. No. 71156/01, Judgment, 3 May 2007.......................................................................219
Al-Adsani v. United Kingdom [GC], App. No. 35763/97, Judgment,
21 November 2001 ......................................................................................................240, 246
Al-Saadoon and Mufdhi v. United Kingdom (dec.), App. No. 61498/08,
30 June 2009 ............................................................. 105, 131–134, 135–136, 152–153, 159,
171, 185, 192, 194–195, 245–248, 251, 252
Al-Saadoon and Mufdhi v. United Kingdom, App. No. 61498/08, Judgment,
2 March 2010 .....................................105, 131–134, 159, 171, 185, 192, 245–248, 251, 252
Andreou v. Turkey (dec.), App. No. 45653/99, 3 June 2008 ................................................185–186
Assanidze v. Georgia [GC], App. No. 71503/01, Judgment, 8 April 2004 ........................40–41, 203
Banković and Others v. Belgium and Others [GC] (dec.),, App. No. 52207/99,
12 December 2001 .....................................4, 9, 18, 19, 21–23,23–25, 26, 28–30, 38, 40, 41,
47, 50–51, 53, 54–55, 57, 61–62, 84–86, 87–90, 91–93, 96, 102–103,
108, 114, 116, 118, 120, 121, 126, 128, 132,133, 135–138, 141, 144–146,
154, 160, 163–167, 171, 172, 174, 182–183, 183–187, 187–190, 192,
196–205, 208, 218, 220, 244, 262, 264
Beer and Regan v. Germany [GC], App. No. 28934/95, Judgment, 18 February 1999 .................241
Behrami and Behrami v. France, Saramati v. France, Germany and Norway [GC] (dec.), App. Nos
71412/01 & 78166/01, 2 May 2007 ............................................ 52, 149–150, 184, 204, 241
Ben El Mahi and Others v. Denmark (dec.), App. No. 5853/06, 11December 2006 ....................186
xvi Table of Cases
Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], App. No. 45036/98,
Judgment, 30 June 2005............................................................................. 133, 241, 246, 247
Carson and Others v. the United Kingdom [GC], App. No. 42184/05, Judgment,
16 March 2010 ....................................................................................................................202
Costello-Roberts v. United Kingdom, App. No. 13134/87, Judgment, 25 March 1993.....................49
Cyprus v. Turkey [GC], App. No. 25781/94, Judgment,
10 May 2001 ............................................................16, 26, 85, 86, 90, 91, 92, 136, 137, 138
Drozd and Janousek v. France and Spain, App. No. 12747/87, Judgment,
26 June 1992 .....................................................................................................26–27, 52, 204
Dudgeon v. United Kingdom, App. No. 7525/76, Judgment, 22 October 1981 ..............................95
El Orabi v. France (dec.), App. No. 20672/05, 20 April 2010 .....................................................202
Gaygusuz v. Austria, App. No. 17371/90, Judgment, 16 September 1996......................................81
Gentilhomme, Schaff-Benhadji et Zerouki c. France, App. Nos 48205/99, 48207/99 & 48209/99,
Judgment, 23 April 2002 .......................................................................................................52
Ilascu and others v. Moldova and Russia [GC], App. No. 48787/99, Judgment,
8 July 2004 ........................................ 30, 41, 49–50, 106–107, 118, 138–141, 142–143, 144,
163, 186, 203, 226
Issa v. Turkey, App. No. 31821/96, Judgment,
16 November 2004 .................................33, 92, 137–138, 141, 142, 147, 183–186, 191, 204
Isaak and Others v. Turkey (dec.), App. No. 44587/98, 28September 2006 .................185–186, 191
Loizidou v. Turkey, App. No. 15318/89, Judgment (preliminary objections),
23 February 1995...........................26–29, 32, 41–42, 42–45, 46–52, 74, 85, 87, 91, 92, 109,
118, 122, 127–128, 129, 135, 136–137, 138, 148, 163, 170, 177, 182,
185, 186–187, 199, 203, 247
Loizidou v. Turkey, App. No. 15318/89, Judgment (merits),
28 November 1996 ..............................26–29, 32, 41–42, 42–45, 46–52, 74, 87, 91, 92, 109,
118, 122, 127–128, 129, 135, 136–137, 138, 148, 170, 177, 182, 185, 199, 203
Markovic and Others v. Italy [GC], App. No. 1398/03, Judgment, 14 December 2006 ...............202
Martin v. United Kingdom, App. No. 40426/98, Judgment, 24 October 2006 ............................201
Matthews v. United Kingdom [GC], App. No. 24833/94, Judgment,
18 February 1999.........................................................................................242–243, 251, 261
McCann and Others v United Kingdom, App. No. 18984/91, Judgment,
27 September 1995 ..............................................................................................247, 255–256
Medvedyev and Others v. France, App. No. 3394/03, Judgment,
10 July 2008 ............................................................... 162–164, 167, 169–170, 186–187, 264
Medvedyev and Others v. France [GC], App. No. 3394/03, Judgment,
29 March 2010 ........................................................... 162–164, 167, 169–170, 186–187, 264
Milošević v. The Netherlands (dec.), App. No. 77631/01, 19 March 2002 ........................................6
Mullai and Others v. Albania, App. No. 9074/07, Judgment, 23 March 2010 .............................201
Öcalan v. Turkey (dec.), App. No. 46221/99, 14 December 2000 .............. 165, 187, 189, 193, 206
Öcalan v. Turkey, App. No. 46221/99, Judgment,
12 March 2003 ........................................................................... 165–166, 187, 189, 193, 206
Öcalan v. Turkey [GC], App. No. 46221/99, Judgment,
12 May 2005 .............................................................................. 165–166, 187, 189, 193, 206
Opuz v. Turkey, App. No. 33401/02, Judgment, 9 June 2009 .....................................................219
Osman v. United Kingdom [GC], App. No. 23452/94, Judgment, 28 October 1998 ...146, 211, 217
Pad and Others v. Turkey (dec.), App. No. 60167/00, 28 June 2007 ...........................184–185, 191
Plattform “Ärzte für das Leben” v. Austria, Judgment, 21 June 1988, Series A, No. 139, (1991) 13
EHRR 204...........................................................................................................................219
Quark Fishing Ltd v. United Kingdom (dec.), App. No. 15305/06, 19 September 2006 .................16
Ramirez Sanchez v. France [GC], App. No. 59450/00, Judgment, 4 July 2006 ................6, 164–165
Rigopoulos v. Spain (dec.), App. No. 37388/97, 12 January 1999.........................................161–162
Saddam Hussein v. 21 Countries (dec.), App. No. 23276/04, 14 March 2006 ....................6, 20, 184
Table of Cases xvii
Schalk and Kopf v. Austria, App. No. 30141/04, Judgment, 24 June 2010.....................................95
Sejdovic v. Italy [GC], App. No. 56581/00, Judgment, 1 March 2006 .........................................200
Selmouni v. France [GC], App. No. 25803/94, Judgment, 28 July 1999......................................216
Soering v. United Kingdom, App. No. 14038/88, Judgment,
7 July 1989 .......................................8–9, 16, 26–27, 104, 106, 203–204, 243–248, 251, 261
Solomou and Others v. Turkey, Judgment, App. No. 36832/97, 24 June 2008 .............185–186, 191
Stephens v. Malta (No. 1), App. No. 11956/07, Judgment, 31 March 2009 .................203–204, 264
Treska v. Albania and Italy (dec.), App. No. 26937/04, 29 June 2006 .........................................107
Vo v. France, App. No. 53924/00, Judgment, 8 July 2004.............................................................95
Vrbica v. Croatia, App. No. 32540/05, Judgment, 1 April 2010 ..................................................201
Waite and Kennedy v. Germany [GC], App. No. 26083/94, Judgment, 18 February 1999 ...........241
Women on Waves and Others v. Portugal, App. No. 31276/05, Judgment, 13 January
2009 ....................................................................................................................166–167, 170
Xhavara c. l’Italie et l’Albanie (dec.), App. No. 39473/98, 11 January 2001 .................................162
Yonghong v. Portugal (dec.), App. No. 50887/99, 25 November 1999 ...........................................16
Inter-American Commission of Human Rights

Armando Alejandre Jr and Others v. Cuba (‘Brothers to the Rescue’), Case No. 11.589, Report No. 86/99,
29 September 1999 ..............................................................................................................181
Coard et al. v. United States, Case No. 10.951, Report No. 109/99, Annual Report of the IACHR
1999 ............................................................................................................................180–183
Decision on Request for Precautionary Measures (Detainees at Guantánamo Bay),
12 March 2002, (2002) 41 ILM 532 ...........................................................................................181
Saldaño v. Argentina, Report No. 38/99, Annual Report of the IACHR 1998 .....................180, 197
Inter-American Court of Human Rights

Velasquez Rodriguez Case, Judgment, 29 July1988, Inter-Am.Ct.H.R. (Ser. C)
No. 4 (1988)................................................................................................... 47, 94, 210
International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February
2007 ..................................................................................... 44–45, 47, 49, 94, 213–215, 227
Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russia), Order on the Indication of Provisional Measures,
12 October 2008 .....................................................................................................10–11, 228
Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment,
19 December 2005 ................................................................... 46–47, 59, 128, 137, 177, 234
Arrest Warrant of 11 April 2000 (Congo v. Belgium), Judgment, ICJ Reports 2000, at 3.................25
Asylum (Colombia v. Peru), Judgment, ICJ Reports 1950, p. 275 .................................................245
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion of 9 July 2004, ICJ Reports 2004, p. 136......................... 10, 22, 59, 128, 137, 177, 225,
233–234, 235, 251
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ
Reports 1971, p. 16 .......................................................................................................60
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
ICJ Reports 1996, p. 226............................................................ 233–234, 235, 240, 250, 251, 255
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgment
(merits), 27 June 1986, ICJ Reports 1986, at 14 ........................................ 43, 44, 49, 52, 136
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie, Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 114 ..238
xviii Table of Cases
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports
1949, p. 174 ................................................................................................................................104
United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, ICJ Reports
1980, p. 3 ............................................................................................................................159
International Criminal Tribunal for the Former Yugoslavia

Prosecutor v. Naletilic, IT-98-34-T, Trial Chamber Judgment, 31 March 2003............................143
Prosecutor v. Sefer Halilović, IT-01-48-A, Appeals Chamber, Judgment, 16 October 2007 .............53
Prosecutor v. Tadić, IT-94-1, Trial Chamber, Judgment, 7 May 1997 ............................................44
Prosecutor v. Tadić, IT-94-1, Appeals Chamber, Judgment, 15 July 1999 ......... 4, 42- 45, 48–49, 50
UN Treaty Bodies: Human Rights Committee

Consideration of state party reports and general comments
Concluding Observations of the Human Rights Committee: Cyprus, UN Doc. CCPR/C/
79/Add.39 (1994) ................................................................................................106–107
Concluding Observations of the Human Rights Committee : Israel, UN Doc. CCPR/C/79/
Add.93 (1998) ...................................................................................................... 48, 128
Concluding Observations of the Human Rights Committee : United States of America, UN
Doc. CCPR/C/USA/CO/3, 15 September 2006....................................................... 2, 59
Concluding Observations of the Human Rights Committee–United Kingdom, UN Doc.
CCPR/C/GBR/CO/6, 18 July 2008 ............................................................................178
Human Rights Committee, General Comment No. 29, UN Doc. CCPR/C/21/Rev.1/
Add.11 (2001) .............................................................................................................254
Human Rights Committee, General Comment 31, Nature of the General
Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13
(2004) ............................................................................................. 11, 47, 178, 209, 234
Individual cases
Celiberti de Casariego v. Uruguay (1981) 68 ILR 41, Communication No. 56/1979, UN Doc. CCPR/
C/OP/1 at 92 (1984) .....................................................................................97, 175–178, 183
Ibrahima Gueye et al. v. France, Communication No. 196/1983, U.N. Doc. Supp. No. 40 (A/44/40)
at 189 (1989) .......................................................................................................................202
Judge v. Canada, UN Doc. CCPR/C/78/D/829/1998, 5 August 2002 ............................................9
Kindler v. Canada, UN Doc. CCPR/C/48/D/470/1991, 11 November 1993..................................9
Lichtensztejn v. Uruguay, Communication No. 77/1980, UN Doc. CCPR/C/OP/2
at 102 (1990) ...............................................................................................................205, 206
Lopez Burgos v. Uruguay (1981) 68 ILR 29, Communication No. R.12/52, UN Doc. Supp. No. 40 (A/
36/40) at 176 (1981) .............................................................. 56, 97, 175–178, 183, 199, 200
Vidal Martins v. Uruguay, Communication No. R.13/57, U.N. Doc. Supp. No. 40 (A/37/40) at 157
(1982) ..................................................................................................................................178
UN Treaty Bodies: Committee Against Torture

Consideration of state party reports and general comments
Conclusions and Recommendations: United Kingdom of Great Britain and Northern
Ireland, UN Doc. CAT/C/CR/33/3, 10 December 2004 ............................................128
Table of Cases xix
Conclusions and Recommendations of the Committee Against Torture: United States of
America, UN Doc. CAT/C/USA/CO/2, 25 July 2006 ..................................... 2, 59, 179
General Comment No. 2, UN Doc. CAT/C/GC/2,
24 January 2008.................................................................................. 152, 167, 168, 179
Individual cases
P.K. et al. v. Spain, Communication No. 323/2007, UN Doc. CAT/C/41/D/323/2007,
21 November 2008, hereinafter the Marine I case........................................................167–168
UN Treaty Bodies: Committee on the Elimination of Racial Discrimination

General Recommendation No. 30, UN Doc. HRI/GEN/1/Rev.7/Add.1 (2004) ...........81
UN Treaty Bodies: Committee on the Rights of the Child
Concluding Observations of the Committee on the Rights of the Child: Israel, UN Doc.
CRC/C/15/Add.195, 4 October 2002 .........................................................................128
National case law

Canada
Amnesty International Canada & British Columbia Civil Liberties Association v. Chief of the
Defence Staff for the Canadian Forces et al., 2008 FC 336, hereinafter
Afghan Detainees FC .........................................................................................64–67, 103–105
Amnesty International Canada & British Columbia Civil Liberties Association v.
Chief of the Defence Staff for the Canadian Forces et al., 2008 FCA 401, hereinafter Afghan
Detainees FCA ...................................................................................................65–67,103–105
Canada (Justice) v. Khadr, 2008 SCC 28 ....................................................................64, 79–80, 124
Canada (Prime Minister) v. Khadr, 2010 SCC 3...............................................................79–80, 124
R. v. Hape, 2007 SCC 26............................................................................ 62–68, 78–79, 110, 126
Slahi v. Canada, 2009 FC 160 .......................................................................................................80
Slahi v. Canada, 2009 FCA 259.....................................................................................................80
Slahi v. Canada, 2010 CarswellNat 297 .........................................................................................80
Israel
Gaber Al-Bassiouni v. Prime Minister, HCJ 9132/07, Judgment, 30 January 2008 .......................144
The Public Committee against Torture in Israel et al v. The Government of Israel et al. HCJ 769/02,
Judgment, 11 December 2006 .............................................................................................255
United Kingdom
A and Others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 ......79
BBC v. ProLife Alliance [2003] UKHL 23, [2004] 1 AC 185.........................................................99
Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) [2006]
UKHL 26, [2007] 1 AC 270 ...............................................................................................240
R. (Anderson) v. Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837. 242
R. (Al-Jedda) v. Secretary of State for Defence
[2007] UKHL 58, [2008] 1 AC 332..................................... 87, 113, 131, 238, 241, 250, 252
R. (Al-Saadoon and Another) v. Secretary of State for Defence [2008] EWHC 3098 .......................105
R. (Al-Saadoon and Another) v. Secretary of State for Defence [2009]
3 WLR 957, [2009] EWCA Civ 7.......................................................................................105
R. (on the application of Al-Skeini and Others) v. Secretary of State for Defence, [2004] EWHC 2911
(Admin), [2004] All ER (D) 197 (Dec), hereinafter Al-Skeini DC ...........................87–88, 153
xx Table of Cases
R. (on the application of Al-Skeini and Others) v. Secretary of State for Defence, [2005]
EWCA Civ 1609, [2005] All ER (D) 337 (Dec), hereinafter
Al-Skeini CA..............................87–89, 95, 101, 111, 115, 132, 145–146, 188–190, 192, 211
R. (on the application of Al-Skeini and Others) v. Secretary of State for Defence, [2007] UKHL 26,
[2008] AC 153, hereinafter Al-Skeini HL............. 47, 50–51, 61–62, 87, 89–92, 95, 101–102,
111, 132, 145–146, 153, 208
R. (B and Others) v. Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344,
[2005] QB 643 ............................................................................................................244–245
R. (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61; [2009] 1 AC
453 ........................................................................................................................................16
R. (Gentle) v. Prime Minister [2008] 1 AC 1356 ..........................................................193–195, 216
R. (Hassan) v. Secretary of State for Defence [2009] EWHC 309 (Admin) .....................................172
R. (Middleton) v. West Somerset Coroner [2004] 2 AC 182............................................................216
R. (Quark Fishing Ltd) v. Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57,
[2006] 1 AC 529 ...................................................................................................................16
R. (Smith) v. Secretary of State for Defence [2008] EWHC 694 (Admin).......................................195
R. (Smith) v. Secretary of State for Defence [2009] EWCA Civ 441 .......................................195–196
R. (Smith) v. Secretary of State for Defence [2010] UKSC 29 .........................................102, 196–197
United States
Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003)......................................................69, 72
Boumediene v. Bush, 128 S. Ct 2229 (2008)........................................ 74–78, 80, 96–100, 109–110
Crowell v. Benson, 285 U. S. 22 (1932) ........................................................................................240
DeSheaney v. Winnebago, 489 U.S. 189 (1989) ............................................................................216
Estelle v. Gamble, 429 U.S. 97 (1976) ..........................................................................................217
Farmer v. Brennan, 511 U.S. 825 (1994) .....................................................................................217
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) ..............................................................................251
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).................................................................................74, 78
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ...............................................................................68
INS v. St. Cyr, 533 U.S. 289 (2001) ............................................................................................240
Johnson v. Eisentrager, 339 U.S. 763 (1950) .............................................................................69–70
Maqaleh v. Gates, No. 09-5265, (D.C. Cir. 2010) .......................................................................101
Munaf v. Geren, 128 S.Ct. 2207 (2008)...................................................................................77–78
Rasul v. Bush, 542 U.S. 466 (2004)............................................................... 72, 74, 76–77, 99, 110
Reid v. Covert, 354 U.S. 1 (1957) ................................................................... 68, 93, 104, 110, 115
Tennessee v. Garner, 471 U.S. 1 (1985) ........................................................................................190
United States v. Alvarez-Machain, 504 U.S. 655 (1992) ...............................................................126
United States v. Fisk, 70 U.S. (3 Wall.) 445 (1865)......................................................................223
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)............................. 68–69, 77–78, 110, 126
Table of Treaties
American Convention on Human Rights (ACHR), OAS Treaty Series
No. 36, 1144 UNTS 123, entered into force 18 July 1978.............. 12, 17–18, 108,
127, 180, 183, 213, 222, 231
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, 1465 UNTS 85, entered into force 26 June 1987 ........... 12, 19–20,
31–33, 58–59, 96, 104, 125, 127–131, 152, 169, 173, 179, 208, 212–215
Convention concerning Forced or Compulsory Labour (ILO No. 29), 39 UNTS 55,
entered into force 1 May 1932 ........................................................................ 36, 39
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), 1249 UNTS 13, entered into force 3 September 1981......... 13, 17, 227
Convention on the Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on their Destruction, 32 ILM 800 (1993) .............40
Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques, 16 ILM 88 (1977) .......................... 40
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction, 36 ILM 1507 (1997) ..................40
Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR), ETS 5, 213 UNTS 222, entered into force 3 September
1953 ................................................................4, 6, 8–12, 14–16, 19–22, 25–29,
33–42, 46–51, 53–62, 66, 79–82, 84–96, 98, 101–102, 105, 107–108,
111–128, 131–141, 144–147, 149, 154–157, 159–167, 169, 172, 174,
180–188, 190–203, 205–208, 211–215, 218–221, 231, 233–234, 238–250,
252–255, 257, 259–260, 263–264
Convention on the Rights of the Child (CRC), 1577 UNTS 3, entered into
force 2 September 1990 ................................................. 12, 18, 23, 128, 213
European Code of Social Security, ETS 48 & 139, 6 November 1990 ..........................15
European Convention on Extradition, ETS 24, 13 December 1957 ..................... 15, 204
European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment, ETS 126, entered into force 1 February 1989....13, 15, 131
Framework Convention for the Protection of National Minorities, ETS 157,
1 February 1995 ............................................................................................... 35
Geneva Convention (I) for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, 75 UNTS 31, entered into force
October 21, 1950 .............................................17–18, 20, 74, 79, 173–174, 238
Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85, entered into
force October 21, 1950 ......................................... 17–18, 20, 74, 79, 173–174, 238
Geneva Convention (III) relative to the Treatment of Prisoners of War, 75 UNTS
135, entered into force October 21, 1950 ............ 17–18, 20, 74, 79, 172–174, 238,
249, 253
Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of
War, 75 UNTS 287, entered into force October 21, 1950........... 17–18, 20, 74, 79,
173–174, 238, 249, 253, 257–259
xxii Table of Treaties
Inter-American Convention on Forced Disappearance of Persons, 33 ILM 1429
(1994), entered into force 28 March 1996........................................................ 12
Inter-American Convention to Prevent and Punish Torture, OAS Treaty Series
No. 67, entered into force 28 February 1987 ................................. 12, 31, 38–39
International Convention on the Elimination of All Forms of Racial
Discrimination (CERD), 660 UNTS 195, entered into force
4 January 1969 ................................................10, 12, 20, 33, 212, 227–228
International Convention for the Protection of All Persons from Enforced
Disappearance, E/CN.4/2005/WG.22/WP.1/Rev. 4 (2005) ......... 12, 30–31, 139,
160–161
International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families, 2220 UNTS 93, entered into force
1 July 2003............................................................................................... 11, 213
International Convention for the Suppression of Acts of Nuclear Terrorism, GA
res. 59/290........................................................................................................ 31
International Convention for the Suppression of the Financing of Terrorism, 39 ILM
270 (2000) .............................................................................................................31
International Convention for the Suppression of Terrorist Bombings, 2149 UNTS 256
(1998) ....................................................................................................................31
International Covenant on Civil and Political Rights (ICCPR), 999 UNTS 171,
entered into force 23 March 1976 .............................8–9, 11–13, 16–20, 23, 33,
37–39, 46–48, 56, 58–60, 83, 93, 96–97, 104, 106–107, 114, 119,
123, 127–129, 144, 175–179, 200, 202, 206, 209, 212, 222–226,
231, 233, 239–240, 249–255, 257, 259–260
International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3,
entered into force 3 January 1976........................... 17–18, 23, 32, 127–128, 227
Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, GA res. A/RES/57/199, adopted
18 December 2002 ........................................................................... 12, 131, 152
Optional Protocol to the Convention on the Elimination of Discrimination
against Women, 2131 UNTS 97, entered into force 22 December 2000.... 13, 17
Optional Protocol to the International Covenant on Civil and Political Rights,
999 UNTS 302, entered into force 23 March 1976 ............ 12–13, 20, 175, 183,
205, 221
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts (Additional
Protocol I), 1125 UNTS 3, entered into force December 7, 1978 ... 20, 143, 231,
254–255
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts (Additional
Protocol II), 1125 UNTS 609, entered into force December 7, 1978 ........... 20, 231
Second Optional Protocol to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty, 29 ILM 1464 (1990), entered
into force 11 July 1991..................................................................................... 11
Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention
of 1926, 60 LNTS 253, entered into force 9 March 1927......................... 36–37, 39
Treaty of Peace between the Allied and Associated Powers and Austria; Protocol,
Declaration and Special Declaration, St Germain-en-Laye, 10 September 1919,
Table of Treaties xxiii
text available at <http://www.austlii.edu.au/au/other/dfat/treaties/
1920/3.html>................................................................................................... 34
United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, 28 ILM 497 (1989) ............................................ 31
Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679, entered
into force 27 January 1980 ................ 7, 10, 13, 16, 21, 54, 98, 104, 112, 125, 222,
238–240, 243, 246, 251
I
Introduction
1. Outline and Scope of the Study
If a state affects the lives of individuals outside its sovereign borders, when does it
owe them obligations pursuant to the human rights treaties to which it is a party?
Answering this question is the object of this study. In recent years, the issue of the
extraterritorial application of human rights treaties has truly come to the fore. Not
only is it now the subject of a growing literature, but more and more actual cases are
being litigated. Courts have involved themselves on human rights grounds in such
controversies as Turkey’s invasion of northern Cyprus, NATO’s use of force against
Serbia, Russia’s involvement in Georgia, or the US and UK invasion of Iraq. No
longer are such cases examined solely from the more orthodox standpoints of the jus
ad bellum and the jus in bello, or state sovereignty more generally. Now it is
increasingly the individuals directly affected by extraterritorial state action who
are pursuing the avenues open to them under international human rights law. And
because the impact of human rights treaties in an extraterritorial context is growing,
states need to take it into account in their policy-making.
Many of the controversies surrounding the extraterritorial application of human
rights treaties which will be explored in this study have been pushed to their limit
by the actions of certain states engaged in the ongoing, if rebranded, ‘Global War
on Terror’, particularly by the United States under the administration of George
W. Bush, which was adept at creating and exploiting purported gaps in interna-
tional law to further its purposes.1 Thus the United States has argued in interna-
tional fora that human rights treaties to which it is a party do not apply to persons it
has detained outside its sovereign territory as ‘unlawful enemy combatants’ in
Guantanamo Bay, Cuba, or in its bases in Iraq and Afghanistan, and that even if
they did, they do not apply in times of war.2 Both of these claims have been
strongly rejected by UN treaty bodies, though without any immediate effects on
1
For a general discussion and more background, see R. Wilde, ‘Legal “Black Hole”? Extraterritorial
State Action and International Treaty Law on Civil and Political Rights’, (2005) 26 Mich. J. Int’l L.
739.
2
See, e.g., the Opening Remarks by John Bellinger, Legal Adviser, US Department of State, before
the UN Committee against Torture, 5 May 2006, available at <http://www.state.gov/g/drl/rls/68557.
htm> and the Opening Statement of Matthew Waxman, Head of US Delegation before the UN
Human Rights Committee, 17 July 2006, available at <http://2001-2009.state.gov/g/drl/rls/70392.
htm>.
2 Extraterritorial Application of Human Rights Treaties
US compliance.3 Though the Obama administration has made some changes to US
anti-terrorism strategy and has dropped the ‘global war’ moniker, its overall
approach to international terrorism—and, consequently, to the relevance of
human rights—has remained broadly the same as that of the Bush administration,
at least in its somewhat less unilateralist second term. In fact, the Obama adminis-
tration has actually escalated some of the policies that directly implicate the
extraterritorial application of human rights treaties, most notably the targeted
killing of suspected terrorists through the use of unmanned aerial vehicles, or
drones, in Pakistan, Afghanistan, and Yemen.
Most of these controversies are to an extent counterintuitive. Human rights are,
after all, supposed to be universal—why should it matter whether a state violates a
person’s rights through killing, torture, indefinite detention, or unfair trials by
acting within its territory or outside it? Indeed, when a state acts against an
individual outside its territory, there is almost a human rights reflex to immediately
venture into the substantive issue of whether the person’s rights were violated. For
example, in November 2002, on Yemeni soil and with the apparent consent of the
Yemeni government, a US Predator drone fired a missile killing the suspected
mastermind of the USS Cole terrorist bombing—an action condemned, among
others, by the late Anna Lindh, then the foreign minister of Sweden, as a ‘summary
execution that violates human rights’.4 Yet, as a matter of law, this statement simply
begs the question of whether the target of this attack even had rights vis-à-vis the
United States, or whether he had such rights only in relation to Yemen, which
permitted the United States to assassinate him.5
At the legal level, the question whether a Yemeni national, who is living in
Yemen when he is killed by the United States with the consent of the Yemeni
government, has rights vis-à-vis the United States is a matter of treaty interpreta-
tion. As we shall see, the scope of application of many major human rights treaties is
defined by a very similar clause: the persons concerned must fall within the state’s
jurisdiction for that person to be able to raise his or her rights against the state. This
introductory chapter will define more precisely what is meant by the extraterritorial
application of human rights treaties, explain that the law of treaties sets no general
rules on extraterritorial application, and outline the basic normative framework of
the human rights treaties which are the object of this study.
Having said that, of course one might well ask what a human rights treaty is to
begin with. I will not attempt to provide an abstract definition of this notion, nor
try to divine some supposedly unique characteristics that these treaties might have
3
See the Conclusions and Recommendations of the Committee Against Torture: United States of
America, UN Doc. CAT/C/USA/CO/2, 25 July 2006, paras 14 and 15 and the Concluding
Observations of the Human Rights Committee: United States of America, UN Doc. CCPR/C/
USA/CO/3, 15 September 2006, para. 10.
4
‘Killing probes the frontiers of robotics and legality’, The Guardian, 6 November 2002, available
at <http://www.guardian.co.uk/usa/story/0,12271,834311,00.html>.
5
The Yemeni government still frequently consents to the US use of force on its territory, albeit
furtively, so as to avoid a domestic political backlash—see ‘WikiLeaks cables: Yemen offered US “open
door” to attack al-Qaida on its soil’, The Guardian, 3 December 2010, available at <http://www.
guardian.co.uk/world/2010/dec/03/wikileaks-yemen-us-attack-al-qaida>.
Introduction 3
in relation to other international agreements. Much has already been written on

this topic,6 to which there is little useful to add. It is, of course, possible to
broadly identify human rights treaties by their subject-matter as those treaties
which have the object of safeguarding those rights of individuals which are
somehow perceived as being inherent in their human dignity. However, the
specific treaties which will be analysed in this thesis will be set out in the
following section.
I should also note at this point that this study will not be dealing with the
extraterritorial application of customary human rights law. Many scholars have
argued that the rules announced in the Universal Declaration of Human Rights
(UDHR) and later implemented in legally binding treaties have now attained
customary status.7 As an exhortative instrument, the UDHR, much like the
American Declaration on Human Rights, has no clause defining its territorial
scope.8 Some authors have thus suggested that although the territorial scope of
human rights treaties may be limited, no such limitation attaches to human
rights arising under custom.9 However, bearing in mind the many difficulties
which as a general matter surround the inference of customary rules from the
practice of states acting pursuant to a treaty obligation,10 it does not seem at all
possible to disentangle the territorial limitations on human rights as prescribed
in treaties from any customary substantive rules of human rights law. In other
words, it is quite unlikely that states have assumed more extensive obligations
under customary human rights law than they have done under treaty law. Even
if they did, there is rarely any forum for enforcing such obligations directly.
Customary human rights law will therefore generally be outside the purview of
this study.
Among the relevant human rights treaties, a greater emphasis will be put on
treaties protecting civil and political rights, for the sole reason that there is much
more case law and other material to work with in respect of these treaties than those
6
See, e.g., M. Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in
International Law’, (2000) 11 EJIL 489; B. Simma, ‘International Human Rights and General Interna-
tional Law: A Comparative Analysis’, (1995) 4 Collected Courses of the Academy of European Law 153. See
also J. Crawford, ‘Multilateral Rights and Obligations in International Law’, (2006) 319 RdC 325.
7
See, e.g., H. Hannum, ‘The Status of the Universal Declaration of Human Rights in National
and International Law’(1995–1996) 25 Ga. J. Int'l.& Comp. L. 28, at 317–52; V. Dimitrijevic,
‘Customary Law as an Instrument for the Protection of Human Rights’, (2006) ISPI 7 Working
Papers, available at <http://www.ispionline.it/it/documents/wp_7_2006.pdf>.
8
However, the last paragraph of the Preamble of the UDHR does make a reference to territorial
application, as it speaks of the UDHR
as a common standard of achievement for all peoples and all nations, to the end that every
individual and every organ of society, keeping this Declaration constantly in mind, shall
strive by teaching and education to promote respect for these rights and freedoms and by
progressive measures, national and international, to secure their universal and effective
recognition and observance, both among the peoples of Member States themselves and
among the peoples of territories under their jurisdiction. (emphasis added)
9
See, e.g., N. Lubell, Extraterritorial Use of Force Against Non-State Actors (Oxford University
Press, 2010), at 232–5.
10
See, e.g., the Final Report of the International Law Association’s Committee on the Formation of
Customary (General) International Law (London, 2000), at 42 et seq.
protecting socio-economic rights.11 That said, this study will proceed from the
assumption that there is something to be gained from focusing on problems common
to all or most human rights treaties, and will view these treaties as a whole. Hence, it is
generally structured thematically, issue by issue, not chronologically or treaty by treaty.
Of all the treaties, I will focus the greatest attention on the European Convention
on Human Rights, for two reasons. First, the ECHR system is by far the strongest
of all human rights regimes (if far from perfect) in its ability to effectively secure
compliance and have a direct impact on state policy. The stakes are highest in
Strasbourg, because the Court will be listened to. Secondly, it is precisely because
the stakes are highest in Strasbourg that the jurisprudence of the European Court of
Human Rights on extraterritorial application is the richest and the most developed.
At the same time, it is the most problematic, suffering from rampant casuistry and
conceptual chaos. It is a jurisprudence of (at times quite unprincipled) compromise,
caused mostly by the Court’s understandable desire to avoid the merits of legally
and politically extremely difficult cases by relying on the preliminary issue of
extraterritorial application.
Chapter II of this study will try to clear up some of this conceptual confusion. It
will examine the notion of state jurisdiction in human rights treaties, and will
attempt to place it within the framework of international law. Is this notion the
general concept of jurisdiction one finds in public international law, as contem-
plated by the European Court in Bankovic,12 or is it a distinct, autonomous
concept, which is a part of a self-contained human rights regime?13 Is it a simple
admissibility requirement for an application,14 or a test of attribution in the
framework of state responsibility, as assumed by the International Criminal Tribu-
nal for the Former Yugoslavia in the Tadic case,15 or is it in fact a threshold criterion
11
For a detailed examination of the extraterritorial reach of treaties on socio-economic rights, see
M. Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of Human
Rights Treaties (Intersentia, 2009), at 291 et seq. See also F. Coomans, ‘Some Remarks on the
Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights,’
in F. Coomans and M. Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Inter-
sentia, 2004), 183; R. Künnemann, ‘Extraterritorial Application of the International Covenant on
Economic, Social and Cultural Rights’, in Coomans and Kamminga 201; S. Skogly, Beyond National
Borders: States’ Human Rights Obligations in International Cooperation (Intersentia, 2006), as well as the
contributions in M. Gibney and S. Skogly, Universal Human Rights and Extraterritorial Obligations
(University of Pennsylvania Press, 2010).
12
Bankovic and Others v. Belgium and Others [GC] (dec.), App. No. 52207/99, 12 December
2001. The applicants in Bankovic were the victims of the bombing of the RTS television station in
Belgrade by NATO airplanes during the 1999 NATO campaign against Serbia. They filed the
application against all NATO member states that were also parties to the ECHR, claiming that
these states were jointly responsible for the violation of their human rights, above all the right to
life. The Grand Chamber of the European Court declared the application inadmissible, holding that
the applicants were outside the jurisdiction of the respondent states in the sense of Article 1 ECHR,
and accordingly had no rights under the ECHR that they could enforce. Bankovic will be discussed in
detail throughout this study, but in particular in Chapters II and IV.
13
See M. Scheinin, ‘Extraterritorial Effect of the International Covenant on Civil and
Political Rights’, in Coomans and Kamminga 73.
14
See M. Nowak, CCPR Commentary (Engel, 2nd revised edn, 2005), at 858–62.
15
Prosecutor v. Tadić, IT-94-1, Judgment, Appeals Chamber, 15 July 1999.
Introduction 5
determining whether a human rights obligation exists in the first place?16 These are
the questions I hope to answer.
Chapter II begins the inquiry into the semantic, ordinary meaning of the
jurisdiction clauses in human rights treaties, and of their construction into work-
able legal concepts and rules. Their interpretation cannot be complete, however,
without examining the object and purpose of these treaties, and the various policy
considerations which influence courts in their decision-making. This will be the
object of Chapter III, which will focus on the tension between universality and
effectiveness; this is, I submit, the prime cause of methodological and conceptual
inconsistencies in the case law. Chapter IV will conclude the interpretative inquiry
into the meaning of the jurisdiction clauses, and will elaborate on the several
possible models of extraterritorial application of human rights treaties. Finally,
Chapter V will explore the relationship between international humanitarian law
and international human rights law from a norm conflict perspective, as the
interaction between these two bodies of law is frequently a concurrent issue with
that of extraterritorial application, implicating the same policy considerations.
Most of the case law that we will be examining is of fairly recent extraction. It
appears that the problem of the extraterritorial application of human rights treaties
has been growing progressively more acute in the past decade or so. It is indeed
rather startling that such a fundamental issue regarding the scope of application of
these treaties has not been definitively resolved much earlier during their life-span.
One, almost trite, response to this observation would be that in the age of
globalization states are increasingly affecting the human rights of individuals
outside their borders, and that this explains both the increase in litigated cases on
extraterritorial application and the growing importance of the issue generally.
There is some truth in this remark, particularly with regard to socio-economic
rights and transnational criminal law enforcement. There is also, however, some-
thing profoundly mistaken in suggesting that most of the situations which today
involve the extraterritorial application of human rights treaties are truly novel.
States, especially powerful states, have always acted outside their borders and have
always affected the lives of foreigners. They have moreover continued to do so even
in the period after the Second World War, in which the modern human rights
instruments were created. It seems that the better explanation for the increasing
urgency of this topic is that society at large has changed and is changing still. Our
culture has been permeated by law generally and human rights specifically to such a
level that even those state acts that have hitherto been considered as the ultimate
expressions of sovereign prerogative have become exposed to human rights scrutiny,
in public discourse as well as in courts. We live in an age of rights,17 and the
rhetoric of rights is no longer solely the province of increasingly aggressive lawyers
and human rights activists, but is employed by policy-makers and actors of all
stripes.
16
See R. Lawson, ‘Life after Bankovic: On the Extraterritorial Application of the European
Convention on Human Rights’, in Coomans and Kamminga 83.
17
L. Henkin, Age of Rights (Columbia University Press, 1996).
Hence, people complain to human rights bodies more frequently and they do so
in situations undreamed of even fairly recently.18 If, for example, an international
lawyer had predicted even just a decade or two ago that Saddam Hussein, of all
people, would soon be lodging an application with the European Court of Human
Rights, he would have been thought eccentric at best. Yet this is exactly what
happened after the 2003 invasion of Iraq, and that particular case turned on the
territorial scope of application of the European Convention.19
In another example straight out of the pages of a spy novel, the family of
Alexander Litvinenko, a former high-ranking officer of the Russian security services
who was fatally poisoned in London in November 2006 with polonium, a highly
radioactive substance, is reported to have lodged an application against Russia with
the European Court.20 On his deathbed, Mr Litvinenko accused the Kremlin of
involvement in his death and his family now argues that Russia violated several
articles of the European Convention. The case is still pending, and clearly the
applicants’ prospects depend on whether Russia’s obligations under the European
Convention can be interpreted to extend to a person killed in London.
There is no little irony in the fact that today even deposed dictators,21 former
KGB officers, or Marxist-Leninist revolutionaries cum notorious terrorists22 try to
avail themselves of the protections granted by international human rights law.
Indeed, one could also view this phenomenon as a corollary of the widespread
‘humanization’ that international law has been subjected to under the influence of
human rights.23 That humanizing effect is furthermore not confined to interna-
tional law and international courts, as similar issues have arisen before domestic
courts as well. For example, US courts have grappled with the question of the
extraterritorial application of the US Constitution to detainees in Guantanamo or
in US bases in Afghanistan, while UK courts have dealt with the acts of UK armed
forces in Iraq under the ECHR and the Human Rights Act 1998. In sum, human
rights and their universalist premise have become internalized to such an extent that
their extraterritorial application is no longer merely a theoretical issue.
At this point I must say that this study is a product of the same process. It is not
just an attempt to solve a doctrinal puzzle, or to bring together the disparate strands
of the case law. It necessarily has an ideological bent. Human rights treaties are
themselves not value-neutral instruments, and the process of their interpretation
cannot be completely value-neutral either. I start from the assumption that human
rights grounded in universal human dignity are a good thing, but this is not an
assumption that I am able, or wish, to defend here. What matters is that this
See in that regard G. Simpson, ‘The Death of Baha Mousa’, (2007) 8 Melbourne JIL 340.
18
19
Saddam Hussein v. 21 Countries (dec.), App. No. 23276/04, 14 March 2006.
20
See ‘Litvinenko widow takes case to European Court’, Reuters, 22 May 2007, available at
<http://www.reuters.com/article/idUSL2264003120070522>.
21
See also Milošević v. The Netherlands (dec.), App. No. 77631/01, 19 March 2002.
22
Ramirez Sanchez v. France [GC], App. No. 59450/00, Judgment, 4 July 2006.
23
See generally T. Meron, The Humanization of International Law (Nijhoff, 2006); M. Kamminga
and M. Scheinin (eds), The Impact of Human Rights Law on General International Law (Oxford
University Press, 2009).
Introduction 7
assumption is not just my own personal view, but the normative premise of the
entire body of law that I will be analysing. Thus, to the extent that value judgments
prove to be necessary, this study is part of a project—an academic and not an
activist project, but a project nonetheless—with the general aim of furthering the
humanization of both international law and the reality of international relations.
To conclude this introduction, this is a study on human rights which is
unconcerned with the actual substantive content of human rights treaties, but is
concerned instead with the preliminary conditions for their application. However,
although the interpretation of the jurisdiction clauses is conceptually distinct from
the substantive application of a treaty to a specific issue, we will see that this is
simply not the case in practice. Rather, the preliminary question of application is
frequently used as a proxy for dealing with the merits, as nothing more than a
judicial avoidance technique. My central argument is that the only way that the case
law on the threshold issue of extraterritorial application can be sensible and
coherent is if it is divorced from such an unstated assessment of the merits. This,
however, will only be possible if due regard is paid to considerations of effective-
ness, so that the actual substantive application of a human rights treaty in an
extraterritorial context does not appear to be hopelessly unrealistic or utopian.
2. Defining Extraterritorial Application

Before venturing any further in explaining the normative framework that regulates
the territorial scope of application of human rights treaties, I must first briefly
define what, in fact, is the extraterritorial application of a human rights treaty. In its
commentaries to the Draft Articles on the Law of Treaties (later to become the
Vienna Convention on the Law of Treaties (VCLT), the International Law
Commission (ILC) stated that
[c]ertain types of treaty, by reason of their subject matter, are hardly susceptible of territorial
application in the ordinary sense. Most treaties, however, have application to territory and
a question may arise as to what is their precise scope territorially.24
Human rights treaties fall within the latter category. As the ILC explains, it is by
looking at the subject-matter of a treaty—the content of the rights and obligations
that it creates—that we can tell whether and how these rights and obligations apply
territorially. With respect to human rights treaties specifically, we must note that
they only impose obligations on their states parties, and do not do so for third states
or private individuals. Moreover, they create obligations not only between the states
parties themselves, but also between states and individuals—indeed, that is their
whole purpose. The application of a human rights treaty to a particular individual
thus requires that a state owes that individual some legal obligation under the
treaty.
24
ILC, ‘Draft Articles on the Law of Treaties with Commentaries’, (1996) 2 Yearbook of the
International Law Commission 187, at 213.
Extraterritorial application simply means that at the moment of the alleged
violation of his or her human rights the individual concerned is not physically
located in the territory of the state party in question, a geographical area over which
the state has sovereignty or title. Extraterritorial application of a human rights treaty
is an issue that will most frequently arise from an extraterritorial state act, i.e.
conduct attributable to the state, either of commission or of omission, performed
outside its sovereign borders—for example, the killing of a suspected terrorist in
Pakistan by a US drone. However—and this is a crucial point—extraterritorial
application does not require an extraterritorial state act, but solely that the individ-
ual concerned is located outside the state’s territory, while the injury to his rights
may as well take place inside it. For instance, if we accept that the ECHR applies to
the taking within the UK of the property of a UK national living in Monaco in tax
haven bliss, this would also be an instance of extraterritorial application, since the
individual concerned is not himself within the UK’s territory even if his property is.
It can be somewhat misleading to talk about the extraterritorial application of
human rights treaties as a useful category, which is why I sought to define it. First,
with the possible exception of the International Covenant on Civil and Political
Rights (ICCPR),25 the actual text of the relevant treaties makes no mention of title
over territory as the threshold for their applicability. Rather, the treaties require that
the individual be within or subject to the state’s jurisdiction.26 As I will shortly
explain, this is a concept revolving around de facto control over territory, and
perhaps also individuals. It is not about title or sovereignty over territory, which
is, or should be, perfectly irrelevant for the treaties’ territorial scope. Jurisdiction is
the actual exercise of control and authority by a state, while title or sovereignty
establishes the state’s right in international law to exercise such authority within a
specific territory. Secondly, an emphasis on the extraterritorial application of
human rights treaties may give the mistaken impression that no issue of applicabil-
ity can arise intra-territorially.27 A state may have title over territory, but not have
jurisdiction, i.e. de facto control, over it. Thus, it is Cuba, not the United States,
that has title over Guantanamo Bay, yet it would to my mind be absurd to say that
it is Cuba, rather than the United States, which has the obligation to ensure the
human rights of persons detained there.28
Extraterritorial application should not be confused with other phenomena. Most
notably, in Soering29 the European Court incorporated into Article 3 ECHR the
principle of non-refoulement first developed in refugee law, ruling that the UK could
not extradite a murder suspect to the US since there was a serious risk that if
convicted he would be sentenced to death and subjected to years of waiting on
death row for the sentence to be carried out, which was in the Court’s view
25
On which see further below, Chapter IV, Section 5.
26
Note also that the text of the relevant treaties is quite clear that it is the individual, rather than the
state agent affecting his rights, who has to be within, under, or subject to the state’s jurisdiction.
27
On this issue, see particularly K. Mujezinovic Larsen, ‘“Territorial Non-Application” of the
European Convention on Human Rights’, (2009) 78 Nord. J. Int’l L. 73.
28
See further below, Chapter III, Section 3.
29
Soering v. United Kingdom, App. No. 14038/88, Judgment, 7 July 1989.
Introduction 9
tantamount to inhuman treatment.30 Such cases do not involve extraterritorial

application, since the individual concerned is located within the territory of the
extraditing state. As the European Court itself said in Bankovic:
However, the Court notes that liability is incurred in such cases by an action of the
respondent State concerning a person while he or she is on its territory, clearly within its
jurisdiction, and that such cases do not concern the actual exercise of a State’s competence or
jurisdiction abroad.31
The violation in such cases is not the inhuman treatment that the individual would
suffer in the state seeking extradition—after all, the US is not even a party to the
ECHR, and is incapable of violating it—but the decision of the extraditing state to
actually proceed with the extradition, while being aware of the risk that the
individual will be subjected to inhuman treatment.32 The violation, in other
words, consists of the state knowingly exposing an individual to harm at the
hands of third parties, intra- or extraterritorially, even though the harm itself may
or may not materialize.33 Note that a Soering-type scenario can arise in an extrater-
ritorial context—for example, with the transfer of detainees held by the US or UK
in Iraq to Iraqi authorities—but only then would such a scenario be one of
extraterritorial application.34
3. The Law of Treaties Provides No General Answer
Having explored what is meant by the extraterritorial application of human rights

treaties, it is necessary to establish whether public international law has something
30
Similarly, see Judge v. Canada, UN Doc. CCPR/C/78/D/829/1998, 5 August 2002 and Kindler
v. Canada, UN Doc. CCPR/C/48/D/470/1991, 11 November 1993.
31
Bankovic, para. 68.
32
See also Gondek, at 6; M. Nowak, ‘Obligation of States to Prevent and Prohibit Torture in an
Extraterritorial Perspective,’ in Gibney and Skogley, above note 11, 11, at 19; Nowak, above note 14,
at 861–2; D. McGoldrick, ‘Extraterritorial Application of the International Covenant on Civil and
Political Rights’, in Coomans and Kamminga 41, at 52–3; M. O’Boyle, ‘The European Convention on
Human Rights and Extraterritorial Jurisdiction: A Comment on “Life After Bankovic”’, in Coomans
and Kamminga 125, at 126–7.
33
A commentator suggests that it is the extraterritorial harm that would itself be a violation of the
ECHR, because of the prior territorial connection to the extraditing state: ‘if a signatory state managed
to expel an individual without establishing a sufficient certainty that he would not be subject to torture
or cruel, inhuman, or degrading treatment and he proceeded to suffer such harms at the hand of the
receiving country’s authorities, the individual would still be “within the jurisdiction” of the Conven-
tion for the purposes of Article 1’—see S. Miller, ‘Revisiting Extraterritorial Jurisdiction: A Territorial
Justification for Extraterritorial Jurisdiction under the European Convention’, (2010) 20 EJIL 1223, at
1243. But this is simply not what the Court said in Soering, where it quite clearly considered the
extraterritorial harm subsequent to extradition to be ‘outside the jurisdiction’ of the extraditing state—
see Soering, paras 85 and 86. See also Kindler, para. 13.1: ‘If a State party extradites a person within its
jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the
Covenant will be violated in another jurisdiction, the State party itself may be in violation of the
Covenant’ (emphasis added).
34
Extraterritorial non-refoulement is also implicated in the ‘war on terror’ practice of so-called
extraordinary renditions—see generally M. Satterthwaite, ‘Rendered Meaningless: Extraordinary Ren-
dition and the Rule of Law’, (2007) 75 Geo. Wash. L. Rev. 1333.
to say about the extraterritorial application of treaties generally. It has been
suggested in that regard that Article 29 VCLT, which reads ‘unless a different
intention appears from the treaty or is otherwise established, a treaty is binding
upon each party in respect of its entire territory’, creates a presumption against
extraterritoriality.35
This argument is unfounded. Article 29 VCLT deals with a specific problem—
treaty-making by federal states or states with overseas dependencies—and creates a
presumption in favour of the applicability of the treaty to the whole territory of the
state, i.e. to all geographical areas over which it has title, unless a contrary intention
is established.36 In order to rebut this presumption states have historically em-
ployed a variety of colonial or federal clauses in treaties that were meant to limit the
territorial scope of the treaties that they concluded—indeed, there is one such
colonial clause in Article 56 ECHR, which I will address in more detail below. Not
only is there a considerable logical and linguistic leap in interpreting Article 29
VCLT as saying that a treaty binds a state party in respect of nothing but its entire
territory, but the ILC commentaries to Article 25 of the Draft Articles on the Law
of Treaties, which with a slightly different formulation became Article 29 VCLT,
make it clear that this provision has nothing to say on the extraterritorial application
of treaties:
In [the ILC’s] view, the law regarding the extra-territorial application of treaties could not be
stated simply in terms of the intention of the parties or of a presumption as to their
intention; and it considered that to attempt to deal with all the delicate problems of
extra-territorial competence in the present article would be inappropriate and inadvisable.37
There is no default rule of international law, no presumption against extraterritori-
ality which we can turn to in the absence of a clear norm in the treaty itself
regulating its extraterritorial applicability. Conversely, there is also no presumption
in favour of extraterritoriality.38 The only guidance can be found in the text, object,
35
This was, for instance, the position of the Russian Federation before the ICJ with regard to the
extraterritorial application of the CERD—see Case concerning Application of the International Conven-
tion on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia), CR 2008/23, available
at <http://www.icj-cij.org/docket/files/140/14713.pdf>, at 39 et seq. Israel espoused the same inter-
pretation with regard to the occupied Palestinian territories—see O. Ben-Naftali and Y. Shany, ‘Living
in Denial: The Application of Human Rights Treaties in the Occupied Territories’, (2003) 37 Israel
L Rev 17, at 66–8.
36
See generally A. Aust, ‘Treaties, Territorial Application’, in Max Planck Encyclopedia of Public
International Law, available at <http://www.mpepil.com>, and the sources cited therein.
37
ILC, above note 24, at 214.
38
The ICJ’s somewhat expansive dictum in its provisional measures order in Georgia v. Russia that,
absent a textual limitation, the ‘provisions of CERD generally appear to apply, like other provisions of
instruments of that nature, to the actions of a State party when it acts beyond its territory’ should not
be interpreted to say otherwise—see Order on the Indication of Provisional Measures, 12 October
2008, para. 109. As the Court rightly notes, it is the nature of human rights treaties, their foundation in
universality, that requires a justification for a territorial limit on their scope, but as a consequence of
their object and purpose, not of some kind of formal presumption. See Chapter III below; see also Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
9 July 2004, ICJ Reports 2004, at 136, para. 109, and see further below, Chapter III, Section 2. For
further comment on the Court’s order, see T. Thienel, ‘Provisional Measures in the “Case concerning
Application of the International Convention on the Elimination of All Forms of Racial Discrimination”
Introduction 11
and purpose of each particular treaty.39 In that regard, provisions governing the
territorial scope of human treaties can be classified in several broad, yet flexible and
overlapping categories.
4. Basic Normative Framework
A. Jurisdiction clauses
The first, and most interesting, of these are treaties containing a jurisdiction clause.
The first human rights treaties proper—though actually not the first treaties
generally40—to have such a clause are the ECHR and the ICCPR. Though these
two treaties were for the most part drafted over the same period, the ECHR was
adopted more than fifteen years before the ICCPR, since, as is well known, due to
ideological differences states were unable to agree on a comprehensive UN human
rights convention protecting both civil and political and socio-economic rights.
Article 1 ECHR contains the prototype jurisdiction clause: ‘The High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms
defined in Section I of this Convention’ (emphasis added).
Though this phrase is repeated in many treaties, no two jurisdiction clauses are
exactly alike. The wording of Article 2(1) ICCPR differs significantly from that of
the ECHR: ‘Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status’ (emphasis added)—the key difference here being the
seemingly conjunctive territorial requirement (‘within its territory’) which is missing
from Article 1 ECHR and from other human rights treaties, including the Second
Optional Protocol to the ICCPR abolishing the death penalty,41 and which the
Human Rights Committee has interpreted disjunctively.42 Article 7 of the Migrants
Workers Convention is the only treaty provision which uses the ICCPR formula,
but with the ‘and’ from Article 2(1) ICCPR explicitly turned into an ‘or’.43
(Georgia v. Russian Federation)’, (2009) 1 Goettingen JIL 143, esp. at 148–52; T. Thienel, ‘The
Georgian Conflict, Racial Discrimination and the ICJ: The Order on Provisional Measures of 15
October 2008’, (2009) 9 HRLR 465, esp. at 469–72.
39
See also Gondek, at 11.
40
See below, Chapter II, Section 2.E.
41
Article 1 of which reads: ‘1. No one within the jurisdiction of a State Party to the present
Protocol shall be executed. 2. Each State Party shall take all necessary measures to abolish the death
penalty within its jurisdiction.’
42
See Human Rights Committee, General Comment 31, Nature of the General Legal Obligation
on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 11. For a more
extensive discussion of Art. 2(1), see Chapter IV, Section 5 below.
43
‘States Parties undertake, in accordance with the international instruments concerning human
rights, to respect and to ensure to all migrant workers and members of their families within their
territory or subject to their jurisdiction the rights provided for in the present Convention.’
Unlike the ICCPR, the American Convention on Human Rights (ACHR)44 and
the UN Convention on the Rights of the Child (CRC)45 alter the ECHR jurisdic-
tion formula only slightly, but like the ICCPR, they do so with the addition of a
non-discrimination clause.
Other treaties have jurisdiction clauses only in respect of specific obligations
arising under the treaty, instead of a single applicability clause for the treaty as a
whole. The first of these treaties was the 1969 Convention on the Elimination of
All Forms of Racial Discrimination (CERD), which provides in its Article 3 that
‘States Parties particularly condemn racial segregation and apartheid and undertake
to prevent, prohibit and eradicate all practices of this nature in territories under
their jurisdiction’. The only other provisions of the CERD with a similar jurisdic-
tion clause are Article 6, which guarantees the right to an effective remedy against
racial discrimination, and Article 14, which regulates the submission of individual
petitions to the CERD Committee. No other provision of the CERD, particularly
Articles 2 and 5 which protect a wide range of substantive rights, has any sort of
territorial limitation.
This particular approach is found in several other treaties.46 The most developed
example of this type is the Convention against Torture (CAT), which contains no
less than nine jurisdiction clauses (in Articles 2(1), 5(1)(a), 5(2),47 7(1), 11, 12, 13,
16, and 22(1)), with the obligations of a contracting state under these articles
generally being confined to ‘any territory under its jurisdiction’.
The final type of jurisdiction clause is the one which deals exclusively with the
scope of application of the supervisory mechanism under a particular treaty, most
notably with the competence of a treaty body to examine individual petitions. Such
clauses can either be found in the treaty itself, as in Article 14 CERD and Article 22(1)
CAT, or in a supplementary protocol to the treaty, as with Article 1 of the
(First) Optional Protocol to the ICCPR. A variation on this type of jurisdiction
clause can be found in treaties for the prevention of torture which create special
inspection mechanisms. For instance, Article 4(1) of the Optional Protocol to the
CAT stipulates that ‘[e]ach State Party shall allow visits, in accordance with the
present Protocol, by the mechanisms referred to in articles 2 and 3 to any place
44
Art. 1(1) of which reads: ‘The States Parties to this Convention undertake to respect the rights
and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and
full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex,
language, religion, political or other opinion, national or social origin, economic status, birth, or any
other social condition.’
45
Art. 2(1) of which reads: ‘States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any kind, irrespective of
the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability, birth or other status.’
46
See Arts I, IV, VI, Inter-American Convention on Forced Disappearance of Persons; Arts 9, 11,
31, 34, International Convention for the Protection of All Persons from Enforced Disappearance; Arts
6(1), 6(3), 8(1), 8(2), 12, 14, Inter-American Convention to Prevent and Punish Torture.
47
Art. 5 of the CAT uses several different notions of ‘jurisdiction’. The difference between these
will be analysed in Chapter II, Section 2 below.
Introduction 13
under its jurisdiction and control where persons are or may be deprived of their
liberty’ (emphasis added).48
It is important to note that this type of jurisdiction clause is distinct in that it
does not affect the scope of state obligations under a treaty, but creates a standalone
condition for admissibility. The territorial scope of the principal treaty in question
is independent from such provisions. For instance, as we have seen, state obliga-
tions under Article 2(1) of the ICCPR extend to all individuals ‘within its territory
and subject to its jurisdiction’, while Article 1 of the Optional Protocol to the ICCPR
provides that ‘[a] State Party to the Covenant that becomes a Party to the present
Protocol recognizes the competence of the Committee to receive and consider
communications from individuals subject to its jurisdiction who claim to be victims
of a violation by that State Party of any of the rights set forth in the Covenant’.
The latter provision omits the arguably more restrictive territorial requirement
from Article 2(1) ICCPR, but that does not mean that it extends the applicability
of the ICCPR itself.49 On the other hand, the Convention for the Elimination of
Discrimination against Women (CEDAW) has no jurisdiction clause whatsoever
limiting its scope of application, yet Article 2 of the Optional Protocol to the
CEDAW provides that communications to the CERD Committee ‘may be sub-
mitted by or on behalf of individuals or groups of individuals, under the jurisdic-
tion of a State Party’. Accordingly, with regard to this particular treaty, its scope of
application is not limited by a jurisdiction clause, yet the right to individual petition
under the treaty is.
B. Treaties with dedicated provisions on territorial application

Though human rights treaties with one sort of jurisdiction clause or another are by
far the most common, there are also a few with dedicated provisions governing their
territorial application. As a general matter, these provisions have little or nothing to
say about the extra-territorial application of a treaty, but are meant to address the
two specific problems that we have already seen with respect to Article 29 VCLT:
the application of the treaty to a state’s colonies and dependencies, or, euphemisti-
cally, ‘territories for whose international relations it is responsible’, on the one
hand, and the application of the treaty to a state with several autonomous or federal
territorial units, usually with the purpose of limiting the federal state’s liability, on
the other. Both of these two types of provisions—colonial and federal clauses—are
common in treaty practice.
Since colonies are historically primarily a European problem, it makes sense that
only European human rights treaties have colonial clauses. Certain European states
wished to retain the option of not applying the specific human rights treaty to their
dependent territories, and they had the negotiating power to push for the inclusion
48
See also Arts 2 and 14, European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment.
49
See also McGoldrick, above note 32, at 43–4, 49.
of a colonial clause. The prototype colonial clause can be found in Article 56
ECHR:50
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, subject to paragraph 4 of this Article, extend to all or any of
the territories for whose international relations it is responsible.
2. The Convention shall extend to the territory or territories named in the notification as
from the thirtieth day after the receipt of this notification by the Secretary General of
the Council of Europe.
3. The provisions of this Convention shall be applied in such territories with due regard,
however, to local requirements.
4. Any State which has made a declaration in accordance with paragraph 1 of this article
may at any time thereafter declare on behalf of one or more of the territories to which
the declaration relates that it accepts the competence of the Court to receive applica-
tions from individuals, non-governmental organisations or groups of individuals as
provided by Article 34 of the Convention.
As explained by Moor and Simpson in a masterful article, the colonial clause was
inserted into the ECHR due to the insistence of the British government, which
professed that it could not extend the application of the Convention to its overseas
territories without consulting the governments of these respective territories and
obtaining their consent. Thus, the principal justification for the colonial clause is
the colonial power’s respect for local self-governance in its colonies. The subtext of
this explanation, however, was that some circles within the British government,
especially the Colonial Office, were reluctant to extend the ECHR’s many human
rights protections to large swathes of its yet to be dismantled colonial empire,
particularly when it came to the right of individual petition to the European
Court.51
A colonial clause can be found in every European human rights treaty, including
the protocols to the major treaties which add further substantive rights, as well as in
a large number of other treaties concluded under the auspices of the Council of
Europe. The clause in Article 56 ECHR has been reproduced in the territorial
applicability clauses of Protocols No. 1 and No. 4 to the Convention, in Articles 4
and 5 respectively, which, however, add another twist. They allow the states parties
not only to specify to which territories, for whose international relations the states
are responsible, the protocols will apply, but also to what extent they will apply.
In other words, the states parties were given the freedom to pick and choose
the provisions of the two additional protocols that they will apply in their
colonies—which makes perfect sense when one considers the provisions of Protocol
50
Art. 63 before the amendments introduced by Protocol No. 11.
See L. Moor and A.W.B. Simpson, ‘Ghosts of Colonialism in the European Convention on
51
Human Rights’, (2006) 76 BYIL 121, at 136–58.

Introduction 15
No. 1 which guarantee basic democratic rights, and the reluctance of colonial states
to extend such rights to their overseas dominions.
The colonial clauses in other Council of Europe treaties differ from that of the
ECHR and Protocols No. 1 and No. 4 thereto and indeed vary greatly among
themselves. For example, Article 2 of the 1953 European Convention on Social and
Medical Assistance provides that it will apply to the territory of the contracting
parties, and that they may define this territory in a subsequent declaration.52 On
the other hand, the 1955 European Convention on Establishment was originally
meant to apply to the metropolitan territories of states parties alone, but in the final
stages of drafting it was decided to give the states parties the option of extending
the applicability of the treaty to their colonies.53 This same solution was adopted in
Article L (former Article 34) of the European Social Charter, and several other
treaties.54
In 1980 the Council of Ministers of the Council of Europe adopted the Model
Final Clauses for conventions and agreements concluded within the Council.55
When it comes to territorial applicability, model clause (d) deleted any reference to
embarrassing anachronisms such as metropolitan territories, colonies, and terri-
tories for whose international relations a state is responsible, by providing that
‘[a]ny State may at the time of signature or when depositing its instrument of
ratification, acceptance, approval or accession, specify the territory or territories to
which [the treaty] shall apply’. This clause has been employed in subsequent
treaties, including Protocols Nos 6, 7, 12, and 13 to the ECHR and the European
Convention for the Prevention of Torture.
What then is the relationship between, for example, the colonial clause in Article
56 ECHR and the ECHR’s jurisdiction clause in its Article 1? The first possible
reading would be that Article 56 allows for the extension of the ECHR to territories
which the states parties did not consider to be ‘within their jurisdiction’ pursuant to
Article 1—most of all those territories belonging to the category of protected states.
The second possible reading is that, on the contrary, Article 56 allows states to
exclude the applicability of the ECHR to territories which are most certainly within
their jurisdiction for the purposes of Article 1. Finally, the third possible reading is
that Article 56 allows for both of the previous possibilities, i.e. that it can be used by
states both to extend the applicability of the ECHR to a territory to which it would
not normally apply, and to exclude the ECHR’s applicability to territories to which
it would otherwise apply.56
There is little in the travaux préparatoires to the ECHR that indicates which of
these three readings the states parties favoured, or whether they even considered the
52
See at <http://conventions.coe.int/Treaty/en/Treaties/Html/014-IV.htm>.
53
See the Explanatory Report to this treaty, available at <http://conventions.coe.int/Treaty/en/
Reports/Html/019.htm>, para. 86.
54
See, e.g., Art. 27 of the European Convention on Extradition; Art. 80 of the European Code of
Social Security.
55
Model Final Clauses for Conventions and Agreements concluded within the Council of Europe,
as adopted by the Committee of Ministers of the Council of Europe at its 384th meeting, in February
1980, available at <http://conventions.coe.int/Treaty/EN/Treaties/Html/ClausesFinales.htm>.
56
Moor and Simpson, above note 51, at 126–32.
relationship between the jurisdiction clause and the colonial clause. This relation-
ship has furthermore never been definitively clarified by the European Court.
However, the second reading does seem the most plausible, as evidenced by the
subsequent practice of the colonial powers, as well as by the general treaty practice
within the Council of Europe and most of the case law, though the third reading is
not to be excluded. The colonial clauses in European treaties appear to be designed
to give the contracting states the freedom to designate those parts of their own
territories to which the treaties will apply, thereby avoiding the presumption in
favour of territorial application to all of the territories of a state party stipulated
in Article 29 of the VCLT.57 Indeed, internal memoranda of the British govern-
ment show that this presumption, which was at the time yet to be codified in the
VCLT but was considered by the British to be a customary rule, was the primary
reason for the British insistence on inserting a colonial clause into the ECHR and
all subsequent treaties.58
There is some contradiction between the inclusion of colonial clauses into some
human rights treaties and the case law on their extraterritorial application developed
by the relevant supervisory bodies. For instance, per a ruling of the European Court,
Turkey must apply the ECHR to the area of northern Cyprus which it occupied, as
it falls ‘within its jurisdiction’ under Article 1 ECHR. However, the United
Kingdom can choose, pursuant to Article 56 ECHR, whether or not to apply the
ECHR to the Isle of Man, the Falklands, or some of its other dependencies which it
in fact controls entirely as a sovereign and over which its jurisdiction (whatever
‘jurisdiction’ might exactly mean) is exclusive and has lasted for centuries.59
Non-European human rights treaties do not contain any colonial clauses due to
the unease that other states, among them mainly former colonies, have had with
such relics of European imperialism. Nonetheless, colonial states, particularly the
United Kingdom, have used reservations or interpretative declarations, for instance
with the ICCPR, in order to limit their obligations in relation to some of their
dependencies.60
57
See also P. van Dijk et al., Theory and Practice of the European Convention on Human Rights
(Intersentia, 4th edn, 2006), at 17–18.
58
Moor and Simpson, above note 51, at 151–2.
59
See Thanh v. United Kingdom (dec.), App. No. 16137/90, 12 March 1990, in which the
Commission declared inadmissible a Soering-type case filed by a detainee who was to be returned to
Vietnam from Hong Kong, on the grounds that the UK has not extended the Convention to Hong
Kong under then Art. 63 ECHR. See also Yonghong v. Portugal (dec.), App. No. 50887/99, 25
November 1999, in which the Court declared inadmissible a similar case dealing with Portugal and
Macao; R. (Quark Fishing Ltd) v. Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL
57, [2006] 1 AC 529, where the House of Lords held that no claim could arise under Art. 1 of Protocol
No. 1 for a violation in a British dependency when that Protocol was not extended to it by a
declaration, a ruling affirmed by the European Court in Quark Fishing Ltd v. United Kingdom
(dec.), App. No. 15305/06, 19 September 2006; as well as R. (Bancoult) v. Secretary of State for Foreign
and Commonwealth Affairs [2008] UKHL 61, [2009] 1 AC 453, where the House of Lords held that
the Chagos Islanders expelled from their islands by the UK in order to make room for a US military
base had no ECHR rights since the UK declaration extending the ECHR to Mauritius, of which the
islands once formed part, lapsed with the independence of Mauritius.
60
See at <http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=
4&lang=en>.
Introduction 17
Human rights treaties also generally disfavour federal clauses, which would have the
purpose of limiting the responsibility of a federal state in matters which belong to the
jurisdiction of its constituent units. Indeed, the ICCPR in its Article 50 explicitly
states that its provisions ‘shall extend to all parts of federal States without any
limitations or exceptions’. The only human rights treaty proper to have such a clause
is the ACHR, in its Article 28, though states can still employ reservations to limit their
responsibility.61
C. Treaties with no provisions on territorial application

Finally, there are those treaties which have no jurisdiction clause, nor any other
clause defining their territorial scope of application. The first such universal human
rights treaty was the Convention against Discrimination in Education, while the
most notable are the International Covenant on Economic, Social and Cultural
Rights (ICESCR) and the Convention on the Elimination of All Forms of Dis-
crimination Against Women (CEDAW), as well as the recent Convention on the
Rights of Persons with Disabilities. The application of these treaties, at least at first
glance, is consequently neither confined to the territory of a state party nor to the
territories or persons over which the state party has jurisdiction. It should be noted,
however, that the optional protocols to the last two treaties, as well as the Optional
Protocol to the ICESCR, do indeed contain a jurisdiction clause limiting the right
to individual petition. Moreover, the ICESCR does indeed contain a sort of a
jurisdiction clause for one specific right in its Article 14, which stipulates that
[e]ach State Party to the present Covenant which, at the time of becoming a Party, has not been
able to secure in its metropolitan territory or other territories under its jurisdiction compulsory
primary education, free of charge, undertakes, within two years, to work out and adopt a
detailed plan of action for the progressive implementation, within a reasonable number of years,
to be fixed in the plan, of the principle of compulsory education free of charge for all.
Of the regional treaties, there is no jurisdiction clause to be found in the African
Charter on Human and Peoples’ Rights, or in the Inter-American Convention on
the Prevention, Punishment and Eradication of Violence Against Women.
D. Concluding remarks
As we have seen, in some of the most important human rights treaties, especially
those protecting civil and political rights, it is the jurisdiction clauses which
determine their scope of application. There are no such clauses in humanitarian
law treaties, for example. Common Article 1 of the 1949 Geneva Conventions
provides that ‘the High Contracting Parties undertake to respect and to ensure
61
The permissibility of such reservations is beyond the scope of this study. For an account of the
intense debates regarding the inclusion of a federal clause, pushed for by the United States, and of a
colonial clause, pushed for by the United Kingdom, into the then single International Covenant, see
B. Simpson, Human Rights and the End of Empire (Oxford University Press, 2004), at 470 et seq.
respect for the present Convention in all circumstances (emphasis added)’. It is after
all only natural that treaties which protect certain categories of persons in times
of armed conflict are not territorially confined. Indeed, some parts of the law of
armed conflict, namely the law of belligerent occupation, apply only extraterritorially,
as a state by definition cannot occupy its own territory.62
Finally, it should also be noted that the provisions defining the scope of
applicability of human rights treaties frequently differentiate between two kinds
of state obligations. On the one hand, there is the negative obligation of contracting
states to respect the human rights of persons within their jurisdiction, which
commands states to refrain from acts capable of violating the rights of individuals.
On the other, there is the positive obligation to secure or ensure the respect of their
rights, which requires states to take various steps to fulfil and protect the rights of
individuals, even from third parties.63 These two sets of obligations were first
distinguished in a French proposal during the drafting of the then single Interna-
tional Covenant, by which the words ‘respect and’ were inserted between the words
‘undertake to’ and ‘ensure’ in what was to become Article 2(1) of the ICCPR and
the ICESCR.64 This approach was then followed in numerous other human rights
treaties, including the ACHR and the CRC, while a similar phrase can be found in
Common Article 1 of the Geneva Conventions, cited above.
What is the relevance of the distinction between negative and positive state
obligations to the question of extraterritorial application of human rights treaties?
Simply put, the ability of a state to comply with—or violate—these obligations is
different, since a state needs little by way of means in order to violate a negative
obligation, while the state’s agents are by definition under its control. On the other
hand, a state needs actual or effective control over a territory or a population in
order to be able to fulfil its positive obligations. For example, on the facts of the
Bankovic case before the European Court, it could certainly be said that the NATO
countries bombing Serbia had the power to (dis)respect the right to life of the
inhabitants of Serbia, but could hardly be said to have had the power to secure that
right to life from violation by private parties, as they were not in control of Serbia as
such. It is surprising that this distinction has had such a remarkably small role to
play in the jurisprudence on the extraterritorial application of human rights treaties,
as we shall see, even though it could have major implications.65 Moreover, the
distinction between positive and negative obligations under human rights treaties
can also be of help in distinguishing between the concept of state jurisdiction and
that of state responsibility, as will be shown in the following chapter of this study.
62
One the other hand, Common Article 3 might be seen as imposing a territorial limitation when it
speaks of ‘armed conflict not of an international character occurring in the territory of one of the High
Contracting Parties’, an issue of great practical relevance to the qualification of ‘spill-over’ internal
armed conflicts.
63
See generally Nowak, above note 14, at 37–41.
64
See UN Doc. E/CN.4/365, at 16.
65
See Chapter IV, Section 4 below.
II
From Compromise to Principle
1. A Threshold Criterion: Jurisdiction of a State, Not the

Jurisdiction of a Court
The purpose of this chapter will be to unravel and clarify the notion of state
jurisdiction found in the various applicability clauses of human rights treaties. As
will be seen, the chief problem arising from the use of the word ‘jurisdiction’ is that
it has several meanings. A number of concepts hide themselves behind this single
word, and its different meanings contribute to the confusion found both in the
jurisprudence and in academic commentary.
The first point of misunderstanding that needs to be dealt with is almost trivial,
but it is quite bewildering to see how often it surfaces.1 The notion of ‘jurisdiction’
in human rights treaties refers to the jurisdiction of a state, not to the jurisdiction of
a court, even though this latter use of the word is otherwise the most frequent. This
is readily apparent from the text of the relevant treaties. For instance, according to
Article 1 ECHR, ‘[t]he High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section I of this Convention’;
under Article 2(1) of the ICCPR ‘[e]ach State Party to the present Covenant
undertakes to respect and to ensure to all individuals within its territory and subject
to its jurisdiction the rights recognized in the present Covenant’, while Article 2(1)
UNCAT provides that ‘[e]ach State Party shall take effective legislative, adminis-
trative, judicial or other measures to prevent acts of torture in any territory under its
jurisdiction’.
There is no doubt that the word ‘jurisdiction’ in all of these clauses refers to the
states parties to the treaty, not to the court or other supervisory body established by
the treaty. It is a threshold criterion, which must be satisfied in order for the treaty
obligations (at least some of them) to arise in the first place.2 In this way human
rights treaties resemble humanitarian law treaties, which also have a trigger for their
1
See, e.g., G. Ress, ‘Problems of Extraterritorial Human Rights Violations: The Jurisdiction of the
European Court of Human Rights: the Bankovic case’, (2002) 12 Italian YB Int’l L. 51; J. Ross,
‘Jurisdictional Aspects of International Human Rights and Humanitarian Law in the War on Terror’,
in Coomans and Kamminga 9, at 23–4; E.C. Gillard, ‘International Humanitarian Law and Extrater-
ritorial State Conduct, in Coomans and Kamminga 25, at 37; M. Happold, ‘Bankovic v. Belgium and
the Territorial Scope of the European Convention on Human Rights’, (2003) 3 HRLR 77, at 82–4.
2
See M. O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction:
A Comment on “Life After Bankovic”’, in Coomans and Kamminga 125.
application—the existence of either an international or a non-international armed
conflict.3 In the same sense in which states have no IHL obligations if they are not
engaged in armed conflict,4 they arguably have no treaty obligations to secure or
ensure human rights if they do not have jurisdiction over a person, if the treaty in
question has a jurisdiction clause.
Of course, if a particular human rights treaty does not apply in the absence of a
state’s jurisdiction, this would automatically lead to the treaty body in question
lacking jurisdiction ratione materiae, in the same way that the treaty body would
lose jurisdiction ratione personae if it found that the wrongful act complained of was
not attributable to the defendant state.5 In other words, since the subject-matter
jurisdiction of the European Court or of the Human Rights Committee is limited
to interpreting and applying the ECHR and the ICCPR, respectively, they will
invariably lack jurisdiction if the treaty itself does not apply. Nonetheless, it is not
their jurisdiction which is the object of inquiry for the purposes of Article 1 ECHR
or Article 2(1) ICCPR.
Moreover, even though the issue of state jurisdiction is by its nature preliminary
and may (but need not) be resolved at the admissibility stage of the proceedings, it
is still not a simple, technical admissibility requirement,6 like that of the exhaustion
of effective domestic remedies, or the six-month rule. These admissibility require-
ments do not touch upon the substantive rights enshrined in a human rights treaty,
but are a matter of the court’s or treaty body’s own rules of procedure. For instance,
failing to exhaust domestic remedies, or filing an application after the expiration of
an admissibility deadline does not mean that the applicant does not have substan-
tive human rights under the treaty—it simply means that his or her rights are
unenforceable before the international body, either temporarily or permanently.
The only type of jurisdiction clauses that can conceivably be said to set out a
procedural admissibility requirement are those which deal only with the scope of
the competence of a treaty body to examine individual petitions, as in Article 14
CERD and Article 22(1) UNCAT, or the (First) Optional Protocol to the ICCPR.7
As explained above, these jurisdiction clauses are independent of the scope of
application of the human rights treaty itself and the substantive rights that it
enshrines. Only in that very limited procedural sense can one speak of jurisdiction
clauses as directly regulating the compatibility ratione personae or ratione loci of an
individual petition.8
3
See Common Articles 2 and 3 of the four Geneva Conventions of 1949; Article 1 of Additional
Protocol I of 1977; Article 1 of Additional Protocol II of 1977.
4
There are, of course, some IHL obligations which apply outside of armed conflict, most notably
during belligerent occupation, but also in peace time—see, e.g., Art. 127 of the Third Geneva
Convention.
5
See, e.g., Saddam Hussein v. Albania and others (dec.), App. No. 23276/04, 14 March 2006.
6
See M. Nowak, CCPR Commentary (Engel, 2nd revised edn, 2005), at 858–62.
7
See above Chapter I, Section 4.A.
8
See also D. McGoldrick, ‘Extraterritorial Application of the International Covenant on Civil and
Political Rights’, in Coomans and Kamminga 41, at 43–4.
From Compromise to Principle 21
2. Jurisdiction’s Many Meanings
A. A spurious assumption
In their case law on the extraterritorial application of human rights treaties, the
European Court of Human Rights and to a lesser extent the International Court of
Justice proceeded from the assumption that the concept of ‘jurisdiction’ in human
rights treaties is the same concept of jurisdiction which exists in general interna-
tional law. The European Court, moreover, drew major inferences from this
approach. For example, the Court started off its discussion in Bankovic with the
quite correct, and for a human rights body admirable, sentiment that the ECHR is
to be interpreted in accordance with the general rules of treaty interpretation laid
down in the VCLT, Article 31(3)(c) of which requires the Court to take into
account ‘any relevant rules of international law applicable in the relations between
the parties’. According to the Court, ‘[t]he Convention should be interpreted as far
as possible in harmony with other principles of international law of which it forms
part’.9 Nothing to quibble with there—but then the Court proceeds to say the
following:
As to the ‘ordinary meaning’ of the relevant term in Article 1 of the Convention, the Court
is satisfied that, from the standpoint of public international law, the jurisdictional compe-
tence of a State is primarily territorial. While international law does not exclude a State’s
exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including
nationality, flag, diplomatic and consular relations, effect, protection, passive personality
and universality) are, as a general rule, defined and limited by the sovereign territorial rights
of the other relevant States (Mann, ‘The Doctrine of Jurisdiction in International Law’, RdC,
1964, Vol. 1; Mann, ‘The Doctrine of Jurisdiction in International Law, Twenty Years Later’,
RdC, 1984, Vol. 1; Bernhardt, Encyclopaedia of Public International Law, Edition 1997,
Vol. 3, pp. 55–59 ‘Jurisdiction of States’ and Edition 1995, Vol. 2, pp. 337–343 ‘Extra-
territorial Effects of Administrative, Judicial and Legislative Acts’; Oppenheim’s International
Law, 9th Edition 1992 (Jennings and Watts), Vol. 1, } 137; P.M. Dupuy, Droit Interna-
tional Public, 4th Edition 1998, p. 61; and Brownlie, Principles of International Law, 5th
Edition 1998, pp. 287, 301 and 312–314).
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
(Higgins, Problems and Process (1994), at p. 73; and Nguyen Quoc Dinh, Droit Internation-
al Public, 6th Edition 1999 (Daillier and Pellet), p. 500). In addition, a State may not
actually exercise jurisdiction on the territory of another without the latter’s consent,
invitation or acquiescence, unless the former is an occupying State in which case it can be
found to exercise jurisdiction in that territory, at least in certain respects (Bernhardt, cited
above, Vol. 3 at p. 59 and Vol. 2 at pp. 338–340; Oppenheim, cited above, at } 137; P.M.
Dupuy, cited above, at pp. 64–65; Brownlie, cited above, at p. 313; Cassese, International
Law, 2001, p. 89; and, most recently, the ‘Report on the Preferential Treatment of National
9
Bankovic and Others v. Belgium and Others [GC] (dec.), App. No. 52207/99, 12 December 2001,
para. 57.
Minorities by their Kin-States’ adopted by the Venice Commission at its 48th Plenary
Meeting, Venice, 19–20 October 2001).
The Court is of the view, therefore, that Article 1 of the Convention must be considered
to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of
jurisdiction being exceptional and requiring special justification in the particular circum-
stances of each case (see, mutatis mutandis and in general, Select Committee of Experts on
Extraterritorial Criminal Jurisdiction, European Committee on Crime Problems, Council
of Europe, ‘Extraterritorial Criminal Jurisdiction’, Report published in 1990, at pp. 8–30).10
There is little to be disputed with the first two paragraphs that I have quoted. It is
indeed true that, ‘from the standpoint of public international law, the jurisdictional
competence of a State is primarily territorial’—true, though a major oversimplifi-
cation, as the entire point of having a law of jurisdiction is precisely to regulate the
exceptions from territoriality, as we shall soon see. But, no matter—the Court’s
assessment is still essentially correct.
What is most certainly not correct is that what the Court said in the third quoted
paragraph flows from the previous two. The word ‘therefore’ in the first sentence of
this paragraph is nothing but a lead-up to a non sequitur, since it is based on the
assumption that the concept of ‘jurisdiction’ in Article 1 ECHR is the same concept
of jurisdiction as the one in general international law to which the Court refers. It is
from this assumption and from a furtive pseudo-recapitulation of its earlier case law
which it used to restate things that it had actually never said before,11 that the
Court drew its ultimate conclusion that
[i]n sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-
territorial jurisdiction by a Contracting State is exceptional: it has done so when the
respondent State, through the effective control of the relevant territory and its inhabitants
abroad as a consequence of military occupation or through the consent, invitation or
acquiescence of the Government of that territory, exercises all or some of the public powers
normally to be exercised by that Government.12
Not only is the assumption that the ‘jurisdiction’ from Article 1 ECHR is the same
jurisdiction as the one in general international law entirely unsupported by any-
thing produced by the Court, but, as will be shown, following that assumption to
its logical conclusion would mean accepting completely absurd results, indeed
results which would be in total contradiction with the Court’s own established
jurisprudence.
It seems that the ICJ also proceeded from this assumption in its Wall Advisory
Opinion, where it first laconically observed, without any analysis, that the ‘juris-
diction of states is primarily territorial’.13 However, unlike the European Court in
10
Bankovic, paras 59–61.
11
See R. Lawson, ‘Life after Bankovic: On the Extraterritorial Application of the European
Convention on Human Rights’, in Coomans and Kamminga 83, at 111, who well notes that the
Court silently added the reference to ‘public powers’ in the quotation that follows, which was never
mentioned in its previous case law.
12
Bankovic, para. 71.
13
Opinion, 9 July 2004, ICJ Reports 2004, para. 109.
Bankovic, the ICJ gave no special significance to this supposedly primarily territorial
notion of jurisdiction as warranting a restrictive approach to Article 2(1) ICCPR.
On the contrary, relying on the practice of the Human Rights Committee, the ICJ
found both the ICCPR and the ICESCR, as well as the CRC, applicable to the
occupied Palestinian territories.14
B. Jurisdiction in general international law

Before showing exactly why this assumption is mistaken, it is first necessary to
clearly establish what the concept of jurisdiction in general international law
actually is and what it does. For that one may as well rely, inter alia, on the various
sources cited by the European Court in Bankovic.
The definition of that notion of ‘jurisdiction’ to which the Court refers in
Bankovic is uncontroversial: that ‘jurisdiction’ is the authority of the state, based
in and limited by international law, to regulate the conduct of persons, both natural
and legal, by means of its own domestic law.15 In essence, a state’s jurisdiction is an
emanation or an aspect of its sovereignty, its right to regulate its own public order,
and limitations on it flow from the equal sovereignty of other states.16 That
‘jurisdiction’ in general international law is not a unitary concept, as it encompasses
at least two, and possibly three, distinct sets of powers.17 The first of these is the
jurisdiction to prescribe—also termed legislative jurisdiction or compétence norma-
tive—the state’s authority to make or prescribe legal rules. On the other hand, the
jurisdiction to enforce—executive jurisdiction or compétence d’exécution—is the
state’s authority to apply or enforce the rules that it has previously prescribed.
Finally, there is the state’s adjudicatory, curial, or judicial jurisdiction, which refers to
the power of its courts to settle legal disputes, though this type of jurisdiction may
safely be subsumed under the state’s prescriptive and enforcement jurisdiction.18
When a state promulgates a criminal statute making murder a crime, it exercises
its prescriptive jurisdiction. When the state authorities apprehend a murder sus-
pect, the state exercises its enforcement jurisdiction. When that suspect is brought
before a criminal court for trial, the state exercises its adjudicative jurisdiction.
Similarly, a state exercises its jurisdiction to prescribe when it passes an antitrust law
prohibiting excessive market concentration, while it exercises its enforcement
14
Ibid., paras 109–11.
15
See generally V. Lowe, ‘Jurisdiction’, in M. Evans (ed.), International Law (Oxford University
Press, 2nd edn, 2006), at 335; M. Shaw, International Law (Cambridge University Press, 6th edn,
2008), at 645; M. Akehurst, ‘Jurisdiction in International Law’, (1972–1973) 46 BYIL 145;
C. Ryngaert, Jurisdiction in International Law (Oxford University Press, 2008), at 5 et seq.
16
See, e.g., I. Brownlie, Principles of Public International Law (Oxford University Press, 6th edn,
2003), at 297; A. Cassese, International Law (Oxford University Press, 2nd edn, 2005), at 49.
17
See R. O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, (2004) 2 JICJ 735, at
736.
18
See Lowe, above note 15, at 338–9; Cassese, above note 16, at 49–51; Shaw, above note 15, at
649 et seq.; O’Keefe, above note 17, at 736–7; Restatement (Third) of the Foreign Relations Law of the
United States, s. 401.
jurisdiction when it actually dismembers or otherwise penalizes a company which
fails to abide by its antitrust regulations.
The distinction between the jurisdiction to prescribe and the jurisdiction to
enforce is not merely academic. The latter is regulated by a very simple rule: a state
may not exercise its enforcement jurisdiction on the territory of another state,
absent that state’s consent.19 An example of an unlawful exercise of enforcement
jurisdiction by a state would be the abduction of Adolf Eichmann, one of the chief
organizers of the Holocaust, by Israeli security agents on Argentine soil and without
the consent of the Argentine government.20 Lawful examples would be the consular
jurisdiction of states over their nationals abroad, or jurisdiction over military
personnel in overseas bases, both of which are grounded in the consent of the
territorial state.
Prescriptive jurisdiction, on the other hand, is also territorial, in the sense that a
state by definition has the prerogative to legislate for persons present in its own
territory.21 A national of the United States who visits the United Kingdom is
subject to the laws of the United Kingdom, and vice versa. However, as stated
above, it is in some ways deeply misleading to think of prescriptive jurisdiction as
being primarily territorial. Even though the vast majority of situations and relation-
ships that a state will seek to regulate will take place in its own territory, it still may
exercise its prescriptive jurisdiction extraterritorially and may do so without the
consent of other states.22
Indeed, practically the entirety of the law of (prescriptive) jurisdiction is about
the exceptions to territoriality. If particular conduct that the state seeks to regulate is
taking place outside its territory (including therein its territorial sea, as well as ships
and airplanes flying its flag),23 it may nonetheless regulate it if there is an additional
basis for its jurisdiction, a connecting factor.24 There are several bases of prescrip-
tive jurisdiction that are generally recognized in international law and these were
enumerated by the European Court in Bankovic:25 the nationality (or active
personality) principle, according to which a state may regulate the conduct of its
nationals, even when they are abroad; the passive personality principle, according to
which a state may, within certain limits, prohibit conduct which directly harms its
nationals, even if the perpetrator of the harm is not its national and the conduct
takes place outside its territory; the protective principle, according to which a state
19
See Cassese, above note 16, at 50; Lowe, above note 15, at 338; O’Keefe, above note 17,
at 740; Ryngaert, above note 15, at 9–10.
20
This action was unanimously condemned by the UN Security Council, in Resolution 138
(1960). See also Shaw, above note 15, at 651; Lowe, above note 15, at 357; J.E.S. Fawcett, ‘The
Eichmann Case’, (1962) 38 BYIL 181.
21
Brownlie, above note 16, at 297.
22
For examples of extraterritorial prescriptive jurisdiction in fields as diverse as antitrust, taxation,
and environmental law, see generally the contributions in K. Meessen (ed.), Extraterritorial Jurisdiction
in Theory and Practice (Kluwer, 1996).
23
Though this is not to say, of course, that ships and airplanes are floating and flying pieces, respectively,
of the state’s own territory.
24
Lowe, above note 15, at 342.
25
Bankovic, para. 59.
may punish persons who seek to harm its most vital interests—for example, persons
plotting to forge its currency; the universality principle, according to which the
state may criminalize conduct without any direct connection to it if that conduct
harms the international community as a whole, such as piracy and crimes against
international law.26 Certain states have also asserted more controversial bases for
jurisdiction—though passive personality and universal jurisdiction have also had
their share of controversies. The most notable case is that of the United States,
which extended the application of its antitrust laws to intentional conduct which
produces economic effects within the territory of the United States.27
All of these principles concern the extraterritorial exercise of prescriptive juris-
diction, which these days can hardly be said to be truly exceptional. All states do it
all the time. Moreover, none of these principles is necessarily subordinate to
another, nor is the territorial principle at the apex of some sort of jurisdictional
hierarchy. State jurisdictions can and do overlap, and more than one system of
municipal law can apply to the same conduct or situation. It is therefore somewhat
strange that the European Court in Bankovic does not differentiate at all between
prescriptive and enforcement jurisdiction when it claims that Article 1 ECHR
embodies the notion of jurisdiction from general international law, seemingly
implying that the former is subject to equally stringent conditions as the latter,
when it most certainly is not.28
It is also important to note that the jurisdiction to enforce is necessarily the
actualization of a previously made prescription, an assertion that a particular rule of
municipal law applies to a concrete situation at hand and that this law is to be
enforced.29 Moreover, a state may lawfully extend its prescriptive jurisdiction, only
to unlawfully attempt to enforce it, and vice versa. For example, a state can tax its
nationals even when they are abroad, but it must not attempt to seize any of their
assets located outside its territory without the consent of the territorial state. If it did
so, it would have engaged in an exorbitant exercise of its jurisdiction to enforce,
which would have violated the territorial state’s sovereignty. Or, a state might arrest
a foreign national inside its own territory and demand of him that he pay tax on
income earned abroad which has no nexus whatsoever with the state itself. In this
case there would be an abuse of the jurisdiction to prescribe, even though the state
has not exceeded its enforcement jurisdiction.30
To sum up, just as international law delimits the territories of states, so it
delimits the spheres of their municipal law through the doctrine of jurisdiction.
26
See O’Keefe, above note 17, at 738–9; Lowe, above note 15, at 340–53.
27
See Lowe, above note 15, at 344–5.
28
Bankovic, paras 59 and 60. Unfortunately, as well shown by O’Keefe, above note 17, the
European Court is not the only international court to fail to appreciate the fundamental significance
of the distinction between the jurisdiction to prescribe and the jurisdiction to enforce. See Arrest
Warrant of 11 April 2000 (Congo v, Belgium), Judgment, ICJ Reports 2000, at 3.
29
See Restatement (Third) of the Foreign Relations Law of the United States, s. 401(c) (referring to
enforcement jurisdiction as state authority ‘to enforce or compel compliance or to punish noncompli-
ance with its laws or regulations, whether through the courts or by use of executive, administrative,
police, or other nonjudicial action’).
30
O’Keefe, above note 17, at 741.
Jurisdiction ‘concerns essentially the extent of each state’s right to regulate conduct
or the consequences of events’,31 this right being limited by the equal rights and
sovereignty of other states.32
C. Jurisdiction: an absurdity
But what does this concept of jurisdiction from general international law have to do
with the one found in human rights treaties? In short, precisely nothing. To prove
this we must go back to the first truly landmark case on the extraterritorial
application of the ECHR, Loizidou, in which the Court held that
. . . although Article 1 sets limits on the reach of the Convention, the concept of "jurisdic-
tion" under this provision is not restricted to the national territory of the High Contracting
Parties. According to its established case-law, for example, the Court has held that the
extradition or expulsion of a person by a Contracting State may give rise to an issue under
Article 3, and hence engage the responsibility of that State under the Convention (see the
Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, pp. 35–36, para. 91;
the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201,
p. 28, paras. 69 and 70, and the Vilvarajah and Others v. the United Kingdom judgment
of 30 October 1991, Series A no. 215, p. 34, para. 103). In addition, the responsibility of
Contracting Parties can be involved because of acts of their authorities, whether performed
within or outside national boundaries, which produce effects outside their own territory
(see the Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A
no. 240, p. 29, para. 91).
Bearing in mind the object and purpose 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.33
This ruling was reaffirmed at the merits stage of Loizidou, as well as in the
subsequent case of Cyprus v. Turkey, in which Turkey was again held liable for
human rights violations committed in the territory over which it had ‘effective
overall control’.34 Indeed, even Bankovic did not purport to overrule Loizidou, but
merely to clarify it (or not, as it turned out). Note, however, that the authorities
31
R. Jennings and A. Watts (eds), Oppenheim’s International Law (9th edn, 1992), at 456 (emphasis
added).
32
F. Mann, ‘The Doctrine of International Jurisdiction Revisited After Twenty Years’, (1984-III)
186 RdC 9, at 20.
33
Loizidou v. Turkey, App. No. 15318/89, Judgment (preliminary objections), 23 February 1995,
para. 62 (citations omitted, emphasis added). The applicant was a Greek Cypriot who originally lived
in northern Cyprus. After the Turkish invasion and the establishment of the so-called Turkish
Republic of Northern Cyprus (TRNC), the applicant was unable to access her property in northern
Cyprus. In its preliminary objections judgment the European Court held that Turkey had obligations
under the ECHR towards the applicant. In its merits judgment the Court found that the applicant’s
right to property had been violated by Turkey.
34
Loizidou v. Turkey, App. No. 15318/89, Judgment (merits), 28 November 1996, paras 52–7;
Cyprus v. Turkey, App. No. 25781/94, Judgment, 10 May 2001, paras 77 and 78. The northern
that the Court cites to give it effective control of an area pronouncement a patina of
age in fact hardly support it.35 As we have seen above, Soering and its progeny are
not really about extraterritorial application, since the victim of the human rights
violation is clearly located within the state’s jurisdiction.36 The Drozd case is
likewise inapposite. It concerned the acts of French and Spanish judges in Andorra,
at whose disposal they were put, and accordingly their acts were not attributable to
France and Spain.37 The Drozd quotation on acts of state authorities which
‘produce effects outside their own territory’, to which the Court in Loizidou
somewhat surreptitiously added the words ‘whether performed within or outside
national boundaries’, was in fact based solely on the Commission’s case law, which
regarded Article 1 jurisdiction not as control over territory, but as control over
individuals. It was probably for that reason that this case law was not even cited by
the Court in Loizidou, which for the first time applied a spatial, rather than personal,
model of jurisdiction.38
Loizidou’s flimsy foundations in prior case law aside, neither the Commission
nor the Court in its pre-Bankovic case law based their interpretation of Article 1
ECHR on the general international law doctrine of jurisdiction. No Oppenheims,
Brownlies, Casseses, or Pellets were ever cited by the Court in Loizidou, and for
good reason—exercising ‘effective overall control’ over a territory does not mean
that the state is necessarily exercising its ‘jurisdiction’—as general international law
speaks of the term—over the inhabitants of that territory. As explained above, this
type of jurisdiction requires the state to extend the application of its domestic law so
that it purports to regulate the conduct of a person. The purpose of the doctrine of
jurisdiction in international law is precisely to establish whether a claim by a state to
regulate some conduct is lawful or unlawful.39 Conversely, ‘effective overall control
of an area’ is a question of fact, of actual physical power that a state has over a
territory and its people. Indeed, none of the numerous authors cited above makes
any mention of ‘effective overall control of an area’ as a legal basis of either the
jurisdiction to prescribe or the jurisdiction to enforce the rules thus prescribed.
In other words, when Turkey invaded Cyprus, it did not exercise its jurisdiction
within the meaning of general international law over the parts of Cyprus that it had
conquered. It did not, for example, say that the Turkish Criminal Code applied to
Cyprus, and that the inhabitants of Cyprus were bound, as a matter of law, to obey
these rules of conduct. On the contrary, Turkey created a puppet regime, the
Turkish Republic of Northern Cyprus, which it (and it alone) recognized as
an independent state. Turkey did not even claim to have jurisdiction in the
Cyprus line of cases employ a spatial conception of state jurisdiction, which will be examined in more
detail in Chapter IV, Section 2 below.
35
See Lawson, above note 11, at 97.
36
See Chapter I, Section 2 above.
37
See also Section 3.D below.
38
On the Commission’s case law, see further below, especially Chapter IV, Section 3.
39
See B. Oxman, ‘Jurisdiction of States’ in Max Planck Encyclopedia of Public International Law,
available at <http://www.mpepil.com>, paras 1 and 9.
classical sense.40 What it most certainly did have was actual power to affect the lives
of the inhabitants of the territory that it occupied.
A defender of Bankovic might respond to this argument in the following way.
First, as the Court itself said in Bankovic, international law does recognize the
jurisdiction, if in a limited sense, of a state which engages in a belligerent occupa-
tion of another state. Secondly, even if Turkey did not exercise its prescriptive
jurisdiction, as it did not set out any rules of its domestic law that the inhabitants of
northern Cyprus were mandated to follow, it did exercise its jurisdiction to enforce.
The first of these objections is unfounded. Belligerent occupation is a legal regime
that arises only when a certain factual condition is met—that a territory of one state is
‘actually placed under the authority’ of the army of the hostile state.41 When this state
of affairs occurs, international law tries to limit any potential abuses by setting out a
certain number of rights, and a greater amount of obligations, which are incumbent
upon the occupying state. As prescribed by Article 43 of the Hague Regulations, ‘[t]he
authority of the legitimate power having in fact passed into the hands of the occupant,
the latter shall take all the measures in his power to restore, and ensure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the
laws in force in the country’. In theory at least, belligerent occupation is a transitory
regime, in which the occupying state must still respect to an extent the authority of the
sovereign that it has displaced. Among the rights granted by international law to an
occupying power is certainly not the right to extend its own laws to the occupied
territory as it pleases, as Article 43 of the Hague Regulations amply demonstrates.
Any laws that it passes for the occupied territory—if it does so at all—end with the
occupation itself.42 In other words, a state which occupies the territory of another state
has not ipso facto exercised its jurisdiction, as that term of general international law is
referred to in Bankovic, over the persons living in that territory.
The objection that Turkey might not have exercised its prescriptive jurisdiction,
but that it did exercise its enforcement jurisdiction over the people of northern
Cyprus would also be misplaced. Enforcement jurisdiction presupposes a previous
exercise of prescriptive jurisdiction,43 and not every coercive action that a state
might take is an exercise of its jurisdiction to enforce. It is a legal rule that is being
40
For example, in the first Cyprus v. Turkey case to be heard by the former European Commission
on Human Rights, Turkey argued that
. . . the Commission had no jurisdiction ratione loci to examine the application as Cyprus
did not fall under Turkish jurisdiction. Turkey had not extended her jurisdiction to the
island of Cyprus since she had not annexed a part of the island nor established a military or
civil government there. The administration of the Turkish Cypriot community had
absolute jurisdiction over part of the island. Moreover, Turkey could not be held liable
under Art. 63 of the Convention since she was not responsible for the international relations
of either the whole or a part of Cyprus.
Cyprus v. Turkey (dec.), App. Nos 6780/74 and 6950/74, 26 May 1975, 2 D.R. 125, at 130.
41
Art. 42 of the Hague Regulations.
42
See generally M. Sassoli, ‘Legislation and Maintenance of Public Order and Civil Life by
Occupying Powers’, (2005) 16 EJIL 661.
43
See, e.g., Mann, above note 32, at 34, who states that ‘[n]o State may exercise enforcement
jurisdiction outside its own territory in the absence of its own legislature authorizing it to do so, that is
to say, in the absence of legislative jurisdiction’. Restatement (Third) Foreign Relations Law of the United
enforced, or a legal authority that is being exercised, under the guise of domestic law
and in at least an asserted conformity with international law—it is not merely a
display of naked power, even if it is a ‘public’ power, whatever that particular
concept might mean.44 If, on the other hand, enforcement jurisdiction were to be
decoupled from domestic law, it would in essence be reduced to the concept of
jurisdiction as factual power as set out in this study, thereby rendering this
objection meaningless.45
Hence, the concept of jurisdiction in general international law serves a complete-
ly different purpose from that developed by the European Court in Loizidou—it
sets out limits on the domestic legal orders of states, so that they do not infringe
upon the sovereignty of others. One possible answer to the inconsistency between
the general international law notion of jurisdiction and the one developed by the
European Court in Loizidou and reaffirmed in later cases, Bankovic included, is that
Loizidou and its progeny are completely wrong and should be overruled. If the
‘effective overall control of an area’ test to establish jurisdiction for the purposes of
Article 1 ECHR is incompatible with the classical doctrine of jurisdiction, then it is
this test, not the classical doctrine, that should be discarded. In other words, the
answer might be that Bankovic did not go far enough in bringing the Court’s case
law back into conformity with general international law.
This argument presumes, however, that problems with interpreting Article 1
ECHR arise only when it is being applied extraterritorially, as everyone who is
within a state’s territory is ipso facto within its jurisdiction, as international law
speaks of the term. That is simply not the case. While the domestic law of a state
generally applies to all persons within its territory, who are all in that sense within
the state’s (prescriptive) jurisdiction, not every act done by a state is committed in
furtherance of a rule of its domestic law. The state may kill, maim, or persecute
people without any guise of legal authority. If, for example, the use of torture by a
state agent was authorized by the state’s law, and torture was conducted in an
institutional setting with torture warrants à la Court of Star Chamber, one could
well speak of the state exercising its jurisdiction to prescribe and to enforce against
the unfortunate victim of such treatment. But that is, of course, not how torture is
States, s. 401: ‘jurisdiction to enforce [is the power of the state] to induce or compel compliance or to
punish noncompliance with its laws or regulations’. See also Oxman, above note 39, para. 5.
44
Bankovic, para. 71.
45
See, in that regard, G. Goodwin-Gill, ‘The Extra-Territorial Reach of Human Rights Obligations:
A Brief Perspective on the Link to Jurisdiction’, in L. Boisson de Chazournes and M. Kohen (eds),
International Law and the Quest for its Implementation/Le droit international et la quête de sa mise en œuvre,
Liber Amicorum Vera Gowlland-Debbas (Brill/Martinus Nijhoff, 2010), 293, esp. at 306 and 307:
as Brownlie notes, jurisdiction is also understood to include enforcement or prerogative
jurisdiction, namely, ‘ . . . the power to take executive action in pursuance of or consequent
on the making of decisions or rules’. It is this sense of ‘jurisdiction’ which stands out in
human rights claims arising out of extra-territorial actions . . . . ‘Jurisdiction’, if it is to have a
coherent meaning in the context of human rights protection, should therefore be seen to
reflect that aspect of the term in general international law which recognizes that every State
has the sovereign capacity to act outside its territory, while leaving open the question
whether such exercise of jurisdiction is lawful vis-a-vis other States, or consistent with the
human rights obligations of the acting State.
done in the modern world, since even the worst dictatorships at least pretend not to
torture, and when they in fact do so they do not purport to be enforcing domestic
law. Indeed, some human rights violations are designed precisely so as to avoid any
semblance of legal process. It would be simply bizarre to suggest that, for example,
enforced disappearances are an instance of a state exercising its prescriptive or
enforcement jurisdiction. They are an exercise of power, pure and simple, not of
any sort of legal competence—unless, again, the concept of jurisdiction is reduced
to one of purely factual power.
Bankovic has been criticized because it created a perverse incentive for states
acting outside their boundaries. If state agents detain someone pursuant to a
warrant, and then kill him, he would be within the state’s jurisdiction. If, however,
the state’s agents shoot first and ask questions later, the state would presumably not
be deemed to have had jurisdiction.46 However, this same perverse incentive
applies both within and outside a state’s territory, if one consistently applies the
classical international law notion of jurisdiction. If the Royal Air Force were to drop
a bomb or two on Bristol or Belfast, it would not be an exercise of the United
Kingdom’s jurisdiction any more than it was when it bombed Belgrade, since the
act itself would not be meant to enforce a previously prescribed rule of domestic
law.47 The extraterritorial application of human rights treaties notwithstanding,
interpreting the notion of jurisdiction in these treaties as being identical to the one
in general international law would lead to manifestly absurd results even in the
domestic sphere, which the states parties to these treaties could not possibly have
intended.
D. Jurisdiction: a homonym
What, then, is this notion of jurisdiction in human rights treaties? Is it an autono-
mous concept specific to these treaties, as some judges of the European Court have
suggested in the Ilascu case,48 or, to disguise the uncertainty with a Latin phrase, a
concept sui generis? We need not go that far. State practice, especially state treaty-
making practice, shows that more than one ordinary meaning of the word ‘jurisdic-
tion’ exists in international law. To illustrate this, let us take a look at Article 9(1) of
the International Convention for the Protection of All Persons from Enforced
Disappearance:
Each State Party shall take the necessary measures to establish its jurisdiction over the
offence of enforced disappearance:
46
See, e.g., McGoldrick, above note 8, at 72, n. 132.
47
See also Lawson, above note 11, at 114–15.
48
Ilascu and others v. Moldova and Russia [GC], App. No. 48787/99, Judgment, 8 July 2004;
Partially Dissenting Opinion of Judge Bratza, joined by Judges Rozakis, Hedigan, Thomassen, and
Pantiru, para. 8.
(a) When the offence is committed in any territory under its jurisdiction or on board a
ship or aircraft registered in that State;
(b) When the alleged offender is one of its nationals;
(c) When the disappeared person is one of its nationals and the State Party considers it
appropriate.
An article such as this one can be found in many treaties which create specific
international offences that states are obliged to criminalize and prosecute.49
Article 9(1) of this Convention requires states to do so for the crime of enforced
disappearance on the basis of the territorial principle, the nationality principle,
and the passive personality principle—a classical example of a treaty obligation
mandating the extension of the prescriptive jurisdiction of states parties for some
specific conduct. But take a look at how the territorial principle is formulated in
Article 9(1)(a): ‘Each State Party shall take the necessary measures to establish its
jurisdiction . . . [w]hen the offence is committed in any territory under its jurisdic-
tion.’ Here we have two uses of the word ‘jurisdiction’, but their meaning is not
the same. If it were, a state would be required to establish its jurisdiction when it
already had jurisdiction.
Quite similar are Article 5(1)(a) CAT, which provides that ‘[e]ach State Party shall
take such measures as may be necessary to establish its jurisdiction over the offences
referred to in article 4 . . . [w]hen the offences are committed in any territory under its
jurisdiction’, and Article 12(1)(a) of the Inter-American Convention to Prevent and
Punish Torture, which stipulates that ‘[e]very State Party shall take the necessary
measures to establish its jurisdiction over the crime described in this Convention . . .
[w]hen torture has been committed within its jurisdiction’. What possible purpose
could these provisions have if the first and the second uses of the word ‘jurisdiction’
were the same? States generally do not go through the effort of negotiating and
adopting legally binding treaties so they can fill them with tautologies.
Article 9(2) of the Disappearances Convention is an even better example of the
myriad of meanings of the word ‘jurisdiction’:
Each State Party shall likewise take such measures as may be necessary to establish its
jurisdiction over the offence of enforced disappearance when the alleged offender is present
in any territory under its jurisdiction, unless it extradites or surrenders him or her to another
State in accordance with its international obligations or surrenders him or her to an
international criminal tribunal whose jurisdiction it has recognized.
Three times does this article use the word ‘jurisdiction’ and every time it does so
with a different meaning. The first ‘jurisdiction’ is the jurisdiction of the state to
prescribe an offence in its criminal law, in this particular case a treaty-based
universal jurisdiction for the crime of enforced disappearance. The third use of
the word ‘jurisdiction’ refers to the jurisdiction of an international criminal court,
which is based on the state’s consent. But it is the second use of the word
49
See, e.g., Arts 6 and 7, International Convention for the Suppression of Terrorist Bombings; Art. 7,
International Convention for the Suppression of the Financing of Terrorism; Art. 9, International
Convention for the Suppression of Acts of Nuclear Terrorism; Art. 4, United Nations Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
‘jurisdiction’ which interests us here, as that is the one which can also be found in
human rights treaties—it refers to a particular kind of factual power, authority, or
control that a state has over a territory, and consequently over persons in that
territory.50 So does, for instance, Article 12(2) of the Inter-American Torture
Convention: ‘Every State Party shall also take the necessary measures to establish
its jurisdiction over the crime described in this Convention when the alleged
criminal is within the area under its jurisdiction’ (emphasis added).
This is precisely the kind of concept that the European Court developed in
Loizidou with its ‘effective overall control of an area’ test, as sensible a definition of
‘jurisdiction’ as any. It is this notion of jurisdiction—not the jurisdiction to
prescribe rules of domestic law and to enforce them, but control over a territory
and persons within it—that pervades international human rights treaties. Indeed,
one can even glimpse it in the Universal Declaration of Human Rights, which in
the final clause of its preamble says that
. . . as a common standard of achievement for all peoples and all nations, to the end that
every individual and every organ of society, keeping this Declaration constantly in mind,
shall strive by teaching and education to promote respect for these rights and freedoms and
by progressive measures, national and international, to secure their universal and effective
recognition and observance, both among the peoples of Member States themselves and
among the peoples of territories under their jurisdiction. (emphasis added)
The UDHR then goes on to say in its Article 2 that
[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or
international status of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of sovereignty.
(emphasis added)
The use of this concept of ‘jurisdiction’ in the UDHR was clearly meant to address
the then still current problem of colonialism. Indeed, the second paragraph of
Article 2 was inserted into the UDHR in lieu of a previous draft Article 3,
which prescribed that the UDHR was to be applied equally in non-self-governing
territories.51 Concerns over colonialism also seem to motivate Article 14 ICESCR:
Each State Party to the present Covenant which, at the time of becoming a Party, has not
been able to secure in its metropolitan territory or other territories under its jurisdiction
compulsory primary education, free of charge, undertakes, within two years, to work out
and adopt a detailed plan of action for the progressive implementation, within a reasonable
number of years, to be fixed in the plan, of the principle of compulsory education free of
charge for all. (emphasis added)
50
Thus, for example, the authoritative commentary on the CAT by Burgers and Danelius states that
the reference to ‘any territory under its jurisdiction’ in the CAT was one to ‘territories under the factual
control of a State, including territories under military occupation.’ J.H. Burgers and H. Danelius, The
United Nations Convention against Torture (Nijhoff, 1988), at 133. See also ibid., at 131.
51
See B. Simpson, Human Rights and the End of Empire (Oxford University Press, 2004), at 455.
The CERD ‘also explicitly refers to territory in the jurisdiction clause in its Article 3:
‘States Parties particularly condemn racial segregation and apartheid and undertake
to prevent, prohibit and eradicate all practices of this nature in territories under
their jurisdiction.’ The link of jurisdiction to territory is made the clearest in the
CAT, which speaks of ‘any territory under its [the State’s] jurisdiction’ in seven
separate clauses (Articles 2(1), 5(1)(a), 5(2), 11, 12, 13, and 16), and ‘territory under
whose jurisdiction’ in one more clause (Article 7(1)).
The treaty practice of states thus shows that they employ two concepts of
jurisdiction. The first, classical doctrine of jurisdiction in general international law
refers to the state regulation of the conduct of persons, natural or legal, and the
consequences of their actions under domestic law. In other words, it delimits the
municipal legal orders of states, which can and do overlap. The second notion of
jurisdiction, that is found, inter alia, in human rights treaties, denotes a certain kind
of power that a state exercises over a territory and its inhabitants, i.e. it is spatial in
nature. The two concepts may be related, but they cannot possibly be the same.52
One might object to this distinction by saying that the jurisdiction clauses in
some human rights treaties do not refer to territories, but to persons within or
subject to the state’s jurisdiction—such as, for example, Article 1 ECHR and
Article 2(1) ICCPR. These clauses can be interpreted—and indeed have been
interpreted—as defining a particular kind of relationship between a state and an
individual. Thus, human rights treaties should apply not (only) when a state
exercises control over a territory, but (also) when it exercises authority and control
over a person.53 I will be examining the spatial and personal models of jurisdiction
below in more detail.54 Suffice it to say at this point that, textually, the jurisdiction
clauses of most human rights treaties are ‘primarily territorial’ in nature—but not
necessarily exclusively so. Even if they do, in fact, connote a relationship between a
state and an individual, this would be one based on factual power, and would still
not fall under the other meaning of the word ‘jurisdiction’ which denotes the state’s
extension of its laws to a particular individual.55
That the word ‘jurisdiction’ can mean several different things is apparent even
from looking at dictionary definitions. Thus, among the general dictionaries, the
Oxford English Dictionary attributes four meanings to the word ‘jurisdiction’,
among which is the exercise of a legal authority or power, but also ‘power or
authority in general; administration, rule, control’ and ‘the extent or range of
judicial or administrative power; the territory over which such power extends’.56
52
The same conclusion was reached by Wilde in an excellent article—see R. Wilde, ‘Triggering
State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’, (2007) 40
Israel L Rev 503, especially at 508, 513–14. See also A. Ruth and M. Trilsch, ‘Bankovic v. Belgium
(Admissibility)’, (2003) 97 AJIL 168, at 171; O. De Schutter, ‘Globalization and Jurisdiction: Lessons
from the European Convention on Human Rights’, (2006) 6 Baltic Yearbook of International Law 183;
A. Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of
the European Court of Human Rights’, (2003) 14 EJIL 529, at 539 et seq.
53
See, e.g., Issa v. Turkey, App. No. 31821/96, Judgment, 16 November 2004.
54
See Chapter IV.
55
See below, Chapter IV, Section 3.C.
56
OED Online, available at <http://dictionary.oed.com/>.
Similarly, the American Heritage Dictionary defines ‘jurisdiction’ not only as ‘[t]he
right and power to interpret and apply the law’, but also as ‘[a]uthority or control’
and ‘[t]he territorial range of authority or control’.57 Among the specialized
legal dictionaries, Black’s Law Dictionary defines jurisdiction both as a ‘govern-
ment’s general power to exercise authority over all persons and things within its
territory’ and a ‘geographic area within which political or judicial authority may be
exercised’,58 while ‘territory’ is defined as a ‘geographical area included within a
particular government’s jurisdiction’.59
There is thus nothing extravagant in interpreting ‘jurisdiction’ to mean factual
power. Likewise, the word ‘jurisdiction’ in its sense as control over territory and
perhaps also individuals is in international law not used only in human rights
treaties, but in a variety of other instruments. Let us now examine some of them,
and delve a bit into the origins of jurisdiction clauses.
E. Origins of jurisdiction clauses

Where did the jurisdiction clauses in human rights treaties come from, and which
was the first one? To answer that question, we first must take a brief look at the
period following the end of the First World War and the establishment of the
League of Nations. With limited exceptions, as with the rules on the treatment of
aliens, classical international law did not protect individual rights. Individuals were,
in the notorious words of Oppenheim, merely objects, not subjects of international
law, which concerned itself solely with relations between nation-states. This classi-
cal position slowly began to erode in the first half of the twentieth century.
First, the peace treaties which ended the First World War established a legal
regime for the protection of minorities in Europe. These minority treaties are in
some ways the antecedents of the modern human rights regime created after the
Second World War, both because of their limited successes and because of their
much greater failures. As these treaties were the first systematic attempt to safeguard
the rights of individuals in international law (sort of),60 it is only natural to first
look at them to see whether they contained anything like a jurisdiction clause. They
do not. If we take as an example the 1919 Treaty of Saint Germain,61 we will see
that the state concerned, Austria, bound itself to guarantee certain rights only to its
inhabitants or to its nationals. For instance, under Article 63(1) of the Treaty
‘Austria undertakes to assure full and complete protection of life and liberty to all
inhabitants of Austria without distinction of birth, nationality, language, race or
religion’ while according to Article 66(1) ‘[a]ll Austrian nationals shall be equal
57
American Heritage Dictionary (3rd edn, 1992), at 978.
58
Black’s Law Dictionary (9th edn, 2009), at 927–8.
59
Ibid., at 1611.
60
See generally P. Thornberry, International Law and the Rights of Minorities (Oxford University
Press, 1993); Simpson, above note 51, at 121 et seq.
61
Treaty of Peace between the Allied and Associated Powers and Austria; Protocol, Declaration and
Special Declaration, Austria; Protocol, Declaration and Special Declaration, St Germain-en-Laye, 10
September 1919, text available at <http://www.austlii.edu.au/au/other/dfat/treaties/1920/3.html>.
before the law and shall enjoy the same civil and political rights without distinction
as to race, language or religion’.
However, a jurisdiction clause related to the protection of minorities can be
gleamed in a failed American proposal to include, as Article 6, the following
provision in the Covenant of the League of Nations:
The League of Nations shall require of all new States to bind themselves as a condition
precedent to their recognition as independent or autonomous States, to accord to all racial or
national minorities within their several jurisdiction exactly the same treatment and security,
both in law and in fact, that is accorded to the racial or national majority of the people.62
The League of Nations Covenant as adopted only speaks of ‘jurisdiction’ when it
provides in its Article 15 that the League Council will not intervene within matters
which are solely within the domestic jurisdiction of a member state, which is yet
another different meaning of the word ‘jurisdiction’.63 The Covenant does, how-
ever, contain one provision which is similar to a jurisdiction clause in Article 23(b),
which stipulates that ‘[s]ubject to and in accordance with the provisions of
international conventions existing or hereafter to be agreed upon, the Members
of the League . . . undertake to secure just treatment of the native inhabitants of
territories under their control ’ (emphasis added).
So, there are no jurisdiction clauses to be found either in the minority treaties, or
in the League of Nations Covenant as adopted. Incidentally, they do not exist even
in the modern treaties for the protection of minorities which were concluded under
the auspices of the Council of Europe after the end of the Cold War, and are plainly
territorially limited.64 They are also only to be found in one of the numerous
conventions adopted within the International Labour Organization (ILO), itself a
child of the First World War, which are clearly intended to be applicable only within
a state’s territory and which moreover often contain elaborate colonial clauses.65
The word ‘jurisdiction’ in the sense of territory or territorial control is however
used in bilateral treaties going back at least a hundred years. Thus, for example,
the 1902 extradition treaty between the United States and Serbia provides in its
Article I that
[t]he Government of the United States and the Government of Serbia mutually
agree to
deliver up persons who, having been charged with or convicted of any of the crimes and
offenses specified in the following article, committed within the jurisdiction of one of the
high contracting parties, shall seek an asylum or be found within the territories of the other.66
(emphasis added)
62
Cited according to Simpson, above note 51, at 124 (emphasis added).
63
A similar provision can be found in Art. 2(7) of the UN Charter.
64
For instance, the preamble to the Framework Convention for the Protection of National
Minorities, CETS No. 157, refers to the states parties’ resolve ‘to protect within their respective
territories the existence of national minorities’.
65
Furthermore, Art. 35 of the ILO Constitution sets out a general regime of applicability of ILO
conventions to overseas territories, a sort of a super-colonial clause.
66
Treaty on Extradition of 12 June 1902, 32 Stat. 1890, 12 Bevans 1238. Incidentally, this treaty
still remains in force for the successor states of the former Yugoslavia.
Similarly, and quite appropriately, ‘jurisdiction’ as territorial control is also used in
the bilateral treaty between the US and Cuba on the lease of Guantanamo Bay.67
Under Article III of that treaty,
While on the one hand the United States recognizes the continuance of the ultimate
sovereignty of the Republic of Cuba over the above described areas of land and water, on
the other hand the Republic of Cuba consents that during the period of the occupation
by the United States of said areas under the terms of this agreement the United States
shall exercise complete jurisdiction and control over and within said areas . . . (emphasis
added)
This article thus clearly distinguished between sovereignty or title over territory on
the one hand, which remained with Cuba, and factual jurisdiction and control over
territory on the other, which was vested in the United States.
The earliest jurisdiction clause proper governing the scope of application of state
obligations that I could find in a multilateral treaty is the one in Article 2 of the
1926 Slavery Convention,68 which provides as follows:
The High Contracting Parties undertake, each in respect of the territories placed under its
sovereignty, jurisdiction, protection, suzerainty or tutelage, so far as they have not already taken
the necessary steps:
(a) To prevent and suppress the slave trade;
(b) To bring about, progressively and as soon as possible, the complete abolition of
slavery in all its forms. (emphasis added)
The formulation ‘any territory placed under its sovereignty, jurisdiction, protec-
tion, suzerainty or tutelage’ is repeated word for word in Articles 5 (forced labour),
9 (colonial clause), and 10 (denouncement) of the Convention. It shows very
clearly that this ‘jurisdiction’ is a cognate of notions such as sovereignty and
suzerainty, and moreover refers to a state’s control over territory, not to the
competence of the state to extend its domestic law to cover the conduct of a
particular person.
To my knowledge, the only other multilateral treaty of the interwar period to
have a jurisdiction clause was the 1930 ILO Forced Labor Convention,69 which in
its Article 26(1) provides that
[e]ach Member of the International Labour Organisation which ratifies this Convention
undertakes to apply it to the territories placed under its sovereignty, jurisdiction, protection,
suzerainty, tutelage or authority, so far as it has the right to accept obligations affecting
matters of internal jurisdiction; provided that, if such Member may desire to take advantage
67
Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval
Stations, 23 February 1903, T.S. No. 418, available at <http://avalon.law.yale.edu/20th_century/dip_
cuba002.asp>.
68
Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926, 60
LNTS 253, entered into force 9 March 1927.
69
Convention concerning Forced or Compulsory Labour (ILO No. 29), 39 UNTS 55, entered
into force 1 May 1932.
of the provisions of article 35 of the Constitution of the International Labour Organisation,
it shall append to its ratification a declaration stating:
(1) The territories to which it intends to apply the provisions of this Convention without
modification;
(2) The territories to which it intends to apply the provisions of this Convention with
modifications, together with details of the said modifications;
(3) The territories in respect of which it reserves its decision.
Bearing in mind the subject-matter of this treaty—prohibiting forced labour—it is
apparent that its drafters modelled this provision on the jurisdiction clauses of the
1926 Slavery Convention. It is still fascinating, however, for several reasons. First,
unlike with the several separate clauses in the Slavery Convention, this jurisdiction
clause controls the scope of applicability of the entire treaty, much like Article 1
ECHR, not just that of a particular obligation, and appears to be the first of its
kind. Secondly, to the list of terms in the clause found in the Slavery Convention
one more is added after ‘tutelage’—the word ‘authority’, which again demonstrates
that the word ‘jurisdiction’ is used here with a similar meaning, as one on a
spectrum of similar concepts. Thirdly, this is the only treaty provision that
combines a jurisdiction clause with a colonial clause.
Now we must fast forward to the aftermath of the Second World War, when
human rights law was born. The first two international human rights instruments
adopted, both of which were hortatory instead of formally binding, were the
American Declaration of the Rights and Duties of Man, in 1946, and the
UDHR, in 1948. The former contains no provisions governing its territorial
applicability,70 and strictly speaking, neither does the latter. However, as we have
seen, in its preamble the UDHR does indeed refer to territories under the states’
jurisdiction, and in its Article 2 it again speaks of the jurisdictional status of
territories.
The first true human rights jurisdiction clauses, however, did not appear in the
usual suspects—the ECHR and the ICCPR—but in the peace treaties concluded
after the war between the Allies and associated powers and the defeated powers of
the Axis. For example, Article 15 of the 1947 Peace Treaty with Italy 71 provides as
follows:
Italy shall take all measures necessary to secure to all persons under Italian jurisdiction, without
distinction as to race, sex, language or religion, the enjoyment of human rights and of the
fundamental freedoms, including freedom of expression, of press and publication, of
religious worship, of political opinion and of public meeting.72 (emphasis added)
70
On the other hand, drafts of the Declaration did contain jurisdiction clauses—see Gondek, at
79–81.
71
Available in (1948) 42 AJIL Supplement 47. See also Simpson, above note 51, at 328–31.
72
An almost identical clause can be found in Article 4 of Annex VI to the Treaty, which served as
the statute of the Free Territory of Trieste. In 1954, Italy, Yugoslavia, the United Kingdom, and the
United States signed a Memorandum of Understanding which divided the Free State into Italian and
Yugoslav areas—see UN Doc. S/3301. Annexed to this Memorandum of Understanding is a Special
Statute which Italy and Yugoslavia agreed to enforce, and which provides for the ‘common intention of
the Italian and Yugoslav Governments to ensure human rights and fundamental freedoms without
This same mini-human rights convention containing a jurisdiction clause can be
found in other peace treaties concluded after the Second World War.73 A similar
clause was inserted into Article 3 of the 1949 Statute of the Council of Europe, the
treaty which created that international organization, which requires of a member
state to ‘accept the principles of the rule of law and of the enjoyment by all persons
within its jurisdiction of human rights and fundamental freedoms’.
Therefore, jurisdiction clauses were not invented in the first human rights
treaties to be drafted, the then single International Covenant and the ECHR, but
have a considerably longer pedigree in the treaty practice of states, not to mention a
meaning distinct from that concept of the jurisdiction of states which delimits the
spheres of their municipal law. This is also shown by the preparatory work of the
ECHR, which was cited by the European Court itself in Bankovic.74
As originally drafted by a committee of the Consultative Assembly of the
Council of Europe, Article 1 ECHR extended its protections to all persons residing
within the states parties’ territories. This provision was later changed into the
jurisdiction clause. As explained in the travaux:
The Assembly draft had extended the benefits of the Convention to ‘all persons residing
within the territories of the signatory States.’ It seemed to the [Expert Intergovernmental]
Committee 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. The Committee therefore replaced the term ‘residing’ by the
words ‘within their jurisdiction’ which are also contained in Article 2 of the Draft Covenant
of the United Nations Commission.75
This excerpt from the travaux makes several things clear. First, the reason for the
insertion of the jurisdiction clause into Article 1 and the deletion of the reference to
territory is only that the term ‘residing’ which was used in the previous draft could
be interpreted to exclude persons temporarily (or illegally) present in the territory of
the state. Secondly, the word ‘jurisdiction’ was used in a sense largely, though
perhaps not entirely, synonymous with the word ‘territory’, as it is used, for
example, in Article 12(1)(a) of the Inter-American Convention to Prevent and
discrimination of race, sex, language and religion in the areas coming under their administration’
(emphasis added)—see E. Schwelb, ‘The Trieste Settlement and Human Rights’, (1955) 49 AJIL
240. It should be noted that the provisions of the Peace Treaty and of the Special Statute on human
rights differ mainly in that the word ‘jurisdiction’ in the former was replaced by the word ‘administra-
tion’ in the latter, which again suggests that both of these words were used with the same or a very
similar meaning.
73
See Art. 2, Treaty of Peace with Bulgaria, (1948) 42 AJIL Supplement 179; Art. 6, Treaty of Peace with
Finland, (1948) 42 AJIL Supplement 204; Art. 2, Treaty of Peace with Hungary, (1948) 42 AJIL Supplement
225; Art. 3, Treaty of Peace with Romania, (1948) 42 AJIL Supplement 252.
74
Bankovic, para. 19.
75
See A.H. Robertson (ed.), 3 Collected Edition of the ‘Travaux Préparatoires’ of the European
Convention on Human Rights (Nijhoff, 1976), at 260.
Punish Torture cited above.76 Thirdly, the reason why it was opted for by the
drafters is because it was also contained in the draft UN Covenant on human rights,
the provisions that were to become Article 2 ICCPR.77 There is no indication in
the travaux that the word ‘jurisdiction’ was used to connote the limits on the
municipal legal orders of states imposed by international law.
F. Jurisdiction as power
The reader will hopefully not begrudge my spending so many pages on pointing
out the obvious—that there is not an ordinary meaning, but many such meanings
of the word ‘jurisdiction’ in international law. That word can be used to refer to the
competence of a court or to that of any body which applies or interprets the law, to
the jurisdiction of states to prescribe rules of their municipal law and to enforce
them, or to the domestic jurisdiction of states, the domain in which they are to be
free of outside interference. However, it can also be used more generally as a
synonym for words such as power, authority, or control, either over people or
over territory,78 or as a synonym for the territory within which such power is
exercised.79
It is this last meaning or group of meanings of the word ‘jurisdiction’ that is used
in human rights treaties, as I hope to have proven in the preceding account. That
notion of jurisdiction, however, is not an exclusive, autonomous concept that exists
only in human rights treaties, which cannot be grasped by looking outside them.
There is no fragmentation of general international law here, no self-contained
regimes. The jurisdiction clauses in the Slavery Convention, the Forced Labour
Convention, the peace treaties, and the UDHR all preceded those in the human
rights treaties, and, as we have seen, one was almost included in the Covenant of the
League of Nations. Such clauses also continue to be used to set a threshold for
obligations in contemporary treaty practice, the most recent one being that in
Article 9 of the Enforced Disappearances Convention, quoted above. They are also
76
Of course, this extract from the travaux can be taken as a strong indication that the drafters did
not envisage any extraterritorial application of the ECHR. Indeed, this is exactly how this passage from
the travaux is interpreted by the Court. What it does not entail is that jurisdiction equals title over a
territory. In other words, a state can have more (or less) territories under its jurisdiction (control) than it
actually owns as a matter of law.
77
Intermediate drafts of the Covenant, one produced by a drafting committee of the full Commis-
sion and another adopted at the fifth session of the Commission, which took place in May–June 1949,
read ‘all individuals within its jurisdiction’. See UN Doc. E/CN.4/95, at 16, UN Doc. E/800, at 15
and UN Doc. E/1371, also cited as UN Doc. E/CN.4/350, at 28. This is the formulation that was
taken up by the drafters of the ECHR, but it was changed in the later drafts of the Covenant itself. On
the drafting history of the ECHR and ICCPR with respect to jurisdiction clauses, see further Gondek,
at 81 et seq.
78
I will be exploring in more detail the nature of power or control over territory and over
individuals in Chapter IV, Sections 2.C. and 3.C below.
79
Thus, for example, Hersch Lauterpacht introduced the following provision (Art. 18) into his
draft International Bill of Rights: ‘The obligations of this Bill of Rights shall be binding upon States in
relation both to their metropolitan territory and to any other territory under their control and
jurisdiction.’ See H. Lauterpacht, International Law and Human Rights (Archon Books, 1968; earlier
editions 1930 and 1950), at 317 and 364.
to be found in instruments as varied as, inter alia, the Ottawa Convention on
Landmines,80 the Chemical Weapons Convention,81 the Rio Declaration,82 and
the ENMOD Convention.83 In all likelihood there are many more jurisdiction
clauses in treaties both old and new that I have missed.
Of course, the reason for my belabouring the obvious is that the European Court
in Bankovic simply assumed that the notion of ‘jurisdiction’ in Article 1 ECHR is
the same as that concept of jurisdiction which determines when a state may apply
rules of its domestic law, and relied on that assumption to restrict the extraterritorial
application of the ECHR to some ill-defined exceptional circumstances.84 All of
Bankovic rests on that one, colossal non sequitur. To say that the scope of applica-
tion of human rights treaties depends on the right of states to regulate certain types
of conduct by their domestic law is nothing less than a category error.
The Court’s own recounting of this position in a later case speaks for itself:
In certain exceptional cases, jurisdiction is assumed on the basis of non-territorial factors,
such as: acts of public authority performed abroad by diplomatic and consular representatives
of the State; the criminal activities of individuals overseas against the interests of the State or
its nationals; acts performed on board vessels flying the State flag or on aircraft or spacecraft
registered there; and particularly serious international crimes (universal jurisdiction).85
Is the Court here saying that an individual who commits a crime against a state’s
interests or nationals is thereby within its jurisdiction for the purposes of Article 1
ECHR? That the UK would have the obligation of securing the human rights of a
US national forging pounds sterling in the US, just because general international
law gives the UK the right to criminalize such conduct? And then what are we to
make of the reference to universal jurisdiction? Is it supposed to mean that any
génocidaire on the planet is within the Article 1 jurisdiction of all ECHR states
parties because they all have prescriptive jurisdiction over such acts?86
80
Art. 5(2) of which reads: ‘Each State Party undertakes to destroy or ensure the destruction of all
anti-personnel mines in mined areas under its jurisdiction or control, as soon as possible but not later
than ten years after the entry into force of this Convention for that State Party.’
81
Art. 1(2) of which reads: ‘Each State Party undertakes to destroy chemical weapons it owns or
possesses, or that are located in any place under its jurisdiction or control, in accordance with the
provisions of this Convention.’ A similar clause is contained in numerous other articles of this
Convention.
82
Principle 2 of which reads: ‘States have, in accordance with the Charter of the United Nations
and the principles of international law, the sovereign right to exploit their own resources pursuant to
their own environmental and developmental policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the environment of other States or of areas
beyond the limits of national jurisdiction.’
83
Art. IV of which reads: ‘Each State Party to this Convention undertakes to take any measures it
considers necessary in accordance with its constitutional processes to prohibit and prevent any activity
in violation of the provisions of the Convention anywhere under its jurisdiction or control.’
84
This assumption has also been uncritically followed by some authors—see McGoldrick, above note
8; M. Pedersen, ‘Territorial Jurisdiction in Article 1 of the European Convention on Human Rights’,
(2004) 73 Nord J Int’l L 279.
85
Assanidze v. Georgia [GC], App. No. 71503/01, Judgment, 8 April 2004, para. 137 (recapitulating
Bankovic).
86
Cf. J.-P. Costa, ‘L’Etat, le territoire et la Convention européenne des droits de l’homme’, in
M. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law:
Asking these questions is to answer them. As I have demonstrated above, the

notion of jurisdiction in human rights treaties relates essentially to a question of
fact, of actual authority and control that a state has over a given territory or persons.
‘Jurisdiction’, in this context, simply means actual power, whether exercised lawful-
ly or not—nothing more, and nothing less.87
I should note that this discussion is not meant to prejudge in any way whether
the extraterritorial application of the ECHR or of any other human rights treaty
should be extensive or exceptional. Bankovic may even be right when it comes to its
ultimate result, if that result is based solely on the fact that the territory in which the
applicants were located was not under the effective overall control of the defendant
states88—though, as we shall see, it is questionable whether this requirement
should apply when violations of a negative obligation are at stake. The Bankovic
Court is most certainly not right, however, when it comes to the stated basis of its
reasoning, as it curtailed the notion of jurisdiction in human rights treaties by
reference to an entirely different concept.89
3. State Jurisdiction Is Not State Responsibility
A. Loizidou: a test of attribution?

Unfortunately, the confusion does not stop there, as it has proven necessary to
distinguish the notion of state jurisdiction in human rights treaties from that of
state responsibility, in particular from attribution or imputability of conduct. To
explain this problem as clearly as possible, when the European Court found that
Turkey was responsible for violations of the ECHR because it exercised ‘effective
overall control’ over the area of northern Cyprus, did the Court establish that, as a
matter of law, the acts of the so-called Turkish Republic of Northern Cyprus
(TRNC) were attributable to Turkey, making all acts of the TRNC acts of the state
of Turkey? In other words, is the ‘effective overall control’ test a test of attribution,
and are jurisdiction and responsibility interchangeable concepts, or not? Termino-
logical and conceptual inconsistencies in this regard have plagued the jurisprudence of
the European Court,90 and several judges have attempted to grapple with the
distinction between jurisdiction and responsibility in their opinions.91
Liber Amicorum Lucius Caflisch (Nijhoff, 2007), 179, at 193 (citing Assanidze, and noting that the
Court has never assumed a universality-based competence).
87
It should be noted that one judge of the European Court—Loukis Loucaides—has expressly
adopted this position, both in academic work and in several dissenting opinions. See L. Loucaides,
‘Determining the Extra-territorial Effect of the European Convention: Facts, Jurisprudence and the
Bankovic Case’, (2006) 4 EHRLR 391.
88
See Happold, above note 1.
89
See also Wilde, above note 52, at 514; Gondek, at 375–7;A. Buyse, ‘A Legal Minefield—The
Territorial Scope of the European Convention’, (2008) 1 Inter-American and European Human Rights
Journal 269.
90
See also Gondek, at 160 et seq.
91
See, e.g., the opinions of Judges Loucaides and Kovler in Ilascu, and the joint dissenting opinion
of Judges Golcuklu and Pettiti in Loizidou (preliminary objections).
This is again not an issue of purely academic interest, as the law of state
responsibility is a body of secondary rules which is applicable in a wide variety of
situations. A lot may depend on what the proper standard for attribution is. For
example, the Appeals Chamber of the International Criminal Tribunal for the
former Yugoslavia relied on Loizidou in support of its ‘overall control’ test of
attribution in the Tadic case, which it used to determine whether the conflict in
Bosnia was international or non-international in character. We will come to that
issue in a moment; first, however, we must remind ourselves what the European
Court actually held in Loizidou.
In its preliminary objections judgment the Court ruled as follows:
At the merits stage, the Court affirmed its previous ruling, and held that
[i]t is not necessary to determine whether, as the applicant and the Government of Cyprus
have suggested, Turkey actually exercises detailed control over the policies and actions of the
authorities of the ‘TRNC’. It is obvious from the large number of troops engaged in active
duties in northern Cyprus (see paragraph 16 above) that her army exercises effective overall
control over that part of the island. Such control, according to the relevant test and in the
circumstances of the case, entails her responsibility for the policies and actions of the
‘TRNC’ (see paragraph 52 above). Those affected by such policies or actions therefore come
within the ‘jurisdiction’ of Turkey for the purposes of Article 1 of the Convention (art. 1).
Her obligation to secure to the applicant the rights and freedoms set out in the Convention
therefore extends to the northern part of Cyprus.93
As we have seen, the Court speaks of ‘effective control of an area’ in its preliminary
objections judgment, and of ‘effective overall control’ of an area in its merits
judgment, and generally prefers the latter formula in its subsequent case law.
B. The first possible reading of Loizidou

What are we to make of this test? Perhaps the most natural textual interpretation of
this ruling is that the Court found all actions of the TRNC to be attributable to
Turkey. This is indicated, first, by the Court labelling the TRNC as a local
administration subordinate to Turkey, and, secondly, by the Court saying that
Turkey’s control over the area ‘entails her responsibility’ for the policies and actions
of the TRNC. Indeed, this is how the Loizidou test was seen by the now defunct
European Commission on Human Rights in the last of its reports on interstate
92
para. 62.
93
Loizidou v. Turkey, App. No. 15318/89, Judgment (merits), 28 November 1996, para. 56.
applications submitted by Cyprus against Turkey. In its reports on previous

applications by Cyprus, as well as in its decisions regarding individual applications,
the Commission distinguished between, on the one hand, acts of Turkish military
forces and other Turkish authorities—for which Turkey was held responsible—
and, on the other hand, acts of the Turkish Cypriot authorities, which were not
attributable to Turkey. Accordingly, in those reports the question of attribution
was examined separately in relation to each of the complaints submitted by Cyprus
on the basis of the actual involvement of Turkish authorities or officers.94 Now,
however, after the merits judgment in Loizidou, the Commission felt that this
distinction could no longer be maintained, since the Court found Turkey respon-
sible for the actions of the TRNC.95
It is this reading of Loizidou that was picked up by the ICTY Appeals Chamber
in Tadic,96 in which it initiated a direct conflict of jurisprudence with the ICJ. As is
well known, in Tadic the ICTY had to establish whether the conflict in Bosnia and
Herzegovina could be qualified as international or as non-international, as that
determined which rules of humanitarian law applied and which of the charges
against the defendant could be sustained. The Appeals Chamber held that, in order
to determine whether the conflict which was prima facie internal could be inter-
nationalized by the external involvement of Serbia and the control it had over the
Bosnian Serbs, it had to have recourse to the general rules of state responsibility,
since the rules of international humanitarian law did not provide an answer. In
other words, because international armed conflicts are by definition interstate in
nature, it had to answer the question whether the acts of the Bosnian Serbs were
attributable to Serbia, and only if that answer was in the affirmative would the
conflict have been one between two states, Bosnia and Serbia, and hence interna-
tional in nature. To do that, the Appeals Chamber turned to the ‘effective control’
test developed by the ICJ in the Nicaragua case,97 and found it lacking from the
standpoint of customary international law. It therefore ruled that the proper
standard of attribution to a state of acts committed by an organized armed group
is ‘overall control’, which need not be exercised in a specific operation.
I have previously argued that Tadic was wrongly decided for several reasons.98
First, the Appeals Chamber’s resort to the law of state responsibility was inappro-
priate, since the qualification of an armed conflict is a matter exclusively for the
primary rules of international humanitarian law, not for the secondary rules of state
responsibility. The same legal test cannot logically be used to establish both what
obligation a state has and whether a breach of that obligation is attributable to it.
Secondly, the Appeals Chamber’s principal error in analysis is in its failure to
distinguish between the two tests announced by the ICJ in Nicaragua. The first test,
that of complete dependence or control, as set out in paragraph 109 of the
94
Cyprus v. Turkey, App. No. 25781/94, Commission Report, 4 June 1999, para. 96.
95
96
Prosecutor v. Tadić, IT-94-1, Appeals Chamber, Judgment, 15 July 1999 (hereinafter Tadic).
97
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgment
(merits), 27 June 1986, ICJ Reports 1986, at 14 (hereinafter Nicaragua).
98
See M. Milanovic, ‘State Responsibility for Genocide’, (2006) 17 EJIL 553, at 576–81.
Nicaragua judgment,99 operates at a general level by assessing whether the relation-
ship between a state and non-state actor is so much of control on the one side and
dependence on the other that the non-state actor has to be equated for legal
purposes with an organ of the state. In other words, the non-state actor becomes
a state organ de facto, i.e. an organ even though it is not designated as such by the
state’s own municipal law, and all or any of its acts become the acts of the state. The
second test, that of effective control, as set out in paragraph 115 of the Nicaragua
judgment,100 kicks in only when the first test is not satisfied, and asks whether a
specific operation of a non-state actor which is neither a de jure nor a de facto organ of
the state was indeed conducted under the state’s control. The Appeals Chamber
unequivocally conflated the first test with the latter, contrary to the interpretations
of Nicaragua professed both by the Prosecution and by Judge McDonald, who
dissented from the Trial Chamber judgment in Tadic.101
That the Appeals Chamber’s interpretation of Nicaragua, if nothing else, was
fundamentally mistaken has been demonstrated by the ICJ’s Genocide judgment,102
99
Nicaragua , para. 109: ‘What the Court has to determine at this point is whether or not the
relationship of the contras to the United States Government was so much one of dependence on the
one side and control on the other that it would be right to equate the contras, for legal purposes, with
an organ of the United States Government, or as acting on behalf of that Government.’ After assessing
the available evidence, the Court concluded in para. 110 that it is ‘unable to determine that the contra
force may be equated for legal purposes with the forces of the United States’.
100
Ibid., para. 115:
The Court has taken the view (paragraph 110 above) that United States participation, even if
preponderant or decisive in the financing, organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary targets, and the planning of the whole of its
operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court,
for the purpose of attributing to the United States the acts committed by the contras in the
course of their military or paramilitary operations in Nicaragua. All the forms of United States
participation mentioned above, and even the general control by the respondent State over a
force with a high degree of dependency on it, would not in themselves mean, without further
evidence, that the United States directed or enforced the perpetration of the acts contrary to
human rights and humanitarian law alleged by the applicant State. Such acts could well be
committed by members of the contras without the control of the United States. For this
conduct to give rise to legal responsibility of the United States, it would in principle have to be
proved that that State had effective control of the military or paramilitary operations in the
course of which the alleged violations were committed.
101
In the Appeals Chamber’s own words (Tadic, para. 112):
The Appeals Chamber does not subscribe to this interpretation [that two distinct tests were
formulated by the ICJ in Nicaragua]. Admittedly, in paragraph 115 of the Nicaragua
judgement, where ‘effective control’ is mentioned, it is unclear whether the Court is
propounding ‘effective control’ as an alternative test to that of ‘dependence and control’
set out earlier in paragraph 109, or is instead spelling out the requirements of the same test.
The Appeals Chamber believes that the latter is the correct interpretation. In Nicaragua, in
addition to the ‘agency’ test (properly construed, as shall be seen in the next paragraph, as
being designed to ascertain whether or not an individual has the formal status of a State
official), the Court propounded only the ‘effective control’ test. This conclusion is sup-
ported by the evidently stringent application of the ‘effective control’ test which the Court
used in finding that the acts of the contras were not imputable to the United States.
102
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007 (hereinafter the Bosnian
Genocide merits judgment).
which affirmed both points of criticism raised above, by disputing the need to
venture into state responsibility in order to determine the nature of an armed
conflict103 and by explicitly distinguishing between the test of complete con-
trol104 and the test of effective control.105 The Tadic overall control test was also
previously rejected by the International Law Commission in its commentaries to
the Articles on State Responsibility.106
Incidentally, the Genocide case is an excellent example of the immense practical
importance of the various tests of attribution at hand. The ICJ found that Serbia did
not exercise complete control over the Bosnian Serbs, which were therefore not its de
facto organs, and it also found that there was no evidence that Serbia exercised effective
control over the attack on Srebrenica in July 1995 during which the Bosnian Serbs
committed genocide and killed thousands of Bosnian Muslims. Serbia consequently
could not have been held responsible for the commission of genocide, though the ICJ
found that it failed to prevent the Srebrenica genocide. Under the approach of the
ICTY Appeals Chamber, however, Serbia would have been responsible for commit-
ting the Srebrenica genocide, as it undoubtedly participated in ‘coordinating or
helping in the general planning of the non-state actor’s military activity’.107 The
obvious looseness of this test and the lack of connection between the actions of state
organs and the act that is being imputed to the state are why the ICJ remarked that this
test stretched the established paradigms of state responsibility to breaking point.108
My final argument against Tadic was that the authorities that it cited, chief
among them being the Yaeger case109 before the Iran-US Claims Tribunal and
Loizidou, do not support its conclusion that they envisage an overall control test of
attribution. The former case does not concern us at this time, so let us turn to the
alternate, and in my view better, reading of Loizidou, which shows why viewing it as
setting out a test of attribution is unwarranted.110
103
104 105
Ibid., paras 391–3. Ibid., paras 396–400.
106
ILC Commentaries to the Draft Articles, extract from the Report of the International Law
Commission on the work of its Fifty-third session, Official Records of the General Assembly, fifty-sixth
session, Supplement No. 10 (A/56/10), chp.IV.E.2, available at <http://untreaty.un.org/ilc/texts/
instruments/english/commentaries/9_6_2001.pdf> (ILC ASR), at 105–7.
107
Tadic, para. 131.
108
Bosnian Genocide merits judgment, para. 406.
109
Kenneth P. Yeager v. Islamic Republic of Iran, (1987) 17 Iran-US Claims Tribunal Reports 92.
110
For more on Nicaragua and Tadic, see A. de Hoogh, ‘Articles 4 and 8 of the 2001 ILC Articles on
State Responsibility, the Tadic Case and Attribution of Acts of Bosnian Serb Authorities to the Federal
Republic of Yugoslavia’, (2001) 72 BYIL 255; A. Cassese, ‘The Nicaragua and Tadic Tests Revisited in
Light of the ICJ Genocide Judgment in Bosnia’, (2007) 18 EJIL 649; M. Spinedi, ‘On the Non-
Attribution of the Bosnian Serbs’ Conduct to Serbia’, (2007) 5 JICJ 829; R. Goldstone and R. Hamilton,
‘Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International
Criminal Tribunal for the Former Yugoslavia’, (2008) 21 Leiden JIL 95, at 97–103; S. Talmon, ‘The
Responsibility of Outside Powers for Acts of Secessionist Entities’, (2009) 58 ICLQ 493; K. Del Mar,
‘The Requirement of “Belonging” under International Humanitarian Law’, (2010) 21 EJIL 105;
M. Milanovic, ‘What Exactly Internationalizes an Internal Armed Conflict?,’ EJIL: Talk!, 7 May 2010,
available at <http://www.ejiltalk.org/what-exactly-internationalizes-an-internal-armed-conflict/>.
C. The second possible reading of Loizidou

In order to understand Loizidou, it is important to remind ourselves that in the
jurisdiction clauses of all relevant treaties the notion of the state’s jurisdiction is
textually tied to the emergence of the state’s obligation. It is a threshold criterion
which determines whether the state incurs obligations under the treaty, and
consequently whether any particular act of the state can be characterized as
internationally wrongful. As set out in Article 2 of the ILC Articles on State
Responsibility, ‘[t]here is an internationally wrongful act of a State when conduct
consisting of an action or omission: (a) Is attributable to the State under interna-
tional law; and (b) Constitutes a breach of an international obligation of the State.’
The notion of state jurisdiction in human rights treaties is a question which falls
under Article 2(b)—does an obligation exist—not under Article 2(a)—is a particu-
lar conduct attributable to a state.111
We must also remind ourselves of the basic point that human rights treaties
generally contain (at least) two different types of obligations. The first are negative
in nature—the obligation of the state to ‘respect’ human rights, i.e. not to have its
organs, agents, or other persons whose acts are attributable to it commit human
rights violations. The second are positive in nature—the obligation of the state to
‘ensure’ or ‘secure’ the human rights of persons within its jurisdiction, i.e. to
prevent human rights violations committed by third states, private individuals, or
non-state groups generally against other private individuals. Thus, for example, if
the police arbitrarily shoot and kill someone, the state has failed to respect that
person’s right to life, as enshrined in Article 2 ECHR or Article 6 ICCPR. On the
other hand, if the police have reasons to know that a murder is about to take place
and they do nothing to prevent it, the state has failed to secure or ensure the right to
life of the victim.112 This distinction is explicit in the text of some human rights
treaties, and implicit in others, most notably the ECHR.113
Distinguishing between the responsibility of a state for the acts of its own organs
or forces and its responsibility for failing to prevent violations by forces not under
its control has much support in the jurisprudence of the ICJ in particular. So, for
example, in Congo v. Uganda:
The Court, having concluded that Uganda was an occupying Power in Ituri at the relevant
time, finds that Uganda’s responsibility is engaged both for any acts of its military that
violated its international obligations and for any lack of vigilance in preventing violations of
111
112
On the general importance of this distinction for the extraterritorial application of human rights
treaties, see Chapter IV below, esp. Section 4.
113
See generally A. Mowbray, The Development of Positive Obligations under the European Conven-
tion on Human Rights by the European Court of Human Rights (Hart Publishing, 2004); F. Sudre, ‘Les
obligations positives dans la jurisprudence européenne des droits de l’homme’, (1995) Revue trimes-
trielle des droits de l’homme 363.
human rights and international humanitarian law by other actors present in the occupied
territory, including rebel groups acting on their own account.114
Similarly, in the Genocide case the Court found the negative obligation not to
commit genocide implicit in the positive state obligation to prevent genocide under
Article 1 of the Genocide Convention.115 Since it was impossible to prove to the
required degree of certainty that the Srebrenica genocide was attributable to Serbia
under either the test of complete control or the test of effective control,116 the
Court nonetheless found Serbia responsible for failing to prevent that genocide, i.e.
for its own wrongful act of failing to exercise due diligence to prevent violations by
third parties.117
Likewise, in the Velasquez-Rodriguez case, the Inter-American Court held that
. . . in principle, any violation of rights recognized by the Convention carried out by an act
of public authority or by persons who use their position of authority is imputable to the
State. However, this does not define all the circumstances in which a State is obligated to
prevent, investigate and punish human rights violations, nor all the cases in which the State
might be found responsible for an infringement of those rights. An illegal act which violates
human rights and which is initially not directly imputable to a State (for example, because it
is the act of a private person or because the person responsible has not been identified) can
lead to international responsibility of the State, not because of the act itself, but because of
the lack of due diligence to prevent the violation or to respond to it as required by the
Convention.118
The same point has been made repeatedly by the Human Rights Committee in its
interpretation of the ICCPR.119
In light of this distinction Loizidou becomes more comprehensible. Like the
European Commission in the Cyprus cases which preceded Loizidou, the Court did
not necessarily find that all of the acts of the TRNC were attributable to Turkey.
What it did establish was that Turkey, by virtue of its effective overall control over
northern Cyprus, had the positive obligation to prevent human rights violations,
regardless of by whom they were committed. Indeed this is exactly what the Court
itself says—‘[t]he 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 administra-
tion.’120 Of course, bearing in mind that Article 1 ECHR does not make an explicit
114
Armed Activities on the Territory of the Congo (Congo v. Uganda), Judgment, 19 December 2005,
para. 179.
115
Bosnian Genocide merits judgment, paras 166–7.
116
Ibid., paras 393–5, 408–15.
117
118
Velasquez Rodriguez Case, Judgment of 29 July 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988),
para. 172.
119
Human Rights Committee, General Comment No. 31, para. 8; see also Nowak, above note 6,
at 37–41.
120
para. 62 (emphasis added). See also Bankovic, para. 65: ‘the scope of Article 1, at issue in the present
case, is determinative of the very scope of the Contracting Parties’ positive obligations’; R. (on the
application of Al-Skeini and Others) v. Secretary of State for Defence [2007] UKHL 26, [2008] AC 153
distinction between positive and negative obligations this interpretation cannot be
fully conclusive.
If we now take a look from this perspective at just how the ICTY Appeals
Chamber in Tadic relied on Loizidou, we will see that its reliance was misplaced:
A similar approach [to the test of overall control] was adopted by the European Court of
Human Rights in Loizidou v. Turkey (although in this case the question revolved around the
possible control of a sovereign State over a State entity, rather than control by a State over
armed forces operating in the territory of another State). The Court had to determine
whether Turkey was responsible for the continuous denial to the applicant of access to her
property in northern Cyprus and the ensuing loss of control over the property. The
respondent State, Turkey, denied that the Court had jurisdiction, on the grounds that the
act complained of was not committed by one of its authorities but, rather, was attributable
to the authorities of the Turkish Republic of Northern Cyprus (‘TRNC’). The Court
dismissed these arguments and found that Turkey was responsible. In reaching the conclu-
sion that the restrictions on the right to property complained of by the applicant were
attributable to Turkey, the Court did not find it necessary to ascertain whether the Turkish
authorities had exercised ‘detailed’ control over the specific ‘policies and actions’ of the
authorities of the ‘TRNC’. The Court was satisfied by the showing that the local authorities
were under the ‘effective overall control’ of Turkey. 121
First, the Appeals Chamber falls into a common trap when it speaks of Turkey
denying that the European Court had jurisdiction. Turkey did indeed do so, but, as
explained above, the issue under Article 1 ECHR and similar jurisdiction clauses
that was addressed in Loizidou is whether a state, in this case Turkey, had jurisdic-
tion, the issue of the Court’s jurisdiction only being incidental.122
Moreover, the Appeals Chamber mistakenly refers to the European Court being
satisfied that the TRNC was under the ‘effective overall control’ of Turkey. That is
simply not the case. The Court’s test is one of control over an area or a territory, not
control over a non-state actor. For example, the Court says in Loizidou that ‘[i]t is
obvious from the large number of troops engaged in active duties in northern
Cyprus that her army exercises effective overall control over that part of the
island’.123 Similarly, in its practice under Article 2(1) ICCPR, the Human Rights
Committee has also used an ‘effective control’ test, but also only in relation to
control over territory rather than actors.124
In a response to my critique of Tadic, Professor Cassese, the principal author of
the Tadic opinion, concedes as much:
(hereinafter Al-Skeini HL), para. 64 in fine (per Lord Rodger): ‘[T]he alleged conduct of the British
forces [ . . . ] had no legal consequences under the Convention, unless there was that link and the
deceased were within the jurisdiction of the United Kingdom at the time. For, only then would the
United Kingdom have owed them any obligation in international law to secure their rights under
article 2 of the Convention.’
121
Tadic, para. 128 (emphasis added).
122
See Section 1 above.
123
Loizidou (merits), para. 56.
124
See, e.g., Concluding Observations of the Human Rights Committee: Israel, UN Doc. CCPR/
C/79/Add.93 (1998), para. 10. Generally on the spatial model of jurisdiction as control over territory,
areas, or places, see Chapter IV, Section 2 below.
The only point that perhaps Tadić did not sufficiently clarify relates to Loizidou: there the
ECtHR inferred the finding that control over the authorities that had breached the
claimant’s rights was in fact exercised by Turkey from the fact that Turkey had overall
control over the whole area of northern Cyprus (the Court stated that ‘it is not necessary to
determine whether a Contracting Party actually exercises detailed control over the policies
and actions of the authorities in the area situated outside its national territory, since even
overall control of the area may engage the responsibility of the Contracting Party
concerned:’ Loizidou (merits), at para. 56. Thus, the Court preferred to refer to control
over the area (from which it inferred control over the authorities operating there) rather than
directly to control over the authorities that had violated Ms Loizidou’s rights.125
But, of course, Professor Cassese’s argument just begs the question whether the
European Court did indeed infer Turkish control over an actor, the TRNC, from
its control over a physical area of Cyprus. These are undoubtedly two different
concepts. As stated above, and in all fairness both to the ICTY Appeals Chamber
and to Professor Cassese, Loizidou could be reasonably interpreted as setting out a
standard of attribution of all acts of the TRNC to Turkey, but that is not
necessarily so. A wrongful act was certainly imputed to Turkey, but the question
is what that act was: the conduct of the TRNC, or Turkey’s own failure to prevent
human rights violations in the territory over which it had jurisdiction. There are at
least three more indicators that the latter interpretation is to be preferred.
First, though the European Court does frequently use the term ‘imputability’ in
Loizidou, neither in Loizidou nor in any of its subsequent judgments does the Court
use the words ‘attribution’ or ‘imputability’ in direct connection with its effective
overall control of an area test. If it truly was a test of attribution, one could expect
the European Court to have said so at least once. Certainly the Court sometimes
seems to be applying its own rules of attribution, even though it never clearly says
that it is doing so—for example, when it speaks in Ilascu of the Trasnistrian
separatist regime in Moldova being under the ‘decisive influence’ of Russia126—
but the Court always speaks of state jurisdiction, not attribution, as the consequence
of satisfying the effective overall control of an area test.
Secondly, the Court in Loizidou never mentions Nicaragua when it first speaks of
‘effective control’, nor does it mention either Nicaragua or Tadic in any of its later
125
Cassese, above note 110, at 658, n. 17 (emphasis in original).
126
Ilascu, paras 392–4, esp. para. 392: ‘All of the above proves that the “MRT”, set up in 1991–
1992 with the support of the Russian Federation, vested with organs of power and its own administra-
tion, remains under the effective authority, or at the very least under the decisive influence, of the
Russian Federation, and in any event that it survives by virtue of the military, economic, financial and
political support given to it by the Russian Federation.’ Again, it is unclear whether the Court considers
all of the actions of Transnistria (MRT) attributable to Russia or not. Compare this, however, to the
ICJ’s approach in Nicaragua, paras 109–15, later to be affirmed in the Genocide case. Cf. also the
European Court’s judgment in Costello-Roberts v. United Kingdom, App. No. 13134/87, Judgment, 25
March 1993, paras 25–8, where the Court found the UK’s ‘responsibility to be engaged’ with regard to
corporal punishment in private schools, without explaining whether this was because the school’s acts
were attributable to the UK and implicated its negative obligations, or rather whether the UK was
responsible for violating its positive obligations under the ECHR for failing to prevent certain acts by
entities that were not attributable to it.
judgments, nor does it invoke the work of the ILC on state responsibility.127 Surely
it is impossible that the European Court was unaware of the controversy regarding
these two cases. After all, Tadic was a truly landmark, historic judgment which
provoked a lot of debate on a number of issues, while the ICTY’s disagreement with
the ICJ was particularly commented on—one need only recall then ICJ President
Guillaume lamenting before the UN General Assembly on the ICTY’s disregard of
the ICJ’s case law.128 If the European Court was truly adopting an interpretation of
the law of state responsibility at odds with that of the pre-eminent international
court, the ICJ, it would presumably have had the courtesy of saying so, as the ICTY
itself did in Tadic. Yet, not a peep on this matter has ever been heard from the
European Court. Moreover, when Loizidou was delivered, not a single author (and,
one might add, no ICJ President) thought that the European Court was initiating a
conflict of jurisprudence with the ICJ. A cynic might observe, though, that what
the ICTY attempted to do openly, the European Court did by stealth.
Finally, and most importantly, this second reading should be preferred because it
is the only way of reconciling Loizidou with the work of both the ILC and the ICJ
on state responsibility, as well as with the subsequent case law of the European
Court itself, Bankovic in particular. Now, the reader might wonder at my sudden
desire for consistency with Bankovic, but if there is one thing that this case clearly
shows, it is how state jurisdiction is different from state responsibility. The
attribution question in Bankovic was fairly clear—it was undoubtedly the planes
of the allied NATO countries which bombed the TV station in Belgrade, not the
planes of some phantom actor. The difficult question of state responsibility that was
not resolved by the Court in Bankovic since it declared the application inadmissible
was whether the bombing was attributable to NATO as a separate international
legal person, or to some of its member states, or to both. However, even though the
bombing was most certainly attributable to someone, the Court still could not
establish that the NATO states exercised effective overall control over Serbia, and
therefore had obligations under the ECHR to the people of Serbia.
We can observe the exact same situation, though without the complexity added
by the presence of NATO in the equation, in the Al-Skeini case before English
courts, and ultimately the House of Lords. There was no problem of attribution in
Al-Skeini, at least in principle—five of the applicants were shot by British troops
while on patrol in Basra, and one was killed by British troops while he was in
detention. However, their Lordships found that the first five applicants, though
killed by British troops, were still not under British jurisdiction within the meaning
of Article 1 ECHR. The primary ground for their Lordships’ decision was based on
a misinterpretation of Bankovic as holding that the effective control of an area test
cannot apply at all to a territory outside the legal space (espace juridique) of the
127
Indeed, in Ilascu the Court actually does invoke the work of the ILC on state responsibility in
relation to the question of continuing violations—see Ilascu, paras 320–1. It does not, however,
mention the ILC’s work in regard to any question of attribution.
128
See UN Doc. A/55/PV.41, at 7. See also Judge Guillaume’s speech before the Sixth Committee, at
<http://www.icj-cij.org/presscom/index.php?pr=85&p1=6&p2=1&search=%22tunisia%22&PHPSESSID
=95d378896721ed931bcd585cf6290445>.
ECHR.129 The alternative ground for disposing of the Al-Skeini claim, which
interests us here, was that the United Kingdom did not exercise effective overall
control over Basra, and that consequently the United Kingdom owed the applicants
no obligations under the ECHR.130 In other words, while it was beyond doubt that
the killings in Al-Skeini were attributable to the UK, this still did not mean that
the UK had jurisdiction over the victims, or over the area of Basra. Now, one can
certainly claim that this approach is unsatisfactory, as I do, since there is no cogent
reason to impose the jurisdiction threshold on a negative state obligation to refrain
from doing harm.131 What is clear, however, is that state jurisdiction and attribu-
tion are distinct concepts. Ultimately, the latter is an issue of state control over the
perpetrators of human rights violations, while the former is a question of a state’s
control over the victims of such violations through its agents,132 or, more generally,
control over the territory in which they are located.
D. Attribution as a prerequisite for jurisdiction

As we have seen, within the conceptual framework of Article 2 ILC ASR, for a state
to be responsible for a wrongful act the conduct in question must be attributable to
it and amount to a breach of its international obligations—in our case a violation of
a human rights treaty. The existence of state jurisdiction is a threshold question for
the existence of (at least some) of the obligations under the relevant treaties.
Likewise, both attribution and state jurisdiction are issues that go into the sub-
stance of a state’s responsibility, and are properly not questions of a court’s
jurisdiction or the claim’s admissibility, though the court’s jurisdiction ratione
personae, materiae, or loci depends on them.
As a matter of principle or logic, there is no hierarchical relationship between the
issues of attribution and state jurisdiction—they are conceptually independent of
each other. In some cases, however, attribution can actually be a prerequisite or a
preliminary question for the existence of state jurisdiction. When a state exercises
jurisdiction, i.e. control over a foreign territory or individuals, it by definition needs
to do so through its own agents, i.e. persons whose acts are attributable to it.
Turkey could not have had jurisdiction over northern Cyprus without having its
soldiers there, nor could Russia have had jurisdiction over a part of Moldova
without a military presence. For example, had it been disputed in Loizidou that
Turkey had soldiers at all in northern Cyprus, the Court would first have had to
129
Al-Skeini HL, paras 71–7 (per Lord Rodger), paras 109, 127 (per Lord Brown). See further
below, Chapter III, Sections 4 and 6.
130
Ibid., paras 81–4 (per Lord Rodger), para. 132 (per Lord Brown).
131
See below, Chapter IV, Section 4. See also De Schutter, above note 52; J. Cerone, ‘Jurisdiction
and Power: The Intersection of Human Rights Law and the Law of Non-International Armed Conflict
in an Extraterritorial Context’, (2007) 40 Israel L Rev 72.
132
See Al-Skeini HL, para. 64 (per Lord Rodger): ‘It is important therefore to recognise that, when
considering the question of jurisdiction under the Convention, the focus has shifted to the victim or,
more precisely, to the link between the victim and the contracting state.’
establish whether this was the case before examining whether Turkey had control
over that part of the island.133
In that sense, attribution of the conduct of Turkish troops in Cyprus to Turkey
was a question that logically preceded the issue of Turkey’s jurisdiction over
northern Cyprus. Note, however, that the conduct attributed is not necessarily
the act or omission that constitutes the alleged human rights violation, e.g. a taking
of life or property. If the case is examined through the prism of the spatial model of
jurisdiction as state control over an area, the conduct attributed is that through
which the state exercises such control, e.g. through the establishment of a military
government.134 If, on the other hand, the case is examined under the personal
model of jurisdiction as state authority and control over an individual, then there
may well be significant, even total overlap between the state conduct through which
it exercises such authority and control and the conduct which allegedly constitutes
the human rights violation—e.g. an arbitrary deprivation of life or liberty.135
Likewise, once jurisdiction over an area is established, it does not imply attribu-
tion in the sense that anything that occurs within a state’s jurisdiction is attributable
to it. It would still be necessary to establish that the particular act that is alleged to
be a human rights violation is attributable to the state. Or, even if the act in
question is not attributable to the state, its responsibility may also arise for its failure
to implement positive obligations under human rights treaties, e.g. to prevent
human rights violations even by third parties.
4. Conclusion
Conceptual confusion frequently stems from the use of words which have several
distinct meanings, often across different branches of the law. That is the case with
the word ‘jurisdiction’ itself, which, as we have seen, has more meanings than one
can count. ‘Effective control’ is also a homonym—there is the effective control test
for the purposes of attribution, as developed by the ICJ in Nicaragua; there is
133
See, in that regard, Drozd and Janousek v. France and Spain , App. No. 12747/87, Judgment, 26
June 1992, where the Court found, inter alia, that France and Spain could not be held responsible for
the acts of their judges which they had seconded to Andorra. In effect, the Court considered that the
acts of the judges were not attributable to the sending states. This is indeed the customary rule now
codified in Art. 6 ILC ASR, stating that ‘[t]he conduct of an organ placed at the disposal of a State by
another State shall be considered an act of the former State under international law if the organ is acting
in the exercise of elements of the governmental authority of the State at whose disposal it is placed’.
This is, in my view, how the case should be read (confusing though it is in some respects), and in fact
the ILC cites Drozd in its commentary on Art. 6—see ILC ASR Commentary, at 98, n. 141.
134
See also the Behrami case, where the issue of whether the conduct of the French contingent in
KFOR in Kosovo was still attributable to France was logically prior to the issue of whether France exercised
jurisdiction, i.e. effective overall control, over a part of Kosovo—see Behrami and Behrami v. France,
Saramati v. France, Germany and Norway [GC] (dec.), App. Nos 71412/01 and 78166/01, 2 May 2007.
See further M. Milanovic and T. Papic, ‘As Bad As It Gets: The European Court of Human Rights’
Behrami and Saramati Decision and General International Law’, (2009) 58 ICLQ 267, at 271–4.
135
See, e.g., Gentilhomme, Schaff-Benhadji et Zerouki c. France, App. Nos 48205/99, 48207/99,
and 48209/99, Judgment, 23 April 2002.
‘effective control’ as sometimes used in humanitarian law to describe the threshold

of the beginning of a belligerent occupation of a territory; there is effective (overall)
control of an area as a test developed by the European Court for the purpose of
determining a state’s jurisdiction over territory; there is also effective control as used
in international criminal law to describe the relationship a superior has to have over
a subordinate so his command responsibility can be engaged.136
There is in principle nothing wrong with the Bankovic approach to interpreting
the notion of state jurisdiction in Article 1 ECHR by reference to general interna-
tional law. Again, I am not arguing that the word ‘jurisdiction’ should be given a
special meaning autonomous to human rights law. Rather, the word has several
different and equally ordinary meanings in general international law itself, and the
question is hence which of these meanings—which of these concepts—the jurisdic-
tion clauses of human rights treaties refer to.
My argument is simply that as a matter of semantic, textual interpretation the
word ‘jurisdiction’ in various human rights treaties refers to a power that a state
exercises over a territory, and perhaps also over individuals. When the state obtains
this power it must, with due diligence, fulfil its obligation to secure or ensure the
human rights of all persons within its jurisdiction. This power is a question of fact,
of actual authority and control. Despite its name, it is not a legal competence, and it
has absolutely nothing to do with that other notion of jurisdiction in international
law which delimits the municipal legal systems of states. It is moreover not directly
related to the concept of attribution in the law of state responsibility, even though
both jurisdiction and attribution can be based on the same set of facts.
The first step in transforming a jurisprudence of compromise into a jurispru-
dence of principle is to agree on a common vocabulary. Only when it is clear what
the courts are doing can we venture into the far more important issues of why and
whether they should continue doing so.
136
See, e.g., Prosecutor v. Sefer Halilović , Case No. IT-01-48-A, Appeals Chamber, Judgment,
16 October 2007, para. 59
III
Policy Behind the Rule
1. Introduction
The previous chapter of this study was dedicated mainly to establishing the
semantic, ordinary meaning of the word ‘jurisdiction’ used in human rights treaties.
That interpretative inquiry is not yet complete, as one major question still remains
to be answered: whether the word ‘jurisdiction’ is used to connote solely a state’s
control over a territory, or also a state’s authority and control over an individual,
even when that individual is not located in a territory that is, as such, under the
state’s control. The relevance of that question, of course, is in the fact that it is easy
to conceive of situations where a state exercises power over a person in a territory
not under its control—say when Israeli agents abducted Adolf Eichmann from
Argentina, when Russian agents allegedly poisoned Alexander Litvinenko in
London, or when US drones engaged in targeted killings in Pakistan. As will be
explained in the next chapter of this study, there are several possible models of
extraterritorial application under the jurisdiction clauses of the various treaties, and
textual interpretation alone does not suffice to opt for one of them.
This brings us from the realm of interpretation pure and simple, designed to
establish the ordinary linguistic meaning of a legal text, to the realm of construc-
tion, the activity of translating that text, in light foremost of its object and purpose,
into workable legal rules in cases where the text itself is vague and does not provide
a clear answer.1 That type of teleological inquiry into object and purpose, however,
is impossible without first examining the policy considerations that favour or
disfavour the extraterritorial application of human rights treaties, generally or in
any given case, and either normatively or purely as a matter of fact. Indeed, I submit
that it is the tension between these policy considerations that is the real cause of
conflicts in the case law, particularly the case law of the European Court of Human
Rights. It was not really the Court’s failure to distinguish between the different
1
On the interpretation/construction distinction, see L. Solum, Semantic Originalism (2008), available
at <http://ssrn.com/abstract=1120244>, at 67–89. Of course, Art. 31(1) VCLT does not make a
distinction between interpretation and construction, stating only that a ‘treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose’. The distinction, however, is useful to highlight the difference
between the nature of the inquiry in the previous chapter of this study and the one in those that follow.
The VCLT does of course distinguish between interpretation and application—see further R. Gardiner,
Treaty Interpretation (Oxford University Press, 2008), at 26–9.
Policy Behind the Rule 55
meanings and concepts of ‘jurisdiction’ that produced Bankovic. Rather, Bankovic

was the result of the Court’s less than transparent weighing of different policy
considerations, and its ultimate desire to come up with a superficial, legalistic
rationale that would justify making the extraterritorial application of the ECHR
exceptional. As we will see, many of these same policy considerations also inform the
debates on the extraterritorial applicability of domestic human rights guarantees,
which will to an extent also be examined in this part.
A legal analysis would be pointless if it did not examine the policy behind the
rule, but it would also be pointless if it added nothing more. What I will attempt to
establish is how these considerations of policy play out and influence the case law,
and what lessons can be drawn from this. As a normative matter, the law certainly
does not value each of these policy considerations equally, as, again, human rights
treaties are not value-neutral instruments. As we will see, courts have developed
their case law on the extraterritorial application of human rights treaties while
acting out of universalist aspirations that are deeply embedded in the structure of
human rights law. Yet these aspirations have almost always been tempered with
considerations of effectiveness, since a law that would stray so far into pure
normativity that it completely disregarded the realities of international relations
would serve no useful purpose—especially so when it is courts, rather than states
among themselves, which determine what a treaty really means. The law is thus
constantly torn between universality and effectiveness, and niceties of legal princi-
ple are often lost, perhaps inevitably so, in the making of a judicial compromise
between the two.2
2. Universality and Human Dignity
Every single applicant who demands protection against extraterritorial state action
makes an appeal to universality. This, of course, makes perfect sense. If it is true, as
the Universal Declaration of Human Rights exhorts us in its preamble, that ‘the
recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in
the world’ and that states have pledged themselves to achieve ‘the promotion of
universal respect for and observance of human rights and fundamental freedoms’,
why should it then matter whether a state violates a person’s rights within its
territory or outside it? It is still exercising power over the individual, and there is no
reason why that individual should be completely unprotected against the arbitrary
exercise of that power, solely on the basis of his or her location.3
2
Cf. M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument
(Cambridge University Press, 2005), at 16 et seq.
3
See, e.g., R. Lawson, ‘Life after Bankovic: On the Extraterritorial Application of the European
Convention on Human Rights’, in Coomans and Kamminga 83, at 86; O. Ben-Naftali and Y. Shany,
‘Living in Denial: The Application of Human Rights Treaties in the Occupied Territories’, (2003) 37
Israel L Rev 17, at 61–2; T. Meron, ‘Extraterritoriality of Human Rights Treaties’, (1995) 89 AJIL 78,
at 80–1:
Universality and human dignity are undoubtedly the foundational principles of
international human rights law, affirmed in binding treaties and non-binding
declarations alike.4 But universality and human dignity are concepts that are too
amorphous,5 in and of themselves, to overcome the threshold criterion of state
jurisdiction that is found in most human rights treaties. The treaties say what they
say, and the language of their jurisdiction clauses cannot be overridden merely by
invoking universality. This is so not just because of the text, but also because these
provisions have a purpose—they limit the obligations of contracting states to those
situations where these obligations could realistically be met and human rights
effectively protected.
Universality in its purest form—that all states have direct and enforceable human
rights obligations vis-à-vis all individuals in the world—has the drawback of
appearing hopelessly utopian. Whether and how universality can be reconciled
with effectiveness is an issue that we will return to time and again. At the very least,
however, universality, so clearly embraced by all the major treaties, creates a
baseline, a default position: it is the wholesale denial of any rights to an individual
affected by state action, not the extension of those rights, that must be justified. This
is not to say that there is in international law a formal presumption of extraterritori-
al applicability of human right treaties.6 The relevance of this baseline becomes
apparent once rights are recognized or denied on the basis of criteria such as
citizenship or regionalism, when these criteria themselves have to be tested and
justified.
In the case law universality generally emerges as a response to attempts to curtail
the scope of application of human rights treaties. Although, as we will see, courts
will invoke other considerations, such as sovereignty or citizenship, when denying
that individual rights guarantees apply extraterritorially, they will invoke universal-
ity when accepting that such guarantees do indeed apply. It is, in other words, a
moral appeal, an appeal to conscience that courts will always turn to in justifying an
expansive approach to rights protection.7
In view of the purposes and objects of human rights treaties, there is no a priori reason to
limit a state's obligation to respect human rights to its national territory. Where agents of
the state, whether military or civilian, exercise power and authority (jurisdiction, or de facto
jurisdiction) over persons outside national territory, the presumption should be that the
state's obligation to respect the pertinent human rights continues. That presumption could
be rebutted only when the nature and the content of a particular right or treaty language
suggest otherwise.
4
Similarly, see C. Keitner, ‘Rights Beyond Borders’, (2011) 36 Yale J. Int’l L. (forthcoming), draft
available on SSRN at <http://ssrn.com/abstract=1480886>, esp. at 7 et seq.
5
On the largely nebulous—and instrumentalist—role of ‘dignity’ in human rights adjudication, see
especially C. McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, (2008) 19
EJIL 655.
6
See above Chapter I, Section 3, esp. note 38.
7
This is apparent, for example, from the Human Rights Committee’s jurisprudence, starting from
Lopez Burgos v. Uruguay (1981) 68 ILR 29, para. 12.3: ‘it would be unconscionable to so interpret the
responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the
Covenant on the territory of another State, which violations it could not perpetrate on its own
territory’.
Perhaps somewhat surprisingly, universality also has a darker, less human rights
friendly side, at least from the standpoint of the individual applicants. It is
commonly said that a corollary of the universality of human rights is their indivisi-
bility and interdependence,8 and the European Court deftly used these aspects of
universality against the applicants in the Bankovic case.
The applicants argued that the notion of jurisdiction in Article 1 ECHR was
flexible, in that it did not require in all circumstances a level of state control
necessary to secure the respect of all rights guaranteed by the ECHR. In the
applicants’ view, the fact that the respondent states could not possibly be expected
to, say, secure the freedom of religion or the right to free and fair elections to the
inhabitants of Serbia that they were bombing did not mean that the respondent
states were absolved from any human rights obligations, most notably their obliga-
tion to respect the applicants’ right to life. The Court disagreed, holding that
. . . the applicants’ submission is tantamount to arguing that anyone adversely affected by an
act imputable to a Contracting State, wherever in the world that act may have been
committed or its consequences felt, is thereby brought within the jurisdiction of that
State for the purpose of Article 1 of the Convention. The Court is inclined to agree with
the Governments’ submission that the text of Article 1 does not accommodate such an
approach to “jurisdiction”. Admittedly, the applicants accept that jurisdiction, and any
consequent State Convention responsibility, would be limited in the circumstances to the
commission and consequences of that particular act. However, the Court is of the view that
the wording of Article 1 does not provide any support for the applicants’ suggestion that the
positive obligation in Article 1 to secure “the rights and freedoms defined in Section I of this
Convention” can be divided and tailored in accordance with the particular circumstances of
the extra-territorial act in question and, it considers its view in this respect supported by the
text of Article 19 of the Convention. Indeed the applicants’ approach does not explain the
application of the words “within their jurisdiction” in Article 1 and it even goes so far as to
render those words superfluous and devoid of any purpose.9
The Court in Bankovic thus adopted an all or nothing conception of the extraterri-
torial application of the ECHR—though, as we will see, the Court’s case law is
actually neither very strict nor consistent in applying this approach. The idea
apparently behind it is that the indivisibility of human rights, as an aspect of
their universality, is essential for protecting the integrity of the human rights regime.
In other words, the Court is concerned that dividing and tailoring human rights in
an extraterritorial context would serve to impermissibly dilute them, and diminish
the regime as a whole. To what extent that concern is justified remains to be seen,
but first we need to examine some of the responses to universality.
8
See, e.g., para. 5 of the Vienna Declaration of the World Conference on Human Rights, which
proclaims that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’.
Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23, 12 July 1993. Note
that the indivisibility and interdependence of human rights are not a necessary corollary of universality,
but these are ideas which are frequently associated.
9
Bankovic and Others v. Belgium and Others [GC] (dec.), App. No. 52207/99, 12 December 2001,
para. 75.
3. Sovereignty and Territory
The most common argument against extending fundamental rights guarantees to

persons outside a state’s borders is that these rights were meant to operate between a
state and the inhabitants of its own territory. This argument has figured most
prominently in the post-9/11 debates and litigation on the treatment and process
that is due to suspected terrorists detained in Guantanamo, in Afghanistan, or in
Iraq. Indeed, the motivation of the Bush administration behind the creation of a
detention facility in Guantanamo, as opposed to somewhere in the United States
proper, was precisely that formal categories such as sovereignty and territory would
diminish or extinguish the government’s obligations towards persons detained
there, both under international and under domestic law.10
The United States has in particular relied on a restrictive interpretation of Article
2(1) ICCPR, which provides that each state party ‘undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant’. According to the United States, the language
of this provision is clear, as it requires that an individual be both within a state’s
territory and subject to its jurisdiction in order to have rights vis-à-vis that state—an
interpretation that is in the US view supported by the ICCPR’s negotiating history.
Since Guantanamo is a territory under the sovereignty of Cuba that has only been
leased by Cuba to the United States, it is not US territory for the purposes of Article
2(1) ICCPR, thus rendering the treaty inapplicable.11
The US government made the same argument with regard to the CAT, though
here its textual argument was significantly weakened by the fact that the CAT’s
many jurisdiction clauses (for example, in Articles 2, 5, and 16) designate the scope
of each party’s obligations to ‘any territory under its jurisdiction’. Unlike with the
ICCPR, the word ‘jurisdiction’ in the CAT refers to territory itself, and as explained
above, the ordinary meaning of this word is broader than legal title or sovereignty
and relates to factual control over territory. In respect of the CAT, therefore, the US
10
See Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys
General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Department of Defense,
28 December 2001, available in K. Greenberg et al. (eds), The Torture Papers (Cambridge University
Press, 2005), at 29 et seq.
11
See, e.g., the Opening Statement of Matthew Waxman, Head of US Delegation before the UN
Human Rights Committee, 17 July 2006, available at <http://2001-2009.state.gov/g/drl/rls/70392.
htm>; Reply of the Government of the United States of America to the Report of the Five UN Special
Rapporteurs on Detainees in Guantanamo Bay, Cuba (2006), available at <http://www.asil.org/pdfs/
ilib0603212.pdf>, at 25 et seq. For a detailed defence of the US argument, see M. Dennis, ‘Application
of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’,
(2005) 99 AJIL 119, and M. Dennis and A. Surena, ‘Application of the International Covenant on
Civil and Political Rights in Times of Armed Conflict and Military Occupation: The Gap Between
Legal Theory and State Practice’, (2008) EHRLR 714; for a rebuttal see N. Rodley, ‘The Extraterrito-
rial Reach and Applicability in Armed Conflict of the International Covenant on Civil and Political
Rights: a Rejoinder to Dennis and Surena’, (2009) EHRLR 628; N. Lubell, Extraterritorial Use of Force
Against Non-State Actors (Oxford University Press, 2010), at 195 et seq.
government relied primarily on its argument that the law of armed conflict as lex
specialis displaced any norms of human rights law.12
The position that human rights treaties generally have no scope of extraterritorial
application was rejected both by the Human Rights Committee13 and by the
Committee Against Torture,14 while the International Court of Justice also af-
firmed that the ICCPR may apply extraterritorially, particularly in territories under
belligerent occupation.15 Of course, authority is not a substitute for argument, and
the fact that the Human Rights Committee and the ICJ adopted a position does
not necessarily make that position correct. The US textual argument in respect of
the ICCPR is a serious one and needs to be examined more fully, as it will be in
Chapter IV of this study.16
As far as the US argument pertains to the CAT or human rights treaties generally
it is untenable, not just on the text of the various jurisdiction clauses, but more
importantly in the policy behind the argument—or the lack of any policy recog-
nized by international law as legitimate. It is one thing to say that, universality and
human dignity notwithstanding, states should not have obligations under human
rights law that they could not realistically be expected to keep. But when such
obligations can be realistically kept, i.e. when the state exercises control over a
territory even if the sovereignty over the territory nominally belongs to someone
else, why should the title over the territory matter?17 This is especially so, of course,
for situations that were manifestly created with the purpose of evading otherwise
applicable legal rules.18
Certainly, sovereignty and territory have always had a central place in interna-
tional law. As noted by Oppenheim, ‘a State without a territory is not possible . . . it
is the space within which the State exercises its supreme, and normally exclusive,
authority’.19 But sovereignty has equally never been a matter of naked title or pure
form. Above all else, its source is in the effectiveness of state power over a territory
and its inhabitants. At the same time, as explained by Judge Huber serving as
12
See, e.g., the Opening Remarks by John Bellinger, Legal Adviser, US Department of State,
before the UN Committee Against Torture, 5 May 2006, available at <http://www.state.gov/g/drl/rls/
68557.htm>.
13
Concluding Observations of the Human Rights Committee: United States of America, UN Doc.
CCPR/C/USA/CO/3/Rev.1, 18 December 2006, para. 10.
14
Conclusions and Recommendations of the Committee against Torture: United States of
America, UN Doc. CAT/C/USA/CO/2, 25 July 2006, paras 14 and 15.
15
Opinion, 9 July 2004, ICJ Reports 2004, at 136, paras 109–11; Armed Activities on the Territory of the
Congo (Congo v. Uganda), Judgment, 19 December 2005, ICJ Reports 2005, at 168, paras 179,
216–17.
16
See Chapter IV, Section 5 below.
17
The term ‘sovereignty’ can be used to connote either the actual authority and control that a state
possesses over a territory, or its mere title or ownership over the territory, and it is the latter that should
in my view be perfectly irrelevant for the application of human rights treaties. On these two meanings
of ‘sovereignty’, see generally R. Wilde, International Territorial Administration: How Trusteeship and
the Civilizing Mission Never Went Away (Oxford University Press, 2008), at 99–101 and the sources
cited therein.
18
See also Section 7 below.
19
R.Y. Jennings and A.D. Watts (eds), Oppenheim’s International Law (9th edn, 1992), at 563–4.
arbitrator in the Island of Palmas case, international law does not protect sovereignty
for its own sake:
Territorial sovereignty, as has already been said, involves the exclusive right to display the
activities of a State. This right has as corollary a duty: the obligation to protect within the
territory the rights of other States, in particular their right to integrity and inviolability in
peace and in war, together with the rights which each State may claim for its nationals in
foreign territory. Without manifesting its territorial sovereignty in a manner corresponding
to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself
to its negative side, i.e. to excluding the activities of other States; for it serves to divide
between nations the space upon which human activities are employed, in order to assure
them at all points the minimum of protection of which international law is the guardian.20
In its Namibia advisory opinion, the ICJ likewise emphasized that
The fact that South Africa no longer has any title to administer the Territory does not release
it from its obligations and responsibilities under international law towards other States in
respect of the exercise of its powers in relation to this Territory. Physical control of a
territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts
affecting other States.21
When a state hides behind its lack of sovereignty over a territory that it nonetheless
controls to deny the applicability of human rights treaties to the inhabitants of this
territory it is actually turning the notion of sovereignty on its head, by assigning
legal significance to a sovereignty deprived of all effectiveness. The idea that, rather
than the United States, it is Cuba that has to guarantee the rights of persons
detained at Guantanamo Bay, does not pass muster even on its own merits,
let alone when confronted with the universality imperative behind all human rights
treaties.
International law is a territorial system, as its principal subjects, states, are by
their very definition territorial entities. But there is nothing magical about state
sovereignty. Title or no title, its foundation is power, ‘physical control over
territory’. When a state exercises such power outside its borders, something that
states have done throughout history, the mere lack of sovereignty on its part is not
an excuse for denying the application of a human rights treaty, particularly because
the text of the treaties (with the possible exception of the ICCPR) does not refer to
title, but to jurisdiction over territory. Again, while it is perfectly true that the
Westphalian international order rests on territoriality, and that international law
provides for the authority of states to administer their territory and be free of
outside interference,22 it makes no sense to condition respect for human rights on
the lawfulness of a state’s control over territory, rather than on the fact of such
control, and even less so to actually require title over the territory in question.
20
Island of Palmas Arbitration, (1949) 2 UNRIAA 829, 839.
21
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971,
16, at 54, para. 118.
22
See, e.g., K. Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in
American Law (Oxford University Press, 2009), at 5–12.
Imagine, moreover, if the applicability of a human rights treaty was raised with
regard to a territory whose title is disputed between two states or is even truly
uncertain, as is frequently the case. Would a court examining the issue actually have
addressed as a preliminary question the merits of the territorial dispute, rather than
focus on the state which actually controls the territory, as a matter of fact? Surely
not.
In short, those who argue that title over territory should matter for determining
the scope of human rights need to give a good normative reason as to why this
should be the case. Invoking Westphalia just does not cut it. To my mind at least, it
is unimaginable that in the wake of the Second World War states could have
created a regime in which Nazi Germany would have had no human rights
obligations towards the subjugated millions of Poland, Russia, or the rest of
occupied Europe, merely because it did not have legal title over the territories
that it controlled, when it is the slaughter of those same millions which gave birth to
the human rights movement in the first place. Hence, though this study is devoted
to the extraterritorial application of human rights treaties, this is to an extent a
misnomer: the application of these treaties should never depend on naked title over
a territory, but on actual power exercised over it.
4. Sovereignty and Comity to the Territorial State

A. The sovereignty of Iraq in Al-Skeini
Sovereignty has given rise to one more argument for curtailing the extraterritorial
scope of human rights treaties: that requiring state agents to respect their human
rights obligations while acting in the territory of another state would amount to an
infringement on the sovereignty of that state. This argument is at least partly based
on the fallacy, discussed above,23 that the notion of state jurisdiction in human
rights treaties is the same concept of jurisdiction that delimits the municipal legal
systems of states, rather than on factual power over territory. As we have seen, the
greatest exponent of this fallacy is the European Court in Bankovic, where it stressed
that the extraterritorial application of the ECHR can only be exceptional, and
purportedly needs to be justified on the grounds of general international law. But
the European Court is not alone. In the House of Lords’ decision in Al-Skeini, the
question presented was whether the United Kingdom exercised jurisdiction over
Basra in the sense of Article 1 ECHR. Lord Carswell considered as follows:
I would only observe that any extraterritorial jurisdiction of one state is pro tanto a
diminution or invasion of the territorial jurisdiction of another, which must lead one to
the conclusion that such extra-territorial jurisdiction should be closely confined. It clearly
exists by international customary law in respect of embassies and consulates. It has been
conceded by the Secretary of State that it extends to a military prison in Iraq occupied and
controlled by agents of the United Kingdom. Once one goes past these categories, it would
23
See Chapter II, Section 2.
in my opinion require a high degree of control by the agents of the state of an area in another
state before it could be said that that area was within the jurisdiction of the former. The test
for establishing that is and should be stringent, and in my judgment the British presence in
Iraq falls well short of that degree of control.24
In other words, according to his Lordship (and pursuant to his reading of Banko-
vic), it would be an intrusion upon Iraq’s sovereignty to apply the ECHR to the
British troops stationed there. With respect, this position shows just how misguid-
ed it is to treat the concept of ‘jurisdiction’ in the ECHR as being identical to the
notion of jurisdiction in general international law. As if Iraq’s sovereignty was not
already infringed by an invasion and occupation of its territory by hundreds of
thousands of foreign troops—it would actually be the imposition of human rights
obligations on the occupiers that would violate it. This is not a position that is in
my view tenable, though, as we will see, this is not to say that it is not inspired by
some very real fears and concerns.
B. Canadian case law on sovereignty and comity

Similar considerations have informed some municipal case law on the extraterrito-
rial application of domestic human rights guarantees. The most instructive example
in that regard is the Canadian jurisprudence on the extraterritorial application of
the Canadian Charter of Rights and Freedoms.25 Like most constitutions, and
some human rights treaties, the Charter contains no provision dealing with its
territorial scope of application. All it says in s. 32(1) is that it applies to govern-
mental action, be it the action of the federal government, that of the provinces, or
of the local authorities.26 Rules on the Charter’s extraterritorial application thus
have to be constructed by Canadian courts. The first case that I will examine is
Hape before the Supreme Court of Canada,27 in importance (and internal consis-
tency) arguably the Canadian Bankovic.
The facts of the case were as follows. The Royal Canadian Mounted Police
(RCMP) were conducting a money laundering investigation against the appellant.
The appellant ran a company in the Turks and Caicos Islands, the offices of which
the RCMP wished to search as part of their investigation. They obtained permis-
sion to do so from the Turks and Caicos official in charge of all police investiga-
tions. They conducted three separate searches, and were at all times accompanied
by the said Turks and Caicos official. However, the RCMP did not have a judicial
warrant for these searches, either from a Canadian court or from a court in the
Turks and Caicos. When documents seized in these searches were used against him
24
R. (on the application of Al-Skeini and Others) v. Secretary of State for Defence [2007] UKHL 26
[2008] AC 153 (hereinafter Al-Skeini HL), para. 97.
25
For a general overview, see Keitner, above note 4, at 26 et seq.
26
S. 32(1) reads as follows: ‘This Charter applies (a) to the Parliament and government of Canada in
respect of all matters within the authority of Parliament including all matters relating to the Yukon
Territory and Northwest Territories; and (b) to the legislature and government of each province in respect
of all matters within the authority of the legislature in each province.’
27
R. v. Hape, 2007 SCC 26 (hereinafter Hape).
at his trial in Canada, the appellant argued that the searches violated his Charter
right to be free from unreasonable search and seizure, and that the documents
should be excluded. The question thus presented to the Supreme Court was
whether the Charter applied to the acts of Canadian organs or agents when they
were acting extraterritorially.
Justice LeBel began the discussion for the majority as follows:
Section 32 does not expressly impose any territorial limits on the application of the Charter.
By virtue of state sovereignty, it was open to the framers to establish the jurisdictional scope
of the Charter. Had they done so, the courts of this country would have had to give effect to
a clear expression of that scope. However, the framers chose to make no such statement.
Consequently, as with the substantive provisions of the Charter, it falls upon the courts to
interpret the jurisdictional reach and limits of the Charter. Where the question of applica-
tion involves issues of extraterritoriality, and thereby necessarily implicates interstate rela-
tions, the tools that assist in the interpretation exercise include Canada's obligations under
international law and the principle of the comity of nations. As I will explain, the issue of
applying the Charter to activities that take place abroad implicates the extraterritorial
enforcement of Canadian law. The principles of state jurisdiction are carefully spelled out
under international law and must guide the inquiry in this appeal.28
Emphasizing the importance of the principle of sovereign equality in international
law,29 of comity as an interpretative principle,30 and of the need for domestic law to
conform to international law,31 Justice LeBel held that the extraterritorial reach of
the Charter must be informed by these considerations, most notably by interna-
tional legal rules on jurisdiction.32 After reviewing earlier case law,33 Justice LeBel
disapproved of the Court’s previous position that the Charter will apply to acts of
Canadian law enforcement authorities engaged in governmental action where the
application of Charter standards will not conflict with the concurrent territorial
jurisdiction of the foreign state,34 and concluded that
[t]he issue in these cases is the applicability of the Charter to the activities of Canadian
officers conducting investigations abroad. The powers of prescription and enforcement are
both necessary to application of the Charter. The Charter is prescriptive in that it sets out
what the state and its agents may and may not do in exercising the state’s powers.
Prescription is not in issue in the case at bar, but even so, the Charter cannot be applied if
compliance with its legal requirements cannot be enforced. Enforcement of compliance with
the Charter means that when state agents act, they must do so in accordance with the
requirements of the Charter so as to give effect to Canadian law as it applies to the exercise of
the state power at issue. However, as has already been discussed, Canadian law cannot be
enforced in another state’s territory without that state’s consent. Since extraterritorial
enforcement is not possible, and enforcement is necessary for the Charter to apply,
extraterritorial application of the Charter is impossible.35
28 29
Ibid., para. 33 (per LeBel J). Ibid., paras 40–6 (per LeBel J).
30 31
Ibid., paras 47–52 (per LeBel J). Ibid., paras 53–6 (per LeBel J).
32 33
Ibid., paras 57–65 (per LeBel J). Ibid., paras 70–82 (per LeBel J).
34
Ibid., paras 83–4 (per LeBel J), citing R. v. Cook [1998] 2 SCR 597.
35
Ibid., para. 85 (per LeBel J).
As noted by a commentator, if you are struggling to digest the logic of this passage,
you are not alone.36 Recall the fundamental distinction between the jurisdiction to
enforce, which can extraterritorially only be exercised lawfully with the territorial
state’s consent, and the jurisdiction to prescribe, the extraterritorial exercise of
which is in no way exceptional.37 Contrary to what the learned Justice says, it is
precisely prescription that is at issue in the case at bar, if the Charter’s scope of
application is to be determined by reference to international rules on the scope of
domestic law generally. For a state to prescribe that its organs and agents must
respect the human rights of persons outside the state’s borders is no more an
exorbitant exercise of the jurisdiction to prescribe than, say, if the state’s prohibi-
tion of murder extended to the state’s nationals or agents abroad. The enforcement
of this prescription, on the other hand, is limited to the state’s own territory and its
own courts and organs. Such were the circumstances of the present case, as the
appellant sought to enforce the provisions of the Charter in Canada before a
Canadian court, not a court of the Turks and Caicos.
The mere application of a law, the Charter, to an extraterritorial situation is not
enforcement, but prescription. The sovereignty of the Turks and Caicos was only
implicated in the extraterritorial act of the search itself, to which the officials of the
Turks and Caicos consented.38 Had Canadian law actually commanded the police
or other officials of the Turks and Caicos to act in a certain way, that indeed would
have been an exorbitant exercise of the jurisdiction to prescribe, and a violation of
the sovereignty of the territorial state. But, again, international law simply does not
require the consent of the territorial state when another state is merely applying its
law to its own officials or nationals who are acting extraterritorially.39
Justice LeBel added yet another twist to the territorial scope of the Charter, by
leaving open the possibility of its application if Canada’s agents acting abroad
violated a human rights treaty to which Canada is a party.40 But of course it is the
extraterritorial applicability of these very human rights treaties that is so hotly
contested—not to mention the fact that a situation where the territorial scope of a
state’s constitution is defined by the scope of treaties to which the state is a party,
and not by the constitution itself, can only be qualified as bizarre. However, the
Court’s purpose in adopting this approach seems to be obvious—it wanted to keep
its options open in cases in which Canadian agents operating abroad did something
more morally repugnant than a mere warrantless search and seizure.41
This methodologically unhappy state of affairs has persisted in subsequent
Canadian case law. In the Afghan Detainees case, two non-governmental organiza-
tions brought an application for judicial review on behalf of non-Canadian
36
J. Stribopoulos, ‘The Charter’s Unstated Territorial Limits: R. v. Hape’, The Court, 8 June 2007,
available at <http://www.thecourt.ca/2007/06/08/the-charters-unstated-territorial-limits-r-v-hape/>.
37
See above, Chapter II, Section 2.B.
38
See also Stribopoulos, above note 36; P.H. Verdier, ‘R. v. Hape’, (2008) 102 AJIL 143, 147;
Keitner, above note 4, at 30–1.
39
Cf. Hape, paras 106–7 (per LeBel J).
40
Ibid., para. 101 (per LeBel J).
41
In that regard, see the discussion of the Khadr case at Section 5.C. below.
nationals detained by Canadian forces in Afghanistan, claiming that these detainees

were at significant risk of being subjected to torture if transferred by the Canadian
forces to Afghan authorities. In its decision,42 the Federal Court applied the Hape
judgment of the Supreme Court, and asked the following question: ‘whether the
Government of Afghanistan has consented to the application of Canadian law,
including the Charter, to the conduct of Canadian Forces personnel in relation to
the detention of individuals on Afghan soil’.43 It was indisputable that the Afghan
government had consented to the presence and operation of Canadian troops
within its territory. However, according the Court, there was no evidence that
the Afghan government had agreed to the ‘wholesale forfeiture of its sovereignty’,
that the application of Canadian law would presumably entail, by consenting to the
presence of foreign troops.44 In particular, ‘there has been no consent by the
Government of Afghanistan to having Canadian Charter rights conferred on its
citizens, within its territory.’45 The Court thus concluded that Afghan detainees in
Canadian custody were protected solely by international humanitarian law, not
Canadian law. The decision of the Federal Court was affirmed by the Federal Court
of Appeal on identical grounds.46
C. Comity as a distraction from effectiveness

The reasoning behind this Canadian line of cases proceeds from a faulty premise.
Again, international law—the law of jurisdiction in particular—in no way prohibits
states from regulating through their domestic law the actions of their agents when
they are acting abroad. States do this all the time, and they do not need the consent
of the territorial state to extend the applicability of their laws. In fact, in the Afghan
Detainees case the appellants rightly pointed out that Canadian criminal and
military legislation extended to the acts of Canadian soldiers abroad.47 If it was
in conformity with international law, as the Canadian courts appeared to have
thought it was, to extend the criminal laws of Canada to Canadian soldiers in
Afghanistan, why would extending the norms of the Charter of Rights and Free-
doms to those same soldiers be a violation of Afghan sovereignty? That this
regulation may also involve creating rights in domestic law for foreigners affected
by the extraterritorial acts of state agents is immaterial. The exercise of prescriptive
jurisdiction is limited to the state organs or agents in question, as domestic law is
commanding them—not the people of the territorial state whose lives they might
affect—how they may or may not behave.
42
Amnesty International Canada & British Columbia Civil Liberties Association v. Chief of the Defence Staff
for the Canadian Forces et al., 2008 FC 336 (hereinafter Afghan Detainees FC).
43
Ibid, paras 145, 151 et seq.
44
Ibid., para. 157.
45
Ibid., para. 172.
46
Amnesty International Canada & British Columbia Civil Liberties Association v. Chief of the Defence Staff
for the Canadian Forces et al., 2008 FCA 401.
47
Afghan Detainees FC, paras 269–72.
The sovereignty-as-comity rationale for denying the extraterritorial applicability
either of a human rights treaty, as in Lord Carswell’s judgment in Al-Skeini, or of a
domestic human rights instrument, as in Hape and Afghan Detainees, is nothing
more than a distraction, the reddest of herrings. The organs or agents of a state can
be present in the territory of another state lawfully or unlawfully. The sovereignty
of the territorial state has either already been infringed, or that state has given its
consent to the presence of foreign agents on its soil. Its sovereignty is therefore a
non-issue. Where the true policy behind these cases lies is not in comity towards the
sovereignty of the territorial state, but in the fear that an extraterritorial legal regime
would prove ineffective, impracticable, or unworkable.
Al-Skeini, for instance, is imbued with the concern that the ECHR, adapted to
European mores and sensibilities, is unsuitable for application in a country like
Iraq, as we will soon see.48 In Hape, on the other hand, Justice LeBel makes an
enormous effort to outline what he calls ‘the theoretical and practical difficulties
arising out of an attempt to apply Charter standards outside Canada’.49 He thus
argues, for example, that extending Charter guarantees extraterritorially would
hamper cooperative investigations, precisely at a time when criminal activity has
become globalized.50 It is above all effectiveness, or the lack thereof, that is the
major theme of Justice LeBel’s opinion.51 Likewise, in the Afghan Detainees case the
Federal Court expressed its concern that if the Charter were to be applied extra-
territorially
. . . an Afghan insurgent detained by members of the Canadian Forces in Kandahar province
could end up having entirely different rights than would Afghan insurgents detained by
soldiers from other NATO partner countries, in other parts of Afghanistan. The result
would be a hodgepodge of different foreign legal systems being imposed within the territory
of a state whose sovereignty the international community has pledged to uphold.
This would be a most unsatisfactory result, in the context of a United Nations-sanctioned
multinational military effort, further suggesting that the appropriate legal regime to govern
the military activities currently underway in Afghanistan is the law governing armed
conflict—namely international humanitarian law.52
Of course, there is a policy response to each of these policy objections. For example,
rather than denying the applicability of the Charter altogether, the Hape Court
could simply have said that Canadian agents engaging in searches abroad nonethe-
less have to obtain warrants from Canadian courts, and that Parliament should
accommodate that requirement by passing the necessary legislation.53 Or, the
Court could have interpreted the reasonableness requirement of the substantive
Charter rule as saying that an extraterritorial search would be reasonable under the
Charter if it conformed to the domestic law of the state where it was conducted,
subject perhaps to some minimum standard. That this latter approach would
48 49
See Section 6 below. Hape, para. 86 (per LeBel J).
50
Ibid., paras 96 et seq (per LeBel J).
51
See also Stribopoulos, above note 36; Keitner, above note 4, at 31.
52
Afghan Detainees FC, paras 275–6.
53
See Stribopoulos, above note 36.
significantly reduce Charter guarantees in some cases of searches and seizures, as

Justice LeBell pointed out in his judgment,54 is to an extent a valid concern for the
integrity of the Charter regime. Still, however, this is not a sufficient justification
for his all or nothing approach, as other rights, such as the right to life or the
prohibition of torture, would not and could not be interpreted downwards in a
similar fashion in an extraterritorial context. When it comes to the Afghan Detainees
case, a ‘hodgepodge’ of legal norms is unavoidable in situations involving a plurality
of actors, not just in relation of their own municipal legal systems, but also in
respect of the many different treaties to which these states may or may not be
parties. That IHL applies, moreover, is in and of itself not reason enough for
human rights law not to apply, particularly when that law—unlike IHL—can be
judicially enforced.55
Whether these policy responses are considered to be persuasive is for the time
being beside the point. The point that I do wish to make is that it is these policy
debates that truly matter, while comity and the concern for the territorial state’s
sovereignty are an entirely fictitious objection to the extraterritoriality of human
rights guarantees, be they domestic or international. This is not to say that serious
legal problems could not arise from such extraterritorial application, even when the
application itself or its specifics are uncontested—an issue that I will address in the
section on norm conflicts and effectiveness below.56 Now, however, I will turn to
the much more central place that sovereignty and citizenship play when the
extraterritorial application of domestic human rights guarantees is at stake.
5. Sovereignty, Citizenship, and the Social Contract

A. US case law on citizenship and extraterritoriality
The extraterritorial application of domestic human rights norms exposes a set of
considerations that is largely missing, at least superficially, from the judicial
discourse on the extraterritorial application of international human rights treaties.
While it is impossible to read human rights treaties without acknowledging their
universalist aspirations, domestic constitutions, including their bills of rights, have
an alternative reading—that of a social contract operating between the members of
the polity that adopted it. From this standpoint, it is citizenship, above all else, that
determines the constitutional protections that individuals are entitled to. In the
constitution-as-social-contract scheme of things, foreigners, aliens, or others gener-
ally cannot expect to be entitled to an equal standard of treatment as those
belonging to the same community.
Some jurisdictions explicitly give central importance to citizenship, while in
others the reliance on citizenship tends to be more implicit. The best example of the
54
Hape, para. 88 (per LeBel J).
55
On the co-application of human rights and IHL, see further Chapter V below.
56
See Section 9.
former is the United States.57 Consider, for instance, the Verdugo-Urquidez case,58
whose facts are, but for one important point, identical to the Canadian Hape case
that we just examined. A US agent conducted the search of the premises in Mexico
of a Mexican national suspected of drug trafficking. He had no warrant to do so
from a US court. At his trial in the United States, the defendant challenged the
admissibility of the evidence obtained in the search, on the basis of the Fourth
Amendment to the US Constitution.59
The trial court agreed that the evidence should be dismissed, and so did the
majority of the Court of Appeals. The dissenting judge, however, ‘viewed
the Constitution as a “compact” among the people of the United States, and the
protections of the Fourth Amendment were expressly limited to “the people”’.60
This was the theme taken up by Chief Justice Rehnquist, writing for the plurality of
the Supreme Court. In his view, the available historical data showed that ‘the
purpose of the Fourth Amendment was to protect the people of the United States
against arbitrary action by their own Government; it was never suggested that the
provision was intended to restrain the actions of the Federal Government against
aliens outside of the United States territory’.61
Chief Justice Rehnquist distinguished the Supreme Court’s earlier decision in
Reid v. Covert,62 which involved an attempt by Congress to subject the wives of
American servicemen to trial by military tribunals without the protection of the
Fifth and Sixth Amendments to the US Constitution, which the Court found to be
unconstitutional. In Chief Justice Rehnquist’s view, the basis of that decision was
not some broader notion of extraterritoriality, but the fact that the individuals
concerned were US citizens.63 He also distinguished previous cases that recognized
the constitutional rights of aliens (lawfully) present on US territory,64 as well as the
Lopez-Mendoza case,65 where a majority of the Supreme Court assumed that illegal
aliens present on US soil also possessed constitutional rights, stating that these illegal
aliens ‘were in the United States voluntarily and presumably had accepted some
societal obligations; but respondent had no voluntary connection with this country
that might place him among “the people” of the United States’.66 He concluded by
emphasizing the fact that, for better or for worse, we live in a world of nation-states
in which the US government must be able to function effectively in the company of
other sovereign nations. Applying the Constitution extraterritorially would have
significant and deleterious consequences for the United States in conducting activ-
ities beyond its boundaries, particularly when it came to the use of armed force.67
57
For a comprehensive overview of the extraterritoriality of the US Constitution, see Raustiala,
above note 22.
58
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
59
Which reads: ‘[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.’
60 61
Verdugo-Urquidez, at 264. Ibid., at 266.
62 63
Reid v. Covert, 354 U.S. 1 (1957). Verdugo-Urquidez, at 270.
64 65
Ibid., at 271. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).
66 67
Verdugo-Urquidez, at 273. Ibid., at 273–5.
Chief Justice Rehnquist’s reasoning thus turned around two principal strands of
policy: citizenship and effectiveness.68 Justices Kennedy and Stevens filed separate
opinions concurring in the judgment, but downplaying the importance of citizen-
ship. Justice Kennedy in particular emphasized the role of effectiveness, by arguing
that what governs the disposition of the case is that the application of the Fourth
Amendment requirements for a reasonable search and seizure in an extraterritorial
context would have been anomalous and impracticable.69 Justices Brennan and
Marshall dissented in a universalist vein, arguing that by exercising its power and
enforcing its law against an individual outside its territory, the United States is
precluded from arguing that the Constitution does not travel with its agents.70
Citizenship played an even greater role in the now extensive litigation on the
applicability of the writ of habeas corpus to persons detained by the US military
outside the United States, particularly in Guantanamo Bay, Cuba. For instance, in
Al-Odah,71 the US Court of Appeals for the DC Circuit found that aliens detained
outside US sovereign territory had no constitutional rights, and that having no such
rights these could not be vindicated through habeas corpus as protected by the US
Constitution and the applicable statute.
In its ruling, the Court of Appeals relied on Eisentrager, a post-Second World
War case involving the detention of German nationals by US forces in a US
military prison in Germany.72 Indeed, Eisentrager proved to be absolutely central
for the Bush administration’s strategy in its ‘global war on terror’, and is deserving
of discussion at some length.
Writing for the Court in Eisentrager, Justice Jackson considered that
[m]odern American law has come a long way since the time when outbreak of war made
every enemy national an outlaw, subject to both public and private slaughter, cruelty, and
plunder. But even by the most magnanimous view, our law does not abolish inherent
distinctions recognized throughout the civilized world between citizens and aliens, nor
between aliens of friendly and of enemy allegiance, nor between resident enemy aliens
who have submitted themselves to our laws and nonresident enemy aliens who at all times
have remained with, and adhered to, enemy governments.
With the citizen we are now little concerned, except to set his case apart as untouched by
this decision and to take measure of the difference between his status and that of all
categories of aliens. Citizenship as a head of jurisdiction and a ground of protection was
old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor
diminished the importance of citizenship, nor have they sapped the vitality of a citizen's
claims upon his government for protection.73
Justice Jackson continued by saying that
[t]he alien, to whom the United States has been traditionally hospitable, has been accorded a
generous and ascending scale of rights as he increases his identity with our society. Mere
lawful presence in the country creates an implied assurance of safe conduct and gives him
68 69
Similarly, see Raustiala, above note 22, at 172–7. Verdugo-Urquidez, at 275–9.
70
Ibid., at 279 et seq.
71
Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), esp. at 1141.
72 73
Johnson v. Eisentrager, 339 U.S. 763 (1950). Ibid., at 768–9.
certain rights; they become more extensive and secure when he makes preliminary declara-
tion of intention to become a citizen, and they expand to those of full citizenship upon
naturalization. . . . [I]n extending constitutional protections beyond the citizenry, the Court
has been at pains to point out that it was the alien's presence within its territorial jurisdiction
that gave the Judiciary power to act.74
He further held that
[i]t is war that exposes the relative vulnerability of the alien's status. The security and
protection enjoyed while the nation of his allegiance remains in amity with the United States
are greatly impaired when his nation takes up arms against us. While his lot is far more
humane and endurable than the experience of our citizens in some enemy lands, it is still not
a happy one. But disabilities this country lays upon the alien who becomes also an enemy are
imposed temporarily as an incident of war, and not as an incident of alienage.75
Justice Jackson then turned to effectiveness, arguing that extending the writ of
habeas corpus to enemy aliens detained outside US sovereign territory would pose
severe practical difficulties and would seriously hamper the ability of the Executive
to wage war, especially in battlefield conditions.76 He further delved into the
impossibility of extending constitutional rights such as the freedom of speech,
trial by jury, or the right to bear arms in an extraterritorial context, especially during
a military occupation.77 The petition for habeas corpus was thus dismissed:
Justice Black, whom Justices Douglas and Burton joined, dissented. In his view,
not only is United States citizenship a ‘high privilege,’ it is a priceless treasure. For that
citizenship is enriched beyond price by our goal of equal justice under law—equal justice
not for citizens alone, but for all persons coming within the ambit of our power. This ideal
gave birth to the constitutional provision for an independent judiciary with authority to
check abuses of executive power and to issue writs of habeas corpus liberating persons
illegally imprisoned.78
He further argued that
[s]ince the Court expressly disavows conflict with the Quirin or Yamashita decisions, it must
be relying not on the status of these petitioners as alien enemy belligerents, but rather on the
fact that they were captured, tried, and imprisoned outside our territory. The Court cannot,
and, despite its rhetoric on the point, does not, deny that, if they were imprisoned in the
United States, our courts would clearly have jurisdiction to hear their habeas corpus
complaints. Does a prisoner's right to test legality of a sentence then depend on where the
Government chooses to imprison him? Certainly the Quirin and Yamashita opinions lend
no support to that conclusion, for, in upholding jurisdiction, they place no reliance whatever
on territorial location. The Court is fashioning wholly indefensible doctrine if it permits the
executive branch, by deciding where its prisoners will be tried and imprisoned, to deprive all
federal courts of their power to protect against a federal executive's illegal incarcerations.
If the opinion thus means, and it apparently does, that these petitioners are deprived of
the privilege of habeas corpus solely because they were convicted and imprisoned overseas,
the Court is adopting a broad and dangerous principle. The range of that principle is
74 75 76
Ibid., at 769–71. Ibid., at 771–2. Ibid., at 779.
77 78
Ibid., at 782–3. Ibid., at 791.
underlined by the argument of the Government brief that habeas corpus is not even
available for American citizens convicted and imprisoned in Germany by American military
tribunals. While the Court wisely disclaims any such necessary effect for its holding,
rejection of the Government's argument is certainly made difficult by the logic of today's
opinion. Conceivably, a majority may hereafter find citizenship a sufficient substitute for
territorial jurisdiction, and thus permit courts to protect Americans from illegal sentences.
But the Court's opinion inescapably denies courts power to afford the least bit of protection
for any alien who is subject to our occupation government abroad, even if he is neither
enemy nor belligerent, and even after peace is officially declared.79
Justice Black then attacked Justice Jackson’s effectiveness rationale:
It has always been recognized that actual warfare can be conducted successfully only if those
in command are left the most ample independence in the theater of operations. Our
Constitution is not so impractical or inflexible that it unduly restricts such necessary
independence. It would be fantastic to suggest that alien enemies could haul our military
leaders into judicial tribunals to account for their day to day activities on the battlefront.
Active fighting forces must be free to fight while hostilities are in progress. But that
undisputable axiom has no bearing on this case or the general problem from which it arises.
When a foreign enemy surrenders, the situation changes markedly. If our country decides
to occupy conquered territory either temporarily or permanently, it assumes the problem of
deciding how the subjugated people will be ruled, what laws will govern, who will
promulgate them, and what governmental agency of ours will see that they are properly
administered. This responsibility immediately raises questions concerning the extent to
which our domestic laws, constitutional and statutory, are transplanted abroad. Probably no
one would suggest, and certainly I would not, that this nation either must or should attempt
to apply every constitutional provision of the Bill of Rights in controlling temporarily
occupied countries. But that does not mean that the Constitution is wholly inapplicable
in foreign territories that we occupy and govern.80
He concluded with powerful rhetoric:
Perhaps, as some nations believe, there is merit in leaving the administration of criminal laws
to executive and military agencies completely free from judicial scrutiny. Our Constitution
has emphatically expressed a contrary policy.
As the Court points out, Paul was fortunate enough to be a Roman citizen when he was
made the victim of prejudicial charges; that privileged status afforded him an appeal to
Rome, with a right to meet his ‘accusers face to face.’ Acts 25:16. But other martyrized
disciples were not so fortunate. Our Constitution has led people everywhere to hope and
believe that, wherever our laws control, all people, whether our citizens or not, would have
an equal chance before the bar of criminal justice.
Conquest by the United States, unlike conquest by many other nations, does not mean
tyranny. For our people ‘choose to maintain their greatness by justice, rather than violence.’
Our constitutional principles are such that their mandate of equal justice under law should
be applied as well when we occupy lands across the sea as when our flag flew only over
thirteen colonies. Our nation proclaims a belief in the dignity of human beings as such, no
matter what their nationality or where they happen to live. Habeas corpus, as an instrument
to protect against illegal imprisonment, is written into the Constitution. Its use by courts
79 80
Ibid., at 795–6. Ibid., at 796–7.
cannot, in my judgment, be constitutionally abridged by Executive or by Congress. I would
hold that our courts can exercise it whenever any United States official illegally imprisons
any person in any land we govern. Courts should not for any reason abdicate this, the loftiest
power with which the Constitution has endowed them.81
The tension in Eisentrager between universality and the ‘dignity of human beings as
such’ on the one hand, and citizenship and effectiveness on the other, is palpable.
For the majority of the justices, citizenship and effectiveness carried the day. The
Court was understandably reluctant to accept that the Constitution protected
thousands upon thousands of aliens detained in the wake of the Second World
War, but its reluctance then is still felt today. The Supreme Court’s Eisentrager
holding was the principal basis for the view of the Bush administration lawyers
some fifty years later that non-US nationals detained in Guantanamo would not be
entitled to any constitutional protections.82 As a matter of policy, lack of judicial
supervision was precisely the reason why the administration chose to turn Guanta-
namo into a terrorist detention centre. As we have seen from Al-Odah, that strategy
was initially successful before lower US courts. Before the Supreme Court, how-
ever, the story turned out differently—but that journey was neither quick nor
inevitable.
B. The Guantanamo cases

The first Guantanamo habeas corpus case to be heard by the Supreme Court was
Rasul v. Bush,83 and it split the Court badly along ideological lines. In a 5 to 4
ruling, Justice Stevens delivered the opinion of the Court.
In its initial foray into addressing the Bush administration’s legal strategy in the
‘war on terror’, the Court exhibited quite a bit of caution. Justice Stevens ap-
proached the case solely on statutory grounds, without reaching the question
whether persons detained in Guantanamo had a constitutional right to habeas
corpus, or indeed any constitutional rights at all. He also did his best not to
overturn, but (rather unpersuasively) distinguish Eisentrager, by asserting that its
statutory predicate was overruled in another case.84 He thus ultimately held that
statutory habeas corpus attaches to all persons within the ‘territorial jurisdiction’ of
US courts; since Guantanamo was, pursuant to the treaty between the United
States and Cuba, under US ‘complete jurisdiction and control’, even if Cuba
retained sovereignty,85 habeas corpus was available to persons detained there.86
Regarding citizenship, Justice Stevens stated that
81
Ibid., at 797–8.
82
See above note 10. See also John C. Yoo, ‘Memorandum for William J. Haynes II, Re: Military
Interrogation of Alien Unlawful Combatants Held Outside the United States’, US Department of
Justice, Office of the Legal Counsel, 14 March 2003, available at <http://www.aclu.org/pdfs/safefree/
yoo_army_torture_memo.pdf>.
83
Rasul v. Bush, 542 U.S. 466 (2004).
84
Ibid., at 475–9.
85
See above, Chapter II, note 67 and accompanying text.
86
Rasul, at 480–4.
[c]onsidering that the [habeas] statute draws no distinction between Americans and aliens
held in federal custody, there is little reason to think that Congress intended the geographi-
cal coverage of the statute to vary depending on the detainee's citizenship. Aliens held at the
base, no less than American citizens, are entitled to invoke the federal courts’ authority
under } 2241 [the habeas statute].87
In his concurring opinion, Justice Kennedy disagreed with the Court that Eisen-
trager could be distinguished on statutory grounds, but thought that it could be
distinguished on the facts, namely because ‘[f]rom a practical perspective, the
indefinite lease of Guantanamo Bay has produced a place that belongs to the
United States, extending the “implied protection” of the United States to it’,
Cuba’s formal sovereignty notwithstanding.88
In his dissent, Justice Scalia rather thoroughly debunked the Court’s distinguish-
ing of Eisentrager.89 As for the relevance of citizenship, he considered that
[n]either party to the present case challenges the atextual extension of the habeas statute to
United States citizens held beyond the territorial jurisdictions of the United States courts;
but the possibility of one atextual exception thought to be required by the Constitution is no
justification for abandoning the clear application of the text to a situation in which it raises
no constitutional doubt.90
In other words, in Justice Scalia’s view, discrimination between citizens and non-
citizens should be read into the habeas statute, so it could indeed apply extraterri-
torially to the former.91 Justice Scalia then turned to an effectiveness argument:
The consequence of this holding, as applied to aliens outside the country, is breathtaking. It
permits an alien captured in a foreign theater of active combat to bring a } 2241 petition
against the Secretary of Defense. Over the course of the last century, the United States has
held millions of alien prisoners abroad. . . . A great many of these prisoners would no doubt
have complained about the circumstances of their capture and the terms of their confine-
ment. The military is currently detaining over 600 prisoners at Guantanamo Bay alone; each
detainee undoubtedly has complaints—real or contrived—about those terms and circum-
stances. The Court's unheralded expansion of federal-court jurisdiction is not even miti-
gated by a comforting assurance that the legion of ensuing claims will be easily resolved on
the merits. . . . From this point forward, federal courts will entertain petitions from these
prisoners, and others like them around the world, challenging actions and events far away,
and forcing the courts to oversee one aspect of the Executive's conduct of a foreign war.92
Finally, Justice Scalia disputed the Court’s discussion of the unique status of
Guantanamo:
The Court does not explain how ‘complete jurisdiction and control’ without sovereignty
causes an enclave to be part of the United States for purposes of its domestic laws. Since
‘jurisdiction and control’ obtained through a lease is no different in effect from ‘jurisdiction
and control’ acquired by lawful force of arms, parts of Afghanistan and Iraq should logically
be regarded as subject to our domestic laws. Indeed, if ‘jurisdiction and control’ rather than
87 88 89 90
Ibid., at 481. Ibid., at 487. Ibid., at 489–98. Ibid., at 497.
91 92
See also Ibid., at 501–2. Ibid., at 498–9 (internal citations omitted).
sovereignty were the test, so should the Landsberg Prison in Germany, where the United
States held the Eisentrager detainees.93
On this point, Justice Scalia has it exactly right. There is indeed no reason of
principle why jurisdiction and control over a territory obtained through a treaty
should be treated differently from jurisdiction and control obtained through the use
of force, lawful and even unlawful, as Loizidou attests. But then again, lack of
sovereignty or title over territory is also not a principled reason for denying any
extraterritorial protection of individual rights. Justice Scalia never explains why
sovereignty alone should matter. Moreover, if considerations of effectiveness should
preclude aliens from invoking habeas corpus, why do they not equally affect citizens
as well?
On the same day as Rasul, the Court decided Hamdi v. Rumsfeld,94 holding that
a US citizen detained in the United States as an enemy combatant had a constitu-
tional right for the legality of his detention to be reviewed by an independent court.
Though no single opinion commanded the majority of the Court, eight of the nine
justices thought that US citizens detained in the United States were entitled to
constitutional due process, and it was indeed Justice Scalia who was most fiercely
opposed to the Executive’s asserted broad power of detention.
Congress acted swiftly to overrule Rasul by passing the Detainee Treatment Act
2005 (DTA) which stripped US courts of jurisdiction to entertain petitions by non-
US nationals detained abroad. In Hamdan v. Rumsfeld, the Court’s next encounter
with Guantanamo, the Court held that the jurisdiction-stripping provisions of
the DTA did not apply retrospectively to petitions that were pending at the time
the DTA was passed, and that all detainees in US custody were entitled to the
minimum fair trial protections of Common Article 3 of the 1949 Geneva Con-
ventions.95 In response to Hamdan, Congress passed the Military Commissions Act
2006 (MCA) which quite explicitly stripped US courts of jurisdiction even with
respect to pending petitions.
The stage was thus set for the Boumediene case,96 where the Court considered
whether aliens detained in Guantanamo had a constitutional, as opposed to statutory,
right to habeas corpus, and answered that question in the affirmative in yet another
5 to 4 decision. After reviewing earlier case law, Justice Kennedy, writing for the
Court, could not accept the government’s argument that ‘at least as applied to
noncitizens, the Constitution necessarily stops where de jure sovereignty ends’.97 In
his view, it is ‘practical considerations’ above all else that govern the extraterritorial
93
Ibid., at 501.
94
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
95
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
96
Boumediene v. Bush, 128 S. Ct. 2229 (2008). For general comments on the decision, see, e.g.,
G. Neuman, ‘The Extraterritorial Constitution after Boumediene v. Bush’, (2009) 82 S. Cal. L. Rev.
259; D. Jenkins, ‘Habeas Corpus and Extraterritorial Jurisdiction after Boumediene: Towards a
Doctrine of “Effective Control” in the United States’, (2009) 9 HRLR 306; R. Chesney, ‘Case
Note: Boumediene v. Bush’, (2008) 102 AJIL 848.
97
Boumediene, at 2253.
application of the Constitution,98 and these same practical considerations were also
the primary basis for the Eisentrager precedent, which he unsurprisingly, but not
altogether candidly, chose to distinguish rather than overrule.99 Though, as I have
explained above, practical considerations were absolutely crucial in Eisentrager,
Justice Jackson also clearly based his ruling on sovereignty and citizenship. However,
according to Justice Kennedy,
Even if we assume the Eisentrager Court considered the United States' lack of formal legal
sovereignty over Landsberg Prison as the decisive factor in that case, its holding is not
inconsistent with a functional approach to questions of extraterritoriality. The formal legal
status of a given territory affects, at least to some extent, the political branches' control over
that territory. De jure sovereignty is a factor that bears upon which constitutional guarantees
apply there.100
He was of the opinion that earlier case law supported ‘the idea that questions of
extraterritoriality turn on objective factors and practical concerns, not formal-
ism.’101 He thus concluded that
. . . at least three factors are relevant in determining the reach of the Suspension Clause: (1)
the citizenship and status of the detainee and the adequacy of the process through which that
status determination was made; (2) the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inherent in resolving the prisoner's
entitlement to the writ.102
Applying this functional framework, Justice Kennedy considered that: (1) though
they were not citizens, it was in doubt whether the detainees were enemy aliens, and
the process created by the Executive to establish their status fell well short of
mechanisms that would obviate the need for habeas corpus review; (2) in ‘every
practical sense Guantanamo is not abroad; it is within the constant jurisdiction
of the United States’, and is thus distinguishable from the military prison in Eisentrager
that was under the joint jurisdiction of the four Allied Powers that were occupying
Germany (this of course left open the question whether habeas corpus would be
available to detainees in other US facilities, such as Bagram); and (3) there were no
practical obstacles in conducting habeas review.103 Justice Kennedy also dismissed the
lack of a precedent exactly on point in support of his ruling:
It is true that before today the Court has never held that noncitizens detained by our
Government in territory over which another country maintains de jure sovereignty have any
rights under our Constitution. But the cases before us lack any precise historical parallel.
They involve individuals detained by executive order for the duration of a conflict that, if
measured from September 11, 2001, to the present, is already among the longest wars in
American history. . . . The detainees, moreover, are held in a territory that, while technically
not part of the United States, is under the complete and total control of our Government.
Under these circumstances the lack of a precedent on point is no barrier to our holding.104
98 99 100
Ibid., at 2257. Ibid., at 2257 et seq. Ibid., at 2258.
101 102 103
Ibid., at 2258. Ibid., at 2259. Ibid., at 2259–62.
104
Ibid., at 2262.
The dissenting opinions of both Chief Justice Roberts and Justice Scalia put a heavy
emphasis on effectiveness arguments, particularly on the deference that the political
branches of government were due from the courts in matters of war and foreign
policy. Justice Scalia rehearsed his arguments from Rasul:
The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the
Suspension Clause thus has no application, and the Court's intervention in this military
matter is entirely ultra vires. . . . The game of bait-and-switch that today's opinion plays
upon the Nation's Commander in Chief will make the war harder on us. It will almost
certainly cause more Americans to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital to our constitutional Republic.
But it is this Court's blatant abandonment of such a principle that produces the decision
today.105
Dismissing the majority’s distinguishing of Eisentrager as unpersuasive (which it
was), Justice Scalia summed up his stance on the relevance of citizenship to the
extraterritorial application of the Constitution: ‘merely because citizenship is not a
sufficient factor to extend constitutional rights abroad does not mean that it is not a
necessary one’.106
C. Evaluating citizenship as a ground for extraterritoriality

of individual rights
Though questions of effectiveness are ubiquitous in all cases on the extraterritoriali-
ty of individual rights, be they domestic or international, it is the reliance on
citizenship in US case law that is particularly striking. Taken as a value in and of
itself, citizenship stands in manifest opposition to the principle of universality.107
When it comes to protecting an individual from the arbitrary exercise of state
power, why should a formal tie between the individual and the state make him
worthy of protection, and not his inherent human dignity? If, moreover, citizenship
is not the determining consideration for the protection of individual rights when a
state acts within its borders, why should it matter when a state acts outside its
borders?108
In the United States at least, citizenship matters because of the prevalence of
social contract conceptions of the US Constitution, including its guarantees of
individual rights, as opposed to more universalist viewpoints. As explained by
Neuman,
Social contract rhetoric has played a significant role in American constitutionalism. Social
contract theory seeks to legitimate government through the idea of an actual or hypothetical
agreement embodying the consent of the governed who have established the state and
empowered it to govern. Some accounts of social contract theory identify a limited class of
105 106
Ibid., at 2294. Ibid., at 2301.
107
See Ben-Naftali and Shany, above note 3, at 61–3.
108
See also Raustiala, above note 22, at 170–2.
‘members’ as the proper beneficiaries of the contract. The beneficiaries have rights based in
the contract; nonbeneficiaries are relegated to whatever rights they may have independent of
the contract. A skeptic who did not ascribe normative force to social contract arguments still
could invoke the idea of a social contract as a historically-grounded tool for interpreting
American constitutionalism. This sort of reasoning is evident in Chief Justice Rehnquist's
opinion in Verdugo-Urquidez.109
The question is thus whether the purpose of habeas corpus specifically or the
Constitution in general is to protect American rights and citizens’ rights, or con-
versely, whether they are meant to protect human rights against an irresponsible
government.110 We have already seen this tension in Eisentrager, with Justice
Jackson focusing on the importance of citizenship, and Justice Black arguing that
it is the nation’s ‘belief in the dignity of human beings as such, no matter what their
nationality or where they happen to live’111 that should determine the scope of the
Constitution’s guarantees of individual rights. Ultimately, the only real answer that
can be given to this question is ideological.112 It is certainly possible, as Neuman
noted in the quotation above, to attempt an historical inquiry into how that
question was answered in the past. This was done, as we have seen, by both the
majority and the minority in Rasul and Boumediene. An intellectually honest
approach to this historical inquiry would reach the unsurprising conclusion that
the same debates we wage today were waged before, and that sometimes universal-
ity (or, at least, non-discrimination between citizens and aliens) and sometimes a
social contract approach had the upper hand.113 We should also not forget that it
was America’s founders who declared: ‘[w]e hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit of Happi-
ness.’ Citizenship hardly fits well with this universalist sentiment.114 Be that as it
may, it is in any case for American lawyers and the American polity to determine
what conception of individual rights their Constitution enshrines in the twenty-
first century.115 If they do wish to continue assigning such crucial importance to
citizenship—as is evident not just from the dissents in the Guantanamo cases, but
109
G. Neuman, ‘Whose Constitution?’, (1991) 100 Yale L.J. 909, 917.
110
See, in that vein, T. Endicott, ‘Habeas Corpus and Guantánamo Bay: A View from Abroad’,
American Journal of Jurisprudence (forthcoming), draft available on SSRN at <http://ssrn.com/
abstract=982412>.
111
Eisentrager, at 797–8.
112
See also Raustiala, above note 22, at 246–7.
113
See generally Neuman, above note 109. See also Raustiala, above note 22, at 54–7.
114
See, e.g., L. Henkin, ‘The Constitution as Compact and as Conscience: Individual Rights
abroad and at Our Gates’, (1985–86) 27 Wm. & Mary L. Rev. 11, esp. at 32: ‘Our federal government
must not invade the individual rights of any human being. The choice in the Bill of Rights of the word
“person” rather than “citizen” was not fortuitous; nor was the absence of a geographical limitation.
Both reflect a commitment to respect the individual rights of all human beings.’
115
For a general account of the evolution of the importance of citizenship in US law, see P. Spiro,
Beyond Citizenship: American Identity After Globalization (Oxford University Press, 2008).
also from the discussions of the majority of the Court as well as from other
cases116—they are free to do so.117
What is undeniably true, however, is that some legal systems have already
decided that citizenship should not be the basis for the protection of individual
rights, whether extraterritorially or not. It is above all international law that has
unambiguously adopted the principle of universality of human rights.118 In that
international law is by no means alone. Compare for a moment the Canadian with
the US case law, with best comparison points being Hape and Verdugo-Urquidez,
since they both concerned extraterritorial searches.
In Verdugo-Urquidez, the petitioner lost because he was not a US citizen, and
because the Court could not see how the Fourth Amendment could effectively
apply to an extraterritorial search. In Hape, on the other hand, the petitioner
actually was a Canadian citizen, but he still lost on grounds of effectiveness.
What is so striking is precisely that the Canadian Supreme Court, unlike its US
counterpart, gave no significance to citizenship.119 Indeed, at least one reason that
it did not do so is that a citizenship-based argument in favour of the extraterritorial
application of the Canadian Charter would have undermined the effectiveness
argument against extraterritorial application. In other words, if the provisions of
the Charter on unreasonable searches could effectively apply to the premises of a
Canadian citizen outside Canada on the basis of citizenship alone, then one could
not honestly say that these same provisions could not be applied effectively vis-à-vis
non-citizens. This in fact also undermines the dissenting justices’ effectiveness-
based arguments in the Guantanamo cases that granting non-citizens habeas corpus
review would undermine the ability of the Executive to successfully prosecute a
116
Thus, for example, on the same day that it decided Boumediene, the US Supreme Court also
delivered its opinion in Munaf v. Geren, 128 S.Ct. 2207 (2008), where it unanimously held that US
citizens detained abroad by US forces acting as a part of a military coalition would have a statutory right
to habeas corpus, though their petition failed on the merits of the case. See also Hamdi v. Rumsfeld, 542
U.S. 507 (2004). The idea that citizens are somehow by definition entitled to more rights than aliens,
including in matters such as executive detention, is prevalent even in the literature which broadly
endorses the US Supreme Court’s judgments on Guantanamo. See, e.g., R. Fallon and D. Meltzer,
‘Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror’, (2007) 120 Harv. L. Rev.
2029, 2083 (stating that such a conclusion is based on the ‘assumption that the Constitution is a
continuing compact among the American people, established and accepted principally for the benefit
of Americans. A constitution under which the government owes special obligations to its citizens can of
course grant rights to noncitizens, as ours does and should. But the moral foundations for the rights of
aliens are different in kind from the moral foundations of citizens’ rights, because aliens are by
definition outsiders to the fair scheme of social cooperation and mutual advantage that the Constitu-
tion aims to establish among the American people. The rights of aliens, resting as they do on a different
basis, can accordingly be narrower in scope.’)
117
See further in that regard the discussions in Neuman, above note 109; S. Cleveland, ‘Embedded
International Law and the Constitution Abroad’, (2010) 110 Colum. L. Rev. 225; J.A. Kent, ‘A Textual
and Historical Case Against a Global Constitution’, (2007) 95 Geo. L. J. 463; Fallon and Meltzer,
above note 116; Raustiala, above note 22.
118
Thus, for example, the ADHR emphatically declares that ‘the essential rights of man are not
derived from the fact that he is a national of a certain state, but are based upon attributes of his human
personality’.
119
See Verdier, above note 38, at 148. Citizenship was only mentioned by Binnie J. in Hape, para.
187, as he admonished the majority of the Court not to be too rigid in its approach, as it might have
serious repercussions for future cases.
war—when that exact same rationale applies equally to citizens detained by the
military, in respect of whom it was undisputed that they have a right to habeas
corpus.120
I am not saying that citizenship plays no role whatsoever in the legal discourse on
the extraterritoriality of individual rights protection outside the United States. Take
Canada again as an example, this time the Khadr case121 before the Canadian
Supreme Court. Omar Ahmed Khadr is a Canadian national, since 2002 detained
by US forces in Guantanamo as an enemy combatant. He was originally detained in
Afghanistan for taking part in hostilities against US forces there, but has since been
charged with murder and other crimes before a military commission. At the time of
his capture he was only fifteen years of age, which made him the youngest prisoner
in Guantanamo. In 2003, he was questioned in Guantanamo by Canadian intelli-
gence agents, who shared the product of this interview with US authorities. Before
Canadian courts, he sought an order that would require Canadian authorities to
disclose all documents relevant to the charges against him, including the records of
the interview.
The Court held that Khadr was indeed entitled to such disclosure under the
Charter of Rights and Freedoms. To do that, however, it had to distinguish its
ruling in Hape that the Charter cannot apply on foreign soil due to comity and
respect for the sovereignty of the territorial state. It did so by relying on Justice
LeBel’s dictum in Hape that comity would end if Canada’s agents were involved in
violations of Canada’s international human rights obligations.122 Because the US
Supreme Court itself held in Hamdan that the United States government had
breached its obligations toward the detainees under Common Article 3 of the
Geneva Conventions, the United States was owed no deference by Canada and the
Charter applied to Canadian agents in Guantanamo.123
Though the Court in Khadr quite neatly managed to avoid assessing on its own
whether the United States had violated Khadr’s human rights by referring to a
decision of the US Supreme Court,124 its analysis of Canada’s complicity in that
human rights violation—in fact not a human rights violation proper, but a viola-
tion of international humanitarian law—leaves something to be desired. I have
already explained above why I believe that the whole comity rationale for denying
extraterritorial application of human rights guarantees does not withstand scrutiny.
In any event, it is hard to read Khadr without having the impression that the fact
that Khadr was a Canadian national had an impact on the Court, even though the
Court does not actually base its holding on Khadr’s citizenship. I cannot help but
wonder what the Court’s holding would have been if Khadr had had Afghan
120
Cf. A and Others v. Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC
68 (the Belmarsh case), where the House of Lords held that a derogation under Art. 15 ECHR to allow
for preventive detention under Art. 5 ECHR is impermissible if it is limited only to non-citizens.
121
Canada (Justice) v. Khadr, 2008 SCC 28. See also its companion case Canada (Prime Minister) v.
Khadr, 2010 SCC 3, in which the Court dealt with the remedy for the violation of Khadr’s rights.
122
Hape, para. 101 (per LeBel J).
123
Khadr, paras 2–3, 21, 25–6.
124
See also Keitner, above note 4, at 34–5.
nationality, and had been interrogated by Canadian agents because he was a subject
of interest.125
Though citizenship as a policy consideration is thus not completely irrelevant in
jurisdictions other than the United States, its relevance nonetheless seems rather
marginal when compared to considerations of effectiveness. Indeed, invocations of
citizenship are often treated as pernicious.126
Whatever the relevance of citizenship in respect of the extraterritorial application
of domestic human rights guarantees, it is clear that it should have no relevance to
the extraterritorial application of international human rights treaties, which are not
social compacts, but compacts between nations. Again, this is not to say that, as a
matter of fact, considerations of citizenship do not influence judges when they
interpret the relevant treaties. What I am saying is that normatively citizenship is not
a legitimate consideration on which the application of a human rights treaty is to be
based, as it directly contradicts the principle of universality.127 While some national
legal systems have as yet not decided whether their constitutional instruments have
their basis in a social compact or in a universality theory, that value or ideological
choice has already been made in the international system. In the aftermath of the
Second World War, states have jointly decided—in word, if not in deed—that the
moral foundation of individual rights cannot be citizenship or membership in a
polity, but can only be found in the dignity inherent in every human being. From
the standpoint of the international legal system, universality is no longer just one of
many competing ideological viewpoints—universality is the law. This decision is of
course no accident, but is born of bitter experience. We need little reminding how
the Nazi persecution of German Jews escalated by the stripping of their German
citizenship and the enactment of the Nuremberg Laws,128 or how apartheid South
Africa transferred the citizenship of a large part of its black population to suppo-
sedly independent Bantustans, so that it could continue discriminating against
them, but now on the superficially more palatable basis of citizenship rather than
race.129
125
Indeed, a case practically identical to Khadr arose in the lower Canadian courts, with one
important difference—that the applicants were not Canadian citizens. For that reason, the Federal
Court found that they were not entitled under the Charter to the disclosure of information gathered by
Canadian agents who interrogated them in Guantanamo. See Slahi v. Canada, 2009 FC 160, esp. paras
39–48. The judgment was rather tersely affirmed by the Federal Court of Appeal—see Slahi v. Canada,
2009 FCA 259. For its part, the Supreme Court chose to remain silent on the issue, and refused to
grant leave to appeal—see Slahi v. Canada, 2010 CarswellNat 297.
126
Of interest in that regard is ongoing debate in the UK government proposals to enact a British
Bill of Rights, which would supplement or supplant the Human Rights Act and the ECHR—see, e.g.,
Joint Committee on Human Rights, ‘Twenty-Ninth Report,’ 21 July 2008, available at <http://www.
publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/16506.htm>, esp. para. 84: ‘We call on
the Government to decouple the debate about a Bill of Rights from the debate about citizenship and
the rights and duties of the citizen, and to ensure that in future the universality of fundamental human
rights is explicitly recognised in documents and speeches relating to a Bill of Rights.’
127
See also J.M. Piret, ‘Boumediene v. Bush and the Extraterritorial Reach of the US Constitution:
A Step Towards Judicial Cosmopolitanism?’, (2008) 4 Utrecht Law Review 81.
128
See, e.g., I. Kershaw, Hitler 1889–1936: Hubris (Norton, 1999), at 560–70.
129
See, e.g., J. Crawford, The Creation of States in International Law (Oxford University Press, 2nd
edn, 2006), at 338–48.
Citizenship has retained only relatively minor importance in human rights law.
It is solely political rights—the rights to vote in democratic elections and to stand
for office—that have remained tied to citizenship, because these rights are ulti-
mately tied to membership in the polity. Immigration is of course another field
where citizenship has remained broadly relevant. But generally speaking, when
citizenship has been used to create privileges or deny rights, it has been treated as a
ground of discrimination that is prohibited unless reasonably and objectively
justified.130 The European Court even considers it a particularly suspect classifica-
tion, saying that ‘very weighty reasons would have to be put forward before the
Court could regard a difference of treatment based exclusively on the ground of
nationality as compatible with the Convention’.131 It certainly may not be used as
the sole basis for the extraterritorial application of a human rights treaty. For
example, it would be normatively unacceptable to argue that a British national in
the custody of British troops in Iraq would be within the jurisdiction of the United
Kingdom and that the ECHR would thus apply, while an Iraqi national in the same
situation would not be within the United Kingdom’s jurisdiction. That interna-
tional law recognizes nationality as a basis for prescriptive jurisdiction, i.e. as a basis
for the extension of domestic law to a person, is irrelevant, since, as explained
above, the concept of state jurisdiction in human rights treaties is grounded in
factual power, not in the extension of domestic law.132
To put this another way, as I am writing this in Cambridge, I am within the
prescriptive jurisdiction of two states: the United Kingdom, in whose territory I am
residing, and Serbia, my state of nationality. If I were, say, to commit murder,
I could be punished under both UK law, on the basis of the territoriality principle,
and under Serbian law, pursuant to the active personality principle. But even
though both states have extended their prescriptive or legislative jurisdiction to
me, i.e. both of them have laws commanding me not to kill other people on pain of
criminal punishment, I am still ‘within the jurisdiction’ in the sense of Article 1
ECHR or the relevant jurisdiction clauses of other human rights treaties of only one
state—the United Kingdom. Thus, if I was the victim of murder by an unknown
assailant, it would be the United Kingdom, not Serbia, who would have the
obligation to conduct an effective investigation into my murder pursuant to Article
2 ECHR. This would be the case irrespective of whether the murderer himself was
also a Serbian national.133 What counts is that I am located in a territory which is
under the United Kingdom’s jurisdiction, i.e. under its effective overall control.
Case law on the extraterritoriality of human rights treaties has thankfully been
free, as a general matter, of the notion that extraterritoriality might depend on
the nationality of either the victim or the perpetrator of a human rights violation.
There are some older cases, however, where this fallacy is either present or is hinted
130
See, e.g., CERD General Recommendation No. 30 UN Doc. HRI/GEN/1/Rev.7/Add.1
(2004); M. Nowak, CCPR Commentary (Engel, 2nd revised edn, 2005), at 54–5, 618–23.
131
Gaygusuz v. Austria, App. No. 17371/90, Judgment, 16 September 1996, para. 42.
132
See above, Chapter II. See also below, Chapter IV, Section 3.C.3.
133
The situation might be different if I was killed by a Serbian agent, i.e. a person whose acts are
attributable to Serbia, whether of Serbian nationality or not. See Chapter IV, Section 4.C. below.
at—most notably cases of the now defunct European Commission on Human
Rights. Thus, for example, in X v. Federal Republic of Germany,134 a case with a
rather colourful set of facts where the applicant alleged that his ECHR rights were
violated by German consular officials inter alia because they denied that he was of
noble birth, the Commission remarked that
. . . in certain respects, the nationals of a Contracting State are within its ‘jurisdiction’ even
when domiciled or resident abroad; [ . . . ] in particular, the diplomatic and consular repre-
sentatives of their country of origin perform certain duties with regard to them which may, in
certain circumstances, make that country liable in respect of the Convention.135
However, this was not one such case, and the application was inadmissible. In its
first decision on northern Cyprus,136 the Commission likewise remarked that
[i]n Art. 1 of the Convention, the High Contracting Parties undertake to secure the
rights and freedoms defined in Section 1 to everyone ‘within their jurisdiction’ (in the
French text: ‘relevant de leur juridiction’). The Commission finds that this term is not, as
submitted by the respondent Government, equivalent to or limited to the national territory
of the High Contracting Party concerned. It is clear from the language, in particular of the
French text, and the object of this Article, and from the purpose of the Convention as a
whole, that the High Contracting Parties are bound to secure the said rights and freedoms to
all persons under their actual authority and responsibility, whether that authority is
exercised within their own territory or abroad. The Commission refers in this respect to
its decision on the admissibility of Application No. 1611/62—X. v/Federal Republic of
Germany—Yearbook of the European Convention on Human Rights, Vol. 8, pp. 158–169
(at pp. 168–169).
The Commission further observes that nationals of a State, including registered ships and
aircrafts, are partly within its jurisdiction wherever they may be, and that authorised agents
of a State, including diplomatic and consular agents and armed forces, not only remain
under its jurisdiction when abroad but bring any other persons or property ‘within the
jurisdiction’ of that State, to the extent that they exercise authority over such persons or
property. Insofar as, by their acts or omissions, they affect such persons or property, the
responsibility of the State is engaged.137
To the extent that the Commission says or wants to say that nationals of a state can
be within its jurisdiction wherever they may be it is guilty of a category error, as
I have explained above. That a state may legislate for its nationals does not mean
that it ipso facto has jurisdiction over them in the purely factual Article 1 sense. The
extraterritorial application of the ECHR simply cannot depend on the nationality
of the alleged victim of a human rights violation. But as we can see from the
Commission’s reasoning quoted above, this was a fairly marginal point, nothing
more than an obiter dictum. The Commission’s actual holding is that state organs or
agents through their own actions bring persons under their authority and control,
134
X v. Federal Republic of Germany, App. No. 1611/62, 25 September 1965, 8 Yearbook of
the European Convention on Human Rights 158.
135
Ibid., at 168.
136
Cyprus v. Turkey (dec.), App. Nos 6780/74 and 6950/75, 26 May 1975.
137
Ibid., at 136, para. 8.
and that this equals jurisdiction in the sense of Article 1.138 I will turn to this
question in the next chapter of this study.139 For now, however, assuming that the
Commission’s views are correct, it will suffice to observe that it is not the nationali-
ty of the perpetrators of the violation that matters, but their status as organs or
agents of a state.
In conclusion, citizenship or nationality alone is not a legitimate basis for the
extraterritorial applicability of a human rights treaty. While it is possible for a right
to be directly tied to nationality—for example, Article 12(4) ICCPR provides that
‘[n]o one shall be arbitrarily deprived of the right to enter his own country’—
linking the application of a human rights treaty as such to nationality would not
only have no textual basis, but would also be contrary to the treaty’s object and
purpose. It is in particular when universality, rather than social contract, is seen as
the underpinning of individual rights, that it is not form, but the substance of state
power and control over individuals that matter. ‘The domain of human rights has
no place for passports.’140
6. Relativism and Regionalism
A. Relativism and regionalism before the European Court

That universality is entrenched in international law does not mean that it has
remained unchallenged. Culturally relativist responses to universality are as old as
universality itself. For all the lofty affirmations of the universality of human rights at
UN conferences, vast differences between, say, Europe and Iraq undeniably remain
as a matter of fact. It is likewise undeniable that the strength of the European
human rights regime has historically been contingent on a large number of shared
values and morals. For the relativist, saying that European human rights should
apply in Iraq in just the same way as they apply in Europe is as hopelessly utopian as
universality itself.
The universalist–relativist debate is again essentially ideological, and it will not
be rehearsed here.141 What interests me here is how relativist considerations
influence cases on the extraterritorial application of human rights guarantees. The
short answer is that relativist considerations do matter, explicitly or (more often)
implicitly. As we will see, a relativist argument can be made in two basic ways. The
first is that some societies are simply not developed enough, economically or
politically, to allow for the application of human rights standards that have evolved
in more advanced countries. Because it positively reeks of the old imperialist
distinction between civilized and uncivilized nations and directly contradicts the
138
The Commission’s reasoning (like that of the Court) also exhibits a degree of confusion
between state jurisdiction and state responsibility, on which see Chapter II, Section 3 above.
139
See below, Chapter IV, Sections 3 and 4.
140
R. Dworkin, Is Democracy Possible Here? (Princeton University Press, 2006), at 48.
141
See generally J. Donnelly, Universal Human Rights in Theory and Practice (Cornell University
Press, 2nd edn, 2003), at 89 et seq, and the authorities cited therein.
principle of universality, such unabashed relativism is a bit too hard to swallow for
modern sensibilities. It is thus often disguised in more palatable form. For instance,
it can be argued that it is not the difference in the level of development that should
militate against the universal application of the same standards, but difference pure
and simple in a multicultural world. Far from assuming an imperial civilizing
mission for human rights, or indeed Kipling’s ‘white man’s burden’,142 it is
(supposedly) the respect for the different cultures of other societies that requires
that foreign standards not be imposed upon them.
Relativist considerations are especially pronounced in the European context.143
Not only does relativism have quite a pedigree in Europe and its now largely
defunct imperialist projects, but emphasizing the regional nature of the European
human rights regime can be yet one more way of disguising relativist considerations
that would otherwise not be welcome in today’s polite society. That these con-
siderations are at play is however evident even from the very text of the ECHR. In
its preamble, for example, the states parties considering the adoption of the UDHR
state that ‘this Declaration aims at securing the universal and effective recognition
and observance of the Rights therein declared’ (emphasis added), and reaffirm ‘their
profound belief in those fundamental freedoms which are the foundation of justice
and peace in the world and are best maintained on the one hand by an effective
political democracy and on the other by a common understanding and observance
of the human rights upon which they depend’. But they also emphasize that they
are ‘the governments of European countries which are like-minded and have a
common heritage of political traditions, ideals, freedom and the rule of law’ (empha-
sis added). And then there is the colonial clause in Article 56 of the treaty, which
allows for its extension to territories for whose international relations a state party is
responsible, but provides in its paragraph 3 that ‘[t]he provisions of this Conven-
tion shall be applied in such territories with due regard, however, to local require-
ments’.144
The European Court case that most stressed the regional nature of the ECHR
was of course Bankovic. There the Court was faced with the applicants’ argument
that ‘any failure to accept that they fell within the jurisdiction of the respondent
States would defeat the ordre public mission of the Convention and leave a
regrettable vacuum in the Convention system of human rights’ protection’.145
The Court’s response was intriguing, and it bears quoting in full:
The Court’s obligation, in this respect, is to have regard to the special character of the
Convention as a constitutional instrument of European public order for the protection of
individual human beings and its role, as set out in Article 19 of the Convention, is to ensure
142
See Raustiala, above note 22, at 3 et seq.
143
They are also particularly prominent in American case law dealing with the United States’
colonial domains in the late nineteenth and early twentieth century—see generally Raustiala, above
note 22, at 59 et seq.
144
For an erudite, entertaining, and far more insightful account of the interplay between the end of
colonialism and the drafting of the ECHR than any I could ever give, see B. Simpson, Human Rights
and the End of Empire (Oxford University Press, 2004).
145
Bankovic, para. 79.
the observance of the engagements undertaken by the Contracting Parties (the above-cited
Loizidou judgment (preliminary objections), at } 93). It is therefore difficult to contend that a
failure to accept the extra-territorial jurisdiction of the respondent States would fall foul of
the Convention’s ordre public objective, which itself underlines the essentially regional
vocation of the Convention system, or of Article 19 of the Convention which does not
shed any particular light on the territorial ambit of that system.
It is true that, in its above-cited Cyprus v. Turkey judgment (at } 78), the Court was
conscious of the need to avoid ‘a regrettable vacuum in the system of human-rights
protection’ in northern Cyprus. However, and as noted by the Governments, that comment
related to an entirely different situation to the present: the inhabitants of northern Cyprus
would have found themselves excluded from the benefits of the Convention safeguards and
system which they had previously enjoyed, by Turkey’s ‘effective control’ of the territory
and by the accompanying inability of the Cypriot Government, as a Contracting State, to
fulfil the obligations it had undertaken under the Convention.
In short, the Convention is a multi-lateral treaty operating, subject to Article 56 of the
Convention, in an essentially regional context and notably in the legal space (espace
juridique) of the Contracting States. The FRY clearly does not fall within this legal space.
The Convention was not designed to be applied throughout the world, even in respect of the
conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in
human rights’ protection has so far been relied on by the Court in favour of establishing
jurisdiction only when the territory in question was one that, but for the specific circum-
stances, would normally be covered by the Convention.146
These dicta from Bankovic have provoked much debate and argument in recent
years. Their significance depends on how broadly one reads them. At their nar-
rowest, the Court here does nothing more than reject the applicants’ argument that
there would exist a vacuum in the ECHR system of protection, on the grounds that
the applicants were never protected by the ECHR in the first place. This narrowest
reading is in my view correct, as was the Court’s rejection of the applicants’ vacuous
vacuum argument, at least in those terms.147
A more expansive reading would be an a contrario one—what if, say, the
bombing of Belgrade had happened not in 1999, but in 2009, when Serbia was a
party to the ECHR? Would the Court’s entire analysis in Bankovic collapse at that
point, and would the applicants then actually be ‘within the jurisdiction’ of the
respondent states? Such an interpretation is not only possible, but is also inspired,
one might say, by a whiff of hypocrisy and double standards about the Court’s
decision.148 It is hard to escape the impression that the outcome of Bankovic would
not have been the same had it been Berlin or Brussels that were bombed, rather
than Belgrade.149
146
Ibid., para. 80 (explanatory footnote omitted, emphasis in original).
147
See, e.g., R. Wilde, ‘The “Legal Space” or “Espace Juridique” of the European Convention
on Human Rights: Is It Relevant to Extraterritorial State Action’, (2005) 2 EHRLR 115; Gondek, at
174 et seq.
148
See, in that regard, E. Roxstrom, M. Gibney, and T. Einarsen, ‘The NATO Bombing Case
(Bankovic et al. v. Belgium et al.) and the Limits of Western Human Rights Protection’, (2005) 23 B.U.
Int'l L.J. 55.
149
See also Lawson, above note 3, at 114–15.
This reading of course just begs the question whether the vacuum or gap
argument was actually all that important in Bankovic and in Cyprus v. Turkey. To
my mind at least, the argument was both marginal and unpersuasive. Yes, it would
indeed have been regrettable for Cypriots who possessed rights under the ECHR to
lose them because their country was invaded by another sovereign. But they
undoubtedly would have lost them vis-à-vis the invader had the invader been a
state that was not a party to the ECHR. The vacuum was avoided solely because
Turkey was a party to the ECHR, and because it exercised jurisdiction, i.e. effective
overall control, over an area that it invaded. In short, the desirability vel non of a
vacuum in protection does not and cannot affect the operation of Article 1 ECHR,
since a state party either has jurisdiction over a territory or it does not.
But this brings me to another possible reading of Bankovic. Yes, it is true that,
technically speaking, all the Court does is dismiss a generally meritless argument.
But the Court nonetheless says so much more. It speaks of the ECHR as the
‘constitutional instrument of European public order’ (emphasis in original) and
the ‘essentially regional vocation’ of the ECHR system. The ECHR is, according
to the Court, a treaty operating in an ‘essentially regional context and notably in the
legal space (espace juridique) of the Contracting States’, that ‘was not designed to be
applied throughout the world, even in respect of the conduct of Contracting
States’.
All this talk about the European nature of the ECHR and its espace juridique
would be entirely irrelevant if all the Court was doing was dismissing the vacuum in
coverage argument on the grounds that there was no coverage in the first place.
What the Court really does here is to send a message: the European system of
human rights protection is successful precisely because it is a European system of
human rights protection, and we do not want to jeopardize it by opening it up to
others more than is strictly necessary. The thought of the floodgates opening to
litigation by ‘aliens’ affected by a European state’s overseas military adventure, and
of the consequences this might have for the ECHR regime already tottering under
the pressure of thousands of applications against human rights paragons such as
Russia and Turkey, was to the Court understandably unappealing. Think of it what
you will, but this fear of a deluge of litigation shaped the Court’s decision and the
message that it wanted to send. And that message was well heard, as we will now see
from the Al-Skeini case.
B. Relativism and regionalism in Al-Skeini

Recall that there were six applicants in Al-Skeini, all of them Iraqis. Five were shot
by British troops on patrol in Basra, or died in the course of British military action.
The sixth, Baha Mousa, was actually apprehended by British troops, and beaten to
death while in British custody. All six applicants claimed that the ECHR and the
HRA applied extraterritorially to the acts of British organs or agents in Iraq, and
that they were protected by Article 2 ECHR, which enshrines the right to life. The
applicants relied on the positive obligation of states to conduct an investigation into
a killing, and were not merely contending that the killings themselves were
unlawful under Article 2. In the first instance, the case was decided by the
Divisional Court;150 it was then considered by the Court of Appeal,151 and finally
by the House of Lords.152 As of the time of writing, it was pending before the
Grand Chamber of the European Court, which held oral hearings in the case in
June 2010.153
The applicants’ argument was fairly straightforward. The United Kingdom was
the occupying power in Basra. It had troops on the ground, and effective overall
control over Basra. Therefore, per Loizidou, it exercised jurisdiction over the Basra
area within the meaning of Article 1 ECHR, and the ECHR applied extraterrito-
rially under a spatial conception of jurisdiction. Alternatively, the applicants
submitted that they were as individuals under the authority and control of British
soldiers, and that this brought them within the United Kingdom’s jurisdiction,
jurisdiction this time conceived of personally. For its part, the UK government
contended, relying on Bankovic, that the ‘effective overall control of an area’ notion
of jurisdiction applies only to areas that already fall within the espace juridique of the
ECHR, i.e. to the territories of states parties, such as Cyprus, but not to third states
such as Iraq. Even if did, the government submitted that its control over Southern
Iraq was not effective for the purposes of Article 1 ECHR, despite it being an
occupying power. It further argued that the ‘authority and control over a person’
notion of jurisdiction was insufficiently supported by earlier case law, and that it
was at any rate manifestly contrary to Bankovic.
The Divisional Court agreed with the government on both points. It considered
that the European Court assigned critical significance to the ECHR as the consti-
tutional instrument of European public order, and to the vacuum argument
generally.154 Its holding that the effective overall control of an area test cannot
apply to an area that is itself not a part of an ECHR contracting state was only
confirmed by the apparent contradiction between an expansive interpretation of
Article 1 ECHR and the colonial clause, namely that the United Kingdom could
choose whether or not to apply the ECHR to its overseas dependencies, but that it
had no choice whether to apply it in Iraq.155 But the Divisional Court nonetheless
took great care to reject the government’s more overtly relativist argumentation:
We prefer to put the matter in this way, rather than on the basis which seemed at one point
to be urged on us by Mr Greenwood [counsel for the government], that there were
territories in the world, such as Iraq, for which the Convention was not designed and for
which they might not be ready. That seemed to us an unhappy submission to have to make
150
R. (on the application of Al-Skeini and Others) v. Secretary of State for Defence [2004] EWHC
2911 (Admin), [2004] All ER (D) 197 (Dec) (hereinafter Al-Skeini DC ).
151
R. (on the application of Al-Skeini and Others) v. Secretary of State for Defence [2005] EWCA Civ
1609, [2005] All ER (D) 337 (Dec) (hereinafter Al-Skeini CA).
152
R. (on the application of Al-Skeini and Others) v. Secretary of State for Defence [2007] UKHL 26,
[2008] AC 153 (hereinafter Al-Skeini HL).
153
See M. Milanovic, ‘Grand Chamber Hearings and Preview of Al-Skeini and Al-Jedda’, EJIL:
Talk!, 9 June 2010, available at <http://www.ejiltalk.org/grand-chamber-hearings-and-preview-of-al-
skeini-and-al-jedda/>.
154
Al-Skeini DC, paras 274–7.
155
Ibid., para. 278; see also above, Chapter I, Section 4.B.
about a country which was one of the cradles of civilisation. No one knows to whom the
baton or batons of the human race will be handed. The Convention was not created because
of the humanity of Europe, but because of its failures.156
Well put. But for all its admirable sentiment, the Divisional Court did not explain
why the regional nature of the ECHR, that was so stressed by the European Court
in Bankovic, actually mattered. If all the Convention did was to create a regional
enforcement mechanism for norms and values that are truly universal, why then
should the application of this treaty be confined solely to the territories of the
contracting states?
The Divisional Court thus found that the five applicants killed by British troops
while on patrol did not fall within the UK’s jurisdiction. However, the Court found
that the sixth applicant, who was killed while in British custody, was within the
UK’s jurisdiction, on the grounds that ‘a British military prison, operating in Iraq
with the consent of the Iraqi sovereign authorities, and containing arrested suspects,
falls within even a narrowly limited exception exemplified by embassies, consulates,
vessels and aircraft, and in the case of Hess v. United Kingdom, a prison’.157
What is so remarkable about this conclusion is that it is unsupported by any
broader consideration of principle. It in fact exemplifies the casuistry that is so
prevalent in the current case law on the extraterritorial application of the ECHR—
for which most of the blame, of course, must be laid at the feet of Strasbourg. It is
fair to say that, as a substantive matter, the (perhaps mistaken) killing of civilians by
patrolling troops in a combat area is less repugnant, morally or legally, then the
beating to death of a defenceless prisoner. But that does not mean that the two
situations are at all distinct as to whether the ECHR applies in the first place. If the
espace juridique doctrine promulgated by the European Court in Bankovic really
meant that the effective overall control notion of jurisdiction cannot apply beyond
the borders of European states, how could the ECHR then not apply in Basra, but
apply to a prison in Basra?
The applicants appealed the Divisional Court’s ruling. On appeal, the govern-
ment strategically conceded that the ECHR applied to Baha Mousa, but it main-
tained its objections regarding the extraterritorial applicability of the ECHR to the
other five applicants. The Court of Appeal affirmed the Divisional Court’s judg-
ment, though its reasons were somewhat different. With regard to Mr Mousa, Lord
Justice Brooke thought that he was within the UK’s jurisdiction because he ‘came
within the control and authority of the UK from the time he was arrested at the
hotel and thereby lost his freedom at the hands of British troops’, not on the basis of
an analogy between a UK prison and an embassy.158 In other words, he applied a
personal, rather than spatial, conception of jurisdiction. With respect to the other
five applicants, he also disagreed with the Divisional Court’s ruling that the
effective overall control of an area test can apply only within the espace juridique
of the ECHR. In his view, it was the fact that the UK actually did not have such
control over Basra, because of the intensity of the fighting and its lack of adequate
156 157 158

Ibid., para. 279. Ibid., para. 287. Al-Skeini CA, para. 108.
troops, that meant that the UK did not have jurisdiction over Basra within the
meaning of Article 1 ECHR, even though it was an occupying power.159 If the UK
did have effective control over Basra, per Bankovic it would have had to secure to
everyone in Basra all rights and freedoms guaranteed by the ECHR, and ‘[o]ne only
has to state that proposition to see how utterly unreal it is’.160 Though he dismissed
the government’s espace juridique argument, he nonetheless remarked that
. . . it is in any event very much open to question whether an effort by an occupying power
in a predominantly Muslim country to inculcate what the ECtHR has described (in Golder
v UK (1975) 1 EHRR 524 at para 34) as ‘the common spiritual heritage of the member
states of the country [sic] of Europe’ during its temporary sojourn in that country would
have been consistent with the Coalition’s goal, which was to transfer responsibility to
representative Iraqi authorities as early as possible.161
The learned judge was so taken with relativism that he apparently forgot not only
about the member states within the Council of Europe which are indeed ‘predomi-
nantly Muslim,’ e.g. Turkey, Albania, and Azerbaijan, but also the growing Muslim
population even in the countries of ‘old Europe’.162
The case then went to the House of Lords, where espace juridique made a grand
comeback. Five law lords heard the case. Lord Bingham held that, whatever the
extraterritorial applicability of the ECHR, the HRA had no extraterritorial applica-
tion, but the other four law lords disagreed—I will turn to his opinion shortly. For
his part, Lord Rodger agreed with the Divisional Court that the effective overall
control of an area test can only apply to territories that are already a part of the
espace juridique of the ECHR. In his view,
The essentially regional nature of the Convention is relevant to the way that the [European]
court operates. It has judges elected from all the contracting states, not from anywhere else.
The judges purport to interpret and apply the various rights in the Convention in accor-
dance with what they conceive to be developments in prevailing attitudes in the contracting
states. This is obvious from the court’s jurisprudence on such matters as the death penalty,
sex discrimination, homosexuality and transsexuals. The result is a body of law which may
reflect the values of the contracting states, but which most certainly does not reflect those in
many other parts of the world. So the idea that the United Kingdom was obliged to secure
observance of all the rights and freedoms as interpreted by the European Court in the utterly
different society of southern Iraq is manifestly absurd. Hence, as noted in Bankovic, 11
BHRC 435, 453–454, para 80, the court had ‘so far’ recognised jurisdiction based on
effective control only in the case of territory which would normally be covered by the
Convention. If it went further, the court would run the risk not only of colliding with
the jurisdiction of other human rights bodies but of being accused of human rights
imperialism.163
159 160 161

Ibid., paras 119–25. Ibid., para. 124. Ibid., para. 126.
162
See R. Wilde, ‘Compliance with human rights norms extraterritorially: “human rights imperi-
alism”?’, in L. Boisson de Chazournes and M. Kohen (eds), International Law and the Quest for its
Implementation/Le droit international et la quête de sa mise en œuvre, Liber Amicorum Vera Gowlland-
Debbas (Brill/Martinus Nijhoff, 2010), 319, at 329.
163
Al-Skeini HL, para. 78.
According to Lord Rodger and his reading of Bankovic, the European Convention
on Human Rights should not apply to Iraq precisely because it is the European
Convention on Human Rights. Indeed, applying it would amount to ‘human
rights imperialism’—in no small part because of the Bankovic holding that the
Convention is an all or nothing package.164 Because it is ‘manifestly absurd’ to
require the UK to secure, say, the right to equality of women, homosexuals, and
transsexuals in Iraq, it should also not be expected to respect the right to life of
Iraqis when it acts through its own troops.
Lord Rodger further argued that even if the espace juridique doctrine did not
preclude the effective overall control of area notion of state jurisdiction, the UK
could still not be said to have been in effective control of Basra.165 Baroness Hale
agreed with both points of Lord Rodger’s reasoning,166 and so did Lord Carswell167
and Lord Brown.168 Lord Brown in particular, like the Divisional Court, consid-
ered that the interaction between the jurisdiction clause in Article 1 ECHR and the
colonial clause in Article 56 ECHR mandated only one reasonable interpretation of
the northern Cyprus cases: that the sole rationale for the effective overall control of
an area test is the avoidance of a vacuum in coverage.169 As he put it,
How then could that principle [of effective overall control] logically apply to any other
territory outside the area of the Council of Europe? As the respondent submits, it would be a
remarkable thing if, by the exercise of effective control, for however short a time, over non-
Council of Europe territory, a state could be fixed with the article 1 obligation to secure
within that territory, without regard to local requirements, all Convention rights and
freedoms whereas, despite its exercise of effective control over a dependent territory, perhaps
for centuries past, the state will not be obliged to secure any Convention rights there unless
it has made an article 56 declaration and even then it would be able to rely on local
requirements.170
Lord Brown further opined that
. . . except where a state really does have effective control of territory, it cannot hope to
secure Convention rights within that territory and, unless it is within the area of the Council
of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to
secure reconcilable with the customs of the resident population. Indeed it goes further than
that. During the period in question here it is common ground that the UK was an
occupying power in Southern Iraq and bound as such by Geneva IV and by the Hague
Regulations. Article 43 of the Hague Regulations provides that the occupant ‘shall take all
the measures in his power to restore and ensure, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force in the country.’ The
appellants argue that occupation within the meaning of the Hague Regulations necessarily
involves the occupant having effective control of the area and so being responsible for
securing there all Convention rights and freedoms. So far as this being the case, however, the
occupants’ obligation is to respect ‘the laws in force’, not to introduce laws and the means to
enforce them (for example, courts and a justice system) such as to satisfy the requirements of
164 165 166

Al-Skeini HL, para. 79. Ibid., para. 83. Ibid., paras 85–92.
167 168 169
Ibid., paras 96–7. Ibid., para. 109. Ibid., paras 111–14.
170
Ibid., para. 113.
the Convention. Often (for example where Sharia law is in force) Convention rights would
clearly be incompatible with the laws of the territory occupied.171
As for the sixth applicant, Mr Mousa, Lord Brown recognized UK jurisdiction over
him ‘only on the narrow basis found established by the Divisional Court, essentially
by analogy with the extra-territorial exception made for embassies’.172
C. Relativism and regionalism evaluated: another

face of effectiveness
What are we thus to make of this jurisprudence on the ECHR’s espace juridique,
and how does Al-Skeini fit the case law of the European Court? Can the effective
overall control of an area test truly apply only to territories that were already covered
by the ECHR, as the House of Lords held?
As indicated above, the answer to the latter question must be no. First, the
argument that the ECHR cannot apply outside the territories of its contracting
parties taken collectively is textually equally as untenable as the argument that the
ECHR cannot apply outside the territory of the specific contracting party whose
conduct is being assessed. Nothing in Article 1 supports such an interpretation. The
word ‘jurisdiction’ in Article 1 either means ‘effective overall control of an area’, or it
does not. If it does, the legal status of the territory over which such control is
exercised is irrelevant. In fact, the only textual support for limiting the extraterritori-
al application of the ECHR to the contracting states’ espace juridique is the colonial
clause in Article 56, in other words the clear contradiction between requiring the
UK, for example, to abide by the ECHR in Iraq, but giving it the choice whether to
apply the ECHR or not to its own dependent territories.173 But that contradiction is
equally manifest if the UK had to abide by the ECHR while acting in the territory of
another member state, such as Cyprus. The only cure for this contradiction is to
deny the possibility of any application of the ECHR outside a state’s (metropolitan)
territory, an option that the European Court itself finds unpalatable.174
Secondly, the view that the espace juridique is an indispensable condition for the
extraterritorial application of the ECHR is not supported by the case law on which
the House of Lords relies. The European Court did not invoke the vacuum in
coverage argument in Loizidou, the case in which it devised the effective control of
an area test, but only in Cyprus v. Turkey, where it was of marginal importance.175
The same was true of Bankovic, where the vacuum argument was only the fifth of
the applicants’ alternative arguments, and was treated by the Court as such.176 If
the Court in Bankovic was truly announcing a bright-line rule that the ECHR
cannot apply outside the territories of states parties to the treaty, as the House of
Lords thought it did, it could have easily dispensed with the case in two paragraphs,
171 172
Ibid., para. 129. Ibid., para. 132.
173
On the colonial clause generally, see Chapter I, Section 4.B.
174
See also Loizidou (preliminary objections), paras 86–8.
175
Cyprus v. Turkey [GC], App. No. 25781/94, Judgment, 10 May 2001, para. 78.
176
Bankovic, paras 79–80.
and would not have needed to engage in the extensive and detailed (if fatally flawed)
discussion of extraterritoriality that it did.177
Thirdly, not only is the House of Lords’ judgment in Al-Skeini not in accordance
with Loizidou, Cyprus v. Turkey, and Bankovic, but it is also contrary to the
European Court’s post-Bankovic case law. Thus, in Issa v. Turkey, the applicants
were persons living in a part of northern Iraq that was invaded by Turkish forces,
who claimed that the ECHR applied to Turkish actions in Iraq. A Chamber of the
European Court held as follows:
The Court does not exclude the possibility that, as a consequence of the military action, the
respondent State could be considered to have exercised, temporarily, effective overall control
of a particular portion of the territory of northern Iraq. Accordingly, if there is a sufficient
factual basis for holding that, at the relevant time, the victims were within that specific area,
it would follow logically that they were within the jurisdiction of Turkey (and not that of
Iraq, which is not a Contracting State and clearly does not fall within the legal space (espace
juridique) of the Contracting States (see the above-cited Bankovic decision, } 80).
However, notwithstanding the large number of troops involved in the aforementioned
military operations, it does not appear that Turkey exercised effective overall control of the
entire area of northern Iraq. This situation is therefore in contrast to the one which obtained
in northern Cyprus in the Loizidou v. Turkey and Cyprus v. Turkey cases (both cited above).
In the latter cases, the Court found that the respondent Government's armed forces totalled
more than 30,000 personnel (which is, admittedly, no less than the number alleged by the
applicants in the instant case—see } 63 above—but with the difference that the troops in
northern Cyprus were present over a much longer period of time) and were stationed
throughout the whole of the territory of northern Cyprus. Moreover, that area was
constantly patrolled and had check points on all the main lines of communication between
the northern and southern parts of the island.178
Thus, the Court in Issa declared the application inadmissible, but on the factual
ground of lack of effective control by Turkey over northern Iraq. This of course
presumes that the ECHR could apply in Iraq, even though Iraq is not a part of its
espace juridique—a holding totally at odds with Al-Skeini. The law lords were well
aware of this, but chose to disregard Issa, considering it to be in conflict with
Bankovic, a ‘watershed’ decision by the Grand Chamber of the European Court.179
But at least on this (admittedly very superficial) level, Issa is not at odds with
Bankovic, as I have explained above. In disregarding Issa, their Lordships empha-
sized the fact that there were no other cases in which the European Court used the
effective overall control of an area test for a territory outside the ECHR’s espace
juridique. But that point entirely misses its mark, as no application asserting the
application of this test to a non-European territory was actually filed before Issa.180
177
See also Wilde, above note 147, at 118 et seq; T. Thienel, ‘The ECHR in Iraq’, (2008) 6 JICJ
115, at 119 et seq.
178
Issa v. Turkey, App. No. 31821/96, Judgment, 16 November 2004, paras 74 and 75.
179
180
The Court did, however, examine a number of cases dealing with extraterritorial situations outside
the Council of Europe, but under the personal conception of ‘jurisdiction’ as authority and control over
individuals—see below, Chapter IV, Section 3. See also Wilde, above note 147, at 120 et seq.
To sum up, the espace juridique doctrine, developed by the English courts in Al-
Skeini as a limitation on the extraterritorial application of the ECHR, has no
support either in the text of the treaty or in the case law of the European
Court.181 Now that Al-Skeini is before the European Court, it will hopefully take
the opportunity to make this clear. On the other hand, the alternative holding of
Al-Skeini, that British troops actually lacked effective overall control over Basra, is
far from implausible, and will be addressed in more detail in the next chapter of this
study.182
But having said that, although their Lordships’ decision in Al-Skeini does not rest
well with the text and holding in Bankovic, it nonetheless sits very well with
Bankovic’s overall spirit and tenor. Though the judges of the European Court
were considerably more coy than their English counterparts in expressing relativist
sentiment, it is again hard to escape the impression that they to a great extent shared
it. All that talk about the essentially regional and European nature of the ECHR
was not there for nothing. Whether they say it or not, the judges in Strasbourg are
fully aware that the ECHR’s strength—its European-ness—is also its weakness, if
the ECHR is to be applied extraterritorially. In other words, relativist considera-
tions plainly matter for judges in such cases, be it in the less (Iraq is ‘not ready’ for
the application of the ECHR) or the more politically correct variant (applying the
ECHR in Iraq would amount to ‘human rights imperialism’).183
The question, therefore, is not whether, but should such considerations matter.
To that normative question one could give an almost reflexive universalist an-
swer—much as I have already given one with regard to citizenship. When Lord
Carswell states that it would be ‘manifestly absurd’ for the UK to have to safeguard
the ECHR rights of homosexuals and transsexuals in Iraq, and that this would
moreover amount to ‘human rights imperialism’, a universalist response would be
that yes, the UK does have an obligation to protect the rights of sexual minorities,
and no, there is nothing imperialist or absurd about it. These rights are not just
European rights; universality of human rights is the law, and that is that.184 When
Lord Brown argues that occupying states have an obligation under Article 43 of the
1907 Hague Regulations to ‘[respect], unless absolutely prevented, the laws in force
in the [occupied] country’, and that the ECHR would often be incompatible with
such laws, especially Sharia, the universalist response would be—so what! To the
181
See Wilde, above note 147; Thienel, above note 177; Lawson, above note 3, at 114–15; P. Leach,
‘The British Military in Iraq—the Applicability of the Espace Juridique Doctrine under the European
Convention on Human Rights’, (2005) PL 448.
182
See Chapter IV, Section 2.C.3.
183
Relativism as grounds for denying individual rights protection is of course itself a theme with a
distinctly imperialist pedigree, as evident, for example, from the US Supreme Court’s early twentieth
century Insular Cases, in which it held that the protections of the US Constitution did not fully extend
to non-metropolitan territories over which the US had title, such as Puerto Rico. See generally
Raustiala, above note 22, at 79 et seq. See also Reid v. Covert, at 14 (per Black J.) (limiting the
applicability of Insular Cases and limiting them to ‘rules and regulations to govern temporarily
territories with wholly dissimilar traditions and institutions’.)
184
Not to mention that Iraq is a party to the ICCPR, which contains much the same rights as the
ECHR, and has been interpreted in much the same way by the Human Rights Committee as the
ECHR by the European Court.
extent that these laws, Sharia included, are incompatible with international human
rights, these laws—say, for example, the punishment of adultery by death by
stoning—would have to go. An occupying power would indeed be ‘absolutely
prevented’ from allowing the continuing existence of laws that are contrary to its
human rights obligations. Article 43 of the Hague Regulations needs to be read
flexibly, in light of the numerous developments in international law during the past
century, especially the advent of human rights.185 Or, perhaps, ultimately there
would be a norm conflict between the UK’s obligations under the ECHR and its
obligations under IHL, since states are perfectly capable of entering into contradic-
tory commitments.186
Regardless of whether one finds the universalist response to be persuasive, it is
beyond doubt that a gap opens up between the factual and the normative. On the
one hand, the differences, cultural or otherwise, between Europe and Iraq are
clearly vast. On the other, the single defining characteristic of human rights qua
human rights is that they are immanent in the human condition alone. ‘Human
rights imperialism’ is an oxymoron if the rights in question really are human rights.
But the gap still remains. Perhaps the wisest way of bridging it would be to dispense
for a time with the canards of the old universalist–relativist debate. The issue is not
so much whether the ECHR and its case law are contrary to the cultural mores of
the territory where it is to be applied, but whether the obligations arising from this
treaty can be realistically complied with.
If observed solely from this standpoint of effectiveness, the concerns expressed by
most of the British judges in Al-Skeini become clearer, but are also exposed as
somewhat exaggerated. The positive obligation to secure or ensure the human
rights of persons within a state’s jurisdiction, that arises once a state obtains effective
overall control over an area, is not an absolute one. It is an obligation of due
diligence, an obligation for a state to do all that can reasonably be expected of it,
taking into account all of the relevant circumstances.187 There is absolutely no
reason why this obligation should be read in exactly the same way when a state
applies the ECHR in its own territory in peacetime conditions and when a state
invades and occupies a foreign land. As explained by Lord Justice Sedley in his
opinion in Al-Skeini:
No doubt it is absurd to expect occupying forces in the near-chaos of Iraq to enforce the
right to marry vouchsafed by Art. 12 or the equality guarantees vouchsafed by Art. 14. But
I do not think effective control involves this. If effective control in the jurisprudence of the
ECtHR marches with international humanitarian law and the law of armed conflict, as it
clearly seeks to do, it involves two key things: the de facto assumption of civil power by an
occupying state and a concomitant obligation to do all that is possible to keep order and
protect essential civil rights. It does not make the occupying power the guarantor of rights;
185
See Thienel, above note 177, at 124–7.
186
See Section 9, as well as Chapter V below.
187
See also Velasquez Rodriguez Case, Judgment of 29 July 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4
(1988), para. 172; Application of the Convention on the Prevention and Punishment of the Crime of
Genocide, Judgment, 27 February 2007, para. 430.
nor therefore does it demand sufficient control for all such purposes. What it does is place an
obligation on the occupier to do all it can.188
Beside the considerable degree of flexibility that is inherent in the very concept of
due diligence obligations, it should also be borne in mind that the universality of
human rights does not demand total uniformity. Thus, for example, the assembled
heads of state and government affirmed in the 2005 World Summit Outcome
document that
. . . all human rights are universal, indivisible, interrelated, interdependent and mutually
reinforcing and that all human rights must be treated in a fair and equal manner, on the
same footing and with the same emphasis. While the significance of national and regional
particularities and various historical, cultural and religious backgrounds must be borne in mind,
all States, regardless of their political, economic and cultural systems, have the duty to
promote and protect all human rights and fundamental freedoms.189
The ECHR system itself allows its member states a significant ‘margin of apprecia-
tion’, i.e. the liberty to adopt different positions and solutions for some of the
same problems, that is especially pertinent in respect of moral controversies. As
noted by Lord Rodger in Al-Skeini,190 the European Court develops the ECHR
as a living instrument by reference to a growing consensus among European states
on a given issue, which thus serves as a limiting factor on the states’ margin of
appreciation. And so, for example, the Court found decades ago that there was a
European consensus against the criminalization of homosexuality, and that there-
fore the few states that were outliers on the issue had to conform to the opinion of
the majority, which demonstrated that such criminalization was not necessary in a
democratic society.191 On the other hand, there is still no European consensus on
the question when life that is worthy of legal protection truly begins,192 and states
are hence free either to prohibit or to liberalize abortion within certain limits.
Similarly, there is no consensus on whether states should recognize same-sex
marriages, and they accordingly still enjoy a wide margin of appreciation.193
To the extent that some of the state obligations that can arise under the ECHR
are subject to an evolving interpretation dependent on a European consensus, there
is no bar to varying the content of such obligations in an extraterritorial context.194
Again, the positive obligation to secure or ensure human rights requires a state to do
all that it reasonably can, not to do the impossible. In determining the content of
this obligation, it is entirely feasible to give ‘due regard for local requirements’, even
without an explicit provision to that effect in the treaty.195 How that content is to
188
Al-Skeini CA, para. 196.
189
World Summit Outcome Document 2005, UN Doc. A/RES/60/1, para. 121.
190
191
Dudgeon v. United Kingdom, App. No. 7525/76, Judgment, 22 October 1981.
192
Vo v. France, App. No. 53924/00, Judgment, 8 July 2004.
193
Schalk and Kopf v. Austria, App. No. 30141/04, Judgment, 24 June 2010.
194
See also Wilde, above note 162, at 332 et seq; Thienel, above note 177, at 122–4.
195
One could say that this would even be required by the principle of self-determination, which
courts could fully take into account when interpreting the ECHR—see Wilde, above note 162, at 339
be determined, and how that content is to be made effective, are questions
requiring policy and value judgments, and are best answered in each given case.
That in some cases this inquiry will be difficult is not reason enough to deny the
possibility of the extraterritorial applicability of the ECHR or some other human
rights treaty altogether, only to then invent an unprincipled ‘embassy’ or ‘prison’
exception to this supposed rule when our moral intuitions do not permit the result
that our soldiers outside our borders are free to torture and kill at will.
If, therefore, relativist considerations are put in the proper perspective, that of
effectiveness, the European Court’s exegesis in Bankovic on the ECHR’s ‘essentially
regional’ character becomes more or less meaningless. Without relativism, ‘Europe’
is just an arbitrary geographical label, devoid of any substance. That a human rights
treaty is a regional one is irrelevant to the question of its (extra-)territorial applica-
tion. It is the whole of Russia, from Kaliningrad to Vladivostok, that is a party to
the ECHR; the territorial application of the Convention does not end with the
Urals. Nor does the Convention’s writ in Turkey stop at the Bosphorus, nor are
Georgia, Armenia, and Azerbaijan somehow by definition not susceptible to its
coverage, merely because they are not in ‘Europe,’ even though they are parties to
the ECHR. There is, in other words, no principled reason for the ECHR’s
territorial scope of application to be any different in a given situation than that of
the ICCPR or the CAT merely on the basis that the former is a regional, and the
latter are universal instruments. To the extent that common heritage, cultural or
otherwise, can influence the application of a human rights treaty, considerations of
effectiveness are far from trivial and should be addressed on their own merits.
7. Preventing Arbitrary Distinctions and Results

and the Abuse of Law
Preventing arbitrariness is an instrumental rule of law consideration that frequently

comes out in favour of the extraterritorial application of a human rights instrument.
Consider, for example, the position of Justice Kennedy in Boumediene:
Yet the Government's view is that the Constitution had no effect there [in Guantanamo], at
least as to noncitizens, because the United States disclaimed sovereignty in the formal sense
of the term. The necessary implication of the argument is that by surrendering formal
sovereignty over any unincorporated territory to a third party, while at the same time
entering into a lease that grants total control over the territory back to the United States,
it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress
and the President the power to acquire, dispose of, and govern territory, not the power to
decide when and where its terms apply. Even when the United States acts outside its
borders, its powers are not ‘absolute and unlimited’ but are subject ‘to such restrictions as
are expressed in the Constitution.’ Murphy v. Ramsey, 114 U.S. 15, 44, 5 S.Ct. 747, 29 L.
et seq. See also R. Wilde, ‘Complementing Occupation Law? Selective Judicial Treatment of the
Suitability of Human Rights Norms’, (2009) 42 Israel L Rev 80.
Ed. 47 (1885). Abstaining from questions involving formal sovereignty and territorial
governance is one thing. To hold the political branches have the power to switch the
Constitution on or off at will is quite another. The former position reflects this Court's
recognition that certain matters requiring political judgments are best left to the political
branches. The latter would permit a striking anomaly in our tripartite system of govern-
ment, leading to a regime in which Congress and the President, not this Court, say ‘what the
law is.’ Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803).196
Note how Justice Kennedy considers deferring to the judgment of the political
branches, an issue that I will come to shortly. However, he refuses to do so,
emphasizing the Supreme Court’s own institutional role in preserving the rule of
law, and does so on the grounds that it would be unacceptable to ‘hold the political
branches have the power to switch the Constitution on or off at will’. It is the
arbitrary nature of the government’s theory that, by choosing where to imprison
people it can thereby choose to operate without legal constraint, made it unpalat-
able to an institution, the Supreme Court, which sees itself as the final guardian
against such arbitrariness. The Court was even more reluctant to accept the
government’s approach because it was not the product of historical circumstance
but was quite deliberate—on the advice of its lawyers, the government chose
Guantanamo as a detention facility precisely in order to be free of any legal
constraint.197
Similarly, consider the Human Rights Committee’s universality-inspired hold-
ing in Lopez Burgos that ‘it would be unconscionable to so interpret the responsi-
bility under article 2 of the Covenant as to permit a State party to perpetrate
violations of the Covenant on the territory of another State, which violations it
could not perpetrate on its own territory’.198 For his part, in his individual opinion
in Lopez Burgos Christian Tomuschat considered that to ‘construe the words
“within its territory” [in Article 2(1) ICCPR] pursuant to their strict literal meaning
as excluding any responsibility for conduct occurring beyond the national bound-
aries would, however, lead to utterly absurd results’.
Tomuschat appears to be invoking the idea—perhaps even a full-fledged canon
of interpretation—that legal norms should always be interpreted so as to avoid
196
Boumediene, at 2258–9.
197
See, e.g., Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys
General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Department of Defense,
28 December 2001, available in K. Greenberg et al. (eds), The Torture Papers (Cambridge University
Press, 2005), at 29 et seq.. The OLC’s advice was rightly criticized for
treat[ing] the Constitution the way aggressive lawyers treat the tax code, as an annoyance to
be evaded. It must be followed, if you cannot figure out how to get around it, but it is not of
any normative significance. And Guantanamo is in fact much like a tax shelter, something
created for no purpose but circumvention of the law . . . Treating the Constitution like the
tax code disrespects it, and to the extent that the Constitution is a charter of American
values, it disrespects those values.
K. Roosevelt, ‘Detention and Interrogation in the Post-9/11 World’, (2008) 42 Suffolk U. L. Rev. 1,
at 29.
198
Lopez Burgos v. Uruguay (1981) 68 ILR 29, para. 12.3. See also Celiberti de Casariego v. Uruguay
(1981) 68 ILR 41.
absurd results. However, whether courts or quasi-judicial bodies actually have the
authority to disregard or ‘fix’ treaty or statutory language merely because, in their
view, it leads to absurd results is at the very least non-obvious. In the international
law-specific context, Article 32 VCLT merely allows for recourse to supplementary
means of interpretation, such as the travaux, if interpretation under Article 31 leads
to manifestly absurd or unreasonable results. It does not, however, exclude the
possibility that the absurd or unreasonable result might, in fact, be confirmed by
having recourse to the supplementary means.199 That result may be exactly what
states wanted.
This is not to say that an assessment of arbitrariness or absurdity is irrelevant
when it comes to the extraterritorial application of human rights instruments. Far
from it. My point is that this assessment requires a policy and value judgment, and
that this judgment depends on some sort of moral or ideological baseline. When it
comes to human rights, that baseline is universality. It is because we normatively
regard human rights as rooted in a universally valid notion of human dignity that it
is absurd or arbitrary to make these rights dependent on naked title to territory.
However, because an assessment of arbitrariness is linked to some moral foun-
dation as a reference point, it may not on its own contribute much if that
foundation itself is contested. For example, for most European lawyers it would
be absurd and arbitrary to say that a UK national held in Iraq by the UK would be
protected from torture under the ECHR, but that an alien would not be so
protected. In mainstream American legal thought, however, it is not regarded as
absurd that a US national held in Iraq would have constitutional rights, while an
alien would not, because universality is largely (still) not seen as the foundation of
individual rights under the US Constitution.200 Recall that even with regard to
territorial title, it was only the barest 5 to 4 majority of the Supreme Court in
Boumediene that thought that it would be arbitrary to make individual rights
exclusively contingent upon it, but even the majority thought it to be relevant.
8. Political Questions, Deference, and Institutional Incompetence
Because of the political implications arising from judicial intervention in any given
case, deference is a major theme in the case law on the extraterritorial application of
human rights guarantees.201 In the domestic context, particularly the US one, the
199
See also Gardiner, above note 1, at 328–30.
200
See above, Section 5.
201
By ‘deference’ I mean the conscious choice of one decision-maker to withhold making its own
judgment on a matter—at least to an extent—opting rather to respect the judgment of another
decision-maker that appears to be more competent to make this judgment according to some pre-
defined criterion, such as expertise or democratic legitimacy. The term seems appropriate enough to me
in this context, although one should note the criticism it has attracted from high quarters:
. . . although the word “deference” is now very popular in describing the relationship
between the judicial and the other branches of government, I do not think that its overtones
of servility, or perhaps gracious concession, are appropriate to describe what is happening.
In a society based upon the rule of law and the separation of powers, it is necessary to decide
issue may be one of the separation of powers, and the proper degree of deference
that courts should accord to the political branches. In the UK context, with
domestic courts applying an international human rights treaty, we also have
deference to Strasbourg. For its part, the Strasbourg Court may also feel reluctant
to absorb the political fallout that a controversial decision in favour of terrorists or
what have you would bring both from the general public in European states and
from the states themselves, thus tempting it to produce various rationales for
dismissing applications on jurisdictional or admissibility grounds, rather than
examining them on the merits. In all of these cases, courts are motivated by fear
of their own institutional incompetence, perceived or real, and/or lack of a
democratic, political legitimacy.
Consider, for example, how Justice Scalia concludes his opinion in Rasul:
Departure from our rule of stare decisis in statutory cases is always extraordinary; it ought to
be unthinkable when the departure has a potentially harmful effect upon the Nation's
conduct of a war. The Commander in Chief and his subordinates had every reason to expect
that the internment of combatants at Guantanamo Bay would not have the consequence of
bringing the cumbersome machinery of our domestic courts into military affairs. Congress is
in session. If it wished to change federal judges’ habeas jurisdiction from what this Court had
previously held that to be, it could have done so. . . . For this Court to create such a
monstrous scheme in time of war, and in frustration of our military commanders’ reliance
upon clearly stated prior law, is judicial adventurism of the worst sort.202
Faced with such venomous criticism from the bench itself, it is little wonder that
the intervention of the Supreme Court into Guantanamo came slowly and half-
heartedly. It ultimately did come, however, with the majority of the Supreme Court
refusing to defer any longer to the judgment of the political branches. In the words
of Justice Kennedy in Boumediene:
Our opinion does not undermine the Executive's powers as Commander in Chief. On the
contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the
Judicial Branch. Within the Constitution's separation-of-powers structure, few exercises of
judicial power are as legitimate or as necessary as the responsibility to hear challenges to the
authority of the Executive to imprison a person. Some of these petitioners have been in
custody for six years with no definitive judicial determination as to the legality of their
detention. Their access to the writ is a necessity to determine the lawfulness of their status,
even if, in the end, they do not obtain the relief they seek.
Because our Nation's past military conflicts have been of limited duration, it has been
possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism
continues to pose dangerous threats to us for years to come, the Court might not have this
luxury. This result is not inevitable, however. The political branches, consistent with their
which branch of government has in any particular instance the decision-making power and
what the legal limits of that power are. That is a question of law and must therefore be
decided by the courts.
BBC v. ProLife Alliance [2003] UKHL 23, [2004] 1 AC 185, para. 75 (per Lord Hoffmann). To this
I would only add that in time of war or other great public emergency servility and concession are not
uncommon attitudes for courts to take.
202
Rasul, at 506.
independent obligations to interpret and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values while protecting the Nation from
terrorism. . . . The laws and Constitution are designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled; and in our system they are
reconciled within the framework of the law. The Framers decided that habeas corpus, a right
of first importance, must be a part of that framework, a part of that law.203
The split within the Court remained as large as ever, with Chief Justice Roberts
responding in the following terms:
So who has won? Not the detainees. The Court's analysis leaves them with only the prospect
of further litigation to determine the content of their new habeas right, followed by further
litigation to resolve their particular cases, followed by further litigation before the D.C.
Circuit—where they could have started had they invoked the DTA procedure. Not
Congress, whose attempt to ‘determine—through democratic means—how best’ to balance
the security of the American people with the detainees' liberty interests, has been uncere-
moniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its
extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater
role than military and intelligence officials in shaping policy for alien enemy combatants.
And certainly not the American people, who today lose a bit more control over the conduct
of this Nation's foreign policy to unelected, politically unaccountable judges.204
It is hard to escape the impression that had there been another major terrorist attack
on US soil since 9/11, it would have been highly unlikely that the Supreme Court
would have garnered enough courage to intervene with regard to the administra-
tion’s indefinite detention policy. The Chief Justice’s reference to the ‘rule of
lawyers’, i.e. ‘unelected, politically unaccountable judges’, is of course overly
dramatic. It is precisely because judges are less amenable to political pressure and
control that they are a safeguard against individual rights being swept away at a
majority’s whim. On the other hand, judges are not, and should not be, completely
insulated from political accountability for their actions, and it would be fanciful to
suggest that judicial intervention in the face of overwhelming public opinion can be
strong, or can persist indefinitely.
Chief Justice Roberts is right to point out, however, that it would be nonsensical
to confine the Court’s approach to the extraterritoriality of the Constitution to the
facts of Guantanamo, ‘a jurisdictionally quirky outpost’. Yet it is precisely in cases
of great political controversy that courts tend to issue narrow rulings that are
confined to very specific sets of facts. Thus, though the Supreme Court in
Boumediene did not confine its holding to Guantanamo, it left open the issue of
the extraterritorial application of the Constitution to US detention facilities in Iraq
or Afghanistan, such as Bagram. Likewise, the Court said nothing about the
substantive question of the authority to detain on preventive grounds and the law
governing it, with both of these issues now percolating through the lower courts,
203
Boumediene, at 2277.
204
Ibid., at 2293 (per Roberts CJ, citations omitted).
which are forced to go about this business without guidance from above, often
producing conflicting results.205
This tendency of political controversy to lead to narrow, even unprincipled
rulings, incapable of providing guidance for the future and leading to conflicts in
the jurisprudence, is manifest in the case law of the European Court. Consider, for
example, how that case law was seen by the UK courts in Al-Skeini. In the Court of
Appeal, Lord Justice Sedley somewhat euphemistically remarked that the ‘decisions
of the European Court of Human Rights do not speak with a single voice’,206 a
remark echoed by Lord Rodger in the House of Lords.207 All of the British judges
exhibited a considerable degree of frustration with Strasbourg, and resented the fact
that it produced an incoherent jurisprudence from which they had to pick and
choose without any certain criteria. Hence, they were naturally predisposed to give
as narrow an interpretation of the territorial scope of the ECHR as possible under
Strasbourg jurisprudence. In the words of Lord Brown:
There seems to me, indeed, a greater danger in the national court construing the Conven-
tion too generously in favour of an applicant than in construing it too narrowly. In the
former event the mistake will necessarily stand: the member state cannot itself go to
Strasbourg to have it corrected; in the latter event, however, where Convention rights
have been denied by too narrow a construction, the aggrieved individual can have the
decision corrected in Strasbourg.208
Baroness Hale likewise remarked that
[w]hile it is our task to interpret the Human Rights Act 1998, it is Strasbourg’s task to
interpret the Convention. It has often been said that our role in interpreting the Convention
is to keep in step with Strasbourg, neither lagging behind nor leaping ahead: no more, as
Lord Bingham said in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323,
para 20, but certainly no less: no less, as Lord Brown says at para 106, but certainly no more.
If Parliament wishes to go further, or if the courts find it appropriate to develop the common
law further, of course they may. But that is because they choose to do so, not because the
Convention requires it of them.209
Nowhere is this ‘let Strasbourg fix it’ attitude more apparent than in the opinion of
Lord Bingham. Recall that unlike the other law lords, he was of the view that the
Human Rights Act did not apply extraterritorially, relying on a presumption
against extraterritorial application of domestic legislation, and that thus the ques-
tion of the ECHR’s extraterritorial application did not arise domestically.210 That
was at least the (unconvincing) reason he formally gave. As the other law lords
pointed out, why should Parliament have legislated a narrower scope of application
for the HRA in domestic law than the one of the ECHR in international law, when
this would in no way have violated the sovereignty of other states, and when the
205
Thus, for example, post-Boumediene a US District Court found that habeas did extend to
Bagram, but was overruled on that point by the DC Circuit Court of Appeals—see Maqaleh v. Gates,
No. 09-5265, 21 May 2010. See also Keitner, above note 4, at 22 et seq; Raustiala, above note 22, at
214 et seq.
206 207
Al-Skeini CA, para. 192. Al-Skeini HL, para. 67.
208 209 210
Ibid., para. 106. Ibid., para. 90. Ibid., para. 26.
whole purpose of the HRA was to provide domestic remedies for ECHR violations,
so that applicants did not have to, and could not, immediately petition Stras-
bourg? 211
The subtext of his opinion was simply that he did not wish to have to sort
through Strasbourg’s mess. He thought it ‘not only unnecessary but unwise’ to
express an opinion on the extraterritorial application of the ECHR,212 as there
‘could scarcely be a more fundamental question, nor one more obviously suitable
for resolution (in a doubtful case) by a supranational rather than a national
court’.213 He concluded that
[i]f any of these claimants pursues an application against the UK at Strasbourg, as it is of
course open to them to do, the court there will rule on the admissibility of the applications.
I do not think that any useful purpose is served by seeking to predict what its decision will be
or to suggest what it should be.214
Lord Bingham’s sentiment—‘passing the buck’ in the American idiom—is perfect-
ly understandable, in the context of political controversy coupled with a lack of
legal certainty. Why should, after all, a British judge applying the ECHR have to
decide as a matter of first impression on issues that Strasbourg itself wants to
avoid?215
It is almost trite to say that courts tend to be more cautious and deferential in
times of war or other public emergency, or that they are never truly insulated from
the tides of public opinion. This tendency is frequently embodied in the fixation on
preliminary questions, such as standing, admissibility, or jurisdiction, through the
medium of which courts can avoid addressing the merits of hotly contested
disputes. This, in my view, goes a long way in explaining the incoherence of the
Strasbourg jurisprudence on Article 1 ECHR. It is understandable that, in the wake
of 9/11, the European Court in Bankovic was reluctant to open the floodgates to
litigation coming from places like Afghanistan or Iraq, particularly because exam-
ining such cases would frequently involve the application of international humani-
tarian law, in which the Court lacks both experience and expertise. The practical
211
Ibid., paras 50, 54–60 (per Lord Rodger); para. 88 (per Baroness Hale); para. 96 (per Lord
Carswell); paras 140–50 (per Lord Brown).
212
Ibid., para. 27.
213
Ibid., para. 28.
214
Ibid., para. 32.
215
We can see a similar tendency in R. (Smith) v. Secretary of State for Defence [2010] UKSC 29, a
case before the UK Supreme Court dealing with the ECHR rights of UK soldiers stationed in Iraq, that
we will be examining in more detail in Chapter IV, Section 3.C.3. below. Thus, for example, Lord
Phillips remarked that (para. 60):
We are here dealing with the scope of the Convention and exploring principles that apply to
all contracting States. The contention that a State’s armed forces, by reason of their personal
status, fall within the jurisdiction of the State for the purposes of article 1 is novel. I do not
believe that the principles to be derived from the Strasbourg jurisprudence, conflicting as
some of them are, clearly demonstrate that the contention is correct. The proper tribunal to
resolve this issue is the Strasbourg Court itself.
Similarly, see also the judgments of Lord Hope (paras 90–93, esp. 92: ‘A decision of that kind is best
left to Strasbourg’) and Lord Brown (para. 147).
difficulties in obtaining a reliable factual record could likewise be immense.216 As a

distinguished commentator put it, ‘are these really questions which are fitting for a
Court of Human Rights to address?’217
However, that the Court’s reluctance is understandable does not mean that it is
justifiable, and it has inevitably led to an Article 1 jurisprudence which is lacking in
principle. I agree with Rick Lawson218 that it would have been more intellectually
honest for the Court in Bankovic to have invented on the spot a political question or
justiciability doctrine that would have allowed it to keep the floodgates closed, if
this is what it feared—in that regard, the American approach is to an extent more
open and transparent. Yet, of course, because such doctrines do not fit very well
with notions of human dignity and universal human rights, by doing so the Court
would have openly gone against the basic values that it is meant to protect. The
middle path it chose was understandably appealing.
My main suggestion is this: there is ample room for various forms of deference
and flexibility on the merits. This is where these disputes are to be resolved, and
where the hard questions lie. Denying the extraterritorial applicability of human
rights treaties on the basis of wholly arbitrary criteria only serves to push these hard
questions under the carpet, but they will not stay there forever. Though the
temptation to delay deciding on such controversial questions as overseas security
detention or the use of drones for targeted killings is understandable, giving into it
only creates more problems in the future. Eventually, the buck must stop some-
where.
9. Effectiveness and Norm Conflict

Another factor which leads courts to limit the extraterritorial applicability of human
rights instruments is their desire to avoid norm conflicts. Consider, for instance, the
circumstances of the Afghan Detainees case. Assume that the Canadian Charter of
Rights and Freedoms applied extraterritorially, and that it prohibited Canadian
soldiers from transferring detainees in their custody to Afghan authorities if a
216
Thus, in an interview given after his retirement, the former President of the European Court
Luzius Wildhaber (who inter alia presided over the Bankovic Grand Chamber) remarked that
. . . from the point of view of evidence, extra-territoriality poses a problem. How can the
Court function effectively as a court when there is no prospect of it acquiring reliable
evidence concerning the situation beyond the frontiers of Member States? Does expecting
the Court to act in such circumstances not risk turning it into a campaigning organisation
making allegations without solid evidence? For judges like me seeking to avoid this risk this
is a compelling reason to be very careful about extending the notion of extra-territoriality
too far and to be wary about departing too much from the Bankovic judgment.
S. Greer, ‘Reflections of a Former President of the European Court of Human Rights,’ (2010) EHRLR
169, 174. On the other hand, one could observe that the Court has to grapple with such evidentiary
difficulties even within Europe, and not without success, particularly with regard to disappearances and
other human rights violations in Chechnya.
217
See M. O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdic-
tion: A Comment on “Life After Bankovic” ’, in Coomans and Kamminga 125, at 135.
218
Lawson, above note 3, at 116.
serious risk was established that they would be subjected to inhuman treatment. At
the same time, under its agreement with the Afghan government that allowed for
the presence of Canadian troops on Afghan soil, Canada undoubtedly has an
international obligation to comply with a request by the Afghan government to
transfer any prisoners to its custody. If a serious risk of ill-treatment was in fact
established, there would exist a conflict between Canada’s obligations under a norm
of its own constitutional law and a norm of international law. As far as international
law is concerned, that conflict can only be resolved in favour of international law,
since compliance with rules of domestic law—even domestic constitutional law—
cannot be an excuse for failing to abide by rules of international law.219 Domestic
constitutional law can of course see things differently.220 It is precisely because
Canadian authorities would have been faced with the choice of complying with
their treaty obligation and violating the Charter, or complying with their own
constitution and violating the treaty, that it was an attractive option for courts to
say that the Charter did not apply extraterritorially.
But that is not the end of the matter. If the Charter can apply extraterritorially to
the Afghan detainees, so can the human rights treaties to which Canada is a party,
notably the ICCPR and the CAT. These treaties can also create non-refoulement
obligations, i.e. obligations not to surrender or return a person, when there is a
serious risk of torture or inhuman treatment, as for example in the famous Soering
case.221 It would then be not just Canadian constitutional law and a norm of
international law that would be conflicting—there would be a conflict between two
norms of international law equally binding on Canada.
In international law, such situations of norm conflict are a part of the broader
phenomenon of fragmentation.222 I have examined the implications of such norm
conflicts on human rights elsewhere in more detail,223 while Chapter V of this
study will deal more exhaustively with norm conflicts, human rights, and humani-
tarian law. Briefly, there are three basic ways of handling norm conflicts. First, they
can be avoided through interpretation, in essence by interpreting one of the two
conflicting norms downwards so that the conflict is only apparent, but not genuine.
Secondly, if a norm conflict cannot be avoided through the harmonious interpreta-
tion of the two norms, it could be resolved by giving priority to one norm over
another, on the basis of hierarchy or a hierarchy-like rule, such as jus cogens, but this
is rarely a viable option.224 Finally, in international law it is entirely possible that
219
See Art. 27 VCLT; Art. 3 ILC ASR; Reparation for Injuries Suffered in the Service of the United
Nations, Advisory Opinion, ICJ Reports 1949, 174, at 180.
220
See, e.g., Reid v. Covert, 354 U.S. 1, 15–18 (1957) (holding that, from the standpoint of US
law, the Constitution and its constraints on the actions of the government prevail over contrary
treaties).
221
222
See generally ILC, ‘Fragmentation of International Law: Difficulties Arising from the Diversifi-
cation and Expansion of International Law’, UN Doc. A/CN.4/L.682 (13 April 2006).
223
See M. Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?’, (2009) 20
Duke J. Comp. & Int’l L. 69.
224
Hierarchical rules generally and jus cogens specifically are very few in number, and are of little
practical relevance. For example, that the prohibition of torture and (possibly also) inhuman treatment
there are norm conflicts that are both unavoidable and unresolvable. States are, like
human beings, entirely capable of entering into mutually contradictory commit-
ments. In such cases, a court can do nothing but affirm the validity of both norms
and apply the norm that it was asked to apply in the first place, while the conflict
itself could only be resolved by political means, for instance by renegotiating one of
the conflicting treaties. If that is impossible, the state that bound itself by two
conflicting norms has a political choice to make—which norm to abide by, and
which norm to breach and incur responsibility for doing so.
To see norm conflict avoidance at work, we need only turn back to our Afghan
Detainees example. As for the Canadian Charter, we have already seen that the
courts avoided the norm conflict by denying that the Charter applied extraterrito-
rially. If we were to look at the case from a human rights treaty standpoint, it could
be argued that though the treaty between Afghanistan and Canada on the surrender
of detainees contained no provisions on non-refoulement, such a provision should be
implicitly read into it, because of the wide acceptance of the non-refoulement
principle in international law, including human rights treaties to which both
Afghanistan and Canada are parties. This would be a human rights-friendly form
of avoidance, but it would involve a risky assumption of authority on the part of
courts, which would be reading human rights content into treaties when it is
actually not there. Alternatively, it is the non-refoulement prohibition that could
be interpreted downwards, either by denying that the human rights treaty applied
extraterritorially, or by saying that the non-refoulement prohibition should be
qualified in an extraterritorial setting.
Courts are plainly concerned with norm conflicts—it is natural for judges to
abhor antinomies. Rather than face the possibility that the law as created by states is
incoherent, it may be easier to simply deny that one of the conflicting norms,
specifically a human rights treaty, applies altogether. This is really where the link
between the conceptually distinct issues of extraterritorial application of human
rights treaties and norm conflict is at its strongest, as the (generally laudable) goal of
advancing cohesion in international law by avoiding norm conflict might work
against extraterritorial application. One notable recent example is the Al-Saadoon
case litigated before UK courts and the European Court, dealing with the UK’s
non-refoulement obligations under the ECHR with regard to detainees in Iraq, in
which UK courts denied that the ECHR applied in Iraq precisely so that they could
avoid a norm conflict. I will deal with this case in more detail below.225 For the
time being, however, my point is this: the possibility of norm conflict is not reason
enough to deny the extraterritorial applicability of human rights treaties, as such
conflicts can occur even when the treaties are being applied in the state’s own
is jus cogens does not automatically entail that the non-refoulement obligation arising from this
prohibition is also jus cogens.
225
See R. (Al-Saadoon and Another) v. Secretary of State for Defence [2008] EWHC 3098 (Divisional
Court); [2009] 3 WLR 957, [2009] EWCA Civ 7 (Court of Appeal); Al-Saadoon and Mufdhi v. United
Kingdom (dec.), App. No. 61498/08, 30 June 2009; Al-Saadoon and Mufdhi v. United Kingdom, App.
No. 61498/08, Judgment, 2 March 2010.
territory, as in Soering. The wisest method of avoiding such conflicts is to act pre-
emptively, when the potentially conflicting rules are being created. For example,
had the treaty between Afghanistan and Canada contained a provision stating that
their obligations under the treaty were subject to their obligations under inter-
national human rights law, the conflict could not have arisen in the first place.
When, however, such a conflict does arise, when states assume contradictory
obligations either through lack of adequate caution or because of purposeful
vagueness or ambiguity when negotiating a treaty text, then states should at least
in some cases be expected to bear the consequences.
10. Between Universality and Effectiveness

A. What does and what should matter
What are the conclusions that can be drawn from this examination of the case law?
Perhaps the most important and the most obvious such conclusion is that the
extraterritorial applicability of individual rights depends foremost on the underlying
ideological normative foundation of these rights. In international human rights law,
that basis is universality, and universality sets a benchmark against which all other
considerations are to be tested. In other systems, such as the US one, universality has
not attained such status, and the system itself is normatively torn between it and other
justifications for individual rights, such as the various theories of social compact.
From this universality baseline, which requires at least a rational justification for
a wholesale denial of rights, we can say the following about the policy considera-
tions examined above.
First, title over territory should be essentially irrelevant for assessing the territorial
scope of application of human rights treaties. The state’s capacity either to violate
or to protect human rights in a given territory does not depend one whit on
whether it possesses title or de jure sovereignty over it. Nor does it depend on
whether the state is lawfully present in the territory, say pursuant to a lease or
generally with the consent of the territorial state. It is only the state’s actual control
over the territory that matters. With the possible exception of the ICCPR, human
rights treaties only require the state’s lawful or unlawful exercise of jurisdiction over
territory, but not title, to be applicable. This is neither a break with the traditional
Westphalian order, nor with some general position in international law on the
extraterritoriality of treaties (as there is none), nor is it a consequence of globaliza-
tion. It is the logical conclusion of adopting universality as the foundation of
human rights. Conversely, however, this also means that when a state loses control
over its own territory, when it in fact no longer has jurisdiction even though it
might have a right to exercise it, it should not be expected to secure or ensure the
rights of the territory’s inhabitants.226 Hence, the human rights-friendly result in
226
Thus, for example, in its 1994 Concluding Observations on Cyprus the Human Rights
Committee noted that Cyprus ‘is not in a position to exercise control over all of its territory and
Ilascu that Moldova has positive obligations toward persons present in Transnistria,
over which it has title but no control, should in my view be rejected, as it under-
mines the broader principle that it is only the state’s capacity to act, and not its
territorial title, that should matter.227
Secondly, when a state in fact exercises effective overall control over the territory
of another state, whether lawfully or unlawfully, the sovereignty of the latter is as
such irrelevant for the territorial scope of human rights instruments. It is simply
mistaken to say that imposing international human rights obligations on, say, UK
troops in Iraq or Afghanistan, would somehow ipso facto violate the sovereignty of
these states. The same would go for domestic individual rights protections. It is of
course true that the international law doctrines of prescriptive and enforcement
jurisdiction have something to say as to when domestic law can apply extraterritor-
ially, but international law in no way prohibits the regulation by a state of the
conduct of its own nationals or organs or agents abroad. Requiring Canadian troops
in Afghanistan, or Canadian police in the Turks and Caicos, to abide by the
Canadian Charter no more infringes on the sovereignty of Afghanistan or the
Turks and Caicos than does requiring Canadian agents to abide by Canadian
criminal law. Where the extraterritorial context can matter is on the merits, by
adding some flexibility to rules that were originally developed for purely domestic
application.
Likewise, it is perfectly possible that the extraterritorial application of a human
rights treaty may lead to a norm conflict with the state’s other international
obligations. That might not be altogether desirable, but avoidance of norm conflict,
or coherence in international law generally, is not some sort of paramount concern
which all other considerations should be subject to. Rejecting extraterritorial
application just for the sake of avoiding a norm conflict (as was done by the English
Court of Appeal in Al-Saadoon),228 is not in my view a position tenable in the
long term.229
Thirdly, as for citizenship, as I have said above its relevance depends entirely on
the ideological foundation of a given individual rights instrument. As we have seen
from US case law, social compact theories are still dominant, and courts there
almost naturally distinguish between the Constitution’s extraterritorial applicability
to citizens and to non-citizens. Whether this approach will hold in the future
consequently cannot ensure the application of the Covenant in areas not under its jurisdiction’.
Concluding Observations of the Human Rights Committee: Cyprus, UN Doc. CCPR/C/79/
Add.39 (1994), sec. 2.
227
See also Ilascu and others v. Moldova and Russia [GC], App. No. 48787/99, Judgment, 8 July
2004; Partially Dissenting Opinion of Judge Bratza, joined by Judges Rozakis, Hedigan, Thomassen,
and Pantiru, para. 8. See further Treska v. Albania and Italy (dec.), App. No. 26937/04, 29 June 2006,
where a Chamber of the Court seemed to interpret Ilascu as holding that ‘[e]ven in the absence of
effective control of a territory outside its borders, the State still has a positive obligation under Article 1 of
the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to
take and are in accordance with international law to secure to applicants the rights guaranteed by the
Convention’ (emphasis added).
228
See further Chapter V, Section 3 below.
229
See further Milanovic, above note 223.
remains to be seen, considering that aliens are indeed protected within US territory,
and in light of the fact that citizens can pose a danger to the polity as easily as aliens,
as the UK example of home-grown terrorism shows. However, in international
human rights law this is at least normatively no longer an issue, with the exception
of a narrow category of political rights. Not only would there be no basis in treaty text,
but it would be entirely antithetical to universality to say that, in whatever scenario, a
human rights treaty would apply extraterritorially to citizens, but not to non-citizens.
Fourthly, with regard to regionalism the situation is somewhat more complicat-
ed. As we have seen, it is a major theme in ECHR jurisprudence, particularly in
Bankovic where the European Court held that the ‘Convention was not designed to
be applied throughout the world, even in respect of the conduct of Contracting
States’ and that it operates ‘in an essentially regional context and notably in the legal
space (espace juridique) of the Contracting States’.230 Somewhat more poetically,
the then President of the Court, Luzius Wildhaber, remarked that the Convention
was never ‘intended to cure all the planet’s ills’.231 Put aside for a moment the fact
that, with all due respect to the authority of those who made them, both of these
statements about what the Convention was meant, designed, or intended to do are
entirely unsupported—there is little evidence either in the travaux or elsewhere that
the Convention’s drafters gave any serious thought to the issue of its extraterritorial
application—these statements are still only half-true, if that. Yes, of course, one
could say that the Convention was not meant to apply throughout the world, nor to
cure all of its ills—nor could it do so even if it was meant to do so. But why should it
not apply to the conduct of contracting states, whether in ‘Europe’ (now presum-
ably including all of Russia, Turkey, Georgia, Azerbaijan, and so forth) or outside
it? A justification must be offered for this position, beyond just saying that the
ECHR is a regional instrument, pulling out of the hat a concept such as the espace
juridique, and wrapping it up in French for good measure just so it could sound a
tad more sophisticated and respectable.
To my mind, only one such principled justification exists—relativism. It is only
if one openly embraces the position that human rights are not universal, whether
because some societies are ‘not ready’ for them or because they do not want them,
that regionalism makes any sense as grounds for denying the extraterritorial
applicability of human rights treaties. Whatever the validity of the position in
philosophical terms, it is very hard, if not impossible, for courts to overtly adopt it.
Though the gap between the factual and the normative is evident, human rights
treaties are undoubtedly based in universality. It is nothing less than their driving
force. And if that is so, then the regional nature of treaties such as the ECHR and
the ACHR does not distinguish them in any way from universal human rights
treaties with regard to their extraterritorial application. Nor could the ECHR,
for example, not apply to the bombing of Belgrade, but apply to the bombing
of Brussels—or Tbilisi for that matter—merely because the latter are in the
Convention’s ‘espace juridique’. If double standards for ‘us’ and ‘them’ are openly
230
Bankovic, para. 80.
231
Quoted according to O’Boyle, above note 217, at 125.
espoused—as is the case with the reliance on citizenship in the United States—then
such a result could be defended. If, on the other hand, human rights really are
human rights, then regionalism becomes essentially irrelevant. As I have said above,
this is not to minimize the practical difficulties arising from applying human rights
treaties extraterritorially in a foreign land, particularly with regard to positive obliga-
tions. However, such difficulties can be and can only be addressed on the merits, not
artificially downplayed by denying the applicability of the treaty in the first place.
We have seen what does not, or should not matter, but what does? Surely it
would be simply utopian to say that universality alone determines all outcomes, or
that it should do so? Indeed it would be. What matters most for courts dealing with
extraterritorial human rights cases are their own fears: fear of complexity, fear of
imposing constraints on the government which are simply unrealistic, fear of norm
conflict, fear of institutional incompetence, fear of treading on what are tradition-
ally the provinces of the political branches, and, last but not least, fear of the
potential political fallout and adverse consequences for their own position and
status. Some of these fears are descriptively relevant, but should normatively be
disregarded. Others are unwarranted or exaggerated, as is for instance the case with
norm conflict. Yet others, however, are both real and legitimate, and need to be
addressed if a persuasive argument in favour of extraterritorial application is to
be made. It is these fears that I will generally consider under the rubric of effectiveness.
Effectiveness can mean many things. In a limited sense, it can go hand in hand
with universality and favour the extraterritorial application of a domestic or
international instrument protecting human rights. It cuts to the reality of things,
by dispensing with formal categories such as sovereignty, which have precisely zero
effect on the state’s capacity to either secure or violate human rights, in favour of
tangibles like actual control, as, for example, in Loizidou or in Boumediene, and
forces the state to provide a real justification for a denial of rights. In most cases,
however, considerations of effectiveness will not favour extraterritorial application
unless they are given due regard. A tension thus builds between universality and
effectiveness—a reflection, if you will, of the twin demands of normativity and
concreteness in international law generally.232
In my view, four such considerations of effectiveness are absolutely vital: (1)
flexibility—the extraterritorial application of human rights protection must not tie
the hands of the state behind its back; the interpretation of applicable rules must be
realistic, and take fully into account the extraordinary circumstances in which the
treaty is being applied, potentially requiring significant adjustments from normal
conditions; (2) impact—while the normal human rights regime needs to be
adjusted for extraterritorial application, it must also contribute something useful
so that the whole exercise is worth the bother; (3) regime integrity—likewise,
though the normal regime may need to be watered down, it must not be watered
down so much that the regime as a whole is potentially compromised; (4) clarity
and predictability—arguments offered by the parties, and the rules ultimately
232
See Koskenniemi, above note 2, at 16 et seq.
adopted, must be reasonably clear and predictable, both on preliminary and on
substantive issues.
Universality notwithstanding, an argument in favour of extraterritorial applica-
tion which does not take these considerations into account will not persuade either
courts or governments. I will address each in turn.
B. Effectiveness: flexibility
Fears that applying human rights guarantees extraterritorially would prove to be
wholly impracticable permeate all of the case law that we have examined. With
regard to extraterritorial searches, for example, Justice LeBel in Hape put much
emphasis on ‘the theoretical and practical difficulties arising out of an attempt to
apply Charter standards outside Canada’,233 arguing that extending Charter guar-
antees extraterritorially would hamper cooperative investigations, precisely at a time
when criminal activity has become globalized.234 Such was also the focus of Justices
Rehnquist235and Kennedy236 in Verdugo-Urquidez, with the latter stressing that
applying Fourth Amendment requirements for a reasonable search and seizure in an
extraterritorial context would be anomalous and impracticable.237
Similarly, when it comes to overseas detention, other than citizenship the main
theme of Justice Jackson in Eisentrager was the practical difficulties that extending
habeas corpus and other constitutional rights extraterritorially would produce,
especially in wartime or during military occupation.238 Likewise, in the Guanta-
namo cases the major theme of the judges arguing against the extraterritorial
application of the Constitution was that judicial interference would severely ham-
per the Executive’s ability to effectively wage war,239 while the judges on the other
side downplayed these difficulties.240 And in Al-Skeini judges openly declared that
233 234
Hape, para. 86 (per LeBel J). Ibid., paras 96 et seq (per LeBel J).
235
Verdugo-Urquidez, at 273–5.
236
Ibid., at 275–9. Justice Kennedy was in particular relying on Justice Harlan’s view in Reid v. Covert
that ‘there is no rigid and abstract rule that Congress, as a condition precedent to exercising power over
Americans overseas, must exercise it subject to all the guarantees of the Constitution, no matter what the
conditions and considerations are that would make adherence to a specific guarantee altogether impracti-
cable and anomalous’. Reid v. Covert, 354 U.S. 1, 74 (1957) (Harlan, J., concurring).
237
See also G. Neuman, ‘Understanding Global Due Process’, (2009) 23 Geo. Immigr. L.J. 365, at
373–5.
238
Eisentrager, at 779, 782–3.
239
See, e.g., Rasul, at 498–9 (per Scalia, J); Boumediene, at 2294 (per Scalia, J.).
240
Thus, for instance, the majority in Boumediene argued that the protections granted by habeas
corpus to suspected terrorists held overseas need not resemble habeas corpus in regular criminal trials,
and so unreasonably tie the hands of the executive:
Although we hold that the DTA is not an adequate and effective substitute for habeas
corpus, it does not follow that a habeas corpus court may disregard the dangers the
detention in these cases was intended to prevent. Felker, Swain, and Hayman stand for
the proposition that the Suspension Clause does not resist innovation in the field of habeas
corpus. Certain accommodations can be made to reduce the burden habeas corpus pro-
ceedings will place on the military without impermissibly diluting the protections of the
writ.
Boumediene, at 2276 (per Kennedy, J).
it would be ‘utterly unreal’241 and ‘manifestly absurd’242 to expect of the UK to

secure all ECHR rights in occupied Iraq.
Forget red herrings such as comity or deference to the sovereignty of the
territorial state, or unpersuasive invocations of the international law of prescriptive
jurisdiction—effectiveness is paramount.243 Judges are simply loathe to place bur-
dens on governments that they could not realistically be expected to fulfil.244
Whatever the dictates of universality, the case law on extraterritorial application
will become sensible and rest on a principled basis only if courts are persuaded that
a finding of such application as a preliminary matter would not ipso facto lead to a
loss for the government on the merits (as has indeed mostly been the case so far),
and it is only then that the governments themselves would be willing to accept that
human rights instruments do in fact apply.245
Flexibility in the substantive application of the rules is therefore necessary if they
are to be applied extraterritorially, and the reason why extraterritorial application
does not happen more often in practice is precisely because courts and governments
are concerned that flexibility will be lacking on substance. There are two deeper
reasons why this is so. First, the text of the instrument in question may itself be
rigid and inflexible. This is particularly the case, for instance, with the US Consti-
tution, which is a much older document than other individual rights instruments
and tends to use very absolutist language, thus posing serious difficulties of
interpretation, in essence requiring the judges to significantly adapt the text if it
were to apply extraterritorially in a realistic manner. Human rights treaties are
much more flexible because most guaranteed rights are subject to express limitation
clauses, and because they explicitly allow for derogation from some rights in
situations of emergency.246
The second, more fundamental, problem is that the vast preponderance of the
case law and doctrine that has built up on top of the texts of individual rights
instruments was developed during times of normalcy. It is because the straightfor-
ward application of substantive rules derived from this judicial gloss of the text
would frequently lead to results widely seen as unreasonable or impracticable in an
extraterritorial context that extraterritorial application itself becomes vulnerable to
what Martti Koskenniemi would term the critique of utopia.247
241
Al-Skeini CA, para. 124 (per Brooke, LJ).
242
Al-Skeini HL, para. 78 (per Lord Rodger).
243
See also Neuman, above note 237, at 391: ‘what a state owes should depend upon what it can
deliver’.
244
Similarly, see D. McGoldrick, ‘Extraterritorial Application of the International Covenant on
Civil and Political Rights’, in Coomans and Kamminga 41, at 46.
245
See also R. Lawson, ‘Really out of Sight? Issues of Jurisdiction and Control in Situations of Armed
Conflict under the ECHR’, in A. Buyse (ed.), Margins of Conflict: The ECHR and Transitions to and from
Armed Conflict (Intersentia, 2010), 57.
246
See also Wilde, above note 195, at 93: ‘Beyond non-derogable rights, human rights norms are
conceived to mean different things in different contexts. Flexibility and contextualization are integral
components of the very meaning of the obligations themselves, via the operation of limitation clauses,
derogation provisions and, in the case of the ECHR, the “margin of appreciation” doctrine applied by
the Strasbourg court.’
247
Koskenniemi, above note 2, esp. at 58 et seq.
This is undoubtedly a real and difficult issue. One could of course say (and I will
do so) that judge-made rules developed during normalcy can be further developed
or modified to take into account the abnormal circumstances that usually arise in
extraterritorial application, but this is easier said than done. It is naturally difficult
for judges to overturn or radically modify precedent or a constant jurisprudence
that has most often accumulated quite slowly through a process of accretion, and
has now become entrenched.
That adapting human rights norms to extraordinary circumstances is easier said
than done is undeniable. But, I submit, it can be worth it, and a principled
approach to extraterritorial application will never be possible without it. Several
tools can assist courts in that regard:
(1) Balancing is by far the most important. Thankfully, with a very few excep-
tions, human rights treaties and their judge-made gloss are replete with
balancing or proportionality tests. There is little preventing courts from
tweaking these tests a bit to accommodate extraterritorial application. At a
more general level, one can always see the current content of human rights
law as a larger balance between individual and community or state interest.
In an extraterritorial context, the scales would weigh somewhat more heavily
in favour of state interest than they would otherwise. Balancing is of
particular importance when it comes to positive obligations under human
rights law, specifically the overarching positive obligation to secure or ensure
human rights even against third parties. As we have seen above, though this
obligation can certainly at first glance appear onerous during armed conflict
or occupation, it does not require states to do the impossible, but only that
which they are reasonably able to.
(2) Taking into account other applicable legal regimes, such as international
humanitarian law (IHL), while interpreting human rights law can be a
valuable tool for assuring flexibility. Not only is this warranted by Article
31(3)(c) VCLT and the principle of systemic integration, it is only sensible
to refer to rules that were designed to regulate the specific situation. This,
however, is not a magic bullet, since it is entirely possible that norms from
different regimes are actually conflicting.248 I will be examining the relation-
ship between human rights and IHL in particular in Chapter V of this study.
(3) Derogations are a crucial adaptive mechanism foreseen by the human rights
treaties themselves. Their use in an extraterritorial context would provide
much clarity. However, by derogating from some of their obligations states
would explicitly say what they would be doing—for example, engaging in
preventive detention—and would thereby not only concede that human
rights treaties do apply extraterritorially, but would perhaps also incur a
significant political cost domestically. This is precisely why states have so far
not derogated when it comes to extraterritorial situations, choosing instead
248
See further M. Milanovic, ‘A Norm Conflict Perspective on the Relationship between Interna-
tional Humanitarian Law and Human Rights Law’, (2009) 14 JCSL 459.
to deny that the treaties apply extraterritorially altogether. Yet this ultimately
runs against long-term state interest, as the consequent loss in flexibility
impairs their chances on the merits if extraterritorial application is in fact
established, as has now been the case, for example, with regard to the UK’s
actions in Iraq. Derogations would in the longer run benefit both states and
courts, and would be of great use in avoiding possible norm conflicts, but
states still need the inducement to use them that further litigation will
probably provide.249
(4) Finally, as a matter of litigation strategy, counsel arguing on behalf of
plaintiffs relying on extraterritorial application should also prepared to be
flexible. If the opportunity arises to address the merits of a given case, a
maximalist argument could simply prove to be counterproductive. Rather
than leading the court to find a reasonable substantive middle-ground, it
could be an incentive for the court to declare that the human rights
instrument does not apply extraterritorially, and thereby avoid the expected
difficulties on the merits.
C. Effectiveness: impact
Flexibility is undoubtedly crucial. But if the substantive rules being applied extra-
territorially must not be overly rigid, they also must not be thinned out so much
that there is no useful purpose in the exercise. The only reason why we wish to
apply human rights treaties to extraterritorial situations is to change things, to
contribute something new to previously un- or under-regulated events. In other
words, the extraterritorial application of human rights treaties must have a real-
world impact. Otherwise it would not only be completely useless—it would be
worse than useless. It would degenerate into nothing more than apology, a
legitimization of extraterritorial state acts against individuals, such as the use of
force, as not only lawful but lawful in a nice, human rights-friendly sort of way.
Though balancing, for example, is indispensable in providing flexibility when
applying human rights norms in an abnormal context, whether when applying a
specific rule to a particular set of facts or when searching for a broader balance
between individual and state interest, it must not go too far. As well explained by
Gerald Neuman:
This emphasis on the countervailing necessities of overseas action may suggest that all of
these models can be collapsed into a brand of harmless universalism: recognize constitu-
tional rights as potentially applicable worldwide, and then balance them away. One might
engage in ad hoc balancing in the individual case, or balance more categorically; the
249
A preliminary question, of course, is whether extraterritorial derogations are even possible in
situations where the ‘life of the nation’ doing the derogating is not itself in danger (as, for instance, with
the UK in Iraq or Afghanistan). No definitive answer to this question has yet been given, though it
has been raised by Lord Bingham in R. (Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58,
[2008] 1 AC 332. To my mind, that answer must be ‘yes’, but I will not explore that issue further in
this study.
balancing process may be intrusive or highly deferential. . . . This approach suggests that,
ultimately, extraterritorial constitutional rights boil down to a single right: the right to
‘global due process’.250
Neuman points out a real danger. What would be the use of an ICCPR or an
ECHR (or a constitution) that is widely applicable extraterritorially, if state action
is to be judged under a standard so flexible and lenient that the state could almost
never act unlawfully? It is better for universality to remain utopian, than for it to
become harmless.
Finding the right balance in balancing is by any account a delicate task, which
can only be performed on a case-by-case basis, if with an overarching need for
consistency. This does not mean simply that one form of casuistry on the prelimi-
nary question of extraterritorial application that I find so unappealing is to be
replaced with another, this time on the merits. As I see it, the real problem is not so
much casuistry but the lack of principle behind it. Even though I can and will offer
reasonably clear rules on when human rights treaties should apply extraterritorially
I am obviously incapable of saying how they should substantively apply in every
given factual scenario. In the abstract I can only say that although in large swathes
of extraterritorial cases the balancing exercise would come out so strongly in favour
of the state that it would amount to no more than what Neuman calls ‘global due
process’—say, for example, with extraterritorial searches or other interferences with
privacy, which would probably not amount to violations in all but the most
exceptional of circumstances—the extraterritorial application of the human rights
regime would still be worth having with regard to torture, fair trial, or arbitrary
deprivations of liberty or life.
D. Effectiveness: regime integrity

A human rights regime thus must not be watered down so much in an extraterritor-
ial setting as to be rendered toothless. Another danger in making the substantive
application of a human rights regime overly flexible in an extraterritorial context is
that the regime as a whole may become compromised. Recall, for example, the
European Court’s rejection in Bankovic of the idea that Convention rights can be
divided and tailored, and its ruling that the ECHR is an all or nothing package.251
Similar concerns may underlie the Court’s reluctance so far to explicitly take into
account IHL norms when applying the ECHR to situations of armed conflict. As
Michael O’Boyle put it, ‘[t]he rules of international humanitarian law sit uneasily
with the Court’s case law on the right to life.’252 Allowing the state to kill
combatants or insurgents under human rights law without showing the absolute
necessity for doing so, or to detain preventively during armed conflict, might lead
to allowing the state to do the same outside armed conflict, with one precedent
250 251
Neuman, above note 109, at 920. Bankovic, para. 75.
252
O’Boyle, above note 217, at 135.
leading to another, and then another, and yet another.253 The potential of emer-
gencies or states of exception to balloon out and become the norm rather than the
exception has of course long been recognized. This is, inter alia, why there are
derogation clauses in human rights treaties, and why they impose such strict
requirements on any derogation.
It is natural for courts to resist the importation of values and rules foreign to the
system in which they are normally operating. It is likewise understandable for them
to fear that by nominally expanding the regime’s coverage they would actually
be diminishing it in substance, as well as overstepping the bounds of their own
authority.254 And it is because these concerns are valid and real that they must
be addressed as openly as possible. With extraterritorial application as with many
other problems, the best might turn out to be the enemy of the good. A ‘perfect’,
oh-so-human-rights-friendly solution to the preliminary issue of extraterritorial
application—much like the one I will be offering later in this study—might
when applied in practice turn out to be positively harmful to the human rights
regime as whole, so that all the participants in that regime are ultimately worse
off than before.
E. Effectiveness: clarity and predictability

Finally, as Lord Justice Brooke aptly put it in Al-Skeini: ‘[i]t is essential . . . to set
rules which are readily intelligible.’255 Today, the rules regarding the extraterrito-
rial applicability of human rights instruments are everything but. Although clarity
does not necessarily require a jurisprudence of principle, it is greatly aided by
it. This study is largely devoted precisely to establishing such principles. However,
clarity regarding threshold rules will be difficult to achieve if the subsequent
application of the substantive rules remains utterly uncertain. If extraterritorial
application is to be effective, both the threshold and the substantive rules need
to be reasonably clear and workable. This is not to say that these rules neces-
sarily need to go along bright lines. But unless the parties offer the court
253
For such regime integrity-inspired concerns with regard to drone targeted killings, see the
Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, Philip Alston:
Study on targeted killings, Human Rights Council, UN Doc. A/HRC/14/24/Add.6, 28 May 2010,
esp. paras 85 and 86. For commentary on this report, see M. Milanovic, ‘More on Drones, Self-
Defense, and the Alston Report on Targeted Killings’, EJIL: Talk!, 5 June 2010, available at <http://
www.ejiltalk.org/more-on-drones-self-defense-and-the-alston-report-on-targeted-killings/>.
254
Thus, for example, in Reid v. Covert, at 14, while delivering the opinion of the Court, Justice
Black opined that
[t]he concept that the Bill of Rights and other constitutional protections against arbitrary
government are inoperative when they become inconvenient or when expediency dictates
otherwise is a very dangerous doctrine and, if allowed to flourish, would destroy the benefit
of a written Constitution and undermine the basis of our Government. If our foreign
commitments become of such nature that the Government can no longer satisfactorily
operate within the bounds laid down by the Constitution, that instrument can be amended
by the method which it prescribes. But we have no authority, or inclination, to read
exceptions into it which are not there.
255
Al-Skeini CA, para. 110.
viable standards, it is far easier for the court to deny extraterritorial applicability in
the first place.
F. Conclusion
The question of whether a human rights instrument applies in principle to a given
extraterritorial situation is conceptually distinct from how it should substantively
apply. In reality, however, considerations of effectiveness which pertain to the
merits influence how courts will approach the question of extraterritorial applica-
tion. In a way, disputes about extraterritorial application serve as a substitute for an
examination of the merits. It is largely because courts fear that if they so much as
touch the substance of very controversial and complex cases these will explode in
their faces that they choose to unduly restrict the extraterritorial application of
human rights instruments. Thus, the result of Bankovic is in my view explained not
by the European Court’s exegesis on the general international law doctrine of
jurisdiction, but by the Court’s belief that the killing of the individuals concerned
may well have been justified in terms of IHL, and that in any case it lacked both the
ability and a reliable factual record to apply IHL rules on targeting, distinction, or
precautions in attack. Did, for instance, the Serbian authorities use the RTS
equipment for military communications, as claimed by NATO, and how would
the Court establish that, or not? Likewise, the result in Al-Skeini, where persons
killed by UK troops on patrol were not within its jurisdiction, while a person killed
in detention was, is not explained merely by their Lordships application of incon-
sistent Strasbourg precedent, or by their apparent belief that prisons are like
embassies for Article 1 ECHR purposes. Rather, they thought that while a killing
by troops on patrol in a country embroiled in an insurgency may well be justified,
the killing of a helpless prisoner could not, and required judicial intervention. In
short, the treaty applied to Baha Mousa simply because it would have been morally
intolerable for it not to.
It is easier for courts to dismiss hard cases in limine, on preliminary issues, rather
than go into their merits. As time goes by, however, this jurisprudence becomes
more and more exposed as unprincipled and unworkable. The only way of
detaching the issue of extraterritorial applicability from an unstated assessment of
the merits is if the courts are made to believe that the government is not unfairly
and unreasonably constrained by rules that were not developed for these particular
kinds of circumstances, and that the courts themselves will not have to microman-
age controversies that go far beyond their competence. It is of course impossible to
produce a magic formula on how to construct a persuasive legal argument, except in
the broadest and accordingly least useful of generalities. Nonetheless, text and
precedent aside, extraterritorial application of human rights treaties will not rest
on any principle until courts are persuaded that: (1) such application could be
sufficiently flexible and will not produce unreasonable results; (2) that, at the same
time, it will not be so flexible as to no longer be meaningful; (3) that the added
flexibility will not compromise the integrity of the human rights regime as a whole;
and (4) that it is possible to have clear and workable rules on both threshold issues
and those of substance. Universality aside, it is only then that the courts will think
that the risks they assume by opening the regime further will be worth taking—and
it is only then that governments themselves might follow suit.
IV
Models of Extraterritorial Application
1. Basic Models and Scenarios
A. Introduction
Having examined the policy considerations which courts take into account when
deciding on the extraterritorial applicability of human rights instruments, whether
in an international or in a domestic context, I will now turn back to the human
rights treaties themselves. Recall that in Chapter II of this study, we examined the
concept of state jurisdiction in the treaties’ jurisdiction clauses, which ultimately
governs their territorial scope of application. As I have endeavoured to explain, that
concept of state jurisdiction refers to state control over territory, and perhaps also
individuals, not to the prescription or enforcement of municipal law, as the
European Court thought in Bankovic.
If the word ‘jurisdiction’ in Article 1 ECHR and similar jurisdiction clauses of
other human rights treaties basically means ‘effective overall control of an area’, as
the European Court held in Loizidou, then it of course still needs to be determined
what degree of control suffices, and how exactly to geographically or spatially define
an ‘area’.1 The rule about the territorial scope of application of human rights
treaties would then be relatively simple—they apply whenever a state has effective
overall control of an area, regardless of whether it has title over that area or not, and
of whether its control over the area was obtained lawfully or unlawfully. Conversely,
however, the treaties would not apply when such control is lacking. In my view,
contra Ilascu, this would hold even for territory over which the state actually does
have title. As I have argued above, there should be no difference in principle between
intra- and extraterritorial application of a human rights treaty, in the absence of the
requisite degree of state control.2
Yet, even if this territorial concept of jurisdiction was generally accepted, there
would still be numerous cases where a state acts extraterritorially and thereby
violates an individual’s rights, while not actually controlling the territory in which
it does so. The Bankovic scenario provides one example—aerial bombardment
1
See below Sections 2.B and 2.C.
2
See, however, K. Mujezinovic Larsen, ‘ “Territorial Non-Application” of the European Conven-
tion on Human Rights,’ (2009) 78 Nord J Int’l L 73, who argues in favour of a notion of ‘residual
jurisdiction’ flowing from title to territory, out of which only a limited set of positive obligations would
arise.
Models of Extraterritorial Application 119
without occupation—but as we shall see there are many others. If all ‘jurisdiction’
meant was control over territory, then persons in such scenarios would simply not
fall within it. Alternative strands of Strasbourg jurisprudence, the case law of other
human rights bodies, and several authors thus advocate another conception of state
jurisdiction, as authority and control over individuals. Such a personal, rather than
territorial notion of jurisdiction would greatly expand the scope of human rights
treaties. However, it remains to be seen whether it is tenable.
This chapter of the study will examine the possible models of extraterritorial
application, the two prime candidates being jurisdiction as control over terri-
tory3 and jurisdiction as control over individuals.4 In my view, neither of these is
entirely satisfactory. The former simply does not go far enough. If applied too
strictly, it is apologetic of state power, and allows many human rights abuses to
slip through the cracks. The latter runs against the language of some treaties,
which explicitly conceive of state jurisdiction in territorial terms. More impor-
tantly, it cannot be limited on any principled basis and loses any meaning as a
threshold, since it simply collapses into the position that a state has human rights
obligations whenever it can actually violate the rights of the individuals
concerned.
I therefore prefer a third model, where state jurisdiction is conceived of only
territorially, but where that threshold criterion applies only to the positive obliga-
tion of states to secure or ensure human rights, because it is only when states possess
a sufficient degree of control over territory that these obligations can be realistically
kept.5 When it comes to the negative obligation to respect human rights, no
threshold criterion should apply because states can always control the actions of
their organs or agents. In my view, this model fits best with the object and purpose
of human rights treaties and is superior in reconciling the various policy considera-
tions relevant to their extraterritorial application. It is, however, not free of all
weaknesses, and is lacking in explicit textual support at least with regard to some
treaties.
Besides these three basic models which concern treaties that possess dedicated
jurisdiction clauses, I will also be examining treaties without such clauses,6 as well as
the ICCPR, with its perhaps more restrictive territoriality requirement.7 Before
moving on to do so, however, I wish to outline several factual scenarios in which the
issue of extraterritorial application may present itself. Having criticized the juris-
prudence of the European Court for casuistry, I have no wish to engage in it myself.
Rather, my purpose in doing so is to be able to test the various models of
extraterritorial applications on the facts of these scenarios. This will simply allow
us to see more clearly what is at stake, as a matter of policy as much as a matter of
law, in opting for one model over another.
Most of the scenarios that I will now present are not actually hypothetical but
have already occurred in practice, whether they have been adjudicated on or not.
I will group them with regard to the nature of the state act which would arguably
3 4 5
See below, Section 2. See below, Section 3. See below, Section 4.
6 7
See below, Section 6. See below, Section 5.
amount to a human rights violation, for example deprivation of life or liberty.
Where the scenarios within each group differ from one another is in the various
contextual elements, for example in whether the killing by a state occurred in a
territory under the state’s control, and it is precisely these contextual elements
which matter the most for extraterritorial application. A caveat: there certainly is a
degree of overlap between some of these scenarios, and I am not saying that they are
all necessarily distinguishable. Nor am I saying that this list of scenarios is in any
way exhaustive.
B. Extraterritorial deprivation of life

1. Killing in a territory within the state’s control
There is no greater exercise of state power than a deprivation of life—and there is
no issue which attracts greater controversy. Legally, perhaps the easiest scenario is
when a state kills—or generally violates the rights of individuals—within a territory
under its effective overall control, for instance during a belligerent occupation. The
jurisprudence of human rights bodies, as well as the ICJ, is clear that in such
situations the human rights treaty would apply. How it would apply is a different
matter.8
As we have seen above, whether a particular treaty is regional or universal should
have no bearing on the application of the effective overall control of an area test.
Also irrelevant for the threshold issue of extraterritorial application is whether the
killing takes place during an armed conflict, whether within or outside a territory
under a state’s control. This of course may have an impact on the substantive
application of the treaty.
2. Killing in a territory outside the state’s control

More interesting is the issue of a killing by state agents in a territory not under the
state’s control. This killing can take place during a large-scale use of armed force, for
example in an aerial bombardment as in Bankovic, or on the battlefield, or for
instance during patrol by troops in an area over which their control is arguably
tenuous, as in Al-Skeini.
But again, the existence vel non of large-scale violence seems irrelevant for the
threshold question of extraterritorial application. Killing can also take place in more
limited, ‘targeted’ circumstances, as with the US use of drones in Pakistan to target
Taliban or Al-Qaeda elements.9 Then of course there is the classical assassination
8
For example, in situations of armed conflict the lawfulness of the killing could be assessed by
interpreting human rights law by taking into account the applicable rules of IHL—see Chapter V
below.
9
For general background, see, e.g., ‘Drones Are Weapons of Choice in Fighting Qaeda’, The New
York Times, 16 March 2009, available at <http://www.nytimes.com/2009/03/17/business/17uav.
html?_r=1>. For an insightful defence of the use of drones for targeted killings in US counter-
terrorism policy, see K. Anderson, ‘Predators Over Pakistan,’ The Weekly Standard, 8 March 2010,
available at <http://ssrn.com/abstract=1561229>.
scenario, as with the 2010 killing of a Hamas military leader in Dubai by suspected
agents of the Mossad.10 What all of these cases have in common is that they would
fall outside a human rights treaty’s scope of application under a strict effective
overall control of an area model of state jurisdiction.
3. Killing in a territory outside the state’s control, but within

the territory of a state party to the human rights treaty in question
(espace juridique)
But what if a Bankovic-type scenario were to occur in a territory of a state party to
the treaty, for example, when Russia bombed parts of Georgia in 2008? Similarly,
consider the assassination of Alexander Litvinenko in London, and assume that it
was done by Russian agents. Was Litvinenko within Russia’s jurisdiction? Did
Russia have an ECHR obligation not to kill him, or the obligation to investigate his
death?
Litvinenko’s family has lodged an application with the European Court, so we
will eventually see what the Court will say. To my mind, the only thing distin-
guishing the Litvinenko-type scenario from Bankovic is that the killing took place
within the ECHR’s espace juridique. It is irrelevant that the killing was done by
radioactive sushi, rather than by a missile from a drone or a bomb from an airplane.
However, while I am sure that Litvinenko’s family’s counsel will precisely try to
distinguish Bankovic on espace juridique grounds, as we have seen that notion
should also be irrelevant for the question of extraterritorial application. In other
words, if Bankovic governs state action outside Europe, then it should also govern it
inside Europe.
4. Killing by third parties

Finally, so far we have only examined killing by state organs or agents, which
engages the state’s negative obligation to respect human rights. However, killings by
third parties can engage the state’s positive obligation to do all it reasonably can to
prevent such killings, and the obligation to investigate them. A good example
would be insurgent violence in occupied Iraq. The issue, of course, is when such
positive obligations arise. One could also envisage various complicity scenarios,
dealing with the state’s responsibility connected to acts by third parties. Would, for
example, states selling weapons to Sudan that they know or have reason to suspect
Sudan will use against civilians in Darfur have duties under human rights treaties
towards the inhabitants of Darfur?11
10
See, e.g., ‘Dubai Points Finger at Mossad over Hamas Assassination,’ The Sunday Times,
18 February 2010, available at <http://www.timesonline.co.uk/tol/news/world/middle_east/arti-
cle7031749.ece>; ‘Dubai Hamas Assassination: How It Was Planned’, The Telegraph, 17 February
2010, available at <http://www.telegraph.co.uk/news/worldnews/middleeast/dubai/7251960/Dubai-
Hamas-assassination-how-it-was-planned.html>.
11
See, e.g., ‘China Defends Arms Sales to Sudan,’ BBC News, 22 February 2008, available at
<http://news.bbc.co.uk/2/hi/asia-pacific/7258059.stm>.
C. Extraterritorial deprivation of liberty
1. Detention in a territory within the state’s control
When it comes to the deprivation of liberty, as with deprivation of life, the easiest
scenario would be detention by state agents in a territory under the state’s effective
overall control. Perhaps the most common example would be the detention of
civilians or combatants during belligerent occupation. Of course, there are com-
plexities in defining what actually amounts to effective overall control over territory,
and even more interestingly what counts as a territory. This brings me to my next
example.
2. Detention in a place within the state’s control

One can easily imagine detention by a state which does not take place in a territory
under its control, but in something more approaching a place. Take as one example a
full-fledged military base, such as Guantanamo or Bagram. For my present purposes,
perhaps the most intriguing example is offered by the so-called ‘black sites’ that the
CIA operated in the war on terror, in order to render, detain, and interrogate high-
value detainees, until they were shut down by the Obama administration. Though
many specifics are still unknown, credible sources have asserted that the CIA
operated such sites in Lithuania, Poland, and Romania among others.12
This example brings the territorial conception of state jurisdiction as the Loizidou
‘effective overall control of an area’ to its breaking point. Does a former riding
school in the suburbs of Vilnius—one of such black sites—qualify as an ‘area’
under US jurisdiction, even though it is located in a territory under the control of
Lithuania? Forget enormous military bases such as Guantanamo—what about lone
buildings, or apartments or basements within such buildings? Do they fall within
the ‘jurisdiction’ of the detaining state?
Or consider various abduction scenarios, as for instance with the capture of Adolf
Eichmann by Israeli agents in Argentina in 1960. To briefly recount the facts, on
11 May 1960, as he was returning home from work, the disguised Eichmann was
intercepted by Israeli agents who knocked him unconscious, put him in a car, and
took him to a safe house in Buenos Aires. He was kept there until 21 May 1960
when he was smuggled out of Argentina on an El Al flight to Israel.13
12
See, e.g., ‘Lithuania Hosted Secret CIA Prisons,’ BBC News, 22 December 2009, available at
<http://news.bbc.co.uk/1/hi/8426028.stm>; ‘Secret Prisons: Obama’s Order to Close “Black Sites” ’,
The Guardian, 23 January 2009, available at <http://www.guardian.co.uk/world/2009/jan/23/secret-
prisons-closure-obama-cia>; ‘A Window Into C.I.A.’s Embrace of Secret Jails’, The New York Times,
12 August 2009, available at <http://www.nytimes.com/2009/08/13/world/13foggo.html?
pagewanted=1&_r=2&hp>. See also M. Danner, ‘US Torture: Voices from the Black Sites’, The
New York Review of Books, Vol. 56(6), 9 April 2009, available at <http://www.nybooks.com/articles/
22530> (giving details on a confidential ICRC report on prisoner abuse at such sites).
13
See further N. Bascomb, Hunting Eichmann: How a Band of Survivors and a Young Spy Agency
Chased Down the World’s Most Notorious Nazi (HMH, 2009).
Now, because the Israeli agents operated in Argentina without its knowledge or
consent, they violated Argentinean sovereignty.14 But that aspect of the legality, vel
non, of Eichmann’s capture is for our present purposes beside the point. The
question I am interested in, on the facts of this scenario, is at what point Eichmann
would have had enforceable human rights vis-à-vis Israel. Would it be at the
moment of capture, when he was as an individual within the Israeli agents’ control?
Or when he was brought to the safe house, arguably a place under Israel’s control,
and thus within its jurisdiction? Or was it when he was put on the El Al plane, or
rather when that plane entered Israeli airspace or touched down on the tarmac?
This brings me to my next example.
3. Detention on a ship or aircraft

What about persons detained aboard a ship or aircraft? Does it matter, for example,
that Eichmann was drugged, disguised as flight crew, and brought to Israel on an El
Al plane, which flies Israel’s flag, since general international law recognizes the flag
jurisdiction of states? Or would the result be any different if Eichmann was taken
on a British Airways plane? Is it, in other words, the flag that matters, or is it the
actual control over the individual by the state?
In more contemporary terms, the United States has held a number of prisoners
aboard ships in its ‘war on terror’.15 But where this particular issue is of the greatest
practical relevance is probably with respect to piracy off the coast of Somalia. When
do, for example, captured pirates enjoy the non-refoulement protections of the
ECHR or the ICCPR? And when do refugees or economic migrants aboard ships
trying to reach a better life on European or American shores?
4. Killing, torture, or ill-treatment during extraterritorial detention

I have so far talked about detention pure and simple. Yet, as we well know,
deprivation of liberty is frequently followed by various forms of violence to the
person. This, after all, was what the US programme of interrogation of high-value
detainees, such as Khalid Sheikh Mohammed, the mastermind of 9/11, was all
about. The political importance of such scenarios is not in doubt. However, the
threshold question of extraterritorial application probably does not and should not
depend on the particular act of violence concerned. What does is the fact that such
violence takes place in a situation where the individual is under state control, or is in
an area or place under state control. In that regard, the violence as such is
inseparable from the deprivation of liberty—but what if the torturer is an agent
of a different state than the one holding the detainee? And what of the situations
where one state is merely complicit in a human rights violation by another?
14
See UNSCR 138 (1960).
15
See, e.g., ‘US Accused of Holding Terror Suspects on Prison Ships’, The Guardian, 2 June 2008,
available at <http://www.guardian.co.uk/world/2008/jun/02/usa.humanrights>.
D. Complicity scenarios
1. Territorial complicity
There are two basic complicity scenarios, the first being when the territorial state
acquiesces or is complicit in an extraterritorial human rights violation by another
state. Thus, for example, if Lithuania allowed the United States to operate the CIA
black site near Vilnius, knowing that it would be used for the incommunicado
detention and coercive interrogation of suspected terrorists, it may be responsible
under the relevant human rights treaties, such as the ECHR, because the indivi-
duals concerned were within Lithuanian jurisdiction. The same might go, for
example, for states knowingly allowing rendition flights to overfly their territories,
or to use their airports for refuelling.
2. Extraterritorial complicity
But complicity itself can also be extraterritorial. Consider, for example, the actions
of various intelligence services in the ‘war on terror’, such as the involvement of
Canadian agents in the rendition to Syria of Maher Arar,16 or in the case of Omar
Khadr, or that of UK agents in the case of Binyam Mohamed, both of whom were
detained and interrogated by the US in Guantanamo, with the interrogations
being conducted with the connivance, presence, or participation of Canadian and
UK intelligence services.17 This was of course not an isolated practice—there have
been numerous allegations of UK complicity in torture in Pakistan, Egypt, and
Uzbekistan, in addition to Guantanamo.18
What distinguishes these cases from territorial complicity is that the individual
concerned is not located within a territory or even a place under the complicit
state’s control, but is rather under the control of the principal. The actions of the
principal state may themselves be committed extraterritorially, as with the US in
Guantanamo. The issue, of course, is whether complicity in such circumstances is
actually prohibited. Did, for example, Binyam Mohamed have ECHR rights vis-à-
vis the UK while he was being held and mistreated by the US in Guantanamo, with
UK collusion?
3. Distinguishing between primary and secondary rule complicity

In that regard, a distinction must be made between complicity based on primary
rules of international law, such as those in human rights treaties, and complicity
16
See, e.g., the 2006 Report of the Commission of Inquiry into the Actions of Canadian Officials
in Relation to Maher Arar, available at <http://www2.pch.gc.ca/cs-kc/arar/index_e.htm>.
17
See, e.g., ‘MI5 Telegrams “Fed Interrogation” ’, BBC News, 7 March 2009, available at <http://
news.bbc.co.uk/2/hi/uk_news/7930708.stm>.
18
See, e.g., Joint Committee on Human Rights, ‘Allegations of UK Complicity in Torture’,
21 July 2009, available at <http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/
152/152.pdf>; ‘Torture—new claim of secret UK complicity’, The Guardian, 26 July 2009, available
at <http://www.guardian.co.uk/world/2009/jul/26/alam-ghafoor-torture-uk-intelligence>.
based on the general, secondary rules of state responsibility. The content of the
latter has been codified by the ILC in Article 16 ASR:
A State which aids or assists another State in the commission of an internationally wrongful
act by the latter is internationally responsible for doing so if:
(a) that State does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) the act would be internationally wrongful if committed by that State.
Note that Article 16 requires that both the principal state and the complicit state be
bound by the same legal obligation. As the ILC puts it:
The third condition limits article 16 to aid or assistance in the breach of obligations by
which the aiding or assisting State is itself bound. An aiding or assisting State may not
deliberately procure the breach by another State of an obligation by which both States are
bound; a State cannot do by another what it cannot do by itself. On the other hand, a State
is not bound by obligations of another State vis-à-vis third States. This basic principle is also
embodied in articles 34 and 35 of the Vienna Convention on the Law of Treaties.
Correspondingly, a State is free to act for itself in a way which is inconsistent with
obligations of another State vis-à-vis third States. Any question of responsibility in such
cases will be a matter for the State to whom assistance is provided vis-à-vis the injured State.
Thus it is a necessary requirement for the responsibility of an assisting State that the conduct
in question, if attributable to the assisting State, would have constituted a breach of its own
international obligations.19
This creates a two-fold problem. Let us take the ill-treatment of Binyam Mohamed
in Guantanamo, in which the UK was allegedly complicit, as an example. Assume
that Binyam Mohamed lodges an application against the UK with the European
Court, alleging that the UK’s complicity was a violation of Article 3 ECHR. The
first problem is that, unlike say with the CAT, the US and the UK were not bound
by the same legal obligation, since the US is not a party to the ECHR.20 Secondly,
even if the first problem were to be resolved, it would be far from clear that the UK
was bound to respect or secure Mohamed’s rights as he was not located in a territory
under its jurisdiction. Therefore, even if the case was looked at under the CAT, the
two states might not have had the same obligations towards the same individual.
The requirement for parallel state obligations thus poses a great difficulty in
relying on Article 16 ASR to deal with complicity scenarios.21 Rather, recourse
must be had to complicity derived from primary rules, i.e. from the positive and
negative state obligations under the human rights treaties themselves. In other
words, it is only if Article 3 ECHR is interpreted as prohibiting state party
involvement in torture or ill-treatment by non-parties that complicity would in
19
ILC ASR Commentary, at 157, para. 6.
20
One could argue, however, that they were bound by the same obligation in substance, even
though it did not come from the same source.
21
For the relevance of this distinction between primary and secondary complicity in the Bosnian
Genocide case before the ICJ, see M. Milanovic, ‘State Responsibility for Genocide: A Follow-Up’,
(2007) 18 EJIL 669, at 680–4.
fact be unlawful. This, of course, still leaves the question of extraterritorial applica-
tion. If, per Bankovic, killing a person in a territory outside the state’s control would
not engage the ECHR, why would helping a third state torture a prisoner do so?
And even if the notion of state jurisdiction was not solely spatial, but was also
personal in nature, i.e. if the jurisdiction threshold would be satisfied if a state had
authority and control over an individual, would the mere provision of information
or questions to third-party torturers qualify as such control?
E. Extraterritorial law enforcement

This brings me to my next category of scenarios, which I will put under the general
rubric of extraterritorial law enforcement. We have already seen one example in
Hape and Verdugo-Urquidez—extraterritorial searches and seizures for the purposes
of criminal investigations.22 Such acts can be done under colour of law, for instance
under a warrant and/or with the consent of the authorities of the territorial state, but
they can also be done without such legal authority. Likewise, abductions, which we
have already examined, could also have a place in a criminal law context as the means
of obtaining custody over a fugitive, as was indeed the case with Eichmann.23 The
question is whether this law enforcement context is of any relevance.
Consider also two further examples which are far from infrequent in practice.
First, in absentia trials of persons who are not located in the territory of the
prosecuting state, either because extradition has been refused or because the fugitive
is simply very good at running. Would a person subjected to such a trial, as is
possible in most civil law systems, actually enjoy the right to a fair trial under
human rights instruments? After all, he is not within the jurisdiction, if jurisdiction
is conceived of territorially. Or, rather, is the fact that an in absentia trial is a legal
process dispositive for some sort of personal notion of jurisdiction?
Secondly, what about the seizure of domestic assets, such as bank accounts or
immovable property, of a person located outside the state’s territory, for instance
because of tax evasion, or because he is suspected of involvement in terrorism?
Would that person, even though he is outside the jurisdiction, be entitled to due
process, or the protection of his property rights, say under Article 1 of Protocol
No. 1 to the ECHR? Should the fact that the seizure is a legal process matter? What
if, say, the individual’s house was simply burnt down by state authorities as a
punitive measure, without any legal process? The intuition of most people would
probably be that human rights guarantees should apply in such circumstances. But
why? What (if anything) distinguishes these acts from, say, an extraterritorial search
or seizure, or even a killing à la Bankovic?
F. Transboundary environmental harm

Finally, let us consider a scenario of transboundary environmental harm. This is of
course something that international law has increasingly dealt with, but it has
22
See above, Chapter III, Sections 4 and 5.
23
Similarly, see United States v. Alvarez-Machain, 504 U.S. 655 (1992).
mostly done so either by considering such harm to violate the sovereignty of the
state on which it encroaches, a general principle such as sic utere tuo ut alienum non
laedas, or specific instruments of international environmental law.24 But what
about the individuals affected by such harm?
Currently pending before the ICJ is the Aerial Herbicide Spraying case between
Ecuador and Colombia. Ecuador alleges that Colombia has sprayed toxic herbicides
within its borders, but near Ecuador, in its campaign to suppress coca cultivation,
and that these toxins have caused significant transboundary harm in Ecuador itself.
According to Ecuador’s application, this harm has not been confined to the
environment in the abstract:
During and after each of Colombia’s spraying campaigns, for instance, Ecuador’s population
in the northern boundary areas has reported serious adverse health reactions including
burning, itching eyes, skin sores, intestinal bleeding and even death. Because of the non-
discriminating nature of the herbicide used by Colombian authorities, there has also been
serious and widespread damage to non-target plant species, including key local crops such as
yucca, plantains, rice, coffee, hay and others. The consequences of the crop damage have
been serious in the context of the subsistence farming needs of the local population.25
Assuming that the facts as alleged are true, would the Ecuadorians affected by the
Colombian campaign have rights such as the right to life, bodily integrity, health, or
food vis-à-vis Colombia under, say, the ICCPR, the ICESCR, or the ACHR?26
2. The Spatial Model: Jurisdiction as Control of an Area
A. Introduction
Having now examined some of many possible scenarios of extraterritorial applica-
tion, let us move to the first possible model of such application, that would conceive
of state jurisdiction in spatial terms, as effective overall control of an area. This is
undoubtedly the model with the most textual support, and as we have seen in
Chapter II, such a model also fits with the general treaty practice of states, which
use the term ‘jurisdiction’ to denote control over territory. Likewise, several human
rights treaties, such as the CAT, explicitly refer to jurisdiction in spatial terms—e.g.
‘[e]ach State Party shall take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its jurisdiction’, in Article
2(1) thereof.
This model also fits best with the current state of jurisprudence. The golden
standard was of course set in Loizidou:
24
See, e.g., Trail Smelter (United States v. Canada) (1941) 3 RIAA 1905.
25
Aerial Herbicide Spraying (Ecuador v. Colombia), Application Instituting Proceedings, 31 March
2008, para. 4.
26
Ecuador at least says yes—see ibid., para. 38(B)(ii).
The spatial model of jurisdiction has likewise been adopted by other human rights
bodies,28 as well as by the ICJ in the Wall and Congo v. Uganda cases.29 Its primary
benefit, from a judicial perspective, is that it requires very little overruling of prior
case law. Even Bankovic can stand on that count, if we forget its misguided reliance
on the other ordinary meaning of the word ‘jurisdiction’ in international law, that
which delimits the municipal legal orders of states. Likewise, the spatial model
seems to reconcile the normative demands of universality and the factual demands
of effectiveness, as extraterritorial application would happen when it is realistically
possible, in the circumstances of state control over territory.30
The principal problem with the spatial model, however, is that on a deeper look
it does not reconcile universality and effectiveness all that well. Adhering to it
strictly would lead to numerous morally intolerable situations—intolerable from
the standpoint of universality—in which a state acts extraterritorially but the
relevant human rights treaty would not apply, as with most of the scenarios that
27
Loizidou v. Turkey, App. No. 15318/89, Judgment (preliminary objections) of 23 February
1995, para. 62 (citations omitted, emphasis added).
28
For example, the Human Rights Committee has found that the ICCPR was applicable to
Occupied Palestinian Territories—see Concluding Observations of the Human Rights Committee:
Israel, UN Doc. CCPR/C/79/Add.93, 18 August 1998, para. 10: ‘the Covenant must be held
applicable to the occupied territories and those areas . . . where Israel exercises effective control’, as
did the Committee on Economic, Social, and Cultural Rights with regard to the ICESCR—see
Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, UN
Doc. E/C.12/1/Add.27, 4 December 1998, para. 8: ‘The Committee is of the view that the State’s
obligations under the Covenant, apply to all territories and populations under its effective control.’ The
Committee Against Torture did the same with regard to the CAT in Iraq and Afghanistan—see
Conclusions and Recommendations: United Kingdom of Great Britain and Northern Ireland, UN
Doc. CAT/C/CR/33/3, 10 December 2004, para 4(b): ‘The Committee expresses its concern at:
(b) the State Party’s limited acceptance of the applicability of the Convention to the actions of its forces
abroad, in particular its explanation “that those parts of the Convention which are applicable only in
respect of territory under the jurisdiction of a State party cannot be applicable in relation to actions of
the United Kingdom in Afghanistan and Iraq”; the Committee observes that the Convention protec-
tions extend to all territories under the jurisdiction of a State party and considers that this principle
includes all areas under the de facto effective control of the State party’s authorities.’ Similarly, the
Committee on the Rights of the Child considered that the CRC applied to the Occupied Palestinian
Territories, and also seemed to have though that it applied to Israeli army activities with regard to de-
mining in Southern Lebanon—see Concluding Observations of the Committee on the Rights of the
Child: Israel, UN Doc. CRC/C/15/Add.195, 4 October 2002, paras 2, 5, 57–8.
29
Opinion, 9 July 2004, ICJ Reports 2004, at 136, paras 109–13; Armed Activities on the Territory of the
Congo (Congo v. Uganda), Judgment, 19 December 2005, ICJ Reports 2005, at 168, paras 179,
216–17. The primary basis for extraterritorial application in both cases seems to have been the
occupied status of the territories in question—see especially Wall, para. 112: ‘the Court cannot accept
Israel’s view. It would also observe that the territories occupied by Israel have for over 37 years been
subject to its territorial jurisdiction as the occupying Power.’ However, the Court did not in any way
limit the possibility of extraterritorial application to the spatial model alone.
30
For the best general overview of the spatial model, see R. Wilde, ‘Triggering State Obligations
Extraterritorially: The Spatial Test in Certain Human Rights Treaties’, (2007) 40 Israel L Rev 503.
I have just outlined above. Even if it is better than just saying that human rights
treaties cannot apply extraterritorially at all, it is still simply far too rigid. As we will
see, this has invariably led either to the rejection of the spatial model in favour of
other approaches by the more adventurous human rights bodies, or to its attenua-
tion and the carving out of relatively unprincipled exceptions by the more faint of
heart.
I will now first examine the object of the spatial test—what actually counts as an
‘area’ susceptible to being subjected to a state’s jurisdiction. Secondly, I will address
the requirement of state control over an area. Thirdly, I will move on to control
over places and the special problems posed by embassies and consulates, as well as
by ships and aircraft. Finally, I will assess the viability of the spatial model more
generally, and by reference to the scenarios discussed above.
B. What is an ‘area’?
The Loizidou test of effective overall control of an area makes perfect sense on the
facts of Loizidou itself. After all, Turkey had occupied a third of the island of
Cyprus, and it is such large chunks of land that we generally consider to be ‘areas’ or
‘territories’. But problems arise as the area in question spatially diminishes. Is a city
an ‘area’ that can be subjected to state jurisdiction? How about a mere village? Or a
military base? Or a prison? Or just any building, or an apartment within that
building?
The more an area diminishes in size, the more artificial it becomes to our ears to
call it an area. Obviously, a mere square foot cannot qualify as an area for the
purpose of the Loizidou test. But why not? What exactly distinguishes a building, or
an apartment within that building, or a room within that apartment, from your
northern Cypruses or southern Iraqs? Why should size alone matter, and to what
extent should it matter?
The limits of the spatial conception of jurisdiction certainly do matter, as we
have seen above from the examples of CIA black sites and extraterritorial abduc-
tions. Indeed, the United States under the Bush administration denied the applica-
bility of human rights treaties such as the CAT to the black sites precisely on the
grounds that they were places located in a territory controlled by a third state. Recall
that it was the Bush administration’s general position that human rights treaties,
including the CAT, did not apply extraterritorially at all, thus rejecting even the
effective overall control of an area notion of jurisdiction.31 However, though it had
some support in the text and the travaux of the ICCPR, the language of the
jurisdiction clauses of the CAT was different. In 2005 the CIA asked the Office
of Legal Counsel (OLC), the division of the US Department of Justice which
provides authoritative legal advice for the executive branch of government, to advise
31
See, e.g., Memorandum for William J. Haynes, II, from Jay S. Bybee, re The President’s power as
Commander in Chief to transfer captured terrorists to the control and custody of foreign nationals, US
Department of Justice, Office of Legal Counsel, 13 March 2002, available at <http://www.justice.gov/
opa/documents/memorandumpresidentpower03132002.pdf>, at 22–5.
on whether the Article 16 CAT prohibition on cruel, inhuman, or degrading
treatment protected persons detained by the CIA in the so-called black sites.32
Under Article 16(1):
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of
cruel, inhuman or degrading treatment or punishment which do not amount to torture as
defined in article 1, when such acts are committed by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity. In
particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the
substitution for references to torture or references to other forms of cruel, inhuman or
degrading treatment or punishment. (emphasis added)
The ‘any territory under its jurisdiction’ clause clearly precludes an interpretation
that would confine its application only to a territory over which the state has title, as
the OLC realized:
By its terms, Article 16 is limited to conduct within “territory under [United States]
jurisdiction.” We conclude that territory under United States jurisdiction includes, at
most, areas over which the United States exercises at least de facto authority as the
government. Based on CIA assurances, we understand that the interrogations do not take
place in any such areas. We therefore conclude that Article 16 is inapplicable to the CIA's
interrogation practices and that those practices thus cannot violate Article 16.33
So, the OLC accepts that Article 16 is not confined merely to those territories over
which the state has title, but also to those over which the state has de facto authority.
However, says the OLC, the CIA has informed it that it is not conducting the
interrogations of high-value detainees in any such territory. Therefore, Article 16
CAT does not apply.34
Let me translate that for you: because we are holding these people in some
undisclosed secret prison—be it someplace in Afghanistan, Poland, Lithuania, or
wherever—in a place, but not in a territory over which we have effective overall
control, the treaty does not apply on its own terms. A prison is not a territory. Like
it or not, that’s not a bad textual argument, morally repugnant though it might be,
and it brings the spatial conception of state jurisdiction to a breaking point.
There are only two ways around this argument, neither of which is immediately
apparent as correct, at least on the text of the CAT. Either the spatial conception of
jurisdiction can extend to something as small as a place under state control, or the
negative obligation of state agents not to engage in ill-treatment does not depend on
32
Memorandum for John A. Rizo from Steven G. Bradbury, re Application of United States
Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be
Used in the Interrogation of High Value al Qaeda Detainees, US Department of Justice, Office of Legal
Counsel, 30 May 2005, available at <http://www.fas.org/irp/agency/doj/olc/article16.pdf>.
33
Ibid., at 1–2, developed in detail at 16 et seq.
34
Alternatively, if this argument fails, the OLC turns to the US reservation to Art. 16 CAT,
providing that cruel, inhuman, and degrading treatment within the meaning of the CAT will be
understood as cruel and unusual punishment as defined by the applicable provisions of the Bill of
Rights of the US Constitution. Since, in the OLC’s view, the US Constitution does not apply
extraterritorially to aliens, neither does the CAT.
a territorial jurisdiction threshold at all, even if the positive obligation to prevent ill-
treatment does. I personally do not find it easy to accept that a riding school in
Vilnius can be a territory under US jurisdiction, as Article 16 CAT requires, but
this is not impossible, considering in particular the nature of the acts that the CAT
prohibits, and that they invariably take place in a custodial setting.
Indeed, we should take note of Article 2 of the European Convention for the
Prevention of Torture, which seems to have been drafted precisely to take such
situations into account:
Each Party shall permit visits, in accordance with this Convention, to any place within its
jurisdiction where persons are deprived of their liberty by a public authority.
And also Article 4(1) of the Optional Protocol to the CAT, providing that
[e]ach State Party shall allow visits, in accordance with the present Protocol, by the
mechanisms referred to in articles 2 and 3 to any place under its jurisdiction and control
where persons are or may be deprived of their liberty, either by virtue of an order given by a
public authority or at its instigation or with its consent or acquiescence (hereinafter referred
to as places of detention). These visits shall be undertaken with a view to strengthening, if
necessary, the protection of these persons against torture and other cruel, inhuman or
degrading treatment or punishment. (emphasis added)
This now brings me to Al-Saadoon, a case that ran its course through English
courts35 and the European Court at a most hectic pace, that we have already
mentioned above in the context of norm conflict.36 The applicants in that case
were individuals detained by UK troops in Iraq. They were initially held as security
detainees on the basis of Resolution 1546. While they were detained on this basis,
per Al-Jedda, the Article 5 ECHR prohibition on preventive detention could be
deemed to have been overridden by virtue of Article 103 of the Charter.37 But then
the legal basis for the applicants’ detention changed. They were no longer held as
security detainees, but were charged with specific crimes by the Iraqi judiciary.38
Their detention by British forces continued, but now with the consent and at the
behest of the Iraqi government, in effect in a sort of pre-trial detention that is in
principle permitted by Article 5(1)(c) ECHR.
As the expiry of their UN mandate and the withdrawal of UK forces from Iraq
drew near, the Iraqi authorities requested the transfer of the applicants to Iraqi
custody. They challenged their impending transfer, first before the UK domestic
courts and then before the European Court, arguing, inter alia, that there was a
serious risk that they would be subjected to the death penalty by hanging if they
35
R. (Al-Saadoon and Mufdhi) v. Secretary of State for Defence [2009] EWCA Civ 7 (hereinafter Al-
Saadoon CA); R. (Al-Saadoon and Mufdhi) v. Secretary of State for Defence [2008] EWHC 3098
(hereinafter Al-Saadoon HC ).
36
See Chapter III, Section 9. See also Chapter V below for more discussion.
37
R. (Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332; see further
M. Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?’, (2009) 20 Duke J.
Comp. & Int’l L. 69.
38
Al-Saadoon HC, paras 24–31.
were transferred to Iraqi custody, and that this triggered the UK’s non-refoulement
obligations under the ECHR.
To make this argument, the applicants of course first had to establish that the
ECHR applied to them extraterritorially. In Al-Skeini39 the UK government had
conceded that the ECHR applies to persons detained by UK forces in Iraq.40 It thus
had to come up with something new to deny the extraterritorial applicability of the
ECHR in Al-Saadoon, and that it did. It argued that the applicants were held by UK
forces at the order of an Iraqi court, and that the UK had a legal obligation to abide
by the ruling of that court and transfer them to Iraqi authorities since UK forces
were present in Iraq with Iraq’s consent. Because it had no independent legal
authority to detain the Al-Saadoon applicants, so argued the government, they were
not within the UK’s jurisdiction within the meaning of Article 1 ECHR.
In its decision, the Divisional Court did not accept this argument, ruling that the
applicants were indeed within the UK’s jurisdiction.41 It held, however, that the
ECHR non-refoulement principle had to be qualified because the UK had a legal
obligation to transfer the applicants to Iraq, pursuant to a Court of Appeal ruling42
that the Divisional Court thought was wrongly decided, but had to follow any-
way.43 On appeal, the Court of Appeal agreed entirely with the government’s
argument, finding that the ECHR did not apply because the UK had no independent
legal authority to detain the applicants.44 The applicants promptly moved to the
European Court, and obtained a provisional measures order prohibiting their transfer
to Iraqi authorities. And, for the first time in many years, the UK government decided
to disobey such an order by the European Court, and transferred the applicants to
Iraqi custody.45
Al-Saadoon presents one of the best examples of unresolvable norm conflict,
specifically between the UK’s obligations towards Iraq on one side, and its obliga-
tions under the ECHR on the other. I will now however deal only with the issue of
extraterritorial applicability, which the Court of Appeal denied so that it could
avoid the norm conflict. Note the UK government’s argument, which the Court of
Appeal accepted, that Article 1 ECHR jurisdiction requires the exercise of a legal
authority, something that the UK in Iraq supposedly lacked. As we have seen in
Chapter II above, this argument results from the confusion, particularly in Banko-
vic, between the various concepts of state jurisdiction in international law: the one
39
R. (Al-Skeini and Others) v. Secretary of State for Defence [2007] UKHL 26, [2007] 3 WLR 33,
[2007] 3 All ER 685 (hereinafter Al-Skeini HL); R. (Al-Skeini and Others) v. Secretary of State for Defence
[2005] EWCA Civ 1609, [2007] QB 140 (hereinafter Al-Skeini CA).
40
For commentary on the UK courts’ reasoning regarding the extraterritorial applicability issues in
Al-Skeini, see R. Wilde’s note in (2008) 102 AJIL 628, as well as T. Thienel, ‘The ECHR in Iraq:
The Judgment of the House of Lords in R. (Al-Skeini) v Secretary of State for Defence’ (2008) 6 JICJ 115.
41
Al-Saadoon HC, para. 82.
42
R. (B) v. Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344, [2005]
QB 643; see further Chapter V below.
43
Al-Saadoon HC, paras 89–96.
44
Al-Saadoon CA, paras 32–40.
45
See T. Thienel, ‘Cooperation in Iraq and the ECHR: An Awful Epilogue’, Invisible College,
21 January 2009, available at <http://invisiblecollege.weblog.leidenuniv.nl/2009/01/21/cooperation-
in-iraq-and-the-echr-an-awfu>.
that we are dealing with here most certainly does not require the exercise of a legal
authority over a territory or an area. This Bankovic-induced confusion was to an
extent also reflected in the admissibility decision in Al-Saadoon by a Chamber of the
European Court,46 which ultimately quite rightly rejected the UK’s argument
against extraterritorial application:
During the first months of the applicants’ detention, the United Kingdom was an occupying
power in Iraq. The two British-run detention facilities in which the applicants were held
were established on Iraqi territory through the exercise of military force. The United
Kingdom exercised control and authority over the individuals detained in them initially
solely as a result of the use or threat of military force. Subsequently, the United Kingdom’s
de facto control over these premises was reflected in law. In particular, on 24 June 2004,
CPA Order No. 17 (Revised) (see paragraph 13 above) provided that all premises currently
used by the MNF should be inviolable and subject to the exclusive control and authority
of the MNF. This provision remained in force until midnight on 31 December 2008
(see paragraphs 20–21 above).
The Court considers that, given the total and exclusive de facto, and subsequently also de
jure, control exercised by the United Kingdom authorities over the premises in question, the
individuals detained there, including the applicants, were within the United Kingdom’s
jurisdiction (see Hess v. the United Kingdom, no. 6231/73, Commission decision of 28 May
1975, Decisions & Reports vol. 2, p. 72). This conclusion is, moreover, consistent with the
dicta of the House of Lords in Al-Skeini and the position adopted by the Government in
that case before the Court of Appeal and House of Lords (see paragraph 62 above).
In the Court’s view, the applicants remained within the United Kingdom’s jurisdiction
until their physical transfer to the custody of the Iraqi authorities on 31 December 2008.
The questions whether the United Kingdom was under a legal obligation to transfer the
applicants to Iraqi custody and whether, if there was such an obligation, it modified or
displaced any obligation owed to the applicants under the Convention, are not material to
the preliminary issue of jurisdiction (see, mutatis mutandis, Bosphorus, cited above, } 138)
and must instead be considered in relation to the merits of the applicants’ complaints.47
Note the several moves that the Court makes. First, though it refers, if not in so
many words, to the general theory of Article 1 jurisdiction offered by the applicants
as de facto authority and control over individuals, it does not explicitly accept it.
Secondly, what it does in the second paragraph quoted above is to posit jurisdiction
as control not over a territory or a wider geographical area, but control over places or
premises, here the detention facility in which the applicants were kept. This is of
course exactly the issue raised before with regard to the CIA black sites. Thirdly,
like the High Court, the Chamber expressly disagrees with the Court of Appeal’s
position that Article 1 jurisdiction requires an exercise of legal authority, and finds
that the question of what impact the UK’s legal obligation to surrender the
applicants to Iraqi authorities had on its ECHR obligations, if any, belongs to
the merits.48
46
Al-Saadoon and Mufdhi v. United Kingdom (dec.), App. No. 61498/08, 3 July 2009, paras 84–5.
47
48
Note also that the Court in Al-Saadoon relies on the former European Commission’s decision in
Hess v. the United Kingdom (dec.), App. No. 6231/73, 2 DR 72, 28 May 1975, which at first glance
So, what are we to make of this? If we conceive of state jurisdiction in human
rights treaties in spatial terms, we can observe that space or area to which it refers on
a continuum from something that we would broadly call a ‘territory,’ such as
Northern Cyprus, to what we would generally call a ‘place,’ such as a UK-run
prison in Iraq or that riding school in Vilnius. The question is whether that
continuum extends even further, to even smaller areas or places. I, for one, cannot
discern a clear cut-off one way or the other. What is certainly true is that there is a
degree of artificiality to this approach, and that the artificiality increases as the size
of the area decreases. For example, I would personally find it artificial in the extreme
to argue that Israel had human rights obligations towards Eichmann because it
controlled the apartment in which Eichmann was held before he was transferred to
Israel, rather than Eichmann himself. In other words, the spatial concept of state
jurisdiction as control over an area tends to collapse into the personal model of
jurisdiction as control over individuals, or indeed into the absence of any threshold
at all.
How then can we define an ‘area’ in a principled way? The only possible
definition is in my view a functional one: only something over which state can
exercise a sufficient degree of control can count as an area. The obvious drawback of
concerned the lawfulness of the continued detention of the former Nazi leader Rudolf Hess in the
Spandau prison in UK-occupied Berlin, who was held after the Nuremberg trials under the joint
authority of the four occupying powers, of which only the Soviets continued to oppose Hess’s release.
However, it was Hess’s wife who actually lodged the application, complaining that her rights were
violated. The threshold question was therefore whether Mrs Hess was within UK jurisdiction, but the
Commission examined instead whether Hess himself fell within the scope of Article 1:
The Commission first observes that in the present case the exercise of authority by the
respondent Government takes place not in the territory of the United Kingdom but outside
its territory, in Berlin. . . . The Commission is of the opinion that there is in principle, from
a legal point of view, no reason why acts of the British authorities in Berlin should not entail
the liability of the United Kingdom under the Convention. The question therefore arises
whether the Commission, in the particular circumstances of this case, is competent to
receive an application against the United Kingdom in respect of the continued imprison-
ment of Rudolf Hess . . .
The Commission concludes that the responsibility for the prison at Spandau, and for the
continued imprisonment of Rudolf Hess, is exercised on a Four Power basis and that
the United Kingdom acts only as a partner in the joint responsibility which it shares with
the three other Powers. The Commission is of the opinion that the joint authority cannot
be divided into four separate jurisdictions and that therefore the United Kingdom’s
participation in the exercise of the joint authority and consequently in the administration
and supervision of Spandau Prison is not a matter ‘within the jurisdiction’ of the United
Kingdom, within the meaning of Art. 1 of the Convention.
Ibid., at 73–4.
This was undoubtedly a complex case. Even if we accept that the threshold issue was whether Mr Hess,
rather than Mrs Hess, was within UK jurisdiction, I can only note that several different concepts are
mixed up in the Commission’s approach, namely attribution and jurisdiction as the threshold
question; the content of the substantive obligation if the threshold is reached; and the responsibility
vel non of the UK in connection with the acts of other states. Then there is also the question of possible
norm conflict between the UK’s obligations to the other three occupying powers, and its obligations
under the ECHR. At any rate, in my view the Commission’s decision is as such not particularly
instructive.
this definition—if it can even be called a definition—is that we must establish what
this sufficient degree of control is. This is what I will proceed to do next.
C. What amounts to ‘control’?

1. Lawful or unlawful
We may remind ourselves once more of the European Court’s holding in Loizidou
that it is the fact of state control over territory which is the basis of state jurisdiction,
whether obtained lawfully or unlawfully. As I have explained in Chapter II, it might
at first glance seem a bit odd to say that a word as familiar as ‘jurisdiction’ actually
refers to a factual concept that does not require the exercise of legal competence. Yet
this is precisely how the word is used in the treaty practice of states, as a somewhat
overdone way of saying that a state has de facto authority or control over a given
piece of territory. It may or may not have the right to exercise such control, but it is
the fact of control that matters.
This result is of course not simply warranted by rules of treaty interpretation, but
by sound considerations of policy, since any other conception of jurisdiction would
allow ample room for abuse, as we have already seen in a number of cases. A state
can obtain control over the territory of another state in only two basic scenarios—
with or without the territorial state’s consent. In the former scenario, so long as the
consent of the territorial state remains valid, and so long as the acts of the foreign
state remain within the limits of that consent, the foreign state will have acted
lawfully. The consent may be expressed in a treaty, e.g. a lease, or a foreign
intervention may be invited somewhat less formally. All that matters, however, is
that the consent is given. In the latter scenario, the control over another state’s
territory may or may not be lawful. As it involves the use of force, the lawfulness of
obtaining such control is assessed on the basis of the relevant branch of interna-
tional law, the jus ad bellum. Yet, just as with the law of occupation and the jus in
bello, whose applicability is quite deliberately not dependent on the lawfulness vel
non of the use of force as a matter of the jus ad bellum,49 so should the applicability
of human rights treaties be independent of such lawfulness.50 Not only does this
avoid frequently quite controversial and under-determinate preliminary questions
regarding the use of force, but whether a state obtained control over a territory
lawfully or not its ability to affect and protect the human rights of its inhabitants is
the same.
However, we have also seen that post-Bankovic the Strasbourg jurisprudence has
become somewhat more ambiguous. Note that even in Al-Saadoon, the Chamber
considered that ‘given the total and exclusive de facto, and subsequently also de jure,
control exercised by the United Kingdom authorities over the premises in question,
49
For an excellent recent defence of the wall of separation between the jus in bello and the jus ad
bellum, see R. Sloane, ‘The Cost of Conflation: Preserving the Dualism of Jus Ad Bellum and Jus in
Bello in the Contemporary Law of War’, (2009) 34 Yale J. Int’l L. 47.
50
Similarly, see N. Lubell, Extraterritorial Use of Force Against Non-State Actors (Oxford University
Press, 2010), at 214–15.
the individuals detained there, including the applicants, were within the United
Kingdom’s jurisdiction’.51 It is the ‘subsequently also de jure’ part which is
troubling, because it is not apparent why it should matter at all. The Chamber
probably mentioned it to pre-empt any Bankovic-inspired assault on its decision.
This would not make such a limitation any less arbitrary, particularly when we keep
in mind that the jus referred to is nothing more than the law promulgated by the
occupying powers, which they could switch on or off at will.
In short, any attempt to demand that the state’s control over territory be lawful
or anything other than purely factual should be resisted.52 This, of course, still
leaves the question of what the quality of the control should be as a matter of fact,
to which I turn next.
2. Effective overall control over territory

In the preliminary objections stage of Loizidou, the European Court described
Turkey’s control over northern Cyprus only as ‘effective’. At the merits stage, the
Court added the word ‘overall’ to the test:
It is not necessary to determine whether, as the applicant and the Government of Cyprus
have suggested, Turkey actually exercises detailed control over the policies and actions of the
authorities of the ‘TRNC’. It is obvious from the large number of troops engaged in active
duties in northern Cyprus that her army exercises effective overall control over that part of
the island. Such control, according to the relevant test and in the circumstances of the case,
entails her responsibility for the policies and actions of the ‘TRNC’. Those affected by such
policies or actions therefore come within the ‘jurisdiction'—of Turkey for the purposes of
Article 1 of the Convention. Her obligation to secure to the applicant the rights and
freedoms set out in the Convention therefore extends to the northern part of Cyprus.53
The Court reiterated the ‘effective overall control’ formula in Cyprus v. Turkey 54
and subsequent cases. Readers will recall from my discussion of state responsibility
issues in Chapter II that the Court’s rulings in Loizidou and Cyprus v. Turkey can
reasonably be interpreted in two ways: either the Court thought that the acts of the
TRNC were attributable to Turkey, or it thought it unnecessary to deal with this
question, finding instead that Turkey had a positive obligation to secure the human
rights of the inhabits of northern Cyprus by virtue of its control over the territory.
As I explained above, I prefer the latter option, because it reconciles the European
Court with the ILC’s and the ICJ’s approach to state responsibility. Hence, while
this Article 1 ECHR ‘effective overall control’ test bears resemblance to the ICJ’s
effective control test in Nicaragua, the two are conceptually distinct—the former
51
Al-Saadoon (dec.), para. 88.
52
See also A. Zimmermann, ‘Extraterritorial Application of Human Rights Treaties—The Case of
Israel and the Palestinian Territories Revisited’, in I. Buffard, J. Crawford, A. Pellet, and S. Wittich (eds),
International Law Between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (Brill,
2008), 747, at 758.
53
Loizidou (merits), para. 56, internal citations omitted.
54
Cyprus v. Turkey, para. 77.
refers to state control over territory for the purpose of establishing whether the state
has jurisdiction over the territory, the latter to state control over actors and their
specific acts for the purpose of attributing these acts to the state. Of course, the
control by a state over territory must be exercised by its agents, i.e. persons whose
acts are attributable to it.55
In these terms, the ‘overall’ prong of the Loizidou test serves an important
purpose—applicants do not need to show that the state controlling a territory
‘exercise[d] detailed control over the policies and actions’ of the (possibly non-state)
actor whose conduct directly violated their rights. As the Court put it in Cyprus v.
Turkey, ‘[h]aving effective overall control over northern Cyprus, [Turkey’s] respon-
sibility cannot be confined to the acts of its own soldiers or officials in northern
Cyprus but must also be engaged by virtue of the acts of the local administration
which survives by virtue of Turkish military and other support.’56
But what exactly does it mean that the state’s control needs to be ‘effective’? In
the most general terms, the state needs to have enough power over the territory and
its inhabitants to broadly do as it pleases. That said, control over territory is a fluid
thing, and is not limitless even under the best of conditions. To move from the
abstract to the concrete we would need to examine specific cases, and we would
then see that the threshold of control required by courts has generally been high. In
the northern Cyprus cases, Turkey had thousands of troops on the ground, and the
TRNC administration was at least initially little more than its puppet. In the ICJ
Wall and Congo v. Uganda cases, the situation was again one of belligerent
occupation. And in Bankovic, of course, the Court affirmed that the threshold of
control should be strict, holding that air strikes alone were unable of satisfying it,
and that
its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is
exceptional: it has done so when the respondent State, through the effective control of the
relevant territory and its inhabitants abroad as a consequence of military occupation or
through the consent, invitation or acquiescence of the Government of that territory,
exercises all or some of the public powers normally to be exercised by that Government.57
The ‘public powers’ requirement in particular appears to set the bar very high, as it
seems to require the establishment of a structured (military) administration in the
territory.58 On the other hand, the Court backtracked from this stringent require-
ment of territorial control in Issa, a Chamber case, and in Ilascu, decided by a Grand
Chamber. Issa dealt with an incursion by Turkish troops into northern Iraq, and
the possible killing by these troops of certain Iraqi nationals. In one paragraph of
the judgment, the Chamber seemed to have allowed for conceiving jurisdiction in
personal terms, as authority and control over individuals,59 while it said the
55
See above, Chapter II, Section 3.
56
Cyprus v. Turkey, para. 77.
57
Bankovic and Others v. Belgium and Others [GC] (dec.), App. No. 52207/99, 12 December
2001, para. 71.
58
See Wilde, above note 30, at 516.
59
Issa v. Turkey, App. No. 31821/96, Judgment, 16 November 2004, para. 71.
following with regard to Turkey’s territorial jurisdiction over the area of northern
Iraq:
In this connection, the Court notes that it is undisputed between the parties that the
Turkish armed forces carried out military operations in northern Iraq over a six-week period
between 19 March and 16 April 1995 (see paragraphs 58 and 63 above). It transpires from
the parties’ submissions and the documentary evidence contained in the case-file that the
cross-border operation conducted at that time was extensive and was aimed at pursuing and
eliminating terrorists who were seeking shelter in northern Iraq (see paragraphs 36, 43, 45,
58 and 63).
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 for holding that, at the relevant time, the victims were within that
specific area, it would follow logically that they were within the jurisdiction of Turkey (and
not that of Iraq, which is not a Contracting State and clearly does not fall within the legal
space (espace juridique) of the Contracting States (see the above-cited Banković decision,
} 80).
However, notwithstanding the large number of troops involved in the aforementioned
military operations, it does not appear that Turkey exercised effective overall control of the
entire area of northern Iraq. This situation is therefore in contrast to the one which obtained
in northern Cyprus in the Loizidou v. Turkey and Cyprus v. Turkey cases (both cited above).
In the latter cases, the Court found that the respondent Government's armed forces totalled
more than 30,000 personnel (which is, admittedly, no less than the number alleged by the
applicants in the instant case—see } 63 above—but with the difference that the troops in
northern Cyprus were present over a very much longer period of time) and were stationed
throughout the whole of the territory of northern Cyprus. Moreover, that area was
constantly patrolled and had check points on all main lines of communication between
the northern and southern parts of the island. The essential question to be examined in the
instant case is whether at the relevant time Turkish troops conducted operations in the area
where the killings took place.60
The Court then found that the evidence for such operations was lacking. However,
the Court allowed for the possibility that Turkey exercised its jurisdiction in Iraq:
(1) over a much more limited area than the whole of northern Iraq—indeed, the
immediate area of a village; (2) over a much shorter period of time—some six weeks
in all—than in the northern Cyprus cases; and (3) consequently with control with
significantly less permanence, stability or exercise of any ‘public powers’.
While Issa relaxes the Loizidou threshold somewhat, Ilascu perhaps goes so far as
to redefine it. In addition to the question of Russia’s control or jurisdiction over the
territory of Transdniestria in Moldova, that case was plagued with severe problems
regarding the Convention’s temporal scope of application, and the Court’s meth-
odological approach is generally hard to decipher. Thus, with regard to the period
before the entry of the Convention into force with respect to Russia, the Court
considered that
60
. . . the Russian Federation’s responsibility is engaged in respect of the unlawful acts
committed by the Transdniestrian separatists, regard being had to the military and political
support it gave them to help them set up the separatist regime and the participation of its
military personnel in the fighting. In acting thus the authorities of the Russian Federation
contributed both militarily and politically to the creation of a separatist regime in the region
of Transdniestria, which is part of the territory of the Republic of Moldova.
The Court next notes that even after the ceasefire agreement of 21 July 1992 the Russian
Federation continued to provide military, political and economic support to the separatist
regime (see paragraphs 111 to 161 above), thus enabling it to survive by strengthening itself
and by acquiring a certain amount of autonomy vis-à-vis Moldova.61
It was at this time that the applicants in the case were arrested by Russian troops in
Transdniestria, who then transferred them to the Transdniestrian separatist autho-
rities.62 According to the Court,
. . . on account of the above events the applicants came within the jurisdiction of the Russian
Federation within the meaning of Article 1 of the Convention, although at the time when
they occurred the Convention was not in force with regard to the Russian Federation.
This is because the events which gave rise to the responsibility of the Russian Federation
must be considered to include not only the acts in which the agents of that State
participated, like the applicants’ arrest and detention, but also their transfer into the
hands of the Transdniestrian police and regime, and the subsequent ill-treatment inflicted
on them by those police, since in acting in that way the agents of the Russian Federation
were fully aware that they were handing them over to an illegal and unconstitutional regime.
In addition, regard being had to the acts the applicants were accused of, the agents of the
Russian Government knew, or at least should have known, the fate which awaited them.
In the Court’s opinion, all of the acts committed by Russian soldiers with regard to the
applicants, including their transfer into the charge of the separatist regime, in the context of
the Russian authorities’ collaboration with that illegal regime, are capable of engaging
responsibility for the acts of that regime.
It remains to be determined whether that responsibility remained engaged and whether
it was still engaged at the time of the ratification of the Convention by the Russian
Federation.63
The Court here says that Russia had jurisdiction over the territory of Transdniestria
even though the Convention was, for Russia, not yet in force. There is in principle
nothing wrong with that conclusion. But note the lack of clarity in the Court’s
formulation that the responsibility of Russia was ‘engaged’—does the Court here
think that the conduct of the Transdniestrian authorities was attributable to Russia,
and if so on what grounds? Note also that whatever Russia did at the time was not
wrongful under the ECHR, as the ECHR was not yet in force for Russia. The Court
then moved on to the period after Russia had ratified the ECHR on 5 May 1998:
The Russian army is still stationed in Moldovan territory in breach of the undertakings to
withdraw them completely given by the Russian Federation at the OSCE summits in
61
Ilascu and others v. Moldova and Russia [GC], App. No. 48787/99, Judgment, 8 July 2004,
para. 382.
62 63
Ibid., para. 383. Ibid., paras 384–5.
Istanbul (1999) and Porto (2001). Although the number of Russian troops stationed in
Transdniestria has in fact fallen significantly since 1992 (see paragraph 131 above), the
Court notes that the ROG’s weapons stocks are still there.
Consequently, in view of the weight of this arsenal (see paragraph 131 above), the ROG’s
military importance in the region and its dissuasive influence persist.
All of the above proves that the ‘MRT’, set up in 1991–1992 with the support of the
Russian Federation, vested with organs of power and its own administration, remains under
the effective authority, or at the very least under the decisive influence, of the Russian Federation,
and in any event that it survives by virtue of the military, economic, financial and political
support given to it by the Russian Federation.
That being so, the Court considers that there is a continuous and uninterrupted link of
responsibility on the part of the Russian Federation for the applicants’ fate, as the Russian
Federation’s policy of support for the regime and collaboration with it continued beyond
5 May 1998, and after that date the Russian Federation made no attempt to put an end to
the applicants’ situation brought about by its agents, and did not act to prevent the
violations allegedly committed after 5 May 1998.
Regard being had to the foregoing, it is of little consequence that since 5 May 1998 the
agents of the Russian Federation have not participated directly in the events complained of
in the present application.
In conclusion, the applicants therefore come within the “jurisdiction” of the Russian
Federation for the purposes of Article 1 of the Convention and its responsibility is engaged
with regard to the acts complained of.64
Put aside for one moment the lack of rigour in the Court’s approach to issues of
state responsibility, both with regard to attribution and with regard to the question
of continuous wrongful acts and the ECHR’s temporal application. If the Court’s
judgment is interpreted as holding that the actions of the MRT have at all times
been attributable to Russia, then it is clear that Russia still has jurisdiction and
control over the territory of Transdniestria. If, on the other hand, the acts of the
MRT are not generally attributable to Russia, but Russia is being held responsible
for its own failure to comply with its positive obligations, then the Court uses a
pretty lax standard to establish Russia’s jurisdiction over Transdniestria—all that
mattered was that Russia had ‘decisive influence’ over it. This is a far cry from
requiring the exercise of ‘public powers’ by Russia or a de facto government or
administration of the territory.
The Court justified its approach by referring to Russia’s involvement in the
creation of the MRT, the far more extensive military control that it had in the past,
and perhaps most importantly, the potential for such control that has remained.
This is of course a remarkably similar situation to northern Cyprus, where Turkey
has likewise gradually downgraded its military presence, while the local administra-
tion has become more independent. In other words, Russia could still be said to
exercise effective overall control over Transdniestria, because if it wanted to it could
easily make its power felt more overtly.65
64
Ibid., paras 387, 392–4, emphasis added.
65
Similarly, on the importance of potential for control, specifically in the Israeli/Palestinian
context, see O. Ben-Naftali and Y. Shany, ‘Living in Denial: The Application of Human Rights
Treaties in the Occupied Territories’, (2003) 37 Israel L Rev 17, at 63–4.
So what are we to make of the case law? First, the threshold of effective overall
control of a territory is set relatively high. As a general matter, it requires boots on
the ground. Secondly, though the threshold is set high, that level of control still
need not be as high as the one that the state has over its own territory in peacetime
or during normalcy. Thirdly, effective overall control is itself a spectrum, ranging
from the more entrenched and visible exercise of de facto government, administra-
tion, or public powers, to the more borderline cases of less permanent or overt state
control as in Issa and Ilascu.
More fundamentally, the case law aside, I think it is fair to say that the test of
effective overall control of an area is also a functional one. Its stringency in the
degree of effectiveness required depends foremost on the consequences that attach
to the fact of such effective control. Recall the European Court’s regime integrity
concern in Bankovic that the ECHR cannot be cut up into little pieces, some of
which would apply extraterritorially and some not, and that accordingly the ECHR
is an all or nothing package. If the obligation incumbent on states is to secure all
Convention rights in an area where they exercise effective overall over that area,
then the degree of control required must be such as to allow states to realistically
comply with this obligation.66
On the other hand, two considerations militate against having a threshold which
is overly strict. First, the state’s ability to comply with its negative obligation to
respect human rights does not depend on its control over territory. Rather, the state
by definition has control over its own agents. Secondly, even with respect to the
state’s positive obligation to secure human rights, that obligation is not as onerous
as is it sometimes made out to be. It is an obligation of due diligence, of the state
doing all that it could reasonably be expected to do to protect a territory’s
inhabitants even from third parties. Accepting, say, that the UK had jurisdiction
over the parts of southern Iraq that it had occupied post-2003 does not entail that
the UK had the obligation to turn Iraq into a simulacrum of idyllic English
countryside.67
This brings me to the next issue I will address, the relationship between the
effective overall control of an area threshold for establishing state jurisdiction and
the threshold of control required for belligerent occupation.
3. Relationship with the threshold of belligerent occupation

In a scenario where a state obtains control over the territory of another state with
that state’s consent, the resulting occupation is pacific in nature. When, however,
such control is obtained through the use of force (even if that use of force need not
necessarily be opposed), IHL and the law of belligerent occupation apply concur-
rently with human rights treaties.68 One issue that needs to be considered is
whether the state jurisdiction threshold for the application of human rights treaties
66
Similarly, see Ilascu, Dissenting Opinion of Judge Bratza.
67
See above, Chapter III, Section 10.B.
68
See further Chapter V below.
is the same as or different than the threshold required for the establishment of a
belligerent occupation.69
Like the concept of jurisdiction in human rights treaties, belligerent occupation
also depends on purely factual criteria. As provided in Article 42 of the Hague
Regulations: ‘Territory is considered occupied when it is actually placed under the
authority of the hostile army. The occupation extends only to the territory where
such authority has been established and can be exercised.’ This standard is generally
interpreted in the literature as being one of ‘effective control’.70
But is this the same degree of control that we have examined above with regard
to human rights treaties? Could there, in other words, be occupation without
jurisdiction, or jurisdiction without occupation?
For the latter possibility, we might take another look at Issa. Recall that the
Turkish military operation in northern Iraq lasted for a mere six weeks, and that the
control of portions of Iraq by Turkish troops was fluid and intermittent. Assuming
that Turkey had jurisdiction over parts of Iraq at the relevant time, was it also their
belligerent occupier? On that point, IHL has always made a distinction between
an invasion and an occupation.71 Occupation may follow an invasion, but it
requires that a territory is solidly or firmly seized and that its sovereign has actually
been displaced—a mere vacuum in authority does not suffice. Though the precise
line between the invasion and the occupation phase can be hard to draw, occupa-
tion requires a degree of stability.72 As to whether the facts of Issa disclose the
existence of a belligerent occupation, it is at best a borderline case.
Or take another example, that of Gaza after Israel’s 2005 unilateral disengage-
ment. Even though Israel no longer has troops on the ground in Gaza (at least not
on a regular basis), nor exercises a military administration there, it has been argued,
particularly by the human rights community broadly conceived, that Gaza still
remains occupied by Israel.73 Most of the arguments in favour of this position are
to my mind unpersuasive. For example, control of the border crossings into a
territory is not the occupation of that territory, but a siege. Nor is control over the
sea and the airspace tantamount to the actual control of the territory itself. There
has not been a single instance of belligerent occupation that I am aware of where a
state was considered to have been the occupant of a territory without having troops
on the ground. Likewise, that Israel remains the occupying power in the West Bank
does not mean that it could not have terminated its occupation over Gaza, or that it
could not have done so unilaterally.74
To my mind, the only good argument that Gaza remains occupied is that Israel
still possesses an active potential for regaining effective control—cf. our discussion
69
See also Wilde, above note 30.
70
See, e.g., Y. Dinstein, The International Law of Belligerent Occupation (Cambridge University
Press, 2009), at 40, 42 et seq.
71
Ibid., at 38 et seq.
72
Ibid.
73
See, e.g., ibid., at 177–8, 277–9.
74
See further M. Milanovic, ‘Is Gaza Still Occupied by Israel?,’ EJIL: Talk!, 1 March 2009,
available at <http://www.ejiltalk.org/is-gaza-still-occupied-by-israel/>.
of Ilascu above. Occupation does not necessarily mean the control of all of the
territory, all of the time, at the same level of intensity. Many occupations are met
with significant and active resistance. Consider, for example, the US and UK-led
occupation of Iraq. The strength of the insurgency there was such that at any given
time these states lacked control over, say, some parts of the Sunni Triangle or some
parts of Basra. That does not mean that their occupation of those parts of Iraq
ceased, because the occupants were able to re-establish their control at will, as they
did. The lapse in control was merely temporary, due to the fact that the level of
resistance was such that the occupants could not control all of Iraq, all of the time.
Another well-known example is the German occupation of Yugoslavia during the
Second World War. The partisans fighting against the Nazis were from time to
time able to temporarily liberate a bit of territory here or there, but that did not
mean that Germany’s occupation ceased. This was so because, as the military
tribunal at Nuremberg ruled in United States v. List, ‘the Germans could at any
time they desired assume physical control of any part’ of Yugoslavia.75 The ICTY in
Naletilic likewise ruled that an occupation exists so long as the occupying army has
the ‘capacity to send troops within a reasonable time to make the authority of the
occupying power felt’.76
In any event, it may be arguable that Gaza remains occupied by Israel, but it is far
from clear that this is the case, and it is certainly not so clear for this claim to be
made in such forceful terms as it is by some in the human rights community.77
Why is this argument then made so emphatically? The answer to that question is
simple. Under IHL, a belligerent occupant has positive obligations to ensure the
well-being of the civilian population, including the provision of food and other
supplies. In a state of siege without occupation, however, the party to the conflict
only has negative obligations not to interfere with relief consignments and so forth,
and even these can be subject to military necessity. It does not have to provide food
and supplies to the civilian population of its adversary.78 Indeed, to impose such a
requirement would be manifestly absurd. The problem is of course precisely that
the civilian population of Gaza is heavily dependent on Israel and needs Israel not
just to let humanitarian aid through, but also to provide electricity and other
supplies of its own. This is why the gentler souls among us need to argue that
Israel is the belligerent occupier of Gaza. It is the only legally certain way of
assigning some positive obligations on Israel to provide for the civilians of
Gaza—something that I agree with entirely as a matter of policy. But the certainty
is unfortunately only deceptive.
75
United States of America v. Wilhelm List et al., 8 Law Reports of Trials of Major War Criminals
38, 55–6.
76
Prosecutor v. Naletilic, IT-98-34-T, Trial Chamber Judgment, 31 March 2003, para. 217.
77
See, e.g., Report of the United Nations Fact Finding Mission on the Gaza Conflict (Goldstone
Report), A/HRC/12/48, 15 September 2009, paras 274–80, esp. para. 276: ‘Israel has without doubt at
all times relevant to the mandate of the Mission exercised effective control over the Gaza Strip. The
Mission is of the view that the circumstances of this control establish that the Gaza Strip remains
occupied by Israel’ (emphasis added).
78
Cf. Arts 69 and 70 of Additional Protocol I.
So what are we to do then, if Israel is no longer the occupying power in Gaza, as
has in fact been held by the Israeli Supreme Court?79 One way of dealing with the
issue would be to say that the state of dependency of Gaza on Israel created by
Israel’s occupation is a consequence of Israel’s wrongful failure to abide by its duties
as an occupying power, and that it has the obligation to provide full reparation for
this failure. Likewise, Yuval Shany has made the intriguing argument that Israel
might not have effective control over Gaza for the purposes of the law of occupation
and thus has no positive obligations under IHL, but that it might have jurisdiction
over Gaza under the relevant human rights treaties, such as the ICCPR, and would
hence have positive obligations towards Gaza’s inhabitants.80 In other words, there
could be jurisdiction without occupation, just as in Ilascu Russia had jurisdiction
simply because it had ‘decisive influence’ over Transdniestria.
Consider, on the other hand, the possibility of a converse scenario of occupation
without jurisdiction. Let us take a look, for example, at the insurgency in Iraq that
followed the 2003 invasion, whose strength and magnitude was such that the
coalition forces could not maintain total control over all of Iraq, all of the time.
As we have seen above, this does not necessarily mean that the US and the UK
ceased to be the occupying powers in Iraq, even if only temporarily, since they
could always make their power felt. But does this mean that they had a sufficient
degree of control to satisfy the jurisdiction threshold of human rights treaties?
In Al-Skeini both the Court of Appeal and the House of Lords thought that the
UK lacked effective overall control over Basra for the purpose of establishing
jurisdiction even though it was the occupying power in that part of Iraq.81 In the
Court of Appeal Lord Justice Brooke (joined by Lord Justice Richards) thought
that it was
. . . quite impossible to hold that the UK, although an occupying power for the purposes of
the Hague Regulations and Geneva IV, was in effective control of Basrah City for the
purposes of ECHR jurisprudence at the material time. If it had been, it would have been
obliged, pursuant to the Bankovic judgment, to secure to everyone in Basrah City the rights
and freedoms guaranteed by the ECHR. One only has to state that proposition to see how
utterly unreal it is. The UK possessed no executive, legislative or judicial authority in Basrah
City, other than the limited authority given to its military forces, and as an occupying power
it was bound to respect the laws in force in Iraq unless absolutely prevented. It could not be
equated with a civil power: it was simply there to maintain security, and to support the civil
administration in Iraq in a number of different ways.
It would indeed have been contrary to the Coalition's policy to maintain a much more
substantial military force in Basrah City when its over-arching policy was to encourage the
Iraqis to govern themselves. To build up an alternative power base capable of delivering all
the rights and performing all the obligations required of a contracting state under the ECHR
at the very time when the IGC had been formed, with CPA encouragement, as a step
79
Gaber Al-Bassiouni v. Prime Minister, H.C.J. 9132/07, Judgment, 30 January 2008.
80
See Y. Shany, ‘The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v. Prime
Minister of Israel ’, Hebrew University International Law Research Paper No. 13-09, 27 February 2009,
available at <http://ssrn.com/abstract=1350307>, at 10 et seq.
81
See also Wilde, above note 30, at 518 et seq.
towards the formation by the people of Iraq of an internationally recognized representative
Government, would have run right against the grain of the Coalition's policies.82
This provoked the following response from Lord Justice Sedley:
In any event, the Court's explanation in Bankovic of the legal distinction between the
bombing of Belgrade and the occupation of northern Cyprus places the British occupation
of the Basra region of Iraq unequivocally in the latter class—subject to the single question of
how much control is, for this purpose, effective control. International human rights law in
its present phase does not answer this question. On the one hand, it sits ill in the mouth of a
state which has helped to displace and dismantle by force another nation's civil authority to
plead that, as an occupying power, it has so little control that it cannot be responsible for
securing the population's basic rights. On the other, the fact is that it cannot: the invasion
brought in its wake a vacuum of civil authority which British forces were and still are unable
to fill. On the evidence before the Court they were, at least between mid-2003 and mid-
2004, holding a fragile line against anarchy.
No doubt it is absurd to expect occupying forces in the near-chaos of Iraq to enforce the
right to marry vouchsafed by Art. 12 or the equality guarantees vouchsafed by Art. 14. But I
do not think effective control involves this. If effective control in the jurisprudence of the
ECtHR marches with international humanitarian law and the law of armed conflict, as it
clearly seeks to do, it involves two key things: the de facto assumption of civil power by an
occupying state and a concomitant obligation to do all that is possible to keep order and
protect essential civil rights. It does not make the occupying power the guarantor of rights;
nor therefore does it demand sufficient control for all such purposes. What it does is place an
obligation on the occupier to do all it can.
If this is right, it is not an answer to say that the UK, because it is unable to guarantee
everything, is required to guarantee nothing. The question is whether our armed forces’
effectiveness on the streets in 2003–4 was so exiguous that despite their assumption of
power as an occupying force they lacked any real control of what happened from hour to
hour in the Basra region. My own answer would be that the one thing British troops did
have control over, even in the labile situation described in the evidence, was their own use of
lethal force. Whether they were justified in using it in the situations they encountered, of
which at least four of the cases before us are examples, is precisely the subject of the inquiry
which the appellants seek. It is in such an inquiry that the low ratio of troops to civilians, the
widespread availability of weapons and the prevalence of insurgency would fall to be
evaluated. But, for reasons I now come to, I am not confident that this route is open in
the present state of ECHR jurisprudence.83
Just like Lord Justice Brooke, the majority of the House of Lords thought that the
UK did not have effective overall control and hence jurisdiction over Basra even
though it had occupied it, although their primary holding was that the effective
overall control of an area test could not even apply in Iraq, as it was outside the
ECHR’s espace juridique.84
82
Al-Skeini CA, paras 124 and 125, citations omitted.
83
Ibid., paras 194, 196, and 197.
84
See Al-Skeini HL, para. 83 (per Lord Rodger):
I would not consider that the United Kingdom was in effective control of Basra and the
surrounding area for purposes of jurisdiction under article 1 of the Convention at the
Al-Skeini is instructive on several points. First, most of the British judges thought
that the UK’s occupation of southern Iraq need not necessarily result in its
jurisdiction over it. Secondly, their reasoning was that in their view the Article 1
ECHR positive obligation to secure human rights would be far too onerous under
the circumstances. Among these circumstances were the strength of the insurgency
against the occupation and the resulting ‘near-chaos’ in the area, the complicated
institutional arrangements among the occupying powers, and the existence of a local
administration that has been growing steadily more independent. Thirdly, the
judges were worried in particular about the procedural positive obligations under
Article 2 ECHR to investigate deprivations of life, which they thought the UK could
not realistically fulfil, primarily because these requirements were developed by the
European Court in times of normalcy, and would be difficult to depart from.85
These concerns are real, and we have already examined them above under the
rubric of effectiveness. If these fears are not addressed, the extraterritorial application
of human rights treaties beckons only as utopia. So let me try to address them. Most
importantly, as Lord Justice Sedley well pointed out, the obligation to secure human
rights is not, and should not be as onerous as the other judges made it seem.86 It is
not an obligation outside the realm of the possible. In its application we may
certainly take into account the law of occupation, and have regard to the extraordi-
nary circumstances involved, if not those that are solely of the UK’s own making.87
That, for example, the UK chose to enter into complicated joint arrangements
with the United States is quite frankly its own problem. So long as its military
presence is such that it remains the occupant, why should it also not be expected to
do all it reasonably can to secure the human rights of the population of the
occupied territory? It cannot just say that it is there only to provide security, and
that it is not even particularly good at that. It should also be borne in mind that
IHL equally abhors ‘paper occupations’.88 A belligerent occupation without effec-
tive control, or at the very least the potential that such control can quickly be re-
established, is simply no longer an occupation.
relevant time. Leaving the other rights and freedoms on one side, with all its troops doing
their best, the United Kingdom did not even have the kind of control of Basra and the
surrounding area which would have allowed it to discharge the obligations, including the
positive obligations, of a contracting state under article 2, as described, for instance in
Osman v. United Kingdom (1998) 29 EHRR 245, 305, paras 115–116.
See also Al-Skeini HL, para. 90 (per Baroness Hale); para. 97 (per Lord Carswell); para. 129 (per Lord
Brown).
85
See Al-Skeini CA, paras 129–40 (per Brooke LJ); Al-Skeini HL, para. 128 (per Lord Brown):
‘Bear in mind too the rigour with which the Court applies the Convention, well exemplified by the
series of cases from the conflict zone of south eastern Turkey in which, the state’s difficulties
notwithstanding, no dilution has been permitted of the investigative obligations arising under articles
2 and 3.’
86
Note, however, that Lord Justice Sedley’s preferred solution was simply that the UK had control
over the actions of its own troops, and that these troops brought individuals within their authority and
control into the UK’s jurisdiction or that no jurisdiction threshold applied, but that he thought this
option was precluded under Bankovic (which it was).
87
See also Wilde, above note 30, at 518–19.
88
See Dinstein, above note 70, at 42–5.
To my mind at least, so long as the British occupation of southern Iraq was not
terminated, the UK had effective overall control for Article 1 ECHR purposes over
the area in question. In all but the most exceptional of cases, the two thresholds
should be the same, so long as it is borne in mind that effective control implies the
power of the state not only to affect the human rights of the population, but also to
secure them, yet that the consequent obligation to secure or ensure human rights is
a flexible one.
Conversely, turning back to the above example of Gaza, we should also resist
accepting that jurisdiction may arise without occupation in situations where states
obtain control over foreign territory by force. While it may seem attractive in some
cases to relax the threshold of jurisdiction below that of occupation, doing so would
actually expose extraterritorial application to the charge of utopia as an ideal
completely divorced from practical considerations. Jurisdiction does require effec-
tiveness, and a relatively stable presence of troops on the ground appears to be the
only way of securing it, at least for the foreseeable future. Borderline cases will of
course present themselves, either somewhere on the fuzzy line between invasion
and occupation, as in Issa, or in situations where the state’s grip on the territory is
being challenged by another force. Likewise, the regime of belligerent occupation
may be transformed into something else without the immediate loss of effective
control and jurisdiction, as has arguably happened in Iraq. Though it is obviously
impossible to provide a one-size-fits-all formula for dealing with such cases, one
thing is certain—that they must be addressed with great caution.
4. Does control need to be exclusive?

A further question that arises is whether control over territory needs to be exclusive
to be considered effective. The short answer is that effective control does normally,
but not necessarily, exclude the exercise of control by the territorial state as the
displaced sovereign.
When control over territory is obtained through the use of force, whether
lawfully or unlawfully, effective control both for the purposes of state jurisdiction
and the establishment of belligerent occupation presumes that the hostile army has
established its own authority over the territory and substituted it for that of the
displaced sovereign, and has successfully managed to suppress the resistance of the
enemy, except perhaps in isolated pockets.
This simple scenario is perhaps the most common one, as for instance with
regard to northern Cyprus. However, the legal situation can get more complicated,
when (1) the occupant creates a subordinate local administration, and allows it a
degree of autonomy; (2) allows the vestiges of the local administration of the
displaced sovereign to operate normally; (3) an insurgency develops in the occupied
territory; (4) the use of force and the occupation are conducted jointly by several
states; (5) the use of force and the occupation are conducted under the auspices of
an international organization; or (6) the belligerent occupation regime is termi-
nated and evolves into some type of pacific occupation.
Scenarios (1) to (3) are perhaps the easiest to deal with. As the European Court
held in Loizidou, the obligation to secure human rights arises whenever a state has
effective control of an area, ‘whether it be exercised directly, through its armed
forces, or through a subordinate local administration’.89 Indeed, occupants have
frequently either set up their own proxy administrations or quisling governments, or
have allowed some parts of the former administration to function so long as any
military resistance is suppressed. This does not imply that everything these local
actors do is attributable to the occupying power. However, while effective control of
the occupant over the territory persists, both occupation and jurisdiction will remain
even in the face of a mounting insurgency. It is of course entirely possible that the
occupation forces are defeated and that they lose effective control, but it is only then
that jurisdiction over the territory will also cease. With regard to the existence of a
semi-autonomous local administration, particularly a legitimate one, its competences
can certainly be taken into account in a due diligence analysis on the merits with
respect to the state’s positive obligation to secure or ensure human rights.
Scenario (4) is more complex, if not hopelessly so. States frequently take joint
military action. They can do so in a variety of ways, from operating in a loose
alliance, to putting their forces under unified military command. Depending on the
exact institutional arrangements that they create, they can either exercise control
over an area jointly, or they can divide a larger area into smaller units, each of which
would be controlled by a specific national contingent, or perhaps even both. Post-
2003 Iraq provides a good example. Iraq was under a regime of belligerent
occupation from the completion of the invasion, with the United States and the
United Kingdom being regarded by the UN Security Council as the occupying
powers in Iraq, who had set up a unified command, the Coalition Provisional
Authority.90 The belligerent occupation lasted up until the end of June 2004 at the
earliest, when the CPA transferred authority to the new Interim Government of
Iraq—though the issue of the end of the occupation is controversial.91 Let us
consider at least the uncontested period of occupation, when the UK and the US
were joint occupying powers over the whole of Iraq, but when in fact the UK
mostly held the southern parts of Iraq, while the US occupied the rest. During this
period, did the UK have jurisdiction over the whole of Iraq, since it was one of the
joint occupying powers operating under unified command, or did it merely have
jurisdiction over Basra and southern Iraq? This question is certainly a difficult one,
89
Loizidou, para. 62.
90
See UNSC Res. 1483 (2003), with the Council in a preambular paragraph ‘recognizing the
specific authorities, responsibilities, and obligations under applicable international law of these states as
occupying powers under unified command (the “Authority”)’.
91
See UNSC Res. 1546 (2004), op. para. 2, in which the Council welcomed that ‘by 30 June
2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq
will reassert its full Sovereignty’. It is unclear whether the Council was merely recognizing the fact of
the occupation ending, even though whether this factual appraisal may have been inaccurate, or
whether the Council actually terminated the occupation on its own authority. See further R. Kolb,
‘Occupation in Iraq since 2003 and the Powers of the UN Security Council’, (2008) 90 IRRC 29;
M. Sassoli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’, (2005)
16 EJIL 661.
and to answer it one would need to examine in detail the realities of the supposedly
unified US/UK command. In principle, however, it is certainly possible that both
the US and the UK had jurisdiction, i.e. effective overall control, over the same
areas of Iraq.92
Similar to (4), but even more complex, is scenario (5), which involves joint state
action though an international organization. Take as an example Kosovo after the
1999 NATO intervention against the then Federal Republic of Yugoslavia. The
Security Council passed Resolution 1244 (1999), creating an international civil
administration under UNMIK, a subsidiary organ of the UN, and KFOR, a
NATO-led international military presence. Kosovo was not under a regime of
belligerent occupation, since Yugoslavia had ultimately consented (if under some
duress) to the deployment of the international forces in Kosovo, and since the
Security Council had created a comprehensive regime of international administra-
tion over the territory. Though KFOR operated under unified command, Kosovo
was divided up into several military districts, each of which was controlled by a
particular national contingent.
The fundamental question posed by the Kosovo example is whether, say, the
inhabitants of the area controlled by the French national contingent were within
the jurisdiction of France within the meaning of Article 1 ECHR. Antecedent to
that question is the issue whether the acts of French troops in Kosovo were, in fact,
still attributable to France. In Behrami, the Grand Chamber of the European Court
held that the conduct of French troops was not attributable to France, but to the
United Nations, since French troops in Kosovo operated there pursuant to a UN
Security Council mandate.93 The customary rules regarding attribution of conduct
to international organizations are admittedly less clear than those on state responsi-
bility. Their codification is currently in the ILC’s pipeline, which has so far
produced and adopted on first reading a set of draft articles.94 Having said so, in
Behrami the European Court manifestly misapplied even the few clear rules that we
actually have, by equating Security Council authorization with (exclusive) attribu-
tion of conduct to the UN, even when the UN itself lacks effective control over
national contingents, and by ignoring the possibility of dual or multiple attribution.
The Behrami decision has therefore attracted overwhelming criticism from numer-
ous scholars,95 including from the present author.96 Most importantly, it has been
rejected by the ILC in no uncertain terms.97
92
The occupation of Germany by the Four Powers presented a similar factual scenario. See also the
discussion of the Hess case in note 48 above.
93
71412/01 and 78166/01, 2 May 2007.
94
ILC, Draft Articles on the Responsibility of International Organizations, as adopted on first
readings, UN Doc. A/64/10 (2009) (hereinafter ILC DARIO).
95
See, e.g. A. Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The
Behrami and Saramati Cases’, (2008) 8 HRLR 151; K. Mujezinovic Larsen, ‘Attribution of Conduct in
Peace Operations: The “Ultimate Authority and Control” Test’, (2008) 19 EJIL 509.
96
See M. Milanovic and T. Papic, ‘As Bad As It Gets: The European Court of Human Rights’
Behrami and Saramati Decision and General International Law’, (2009) 58 ICLQ 267.
97
See G. Gaja, Seventh Report on Responsibility of International Organizations, UN Doc.
A/CN.4/610, 27 March 2009, at 10; ILC DARIO, at 62 et seq.
But though Behrami may have been wrongly decided, it is true that attribution
matters for resolving the question of state jurisdiction. It is only if the conduct of
French troops in Kosovo was attributable to France, although it may also have been
attributable to NATO or even to the UN as separate legal persons, that France
could have exercised jurisdiction over a part of Kosovo. Conversely, it is only if the
conduct of the troops is not attributable to the troop contributing state, but only to
the organization, that the possibility that the state is exercising jurisdiction can be
excluded.98
In any case, as with attribution, the exercise of jurisdiction need not be exclusive.
That UNMIK ran the civil administration of Kosovo, and that other parts of
Kosovo were controlled by other national contingents, are both circumstances that
can be taken into account when interpreting the substantive content of the positive
obligation to secure human rights.
As for scenario (6), it poses unique challenges in that it involves the transforma-
tion of a regime which is relatively clear, that of belligerent occupation, into one of
pacific occupation (if that),99 the contours of which are far less defined. Consider
the examples of Iraq and Afghanistan. In both cases a coalition of states used force
against the two countries, whether lawfully or unlawfully. In both cases a regime of
belligerent occupation ensued, whether more or less formalized. As time went on,
that regime was supplemented and in parts overridden by UN Security Council
action, while preparations were underway for the creation of new, internationally
recognized governments. Both of these states eventually gained such new govern-
ments, which then gave their consent to the presence of foreign troops. At that
point at the latest, the regime of belligerent occupation must have terminated, as
such occupation can by definition be only non-consensual.100
From that moment onwards, the conduct of foreign troops was governed by the
limits of the territorial state’s consent, and by applicable Security Council resolu-
tions. The situation on the ground, however, need not have changed dramatically,
if it had changed at all. Although, for example, the nascent armed forces of the new
legitimate government now started participating in joint military operations with
foreign troops, the interveners could still be said to have had effective control over
large swathes of territory. In my view, while such control persists, the intervening
states can be said to exercise jurisdiction over the areas concerned within the
meaning of the relevant human rights treaties. Likewise, the same could be said
of the now independently governed territorial state, so long as it also had the
requisite degree of actual control. There is no need, in principle, for the control of
either the intervening states or the territorial state to be exclusive.
What is certainly true is that, after the termination of belligerent occupation, the
new limits on what the intervening states may lawfully do can pose substantial
98
See above, Chapter II, Section 3.D.
99
See generally E. Benvenisti, ‘Occupation, Pacific’, in Max Planck Encyclopedia of Public
International Law, available at <http://www.mpepil.com>. See also G. Fox, Humanitarian Occupation
(Cambridge University Press, 2008).
100
See, e.g., Dinstein, above note 70, at 35–7.
difficulties. However, the interpretation of the obligation to secure human rights

can be sufficiently flexible to take into account both the dispositions of authority in
Security Council mandates, and the need to respect the sovereignty of the territorial
state. But, as I have discussed above, though flexible it cannot be watered down so
much that it becomes completely ineffective. If, for example, the US and UK had
knowledge that Iraqi government forces were engaging in human rights violations
in areas that were still under US and UK effective overall control,101 the US and the
UK would (or should) have been faced with a choice: either put an end to Iraqi
human rights abuses, by force if necessary and in likely violation of Iraqi sovereignty,
or withdraw from Iraq. The situation, in other words, would be one of norm
conflict.102
In sum, the scenarios that we have just examined show us that while jurisdiction
over territory is normally exclusive, it need not necessarily be so. And while such
cases can pose significant difficulties, these are not insurmountable. Further exam-
ples of joint or parallel jurisdiction can arise in cases, to which I will turn next,
involving control over places or objects, rather than large areas of territory.
D. Control over places and objects

1. A general theory?
Readers will recall my discussion above of what constitutes an ‘area’ susceptible to
state control for the purposes of establishing its jurisdiction. That discussion has
ultimately proven to be incapable of providing any firm answers, except that the
more an ‘area’ diminishes in size, the more it becomes a ‘place’, the more artificial it
seems to apply the spatial concept of state jurisdiction to it. And of course the line
between a ‘place’ proper, such as a building, or parts of that building or even a
square foot or two within it, is also difficult to draw.
But assume that we can actually draw some reasonable lines that would enable us
to prevent the collapse of the control over a place criterion into something
resembling control over a mere speck or an atom of land. Does such control over
a place present a general theory or grounds for establishing state jurisdiction for the
purposes of human rights treaties? Or is it rather the special nature of some places,
such as embassies, that brings them and the individuals located in them within the
extraterritorial state’s jurisdiction?
The first proposition is certainly the more intriguing one, as it has the potential
of providing a principled approach rather than relying on some unavoidably
arbitrary criteria of speciality. Explicit textual support for this proposition can be
101
See, e.g., ‘Iraq’s Death Squads,’ Washington Post, 4 December 2005, available at <http://www.
washingtonpost.com/wp-dyn/content/article/2005/12/03/AR2005120300881.html>; ‘New Order,
Same Abuses: Unlawful Detentions and Torture in Iraq’, Amnesty International, 13 September
2010, available at <http://www.amnestyusa.org/pdf/Iraqrpt_newordersameabuses.pdf>; ‘Iraq:
Detainees Describe Torture in Secret Jail’, Human Rights Watch, 27 April 2010, at <http://www.
hrw.org/en/news/2010/04/27/iraq-detainees-describe-torture-secret-jail>.
102
See above, Chapter III, Section 9.
found in two jurisdiction clauses, Article 2 CPT 103 and Article 4(1) of the Optional
Protocol to the CAT.104 As for the CAT itself, the Committee Against Torture has
in its General Comment No. 2 interpreted its jurisdiction clauses which refer to
‘any territory under [a state’s] jurisdiction’ as also encompassing places under the
state’s control:
The Committee also understands that the concept of ‘any territory under its jurisdiction,’
linked as it is with the principle of non-derogability, includes any territory or facilities and must
be applied to protect any person, citizen or non-citizen without discrimination subject to the de
jure or de facto control of a State party. The Committee emphasizes that the State’s obligation
to prevent torture also applies to all persons who act, de jure or de facto, in the name of, in
conjunction with, or at the behest of the State party.105
Thus, in the Committee’s view, the concept of ‘territory’ includes ‘facilities’. The
Committee further added that
[a]rticle 2, paragraph 1, requires that each State party shall take effective measures to prevent
acts of torture not only in its sovereign territory but also ‘in any territory under its
jurisdiction.’ The Committee has recognized that ‘any territory’ includes all areas where
the State party exercises, directly or indirectly, in whole or in part, de jure or de facto
effective control, in accordance with international law. The reference to ‘any territory’ in
article 2, like that in articles 5, 11, 12, 13 and 16, refers to prohibited acts committed not
only on board a ship or aircraft registered by a State party, but also during military
occupation or peacekeeping operations and in such places as embassies, military bases,
detention facilities, or other areas over which a State exercises factual or effective control.
The Committee notes that this interpretation reinforces article 5, paragraph 1 (b), which
requires that a State party must take measures to exercise jurisdiction ‘when the alleged
offender is a national of the State.’ The Committee considers that the scope of ‘territory’
under article 2 must also include situations where a State party exercises, directly or
indirectly, de facto or de jure control over persons in detention.106
Note, however, how the Committee’s approach tends to collapse to the notion of
jurisdiction as control over individuals—in a textually problematic way, it must be
said, with regard to the provisions of the CAT. As for the European Court, the case
which came the closest to endorsing a general theory is of course Al-Saadoon:
The Court considers that, given the total and exclusive de facto, and subsequently also de
jure, control exercised by the United Kingdom authorities over the premises in question, the
individuals detained there, including the applicants, were within the United Kingdom’s
jurisdiction. This conclusion is, moreover, consistent with the dicta of the House of Lords in
103
‘Each Party shall permit visits, in accordance with this Convention, to any place within its
jurisdiction where persons are deprived of their liberty by a public authority’ (emphasis added).
104
‘Each State Party shall allow visits, in accordance with the present Protocol, by the mechan-
isms referred to in articles 2 and 3 to any place under its jurisdiction and control where persons are
or may be deprived of their liberty’ (emphasis added).
105
Committee Against Torture, General Comment No. 2, UN Doc. CAT/C/GC/2, 24 January
2008, para. 7 (emphasis added).
106
Ibid., para. 16.
Al-Skeini and the position adopted by the Government in that case before the Court of
Appeal and House of Lords.107
The Chamber in Al-Saadoon exhibited a high level of caution, aware as it was of
contradictory case law all around it. Note, for example, how it treats the ‘dicta’ of
the House of Lords in Al-Skeini, agreeing with the conclusion that Baha Mousa,
who was detained by UK troops, was within the UK’s jurisdiction, yet without
endorsing the reasoning of the House of Lords. That reasoning, as we have seen, was
precisely that Baha Mousa was within the UK’s jurisdiction for a ‘special’ reason:
that a UK military prison abroad was essentially analogous to a UK embassy. 108
I, for one, find these special or exceptional explanations endorsed by the House
of Lords to be entirely unsatisfactory. Not only does the analogy between a military
prison and an embassy defy common sense, as there is simply no such thing as a
‘special status’ of a military prison in international law,109 it introduces distinctions
which are entirely arbitrary. For example, a person detained in an embassy or in a
military prison might be entitled to protection under human rights treaties, but
what about a person detained in a CIA ‘black site’, such as that riding school in
Lithuania? Is that also sufficiently like an embassy or not, and if not, why not?
The only thing common both to a prison and to an embassy are that they operate on
the basis of the territorial state’s consent.110 But if this was the basis for the extraterri-
torial state’s jurisdiction, no justification is given for this position, aside from the
fallacy that the application of human rights treaties would as such infringe on the
territorial state’s sovereignty.111 Indeed, one would imagine that non-consensual
interventions would generally be more likely to adversely affect the human rights of
the population, while consent itself can be given to many things, such as to the
presence of foreign forces in general, or to rendition overflights, or the operation of a
CIA ‘black site’.
If, on the other hand, we were to adopt the general theory of control over places
as a basis for state jurisdiction, then many of the same considerations that we have
already examined with regard to control over territory would apply accordingly,
with one major difference. A place is by definition located within a territory under
another state’s jurisdiction, and control over such places can by its nature be much
more fleeting than effective overall control over large areas of territory would
normally be. In all but the most exceptional of circumstances, such control can
be maintained with any stability only with the consent of the territorial state. In
other words, without Lithuania’s consent, the US could probably never have
operated the black site on the outskirts of Vilnius. Its control over that place was
only viable because the state controlling the territory acquiesced in it. Accordingly,
107
Al-Saadoon (dec.), para. 88, citations omitted.
108
See Al-Skeini HL, para. 97 (per Lord Carswell), para. 132 (per Lord Brown). See also Al-Skeini
DC, para. 287: ‘a British military prison, operating in Iraq with the consent of the Iraqi sovereign
authorities, and containing arrested suspects, falls within even a narrowly limited exception exemplified
by embassies, consulates, vessels and aircraft’.
109
See also T. Thienel, ‘The ECHR in Iraq’, (2008) 6 JICJ 115, at 127.
110
See also above note 50 and accompanying text.
111
this is also a scenario of concurrent, rather than exclusive jurisdiction. If we accept
that the US had jurisdiction over the black site near Vilnius, this does not mean that
Lithuania did not have jurisdiction—its obligation to secure the human rights of all
persons detained at the black sites was undiminished. The black site most certainly
did not drill a black hole in Lithuania’s own ECHR obligations.
On the other hand, if we turn back to our example of the abduction of Adolf
Eichmann from Argentina, I would personally find it difficult to accept that the safe
house in which the Israeli agents kept Eichmann until he was smuggled to Israel
aboard an aircraft amounted to a place under Israel’s jurisdiction. Again, it is simply
far too artificial to say that it is the Israeli agents’ control of a minuscule space
between four walls, rather than their control of Eichmann’s person, that would
entitle Eichmann to the protection of his human rights vis-à-vis Israel. In any event,
though the viability of any long-term control over a place would generally require
the consent of the territorial state, this is simply a question of fact, rather than a legal
requirement—and new facts can always surprise us.
That is all that can be said, I think, about control over a place as a general basis
for state jurisdiction. I will now turn to the supposedly special cases of embassies,
vessels, and aircraft on which the House of Lords relied so prominently in Al-
Skeini. The root cause of this methodological confusion can, predictably, be traced
back to Bankovic.
2. Embassies and consulates

In order to limit as much as possible the scope of the ECHR’s extraterritorial
application, the European Court in Bankovic held that such application can be
justified only exceptionally, supposedly on grounds of general international law.
One of the many problems with this holding is that it contradicted the prior case
law of the Convention institutions, which the Court was now forced to ‘clarify’,
rather than explicitly depart from. It thus said the following:
Additionally, the Court notes that other recognised instances of the extra-territorial exercise of
jurisdiction by a State include cases involving the activities of its diplomatic or consular agents
abroad and on board craft and vessels registered in, or flying the flag of, that State. In these
specific situations, customary international law and treaty provisions have recognised the extra-
territorial exercise of jurisdiction by the relevant State.112
Note, first, that the Court here speaks about acts of diplomatic and consular agents,
not diplomatic and consular premises, as the supposed ‘embassy exception’ was
interpreted by UK courts. Even so, this paragraph is doubly wrong. First, to the
extent that it claims to restate the prior case law of the Strasbourg institutions, it
actually provides an anachronistic reinterpretation of these cases, as we will now see.
Secondly, to the extent that it argues that public international law recognizes some
sort of special or exceptional exercise of state jurisdiction over embassies, ships, or
aircraft, it is incorrect, and again mixes up the various meanings of the word
112
Bankovic, para. 73.
‘jurisdiction’ and accordingly the various concepts of jurisdiction in international

law.
Let us first take a look at the case law—the case law being that of the now
defunct European Commission, since the Court itself has to my knowledge never
taken up an ‘embassy’ case. Perhaps the first such case, decided in 1965, was X v.
Federal Republic of Germany,113 which dealt with several complaints made by a
German national residing in Morocco against the conduct of German diplomatic
and consular officials there. In that case the Commission gave the briefest consid-
eration to the issue of extraterritorial application, in the following terms:
. . . in certain respects, the nationals of a Contracting State are within its ‘jurisdiction’ even
when domiciled or resident abroad; [ . . . ] in particular, the diplomatic and consular
representatives of their country of origin perform certain duties with regard to them
which may, in certain circumstances, make that country liable in respect of the Conven-
tion.114
As I have argued above, the nationality of the victim of a human rights violation, on
which the Commission may have relied, should have no bearing on the question
of extraterritorial application.115 On the other hand, the Commission’s second
sentence might be taken as regarding as relevant the supposedly special nature of
diplomatic and consular agents. Ten years later, in its first decision on northern
Cyprus,116 the Commission developed on its holding in X v. Germany:
aircraft, are partly within its jurisdiction wherever they may be, and that authorised agents of
a State, including diplomatic and consular agents and armed forces, not only remain under
its jurisdiction when abroad but bring any other persons or property ‘within the jurisdiction’
of that State, to the extent that they exercise authority over such persons or property. Insofar
as, by their acts or omissions, they affect such persons or property, the responsibility of the
State is engaged.117
Again the Commission refers to the relevance of nationality, now subsuming
registered ships and aircraft under that heading. More importantly, however, it
says that the authorized agents of a state, including, but not limited to its diplomatic
and consular agents, remain under the state’s jurisdiction, and can bring under its
jurisdiction those persons over which they exercise authority. In other words, the
Commission adopted a personal, rather than spatial conception of Article 1 ECHR
jurisdiction, which it thought applicable to all state agents. This became the
constant jurisprudence of the Commission.118
113
X v. Federal Republic of Germany (dec.), App. No. 1611/62, 25 September 1965, 8 Yearbook of
the European Convention on Human Rights 158. See also Chapter III, note 134 and accompanying text.
114
Ibid., at 168.
115
See above, Chapter III, Section 5. See also below, Section 3.D.3.
116
117
Ibid, at 136, para. 8.
118
See X v. United Kingdom (dec.), App. No. 7547/76, 15 December 1977, concerning the acts of
British consular officials in Jordan. Though the application was held to be manifestly ill-founded, the
Viewed as a whole, the Commission’s jurisprudence gave little weight to the
supposedly special nature of diplomatic or consular officials, or of diplomatic and
consular premises, for the purpose of establishing state jurisdiction within the
meaning of Article 1. Nor does general international law, for that matter. It is
true that diplomatic and consular officials are permitted to exercise certain public
functions over individuals while in the territory of the receiving state—from issuing
visas and entry permits, to protecting their nationals abroad. But the only reason
why they can do so is because the receiving state has consented to their presence. In
times past, diplomatic and consular officials in certain non-Western states had far
greater powers under the rubric of consular jurisdiction, which entailed, for
example, their exclusive capacity to try their own nationals for offences committed
in the host state. Even then, however, this capacity was based on the host state’s
consent through so-called capitulations or unequal treaties.119 In modern interna-
tional law, which is premised on the sovereign equality of all states, the role of
diplomatic and consular officials is far more limited.
Either way, it is entirely misleading to say that customary law recognizes the
‘special’ nature of the extraterritorial exercise of state jurisdiction by these officials.
There is nothing special about it, except that it is regularized, in the sense that a
defined set of customary and treaty rules, agreed upon in advance, applies to these
officials once the territorial state gives its consent. But the basis for their acts is still
exclusively in the consent itself. The territorial state can withdraw its consent at any
time, or can provide consent which is much wider in scope, for example by inviting
a foreign military intervention, or by allowing a foreign power to run a military
prison. As with the case of effective control over territory generally, this consent is
only relevant for assessing whether the extraterritorial act of a foreign state is lawful
or not, i.e. whether it violates the sovereignty of the territorial state, but it has no
bearing on the fact of the extraterritorial exercise of state power, which may affect
individuals in the territorial state. Again, there is simply no valid explanation as to
why consent by the territorial state should matter for the purposes of establishing
Article 1 ECHR state jurisdiction.120
On the other hand, it is true that both customary and conventional international
law provide for a limited immunity of diplomatic and consular officials, and
Commission thought that the applicant was within UK jurisdiction even though he was outside UK
territory:
It is clear, in this respect, from the constant jurisprudence of the Commission that
authorised agents of a State, including diplomatic or consular agents, bring other persons
or property within the jurisdiction of that State to the extent that they exercise authority
over such persons or property. Insofar as they affect such persons or property by their acts or
omissions, the responsibility of the State is engaged.
See also WM v. Denmark (dec.), App. No. 17392/90, 14 October 1993; Gill and Malone v. The
Netherlands and the United Kingdom (dec.), App. No. 24001/94, 11 April 1996. See further below,
Section 3.
119
See generally C. Bell, ‘Capitulations’, as well as P. Czubik and P. Szwedo, ‘Consular Jurisdiction’,
both in Max Planck Encyclopedia of Public International Law, available at <http://www.mpepil.com>,
and the sources cited therein.
120
See above, Section 2.C.1.
diplomatic and consular premises, from the host state’s jurisdiction.121 And, of
course, the host state may well decide to grant similar immunities to other foreign
agents on its territory, as is often the case, for instance, with foreign troop
contingents and military bases, the deployment of which frequently requires the
conclusion of a status of forces agreement that may provide for various privileges
and immunities.122 Does this mean that even though they are present in the host
state’s territory, or more precisely a territory under its control, these officials and
premises are not actually within the host state’s jurisdiction, within the meaning of
the relevant human rights treaties?
The short answer is no. To develop that, let us take a closer look at the immunity
rules of diplomatic and consular law. For example, Article 22 of the Vienna
Convention on Diplomatic Relations provides that the premises of a diplomatic
mission shall be inviolable; that they may not be entered by the agents of the
receiving state except with the consent of the head of mission; that they will be
immune from search, requisition, or execution; and that the receiving state has a
special duty to protect them from third parties. With respect to diplomatic agents,
Article 29 of the Convention provides that their persons shall be inviolable, while
Article 31 stipulates that they shall be immune from the criminal jurisdiction of the
receiving state, as well as from civil jurisdiction except in certain cases, such as
disputes regarding private immovable property. In any event a diplomatic agent
enjoys immunity from execution.
However, pursuant to Article 41(1) of the Convention, ‘[w]ithout prejudice to
their privileges and immunities, it is the duty of all persons enjoying such privileges
and immunities to respect the laws and regulations of the receiving State. They also
have a duty not to interfere in the internal affairs of that State.’ Article 41(3) further
provides that ‘[t]he premises of the mission must not be used in any manner
incompatible with the functions of the mission as laid down in the present
Convention or by other rules of general international law or by any special
agreements in force between the sending and the receiving State’.
So, for example, are the Serbian ambassador to the United Kingdom and the
Serbian embassy in London within the UK jurisdiction for the purposes of Article 1
ECHR or the relevant jurisdiction clauses of other human rights treaties? Or are
they rather within Serbian jurisdiction? Let us consider the following (purely
hypothetical!) examples:
(1) The Serbian ambassador, while acting in his official capacity and under
authorization from the Serbian government, kills somebody in London; was
the victim of that deprivation of life within UK or Serbian jurisdiction, and
could his family file an application against either the UK or Serbia with
Strasbourg?
121
See generally H. Fox, The Law of State Immunity (Oxford University Press, 2nd edn, 2008), at
665 et seq.
122
See generally P. Conderman, ‘Status of Armed Forces on Foreign Territory Agreements
(SOFA)’, in Max Planck Encyclopedia of Public International Law, available at <http://www.mpepil.
com>.
(2) The Serbian ambassador, again while acting in his official capacity, kills
someone on the premises of the Serbian embassy in London; did, for
instance, the UK have the positive obligation to secure the right to life of
the victim, even though he was present within the Serbian embassy?
(3) Conversely, the Serbian ambassador, now a complete innocent, is killed by
some crazy person while on a stroll in Hyde Park; can his family file an
application against the UK for failing to secure his right to life?
To address these scenarios, it is again important to recall the various meanings that
the word ‘jurisdiction’ can have in international law. The ‘jurisdiction’ from which
diplomatic agents have immunity within certain limits is the jurisdiction to enforce,
the state’s authority to enforce the laws that it has previously prescribed. However,
diplomatic agents do not have immunity from the receiving state’s jurisdiction to
prescribe—they must obey and comply with applicable domestic law. On the other
hand, our jurisdiction—the state jurisdiction referred to in human rights treaties—
is neither of these. Rather, it refers to state control through its agents over territory,
or perhaps a place, or maybe even an individual.123
So, to look at example (1), if the Serbian ambassador were to kill a Londoner, the
victim would certainly be within the UK’s jurisdiction, as the killing took place in
London, an area under which the UK has effective overall control. The victim
would only be within Serbia’s jurisdiction if we consider that jurisdiction can also
arise from the authority and control exercised by state agents over an individual,
even if that control is exercised in an area outside the state’s control. This is of
course the personal rather than spatial conception of jurisdiction, the model which I
will be examining shortly in some detail. However, whatever the general validity of
that model, it seems to me to be perfectly irrelevant whether the killing was
committed by a diplomatic agent, such as the Serbian ambassador, or by any
other authorized agent of Serbia, i.e. a person whose acts are attributable to it.
Now, if the victim of the killing was within the UK’s jurisdiction, this means that
the UK had a positive obligation to secure the right to life of the victim. Normally,
this obligation has two aspects: the UK would have to do all it could to prevent the
killing from taking place, and if it was nonetheless unable to do so, it would have to
investigate the crime and prosecute the person responsible.124 On the other hand,
Article 29 of the Vienna Convention provides that ‘[t]he person of a diplomatic
agent shall be inviolable. He shall not be liable to any form of arrest or detention’,
while Article 31 exempts diplomatic agents from the territorial state’s criminal
jurisdiction. Imagine, therefore, that under the observant gaze of UK police officer,
the Serbian ambassador accosts his victim on a London street, holding a gun in his
right hand, while carrying in his left hand a sign saying ‘I am the Serbian ambassa-
dor, I am acting in my official capacity, and my person is inviolable.’ Would the
123
124
See generally A. Mowbray, The Development of Positive Obligations under the European Conven-
tion on Human Rights by the European Court of Human Rights (Hart Publishing, 2004), at 7 et seq.
police officer have the positive obligation to tackle or maybe even shoot the
ambassador to prevent the killing from taking place?
This situation is one of apparent norm conflict, with the ECHR commanding
the UK to prevent the killing, and the Vienna Convention prohibiting it from
taking any practical measures in doing so.125 This norm conflict can perhaps be
avoided. Thus, we could say either that the ECHR positive obligation to prevent
the killing should be read down so that the UK does not have to act in such a way as
to violate its other international obligations by infringing on the ambassador’s
person, or that it is the Vienna Convention that should be read down so that a
limited exception is carved out of its prohibitions, allowing the authorities of the
receiving state to prevent diplomatic agents from committing imminent unlawful
acts (as a matter of policy, if not the treaty text, the most reasonable solution).126
Alternatively, if such a reading down of either treaty is impossible, then we would
have an unresolvable norm conflict on our hands—whatever the police officer did,
the UK would violate one of its international obligations.
Turning now to example (2), if the Serbian ambassador killed someone in the
Serbian embassy, could the victim now be said to be within Serbian jurisdiction? If
we consider that Article 1 ECHR jurisdiction extends to control over places, and
not just large areas of territory, à la Al-Saadoon, then one could say yes to that
question. But again, the fact that the premises in question are an embassy to me
seems to be perfectly irrelevant. If we recall for a moment the example of the CIA
black site in Lithuania, it would seem entirely arbitrary to say that a person detained
in the US embassy in Vilnius would be within US jurisdiction, but that a person
detained at the Vilnius riding school black site a few miles away would not, just
because the former is a diplomatic mission. Not only would such a position be
devoid of any broader principle, but it would manifestly open the door to abuse.
But what about the positive obligations of the host country? If, say, UK police
officers stationed near the Serbian embassy in London heard loud screaming
coming from the embassy, with the poor victim shouting at the top of his lungs
that he was being tortured inside, would the UK have a positive obligation under
the ECHR to put an end to the crime, by entering the embassy by force if
necessary, as it would in all other circumstances? One possible answer is that
since the Serbian embassy in London is within Serbia’s jurisdiction, it would be
outside the UK’s jurisdiction, and therefore that the UK would owe no positive
obligations to persons in it. However, recall that jurisdiction need not necessarily be
exclusive. There is to my mind nothing contradictory in saying that the Serbian
embassy in London is a place under Serbia’s control, and therefore within its
125
126
In fact, this is what the ICJ did in the Tehran Hostages case, where it remarked that
[n]aturally, the observance of this principle [of inviolability] does not mean—and this the
Applicant Government expressly acknowledges—that a diplomatic agent caught in the act
of committing an assault or other offence may not, on occasion, be briefly arrested by the
police of the receiving State in order to prevent the commission of the particular crime.
United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, ICJ Reports
1980, 3, at 40, para. 86.
jurisdiction, but that this place is located in an area under UK control, and
therefore also within the UK’s jurisdiction. And if this so, then just as with example
(1) we are faced with an apparent norm conflict between the UK’s obligations
under the ECHR and its obligations under diplomatic law.127
As for example (3), that the Serbian ambassador to the UK is immune from UK
jurisdiction in the sense that the UK may not subject him to criminal proceedings,
detention, or arrest, does not mean that he is actually not within the UK’s
jurisdiction for the purposes of Article 1 ECHR. If he were actually to be killed
while taking a walk in London, the UK would not only have an obligation to
prevent and investigate his death under the Vienna Convention—it would also
have such an obligation under Articles 1 and 2 ECHR.
These scenarios could of course be considered to be quite fanciful. After all, aside
from the occasional traffic or hunting accident, ambassadors do not normally go
about killing or torturing people. These examples do, however, convincingly expose
the sheer folly of considering either diplomatic and consular agents, or the premises
from which they operate, as somehow being ‘special’ for the purposes of establish-
ing state jurisdiction under human rights treaties.128 These agents are not distin-
guishable by their function from all other state agents, nor are these premises
different from other places under state control. We should also not forget that
states may grant similar immunities to foreign military forces or other agents. Nor,
consequently, does an analogy between an embassy and any other place, such as a
military prison in Al-Skeini, make any sense whatsoever. It is manifestly nothing
more than a device used to narrow extraterritorial application to those situations
which we substantively consider to be morally intolerable, such as the abuse and
killing of a defenceless prisoner, while rejecting extraterritorial application in cases
which are not so black and white.
3. Ships and aircraft

The Bankovic and Al-Skeini dicta on the supposedly special nature of ships and
aircraft are similarly misguided. Again, while it is true that international law
recognizes that states may exercise prescriptive jurisdiction over registered ships
and aircraft, this is simply not the ‘jurisdiction’ referred to in Article 1 ECHR. Let
me once more bring up the example of Article 9(1) of the UN Enforced Dis-
appearances Convention, which provides as follows:
Each State Party shall take the necessary measures to establish its jurisdiction over the
offence of enforced disappearance:
127
See also M. Shaw, International Law (Cambridge University Press, 6th edn, 2009), at 754;
E. Denza, Diplomatic Law (Oxford University Press, 3rd edn, 2008), at 150: ‘In the last resort,
however, it cannot be excluded that entry without the consent of the sending State may be justified in
international law by the need to protect human life.’
128
Similarly, see Zimmermann, above note 52, at 759–60.
(a) When the offence is committed in any territory under its jurisdiction or on board a
ship or aircraft registered in that State;
(b) When the alleged offender is one of its nationals;
(c) When the disappeared person is one of its nationals and the State Party considers it
appropriate.
The first use of the word ‘jurisdiction’ in the chapeau of this article refers to the
concept of the jurisdiction to prescribe. The article as a whole requires states to make
enforced disappearances crimes under their domestic law, and that the scope of
application of this domestic law should be based on the territorial and active
personality and if the state wishes also the passive personality heads of prescriptive
jurisdiction. It is this ‘jurisdiction’ of states that general international law specifi-
cally recognizes with regard to registered ships and aircraft, by assimilating them to
state territory for the purpose of the state’s authority to legislate. In other words,
just as international law accepts that it is a fundamental prerogative of a state’s
sovereignty to prescribe legal rules for persons and their conduct within its territory,
so does it accept the state’s authority to do the same with regard to registered ships
and aircraft or those flying its flag.129
But this ‘jurisdiction’ is not the jurisdiction referred to in Article 1 ECHR or in
the similar clauses of other human rights jurisdiction. That ‘jurisdiction’ is the one
that makes its appearance in subparagraph (a) quoted above: ‘territory under its
jurisdiction’. When Article 9(1)(a) of the Disappearances Convention stipulates
that a state party shall have the duty to ‘establish its jurisdiction . . . when the
offence is committed in any territory under its jurisdiction’, it is not setting out a
tautology. Rather, the meaning of the two ‘jurisdictions’ is not the same. The
former refers to the authority to prescribe legal rules, the latter to effective overall
control by a state over a territory. Therefore, in plain English, the article as a whole
requires states to criminalize the Convention offences in all territories under their
control.
The question thus is not whether the former concept of jurisdiction can apply to
registered ships and aircraft—it clearly does. Rather, the issue is whether the spatial
concept of jurisdiction as control over territory and places can also extend to cover
ships and aircraft, as distinct man-made objects. And, if it can, what should be its
parameters? Should it really matter whether the ship or aircraft is registered in a
specific state, or whether it flies its flag, or should jurisdiction over such objects
rather depend on state control over them?
To answer this question, we now need to take a closer look at some of the case
law. With regard to ships, perhaps the European Court’s earliest case is Rigopoulos v.
Spain.130 The applicants were the crew of a Panamanian-flagged ship that was on
the high seas when it was boarded by a Spanish vessel on suspicion of drug
trafficking, pursuant to a warrant by a Spanish court and with the consent of
Panamanian authorities. They complained that they were unlawfully detained.
129
130
Rigopoulos v. Spain (dec.), App. No. 37388/97, 12 January 1999.
Though the Court declared the application inadmissible as manifestly ill-founded, it
seems to have accepted that the ECHR could apply to a Panamanian ship on the high
seas, though it did not explicitly consider Article 1 ECHR.
In Xhavara,131 the applicants were Albanian nationals who were attempting to
get to Italy on an Albanian-registered ship, when that ship was rammed by an
Italian warship on the high seas. The applicants alleged that the Italian warship’s
action was intentional, and that it therefore engaged Articles 2 and 3 of the
Convention. The Court declared the application inadmissible for failure to exhaust
domestic remedies, but it made no mention of the fact that the applicants were
located on an Albanian ship on the high seas at the time the violation occurred. In
other words, it again did not seem to have considered that there was an Article 1
ECHR issue at all.
Article 1 ECHR did make an appearance in Medvedyev and Others v. France, the
facts of which remarkably resembled Rigopoulos: the applicants were crew members
on a merchant ship infelicitously named the Winner, flying the Cambodian flag. As
part of the international effort to combat drug trafficking, the French authorities
were informed that the ship might be carrying large quantities of illegal drugs.
France requested, and obtained, permission from Cambodian authorities to search
and seize the ship, and detain those aboard, which the French navy swiftly did. The
ship was then brought to the French port of Brest, a voyage of some thirteen days,
where the applicants were brought before a magistrate. In Strasbourg, they com-
plained inter alia that their detention on board the ship was unlawful, because it
had no legal basis, and because they were not promptly brought before a judge.
The case was first decided by a Chamber.132 France accepted that it had Article 1
ECHR jurisdiction, while the Court itself said the following:
. . . the Court notes, on the one hand, that it is not disputed that between 13 June 2002 (the
date on which the Winner was intercepted) and 26 June 2002 (when it arrived in Brest
harbour) the Winner and its crew were under the control of French military forces, so that
even though they were outside French territory, they were within the jurisdiction of
France for the purposes of Article 1 of the Convention. It further notes that the parties
agree that throughout that period on board the Winner—and the subsequent police
custody—the applicants were deprived of their liberty within the meaning of Article 5 of
the Convention, ‘for the purpose of bringing them before the competent legal authority’
(Article 5 } 1 (c)).
That is also the opinion of the Court, which also refers to the Rigopoulos decision cited
above.133
Note that the Chamber did not attach any importance to the supposedly ‘special’
nature of ships. Nor could it have done so, as the Winner was a Cambodian, and not
a French-flagged ship. It therefore did not base France’s jurisdiction over the
applicants on some alleged general principle of public international law, but on
131
Xhavara c. l’Italie et l’Albanie (dec.), App. No. 39473/98, 11 January 2001.
132
Medvedyev and Others v. France, App. No. 3394/03, Judgment, 10 July 2008.
133
the fact that the ship and the crew ‘were under the control of French military
forces’.134
The case was then referred to the Grand Chamber, which delivered its judgment
in 2010.135 It addressed the Article 1 issue in much more detail than the Chamber
before it. First, unlike the Chamber, which did not even mention Bankovic, the
Grand Chamber took great pains in restating its Bankovic position on the excep-
tional nature of extraterritorial application:
In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only
in exceptional cases that acts of the Contracting States performed, or producing effects,
outside their territories can constitute an exercise of jurisdiction by them for the purposes of
Article 1 of the Convention (see Banković, cited above, } 67, and Ilaşcu and Others v.
Moldova and Russia [GC], no. 48787/99, } 314, ECHR 2004-VII). In its first Loizidou
judgment (preliminary objections), for example, the Court found that bearing in mind the
object and purpose of the Convention, the responsibility of a Contracting Party might also
arise when as a consequence of military action—whether lawful or unlawful—it exercised
effective control of an area outside its national territory (see Loizidou v. Turkey (preliminary
objections) [GC], 23 March 1995, } 62, Series A no. 310). This excluded situations,
however, where—as in the Banković case—what was at issue was an instantaneous extrater-
ritorial act, as the provisions of Article 1 did not admit of a ‘cause-and-effect’ notion of
‘jurisdiction’ (Banković, } 75).
Additionally, the Court notes that other recognised instances of the extraterritorial
exercise of jurisdiction by a State include cases involving the activities of its diplomatic or
consular agents abroad and on board aircraft and ships registered in, or flying the flag of, that
State. In these specific situations, customary international law and treaty provisions have
clearly recognised and defined the extraterritorial exercise of jurisdiction by the relevant
State (see Banković, cited above, } 73).136
Note, first, the new gloss that the Grand Chamber puts on Bankovic—that it only
concerned an ‘instantaneous extraterritorial act’. With an eye on the future, this
could have been meant to distinguish a killing from detention, though not on any
principled ground that I can see. The Grand Chamber then reiterates the suppo-
sedly special nature of the jurisdiction exercised by states over ships registered in
them or flying their flag. But, of course, even if true, this is entirely irrelevant on the
facts of Medvedyev, as the ship on which the applicants were detained was not
French, but Cambodian. The Grand Chamber then moved to applying (or not)
these principles to the actual facts of Medvedyev:
In the instant case, the Court notes that a French warship, the frigate Lieutenant de vaisseau
Le Hénaff, was specially instructed by the French naval authorities to intercept the Winner,
and that the frigate sailed out of Brest harbour on that mission carrying on board the French
Navy commando unit Jaubert, a special forces team specialised in boarding vessels at sea.
When the Winner was spotted off Cape Verde on 13 June 2002, the frigate issued several
134
See also T. Thienel, ‘Oral Argument in Medvedyev v. France’, Invisible College Blog, 13 May 2008,
available at <http://invisiblecollege.weblog.leidenuniv.nl/2008/05/13/oral-argument-in-medvedyev-v-
france>.
135
Medvedyev and Others v. France [GC], App. No. 3394/03, Judgment, 29 March 2010.
136
warnings and fired warning shots, before firing directly at the merchant ship, under orders
from France's Maritime Prefect for the Atlantic. When they boarded the Winner, the French
commando team were obliged to use their weapons to defend themselves, and subsequently
kept the crew members under their exclusive guard and confined them to their cabins during
the journey to France, where they arrived on 26 June 2002. The rerouting of the Winner to
France, by decision of the French authorities, was made possible by sending a tug out of
Brest harbour to tow the ship back to the French port, escorted by another warship, the
frigate Commandant Bouan, all under orders from the Maritime Prefect and at the request of
the Brest Public Prosecutor.
That being so, the Court considers that, as this was a case of France having exercised full
and exclusive control over the Winner and its crew, at least de facto, from the time of its
interception, in a continuous and uninterrupted manner until they were tried in France, the
applicants were effectively within France's jurisdiction for the purposes of Article 1 of the
Convention (contrast Banković, cited above).137
So, as with the Chamber, what really matters is that France had ‘full and exclusive
control over the Winner and its crew, at least de facto’, not some considerations of
general international law. Note again that it is unclear whether the Court applies a
spatial model (control over the ship) or a personal one (control over the crew). And
note how, without the slightest hint of self-irony, the Court instructs us to contrast
this approach with Bankovic—as if the two were somehow related or compatible!138
Nor does it seem to have been relevant that Cambodia had consented to the seizure
of the ship—should, after all, the outcome have been any different otherwise?
With regard to aircraft, the first Strasbourg case is the Commission inadmissibili-
ty decision in Freda v. Italy,139 which concerned an applicant arrested in Costa Rica
and surrendered by Costa Rican authorities to Italian agents at an airport, who put
him on an Italian plane back to Italy. The Commission considered that the
applicant was within Italy’s jurisdiction:
Or, il est établi que le requérant a été pris en charge par des agents de la force publique
italienne et privé de liberté dans un avion militaire italien. Dès lors, le requérant, à partir du
moment de la remise, relevait effectivement de l’autorité de l’Italie, et donc de la ‘juridiction’
de ce pays, même si cette autorité s’est exercée en l’occurence à l’étranger.
The Commission relied, inter alia, on its prior decision in Cyprus v. Turkey (1975),
where it adopted the personal conception of Article 1 jurisdiction as control over
individuals by state agents, and that is exactly what it did here: ‘ . . . le requérant, à
partir du moment de la remise, relevait effectivement de l’autorité de l’Italie, et
donc de la “juridiction” de ce pays’. The Commission repeated this same reasoning
in Illich Sanchez Ramirez v. France,140 one of the two Strasbourg cases dealing with
137
Medvedyev and Others v. France [GC], App. No. 3394/03, Judgment, 29 March 2010, paras 66–7.
138
Similarly, see D. Guilfoyle, ‘ECHR Rights at Sea: Medvedyev and others v. France’, EJIL: Talk!,
19 April 2010, available at <http://www.ejiltalk.org/echr-rights-at-sea-medvedyev-and-others-v-
france/>.
139
Freda v. Italy (dec.), App. No. 8916/80, 7 October 1980.
140
Illich Sanchez Ramirez v. France (dec.), App. No. 28780/95, 24 June 1996. Note that the later
decisions concerning Carlos are correctly labelled as Ramirez Sanchez, rather than Sanchez Ramirez, but
I will use the Court’s own nomenclature.
the notorious terrorist Carlos the Jackal.141 The (very colourful) facts of the case
were these: in the early 1990s, Carlos sought refuge in Sudan as he was being
actively hunted by the intelligence agencies of several Western states. In 1994, the
Sudanese authorities made a deal with French and US intelligence services to hand
Carlos over. Unfortunately for Carlos, he was at the time scheduled to have minor
surgery in a Sudanese hospital on a varicose vein on his scrotum. After the surgery,
he was moved to a villa and assigned bodyguards. During the night of 14–15
August 1994, his own bodyguards turned against him. He was promptly tied up
and tranquilized, surrendered to French agents waiting at the airport, and was
immediately flown on a French military plane back to Paris, where he was later tried
and convicted for various offences. He complained, inter alia, that his arrest was
unlawful under Article 5 ECHR.
At what point, therefore, did Carlos come within French jurisdiction? The
Commission held as follows:
According to the applicant, he was taken into the custody of French police officers and
deprived of his liberty in a French military aeroplane. If this was indeed the case, from the
time of being handed over to those officers, the applicant was effectively under the authority,
and therefore the jurisdiction, of France, even if this authority was, in the circumstances,
being exercised abroad.
Again, what mattered was that Carlos was handed over to French officers, not that
he was put on a French-flagged plane.
Very similar is Öcalan v. Turkey, the case filed by Abdullah Öcalan, the leader of
the Workers’ Party of Kurdistan (PKK), considered by Turkey to be the arch-
terrorist. The facts of the case could be briefly summarized as follows: after having
fled Turkey to several countries, in 1999 Öcalan found himself in Nairobi, Kenya.
On 15 February 1999 he was arrested, and was flown to Turkey aboard a Turkish
military plane. It is unclear whether he was arrested with the permission and help of
(some) Kenyan authorities, or whether the Turkish forces simply engaged in an
extraterritorial abduction. Before the European Court, he complained inter alia
about the conditions and the lawfulness of his detention, and the lack of fairness of
his subsequent trial, after which he was sentenced to the death penalty. What
concerns us here, of course, is the detention—at what point was Öcalan to be
considered to have been within Turkey’s jurisdiction? Was it already in Kenya upon
his arrest, or was it aboard the Turkish aircraft, or was it when that aircraft entered
Turkish airspace?
The Court’s admissibility decision made no mention of the issue.142 During the
merits phase before the Chamber, however, Turkey raised the Court’s freshly
minted Bankovic decision to disclaim that it had jurisdiction at the time of Öcalan’s
arrest in Kenya. The Chamber rejected this argument as follows:
In the instant case, the applicant was arrested by members of the Turkish security forces
inside an aircraft in the international zone of Nairobi Airport. Directly after he had been
141
The other being Ramirez Sanchez v. France [GC], App. No. 59450/00, Judgment, 4 July 2006.
142
Öcalan v. Turkey (dec.), App. No. 46221/99, 14 December 2000.
handed over by the Kenyan officials to the Turkish officials the applicant was under effective
Turkish authority and was therefore brought within the ‘jurisdiction’ of that State for the
purposes of Article 1 of the Convention, even though in this instance Turkey exercised its
authority outside its territory. The Court considers that the circumstances of the present
case are distinguishable from those in the aforementioned Banković and Others case, notably
in that the applicant was physically forced to return to Turkey by Turkish officials and was
subject to their authority and control following his arrest and return to Turkey.143
As in the Carlos case, the Chamber clearly adopted the personal conception of
jurisdiction as the exercise of ‘effective Turkish authority’ or the subjection of the
applicant to its ‘authority and control’. Jurisdiction was most emphatically not
based on the flag of the aircraft that transported Öcalan.
As the Chamber generally decided the case in Öcalan’s favour, it was then
referred to the Grand Chamber at Turkey’s request. This time, however, Turkey
did not dispute that it had jurisdiction over Öcalan at the time of his arrest, and the
Grand Chamber merely reproduced some of the Chamber’s reasoning:
It is common ground that, directly after being handed over to the Turkish officials by the
Kenyan officials, the applicant was effectively under Turkish authority and therefore within
the ‘jurisdiction’ of that State for the purposes of Article 1 of the Convention, even though in
this instance Turkey exercised its authority outside its territory. It is true that the applicant
was physically forced to return to Turkey by Turkish officials and was under their authority
and control following his arrest and return to Turkey (see, in this respect, the aforementioned
decisions in Sánchez Ramirez and Freda, and, by converse implication, Banković and Others v.
Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001-XII).144
Note how both the Chamber and the Grand Chamber in Öcalan try to make it
seem that there is no contradiction between their holding that jurisdiction attached
because of authority and control over an individual and the Bankovic rejection of
such a conception of jurisdiction. It is unclear what exactly in the Court’s view
makes Bankovic distinguishable ‘by converse implication’. Is it because ‘authority
and control’ over an individual means physical custody of that individual, rather than
just the ability to kill that individual, and if so, why? Or is it rather that Turkey
exercised some legal power, i.e. that it was trying to arrest Öcalan on a criminal
charge that rendered him within its jurisdiction, and if so, why?
In my view, at play was simply the Court’s policy consideration that extraterri-
torial abductions, even if somewhat extraordinary, could be effectively dealt with
without much controversy or political fallout, while the use of force in an armed
conflict is a wholly different game. Be that as it may, we can see that in many of the
cases that we have now examined neither the state concerned, nor the Court or the
Commission, which should after all have minded ex officio whether the ECHR
applied and accordingly whether they had subject-matter jurisdiction, thought that
there was an Article 1 ECHR issue.145 Even in cases where Article 1 ECHR was
143
Öcalan v. Turkey, App. No. 46221/99, Judgment, 12 March 2003, para. 93.
144
Öcalan v. Turkey [GC], App. No. 46221/99, Judgment, 12 May 2005, para. 91.
145
The best recent example is Women on Waves and Others v. Portugal, App. No. 31276/05,
Judgment, 13 January 2009. The applicants were reproductive rights NGOs which hired a ship to take
considered, they simply did not turn on any supposedly ‘special’ nature of ship and
aircraft in general international law. Rather, it was the authority and control
exercised by state agents over an individual that was the basis of the state’s
jurisdiction. In other words, it was not the spatial but the personal model of
jurisdiction that was applied.
In sum, the European cases cited above most certainly do not support the
proposition that because international law recognizes that the flag state or the
state in which ships and aircraft are registered may prescribe legal rules regulating
conduct occurring on them, this means that ships and aircraft somehow present a
special justification for extending to them the spatial concept of jurisdiction in
human rights treaties. Indeed, except perhaps for Medvedyev, the cases do not even
stand in favour of a purely factual notion of jurisdiction as control over ships and
aircraft, regardless of the flag or registration. Rather, it is the control over indivi-
duals than forms the basis of state jurisdiction. No amount of post-Bankovic
reinterpretation or ‘clarification’ of these cases can change this—the cases say
what they say.
As for the case law of other institutions, recall that the Committee Against
Torture in its General Comment No. 2 stated that the ‘reference to “any territory”
in article 2, like that in articles 5, 11, 12, 13 and 16, refers to prohibited acts
committed not only on board a ship or aircraft registered by a State party, but also
during military occupation or peacekeeping operations and in such places as
embassies, military bases, detention facilities, or other areas over which a State
exercises factual or effective control’.146 The Committee here endorsed a general
theory of jurisdiction as control over places or objects, and explicitly referred to
ships and aircraft. It had the opportunity to apply this theory in the Marine I
case,147 which concerned a ship, the Marine I, which capsized in international
waters with 369 immigrants from various Asian and African countries on board. In
response to a distress call, a Spanish ship reached the Marine I and towed it to
Mauritanian waters, where it was anchored for eight days, while negotiations
between Spain and several other states were underway with the purpose of repat-
riating the migrants. They were then transported to a former fish plant in Maur-
itania, and most of them were subsequently repatriated voluntarily. The
complainants refused repatriation, and complained inter alia of the inhumane
conditions while on board the ship and in the repatriation centre.
Spain argued that it did not have jurisdiction over the complainants, and the
Committee held as follows:
them to Portugal, for the purpose of staging activities that would promote the decriminalization of
abortion in Portugal. The ship was intercepted by a Portuguese warship, which prohibited it from
entering Portuguese territorial waters. The Court unanimously found that this amounted to a violation
of the Article 10 guarantee of the freedom of expression. Thus, even though the event took place on the
high seas and the applicants never entered Portugal, the Court did not think that an Article 1 ECHR
issue arose.
146
CAT General Comment No. 2, above note 105, para. 16.
147
P.K. et al. v. Spain, Communication No. 323/2007, UN Doc. CAT/C/41/D/323/2007,
21 November 2008 (hereinafter the Marine I case).
The Committee takes note of the State party’s argument that the complainant lacks
competence to represent the alleged victims because the incidents forming the substance
of the complaint occurred outside Spanish territory. Nevertheless, the Committee recalls its
general comment No. 2, in which it states that the jurisdiction of a State party refers to any
territory in which it exercises, directly or indirectly, in whole or in part, de jure or de facto
effective control, in accordance with international law. In particular, it considers that such
jurisdiction must also include situations where a State party exercises, directly or indirectly,
de facto or de jure control over persons in detention. This interpretation of the concept
of jurisdiction is applicable in respect not only of article 2, but of all provisions of the
Convention, including article 22. In the present case, the Committee observes that the State
party maintained control over the persons on board the Marine I from the time the vessel was
rescued and throughout the identification and repatriation process that took place at
Nouadhibou. In particular, the State party exercised, by virtue of a diplomatic agreement
concluded with Mauritania, constant de facto control over the alleged victims during their
detention in Nouadhibou. Consequently, the Committee considers that the alleged victims
are subject to Spanish jurisdiction insofar as the complaint that forms the subject of the
present communication is concerned.148
Clearly, in Marine I the Committee generally conceived of jurisdiction as ‘de facto
or de jure control over persons’ or ‘constant de facto control over the alleged
victims’.149 It did not rely on jurisdiction as control over the ship itself. And this
raises a fundamental question. If we accept control over individuals as a basis for
jurisdiction, do we even need any concept of jurisdiction as control over vessels?
What good would it actually do?
Perhaps the two most practically relevant types of cases which involve ships today
are the concerted actions by a number of states against Somali pirates in the Gulf of
Aden, and state attempts to curb illegal immigration. The former raise several
potential human rights issues, from the lawfulness of the detention of any suspected
pirates, to the transfer of the captured pirates to a nearby state for trial, which could
implicate the non-refoulement obligations of the capturing state, for instance with
regard to the risk of inhumane treatment in the receiving state or the lack of
adequate fair trial guarantees.150
When it comes to illegal immigration, we have already seen one example in the
Marine I case examined above. Attempts by migrants from, say, North Africa to
reach Europe, or those from Cuba to reach the United States, frequently involve the
use of ships and the interdiction of these ships by the state that the migrants are
attempting to reach. It has been widely reported, for example, that Italy chooses to
interdict migrant ships before they reach Italian territorial waters and return them
to their harbour of origin, rather than assess the claims of the migrants to asylum on
an individual basis.151 This again, of course, raises questions about the lawfulness of
148
Ibid., para. 8.2.
149
See also K. Wouters and M. Den Heijer, ‘The Marine I Case: A Comment’, (2009) 22
International Journal of Refugee Law 1, 8–11.
150
For an excellent overview of the various issues, as well as for factual background, see
D. Guilfoyle, ‘Counter-Piracy Law Enforcement and Human Rights’, (2010) 59 ICLQ 141.
151
See, e.g., Wouters and Den Heijer, above note 149, at 9.
detention, as well as non-refoulement.152 As of the time of writing, one such case,

Hirsi and others v. Italy,153 is pending before the European Court.154
Turning back to the question whether the spatial conception of jurisdiction as
control over ships and aircraft would have any use if the personal conception of
jurisdiction as control over individuals is accepted, we could only say that such
usefulness would be very limited, if it existed at all. In most cases, it would be
impossible to distinguish as a matter of fact between the control over a ship and the
control over individuals on it. To the extent that a personal notion of jurisdiction
would govern, the spatial notion would be redundant.
If, however, the personal notion is rejected, either because it is limited artificially,
or because it is at odds with the text of the relevant treaty (as is arguably the case
with the CAT), or indeed, as is my view, because it is impossible to maintain a
personal notion of jurisdiction which would not collapse into the absence of any
jurisdictional threshold at all, then there could be some use to a concept of
jurisdiction as control over objects, particularly with regard to delineating the
applicability of positive obligations. What if, say, a murder occurs on a British
Airways flight from London to France, either while the UK-registered aircraft was
in international airspace, or indeed just after the plane had touched the tarmac at
Charles de Gaulle. Which of the two states has the Article 2 ECHR obligation to
investigate the crime? Similarly, what of a scenario where one shipmate kills another
on a private ship registered in the UK, and the murder takes place on the high seas?
Would the UK have an Article 2 obligation to investigate?
In both cases there is no direct control of a state over the ship or aircraft. All we
have is the fact that the vessel is registered in a state, which certainly grants the state
concerned the right in customary law to prescribe offences aboard these vessels and
enforce these laws, as well as the obligation to do so under certain treaties,155 but it
is not immediately apparent that this would constitute jurisdiction in the spatial
sense within the meaning of human rights treaties. In the cases we have examined,
that notion of jurisdiction has been predicated on factual control, rather than
purely formal criteria such as registration. If we take Medvedyev as an example, it
152
On extraterritorial refoulement in the context of refugee law, see J. Hathaway, The Rights of
Refugees under International Law (Cambridge University Press, 2005), 335–42, as well as UNHCR,
Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, available at <http://
www.unhcr.org/refworld/docid/45f17a1a4.html>.
153
App. No. 27765/09.
154
Italy has also been criticized by the CPT for its ‘push-back’ of migrants as constituting a
violation of its non-refoulement obligations, even if it took place on ships outside Italy’s territorial sea—
see Report to the Italian Government, CPT/Inf (2010) 14, 28 April 2010, esp. para. 29. In that regard,
the CPT seems to have adopted a personal conception of state jurisdiction: ‘Italy is bound by the
principle of non-refoulement wherever it exercises its jurisdiction, which includes via its personnel and
vessels engaged in border protection or rescue at sea, even when operating outside its territory.
Moreover, all persons coming within Italy’s jurisdiction should be afforded an appropriate opportunity
and facilities to seek international protection.’ Ibid., para. 49.
155
See, e.g., Convention for the Suppression of Unlawful Seizure of Aircraft [Hijacking Conven-
tion], 860 UNTS 105, entered into force 14 October 1971, Art. 4(1).
is the fact that France controlled the individuals aboard the ship that created its
jurisdiction, even if the individuals were located on a Cambodian-flagged ship.
If the killing takes place within the territorial sea or the airspace of a country
(over which it maintains effective control, or is presumed to do so), whether it is the
flag state or a third state, then we could indeed say that the killing took place within
that state’s jurisdiction. If, on the other hand, the killing takes place on the high seas
or in international airspace, then it is to me far from obvious that the mere fact of
formal registration, absent any tangible degree of control, should matter at all.
Imagine, for example, if the aircraft in question was registered in one state, but was
leased to an airline operating in another state half the world away. Could the state of
registration still be said to have an obligation to secure the human rights of all
persons aboard that airplane?
If, on the other hand, it is only purely factual control over ships and aircraft that
should matter—as is the case with territory and places—then we would need to
define some of the contours of that control. First, it scarcely needs pointing out that
control over such an object can be effected with relative ease by any state. Secondly,
the simplest case of such control would be where the state’s soldiers actually board a
vessel, or control it directly in a similar fashion. Thirdly, even so, control over these
objects need not necessarily be so direct. If, say, a migrant ship was interdicted by a
state warship, which has every ability to blow it out of the water, or if an aircraft was
intercepted by military jets, this would amount to effective control just as if the ship
or aircraft was actually boarded by troops.156
In short, precisely because control over such objects is relatively easy to achieve, it
is the potential of such control, rather than the immediate exercise of control in any
given situation, that could be said to give rise to state jurisdiction over a vessel.
E. Outlook
Ultimately, what are we to make of the spatial model of jurisdiction? Its application
is certainly the clearest when it comes to effective state control over relatively large
portions or areas of territory, as in Loizidou. Though of course the facts on the
ground may vary, these situations resemble most the level of control, and accord-
ingly the capacity to either violate or protect human rights, that the state normally
has over its own territory. This model also comports the best with the territorial
sense of the word ‘jurisdiction’ as it is used in state practice. As a matter of policy, its
adoption allows us to extend human rights protection to those extraterritorial
situations where it is most likely that human rights will be violated and yet could
be effectively protected, primarily belligerent occupation.
But the main drawback of the spatial model is precisely that, as a matter of
policy, its rigid application will allow numerous extraterritorial cases to slip through
and be beyond the scope of application of human rights treaties. There is a
profound feeling of injustice and arbitrariness, as measured against the benchmark
156
See also Guilfoyle, above note 150, at 155. Similarly, see the Women on Waves case cited in note
145 above.
of universality, in allowing states to avoid human rights constraints in extraterritor-

ial situations over which they still have complete control. Why should, for example,
the US be free to torture persons detained in CIA black sites located in territories
under the jurisdiction of other states, when the US is still in control of the acts of its
own agents and in control of the individuals subjected to its authority?
This is why the pure or default version of the spatial model, that of effective
overall control of (large) areas of territory, needs to be mitigated, and there are
several ways of doing so. First, by applying the spatial model to ever smaller areas,
with an ever more tenuous degree of control, so that the ‘control of an area’ test
ultimately covers control over places and objects. Secondly, by in some cases
discarding the spatial model and opting for the personal model of jurisdiction as
control over individuals. There is also a third option—that of discarding the
jurisdiction threshold altogether with respect to some obligations—which I per-
sonally favour, and which I will turn to shortly.
From the Strasbourg perspective, the virtue of the first approach is that it allows
the Court to avoid using the second one. This, in turn, allows it to maintain some
rigour to the Article 1 jurisdiction threshold, which would be in danger of
collapsing if jurisdiction meant factual control over individuals pure and simple.
Even so, however, because the spatial model can only be stretched so far, the Court
is, due to the normative pull of universality, in many cases unable to resist
conceptualizing jurisdiction as control over individuals, thereby creating a tension
with Bankovic. As we have seen, the embassy, ship, and aircraft cases that the Grand
Chamber in Bankovic rationalized on the basis of some supposedly special char-
acteristics of these objects in international law, actually turned on considerations of
factual control by state agents over individuals. Even in Al-Saadoon, which can be
read as embracing a general theory of jurisdiction as control over places, the Court
vacillated between control over places and control over individuals as grounds of
jurisdiction.157
As we have also seen above, it is impossible to clearly define the geographical
space that the spatial model of jurisdiction refers to. The more we descend from
large areas of territory to places and objects, the more artificial it seems to apply the
spatial model at all: it simply collapses to control over individuals, rather than
control over territory, however minuscule in size. And because this is so, even if
stretched to the utmost extent, the spatial model of jurisdiction will allow numer-
ous extraterritorial situations to slip through and be outside the reach of human
rights protection. This, in turn, would in many cases simply be morally intolerable,
unjustifiable from the standpoint of universality, and inexcusable by any apparent
consideration of effectiveness.
Consider, for example, the assassination of Alexander Litvinenko in London in
2006. Assume that it was, in fact, a Russian agent who killed Mr Litvinenko—say if
a KGB/FSB operative openly admitted to the crime. It would nonetheless be
impossible to say under any conception of the spatial model of jurisdiction that
157
See also Guilfoyle, above note 150, at 154.
this killing violated Russia’s ECHR obligations, which it would have done if it had
taken place on Russian soil. It would surely be absurd to argue that Russia had
control over the Japanese restaurant in London where Litvinenko was fed the
radioactive sushi, and that this somehow established its jurisdiction. It is only if
the spatial model was discarded that we could bring Litvinenko within the ECHR’s
reach. This could be done either by adopting a personal model of jurisdiction as
control over Litvinenko himself, or by saying that the jurisdiction threshold should
not apply at all to negative obligations, as would be my preference. Or, one could try
distinguishing Litvinenko’s case from Bankovic on the less than principled ground that
the killing took place within the ECHR’s espace juridique.158
The same would go, say, for the use of drones by the US in Pakistan or
Afghanistan. Extraterritorial torture in a place outside the state’s control—for
example, if a US agent was to interrogate a detainee in a Pakistani prison—
would also slip through the cracks of the spatial model. So would the various
complicity scenarios, as with the US or the UK providing intelligence and even the
questions to the Pakistani interrogators.159 Various instances of extraterritorial law
enforcement, ranging from searches and seizures to abductions, would likewise be
out, at least until the individual concerned is brought into a place or an object
under the state’s control,160 as would transboundary environmental harm, as in the
example of Colombia’s aerial herbicide spraying having effects in Ecuador which we
discussed above.161
This would be the price to pay were the spatial model, however tweaked and
adjusted, to be applied exclusively. None of these individuals would be entitled to
any human rights protection. And, of course, what makes this result morally
intolerable is that the states in question in all of these cases would still have total
control over the acts of their own agents. There would be nothing preventing them
from complying with their human rights obligations, if such obligations were to
exist. As I have argued above, considerations of effectiveness would need to be taken
into account when applying these obligations, so that the possibly extraordinary
circumstances of extraterritorial application do not produce unrealistic restrictions
on states.162 But should effectiveness truly mean that a state is free to kill and
torture outside its borders, and if so why?
158
159
See, in that regard, R. (Hassan) v. Secretary of State for Defence [2009] EWHC 309 (Admin),
where the claimants were the family of an individual detained in the initial stages of the invasion by UK
forces in Iraq, who transferred him to the custody of US armed forces pursuant to a memorandum of
understanding, under which the UK remained the detaining power under the Third Geneva Conven-
tion for the individual in question. Applying the spatial model of jurisdiction, the High Court found
that, as the detainee was held on a US military base, he was not within the UK’s jurisdiction. As the
detaining power, however, and on the basis of its memorandum of understanding with the US, the UK
did retain a legal authority over the detainee, which could have sufficed to bring him within its
jurisdiction under the personal model. For a critique of Hassan in that vein, see H. King, ‘Unravelling
the Extraterritorial Riddle: An Analysis of R. (Hassan) v. Secretary of State for Defence’, (2009) 7 JICJ
633.
160
See Section 1.E.
161
See Section 1.F.
162
No good answer to this question can be given from the standpoint of universal-
ity. This is why the spatial model has in practice frequently been complemented by
a personal one, to which I will now turn.
3. The Personal Model: Jurisdiction as Authority

and Control over Individuals
A. Introduction
Conceiving of state jurisdiction within the meaning of human rights treaties in
personal, rather than spatial terms, would appear to solve most of the policy
problems with the spatial model that we have seen above. This is indeed why the
personal model of jurisdiction as state authority and control over individuals has
been advocated in the literature,163 and why it has been adopted by various courts
or quasi-judicial bodies in numerous cases, to which I will turn below (and many of
which we have already seen). Saying, however, that a state has jurisdiction over an
individual whenever it controls him poses its own set of problems.
First, it is entirely doubtful that the personal model is reconcilable with the text
of at least some of the relevant treaties. The CAT, for instance, specifically refers to
jurisdiction over territory, rather than individuals, and no amount of interpretation
can make these words go away.
More fundamentally, even if the personal model presented a legitimate option in
principle, what would actually count as state control over an individual? Just as we
had to examine what counts as control over territory, so we would need to answer
the same question here. However, it is hard to say whether it is possible to give any
meaningful answer to that question. First, we could adopt the broadest possible
definition of control, and consequently of jurisdiction over a person—a state would
have such control whenever it had the ability to substantively violate an individual’s
rights. Yet if we did so, the personal model of jurisdiction would essentially
collapse. It would serve no useful purpose as a threshold for the application of a
human rights treaty, since the treaty would apply whenever the state could actually
infringe it.164 Secondly, to prevent this collapse we could try limiting the notion of
personal control, for instance by saying that only physical custody over an individ-
ual could satisfy the threshold. As we will see, however, such a limitation is not
possible by reference to any non-arbitrary criterion.
163
Most ably and prominently by R. Lawson, ‘Life after Bankovic: On the Extraterritorial Application
of the European Convention on Human Rights’, in Coomans and Kamminga 83.
164
Note that this would not mean, as argued by O’Boyle, that the concept of jurisdiction would be
conflated with that of attribution, in other words that the inquiries under Art. 2(a) and Art. 2(b) ILC
ASR would collapse into each other. Rather, the obligation whose violation is being attributed would
not be territorially limited, as is the case for example with the Geneva Conventions. See M. O’Boyle,
‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life
After Bankovic” ’, in Coomans and Kamminga 125, and Chapter II, Section 3 above.
In Bankovic, the European Court realized that the personal model cannot be
limited, and this is precisely why it rejected it, at least in its more expansive form:
[The applicants] claim that the positive obligation under Article 1 extends to securing the
Convention rights in a manner proportionate to the level of control exercised in any given
extra-territorial situation. The Governments contend that this amounts to a ‘cause-and-
effect’ notion of jurisdiction not contemplated by or appropriate to Article 1 of the
Convention. The Court considers that the applicants’ submission is tantamount to arguing
that anyone adversely affected by an act imputable to a Contracting State, wherever in the
world that act may have been committed or its consequences felt, is thereby brought within
the jurisdiction of that State for the purpose of Article 1 of the Convention.
The Court is inclined to agree with the Governments’ submission that the text of Article 1
does not accommodate such an approach to ‘jurisdiction’. Admittedly, the applicants accept
that jurisdiction, and any consequent State Convention responsibility, would be limited in
the circumstances to the commission and consequences of that particular act. However, the
Court is of the view that the wording of Article 1 does not provide any support for the
applicants’ suggestion that the positive obligation in Article 1 to secure ‘the rights and
freedoms defined in Section I of this Convention’ can be divided and tailored in accordance
with the particular circumstances of the extra-territorial act in question and, it considers its
view in this respect supported by the text of Article 19 of the Convention. Indeed the
applicants’ approach does not explain the application of the words ‘within their jurisdiction’
in Article 1 and it even goes so far as to render those words superfluous and devoid of any
purpose. Had the drafters of the Convention wished to ensure jurisdiction as extensive as that
advocated by the applicants, they could have adopted a text the same as or similar to the
contemporaneous Articles 1 of the four Geneva Conventions of 1949 (see } 25 above).
Furthermore, the applicants’ notion of jurisdiction equates the determination of whether
an individual falls within the jurisdiction of a Contracting State with the question of
whether that person can be considered to be a victim of a violation of rights guaranteed
by the Convention. These are separate and distinct admissibility conditions, each of which
has to be satisfied in the afore-mentioned order, before an individual can invoke the
Convention provisions against a Contracting State.165
Note that the Court here does not explicitly address the applicants’ reliance on prior
case law which indicated that authority and control over individuals would lead to
jurisdiction—presumably because it did not wish to overrule prior jurisprudence,
thus maintaining the pretence that Bankovic presented no departure from it.
The Court does, however, quite clearly reject the idea that anyone whose rights
would substantively be violated by a state’s extraterritorial act would be within its
jurisdiction.
That said, as we will see, the personal conception of jurisdiction has not
remained absent from Strasbourg case law, either before or since Bankovic, even
if the Court’s position on it is entirely, and one could say purposefully, unclear.
Other human rights institutions, however, have been much less cautious. And in all
fairness to the European Court, it must be said that this is not because these other
bodies somehow have a better grasp of the whole problématique of extraterritorial
application. Rather, it is because the stakes are higher in Strasbourg, because its
165
Bankovic, para. 75.
judgments are not only binding formally (which of course is not the case with UN
treaty bodies), but, more importantly, have attained a high degree of authority and
compliance in practice, that it is much harder for Strasbourg to throw caution to
the wind. Let us now take a closer look at the case law.
B. Case law
1. UN treaty bodies
I will start off by examining the jurisprudence of UN treaty bodies. Although it is
generally not as rich as that of Strasbourg, nor chronologically the first, it is precisely
these bodies that have been the staunchest proponents of a personal conception of
jurisdiction.
The Human Rights Committee first addressed the issue of the extraterritorial
application of the ICCPR in two nearly identical cases, Lopez Burgos v. Uruguay166
and Celiberti de Casariego v. Uruguay.167 The former concerned an individual
resident in Argentina who was kidnapped in Argentina by Uruguayan security
forces, held in incommunicado detention for a period of time in Argentina, and
then transferred to Uruguay. The second applicant suffered essentially the same
fate, except in Brazil rather than Argentina. Both of the applicants complained of
abduction and unlawful detention. In Lopez Burgos, the Committee held as follows:
The Human Rights Committee further observes that although the arrest and initial
detention and mistreatment of Lopez Burgos allegedly took place on foreign territory, the
Committee is not barred either by virtue of article 1 of the Optional Protocol (‘ . . . in-
dividuals subject to its jurisdiction . . . ’) or by virtue of article 2(1) of the Covenant
(‘ . . . individual within its territory and subject to its jurisdiction . . . ’) from considering
these allegations, together with the claim of subsequent abduction into Uruguayan territory,
inasmuch as these acts were perpetrated by Uruguayan agents acting on foreign soil.
The reference in article 1 of the Optional Protocol to ‘individuals subject to its jurisdic-
tion’ does not affect the above conclusion because the reference in that article is not to the
place where the violation occurred, but rather to the relationship between the individual and
the State in relation to a violation of any of the rights set forth in the Covenant, wherever
they occurred.
Article 2(1) of the Covenant places an obligation upon a State party to respect and to
ensure rights ‘to all individuals within its territory and subject to its jurisdiction’, but does
not imply that the State party concerned cannot be held accountable for violations of rights
under the Covenant which its agents commit upon the territory of another State, whether
with the acquiescence of the Government of that State or in opposition to it. According to
article 5 (1) of the Covenant:
‘1. Nothing in the present Covenant may be interpreted as implying for any State, group
or person any right to engage in any activity or perform any act aimed at the
166
Lopez Burgos v. Uruguay, Communication No. R.12/52, UN Doc. Supp. No. 40 (A/36/40) at
176 (1981).
167
Celiberti de Casariego v. Uruguay, Communication No. 56/1979, UN Doc. CCPR/C/OP/1 at
92 (1984).
destruction of any of the rights and freedoms recognized herein or at their limitation
to a greater extent than is provided for in the present Covenant.’
In line with this, it would be unconscionable to so interpret the responsibility under article
2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the
territory of another State, which violations it could not perpetrate on its own territory.168
The Committee adopted identical views in Celiberti.169 Note, first, how the
Committee conceives of state jurisdiction in purely personal terms, as a reference
‘not to the place where the violation occurred, but rather to the relationship
between the individual and the State in relation to a violation of any of the rights
set forth in the Covenant, wherever they occurred’. Of course, the Committee
somehow had to do away with the explicit mention of territory in Article 2(1)
ICCPR, which it did by making an unpersuasive reference to Article 5(1), as well
pointed out by Christian Tomuschat in his separate opinion:
I concur in the views expressed by the majority. None the less, the arguments set out in
paragraph 12 for affirming the applicability of the Covenant also with regard to those events
which have taken place outside Uruguay need to be clarified and expanded. Indeed, the first
sentence in paragraph 12.3, according to which article 2(1) of the Covenant does not imply
that a State party ‘cannot be held accountable for violations of rights under the Covenant
which its agents commit upon the territory of another State’, is too broadly framed and
might therefore give rise to misleading conclusions. In principle, the scope of application of
the Covenant is not susceptible to being extended by reference to article 5, a provision
designed to cover instances where formally rules under the Covenant seem to legitimize
actions which substantially run counter to its purposes and general spirit. Thus, Govern-
ments may never use the limitation clauses supplementing the protected rights and freedoms
to such an extent that the very substance of those rights and freedoms would be annihilated;
individuals are legally barred from availing themselves of the same rights and freedoms with
a view to overthrowing the regime of the rule of law which constitutes the basic philosophy
of the Covenant. In the present case, however, the Covenant does not even provide the
pretext for a ‘right’ to perpetrate the criminal acts which, according to the Committee’s
conviction, have been perpetrated by the Uruguayan authorities.
To construe the words ‘within its territory’ pursuant to their strict literal meaning as
excluding any responsibility for conduct occurring beyond the national boundaries would,
however, lead to utterly absurd results. The formula was intended to take care of objective
difficulties which might impede the implementation of the Covenant in specific situations.
Thus, a State party is normally unable to ensure the effective enjoyment of the rights under
the Covenant to its citizens abroad, having at its disposal only the tools of diplomatic
protection with their limited potential. Instances of occupation of foreign territory offer
another example of situations which the drafters of the Covenant had in mind when they
confined the obligation of States parties to their own territory. All these factual patterns have
in common, however, that they provide plausible grounds for denying the protection of the
Covenant. It may be concluded, therefore, that it was the intention of the drafters, whose
sovereign decision cannot be challenged, to restrict the territorial scope of the Covenant in
view of such situations where enforcing the Covenant would be likely to encounter
exceptional obstacles. Never was it envisaged, however, to grant States parties unfettered
168 169
Lopez Burgos, paras 12.1–12.3. Celiberti, paras 10.1–10.3.
discretionary power to carry out wilful and deliberate attacks against the freedom and
personal integrity against their citizens living abroad. Consequently, despite the wording
of article 2(1), the events which took place outside Uruguay come within the purview of the
Covenant.
The somewhat peculiar reference to Article 5(1) aside,170 note how both the
majority and Professor Tomuschat rely on universality in making their argument
in favour of extraterritorial application. First, the Committee states that the reason
why the ICCPR should apply to Uruguayan actions in Argentina is because ‘it
would be unconscionable to so interpret the responsibility under article 2 of the
Covenant as to permit a State party to perpetrate violations of the Covenant on the
territory of another State, which violations it could not perpetrate on its own
territory’. The word ‘unconscionable’ is key—it represents the value judgment
that the Committee is making from the standpoint of universality. And so is
Tomuschat, when he says that construing ‘the words “within its territory” pursuant
to their strict literal meaning as excluding any responsibility for conduct occurring
beyond the national boundaries would, however, lead to utterly absurd results’.
Again, it is in ‘utterly absurd results’ that we have the universality-speak. This is not
an assessment made from pure logic, reason, or law, but rests on the moral and
philosophical foundation of human rights—that all human beings should enjoy
them by virtue of being human, and that a good reason must be given for denying
them.171
Secondly, note how effectiveness emerges in Tomuschat’s arguably more far-
sighted opinion. He thus notes that the ICCPR jurisdiction clause has a specific
purpose of taking ‘care of objective difficulties which might impede the implemen-
tation of the Covenant in specific situations’, difficulties which make a state
‘normally unable to ensure the effective enjoyment of the rights under the Cove-
nant to its citizens abroad’. And as no such difficulties existed here, since Uruguay
was in perfect control of the conduct of its own agents in Argentina, the ICCPR
should apply extraterritorially.
Note also how Tomuschat’s opinion appears questionable in two elements, at
least with the benefit of almost thirty years of hindsight. Firstly, he says that one
situation in which there could be ‘plausible grounds for denying the protection of
the Covenant’ is military occupation—precisely the one situation which today
most of us would consider as undeniably requiring extraterritorial application,
per Loizidou and the ICJ’s Wall and Congo v. Uganda decisions. Secondly,
Tomuschat relies somewhat problematically on the nationality of the victim when
he says that it was never envisaged by the states parties that they would have a
‘discretionary power to carry out wilful and deliberate attacks against the freedom
and personal integrity against their citizens living abroad’. This, I hope, was
nothing more than a rhetorical point—the result would surely have been no
170
See also M. Nowak, CCPR Commentary (Engel, 2nd revised edn, 2005), at 860.
171
See also Chapter III, Section 7 above.
different had Mr Lopez Burgos been an Argentinian, rather than a Uruguayan
national.172
The Human Rights Committee had few other individual cases dealing with
extraterritorial application after Lopez Burgos and Celiberti.173 As we have seen, on
its consideration of the reports of states parties to the ICCPR it has also affirmed the
validity of the spatial model of jurisdiction.174 Its position, however, remains the
same, has solidified due to events surrounding the ‘war on terror’, and is now stated
in its General Comment No. 31:
States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant
rights to all persons who may be within their territory and to all persons subject to their
jurisdiction. This means that a State Party must respect and ensure the rights laid down in
the Covenant to anyone within the power or effective control of that State Party, even if not
situated within the territory of the State Party. As indicated in General Comment 15 adopted
at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to
citizens of States Parties but must also be available to all individuals, regardless of nationality
or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who
may find themselves in the territory or subject to the jurisdiction of the State Party. This
principle also applies to those within the power or effective control of the forces of a State Party
acting outside its territory, regardless of the circumstances in which such power or effective
control was obtained, such as forces constituting a national contingent of a State Party
assigned to an international peace-keeping or peace-enforcement operation.175
This paragraph is notable for several reasons. First, the Committee now openly
espouses the so-called disjunctive–conjunctive interpretation of the jurisdiction
clause of Article 2(1) ICCPR—first argued for by Thomas Buergenthal176—by
saying that the words ‘within its territory and subject to its jurisdiction’ mean that
ICCPR rights must be respected and ensured to all persons who may be within the
state’s territory and to all persons subject to its jurisdiction. Secondly, the Commit-
tee again endorses a personal notion of jurisdiction as ‘power or effective control’
over an individual, regardless of the place where such control is exercised.177
Thirdly, the Committee’s final remark that even state forces in a ‘national contingent
172
Similarly, see M. Scheinin, ‘Extraterritorial Effect of the International Covenant on Civil and
Political Rights’, in Coomans and Kamminga 73, at 75, n. 7; Lawson, above note 163, at 94.
173
One exception is the so-called passport cases, dealing with the refusal of a state’s diplomatic or
consular mission abroad to issue a passport to the state’s citizen—see, e.g., Vidal Martins v. Uruguay,
Communication No. R.13/57, U.N. Doc. Supp. No. 40 (A/37/40) at 157 (1982), as well as notes 260
and 261 below and accompanying text. For commentary, see Nowak, above note 170, at 861.
174
See above note 28.
175
Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation
on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 10 (emphasis
added).
176
T. Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’, in
L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia
University Press, 1981), at 72–91. See also T. Meron, ‘Extraterritoriality of Human Rights Treaties,’
(1995) 89 AJIL 78, as well as the works cited in Chapter III, above note 11.
177
The Committee has continued doing so in its examination of state party reports—see, e.g.,
Concluding Observations of the Human Rights Committee—United Kingdom, UN Doc. CCPR/C/
GBR/CO/6, 18 July 2008, para. 14 (requesting of the UK to ‘state clearly that the Covenant applies to
all individuals who are subject to its jurisdiction and control’).
of a State Party assigned to an international peace-keeping or peace-enforcement

operation’ have ICCPR obligations may be overbroad, in that it neglects potentially
very complex issues of attribution. In cases in which the conduct of such a contingent
is actually not attributable to the sending state, there could also be no violation of the
ICCPR by that state arising from that particular conduct.178 This issue is, of course,
beyond the scope of the present study.
Other UN treaty bodies have largely followed the Human Rights Committee’s
lead with regard to the personal model. We have already seen that the Committee
Against Torture interprets the CAT jurisdiction clauses referring to a state’s obliga-
tions in ‘any territory under its jurisdiction’ as not only extending to ‘all areas where
the State party exercises, directly or indirectly, in whole or in part, de jure or de facto
effective control’, as well as places or facilities under such control, i.e. within the
spatial model, but also that it has adopted a variant of the personal model:
The Committee considers that the scope of ‘territory’ under article 2 must also include
situations where a State party exercises, directly or indirectly, de facto or de jure control over
persons in detention.179
As a purely textual matter, this interpretation makes very little sense. In fact, it is
directly contrary to the text of the treaty; to say that the concept of ‘territory’
includes control over persons is simply mind-boggling. The Committee, of course,
had sound reasons of policy to adopt the personal model. While the spatial model
could be adapted to cover places rather than large areas of territory, so that, for
instance, a Guantanamo detainee would be protected by the CAT since he was, in
fact, in an area or place under US control, even the spatial model can only be
stretched so far. At the same time, it is quite possible for states to conduct activities
that would normally be contrary to the CAT but to do so in places or areas outside
their control—this particularly goes for various complicity scenarios. And it is here,
to fill this gap, that the personal model becomes especially useful.180 Otherwise, the
activities of, say, a UK agent complicit in the inhumane treatment of a person
actually detained by the US or Pakistan, or even interrogating the prisoner himself,
would simply fall outside the CAT’s scope. Perhaps the Committee’s purpose
would have been better served by interpreting the CAT as containing an array of
implicit negative obligations unlimited by the jurisdiction clauses, an alternative to
which I will turn in more detail below. Be that as it may, I cannot see how the
Committee’s interpretation of the word ‘territory’ to accommodate the personal
model can withstand serious scrutiny.
178
See also Section 2.C.4 above, as well as Chapter II, Section 3.D.
179
Committee Against Torture, General Comment No. 2, UN Doc. CAT/C/GC/2, 24 January
2008, para. 16.
180
Indeed, the Committee seems to have adopted the personal model precisely because of
Guantanamo—see Committee Against Torture, Conclusions and Recommendations: United States,
UN Doc. CAT/C/USA/CO/2, 25 July 2006, para. 15: ‘The State party should recognize and ensure
that the provisions of the Convention expressed as applicable to “territory under the State party’s
jurisdiction” apply to, and are fully enjoyed, by all persons under the effective control of its authorities, of
whichever type, wherever located in the world’ (emphasis added).
2. Inter-American institutions
The Inter-American Commission of Human Rights has also championed the
personal model, though the Court itself has not yet had the opportunity to rule
on matters of extraterritorial application. The Commission’s mandate is not only to
interpret the American Convention on Human Rights, a binding international
treaty, but also the world’s first international human rights instrument, the Ameri-
can Declaration on the Rights and Duties of Man. The Declaration is itself not a
treaty, but it imposes obligations upon American states indirectly, through their
membership in the Organization of American States (OAS). Crucially, while
Article 1(1) ACHR contains a jurisdiction clause almost identical to that in the
ECHR, the Declaration contains no such clause, nor any other explicit limitation of
its territorial scope.181
The Commission’s first case explicitly dealing with the extraterritorial applica-
tion of the ACHR was Saldaño v. Argentina,182 filed against Argentina by an
Argentinian national incarcerated on death row in the United States, who claimed
that Argentina had failed to fulfil its positive obligation to protect him. Relying,
inter alia, on the European Commission’s decision in Cyprus v. Turkey, which first
espoused the personal model of jurisdiction, the Inter-American Commission
considered that ‘a state party to the American Convention may be responsible
under certain circumstances for the acts and omissions of its agents which pro-
duce effects or are undertaken outside that state’s own territory’.183 However,
because the conduct complained of was essentially that of the United States, not
Argentina, and because ‘the petitioner has not adduced any proof whatsoever that
tends to establish that the Argentine State has in any way exercised its authority or
control either over the person of Mr Saldaño, prior or subsequent to his arrest in the
United States, or over the local officials in the United States involved in the
criminal proceeding taken against him’, the petitioner was not within Argentinian
jurisdiction.184 The mere bond of Argentinian nationality did not suffice.185
In Saldaño the Commission thus clearly adopted the personal model with regard
to the ACHR. It did the same several months later with regard to the American
Declaration, in Coard v. United States, a case dealing with the acts of US military
forces in Grenada:
While the extraterritorial application of the American Declaration has not been placed at
issue by the parties, the Commission finds it pertinent to note that, under certain circum-
stances, the exercise of its jurisdiction over acts with an extraterritorial locus will not only be
consistent with but required by the norms which pertain. The fundamental rights of the
individual are proclaimed in the Americas on the basis of the principles of equality and non-
discrimination—‘without distinction as to race, nationality, creed or sex.’ Given that
181
See generally C. Cerna, ‘Extraterritorial Application of the Human Rights Instruments of the
Inter-American System’, in Coomans and Kamminga 141.
182
Saldaño v. Argentina, Report No. 38/99, Annual Report of the IACHR 1998, esp. paras 15–20.
183
Ibid., para. 17.
184
Ibid., para. 21 (emphasis added).
185
individual rights inhere simply by virtue of a person's humanity, each American State is
obliged to uphold the protected rights of any person subject to its jurisdiction. While this most
commonly refers to persons within a state's territory, it may, under given circumstances,
refer to conduct with an extraterritorial locus where the person concerned is present in the
territory of one state, but subject to the control of another state—usually through the acts of the
latter’s agents abroad. In principle, the inquiry turns not on the presumed victim's nationality
or presence within a particular geographic area, but on whether, under the specific circum-
stances, the State observed the rights of a person subject to its authority and control.186
Note how the Commission read into the American Declaration a state jurisdiction
requirement that it does not actually contain, only to then adopt the personal
model of jurisdiction as authority and control over individuals. The reason it gave
for doing so was that ‘individual rights inhere simply by virtue of a person's
humanity’, i.e. universality. The Commission has maintained this approach ever
since,187 for example in a number of (practically rather fruitless) cases against the
United States dealing with Guantanamo.188
3. Early Strasbourg case law

Though in recent years it has been the UN treaty bodies and the Inter-American
Commission that have most ardently championed the personal model of jurisdic-
tion, it was in fact first devised by the European Commission of Human Rights. As
we have seen, in its first decision on northern Cyprus,189 the Commission opined
that
[i]n Art. 1 of the Convention, the High Contracting Parties undertake to secure the rights
and freedoms defined in Section 1 to everyone ‘within their jurisdiction’ (in the French text:
‘relevant de leur juridiction’). The Commission finds that this term is not, as submitted by
the respondent Government, equivalent to or limited to the national territory of the High
Contracting Party concerned. It is clear from the language, in particular of the French text,
and the object of this Article, and from the purpose of the Convention as a whole, that the
High Contracting Parties are bound to secure the said rights and freedoms to all persons
under their actual authority and responsibility, whether that authority is exercised within their
own territory or abroad. The Commission refers in this respect to its decision on the
admissibility of Application No. 1611/62—X. v Federal Republic of Germany—Yearbook
of the European Convention on Human Rights, Vol. 8, pp. 158–169 (at pp. 168–169).
186
Coard et al. v. United States, Case No. 10.951, Report No. 109/99, Annual Report of the
IACHR 1999, para. 37 (emphasis added).
187
See Armando Alejandre Jr and Others v. Cuba (‘Brothers to the Rescue’), Case No. 11.589, Report
No. 86/99, 29 September 1999, para. 23. See further J. Cerone, ‘The Application of Regional Human
Rights Law Beyond Regional Frontiers: The Inter-American Commission on Human Rights and US
Activities in Iraq’, ASIL Insights, 25 October 2005, available at <http://www.asil.org/insights051025.
cfm>.
188
See, e.g., Decision on Request for Precautionary Measures (Detainees at Guantánamo Bay),
12 March 2002, (2002) 41 ILM 532. For more extensive discussion, see Cerna, above note 181, at 159 et seq;
Gondek, at 217–19.
189
aircrafts, are partly within its jurisdiction wherever they may be, and that authorised agents of
a State, including diplomatic and consular agents and armed forces, not only remain under its
jurisdiction when abroad but bring any other persons or property ‘within the jurisdiction’ of that
State, to the extent that they exercise authority over such persons or property. Insofar as, by their
acts or omissions, they affect such persons or property, the responsibility of the State is
engaged.190
The Commission has affirmed the personal model time and again, and did not limit
its scope either to specific places or objects, such as embassies, ships, or aircraft, or
to specific agents, such as diplomats, but applied it to all state agents.191 Again, all
of the cases that the European Court in Bankovic tried to rationalize (or even
ignore) as supposedly being exceptional, tied to the ‘special’ nature of either the
agents or the premises on which they acted, were decided on the basis of a general
conception of jurisdiction as state authority and control over individuals. The
Commission’s approach to Article 1 jurisdiction was, in fact, limitless—whenever
there was in substance a potential violation of the ECHR, the Commission found
that state jurisdiction existed.192
All of this changed, of course, with Bankovic, where the Court explicitly rejected
‘a “cause-and-effect” notion of jurisdiction’,193 and gave short shrift to the contrary
practice of other human rights institutions, on which the applicants relied:
Fourthly, the Court does not find it necessary to pronounce on the specific meaning to be
attributed in various contexts to the allegedly similar jurisdiction provisions in the interna-
tional instruments to which the applicants refer because it is not convinced by the
applicants’ specific submissions in these respects (see } 48 above). It notes that Article
2 of the American Declaration on the Rights and Duties of Man 1948 referred to in the
above-cited Coard Report of the Inter-American Commission of Human Rights (} 23
above), contains no explicit limitation of jurisdiction. In addition, and as to Article 2 } 1
the CCPR 1966 (} 26 above), as early as 1950 the drafters had definitively and specifically
confined its territorial scope and it is difficult to suggest that exceptional recognition by the
190
Cyprus v. Turkey (dec.), App. Nos 6780/74 and 6950/75, 26 May 1975, at 136, para. 8.
191
See, e.g., Stocké v. Germany, App. No. 11755/85, Commission Report, 12 October 1989, para.
166. See also Gondek, at 126.
192
Sarah Miller suggests that the first Cyprus case can somehow be interpreted as being about
control over territory, rather than individuals—see S. Miller, ‘Revisiting Extraterritorial Jurisdiction:
A Territorial Justification for Extraterritorial Jurisdiction under the European Convention,’ (2010) 20
EJIL 1223, at 1237, arguing that ‘the essential predicate was that Turkey had established so great a
presence in Cyprus that it was in a position effectively to control administration in the region. Likewise,
Banković emphatically suggests that one cannot conflate questions of effective control of a region with
subsequent attribution of acts to state officials’. With respect, Miller is simply mistaken. There is
nothing in the Commission’s first decision on Cyprus, nor in its progeny, that suggests that the
Commission saw ‘jurisdiction’ as being about control over territory, rather than individuals. That
strand of Strasbourg jurisprudence begins in the Court’s Loizidou judgment many years later. It is
likewise simply anachronistic to read the Commission’s case law in light of Bankovic. While it is true
that, under the Commission’s approach, ECHR states parties would be responsible for violating the
ECHR whenever state agents exercise authority and control over individuals, this does not mean that
the issues of attribution and the existence of breach of obligation are conflated, just that the obligation is
not limited territorially.
193
Bankovic, para. 75.
Human Rights Committee of certain instances of extra-territorial jurisdiction (and the
applicants give one example only) displaces in any way the territorial jurisdiction expressly
conferred by that Article of the CCPR 1966 or explains the precise meaning of ‘jurisdiction’
in Article 1 of its Optional Protocol 1966 (} 27 above). While the text of Article 1 of the
American Convention on Human Rights 1978 (} 24 above) contains a jurisdiction condi-
tion similar to Article 1 of the European Convention, no relevant case-law on the former
provision was cited before this Court by the applicants.194
As we have seen, in recent years the adoption of the personal model has grown in
the jurisprudence of other human rights bodies, and the European Court could not
today dismiss it as easily. Be that as it may, having adopted a strict spatial, territorial
model of jurisdiction in Bankovic, the Court soon found itself faced with cases
where the application of this model would have led to unacceptable results.
4. Post-Bankovic Strasbourg case law

The first post-Bankovic case to directly contradict it was Issa, where the Chamber
endorsed the personal model of jurisdiction in addition to the spatial one:
Moreover, a State may also be held accountable for violation of the Convention rights and
freedoms of persons who are in the territory of another State but who are found to be under
the former State's authority and control through its agents operating—whether lawfully or
unlawfully—in the latter State (see, mutatis mutandis, M. v. Denmark, application no.
17392/90, Commission decision of 14 October 1992, DR 73, p. 193; Illich Sanchez
Ramirez v. France, application no. 28780/95, Commission decision of 24 June 1996, DR
86, p. 155; Coard et al. v. the United States, the Inter-American Commission of Human
Rights decision of 29 September 1999, Report No. 109/99, case No. 10.951, }} 37, 39, 41
and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the
cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and
56/1979, at }} 12.3 and 10.3 respectively). Accountability in such situations stems from the
fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to
perpetrate violations of the Convention on the territory of another State, which it could not
perpetrate on its own territory (ibid.).195
Of interest is not only that the Chamber considered ‘jurisdiction’ to mean state
authority and control over individuals, but how and why the Chamber reached this
conclusion. As for the how, note that the Chamber relies precisely on all those cases
so brusquely rejected by the Grand Chamber in Bankovic: the old European
Commission’s case law; the Coard decision of the Inter-American Commission;
and the Lopez Burgos and Celiberti cases of the Human Rights Committee. As for
the why, the Chamber made a direct appeal to universality, and did so in the exact
language of Lopez Burgos and Celiberti—‘the Convention cannot be interpreted so
as to allow a State party to perpetrate violations of the Convention on the territory
of another State, which it could not perpetrate on its own territory’.
194 195
Bankovic, para. 78. Issa, para. 71.
It is also worth mentioning that three of the judges sitting in the Chamber that
decided Issa in 2004—Judges Costa, Baka, and Thomassen—also sat on the Grand
Chamber that decided Bankovic in 2001. While the Grand Chamber was unani-
mous in Bankovic, the Court’s (quite unfortunate) practice is to disallow separate
opinions of judges in admissibility decisions, which only state whether they were
decided unanimously or by a majority.196 Thus, though all of the judges in
Bankovic were in agreement that the case should be dismissed, there could have
been serious disagreement on the bench on the exact reasoning for doing so—and
that disagreement might have re-emerged in Issa three years later. This, of course, is
purely speculative. What is not speculative, however, is that no amount of (honest)
distinguishing can reconcile Issa with Bankovic, as the former relied on a personal
model of jurisdiction which the latter discarded.
Now let us take a look at how the Issa approach fared in subsequent Strasbourg
jurisprudence. Its first mention was in that ill-fated case, filed (without any hint of
self-irony) by that great friend of human rights Saddam Hussein against several
European states, claiming that his continued detention in Iraq was unlawful.
A Chamber (Fourth Section) declared his complaint inadmissible since he was
being held by US troops, and was therefore outside the respondent states’ jurisdic-
tion.197 Although the Chamber cited Issa, it did not definitively embrace its approach
that control over an individual may establish state jurisdiction, though it did allow for
the possibility that state involvement in detention could be a basis for jurisdiction.
In several subsequent cases the Issa approach was cited with explicit approval. In
Pad and Others v. Turkey,198 the applicants were Iranian nationals, living close to
the Turkish border. They were killed by a Turkish helicopter, as Turkey claimed
when they attempted to cross the border illegally. Though it was undisputed that
they were killed by Turkish forces, it was disputed whether the killing took place on
the Turkish or the Iranian side of the border. Relying on Issa, the Chamber (Third
Section) held that
. . . a State may be held accountable for violations of the Convention rights and freedoms of
persons who are in the territory of another State which does not necessarily fall within the
legal space of the Contracting States, but who are found to be under the former State's
authority and control through its agents operating—whether lawfully or unlawfully—in the
latter State.
However, in the instant case, it was not disputed by the parties that the victims of the
alleged events came within the jurisdiction of Turkey. While the applicants attached great
importance to the prior establishment of the exercise by Turkey of extraterritorial jurisdic-
tion with a view to proving their allegations on the merits, the Court considers that it is not
required to determine the exact location of the impugned events, given that the Government
196
This was also most notably the situation in Behrami—see further Milanovic and Papic, above
note 96, at 293–4.
197
Saddam Hussein v. Albania and others (dec.), App. No. 23276/04, 14 March 2006. One could
question whether the United Kingdom was in a different position than the other respondent states, due
to its status as a joint occupying power in Iraq. See above Section 2.C.4.
198
Pad and Others v. Turkey (dec.), App. No. 60167/00, 28 June 2007.
had already admitted that the fire discharged from the helicopters had caused the killing of
the applicants’ relatives, who had been suspected of being terrorists.199
In other words, the Chamber in Pad seems to have accepted that because the
applicants were killed by Turkish agents, they were brought within Turkish
jurisdiction, regardless of whether the killing took place in Turkey or in Iran.
This is, of course, again in direct contradiction to Bankovic—even the killing itself
took place by missile fire from an aircraft! In Isaak and others v. Turkey200 the same
Chamber declared admissible the complaint by a family of an individual beaten to
death by TRNC police in northern Cyprus in a UN buffer zone, and therefore not
in an area over which Turkey had effective overall control under Loizidou. The
Chamber stated, inter alia, that
[i]n view of the above, even if the acts complained of took place in the neutral UN buffer
zone, the Court considers that the deceased was under the authority and/or effective control
of the respondent State through its agents (see Issa and Others, cited above). It concludes,
accordingly, that the matters complained of in the present application fall within the
‘jurisdiction’ of Turkey within the meaning of Article 1 of the Convention and therefore
entail the respondent State’s responsibility under the Convention.
Two similar cases, Solomou and Others v. Turkey 201 and Andreou v. Turkey,202
were decided by a Chamber (Fourth Section)—the same Chamber which later
decided Al-Saadoon, though with a somewhat different composition. The former
case simply repeated Isaak, while in the latter case, the Chamber declared admissi-
ble a complaint by an individual who was shot by Turkish or TRNC soldiers while
in the UN buffer zone:
The Government argued that there was no indication that at the time when she was struck
by the bullet the applicant had been in the territory of Turkey or of the ‘TRNC’. It was
contended that Turkey had no ‘jurisdiction’ and/or control over the UN-controlled buffer
zone or the Greek-Cypriot National Guard ceasefire line where the act complained of by the
applicant had occurred.
The Court reiterates that, in exceptional circumstances, the acts of Contracting States
which produce effects outside their territory and over which they exercise no control or
authority may amount to the exercise by them of jurisdiction within the meaning of Article
1 of the Convention. The Court notes that, according to UNFICYP’s press release and the
UN Secretary-General’s report on the events of 14 August 1996, the applicant’s injuries
were caused by Turkish and/or Turkish Cypriot uniformed personnel, who fired some 25 to
30 rounds into the crowd. These agents of the State were at the time of opening fire
in the territory of the ‘TRNC’. The Court further notes that, when she was hit by the bullet,
the applicant was standing outside the neutral UN buffer zone and in close vicinity to the
Greek-Cypriot National Guard checkpoint. Unlike the applicants in the Bankovic and
Others case (cited above) she was accordingly within territory covered by the Convention.
199
200
Isaak and Others v. Turkey (dec.), App. No. 44587/98, 28 September 2006.
201
Solomou and Others v. Turkey, Judgment, App. No. 36832/97, 24 June 2008, paras 44–5, 51.
202
Andreou v. Turkey (dec.), App. No. 45653/99, 3 June 2008.
In these circumstances, even though the applicant sustained her injuries in territory over
which Turkey exercised no control, the opening of fire on the crowd from close range, which
was the direct and immediate cause of those injuries, was such that the applicant must be
regarded as ‘within [the] jurisdiction’ of Turkey within the meaning of Article 1 and that the
responsibility of the respondent State under the Convention is in consequence engaged.203
It is notable that in this particular case, though the Chamber approvingly cited Issa,
it seemed to have found that Turkey had jurisdiction either because the bullet was
fired at the victim from an area controlled by Turkey, or because when the
applicant was hit by the bullet she was located in an area controlled by Cyprus—
a situation in the Chamber’s view distinguishable from that in Bankovic possibly
because it was in the ECHR’s espace juridique. It is unclear, at least to me, why the
Chamber in Andreou did not apply the Issa control over individuals’ basis of
jurisdiction, as in Isaak and Solomou.
In Ben El Mahi and Others v. Denmark,204 a Chamber (Fifth Section) declared
inadmissible an application lodged against Denmark by Moroccan residents who
alleged that Denmark had discriminated against them and violated their freedom of
religion by permitting the publication of cartoons disrespectful towards the prophet
Mohammed in a private Danish newspaper, which provoked an uproar in the
Muslim world. The Chamber found that the applicants were not within Danish
jurisdiction. It did, however, cite Issa and did accept in principle that jurisdiction
may arise from control over individuals.
In sum, three of the Court’s five sections cited Issa with approval for the
proposition that Article 1 ECHR jurisdiction may arise from state control over
an individual, rather than territory. This is both contrary to Bankovic and directly
undermines it. In none of these cases, of course, did the Chamber in question
openly acknowledge the conflict with the Bankovic Grand Chamber, choosing
rather to pretend that the Court’s case law is perfectly consistent and coherent.
In that regard, Issa and its progeny notwithstanding, any rumours about Banko-
vic’s imminent demise would be greatly exaggerated. Yes, it has been chipped away
at bit by bit, but this happened mostly in politically relatively unimportant, low-
profile cases. It is when the judges in these cases realized that the spatial model failed
them—that, for example, they could not establish the effective overall control of
Turkey over the UN buffer zone in Cyprus—and that this would lead to manifestly
unjust or arbitrary results, that they decided to instead rely on the personal model of
jurisdiction. The Grand Chamber has, however, affirmed Bankovic as recently as in
its 2010 Medvedyev judgment discussed above:
In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only
in exceptional cases that acts of the Contracting States performed, or producing effects,
outside their territories can constitute an exercise of jurisdiction by them for the purposes of
Article 1 of the Convention (see Banković, cited above, } 67, and Ilaşcu and Others v.
Moldova and Russia [GC], no. 48787/99, } 314, ECHR 2004-VII). In its first Loizidou
203
Andreou v. Turkey (dec.), App. No. 45653/99, 3 June 2008.
204
Ben El Mahi and Others v. Denmark (dec.), App. No. 5853/06, 11 December 2006.
judgment (preliminary objections), for example, the Court found that bearing in mind the
object and purpose of the Convention, the responsibility of a Contracting Party might also
arise when as a consequence of military action—whether lawful or unlawful—it exercised
effective control of an area outside its national territory (see Loizidou v. Turkey (preliminary
objections) [GC], 23 March 1995, } 62, Series A no. 310). This excluded situations,
however, where—as in the Banković case—what was at issue was an instantaneous extrater-
ritorial act, as the provisions of Article 1 did not admit of a ‘cause-and-effect’ notion of
‘jurisdiction’ (Banković, } 75).205
The Court not only reaffirmed the Bankovic rejection of a ‘cause-and-effect’ notion
of jurisdiction, but added a new gloss to Bankovic—that it dealt with ‘an instanta-
neous extraterritorial act’, i.e. a killing. The Court may thus be opening the doors to
the application of the personal model to, well, non-instantaneous acts, however
defined, most notably detention. This, of course, brings us to the single most
crucial problem of the personal model—what does, in fact, amount to state
‘authority and control’ over an individual? In other words, can the personal
model be limited so as to serve a useful purpose as a threshold for the application
of human rights treaties?
In my view, the answer to these questions is a resounding ‘no’—but this does not
mean that attempts have not been made. Let us look at some of them.
C. What amounts to authority and control? Can the personal

model be limited?
1. Physical custody
One possible way of attempting to limit the personal conception of jurisdiction is to
say that it applies only when a state has physical custody of an individual, and not to any
other form of control. Deprivation of liberty is by definition a ‘non-instantaneous act’,
to paraphrase Medvedyev, and many European cases applying the personal model, such
as Öcalan and Sanchez Ramirez, dealt precisely with detention. By so bounding the
personal model, ‘instantaneous acts’ such as an extraterritorial deprivation of life
would fall outside the state’s jurisdiction, unless they were committed in the context
of detention. Bankovic is, of course, undoubtedly an authority at least for the former
proposition.
Though, of course, the European Court could always limit by fiat the personal
conception of jurisdiction to physical custody, the real question is whether this
would be justified by any consideration of principle. I submit that it would not, and
there is no better case to illustrate this, as well as all the perils of the personal model,
than Al-Skeini.
Recall that all of the English courts dealing with the case found that the five
applicants killed by UK troops on patrol were not within the UK’s jurisdiction,
while Mr Baha Mousa, the sixth applicant, who was killed in British custody, was
within the UK’s jurisdiction. That outcome can, in my view, only be explained by
205
Medvedyev [GC], para. 64.
the fact that the jurisdiction issue in that case was reverse-engineered, as it were.206
From the standpoint of the English courts, while the killing of five Iraqis by UK
troops on patrol may have been regrettable, it was perhaps perfectly justified in
some cases, and could be rationalized as an accident of war in others. However, this
could not have been done with the killing of Baha Mousa, the sixth applicant.
Nothing could possibly have justified the beating to death of a defenceless prisoner
in UK custody, other than an unpalatable, overt adoption of double standards in
the name of either relativism or realpolitik, or both. Baha Mousa therefore had to be
protected by the ECHR—but what of the other five applicants?
One option, and the only option that would in my view truly have been
principled, would have been to engage in a substantive Article 2 ECHR analysis
regarding the lawfulness of the deprivation of life of all six applicants. While such an
analysis would have assuredly resulted in a violation with regard to Baha Mousa, the
result need not have been the same in respect of the applicants killed on patrol,
depending mainly on each particular set of facts, and on the degree to which the
courts would have been willing to attenuate their Article 2 analysis to better
accommodate the extraordinary circumstances of an occupied southern Iraq in
the throes of an insurgency.
But this, of course, was not the option favoured by the English courts. It was
simply too fraught with peril, political as well as legal. As it seemed to them
impossible to reconcile universality with effectiveness, all of the English courts
opted to dismiss the cases of the five applicants killed on patrol on the preliminary
grounds of lack of UK jurisdiction, and consequent lack of extraterritorial applica-
tion of the ECHR, and hence had to come up with a way of distinguishing their
cases from that of Baha Mousa. The High Court and the House of Lords chose to
do so by tweaking the spatial model so that it would cover UK military prisons
abroad, by making the extremely dubious analogy to embassies. The Court of
Appeal per Lord Justice Brooke thought, however, that such an analogy made little
sense, and quite rightly so. It therefore opted for a personal model of jurisdiction as
control over individuals,207 but it first had to consider Bankovic, which seemed to
have squarely rejected it:
I would therefore be more cautious than the Divisional Court in my approach to the
Bankovic judgment. It seems to me that it left open both the ECA [effective control of an
area, i.e. the spatial model] and SAA [state agent authority, i.e. the personal model]
approaches to extra-territorial jurisdiction, while at the same time emphasizing (in para
60) that because a SAA approach might constitute a violation of another state's sovereignty
(for example, when someone is kidnapped by the agents of a state on the territory of another
state without that state's invitation or consent), this route to any recognition that extra-
territorial jurisdiction has been exercised within the meaning of an international treaty
should be approached with caution.
206
See above, Chapter III, Sections 4.A and 6.
207
See Al-Skeini CA, para. 49 (per Brooke LJ), distinguishing between the spatial and personal
models, with the latter being referred to as ‘state agent authority’, or SAA.
Viewed in this light, the Court's conclusion in Bankovic was fairly inevitable. It was not a
case in which it could possibly be said that the NATO forces were in effective control of
the relevant area when they bombed the television station in Belgrade. What was in issue
on the applicants’ arguments was whether, because the bombing was NATO's direct act, any
of the states involved in the bombing could be said to have exercised Article 1 jurisdiction
over any of the citizens of the FRY who were affected by it, and the court ruled out this
possibility in para 71 of its judgment. I do not read the judgment as excluding the possibility that
if a person is in the custody or control of the agents of a member state (whether they be military
personnel or police officers) that state may not be fixed with having exercised jurisdiction over that
person ratione personae, particularly if, like the British army in Iraq, those agents form part of an
occupying force in the eyes of international law. This question did not arise for decision in
Bankovic. On the other hand, I consider that the attempt by the claimants to rely on some of
the conclusions reached by the Commission on SAA grounds in its 1976 Cyprus v Turkey
report (see para 58 above) as authority for the proposition that the citizens of Basrah City
came within the jurisdiction of the UK simply because they were affected by the activities of
the street patrols, without more, as being authoritatively refuted by Bankovic.208
The Court thus considered Bankovic not to exclude the personal model in princi-
ple, but to do so with regard to a deprivation of life without physical custody. It
then analysed the various cases applying the personal model that I have examined
above, including Öcalan, Freda, and Sanchez Ramirez,209 and quite correctly
concluded that
[t]hese cases have nothing to do with the principle of public international law relating to
activities within aircraft registered with a state when the aircraft is airborne. They reflect
examples of the SAA doctrine applying when someone is within the control and authority of
agents of a contracting state, notwithstanding that he comes within that control and
authority outside the espace juridique of the Council of Europe, and apparently whether
or not the host state has consented to this exercise of control and authority on its soil.210
For Lord Justice Brooke, the validity of the personal model was therefore clear, and
in his view it covered Baha Mousa:
Throughout the case law to which I have referred in paras 98–106 above there has been the
constant refrain that a state may be fixed with having exercised extra-territorial jurisdiction if
it has exercised control and authority over a complainant. The court's analysis will then be
centred on the particular complaint that is made. If the complaint concerns a breach of
Article 2 or Article 3 rights, the court will not only consider whether those rights have been
violated but also whether the state was in breach of the positive obligations imposed on it in
connection with the duty to secure those rights. The Secretary of State now concedes that
the UK had jurisdiction in relation to Baha Mousa throughout the period that led up to his
death, because he was being held in a British military prison that was operating in Iraq with
the consent of the Iraqi sovereign authorities and contained arrested suspects (see DC 287).
In my judgment, Mr Mousa came within the control and authority of the UK from the time
he was arrested at the hotel and thereby lost his freedom at the hands of British troops.211
208
Ibid., paras 80–1 (per Brooke LJ), emphasis added.
209
Ibid., paras 98–106 (per Brooke LJ).
210
Ibid., para. 107 (per Brooke LJ).
211
Ibid., para. 108 (per Brooke LJ).
Thus, from the moment that Baha Mousa was in British custody, he was within the
UK’s jurisdiction under the personal model. As for the other five applicants:
None of them were under the control and authority of British troops at the time when they
were killed. This is one of the main points that was decided in Bankovic (see para 81 above).
The only case which might give rise to an argument to the contrary is that of Muhammed
Salim (on the basis that British troops assumed control of the house when they burst in), but
it would in my judgment be thoroughly undesirable for questions about the applicability of
the ECHR to turn for their resolution on sophisticated arguments of this kind. The soldiers,
for instance, might have found they were by no means in control of the house if they had all
been shot dead by hostile gunfire after they had broken in. It is essential, in my judgment, to
set rules which are readily intelligible. If troops deliberately and effectively restrict someone's
liberty he is under their control. This did not happen in any of these five cases.212
This paragraph is absolutely fascinating, for two reasons. First, the Court of Appeal
found that Baha Mousa was under the control and authority of British troops, and
thus under UK jurisdiction, but that the five other applicants were not. In other
words, it thought that a ‘mere’ killing did not amount to control over an individual
for Article 1 ECHR purposes, while the arrest of an individual did. Secondly, the
Court briefly considered applying the spatial model as control by British troops
over the house where one of the applicants was killed, but decided that this would be
stretching it too far—it would be ‘thoroughly undesirable for questions about the
applicability of the ECHR to turn for their resolution on sophisticated arguments
of this kind’. This is exactly right, and this collapse of the spatial model is exactly
why not just the Court of Appeal in Al-Skeini, but other courts as well, have
thought it necessary to apply the personal model of jurisdiction.
Now, as for the distinction between physical custody, which does amount to the
control over an individual, and killing, which does not, note that the only reason the
Court gives for this distinction is that Bankovic said so. While Bankovic did not even
openly consider the personal model, the Court was right in interpreting it as
precluding a result whereby the power to kill alone could constitute jurisdiction
for Article 1 ECHR purposes.
Bankovic aside, of course, the question is whether this distinction makes any
sense—and it simply does not. Why, after all, should the state’s power to kill an
individual not be considered as an exercise of the state’s control over that individu-
al?213 Is not killing, in fact, the ultimate form of control?214 It is certainly true that
if a state has an individual in custody, it can do more to him than just kill him, by
for example subjecting him to torture or inhuman treatment. But should this
matter? Aside from killing, one can easily imagine a situation where, for instance,
212
See Al-Skeini CA, para. 110 (per Brooke LJ).
213
See also Scheinin, above note 172, at 77–8; Lubell, above note 50, at 221–4.
214
In that regard, one could perhaps draw a helpful analogy to the interpretation of the Fourth
Amendment to the US Constitution, which prohibits ‘unreasonable searches and seizures’. The US
Supreme Court has thus held not only that ‘[w]henever an officer restrains the freedom of a person to
walk away, he has seized that person, but also that ‘there can be no question that apprehension by the
use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment’.
Tennessee v. Garner, 471 U.S. 1, 7 (1985). See also ibid., at 25 (O’Connor J., dissenting).
one state has custody, but another does the torture, or is at least complicit in it—as
with the alleged involvement of the US and UK intelligence services in interroga-
tions conducted in Syria, Egypt, or Pakistan. If, say, a CIA agent was to prod a
detainee held in Pakistani custody with a hot poker, why should Pakistan be the
only state to blame for the torture?
Indeed, if we take a look at some of the case law, we can see that the personal
model has been applied even in cases which did not involve physical custody, as, for
example, in Pad, Isaak, and Solomou.215 All of them involved a killing that took
place outside detention. After all, the whole universality rationale of Issa was that
‘the Convention cannot be interpreted so as to allow a State party to perpetrate
violations of the Convention on the territory of another State, which it could not
perpetrate on its own territory’.216 From the standpoint of universality, it makes no
sense to say that a state acting extraterritorially may not detain arbitrarily, but
that it may, in fact, kill arbitrarily. If anything, such a position would precisely create
an incentive for states to kill rather than capture,217 as can indeed be seen from the
escalation of drone attacks against suspected terrorists in Pakistan and Afghanistan,
and a massive decrease in the number of those who are actually detained.218
In short, saying that physical custody is the only form of state authority and
control over an individual that is acceptable for the personal model of jurisdiction is
precisely the kind of ‘sophisticated legal argument’ that the Court of Appeal rightly
decided to disregard in respect of the spatial model. It is, indeed, sophistry rather
than sophistication, merely a device to exclude from the ambit of judicial review
those cases which present extreme political or policy difficulties, and yet are morally
much more blurry than is the killing of a defenceless prisoner—as with the
unfortunate, but perhaps justifiable killing of civilians on patrol, or as collateral
damage in airstrikes, or what have you. It is to avoid dealing with such cases that the
personal model is artificially limited, but such unprincipled limitations by their very
nature cannot persist indefinitely.
As of the time of writing, Al-Skeini is pending before the Grand Chamber of the
European Court. Compared to the House of Lords’ judgment, the Court could do
better or worse, and much depends on just how many issues the Court will reach.
Thus, from the standpoint of the spatial model, the Court could do the
following:
(1) Affirm that the effective overall control of an area conception of jurisdiction
applies outside the ECHR’s espace juridique, as the Chamber had done in
Issa, or, conversely, agree with the House of Lords that the spatial model
215
See above, Section 3.B.4.
216
Issa, para. 71.
217
See also Lubell, above note 50, at 224.
218
With this particular example, the incentive to kill rather than capture was created in great part
by the cautious inroads of US courts into the Executive’s detention policies abroad, as with Guanta-
namo, and pending litigation regarding Bagram—see, e.g., ‘Special Report: How the White House
learned to love the drone’, Reuters, 18 May 2010, available at <http://www.reuters.com/article/
idUSTRE64H5SL20100518>.
extends only to the territories of the ECHR states parties—certainly the
worst possible result;219
(2) Assuming that the spatial model does apply, the question then would be
whether Basra was under the UK’s effective overall control. The Court could
either say that the UK’s status as an occupying power necessarily meant that
it was in control of Basra, despite all the difficulties that it had encountered,
and that hence all six applicants were within the UK’s jurisdiction, or it
could agree with the English courts that Basra was not under the UK’s
effective control;220
(3) A finding that Basra, was, in fact, an area under the UK’s jurisdiction would
dispose entirely of the preliminary question of extraterritorial application. If,
however, the Court were to find that Basra was not under the UK’s control,
it then may decide to apply the attenuated version of the spatial model as
control over places in order to bring Baha Mousa under the UK’s jurisdiction
upon his detention, as in Al-Saadoon.221 Doing so, however, would leave
outside the ECHR’s scope any events that took place between Baha Mousa’s
arrest and his ultimate transfer to the UK detention facility.222
The possibilities of the spatial model would thus be exhausted, and the Court
would then have to examine the case from the standpoint of the personal model:
(1) It could reject the validity of the personal model altogether, or narrow its
application to some arbitrarily selected exceptional circumstances, and thus
exclude all of the applicants from the UK’s jurisdiction, unless it opted to
fiddle with the spatial model to protect Baha Mousa, as above;
(2) In a similar vein, it could adopt the approach of the Court of Appeal, saying
that the personal model requires physical custody, and that accordingly only
Baha Mousa was within the UK’s jurisdiction;
(3) Finally, it could radically depart from Bankovic, and say that the five
applicants killed by UK troops on patrol were also under the UK’s control,
and accordingly within its jurisdiction. This would be a welcome, but not
very likely development.
219 220
See above, Chapter III, Section 6.C. See above, Section 2.C.3.
221
See above, Section 2.D.
222
This issue was manifest in the parties’ arguments in Al-Skeini—see Al-Skeini CA, para. 183
(per Sedley LJ):
[H]ow, Mr Rabinder Singh QC asks, can one draw a rational line at the prison wall, so that
if Mr Mousa had been beaten to death by troops in the hotel where he was arrested rather
than in the prison to which he was taken, there would have been no violation of his
Convention rights? The logic of Mr Greenwood’s submission is that, bar the special status
of the military prison in international law, there can be no extra-territorial reach to the
ECHR. The logic of Mr Singh’s submission is that, given that the Convention reaches the
prison, by parity of reasoning it reaches everywhere in Iraq where British forces are the only
functioning form of government. That at least is his narrower submission, based on what he
calls effective control authority (ECA). His broader and preferred submission is that the
Convention reaches everywhere that agents of a state signatory operate (SAA).
The Court may of course very well surprise us. Whatever it does will inevitably be a
consequence of how it perceives the tension between universality and effectiveness
on the facts of the case, and on their broader policy implications, especially with
regard to the personal model.
2. Control over an individual in a specific place, or by specific agents

Another possible way of limiting the personal model would be to mix it with the
spatial one so that it would apply only in a certain kind of place, or to limit it only to
a certain kind of state agent. For example, one could read cases like Öcalan as
implying that custody over the individual was insufficient of itself to create
jurisdiction, but that it had to take place in a context where general international
law somehow recognizes that states may exceptionally exercise their jurisdiction
extraterritorially, e.g. aboard a registered aircraft or in an embassy. This is, in
essence, a variation of the special approach to diplomatic agents or premises, or
to ships and aircraft, that we have already examined above, and is no more
persuasive. None of the relevant cases actually say that the nature of the place in
which the control over an individual is exercised matters, nor is it obvious that it
should matter. Nor would this, again, be warranted by any consideration of general
international law. As I have argued above, it is perfectly irrelevant for the question
of the extraterritorial application of human rights treaties that customary law
recognizes that the state may regulate conduct aboard registered ships and airplanes,
or that diplomatic and consular agents and premises have a distinct status protected
by jurisdictional immunities.223
3. Nationality and membership in the armed forces

Yet another potential avenue of limiting the personal model would be to do so on
the basis of the victim’s nationality or some other status, most notably membership
in the state’s armed forces. So far we have generally considered examples where a
state agent affects the rights of a national of another state when acting extraterri-
torially—for instance, when UK soldiers killed the Iraqi applicants in Al-Skeini. But
what of the scenario where one UK soldier kills another, for instance in a friendly fire
incident, or in a plain, old-fashioned murder? Would the UK have an Article 2 ECHR
obligation to investigate?
Such a scenario is obviously not hypothetical. UK courts first encountered it
in Gentle, in which the applicants were the mothers of two UK soldiers who both
died while serving in Iraq.224 One was killed by a roadside bomb, the other in
a friendly fire incident. Inquests were held regarding both deaths, and the relevant
facts were established beyond any doubt. However, the applicants contended that
Article 2 ECHR required the UK not only to fully investigate the circumstances of
the deaths themselves, but also to establish an inquiry into the 2003 Iraq war as a
223 224
See above, Section 2.D. R. (Gentle) v. Prime Minister [2008] 1 AC 1356.
whole, particularly into the process and the legal advice given before the troops were
committed to an armed conflict. In effect, they were trying to inject jus ad bellum-
type arguments into the framework of Article 2. The House of Lords found
unanimously that such a far-reaching inquiry fell outside the scope of state positive
obligations imposed by Article 2. It therefore avoided ruling on whether the two
soldiers were protected by the ECHR in the first place, i.e. whether it applied to
them extraterritorially. That issue was, however, briefly addressed by two of the law
lords. Lord Bingham thus noted that
[s]ubject to limited exceptions and specific extensions, the application of the Convention is
territorial: the rights and freedoms are ordinarily to be secured to those within the borders of
the state and not outside. Here, the deaths of Fusilier Gentle and Trooper Clarke occurred
in Iraq and although they were subject to the authority of the respondents they were clearly
not within the jurisdiction of the UK as that expression in the Convention has been
interpreted . . . But I think there is a more fundamental objection: that the appellants’
argument, necessary to meet the objection of extra-territoriality, highlights the remoteness
of their complaints from the true purview of article 2.225
He thus opted for the spatial model, and considered that the two soldiers were
clearly not covered by it. Baroness Hale, on the other hand, stated the following:
Nor have I much difficulty with the proposition that these soldiers were within the
jurisdiction of the United Kingdom when they met their deaths. If Mr Baha Mousa,
detained in a military detention facility in Basra, was within the jurisdiction, then a soldier
serving under the command and control of his superiors must also be within the jurisdic-
tion: see R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26; [2007] 3 WLR 33.
The United Kingdom is in a better position to secure to him all his Convention rights,
modified as their content is by the exigencies of military service, than it is to secure those
rights to its detainees.226
Thus, for Baroness Hale, UK soldiers were within the UK’s jurisdiction simply
because they were under the command and control of their superiors—precisely the
variation of the personal model that I am interested in here.
The question of extraterritorial application could not have been avoided in
Smith, which also concerned a UK soldier who died in Iraq. An inquest was held,
which established that he died from heatstroke. The soldier’s mother, however,
contended that her son’s death warranted an Article 2 ECHR inquiry, which would
not be limited only to the immediate cause of his death, but would also examine
any possible systemic failures by the UK government—such as, for instance, not
providing the soldiers with appropriate equipment or facilities—that could have led
to her son’s death. The question of extraterritorial application thus inevitably arose:
was Private Smith protected by the ECHR while in Iraq, or not?
Now, crucially, Private Smith actually died on a UK military base. Per the UK
government’s concession in Al-Skeini, the House of Lords’ quite dubious analogy
between a military prison or base and an embassy, and the European Court’s
225 226
Ibid., para. 8(3) (per Lord Bingham). Ibid., para. 60 (per Baroness Hale).
admissibility decision in Al-Saadoon, that fact alone would have brought Private
Smith within the UK’s jurisdiction. In other words, under the spatial model as
applicable to places Private Smith would have been within the UK’s jurisdiction,
and therefore entitled to protection under Article 2 ECHR. However, issue was
raised in the lower courts as to whether he would have been within the UK’s
jurisdiction even if he did not die on the base, or in any area under the UK’s effective
control, but essentially under the same circumstances.
In the High Court, Mr Justice Collins thought that the answer to this question
could only be in the affirmative:
At the material time, the Coalition Provisional Authority in Iraq (following the ouster of the
government of Saddam Hussain) had issued an order whereby the Multinational Force (of
which British troops formed a part) should be ‘immune from Iraqi legal process’ and that all
personnel should be ‘subject to the exclusive jurisdiction of their sending States’: see section 2 1)
and 3). Thus the U.K.'s jurisdiction over its own nationals was clearly maintained. In any event,
members of the armed forces remain at all times subject to the jurisdiction of the U.K. It would
obviously be wholly artificial to regard a soldier sent to fight in the territory of another state as
subject to the jurisdiction of that state.227
The judge accordingly applied a personal conception of jurisdiction, as applying to
UK nationals and/or soldiers. Now, obviously, this position is of great practical
relevance for UK military operations abroad. Many soldiers have lost their lives
outside areas under UK effective control, and they would under Mr Justice Collins’
ruling all at least in principle be entitled to the protections of Article 2 ECHR. The
government therefore appealed his decision, arguing that Article 1 jurisdiction is
exclusively territorial, and would apply only if a soldier died on a UK military base
or a UK military hospital (as was in fact the case in Smith)—in other words, in a place
under UK jurisdiction. The government relied, inter alia, on Lord Bingham’s opin-
ion in Gentle, which Mr Justice Collins considered to have been dicta.228 The Court of
Appeal affirmed the lower court’s ruling in the following terms:
In our judgment, if it is permissible to answer the question posed by Lord Rodger, namely
whether there was a sufficient link between Private Smith and the UK when he died, on the
assumption for this purpose that he died outside the base or a hospital, in a broad and
commonsense way, the answer is in our opinion plainly yes. As the judge put it at [9] of his
addendum, there is a degree of artificiality in saying that a soldier is protected so long as he
remains in the base or military hospital but that he is not protected as soon as he steps
outside.
As the Commission succinctly puts it in its skeleton argument, there is no question but
that members of the British armed forces are subject to UK jurisdiction wherever they are.
They remain subject to UK military law without territorial limit and may be tried by court
martial whether the offence is committed in England or elsewhere. They are also subject to
the general criminal and civil law. Soldiers serve abroad as a result of and pursuant to the
exercise of UK jurisdiction over them. Thus the legality of their presence and of their actions
depends on their being subject to UK jurisdiction and complying with UK law. As a matter
227
R. (Smith) v. Secretary of State for Defence [2008] EWHC 694 (Admin), para. 12.
228
R. (Smith) v. Secretary of State for Defence [2009] EWCA Civ 441, paras 13–15.
of international law, no infringement of the sovereignty of the host state is involved in the
UK exercising jurisdiction over its soldiers serving abroad.
It is not in dispute that the army owes soldiers a duty of care while they are in Iraq, as
elsewhere. However, it does not follow from this that a soldier in Iraq is within the
jurisdiction of the UK under the Convention. We stress that we are not saying that such
a soldier is within the jurisdiction merely because the army may owe soldiers a duty of care.
We recognise that that is a different question. However, it is accepted that a British soldier is
protected by the HRA and the Convention when he is at a military base. In our judgment, it
makes no sense to hold that he is not so protected when in an ambulance or in a truck or in
the street or in the desert. There is no sensible reason for not holding that there is a sufficient
link between the soldier as victim and the UK whether he is at a base or not. So too, if he is
court-martialled for an act committed in Iraq, he should be entitled to the protection of
article 6 of the Convention wherever the court martial takes place: see in this regard per Lord
Brown in Al-Skeini at [140]. In these circumstances we accept the submission made by the
Commission that there would have to be compelling reasons of principle for drawing a
distinction for the purposes of jurisdiction under article 1 of the Convention between the
soldier while at his base and the soldier when he steps outside it, at any rate so long as he is
acting as a soldier and not, in the old phrase, on a frolic of his own. In our judgment, no
such compelling reasons have been advanced on behalf of the Secretary of State.229
Like the High Court, the Court of Appeal adopted a personal conception of
jurisdiction, based on the victim’s status as a member of the armed forces. The
Court quite rightly pointed out that it would be artificial and defy common sense to
say that a UK soldier was protected by the ECHR while on a UK base, but would
lose all protection once he stepped outside it.
The Supreme Court disagreed.230 By a majority of 6 to 3 (Lady Hale and Lords
Mance and Kerr dissenting), the justices found that mere membership in the armed
forces was insufficient to establish a jurisdictional link for the purposes of Article 1
ECHR. This result is in my view ultimately correct. I am personally less than
happy, however, with the reasoning of either the majority or the minority in the
process of reaching this result. Because, of necessity, they had to start from
Bankovic, with all its methodological flaws, the judgments of both the majority
and the minority suffer from a great deal of otherwise needless conceptual confu-
sion. In other words, because they are national judges applying a treaty primarily
supervised by an international court, it is natural that the justices followed the
European Court’s approach, however flawed, and whatever their misgivings about
the mess that Strasbourg has made.
Thus, in his judgment for the majority, Lord Phillips mainly emphasized
considerations of effectiveness, by saying that it is for him simply inconceivable
that ECHR states parties assumed upon themselves the obligation to conduct an
Article 2-compliant investigation into the death of any of their soldiers abroad, nor
have they behaved accordingly.231 So did Lord Collins,232 who added that there
were no ‘policy grounds for extending the scope of the Convention to armed forces
229
R. (Smith) v. Secretary of State for Defence [2009] EWCA Civ 441, paras 27–9.
230
R. (Smith) v. Secretary of State for Defence [2010] UKSC 29.
231 232
Ibid., paras 54–61. Ibid., paras 303–9.
abroad. On the contrary, to extend the Convention in this way would ultimately
involve the courts in issues relating to the conduct of armed hostilities which are
essentially non-justiciable.’ Both justices stressed that there was no ECHR case law
directly supporting the proposition that membership in the armed forces could
qualify as ‘authority and control’ over an individual, and form a basis for Article 1
jurisdiction.
But, Bankovic and its lamentable offspring aside, is this explanation truly satisfac-
tory? Is the majority really correct that Private Smith was not within the UK’s
jurisdiction under the personal model? Is it not true, as Lord Mance pointed out in
his dissenting judgment, that it is ‘commonsense’ that UK soldiers are within
the UK’s jurisdiction?233 Is it not true, as Lord Kerr thought,234 that ‘the United
Kingdom brought its soldiers into Iraq; it not only asserted complete authority over
them while they remained there, it explicitly excluded the exercise of authority over
those soldiers by any other agency or state; and it has always been clear that soldiers
remain subject to the laws of the UK during their service abroad’? And is it not true
that, as noted by a commentator, ‘[t]here is a simple, intuitive point—if a soldier is
always subject to UK law, wherever he may be, should he not thereby be also entitled
to the protection of UK law (including the Human Rights Act)?’235
I would submit that this intuition is wrong, however commonsense it may seem
at first glance. It not only assumes that the spatial model can be supplemented by a
variant of the personal model based on legal links such as nationality or membership
in the armed forces, but it rests on a confusion—confusion that we have seen time
and again—between the various meanings that the word ‘jurisdiction’ can have in
general international law. We can recall that in its first northern Cyprus decision, the
European Commission made the same category error, when it remarked that
[t]he Commission further observes that nationals of a State, including registered ships and
aircraft, are partly within its jurisdiction wherever they may be, and that authorised agents of
a State, including diplomatic and consular agents and armed forces, not only remain under its
jurisdiction when abroad but bring any other persons or property ‘within the jurisdiction’ of
that State, to the extent that they exercise authority over such persons or property. Insofar as,
by their acts or omissions, they affect such persons or property, the responsibility of the State
is engaged.236
As I have explained above,237 it is true that a state may legislate for its nationals and
members of its armed forces even when they are abroad, and in fact all states do that
to a greater or a lesser extent. It is also true that a state’s soldiers are its de jure
organs, and that their conduct performed in their official capacity is attributable to
the state. Neither of these premises can, however, lead to the conclusion that a
233 234
Ibid., para. 192. Ibid., para. 322.
235
See A. Bailin, ‘Case preview—R (Smith) v Secretary of State for Defence—on appeal from
[2009] EWCA Civ 441’, UKSCblog, 13 March 2010, available at <http://ukscblog.com/case-preview-
%E2%80%93-r-smith-v-secretary-of-state-for-defence-on-appeal-from-2009-ewca-civ-441>.
236
Cyprus v. Turkey (dec.), App. Nos 6780/74 and 6950/75, 26 May 1975, at 136, para. 8 (emphasis
added). Similarly, see Saldaño v. Argentina, paras 20–2.
237
See Chapter II, Section 2.
state’s soldiers, or diplomats, any other agents or even nationals are, regardless of
their location, always within that state’s jurisdiction within the meaning of the
jurisdiction clauses of human rights treaties. This ‘jurisdiction’ is simply not the
jurisdiction to prescribe in general international law. It is not about the application
and extent of UK domestic law, exclusion from Iraqi law, or even some sort of
mutuality of obligations.
Likewise, the Court of Appeal’s statement that ‘[a]s a matter of international law,
no infringement of the sovereignty of the host state is involved in the UK exercising
jurisdiction over its soldiers serving abroad’ is perfectly true. It is also perfectly
beside the point. There is equally no infringement on the sovereignty of the host
state if a UK soldier is prohibited by UK law or by human rights law from shooting
an Iraqi national.238
If the personal model of jurisdiction is valid, its acceptance of nationality or
membership in the armed forces as grounds of state jurisdiction would lead to an
open embrace of double standards—and there, I may say, is where the intuitive
appeal actually lies. Let us, for example, simply transplant Smith to the facts of Al-
Skeini—imagine that one of the five applicant Iraqi citizens killed by UK troops on
patrol was actually a dual UK/Iraqi national. Imagine further that the sixth
applicant was not Baha Mousa, but a UK soldier killed by friendly fire by UK
troops on patrol. The reasoning of the lower courts or the minority of the Supreme
Court in Smith would lead to the result that the dual national and the UK soldier were
within the UK’s jurisdiction and thus entitled to the protection of Article 2 ECHR,
while the other applicants were not, even though all of them were killed in exactly the
same way, in exactly the same place.
In other words, the appeal of the minority approach lies precisely in the fact that
we would feel it unjust if the UK government did not owe human rights obligations
to its own soldiers in Iraq,239 while our feelings may be more mixed when it comes
to Iraqi civilians shot on patrol. We simply care more about ‘our boys’, than about
their enemies or even their victims, and we thus feel them more deserving of
protection. Starting from the assumption that Bankovic and Al-Skeini were cor-
rectly decided, as they had to, the minority’s approach is ultimately about ‘us’
versus ‘them’, if not openly so, and is antithetical to the whole idea of universality.
This is not to say that nationality or membership in the armed forces is totally
irrelevant for the substantive application of human rights norms. This, however,
only depends on the content of a very limited set of rights, but the application of the
ECHR as such cannot depend on nationality or any other personal status.
238
239
The irony is that before the progress of internalization of human rights has progressed to the
extent that it has today, soldiers were considered to have waived the rights that they would have had as
civilians, and had no recourse to judicial review merely because of their membership in the armed
forces. Similarly, it has been a point of some dispute within UK academic literature whether ‘public
authorities’ within the meaning of s. 6 of the Human Rights Act 1998 could themselves enjoy rights
under the Act against other public authorities. See further D. Oliver, ‘The Frontiers of the State: Public
Authorities and Public Functions under the Human Rights Act’, (2000) PL 476, at 491–2; H. Davis,
‘Public Authorities as ‘Victims’ under the Human Rights Act’, (2005) 64 CLJ 315.
In short, while it may be artificial to say that a UK soldier would be protected by

the ECHR while on a UK base, but not off it, this is no more artificial than saying
that an Iraqi national is protected by the ECHR while on a UK base or while in UK
custody, but not on the streets of Basra,240 as was the result in Al-Skeini. Thus,
though Lord Phillips’ judgment for the majority in Smith mainly rests on con-
siderations of practicality or effectiveness to deny the extraterritorial applicability of
the ECHR to UK soldiers abroad on account of their status, I would submit that,
more fundamentally (and perhaps with a degree of irony), this is the only result
consistent with universality as the normative foundation of the ECHR and all other
human rights treaties—unless, of course, it is Bankovic and Al-Skeini themselves
which were wrongly decided.
4. Exercise of a legal power

A more promising method of limiting the personal model of jurisdiction as
authority and control over individuals may be to rely on the ‘authority’ part by
requiring the exercise of some sort of purported legal power over the victim of the
alleged human rights violation. One could possibly deduce this limitation from a
number of cases dealing with what I will broadly term extraterritorial law enforce-
ment, in which no issue of extraterritorial application of human rights treaties was
raised, or the applicability of the relevant treaty was assumed. In my view, this
limitation would also not rest on any grounds of principle, but let us first examine it
in more detail.
Note, first, that as with control over territory, which the European Court in
Loizidou thought could be either lawful or unlawful, so too would the personal
model have to apply to both lawful and unlawful exercises of state power over an
individual. Not only would any other solution open the door to abuse, but it would
actually deny human rights protection precisely in those situations where they are
being affected by an exorbitant exercise of state enforcement jurisdiction or power
pure and simple as a matter of international law. Thus, for example, whether the
state of Israel had a right in international law to abduct Adolf Eichmann from
Argentina (it clearly did not) should have no bearing on whether Eichmann had any
rights vis-à-vis Israel.
Indeed, if we take a look at the European Court cases that applied the personal
model, we will see that they explicitly say that jurisdiction arises even when the state
concerned acts unlawfully: ‘a State may also be held accountable for violation of the
Convention rights and freedoms of persons who are in the territory of another State
but who are found to be under the former State’s authority and control through its
agents operating—whether lawfully or unlawfully—in the latter State’.241 Likewise,
in Lopez Burgos the Human Rights Committee noted that
240
See also B. Silverstone, ‘R. (on the application of Smith) v Oxfordshire Assistant Deputy
Coroner: Human Rights and the Armed Forces’, (2009) 4 EHRLR 566, esp. at 576.
241
Issa, para. 71 (emphasis added). See also Pad and others v. Turkey (dec.), para. 53; Isaak (dec.), at
A.2; Solomou, para. 45; Andreou (dec.), at A.3; Ben El Mahi (dec.), section ‘The Law’.
Article 2(1) of the Covenant places an obligation upon a State party to respect and to ensure
rights ‘to all individuals within its territory and subject to its jurisdiction’, but does not
imply that the State party concerned cannot be held accountable for violations of rights
under the Covenant which its agents commit upon the territory of another State, whether
with the acquiescence of the Government of that State or in opposition to it.242
This of course makes perfect sense. As I have explained above,243 the sovereignty of
the territorial state may or may not have already been violated by the extraterritorial
act of another state, depending on whether valid consent was given or whether the
latter state had some other authority for its actions, such as self-defence or a Security
Council resolution. But the territorial state’s sovereignty is in any event immaterial
for the question of whether the individuals in that state are entitled to human rights
protection against a third state.
Therefore, the personal model could not be limited only to lawful exercises of
state power, as between two states and as a matter of general international law. But
could it, perhaps, be limited to those extraterritorial acts which could be unlawful,
or not, as a matter of international law, but would still be an exercise of a legal
power? In other words, could the personal model of jurisdiction apply only when
the state acts extraterritorially under colour of law—say if it arrests or abducts an
individual in another state on the basis of a domestic judicial warrant?244
If we examined cases dealing with such instances of extraterritorial law enforce-
ment, or law enforcement which is intraterritorial even though the victim of the
alleged violation is outside the state’s territory, we would see that human rights
treaties were generally considered to be applicable. To my mind, the best such
examples are judicial proceedings, whether as in absentia trials of a person located in
another country, or indeed as extraterritorial trials by courts of one state sitting in
another. Surely we would say in such cases that the state concerned would be bound
by fair trial guarantees? When, for instance, the special Scottish criminal court
convened at the neutral venue of Camp Zeist in the Netherlands to try those
accused of the Lockerbie bombing, surely the defendants were entitled to Article 6
ECHR rights, even though they were not in the UK? After all, is there anything
more jurisdiction-y, as it were, then putting someone on trial?
And, sure enough, if we looked, for example, at Sejdovic v. Italy,245 we would see
that neither the Bankovic-aware Grand Chamber of the European Court, nor any of
the parties, thought that there was an Article 1 ECHR issue with respect to an
applicant, a Montenegrin national, who was tried in Italy in absentia for murder
while he had absconded to Germany. Of course he was entitled to Article 6 ECHR fair
242
Lopez Burgos, para. 12.3 (emphasis added).
243
244
This is, for example, what was argued by the respondent governments in Bankovic, para. 36:
As to the precise meaning of ‘jurisdiction’, they suggest that it should be interpreted in
accordance with the ordinary and well-established meaning of that term in public interna-
tional law. The exercise of ‘jurisdiction’ therefore involves the assertion or exercise of legal
authority, actual or purported, over persons owing some form of allegiance to that State or
who have been brought within that State’s control (emphasis added).
245
See, e.g., Sejdovic v. Italy [GC], App. No. 56581/00, Judgment, 1 March 2006.
trial rights, even though he was at the time certainly not within Italy’s ‘essentially
territorial’ jurisdiction. Note that in this example the possible violation of the
applicant’s rights would not have been extraterritorial, as the trial itself took place
in Italy, but that it is the victim who needs to be within the state’s jurisdiction at the
time of the violation for the ECHR to apply—at least under either the spatial or the
personal model.246
Similarly, in Martin v. UK 247 the applicant was the son a UK soldier serving in
Germany who was accused of murder, and who was under UK law subject to
military law as a family member residing with a member of the armed forces, and
was tried by a British court-martial sitting in Germany. Again, neither the parties
nor the Court raised any questions about whether he would be protected by the
ECHR vis-à-vis the UK, even though the trial itself took place in Germany, and
indeed the Court did find a violation of Article 6, on the grounds of a lack of
independence and impartiality of the tribunal.248
To give some more relatively random examples, in Mullai and Others v. Alba-
nia,249 the applicants were seven Albanian nationals, as well as an Albanian
company, who were embroiled in a dispute regarding a building permit. In
particular, the applicants alleged that Albanian authorities failed to enforce a final
court judgment which recognized the validity of their building permit, and this was
in violation of Article 6 and Article 1 of Protocol 1 to the ECHR. Crucially for our
purposes, some of the individual applicants were actually not living in Albania,
but in Italy and the United States. Again, however, nobody thought that these
particular applicants were not within Albania’s jurisdiction. Likewise, in Vrbica v.
Croatia,250 the applicant was a Montenegrin national living in Montenegro who
complained of the refusal of Croatian courts to enforce a judgment given by a
Montenegrin court and subsequently recognized in Croatia, which awarded him
damages against two Croatian companies for injuries he sustained in a traffic
accident. Again, even though the applicant was outside Croatia at the relevant
time, neither the Court nor the parties thought that there was an Article 1 issue to
be considered.
246
See also above, Chapter I, Section 2 on the definition of extraterritorial application.
247
Martin v. United Kingdom, App. No. 40426/98, Judgment, 24 October 2006.
248
Of interest may be a similar US case, where a US court sitting in West Berlin was trying an East
German national for hostage-taking and the hijacking of an airplane which he used to defect to West
Germany. In this case, however, the extraterritoriality issue was explicitly raised, with the US
prosecutors arguing that the US Constitution and its guarantees of due process and jury trial simply
did not apply to a US court sitting in West Berlin, which was even obliged to follow instructions issued
by the State Department. The presiding judge was quite understandably appalled, and promptly
went on to empanel a jury composed of West Berliners. The judge later wrote a book about the
trial, which was then made into a decent, if slightly preachy low-budget movie (Judgment in Berlin,
1988), remarkably starring Martin Sheen and Sean Penn. See also K. Raustiala, Does the Constitution
Follow the Flag? The Evolution of Territoriality in American Law (Oxford University Press, 2009), at
151–4.
249
Mullai and Others v. Albania, App. No. 9074/07, Judgment, 23 March 2010.
250
Vrbica v. Croatia, App. No. 32540/05, Judgment, 1 April 2010.
Nor are such cases limited to Strasbourg. Consider, for example, the well-known
Gueye et al. v. France case before the Human Rights Committee,251 in which the
applicants were more than 700 Senegalese nationals, all of them residing in Senegal,
who had served in the French army prior to Senegal’s independence. They alleged
that France discriminated against them on the basis of race or nationality because it
had enacted a law reducing their pension benefits when compared to retired French
soldiers of French nationality. The Committee duly found a violation of Article 26
ICCPR, but again neither it nor France thought that the applicants were not
protected by the ICCPR, even though they resided in Senegal when the relevant
law was enacted.252
Common to all of these cases is that even though the applicants were all located
outside the relevant state’s territory, they were subjected by that state to some form
of legal process. None of these cases could be regarded as being within the relevant
state’s jurisdiction pursuant to any variant of the spatial model, however attenuated,
as the victims of the human rights violations were not located in any area or place
under that state’s control. Likewise, in all these cases we would feel that it would be
manifestly unjust to deny the applicability of human rights treaties. It would simply
be inconceivable for the ECHR not to apply to in absentia trials in which the
accused has fled to another country, or, say, to the seizure of assets by the UK of a
tax-evading UK national residing in Monaco. It is obvious that the Convention should
apply, and this is why the issue of extraterritorial applicability of human rights treaties
is practically never raised in such situations.253
But, other than our intuition, on what grounds could we justify the extraterritor-
ial applicability of human rights treaties in such situations, where the victim is not
251
Ibrahima Gueye et al. v. France, Communication No. 196/1983, U.N. Doc. Supp. No. 40
(A/44/40) at 189 (1989). While examining the merits, the Committee only cryptically observed that
‘the authors are not generally subject to French jurisdiction, except that they rely on French legislation
in relation to the amount of their pension rights’. Ibid., para. 9.4.
252
Similarly, see El Orabi v. France (dec.), App. No. 20672/05, 20 April 2010, where the European
Court declared inadmissible the application of an Algerian national living in Algeria who was married
to an Algerian former member of the French armed forces, whose request for a survivor’s pension was
denied. The Court declared the application manifestly ill-founded, but it did not say that there was any
Article 1 issue in the case, even though both the applicant and her husband were residing in Algeria at
the time of her husband’s death. See also Carson and Others v. the United Kingdom [GC], App. No.
42184/05, Judgment, 16 March 2010, similarly dealing with UK pensions of persons residing outside
the UK, where likewise no jurisdiction issue was raised.
253
We could also consider the situation where it is not the state which initiates legal proceedings
against an individual outside its territory, but when it is rather that individual who does so. Thus, in
Markovic and Others v. Italy [GC], App. No. 1398/03, Judgment, 14 December 2006, dealing with
domestic proceedings initiated in Italy by the victims of the NATO bombing of the Belgrade TV
station at issue in Bankovic, the European Court held that (para. 54):
[e]ven though the extraterritorial nature of the events alleged to have been at the origin of an
action may have an effect on the applicability of Article 6 and the final outcome of the
proceedings, it cannot under any circumstances affect the jurisdiction ratione loci and
ratione personae of the State concerned. If civil proceedings are brought in the domestic
courts, the State is required by Article 1 of the Convention to secure in those proceedings
respect for the rights protected by Article 6. The Court considers that once a person brings a
civil action in the courts or tribunals of a State, there indisputably exists, without prejudice
to the outcome of the proceedings, a ‘jurisdictional link’ for the purposes of Article 1.
within the state’s jurisdiction conceived of territorially? One answer, which I prefer,
would be to simply say that the state jurisdiction threshold does not apply to
potential violations of states parties’ negative obligation to respect human rights.
Otherwise, we would have to accept a personal conception of jurisdiction as
authority and control over individuals, in these particular cases exercised as a legal
authority or power by the state over the individual concerned.
Consider, in that regard, Stephens v. Malta, an absolutely fascinating case.254 The
applicant was a UK national living in Spain, who was suspected by Maltese
authorities of having conspired with other persons in Spain to transport drugs to
Malta. A warrant for his arrest was issued by a Maltese court, and he was detained in
Spain following a request for his extradition. While still awaiting extradition in
Spain, the applicant retained counsel in Malta who challenged the lawfulness of the
arrest warrant before Maltese courts, inter alia on the grounds that the court which
issued the warrant lacked jurisdiction over a non-Maltese national accused of
committing a crime outside Malta. After several judicial instances, the original
arrest warrant was found to have been procedurally defective, while in Spain the
applicant was released on bail. However, after a new request for extradition was
filed, the applicant was rearrested, extradited to Malta, and ultimately convicted on
the criminal charges against him. Before the European Court, he challenged the
lawfulness of his detention in Spain pending extradition—but he did so by claiming
that Malta had violated Article 5(1) ECHR.
Of course, the merits of his case aside, the issue is precisely that until his
extradition the applicant did not set foot on Malta. In purely territorial terms, as
a UK national residing and then detained in Spain by Spanish authorities, he could
not possibly have been within Malta’s jurisdiction. While, as in other cases we have
seen above, the parties did not raise the question of the ECHR’s extraterritorial
application, the Court apparently realized the problem and did so proprio motu.
The Court first set out some general principles:
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 (see Ilaşcu and Others v.
Moldova and Russia, [GC], no. 48787/99, } 311, ECHR 2004 - . . . ).
According to established case-law Article 1 of the Convention must be considered to
reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdic-
tion being exceptional and requiring special justification in the particular circumstances of
each case. The Court refers to its case-law on the notion of “jurisdiction” and how that
notion has been interpreted and applied in different contexts (see Ilaşcu and Others [GC],
no. 48787/99, cited above; Banković and Others v. Belgium and 16 Other Contracting States
(dec.) [GC], no. 52207/99, ECHR 2001-XII; Assanidzé v. Georgia, [GC], no. 71503/01,
ECHR 2004 - . . . ; Soering v. the United Kingdom, 7 July 1989, Series A no. 161; Cruz Varas
and Others v. Sweden, 20 March 1991, Series A no. 201; Vilvarajah and Others v. the United
Kingdom, 30 October 1991, Series A no. 215; Loizidou v. Turkey (preliminary objections),
23 March 1995, Series A no. 310; Loizidou v. Turkey, 18 December 1996, Reports of
254
Stephens v. Malta (No. 1), App. No. 11956/07, Judgment, 31 March 2009.
Judgments and Decisions 1996-VI; Issa and Others v. Turkey, no. 31821/96, 16 November
2004; Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.)
[GC], nos. 71412/01 and 78166/01, 2 May 2007; Drozd and Janousek v. France and Spain,
26 June 1992, Series A no. 240, and Hess v. the United Kingdom, no. 6231/73, 28 May
1975, Decisions and Reports (DR) no. 2, p. 72).255
It then applied these general principles—to the extent that it actually identified any
of them—to the facts of the case:
The Court considers that for the purposes of the examination of this application and in view
of its conclusions in respect of the applicant’s various complaints, it suffices to consider the
matter of Malta’s jurisdiction solely in respect of the Article 5 complaints.
The Court notes that the applicant was under the control and authority of the Spanish
authorities in the period between his arrest and detention in Spain on 5 August 2004 and his
release on bail on 22 November 2004. In so far as the alleged unlawfulness of his arrest and
detention is concerned, it cannot be overlooked that the applicant’s deprivation of liberty
had its sole origin in the measures taken exclusively by the Maltese authorities pursuant to
the arrangements agreed on by both Malta and Spain under the European Convention on
Extradition.
By setting in motion a request for the applicant’s detention pending extradition, the
responsibility lay with Malta to ensure that the arrest warrant and extradition request were
valid as a matter of Maltese law, both substantive and procedural. In the context of an
extradition procedure, a requested State should be able to presume the validity of the legal
documents issued by the requesting State and on the basis of which a deprivation of liberty is
requested. It is to be noted that in the instant case the arrest warrant had been issued by a
court which did not have the authority to do so, a technical irregularity which the Spanish
court could not have been expected to notice when examining the request for the applicant’s
arrest and detention. Accordingly, the act complained of by Mr Stephens, having been
instigated by Malta on the basis of its own domestic law and followed-up by Spain in
response to its treaty obligations, must be attributed to Malta notwithstanding that the act
was executed in Spain.256
First, note how the Court’s reasoning in these three paragraphs has absolutely
nothing to do with the general principles that it had considered before. Indeed, the
Court seemed to have felt that there was jurisdiction on the facts of the case since
the Convention simply had to apply257—but then it realized that whatever it did,
this case simply does not fit any of its prior case law on extraterritoriality. Therefore,
the Court decided to cite and throw everything in, the kitchen sink and all, from
Bankovic and Behrami to Soering and Issa. Secondly, note also how the Court says
that ‘it suffices to consider the matter of Malta’s jurisdiction solely in respect of the
Article 5 complaints’, thus seemingly being at odds with the Grand Chamber’s
regime integrity-inspired holding in Bankovic that ‘the wording of Article 1 does
not provide any support for the applicants’ suggestion that the positive obligation
in Article 1 to secure “the rights and freedoms defined in Section I of this
255
Stephens v. Malta (No. 1), App. No. 11956/07, Judgment, paras 48 and 49.
256
257
This of course rests on the assumption that the applicability of all of the Convention rests on a
single threshold, that of state jurisdiction, which need not be the case.
Convention” can be divided and tailored in accordance with the particular circum-
stances of the extra-territorial act in question’.258 Indeed, if anything, the Court
applied precisely the kind of ‘cause-and-effect’ notion of jurisdiction that Bankovic
so pointedly rejected—Malta’s warrant was the cause of the applicant’s arrest in
Spain, and therefore the applicant was within Malta’s jurisdiction.
Thirdly, the Court pins its analysis on quite sensible grounds of policy—that
Spanish courts could reasonably have relied on the validity of the Maltese arrest
warrant, and could not have been expected to know of its procedural defects under
Maltese law. That said, the Court arrives at the remarkable conclusion that the
detention of the applicant, ‘having been instigated by Malta on the basis of its own
domestic law and followed-up by Spain in response to its treaty obligations, must
be attributed to Malta notwithstanding that the act was executed in Spain’.
By so deciding, the Court was presumably trying to explain why it was Malta,
and not Spain, that was the proper respondent in the case, even though the
applicant was at all times during his detention under Spain’s ‘control and author-
ity’. And though one cannot say that the Court’s approach is unreasonable as a
matter of policy, it is entirely at odds with the general rules on state responsibility to
say that the applicant’s detention was not attributable to Spain, but to Malta. The
detention was carried out by the de jure organs of Spain, who were not placed at
Malta’s disposal nor were acting under Malta’s control.259 What was attributable to
Malta was the defective arrest warrant issued by its court, and the request for
extradition that it transmitted to Spain. Spain then may have had the legal
obligation to comply with that request, but it could just as easily have refused to
do so; the applicant’s subsequent detention was still most certainly attributable to it.
Again, the ultimate result that the Court reached was perfectly sensible. Had it
been otherwise, Malta would have had human rights obligations towards the
applicant only once his extradition was completed, thus putting the period of
unlawful detention outside the scope of the ECHR. This still does not mean,
however, that the Court produced a satisfactory explanation as to why the ECHR
protected the applicant extraterritorially.
As I have said above, I see only two possible explanations. First, the Court could
have said, contra Bankovic, that the ECHR could apply even without Malta having
jurisdiction over the applicant—but that was not going to happen, for obvious
reasons. Secondly, the Court could have openly adopted the personal model, and said
that the applicant was within the jurisdiction of both Malta and Spain, with regard to
the former because Malta exercised a legal authority over him.260
258 259
Bankovic, para. 75. See Arts 4, 6, and 8 ILC ASR.
260
See, in that regard, Lichtensztejn v. Uruguay, Communication No. 77/1980, UN Doc. CCPR/
C/OP/2 at 102 (1990), which concerned the refusal by Uruguayan authorities to issue a passport to an
Uruguayan national residing in Mexico. The question, therefore, is whether the individual was within
Uruguay’s jurisdiction, and the Human Rights Committee found that he was (para. 6.1):
When considering the admissibility of the communication, the Human Rights Committee
did not accept the State party’s contention that it was not competent to deal with the
communication because the author did not fulfil the requirements of article 1 of the
Optional Protocol. In that connection, the Committee made the following observations:
In other words, if we operate within the personal model, that is, if we accept
that ‘jurisdiction’ in human rights treaties means not only effective control over
territory, but also authority and control over individuals, then we must also accept
that such authority over individuals can be exercised by a state simply by putting
in motion a legal process, without having physical control of the person in
question.261 The bigger question, however, is whether the personal model could
be limited to such legal authority or power.
In my view, it clearly cannot, for the same reason that it could not be limited to
the lawful exercise of state power under general international law—doing so would
open the door to abuse. Any of the possible violations that we have just seen that
the state has committed under colour of law it could have done through brute,
unadulterated force. Instead of putting someone on trial in absentia, or initiating
extradition proceedings, it could simply have sent its agents to abduct him, as the
Eichmanns, Öcalans, and Carloses of this world can attest. Instead of taking
somebody’s house through a legal procedure, it could have done so simply by
burning it down. And instead of France reducing the pensions of Senegalese
soldiers by passing a law, it could have simply stopped the payments by fiat.
Or, consider the following example: an ECHR state party organizes parliamen-
tary elections and allows its citizens living abroad to vote by post or by going to
designated polling stations in their host state—something that states are not obliged
to do in principle,262 but many states in fact do. It then decides, however, to
article 1 applies to individuals subject to the jurisdiction of the State concerned who claim
to be victims of a violation by that State of any of the Covenant rights. The issue of a
passport to a Uruguayan citizen is clearly a matter within the jurisdiction of the Uruguayan
authorities and he is ‘subject to the jurisdiction’ of Uruguay for that purpose. Moreover, a
passport is a means of enabling him ‘to leave any country, including his own’, as required by
article 12 (2) of the Covenant. Consequently, the Committee found that it followed from
the very nature of that right that, in the case of a citizen resident abroad, article 12 (2)
imposed obligations both on the State of residence and on the State of nationality and that,
therefore, article 2 (1)of the Covenant could not be interpreted as limiting the obligations.
of Uruguay under article 12 (2)to citizens within its own territory.
261
A commentator has suggested that factual conceptions of the word ‘jurisdiction’ in human
rights treaties, such as the one that I advocate in this study, cannot explain cases in which jurisdiction
was found to exist because of the exercise of a legal power by a state, such as the issuance of a passport as
in the Lichtensztejn case cited in n. 260 above. In his view, such cases can only be explained if the word
‘jurisdiction’ referred both to a state’s factual control over territory and individuals and to its lawful
competence in international law—see H. King, ‘The Extraterritorial Human Rights Obligations of
States’, (2009) 9 HRLR 521, at 537 et seq. To my mind, such an approach is unsatisfactory for two
simple reasons. First, it fails to explain how semantically, as a matter of treaty interpretation, a single
word—‘jurisdiction’—can mean two radically different things, both a state’s act affecting an individual
and its right to so act. Secondly, if the personal model of jurisdiction is accepted as valid, it is entirely
unnecessary for its application to require that a state exercise its lawful competence in international law
to prescribe legal rules and enforce them. It is enough, for example, that a state has subjected an
individual to a trial in absentia. Whether it had a right to do so in international law—in other words,
whether it violated, or not, the sovereignty of another state when it did so—is to my mind perfectly
irrelevant. After all, why should the applicability of fair trial guarantees depend on whether the in
absentia trial was an exorbitant exercise of the state’s jurisdiction to prescribe or enforce? And if it does
not, then the enquiry into the lawfulness, vel non, of the state’s act vis-à-vis a third state becomes
entirely beside the point.
262
See, e.g., X. and Association Y. v. Italy (dec.), App. No. 8987/80, 6 May 1981.
blatantly discriminate among its citizens living abroad by saying, for example, that
only those of a certain race, ethnicity, or gender may vote, and passes a law to that
effect. Would these people residing extraterritorially be protected by the ECHR
and its equality guarantee? Well of course they would, either because we consider the
jurisdiction threshold not to apply to a state’s violation of its negative obligations,
or because we adopt the personal model of jurisdiction, and say that the state has
exercised its authority over the individuals concerned, even though it had not laid a
hand on them physically.
But what if the state in question discriminated in exactly the same way, yet was
smart enough not to pass a law to that effect and in fact prevented the undesirables
from voting while having the most pristine electoral legislation imaginable. Would
the result be any different? Would the ECHR not apply just because the state has
creatively managed to avoid acting under the colour of law, but accomplished the
same invidious ends through other means?
Asking this question, I think, is to answer it. To the extent that the personal
model of jurisdiction is both valid and necessary, an exercise of a legal power or
authority by a state over an individual outside its territory would suffice to satisfy the
jurisdictional threshold. Limiting the personal model to such purported exercises of
legal power, however, would be entirely arbitrary, and would only serve to under-
mine the rule of law by creating a perverse incentive for states to act outside their
own legal system if they wish to violate human rights.
D. The personal model collapses

What, then, have we learned about the personal model? It cannot be limited to
physical custody. It cannot be limited on the basis of nationality or some special
status of the victim, or indeed of the perpetrator. It cannot be limited only to lawful
exercises of state power over individuals, nor to extraterritorial acts to which the
host state consents, nor indeed to acts committed under the colour of law. It
cannot, in short, be limited on the basis of any non-arbitrary criterion. ‘Authority
and control over individuals’ as a basis for state jurisdiction simply boils down to
the proposition that a state has obligations under human rights treaties towards all
individuals whose human rights it is able to violate.263
In other words, the main feature of the personal model of jurisdiction—its
ability to cover individuals who would be unprotected by the spatial model—is
also its main fault. It quite literally collapses, and serves no useful purpose as a
threshold for the application of human rights treaties. Unless the personal model is
limited artificially on the basis of some essentially arbitrary criteria, there is no
threshold.
263
See, in that regard, Scheinin, above note 172, at 76–8. This does not mean that a state’s
authority and control would exist whenever a state could affect an individual through its actions in a
more general way (e.g. by cutting exports or development aid). Rather, the act in question would need
to be capable of directly violating the treaty—see Lawson, above note 172, at 95, 104.
This, I think, was well realized by the Grand Chamber in Bankovic when it
rejected a ‘cause-and-effect’ notion of jurisdiction, which ultimately is what the
personal model boils down to. The same sentiment was shared by Lord Brown in
Al-Skeini, when he remarked that
[a]lternatively it would stretch to breaking point the concept of jurisdiction extending extra-
territorially to those subject to a state’s ‘authority and control’. It is one thing to recognise as
exceptional the specific narrow categories of cases I have sought to summarise above; it
would be quite another to accept that whenever a contracting state acts (militarily or
otherwise) through its agents abroad, those affected by such activities fall within its article
1 jurisdiction. Such a contention would prove altogether too much. It would make
a nonsense of much that was said in Bankovic, not least as to the Convention being ‘a
constitutional instrument of European public order’, operating ‘in an essentially regional
context’, ‘not designed to be applied throughout the world, even in respect of the conduct
of contracting states’ (para 80). It would, indeed, make redundant the principle of effective
control of an area: what need for that if jurisdiction arises in any event under a general
principle of ‘authority and control’ irrespective of whether the area is (a) effectively
controlled or (b) within the Council of Europe?264
Put aside, for one moment, the understandable fear of judges that the application of
the personal model up to its logical conclusion would render them unable to avoid
dealing with the merits of legally and factually complex and politically extremely
controversial cases. Even if that fear, based as it is on considerations of effectiveness,
could be addressed in a satisfactory way—as I think it can be—under the personal
model jurisdiction clauses in human rights treaties would essentially be rendered
meaningless. Any act capable of violating a person’s rights as a substantive matter
would also be capable of bringing that person within the state’s jurisdiction, and no
jurisdiction issue would therefore actually arise. And, as Lord Brown well notes, if
the personal model is applied consequentially, what would be the use for the spatial
model?
A further difficulty with the personal model is its lack of an adequate textual basis
in at least some of the treaties. While the words individuals ‘within its jurisdiction’
and ‘subject to its jurisdiction’ can reasonably be interpreted as denoting a power-
based relationship between the state and the individual, as we have seen such an
interpretation is textually simply impossible for some jurisdiction clauses, such as
the CAT’s ‘any territory under its jurisdiction’. These words unambiguously denote
a relationship between the state and the territory and only indirectly between the
state and the individuals located in that territory. No amount of creative interpre-
tation can plausibly change this result.
But again, more important than the textual difficulties is the fact that the
personal model collapses. Because it does, it is unlikely to be endorsed wholeheart-
edly by courts, especially those in which the stakes are the highest, as in Strasbourg.
Rather, they tend to use it in a wholly unpredictable and unprincipled fashion, to
carve limited exceptions out of Bankovic and its territorial model of jurisdiction one
264
Al-Skeini HL, para. 127 (per Lord Brown).
sliver at a time, in cases in which it would be morally difficult not to do so, and yet
not too inconvenient politically. Do they have some other choice, other than
running headlong into utopia? Is there a better way?
4. A Third Model: Territorial Jurisdiction and the Distinction

Between Positive and Negative Obligations
A. Universality unbound
The driving force behind the personal model is easy to spot—how could it be
justified against the normative baseline of universality that a state which is in full
control of its own agents is dispensed from respecting the human rights of persons
whose lives its agents affect, merely on account of their location? Yet it is precisely
this same driving force which ultimately leads to the collapse of the personal model
of jurisdiction. Why then not simply say that states have to comply with their
negative obligation to respect human rights in all circumstances, regardless of
whether they exercise jurisdiction over a particular territory or area?
There is truly a fundamental distinction between a state’s obligation to respect
human rights, which requires it only to refrain from infringing upon an individual’s
rights without adequate justification, and its duty to secure or ensure human rights
to the inhabitants of a certain territory, which, in certain circumstances, compels
the state to prevent the violations of human rights even by private parties.265
According to the Human Rights Committee,
The article 2, paragraph 1, obligations are binding on States [Parties] and do not, as such,
have direct horizontal effect as a matter of international law. The Covenant cannot be
viewed as a substitute for domestic criminal or civil law. However the positive obligations on
States Parties to ensure Covenant rights will only be fully discharged if individuals are
protected by the State, not just against violations of Covenant rights by its agents, but also
against acts committed by private persons or entities that would impair the enjoyment of
Covenant rights in so far as they are amenable to application between private persons or
entities. There may be circumstances in which a failure to ensure Covenant rights as
required by article 2 would give rise to violations by States Parties of those rights, as a result
of States Parties' permitting or failing to take appropriate measures or to exercise
due diligence to prevent, punish, investigate or redress the harm caused by such acts by private
persons or entities.266
265
See, e.g., T. Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible
Derogations’, in L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political
Rights (Columbia University Press, 1981), at 72–91. P. van Dijk et al., Theory and Practice of the
European Convention on Human Rights (Intersentia, 4th edn, 2006), at 13; Nowak, above note 170, at
37–41. In the context of socio-economic rights, Eide has in particular developed a more detailed
typology of rights, separating the broader obligation to ensure into the obligations to protect and
fulfil—see generally ‘The Right to Adequate Food as a Human Right’, Final Report submitted by
Asbjrn Eide, Special Raporteur, UN Doc. E/CN.4/Sub.2/1987/23 (1987). I do not believe that such
a disaggregated typology would be of direct relevance for the issue of extraterritorial application, so
I will not address it any further.
266
Human Rights Committee, General Comment No. 31, para. 8.
The positive obligation of a state to ensure the human rights of persons within its
jurisdiction from violations by private parties is not absolute, as states are neither
omniscient nor omnipotent. What they must do is to exercise due diligence, i.e. to
take all measures reasonably within their power in order to prevent violations of
human rights. As held by the Inter-American Court,
. . . in principle, any violation of rights recognized by the Convention carried out by an act
of public authority or by persons who use their position of authority is imputable to the
State. However, this does not define all the circumstances in which a State is obligated to
prevent, investigate and punish human rights violations, nor all the cases in which the State
might be found responsible for an infringement of those rights. An illegal act which violates
human rights and which is initially not directly imputable to a State (for example, because it
is the act of a private person or because the person responsible has not been identified) can
lead to international responsibility of the State, not because of the act itself, but because of
the lack of due diligence to prevent the violation or to respond to it as required by the
Convention.267
In order to be realistically complied with, the obligation to respect human rights
requires the state to have nothing more than control over the conduct of its own
agents. It is the positive obligation to secure or ensure human rights which requires
a far greater degree of control over the area in question, control which allows the
state to create institutions and mechanisms of government, to impose its laws, and
punish violations thereof accordingly.
This is then what my proposed third model would amount to: the notion of
jurisdiction in human rights treaties would be conceived of only territorially, as de
facto effective overall control of areas and places. Having now looked at the text of
the relevant treaties and the treaty practice of states generally, as well as at the case
law, this is indeed the most natural way of interpreting the term ‘jurisdiction’. This
threshold would, however, apply only to the state’s obligation to secure or ensure
human rights, but not to its obligation to respect human rights, which would be
territorially unbound.268
I should not be taken as arguing that the state is in exactly the same position with
respect to its negative obligations when it acts inside its territory in conditions of
normalcy, as when it acts outside it, particularly in wartime or other extraordinary
situations. What I am arguing is that the best way to address these difficulties, and
to fully take into account all considerations of effectiveness, is not in artificially
imposing a threshold for the state’s negative obligations, but in applying
the substance of these obligations to the facts at hand with a greater degree of
flexibility.269 As Lord Justice Sedley aptly put it in Al-Skeini:
267
Velasquez Rodriguez Case, Judgment of 29 July 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988),
para. 172.
268
Similarly, see E. Roxstrom, M. Gibney, and T. Einarsen, ‘The NATO Bombing Case (Bankovic
et al. v. Belgium et al.) and the Limits of Western Human Rights Protection’, (2005) 23 B.U. Int’l L.J.
55, at 72 et seq; J. Cerone, ‘Jurisdiction and Power: The Intersection of Human Rights Law & the Law
of Non-International Armed Conflict in an Extraterritorial Context’, (2007) 40 Israel L Rev 72, at
122–3.
269
[I]t is not an answer to say that the UK, because it is unable to guarantee everything, is
required to guarantee nothing. The question is whether our armed forces' effectiveness on
the streets [of Basra] in 2003–4 was so exiguous that despite their assumption of power as an
occupying force they lacked any real control of what happened from hour to hour in the
Basra region. My own answer would be that the one thing British troops did have control
over, even in the labile situation described in the evidence, was their own use of lethal force.
Whether they were justified in using it in the situations they encountered, of which at least
four of the cases before us are examples, is precisely the subject of the inquiry which the
appellants seek. It is in such an inquiry that the low ratio of troops to civilians, the
widespread availability of weapons and the prevalence of insurgency would fall to be
evaluated.270
He did not, however, think that this approach was open to him under existing
Strasbourg jurisprudence. And he was right—it is not. Adopting the third model
would require a radical rethink of Strasbourg’s approach, and to a lesser extent also
that of other human rights bodies. I am well aware that this makes the third model
less attractive. But having now extensively examined the European Court’s convo-
luted case law on extraterritoriality, would it really be such a bad thing to put it on
some sensible, principled foundation? I think not. It bears emphasizing, however,
that even in regular peacetime conditions the European Court has been prepared to
approach positive obligations flexibly.271 Thus, in the context of the right to life it
remarked that
[f]or the Court, and bearing in mind the difficulties involved in policing modern societies,
the unpredictability of human conduct and the operational choices which must be made in
terms of priorities and resources, such an obligation must be interpreted in a way which does
not impose an impossible or disproportionate burden on the authorities. Accordingly, not every
claimed risk to life can entail for the authorities a Convention requirement to take opera-
tional measures to prevent that risk from materialising. . . . In the opinion of the Court
where there is an allegation that the authorities have violated their positive obligation to
protect the right to life in the context of their above-mentioned duty to prevent and suppress
offences against the person (see paragraph 115 above), it must be established to its satisfac-
tion that the authorities knew or ought to have known at the time of the existence of a real
and immediate risk to the life of an identified individual or individuals from the criminal
acts of a third party and that they failed to take measures within the scope of their powers which,
judged reasonably, might have been expected to avoid that risk.272
Let me now make my argument in more detail. I will first try to establish
whether the text of the relevant treaties could accommodate the third model.
While I am not saying that my argument is free of all difficulties, I believe that
such difficulties can be overcome, particularly if the negative obligation to respect
human rights is read into some of the treaties implicitly. Further, as I will explain,
I am not advocating a crude distinction between negative and all positive obligations.
270
Al-Skeini CA, para. 197 (per Sedley LJ).
271
272
Osman v. United Kingdom [GC], App. No. 23452/94, Judgment, 28 October 1998, para. 116
(emphasis added).
Rather, some positive obligations are procedural or prophylactic in nature, tied solely
to the state’s compliance with its negative obligation to respect human rights. In my
view, it is only the wide-ranging obligation to secure or ensure human rights, particu-
larly from acts of third parties, that requires a jurisdictional threshold. Finally, I will try
to prove that, when compared to its rivals, this third model actually provides the best
balance between universality and effectiveness, if at a cost.
B. Textual interpretation and implicit negative obligations

Is the third model even possible under the text of the relevant human rights treaties?
Let us again look at what they say. Article 1 ECHR thus provides that ‘[t]he High
Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention’ (emphasis added). All this article
says, as I read it, is that the positive obligation to secure human rights is contingent
on state jurisdiction—something that I certainly do not dispute. Except in the
descriptive heading of the article, it says nothing about the negative obligation to
respect human rights, which does not mean that this obligation does not exist.
Indeed, many human rights treaties with jurisdiction clauses explicitly refer only to
the positive obligations of the states parties.
For example, all of the nine jurisdiction clauses in the CAT denote the scope of a
positive obligation. Article 2(1) provides that ‘[e]ach State Party shall take effective
legislative, administrative, judicial or other measures to prevent acts of torture in any
territory under its jurisdiction’ (emphasis added); Articles 5(1)(a), 5(2), and 7(1)
require states to criminalize and prosecute torture on the basis of the territoriality
and universality principles; Articles 11, 12, and 13 require states to review inter-
rogation rules for the purpose of preventing torture, ensure an effective investiga-
tion, and provide remedies to individuals; while Article 16 requires states to prevent
cruel, inhuman, and degrading treatment, all in ‘any territory under its jurisdic-
tion’. Notably, these provisions do not expressly say that the state as such has the
negative obligation not to torture individuals or treat them inhumanely, probably
because it was obvious that such an obligation existed, yet it would have been
somewhat impolitic to spell it out. Similarly, Article 3 CERD provides that ‘States
Parties particularly condemn racial segregation and apartheid and undertake to
prevent, prohibit and eradicate all practices of this nature in territories under their
jurisdiction’ (emphasis added).
The treaties which do explicitly mention the obligation to respect are those
whose jurisdiction clauses are to a greater or lesser extent based on Article 2(1)
ICCPR, which provides that ‘[e]ach State Party to the present Covenant undertakes
to respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant’. The grammatically
more natural interpretation of this wording would be to say that the jurisdiction
threshold applies to both the obligation to respect and to the obligation to ensure.
This interpretation is however not the only plausible one—Article 2(1) could also
be read as limiting the jurisdiction threshold only to the obligation to ensure, which
would be consistent with its object and purpose.273 Article 2(1) CRC and Article 7
of the Migrant Workers Convention are similar in this respect. Notably, however,
Article 1(1) ACHR stipulates that the ‘States Parties to this Convention undertake
to respect the rights and freedoms recognized herein and to ensure to all persons
subject to their jurisdiction the free and full exercise of those rights and freedoms’
(emphasis added). This formulation could quite comfortably be seen as imposing a
jurisdictional threshold for the obligation to ensure alone.
Coming back to the treaties which do not mention the obligation to respect
explicitly, most importantly the ECHR, that particular obligation is either spelled
out in provisions which guarantee specific rights, or can if necessary be implied into
the content of the treaty in question. Crucially, if the negative obligation to respect
human rights generally, or for example the obligation not to torture specifically, is
implicitly read into the treaties, there is no reason why it should depend on the
same jurisdictional threshold of application as the positive obligation to secure or
ensure.
The best authority for these points is the ICJ’s merits judgment in the Bosnian
Genocide case.274 Just like the CAT, which does not say in so many words that
states will be responsible if their organs or agents commit torture, so the Genocide
Convention does not explicitly provide for state responsibility for the commission
of genocide. Thus, Article I of the Convention obliges states to prevent and punish
genocide, while other provisions elaborate on these requirements. Both at the
preliminary objections and at the merits stage of the case the FRY/Serbia disputed
the existence of a separate state obligation under the Convention not to commit
genocide, asserting that the Convention was a classical international criminal law
treaty, dealing with crimes committed by individuals, not states. All the Conven-
tion did, in Serbia’s view, was to require states parties to criminalize in their
domestic law the crimes that it defines, and then prosecute the perpetrators of
these crimes. Article IX of the Convention, which does mention the responsibility
of states for genocide, was, in Serbia’s argument, merely a compromissory clause
which did not impose any additional substantive obligations upon states parties.
The Court first reasoned that Article I of the Convention is not merely hortatory
or purposive, and that ‘in particular its undertaking to prevent, creates obligations
distinct from those which appear in the subsequent Articles [of the Convention]’ so
that the ‘the Contracting Parties have a direct obligation to prevent genocide’.275
It then held as follows:
The Court next considers whether the Parties are also under an obligation, by virtue of the
Convention, not to commit genocide themselves. It must be observed at the outset that such
an obligation is not expressly imposed by the actual terms of the Convention. The Applicant
273
See, e.g., Cerone, above note 268, at 124; R. Künnemann, ‘Extraterritorial Application of the
International Covenant on Economic, Social and Cultural Rights’, in Coomans and Kamminga 201, at
227–99.
274
Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment,
27 February 2007 (hereinafter Bosnian Genocide merits judgment).
275
Ibid., paras 162, 165.
has however advanced as its main argument that such an obligation is imposed by Article IX,
which confers on the Court jurisdiction over disputes ‘including those relating to the
responsibility of a State for genocide or any of the other acts enumerated in Article III’.
Since Article IX is essentially a jurisdictional provision, the Court considers that it should
first ascertain whether the substantive obligation on States not to commit genocide may
flow from the other provisions of the Convention. Under Article I the States parties are
bound to prevent such an act, which it describes as ‘a crime under international law’, being
committed.
The Article does not expressis verbis require States to refrain from themselves committing
genocide. However, in the view of the Court, taking into account the established purpose of
the Convention, the effect of Article I is to prohibit States from themselves committing
genocide. Such a prohibition follows, first, from the fact that the Article categorizes genocide
as ‘a crime under international law’: by agreeing to such a categorization, the States parties
must logically be undertaking not to commit the act so described. Secondly, it follows from
the expressly stated obligation to prevent the commission of acts of genocide. That obliga-
tion requires the States parties, inter alia, to employ the means at their disposal, in
circumstances to be described more specifically later in this Judgment, to prevent persons
or groups not directly under their authority from committing an act of genocide or any of
the other acts mentioned in Article III.
It would be paradoxical if States were thus under an obligation to prevent, so far as within
their power, commission of genocide by persons over whom they have a certain influence,
but were not forbidden to commit such acts through their own organs, or persons over
whom they have such firm control that their conduct is attributable to the State concerned
under international law. In short, the obligation to prevent genocide necessarily implies the
prohibition of the commission of genocide.276
The Court thus concluded that the ‘Contracting Parties to the Convention are
bound not to commit genocide, through the actions of their organs or persons or
groups whose acts are attributable to them’.277 It then extended the same reasoning
to crimes ancillary to genocide defined by Article III of the Convention, that is
conspiracy to commit genocide, direct and public incitement to genocide, attempt
to commit genocide, and complicity in genocide.278
Turning back to human rights treaties, to my mind the Article 2(1) CAT
obligation of the state ‘to prevent acts of torture in any territory under its jurisdic-
tion’ necessarily implies the state’s obligation to itself refrain from torture, just as
with the Genocide Convention. More generally, the Article 1 ECHR obligation to
secure human rights implies the obligation to respect them. That implication does
not, however, necessarily require the same threshold for its existence, that of state
jurisdiction over territory.
Thus, for example, in the Bosnian Genocide case the ICJ thought that the
obligation not to commit genocide had no territorial limitation. States were
implicitly prohibited from committing genocide anywhere in the world. The
Court had the same view with regard to the positive obligation to prevent, an
276
Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Judgment, 27 February 2007 (hereinafter Bosnian Genocide merits judgment), para. 166 (paragraph
breaks added).
277 278
Ibid., para. 167. Ibid.
obligation of states to exercise due diligence and ‘employ all means reasonably
available to them, so as to prevent genocide so far as possible’,279 saying that ‘[t]he
substantive obligations arising from Articles I and III are not on their face limited
by territory. They apply to a State wherever it may be acting or may be able to act in
ways appropriate to meeting the obligations in question.’280
However, in his separate opinion Judge Tomka forcefully argued that the
positive obligation to prevent should be limited territorially. According to him,
[U]nder Article I of the Genocide Convention the State does have an obligation to prevent
genocide outside its territory to the extent that it exercises jurisdiction outside its territory, or
exercises control over certain persons in their activities abroad. This obligation exists in
addition to the unequivocal duty to prevent the commission of genocide within its territory.281
In essence, Judge Tomka argued for the imposition of a threshold criterion on the
obligation to prevent—state jurisdiction over a territory—the same threshold as in
human rights treaties. Under his approach, a state would have to exercise effective
overall control of an area in which there is a serious risk of genocide being
committed by some other actor in order for its obligation to prevent genocide to
arise. His argument was in essence one of policy—that a state should be expected to
prevent genocide only when it had territorial jurisdiction, because that obligation
was much more onerous then the simple obligation to refrain from committing
genocide.282
My point is simply this—there is no inherent contradiction in implying, where
necessary, the negative obligation to respect human rights into the relevant treaties
and that obligation having a broader, territorially unlimited scope of application
than the positive duty to secure or ensure human rights, or prevent violations
thereof. Thus, under the CAT for example, we could say that the state has the duty
to prevent torture only in territories under its jurisdiction, but that it has the
obligation to itself refrain from torturing in all circumstances. Likewise, under the
ECHR, the state’s obligation to secure human rights would be limited to areas
under the state’s effective overall control, but its duty to respect human rights
would apply everywhere, without any territorial limitation. For example, the
ECHR would apply to the taking of property by the UK within the UK of a
person residing in Monaco, whether in law or merely in fact.
C. Prophylactic and procedural positive obligations

Let me again emphasize that I am not advocating a strict separation between negative
and positive obligations. Rather, I am arguing for a separation between those posi-
tive obligations which require control over territory in order to be effective, such as the
obligation to prevent inhuman treatment or secure human rights generally even from
279 280
Ibid., para. 430. Bosnian Genocide merits judgment, para. 183.
281
Bosnian Genocide merits judgment, Separate Opinion of Judge Tomka, para. 67.
282
For more on the territorial scope of application of the Genocide Convention, see M. Milanovic,
‘Territorial Application of the Convention and State Succession’, in P. Gaeta, ed., The UN Genocide
Convention: A Commentary (Oxford University Press, 2009), 473.
third parties, and those obligations whose effectiveness depends only on the state’s
control over its own agents. The practice of the European Court and other human
rights bodies has long recognized that some positive obligations are of a proce-
dural or prophylactic nature.283 Thus, for example, in the context of the right to
life, the state has the negative obligation not to take life unjustifiably, but also the
positive obligation to conduct an independent and effective investigation into a
possible taking of life by its own agents, e.g. the police or the armed forces. As
explained by the House of Lords,
The European Court has also interpreted article 2 as imposing on member states a
procedural obligation to initiate an effective public investigation by an independent official
body into any death occurring in circumstances in which it appears that one or other of the
foregoing substantive obligations has been, or may have been, violated and it appears that
agents of the state are, or may be, in some way implicated.284
In Lord Bingham’s view, ‘[t]his procedural duty does not derive from the express
terms of article 2, but was no doubt implied in order to make sure that the
substantive right was effective in practice’.285 This procedural obligation is, how-
ever, not the same as the other positive aspect of Article 2, which flows from the
state’s obligation to secure human rights, namely ‘to establish a framework of laws,
precautions, procedures and means of enforcement which will, to the greatest
extent reasonably practicable, protect life’.286 That obligation is much more far-
reaching, as it requires the state to prevent and investigate even acts of purely private
violence, in which the agents of the state are not implicated at all.
Therefore, in my view, the first category of positive obligations, which exist
solely to make the state’s negative obligations truly effective, should apply co-
extensively with the negative obligations themselves. On the other hand, those
positive obligations which flow from the state’s duty to secure or ensure human
rights or prevent violations thereof—say prevent private violence or discrimina-
tion—require a threshold that sets out the limits of realistic compliance. And that
threshold is precisely state jurisdiction, i.e. control over territory.
On the other hand, the intensity of these obligations also differs; a state has an
absolute duty to investigate violations of human rights committed by its own
agents, or committed against persons in its custody.287 It also has to provide
persons whom it deprives of liberty with food, clothing, or health care, even though
it might not have such obligations towards the general population.288 However,
283
See generally Mowbray, above note 124.
284
R. (Middleton) v. West Somerset Coroner [2004] 2 AC 182, para. 3 (citing Strasbourg case law).
285
Gentle, para. 5 (per Lord Bingham).
286
Middleton, para. 2 (citing Strasbourg case law).
287
See, e.g., Selmouni v. France [GC], App. No. 25803/94, Judgment, 28 July 1999.
288
Even a system which has an extremely limited acceptance of positive obligations generally, such
as the one in the United States—see e.g. DeSheaney v. Winnebago, 489 U.S. 189 (1989)—recognizes
that the state may accrue positive obligations towards an individual if it acts beforehand so as to restrict
or affect the rights or liberty of the individual concerned, for example by incarceration. In the words of
the US Supreme Court, ‘elementary principles establish the government’s obligation to provide
medical care for those whom it is punishing by incarceration’ as ‘it is but just that the public be
required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for
when it comes to its positive obligations with regard to purely private conduct, they
are indeed more far-reaching in scope but are also more flexible in content. In the
words of the European Court in Osman, they must not ‘impose an impossible or
disproportionate burden on the authorities’.289
We can thus distinguish between several kinds of positive obligations under
human rights treaties, and this distinction should have a bearing on their extrater-
ritorial application. To make this discussion somewhat less abstract, let us go back
to Al-Skeini and the five applicants killed by British troops on patrol. Assume, for
the sake of the argument, that even though the killings took place in British-
occupied Basra, because of the strength of the insurgency Basra could not be
qualified as an area under the UK’s effective overall control,290 and was hence
outside its jurisdiction. Even so, in my view, the UK would still have not only the
negative obligation to refrain from depriving the five applicants of life unjustifiably,
but would also have the positive procedural obligation to conduct an effective
investigation into their killing. Its existence depends solely on the UK’s own
involvement in the killing, and in order to comply with it the UK need not do
anything more than investigate the conduct of its own troops, which it is in
principle perfectly able to do. However, were the killings actually done by third
parties, be they insurgents or indeed the soldiers of an allied country, the UK would
have had no obligation to investigate or prevent the deaths, since they took place in
an area outside its jurisdiction, and it would in fact be exceedingly difficult, if not
impossible, for the UK to conduct an effective investigation without actually having
control over the territory.291
Or, take again the example of the assassination of Alexander Litvinenko in
London, ostensibly with Russian involvement. The killing clearly took place
outside Russia’s jurisdiction, if jurisdiction is conceived of territorially. Nonethe-
less, Russia would still have the obligation to investigate it, to the extent that a
credible case can be made that its own agents were involved in Litvinenko’s death,
for example by providing the killers with polonium, the radioactive substance with
which Litvinenko was poisoned. If, however, such a credible case could not be
made, and on the evidence available there was no reasonable suspicion that
Litvinenko’s death was anything other than a purely private act, then it would
himself ’. Estelle v. Gamble, 429 U.S. 97, 102–4 (1976). See also Farmer v. Brennan, 511 U.S. 825
(1994).
289
Osman, para. 116 (emphasis added).
290
See above, Section 2.C.3.
291
I am not denying that the UK might be faced with serious evidentiary and forensic difficulties
even when investigating the conduct of its own troops in a territory outside its control, e.g. because it
does not have access to the crime scene. In such a situation the prophylactic positive obligation to
investigate should again be interpreted flexibly, so that the UK is obliged to do only what it can in fact
do. Above all, however, the UK would be expected to put in place reasonable safeguards and
procedures before it mounts a military operation that would allow it to investigate allegations of
misconduct by its own troops.
only be the UK which would have the obligation to investigate the murder since it
took place within its jurisdiction.292
Similarly, on the facts of Bankovic, the respondent states should have been asked
by the Court to justify on the merits their killing of individuals who were not
within their jurisdiction territorially conceived, as the killing implicates the states’
negative obligation to which some positive obligations may attach. In doing so, the
Court should have taken into account the relevant rules of international humani-
tarian law and the extraordinary circumstances of armed conflict, and adopted a
more flexible approach to Article 2 than in a situation of normalcy. As I have argued
above, however, there would be limits to that flexibility, motivated by the need to
preserve the integrity of the ECHR regime.293 The Court would also have encoun-
tered serious evidentiary difficulties on the merits, but it has managed to deal with
such difficulties in the past, as with Chechnya, for example by equitably distribut-
ing the burden of proof between the parties. Thus, though in my view the correct
result in Bankovic would probably have been that the killings were unlawful, it is far
from obvious that this should have been the case. The respondent states would have
a case to answer, but they would also have something to answer the case with.
Or, if we take the example of the pending Aerial Herbicide Spraying case before
the ICJ while taking the facts alleged by Ecuador as proven,294 Colombia would be
responsible for violating the rights of Ecuadorian residents adversely affected by its
spraying operation, as the operation was conduct by its own agents or on its own
behalf. Colombia would not, however, have the same obligation under human
rights treaties with regard to pollution or herbicides used by purely private actors
operating within its territory and having effects in Ecuador. Similarly, if we consider
292
See, in that regard, W v. United Kingdom (dec.), App. No. 9348/81, (1983) 32 DR 190, a
Commission admissibility decision. The applicant’s husband was killed in the Republic of Ireland,
while her brother was killed in Northern Ireland. She complained that the United Kingdom had failed
to secure her husband’s and brother’s right to life. With respect to the husband, who was killed in the
Republic of Ireland, the Commission declared the application to be incompatible ratione loci (at 199):
The Commission further considers that, in determining its competence ratione loci in
relation to the jurisdiction of the United Kingdom, regard must be had to the position,
at the relevant time, of the direct victim (i.e. the applicant’s husband) and not of the indirect
victim (the applicant herself) of the alleged violation of the Convention. It finds that, at the
time of his death at G. Sales Yard, in the Republic of Ireland, the applicant’s husband was
not ‘within the jurisdiction’ of the United Kingdom in the sense of Article 1 of the
Convention. The Commission has also considered whether any active measures by United
Kingdom authorities could have contributed to the murder of the applicant’s husband in
the Republic of Ireland. However, it notes that even the applicant has not alleged any such
action by these authorities.
Note how the Commission applied a spatial model of jurisdiction—the victim was not within UK’s
jurisdiction because the killing took place in Ireland, and therefore the UK had no obligation to
investigate it. However, the Commission did entertain the possibility that the result could have been
different if the applicant had shown that UK authorities were involved in the murder.
293
A further problem is that even though Article 15(2) ECHR permits derogations from Article 2 ‘in
respect of deaths resulting from lawful acts of war’, which could serve to add more flexibility to an Article
2 analysis in times of armed conflict, no such derogation was made by ECHR states parties engaging in the
bombing of Serbia. See also Chapter V below.
294
See Section 1.F above.
the scenarios of extraterritorial complicity that we examined above, with say a UK

intelligence officer feeding questions and data to a Pakistani torturer interrogating a
terrorist suspect in Pakistan,295 the UK would in my view have a territorially
unlimited negative obligation under Article 3 ECHR not to be complicit in the
torture of any person anywhere in the world. Accordingly, it would also have the
positive obligation to investigate complicity in torture by its own agents wherever it
might occur. It would not, however, have such an obligation with regard to an
extraterritorial human rights violation in which its own agents did not participate at
all, unless the act was committed in a territory under its effective overall control.
D. Reconciling universality and effectiveness

To my mind, this third model provides us with the best balance between univer-
sality and effectiveness with regard to the extraterritorial application of human
rights treaties. Instead of being artificially limited, universality is brought to its
logical (and moral) conclusion. States would have the same obligation to respect
human rights both within and outside their territories. Whether they use drones for
the targeted killings of suspected terrorists, use force in more conventional military
operations, abduct or detain combatants or civilians or put them on trial, poison
the crops of innocent farmers, or enforce their laws, states would still have to abide
by the restrictions that human rights law places on the arbitrary exercise of their
power, and do so regardless of territorial boundaries. When, however, states are
expected to do more than just refrain from adversely affecting the lives of others,
when they need to take positive steps, from preventing domestic violence296 and
safeguarding private property to protecting lawful public assemblies297 and the free
exercise of religion,298 they cannot fulfil such obligations effectively without having
the tools to do so. Such obligations should, therefore, be territorially limited to
areas and places under the state’s jurisdiction.
This model would, in principle, be able to accommodate all of the effectiveness
concerns that generally militate against the extraterritorial application of human
rights instruments, which I have examined above in some detail: flexibility, impact,
regime integrity, clarity, and predictability.299 Flexibility is beyond doubt the most
important, and can only be achieved on the merits and substance of each concrete
instance of extraterritorial application to a specific set of facts. In the transition from
threshold to substantive issues lies both the appeal of this model, and its greatest
risk. It would be unreasonable to contend that most human rights obligations can
be applied in exactly the same way in peacetime in the state’s own territory, and
during a military occupation or in an active battlefield abroad. Full account must be
295
See Section 1.D above.
296
See, e.g., Opuz v. Turkey, App. No. 33401/02, Judgment, 9 June 2009.
297
See, e.g., Plattform ‘Ärzte für das Leben’ v. Austria, Judgment, 21 June 1988, Ser. A, No. 139,
(1991) 13 EHRR 204.
298
See, e.g., 97 members of the Gldani Congregation of Jehovah’s Witnesses and 4 others v. Georgia, App.
No. 71156/01, Judgment, 3 May 2007.
299
taken of the extraordinary circumstances in which the treaty is being applied
extraterritorially, and substantive adjustments need to be made in order for extra-
territorial application to truly become realistic and effective—for example, through
the greater use of international humanitarian law in interpreting the norms of
human rights law.
But, as I have said, though a price must be paid if universality is not to descend
into utopia, that price must not be too steep. There still must be a point to
extraterritorial application—it must have an actual impact—and the integrity of
the human rights regime as a whole must not be compromised by its being watered
down too much. Again, both of these concerns can only be addressed by examining
the numerous substantive issues arising with extraterritorial application, such as
targeted killings or preventive detention, which are as such beyond the scope of this
study. My only point here is that such concerns can be addressed effectively, and
that the extraterritorial application of human rights treaties can be both realistic and
worthwhile. Obviously, the extension of the negative obligation to respect human
rights that I propose can by itself have an enormous impact, as it would at the very
least require some sort of justification by states for their acts outside their territory
which violate the rights of countless people.
The third model also sufficiently addresses the Bankovic concern that human
rights treaties would be compromised if state obligations were divided and tailored
to match each specific extraterritorial action. The most onerous obligation by far,
that to secure or ensure human rights, is strictly confined to areas over which states
have effective control. The treaties are not chopped up and divided. Rather, they
require states to respect human rights when they are in the position to do so.
Likewise, by allowing us to have those substantive disputes which are truly
important, on matters like targeted killings or security detention, and by detaching
these disputes from the preliminary threshold question of extraterritorial applica-
tion, the third model would lead to a great simplification of the case law on
extraterritorial application, its grounding in principle, and a rejection of casuistry.
In other words, we would be able to tell with some clarity when human rights
treaties actually apply extraterritorially—something that we are in all honesty
incapable of doing with the present state of the jurisprudence, at least when it
comes to the ECHR. That the current lack of certainty makes the lives of judges
and academics more difficult is the least of its problems; it directly undermines the
authority of the Court, and makes other participants in the system—above all
states—unable to adequately factor the applicability of human rights treaties
extraterritorially into their own policy-making.300
300
See also Miller, above note 192 at 1230, arguing that
[t]his uncertainty creates the twin risks that states will either under-estimate the jurisdic-
tional scope of the Convention and violate human rights which might otherwise be
protected, or that they will over-estimate the Convention’s reach and refrain from actions
which are strategically essential. Either way, the Court’s doctrinal ambivalence prevents
signatory states from accurately weighing the legal liabilities associated with particular
extraterritorial actions, to the detriment of both human rights protection and security.
I should also say that I am aware that it is impossible to conclusively test whether
my proposed model strikes the best balance between universality and effectiveness
without actually trying it out. From the perspective of the European human rights
system, whose strength derives precisely from the fact that it is the European human
rights system, the risk of a flood of litigation doing it irreparable damage may be
seen by some—particularly judges—as being too great. That risk, it needs to be
said, is a realistic one.301 I maintain, however, that the European Convention is
sufficiently flexible, and that the tools given to the European Court are sufficiently
powerful, to minimize that risk to a great extent. The floodgates will not open, and
the European system will not be overwhelmed—at least not any more than it
already is—just because the Court would no longer be able to use the preliminary
question of extraterritorial application to avoid a number of vexing and controver-
sial substantive issues. Nothing would prevent the Court, for example, from
declaring inadmissible those cases which it considers manifestly ill-founded, after
conducting even a deferential substantive analysis. And though the risk may be real,
it is one worth taking, if universality of human rights is to have any meaning.
Whether this will actually happen will depend on those who sit on the European
Court of Human Rights, and on whether it is, in their view, the ‘European’ or the
‘Human Rights’ bit of their Court and Convention that matters most.
Finally, to the extent that my textual argument in favour of the third model is
not considered to be persuasive, or that its adoption would require too radical a
departure from existing jurisprudence, I would (purely as a pragmatic matter) not
be opposed to the adoption as a substitute of the personal model of jurisdiction as
state authority and control over individuals jointly with the spatial model. If the
personal model is considered to be textually necessary, then it should apply to the
negative obligation to respect, while the spatial model would apply to the positive
obligation to secure or ensure human rights.302 Indeed, if we took another look at
the various cases applying the personal model, we would see that they generally deal
only with negative obligations of states, or with procedural or prophylactic positive
obligations. So long as the personal model is not in any way limited, its application
would lead to the same result as my third model, just with the added pretence of
applying a jurisdictional threshold to negative obligations when no such threshold
in fact exists. This would be an adequate solution for interpreting the jurisdiction
clauses in some treaties, such as in the First Optional Protocol to the ICCPR, which
limit the right to individual petition only to those persons subject to the state’s
jurisdiction. This would also be an adequate answer to Lord Brown’s challenge in
Al-Skeini that the spatial model would become redundant if the personal one were
to be adopted, since each would apply to different types of state obligations.
301
See, in that regard, Miller, above note 192, at 1235.
302
For a similar contextual approach, see Lawson, above note 172, at 120, as well as R. Lawson,
‘Really out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict under the
ECHR’, in A. Buyse (ed.), Margins of Conflict: The ECHR and Transitions to and from Armed Conflict
(Intersentia, 2010), 57; Lubell, above note 50, at 227 et seq; S. Skogly, Beyond National Borders: States’
Human Rights Obligations in International Cooperation (Intersentia, 2006), at 66 et seq, 206.
Having thus outlined the model of extraterritorial application that I would
prefer, I again do not wish to be taken as arguing that this model is free of all
weaknesses. In some cases at least, the distinction between positive and negative
obligations is not as clear-cut as I have made it seem. The same goes for the
distinction between positive obligations arising from the duty to secure or ensure
human rights, which I would subject to a threshold of territorial jurisdiction, and
those which are prophylactic or procedural in nature and thus appurtenant to
negative obligations, which I would not. As with most things, there would be grey
areas in which my model would not provide a clear answer. And there probably
would be areas in which my model would give answers that would run counter to
our legal or moral intuitions regarding the territorial scope of human rights treaties.
Even so, in my view it provides a principled foundation that allows us to move from
the question of when human rights treaties apply extraterritorially to the far more
important and difficult question of how they should do so.
5. The Special Problem of the ICCPR

Having discussed the available models of extraterritorial application, I will briefly
turn back to an issue that I have mentioned but until now have more or less
studiously avoided—the proper interpretation of Article 2(1) ICCPR, providing
that ‘[e]ach State Party to the present Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant’. As we have seen, this clause presents two
interpretative difficulties: first, whether the obligation to respect human rights is
modified and limited by the remainder of the clause, or whether it is only the
obligation to ensure which is subject to limitation; and secondly, whether that
limitation is conjunctive or disjunctive, i.e. whether individuals have to be both
within a state’s territory and subject to its jurisdiction to have ICCPR rights, or is it
rather that states have to guarantee these rights to all individuals within their
territories and to those subject to their jurisdiction? As for the former issue, I
have just explained why there is in my view no bar to reading Article 2(1) as
imposing no limitation on the obligation to respect, similarly to Article 1 ACHR.
As for the latter, I have indicated several times how the Human Rights Committee
has now espoused the more expansive disjunctive interpretation of Article 2(1),303
and it will come as no surprise to the reader that this is an interpretation I agree with
in principle—but let me now offer my reasons for doing so, other than that this is
simply the result that I prefer as a matter of policy.
First, I think it fair to say that the conjunctive reading of Article 2(1) is textually
or grammatically more natural, and interpretation under Article 31 VCLT does of
course start from the text. This does not mean, however, that this is the only
303
See Buergenthal, above note 265; Human Rights Committee, General Comment No. 31, para. 10:
‘States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all
persons who may be within their territory and to all persons subject to their jurisdiction.’
‘ordinary’ or ‘plain’ meaning of the text, as e.g. argued by the United States in
its appearances before the Human Rights Committee,304 or by Michael Dennis in
an academic setting.305 The use of grammatical particles such as ‘and’ or ‘or’
frequently leads to ambiguity, and accordingly to more than one available ‘plain’
or ‘ordinary’ meaning of the text. That ambiguity may be resolved by the (gram-
matical) context in which the words appear,306 but there is nothing in Article 2(1)
which assists us in that regard. Recourse must thus be had to the object and purpose
of the treaty, which as we have seen is founded upon the inherent dignity of all
human beings and the universal nature of human rights. Although the conjunctive
reading may be grammatically the more natural, the disjunctive reading is certainly
the one more consonant with the treaty’s object and purpose.
Again, there is nothing truly novel in regarding words such as ‘and’ or ‘or’ as
ambiguous and interchangeable in certain respects, if not generally. Not only do
such ambiguities frequently arise in everyday linguistic usage,307 but courts have a
long history of addressing them. Almost 150 years ago the US Supreme Court
declared that
[i]n the construction of statutes, it is the duty of the court to ascertain the clear intention of
the legislature. In order to do this, courts are often compelled to construe ‘or’ as meaning
‘and,’ and again ‘and ’ as meaning ‘or.’308
It is precisely in the search for the intent of the legislator (as problematic as the
whole idea of legislative intent is in the context of interpretation) and the purpose
that a legal enactment is supposed to achieve that the ‘[d]isjunctive “or” and the
conjunctive “and” may be interpreted as substitutes’.309 And in the international
context, for example, it is the very same US administration which rejected a
disjunctive reading of the ‘and’ in Article 2(1) ICCPR which employed a similar
disjunctive reading of an ‘and’ in a rather important Security Council resolution.310
304
This argument was developed to the fullest in the US second and third periodic reports to the
Human Rights Committee, submitted in one document, as UN Doc. CCPR/C/USA/3, 28 November
2005, Annex I.
305
See M. Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed
Conflict and Military Occupation’, (2005) 99 AJIL 119, at 122 et seq.
306
See R. Gardiner, Treaty Interpretation (Oxford University Press, 2008), at 178 et seq.
307
If, for example, I were to ask a guest of mine: ‘would you like some milk and sugar in your coffee?’ we
would not normally interpret that question as presenting my guest only with the options of taking both the
milk and the sugar or neither, even though ‘and’ is conjunctive in nature. Similarly, if we replaced the ‘and’
in the question with an ‘or’, we would not interpret it as precluding my guest from taking both milk and
sugar with his coffee, though the disjunction through an ‘or’ is normally regarded as being exclusive.
(I imagine that not even lawyers and logicians ask their guests whether they would like milk ‘and/or’ sugar
with their tea or coffee.) The ambiguity of this sentence is not resolved by the grammatical context in which
the words were uttered, but by their social context—i.e. by the fact that plenty of people drink their coffee
only with milk, or only with sugar, and that it would be quite impolite not to offer these options to one’s
guest. Likewise, in treaty interpretation it is the wider context, not merely the grammatical one,
taken together with other considerations such as object and purpose, which can help us resolve such
ambiguities.
308
United States v. Fisk, 70 U.S. (3 Wall.) 445, 447 (1865).
309
N.J. Singer, 1A Statutes and Statutory Construction (West, 6th edn, 2002), } 21:14.
310
See OLC, Memorandum Opinion for the Counsel to the Vice President: Whether False
Statements or Omissions in Iraq’s Weapons of Mass Destruction Declaration Would Constitute a
This transformation of an ‘and’ into an ‘or’ might be regarded as a transparent
lawyer’s trick, enabling him or her to get to the policy result that he or she wants.
Depending on the circumstances, that might even be true. But while interpretation
is not a process that should in principle be result-driven, it is equally true that the
object and purpose of a treaty are considerations that must be taken into account
when interpreting it, and that they may tend to prefer one result over another. In
other words, an interpretation of the ICCPR which favours universality and human
dignity is within the limits of textual vagueness or ambiguity by definition prefera-
ble to an interpretation which runs against the grain of the treaty.
This now brings me to the ICCPR’s travaux préparatoires, on which the United
States has relied in particular in support of its argument for a strictly territorial
application of the treaty.311 In the US view, the travaux clearly demonstrate that
the ICCPR was to have no extraterritorial application. It was in fact on a US
proposal that the reference to territory was introduced into Article 2(1), which had
previously contained only a jurisdiction clause, and subsequent attempts by some
parties to have this language deleted were rejected. The US representative during
the drafting of the then single Covenant, Eleanor Roosevelt, explained this wording
in the following terms:
The purpose of the proposed addition [is] to make it clear that the draft Covenant would
apply only to persons within the territory and subject to the jurisdiction of the contracting
states. The United States [is] afraid that without such an addition the draft Covenant might
be construed as obliging the contracting states to enact legislation concerning persons, who
although outside its territory were technically within its jurisdiction for certain purposes. An
illustration would be the occupied territories of Germany, Austria and Japan: persons within
those countries were subject to the jurisdiction of the occupying states in certain respects,
but were outside the scope of legislation of those states. Another illustration would be leased
territories; some countries leased certain territories from others for limited purposes, and
there might be questions of conflicting authority between the lessor nation and the lessee
nation.312
In the US argument, this explanation not only conclusively excludes the extraterri-
torial application of the ICCPR to occupied territories, but also with regard to
leased territories, foremost among them Guantanamo.
A comprehensive reading of the travaux, however, paints a different picture.313
Rather than giving us clarity, it provides us with an ample dose of confusion and
doubt, as is so often the case when having recourse to preparatory work. Even the
passage quoted above shows us that the US negotiators at the time were not
concerned so much with the application as such of the ICCPR to occupied
‘Further Material Breach’ under U.N. Security Council Resolution 1441, 7 December 2002, available
at <http://www.justice.gov/olc/2002/materialbreach.pdf>.
311
See above note 304.
312
See UN Doc. E/CN.4/SR.138, at 10.
313
See generally N. Rodley, ‘The Extraterritorial Reach and Applicability in Armed Conflict of the
International Covenant on Civil and Political Rights: a Rejoinder to Dennis and Surena’, (2009)
EHRLR 628; N. Lubell, above note 50, at 195 et seq; M. Satterthwaite, ‘Rendered Meaningless:
Extraordinary Rendition and the Rule of Law,’ (2007) 75 Geo. Wash. L. Rev. 1333, at 1361 et seq.
territories, but with a purported obligation to legislate for such territories. This is
the result that they wanted to avoid. In truth, bearing in mind the case law we
examined, no such general obligation would exist even under the most expansive
reading of the obligation to ensure human rights—indeed, as we have seen, Article 43
of the Hague Regulations is designed precisely to prevent occupants from modifying the
laws of the occupied territories, except when absolutely necessary to do so.314 In some
cases, however, the obligation to ensure might require the occupant to alter the legal
system in order to effectively maintain peace and security in the occupied territory, or to
fulfil other human rights commitments, and in exceptional circumstances this obligation
might lead to an unresolvable norm conflict. Similarly, the US concern with leased
territories was that the extension of human rights obligations might lead to questions of
‘conflicting authority between the lessor nation and the lessee nation’, i.e. to norm
conflict. The US desires aside, however, whether the language inserted into the treaty
actually successfully manages to avoid all such norm conflicts is a different matter—
I think it does not.
Other sections of the travaux tell us that the drafters wanted to avoid states
parties assuming the obligation to ensure the rights of their own nationals in a
foreign country.315 They did not want the states parties to have to do the impossi-
ble, for example to ensure the right to a fair trial of their national before a foreign
court.316 As the ICJ itself said in the Wall case,
The travaux préparatoires of the Covenant confirm the [Human Rights] Committee’s
interpretation of Article 2 of that instrument. These show that, in adopting the wording
chosen, the drafters of the Covenant did not intend to allow States to escape from their
obligations when they exercise jurisdiction outside their national territory. They only
intended to prevent persons residing abroad from asserting, vis-à-vis their State of origin,
rights that do not fall within the competence of that State, but of that of the State of
residence (see the discussion of the preliminary draft in the Commission on Human Rights,
E/CN.4/SR.194, para. 46; and United Nations, Official Records of the General Assembly, Tenth
Session, Annexes, A/2929, Part II, Chap. V, para. 4 (1955)).317
The travaux emphatically do not offer us what we most need—a set of first
principles as to the proper interpretation of Article 2(1). They simply do not
provide conclusive evidence that the drafters wanted a strictly conjunctive reading
that would have limited the application of the treaty solely to those territories over
which the states parties had title, and that they did so contrary to the basic purpose
of the treaty that they themselves professed, that of universality. Nor do the travaux
tell us, for example, whether the word ‘jurisdiction’ refers to effective overall control
314
See above, Chapter III, Section 9, and below, Chapter V.
315
See M. Bossyut, Guide to the ‘travaux préparatoires’ of the International Covenant on Civil and
Political Rights (Nijhoff, 1987), at 53–5, and the sources cited therein.
316
See Nowak, above note 170, at 43: ‘the adoption of these words was intended to avoid
obligating States parties to protect persons under their jurisdictional authority but outside their
sovereign territory. This would be possible only through diplomatic channels’; Lubell, above note
50, at 201: ‘the drafters . . . wished to avoid the risk that the Covenant would create positive duties
outside the scope of a state’s authority and ability to execute such obligations’.
317
Wall, para. 109.
over a territory, or to authority and control over an individual, or to something else
entirely, such as the exercise of legal authority or power or the right to exercise such
power. They only give us glimpses of the particular results or applications of the
treaty that (some) of the states parties wanted to avoid.
But it is not such original expected applications of a treaty which form its legally
binding meaning. Even if, for example, it was clear from the travaux (which it is
not) that states parties did not want the ICCPR to apply during occupation, this
does not exclude the possibility that the language that they employed, as well as the
broader object and purpose of the treaty, do precisely lead to such a result.
Philip Allott famously remarked that a treaty is a ‘disagreement reduced to
writing’.318 I would not go so far as to label the ICCPR itself as such, but its
travaux certainly qualify. I am prepared to concede, however, that if we could by
some necromantic art revive Eleanor Roosevelt and the other drafters of the two
Covenants, and present them one by one with the various scenarios of extraterritor-
ial application that we are concerned with today, they might be disinclined to opt
for an expansive approach. But I would also imagine that if we asked them whether
under the treaties they were drafting Auschwitz would technically not have been
a violation thereof because it was located in occupied Poland, rather than in a
territory over which the German Reich had legal title, it would be very doubtful
that Roosevelt et al. would have found such an interpretation acceptable. And yet
this is precisely what the US position on strict territoriality would entail.
If the disjunctive interpretation of Article 2(1) were to be adopted, what would then
be the purpose of the words ‘within its territory’ that were added to the jurisdiction
clause? Would they not thus be rendered ineffective? Not necessarily. These words
would then make ICCPR obligations more onerous than those under other human
rights treaties, as Article 2(1) would require states to ensure the human rights of
persons within its territory even when that territory is not under its jurisdiction, e.g. if a
foreign state or an insurrectional movement was in control thereof. In other words, à la
Ilascu, states parties would have a positive obligation to ensure the human rights of the
population of their sovereign territories even in the absence of territorial control,
though this obligation would have to be significantly attenuated.
Alternatively, even if the conjunctive reading of Article 2(1) were to be seen as
correct, the application of the ICCPR would not have to be confined only to those
territories over which the state has both title and effective control. As we have seen,
the negative obligation to respect could comfortably be read as being subject to no
territorial limitation. Moreover, though the possessive ‘its’ in ‘within its territory’
implies that a state would indeed need to have title or sovereignty over territory, this
would not necessarily be the only plausible interpretation. In light of the universal-
ity-driven object and purpose of the treaty, the ‘within its territory’ clause could be
read as not requiring title, but control.319 In other words, the combination of the
reference to territory and the reference to state jurisdiction could be taken as setting
318
P. Allott, ‘The Concept of International Law, (1999) 10 EJIL 31, 43.
319
I have argued for a similar reading of Article VI of the Genocide Convention—see Milanovic,
above note 282, at 481–2.
out a spatial test of jurisdiction over territory that would need to be met in order for
the positive obligation to ensure human rights to arise. This interpretation would
hence be consonant with my third model of extraterritorial application.
6. Treaties Without Jurisdiction Clauses
This brings me to the problem posed by treaties which contain no provisions on

their territorial application such as jurisdiction clauses, or have jurisdiction clauses
only for some but not all obligations under the treaty. As we have seen above,320
other than a brief mention of territorial jurisdiction in its Article 14, the ICESCR
contains no jurisdiction clauses. Neither does the CEDAW, while most provisions
of the CERD, particularly Articles 2 and 5 which protect a wide range of substan-
tive rights, do not have any kind of territorial limitation. What then is the
appropriate model of extraterritorial application of such treaties?
There is in principle no need for a one-size-fits-all approach to these treaties.
Each should be evaluated and interpreted on its own merits, with regard to its
specificities in text and object and purpose. However, as I see it, three basic options
present themselves:
(1) The treaty, or particular obligations within it, could be interpreted as being
completely territorially limited. It is hard to see how such a restrictive
approach could ever be justified from the standpoint of universality in the
absence of reasonably clear text to that effect, particularly because state
ability to ensure or secure even the most demanding socio-economic rights
does not depend on title, but on control over territory. Such a restrictive
approach would hence tend to slide into pure apology for legally unre-
strained state power.
(2) The treaty, or particular obligations within it, could be interpreted as being
completely territorially unlimited. This would be an approach akin to the
ICJ’s holding in the Bosnian Genocide case that the obligation to prevent
genocide was territorially unlimited, and required states to exercise due
diligence and ‘employ all means reasonably available to them, so as to
prevent genocide so far as possible’.321 However, even in the context of
the prevention of genocide such a far-reaching obligation is undermined by
its own vagueness. In other contexts, as for instance with regard to socio-
economic rights, this obligation would be even vaguer. What would, for
example, the US or EU exactly need to do to safeguard the right to food of
say the starving population of North Korea? With one or two possible
exceptions, as for example with the Article 2(1) ICESCR obligation to
provide ‘international assistance and co-operation’ for the realization of
socio-economic rights, this approach would tend to slide into utopia.
320
See Chapter I, Section 4.C.
321
Bosnian Genocide merits judgment, para. 430.
(3) Finally, my third model of extraterritorial application could be read into the
relevant treaties so that the negative obligation to respect the rights in
question would be territorially unlimited, while the positive obligations
arising from such treaties would generally require the exercise of territorial
jurisdiction, i.e. effective overall control of an area, as such control is
necessary for their effective realization. Thus, if we take as an example the
Aerial Herbicide Spraying case between Ecuador and Colombia that is
currently pending before the ICJ,322 we could say that Colombia has the
obligation towards the people of Ecuador to respect their right to health and
food, which the herbicide spraying would in principle be capable of violat-
ing. However, Colombia would not have the obligation (other than possibly
as reparation for its prior wrongful act) to actually provide food or health
care services to the population of Ecuador, since it has no jurisdiction over
the relevant parts of Ecuador. Similarly, if we take as another example the
facts of the current Georgia v. Russia dispute, Russian soldiers engaging in
military action on Georgian soil would have had the negative obligation
under Article 2(1)(a) CERD ‘to engage in no act or practice of racial
discrimination against persons, groups of persons or institutions’. However,
in the absence of jurisdiction, i.e. territorial control, Russia would not have
had the positive obligation under Article 2(1)(d) CERD to ‘prohibit and
bring to an end, by all appropriate means, including legislation as required
by circumstances, racial discrimination by any persons, group or organiza-
tion’, in other words to prevent private discrimination.
This discussion is admittedly somewhat simplistic. Each of the treaties in question
is deserving of a fuller account, something that I do not wish to engage in at this
point.323 It is particularly the lack of concrete cases that necessarily makes this
discussion somewhat abstract, but as we have seen, some relevant cases are already
being litigated. As a general matter, however, I believe that as with treaties which
contain jurisdiction clauses, the third model provides the best balance between
universality and effectiveness and could provide a default position even for treaties
without jurisdiction clauses, which could then be modified if the particular circum-
stances of the treaty in question so require.
322
See above, Section 1.F.
323
For literature dealing specifically with the extraterritorial application of treaties guaranteeing
socio-economic rights, see above, Chapter I, note 11.
V
Norm Conflicts, International Humanitarian
Law, and Human Rights Law
1. Introduction
The final chapter of this study will be devoted to exploring the relationship between
international humanitarian law and international human rights law. Why do so
now, and what is the importance of this relationship to our main topic, the
extraterritorial application of human rights treaties?
There are several reasons for examining this relationship before providing a
synthesis or some general conclusions regarding extraterritorial application. First,
as we have already seen, the interaction between IHL and IHRL is a frequent issue
in various scenarios of extraterritorial application of human rights treaties. It is
particularly the theme of norm conflict which is so often woven into the fabric of
the case law on extraterritorial application, as the fear of such conflicts sits heavily
on judges’ minds.1 And it is precisely this motive, this idea or perspective of norm
conflict that I believe has a major role to play in describing the relationship between
IHL and IHRL. Secondly, many of the same policy considerations at play with
regard to extraterritorial application are also at play when it comes to the interface
between these two bodies of law. Much as the tension between universality and
effectiveness determines outcomes with regard to extraterritorial application, so
does the tension between humanitarianism and effectiveness explain the interaction
of IHL and IHRL. Finally, I have argued several times in this study that the
interpretation of human rights treaties in light of IHL can introduce much-needed
effectiveness and flexibility in times of armed conflict so as to make the application
of IHRL realistic and practicable. In this chapter I will therefore not just try to
assess the state of our effort at explaining the relationship between these two bodies
of law, but also attempt to determine its prospects and, crucially, its limits.
At the outset it must be said that this examination of the relationship between
the two bodies of law is not an abstract academic endeavour, but above all a
pragmatic and a practical project that is designed to have a real-life impact.
Together with the question of the extraterritorial application of human rights
treaties, the IHL/IHRL project serves several purposes. The first, and the broadest,
1
is the affirmation of an idea: the law applicable in war is no longer solely a law
between sovereigns, who agree out of grace and on the basis of reciprocity to limit
themselves in their struggles so as to reduce the suffering of innocents. Rather,
human beings embroiled in armed conflict still retain those rights that are inherent
in their human dignity, which are more, not less, important in wartime than in
peacetime, and which apply regardless of considerations of reciprocity between the
warring parties.
Consequently, a more radical purpose of the project (perhaps not universally
shared even among its adherents) is to shift the balance between effectiveness and
humanitarianism, that was struck by states during the drafting of the major IHL
treaties, more in the direction of humanitarianism. In other words, what we as
participants in this project really want to do by examining the relationship between
IHL and IHRL is to further humanize IHL and war generally.2 We do this partly
by using human rights norms to fill the gaps or areas left unregulated or very
sparsely regulated by IHL, for example in regard to non-international armed
conflicts, and partly by trying to change some outcomes that in fact are determined
by IHL by introducing human rights rules and arguments into the equation.3
Finally, a more down-to-earth purpose of the project is the enforcement of IHL
through human rights mechanisms.4 Even if human rights substantively added
nothing to IHL, i.e. if the relationship between IHL and IHRL was such that IHRL
in wartime brought no less, but also no more, protection for individuals than IHL,
there would still be a point in regarding IHL and IHRL as two complementary
bodies of law. IHL, now (jurisdictionally) framed in human rights terms, could be
enforced or its enforcement could be attempted before political bodies, such as the
Human Rights Council or UN political organs more generally, or through judicial
and quasi-judicial mechanisms, such as the ICJ, the European Court of Human
Rights, the UN treaty bodies, or domestic courts.5
In brief, we wish to (boldly) take human rights to places, be they extraterritorial
situations, or those of armed conflict, or both, where, as a matter of practical reality,
no human rights have gone before. Saying openly that we are participating in a
project with pragmatic and transformative ends in mind, rather than engaging in
some sort of abstract discovery of the law, does not mean that we as lawyers are
doing so illegitimately, or that we are usurping the legislative prerogatives of states.
2
See generally T. Meron, ‘The Humanization of Humanitarian Law’, (2000) 94 AJIL 243.
3
This approach of course rests on the assumption that more human rights in the formal sense
would necessarily lead to better outcomes for people on the ground—an assumption which is rarely
defended, and is challenged by Modirzadeh in a powerful recent article—see N. Modirzadeh, ‘The
Dark Sides of Convergence: A Pro-civilian Critique of the Extraterritorial Application of Human
Rights Law in Armed Conflict’, (2010) 86 U.S. Naval War College International Law Studies (Blue
Book) Series 349. Whether this assumption actually holds is an empirical question, and, at that, one
which is very hard to answer. I do not wish to engage with this issue at this time, beyond the several
examples that I raise in the remainder of this chapter.
4
See, e.g., G. Verdirame, ‘Human Rights in Wartime: A Framework for Analysis’, (2008) EHRLR
689, 691.
5
A most effective example is the extensive litigation in UK domestic courts under the Human
Rights Act 1998 arising from the occupation of Iraq.
Norm Conflicts, IHL, and Human Rights Law 231
It is the states themselves that have affirmed the complementary application

of IHL and IHRL, both in the texts of the relevant human rights treaties6 (that
were after all concluded in the aftermath of the most horrible of abuses committed
during an armed conflict, the Second World War), and in their official pronounce-
ments in international fora. States have also greatly contributed to the humaniza-
tion of IHL through the adoption of the 1977 Additional Protocols to the 1949
Geneva Conventions, for example through their provisions on fundamental hu-
manitarian guarantees, or through greater limitations on reprisals.7 As is often the
case, states may not have abided in practice by their commitments as they should
have, but this does not mean that these commitments were not made.
Having said this, as we will see there are limits to what legitimate methods of
interpretation can do to harmonize IHL and IHRL. For human rights-based
arguments to be even remotely persuasive in regard to situations of armed conflict,
and to avoid the impression of a fluffy, utopian human rightist disregard for the
realities of international relations, these arguments must meet certain requirements—
the same requirements of effectiveness that we have already examined with regard
to extraterritorial application: flexibility, impact, regime integrity, and clarity and
predictability.8
As with extraterritorial application, there is a price to be paid for the joint
application of IHL and IHRL. Though it may be our goal to further humanize
IHL, in order to do so we must also be prepared to water down IHRL to make its
application possible and practical. To the extent that war and armed conflict are
accepted as a reality—as they must be, if this project is to make any sense—human
rights norms cannot be applied in a ‘business as usual’ kind of way. Considerations
of effectiveness must always be taken into account.
And as we have also seen above, though human rights have to be watered down
to be applied jointly with IHL, they must not be watered down too much. Not only
would this defy the whole purpose of the exercise, but it would also potentially
compromise the values safeguarded by the human rights regime in peacetime.9
There must, in other words, be caution in applying IHL together with human
6
See the derogation clauses in the major human rights treaties, two of which explicitly mention
‘war’ as a situation in which derogations might be appropriate—Art. 4 ICCPR; Art. 15 ECHR; Art. 27
ACHR. See also Art. 72 of Additional Protocol I to the Geneva Conventions, which refers to ‘other
applicable rules of international law relating to the protection of fundamental human rights during
international armed conflict’, as well as the second preambular paragraph of Additional Protocol II,
referring to ‘international instruments relating to human rights [that] offer a basic protection to the
human person’.
7
For a general overview, see C. Droege, ‘Elective Affinities? Human Rights and Humanitarian
Law’, (2008) 90 IRRC 501, at 503 et seq.
8
9
See also the insightful critique by W. Schabas, ‘Lex Specialis? Belts and Suspenders? The Parallel
Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad
Bellum’, (2007) 40 Israel L Rev 592, who argues that if IHL and IHRL are to be reconciled, IHRL must
develop an IHL-like indifference to the jus ad bellum lawfulness of war, as well as allow the ‘collateral’
killing of civilians regardless of the overall legality of the use of force, and that this abandonment of
pacifism is too high a price to pay for harmony as far as IHRL is concerned.
rights, as it is human rights that might lose something in the process.10 After all, for
all its humanitarian ethos, IHL is still a discipline about killing people, if in a
civilized sort of way.11 In short, at their very core IHL and IHRL are fundamentally
incompatible, and we forget this at our peril.12
Having taken these considerations into account, we can move on to their
implications for the relationship between IHL and IHRL. First, in order to be
able to provide judges and other decision-makers with workable rules that they
could then apply, and (more importantly) would be willing to apply, the focus of
our debates must shift from the relationship of the two regimes as such, to the
relationship of the particular norms belonging to the two regimes that control
specific factual situations. Secondly, since this relationship is of course but one of
many that contribute to the wider phenomenon of the fragmentation of interna-
tional law,13 we must be prepared to fully employ the toolbox that the doctrine of
international law provides us for avoiding or resolving conflicts of norms. Thirdly,
we must place the lex specialis maxim, whose exact nature remains unclear, within
that toolbox. If we do so, we will realize that lex specialis must be abandoned as
some sort of magical, two-word explanation of the relationship between IHL and
IHRL; it confuses far more than it clarifies. Finally, we must be prepared to concede
that there are some situations—perhaps not many, but by no means practically
irrelevant—where the international lawyer’s craft and tools will fail him, and where
no legal solution can be provided. Such situations of unresolvable conflict or
antinomy can be solved only in the manner in which they were created—through
the political process. I will address these issues in turn.
2. A Relationship between Norms, not between Regimes
The relationship between IHL and IHRL, and the fragmentation phenomenon
more broadly, are often examined from the high altitude perspective of a relationship
10
A further risk is that injecting human rights discourse into warfare would actually serve to legitimize
war as a phenomenon—see Verdirame, above note 4, at 692. On the other hand, those more devoted to
IHL could argue that it is IHL that loses something by being injected with IHRL—for example, with
regard to clarity and precision, or practicality and effectiveness of the norms applied—see generally
Modirzadeh, above note 3.
11
This fear, whether entirely conscious or not, that human rights might be compromised by giving
too much room to effectiveness and to the realities of armed conflict might provide at least a partial
explanation for the European Court’s reluctance so far to explicitly take IHL into account in its cases
on Chechnya, together with related fears regarding institutional incompetence. See also W. Abresch,
‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in
Chechnya’, (2005) 16 EJIL 741. For an overview of the Chechen cases, see P. Leach, ‘The Chechen
Conflict: Analysing the Oversight of the European Court of Human Rights’, (2008) EHRLR 732.
12
See also R. Provost, International Human Rights and Humanitarian Law (Cambridge University
Press, 2002), at 349–50: ‘while there is indeed space for enlightened cross-pollination and better
integration of human rights and humanitarian law, each performs a task for which it is better suited
than the other, and the fundamentals of each system remain partly incompatible with that of the other’.
13
See, e.g., A. Cassimatis, ‘International Humanitarian Law, International Human Rights Law,
and the Fragmentation of International Law’, (2007) 56 ICLQ 623.
between two or more legal regimes. Though there can be some use in such inquiries,
they are unhelpful more often than not. When it comes to the relationship between
IHL and IHLR in particular, they can not only be unhelpful—viz. the lex specialis
mantra—but misleading and even dangerous as well. To see how this can be the
case, we need only turn to the most remarked upon examples of such high altitude
pronouncements, those of the ICJ.
As is well known, the Court’s first foray into the matter occurred in the Nuclear
Weapons advisory opinion, where it remarked that
[i]n principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities.
The test of what is an arbitrary deprivation of life, however, then falls to be determined by
the applicable lex specialis, namely, the law applicable in armed conflict which is designed to
regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a
certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to
Article 6 of the Covenant, can only be decided by reference to the law applicable in armed
conflict and not deduced from the terms of the Covenant itself.14
Note that the Court in Nuclear Weapons did not really examine the relationship
between IHL and IHRL as regimes. It examined the relationship between one
particular IHRL norm, the right to life, and, at that, the right to life as it is
formulated in Article 6 ICCPR (which is worded differently than Article
2 ECHR, for instance), and the relevant rules of IHL. It was these specific rules
that were held to be lex specialis, in that they could help interpret the ‘arbitrary’ part
of Article 6 ICCPR in times of armed conflict. Though the Court’s pronouncement
was thus framed in terms of one particular problem and one particular set of norms,
it nonetheless understandably provoked an academic extrapolation to the relation-
ship between IHL and IHRL as a whole. The Nuclear Weapons opinion was thus
understood as saying that IHL defines what IHRL means in wartime, IHRL
guaranteeing no less, but also no more, rights to individuals affected by armed
conflict than IHL.15
Our discussions have of course evolved since then, and so has the ICJ, whose
next pronouncement in the Wall advisory opinion was decidedly broader in nature:
More generally, the Court considers that the protection offered by human rights conven-
tions does not cease in case of armed conflict, save through the effect of provisions for
derogation of the kind to be found in Article 4 of the International Covenant on Civil and
Political Rights. As regards the relationship between international humanitarian law and
human rights law, there are thus three possible situations: some rights may be exclusively
matters of international humanitarian law; others may be exclusively matters of human
rights law; yet others may be matters of both these branches of international law. In order to
answer the question put to it, the Court will have to take into consideration both these
14
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226,
para. 25.
15
See, e.g., L. Doswald-Beck, ‘International humanitarian law and the Advisory Opinion of the
International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons’, (1997) 37
IRRC 35.
branches of international law, namely human rights law and, as lex specialis, international
humanitarian law.16
As opposed to Nuclear Weapons, the Court here does refer to IHL as lex specialis to
IHRL, i.e. it considers not only some particular norms, but one regime to be special
to the other. The problem with such a characterization is not just that it is
overbroad, but also that the concept of lex specialis is vague and can mean at least
two radically different things, as I will explain below.17 It should be noted, in that
regard, that when the Court in Congo v. Uganda quoted its dictum from the Wall
case,18 it dropped the reference to lex specialis. Whether this omission was inten-
tional is anyone’s guess, but let us hope that it was. As a purely practical matter, the
three categories outlined by the Court do no work whatsoever, if nothing else then
because the Court does not say anything about which rules fall within which
category, and on what basis. If you are, say, a British judge asked to rule under
the Human Rights Act whether the preventive security detention of persons by
British troops in Iraq violates Article 5 ECHR, the ICJ’s dicta will provide you with
precisely zero guidance.
To say, therefore, that the two ‘spheres of law are complementary, not mutually
exclusive’,19 as is today’s human rights orthodoxy, may be perfectly true, but it
is equally unhelpful in providing practical solutions to actual cases. The comple-
mentarity claim is only an answer to the equally broad counter-claim that the two
regimes are mutually exclusive. To the extent that the latter was for many years the
default position—as it admittedly was, as a matter of actual practice—the comple-
mentarity claim does have a purpose. But beyond that, it does not solve anything. It
is the relationships between specific IHL and IHRL norms that need examining.20
As I stated above, dwelling too much on the relationship between regimes,
instead of the relationship between the relevant norms, is not only unhelpful, but
it can even be dangerous to refer to IHL as lex specialis to IHRL as a whole.
Consider, for instance, the Bush administration’s legal strategy in its ‘war on terror’.
It denied that persons detained in Guantanamo where entitled to protection under
human rights law on the basis of two separate arguments. First, as we have seen, it
contended that the relevant human rights treaties did not apply extraterritorially.
Secondly, it claimed that even if they did, they were displaced by IHL, which
applied as lex specialis to the putative global armed conflict between the US and
Al-Qaeda.21 Even if IHRL did apply formally, it granted no more protection than
16
Opinion of 9 July 2004, ICJ Reports 2004, 136, para. 106.
17
See also H. Krieger, ‘A Conflict of Norms: The Relationship between Humanitarian Law and
Human Rights Law in the ICRC Customary Law Study’, (2006) 11 JCSL 265, 269.
18
Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment,
19 December 2005, para. 216.
19
Human Rights Committee, General Comment No. 31, CCPR/C/21/Rev.1/Add.13 (26 May
2004), para. 11.
20
See Krieger, above note 17, at 271.
21
For an overview, see F. Hampson, ‘The Relationship between International Humanitarian Law
and Human Rights Law from the Perspective of a Treaty Body’, (2008) 90 IRRC 549, at 550 et seq.
IHL. Because the detainees were ‘unlawful combatants’, they enjoyed no protection
under IHL; because the absence of a rule, i.e. an unrestrained freedom for the state
to act, is also a rule, IHRL brought nothing to the table, and the Guantanamo
detainees had no rights under international law.22 Now, admittedly, this argument
of the departed administration was a succession of non sequiturs, but it was
nonetheless made using the same language in which the gentler souls among us
argue for a complementary relationship between IHL and IHRL, lex specialis
and all.23
We are past the stage where there is much use in general inquiries as to the
relationship between IHL and IHRL as regimes. Moreover, those who continue to
oppose the joint application of IHL and IHRL will not be persuaded to the
contrary no matter what generalities we or the ICJ might produce. If this is so,
then why bother? It is enough to say that the complementary nature of the
relationship between IHL and IHRL is confirmed by numerous pronouncements
by states and international political bodies,24 by international courts and tribu-
nals,25 by the text of derogation clauses of human rights treaties, and above all else,
by the treaties’ object and purpose.26 If human rights accrue to human beings solely
by virtue of their humanity, why should these rights then evaporate merely because
two states, or a state and a non-state actor, engage in an armed conflict? More
limited these rights might be, and considerations of effectiveness need to be taken
into account, but they cannot be completely extinguished or displaced if their basic
universality premise, that they are immanent in the human dignity of every
individual, is accepted.27 And though it is of course quite possible for this premise
to be contested on ideological grounds, in legal terms that premise is hard-coded
into the relevant international human rights instruments. In other words, it is the
law that human rights are universal and that they accrue to every human being, war
or no war. Nothing more needs to be said, and indeed nothing more can be said on
the matter.28
It is to specific practical problems and their solutions that we must turn. Before
doing that, however, we must take stock of the tools that are at our disposal to avoid
or resolve norm conflicts, which is what I will proceed to do next.
22
See, in particular, Chapter I above, note 2, and Chapter IV above, note 304.
23
See further P. Alston, J. Morgan-Foster and W. Abresch, ‘The Competence of the UN Human
Rights Council and its Special Procedures in relation to Armed Conflicts: Extraterritorial Executions in
the “War on Terror”’, (2008) 19 EJIL 183.
24
See, e.g., Tehran Conference, General Resolution XXIII, ‘Respect for Human Rights in Armed
Conflicts’, UN Doc. A/Conf.32/41 (13 May 1968); UNGA Res. 2444 (1968); UNGA Res. 2647
(1970); UNSC Res. 237 (1967), UNSC Res. 1649 (2005), UNSC Res. 1882 (2009).
25
See, e.g., Nuclear Weapons, above note 14; Wall, above note 16; Serrano-Cruz Sisters v. El
Salvador, Preliminary Objections, 23 November 2004, Inter-Am. Ct. H.R. Series C, No.118,
para. 112.
26
See also D. McGoldrick, ‘Human Rights and Humanitarian Law in the UK Courts’, (2007) 40 Is
LR 527, 531.
27
See also O. Ben-Naftali and Y. Shany, ‘Living in Denial: The Application of Human Rights
Treaties in the Occupied Territories’, (2003) 37 Israel L Rev 17, at 41–2; Verdirame, above note 4, at
691–2.
28
See Chapter III, Section 2.
3. Norm Conflict Avoidance and Norm Conflict Resolution
A. Defining norm conflict

To provide a norm conflict perspective on the relationship between IHL and IHRL
(an expression that I will continue to use merely as convenient shorthand, with all
of the caveats stated above), I must first give both a definition of norm conflict and
some other conceptual clarifications to the brief account that I have already given
above.29 The notion of conflict will be defined broadly: a relationship of conflict
exists between two norms if one norm constitutes, has led to, or may lead to, a
breach of the other.30 With regard to IHL and IHRL norms specifically, the notion
of conflict could be defined even more broadly—a norm conflict would exist
whenever the application of the two norms would lead to two opposite results,
for example if IHL provided that a particular use of force was lawful, while IHRL
made it unlawful.
A further distinction must be made between apparent and genuine norm
conflicts, and consequently between conflict avoidance on the one hand, and
conflict resolution on the other. An apparent conflict is one where the content of
the two norms is at first glance contradictory, yet the conflict can be avoided, most
often by interpretative means. In instances in which all techniques of conflict
avoidance fail, a genuine, as opposed to an apparent, conflict will emerge.31
These true norm conflicts are those that cannot be avoided, but which it might
be possible to resolve. Unlike avoidance, which interprets away any incompatibility,
norm conflict resolution requires one conflicting norm to prevail or have priority
over the other. Moreover, for a genuine conflict to be truly resolved in a case of
conflicting obligations it is necessary for the wrongfulness on the part of the state for
failing to abide by the displaced norm to be precluded as a matter of state
responsibility. It is only if the state bears no legal cost for disregarding one of its
commitments in favour of another that a norm conflict has truly been resolved.32
An examination of a norm conflict situation will usually proceed in two steps.
The first is an inquiry into whether it is possible to avoid a norm conflict by
interpreting the two potentially conflicting norms so as to make them compatible.
Secondly, if avoidance is impossible, the conflict might be resolved by assigning
priority to one norm over the other. However, a third outcome is also possible, and
is in fact far from unlikely—that a norm conflict will not only be unavoidable, but
also unresolvable. In such situations, which are a consequence of the diffuse and
decentralized nature of the international legal system, there can only be a political
29
See Chapter III, Section 9. I will also refer the reader to my more exhaustive treatment of the
subject, in M. Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?’, (2009) 20
Duke J. Comp. & Int’l L. 69, and the authorities cited therein.
30
J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules
of International Law (Cambridge University Press, 2003), 176.
31
See Pauwelyn, above note 30, at 272.
32
See further Milanovic, above note 29, at 6 et seq.
solution to the conflict between two equal norms.33 Regrettably, despite our best
efforts, a number of the potentially conflicting norms of IHL and IHRL might end
up in this third category.
But before venturing into this third category, I will examine the utility of the
various tools of norm conflict resolution and avoidance. I will start with methods of
norm conflict resolution, if nothing else then to show how impracticable they are in
addressing IHL and IHRL norm conflicts.
B. Methods of norm conflict resolution

Purely practically speaking, international law is not, and it might never be, a legal
system in which a hierarchy based on the sources of norms plays an important role.
Though, for example, a treaty will usually prevail over a customary rule, this is so
only because the customary rule is jus dispositivum, and applies only so long as states
do not agree otherwise34—and the same generally goes for treaties. Of course, IHL
and IHRL norms in apparent conflict can emanate both from custom and treaties,
the custom usually (and problematically) being derived in large part from the
treaties to which many, but not all states concerned may be parties. There are
four principal ways of resolving norm conflict, which, as stated above, requires
the assigning of priority to one norm over another: (1) jus cogens; (2) Article 103
of the UN Charter; (3) conflict clauses in treaties; and (4) lex posterior.
There is probably no concept that has attracted so much scholarly attention, yet
so little practical application, as jus cogens. And by little, I mean zero. There is, to
my knowledge, not a single case were jus cogens was unambiguously the basis for a
court holding that a conflicting rule of international law was null and void.35 There
are several reasons why this is so. First, as a general matter rigid hierarchy does not
sit well with the overarching structure of international law, which is still largely the
product of consensual law-making between states. Secondly, despite what some of
its more fervent adherents might claim, the number of rules that undisputedly
belong to the category of jus cogens (e.g. the prohibitions of torture, genocide, or
slavery) is quite limited.36 Thirdly, states are not nearly so foolish to conclude
treaties or engage in some other sort of international law-making that is openly
contrary to jus cogens norms.
Finally, jus cogens is a blunt instrument, which allows for no balancing or
consideration of conflicting interests, but mandates a single result on the basis of
33
See also Pauwelyn, above note 30, at 418 et seq.
34
See International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law’, UN Doc. A/CN.4/L.682 (13 April 2006), hereinafter
‘ILC Fragmentation Study’, para. 79 et seq. See also A. Verdross, ‘Jus Dispositivum and Jus Cogens in
International Law’, (1966) 60 AJIL 55, 58.
35
This of course does not stop judges from injecting liberal references to jus cogens, peremptory or
intransgressible norms or whatever in a number of judgments. I am not saying that this is a bad thing—
far from it, symbolically at least—but that does not mean that jus cogens as a concept has a direct role in
the result of the case.
36
See R. Higgins, ‘A Babel of Judicial Voices? Ruminations from the Bench’, (2006) 55 ICLQ 791,
801.
hierarchy. In cases lacking similar political and moral certainty—and that would be
almost all of them—the use of such an instrument would pose an understandably
unappealing prospect for most judges. It should likewise be noted in that regard
that Article 53 VCLT, which solidified the status of jus cogens as positive law,
provides not that a particular norm that conflicts with a rule of jus cogens is void, but that
the treaty which so conflicts—all of it—would be void.37 Now, assuming the general
validity of Article 53 VCLT, imagine if we were to say that an IHRL rule prevails over an
IHL rule contained in one or more of the Geneva Conventions because it has the status
of jus cogens—this would mean the voidness of the Geneva Conventions as a whole, not
just of that particular rule.
Aside from jus cogens, there is one other quasi-hierarchical rule of norm conflict
resolution that does have practical relevance—Article 103 of the UN Charter. It
provides that
[i]n the event of a conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail.
Most importantly, this priority rule extends to state obligations under binding
resolutions of the UN Security Council.38 Depending on the situation, the Council
can thus inject rules of its own making into the IHL/IHRL calculus, rules that
arguably have priority over all others save for jus cogens. A good example would be
the Al-Jedda case before English courts,39 where a dual Iraqi/British national was
held in security detention by British forces in Iraq. He was so held not under any
authority of the UK as an occupying power, both because he was a British national
and because the occupation had arguably already been terminated at the time.
Rather, he was held on the basis of an authorization of preventive detention by the
Security Council in its Resolution 1546 (2004), with the House of Lords deciding
that this authorization prevailed over Article 5 ECHR, which does not allow for
detention on preventive grounds, by virtue of Article 103 of the Charter.40
As for conflict clauses, they are used in treaty practice to explicitly give priority
to one treaty over another,41 though not nearly often enough.42 Obviously, no such
clauses exist in the relevant IHL and IHRL treaties. The closest we come to them
are the derogation clauses in human rights treaties, which allow for the temporary
37
See also Art. 64 VCLT.
38
See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie, Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, 114, at
126, para. 42.
39
R. (Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332, 12 December
2007 (hereinafter Al-Jedda).
40
See Al-Jedda (per Lord Bingham) para. 39. See also Al-Jedda (per Baroness Hale) paras 126 and
129, and Al-Jedda (per Lord Carswell) para. 136. Note that as of the time of writing Al-Jedda is, like Al-
Skeini, pending before the Grand Chamber of the European Court.
41
Indeed, Art. 103 of the Charter is in effect a special, proto-constitutional type of prospective
conflict clause.
42
See, e.g., Arts 237(1) and 311 of the UN Convention on the Law of the Sea. On conflict clauses
in treaties, see generally C. Borgen, ‘Resolving Treaty Conflicts’, (2005) 37 Geo. Wash. Int’l L. Rev.
573, 584–7; ILC Fragmentation Study, paras 267–71.
suspension of certain rights during an emergency to the extent strictly required by

the exigencies of the situation.43 By limiting the content of applicable human rights
law, derogations can potentially avoid or resolve many conflicts with IHL. How-
ever, as a practical matter, such derogations are rarely used, particularly in an
extraterritorial context, since their use by a state would be interpreted as a conces-
sion that the IHRL treaty in question in principle applies extraterritorially to a
given situation, and would thus open the state’s actions up to judicial scrutiny, even
if a curtailed one.44 Consequently, as we have already seen, the UK has for example
not derogated from either the ECHR or the ICCPR in respect of the conflicts in
Iraq and Afghanistan, thereby creating, rather than resolving, a host of difficult
problems.
Finally, there is that equally magical sibling of lex specialis (on which more in a
moment), lex posterior. In domestic legal systems, which are after all a model for us
as to how any legal system is supposed to work, if the legislature passes a statute
which contradicts a prior statute, the latter in time will with some exceptions
normally prevail, even if it does not contain an explicit clause to that effect. We
justify this rule basically by inferring the relevant intent on the part of the single,
uniform legislature, operating within a unified hierarchical system, which is not
supposed to issue contradictory commands to citizens. However, whatever its
validity in domestic law, this assumption manifestly does not hold true in the
international system.45 Which is why (what goes for) the international lex posterior
rule46 can hardly ever apply to conflicting multilateral law-making treaties, even
assuming that they could be said to relate to the same subject-matter which is a
prerequisite for the rule’s application. When it comes to the IHL and IHRL treaties
in particular, not only is there the obvious problem that the law-making in the two
areas occurred temporally in several waves, so that it is somewhat absurd to treat any
of these treaties as successive to each other in a lex posterior sense, but there is also
not the slightest hint of state intent that the relationship between the two bodies of
law should be governed by this rule.
In conclusion, the only two rules of norm conflict resolution that are of practical
relevance for the relationship between IHL and IHRL are Article 103 of the
Charter and the derogation clauses of human rights treaties. As is also the case
more generally, it is the methods of norm conflict avoidance which are far more
useful in practical terms.
C. Methods of norm conflict avoidance

Every legal system, but particularly the international one, can simultaneously tend
towards fragmentation, because it tries to accommodate a number of widely
43
See above note 6.
44
See also McGoldrick, above note 26, at 555–6.
45
‘There is no single legislative will behind international law. Treaties and custom come about as a
result of conflicting motives and objectives—they are ‘bargains’ and ‘package-deals’ and often result
from spontaneous reactions to events in the environment.’ ILC Fragmentation Study, para. 34.
46
See Arts 30 and 59 VCLT.
diverging values and interests, and towards harmonization, because without a
measure of unity a legal system would soon stop being one, and divide into several
particular regimes. The latter tendency is especially evident in the case law, as judges
are generally more or less keen on preserving the integrity of the system to which they
perceive themselves as belonging. Avoidance of norm conflict hence usually is
(and should be) the first recourse.47 When two norms can be interpreted harmoni-
ously, they generally are—we do norm conflict avoidance all the time.
For the purposes of the present study I propose to (entirely informally) trace the
various forms of avoidance on a broad spectrum, ranging from ‘consistent’ at one
end to ‘forced’ at the other, with ‘creative’ being somewhere in the middle. Let me
explain each more fully.
Consistent avoidance happens when the language, object and purpose, and other
structural elements of the two potentially or apparently conflicting norms can be
reasonably reconciled without much effort. An example has been given by the ICJ
in Nuclear Weapons—Article 6 ICCPR prohibits ‘arbitrary’ deprivations of life,
while IHL can tell us what ‘arbitrary’ means in times of armed conflict. Such a
method of interpretation is warranted, inter alia, by the principle of systemic
integration set out in Article 31(3)(c) VCLT, which requires that other applicable
rules of international law be taken into account when interpreting a treaty.
In many cases, the ‘fit’ between the two norms will be far from perfect. This will
usually, but not always, require one of the norms to be ‘read down’ from what its
ordinary meaning would initially suggest, or from how it is ordinarily applied, so as
to accommodate the other. For example, I would argue that Security Council
resolutions that purport to limit certain human rights have to do so in clear and
unambiguous terms.48 But it is not always other norms of international law that
need to be read down to accommodate the growing demands of human rights. In
Al-Adsani,49 for instance, the European Court held by 9 votes to 8 that Article 6
ECHR should be read consistently with international rules on state immunity, even
in cases of alleged torture.50 I would now again emphasize the point that there is a
price to be paid if the IHL/IHRL project is to work. A large part of human rights
law as interpreted in peacetime will have to be read down, to a greater or a lesser
extent, in order to be effectively applied in wartime and be realistic rather than
utopian. To again take arbitrary deprivations of life as an example, we cannot
reasonably judge in the same way situations in which the state has a peacetime
monopoly on the use of force and has to plan police operations in such a way so as
to absolutely minimize any possible loss of life, and combat situations when a state
47
To give two domestic law examples, consider the constitutional avoidance canon in US
constitutional law, whereby a statute will be interpreted so far as possible not to pose a constitutional
question or conflict, thus potentially leading to its unconstitutionality—see, e.g., INS v. St Cyr, 533
U.S. 289, 299–300 (2001); Crowell v. Benson, 285 U.S. 22, 62 (1932); or s. 3(1) of the UK Human
Rights Act 1998, mandating that ‘[s]o far as it is possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible with [ECHR] rights’.
48
See Milanovic, above note 29, at 92 et seq.
49
Al-Adsani v. United Kingdom [GC], App. No. 35763/97, Judgment, 21 November 2001.
50
See also Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi
Arabia) [2006] UKHL 26, [2007] 1 AC 270.
is embroiled in internal or international armed conflict. In the latter type of

situation, it is IHL that would be used to introduce much-needed flexibility into
the IHRL regime.
This brings me to creative avoidance, which, to put it bluntly, involves a court
simply making things up. Such creativity can be employed for good ends or bad, in
ways which are legally and logically acceptable, or not. One example is the
Bosphorus line of cases before the European Court, in which the Court held that
the transfer by states of competencies to international organizations that would be
immune from judicial process both internally and before the Court itself would not
be a violation of the ECHR so long as the organization in question provided an
equivalent level of protection of human rights.51 This was, in effect, a reading down
of the ECHR for the sake of enhanced international cooperation through various
international organizations, above all the EU. Opinions can differ on whether the
Court’s approach was justified (I think that it was), but it was indisputably entirely
made up—the equivalent protection doctrine flowed from no provision of the
ECHR, nor from any general principle of international law.52
Another, much less palatable example, would be the Behrami case that we have
already examined,53 in which the European Court simply invented on the spot an
attribution rule to the effect that the acts of peacekeepers on a UN Security
Council-authorized mission were attributable solely to the UN even if it were
particular states, rather than the UN, who had operational command and control.
The Court did so, contrary to practically unanimous authority, at least partly in
order to avoid an apparent norm conflict between Resolution 1244 (1999), whose
vague provisions the states concerned interpreted as authorizing preventive deten-
tion without judicial review, and Article 5 ECHR, with Article 103 of the Charter
and the approach of English courts in Al-Jedda looming in the background.54
Perhaps the ultimate form of creative avoidance was employed by the European
Court of Justice in Kadi, where it asserted that the EU legal system was indepen-
dent of international law, and that UN Security Council resolutions on terrorist
sanctions are unable to penetrate this independent system and could thus not
prevail over EU fundamental rights guarantees by virtue of Article 103 of the
Charter.55
Finally, there is what I termed forced avoidance, i.e. situations where a court is
faced with a result that it deems to be undesirable (for example, a conflict with a jus
51
M & Co. v. Federal Republic of Germany (dec.), App. No. 13258/87, 64 DR 138, 9 February
1990; Waite and Kennedy v. Germany [GC], App. No. 26083/94, Judgment, 18 February 1999; Beer
and Regan v. Germany [GC], App. No. 28934/95, Judgment, 18 February 1999; Bosphorus Hava
Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], App. No. 45036/98, Judgment, 30 June
2005.
52
See further above note 29, at 54 et seq.
53
71412/01 and 78166/01, 2 May 2007.
54
See further M. Milanovic and T. Papic, ‘As Bad as it Gets: The European Court of Human Rights’
Behrami and Saramati Decision and General International Law’, (2009) 58 ICLQ 267.
55
Joined Cases C-402/05 P and C-415/05 P, Kadi & Al Barakaat International Foundation v.
Council and Commission, Judgment, 3 September 2008.
cogens norm, or an unresolvable norm conflict), yet which it cannot avoid through
normal means because the text or object and purpose of the relevant provisions
simply cannot allow it under any reasonable interpretation. A court then might
resort not just to invention or innovation, but to the wholesale rewriting of a
particular provision or rule. The limits of judicial authority, and the boundaries
between legislation and interpretation, are of course set not so much by the law
itself, but by the wider social practices behind it. Just how far a judge can stray from
a law-applying to a law-making role is necessarily dependent on a particular political
and ideological context. That said, forcible methods of avoidance would by and
large be considered as illegitimate, or at the very least improper.56 To paraphrase
Lord Bingham’s view of such practices in the context of the Human Rights Act
1998, they do not constitute ‘judicial interpretation, but judicial vandalism’.57
Examples will follow.
D. Unresolvable norm conflicts

Though the international and domestic legal systems have in common both an
inbuilt imperative for norm conflict avoidance and many techniques of avoidance,
there is a point where the similarities end. In domestic systems, all norm conflicts
must eventually be either avoided or resolved, since all forms of legislation at
whatever level of governance ultimately fit within a single normative hierarchy.
In the international system the avenues of norm conflict resolution are at best
rudimentary. As we have seen above,58 it therefore knows conflicts which are both
unavoidable and unresolvable.59 A more appropriate domestic analogy, if one is
needed, would be with private, rather than with public law. Just as I can conclude
two equally valid contracts whereby I commit to sell the same thing to two different
people, and then have to face a choice as to which obligation to fulfil and which to
breach and hence suffer the consequences, so a state can enter into two mutually
contradictory, yet equally valid, commitments from which the only escape is a
political one. It can do so, moreover, not just bilaterally, but through multilateral
law-making treaties.
Take, for example, the Matthews case before the European Court, dealing with the
elections in Gibraltar for the European Parliament.60 On the one hand, the ECHR, as
interpreted and applied by the European Court, qualified the European Parliament as
a legislature in respect of which states had to organize free elections. On the other, a
treaty concluded between EU members prohibited the UK from extending the
franchise for the European Parliament to Gibraltar. The Court thus found the UK
56
See Pauwelyn, above note 30, at 244 et seq.
57
R. (Anderson) v. Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837,
para. 30.
58
See Chapter III, Section 9.
59
But see Droege, above note 6, at 524, (arguing that in cases of genuine norm conflict, one of the
norms must prevail). With respect, there is no ‘must’ here. That it is desirable to resolve conflicts is
certainly true—but it is by no means possible in all circumstances.
60
Matthews v. United Kingdom [GC], App. No. 24833/94, Judgment, 18 February 1999.
responsible for violating the ECHR irrespective of its other treaty obligations. This did
not mean, however, that the treaty prohibiting the extension of the franchise to the
inhabitants of Gibraltar was invalid, or that the ECHR prevailed over it in some
hierarchical sense. Both treaties were formally of equal stature, and no norm conflict
resolution was possible—the UK could not fulfil its obligations under either treaty
without violating the other, thereby incurring state responsibility. Only a political
solution was possible for this norm conflict, based on a political preference for the
ECHR among the other EU member states, and an eventual extension of the
franchise.61
Or take an even better known case, Soering,62 which we have already mentioned
above in the context of effectiveness and norm conflict. There the European Court
interpreted Article 3 ECHR as setting out a non-refoulement obligation, prohibiting
the UK from transferring a person to the US if a real risk of that person being
subjected to inhuman or degrading treatment in the US was established. At the
other end was a perfectly valid extradition treaty between the UK and the US,
which obliged the UK to extradite Soering, and which specified no exception to
that obligation like the one devised by the European Court. There was, in other
words, a norm conflict between the ECHR and the UK/US extradition treaty, and
that was that. Now, one could argue, for instance, that the non-refoulement obliga-
tion invented by the Court in Soering had the status of jus cogens, and that it thus
invalidated the conflicting extradition treaty—but this would be quite a stretch, to
put it mildly.63 Or, one could forcibly ‘read in’ a human rights exception into the
UK/US treaty, even though there was no such exception—but such a judicial
rewriting of a treaty would in my view almost invariably be illegitimate. In reality
what we had in Soering was an unresolvable norm conflict. The political solution to
this conflict was that the US did not press the issue, and that it reached an
accommodation with European states generally whereby it would provide assur-
ances that a person whose extradition was being sought would not be tried for a
capital offence.
I must emphasize at this point that the fact that the norm conflicts in Matthews
and Soering were unresolvable does not mean that the two cases were unresolvable.
In both cases the Court was asked the only question that it had the jurisdiction to
answer—whether the ECHR was violated. In both cases it said yes. In both cases
another treaty would have been violated had the state fulfilled its ECHR obliga-
tions, but in both cases this simply did not matter for answering the question that
was posed to the Court, as all avenues of norm conflict avoidance and resolution
were exhausted. The only way that the Court could have avoided the norm conflict
61
For a fuller account of Matthews, see Milanovic, above note 29.
62
63
That the prohibition of torture is jus cogens does not automatically entail that the prohibition of
other forms of ill-treatment is also jus cogens. Even if it is, this would not automatically entail that the
derived non-refoulement obligation would also have such status. Likewise, that all of these norms are
absolute—which they are—does not mean that they all necessarily must be jus cogens, since peremptory
norms must be ‘accepted and recognized [as such] by the international community of States as a whole’
(Art. 53 VCLT).
in Soering, for instance, was by ruling that there was no non-refoulement obligation
arising under Article 3 ECHR, or by giving this obligation a rather pathetic
content. On the other hand, in its interpretation of the ECHR the Court made a
variety of legal, policy, and value choices that rendered such a course undesirable, if
not impossible. This shows that avoidance of norm conflict is not some sort of
absolute priority, but is a value like any other, which will sometimes prevail, and
sometimes not. But in any event a court faced with an unresolvable norm conflict is
not thereby required to pronounce a non liquet.
We can see similar norm conflict considerations in the R (B and Others) case64
before the English Court of Appeal, essentially an extraterritorial Soering. The
applicants were asylum-seekers in Australia, who were allegedly held in a detention
centre in appalling conditions. They escaped and sought refuge in a British
consulate, claiming that under Article 3 ECHR the UK could not release them
to Australian authorities as they would be subjected to inhuman or degrading
treatment. The Court of Appeal held that because the applicants were present on
Australian sovereign territory, and the UK had an international legal obligation to
surrender them to Australia, the UK’s Article 3 non-refoulement obligation had to
be qualified from what it would normally be under Soering:
In a case such as Soering the Contracting State commits no breach of international law by
permitting an individual to remain within its territorial jurisdiction rather than removing
him to another State. The same is not necessarily true where a State permits an individual to
remain within the shelter of consular premises rather than requiring him to leave. It does not
seem to us that the Convention can require States to give refuge to fugitives within consular
premises if to do so would violate international law. So to hold would be in fundamental
conflict with the importance that the Grand Chamber attached in Bankovic to principles of
international law. Furthermore, there must be an implication that obligations under a
Convention are to be interpreted, insofar as possible, in a manner that accords with
international law.65
Therefore:
We have concluded that, if the Soering approach is to be applied to diplomatic asylum, the
duty to provide refuge can only arise under the Convention where this is compatible with
public international law. Where a fugitive is facing the risk of death or injury as the result of
lawless disorder, no breach of international law will be occasioned by affording him refuge.
Where, however, the receiving State requests that the fugitive be handed over the situation is
very different. The basic principle is that the authorities of the receiving State can require
surrender of a fugitive in respect of whom they wish to exercise the authority that arises from
their territorial jurisdiction; see Article 55 of the 1963 Vienna Convention. Where such a
request is made the Convention cannot normally require the diplomatic authorities of the
sending State to permit the fugitive to remain within the diplomatic premises in defiance of
the receiving State. Should it be clear, however, that the receiving State intends to subject
the fugitive to treatment so harsh as to constitute a crime against humanity, international
64
R. (B and Others) v. Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ
1344, [2005] QB 643.
65
Ibid., para. 84.
law must surely permit the officials of the sending state to do all that is reasonably possible,
including allowing the fugitive to take refuge in the diplomatic premises, in order to protect
him against such treatment. In such circumstances the Convention may well impose a duty
on a Contracting State to afford diplomatic asylum.
It may be that there is a lesser level of threatened harm that will justify the assertion of an
entitlement under international law to grant diplomatic asylum. This is an area where the
law is ill-defined. So far as Australian law was concerned, the applicants had escaped from
lawful detention under the provisions of the Migration Act 1958. On the face of it
international law entitled the Australian authorities to demand their return. We do not
consider that the United Kingdom officials could be required by the Convention and the
Human Rights Act to decline to hand over the applicants unless this was clearly necessary in
order to protect them from the immediate likelihood of experiencing serious injury.66
The Court of Appeal in B was faced with an apparent norm conflict. On the one
hand, except perhaps in a very limited set of circumstances, customary international
law does not allow for diplomatic asylum, and required the UK to respect Austra-
lian sovereignty and surrender the applicants to Australia. On the other, Article 3
ECHR prohibited the UK from surrendering the applicants, if there was a serious
risk that they would be subjected to ill-treatment. Realizing the existence of the
conflict, the Court decided to forcibly avoid it by reading down the non-refoulement
obligation under Article 3 ECHR. Its reasoning is however problematic in at least
two respects.
First, the Court’s actual reading down—qualifying non-refoulement so that it
applies only if ‘the receiving State intends to subject the fugitive to treatment so
harsh as to constitute a crime against humanity’—is as plainly incorrect as it is
forced, since crimes against humanity can never be committed against individuals
in isolation, but only in the context of a widespread or systematic attack on a
civilian population.67 This condition would hardly be satisfied even in places like
Iraq or Iran, let alone in Australia. Secondly, and more fundamentally, as we have
just seen there was in fact a norm conflict even in Soering, yet this was not enough
for the European Court to read down the ECHR—thus leading to an unresolvable
norm conflict.
To bring this discussion of unresolvable norm conflicts a bit closer to home and
the relationship between IHL and IHRL, let us turn back to the Al-Saadoon case
that we have already extensively examined above.68 Readers will recall the norm
conflict in Al-Saadoon. Accepting the UK’s argument, it had an obligation to
transfer the applicants to Iraq.69 Accepting the applicants’ argument, the UK had
an ECHR obligation not to do so. In other words, there was a genuine norm conflict
à la Soering at hand, and no consistent form of avoidance was available, nor could
this norm conflict be resolved on the basis of some hierarchical rule. The Court of
66
67
See, e.g., Art. 7 of the Rome Statute of the International Criminal Court.
68
See Chapter IV, Section 2.B.
69
This obligation would derive from the customary obligation of all states not to interfere with the
sovereignty and jurisdiction of other states—see, mutatis mutandis, Asylum (Colombia v. Peru),
Judgment, ICJ Reports 1950, 275.
Appeal thus decided to resort to more imaginative forms of avoidance, ranging
somewhere from the ‘creative’ to the ‘forced’ on my tentative scale. It first held
that the ECHR simply did not apply extraterritorially, thus nipping the norm
conflict in the bud, because the UK had the applicants in custody solely on the
basis of Iraqi legal authority and because it had an obligation to transfer them to
Iraq. It then held, relying on its earlier precedent in B, that even if the ECHR did
apply, and there was in principle an applicable non-refoulement obligation, that
obligation had to be qualified, because the applicants were held on Iraqi soil and
on Iraqi legal authority.70
As we have seen, the first of the Court’s methods of avoidance is entirely
unconvincing—there is no principled reason why the applicability of the ECHR
should depend on the existence of other international obligations. The UK un-
doubtedly had an obligation to extradite in Soering, but that had no bearing on the
applicability of the ECHR. When Al-Saadoon thus came before the European
Court, it quite rightly decided that the ECHR was applicable, as its extraterritorial
application did not depend on the UK’s obligations towards Iraq, but on its de facto
control over their place of detention.71
The Court of Appeal’s second method of avoidance is somewhat more credible.
It is possible to argue that Soering is distinguishable in that the applicant in that
case was held on UK territory, while the applicants in Al-Saadoon were held on
Iraqi territory, and that the respect for Iraqi sovereignty warrants a more attenuated
application of the ECHR. Norm conflict avoidance would thus be possible
in principle, if the ECHR was read down. This approach remains questionable,
however, because of the values that the non-refoulement rule is meant to protect—
the prohibition of all kinds of ill-treatment and the effective implementation of this
prohibition—and it is entirely unclear why these values should be balanced away in
an extraterritorial setting, but not in an intraterritorial setting.
This is precisely why the Court of Appeal’s approach was ultimately rejected by
the European Court in its merits judgment in Al-Saadoon:
The Government contended that they were under an obligation under international law to
surrender the applicants to the Iraqi authorities. In this connection, the Court recalls that
the Convention must be interpreted in the light of the rules set out in the Vienna
Convention on the Law of Treaties, 1969, of which Article 31 } 3(c) indicates that account
is to be taken of ‘any relevant rules of international law applicable in the relations between
the parties’. More generally, the Court recalls that the principles underlying the Convention
cannot be interpreted and applied in a vacuum. The Convention should be interpreted as far
as possible in harmony with other principles of international law of which it forms part (see
Al-Adsani v. the United Kingdom [GC], no. 35763/97, } 55, ECHR 2001-XI; Banković,
cited above, }} 55–57). The Court has also long recognised the importance of international
cooperation (see Al-Adsani, } 54 and Bosphorus, } 150, both cited above).
The Court must in addition have regard to the special character of the Convention as a
treaty for the collective enforcement of human rights and fundamental freedoms. Its
70
Al-Saadoon CA, paras 41–51.
71
Al-Saadoon and Mufdhi v. United Kingdom (dec.), App. No. 61498/08, 30 June 2009, paras 87–9.
approach must be guided by the fact that the object and purpose of the Convention as an
instrument for the protection of individual human beings requires that its provisions be
interpreted and applied so as to make its safeguards practical and effective (see, inter alia,
Soering, cited above, } 87; Loizidou v. Turkey (preliminary objections), cited above, } 72;
McCann and Others, cited above, } 146).
It has been accepted that a Contracting Party is responsible under Article 1 of the
Convention for all acts and omissions of its organs regardless of whether the act or omission
in question was a consequence of domestic law or of the necessity to comply with inter-
national legal obligations. Article 1 makes no distinction as to the type of rule or measure
concerned and does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny
under the Convention (Bosphorus, cited above, } 153). The State is considered to retain
Convention liability in respect of treaty commitments subsequent to the entry into force of
the Convention (see Bosphorus, cited above, } 154 and the cases cited therein). For example,
in Soering, cited above, the obligation under Article 3 of the Convention not to surrender a
fugitive to another State where there were substantial grounds for believing that he would be
in danger of being subjected to torture or inhuman or degrading treatment or punishment
was held to override the United Kingdom’s obligations under the Extradition Treaty it had
concluded with the United States in 1972.72
In short, the Court said that it would go to great lengths to avoid norm conflicts by
harmonizing the interpretation of the ECHR and other international obligations,
but only within the limits set by the ECHR’s special character as a treaty with the
purpose of protecting human rights. It thus quite correctly pointed out that in
Soering the Court was unwilling to read down the ECHR to accommodate other
international obligations. The Court is mistaken, however, when it says that in
Soering the ECHR non-refoulement obligation ‘was held to override’ the UK’s
obligations towards the US. This is simply incorrect if the word ‘override’ is to
be taken as implying a hierarchical relationship. The ECHR is certainly not
superior law to a bilateral treaty with a non-state party. Rather, as we have seen,
the two treaties were in an unresolvable norm conflict, with the only possible
solution to that conflict being political in nature, for example through the renego-
tiation of either obligation.
The Court then went on to find that it ‘is not open to a Contracting State to
enter into an agreement with another State which conflicts with its obligations
under the Convention. This principle carries all the more force in the present case
given the absolute and fundamental nature of the right not to be subjected to the
death penalty and the grave and irreversible harm risked by the applicants.’73
Accordingly, the UK ‘was under a paramount obligation to ensure that the arrest
and detention did not end in a manner which would breach the applicants’
rights’.74 Because the UK did not attempt to negotiate with Iraqi authorities to
obtain binding guarantees from them that the applicants would not be subjected to
the death penalty or other ill-treatment, as it could have, the applicants’ ECHR
72
Al-Saadoon and Mufdhi v. United Kingdom, App. No. 61498/08, Judgment, 2 March 2010,
paras 126–8.
73
Ibid., para. 138.
74
Ibid., para. 140.
rights were violated. As for the resulting norm conflict, the Court was of the
view that
. . . the Government have failed to establish that there were no realistic or practicable means
available to them by which to safeguard the applicants’ fundamental human rights. In these
circumstances, the ‘objective impediment’ claimed by the Government, namely the absence,
on 31 December 2008, of any available course of action consistent with respect for Iraqi
sovereignty other than the transfer of the applicants, was of the respondent State’s own
making.75
Note how the Court’s analysis actually rests on an underlying value judgment
about the importance of Article 2 and 3 ECHR rights, and the non-refoulement
obligation which protects them. If it had wanted to, it could have avoided the
norm conflict by qualifying this obligation in an extraterritorial setting, but it
chose not to, precisely because of the importance it gave to the rights at hand.
Note also that whatever the European Court’s ruling, this does not change the
fact that the UK did have an international legal obligation to surrender the
applicants to Iraq. As in Soering, in Al-Saadoon the UK brought itself into a
situation of unresolvable norm conflict—a conflict of its ‘own making’, but a
genuine conflict nonetheless.76 And as in Soering, that conflict only had a political
solution: the UK could have flatly refused to surrender the applicants to Iraq; it
could have tried to negotiate with Iraq and obtain guarantees that the applicants
would not be subjected to the death penalty—though Iraq could of course always
have refused to negotiate; or, it could have disobeyed its ECHR obligations and
surrendered the applicants to Iraq. The UK, as we know, chose the third option.77
However, the fact that most of us might think that as a matter of policy it should
have opted for the second or the first does not mean that this choice was legally
warranted. The choice was an entirely political one—but it is one for which the UK
has incurred state responsibility for violating the ECHR, both with regard to the
substance of the non-refoulement claim and with regard to the European Court’s
interim measures order.78
75
Ibid., para. 162.
76
See also M. Cross and S. Williams, ‘Between the Devil and the Deep Blue Sea: Conflicted
Thinking in the Al-Saadoon Affair’, (2009) 58 ICLQ 689; N. Bhuta, ‘Conflicting International
Obligations and the Risk of Torture and Unfair Trial’, (2009) 7 JICJ 1133.
77
The norm conflict was even openly acknowledged by the UK government—see Letter dated
26 January 2008 from the Minister of State for the Armed Forced to the Chairman of the Joint
Committee for Human Rights, available at <http://www.publications.parliament.uk/pa/jt200910/
jtselect/jtrights/85/85we03.htm>. Relying on the Court of Appeal’s ruling that the applicants were
not within the UK’s jurisdiction, and having regard to the expiry of the UK forces’ mandate on
31 December 2008, the letter states, inter alia, that the government was ‘faced with the option of
breaching the Rule 39 measure or acting unlawfully in international law’. Of course, the former was
no less a violation of international law, particularly in the light of the European Court’s decision
that the applicants were at all times within the UK’s jurisdiction.
78
For a more extensive discussion of Al-Saadoon, see M. Milanovic, ‘Al-Saadoon and Mufdhi
Merits Judgment’, EJIL: Talk!, 2 March 2010, available at <http://www.ejiltalk.org/al-saadoon-and-
mufdhi-merits-judgment/>.
4. Is Lex Specialis a Rule of Conflict Avoidance or of

Conflict Resolution?
Having examined the tools that we have at our disposal for avoiding or resolving
norm conflicts, I will now turn to finding out the proper place of lex specialis in the
toolbox. Namely, despite all that has been written on lex specialis and the relation-
ship between IHL and IHRL, the meaning of the maxim remains entirely unclear.
In the framework that I have given above, we are still unsure whether lex specialis is
a rule of norm conflict avoidance or a rule of norm conflict resolution, and this has
extraordinary consequences for the practical utility of this rule. In my view, lex
specialis can only be a tool of conflict avoidance, and not a particularly impressive
one at that, as I will now try to explain.
That lex specialis can mean two essentially different things has long been
recognized,79 but the importance of this distinction has sometimes been down-
played or overlooked.80 To see how the distinction between avoidance and resolu-
tion remains fundamental, we need only look at a familiar IHL/IHRL example—
the lawfulness of preventive detention.
IHL either authorizes or considers as lawful at least two forms of preventive
detention during international armed conflicts.81 First, under Article 21 of the
Third Geneva Convention, prisoners of war may be subjected to internment, i.e.
they may be detained on purely preventive grounds, so that they do not rejoin the
hostilities. IHL does not require the detaining power to prove that it is necessary to
detain POWs—it simply presumes that this is the case, and POWs may be detained
until the cessation of active hostilities. Secondly, under Articles 41–43 and 78 of
the Fourth Geneva Convention, civilians can, like combatants, also be subjected to
internment ‘if the security of the Detaining Power makes it absolutely necessary’.
IHL therefore poses a stricter requirement for the internment of civilians than of
combatants, as it requires a positive showing of necessity.
When it comes to IHRL, different instruments regulate detention in different
ways. Article 9(1) ICCPR provides that
[e]veryone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law.
Unlike Article 9(1) ICCPR, which sets out a standard prohibiting arbitrary deten-
tion, Article 5(1) ECHR is much more specific:
79
See, e.g., A. Lindroos, ‘Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine
of Lex Specialis’, (2005) 74 Nord J Int’l L 27, esp. at 46; N. Prud’homme, ‘Lex Specialis: Over-
simplifying a More Complex and Multifaceted Relationship?’, (2007) 40 Israel L Rev 355, at 366 et seq;
Droege, above note 7, at 523–4; Krieger, above note 17, at 268–70; ILC Fragmentation Study, paras
56–7, and the authorities cited therein.
80
See ILC Fragmentation Study, paras 88–97.
81
See generally J. Pejic, ‘Procedural Principles and Safeguards for Internment/Administrative
Detention in Armed Conflict and Other Situations of Violence’, (2005) 87 IRRC 375.
Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed by law.
The list that elaborates on the ‘save in the following cases’ clause comprises of six
possible situations, none of which can be reasonably interpreted to allow for
preventive security detention. Article 5 was quite deliberately drafted exhaustively,
in order to prevent overly expansive interpretations, intrusive on personal liberty, of
something like the ICCPR arbitrariness standard.
To briefly pose the problem: if somehow, unfathomably, France decided to
declare war and invade the UK, would the detention of French POWs on UK soil
constitute a violation of Article 5(1) ECHR, in the absence of a UK derogation?
Less fancifully, but with the added problem of extraterritoriality, was the detention
of thousands of persons by the UK as an occupying power in Iraq after the April
2003 invasion also a violation of Article 5(1), prior to the June 2004 Security
Council authorization in Resolution 1546 that could arguably prevail over the
ECHR, per Al-Jedda?
The answer to these two questions depends on what we think the nature of the lex
specialis rule is. If it was just a rule of norm conflict avoidance, we could interpret
the Article 9(1) ICCPR arbitrariness standard while taking into account the rules of
IHL, and we could say that preventive detention in times of international armed
conflict in accordance with IHL is not arbitrary. (This, of course, is precisely what the
ICJ did in Nuclear Weapons in regard to the same standard in relation to deprivation
of life.) But, if lex specialis was merely a method of avoidance, we would be powerless
if the same issue was examined under Article 5(1) ECHR. That provision allows for
no ‘window’ through which IHL could enter; no reasonable interpretation of its text
in light of its object and purpose would reach a compatible result. In the absence of a
derogation, it is only if the European Court forcibly read Article 5 ECHR as if it set
out an arbitrariness standard similar to Article 9 ICCPR that conflict avoidance
would be feasible. However, not only would such rewriting of the treaty be judicial
vandalism, not interpretation, as Lord Bingham so aptly put it, it would also have
nothing to do with lex specialis. It would in effect amount to a court disregarding a
clear norm emanating from one treaty in favour of another, on the basis of a policy
judgment as to the norm’s desirability, reasonableness, or effectiveness.
If, on the other hand, lex specialis was not a rule of norm conflict avoidance, but
of norm conflict resolution, then and only then could we say that IHL prevails over
the ECHR in some quasi-hierarchical sense (presumably because states intended it
to do so), and that it precludes the UK’s responsibility for failing to abide by the
express requirements of Article 5. But there is simply no evidence that lex specialis is
in fact a rule of conflict resolution. No treaty says so. It has certainly never been
used as such in an IHL/IHRL context, least of all by the ICJ, which only used to
interpret general IHRL standards such as arbitrariness in light of IHL.82 Neither
82
Perhaps the closest to doing so was the Inter-American Commission on Human Rights, which
was overruled on that point by the Inter-American Court. See further C. McCarthy, ‘Human Rights
and the Laws of War under the American Convention on Human Rights’, (2008) EHRLR 762, esp. at
767 et seq.
the texts of the relevant treaties nor the official positions of states support an
inference of a state intent to override the express language of human rights treaties
by having regard to a principle as nebulous as lex specialis,83 which is for that matter,
unlike lex posterior, not even mentioned in the VCLT. If anything, the text of the
human rights treaties makes it clear that states are supposed to use derogations to
avoid conflicts with IHL.84 Moreover, that states have so far not fully complied
with their IHRL obligations in armed conflict hardly counts as an inference of such
intent, as they do not fully comply with their IHL obligations either. Perhaps in
some cases it might be possible to infer an intent by contracting parties to apply the
more specific treaty against the express terms of a more general treaty, but this is most
certainly not the case with IHL and IHRL.85
More fundamentally, lex specialis as a rule of conflict resolution rests on an
unstated assumption—that for any given situation at any given point in time there
is one, and can only be one, expression of state consent or intent as to how that
situation is to be regulated.86 But that assumption is manifestly unfounded. As we
have seen above, states are, like people, perfectly capable of assuming contradictory
commitments. And just as lex specialis is unable to resolve conflicts such as those in
Matthews, Soering, or Al-Saadoon, so it is unable to resolve conflicts between IHL
and IHRL. In international law lex specialis is nothing more than a sub-species of
harmonious interpretation, a method of norm conflict avoidance.87 All it can do is
assist in the interpretation of general terms and standards in either IHL or IHRL by
reference to more specific norms from the other branch. It can hence help us
determine whether particular deprivations of life or liberty during an armed conflict
are ‘arbitrary’ or not. It can also work both ways—for instance, the more detailed
IHRL norms on fair trial and a developed human rights jurisprudence can help us
interpret the more general Common Article 3 requirement for trials satisfying
‘judicial guarantees which are recognized as indispensable by civilized peoples’.88
But it can do no more than that.89 Above all, it cannot create hierarchies where
there are none. And precisely because the use of the term lex specialis to describe the
83
See also ILC Fragmentation Study, para. 104, where the ILC considered that lex specialis in the
context of the Nuclear Weapons case only affected the assessment of the Art. 6 ICCPR arbitrariness
standard. The ILC does not consider a scenario where no such malleable standard was available.
84
See Wall, above note 16.
85
But see Krieger, above note 17, at 272; Droege, above note 7, at 524.
86
See Pauwelyn, above note 30, at 388.
87
See M. Akehurst, ‘The Hierarchy of the Sources of International Law’, (1974–1975) 47 BYIL
273, stating that ‘lex specialis is nothing more than a rule of interpretation’; Pauwelyn, at 410.
Confusingly, lex specialis is sometimes also invoked to describe the relationship between general
(customary) international law and treaties, to the effect that treaties usually override custom. But, as
stated above, this is only so because most customary (and treaty) rules apply so long as states do not
agree differently. See further Lindroos, above note 79, at 49 et seq. As we have seen in Al-Saadoon,
however, a conflict between treaty and custom is nonetheless perfectly possible.
88
This is in effect what the US Supreme Court did in Hamdan v. Rumsfeld, 548 U.S. 557 (2006),
n. 66. See further M. Milanovic, ‘Lessons for Human Rights and Humanitarian Law in the War on
Terror: Comparing Hamdan and the Israeli Targeted Killings Case’, (2007) 89 IRRC 373, 389 et seq.
See also Krieger, above note 17, at 274.
89
See also T. Thienel, ‘The Georgian Conflict, Racial Discrimination and the ICJ: The Order on
Provisional Measures of 15 October 2008’, (2009) 9 HRLR 465, 467–9.
relationship between IHRL and IHL creates a false impression of facility, its use
should be avoided.90 The joint application of two bodies of law indeed requires a
great deal of avoidance and creativity, involving a host of different legal, policy, and
value judgments. To an extent these judgments will be governed by our impression
of which norm is more ‘special’ in regard to the subject-matter, parties, level of
detail, etc.—but that is only one factor among many. And it is because lex specialis,
like other rules of norm conflict avoidance, must operate within the permissible
bounds of interpretation, and may not stray into disregarding perfectly clear yet
conflicting rules, that in a number of areas the relationship between IHL and IHRL
may actually be that of unresolvable norm conflict.91 I will now turn to examining
some of them.
5. Areas of Potentially Unresolvable Norm Conflict
A. Preventive detention and judicial review of detention

We have just examined one area of potentially unresolvable norm conflict—
detention. Let us further compare three situations of detention, all actual situations
occurring in Iraq. First, in an Al-Jedda-type situation a genuine norm conflict exists
between a Security Council authorization and Article 5(1) ECHR, which can be
resolved in the former’s favour by Article 103 of the Charter. Secondly, in an
Al-Saadoon-type situation, security detention is transformed into a somewhat
unorthodox form of pre-trial detention that is in principle compatible with Article
5(1) ECHR. Thirdly, in the situation of preventive security detention in pre-June
2004 occupied Iraq without any Security Council interference, we have a pure
conflict between IHL and IHRL. With regard to the ICCPR, that conflict can be
avoided through the harmonious interpretation of the Article 9 ICCPR arbitrari-
ness standard. With regard to Article 5 ECHR, in the absence of a derogation
nothing can be done to either avoid or resolve the conflict, short of resorting to
probably illegitimate, forceful means of avoidance.
Does the UK’s failure to derogate from Article 5 ECHR mean that all of the
persons whom it detained as an occupying power in Iraq before the passing of
Resolution 1546, or as an occupying power in Afghanistan, were detained unlaw-
fully, IHL notwithstanding? The answer to that question is regrettably a resounding
yes as far as the ECHR is concerned. And this is entirely the UK’s fault, since it
made a conscious political choice not to use the method of avoidance provided for
by the ECHR itself, preferring instead to deny that the ECHR applied altogether.
There is moreover nothing absurd about such a result, nor does it lead to some sort
of non liquet. A court dealing with the matter can answer any of the questions asked
90
Similarly on the ineffectiveness and conceptual vagueness of lex specialis, see Prud’homme, above
note 79.
91
Again, where the line between interpretation and legislation actually lies is a difficult and context-
specific question, dependent (at least in a positivist framework) on social practices and conceptions of
political legitimacy.
of it. Was the detention authorized or at least permitted by IHL? Yes. Was it
nonetheless contrary to the ECHR? Again, yes. That the law is in a state of
antinomy is simply not the court’s problem, after it has weighed all of the options
at its disposal to either avoid or resolve that conflict.92
In addition to the grounds of detention, another possible area of unresolvable
conflict is that of judicial review of the lawfulness of detention. Here the ICCPR
and the ECHR are exactly the same: both of them demand such review, and allow
for no exceptions from that rule. Thus, Article 5(4) ECHR provides that
[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.
While Article 9(4) ICCPR stipulates that
[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not lawful.
When it comes to IHL, because in respect of POWs it requires no showing of
necessity that they be detained, subsequent to a determination of their status under
Article 5 of the Third Geneva Convention, it also requires no judicial process of
reviewing their detention. In respect of interned civilians, for whose preventive
detention a necessity must be shown, Article 43(1) of the Fourth Geneva Conven-
tion does require periodic review ‘by an appropriate court or administrative board’.
The IHRL norm that ‘everyone’ or ‘anyone’ must be able to challenge his
detention before a court, period, cannot be reconciled, absent a derogation, with
the IHL norms that the detention of POWs need not be reviewed at all, while the
detention of civilians can be reviewed even by a mere administrative board. The
only possible accommodation that IHRL can make for IHL in this respect is to read
standards such as ‘speedily’ or ‘without delay’ more flexibly in armed conflict, but
the core of the unambiguously expressed norm cannot just go away. Now, if one
takes a more formal or narrow definition of norm conflict, then one could say that
there is no conflict here between IHL and IHRL, as nothing prohibited the state
from assuming a further set of IHRL obligations that are stricter than its IHL
obligations.93 Substantively, however, and above all practically speaking, we are
faced with an unresolvable norm conflict, because one branch of the law regards a
situation as perfectly lawful, while the other does not.
92
This is in fact precisely what happened in one of the interstate cases initiated by Cyprus against
Turkey before the now defunct European Commission on Human Rights, in which a majority of the
Commission held that the preventive detention of POWs by Turkey violated Article 5 ECHR in the
absence of a derogation—see Cyprus v. Turkey, App. Nos 6780/74 and 6950/75, Report of the
Commission, adopted on 10 July 1976. Françoise Hampson finds such a result to be absurd,
apparently on policy grounds—see Hampson, above note 21, at 565–6. Legally speaking, however,
though it might be quite undesirable to have an unresolvable norm conflict, there is nothing absurd
about it, particularly when Turkey could have used a derogation to avoid it.
93
See Cassimatis, above note 13, at 633.
Moreover, not even a derogation might be able to completely avoid a conflict
between IHRL and IHL in respect of detention. Recall that a state may take
measures of derogation only ‘to the extent strictly required by the exigencies of
the situation, provided that such measures are not inconsistent with its other
obligations under international law’.94 Therefore, even if during an armed conflict
a state party derogated from Article 5 ECHR or Article 9 ICCPR to allow for
preventive detention without judicial review, in a manner completely consistent
with IHL, this would not necessarily suffice to make that derogation stand—the
measures taken still need to be ‘strictly required’, as a matter of some sort of
objective external assessment.
For example, a derogation restating the blanket IHL position that combatants
may always be preventively detained may be challenged, say if the armed conflict is
quite protracted and the burden of detention consequently grows greater, the
security risk posed by the POWs is small, and less restrictive means than intern-
ment for preventing their return to hostilities are available. Or, in respect of the
internment of civilians in occupied territory, a state which derogates from the
ICCPR or the ECHR to allow for the review of their detention by mere adminis-
trative boards, but is in reality quite capable of creating independent courts who
could do the reviewing, ultimately might not be able to rely on its derogation no
matter what IHL might say.95
B. Necessity in targeting
The detention example of unresolvable norm conflict is far-reaching enough, but
my next example, that of targeting, is no less important. In IHL, the traditional
position has been that combatants may always be targeted so long as they are not
hors de combat,96 and this position holds true with some temporal limitations even
for civilians taking a direct part in hostilities.97 In other words, one belligerent party
does not need to prove any kind of necessity to kill combatants belonging to the
other belligerent party, in order to be able to do so lawfully. ‘Those who belong to
armed forces or armed groups may be attacked at any time.’98
When it comes to IHRL, there are significant variations among the relevant
treaties when it comes to conditions under which a state may deprive individuals of
life. Article 6(1) ICCPR stipulates that ‘[n]o one shall be arbitrarily deprived of his
life’, while Article 4(2) thereof prohibits derogations from this prohibition under
any circumstances. Article 2 ECHR prohibits any intentional deprivation of life,
94
See Art. 15 ECHR, Art. 4 ICCPR.
95
See Human Rights Committee, General Comment No. 29, UN Doc. CCPR/C/21/Rev.1/
Add.11 (2001), para. 16, where the Committee asserts, perhaps too broadly, that states may never
derogate from the requirement for judicial review of detention.
96
See Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict
(Cambridge University Press, 2004), 27–9, 145; N. Lubell, ‘Challenges in Applying Human Rights
Law to Armed Conflict’, (2005) 87 IRRC 737, 745–6.
97
See Art. 51(3) of Additional Protocol I.
98
Y. Sandoz et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949 (1987), 1453.
save ‘when it results from the use of force which is no more than absolutely
necessary: (a) in defence of any person from unlawful violence; (b) in order to
effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in
action lawfully taken for the purpose of quelling a riot or insurrection’. On the
other hand, Article 15(2) does allow derogations from the right to life (only) ‘in
respect of deaths resulting from lawful acts of war’, thus opening a window for IHL.
The ICCPR and the ECHR again pose somewhat different interpretative
problems. The arbitrariness standard of the ICCPR allows for an easier reconciling
with IHL, as the ICJ did in Nuclear Weapons. As for the ECHR, Article 2(2)(c)
would govern situations of internal armed conflict, yet any deprivation of life would
still have to be ‘absolutely necessary’, while Article 15(2) would apply to situations
of international armed conflict.99 But again, even with Article 15(2) in the picture,
the derogation still needs to be ‘strictly required by the exigencies of the situation’
under Article 15(1), and of course needs to actually be made.
This brings me to the potentially unresolvable norm conflict with IHL. Both the
ICCPR and the ECHR can easily be interpreted as requiring a showing of necessity
before any intentional deprivation of life,100 while, as we have seen, IHL purpose-
fully does not require such a showing in respect of combatants or civilians taking a
direct part in hostilities.101 The IHRL necessity standard may be relaxed somewhat
to take into account the fact of armed conflict, but it is hard to see how it can be
totally extinguished, as IHL warrants, as soon as an armed conflict takes place and
solely on the basis of the person’s status.
To see this norm conflict at work we need only to take a look at the Targeted
Killings judgment of the Supreme Court of Israel.102 The Court’s prime desire in
that case was to give clear guidance to the Israeli armed forces and secret services as
to under what conditions they can target a suspected terrorist.103 One of the
conditions that it imposed was that a terrorist may not be targeted if the incidental
damage caused to nearby civilians is disproportionate to the direct military advan-
tage anticipated from the elimination of the said terrorist.104 This is of course the
IHL proportionality principle, whose purpose is to allow the use of lethal force but
to minimize the collateral damage arising from its use.105
99
It is worth noting that no ECHR state party has ever made a derogation under Art. 15(2). For a
similar analysis of this example, see Hampson, above note 21, at 564–5.
100
See, e.g., McCann and Others v. United Kingdom, App. No. 18984/91, Judgment, 27 September
1995, paras 149–50.
101
See also McCarthy, above note 82, at 773 et seq; Krieger, above note 17, at 280–1.
102
The Public Committee against Torture in Israel et al. v. The Government of Israel et al, HCJ 769/
02, Judgment, 11 December 2006, available at <http://elyon1.court.gov.il/Files_ENG/02/690/007/
a34/02007690.a34.HTM> (hereinafter Targeted Killings).
103
Before examining the targeting question, the Court had to resolve two preliminary questions:
first, it (somewhat questionably) held that the conflict between Israel and Palestinian groups in the
occupied territories should be qualified as an international armed conflict; second, it held that the
suspected terrorists designated as targets can be qualified as civilians taking a direct part in hostilities—
see Targeted Killings, paras 6–18, 33–40.
104
Targeted Killings, para. 40.
105
See Art. 51(5)(b) of Additional Protocol I.
But the Court imposed a further condition—a terrorist may not be targeted if
less harmful means can be employed, i.e. if he can be captured and put on trial. In
the Court’s own words, ‘[t]rial is preferable to use of force. A rule-of-law state
employs, to the extent possible, procedures of law and not procedures of force.’106
Now, it is not entirely clear whether the Court derived this rule from IHRL or from
domestic constitutional law, but it is clear that it was a human rights norm that it
was applying.107 It used the kernel of a human rights rule—that necessity must be
shown for any intentional deprivation of life—to restrict the application of an IHL
rule—that in armed conflict no necessity need be shown for the killing of comba-
tants or civilians taking a direct part in hostilities. This does not mean, of course,
that when applied to a specific set of facts the legally different IHL and IHRL
norms would ultimately produce different results. What it means is that in every
case some measure of justification will have to be offered as to why the killing of a
particular individual was necessary on the facts of that case, and that this justifica-
tion cannot be exhausted merely by invoking the person’s status under IHL.
The Court’s holding was not based on lex specialis or any other form of
mechanical reasoning. It made a policy and value judgment that in the context of
the prolonged Israeli occupation of Palestinian territories the traditional IHL
answer was no longer satisfactory, and it had a legal basis in human rights law to
say so.108 When one adversary possesses overwhelming strategic and tactical
superiority; in the context of an occupation, especially a prolonged one; during a
limited insurgency or non-international armed conflict; in situations, in other
words, which lend themselves more easily to non-lethal approaches, the imposition
of an IHRL necessity requirement becomes more and more attractive. 109
It is questionable, however, whether this necessity requirement could be effec-
tively applied in a more traditional battlefield setting. There is perhaps no other area
of potential norm conflict where the infusion of IHL with IHRL could lead to a
greater slide into utopia, and a consequent slide into irrelevance. It might be better
to have some rules which are effective, than rules which satisfy our moral intuitions
but are honoured only in their breach. If the IHRL necessity requirement is to be
106
Targeted Killings, para. 40.
107
The Court thus cited the McCann judgment of the European Court—see above note 100.
108
‘Arrest, investigation, and trial are not means which can always be used. At times the possibility does
not exist whatsoever; at times it involves a risk so great to the lives of the soldiers, that it is not required.
However, it is a possibility which should always be considered. It might actually be particularly practical
under the conditions of belligerent occupation, in which the army controls the area in which the operation
takes place, and in which arrest, investigation, and trial are at times realizable possibilities. Of course, given
the circumstances of a certain case, that possibility might not exist. At times, its harm to nearby innocent
civilians might be greater than that caused by refraining from it. In that state of affairs, it should not be
used.’ Targeted Killings, para. 40 (citations omitted). See also Milanovic, above note 88, at 390–2.
109
See in that regard the excellent recent study by M. Sassòli and L. Olson, ‘The Relationship
between International Humanitarian and Human Rights Law where it Matters: Admissible Killing and
Internment of Fighters in Non-International Armed Conflicts’ (2008) 90 IRRC 599, at 613–14, who
come to a similar conclusion when it comes to the dependence of the IHRL rule on the level of state
control. Where regretfully I part company with them is in their assertion that the lex specialis principle
has something to do with this outcome. Similarly, see also L. Doswald-Beck, ‘The Right to Life in
Armed Conflict: Does International Humanitarian Law Provide All the Answers?’, (2006) 88 IRRC
881; Prud’homme, above note 79, at 391.
applied at all in such situations, contra IHL, it will in any event have to be read
down significantly to be effective, flexible, and practicable.110 But again, even if
IHRL is read down so far that it would never consider as arbitrary a killing of a
combatant who is not hors de combat, per IHL, this would not be because of the lex
specialis principle, but because of a policy judgment that IHRL has to be (forcibly)
read down far enough to be effective. This policy judgment on the other hand
requires a degree of legitimacy to be made, and again it is in my view doubtful that
courts possess such legitimacy to fix antinomies left to them by states, the law’s
creators.
C. (Transformative) occupation
My final example of potentially unresolvable conflict between IHRL and IHL will
be that of occupation. Suppose that the UK becomes the belligerent occupant of a
territory that has Sharia as part of its domestic law—e.g. Iran. The Penal Code of
Iran prescribes stoning as a punishment for adultery, and even has a stunning
provision which stipulates that ‘[t]he size of the stone used in stoning shall not be
too large to kill the convict by one or two throws and at the same time shall not be
too small to be called a stone’.111 Since the UK is in effective overall control and
thus possessing jurisdiction over a part of Iranian territory, the ICCPR and ECHR
are applicable. Both treaties require the UK to ensure or secure the human rights
of all individuals within its jurisdiction, even against violations by other actors.
A punishment of stoning for adultery undoubtedly qualifies at the very least as
inhuman treatment under either of these treaties.
As for IHL, Article 43 of the Hague Regulations provides that ‘[t]he authority of
the legitimate power having in fact passed into the hands of the occupant, the latter
shall take all the measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country’. Article 64 of the Fourth Geneva Convention is even more
pertinent for our example, stipulating that ‘[t]he penal laws of the occupied
territory shall remain in force, with the exception that they may be repealed or
suspended by the Occupying Power in cases where they constitute a threat to its
security or an obstacle to the application of the present Convention’.
110
Some scholars have resorted to a different, yet with respect ultimately unconvincing, approach to
avoiding this norm conflict, by claiming that IHL like IHRL also imposes a necessity requirement for
civilians taking a direct part in hostilities, and possibly even combatants—see N. Melzer, Targeted Killing
in International Law (Oxford University Press, 2008), 228, 336 et seq, esp. at 397; Droege, above note 6, at
526. See also Abresch’s review of Melzer’s book, in (2009) 20 EJIL 449. Another step in this direction was
made in the recently published ICRC Interpretative Guidance on the Notion of Direct Participation in
Hostilities under International Humanitarian Law, available at <http://www.icrc.org/Web/eng/siteeng0.
nsf/htmlall/direct-participation-report_res/$File/direct-participation-guidance-2009-icrc.pdf>, at 77 et
seq. For commentary, see D. Akande, ‘Clearing the Fog of War? The ICRC’s Interpretive Guidance on
Direct Participation in Hostilities’, EJIL: Talk!, 4 June 2009, available at <http://www.ejiltalk.org/
clearing-the-fog-of-war-the-icrcs-interpretive-guidance-on-direct-participation-in-hostilities/>.
111
Art. 104, Penal Code of Iran, available at <http://www.wluml.org/english/newsfulltxt.shtml?
cmd[157]=x-157-555118>.
The example that I have given is at least that of an apparent norm conflict. On
one hand, IHRL commands the UK to take all possible measures to prevent the
stoning of adulterers in the territory that it has occupied. On the other hand,
because it considers occupation to be a temporary situation which requires defer-
ence to the displaced sovereign, IHL prohibits the UK from changing the laws of
the occupied country, particularly its penal laws.112 Can these two contradictory
obligations somehow be reconciled?113
To do that, we would either have to read down the IHL obligation, or the IHRL
obligation. When it comes to IHL, Article 43 of the Hague Regulations is a
somewhat easier target—it prohibits the occupant from altering the domestic law
of the occupied territory unless it is ‘absolutely prevented’ from maintaining it in
force. We can therefore say that the UK’s IHRL obligation to put a stop to any
inhuman treatment does, in fact, ‘absolutely prevent’ it from respecting Iran’s
domestic law.114 Article 64 of the Fourth Geneva Convention is less malleable—
the domestic penal law must be kept in force, with only two possible exceptions.
Does maintaining stoning for adultery constitute a threat to the security of the UK,
the occupying power? Hardly. Is it an obstacle to the application of the Convention
itself? Well, no, not really. There is no other obligation of the UK derived from the
Convention that it could not fulfil while allowing the courts of the ancien régime to
go about their brutal business. In reality, therefore, Article 64 can only be read
down forcibly, if it is in effect rewritten to accommodate change in domestic laws
which are incompatible with the occupant’s (and perhaps even the displaced
sovereign’s) IHRL obligations.
If IHL cannot consistently and reasonably be read down to accommodate IHRL,
how about IHRL? We could say something like this: the UK’s positive obligation to
secure or ensure respect for human rights in occupied territories even by non-state
actors is one of due diligence. It requires the state only to do all that it reasonably
can to prevent violations. Because in this particular instance doing so would require
the UK to violate some of its other obligations under international law, the UK’s
positive obligation should be read as not requiring the UK to do so.
This is a textually and conceptually perfectly reasonable reading down of IHRL.
But recall what I have said above—though a price must be paid if IHRL is to be
applied jointly with IHL, that price must not be too steep. I personally—and
I suspect most other international lawyers—would never read down IHRL to
accommodate stoning for adultery, even if as a technical matter it may be perfectly
appropriate to do so.
This, however, is simply because of a policy and value judgment that I have made
on the issue, because I care more about human rights than about consistency in
international law in this particular instance. It is the values enshrined in the IHRL
112
See generally M. Sassòli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying
Powers’, (2005) 16 EJIL 661.
113
On transformative occupations generally, see A. Roberts, ‘Transformative Military Occupation:
Applying the Laws of War and Human Rights’, (2006) 100 AJIL 580; G. Fox, Humanitarian Occupation
114
See Sassòli, above note 112, at 676; Thienel, above note 40, at 126–7.
treaties that would make their reading down forced and inappropriate. Legally,
then, there is an unresolvable norm conflict, with no norm having priority over the
other. The UK would have a political choice to make as to which obligation to
keep, and which to breach, and that is that. Yes, we would all like it to choose the
ICCPR and the ECHR over the Fourth Geneva Convention in this particular
instance, especially because it is likely that it would not suffer many ill conse-
quences for its breach of the latter, but we would do so because of our own value
judgment and a political calculation that this is how things should be, not because
the law warrants this choice.
This example is particularly instructive because of how potentially far-reaching it
could be. First, unlike the previous examples of targeting and detention, it does not
deal merely with a state’s negative obligations towards individuals, whose rights it
must not violate through the actions of its own organs or agents, but with its
positive obligation to secure or ensure respect for human rights even by other
actors. Secondly, in my previous examples a state would not incur any responsib-
ility for having to abide by a stricter IHRL standard as opposed to a looser IHL
standard, though as a practical matter its liberty to act might be significantly
curtailed. In this example, however, conflicting IHRL and IHL obligations meet
head on, and one cannot be fulfilled without violating the other. Finally, the
example again exposes the shifting boundary between interpretation and legislation,
and the need to somehow maintain it. As a matter of policy, we do not want to
entirely abandon the rule that the occupant must not alter the legal system of the
occupied territory—by and large, this is a good rule115—we just want to carve out a
human rights exception to that rule. Absent a legislative change, however, this can
probably be done only by either violating or doing violence to the Fourth Geneva
Convention.
6. Concluding Remarks
Improved enforcement and further humanization of IHL through the application
of IHRL is the ultimate goal of this entire project—to bring states that created these
treaties to the logical, legal, and moral conclusions that are mandated by their text,
but even more so by their fundamental normative underpinnings, the values that
inspire them. This imperative is of particular cogency in an extraterritorial context.
As we have seen, to have any hope of advancing this goal we must be practical and
be prepared to apply IHRL standards in a more flexible fashion. Yet we also need to
drop the pretence, inspired by a false analogy with domestic public law, that states
have in their infinite wisdom created two legal regimes which mesh together
perfectly. They simply do not, either in the texts of the treaties, or in the values
115
Generally on the evolution of the conservationist premise of belligerent occupation as a
temporary condition during which the order imposed by the displaced sovereign should not be varied
see N. Bhuta, ‘The Antinomies of Transformative Occupation’, (2005) 16 EJIL 721.
and policy considerations behind them.116 Frequently, their relationship is that of
conflict.
To address these norm conflicts, we have a variety of tools at our disposal. The
most helpful are those of norm conflict avoidance, which are interpretative in
nature. Among these tools, but not among the most useful, is lex specialis. To
again take preventive detention as an example, if faced with a pure IHL/IHRL case
arising from the occupation of Iraq, the European Court might in the end forcibly
read down Article 5 ECHR as if setting an arbitrariness standard that could
accommodate IHL like Article 9 ICCPR, but this would not be as a consequence
of the lex specialis principle, but because it weighed the competing policy con-
siderations so as to warrant such a result even in the absence of a derogation.117 As
is so often the case with legalese Latin, lex specialis is descriptively misleading, vague
in meaning, and of little practical use in application. It should be discarded
generally, and it should especially not be used to describe the relationship between
IHL and IHRL as a whole.118
More often than not, IHL treaties and human rights treaties can be reconciled
and interpreted harmoniously. But there will be instances, there are instances,
where this quest for harmony will fail, when the two bodies of law cannot be
reconciled, when all legitimate methods of norm conflict avoidance and resolution
will be exhausted, and when ultimately a political choice will have to be made as to
which of the conflicting norms should be given priority over the other.
That choice can rarely, if ever, be made by a court—sometimes it is only the
legislator who produced the antinomy who can provide the remedy for it. The more
forced the methods of avoidance, the less legitimate they are; the line between
interpretation and legislation may often be a fine one, but it is nonetheless still
there.119 And when all methods of norm conflict avoidance and resolution fail,
there is nothing shameful in admitting defeat and saying that in this or that
particular instance IHL and IHRL cannot be reconciled. Just as a UK court can,
after doing its best, ultimately say that a particular act of Parliament is incompatible
with the Human Rights Act, so it can say that the internment of POWs and
civilians during the occupation of Iraq was lawful under IHL, but unlawful under
the ECHR.120
It is, of course, not an easy thing for a court to say, nor should it be. No wonder
then that courts rarely, if ever, openly acknowledge the possibility of unresolvable
conflict. To take Al-Skeini as the prime example, it is often far easier for courts to
deny that IHRL applies at all, based on entirely arbitrary criteria (viz. that the
ECHR applies to a person killed in the custody of UK troops in Basra, but not to
116
See also Schabas, above note 9.
117
See also Lindroos, above note 79, at 42.
118
See also Prud’homme, above note 79.
119
For a discussion on the frequently complex and ambiguous nature of this boundary, see
A. Kavanagh, ‘The Elusive Divide between Interpretation and Legislation under the Human Rights
Act 1998’, (2004) 24 OJLS 259.
120
But see Ben-Naftali and Shany, above note 27, at 103.
persons killed by UK troops on patrol121), switching IHRL on when it becomes

morally intolerable not to do so, and off when it becomes impracticable, rather than
addressing hotly disputed substantive issues which may expose unresolvable norm
conflicts. However, norm conflicts are in themselves not so undesirable that they
must be avoided or resolved at any cost. They are immanent to the international
legal system, due to its decentralized, non-hierarchical nature, and the consensual
character of its law-making processes.122 They occur as much in peacetime as
in wartime, intraterritorially as extraterritorially—e.g. in Soering and Matthews.
Indeed, exposing an unresolvable norm conflict may ultimately prove to be more
productive then forcibly avoiding it, as nothing will give a better incentive to states
to improve the normative framework within which we must operate. And, of
course, a good place for states to start would be for them to use mechanisms
which are already in place, such as derogations.
121
See also Hampson, above note 21, at 570.
122
See also Lindroos, above note 79, at 28.
General Conclusion
One purpose of this study was to dispel the numerous methodological misconcep-
tions which abound both in the jurisprudence on the extraterritorial application of
human rights treaties and in academic commentary. The greatest of these is the
Bankovic fallacy that the notion of state jurisdiction in human rights treaties reflects
that notion of jurisdiction in general international law which delimits the munici-
pal legal orders of states. I hope to have shown that these two concepts are not the
same, and that conflating them is a category error that would produce completely
absurd results if actually applied consequentially (which it is not). This is not to say
that the word ‘jurisdiction’ has a special meaning in human rights treaties. Rather, it
has several ordinary meanings in general international law, and the interpreter has to
establish which of these meanings the treaties in fact use. That meaning, I have
argued, is one of state control over territory, and perhaps individuals.
Clarifying the conceptual and doctrinal confusion stemming mainly from the
different meanings of the word ‘jurisdiction’ is not only its own reward—it is a
necessary first step in properly interpreting the relevant treaties. This is how
interpretation works—it begins from the text. But interpretation alone, in the
narrower sense of establishing the semantic meaning of a legal text, is insufficient.
Even if the semantic meaning of the word ‘jurisdiction’ was deciphered and the one
that I favour adopted, we would then still have to construct the rules which translate
this meaning to specific factual situations.
What is an ‘area’? What counts as ‘effective overall control’? To which obliga-
tions does this jurisdictional requirement apply? These questions can only be
answered by looking at the object and purpose of human rights treaties, and the
policy considerations which drive both courts and states in their decision-making.
I have argued that the two considerations which matter most are universality and
effectiveness, while the one that should matter the least (or not at all) is sovereignty
or title over territory. The same problems of effectiveness that we have examined in
an extraterritorial context can occur intraterritorially as well, ranging from an
internal armed conflict to a total loss of state control over a portion of its territory.
Hence, the truly vexing cases are not those which occur outside the territory which
the state owns, but outside the territory which it controls.
This brings us to the choice between the several possible models of extraterritor-
ial application. As we have seen, a purely spatial model of jurisdiction such as state
control of an area would lead to numerous situations that would be excluded from
the treaties’ scope of application, with states being free to do as they will whenever
they act in a territory that they do not themselves control. To an extent, these
difficulties can be mitigated by applying the spatial model to ever smaller geograph-
ical areas, down to places or artificially constructed objects. This, however, can only
be done up to a point, and this is where the personal model of jurisdiction as
control over individuals steps in. Yet, in turn, there is no principled, non-arbitrary
way of limiting this model and preventing its collapse, because the normative pull
of universality is such that it is hard to rationalize why a state which is fully in
control of the conduct of its own organs and agents should not have the obligation
to refrain from violating the human rights of others when it is perfectly capable of
complying with this obligation.
Therefore, the rule that I propose is clear and simple: the state obligation to
respect human rights is not limited territorially; however, the obligation to secure or
ensure human rights is limited to those areas that are under the state’s effective
overall control. This is, in my view, the only model of state jurisdiction and
extraterritorial application that is stable in the long run. Not only does it have the
benefit of clarity and predictability, it also provides the best balance among its
competitors between the often conflicting demands of universality and effectiveness.
As I have endeavoured to explain, it is precisely the fear of courts—particularly of
the European Court—that applying human rights treaties to extraterritorial situa-
tions would be impracticable and would unreasonably restrict the states’ freedom to
act that has led to the current state of the jurisprudence, where the issue of state
jurisdiction and extraterritorial application is not really the purely preliminary,
threshold question that it should be, but rather involves a furtive assessment of
the merits. Almost all of confusions and contradictions in the case law are ultimate-
ly explicable by the policy tension between universality and effectiveness. Where
that tension is best addressed, however, is on the merits of substantively very
difficult and complex cases. But because courts are reluctant to address these merits,
they fashion wholly artificial limitations on the territorial scope of human rights
treaties (or for that matter, domestic constitutional protections of individual rights),
only to carve out even more artificial exceptions from these limitations when it
would be morally intolerable not to do so. To return again to the example
of Al-Skeini, its result was not determined by the arcane intricacies of the concept
of state jurisdiction, let alone by the validity of an analogy between a prison and an
embassy, but by the moral assessment by the judges that it would be unacceptable
for a person killed in captivity by British soldiers to be unprotected by the ECHR,
coupled with the parallel fear that extending the ECHR to the other five applicants
would simply go too far, requiring courts to micromanage the use of military force
under Article 2 ECHR. We have seen many similar cases in municipal jurispru-
dence.
This fear on the part of judges that they are institutionally now out of their
depth, and their fear of inflexibility in extraordinary situations, must be adequately
addressed for the question of extraterritorial application to truly become prelimi-
nary and divorced from the merits. Addressing these fears is necessarily going to be
a gradual, and often messy, process. Flexibility would need to be shown not only by
judges, but also by applicants and human rights activists. For their part, govern-
ments should be prepared to actually use the tools provided to them by the treaties
themselves to add needed flexibility—most importantly derogations. Likewise, for
all the possibility of unresolvable norm conflict, when interpreting human rights
treaties courts should in appropriate situations take into account with more
confidence the rules of other branches of the law, such as IHL. However, we
must always be mindful of the limits on our faculties; the integrity of human rights
regimes must be protected, and bodies of law alien to them, such as IHL, can be
imported only to an extent.
Let me conclude by saying that I certainly do not suffer from the naïve belief that
my proposed model of extraterritorial application will be adopted any time soon. At
least when it comes to Strasbourg, it requires a major departure from existing
jurisprudence, above all from Bankovic. Not only are judges naturally risk-averse,
and are loathe to overturn existing precedent. It is even harder for them do so while
the ground has not been sufficiently prepared, as it were, by introducing adequate
flexibility into the ECHR system that could accommodate its application to
Afghanistan or Pakistan or what have you. In turn, it is harder still to introduce
such flexibility without actually being able to substantively apply the ECHR in an
extraterritorial setting. This vicious circle will be hard to break.
It is thus far more likely that the European Court will continue with its current
approach for as long as it can, by grasping the rigid spatial model of Bankovic in one
hand, and carving out exception after exception from it with the other, when not
doing so would offend its notions of substantive justice. And, of course, the more
this unhappy state of affairs persists, the more the whole approach is exposed as
unprincipled and unworkable. Ironically, it is often the relatively small cases—your
Stephenses, Medvedyevs, or Litvinenkos—which show this most clearly. I would
also submit that the circle has already started to break with the European Court’s
engagement with politically controversial and legally and factually complex situa-
tions in Chechnya and Turkey, which it has managed to deal with reasonably well
despite the difficulties. Similarly, despite all its problems, the application of the
ECHR to Iraqi cases by both the Strasbourg and UK courts shows us that this can
be done successfully and that human rights can have an impact, and, at that,
without the sky falling.
It was not the purpose of this study to try to reconcile the conflicting strands of
jurisprudence, particularly that of the Strasbourg court. This study is not a brief,
nor am I counsel in an actual case, trying to persuade the judges of the wisdom and
coherence of their prior case law, which my case supposedly fits perfectly. Rather, as
I see it, the benefit—perhaps the sole benefit—of an academic examination is that
it can be more honest than that. The current Strasbourg approach is so flawed that
it cannot be fixed with a minor ‘clarification’ here or a ‘distinguishing’ there. What
it needs is radical surgery.
Whether this will happen depends primarily on the level of pressure that the
European Court, and to a lesser extent other courts and human rights bodies, are
subjected to with respect to extraterritorial application. It is only if cases keep piling
up, if advocacy groups maintain their efforts, and if tinkering with the current
approach becomes manifestly insufficient to prevent intolerable results, that a
radical change will truly become possible. This, I think, is a fundamental point.
Again, the reason why we have so many cases on extraterritorial application today
that we did not have decades ago is not globalization, nor is it because of some true
novelty in state behaviour. States have always killed, detained, or otherwise mis-
treated people outside their territory (although perhaps not through the use of
drones or radioactive poisons)—indeed, this was a major purpose of their existence.
Rather, it is because we have through the preceding decades increasingly inter-
nalized human rights norms and universality as their foundation that litigation and
activism based on the extraterritorial application of human rights treaties have
become both possible and effective. It is only if these processes continue to bear
fruit that universality can truly become unbound.
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Index
Abductions 24, 122, 126, 129, 154, 165–166, Drones 2, 8, 54, 103, 115, 120–121, 172, 191,
172, 175, 206, 229–259 219; see also Killing
Aircraft see Control; over places, ships, and Due diligence see Negative and positive
aircraft obligations
American Convention on Human Rights
(ACHR) Effective control see Attribution of conduct;
Armed conflict 18–20, 43–45, 51, 94, 112, 114, Control
120, 218 Effectiveness, tension with universality 66–67,
Attribution of conduct: 69–72, 94–96, 103–117, 146, 219–222,
as a possible prerequisite for jurisdiction 229–232, 256–257
51–52, 148–150 Eichmann, Adolf 24, 54, 122–123, 126, 154,
distinguished from jurisdiction 20, 41–51, 199, 206
134, 136–137, 139–140, 173 Embassies 61–62, 88, 91, 96, 116, 153–160,
tests of control 44–45, 136–137, 205 167, 171, 182, 188, 193–194, 244–245
see also Control; Jurisdiction; Responsibility Enforced disappearances 30–32, 160–161
Environment see Transboundary environmental
Black sites, CIA 122, 124, 129–130, 153–154, harm
171 Espace juridique 50–51, 85–93, 108, 121, 145,
172, 186, 191
Citizenship 67–83, 107–108, 155, 193–199 Extradition see Non-refoulement
Colonial clauses 10, 13–17, 35, 37, 84, 87, Extrajudicial execution see Killing
90–91 Extraterritorial application of human rights
Consular and diplomatic agents 82–83, treaties, definition of 7–9
154–160, 182, 193, 197–198 Extraterritorial jurisdiction see Jurisdiction
see also Embassies Extraterritorial law enforcement 126, 172, 199–207
Control:
in international criminal law 53 Federal clauses 13, 17
in state responsibility see Attribution of
conduct Geneva Conventions, extraterritorial application
lawful or unlawful; (non-)exercise of a legal of 17–18, 173
power 126–135, 199–207 Guantanamo 8, 36, 58, 60, 69, 72–80, 96–97,
over individuals 87–91, 118–119, 152, 99–100, 110, 122, 124–125, 179, 181,
164–167, 173–209 191, 224, 234–235
over places, ships, and aircraft 123, 129–135,
151–170; see also Embassies High seas 161–162, 167, 169–170
over territory 48–49, 87–91, 118–119,
127–129, 136–141, 170–173; see also Immunities see Consular and diplomatic agents,
Occupation Embassies
see also Jurisdiction
Customary international law: Jurisdiction:
and normative hierarchy 237 in general international law; jurisdiction to
as not providing a solution to the prescribe and the jurisdiction to
extraterritoriality problem 3 enforce 23–26, 29, 64, 81–82, 158, 161,
197–198
Deference 98–103, 110–111, 196 in human rights treaties 8, 19–23, 26–34,
Deprivation of liberty see Detention 39–41
Detention 122, 162–165, 169, 187–193, see also Attribution of conduct; Control;
249–250, 252–254 control over territory; control over
Derogation from human rights treaties 79, individuals
111–115, 218, 231, 235, 238–239, Jurisdiction clauses in human rights treaties
250–255, 260–261 11–13, 34–39; see also Jurisdiction
Diplomatic agents see Consular and diplomatic agents treaties without jurisdiction clauses 227–228
276 Index
Jus ad bellum and jus in bello 135, 231 Proportionality:
Jus cogens 104–105, 237–238, 242–243 introducing flexibility into the tension
between universality and effectiveness
Killing 120–121, 123, 158, 169–172, 187, 110–114
190–191, 217–218, 254–257
Litvinenko, Alexander 6, 54, 171–172, Relativism and regionalism 83–96, 108–109;
217–218 see also Espace juridique
see also Drones Reparation 144, 228
Reservations 16–17, 130
Law of treaties: Responsibility:
generally on territorial application of complicity 79, 121, 124–126, 172,
treaties 9–11 179, 219
on interpretation see Treaty interpretation international organizations, of 148–150,
Lex posterior 237, 239, 251 178–179
Lex specialis 59, 232, 233–235, 249–252, 260 see also Attribution of conduct; Control
Migrants see Non-refoulement Ships see Control; over places, ships, and aircraft
Social contract see Citizenship
Nationality see Citizenship Sovereignty 8, 16, 25–26, 29, 36, 58–75, 79,
Necessity (targeting) 254–257 101, 106–107, 109, 111, 123, 127,
Negative and positive obligations 18, 46–51, 151–153, 161, 198, 200, 206, 226,
119, 121, 143, 209–222 245–246, 258; see also Jurisdiction
Non-refoulement 8–9, 104–105, 123, 131–132, State responsibility see Responsibility
168–169, 243–248
Norm conflicts: Territorial title see Sovereignty
and effectiveness 103–107 Torture 29–32, 65–67, 98, 104, 123–128,
avoidance and resolution 104–105, 236–248 130–131, 152, 159, 171–172, 190–191,
between human rights and humanitarian 212–215, 219, 240, 243
law 93–94, 252–259 Transboundary environmental harm 126–127,
between human rights and other rules of 172, 218
international law 132,159–160, 240–248 Travaux préparatoires:
of the ECHR 15, 38–39
Occupation: of the ICCPR 129, 224–226
belligerent 18, 28, 53, 59, 120, 122, 137, Treaty interpretation 5–7, 54–55, 173,
141–143, 146–150, 170, 256–259 212–215, 222–227, 231, 262
pacific 141, 147, 150 avoiding arbitrariness or absurd results
relationship with extraterritorial application 97–98
and control over territory 141–147
transformative 150, 257–259 Universality of human rights 55–58, 106–117,
171, 177, 198, 209–212, 219–222, 263
Piracy 25, 123, 168 indivisibility of human rights and regime
Positive obligations see Negative and positive integrity 57, 114–115, 141
obligations see also Effectiveness, tension with universality

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OXFORD MONOGRAPHS IN

RECENT TITLES IN THE SERIES

List of Abbreviations xiii

II. From Compromise to Principle 19

III. Policy Behind the Rule 54

IV. Models of Extraterritorial Application 118

3. The Personal Model: Jurisdiction as Authority

V. Norm Conﬂicts, International Humanitarian Law, and

General Conclusion 262

NOTE ON METHOD OF CITATION

M. Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application

European Court of Human Rights

Inter-American Commission of Human Rights

Inter-American Court of Human Rights

International Criminal Tribunal for the Former Yugoslavia

UN Treaty Bodies: Human Rights Committee

UN Treaty Bodies: Committee Against Torture

UN Treaty Bodies: Committee on the Elimination of Racial Discrimination

National case law

1. Outline and Scope of the Study

in relation to other international agreements. Much has already been written on

2. Deﬁning Extraterritorial Application

tantamount to inhuman treatment.30 Such cases do not involve extraterritorial

3. The Law of Treaties Provides No General Answer

Having explored what is meant by the extraterritorial application of human rights

4. Basic Normative Framework

B. Treaties with dedicated provisions on territorial application

Human Rights’, (2006) 76 BYIL 121, at 136–58.

C. Treaties with no provisions on territorial application

1. A Threshold Criterion: Jurisdiction of a State, Not the

2. Jurisdiction’s Many Meanings

B. Jurisdiction in general international law

E. Origins of jurisdiction clauses

Asking these questions is to answer them. As I have demonstrated above, the

3. State Jurisdiction Is Not State Responsibility

A. Loizidou: a test of attribution?

B. The ﬁrst possible reading of Loizidou

applications submitted by Cyprus against Turkey. In its reports on previous

C. The second possible reading of Loizidou

D. Attribution as a prerequisite for jurisdiction

‘effective control’ as sometimes used in humanitarian law to describe the threshold

meanings and concepts of ‘jurisdiction’ that produced Bankovic. Rather, Bankovic

2. Universality and Human Dignity

3. Sovereignty and Territory

The most common argument against extending fundamental rights guarantees to

4. Sovereignty and Comity to the Territorial State

B. Canadian case law on sovereignty and comity

nationals detained by Canadian forces in Afghanistan, claiming that these detainees

C. Comity as a distraction from effectiveness

signiﬁcantly reduce Charter guarantees in some cases of searches and seizures, as

5. Sovereignty, Citizenship, and the Social Contract

B. The Guantanamo cases

C. Evaluating citizenship as a ground for extraterritoriality

6. Relativism and Regionalism

A. Relativism and regionalism before the European Court

B. Relativism and regionalism in Al-Skeini

156 157 158

159 160 161

164 165 166