Extraterritorial Application of The European Convention on Human Rights: Territorial Focus in the Age of Globalization?

Abstract

According to Article 1 ECHR, States Parties are under the obligation to guarantee the Convention rights and freedoms to persons ‘within their jurisdiction’. In the famous Banković decision the European Court of Human Rights interpreted the notion of jurisdiction restrictively, considering it as an essentially territorial concept and its extraterritorial exercise as strictly exceptional. The decision has thus imposed a strong presumption against the applicability of the Convention to extraterritorial state conduct. This article explores the subject of extraterritorial application of the ECHR in view of the Court’s recent case law on Article 1. It shows that unlike in the case law of the European Court, jurisdiction in public international law is a flexible concept, the meaning of which is not necessarily restricted to territoriality. The article demonstrates that in the context of human rights treaties it is possible to devise a more suitable concept of jurisdiction; a concept that would be compatible with the general international law of jurisdiction and at the same time would make it possible to respond to the challenges posed by the globalization of state conduct affecting human rights.