The Extraterritorial Application of Selected Human Rights Treaties

Copyright

Dedication

Table of Contents

Introduction

1. Origins of the Current Debate

2. Object and Method of the Present Investigation

3. Are States Bound By Human Rights Treaties When They Operate Abroad?

A. Main Arguments Supporting the Territorial Application of Human Rights Treaties

B. Main Arguments Supporting the Extraterritorial Application of Human Rights Treaties

Chapter 1: The International Covenant on Civil and Political Rights

Preliminary Considerations on the Interpretation of International Treaties

1. Wording and Origins

2. History of the Proceedings

A. Spatial Scope of the Covenant During the Initial Phase (1947–1948)

B. Relevant Developments During the Drafting Phase (1949–1954)

1. A Key Provision

2. Drafters’ Main Focus of Concern: Guaranteeing Rights to Nationals and Aliens in a State Party’s Territory

3. US Amendments to the Jurisdictional Clause

a. Analysis of the US Proposal to Include Reference to ‘Territory’ in the Jurisdictional Clause

4. French Text: ‘Compétence’ Instead of ‘Juridiction’

5. The 194th Meeting of the Commission on Human Rights (1950)

a. Protection of Nationals/Aliens Within/Outside a State Party’s Territory

b. Military Occupation as an Exceptional Situation

c. Reference to the Reach of Penal Law

d. Nature of Rights and Possibility of Ensuring them Abroad

e. Different Phrasings Suggested for Article 2(1)

6. The Failed French Attempt to Delete Reference to ‘Territory’

C. Relevant Developments During the Deliberation Phase (1954–1966)

Conclusion: Extraterritoriality in the Preparatory Work of the ICCPR

3. The Jurisdictional Clause of the ICCPR Interpreted by Monitoring Bodies

Preliminary Considerations

A. Quasi-Judicial Bodies: The Position of the Human Rights Committee

1. Views in Individual Communications

a. Petitions Brought by Persons Who Fled the Country Regarding Events Occurred in the Country

b. Passport Cases

c.Persons Kidnapped by State Agents Operating Abroad

2. General Comments

3. Concluding Observations

a. Military Occupation

b. Troops Operating Abroad in Situations Other than Military Occupation

c. The US Territorial Interpretation of the Covenant

B. Judicial Bodies: The Position of the International Court of Justice

1. Wall Advisory Opinion

2. Judgment in the Case of Armed Activities on the Territory of the Congo

C. Further International Human Rights Mechanisms: UN Special Procedures

Conclusion

Chapter 2: The Spatial Reach of the European Convention on Human Rights

Introduction

1. Wording and Origins of Article 1 ECHR

2. European Commission of Human Rights: ‘Authority and Control Over Persons’

A. Cases Related to Diplomatic and Consular Authorities

B. Cases Involving Arrest or Detention of Persons Abroad

C. Further Exercise of Public Powers Abroad

D. Cases Involving the Presence of Troops Abroad

Conclusion

3. Cases Before the European Court of Human Rights

A. Cases before Bankovic

1. Control over Territory

2. Regular Exercise of Public Powers

3. Non-Refoulement Cases

Conclusion on the Pre-Bankovic Jurisprudence

B. The Bankovic Case

1. Factual Background

2. Parties’ Arguments

3. Decision by the Court

a. Recourse to the VCLT (1969)

1) Ordinary Meaning of Jurisdiction in Public International Law: Primarily Territorial

2) Subsequent State Practice

3) Confirmation of Results: Travaux Préparatoires

b. Recall of the Jurisprudence of the Court on Extraterritorial Jurisdiction

c. Court’s Evaluation of the Case at Hand

1) Cause-and-Effect Notion of Jurisdiction

2) Rendering Reference to Jurisdiction in Article 1 Devoid of Any Purpose

3) Limited Airspace Control as Amounting to Jurisdiction: Comparison with the Soering Case

4) Comparable Treaty Provisions and Jurisprudence of Further Human Rights Bodies on the Subject

5) ‘Ordre Public’ Argument, Avoiding a Regrettable Vacuum and the Legal Space of the ECHR

6) Comparison with then Ongoing Cases on Similar Issues

7) Absence of a ‘Jurisdictional Link’

8) Further Possible Non-Stated Reasons Influencing the Decision in Bankovic

9) Regional Character of the Convention

Conclusion on the Bankovic Case

C. First Cases After Bankovic

1. Control Over Persons

2. Control Over Territory

3. Control Over Persons and Control Over an Area

Conclusion on the First Cases after Bankovic

D. Later Cases After Bankovic

1. Exercise of Public Powers Abroad

2. Effects of Acts Abroad

3. Cases Involving the Presence of Troops Abroad

a. Detention of Persons Abroad

b. Incidents in UN Neutral Buffer Zone

c. Further Military Operations

Conclusion

Overall Concluding Remarks

Chapter 3: The Convention Against Torture

1. A Different Treaty Covering an Absolute Right

2. Extent of States Parties’ Obligations

A. States’ Main Obligation Under the Convention Against Torture

B. Preparatory Work of the Convention Against Torture

1. Discussions on Article 2(1) CAT During the Preparatory Work

2. Discussions on Article 16(1) CAT During the Preparatory Work

3. Discussions on Article 3(1) CAT During the Preparatory Work

3. Doubts Raised on the Geographical Extent of Application of the CAT

A The Position of the United Kingdom

1. The Position of the Committee in Relation to the UK

2. The UK Comments on the Recommendations by the Committee

3. Later Developments Regarding the UK

B. The Position of the United States

1. The Position of the Committee in Relation to the US

2. The US Comments on the Recommendations by the Committee

3. Later Developments Regarding the US

C. The Position of the Committee as Reflected in its Further Practice

Conclusion

Final Conclusion

Bibliography

Table of Cases

Table of Treaties, Legislation, and Other Relevant Instruments

Index