Towards the True Universality of Human Rights? : An analysis of the Strasbourg Court’s development of a Functional Approach to Extraterritorial Jurisdiction and the Implications for the Protection of the Human Rights of Civilians Abroad During Conflicts

Abstract

Current conflicts increasingly affect civilians, involve multiple parties, and are of ambiguous nature. Therefore, international law and international human rights bodies, must develop new methods to approach alleged human rights violations taking place in such contexts. This thesis analyses one of these methods, i.e., the extraterritorial application of international and regional human rights treaties. Especially the European Court of Human Rights (ECtHR), has adopted a restrictive approach concerning the extraterritorial application of the European Convention on Human Rights (ECHR), and is therefore the main focus of this thesis. The core issue concerning extraterritorial application of human rights treaties is the notion of jurisdiction. Thus, the understanding of jurisdiction in this capacity is analysed, and how the development of a new understanding of jurisdiction, that is functional jurisdiction, can be seen in the Court’s judgments within the area. However, the issue is controversial as the exercise of jurisdiction is closely tied to the autonomy of a State and a State’s territory. Nevertheless, the expansion of State jurisdiction and the development of a functional approach to jurisdiction would make it possible to take all facts into consideration during all stages of military operations abroad to sufficiently safeguard individual’s human rights.

The finding and establishment of the exercise of jurisdiction is of utmost importance, as the exercise of jurisdiction is a necessary condition for a State to be able to be held responsible for acts or omissions imputable to it. Additionally, international human rights law only binds States vis-á-vis their relations with individuals within their jurisdiction. In its findings, the Court has mostly relied on the principle of territoriality and the traditional bases for extraterritorial jurisdiction, which is State agent authority and control (personal jurisdiction) as well as, effective control over an area (territorial jurisdiction). This thesis, through an analysis of decisions and judgments by the Court, seeks to identify the progression of these traditional principles to also include elements of functionality. This thesis, thus, sets out to explore in what instances the Court has found there to be a jurisdictional link between individuals and a Convention State acting abroad. However, when analysing the judgments, it becomes evident that there is no clear approach by the Court, and instead of developing a comprehensive framework on extraterritorial State jurisdiction, most of its conclusions are based on a case-by-case basis, resulting in judicial ambiguity. It is clear that the Court still needs to develop its approach to such matters. Nevertheless, recent judgments indicate a shift in the reasoning by the Court in favour of the protection of civilians’ human rights, and a functional approach to jurisdiction, which takes into account the broader framework military operations abroad are conducted in.