Leiden Journal of International Law

INTERNATIONAL LEGAL THEORY

The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to

SAMANTHA BESSON *

Abstract

The extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresponding duties to those individuals. Examples of extraterritoriality abound in international human rights practice, and in particular in the European Court of Human Rights’ case law. Except for vague and often misleading gestures to the universality of human rights, which allegedly requires their extraterritorial application, however, many of the normative considerations underlying the extraterritorial applicability of human rights have not been broached in the human rights law literature. Nor, conversely, have human rights theorists, even among those who take the supply side of human rights seriously, devoted much attention to the threshold criteria for the abstract recognition of human rights and the trigger of the corresponding duties. To remedy some of those shortcomings, this article endeavours to bring some normative human rights theorizing to bear on the European Court of Human Rights’ recent practice on extraterritoriality. More specifically, the article delves deeper into the notion of ‘jurisdiction’ qua threshold criterion for the applicability of the European Convention on Human Rights both within and outside its states parties’ territories; distinguishes it from related notions such as authority, coercion, power, or control; and explains its normative consequences.

Key words

  • European Convention on Human Rights;
  • extraterritorial application;
  • human rights;
  • jurisdiction;
  • universality

Footnotes

*  Professor of Public International Law and European Law, University of Fribourg and Fellow of the Wissenschaftskolleg zu Berlin (2011–12) [samantha.besson@unifr.ch]. Many thanks are due to Susan Karamanian, Harold Hongju Koh and Paul Schiff Berman, but also to Sir Nicolas Bratza, Jean-Paul Costa, Lech Garlicki, Christopher McCrudden, Michael O'Boyle, Françoise Tulkens, Nina Vajic, Derek Walton, and the other participants in the Joint United States Supreme Court and European Court of Human Rights Conference Judicial Process and the Protection of Rights: The US Supreme Court and the European Court of Human Rights at the George Washington Law School on 1 March 2012; to Armin von Bogdandy, Matthias Goldmann, Arthur Dyevre, Anja Seibert-Fohr, Nele Yang, and the other participants in the Max Planck Institute Lecture Series in Heidelberg on 21 March 2012; to Anna Bettina Kaiser, Helmut Aust, Christian Tomuschat, Nora Markard, and the other participants in the Law & Society Institute Seminar Series at the Humboldt Universität zu Berlin on 15 May 2012. Special thanks also to Tancrède Scherf for his research assistance, to Eleonor Kleber for her help with the editing and formatting of the article, to Pierre d'Argent for our discussions on the topic and his helpful comments, and to an anonymous reviewer for useful remarks and critiques.