By Marko Milanovic
Questions as to whilst a kingdom owes tasks below a human rights treaty in the direction of anyone situated outdoor its territory are being introduced increasingly more often sooner than either foreign and household courts. sufferers of aerial bombardment, population of territories below army career, deposed dictators, suspected terrorists detained in Guantanamo via the USA, and the family members of a former KGB undercover agent who used to be assassinated in London by utilizing a radioactive toxin, allegedly on the orders or with the collusion of the Russian executive - all of those humans have claimed safety from human rights legislation opposed to a nation affecting their lives whereas appearing outdoor its territory. those concerns are super politically and legally delicate, resulting in a lot confusion, ambiguity, and compromise within the latest case legislations.
This examine makes an attempt to remedy a few of this confusion, and reveal its genuine roots. It examines the idea of nation jurisdiction in human rights treaties, and locations it in the framework of overseas legislation. it isn't restricted to an inquiry into the semantic, traditional which means of the jurisdiction clauses in human rights treaties, nor even to their building into possible criminal recommendations and principles. really, the translation of those treaties can't be entire with out reading their item and objective, and many of the coverage issues which impact states of their behaviour, and courts of their decision-making. The e-book therefore exposes the strain among universality and effectiveness, that's itself the reason for methodological and conceptual inconsistency within the case legislation. ultimately, the paintings elaborates at the numerous attainable versions of the treaties' extraterritorial software. It deals not just a serious research of the present case legislations, yet explains a number of the techniques which are sooner than courts and states in addressing those concerns, in addition to their coverage implications.
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Additional info for Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy
Sample text
Ryngaert, Jurisdiction in International Law (Oxford University Press, 2008), at 5 et seq. , I.
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. 17 The first of these is the jurisdiction to prescribe—also termed legislative jurisdiction or compétence normative—the state’s authority to make or prescribe legal rules.
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. 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 anything 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.