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Marko Milanovic, University of Cambridge ATHA Training, June 2010.

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Presentation on theme: "Marko Milanovic, University of Cambridge ATHA Training, June 2010."— Presentation transcript:

1 Marko Milanovic, University of Cambridge ATHA Training, June 2010

2  Article 1 ECHR: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention  Article 2(1) ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant  Article 2(1) CAT Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

3  Jurisdiction of a state, not the jurisdiction of a court  A threshold criterion, cf. armed conflict  Not a rule of attribution

4 [A]lthough Article 1 sets limits on the reach of the Convention, the concept of ‘‘jurisdiction’’ under this provision is not restricted to the national territory of the High Contracting Parties. … Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful - it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it is exercised directly, through its armed forces, or through a subordinate local administration

5  Supported by overwhelming case law ◦ ECtHR – Cyprus line of cases, etc. ◦ HRC – e.g. Israel and the OPT ◦ ICJ – Wall case; Congo v. Uganda  But is it enough?

6 As to the ‘‘ordinary meaning’’ of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States [citations omitted] Accordingly, for example, a State’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that State’s and other States’ territorial competence []. In addition, a State may not actually exercise jurisdiction on the territory of another without the latter’s consent, invitation or acquiescence, unless the former is an occupying State in which case it can be found to exercise jurisdiction in that territory, at least in certain respects. The Court is of the view, therefore, that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case

7  Article 9(2), Disappearances Convention: Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized.

8  Article III, Guantanamo Treaty (1903) While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas

9  Article 2, Slavery Convention (1926): The High Contracting Parties undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, so far as they have not already taken the necessary steps: (a) To prevent and suppress the slave trade; (b) To bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms  Article 1(2) Chemical Weapons Convention (1993): Each State Party undertakes to destroy chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention

10  Use of force without exercising effective overall control of a territory; e.g. Bankovic, Al-Skeini  Targeted killings or assassination; e.g. drones, Litvinenko  Detention, torture of persons in a territory controlled by another state; e.g. Al-Skeini; high-value Al-Qaeda detainees & CIA black sites  Complicity scenarios – UK, US and Pakistan  Transboundary environmental harm; e.g. Ecuador v. Colombia

11  Al-Saadoon, dec., para. 85: The Court considers that, given the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question, the individuals detained there, including the applicants, were within the United Kingdom’s jurisdiction. This conclusion is, moreover, consistent with the dicta of the House of Lords in Al-Skeini and the position adopted by the Government in that case before the Court of Appeal and House of Lords.

12  Cyprus v. Turkey, EurComm’n (1975), para.8 It is clear from the language, in particular of the French text, and the object of this Article, and from the purpose of the Convention as a whole, that the High Contracting Parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad.  ECtHR Issa v. Turkey  HRC, Lopez-Burgos In line with this, it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.  HRC, General Comment 31

13  Universality and human dignity  Sovereignty and territory  Sovereignty and comity towards the territorial state  Sovereignty, citizenship and the social contract  Relativism and regionalism  Effectiveness

14  Jurisdiction as (only) the effective overall control of an area ◦ What is effective? What is an area or territory? What about a place, like a prison or an embassy?  Jurisdiction as (also) the authority and control over an individual ◦ Textual problem; if seen as purely factual control, it collapses into the third model; if seen as something more than that, it is entirely arbitrary  Jurisdiction as a threshold territorial criterion, but applicable only to the positive obligation to secure or ensure human rights, not to the negative obligation to respect them ◦ Textual problem.  What is likely to happen?

15  In classical international law, strict division between the law of war and the law of peace; not so today  States have affirmed the parallel application of IHL and IHRL in numerous official statements, and not the least in the derogation clauses of HR treaties  How to describe the relationship?  Fragmentation of international law

16  ICJ, Nuclear Weapons, para. 25: In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

17  ICJ, Wall, para. 106: More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.  HRC, GenComm 31, the two ‘spheres of law are complementary, not mutually exclusive’

18  The complementarity thesis only an answer to the equally broad counter-claim that the two bodies of law are mutually exclusive  Interaction between norms and norm conflict ◦ Killing, detention  Norm conflict resolution ◦ Jus cogens ◦ Conflict clauses – derogation ◦ Art. 103 of the UN Charter  Norm conflict avoidance ◦ Consistent ◦ Creative ◦ Forced  Unresolvable norm conflict – Al-Saadoon

19  Art. 6(1) ICCPR Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.  Art. 2 ECHR Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a in defence of any person from unlawful violence; b in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c in action lawfully taken for the purpose of quelling a riot or insurrection.

20  Killing – Israeli SC Targeted Killing case  Preventive detention and judicial review of detention  Transformative occupation, Article 43 of the Hague Regulations and Article 64 GC IV

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