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Yet such cases are virtually absent from the Court's jurisprudence. The The Marshall Court (1801–1835) heard forty-one criminal law cases, slightly more than one per year. By developing public international law in the European Convention context, the Court would contribute to the positive project of developing public international law. Extraterritorial jurisdiction is the situation when a state extends its legal power beyond its territorial boundaries. v. Belgium et al.) It would transform the Court into an outward-looking entity deluged with petitions claiming extraterritorial jurisdiction at the expense of deepening human rights protections prevailing within signatory states like Turkey and Russia. By extending extraterritorial jurisdiction only to cases where a signatory state is essentially exercising functional sovereignty abroad, the Court strikes a balance between the twin, competing purposes of the Convention as a regional, European instrument and as a universalist charter for human rights. Extraterritorial State Action and International Treaty Law on Civil and Political Rights’, 26 See, e.g., Cerone, ‘Out of Bounds?
Any authority can claim ETJ over any external territory they wish. Kamminga (eds), Wilde subdivides this theory into cases of state control over ‘spatial objects’ – particular swaths of territory, whether a single prison or an entire country – or cases involving state control over persons. Excepting This approach also carries a powerful normative justification: it realizes the fundamental object of human rights treaties, the universal protection of human rights.
The Court's frequent rejoinders that the Convention is a regional instrument designed primarily to apply within Europe also reflect an opposing vision of the Convention, one which suggests that there is something unique about the Ultimately, the Court's extraterritorial jurisdiction cases seem most explicable on the ground that even exceptions to territorial jurisdiction require a strong nexus to state territory. Sarah Miller, Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention, European participation in controversial aspects of the ‘war on terror’ has transformed the question of the extraterritorial scope of the European Convention on Human Rights from abstract doctrine into a question with singularly pressing political and legal ramifications.
If jurisdiction is effectively limited to European territory, the Convention is a primarily regional instrument; if jurisdiction extends to a wide range of extraterritorial acts by signatories, the Convention is instead a global system for protecting human rights. X. Yet Alternatively, the Court's jurisprudence can be read to stand for an expansive but simple rationale for extraterritorial jurisdiction: ‘control entails responsibility’.This approach avoids the pitfalls of trying to set out a territorial rule with disparate and numerous exceptions while expressly accounting for much of the Court's prior case law.
Article 1 of the ECHR commands that ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’.European participation in the ‘war on terror’ has transformed the question of the Convention's extraterritorial scope from a doctrinal abstraction into an issue with profound and very real political and legal ramifications. A wider interpretation suggests that the principle can be violated in extreme cases of extraterritorial prescriptive jurisdiction. Scholars have favoured the latter, arguing that the universality of human rights demands an expansive concept of extraterritorial jurisdiction. If jurisdiction is to be expanded further abroad and signatory states are to avoid legal black holes, the answer may come not from the Court but from the political sphere, as signatory states are pressured voluntarily to assume that Convention obligations apply beyond where the law has drawn the line. (1) Extradition or expulsion cases: cases involving the extradition or expulsion of an individual from a member state's territory which give rise to concerns about possible mistreatment or death in the receiving country under Article 2 or 3 or, in extreme cases, the conditions of detention or trial under Article 5 or 6;(2) Extraterritorial effects cases: cases ‘where the acts of state authorities produced effects or were performed outside their own territory’;(3) Effective control cases: cases ‘when as a consequence of military action (lawful or unlawful) [a Contracting Party] exercised effective control of an area outside its national territory’; and(4) Consular or diplomatic cases, and flag jurisdiction cases: ‘cases involving the activities of [a Contracting Party’s] diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state’.Rather than clarifying the scope of and rationale for these exceptions, more recent cases appear to undermine [A] state may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State's authority and control through its agents operating – whether lawfully or unlawfully – in the latter State.‘Accountability in such situations’, the Court concluded, ‘stems from the fact that art 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory.’Furthermore, the most recent extraterritorial jurisdiction case, Though the Grand Chamber ultimately found that neither Öcalan's kidnapping nor his treatment on the aeroplane from Kenya to Turkey violated the Convention, the Court considered itself to have jurisdiction over these claims, even though they involved the acts of Turkish security officials abroad in a situation where Turkey clearly lacked effective control over any part of Kenyan territory.
The balance struck by the case law is flexible, extending jurisdiction beyond the default rule of pure territoriality but limiting it short of treating all extraterritorial acts as if they occurred within the For those hoping to extend the current scope of the Court's extraterritorial jurisdiction, this analysis suggests that the Court's case law offers few grounds for attempting to extend jurisdiction to a ‘control entails responsibility’ rule.