1. Case A
cf. ECtHR, 11 January 2005, Phull v. France (Appl. No /03, adm. dec.)
Article 9 ECHR?
... security checks in airports are undoubtedly necessary in the interests of public safety within the meaning of that provision. ... the arrangements for implementing them in the present case fell within the respondent State’s margin of appreciation, particularly as the measure was only resorted to occasionally. This part of the application is therefore manifestly ill-founded and must be rejected

2. Case B
cf. ECtHR, 12 January 2010, Gillan & Quinton v. UK (Appl. No. 4158/05)
Article 5 ECHR?
57. The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (...). In the event, however, the Court is not required finally to determine this question in the light of its findings below in connection with Article 8 of the Convention.

3. Case B
cf. ECtHR, 12 January 2010, Gillan & Quinton v. UK (Appl. No. 4158/05)
Article 8 ECHR?
very wide police powers (“Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets”)
statistical data (“there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real “)

4. Meanwhile...

5. ... Mr Geert Wilders Member of Parliament
“The Koran is a fascist book which, just like Mein Kampf, must be prohibited”
“I feel ashamed for all those in the government and in parliament who refuse to stop the Islamic invasion”
“No more Muslim immigrants, no more mosques”
“If Muslims want to stay here, they should tear out half of the Koran and throw it away”
Member of Parliament
Leader of ‘PVV’ (‘freedom party’) – ‘gedoger’ of coalition
critic of (extreme?) Islam
producer of The Film Fitna (March 2008)
several controversial statements

6. Prof. Rick Lawson Friday 19 August 2011
Advanced Course on the Int’l Prot. of HR – The territorial scope of the European Convention on Human Rights
Prof. Rick Lawson
Friday 19 August 2011

7. the “reach” of the ECHR
LIBYA

8. the “reach” of the ECHR

9. 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”.
not “to everyone within their territories”
not “to everyone”

10. Loizidou v. Turkey (1995)
“TRNC”
Turkey
UN buffer zone
Rep. of Cyprus

11. Loizidou
Complaint (Article 8 ECHR, Article 1 Prot. 1) – but addressed against whom?
Republic of Cyprus?
“TRNC”?
Turkey?
 defence: not within our “jurisdiction”

12. Loizidou – 2
“although 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. According to its established case-law, for example, the Court has held that the extradition or expulsion of a person by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention (see Soering [...]).

13. Loizidou – 3
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 be exercised directly, through its armed forces, or through a subordinate local administration.

14. (other ‘frozen conflicts’ in Europe)
Transnistria
see Ilascu v Moldova & Russia

15. “TRNC” continues to exist
Cyprus v. Turkey (2001)
“TRNC” continues to exist

16. Cyprus v. Turkey
“Having effective overall control over northern Cyprus, its [i.e., Turkey's] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey’s “jurisdiction” must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey”.

17. Cyprus v. Turkey – II
“Having regard to the applicant Government’s continuing inability to exercise their Convention obligations in northern Cyprus, any other finding would result in a regrettable vacuum in the system of human-rights protection in the territory in question by removing from individuals there the benefit of the Convention’s fundamental safeguards and their right to call a High Contracting Party to account for violation of their rights in proceedings before the Court”

18. …OK, but what about
situations where there is no “effective control” (chaos, continued hostilities...)
ad hoc operations
UN sanctioned military operations

20. Operation Allied Force (1999)
23 April 1999: RTS
16 individuals dead, 18 casualties

21. Bankovic (2001)
‘RTS survivors’ and relatives wish to bring a claim: right to life, freedom of expression
go to Strasbourg?
Articles 2, 10 ECHR
legal complications:
NATO action ( can you complain against IO? or against Member States?)
USA and Canada involved

22. Bankovic – II
Member States: the victims were never “within our jurisdiction”
developing a response
Loizidou & Cyprus v. Turkey: effective overall control  obligation to secure “entire range”
what if there is less control?

23. Stocké v. Germany (1989)
“According to Article 1 of the Convention the High Contracting Parties have to ensure the rights ... to "everyone within their jurisdiction". This undertaking is not limited to the national territory of the High Contracting Party concerned, but extends to all persons under its actual authority and responsibility, whether this authority is exercised on its own territory or abroad.

24. Stocké – II
[...] authorised agents of a State not only remain under its jurisdiction when abroad, but bring any other person "within the jurisdiction" of that State to the extent that they exercise authority over such persons. Insofar as the State's acts or omissions affect such persons, the responsibility of the State is engaged.

25. Developing a response... cases of Öcalan and Issa declared admissible
applicant arrested by Turkish forces in Kenya
son allegedly killed by Turkish forces in Iraq
complaints admissible, so apparently ECtHR competent to review the case  Turkey must be bound when operating in Kenya  probably bound to secure Mr Öcalan’s basic rights

26. Bankovic – III The response: full control (Loizidou): “entire range”
NGO variation
scope of obligations
under ECHR
arrest & return (Öcalan): basic rights
ratio: direct & immediate link between act and violation
hit & run (Issa): core rights
MS preference
degree of control

27. Bankovic – IV
75. the applicants suggest a specific application of the “effective control” criteria developed in the northern Cyprus cases. They claim that the positive obligation under Article 1 extends to securing the Convention rights in a manner proportionate to the level of control exercised in any given extra-territorial situation. The Governments contend that this amounts to a “cause-and-effect” notion of jurisdiction not contemplated by or appropriate to Article 1 of the Convention. The Court considers that the applicants’ submission is tantamount to arguing that anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that State for the purpose of Article 1 of the Convention.
The Court is inclined to agree with the Governments’ submission that the text of Article 1 does not accommodate such an approach to “jurisdiction”.

28. Bankovic – V
the Court is of the view that the wording of Article 1 does not provide any support for the applicants’ suggestion that the positive obligation in Article 1 to secure “the rights and freedoms defined in Section I of this Convention” can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question

29. Bankovic – VI
In short, the Convention is a multi-lateral treaty operating ... in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States.

30. Bankovic – VII The Court (?): arrest & return (Öcalan): all rights
scope of obligations
under ECHR
full control (Loizidou): “entire range”
hit & run (Issa): all rights
degree of control

31. Pres. Wildhaber, 2002
"Our perception of last year is coloured by the tragic events of 11 September and their aftermath. Terrorism raises two fundamental issues which human rights law must address. Firstly, it strikes directly at democracy and the rule of law, the two central pillars of the European Convention on Human Rights. It must be therefore be possible for democratic States governed by the rule of law to protect themselves effectively against terrorism; human rights law must be able to accommodate this need [cont’d]

32. Pres. Wildhaber, 2002
The European Convention should not be applied in such a way as to prevent States from taking reasonable and proportionate action to defend democracy and the rule of law” (...).
[On Bankovic:] "We do have to realise that the Convention was never intended to cure all the planet's ills and indeed cannot effectively do so; this brings us back to the effectiveness of the Convention and the rights protected therein. When applying the Convention we must not lose sight of the practical effect that can be given to those rights".

33. Öcalan v. Turkey (2003)
“In the instant case, the applicant was arrested by members of the Turkish security forces inside an aircraft in the international zone of Nairobi Airport. Directly after he had been handed over by the Kenyan officials to the Turkish officials the applicant was under effective Turkish authority and was therefore brought within the "jurisdiction" of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory.

34. Öcalan – II
The Court considers that the circumstances of the present case are distinguishable from those in the aforementioned Bankovic and Others case, notably in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and control following his arrest and return to Turkey (...).
(Note: Chamber judgment)

35. Issa v. Turkey (2004)
71.  ... 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 stems from the fact that Article 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.

36. Issa – II
However,
76.  The essential question to be examined in the instant case is whether at the relevant time Turkish troops conducted operations in the area where the killings took place. The fate of the applicants' complaints in respect of the killing of their relatives depends on the prior establishment of that premise. The Government have vigorously denied that their troops were active in or around Azadi village in the Spna area [...]

37. Issa – IV
77.  ... While the applicants were all unequivocal in their statements that the alleged acts were perpetrated by Turkish soldiers, they have not given any particulars as to the identity of the commander or of the regiment involved in the impugned acts. Nor have they given a detailed description of the soldiers' uniforms. It is to be noted in this connection that there is no independent eye-witness account of the presence of Turkish soldiers in the area in question or of the detention of the shepherds.

38. Isaak v. Turkey (2008) August 1996: demonstrations “TRNC”
UN buffer zone
Rep. of Cyprus

39. Isaak v. Turkey
Isaak beaten to death by Turkish Cypriot citizens and ‘TRNC’ officials (evidence: photos, video)
Turkey: no actual “jurisdiction” and/or control of northern Cyprus or of the UN-controlled buffer zone.
Court confirms case-law, including Issa (“... the fact that Article 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”)
Isaak = Issa + evidence

40. Isaak – II positive obligations!
UNFICYP members ... were unequivocal in their statements that Turkish-Cypriot policemen had actively taken part in the beating of Anastassios Isaak. This is also confirmed by ... video recording and photographs. In the latter, three “TRNC” policemen and a Turkish or Turkish-Cypriot military/police officer in camouflage uniform can be seen beating Anastassios Isaak with the civilian demonstrators. Moreover, it transpires from the case-file that despite the presence of the Turkish armed forces and other “TRNC” police officers in the area, nothing was done to prevent or stop the attack or to help the victim.
positive
obligations!

41. Isaak – III
In view of the above, even if the acts complained of took place in the neutral UN buffer zone, the Court considers that the deceased was under the authority and/or effective control of the respondent State through its agents (see Issa and Others, cited above). It concludes, accordingly, that the matters complained of in the present application fall within the “jurisdiction” of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State’s responsibility under the Convention.
24 June 2008: judgment
 violation of Article 2

42. ‘post-Isaak cases’ Solomos Solomou v Turkey (judgment 24 June 2008)
Andreou v Turkey
(admissibility decision 3 June 2008)
Rep. of Cyprus
UN buffer zone
“TRNC”
Ms Andreou
Turkish soldier

43. ‘post-Isaak cases’ Andreou v Turkey:
“when she was hit by the bullet, the applicant was standing outside the neutral UN buffer zone and in close vicinity to the Greek-Cypriot National Guard checkpoint. Unlike the applicants in Bankovic she was accordingly within territory covered by the Convention”.
Andreou v Turkey:
In these circumstances, even though the applicant sustained her injuries in territory over which Turkey exercised no control, the opening of fire on the crowd from close range, which was the direct and immediate cause of those injuries, was such that the applicant must be regarded as “within [the] jurisdiction” of Turkey within the meaning of Article 1 and that the responsibility of the respondent State under the Convention is in consequence engaged.
remember Bankovic? “the text of Article 1 does not accommodate such an approach to ‘jurisdiction’”

44. (some more puzzles...) Women on Waves v Portugal (3 Feb. 2009)
On 27 August 2004 the ship was banned from entering Portuguese territorial waters by a ministerial order, on the basis of maritime law and Portuguese health laws, and its entry was blocked by a Portuguese warship.
Women on Waves v Portugal (3 Feb. 2009)

45. (some more puzzles... 2) Medvedyev v France (GC, 20 March 2010)
the French authorities were informed that the Winner was likely to be carrying significant quantities of narcotics. ... the maritime authorities apprehended it on the high seas, then towed it to Brest harbour (France).
the applicants claimed to have been the victims of an arbitrary deprivation of liberty on account of being detained on board the Winner for 13 days under the surveillance of the French armed forces
under Article 5 § 3 (right to liberty and security), they complained that they had waited 15 to 16 days to be brought before a judge

46. Meanwhile... 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 recognised in the present Covenant [...]”

47. HRC General Comment No. 31 (2004)
10. States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party ...

48. HRC – II
This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.

49. ICJ, Advisory Opinion on ‘The Wall’ (2004)
109. The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions.
The constant practice of the Human Rights Committee is consistent with this. [...]

50. ‘The Wall’ – II
111. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.

51. ICJ, Georgia v. Russia (2008)
109. Whereas the Court observes that there is no restriction of a general nature in CERD relating to its territorial application; whereas it further notes that, in particular, neither Article 2 nor Article 5 of CERD, alleged violations of which are invoked by Georgia, contain a specific territorial limitation; and whereas the Court consequently finds that these provisions of CERD generally appear to apply, like other provisions of instruments of that nature, to the actions of a State party when it acts beyond its territory

52. latest news: Al Skeini (2011)
applicants: relatives of six Iraqi citizens who died in Basrah, Aug.-Nov. 2003
Five died ‘in the streets’
Mr Mousa taken to military base in Basra, beaten to death whilst in custody
claim: independent enquiry ( right to life, Article 2 ECHR)

53. Al Skeini – II
2004: Divisional Court distinguishes first five applicants (not “within jurisdiction”) from Mr Mousa (“within jurisdiction” because taken to British military base)
2005: Court of Appeal: same conclusion (but Mr Mousa considered to be “within jurisdiction” from the moment of his arrest by British forces)

54. Al Skeini – III 2007: House of Lords agree (4-1)
Lord Bingham: whatever reach of ECHR, Human Rights Act only applicable in UK
Lord Roger:
“The problem which the House has to face, quite squarely, is that the judgments and decisions of the European Court do not speak with one voice. ... the differences present considerable difficulties for national courts”

55. Al Skeini – IV Lord Brown:
“There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg”

56. Al Skeini – V ECHR, 7 July 2011, para. 131: territorial principle
137. It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare Banković, cited above, § 75).
ECHR, 7 July 2011, para. 131: territorial principle
exception 1: State agent authority and control
diplomatic & consular agents
exercise of public powers with consent of territorial State
use of force of agents operating on foreign soil (e.g. Öcalan, Issa): “what is decisive is the exercise of physical power and control over the person in question”.

57. Bankovic – V
the Court is of the view that the wording of Article 1 does not provide any support for the applicants’ suggestion that the positive obligation in Article 1 to secure “the rights and freedoms defined in Section I of this Convention” can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question

58. Al Skeini – VI Convention legal space (cf. Banko)
exception 2: effective control over an area
cf. Loizidou, Cyprus v Turkey
Convention legal space (cf. Banko)
no vacuum in “CoE territory” permissible
however, not to be used a contrario: ECHR may still apply outside the region (cf. Öcalan, Issa)

59. Al Skeini – VII
emphasis on the overall position of UK in Iraq: public powers
Application of these principles to the facts of the case ...
150. the Court recalls that the deaths at issue in the present case occurred during the relevant period [in 2003]. It is not disputed that the deaths ... were caused by the acts of British soldiers during the course of or contiguous to security operations carried out by British forces in various parts of Basrah City. It follows that in all these cases there was a jurisdictional link for the purposes of Article 1 of the Convention between the United Kingdom and the deceased.

60. Al Skeini – VII
emphasis on the overall position of UK in Iraq: public powers
Application of these principles to the facts of the case ...
150. the Court recalls that the deaths at issue in the present case occurred during the relevant period [in 2003]. It is not disputed that the deaths ... were caused by the acts of British soldiers during the course of or contiguous to security operations carried out by British forces in various parts of Basrah City. It follows that in all these cases there was a jurisdictional link for the purposes of Article 1 of the Convention between the United Kingdom and the deceased.
emphasis on direct link between conduct of State agents and alleged violation

61. My favourite judge Judge Giovanni Bonello Born 1936 in Malta
The founding members of the Convention, and each subsequent Contracting Party, strove to achieve one aim, at once infinitesimal and infinite: the supremacy of the rule of human rights law. In Article 1 they undertook to secure to everyone within their jurisdiction the rights and freedoms enshrined in the Convention. This was, and remains, the cornerstone of the Convention. That was, and remains, the agenda heralded in its preamble: “the universal and effective recognition and observance” of fundamental human rights.
Judge Giovanni Bonello
Born 1936 in Malta
Doctor of Law, 1958
Advocate in private practice
Judge ECHR since 1998