Jurisdiction of the European Court of Human Rights: exorbitance in reverse? Can, and should, an Iraqi victim of human rights abuses inflicted by U.K. troops have a remedy in U.K. courts under the European convention of human rights?

ISSUE: To what extent is the European Convention for the Protection of Human Rights and Fundamental Freedoms applicable to acts of a signatory outside its national boundaries, both within and outside the territory of Council of Europe member states? Is the debate on the limits of the espace juridique of the Convention legally still relevant to extraterritorial state actions? What are the practical implications for states of the current approach to extraterritorial jurisdiction of the Convention in the context of United Kingdom troops in Iraq and Afghanistan, as well as for European peacekeepers worldwide?

I. INTRODUCTION

Hazim, a twenty-three year old Iraqi citizen, was attending a funeral in his home town on August 4, 2003, when he was shot dead by a British soldier. Subsequently, his family received a letter of apology from the United Kingdom (U.K.) military forces, offering a small donation as compensation. In a similar incident, Raid, an Iraqi policeman taking a box of "suggestions and complaints" to a local judge, was shot dead by a British patrol. No letter of apology was offered to his family with regard to the tragic incident. (1)

There are many such stories, some recorded officially by the U.K. military stationed in Iraq and others recounted informally by foreign correspondents and human rights activists working in the war zones. The official stories are archived, while the unofficial stay in the minds of the families left behind to heal their wounds as best they can under the circumstances. However, are the circumstances such that they allow for no better alternative?

The family of Hazim Al-Skeini challenged the status quo and sought redress for the human rights abuses their son suffered under the U.K. military presence in their country. Their endeavor led to the first case ever brought by Iraqi citizens in a U.K. court against the U.K. government under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). (2) An appeal is currently pending in the U.K. court of last resort, the House of Lords.

This Note explores whether persons such as Hazim and Raid should have standing in European domestic courts and whether the Convention is applicable in such far-flung areas as Iraq and Afghanistan, which clearly do not fall within European boundaries, but where there is extensive European military or peacekeeping presence. Is the European Court of Human Rights (the Court) justified, on moral and/or procedural grounds, in extending jurisdiction of the Convention extraterritorially? How can a constructivist approach to interpretation of the Convention be reconciled with an activist argument for the moral need to uphold human rights in a manner appropriate for the 21st century?

Part II will examine the groundwork laid by the Court through case law on the interpretation of the Convention's jurisdiction, beginning with the Convention's jurisdiction within a nation's borders. The Court has interpreted strictly such territorial jurisdiction and has not allowed any signatory to be excused from upholding its obligations within its own territory, no matter the extent of the internal struggles for control. Second, the concept of "effective overall control" will be introduced, under which the Court has extended a state's responsibilities extraterritorially, but only within another signatory's territory over which the former exercises control. Third, the Note will review the concept of dual jurisdiction allowed by the Court, where both the signatory in effective overall control of the foreign territory and the signatory officially in control of such a territory are held jointly responsible under the Convention.

Under all of the above scenarios, the Court has faced no difficult dilemmas with regard to the Convention's jurisdiction, because at no time has it been confronted with the possibility of creating a vacuum of redress for human rights abuses. However, in a fourth group of cases, the Court has ventured into unknown territory and extended the Convention's jurisdiction extraterritorially beyond the espace juridique of the Convention's signatories, only to realize the sweeping consequences of its activism and curtail it by exacting the highest evidentiary burden for its applicability.

Consequently, the analysis of the current state of the case law illustrates the crossroads at which the Court has arrived, having extended the application of the Convention to territories outside of Europe, but allowing the extension in very few situations, none of which have yet presented themselves to the Court.

Part III will examine the methodology the Court has used in arriving at the correct interpretation of the jurisdiction of the Convention. It will be suggested that forcing a common law approach, complete with case law precedent and stare decisis, is an inapposite methodology to be applied to a civil law legal system. Instead, this Note will present an alternative approach, exploring the traveaux preparatoires of the Convention.

First, the legislative history of the Convention reveals a very narrow understanding of jurisdiction, limited to the post-World War II concerns of Europe in preserving the integrity and peace of its territory and the liberty of its citizens. Second, a particular debate on the so-called "colonial" clause, allowing for signatory reservations with regard to applicability of the Convention to overseas territories under colonial rule, will be considered in the context of the current situation in Iraq. Finally, this Note will argue that the Court cannot justify adopting an activist approach to pursue the admittedly noble cause of correcting a past democratic deficit. Instead, it will be suggested that the Court should leave it to the member state signatories, through the formal amendment process of the Convention, to define the jurisdiction of the Convention against the backdrop of the geopolitical realities of the 21st century.

II. SCOPE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

1. Defendants

Article 1 of the Convention provides that:

   The High Contracting Parties shall secure to
   everyone within their jurisdiction the rights
   and freedoms defined in Section 1 of [the]
   Convention. (3)

Accordingly, the signatories to the treaty are bound by the obligations laid out in the Convention. Such signatories are the state members of the Council of Europe. (4) Hence, the Convention's reach is limited to one type of legal personality (only states can be defendants in a case brought under the Convention), and to one geographical area, that covered by the Council of Europe.

2. Obligations

The text of Article 1 of the Convention specifies the obligation to respect human rights taken on by the signatories. It requires member states to answer for any infringement of the rights and freedoms protected by the Convention committed against individuals within their "jurisdiction" at the time of the violation. (5) The corollary is that establishing state jurisdiction is a necessary precondition to holding a contracting state responsible under the Convention. It is important to note the two notions of jurisdiction and their interconnection within Article 1. On one hand, Article 1 sets the jurisdiction of the Convention, specifying when the provisions of the Convention are binding on member state signatories to the Convention. On the other hand, the separate jurisdiction of member states is itself implicated. The former is a derivative of the latter. In other words, the Convention is applicable to acts or omissions imputable to member states only when such acts or omissions are committed under the jurisdiction of member states. (6) Hence, in order to set the parameters of the jurisdiction of the Convention, the notion of state jurisdiction must be defined.

It is widely recognized that the words of an international treaty must be interpreted in light of the rules set out in the Vienna Convention on the Law of Treaties (Vienna Convention). (7) Pursuant to Article 31 of the Vienna Convention, "within their jurisdiction" must be given the ordinary meaning of the words in their context and in the light of the object and purpose of the Convention. (8) Jurisdiction has a well-established "ordinary meaning" in public international law. In general, exercise of jurisdiction involves the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that state or brought within that state's control. (9) Hence, in the context of public international law, a state's jurisdictional competence is primarily territorial, because it is on its own territory that a state generally has greatest control and authority. (10)

While public international law does not negate a state's exercise of jurisdiction extraterritorially, the suggested bases of such jurisdiction are believed to be limited. In certain well-established cases, jurisdiction is assumed on the basis of non-territorial factors such as: (i) acts of public authority performed abroad by diplomatic and consular representatives of the state (diplomatic and consular relations jurisdiction); (ii) the criminal activities of individuals overseas against the interest of the state or its nationals (passive personality jurisdiction); (iii) acts performed on board of vessels flying the state flag or on aircraft or spacecraft registered there (flag jurisdiction); and (iv) particularly serious international crimes (universal jurisdiction). (11) In addition to such established bases for extraterritorial jurisdiction of states, the Court has recently held states responsible for actions "within their control or power" that occurred outside of their territory under extraordinary circumstances and narrowly defined sets of specific facts. (12)

III. JURISDICTIONAL LIMITS OF STATE RESPONSIBILITY UNDER THE CONVENTION: CASE LAW

1. Territorial Jurisdiction

An April 2004 case establishes the background for a discussion of Article 1 of the Convention. In Assanidze v. Georgia the Court found that Georgia exercised jurisdiction over the Ajarian Autonomous Republic (AAR). (13) The AAR is a part of Georgia, and according to the Court Georgia's state acts or omissions in the AAR were subject to examination under the Convention.

The Court defined jurisdiction primarily as a territorial concept. (14) The Court held that Georgia continued to exercise jurisdiction over the AAR despite Georgian claims that because it did not exercise "effective overall control" in the region it should be relieved from obligations under the Convention with regard to the AAR. Following are several of the factors that the Court quoted as the basis for its decision:

(a) The AAR had no separatist aspirations and hence did not constitute a separatist region. (15)

(b) The AAR was indisputably an integral part of Georgia. (16)

(c) No other state exercised "effective overall control" over the AAR, (17) and the AAR itself was not a state as defined under Article 1 of the Montevideo Convention on the Rights and Duties of States (the Montevideo Convention). (18)

(d) Georgia had made no specific reservations under Article 57 of the Convention upon ratification with regard to the AAR or with regard to difficulties in exercising its jurisdiction over that territory. (19)

Assanidze stands for the notion that jurisdiction of the Convention is derivative of the primarily territorial concept of state jurisdiction. A state signatory cannot circumvent its obligations under the Convention with regard to areas within its territory where it has difficulties in exercising control. Instead, responsibilities under the Convention remain with the state irrespective of the level of domestic government to which the breach of the Convention is attributed. (20) Because the state is strictly liable under the Convention for the conduct of its subordinates, it is under a duty to impose its will and cannot hide behind its inability to ensure respect.

2. Two European State Signatories

This next category of cases involves two European states which are both signatories to the Convention and are in some way implicated in human rights abuses in a territory which is under disputed control by both parties.

(a) Loizidou v. Turkey

In Loizidou v. Turkey, decided in 2001, the Court found that Turkey exercised "effective overall control" over the Turkish Republic of Northern Cyprus (TRNC), a part of Cyprus. (21) The finding of such control established Turkey's extraterritorial jurisdiction over the TRNC. Consequently, the Court held Turkey responsible under the Convention for any violation of the protected rights and freedoms of anyone within its extraterritorial jurisdiction. …