The Applicability of the Echr in Contested Territories (original) (raw)
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This Article addresses different perspectives on the extra-territorial applicability of the European Convention on Human Rights (ECHR). Section 2 focuses on the different interpretations of the concept of State jurisdiction attempted by the Strasbourg Court and academics. Through the guidance of article 31 of the Vienna Convention on the Law of Treaties, a legal interpretation of the term ‘jurisdiction’ is suggested. A conception of ‘jurisdiction’ disconnected from territorial boundaries and focused on the relationship of power between the State and the individual seems required by the meaning of the term ‘jurisdiction’ in the context of human rights law, its coherence with the object and purpose of the ECHR, and its belonging to international human rights law. Section 3 questions some of the current philosophical understandings and groundings of human rights. Departing from the idea that the groundings of current theories justifying the extra-territorial applicability/non-applicability of the ECHR are not completely justified from a philosophical perspective, the present Article tries to propose different foundations. Through the works of Arendt and Levinas and critiques to cosmopolitanism, this Article suggests different foundations for the extra-territorial application of the ECHR, in harmony with and in support of the legal interpretation proposed in Section 2. Section 4 addresses some of the practical complications deriving from the extra-territorial application of the ECHR, such as the relationship between human rights and international humanitarian law, the relationship between human rights and Occupation Law, and the risk of human rights imperialism. In conclusion, an overall appraisal of the issues covered in this Article warrants a process of extra-territorial application of the ECHR based on an actual recognition of the human rights of the Other.
2004
While the last few years have seen a strong attention by international lawyers towards alleged breaches of Article 2(4) of the UN Charter, much less attention has been devoted to the effects produced by such interventions upon the victim state. Article 2(4)'s main function is arguably to protect the 'territorial integrity or political independence' of states, and the aims and effects of military interventions often undermine states' territorial sovereignty well after the cessation of the hostilities. The thesis sheds light on the extent to which international law protects states' and peoples' territorial sovereignty by studying the phenomenon of unlawful territorial situations. An unlawful territorial situation can be defined as a territorial occupation established and maintained as a result of a violation of international law, such as in the case of the illegal use of force. The thesis analyses unlawful territorial situations through the lenses of the legal-...
Groningen Journal of European Law
The EU could currently be described as one of the largest international legal entities with, previously unprecedented, legal competences originating from public international law (PIL). Both the European and international legal landscapes have changed and evolved in terms of nature, as well as their national and international competences in relation to each other. The relationship between these two legal systems has therefore also received increasing attention in recent years, most likely due to their unique interaction. In terms of the EU’s global influence, it undoubtedly played a role in reshaping the idea of international organizations, but were they influential towards each other in other ways? The aim of the present article is to assess to what extent and how the Court of Justice of the European Union’s (CJEU) takes international law into account when ruling on questions regarding international agreements with third countries concerning disputed territories.
Globalization and Jurisdiction: Lessons from the European Convention on Human Rights
Baltic Yearbook of International Law Online, 2006
La Cellule de recherche interdisciplinaire en droits de l'homme (CRIDHO) a été constituée au sein du Centre de philosophie du droit, Institut extra-facultaire de l'Université catholique de Louvain, par des chercheurs soucieux de réfléchir le développement contemporain des droits fondamentaux à l'aide d'outils d'autres disciplines, notamment l'économie et la philosophie politique. La CRIDHO travaille sur les rapports entre les mécanismes de marché et les droits fondamentaux, aussi bien au niveau des rapports interindividuels qu'au niveau des rapports noués entre Etats dans le cadre européen ou international. CRIDHO Working Papers Tous droits réservés. Aucune partie de ce document ne peut être publiée, sous quelque forme que ce soit, sans le consentement de l'auteur.
The EU Charter of Fundamental Rights, 2014
A. Introduction Much commentary on the Charter of Fundamental Rights (EUCFR) 1 has focused on its potential impact on the internal division of competences between the EU and its Member States. 2 This chapter is concerned not so much with that internal division, but rather with an issue on which the Charter is apparently silent, namely, its effects on external and extraterritorial action by the EU or its Member States. 3 Article 51(1) makes clear that the 'provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.' Accordingly, if EU institutions, bodies, offices and agencies act outside the geographical confines of the EU, the fact of extraterritoriality would seem to be immaterial to the question of the Charter's applicability. The same holds for the Member States, provided they are deemed to be 'implementing' EU law. The Charter's silence on matters of jurisdiction, in particular territorial conceptions of jurisdiction, appears to reflect an assumption that EU fundamental rights obligations simply track all EU activities, as well as Member State action when implementing EU law. This follows from the fact that EU human rights obligations are applicable in all areas governed by EU law or, as the Court puts it, '[t] he applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.' 4 The only threshold requirement, therefore, is whether EU law applies to the particular circumstances. The initial purpose of this contribution was to argue against the incorporation of any territorial conception of human rights jurisdiction in the Charter. Given the lack of any 'jurisdictional clause' in the Charter, akin to Article 1 of the European Convention of Human Rights (ECHR), 5 that argument should easily be made out. However, this chapter has a further, more constructive purpose, namely to elucidate why EU human rights law requires no such threshold jurisdictional criterion, unlike some international 1 Charter of Fundamental Rights of the European Union, [2010] OJ C83/389.
2017
The present research looks into the inter-state and quasi-inter-state cases examined by the European Court of Human Rights (“the Court”) linking them with the context of Ukrainian conflict in Crimea and its Eastern part. It puts emphasis on the challenges that the Court has met in its previous cases, from the perspective of the States in dispute, and wonders on the outcomes of the Ukrainian inter-State and quasi-inter-State pending litigations. The paper observes briefly the executional perspectives and, finally, proposes some short-term scenarios of how these litigations may evolve. It starts by a general introduction into the contexts and developments of inter-state and quasi-interstate adjudication under the European Convention on Human Rights (“the Convention”), underlining in particular aspects relevant for the pending Ukrainian disputes. Then it outlines the general question of extraterritorial States’ jurisdiction and the Court’s specific interpretation from the Convention Human Rights Law perspective, in comparison to general meaning as given by other international adjudication bodies. All relevant elements from both summaries are supported by the Court’s case-law leading cases. Turning to the Ukrainian conflict situation, the paper surveys landmark Convention cases concerning the so-called “frozen conflicts”, reflecting rather the Court’s reasons between the lines and behind its official rulings; what tactic the Court usually employs dealing with the inter-States disputes and how these cases have been evolved so far under the Convention mechanism, including their execution stage. The paper will list similar zones with “on-going” and/or “frozen conflicts” that already gave raise to systemic problems and massive violations leading to multiple cases being brought before the Court (such as the Transnistrian region of the Republic of Moldova; the Nagorno-Karabakh region of Azerbaijan and its conflicting jurisdiction with Armenia; the Northern Cyprus region and the extensive jurisdiction of Turkey, as well as Abkhazia and South Ossetia, conflictual zones of Georgia). The author assesses how the autonomous interpretation of the jurisdiction under the Court’s case-law has been applied to all these cases and, therefore, what are the effects in terms of the state’s positive or negative obligations under the Convention in these zones. Then, the paper will illustrate types of cases and applications coming from conflictual zones, in particular inter-State cases and individual applications, which may become quasi-inter-States disputes. In the end, the present paper dares to make some assumptions concerning a potential development of the Ukrainian human rights complaints brought before the Court (be that inter-State or quasi-inter-State cases). It will be mainly a hypothetical exercise and speculative scenario, which however will be construed on the above research and overview of the previous cases. It will refer solely to the on-going international disputes over the Crimea region and military conflicts in the Eastern regions of Ukraine, from jurisdictional perspective of both States in dispute. However, no valuable predictions will be possible concerning the merits of the Ukrainian cases and the executional reaction, though some general ideas and examples will be mentioned.
Pushing the Limits of the ECHR System: Village Destructions in Turkey
As with the other speakers this morning, I will attempt to assess Kevin Boyle's contribution in just one area of his work, and will most likely struggle to do so in such a short period of time. I will examine how Kevin pushed the limits of the ECHR system, through a general analysis of the Turkish 'village destructions' cases -though I will avoid going into specifics of individual cases. Through this I hope to demonstrate Kevin's contribution to people, to networks, the ECHR system and to International Human Rights Law in general.