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Title to Territory and Jurisdiction in International Human Rights Law: Three Models for a Fraught Relationship

Published online by Cambridge University Press:  14 February 2018

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Abstract

It is by now uncontroversial that states may owe human rights obligations to individuals outside their territory. The debate about extraterritoriality has, so far, focused on the concept and interpretation of jurisdiction. The role of territory in general, and title in particular, in the conceptual landscape has received less attention in comparison. This article aims to fill this gap by showing that (a) title to territory continues to shape interpretations of jurisdiction, and (b) that this should be avoided. To this end, the article first defines jurisdiction in international human rights law and title to territory. Jurisdiction is best understood as a threshold criterion that triggers human rights obligations of states towards particular individuals. Title to territory, on the other hand, is a set of claims to territory designed to uphold minimal stability. The article then introduces three models – the approximation model, the differentiation model, and the separation model – of the relationship between title to territory and jurisdiction in international human rights law and evaluates them in light of their fit with the relational nature of human rights. The result is that the approximation and differentiation models – that is, those that maintain title's influence on the interpretation of jurisdiction in various degrees – fail the success criterion, while the separation model satisfies it.

Keywords

Al-Skeini v. UKCatan v. UKEuropean Convention on Human Rightsextraterritorialityhuman rights
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 31 , Issue 2 , June 2018 , pp. 315 - 334
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2018 

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References

1 See, e.g., M. Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of Human Rights Treaties (2009); Milanovic, M., Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (2011)CrossRefGoogle Scholar; Da Costa, K., The Extraterritorial Application of Selected Human Rights Treaties (2012)CrossRefGoogle Scholar.

2 This definition is derived from, but not identical to, the one given in Milanovic, supra note 1, at 8, where it reads ‘[e]xtraterritorial application simply means that at the time of the alleged violation of his or her human rights the individual concerned is not physically located in the territory of the state party in question, a geographical area over which it has sovereignty or title’. The change is to emphasize that it is important to know what the obligations are before we speak of violations. On this point see L. Raible, ‘The Extraterritoriality of the ECHR: Why Jaloud and Pisari should be Read as Game Changers’ [2016] European Human Rights Law Review 161, at 165–6.

3 Military operations and armed conflict abroad are a prominent context for the extraterritorial application of, at least, civil and political rights. See, e.g., Banković v. Belgium, Decision of 12 December 2001, [2001] ECHR (Appl. No. 52207/99); Issa v. Turkey, Judgment of 16 November 2004, [2004] ECHR 629; Hassan v. UK, Judgment of 16 September 2014, [2014] ECHR (Appl. No. 29750/09); Al-Skeini v. UK, Judgment of 7 July 2008 (Appl. No. 55721/07).

4 The European Court of Human Rights currently operates on this assumption: Al-Skeini v. UK, supra note 3, para. 132.

5 S. Wallace and C. Mallory, ‘Applying the European Convention on Human Rights to the Conflict in Ukraine’, (2016) University of Cambridge Faculty of Law Research Paper 48/2016, available at ssrn.com/abstract=2845407, is an exception. However, it is less concerned with the principle of the matter and more with the application of the incoherent case law to the situation in Eastern Ukraine.

6 Emphasis added.

7 HRC, General Comment 31: Nature of the General Legal Obligations on States Parties of the Covenant, UN Doc. CCPR/C/21/Rev./Add.13 (26 May 2004), paras. 10–11. For an analysis of the drafting history of the provision see Gondek, supra note 1, at 92–105.

8 On the implications for extraterritoriality see ibid., at 316–-28; Gibney, M. and Skogly, S., ‘Transnational human rights obligations’, (2010) 24 Human Rights Quarterly 781Google Scholar, at 790–1; De Schutter, O. et al., ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social, and Cultural Rights’, (2012) 34 Human Rights Quarterly 1084CrossRefGoogle Scholar; Salomon, M.E., ‘Deprivation, Causation and the Law of International Cooperation’, in Langford, M. et al. (eds.), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (2013)Google Scholar. More generally see Craven, M., The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995)Google Scholar, at 144–50; Sepúlveda, M., The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (2003)Google Scholar, at 370–7.

9 Legal Consequences of the Construction of a Wall, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, para. 112.

10 Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights (1976) Vol. 3, at 200.

11 See further the analysis in Gondek, supra note 1, at 84–92.

12 In fact, I think that the interpretation of ‘and’ as ‘or’ is perfectly plausible, and at least not less so than the suggestion that jurisdiction and territory are different criteria to be met cumulatively. For arguments on the details of which interpretation is preferable see, e.g., Lopez Burgos v. Uruguay, Communication No 52/1979, Views of 29 July 1981, UN Doc. CCPR/C/13/D/52/1979 (Christian Tomuschat, Separate Opinion); Gondek, supra note 1, at 92–108; Milanovic, supra note 1, at 222–7; Den Heijer, M. and Lawson, R., ‘Extraterritorial Human Rights and the Concept of “Jurisdiction”’, in Langford, M. et al. (eds.), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (2013)Google Scholar, at 161–2.

13 See, e.g., Banković v. Belgium, supra note 3, para. 59; Tzevelekos, V.P., ‘Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility’, (2014) 36 Michigan Journal of International Law 129, at 129–30Google Scholar; Gondek, M., ‘Extraterritorial Application of The European Convention on Human Rights: Territorial Focus in the Age of Globalization?’, (2005) 52 Netherlands International Law Review 349, at 360CrossRefGoogle Scholar.

14 Banković v. Belgium, supra note 3, para. 67; Tzevelekos, supra note 13, at 142–3; Gondek, supra note 13, at 359, 370.

15 On this point and jurisdiction in international law generally see, e.g., O'Keefe, R., ‘Universal Jurisdiction: Clarifying the Basic Concept’, (2004) 2 Journal of International Criminal Justice 735CrossRefGoogle Scholar; Mills, A., ‘Rethinking Jurisdiction in International Law’, (2014) 84 British Yearbook of International Law 187CrossRefGoogle Scholar; C. Ryngaert, Jurisdiction in International Law (2015).

16 See, e.g., Lopez Burgos v. Uruguay, supra note 12, paras. 12.2 and 12.3; Besson, S., ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’, (2012) 25 LJIL 857CrossRefGoogle Scholar.

17 Most works dealing with jurisdiction in international law in general terms omit it entirely. See Mills, supra note 15, at 194 (fn 22); Ryngaert, supra note 15, at 20.

18 On title to territory in international law see generally Shaw, M.N. (ed.), Title to Territory (2005)Google Scholar; Crawford, J., The Creation of States in International Law (2006)Google Scholar; Shaw, M.N., International Law (2014), 352–85Google Scholar.

19 Others have done so much more stringently and persuasively than I could. See, e.g., Miller, D., ‘Territorial Rights: Concept and Justification’, (2012) 60 Political Studies 252CrossRefGoogle Scholar; Tesón, F.R., ‘The Mystery of Territory’, (2015) 32 Social Philosophy and Policy 25–50CrossRefGoogle Scholar; L. Lo Coco, ‘The Grounds of Territory’ (PhD Thesis, King's College London, 2016).

20 There are about as many interpretations of the precise criteria of jurisdiction in this regard as there are judicial bodies and authors. See, e.g., the different takes in De Schutter, O., ‘Globalization and Jurisdiction: Lessons from the European Convention on Human Rights’, (2006) 6 Baltic Yearbook of International Law 183Google Scholar; King, H., ‘The Extraterritorial Human Rights Obligations of States’, (2009) 9 Human Rights Law Review 521CrossRefGoogle Scholar; Miller, S., ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’, (2010) 20 European Journal of International Law 1223CrossRefGoogle Scholar; Milanovic, supra note 1; Besson, supra note 16; De Schutter et al., supra note 8.

21 For an outline of potential interpretations and the confusion they have sown in international human rights law see Milanovic, supra note 1, at 19–41.

22 Ryngaert, supra note 15, at 9–10.

23 See, e.g., Staker, C., ‘Jurisdiction’, in Evans, M.D. (ed.), International Law (2014)Google Scholar, at 309–10; Crawford, J., Brownlie's Principles of Public International Law (2012)CrossRefGoogle Scholar, at 204–6, 456–7; Ryngaert, supra note 15.

24 Mills, supra note 15. For the same distinction, but not as general, see Milanovic, supra note 1, at 53, 118; see also Gondek, supra note 13, at 369–70.

25 Mills, supra note 15, at 209–30.

26 O'Boyle, M., ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life after Bankovic"’, in Coomans, F. and Kamminga, M.T. (eds.), Extraterritorial Application of Human Rights Treaties (2004) 125Google Scholar; Milanovic, supra note 1, at 19; Besson, supra note 16, at 862.

27 Besson, supra note 16, at 862–3.

28 Mills, supra note 15, at 194 (fn 22) (emphasis in original).

29 This phrasing is misleading because it suggests that a state is exercising a right or power when this need not necessarily be true. In my view, jurisdiction in international human rights law does not depend on whether it is exercised: Raible, supra note 2, at 165–6.

30 Contra Banković v. Belgium, supra note 3, para. 59. See Milanovic, supra note 1, at 39–41.

31 On the relevance of this point see Raible, supra note 2, at 166.

32 It could, and probably should, be argued that jurisdiction is thus an unfortunate choice of term for the purposes of human rights law. However, it seems it is what we are left with for now.

33 This is a simplified account in order to keep distractions from the purpose of this article to a minimum. For more on territory in international law, see Shaw, Title to Territory, supra note 18; Crawford, supra note 18; Crawford, supra note 23, at 203–52; Shaw, International Law, supra note 18, at 352–400.

34 See Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, 165 LNTS 19.

35 See Crawford, supra note 18, at 46–52; Tesón, supra note 19, at 28. The opposite, however, is not true. International law recognizes categories of territories that do not form part of a state in this sense. See generally Crawford, supra note 23, at 203.

36 Crawford, supra note 18, at 52.

37 Crawford, supra note 23, at 216, but see the note of caution at 204; Tesón, supra note 19, at 28.

38 Western Sahara, Advisory Opinion of 16 October 1975, [1975] ICJ Rep. 12, paras. 79–80.

39 Island of Palmas Case (Netherlands v. US) (1928) RIAA 829. Note that this is precisely not the prevailing meaning of jurisdiction in international human rights law.

40 Shaw, International Law, supra note 18, at 363–72; Tesón, supra note 19, at 28.

41 Crawford, supra note 23, at 212.

42 Ibid., at 216–17.

43 Shaw, International Law, supra note 18, at 354.

44 Tesón, supra note 19, at 29.

45 Shaw, Title to Territory, supra note 18, at xxiii–xxiv; Tesón, supra note 19, at 29.

46 See further Zacher, M.W., ‘The Territorial Integrity Norm: International Boundaries and the Use of Force’, (2001) 55 International Organization 215CrossRefGoogle Scholar. On the acquisition of territory by newly creating/ed states see generally Crawford, supra note 18; Shaw, International Law, supra note 18, at 355–8.

47 Brilmayer, L., ‘Secession and Self-determination: A Territorial Interpretation’, (1991) 16 Yale Journal of International Law 177Google Scholar.

48 Also known as the Pact of Paris. Formally: 1928 General Treaty for Renunciation of War as an Instrument of National Policy, 94 LNTS 57.

49 See Crawford, supra note 23, at 216.

50 To my mind, it is in light of this no coincidence that Crawford treats effectiveness as the decisive feature of statehood as such: Crawford, supra note 18, at 37–95.

51 Tesón, supra note 19, at 28–9.

52 As a consequence, many philosophical justifications of territorial rights are in opposition to international law. See, e.g., ibid., at 30–1; Lo Coco, supra note 19.

53 See Section 2.1 supra.

54 Although, and this is the heart of Mills’ argument, there are areas where it should now be acknowledged that the exercise of jurisdiction in this sense may not only be a right, but also a duty. See Mills, supra note 15, at 209–30.

55 See, e.g., Benvenisti, E., ‘The Applicability of Human Rights Conventions to Israel and to the Occupied Territories’, (1992) 26 Israel Law Review 24CrossRefGoogle Scholar; Ben-Naftali, O. and Shany, Y., ‘Living in Denial: The Application of Human Rights in the Occupied Territories’, (2004) 37 Israel Law Review 17CrossRefGoogle Scholar; Wilde, R., ‘Legal Black Hole – Extraterritorial State Action and International Treaty Law on Civil and Political Rights’, (2004) 26 Michigan Journal of International Law 739Google Scholar; Gondek, supra note 1, at 368; Milanovic, supra note 1, at 58–61. For an opposing view regarding times of armed conflict and occupation see Dennis, M. J., ‘Application of Human Rights Treaties Extraterritoriality in Times of Armed Conflict and Military Occupation’, (2005) 99 American Journal of International Law 119.CrossRefGoogle Scholar

56 Section 2.1 supra.

57 It would be perfectly possible to investigate the opposite perspective where one would ask how much the concept of title to territory in international law can or should be influenced by jurisdiction in international human rights law. However, this is not the point of this article.

58 Besson, supra note, at 876–7 (emphasis added).

59 Ibid., at 876.

60 See generally, Hohfeld, W.N., ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’, (1913) 23 Yale Law Journal 16CrossRefGoogle Scholar. See further Wenar, L., ‘The Nature of Rights’, (2005) 33 Philosophy & Public Affairs 223CrossRefGoogle Scholar; Wenar, L., ‘The Nature of Claim-Rights’, (2013) 123 Ethics 202.CrossRefGoogle Scholar

61 On the importance of the identification of the duty-bearer in general see, e.g., Besson, S., ‘The Bearers of Human Rights’ Duties and Responsibilities for Human Rights: A Quiet (R)Evolution?’, (2015) 32 Social Philosophy and Policy 244.CrossRefGoogle Scholar

62 I have argued elsewhere that jurisdiction is best understood as political power. See Raible, supra note 2, at 166–8. However, the purpose of jurisdiction remains the same regardless of which particular interpretation one prefers, and it is this purpose that is decisive.

63 Milanovic explicitly endorses this view. But he does not do so in the same place where he is interpreting the meaning of jurisdiction. See Milanovic, supra note 1, at 107, 109.

64 Implicitly: ibid., Ch. 4. Explicitly: Milanovic, M., ‘Human Rights Treaties and Foreign Surveillance: Privacy in a Digital Age’, (2015) 56 Harvard International Law Journal 81Google Scholar, at 111. For more on the least-cost-principle and how it allocates duties see Wenar, L., ‘Responsibility and Severe Poverty’, in Pogge, T. (ed.), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (2007), 255Google Scholar.

65 Milanovic has been criticized – again implicitly – for not following through on the capacity plus least-cost-principle. See Shany, Y., ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law’, (2013) 7 Law & Ethics of Human Rights 47CrossRefGoogle Scholar, at 61–4.

66 See generally Besson, S., ‘Human Rights and Democracy in a Global Context: Decoupling and Recoupling’, (2011) 4 Ethics & Global Politics 19CrossRefGoogle Scholar.

67 Besson, supra note 16, at 862–6.

68 (In)famously coined in Banković v. Belgium, supra note 3, para. 59. See also Legal Consequences of the Construction of a Wall, supra note 9, para. 109. See further Wilde, R., ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’, (2007) 40 Israel Law Review 503CrossRefGoogle Scholar; Miller, supra note 20; Tzevelekos, supra note 13.

69 See generally Tzevelekos, supra note 13.

70 Banković v. Belgium, supra note 3, para. 59.

71 See Section 2.1 supra.

72 Banković v. Belgium, supra note 3.

73 Al-Skeini v. UK, supra note 3, paras. 138–40.

74 Banković v. Belgium, supra note 3, para. 75.

75 This spatial model is just one of the concepts the Court currently operates with. The other one is the personal model, where authority over individuals is decisive. However, I have argued elsewhere that these were never meaningfully separate and that the Court has recently (hopefully) confirmed this, albeit implicitly. See Raible, supra note 2, at 164–5.

76 Milanovic, supra note 1, at 209–22.

77 Ibid., at 170–2.

78 For a summary of his view see Tzevelekos, supra note 13, at 133–4.

79 Shany, supra note 65, at 60.

80 A notable exception is Besson, who aligns herself with the separation model (see Section 6 infra) but nevertheless argues for jurisdiction to contain an element of effective control (among other elements). See Besson, supra note 16, at 872.

81 This is in addition to the ubiquitous conflation of jurisdiction and state responsibility. See further Milanovic, supra note 1, at 41–52. For an opposite view see Rooney, J.M., ‘The Relationship between Jurisdiction and Attribution after Jaloud v. Netherlands’, (2015) 62 Netherlands International Law Review 407CrossRefGoogle Scholar.

82 Banković v. Belgium, supra note 3, para. 59; Gondek, supra note 13, at 360; Tzevelekos, supra note 13, at 129–30.

83 See Section 2.2 supra.

84 Crawford, supra note 23, at 204; Shaw, International Law, supra note 18, at 352–4. See also Bhuta, N., ‘The Frontiers of Extraterriotriality: Human Rights Law as Global Law’, in Bhuta, N. (ed.), The Frontiers of Human Rights (2016), 1Google Scholar.

85 Crawford, supra note 23, at 225–6; Shaw, International Law, supra note 18, at 363–72.

86 Banković v. Belgium, supra note 3, at 59.

87 Shaw, International Law, supra note 18, at 354–5.

88 But see Bhuta, supra note 84, who argues that human rights actually rely on a statist system and states’ legal systems.

89 See Section 2.1 supra.

90 For an argument to that effect see Mujezinović Larsen, K., ‘“Territorial Non-Application” of the European Convention on Human Rights’, (2009) 78 Nordic Journal of International Law 73CrossRefGoogle Scholar.

91 Ilaşcu v. Moldova and Russia, Judgment of 8 July 2004, [2004] ECHR (Rep. 2004-VII).

92 Catan v. Moldova and Russia, Judgment of 19 October 2012, [2012] ECHR (Appl. No. 43370/04).

93 Ilaşcu v. Moldova and Russia, supra note 91, paras. 2, 322–30.

94 Ibid., paras. 386–94.

95 Ibid., para. 2; Catan v. Moldova and Russia, supra note 92, para. 3.

96 Ilaşcu v. Moldova and Russia, supra note 91, paras. 386–94.

97 Section 4 supra.

98 Ilaşcu v. Moldova and Russia, supra note 91, at 33–335.

99 Ibid., paras. 330–1.

100 For a summary on recognition of governments see Shaw, International Law, supra note 18, at 328–32.

101 Catan v. Moldova and Russia, supra note 92, para. 110 (citing Ilaşcu v. Moldova and Russia, supra note 91).

102 On recognition of states see Crawford, supra note 18, Ch. 1; Vidmar, J., ‘Explaining the Legal Effects of Recognition’, (2012) 61 International and Comparative Law Quarterly 361CrossRefGoogle Scholar; Shaw, International Law, supra note 18, at 321–8.

103 See also Mujezinović Larsen, supra note 90.

104 See ibid., at 76–8, where he conflates jurisdiction as a right and jurisdiction as an issue of duty, while arguing overall, for what I would call the differentiation model. Cf. Milanovic, supra note 1, at 118.

105 On the differing purposes of the two legal concepts see Section 2 supra.

106 This is what I hope to be a faithful extension of the view in Besson, supra note 16, at 860.

107 Similar, but for different reasons: Milanovic, supra note 1, at 118.

108 See Section 2.1 supra.

109 As mentioned above, this is not the only way it can or has been interpreted. But the ECtHR continues to hold that it is relevant: Al-Skeini v. UK, supra note 3, paras. 130–9.

110 Examples include Loizidou v. Turkey, Judgment (Preliminary Objections) of 23 March 1995, [1995] ECHR (Appl. No. 15318/89), at 60–4; Al-Skeini v. UK, supra note 3, paras. 130–9.

111 In addition to the examples above see the following cases of the ECtHR: Issa v. Turkey, supra note 3, para. 71; Hassan v. UK, supra note 3, paras. 74–80; Jaloud v. Netherlands, Judgment of 20 November 2014, [2014] ECHR (Appl. No. 47708/08), paras. 139–53; Pisari v. Moldova, Judgment of 19 October 2015, [2015] ECHR (Appl. No. 42139/12), para. 33.

112 Lopez Burgos v. Uruguay, supra note 12, paras. 12.2 and 12.3.

113 Section 1 supra.

114 Al-Skeini v. UK, supra note 3, paras. 133–7.

115 Ibid., at 130.

116 Raible, supra note 2.

117 Raible, L., ‘Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status, Extraterritoriality and the Search for Principled Reasoning’, (2017) 80 Modern Law Review 510CrossRefGoogle Scholar, at 520–4.

118 Besson, supra note 16, at 863.

119 This interpretation is also faithful, I believe, to her work on the nature of human rights more generally. See, e.g., Besson, supra note 66.

120 Besson, supra note 16, at 863.

121 Ibid., at 866.