­c hapter 1

State Jurisdiction and the Scope of the echr’s

Protection (Article 1 echr)

Margarite Helena Zoeteweij-​Turhan*

1 Introduction

In advance of the following chapters, which analyse the substantive rights

and freedoms as recognised by the European Convention on Human Rights
(echr), this chapter invites the reader to momentarily dwell on the notions
of jurisdiction and (extra-​)territoriality as applicable under the echr, as well
as the substantive and personal scope of the responsibility of the signatory
states as per Article 1 echr. Article 1 sets off by imposing a positive and univer-
sal1 obligation on the Contracting Parties to ‘secure’ the enjoyment of and the
access to rights and freedoms as defined in Section i of the echr to all, to con-
sequently limit this obligation with the jurisdiction of the same Contracting
Parties. In this sense, the notion of jurisdiction is pivotal to understanding who
the right-​holders and the duty-​bearers of echr rights are.2 Therefore, in order
to fully grasp the extent of the obligation of the States Parties as explored in
detail in the next chapters, it is vital to first elaborate on the scope of these
obligations as defined in Article 1 echr. This chapter starts with an analysis of
the substantive and personal scope, whereas the primary focus is on jurisdic-
tion and extraterritoriality.

2 Substantive Scope: Which Rights?

According to Article 1 echr, States Parties are obliged to secure for every-
one within their jurisdiction the rights and freedoms defined in Section i of

* Legal expert at the Swiss Refugee Council.

1 Lambert, ‘The position of aliens in relation to the European Convention on Human Rights’
Human rights files, Application no. 8, 2007.
2 Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human
Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25 Leiden Journal of
International Law 860.

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the echr. Therefore, the Contracting Parties’ obligation to protect stretches

beyond the substantive rights determined in Articles 2 to 14 of the Convention,
and also covers Articles 15 to 18 which are provisions that define the limits to
derogation in times of emergency, restrictions on political activity of aliens,
the prohibition of abuse of rights and the restriction of the substantive rights.
Furthermore, in accordance with the text of the Protocols,3 the substantive
rights annexed to the echr through its Protocols, depending on whether a
State Party has ratified the Protocol, are to be regarded as additional articles
to the Convention and all the provisions of the Convention –​including Article
1 –​therefore apply accordingly.4 Finally, Article 1 imposes a negative duty on
the States Parties to refrain from violating the rights and freedoms defined in
Section i of the Convention, and also the positive obligation to take all neces-
sary steps to ensure the enjoyment of and access to the same.5

3 Personal Scope: Who Is Bound? Who Can Benefit?

3.1 Obligors
The Convention is a particular instrument of international law, in that it
does not create obligations between Contracting Parties reciprocally,6 but

3 Article 5 of Protocol 1 (the right to peaceful enjoyment of property, the right to education and
the right to free elections by secret ballot), Article 6 of Protocol 4 (no deprivation of liberty
for non-​fulfilment of contractual obligations, right to liberty of movement and freedom to
choose one’s residence, prohibition of a State’s expulsion of a national, prohibition of col-
lective expulsion of aliens) as amended by Protocol Application no. 11, Article 6 of Protocol
6 (abolition of the death penalty), Article 7 of Protocol 7 (the right of aliens to procedural
guarantees in the event of expulsion from the territory of a State, the right of a person con-
victed of a criminal offence to have the conviction of sentence reviewed by a higher tribunal,
the right to compensation in the event of a miscarriage of justice, the right not to be tried or
punished in criminal proceedings for an offence for which one has already been acquitted or
convicted (ne bis in idem) as amended by Protocol 11, Article 3 of Protocol 12 (general prohibi-
tion of discrimination) and Article 5 of Protocol 13 (banning the death penalty in all circum-
stances), which all determine the relationship between the Protocols and the Convention.
4 Schabas, The European Convention on Human Rights: A Commentary (Oxford University
Press, 2014, p. 88); Grabenwarter, European Convention on Human Rights –​Commentary (Beck
Verlag, 2014, p. 2).
5 Joseph and Mcbeth (eds), Research Handbook on International Human Rights Law (Edward
Elgar, 2011, pp. 73–​74). The ECtHR first held that (Article 8 of) the echr inherently contains a
positive obligation in Marckx v Belgium, Application no. 6833/​74 (ECtHR, 13 June 1979), para
31. In subsequent decisions, the Court has found most Convention rights to impose positive
obligations on the State.
6 Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005,
p. 193).

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State Jurisdiction and the Scope of the echr’s Protection 3

rather between Contracting Parties and all persons –​or, in the wording of the
Convention, ‘everyone’ –​within their jurisdiction.7 Furthermore, the obliga-
tions are binding on all state organs –​whether the organ exercises legislative,
executive, judicial or any other functions,8 and likewise also on private entities
or individuals endowed with and exercising state authority.9
At present, only the States that are Members of the Council of Europe are par-
ties to the Convention. As all Member States of the European Union (EU) are also
Member States of the Council of Europe, whereas the EU is not, the European
Court of Human Rights (ECtHR) could not hold the EU accountable for bind-
ing provisions of EU law that cause EU Member States to violate the echr. In
Matthews v the United Kingdom,10 the Court held that, though the Convention
did not exclude the transfer of competences to international organisations by
Member States to the Council of Europe, these Member States remained respon-
sible for the securement of the Convention rights. Even though the same Court
subsequently held in Bosphorus Airways v Ireland11 that it considered the EU to
protect fundamental rights in a manner which can be considered at least equiv-
alent to that for which the Convention provides, and that Member States’ imple-
mentation of binding EU law is therefore compatible with the echr, it also warned
that its finding in ‘Bosphorus’ is not final and susceptible to review. Therefore, any
divergences between EU law and the echr became liabilities for the EU Member
States.
Even though Protocol 14 to the Convention opened the way for the accession
of the European Union (EU) to the echr in 2004,12 and the EU’s own Treaty on
European Union (teu) as amended by the 2007 Treaty of Lisbon requires the
accession of the EU to the echr, the negative opinion of the Court of Justice
of the European Union of 201413 temporarily put the accession process on

7 Lambert, cit, p. 8.
8 Wille v Liechtenstein, Application no. 28396/​95 (ECtHR, 28 October 1999), which is con-
sistent with the views of the International Law Commission (icl) on the responsibility of
states, Yearbook of the International Law Commission (Vol ii, Part Two, 2001, 40).
9 See, for example, for the liability of a Contracting State for state actions under private law
or by private individuals: Swedish Engine Drivers’ Union v Sweden, Application no. 5614/​72
(ECtHR, 6 February 1976); Costello-​Roberts v the United Kingdom, Application no. 13134/​87
(ECtHR, 25 March 1993).
10 Matthew v the United Kingdom, Application no. 24833/​94 (ECtHR, 18 February 1999).
11 Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland, Application no. 45036/​
98 (ECtHR, 30 June 2005), especially under para 155.
12 Article 17 of Protocol 14 added a new para 2 to Article 59 of the Convention, which now
reads that ‘The European union may accede to this Convention’.
13 Court of Justice of the European Union (cjeu), Opinion 2/​13, ecli:eu:c:2014:2454. This
Opinion should not be confused with Opinion 2/​94 of the cjeu, in which the negative

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hold. The Draft Accession Agreement, the result of lengthy negotiations by the
Council of Europe and the EU Commission, was deemed to be incompatible
with EU law because it did not take into account specific characteristics of EU
law with regard to, among others, fixed human rights standards in areas of law
that have been fully harmonised by the EU, the application of ‘mutual trust’
in Justice and Home Affairs matters, and the monopoly of the jurisdiction of
the Court of Justice of the European Union (cjeu) on the interpretation and
validity of EU law.
More than four years later, after the Commission and the Council of Europe
publicly announced that they have addressed all issues, it is expected that a
revised Accession Agreement will soon be put forward.14 Meanwhile, breaches of
EU law can already lead to liability under the echr.15
Other international organisations cannot accede to the echr according
to Article 59(1) of the Convention. However, case law developed with regard
to the liability of Contracting States for actions implementing a commitment
under international law is applicable in relation to the EU as well as to other
international organisations. This case law16 of the ECtHR provides that delega-
tion of state authority to an international organisation does not exempt a state
party to the echr from its obligations under the Convention; case law that
is now even codified in the International Law Commission’s draft Articles on
Responsibility of International Organisations.17 This does not, however, mean
that any action attributable to Convention States participating in operations of

opinion of the Court was based on the (then) ec lacking competence to accede to the
echr under EU law as it stood at the time of the opinion. See cjeu, Opinion 2/​94,
ecli:eu:c:1996:140.
14 See, European Parliament <http://​www.europarl.europa.eu/​legislative-​train/​theme-​area-​
of-​justice-​and-​fundamental-​rights/​file-​completion-​of-​eu-​accession-​to-​the-​echr> last vis-
ited on 18 February 2019.
15 Ehlers refers to the refusal of a domestic court of an EU Member State Contracting Party
to refer a case to the cjeu for a preliminary ruling under Article 267 tfeu, which the
ECtHR has found to infringe the right to a fair trial under Article 6(1) of the echr, see
Coëme ea v Belgium, Application no. 32492/​96 (ECtHR, 22 June 2000), and Desmots v
France, Application no. 41358/​98 (ECtHR, 2 July 2002); Ehlers (ed), European Fundamental
Rights and Freedoms (De Gruyter, 2007, p. 42).
16 Matthews v the United Kingdom, cit; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim
Şirketi v Ireland, cit.
17 Grabenwarter and Pabel, Europäische Menschenrechtskonvention: ein Studienbuch (Beck,
2016); also Kälin and Künzli, The Law of International Human Rights Protection (Oxford
University Press, 2019, p. 92), on the International Law Commission’s Article 28 of the
draft Articles on Responsibility of International Organisations.

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State Jurisdiction and the Scope of the echr’s Protection 5

international organisations falls under the scrutiny of the ECtHR.18 Especially

in relation to United Nations activities, the ECtHR attributed the actions to the
UN itself and has ratione personae declined its jurisdiction.19

3.2 Beneficiaries
As already mentioned above, Article 1 echr provides that the rights enshrined
in the Convention must be secured to ‘everyone’ within the jurisdiction of the
Contracting Parties. The text of the Article clearly does not call for the prior
existence of any link, such as nationality or legal residence,20 between the
State Parties and a person for this person to fall under its scope. This does not
only include all natural persons from the moment of birth21 to the moment of
death,22 but according to Article 34 of the Convention23 also legal persons –​as
long as they are sufficiently independent from the States Parties. The Court

18 See the joint cases of Behrami and Behrami v France and Saramati v France, Germany and
Norway, Application no. 71412/​01 and Application no. 78166/​01, Admissibility Decision,
(2 May 2007) 45 ehrr SE10. See also Boivin v France, Application no. 73250/​01 (ECtHR 9
September 2008), in which the Court declined its competence in a civil service law dis-
pute against Eurocontrol, another international organisation.
19 For a critical review of the Court’s decision, see Sari, ‘Jurisdiction and International
Responsibility in Peace Support Operations: The Behrami and Saramati Cases’ (2008)
8 Human Rights Law Review 151. Furthermore, for a critical appraisal of the liability of
international organisations, see Orakhelashvili, ‘Jurisdictional immunity of international
organizations: from abstract functionality to absolute immunity’, in Orakhelashvili (ed),
Research Handbook on Jurisdiction and Immunities in International Law (Edward Elgar,
2015, pp. 497 ff).
20 The original text of the Convention as prepared by the Assembly proposed that the
rights of the Convention would merely be extended to ‘all persons resident within the
territories of the signatory States’. Through interference of the Legal Experts the liability
of the States Parties was extended to all persons within their jurisdiction; See Travaux
Préparatoires, Vol. iv, p. 20, referred to by Bates, The Evolution of the European Convention
on Human Rights: From its Inception to the Creation of a Permanent Court of Human Rights
(Oxford University Press, 2010, p. 84). See also Den Heijer, Europe and Extraterritorial
Asylum (Hart, 2012, p. 24).
21 Under Article 2 echr the question of whether an embryo or a foetus are entitled to fun-
damental rights is left to the discretion of the State Party; see Vo v France, Application
no. 53924/​00 (ECtHR, 8 July 2004), paras 82–​84, and also A, B and C v Ireland, Application
no. 25579/​05 (ECtHR, 16 December 2010), para 237. However, dissenting is Joseph, Human
Rights and the Unborn Child (Brill, 2009, pp. 193 ff).
22 Without including a right to end life, see Pretty v the United Kingdom, Application
no. 2346/​02 (ECtHR, 29 April 2002).
23 Article 34 of the Convention provides that ‘the Court may receive applications from any
person, non-​governmental organisation or group of individuals claiming to be the vic-
tim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto.’

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has found in case of legal entities under direct government control that a State
Party cannot both be applicant and respondent party.24 (Independent) legal
persons may also file an application on behalf of its members even though in
principle Article 34 provides for the right of individual petition.25
Furthermore, the clear wording of Article 1 echr means that the rights and
freedoms recognised by the echr are universally available to all individuals,
including aliens, independently of their nationality (or lack of nationality in
case of statelessness), residence title or domicile, as long as they are within the
jurisdiction of the Contracting Parties.26

4 The Definition of Jurisdiction in Instruments of International

Human Rights Treaties

As Article 1 echr provides that ‘everyone within the jurisdiction [of the
Contracting Parties]’ falls under the protective scope of the Convention, the
decisive link between the obligors and the beneficiaries –​or ‘threshold cri-
terion’ for the application of the Convention27 –​is the existence of jurisdic-
tion. Jurisdiction in regular public international law conditions the exercise
of sovereign state power on the existence of a territorial or personal connec-
tion, justifying the imposition of a state’s authority.28 In this sense, jurisdic-
tion ‘cannot be exercised by a State outside its territory except by virtue of
a permissive rule derived from international custom or from a convention’.29
Thus seen, jurisdiction is a delimitation of the regulatory power of states, pri-
marily to its own territory, vetoing the encroachment upon the sovereignty of
other states. Applying this interpretation under public international law to the
echr strictly, the term ‘jurisdiction’ of Article 1 seems to have the purpose of

24 Islamic Republic of Iran Shipping Lines v Turkey, Application no. 40998/​98 (ECtHR, 13
December 2007), para 81, in Ichim, Just Satisfaction under the European Convention on
Human Rights (Cambridge University Press, 2014, pp. 84–​85).
25 Metropolitan Church of Bessarabia and Others v Moldova, Application no. 45701/​99
(ECtHR, 13 December 2001); also Gomien, Short Guide to the European Convention on
Human Rights (Council of Europe, 2005, p. 167).
26 Lambert, cit, p. 9.
27 Besson, cit, p. 859.
28 Mills, ‘Rethinking Jurisdiction in International Law’ (2014) 84(1) British Yearbook of
International Law 194; also Ryngaert, ‘The concept of jurisdiction in international law’ in
Orakhelashvili, cit, pp. 50–​51.
29 Permanent Court of international Justice (pcij), ‘SS Lotus’ (France v Turkey), pcij 7
September 1927, pcij Series A Application no. 10, p. 19.

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State Jurisdiction and the Scope of the echr’s Protection 7

restricting the individuals to whom signatory states owe their human rights
obligations.30 Such an interpretation would however disregard the particular
characteristics of international human rights law.
It is recalled here that international human rights treaties stand out from
general international law, in that they impose obligations on the state with
regard to their dealings with individuals. Whereas jurisdiction in public inter-
national law thus seeks to limit assertions of state jurisdiction to minimalise
the potential for clashes between states, instruments of international human
rights law seek to bring individuals under the protection of a state by expand-
ing the scope of the jurisdiction of the state.31 ‘Jurisdiction’ in international
human rights instruments thus merely is a word that describes, but certainly
does not limit, state responsibility.32 Not all international human rights instru-
ments use the same language to describe state responsibility.33 Whereas some,
such as the Universal Declaration of Human Rights (udhr) have no jurisdic-
tion clause at all, the nature of the Declaration and its concept make a limi-
tation of State responsibility superfluous.34 Others, such as the International
covenant on Civil and Political Rights (iccpr) extend protection to all indi-
viduals within the state’s territory and subject to the state’s jurisdiction, which
explicitly confirms that the jurisdiction of a state under the iccpr goes beyond
the state’s territory.

30 King, ‘The Extraterritorial Human Rights Obligations of States’ (2009) 9(4) Human Rights
Law Review 523.
31 Ryngaert, Jurisdiction in International Law (2nd ed., Oxford University Press, 2015,
pp. 23–​24).
32 Scheinin, ‘Just another word?: Jurisdiction in the roadmaps of state responsibility and
human rights’, in Langford, Vandenhole, Scheinin and Van Genugten (eds), Global justice,
state duties: the extraterritorial scope of economic, social, and cultural rights in interna-
tional law (Cambridge University Press, 2013, p. 214).
33 See, for example, Moreno-​Lax and Costello, ‘Reflections on the EU Charter of Fundamental
Rights –​Extraterritorial Application’ in Peers, Hervey, Kenner and Ward (eds), The EU
Charter of Fundamental Rights: A Commentary (Beck, 2014, pp. 1668 ff) for an overview of
(the lack of) a notion of jurisdiction in international human rights instruments.
34 Other international human rights instruments without jurisdiction clause are the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (cat), the scope of application of which is for this reason held to be broad
(cf. Larocque, Torture, jurisdiction and immunity: theories and practices in search of
one another, in Orakhelashvili, cit, pp. 435–​436, whereas the International Covenant on
Economic, Social and Cultural Rights (icescr) does not have a jurisdiction clause either
but its scope is interpreted narrowly. It is therefore not possible to conclude that, if an
instrument of international human rights law does not have a jurisdiction clause its scope
should be interpreted to be broad or universal.

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5 Jurisdiction under Article 1 echr

5.1 (More Than) State Territory

While the draft echr initially also limited its application to all persons resid-
ing within the territories of the Contracting States,35 it was thought that this
could seriously restrict the states’ liability for actions (the effects of which
would become apparent) outside their territories. Therefore, the words ‘resid-
ing within the territories’ were replaced with ‘within its jurisdiction’ in a later
draft, and included in the final wording of the Convention as entered into force
in 1953.36 While it was therefore evident from the onset that the term ‘jurisdic-
tion’ in Article 1 echr covers more than just the territory of the Contracting
States,37 what its scope would be in practice was however unclear.
That the jurisdiction of the Contracting Parties may be extended beyond
their own territories is explicitly provided for in Article 56 echr.38 The first
and fourth paragraph of this Article permit any of the Contracting Parties to
notify the Council of Europe that its jurisdiction is extended to all or any of the
territories for whose international relations it is responsible, and declare also
on behalf of these territories that it accepts the competence of the Court as per
Article 34 of the Convention. Wherever a State Party has made a declaration
under Article 56 echr, any person within the extended territory falls within
the jurisdiction of that State in the meaning of Article 1 echr.39 However, such

35 Travaux Préparatoires, part ii, p. 276.

36 See fn 16.
37 It led to the Finnish delegate to the UN proposing the same wording for the definition of
the scope of obligations under the UN Convention on the Rights of the Child, as refer-
ring to ‘jurisdiction’ would cover every possible solution; Detrick, ‘The United Nations
Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires” ’ in Den
Heijer, cit, p. 25.
38 This Article was included in the Convention for historical reasons, and is sometimes
called the ‘colonial clause’, see Milanovic, Extraterritorial Application of Human Rights
Treaties: Law, Principles and Policy (Oxford University Press, 2011, p. 129), who believes
that the Court’s ruling in Al-​Skeini and especially paragraph 140 of the judgment makes
the Article obsolete.
39 Few Contracting States have made use of Article 56 echr. The United Kingdom has
extended the application of the Convention for Anguilla, Bermuda, British Virgin Islands,
Cayman Islands, Falkland Islands, Gibraltar, the Bailiwick of Guernsey, the Isle of Man,
the Bailiwick of Jersey, Montserrat, St Helena, Ascension and Tristan da Cunha, South
Georgia and South Sandwich Islands, Sovereign Base Areas in Cyprus, and the Turks and
Caicos Islands. Though more territories were formerly covered, some of them have since
gained independence. Furthermore, the Netherlands has formerly extended application
to Surinam, Netherlands Antilles and Aruba; the Federal Republic of Germany before
the unification assumed responsibility for West Berlin, Denmark assumed liability for
Greenland in 1953, whereas Belgium did not avail itself of the possibility to notify the

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an extension of the application of the echr is not the same as exercising effec-
tive control over an area outside the national territory of the state in the classi-
cal sense of extra-​territorial jurisdiction.40 Therefore, Article 56 echr confirms
the view that ‘a State’s jurisdiction’ under Article 1 echr is primarily territorial,
and the presumption that a State has jurisdiction over all its territory.41
Territorial jurisdiction remains, even in cases where a State temporarily
ceases to effectively control part of its territory. In Ilaşcu and Others v Moldova
and Russia, Moldova had lost effective control over the part of its territory in
which a separatist regime, supported by Russia, had established itself. After a
while, Moldova gave up military operations to regain control over the region,
though it maintained control over issues like customs and civil documenta-
tion. In this case, the Court held that Moldova’s jurisdiction had not ceased
to exist with regard to the separatist territory: ‘Moldova still has a positive obli-
gation under Article 1 of the Convention to … secure to the applicants the rights
guaranteed by the Convention’.42 However, in the same case the Court also held
that the scope of the obligation of the State, in cases such as these where a state
is prevented from exercising its authority, the scope of its jurisdiction may be
limited, with the limitation being offset by another State assuming extraterri-
torial jurisdiction through the effective control of part of the territory.43

5.2 Extra-​Territoriality Stricto Sensu before and after Banković

The first case in which the Court relied on the criterion of the exercise of effec-
tive control of an area outside a State’s own territory for the establishment of
that State’s liability was the case of Loizidou v Turkey (Preliminary Objections).44
In this and similar cases,45 the Court established that Contracting Parties’

Council of an extension of the application of the Convention to Congo (X ea v Belgium,

Application no. 1065/​61 (ECtHR, 30 May 1961)). See Hallo De Wolf, ‘Benign Territorial
Human Rights Colonialism? The Application of Human Rights Treaties in Overseas
Countries and Territories’ in Kochenov, EU Law of the Overseas: Outermost Regions,
Associated Overseas Countries and Territories, Territories Sui Generis (Wolters Kluwer, 2011,
pp. 327 ff) for an overview of the application of Article 56 echr.
40 Fripp, Moffatt and Wilford (eds), The Law and Practice of Expulsion and Exclusion from
the United Kingdom; Deportation, Removal, Exclusion and Deprivation of Citizenship (Hart,
2011, p. 118).
41 Assanidze v Georgia, Application no. 71503/​01 (ECtHR, 8 April 2004), paras 137 and 139.
42 Ilaşcu and Others v Moldova and Russia, Application no. 48787/​99 (ECtHR, 8 July 2004),
paras 333 and 334.
43 Idem, para 392.
44 Loizidou v Turkey, Application no. 15318/​89 (ECtHR, 18 December 1996) (prel. Obj.),
para 62.
45 Cyprus v Turkey, Application no. 25781/​94 (ECtHR, 12 May 2014), para.76; Alexandrou v
Turkey, Application no. 16162/​90, (ECtHR, 28 July 2009) para 20; Solomonides v Turkey,

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responsibility arises when as a consequence of military action it exercises

effective control of an area outside its national territory. Such control then
gives rise to the obligation to secure in the controlled area the rights and free-
doms set out in the echr.46
Extraterritorial jurisdiction has also been acknowledged by the Court in cases,
not involving the occupation of foreign territory. The Court’s ruling in Soering
showed that jurisdiction remains intact in cases of extradition or expulsion of
a person by a Contracting State, where the infringement of the extradited or
expelled person’s Convention rights would be at the hands of the receiving state
but where the extraditing Contracting State would be liable under the echr.47
In Drozd, where two burglars convicted by an Andorran Court which consisted
of, amongst others, a French and a Spanish judge, the Court explicitly stated that
‘… “jurisdiction” is not limited to the national territory of the High Contracting
Parties; their responsibility can be involved because of acts of their authorities
producing effects outside their own territory’.48 In the early decision of X v the
Federal Republic of Germany,49 in which the applicant alleged that the German
Consul had defamed him by advising his wife-​to-​be against marrying him, the
Court agreed that acts of diplomatic and consular agents, who are present on for-
eign territory in accordance with provisions of international law, may amount to
an exercise of jurisdiction. The Court also recognises so-​called flag state jurisdic-
tion as defined in Article 92 of the UN Convention on the Law of the Sea of 1982,
which establishes state jurisdiction on board an aircraft or vessel, flying the flag of
that state.50 All of these instances indicate a willingness on the side of the Court
to interpret the notion of ‘jurisdiction’ of Article 1 echr broadly.
The Court’s ruling in Banković in 2001 therefore came as a surprise.51 The
applicants in this case, relatives of five persons who lost their lives as the

Application no. 16161/​90 (ECtHR, 27 July 2010), para 24; Orphanides v Turkey, Application
no. 36705/​97 (ECtHR, 22 June 2010), para 23.
46 Loizidou v Turkey, cit, para 62.
47 Soering v The United Kingdom, Application no. 14038/​88 (ECtHR, 7 July 1989); Vilvarajah
and others v the United Kingdom, Application Nos. 13163/​87, 13164/​87, 13165/​87, 13447/​87
and 13448/​87 (ECtHR, 30 October 1991).
48 Drozd and Janousek v France and Spain, Application no. 12747/​87 (ECtHR, 26 June 1992),
para 91.
49 X v the Federal Republic of Germany, Application no. 1611/​62 (ECtHR, 25 September 1965).
50 Banković and Others v Belgium and Others (Decision as to Admissibility), Application
no. 52207/​99 (ECtHR, 12 December 2001), para 73.
51 Orekhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Case
law of the European Court of Human Rights’ (2003) 14 European Journal of International
Law 568. Also, Milanović, From Compromise to Principle: Clarifying the Concept of State
Jurisdiction in Human Rights Treaties (2008) 8 Human Rights Law Review 411.

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State Jurisdiction and the Scope of the echr’s Protection 11

result of the 1999 aerial nato bombardment of the Serbian radio/​television

station (rts) in Belgrade, together with one survivor of the bombardment,
argued that ‘anyone adversely affected by an act imputable to a Contracting
State, wherever in the world that act may have been committed or its con-
sequences felt, is thereby brought within the jurisdiction of that State’.52 The
applicants argued further that denying admissibility of the case on the basis
of a lack of jurisdiction would leave a regrettable vacuum in the Convention
system of human rights’ protection. The Court rejects this claim, stating ‘…
the Convention was not designed to be applied throughout the world, even in
respect of the conduct of Contracting States. Accordingly, the desirability of
avoiding a gap or vacuum in human rights’ protection has so far been relied
on by the Court in favour of establishing jurisdiction only when the territory
in question was one that, but for the specific circumstances, would normally
be covered by the Convention’.53 The strong formulation of the principle of
territorial jurisdiction, and the exhaustive detailed list of exceptional circum-
stances in which extraterritorial jurisdiction might be accepted by the Court
caused many to fear that after Banković the Court would only in very few cases
keep a Contracting State liable for actions outside of its own sovereign terri-
tory.54 Fortunately, recent case law shows a different picture.
The facts in Öcalan v Turkey,55 a case filed in the same year as Bancović,
did not fit in any of the four categories of circumstances that could lead to
extraterritorial application of the echr as listed in the Banković ruling. This
case involved the irregular extradition process of Öcalan, a Turkish citizen of
Kurdish origin considered a terrorist by the Turkish authorities, while Öcalan
was in Kenya. Though Kenyan officials worked together with Turkish officers to
capture Öcalan while at Nairobi airport, this did not constitute Turkey having
effective control over Kenyan territory. However, the ECtHR’s Grand Chamber
asserted jurisdiction, as it found that ‘directly after being handed over to the
Turkish officials by the Kenyan officials, the applicant was under effective
Turkish authority and therefore within the “jurisdiction” of that State for the
purposes of Art 1 of the Convention, even though in this instance Turkey exer-
cised its authority outside its territory’.56

52 Idem, para 75.

53 Idem, para 80.
54 Miller, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial
Jurisdiction under the European Convention’ (2009) 20(4) The European Journal of
International Law 1229.
55 Öcalan v Turkey (Grand Chamber), Application no. 46221/​99 (ECtHR, 12 May 2005).
56 Öcalan v Turkey, cit, para 91.

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Thus, these two seemingly contradictory rulings of the Court in the same
year produced uncertainty with regard to the boundaries of extraterritorial
jurisdiction.57 However, it is possible to reconcile the two by arguing that
Banković confirmed extra-​territorial jurisdiction of Contracting States, listing
four examples of exceptional cases in which the particular circumstances of
the case justify extra-​territorial jurisdiction under Article 1 echr,58 whereas
Öcalan adds a fifth category of circumstances in which the Court may decide
to accept extraterritorial jurisdiction: in a situation in which the authorities of
a State Party exercise temporary ‘effective control’ over persons outside their sov-
ereign territory, the obligation on the state to respect the rights and freedoms
as defined in the echr may apply.
That Öcalan was not a one-​off decision became clear in the more recent
case of Al-​Skeini, where the Court was asked to establish whether the appli-
cants that were killed by British troops either in custody in a United Kingdom
prison in Iraq or while on patrol in the city of Basra fell within the jurisdic-
tion of the United Kingdom. Contrary to what the House of Lords had previ-
ously decided in the same case, basing itself on the case law of the ECtHR on
jurisdiction under Article 1 echr, the Court deemed jurisdiction not to arise
from ‘control over the building, aircraft or ship in which the individual were
held … [but from] the exercise of physical power and control over the person
in question.’59 In this case, the United Kingdom had exercised public powers
on the territory of a state (Iraq) that consented to its presence, powers that
would normally be exercised by the territorial state.60 Therefore, in Al-​Skeini
the Court could rely on a legal entitlement to exercise public powers on the
territory of another state.61 Thus, even though not all use of physical force by a
State Party outside its own territory could lead to a violation of its obligations
under the echr (which would completely overturn Bancović), the Court in
Al-​Skeini did acknowledge once more that a Contracting State is bound by its
obligations under the echr when it is invited to exercise public powers out-
side its own territory. Even though the judgment of the Court in Al-​Skeini thus
seemed to restrict the scope of the fifth category of circumstances in which

57 Lord Rodger of Earlsferry in his judgment in Al-​Skeini v Secretary of State for Defence
[2007] ukhl 26, lamented that ‘the judgments and decisions of the European Court do
not speak with one voice’ and that the case law of the Court presented ‘considerable dif-
ficulties for national courts which have to try to follow the case law’.
58 Banković and Others v Belgium and Others, cit, para 61.
59 Al-​Skeini ea v the United Kingdom, Application no. 55721/​07 (ECtHR, 7 July 2011), para 136.
60 Idem, para 135.
61 Chetail and Bauloz, Research Handbook on International Law and Migration (Edward
Elgar, 2014, pp. 124–​125).

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extraterritorial jurisdiction may arise, the significance of the Court’s ruling

even in times of armed conflict has already been proved in subsequent cases
before the European Court,62 and also before national courts.63

5.3 Extraterritoriality and the Expulsion of Aliens

As established earlier on in this chapter, aliens can principally rely on the
rights and freedoms as provided by the echr, to the extent provided for by the
relevant Articles of the Convention,64 provided they are within the jurisdic-
tion of the Contracting Parties. The establishment of jurisdiction over aliens
is therefore of particular importance. The previous analysis of the jurisdiction
under Article 1 echr has shown that the jurisdiction of the Contracting States
is not limited to the territory of these states. This is the more significant where
states seek to limit their responsibility for aliens by ensuring that these aliens
cannot reach the state territory. It is here that case law generated in decisions
like Öcalan and Al-​Skeini are particularly relevant.
According to international customary law, the sovereignty of a state implies
its control over the entry and residence of aliens.65 Even though a number
of instruments of international law provide for the freedom of movement of
aliens,66 the scope of this freedom is limited and does not provide aliens with
a right to immigrate or a right to be granted asylum.67 Thus, in principle, a state
may in principle keep away or remove aliens from their territory, as a result of
their territorial sovereignty.
The sovereignty of states can nevertheless be limited by instruments of
international law.68 Nowadays, the number of treaties, conventions, decla-
rations and other instruments of international law has grown to such an

62 Hassan v the United Kingdom, Application. Application no. 29750/​ 09 (ECtHR, 16

September 2014).
63 Al-​Saadoon & Ors v Secretary of State for Defence [2015] ewhc 715.
64 The echr and its Protocols contain several articles that either limit or extend the scope
of application of particular rights and freedoms to aliens, e.g. Article 5(1)f and Article
16, Article 1 of Protocol 1, and Article 1 of Protocol 7 limit the non-​discrimination clause,
whereas Article 4 of Protocol 4 explicitly protects aliens against collective expulsion.
65 Kelsen, Principles of International Law (The Lawbook Exchange, 2003, p. 315).
66 See, for example, Article 2 of Protocol Application no. 4 to the echr, and also Article 12 of
the iccpr.
67 Lambert, cit, p. 16.
68 See for early international case law on the limits of sovereignty the decisions of the per-
manent Court of International Justice (pcij) in the Nationality Decrees Case (1923), in
which the French case rested on French territorial sovereignty, and the British case rested
on treaty obligations between France and the United Kingdom; and the Lotus Case (1927),
concerning the exercise of jurisdiction by Turkey over foreign ships on the high seas.

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extent that despite the principle of territorial sovereignty a state is rarely

free to expel an alien from its territory.69 With regard to the sovereignty of
states, a Member of the Council of Europe, the echr has played a central
role in limiting their freedom pertaining to the treatment of aliens, as will
be explored per relevant Article throughout this volume. Thus, the Court
has interpreted Article 1 echr to cover also actions of a Contracting State’s
military while on the high seas, thereby bringing extraterritorial actions
preventing the access to territory of a Contracting State within the juris-
diction of that State. In its ruling in Hirsi Jamaa,70 the Court held that the
taking on board of aliens at sea by Italian military ships –​and thus the exer-
cise of a continuous and effective control over the persons concerned by Italian
authorities71 –​did indeed trigger the extraterritorial jurisdiction of Italy.
Consequently, after jurisdiction being established, the fact that the Italian
military had returned these aliens, including asylum seekers, without sub-
jecting them to identification or refugee determination procedures, could
be assessed in the light of Articles 3 and 13 echr and Article 4 of Protocol
Application no.4 to the echr. The case of Hirsi Jamaa has thus become the
copingstone of the Court’s jurisprudence on the extraterritorial jurisdiction
of Contracting States under the echr.

6 Conclusion

Understanding Article 1 echr is essential to the proper interpretation and

application of the Convention, in that the Article does not only define the
right-​holders and duty-​bearers of the Convention, but also stipulates to whom
the duty-​bearers are obliged to guarantee the rights and freedoms as defined in
the Convention. Article 1 echr is therefore the starting point of each and every
case in which the applicants rely on the Convention, in that it answers the
question of whether the Convention can indeed be invoked. Central to answer-
ing this question is the issue of jurisdiction. This contribution has analysed the

69 Goodwin-​Gill, International law and the movement of persons between states (Clarendon
Press, 1978, pp. 194 ff).
70 Hirsi Jamaa ea v Italy, Application no. 27765/​09 (ECtHR, 23 February 2012).
71 Coppens, ‘Interception of Alien Boats at Sea’, in Moreno-​Lax and Papastavridis (eds), ‘Boat
Refugees’ and Aliens at Sea: A Comprehensive Approach: Integrating Maritime Security with
Human Rights (Brill, 2017, p. 219).

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development of the relevant jurisprudence of the Court, concluding that, even

though jurisdiction was interpreted first and foremost as territorially limited,
it should be clear that also extraterritorial exertions of state authority cannot
escape the scrutiny of the Court.

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