ECtHR, Bankovic v. Belgium, Grand Chamber, App. No. 52207/99 (2001), excerpt | Brett Johnson | August 01, 2016


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ECtHR, Bankovic v. Belgium, Grand Chamber, App. No. 52207/99 (2001), excerpt

[The applicants were citizens of the Federal Republic of Yugoslavia who either were injured or lost family members as a result of a NATO missile strike against the Serbian Radio and Television buildings in Belgrade in 1999. The application was brought against European states that were members of NATO, and alleged violations of the European human rights convention, although Serbia had not yet become a member of the Council of Europe, and so was not eligible to ratify the Convention. The respondent governments argued that the applicants were not covered by the Convention, because Article 1 required states parties to secure rights and freedoms only “to everyone within their jurisdiction.”]

European Court of Human Rights (Grand Chamber)

Bankovic v. Belgium et al.

App. No. 52207/99 (2001)

57. As to the "ordinary meaning" of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. While international law does not exclude a state's exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states . . . .
59. The Court is of the view, therefore, that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case . . . .
66. Reference has been made in the Court's case law, as an example of jurisdiction "not restricted to the national territory" of the respondent State . . . , to situations where the extradition or expulsion of a person by a contracting state may give rise to an issue under Articles 2 and/or 3 (or, exceptionally, under Articles 5 and/or 6) and hence engage the responsibility of that State under the Convention [citing Soering v. United Kingdom, and similar cases]. However, the Court notes that liability is incurred in such cases by an action of the respondent State concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state's competence or jurisdiction abroad ...
68. Moreover, in [Loizidou v. Turkey, 1996-IV Eur. Ct. H.R., App. No. 15318/89 (Grand Chamber) (involving Turkey’s occupation of Northern Cyprus)], the Court found that, bearing in mind the object and purpose of the Convention, the responsibility of a contracting party was capable of being engaged when as a consequence of military action (lawful or unlawful) it exercised effective control of an area outside its national territory. The obligation to secure, in such an area, the Convention rights and freedoms was found to derive from the fact of such control whether it was exercised directly, through the respondent State's armed forces, or through a subordinate local administration. The Court concluded that the acts of which the applicant complained were capable of falling within Turkish jurisdiction within the meaning of Article 1 of the Convention. . . . .
69. In sum, the case law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.
71. Additionally, the Court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant state.
[W]ere the present applicants therefore capable of coming within the "jurisdiction" of the respondent States?
72. The applicants maintain that the bombing of RTS by the respondent States constitutes yet a further example of an extra-territorial act which can be accommodated by the notion of "jurisdiction" in Article 1 of the Convention, and are thereby proposing a further specification of the ordinary meaning of the term "jurisdiction" in Article 1 of the Convention. The Court must be satisfied that equally exceptional circumstances exist in the present case which could amount to the extra-territorial exercise of jurisdiction by a contracting state.
73. In the first place, 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". Admittedly, the applicants accept that jurisdiction, and any consequent state Convention responsibility, would be limited in the circumstances to the commission and consequences of that particular act. However, 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 . . . . Indeed the applicants' approach does not explain the application of the words "within their jurisdiction" in Article 1 and it even goes so far as to render those words superfluous and devoid of any purpose. . . .
78. [T]he Convention is a multi-lateral treaty operating, subject to Article 56 of the Convention,* 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. 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. [* Article 56 (1) enables a contracting state to declare that the Convention shall extend to all or any of the territories for whose international relations that state is responsible.]
The Court is not therefore persuaded that there was any jurisdictional link between the persons who were victims of the act complained of and the respondent States. Accordingly, it is not satisfied that the applicants and their deceased relatives were capable of coming within the jurisdiction of the respondent States on account of the extra-territorial act in question.


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August 01, 2016

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