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Banković v. Belgium (Admissibility). App. No. 52207/99

Published online by Cambridge University Press:  27 February 2017

Alexandra Rüth  and
Mirja Trilsch
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Type
International Decisions
Information
American Journal of International Law , Volume 97 , Issue 1 , January 2003 , pp. 168 - 172
Copyright
Copyright © American Society of International Law 2003

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References

1 Banković v. Belgium, Admissibility, App. No. 52207/99 (Eur. Ct. H.R. Dec. 12, 2001) [hereinafter Decision]. In addition to Belgium, die respondents were the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey, and the United Kingdom. The decisions of, and basic texts relating to, the European Court of Human Rights are available online at the Court’s Web site, <http://www.echr.coe.int>.

2 November 4, 1950, ETS No. 5, 213 UNTS 222.

3 Article 1 provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

4 Decision, supra note 1, para. 61 (citing Select Committee of Experts on Extraterritorial Criminal Jurisdiction, European Committee on Crime Problems, Council of Europe, Extraterritorial Criminal Jurisdiction 8-30 (1990)).

5 Id., para. 62. Article 15(1) provides:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

6 Decision, supra note 1, para. 49 (discussed at id., para. 62).

7 Council of Europe, 3 Collected Edition of the Travaux Préparatoires of the European Convention on Human Rights 260 (cited in Decision, supra note 1, para. 19).

8 Decision, supra note 1, para. 61 (discussed at id., paras. 63, 65).

9 Id., para. 64. Cases cited by the Court on this point include Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) para. 102 (1989) (discussed in Richard B. Lillich, Case Report: The Soering Case, 85 AJIL128 (1991)) and Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981). The Court has so far applied this approach not only to the Convention’s substantive provisions, as in Soeringand Dudgeon, but also to the provisions relating to a contracting party’s recognition of the competence of the Convention organs to examine a case (former Articles 25 and 46), as in Loizidou v. Turkey, Preliminary Objections, 310 Eur. Ct. H.R. (ser. A) para. 71 (1995) (discussed injuliane Kokott & Beate Rudolf, Case Report: Loizidou v. Turkey, 90 AJIL 98 (1996)).

10 Decision, supra note 1, para. 65.

11 Id.

12 See supra note 9. The case is discussed in Decision, supra note 1, para. 68.

13 Drozd v. France, 240 Eur. Ct. H.R. (ser. A) (1992). The case is analyzed in Decision, supra note 1, para. 69.

14 Loizidou v. Turkey, Preliminary Objections; Loizidou v. Turkey, Merits, 1996-VI Eur. Ct. H.R. 2216 (discussed in Beate Rudolf, Case Report: Loizidou v. Turkey, 91 AJIL 532 (1997)).

15 Cyprus v. Turkey, App. No. 25781/94 (Eur. Ct. H.R. May 10, 2001) (discussed in Frank Hoffmeister, Case Report: Cyprus v. Turkey, 96 AJIL 445 (2002)).

16 Decision, supra note 1, para. 71.

17 Id., para. 75.

18 Id. The Court saw its opinion supported by Convention Article 19 and suggested that “had the drafters of the Convention wished to secure jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the same as or similar to the contemporaneous Articles 1 of the four Geneva Conventions of 1949,” id., which require the state parties to respect the Conventions “in all circumstances.”

19 Decision, supra note 1, para. 75.

20 Id., para. 80; see Cyprus v. Turkey, para. 78.

21 Loizidou v. Turkey, Merits, 1996-VI Eur. Ct. H.R. 2216, para. 52. For a closer analysis of the Court’s findings concerning jurisdiction in Loizidou v. Turkey, Preliminary Objections, 310 Eur. Ct. H.R. (ser. A) (1995), see Kokott & Rudolf, supra note 9.

22 Although the Court rightly pointed out that the factual setting of the instant case was different from those in Soeringv. United Kingdom, 161 Eur. Ct. H.R. (ser.A) (1989), and Drozd v. France, 240 Eur. Ct. H.R. (ser.A) (1992), it is noteworthy that the Court relied on the very same cases as examples of its “established case law” that jurisdiction is not necessarily confined to the national territory. See Loizidou v. Turkey, Preliminary Objections, para. 62; Decision, supra note 1, paras. 68, 69.

23 Undisputedly, “jurisdiction” in public international law is primarily based on territoriality. See, e.g., 1 Oppenheim’s International Law 458 (Jennings, Robert & Watts, Arthur eds., 9th ed. 1992)Google Scholar; Oxman, Bernard H., Jurisdiction of States, in 3 Encyclopedia of Public International Law 55, 56 (Bernhardt, Rudolf ed., 2d ed. 1997)Google Scholar.

24 1 Oppenheim’s International Law, supra note 23, at 456.

25 Loizidou v. Turkey, Merits, para. 52; Loizidou v. Turkey, Preliminary Objections, para. 62; Cyprus v. Turkey, para. 76; Decision, supra note 1, para. 70.

26 With respect to Article 2(1) of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171, and the formulation “within its territory and subject to its jurisdiction,” such an approach is favored by Meron, Theodor, Extraterritoriality of Human Rights Treaties, 89 AJIL 78, 80–82 (1995)Google Scholar, and Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary 41–43 (1993)Google Scholar.

27 Decision, supra note 1, para. 70; Loizidou v. Turkey, Merits, paras. 52-57; Loizidou v. Turkey, Preliminary Objections, para. 62; Cyprus v. Turkey, para. 76.

28 Note, however, that according to the dissenting opinions in Chahal v. United Kingdom, 1996-V Eur. Ct. H.R. 1831 (discussed in Beate Rudolf, Case Report: Chahal v. United Kingdom, 92 AJIL 70 (1998)), the case’s extraterritorial aspectjustified a lower level of human rights protection. Moreover, the dissents considered this conclusion to be so evident as to require no explanation. A similar idea is proposed by Meron, supra note 26, at 80, in the context of Article 2 (1) of the International Covenant on Civil and Political Rights.

29 Cyprus v. Turkey, para. 78. The argument was first voiced by the applicant in Loizidou v. Turkey, Preliminary Objections, para. 57.

30 The substantially different case of Matthews v. United Kingdom, 1999-1 Eur. Ct. H.R. 251 (discussed in Beate Rudolf, Case Report: Denise Matthews v. The United Kingdom, 93 AJIL 682 (1999))—which involved the supranational European Communities and the possible violation of human rights in relation to a European Parliament election—represents the Court’s only pronouncement to date on the problem of state responsibility for alleged human rights violations arising out of the actions of an international organization.