Date: 2020
Type: Article
Reconceptualising extraterritoriality under the ECHR as concurrent responsibility : the case for a principled and tailored approach
European journal of legal studies, 2020, Vol. 12, No. 1, pp. 157-194
DEMETRIADES, Alexandros, Reconceptualising extraterritoriality under the ECHR as concurrent responsibility : the case for a principled and tailored approach, European journal of legal studies, 2020, Vol. 12, No. 1, pp. 157-194
- https://hdl.handle.net/1814/66988
Retrieved from Cadmus, EUI Research Repository
The law surrounding the extraterritorial application of the European Convention on Human Rights raises two key controversies which have troubled legal scholars for over two decades. First, the conceptual foundations of jurisdiction remain unclear. Secondly, the nature and extent of a respondent State's responsibility regarding extraterritorial violations of Convention rights has been bedevilled by uncertainty. This paper aims to clarify these issues. The author advocates a purposive interpretation of the case law which would give rise to what may be termed a 'concurrent and tailored' model of extraterritorial State responsibility. In devising this model, the paper makes two propositions. First, it explores the doctrinal basis of jurisdiction and argues that when a High Contracting Party to the Convention is operating in the territory of another signatory State, this should lead to the concurrent jurisdiction of both States under Article 1 ECHR. Secondly, the paper examines the nature of a respondent State's obligations and consequent responsibility when it is acting extraterritorially. The author proposes that this responsibility should be tailored according to that State's factual ability to secure the enjoyment of Convention rights in the circumstances of each case.
Additional information:
Published online: 29 April 2020
Cadmus permanent link: https://hdl.handle.net/1814/66988
Full-text via DOI: 10.2924/EJLS.2019.015
ISSN: 1973-2937
External link: https://ejls.eui.eu/
Publisher: European University Institute
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