Extraterritorial Application Of International Human Rights Treaties

As one of the most important legal sources of International Human Rights Law, the international human rights treaties create rights and obligations between State Parties; more importantly, they create obligations for States to ensure human rights protection towards individualswho are "within their jurisdiction". Most of the time, human rights violations are committed by a State Party within its territory, but the potential human rights violations committed outside a State’s territory during its extraterritorial actions are not precluded.After the "911" attack, States have largely increased their extraterritorial actions to combat terrorism, the extraterritorial human rights violations increased accordingly. As some States Parties tend to avoid human rights obligations under relevant human rights treaties through extraterritorial actions, it is necessary to set consistent principles and standards for the extraterritorial application of international human rights treaties.Since the main international human rights treaties define the scope of application through a "jurisdiction clause", it is necessary to start with a clarification of the notion of jurisdiction. In the Bankovic case of2001, European Court of Human Rights applied the jurisdiction doctrine in traditional international law to define the jurisdiction in European Convention of Human Rights. In the first part of this article, we contest this opinion. By referring to the etymology of the term "jurisdiction" and the vocation of international human rights law, we hold that the jurisdiction in the context of international human rights treaties should not be limited by a State’s national territory, nor should it necessarily be a legal competence, as the jurisdiction in international law does. After clarifying what is not a jurisdiction, the second part focuses on a categorized case analysis, with the aim of identifying the key elements applied by the courts to establish the extraterritorial jurisdiction. Most of the13cases come from the European Court of Human Rights, since its case law on this issue is the most developed. Based on the analysis of the first two parts, in the last part we propose an unified principle of establishing extraterritorial jurisdiction: the de facto authority and control over individual. In order to ensure a more complete human rights protection and to prevent the abuse of human rights, we propose a clear separation of the test of jurisdiction and the test of obligation; when considering whether a State should bear responsibilities under certain human rights treaty, and division of positive obligation and negative obligation is proposed to be applied.