Extraterritorial Application of the European Convention of Human Rights
Like most of international and constitutional instruments, the European Convention on Human Rights is applicable according to the territoriality principle: each Convention State is responsible primarily for all violations of human rights which take place within its territory. Therefore, situations when jurisdiction (and – responsibility) of a state extends beyond its territorial limits are regarded as exceptional.
But, and here the specificity of human rights instruments comes into light, interpretation of the European Convention should not unduly restrict the scope of protection of human rights. The interpretation of the Convention must not lead to creation of “black holes” where no one is held responsible for certain types of human rights violations. Thus, there must be some limit to mechanical applications of the territoriality principle.
In the case law of the European Court of Human Rights those problems have been emerging in respect of two different areas which, with some oversimplification, could be labelled as “extraterritoriality” and “attributability”.
The former evokes the question, how the “extraterritoriality exception” should be applied in situations where human rights violations take place outside the national territory, but with some contribution or participation of one of the Convention States. The importance of the question becomes particularly relevant for situations of (lawful or unlawful) military action undertaken either on a territory of another Member State or outside the territorial boundaries of the Convention.
The latter raises the question whether (and – to what extent) a Convention State is responsible for actions which it undertakes merely in the implementation of decisions taken at the global level, in particular by the United Nations Security Council. The importance of the question becomes particularly relevant in the context of growing activity of the USNC which mandates military actions abroad as well as anti-terrorist measures (like blacklisting) at the domestic level.
Judge Lech Garlicki (born in 1946 in Warsaw, Poland) is a Polish jurist and constitutional law specialist. Since 1968 he has worked at the Warsaw University (since 1987 as full professor), in the years 1980-1993 was member of the Warsaw bar, in the years 1993-2001 judge of the Constitutional Court of Poland and in the years 2002-2012 judge of the European Court of Human Right (president of the 4th Section in 2011-2012).
He served recently, as visiting professor, at the Tel Aviv University and the Hong Kong University and for the Fall of 2013 is affiliated with the New York University.
Judge Garlicki is vice-president of the International Association of Constitutional Law and one of the Founding Members of the European Law Institute. He lectured at numerous universities in Europe, the United States, Israel, Japan, China and Hong Kong. He is author or editor of over 300 publications in different languages, including a five-volume Commentary to the 1997 Constitution of Poland and two-volume Commentary to the European Convention on Human Rights.