CYIL vol. 11 (2020)
PAVEL ŠTURMA CYIL 11 (2020) individuals. The States parties to the ECHR are obliged to do so not anywhere in the world but only with respect to individuals within their jurisdiction. The key is Article 1 of the ECHR that provides: “ The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention. ” As it was rightly pointed out, “human rights jurisdiction” under Article 1 is pivotal to the application of the ECHR. “ECHR rights apply and give rise to duties, provided there is a relationship of jurisdiction between their potential right holders and their potential duty bearers, i.e., between some private parties and one (or more) State Party”. 9 This jurisdiction is essentially territorial in scope, but it can also be extraterritorial in some cases. The territorial jurisdiction still constitutes a rule under general international law and in the jurisprudence of the ECtHR. The extraterritorial jurisdiction can be exercised by a State party to the ECHR through its control over a certain person (personal control) or through its control over a territory outside national territory (spatial control). Although the Court tends to interpret such jurisdiction broadly in some cases, 10 it took a rather restrictive approach in other cases. 11 It is interesting that the ECtHR, when adopting a more restrictive approach to the scope of extraterritorial jurisdiction, bears on the coherence of international law. 12 At the same time, the concept of jurisdiction of a State under Article 1 needs to be distinguished from the jurisdiction of the ECtHR and from the attribution of a specific conduct to a State for the purpose of its responsibility. 13 Put simply, human rights jurisdiction (under Article 1) refers to a certain link of control (territorial or personal) between the State in question and an individual right holder. By contrast, attribution refers to a link (organic, functional or other) between a person or entity, author of the conduct in violation of an international obligation, and the State to make it responsible for such conduct. However, in practice, the Court is often satisfied with the establishment of “human rights jurisdiction” and do not refer, at least not expressly, to the rules of attribution under the ARSIWA (Articles 4 to 11). Obviously, there is very little impact in simple and usual cases where a breach of human rights was committed by organs of a State. 14 2.2 Implicit or no reference to attribution Of more complex nature are the cases where the ECtHR deals with the acts of private individuals carrying out certain governmental functions. From the perspective of the case law 9 BESSON, S., Concurrent Responsibilities under the European Convention on Human Rights, in: VAN AAKEN, A., MOTOC, I. (eds.), The European Convention on Human Rights and General International Law , Oxford, OUP, 2018, p. 160. 10 See, e.g., Loizidou v. Turkey (Preliminary Objections), Appl. No. 15318/89, ECtHR, judgment, 23 March 1995; Al-Skeini and Others v. The United Kingdom [GC], Appl. No. 55721/07, ECtHR, judgment, 7 July 2011. 11 See, e.g., Banković and Others v. Belgium and Others [GC], Appl. No. 52207/99, ECtHR, decision, 12 December 2001. 12 See Banković , ibid., para. 57: “The Court must also take into account any relevant rules of international law when examining questions concerning its jurisdiction and, consequently, determine State responsibility in conformity with the governing principles of international law, although it must remain mindful of the Convention’s special character as a human rights treaty.” 13 See BESSON, S., op. cit., pp. 169-170; CRAWFORD, J. and KEENE, A., op. cit., p. 190: “Yet overlapping terminology and a lack of clarity in the Court’s reasoning has given rise to much academic debate and considerable confusion. The Court’s misunderstanding of the interactions between jurisdiction and attribution has the potential to threaten both the coherence of the secondary rules on State responsibility and the Court’s own jurisprudence.” 14 ARSIWA, Art. 4 (Conduct of organs of a State).
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