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MindMap Gallery Territorial reach of the ECHR ( last class)
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Territorial reach of the ECHR ( last class)
The European Convention on Human Rights (ECHR) is an international treaty that aims to protect and uphold fundamental human rights and freedoms across Europe. Understanding the territorial reach of the ECHR is crucial for comprehending the extent to which individuals and states are bound by its provisions. This mind map explores the territorial reach of the ECHR, delving into the principles and mechanisms that determine its applicability in different contexts. From the concept of jurisdiction and the role of state parties to the extraterritorial application of human rights, this mind map provides a comprehensive overview of the territorial scope of the ECHR.
Edited at 2022-12-19 11:37:51- Territorial reach of the ECHR ( last class)
The European Convention on Human Rights (ECHR) is an international treaty that aims to protect and uphold fundamental human rights and freedoms across Europe. Understanding the territorial reach of the ECHR is crucial for comprehending the extent to which individuals and states are bound by its provisions. This mind map explores the territorial reach of the ECHR, delving into the principles and mechanisms that determine its applicability in different contexts. From the concept of jurisdiction and the role of state parties to the extraterritorial application of human rights, this mind map provides a comprehensive overview of the territorial scope of the ECHR.
- General principles ECHR
The European Convention on Human Rights (ECHR) is a significant international treaty that safeguards fundamental human rights and freedoms across Europe. Embedded within the ECHR are a set of general principles that underpin its interpretation and application. These general principles serve as guiding principles for the protection of human rights and provide a framework for the implementation of the Convention. This mind map explores the general principles of the ECHR, delving into their significance and the impact they have on the interpretation of specific rights and obligations. From the principle of subsidiarity and the margin of appreciation to the principle of non-discrimination and the prohibition of torture, this mind map provides a comprehensive overview of the general principles that shape the ECHR.
- Article 3 suite
This is a clear mind map of Section 3, mainly illustrating prison conditions, domestic violence, and more. Each content area has several levels of further explanation. The mind map meticulously outlines the multidimensional impact of social issues; for instance, prison conditions encompass not only physical facilities and management systems but also prisoners' mental health and rehabilitation education. The domestic violence section expands from legal sanctions, psychological counseling, to social support, offering comprehensive prevention and intervention measures. The map aims to provide an integrated perspective to help professionals and the public better understand and address these pressing social issues.
Territorial reach of the ECHR ( last class)
- Territorial reach of the ECHR ( last class)
The European Convention on Human Rights (ECHR) is an international treaty that aims to protect and uphold fundamental human rights and freedoms across Europe. Understanding the territorial reach of the ECHR is crucial for comprehending the extent to which individuals and states are bound by its provisions. This mind map explores the territorial reach of the ECHR, delving into the principles and mechanisms that determine its applicability in different contexts. From the concept of jurisdiction and the role of state parties to the extraterritorial application of human rights, this mind map provides a comprehensive overview of the territorial scope of the ECHR.
- General principles ECHR
The European Convention on Human Rights (ECHR) is a significant international treaty that safeguards fundamental human rights and freedoms across Europe. Embedded within the ECHR are a set of general principles that underpin its interpretation and application. These general principles serve as guiding principles for the protection of human rights and provide a framework for the implementation of the Convention. This mind map explores the general principles of the ECHR, delving into their significance and the impact they have on the interpretation of specific rights and obligations. From the principle of subsidiarity and the margin of appreciation to the principle of non-discrimination and the prohibition of torture, this mind map provides a comprehensive overview of the general principles that shape the ECHR.
- Article 3 suite
This is a clear mind map of Section 3, mainly illustrating prison conditions, domestic violence, and more. Each content area has several levels of further explanation. The mind map meticulously outlines the multidimensional impact of social issues; for instance, prison conditions encompass not only physical facilities and management systems but also prisoners' mental health and rehabilitation education. The domestic violence section expands from legal sanctions, psychological counseling, to social support, offering comprehensive prevention and intervention measures. The map aims to provide an integrated perspective to help professionals and the public better understand and address these pressing social issues.
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- Outline
Territorial reach of the ECHR
What about the situations where there is less than effective control ?
Bankovic
Air strike by the NATO to damage the infrastructure
RTS bombed : 16 individuals dead, 18 casualties
RTS surivivors and relatives wish to bring a claim: right to life, freedom of expression
To strasbourg ? = Article 2 and 10 ECHR
Legal complications
nato action = can you complain against an IO ? or against its Member States ?
USA and Canada involved = they are not HCP
Complaint against ALL European NATO member States
The member states argument : the Victims were never "withtin our jurisdiction"
it was just air strikes
Lawson's argument : the more control a HCP have, the more broad their scope of obligaitons under ECHR should be
Answer of the Court
The court establish that the Article 1 does not provide any support for the applicant's suggestion that the positive obligation in Article 1 to secure "the rights and freedoms defined in Section 1" can be divided and tailored in accordance with the particular cirucmstances of the extra-territorial act in question
The Convention was not designed to be applied throughout the World; even in respect of te conduct of Contracting State
Co,mment of president Wildhaber (2002) = States governed by the Rule of law should be able to protect themselves against terrorism and human rights law must be able to accomate this need (9/11 influence)
On Bankovic; Wildhaber adds : The convention was never intended to cure all the planet"s ills; we must not lose sight of the practical effect that can be given to those rights.
overseas operations of the ECHR HCP
Lybie ,Iraq
Matter of Human rights law ?
Geneva Convention of 1949 (Lex speciales)
Why we dont leave this to the Interanitonla Human rights law
Probem is that there is not court that can not issue binding decisions
No international safety net provided by the ICRC
They heal the wounded, not judge the criminals
Article 15 ( derogations)
"in time of war, HCP may derogate from their obligations under the ECHR"
KEY PROVISION (ARTICLE 1)
"The HCP shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention"
not to everyone full stop
too ambitious
Not to everyone withtin "their territories"
Within their jurisdiction
jurisdiction = the capacity to say the law.
But doe it have the same meaning in the ECHR ?
Loizidou Cyprus v Turkey
CYPRUS : mixed population, turkish speaking and greek speaking
Tureky felt that cyprus could give up its independancy to Greece so turkey intervened and occupy Cyprus with turkish Army
Loizidou become an internally displaced person
Turkey dont control the whole island thanks to the UN buffer zone
She fled in the south but her house is in the north and everytime whe she tries to reach the north she is stopped by Turkish soldiers
She goes to Strasbourg to complain
Complaint : Article 1 of protocol 1; Article 8 ECHR (right to property)
Against whom : Republic of Cyprus ❌ (they agree that the situaiton is not good) ? TRNC ? ❌ (not a real state) Turkey ✅ = YES
2 preliminary objections of Turkey in the preliminary ruling
§1 Loizidou is not within their jurisdiction, so no duty on the part of Turkey to secure any of her rights under ECHR
Raises the question of what jurisdiction really means ??
Substantive argument =
§2 Right to individual petition and competence of Court ONLY "partially accepted" = So Turkey cannot be held accountable
Procedural argument =
Answer of the court
Turkey may be responsible for violation of property rights, "the concept of 'jurisdiction' is not restricted to the national territory of the HCP
"the responsability of a HCP may also arise when it exercise effective control of an area outside its national territory
The obligation to to secure the rights and freddomes of the concention derives from the fact of such control
Turkey have an effective control over Northern Cyprus and therefore must ensure the entire range of substantive rights set out in the Convention (effective overall control over a territory = obligation to ensure the entire range of susbstantive rights set out in the Convention)
If such a solution would not have been found; there would have been a huge VACUUM in the system of protection of Human Rights
Loizidou confirmed: ECHR applies to "frozen conflicts"
Chiragov v. Armenia
Ilascu v. Moldova
Loizidou confirmed
Al-Sadoon & Mufdhi v. UK (2009) Facts : Twpo iraqui detained in British-run detention in Iraq and about to be handed over to Iraquis authorities; they face death penalty
ECtHR : given the total and exclusive control exercised by the united kingdom authorities over the premises in question. the Individuals detained there, including the applicants, where within the UK's jurisdiciton.
Turkey cannot accept supervision mechanism "à la carte"
The effectiveness of the convention system relies on the special character of the convention as a treaty for the collective enforcment of human rights and fundamental freedoms
Convention can be seen as " a consittutional instrument of European Public order"
Summary
LIFE AFTER BANKOVIC the court is trying to redeem itself from its mistake in Bankovic
OCALAN v. Turkey (2003)
Directly after OCALAN had been handed over by the Kenyans official to the Turkish officiels th applicant was under effective turkish authority and was therefore brought within the jurisdiciton
The court considers that OCALAN distinguishess from BANKOVIC because he was forced to physically return to Turkeey and was subject to their authority and control following his arrest and return to Turkey
The court considers that the fact that he had been return to turkey was a relevant fact but what if he had been shot dead by turkish officials in Kenya ??
ISSA v. Turkey (2006)
Article 1 of the conevention cannot be interpeted so as to follow a State party to perpetrate vioolations of the Convention on the territory of another State, which is could not perpretrate on its own territory
What about bombing TV station??
Al-Skeini v. UK 2011; In this case the court tries to systematize its case)law on territorial scope of the Convention.
Facts =
applicants: relatives of six Iraqi citizens who died in Basra, Aug. Nov. 2003
Five died ‘in the streets’
Mr Mousa taken to military base in Basra, beaten to death
claim: right to life, Article 2 ECHR
UK COURTS decisions
The first five applicants were not whithin UK jurisidiction
Mr Moussa was within jurisdiction because he was arrested and taken to British military base (makes no sense imo)
ECHR decision
Court (GC)para. 131: territorial principle
Exception 1 = State agents authority and control ( diplomats; agents operating on foreign soil e.g Issa 'what is decisive is the exercise of physical power and control over the applicant", delegated powers by the foreign authorities
the State is under an obligation under Article 1 to secure to that individual to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. (Casuistic approach tht was declined in Bankovic is now accepted!)
Exception 2 = Effective control over an area (Loizidou)
the court understanding of the scope of ECHR obligations (see graph) - HCPs either have to ensure the entire range of substantive rights of the ECHR or dont have to ensure any rights at all = binary vision that is not taking into account the nuance of real life that is not black or white
A recipe for poroblems
Loisizidou v. turkey go slides x
Cases prior to Loizidou
OCALAN and ISSA
Declared admissisble so Turkey must be bound by the ECHR when operating in Kenya
In issa all the facts happenend in Iraq ( not HCP) but still declared admissible so the court must be compentent.
Stocké v. Germany
the obligation for HCPs under Article 1 to ensure rights to everyone in their juridiction extends to all persons under its actual authority and responsability; wether this authority is exercised on its own territory or abroad.
insofar as the acts affect such persons; the responsabilty of the state is engaged