Published in July 2018.
This module is a resource for lecturers
Extra-territorial application of the right to life
Determinations regarding whether the employment of lethal force violates the right to life is generally dependent upon satisfying a number of criteria. Legal complexities can arise where a State activity occurs outside of its own geographical area, with accompanying questions such as: do the protections afforded by the human right to life extend beyond the confines of the State's own territory? In other words, can international human rights law on the right to life be applied to the practice of one State on the territory of another.
Looking at the terminology utilised by the key international treaties, the wording of the relevant international and regional instruments differs. Whereas article 2(1) International Covenant on Civil and Political Rights (ICCPR) provides for a State's human rights obligations "within its territory", article 1 ECHR refers to the securing of rights "within [a State's] jurisdiction", and article 1 of the American Convention obliges States to respect and protect the rights of persons "subject to their jurisdiction". The African Charter, however, does not contain any reference to territorial or jurisdictional scope. Despite these provisions, a key issue is whether or not jurisdiction extends beyond national borders when it comes to say, instances of international terrorism. This is of particular relevance in relation to the counter-terrorism practice of some States which have purposefully removed individuals from their own territory in an attempt to also remove them from their legal jurisdiction and accompanying human rights obligations.
With respect to the extra-territorial application of human rights law, the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR) and the Human Rights Committee have all determined that their respective human rights instruments can be applied extraterritorially (Goldman, 2013, p. 106). It is interesting to note that the Human Rights Committee has come to this conclusion, despite the indicated wording of article 2(1) ICCPR. As Goldman noted, these "treaty bodies seem to agree that extraterritorial jurisdiction attaches in principle when a State exercises effective control over territory and/or persons".
Exploring this idea of effective control further, the Committee has for a long time interpreted article 2 in this manner. For example, in 1981 it determined that Uruguay was in violation of the Covenant when its agents were acting in the territory of Argentina and Brazil. In this instance, the Committee came to the conclusion that it "would be unconscionable to so interpret the [State's] responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations it could not perpetrate in its own territory" (CCPR/C/13/D/52/1979, para. 12.3). Further to this, in General Comment No. 31, the Committee observed that a State Party's duty to ensure rights to all persons within its territory includes "anyone within the power or effective control of the State Party, even if not situated in the territory of the State Party … This Principle applies to those within the power or effective control of the forces of the State Party acting outside its territory" (CCPR/C/21/Rev.1/Add.13). This perspective was confirmed by the International Court of Justice in the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory case. The Court was persuaded, after assessing the travaux preparatoires together with the practices of the Committee, that the Covenant's scope extends to "acts done by a State in the exercise of its jurisdiction outside its own territory" (ICJ, 2004, para. 111).
The ECtHR has, equally, long affirmed the extra-territorial scope of the ECHR. In Cyprus v Turkey, it was held that article 1 of the Convention results in the parties to the Convention having to secure the rights and freedoms to everyone within the State's jurisdiction, with this term not being limited to the territorial limits of the State. Critically, the "High contracting parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad" (1975). However, despite this initial clarity, as Wallace and Mallory have argued, more recent findings of the ECtHR have added a degree of uncertainty to the issue (Wallace and Mallory, 2016, p. 5).
Proving indicative of this confusion, in the case of Bankovic the ECtHR deviated from its approach in earlier case law. The Bankovic case concerned the right to life of victims of NATO aerial bombardments in Kosovo. The Court held that jurisdiction, under article 1 ECHR, was a territorial issue and that its previous findings were indicative of it recognizing extra-territorial acts as constituting an exercise of jurisdiction in exceptional circumstances. It stated that:
[A] failure to accept the extra-territorial jurisdiction of the respondent States would fall foul of the Convention's ordre public objective, which itself underlines the essentially regional vocation of the Convention system. (...) In short, the Convention is a multilateral treaty operating (…) in an essentially regional context and notably in the legal space (…) of the Contracting States. The [Federal Republic of Yugoslavia] clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights' protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention (para. 80).
This limitation would seem to restrict the jurisdiction of the Convention to the spatial limits of the Council of Europe. However, the Court then seemingly deviated from Bankovic in the cases of Öcalan and Issa. In Öcalan it was determined that Öcalan was under the "effective Turkish authority and therefore was brought within the 'jurisdiction' of that State for the purposes of article 1, even though Turkey exercised its authority outside its territory" (2003, para. 71). A similar interpretation, which resonated with the finding of the Human Rights Committee, was reached by the ECtHR in the case of Issa. The Court made it clear that it was of a perspective that accountability "stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on territory of another State, which it could not perpetrate in its own territory" (2004, para. 71). The Court then proceeded to come to a conclusion seemingly at odds with the findings of Bankovic. It stated that it did not exclude the "possibility that, as a consequence of this military action, the respondent State could be considered to have exercised, temporarily, effective control of a particular portion of the territory" (para. 74). This position was concretized by the Court when it reiterated in Al-Skeini that whenever a State's agents exercise control and authority over an individual outside of its territory, it is obligated under article 1 to ensure the protection of that individual's rights and freedoms (2011, para. 149).
Therefore, it would appear that the ECtHR has adopted a more liberal, encompassing approach, where a Contracting party meets certain criteria, such as exercising effective control over the geographical area where the alleged violation occurs. Comparative jurisprudence from the Inter-American system similarly indicates broad consensus regarding the extra-territorial effect of their respective human rights treaties. Initially, it should be noted that the majority of case law under the Inter-American system has emanated from the Commission, and not from the IACtHR, due to most cases involving the United States, which has yet to ratify the American Convention. In Coard et al v United States the Commission held that while jurisdiction most commonly refers to a person being within the territorial limits of a State, it may, under particular circumstances:
[R]efer to conduct with an extraterritorial locus where the person concerned is present in the territory of one State, but subject to the control of another State - usually through acts of the latter's agents abroad. In principle, the inquiry turns not on the presumed victim's nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of the person subject to its authority and control. (1999, para. 37).
Therefore, it is apparent that there is an evolving universalist understanding, that international, and regional human rights systems share a common approach to extraterritoriality.
One area of interest, in relation to the extraterritorial application of the right to life, is that of targeted killings. This issue raises a number of overlapping and complicated questions. Not only do targeted killings raise questions in relation to the human right to life, but they also create issues with regard to the use of force. Such extraterritorial use of force has commonly been justified by States in circumstances when terrorists have been harboured in the territory of another State that is not willing or able to effect their arrest. However, concerns have arisen where the use of targeted killings has been perceived as punitive in nature or as loosely defined preventative measures, rather than one of last resort to save innocent lives in immediate danger (Human Rights Committee CCPR/C/ISR/2001/2). In this way, it seems that States may exceptionally target individuals in other States where the threat is imminent, the principles of necessity and proportionality have been strictly observed, and the killing is an act of last resort. A further complicating factor is that a State must remain conscious of not infringing upon another State's sovereignty and territorial integrity contrary to Article 2(4) United Nations Charter. It is worth noting that, in relation to actions undertaken by States in combating terrorism, the Security Council, in 2001, clearly expressed that all such actions should be in compliance with States' obligations under international law, with this encompassing both international humanitarian law and international human rights law (UNSC Resolution 1373 (2001)). Therefore, this denotes that measures taken by States should comply with the human right to life, irrespective of whether that activity is undertaken at home, or abroad.