Human Rights Imperialists: The Extraterritorial Application of the European Convention on Human Rights

Description

To what extent do a state’s obligations under the European Convention on Human Rights apply beyond its territorial borders? Are soldiers deployed on overseas operations bound by the human rights commitments of their home state? What about other agents, like the police or diplomatic and consular services? If a state’s obligations do apply abroad, are they to be upheld in full or should they be tailored to the situation at hand? Few topics have posed more of a challenge for the European Court of Human Rights than this issue of the Convention’s extraterritorial application. This book provides a novel understanding on why this is by looking at the behaviour of those principally tasked with interpreting the treaty: the Strasbourg Court, state parties, and national courts. It offers a theory for how these communities operate: what motivates, constrains and ultimately shapes their interpretive practices. Through a detailed analysis of the jurisprudence, with a particular focus on British authorities and judges during and after the Iraq War (2003), the book provides an explanation of how the interpretation of extraterritorial obligations has developed over time and how these obligations are currently understood. Some have argued that it is imperialistic to apply the Convention extraterritorially. If this is the case, the focus of this book is on those ‘imperialists’ who have interpreted European human rights law to extend beyond a state’s borders, as it is with them that any lasting solution to the challenge will be found. Acknowledgements Contents Table of Cases Introduction I. The Extraterritorial Question II. The Strasbourg Approach III. The Claims of the Book IV. The Structure of the Book 1. Creating Human Rights ‘Jurisdiction’ I. Introduction II. The Drafting of Article 1 III. The Problem with 'Jurisdiction' IV. Creating Human Rights Jurisdiction V. Conclusion 2. Interpreting the European Convention on Human Rights I. Introduction II. The Convention's Interpretive Parties III. The 'Correct' Process of Interpretation IV. Interpretive Communities V. Article 1's Interpretive Communities VI. Conclusion 3. Incremental Normalisation: The Strasbourg Approach 1953–2001 I. Introduction II. The Point of Departure III. Judicial Minimalism IV. Enhanced Justification V. Consideration of Context VI. Conclusion 4. Deconstruction and Reconstruction: The European Court
of Human Rights 2001–10 I. Introduction II. Judicial Deconstruction: Banković v Belgium and Others III. Judicial Reconstruction IV. An Unsettled Community 5. The Contracting Parties: Competing for Meaning I. Introduction II. Applying the ECHR to Iraq III. Three Categories of State Arguments IV. State Acceptance of the Convention’s Extraterritorial
Application V. Conclusion 6. National Courts: The Systemisation of ‘Jurisdiction’ I. Introduction II. The Five Bases of Jurisdiction III. Conclusion 7. The European Court of Human Rights: Strategic (Re-)alignment I. Introduction II. Personal Jurisdiction: ‘State Agent Authority and Control’ III. Spatial Jurisdiction IV. Applying the Convention Abroad V. Conclusion: Temporary Stability 8. A Return to the Drawing Board I. Introduction II. Guiding Principles III. Conservative Options IV. Progressive Options V. A Proposal VI. The Communities VII. Conclusion Conclusion: Human Rights Imperialists Bibliography Index