Chapter

Human rights protection during extra-territorial military operations : perspectives at international and English law

Alexander Orakhelashvili

Research handbook on international conflict and security law : jus ad bellum, jus in bello and jus post bellum

Cheltenham ; Northampton : E. Elgar, 2013

p. 598-637

English

Alexander Orakhelashvili analyzes the international and English jurisprudence regarding the effect of human rights treaties during extra-territorial military operations. The author traces the evolution of jurisprudence relating to Article 1 of the European Convention on Human Rights (ECHR). He concludes that Article 1 focuses on jurisdiction, not territory, which indicates an inherent incorporation of an extra-territoriality element. The exercise of jurisdiction inherently arises from the exercise of a state’s authority through its agents. The extra-territorial element in Article 1 is to be given its ordinary meaning. Moreover, the author argues that ‘effective control’ is not necessary to activate Article 1, nor is Article 1 only meant to be applied regionally. The author then turns to an analysis of English approaches to the ECHR. He submits that the correct approach to the statutory effect of Article 1 is to focus on the parameters of parliamentary intention. He argues that English courts have a duty to follow the ECHR interpretation of the European Court of Human Rights. Most importantly, the author argues that the content and scope of the ECHR should be ascertained through regular methods of treaty interpretation, namely that jurisdiction should be given its ordinary and natural meaning. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]

• Research handbook on international conflict and security law : jus ad bellum, jus in bello and jus post bellum / Ed. by Nigel D. White, Christian Henderson