2.1. Jurisdiction as threshold criterion

Pro memoria, the extraterritoriality, or extraterritorial application, of the ECHR refers to the recognition (French for ‘securing’ in Article 1 ECHR) of ECHR rights by states parties and the identification of the corresponding duties on their part to individuals or groups of individuals situated outside their territory.Footnote ²⁴

The notion of extraterritoriality itself implies that the territorial application of human rights is the principle, but that there can be exceptions.Footnote ²⁵ Human rights ordinarily apply to subjects situated within the territorial boundaries of the state, but there are circumstances in which they can and should also apply outside those boundaries. It is important to note this reference to ‘can and should’ because the correlation between human rights and duties implies that the application of human rights not only is required in certain circumstances that need to be identified, but that it also has to be possible before it can be required (by reference to the ‘ought implies can’ principle).

To determine what the geographical scope of the ECHR amounts to and whether it can and should extend beyond the territorial boundaries of any state party, the only resort is to a non-geographical clause: Article 1 ECHR's threshold criterion for the application of the Convention.Footnote ²⁶ Article 1 ECHR reads as follows: ‘Obligation to respect human rights. The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’ (emphasis added).

The threshold or liminal criterion for the application of ECHR rights consists in state jurisdiction. It is an abstract threshold for the recognition of human rights in the first place. Without state jurisdiction over certain people, those people do not have human rights against that state and that state has no human rights duties towards those people. The relational nature of jurisdiction between a subject and the authority needs to be stressed, as it corresponds to the relational nature of human rights between a right-holder and a duty-bearer. Article 1 ECHR situates human rights within a relationship of jurisdiction and makes them dependent on it: jurisdiction both requires the recognition of human rights normatively (jurisdiction as normative trigger of human rights) and provides the conditions for the corresponding duties to be feasible (jurisdiction as practical condition of human rights). Jurisdiction amounts, therefore, at once to a normative threshold and a practical condition for human rights.Footnote ²⁷

Interestingly, the criterion for the ECHR to apply is not territorial at all, but functional:Footnote ²⁸ it pertains to the function of jurisdiction. Jurisdiction has territorial, temporal, and personal dimensions, of course, but those are mere consequences of jurisdiction. When territorial jurisdiction is mentioned, it should not therefore be understood to mean that jurisdiction is territorial in nature, but only that territory is used as shorthand for the function of jurisdiction. The same may be said about personal jurisdiction by reference to nationality and jurisdiction on nationals only.Footnote ²⁹ In practice, states parties’ jurisdiction was long exercised mostly within a state's territory and mostly on nationals, but things have gradually changed: states parties now exercise jurisdiction more and more beyond their domestic boundaries and often exercise jurisdiction at home on non-nationals as well. In short, the territorial, personal, and temporal scopes of the ECHR have all evolved with the evolution of jurisdiction itself.

It is important to realize this as the Convention could have had an application scope restricted to a given territory, to nationals, and to a specific period in time, the way this is done in certain domestic constitutions.Footnote ³⁰ Instead, its drafters chose to refer solely to the normative relationship that unites states parties to their subjects. We know, for instance, from the travaux préparatoires that the reference to ‘residents’ was intentionally eluded to avoid moving from the nationality restriction to another one, i.e., to that of residence only and hence to territory.Footnote ³¹

This functional approach to jurisdiction is actually testimony to a common feature in all post-1945 international human rights law: the idea of supplementing domestic human rights law by international human rights that would secure the minimal right to political membership and hence the right to have (human) rights in that political community and guarantee a minimal level of protection of international human rights in that context.Footnote ³² This difference in role (and not in content or structure of the rightsFootnote ³³) between international and domestic human rights law is most clearly visible in two features of international human rights law: its pressure on internal inclusion in the political community by granting human rights to non-nationals and also to non-residents, on the one hand, and its pressure on external inclusion in the political community by granting human rights to non-nationals and to non-residents who are situated abroad but are subject to state jurisdiction, on the other.Footnote ³⁴

In turn, this fundamental difference in function between international and domestic human rights law explains why some domestic practices on extraterritoriality have been slower to develop than international and European human rights ones.Footnote ³⁵ Importantly, however, this difference lies in the specifically international protection of the right to political membership, and not, as is often alleged, in the opposition between a political conception of human rights and a universal one.Footnote ³⁶ Both constitutional and international or European human rights are equally political and universal in the proposed account of human rights. What is universal about international and European human rights indeed is their guaranteeing the right to political membership in any given political community that exercises jurisdiction over the right-holders.

2.2. Jurisdiction qua political and legal authority

From the perspective of political theory, jurisdiction is best understood as de facto political and legal authority; that is to say, practical political and legal authority that is not yet legitimate or justified, but claims to be or, at least, is held to be legitimate by its subjects.Footnote ³⁷

Qua de facto authority, jurisdiction consists in effective, overall and normative power or control (whether it is prescriptive, executive, or adjudicative). It amounts to more than the mere exercise of coercion or power as a result: it also includes a normative dimension by reference to the imposition of reasons for action on its subjects and the corresponding appeal for compliance (e.g., through giving instructions).Footnote ³⁸ This is what distinguishes legal and political authority from other forms of authority.

In the case of state jurisdiction,Footnote ³⁹ what is at stake is de facto political and legal authority in a broad sense: any appeals for compliance by an institutional act or omission may be regarded as legal acts and omissions. This does not mean, of course, that those acts or omissions are necessarily lawful, but only that they stem from a necessarily lawfully organized institutional and constitutional framework, whether those institutions then act ultra vires or not. What matters indeed is that state agents exercise some kind of normative power with a claim to legitimacy, even if that claim ends up not being justified. Nor, conversely, does it mean that all state agents necessarily exercise jurisdiction: some are merely using coercion and their acts lack the required normative dimension. This distinction is particularly important in the case of the military, for instance, as not all military operations may be understood as the exercise of jurisdiction for lack of the normative element.

Including legal and political subjects into the scope of human rights-holders is one of the ways of legitimizing the exercise of normative power and of justifying the claim to legitimate authority that goes with the exercise of de facto authority and jurisdiction over them. Qua democratic states or, at least, democratizing states, ECHR states parties are not allowed to exercise their political and legal authority in ways that do not contribute to justifying the claim to legitimate authority that goes with the exercise of de facto authority. State jurisdiction works, therefore, as a normative trigger for the recognition of human rights and duties. At the same time, however, it provides the practical circumstances for them to be feasible rights and duties in practice: de facto legal and political authority amounts indeed to the institutional framework necessary to enact and protect human rights, and to identify and allocate the corresponding duties in practice.Footnote ⁴⁰

Of course, one may question this very link between human rights and political membership in the ECHR and reject the proposed understanding of both jurisdiction and human rights qua political relationship between the state party and its subjects. Various arguments may be put forward, however, in support of the political understanding of human rights, both in general and within the ECHR system.

To start with, human rights are normative relationships between a right-holder and a duty-bearer. But unlike other moral rights, they are systematic rights of all against all, and egalitarian ones at that, to the extent that all human rights subjects have the same rights against all and those rights are constitutive of equal moral status. Those features in turn explain human rights’ institutional nature and the fact that they require institutions to pool and mediate the duties equally, but also to identify, specify, and allocate them, and why only institutions can and should be human rights duty-bearers.Footnote ⁴¹ Another argument for the proposed political and institutional conception of human rights that stems from within the ECHR lies in the democratic underpinnings of all ECHR rights: democracy belongs to the interpretative values of the Convention.Footnote ⁴² It is, moreover, the only process through which Convention rights may be restricted in a justified way (e.g., the reference to the ‘necessity in a democratic society’ in Article 8(2) ECHR). This is not surprising given that human rights are constitutive of equal moral status, a status that is necessarily relational and which, in circumstances of equal and interdependent stakes between those subjected to law-making, calls for a democratic regime.

Importantly, one should note that the proposed understanding of jurisdiction corresponds to the one that applies both domestically and extraterritorially. The Convention has one single threshold criterion whether it applies territorially or extraterritorially. This is actually how one should understand statements of the European Court in Issa, but also in Banković or Al-Skeini that draw analogies from the circumstances that apply in a state party's territory to those that apply outside its territory.Footnote ⁴³ There are no reasons, in other words, why the notion of jurisdiction should be conceived differently depending on whether it applies inside or outside the territory of a state party. On the contrary, evidence from Article 1 ECHR and the Court's case law points to a single threshold in both sets of circumstances.

2.3. Jurisdiction and other related notions

State jurisdiction for the purpose of the ECHR ought to be carefully delineated from other understandings of jurisdiction, but also from other connected notions like attribution and capability. Those distinctions are important when considering how to assess state jurisdiction in proceedings before the European Court and in the Court's decisions: among the admissibility requirements or the merits, and, among either of those, at what stage in the procedure exactly.Footnote ⁴⁴

First of all, state jurisdiction is not about judicial jurisdiction. It is not about the ECtHR's ratione personae or ratione loci jurisdiction.Footnote ⁴⁵ Nor is it about domestic courts’ jurisdiction qua way of exercising state jurisdiction.Footnote ⁴⁶

Of course, state and judicial jurisdiction are related:Footnote ⁴⁷ the ECtHR's jurisdiction is a consequence of state jurisdiction,Footnote ⁴⁸ on the one hand, and domestic courts’ jurisdiction is a case of exercise of state jurisdiction,Footnote ⁴⁹ on the other. However, they need to be clearly delineated as distinct steps in the reasoning to avoid many of the conflations one observes in practice. This is particularly important when discussing issues of comity towards the executive or the question of the margin of appreciation, as those pertain only to judicial jurisdiction over extraterritorial matters and not directly to state jurisdiction itself.

Second, state jurisdiction is not about attribution in the context of the determination of responsibility. Attribution of certain acts to a public institution and state agents, and, more generally, responsibility, only come later once the state's duties have arisen in the first place and have been violated.Footnote ⁵⁰ Without jurisdiction, there are no human rights applicable and hence no duties, and there can be no acts or omissions that would violate those duties that can be attributed to a state and a fortiori no potential responsibility of the state for violating those duties later on.

Of course, the practice refers to ‘effective control’ as one of the criteria of attribution of the acts of individual agents to states parties.Footnote ⁵¹ This conceptual resemblance is actually a source of confusion that explains why attribution and jurisdiction are often conflated. True, often in order to assess jurisdiction, the link between the acts or omissions at stake and state agents needs to be assessed at once and at the same time, hence the difficulty in keeping them apart. This would be the case, for instance, in the context of assessing whether there is state jurisdiction when de facto organs act or when the acts of state agents need to be delineated from those of an international organization they work for: in those circumstances, attribution to the state is also a condition of jurisdiction. Some authors therefore regard jurisdiction and attribution as joint steps in the ex post reconstruction of the legal situation,Footnote ⁵² but this should not obfuscate their conceptual distinctiveness ex ante.

Finally, state jurisdiction is not merely about feasibility or capability. Some authors, however, regard jurisdiction as the mere capability to respect human rights. For them, if a human rights violation occurs, there was capability to respect human rights and hence jurisdiction.Footnote ⁵³

Of course, the feasibility of duties is part of their concrete requirements (following the principle ‘ought implies can’) and a condition of their existence. This is also clear from the ECtHR's case law on the identification of positive duties and their allocation to states parties. However, that very question of the concrete feasibility of duties only arises once jurisdiction has been established and the abstract rights recognized. There can be no human rights duties without human rights, and the existence of human rights depends on jurisdiction in the first place. Jurisdiction cannot therefore be directly equated with the feasibility of human rights duties.

True, the question of jurisdiction arises when assessing the general and abstract feasibility of human rights (and, accordingly, of duties). As I explained before, jurisdiction is not only a normative precondition for the recognition of human rights, but also a practical requirement of their feasibility: institutions have to be in place and exercising effective overall normative power for human rights to be protected. Then, however, jurisdiction merely becomes one of the elements of the assessment of the abstract feasibility of human rights.

2.4. Jurisdiction under domestic and international law

By definition, state jurisdiction qua de facto legal and political authority is jurisdiction under domestic law. This should be understood in a broad sense: state institutions and agents are indeed creatures of domestic law. This does not mean, of course, that their acts and omissions themselves are lawful, but only that they stem from a necessarily lawfully organized institutional and constitutional framework, whether state agents act ultra vires or not in practice.

Importantly, what matters for state jurisdiction is domestic-law jurisdiction, therefore, and not jurisdiction in international law. State jurisdiction may indeed not always be exercised lawfully from the perspective of international law. It may, of course, but it need not be. It suffices here to contrast the intervention of a state into the territory of another state by state consent against military occupation without state consent: while both may trigger human rights protection when there is state jurisdiction according to that state's law, the latter is clearly unlawful from an international-law perspective.

Domestic law's and international law's jurisdiction are not coextensive, therefore, but the former includes the latter.Footnote ⁵⁴ Indeed, jurisdiction under international law is the competence of each state to prescribe, enforce, and adjudicate, primarily on its territory, but also in exceptional cases outside the latter: e.g., on aircraft and ships, by embassies and consulates or by invitation to do so.Footnote ⁵⁵ International law on jurisdiction is not therefore about defining state jurisdiction in the first place, but depends on its existence and regulates some of its transnational and international implications. It protects a division of labour between territorial states and their respective jurisdiction, on the one hand, and organizes their coexistence when their jurisdiction exceptionally overlaps in extraterritorial circumstances by authorizing it in certain cases, on the other. The function of jurisdiction under international law is very different from that of jurisdiction qua threshold criterion for the applicability of international human rights law, as a result.

This distinction between the international lawfulness of state jurisdiction and the existence of state jurisdiction based on domestic law actually confirms how jurisdiction differs from sovereignty: the former corresponds to the international- law title and right to exercise domestic jurisdiction. This in turn explains why state jurisdiction is not always exclusive; it claims to be exclusive and actually is when it is justified, but it need not be as a matter of fact. And this is why two states may exercise jurisdiction at the same time.Footnote ⁵⁶

What this means in the ECHR context is that neither the critiques of the ECtHR's decision in Banković Footnote ⁵⁷ nor the Banković decision itselfFootnote ⁵⁸ were right in the end: the state jurisdiction at stake in Article 1 ECHR is clearly a matter of law, but it is a matter of domestic law and not of international law, hence the confusion in the literature between state jurisdiction being a matter of law and it being a matter of international law.Footnote ⁵⁹ This confusion is reinforced by the opposition in the case law of the Court between de jure control (by reference to international law only) and de facto control, and, as to the former, by reference to the lawfulness of the act or omission only.Footnote ⁶⁰ Of course, when domestic-law jurisdiction is exercised outside domestic boundaries, it may sometimes overlap with jurisdiction under international law, albeit not necessarily. Domestic- and international-law jurisdiction are not completely distinct, and the Court in Banković was right on this count, but nor are they entirely coextensive.Footnote ⁶¹ They necessarily overlap to the extent that domestic law's state jurisdiction is the object of jurisdiction under international law. The former includes the latter, but also cases of unlawful exercise of state jurisdiction under international law.

Interestingly, from the perspective of human rights, the sole difference between those cases of lawful and unlawful jurisdiction under international law is one of authorization. The internationally lawful nature of a given exercise of domestic-law jurisdiction therefore provides a confirmation of its existence by enhancing its authority and adding a new layer of legitimacy; this explains why the categories of extraterritorial jurisdiction under international law constitute ready cases of state jurisdiction that can be taken up by the European Court's case law. It also explains, as I will argue below, why, in cases of internationally lawful jurisdiction, a presumption of jurisdiction and other facilitated evidence mechanisms are used in the case law, and not in the other cases. Time has come, therefore, to turn to the assessment of the existence of jurisdiction in practice.

3.1. Elements of jurisdiction

Based on the notion of jurisdiction qua de facto political and legal authority introduced and adopted previously, one may identify three constitutive elements of jurisdiction: (i) effective power, (ii) overall control, and (iii) normative guidance.

In short, to qualify as jurisdiction, state control should be effective, overall, and normative. First of all, the state's power should be effective and exercised, and not merely claimed. Second, it should be exercised over a large number of interdependent stakes, and not one time only and over a single matter only. Interestingly, the interdependence of stakes is one of the conditions of political membership, and when those stakes are also equal, a condition of democratic membership.Footnote ⁶³ Finally, it should be exercised in a normative fashion so as to give reasons for action, and not as mere coercion.

Interestingly, all three elements of the proposed understanding of jurisdiction may also be found in the ECtHR's case law following Banković. Generally, the reference to ‘authority’ has been omnipresent in the case law about jurisdiction, even if it is usually juxtaposed to that of ‘control’Footnote ⁶⁴ and sometimes wrongly interpreted by authors as being interchangeable with the latter.Footnote ⁶⁵ Importantly, in Al-Skeini, categories of jurisdiction were extensively reorganized and clarified, thus promising a fresh start in the Court's case law on extraterritoriality. At the same time, of course, some of the constitutive elements of the various categories of jurisdiction were also fused and recombined in that decision.Footnote ⁶⁶ In what follows, and for the sake of clarity, however, I will refer to the regime identified in Al-Skeini as the most elaborate to date in the Court's case law and as the relevant one, and will discuss its differences from previous decisions when necessary.Footnote ⁶⁷

To start with, the ECtHR's case law endorses the first element of ‘effective control’, and this throughout the various phases of the notion's evolution since Loizidou. Effective control is usually described as matter of fact that can be assessed as such.Footnote ⁶⁸ The second element of control over a broad range of interdependent issues has been less present in the case law. It was, however, used in Loizidou where the Court referred to ‘effective overall control’ over a foreign territory.Footnote ⁶⁹ Curiously, that locution disappeared from the Court's formula in Al-Skeini,Footnote ⁷⁰ most probably due to the focus on personal control in the recent case law. One may, however, assume that by excluding instantaneous and singular exercises of power from counting as jurisdiction, an approach that was not overruled in Al-Skeini, the Banković decision confirmed the requirement of overall control.Footnote ⁷¹

Finally, the normative-guidance element of authority is also present in the Court's case law. One may find it in both Banković and Al-Skeini, albeit under the following formula: the ‘exercise of some or all of the public powers normally to be exercised by a sovereign government’.Footnote ⁷² While in Banković the normative element was used in the context of territorial control only,Footnote ⁷³ it was no longer mentioned in that context in Al-Skeini, but used by the Court in that case as an additional condition to qualify state jurisdiction based on personal authority and control (as a departure from Issa, as a result).Footnote ⁷⁴ Of course, it was mentioned not only under the first of the criteria of personal control in Al-Skeini,Footnote ⁷⁵ but also in the discussion of the facts of the case themselves where it was also applied to the third criterion of personal control.Footnote ⁷⁶ This is even more interesting as this concern for normative guidance in state jurisdiction was actually articulated by the UK Supreme Court in its Al-Skeini judgment when considering whether the UK was handling the equivalent to a civil administration on the ground, albeit leading to a different conclusion than the one the ECtHR embraced in the end.Footnote ⁷⁷

One may safely argue on all those grounds that, besides effective overall control, normative guidance has become a third constitutive element to be examined by the Court when assessing whether a given act or omission falls within the jurisdiction of a state party.Footnote ⁷⁸ Regrettably, many authors still refer to jurisdiction merely as the actual exercise of control,Footnote ⁷⁹ thus eluding the normative dimension of authority in jurisdiction. One ground for this conclusion may be that the criteria developed by the ECtHR for assessing the existence of jurisdiction have focused mostly on ‘control’, whether of a territorial or personal type.Footnote ⁸⁰ True, the elements that qualify that control, i.e., effectiveness, overall nature, and normativity, and turn it into de facto legal and political authority and jurisdiction, albeit present in Banković and again in Al-Skeini, appear less prominently and systematically in the Court's reasoning. This should not make us forget the other constitutive elements of authority when defining and using those criteria, however, and in particular its normative dimension.

Interestingly, the focus on effective overall control only, and the omission of the normative element of jurisdiction when assessing whether human rights should apply, is reminiscent of the test used in democratic theory to know to whom domestic democratic decisions should apply and whom it should include beyond those residing within the polity's territorial borders. Democratic theorists usually oppose the ‘all-affected principle’ that focuses on affectedness only, on the one hand, to the ‘all-subjected principle’Footnote ⁸¹ that also requires actual normative subjectedness and not only affectedness, on the other.Footnote ⁸² Again, therefore, the parallel evolution of human rights and democracy or citizenship, emphasized earlier in the article, may be observed in this context as well.

3.2. Types of jurisdiction

The existence of state jurisdiction is not easy to assess in practice, and criteria or shorthands are needed. The criteria for assessing the existence of state jurisdiction or de facto political and legal authority can vary. They correspond to types of control, and hence to types of jurisdiction in practice.

Territorial control is one of them, but there are others as well, such as personal control in the ECtHR's case law and other international human rights practices.Footnote ⁸³ Those two types of jurisdiction are also sometimes referred to as ‘models of jurisdiction’ in the literature.Footnote ⁸⁴

First of all, territorial control. The ECtHR's practice identifies territory or the ‘effective control over an area’ as the main shorthand for jurisdiction: jurisdiction over territory is indeed an indirect and general form of jurisdiction over people. This is not a surprise given how political and legal authority has always been exercised and that the territorial state is the primary building block of the international order. Interestingly, this corresponds to the use that is being made of territory to define the boundaries of the democratic people as well.

Of course, jurisdiction may be exercised not only on official territory, where it is presumed by international law, as we will see, but also on foreign territory. The latter may be lawful, on invitation, for instance, (i) or unlawful as in the case of occupation without state consent, either by military force or through a local administration (ii).Footnote ⁸⁵

Second, personal control. There are also cases in the ECtHR's practice where state jurisdiction is recognized without territorial control and merely by reference to direct personal control, i.e., the effective overall normative power over people. This type of jurisdiction is referred to by authors as personal to distinguish it from territorial jurisdiction.Footnote ⁸⁶

To qualify as state jurisdiction abroad, personal control may be lawful or unlawful from the perspective of international law. Lawful personal control may be exercised through diplomats and consuls (i);Footnote ⁸⁷ through state agents, including the military, by invitation (ii);Footnote ⁸⁸ and through other state agents, including the military, in official ships, aircraft, or buildings (iii).Footnote ⁸⁹ The same applies to unlawful personal control by those various state agents in various places.

Note that the personal and territorial types of jurisdiction should be seen as complementary and not as alternatives, however: state jurisdiction is always personal, indeed, even if it is sometimes presumed by reference to territorial control and hence to indirect or general control over the persons on that territory.Footnote ⁹⁰ This probably explains why the Court refers to personal control as ‘state agent authority and control’ in Al-Skeini,Footnote ⁹¹ although it is difficult to imagine jurisdiction not being exercised by state agents or, at least, not attributable to state agents. Some authors have preferred to refer to personal jurisdiction as functional jurisdiction as a result.Footnote ⁹² However, this assumes that territorial jurisdiction is not functional, and hence not about exercising the function of jurisdiction, which is blatantly wrong. Contrary to what is often assumed and as I explained before, there is no such thing as ‘territorial jurisdiction’ strictly speaking; it is merely personal control exercised through overall effective control over a given territory, whether on the state's official territory or outside that official territory. Jurisdiction is a function that is exercised either through direct personal control, or through territorial control, and personal and territorial jurisdiction are merely types of jurisdiction as a result.

Importantly, it is more difficult to provide evidence of personal control than of territorial control. I will discuss this below. For the time being, it suffices to say that the existence of all three constitutive elements of jurisdiction should be assessed in each case, and not merely effective control or power whether territorial or personal. Indeed, military occupation with effective control over a territory need not imply jurisdiction, because it lacks, for instance, the normative element of reason-giving and appeal for compliance.Footnote ⁹³ Another example may be effective personal control by troops without, however, any normative appeal besides the use of coercion. Potential confusions about this arise from the interchangeable use of territorial or personal ‘control’ and ‘jurisdiction’ in the descriptions of the model by authors and even by the Court itself, whereas jurisdiction is always personal, and what changes is the criterion for assessing the way it is exercised and hence the type of control and not the elements qualifying that control.

3.3. Evidence of jurisdiction

In order to understand how the existence of state jurisdiction is to be established in a procedure before the European Court, one may distinguish between the presumption of jurisdiction, first, and its general or individual establishment when it is not presumed, second.

First of all, the presumption of jurisdiction. Jurisdiction is presumed over people situated on the official territory of the state party.Footnote ⁹⁴ This presumption stems from international law and the international division of labour between territorial states that entrenches their domestic-law jurisdiction on that territory. Importantly, however, this presumption has to be rebuttable (with respect to either element of jurisdiction), especially if another state exercises full jurisdiction on the state's territory:Footnote ⁹⁵ this is the consequence of jurisdiction being essentially personal and only being territorial by shorthand for personal control.Footnote ⁹⁶

An interesting question is whether this presumption should be extended to occupied territories, whether they are lawfully occupied by invitation of the territorial state or unlawfully occupied. If jurisdiction under international law is about co-ordinating and hence facilitating international relations when jurisdiction is exercised beyond borders, it would seem that lawful occupation could well also trigger a presumption of jurisdiction or, at least, some form of facilitated evidence mechanism.Footnote ⁹⁷ International law recognizes a specific exercise of extraterritorial jurisdiction as lawful, and hence contributes to its normative claim to legitimate authority and accordingly to the corresponding expectation that this will trigger human rights protection in return. The main counterargument here would pertain to the right to self-determination of the population whose territory is occupied. It is important, therefore, to make sure that that right can be exercised and that the presumption of jurisdiction, if it is recognized, ceases as soon as that right is exercised.Footnote ⁹⁸

Second, the establishment of jurisdiction in cases where it is not presumed. Outside the domestic territory and outside the cases of lawful territorial control beyond the state's borders, jurisdiction has to be established in each concrete case by reference to its circumstances.Footnote ⁹⁹

Jurisdiction can be established either generally, as in the context of unlawful territorial control, or individually, as in the cases of lawful and unlawful personal control. Because territorial control is about indirect personal control, however, it may simply be established generally and will extend automatically to all individuals on the territory. By contrast, personal control has to be established individually in each case. Here again, one may wonder whether lawful personal control may not also qualify for a presumption or at least for a regime of facilitated evidence, by extension of the argument made earlier about lawful territorial control and by analogy to the presumption of jurisdiction applicable within the territorial boundaries of a state party.

The distinction between territorial presumption and personal evidence has been interpreted by some authors as a distinction between norms and facts.Footnote ¹⁰⁰ There seem to be traces of this facts-only approach to jurisdiction in the ECtHR's case law in Al-Skeini.Footnote ¹⁰¹ It is important not to forget, however, that while the exercise of effective, overall, and normative power in practice is a matter of fact that can be demonstrated or not, jurisdiction itself ought to retain its normative dimension of appealing to compliance and should not be reduced, for procedural reasons, to mere effective control or coercion.

4.1. The ECHR rights applicable

The right answer to the question of which ECHR rights are applicable extraterritorially, which was given by the ECtHR in Al-Skeini and allegedly as a reversal of the Banković decision, is that all the rights and duties applicable in the circumstances of the case may arise.Footnote ¹⁰³ This is a consequence of the indivisibility of ECHR rights in terms of justification, but also of realization.Footnote ¹⁰⁴ This means that there are no differences between ECHR rights applicable inside and outside a state's territory, provided it has jurisdiction.

Of course, the specific content of the specific rights and their corresponding duties may differ from those that apply domestically inside the state's territorial boundaries, due to the circumstances of the case.Footnote ¹⁰⁵ This is because, depending on the concrete threats, not all human rights will need protection in the concrete circumstances.Footnote ¹⁰⁶ This is also because duties always have to be specified in context, by reference to the concrete threats to the protected interest.

This distinction between the same abstract rights but different concrete duties is why authors are often misled in thinking that the rights applicable in extraterritorial circumstances differ in scope from those applicable in domestic ones. It is also probably why the ECtHR insisted in Al-Skeini on reversing the idea developed in Banković according to which ECHR rights could not be ‘tailored and divided’.Footnote ¹⁰⁷Again, however, it is not the ECHR rights that are tailored and divided: they are the same. But it is the specific duties that are bound to be different in the specific circumstances, and this whether we are talking of territorial or extraterritorial applicability.

4.2. The ECHR duties applicable

Negative and positive duties alike may arise from ECHR rights applicable abroad and at the same time. They are indeed necessary complements to each other: negative duties cannot be respected without positive duties to protect and to aid, and vice versa.Footnote ¹⁰⁸And this has actually been confirmed in the ECtHR's case law itself.Footnote ¹⁰⁹

Of course, effective overall control will be necessary for positive duties to arise in the first place,Footnote ¹¹⁰ but it will have to be assessed in the concrete circumstances. It is not something that can be excluded abstractly from the cases of extraterritorial jurisdiction, whether jurisdiction is exercised by territorial or personal control. This is why proposals that treat negative and positive duties differently in an abstract fashion cannot hold.Footnote ¹¹¹ The reasons for authors to put forward such proposals, however, may stem from the conflation between the specific-effective control requirement of positive duties and the more general jurisdiction requirement for the applicability of the ECHR itself.Footnote ¹¹²

Interesting difficulties arise in the context of ECHR positive duties abroad, especially in relation to the shared jurisdiction over those territories or people in practice.Footnote ¹¹³ In such cases, the fact that jurisdiction is shared must influence how much effective control either of the two states in jurisdiction has in practice over the persons of the rights-holders, and this even if their jurisdiction is presumed as that presumption may be rebutted in practice.

5.1. Human rights imperialism

The first critique often made of the extraterritoriality of human rights is that it enables domestic or regional human rights to apply to people who have not accepted those rights by ratifying the corresponding treaties, or contributed in any way to their elaboration.Footnote ¹¹⁴

This is a version of the classical critique of human rights parochialism and ought to be taken seriously. It cannot indeed simply be evaded by mere gestures at the universality of human rights:Footnote ¹¹⁵ that claim needs to be morally justified, indeed, and cultural and moral pluralism raise well-known problems for that claim.Footnote ¹¹⁶

In a nutshell, the critique can be defeated in two ways, however. The first one is to realize that human rights duties are never abstract and always need to be specified in context. As a result, they are necessarily culture-specific and do not lead to different moral orderings from the ones that apply locally. The second response is that for those human rights duties’ minima that are still imposed in a universal fashion, e.g., on the basis of previous case law of the ECtHR and its interpretive authority, institutional solutions need to be devised to take all conceptions into account. Thus, inclusion in the deliberation process over those rights may secure representativeness and alleviate the parochial bias to a certain extent. There are problems with the second argument in the extraterritoriality context, however, to the extent that ECtHR judges do not stem from outside the 47 states parties to the Council of Europe, and that domestic institutions and judges assigning the relevant ECHR duties do not include members of the population whose rights are at stake. More work is required, therefore, on the institutional side of the response to the human rights’ imperialism critique of extraterritoriality.

The concern was actually taken seriously early on in the ECtHR's case law on extraterritoriality. In response, for instance, the decisions in Banković and Loizidou referred to the idea of espace juridique européen.Footnote ¹¹⁷ That idea was since abandoned in Al-Skeini, however, and for good reasons pertaining to coherence with the notion of jurisdiction.Footnote ¹¹⁸ The questions relating to human rights’ imperialism outside the territory and to the decisions’ authority back home, however, have not disappeared and remain unbroached by the Court.

There is a second reading of the human rights’ imperialism critique, however, and one that comes closer to a critique of the democratic legitimacy of human rights. It raises well-known difficulties in international occupation law which I will address in that context below.

5.2. Human rights coherence

Even if one accepts the necessity to specify human rights duties in context, the reverse critique could be that this creates double standards: certain human rights duties would apply at home only, while others abroad, albeit pertaining to the same human rights.

This is an important critique that targets the egalitarian dimension of human rights within each state party's practice. There may be ways of accommodating the problem, however. One way of doing so may be for domestic judges to reason about those cases the way they would about territorial cases. The objection then, however, is whether domestic human rights case law ought to go through a potential process of levelling down based on the presumably lower standards of human rights protection applied outside the domestic boundaries due to the more limited threats and to the more limited institutional means available to fight back those threats.

5.3. Human rights pluralism

Yet another critique pertains to the way of reconciling potential conflicts between the human rights duties at stake, on the one hand, and domestic and international human rights duties, on the other.

Here again, the likelihood of those conflicts looks considerably smaller if one refers to the necessity of specifying the duties in context. However, as I mentioned before, one may not exclude conflicts between minimal interpretations of those respective duties by international or regional bodies and domestic courts. This could be particularly problematic if it is the local interpretation of other human rights or the same human rights that diverges. One way out would be to favour the most beneficial or human rights-protective interpretation (on the model of Article 53 ECHR). Again, however, this question is largely indeterminate in the human rights context.Footnote ¹¹⁹ Another solution would be to privilege the most democratic determination, i.e., usually the local one, based on some kind of human rights subsidiarity and emulation of an extraterritorial margin-of-appreciation model.Footnote ¹²⁰

5.4. International legal pluralism

The next critique pertains to the relationship between international human rights law and other international law norms and regimes, such as international humanitarian law, international refugee law and international criminal law. Among those, it is really the former that matters most for the critique given that it also generates duties for states and potentially conflicting ones.

One should start by saying that the question is not new and has been raised outside the extraterritoriality debate. Furthermore, it only has a limited scope as it arises in the context of armed conflicts. The common position on the issue is that both international humanitarian law and international human rights law apply concurrently. Of course, the lex specialis principle that commands considering international humanitarian law as specificFootnote ¹²¹ does not cut much ice in concrete circumstances of conflict.

It is important to note in any case that what triggers the application of those other regimes of international law is not a jurisdiction criterion, or at least not a domestic state jurisdiction one in the sense described in this article. The criterion of occupation in international humanitarian law, for instance, is one of mere power and effective control without any appeal to compliance. The latter may arise later and hence imply jurisdiction and the application of international human rights law, but this need not be the case. Regrettably, the ECtHR avoided the question of the relationship between international humanitarian law's thresholds of occupation and the ECHR's jurisdiction threshold in Al-Skeini, by subsuming the case to the personal type of jurisdiction and not to the territorial occupation type.Footnote ¹²²

5.5. Human right to self-determination

This critique is complementary to the human rights imperialism critique. It pertains to the right to self-determination of the population whose human rights are imported due to foreign jurisdiction. Such an import does not fit well with the democratic dimension of human rights according to which one should be the author and interpreter of one's own rights and duties.

The problem is well known within international occupation law. It is common in the context of transformative occupation where the occupying power may and ought to legislate, at least all the way up to transition and not afterwards, including in order to protect human rights.Footnote ¹²³ The difficulty is that while there may be dual jurisdiction exercised in practice, there cannot be dual democratic legitimacy and hence a dual source of legitimate human rights. Of course, one should stress that by analogy to the democratic-boundaries paradox,Footnote ¹²⁴ it is unlikely that the boundaries of human rights will be human rights-proof. One may therefore speak of a paradox of human rights boundaries when considering the ways in which the right to have rights is progressively secured following jurisdiction.

5.6. The erga omnes effect of judgments

This critique pertains to the kind of judicial reasoning and precedents that may arise from the ECtHR's case law in extraterritorial cases. The problem lies indeed in the justification of the potential interpretive authority or erga omnes effect of those precedents for the other 47 states parties’ authorities. The Court's judgments’ interpretive authority is a contentious enough issue when it pertains to circumstances within the territorial boundaries of any of the 47 states parties.Footnote ¹²⁵

There are ways out of the critique, however. To start with, it is most likely that the Court's case law pertaining to extraterritorial circumstances will never reach the threshold of consensual minimum given its circumstance-specific nature. Of course, this does not apply to the criteria of control or the notion of jurisdiction itself developed by the Court, but only to the substance of ECHR duties recognized in extraterritorial circumstances. At the same time, however, creating a two-speed system within the ECtHR's case law may not actually be the best of solution at a time of deep crisis of the Strasbourg system. It is indeed a matter of credibility of the system that it develops in a coherent and egalitarian fashion. This raises anew the question of double standards discussed before.

5.7. Judicial comity and margin of appreciation

This critique pertains to the importance of respecting comity and the separation of powers, and in particular the power of the executive, when adjudicating on extraterritorial matters, mostly because the questions are usually military in nature.

This is clearly an important point when discussing extraterritoriality cases before domestic courts,Footnote ¹²⁶ but it looks very different from the perspective of the ECtHR. What would come closest would be the margin of appreciation of states parties in matters not yet covered by European consensus and hence by interpretive minima in the Court's case law.Footnote ¹²⁷ Extraterritorial matters are typically matters on which there is no European consensus yet, it seems, and it is highly unlikely that we should see a corpus of precedents arise from the Court's case law on those issues. The margin of appreciation is therefore likely to remain solidly in place.