The Concept of Jurisdiction in Article 1 of the European Convention on Human Rights - Essay Example

? Discuss the concept of ‘jurisdiction’ in Article of the European Convention on Human Rights and its relation to ‘jurisdiction’ in public international law generally. Jurisdiction of a state connotes fundamentally the magnitude of each state’s privilege to administer its conduct or the outcomes of events. It is not a single concept, and a state jurisdiction may get different forms. Therefore, a state may control conduct through its laws, or it may, through its judiciary, control those variances which fall before them, whether emanating due to criminal or civil law. Else , a state may control the affairs by initiating administrative or executive action, which intrudes more pervasively on the happenings of events , as by implementing its laws or through the verdicts of its courts. Jurisdiction pertains to both the internal law of each state and in the international law. The jurisdiction in international law establishes the allowable limits of a state jurisdiction in the different forms it may assume, while the jurisdiction in internal law connotes the magnitude to which, and the style in which, the state, in reality, affirms its jurisdiction. In Lotus case, the PCIJ (Permanent Court of International Justice), while briefing that international law normally allows the states “a broad initiative” of discretion in the applicability of their laws, and the jurisdiction of their courts was restricted in some cases by prohibitive rules, and it was obligatory for a state that it should not cross its limits which international law emphasises upon its jurisdiction. It may be noted that the magnitude to which the jurisdiction is a matter of limits to the exercise of authority as the subject of jurisdiction may happen not only as regard to states but also in regard to other bodies, which exert authority globally like international organisations and multinational companies1. International Jurisdictional issues happen when a state either through its court proceedings or directly try to avow its power over circumstance, property or persons, which happen or arise in abroad. If such property or persons locate in abroad, the magnitude to which the state laws are deemed to apply extra-territorially or whether the exercise of the jurisdiction engrosses any violation of the rights of other states. It is to be observed that a state’s right to assert its jurisdiction depends upon its sovereignty. In Christina 2case, Lord Macmillan held that “it is an indispensable quality of the sovereignty of a state, as of all sovereign independent nations that it should have jurisdiction over all of its properties and individuals which lie or reside within its territorial borders both in criminal and civil cases happening within these limits. Jurisdiction also includes both the privilege to exercise it within the territories of a nation’s sovereignty and an obligation to acknowledge the same right of other states. The issue or complication happens when one nation tries to punish a criminal demeanour which another nation does not consider it as an offence. There are various kinds of jurisdictions, and we can analyse the same as under: Prescriptive Jurisdiction Authority to notify rules Enforcement Jurisdiction Authority to implement regulations Legislative Jurisdiction Authority of the state to enforce obligatory laws within its province. However, there are restrictions on the “legislative dominance “of a state as if it enacts a law which in not in line with international law, then it will make it accountable for the infringement of international law. However, a municipal court of a state has every right to give effect to its municipal law. Executive Jurisdiction The authority of a state to function within the territorial provinces of another state with prior sanction from such government. Judicial Jurisdiction The authority to municipal courts to administer cases where the foreign factor exists3. Article 1 of the European Human Rights Commission (herein after will be referred as ECHR) deals with the obligation to honour human rights. Article 1 of the ECHR states that “the High Contracting Parties shall safeguard to everybody inside their jurisdiction the freedom and privileges detailed in Section 1 of this Convention.” Article 1 emphasis that it is applicable to “everyone” provided they come “within the jurisdiction” of a Contracting State. Thus, one can understand from the wording of the Article 1 that it is the duty of the Contracting State to make sure that the privileges and freedoms that are mentioned in the ECHR have to be enjoyed by “everyone” without any limitation or bar whatsoever. As a result, the race, the age, nationality or capacity of the persons concerned is not material or not relevant for the determination of jurisdiction. In Lithgow v United Kingdom4, it was observed that as to Article 1 of the ECHR, it was obvious that majority of provisions of the Conventions, and its modus operandi where both non-nationals and nationals benefit from the safeguard measure ,but this does not keep out exclusions as far as this may be referred in a specific contour5. Whether the Convention is applicable to everyone within the “jurisdiction of the states?” In order to a convention to apply, Article 1 defines the association that must present between a member state and a person. The individual or person must come within the jurisdiction of the specific state. Nonetheless, the notion of the “jurisdiction “is not restricted to territorial capability: it applies to every scenario where an individual falls within the jurisdiction of a state. In Loizidou v Turkey, ECHR court made a detailed summary of the notion “Jurisdiction.” In this regard, the Court recollects that, despite Article 1 lays boundaries on the application of the Convention, the notion of “jurisdiction” under this proviso is not limited to the national province of the High Contracting Parties. As per this case law, for instance, the Court was of the view that expulsion or extradition of an individual may give rise to an issue under Article 3, and therefore, could make the state accountable under the Convention. It is to be noted that the same line of interpretation of jurisdiction had been made in the following cases also viz. Cruz Varas and Others v Sweden, Soering v UK, and Vilvarajah and others v UK. Further, the accountability of the Contracting Parties can be engaged due to the acts of the officials, whether carried out outside or inside national frontiers, which generate same impacts outside of their own province as held in Drozd and Janousek v France and Spain6 . Public International Law & Jurisdiction The body of the law that governs the relations between international organisations, states and occasionally, individuals is known as public international law. Under international law, only states were the bodies that exercised duties and rights under international law but now, United Nations, individuals and multinational companies have also gained duties and rights under international law7. In general, international law, there exists a concept known as “jurisdiction.” Jurisdiction under general international law is more concerned with regulations stipulating the specific scenarios where a state is lawfully allowed to employ its legal authority over a specific scenario like convicting its own citizens for offences committed in foreign countries. Jurisdiction in public international law ensures that concerns of foreign nations are also guaranteed for, and that sovereignty –footed assertions of jurisdictions by none of the states should unjustifiably intrude on the sovereignty of other States. Thus, the law of jurisdiction no doubt is one of the most ingredients and debatable fields of international law and in that it decides how far, ratione loci, the laws of a state must cover. Ensuring a nonviolent coexistence between countries through building jurisdictional fences which countries are not contemplated to cross, the law of jurisdictions is one of the founding stones of the classical international public law thereby functioning as a ‘negative law ‘of State coexistence8. The International Court of Justice (ICC) is the only international court which attempts to find solutions to the disputes between nations. “As per article 34.1”, only nations can be the parties in disputes before the ICC. ICC’s jurisdiction depends upon the consent of the nations, and thus the ICC’s jurisdiction rests upon on the will of the nations. ICC is deemed to have competent authority once the nations have acknowledged its jurisdiction over the disputes9. International law bars a nation from intruding in the sovereign functions of another nation without the consent of such a state. However, in case of the unlawful capture of offenders of foreign origin in the province of another nation, despite it infringes international law, is permitted in some scenarios as in some nations like Israel and USA, the law does not prohibit municipal courts from employing criminal jurisdiction over foreign nationals10. Finding solutions to international disputes through an arbitration process is an effort to infuse into the international system the rule of law. To achieve this purpose, PCIJ and ICJ have been established, which try to find solutions to inter-state disputes. Following is the illustrations of the inter-state arbitrations, particularly in territorial disputes like the Beagle Channel arbitration (Chile v Argentina) of 1978, Rann of Kutch arbitration (India-Pakistan) in 1968, and the Taba arbitration (Egypt v Israel) of 198811. In Bankovic v Belgium case which is about the NATO bombing of a television and a radio station in Belgrade as part and parcel of the wider campaign which then Yugoslavia government in 1999 termed it as to averting carnage in Kosovo. The ECHR in this case appeared to advocate that the meaning of “jurisdiction “in the ECHR mirrors the implication of that term in public international law generally12 whereas jurisdiction under ECHR did not go beyond outside territorial limits to the provinces not under the “ effective overall command “ of a state party13. In DPP v Doot (1973)14, there was a conviction for the conspiracy to import into UK cannabis. It was observed by the House of Lords that the English courts had the jurisdiction over the case despite the real conspiracy happened in abroad as the offence prolonged to happen in UK when the conspiracy was perused. The Lotus case (1927) offers important insight into the jurisdictional issues. There was a collision between a French ship and a Turkish ship on the high seas. Due to collision, the Turkish ship drowned and there were a large number of casualties of both passengers and crew members. The French ship was arrested, and the crew members of the French ship were convicted of manslaughter. The exercise of jurisdiction by Turkey was objected by France, and the case was referred to the PCIJ. It was argued by the Turkey that the ships on the high seas formed part of the province of the state whose flag they own. Hence, it was argued by the Turkey that jurisdiction can be exercised on the footage of the objective territorial norms, as the outcomes of the French action happened on Turkish province. The PCIJ gave its verdict in favour of Turkey. This case law proves that the onus is on the one who makes a dispute over jurisdiction to offer concrete corroboration of a rule limiting jurisdiction. As of now, if one wants to assert his jurisdiction, he must demonstrate a particular permissive rule of international law15. In Celiberti de Casariego v Uruguay and in Saldias de Lopez, UNHRC (United Nations Human Rights Commission) acknowledged the application of international human rights law extraterritorially. In Alejandre et al v Cuba, there was acknowledgement of jurisdiction over Cuban employment of conflicting force and infringement of right to life. In Salas and Others v United States, there was an acknowledgment of jurisdiction over US extraterritorial invasion in Panama. In Lopez case, there was acknowledgement of extraterritorial jurisdiction over torture and detention in Argentina. Jurisdictional Issues – ECHR v Public International Law In Bankovic case, it was held that ECHR rights did not apply extraterritorially to the provinces not under the command of a state party. ECHR court viewed that ECHR jurisdiction is mainly territorial, footing its verdict on the general norms of international law as supported by international legal experts. ECHR acknowledged three exceptions to be extraterritorial like nationality, flag and consular and diplomatic relations and viewed that these exemptions did not comprise jurisdiction over armed invasion or attacks against extraterritorial targets as the jurisdictional language in the ECHR is varying from that of jurisdictional language in the Geneva Conventions. The Article I of ECHR states that rights, and freedoms of all will be secured whereas the Article 1 of Geneva Convention expresses that the High Contracting Party shall undertake to honour and to ensure esteem for the contemporary Convention in all scenarios. Further, ECHR court wrongly turned down the lex specialis governing jurisdiction instituted by the traditional international law mirrored in Protocol I to the Geneva Conventions (Protocol1) which administers extraterritorial attacks. Moreover, the Bankovic verdict challenges the substantial case law developed both in the UN Human Rights Committee and in the Inter-American Commission on Human Rights that acknowledges jurisdiction on such extraterritorial invasion or attacks. For example , the UN Human Rights Committee in Celiberti de Casariego v Uruguay and in Saldias de Lopez v Uruguay and the Inter-American Commission on Human Rights in Salas and Others v United States and in Alejandre et al v Cuba acknowledged that the extraterritorial relevance to international Human Rights law. It is well founded in international law that an international instrument should be construed and employed within the aggregate structure of the international judicial structure in force at the juncture of interpretation. The critics, however, asserted that the ECHR Court had not done this and instead invented its own law. As a result, there have been contradictory international legal principles across both in the global and regional adjudicative systems and confusion on the part of the state over what international legal commitments will be inflicted in respect of a specific case . 16 In case where armed forces of a state are said to have infringed human rights outside the national territory, then the question of extra-territorial application of IHR arises. In this province, the international law establishes its flexibility. For instance, in Loizidou case, Turkey has lost its credence as regard to its occupation of North Cyprus, in Bankovic case, the NATO together with UK in ECHR system had a close escape as regards to the bombing of Serbia and in Illascu v Moldova case, Russia has been censured for its so-called occupation of part of Moldova, and Turkey was once again found to be accountable for infringement in neighbourhood provinces in Issa v Turkey. According to Loukis Loucaides, a leading judge of the Strasbourg Court, the Bankovic case has been observed as a major blow in an endeavour to accomplish the efficient promotion of and honour for human rights and with regard to the employment of any State activity within or outside their nation17. In Illascu and Others v Moldova and Russia, , ECHR Grand Chamber held that Russia extended massive military, political , economic and financial support to Transdniestria resulting in “ effective control” over the province and hence exercised de facto “jurisdiction” that falls within the purview of Article 1 of the Convention. The verdict given in Mathews v UK was claimed to be a landmark judgment in the shaping of jurisdiction of the ECHR as Article 1 of the ECHR had held to be applicable not only to direct enjoyment of authority at national level but also to the exercise of conveyed authorities by supranational organisations or international laws provided that Convention privileges prolonged to be secured. Thus, member nation’s accountability thus remains to be there even after such transfer18. Jurisdiction in international law is concerned with regulations stipulating the specific scenarios where a nation is legally allowed to employ its legal power over a specific scenario like prosecuting its own citizens for having committed offences in abroad. In Bankovic case, ECHR appeared to imply that the meaning of jurisdiction in the ECHR mirrors the meaning of that phrase in public international law typically. However, ECHR court took a different view in the Loizidou v Turkey case, where the presence of Turkey in Northern Cyprus amounted to exercise of jurisdiction stressing that such jurisdiction could survive on this footing despite the legality of exercise of control19. Conclusion Jurisdiction under Article 1 of ECHR emphasis that it is applicable to “everyone” provided they come “within the jurisdiction” of a Contracting State. It is to be noted that the jurisdiction of the courts was restricted in some cases by prohibitive rules, and it was obligatory for a state that it should not cross its limits which international law emphasises upon its jurisdiction. The issue or complication happens when one nation tries to punish a criminal demeanour which another nation does not consider it as an offence. In Loizidou v Turkey, expulsion or extradition of an individual may give rise to an issue under Article 3, and therefore, could make the state accountable under the Convention. A state is lawfully allowed to employ its legal authority over a specific scenario like convicting its own citizens for offences committed in foreign countries. Thus, the law of jurisdiction no doubt is one of the most ingredients and debatable fields of international law and in that it decides how far, ratione loci, the laws of a state must cover. Ensuring a nonviolent coexistence between countries through building jurisdictional fences which countries are not contemplated to cross, the law of jurisdictions is one of the founding stones of the classical international public law thereby functioning as a ‘negative law ‘of State coexistence. Bibliography Books Akehurst M, A Modern Introduction to International Law (Harper Collins Academic 1987) Amerasinghe C F, Jurisdiction of International Tribunals (Martinus Nijhoff Publishers 2003) Arnold R, International Humanitarian Law and Human Rights Law: Towards a New Merger (Brill 2008) Arnold R, International Humanitarian Law and Human Rights Law: Towards a New Merger (Brill 2008) Bowring B, The Degradation of the International Legal Order? The Rehabilitation of Law (Routledge 2008) Casanovas O & Rosa L, Unity and Pluralism in Public International Law (Martinus Nijhoff Publishers 2001) Dutertre G & Velde J V D, Yearbook of the European Convention on Human Rights (Martinus Nijhoff Publishers 2008) Hillier T, Sourcebook on Public International Law (Routledge Taylor and Francis Group) Kaczorowska A, Public International Law (Taylor & Francis 2010) Martin F, International Human Rights and Humanitarian Law: Treaties, Cases and Analysis: (Cambridge University Press 2006) Online Journals Kuhnert K, ‘Bospherous – Double Standards in European Human Rights Protection? Utrecht Law Review < http://www.utrechtlawreview.org/index.php/ulr/article/viewFile/31/31 >accessed 5 May 2012 Read More