THE EXTRATERRITOAL APPLICATION OF SELECTED HUMAN RIGHTS TRATISPDF电子书下载

Introduction 1

1. Origins of the Current Debate 1

2. Object and Method of the Present Investigation 4

3. Are States Bound By Human Rights Treaties When They Operate Abroad? 7

A. Main Arguments Supporting the Territorial Application of Human Rights Treaties 9

B. Main Arguments Supporting the Extraterritorial Application of Human Rights Treaties 12

Chapter 1: The International Covenant on Civil and Political Rights 15

Preliminary Considerations on the Interpretation of International Treaties 15

1. Wording and Origins 17

2. History of the Proceedings 20

A. Spatial Scope of the Covenant During the Initial Phase (1947-1948) 21

B. Relevant Developments During the Drafting Phase (1949-1954) 22

1. A Key Provision 23

2. Drafters' Main Focus of Concern: Guaranteeing Rights to Nationals and Aliens in a State Party's Territory 23

3. US Amendments to the Jurisdictional Clause 24

a. Analysis of the US Proposal to Include Reference to 'Territory' in the Jurisdictional Clause 27

4. French Text: 'Competence' Instead of 'Juridiction' 27

5. The 194th Meeting of the Commission on Human Rights (1950) 29

a. Protection of Nationals/Aliens Within/Outside a State Party's Territory 29

b. Military Occupation as an Exceptional Situation 31

c. Reference to the Reach of Penal Law 32

d. Nature of Rights and Possibility of Ensuring them Abroad 33

e. Different Phrasings Suggested for Article 2(1) 34

6. The Failed French Attempt to Delete Reference to 'Territory' 35

C. Relevant Developments During the Deliberation Phase (1954-1966) 37

Conclusion: Extraterritoriality in the Preparatory Work of the ICCPR 40

3. The Jurisdictional Clause of the ICCPR Interpreted by Monitoring Bodies 41

Preliminary Considerations 41

A. Quasi-Judicial Bodies: The Position of the Human Rights Committee 42

1. Views in Individual Communications 43

a. Petitions Brought by Persons Who Fled the Country Regarding Events Occurred in the Country 43

b. Passport Cases 45

c. Persons Kidnapped by State Agents Operating Abroad 49

2. General Comments 54

3. Concluding Observations 57

a. Military Occupation 58

b. Troops Operating Abroad in Situations Other than Military Occupation 64

c. The US Territorial Interpretation of the Covenant 66

B. Judicial Bodies: The Position of the International Court of Justice 77

1. Wall Advisory Opinion 77

2. Judgment in the Case of Armed Activities on the Territory of the Congo 81

C. Further International Human Rights Mechanisms: UN Special Procedures 85

Conclusion 89

Chapter 2: The Spatial Reach of the European Convention on Human Rights 93

Introduction 93

1. Wording and Origins of Article 1 ECHR 93

2. European Commission of Human Rights: Authority and Control Over Persons' 96

A. Cases Related to Diplomatic and Consular Authorities 96

B. Cases Involving Arrest or Detention of Persons Abroad 99

C. Further Exercise of Public Powers Abroad 100

D. Cases Involving the Presence of Troops Abroad 103

Conclusion 108

3. Cases Before the European Court of Human Rights 110

A. Cases before Bankovic 110

1. Control over Territory 110

2. Regular Exercise of Public Powers 115

3. Non-Refoulement Cases 119

Conclusion on the Vxe-Bankovic Jurisprudence 123

B. The Bankovic Case 125

1. Factual Background 125

2. Parties' Arguments 125

3. Decision by the Court 126

a. Recourse to the VCLT (1969) 127

1) Ordinary Meaning of Jurisdiction in Public International Law: Primarily Territorial 128

2) Subsequent State Practice 132

3) Confirmation of Results: Travaux Preparatoires 136

b. Recall of the Jurisprudence of the Court on Extraterritorial Jurisdiction 138

c. Courts Evaluation of the Case at Hand 140

1) Cause-and-Effect Notion of Jurisdiction 140

2) Rendering Reference to Jurisdiction in Article 1 Devoid of Any Purpose 142

3) Limited Airspace Control as Amounting to Jurisdiction: Comparison with the Soering Case 145

4) Comparable Treaty Provisions and Jurisprudence of Further Human Rights Bodies on the Subject 147

5) 'Ordre Public' Argument, Avoiding a Regrettable Vacuum and the Legal Space of the ECHR 147

6) Comparison with then Ongoing Cases on Similar Issues 149

7) Absence of a 'Jurisdictional Link' 149

8) Further Possible Non-Stated Reasons Influencing the Decision in Bankovic 150

9) Regional Character of the Convention 151

Conclusion on the Bankovic Case 160

C. First Cases After Bankovic 161

1. Control Over Persons 161

2. Control Over Territory 165

3. Control Over Persons and Control Over an Area 174

Conclusion on the First Cases after Bankovic 178

D. Later Cases After Bankovic 181

1. Exercise of Public Powers Abroad 181

2. Effects of Acts Abroad 185

3. Cases Involving the Presence of Troops Abroad 187

a. Detention of Persons Abroad 188

b. Incidents in UN Neutral Buffer Zone 205

c. Further Military Operations 213

Conclusion 247

Overall Concluding Remarks 252

Chapter 3: The Convention Against Torture 255

1. A Different Treaty Covering an Absolute Right 256

2. Extent of States Parties' Obligations 258

A. States' Main Obligation Under the Convention Against Torture 259

B. Preparatory Work of the Convention Against Torture 261

1. Discussions on Article 2(1) CAT During the Preparatory Work 267

2. Discussions on Article 16(1) CAT During the Preparatory Work 268

3. Discussions on Article 3(1) CAT During the Preparatory Work 270

3. Doubts Raised on the Geographical Extent of Application of the CAT 273

A The Position of the United Kingdom 273

1. The Position of the Committee in Relation to the UK 277

2. The UK Comments on the Recommendations by the Committee 277

3. Later Developments Regarding the UK 279

B. The Position of the United States 286

1. The Position of the Committee in Relation to the US 289

2. The US Comments on the Recommendations by the Committee 290

3. Later Developments Regarding the US 291

C. The Position of the Committee as Reflected in its Further Practice 293

Conclusion 299

Final Conclusion 301

Bibliography 305

Table of Cases 311

Table of Treaties, Legislation, and Other Relevant Instruments 317

Index 321