Territory, Terrain, and Human Rights: Jurisdiction and Border Control Under the European Convention on Human Rights

ABSTRACT

In recent years, European states have become creative in developing strategies to curtail international migration while escaping their obligations under human rights law. These strategies aim at stopping migrants before they can enter a state’s jurisdiction, under the argument that states are not bound to their obligations while operating outside their jurisdictional boundaries. This article adopts a geographic perspective to examine the concept of jurisdiction under the European Court of Human Rights (ECtHR), and particularly its nexus with territory. During the last decade, the ECtHR has interpreted jurisdiction to encompass situations where states apprehend migrants outside their borders, thus extending jurisdiction to extraterritorial operations. However, states can circumvent this by manipulating the territorial organisations of their borders to prevent migrants from reaching their territory without directly apprehending them. These strategies include agreements with countries of transit along with other, specific interventions. I take the case of N.D. and N.T. v. Spain as an example of this trend, and of the ECtHR’s failure to make European states accountable. As a solution, I argue that jurisdiction should be interpreted to encompass territoriality as one of its components, and under a definition of territory informed by geographic research, and distinct from its conventional definition under international law.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1. See the dissenting opinion of Judge Paulo Pinto de Albuquerque in the 2019 case of Georgia v. Russia II.

2. On this note, see the dissenting opinion of Judge Paulo Pinto de Albuquerque in the 2019 case of Georgia v. Russia II.

3. Notably, in Carter v. Russia the ECtHR extended jurisdiction to a case concerning an extraterritorial killing by state forces, shrinking the distance between jurisdiction and causation that was previously established by Bankovic v. Belgium and Sixteen Other Contracting States (see Tzevelekos and Berkes 2021). However, in Georgia v. Russia II the Court did not extend jurisdiction under the bizarre logic that the moment of chaos that accompanies active military combat cannot coincide with the ‘effective control’ that is required by Art. 1. Finally, the Court has recently relied on the concept of ‘special features’ to extend jurisdiction under narrow grounds specific to the case at hand. For a criticism of this latter trend see the Joint Partly Dissenting Opinion of Judges Grozev, Ranzoni, and Eicke in Hanan v. Germany.

4. Al-Skeini established three instances of jurisdiction triggered by the actions of state agents. These are: the acts of consular agents who bring an individual under their state’s jurisdiction when operating within their functions abroad; the exercise of public powers in another state’s territory; and finally, the use of force against an individual by a state agent.

5. See especially Khlaifia and Others v. Italy, where the Court decided that a failure to provide migrants with individual interviews before expelling them does not necessarily violate Art. 4 P4.