THE EXTRATERRITOAL APPLICATION OF SELECTED HUMAN RIGHTS TRATISPDF|Epub|txt|kindle电子书版本网盘下载

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Introduction1

1. Origins of the Current Debate1

2. Object and Method of the Present Investigation4

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

A. Main Arguments Supporting the Territorial Application of Human Rights Treaties9

B. Main Arguments Supporting the Extraterritorial Application of Human Rights Treaties12

Chapter 1: The International Covenant on Civil and Political Rights15

Preliminary Considerations on the Interpretation of International Treaties15

1. Wording and Origins17

2. History of the Proceedings20

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 Provision23

2. Drafters' Main Focus of Concern: Guaranteeing Rights to Nationals and Aliens in a State Party's Territory23

3. US Amendments to the Jurisdictional Clause24

a. Analysis of the US Proposal to Include Reference to 'Territory' in the Jurisdictional Clause27

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 Territory29

b. Military Occupation as an Exceptional Situation31

c. Reference to the Reach of Penal Law32

d. Nature of Rights and Possibility of Ensuring them Abroad33

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 ICCPR40

3. The Jurisdictional Clause of the ICCPR Interpreted by Monitoring Bodies41

Preliminary Considerations41

A. Quasi-Judicial Bodies: The Position of the Human Rights Committee42

1. Views in Individual Communications43

a. Petitions Brought by Persons Who Fled the Country Regarding Events Occurred in the Country43

b. Passport Cases45

c. Persons Kidnapped by State Agents Operating Abroad49

2. General Comments54

3. Concluding Observations57

a. Military Occupation58

b. Troops Operating Abroad in Situations Other than Military Occupation64

c. The US Territorial Interpretation of the Covenant66

B. Judicial Bodies: The Position of the International Court of Justice77

1. Wall Advisory Opinion77

2. Judgment in the Case of Armed Activities on the Territory of the Congo81

C. Further International Human Rights Mechanisms: UN Special Procedures85

Conclusion89

Chapter 2: The Spatial Reach of the European Convention on Human Rights93

Introduction93

1. Wording and Origins of Article 1 ECHR93

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

A. Cases Related to Diplomatic and Consular Authorities96

B. Cases Involving Arrest or Detention of Persons Abroad99

C. Further Exercise of Public Powers Abroad100

D. Cases Involving the Presence of Troops Abroad103

Conclusion108

3. Cases Before the European Court of Human Rights110

A. Cases before Bankovic110

1. Control over Territory110

2. Regular Exercise of Public Powers115

3. Non-Refoulement Cases119

Conclusion on the Vxe-Bankovic Jurisprudence123

B. The Bankovic Case125

1. Factual Background125

2. Parties' Arguments125

3. Decision by the Court126

a. Recourse to the VCLT (1969)127

1) Ordinary Meaning of Jurisdiction in Public International Law: Primarily Territorial128

2) Subsequent State Practice132

3) Confirmation of Results: Travaux Preparatoires136

b. Recall of the Jurisprudence of the Court on Extraterritorial Jurisdiction138

c. Courts Evaluation of the Case at Hand140

1) Cause-and-Effect Notion of Jurisdiction140

2) Rendering Reference to Jurisdiction in Article 1 Devoid of Any Purpose142

3) Limited Airspace Control as Amounting to Jurisdiction: Comparison with the Soering Case145

4) Comparable Treaty Provisions and Jurisprudence of Further Human Rights Bodies on the Subject147

5) 'Ordre Public' Argument, Avoiding a Regrettable Vacuum and the Legal Space of the ECHR147

6) Comparison with then Ongoing Cases on Similar Issues149

7) Absence of a 'Jurisdictional Link'149

8) Further Possible Non-Stated Reasons Influencing the Decision in Bankovic150

9) Regional Character of the Convention151

Conclusion on the Bankovic Case160

C. First Cases After Bankovic161

1. Control Over Persons161

2. Control Over Territory165

3. Control Over Persons and Control Over an Area174

Conclusion on the First Cases after Bankovic178

D. Later Cases After Bankovic181

1. Exercise of Public Powers Abroad181

2. Effects of Acts Abroad185

3. Cases Involving the Presence of Troops Abroad187

a. Detention of Persons Abroad188

b. Incidents in UN Neutral Buffer Zone205

c. Further Military Operations213

Conclusion247

Overall Concluding Remarks252

Chapter 3: The Convention Against Torture255

1. A Different Treaty Covering an Absolute Right256

2. Extent of States Parties' Obligations258

A. States' Main Obligation Under the Convention Against Torture259

B. Preparatory Work of the Convention Against Torture261

1. Discussions on Article 2(1) CAT During the Preparatory Work267

2. Discussions on Article 16(1) CAT During the Preparatory Work268

3. Discussions on Article 3(1) CAT During the Preparatory Work270

3. Doubts Raised on the Geographical Extent of Application of the CAT273

A The Position of the United Kingdom273

1. The Position of the Committee in Relation to the UK277

2. The UK Comments on the Recommendations by the Committee277

3. Later Developments Regarding the UK279

B. The Position of the United States286

1. The Position of the Committee in Relation to the US289

2. The US Comments on the Recommendations by the Committee290

3. Later Developments Regarding the US291

C. The Position of the Committee as Reflected in its Further Practice293

Conclusion299

Final Conclusion301

Bibliography305

Table of Cases311

Table of Treaties, Legislation, and Other Relevant Instruments317

Index321