Exceptions to the Jurisdiction Clauses - Essay Example

? “As a general rule, the notion of ‘jurisdiction’ within the meaning of article of the Convention … is ‘primarily’ or ‘essentially’ territorial.” (Grand Chamber of the European Court of Human Rights in Assanidze v Georgia (2004) para 137.) Examine how far the exceptions to this general rule do and should extend. Analysis of exception to the jurisdiction clauses as discussed in Assanidze v Georgia Article I of the European Convention on Human Rights (ECHR) demands the Member Nations to offer security to every individual within their territory or jurisdiction, and the freedom and rights contained in Section 1 of the Convention. Thus, under Articles 1, the Member Nations are accountable for the infringement of the safeguarded freedom and rights of any individual within their jurisdiction or competence –particularly at the juncture of the infringement. In Assanidze v Georgia1 case, the pivotal issue before the court was whether the jurisdiction can be exercised by the Central government of Georgia in the “Ajarian Autonomous Republic” as the Georgia encountered some intricacies in inflicting its authority over the local authority of the autonomous republic. The view of the court was that the “ Ajarian Autonomous Republic “ is without any doubt an integral province of the Georgia and subject to its control and competence . Thus, in this case, no debate concerning the “effective control” was thrown up2. Though a state is having jurisdiction throughout its territory, there could be some extraordinary scenarios where a State could not exercise its authority in some regions in its territory. So as to corroborate whether such scenario is existing , the Court will be looking into not only the objective facts but also the State’s demeanour as the State has the positive duty to initiate apt steps to make sure that there exists a respect for human rights within its whole of its region. The court will also look into in an extraordinary scenario the acts of a State which created impacts or happened outside its jurisdiction or territory, which could be regarded as exercise of its jurisdiction. Further, if in the outside territory of a State, if a State is exercising its control over its local administration, mainly through its military and fiscal support, then it could be conceived as the State is having jurisdiction in such territories3. Only under exceptional scenarios , jurisdiction is supposed on the footing of non-territorial issues like – the criminal activities by any individuals in abroad against the interest of the its nationals or against the country ; actions by public officials carried out in abroad by consular and diplomatic representatives of the State ; certain acts carried out on the board of vessels flying the State flag or spacecraft or aircraft registered in such a nation ; and especially in relation to grave international crimes. In Gentilhomme and Others v France,4 it was held that the concept of “ jurisdiction” within the meaning of Article 1 of the convention must be regarded as mirroring the status under public international law. In Bankovic and Others v Belgium and other Contracting States5, it was held that the concept “jurisdiction” is essentially or primarily territorial. In Lozidou v Turkey6 , the territorial jurisdiction covers any area which, at the time of the said infringement, is under the “overall control of ‘of the state concerned, which is in addition to the State territory proper. In Cyprus v Turkey [GC]7 , the term jurisdiction refers notably to occupied regions except the areas which fall outside such control8. In Illascu v Moldova and Russia9 case, the court substitutes the “ effective control” test by appending two more new components; the “survival through support” test and the “ decisive influence “ test. In this case, the court has not given any significance to the “effective control” but substituted the same with the concept “effective authority.” In Moldova’s case, the Moldovan officials did not have any authority in any kind over the region occupied by the separatist and its de facto province. The court observed that the Republic of Moldova, which is accountable under the international law, does not have any control over the region occupied by the separatists. The court was of the opinion that the separatist government had actual control over the province, and Russian Federation also had effective control over the MRT due to the fact that Russia wielded influence upon such separatists. After considering these situations, the Court has come to a conclusion that as the Moldovan government did not possess jurisdiction in the background of the case and hence, the test of the “effective control” cannot be extended to this case as pronounced in Bankovic verdict, which is rather inflexible and needs the authority over the area occupied by separatist and their muscle power and the length of such authority for a long phase of time over such a region. Thus, if one applies the rule laid in Bankovic case, Moldova obviously did not have effective authority, as the real authority is being in the hands of separatists and hence there were no infringement of provisions of the conventions. In case of Cyprus v Turkey, it was observed by the Court that as Turkey was exerting its control over the northern regions of Cyprus, while the Republic of Cyprus had actually disowned their control over the disputed region, and as they did not owe any accountability over the human rights violations unleashed on the residents in those regions, the court was of the opinion that Turkey was accountable10. It is essential to differentiate between the Ilascu case with that of Georgia case. In Ilascu case, there is no jurisdiction by the government as the Transnistria was under the control of Separatist, and they exercised their whole control over the region and hence government did not have any jurisdiction over the province. However, Georgia’s officials never denied any accountability over jurisdiction for the entirety of the province, and Georgia’s central government had some temporary issues in inflicting their command in that province11. In Bankovic and Others v Belgium and Others12, the appellants who were impacted by a bombing action by NATO preyed that the aerial strike brought against them would fall under the jurisdiction of Belgium. The plaintiff’s main contention was that the “magnitude of the positive duty under Article 1 of the ECHR Convention, to secure the rights offered under Convention which would be in proportion to the magnitude of control, in fact employed. The appellants relied on the decision Loizidou v Turkey13 where it was held that though the alleged offenses were occurred in the province of the “Turkish Republic of Northern Cyprus, which was recognised by the Turkey as an independent state. The court opined that Turkey had jurisdiction over the region as it had a duty to secure , in such province , the obligations and freedoms as detailed in the Convention emanates from the veracity of such control whether it be exercised through a local subordinate administration or through direct control or through its armed forces. However, in the Bankovic case, it was held that there were jurisdictional association between the respondent States and the claimants who were victims of the aerial bombing and the appellants, and their dead relations were not falling under the jurisdictions of the respondent States due to extra-territorial action under review. In Bankovic case , it was observed that there is no bar under international law to exclude State’s exercise of jurisdiction extra-territorially , but , the recommended footing of such jurisdiction, which includes diplomatic , nationality , flag , consular relations , safeguard , effect , universality and passive personality are as a normal rule restricted and defined by the sovereign provincial privileges of the concerned relevant States14. The concept that a state must be presumed to exercise jurisdiction well within its entire region , unless , this presumption can particularly be refuted , was confirmed by the ICJ (International Court of Justice) in its view on the erection of a wall in the occupied Palestinian Territories also. Thus, the general principles detailed in the above case and in Assanidze v Georgia, which will update the resulting desire to assess the extraterritorial jurisdiction vis-a-vis refugees in foreign territorial jurisdictions and on the high seas. The European Court of Human Rights was asked to decide on the question of international airport zones in Amuur v France. This case pertained to detention and later removal of asylum-seekers from Somalia from the International zone namely Paris-Orly airport. Though, the French government was of the opinion that the international zone would not form the part of the French region, but the court was of the view that in spite of its name, the international zone does not have extraterritorial status, and, that in spite of French legislation to the opposite, withholding the claimants in this zone made them to be under the French law. The court was of the view that France exercised its sovereign authority in this region and hence, the safeguards extended under both ECHR, and the Refugee Convention had to be extended15. The major lesson learned from Amuur case is that for one purpose, states cannot assume the sovereign powers while keeping out them regarding others- the power in regard to migration control needs affiliated responsibilities with regards to refugees and asylum-seekers. The exceptions to the general rule to the notion of ‘jurisdiction’ as held in Assanidze v Georgia A state is supposed to have jurisdiction throughout its whole territory, and this supposition can be refuted in extraordinary scenarios. In cases where effective control over the regions of a state’s territory is controlled by a separatist movement or where a territory has been in foreign occupation, there exists some positive duties with territorial state even in such scenarios. Even though, there is no doubt that a state’s jurisdiction covers to its whole territory, differentiating rules for the ‘border areas’ or for such ‘international zones’ may still be regarded as a political-legal strategy from national panorama16. In Illascu v Moldova and Russia, the Court has come to a conclusion that as the Moldovan government did not possess jurisdiction in the background of the case and hence, the test of the “effective control” cannot be extended to this case as pronounced in Bankovic verdict. In Bankovic case , it was observed that there is no bar under international law to exclude State’s exercise of jurisdiction extra-territorially , but , the recommended footing of such jurisdiction which includes diplomatic , nationality , flag , consular relations , safeguard , effect , universality and passive personality are as a normal rule restricted and defined by the sovereign provincial privileges of the concerned relevant States. Though in Bankovic and Others v Belgium and other Contracting States17, it was held that the concept “jurisdiction” is essentially or primarily territorial but only under exceptional scenarios , jurisdiction is supposed on the footing of non-territorial issues like – the criminal activities by any individuals in abroad against the interest of the its nationals or against the country ; actions by public officials carried out in abroad by consular and diplomatic representatives of the State ; certain acts carried out on the board of vessels flying the State flag or spacecraft or aircraft registered in such a nation ; and especially in relation to grave international crimes. Bibliography Conforti B, The Italian Yearbook of International Law, Volume 14 (2004) (Martinus Nijhoff Publishers 2005) European Commission for Democracy through Law, The Status of International Treaties on Human Rights (Council of Europe Publications 2006) Gammeltoft-Hansen T, Access to Asylum: International Refugee Law and the Globalisation of (Cambridge University Press 2007) Mowbray A R, European Convention on Human Rights (Oxford University Press 2007) Schutter O D, ‘Globalisation and Jurisdiction: Lessons From the European Convention on Human Rights ‘< www.chrgj.org/.../DeSchutter%20Globalization%20and%20Jurisdiction> accessed on 16 March 2012 Read More