Quick answer
Yes. A State's human rights jurisdiction is mainly territorial, but it can extend abroad in exceptional cases, especially when the State's agents exercise authority and control over a person, or when the State has effective control of an area outside its territory. In Al-Skeini and Others v. the United Kingdom (2011), the European Court of Human Rights held that Iraqi civilians killed in British security operations in Basra were within UK jurisdiction under Article 1 of the European Convention on Human Rights (ECHR). It found that the UK had failed to investigate five of the deaths effectively.
The law
Under Article 1 ECHR, States must secure Convention rights to "everyone within their jurisdiction". Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) uses a similar phrase: "within its territory and subject to its jurisdiction". In General Comment No. 31 (2004), the UN Human Rights Committee said a State must respect Covenant rights for anyone "within the power or effective control" of that State, even outside its territory. This includes people under the control of its forces acting abroad.
Al-Skeini and Others v. the United Kingdom, European Court of Human Rights (Grand Chamber), Application no. 55721/07, judgment of 7 July 2011. Six Iraqis complained about the deaths of their relatives during the British occupation of south-east Iraq in 2003. The Court held unanimously that the deceased were within UK jurisdiction. The UK had assumed in Iraq some of the public powers normally exercised by a sovereign government, including responsibility for security in south-east Iraq. In these exceptional circumstances, its soldiers carrying out security operations in Basra exercised authority and control over the individuals killed. The Court found a breach of the procedural duty under Article 2 (right to life) to investigate the deaths of the relatives of the first five applicants. The sixth applicant could no longer claim to be a victim.
Essential points
- Territory is the starting point. Jurisdiction is "primarily territorial". Acts abroad count as an exercise of jurisdiction only in exceptional cases, decided on the facts.
- State agent authority and control. This covers diplomatic and consular agents, a State that exercises public powers abroad with the host government's consent, and people taken into the custody of State agents abroad (the Court relied on Öcalan v. Turkey).
- Effective control over an area. A State that controls foreign territory through military action must secure Convention rights there.
- Rights can be "divided and tailored". When jurisdiction rests on control over a person, the State owes that person the rights relevant to their situation.
- No automatic reach. An act that merely has effects abroad does not by itself create jurisdiction. The answer depends on the treaty and the facts.
Example
Farhan is arrested in a foreign country by officers of State X and held in their custody there. Although Farhan is not on State X's territory, State X's agents have physical power and control over him. Under the reasoning in Al-Skeini, he is within State X's jurisdiction, so State X must respect rights such as the prohibition of torture and the right to life while he is in its hands.
Current-law note
Al-Skeini remains a leading Grand Chamber authority on extraterritorial jurisdiction. It moved away from the narrow reading of the earlier Banković decision (2001) by confirming that jurisdiction under Article 1 can exist outside the territory of Council of Europe States. For the general rules on when a State may exercise jurisdiction, see State Jurisdiction under International Law.
Exam point
Al-Skeini (2011): human rights jurisdiction is mainly territorial, but it follows State power abroad where the State's agents exercise authority and control over individuals.
Sources and further reading
- Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, 7 July 2011, HUDOC
- Human Rights Committee, General Comment No. 31 (CCPR/C/21/Rev.1/Add.13), 2004
- European Convention on Human Rights (official text), Council of Europe
- International Covenant on Civil and Political Rights (text), UN Treaty Collection
