Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention

European participation in controversial aspects of the ‘war on terror’ has transformed the question of the extraterritorial scope of the European Convention on Human Rights from abstract doctrine into a question with singularly pressing political and legal ramifications.doctrine into a question with singularly pressing political and legal ramifications. Yet the European Court of Human Rights has failed clearly to articulate when and why signatory states’ extraterritorial actions can be brought within the jurisdiction of the European Convention. The Court has veered between a narrow view of extraterritorial jurisdiction confined to four fixed categories of cases and a broader view which contemplates extraterritorial jurisdiction when a signatory state effectively controls an individual’s ability to exercise fundamental Convention rights. Scholars have favoured the latter, arguing that the universality of human rights demands an expansive concept of extraterritorial jurisdiction. This article proposes a different theory: existing categories of extraterritorial jurisdiction can best be understood as limited exceptions to the rule of territorial jurisdiction because they all require some significant connection between a signatory state’s physical territory and the individual whose rights are implicated. Properly understood, extraterritorial jurisdiction under the European Convention is and should be limited to such situations to maintain a workable balance between the Convention’s regional identity and its universalist aspirations. * Law Clerk to the Hon. Sandra Lynch, Chief Judge, US Court of Appeals for the First Circuit; J.D., Harvard Law School, 2009. Email: [email protected]. 1224 EJIL 20 (2009), 1223–1246