“Hard Power” and the European Convention on Human Rights

Abstract

To Ingrid viii contents 5.5.1 Legal acts of domestic authorities in another country, such as diplomatic or consular activity 155 5.5.2 The exercise of jurisdiction by a State over its own troops abroad 156 5.5.3 Ad hoc domestic tribunal set up abroad with the permission of the receiving State 157 5.5.4 Cases in which the presence of foreign judges is not exercise of extraterritorial jurisdiction by another State 157 5.6 Cases in which acts producing effects abroad are not exercise of extraterritorial jurisdiction 158 5.6.1 Expulsion and extradition 158 5.6.2 Attack on foreign territory 160 5.7 Conclusion 161 ix contents 6.7 The status of 'occupying power' 217 6.8 Conclusion 222 7 Jurisdiction of the European Court of Human Rights 7.1 Introduction 225 7.2 Territorial limitations to the acceptance of Convention jurisdiction 225 7.3 Reservation (Article 57 of the Convention) 227 7.4 Conflicting international obligations 229 7.5 Conclusion 235 8 Attribution 8.1 Introduction 237 8.2 'Jurisdiction' and 'attribution' in the logic of the Court 237 8.2.1 Relationship to the general law on State responsibility for internationally wrongful acts 237 8.2.2 The concepts of 'jurisdiction' and 'attribution' in the case-law of the Court 238 8.3 Attribution of the exercise of 'hard power' by the Contracting State 241 8.3.1 Attribution of extraterritorial exercise of 'hard power' 241 8.3.2 Attribution of exercise of 'hard power' committed within the territory of a Contracting State 243 8.4 Involvement of agents other than organs of than the Contracting State 245 8.4.1 General international law 245 8.4.2 Private agents: case-law of the Court 247 8.4.3 Private military security contractors 247 8.4.4 Cyber-attacks as a new problem of attribution 252 8.4.5 International organisations 255 8.5 Subordinate pseudo-states 273 8.5.1 The 'Turkish Republic of Northern Cyprus' 273 8.5.2 The 'Moldovan Republic of Transdniestria' 274 8.5.3 Requirements governing remedies offered by subordinate entities 276 8.5.4 Ad hoc remedy: the 'Turkish Republic of Northern Cyprus' 276 8.5.5 Internationally imposed quasi-indigenous institutions 282 8.6 Conclusion 296 9 Summary and conclusions 9.1 Applicability of the Convention ratione pacis sive belli 299 9.2 The first defence: no violation 300 9.2.1 Denying the facts 300 9.2.2 The possibilities of derogation 300 9.3 The second defence: denying the jurisdiction of the Contracting State 304 9.3.1 Existence of Article 1 jurisdiction 304 9.3.2 Typology of Convention-relevant exercise of jurisdiction in 'hard power' situations 306 9.4 The third defence: denying the jurisdiction of the European Court of Human Rights 309 9.5 The fourth defence: denying attribution 309 9.6 Final observations 312 Samenvatting (Summary in Dutch) 315 References 345 Curriculum vitae 379Thanks are due to Roderick Liddell and Françoise Elens-Passos, Registrar and Deputy Registrar of the European Court of Human Rights ('the Court') respectively, for permission to publish this work; to Lawrence Early and Anna Austin, Jurisconsult and Deputy...