Extraterritorial application of the European Convention on Human Rights. From jurisdiction, as a preliminary objection, to responsability
DOI:
https://doi.org/10.18042/cepc/rdce.78.03Abstract
The incoherence and casuistry attributed to the Strasbourg Court’s approach to the extraterritorial application of the European Convention are, to a large extent, a consequence of the weight of the context in its decision in politically sensitive cases. This in turn responds, ultimately, to the Court’s need to seek the balance between the broadest protection of the rights enshrined in the Convention and the perception of its judgments by the States Parties.
The functional approach to the concept of jurisdiction can serve to nuance the weight of the context in the final decision, reducing the condition of jurisdiction as a preliminary objection that prevents the Court from having to rule on the merits of these cases, thus shifting the center of gravity of its examination towards responsibility.
It would be unrealistic to think of this approach as a definitive solution, which would make the weight of the context disappear in these complex cases, but at least it can make it easier for the Court to rule on possible violations of rights by the States Parties to the Convention outside their territory, showing that Europe’s commitment to human rights is not diluted when crossing its borders.
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