EXTRA-TERRITORIAL JURISDICTION OF THE EUROPEAN COURT OF HUMAN RIGHTS: The Concept of Functional Jurisdiction

Abstract

This study promotes ‘functional concept of jurisdiction’ by examining the extraterritorial jurisdiction of the European Court of Human Rights, how the court exercises its authority when violation takes place outside the territory of the violating State. This is done with the aid of doctrinal analysis, by relying on international law, case laws, legal principles and concepts and the writings of scholars as its material basis. The aim is to make the case laws of the European Court of Human Rights much clearer and hence minimize the frustration occasioned by the inconsistency of its case laws in the national courts of the Council of Europe members.

Reflection into the basic human rights jurisdictional clauses shows that there is a lacuna in the jurisdictional clause of the European Convention on Human Rights in Article 1 which requires the State parties to secure to everyone ‘within their jurisdiction’ the rights in the convention. This provision is anachronistic since it encourages territorial focus in this age of globalization. It is time to revise this provision so that it will be in tune with the contemporary jurisdictional clause that requires States to secure the convention rights to everyone ‘subject to their jurisdiction’ broadly speaking as found in more recent human rights treaties.