Authority,Control and Jurisdiction in the Extraterritorial Application of the European Convention on Human Rights

Abstract

The conditions under which the European Convention of Human Rights applies outside a Member State's territory continue to be imprecisely defined. This article attempts to clarify the meaning of ‘authority’ and ‘control’, the core notions employed by the Convention organs to determine extraterritorial ‘jurisdiction’ under Article 1 of the Convention. In line with early case law, it is argued that a State brings persons within its extraterritorial jurisdiction if it exercises actual authority over them. Actual authority, the article continues, should be understood as the ability to prescribe conduct. Whether a State prescribes conduct by formal or informal means is irrelevant; even seemingly mere factual acts may have a normative content and constitute authoritative acts. ‘Control’ describes the State's ability to enforce the conduct it has prescribed. Only where it has such control can the State be said to have actual authority, and therefore jurisdiction, over the person concerned.