Case Comment: Recent Developments in the Extraterritorial Scope of Application of the ECHR in the Aftermath of Jaloud v The Netherlands [2014]

Authors: Stefanos Xenofontos Published date: 15-07-2016 Status: Under Review

In an age of globalization, as a result of the ongoing global ‘war on terror,’ and the rise in foreign military interventions, states’ military conduct is increasingly expanding outside their territorial boundaries. This phenomenon has caused an additional vulnerability for individuals, increasingly posing a threat to their human rights, and the right to life in particular, even across borders. This case comment examines the recent developments in the extraterritorial scope of application of the European Convention on Human Rights (ECHR) as they arise from the recent judgment in Jaloud v The Netherlands (2014).1 Particular emphasis will be given to the legal difficulties in protecting the human right to life, in the context of multinational military operations overseas; as well as the developing trend towards further extending a state’s scope of jurisdiction in foreign battlefields. As the jurisprudence of the UK national courts indicates, Jaloud’s new ‘checkpoint’ test for jurisdiction, leaves the door wide-open for establishing the ECHR States’ jurisdiction in aerial bombardments (previously rejected in Bankovic2), or targeted killings by drones in the context of future operations. Certainly, such a finding would open the way for the courts to challenge governmental decisions on major policy choices in foreign affairs and further judicialise armed forces’ conduct. Keywords: Human Rights, Extraterritoriality, Jurisdiction, Armed Conflict, Military Operations, Drones.

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