Is the Extra-territorial Application of the Human Rights Act Really Justified?

Abstract

AbstractThe question of whether the Human Rights Act can apply outside the UK has exercised English appellate courts in a number of recent cases. The European Court of Human Rights in Strasbourg has also dealt with the question of extra-territoriality in respect of the European Convention on Human Rights, most notably in the case of Bankovic v Belgium. This article considers whether, as a matter of strict construction, there can be extra-territorial application of the Act and/or the Convention. It goes on to consider some particular circumstances where extra-territorial application has been found, and attempts to set down some principles governing when the courts ought to apply the Act or Convention outside the territory of a High Contracting Party. The article concludes that the existing jurisprudence both at Strasbourg and in the UK strikes a sensible balance between the Convention's regional character and the need to ensure States Parties are accountable for their conduct abroad. This article applauds the Strasbourg and UK courts' importation of relevant principles of public international law in determining the scope and applicability of the rights protected by the Convention.