MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
“Everyone has the right to respect for his private and family
life, his home and his correspondence.”
Mr Jaffey submits that the acts claimed would amount to an infringement of the right
to respect for private life and/or correspondence.
52.
When it has addressed its mind to the issue, the ECtHR has always held that, subject
to identified exceptions, the reach of the Convention is territorial. The modern
starting point is Bankovic v UK and Others [2007] 44 EHRR 75. The Court
acknowledged the principle of public international law, that the jurisdictional
competence of a state is primarily territorial: paragraph 57. It was of the view that
“Article 1 of the Convention must be considered to reflect this ordinary and
essentially territorial notion of jurisdiction, other bases of jurisdiction being
exceptional and requiring special justification in the particular circumstances of each
case”: paragraph 59. It took into account the travaux préparatoires, so as to include
within the scope of the Convention “others who may not reside, in a legal sense, but
who are, nevertheless, on the territory of the contracting states”: paragraph 61. It
expressly approved in paragraph 64 an earlier statement of principle in Soering v UK
[1989] 11 EHRR 439,
“…The engagement undertaken by a contracting state is
confined to “securing” (“reconnaître” in the French text) the
listed rights and freedoms to persons within its own
“jurisdiction”.
53.
The most recent clear and authoritative summary of the law by the ECtHR appears in
Chagos Island v UK [2013] 56 EHRR SE15 at paragraph 70:“i. A State’s jurisdictional competence under Article 1 is
primarily territorial;
ii. Only exceptional circumstances give rise to exercise of
jurisdiction by a State outside its own territorial boundaries;
iii. Whether there is an exercise of jurisdiction is a question of
fact;
iv. There are two principal exceptions to territoriality:
circumstances of “State agent authority and control” and
“effective control over an area”;
v. The “State agent authority and control” exception applies to
the acts of diplomatic and consular agents present on foreign
territory; to circumstances where a Contracting State, through
custom, treaty or agreement, exercises executive public powers
or carries out judicial or executive functions on the territory of
another State; and circumstances where the State through its
agents exercises control and authority over an individual
outside its territory, such as using force to take a person into
custody or exerting full physical control over a person through
apprehension or detention.