| The main legal source of international human rights law is the international human rights convention.However,most of the conventions in Article 1 stipulate that states parties owe human rights obligations to individuals within the “jurisdiction” of the conventions.In general,the jurisdictional competence of a state is primarily determined territorially.Therefore,the meaning of the “jurisdiction” provided in the conventions has become an important issue in international human rights law.This is also known as the "extraterritorial application".In recent years,there have been more and more cases of human rights violations committed by states parties outside their territories,including British military operations in Iraq since 2003,and the systematic surveillance of politicians and officials both within and outside of the United States conducted by the US Intelligence Service National Security Agency(NSA).Therefore,the issue of the extraterritorial scope of the convention on international human rights has been transferred from abstract doctrine into a question with singularly pressing political and legal ramifications.So far,Al-Skeini and Others v.United Kingdom is the most representative case of the European Court of Human Rights on the issue of “extraterritorial application”.Therefore,this article will analyze of the issues of "extraterritorial application" in this case,trying to put forward the contribution of the case to the development of "extraterritorial application" as well as the shortcoming of the judgement,and then intending to propose more reasonable solutions on some issues.At last,this article will analyze the implications for China’s relevant practices in the future.The article will be divided into six parts.The first part introduces the background and the facts,shows the main controversial issues,and clarifies the judgment of the case.The second,third and fourth parts of the article are based on the above issues and judgement,and further explore and clarify related issues.Among them,the second part explores the meaning of “extraterritorial application” in international human rights conventions focusing on the meaning of “jurisdiction” which is a relevant notion to “extraterritorial application”.This article agrees with the court’s decision that the meaning of “jurisdiction” here,“national jurisdiction” and “attribution of state responsibility” is not the same.“Jurisdiction” in the Convention means that the scope where the conduct of a party can be applied to the Convention.If the conduct of the party is extraterritorial,then the “extraterritorial application” of the Convention should be considered.Meanwhile,the criterion for “extraterritorial application”,“national jurisdiction” and “attribution of state responsibility” is completely different.The third part will explore the feasibility of expanding the scope of “extraterritorial application”.According to the precedents,this case is difficult to be judged as being within the scope of “jurisdiction”,so the question that needs to be resolved is whether the scope of “extraterritorial application” needs to be expanded.This article will gradually analyze the motivations and obstacles to expand the scope of “extraterritorial application”.The “extraterritorial application” standard should seek a balance of values between universality,non-discrimination,indivisibility and regionality of human rights protection.The universality of human rights protection should be a priority.The fourth part examines the conditions that allow "extra-territorial application." On the basis of precedents,this case has further explained the conditions for allowing “extraterritorial application” and expanded the scope of “extra-territorial application” to a certain extent.This article believes that such standards is rational to some degree,but there are still problems that are difficult to solve.Therefore,in the next part of this article,through the analysis of other international practices,this article will explore a more reasonable way to solve the problem of “extraterritorial application”.The fifth part will observe the overall international practice of “extraterritorial application”.By comparing this case with other “extraterritorial application” practices outside the European Convention on Human Rights,it can be argued that the protection of human rights based on general legal principles will be the trend of future human rights protection.The sixth part is intended to analyze the impact of this case on international human rights law,the development of other areas of international law,and the possible implications for China’s "extraterritorial application" practice in the future. |
