Defining the Edge of Protection: The State Agent Authority Exception in Article 1 of the European Convention on Human Rights

Mallory, Conall (2013) Defining the Edge of Protection: The State Agent Authority Exception in Article 1 of the European Convention on Human Rights. In: CFP: “Law on the Edge” CLSA/​LSAANZ Joint Conference, July 2013, UBC Vancouver. (Unpublished)

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Abstract

Embodied in Article 1 of the European Convention on Human Rights is the requirement that States ‘secure to everyone within their jurisdiction the rights and freedoms defined’ within the treaty. This provision limits the human rights obligations upon States, and thus the protection of individuals, to events occurring within the jurisdiction of Contracting Parties to the Convention.
In recent years the European Court of Human Rights has established a strong presumption that jurisdiction is almost exclusively territorial in nature, apart from the exceptional situations when a State has effective control of an area outside its territorial borders and when a State’s agent exercises authority and control over an individual so as to bring them within the jurisdiction of the Contracting Party. The Court has appeared most willing to use this second exception of ‘State Agent Authority’ to widen the definition of jurisdiction within the meaning of Article 1.
This paper will analyse the limits of the State Agent Authority exception. Focusing on the origins of the exception within the jurisprudence of the Court the paper will map how its continued expansion has led to a wide understanding of jurisdiction. Through analysis of the Court’s reasoning in recent cases the paper will then define the current limits of its possible application and ask whether its reach can be extended any further.

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