Alla ricerca di un modello funzionale di applicazione extraterritoriale della legge sui diritti umani

When a state impacts the lives of individuals outside its territorial borders, does it owe them obligation under human right treaties to which it is a party? If so, under what circumstances? This paper seeks to find an answer to these questions. In the last few years, the issue of the extraterritorial application of human rights treaties has become increasingly significant in the international community. This issue has gained prominence especially because of the increase of individuals affected by State actions abroad who seek to obtain justice for violations through the instruments of international human rights law. Taking as examples the Turkish invasion of norther Cyprus or UK and US action in Iraq, they have generated extensive literature and case law. The emerging attention over the current area reveals the age we are living: it is the ‘age of rights’. With the growing impact of human rights treaties in the international context, they are not only a matter of international jurisprudence but also of policymaking. The primary focus of the paper is on treaties protecting civil and political rights, not because they are deemed more relevant, but only because of the larger amount of material compared to treaties protecting socio-economics rights. Furthermore, the majority of the cases examined deals with the European Convention on Human Rights and its Court for two central reasons; firstly, it is considerably the strongest human rights regime and secondly, its jurisprudence is the richest, the more authoritative and the most developed. However, the paper does not delve into the content of human rights treaties but rather explores the preliminary conditions for their application, that are essential for the analysis of the merits of any case. The extraterritorial application of human rights law is mediated by considerations of effectiveness and of universality, but mainly by interpretation. In particular application of human rights law is interconnected with the phrase ‘under its jurisdiction’, which is deeply explored in the paper. The research aims to find a functional model of extraterritorial application, passing through the analysis of the models currently existing and 4 recognized by the international community: the spatial model, which pertains to control over an area and the personal model, which concerns control over individuals. These models, each with their strengths and weaknesses, reveal to be functional in some situations, but completely inadequate for others, and the application of human rights treaties cannot be entrusted to arbitrary rules. Therefore, it is necessary to find a functional model, that merges the personal and the spatial models, keeping their strengths but eliminating their weaknesses, to ensure applicability in all circumstances. Even though human rights law is a developing field, continually renewed by new cases, and so, the insight in this paper could become obsolete in a few months, it provides a comprehensive overview of the three existing models of its extraterritorial application