Bankovic v Belgium

• Date: 12 December 2001
• Court: European Court of Human Rights

European Court of Human Rights (Grand Chamber).

(Wildhaber, President; Palm, Rozakis, Ress, Costa, Jörundsson, Caflisch, Kūris, Cabral Barreto, Türmen, Stráznická, Bîrsan, Casadevall, Hedigan, Thomassen, Baka and Traja, Judges)

Banković

and

Belgium and Others1

Human rights — Nature and scope of human rights treaties — European Convention on Human Rights, 1950 — Article 1 — Duty of parties to secure the rights and freedoms under the Convention to persons within their jurisdiction — Extent of jurisdiction — Persons outside the territory of a Contracting State — Whether within its jurisdiction — Interpretation of the Convention — Requirement that Convention be interpreted in accordance with international law — Convention as part of the system of international law

Human rights — Protection in time of armed conflict — Relationship between human rights and international humanitarian law — Right to life — Bombardment of target in foreign State during armed conflict — Whether capable of amounting to violation of the right to life — European Convention on Human Rights, 1950, Article 2

Jurisdiction — Concept of jurisdiction in international law — Jurisdiction primarily territorial — Circumstances in which jurisdiction of State extends beyond its borders — Whether persons affected by military action taken by one State in the territory of another fall within the jurisdiction of the former State

Treaties — Interpretation — Vienna Convention on the Law of Treaties, 1969, Articles 31 and 32 — Applicability to interpretation of the European Convention on Human Rights, 1950 — Ordinary meaning of words used — Subsequent practice — Relevance of travaux préparatoires — Convention as a living instrument

War and armed conflict — Law applicable to armed conflict — Human rights law — Relationship with international humanitarian law

Summary: The facts:—Between 24 March and 8 June 1999 air force units from the Member States of the North Atlantic Treaty Organization (‘NATO’) attacked targets in the Federal Republic of Yugoslavia (‘the FRY’) in response to attacks by the FRY Government on the population of Kosovo, a province of Serbia. During the NATO air attacks, a building in Belgrade, which housed the studios of Radio Television Serbia (‘RTS’), was bombed. Sixteen people in the building were killed and another sixteen were injured. The applicants, relatives of some of those killed and one of the injured survivors, brought proceedings before the European Court of Human Rights against the seventeen Member States of NATO which were also parties to the European Convention on Human Rights, 1950.2 The applicants maintained that the attack on the RTS building violated Articles 2 (right to life), 10 (freedom of expression) and 13 (right to an effective remedy) of the Convention.

The Respondent States challenged the admissibility of the application and the Grand Chamber decided to hold a separate hearing on the issue of admissibility. The Respondent States maintained that the application was inadmissible ratione personae, because it fell outside the scope of the Convention as defined by Article 1, which provided that ‘the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. According to the respondents, the applicants and their relatives, who were in the territory of the FRY, a State not party to the Convention, at the time of the attack did not come within the jurisdiction of any of the Respondent States at that time and were accordingly not within the scope of the Convention. The respondents also maintained that the Monetary GoldINTL principle3 precluded the Grand Chamber from deciding the case, because the rights of Canada and the United States of America would necessarily be affected by the decision and those States were not parties to the proceedings. Hungary, Italy and Poland also submitted that the applicants had failed to exhaust domestic remedies as required by Article 35 of the Convention. France argued that the attack was imputable to NATO, not to the individual Member States.4

The applicants maintained that the jurisdiction of a State was not confined to its territory and that Article 1 should be read as extending the protection of the Convention to those killed and injured in the RTS building on the ground that the Respondent States had effective control of the airspace over Belgrade at the time of the attack. Alternatively they argued that, since the deaths and injuries sustained in the attack had resulted from acts performed in the territory

of one or more of the Respondent States, the case fell within the principle in Soering v. United KingdomINTL.5

Held (unanimously):—The application was inadmissible. The applicants and their relatives were not within the jurisdiction of the Respondent States.

(1) The principles underlying the Convention could not be interpreted and applied in a vacuum. The Convention was to be interpreted as far as possible in harmony with other principles of international law of which it formed part. In particular, the Convention was to be interpreted in accordance with the principles on treaty interpretation codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, 19696 (paras. 55–9).

(2) Article 1 of the Convention had to be interpreted so as to reflect the ordinary and essentially territorial notion of jurisdiction in public international law. While the jurisdiction of a State was not confined to its territory, it was primarily territorial. Other bases of jurisdiction were exceptional and required special justification in the particular circumstances of each case. That meaning was confirmed both by subsequent practice of the parties and by the travaux préparatoires of the Convention. Although the Convention was a living instrument, it was impossible to ignore the clear indication given by the travaux préparatoires regarding the meaning of Article 1 which determined the very scope of the Convention (paras. 60–6).

(3) Where the responsibility of a State under the Convention was engaged by acts performed by that State outside its territory, it was because that State, through the effective control of the relevant territory and its inhabitants as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises some or all of the powers normally exercised by that government. International law also recognized that the extraterritorial exercise of jurisdiction by a State included cases involving the activities of its diplomatic and consular agents abroad and the exercise of authority on vessels flying its flag (paras. 67–73).

(4) The applicants in the present case did not come within the jurisdiction of any of the Respondent States. The fact that persons outside the territory of a State were affected by the actions of that State did not bring them within its jurisdiction. The positive obligation imposed on a State by Article 1 to secure the rights and freedoms under the Convention to all persons within its jurisdiction could not be divided and tailored in accordance with the particular circumstances of the extraterritorial act in question. The principle identified by the decision in Soering was not applicable, because in that case the applicant was clearly within the jurisdiction of the UK at the time the relevant acts occurred (paras. 74–8).

(5) The Court's obligation was to have regard to the special character of the Convention as a constitutional instrument of the European public order. The Convention was a treaty operating in an essentially regional context and within the legal space (espace juridique) of the parties. The FRY did not fall within that legal space and the decision did not, therefore, leave a gap in the system of Convention protection (paras. 79–81).

(6) Accordingly, it was not necessary for the Court to consider the other objections to the admissibility of the application (para. 83).

The following is the text of the judgment of the Court:

THE FACTS

1. The applicants are all citizens of the Federal Republic of Yugoslavia (‘FRY’). The first and second applicants, Vlastimir and Borka Banković, were born in 1942 and 1945, respectively, and they apply to the Court on their own behalf and on behalf of their deceased daughter, Ksenija Banković. The third applicant, Živana Stojanović, was born in 1937 and she applies on her own behalf and on behalf of her deceased son, Nebojsa Stojanović. The fourth applicant, Mirjana Stoimenovski, applies on her own behalf and on behalf of her deceased son, Darko Stoimenovski. The fifth applicant, Dragana Joksimović, was born in 1956 and she applies on her own behalf and on behalf of her deceased husband, Milan Joksimović. The sixth applicant, Dragan Suković, applies in his own right.

2. The applicants are represented before the Court by Mr Anthony Fisher, a solicitor practising in Essex, by Mr Vojin Dimitrijević, Director of the Belgrade Centre for Human Rights, by Mr Hurst Hannum, Professor of International Law at Tufts University, Medford, MA, the United States and by Ms Françoise Hampson, barrister and Professor of International Law at the University of Essex. Those representatives attended the oral hearing before the Court together with their advisers, Mr Rick Lawson, Ms Tatjana Papić and Mr Vladan Joksimović. The third applicant, Ms Živana Stojanović, also attended the hearing.

3. The Governments are represented before the Court by their Agents. At the oral hearing the following Governments were represented as follows: the United Kingdom (whose submissions were made on behalf of all respondents) by Mr Christopher Greenwood QC and Professor of International Law, by Mr James Eadie, Counsel, by Mr Martin Eaton, Agent, Foreign and Commonwealth Office and by Mr Martin Hemming, Adviser; Belgium by Mr Jan Lathouwers, Deputy Agent; France by Mr Pierre Boussaroque, Counsel...