[Cedric Ryngaert is an Associate Professor at KU Leuven and the University of Utrecht]
Samantha Besson has provided a fine normative account of the extraterritorial application of the ECHR. At the same time, she believes that this account may well offer a rationalization of the string of controversial ECtHR decisions in this matter. Besson’s argument may or may not have explanatory power as regards the ECtHR case-law, but what is sure is that the Court will be happy to hear that, as far as extraterritoriality is concerned, it can at least count on some academic supporters.
I concur with Besson’s analysis in many respects, but in the interest of the discussion I would like to elaborate on some points of disagreement.
In my view, that which Besson has added to existing analyses of extraterritoriality is the
normative dimension of the concept of jurisdiction, as the third constitutive element of jurisdiction, apart from effective power and overall control. Drawing on legal theorist Joseph Raz’s writings, Besson submits that jurisdiction, qua
de facto authority, ‘amounts to more than the mere exercise of coercion or power, as a result: it also includes a normative dimension by reference to the imposition of reasons for action on its subjects and the corresponding appeal for compliance (e.g., through giving instructions)’. Further on in her article, drawing on theorists of democracy, she cites the ‘all-subjected principle’, which ‘requires actual normative subjectedness and not only affectedness’.
