Voices from the Camps : A Call for Repatriation : Establishing Extraterritorial Jurisdiction Through the Functional Model

Sammanfattning

In today’s globalized world, characterized by unprecedented human movement across borders and far-reaching state actions, the question of the extraterritorial application of the European Convention on Human Rights (ECHR) has become both urgent and unavoidable. The European Court of Human Rights (ECtHR) has long grounded its extraterritorial jurisdiction in two models: the spatial model, based on effective control over territory, and the personal model, based on authority and control over individuals. Yet in practice, these models fall short, especially in cases where states have the power to prevent human rights violations without direct control over territory or individuals. One such extraordinary situation is the continued detention of European nationals, including women and children in camps in North-East Syria, where conditions have been described by the United Nations as amounting to cruel, inhuman and degrading treatment. In these circumstances as with many other situations, neither the spatial nor the personal model offers adequate protection. This thesis therefore explores a third jurisdiction model: the functional model, which focuses on states’ capacity and ability to affect individuals' human rights through actions or omissions. Although the ECtHR has consistently rejected the functional model, citing concerns over its extensive scope and incompatibility with the regional nature of the Convention, this thesis challenges that position. It argues that, when properly defined, the functional model does not lead to unlimited obligations. Instead, by requiring a direct, significant and foreseeable impact on rights or a special legal relation, this model offers a principled framework, one that better reflects the universality of human rights while not overburdening states. The Court should therefore reconsider its position and embrace a more functional approach to jurisdiction to ensure that the Convention remains an effective human rights mechanism.