The Extra-territorial Obligations of European States regarding Human Rights in the Context of Terrorism

This chapter focuses on the growing tendency of international human rights law to require states to protect the rights of non-nationals who are in the state unlawfully and of nationals and non-nationals who are outside the state, especially when any of these people are involved in terrorist or counter-terrorist activity. It reviews these additional obligations within a European context, focusing on EU law and the law of the European Convention on Human Rights and drawing on the case law of UK courts. Part 1 considers when a European state must grant asylum to alleged terrorists on the basis that otherwise they would suffer human rights abuses in the state from which they are fleeing. Part 2 examines whether, outside of asylum claims, a European state must not deport or extradite an alleged terrorist because he or she might suffer an abuse of human rights in the receiving state. Part 3 looks at whether a European state whose security forces are engaged in counter-terrorism activities abroad is obliged to protect the human rights of the individuals serving in those forces and/or the human rights of the alleged terrorists they are confronting. While welcoming the extension of state responsibility, the chapter notes that it is occurring in a way which introduces three aspects of relativity into the protection of human rights. First, European law protects only some human rights extra-territorially. Second, it protects those rights only when there is ‘a real risk’ of their being violated. Third, sometimes it protects those rights only when there is a real risk of their being violated ‘flagrantly’.