Arms Trade, Human Rights and the Jurisdictional Threshold: On the Responsibility of Arms Transferring States Under the European Convention on Human Rights

Sammanfattning: The Arms Trade Treaty (ATT) as well as Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment (EU Common Position) impose substantive obligations on states for the purpose of minimising the adverse humanitarian effects of global arms trade. Notwithstanding these commitments, arms trade is an expanding business. Moreover, an increasing share of European arms are exported to states engaged in armed conflict. In Yemen, European arms transfers to partners of the Saudi-led Coalition have contributed to maintaining human rights abuses against the civilian population. The arms supplies to Saudi-led Coalition partners providing the contextual framework for discussion, this thesis explores possible avenues for holding European arms transferring states accountable for human rights violations in third states where such arms are used. The purpose is to ascertain liability directly under international human rights law (IHRL) and, more specifically, within the context of the European Convention on Human Rights (ECHR). In this respect, the thesis primarily employs a doctrinal research method which is applied critically with a view to establishing not only what the law is but also what it should be, i.e., a discussion de lege ferenda. To this end, the thesis mainly relies on subsidiary sources of international law such as legal doctrine and case law. Finding that arms transferring activities can expose individuals in third states to treatment contrary to ECHR standards, notably Article 2, the core issue of this thesis is determining to what extent the jurisdictional threshold in Article 1 ECHR could be overcome. For this purpose, a functional account of jurisdiction is introduced. Applying such a model of jurisdiction, the thesis argues that the issuance of an arms export license could engage the transferring state's responsibility under the ECHR for the conceivable effects occurring outside its territory. This rationale would only apply to those rights which the arms transferring states have a functional capacity to protect – including the right to life. Such an approach, under which the issuance of an export license may give rise to IHRL considerations, is argued to contribute to ensuring the humanitarian principles of the ATT and the EU Common Position. The legal argument could also be expanded so as to better capture transnational state conduct having ripple human rights effects in third states, directly under IHRL regimes.