L’applicabilità extraterritoriale degli obblighi positivi in materia di diritti umani: il rimpatrio dei familiari dei foreign fighters francesi

This contribution deals with recent case-law developments regarding the extraterritorial applicability of States’ positive human rights obligations. In particular, it analyses the judgment H.F. and others v. France by the Strasbourg Court and the decision L.H. and others v. France by the UN Committee on the Rights of the Child, concerning the issue of the repatriation of French foreign fighters’ family members (especially minors), who were detained in Syrian camps. In this respect, the CRC affirmed France’s jurisdiction in relation to the complained grievances by adopting a very expansionary, functional approach. On the contrary, the ECtHR confirmed its restrictive position on the matter, not recognising the exercise of State jurisdiction in relation to Article 3 ECHR, as it considered France’s capability to repatriate the persons concerned to be insufficient for this purpose. However, it did establish the existence of a jurisdictional link in relation to Article 3(2) of Protocol No. 4 to the ECHR (right to enter one’s own country), but then noted that the provision only imposes a procedural, not a substantive, obligation with regard to repatriation from the Syrian camps. In the light of the analysis, therefore, this contribution aims to explore the consequences of these different approaches, and in particular to
question the implications of the extension of the notion of jurisdiction under the functional paradigm in the specific context of positive obligations of prevention and protection.