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October 2001, after US officials presented findings on investigations into the attacks to the
North Atlantic Council, concluding that the Al-Qaeda terrorist network was responsible.
113. On 4 October 2001, the Allies agreed on a series of measures to assist the US-led
campaign against Al-Qaeda and related terrorism73. These include enhanced intelligence sharing
and cooperation, blanket over-flight clearances in accordance with the necessary air traffic
arrangements and national procedures, and access to ports and airfields for US and other Allied
craft for operations against terrorism.
114. In application of this agreement, certain NATO member-States granted US (and NATO
member States’) aircraft either blanket over-flight clearances for certain time-periods, or
overflight rights upon request74.
115. Article V of the North Atlantic Treaty does not contain an obligation for member States of
the Council of Europe to allow irregular transfers of prisoners or to grant blanket overflight
rights, for the purposes of fighting against terrorism. That treaty provision at most contains an
obligation to take measures, including cooperation and consent, into consideration; but leaves
any decision as to concrete measures to the appreciation of the State concerned of the necessity
of such measures in order to restore and maintain security. In addition, neither Article 5 of the
North Atlantic Treaty nor any Agreements in execution thereof can, or claim to, diminish the
obligations and responsibilities of member States of the Council of Europe under human rights
treaties.
SECTION II – THE INTERNATIONAL LEGAL OBLIGATIONS OF COUNCIL OF
EUROPE MEMBER STATES
A.
Council of Europe member States’ obligations in respect of arrests
by foreign authorities on their territory
116. A State party to the European Convention on Human Rights is presumed to exercise its
jurisdiction over its whole territory. Any arrest of a person by foreign authorities on the territory
of a Council of Europe member State without the agreement of this member State is a violation
of its sovereignty and is therefore contrary to international law. In addition, the now defunct
European Commission of Human Rights has stated that “an arrest made by the authorities of one
State on the territory of another State, without the prior consent of the State concerned, does not
only involve the State responsibility vis-à-vis the other State, but also affects that person’s
individual right to security under Article 5 § 1”.75
117. The European Court of Human Rights has clearly expressed how the responsibility of a
Council of Europe member State is engaged in relation to the arrest of an individual on its
territory by foreign authorities: irrespective of whether the arrest amounts to a violation of the
law of the State in which the suspect has been arrested, the responsibility of the host State is
73
The Commission has not been able to see the text of this agreement.
74
See US Department of Defense, Fact Sheet of 7 June 2002, International contributions to the War against
terrorism, at http://www.defenselink.mil/news/Jun2002/d20020607contributions.pdf.
75
European Court of Human Rights, Stocké v. Germany judgment of 12 October 1989, Series A no. 199,
opinion of the Commission, p. 24, § 167.
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