Human Rights Imperialists: The Extraterritorial Application of the European Convention on Human Rights 9781509914739, 9781509914760, 9781509914746

To what extent do a state’s obligations under the European Convention on Human Rights apply beyond its territorial borde

288 89 5MB

English Pages [255] Year 2019

Table of contents :
Acknowledgements
Contents
Table of Cases
Introduction
I. The Extraterritorial Question
II. The Strasbourg Approach
III. The Claims of the Book
IV. The Structure of the Book
1. Creating Human Rights ‘Jurisdiction’
I. Introduction
II. The Drafting of Article 1
III. The Problem with 'Jurisdiction'
IV. Creating Human Rights Jurisdiction
V. Conclusion
2. Interpreting the European Convention on Human Rights
I. Introduction
II. The Convention's Interpretive Parties
III. The 'Correct' Process of Interpretation
IV. Interpretive Communities
V. Article 1's Interpretive Communities
VI. Conclusion
3. Incremental Normalisation: The Strasbourg Approach 1953–2001
I. Introduction
II. The Point of Departure
III. Judicial Minimalism
IV. Enhanced Justification
V. Consideration of Context
VI. Conclusion
4. Deconstruction and Reconstruction: The European Court of Human Rights 2001–10
I. Introduction
II. Judicial Deconstruction: Banković v Belgium and Others
III. Judicial Reconstruction
IV. An Unsettled Community
5. The Contracting Parties: Competing for Meaning
I. Introduction
II. Applying the ECHR to Iraq
III. Three Categories of State Arguments
IV. State Acceptance of the Convention’s Extraterritorial Application
V. Conclusion
6. National Courts: The Systemisation of ‘Jurisdiction’
I. Introduction
II. The Five Bases of Jurisdiction
III. Conclusion
7. The European Court of Human Rights: Strategic (Re-)alignment
I. Introduction
II. Personal Jurisdiction: ‘State Agent Authority and Control’
III. Spatial Jurisdiction
IV. Applying the Convention Abroad
V. Conclusion: Temporary Stability
8. A Return to the Drawing Board
I. Introduction
II. Guiding Principles
III. Conservative Options
IV. Progressive Options
V. A Proposal
VI. The Communities
VII. Conclusion
Conclusion: Human Rights Imperialists
Bibliography
Index

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HUMAN RIGHTS IMPERIALISTS To what extent do a state’s obligations under the European Convention on Human Rights apply beyond its territorial borders? Are soldiers deployed on overseas operations bound by the human rights commitments of their home state? What about other agents, like the police or diplomatic and consular services? If a state’s obligations do apply abroad, are they to be upheld in full or should they be tailored to the situation at hand? Few topics have posed more of a challenge for the European Court of Human Rights than this issue of the Convention’s extraterritorial application. This book provides a novel understanding on why this is by looking at the behaviour of those principally tasked with interpreting the treaty: the Strasbourg Court, state parties, and national courts. It offers a theory for how these communities operate: what motivates, constrains and ultimately shapes their interpretive practices. Through a detailed analysis of the jurisprudence, with a particular focus on British authorities and judges during and after the Iraq War (2003), the book provides an explanation of how the interpretation of extraterritorial obligations has developed over time and how these obligations are currently understood. Some have argued that it is imperialistic to apply the Convention extraterritorially. If this is the case, the focus of this book is on those ‘imperialists’ who have interpreted European human rights law to extend beyond a state’s borders, as it is with them that any lasting solution to the challenge will be found.

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Human Rights Imperialists The Extraterritorial Application of the European Convention on Human Rights

Conall Mallory

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © Conall Mallory, 2020 Conall Mallory has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Mallory, Conall, author. Title: Human rights imperialists : the extraterritorial application of the European Convention on Human Rights / Conall Mallory. Description: Oxford ; New York : Hart, 2020. | Based on author thesis (doctoral – Northumbria University, 2014) issued under title: Exporting rights : extraterritorial obligations in the European Convention on Human Rights after the Iraq conflict (2003). | Includes bibliographical references and index. Identifiers: LCCN 2019052585 (print) | LCCN 2019052586 (ebook) | ISBN 9781509914739 (hardback) | ISBN 9781509914753 (Epub) Subjects: LCSH: European Court of Human Rights. | Convention for the Protection of Human Rights and Fundamental Freedoms (1950 November 5) | Exterritoriality. | International criminal law—Europe. | International and municipal law—Europe. Classification: LCC KJC5138 .M35 2020 (print) | LCC KJC5138 (ebook) | DDC 341.4/8094—dc23 LC record available at https://lccn.loc.gov/2019052585 LC ebook record available at https://lccn.loc.gov/2019052586 ISBN: HB: ePDF: ePub:

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Acknowledgements

T

he idea for this book began while undertaking my PhD research into the impact of a spate of Iraq War cases on the extraterritorial application of human rights laws. I owe an immense debt of gratitude to my supervisors, Rhona Smith and Sue Farran, for shepherding me through that project. I am also indebted to my external examiners Brice Dickson and Keith Ewing for their feedback and encouragement. On obtaining my PhD, my attention remained in this area. My doctoral research had focused on ‘what’ the impact of these cases had been, and yet, I became engrossed in the question of ‘why’. Why did courts take small steps in some of their judgments and larger steps in others? Why would they accept one argument and ignore another? Why did the other parties involved in the endeavour behave as they did? In clarifying my ideas on this, I was assisted by numerous conversations with colleagues and friends. Rebecca Moosavian, David McGrogan, Adam Ramshaw and Richard Mullender have been of particular assistance in helping me to try to see the bigger picture. Bethany Shiner and Colin Murray have inputted with candid reflections and advice. Stuart Wallace has been a terrific co-author on a number of projects and a valuable sounding board. His insightful feedback on early drafts of chapters has been instrumental. I am also very fortunate to work with a host of talented and generous colleagues at Newcastle Law School. Ole Pedersen, Ruth Houghton and Hélène Tyrell have all provided invaluable comments on individual chapters. Sean Molloy found the time to read the draft manuscript and set me right on a number of issues. At Hart Publishing, I am greatly indebted to both Sinead Moloney and Sasha Jaweed for their patience and faith. This book could not have been completed without the support of my family. Both my father and brother Fintan have read a number of chapters. My mother, sister Deirdre and youngest brother Tom have all been a wonderful distraction. My in-laws, Mac and Lynne, have also been a constant source of support. My heroes, however, have been my wife Phillippa and daughter Niamh. Their unrelenting patience, support and affection have sustained me, and it is to them that this book is dedicated.

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Contents Acknowledgements��v Table of Cases�� xi Introduction��1 I. The Extraterritorial Question��3 II. The Strasbourg Approach��8 III. The Claims of the Book��10 IV. The Structure of the Book��12 1. Creating Human Rights ‘Jurisdiction’��15 I. Introduction��15 II. The Drafting of Article 1��15 A. Territory��17 B. The Move Towards ‘Jurisdiction’��18 C. Preliminary Comments��21 III. The Problem with ‘Jurisdiction’��23 IV. Creating Human Rights Jurisdiction��28 A. The Inevitability of the Mission��28 B. Giving Meaning to the Convention��30 V. Conclusion��32 2. Interpreting the European Convention on Human Rights��34 I. Introduction��34 II. The Convention’s Interpretive Parties��35 A. Primary Interpreters��36 B. Secondary Interpreters��39 III. The ‘Correct’ Process of Interpretation��41 IV. Interpretive Communities��44 A. Purposive Enterprise��45 B. Bounded Argument Space��47 V. Article 1’s Interpretive Communities��48 A. The Strasbourg Judicial Organs��49 B. Contracting Parties��52 C. National Courts��54 D. The Interaction of Interpretive Communities��59 VI. Conclusion��60

viii Contents 3. Incremental Normalisation: The Strasbourg Approach 1953–2001��61 I. Introduction��61 II. The Point of Departure��62 A. Interpretive Moves��64 III. Judicial Minimalism��65 A. Incrementalism��66 B. Retaining Flexibility��69 C. Minimalism and the Purposive Enterprise��74 IV. Enhanced Justification��76 A. Spatial Jurisdiction��77 B. Justifying Progression��81 V. Consideration of Context��83 VI. Conclusion��86 4. Deconstruction and Reconstruction: The European Court of Human Rights 2001–10��88 I. Introduction��88 II. Judicial Deconstruction: Banković v Belgium and Others��89 A. Defining Jurisdiction��90 B. Interpretive Moves��93 C. Banković and the Purposive Enterprise��98 III. Judicial Reconstruction�� 101 A. Legal Space�� 101 B. The Role of Public International Law�� 104 C. Dividing and Tailoring�� 105 D. Cause and Effect�� 107 E. Ongoing Moves�� 109 IV. An Unsettled Community�� 111 5. The Contracting Parties: Competing for Meaning�� 115 I. Introduction�� 115 II. Applying the ECHR to Iraq�� 117 A. A Costly Gamble�� 118 III. Three Categories of State Arguments�� 121 A. Orthodox Legal Debate�� 122 B. Orthodox Arguments in the Iraq Litigation�� 125 C. Politico-legal Arguments�� 128 D. Politico-legal Arguments in the Iraq Litigation�� 129 E. Unacceptable Submissions�� 132 F. Unacceptable Submissions Post-Iraq: Extraterritorial Derogations?�� 134 G. Preliminary Comments�� 137 IV. State Acceptance of the Convention’s Extraterritorial Application�� 137 V. Conclusion�� 139

Contents ix 6. National Courts: The Systemisation of ‘Jurisdiction’�� 141 I. Introduction�� 141 A. In the Shadow of Banković��142 II. The Five Bases of Jurisdiction�� 145 A. Quasi-territorial Jurisdiction�� 145 B. Unpacking Quasi-territorial Jurisdiction�� 146 C. Spatial Jurisdiction�� 153 D. Jurisdiction Over Soldiers�� 158 E. Jurisdiction Through Control�� 161 F. Domestic Decisions�� 162 III. Conclusion�� 163 7. The European Court of Human Rights: Strategic (Re-)alignment�� 165 I. Introduction�� 165 A. Al-Skeini v UK: Systematising Article 1�� 166 II. Personal Jurisdiction: ‘State Agent Authority and Control’�� 168 A. Public Powers�� 169 B. Jurisdiction Through Force�� 176 C. Diplomatic and Consular Agents�� 184 D. Soldiers�� 186 III. Spatial Jurisdiction�� 188 A. Effective Control of an Area�� 188 B. Convention ‘Legal Space’�� 192 IV. Applying the Convention Abroad�� 193 V. Conclusion: Temporary Stability�� 198 8. A Return to the Drawing Board�� 200 I. Introduction�� 200 II. Guiding Principles�� 201 III. Conservative Options�� 203 IV. Progressive Options�� 204 V. A Proposal�� 206 A. Negative Obligations�� 207 B. Positive Obligations�� 209 VI. The Communities�� 211 A. Contracting Parties�� 211 B. National Courts�� 214 C. The Strasbourg Community�� 215 VII. Conclusion�� 217 Conclusion: Human Rights Imperialists�� 218 Bibliography�� 222 Index�� 233

x

Table of Cases UK Cases Al-Waheed v Ministry of Defence [2017] UKSC 2�� 154, 167, 193–95, 197, 199 Bank Mellat v Her Majesty’s Treasury (No 2) (2013) UKSC 39 ��56 Manchester City Council v Pinnock [2010] UKSC 45��58 N v Secretary of State for the Home Department [2005] UKHL 31��56 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 �� 143 R (Al-Saadoon and Others v Secretary of State for Defence) [2015] EWHC 715 ��10–11, 108, 153, 171–72, 174–75, 179, 182–83, 193, 198 R (Al-Saadoon and Others v Secretary of State for Defence) [2016] EWCA Civ 811 �� 9, 108, 165, 172, 173–76, 179, 182–83, 190, 192–93, 198 R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643 ��63 R (El-Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 �� 4, 209 R (K and Others) v Secretary of State for Defence and Another v Secretary of State for Defence [2016] EWCA Civ 1149�� 4, 168, 171 R (on the Application of Al-Jedda) v Secretary of State for Defence [2005] 1809 (Admin) EWHC �� 149 R (on the Application of Al-Jedda) v Secretary of State for Defence [2006] 327 EWCA Civ�� 149 R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust Intervening) [2005] 2 WLR 1401 �� 97, 104, 110, 119–20, 126–27, 131, 141, 145–46, 154, 156–57 R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust and Another Intervening) [2006] 3 WLR 508 �� 6, 20, 29, 74, 77, 119, 126, 139, 142–45, 154, 156–57, 161–63, 166, 169, 182 R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust and Others Intervening) [2007] UKHL 26�� 2, 126–27, 143–45, 149, 154, 156–57, 218

xii Table of Cases R (on the Application of Faisal Attiyah Nassar Al-Saadoon, Khalaf Hussain Mufdhi) [2008] EWCA Civ 1528�� 149 R (on the Application of Faisal Attiyah Nassar Al-Saadoon, Khalaf Hussain Mufdhi) v Secretary of State for Defence [2009] EWCA Civ 7��10, 147 R (on the Application of Gentle and Another) v Prime Minister and Others [2008] 1 AC 1356��5 R (on the Application of Long) v Secretary of State for Defence [2015] EWCA Civ 770 �� 188 R (on the Application of Quark Fishing Ltd v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2004] EWCA Civ 527 ��127, 141 R (on the Application of Quila v Secretary of State for the Home Department [2011] UKSC 45 ��58 R (on the Application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 581�� 184 R (on the Application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 �� 4, 185, 202 R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner [2009] 3 WLR 1099 ��22, 145 R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1��4, 20, 25, 71, 145, 147, 149, 155–56, 160–61, 163, 172–73, 186 R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147��35 R(B) v Secretary of State for Foreign and Commonwealth Affairs [2005] EWCA Civ 1344 ��127, 141 Re McCaughey and Another [2011] UKSC 20��56 Smith v Ministry of Defence [2013] UKSC 41�� 4, 9, 166, 186–88, 196, 199, 202 Smith v Ministry of Defence [2012] EWCA Civ 1365�� 170 T-Mobile (UK) Ltd v Office of Communications [2008] EWCA Civ 1373��23 European Cases Al-Adsani v UK (2001) 34 EHRR 273�� 41, 94 Al-Jedda v UK (2011) 53 EHRR 23.....................................3, 149, 165, 178, 221 Al-Saadoon and Mufdhi v UK (2010) 51 EHRR 9�� 150, 153, 177, 195 Al-Skeini v UK (2011) 53 EHRR 18�� 1, 3–4, 10, 112, 117, 124, 126, 131–32, 154, 165–68, 171–74, 176–78, 184, 190, 192, 196, 200, 205, 207, 212, 216, 221

Table of Cases xiii Andreas Manitaras and Others v Turkey App No 54591/00 (ECtHR, 3 June 2008)��103, 138 Andreou v Turkey App No 45653/99 (ECtHR, 3 June 2008)�� 108–09, 125, 180, 194, 199, 205 Assanidze v Georgia (2004) 39 EHRR 32�� 204 Banković and Others v Belgium and Others (2007) 44 EHRR SE5�� 3, 13, 41, 64, 88–105, 107–14, 120–21, 124, 127–29, 137, 139, 142–46, 152–53, 155–57, 166, 168–70, 180, 186, 192–95, 197, 202, 204, 208, 216, 221 Beard v UK (1998) 25 EHRR CD28 ��97 Behrami v France (2007) 45 EHRR SE10�� 3, 129, 137, 139 Belgian Linguistics (No 2) (1968) 1 EHRR 252��74 Ben El Mahi v Denmark App No 5853/06 (ECtHR,11 December 2006) ��94 Big Brother Watch and Others v UK App No 58710/13, 62322/14 and 24960/15 (ECtHR, 13 September 2018) ��211, 218 Catan and Others v Russia and Moldova (2013) 57 EHRR 4�� 124–25, 191 Centrum för Rättvisa v Sweden App No 35252/08 (ECtHR, 19 June 2018)�� 211 Chagos Islanders v UK (2013) 56 EHRR SE15�� 165, 191–92, 208 Chahal v UK (1997) 23 EHRR 413�� 151 Chigarov v Armenia (2016) 63 EHRR 9 ��3, 190–91, 193 Christine Goodwin v UK (2002) 35 EHRR 447 ��42 Chrysostomos, Papachrysostomos and Loizidou v Turkey App Nos 15299/89, 15300/89 and 15318/89) (EComHR, 4 March 1991)��78 Cyprus v Turkey (1975) 31 DR 125 ��91, 221 Cyprus v Turkey (1982) 4 EHRR 482 �� 70, 73, 81, 91, 98, 124, 138, 157, 205 Cyprus v Turkey (1997) 23 EHRR 244 �� 138 Cyprus v Turkey (2002) 35 EHRR 30 ��77, 79–80, 83, 91–92, 105, 111 Cyprus v Turkey App No 8007/77 (EComHR, 10 July 1978) 13 DR 85�� 138 Djavit An v Turkey (2005) 40 EHRR 45�� 103 Djokaba Lambi Longa v The Netherlands (2013) 56 EHRR SE1��4 Drozd and Janousek v France and Spain (1992) 14 EHRR 745��63, 68, 71, 96, 124, 145, 170 El-Masri v Former Yugoslav Republic of Macedonia (2013) 57 EHRR 25��3 Freda v Italy (1980) 21 DR 250�� 72–73, 194 Gentilhomme and Others v France App Nos 48205/99, 48207/99 and 48209/99 (ECtHR, 14 May 2002)�� 170 Georgia v Russia (II) (2012) 54 EHRR SE10��3 Glor v Switzerland App No 3444/04 (ECtHR, 30 April 2009) ��42

xiv Table of Cases Golder v UK (1979–80) 1 EHRR 524 ��41, 82, 84, 94 Handyside v UK (1979–80) 1 EHRR 737 �� 128 Hassan v UK App No 29750/09 (ECtHR, 16 September 2014) �� 165, 178–79, 190, 197, 213 Hirsi Jamaa and Others v Italy (2012) 55 EHRR 21��4, 178, 180, 218, 221 Hussein v Albania and Others (2006) 42 EHRR SE16�� 104, 189–90 Ilascu and Others v Moldova and Russia (2004) 40 EHRR 46��3 Ilse Hess v UK (1973) 2 DR 72�� 64, 90 Ireland v UK (1978) 2 EHRR 25��42 Isaak and Others v Turkey App No 44587/98 (ECtHR, 28 September 2006) �� 101, 110, 125, 138, 145, 183, 199, 201 Isayeva v Russia (2005) 41 EHRR 38��1 Issa and Others v Turkey (2004) 41 EHRR 27��100, 102–04, 109–10, 125, 143, 145, 157, 168, 177, 186, 201 Jaloud v Netherlands (2015) 60 EHRR 29��5, 10, 112, 129, 165, 168, 180–81, 189, 196, 199, 201, 212, 221 Kallis and Androulla Panayi v Turkey App No 45388/99 (ECtHR, 27 October 2009)�� 111 Kalogeropoulou and Others v Greece and Germany App No 59021/00 (ECtHR, 12 December 2002) �� 169 Kingdom of Greece v UK App No 176/56 (EComHR, 2 June 1956) ��74 Kjeldsen, Busk Madsen, and Pedersen v Denmark (1976) 1 EHRR 711 ��82 Klaus Altmann (Barbie) v France (1984) 37 DR 230��72 Lawless v Ireland (No 3) (1979–80) 1 EHRR 15�� 136 Loizidou v Turkey (Merits) (1997) 23 EHRR 513 �� 78–81, 83, 91, 100, 154 Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99 �� 78–79, 91, 95–97, 111, 133–34, 139 Mansur Pad App No 60167/00 (ECtHR, 28 June 2007) ��103, 107 McCann v UK (1996) 21 EHRR 97��1 Medvedyev and Others v France (2010) 51 EHRR 39 �� 4, 108, 177 ND and NT v Spain (ECtHR, 8675/15 and 8697/15)��178, 211, 218 Öcalan v Turkey (2003) 37 EHRR 10 �� 102 Opuz v Turkey (2010) 50 EHRR 28��37 Pisari v Moldova and Russia App No 41239/12 (ECtHR, 21 April 2015) �� 112, 181–82, 201 Pritchard v UK App No 1573/11 (ECtHR, 18 March 2014)�� 187 Quark Fishing Ltd v UK (2007) 44 EHRR SE4 �� 191 Reinette v France (1989) DR 63�� 72–73, 194 Sánchez Ramirez v France (1996) 86 DR 155�� 72–73, 195 Soering v UK (1989) 11 EHRR 439 ��42, 82, 97, 151 Stocké v Germany (1991) 13 EHRR CD126 �� 68, 71

Table of Cases xv Sunday Times v UK (1979) 2 EHRR 245��97 Treska v Albania and Italy App No 26937/04 (ECtHR, 29 June 2006)��106, 169 Tyrer v UK (1979–80) 2 EHRR 1�� 42, 64, 84 Vearncombe v UK and Germany (1989) 59 DR 186�� 123 WM v Denmark (1993) 15 EHRR CD28�� 68, 72, 86 Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55��82 X and Y v Switzerland (1977) 9 DR 57��67, 71, 138, 145, 170 X et al v Belgium App No 1065/61 (EComHR, 30 May 1961) ��63 X v Federal Republic of Germany App No 1611/62 (EComHR, 25 September 1965)�� 62–64, 66–71, 137 Xenides-Arestis v Turkey App No 46347/99 (ECtHR, 22 December 2005)�� 103 International Cases Armando Alejandre JR., Carlos Costa, Mario De La Pena and Pablo Morales v Cuba, Report No 86/99, Case 11.589, (29 September 1999)�� 194 Delia Saldias de Lopez v Uruguay, Communication No 52/1979, UN Doc CCPR/C/OP/1�� 109 Liphar v The Queen (1999) 200 CLR 485 ��24 SS Lotus (Fr v Turk), 1927 PCIJ (Ser A) No 10 (7 September)��26 Young v Attorney General [2018] NZCA 307��29

xvi

Introduction

O

n the evening of 20 November 2003, a mother and father were preparing dinner in their apartment at the Institute of Education in Basra. The father, Hameed, was an unpaid night porter at the facility and he lived there with his wife Hannan and their young children. The parents prepared the meal in the kitchen before sitting down at the dinner table at around 8 pm. Within seconds, the room was lit up as bullets entered through a window, striking one of the children in the arm and Hannan in both her head and ankles. She was rushed to hospital, but was pronounced dead on arrival. She was an unintended victim of a gunfight that had broken out on the campus between members of the British 1st Battalion The King’s Regiment and a number of gunmen. It was unclear who had fired the lethal shots that killed her. When the colonel with responsibility for the regiment reviewed the statements of the soldiers involved and the brief report into the incident, he duly concluded that it had fallen within the rules of engagement and required no further investigation. This was confirmed by the Brigadier in charge of the unit and the case was closed.1 What then for Hameed and his children? Was this brief response all that they would receive to explain why they had lost a wife and mother? The invasion had long since ended and this was now an Iraq under occupation; surely some effort should have been taken to safeguard civilians before engaging in such a gun battle.2 If not, then why not, and who could give them these answers? Could an investigation that remained entirely within the military chain of command, overseen solely by the commanding officers of the soldiers alleged to be responsible, really be sufficient? The answers to these questions lay a continent away in the courtrooms of Europe and through the application of the European Convention on Human Rights (hereinafter ECHR or ‘the Convention’).3 The Article 2 right to life includes a procedural obligation that requires an effective and independent official investigation when individuals are killed in the course of the use of force by state agents.4 This would not only give Hameed and his c hildren 1 Hameed Shmailawi was the third applicant in the case of Al-Skeini v UK (2011) 53 EHRR 18 [43]–[46]. 2 ibid [170]. The Iraq invasion commenced on 20 March 2003. Major combat operations concluded on 1 May 2003. Thereafter the occupation of Iraq lasted until 28 June 2004. 3 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 222 (ECHR). 4 See generally: McCann v UK (1996) 21 EHRR 97 [161]; Isayeva v Russia (2005) 41 EHRR 38 [209]. See also Hannah Russell, The Use of Force and Article 2 of the ECHR in Light of European Conflicts (Hart Publishing, 2017) 121–55; Noëlle Quénivet, ‘The Obligation to Investigate after a Potential Breach of Article 2 ECHR in an Extra-territorial Context: Mission Impossible for the Armed Forces?’ (2019) 37(2) Netherlands Quarterly of Human Rights 119.

2 Introduction the answers they desired, but potentially compensation for the distress they had suffered in waiting for them. Yet there was a problem. Had Hannan been shot on the streets of Belfast, Glasgow, London or anywhere else within the UK, this obligation would have arisen automatically, but because her death had occurred in Iraq, Hameed’s representatives would first have to demonstrate that the Convention’s obligations had applied to British forces operating there. This pursuit therefore turned on a phrase adopted 3,000 miles from Basra and over 50 years earlier by the drafters of the ECHR. That expression, ‘within their jurisdiction’, indicates the geographical scope of the Convention’s application.5 If an individual is within the jurisdiction of a Contracting Party to the treaty, then no matter where in the world they are, its rights apply to them. If Hameed were unable to demonstrate that his wife had been within British jurisdiction at the time of her death, then there would be no corresponding obligation on the British state to fulfil these rights. Establishing the exercise of jurisdiction was therefore key, for it determined, to quote Lady Hale, not whether Hameed and his family were ‘entitled to our sympathy and our respect but whether they are entitled to a remedy before the courts’.6 This book is directly concerned with this phrase ‘within their jurisdiction’ in Article 1 ECHR: how it has developed, how it is defined now and whether that understanding is appropriate. In particular, I am concerned with the instances when a state exercises jurisdiction outside of its territorial borders. A considerable amount has been written on this topic, the extraterritorial application of human rights, in recent years. Much of this literature has focused on the intersection between threshold provisions like Article 1 and the principle of universality as a foundation upon which the international human rights regime is constructed. While I will also address these two issues, the central focus of my study lies elsewhere, with the parties who generate meaning through their interpretations. If, as some have argued, it is imperialistic to apply human rights obligations extraterritorially, my attention lies with the human rights imperialists who have, over the course of the Convention’s 70-year history, construed its obligations to apply abroad.7 To quote Bianchi, my concern lies with: ‘Who sets the destination and why and how one gets there.’8 My argument is that rather than solely concerning ourselves with how Article 1 can be read through a preoccupation with the text, or how it should be read through a fixation on the principle of universality, the first concern should be how it has been read. If we understand what motivates, constrains

5 European Convention on Human Rights 1950, art 1. 6 R (on the Application of Al-Skeini and Others) v Secretary of State for Defence [2007] UKHL 26 [92] (Baroness Hale). 7 Paul Arnell suggests the extraterritorial application of human rights could be ‘perceived as a form of neo-imperialism’; Paul Arnell, ‘Human Rights Abroad’ (2007) 16(2) Nottingham Law Journal 1, 17–18. See also R (Al-Skeini and Others) (HL) (n 6) [78] (Lord Rodger), [129] (Lord Brown). 8 Andrea Bianchi, International Law Theories (Oxford University Press, 2016) 6.

The Extraterritorial Question 3 and compels those who primarily deal with the interpretation and application of the treaty, we can follow this with considerations of textual applicability and thereafter fill the hollow provision with normative content that may be acceptable to all those with the primary role of engaging with the Convention. In doing so, we may find a more lasting solution to the very real practical and normative concerns that the extraterritorial question poses. In this section I will introduce these concerns, before reflecting on how the Strasbourg judicial organs of the European Court of Human Rights (ECtHR) and previously the European Commission on Human Rights (hereinafter Strasbourg Organs) have responded to them, and then outlining in more detail what my argument is and how it will be advanced. I. THE EXTRATERRITORIAL QUESTION

Despite enjoying a relatively low-key position in the Convention’s early decades, the question of the extraterritorial application of the treaty has grown in significance since the 1990s as the Strasbourg Organs have increasingly been called upon to delineate the boundaries of where a state’s obligations under the ECHR will apply. This increase can be attributed to a number of different factors. The accession to the Convention of a host of Eastern states with fractious relationships with their neighbours,9 an active practitioner base ready to utilise the Convention to remedy grievances10 and a period of increasing interventionism by Western states, both for humanitarian purposes and under the banner of the ‘war on terror’, have all contributed to growing litigation in this area.11 This last factor is of particular importance with focus in recent years drawn to the extraordinary rendition of terrorist suspects12 and the invasion and occupation of other states.13 These examples may suggest that the extraterritorial question is only relevant to the use of military force by Contracting Parties and yet, despite the military prevalence in the ECtHR’s recent jurisprudence, it is only one part of

9 eg, Chigarov v Armenia (2016) 63 EHRR 9; Georgia v Russia (II) (2012) 54 EHRR SE10; Ilaşcu and Others v Moldova and Russia (2005) 40 EHRR 46. 10 A significant number of cases in recent years were brought by the now disbanded Birminghambased law firm Public Interest Lawyers. 11 NATO interventions in former Yugoslav territories: Banković and Others v Belgium and Others (2007) 44 EHRR SE5; Behrami v France (2007) 45 EHRR SE10. Cases emerging from the Iraq conflict are considered in depth in chs 6 and 7. See also Rick Lawson, ‘Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights’ in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 84; Tarek Abdel-Monem, ‘How Far Do the Lawless Areas of Europe Extend? Extraterritorial Application of the European Convention on Human Rights’ (2004) 14(2) Journal of Transnational Law and Policy 159, 159; Julian Samiloff, ‘Violations Abroad’ (2007) 157 NLJ 1021, 1021. 12 El-Masri v Former Yugoslav Republic of Macedonia (2013) 57 EHRR 25. 13 Al-Skeini (ECtHR) (n 1); and Al-Jedda v UK (2011) 53 EHRR 23.

4 Introduction a much wider issue. In effect, the extraterritorial question has the potential to concern any state action beyond its territorial borders. It is equally important in respect of a state’s conduct during maritime operations,14 detentions at international tribunals15 and the treatment of employees.16 Similarly, it gives rise to ambiguities around the relationship between the citizen and the state in a world of weakening borders and increasing migration.17 Thus, it can have implications for the decision-making of both diplomatic and consular officials.18 Future concerns will no doubt emerge relating to a changing climate, an increase in data sharing, and joint police operations. In the military sector, the questions are indeed multiplying and becoming ever more complex. While the decades-long wrangling over whether human rights laws apply during armed conflict appears to be drawing to a close, some issues remain unanswered.19 There are disputes around the application of human rights obligations to soldiers and other military operatives,20 and the isolated use of force by the agent of one state on the territory of another.21 Increased convergence between human rights and humanitarian law often takes place extraterritorially, giving rise to issues relating to prisoner handling and during periods of occupation.22 More significant is how the subject will develop in line with technological advances, with the evolution of autonomous weaponry and increases in artificial intelligence posing new challenges. Both within and outside of military affairs, the rise in recognition of the extraterritorial application of human rights laws has also opened new pathways for litigation. Actions brought under the ECHR and the Human Rights

14 Hirsi Jamaa and Others v Italy (2012) 55 EHRR 21; Medvedyev and Others v France (2010) 51 EHRR 39. 15 Djokaba Lambi Longa v The Netherlands (2013) 56 EHRR SE1. 16 R (K and Others) v Secretary of State for Defence and Another v Secretary of State for Defence [2016] EWCA Civ 1149 (CA). 17 R (El-Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 (Admin). 18 R (on the Application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 (SC). 19 See generally Stuart Wallace, The Application of the European Convention on Human Rights to Military Operations (Cambridge University Press, 2019); Iain Scobbie, ‘Principle or Pragmatics? The Relationship between Human Rights Law and the Law of Armed Conflict’ (2009) 14 Journal of Conflict and Security Law 449; Louise Doswald-Beck, Human Rights in Times of Conflict and Terrorism (Oxford University Press, 2011); Chandra Lekha Sriram, Olga Martin-Ortega and Johanna Herman, War, Conflict and Human Rights: Theory and Practice (Routledge, 2014). 20 Smith v Ministry of Defence [2013] UKSC 41. This was the second of two cases titled Smith that specifically concerned the application of Convention obligations to soldiers. For this reason, it is referred to as Smith (2), with the earlier litigation culminating in R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 referred to as Smith (1); R (on the A pplication of Long) v Secretary of State for Defence [2015] EWCA Civ 770. 21 Take, for instance, the poisoning of former Spy Yuri Skirpal by Russian agents; BBC, ‘Russian Spy: What Happened to Sergei and Yulia Skripal?’ (27 September 2018), https://www.bbc.co.uk/ news/uk-43643025. 22 Al-Skeini (ECtHR) (n 1).

The Extraterritorial Question 5 Act 1998 (HRA) cut through justiciability barriers that could otherwise block their litigation under other aspects of domestic law.23 This has meant that events taking place both on the battlefield and in other areas of foreign policy are now potentially subject to review in a way that could not previously have been countenanced.24 The extraterritorial question’s practical importance is also directly connected to its relevance in relation to a state’s responsibility for an internationally wrongful act, although the two should not be confused as the same thing. In order for a state to be responsible, there must both be an obligation and conduct that is attributable to it.25 The extraterritorial question squarely addresses whether an obligation exists. For the ECHR, if a states exercises jurisdiction in accordance with Article 1, then an obligation arises.26 The question of attribution is separate and relates instead to whether a state can be held responsible for a particular individual’s action; so, for instance, it could distinguish between the actions of state agents from those of private individuals or where such measures are undertaken on behalf of an international organisation. While the ECtHR has a developing body of jurisprudence on both attribution and state responsibility that connects to the application of the Convention, I do not seek to engage with these issues directly.27 In sum, the issue of Article 1 jurisdiction stands out as having considerable practical importance for the 47 Contracting Parties to the ECHR and yet the issue, its interpretation and application, tells us an enormous amount more about the Convention system than merely where its rights apply. Litigation concerning jurisdiction under Article 1 has uncovered significant challenges in the normative foundations of the entire enterprise. The topic is what Waldron refers to as an ‘archetype’. He explains: The idea of an archetype, then, is the idea of a rule or positive law provision that operates not just on its own account, and does not just stand simply in a cumulative relation to other provisions, but that also operates in a way that expresses or epitomizes

23 Baroness Hale famously noted in Gentle: ‘As I understand it, it is now common ground that if a Convention right requires the court to examine and adjudicate upon matters which were previously regarded as non-justiciable, then adjudicate it must.’ See R (on the Application of Gentle and Another) v Prime Minister and Others [2008] 1 AC 1356 [60]. See also Virginia Mantouvalou, ‘Extending Judicial Control in International Law: Human Rights Treaties and Extraterritoriality’ (2005) 9(2) International Journal of Human Rights 147. 24 See Lord Mance, ‘Justiciability’ (2018) 67(4) ICLQ 739. 25 International Law Commission, Draft Articles on State Responsibility for Internationally Wrongful Acts, with Commentaries (2001) Official Records of the General Assembly, Fifty-sixth Session, Supp No 10, UN Doc A/56/10, art 2. 26 Ilaşcu and Others v Moldova and Russia (n 9). 27 See elsewhere Jane Rooney, ‘The Relationship between Jurisdiction and Attribution after Jaloud v Netherlands’ (2015) 62(3) Netherlands International Law Review 407; Aurel Sari, ‘Untangling Extra-territorial Jurisdiction from International Responsibility in Jaloud v Netherlands: Old Problem, New Solutions’ (2014) 53 Military Law & the Law of War Review 287.

6 Introduction the spirit of a whole structured area of doctrine, and does so vividly, effectively, publicly, establishing the significance of that area for the entire legal enterprise.28

The extraterritorial question is an archetype in the ECHR system as it has ‘a significance stemming from the fact that it sums up or makes vivid to us the point, purpose, principle, or policy of a whole area of law’.29 It peels back layers of lofty rhetoric and commitments towards universal human rights protection, forcing those engaged in the system to identify the limits of where the legal obligations of human rights apply and, in turn, who they apply to. This then gives a distinct platform to the debate on universality and the justifiable qualifications that can be made to this founding principle of human rights law. If human rights are ‘understood to be the rights that one has simply because one is human’, then all humans should benefit from them without distinction.30 Conversely, the extraterritorial question forces us to recognise that there are limits to which a state can be obligated to ensure an individual’s rights. As Sedley LJ put it in a pivotal case concerning the extraterritorial question at the UK Court of Appeal, this is where universalist arguments meet ‘an increasingly steep terrain of p ractical reality’.31 The position of universality in the human rights movement has experienced challenges before, but of a different nature. The relationship between a truly universal recognition of human rights, and a respect for cultural sympathies, practices and beliefs, continues to be heavily debated.32 This is particularly the case in societies where discriminatory practices towards homosexuality, gender equality and recognition, and religious tolerance, are commonplace. The extraterritorial question introduces another angle to this debate. Whereas the cultural relativist argument would largely accept in the absence of a valid reservation that human rights obligations prima facie apply, with the scope of those obligations being qualified by cultural concerns, the extraterritorial question challenges the notion of universality based on location, proximity and a relationship with the state, in order to query whether any obligation ever existed in the first place.33 28 Jeremy Waldron, Torture, Terror and Trade-offs: Philosophy for the White House (Oxford University Press, 2012) 228. On the absolute prohibition against torture as an archetype, see Natasa Mavronicala, ‘Torture and Othering’ in Benjamin Goold and Liora Lazarus (eds), Security and Human Rights, 2nd edn (Hart Publishing, 2019) 28–29. 29 Waldron (n 28) 228. 30 Jack Donnelly, ‘The Relative Universality of Human Rights’ (2007) 29 Human Rights Quarterly 281, 282–83. 31 R (on the Application of Al-Skeini and Others) v Secretary of State for Defence [2006] 3 WLR 508 (CA) [189] (Sedley LJ). 32 See generally Marie-Benedicte Dembour, ‘Critiques’ in Daniel Moecklie, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (Oxford University Press, 2014) 62–64; Michael Rosenfield, ‘Universal Rights and Cultural Pluralism: Comment: Human Rights, Nationalism, and Multiculturalism in Rhetoric, Ethics and Politics: A Pluralist Critique’ (2000) 21 Cardozo Law Review 1225. 33 Regner considers that because of conceptual universality, a distinct approach should be taken to the interpretation of the scope in application of human rights treaties: ‘Human rights are inherent, that means they are not deprivable and cannot be renounced, even not by states. The concept

The Extraterritorial Question 7 In a seminal piece of work, Milanovic reflected on the issue as being one of a tension between universality and effectiveness in the application of human rights obligations.34 De Londras and Dzehtsiarou take a similar approach, identifying that the area has given rise to a difficulty in refining the ‘general normative principle into a workable set of legal rules about the applicability of a certain set of human rights standards’.35 Taking a slightly different angle, Shany has framed this as a debate between universality and particularism.36 Elsewhere Besson has referred to the issue of jurisdiction as both a normative threshold and a practical condition.37 While not precisely the same, the questions that emerge across these conceptions revolve around the extent to which it is reasonable for a state to fulfil extraterritorial obligations and the extent to which an international system of monitoring and implementing these obligations is possible. In essence, they are asking at what point the principle of universality is deactivated and superseded by practical realities. This is a challenging discussion and, as an archetype, the responses demonstrate ‘the spirit that animates the whole area of law’.38 Increased globalisation, greater awareness of remedies and a stronger institutional commitment to human rights has resulted in the extraterritorial question rupturing through in a series of domestic and international arrangements and so it is by no means unique to the Convention.39 Yet in no system is this issue brought to life more vividly than the ECHR.40 This is in part linked to the success of the European human rights project. The Convention has been described as ‘the crown jewel of the world’s most advanced international system for protecting civil and political liberties’,41 ‘perhaps the most successful emanation of international justice so far’,42 ‘a model for a truly effective international system of human of jurisdiction, therefore, must be construed as a human rights concept.’ See Angelika Regner, ‘Extraterritorial Application of Human Rights Treaties’ (2006) Seminar at Institute for Human Rights Åbo Akademie, 17. 34 Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press, 2011) 54–118. 35 Fiona de Londras and Kanstantsin Dzehtsiarou, Great Debates on the European Convention on Human Rights (Palgrave Macmillan, 2018) 124. 36 Yuval Shany, ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Laws’ (2013) 7 Law and Ethics of Human Rights 47, 49. 37 Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25(4) Leiden Journal of International Law 857, 862–63. 38 Waldron (n 28) 227. 39 See ch 1, pp 28–30. 40 Other treaties are considered briefly in ch 1. For a more detailed discussion, see generally Karen Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Brill/Martinus Nijhoff, 2013) 302; Michal Gondek, The Reach of Human Rights in a Globalizing World: Extraterritorial Application of Human Rights Treaties (Intersentia, 2009); Milanovic (n 34). 41 Laurence Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19(1) European Journal of International Law 125, 159. 42 Luzius Wildhaber, ‘European Court of Human Rights’ (2002) 40 Canadian Yearbook of International Law 309, 321.

8 Introduction rights protection’43 and ‘the most highly developed instrument in the world’.44 It is also because of the frequency with which the extraterritorial question has received consideration by the Strasbourg Organs. De Schutter has observed that the Strasbourg Court is ‘a laboratory for the understanding of the evolving notion of “jurisdiction” in the era of globalization’.45 Milanovic refers to the ECHR as containing ‘the prototype jurisdiction clause’.46 Miltner sees the ECtHR’s interpretation as being so important that it contributes ‘to the sense that any judgment on the issue would be closely watched’.47 II. THE STRASBOURG APPROACH

While the Strasbourg Organs have been the most active international or regional institution to address the extraterritorial question, they have not been lauded for their approach to the issue. Instead, the Strasbourg method for engaging with the extraterritorial question has generated criticism from a range of stakeholders. There has been broad condemnation from academics with the ‘contentious issue’ referred to as a ‘saga’ by Ziegler, Wicks and Hodson.48 De Londras and Dzehtsiarou describe the ECtHR’s approach as both ‘idiosyncratic and seemingly doctrinally incoherent’.49 Commentators have particularly criticised the Court for failing to follow a clear line of principle.50 Arnell contends that ‘overall this body of authority is less than clear and consistent’.51 Bamforth is more forthright, describing the Court’s approach as ‘inconsistent’,52 while Schaefer labels the parameters of the Convention’s application as ‘elusive’.53 Wilde has referred to it as being ‘as highly contested as it is underdeveloped’.54 Raible goes 43 ibid 321. 44 Donat Pharand, ‘Perspectives on Sovereignty in the Current Context: A Canadian Viewpoint’ (1994) 20 Canada-United States Law Journal 19, 33. See also Barbara Miltner, ‘Revisiting Extraterritoriality after Al-Skeini: The ECHR and its Lessons’ (2012) 33(4) Michigan Journal of International Law 692, 694. 45 Olivier de Schutter, ‘Globalization and Jurisdiction: Lessons from the European Convention on Human Rights’ (2006) 6 Baltic Journal of International Law 185, 193. 46 Marko Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’ (2008) 8(3) Human Rights Law Review 411, 413. 47 Miltner (n 44) 694. 48 Katja Ziegler, Elizabeth Wicks and Loveday Hodson, ‘The UK and European Human Rights: A Strained Relationship?’ in Katja Ziegler, Elizabeth Wicks and Loveday Hodson (eds), The UK and European Human Rights: A Strained Relationship? (Hart Publishing, 2015) 10. 49 De Londras and Dzehtsiarou (n 35) 129. 50 Francoise Hampson, ‘The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body’ (2008) 90 International Review of the Red Cross 551, 571. 51 Arnell (n 7) 4. 52 Nicholas Bamforth, ‘The Methodology and Extra-Territorial Application of the Human Rights Act 1998’ (2008) 124 Law Quarterly Review 355, 356. Compare Besson (n 37) 859. 53 Max Schaefer, ‘Al-Skeini and the Elusive Parameters of Extraterritorial Jurisdiction’ (2011) 5 European Human Rights Law Review 566, 576. 54 Ralph Wilde, ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’ (2007) 40 Israel Law Review 503, 526.

The Strasbourg Approach 9 further to note that every new judgment of the ECtHR ‘seems to either add another layer of confusion or line of case-law different from the rest’,55 while Miltner suggests the Court practice has been to recognise extraterritorial jurisdiction ‘on an ad hoc basis’.56 Wallace refers to the jurisprudence on Article 1 as being ‘in a lamentable state’, with ‘glaring inconsistencies’57 and problems that ‘are largely of the Court’s own making’.58 Judicial opinion has been equally scathing. British judges have attempted to piece together the Strasbourg approach in recent decades in domestic decisions involving the HRA. Referring to Article 1, Lord Dyson reflected on how such a ‘small number of apparently simple words has proved to be remarkably troublesome’ for the ECtHR.59 Sedley LJ condemned the lack of consistency stating that: ‘The decisions of the European Court of Human Rights do not speak with a single voice.’60 Lord Rodger further lamented that: If the differences were merely in emphasis, they could be shrugged off as being of no great significance. In reality, however, some of them appear much more serious and so present considerable difficulties for national courts which have to try to follow the jurisprudence of the European court.61

Lloyd Jones LJ would describe the Court’s approach as being one of ‘competing interpretations’,62 so much so that Lord Mance would describe the jurisprudence surrounding the issue as ‘vexed’.63 Lord Collins has stated that the entire issue has been ‘treated in a very superficial way by Strasbourg’.64 Lord Philips went as far as to describe the ECtHR as having an ‘elastic jurisdiction’.65 For Lord Wilson, the decisions of the ECtHR involving extraterritorial jurisdiction are ‘extreme’, ‘extravagant’ and ‘stick in the throat’.66 Laws LJ pinpoints the difficulty with the jurisprudence as being that it ‘has no sharp edge; it has to be ascertained from a combination of key ideas which are strategic rather

55 Lea Raible, ‘The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should Be Read as Game Changers’ (2016) 2 European Human Rights Law Review 161, 161. 56 Miltner (n 44) 694. 57 Wallace (n 19) 42. 58 ibid 72. 59 Lord Dyson, ‘The Extraterritorial Application of the European Convention on Human Rights: Now on a Firmer Footing, But is it a Sound One?’ (20 January 2014), https://www. judiciary.uk/wp-content/uploads/JCO/Documents/Speeches/lord-dyson-speech-extraterritorialreach-echr-300114.pdf, 1. 60 Al-Skeini (CA) (n 31) [192]. 61 Al-Skeini (HL) (n 6) [67]. 62 R (Al-Saadoon and Others v Secretary of State for Defence) [2016] EWCA Civ 811 [28] (CA) (hereinafter Al-Saadoon (2)) (Lloyd Jones LJ). 63 Smith (2) (n 20) [164] (SC). 64 Interview with the Lord Collins, in Hélène Tyrell, Human Rights in the UK and the Influence of Foreign Jurisprudence (Hart Publishing, 2018) 175. 65 Lord Phillips, ‘The Elastic Jurisdiction of the European Convention on Human Rights’ (12 February 2014), https://www.oxcis.ac.uk/sites/www.oxcis.ac.uk/files/inline-files/The_Elastic_ Jurisdiction_of_the_ECHR_2012.02.14_Oxford.pdf. 66 Lord Wilson, ‘Our Human Rights: A Joint Effort?’ (Northwestern University, Chicago, 25 September 2018), https://www.supremecourt.uk/docs/speech-180925.pdf, 8.

10 Introduction than lexical’.67 Despite extensive litigation in the courts of England and Wales, it is an area that ‘remains controversial’.68 This dissatisfaction with the Strasbourg approach has also been articulated by some of the ECtHR justices. In a colourful separate opinion that I will return to, the former Maltese Judge Giovanni Bonello stated that the Court’s approach had ‘been bedevilled by an inability or an unwillingness to establish a coherent and axiomatic regime, grounded in essential basics and even-handedly applicable across the widest spectrum of jurisdictional controversies’.69 He went on to note that: ‘Principles settled in one judgment may appear more or less justifiable in themselves, but they then betray an awkward fit when measured against principles established in another.’70 The result was that the Court’s approach ‘enshrined everything and the opposite of everything’.71 This led to a body of jurisprudence that was ‘at best, barely compatible and at worst blatantly contradictory’.72 Summarising the Court’s approach, Bonello said: Up until now, the Court has, in matters concerning the extra-territorial jurisdiction of contracting parties, spawned a number of ‘leading’ judgments based on a need-to-decide basis, patchwork case law at best.73

More recently, Romanian Judge Iulia Motuc presented a more diplomatic appraisal, describing the extraterritorial question as ‘one of the most problematic’ aspects to the Convention’s interpretation and acknowledging that ‘there are several contradictions in the manner in which the Court has interpreted it’.74 In sum, while the judges in the ECHR system have repeatedly attempted to provide an answer to the extraterritorial question, they have not yet provided a coherent response free from a considerable amount of stakeholder d issatisfaction. III. THE CLAIMS OF THE BOOK

With this consternation in mind, I seek to explain the responses given to the extraterritorial question by the Strasbourg Organs and therefore provide a method to their madness. Yet my concern does not cease with the judges in Strasbourg, but extends to the responses given to the extraterritorial question by the other parties with the primary responsibility for interpreting and applying the Convention. I therefore consider the approaches of the Contracting Parties 67 R (on the Application of Faisal Attiyah Nassar Al-Saadoon, Khalaf Hussain Mufdhi) v Secretary of State for Defence [2009] EWCA Civ 7 (hereinafter Al-Saadoon (1)) [37]. 68 R (Al-Saadoon and Others v Secretary of State for Defence) [2015] EWHC 715 (Admin) [21] (Leggatt J). 69 Al-Skeini (n 1) Concurring Opinion Judge Bonello [O-114]. 70 ibid [O-115] (Bonello). 71 ibid [O-117] (Bonello). 72 ibid [O-120] (Bonello). 73 ibid [O-115] (Bonello). 74 Jaloud v The Netherlands (2015) 60 EHRR 29 [2] (Motuc).

The Claims of the Book 11 to the Convention and national courts.75 For these latter groups, I give considerable attention to the actions of the UK and focus solely on the higher echelons of British courts. The reasons for selecting this British angle are manifold. First, alongside Turkey, the UK has been at the centre of more litigation concerning Article 1 than any other Contracting Party to the ECHR. Given the generally high compliance rate of British authorities with both the Convention and ECtHR rulings, the extraterritorial question has emerged as a considerable practical challenge to their operations abroad. A second reason related to this is that focus on B ritish actions provides a detailed account of how a state has engaged with the challenges posed by the extraterritorial question, both in their actions and in their arguments before courts. This has been particularly the case in respect of the British participation in the invasion of Iraq in 2003 and its aftermath. From this, the third reason is because of the sheer weight of jurisprudence to emerge from this conflict and its importance to the present understanding of Article 1 jurisdiction. British courts in particular have been heavily active in adjudicating the ‘mountain’ of cases involving human rights violations arising out of the Iraq conflict,76 in a period which Simpson describes as ‘juridical hyperactivity’.77 Litigation, it is said, is ‘one of the legacies of the Iraq war’.78 The nature of their judgments, provided in individual speeches and often including a vigorous engagement with the practical, political and theoretical challenges in the area, have provided a significant contribution to the understanding of Article 1. My aim is to identify the approaches taken by these three groups – the Strasbourg Organs, Contracting Parties and domestic British courts – towards the extraterritorial question and to use them as a basis from which to propose a more coherent and lasting solution. I advance three arguments in respect of this, the first of which is that the Convention’s application clause in Article 1 is substantively indeterminate. As noted above, the text of this crucial provision states that Contracting Parties are obligated to secure the rights and freedoms within the treaty to everyone ‘within their jurisdiction’.79 I contend that this phrasing, and specifically the use of the word ‘jurisdiction’, fails to identify the scope of the application of the treaty’s obligations, leaving the Convention’s primary interpreters with the task of not merely applying the law, but also creating it. From this, my second contention is that we can understand how the meaning of the word ‘jurisdiction’ has been created through engagement with Stanley Fish’s theory on interpretive communities. Fish’s model explains how diverse groups of individuals can come together in a form of interpretive agreement in a 75 On the approach of other national courts, see Lawson (n 11) 116–18. 76 Gerry Simpson, ‘The Death of Baha Mousa’ (2007) 8 Melbourne Journal of International Law 340, 341–42. 77 ibid 346. 78 (R) Al-Saadoon and Others (HC) (n 68) [1] (Leggatt J). 79 European Convention on Human Rights 1950, art 1.

12 Introduction way that constrains radical indeterminacy. To Fish, these communities are constituted not by who is in the group or what text they are interpreting, but an agreed conception of their ‘purposive enterprise’, their motivation or objective, which, in turn, results in a ‘common understanding of what constitutes valid practice’ in interpretation.80 While this does not necessarily mean that interpreters will automatically agree on how a norm or rule is to be understood, the collective goal they are striving towards informs a common practice, which means that there is a consensus towards how interpretation can be pursued. Thus, it draws a clear connection between what interpreters are doing (their ‘interpretive practices’) and why they are doing it (their ‘purposive enterprise’). I argue that the three primary interpreters of Article 1 ECHR can be understood as interpretive communities. Using this theory, I advance an argument for the purposive enterprise of each of these interpretive communities and then demonstrate this motivating objective at play in the various ways in which each community has addressed the extraterritorial question.81 I therefore retell the story of how the understanding of Article 1 jurisdiction has developed through its interpreters. The third contention follows on from this. It presupposes that indeterminate words and terms can be made determinate – or at least moderately determinate – through a process of clarification. While accepting Shany’s challenge that a conceptual framework is ‘needed for the application of IHRL [international human rights law] within a universalist paradigm that is nonetheless informed by pragmatic considerations’, the claim I put forward is that any proposed resolution to the extraterritorial question requires cognisance of both how the interpreters behave and why.82 Recognition of this, and locating any intersections where communities’ impulses meet, is the path towards a more lasting solution wherein principle can be deployed. IV. THE STRUCTURE OF THE BOOK

The structure can be briefly summarised. In Chapter 1 I reflect on the drafting history of the Convention and the particular challenges raised by the use of the word ‘jurisdiction’ in order to explain the initial lack of textual clarity concerning where the Convention’s obligations apply. This ambiguity can only be resolved through interpretation. Chapter 2 therefore introduces the theory of interpretive communities as a way to explain what channels, constrains and 80 Jean D’Aspermont, ‘Professionalisation of International Law’ in Jean D’Aspermont, Tarcisio Gazzini, Andre Nollkaemper and Wouter Werner, International Law as a Profession (Cambridge University Press, 2017) 29. 81 Waibel notes how: ‘Interpretive communities exist both nationally and internationally, and interact with one another.’ See Michael Waibel, ‘Interpretive Communities in International Law’ in Andrea Bianchi, Daniel Peat and Matthew Windsor (eds), Interpretation in International Law (Oxford University Press, 2015) 152. 82 Shany (n 36) 50.

The Structure of the Book 13 dictates interpretation by those engaged in the application of the Convention. In this chapter, I attempt to explain the purposive enterprise (that motivating factor and central objective) of each of the three principal interpretive communities of the Strasbourg Organs, the Contracting Parties and the national courts (with the focus on the British judiciary). The remainder of the book is structured to reflect the three distinct periods of evolution in respect of Article 1 jurisdiction. The first ran from the Convention’s entry into force in 1953 through to the end of 2001, when the understanding of its extraterritorial application was relatively stable and progressive. The second commenced in late 2001 with the landmark decision in Banković and instituted a decade of turmoil in the understanding of jurisdiction. The third began in mid-2011 with the seminal Al-Skeini decision and continues to this day. In Chapters 3–6, I seek to prove my hypotheses by demonstrating the purposive enterprise at play in the interpretive practices of the relevant communities during these periods. As I am broadly focusing on the development of meaning, these chapters necessitate a loose chronological approach charting the development of Article 1 jurisdiction, and yet this is not rigidly adhered to. My concern is to demonstrate how the purposive enterprise informed particular methods of interpretation during specific periods and, in turn, how the meaning in Article 1 developed. Thus, where a similar interpretive practice was used in a series of cases, I address these together. Chapters 3 and 4 both address the development of meaning by the Strasbourg Organs. Chapter 3 charts the period until 2001 where the Convention’s extraterritorial application was normalised. Chapter 4 then takes discussion through a period of interpretive disorder between the dawning of the new century and 2010. Chapter 5 largely covers the same 50-year period, but instead focuses on the Contracting Parties to the Convention and the arguments they make both outside courtroom and inside it. For outside the courtroom, specific attention is paid to the UK’s engagement with Article 1 ECHR before, during and, to a limited extent, after the Iraq conflict. For inside the courtroom, I identify a taxonomy of types of arguments in the various interpretive and argumentative practice by states at the Strasbourg Organs. Chapter 6 directs attention to national courts with a focused case study of the domestic judiciary in British courts between 2003 and 2010. During this period, British judges had to deal with a range of circumstances relating to the extraterritorial question, from its relationship with occupation, to the investigative obligations relating to the right to life, and from prisoner transfers to the human rights of soldiers. This analysis, and the judicial compulsion towards providing clarity in their discussions, has played an influential role in the ongoing development at the ECtHR. Chapter 7 therefore draws these threads together and presents the current understanding of the extraterritorial scope of the Convention’s application through the lens of the three communities that have provided its meaning. Using the crucial condensed period of Iraq litigation since 2011 at both the ECtHR and in domestic courts as a basis, the chapter identifies the

14 Introduction various current exceptions to the general presumption that the Convention’s application is primarily territorial.83 Chapter 8 concludes the book with an analysis of whether a better response to the extraterritorial question exists and where it may lie. The purpose of this book is to establish a path towards this destination. The road to this point, and any progress forward, will continue to be defined by the constraints provided by each of the three interpretive communities who primarily construe the Convention. Therefore, rather than seeking a solution underpinned solely by universalist aspirations or theoretical and practical concerns, this chapter explains why the proposed solution may be acceptable for each of these groups. In order to reach this destination, I must first return to our departure point and the drafting of the ECHR in the late 1940s.

83 Clare Ovey has observed the significance of these cases, particularly in relation to the activities of the military agent abroad: ‘The principles relating to the application of the European Convention on Human Rights (ECHR) during extraterritorial armed conflicts have, to a very large extent, been expounded by the European Court of Human Rights (ECtHR) in cases against the United Kingdom – particularly cases involving its military activity in Iraq from 2003.’ See Clare Ovey, ‘Application of the ECHR during International Armed Conflicts’ in Ziegler, Wicks and Hodson (n 48) 225.

1 Creating Human Rights ‘Jurisdiction’ I. INTRODUCTION

I

n this book, I aim to demonstrate how the definition of jurisdiction in Article 1 ECHR is the product of the interpretations of three communities, all of which have approached the task from a specific vantage point and with a different perspective. In order to demonstrate this, I first need to establish why the word ‘jurisdiction’ has been insufficient of itself, without further interpretation, in defining where the Convention applies. This chapter sets out to establish this premise. I begin by demonstrating how the Convention’s extraterritorial application was not countenanced in the drafting of the treaty, thus leaving the decision about its geographical scope in application to its primary interpreters. From this, the next section explains why the pre-existing use of the word ‘jurisdiction’ in public international law is not suitable for the human rights context in which it is deployed in Article 1. Thus, not only was the Convention’s extraterritorial application not considered in the drafting, but the word used to regulate its application did not solve the extraterritorial question either. The result is identified in the final section: the textual indeterminacy has required the Convention’s interpreters to breathe new meaning into the word and, in doing so, ultimately create a human rights-specific understanding of jurisdiction. II. THE DRAFTING OF ARTICLE 1

Like many of the documents of the international human rights framework, the ECHR is a product of the circumstances within which it was created.1 The historian Kershaw describes the post-war Europe in which the Convention came into being as a continent living under ‘the shadow of death and devastation’,2 a region ravaged by ‘political uncertainty, economic disorder, social misery 1 Javid Rehman, International Human Rights Law, 2nd edn (Pearson, 2010) 3; Ilias Bantekas and Lutz Oette, International Human Rights: Law and Practice, 2nd edn (Cambridge University Press, 2016) 14. 2 Ian Kershaw, To Hell and Back, Europe 1914–1949 (Penguin, 2016) 470. See also Keith Lowe, Savage Continent: Europe in the Aftermath of World War II (Penguin, 2013). Brian Simpson charts the connection between the Second World War and the foundations of the Convention in AW Simpson, Human Rights and the End of Empire (Oxford University Press, 2001) 157–221.

16 Creating Human Rights ‘Jurisdiction’ and further terrible inhumanity’.3 It is against this backdrop that Western European states – greatly suffering and heavily dependent on North American financial support – came to see their future security and prosperity in stronger alliances with one another. This cooperation was manifested in a series of international agreements. In March 1947, the UK and France signed a mutual assistance pact known as the ‘Dunkirk Treaty’.4 In March 1948, Belgium, France, Luxembourg, the Netherlands and the UK concluded the Brussels Treaty on economic, social and cultural collaboration and self-defence.5 This was followed in April 1948 with the establishment of the Organisation for European Economic Cooperation.6 One month later, in May 1948, a Congress of Europe was held by a nongovernmental organisation, the International Committee of the Movements for European Unity. The conference, attended by some 660 delegates, including 20 current and former prime ministers, called for further collaboration in the form of both a European Assembly and ‘a Charter of Human Rights’.7 These appeals fell on receptive ears, with European states growing increasingly frustrated at the lack of progress being made at the United Nations (UN) concerning what would ultimately become the proposed International Bill of Rights. There was also appetite for what Greer refers to as a ‘firmer national entrenchment of constitutional democracy, human rights and the rule of law, and their better protection in much more effective international institutions’.8 There was, as Convention historian Simpson describes, a confidence that Western European nations would be able to avoid some of the problematic disagreements that had ‘bedevilled the UN negotiations’.9 The origins of Article 1 ECHR, and ultimately any discussion about the treaty’s geographical application, date back to this period and the draft text produced by the European Movement. Despite being considered relatively weak due to a lack of detail,10 the travaux préparatoires of the ECHR provide the only 3 Kershaw (n 2) 472. 4 Treaty of Alliance and Mutual Assistance (adopted 4 March 1947, entered into force 9 September 1947) 9 UNTS 187. 5 Treaty of Economic, Social, and Cultural Collaboration and Collective Self-Defence (adopted 17 March 1948, entered into force 25 August 1948) 19 UNTS 51. 6 Born out of the Marshall Plan, this organisation sought to work on a joint recovery programme and to supervise the distribution of aid. 7 AH Robertson, The Council of Europe: Its Structure, Functions and Achievements, 2nd edn (Frederick A Paeger, 1961) 3. See also Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, 2006) 14. 8 Greer (n 7) 8. 9 AWB Simpson, ‘Britain and the European Convention’ (2001) 34 Cornell International Law Journal 523, 541. 10 Described as a ‘notoriously unreliable’ guide to treaty interpretation; Robin White and Clare Ovey, Jacobs, White and Ovey: The European Convention on Human Rights, 5th edn (Oxford University Press, 2010) 66. Bates notes that the travaux préparatoires are not comprehensive on a number of issues; Ed Bates, The Evolution of the European Convention on Human Rights, from its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press, 2010) 79.

The Drafting of Article 1 17 indication of the intention of the drafters in relation to the application of the Convention.11 Alongside contemporary speeches and political statements, it is possible to discern from them an understanding of both how and why the phrase ‘within their jurisdiction’ came to be selected as the term to define the scope of the treaty’s application.12 A. Territory The initial stages of drafting, conducted by a juridical committee of the ‘European Movement’, indicate that the obligations owed by Contracting Parties would be restricted to events occurring within their own national territory. In July 1949, the Movement submitted its Draft Convention to the Committee of Ministers of the newly established Council of Europe. It proposed that the application clause of the human rights charter should read: ‘Article 1 – Every State a party to this Convention shall guarantee to all persons within its territory … the following rights.’13 The draft was considered by the Consultative Assembly of the C ouncil of Europe, which, in late August 1949, assembled in Strasbourg to continue the preparation of the treaty. At this stage, the proposals were referred to a Committee on Legal and Administrative Questions, where Pierre-Henri Teitgen, the chief architect of the Convention, a former French Resistance organiser and academic lawyer, put forward a motion and question with the suggestion that the Convention was intended: [T]o ensure by a collective guarantee, the effective enjoyment of the principal Rights of Man referred to in the Universal Declaration of the Rights of Man adopted by the United Nations, to all persons who may find themselves on the territory of a Member State.14 (Emphasis added)

This initial territorial presumption continued through a series of subsequent amendments. It next read ‘all persons residing within the metropolitan territory of a member State’,15 before becoming an obligation with the wording ‘to ensure

11 Recourse to the travaux préparatoires is a supplementary method of treaty interpretation that becomes operative when a basic interpretation of a term in a treaty renders unclear results; Vienna Convention on the Law of Treaties, 1969 (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 32. 12 On the drafting, see generally AH Robertson, ‘The European Court of Human Rights’ (1960) 9 American Journal of Comparative Law 1; AH Robertson, ‘The European Convention for the Protection of Human Rights’ (1950) 27 British Yearbook of International Law 145; and Barbara Miltner, ‘Revisiting Extraterritoriality after Al-Skeini: The ECHR and its Lessons’ (2012) 33(4) Michigan Journal of International Law 692, 717–22. 13 Draft European Convention on Human Rights submitted by the European Movement to the Committee of Ministers of the Council of Europe July 1949, TP I, 296 and 298. 14 Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly (27 August 1949) TP I, 166. 15 ibid 166–68.

18 Creating Human Rights ‘Jurisdiction’ to all persons residing within their territories’.16 It was also reflected elsewhere in the travaux préparatoires with the only deliberation appearing to be whether the Convention would apply to the territory of a state or to its metropolitan territory.17 A more holistic look at the overall purpose of the Convention further indicates this initial territorial presumption. One suggestion was that the collective guarantee would apply strictly to ‘a certain list of fundamental rights and liberties, all of which are at present guaranteed on the territory of Member States’.18 A draft Preamble report prepared by Teitgen included reference to the Committee approving ‘the principle of international law according to which each State reserves the right to organise the exercise within its territories of the guaranteed liberties’.19 Again, in the draft recommendations, Article 4 was to include a provision allowing each Member State to organise and protect the guaranteed rights ‘within its territory’.20 Teitgen continued with the same focus on territoriality later, stating that: ‘Each country shall, through its own legislation, determine the conditions in which these guaranteed liberties shall be exercised within its territory.’21 Furthermore, the collective guarantee amongst all states was intended to prevent a state from suppressing the guarantees within the Convention through minor measures ‘made with the pretext of organising the exercise of these freedoms on its territory’.22 In sum, the initial discussions about the Convention’s application were restricted to a state’s ‘territory’, with no contemplation whatsoever of the use of the word ‘jurisdiction’. B. The Move Towards ‘Jurisdiction’ The change of direction came because of the contemporaneous drafting of the International Bill of Rights at the United Nations.23 In November of 1949, the

16 Draft Recommendation, 5 September 1949, Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights, (31 March 1977) Court (77) 9, 17. 17 For further discussion of ‘metropolitan territories’ see Miltner (n 12) 710. 18 Pierre-Henri Teitgen, 22 August 1949, Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights, (31 March 1977) Court (77) 9, 13. 19 Preamble of Draft Report presented by Mr Pierre-Henri Teitgen, 5 September 1949, Council of Europe, Preparatory work on Article 1 of the European Convention on Human Rights, Strasbourg, 31 March 1977, Court (77) 9, 17. 20 Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights, Registry, 31 March 1977, Court (77) 9, 17. 21 Pierre-Henri Teitgen, 7 September 1949, Council of Europe, Preparatory Work on Article 1 of the European Convention on Human Rights, Strasbourg, 31 March 1977, Court (77) 9, 22. 22 Pierre-Henri Teitgen, 22 August 1949, Council of Europe, Preparatory Work on Article 1 of the European Convention on Human Rights, Strasbourg, 31 March 1977, Court (77) 9, 22. 23 Gondek described the respect ECHR drafters awarded to the drafters at the UN as ‘striking’; Michal Gondek, The Reach of Human Rights in a Globalizing World: Extraterritorial Application of Human Rights Treaties (Intersentia, 2009) 84.

The Drafting of Article 1 19 Committee of Ministers of the Council of Europe established a Committee of Legal Experts on human rights to assist with the drafting of the Convention. The Committee of Ministers ‘expressly requested it to pay “due attention” … to the progress which has been achieved in this field by the competent organs of the United Nations’.24 At that time, the UN Commission on Human Rights had recently held its 5th session at Lake Success in New York with the purpose of preparing a preliminary draft of the International Bill on Human Rights. At this session, the proposal was made that Article 2 of the draft UN Treaty would be worded: ‘Each State Party hereto hereby undertakes to ensure to all individuals within its jurisdiction the rights defined in this Covenant.’25 Comparison was then drawn between the current draft of the European Convention that used the term ‘residing within their territories’26 and the parallel provision of the International Covenant.27 The distinction between the two drafts was noted at the following meeting of the Committee of Experts.28 One question that immediately arose from the comparison between the two treaties was whether the stipulation of ‘residing’ in the European version would extend to nationals of non-Member States living within the territory of Member States, but not falling within the category of ‘stateless persons’.29 Influenced by the considerable emigration in post-war Europe, this comment reflects a concern that the draft text could be overly restrictive. An attempt was made to address this issue on 4 February 1950 with two proposals being advanced. Dowson, the UK representative, suggested that the provision be revised to read that: ‘Each State party hereto undertakes to ensure to all individuals within its jurisdiction

24 Consultative Assembly, Committee of Ministers, Standing Committee of the Assembly (18 November 1949) TP II, 296. 25 Article 2, Preliminary Draft of the International Covenant on Human Rights, noted in Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights (31 March 1977) Court (77) 9, 30. Note that this was prior to the eventual inclusion of ‘territory’ in the ICCPR’s application clause. Article 2(1) of the ICCPR would eventually require a state party to the treaty to respect and protect the rights of all ‘individuals within its territory and subject to its jurisdiction’. On the extraterritorial application of the ICCPR, see Hugh King, ‘The Extraterritorial Human Rights Obligations of States’ (2009) 9(4) Human Rights Law Review 521, 522–30; Beth van Schaak, ‘The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change’ (2014) 90 International Law Studies 20, 28–31. 26 Draft Recommendation, 5 September 1949, Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights, (31 March 1977) Court (77) 9, 17. 27 Gondek notes that the use of the word ‘territory’ was at the insistence of the US; Gondek (n 23) 76. This is something which France strongly opposed. See Rick Lawson, ‘Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights’ in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 113. On this part of the drafting of the ICCPR, see Michael J Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 American Journal of International Law 119, 124. 28 Committee of Experts on Human Rights of the Council of Europe – First Session (Strasbourg, 2–8 February 1950), accessed in Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights (31 March 1977) Court (77) 9, 31. 29 ibid 32.

20 Creating Human Rights ‘Jurisdiction’ the rights defined in this Convention.’30 This is the first occasion in the Convention’s drafting where the word ‘jurisdiction’ was deployed. At the same time, Perassi, the Italian representative, proposed that ‘residing within’ be replaced by ‘living in’.31 Both suggestions were directed to a sub-committee tasked with making a study of the amendments proposed by members of the Committee of Legal Experts. There it was observed that: Since the aim of this amendment is to widen as far as possible the categories of persons who are to benefit by the guarantee contained in the Convention, and since the words ‘living in’ might give rise to a certain ambiguity, the Sub-Committee proposes that the Committee should adopt the text contained in the draft Covenant of the United Nations Commission: that is, to replace ‘residing within’ by ‘within its jurisdiction’.32 (Emphasis added)

The draft Article 1 then read ‘The High Contracting Parties undertake to guarantee to all persons witáin (sic) their jurisdiction.’33 Almost 60 years later in the UK Court of Appeal, Brooke LJ would pinpoint this moment, and the move away from ‘territory’, as the point when the Convention’s extraterritorial application became ‘seriously arguable’.34 The Committee of Experts justified the change in its report to the Committee of Ministers because the word ‘residing’ could have been considered too restrictive.35 It stated: It was felt that there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory States, even those who could not be considered as residing there in the legal sense of the word. This word, moreover, has not the same meaning in all national laws.36

There is an element of irony in that it was the ambiguity in the word ‘residing’ that ultimately led to the inclusion of ‘jurisdiction’, a word that arguably provides even less clarity. A number of minor alterations were subsequently made to Article 1 in the ensuing period of negotiations and drafting,37 yet these

30 ibid 33. 31 ibid. 32 ibid 34. 33 Draft text of the first section of a draft Convention based on the work of the Consultative Assembly (7 February 1950) Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights (31 March 1977) Court (77), 35. 34 R (on the Application of Al-Skeini and Others) v Secretary of State for Defence [2006] 3 WLR 508 (CA) [3] (Brooke LJ). However, in later litigation in British courts, the significance of this was challenged. It was noted that: ‘It is not credible that the change to the phrase within their jurisdiction was intended to effect a fundamental extension to the scope of the Convention without this being clearly reflected in the travaux.’ See R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 (SC) [48] (hereinafter Smith (1)) (Lord Phillips). 35 Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights (31 March 1977) Court (77) 9, 40. 36 ibid. 37 Preliminary draft Convention (15 February 1950) art 1: ‘The High Contracting Parties undertake to accord to any person within their jurisdiction the rights set out in Article 2 of this Convention, subject to the conditions given below.’ Committee of Experts (2 February–10 March 1950) xvii, 339, 236.

The Drafting of Article 1 21 were less concerned with the scope of the treaty’s application and were based more on whether the rights preserved within the Convention would be precisely defined or simply enumerated.38 The discussion also centred on the way in which the relevant protections would be expressed, with the text developing from states accepting to ‘undertake to accord to all individuals within their jurisdiction’39 to ‘shall secure to all individuals within their jurisdiction’40 and then further to ‘secure to each person within their jurisdiction’.41 On the eve of the treaty being opened for signature in November 1950, the drafters finally settled upon ‘shall secure to everyone within their jurisdiction’.42 C. Preliminary Comments While I will shortly turn to the problems caused by the selection of this phrasing, at this stage it is important to identify the opposing forces at play in the drafting of Article 1. First, there is strong evidence to suggest that the drafters initially had only the national territory of Contracting Parties to the treaty in mind when considering the scope of its application. A telling example is the following statement by Rolin, the Belgian representative, in August 1950 (ie, after the terminology had changed from territory to jurisdiction): [T]he right of protection by our States, by virtue of a formal clause of the Convention, may be exercised with full force, and without any differentiation or distinction, in favour of individuals of whatever nationality, who on the territory of any one of our States, may have had reason to complain that his rights have been violated.43 (Emphasis added)

Writing more recently on the matter, Bates has suggested that the drafters most likely continued to intend on a territorial nexus, suggesting that the C onvention’s Amendments to the preliminary draft Convention proposed by the UK representative (6 March 1950): ‘Article 1. 1) Each State party hereto undertakes to ensure to all individuals within its jurisdiction the rights defined in this Convention.’ Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights (31 March 1977) Court (77) 9, 42. 38 On this point, there was a division between the UK, Greece, Norway and the Netherlands, and Belgium, France, Ireland and Italy. Preliminary draft Convention (9 March 1950) Council of Europe, Preparatory Work on Article 1 of the European Convention on Human Rights, Strasbourg, 31 March 1977, Court (77) 9, 42. See Bates (n 10) 89. 39 New draft alternatives B and B/2 (16 March 1950) Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights (31 March 1977) Court (77) 9, 44. 40 Meeting of Sub-Committee on Human Rights (4 August 1950) Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights (31 March 1977) Court (77) 9, 66. 41 ibid. 42 Sixth Session of the Committee of Ministers (Rome, 3–4 November 1950) Council of Europe, Human Rights Library, Preparatory Work on Article 1 of the European Convention on Human Rights (31 March 1977) Court (77) 9, 71. 43 ibid.

22 Creating Human Rights ‘Jurisdiction’ present extraterritorial applicability ‘might well have been met with astonishment’ by those who had drafted its text.44 Conversely, there was clearly some sentiment at the time amongst a section of the drafters that it was important to give the Convention as wide an application as possible.45 While there is insufficient evidence to suggest that these individuals intended for the Convention to have global application, there are indications that, for some, their aim was to expand the application of the treaty as broadly as possible. Support for this can be drawn from the decision to widen the scope of the treaty to include more than merely those residing on the national territory of a Member State. Writing in the wake of the Convention’s drafting, Robertson noted as much, commenting specifically on the inclusion of ‘within their jurisdiction’ in the final draft of Article 1 that this ‘very comprehensive phrase was quite deliberately used in preference to the more restrictive expression “all persons residing within their territories”’.46 Robertson also suggests that in discussions concerning the drafting of the ‘colonial clause’ of Article 63, there was a group who ‘were anxious to secure as extensive an application of the Convention as possible’.47 There is also some indication in the slightly wider vocabulary adopted in the French text, ‘toute personne relevant de leur juridiction’, translated to mean ‘everyone falling under or within (or subject to) the jurisdiction of the state’.48 Clearly, none of this suggests that there was a full endorsement at the drafting stage of the extraterritorial application of the treaty, yet it does serve to illustrate that potentially not all drafters understood the Convention to be restricted to the territory of Member States.49 While shedding some light, ultimately the travaux préparatoires do not provide a definitive answer on what the drafters intended for the Convention’s application. While we can draw indications from the initial territorial approach, this does not signal the intention for the Convention to be territorially restricted. If the drafters had intended as much, then one could ask: why not leave the word ‘territory’ in with a statement so that it would also apply to those who

44 Bates (n 10) 110–11. See also Christopher Lush, ‘The Territorial Application of the European Convention on Human Rights: Recent Case Law’ (1993) 42(4) ICLQ 897, 905. 45 Lawson emphasises that the drafters ‘did not exclude any extraterritorial scope of the Convention’; Lawson (n 27) 112. Loucaides similarly takes an expansive approach based on a wider reading of why the Convention was created; Loukis Loucaides, ‘Determining the Extra-Territorial Effect of the European Convention: Facts, Jurisprudence and the Banković Case’ [2006] European Human Rights Law Review 391, 394. 46 Robertson, ‘The European Convention for the Protection of Human Rights’ (n 12) 152 fn 2. 47 ibid 159. 48 R (on the Application of Smith) v Oxfordshire Assistant Deputy [2009] 3 WLR 1099 (CA) [12] (Clarke MR). 49 As Michael O’Boyle notes, ‘there is not a word in the travaux which addresses the issue of extraterritorial jurisdiction’; Michael O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life after Banković”’ in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 132.

The Problem with ‘Jurisdiction’ 23 were considered stateless? Alternatively, they could have taken the approach ultimately adopted by the drafters of the International Covenant on Civil and Political Rights (ICCPR) and included ‘territory’ in their provision alongside the word ‘jurisdiction’.50 In resolving to settle on the terminology of ‘within their jurisdiction’, the drafters failed to appreciate the difficulties that this collection of words would cause the treaty’s interpreters. The choice of ‘jurisdiction’ in Article 1 is what Dixon and Tobin refer to as a ‘blind spot’ in treaty construction. These are ‘issues that were overlooked or unanticipated in the drafting process but that are essential to the effective operation of the relevant provision and thus require the development of an appropriate interpretive response’.51 Rather than attempting to sow indeterminacy into the treaty or, as some have suggested, deploying ambiguous terminology in order to secure agreement, it has been demonstrated how the drafters of Article 1 simply did not anticipate the difficulties their selection of words would later cause.52 III. THE PROBLEM WITH ‘JURISDICTION’

The problem that the deployment of the word ‘jurisdiction’ presents is that it is an amorphous term that does not lend itself to easy definition and can be used in a range of different contexts. This claim is relatively uncontroversial amongst legal scholars and practitioners.53 The most comprehensive recent study on the understanding of the term ‘jurisdiction’ in international law was conducted by Ryngaert, who stated that its definition is ‘hardly self-evident’.54 Similarly, Akehurst has remarked that ‘the word is used by different writers to denote a wide variety of different things’.55 Dixon states that: ‘The concept of “jurisdiction” in international law can cover a multitude of sins.’56 Watts and Jennings highlight that: ‘In practice jurisdiction is not a single concept.

50 See n 25 above. 51 Rosalind Dixon, ‘Creating Dialogue about Socio-economic Rights: Strong Form versus Weak Form Judicial Review’ (2007) 5(3) International Journal of Constitutional Law 391, 402; John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’ (2010) 23 Harvard Human Rights Journal 1, 44. 52 The British Lord Chancellor William Jowitt suggested that: ‘Vague and indefinite terms have been used just because they were vague and indefinite, so that all parties, hoping and expecting that these terms will be construed according to their separate points of view, could be induced to sign them.’ Jowitt, in Geoffrey Marston, ‘The United Kingdom’s Part in the Preparation of the European Convention on Human Rights, 1950’ (1993) 42(4) ICLQ 796, 818. 53 It was described as a ‘slippery word’ in T-Mobile (UK) Ltd v Office of Communications [2008] EWCA Civ 1373 [39] (Jacob LJ). 54 Cedric Ryngaert, Jurisdiction in International Law (Oxford University Press, 2008) 5. 55 Michael Akehurst, ‘Jurisdiction in International Law’ (1972–73) 46 British Yearbook of International Law 145, 145. 56 Martin Dixon, Textbook on International Law (Oxford University Press, 2013) 148.

24 Creating Human Rights ‘Jurisdiction’ A state’s j urisdiction may take various forms.’57 This variety does not encourage clarity about when and where a state exercises its jurisdiction for the purposes of Article 1. The word ‘jurisdiction’ is therefore a ‘term of art’,58 deployed in different environments for varying purposes and giving rise to different consequences.59 In order to define what it means in a particular forum, one must look at the role it plays within that system and adjust the meaning to fit the function of that discipline.60 In theory, taking this approach should remove much of the fog that surrounds the word and allow applicable rules to emerge over time.61 However, the problem with jurisdiction as it is understood in Article 1 ECHR is that it sits on the boundary between two distinct fields: public international law and international human rights law.62 The jurisdiction referred to in Article 1 is the state jurisdiction of the Contracting Parties to the ECHR and not that of the court itself (although the two are somewhat interlinked).63 Much has been written on the understanding of state jurisdiction in public international law and while there remains a degree of controversy concerning its precise definition, we can deconstruct its chief components to find that it is most often related to how a state manifests its power or authority.64 This occurs in one of three ways: through legislative/ prescriptive jurisdiction (the power to make law in a particular area or field),65

57 Robert Jennings and Arthur Watts, Oppenheim’s International Law (Longman, 1996) 456. See also Liphar v The Queen (1999) 200 CLR 485 [78], where Judges Gaudron, Gummow and Hayne stated that jurisdiction ‘is used in a variety of senses, some relating to geography, some to persons and procedures, and others to constitutional and judicial structures and powers’. 58 Ademola Abass, International Law: Texts, Cases, and Materials (Oxford University Press, 2014) 238. 59 Alexander Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’ (2003) 14(3) European Journal of International Law 529, 541. 60 Susan Edwards, ‘The European Court of Human Rights: Universalist Aspirations of Protection in the Middle of the Edge of Occupation’ (2010) 22 Denning Law Journal 145, 165. 61 Bianchi further argues that this is the correct application of jurisdiction as: ‘Different cases cannot be treated alike: it would run counter to elementary notions of fairness and justice common to all jurisdictions.’ See Andrea Bianchi, ‘Jurisdictional Rules in Customary International Law’ in Karl Meessen (ed), Extraterritorial Jurisdiction in Theory and Practice (Kluwer Law International, 1996) 79. Ryngaert notes that ‘while there may be some guiding principles applicable across-theboard, every field of the law ought to be subject to its own specific jurisdictional rules’; Ryngaert (n 54) 205. 62 Michal Gondek, ‘Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?’ (2005) Netherlands International Law Review 349, 351. 63 Marko Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’ (2008) 8(3) Human Rights Law Review 411, 415–16. 64 Research into the precise meaning of state jurisdiction has been undertaken on numerous occasions. See, for instance, Francis Mann, Studies in International Law (Oxford University Press, 1973); Francis Mann, Further Studies in International Law (Oxford University Press, 1990); and Karl Meessen (ed), Extraterritorial Jurisdiction in Theory and Practice (Kluwer Law International, 1996). 65 Christopher Staker, ‘Jurisdiction’ in Malcolm D Evans, International Law (Oxford University Press, 2014) 326.

The Problem with ‘Jurisdiction’ 25 adjudicative jurisdiction (the power to apply law) or enforcement jurisdiction (the power to enforce law).66 This definition will be familiar to any student of international law. It gives rise to an assortment of rules around when a state will be eligible to exercise the different aspects of its powers. That power is most naturally exercised on the state’s domestic territory and therefore jurisdiction is universally conceived as being territorial in nature. Described by Watts and Jennings as the ‘primary basis’ for jurisdiction and by Ryngaert as the ‘most basic principle of jurisdiction in international law’,67 the territorial principle allows a state to exercise its legislative, adjudicative and enforcement jurisdiction in all areas and in relation to all circumstances within its own borders. Such is the connection between the territorial principle and jurisdiction that the dictionary definition will frequently refer to the application of power or authority to a given territory.68 Jurisdiction is defined as ‘The territory within or the matter over which such authority may be lawfully exercised’,69 ‘the district over which any authority ends’,70 ‘the area over which legal authority extends’,71 ‘the territory or sphere over which the legal authority of a court or other institution extends’72 and ‘The territorial range of authority’.73 Similarly, Wallace notes that: ‘Territory can be viewed as the medium, the spatial realm, in which the State exercises its control.’74 In academic discourse, the supremacy of the territorial principle is no less prevalent. Triggs states that: ‘It is universally recognised that a state may exercise jurisdiction over all activities occurring within its own territory.’75 Watts and Jennings write that: ‘As all persons and things within the territory of a state fall under its territorial authority, each state normally has jurisdiction – legislative, curial and executive – over them.’76 Wallace explains how the territorial principle works by noting that: ‘Events occurring within a state’s territorial boundaries and persons within their territory, albeit their presence is temporary, are as a rule subject to the application of local law.’77 Chatterjee continues that: ‘Under this principle, the territory in which an act, civil or criminal, takes place, 66 See generally: Bianchi (n 61) 77; Joseph Beale, ‘The Jurisdiction of a Sovereign State’ (1923) 36 Harvard Law Review 241, 241; Ian Brownlie, Principles of Public International Law (Oxford University Press, 2008) 299. 67 Ryngaert (n 54) 42; Jennings and Watts (n 57) 43. 68 Lord Phillips gave recourse to the dictionary definition of jurisdiction in R (Smith) (1) (SC) (n 34) [37]–[39]. 69 C Funk and A-L Wagnalls, New Practical Standard Dictionary of the English Language: Volume One A–L (Funk and Wagnalls Company, 1952) 727. 70 Vivian Marr, The Chambers Dictionary (Chambers Harrap Publishers, 2008) 829. 71 Anne H Soukhanov, Encarta World English Dictionary (Bloomsbury, 1999) 976. 72 Catherine Soanes and Angus Stevenson, Concise Oxford English Dictionary (Oxford University Press, 2004) 771. 73 Michael Agnes (ed), Webster’s New World, College Dictionary (Wiley, 2008) 777. 74 Stuart Wallace, The Application of the European Convention on Human Rights to Military Operations (Cambridge University Press, 2019) 23. 75 Gillian Triggs, International Law Contemporary Principles and Practices (LexisNexis, 2006) 347. 76 Jennings and Watts (n 57) 458. 77 Rebecca Wallace, International Law (Sweet & Maxwell, 1997) 112.

26 Creating Human Rights ‘Jurisdiction’ will assume jurisdiction.’78 Dixon defines this principle as ‘simply, that a state has jurisdiction over all matters arising in its territory’.79 When acting abroad, a state is generally allowed to exercise its powers of legislative/prescriptive jurisdiction where a connection exists to the relevant person, event or circumstances.80 The exercise of this form of extraterritorial jurisdiction is premised on a variety of different principles, ranging from the personal connection a state has with its own nationals (nationality principle), and a state’s jurisdiction over matters which may produce harmful effects to it (protective principle) or over individuals who harm its nationals abroad (passive personality), to exercising jurisdiction on behalf of the international community to prosecute particularly heinous acts (universality principle).81 While these principles can extend beyond territorial borders, without the consent of the forum state, enforcement jurisdiction can normally only be exercised within a state’s own territory. State jurisdiction in public international law therefore refers to the exercise of power or authority. Naturally, a state’s ability to exercise these characteristics is at its most effective in its own territory and thus there is a rational connection between jurisdiction and territory. Yet we run into difficulties when we try to apply this orthodox public international law understanding of state jurisdiction in a human rights context and herein lies the crux of the problem with the deployment of the word ‘jurisdiction’ in Article 1 ECHR. The source of this incompatibility lies in the conceptual underpinning of how jurisdiction has developed in international law. State jurisdiction has emerged as an aspect of a state’s sovereignty and is therefore conceived as the exercise of a state’s right.82 It is the forum, subject matter or context in which a state can legitimately exercise its power and authority. Ryngaert notes that ‘there has been almost unanimous consensus historically that the term is somewhat linked to that of State sovereignty’.83 Wallace is more definitive, describing jurisdiction as ‘an attribute of state sovereignty’,84 while Mann highlights that: ‘Jurisdiction is an aspect of sovereignty, it is coextensive with and, indeed, incidental to, but also limited by the State’s sovereignty.’85 A fundamental conflict emerges when we attempt to apply state jurisdiction as

78 Charles Chatterjee, International Law and Diplomacy (Routledge, 2007) 50. 79 Dixon (n 56) 152. 80 SS Lotus (Fr v Turk) 1927 PCIJ (Ser A) No 10 (7 September). However, there remain significant controversies with some aspects of the prescriptive principle; Staker (n 65) 326. 81 Staker (n 65) 318–26. 82 Joanne Williams, ‘Al-Skeini: A Flawed Interpretation of Banković’ (2005) 23 Wisconsin Journal of International Law 687, 691. 83 Ryngaert (n 54) 5. 84 Wallace (n 77) 111. 85 Mann, Studies in International Law (n 64) 23. Mann also notes how the relationship exists in the international forum as well as in terms of domestic jurisdiction, stating that: ‘International jurisdiction is an aspect or an ingredient or a consequence of sovereignty’. Mann, Further Studies in International Law (n 64) 4.

The Problem with ‘Jurisdiction’ 27 it is understood in this sense in the context of a human rights treaty, as the function of the word is completely reversed from one of a state’s rights to its responsibilities.86 The wording of Article 1 demonstrates this in noting that the obligation is that states ‘shall secure to all individuals within their jurisdiction’ (emphasis added).87 Thus, as Pedersen notes, ‘Article 1 is designed as defining the obligations of States whereas jurisdiction in international law defines the rights of States’.88 Mantouvalou goes further, stating that ‘the notion of jurisdiction has a special meaning in human rights law and it is not some technical term of general international law, for its meaning fundamentally influences the protection of individual human rights’.89 The result of this variance is that the underlying rationale for how jurisdiction has been understood in public international law for centuries and thus the rules which have been cultivated to address jurisdictional disputes between states are at odds with the purpose of jurisdiction as it is intended in Article 1.90 In particular, while a state will often wish to obtain the jurisdiction understood in public international law, most commonly to prosecute an individual or assert its authority over an event, in the field of international human rights law the practice of states has been to strenuously deny its existence, as this would give rise to unwanted obligations. There are some who argue that the public international law approach can be deployed in an international human rights context,91 thus ensuring fluidity across disciplines.92 Yet beyond the territorial principle, even the most basic attempt to apply the public international law approach to Article 1 runs into considerable practical and conceptual difficulties.93 Take, for example, the

86 Lea Raible, ‘Title to Territory and Jurisdiction in International Human Rights Law: Three Models for a Fraught Relationship’ (2018) 31(2) Leiden Journal of International Law 315, 320. 87 European Convention on Human Rights 1950, art 1. 88 Morten Peschardt Pedersen, ‘Territorial Jurisdiction in Article 1 of the European Convention on Human Rights’ (2004) 73 Nordic Journal of International Law 279, 301. See also Alexandra Ruth and Mirja Trilsch, ‘International Decisions: Banković v. Belgium (Admissibility). App. No. 52207/99’ (2003) 97 American Journal of International Law 168, 171. See also Orakhelashvili (n 59) 540. 89 Virginia Mantouvalou, ‘Extending Judicial Control in International Law: Human Rights Treaties and Extraterritoriality’ (2005) 9(2) International Journal of Human Rights 147, 160. 90 Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25 Leiden Journal of International Law 857, 869; Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press, 2011) 419. 91 Pedersen attempts to discuss aspects of the Strasbourg jurisprudence in light of relevant public international law premises for jurisdiction; Pedersen (n 88). 92 Frederic Vanneste, General International Law before Human Rights Courts (Intersentia, 2009) 214. Milanovic refers to this as a resting on a ‘spurious assumption’; Milanovic (n 63) 417. See also Elspeth Berry, ‘The Extraterritorial Reach of the ECHR’ (2006) 12(4) European Public Law 629, 650; Orakhelashvili (n 59) 540; Sarah Miller, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’ (2009) 20(4) European Journal of International Law 1223, 1230. Compare Miltner (n 12) 746. 93 Miller argues that the art 1 case law becomes clear if viewed as manifestations of a territorially centred rule; Miller (n 92)1245.

28 Creating Human Rights ‘Jurisdiction’ nationality principle – a fundamental tenet of the public international law conception of state jurisdiction.94 Understanding ECHR jurisdiction through such an approach would suggest that Convention obligations are applicable to nationals of Contracting Parties wherever they are located. Contracting Parties could then be permanently obligated to secure their rights under the Convention. Strict enforcement of this interpretation would pose seemingly insurmountable practical challenges for any state, not least those with large diaspora communities. Conceptually this interpretation runs into further difficulties as it is wholly inconsistent with the principle of universality in human rights protection. Rather than recognising the inherent rights of all humans, it would suggest a preference for a state’s extraterritorial obligations towards its own nationals. IV. CREATING HUMAN RIGHTS JURISDICTION

This exposition of the problem with the word ‘jurisdiction’ in Article 1 may suggest that the Convention’s drafters are to blame for the recent decades of attempts by the ECtHR to define the treaty’s scope. While finger-pointing is seductive, directing responsibility at the drafters would not be entirely appropriate. The reason for this is simply that the extraterritorial challenge is an issue faced by all systems of human rights implementation and is not unique to the ECHR.95 A. The Inevitability of the Mission Similar provisions exist in other human rights treaties with the limiting nature of Article 1 ECHR replicated in the Convention on the Rights of the Child where Contracting Parties’ obligations are again restricted to individuals ‘within their jurisdiction’.96 The drafters of the American Convention on Human Rights took a similar approach, although instead of including a requirement for events occurring ‘within their jurisdiction’, they selected the terminology of ‘all persons subject to their jurisdiction’.97 A marginally different approach was

94 This will be discussed further in ch 3. 95 For further consideration of the extraterritorial application of all human rights treaties, see Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004). On the UN Convention against Torture and the ICCPR, see Karen Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Brill/Martinus Nijhoff, 2013). 96 United Nations Convention on the Rights of the Child (adopted 20 November 1989 UNGA Res 44/25, entered into force 2 September 1990) 1577 UNTS 3, art 2.1. 97 American Convention on Human Rights ‘Pact Of San Jose, Costa Rica’ (B-32) (adopted 22 November 1969, entered into force 18 July 1978) OAS, Treaty Series, No 36, art 1.

Creating Human Rights Jurisdiction 29 taken in the ICCPR, where, through Article 2, a state’s obligations are confined to ‘all individuals within its territory and subject to its jurisdiction’.98 The more recent International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families limits its obligations to ‘all migrant workers and members of their families within their territory or subject to their jurisdiction’.99 The drafters of the Convention against Torture took an entirely different approach. Instead of having a single clause that would act as a gateway to treaty rights, it contains 14 separate mentions of jurisdiction. Most notable is Article 2(1), which obliges state parties to ‘take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction’.100 This detailed approach differs from the others as it identifies specifically what states need to do within their jurisdiction.101 At the domestic level, there are rights-based documents that similarly lack a single clause defining their scope of application and instead give a direction for the bodies and functions for which the text’s obligations will be applicable. The Canadian Charter of Rights and Freedoms and the New Zealand Bill of Rights Act 1990 are two such examples that have generated litigation concerning their scope in application.102 Despite the variances in the structure and language, almost all of these rights-based documents have faced litigation concerning the extraterritorial question.103 The issue has arisen regardless of what the operative wording is and how the text is constructed. This suggests that whatever wording the ECHR’s drafters had settled on to define the Convention’s scope would have served to be the battleground for litigation in later years. 98 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 2.1. 99 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 (adopted 18 December 1990 /RES/45/158, entered into force 1 July 2003) 2220 UNTS 3, art 7. 100 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984 A/RES/39/46, entered into force 26 June 1987) 1465 UNTS 85 (CAT), art 2.1. 101 Similarly, the African Charter on Human and Peoples’ Rights makes it mandatory that states ‘shall undertake to adopt legislative or other measures to give effect to’ the rights, duties and freedoms contained within the treaty; African Charter on Human and Peoples’ Rights, 1981 (adopted 27 June 1981, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982), entered into force 21 October 1986), art 1. 102 Canadian Charter of Rights and Freedoms, s 32. See also Amir Attaran, ‘Have Charter, Will Travel? Extraterritoriality in Constitutional Law and Canadian Exceptionalism’ (2008) 87 Canadian Bar Review 515; New Zealand Bill of Rights, s 3. See also Young v Attorney General [2018] NZCA 307; Ella Watt, ‘The Application of the New Zealand Bill of Rights Act 1990 to New Zealand State Actors Overseas’ (2013) 11(2) New Zealand Journal of Public and International Law 661. 103 It has been noted that: ‘Although the language of the governing instruments is always d ifferent, these cases often disclose a commonality of approach.’ R (on the Application of Al-Skeini and Others) v Secretary of State for Defence [2006] 3 WLR 508 [4] (Brooke LJ).

30 Creating Human Rights ‘Jurisdiction’ B. Giving Meaning to the Convention Despite the inevitability of the extraterritorial question, it is unsurprising that it came to the surface in relation to the ECHR in light of its drafting. The Convention’s text is characterised by open-textured language and this style posed significant concerns to some during the drafting process. Leitjen remarked on the latent ambiguities within the Convention’s text that ‘we ought to be reduced to barbarism before anyone can successfully rely on it’.104 Within the British government, Lord Chancellor William Jowitt voiced constant criticism towards the treaty and, in particular, the quality of its construction. Having acted as the Solicitor General in Churchill’s War Cabinet and previously holding the role of Attorney General, Jowitt was a formidable opponent.105 His criticism focused specifically on the lack of certainty in the draft text.106 He referred to it as being ‘a monument of lack of precision’ and ‘so vague and woolly that it may mean almost anything’.107 He further cautioned that he would ‘be unable to advise with any certainty as to what result would be arrived in any given case, even if the judges were applying the principles of English law’.108 This criticism by Jowitt could be rephrased to read that the real vice of the document lies in the substantive indeterminacy present in much of the text – an accusation that can be directly levelled at the terminology selected for Article 1. The presence of indeterminacy means that, as Singer notes, it allows for choice rather than constraining it.109 Determinacy, or at least moderate determinacy,110 could have been achieved had the drafters of the Convention retained the use of the word ‘territory’ from their early drafts as opposed to replacing it with jurisdiction. This is not to say that the word ‘territory’ would have been either correct in a normative sense or entirely clear to interpreters. Debates on it could have arisen in relation to objective or subjective territoriality, the extent of maritime jurisdiction or airspace, and yet the number of p ossibilities of meaning would have been confined within relatively narrow boundaries. As selected, the text of Article 1 simply fails to constrain the number of possible interpretations that its interpreters can give it. The lack of an appropriate independent understanding for the word ‘jurisdiction’ in the context of a human rights treaty

104 J Leitjen, cited in Bjornstern Baade, ‘The ECtHR’s Role as Guardian of Discourse: Safeguarding a Decision-Making Process Based on Well-Established Standards, Practical Rationality, and Facts’ (2018) 2 Leiden Journal of International Law 335, 340. 105 Greer (n 7) 19–20. 106 Note, ‘The Lord Chancellor: The Career and Personality of Viscount Jowitt’ (1947) 33 American Bar Association Journal 892, 894. 107 Jowitt, in Marston (n 52) 818. 108 ibid. 109 Joseph Singer, ‘The Player and the Cards: Nihilism and Legal Theory’ (1984) 94 Yale Law Journal 1, 11. 110 Franck explains determinacy as ‘a literary characteristic of rules texts and of rules; it is about transparency. It denotes a rule’s clarity of meaning: how effectively it communicates with the parties to a dispute’. Thomas Franck, The Power of Legitimacy among Nations (Oxford University Press, 1990) 84.

Creating Human Rights Jurisdiction 31 means that there is no automatic pretence for saying whether a state has exercised it or not.111 There are instead multiple possible interpretations for state jurisdiction and the text alone cannot differentiate which of these is correct.112 As we have seen, public international law presents a number of understandings of jurisdiction, some of which could be awkwardly applied to a human rights environment.113 Once we begin to look past these orthodox general international law connections, the potential number of meanings could further multiply as existing doctrines are adapted to meet the human rights-specific context. Indeterminacy is not an altogether bad thing. As Bantekas and Oette state, it has the benefit of opening ‘space for the progressive development’ through interpretation.114 As Hart notes, it also allows us to adapt to ‘our relative ignorance of fact’.115 Elsewhere Barber comments how: ‘This is particularly true in parts of constitutional law and practice where uncertainty may mask, and allow us to avoid, a costly and unnecessary political choice.’116 In a discipline like human rights that is expected to reflect current societal values and shared beliefs, a degree of indeterminacy can be particularly useful, especially when dealing with novel situations.117 These benefits compel some commentators to note that: ‘Determinacy ought not always be the goal.’118 Moreover, the task of interpreting meaning from particular words and phrases within the Convention is not alien to judges in human rights courts.119 Indeed, Baade notes how the drafters of the Convention were ‘aware of the need to continually apply the Convention’s rights to new cases and to thereby develop its normative content’.120 This task of breathing meaning into the more opentextured provisions of the Convention is one that has been willingly accepted by the judiciary at the Strasbourg Court. Writing extrajudicially, Serbian judge Dragoljub Popovic has noted that: The manner in which the Convention was drafted largely contributed to the Convention’s destiny and developments in the Court’s case law. Indeed, the Court was very

111 Kutz notes a characteristic of indeterminacy in that ‘there is no way to say unequivocally whether the term applies or whether the statement is true’. Christopher Kutz, ‘Just Disagreement: Indeterminacy and Rationality in the Rule of Law’ (1994) 103 Yale Law Journal 997, 1001. 112 Perry observes that indeterminacy is often a natural component of human rights texts; Michael Perry, Towards a Theory of Human Rights: Religion, Law, Courts (Oxford University Press, 2007) 90. 113 Pedersen (n 88). 114 Bantekas and Oette (n 1) 50. 115 HLA Hart, The Concept of Law, 2nd edn (Clarendon Law Series, 1994) 128. 116 Nick Barber, ‘Against a Written Constitution’ (2008) 1 Public Law 11, 15. 117 Michael C Dorf, ‘Legal Indeterminacy and Institutional Design’ (2003) 78 New York University Law Review 875, 883–84. 118 Kutz (n 111) 1021. 119 Robin White and Iris Boussiakou, ‘Voice from the European Court of Human Rights’ (2009) 27(2) Netherlands Quarterly of Human Rights 167, 173. 120 Baade (n 104) 339.

32 Creating Human Rights ‘Jurisdiction’ intrigued by the lack of definitions of important concepts and large formulas in the text as this ambiguity offered many possibilities of judicial interpretation. In other words, when issuing judgments, the Court had to define and give meaning to the terms and phrases used by the Convention’s drafters.121

Similar sentiments have been echoed by former judge Paul Mahoney: [T]he open textured language and the structure of the Convention leave the Court significant opportunities for choice in interpretation; and in exercising that choice, particularly when faced with changed circumstances and attitudes in society, the Court makes new law.122

The result is that adjudicators at the Strasbourg Organs are called upon to ‘make’ the law rather than simply to ‘apply’ it.123 Looking specifically to Article 1, the judges have been required to fill the abstract concept of ‘jurisdiction’ with meaning that was relevant for the discipline in which it sits. In so doing, they have created human rights jurisdiction, at least in the Convention context.124 V. CONCLUSION

This chapter has demonstrated that the Convention’s drafting history does not coherently explain the drafters’ intentions in relation to where the treaty applied. The available materials indicate that in the initial discussions, the drafters clearly intended the Convention’s application to be territorial. When they moved away from that, little consideration was given to the implications of deploying the word ‘jurisdiction’ and none to the treaty’s extraterritorial application. Beyond this, everything else is speculation. In deploying jurisdiction as the operative word for the scope of the Convention’s obligations, the drafters sowed the seeds of indeterminacy. While in a public international law sense this word has some clarity, its provisions are unsuitable for the international human rights law framework within which the Convention also sits. The pre-existing meaning of jurisdiction in international law therefore required adaptation to 121 Dragoljub Popovic, ‘Prevailing of Judicial Activism over Self-Restraint in the Jurisprudence of the European Court of Human Rights’ (2009) 42 Creighton Law Review 361, 371. 122 Paul Mahoney, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism’ (1998) 19 Human Rights Law Journal 2, 2. 123 On interpretations of this nature, see George Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’ (2004) 15(2) European Journal of International Law 279. 124 The obligations arising from UN treaties have largely been provided by the relevant treaty monitoring body. See the Convention against Torture, which has been interpreted to apply to ‘all areas where the state party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control’. UN, Committee against Torture, General Comment No 2: Implementation of Article 2 by States Parties (24 January 2008) CAT/C/GC/2 [16]. Similarly, the ICCPR has been interpreted to apply extraterritorially to all individuals ‘within the power or effective control’ of a state. UN, Human Rights Committee, General Comment No 31: The nature of the general legal obligation imposed on States Parties to the Covenant (26 May 2004) CCPR/C/21/Rev.1/Add.13 [10].

Conclusion 33 function effectively in its new surroundings of Article 1. This has required interpreters to venture beyond merely applying the law and to also create its meaning. For the judges in Strasbourg, this task has been readily accepted. Yet it raises a host of questions. Are the judges the only party with the power to create meaning or is there room for others to play an active role? What factors influence interpreters when they approach a source? Are they constrained in any way or is their interpretation merely an emanation of their own personal, political or social preference? It is to these issues that I now turn.

2 Interpreting the European Convention on Human Rights I. INTRODUCTION

O

ver 30 years ago, Robert Cover wrote that: ‘Legal interpretation takes place in a field of pain and death.’1 His contention was that beyond the recourse to canons of interpretation and technical arguments relating to precedent and applicable principles, there are individuals directly harmed, or alleviated from harm, through legal interpretation. These comments on interpretation are vividly brought to life in the debates around the scope in application of human rights treaties. Where an individual falls within the scope of a state’s obligations, the state will be bound to protect and fulfil their rights, and the individual will be entitled to compensation and accountability for any breach. The existence of an obligation renders states conscious of the legal implications for their actions and channels them to adjust their behaviour accordingly.2 Where an individual falls outside the scope of the state’s obligations, they can be left without any legal protection whatsoever, in an effective legal ‘black hole’.3 Interpretation therefore draws the line between legal repercussions and mere moral condemnation. As Cover notes: ‘When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.’4 In Chapter 1, I identified that the indeterminacy in Article 1 ECHR necessitated the creation of a new meaning for the word ‘jurisdiction’. As Fiss notes, meaning is generated through a process of interpretation.5 As a result, in this 1 Robert M Cover, ‘Violence and the Word’ (1986) 95 Yale Law Journal 1601, 1601. 2 Merris Amos, ‘The Value of the European Court of Human Rights to the United Kingdom’ (2017) 28(3) European Journal of International Law 765, 771. 3 On legal black holes, see Ralph Wilde, ‘Casting Light on the “Legal Black Hole”: Some Political Issues at Stake’ (2006) 5 European Human Rights Law Review 553, 553; Ralph Wilde, ‘Legal “Black Hole”? Extraterritorial State Action and International Treaty Law on Civil and Political Rights’ (2004–05) 26 Michigan Journal of International Law 739. 4 Cover (n 1) 1601. 5 Owen Fiss, ‘Objectivity and Interpretation’ (1982) 34 Stanford Law Review 739, 743. Tobin also describes treaty interpretation as the process of ‘generating meaning’ and of ‘attributing and then communicating meaning of a word or collection of words within a legal text’; John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’ (2010) 23 Harvard Human Rights Journal 1, 5.

The Convention’s Interpretive Parties 35 chapter I introduce a theory for how the primary interpreters of the Convention have interpreted its provisions in order to attribute meaning to Article 1 jurisdiction. While later chapters will illustrate this theory in action through a detailed exploration of the relevant jurisprudence and practice around how the phrase ‘within their jurisdiction’ in Article 1 ECHR has developed, this chapter instead identifies and introduces those who create that meaning and what shapes the interpretations they provide. It commences with an introduction to the three principal interpretive parties responsible for bestowing meaning on the Convention’s provisions, namely the Strasbourg Organs of the European Court (and formerly the Commission) of Human Rights, the Contracting Parties to the Convention and the domestic courts (with a focus on those in the UK). It then moves on to introduce how the interpreters go about generating meaning by addressing the role of canons of interpretation and other ostensible interpretive rules, before introducing the work of Stanley Fish and the notion of interpretive communities. These groups are collections of interpreters bound together by a shared ‘purposive enterprise’ that, in turn, constrains the way in which they can perform their interpretive activities. The chapter concludes by recasting the three principal interpretive parties as interpretive communities and demonstrating how Article 1’s three communities both inform and constrain each other in their discrete interpretive actions. II. THE CONVENTION’S INTERPRETIVE PARTIES

In his book Lawless World, the international lawyer Philippe Sands cites the Pinochet litigation of the late 1990s as a watershed moment in the integration of international law into British public discourse.6 Sands observed that the increased public awareness of international legal issues had brought sources into both mainstream media attention and dinner party chat.7 The picture certainly has changed. It would not be uncommon today to hear wide-ranging opinions on provisions of international law in everyday discourse – whether the use of force against a state is in keeping with provisions of the UN Charter, what the implications are of an international economic agreement or if deprivation of citizenship is lawful could all form topics of consideration. What, then, of these opinions? What differentiates the sentiments of the two friends in a café from a famed journalist with decades of experience covering such topics, and these from the interpretations advanced at court on behalf of a litigant? What separates the opinions advanced by the judiciary and the common person? The answer lies in the implications of the opinion and this is defined by the discipline in which the activity takes place.

6 Philippe Sands, Lawless World (Penguin, 2006) 3; R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147. 7 ibid 4.

36 Interpreting the European Convention on Human Rights In the practice of law, a clear distinction exists between the process of interpretation and its goal of achieving meaning. Interpretation is the appropriately packaged advancement of an argument in relation to a specific source, whereas meaning is obtained when an interpretation is adopted in order to produce an impact. This is what differentiates the moral musings of members of the public from the judgments handed down at Strasbourg. While one’s argument may win the debate at the dinner table, it will have no tangible influence on anyone, even those involved in the discussion. It is clearly different at the judicial bench at Strasbourg or national courts and in government offices. I will take each of these in turn. A. Primary Interpreters The ECtHR is tasked principally with interpreting the provisions of the Convention and this takes the judges into the realms of law creation.8 Article 19 of the Convention established the Court in order to ‘ensure the observance’ of state’s compliance with their obligations under the Convention.9 As was noted at the end of Chapter 1, one of the roles carried out by the judges is to breathe meaning into previously abstract words and phrases. This is enshrined in Article 32, which recognises that the Court’s competence ‘shall extend to all matters concerning the interpretation and application of the Convention’.10 Since Protocol 11 came into force on 1 November 1998, where a question has emerged which ‘raises a serious question affecting the interpretation of the Convention’, the Grand Chamber of the Court is tasked with providing that understanding.11 This is the most senior judicial composition in the Strasbourg system and consists of 17 judges, sitting above a Chamber of seven,12 a Committee of three,13 and single-judge formations.14 The movement from interpretation to meaning generation is at its clearest in a judicial system where interpretations produce an impact (and thus meaning) in one of two ways. First, an interpretation that is adopted by the Court in its judgment renders an outcome for both the applicant and the respondent state when the judgment is handed down. If the applicant succeeds, compensation may be paid, domestic legislation changed and practices reviewed.15 If the state

8 Franck notes that courts ‘are among the most credible of these processes of clarification’; Thomas Franck, The Power of Legitimacy among Nations (Oxford University Press, 1990) 61. 9 European Convention on Human Rights 1950, art 19. 10 ibid art 32(1). 11 ibid art 30. 12 ibid art 29. 13 ibid art 28. 14 ibid art 27. 15 Article 46 of the Convention denotes the binding nature of case judgments and the supervision of their execution by the Committee of Ministers.

The Convention’s Interpretive Parties 37 succeeds, the applicant may be left without a remedy and the state without any liability – both are still impacted. The second is that the Court’s public declaration of its judgment has the potential to influence others, in that it puts states, national courts and individuals on notice of the manner in which the Convention’s provisions are to be understood. In the case of Opuz v Turkey, the Court made it clear that states were not just bound to follow the rulings in cases to which they were a party: In carrying out this scrutiny, and bearing in mind that the Court provides final authoritative interpretation of the rights and freedoms defined in s.I of the Convention, the Court will consider whether the national authorities have sufficiently taken into account the principles flowing from its judgments on similar issues, even when they concern other states.16

Egbert Myjer, judge at the ECtHR from 2004 to 2012, has determined this passage to mean that the Court’s ‘interpretation of the Convention has a de facto erga omnes effect’.17 Therefore, even in cases where parties resolutely fail to enforce a judgment, meaning is generated as all states are given notice of how the Convention is to be applied.18 In a similar vein, interpretations made by domestic judges at national courts can bring about meaning. In order for an applicant to have their case considered by the Strasbourg Organs, they must have exhausted all other domestic remedies, and so any allegation of an extraterritorial human rights violation will most likely have been heard by a series of domestic courts before the case reaches the ECtHR.19 As such, the judiciary at these courts have been put in a position to ascribe meaning to Convention provisions. Similar to the decision of a Chamber or Committee in Strasbourg, the meaning produced in domestic courts is open to challenge and revision, but once rendered, it carries the same ability to impact the parties.20 Judgments rendered against specific litigants will clearly have an impact on them, as will the wider dissemination of definitions, which, unlike the Strasbourg Court, may be binding on lower courts. A further feature of national court contribution is that their consideration of important 16 Opuz v Turkey (2010) 50 EHRR 28 [163]. This was an approach which had been strongly advocated six years earlier by Former President of the Court Luzius Wildhaber: ‘Is it not better for there to be fewer judgments, yet ones that are promptly delivered and extensively reasoned and that establish the jurisprudential principles with a compelling clarity that will render them de facto binding ergas omnes?’ See Luzius Wildhaber, ‘European Court of Human Rights’ (2002) 40 Canadian Yearbook of International Law 309, 320. 17 Egbert Myjer, ‘Human Rights without Peace? The European Court of Human Rights and Conflicts between High Contracting Parties’ in Antoine Buyse (ed), Margins of Conflict: The ECHR and Transitions to and from Armed Conflict (Intersentia, 2011) 5. 18 There has been an increasing lethargy amongst some states in responding to judgments from the ECtHR. For further discussion, see Kanstantsin Dzehtsiarou and Donal Coffey, ‘Suspension and Expulsion of Members of the Council of Europe: Difficult Decisions in Troubled Times’ (2019) 68(2) ICLQ 44. 19 European Convention on Human Rights 1950, art 35(1). 20 ibid art 43(1).

38 Interpreting the European Convention on Human Rights issues will often result in the resolution of a dispute without consideration at the ECtHR. This can mean that issues where a specific answer is sought for wider understanding can grind to a halt after resolution in domestic courts, leaving it to another case at another time for Strasbourg to be presented with an opportunity to add its interpretive contribution. In respect of domestic courts, the focus in this book is on the interpretations advanced and the meanings generated by the British judiciary. Despite only having had competence to hear cases concerning Convention rights since October 2000, these judges have been prolific in their interpretations of the scope of the ECHR’s application. Authority for interpreting the Convention’s provisions was granted to them through the Human Rights Act 1998, section 2 of which requires courts and tribunals to ‘take account of’ the judgments of the Strasbourg judicial organs.21 The style of judgments in the High Court, the Court of Appeal and the Supreme Court (formerly the House of Lords), where judges give their own view in a ‘speech’, has meant that there are often several different interpretations of Article 1 jurisdiction being made when the issue is considered in one case. The consequence is that a series of novel contributions have been made across the domestic British jurisprudence.22 The third interpretive group for consideration operates in a different way from the former two. They are the Contracting Parties to the Convention. In the context of the ECHR, this refers to the 47 European states that have signed and ratified the treaty. The blunt term of ‘state’ has been selected here when the individuals driving the interpretations advanced in this group will often be an eclectic mix of different professionals. Some will be international lawyers who are well versed in the methods and conventions of the court system.23 Others will be individuals working for different organisations within the state, ranging from governmental ministers to civil service agents, from ad hoc legal representatives24 to permanent counsel.25 What unites these actors is that the arguments they advance are on behalf of the state and therefore, for ease of language, this grouping is referred to as one of states.26

21 Human Rights Act 1998, s 2. 22 This is considered in respect of art 1 in ch 6. 23 Michael Waibel, ‘Interpretive Communities in International Law’ in Andrea Bianchi, Daniel Peat and Matthew Windsor (eds), Interpretation in International Law (Oxford University Press, 2015) 162. 24 Peter Rowe notes how in cases concerning Iraq and Afghanistan, the UK government ‘will have instructed civilian lawyers, mostly QCs, to advise and to act as advocates in the higher courts’; Peter Rowe, Legal Accountability and Britain’s Wars 2000–2015 (Routledge, 2016) 64. 25 It will come as little surprise that government legal advisers ‘often remain beholden to their member states, with significant consequences to interpretation’; Waibel (n 23) 156. 26 It is also a nomenclature deployed by other commentators. See, for instance, Christian Henderson, who describes the 15 members of the UN Security Council as an interpretive community in relation to the legal provisions concerning the use of force; Christian Henderson, The Persistent Advocate and the Use of Force (Ashgate, 2010) 25.

The Convention’s Interpretive Parties 39 Like courts, their ability to generate meaning lies in their capacity to produce an impact based on their interpretation. A state does so by premising its actions on an understanding and then expressly using that interpretation as a justification for its conduct. For instance, a state may draft guidance for its armed forces that demonstrates how it understands the Convention to apply to them,27 or it may release a dossier to justify a particular action.28 Auto-interpretive actions like this produce meaning where an impact is felt by an individual. So, for instance, where a local consular agent refuses to arrange for legal representation for an individual detained abroad, and they premise this decision on the absence of an obligation to do so arising from the ECHR, an impact is clearly felt.29 Moreover, this impact is a direct result of the agent’s interpretation of their legal obligations. Of course, these meanings can be challenged in litigation, just as national courts’ meanings can be rendered incorrect by jurisprudence in higher courts and ECtHR judgments; however, while they go unchallenged, they carry the same impact as an authoritative judicial definition. These, then, are the three principal interpretive parties with respect to Article 1 ECHR as they are the three groups with the capacity to generate meaning by rendering a direct impact against an individual. While there is a clear hierarchy between them, with the ECtHR at the apex as the most authoritative party, this is not to devalue the influence of the other two groups. Not every interpretation that creates a meaning will result in litigation at court, nor will every decision made in the national courts conclude in Strasbourg, and so a lasting effect can similarly be felt by these groups. B. Secondary Interpreters So what then of others who interpret provisions? Perhaps less so the moral musings at the dinner table, but more those who actively take part in the procedures that render meaning. Further back from the front line of interpretation occupied by the three primary interpretive groups are a series of parties who, while actively participating in and often driving interpretations, do not possess the agency to render meaning automatically.30 The most influential of these is 27 eg, Danish Ministry of Defence Military, Military Manual on International Law Relevant to Danish Armed Forces on International Operations (Defence Command Denmark, September 2016) 98–111. 28 eg, Jeremy Wright, ‘The Modern Law of Self-Defence’ (Attorney General’s Speech at International Institute for Strategic Studies, 11 January 2017), https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/583171/170111_Imminence_Speech_. pdf. 29 The obligations owed by diplomatic and consular agents are discussed in ch 7, pp 184–186. 30 White and Boussiakou note how ECtHR decisions ‘become a matter of interest to the national governments and institutions in all of the member States, to national and international judges, to lawyers, and to academics studying human rights’; Robin White and Iris Boussiakou, ‘Voices from the European Court of Human Rights’ (2009) 27(2) Netherlands Quarterly of Human Rights 167, 172.

40 Interpreting the European Convention on Human Rights the group of individual litigants and representatives who bring cases to both national courts and the ECtHR alleging violations of a state’s extraterritorial human rights obligations. The important contribution of individuals to the international legal system has been recognised and will be reflected on later.31 As the body of jurisprudence concerning Article 1 has grown, so has the variance in interpretations advanced by applicants to the courts. Where an individual litigant has seen an argument fail in one case, a future litigant will often attempt to establish the exercise of jurisdiction in a different manner, thus charting the path for future applicants. The result is that across the litigation concerning Article 1, at both Strasbourg and the national courts, a diverse catalogue of asserted understandings of jurisdiction has emerged. As will be demonstrated, while courts have generally not been quick to adopt an individual litigant’s interpretation in the case at hand, arguments made in one case have often reappeared and been used against a different set of facts in unrelated litigation. Within this secondary tier of interpreters, there are also legal commentators, academics, activists and politicians not engaged as members of the primary grouping. In the context of extraterritorial obligations under the ECHR, it will also include individuals and groups active in both global human rights governance, like UN Treaty Monitoring Bodies and Special Rapporteurs. The input of these parties will vary, yet by virtue of being within a position to influence the interpretation, they remain important contributors. While these parties have the position to influence meaning, unlike the primary interpreters, they lack the agency to generate it unilaterally, at least concerning the ECHR. Take, for instance, the Human Rights Committee (HRC), the body of independent experts tasked with monitoring the implementation of the ICCPR.32 The HRC has produced two influential General Comments that engage with the extraterritorial question in respect of the ICCPR.33 Given the similarities between the subject matter and drafting histories of the ICCPR and the ECHR, the HRC articulations may influence the judiciary of the ECtHR or national courts in respect of their interpretations of the extraterritorial applicability of the Convention, or Contracting Parties in respect of their actions, yet it will not render an impact on anyone. Instead, the HRC’s influence is only felt when one of the primary communities selects to adopt its reasoning in their express engagement with the issue and then renders its decision or action accordingly.

31 eg, David Kennedy, ‘The Disciplines of International Law and Policy’ (1999) 12 Leiden Journal of International Law 9, 10; Alexander Orakhelashvili, ‘The Position of the Individual in International Law’ (2000–01) California Western International Law Journal 241. 32 Established under art 28 of the International Covenant on Civil and Political Rights 1966. 33 UN Human Rights Committee, General Comment No 31, The nature of the general legal obligation imposed on States Parties to the Covenant (26 May 2004) CCPR/C/21/Rev.1/Add.13 [10]; UN Human Rights Committee, General Comment No 36, Article 6 of the International Covenant on Civil and Political Rights, on the right to life (30 October 2018) CCPR/C/GC/36 [63].

The ‘Correct’ Process of Interpretation 41 This power remains with the three primary interpretive parties. Compelled by the textual indeterminacy in Article 1, the members of this primary grouping are required to render meaning in order for the system to function effectively. But what is there to stop the inhabitants of each of these groupings from simply interpreting the provision in accordance with their own normative instincts, political beliefs, institutional considerations, policy concerns or personal interests?34 The answer ostensibly lies in a series of interpretive constraints. III. THE ‘CORRECT’ PROCESS OF INTERPRETATION

For the ECtHR, this correct process is to follow the interpretive rules that the Court has recognised. The first set of these rules are the traditional international law tools contained within Articles 31–33 of the Vienna Convention on the Law of Treaties 1969 (hereinafter Vienna Convention or VCLT).35 Drafted by the International Law Commission, the VCLT codified the principles of customary international law in relation to treaty interpretation. The Strasbourg institutions adopted the ‘General Rule of Interpretation’ contained in Articles 31 and 32 VCLT as the appropriate method for the interpretation of the Convention in the case of Golder v UK.36 Here, the Court noted that ‘it should be guided’ by the VCLT in its interpretation.37 This is a practice which it has followed on a regular basis ever since,38 and one which has been heralded as necessary by both its judges and academics.39 These rules of interpretation are only to be used where there is doubt as to the true meaning of a provision, since, to quote Lauterpacht, ‘where there is no doubt, there is no necessity for interpretation’.40 This means that if a term can be defined and applied in light of its normal understanding, then there is little need to consider the other interpretative exercises present within Articles 31–33 VCLT. Where, however, the understanding does not provide clarity, a more active interpretative process is required, which includes recourse to the object and

34 Ken Kress, ‘Legal Indeterminacy’ (1989) 77 California Law Review 283, 294. 35 Vienna Convention on the Law of Treaties, 1969 (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 31. 36 Golder v UK (1979–80) 1 EHRR 524 [29]. 37 In a separate opinion, Judge Zekia went as far as to state: ‘There appears to be a virtual consensus of opinion that Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties, although with no retroactive effect, contain the guiding principles of interpretation of a treaty’; see Separate Opinion – Judge Zekia in ibid [5]. 38 eg, Banković and Others v Belgium and Others (2007) 44 EHRR SE5; Al-Adsani v UK (2001) 34 EHRR 273 [55]. 39 Luzius Wildhaber, ‘The European Convention on Human Rights and International Law’ (2007) 56(2) ICLQ 217, 223; Robin White and Clare Ovey, Jacobs, White and Ovey: The European Convention on Human Rights (5th edn, Oxford University Press, 2010) 64–67. 40 Hersch Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ (1949) 29 British Yearbook of International Law 48, 49.

42 Interpreting the European Convention on Human Rights purpose,41 the context of the treaty,42 subsequent agreements and the practice of the parties,43 relevant rules of international law44 and the document’s drafting history.45 While commentators accept that the provisions in Articles 31–33 will not ‘give’ the meaning of a treaty provision, they do provide an aid for interpretation and ‘still remain tools to guide this task’.46 The second set of interpretive rules available to the Court are those which have emerged through the workings of the Strasbourg Judicial Organs and are somewhat bespoke to them.47 They include the famed margin of appreciation, comparative interpretation techniques, the doctrine of the living instrument and the principle of effectiveness. The margin of appreciation is the discretion afforded to states in the implementation and application of the rights held within the Convention.48 The state is naturally better positioned to carry out this assessment, given its understanding of local cultural, political, religious and social heritage, particularly in respect of some rights.49 Comparative interpretation is an aid for the interpreters to ascertain whether there is a European consensus on a particular issue that should lead the ECtHR towards its finding, particularly when developing new obligations.50 The notion that the Convention is a living instrument was first introduced in the Tyrer case, which concerned corporal punishment on the Isle of Man,51 where the Court noted that the Convention ‘must be interpreted in light of present-day conditions’.52 The ‘principle of effectiveness’ is an interpretive approach used in other areas of international law, but in the Convention context seeks to ensure that rights are ‘practical and effective’ in their application. This tool therefore allows interpreters to broadly construe

41 Vienna Convention on the Law of Treaties 1969, art 31(1). 42 ibid art 31(3). 43 ibid art 31(2)(a). 44 ibid art 31(3)(c). 45 ibid art 32. 46 Tobin (n 5) 19. See also on this Michal Gondek, The Reach of Human Rights in a Globalizing World: Extraterritorial Application of Human Rights Treaties (Intersentia, 2009) 30. 47 The justification for the ECHR having two distinct rules of treaty interpretation is due to its special character as a human rights treaty. This quality was noted in the inter-state Ireland v UK case: ‘Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement”.’ Ireland v UK (1978) 2 EHRR 25 [239]. See also Soering v UK (1989) 11 EHRR 439 [87]. 48 Dinah Shelton, ‘The Boundaries of Human Rights Jurisdiction in Europe’ (2003) 13 Duke Journal of Comparative & International Law 95, 129. 49 See generally Janneke Gerards, ‘Margin of Appreciation of Incrementalism in the Case Law of the European Court of Human Rights’ (2018) 18 Human Rights Law Review 495; George Letsas, Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, 2007). 50 Glor v Switzerland App No 3444/04 (ECtHR, 30 April 2009) [75]; Christine Goodwin v UK (2002) 35 EHRR 447 [85]. 51 Tyrer v UK (1979–80) 2 EHRR 1. 52 ibid [31].

The ‘Correct’ Process of Interpretation 43 the provisions of the Convention and ensure that any restrictions are narrowly understood to give adequate protection to individuals.53 Despite being intended to inform interpretive deliberations and ensure relative determinacy, this menu of international law and bespoke interpretive tools concurrently serves to increase the number of justifiable responses that could be delivered in any given case.54 In part, this is because some of the interpretive directions pull in opposing directions. For instance, the VCLT practice to seek understanding from the drafting history of a text is at odds with the ECtHR’s more dynamic interpretive technique of the living instrument. If the drafting history produces a clear and compelling reason as to why interpreters selected a term, interpreters would still have the choice to override that consideration in later years where the understanding of the drafters was out of place in contemporary society. Similar opposing forces can be at play between the object and purpose and the text, or the principle of effectiveness and the understanding in public international law. The inevitability of interpretive discretion cannot therefore be wholly constrained by canons of interpretation.55 As Klabbers notes, ‘at the end of the day … interpretation is still a human activity, depending on the efforts of human beings, their intellectual capacities, their sensibilities, and, perhaps most of all, their sense of virtue’.56 For Waibel, ‘“Objective” interpretation is impossible’,57 as each interpreter looks at the interpretive task through their ‘own glasses’.58 Not only do interpretive constraints not effectively constrain discretion, these rules can be inverted and used as a vehicle to enhance discretion by acting as a smokescreen for an interpreter’s personal preferences. As Waibel continues, interpretive rules allow interpreters to ‘use international law as a professional vocabulary to achieve the outcomes they desire’.59 This echoes Koskenniemi, who has noted that legal argumentation ‘allowed the defence of whatever position while simultaneously being constrained by a rigorously formal language’.60 Indeterminacy therefore not only invites discretion from decision-makers, but also has the ability to conceal that discretion behind the facade of legal doctrine.

53 ibid [92]. See also Artico v Italy, where it was noted: ‘The Convention is intended to guarantee not rights that are theoretical and illusory but rights that are practical and effective’; Artico v Italy (1980) 7 EHRR 528 [33]. 54 Tobin (n 5) 6. 55 This is not to say that canons of interpretation do not have value, nor that they cannot constrain actors at all. Their role will be discussed further in ch 3. See Frederic Vanneste, General International Law before Human Rights Courts (Intersentia, 2009) 226. 56 Jan Klabbers, ‘Virtuous Interpretation’ in M Fitzmaurice, OA Elias and P Merkouris (eds), Issues of Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Martinus Nijhoff, 2010) 35. 57 Waibel (n 23) 147. 58 ibid 148. 59 ibid 162. 60 Martti Koskenniemi, ‘Letter to the Editors of the Symposium’ (1999) 93 American Journal of International Law 351, 354–55.

44 Interpreting the European Convention on Human Rights I therefore return to the question of what, if anything, can constrain interpretive discretion. The answer to this lies in the theory of interpretive communities. IV. INTERPRETIVE COMMUNITIES

The idea of an interpretive community was introduced by American literary theorist Stanley Fish as a way to answer one of the chief concerns in his field: does the source of interpretive authority lie with the text or with the reader? If it was with the text, Fish remarked, then how is it possible that readers arrive at such different understandings for the same words? If it was with the reader, then how could interpreters arrive at the same meaning despite having approached the investigation with such different personal experiences as other readers? Fish’s response was to bridge this gap by suggesting that instead of lying exclusively with either, authority emanated from an interpretive community. This is: [N]ot so much a group of individuals who shared a point of view, but a point of view or way or organizing experience that shared individuals in the sense that its assumed distinctions, categories or understanding, and stipulations of relevance and irrelevance were the content of the consciousness of community members who were therefore no longer individuals, but, insofar as they were embedded in the community’s enterprise, community property. It followed that such community-constituted interpreters would, in their turn, constitute more or less in agreement, the same text, although the sameness would not be attributable to the self-identity of the text, but to the communal nature of the interpretive act.61

It has been suggested that the idea of interpretive communities ‘does not lend itself to easy definition’62 and that it ‘remains deliberately vague’.63 The notion is being deployed here as a way of describing how a varied assortment of individuals who participate in an interpretive exercise share an agreed conception of what it is they are all attempting to do – their purposive enterprise. Through this shared understanding, the manner in which they can approach interpreting a source is also defined. This then constrains unwieldy interpretive discretion that, for Fish, is simply a misnomer. He contends that even before an interpreter approaches a text, they are so ‘deeply inside’ an interpretive community that they are already constrained by the ‘norms, standards, definitions, routines, and understood goals’ that define that context.64

61 Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Duke University Press, 1989) 141–42. See also Stanley Fish, ‘Fish v. Fiss’ (1984) 36(6) Stanford Law Review 1325, 1333. 62 Ian Johnstone, ‘Treaty Interpretation: The Authority of Interpretive Communities’ (1991) 12 Michigan Journal of International Law 371, 374. 63 Waibel (n 23) 150. 64 Fish, ‘Fish v. Fiss’ (n 61) 1332.

Interpretive Communities 45 It is important to note that the community is ‘located not in a particular physical space but in a set of practices’.65 The notion of interpretive communities is therefore not a sophisticated attempt to rename a judicial organ or an office of legal advisers. The individual actors within these institutions may well form part of the same interpretive community, yet it is not the formal contracts of office or job titles that bind them together, but instead their shared commitment to the same point of view and rules of practice. Fish notes how the actors within an interpretive community are bound together by internalising the norms of their endeavour ‘to the point where they see with its eyes and walk in its ways without having to think about it’.66 Being embedded within the community, the relevant actors will largely share a ‘common understanding of what constitutes valid practice’.67 The result is that they will often arrive at the same meaning to a particular text, thus harnessing the potentially radical indeterminacy that allows for unconstrained interpretive discretion.68 The function of this can be broken down further. A. Purposive Enterprise The conventions that dictate the manner in which interpretations are provided directly correlate with what the members of the community view as their ‘purposive enterprise’.69 It is the existence of this shared understanding of what members are collectively engaged in that instructs how they interpret rules.70 As Ian Johnstone comments, this ‘largely tacit’ acceptance of an enterprise’s general purpose helps to explain why discourse in a field of practice is possible and why agreements in interpretation can be achieved.71 The result is that the interpretive community can ‘discipline and channel interpretation’,72 allowing the interpreters to select from one of the ‘meanings available to them’.73 Interpretive discretion is not and cannot be altogether constrained, as members 65 Stanley Fish, Winning Arguments: What Works and Doesn’t Work in Politics, the Bedroom, the Courtroom and the Classroom (Harper, 2016) 160. 66 ibid. 67 Jean D’Aspermont, ‘Professionalisation of International Law’ in Jean D’Aspermont, Tarcisio Gazzini, Andre Nollkaemper and Wouter Werner, International Law as a Profession (Cambridge University Press, 2017) 29. 68 Johnstone notes that: ‘The idea of interpretive communities runs counter to the view that meaning is radically indeterminate’; Johnstone (n 62) 378. 69 Fish, Doing What Comes Naturally (n 61) 141–42. 70 As Ian Johnstone notes: ‘All that is necessary is that the members believe that they are in an ongoing relationship, and that they share a general understanding of the purpose of the enterprise in which they are collectively engaged’; Ian Johnstone, ‘The Power of Interpretive Communities’ in M Barnett and R Duvall (eds), Power in Global Governance (Cambridge University Press, 2004) 194. 71 ibid 190. Fish comments that: ‘Even when the central text of the enterprise is in dispute, all parties to the dispute are already situated within the enterprise, and the ways of disciplining … are “enterprise specific”’; Fish, ‘Fish v. Fiss’ (n 61) 1336. 72 Waibel (n 23) 150. 73 Fish, ‘Fish v. Fiss’ (n 61) 1339.

46 Interpreting the European Convention on Human Rights of the community will still undertake the interpretation through their own unique lens.74 Instead, as Mullender remarks, these communities are ‘“constraining” if not a “constraint” that binds like a fetter’.75 This is not to say that an interpretive community is fixed or that meanings within the community are immovable – quite the opposite in fact. Fish describes them as ‘an engine of change, an ongoing project whose operations are at once constrained and the means by which those constraints can be altered’.76 This is because the foundations that the communities are established upon are receptive to the influences of the wider world and as it changes, the assumptions and interests relevant to the community change with it. Where a community’s purposive enterprise requires its members to alter their practices in light of recent developments or new initiatives, the interpreters will duly oblige and the community will evolve accordingly. Context is therefore key to the interpretive behaviour of members of the community. This is also not to suggest that there cannot be disagreement within the community about the meaning attributed to a particular text.77 Interpretations can still vary considerably based on the way in which community members feel they need to meet their enterprise.78 Thus, within the community, an actor will attempt to influence the opinions of other members: they contend that this assumption, or that practice, should be given priority in the generation of meaning. In doing so, the actors are packaging their personal preferences, motivations or interests in the language that they believe will be most persuasive to the other members of the community. By deploying the language of the community, they know that there is a chance that they will be able to convince the other interpreters. Where an interpretation is advanced that is wholly incompatible with the conventions of the interpretive community, the interpreter putting forward that particularly deviant meaning is simply not a member of that community and they are instead a member of a separate community, one constituted around a different purposive enterprise.79 As Fish notes, they approach the interpretation 74 Waibel (n 23) 148. 75 Richard Mullender uses the example of judges whose task it is to interpret the US C onstitution as one interpretive community; Richard Mullender, ‘A Drama of Development Gary Olson on Stanley Fish’ (2018) Cardozo Law Review 47, 53. 76 Fish, Doing What Comes Naturally (n 61) 146. 77 Owen Fiss, who deploys the idea of interpretive communities in domestic constitutional law, notes that: ‘Nothing I have said denies the possibility of disagreement in legal interpretation. Some disputes may be centered on the correct application of a rule of discipline … Disputes of this kind are commonplace, but they pose little threat to the legitimacy of the disciplining rules; they pose only issues of application’; Fiss (n 5) 747. 78 Cass Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Harvard University Press, 1993) 189. 79 Johnstone comments on such deviant behaviour at the international level: ‘Insistence on extreme constructions deviates from accepted treaty practice and reflects inappropriate behaviour by the interpreter given his or her institutional role. The interpreter, in other words, steps out of the interpretive community associated with the treaty and takes on some other role’; Johnstone (n 62) 385.

Interpretive Communities 47 from a wholly different ‘angle’.80 The offending actor will now be bound by the practices and conventions of this separate community that will be founded on assumptions more akin to their own than the community that they have exited. Yet the actors must be careful, for different communities wield varying amounts of power. Exiting one community to pursue a particular angle may be noble, but it may also result in the actor losing a degree of power in attributing meaning to a text. B. Bounded Argument Space The function of the interpretive community is not to provide a definition, but to set the limits of the acceptable arguments and interpretations that can be advanced by its members.81 As Johnstone notes, it is ‘the terms in which positions are explained, defended, and justified to others in what is fundamentally an intersubjective enterprise’.82 These limits draw the confines of what Fish refers to as ‘bounded argument space’: A bounded argument space is one in which the arguments that can be made and the arguments that just won’t fly are formally identified and known to everyone working in the field. The identification of acceptable and unacceptable arguments is not fixed; what is fixed is the fact of the two categories. When there is a change (brought about in any number of ways) the categories remain, but what fills them is different.83

Given their inherent commitment to a shared enterprise, the actors already know in advance which arguments are permissible (likely to convince/succeed) and which are futile (unlikely to succeed and may cast a negative perception on the actor’s credibility). These limits to the bounded argument space simply come with the territory for any practitioner.84 Writing specifically in relation to the operation of a bounded argument space for law, Fish observed that ‘not everything can be heard or said, even if in the grander scheme of things – grander, that is, than any professional game – what is left out is regarded by some as life itself’.85 In this, he is echoing Robert Cover in noting how the crux of legal argumentation often boils down to what may appear to be trivial disagreements over time limits, recognition and locus standi in cases where the core of the dispute relates to matters as significant as life and death. The notion of a bounded argument space is a useful way to differentiate between arguments that an interpretive community will accept as having the capacity to be persuasive and those that, by virtue of the angle from which the

80 Fish,

Doing What Comes Naturally (n 61) 141–42. ‘Fish v. Fiss’ (n 61) 1342. 82 Johnstone (n 70) 186; D’Aspermont (n 67) 29. 83 Fish (n 65) 72. 84 ibid 146. 85 ibid 157. 81 Fish,

48 Interpreting the European Convention on Human Rights relevant interpreter approaches the question, could never be endorsed. Take the following brief example. There is an interpretive community of judges who share an agreed vision that the law should always remain settled. For them, legal certainty is paramount and so innovation is unwelcome. This is their purposive enterprise. This would then define their bounded argument space with steadfast commitments to precedent and a core principle of consistency. But what if one of the community members began to get edgy and suggested novel developments in order to bring the law up to speed with current society? That community member would be looking at the law from a different angle compared to the other members. Their behaviour would then jeopardise their membership of the community and, where they advanced arguments based on innovations, they would fall outside of the bounded argument space of acceptable contentions. This relationship between the purposive enterprise and bounded argument space is vital. The purposive enterprise is often unspoken as community members do not set out on their interpretive tasks by first declaring what their shared mission is. Conversely, the bounded argument space is clear and observable as, in the legal discipline, it is the public statements given by interpreters to explain and justify their interpretations. There are therefore observable traces of the bounded argument space in court judgments, submissions from the parties and policy statements made outside the courtroom. These are the materials that are drawn upon in later chapters to demonstrate the connection between Article 1’s interpretive communities and their purposive enterprises. V. ARTICLE 1’S INTERPRETIVE COMMUNITIES

Interpretive communities are constituted in various shapes and sizes in order to reflect the subject matter under consideration. On a judicial bench, there may be one committed community, adherent to the same purposive enterprise over many years, or a host of smaller communities approaching questions from different angles and repeatedly clashing. Moreover, there could be both at the same time. While colleagues in one interpretive community will inevitably agree on the rules of argument that unite them in relation to that common source, they could be in wholly opposing and competing interpretive communities in relation to a different source or subject of contention. As a result, as Waibel notes: ‘Identifying interpretive communities is not straightforward as the boundaries are fluid and intersecting.’86 For the purposes of this study and in the context of Article 1 ECHR, I argue that the three principal interpretive parties to the Convention identified at the outset of this chapter can be re-cast as interpretive communities.87 In the following chapters I will demonstrate this through drawing 86 Waibel (n 23) 152. 87 This approach is similar to that of Henderson, who discusses the structure of interpretive communities in the context of international law on the use of force; see Henderson (n 26) 45.

Article 1’s Interpretive Communities 49 a connection between the way in which these communities have interpreted Article 1 jurisdiction, what Fish would refer to as their ‘interpretive moves’, and their purposive enterprise.88 For the remainder of this chapter, I will outline my hypothesis of what that enterprise is for each of the three primary interpreters. A. The Strasbourg Judicial Organs The first of the interpretative communities, and naturally the most influential for the purposes of generating the meaning of Article 1 jurisdiction, are the judges of the Strasbourg Organs. This community has provided the authoritative understanding on the application of the ECHR for nearly 60 years. Its relatively small size is consistent with Waibel’s observations on the relationship between the size and accessibility of an interpretive community and its relevant authority.89 He comments that ‘the more accessible an interpretive community, the less influential it is. The higher the barriers to entry, the more weight the members of an interpretive community carry’.90 As a relatively small body with the formal authority for the interpretation of the Convention, the ECtHR is the foremost interpretive community.91 My contention is that the purposive enterprise that binds this community of judges together is a steadfast commitment to the protection of human rights alongside the safeguarding of state compliance with the Convention system. It is not their position on the court that draws individuals into the Strasbourg community, but their shared commitment to this purpose.92 While members of the community may take different views on how this goal is to be achieved, the shared objective of protecting human rights through gaining, securing and strengthening state compliance binds them together in the same venture and channels much of their individual interpretive discretion.93 The categorisation of the judges at the ECtHR and the EComHR as an interpretive community is an example of Fish’s theory in action, as it d emonstrates 88 Fish, ‘Fish v. Fiss’ (n 61) 1342. 89 There are 47 judges in the court, reflecting one member from each of the Contracting Parties; European Convention on Human Rights 1950, art 20. 90 Waibel (n 23) 156. 91 ibid 161. 92 The various actors who ultimately decide on this basis will have evaluated whether ‘it conforms to the conventions and purposes of the particular enterprise in which the practice sits’; Henderson (n 26) 22. 93 Research based on this premise has gathered momentum in recent years. See in particular the work of Shai Dothan, who states that: ‘International courts try to enhance their legitimacy and behave strategically to pursue this goal’; Shai Dothan, ‘How International Courts Enhance Their Legitimacy’ (2013) 14 Theoretical Inquiries in Law 455, 456. See also Erik Voeten’s work on the ECtHR, in which he argues that ‘ECtHR judges are politically motivated actors in the sense that they have preferences on how best to apply abstract human rights in concrete cases’. See Erik Voeten, ‘Judicial Behaviour, and Institutional Design’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford University Press, 2011) 62–63.

50 Interpreting the European Convention on Human Rights how interpretive agreement can be secured from an eclectic mix of actors, who approach a legal question from an array of different backgrounds and personal experiences.94 The judicial bench at the Strasbourg Court is populated by individuals from a variety of legal, religious, linguistic, cultural and social backgrounds. The judges are also the product of wholly different political environments, with a broad division between those from the traditionally liberal Western states and those from the former Eastern Bloc. Perhaps the most significant difference between them is that they join the bench from an assortment of professional backgrounds – in civil, socialist and common law jurisdictions,95 including legal practice, the Bar, domestic judicial positions, roles as governmental and non-governmental advisors, and academia.96 Despite this heterogeneous personal and professional history, the individuals manage to approach their task with a compelling sense of consensus. As one judge described in an interview with White and Boussiakou, they ‘find it very easy to understand, to agree or to disagree within a common discourse’.97 Another noted that members of the Strasbourg judiciary ‘readily adapt to a distinctive legal culture’.98 Arold remarks that a ‘key element of that legal culture … is a sense of working together’.99 The judges achieve this common judicial language and recognise this shared culture through internalising the rules of the community and channelling their actions towards the group’s purposive enterprise. Arold notes how the judges operate, contending that they ‘are driven by a common urge, a common ideal (or “spirit”) of human rights, a high expectation and respect amongst each other and a certain amount of peer pressure’.100 This was indicated to her in an interview with a judge, who responded that ‘we all share a common approach and a mutual understanding for the differences on the surface level, and we share the same fundamental approach’.101 Integral to this is the balance they seek to strike between the protection of human rights through the strengthening and expansion of norms that protect the individual, and the recognition of the need for ongoing state consent and acceptance with the treaty’s provisions and the Court’s judgments. After all, a treaty with limited

94 White and Boussiakou (n 30) 176. 95 Drzemczewski identified six legal families within the judiciary at the ECtHR: Latin/Western Mediterranean; Western Central European; the Balkans; Anglo-Scandinavian; Socialist; and Eastern Central European. See Andrew Drzemczewski, ‘The Internal Organization of the European Court of Human Rights: The Composition of the Chambers and the Grand Chamber’ (2000) 3 European Human Rights Law Review 233, 237. 96 A full list of the current bench and each judge’s background is available at: https://www.echr. coe.int/Pages/home.aspx?p=court/judges&c. 97 White and Boussiakou (n 30) 185. 98 ibid. 99 Nina-Louisa Arold, The Legal Culture of the European Court of Human Rights (Martinus Nijhoff, 2007) 160. 100 Nina-Louisa Arold, ‘The European Court of Human Rights as an Example of Convergence’ (2007) 76 Nordic Journal of International Law 305, 320. 101 ibid.

Article 1’s Interpretive Communities 51 obligations but universal compliance may be little better than a treaty with extensive obligations but limited compliance.102 The community has strived to balance these competing forces in a way that encourages states to accept their competence and, once consent is given, to play a meaningful role within the system by implementing the standards the court sets through its judgments. It is this enterprise that serves as the foundation of judicial interpretations and that makes it a constantly ‘activist body’. In a seminal piece of work on the Convention, Merrills contrasted the notions of activism with restraint. He notes that: ‘Where the ideology of restraint emphasises following the rules, the ideology of activism emphasises using and developing them to achieve results. So to the activist, what the court decides is more important than how it decides it.’103 By this definition, the Strasbourg Organs are always activist, yet this is not to say that activism will always produce progressive interpretations providing greater protection to the individual. The community’s purposive enterprise requires the protection of the system as much as the individual, and so some judgments will require the community to take a restrictive approach to demonstrate constraint to the Contracting Parties.104 In this sense, even restrictive judgments can be activist ones because the judiciary are not merely following rules to apply the law, but are making it in accordance with a strategic objective.105 This notion that, collectively, members of the ECtHR act in a calculated fashion in order to achieve a predetermined goal has been gaining increasing traction in recent years.106 Epstein et al identify three characteristics of such goal-oriented judicial institutions: (1) they make choices in order to meet particular objectives; (2) their actions are strategically calculated in relation to the expectations of other actors; and (3) their choices are informed by the

102 As Manco notes: ‘Should the judges adopt a progressive and/or inclusive interpretation of the ECHR, the claim of illegitimacy would be even stronger’; Noemi Manco ‘The European Court of Human Rights: A “Culture of Bad Faith”?’ (2015) 6 Global Policy 527, 527. See also George Letsas, Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, 2007) 3. Shany makes a similar point, stating that: ‘Extreme overreaching in treaty interpretation leading to the imposition of burdensome legal obligation on states is likely to lead to political resistance’; Yuval Shany, ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Laws’ (2013) 7 Law and Ethics of Human Rights 47, 50. 103 JG Merrills, The Development of International Law by the European Court of Human Rights (Manchester University Press, 1993) 231. 104 Mahoney appears generally supportive of this view, noting that ‘activism and restraint are complementary components of the methodology of judicial review inherent in the very nature of the Convention’; see Paul Mahoney, ‘Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two-Sides of the Same Coin’ [1990] Human Rights Law Journal 57, 59. 105 Merrills (n 103) 230–31. 106 See generally Karen J Alter, Laurence Helfer and Mikael Rask Madsen, International Court Authority (Oxford University Press, 2018); Karen J Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014); Cesara Raomano, Karen J Alter and Yuval Shany (eds), The Oxford Handbook of International Adjudication (Oxford University Press, 2014).

52 Interpreting the European Convention on Human Rights institutional setting in which they sit.107 Unifying these three characteristics in the ECHR context is the Court’s desire to enhance the protection of individual rights while ensuring ongoing compliance from states with both the Convention and with their judgments. What happens to those who do not adhere to this common purposive enterprise? Arold was told that: ‘If your ideas are good, the others will like it, regardless from where you are, but if you don’t play along, you are out! There are many judges marginalized.’108 This marginalisation is effectively an exit from the interpretive community. Of course, this does not mean that a judge will lose their seat on the bench by approaching their decision-making through a wholly different lens. Remember – membership of the community is not connected to one’s institutional position as a judge, but instead to a shared conception of what their enterprise is. As such, if a judge leaves the core interpretive community, they remain on the bench, but their influence on the other judges is limited. At any one time, there could be a handful of judges who have exhibited such a different angle in their interpretations so as to exit the predominant community. The result is that when I speak of the Strasbourg community, I am not necessarily speaking of all 47 judges. My argument is that the core of the bench that have, and continue to inform, the judicial opinions in the Article 1 jurisprudence can be conceived of as a single coherent interpretive community. This community is the authoritative interpreter of the Convention because it holds the most significant power to control the meaning of the text and addressing that meaning towards its many stakeholders. It is, as Waibel notes, the interpretive community that ultimately prevails as it is ‘the one with the formal authority to interpret the law with binding effect’.109 Nonetheless, the Court is not omnipotent in generating meaning.110 B. Contracting Parties The second community to play an active role in directly influencing the understanding of extraterritorial obligations are the Contracting Parties to the treaty. The shared purposive enterprise binding this grouping together is a commitment to the ECHR system with a deep aversion for being found in violation of any human rights obligation and for having these obligations constrain their actions. While there are again two opposing influences at play here, they are

107 Lee Epstein, Jack Knight and Andrew D Martin, ‘The Political (Science) Context of Judging’ (2003) 47 St Louis University Law Journal 783, 798. 108 Arold (n 100) 320. 109 Waibel (n 23) 161. 110 Thomas Franck accurately observes that: ‘All the members of the international community, individually and collectively, by their conduct and by the expression of their views, contribute to the clarification process’; Franck (n 8) 61.

Article 1’s Interpretive Communities 53 mutually compatible. The first is the commitment states have towards being supervised by the Strasbourg system of human rights protection. Note that this is not necessarily a deep commitment to the normative or ideological content of human rights, but a willingness to participate in the European framework for human rights enforcement. There are numerous political, economic and social reasons why states may want to participate in a system of human rights protection without a concurrent commitment to the notion of human rights.111 This is therefore a broad category and it includes a host of states who seek to give the perception that they are committed to the European system, alongside states that genuinely perceive human rights to be embedded within their character and actively work towards their protection at both a European and a global level.112 The evidence that members of this community have a commitment to human rights institutions lies in a number of factors. This includes their ongoing consent to be bound by the European system for human rights protection,113 the generally high level of compliance states have with that system, the domestication of many of the rights entailed in the Convention, their commitment to other human rights treaties and their proactive engagement at the global level of protection.114 These indicators will clearly vary across the continent, with obvious outliers to the system, and the reasons for ongoing engagement will differ amongst states. Nonetheless, they lend support to this first component of the shared purposive enterprise that states are at least somewhat committed to participation in the ECHR system. The second aspect to this purposive enterprise is that states have a deep aversion to being found to be in violation of their human rights obligations. As Dzehtsiarou notes, states’ ‘expectations are fairly clear – they wish to be condemned for human rights violations as rarely as possible (preferably never)’.115 The finding of a human rights violation against a state can have negative implications for the government at both the domestic and international levels. In a domestic sense, it can have deeply unsettling implications for the ruling political party as it can demonstrate a failure to meet basic standards of administration, thus affecting the relationship between the government and its constituents.

111 See generally Oona Hathaway, ‘Why Do Countries Commit to Human Rights Treaties?’ (2007) 51(4) Journal of Conﬂict Resolution 588; G Downs, D Rocke and P Barsoom, P, ‘Is the Good News about Compliance Good News about Cooperation?’ (1996) 50(2) International Organization 379; E Hafner-Burton and K Tsutsui, ‘Human Rights in a Globalizing World: The Paradox of Empty Promises’ (2005) 110(5) American Journal of Sociology 1373. 112 Amos notes how: ‘The assumption is made that protecting human rights through law is an important and worthwhile objective that is also shared by contracting states’; Amos (n 2) 765. 113 Despite considerable backlash, Greece is the only Contracting Party to have withdrawn from the Convention and Council of Europe. See White and Ovey (n 39) [62]. 114 For a detailed discussion on compliance, see Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, 2006) 60–131. 115 Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge University Press, 2015) 153.

54 Interpreting the European Convention on Human Rights At the international level, it can lead to embarrassment and shame, which can alter the image of the state amongst its peers and hinder its relationships. In a similar vein, states have an aversion for human rights obligations constraining actions that they would like to take. Whether that is banning prisoners from voting, extraditing suspected criminals or implementing changes to their armed forces, most states would rather not have to factor in human rights concerns in taking such policy-related decisions. That they do so is part of the trade-off they make in order to be party to a system of human rights enforcement. The result is that there is often a fractious relationship between the Convention organs and the states they are tasked with supervising. As Ziegler, Wicks and Loveday note, these strains ‘can occasionally be expected as being in the very nature of that relationship’.116 For instance, Donald has aptly referred to the relationship between the ECHR and the UK as being a ‘paradox’.117 Her point is that while the UK is one of the most publicly critical of the Court, with the normalisation in political discourse that the UK could leave the system, the state is only rarely found to be in violation of a Convention right and still has a relatively strong record in implementing ECtHR judgments.118 Similar to the judicial bench at Strasbourg, the contention made in respect of Contracting Parties is not necessarily that every one of them is a member of Article 1’s interpretive community of states. While most states have faced challenges in respect of their extraterritorial actions, the jurisprudence will demonstrate that there are a small handful who are repeatedly called to account for their activities abroad. Indeed, Lord Dyson dryly commented that we should ‘perhaps be grateful’ to two of these states in particular – the UK and Turkey – ‘for pushing the jurisprudence forward’.119 Thus, the contention made here is that the community is a representation of the core of states that are most influential in respect of engaging with this provision. C. National Courts The third relevant interpretive community are members of the judiciary at national courts of the Contracting Parties, in this instance with a specific focus on British judges. Of Article 1’s three interpretive communities, this community

116 Katja Ziegler, Elizabeth Wicks and Loveday Hodson, ‘The UK and European Human Rights: A Strained Relationship?’ in Katja Ziegler, Elizabeth Wicks and Loveday Hodson (eds), The UK and European Human Rights: A Strained Relationship? (Hart Publishing, 2015) 3. 117 Alice Donald, ‘The Implementation of European Court of Human Rights Judgments against the UK: Unravelling the Paradox’ in Ziegler, Wicks and Hodson (eds) (n 116) 137. 118 ibid 139–40. 119 Lord Dyson, ‘The Extraterritorial Application of the European Convention on Human Rights: Now on a Firmer Footing, But is it a Sound One?’ (20 January 2014), https://www. judiciary.uk/wp-content/uploads/JCO/Documents/Speeches/lord-dyson-speech-extraterritorialreach-echr-300114.pdf, 2.

Article 1’s Interpretive Communities 55 is the most naturally constituted.120 While individuals operating in the other communities arrive from disparate backgrounds and with varied life experiences, the senior judiciary of domestic British courts are a relatively homogeneous bunch who, through their training and socialisation, will find it easier to obtain consensus with regard to the parameters of their interpretive practices. As Brice Dickson notes: They will bring to the job a mindset which, for instance, believes very much in the importance of the doctrine of precedent and the concept of Parliamentary sovereignty. They will have a shared view as to what qualifies as an authoritative argument in an appeal, what kind of empirical evidence is deserving of consideration, and how they should word their judgments so as to influence the future path of the law. They will, in short, be familiar with ‘judicial discourse’.121

The judges have both the ability to converse when it comes to legal argumentation and to understand the limits of the bounded argument space within which their colleagues will accept their opinions.122 As Griffith noted two decades before Dickson: ‘When people like members of the judiciary, broadly homogenous in character, are faced with such situations, they act in broadly similar ways.’123 Their shared education, training and professional backgrounds instil in them a ‘strikingly homogenous collection of attitudes, beliefs and principles’.124 For Dickson, this makes them ‘attuned to a form of legal reasoning which makes it difficult for them to be truly creative in the judgments’.125 Thus, even before they approach the task of interpreting human rights provisions, judges are already positioned to function as an effective community. The common purpose constituting judges as an interpretive community with respect to the HRA can be framed as a shared pursuit to critique and clarify the Convention so that it can be effectively applied by both the government and the courts. Perhaps more so than the other community enterprises, this one requires unpacking and this can be achieved by articulating the reasons why the community is bound by this enterprise. The first of these is that this process of critique and clarification is precisely what British judges do when interpreting the law.126 It is an attribute that is deeply embedded in the common law system and sees domestic judges including in their individual speeches considerations

120 Waibel notes how: ‘The universe of interpreters in international law is more diverse than those of interpreting statutes in domestic legal system. In domestic law, the shared background of interpreters is more alike’; Waibel (n 23) 155. 121 Brice Dickson, Human Rights and the United Kingdom Supreme Court (Oxford University Press, 2013) 11–12. 122 Compare this approach with that of Owen Fiss, who explains the characterisation of domestic judges as an interpretive community in a more institutional sense; Fiss (n 5) 746. 123 JAG Griffith, The Politics of the Judiciary, 5th edn (HarperCollins, 1997) 7. 124 ibid 295. 125 Dickson (n 121) 15. 126 Mitchel De S-O-l’E Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford University Press, 2004) 3–4.

56 Interpreting the European Convention on Human Rights such as whether a clear and consistent line is being followed, whether principles and norms are being adhered to, and often what the policy implications of a decision may be. With the advent of the HRA, little has changed. This is noted in characteristically eloquent fashion by Lady Hale, who stated in the early years of the HRA that: ‘There may be new toys in the nursery but the judges play with them in much the same way as they played with old ones.’127 In playing with their new toys, British judges have sought to contribute to the understanding of the rights through clarifying what the Strasbourg authorities have said.128 The most direct way that they can contribute to the Strasbourg jurisprudence is to try to make sense of it. Under section 2 of the HRA, the judge is tasked with taking into account decisions from the Strasbourg Court in respect of the Convention rights.129 Thus, in order to apply the right to the case at hand, the judge is required to clarify its scope and meaning with reference to the Strasbourg jurisprudence, which is, to be kind, often not entirely clear.130 National judges have previously railed against the Strasbourg authorities, describing them as lacking ‘clarity’131 and being in ‘not in an altogether satisfactory state’,132 with the language being described as ‘extremely obscure’.133 Both former ECtHR President Sir Nicholas Bratza and Supreme Court Justice Lady Hale have been specifically critical of the ECtHR for failing to show an awareness of the consequences of its judgments in domestic courts.134 The result is that domestic judges draw the Strasbourg authorities together into a form of structure. Clare Ovey refers to this as ‘translating the Convention standards into reality in the legal order of each country’.135 Lord Kerr has noted as much, stating that ‘the national court’s task is to identify where the jurisprudence of the Strasbourg court clearly shows that it currently stands’.136

127 Baroness Hale, ‘Law Maker of Law Reformer: What is a Law Lady for?’ (2005) 40 Irish Jurist 1, 14. 128 During the debates in passing the Human Rights Bill, Lord Bingham notably stated that ‘it seems to be highly desirable that we in the United Kingdom should help to mould the law by which we are governed in this area’. HL Deb 3 November 1997, vol 582, col 1245. 129 Human Rights Act 1998, s 2. 130 Fenwick et al note that ‘there is the need to interpret the Strasbourg jurisprudence itself, to draw out the principles to be applied, by no means an easy task in many instances, given the characteristics of that jurisprudence’; Helen Fenwick, Gavin Phillipson and Roger Masterman, ‘The Human Rights Act in contemporary context’ in Helen Fenwick, Gavin Phillipson and Roger Masterman (eds), Judicial Reasoning under the UK Human Rights Act (Cambridge University Press, 2007) 7. 131 N v Secretary of State for the Home Department [2005] UKHL 31 [14] (Lord Nicholls). 132 ibid [11] (Lord Nicholls). 133 Re McCaughey and Another [2011] UKSC 20 [130] (Lord Dyson). 134 Nicholas Bratza, ‘The Relationship between the UK Courts and Strasbourg’ (2011) 5 European Human Rights Law Review 505, 510. See also Brenda Hale, ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme? (2012) 12(1) Human Rights Law Review 65, 77. 135 Paul Mahoney, ‘The Relationship between the Strasbourg Courts and the National Courts – as Seen from Strasbourg’ in Ziegler, Wicks and Hodson (eds) (n 116) 22. 136 Lord Kerr, ‘The UK Supreme Court: The Modest Underworker of Strasbourg?’ (Clifford Chance Lecture, 25 January 2012), https://www.supremecourt.uk/docs/speech_120125.pdf, 15. See also Bank Mellat v Her Majesty’s Treasury (No 2) (2013) UKSC 39 [72] (Lord Reed).

Article 1’s Interpretive Communities 57 British judges are socialised to do this in pursuit of ‘legal certainty’ – a fundamental tenet of the domestic legal order. Lord Mance notes how this notion is one that has ‘long shaped views of the judicial role’ and it forms a bedrock of the UK’s constitutional framework.137 Thus, for the domestic judge, clarification is both natural to them, as an aspect of the common law, and essential, in order to allow them to apply rules and to let the parties know what the rules are. The second reason why British judges are predisposed to critique and clarify the law speaks to their relationship with Parliament. National judges provide clear interpretations so that the other branches of the state can be furnished with guidance in respect of what is Convention-compliant. The haziness of some of the Convention case law means that, other than how it applies to the parties in the instant case, the Strasbourg judgment may not indicate with any certainty what the law is. The domestic judge undertakes the role to clarify the law for Parliament – they systematise it so that it is intelligible to those to whom it applies. While doing so, the judges critique aspects of the law that they may not perceive to be appropriate. This analysis is equally as important, as through the public evaluation of different arguments and analysis of Convention jurisprudence, domestic judges are demonstrating to Parliament that they can be trusted to fulfil this task. With the HRA being an ordinary piece of legislation,138 the domestic judiciary are keenly aware that their powers to consider the Convention ‘were conferred by Parliament not grabbed by the Judges’.139 While this does not mean that the national judge will steadfastly rule in favour of the government in order to please Parliament, it has created a more conservative approach to interpretation.140 This is perhaps unsurprising given the unique nature of the HRA in balancing the notions of human rights and parliamentary sovereignty.141 Masterman notes that: ‘Concerns for the preservation of parliamentary sovereignty therefore formed the backdrop to, and produced a vital shaping influence on, the enactment of the HRA.’142 We also see it manifested in the inability of the

137 Lord Mance, ‘Should the Law Be Certain?’ (Oxford Shrieval Lecture, 11 October 2011), https:// www.supremecourt.uk/docs/speech_111011.pdf, [8]; Bingham states that: ‘The law must be accessible and so far as possible intelligible, clear and predictable’; Tom Bingham, The Rule of Law (Penguin, 2010) 37. 138 On the constitutional value of the Human Rights Act 1998 see Dickson (n 121) 17–50. 139 Lord Neuberger, ‘“Judge Not, That Ye Be Not Judged”: Judging Judicial Decision-Making’ (FA Mann Lecture 2015), https://www.supremecourt.uk/docs/speech-150129.pdf, [48]. 140 Dickson (n 121) 51. 141 As then Home Secretary Jack Straw stated during the parliamentary debates on the Human Rights Bill: ‘The sovereignty of Parliament must be paramount’; HC Deb 16 February 1998, vol 306, col 770. 142 Roger Masterman, ‘The United Kingdom: From Strasbourg Surrogacy towards a British Bill of Rights?’ in Patricia Popelier, Sarah Lambrecht and Koen Lemmens (eds), Criticism of the European Court of Human Rights (Intersentia, 2016) 454.

58 Interpreting the European Convention on Human Rights domestic judiciary to strike down laws.143 The judge is only able to engage with Convention rights in the manner in which Parliament has allowed them to do so. This has given rise to a notable debate about the extent to which domestic judges are bound to follow Strasbourg jurisprudence.144 Specific instances have included where judges see the Convention case law as badly informed,145 where they feel Strasbourg is wrong or the jurisprudence is outdated,146 or where the court attaches great weighting to a legislative decision.147 This leads on to the third reason why critique and clarification is the purposive enterprise of the domestic judiciary, as, in doing so, domestic judges open the famed ‘dialogue’ with the ECtHR. This dialogue allows national courts to raise points of concern, seek confirmation and clarity, and outline reasons for departures from the Strasbourg position. Lord Kerr has noted the importance of public analysis of Strasbourg’s position in this regard. He stated that ‘a reluctance to express a view and the effective handing over of the issue to the Strasbourg court would diminish the valuable dialogue that all (who have commented on it) are agreed should take place between the ECtHR and national courts’.148 He continued to note that in order for dialogue to work, ‘both speakers should be prepared, when the occasion demands it, to utter the first word’.149 Lord Neuberger has been keen to impress that the dialogue can also contribute towards European standards.150 This influence is increasingly being recognised at the Strasbourg level and has been of some use in the extraterritorial question. Amos cites the contribution of British judges as having made ‘significant contributions’ to recent developments in ECHR jurisprudence151 and having a ‘remarkable, and growing, influence on the jurisprudence of the Court’.152 Finally, it should be reiterated that the selection of British judges as the object of this study is not to say that the national courts of the UK are somehow more prestigious than those of the other 46 Contracting Parties. As noted, British courts have been selected because of their uniquely important contribution to the extraterritorial question, specifically in cases involving the Iraq conflict that, as will be seen, have shaped the current understanding of jurisdiction.

143 Human Rights Act 1998, s 4. 144 ibid s 3. 145 Manchester City Council v Pinnock [2010] UKSC 45 [48] (Lord Neuberger). 146 R (on the Application of Quila v Secretary of State for the Home Department [2011] UKSC 45 [43]. 147 Masterman (n 142) 476. 148 Lord Kerr (n 136) 13. 149 ibid. 150 Lord Neuberger, ‘The Role of Judges in Human Rights Jurisprudence: A Comparison of the Australian and UK Experience’ (Supreme Court of Victoria, Melbourne, 8 August 2014), https:// www.supremecourt.uk/docs/speech-140808.pdf [31]. 151 Amos (n 2) 775. 152 ibid 785. See also Nicholas Bratza, ‘Address by Sir Nicolas Bratza President of the E uropean Court of Human Rights’ (Strasbourg, 27 January 2012), www.echr.coe.int/Documents/Speech_20120127_ Bratza_JY_ENG.pdf; Mahoney (n 135) 24.

Article 1’s Interpretive Communities 59 D. The Interaction of Interpretive Communities These groups constitute the three primary interpretive communities concerned with the interpretation of the ECHR generally, as well as with extraterritorial obligations in particular. While each community has the agency to render meaning independently, their interpretations do not take place in a vacuum. Instead, these communities are all indelibly influenced by one another in their interpretive exercises. This is because each of their independent purposive enterprises requires consideration of the perceived expectations of the other communities. The Strasbourg community’s enterprise reflects a commitment to the protection of human rights through the safeguarding of state compliance. This inevitably requires a calculation on behalf of the Strasbourg judges of how far they can extend the protection of the rights without risking the commitment from states. It also involves consideration of how domestic judges have ruled in their earlier interpretations and whether an active dialogue is to take place between institutions.153 In being constituted around a commitment to the ECHR system with an aversion for being constrained and found in violation of their human rights obligations, the community of Contracting Parties will inevitably be influenced by the interpretations and rulings of the ECtHR and in their domestic courts. The interpretations rendered in these courts will indicate what is required for compliance and whether there is leeway for the state to act without constraint. Lastly, domestic court interpretations are shaped by an agreed pursuit to critique, clarify and apply the Convention’s provisions. This community is therefore structurally bound to consider the approach of the ECtHR, while doing so in a manner that does not threaten the premise of their authority to act – the consent from Parliament.154 The ongoing individual interpretations provided by these communities can therefore be understood as part of a wider process of meaning-generation. As they do not take place in isolation, but with consideration of the responses and behaviour of other communities, the meaning that develops does so in a somewhat inter-subjective fashion. Interpretive settlement may therefore take years, or even decades, to achieve.155 Input relating to these interpretations can only be given when the issue arises, so the process of interpretation and evaluating interpretations requires either the existence of relevant actions (extraterritorial violations) or disputes (litigation). When such circumstances occur, they serve as ‘a matter of uncovering shared expectations and understandings’ between the communities.156 Therefore while this inter-subjective process of interpretive

153 See especially Jean-Paul Costa, ‘The Relationship between the European Court of Human Rights and the National Courts’ (2013) 3 European Human Rights Law Review 264. 154 Human Rights Act 1998, s 2. 155 As Johnstone comments: ‘The interpretive process tends to be more evolutionary as shared meanings are worked out over time’. Johnstone (n 62) 407. 156 ibid.

60 Interpreting the European Convention on Human Rights communities influencing one another has been present since the Convention’s inception, it is at its most effective when all three communities are forced to engage with the source in a condensed period. For Article 1, the last two decades – and particularly the litigation emerging from the Iraq conflict – has presented such an opportunity.157 VI. CONCLUSION

In the previous chapter, I sought to explain why interpretation has been required in order to develop appropriate meaning in respect of Article 1. This chapter has set about explaining both who generates that meaning and how they go about doing so. As to the ‘who’, it identifies three groups that have the power to generate meaning directly: the Strasbourg Organs, Contracting Parties and national courts (with a focus on the domestic courts of the UK). For the ‘how’, it is suggested that rather than being wholly constrained by either interpretive rules or being totally liberated to advance a meaning to suit their own interests, those who have created the understanding of jurisdiction in Article 1 have done so as members of an interpretive community. These communities are populated by individuals who approach an interpretive task with a preconceived understanding of what their purposive enterprise is towards that activity. In turn, this shapes the way in which individuals undertake interpretations – what arguments they advance, moves they make and practices they adhere to. It does not suggest that they will always arrive at the same position; indeed, argument and debate are healthy characteristics of an interpretive community. Instead, what binds these communities is a clear enterprise that informs a shared conception of how they can undertake these deliberations. Having presented this argument for how meaning is generated by positioning the lens through which each interpretive community views their task, the next phase is to demonstrate how this informs the actual interpretive activities which are taken, what strategies are adopted and what moves are made to fulfil the purposive enterprise. This takes us back to the earliest interpretation of the Convention’s scope in application by the EComHR.

157 This will be considered in detail in ch 7. See also Clare Ovey, ‘Application of the ECHR during International Armed Conflicts’ in Ziegler, Wicks and Hodson (eds) (n 116) 225.

3 Incremental Normalisation The Strasbourg Approach 1953–2001 I. INTRODUCTION

I

an Johnstone observes how: ‘Texts do not have properties before they are encountered in situations; the meanings they have are always a function of the circumstances in which they are encountered.’1 When the ECHR entered into force on 3 September 1953, its text held a degree of provisionality. The Convention was peppered with a host of indeterminate words and phrases that required interpretation in the context of a particular situation in order to attribute meaning. What differentiated torture from inhuman and degrading treatment?2 Which activities would fall within the scope of servitude?3 What were the parameters of a private and family life?4 When would a public emergency be severe enough to threaten the life of a nation?5 It would not be until these terms were tested in litigation that their meanings would emerge. Until then, the text would hold a conditional meaning – one that was given to it by the drafters of the treaty and yet one that was still profoundly malleable. For Article 1, the phrase ‘within their jurisdiction’ was similarly amorphous. The solution to such textual indeterminacy lies in a process of clarification,6 and so my focus moves away from the source to the interpreters who undertake this exercise.7 This is not to say that interpreters can provide any meaning they feel fit. They are sufficiently constrained by the word to prevent them from

1 Ian Johnstone, ‘The Power of Interpretive Communities’ in M Barnett and R Duvall (eds), Power in Global Governance (Cambridge University Press, 2004) 190. James Madison made a similar point over two centuries before this in relation to the US Constitution: ‘All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.’ See James Madison, The Federalist Papers (1788) 229. 2 European Convention on Human Rights 1950, art 3. 3 ibid art 4. 4 ibid art 8. 5 ibid art 15. 6 Thomas Franck, The Power of Legitimacy among Nations (Oxford University Press, 1990) 67. 7 The clarifying exercise has been described as ‘process determinacy’; ibid 80.

62 Incremental Normalisation providing a wholly arbitrary definition. More significantly, however, interpreters are constrained by the community to which they each belong. Membership of these communities set the rules for how the word can be interpreted, what arguments can be made and therefore what meaning it can take. In this chapter, and the four which follow, I trace the connection between the purposive enterprises of Article 1’s three interpretive communities – that motivating factor that sets it on a particular course – and the ‘moves’ which these communities have performed. In doing so, I will be charting the interpretive history of how meaning has been attributed to Article 1, retelling its development through its interpreters rather than the source. At the same time, the question that will be asked is whether the textual indeterminacy has been ameliorated by this process of clarification. To quote Franck: ‘If it is not, then the text will be seen to lack the ability to describe, predict, and prescribe actual state conduct. It will have minimal compliance pull.’8 This chapter discusses the initial period of activity involving the European Commission and, much later, the ECtHR, from the Convention’s inception until 2001.9 Rather than addressing this development in a linear manner, my aim is to demonstrate the interpretive practices at play amongst the judges and this requires some deviation from a steadfastly chronological approach. The analysis begins with a consideration of the initial efforts by the Strasbourg community to address the extraterritorial question with focus on the interpretive departure point in the case of X v Federal Republic of Germany.10 The chapter then identifies three practices adopted by the Strasbourg community – judicial minimalism, enhanced justification and context consideration – and connects each of these actions to the community’s underlying enterprise to protect the individual while securing state compliance. It concludes with some reflections on the character of this period. II. THE POINT OF DEPARTURE

Under the ‘old system’, allegations that a Contracting Party had violated one of the Convention rights would initially be subject to a preliminary examination by the EComHR in order to determine the admissibility of the complaint.11 In the event that the Commission declared an application admissible, it would proceed to investigate the merits of the accusation and draft a report considering whether a breach of the Convention had occurred. This report would then be transmitted to both the parties involved and the Committee of Ministers. 8 ibid. 9 ibid 61. 10 X v Federal Republic of Germany App No 1611/62 (EComHR, 25 September 1965). 11 While states were free to bring these claims in accordance with art 24, it was only possible for individuals to bring them where the relevant Contracting Party had accepted the right of individual application in accordance with the former art 25.

The Point of Departure 63 Only then, and where the relevant respondent state had accepted its jurisdiction, would the ECtHR become involved. While the Commission and the Contracting Party could refer the case to the Court for a final binding judgment, individuals could only bring their application to the Court where the state had ratified the relevant protocol to the treaty.12 This early institutional framework meant that, despite being the more authoritative arbiter, the ECtHR was seldom called upon to issue judgments in the Convention’s early decades.13 The ECtHR would not be in a position to interpret Article 1 until the 1990s, meaning that for over 30 years, the task of defining the scope of the Convention’s application sat solely with the EComHR.14 The first case in which the Commission was compelled to provide an understanding of ‘jurisdiction’ in Article 1 was X v Federal Republic of Germany.15 This extraordinary application, involving both espionage and a challenge to a duel, took place in Morocco.16 The applicant alleged that because of personal disagreements with the German Consul in Casablanca and the Secretary of the Consulate in Tangiers, he had inter alia lost his title of nobility, been deported and suffered a loss of property, and his wife had lost her employment.17 He contended that these actions gave rise to breaches of the Article 3 prohibition of inhuman and degrading treatment, the Article 5 right to liberty, the Article 6 right to a fair trial and the Article 8 right to a private and family life. The case was ultimately dismissed as being manifestly ill-founded, yet in its consideration the Commission indicated that the applicant could otherwise have fallen within West German jurisdiction. It noted that: Whereas, in certain respects, the nationals of a Contracting State are within its ‘jurisdiction’ even when domiciled or resident abroad; whereas, in particular, the diplomatic and consular representatives of their country of origin perform certain duties with regard to them which may, in certain circumstances, make that country liable in respect of the Convention.18

The premise of this finding was that ‘nationals of a Contracting State are within its “jurisdiction” even when domiciled or resident abroad’.19 As was discussed in 12 European Convention on Human Rights 1950, former art 25. 13 By 1974, the ECtHR had only heard 17 cases. 14 The first case where the ECtHR would give consideration was Drozd and Janousek v France and Spain (1992) 14 EHRR 745. 15 X v Federal Republic of Germany (n 10) 158. Pedersen references the earlier case of X et al v Belgium App No 1065/61 (EComHR, 30 May 1961) as the first case involving the extraterritorial application of the Convention. While this is correct in part, it was resolved through recourse to art 56 (the colonial provision) and so offered no enlightening discussion on art 1 jurisdiction. See Morten Peschardt Pedersen, ‘Territorial Jurisdiction in Article 1 of the European Convention on Human Rights’ (2004) 73 Nordic journal of International Law 279, 284–85. 16 Lord Phillips would refer to the case as ‘bizarre in the extreme’: R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643 [31] (Lord Phillips). 17 X v Federal Republic of Germany (n 10) 162. 18 ibid 168. 19 ibid.

64 Incremental Normalisation Chapter 1, this nationality principle is one of the most widely accepted personal bases for the exercise of jurisdiction in public international law. Nonetheless, this statement does not suggest that nationals are within a state’s jurisdiction at all times; instead, it qualifies this with the phrase ‘in certain respects’. The triggering factor that appears to bring individuals within a state’s jurisdiction is the performance of actions by diplomatic and consular agents.20 The activity of conducting ‘certain duties with regard’ to nationals enacts the exercise of jurisdiction and the ensuing rights and obligations that follow.21 Thus, from its first consideration of Article 1, the Commission indicated that it would apply a factual test to ascertain whether a state exercised jurisdiction extraterritorially, with a focus on the actions of state agents towards the individual in question. The significance of this passage for the future understanding of Article 1 should not be underestimated. Given the focus on territory during the early stages of the Convention’s drafting, it would have come as little surprise if the Commission were to have adopted a restrictive territorial interpretation of Article 1 jurisdiction at the outset of this case. Such an understanding would have been very difficult to displace, at least until the emergence of the doctrine of the living instrument over a decade later.22 Instead, without any direct engagement with the word ‘jurisdiction’, the Commission read Article 1 to allow for the Convention’s extraterritorial application. Doing so almost wholly eradicated the notion that the Convention was an instrument of domestic application only. Moreover, it pointed the direction of travel for any future litigation on the subject. The next time that the Commission would consider the notion of jurisdiction, it would refer to X v Federal Republic of Germany and note: ‘As the Commission has already decided, a State is under certain circumstances responsible under the Convention for the actions of its authorities outside its territory.’23 This is not to suggest that the finding gave an express indication in favour of the Convention’s extraterritorial scope in application. Instead, its significance lies in its implicit rejection of a strictly territorial understanding and that it therefore opened the door for more generous interpretations to be taken in later judgments. These interpretations were to follow in a series of patterns of interpretive moves consistent with the community’s purposive enterprise. A. Interpretive Moves The existence of a purposive enterprise in the constitution of an interpretive community means that the community is permanently predisposed to render 20 ibid. 21 ibid. 22 One that could only be challenged through the doctrine of the living instrument, which would not emerge until the late 1970s; Tyrer v UK (1979–80) 2 EHRR 1. The use of the living instrument in the interpretation of jurisdiction would become a point of major contention in Banković and Others v Belgium and Others (2007) 44 EHRR SE5 [62]–[63], discussed in ch 4, pp 89–101. 23 Ilse Hess v UK (App 6231/73) 28 May 1973 EComHR 2 DR 72, 73.

Judicial Minimalism 65 an interpretation in line with its organising goal or objective.24 Therefore, in a sense, the internal behaviour of interpreters does not change in light of how complex or politically sensitive a case may be. As the assumptions that inform their purposive enterprise are always in place, they are not altering their behaviour in response to a particularly tricky set of circumstances, but instead their behaviour is already primed to address those circumstances as and when they arise. Their strategic behaviour is therefore not dormant, waiting for the right set of facts to pounce, but ever-present, ingrained in the very outlook that constitutes them as a community. While it may appear that in ‘easy’ cases an interpreter is not acting strategically and in ‘hard’ cases they are, in effect the interpreter is not manipulating their behaviour in relation to the situation at all, but is instead adhering to their most basic intrinsic common assumption. Fish articulates this further: Interpretation is not an abstract or contextless process, but one that elaborates itself in the service of a specific enterprise, in this case the enterprise of the law; the interpretive ‘moves’ that occur to a judge, for example, occur to him in a shape already informed by a general sense of what the law is for, or what its operations are intended to promote and protect.25

As I have argued in Chapter 2, for the Strasbourg judiciary, the goal can be taken to be the protection of the rights of the individual while ensuring the ongoing compliance of states with the Convention system. However, in order to achieve this, the judges cannot overtly be seen to follow this purpose in every judgment. After all, states will not want to be part of a system that is driven in such a distinctly haphazard manner. Instead, the interpreters must engage in a series of ‘moves’ in order to cover their tracks, so to speak. While these practices blend into one another in this initial period and have considerable overlap, they can be distilled into three different approaches. III. JUDICIAL MINIMALISM

The first of these moves is what Cass Sunstein refers to as judicial minimalism.26 This is where courts give deliberately shallow or narrow judgments in order to avoid addressing wider normative issues within a particular area to minimise the cost of their decisions either being incorrect or correct but unpopular.27 Dorf contends that this practice is a characteristic of judicial organs like the ECtHR: When experimentalist courts must resolve the most contentious questions the legal system poses, they give deliberately incomplete answers. Thus, in prospect at least, 24 Richard Mullender, ‘There is No Such Thing as a Safe Space’ (2019) 82(3) MLR 549, 549–50. 25 Stanley Fish, ‘Fish v. Fiss’ (1984) 36(6) Stanford Law Review 1325, 1341–42. 26 Cass R Sunstein, ‘Beyond Judicial Minimalism’ (2007) 43 Tulsa Law Review 825. See also Cass R Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard University Press, 1999); Cass R Sunstein, ‘Minimalism at War’ (2004) Supreme Court Review 47. 27 Sunstein, ‘Beyond Judicial Minimalism’ (n 26) 825.

66 Incremental Normalisation experimentalist appellate courts that declare rights based on irreducibly ambiguous authority deliberately include ambiguity in their own pronouncements by establishing a framework for resolution rather than anything like comprehensive blueprints.28

The early jurisprudence on Article 1 demonstrates two aspects of such judicial minimalism at play: a commitment first to incremental development and, second, to retaining flexibility for future decisions. A. Incrementalism The case of X v Federal Republic of Germany established the potential for the Convention’s extraterritorial application as the departure point for the understanding of jurisdiction. The sporadic decisions that followed incrementally normalised this trajectory in an uncontentious manner through a pattern of lowkey developments within the case law. During this early period, the community’s approach was not to provide wide-ranging judgments with clear articulations of the law, but instead to develop Article 1’s understanding on a case-by-case basis and through application to the facts. For Sunstein, this approach is used by minimalists in order to produce answers that are shallow rather than deep. They ‘want to leave the foundational issues undecided … to decide what to do, today or tomorrow or next month, without resolving the deepest questions, or without accepting some large account of how the relationship or the problem should be handled’.29 He notes that in doing so, they ‘prefer small steps over large ones’.30 Thus, throughout this early body of jurisprudence, there was little said on what jurisdiction in Article 1 meant, and so any understanding of it would have to be derived from how it was applied. This pattern is particularly demonstrable in the earliest applications to consider the Convention’s scope including the case of Hess v UK.31 Hess concerned the detention of Hitler’s Deputy Fuhrer who had parachuted into Scotland in 1941 purportedly to open peace talks. He was subsequently detained by the British authorities, before later being convicted of war crimes and transferred to Spandau Prison in Berlin. Hess’ wife complained that his continuing detention as the last prisoner in Spandau was in violation of Articles 3 and 8. The Article 3 application concerned the fact that between 1968 and 1975, Hess, who had not been condemned to solitary confinement, was placed there de facto by the lack of any other prisoners at the site. The Article 8 application concerned her right to a private and family life due to the prolonged detention of her husband.

28 Michael C Dorf, ‘Legal Indeterminacy and Institutional Design’ (2003) 78 New York University Law Review 875, 886. 29 Sunstein, ‘Beyond Judicial Minimalism’ (n 26) 826. 30 ibid 825. 31 Hess (n 23).

Judicial Minimalism 67 On the question of whether the UK exercised jurisdiction pursuant to Article 1, the Commission noted that the arrangement for administering the prison was shared between the four powers of France, the USSR, the UK and the US. The EComHR was therefore tasked with considering not only whether the UK was exercising jurisdiction extraterritorially, but also whether that jurisdiction was limited by the involvement of other states, none of whom was a party to the treaty.32 It found that this shared responsibility displaced any jurisdiction the UK exercised over Hess. In particular, it noted that the UK had entered the Spandau agreement before ratifying the Convention33 and, regardless of whether Britain agreed with the applicant’s submissions, it alone could not secure his release.34 Despite this, the Commission’s judgment declared that there was ‘in principle, from a legal point of view, no reason why acts of the British authorities in Berlin should not entail the liability of the United Kingdom under the Convention’.35 While not providing a clear indication of what jurisdiction meant, this decision reinforced the notion that the Convention could have extraterritorial application and that jurisdiction was not coextensive with territory. Similar to X v Federal Republic of Germany, this judgment also did so in a benign manner, with the comments having little impact on the decision. A series of other Commission decisions further demonstrate this. In X and Y v Switzerland, X lived in Munich, but had entered Lichtenstein, where he spent a proportion of the year living with his partner and their two children. Lichtenstein had a law that prohibited foreigners from staying for over 90 days a year. This law was proclaimed through a measure based on Swiss law that was applicable because Switzerland had signed a treaty with Lichtenstein allowing for the Swiss Aliens Police to operate in Lichtenstein in respect of third-country nationals. On one of X’s visits, he was struck down with an illness that was later diagnosed as Parkinson’s disease. This caused him to overstay his statutory visiting rights within Lichtenstein and he was subsequently issued with an order preventing his entry into the country for two years. He and his partner complained against a series of violations of their Convention rights.36 In assessing whether Switzerland had exercised jurisdiction pursuant to Article 1, the Commission looked at both Swiss legislation and the actions of the Swiss agents. It held that although the actions that gave rise to a violation took place in Lichtenstein, ‘Switzerland is certainly responsible, under Article 1 of the Convention, for the procedure and for the effect which the prohibition of entry produced in its own territory’.37 The acts of the Swiss authorities that took effect in Lichtenstein therefore brought all those affected within Swiss jurisdiction.38 32 France ratified the Convention in 1974 and Russia did so in 1998. 33 Hess (n 23) 74. 34 ibid 73. 35 ibid. 36 Article 2 (Right to Life), art 3 (Prohibition on Torture), art 5 (Right to Liberty and Security), art 6 (Right to a Fair Trial) and art 8 (Right to Respect for Private and Family Life). 37 X and Y v Switzerland (1977) 9 DR 57, 73. 38 ibid.

68 Incremental Normalisation X v UK concerned a complaint by a British mother, whose daughter had been taken to Jordan by her father.39 The applicant requested that the British Consul in Amman obtain custody of the child. The consulate reported on the daughter’s wellbeing, provided the applicant with a list of lawyers practising in Jordan and registered her under her passport. X saw these actions as unsatisfactory and alleged violations of her Article 8 right to a family life. Although the Commission found this application to be manifestly ill-founded, it reaffirmed that diplomatic and consular agents could bring individuals within their jurisdiction. According to the Commission, they did so ‘to the extent that they exercise their authority’ over the individual.40 Importantly, in addressing the issue, the Commission referred to its ‘constant jurisprudence’ on the jurisdiction question.41 Therefore, by this stage in the early 1980s, it could be said that what had been a brief remark in X v Federal Republic of Germany was incrementally becoming entrenched in the Commission’s jurisprudence. The case of Stocké involved an individual who was attempting to evade punishment for tax offences committed in his native Germany. He first fled to Switzerland and then to France, where, with the assistance of a private police informer, he was tricked into returning to his homeland. Stocké felt that he had been the victim of unlawful collusion between the German authorities and the informer. While the Commission discounted this, it did examine whether jurisdiction would otherwise have arisen, noting that state agents ‘bring any other person “within the jurisdiction” of that State to the extent that they exercise authority over such persons’.42 This pattern continues into the early 1990s case of Drozd and Janousek v France and Spain, where the interpretive community broadened to include members of the ECtHR for the first time.43 Drozd and Janousek had been arrested and charged with an armed robbery committed in Andorra. They were subsequently convicted by an Andorran Court, sentenced to 14 years’ imprisonment and expelled from the principality. At the time, Andorra enjoyed a unique position in international law, in that it drew its judiciary from both France and Spain. The applicants complained of violations of Articles 5 and 6 of the Convention in respect of their detention and trial and, since it was French and Spanish judges hearing the case, the complaints were directed against France and Spain. In assessing the question of jurisdiction, the Court found that although the actions of a state’s authorities producing effects outside their territory can give rise to jurisdiction, they did not do so in this case as the judges had acted in their personal capacity and not as French or Spanish judges.44 For its part, 39 ibid. 40 X v UK (1977) 12 DR 73. 41 ibid 74; WM v Denmark (1993) 15 EHRR CD 28. 42 Stocké v Germany (1991) 13 EHRR CD126 [166]. 43 Citing earlier jurisprudence, the Commission stated that ‘the responsibility of a High Contracting Party can be engaged by acts of its authorities producing effects outside its own territory’; Drozd and Janousek (n 14) [79]. 44 ibid [96]–[98].

Judicial Minimalism 69 the Court held that jurisdiction was ‘not limited to the national territory of the High Contracting Parties; their responsibility can be involved because of acts of their authorities producing effects outside their own territory’.45 Similar to the earlier cases, the text of this passage seemingly suggests a broad approach whereby an individual can be brought within the jurisdiction of the state if they suffer from the effects of a Contracting Party’s actions. Being the first case considered before the ECtHR, this judgment has received a larger degree of academic commentary than the previous EComHR hearings. Orakhelashvili asserts that the finding suggests that ‘extraterritorial applicability is a normal consequence of Article 1 – it applies merely by virtue of the state’s conduct having consequences outside the territory of that state’.46 This opinion is consistent with the earlier jurisprudence and, in being a finding of the ECtHR, contributed to the normalisation of the Convention’s extraterritorial application. Although again jurisdiction was not found, the recognition of the possibility of the Convention’s extraterritorial application further cemented its interpretation within the Convention framework. Across these cases, the Strasbourg Organs were therefore able to expand the Commission’s brief passage in X v Federal Republic of Germany into a general understanding that a state’s obligations under the Convention did not stop at their borders. B. Retaining Flexibility In addition to the incremental normalisation of extraterritorial obligations, a parallel interpretive move by the Commission was to layer the understanding of jurisdiction with added ambiguity in both the text of the decision and the ultimate basis upon which jurisdiction was found. This style of judicial minimalism allows decision-makers to promote future flexibility. As Sunstein notes, minimalists ‘want to decide what to do about next month’s vacation, or a current problem in the workplace, without deciding how to handle many future vacations, or what to do about problems in the workspace in general’.47 i. Textual Ambiguity This textually ambiguous approach is evident in the first inter-state cases to consider Article 1. In the early 1970s, Cyprus brought two inter-state applications against Turkey in relation to alleged violations arising from the 1974 45 ibid [91]. 46 Alexander Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’ (2003) 14(3) European Journal of International Law 529, 545. See also Virginia Mantouvalou, ‘Extending Judicial Control in International Law: Human Rights Treaties and Extraterritoriality’ (2005) 9(2) International Journal of Human Rights 147, 152. 47 Sunstein, ‘Beyond Judicial Minimalism’ (n 26) 826.

70 Incremental Normalisation invasion and occupation of the north of the island.48 At the initial admissibility hearing before the Commission, Turkey argued that the application was inadmissible as the alleged violations had not taken place within its jurisdiction as that term was to be understood in Article 1.49 In considering the scope of the Convention’s obligations, the Commission commenced from the premise that it had established in X v Federal Republic of Germany and Hess, and reaffirmed that ‘jurisdiction’ was not ‘equivalent to or limited to the national territory of the High Contracting Party’ concerned.50 It then went on to consider the meaning of the word ‘jurisdiction’: It is clear from the language, in particular of the French text, and the object of this article, and from the purpose of the Convention as a whole, that the high contracting parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised within their territory or abroad.51 (Emphasis added)

The Commission therefore interpreted jurisdiction to mean ‘actual authority and responsibility’, and yet its interpretations did not stop there. When considering how an individual would fall within a state’s jurisdiction, it noted that: [A]uthorised agents of a State, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property ‘within the jurisdiction’ of that State, to the extent that they exercise authority over such persons or property. Insofar as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged.52 (Emphasis added)

Thus, the word ‘jurisdiction’ was understood to refer to the ‘actual authority and responsibility’ of the state. This in turn was to be understood to be engaged where the state’s agents’ exercise ‘authority’ over an individual, which was in turn simplified to mean when their actions ‘affect’ people.53 This interchangeability continued further, with the Commission stating: It follows that these armed forces are authorised agents of Turkey and that they bring any other persons or property in Cyprus ‘within the jurisdiction’ of Turkey, in the sense of article 1 of the Convention, to the extent that they exercise control over such persons or property.54 (Emphasis added)

Two brief remarks can be made about the development of the word ‘jurisdiction’ by the Commission in this manner. The first relates to the phrase ‘in the 48 Cyprus v Turkey (1982) 4 EHRR 482. Notably this judgment was released two days after the Hess decision. 49 ibid 586. 50 ibid. 51 ibid. 52 ibid 586. 53 King submits this to be a ‘cause and effect notion of ‘jurisdiction’; Hugh King, ‘The Extraterritorial Human Rights Obligations of States’ (2009) 9(4) Human Rights Law Review 521, 530. 54 Cyprus v Turkey (n 48) 587.

Judicial Minimalism 71 sense of article 1 of the Convention’. This statement is an indication that jurisdiction, a word carrying numerous meanings across international and domestic law, does indeed have its own specific meaning within Article 1 ECHR.55 It is a confirmation by the Commission that it was not merely applying a pre-existing understanding of ‘jurisdiction’, but considered itself to be tasked with inventing human rights jurisdiction. Second, it is evident that ‘authority and responsibility’, which in turn became ‘affect’, was then replaced by, or assimilated with, the notion of ‘control’. Therefore, according to the Commission, it was the exercise of ‘control’ which triggered state jurisdiction under Article 1. This remains a highly uncertain term. While the word directs interpreters to adopt a factual test of whether control is exercised, it still leaves almost as many questions as answers and the intention behind its meaning can only be understood with recourse to its individual application in the Commission and Court’s case law. Reflecting on the other cases during this period, it is evident that if jurisdiction meant ‘control’, then it could take a range of different forms. In X v Federal Republic of Germany, control may arise where a consular agent triggers the state’s liability through conducting particular actions.56 Conversely, control in Hess would suggest a more formal, physical understanding through detention.57 Control in X and Y v Switzerland and Drozd v Janousek would arise where the actions of a Contracting Party produced an effect,58 while in X v UK and Stocké, control would have emerged where a state exercised ‘their authority’.59 Given the nature of the allegations in the inter-state Cyprus v Turkey application, including murder, rape and theft of property, it would appear that the word ‘control’ was being used in a general sense so as to refer to the ability of Turkish agents to affect the rights of Cypriot civilians. In many ways, therefore, while the Commission’s interpretations were in a progressive direction, they merely relocated the indeterminacy from the word ‘jurisdiction’ to the word ‘control’. ii. Decision Ambiguity The second practice of narrow minimalism was to avoid expressly articulating the basis upon which a jurisdictional finding was made. This is evident in a series of cases involving the detention of individuals. The first group of these cases concerned instances where an individual was detained in a territory outside of Europe by agents of the forum state, before being transferred into the custody

55 This point has not been lost on others. For instance, in the Smith case before the UK Supreme Court, Lord Collins noted that: ‘Not every use of the expression “jurisdiction” in international law is co-terminus with that in article 1.’ See R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2011] 1 AC 1 (SC) [238]. 56 X v Federal Republic of Germany (n 10) 168. 57 Hess (n 23). 58 X and Y v Switzerland (n 37) 73. 59 X v UK (n 40); Stocké v Germany (n 42) [166].

72 Incremental Normalisation of the Contracting Party and then immediately returned by plane to Europe. Freda v Italy concerned an Italian who had fled to Costa Rica while appealing against a murder conviction in Italy.60 Reinette v France concerned a French national who was wanted by the authorities in relation to a number of bomb attacks which had taken place in Guadeloupe.61 Altmann v France concerned a German national who had been a senior officer in the Nazi police during the occupation of France and who had been pursued to Bolivia by French police.62 Finally, Sanchez Ramirez v France concerned the arrest of Carlos ‘the Jackal’, a self-professed ‘revolutionary’ who was captured by French forces, assisted by his own security detail, following a medical operation in Sudan.63 In each case, the Commission was willing to find jurisdiction from the time that the individual was handed over to the agents of the Contracting Party. Thus, in Freda the Commission found the applicant to be within Italian jurisdiction ‘from the time of being handed over’ to the Italian police.64 In Altmann the same can be said for when the applicant was handed over to the French police.65 In Reinette the Commission stated that ‘from the moment he was handed over the applicant was effectively subject to French authority’.66 Finally, in Sanchez Ramirez, it was held that ‘from the time of being handed over to those officers, the applicant was effectively under the authority, and therefore the jurisdiction, of France’.67 A fifth case relates to the activities of diplomatic and consular agents in East Berlin. In WM v Denmark the applicant, intent on leaving East Germany, entered the premises of the Danish Embassy with 17 other East German citizens and requested negotiations with the relevant authorities concerning permits to leave the country.68 At the request of the Danish ambassador, the East German police entered the embassy and removed the group from the building. The applicant was subsequently sentenced to conditional imprisonment for his actions. Following his release, he alleged that the actions of the Danish ambassador, in calling the East German police to have him removed, had violated his rights under the Convention. The Commission noted that Danish agents exercised jurisdiction ‘[i]n so far as they affect such persons or property by their acts or omissions’.69 The similarities across these cases should all indicate a readily intelligible basis for finding jurisdiction, and yet given focus, jurisdiction could have been ascertained on several different premises. First, one could read them to

60 Freda

v Italy (1980) 21 DR 250. v France (1989) DR 63, 189. 62 Klaus Altmann (Barbie) v France (1984) 37 DR 230. 63 Sánchez Ramirez v France (1996) 86 DR 155. 64 Freda (n 60) 256. 65 Altmann (n 62) 233. 66 Reinette (n 61) 193. 67 Sánchez Ramirez (n 63) 161–62. 68 WM (n 41). 69 ibid. 61 Reinette

Judicial Minimalism 73 mean that jurisdiction arose on the basis that the individual in question was brought within the physical control and custody of the Contracting Party’s agents.70 This would be the most likely basis and the cases would therefore be examples of an emerging bespoke Article 1 approach to jurisdiction seen in Cyprus v Turkey and involving a factually orientated question of control.71 The WM case is particularly supportive of this position, in that it echoed some of the language in earlier judgments. Second, jurisdiction could have arisen on the basis of the exercise of enforcement jurisdiction and premised on public international law principles. The participation of forum state agents in the arrest and handover could indicate that the necessary consent was granted by the host state to the exercise of jurisdiction by the agents of the respective Contracting Party. Moreover, the use of the word ‘authority’ in both Reinette and Sanchez Ramirez may have indicated a requirement for some form of legal authority. Third, these cases could suggest the exercise of ‘flag principle’ jurisdiction. Only in WM is the actual location of the handover clearly indicated, leading some to later speculate whether jurisdiction emerged in this case on a spatial basis.72 In the forced returns cases, the location of the arrest was not always entirely clear. If custody was taken in the car park outside of the airport, in an administration office within the airport or on the tarmac of the runway, then the Commission would have made a finding that jurisdiction was exercised, at least for a short period, by virtue of one of the above premises.73 Yet if the exercise of jurisdiction only commenced once on board the vehicle or aircraft due to return the individual to Europe for prosecution, it raises the possibility that the jurisdiction was a simple exercise of the flag jurisdiction a state exercises over its ships and, in this context, aircraft.74 While this division of three distinct possibilities may appear to be a pedantic complaint, it is an issue that specifically emerged as a point of significance in the more recent Iraq jurisprudence in the UK courts.75

70 Stuart Wallace, The Application of the European Convention on Human Rights to Military Operations (Cambridge University Press, 2019) 45; Michael Duttwiler, ‘Authority, Control and Jurisdiction in the Extraterritorial Application of the European Convention on Human Rights’ (2012) 30 Netherlands Quarterly of Human Rights 137, 139–41. 71 Cyprus v Turkey (n 48) 586. 72 R (Al-Skeini and Others) v Secretary of State for Defence [2004] EWHC 2911 (HC) [212] and [254] (Rix J). The Freda case is particularly supportive of this, as it suggests that he was deprived of his liberty ‘in an Italian Air Force aeroplane’; Freda (n 60) 256. Similarly, Sanchez Ramirez suggests a handover to French agents at the steps to the plane; Sánchez Ramirez (n 63) 161–62. 73 In Reinette, the applicant alleged he had been manhandled on the runway in being handed over to French police; Reinette (n 61) 193. 74 Hirst sets out the nature of this exception: ‘International law has long recognized the right of a state to apply, and if necessary enforce, its criminal jurisdiction aboard ships that fly its flag, as if any acts committed aboard such ships had been committed within its own territory.’ See Michael Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford University Press, 2003) 52. 75 Such a connection was made in the High Court Al-Skeini litigation: ‘one would tend to regard this as a decision within the exception regarding vessels and aircraft, if indeed there was any need to treat the flight and his detention on board separately from his detention in France’.

74 Incremental Normalisation C. Minimalism and the Purposive Enterprise As an interpretive move, judicial minimalism is entirely in adherence with the Strasbourg community’s purposive enterprise of enhancing human rights protections without risking state compliance. In relation to the first minimalist practice, incrementalism advanced the protection of the individual without suffering any significant loss of state support.76 This latter aspect was of considerable importance for the fledging human rights system. A clear indication that the Convention could be applied extraterritorially in a variety of circumstances was not an admission that would have encouraged greater commitment from dubious Contracting Parties.77 The initial decisions on the Convention’s extraterritorial application fell at a time when the system was still in its ‘infancy’78 and when the Commission was ‘seeking to build confidence’.79 Madsen describes the Convention during this period as a ‘fragile human rights system’80 that was struggling to ‘maintain narrow legal authority’ amongst the states it monitored.81 After one of the earliest applications between Greece and the UK, where the latter was challenged for its activities in Cyprus,82 there were threats to denounce the ECHR.83 More commonly, states would threaten not to renew their consent to have the Strasbourg Organs hear individual applications against them.84 The Belgian government considered leaving the Convention during the Belgian Linguistics case of 1968.85 During the 1970s, the judgment in the East-Asian Africans case

R (Al-Skeini) (HC) (n 72) [212] and later ‘Sánchez Ramirez’s case is a case about a French military aircraft’ [254]. However, compare this with the Court of Appeal judgment: ‘These cases have nothing to do with the principle of public international law relating to activities within aircraft registered with a state when the aircraft is airborne. They reflect examples of the SAA doctrine applying when someone is within the control and authority of agents of a contracting state.’ R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust and Another Intervening) [2006] 3 WLR 508 (CA) [107]. 76 As Dothan notes: ‘Incrementalism in the ECtHR’s approach has allowed it to increase demands without facing the backlash of resistance. It is aided by the fact that incrementalism allows for changes to appear consistent.’ See Shai Dothan, Reputation and Judicial Tactics: A Theory of National and International Courts (Cambridge University Press, 2015) 236. 77 Yuval Shany contends that a similar gradual expansion in the scope of human rights obligations has also taken place in other treaties; Yuval Shany, ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Laws’ (2013) 7 Law and Ethics of Human Rights 47, 50. 78 Ed Bates, The Evolution of the European Convention on Human Rights, From its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press, 2010) 198. 79 ibid 145. 80 Mikael Rask Madsen, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’ (2016) 79 Law & Contemporary Problems 141, 146. 81 ibid 141. 82 Kingdom of Greece v UK App No 176/56 (EComHR, 2 June 1956). 83 Bates (n 78) 196. 84 ibid 145. 85 ibid 225.

Judicial Minimalism 75 resulted in British threats to withdraw the right to individual petition.86 Later in the 1980s, the UK, West Germany and Switzerland all renewed their threats to leave the Convention system.87 Against this backdrop of temperamental state commitment, the Commission managed to not only recognise but also normalise the Convention’s extraterritorial application to such an extent that all existing and future Contracting Parties would have an awareness that their actions abroad might be subject to review. By the time the issue became contested by more than a few states, the Commission had already developed an artillery of jurisprudence to rely upon in order to demonstrate that the Convention’s extraterritorial applicability had been consistently recognised. As such, as O’Boyle appropriately comments, the Commission’s early approach: [W]as extremely cautious in limiting its interpretation of ‘jurisdiction’ to the cases at hand. It did not develop any general theory of extraterritorial jurisdiction setting out the limits of the concept. There were no broad pronouncements. The notion of ‘jurisdiction’ was pushed to the limited extent permitted by the ‘authority and control’ test in a case to case manner. In retrospect, it seems clear that the Commission was well aware of the risks inherent in asserting a global approach to jurisdiction.88

The success of this practice is closely related to the second identifiable pattern in the activity of this interpretive community: retaining flexibility. This process of leaving gaps within the generation of meaning was a feature of the Convention’s early jurisprudence. As Sunstein notes, minimalists ‘avoid broad rulings and theoretical ambition’.89 The Commission’s judgments would tend to address only the specific issues arising in the case at hand, while avoiding casting what Madsen describes as ‘a broader normative shadow’ beyond that judgment.90 White has commented that ‘the Court generally eschews abstract theorising and favours the incremental evolution of its principles’.91 Bates notes that this practice was followed by the Strasbourg Organs until the late 1970s and that ‘only very occasionally did they include general statements of principle on matters as fundamental as the interpretation of the Convention. Even then, such statements were invariably very short and not particularly revealing’.92

86 Note that the UK had only accepted the right to individual petition in 1966. Individual petition would not be compulsory until Protocol 11 came into force on 1 November 1998. For further discussion, see ibid 247. 87 ibid 427–29. 88 Michael O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on ‘Life after Bankovic’ in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 128. 89 Sunstein, ‘Beyond Judicial Minimalism’ (n 26) 825. 90 Madsen (n 80) 146. 91 Robin White, ‘The Creativity of the European Court of Human Rights’ (2005) 5(1) Human Rights Law Review 57, 61. 92 Bates (n 78) 321.

76 Incremental Normalisation The principal benefit of this approach was to leave the Strasbourg Organs with a high degree of flexibility to decide future cases without having to navigate a clearly fixed judicial position.93 Taking such an approach allows the community to mould its interpretive actions in accordance with how its purposive enterprise can best be served at the relevant time. For the Strasbourg Organs, this will normally result in the protection of the individual and yet there are occasions when the judges must face the other way and make decisions to protect state compliance. Under these circumstances, the flexibility and minimalism of previous judgments can be of great assistance. A final comment to note on the minimalism deployed in the earliest decades of the Strasbourg system is that it was as successful as it was unsurprising. It would have been hugely surprising, and negatively perceived, had the Commission given detailed judgments on the law, articulating eventualities that may arise in hypothetical cases not under consideration in the immediate dispute. Indeed, while the Court was initially tasked to provide the authoritative interpretation of the Convention, tellingly, the Commission was not.94 Therefore, along with being an interpretive move for the contentious Article 1 cases, the minimalist behaviour in these early decades was somewhat characteristic of the Commission’s behaviour as a whole. However, some cases gave rise to such challenges that minimalist interpretive moves alone were insufficient. IV. ENHANCED JUSTIFICATION

In circumstances where the interpreters wanted to provide a distinctly more progressive understanding of extraterritorial obligations, minimalist approaches were suspended. While minimalism is well suited for low-key developments, it is not always appropriate in situations where significant advancements are being made. On these occasions, the community was bound to demonstrate to the Contracting Parties that the new progressive interpretation was a legitimate one and not merely an act of unconstrained judicial activism95 or, as White puts it, ‘subjective ad-hockery’.96 They did so by layering their judgments with enhanced justifications for their decision.97 93 Janneke Gerards, ‘The Scope of ECHR Rights and Institutional Concerns’ in Eva Brems and Janneke Gerards (eds), Shaping Rights in the ECHR (Cambridge University Press, 2013) 100. 94 This was to be expected as, unlike the Court, the Commission had not been expressly mandated to provide interpretations of the Convention. Compare art 28 (Commission) with art 45 (Court) of the European Convention on Human Rights (original text). 95 Shai Dothan notes that: ‘In order to gain some protection from political constraints, a court must appear constrained by the law’. See Shai Dothan, ‘How International Courts Enhance Their Legitimacy’ (2013) 14 Theoretical Inquiries in Law 455, 469. 96 White (n 91) 71. 97 As Dzehtsiarou notes: ‘In order to ensure that the judgments are not arbitrary, the Court has to provide clear reasons and explain why a particular State action does or does not violate the Convention.’ See Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge University Press, 2015) 164.

Enhanced Justification 77 This practice particularly came to the fore during the 1990s, when the community began to develop a spatial basis of jurisdiction. Until this point, the Strasbourg Organs had had steadfastly focused on the relationship between an individual and the state when dealing with Article 1. Questions had focused on whether control or authority had been exercised over the person and whether the individual had been affected by the state’s actions. This exclusively personal approach ended in the mid-1990s with the adoption of a spatial conception of extraterritorial jurisdiction.98 Before considering these interpretive moves, it is first necessary to understand how this development unfolded. A. Spatial Jurisdiction The seeds of spatial jurisdiction under the ECHR were sown in two further cases concerning the Turkish invasion and occupation of northern Cyprus.99 In Loizidou v Turkey, the Court introduced into Article 1 the rule that a state could exercise jurisdiction where it held effective control of an area outside of its domestic territory. Less than five years later, this understanding was confirmed by the Grand Chamber of the ECtHR in a further inter-state case brought by Cyprus against Turkey, which was resolved in 2001.100 The judgment in Loizidou has been referred to as ‘notorious’,101 ‘the first truly landmark case on the extraterritorial application of the ECHR’102 and as the ‘first major decision in this field’.103 While these comments may be correct in lauding the significance of the Loizidou contribution to the understanding of Article 1, they are also indicative of a pervasively casual disregard for the three decades of jurisprudence on personal connections that preceded this decision. The applicant, Titiana Loizidou, had complained of a deprivation of her land

98 Ralph Wilde, ‘Legal “Black Hole”? Extraterritorial State Action and International Treaty Law on Civil and Political Rights’ (2004–05) 26 Michigan Journal of International Law 739, 741–42. 99 While some commentators have identified the earlier inter-state applications as the foundation for spatial jurisdiction, they should instead be understood as outliers to the personal approach. See Sarah Miller, ‘Revisiting extraterritorial jurisdiction: a territorial justification for extraterritorial jurisdiction under the European Convention’ (2009) 20(4) European Journal of International Law 1223, 1237. Conversely, the Court of Appeal considered these early cases to represent the personal approach: ‘The commission rejected these submissions in a passage which represents the first clear statement of SAA responsibility that is to be found in Strasbourg jurisprudence.’ See R (Al-Skeini) (CA) (n 75) [56] (Brooke LJ). 100 Cyprus v Turkey (2002) 35 EHRR 30. 101 Mantouvalou (n 46) 150. 102 Marko Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’ (2008) 8(3) Human Rights Law Review 411, 422. 103 Nuala Mole, ‘Issa v Turkey: Delineating the Extra Territorial Effect of the European Convention on Human Rights’ (2005) 1 European Human Rights Law Review 86, 87. See also Erik Roxstrom, Mark Gibney and Terje Einarsen, ‘The NATO Bombing Case (Bankovic et al. v. Belgium et al.) and the Limits of Western Human Rights Protection’ (2005) 23 Boston University International Law Journal 55, 84.

78 Incremental Normalisation when she was forcibly displaced from her home following the Turkish invasion of the north of the Island.104 Her application was brought against Turkey as she blamed Turkish forces for preventing her from returning to her property.105 The Court was therefore posed with the question of whether Turkey exercised jurisdiction over northern Cyprus at the relevant time. Turkey responded with a series of objections, including that any complaints should not be addressed to Turkey, but to the government of the ‘Turkish Republic of Northern Cyprus’ (TRNC).106 From the outset, the Court took a step away from its previous personal approach: Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.107

This passage has been used as the touchstone for all future understandings of spatial jurisdiction. There are two key contributions made to the meaning of jurisdiction within it: the exercise of effective control over territory and the identity of the authority wielding control. By using this passage as a basis, wider discussions from Loizidou and Cyprus v Turkey (2001) can be used to obtain a degree of clarity with respect to the meaning of spatial jurisdiction in Article 1. The first of these is the enacting component that gives rise to the finding of jurisdiction: the exercise of ‘effective control’ over an area. Importantly, the Court made it clear that this was a question of fact, not of law.108 In Loizidou, it was confident that the ‘large number of troops engaged in active duties in northern Cyprus’ (approximately 30,000) were a sufficient indicator to establish the exercise of effective control.109 Thus, the absence of declarations or statements concerning the liability, or control of the territory, were irrelevant once it had been established that Turkey actually held factual control over the area. Equally irrelevant was the legality of the invasion, as the Court’s language indicated that it was immaterial whether the military action had been ‘lawful or unlawful’.110 It is also clear that occupation was a decisive factor. The Court in the initial Loizidou application stated that ‘the applicant’s loss of control of her property

104 She had already been party to an earlier admissibility hearing before the Commission in Chrysostomos, Papachrysostomos and Loizidou v Turkey App No 15299/89, 15300/89 and 15318/89 (EComHR, 4 March 1991). 105 While Turkey had ratified the Convention on 18 May 1954, it was not until 28 January 1987 that it recognised the Commission’s competence to receive individual applications. Even then, it sought to limit those petitions to Turkish domestic territory. This argument is discussed in ch 5, pp 132–134. 106 Established in 1983, this administration is generally unrecognised by other states. 107 Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99 [62]. 108 ibid. 109 Loizidou v Turkey (Merits) (1997) 23 EHRR 513 [16]. 110 Loizidou (Preliminary Objections) (n 107) [62].

Enhanced Justification 79 stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment of the “TRNC”’.111 In terms of triggering the exercise of jurisdiction, much like the earlier Cyprus v Turkey applications, the enacting characteristic appears to have been when someone was ‘affected’. The Court notes that: ‘Those affected by such policies or actions therefore come within the “jurisdiction” of Turkey for the purposes of Article 1 of the Convention.’112 This language brings the spatial approach into line with the personal approach as it presupposes that jurisdiction arises when an individual is impacted by the actions or omissions of the relevant state. A point of confusion arose in the merits judgment of Loizidou, where the Court introduced the terminology of ‘effective overall control’ of the territory.113 Clearly, ‘effective’ and ‘overall’ are two different words with different meanings. Effective is defined as ‘actual; existing in fact rather than officially or theoretically’.114 It does not denote the amount of control, but merely that it is in existence and is not merely illusory. ‘Overall’ is defined as ‘total, inclusive of all’;115 it suggests complete control or at least a level near that. This is certainly an important distinction as it sets the minimum threshold for the existence of jurisdiction.116 It is also a point that has given rise to considerable contention in other areas of international law, yet that discussion relates to the control exercised over people.117 In this instance, it does not appear that the distinction made a material difference to the events at hand as it related to the control exercised over territory. The second contribution to the meaning of jurisdiction concerns who wields the control. The Court noted that liability would be incurred whether that control is exercised by Turkey directly or through a subordinate local administration. This statement was tailored to address the argument made by Turkey that any violation was carried out by local authorities and not the Turkish state.118 When this contention was raised in Preliminary Objections, the Court rejected it, noting that effective control of the area brought with it the obligation to secure the rights regardless who administered the territory.119 The Court was still careful to distinguish the existence of jurisdiction, with a finding that a

111 ibid [63]. 112 Loizidou (Merits) (n 109) [56]. 113 ibid. 114 Julia Elliott, Anne Knight and Chris Cowley (eds), The Oxford Compact Dictionary and Thesaurus (Oxford University Press, 1997) 469. 115 ibid 1083. 116 The passage including ‘overall’ was reiterated in the later Cyprus v Turkey case, but did not receive any individual consideration; Cyprus v Turkey (n 100) [77]. 117 eg, Antonio Cassese, ‘The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 European Journal of International Law 649. 118 Loizidou (Preliminary Objections) (n 107) [56]; Loizidou (Merits) (n 109) [54]. 119 Loizidou (Preliminary Objections) (n 107) [62].

80 Incremental Normalisation state is responsible and so this was left until the Merits phase. There, the Court elaborated further to note: It is obvious from the large number of troops engaged in active duties in northern Cyprus that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the circumstances of the case, entails her responsibility for the policies and actions of the ‘TRNC’. Those affected by such policies or actions therefore come within the ‘jurisdiction’ of Turkey for the purposes of Article 1 of the Convention. Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus.120

Thus, the Court found that by exercising such extensive spatial jurisdiction over the territory, the Turkish state was liable not only for its actions, but also for the conduct of the local administration. This was a sensible way for the Court to bypass any concerns of attribution and swallow them up in engagement with the exercise of jurisdiction.121 As Wilde notes, ‘if a state is in overall control of a territorial unit, everything within that unit falls within its “jurisdiction” even if at lesser levels powers are exercised by other actors’.122 In Cyprus v Turkey (2001), Cyprus alleged that the situation in northern Cyprus constituted a violation of almost the entire portfolio of rights entailed within the Convention.123 Turkey once again contended that it was the acts and omissions of the TRNC that had engaged the Convention, this time submitting this argument to the newly established Grand Chamber. The Court again rejected this contention, noting that: Having effective overall control over northern Cyprus, its responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey’s ‘jurisdiction’ must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey.124

Consistent with its earlier ruling, this bypassed the question of to whom rights violations could be attributed. Moreover, it made it clear that all rights could be engaged by virtue of the extent of control exercised over the territory.125 120 Loizidou (Merits) (n 109) [56]. 121 As Lawson notes, in practice this meant that the Court avoided having to determine whether Turkish forces exercised control in specific circumstances. See Rick Lawson, ‘Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights’ in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 98. See also Milanovic (n 102) 436–46; Roxstrom et al (n 103) 82. 122 Ralph Wilde, ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’ (2007) 40 Israel Law Review 503, 525. 123 With the exception of art 12. 124 Cyprus v Turkey (n 100) [77]. 125 Roxstrom et al note that through occupying the territory, a state becomes the ‘most efficient protector’ of individual rights; Roxstrom et al (n 103) 86.

Enhanced Justification 81 To draw this together, against the backdrop of 30 years of jurisprudence that had incrementally increased the Convention’s scope of application in a personal manner, the judges in Loizidou introduced a new, more expansive, spatial jurisdiction. Even the earlier Cyprus v Turkey litigation had not gone as far as the ECtHR would in Loizidou and Cyprus v Turkey (2001). In these two cases, the Court took a major step towards broadening the scope of the Convention’s geographical application. No longer was the treaty merely a remedial tool to be used by individuals and small groups directly affected in isolated incidents. The finding that a state could exercise jurisdiction over large swathes of territory brought a considerable rise in the number of potential applicants, and consequentially major policy implications for states and the Court alike. B. Justifying Progression Due to the controversial nature in the expansion of the Convention’s scope, the community sought to justify its progressive interpretation.126 It did so by deploying two interpretive moves, the first of which was demonstrating its use of relevant interpretive rules.127 While in other judgments, the Strasbourg community had given little attention to demonstrating how it arrived at its understandings, in the politically charged northern Cyprus cases, the Commission attempted to demonstrate where the meaning was coming from. In the initial Cyprus v Turkey applications in the 1970s, the Commission had noted that it had interpreted Article 1 through ‘the language, in particular of the French text’, ‘the object of this article’ and ‘the purpose of the Convention as a whole’.128 In Loizidou, the constraints were even more explicit.129 In particular, in accordance with the VCLT,130 the Court placed considerable emphasis on finding jurisdiction through interpretation of the Convention’s ‘object and purpose’.131

126 This judgment had huge implications on both the scope of the Convention and the caseload of the Strasbourg institutions. See Robin White, ‘Tackling Political Disputes through Individual Applications’ (1998) 1 European Human Rights Law Review 61, 70. See also Judge Bernhardt’s Dissenting Opinion, where he noted that the judgment concerned not only Mrs Loizidou, but ‘thousands or hundreds of thousands of Greek Cypriots who have (or had) property in northern Cyprus’; Loizidou (Merits) (n 109) [1] Dissenting Opinion by Judge Bernhardt and Judge Lopes Rocha. 127 Although it should be noted that White is still critical of the Court’s absence of an ‘explanation for its expansive approach’; White (n 91) 63. 128 Cyprus v Turkey (n 48) 586. 129 ibid. 130 Vienna Convention on the Law of Treaties, 1969 (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. 131 Pedersen refers to it as ‘decisive’; Pedersen (n 15) 292. See also Cornelia Janik and Thomas Kleinlein, ‘When Soering Went to Iraq: Problems of Jurisdiction, Extraterritorial Effect and Norm Conflict in Light of the European Court of Human Rights’ Al-Saadoon Case’ (2009) 3 Goettingen Journal of International Law 459, 470; Kerem Altiparmak, ‘Banković: An Obstacle to the Application of the European Convention on Human Rights in Iraq?’ (2004) 9(2) Journal of Conflict & Security Law 213, 226; Mantouvalou (n 46) 150.

82 Incremental Normalisation Recourse to the object and purpose is a powerful tool for interpreters who want to expand the scope in protection of human rights provisions.132 The precise definition of the object and purpose of the ECHR remains somewhat contested,133 so much so in fact that Vanneste suggests that its understanding is evolving alongside the changing text and context of the treaty.134 Greer refers to it as ‘the protection of certain designated individual rights from violation by contracting states’.135 Other iterations speak to the protection of the individual from excesses of state power.136 In Soering, this referred to ‘the protection of individual human rights’.137 In Kjeldsen, it concerned the promotion of ‘the ideals and values of a democratic society’.138 In Golder, the Court read it in line with the Preamble to state that it was ‘to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’.139 In Wemhoff, the Court used the object and purpose as a reason against a restrictive interpretation of the obligations owed by state parties.140 Taking this interpretive approach will most often give rise to a progressive interpretation.141 Moreover, through deployment of the object and purpose, interpreters are able to demonstrate their progressive approach in a legitimate basis rather than an arbitrary exercise of their own discretion. In Loizidou, the Court used it to broaden the application of human rights responsibilities and ensure that a state who invades and occupies another Contracting Party, thereafter establishing a subordinate administration which relies upon it for support, cannot avoid human rights liability for its actions. A second interpretive move was to justify the expansive understanding of jurisdiction through recourse to principle. The interpretive community had been wholly silent on any principled basis for its interpretations until the 2001 Cyprus v Turkey judgment. Having consistently recognised the possibility for the Convention’s extraterritorial application in its previous jurisprudence, in

132 Frederic Vanneste, General International Law before Human Rights Courts (Intersentia, 2009) 213. 133 Letsas appropriately notes that the VCLT is unclear about how to determine the object and purpose of a treaty; George Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for an International Lawyer’ (2010) 21 European Journal of International Law 509, 533. 134 Vanneste (n 132) 263. 135 Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, 2006) 195. 136 Alexander Orakhelashvili, ‘The Position of the Individual in International Law’ (2000–01) California Western International Law Journal 241, 264. 137 Soering v UK (1989) 11 EHRR 439 [87]. 138 Kjeldsen, Busk Madsen, and Pedersen v Denmark (1976) 1 EHRR 711 [53]. 139 Golder v UK (1979) 1 EHRR 524 [34]. 140 Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55 [75]. 141 Lawson describes its deployment in the Loizidou judgment as being ‘fully in line with the object and purpose of the Convention’. See Lawson (n 121) 97.

Consideration of Context 83 this judgment the Court set about explaining how it had reached its decision. Here the Grand Chamber noted: Having regard to the applicant Government’s continuing inability to exercise their Convention obligations in northern Cyprus, any other finding would result in a regrettable vacuum in the system of human-rights protection in the territory in question by removing from individuals there the benefit of the Convention’s fundamental safeguards and their right to call a High Contracting Party to account for violation of their rights in proceedings before the Court.142

Linking this justification to the Convention’s role as an ‘instrument of European Public Order’,143 the Court recognised that if the Cypriot government was prevented from exercising control in the northern portion of the island, there would be a void in human rights protection.144 This vacuum was all the more significant given that the population of that area had already enjoyed a lengthy spell under the protection of the Strasbourg Organs.145 Thus, the expansion of jurisdiction was explained against not only well-accepted interpretive rules, but also principle. V. CONSIDERATION OF CONTEXT

The final interpretive move in the jurisprudence of this community is linked to the former two, and yet it stands out as the most difficult to substantiate. In short, it suggests that the community is predisposed to provide more progressive interpretations where the context of the case, the contemporary situation or the respondent state affords it the opportunity to do so.146 As noted above, the community is not necessarily consciously adapting its approach in light of the context, yet when a particular context arises, it is primed to respond in a way that suits its continuing purposive enterprise. Looking across the early jurisprudence on Article 1, the Commission benefited from addressing relatively uncontroversial disputes in its initial decisions. During this phase, it was able to recognise the Convention’s extraterritorial application by effectively making obiter dicta comments that had little influence on the ultimate outcome

142 Cyprus v Turkey (n 100) [78]. 143 ibid. 144 This was refuted in a dissenting opinion by Judge Pettiti in ibid [O-III30] and in Loizidou (Merits) (n 109) [1] Dissenting Opinion by Judge Gölcüklü [3]. 145 Cyprus had ratified the Convention in 1962. 146 See recognition of this also in: Jonas Christoffersen and Mikael Rask Madsen, ‘Introduction: The European Court of Human Rights between Law and Politics’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford University Press, 2011) 2. Madsen states: ‘History is a key context for understanding the authority of the European Court of Human Rights.’ See Madsen (n 80) 141.

84 Incremental Normalisation of the case.147 As we have seen, establishing that the Convention could apply extraterritorially in these judgments was an important step, as it allowed for this position to be relied upon in the more contentious disputes that were to follow. When the Commission, and latterly the Court, did expand its meaning, it did so in periods of strength. Again, this can be demonstrated with the two major cases of the era: Cyprus v Turkey and Loizidou. The initial Cyprus v Turkey judgment in the mid-1970s was made during a period of considerable development in the Strasbourg Organs.148 The ECtHR in particular was beginning to flex its muscles for the first time as it began developing and adopting new interpretative tools, specifically the doctrine of the living instrument149 and the principle of effectiveness.150 Madsen gives three reasons to explain the Strasbourg Organs’ confidence to expand their authority at this time. He explains how the retreat of the Cold War and the emergence of détente politics had made it easier for states with loose military and diplomatic alliances to complain about one another’s human rights protection; the end of the decolonisation process had made the former colonial European powers, notably the UK and France, less vulnerable and thus more willing to engage in human rights diplomacy; and the increase in European integration made the justification for a common European standard more rational.151 Combined, these geopolitical conditions afforded the Strasbourg Organs a greater degree of flexibility and this empowered them to pursue the development of greater legal protections for the individual. This reasoning also extended into the Loizidou judgments. Despite suffering setbacks throughout the 1980s, by the 1990s the Strasbourg Organs had achieved a high degree of authority and legitimacy. Strengthened by the continuing integration of former Soviet states152 and with a renewed global emphasis on human rights, the Convention bodies were in a position to deliver more expansive judgments.153 Bates notes how during the mid-1990s, the ‘Court’s legitimacy

147 This point was observed in the Al-Skeini litigation at the High Court, where it was commented that ‘for one reason or another the applications were all ruled inadmissible save only in the northern Cyprus cases’; R (Al-Skeini) (HC) (n 72) [253]. 148 Madsen refers to this period as setting ‘a new tone-a dynamic championing of European human rights-that was very different from the self-constrained legal diplomacy of the previous period’; Madsen (n 80) 152. 149 Tyrer v UK (1979–80) 2 EHRR 1. 150 In Golder, the Commission noted that ‘the function of its interpretation is to make the protection of the individual effective’; Golder v UK (1979–80) 1 EHRR 524, 532 [40]. See also Airey v Ireland [1979] 2 EHRR 305 [24]. 151 Madsen (n 80) 151–52. 152 For analysis on the growth of the system, see Paul Mahoney, ‘New Challenges for the European Court of Human Rights Resulting from the Expanding Case Load and Membership’ (2002) 21 Penn State International Law Review 101; Robert Harmsen, ‘The European Convention on Human Rights after Enlargement’ (2001) 5 International Journal of Human Rights 18. 153 See Christian Tomuschat, ‘Quo Vadis Argentoratum? The Success Story of the European Convention on Human Rights – and a Few Dark Stains’ (1992) 13 Human Rights Law Journal 401.

Consideration of Context 85 “stock”, so to speak, was high’.154 For the judges in the Loizidou case, this confidence was further strengthened by the recent adoption of Protocol 11 to the ECHR.155 This amendment to the Convention system saw an overhaul of the adjudicative bodies by establishing a permanent court and abolishing the parttime Commission. More importantly, however, it would ensure an automatic right to the individual petition that had previously remained predicated on the optional acceptance by states. While states’ optional acceptance had become customary by the early 1990s, as Dothan notes, its existence had meant that states held both the carrot and the stick.156 They could accept the bodies’ jurisdiction when favourable decisions were provided and threaten the institutions with withholding agreement when they were displeased. Acceptance of Protocol 11 ensured the legitimacy of the Court in the short term and thus allowed it to issue judgments that were less inhibited by fears over state compliance than they had previously been. Context was also an influential factor in respect of the state that the relevant application had been brought against. Naturally, the Strasbourg Organs can only address cases brought before them and yet there is a body of work that suggests that more demanding judgments are issued against ‘lower reputation’ states. Turkey is an example of one such state.157 While Turkey had been one of the first states to ratify the Convention in 1954, persistent allegations of human rights violations and the internationally unpopular invasion of northern Cyprus had rendered it something of an outsider in the Strasbourg system.158 Dothan argues that the Strasbourg Organs take a different approach when addressing complaints against what he refers to as ‘low’ and ‘high’ reputation states.159 Specifically citing Turkey as an example, he contends that the Court issues more demanding judgments against low reputation states, which are less likely to comply in the first place, than high reputation states, which are more likely to comply, but from which a backlash would be considerably more damaging.160 In the sense of extraterritorial obligations, the judgments in the early Cyprus v Turkey litigation were vastly more demanding than anything that had preceded it and, indeed, anything that would follow for almost two decades. Similarly, Loizidou fundamentally altered the understanding of extraterritorial

154 Ed Bates, The UK and Strasbourg: A Strained Relationship – The Long View’ in Katja Ziegler, Elizabeth Wicks and Loveday Hodson (eds), The UK and European Human Rights: A Strained Relationship? (Hart Publishing, 2015) 48. 155 Protocol 11 opened for signature on 11 May 1994 and all state parties had signed it by the end of that year. 156 Dothan (n 76) 95. 157 See further on Turkey’s human rights reputation: Füsun Türkmen, ‘Participation in Global and Regional Human Rights Regimes’ in Zehra F Kabasakal Arat (ed), Human Rights in Turkey (University of Pennsylvania Press, 2007); Greer (n 135) 94–103. 158 White (n 126) 61–66. 159 Dothan (n 76) 242. 160 ibid 242–57.

86 Incremental Normalisation obligations and dramatically increased the number of potential beneficiaries of a state’s protection. These cases were not necessarily selected for developments in doctrine and yet it is the nature of low reputation states that they are more likely to face allegations of violations and consequently that the Court is more likely to pass judgments against them. Where they did, as in these cases, the Strasbourg Organs were somewhat protected from any reputation damage which non-compliance would bring. VI. CONCLUSION

Two brief comments can be made on the operation of the Strasbourg community in the period between the Convention’s inception and 2001. The first is that the interpretations provided went some way towards clarifying the textual indeterminacy in Article 1. Despite a recurrent pattern of judicial minimalism, the meaning generated between these years put the definition of the Convention’s obligations on a firm path towards at least moderate determinacy. Many questions remained in relation to the precise circumstances for exercising jurisdiction, both in situations where a personal jurisdictional link existed and, to a lesser extent, when a state exercised spatial control over a territory. Yet the channelling of the extraterritorial question into whether an individual was under the state’s control – either in a personal or territorial sense – or whether the state’s action affected them provided a degree of coherence which had hitherto been lacking in the text. It brought the abstract concept of jurisdiction to life and states could therefore begin to read the relevant jurisprudence and draw an understanding from the decisions of what implications might arise in relation to their actions abroad. The second observation relates to the balancing of impulses in the community’s purposive enterprise. During this period, the Strasbourg community was able to address concerns relating to state compliance in an undramatic fashion, through a mixture of minimalism, enhanced justification and opportunism concerning the contextual circumstances of specific cases. In taking these steps, the community was able to prioritise the protection of the individual over concerns for safeguarding state engagement. The result of this prioritisation was that every decision concerning Article 1 jurisdiction took at least a moderately progressive stance. While no violation would ultimately be found in many of these cases, the direction of travel for the word ‘jurisdiction’ was clear. Beginning in the mid-1960s with the initial recognition that there was no reason why the treaty could not apply abroad, the community steadily strengthened this position through its ‘constant jurisprudence’,161 until it ultimately recognised

161 X

v UK (n 40) 74; WM v Denmark (n 41).

Conclusion 87 two clear paths to extraterritorial jurisdiction – one personal and one spatial. Even in cases where the Commission, and latterly the Court, held that jurisdiction had not been exercised, it steadfastly advanced a progressive understanding of what ‘jurisdiction’ meant. This path towards moderate determinacy and the prioritisation of individual protection is characteristic of the period leading up to 2001 and stands in stark contrast to the decade that was immediately to follow.

4 Deconstruction and Reconstruction The European Court of Human Rights 2001–10 I. INTRODUCTION

B

y the turn of the twenty-first century, the meaning of Article 1 jurisdiction had begun to take a coherent shape following decades when the Court and the Commission had approached the issue of extraterritorial obligations in a relatively progressive manner.1 This sequence came to an abrupt end in December 2001 with the case of Banković and Others v Belgium and Others, where the Strasbourg community dramatically changed both the meaning that had emerged in the decades since the Convention’s creation and its direction of travel.2 This landmark judgment effectively deconstructed the previous meaning of jurisdiction and replaced it with one that was vastly more restrictive. In the judgments that immediately followed this turn, the Court (and now only the Court, as the Commission had been abolished) steadily moved away from this new restrictive meaning and attempted to reinstate a semblance of universality in the understanding of the Convention’s extraterritorial application.3 Thus, this period represents both a deconstruction and reconstruction of Article 1 jurisdiction. Having charted the patterns of interpretive practice of the Strasbourg community in Chapter 3, this chapter introduces new patterns that came to the fore during the period and played a particular role in justifying the community’s departure from its previously expansive approach. Initially starting with a discussion of the community’s deconstructive tendencies in the Banković case, the chapter considers the meaning given to ‘jurisdiction’ in Article 1 and the interpretive moves through which this was achieved, before reflecting on how 1 The ease with which the Strasbourg Organs negotiated the extraterritorial question in these early years led Stuart Wallace to describe its attitude as being one of ‘territorial agnosticism’. See Stuart Wallace, The Application of the European Convention on Human Rights to Military Operations (Cambridge University Press, 2019) 51. 2 Banković and Others v Belgium and Others (2007) 44 EHRR SE5. 3 Council of Europe, Protocol 11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby, 11 May 1994, ETS 155.

Judicial Deconstruction: Banković v Belgium and Others 89 this connected with the community’s purposive enterprise. In the next section, I move on to discuss how that case’s legacy was dealt with in relation to both personal and spatial jurisdiction in subsequent judgments. In this regard, I pay specific attention to how a series of components of the Banković decision were almost immediately reversed in the next phase of cases. The chapter concludes by bringing together the patterns in the Strasbourg community’s jurisprudence from this period and highlighting the difficulties that such varying approaches caused the institution as a whole. II. JUDICIAL DECONSTRUCTION: BANKOVIĆ v BELGIUM AND OTHERS

In March 1999, peace negotiations intended to settle disputes regarding the status of Kosovo and the treatment of its ethnic Albanian population failed. NATO forces subsequently launched ‘Operation Allied Force’, a prolonged military campaign against several Serb and Kosovar locations. On 23 April, NATO conducted an aerial attack against the offices of Radio-Television Serbia. The broadcaster was identified as part of Serbia’s military command, control and communications network. The attack killed 16 and seriously injured another 16. This incident gave rise to the Banković application. The applicants included one survivor and the relatives of four of the deceased employees. They alleged violations of the right to life under Article 2, freedom of expression under Article 10 and the lack of an effective remedy as required by Article 13. The respondent states included all Contracting Parties to the ECHR that were concurrently members of NATO.4 They argued that the victims and those injured in the attack were not within their jurisdiction at the time of their deaths and thus that the application should be declared inadmissible ratione personae and ratione loci. The relatively new Grand Chamber of the Court agreed with the respondent states, holding that the applicants had failed to establish the exercise of jurisdiction by any of the states.5 The Banković case has given rise to a significant amount of academic commentary. While there are a number of observers who are generally supportive of the judgment, the majority have been critical of both the result and the Court’s rationale.6 It has been described as both ‘ludicrous’7 and one of ‘the 4 Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the UK. 5 The Grand Chamber was established when Protocol 11 entered into force on 11 November 1998. 6 See generally Paul Arnell, ‘Human Rights Abroad’ (2007) 16(2) Nottingham Law Journal 1; Dominic McGoldrick, ‘Extraterritorial Application of the International Covenant on Civil and Political Rights’ in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 11; Matthew Happold, ‘Bankovic v Belgium and the Territorial Scope of the European Convention on Human Rights’ (2003) 3 Human Rights Law Review 77; Lord Phillips, ‘European Human Rights: A Force for Good or Threat to Democracy?’ (Kings College London, 17 June 2014), www.kcl.ac.uk/law/newsevents/newsrecords/2013-14/assets/LordPhillips-European-Human-Rights--A-Force-for-Good-or-a-Theat-to-Democracy-17-June-2014.pdf. 7 Loukis Loucaides, ‘Determining the Extra-Territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic Case’ [2006] European Human Rights Law Review 391, 395.

90 Deconstruction and Reconstruction most egregious decisions in the history of the European Court of Human Rights’.8 The Court was criticised for fundamentally erring ‘in construing the scope of the Convention in the way that it did’.9 Some have noted that ‘whereas the conclusions are generally defensible, the Court’s analysis itself is often unpersuasive’.10 Whatever the merits of the judgment, it is beyond question that the decision was ‘notorious’11 and, for some, remains the most influential case on the extraterritorial application of the treaty.12 This is principally because, like Cyprus v Turkey and Loizidou before it, Banković is a case where Article 1’s primary interpretive community made a concerted effort to insert new meaning into the word ‘jurisdiction’. A. Defining Jurisdiction The definition of jurisdiction provided by the Grand Chamber in Banković is a paradoxical combination of absolute clarity and certainty, and profuse ambiguity. The Grand Chamber attempted to define Article 1 jurisdiction in both a section identified as ‘The meaning of the words “within their jurisdiction”’13 and in the discussion and application of the law sections, wherein the Court attempts to deal with the arguments advanced by both parties. The judgment therefore provides a series of contributions. The first is that the Court indicated that Article 1 jurisdiction was to be understood as primarily territorial.14 As has been seen, all previous jurisprudence had started with the premise that there was nothing in principle, or in law, to prevent the extraterritorial application of the Convention.15 The Court in Banković flipped this premise and ascribed a hierarchy of meaning to Article 1

8 Erik Roxstrom, Mark Gibney and Terje Einarsen, ‘The NATO Bombing Case (Bankovic et al. v. Belgium et al.) and the Limits of Western Human Rights Protection’ (2005) 23 Boston University International Law Journal 55, 56. 9 Alexander Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’ (2003) 14(3) European Journal of International Law 529, 550. 10 Alexandra Ruth and Mirja Trilsch, ‘International Decisions: Banković v. Belgium (Admissibility). App. No. 52207/99’ (2003) 97 American Journal of International Law 168, 172. 11 Francoise Hampson, ‘The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body’ (2008) 90 International Review of the Red Cross 551, 570. 12 Richard Ekins and Guglielmo Verdirame, ‘Judicial Power and Military Action’ (2016) 132 LQR 206, 208. 13 Banković (n 2) [57]. 14 ibid [59]–[66]. O’Boyle highlighted shortly after the case that it developed ‘a presumption against “jurisdiction” in respect of acts which occur outside the national territory’; Michael O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life after Bankovic”’ in Coomans and Kamminga (n 6) 136. 15 eg, Ilse Hess v UK (1973) 2 DR 72, 73.

Judicial Deconstruction: Banković v Belgium and Others 91 that would commence with the presumption of territoriality.16 The decision did not position a greater burden on applicants to prove the exercise of extraterritorial jurisdiction, yet it indicated a different cultural approach by the Strasbourg Organs towards this issue. While jurisdiction could still be exercised extraterritorially on both a personal and spatial basis, this was to be exceptional, and both of these premises underwent a significant transformation. The personal extension of jurisdiction remained possible, but the way in which it would arise was much more ambiguous. Pursuant to its previous jurisprudence, the Court recognised that jurisdiction could arise where the acts of a state’s authorities produced effects, or where actions were performed, outside its domestic territory.17 However, this was now framed against the backdrop of a description of rules regarding the understanding of jurisdiction in public international law. Most potent of these was an indication that personal jurisdiction under Article 1 could only be exercised with the consent of the forum state wherever that action takes place.18 As Happold suggests, this dubious implication was that ‘illegal exercises of extra-territorial jurisdiction’ would not fall within the Convention’s scope.19 Given that in previous cases the finding of personal jurisdiction had involved situations where the respondent state’s actions were in violation of the forum state’s sovereignty, this reading suggested a dramatic narrowing of how jurisdiction could be exercised.20 Beyond this, the Court also recognised the customary international law principles, including the ‘activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State’.21 Notably, however, the Court drew this connection without relying on the previous jurisprudence involving diplomatic or consular agents, or where individuals were taken onboard vessels flying the flag of the state. This meant that the basis on which some of these cases rested was now even more unclear.22 The spatial understanding was adopted with the Court recognising its application in both Loizidou and Cyprus v Turkey (2001).23 Nonetheless, the Court’s description of this premise threw up a considerable amount of confusion. This pertains to the following passage that immediately succeeded discussion of the spatial cases emerging from northern Cyprus: In sum, the case law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when 16 Wallace (n 1) 50; Cornelia Janik and Thomas Kleinlein, ‘When Soering Went to Iraq: Problems of Jurisdiction, Extraterritorial Effect and Norm Conflict in Light of the European Court of Human Rights’ Al-Saadoon Case’ (2009) 3 Goettingen Journal of International Law 459, 470. 17 Banković (n 2) [69]. 18 ibid. 19 Happold (n 6) 81. 20 eg, Cyprus v Turkey (1975) 31 DR 125; Cyprus v Turkey (1982) 4 EHRR 482. 21 Banković (n 2) [71]. 22 See the discussion in ch 3. 23 Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99; Loizidou v Turkey (Merits) (1997) 23 EHRR 513; Cyprus v Turkey (2002) 35 EHRR 30.

92 Deconstruction and Reconstruction the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.24

This passage could be read multiple different ways. First, it could be understood as a general summary of the permissible extraterritorial exercises of jurisdiction. The clear introductory term ‘In sum’ lends support to this view. On this basis, therefore, extraterritorial jurisdiction arose through effective control of an area and its people because of military occupation and, separately, where a state exercises public powers on the territory of another state that has requested their attendance in some form.25 This reading would therefore be a summary of both spatial and personal jurisdiction, with recognition of this much tighter restriction on personal jurisdiction. If this were the case, the Court could have afforded much greater clarity by pointing to the exercise of public powers in its previous jurisprudence. Alternatively, this articulation could refer to two different ways in which spatial jurisdiction can be exercised.26 The first is through control of territory as a consequence of military occupation, where a state exercised public powers within that area. In this instance, effective control alone would not be enough; a state would have to behave as some form of administrative entity while in occupation. The second is through the exercise of public powers where the forum state had consented, invited or acquiesced to such activities. On this second reading, effective control would not be essential, with the exercise of any public powers being determinative alone. The introduction of this consent, invitation and acquiescence jargon echoed some of the terminology used in the earlier 2001 Cyprus v Turkey judgment, yet ultimately bore little relevance to the case at hand.27 Beyond this unclear addition, it is from arguments relating to the spatial element that some of the more significant contributions were made. The applicants had advanced an inventive contention that the meaning of ‘jurisdiction’ was functional and could be adapted from the spatial ‘effective control’ test ‘so that the extent of the positive obligation under Article 1 of the Convention to secure Convention rights would be proportionate to the level of control in

24 Banković (n 2) [69]. 25 Compare with Barbara Miltner who reads this paragraph differently, suggesting it to be an amalgamation of spatial and personal jurisdiction. Barbara Miltner, ‘Broadening the scope of extraterritorial application of the European Convention on Human Rights’ (2007) 2 European Human Rights Law Review 172, 176. 26 Marko Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23(1) European Journal of International Law 121, 129; Sarah Williams and Sangeeta Shah, ‘Bankovic and Others v Belgium and 16 Other Contracting States’ (2002) 6 European Human Rights Law Review 775, 779. 27 Cyprus v Turkey (n 23) [81].

Judicial Deconstruction: Banković v Belgium and Others 93 fact exercised’.28 In rejecting this approach, the Court made three key elaborations. First, it noted that this would give rise to an unacceptable ‘cause and effect’ notion of jurisdiction which was wholly unacceptable and so unrelated to the text of the Convention that it would render the wording in Article 1 ‘superfluous and devoid of any purpose’.29 Second, it rejected the premise within the applicants’ assertion that obligations within the Convention could be divided and tailored to the situation at hand. The implicit suggestion in this was that the Convention’s obligations would have to apply in their totality if they were to apply at all.30 Finally, it rejected the possibility that the Convention could apply to activities that had an effect in Belgrade. Instead, it asserted that the Convention had been designed to apply ‘in an essentially regional context and notably in the legal space (espace juridique) of the contracting states’.31 In stressing this, the Court noted that the treaty was a regional document and therefore ‘was not designed to be applied throughout the world’.32 Thus, not only was the Convention a European document, but it was only to apply on European territory. The introduction of this strictly regional basis of application meant that the Banković case would fail, as the applicants were in an area of Europe that, at that time, had not yet signed and ratified the Convention.33 B. Interpretive Moves The Banković judgment deconstructed the existing moderately determinate and progressive understanding of jurisdiction. The personal basis which had been prominent in the pre-2001 cases was now premised on public international law foundations and therefore required the consent of a forum state to be exercised. The spatial basis continued, but now had a potentially ambiguous relationship with the exercise of public powers, again requiring the consent, invitation or acquiescence of the forum state. Jurisdiction could not arise in a cause-and-effect manner and could not lead to the division of treaty obligations, and its application outside of the territory of Contracting Parties to the Convention was now questionable, particularly with regard to the spatial basis where this had been noted. This was the new meaning that the interpretive community attributed to Article 1. How and why the Grand Chamber arrived at this considerably more restrictive understanding can be explained with reference to a series of interpretive moves made to meet the interpretive community’s purposive enterprise.

28 Banković

(n 2) [44]. [71]. 30 ibid [73]. 31 ibid [78]. 32 ibid [78]. 33 Serbia ratified the Convention in 2004. 29 ibid

94 Deconstruction and Reconstruction i. Demonstrating Constraint Like its earlier practice in contentious cases where the Court had taken progressive steps to advance the understanding of jurisdiction, the Grand Chamber approached the application in Banković by expressly demonstrating that its interpretation was the product of interpretive constraints.34 The Court did so by referring to the authority of Golder v UK to explain that it was bound to interpret the Convention’s provisions with recourse to the VCLT.35 Yet, in a repeat of how it approached the issue in Loizidou, it applied a highly selective application of these interpretive constraints, this time with a clear preference to follow principles of public international law.36 When introducing the interpretive methods it would use, the Court, on three occasions, stated the importance of ‘any relevant rules of international law applicable in the relations between the parties’.37 Mention was also briefly given to subsequent practice, the travaux préparatoires and the object and purpose of the treaty,38 yet, tellingly, while the first two of these tools were utilised, the Court failed to engage with the object and purpose at all.39 When applying the rules of interpretation to Article 1, the Court’s approach is dominated by the meaning of jurisdiction in public international law.40 This path would lead the court to a considerably more restrictive territorial approach.41 The Grand Chamber stressed at length that jurisdiction in Article 1 must be understood ‘as far as possible in harmony with other principles of international law of which it forms part’ and that the ‘Convention cannot be interpreted and applied in a vacuum’.42 It relied on this public international law understanding in order to establish that the Convention’s application should be considered as ‘primarily territorial’43 and that jurisdiction would only be deemed to arise

34 As we will see in ch 5, the Court was directed towards these interpretive tools in submissions by states. 35 Golder v UK (1979–80) 1 EHRR 524 [29]. 36 Vienna Convention on the Law of Treaties 1969, art 31(3)(c). 37 Banković (n 2) [55]. Wildhaver cites Banković as ‘an example of compliance with the law on the interpretation of treaties’; Luzius Wildhaber, The European Convention on Human Rights and International Law’ (2007) ICLQ 56(2) 217, 223. This would be followed in some later cases; see Ben El Mahi v Denmark App No 5853/06 (ECtHR,11 December 2006) 8; Al-Adsani v UK (2001) 34 EHRR 273 [55]. 38 Banković (n 2) [54], [56]. 39 Kerem Altiparmak, ‘Banković: An Obstacle to the Application of the European Convention on Human Rights in Iraq?’ (2004) 9(2) Journal of Conflict & Security Law 213, 226; Michal Gondek, ‘Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?’ (2005) Netherlands International Law Review 349, 361. 40 Orakhelashvili cites Banković as evidence that the ECtHR ‘feels free to pick and choose between different methods of interpretation’; Orakhelashvili (n 9) 567. 41 Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press, 2011) 19–54. 42 Banković (n 2) [55]. 43 ibid [57].

Judicial Deconstruction: Banković v Belgium and Others 95 extraterritorially in exceptional circumstances which were ‘subordinate to that State’s and other states’ territorial competence’.44 Beyond a public international law reading, the Court continued to select interpretative methods from the VCLT to substantiate its understanding that jurisdiction was to be understood as primarily territorial. For instance, it relied on an absence of state practice, in that no state had lodged an Article 15 derogation in respect of extraterritorial actions.45 This, it suggested, meant that states did not understand the Convention to be extraterritorially applicable.46 This was done without consideration of any other possible reason as to why a state might choose not to derogate.47 Reliance was further placed on the indecisive preparatory materials of the Convention. As was demonstrated in Chapter 1, the travaux préparatoires fail to clearly illuminate the issue any more than to suggest that it was initially presumed that the Convention was to be applied territorially and then that this provision was changed for the benefit of nationals of non-Member States who were residing within Contracting Parties. Nonetheless, the Court in Banković described this as a ‘clear confirmation of this essentially territorial notion of jurisdiction’48 and a ‘clear indication of the intended meaning of Art. 1 of the Convention which cannot be ignored’.49 Here the Court quite simply accorded far too much authority to an indecisive text.50 Moreover, it did so when it should have remained conscious that the Convention should be interpreted in light of present-day conditions, not solely those that influenced the drafters.51 Instead, with one eye on future cases, the Grand Chamber attempted to prohibit the use of the doctrine of the living instrument in the interpretation of Article 1.52 With Article 1 being a procedural provision, there may have been questions over whether the living instrument could apply to its interpretation, yet the Court in Loizidou had relatively recently declared that both the (now compulsory) right to individual petition under Article 25 and use of declarations under Article 46 of the Convention could be interpreted in such a manner.53 Firmly in

44 ibid [58]. 45 ibid [60]. 46 ibid. 47 Orakhelashvili asserts that ‘[t]he reasons for not derogating are many; no single one may be categorically inferred’; Orakhelashvili (n 9) 542. See also Karen Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Brill/Martinus Nijhoff, 2013) 133; Wallace (n 1) 198; Loucaides (n 7) 396. 48 Banković (n 2) [61]. 49 ibid [63]. 50 Loucaides (n 7) 397. 51 Orakhelashvili (n 9) 547. 52 Banković (n 2) [62]. 53 Loizidou (Preliminary Objections) (n 23) 133. Clare Ovey refers to art 1 as a threshold criterion in the same manner as art 35, which has the six-month time limit; Clare Ovey, ‘Application of the ECHR during International Armed Conflicts’ in Katja Ziegler, Elizabeth Wicks and Loveday Hodson (eds), The UK and European Human Rights: A Strained Relationship? (Hart Publishing, 2015) 226.

96 Deconstruction and Reconstruction line with the progressive approach in that case, the Court stated that given that those articles governed the Convention’s enforcement machinery, they could not solely be interpreted in accordance with their drafters’ intentions.54 The Court in Banković sought to distinguish Article 1 from these enforcement mechanisms on the basis that it instead concerned ‘the scope and reach of the entire Convention system of human rights protection as opposed to the question, under discussion in the Loizidou case, of the competence of the Convention organs to examine a case’.55 This is quite a weak distinction as Article 1 functions as a procedural threshold that, in effect, refers to the competence of the Convention organs to examine applications. Moreover, the assertion that the living instrument applies to some procedural provisions, but not others, suggests more than a little selectivity.56 ii. Precedential Deconstruction One of the major criticisms of the Banković decision is the manner in which the Grand Chamber treated the existing jurisprudence on Article 1, with the judges avoiding almost any recourse to its previous understanding.57 Both Loucaides and Wilde are highly critical of the Court for its failure to consider previous jurisprudence.58 Even former Deputy Registrar at the Court Michael O’Boyle, who appears generally supportive of the decision, notes that ‘there is a hint that it has turned a convenient “blind eye” to established precedent’.59 Of the cases considered in Chapter 3, only Loizidou and Drozd and Janousek are mentioned, and the latter is done so tangentially, with the Court providing no opinion on its continuing permissibility. Of course, this should be weighed in light of the lack of stare decisis within the Convention system.60 Yet despite the lack of judicial precedent, the Court has regularly held that as the principle of legal certainty is inherent in the Convention system, it should not depart from previous rulings without good reason.61 54 Loizidou (Preliminary Objections) (n 23) [71]. 55 Banković (n 2) [63]. 56 See also Mantouvalou, who states: ‘The argument that the evolutive interpretation the ECtHR follows does not apply to article 1, which establishes the scope of the ECHR, does not seem justified, nor is it based on the Court’s case law that considers the issue.’ See Virginia Mantouvalou, ‘Extending Judicial Control in International Law: Human Rights Treaties and Extraterritoriality’ (2005) 9(2) International Journal of Human Rights 147, 158. 57 Marko Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’ (2008) 8(3) Human Rights Law Review 411, 423. 58 Loucaides (n 7) 401; Ralph Wilde, ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’ (2007) 40 Israel Law Review 503, 513–15. Gondek suggests that against the backdrop of carefully established case law, the Banković decision appears to be taken on an ad hoc basis; Gondek (n 39) 356. 59 O’Boyle (n 14) 133. 60 Dinah Shelton, ‘The Boundaries of Human Rights Jurisdiction in Europe’ (2003) 13 Duke Journal of Comparative & International Law 95, 127. 61 It has been noted that a person ‘must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may

Judicial Deconstruction: Banković v Belgium and Others 97 The Grand Chamber’s practice towards previous jurisprudence in Banković was either to ignore earlier grounds or to pigeonhole them into jurisdictional extensions that were more palatable to the restrictive understanding it sought to provide. Ken Kress notes how this technique ‘permits an entirely novel statement of the rule or rationale of a line of precedents on the condition that the new rule justifies the outcomes in all of the precedent cases’.62 Thus, the Court in Banković selectively applied the existing jurisprudence and legal doctrine in a fashion that supported its judgment. This practice is at play in relation to the Court’s introduction of the primacy of territoriality and the activities of state agents who draw individuals within their jurisdiction. In relation to the primacy of territoriality advanced by the Court, the Grand Chamber relied upon a passage in the Soering v UK case that identified Article 1 as setting ‘a limit, notably territorial, on the reach of the Convention’.63 This case involved the proposed transfer of a murder suspect from the UK to the US, where he faced the prospect of the death penalty. Transfer would have resulted in a prolonged and indeterminate period awaiting execution known as the ‘death row phenomenon’ that the ECtHR held would be in breach of the prohibition against torture, inhuman and degrading treatment.64 In being detained on UK territory, the applicant was naturally within British jurisdiction and, as such, there is little which can be learned about the understanding of extraterritorial jurisdiction from this type of case.65 Moreover, this statement was made in a judgment of July 1989 and it was not used to restrict any of the earlier jurisprudence concerning Article 1 until the Banković case 12 years later. Conversely, in Loizidou, the case had been used to demonstrate the expansive nature of the Convention’s application.66 The Court’s approach to the role of state agents in extending jurisdiction is similarly re-developed. Here the Court noted ‘that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad’.67 So far so good then

entail’ (Sunday Times v UK 1979) 2 EHRR 245 [49]) and also that ‘it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases’ (Beard v UK (1998) 25 EHRR CD28 [81]). Luzius Wildhaber, former President of the Court, has noted the same: ‘Our Court has of course followed precedent, except where cogent reasons impelled it to adjust the interpretation of the Convention to changes in societal values or in present-day conditions.’ See Luzius Wildhaber, ‘The European Court of Human Rights: The Past, the Present, the Future’ (2006–07) 22 American University International law Review 521, 524. 62 Ken Kress, ‘Legal Indeterminacy’ (1989) 77 California Law Review 283, 299. 63 Soering v UK (1989) 11 EHRR 439 [86]. 64 ibid. 65 Analysis of this has also been deemed to be fruitless by judicial bodies that consider the understanding of art 1 jurisdiction. See, for instance: ‘The Soering principle … is, in our judgment, not a true exception to the territorial principle’; Rix LJ in R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (the Redress Trust Intervening) [2005] 2 WLR 1401 (HC) [246]. 66 Loizidou (Preliminary Objections) (n 23) [72]. 67 Banković (n 2) [71].

98 Deconstruction and Reconstruction in the sense that the Banković judgment accounts for one of the actors in the personal ground of jurisdiction presented in earlier jurisprudence. Yet the Grand Chamber stops here. Earlier decisions had gone much further and accounted for potentially the most important profession in the context of human rights violations: the military agent. Note the distinction between this Banković statement above and the terminology in the earliest Cyprus v Turkey judgments, where the personal approach was listed as ‘including diplomatic or consular agents and armed forces’ (emphasis added).68 For the Court in Banković, this extension clearly stopped at diplomatic and consular agents. C. Banković and the Purposive Enterprise The Banković decision devastated the existing understanding of jurisdiction in Article 1, disrupting the previously progressive approach and entrenching a more restrictive authority in the Court’s jurisprudence. Yet, despite moving in the opposite direction to all of the community’s earlier interpretations, the decision entirely adheres to the community’s purposive enterprise. Until Banković, the Strasbourg Organs had been able to negotiate the challenge of retaining state commitment while protecting individual rights through a series of interpretive moves that incrementally embedded the Convention’s extraterritorial application. However, the weight of context in the Banković judgment made a similarly human rights-friendly decision strategically unwise. Instead of giving a judgment that advanced the protection of the individual through the recognition of extraterritorial obligations, the judges gave one that sought to advance the protection of human rights by prioritising ongoing state compliance with the system.69 This aspect of their purposive enterprise compelled them to do so in the light of contemporaneous global circumstances. The decision was handed down on 12 December 2001, just over three months after the 9/11 terrorist attacks.70 The War on Terror began shortly thereafter. George W Bush delivered the infamous statement that ‘Every nation, in every

68 Cyprus v Turkey (1982) 4 EHRR 482, 586. 69 Roxstrom et al suggest that ‘Banković is a clear example of how Western interests are served’; Roxstrom et al (n 8) 133. Orakhelashvili suggests that the real reason was ‘the Court’s reluctance to deal with a situation related to an armed conflict, or to assess questions related to the use of force, such as justifications and proportionality’; Orakhelashvili (n 9) 538. Rick Lawson, who represented the applicants in Banković, argued that ‘it would seem that Banković was an immediate reaction to 9/11’; Rick Lawson, ‘Really out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict under the ECHR’ in Antoine Buyse (ed), Margins of Conflict: The ECHR and Transitions to and from Armed Conflict (Intersentia, 2011) 75. 70 Altiparmak notes that the atmosphere post 9/11 played an important role in the Banković decision; Altiparmak (n 39) 226. See also Beth van Schaak, ‘The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change’ (2014) 90 International Law Studies 20, 43.

Judicial Deconstruction: Banković v Belgium and Others 99 region, now has a decision to make. Either you are with us, or you are with the terrorists’ at a speech to the US Congress on 20 September.71 By 7 O ctober, European involvement in the conflict had begun, with the US and the UK launching ‘Operation Enduring Freedom’ in Afghanistan. Initial strikes had already involved aerial bombardments from UK naval vessels.72 By the end of November, US and UK forces had launched a large-scale ground invasion and controlled most of northern Afghanistan. In total, 34 European states appear in a US State Department report concerning pledges of military and intelligence support published in early October.73 Of these states, only Russia, Sweden and Finland ruled themselves out of military support.74 Belgium, France, Germany and Italy all pledged to deploy troops if requested, while the UK had ‘placed its entire military capability at US disposal’.75 NATO had formally agreed to enact Article V obligating its members to consider coming to the aid of the US, although not guaranteeing assistance.76 It was therefore likely that a number of Contracting Parties would be engaged in large-scale military operations in Asia for an unknown amount of time. Against the backdrop of this global action, the Court was presented with a case uncannily similar to that which could potentially arise out of actions in Afghanistan (and elsewhere). Oral representations were heard in Banković on 24 October 2001. Deliberations took place on 24 October and 12 December, after the invasion had commenced. The Court was presented with an opportunity to restrict the application of the Convention and it seized its chance. Doing so did three things that could potentially safeguard state compliance with the Strasbourg organs. First, it demonstrated to Contracting Parties that the Strasbourg judges were receptive to their concerns about how to deal with terrorism in order to defend democracy and the rule of law.77 Second, it moved to safeguard the institutions by blocking them from a potential deluge of cases arising out of overseas conflict situations. This was even more necessary given the contemporaneous backlog that the court faced.78 Third, it avoided dragging the Court into discussions on the interface between human rights

71 George W Bush, ‘Address to a Joint Session of Congress and the American People, 20 September 2001), http://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html. 72 Tony Blair pledged Britain’s commitment to the campaign and stressed that it would be fought on three fronts: military, diplomatic and humanitarian. See ‘2001: US Launches Air Strikes against Taleban’ (BBC, 7 October 2001), http://news.bbc.co.uk/onthisday/hi/dates/stories/october/7/ newsid_2519000/2519353.stm. 73 David J Gerleman, Jennifer E Stevens and Steven A Hildreth, ‘CRS Report for Congress’ (2001), https://apps.dtic.mil/dtic/tr/fulltext/u2/a477221.pdf. 74 ibid 3–8. 75 ibid 9. 76 ibid 6. 77 Rick Lawson, ‘Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights’ in Coomans and Kamminga (n 6) 116. 78 G Cohen-Jonathan, ‘La territorialisation de la jurisdiction de la Cour européenne de droits de l’homme’ (2002) 52 Revue Trimestrielle des Droits de l’Homme 1082, 1082.

100 Deconstruction and Reconstruction and international humanitarian law. While it was inevitable that such questions would arise and that the Court would be required to take a position on them, this decision provided at least a temporary postponement to deal with the issue in a later case and a less contentious context.79 Happold criticises the judges for going beyond the submissions of the parties in the judgment and, in particular, their new articulation for Article 1 jurisdiction. Yet this is precisely what they had to do if their judgment was to stifle further litigation.80 The Court was very much tasked with taking an all-or-nothing approach.81 A finding of no jurisdiction that did not deal with the previous expansive understanding of Article 1 would not have met the Strasbourg purposive enterprise. The Court had to be definitive. The particulars of the judgment in relation to the contemporary practices in Afghanistan demonstrate this further. The Court made a strong presumption that the spatial ground could not be used outside Europe at a time when British troops were on the ground in northern Afghanistan. It disregarded any notion of ‘cause and effect’ jurisdiction in relation to aerial bombardment while Kabul and Kandahar were being targeted in the same fashion by a Contracting Party to the treaty. It restricted any personal extension of Article 1 jurisdiction to those understood in public international law while UK forces rounded up suspected Taliban members in a state that had not acquiesced to its presence. Finally, it attempted to prevent any future extension of the treaty’s application by holding that Article 1 could not be interpreted through the doctrine of the living instrument. The decision was unanimous between the 17 judges. As admissibility decisions do not allow for concurring or dissenting opinions, there is no way to know whether the interpretation of Article 1 was agreed by them all or whether some agreed with the judgment but not its logic.82 Judges Wildhaber, Palm and Baka had previously sat in the Loizidou case and thus had established the effective control of an area principle by interpreting the Convention directly through its object and purpose, an interpretation method entirely omitted from the Banković judgment.83 As will be seen, Judges Costa, Thomassen and Baka would go on to challenge many of the contributions of the Banković case in the later Issa judgment.84 That decision, in particular, is entirely at variance with the Banković legal space position.85 Finally, Judges Turmen, Birsan and Hedigan would go on to give a largely contradictory judgment in the further p rogressive

79 Orakhelashvili (n 9) 538. 80 Happold (n 6) 90. 81 Lawson (n 69) 62. 82 Banković was a straightforward admissibility decision. Rule 74(2) allows for a separate opinion from a Chamber of Grand Chamber judgment. Rule 88(2) allows for the same for an advisory opinion. 83 Loizidou (Merits) (n 23). 84 Issa and Others v Turkey (2004) 41 EHRR 27. 85 Olivier De Schutter, ‘Globalization and Jurisdiction: Lessons from the European Convention on Human Rights’ (2006) 6 Baltic Journal of International Law 185, 208.

Judicial Reconstruction 101 case of Isaak.86 However, in a sense, this is beside the point. The variance of these judicial approaches in other cases does not suggest disagreement from these judges in Banković; instead, it suggests that their prioritisation of the varying ends of their purposive enterprise changed in relation to the context of the cases they were asked to address. The above judges could therefore have been the fiercest advocates for a restrictive approach in Banković, while later being the staunchest supporters for a return to a more progressive position. Both possibilities would have adhered to the community’s enterprise. The Banković decision stands out as being an aberration from other Article 1 jurisprudence; it is the outlier. Yet, by looking at the context within which the decision was made, it evidently adheres to the organising principle of the interpretive community and so, while not a predictable finding, it is consistent with the community’s general approach. However, in the aftermath of the Banković case, we began to see the community’s commitment to its purposive enterprise creaking under the pressure of competing lines of precedent, challenging contemporary circumstances and a plethora of new cases involving Article 1 jurisdiction. III. JUDICIAL RECONSTRUCTION

Having deconstructed the previous meaning of jurisdiction in the Banković case, the interpretive community almost immediately set about returning to the progressive approach that had existed in Article 1 jurisdiction prior to 2001.87 However, in order to do so, it had to address the Banković judgment without suggesting to its stakeholders that the meaning of jurisdiction would change in every case. It did so through a series of judgments that directly engaged with the components of the meaning establishing by the Grand Chamber and a return to the minimalism that had served the Commission so well. A. Legal Space The Banković judgment had stated that the Convention operated in an ‘essentially regional context and notably in the legal space (espace juridique) of the contracting states’.88 This suggestion – that the reach of the Convention’s obligations were restricted to the territory of Contracting Parties – was almost immediately challenged in two cases concerning Turkey where the Court indicated the possibility of the Convention’s application outside of Europe on

86 Isaak

and Others v Turkey App No 44587/98 (ECtHR, 28 September 2006). takes a similar approach to discussing this. See Lawson (n 69). 88 Banković (n 2) [78]. 87 Lawson

102 Deconstruction and Reconstruction both a personal and a spatial basis.89 In the first case of Öcalan, the applicant was the leader of the Worker’s Party of Kurdistan (PKK). He was viewed as a terrorist by the Turkish authorities and they had pursued his arrest for a number of years. He was tracked to Kenya, where, with the assistance of local officials, he was arrested. The arrest took place at Nairobi airport by Turkish agents who subsequently transported him back to Turkey. Consistent with earlier jurisprudence,90 the Court held that ‘directly after he had been handed over by the Kenyan officials to the Turkish officials the applicant was under effective Turkish authority and was therefore brought within the “jurisdiction” of that State for the purposes of Art.1 of the Convention’.91 Some see Öcalan as an important case, in that it follows the Banković discussion of public international law on the basis that Kenya appeared to have consented to the applicant’s arrest.92 Miller disagrees, asserting that Öcalan not only ignores the Banković ruling, but goes further and may be even considered progressive as it ‘appears potentially to broaden the scope of Article 1 to encompass almost any instance where a state exercises authority or control over an individual outside its own territory in a way which involves Convention rights’.93 While these debates have some merit, the Öcalan decision ultimately added very little to the general debate other than to reconfirm the line of jurisprudence concerning forced returns that was so consistent in the pre-Banković phase and to demonstrate that the legal space restriction did not apply to personal jurisdiction. The second decision in this area was the Chamber hearing in the case of Issa and Others v Turkey.94 The case concerned an allegation that while deployed on security operations in northern Iraq, Turkish soldiers had taken captive a group of shepherds, tortured and murdered them. Family members would find their mutilated bodies days later. Although the Chamber would go on to find that there was not enough evidence to provide a jurisdictional link between the applicants and the respondent state, it made several comments that directly confronted

89 Miltner (n 25) 176. 90 See the discussion on forced returns in ch 3, pp 69–74. 91 Öcalan v Turkey (2003) 37 EHRR 10 [93]. 92 Compare Morten Peschardt Pedersen, ‘Territorial Jurisdiction in Article 1 of the European Convention on Human Rights’ (2004) 73 Nordic Journal of International Law 279, 298–99 with Gondek (n 39) 374. 93 Sarah Miller, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’ (2009) 20(4) European Journal of International Law 1223, 1228. 94 The Issa application had been mentioned in Banković, but was not considered in any detail as the case had been declared admissible without any extensive discussion of jurisdiction. Mole criticised the Court for allowing Turkey to essentially reopen the jurisdiction discussion on the merits when it should have been objected to or conclusively dealt with at the admissibility stage. See Nuala Mole, ‘Issa v Turkey: Delineating the Extra-Territorial Effect of the European Convention on Human Rights’ (2005) 1 European Human Rights Law Review 86, 89.

Judicial Reconstruction 103 the spatial understanding of jurisdiction.95 Noting that in Issa, Turkish troops conducted exercises in the relevant area for four weeks, the Court stated that it ‘does not exclude the possibility that, as a consequence of this military action, the respondent State could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq’.96 This statement made two important contributions. First, it stands in direct contrast to the Banković judgment’s legal space finding and so also calls into question its application to the spatial basis.97 Note that the Court in Issa went as far as to reference the Banković comments on the Convention’s geographical applicability, acknowledging that the area where the violations occurred ‘clearly does not fall within the legal space of the Contracting States’.98 The second contribution this comment makes is to the general spatial test. The spatial exception based on ‘effective control of an area’ had been confirmed in a number of other northern Cyprus cases, but its application had not been elaborated upon.99 The Court in Issa suggested that, based on the facts at hand, Turkey had not even exercised a lower threshold of temporary effective control of the area in question. In discussing why the spatial ground would not apply and why it had applied in earlier northern Cyprus applications, the Court impliedly outlined characteristics of the spatial test. It noted that in earlier applications Turkey had used a much greater number of military personnel to secure and operate in the territory in question.100 Those personnel were stationed there for a much longer period;101 they constantly patrolled the area in question and placed c heckpoints on all main lines of communication.102 These activities distinguished the actions of Turkish troops in northern Iraq from those in northern Cyprus and shed further light on what was required for a finding of the effective control of an area. Similar to Banković, there was the lurking shadow of contemporary events in Issa. The judgment was delivered on 16 November 2004, almost 18 months

95 Miller describes it as being ‘diametrically opposed to the Court’s conclusions in Banković’; Miller (n 93) 1228. 96 Issa (n 84) [74]. 97 Nicholas Bamforth, ‘The Methodology and Extra-Territorial Application of the Human Rights Act 1998’ (2008) 124 LQR 355, 359. 98 Issa (n 84) [74]. This hostility towards the legal space restriction is reiterated in the later case of Pad, in which it was stated that ‘a State may be held accountable for violations of the Convention rights and freedoms of persons who are in the territory of another State which does not necessarily fall within the legal space of the Contracting States’. Mansur Pad App No 60167/00 (ECtHR, 28 June 2007) [53]. 99 See on this Djavit An v Turkey (2005) 40 EHRR 45 [18]–[23]; Xenides-Arestis v Turkey App No 46347/99 (ECtHR, 22 December 2005) [22]; Andreas Manitaras and Others v Turkey App No 54591/00 (ECtHR, 3 June 2008) [25]–[29]. 100 Issa (n 84) [75]. 101 ibid. 102 ibid.

104 Deconstruction and Reconstruction after the invasion of Iraq by British and US forces, and a further five months after Saddam Hussein had been captured.103 One year earlier, in November 2003, Amnesty International had delivered to the UK government a document alleging human rights abuses by British forces.104 In February 2004 the International Committee of the Red Cross (ICRC) had notified the head of command for the Coalition Forces in Iraq, Paul Bremner, of continuing abuses by UK and US troops of Iraq detainees.105 In April 2004, graphic pictures began to emerge of US military agents’ abuse of prisoners at Abu Ghraib.106 The fact that the Issa judgment was handed down at a time when British forces were on active operations in Iraq is a point that was not missed when litigation emerging from that conflict arrived in British courts. In one such case at the High Court, the judges suggested that the ECtHR had broadened the understanding of jurisdiction again ‘because it was conscious that claims arising out of the 2003 invasion of Iraq might in due course need consideration’.107 It was further noted that there was ‘an understandable concern that modern events in Iraq should not be put entirely beyond the scope of the Convention’.108 This concern would suggest that members of the Strasbourg community were wary that their previous approach in Banković had pulled them too far towards the protection of state participation with the Convention, to the detriment of the protection of the individual. It would then suggest that Issa was a belated attempt to rebalance these dynamics within the community’s purposive enterprise.109 B. The Role of Public International Law A separate way in which the Banković decision was challenged related to the treatment of the public international law premise for jurisdiction in the judgment of Ilaşcu and Others v Moldova and Russia. This case concerned events in the separatist Moldovan Republic of Transnistria (MRT). After the break-up of the USSR and the foundation of the Moldovan State, the region of Transnistria,

103 This would go on to form one of the applications in the Iraq conflict cases. See Hussein v Albania and Others (2006) 42 EHRR SE16. 104 Matthew Tempest, ‘Timeline: The Iraq Abuse Crisis’ (The Guardian, 13 May 2004), www. guardian.co.uk/politics/2004/may/13/iraq.iraq1. 105 ibid. 106 ibid. 107 R (Al-Skeini) (HC) (n 65) [205] (Rix J). 108 ibid [265] (Rix J). 109 Williams suggests that the judges wanted to make a statement in relation to claims arising from Iraq and that is why they allowed the jurisdiction question to be considered at the merits stage; Joanne Williams, ‘Al-Skeini: A Flawed Interpretation of Banković’ (2005) 23 Wisconsin Journal of International Law 687, 701. Altiparmak called on the ECtHR to adapt to meet the new challenges posed by aggressive western states in the new world order formed after 11 September 2001; Altiparmak (n 39) 251.

Judicial Reconstruction 105 with some assistance and support of the Russian Federation, attempted to separate from the greater Moldovan nation. In Ilaşcu, the Court was asked whether four individuals who were arrested and ill-treated in this region were within the jurisdiction of Russia or Moldova at the time of the alleged violations. Considering Russia, the Grand Chamber noted that when it had signed the Convention, there remained a significant number of Russian troops and artillery in the region that was a ‘decisive influence’ on local affairs.110 In addition, Russia was found to have provided ‘military, economic, financial and political support’ to the MRT authorities.111 These characteristics gave rise to a finding of jurisdiction through the spatial ground in a similar fashion to how Turkish support for the TRNC had trigged Turkish jurisdiction in earlier cases.112 It appears that the trigger in this case in establishing Russian jurisdiction was that it had ‘effective authority’ or, at the very least, a ‘decisive influence’ over the MRT.113 The issue of contention between the Ilaşcu case and public international principles is that the Grand Chamber did not only find the exercise of Russian jurisdiction over the area. Pursuant to the post-Banković ‘primarily territorial’ application of the Convention, Moldova was also considered to have exercised jurisdiction over the MRT region. This, however, created a jurisdictional dispute, as a concurrent rule in international law is that two states cannot contemporaneously exercise enforcement jurisdiction over the same individual at the same time.114 To do so would lead to a natural conflict in jurisdiction between Moldova and Russia.115 Thus, the priority given to public international law understandings of jurisdiction was displaced. This is not the only point of inconsistency between the Ilaşcu decision and the meaning of jurisdiction generated by the Court in Banković. C. Dividing and Tailoring The Banković judgment had also indicated that the Convention could not be divided and tailored following a functional assessment of the extent to which a state could fulfil its obligations.116 Despite this, the Court in Ilaşcu took into account the reduced control that Moldova exercised over the MRT in its

110 Ilaşcu and Others v Moldova and Russia (2004) 40 EHRR 46 [392]. 111 ibid. 112 Cyprus v Turkey (n 23). 113 Ilaşcu (n 110). 114 De Schutter states that ‘the Court recognizes that “jurisdiction”, rather than being necessarily exclusive may be shared between two or more States parties to the Convention’; De Schutter (n 85) 228. 115 Pedersen suggests that the Court has interpreted art 1 through the Convention’s object and purpose in order to adapt it to the specific situation at hand; Pedersen (n 92) 279, 300. 116 Banković (n 2) [44].

106 Deconstruction and Reconstruction a ssessment of the obligations it owed and concluded that Moldova was absolved from all negative obligations, but retained the: [P]ositive obligation under Art. 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.117

Less than three years after noting that the Convention’s obligations could not be divided and tailored, the Court took this very approach. While it did not do so in an extraterritorial context, merely reducing the obligations owed by the territorial state, it still saw the Court swiftly depart from its suggestion that the Convention had to be applied as a ‘full package’. De Schutter sees this decision as ‘a move towards a concept of ‘jurisdiction’ which has become relative, tailored to the degree of control effectively exercised’.118 This issue of the extent of obligations from Ilaşcu was at the centre of discussion in the subsequent case of Treska v Albania and Italy.119 In this application, the Italian authorities had purchased property in Tirana that had been confiscated without compensation by local authorities in the 1950s. The applicants alleged that they held rights over the area.120 The Court found that no jurisdiction was exercised in relation to the allegation against Italy as the decision had been taken exclusively by Albanian authorities in Albania. Nonetheless, it noted that: Even in the absence of effective control of a territory outside its borders, the State still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to applicants the rights guaranteed by the Convention.121

Larsen has appropriately commented on the expansive nature of this statement.122 In Ilaşcu, Moldova certainly lacked effective control of the region in question, but was still required to fulfil its positive obligations in relation to an area within its territory. The reading in Treska gives rise to positive obligations even when the event does not occur within a state’s territorial borders. Larsen questioned whether this statement was to mean that positive obligations could be owed when a state engages in an act outside its territory where there is no Article 1 jurisdiction.123 If this is the appropriate meaning, then it would

117 Ilaşcu (n 110) [331]. 118 De Schutter (n 85) 227. 119 Treska v Albania and Italy App No 26937/04 (ECtHR, 29 June 2006). 120 ibid. 121 ibid. 122 Kjetil Mujezinović Larsen, ‘“Territorial Non-application” of the European Convention on Human Rights’ (2009) 78 Nordic Journal of International Law 73, 87. 123 ibid.

Judicial Reconstruction 107 negate the need for the jurisdiction clause altogether. Alternatively, what this statement could mean is that positive obligations will arise through the exercise of personal jurisdiction where the state does not have effective control of an area, but where it does have the power to take the relevant actions – again, a functional approach, but a looser one than in Ilaşcu. This lack of clarity provided stands as a further example of the progressive, if minimalist, approach the Strasbourg community had taken in its earlier Article 1 cases. This minimalism would continue to have a role to play in the next area of reconstruction. D. Cause and Effect The Banković decision had directly ruled out the notion that jurisdiction could arise simply by virtue of an individual having suffered an alleged violation, ie, a cause-and-effect understanding. As with other key components to the meaning of jurisdiction generated in the case, this aspect was challenged in subsequent applications and yet here, significant fractures began to emerge in the community’s approach. The first case to consider was the decision in Mansur Pad v Turkey.124 Once again, this application concerned the activities of Turkish agents, this time in northern Iran. The applicants alleged that a group of seven men had been captured near the border with Turkey and taken into Turkish territory, where they were executed. Although accepting responsibility for the deaths, Turkey asserted that its agents had killed the men on Turkish soil after discharging fire from a military helicopter. The Chamber found the exercise of jurisdiction, but took the most minimalist approach available as it did so without finding it necessary to contemplate whether the alleged violations had taken place in Turkey or in northern Iran. Instead, it simply accepted the Turkish government’s acceptance of responsibility for the deaths. This approach greatly limits any contribution that can be derived from this case. While the Court’s silence on the topic of cause-and-effect jurisdiction may indicate its acceptance,125 this is correct only if it found jurisdiction as a result of the helicopter attack taking place in Iran, something which Turkey ultimately denied.126 It may have been that jurisdiction was established because Turkey alleged that the applicants were killed on Turkish territory, thus following the territorial principle.127 Alternatively, jurisdiction may have been exercised over the individuals if it was understood that they were captured in Iran and transported to Turkey before being killed, as was argued by the applicants.128 In Pad, none of these possibilities was selected, with the Court

124 Mansur

Pad (n 98). Costa (n 47) 214. 126 Mansur Pad (n 98) [51]. 127 This was the submission made by the Turkish authorities; ibid. 128 ibid [7]. 125 Da

108 Deconstruction and Reconstruction finding jurisdiction simply based on the Turkish admission.129 Again, a judicially minimalist approach left more questions than answers. Further engagements with the notion of instantaneous jurisdiction emerged in a subsequent case relating to the ‘green line’, the UN Buffer Zone demarcating the TRNC from the southern Republic of Cyprus. In Andreou v Turkey, soldiers from the TRNC had fired shots at the applicant while she stood by barriers on the southern end of the zone. She was injured along with three Greek-Cypriot protestors and two British soldiers from the UN force. In assessing whether Turkey exercised jurisdiction over her at the time of her injury, the Court noted that: [T]he opening of fire on the crowd from such close range, which was the direct and immediate cause of those injuries, was such that the applicant must be regarded as ‘within [the] jurisdiction’ of Turkey within the meaning of Article 1.130

So in Andreou, the Court introduced an entirely new test to the personal ground in finding jurisdiction – that of ‘direct and immediate cause’ of injuries.131 Such a finding is completely at odds with the Banković decision and stands with even the most generous application of the Convention taken in the pre-Banković period. Despite taking this expansive approach, the Court also threw in a final confusion. When distinguishing the findings in this case from Banković, it stated that: ‘Unlike the applicants in the Banković and Others case … she was accordingly within territory covered by the Convention.’132 Thus, for the first time, the Court appeared to apply the legal space restriction to the personal exercise of jurisdiction. This suggests that Turkey exercised jurisdiction because the action had been conducted in European legal space, which presupposes that it would not have been held responsible for the action were it to have taken place on a territory where the Convention had not been secured. In a later decision, the notion of instantaneous jurisdiction was refuted by the Court, in total contradiction of the position from Andreou. In Medvedyev, French commandos had taken control of a ship used for drug smuggling and towed it from near the Cape Verde Islands in the Atlantic Ocean to Brest Harbour in France. The smugglers on board the vessel alleged that their detention had been an arbitrary deprivation of their liberty contrary to Article 5 of the Convention.133 The Grand Chamber found that the French agents had exercised jurisdiction over the individuals on board the vessel, The Winner,

129 ibid [54]. Domestic judges have subsequently struggled to accord this finding any weight. See Al-Saadoon and Others v Secretary of State for Defence [2015] EWHC 715 (Admin) [90] (Leggatt J); R (Al-Saadoon and Another) v Secretary of State for Defence and Another [2016] EWCA Civ 811 [66.1] (Lloyd Jones LJ). 130 Andreou v Turkey App No 45653/99 (ECtHR, 3 June 2008). 131 See also Da Costa (n 47) 209–11. 132 Andreou (n 130). 133 Medvedyev and Others v France (2010) 51 EHRR 39.

Judicial Reconstruction 109 ‘at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France’.134 The Court not only appeared to indicate some form of significance with the duration and sequence of control exercised over the individuals, but it went further to state that jurisdiction: [E]xcluded situations, however, where – as in the Banković case – what was at issue was an instantaneous extraterritorial act, as the provisions of art.1 did not admit of a ‘cause-and-effect’ notion of ‘jurisdiction’.135

Thus, two years after a Chamber of the Court gave the clearest recognition of instantaneous jurisdiction, a Grand Chamber would go on to refute that possibility. To make matters more puzzling, four judges sat on both applications.136 E. Ongoing Moves This intense period saw the understanding of jurisdiction rapidly develop and be applied in a range of circumstances. From the deconstruction of the previous approach and the creation of an entirely new meaning of jurisdiction in Banković, through the reconstruction of a progressive meaning over the course of the next decade, the interpretive community continued to adhere to the (by now consistent) interpretive practices of enhanced justification and deploying minimalist judicial tactics. Given that the Grand Chamber in Banković had utilised the VCLT in order to advance a more restrictive understanding of jurisdiction, the interpretive community could not immediately rely on these interpretive rules in order to demonstrate the constraints on its generation of meaning in the period that followed. To do so would unveil to the Convention’s stakeholders the elasticity of ostensible interpretive constraints. Instead, it appears that the community sought to rationalise its more progressive approach with reference to principle. We see this at play in the two most progressive cases of the era, Issa and Andreou, where the Court drew on statements from the UN Human Rights Committee (HRC) to rationalise its interpretation. Notably, it did so by echoing a statement that the HRC had made in the case of Lopez Burgos v Uruguay.137 There it had stated: In line with this, it would be unconscionable to so interpret the responsibility under article 2 of the [ICCPR] as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.138

134 ibid

[64]. [67]. 136 Judges Bratza, Bonello, Garlicki and Poalelungi. 137 Delia Saldias de Lopez v Uruguay, Communication No 52/1979, UN Doc CCPR/C/OP/1. 138 ibid 88. 135 ibid

110 Deconstruction and Reconstruction In Issa, the ECtHR echoed this: Accountability in such situations stems from the fact that Art. 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of another state, which it could not perpetrate on its own territory.139

This passage is indicative of a universal approach to human rights implementation and the generally more expansive interpretation taken by the interpreters of the ICCPR than the ECHR.140 By the time of the Issa judgment, the Lopez Burgos decision was over 20 years old and yet had never been voiced by the Strasbourg Organs in any of their earlier judgments.141 Its deployment suggests that the Court was eager to justify its more progressive statements with recourse to relevant authority and, by drawing in these external norms, to ensure some protection against accusations that it was being overly activist. I have demonstrated the continuation of a minimalist engagement concerning the precise meaning of jurisdiction in some of the earlier cases during this decade. This practice was particularly at play in two further cases involving the UN Buffer Zone in Cyprus, where there was a return to the pre-Banković approach of substituting the indeterminacy in jurisdiction for a similar word. In early August 1996, the Cyprus Motorcycle Federation, a group of over 100 largely Cypriot motorcyclists, set off on a protest journey from Berlin, through Europe, with their destination being the ‘green line’. The first application in this group of cases, Maria Isaak and Others v Turkey, concerned the death of one of these motorcyclists.142 On arriving at the southern side of the ceasefire line, a group of the bikers entered the Buffer Zone to stage a demonstration. Turkish security forces allowed a mob to breach the northern point of the ceasefire line and enter the zone where the demonstration was taking place. Scuffles broke out and a group of Turkish and Turkish-Cypriot civilians and police officers isolated several of the bikers, including Isaak. Isaak was chased, captured and beaten to death, with reports suggesting that his death was caused by a large stone being dropped onto the side of his head.143 Noting that the alleged violation did not take place on either Cypriot or Turkish-controlled territory, the Court held that Isaak had been ‘under the authority and/or effective control of the respondent State through its agents’ and, as such, fell within its jurisdiction for the purposes

139 Issa (n 84) [71]. Williams refers to it as the inclusion of an ‘unconscionability approach’; Williams (n 109) 721. 140 Yuval Shany observes these divergences in approach and notes that the ICCPR has the more restrictive language in the text; Yuval Shany, ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Laws’ (2013) 7 Law and Ethics of Human Rights 47, 51. 141 It would be noted in the High Court as remarkable that the case had not ‘previously relied on by the court as influential in this context’; R (Al-Skeini) (HC) (n 65) [210] (Rix J). 142 Isaak (n 86). 143 ibid.

An Unsettled Community 111 of Article 1.144 Thus, the Court did not merely substitute jurisdiction for authority or control; on this occasion, it used both terms.145 This approach is reiterated in the second application of Solomou and Others v Turkey, which took place in the aftermath of Isaak’s funeral, when a group of Greek-Cypriot protestors once again entered the Buffer Zone to hold a vigil.146 Despite the efforts of UN personnel, some demonstrators, including Solomos Solomou, ran to the Turkish side of the Buffer Zone and crossed into the occupied territory of northern Cyprus. Upon doing so, Solomou attempted to climb a flagpole where the TRNC flag was flying.147 Before he could reach the top, he was fatally shot several times. Rather than finding the exercise of jurisdiction on the basis that Turkey had effective control of the TRNC,148 the Court found a jurisdictional link on a personal connection, noting that ‘the deceased was under the authority/and or effective control of the respondent State through its agents’.149 These cases therefore reflect a return to some of the textual ambiguity that had been deployed by the Commission during the earliest inter-state applications between Cyprus and Turkey. IV. AN UNSETTLED COMMUNITY

This chapter, and the last, have identified the Strasbourg interpretive community as a collection of judges who strive to protect the rights of the individual, but are beholden to fears that too generous an interpretation will lead to a backlash from states to the detriment of the system as a whole. The review presents an unsettled picture. While the deliberations in the decades prior to the Banković decision indicate a generally stable community, that judgment and the decade that followed it evidence a regime in turmoil.150 This distinction in behaviour is caused by individual actors’ varying approaches to how best to fulfil the community’s purposive enterprise. Such a distinction is in line with Fish’s thinking as he suggests that the nature of the interpretive community is ‘at once homogeneous with respect to some general sense of purpose and purview, and heterogeneous with respect to the variety of practices it can accommodate’.151 As Sunstein 144 ibid. 145 Miltner sees this as the creation of a ‘new, less rigorous test requiring only indirect control over persons’; Miltner (n 25) 181. 146 Solomou and Others v Turkey App No 36832/97 (ECtHR, 24 June 2008). 147 The decision in Solomou was confirmed in the later case of Panayi v Turkey, which concerned the death of individual within the UN Buffer Zone in Nicosia. See Kallis and Androulla Panayi v Turkey App No 45388/99 (ECtHR, 27 October 2009). On this occasion, the Court appeared to give greater prominence to the fact the individual was entering the TRNC and so this application could have been an exercise of spatial jurisdiction. See Da Costa (n 47) 212. 148 Cyprus v Turkey (n 23) [52]; Loizidou (Preliminary Objections) (n 23) [62]. 149 Solomou (n 146). 150 Shany refers to the decade as one of ‘considerable legal confusion’; Shany (n 140) 57. 151 Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Duke University Press, 1989) 148.

112 Deconstruction and Reconstruction notes, ‘over time, the community will be badly divided. Different people will bring disparate background norms to bear on the question of meaning, and these norms will produce disagreements’.152 Thus, while all of the members in the interpretive community may be pulling in the same direction, this period demonstrates some clear divergences about how they should reach their objective. After Banković, while most judgments were progressive, some were restrictive; almost all were ambiguous.153 This inconsistent approach was readily apparent both within and outside of the community. In the 2011 case of Al-Skeini, Judge Bonello delivered a scathing separate opinion on the Court’s jurisprudence. He noted that: The Court’s case law on art. 1 of the Convention (the jurisdiction of the contracting parties) has, so far, been bedevilled by an inability or an unwillingness to establish a coherent and axiomatic regime, grounded in essential basics and even-handedly applicable across the widest spectrum of jurisdictional controversies.154

In his colourful analysis, he accused the community’s approach of enshrining ‘everything and the opposite of everything’, ‘attempting to reconcile the barely reconcilable’ and being ‘not completely exempt from internal contradiction’.155 States were equally as vocal with their dissatisfaction in relation to the inconsistent consideration. At the Interlaken Conference concerning the future of the ECtHR in 2010, states stressed the ‘importance of ensuring the clarity and consistency of the court’s case-law’ and called for a ‘rigorous application of the criteria concerning admissibility and the Court’s jurisdiction’.156 Academic commentary on the issue was equally as damning, with Raible appropriately noting that ‘every new judgment seems to either add another layer of confusion or line of case-law different from the rest’157 and Shany neatly describing this period as the Court trying to find ‘a not too hot and not too cold “goldilocks” formula’.158 To understand what difficulties this posed, we need to look at the community’s bounded argument space, that area wherein appropriate arguments can 152 Cass Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Harvard University Press, 1993) 189. 153 Mantouvalou comments how the Court ‘tried to justify the restrictive interpretation that it followed in Banković drawing fine, but hardly consistent and convincing, distinctions’; Mantouvalou (n 56) 153. 154 Al-Skeini v UK (2011) 53 EHRR 18, Concurring Opinion of Judge Bonello [O-117]. 155 ibid. 156 See Council of Europe, Interlaken Declaration, High Level Conference on the Future of the European Court of Human Rights (19 February 2010) [4]; and, for similar sentiments, Council of Europe, Brighton Declaration, High Level Conference on the Future of the European Court of Human Rights (April 2012) [15(B)], [23] and [25](C). 157 Lea Raible, ‘The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should Be Read as Game Changers’ (2016) 2 European Human Rights Law Review 161, 161. 158 Shany (n 140) 57. Milanovic is also critical of the Court’s efforts to balance between competing considerations on a case-by-case basis during this period; Milanovic (n 41) 208–09.

An Unsettled Community 113 be advanced and where inappropriate arguments will not ‘fly’.159 As identified in this chapter, and the last, the content of this space is such that almost any understanding of jurisdiction can be provided so long as it is heavily supported by rules of interpretation, inventive reliance on previous decisions or principle, or it is sufficiently minimalist so as to allow the community in future cases the flexibility to further adapt meaning to suit the case at hand. What is the problem with this, one may ask?160 Sunstein suggests it is characteristic of ‘timidity (cowardice?)’,161 but after all, adherence to these interpretive moves has served the interests of the Strasbourg community for the majority of its existence. The answer lies in how this behaviour affects the purposive enterprise of the community as a whole. Over time, the commitment to fulfilling the community’s enterprise concurrently led to a steady degradation of any certainty in the scope of the Convention’s application. During the early decades of the system, ambiguities were relatively unproblematic as the jurisprudence was disparate, judgments bore little in the way of practical consequences for states and it was generally low reputation parties that faced sanctions. In the post-2000 era, these foundations had shifted. Now the Strasbourg Court was regularly being called upon to give meaning to Article 1, its statements were receiving considerably more scrutiny from academics and national courts, and – the critical point – they all had the overwhelming shadow of the Banković judgment to navigate. That decision, while fully complying with the organising principle, posed huge challenges for any subsequent consideration of Article 1. Future decisions of the community were inevitably to return to protecting the individual’s rights and so were always going to have to confront it. However, in dismantling the principal components of the Banković decision in such a short amount of time, the community also chipped away at its own mask of interpretive restraint. The speed with which it was contradicted both highlighted the variability of jurisdiction and the possibility for interpretive divergence, and this posed problems for the interpreters’ legitimacy, as it made the court’s rulings appear arbitrary.162 It is this threat to the Court’s legitimacy that presented the most profound challenges. As Franck notes: ‘The degree of determinacy directly affects the degree of a rule text’s perceived legitimacy.’163 The increased indeterminacy during this period had a direct impact on the perceived legitimacy both of

159 Stanley Fish, Winning Arguments: What Works and Doesn’t Work in Politics, the Bedroom, the Courtroom and the Classroom (Harper, 2016) 72. 160 Sunstein notes that ‘in some domains, minimalism is a terrible blunder’; Cass Sunstein, ‘Beyond Judicial Minimalism’ (2007) 43 Tulsa Law Review 825. 161 ibid 827. 162 Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge University Press, 2015) 158. Miller states that the Court’s ‘failure to provide a clear answer on an issue of pressing legal and policy concern risks undermining its institutional credibility’; Miller (n 93) 1230. 163 Thomas Franck, The Power of Legitimacy among Nations (Oxford University Press, 1990) 56.

114 Deconstruction and Reconstruction Article 1 and of the Court itself. The community’s practice had therefore come full circle. In an attempt to meet its purposive enterprise, the Strasbourg Organs had deployed a series of interpretive moves. While successful in protecting the individual and developing authority throughout the twentieth century, in the post-2001 period, these moves ultimately chipped away at any moderate determinacy the community had achieved and laid bare a lack of clarity, consistency and transparency in the interpretive process that rendered the entire venture’s legitimacy questionable. As Dzehtsiarou notes, more so than any other international institution, ‘Human Rights tribunals cannot function effectively if they are perceived to be illegitimate’164 and ‘Arbitrary decision-making is a significant challenge to the Court’s legitimacy’.165 Alongside De Londras, he observes that ‘for the ECtHR ensuring consistency, coherence, legal certainty and predictability is key to making a claim for legitimacy based on the method of decision making that is used’.166 These characteristics were wholly absent in the post-Banković period, with the result being that a legitimacy deficit materialised, and the pull towards compliance was somewhat eroded.167 A correction was required. This opportunity was to come in the Iraq conflict litigation, but before turning to this period, I first need to explore the enterprise, motivations and moves of the two other interpretive communities tasked with providing meaning to Article 1.

164 Dzehtsiarou (n 162) 143. 165 ibid 158. 166 Fiona de Londras and Kanstantsin Dzehtsiarou, Great Debates on the European Convention on Human Rights (Palgrave Macmillan, 2018) 6. 167 The ‘legitimacy wall’ had been approached. Dzehtsiarou describes this is a point which the court should not go beyond in order to maintain its legitimacy; Dzehtsiarou (n 162) 155.

5 The Contracting Parties Competing for Meaning I. INTRODUCTION

F

rom 3 September 1953, when the ECHR entered into force, the Contracting Parties that had spent the post-war years creating the Convention began to cede power over its interpretation to the Strasbourg Organs. The EComHR was eligible to receive petitions from July 1955. Less than four years later, in early 1959, the ECtHR was established. From this point onwards, the primary responsibility for interpreting the Convention’s text lay with these judicial bodies, and the ability of states to control the treaty’s meaning was restricted.1 This is not to say that states lost any power to influence the understanding of the Convention’s provisions. Yet, in order to do so, they have been required to engage with the text in a different way from judicial institutions. In particular, they have had to compete for meaning. Fish describes how this process works in relation to abstract concepts like ‘jurisdiction’, noting that they: [D]o not have any ‘natural’ content but are filled with whatever content and direction one can manage to give them. [They are] not an independent value but a political prize, and if that prize has been captured by a politics opposed to yours, it can no longer be invoked in ways that further your purposes for it is now an obstacle to those purposes.2

States have therefore been compelled to compete with other stakeholders – applicants, third-party interveners, the judges on the Commission and the Court – to control the meaning of the Convention’s text. In this chapter, I use the two ways in which Contracting Parties have competed for meaning in order to demonstrate the connection between their interpretive practices and their

1 The original text of the ECHR extends the jurisdiction of the ECtHR to all matters of ‘interpretation and application’ of the Convention; European Convention on Human Rights (original text), art 45. 2 Stanley Fish, There’s No Such Thing as Free Speech and it’s a Good Thing, Too (Oxford University Press, 1994) 102. For further discussion of this, see Michael Robinson, Stanley Fish on Philosophy, Politics and Law (Cambridge University Press, 2014) 90–93.

116 The Contracting Parties purposive enterprise of an institutional commitment to the European human rights project alongside a deep aversion for being constrained, or found in violation, of a human rights obligation. The first way in which states have approached this contest is the meaning generation outside of the courtroom that accompanies any instance where a state relies on an interpretation in order to undertake a specific action. Through premising an action on a particular understanding, and that action having an impact, the state brings about a transformation from a mere interpretation to a meaning.3 Of course, that meaning can later be challenged by other states, its accuracy can be questioned and – particularly where there is an authoritative arbiter on the meaning like a Court – it can ultimately be rejected. Yet where a state is confident enough to deploy the interpretation as an explanation or justification, it will have ‘captured’ that meaning, even if only for a short period.4 Where the justification remains unchallenged, it can develop, become more authoritative, be recognised by other states and judicial institutions as acceptable, and ultimately be treated as state practice.5 Much will therefore depend on the reaction of others within the particular community and beyond.6 The first part of this chapter uses the UK’s approach to Article 1 jurisdiction in the Iraq conflict (2003) as a way of demonstrating how states can generate meaning in this manner and how the angle they take is consistent with their purposive enterprise. The second pathway brings the discussion back into the judicial forum and charts the way in which states can shape meaning through arguments made at court. In this sense, states are not automatically rendering the meaning themselves, but are influencing how other communities do so. As demonstrated in the previous two chapters, the Strasbourg Organs are highly attuned to the expectations and perceptions of Contracting Parties. This is because the ongoing compliance of states with the Convention regime forms part of the Strasbourg purposive enterprise. In this chapter, I will show how states have used different styles of argument as a way of attempting to influence the meanings generated by the Strasbourg Organs in accordance with their purposive enterprise. These impulses define the ‘bounded argument space’ of permissible suppositions that can be made and, in turn, construct the parameters of what style of arguments should and should not be advanced.7 I contend that the arguments made by the Contracting Parties in cases concerning the Convention’s

3 This has been discussed initially in ch 2, pp 34–41. 4 Fish (n 2) 102. 5 On recent developments in state practice in respect of customary law, see International Law Commission, ‘Draft Conclusions on Identification of Customary International Law’ (2018) 2(2) Yearbook of the International Law Commission [5]–[8]. 6 As Franck notes: ‘The performance of states in the international community is constantly subject to qualitative evaluation by other states, institutions, and processes.’ See Thomas Franck, The Power of Legitimacy among Nations (Oxford University Press, 1990) 61. 7 Stanley Fish, Winning Arguments: What Works and Doesn’t Work in Politics, the Bedroom, the Courtroom and the Classroom (Harper, 2016) 72.

Applying the ECHR to Iraq 117 extraterritorial application fall into three separate categories representing a sliding scale of acceptability: orthodox legal debates, politico-legal submissions and potential bad faith contentions.8 To varying degrees, these arguments influence the other interpretive communities in respect of how they generate their own understanding of jurisdiction. In this section, I present examples of these categories of argumentation in both the pre-2001 period and the British contentions in Iraq-related cases. In the final section, I briefly take a step back from these intricate arguments made by states both within and outside the courtroom to consider the picture as a whole. In doing so, I reflect on how states have incrementally grown to recognise, and internalise, the extraterritorial application of the ECHR, channelling their deliberations away from competing for the meaning of Article 1 jurisdiction and into arguments about how the Convention applies abroad. II. APPLYING THE ECHR TO IRAQ

At 2.30 am on 20 March 2003, missiles fired from American air force and naval vessels struck a series of targets in the Baghdad region, starting the (second) Iraq War.9 Joined by a large British contingent, along with smaller contributions from Australia, Denmark and Poland, the US and its allies quickly swept over the country. By 5 April, British forces had captured the southern city of Basra, while four days later, US troops gained control of Baghdad. Major combat operations ended on 1 May 2003 and a 14-month period of joint occupation by British and American forces followed.10 After 28 June 2004, the legal basis for the UK’s involvement in Iraq shifted from that of an occupying power to an invited guest on behalf of the newly constituted Iraqi government.11 British forces would remain in the country for the next five years to assist with its stabilisation and reconstruction, principally through security operations. By the time they would leave, the conflict would have cost the British government at least £9.2 billion (the equivalent of £11.83 billion in 2016).12 The military had lost 179 lives, while the estimated death toll of the Iraqi population would be in the hundreds of thousands.13 8 Ian Johnstone notes that: ‘It is in anticipation of judgement by the interpretive community that legal arguments are advanced.’ See Ian Johnstone, ‘The Power of Interpretive Communities’ in M Barnett and R Duvall (eds), Power in Global Governance (Cambridge University Press, 2004) 198. 9 For a recent account of the decision to take the UK into the war, see Patrick Porter, Blunder: Britain’s War in Iraq (Oxford University Press, 2018). 10 As Peter Rowe importantly notes, the UK had not been an occupying power since it ratified the Geneva Conventions in 1957; Peter Rowe, Legal Accountability and Britain’s Wars 2000–2015 (Routledge, 2016) 63. 11 The legal situation in relation to Iraq is charted in Al-Skeini v UK (2011) 53 EHRR 18 [9]–[23]. 12 Report of a Committee of Privy Councillors, The Report of the Iraq Inquiry (2016) HC 264, Executive Summary [820]. 13 Iraq Body Count is a website that provides a public record of violent deaths in Iraq since the invasion in March 2003. See www.iraqbodycount.org.

118 The Contracting Parties Even before the first bombs were dropped, the Iraq War had become somewhat of a fascination for international lawyers. Dominic McGoldrick accurately, if chillingly, notes that ‘the profession of an international lawyer can appear to be like that of an undertaker. Business is bad if no one is dying’.14 For most scholars, the arguments canvassed on Iraq were about the legality of the invasion itself. Debates raged about veracity of a doctrine pre-emptive self-defence and the plausibility of reviving UN Security Council resolutions.15 However, for some practitioners, the inevitability of the conflict had focused minds away from its legality towards the manner in which it was to be fought and the treatment of the domestic population.16 It is here where the extraterritorial question became a live issue. If the Convention applied to the UK’s activities in Iraq, then British forces would be constrained in their military actions in accordance with the Convention rights.17 The rights to life, liberty and a fair trial, alongside the prohibition on torture, inhuman and degrading treatment, could be particularly troublesome for military units to implement. The question of the Convention’s application was therefore no longer merely a niche point of academic debate or a topic of consideration for displaced Cypriots; it held considerable practical importance for the conduct of Britain’s armed forces.18 A. A Costly Gamble The UK’s initial public position was therefore to simply state that the Convention was wholly inapplicable to its military activities in Iraq.19 A letter in February 2004 mentioned in later domestic litigation contained a statement by 14 Dominic McGoldrick, From ‘9–11’ to the Iraq War 2003: International Law in an Age of Complexity (Hart Publishing, 2004) 6. 15 See generally V Lowe, ‘The Iraq Crisis: What Now? (2003) 52 ICLQ 859; R Singh QC, ‘Why War is Illegal’ (The Times, 14 March 2003), https://www.thetimes.co.uk/article/why-war-is-illegalfcm3f0ppl6c; Ulf Bernitz et al, ‘War Would Be Illegal’ (The Guardian, 7 March 2003), https://www. theguardian.com/politics/2003/mar/07/highereducation.iraq. 16 Williams notes how the main firm which combated the issue of art 1 jurisdiction, Public Interest Lawyers of Birmingham, had set out to consider the legal consequences arising from conflict even before that conflict had begun. Andrew Williams, A Very British Killing: The Death of Baha Mousa (Vintage, 2012) 172. 17 Bill Bowring, ‘How Will the European Court of Human Rights Deal with the UK in Iraq?: Lessons from Turkey and Russia’ in Phil Shiner and Andrew Williams (eds), The Iraq War and International Law (Hart Publishing, 2008) 286–87. 18 Miller comments that ‘European participation in the “war on terror” has transformed the question of the Convention’s extraterritorial scope from a doctrinal abstraction into an issue with profound and very real political and legal ramifications’. Sarah Miller, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’ (2009) 20(4) European Journal of International Law 1223, 1224. See also Rick Lawson, ‘Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights’ in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 84. 19 Andrew Williams, ‘The Iraq War and International Law: By Way of an Introduction’ in Phil Shiner and Andrew Williams (eds), The Iraq War and International Law (Hart Publishing, 2008) 5.

Applying the ECHR to Iraq 119 the Defence Secretary contending that the ECHR did not have extraterritorial application.20 In later instances in 2004, different government ministers would take a similar approach. In a statement on 7 April 2004, Armed Forces Minister Adam Ingram reiterated that the Convention had no application to Iraq. He stated: It was not designed to be applied throughout the world and was not intended to cover the activities of a signatory in a country which is not signatory to the Convention. The ECHR can have no application to the activities of the UK in Iraq because the citizens of Iraq had no rights under the ECHR prior to the military action by the Coalition Forces.21

The Foreign Secretary would later state in a Parliamentary Written Answer on 17 May 2004 that ‘The government’s position is that the ECHR rights have no application in Iraq’22 and, a matter of days later: The citizens of Iraq had no rights at all under the ECHR prior to military action by the coalition forces; furthermore the United Kingdom does not exercise the same degree of control over Iraq as existed in relation to the Turkish occupation of northern Cyprus.23

Similarly, in the first phase of litigation concerning the application of the HRA to the conduct of UK forces, government lawyers would argue that the Convention had no application, as Iraq was not a Contracting Party to the treaty.24 The implications of this determination cannot be underestimated. Unconstrained by human rights obligations, the treatment of Iraqi civilians, and particularly detainees, fell below accepted standards.25 This behaviour was inevitably challenged in domestic, and subsequently international, courts, leading to a wealth of Iraq-related jurisprudence. Much of the litigation can be traced

20 In response to a request, ‘the Secretary of State contended that the ECHR did not have extraterritorial application’; R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust and Another Intervening) [2006] 3 WLR 508 (CA) [172]. 21 The Rt Hon. Adam Ingram MP, Ministry of Defence, Letter to Adam Price MP, cited in Ralph Wilde, ‘The “Legal Space” or “Espace Juridique” of the European Convention on Human Rights: Is it Relevant to Extraterritorial State Action?’ (2005) 2 European Human Rights Law Review 115, 116. See also Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (GlassHouse Press, 2008) 74. 22 Jack Straw, Written Answer, House of Commons, ‘European Convention on Human Rights’ HC Deb 17 May 2004, vol 42(87), cols 674–75W. 23 HC Deb 19 May 2004, vol 421v, cols 1083–84W. For analysis of these exchanges, see Ralph Wilde, ‘The Applicability of International Human Rights Law to the Coalition Provisional Authority (CPA) and Foreign Military Presence in Iraq’ (2004–05) 11 ILSA Journal of International and Comparative Law 485, 487–88. 24 R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust Intervening) [2005] 2 WLR 1401 (HC) [121]. 25 The Iraq Inquiry would find that: ‘The Government’s consideration of the issue of Iraqi c ivilian casualties was driven by its concern to rebut accusations that Coalition Forces were responsible for the deaths of large numbers of civilians, and to sustain domestic support for operations in Iraq.’ See Report of the Iraq Inquiry (n 12) [824].

120 The Contracting Parties back to this initial decision by the government that the Convention did not apply to its operations, and yet the position rested on uncertain grounds. Prior to March 2003, it was apparent that the UK had understood the Convention’s obligations to apply in situations similar to those emerging in Iraq. There is evidence in the UK’s submissions in the Banković case in late 2001 that the government unequivocally recognised that the Convention applied throughout the world wherever an individual was within a state’s custody.26 This would naturally have included any situation where an individual was detained in Iraq. Therefore, one could speculate that the British authorities altered their position in light of the restrictive nature of the Banković judgment. Of course, there is nothing malign if this were to be the case. It is perfectly reasonable for a party to reappraise its own understanding of an area of law in light of more recent judicial developments, and yet there is further evidence to suggest that Banković had not fundamentally altered the British position. In what is now a telling intervention, former Attorney General Peter Goldsmith gave evidence to the Iraq Inquiry in January 2010 indicating that he had confirmed the Convention’s application to Iraq during the relevant period. He stated: ‘Fundamentally, my advice was that the obligations about the proper treatment of people, which are contained in the European Convention, did apply in relation to detainees.’27 He continued to note that he ‘gave advice on the application of the European Convention to certain aspects of the conduct, advising those standards did need to be complied with’.28 In this statement, we therefore have an unambiguous indication that the UK’s chief legal officer had understood the Convention to apply, at least to a limited extent, in Iraq and had advised on this accordingly. Yet it appears that either this advice was not heeded or, at some other point, the government changed tact. What may have happened? An explanation emerges if this behaviour is linked to the state’s purposive enterprise. On this occasion, British authorities appeared more concerned about the Convention obligations constraining their military operations than being found in violation of a Convention right.29 I would suggest that this led them to take a calculated position concerning the Convention’s application.30 Assisted

26 McGoldrick, (n 14) 6; Lawson (n 18)108 fn 59. See also R (Al-Skeini) (HC) (n 24) [196]. 27 The Report of the Iraq Inquiry (2016) HC 264, Peter Goldsmith Evidence, https://webarchive. nationalarchives.gov.uk/20100518073928/http://www.iraqinquiry.org.uk/transcripts/oralevidencebydate/100127.aspx 228. 28 ibid. 29 In a similar fashion, Beth van Schaack refers to the US position that its human rights obligations do not apply extraterritorially as a ‘strategic policy choice to endeavor to evade scrutiny of its extraterritorial exploits on the merits’; Beth van Schaack, ‘The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change’ (2014) 90 International Law Studies 20, 24. 30 Karen Da Costa notes that certain states that deny the possibility of extraterritorial obligations ‘seem to act more out of Realpolitik considerations than from consistent legal argumentation’; Karen Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Brill/Martinus Nijhoff, 2013) 303.

Three Categories of State Arguments 121 by the textual indeterminacy in the word ‘jurisdiction’, as well as the ambiguity that had emerged in the course of the Banković and post-Banković litigation, British authorities were able to construct a case as to why they held no obligations in Iraq.31 In doing so, they were also able to appear at least nominally committed to the Convention. Their argument was not that out of their own self-interest they would not uphold the Convention’s obligations, but that the Convention simply did not apply. This is indicated further in the provisionality of the language taken by Ingram in a statement on 4 May 2004: Our best judgment is that the European convention on human rights does not apply. I assume that that will be tested in law, as I believe that a community of people exists who will seek to do just that. We know that some groups of lawyers have already indicated that they propose to bring actions against the Government in this matter. We shall have to see how all that plays out.32

The telling nature of Ingram’s comment lies in its conditionality. This was not a definitive statement that the Convention did not apply; instead, it was couched in the terms of an imprecise legal determination. It is an example of a member of the Contracting Party community adhering to its enterprise and presenting an argument that they felt may work.33 The result of the determination that the Convention did not apply inevitably led to a lower standard of treatment applied to both civilians and the enemy. The consequence was a wave of litigation concerning the violation of Convention rights, and the focal point of meaning generation concerning Article 1 jurisdiction shifted from the offices of Westminster and Whitehall back to the courtroom. This relocation also resulted in a reframing of the interpretations and arguments that the state could advance. It was now bound to make an argument within the confines of the community of states that, by the early 2000s, had already defined the parameters to their bounded argument space. III. THREE CATEGORIES OF STATE ARGUMENTS

States have approached the extraterritorial question with a series of arguments that can be distinguished by their levels of potency and risk.34 The potency aspect refers to how effective the argument is likely to be when it is considered by 31 As Franck notes, not only does indeterminacy make it difficult for one to appreciate what is expected, but it ‘also makes it easier to justify non-compliance’; Franck (n 6) 53–54. 32 HL Deb 4 May 2004, vol 420, col 1214. 33 As Ian Johnstone notes: ‘The opinion of a government legal adviser is a gauge of what the judgement of the interpretive community is likely to be.’ See Johnstone (n 8) 191. Feldman contends that the UK took a similar position towards the ECHR in the 1980s and 1990s, where it complied with Strasbourg rulings to the minimum extent possible in order to ‘give a reasonable prospect of not being held in violation’. See David Feldman, ‘Civil Liberties’ in Vernon Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford University Press, 2004) 401. 34 Johnstone (n 8) 198.

122 The Contracting Parties the Court and other parties. A more potent argument is more likely to land and produce a desired effect, yet it also brings with it a higher level of risk. This risk aspect refers to the danger the argument poses to the state’s own credibility as a member of the interpretive community. Where the state advances an argument that is particularly unorthodox, the argument may fall outside of the bounded argument space. This has negative implications for the state as it threatens their membership of the community. As Johnstone notes, these reputational concerns constrain the variance of arguments made by the state: Concerns about plausibility – and the reputational costs associated with advancing implausible arguments – are evidence of a functioning interpretive community. The interpretive community in effect says about farfetched claims: ‘your position is not only patently self-serving – it is legally untenable’ – a judgement governments seek to avoid.35

The three types of argument advanced by this community differ according to how acceptable they are to other members of the Contracting Party community. The first category reflects orthodox legal engagement and sees the state draw on traditional interpretive methods and factual distinctions to address the case at hand. This category is a wholly acceptable way for states to advance arguments. Importantly, it does nothing to challenge the community’s purposive enterprise. The second category reflects more politico-legal contentions and sees the state indicate to the Court what its predicted outcomes of certain interpretations may be. This category is slightly more questionable as it takes the Court away from legal determinations and thus suggests that the law is highly malleable to the context of each case. More importantly, however, these arguments have faced criticism from members of the ECtHR in such a way as to question the state’s commitment to the European human rights project, and thus challenges their purposive enterprise. The third category relates to more unorthodox legal interpretations made by the state in order to achieve a pre-determined goal. This type of argument is largely unacceptable as it suggests that states are not engaging with the system in good faith. In terms of the purposive enterprise, it indicates that the state has wholly prioritised a lack of constraint and evasion of violation to the detriment of their commitment with the human rights regime. The extent to which states deploy each of these categories of arguments appears to be a strong indicator of how important the particular meaning is to them in the case at hand. I will take them each in turn. A. Orthodox Legal Debate The first category of argument reflects the deployment of orthodox legal principles, like canons of interpretation, previous jurisprudence and factual

35 ibid

200.

Three Categories of State Arguments 123 distinctions, in pursuit of a favourable finding. These arguments demonstrate a willingness to play by the perceived rules of the Court system in good faith. They are low risk in that members of the Contracting Party community universally accept them. While they have a lower impact than more politically framed arguments, persistent recourse to these doctrines send a message to other participants that these are the rules that all parties should play by. In turn, this enhances their prestige as a form of interpretive constraint.36 In the early decades of the Convention system, states engaged almost exclusively through these orthodox interpretations, of which three types of argument emerged in relation to the meaning of Article 1. The first of these was to argue that the scope of the Convention’s application was exclusively regulated by its colonial clause.37 The relevant provision for this is Article 56 (formerly Article 63),38 which denotes that a party to the treaty may: [A]t the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall … extend to all or any of the territories for whose international relations it is responsible.39

The way in which this argument was framed in relation to the extraterritorial question was to suggest that because the Convention included an article explicitly referring to its extraterritorial application (the title of Article 56 is ‘Territorial application’), that provision should exclusively regulate where the treaty applies. An example of this argument in operation is the UK’s submission in the early case of Vearncombe v Federal Republic of Germany and UK.40 Like Hess, this case considered activities in Berlin during the Cold War period. The applicants were residents of a Berlin suburb in close proximity to an area of land upon which the British Military Government of Berlin had constructed a shooting range. They alleged that the noise and disruption caused by the shooting range affected their peaceful enjoyment of property and right to a family life.41 British authorities contended that the UK was not in violation of the applicants’

36 Ian Johnstone notes that the debates about the interpretation of the Anti-Ballistic Missile Treaty were conducted on this basis ‘with the protagonists relying on the standard materials and techniques of treaty interpretation’; Ian Johnstone, ‘Treaty Interpretation: The Authority of Interpretive Communities’ (1991) 12 Michigan Journal of International Law 371, 402. 37 Moor and Simpson have noted that the UK made it clear that it would have not signed the Convention without the inclusion of such a clause; Louise Moor and AW Brian Simpson, ‘Ghosts of Colonialism in the European Convention on Human Rights’ (2006) 76(1) British Yearbook of International Law 121, 138. 38 Christopher Lush sets this provision in context: ‘Many multilateral treaties, particularly those concluded after 1945, contain an article permitting contracting parties to extend them to territories for whose international relations they are responsible.’ See Christopher Lush, ‘The Territorial Application of the European Convention on Human Rights: Recent Case Law’ (1993) 42(4) ICLQ 897, 901. 39 European Convention on Human Rights 1950, art 56(1). 40 Vearncombe v UK and Germany (1989) 59 DR 186. 41 ibid.

124 The Contracting Parties rights, as it did not exercise Article 1 jurisdiction in West Berlin. The reason for this was that the UK had ‘not extended the Convention to Berlin’.42 Thus, for the UK in this case, the Convention’s extraterritorial application required an express extension. Ultimately, the Court avoided consideration of the jurisdiction question in this case and positioned its decision to reject the application on other grounds.43 The deployment of this argument has proved popular. Turkey made a similar contention in the initial inter-state cases with Cyprus.44 Spain and France repeated the submission in relation to Andorra during the Drozd and Janousek litigation.45 Russia evoked the contention in the more recent case of Catan.46 Implicit in this argument is a deep legal formalism. It rejects any notion that a factual case for jurisdiction can be established and instead suggests that a state is only obligated to fulfil those commitments that it has expressly accepted. While an acceptable form of argument within the Contracting Party community, this approach has largely been unsuccessful in persuading the Strasbourg Organs, and yet the contention has not totally abated.47 A second type of argument was to accept the Convention’s extraterritorial application and yet attempt to mould the meaning of the word ‘jurisdiction’. Here, states would wield interpretive rules in a particular manner in order to achieve their objective.48 We saw this in Banković, where the respondent states combined to present their own interpretation of Article 1 jurisdiction, relying on its ordinary meaning in public international law,49 with recourse to state practice50 and the travaux préparatoires.51 Rather than challenging the notion of the treaty’s extraterritorial application, this method accepted it, but attempted to build a more preferable definition of jurisdiction around it. This approach was very successful, not only with the Court accepting these contentions, but justifying its actions with recourse to the same interpretive constraints that the states had put forward. By constructing this new meaning through widely accepted principles of international legal interpretation, the states put pressure on the Court to engage with these interpretive doctrines. At the very least, the Court should appear to be receptive to such constraints in order to demonstrate the legitimacy of its decision-making process and so arguments premised on such sources cannot merely be ignored. By going about their business in this way

42 ibid. 43 ibid. 44 Cyprus v Turkey (1982) 4 EHRR 482, 586. 45 Drozd and Janousek v France and Spain (1992) 14 EHRR 745 [75]. 46 Catan and Others v Russia and Moldova (2013) 57 EHRR 4 [96]. 47 For instance, the UK resurrected the argument in Al-Skeini (ECtHR) (n 11) [111]. 48 Johnstone notes that: ‘Even if law is a tool of power, it must be wielded in a distinctive manner if it is to have the desired effect.’ See Johnstone (n 8) 187. 49 Banković and Others v Belgium and Others (2007) 44 EHRR SE5 [34]. 50 ibid [35]. 51 ibid.

Three Categories of State Arguments 125 and addressing the relevant interpretative community in a manner that they will be receptive to, states have a good prospect of achieving their objective.52 While these two argumentative techniques have been deployed in a sufficient number of cases to establish a pattern, it is in a third category that the vast majority of orthodox contentions have been made. This has involved states directly engaging with the tests set by the Court and advancing factual arguments in order to demonstrate that they did not exercise jurisdiction at the relevant time. As Johnstone notes: ‘Many if not most international legal disputes (like domestic legal disputes) turn on facts as opposed to law.’53 One example of this is the Chamber hearing in the case of Issa and Others v Turkey discussed earlier.54 At the hearing, Turkey disputed the version of events that had been presented by the applicants. While it confirmed that a Turkish military operation had taken place at the relevant time, it contended that Turkish forces had not been within 10 km of the village where the events were alleged to have occurred and that no record of a complaint had been made to any of the military officers in the region.55 Turkey made similar contentions in relation to the cases emerging from the UN Buffer Zone in Cyprus with the arguments advanced in Andreou, Solomou and Isaak that it was not Turkish agents who had committed the violations.56 Similar factual distinctions were made by the Russian authorities in relation to the control over Transdniestria in Ilaşcu57 and again in Catan.58 B. Orthodox Arguments in the Iraq Litigation The British government’s submissions in the Iraq litigation, and thereafter, have fallen into these same three categories of arguments. The first contention advanced by the state fell into the safe category of orthodox legal constructions as it was based almost exclusively on statutory interpretation. This argument was that it was irrelevant as to whether the ECHR had extraterritorial effect, because the HRA did not and, as such, none of the Iraq conflict cases could be heard in British courts.59 Success with this argument would have stifled any further litigation before national judges and – perhaps more importantly for

52 Richard Mullender ‘There is No Such Thing as a Safe Space’ (2019) 82(3) MLR 549, 556. 53 Johnstone (n 36) 419. 54 Issa and Others v Turkey (2004) 41 EHRR 27 [25]. 55 ibid [25]. 56 Andreou v Turkey App No 45653/99 (ECtHR, 3 June 2008); Isaak and Others v Turkey App No 44587/98 (ECtHR, 28 September 2006); Solomou and Others v Turkey App No 36832/97 (ECtHR, 24 June 2008). 57 Ilaşcu and Others v Moldova and Russia (2004) 40 EHRR 46 [354]. 58 Catan (n 46) [97]–[101]. 59 Some continue to argue that this should be the position. See especially Richard Ekins and Guglielmo Verdirame, ‘Judicial Power and Military Action’ (2016) 132 LQR 206, 208; Richard Ekins and Graham Gee, ‘20 Years of the Human Rights Act’, written evidence from Policy Exchange’s Judicial Power Project (HRA0033) (2018) [27].

126 The Contracting Parties practical reasons on the ground in Iraq – mean that UK forces would not be found to be constrained by Convention obligations in their dealings with the local population until a case at Strasbourg found otherwise. This argument was first canvassed in the domestic litigation of the seminal Al-Skeini case. This case concerned the death of six civilians during the UK occupation of south-eastern Iraq from 1 May 2003 to 28 June 2004. The applicants were family members of the deceased who had requested a judicial review of the decision by the Secretary of State for Defence (SSD) not to conduct an independent and effective investigation into their deaths in accordance with Article 2. While there were 13 initial cases, by agreement between the parties, the number of claimants whose facts would be considered was reduced to an initial six. In the subsequent litigation, it became apparent that the number of potential claimants had increased considerably.60 The victims were all Iraqi civilians who had died following actions taken by UK armed forces during the occupation of the Al-Basrah region.61 Hazim Al-Skeini had been shot dead by the commander of a British patrol on his way to a funeral on 4 August 2003.62 Muhammad Salim was killed when British soldiers raided his brother-in-law’s home in Basra on the night of 5 November 2003.63 He had been shot in the stomach during the assault and died two days later in a Czech military hospital. Hannan Shmailawi was shot in the course of a gunfight between a British patrol and unknown gunmen on 10 November 2003 at her home at the Institute of Education, where she lived with her family.64 Waleed Sayay Muzban was killed as he drove a bus near a checkpoint manned by a British soldier on 24 August 2003.65 Ahmed Jabbar Kareem Ali was 15 when he was arrested by British soldiers, beaten and forced into the waters of the Shatt-Al-Arab River on 8 May 2003, where he drowned.66 Finally, Baha Mousa was a 26-year-old hotel receptionist who was arrested by British soldiers on 14 September 2003.67 Along with a group of others from the hotel, he was taken to Darul Dhyafa, a British military base in Basra.68 At the facility, he

60 R (Al-Skeini) (CA) (n 20) [12] (Brooke LJ); R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust and Others Intervening) [2007] UKHL 26 [101] (Lord Brown). A change occurred during the litigation when the fifth applicant in the domestic court hearings was substituted for the original seventh applicant at the Strasbourg judgments. The above summary refers to the cases heard at the ECtHR. 61 It should be noted that the facts of a number of the applications were in dispute. 62 The full facts are available in: Al-Skeini (ECtHR) (n 11) [33]–[38]; R (Al-Skeini) (HC) (n 24) [56]–[59]. 63 Al-Skeini (ECtHR) (n 11) [38]–[39]; Al-Skeini (HC) (n 24) [60]–[63]. 64 Al-Skeini (ECtHR) (n 11) [39]–[42], R (Al-Skeini) (HC) (n 24) [64]–[67]. 65 Al-Skeini (ECtHR) (n 11) [43]–[46], R (Al-Skeini) (HC) (n 24) [68]–[76]. 66 Al-Skeini (ECtHR) (n 11) [55]–[62]. 67 ibid [63]–[71], Al R (Al-Skeini) (HC) (n 24) [81]–[89]. 68 The detention facility had formerly been run by Saddam Hussein’s cousin, Ali Hassan al-Majid – better known as ‘Chemical Ali’. For further discussion of Baha Mousa’s death, see Gerry Simpson, ‘The Death of Baha Mousa’ (2007) 8 Melbourne Journal of International Law 340; and Williams (n 16).

Three Categories of State Arguments 127 was tortured and murdered. When his father identified him, he had 93 separate injuries including severe damage to his face. A postmortem revealed he died of asphyxiation.69 Civil proceedings were brought against the Ministry of Defence (MoD), resulting in a formal and public acknowledgement of liability and the payment of £575,000 in compensation. In May 2008 the SSD announced that there would be a public inquiry into his death and the surrounding ill-treatment of detainees. That inquiry concluded after the resolution of this case.70 The Al-Skeini litigation commenced on 14 December 2004.71 Domestic courts had only relatively recently ruled on two cases concerning the extraterritorial application of the HRA, indicating in both that the HRA could be applied abroad.72 Despite the presumed clarity with which the courts had dealt with this issue, the argument was canvassed once again in Al-Skeini73 and would once again fail.74 That this was the state’s primary submission is a further reflection of its consistent approach to limiting the ways in which it could be constrained or found in violation of the Convention and this can be seen by summarising the UK approach a whole. At first, the government’s position had been that the ECHR had no extraterritorial application. This shifted to the Convention potentially having application, but not to Iraq and, subsequently, that even if the Convention had application, the HRA did not. At each stage, there was an attempt to limit both the state’s liability and the constraints that this would impose on their actions.75 This would continue through the other orthodox arguments advanced in court. Principal amongst these was the significance of the Banković case. For the state, this case was ‘a definitive watershed’.76 Reliance on it opened the gateway for the government to make other arguments related to the legal basis of the case. For instance, the notion of a Convention ‘legal space’ meant that the obligations could not apply to Iraq and specifically that the spatial

69 At the resulting court martial, one of the soldiers, Donald Payne, pleaded guilty to the war crime of inhumane treatment. The remaining defendants either had their charges dropped or were acquitted. In April 2007, Payne was sentenced to imprisonment for one year and was dismissed from the Army. 70 Sir William Gage, The Report of the Baha Mousa Inquiry (UK Government, 2011), https:// www.gov.uk/government/uploads/system/uploads/attachment_data/file/279190/1452_i.pdf. 71 R (Al-Skeini) (HC) (n 24). 72 R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] EWCA Civ 1344 [78]–[79]; R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 527. 73 R (Al-Skeini) (HC) (n 24) [289]. See also Dominic McGoldrick, ‘Human Rights and Humanitarian Law in the UK Courts’ (2007) 40(2) Israel Law Review 527, 534–36. 74 The House of Lords would rule by a majority of 6:1 that the act would be understood to mirror the scope in application of the Convention. Dissenting from the majority, Lord Bingham saw the presumption of the territorial application of domestic legislation as becoming stronger over the years rather than weaker; see R(Al-Skeini) (HL) (n 60) [11]. 75 Miller (n 18) 1246. 76 R (Al-Skeini) (HC) (n 24) [115].

128 The Contracting Parties basis for jurisdiction had to encompass European territory.77 The loose mention of Article 56 in the Banković judgment further allowed the British authorities to resurrect this argument, and so it was rehearsed once again that ‘article 56 (ex 63) is the (only) proper means by which the Convention is extended beyond the boundaries of its parties to other territories over which a state party has authority or control’.78 In later Iraq litigation, when it had become apparent that the Convention did apply to Iraq, the state would engage in further moves to create factual distinctions in an attempt to avoid liability.79 C. Politico-legal Arguments The second category of arguments made by the interpretive community of states are those predicated on the perceived policy implications that would emerge if a finding of jurisdiction were made. These arguments are essentially non-deductive in nature. Their use is evidence in itself of the indeterminacy in the law, as it suggests that meaning cannot solely be derived from the relevant text and instead requires an exploration of the potential implications of how something is understood. A particular quality of these arguments is that they are rarely offered in isolation, but instead tend to be advanced alongside orthodox contentions. If an advocate were to advance one as a stand-alone argument, they would be suggesting that a legal interpretation can solely be based on a perception of its consequences rather than any attempt to find a balanced consistent meaning. As Kutz notes, it is ‘unlikely that these forms of reasoning will lead to consistent, much less univocal, results’.80 The acceptability of these contentions appears to be more questionable. Their permissibility lies in the fact that states are certainly free to warn of the potential implications of an interpretation. In some cases, particularly those where the margin of appreciation is being advanced, it is not only wise for states to do so, but could even be framed as their responsibility to inform the court of local domestic implications. Where the rights of an individual are to be balanced against the rights of the community, it is the state, the body with ‘direct and continuous contact with the vital forces of their countries’, that is best positioned to make this judgement and this may require it to explain the perceived implications of an interpretation to the Court.81 The impermissibility of such arguments lies in how they relate to the commitment to the European human rights project aspect of the community’s purposive enterprise. In essence, these

77 ibid [112]. 78 ibid [148]. 79 See ch 7. 80 Christopher Kutz, ‘Just Disagreement: Indeterminacy and Rationality in the Rule of Law’ (1994) 103 Yale Law Journal 997, 1017. 81 Handyside v UK (1979–80) 1 EHRR 737 [48].

Three Categories of State Arguments 129 arguments are dubious because they suggest that the state may not be interpreting the Convention’s provisions in a wholly objective manner and, importantly, judges at the ECtHR have been willing to observe as much. Thus, this category elicits a direct connection between two interpretive communities. This can be demonstrated in the deployment of what I have elsewhere termed the ‘deterrent argument’.82 This contention was effectively a warning from some Contracting Parties to the Court that were it to extend human rights obligations to states undertaking military activities premised on a humanitarian basis, those states might be deterred from participating in such activities in the future. The best example of this argument is in the Banković case, where the respondent states strongly disagreed with the notion that jurisdiction could arise in a cause-and-effect manner, asserting that such an understanding ‘would have serious consequences for international military collective action’83 and that such a finding would ‘risk undermining significantly the States’ participation in such missions’.84 The argument was further pursued by states in their individual submissions in the subsequent case of Beharmi and Saramati.85 This application concerned the death of one child and the serious injury of another when an unexploded munition they were playing with detonated and, separately, the prolonged detention of an individual. Both related to the international territorial administration of Kosovo during the 1990s. In response to the applications, Norway contended that there would be ‘serious repercussions of extending Art. 1 to cover peacekeeping missions’.86 Separately, Poland noted that finding liability in such a case ‘would have a devastating effect on such missions notably as regards the States’ willingness to participate’.87 D. Politico-legal Arguments in the Iraq Litigation Given the dubious legality of the invasion of Iraq, this argument was wisely not pursued in applications involving the UK, yet British authorities attempted to re-invoke the ‘deterrent’ argument as a third-party intervener in the case of Jaloud v The Netherlands.88 Like Al-Skeini, this application concerned an alleged breach of the investigative components of Article 2. The applicant’s son died when a car that he was travelling in was fired upon as it approached a checkpoint manned by both Iraqi and Dutch military personnel in April 2004. 82 Conall Mallory and Stuart Wallace, ‘The Deterrent Argument and the Responsibility to Protect’ (2015) 19(8) International Journal of Human Rights 1213. 83 Banković (n 49) [41]. 84 ibid. 85 Behrami v France (2007) 45 EHRR SE10. 86 ibid [90]. 87 ibid [111]. 88 Jaloud v The Netherlands (2015) 60 EHRR 29.

130 The Contracting Parties It was unclear whether the bullets that killed him were fired by the Iraqi or Dutch forces. Intervening in the case, the UK warned the Court that if it: [W]ere to conclude that the Netherlands had jurisdiction in the present case, there was a ‘real risk’ that Contracting States might in future be ‘deterred from answering the call of the United Nations Security Council to contribute troops to United Nations mandated forces, to the detriment of the United Nations Security council’s mission to secure international peace and security’.89

On this occasion, the deterrent argument received a response in an individual opinion by Judge Motuc. She noted: [T]he UK’s argument concerning the ‘real risk’ that states might be reticent to respond to calls from the United Nations Security [Council] to take part in an intervention under that body’s mandate is, in our opinion, insubstantial from a legal perspective. Soldiers who take part in peace-keeping operations or are members of multi-national forces cannot enjoy immunity simply on account of the fact that their state is participating in such operations.90

By itself, the individual opinion of a judge or even a handful of judges will not render an acceptable argument as unacceptable. We must remember that judges are not part of the same community as Contracting Parties. Moreover, the fact that an argument has been advanced by several members of the interpretive community demonstrates its possible acceptability. Nonetheless, as the purposive enterprise of the Contracting Parties is to give (at least an appearance of) a commitment to the European human rights project, the individual opinions of the Strasbourg judiciary are a relevant indicator of whether a state is pushing too hard to avoid liability in its arguments. Rather than being members of the same community as states, the court justices therefore play the role of referees in policing the arguments they can make in litigation. Judge Motuc’s rejection of this deterrent contention expressly warns states that such an argument is not legally tenable and implicitly warns them that it will not achieve the results that the state desires. A second argument of this style made by the UK in Iraq litigation was to maintain that the Convention could not apply to the actions of UK forces in Iraq because it would be imperialistic to impose culturally alien standards upon the Iraqi population.91 Of particular interest to this argument is the fact that the state had been given considerable assistance in formulating and sculpting it from members of the British judiciary. It was tentatively first advanced in the High Court Al-Skeini application, where the government linked it to the provision for having regard to local requirements in the ‘colonial clause’ of 89 ibid, Concurring Opinion of Judge Motuc [126]. 90 ibid, Concurring Opinion of Judge Motuc [7]. 91 Domestic judges’ consideration of this argument is examined in Tobias Thienel, ‘The ECHR in Iraq: The Judgment of the House of Lords in R (Al-Skeini) v Secretary of State for Defence’ (2008) 6(1) Journal of International Criminal Justice 115, 122–24.

Three Categories of State Arguments 131 Article 56(3). The contention was that Article 56 was the only proper way to extend the Convention extraterritorially as it afforded the state the opportunity to tailor the Convention’s application to ‘local requirements’.92 Thus, the Convention could not apply to British forces in Iraq because it would impose unwelcome European cultural norms on the domestic population. This argument received an unsympathetic reception by Rix J at the High Court. He referred to it as ‘an unhappy submission to have to make about a country which was one of the cradles of civilisation’93 and reminded the government that: ‘The Convention was not created because of the humanity of Europe, but because of its failures.’94 However, at the House of Lords, the argument received a warmer response when it was connected to the possibility of spatial jurisdiction. Lord Rodger was particularly taken with it. Focusing on the regional focus of the Convention, with judges assessing the prevailing standards in European states, he noted: So the idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European court in the utterly different society of southern Iraq is manifestly absurd … If it went further, the court would run the risk not only of colliding with the jurisdiction of other human rights bodies but of being accused of human rights imperialism.95

This sentiment was then echoed by Lord Brown, again specifically in relation to the spatial heading: The point is this: except where a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population.96

This cultural rationale was subsequently advanced by the UK at the ECtHR Al-Skeini hearings, where it noted that: The essentially territorial basis of jurisdiction reflected principles of international law and took account of the practical and legal difficulties faced by a State operating on another State’s territory, particularly in regions which did not share the values of the Council of Europe Member States … Any other approach would risk requiring the state to impose culturally alien standards, in breach of the principle of sovereign self-determination.97

The principal problem with this contention is that it attempts to displace rights application by taking a broad-brush approach to a highly specific set

92 R

(Al-Skeini) (HC) (n 24) [148]. [279]. 94 ibid. 95 ibid [78]. 96 ibid [129]. 97 Al-Skeini (ECtHR) (n 11) [109]–[110]. 93 ibid

132 The Contracting Parties of circumstances. As Besson notes, there are certainly legitimate concerns about the application of regional human rights treaties to a population who have not accepted those rights – either through ratification of the relevant treaty or through how it has been constructed.98 Yet in the cases to emerge from Iraq, this concern was ill-founded. After all, these cases were not about the British state imposing Western values on the Iraqi population; instead, they raised questions about whether the British state could evade accountability for the actions of its soldiers. Similar to the deployment of the deterrent argument, this contention was deemed untenable at the ECtHR, this time by Judge Bonello. He noted: It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion … Being bountiful with military imperialism but bashful of the stigma of human-rights imperialism sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy.99

Like the deterrent argument above, this response effectively designates the cultural imperialist argument as non-palatable to a member of the Strasbourg community. Its forceful rejection brings into question whether, in advancing the argument, the UK is truly faithful to the European human rights project and therefore questions whether the state is adhering to the community’s purposive enterprise. Yet, as the arbiter for this argument’s unsatisfactory content is a judge and not another member of the Contracting Party community, it remains with at least one foot in the bounded argument space of acceptable contentions. E. Unacceptable Submissions The final category of arguments reflect neither wholly orthodox legal engagement nor a non-deductive contention related to the implications of the legal ruling. Instead, these arguments are an attempt to circumvent the perceived negative implications of the provision at source by eliminating or obfuscating their application through the deployment of dubious legal arguments. They are ‘not only patently self-serving’ but also ‘legally untenable’ and so they sit beyond the limits of acceptable argumentation.100 Importantly, in these arguments, states demonstrate that they are not adhering to the requirement of good

98 Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25 Leiden Journal of International Law 857, 880. 99 Al-Skeini (ECtHR) (n 11) Concurring Opinion of Judge Bonello [O-II38]. 100 Johnstone (n 8) 200.

Three Categories of State Arguments 133 faith underpinning all international agreements and other states are willing to criticise them for this. There is one clear example of this style of argument in relation to the Convention’s scope in application in the initial decades. When the Turkish authorities ultimately accepted the individual petitions procedure, they attempted to insert a territorial restriction in respect of who could allege that a violation had been committed. In January 1987, this declaration read: [T]he recognition of the right of petition extends only to allegations concerning acts and omissions of public authorities in Turkey performed within the boundaries of the territory to which the Constitution of the Republic of Turkey is applicable.101

While the wording of this territorial restriction was tweaked when the individual petition was renewed in both 1990 and 1993, it continued to limit the petition to events occurring on Turkish territory until it was found to be in breach of the Convention in the Loizidou litigation.102 For the present purposes, it is not the Court’s decision in that case that is enlightening; instead, it is the reaction of other states to this argument that bears consideration, as it provides an indication of the outer limits of the community bounded argument space. The governments of Sweden, Luxembourg, Denmark, Norway and Belgium, as well as the Secretary General of the Council of Europe, all indicated their concern with the submission.103 The government of Greece went further by referring to the restriction as being null and void.104 These reactions are an indication of a healthy interpretive community. Such a community acts as a constraining force on interpretive discretion to such an extent that it makes the understandings generated at least moderately determinate – and this is precisely what happened with this example. Members of the community voiced their dissatisfaction with this argument and thus demonstrated that there were limits to how far a state could stretch its contentions. While not speaking in the terms of interpretive communities, Franck gives an indication of this in operation at the international level: If a rule is interpreted by a party seeking to justify its violation in such a way as to evoke derisive laughter in any reasonably objective observer, then the rule must have a degree of determinacy, because the laugh originates in the incongruity between the violator’s tortured definition of the rule and its range of plausible meaning.105

Thus, Franck contends that: ‘When everyone scoffs at an exculpatory definition, the outer boundary of the rule’s elasticity has been established.’106 The outer

101 Loizidou

v Turkey (Preliminary Objections) (1995) 20 EHRR 99 [15]. [25]. 103 ibid, Sweden [19]; Denmark [21], Norway [22] Secretary General [23]; Belgium [24]. 104 ibid [18]. 105 Franck (n 6) 55. 106 ibid 57. 102 ibid

134 The Contracting Parties boundary of what states will accept is defined in this episode with a number of community members demonstrating a concern for the Turkish argument. The Court would cite this inter-state concern as ‘uniform and consistent State practice’ in rejecting the argument.107 F. Unacceptable Submissions Post-Iraq: Extraterritorial Derogations? The diet of argumentation advanced by the UK during the Iraq litigation was exclusively from the orthodox and politico-legal categories. In the next two chapters, I will chart the course of this litigation, both in British courts and at Strasbourg. For the present purposes, it suffices to note that the UK suffered heavy defeats across the jurisprudence and this gave rise to a considerable backlash from the British government. With this in mind, if we fast-forward to the point after the major litigation concluded and the legal fallout began to emerge, we encounter the deployment of a potentially unacceptable submission. Following a number of years of verbal criticisms in respect of Convention liability in Iraq, in 2016 the British government added a legal dimension to its response and announced that in future overseas conflicts, it would extraterritorially derogate from the Convention.108 Doing so will reduce the level of human rights obligations owed by British forces while deployed on overseas military operations. A number of academic commentators have been supportive of extraterritorial derogations as an effective solution to much of the consternation that has been caused by the application of human rights obligations to conflict situations. Milanovic suggests that the practice of extraterritorial derogations is ‘not only permissible, but may even be necessary and desirable, as part of a price worth paying for extensive and effective application of (human rights) treaties outside states’ boundaries’.109 Wallace contends that derogating from the Convention would offer significant benefits not only to the state but also to the court.110 The object and purpose of derogations under the international human rights system is to allow a state to lower its human rights obligations during times of

107 The Court noted that: ‘The existence of such a uniform and consistent State practice clearly rebuts the respondent Government’s arguments that restrictions attaching to Articles 25 and 46 declarations must have been envisaged by the drafters of the Convention.’ See Loizidou (Preliminary Objections) (n 101) [81]–[85]. 108 These protests had been predicted by Bill Bowring almost a decade earlier. See Bowring (n 17) 312. 109 Marko Milanovic, ‘Extraterritorial Derogations from Human Rights Treaties in Armed Conflict’ in Nehal Bhuta (ed), The Frontiers of Human Rights (Oxford University Press, 2016) 55. See also Stuart Wallace, ‘Written Evidence Submitted from Dr Stuart Wallace, Joint Committee on Human Rights Inquiry into Extraterritorial Derogations’ (2017). 110 Stuart Wallace, The Application of the European Convention on Human Rights to Military Operations (Cambridge University Press, 2019) 193.

Three Categories of State Arguments 135 crisis in order to conduct actions necessary to achieve ‘the restoration of a state of normalcy where full respect’ for human rights obligations can be secured once again.111 Article 15 ECHR allows states to limit the obligations they owe during times of ‘war or other public emergency threatening the life of the nation’ so long as such measures are ‘strictly required by the exigencies of the situation’ and ‘not inconsistent with its other obligations under international law’.112 No derogation can be made for obligations entailed in respect of the right to life, except in respect of ‘deaths resulting from lawful acts of war’, and the prohibitions on torture, slavery and punishment without the law.113 However, there are problems with using derogations in an extraterritorial context. Some question whether a state that elects to wage war, thus creating an emergency, can be justified in exempting itself from recognised obligations with respect to that situation.114 There is also a technical debate as to whether the Article 15 provision allows for an extraterritorial derogation. In particular, there is a question of whether the ‘life of the nation’ referred to in Article 15(1)115 could ever be conceived of as a foreign nation where a Contracting Party has intervened, or whether it has to be understood as the state advancing the argument being in such grave peril to merit a derogation.116 If an extraterritorial understanding of this nature was permissible, further debates would then arise concerning the extent to which the relevant measures were proportionate to the situation.117 Without any context, the British extraterritorial derogations argument could be conceived of as an orthodox approach. It is sophisticated, grounded heavily in the text of the Convention’s provisions and, viewed neutrally, is aimed at meeting a purportedly altruistic objective of restoring a state of normalcy in the given territory. Yet, consideration of where this argument has come from, and the goals that it is being sought to achieve, demonstrates how the argument could fall outside of the bounded argument space. The contention emerged after the British Conservative Party Conference in October 2016, when the then Defence Secretary Michael Fallon told the audience that: [M]uch of the litigation we face comes from the extension of the European Convention on Human Rights to the battlefield. This is damaging our troops, undermining military operations, and costing taxpayers’ [sic] millions. So I can announce today that in future conflicts we intend to derogate from the Convention. That would

111 Human Rights Committee, General Comment 29, States of Emergency (Article 4), UN Doc CCPR/C/21/Rev.1/Add.11(2001) [1]. 112 European Convention on Human Rights 1950, art 15. 113 ibid. 114 Campbell McLachlan, Foreign Relations Law (Cambridge University Press, 2014) 334. 115 European Convention on Human Rights 1950, art 15(1). 116 For a detailed discussion of the issue, see Jane Rooney ‘Extraterritorial Derogation from the European Convention on Human Rights in the UK’ (2016) 6 European Human Rights Law Review 656. 117 ibid 661.

136 The Contracting Parties protect our Armed Forces from many of the industrial scale claims we have seen post Iraq and Afghanistan.118

Two immediate problems arise here. The first is that the government’s intended use of the derogations would not be to restore the state of normalcy wherein human rights obligations could be secured once again; instead, the purported aim would be to stop the state having to investigate alleged human rights abuses committed by its own forces. This is hardly engaging with Article 15 in good faith. The second is that the government appears intent on derogating from the Convention come what may.119 The text of Article 15 sets very specific circumstances in which a derogation would be justifiable, ones that can only be met through a contemporary factual analysis.120 The statement above suggests that there would be a presumption in favour of extraterritorially derogating regardless of what situation may arise.121 With these context statements, the argument appears considerably more malign. The state’s argument is that the UK will presumptively derogate from the Convention in order to stifle litigation concerning the Convention’s extraterritorial application. The aim would be to avoid human rights obligations because they are a nuisance rather than in order to achieve a more humanitarian objective. Such a contention indicates a level of bad faith and could be perceived as so ‘patently self-serving’ as to be treated as unacceptable.122 It would go too far against the component of the community’s purposive enterprise that recognises a commitment to the European human rights project. Much will therefore depend on the opinions of other states as and when it is deployed, for it is only those states that will be able to designate it as unacceptable. Indeed, it may be less likely for states to discount this argument than the intended restriction in Loizidou, as there is an expectation that states will object to reservations of that nature that they are unwilling to accept.123 118 ‘Full Text: Michael Fallon’s Tory Party Conference Speech’ (The Spectator, 4 October 2016), https://blogs.spectator.co.uk/2016/10/full-text-michael-fallons-tory-party-conference-speech. 119 When reproduced in a Written Ministerial Statement the following week, the language softened. The statement noted that ‘before embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question. Any derogation would need to be justified and could only be made from certain Articles of the Convention’ (emphasis added). See Earl Howe, Military Operations–European Convention on Human Rights Derogation: Written Statement – HLWS169, https://www.parliament.uk/business/publications/ written-questions-answers-statements/written-statement/Lords/2016-10-10/HLWS169. 120 Lawless v Ireland (No 3) (1979–80) 1 EHRR 15 [28]. 121 In a letter from Fallon to the Chair of the Joint Committee on Human Rights, the Secretary of State for Defence confirmed his understanding that a presumptive derogation was compatible with the conditions required by art 15 ECHR. See Annex, Letter from Michael Fallon to Harriet Harman (22 November 2016). 122 Johnstone (n 8) 200. 123 UN, Human Rights Committee, General Comment 24 (52), General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant (2 November 1994) UN Doc CCPR/C/21/Rev.1/Add.6.

State Acceptance of the Convention’s Extraterritorial Application 137 G. Preliminary Comments Drawing these categories together and reflecting on the pattern within the Article 1 jurisprudence, three trends emerge. First, it is clear that states engage almost exclusively in an orthodox manner, reflecting their commitment to engage with the Convention institutions – and with one another – in good faith. This is an indication not only of a healthy interpretive community but also of the stability in the process of legal interpretation. Second, it is noteworthy that the two politico-legal arguments advanced had some success in judicial proceedings. While both were ultimately rejected by individual members of the Strasbourg judiciary, it is worth noting that in the hearings of Banković and Behrami, where the deterrent argument was advanced, and the domestic adjudication of Al-Skeini, where the human rights imperialist contention took shape, there were considerable victories for the state. There is therefore some suggestion that while questionable and objectionable, these contentions may have influence. Third, there may be a correlation between the less acceptable politico-legal and bad faith arguments, and the significance of the case for the state in question. It would appear that states may be more willing to move their contentions to the periphery of the bounded argument space, and beyond, where the implications of the decisions are potentially more pervasive than where the decision ultimately affects only a handful of applicants. IV. STATE ACCEPTANCE OF THE CONVENTION’S EXTRATERRITORIAL APPLICATION

Fish tells us that ‘argument is everywhere, argument is unavoidable, argument is interminable’.124 As Mullender expresses, ‘there is, on Fish’s analysis, no escape from argument’.125 Yet there are certainly points of rupture and battlegrounds where the propensity for argument is more likely to occur. Looking across the half-century in which states have been engaging with the extraterritorial question, this battleground swiftly moved from the notion that the Convention could not apply extraterritorially to the contention that it could apply abroad, but did not in the case at hand. In the early years, there were isolated instances in litigation where the Contracting Parties suggested that the Convention’s scope in application was territorially restricted. Given that the Commission had implied the treaty’s extraterritorial application in X v Federal Republic of Germany and Hess, and then expressly stated it in the Cyprus v Turkey litigation, it is unsurprising that this argument was rarely deployed. Two early examples of this include

124 Fish

(n 7) 3. (n 52) 551.

125 Mullender

138 The Contracting Parties Turkey, in the inter-state case against Cyprus,126 and Switzerland, in the case of X and Y.127 The Turkish articulation of this argument is the clearer of the two: They submit that, under Art. 1 of the Convention, the Commission’s competence ratione loci is limited to the examination of acts alleged to have been committed in the national territory of the High Contracting Party concerned.128

These contentions failed and were short-lived, with states instead seeing the acceptance of extraterritorial obligations as a necessary price to pay in order to demonstrate adherence to the Convention system. Of course, this did not stop their arguments, but instead largely channelled them into submissions that the Convention simply did apply in the respective case.129 For instance, the Turkish authorities swiftly changed tack and sought to fight the existence of jurisdiction on the particular facts. Turkey noted in a third inter-state application with Cyprus that Article 1 ‘covered not only the metropolitan territory of the State concerned but also other areas under its control’.130 Elsewhere, it accepted the possibility of spatial131 and then personal jurisdiction.132 Latterly, Turkey began to refer to the possibility of liability emerging where there was an exercise of ‘“jurisdiction” and/or control’.133 Thus, even when defending the exercise of jurisdiction, the Turkish authorities freely accepted the Strasbourg Organs’ interpretation that the Convention is extraterritorially applicable. Another state to indicate the acceptance of the Convention’s extraterritorial application was Cyprus. In the inter-state cases against Turkey, these arguments were naturally advanced in order to support Cypriot interests, yet they are useful nonetheless. It was Cypriot representatives who initially used the phrase, later adopted by the Commission, that it was ‘clear from the language, in particular of the French text, and the object of this Article, and from the purpose of the Convention as a whole’ that it had extraterritorial application.134 State acceptance of the Convention’s extraterritorial application has not only taken place in judicial proceedings. In a rare occurrence in June 2004, the Parliamentary Assembly of the Council of Europe (PACE) addressed the issue when it called on its Member States engaged in combat in Iraq to ‘accept the full applicability of the European Convention on Human Rights to the activities of 126 Cyprus v Turkey (1982) 4 EHRR 482. 127 X and Y v Switzerland (1977) 9 DR 57, 63. 128 Cyprus v Turkey (n 126) 586. 129 Although see above regarding British arguments. 130 Cyprus v Turkey App No 8007/77 (EComHR, 10 July 1978) 13 DR 85, 139. 131 It was conceded that ‘Article 1 might also cover areas outside the national territory provided that such areas were under the effective control of the Government concerned’; ibid 148. 132 It was accepted that ‘in the case of exercise of such personal jurisdiction it is necessary in each case to prove the causal link between the action of a State official and the alleged facts. It must be shown that at the time of the incriminated acts the State authorities exercised effective control over the victims, this being a question of fact’; Cyprus v Turkey (1997) 23 EHRR 244 [5]. 133 Isaak and Others v Turkey App No 44587/98 (ECtHR, 28 September 2006); Andreas Manitaras and Others v Turkey App No 54591/00 (ECtHR, 3 June 2008) 22. 134 Cyprus v Turkey (n 126) 586.

Conclusion 139 their forces in Iraq, in so far as those forces exercised effective control over the areas in which they operated’.135 While having limited effect on any litigation, this was a forceful normative statement from the Contracting Parties of where the Convention applied, and a unified understanding from the political arm of the Council of Europe that the Convention had extraterritorial application.136 In recent years, states have almost exclusively sought to adopt the ECtHR’s rules on jurisdiction and to attempt to distinguish its application to the case at hand, or influence its meaning away from an understanding that would bring legal responsibility. Indeed, while potentially malign in its intent, one cannot fail to recognise that the UK’s extraterritorial derogation argument is entirely premised on its recognition that the Convention has extraterritorial application.137 V. CONCLUSION

This chapter has identified two patterns in its consideration of how states have attempted to ‘capture’ the meaning of Article 1 jurisdiction, the first of which refers to how arguments are made.138 While the vast majority of arguments have been premised on orthodox legal and factual considerations, there are arguments of a more questionable nature that have the potential to fall outside the acceptable realm of contentions for the community of Contracting Parties. Although not an exact science, one trend to emerge is the correlation between the propensity for riskier arguments and the perceived implications of the particular case at hand. It is no coincidence that states have been willing to deploy arguments that are more dubious where the stakes are higher, either in terms of military strategy,139 cooperation with international organisations140 or foreign policy.141 This correlation not only suggests that states are more likely to depart from the norm when the potential implications are greater, but also that, with clear exceptions, doing so may be effective. This is particularly the case for the politico-legal category contentions. Indeed, the Banković decision may have been described as one ‘the most egregious’ the Court has ever handed down,142 and Behrami ‘as bad as 135 The resolution also calls on participating states to protect detainees in accordance with both international human rights law and international humanitarian law; PACE Res 1386 (2004) The Council of Europe’s contribution to the settlement of the situation in Iraq [17.2], cited in R (Al-Skeini) (CA) (n 20) [193]. 136 The PACE had already issued a relatively damning indictment of the invasion in PACE Res 1326 (2003) Europe and the War in Iraq [6]–[9]. 137 Wallace (n 110) 195. 138 Fish (n 2) 102. 139 Clearly the liability of 17 Contracting Parties in an international armed conflict created a highstakes situation in Banković. 140 Behrami (n 85). 141 Loizidou (Preliminary Objections) (n 101). 142 Erik Roxstrom, Mark Gibney and Terje Einarsen, ‘The NATO Bombing Case (Bankovic et al. v. Belgium et al.) and the Limits of Western Human Rights Protection’ (2005) 23 Boston University International Law Journal 55, 56.

140 The Contracting Parties it gets’,143 but they were both significant victories for the relevant Contracting Parties after the deployment of such arguments. The second point to note reflects the location of rupture where arguments are advanced. It is a sign of the institutional strength of the ECtHR and the high level of compliance with the Convention from states that Contracting Parties have so willingly accepted the treaty’s extraterritorial application. As will be seen, doing so has created new pathways and avenues for the state to argue in favour of its purposive enterprise, but before considering these, we need to turn to the third and final of our interpretive communities.

143 Marko Milanovic and Tatjana Papic, ‘As Bad as it Gets: The European Court Of Human Rights’ Behrami and Saramati Decision and General International Law’ (2009) 58(2) ICLQ 267.

6 National Courts The Systemisation of ‘Jurisdiction’ I. INTRODUCTION

B

ritish judges entered the Article 1 affray half a century after the Convention was first adopted.1 Nonetheless, their contribution to the development of the meaning of ‘jurisdiction’ since then cannot be underestimated.2 In a wealth of cases emerging from the Iraq conflict, the High Court, the Court of Appeal and the Supreme Court (formerly the House of Lords) played host to a battle over the precise meaning, scope and purpose of the Convention’s application. In their individual speeches, British judges have explored the issue from multiple angles and have gone far beyond the more (necessarily) neutral engagement expressed by the Strasbourg judiciary. In doing so, they have engaged frankly with the underlying principles, jurisprudence and policy issues at stake. As I outlined in Chapter 2, the purposive enterprise of British judges in their interpretation of the Convention has been to critique and clarify the rights so that they can be effectively applied both in court and by the state authorities bound by the Convention. In 2004, when the domestic judiciary began to consider the meaning of ‘jurisdiction’ in cases concerning the Iraq conflict, the Strasbourg jurisprudence was in chaos.3 Pursuant to their common enterprise, British judges therefore resolved to derive clarity. This endeavour was best framed by Brooke LJ, who noted that: ‘It is essential,

1 Immediately before British judges had considered Iraq art 1 jurisdiction relating to the Iraq conflict, they had engaged with the issue in two other cases: R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 527 (CA), which was heard on 29 April 2004; and R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] EWCA Civ 1344 (CA), which was heard on 18 October 2004. 2 Amos notes that: ‘The British courts have also contributed substantially to the law in this area, with the clear analysis and critique of the Strasbourg case law.’ See Merris Amos, ‘The Value of the European Court of Human Rights to the United Kingdom’ (2017) 28(3) European Journal of International Law 765, 776. 3 Rix J considered there to be ‘rich jurisprudence emanating from Strasbourg concerning the jurisdiction of the Convention’; R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust Intervening) [2005] 2 WLR 1401 (HC) [108].

142 National Courts in my judgment, to set rules which are readily intelligible.’4 The result was that during the period of litigation from 2004 to 2010, domestic judges sought to establish clear bases upon which Article 1 jurisdiction could be established. In this chapter, I identify five bases for the exercise of extraterritorial jurisdiction that share as a common theme a compulsion towards this clarity. Collectively they either draw ‘red lines’ around people and places or give rise to clear connections between the state and individual. In contrast to the more ambiguous tests of ‘affect’, ‘authority’ and an undefined expression of ‘control’ which characterised the early Strasbourg jurisprudence, British judges sought to construct a high degree of determinacy. The five jurisdictional premises I identify are not mutually exclusive. Not only is there considerable internal disagreement amongst judges as to whether each ground can be countenanced, but some are only addressed in obiter dicta and were never fully adopted in the litigation. Nonetheless, they each demonstrate the consistent practice of domestic judges to find intelligible solutions and are all united by this common theme of a level of transparency that, in turn, renders a better understanding of where a state’s obligations apply. However, in order to achieve this clarity, domestic judges were faced with making interpretive leaps, back-reading precedent and squaring circles from the Strasbourg jurisprudence. The result is that just like the other two interpretive communities, they resorted to what Fish describes as ‘interpretive moves’ to render meaning.5 While undertaking this distillation process, the judges continued to adhere to the other aspects of their purposive enterprise in robustly critiquing the law. It was not lost on them that their decisions could have profound implications on the UK’s foreign affairs, both in a military and a diplomatic sense. In recognition of this, they probed the law, and in doing so visibly demonstrated that they remain competent arbiters over such a contentious issue. While the result of this was an inherently conservative approach to the extraterritorial question, it was also one that elucidated considerable understanding of the challenges the issue posed. A. In the Shadow of Banković From the outset, domestic judges had to satisfy themselves in terms of how to treat the lurking ‘aberration’ in the Convention’s Article 1 jurisprudence of Banković.6 The existing practice of how domestic courts engaged with the 4 Brooke LJ in R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust and Another Intervening) [2006] 3 WLR 508 (CA) [110]. 5 Stanley Fish, ‘Fish v. Fiss’ (1984) 36(6) Stanford Law Review 1325, 1341–42. 6 Lord Dyson, ‘The Extraterritorial Application of the European Convention on Human Rights: Now on a Firmer Footing, But is it a Sound One?’ (20 January 2014), https://www. judiciary.uk/wp-content/uploads/JCO/Documents/Speeches/lord-dyson-speech-extraterritorialreach-echr-300114.pdf, 5.

Introduction 143 Strasbourg authorities was for them to follow any ‘clear and constant’ lines of jurisprudence.7 Banković was anything but this.8 It was one case set apart from the vast majority of others as providing the most restrictive interpretation. Yet, at the same time, it was also a detailed engagement with the extraterritorial question by the Grand Chamber, the most authoritative judicial composition in the Strasbourg structure. It was this that tipped the balance and led d omestic judges to treat Banković with unrelenting authority.9 In Al-Skeini, the High Court read Banković to be the leading authority to such an extent that it must throw ‘its light and its learning over all the authorities which precede and follow it’.10 It was described as ‘a watershed authority in the light of which the Strasbourg jurisprudence as a whole has to be re-evaluated’.11 Although the Court of Appeal did not attribute such significance, Sedley LJ referring to it instead as ‘a break in a substantial line of decisions’,12 the House of Lords subsequently reinforced the High Court’s treatment of the significance of Banković.13 Lord Brown specifically preferred Banković to Issa, as it was a unanimous judgment by the apex court in the Strasbourg judicial structure.14 Yet he went on to provide a number of less compelling reasons for his preference for Banković. He claimed that it had been fully reasoned; the practice of the Contracting Parties had been considered and ‘comparative case law and the international law background were for the first time all considered in a single judgment’.15 The Banković judgment might have touched on these considerations, but they were wholly underdeveloped. Also unconvincing was Lord Brown’s opinion that the travaux préparatoires and the VCLT had been considered.16 As discussed

7 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 [26]. 8 The domestic courts’ treatment of existing precedent is covered in Tobias Thienel, ‘The ECHR in Iraq: The Judgment of the House of Lords in R (Al-Skeini) v Secretary of State for Defence’ (2008) 6(1) Journal of International Criminal Justice 115, 117–22. 9 Sir Philip Sales has noted that ‘individual judgments of the Grand Chamber of the ECtHR have a broadly similar status [as clear and constant line of jurisprudence], since they are intended to contain carefully considered and authoritative statements of ECHR law’; Philip Sales, ‘Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord Irvine’ [2012] Public Law 253, 256. 10 R (Al-Skeini) (HC) (n 3) [245]. 11 ibid [268]. 12 R (Al-Skeini) (CA) (n 4) [193] (Sedley LJ). Brooke LJ noted that: ‘While I would not be disposed to describe it as a “watershed”, the importance of the Banković decision is that the court returned to what I have called elementary principles of public international law in order to identify the meaning of the word “jurisdiction” in article 1.’ See R (Al-Skeini) (CA) (n 4) [74]. 13 See, for instance, R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust and Others Intervening) [2007] UKHL 26 [91]. 14 Lord Brown indicated that he was ‘according particular weight to Grand Chamber judgments’; ibid [132]. 15 ibid [108]. 16 Both Lawson and Loucaides have demonstrated how the travaux préparatoires could be read in a more expansive way: Rick Lawson, ‘Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights’ in Fons Coomans and Menno T Kamminga (eds),

144 National Courts earlier, only one, basic, interpretation of the preparatory works was utilised in Banković and the Court’s use of the VCLT was highly selective, particularly in ignoring the object and purpose.17 Most questionable was Lord Brown’s assertion that ‘the entire previous case law of the commission and the court’ was considered.18 This is essentially flawed, as only a small handful of cases were considered. Moreover, it leads to the question of whether recognition was fully being taken of the ‘clear and constant jurisprudence’ prior to Banković or whether this was overshadowed by that decision. There is no criticism of the opinion that Banković was the most important case, for at the time this was certainly correct, yet some of these justifications for giving it priority were not entirely compelling.19 Lord Rodger’s reasoning for giving Banković seniority is somewhat more palatable. His argument was that faced with the ‘conflicting elements in the case law, national courts are justified in giving pre-eminence to the decision of the Grand Chamber’.20 This is perhaps a more honest appraisal of the disarray in the contemporary jurisprudence and yet the episode highlights a clear problem for domestic courts in the interpretation of varying threads emerging from Strasbourg. According to Fish, the approach of interpreters to disputed precedents like Banković is determined by the role the relevant authority plays. Rather than being binding or persuasive, Fish contends that precedents are ‘binding if persuasive’.21 By this, he means that precedents are persuasive where they give rise to conditions that the relevant interpreter finds appropriate. The community within the domestic British courts would therefore be receptive to follow any precedent that assisted them in systemising the understanding of jurisdiction. For Fish, precedents are only persuasive if linked appropriately to the ‘issues thought to be in play in the present case’.22 Despite the numerous ambiguities throughout the Banković decision, the judgment assisted domestic judges in creating a framework of understanding for Article 1. It was therefore persuasive to domestic judges as it offered, at least to some extent, a degree of certainty and an ability for the systemisation that they craved.23 The prioritisation of Banković subsequently constituted a ‘roadblock’24 to the previous expansive jurisprudence. The High Court in Al-Skeini specifically stated that following Banković, ‘the broadest statements in the earlier cases Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 112; Loukis Loucaides, ‘Determining the Extra-Territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic Case’ [2006] European Human Rights Law Review 391, 394. 17 Discussed in ch 4, pp 93–98. 18 R (Al-Skeini) (HL) (n 13) [108] (Lord Brown). 19 Thienel states the priority given to Banković ‘can hardly be criticised’; Thienel (n 8) 119. 20 R (Al-Skeini) (HL) (n 13) [68]. 21 Stanley Fish, Winning Arguments: What Works and Doesn’t Work in Politics, the Bedroom, the Courtroom and the Classroom (Harper, 2016) 11. 22 ibid. 23 On Fish and precedent, see further Richard Mullender, ‘There is No Such Thing as a Safe Space’ (2019) 82(3) MLR 549, 552. 24 R (Al-Skeini) (CA) (n 4) [202] (Sedley LJ).

The Five Bases of Jurisdiction 145 could not survive as a driving force for the extension of article 1 jurisdiction’.25 In particular, it was an obstacle to the more progressive decisions like Issa. Rix J had acknowledged the similarities between the two cases, indicating an awareness that Issa may have reversed Banković, but preferring the Grand Chamber authority.26 Here the ‘binding’ nature of Banković took effect. A more recent and more relevant case that directly considered actions taking place in the same country as where the alleged violations were located was considered not to be good law for the purposes of the Convention because it was confronted by a previous Grand Chamber judgment. Along with Issa, other expansive judgments of the Strasbourg bodies were discounted. Neither X and Y v Switzerland nor Drozd and Janousek v France and Spain could be applied as: ‘Neither case raised issues for decision whose resolution casts any useful light on the question.’27 Equally, the Divisional Court held that there was no reason for Öcalan to be treated as an ‘illuminating judgment’.28 Neither it nor Ilaşcu was significant enough to detract from ‘Banković’s case as a watershed and, for the present, definitive authority’.29 Even the very generous later interpretation in Isaak, where jurisdiction was found based on ‘authority/control’ over the victim, was given short shrift by Lord Brown, who stated that there did not ‘appear to have been any relevant argument on the reach of article 1’.30 Using Banković as a basis, domestic judges sought to articulate a clear framework for the elusive exceptional situations where the Convention would apply. While doing so, it was noted that the Grand Chamber had failed to explain ‘what it understands by the expression “jurisdiction” in the context of article 1’31 or sought to ‘identify precisely what those exceptions were’.32 For domestic judges, their task was then to find these exceptions and clearly articulate them. Across this jurisprudence, five possibilities emerged. II. THE FIVE BASES OF JURISDICTION

A. Quasi-territorial Jurisdiction The first construction of a jurisdictional basis was one wholly created by the domestic courts through an eclectic recipe of Strasbourg jurisprudence and 25 R (Al-Skeini) (HC) (n 3) [260] (Rix J). 26 ibid [221]–[222]. 27 R (Al-Skeini) (CA) (n 4) [53] (Brooke LJ). 28 R (Al-Skeini) (HC) (n 3) [195] (Rix J). 29 ibid [261] (Rix J). 30 R (Al-Skeini) (HL) (n 13) [131] (Lord Brown). See also Max Schaefer, ‘Al-Skeini and the Elusive Parameters of Extraterritorial Jurisdiction’ (2011) 5 European Human Rights Law Review 566, 575. 31 R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 [259] (hereinafter Smith (1)) (Lord Collins). 32 R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission Intervening) [2009] 3 WLR 1099 (CA) [20] (Sir Anthony Clarke MR).

146 National Courts rinciples of public international law. It would become the most relevant basis p to be discussed in domestic litigation and one that was adopted by the state in its own arguments. Its origins date back to the High Court decision in Al-Skeini, where Rix J suggested that, on his reading, jurisdiction could extend to: [T]he exercise of state authority in or from a location which has a form of discrete quasi-territorial quality, or where the state agent’s presence in a foreign state is consented to by that state and protected by international law: such as diplomatic or consular premises, or vessels or aircraft registered in the respondent state.33

In later discussions, these locations would also be extended to courts and prisons.34 This reasoning was then used to make the finding that jurisdiction only arose in relation to the one victim who had died within a UK detention facility: Baha Mousa.35 Rix J noted: It seems to us that it is not at all straining the examples of extraterritorial jurisdiction … to hold that a British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities, and containing arrested suspects, falls within even a narrowly limited exception exemplified by embassies, consulates, vessels and aircraft, and in Hess … a prison.36

This is a form of spatial jurisdiction as it concerns an exercise over a particular area, either through a ‘quasi-territorial quality’ or by analogy with the position of an embassy. There is a tremendous allure to such a premise for the exercise of extraterritorial jurisdiction for a community in search of coherent rules. It creates an island of jurisdiction wherein states will theoretically find it much easier to secure the rights of individuals than in the potentially nomadic territory outside those walls. Moreover, it draws a clear distinction between areas where jurisdiction is exercised and where it is not, removing the fluid concept of extraterritoriality which had developed in the early Strasbourg jurisprudence. B. Unpacking Quasi-territorial Jurisdiction Despite the attractive reasons for pursuing this basis, several problems emerge when one begins to probe its foundations. The first is that the factual circumstances on which the Court sought to rely in its creation simply did not exist. The domestic courts had been at pains to establish that, pursuant to Banković, the extraterritorial exercise of jurisdiction was exceptional. Where it arose, it was because of the consent of the forum state, or another permissible rule

33 R

(Al-Skeini) (HC) (n 3) [270] (Rix J). [284] (Rix J). 35 See ch 5, pp 126–127 for details of the circumstances relating to each death. 36 R (Al-Skeini) (HC) (n 3) [287] (Rix J). 34 ibid

The Five Bases of Jurisdiction 147 of international law.37 However, contrary to the Court’s rationale, there was no consent given to UK forces to establish the military base at Darul Dhyafa where Baha Mousa died. The base was established through armed conquest and could not have possibly received the consent of the Iraqi state until months after his death. This flawed logic would be identified in other judgments at national courts.38 The second difficulty upon which this basis is predicated is in relation to its comparison with the status of embassies in international law, which is both necessary and very special. They reflect a reciprocal engagement between states in order to make international diplomacy, and the support of nationals abroad, more effective.39 This can be contrasted starkly with military prisons that lack any special status whatsoever.40 For a state, there is no reciprocal arrangement, or benefit, in allowing another state to set up a prison on its territory. The rationale of allocating a ‘special status’ for a detention facility, by analogy with an embassy, therefore strains this logic a step too far. Moreover, if jurisdiction is to be found on an analogy between an embassy and a detention centre, then what other facilities, which are not normally accorded special status in international law, can also be included? Subsequent domestic cases would suggest that UK military facilities as a whole would be within the state’s Article 1 jurisdiction.41 What about other buildings? If the requirement was for a building, then surely the exception can also be extended by analogy to hospitals? Two of the other victims in Al-Skeini had died at a Czech military hospital in Basra after being shot by British soldiers.42 Were these individuals deemed to be within Czech jurisdiction at the time of their deaths? A third problem to emerge with regard to this exception was raised when other judges considered its normative basis. Their consternation did not emerge in the litigation concerning Iraqi nationals whose rights had been violated by British agents, but instead in relation to the rights of soldiers. The case of Smith (1) concerned the death of a Territorial Army Reservist shortly after his deployment in southern Iraq.43 Private Jason Smith was deployed to Camp 37 See ch 4, pp 91–93. 38 R (on the Application of Faisal Attiyah Nassar Al-Saadoon, Khalaf Hussain Mufdhi) [2008] 3098 EWHC (HC) [40] (Richards LJ); R (on the Application of Faisal Attiyah Nassar Al-Saadoon, Khalaf Hussain Mufdhi) [2009] EWCA Civ 7 (CA) (hereinafter Al-Saadoon (1)) [26] (Laws LJ). 39 See generally Vienna Convention on Diplomatic and Consular Relations 1961 (adopted on 18 April 1961, entered into force 24 April 1964) 500 UNTS 95; Vienna Convention on Consular Relations 1963 (adopted on 24 April 1963, entered into force on 19 March 1967) 596 UNTS 261. 40 Thienel (n 8) 127. 41 See inter alia, Smith (1) (SC) (n 31); Smith (1) (CA) (n 32); R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission Intervening) [2008] 3 WLR 1284 (HC). 42 Waleed Sayay Muzban and Muhammad Salim. See the discussion in ch 5. 43 Smith (1) (SC) (n 31); Smith (1) (CA) (n 32); Smith (1) (HC) (n 41). For related reading on this case, see Lucy Colter and Can Yeginsu, ‘Smith (Oxfordshire Coroner) in the Supreme Court’ (2010) 15(4) Judicial Review 356; Ben Silverstone, ‘R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission Intervening): Case Analysis’ (2010) 6 European Human Rights Law Review 631.

148 National Courts Abu Naji, where by August temperatures were exceeding 50°C. Four days after complaining of being unable to cope with the extreme heat, he was found collapsed inside the old athletics stadium where he was stationed. He was rushed to hospital, but died soon after from heat stroke. His mother argued that the coroner’s inquest into his death had to satisfy the procedural requirements of Article 2, thus giving rise to the allied question of whether Private Smith was within UK jurisdiction at the time of his death.44 At trial, the state conceded that Private Smith was within its jurisdiction at the time of his death on the quasi-territorial basis constructed in Al-Skeini.45 Nonetheless, the court was still asked to consider the wider question of whether Private Smith would have been within UK jurisdiction if he had died off base and members of the judiciary critiqued this jurisdictional premise. At the High Court, Collins J noted that there was a ‘degree of artificiality in saying that a soldier is protected so long as he remains in the base or in the military hospital but he is not protected should he step outside’.46 Clarke MR would reiterate this, considering that: [I]t makes no sense to hold that he is not so protected when in an ambulance or in a truck or in the street or in the desert. There is no sensible reason for not holding that there is a sufficient link between the soldier as victim and the United Kingdom whether he is at a base or not.47

He continued by questioning: ‘[I]f in a hospital, why not in an ambulance? If in a British base or consulate, why not in a British army vehicle? If in a vehicle, why not when the soldier gets out of the vehicle?’48 Clearly for some in the domestic judiciary, a jurisdictional basis constructed on such potentially arbitrary red lines was not appealing. Looking beyond the foundations of the quasi-territorial premise, a final problem arises concerning how this exception was subsequently treated. After emerging in the High Court decision of Al-Skeini, it was adopted by the government at the next available opportunity in the case of Al-Jedda.49 In this case, the applicant was a British national of Iraqi origin who, while visiting his sister in Baghdad in October 2004, was arrested by US troops acting on intelligence provided by their UK counterparts. He was transported by military plane to Basra, where he was held as a ‘security internee’ at the British-administered Sha’aibah Divisional Temporary Detention Facility until 30 December 2007.

44 See generally R (Middleton) v West Somerset Coroner [2004] 2 AC 182 [2]; Osman v UK (2000) 29 EHRR 245 [115]. 45 Smith (1) (HC) (n 41). 46 ibid [9]. 47 Smith (1) (CA) (n 32) [30] (Clarke MR). 48 ibid [35] (Clarke MR). 49 Again demonstrating the incremental acceptance of responsibility in as minimal terms as possible. See generally Andrew Williams, ‘The Iraq Abuse Allegations and the Limits of UK Law’ (2018) 3 Public Law 461, 462–65.

The Five Bases of Jurisdiction 149 It was alleged by the British authorities that the applicant had been interned for this period, as he was believed to have been responsible for preparing terrorist activities in Iraq.50 The applicant argued that his internment was a breach of Article 5(1) of the Convention. The High Court noted that the government had accepted ‘the correctness of the finding in Al-Skeini that a person detained in a British military prison in Iraq falls within the jurisdiction of the United Kingdom under Article 1 ECHR’.51 This acceptance was subsequently reiterated in the Court of Appeal case of Al-Jedda.52 When the Al-Skeini litigation reached the House of Lords, the basis would be reaffirmed and described as ‘an analogy with the extra-territorial exception made for embassies’.53 However, the significance of this public international law analogy would thereafter begin to wane. In the contemporaneous case of Al-Saadoon (1), a further application involving detention in Iraq which will be elaborated upon shortly, Richards LJ would suggest a more factual premise, noting that jurisdiction arose over the claimants ‘on the fact that they were held in British military detention units’.54 This factual re-interpretation would grow when Al-Saadoon (1) reached the Court of Appeal, where it was stated that the earlier courts had ‘held that because the appellants were in the physical custody of the British forces in Iraq’, they fell within the UK’s jurisdiction.55 Later it would be noted that ‘as a person detained in a British military detention centre’, the applicants were within the UK’s Article 1 jurisdiction.56 Thus, the relationship of this basis with embassies was slowly chipped away. The transformation from a basis that was in some way linked to an international law understanding of consent and the use of embassies would be complete in the case of Smith (1). There Anthony Clarke MR noted that the state had conceded ‘that the United Kingdom has some geographical jurisdiction in Iraq but says that it is limited to locations over which it has effective control, such as a United Kingdom military base or hospital’.57 This is how the state would interpret the basis when the Smith (1) case would reach the Supreme Court, noting that soldiers remained within UK jurisdiction when on base as they are ‘within the territory that was under the effective control of the United Kingdom’.58

50 Al-Jedda v UK (2011) 53 EHRR 23 [11]. 51 R (on the Application of Hilal Abdul-Razzaq Ali Al-Jedda) v Secretary of State for Defence [2005] EWHC 1809 [25]. 52 ‘The Secretary of State accepted that for the purposes of the appeal to this court we were bound to consider that as a person detained by British forces in Iraq’; R (on the Application of Al-Jedda) v Secretary of State for Defence [2006] 327 EWCA Civ [13]. 53 R (Al-Skeini) (HL) (n 13) [132] (Lord Brown). 54 R (Al-Saadoon) (1) (HC) (n 38) [60] (Richards LJ). 55 R (on the Application of Faisal Attiyah Nassar Al-Saadoon, Khalaf Hussain Mufdhi) [2008] EWCA Civ 1528 (CA) [5] (Keene LJ). 56 R (Al-Saadoon) (1) (CA) (n 38) [42] (Laws LJ). 57 Smith (1) (CA) (n 32) [14] (Clarke MR). 58 Smith (1) (SC) (n 31) [32].

150 National Courts The quasi-territorial basis therefore migrates from being one premised on a mistaken assumption of consent by the forum state to exercise jurisdiction over a specific territory, to one where the notion of consent is no longer relevant and it is purely a question of effective control. The emergence of this bespoke exception is a clear demonstration of the interpretive community at work. The judges did not have a clear and coherent line of Strasbourg jurisprudence to follow and so, working with existing Strasbourg jurisprudence and principles of international law, they instead sought to create a basis from scratch. That premise provided absolute certainty for future courts and the state alike concerning the Convention’s application and yet, in pursuit of this clarity, the judges pushed too hard. The exception they created not only had a challenging normative premise, but was borne out of the misreading of both facts and principle and was inconsistently followed. These problems would be exacerbated by the further addition of the importance of legal authority. i. Displacing Jurisdiction: Legal Authority or Factual Control? The question that the Al-Saadoon (1) litigation posed was one of whether the presumption of jurisdiction from the quasi-territorial basis could be displaced if the state did not exercise the requisite legal authority to hold individuals in detention. In Al-Saadoon and Mufdhi, the claimants were both high-ranking Ba’ath Party members.59 They were arrested on 30 April 2003 and 21 N ovember 2003 respectively by British forces in Basra. Initially they were detained at an American-run facility before being held at the British-run ‘Divisional Temporary Detention Facility’ and subsequently at the ‘Divisional Internment Facility’ until 31 December 2008. The applicants were first detained as ‘security internees’ given their position as senior Ba’ath party members and the suspicion that they had been orchestrating violence. They subsequently formed the centre of an investigation into the deaths of two British service members during the course of the first week of the invasion of Iraq in 2003. The Special Investigation Branch of the Royal Military Police concluded in October 2004 that there was enough evidence to refer the applicants’ case to the Iraqi courts for trial. The Basra Criminal Court issued arrest warrants for the men and made an order for their detention to continue in UK facilities. In May 2006, the British authorities reclassified them as ‘criminal detainees’. Their cases were subsequently transferred to the Iraqi High Tribunal (IHT), a special court set up by the newly formed Iraqi government to deal with war crimes, but, through

59 Al-Saadoon and Mufdhi v UK (2010) 51 EHRR 9. See Case Comment, ‘Al-Saadoon v United Kingdom (61498/08): Death Penalty – Transfer of Murder Suspects to Jurisdiction of Non-Member State’ (2010) 4 European Human Rights Law Review 424; Matthew Cross and Sarah Williams, ‘Between the Devil and the Deep Blue Sea: Conflicted Thinking in the Al-Saadoon Affair’ (2009) 58(3) ICLQ 689.

The Five Bases of Jurisdiction 151 an agreement between the UK and Iraq, the applicants remained within the UK detention facility. The IHT eventually requested that the applicants be transferred into its custody on 27 December 2007 and made repeated requests until May 2008. In June of that year, the applicants issued judicial review proceedings in the UK, challenging their proposed transfer to the IHT based on the risk that they would suffer the death penalty.60 This resulted in the UK government issuing an undertaking not to transfer the applicants until after the case had been decided by the domestic courts. This would have to take place before the end of 2008, when the mandate for the UK’s presence in Iraq would end.61 In court, the government objected to the exercise of Article 1 jurisdiction, noting that ‘there is in reality no power in the British government’ to hold the individuals any longer and therefore they had to hand them over to the Iraqi authorities.62 For the state, the individuals had already been ‘transferred to the legal jurisdiction of the Iraqi courts … the legal authority being exercised over them is that of Iraq’.63 The question then for the domestic courts was therefore whether the potential absence of legal authority trumped the very clear factual control exercised. Comparing the claimants to the victims of other cases, Richards J in the High Court found that the factual situation overran the legal constraints. He noted that: The very real differences in legal context, important though they are, are not sufficient in the final analysis to distinguish the position of the claimants from that of Mr Mousa in Al-Skeini and of the claimant in Al-Jedda with regard to article 1 jurisdiction.64

Nonetheless, the Court concluded that the proposed transfer would still be lawful.65 Conscious of the impending end of the UN mandate for UK forces in Iraq, it granted leave to appeal and an interim injunction prohibiting the transfer of the applicants to allow the case to be heard at the Court of Appeal. The Court of Appeal’s decision gave much greater prominence to the relevance of legal authority in establishing Article 1 jurisdiction. Laws LJ, delivering the decision, distinguished the legal position of the UK before and after the expiry of the mandate on 31 December 2008. It was noted that before that date, although the UK premises had enjoyed guarantees of inviolability and

60 See generally Soering v UK (1989) 11 EHRR 439; Chahal v UK (1997) 23 EHRR 413. 61 In December 2007, the United Nations Security Council (UNSC) voted to ‘extend the mandate as set forth in that resolution until 31 December 2008’; United Nations Security Council Resolution 1790 (18 December 2007) UN Doc S/RES/1790 (2007) [1]. 62 R (Al-Saadoon) (1) (HC) (n 38) [10]. At the Court of Appeal, the state would argue that it ‘was not exercising, or purporting to exercise, any autonomous power of its own’ that is ‘had no legal power to detain any Iraqi’; R (Al-Saadoon) (1) (CA) (n 38) [33] and [36]. 63 R (Al-Saadoon) (1) (HC) (n 38) [56]; see also R (Al-Saadoon) (CA) (n 38) [31]. 64 R (Al-Saadoon) (1) (HC) (n 38) [82] (Richards J). 65 ibid [203].

152 National Courts immunity, the actual activities of UK forces in Iraq were subject to the consent of the Iraqi authorities.66 Accordingly, the UK was not exercising any power or jurisdiction in relation to the claimants ‘other than as agent for the Iraqi court’.67 Specifically the Court of Appeal held that the UK was not exercising any powers of its own as a sovereign state.68 Laws LJ went on to deem that after 31 December 2008, the UK would have ‘no trace or colour of any power or authority whatever … to maintain any presence in Iraq save only and strictly at the will of the Iraqi authorities’.69 Consequently, it recognised that British forces had no legal power to detain after that date without the express consent of the Iraqi authorities – something that had clearly not been forthcoming when the states were negotiating the basis upon which the UK would remain. In comparison with the High Court’s approach, the absence of legal authority to detain individuals, or for the UK forces to remain in Iraq without Iraqi consent, was critical to the Court of Appeal’s finding that there was no jurisdictional link. For them, jurisdiction required ‘an exercise of sovereign legal authority, not merely de facto power’.70 This qualification was based on a reading of Banković, where Laws LJ had concluded on Article 1 that, inter alia, jurisdiction had to be understood within the broader context of international law.71 The distinction between the High Court and the Court of Appeal approaches on jurisdiction cuts a clear line in the relevance of legal authority in jurisdiction. While Bhuta is correct to cite this specific divergence as a reflection of the ‘state of confusion about the meaning of “jurisdiction” in UK courts’, the prominence of either factual or legal control does lend certainty to decision-makers.72 The High Court, although citing the existence of some legal authority, gave seniority to the factual and physical control exercised over the individuals in a UK detention facility. Conversely, the Court of Appeal cited what it saw as a lack of any legal authority as the reason for the absence of Article 1 jurisdiction. This more conservative interpretation has come in for criticism,73 with Edwards

66 R (Al-Saadoon) (1) (CA) (n 38) [32] (Laws LJ). 67 ibid [33] (Laws LJ). 68 ibid [40] (Laws LJ). 69 ibid [34] (Laws LJ). 70 ibid [37] (Laws LJ). 71 Laws LJ noted that the ‘power must be given by law, since if it were given only by chance or strength its exercise would by no means be harmonious with material norms of international law, but offensive to them; and there would be no principled basis on which the power could be said to be limited, and thus exceptional’. See ibid (Laws LJ). 72 Nehal C Bhuta, ‘Conflicting International Obligations and the Risk of Torture and Unfair Trial: Critical Comments on R (Al-Saadoon and Mufdhi) v Secretary of State for Defence and Al-Saadoon and Mufdhi v United Kingdom’ (2009) 7(5) Journal of International Criminal Justice 1133, 1137. 73 Marko Milanovic identifies the Court’s approach as an attempt to avoid the inevitable norm conflict consideration which would arise were jurisdiction to be established; Marko Milanovic, ‘A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law’ (2009) 14(3) Journal of Conflict & Security Law 459, 473.

The Five Bases of Jurisdiction 153 commenting that the principle adopted by the Court of Appeal does little other than make ‘the world a safer place for hypocrisy’.74 Such criticisms are perhaps appropriate, but the Court of Appeal’s attitude to the issue will certainly have been one more favourable to the state. After all, the implications of the decision were of real practical significance for inter-state relationships between the newly formed Iraqi government and the British forces who were operating in Iraq by invitation.75 C. Spatial Jurisdiction While the emergence of the quasi-territorial basis formed the bedrock of jurisdictional findings in domestic litigation, the critiquing and clarifying impulses of domestic judges provided considerable understanding to a series of other exceptions. The second major basis they acknowledged was the broad spatial premise, whereby a state exercised jurisdiction when in effective control of an area. Having been recognised in Loizidou, affirmed in Cyprus v Turkey (2001), cited as a specific example in Banković and applied further in Ilaşcu, domestic courts recognition of this basis was inevitable. Nonetheless, the way in which they engaged with it – and particularly the reasons given as to why the UK did not exercise spatial jurisdiction – has generated meaning in this area. In particular, this was because the judges sought to distinguish the relationship between occupation and jurisdiction. As a reminder, between 1 May 2003 and 28 June 2004, British troops were occupying powers in Iraq.76 UK forces were given command of Multinational Division South East and had responsibility for the provinces of Al-Basrah, Maysan, Thi Qar and Al-Muthanna.77 As the test for occupation is also one of effective control, it was on this basis that the claimants principally sought to establish UK jurisdiction in the Al-Skeini litigation.78 Across the domestic jurisprudence, this argument proved unpopular, with two significant reasons emerging: the ‘effectiveness’ of control and the legacy of the Banković decision.

74 Susan Edwards, ‘The European Court of Human Rights: Universalist Aspirations of Protection in the Middle of the Edge of Occupation’ (2010) 22 Denning Law Journal 145, 158. 75 So much so that the British government ignored the ECtHR’s interim measures not to transfer the individuals; Al-Saadoon and Mufdhi v UK (2010) 51 EHRR 9. 76 For further discussion, see Robert Kolb, ‘Occupation in Iraq since 2003 and the Powers of the UN Security Council’ (2008) 90(869) International Review of the Red Cross 29. 77 Multinational Division South East comprised of 14,500 coalition troops, including 8,150 UK forces. 78 Article 42 of the Hague Regulations (annexed to the 1907 Hague Convention): ‘Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’ See also R (Al-Saadoon and Others v Secretary of State for Defence) [2015] EWHC 715 (Admin) [47] (Leggatt J).

154 National Courts i. UK Forces in Iraq: ‘Effective Control’ or ‘a Fragile Line against Anarchy’ The first reason given as to why the occupation did not give rise to the exercise of effective control of an area was that the UK forces simply did not have sufficient control over south-east Iraq to be defined as effective.79 Principally this was due to the formidable insurgency that the coalition forces faced during occupation.80 Sedley LJ used the term a ‘fragile line against anarchy’ to describe the UK’s position during occupation as they were the only organised authority in that region during the occupation.81 Lord Rodger echoed this highlighting that the evidence provided by senior British officers indicated that ‘troops faced formidable difficulties due to terrorist activity, the volatile situation and the lack of any effective Iraqi security forces’.82 Later Lord Sumption would describe the ‘exceptional levels of violence’ faced.83 As such, the judges did not believe that the UK was in sufficient control of Basra at the relevant time for the purposes of Article 1 jurisdiction.84 Of particular relevance was the comparable force deployment between the UK in Iraq and the Turkish involvement in northern Cyprus. It was noted that in the northern Cyprus applications, Turkey had more than 30,000 armed forces personnel stationed throughout the entire occupied area with support also from the Turkish Naval Command and Air Force.85 The ratio of Turkish troops to the domestic northern Cypriot population was approximately 1:7. The total population of the area that the UK occupied in Iraq was approximately 2.75 million, with just over 8,000 British troops being deployed there of whom 5,000 had operational responsibilities.86 Thus, the UK force was at a ratio of approximately 1:317 to the domestic population.87 For these reasons, Brooke LJ saw it as being ‘quite impossible’ to suggest that the UK exercised spatial jurisdiction at the relevant time.88

79 R (Al-Skeini) (CA) (n 4) [194] (Sedley LJ). 80 This was evidenced in the Divisional Court hearing of Al-Skeini, where the information provided showed that during the occupation period there were 178 demonstrations against Coalition forces in Multinational Division South East; 1,050 violent attacks including five anti-aircraft attacks, 12 grenade attacks, 101 improvised explosive devices (IEDs), 52 attempted IEDs, 145 mortar attacks, 147 rocket-propelled grenade attacks, 535 shootings and 53 others; 15 British troops killed; 743 Coalition deaths with 5,221 wounded and 395 Iraqi security force deaths. See R (Al-Skeini) (HC) (n 3) [43]. 81 R (Al-Skeini) (CA) (n 4) [194] (Sedley LJ). 82 R (Al-Skeini) (HL) (n 13) [83]. 83 Al-Waheed v Ministry of Defence [2017] UKSC 2 [1] (Lord Sumption). 84 This argument was later made by the UK representatives to the Strasbourg Court: ‘UK forces in Iraq were faced with real practical difficulties in restoring conditions of security and stability so as to enable the Iraqi people freely to determine their political future.’ See Al-Skeini v UK (2011) 53 EHRR 18 [112]. 85 Loizidou v Turkey (Merits) (1997) 23 EHRR 513 [16]. 86 Al-Skeini (ECtHR) (n 84) [112]. 87 R (Al-Skeini) (HC) (n 3) [41]. 88 R (Al-Skeini) (CA) (n 4) [124] (Brooke LJ).

The Five Bases of Jurisdiction 155 A further reason related to this was the temporary nature of the UK occupation. While in other Article 1 cases the occupying state had planned to stay for a prolonged period, in Iraq the UK and the US had made clear statements to the UN that their vision was for the swift return of Iraqi sovereignty to a democratically elected Iraqi leadership.89 The Coalition Forces’ policy from the outset had been to re-establish civilian Iraqi control. In July 2003, the Iraqi Governing Council (IGC) had been established as the principal body of the Iraqi interim administration. By August 2003, preparations were under way for the drafting of a new Iraqi constitution and discussions were under way relating to a handover of power back to an Iraqi administration. The facilitation of these initiatives was not the action of occupying states that intended on staying for a prolonged period. Moreover, it also reflected the speed with which the UK government wanted to end its involvement in the country. The Iraq Inquiry would later conclude that the UK’s ‘most consistent strategic objective in relation to Iraq was to reduce the level of its deployed forces’.90 The findings of the domestic judiciary provided a simple theme. The UK was in occupation of southern Iraq, it was in control of areas, the enemy had largely been defeated, the conflict was over and rebuilding had begun; however, at no stage did the control exercised reach a level to be described as ‘effective’ for the purposes of Article 1 of the Convention. ii. Banković and Effective Control The remaining reasons as to why domestic judges refused to find that the UK exercised effective control of an area in Iraq all relate to the reading of components of the Banković judgment. They again demonstrate a potential willingness on behalf of the judges to be persuaded by the authority of this decision. The first of these was the rejection in Banković by the Grand Chamber of the applicants’ submission that the Convention could be divided and tailored in accordance with the relative power exercised.91 This small section of reasoning formed a major rationale for why the entire spatial exception would not apply and was raised by the state in domestic litigation.92 The contention was that if Convention obligations could not be divided and tailored, as the argument went, then they had to be applied as a ‘full p ackage’. Therefore, in considering whether a state could possibly exercise effective control of an area, the courts asked whether the UK could apply all of the rights within 89 See, for instance, Letter of 8 May 2003, in which the Permanent Representatives of the UK and the US at the UN addressed a joint letter to the President of the UNSC: ‘The United States, the United Kingdom and Coalition partners recognize the urgent need to create an environment in which the Iraqi people may freely determine their own political future.’ 90 Report of a Committee of Privy Councillors, The Report of the Iraq Inquiry (2016) HC 264, Executive Summary 8.16. 91 Banković and Others v Belgium and Others (2007) 44 EHRR SE5 [73]. 92 eg, Smith (1) (HC) (n 41) [18].

156 National Courts the treaty. Lord Brown echoed Lord Rodger’s approach to this question, stating that ‘except where a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory’.93 It is notable that not all judges adopted this reasoning wholeheartedly. In the Court of Appeal, Brooke LJ noted that the real question was ‘whether our armed forces’ effectiveness on the streets in 2003–2004 was so exiguous that, despite their assumption of power as an occupying force, they lacked any real control of what happened from hour to hour in the Basra region’.94 Elsewhere the Court of Appeal envisaged the possibility of a functional distinction where obligations were owed commensurate to the extent of jurisdiction exercised in cases involving personal but not spatial jurisdiction.95 This more nuanced interpretation received some support from other domestic judges and, as will be seen, would reappear later in the Strasbourg Court.96 The second influence of the Banković reasoning related to Convention legal space and, in particular, a reading of this alongside the origins of the vacuum rationale in the northern Cyprus litigation.97 It was observed by the High Court in Al-Skeini that Cyprus had pursued this line of argument in the most recent Cyprus v Turkey (2001) application, where it had stated that ‘to hold otherwise would in the context of northern Cyprus give rise to “a grave lacuna” in the Convention’.98 Analysing this alongside Banković, the High Court followed the understanding that the effective control of an area exception was included in order to prevent a vacuum, or lacuna, from being created within the area of a Contracting Party that had previously enjoyed the benefit of the Convention. For the Court, an extension of this logic was therefore that the spatial basis for jurisdiction could only be applied on the territory of a Contracting Party. Thus, this is how the ambiguous discussion of the Convention legal space would be applied. The Court noted that by providing the vacuum reasoning,

93 R (Al-Skeini) (HL) (n 13) [129]; Wilde is particularly critical of the Court for taking such steps, accusing it of expanding the failed argument into ‘a general doctrine’; Ralph Wilde, ‘R (on the Application of Al-Skeini) v Secretary of State for Defence (Redress Trust Intervening) [2007] UKHL 26’ (2008) 102 American Journal of International Law 628, 632. 94 R (Al-Skeini) (CA) (n 4) [196] (Sedley LJ). Brooke LJ notes how ‘utterly unreal’ the suggestion is that the UK could have secured all rights; R (Al-Skeini) (CA) (n 4) [124] (Brooke LJ). 95 R (Al-Skeini) (CA) (n 4) [197] (Sedley LJ). Lord Brown noted that: ‘Realistically the concept of the indivisibility of the Convention presents no problem in relation to [such] categories of cases … these concern highly specific situations raising only a limited range of Convention rights.’ See R(Al-Skeini) (HL) (n 13) [130] (Lord Brown). 96 Anthony Clarke MR commented that: ‘The rights no doubt have to be tailored to the particular circumstances.’ See Smith (1) (CA) (n 32) [31]. See also Smith (1) (SC) (n 31) [193] (Lord Mance); [328] (Lord Kerr). 97 It was stated by the applicants in the initial Cyprus v Turkey applications that: ‘It followed from article 17 that the Convention did not allow such a vacuum in the protection of its rights and freedoms.’ See Cyprus v Turkey App No 6780/74 and 6950/75 (EComHR, 26 May 1975) 2 DR 125, 133. In Al-Skeini, it was subsequently remarked that: ‘That is, so far as we are aware, the first reference to the “vacuum” argument in this context.’ See R (Al-Skeini) (HC) (n 3) [132]. 98 R (Al-Skeini) (HC) (n 3) [185].

The Five Bases of Jurisdiction 157 the ECtHR had not been disposed ‘to universalist ambitions for the Convention’, but to ‘the “entirely different situation” where otherwise the inhabitants of northern Cyprus would have found themselves excluded from the benefits of the Convention which they had previously enjoyed’.99 As such, the Convention could not apply to Iraq in a spatial sense.100 The House of Lords confirmed this reasoning. In doing so, Lord Rodger addressed the obstacle of Issa, where the ECtHR had suggested that the spatial basis could be applied temporarily to northern Iraq.101 This suggestion clearly undermined the vacuum rationale, given that northern Iraq has never been within the territory of a Contracting Party to the treaty and so has remained outside Convention ‘legal space’. Lord Rodger distinguished the importance of this point by reading that ‘in Issa the European court did not say that it was taking that protection a stage further’.102 Doing so appeared to be insufficient; the Court had to state it was doing so. The third reason provided in the domestic courts for why spatial jurisdiction was not found drew attention back to Article 56. As noted in Chapter 5, states had pointed to the existence of the colonial clause on a number of occasions in an attempt to limit the Convention’s extraterritorial reach.103 In Al-Skeini, the state put a renewed emphasis on this, stating that a reading of Article 56 had formed part of the fundamental reasoning in Banković.104 This was a submission that the High Court appeared to agree with, where particular reliance was put on the fact that under Article 56, the Contracting Party takes account of local requirements in its application of the Convention. On this basis, it noted that it made ‘no sense to impose upon the state party the full rigour of the Convention’s obligations, if that state acquires effective control of a new territory, without any choice on its part and without due regard for local requirements’.105 Lord Brown developed this rationale in the House of Lords Al-Skeini decision, describing it as ‘a remarkable thing’ that the Convention could be applied somewhere outside a territory without taking into account that state’s local requirements,106 while a Contracting Party may not have to secure any Convention rights to somewhere which is regarded as its overseas dependent territory. Notwithstanding that the Strasbourg Organs had already rejected this line of argument,107 the problem with this reasoning lies in its failure to treat the 99 ibid [190]. The Court went on to state: ‘The “effective control of an area” exception is u ltimately founded, however, as we have understood it, not on such marginal problems but on the need to avoid a vacuum within the sphere of the state parties’ own territories.’ See ibid [305]. 100 Brooke LJ in the Court of Appeal would not be so restrictive, stating that he read the Banković statement as leaving ‘open both the ECA and SAA approaches to extraterritorial jurisdiction’; R (Al-Skeini) (CA) (n 4) [80]. 101 Issa and Others v Turkey (2004) 41 EHRR 27 [74]. 102 R (Al-Skeini) (HL) (n 13) [77] (Lord Rodger). 103 See ch 5, pp 122–25. 104 R (Al-Skeini) (HC) (n 3) [148]. 105 ibid [278] (Rix J). 106 R (Al-Skeini) (HL) (n 13) [113]. 107 Cyprus v Turkey (1982) 4 EHRR 482 [9].

158 National Courts extraterritorial application of the Convention as being exceptional and thus requiring exceptional rules. With Article 56, a state can take time to make enquiries and draw up action plans for the Convention’s application to an area, therefore recognising local conditions. Such diligence is required as the declaration is expected to be in force for a prolonged duration. However, with the exceptions to the presumption of territoriality, the Convention’s application arises out of necessity to address specific circumstances. In this, the obligations are temporary and last only as long as the state’s action continues. In sum, domestic judges dissected the jurisprudence on the spatial extension of Article 1 jurisdiction and applied their conclusions to the UK’s operations in Iraq. In so doing, they shed light on some inconsistencies and, however controversial, read new meaning into the previous jurisprudence. Their aim in doing so was to give greater clarity to when this exception would apply and, along with a series of well-founded objections, this forced them into making a number of interpretive leaps and questionable points of analysis. D. Jurisdiction Over Soldiers The third premise upon which jurisdiction was discussed was through the relationship between state and soldier. It is somewhat surprising that this area was even in contention; after all, there is generally little dispute that a state exercises jurisdiction over its soldiers when operating abroad.108 That domestic judges found such difficulty in addressing this particular aspect of the extraterritorial question is an indication of how politically sensitive the issue is. Similar to the cases involving the deaths of Iraqi civilians, the implications of these judgments posed specific challenges around the state’s ability to conduct its foreign affairs without judicial incursion. Yet, more than that, they emerged at a time when the UK’s armed forces already felt threatened by a ‘juridification’ of military life.109 The result was that the cases involving soldiers would become as contentious as those involving civilians and, unsurprisingly, domestic judges generally took a conservative approach, ultimately finding that a soldier would only be within a state’s Article 1 jurisdiction under the quasi-territorial enclave approach.110 Nonetheless, in minority judgments, three distinct lines emerged through which a state could exercise jurisdiction over their soldiers when they were off base. The first was the most straightforward and steadfastly adhered to the normal

108 Peter Rowe, Legal Accountability and Britain’s Wars 2000–2015 (Routledge, 2016) 195. 109 See especially Gerry Rubin, ‘United Kingdom Military Law: Autonomy, Civilianisation and Juridification’ (2008) 65(1) MLR 36; Anthony Forster, ‘British Judicial Engagement and the Juridification of the Armed Forces’ (2012) 88(2) International Affairs 283. 110 Smith (1) (SC) (n 31).

The Five Bases of Jurisdiction 159 understanding of jurisdiction in public international law. Pursuant to this, a state exercises jurisdiction over its soldiers at all times. Collins J noted that: The fact is that those soldiers have to accept that they are subject to the jurisdiction of this country in relation to their activities so that, for example, if they commit offences they are subject to military discipline in the form of court-martial; indeed, generally they are subject to military discipline.111

This would be echoed at the Court of Appeal by Sir Anthony Clarke MR: ‘Soldiers serve abroad as a result of and pursuant to the exercise of United Kingdom jurisdiction over them.’112 The second basis was a more factual assessment whereby, pursuant to Strasbourg authorities on Article 1, the judiciary premised their findings on the exercise of ‘control’. At the Supreme Court, Lord Mance would note that the relationship was ‘seamless’:113 Members of the armed forces serve under the same discipline and conditions wherever they are, and they are required to go wherever they are ordered. The relationship is not territorial, it depends in every context and respect on a reciprocal bond, of authority and control on the one hand and allegiance and obedience on the other.114

Lord Kerr would echo this approach, stating that the ‘control that the UK had over Private Smith was as complete as it is possible in today’s world to be’.115 Despite not being premised solely on the legal connection, this basis was equally as straightforward and could be applied coherently through a simple factual assessment, one that did not depend on the location or status of the soldier. The third and final rationale was made on an analogy with other cases. Lady Hale would make this connection in the case of Gentle. In Gentle, the sons of the two claimants were killed while serving in Iraq.116 Although inquests were to be held into the deaths of the two soldiers, their mothers sought a judicial review of the decision by the Prime Minister and others not to hold a separate independent inquiry that would examine the wider question of whether the UK government had taken reasonable steps to ensure that the invasion was lawful.117 The argument they presented was that Article 2 imposed a duty to protect life and that armed conflict inevitably exposed soldiers to a real risk of death. T herefore, the UK authorities should have ensured that the Iraq invasion was lawful before embarking on it. The question of Article 1 jurisdiction was not central to the Gentle case in any of its hearings and yet Lady Hale

111 Smith (1) (HC) (n 41) [4] (Collins J). 112 Smith (1) (CA) (n 32) [29] (Anthony Clarke MR). 113 Smith (1) (SC) (n 31) [192] (Lord Mance). 114 ibid. 115 ibid [319] (Lord Kerr). Baroness Hale would agree with this; ibid [136] (Baroness Hale). 116 R (on the Application of Gentle and Another) v Prime Minister and Others [2005] 3119 EWHC (HC). 117 ibid [11].

160 National Courts addressed it in her judgment, observing that the position of a soldier could be compared with that of Baha Mousa in Al-Skeini. She noted: If Mr Baha Mousa, detained in a military detention facility in Basra, was within the jurisdiction, then a soldier serving under the command and control of his superiors must also be within the jurisdiction … The United Kingdom is in a better position to secure to him all his Convention rights, modified as their content is by the exigencies of military service, than it is to secure those rights to its detainees.118

This is a more functional assessment of the state of affairs and draws in considerations of whether the state is in a position to protect an individual’s rights – quite a distance from a calculation of whether there is an international legal premise for jurisdiction. Like the quasi-territorial and effective control of area exceptions to the primacy of territorial jurisdiction, the allure of each of these three jurisdictional connections with regard to soldiers lies in their determinacy. Whether by an assessment of the orthodox relationship between soldier and state, the control exercised over them or by analogy with other cases, these findings all create a status-based jurisdiction that cannot be distinguished by varying factual circumstances arising. The premise is therefore heavily rooted in determinate foundations and thus affords legal certainty for the state to do what is necessary to provide the appropriate protections. However, as mentioned above, this was a minority view. For the majority of judges, a soldier would only remain within UK jurisdiction on a quasi-territorial basis. Those who rejected a broader finding of jurisdiction gave a host of reasons to do so, with these concerns being heavily couched on a judicial calculation of whether there was a good policy reason to extend the protection.119 For Lord Phillips in Smith (1), the implications of this were undesirable. He noted that it ‘is not practicable for a state to secure any of the Convention rights and freedoms for troops in active service abroad’.120 Lord Hope would comment that there were no policy grounds to extend protection to members of the armed forces.121 He continued that it was one thing to secure rights within a quasi-territorial area, but: ‘It is quite another to extend that jurisdiction to areas outside premises of that kind over which the armed forces may be operating but over which they do not have exclusive control.’122 Lord Brown gave detailed rationale where, in hyperbolic fashion, he questioned whether: Is it really to be suggested that even outside the area of the Council of Europe Strasbourg will scrutinise a contracting state’s planning, control and execution of military operations to decide whether the state’s own forces have been subjected to excessive

118 ibid

[60]. (1) (SC) (n 31) [308]. 120 ibid [55]. 121 ibid [91]. 122 ibid [92] (Lord Hope). 119 Smith

The Five Bases of Jurisdiction 161 risk (risk, that is, which is disproportionate to the objective sought)? May Strasbourg say that a different strategy or tactic should have been adopted – perhaps the use of airpower or longer-range weaponry to minimise the risk to ground troops notwithstanding that this might lead to higher civilian casualties?123

Even those who favoured establishing jurisdiction were acutely aware that the practical implications would be a point of contention. Collins J would note that the ‘scope will be a relatively narrow one’.124 Similarly, Lord Kerr attempted to allay concerns that the implications of the judgment would be seismic.125 For some, such a contentious finding would have to come from Strasbourg first.126 While clearly illustrating disagreement within the community, for both sides of this argument what we see is a rhetorical performance where they demonstrate that they take into account the implications of their decision-making. In doing so, they reaffirm to law-makers that they can be relied upon to decipher the complex moral and political impulses that human rights invokes. E. Jurisdiction Through Control Two additional bases of jurisdiction need to be mentioned. They come at the end of this analysis as neither proved popular amongst the domestic judiciary during the litigation, and yet both adhere to the high level of clarity required by the domestic community and so continue to demonstrate this pattern of interpretation. The first of these was a simple finding that an individual is within a state’s jurisdiction purely by being within the custody of its agents. Thus, unlike the quasi-territorial basis, this jurisdiction was not dependent on the status of the location, or legal authority to hold the individual, but was in fact dependent on the contemporaneous level of control exercised over the individual in question. We have seen it rehearsed before as a likely explanation for many of the extraterritorial detention cases in the early Commission jurisprudence.127 It was given voice by Brooke LJ in Al-Skeini, where he considered Baha Mousa to be within the UK’s jurisdiction as he had been physically detained by UK forces. For Brooke LJ, Mousa did not come into UK jurisdiction only once the vehicle in which he was transported entered Darul Dhyafa. Instead, he ‘came within the control and authority of the UK from the time he was arrested’.128 Brooke LJ’s rationale for why Baha Mousa would fall into state jurisdiction on this basis and why one of the other victims, Muhammed Salim, did not is a 123 ibid [146] (Lord Hope). 124 Smith (1) (HC) (n 41) [8] (Collins J). 125 Smith (1) (SC) (n 31) [339] (Lord Kerr). 126 See especially Smith (1) (SC) (n 31) [60] (Lord Phillips); [90] (Lord Hope); [147] (Lord Brown); and [307] (Lord Collins); compare [199] (Lord Mance). 127 See the forced return cases discussed in ch 3. 128 R (Al-Skeini) (CA) (n 4) [108] (Brooke LJ).

162 National Courts further example of the pursuit for clarity that motivates this community. Salim had been killed when British soldiers raided his brother-in-law’s house. Brooke briefly considered whether the operation engaged sufficient control over him so as to trigger the exercise of jurisdiction. Yet he departed from this to note that ‘it would in my judgment be thoroughly undesirable for questions about the applicability of the ECHR to turn for their resolution on sophisticated arguments of this kind’.129 Again, certainty was key. The more functional calculation was considered undesirable because it would have required a real-time assessment by British forces storming a house as to whether the Convention applied in their altercations with potentially armed suspected insurgents. This premise not only invokes the requisite clarity, but also addresses some of the more pressing normative concerns about arbitrary red lines being drawn between where jurisdiction commences and ends. Moreover, it has support from the swathe of cases in the Strasbourg jurisprudence where jurisdiction was found based on custody130 and echoes the legal advice given by the Attorney General discussed in chapter 5.131 F. Domestic Decisions The final jurisdictional basis countenanced by domestic courts can be broadly conceived as the existence of a connection where the harm an individual comes to can be directly traced to a decision taken on the domestic territory of the Contracting Party. This moves the question of jurisdiction from the extraterritorial location where injury is felt to the territorial location where the decision that led to the injury is taken. The argument emerged first in the Gentle case, where the applicants contended that ‘the relevant breach was the state’s decision, taken within the UK, to order the soldiers who were in the UK or at British bases to go abroad and engage in war’.132 Their submission was that because the decision to invade Iraq was taken by politicians in Westminster, the violation had commenced within the state’s domestic territory and so jurisdiction arose on a primarily territorial reading.133 A secondary component to this argument was that if it was accepted that territorial decisions could draw a jurisdictional connection, then logically so could those that were taken in an area where it was accepted that extraterritorial jurisdiction was exercised.134

129 R (Al-Skeini) (CA) (n 4) [110] (Brooke LJ). 130 For more discussion of this, see ch 3. 131 For more discussion of this, see ch 5, pp 120–21. 132 R (on the Application of Gentle and Another) v Prime Minister and Others [2006] QB 689 (CA), 694. 133 For a detailed account of the decision-making process in the lead-up to the invasion, see The Report of the Iraq Inquiry (n 90) Executive Summary [294]–[558]. 134 R (Gentle) (CA) (n 132) [81].

Conclusion 163 In practice, this meant that decisions taken in military facilities in Iraq that were subject to the states’ quasi-territorial jurisdiction could also be considered the locus for v iolations emanating from them, but outside of the state’s domestic territory.135 The argument initially received a warm reception. The Court of Appeal in Gentle noted that ‘there seems to us to be much to be said’ for the submission.136 Similarly, in the Court of Appeal hearing of Al-Skeini, Sedley LJ noted that there was ‘force’ in this submission.137 Yet once the argument reached the apex court, it encountered greater scepticism. The state would contend that the claim was too remote.138 Their submission would be echoed by Lord Bingham in the House of Lords, where he stated that even in making the submission, the claimants were highlighting ‘the remoteness of their complaints from’ the true application of the rights.139 When the issue was canvassed again in a second case involving military deaths, Owen J would note that for such expansions in the Convention’s application, it was a decision that Strasbourg needed to take first.140 III. CONCLUSION

The differences between the two judicial interpretive communities tasked with breathing meaning into the provisions of the Convention could not be more profound. In Chapters 3 and 4, I demonstrated how the Strasbourg Organs often took a deeply minimalist strategy in their engagement with the extraterritorial question. While their reasons for doing so were not only based in their position as a supranational adjudicator, but were also a highly successful strategy for maintaining state compliance, the approach often left more questions than answers. For the judiciary in the domestic British courts, the approach has been entirely the opposite. They have strived not only to generate meaning, but also to sculpt that understanding in such a way that it leaves little room for doubt as to where the Convention applies. They have addressed the issue from multiple angles and, in lengthy passages of obiter dicta, they have often provided more answers than questions.141

135 Smith v Ministry of Defence [2011] EWHC 1676 (QB) [27]. 136 R (Gentle) (CA) (n 132) [82]. 137 R (Al-Skeini) (CA) (n 4) [203]. 138 R (Gentle) (HL) (n 116) [65]. 139 ibid [67] (Lord Bingham). 140 Smith v Ministry of Defence [2011] EWHC 1678, QB (HC) [32] and [45]. 141 Given that there remained no dispute regarding jurisdiction, and as the Coroner had agreed to conduct a new art 2-compliant investigation, there was a degree of bewilderment amongst some of the judges that they were essentially providing an advisory opinion. See Smith (1) (SC) (n 31) [129] (Lord Walker); [155] (Lord Brown); [223] (Lord Collins).

164 National Courts This chapter has demonstrated the compulsion that domestic judges have towards legal certainty in relation to where the Convention’s obligations apply. Reflecting on the variance in the five separate bases of jurisdiction recognised by domestic courts, it is apparent that the more determinate an understanding is, the more compelled the judiciary have been to recognise it. Take, for instance, the final two categories considered. Both could have been applied in cases involving alleged violations suffered by individuals in Iraq and provide a degree of certainty, and yet they were both shunned in favour of categories that required not only the judges but also, more importantly, the stakeholders to ask fewer questions. For the soldier, it is preferable to know that they leave human rights obligations at the doors of their base than for them to have to make a detailed assessment in the field of whether they are exercising sufficient authority and control over people and places so as to engage Convention responsibilities, or whether their actions are sufficiently connected to a domestic decision. The more entrenched approaches of spatial jurisdiction and, in particular, the quasi-territorial conception required interpretive leaps to be made by the judiciary. They were premised on factual irregularities, a misreading of principle and a commitment to be persuaded by a specific line of precedent. The result is that, while meaning was generated, it was constructed on a fragile basis, one that was susceptible to challenge when later opportunities emerge. These opportunities would inevitably arise in the Strasbourg considerations of the Iraq War cases and it is to them that I now turn.

7 The European Court of Human Rights Strategic (Re-)alignment I. INTRODUCTION

O

n 7 July 2011, the Grand Chamber judgments of Al-Skeini v UK and Al-Jedda v UK were released.1 Such was the anticipation that awaited these decisions that the HUDOC database, which provides access to the case law of the ECtHR, repeatedly crashed as academics, practitioners, the press and other Court observers all dashed to get a glimpse of Strasbourg’s latest authoritative iteration of Article 1.2 They were not to be disappointed. While opinions vary on the decisions and their reasoning, there can be no doubt that Al-Skeini in particular was the watershed moment that the Court’s observers had been expecting.3 As Lloyd Jones LJ observed five years after the judgment: ‘It is clear that Al-Skeini’s case must now be taken as the starting point for any consideration of the extraterritorial application of the Convention.’4 Here I connect back to Chapter 4 and the profound inconsistency which lay in the Strasbourg jurisprudence by the end of 2010, Chapter 5 and the strategic gamble taken by the UK to ignore Convention obligations in Iraq, and Chapter 6 and the clarifying exercises of domestic British judges engaging with the fallout from the conflict. Of these three communities, it was the Strasbourg Court which faced the greatest difficulty.

1 Al-Skeini v UK (2011) 53 EHRR 18; Al-Jedda v UK (2011) 53 EHRR 23. 2 For what is most likely the earliest analysis of these judgments, see Marko Milanovic, ‘European Court Decides Al-Skeini and Al-Jedda’ (7 July 2011), https://www.ejiltalk.org/ european-court-decides-al-skeini-and-al-jedda. 3 See Cedric Ryngaert, ‘Clarifying the Extraterritorial Application of the European Convention on Human Rights’ (2012) 28 Utrecht Journal of International and European Law 57; Conall Mallory, ‘European Court of Human Rights Al-Skeini and Others v United Kingdom (Application No 55721/07) Judgment of 7 July 2011’ (2012) 61(1) ICLQ 301. 4 R (Al-Saadoon and Others) v Secretary of State for Defence [2016] EWCA Civ 811 [31] (CA) (Lloyd Jones LJ). See also Jaloud v The Netherlands (2015) 60 EHRR 29 [139]; Hassan v UK App No 29750/09 (ECtHR, 16 September 2014) [74]; Chagos Islanders v UK (2013) 56 EHRR SE15 [70]; UN Special Rapporteur on extrajudicial, summary or arbitrary executions, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions’ (13 September 2013) UN Doc A/68/382, 16.

166 The European Court of Human Rights The ECtHR could no longer oscillate wildly in respect of where the Convention applied. A return to moderate determinacy was not merely desired, but essential. When the opportunity to derive clarity arrived in Al-Skeini, the ECtHR seized upon it. In doing so, it attempted something that it had not done previously. For the first time, there was a clear recognition that the decision at Strasbourg had to be, to echo Brooke LJ, ‘readily intelligible’.5 The result is a decision which heavily imitates the practice of the domestic British judges and seeks to systematise jurisdiction; to strategically re-align the previous jurisprudence in a manner that could be applied in future cases. In the UK Supreme Court, Lord Hope described what he saw the Grand Chamber doing in this judgment: The whole structure of the judgment is designed to identify general principles with reference to which the national courts may exercise their own judgment as to whether or not, in a case whose facts are not identical to those which have already been held by Strasbourg to justify such a finding, the state was exercising jurisdiction within the meaning of article 1 extra-territorially.6

The result was a categorisation of extraterritorial jurisdiction – one certainly not free from ambiguity, but with the makings of a skeleton from which domestic courts could, and have, grown a body upon. In this chapter, the Al-Skeini categories of extraterritorial jurisdiction are used to articulate the current framework for where the Convention applies, yet as I have strained not to merely identify the law, I again draw connections between the impulses of the three communities and the emergence of the current meaning of Article 1. In light of this, it should come as little surprise that there is a return to the same interpretive moves being deployed by all three of the interpretive communities, even if they are being applied in a different manner and with varying emphasis. Thus, while the understanding of jurisdiction in Article 1 may change, be clarified and instilled with a deeper meaning, the way in which that meaning has emerged continues to remain remarkably consistent. A. Al-Skeini v UK: Systematising Article 1 Like Banković, Al-Skeini is a ‘statement’ judgment. In these judgments, the Court seeks to state, or re-state, general principles relevant to an area in order to provide greater clarity for others to follow. Like Banković, the authority of the judgment also stems from it being a unanimous decision of the Grand Chamber7 5 R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust and Another Intervening) [2006] 3 WLR 508 (CA) [110]. 6 Smith v Ministry of Defence [2013] UKSC 41 (SC) [46] (Lord Hope). 7 Dothan presciently notes that: ‘One way both national and international courts can project the appearance of legal constraint is to discourage dissent among the judges.’ See Shai Dothan, ‘How International Courts Enhance Their Legitimacy’ (2013) 14 Theoretical Inquiries in Law 455, 470.

Introduction 167 and, notably, one which took the judges an extraordinarily lengthy amount of time to decide.8 The application had been lodged with the Court on 11 December 2007, shortly after the House of Lords had rejected the claimants’ appeals and yet was not delivered until 7 July 2011. There are two possible explanations for this lengthy delay. First, it could reflect the Court’s strong desire to seek a uniform approach to the Convention’s extraterritorial application.9 Given the enduring inconsistency which had permeated the previous decade, the judges may have required a longer period to harmonise their own views internally so as to present a unified approach to both the general principles which they would articulate and the application of those principles to the case at hand. Their objective was not merely coherence, but coherence that would revitalise their legitimacy in dealing with this area of the law. A split decision with several judges arguing against the position of the majority would not have achieved this. A second potential explanation was put forward by Shai Dothan, who contends that the delay in the release of Al-Skeini was strategically intended to limit the negative response to the ultimate finding that the UK was in violation of the Convention in respect of the investigative obligations under Article 2.10 He suggests that an ‘option available for the ECtHR to prevent backlash is to delay its judgments on sensitive issues until the views of the countries and their citizens become more hospitable to the judgment viewed by the ECHR as correct’.11 There is merit in this suggestion. From the outset, the Iraq conflict had been hugely unpopular amongst the British public. This was compressed by widespread accusations that British forces had committed atrocities during their operations. Beyond its questionable initial legal and moral legitimacy, the conflict’s length, cost, the casualties that British forces had endured and the visceral images of the damage it had caused to the Iraqi population all entrenched a deep-seated scepticism for the military action. From 2009, when the bulk of the British Armed Forces left Iraq,12 the nation entered a cathartic period of reflection in relation to the war with the creation of the Iraq Inquiry.13 By 2011, when the Al-Skeini judgment was delivered, the British Labour Party that had taken the UK to war in 2003 had been replaced by a coalition government of the

8 Note that there were two separate, concurring opinions given by Judges Rozakis and Bonello. 9 The judges deliberated in private on 9 and 16 June 2010 and 15 June 2011 before providing their verdict on 7 July 2011. 10 Shai Dothan, ‘Judicial Deference Allows European Consensus to Emerge’ (2018) 18 Chicago Journal of International Law 393, 408. 11 ibid 407. Dothan also suggests that Al-Skeini was an acceptable case because between 2001 and 2011, the ECtHR had increased its reputation; Shai Dothan, Reputation and Judicial Tactics: A Theory of National and International Courts (Cambridge University Press, 2015) 250. 12 A small number remained until 2011 for training purposes; Al-Waheed v Ministry of Defence [2017] UKSC 2 [1] (Lord Sumption). 13 The report would be published on 6 July 2016; Report of a Committee of Privy Councillors, The Report of the Iraq Inquiry (2016) HC 264.

168 The European Court of Human Rights Conservative Party and the Liberal Democrats. Therefore, in a sense, this new executive was dealing with the consequences of the previous regime.14 Three-and-a-half years after the case first arrived at the Strasbourg Court, the Grand Chamber gave its judgment, setting out what it defined as ‘General principles relevant to jurisdiction under article 1 of the Convention’.15 Taking as a starting point the position from Banković that a ‘state’s jurisdictional competence under art. 1 is primarily territorial’,16 the Grand Chamber went on to note that jurisdiction could arise on a personal basis through the exercise of state agent authority and control over an individual, or on a spatial basis through the effective control of an area. Yet the court did not stop there. Within the personal basis in particular, the judgment codified a series of bases of extraterritorial jurisdiction, and this framework has been routinely discussed in subsequent cases.17 This chapter considers the personal and spatial bases separately, before shifting focus to how the Convention has been applied abroad. II. PERSONAL JURISDICTION: ‘STATE AGENT AUTHORITY AND CONTROL’

At the outset, it is necessary to note that the Court made a significant distinction between personal and spatial jurisdiction. Where a state exercises spatial jurisdiction, it is required to fulfil the entire range of Convention obligations in the given area.18 However, for personal jurisdiction, contrary to what the Grand Chamber had stated in Banković and pursuant to its approach in Ilaşcu, and some of the comments in domestic courts,19 the treaty’s obligations could be ‘divided and tailored’.20 Like the Issa judgment, this is a specific instance where the ECtHR demonstrably turned away from its own previous jurisprudence and, in a similar fashion, did so in Al-Skeini with a slight nod to that previous jurisprudence with the language of ‘compare Banković’.21 With this clarification in mind, the Court noted three instances when personal jurisdiction had been found in the previous jurisprudence of the Convention organs:22 first, through the exercise of public powers by a state; second, through

14 The coalition government came into office on 11 May 2010. 15 Al-Skeini (ECtHR) (n 1) [129]. 16 ibid [131]. 17 eg, Jaloud (ECtHR) (n 4) Joint Concurring Opinion of Spielmann and Raimondi [3]; R (K and Others) v Secretary of State for Defence and Another v Secretary of State for Defence [2016] EWCA Civ 1149 [24] (Longmore LJ). 18 Al-Skeini (ECtHR) (n 1) [138]. 19 See the discussion in ch 5, pp 155–57. 20 Al-Skeini (ECtHR) (n 1) [137]. 21 ibid. 22 In his concurring opinion, Judge Rozakis noted that the three mentioned in the judgment were ‘characteristic examples’, which suggests that the list is not a closed one; Al-Skeini (ECtHR) (n 1) Concurring Opinion of Judge Rozakis [OI1].

Personal Jurisdiction: ‘State Agent Authority and Control’ 169 the use of force by state agents; and, third, through the acts of diplomatic and consular agents. Ultimately a fourth instance, the personal link which follows soldiers while on active service, would be added by the UK Supreme Court. A. Public Powers This first basis of extraterritorial jurisdiction was to arise when ‘through the consent, invitation or acquiescence of the Government of that territory, [a Contracting Party] exercises all or some of the public powers normally to be exercised by that Government’.23 Departing from the quasi-territorial conception that had emerged in domestic courts, it was on this reading that the Grand Chamber found the UK to have exercised jurisdiction in Iraq during the relevant period of the Al-Skeini case. This public powers exception should appear familiar, as it is a partial reading which the Grand Chamber in Banković had given to jurisdiction.24 As was detailed in Chapter 4, the Banković judgment was unclear on a number of issues, including whether this ‘public powers’ section contributed to the spatial or personal basis for jurisdiction. However, the consensus in subsequent litigation had been indicative of an understanding that this section indeed formed an integral part of the spatial exception.25 The Grand Chamber in Al-Skeini therefore appears to reposition this central tenet from the spatial basis to within the personal conception of jurisdiction.26 In this, we see a continuation of the interpretive move of reconstruction which was regularly deployed in the Court’s post-Banković jurisprudence.27 For the ECtHR, this practice was pivotal as it provided at least the appearance that the Court was acting consistently.28 In light of this, the (re-)introduction of the public powers exception is clearly compatible with the Court’s previous case law on the issue. The three cases which the Grand Chamber in Al-Skeini used to support the exception all concurrently involve the consent, invitation or a cquiescence of the forum state and the exercise of public powers by the Contracting Party. 23 ibid [135]. 24 It was mentioned in passing, yet not applied in Kalogeropoulou and Others v Greece and Germany App No 59021/00 (ECtHR, 12 December 2002) and Treska v Albania and Italy App No 26937/04 (ECtHR, 29 June 2006). 25 R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust and Another Intervening) [2006] 3 WLR 508 (CA) [193] (Sedley LJ); Al-Saadoon and Mufdhi v UK (App 61498/08) 49 EHRR SE11 [78]. See also Marko Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23(1) European Journal of International Law 121, 128. 26 Lawson remarks of the ‘mystification and admiration for the Court’s inventiveness’ in repositioning its own jurisprudence; Rick Lawson, ‘Really out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict under the ECHR’ in Antoine Buyse (ed), Margins of Conflict: The ECHR and Transitions to and from Armed Conflict (Intersentia, 2011) 70. 27 Ken Kress, ‘Legal Indeterminacy’ (1989) 77 California Law Review 283, 299. 28 As Kairys notes, the deployment of precedent in such a way gives ‘a falsely legitimizing justification for a decision’; David Kairys, ‘Freedom of Speech’ in David Kairys (ed), The Politics of Law: A Progressive Critique (New York: Basic Books, 1998) 164.

170 The European Court of Human Rights Drozd and Janousek involved the exercise of judicial functions in Andorra which was predicated upon a number of historical agreements.29 Gentilhomme and Others involved a similar basis in relation to the education of children in Algeria.30 X and Y involved the exercise of public powers by Swiss agents in Luxembourg, again with the consent by treaty of the forum state.31 These findings are all consistent with previous personal, and not spatial, case law. Indeed, this ground is such a neat fit with much of the previous Article 1 jurisprudence that, had it been articulated clearly and not appeared to form part of the spatial approach in Banković, it is likely that no comment could have been made on it. The necessity of repositioning the public powers exception to the personal ground in Al-Skeini was evidently linked to the distinction in obligations which the Court had outlined in the case. By housing the public powers basis of jurisdiction in the personal branch, the UK would only be required to fulfil rights relevant to the situation. Their obligations could be divided and tailored. Had it remained in the spatial basis, there would have been a requirement for the UK to fulfil all of its Convention obligations. Having been through three rounds of domestic litigation, where British judges forensically explored the extraterritorial question, the parties in Al-Skeini were therefore provided with an additional – now authoritative – layer for the understanding of jurisdiction at the Grand Chamber. The efforts of the domestic judges in British courts were rejected in favour of an exception which had lay dormant, hidden within the spatial basis from the Banković case. The (re-)emergence of the notion of public powers was certainly a surprise and has caused an element of disagreement with regard to whether it is really a personal or a spatial basis.32 i. Applying the Public Powers Exception To date, the public powers exception has not formed the basis of any further Strasbourg decisions, yet in domestic litigation which followed Al-Skeini, the clarifying impulses of British judges have continued to shape its meaning. The result is that this exception requires a three-stage test to meet both the ‘authority’ and ‘control’ required for the personal basis. First, the Contracting Party must have exercised public powers in the forum state. Questions immediately arise in relation to the extent and nature of the public powers that would suffice to form the jurisdictional link. In supporting its conclusion in Al-Skeini, the ECtHR looked to a series of letters and UN Security Council Resolutions which outlined the UK’s position in Iraq during the relevant period. A letter 29 Drozd and Janousek v France and Spain (1992) 14 EHRR 745. 30 Gentilhomme and Others v France App No 48205/99, 48207/99 and 48209/99 (ECtHR, 14 May 2002). 31 X and Y v Switzerland (1977) 9 DR 57. 32 Fiona de Londras and Kanstantsin Dzehtsiarou, Great Debates on the European Convention on Human Rights (Palgrave Macmillan, 2018) 126; Dothan (n 7) 475; Smith and Others v Ministry of Defence [2012] EWCA Civ 1365 [30] (Moses J).

Personal Jurisdiction: ‘State Agent Authority and Control’ 171 sent on 8 May 2003 by the permanent representatives of the UK and the US to the President of the Security Council established that the UK and the US had established the ‘Coalition Provisional Authority to exercise powers of government temporarily’.33 Amongst these powers was ‘the provision of security in Iraq, including the maintenance of civil law and order’34 and that the coalition forces would inter alia ‘provide for security in and for the provisional administration of Iraq, including by … assuming immediate control of Iraqi institutions responsible for military and security matters’.35 In demonstrating these public powers, the Grand Chamber noted that ‘patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations’ all fell within the UK’s exercise of public powers.36 Judge Bonello went further in his concurring opinion, observing that the UK was: [G]iving orders, laying down the law (juris dicere – defining what the binding norm of law is), running the correctional facilities, delivering the mail, establishing and maintaining communications, providing health services, supplying food and water, restraining military contraband and controlling criminality and terrorism as best it could.37

While the first requirement of the exercise of some form of public powers was therefore satisfied in Al-Skeini, its importance has subsequently been called into question.38 A second wave of Al-Saadoon litigation commenced in British courts as a test case for the scope of the duty of the UK to investigate allegations of wrongdoing by British forces in Iraq. This litigation first fell to Leggatt J in the High Court.39 In deliberating the principles underpinning the Grand Chamber’s articulation of the public powers exception in Al-Skeini, he dwelled on the extent to which the exercise of public powers was indeed a necessary component to the basis and concluded that: It would be illogical to treat the Convention as applicable when state agents detain an individual on territory over which they do not exercise control if the state agents purport to act as policemen but not if they simply abduct the individual.40 33 For the full letter, see Al-Skeini (ECtHR) (n 1) [11]. 34 ibid [144]. 35 ibid [11]. 36 ibid [147]. 37 ibid Concurring Opinion of Judge Bonello [O-II35]. 38 The ‘public powers’ test was applied in R (K and Others) v Secretary of State for Defence and Another v Secretary of State for Defence [2016] EWCA Civ 1149, where state agents recruited intelligence officers and translators in Afghanistan they were deemed not to be providing public powers normally exercised by the territorial state. 39 Leggatt was appointed to the bench of the Supreme Court in July 2019. See ‘Lord Reed Appointed Next President of the Supreme Court, Alongside Three New Justices’ (24 July 2019), https://www. supremecourt.uk/news/lord-reed-appointed-next-president-of-supreme-court-alongside-three-newjustices.html. 40 R (Al-Saadoon) and Others v Secretary of State for Defence) [2015] EWHC 715 (Admin) (HC) [100] (Leggatt J).

172 The European Court of Human Rights While the exercise of public powers was therefore a ‘sufficient condition’ for the recognition of public powers, he concluded that it was not a ‘necessary condition’ for the exercise of jurisdiction.41 When the case reached the Court of Appeal, Lloyd Jones agreed with Leggatt’s approach, indicating that to hold otherwise might have suggested that non-public powers in the form of ‘extralegal acts of kidnapping or killing’ could fall outside of a state’s jurisdiction.42 Lloyd Jones clearly attempted to begin a dialogue on this point by stating that: ‘This is an issue on which clarification from the Strasbourg court is urgently required.’43 Thus, from the outset with this exception, difficulties remained with its practical application. This is further demonstrated in the second requirement that the public powers should be exercised through the ‘consent, invitation or acquiescence of the Government of that territory’.44 Like the High Court with its induction of a consent-based quasi-territorial approach, the ECtHR gave a confused reading of Iraqi consent to the exercise of public powers.45 Indeed, as of 1 May 2003, when combat operations ended and occupation began, there was no Iraqi body or authority capable of credibly giving that consent.46 It was not until July 2003 that the Iraqi Governing Council (IGC) was established and the CPA was instructed to ‘consult with it on all matters concerning the temporary governance of Iraq’.47 Although Iraq’s ‘sovereignty and territorial integrity’ were affirmed as early as 22 May 2003,48 it was not until October 2003 that it was recognised by UNSCR 1511 that the IGC embodied the sovereignty of the state during the transitional period.49 Thus, it is difficult to concede that it was the IGC that granted this consent, particularly when we consider that one of the victims in the Al-Skeini case died on 8 May 2003, far in advance of any credible Iraqi body even coming into operation.50 There are two possible identities of who provided the necessary consent. The first is the UN. This argument is very difficult to sustain as the applicable UN Security Council Resolutions did not give permission for the UK or the US to invade and occupy Iraq. The most relevant resolution, UNSCR 1441, warned that Iraq would ‘face serious consequences as a result of its continued violations

41 ibid [100] (Leggatt J). 42 R (Al-Saadoon) (2) (CA) (n 4) [48]–[50] (Lloyd Jones LJ). Lloyd Jones became a justice of the Supreme Court in October 2017. 43 ibid. 44 Al-Skeini (ECtHR) (n 1) [135]. 45 Discussion of the first jurisdictional premise is given in ch 6, pp 146–50. 46 This was observed in domestic litigation. See R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 [188] (Lord Mance). See also R (Al-Saadoon) (2) (CA) (n 4) [23] (Lloyd Jones LJ). 47 Al-Skeini (ECtHR) (n 1) [14]. 48 United Nations Security Council Resolution 1483 (22 May 2003) UN Doc S/RES/1483 (2003). 49 United Nations Security Council Resolution 1511 (16 October 2003) UN Doc S/RES/1511 (2003). 50 For the facts of each case, see ch 5, pp 126–27.

Personal Jurisdiction: ‘State Agent Authority and Control’ 173 of its obligations’.51 Although the UK and the US would go on to argue that this provision made the invasion legal, this has been heavily disputed, both by commentators and other UN members.52 It is also far too tangential to be used as consent or invitation to conduct security operations in Iraq. A second possible source for consent is that it was instead taken from the coalition forces as occupying powers. Under The Hague and Geneva Conventions, the CPA was vested to act as trustee of Iraqi sovereignty until such time as a legitimate sovereign government could be established.53 The announcement of the creation of the CPA was delivered on 8 May 2003 in a letter from the Permanent Representatives of the UK and the US at the UN.54 Accordingly, between 8 May 2003 and 28 June 2004, the CPA was the only body fully capable of giving consent, invitation or acquiescence to the exercise of public powers. Lord Mance explores this in Smith (1), noting that although the CPA gave tacit consent to the occupation of Iraq, ‘that does not necessarily mean that the CPA equates with the state of Iraq for the purposes of consenting to the presence of foreign troops under international law’.55 He went on to state that, conversely, until the establishment of the IGC, there was simply no other body ‘which could claim to represent the state of Iraq, and a correspondingly reduced risk of any objectionable clash of sovereignty’.56 Leggatt would make a similar connection in Al-Saadoon (2).57 For domestic courts, attempting to translate this ambiguity the solution was relatively simple. In Al-Saadoon (2), Leggatt noted that, contrary to what was stated by the Grand Chamber, consent had not been a precondition for jurisdiction. He stated that ‘the consent of the government of the territory concerned is not necessary for the principle to apply’.58 He continued: [I]t is apparent that the test does not depend on whether or not the state is duly authorised to exercise the relevant powers – just as the test of effective control over an area does not depend on whether such control has been seized lawfully or unlawfully.59

51 United Nations Security Council Resolution 1441 (8 November 2002) UN Doc S/RES/1441 (2002) 13. 52 See, for instance, UN News Centre, ‘Lessons of Iraq War Underscore Importance of UN Charter – Annan’ (2004), www.un.org/apps/news/story.asp?NewsID=11953&#.U896QuNdVIF. 53 See generally Danio Campanelli, ‘The Law of Military Occupation Put to the Test of Human Rights Law’ (2008) 90 International Review of the Red Cross 653; Zouhair Al Hassani, ‘International Humanitarian Law and its Implementation in Iraq’ (2008) 90 International Review of the Red Cross 51. 54 Permanent Representative of the UK and US at the United Nations; see Al-Skeini (ECtHR) (n 1) [11]–[14]. 55 Smith (1) (n 46) [186] (Lord Mance). 56 ibid. 57 R (Al-Saadoon) (2) (HC) (n 40) [73] (Leggatt J). 58 ibid [86] (Leggatt J). 59 ibid [100] (Leggatt J).

174 The European Court of Human Rights Lloyd Jones would echo this in the Court of Appeal, referring to it as making ‘excellent sense’.60 Thus, the deconstruction of this approach continues. Not only is the exercise of public powers merely a descriptive aspect of the work undertaken, but such activities do not require the consent of the state where they take place. Clearly, however, where both conditions are fulfilled, it will be easier to find jurisdiction. From the end of June 2004, the British Armed Forces remained in Iraq for a further five years in order to perform security functions at the request of the newly instituted Iraqi government.61 This would therefore stand out as a perfect example of the application of the public powers test, as British involvement was entirely premised on the consent of a legitimate local authority. The third requirement is that there must be some kind of ‘trigger’, a specific interaction, which gives rise to a jurisdictional link. The requirement here is that specific acts must take place to bring individuals within a Contracting Party’s jurisdiction. If no trigger were necessary, then the UK would have been deemed to have exercised jurisdiction over everyone in south-eastern Iraq in the Al-Skeini case. That the six victims in Al-Skeini all came into contact with UK troops while those public powers were being exercised is what distinguished them from the rest of the public. In Al-Skeini, this jurisdictional trigger arose specifically when UK soldiers ‘engaged in security operations in Basra during the period in question, exercised authority and control over individuals killed in the course of such security operations’.62 From the factual circumstances surrounding the deaths in Al-Skeini, it is evident that the trigger connecting the individuals to the state can be transient.63 The victims range from Baha Mousa and Ahmed Ali, who were killed as a direct result of the actions of state agents after being within their custody for at least a brief period, to Hannan Shmailawi, who was killed as a bystander to a gunfight from which it is not even certain that UK military personnel fired the fatal bullet.64 The Al-Saadoon (2) litigation would provide further examples of such ‘shooting cases’ on security operations which would give rise to jurisdiction. They included an officer in the Basra police service being shot dead after failing to stop his car immediately after a spotlight was shone through the front window at a checkpoint, an individual being killed by tank fire when walking to work, and two men being shot and killed during separate house raids.65 The domestic litigation also extended the basis to include policing operations during the period of invasion. Atheer Kareem Khalaf had been filling his car at a petrol 60 R (Al-Saadoon) 2 (CA) (n 4) [44] (Lloyd Jones LJ). 61 Lloyd Jones would note that ‘the circumstance prevailing during the post-occupation period fall squarely within the public powers exception’; ibid [48]–[57] (Lloyd Jones LJ). 62 Al-Skeini (ECtHR) (n 1) [149]. 63 See Mallory (n 3) 307. 64 Al-Skeini (ECtHR) (n 1) [150]. 65 R (Al-Saadoon) (2) (HC) (n 40) [87] (Leggatt J); R (Al-Saadoon) (2) (CA) (n 4) [80], [83], [85] and [87] (Lloyd Jones LJ).

Personal Jurisdiction: ‘State Agent Authority and Control’ 175 station that British forces were policing. He had accidentally hit a soldier with his door when asked to reverse in the station. The soldier responded by shooting him through the window of the car, pulling him from the vehicle onto the forecourt and continuing to hit his head against the pavement until one of his colleagues intervened. In both the High Court and the Court of Appeal, this was deemed to be the exercise of jurisdiction through public powers normally exercised by a country’s own police force.66 More enlightening, perhaps, are the cases where domestic courts have refrained from finding a jurisdictional link on this basis. The judges would not draw a connection where the UK authorities were merely complicit in security operations through the provision of assistance through planning and logistical support of other forces.67 As much is perhaps to be expected, as this would begin to draw in the exercise of Article 1 jurisdiction through the provision of support for other groups, such as non-state actors. It would be likely that domestic judges would wait for Strasbourg to take the first step on that road. Moreover, the connections in these circumstances are much more difficult to grasp for a community steadfastly seeking to impose clarity on the area of law. A second area which domestic courts saw as being too tangential for the triggering of an obligation is where deaths occur as an accident as troops move between operations. A young man was knocked down and killed by a British army vehicle travelling as part of a convoy during the period of occupation. While it was evident that the agents were exercising public powers at the time of the incident, thus satisfying one of the requirements, both the High Court and the Court of Appeal felt that this link was too tenuous to be considered a triggering factor. Leggatt would note that: ‘It cannot be said, however, that British troops were exercising authority and control over individuals simply by driving along a road.’68 The significance of this finding is that it confirms that the exercise of public powers alone will not give rise to a jurisdictional connection – a triggering exercise of control is also necessary. As this analysis continues, it is becoming increasingly apparent that this new ‘clarified’ test for the exercise of jurisdiction is one of categories, sub-categories and essential components. Rather than drawing a binary distinction between grounds, the revitalised structure for Article 1 jurisdiction has instead created a multi-stage test for jurisdiction which, as the above examples demonstrate, culminates in a more functional assessment being undertaken. This pattern continues in the second personal exception recognised by the Grand Chamber in Al-Skeini.

66 R (Al-Saadoon) (2) (HC) (n 40) [81] (Leggatt J); R (Al-Saadoon) (2) (CA) (n 4) [77] (Lloyd Jones LJ). 67 R (Al-Saadoon) (2) (HC) (n 40) [127] (Leggatt J); R (Al-Saadoon) (2) (CA) (n 4) [94] (Lloyd Jones LJ). 68 R (Al-Saadoon) (2) (HC) (n 40) [127]–[130] (Leggatt J); R (Al-Saadoon) (2) (CA) (n 4) [97] (Lloyd Jones LJ).

176 The European Court of Human Rights B. Jurisdiction Through Force This second basis of extraterritorial jurisdiction was, and remains, the most contentious.69 It is the recognition that jurisdiction could arise through some exercise of physical force by state agents. Rather than being compartmentalised into three separate tests or turning on the existence of some form of legal authority, this jurisdictional premise entirely turns on what level of force will give rise to the requisite exercise of control over the individual. Similar to the emergence of the public powers exception, the Grand Chamber’s recognition of this jurisdictional premise was an exercise in both minimalism and judicial reconstruction. We see this first in how the Court’s acknowledgement of this premise was worded in a convoluted manner. It stated: [T]he Court’s case-law demonstrates that, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction.70

Note the provisionality of this language. First, it is justified by recognition of the Court’s previous case law – essentially a statement that the Court here is merely recognising that which has already been decided. Second, the use of the term ‘in certain circumstances’ and ‘may bring the individual’ heavily qualify the basis, therefore providing any later court with a degree of flexibility to depart from this basis in the future. Third, the language of ‘individual thereby brought under the control’ does not clearly articulate when jurisdiction commences. It could be read that an individual is brought within a state’s jurisdiction through the use of force against them, thus leaning towards a cause-and-effect notion. Conversely, it could be read that the threshold for jurisdiction will only be reached once an individual is brought within a state’s control, thus returning the debate to when control arises. All of these moves continue the consistent ECtHR approach of leaving just enough unanswered for a later Strasbourg Court to work around should adherence to their purposive enterprise necessitate a different direction. i. Custody as Jurisdiction On the type of force required to create a jurisdictional link, the Court noted that this ‘principle has been applied where an individual is taken into the custody of State agents abroad’.71 It then proceeded to reconstruct the custody basis through presenting a retrospective gloss of a series of previous cases to support

69 Described 70 Al-Skeini 71 ibid.

as being ‘hotly contested’ in Al-Saadoon (2) (CA) (n 4) [58]. (ECtHR) (n 1) [136].

Personal Jurisdiction: ‘State Agent Authority and Control’ 177 this proposition that custody equates to de facto control.72 The four cases it used were: Öcalan, where the applicant was arrested at Nairobi International Airport before being boarded onto a Turkish aircraft and returned to Turkish territory;73 Al-Saadoon and Mufdhi, where the applicants were arrested and taken into UK custody at a military detention facility in Iraq;74 Medvedyev, where French commandos ‘exercised full and exclusive control over the [ship] and its crew’ from the point of interception until the ship’s arrival in a French port;75 and Issa, where it was alleged that a group of shepherds had been captured by Turkish agents in northern Iraq and executed.76 The deployment of these cases in support of an exercise of jurisdiction through custody presents a somewhat distorted picture of their case facts. When the Al-Saadoon case (discussed in Chapter 6) reached the ECtHR, it held that jurisdiction arose because the UK was exercising control ‘over premises’ within which the applicants were located, ie, the detention facility, and not individuals in question.77 In Medvedyev, the jurisdictional link arose from the de facto control that French commandos exercised over the applicants’ vessel and not the applicants themselves.78 In Issa, the ECtHR had considered whether Turkey could have been exercising spatial jurisdiction on a temporary basis, stating that ‘in the case under consideration what is crucial is whether the Turkish troops exercised effective control over the area where the killings took place’.79 The notion of control through custody had not featured in the case judgment at all.80 Of the four cases that the Grand Chamber relied upon to establish this rule, only Öcalan was followed without being subjectively re-interpreted. The practical implications of the retrospective gloss applied to these cases are relatively limited, as the Court went on to stress that it was not merely the jurisdiction exercised over a location that gave rise to jurisdiction. It stated that rather than control over a building or vehicle: ‘What is decisive in such cases is the exercise of physical power and control over the person in question.’81 What should have followed from this was a wholly coherent basis for extraterritorial jurisdiction, with the recognition that it would arise at any point in time that an individual is within state custody. Yet, the community was not willing to

72 Lupu notes how ‘judges on the ECtHR cite case precedents strategically, choosing citations in order to maximize the likelihood that national courts will comply with their decisions’; Yonatan Lupu, ‘International Judicial Legitimacy: Lessons from National Courts’ (2013) 14 Theoretical Inquiries in Law 437, 449. 73 Öcalan v Turkey (2005) 41 EHRR 45. 74 Al-Saadoon and Mufdhi v UK (2010) 51 EHRR 9. 75 Medvedyev and Others v France (2010) 51 EHRR 39 [67]. 76 Issa and Others v Turkey (2004) 41 EHRR 27. 77 Al-Saadoon (ECtHR) (n 74) [88]. 78 Medvedyev (ECtHR) (n 75) [67]. 79 Issa (ECtHR) (n 76) [74]–[76]. 80 ibid [81]–[82]. 81 Al-Skeini (ECtHR) (n 1) [136]; Karen Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Brill/Martinus Nijhoff, 2013) 245.

178 The European Court of Human Rights sanction such determinacy. In the Al-Jedda decision given by exactly the same constitution of judges in the Grand Chamber and released on the same day as Al-Skeini, the court found jurisdiction on the basis of control exercised over buildings once again: The internment took place within a detention facility in Basrah City, controlled exclusively by British forces, and the applicant was therefore within the authority and control of the United Kingdom throughout.82

Five judges who had sat in both of these cases would again add this layer of complexity in the later case of Hirsi Jamaa and Others v Italy.83 This case concerned the ‘push back’ of a group of Somali and Eritrean nationals who had set off for the Italian coast on board three vessels from Libya. Italian military ships intercepted the vessels in international waters and the applicants were transferred on board, before being returned to Tripoli.84 The applicants alleged that the Italian authorities had violated both Article 3 and Article 4 of Protocol 4 along with Article 13. The Court in Jamaa gave some consideration to the factual test required for this heading. When questioning whether the applicants were within the jurisdiction of the Italian state when aboard a military vessel, the Court, citing Al-Skeini, referred to the need for a ‘full and exclusive control over a prison or a ship’ to give rise to a jurisdictional link.85 This is a problematic approach to take, considering that the Court in Al-Skeini had not specifically referred to the need for ‘full and exclusive control’ at all. The Court in Al-Skeini also did not refer to the need for the control to be exercised over the buildings or vessels; in fact, it stated quite the opposite for this exception.86 One may wonder whether too much emphasis is placed on these very technical inconsistencies in the Court’s judgments.87 It could be contended that if the Court is willing to recognise jurisdiction, then whether it does so on a direct personal custody basis or a control over premises and vehicles basis should not matter. However, these small levels of detail can and are exploited by other communities. Adhering to its purposive enterprise of attempting to avoid any level of constraint or liability, the UK continued throughout Iraq litigation to draw distinctions for when an individual was within this custody. Such m anoeuvres are evident in the case of Hassan.88

82 Al-Jedda (ECtHR) (n 1) [85]. 83 Judges Costa, Tulkens, Casadevall, Spielmann and Mijović. 84 Hirsi Jamaa and Others v Italy (2012) 55 EHRR 21 [9]–[14]. 85 ibid [73]. This was followed in ND and NT v Spain, where a Chamber found jurisdiction on the basis of ‘the continuous and exclusive control’, this time specifically over the individuals in question; ND and NT v Spain (ECtHR, 8675/15 and 8697/15) [54]. 86 Al-Skeini (ECtHR) (n 1) [136]. 87 This is criticism sometimes aimed at commentators and practitioners in common law jurisdictions. See Brenda Hale, ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme? (2012) 1 Human Rights Law Review 65, 68. 88 Hassan (ECtHR) (n 4).

Personal Jurisdiction: ‘State Agent Authority and Control’ 179 This case concerned an individual who was captured by UK forces in April 2003 in Basra and taken to the US administered detention facility known as Camp Bucca.89 The victim was recorded as being released from the detention facility a number of weeks later and yet he never returned home. In early September 2003, his heavily bruised body was discovered hundreds of miles away. His hands had been tied with plastic wire and he had been shot eight times in the chest. The UK had contended that from the moment Hassan had been cleared for release from detention, he left the UK’s jurisdiction.90 Jurisdiction then was entirely coextensive with custody and not with the degree of factual control exercised over the individual. However, after he had been cleared for release, interactions continued between the UK authorities and the victim until he left the bus transporting him from the prison.91 According to British officials, during this period he was not within British jurisdiction. The Grand Chamber in Hassan found differently. Drawing a connection to the custody statement in Al-Skeini, it held that the victim had been within the UK’s jurisdiction not only when he was on base, but also for the entire duration of his time there and until he exited the bus.92 The UK would continue this attempt to distinguish aspects of jurisdictional custody in domestic courts in two further instances in Al-Saadoon (2). In the first, the claimant’s brother had been shot and was receiving medical attention from British forces. He was last seen alive being carried on a stretcher to a British military helicopter.93 In the second, the claimant’s 12-year-old son had been seriously injured when a munition exploded outside of his house. A British patrol took the boy to a military hospital on a British Army base, from which he would never be seen again.94 In both instances, the government argued that it did not exercise jurisdiction as the individuals in question were not technically within its custody.95 Similar to Hassan, the state was arguing that custody depended on both a factual and mental element of control. These individuals had not been arrested – their proximity to British forces was based on the medical assistance being provided. This contention was rejected at both the High Court and the Court of Appeal, with Lloyd Jones stating ‘that the purpose of exercising control is benign cannot affect the question of jurisdiction’.96 To briefly draw these threads together, on this isolated topic of what level of control would give rise to jurisdiction, the three interpretive communities set out to compete for meaning. The Strasbourg community started the competition in a case where it protected individual rights, but left just enough flexibility

89 ibid

[14]–[20]. [79]. 91 ibid. 92 ibid. 93 R (Al-Saadoon) (2) (HC) (n 40) [120]. 94 ibid [120] (Leggatt J). 95 ibid [120]–[121] (Leggatt J). 96 ibid [121] (Leggatt J); R (Al-Saadoon) (2) (CA) (n 4) [91] (Lloyd Jones LJ). 90 ibid

180 The European Court of Human Rights to give confidence to states in later cases should it need to. As a member of the Contracting Party community, the UK seized on this ambiguity and attempted to serve its purposive enterprise of not being found in violation of a Convention right by attempting to distinguish whether jurisdiction was exercised. The issue was then resolved at domestic courts with British judges adhering to their own enterprise of ensuring clarity, and making it clear that a mental element (something incredibly difficult to prove) is not a necessary component to the finding. Each community has competed for meaning and thus an inter-subjective process of meaning generation has taken place. ii. Non-custody as Jurisdiction For many campaigners and litigants before the ECtHR, the most coveted ‘prize’, to use Fish’s words, on Article 1 issues would be to achieve a recognition that jurisdiction can arise without the need for the pre-existing legal or factual relationship between the state and the victim.97 Such a breakthrough would effectively establish a ‘cause-and-effect’ notion of jurisdiction and bring about an element of normative settlement within the system.98 It is perhaps the pursuit of this language in a judgment which led to the convoluted approach to jurisdiction through force articulated by the Grand Chamber in Al-Skeini.99 Ryngaert suggests that the Court’s failure to wholly embrace this model may have been due to fear of setting too low a threshold in light of the procedural delays that the Convention system was then facing.100 In the aftermath of the decision, it was clear that, for at least a cross-section of the judiciary, the answer remained as it was in Banković – that such a jurisdictional premise was not welcome. For instance, in reviewing the exercise of Italian jurisdiction over the individuals in Hirsi Jamaa, the Court reaffirmed that ‘an instantaneous extra-territorial act’ could not give rise to jurisdiction.101 Elsewhere, when the question has arisen, the community has retreated to its previous approach of ambiguity in application. The case of Jaloud v the Netherlands presented the clearest opportunity since Banković and the Cyprus ceasefire cases to make such a finding, and yet the Court took a different path without closing the door altogether.102 This case had involved the shooting of a front-seat passenger of a car travelling towards a checkpoint manned by soldiers under the command of a Dutch Royal Army officer. The car had failed to stop after hitting several barrels set out in the middle of the road to designate the 97 Stanley Fish, There’s No Such Thing as Free Speech and it’s a Good Thing, Too (Oxford University Press, 1994) 102. 98 Da Costa (n 81) 245. 99 Particularly since there were six members of the bench who had intimated acceptance of such in Andreou (Judges Bratza, Garlicki, Bonello, Mijović, Bjorgvinsson and Poalelungi). 100 Ryngaert (n 3) 60. 101 Hirsi Jamaa (ECtHR) (n 84) [73]. 102 Jaloud (ECtHR) (n 4).

Personal Jurisdiction: ‘State Agent Authority and Control’ 181 checkpoint. Shots were subsequently fired by both Dutch military personnel and, possibly, members of the Iraqi Civil Defence Corps. This situation therefore presented a clarifying opportunity for the ECtHR to ultimately settle the question of whether shooting gave rise to a jurisdictional link, and yet the Court continued to avoid engaging with one of the most controversial issues before it. While it found a jurisdictional connection, thus protecting individual rights, it did so without breaking through the non-custody jurisdiction paradigm: The Court is satisfied that the respondent Party exercised its ‘jurisdiction’ within the limits of its SFIR mission and for the purpose of asserting authority and control over persons passing through the checkpoint.103

Rather than the connection to form the jurisdictional link in this case being the relationship between the soldier who fired the weapon and the victim, the nexus for jurisdiction appears to be the checkpoint itself. This gives rise to what Sari has accurately described as a ‘sphere’ of jurisdiction.104 Those within the sphere were subject to it, while those who were not remained outside Dutch obligations for the purposes of Article 1. Jurisdiction is therefore found on a quasi-territorial enterprise. While not exercised over a building or vehicle, it is certainly clear that jurisdiction was exercised over a particular place.105 For this reason, one could be forgiven for suspecting that this basis is actually a form of spatial jurisdiction and thus subject to the higher degree of obligations.106 Yet the Court had indicated that it was instead a new branch to the personal jurisdiction line from Al-Skeini. This is demonstrated through the choice of language deployed in the judgment. The victim was within the Dutch agents’ jurisdiction because he was, consistent with the personal section in Al-Skeini, under their ‘authority and control’.107 This is echoed in a separate opinion from Judge Spielmann and Raimondi, who noted that the Dutch soldiers were ‘asserting authority and control over persons passing through the checkpoint’.108 It also appears that the judges – or at least a cross-section of them – saw the judgment as adding a new category to the personal recognition of jurisdiction. In a joint concurring opinion, seven of them indicated as much in noting that the finding is ‘in line with and logically builds on the Court’s earlier case-law on jurisdiction,

103 ibid [152]. 104 Aurel Sari, ‘Untangling Extra-Territorial Jurisdiction from International Responsibility in Jaloud v Netherlands: Old Problem, New Solutions’ (2014) 53 Military Law & the Law of War Review 287, 301. 105 Compare Lea Raible, ‘The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should Be Read as Game Changers’ (2016) 2 European Human Rights Reports 161, 164. 106 Frederick Cowell suggests that the Court ‘blurred the distinction between the geographic and the personal’; Frederick Cowell, ‘“Why Should Criminals Have Human Rights?” The Underserving Rights Holder and the Case against the Human Rights Act’ in Frederick Cowell (ed), Critically Examining the Case against the 1998 Human Rights Act (Routledge, 2017) 194. 107 Jaloud (ECtHR) (n 4) [152]. 108 ibid, Concurring Opinions of Judge Spielmann and Raimondi [OI6].

182 The European Court of Human Rights most notably Al-Skeini v United Kingdom’.109 A similar approach would be taken in the case of Pisari v Moldova and Russia, which involved the s hooting dead of a driver at a checkpoint on the Dniester River in the early hours of 2012.110 Such ambiguity with regard to fundamental questions on the Convention’s application has unsurprisingly not been tolerated in British courts. The issue of whether shooting someone dead creates a jurisdictional link in and of itself was considered in Al-Saadoon (2) at the High Court and the Court of Appeal, and produced polarised results. At the High Court, Leggatt conceded that the entire extraterritorial question posed considerable challenges, stating that the answer was ‘far from obvious’.111 Yet, once it was recognised that physical control can bring someone within state jurisdiction, he concluded that the answer to whether shooting was an exercise of such control was relatively straightforward: I find it impossible to say that shooting someone dead does not involve the exercise of physical power and control over that person. Using force to kill is indeed the ultimate exercise of physical control over another human being. Nor as it seems to me can a principled system of human rights law draw a distinction between killing an individual after arresting him and simply shooting him without arresting him first.112

Leggatt premised this finding, in part, on inconsistencies in logic in the government’s arguments. The government had conceded that had someone been in such control as to hold a gun to an individual’s head, then that individual would be within a state’s custody and therefore jurisdiction.113 Such an interpretation has resonance with the domestic judges, who, as discussed in Chapter 6, voiced their concerns about drawing arbitrary lines distinguishing between beneficiaries.114 The obvious question is how far this link could extend. If the state concedes that holding a gun to someone’s head is sufficient, then what if the gun is aimed across a room, or into a house, or from an aircraft or naval vessel? Where in this line does the connection become too remote? Therefore, for Leggatt, the deliberation was premised on one of principle. Given the consequence for the victim, he could not see the scope of application turn on such minute details. In the Court of Appeal, Lloyd Jones approached the issue from a different angle. While he echoed Leggatt in lamenting the nature of the decision before the court, referring to it as ‘inherently imprecise’115 and citing difficulties in drawing 109 ibid, Concurring Opinions of Judges Casadevall, Berro-Lefèvre, Šikuta, Hirvelä, López Guerra, Sajó and Silvis [OII-1]. 110 Pisari v Moldova and Russia App No 41239/12 (ECtHR, 21 April 2015). 111 R (Al-Saadoon) (2) (HC) (n 40) [95] (Leggatt J). 112 ibid. 113 ibid [96] (Leggatt J). 114 eg, R (on the Application of Al-Skeini and Others) v Secretary of State for Defence (The Redress Trust and Another Intervening) [2006] 3 WLR 508 [203] (Sedley LJ); R (on the Application of Gentle and Another) v Prime Minister and Others [2006] QB 689 (CA) [82]. 115 R (Al-Saadoon) (2) (CA) (n 4) [70] (Lloyd Jones LJ).

Personal Jurisdiction: ‘State Agent Authority and Control’ 183 sensible distinctions,116 he drew consideration on what the Grand Chamber had not said in Al-Skeini. Notably, he considered that the absence of the Isaak case from discussion was a clear indicator that the court did ‘not intend to extend this category of extraterritorial jurisdiction to cases where the only jurisdictional link was the use of lethal or potentially lethal force’.117 He stated that ‘the intention of the Strasbourg court was to require that there be an element of control of the individual prior to the use of lethal force’.118 The differences in these judicial approaches are worth considering briefly. Both judges arrive at the question with the same urgency to clarify the law and to demonstrate their process of interpretation. Both therefore note the considerable practical challenges to the military that their judgments could bring. Leggatt comments on the ‘reasons of policy for seeking to interpret the territorial scope of the Convention in a way which limits the extent to which it impinges on military operations in the field’119 and Lloyd Jones comments on the ‘particular need for care’ to be taken in the area.120 The judges go in their separate ways, with each seeking to premise their decision on one of the justificatory factors which previous courts had used to analyse the issue. For Leggatt in the High Court, principle was key, while for Lloyd Jones in the Court of Appeal, it was the Strasbourg approach that required consideration. Although both judges characteristically pursued determinacy, their fortunes were mixed. While Leggatt posited a binary distinction, Lloyd Jones left an important question unanswered, in that his test required a secondary discussion of whether control had been exercised before death. For instance, the driver killed on the petrol station forecourt was within the UK’s jurisdiction for Leggatt.121 For Lloyd Jones, however, he would not have been within UK jurisdiction on a jurisdiction through force basis unless after he was shot, the soldier exercised a degree of control over him.122 This would require further investigation. S imilarly, Captain Taleb, who had been driving his car at night and was shot, would have fallen within UK jurisdiction for Leggatt,123 but not for Lloyd Jones, as ‘there was no element of prior control’ exercised over him.124 For individuals killed while soldiers stormed their houses, Lloyd Jones would have remitted such cases for further investigation to assess whether the individuals were within state control.125 It is therefore noteworthy that, while both approaches are relatively clear, the slightly more obscure of the two prevailed. 116 ibid. 117 ibid [68] (Lloyd Jones LJ). 118 ibid [69] (Lloyd Jones LJ). 119 ibid [107] (Leggatt J). 120 R (Al-Saadoon) (2) (CA) (n 4) (Lloyd Jones LJ). 121 R (Al-Saadoon) (2) (HC) (n 40) [117] (Leggatt J). 122 R (Al-Saadoon) (2) (CA) (n 4) [78] (Lloyd Jones LJ). However, it should be noted that he accepted that his approach would lead to ‘fine and sometimes tenuous distinctions’ (at [71]). 123 R (Al-Saadoon) (2) (HC) (n 40) [118] (Leggatt J). 124 R (Al-Saadoon) (2) (CA) (n 4) [81]–[85] (Lloyd Jones LJ). 125 ibid [83]–[85] (Lloyd Jones LJ).

184 The European Court of Human Rights This series of examples demonstrates two issues of particular discomfort with the current area of the law articulated by the more senior authority in the Court of Appeal. First, in situations where a state is not exercising public powers which could give rise to jurisdiction, there is an incentive for soldiers deployed overseas to leave a wounded victim bleeding to death on the ground rather than to offer them assistance. Such assistance would translate to control, which, in turn, would give rise to a human rights obligation. Lloyd Jones’ interpretation of the Strasbourg position could therefore see soldiers allowing wounded individuals to die rather than assisting them, as doing so would possibly hinder their operational responsibilities. Second, Lloyd Jones’ approach to seek further investigations in order to assess jurisdiction is entirely premised on the willingness of military agents to engage with such processes. The practical difficulties in this area are clear to see. Given the challenges in securing evidence and taking statements in a foreign territory, there will be instances where the account of events is entirely predicated on the statements of military agents who would have little incentive to account for the proximity between an individual and their captor. The experience of ‘closing ranks’ in armed forces investigations has already given rise to difficulties with investigations.126 Such challenges will be exacerbated once it becomes clear that the distance between the victim and their attacker will determine the standards of investigative obligation. C. Diplomatic and Consular Agents A third personal basis recognised by the Grand Chamber in Al-Skeini was to retain recognition of the fact that diplomatic and consular agents could bring an individual within their state’s jurisdiction for Article 1 purposes. It said: [I]t is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others.127

UK courts have explored this exercise of extraterritorial jurisdiction in Sandiford, a case concerning a British woman who had been prosecuted in Indonesia on drug smuggling charges and sentenced to death by firing squad.128 She appealed the decision and concurrently instituted judicial review proceedings in London challenging the decision of the Foreign and Commonwealth Office (FCO) not to make arrangements to provide her with funding for a lawyer. One of the strands to her argument was that a failure to fund her legal 126 See Andrew Williams, A Very British Killing: The Death of Baha Mousa (Vintage, 2012) 195–271; Carla Ferstman, Thomas Obel Hansen and Noora Arajärvi, ‘The UK Military in Iraq: Efforts and Prospect for Accountability for International Crimes Allegations?’ (University of Essex, 1 October 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3272347, 8. 127 Al-Skeini (ECtHR) (n 1) [134]. 128 R (on the Application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 581 (CA).

Personal Jurisdiction: ‘State Agent Authority and Control’ 185 representation would be in violation of Article 6 ECHR.129 She alleged that a jurisdictional link had developed as a result of the FCO’s conduct and actions on her behalf. This included, inter alia, visiting her in custody, discussing her case, providing consular assistance, raising welfare concerns, attending court and contacting her family.130 As a result of these actions, she argued that the state had brought her within their ‘authority and control’ for the purposes of Article 1. The Supreme Court went some way towards clarifying the practical application of this principle and, in doing so, light on a fundamental challenge presented in the language of the Al-Skeini judgment. The judges noted that, pursuant to Al-Skeini, the basis was still dependent on ‘acts of diplomatic or consular agents’ abroad where such agents ‘exert authority and control over others’ (emphasis added).131 Specifically as a result of this language and the requirement for control, the judges found that Sandiford could not have been in UK jurisdiction. It was noted that: ‘If one asks, by reference to any common-sense formulation, under whose authority or control she is, the answer is: that of the Indonesian authorities.’132 Like the above discussion on the exercise of control over an individual by military agents, this is a further indication of the importance of the language used by the ECtHR in its judgments. The forensic engagement taken by domestic courts in straining to understand and apply the Strasbourg principles means that words, how they are fashioned and the sentence structure in which they are deployed are pivotal to their application. This is problematic as one has to assume that the Grand Chamber in Al-Skeini did not intend for a similar level of control, requiring a similar factual test to be applied between both diplomatic and consular agents and military operatives.133 After all, diplomatic and consular agents have no legal authority to exercise control over an individual while on the territory of another state. Turning back to the case, it is evident why the Supreme Court sought to clarify the provisions of this Al-Skeini statement in such restrictive terms. A finding of jurisdiction premised solely on the provision of consular services would have been a huge advancement in protection for any national who runs into difficulties abroad – one which the judges were clearly unprepared to make. Its finding was justified with an eye on the policy implications of the judgment: Logically, article 6 would be engaged in respect of every criminal charge, however serious or minor, brought against a British citizen in any overseas country in the world. Article 6 would become a compulsory world-wide legal aid scheme for impecunious British citizens abroad, presumably even for those who had decided to live permanently abroad.134 129 ibid [11]. 130 ibid [34]. 131 R (on the Application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [24]. 132 ibid [32]. 133 This point was made by Mrs Sandiford’s representative at the Supreme Court; ibid [21]. 134 ibid [33].

186 The European Court of Human Rights Ultimately the Court’s discussion on this goes some way towards offering clarity on when and where diplomatic and consular agents will exercise jurisdiction over an individual. The Sandiford case was a useful set of facts to apply to a host of similar situations – from the deprivation of citizenship135 to the provision of mutual legal assistance to states that may execute nationals.136 Nonetheless, it is a further indication that, despite an effort being made to codify jurisdiction, the Al-Skeini judgment left as many questions as answers. D. Soldiers In Al-Skeini, the Grand Chamber made no comment on the question of whether soldiers fell within a state’s jurisdiction for the purposes of Article 1. As Lord Hope would note, this was ‘not surprising, as that was not the question it had to decide’.137 Despite this, in subsequent litigation concerning the rights of British soldiers, the UK Supreme Court felt that the Grand Chamber had presented sufficient movement in the area so as to give rise to a jurisdictional link between the state and members of the armed forces. This finding emerged in a second Smith case (Smith (2)), where the Court unanimously found that soldiers were within British jurisdiction while on overseas deployment. Smith (2) was a strike-out application brought by the Ministry of Defence against a series of claims made both in tort law and under the HRA with respect to governmental failures leading to deaths in southern Iraq. The victims in these cases were all serving military personnel who had died during combat operations. In giving the leading judgment, Lord Hope presented three reasons why Al-Skeini had changed the state of play on Article 1 from the earlier Smith (1) case. First, he noted that it had clearly been a seismic judgment wherein the Grand Chamber had attempted to articulate general principles to be followed by domestic courts.138 Second, the judgment shattered the notion that Banković was the ruling authority on Article 1.139 Comparing that case to Issa, he noted that: ‘It is Banković which can no longer be regarded as authoritative.’140 Finally, he commented that Al-Skeini had resolved the fundamental discrepancy between the dividing and tailoring of Convention obligations, and the full-package

135 eg, ‘Shamima Begum: IS Teenager to Lose UK Citizenship’ (20 February 2019), https://www.bbc. co.uk/news/uk-47299907. 136 eg, R (on the Application of El Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 (Admin). 137 Smith (2) (SC) (n 6) [42] (Lord Hope). 138 ibid [46]. 139 Lord Dyson, ‘The Extraterritorial Application of the European Convention on Human Rights: Now on a Firmer Footing, But is it a Sound One?’ (20 January 2014), https://www. judiciary.uk/wp-content/uploads/JCO/Documents/Speeches/lord-dyson-speech-extraterritorialreach-echr-300114.pdf, 5. 140 Smith (2) (SC) (n 6) [48].

Personal Jurisdiction: ‘State Agent Authority and Control’ 187 argument that had challenged the courts so much in their earlier deliberations. It is apparent that this clarification was essential to the Smith (2) judgment as it simplified the fact that the ‘court need not now concern itself with the question whether the state is in a position to guarantee Convention rights to that individual other than those it is said to have breached’.141 Having negotiated these challenges, Lord Hope found the solution to be relatively straightforward: It is plain, especially when one thinks of the way the armed forces operate, that authority and control is exercised by the state throughout the chain of command from the very top all the way down to men and women operating in the front line. Servicemen and women relinquish almost total control over their lives to the state.142

The rest of the Supreme Court agreed with Lord Hope’s stance on jurisdiction.143 While giving a different response than previously, the finding that soldiers are under a state’s jurisdiction at all times continues to fulfil the purposive enterprise of this community of clarifying and applying the reach of the Convention’s obligations. Given the political sensitivity of this issue, the decision was unsurprisingly heavily justified.144 Lord Hope specifically referred to a recommendation from the PACE on the human rights of members of the armed forces to demonstrate the emerging European consensus on the recognition of ‘soldiers’ rights’.145 Moreover, heavy reliance was put on how the ECtHR would likely decide the case were it to continue to Strasbourg. Speaking about the decision in a later debate in the House of Lords, Lord Hope suggested that the ECtHR’s approach in Al-Skeini had left the Supreme Court with ‘no alternative’ but to recognise the right to life for soldiers on the overseas battlefield.146 Lord Brown went further in noting that the ECtHR ‘dictated’ the judgment.147 This is clearly an exaggeration of the state of affairs, yet it presents an interesting insight into the ways in which domestic judges will rationalise their decision-making. At the time of the judgment, the case of Pritchard v UK, an application involving the death of a soldier in an attack on his vehicle in southern Iraq, was pending before the ECtHR.148 It would be resolved through friendly settlement, and yet the ECtHR would finally have the opportunity to interpret the e xtraterritorial

141 ibid [50]. 142 ibid [52]. 143 Although note that there was considerable disagreement from Lord Mance (with whom Lord Wilson agreed) with respect to whether the Court was in a position to adjudicate the claims. 144 Richard Ekins, Jonathan Morgan and Tom Tugendhat, ‘Clearing the Fog of Law: Saving Our Armed Forces from Judicial Diktat’ (Policy Exchange, 2015) 7; Policy Exchange, ‘The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power’ (Policy Exchange, 2013) 28. 145 PACE Recommendation 1742, Human rights of members of the armed forces (2006); Smith (2) (SC) (n 6) [53]. 146 HL Deb 7 November 2013, vol 749, col 397. 147 HL Deb 7 November 2013, vol 749, col 409. 148 Pritchard v UK App No 1573/11 (ECtHR, 18 March 2014).

188 The European Court of Human Rights application of the Convention to soldiers in the 2019 Chamber judgment of Miller v UK.149 This case concerned an allegation that the UK had breached its investigative obligations in failing to establish a further inquest into the deaths of six Royal Military Police members at the hands of an angry crowd in southern Iraq in the summer of 2003.150 Given that the Supreme Court had unanimously recognised the application of the Convention to soldiers in Smith (2), one could be forgiven for presuming that the ECtHR would have little problem in following suit. The ECtHR could even have entered into dialogue on what it described as a ‘potentially complex’ matter.151 Yet the Court did neither, instead reverting to minimalism once again and making the finding of the case elsewhere and avoiding consideration of the jurisdiction question entirely.152 This was perhaps a surprising approach for the Strasbourg bench to take. Not only did they have a strong political statement from the PACE on the rights of soldiers to draw upon, but they could also justify their decision with recourse to the unanimous findings of the Supreme Court in Smith (2) to indicate the natural consequence that soldiers are within a state’s jurisdiction at all times. Their decision not to do so, and to avoid consideration of the issue entirely, may suggest the contemporaneous concerns from the Strasbourg bench in relation to the ongoing compliance of the UK with the Convention system. III. SPATIAL JURISDICTION

The continuing ambiguities that exist in the personal basis of jurisdiction are not repeated in the spatial exception. Through a process of clarification and elimination by analogy, we can now derive a series of clear rules for this understanding of jurisdiction. That said, despite being clearer, some of the assumptions made and clarifications given are no less contentious across the two variations of the spatial basis. A. Effective Control of an Area The first iteration of the spatial jurisdiction exception remains the effective control of an area basis that had been introduced into the Convention’s discussions in the mid-1990s. The jurisprudence emerging from the Iraq conflict, and since, on this topic has contributed a series of clarifying measures. First, the Court has consistently demonstrated that there is no direct correlation between occupation and effective control of an area. While the test for occupation in

149 Miller

v UK App No 32001/18 (ECtHR, 25 July 2019). also R (on the Application of Long) v Secretary of State for Defence [2015] EWCA Civ 770. 151 Miller (n 149) [78]. 152 ibid. 150 See

Spatial Jurisdiction 189 international humanitarian law is whether a state has effective control of an area, the Strasbourg Court has noted that no presumption can be derived from one to the other. The first case to address the correlation between spatial jurisdiction and occupation involved the deposed Iraqi dictator Saddam Hussein. On 13 December 2003, Hussein was captured by US soldiers during ‘Operation Red Dawn’ near the town of Tikrit. He was subsequently held by US troops at a detention facility. On 30 June 2004, two days after the end of occupation, he was transferred to the Iraqi authorities for trial. He alleged that his arrest, detention, transfer and ongoing trial amounted to a series of breaches, including the right to life and prohibition against torture. Hussein argued that he was within the jurisdiction of all of the Contracting Parties who took part in the Iraq conflict and asserted that jurisdiction under Article 1 arose ‘since the coalition states were, and continued to be, the occupying powers, they were and continued to be responsible for respecting human rights in Iraq’.153 He therefore attempted to draw an explicit overlap between occupation and spatial jurisdiction. Unsurprisingly, given that the applicant had, at all times, been in the custody of the US, the Court rejected this argument and offered no opinion on the occupation correlation. When the contention raised its head again in the Al-Skeini litigation, the Court again remained entirely silent on the relationship between occupation and jurisdiction. It was not until the issue was raised indirectly in the Jaloud judgment that any further comment was made. There, the Court noted that: Turning first to the international-law background, the Court points out that the status of ‘occupying power’ within the meaning of art. 42 of the Hague Regulations, or lack of it, is not per se determinative.154

So, with no inherent connection between occupation and spatial jurisdiction, one is left to wonder whether there is any connection between the two situations at all. The answer is that there clearly is, but this basis upon which obligations would be owed would most likely come under the personal public powers exception rather than that of effective control of an area. Without the need for consent, or orthodox public powers, as the UK courts have interpreted it, it remains hard to see how a state could occupy another state’s territory without exercising some form of public operations – either through security operations or in the civil domain. The relevance of this lies in the fact that it means that an occupying power will not be obligated to fulfil all of the rights within the treaty, but only a cross-section of those which are relevant to the situation at hand. This leads to the second observation, which is related to the division in the standard of obligations owed between the spatial and personal grounds. Given that spatial jurisdiction requires a state to comply with all relevant obligations

153 Hussein 154 Jaloud

v Albania and Others (2006) 42 EHRR SE16, 224. (n 4) [142].

190 The European Court of Human Rights within the Convention (including any relevant protocols), some have seen this standard as the test to apply when such obligations emerge. This point was raised by Lloyd Jones in the UK Court of Appeal, who stated that: [B]efore this exceptional ground of jurisdiction can apply, the contracting state must have a degree of control over the area in question which enables it to secure the full range of Convention rights to its occupants. This is an important limitation on this exception.155

This calculation has echoes of the full-package versus divided and tailored debate which clouded discussions in the domestic courts and was discussed in Chapter 6. While offering assistance in a practical sense, it gives rise to a somewhat circular conceptual query. Can the benefit of the factual situation be used to evaluate whether that situation has emerged? Similar to the discussion on taking an individual into custody, this legal basis lies on a foundation whereby states can avoid liability by taking a lesser action. For instance, if a Contracting Party invades another state, deposes its leader and decimates its governmental structure, should it be allowed to avoid full human rights obligations by only using a more limited military force to take control of the territory? This is a question that will certainly develop as technological advances continue and more precise weaponry becomes available. The third clarifying measure is that throughout the litigation, we now have a better appreciation of what the court takes into account in considering whether a state is in effective control of an area. This was articulated by the Grand Chamber in Al-Skeini, where the Court noted that it would consider the strength of the military presence and extent to which it provides military, economic and political support to a subordinate regime.156 Implicit in the Court’s judgment in Al-Skeini is that the test of factual control relates to the level of control exercised. Thus, in Hassan, the Court clarified, echoing domestic courts, that ‘the United Kingdom was far from being in effective control of the south-eastern area which it occupied’.157 The clarification also continued in relation to what would happen when the state was not acting alone in its military endeavours. The reasons the Court gave for not finding jurisdiction in the Hussein case shed light on this. The Court judgment noted that the applicant: [D]id not address each respondent State’s role and responsibilities or the division of labour/power between them and the US. He did not refer to the fact or extent of the military responsibility of each Division for the zones assigned to them. He did not detail the relevant command structures between the US and non-US forces except to refer to the overall Commander of coalition forces who was at all relevant times a US General.158 155 R (Al-Saadoon) (2) (CA) (n 4) [34] (Lloyd Jones LJ). 156 Al-Skeini (ECtHR) (n 1) [138]. The size of the occupying forces was also a relevant factor in Chigarov v Armenia (2016) 63 EHRR 9 [180]. 157 Hassan (ECtHR) (n 4) [75]. 158 Hussein (ECtHR) (n 153) 225.

Spatial Jurisdiction 191 The questions which emerge here are: what was the state’s role and responsibility, and how much power did it exercise? Who was in control? What was the overall command structure? This bridges into the fourth point about spatial jurisdiction – the relevance of external influence – and this takes us from Iraq back to the far reaches of Eastern Europe. In Catan v Moldova and Russia, parents and children from the Moldovan community in Transdniestria complained that their schools had been forcibly closed by the Russian-backed MRT authorities.159 The court in this case followed its earlier ruling in Ilaşcu to find that Russia exercised jurisdiction over the territory in question due to ‘the continued Russian military and armaments presence in the region’, along with substantial economic support.160 Similarly, in another post-Al-Skeini decision in Chigarov v Armenia, it appeared that the ECtHR found spatial jurisdiction on the basis of a mix of belligerent occupation and support provided to a separate regime. This case concerned the disputed territory of Nagorno-Karabakh in Azerbaijan. The applicants were displaced by an ongoing conflict between Armenian forces, who occupied the area and supported the self-proclaimed Nagorno-Karabakh Republic (NKR), and Azerbaijan forces. On this occasion, the Court discounted the possibility of personal jurisdiction and found Armenia to exercise effective control of an area by virtue of the ongoing military and political support offered to the NKR.161 In both cases, there were similarities to the situation in Iraq, with the UK certainly offering military support to the reformed Iraqi government, as well as political and financial assistance. Therefore, it may appear that the determining factor in cases such as this is the duration of time a state will need to have spent exerting such influence before the jurisdiction it exercises moves from the personal ground to the spatial, and the obligations increase. A fifth and final observation of note relates to how spatial jurisdiction interacts with Article 56. Specifically, the question in the Chagos Islanders case was whether the fact-orientated exceptional spatial exercise of jurisdiction could apply the Convention to a territory where a Contracting Party had deliberately decided against extending its application through the colonial provision of Article 56.162 This application arose as a result of the removal of a domestic population from an island group in the Indian Ocean and the failure to allow the islands’ former inhabitants to effectively challenge their removal.163 The applicants made a series of arguments in respect of advancing jurisdiction, one of which was that the UK continued to exercise effective control over the area.

159 Catan and Others v Russia and Moldova (2013) 57 EHRR 4. 160 ibid [121]. 161 Chigarov (n 156) [186]. 162 Chagos Islanders (n 4) [49]. A similar argument had been advanced in Quark in respect of Protocol 1 of the ECHR: Quark Fishing Ltd v UK (2007) 44 EHRR SE4. 163 Chagos Islanders (n 4) [32]–[35].

192 The European Court of Human Rights The Court gave a brief indication that it would not be persuaded that such an exercise of jurisdiction could be recognised, before moving on to reject the application on other grounds.164 B. Convention ‘Legal Space’ The second basis for the exercise of spatial jurisdiction is a revival and clarification of the notion of ‘Convention legal space’.165 As a free-standing exception within the codification of extraterritorial jurisdiction, it has some similarities to the territorial principle, in that it appears to be a presumption in favour of jurisdiction. It was articulated by the Grand Chamber in Al-Skeini as follows: The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘Convention legal space’.166

The key aspect to this statement, and that which differentiates it from previous discussions, is the connection it draws towards occupation.167 Thus, the concept of legal space is only relevant in respect of occupied areas within the territory of Contracting Parties – not other exercises of state power beyond Europe’s borders.168 The Court continued to note how this legal space basis held no bearing on the other exceptions, making it clear that it was not implying ‘that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States’.169 Therefore, similar to other instances in the passage on general principles discussed above, the Court enters into an exercise of precedential reconstruction.170 It repositions this dubious aspect of its earlier jurisprudence from Banković into a new area and treats it as if this is how the exception should have been understood at all times.171 This distinction was observed by domestic courts in the Al-Saadoon litigation, where the ECHR is described as

164 ibid [75]–[76]. See Barbara Miltner, ‘Revisiting Extraterritoriality after Al-Skeini: The ECHR and its Lessons’ (2012) 33(4) Michigan Journal of International Law 692, 717, who suggests that art 56 is rigidly frozen in time. 165 Banković and Others v Belgium and Others (2007) 44 EHRR SE5 [80]. 166 Al-Skeini (ECtHR) (n 1) [142]. 167 R (Al-Saadoon) (2) (CA) (n 4) [22]. 168 The term ‘space’ was subsequently used in Chagos Islanders (n 4) [65]. 169 Al-Skeini (ECtHR) (n 1) [142]. 170 Milanovic is irked that the Court ‘basically pretended that all of its prior jurisprudence somehow fitted neatly into a bigger picture even though it manifestly did not’; Milanovic (n 25) 127. 171 Banković (ECtHR) (n 165) [78].

Applying the Convention Abroad 193 having ‘reinterpreted what it had said in Bankovic’s case about the Convention “legal space”’.172 The result of this re-interpretation is relatively straightforward. It creates a presumption that the occupation by one Contracting Party over the territory of another will give rise to effective control of an area and the full cohort of obligations which follow. This minor sleight of hand by the Court fundamentally alters, and improves, the moral foundations of this basis. Rather than being wielded as an argument for why the Convention cannot be applied outside of Europe, this justification speaks to why the Convention should be applied within it. An entirely more legitimate concern is therefore raised and can be connected more logically with the Convention’s role as a ‘constitutional instrument of European public order’.173 Yet if we reflect on Chigarov again, where Armenian forces were in belligerent occupation of the Nagorno-Karabakh region, one has to wonder why the legal space basis was not specifically mentioned. The case involved two Contracting Parties to the ECHR and so the occupation created a vacuum within European legal space, and yet the Court made no mention whatsoever of its application. Its absence suggests either an inconsistency in the Court’s approach to similar issues or a blindness to aspects of its own jurisprudence. IV. APPLYING THE CONVENTION ABROAD

For some, the decision in Al-Skeini signalled a significant twist in the A rticle 1 story; an expansion of the likes of which had not been countenanced in any previous jurisprudence.174 Lord Wilson describes the Strasbourg Court as being ‘in a particularly extravagant mood’175 on the day of the judgment, noting that the decisions in it and Al-Jedda ‘stick in the throat’.176 Elsewhere he described it as a ‘substantial extra-territorial enlargement of the concept of jurisdiction’.177 Lloyd Jones referred to it as ‘a potentially massive expansion of the scope of application of the Convention, the full implications of which remain to be worked out’,178 particularly contending that the personal ground gave the Convention’s scope ‘enormous breadth’ in application.179 Ekins and Verdirame have stated that the Grand Chamber produced a ‘novel interpretation of art. 1’180 and criticised the Court for ‘introducing an unstable set of new 172 R (Al-Saadoon) (2) (HC) (n 40) [50] (Leggatt J). 173 Banković (ECtHR) (n 165) [78]. 174 HL Deb 7 November 2013, vol 749, col 416 (Lord Astor). 175 Lord Wilson, ‘Our Human Rights: A Joint Effort?’ (Northwestern University, Chicago, 25 September 2018), https://www.supremecourt.uk/docs/speech-180925.pdf, 8. 176 ibid. 177 Al-Waheed (n 12) [122] (Lord Wilson). 178 R (Al-Saadoon) (2) (CA) (n 4) [33] (Lloyd Jones LJ). 179 ibid [62] (Lloyd Jones LJ). 180 Richard Ekins and Guglielmo Verdirame, ‘Judicial Power and Military Action’ (2016) 132 LQR 206, 208.

194 The European Court of Human Rights rationales concerning exercise of public powers and, especially, effective control over persons’.181 Somewhat surprisingly, they suggest that the Strasbourg judges did ‘so by a side-wind, without ever confronting its earlier judgments or making a consistent, coherent decision’.182 As this chapter has demonstrated, the Al-Skeini judgment and the framework that it has created are certainly not free from problems. The public powers exception has ambiguous foundations; the question of instantaneous jurisdiction remains unanswered; the use of ‘control’ in respect of diplomatic and consular agents has led to confusion and the spatial exception appears to be applied selectively. Yet the criticisms of it as a massive expansion may not be entirely correct. What these critics appear to have done is to confuse what was new about the judgment with its position in the wider jurisprudence on Article 1. A brief perusal of the Court, and particularly the Commission’s previous approach, clearly demonstrate that the Al-Skeini decision continues a preexisting line of jurisprudence and so cannot be considered an outlier.183 Each of the bases of jurisdiction pronounced and identified are not remotely novel. Certainly, the potential repositioning of the public powers exception is a shrewd move, but it formed part of the Strasbourg vocabulary long before July 2011. The other exceptions are all examples of extraterritorial jurisdiction which had been duly recognised in earlier cases and, in the apparent requirement of custody for the jurisdiction through force exception, are even more conservative than some earlier judgments.184 This criticism is therefore largely misplaced and suggests a similar blindness to the ECtHR’s previous jurisprudence that affected the Grand Chamber in Banković. If there is one material evolution in the Al-Skeini case, it was the application of the Convention in a distinctly extraterritorial context. One may question whether this was new – after all, both jurisdiction and a violation had been found in previous cases – yet a brief reflection on the previous jurisprudence indicates how unique this case was in this regard. Collectively, the jurisprudence can be broken down into three categories. First are those cases where the location of the action had little practical impact on the ability of the state to fulfil the individual’s rights. In this category are the custody cases ranging from Reinette, Freda and Altman, through to 181 ibid. 182 ibid. 183 This point is also made by Claire Ovey, who notes that the judgment, ‘while clarifying and elaborating on the principles set out in Banković, did not represent a break with this previous case law’; Clare Ovey, ‘Application of the ECHR during International Armed Conflicts’ in Katja Ziegler, Elizabeth Wicks and Loveday Hodson (eds), The UK and European Human Rights: A Strained Relationship? (Hart Publishing, 2015) 230. Compare this with Lord Sumption, who referred to it as a ‘radically different approach’; Al-Waheed (n 12) [47]. 184 Notably Andreou v Turkey App No 45653/99 (ECtHR, 3 June 2008). See also Inter-American Commission on Human Rights in Armando Alejandre Jr, Carlos Costa, Mario De La Pena and Pablo Morales v Cuba, Report No 86/99, Case 11.589 (29 September 1999), also known as ‘Brothers to the Rescue’.

Applying the Convention Abroad 195 Sanchez Ramirez and Öcalan. In all of these cases, there may have been a complication for the Contracting Party in that the individual was detained abroad, but it remained entirely within the state’s power to prevent their ill-treatment and ensure the protection of their liberty and due process rights. There was nothing distinctively more difficult for the state with the allegation arising abroad. A second category of cases exists where a state is exercising extraterritorial jurisdiction in close proximity to its own territory so as to be in some position to ensure the rights under the ECHR. Within this category are the Transdniestrian cases involving Russian jurisdiction, the applications emerging from a state’s embassy and virtually all of the cases involving Turkey. Whether it be through invasion and occupation of an island less than 200 km to its south, events taking place in or around a ceasefire line in disputed territory, isolated security operations across borders, or the influence exercised over subordinate regimes, there is both a relatively close proximity between the Contracting Party and the location of the alleged violation, and little justification for the state’s obligations to be qualified by virtue of this location. While certainly more difficult than the first category, the state’s ability to ensure the protection of individuals remains not greatly exacerbated by the extraterritorial dimension in these cases. The Iraq litigation introduced a third category, as the conditions there were wholly different from any before it. It involves a state exercising jurisdiction thousands of miles from its home territory and in a hostile environment. Moreover, against this backdrop, the state is being charged to uphold rights which were more progressive emanations and developments of those that had existed at the Convention’s creation. For instance, the non-refoulement obligation in the early Al-Saadoon litigation was patently of a different nature for British forces operating in a foreign country than the majority of cases involving returns from a Contracting Party’s territory.185 Similarly, the litigation concerning the investigative components of the prohibition on torture and the right to life were demonstrably different from a state’s agents undertaking them at home.186 It was this added aspect, the truly extraterritorial nature of the events, which appears to have drawn the ire of some commentators. However, cognisant of this added dimension, courts have sought to clarify the way in which the Convention is applied in the extraterritorial context where jurisdiction is exercised. This is brought about in three ways. The first we have already seen to be the division between the full and complete obligations owed under spatial jurisdiction and dividing and tailoring allowed under personal jurisdiction.187 More than any other adjustment made in the Al-Skeini litigation, this adoption of the argument first canvassed by the applicants in Banković and mused throughout the litigation in domestic courts is a reaction to the purposive enterprise of p rotecting 185 Al-Saadoon (ECtHR) (n 74). 186 eg, Osman v UK (1998) 29 EHRR 245. 187 Lord Wilson suggests that the decision in Al-Skeini brought about the ‘re-examination of the breadth’ of the provisions in the Convention; Al-Waheed (n 12) [121].

196 The European Court of Human Rights state consent with the treaty. It is a signal to Member States that their every action abroad may not give rise to extraterritorial liability.188 A second approach was for courts to expressly note that they would take into account the extraterritorial dimension in considering whether a right had been violated and interpret the rights ‘realistically’.189 This was evident in both Al-Skeini and Jaloud, where the Court acknowledged the difficulty faced by the contracting parties in fulfilling their investigative obligations under Article 2 in a foreign state suffering societal breakdown in the aftermath of a major conflict.190 In Al-Skeini, it was noted that: These practical problems included the breakdown in the civil infrastructure, leading inter alia to shortages of local pathologists and facilities for autopsies; the scope for linguistic and cultural misunderstandings between the occupiers and the local population; and the danger inherent in any activity in Iraq at that time.191

In Jaloud, the Court echoed this, noting that it was prepared to ‘make reasonable allowances for the relatively difficult conditions under which the Netherlands military and investigators had to work’.192 In this latter case, some of the judges remained dissatisfied at the level of scrutiny exercised and so, in a separate opinion,193 further stated their ‘regret that the Grand Chamber also found it appropriate to scrutinise the investigations in Iraq in such a painstaking way that eyebrows may be raised about the role and competence of our Court’.194 They queried whether it was ‘really within the competence of our Court to set the standards for investigations at this detailed level in unstable situations such as these which prevailed in Iraq’.195 A similar concern for the applicable expectations during extraterritorial operations was countenanced in the application of the right to life in Smith (2), where Lord Hope, giving the majority decision, ruled that only certain areas could be open to consideration. Notably, he appeared to exempt scrutiny from activities which were either linked to ‘political judgment and issues of policy’196 or when individuals ‘were actively engaged in direct contact with the enemy’.197 Claimants are therefore left to pursue a ‘middle ground’ in positioning their claim.198 The final qualification made by the Court has been the most significant for military operations. When considering the application of the obligations 188 Miltner (n 164) 697. 189 Al-Skeini (ECtHR) (n 1) [168]. 190 Jaloud (n 4) [226]. 191 Al-Skeini (ECtHR) (n 1) [168]. 192 Jaloud (n 4) [226]. 193 See also Stuart Wallace, The Application of the European Convention on Human Rights to Military Operations (Cambridge University Press, 2019) 63. 194 Jaloud (n 4) Joint Concurring Opinion of Judges Casadevall, Berro-Lefèvre, Šikuta, Hirvelä, López Guerra, Sajó and Silvis [OI5]. 195 ibid [OI7]. 196 Smith (2) (SC) (n 6) [76] (Lord Hope). 197 ibid. 198 ibid [80] (Lord Hope).

Applying the Convention Abroad 197 in Hassan, the judges noted that the Article 5 protections within the Convention could be interpreted in light of the law of armed conflict in order to bring about a more consistent interpretation across international law. It observed that the argument had never previously been put to it by a Contracting Party, but that consistent with the jurisprudence of the ICJ, it was willing to interpret the Convention ‘against the background of the provisions of international humanitarian law’.199 In Hassan, this discussion was centred on the norm conflict between the prohibition of internment under Article 5 ECHR and the taking of prisoners of war and detention of civilians who pose a threat to security which is justified by the Geneva Conventions. The Court qualified this acceptance by noting that the interpretation could only be made in the case of international armed conflict200 and that the Contracting Party had to make it clear in its pleadings to the Court that such an interpretation was being made.201 On this basis, it found there to have been no violation.202 This move was made three years after the Al-Skeini and Al-Jedda decisions, at a point in time when the Court faced a considerable backlash in relation to its application of human rights to foreign armed conflicts.203 The Al-Jedda decision had been particularly concerning for Contracting Parties, as it had essentially outlawed internment in a foreign conflict. It was suggested that the decision gave rise to unrealistic expectations and cast a ‘chilling shadow on the current and future lawfulness of detention operations carried out by ECHR states abroad’.204 The Hassan case brought about a rebalancing and yet, in contrast to the previous major rebalance conducted by the Court in Banković, this rebalance was in relation to how the rights applied rather than whether they applied. The approach has generally been praised by commentators, with Clare Ovey describing the decision as a ‘pragmatic step towards reconciling the two coexisting bodies of treaty law’.205 Domestic courts have built on this approach in two ways. In the case of Al-Waheed, Lord Sumption would find that the Hassan decision had not restricted the international humanitarian law lens through which the Convention could be read to cases emerging from international armed conflicts, but that such a reading-down could also take place in non-international armed conflicts.206 Separately, Leggatt interpreted the Article 2 provision through the lens of international humanitarian law in Al-Saadoon (2), suggesting that there 199 Hassan (n 4) [99]. 200 ibid [103]. 201 ibid [107]. 202 ibid [110]. 203 eg, Tom Tugendhat and Laura Croft, ‘The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power’ (Policy Exchange, 2013), https://policyexchange.org.uk/publication/the-fogof-law-an-introduction-to-the-legal-erosion-of-british-fighting-power, 15. 204 Jelena Pejic, ‘The European Court of Human Rights’ Al-Jedda Judgment: The Oversight of International Humanitarian Law’ (2011) 93 International Review of the Red Cross 837, 851. 205 Clare Ovey, ‘Application of the ECHR during International Armed Conflicts’ in Ziegler, Wicks and Hodson (n 183) 15. 206 Al-Waheed (n 12) [68].

198 The European Court of Human Rights should be no violation of the Convention right so long as a killing is consistent with international humanitarian law provisions.207 Moreover, he echoed Lord Hope in warning that courts should be cognisant of their limitations in respect of decisions taken on a battlefield208 and should afford a ‘wide margin of a ppreciation’ in such cases.209 V. CONCLUSION: TEMPORARY STABILITY

Given the number of outstanding ambiguities in the understanding of the Convention’s extraterritorial application post-Iraq, it may be surprising to suggest that a period of stability has descended on the area.210 To understand why this has occurred, we need to look at the performance of each of the three interpretive communities. Taking the ECtHR first, the Strasbourg judges have managed to orchestrate the progressive expansion of the Convention’s obligations into a truly extraterritorial context. In doing so, the judges have continued to adhere to their central enterprise of protecting the individual from state abuses. Moreover, they have achieved this while retaining states’ ongoing consent to remain party to the Convention and have done so at a point in time when the entire system has faced a considerable backlash.211 Through a series of interpretive moves, most notably the deployment of minimalist judicial manoeuvres and an inventive engagement with precedent, this community has emerged from the legal furore bruised but intact. National judges would review a more mixed report card. The ECtHR clearly disagreed with the domestic decisions in Al-Skeini and Al-Saadoon, and rather timidly failed to endorse the Supreme Court’s approach to soldiers in Miller.212 Nonetheless, domestic judges can take a great degree of satisfaction in making a discernible imprint on the Strasbourg position.213 The notion that the rights could be tailored to the situation with regard to the personal exception was mooted domestically before being adopted at Strasbourg, as was the rationale with regard to how ‘effective’ effective control needs to be. However, in addition,

207 R (Al-Saadoon) (2) (HC) (n 40) [111] (Leggatt J). 208 R (Al-Saadoon) (2) (n 4) [111] (Leggatt J). 209 R (Al-Saadoon) (2) (HC) (n 40) [111] (Leggatt J). 210 Ovey (n 183); Milanovic (n 25) 139. 211 See generally: Patricia Popelier, Sarah Lambrecht and Koen Lemmens (eds), Criticism of the European Court of Human Rights (Intersentia, 2016). 212 Brice Dickson aptly notes how: ‘To an extent it does not matter very much that decisions of the Supreme Court are later overturned by the European Court, so long as the Supreme Court can then accommodate the European Court’s approach when it later has occasion to look at the same area of law again.’ See Brice Dickson, Human Rights and the United Kingdom Supreme Court (Oxford University Press, 2013) 374. 213 Merris Amos, ‘The Value of the European Court of Human Rights to the United Kingdom’ (2017) 28(3) European Journal of International Law 765, 775.

Conclusion: Temporary Stability 199 domestic judges may take solace in the fact that it is their keen approach to systemisation which their Strasbourg counterparts followed in Al-Skeini and have sought to build upon since. One could be mistaken for thinking that states fared the worst during this period. The Dutch lost in Jaloud and the British in Al-Skeini, Al-Jedda and Al-Saadoon, before suffering a further significant domestic defeat in Smith (2). Yet the position faced by this community at the outset had been perilous. Strasbourg had to correct its previous approach in relation to Article 1 and, given that more generous approaches had been provided in some earlier decisions, it could have been an awful lot worse for the Contracting Parties.214 In the end, they emerged clasping the prize that jurisdiction could not arise instantaneously, that nationals abroad had to be under their ‘control’ to engage the Convention, that military occupation would not automatically give rise to spatial jurisdiction and that, even when jurisdiction did arise, an increasingly realistic appraisal would be taken by the Court in relation to whether breaches had occurred. Moreover, states would benefit from the remaining high degree of ambiguity around some issues215 and the increasingly viable possibility that they could derogate from the Convention extraterritorially.216 With some semblance of satisfaction amongst all interpretive communities and a viable structure upon which to continue to build the Convention’s future extraterritorial application, it is likely that the era of stability will endure. Yet one has to wonder whether this is as good as it gets. A cycle will certainly continue. The remaining ambiguities will mean that states will continue to operate abroad on the basis of their particular interpretations of jurisdiction, occasionally exploiting inconsistencies and ambiguities. Individuals will inevitably suffer and then, when litigation is brought, states may find that the ECtHR has moved to provide an incrementally more generous understanding of jurisdiction.217 In particular, new limbs and adaptations may emerge on the personal basis, and the cycle will start again.218 While the centre may hold, the saga will continue and the Court’s reputation on the issue will remain fragile.219 214 eg, Andreou (n 184); Isaak and Others v Turkey App No 44587/98 (ECtHR, 28 September 2006); and Solomou and Others v Turkey App No 36832/97 (ECtHR, 24 June 2008). 215 So much so that the UK continued to argue that the ECHR obligations did not apply to Afghanistan; Council of Europe, Committee of Ministers 1144th meeting, DH-DD (2012) 488 Part1E (June 2012). 216 The possibility had received some judicial support throughout the litigation; see, for example, R (Al-Jedda) v Secretary of State for Defence [2008] AC 332 [38] (Lord Bingham); Al-Waheed (n 12) [45] (Lord Sumption). 217 Amos notes that: ‘If the subject matter of the judgment is politically contested, the judgment may also give rise to a national backlash against the ECtHR and human rights law generally.’ See Amos (n 213) 766. 218 Manco bemoans the fact that ‘a tendency to case-by-case reasoning results in a long-standing absence – at least in certain areas – of general obligations for member states’; Noemi Manco ‘The European Court of Human Rights: A “Culture of Bad Faith”?’ 2015 (6) Global Policy 529, 529. 219 Karen Da Costa suggested that the inconsistency even in Al-Skeini was ‘staining the Court’s reputation’; Da Costa (n 81) 247.

8 A Return to the Drawing Board I. INTRODUCTION

I

n his compelling concurring opinion in Al-Skeini, Judge Bonello urged his colleagues not to rest on the progress made in their Grand Chamber decision: My guileless plea is to return to the drawing board. To stop fashioning doctrines which somehow seem to accommodate the facts, but rather, to appraise the facts against the immutable principles which underlie the fundamental functions of the Convention.1

In this final chapter, I take up this challenge and propose a way forward for the extraterritorial question. However, I accept at the outset that such a path cannot lead to total certainty and stability in the law. After all, those who travel the path will remain the Convention’s core interpretive communities and the angles they take will always lead to deviations. As Fish notes, the actors will continue to compete for meaning with one another and within their own communities, and while ‘providing just enough stability for the interpretive battles to go on [there will remain] enough shift and slippage to assure that they will never be settled’.2 This chapter therefore proposes a solution to the extraterritorial question that is cognisant both of its position as an archetype in the Convention system and of the varying purposive enterprises within the communities that will have to employ any new meaning.3 The chapter first deals with the defining principles that will guide a new understanding, before engaging with existing proposals, including the muchlauded ‘functional’ approach to obligations that has been suggested as a solution to the extraterritorial question. The remainder of the chapter is dedicated to an exposition of the proposal, an example of its application and a defence of how it could be acceptable to each of the primary interpretive communities.

1 Al-Skeini v UK (2011) 53 EHRR 18, Concurring Opinion of Judge Bonello [O-II8]. 2 Stanley Fish, Is There a Text in This Class? (Harvard University Press, 1980) 172. 3 Jeremy Waldron, Torture, Terror and Trade-offs: Philosophy for the White House (Oxford University Press, 2012) 228.

Guiding Principles 201 II. GUIDING PRINCIPLES

In this book, I have sought to demonstrate that the definition of Article 1 jurisdiction has been shaped by the underlying purposive enterprises of those who engage with it. The result of this imbalanced inter-subjective process has been that, while cognisant of the principle of universality, the understanding of the Convention’s geographical scope in application has never been truly guided by this normative concern.4 Sunstein describes such incompletely theorised concerns as ‘hollow, in the sense that they must be filled, and have not yet been filled, with some kind of specification’.5 It is the lack of a consistent adherence to principle, often due to a necessary interpretive move by the ECtHR, which has caused much of the consternation in the current jurisprudence.6 As such, any lasting solution must not merely nod to the principle of universality as a justificatory explanation in certain cases, but should strive towards it in as coherent a manner as possible.7 In light of both this and the manner in which the Convention’s extraterritorial scope has been sculpted so far, there are three central considerations to take into account with regards to any proposed solution. The first guide refers to the manner in which universality is operationalised. The principle of universality is a recognition that all individuals are inherently equal and so human rights must be the same for everyone, everywhere. The key point here is that this must be recognised. It therefore must be clearly embedded in the understanding of to whom it is the Convention applies, leaving the question of whether a breach has occurred to later consideration.8 This distinction is vital in respect of where the Strasbourg Organs have gone wrong thus far. In pursuit of the protection of the individual, they have, more often than not, made findings that the state exercised jurisdiction. Yet the judges have done so in an inherently ex post facto context, expanding to meet the needs of the individual or group in the given case.9 They have created new lines, expanded previous ones or – as in the case of

4 Lea Raible, ‘The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should Be Read as Game Changers’ (2016) 2 European Human Rights Reports 161. 5 Cass R Sunstein, ‘Beyond Judicial Minimalism’ (2007) 43 Tulsa Law Review 825, 828. Raible suggests that Pisari and Jaloud could be read as a move towards a comprehensive jurisdictional approach relying on powers and proxies; Raible (n 4) 168. 6 Milanovic makes a similar point, noting that the court’s attempt to balance competing interests across its jurisprudence has made it impossible for a principled system to develop; Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press, 2011) 208–09. 7 Issa and Others v Turkey (2004) 41 EHRR 27 [71]; Isaak and Others v Turkey App No 44587/98 (ECtHR, 28 September 2006). 8 Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25 Leiden Journal of International Law 857, 862. 9 Holly Huxtable, ‘E.T Phoned Home … They Know: The Extraterritorial Application of Human Rights Treaties in the Context of Foreign Surveillance’ (2017) 28 Security and Human Rights 92, 102.

202 A Return to the Drawing Board the public powers exception – revitalised and repositioned earlier exceptions.10 While this has largely been to the benefit of individual applicants in seeking justice, it does little to prevent further abuses, as it has not given states the certainty or predictability required to adapt their behaviour in order to become more Convention-compliant.11 The result is that any approach that truly recognises universality must clearly do so at the outset in the understanding so that parties can avoid committing violations, and not merely in the litigation following any alleged violation. This will require a proposal that has a high degree of transparency. From this, the second point is in relation to the inevitable context that influences the interpretive practices of the primary groups who engage with the Convention system. As far as possible, any solution to the extraterritorial question must attempt to numb the impact that context will have on decision-makers in order to prevent a potentially discriminatory implementation. At present, an individual’s particular circumstances may elicit a response by one or more of the interpretive communities that, in turn, affects whether that individual is deemed to be within a state’s jurisdiction or not. In Chapter 4 I identified how the context surrounding the Banković application served to hinder the individual applicants’ claims, while in Chapter 7 I noted that analysis from domestic courts demonstrated a real concern in respect of the costs of assisting nationals detained abroad.12 For universality to be truly recognised, such calculations cannot be made in relation to the question of whether an obligation exists, but instead whether it has been discharged. The very real, pressing arguments about the expenditure of resources and practical ability to fulfil rights should form the basis of consideration of whether a rights violation has taken place and not whether an individual is owed an obligation in the first place. The final guiding point is that any proposal cannot include the possibility of demarcating the beneficiaries of human rights obligations based on red lines. The separation of those who enjoy human rights protection from those who do not cannot be made on calculations of distances in metres and feet. Where an individual benefits by being on one side of a wall, but not on another can never be the basis for a truly principled system of human rights protection as it allows for arbitrary distinctions to seep into the interpretive process. Despite their compulsion towards certainty, some members of the British judiciary have roundly criticised such subjective distinctions.13

10 See ch 7, pp 169–76. 11 Sarah Miller, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’ (2009) 20(4) European Journal of International Law 1223, 1229–30. 12 Smith v Ministry of Defence [2013] UKSC 41; R (on the Application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44. 13 See ch 6, pp 148–49.

Conservative Options 203 III. CONSERVATIVE OPTIONS

Given these universalist concerns, I am naturally unconvinced by the more conservative proposals put forward in recent years. In respect of British engagement with the extraterritorial question, Ekins and Verdirame have called on the UK Supreme Court to declare the HRA not to have an extraterritorial scope in application14 or, alternatively, to return to the quasi-territorial enclave approach from the early Al-Skeini litigation.15 Given that the latter was never expressly rejected by the ECtHR, there is the potential that it could be used in dialogue between the bodies. Notwithstanding this, the former suggestion is clearly intended to set British law-makers on a collision course with the Strasbourg judiciary. The one proposal from this sector that may have some merit is the notion of extraterritorial derogation.16 As was discussed in Chapter 5, this would depend on how the argument was framed and, in particular, the reasons for its deployment.17 If a state was truly engaged in the pursuit of humanitarian purposes, there may be some value in allowing it to reduce its human rights obligations in order to more effectively address the situation. That said, the debate on such a proposal so far has wholly lacked these altruistic concerns and, if deployed solely to avoid the imposition of frustrating obligations, would certainly be objectionable. Nonetheless, it is important to recognise that there has been increasing frustration from some states in relation to the application of the Convention to armed conflict in recent years, so much so that the earliest draft of the 2019 Copenhagen Declaration on the Reform of the ECHR included a proposal to syphon off any cases involving conflict between two or more state parties into a separate mechanism.18 While this language was watered down considerably in the final draft – wholly removing the proposal of a separate body – the discussion demonstrates the ongoing tensions between the Strasbourg system and the application of human rights to armed conflicts.19 Therefore, for the ECtHR, extraterritorial derogations may offer what Peter Rowe has described as the ‘less worse option’ in order to appease states who are concerned with the impact the Convention’s application has on their ability to

14 Richard Ekins and Guglielmo Verdirame, ‘Judicial Power and Military Action’ (2016) 132 LQR 206, 208. 15 ibid. 16 Thomas Tugendhat and Laura Croft, ‘The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power’ (Policy Exchange, 2013) 58. See also Marko Milanovic, ‘Extraterritorial Derogations from Human Rights Treaties in Armed Conflict’ in Nehal Bhuta (ed), The Frontiers of Human Rights (Oxford University Press, 2016). 17 See ch 5, pp 135–36. 18 Draft Copenhagen Declaration (5 February 2018), https://menneskeret.dk/sites/menneskeret.dk/ files/media/dokumenter/nyheder/draft_copenhagen_declaration_05.02.18.pdf [54.b]. 19 Council of Europe, ‘Copenhagen Declaration’ [54(c)].

204 A Return to the Drawing Board engage in foreign military operations.20 It may thus be that circumstances determine that the Strasbourg bench feel that they are compelled to give an indication that such a deployment of Article 15 would not be rejected immediately. IV. PROGRESSIVE OPTIONS

Of the more progressive approaches proposed to solve the extraterritorial question, there is one that has received considerable traction. Known as the ‘functional’ approach, it has been articulated in different guises by a range of contributors. In proposing his version, Yuval Shany argued that a ‘state should be obliged to respect and protect the human rights of those it is in a position to respect and protect, to the extent that is in a position to do so’.21 Therefore, rather than a codification of relevant exceptions, the functional test is a blanket application premised on what a state can do. Others have advocated for a similar approach. For instance, in an individual opinion in the case of Assanidze, (now former) ECtHR Judge Loucaides suggested that jurisdiction could be assimilated with authority and so any instance where a state has ‘the possibility of imposing’ its will on any person would give rise to a jurisdictional connection.22 In Ilaşcu, he sought to develop this proposal further by adding that a state should be held accountable when it fails to ‘discharge its positive obligations in respect of any person if it was in a position to exercise its authority directly or even indirectly over that person or over the territory where such person is’.23 Gondek proposed a similar flexible authority approach. The one he favoured was for a Contracting Party to have jurisdiction where it held the ‘possibility of imposing the will of the state on any person’.24 The understanding of control would then be gauged in the calibrated way that was suggested by the applicants in Banković, notably that the obligation under Article 1 would increase with the proportionate control the state exercised over the individual in question.25 A second angle to this functional approach has also emerged, this time relating to the connection between the injuries caused by the violation and the

20 Peter Rowe, Legal Accountability and Britain’s Wars 2000–2015 (Routledge, 2016) 171. See also Retired Brigadier Anthony Paphiti, who referred to it as the ‘only viable course’ other than leaving the Convention; Written evidence from Brigadier (Rtd) Anthony Paphiti, UK Armed Forced Personnel and the Legal Framework (HC931, 2014) Ev.20, 29. 21 Yuval Shany, ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Laws’ (2013) 7 Law and Ethics of Human Rights 47, 65. 22 Assanidze v Georgia (2004) 39 EHRR 32, Concurring Opinion of Judge Loucaides [O-I2]. See also Loukis Loucaides, ‘Determining the Extra-Territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic Case’ [2006] European Human Rights Law Review 391, 402. 23 Ilaşcu and Others v Moldova and Russia (2004) 40 EHRR 46, Partly Dissenting Opinion of Judge Loucaides [O-IV2]. 24 Michal Gondek, The Reach of Human Rights in a Globalizing World: Extraterritorial Application of Human Rights Treaties (Intersentia, 2009) 375. 25 ibid 376.

Progressive Options 205 state’s actions. In its General Comment 36 concerning the right to life under the ICCPR, the HRC indicated that the right would apply to any ‘persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner’.26 Thus, rather than anywhere a state is in a position to respect and protect rights, this test is based on a calculation of harm caused to the individual. Francoise Hampson takes a similar approach submitting that the test should require a suitable level of ‘control over the effects said to constitute a violation, subject to a foreseeable victim being foreseeably affected by the act’.27 There are also remnants of this approach in the ECHR jurisprudence. Looking back to the earliest cases in the Commission, the breadth of this test has echoes of the simple ‘affect’ connection.28 Both the HRC and Hampson’s descriptions also demonstrate similarities with the ‘direct and immediate cause’ of injuries test from Andreou.29 They are also similar to Lawson’s contention that a connection should exist where there is a ‘direct and immediate link’ between state conduct and the individual harmed.30 More recently, a variation of the functional test was proposed by Judge Bonello in his concurring opinion in Al-Skeini. He suggested: In my view, the one honest test, in all circumstances (including extra-territoriality), is the following: did it depend on the agents of the state whether the alleged violation would be committed or would not be committed? Was it within the power of the state to punish the perpetrators and to compensate the victims? If the answer is yes, selfevidently the facts fall squarely within the jurisdiction of the state.31

There is an attraction to this approach in its various forms. Indeed, so much so that, as I will cover in a moment, I partly adopt it into my proposal. Yet there is one central imposing challenge that it presents to the notion of universality. Shany contends that functionalism equates to universalism as: ‘It posits that states should protect human rights wherever in the world they may operate, whenever they may reasonably do so.’32 On its other readings, the functional

26 UN, Human Rights Committee, General Comment No 36, Article 6 of the International Covenant on Civil and Political Rights, on the right to life (30 October 2018) CCPR/C/GC/36 [63]. 27 Francoise Hampson, ‘The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body’ (2008) 90 International Review of the Red Cross 551, 570. 28 Cyprus v Turkey (1982) 4 EHRR 482, 586. 29 Andreou v Turkey App No 45653/99 (ECtHR, 3 June 2008). 30 See Rick Lawson, ‘Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights’ in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 104; Rick Lawson, ‘Really out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict under the ECHR’ in Antoine Buyse (ed), Margins of Conflict: The ECHR and Transitions to and from Armed Conflict (Intersentia, 2011) 70. 31 Al-Skeini (ECtHR) (n 1) Concurring Opinion of Judge Bonello [O-116]. 32 Shany (n 21) 67.

206 A Return to the Drawing Board basis is predicated upon affects, an assessment of foreseeability and whether a state had power. However, at the coalface of human rights protection, this test is unilaterally interpreted by the Contracting Parties in their engagement with individuals and, adherent to their purposive enterprise, it is one we could expect them to fight robustly in order to evade both liability and constraint. These thresholds are inherently of a subjective quality and given the practice of some states towards the extraterritorial question, there would be a risk that setting such subjective indicators for the enactment of Convention obligations would only channel the arguments currently made on jurisdiction into degrees of foreseeability and definitions of directness. While these may be wholly valid concerns, addressing them at the threshold stage of whether a right applies in the first place will continue to stifle any real inclusion of universality. The second frailty in this approach is that in an area that has been so devoid of legal certainty, it perpetuates past mistakes. Whether my first contention that states could seek to exploit the subjectivity of the test is correct or not, there would remain no clear articulation of what the law is and when the obligations arise, even where states are acting in the utmost good faith. While clearer than a test of control or the exercise of public powers, it would remain imprecise, as the extent of the obligation would rise and fall with the level of control exercised, the degree of foreseeability and the amount of power deployed. The result is that, once again, only a court will have capacity to perform the calculation after the violation has occurred, and thus incur the political costs of doing so. Obligations may emerge and become moderately more determinate, but the cost of this is the violations suffered by the respective victims in the pursuit of the clarity of the law. Certainly, the functional assessment will put states on notice, at least about the immediate victim. Thus, the suspected insurgent deprived of their liberty, the driver killed in a drone attack and the former spy poisoned on their doorstop will all clearly be within a state’s jurisdiction. But what of the village in a neighbouring country poisoned by a polluting power plant upstream or the refugees pushed back from a border crossing? The application of Convention rights to these individuals will still require judicial resolution and even then, clarity may not be forthcoming. Some states will continue to argue for the lower standard and, in turn, there will be consternation if the court opts for a higher threshold. This may then elicit a different approach from the ECtHR the next time that the issue is addressed, and the ambiguity will continue. These concerns mean that while functionalism is a solution, it is not the solution to the extraterritorial question. V. A PROPOSAL

The proposal that I advocate comes from a concoction of suggestions made by other commentators. In particular, I am following a division between negative

A Proposal 207 and positive obligations that is advocated by Milanovic. This separation has been the subject of criticism from some who suggest that such obligations are inseparable and necessary to complement one another,33 with their separation cutting across the inter-dependence of human rights provisions.34 However, it is important to remember that all functional approaches also involve an acceptance of the divisibility of human rights obligations in accordance with the situation.35 Indeed, the ECtHR’s current approach to dividing and tailoring rights where personal jurisdiction is exercised gives rise to this very separation.36 Nonetheless, as a further remedy to this criticism, my proposal is deliberately expansive and sets intentionally apparent standards. Pursuant to Milanovic’s claims, I also contend that all negative obligations, those restrictions on a state that prevent it from breaching a right and those that are parasitic upon the alleged breach of one (such as investigative obligations under Articles 2 and 3), should be considered within the jurisdiction of the state.37 Departing from Milanovic’s proposal, which restricts the application of positive obligations, those commitments states undertake to give effect to rights, to areas where a state exercises effective control;38 all positive obligations should be subject to a simple functional test of whether the action required was one within the state’s power to take.39 Rather than rehearse the arguments made in support of these tests, in this section I seek to explain how this division would work and why this hybrid of different approaches may be acceptable to Article 1’s three primary interpretive communities. Thus, while Milanovic considers whether his model may be possible under the text of human rights treaties, my ongoing contention has been that jurisdiction in Article 1 is an indeterminate term and so anything is possible, so long as it is compelling to the relevant interpretive communities.40 A. Negative Obligations Jurisdiction under Article 1 should extend to all acts by the state that give rise to an allegation that a negative obligation has been breached. The implication of this is that states will immediately be put on notice that the negative obligations that constrain their actions at home will follow them abroad. Where a state is alleged to have violated a negative obligation in an extraterritorial setting, a

33 Besson (n 8) 879. 34 Shany (n 21) 62. 35 Beth van Schaack, ‘The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change’ (2014) 90 International Law Studies 20, 49. 36 Al-Skeini (ECtHR) (n 1) [137]. 37 Milanovic (n 6) 209. 38 ibid. 39 ibid. 40 ibid [212]. See also Huxtable (n 9) 104.

208 A Return to the Drawing Board court would therefore not need to resort to preliminary discussions of jurisdiction, but would instead proceed immediately to the evaluation of whether the right had been breached. Allied to this would be the immediate engagement of the procedural investigative obligations. Thus, there would be no need for a factual assessment of whether an individual was within custody or not before a state committed to investigating their ill-treatment or death; the obligation would automatically arise. The brevity with which this can be explained is linked to its simplicity and intended transparency. How it would apply in practice should be equally clear. Take, for instance, the RAF drone strike in northern Syria that killed Reyaad Khan, a British-born recruiter for the Islamic State group.41 Rather than technical debates about incremental levels of control, the situation would be simple. The attack would give rise to a jurisdictional link and so the state would have been required to assess its compliance with provisions of Article 2 in advance, and conduct an independent and effective investigation into the death in its aftermath.42 This engagement would take place regardless of the victim or the manner of their execution. It would not matter whether the modus operandi of the attack was by drone, helicopter attack or assassination by poison; the Convention would be engaged. An additional area that this adaptation would cover are the decisions taken domestically that trigger the violation of a person located extraterritorially. The idea of jurisdiction over ‘domestic decisions’ was considered briefly in Chapter 6 in respect of the soldier cases.43 It was also canvassed in the Chagos Islanders case, where the applicants contended that as the decisions that ultimately led to their removal and displacement from the island group were made within the UK, the test for jurisdiction was sufficed on a territorial basis.44 The Court refused to follow this argument, instead focusing on where the effects of the decisions were felt. In this regard, it held that ‘the ultimate decision-making authority of politicians or officials within the United Kingdom is not a sufficient ground on which to base competence under the Convention for an area otherwise outside the Convention space’.45 This is an unsatisfactory position for a principled system of human rights to rest upon. It suggests that a state can mastermind human rights violations domestically and, so long as the individual affected by these abuses does not fall within an exceptional exercise of jurisdiction in Article 1, liability can be 41 ‘Cardiff Jihadist Reyaad Khan, 21, Killed by RAF Drone’ (7 September 2015), https://www.bbc. co.uk/news/uk-wales-34176790. 42 Contrast this with the current position, where, as Lord Dyson suggests, if Banković were heard again today, the Court would reach the same conclusion; Lord Dyson, ‘The Extraterritorial Application of the European Convention on Human Rights: Now on a Firmer Footing, But is it a Sound One? (20 January 2014), https://www.judiciary.uk/wp-content/uploads/JCO/Documents/ Speeches/lord-dyson-speech-extraterritorial-reach-echr-300114.pdf 19. 43 See ch 6, pp 163–64. 44 Chagos Islanders v UK (2013) 56 EHRR SE15 [65]. 45 ibid [66].

A Proposal 209 avoided. Human rights violations are not restricted to the actions of clandestine operatives at the dead of night. There are numerous actions taken in broad daylight from behind a desk in a capital city that can have profound ramifications for the individuals who suffer their effects. Take, for instance, the decision to strip an individual of their citizenship while they are located in a remote corner of a war-torn nation46 or to share intelligence with a foreign power which could result in the death penalty being imposed.47 In neither of these situations could a victim fall within a state’s jurisdiction if the lens of focus was placed solely on the interaction between them and the state, but by expanding the geographical scope of the Convention’s application to all negative obligations, this gap would begin to be filled. B. Positive Obligations The test for positive obligations would be somewhat more nuanced but similarly as broad. Where positive obligations are at issue, it is proposed that the question of jurisdiction is premised on whether the measure required to fulfil the proposed obligation was one within the state’s power to take. Thus, consistent with the approaches of Shany, Loucaides and Bonello, the obligation would be inherently connected to a state’s power.48 This expansive approach would enact an obligation in most cases and yet leave a degree of distance between a state’s obligation and a truly tenuous connection. One example to bring this situation to life involves refugees attempting to cross the Mediterranean. Reports have suggested that coastguards have failed to respond to emergency requests for assistance from vessels in distress. In one instance, the Italian Coastguard was accused of failing to respond for up to five hours, contributing to the deaths of over 250 people.49 This could form the basis of an Article 2 violation in respect of the positive obligation to take steps to protect life. However, under the present iteration of jurisdiction, it would be difficult to see under what circumstances Italy would have exercised jurisdiction over the boat and its passengers.50 Under the proposed positive obligations test, 46 Patrick Greenfield, ‘Sajid Javid Accused of “Human Fly-Tipping” in Shamima Begum Case’ (The Guardian, 31 May 2019), https://www.theguardian.com/uk-news/2019/may/31/sajid-javid-accusedshamima-begum-case-syria. 47 R (El-Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 (Admin). 48 See also Raible (n 4) 168. 49 Anna Momigliano, ‘Italian Forces Ignored a Sinking Ship Full of Syrian Refugees’ (Washington Post, 9 May 2017), https://www.washingtonpost.com/news/worldviews/wp/2017/05/09/ italian-forces-ignored-a-sinking-ship-full-of-syrian-refugees-and-let-more-than-250-drown-saysleaked-audio/?noredirect=on. 50 It would be possible to make a case for the exercise of public powers, but even this would require an extension of the existing understanding of this exception. For a discussion of applying the ECHR to such activities, see Vassilis Tzevelekos and Elena Katselli Proukaki ‘Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?’ (2017) 86 Nordic Journal of International Law 427, 456–60.

210 A Return to the Drawing Board the jurisdiction would be clear. Because it was within Italian power to act, the obligation to act would be enacted. A second example would be circumstances in which a state is in possession of intelligence that an individual is to be targeted by the agents of another nation. The possession of this intelligence puts the state in a position to prevent the unlawful taking of life by warning the individual. Under the model I propose, such knowledge would enact an obligation. In her official report into the assassination of Saudi journalist Jamal Khashoggi by Saudi Arabian agents at the Saudi consulate in Istanbul, Agnes Callamard, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, indicated the emergence of such a duty. While she concluded that there was insufficient evidence to suggest that Turkey, where the killing took place, or the US, where Khashoggi resided, had known of the imminent threat to the journalist’s life,51 she indicated that if they had, there would have been a duty to warn him.52 A third instance where this test could apply would be during military occupation. In this sense, there would be an element of the existing spatial jurisdiction applied to this situation, with an addition being that a state could clearly rebut the application of obligations where it did not have power to take such measures. For instance, if a state is in dual occupation of the territory of another state, as the UK was in Iraq, it may have sufficient effective control to prevent unlawful disorder that risks lives and address fundamental issues of structure, like the maintenance of water and electricity supplies, but it may not have the power to bring about significant changes in marital law or the regulation of online material. In this case, the state would therefore be better able to predict its obligations at the outset and convey them to the domestic population. A final benefit would be the capability of this test to engage the actions of other groups with a close connection to the state. Under the proposed test, states would be obligated to take human rights concerns into their engagement of private military contractors, security companies and locally employed operatives. While the test would not make the state directly liable for the actions of these groups, it would create a more coherent path for litigants to hold a state to account for failing to deploy due diligence in the employment of particular organisations or to negotiate agreements on the basis of human rights-compliant performance.53 Beyond these examples, it is within this positive obligations component that other emerging concerns could be captured. For instance, it is

51 Agnes Callamard, UN Special Rapporteur on extrajudicial, summary or arbitrary executions, ‘Annex to the Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Investigation into the Unlawful Death of Mr Jamal Khashoggi’ (19 June 2019) A/HRC/41/ CRP.1 [13]. 52 ibid [14] [b], [c], [e] and [f]. Callamard suggested that the extraterritorial application of this duty was triggered through the exercise of ‘power or effective control over individual’s enjoyment of the right to life’. 53 See generally Andrew Clapham, Human Rights Obligations of Non-state Actors (Oxford University Press, 2006) 347–421.

The Communities 211 here that a state’s ongoing contribution to climate change may be litigated and where advancements in technology may receive consideration. VI. THE COMMUNITIES

The breadth of this test clearly progresses beyond the current systematisation of jurisdiction from Al-Skeini. The obvious question this then raises is why each of the three primary communities would be willing to accept such a proposal. Here the inter-connected nature of their purposive enterprises becomes apparent. Given the structure I have followed so far and the position of the Strasbourg Court as the most influential interpretive community, it would be sensible for me to start my explanation there. Yet, as the purposive enterprise of the Strasbourg Organs requires cognisance of ongoing state compliance with the Convention, I first need to address the community for whom this proposal would be most troublesome: the Contracting Parties. A. Contracting Parties Given that the purposive enterprise of this community is a commitment to the European human rights regime, alongside a deep aversion for being constrained and found in violation of an obligation, one could be forgiven for thinking that my broad proposal would be anathema to this group. However, there are several reasons why a broader and more settled approach would be acceptable to Contracting Parties. The first of these is because progression and expansion is clearly the direction of travel for the notion of extraterritorial obligations, both within and outside the Convention system. The Iraq cases, and jurisprudence to follow them, have all firmly continued the Convention system on a journey of incremental expansion into new areas in order to address new problems. The response of states to the confirmation of these extraterritorial obligations has generally been of (sometimes reluctant) acceptance. In Chapter 5 I noted how in the early years, states swiftly moved away from fighting the very notion that the Convention applied abroad and instead constructed their arguments on what Article 1 jurisdiction meant and whether it arose in the relevant circumstances. More recently, some states are moving away from that, with a willingness to accept the Convention’s application without contesting jurisdiction and instead defending allegations based on whether the relevant right was infringed.54

54 eg, Big Brother Watch and Others v UK App No 58710/13, 62322/14 and 24960/15 (ECtHR, 13 September 2018) [271]; Centrum för Rättvisa v Sweden App No 35252/08 (ECtHR, 19 June 2018). See also ND and NT v Spain Grand Chamber (decision pending), although note that the Chamber had found jurisdiction in this case; ND and NT v Spain (ECtHR, 8675/15 and 8697/15) [54].

212 A Return to the Drawing Board Moving outside Europe, the recognition of extraterritorial obligations is becoming increasingly pervasive in other systems. Having studied states’ recommendations during a Universal Periodic Review session at the UN Human Rights Council, Heupel concluded that not only is there a widespread acceptance among states that their obligations apply extraterritorially, but that they primarily view their obligations to be negative in nature.55 Allied to this is the emerging functional position from the HRC noted above. If obligations under the ICCPR are moving towards arising where a state’s actions affect an individual in a ‘direct and reasonably foreseeable manner’,56 then, as all Contracting Parties to the ECHR are also state parties to the ICCPR, they will need to adapt their behaviour in order to be compliant with this approach.57 As states are increasingly accepting their extraterritorial obligations and as the direction of travel within the Convention regime (and outside it) will require continued compliance with this, there is some sense in states giving up the battle for the extraterritorial question on the issue of Article 1 jurisdiction and instead pursuing their enterprise elsewhere. This leads to a second reason why states may be willing to tolerate this proposal. By accepting a broad understanding of where the Convention applies, states will be able to channel their arguments into debates about the realistic application of their extraterritorial obligations.58 This is not a trivial point, but, to date, it has been a problematic contention to argue as it has been so closely aligned with the jurisdiction question. The problem thus far has been that the argument has been made in an attempt to restrict the right being recognised and therefore it continues to strike tensions with the principle of universality. If this saga was brought to a close with a more expansive and coherent understanding that reflected the universal application of rights, states would be free to target this issue with greater vigour and credibility when discussing whether it was reasonable for them to uphold a particular right. Here, some of the more questionable politico-legal arguments discussed in Chapter 5 may become more palatable. In other words, states will be able to use policy-orientated arguments in a forceful manner to rationally explain why they may not have fulfilled an obligation. This is a far more palatable approach than to simply say that their actions may well have been unreasonable, but that it did not matter because they did not owe an obligation in the first place. The third reason why this approach may be acceptable to states lies in what they would gain from it: legal certainty. This community requires such certainty in order to calculate whether their actions are Convention-compliant or not.59

55 Monika Heupel, ‘How Do States Perceive Extraterritorial Human Rights Obligations? Insights from the Universal Periodic Review’ (2018) 40(3) Human Rights Quarterly 521, 525. 56 HRC, General Comment 36 (n 26) [63]. 57 All Contracting Parties to the ECHR are also state parties to the ICCPR. 58 Al-Skeini (ECtHR) (n 1) [168]; Jaloud v The Netherlands (2015) 60 EHRR 29 [226]. 59 Miller (n 11) 1230.

The Communities 213 At each of the recent major conferences on reform of the ECHR, states have come together in requests for greater clarity and consistency from the Court.60 The Copenhagen Declaration specifically notes this: The quality and in particular the clarity and consistency of the Court’s judgments are important for the authority and effectiveness of the Convention system. They provide a framework for national authorities to effectively apply and enforce Convention standards at domestic level.61

A major lesson from the UK’s experience in Iraq is the cost of a lack of clarity. As I argued in Chapter 5, British authorities gambled on the ambiguity in the Court’s contemporary case law and determined that they could argue that the Convention did not apply to its operations in Iraq. While the human cost of this decision is difficult to calculate, the practical and financial cost for the state was sizeable. The British government faced a wave of litigation and has paid out millions in compensation to individuals whose rights were violated.62 While the indeterminacy was an asset to the government in 2003, allowing it to act without the constraint of the Convention, legal certainty would still have been preferable. Had it been faced with a clear position with regard to the Convention’s application, it could have taken different measures, particularly with respect to the investigation of deaths and ill-treatment,63 or deployed different arguments with respect to the detention of suspected insurgents.64 It should not be overlooked that the key instance of success during this litigation in Hassan, where the UK avoided a violation and the Court read obligations through the prism of international humanitarian law during an international armed conflict, came after the jurisdiction question had largely been resolved in Al-Skeini.65 Calls for clarity and legal certainty have particularly come from the military sector. In an inquiry into legal challenges faced by the military, the Ministry 60 Council of Europe, Interlaken Declaration, High Level Conference on the Future of the European Court of Human Rights (19 February 2010) [4]; Council of Europe, Brighton Declaration, High Level Conference on the Future of the European Court of Human Rights (April 2012) [15(B)], [23] and [25](C). 61 Council of Europe (n 19) [27]. 62 As of November 2016, the UK government had paid £19.8 million in compensation in cases that were settled. See Annex, Letter from Michael Fallon to Harriet Harman (22 November 2016). By June 2017, this figure stood at just under £22 million; Scott D’Arcy, ‘MoD Paid out Almost £22m in Iraq War Compensation Claims’ (Huffington Post, 13 June 2017), https://www.huffingtonpost. co.uk/2017/06/12/mod-paid-out-almost-22m-in-iraq-war-compensation-claims_n_17064712.html. 63 Despite noting that there were significant challenges with regard to the application of investigative obligations abroad, Quénivet comments that not all aspects are ‘mission impossible’. In particular, she notes that the obligations of promptness and independence are eminently achievable; Noëlle Quénivet, ‘The Obligation to Investigate after a Potential Breach of Article 2 ECHR in an Extra-Territorial Context: Mission Impossible for the Armed Forces?’ (2019) 37(2) Netherlands Quarterly of Human Rights 119, 132. 64 For instance, one of the more effective arguments during the Iraq jurisprudence was in relation to the principles of international humanitarian law in Hassan. 65 The UK had specifically argued in Hassan that ‘Article 5 had to be interpreted and applied in conformity and harmony with international law’; Hassan v UK App No 29750/09 (ECtHR, 16 September 2014) [88].

214 A Return to the Drawing Board of Defence (MoD) expressed that ‘Armed Forces personnel need to be confident that their day-to-day decisions in operational conditions are lawful’66 and, in respect of the ECtHR, that recent decisions have not ‘been conducive to clarity’.67 Submitting evidence to the same inquiry, Martin Hemming, former Head of Legal Services at the MoD, noted the ‘uncertainty about the true legal position in a number of important areas’.68 While a broader approach may still be concerning to states, the added clarity with regard to what standards they will be expected to uphold on operational matters may mitigate these new challenges. Given these reasons, focus turns to what states would lose by accepting this proposal. The answer to this is that they would inevitably be constrained to a greater extent by transparent standards of when human rights obligations would apply to them. Of course, calculations would still be taken on the basis of different lines of jurisprudence and some states will simply continue to pay lip service to the Convention system while failing to implement its standards in any meaningful way. For the majority, however, this more rigid constraint will be the price they pay to remain part of a principled human rights system.69 Sunstein notes that ambition creates ‘real losers, who will not be pleased to find that their defining commitments have been ruled off-limits’.70 The losers in this proposal will be the states, but their loss will be softened by the mitigations I have outlined. B. National Courts In theory, national courts should pose the least resistance to the proposed alterations to the understanding of jurisdiction. Judges in the higher echelons of UK courts have arguably been the most vocal in respect of the confusion caused by the Strasbourg approach and the most keen on establishing clarity. The approach I have advocated could meet both aspects of their purposive enterprise in ensuring this clarity while contemporaneously allowing them to analyse and critique the application of the law. Rather than through a comprehensive system of exceptions or the constructions of dubious bases from interpretive leaps, domestic judges would simply need to consider whether one of the two triggers for jurisdiction had taken place. In turn, this would allow them to continue making contributions to the area in respect of probing the application of rights. Whether that is to speculate that floodgates may open or that a determination may bring a judge into areas that they should not tread, the discussions taken in this forum will contribute to the ongoing shaping of extraterritorial obligations.

66 UK

Armed Forced Personnel and the Legal Framework (HC931, 2014) [30]. Evidence, UK Armed Forced Personnel and the Legal Framework (HC931, 2014) Ev1 [6]. 68 ibid, Martin Hemming evidence Ev93 [3]. 69 Sunstein (n 5) 841. 70 ibid. 67 MoD

The Communities 215 Moreover, these focused discussions in well-defined areas will serve to better engage an appropriate dialogue between domestic authorities and the Strasbourg judges in a way that contributes to a more transparent inter-subjective settlement. Given that this proposal takes the extraterritorial question in a dramatically more progressive direction, it would be foreseeable for domestic judges to approach the questions about how rights apply in a more conservative manner. In turn, this could give rise to a vivid deconstruction of concerns relating to the particular case at hand that would serve to inform the Strasbourg bench of relevant considerations they may wish to reflect upon in engaging with similar questions. In doing so, national judges would continue to demonstrate to Parliament their cognisance of particular political, social and economic issues in the implementation of universal rights, thus safeguarding their position as a primary interpretative party in this venture. C. The Strasbourg Community For the Strasbourg community, such an approach would move to serve both ends of its purposive enterprise. In respect of the protection of the individual, the allure of this proposal is clear: it moves to fill gaps within individual protection that have arisen in respect of the ECtHR’s current geographical scope of application. The negative obligations component leaves little room for exploitation by states in respect of specific factual circumstances and, importantly, removes the distance between domestic decisions and the effects they bring about. The power test for positive obligations draws all but the most remote applications within a realm that the court could adjudicate. The more pressing aspect of the Strasbourg enterprise would be how such a generous proposal could be adopted without the Court losing state compliance. For the Court, there are two important points in relation to the attractiveness of this proposal in this regard. The first is a candid reflection on what the extraterritorial question has done, and risks continuing to do, to the Court’s authority. As Miller has noted, the issue has posed significant questions for the Court’s institutional credibility.71 While the Al-Skeini framework has brought about a degree of stability in the system, outstanding questions regarding what amounts to control, the role of public powers and how rights are divided and tailored will inevitably give rise to tense disputes. Litigation will continue and the Court’s approach will then be criticised as inconsistent and unprincipled, and the cycle will perpetuate as the Court continues to shape its responses according to the context of the situation.

71 Miller

(n 11) 1230.

216 A Return to the Drawing Board The second aspect to this is a repetition of one of the mitigating factors for states, this time through the lens of the Strasbourg judges. In short, by circumventing the challenges of the question of jurisdiction, the Court would more readily be in a position to provide a faithful discussion of the difficulties in fulfilling rights in an extraterritorial context. Over the course of its history, the Strasbourg community has been adept at demonstrating to states that it is conscious of their concerns. This can continue both in respect of whether a negative obligation has been breached and particularly in respect of consideration of whether a positive obligation is required in an extraterritorial context. Thus, just as the Court has indicated its awareness of the particular challenges of investigative obligations, it can do the same with the application of other rights – for instance, through clearly rejecting any more tenuous applications that it receives and enforcing a coherent standard for when the Convention’s obligations will be engaged. While this will, on occasion, require a departure from the minimalism that has served the Court so well, it will allow for a franker engagement with particularly difficult issues that, in turn, could breed further confidence in the system. However, with this comes a concern that an increasing number of extraterritorial claims may give rise to institutional challenges. This is a very real apprehension given that the Court has only relatively recently been able to reduce the considerable backlog that it was facing.72 Yet, writing specifically on the relationship between expanding the scope of protection under the Convention and institutional concerns about increasing applications, Gerards notes that the challenges lie less in the number of applications than in the ‘complex assessment of national policies and evaluation of intricate legal issues’.73 The proposal I advocate would simplify these matters greatly given their clarity. No longer would the Court be compelled to engage in lengthy admissibility disputes74 or merge the issues of admissibility with merits and focus on the jurisdiction question.75 The enactment of all negative obligations, and all positive obligations within the state’s power, would speed this aspect of the process up. Where complex considerations may be required would be in relation to how the Convention rights actually apply abroad. Here it will be necessary for the Court to articulate clearer guidelines than it has thus far. Yet, under the Court’s current approach, it would often end up at this point in any event. What I propose is a way for it to get there without having to resort to such flexible interpretive practices. 72 It was noted in the 2018 Annual Report that there had been a 15 per cent reduction in the number of Chamber and Grand Chamber cases, which tend to be the more complex; see Council of Europe, Annual Report 2018 of the European Court of Human Rights, 167. 73 Janneke Gerards, ‘The Scope of ECHR Rights and Institutional Concerns: The Relationship between Proliferation of Rights and the Case Load of the ECtHR’ in Eva Brems and Janneke Gerards (eds), Shaping Rights in the ECtHR (Cambridge University Press, 2013) 86. 74 Banković and Others v Belgium and Others (2007) 44 EHRR SE5. 75 Al-Skeini (ECtHR) (n 1).

Conclusion 217 VII. CONCLUSION

In this chapter I have addressed some of the existing suggestions made to solve the extraterritorial question. I have advocated that by tailoring different threads together, a coherent proposal is possible that recognises universality, while remaining cognisant of the interpretive angles from which each of Article 1’s core interpretive communities approaches the extraterritorial question. In certain respects, the proposal takes much of the interpretive divergence between the communities, and channels them away from the question of Article 1 jurisdiction and into the merits of the dispute. Thus, it could be criticised for not really solving the issue, but for relocating it elsewhere. There is some truth to this, yet I believe such a repositioning is merited as it affords the significant benefit of clarity and transparency to all involved in the system. In particular, it gives states a much clearer idea of when and where their obligations will apply, allowing them to adjust their behaviour accordingly and possibly avoid the commission of a violation in the first place. If nothing else, therefore, the human benefit of this proposal makes it worth some consideration.

Conclusion Human Rights Imperialists

T

he designation of those who have interpreted a state’s human rights obligations to apply abroad as ‘human rights imperialists’ has always seemed somewhat of an oddity to me in the context of Article 1 ECHR.1 While it is right for all states, not least the European powers with histories steeped in colonialism, to retain such concerns, to date this has simply not been a truly relevant consideration to the extraterritorial application of the ECHR.2 Rather than the imposition of foreign values, the jurisprudence of the ECtHR has thus far been dominated by isolated military operations, investigative obligations, detentions and arrests abroad. It is now turning towards mass surveillance and,3 in particular, the treatment of refugees and asylum seekers.4 It has not been about enforcing liberal Western values on non-European societies. Moreover, with one or two notable exceptions that have taken place within Europe, it has not involved the creation of a lasting rights-based relationship between a foreign state and the domestic population.5 In short, human rights imperialism is not yet a concern that should prevent a Contracting Party to the ECHR from securing and respecting the rights of individuals they encounter in their extraterritorial activities. Rather than imperialism in the sense of colonialism, subjugation and territorial occupation, it may be more appropriate to consider the extraterritorial question in terms of the ongoing expansion of human rights protections. In this sense, the very nature of human rights is imperialistic – not towards cultural domination and the imposition of external values – but in respect of

1 Paul Arnell, ‘Human Rights Abroad’ (2007) 16(2) Nottingham Law Journal 1, 17–18. See also R (on the Application of Al-Skeini and Others) v Secretary of State for Defence [2007] UKHL 26 [78] (Lord Rodger), [129] (Lord Brown). 2 Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25(4) Leiden Journal of International Law 857, 880. 3 Big Brother Watch and Others v UK App No 58710/13, 62322/14 and 24960/15 (ECtHR, 13 September 2018). 4 Hirsi Jamaa and Others v Italy (2012) 55 EHRR 21; ND and NT v Spain (ECtHR, 8675/15 and 8697/15). 5 Naz Modirzadeh, ‘The Dark Sides of Convergence: A Pro-civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict’ (2010) 86 International Law Studies 349, 375.

Conclusion 219 an appropriate recognition of universality. The statement of truly universal human rights values in the modern age are those enshrined in the Universal Declaration of Human Rights.6 It is this text that embeds universality into the present-day international human rights movement, and it is the connection to it in the Preamble to the ECHR that draws this principle into the European system. The Preamble states that the aim of the Convention is ‘to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’.7 This unleashes the imperialistic tendencies of human rights in pursuit of ensuring protection for all individuals within the ECHR system. In this book, I have sought to provide an explanation for how this journey towards expanding rights protection has been undertaken by the three interpretive communities with principal responsibility for applying the Convention. In respect of the Strasbourg Organs, I have charted how the judges have expanded the protection of fundamental rights while concurrently ensuring not to push the limits so far that they would lose state compliance with the Convention system. This has resulted in the deployment of a series of interpretive moves in judicial minimalism, justifications for expansive (and restrictive) interpretations, reconstructions of precedent and a keen awareness of context. The Strasbourg approach in this regard has generally been successful. Yet, as the implications of extraterritorial obligations have become clearer, attention on them has grown and, as this gaze has increasingly fallen on the interpretations of the Strasbourg judiciary, so has the criticism. The Contracting Parties to the Convention are bound together by a commitment to the regime and yet a deep aversion for being constrained or found in breach of an obligation. Some states, notably Turkey and the UK, have in various instances deplored the imposition of extraterritorial obligations and sought to exploit ambiguities in the jurisprudence to avoid their constraints. Increasingly innovative arguments have been made – some not entirely free from an element of bad faith on the part of the interpreter. Yet, overall, there has been an incremental acceptance that extraterritorial obligations are an inherent component of the European human rights regime and a price to pay for those who want to demonstrate commitment to it. While the primary clash has been between the ECtHR and Contracting Parties, British courts have played a valuable role in clarifying ambiguities and exploring the more nuanced policy implications of extraterritorial obligations. These judges have performed this task diligently and, with one eye on the Parliament that grants them the authority to act, have tended to take a conservative approach. In Chapter 8, I drew these arguments together into a proposal in respect of how the Convention’s extraterritorial application can be understood in a way that pays greater attention to universality. In proposing this response, I have

6 Universal

7 European

Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III). Convention on Human Rights 1950, Preamble.

220 Conclusion strained to establish the relevant gaze through which each of these interpretive communities approaches the extraterritorial question in order to demonstrate this angle in operation in their interpretive moves throughout the Convention’s history and to position the solution in light of the concerns of these communities. Yet I must recognise that I belong to an entirely different community from the three that I have discussed. As a member of an alternative community, I follow a different purposive enterprise and will therefore have different constraints on my own arguments, ones constructed by the ‘distinctions, categories or understanding, and stipulations of relevance and irrelevance’ within my community and not those of the three that I have considered.8 The result is that my bounded argument space will not be the same and, as my proposals will naturally fall within this area, they may be distinctly at odds with some or all of the other communities. Put simply, even though I have strained to address the extraterritorial question through their eyes, it is entirely possible that my proposal may be far from something that the three principal communities could ever sanction. A final word on what I have not achieved. As my focus has been exclusively on the extraterritorial application of the Convention, I have not engaged with the interesting discussions around a number of related issues. In particular, the application of the treaty to areas within a state’s territory but outside of its control is one of growing importance in modern-day Europe.9 Similarly, I have not addressed in any detail the inter-relationship between Article 1 jurisdiction, attribution and state responsibility. The Court has occasionally blurred the lines between these components, perhaps in pursuit of its purposive enterprise, and in doing so has created challenges for states working together on international endeavours to know what obligations apply to them. I have also failed to address in a meaningful way the highly relevant topic of a state’s jurisdiction over nonstate actors. In today’s world of transnational corporations, private security contractors and global non-governmental organisations, this is an area that continues to expand into new fields and merits detailed attention. Finally, most importantly, I have been guilty of ignoring a number of highly influential actors in the interpretation of the Convention: the applicants, their representatives and third parties.10 My approach has necessitated focusing on the Strasbourg Organs, Contracting Parties and national courts, as I contend that they are the only parties with the agency to render meaning unilaterally. Yet, in failing to focus on the other participants of the system, I have not made mention of their significant contribution. For instance, the functional approach that is growing in the Convention system, and beyond, is the fruit of an argument

8 Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Duke University Press, 1989) 141–42. 9 Marko Milanovic and Tatjana Papic, ‘As Bad as it Gets: The European Court Of Human Rights’ Behrami and Saramati Decision and General International Law’ (2009) 58(2) ICLQ 267. 10 This is a topic that Jane Rooney has recently examined: Jane Rooney, ‘The Democratic Function of Extraterritorial Human Rights Adjudication’ European Human Rights Law Review.

Conclusion 221 made by the applicants in Banković.11 Elsewhere, it was as an applicant state that Cypriot representatives first mooted the concern that military occupation could give rise to a vacuum in human rights protection in the 1970s.12 More commonly, litigants have driven the standards of protection through engaging with the Convention system, whether this is for the protection of irregular migrants on the high seas,13 individuals interned by a foreign state14 or families seeking answers for the death of their loved ones.15 These actors have proved relentless in engaging with the extraterritorial question, chipping away at a restrictive territorial approach and expanding its reach to the far corners of Europe and beyond. When there have been setbacks in litigation, they have pursued alternative lines of argument, developed new justifications and found compelling ways to convince the Court of the need to expand the reach of the Convention into previously untrodden territories. It is therefore perhaps to these individuals, the victims and their families, non-governmental organisations, third-party interveners and their representatives, in their relentless pursuit of justice and accountability, that the ‘seductive’ label of ‘human rights imperialist’ is most appropriate.16

11 Banković

and Others v Belgium and Others (2007) 44 EHRR SE5 [44]–[50]. v Turkey (1975) 31 DR 125, 133. 13 Hirsi Jamaa (n 4). 14 Al-Jedda v UK (2011) 53 EHRR 23. 15 Al-Skeini v UK (2011) 53 EHRR 18; Jaloud v The Netherlands (2015) 60 EHRR 29. 16 Al-Skeini (ECtHR) (n 15), Concurring Opinion of Judge Bonello [O-II39]. 12 Cyprus

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REPORTS Danish Ministry of Defence Military, Military Manual on International Law Relevant to Danish Armed Forces on International Operations (Defence Command Denmark, September 2016) International Law Commission, Draft Conclusions on Identification of Customary International Law Yearbook of the International Law Commission (2018) Report of a Committee of Privy Councillors, The Report of the Iraq Inquiry (2016), HC 264, Executive Summary UN, Committee Against Torture, General Comment No 2: Implementation of Article 2 by States Parties (24 January 2008) CAT/C/GC/2 UN Human Rights Committee, General Comment No 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004) CCPR/C/21/Rev.1/Add.13 UN Human Rights Committee, General Comment No 36, Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life (30 October 2018) CCPR/C/GC/36

232

Index Afghanistan 99, 100 American Convention on Human Rights 28 Amnesty International 104 Amos, M 58 archetype 5–6 Arold, N–L 50, 52 attribution 5 Baade, B 31 Baka, Judge 100 Bantekas, I 31 Barber, N 31 Bates, E 21–2, 75, 84–5 Besson, S 7, 132 Bhuta, N 152 Bianchi, A 2 Bingham, Lord 163 Birsan, Judge 100–101 Bonello, Judge G 10, 112, 132, 171, 200, 205 bounded argument space Contracting Parties 116–17 ECtHR 112–13 interpretive communities 47–8 Boussiakou, I 50 Bratza, N 56 Bremner, P 104 Brooke LJ 20, 141–2, 154, 156, 161, 162, 166 Brown, Lord 131, 143, 144, 145, 156, 157, 160–61, 187 Bush, GW 98–9 Callamard, A 210 ‘Charter of Human Rights’ 16 Chatterjee, C 25–6 Clarke MR 148, 149, 159 Collins J 148, 159, 161 comparative interpretation 42 Congress of Europe 16 ‘constant jurisprudence’ 86 context consideration 83–6, 202 Contracting Parties acceptance of the Convention’s extraterritorial application 137–9, 140 bounded argument space 116–17

categories of state arguments 121–2, 139–40 ceding power 115 extraterritorial derogations 134–6, 199 generating meaning 116 interpretive community 52–4 orthodox legal debate 122–5, 137 Iraq litigation 125–8 politico-legal arguments 128–9, 137 Iraq litigation 129–32 primary interpreters 38–9 unacceptable submissions 132–4 post-Iraq 134–6 Convention against Torture 29 Convention on the Rights of the Child 28 Copenhagen Declaration 203, 213 Costa, Judge 100 Cover, R 34, 47 De Londras, F 7, 8, 114 De Schutter, O 8, 106 decision ambiguity 71–3 Dickson, B 55 diplomatic and consular agents personal jurisdiction 184–6 ‘dividing and tailoring’ judicial reconstruction 105–7 personal jurisdiction 168 Dixon, R 23, 26 doctrine of the living instrument 42 ‘domestic decisions’ 162–3, 208–9 Donald, A 54 Dorf, M 65–6 Dothan, S 85, 167 Dowson, 19–20 drafting of Article 1 16–17, 20, 21, 22–3 comparison with draft UN Treaty 19, 20 move towards jurisdiction 19–21 product of the circumstances within which it was created 15–16 territory 17–18, 32 Dyson, Lord 54 Dzehtsiarou, K 7, 8, 53, 114

234 Index EComHR 62–3 ECtHR see European Court of Human Rights Edwards, S 152–3 Ekins, R 193–4, 203 enhanced justifications for decisions 76–7 demonstrating use of relevant interpretive rules 81–2 principled basis for interpretations 82–3 spatial jurisdiction 77–81 Epstein, L 51–2 European Commission of Human Rights (EComHR) ‘old system’ 62–3 European Court of Human Rights (ECtHR) Al-Skeini v UK 165, 166 criticisms of judgment 193, 194 systematisation of jurisdiction 166, 167, 168 ambiguity of judgments 112, 113 bounded argument space 112–13 expansion of human rights protections 219 extraterritorial application of the Convention 195–8 international humanitarian law, and 197, 198 interpretive community 49–52 interpretive moves 198 legitimacy of 113–14 personal jurisdiction 168–9 diplomatic and consular agents 184–6 ‘dividing and tailoring’ 168 exercise of public powers 169–75 soldiers 186–8 use of force by state agents 176–84 primary interpreter 36–7 process of interpretation 41–3 purposive enterprise 111, 113, 114 spatial jurisdiction 168, 188 effective control of an area 188–92 legal space 192–3 extraterritorial application 3–5 extraterritorial derogations 203–4 Contracting Parties 134–6 Fallon, M 135–6 Fish, S 11–12, 44, 45, 46, 47, 49, 65, 111, 115, 137, 142, 144, 180, 200 Fiss, O 34 ‘flag principle’ jurisdiction 73 Franck, T 62, 113, 133

Gerards, J 216 Goldsmith, P 120 Gondek, M 204 Greer, S 16, 82 Griffith, J 55 guiding principles for extraterritorial application 201 arbitrary distinctions 202 conservative options 203 extraterritorial derogations 203–4 context, influence of 202 interpretive communities 211 Contracting Parties 211–14 ECtHR 215–16 national courts 214–15 progressive options 204 ‘functional’ approach 204–6 proposal 206–7, 217, 219–20 ‘domestic decisions’ 208–9 negative obligations 207–9 positive obligations 209–11 universality 201–2 Hale, Lady 2, 56, 159, 160 Hampson, F 205 Happold, M 91, 100 Hart, H 31 Hedigan, Judge 100–101 Hemming, M 214 Heupel, M 212 Hodson, L 54 Hope, Lord 160, 166 , 186, 187, 196 human rights based jurisdiction 32 provisions in other human rights treaties 28–9 Human Rights Committee (HRC) 40, 109 ‘human rights imperialists’ 218–19, 221 ICCPR 23, 29, 40 ICRC 104 indeterminacy of the text 30, 31, 32, 61, 86 individual litigants secondary interpreters, as 40 Ingram, A 119, 121 International Bill of Rights 18, 19 International Committee of the Red Cross (ICRC) 104 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 29 International Covenant on Civil and Political Rights (ICCPR) 23, 29, 40

Index 235 international humanitarian law 197, 198 interpretation 34 constraints on 61–2 interpretive communities 11–12, 44–5, 48–9, 60 bounded argument space 47–8 Contracting Parties 52–4 ECtHR 49–52 interaction of 59–60 national courts 54–8 purposive enterprise 44, 45–7, 48, 64–5 interpretive discretion 43, 44, 45, 46 meaning, and 36, 37, 39, 40, 41, 60 primary interpreters 39, 41, 60 Contracting Parties 38–9 ECtHR 36–7 national courts 37–8 process of interpretation 43 ECtHR 41–3 interpretive discretion 43 secondary interpreters 39–40 individual litigants 40 interpretive departure point (X v Federal Republic of Germany) 63–4 Iraq War (second) 117–18 applying the ECHR to Iraq 118–21 see also Contracting Parties Jennings, R 25 Johnstone, I 45, 47, 61, 122, 125 Jowitt, W 30 judicial deconstruction 88 definition of jurisdiction 90–93 interpretive moves 93 demonstrating constraint 94–6 precedential deconstruction 96–8 purposive enterprise, and 98–101 regional basis of application 93 judicial minimalism 65–6, 76, 86 incremental development 66–9 purposive enterprise 74–6 retaining flexibility 69 decision ambiguity 71–3 textual ambiguity 69–71 judicial reconstruction 88, 101, 109–11 cause and effect 107–9 dividing and tailoring 105–7 legal space 101–4 public international law, role of 104–5 purposive enterprise, and 104

jurisdiction ‘term of art’ 24 understanding of the term ‘jurisdiction’ 23–4 Kerr, Lord 56, 58, 159, 161 Kershaw, I 15–16 Klabbers, J 43 Koskenniemi, M 43 Kosovo 89 Kress, K 97 Kutz, C 128 Larsen, KM 106 Lauterpacht, H 41 Laws LJ 151, 152 Lawson, R 205 Leggatt J 171, 173, 174, 175, 182, 183, 197–8 Leitjen, J 30 Lloyd Jones LJ 165, 172, 179, 182, 183, 184, 190, 193 Loucaides, Judge 96, 204 Madsen, M 74, 75, 84 Mahoney, P 32 Mance, Lord 57, 159, 173 Mann, F 26 Mantouvalou, V 27 margin of appreciation 42 Masterman, R 57 McGoldrick, D 118 meaning interpretation, and 36, 37, 39, 40, 41, 60 Merrills, J 51 Milanovic, M 7, 8, 134, 207 Miller, S 102, 215 Miltner, B 8, 9 Motuc, Judge J 10, 130 Mullender, R 46, 137 Myjer, E 37 national courts approach to systemisation 198–9 Banković judgment, and 142–5 bases of jurisdiction 142, 164 domestic decisions 162–3 jurisdiction through control 161–2 quasi-territorial jurisdiction 145–53 soldiers 158–61 spatial jurisdiction 153–8 interpretive community 54–8 primary interpreters 37–8

236 Index purposive enterprise 141, 142 quasi-territorial jurisdiction 145–50 legal authority/factual control 150–53 NATO 89, 99 negative obligations 207–9 Neuberger, Lord 58 O’Boyle, M 75, 96 Oette, L 31 ‘Operation Allied Force’ 89 Orakhelashvili, A 69 Ovey, C 56, 197 Owen J 163 Palm, Judge 100 Parliamentary Assembly of the Council of Europe (PACE) 138–9 Pedersen, MP 27 Perassi 20 personal jurisdiction 168–9 diplomatic and consular agents 184–6 ‘dividing and tailoring’ 168 exercise of public powers 169–75 soldiers 186–8 use of force by state agents 176–84 Phillips, Lord 160 physical force by state agents 176, 184 custody as jurisdiction 176–80 non-custody as jurisdiction 180–83 Popovic, D 31–2 positive obligations 209–11 primary interpreters 39, 41, 60 Contracting Parties 38–9 ECtHR 36–7 national courts 37–8 principle of effectiveness 42–3 public international law judicial reconstruction, and 104–5 public powers, exercise of 169–70 three-stage test 170–75 purposive enterprise ECtHR 111, 113, 114 interpretive communities 44, 45–7, 48, 64–5 judicial deconstruction 98–101 judicial minimalism 74–6 judicial reconstruction 104 national courts 141, 142 quasi-territorial jurisdiction national courts 145–53

Radio-Television Serbia 89 Raible, L 112 Raimondi, Judge 181 Richards LJ 149, 151 right to life 1 Rix J 131, 145, 146 Robertson, A 22 Rodger, Lord 9, 131, 144, 154, 157 Rolin 21 Rowe, P 203 Ryngaert 25, 26, 180 Sands, P 35 Sari, A 181 secondary interpreters 39–40 individual litigants 40 Sedley LJ 6, 9, 143, 154, 163 Shany, Y 7, 12, 112, 204, 205 Simpson, A 16 Simpson, G 11 Singer, J 30 soldiers jurisdiction 158–61, 186–8 spatial jurisdiction 77–81 European Court of Human Rights 168, 188 effective control of an area 188–92 legal space 192–3 national courts 153–8 Spielmann, Judge 181 state jurisdiction human rights law 26, 27, 28 public international law 24–6 state sovereignty 26 state responsibility 5 Strasbourg approach 8–10 Sumption, Lord 154, 197 Sunstein, C 65, 66, 69, 75, 111–12, 113, 201, 214 Teitgen, P–H 17, 18 textual ambiguity 69–71 Thomassen, Judge 100 Tobin, J 23 Triggs, G 25 Turmen, Judge 100–101 Universal Declaration of Human Rights 219 universality 6–7, 201–2, 219

Index 237 Vanneste, F 82 Verdirame, G 193–4, 203 Vienna Convention on the Law of Treaties (VCLT) 41–2 Waibel, M 43, 48, 49, 52 Waldron, J 5–6 Wallace, S 9, 25, 26, 134 ‘war on terror’ 3, 98–9

Watts, A 25 White, R 50, 75, 76 Wicks, E 54 Wilde, R 80, 96 Wildhaber, Judge 100 Wilson, Lord 193 ‘within their jurisdiction’ 2, 11, 17 Ziegler, K 54

238