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The Power of Citizenship Bias

Published on March 23, 2015        Author: 

Cross-posted on Lawfare.

Following up on my post from last week on the report of the Intelligence and Security Committee (ISC) of the UK Parliament, which inter alia recommended that British law for the first time introduce distinctions between citizens and non-citizens for the purpose of regulating electronic surveillance, I’d like to briefly comment on another relevant development. Amnesty International last week also published the results of a major public opinion poll conducted in 13 countries, in which 15,000 respondents were surveyed on a number of questions regarding surveillance. The upshot of the poll is that there is strong opposition to US mass surveillance programs in all of the countries surveyed, and this is also how Amnesty chose to present the results (Amnesty’s press release is available here; the full results are available here; an analytical piece by Chris Chambers, one of the researchers on the project, is available in The Guardian).

What I found most interesting about the poll are the responses regarding the question whether the permissibility of surveillance should depend on the citizenship of the target. As Chris Chambers explains:

Are people more tolerant of the government monitoring foreign nationals than its own citizens?

Yes. In all surveyed countries, more people were in favour of their government monitoring foreign nationals (45%) than citizens (26%). In some countries the rate of agreement for monitoring foreign nationals was more than double that of citizens. For instance, in Canada only 23% believed their government should monitor citizens compared with 48% for foreign nationals. In the US, 20% believed their government should monitor citizens compared with 50% for foreign nationals. These results suggest the presence of a social ingroup bias: surveillance is more acceptable when applied to “them” but not to “us”.

general attitudes to surveillance

 

In every country, people were more tolerant of surveillance directed toward foreign nationals than toward citizens. Illustration: Chris Chambers

We can also look at this ingroup bias in a different way – by specifically counting the number of people who disagreed with government surveillance of citizens while at the same time agreeing with surveillance of foreign nationals. In most countries, fewer than 1 in 4 people showed such a bias, with Sweden showing the least favouritism toward citizens (approximately 1 in 9). However, the US stands apart as having the highest ingroup bias – nearly 1 in 3 US respondents believed their government should monitor foreign nationals while leaving citizens alone.

ingroup bias

The US stood out as particularly prone to ingroup bias: favouring surveillance of foreign nationals over citizens. Illustration: Chris Chambers

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Comments on the British Intelligence and Security Committee Report

Published on March 16, 2015        Author: 

Cross-posted on Lawfare.

Last week the Intelligence and Security Committee (ISC) of the UK Parliament published its much-anticipated report entitled ‘Privacy and Security: A modern and transparent legal framework.’ The Report followed an extended inquiry into UK agencies’ surveillance practices prompted by the Snowden revelations; while it concludes that the agencies have generally acted within the prescribed legal limits, it also calls for a total overhaul of the UK legislation governing electronic surveillance, which it finds to be fragmented, overly complex and confusing. For helpful overviews of the Report’s main conclusions and recommendations, see Shaheed Fatima and Ruchi Parekh on Just Security, and James Ball in The Guardian.

The ISC’s exoneration of GCHQ et al. was hardly surprising – libertarians and privacy activists have derided its members as having long gone native and being nothing more than a bunch of apologists for the intelligence agencies whom they are supposed to oversee. Liberty’s ShamiChakrabarti thus commented that ‘the ISC has repeatedly shown itself as a simple mouthpiece for the spooks – so clueless and ineffective that it’s only thanks to Edward Snowden that it had the slightest clue of the agencies’ antics,’ while The Guardian’s editorial page a tad more delicately called it the ‘watchdog that rarely barks,’ the ‘slumbering scrutineer’ and a body that ‘searches out nothing.’ So there.

Whatever the intentions behind the Report, and despite the (at times comical) level of redactions in its public version, it is still a useful document. At a minimum, it provides a reasonably clear analytical overview of the legal framework currently regulating the surveillance activities of the British intelligence agencies, as well as the relevant procedures, and provides a helpful comparison point for those looking at the same set of problems in a different system, for instance in the United States or Germany. In this post I will comment critically on some aspects of the Report that I think are especially interesting and deserving of further consideration.

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The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects: Rejoinder to Enzo Cannizzaro

Published on January 23, 2015        Author: 

This post is a continuation of the EJIL:Debate! in EJIL vol. 25: 4 between Lorand Bartels and Enzo Cannizzaro on “The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects.”

I thank Professor Cannizzaro warmly for his thoughtful reply to my article, which extends it in several interesting directions. Professor Cannizzaro’s main point is that Article 3(5) and Article 21 TEU do not add anything to the EU’s existing human rights obligations insofar as they apply to conduct with mere extraterritorial effects. In some respects I agree with him. However, I would argue that there are some gaps that these provisions plug.

I agree, first of all, that there is some conduct with mere extraterritorial effects that is already covered by the EU’s fundamental rights obligations. Most obviously, there is a Soering-inspired obligation not to remove a person to a third country in which he or she would be at risk of harm (NS v. Secretary of State for the Home Department). But this is a special case, and I do not think that it follows, as does Professor Cannizzaro, that other conduct with mere effects in third countries is also covered. There is to my mind something particular about the EU’s (or a state’s) obligations in relation to a person that is at the relevant time on its territory, and this cannot so easily be translated into an obligation to prohibit exports of death penalty drugs or not to adopt an economic embargo on third states.

At a more general level, the problem is that in practice the high level of fundamental rights protection applicable domestically cannot automatically be extended to policies with mere extraterritorial effects. As my article details, with the exception of Soering scenarios, there have not been any CJEU decisions on whether fundamental rights obligations apply to measures with mere extraterritorial effects, and while the European Court of Human Rights has dealt with this, it has done so very inconsistently (Cf the contrasting decisions in Kovačič (ECtHR, admissibility, 9 Oct 2003) and Ben El Mahi (ECtHR, 11 Dec 2006)). My suspicion is that the CJEU will avoid the problem of extending domestic levels of protection to measures with extraterritorial effects not by applying a dual standard, but rather by not applying fundamental rights obligations to measures in the first place. Read the rest of this entry…

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Jurisdiction, Attribution and Responsibility in Jaloud

Published on December 11, 2014        Author: 

In my last post on the Jaloud v. Netherlands case, I looked primarily at the bottom line of the case and what it will mean for the future. In this post, however, I would like to try to clarify the conceptual framework of jurisdiction, attribution and responsibility (which Aurel also looked at in his post) that the Court used (or should have used) in the case. The key parts of the judgment in that regard are paras. 140-155, which I will not reproduce in full here, plus the concurring opinion of Judge Spielmann, joined by Judge Raimondi.

It is clear from even a cursory read of the Spielmann opinion (as well as the concurring opinion of Judge Motoc, who writes in opposition to the two other Judges), that the judges of the Grand Chamber found the question of the relationship between the Article 1 ECHR concept of state jurisdiction, and general international law concepts such as attribution of conduct and responsibility for wrongful acts, to be particularly vexing. Judging by the language used, there must have been quite the internal debate. Judges Spielmann and Raimondi found the Court’s use of the attribution concept and its references to the case law of the ICJ (para. 95-97) and the ILC’s Articles on State Responsibility (para. 98, quoting articles 2, 6 and 8) to have been exceptionally objectionable, indeed ‘ambiguous, subsidiary and incomprehensible.‘ For the two Judges, attribution was a ‘non-issue’ in the case, which the Court should have avoided:

There was therefore no need to examine the non-issue of “attribution”, which is completely separate from the question of “jurisdiction”. More fundamentally, the Court should in any event be careful not to conflate the notions of jurisdiction under Article 1 with the concept of State responsibility under general international law. Efforts to seek to elucidate the former by reference to the latter are conceptually unsound and likely to cause further confusion in an already difficult area of law.

Contrary to the two Judges, I will try to show that attribution was, in fact, a central issue in the case, and that the Court’s approach, including references to the ILC’s work on state responsibility, was generally sound. However, I will also show that the Court could have been clearer in explaining what it was actually doing, which would have had the salutary effect of avoiding potentially confusing points for future cases. In fact, at least to an external observer, the divide between the majority and the two Judges is not as great as it might first seem, and the important conceptual points that they raise in the separate opinion can and should be adequately addressed.

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The Bottom Line of Jaloud

Published on November 26, 2014        Author: 

Following up on Aurel’s post on the Jaloud v. Netherlands case, I want to add a few brief thoughts regarding the bottom line of the judgment and what it means for the overseas military operations of European states.

First, Jaloud confirms the general trend in the European Court’s case law towards a more expansive approach to the extraterritorial application of the ECHR. Whether you think an expansive approach is a good idea or not, the trend is there, since the normative pull of universality is hard to resist, and as the Court becomes increasingly more familiar with applying the Convention to extraordinary situations. I personally feel that the judgment is correct in its basic approach to extraterritoriality, even if there is some conceptual confusion between various questions of jurisdiction and attribution, on which I will write separately. But the basic message to states is this: trying to exploit the many contradictions in the Court’s case law on extraterritoriality to deny the applicability of the Convention in this case or that will in most circumstances end in defeat. Rather than fighting a losing battle, states should focus their energies on arguments on the merits on which they are more likely to win.

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Jaloud v Netherlands: New Directions in Extra-Territorial Military Operations

Published on November 24, 2014        Author: 

Last week, the Grand Chamber of the European Court of Human Rights delivered its judgment in Jaloud v Netherlands. The case arose out of the fatal shooting of Azhar Sabah Jaloud by Dutch troops in the early hours of 21 April 2004 at a checkpoint in Iraq. The applicant claimed that the investigation into the incident was inadequate and therefore in breach of the Netherlands’ procedural obligations under Article 2 of the European Convention on Human Rights.

Jaloud is the latest in a growing line of Strasbourg cases addressing the application of the Convention to extra-territorial military operations. The Court’s jurisprudence on the subject is a source of endless fascination. Like any good thriller, its twists and turns leave the observer suspended in fearful anticipation on a never ending quest for legal certainty. Will the law stretch as far as the facts or is jurisdiction a threshold too far? Will the Court prevail against conceptual confusion? Which of its dicta is up for silent reversal? And what will be the next victim of normative conflict?

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The United States and the Torture Convention: A Memo from Harold Koh

Published on November 11, 2014        Author: 

On Wednesday and Thursday this week, the United States will appear before the United Nations Committee Against Torture for a discussion of the United States’ Third to Fifth Periodic Reports under the Convention Against Torture and Other Cruel and Degrading Treatment. If the size and membership of the United States’ delegation to the Committee is anything to go by, the US is taking the session very seriously indeed. The US delegation includes high level representation from the State, Justice, Defence, Homeland Security and other Departments of the Federal Government as well as representatives of states. The dialogue between the US delegation and the Committee will be webcast here.

One key issue that will come up in the discussion is whether the US accepts that the Convention applies to conduct  of its officials and agents beyond its territory. In the list of issues that the Committee presented to the US in advance of the submission of its report (a list that was prepared five years ago now!), the Committee asked the US to:

“Please provide updated information on any changes in the State party’s position that the Convention is not applicable at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and is not without prejudice to the provisions of any other international instrument, pursuant to article 1, paragraph 2, and 16, paragraph 2, of the Convention.”

In its report, the United States was evasive on the question of the extraterritorial application of the Convention. It stated:

“6.  . . . It should be noted that the report does not address the geographic scope of the Convention as a legal matter, although it does respond to related questions from the Committee in factual terms.”

However, it then went on to note that:

“13. Under U.S. law, officials of all government agencies are prohibited from engaging in torture, at all times, and in all places, not only in territory under U.S. jurisdiction. Under the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-163, 42 U.S.C. 2000dd (“No individual in the custody or under the physical control of the U.S. Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment”), every U.S. official, wherever he or she may be, is also prohibited from engaging in acts that constitute cruel, inhuman or degrading treatment or punishment. This prohibition is enforced at all levels of U.S. government.”

Thus, while the US was indicating that US law and policy forbid torture by US officials wherever committed, it failed to acknowledge that the treaty obligations went this far. The US delegation will no doubt be asked to clarify its position before the Committee. A recent report in the New York Times indicates that there is an internal debate in the US administration about whether to abandon the US’ previous position that that provisions of the Convention Against Torture are restricted to acts on US territory. Apparently, while State Department lawyers are  pushing for a change in this position,

“military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture . . .”

In a recent intervention in this debate, Harold Koh, Sterling Professor of International Law at Yale Law School and, Legal Adviser to the US State Department in first term of the Obama Administration, last week, wrote a “Memo to the President: Say Yes to the Torture Ban,” in Politico Magazine. Read the rest of this entry…

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A Few Thoughts on Hassan v. United Kingdom

Published on October 22, 2014        Author: 

Lawrence Hill-Cawthorne has written an excellent analysis of the European Court’s recent Hassan v. UK judgment, which I fully subscribe to and have nothing substantive to add. Rather, I wish to use this post to outline some thoughts on the practical impact of Hassan, its bottom line and possible future influence.

(1) When it comes to the extraterritorial application of the Convention, the Court has now reaffirmed that de facto physical custody will ipso facto constitute Article 1 jurisdiction, within the personal model of jurisdiction as authority and control over an individual. The Court did not seem to put any limits on this principle (and rightly so), not even the vague idea of ‘public powers’ that it invented in Bankovic and imported into the personal model of jurisdiction in Al-Skeini (cf. the Court’s finding in Hassan, para. 75 that the events took place before the UK assumed responsibility for the maintenance of security in South East Iraq, which was the basis for the ‘public powers’ in Al-Skeini). Similarly, the Court (again, rightly) focused on factual control, disregarding some of the formal arrangements under a memorandum of understanding between the UK and the US (para. 78), and finding that ‘Tarek Hassan fell within the jurisdiction of the United Kingdom from the moment of his capture by United Kingdom troops, at Umm Qasr on 23 April 2003, until his release from the bus that took him from Camp Bucca to the drop-off point, most probably Umm Qasr on 2 May 2003 ‘ (para. 80).

The bottom-line of this approach is that whenever the military forces of a European state capture any individual, no matter where that individual is located (note how the Court again, like in Al-Skeini, explicitly avoided ruling whether the territory of South Iraq was under UK control for the purpose of the spatial conception of jurisdiction (para. 75)), the Convention will apply by virtue of the personal conception of Article 1 jurisdiction as authority and control over individuals. The Convention will apply on this basis not only to detention operations in Afghanistan, but also to situations such as the French intervention in Mali, the capture of Ukrainian soldiers by Russian forces in Crimea, etc. This is fully consistent with the English High Court’s Serdar Mohammed judgment, which rejected the UK government’s attempts to confine Al-Skeini to the facts of Iraq (for our previous coverage of Serdar Mohammed, see here).

In short, European soldiers carry the ECHR with them whenever they engage in capture operations. Military legal advisers and other officials will hence inevitably have to take the Convention into account (as many have been doing anyway). Use of force operations are not so comprehensively covered – at least for the time being.

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The UK Conservative Party Proposes Changes to Human Rights Protection

Published on October 6, 2014        Author: 

For those accustomed to the debate surrounding the European Convention on Human Rights in the UK, it is a refreshing to hear a clear statement from Chris Grayling, the Secretary of State for Justice, that the Convention is “an entirely sensible statement of the principles which should underpin any democratic nation,” and this on the 14th anniversary of the Human Rights Act 1998 taking legal effect, which allowed any individual to seek redress for human rights violations directly in UK courts.

Headlines have trailed that the Secretary of State, on behalf of the Conservative Party and in advance of the UK general election in May 2015, has issued a threat that the UK will denounce the Convention and repeal the Human Rights Act unless the European Court of Human Rights changes its approach and respects parliamentary sovereignty. Leaving aside the fact that the Court does respect parliamentary sovereignty, subjecting human rights protection to the control of one nation State would be dangerous and would reverse in an instant the progress made in the setting of human rights standards in the last 60 years.

Beyond the headlines are more damning proposals, accurately summarised here – that essentially would remove the right of some individuals to hold the State to account and establish asymmetrical application of human rights dependent upon the qualities of an individual’s ‘responsibilities in society’, the seriousness of the case, and the wonderfully vague threshold of whether the case arises in an area of law that already applies human rights law.

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The Grand Chamber Judgment in Hassan v UK

Published on September 16, 2014        Author: 

The eagerly-awaited Grand Chamber judgment in the case of Hassan v UK has now been released, and its importance for anyone interested in extraterritoriality, detention and the relationship between international humanitarian law (IHL) and international human rights law (IHRL) cannot be overstated. For the first time in its history, the Court has explicitly offered its view on the interaction between IHL and IHRL and the operation of the Convention, particularly the right to liberty, in the context of an international armed conflict.

A good overview of the facts of the case and the Court’s judgment can be found here, and they will not be repeated in this post. Instead, I want to offer some initial thoughts on the Court’s reasoning with regard to Article 5 ECHR and, more specifically, its approach to treaty interpretation.

The question before the Grand Chamber was whether the internment of the applicant’s brother, which appeared to conform with the Third and Fourth Geneva Conventions, could be considered consistent with Article 5 ECHR, notwithstanding the absence of any derogation by the UK. At a very general level, the Court effectively had two options here. On the one hand, it could have followed the path it appeared to be laying in its previous case-law, particularly in Al-Skeini and Al-Jedda, and hold that, where jurisdiction exists and where no lawful derogation has been made, the State remains bound to honour its obligations under the ECHR as ordinarily interpreted. Had the Court taken this approach, the Contracting States may eventually have conceded defeat and begun derogating in extra-territorial contexts. (Incidentally, the Court continued to avoid explicitly engaging with the permissibility of extra-territorial derogations.) Instead, the Court adopted the alternative approach, interpreting the ECHR so as to leave room for the broader powers that States have under IHL. Thus, it effectively read into Article 5(1) ECHR an extra permissible ground for detention where consistent with the Third and Fourth Geneva Conventions, and it read down the requirement of habeas corpus in Article 5(4) to allow for the administrative forms of review under the Fourth Geneva Convention.

Let’s begin with a few, in my view, positive points about the Court’s approach here. First, and perhaps most importantly, the Court rejected the UK’s principal argument that IHL as the lex specialis precluded jurisdiction arising under Article 1 ECHR (para 77). To have followed this would effectively have been to displace the entire Convention where IHL applies. Instead, the Court adopted a more nuanced, case-by-case approach which looks at the specific right at issue. This enables the Court to retain its oversight function by assessing the legality of the actions of Contracting Parties through the prism of IHL.

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