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Home EJIL Analysis Waiting for the Als…

Waiting for the Als…

Published on June 6, 2011        Author: 

This week will mark a full year since the Grand Chamber of the European Court of Human Rights held oral hearings in Al-Skeini and Al-Jedda (see my preview here) – and still no judgment(s). I’m pretty sure that’s some kind of record. And so we wait…

In all fairness to the Court, the probable reason for the delay is that other cases have popped up at the same time, cases which overlap to a significant extent with Al-Skeini and Al-Jedda, and which therefore call for a coherent and systematic solution. Think for example of Nada v. Switzerland, heard only a few months ago, and like Al-Jedda dealing with Security Council sanctions. Also, later this month the GC will be holding hearings in Hirsi v. Italy, in which at issue is the extraterritorial application of the ECHR to illegal immigrants intercepted on the high seas by Italian warships (cf. Medvedyev v. France). It’s no wonder the Court is taking its time, and of course there may be quite a bit of disagreement among the judges as to how to deal with these very sensitive matters.

And so, while we’re waiting for the Als, I thought I might engage in some shameless self-promotion (and when have I ever missed an opportunity to do so?). My book on the Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy is about to come out with OUP, and to good bookstores near you. As it would only be fair for my bank account to soon start overflowing with royalties, I thought I might entice potential readers with the following extract from pp. 154-160 of the book, dealing with the so-called ‘embassy exception’ for the extraterritorial application of the ECHR.

Recall that the House of Lords in Al-Skeini held that the ECHR cannot apply to five of the applicants killed in Basra by UK troops on patrol, as Iraq was outside the ECHR’s espace juridique. However, the ECHR did apply to the sixth applicant, Baha Mousa, who was killed by UK soldiers while in detention, as a UK military prison in Iraq supposedly had a special status in international law, a status analogous to an embassy. We’ll (soon?) see what the European Court does with this in Al-Skeini, but here are some thoughts of my own:

——————————————————————————————————————–

In order to limit as much as possible the scope of the ECHR’s extraterritorial application, the European Court in Bankovic held that such application can be justified only exceptionally, supposedly on grounds of general international law. One of the many problems with this holding is that it contradicted the prior case law of the Convention institutions, which the Court was now forced to ‘clarify’, rather than explicitly depart from. It thus said the following:

Additionally, the Court notes 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 and on board craft and vessels registered in, or flying the flag of, that State. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant State.[1]

Note, first, that the Court here speaks about acts of diplomatic and consular agents, not diplomatic and consular premises, as the supposed ‘embassy exception’ was interpreted by UK courts. Even so, this paragraph is doubly wrong. First, to the extent that it claims to restate the prior case law of the Strasbourg institutions, it actually provides an anachronistic reinterpretation of these cases, as we will now see. Secondly, to the extent that it argues that public international law recognizes some sort of special or exceptional exercise of state jurisdiction over embassies, ships, or aircraft, it is incorrect, and again mixes up the various meanings of the word ‘jurisdiction’ and accordingly the various concepts of jurisdiction in international law.

Let us first take a look at the case law—the case law being that of the now defunct European Commission, since the Court itself has to my knowledge never taken up an ‘embassy’ case. Perhaps the first such case, decided in 1965, was X v. Federal Republic of Germany,[2] which dealt with several complaints made by a German national residing in Morocco against the conduct of German diplomatic and consular officials there. In that case the Commission gave the briefest consideration to the issue of extraterritorial application, in the following terms:

… in certain respects, the nationals of a Contracting State are within its ‘jurisdiction’ even when domiciled or resident abroad; […] 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.[3]

As I have argued above, the nationality of the victim of a human rights violation, on which the Commission may have relied, should have no bearing on the question of extraterritorial application.[4] On the other hand, the Commission’s second sentence might be taken as regarding as relevant the supposedly special nature of diplomatic and consular agents. Ten years later, in its first decision on northern Cyprus,[5] the Commission developed on its holding in X v. Germany:

The Commission further observes that nationals of a State, including registered ships and aircraft, are partly within its jurisdiction wherever they may be, and that authorised agents of a State, including diplomatic and 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.[6]

Again the Commission refers to the relevance of nationality, now subsuming registered ships and aircraft under that heading. More importantly, however, it says that the authorized agents of a state, including, but not limited to its diplomatic and consular agents, remain under the state’s jurisdiction, and can bring under its jurisdiction those persons over which they exercise authority. In other words, the Commission adopted a personal, rather than spatial conception of Article 1 ECHR jurisdiction, which it thought applicable to all state agents. This became the constant jurisprudence of the Commission.[7]

Viewed as a whole, the Commission’s jurisprudence gave little weight to the supposedly special nature of diplomatic or consular officials, or of diplomatic and consular premises, for the purpose of establishing state jurisdiction within the meaning of Article 1. Nor does general international law, for that matter. It is true that diplomatic and consular officials are permitted to exercise certain public functions over individuals while in the territory of the receiving state—from issuing visas and entry permits, to protecting their nationals abroad. But the only reason why they can do so is because the receiving state has consented to their presence. In times past, diplomatic and consular officials in certain non-Western states had far greater powers under the rubric of consular jurisdiction, which entailed, for example, their exclusive capacity to try their own nationals for offences committed in the host state. Even then, however, this capacity was based on the host state’s consent through so-called capitulations or unequal treaties.[8] In modern international law, which is premised on the sovereign equality of all states, the role of diplomatic and consular officials is far more limited.

Either way, it is entirely misleading to say that customary law recognizes the ‘special’ nature of the extraterritorial exercise of state jurisdiction by these officials. There is nothing special about it, except that it is regularized, in the sense that a defined set of customary and treaty rules, agreed upon in advance, applies to these officials once the territorial state gives its consent. But the basis for their acts is still exclusively in the consent itself. The territorial state can withdraw its consent at any time, or can provide consent which is much wider in scope, for example by inviting a foreign military intervention, or by allowing a foreign power to run a military prison. As with the case of effective control over territory generally, this consent is only relevant for assessing whether the extraterritorial act of a foreign state is lawful or not, i.e. whether it violates the sovereignty of the territorial state, but it has no bearing on the fact of the extraterritorial exercise of state power, which may affect individuals in the territorial state. Again, there is simply no valid explanation as to why consent by the territorial state should matter for the purposes of establishing Article 1 ECHR state jurisdiction.[9]

On the other hand, it is true that both customary and conventional international law provide for a limited immunity of diplomatic and consular officials, and diplomatic and consular premises, from the host state’s jurisdiction.[10] And, of course, the host state may well decide to grant similar immunities to other foreign agents on its territory, as is often the case, for instance, with foreign troop contingents and military bases, the deployment of which frequently requires the conclusion of a status of forces agreement that may provide for various privileges and immunities.[11] Does this mean that even though they are present in the host state’s territory, or more precisely a territory under its control, these officials and premises are not actually within the host state’s jurisdiction, within the meaning of the relevant human rights treaties?

The short answer is no. To develop that, let us take a closer look at the immunity rules of diplomatic and consular law. For example, Article 22 of the Vienna Convention on Diplomatic Relations provides that the premises of a diplomatic mission shall be inviolable; that they may not be entered by the agents of the receiving state except with the consent of the head of mission; that they will be immune from search, requisition, or execution; and that the receiving state has a special duty to protect them from third parties. With respect to diplomatic agents, Article 29 of the Convention provides that their persons shall be inviolable, while Article 31 stipulates that they shall be immune from the criminal jurisdiction of the receiving state, as well as from civil jurisdiction except in certain cases, such as disputes regarding private immovable property. In any event a diplomatic agent enjoys immunity from execution.

However, pursuant to Article 41(1) of the Convention, ‘[w]ithout prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.’ Article 41(3) further provides that ‘[t]he premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State’.

So, for example, are the Serbian ambassador to the United Kingdom and the Serbian embassy in London within the UK jurisdiction for the purposes of Article 1 ECHR or the relevant jurisdiction clauses of other human rights treaties? Or are they rather within Serbian jurisdiction? Let us consider the following (purely hypothetical!) examples:

(1)  The Serbian ambassador, while acting in his official capacity and under authorization from the Serbian government, kills somebody in London; was the victim of that deprivation of life within UK or Serbian jurisdiction, and could his family file an application against either the UK or Serbia with Strasbourg?

(2)  The Serbian ambassador, again while acting in his official capacity, kills someone on the premises of the Serbian embassy in London; did, for instance, the UK have the positive obligation to secure the right to life of the victim, even though he was present within the Serbian embassy?

(3)  Conversely, the Serbian ambassador, now a complete innocent, is killed by some crazy person while on a stroll in Hyde Park; can his family file an application against the UK for failing to secure his right to life?

To address these scenarios, it is again important to recall the various meanings that the word ‘jurisdiction’ can have in international law. The ‘jurisdiction’ from which diplomatic agents have immunity within certain limits is the jurisdiction to enforce, the state’s authority to enforce the laws that it has previously prescribed. However, diplomatic agents do not have immunity from the receiving state’s jurisdiction to prescribe—they must obey and comply with applicable domestic law. On the other hand, our jurisdiction—the state jurisdiction referred to in human rights treaties—is neither of these. Rather, it refers to state control through its agents over territory, or perhaps a place, or maybe even an individual.[12]

So, to look at example (1), if the Serbian ambassador were to kill a Londoner, the victim would certainly be within the UK’s jurisdiction, as the killing took place in London, an area under which the UK has effective overall control. The victim would only be within Serbia’s jurisdiction if we consider that jurisdiction can also arise from the authority and control exercised by state agents over an individual, even if that control is exercised in an area outside the state’s control. This is of course the personal rather than spatial conception of jurisdiction, the model which I will be examining shortly in some detail. However, whatever the general validity of that model, it seems to me to be perfectly irrelevant whether the killing was committed by a diplomatic agent, such as the Serbian ambassador, or by any other authorized agent of Serbia, i.e. a person whose acts are attributable to it.

Now, if the victim of the killing was within the UK’s jurisdiction, this means that the UK had a positive obligation to secure the right to life of the victim. Normally, this obligation has two aspects: the UK would have to do all it could to prevent the killing from taking place, and if it was nonetheless unable to do so, it would have to investigate the crime and prosecute the person responsible.[13] On the other hand, Article 29 of the Vienna Convention provides that ‘[t]he person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention’, while Article 31 exempts diplomatic agents from the territorial state’s criminal jurisdiction. Imagine, therefore, that under the observant gaze of UK police officer, the Serbian ambassador accosts his victim on a London street, holding a gun in his right hand, while carrying in his left hand a sign saying ‘I am the Serbian ambassador, I am acting in my official capacity, and my person is inviolable.’ Would the police officer have the positive obligation to tackle or maybe even shoot the ambassador to prevent the killing from taking place?

This situation is one of apparent norm conflict, with the ECHR commanding the UK to prevent the killing, and the Vienna Convention prohibiting it from taking any practical measures in doing so.[14] This norm conflict can perhaps be avoided. Thus, we could say either that the ECHR positive obligation to prevent the killing should be read down so that the UK does not have to act in such a way as to violate its other international obligations by infringing on the ambassador’s person, or that it is the Vienna Convention that should be read down so that a limited exception is carved out of its prohibitions, allowing the authorities of the receiving state to prevent diplomatic agents from committing imminent unlawful acts (as a matter of policy, if not the treaty text, the most reasonable solution).[15] Alternatively, if such a reading down of either treaty is impossible, then we would have an unresolvable norm conflict on our hands—whatever the police officer did, the UK would violate one of its international obligations.

Turning now to example (2), if the Serbian ambassador killed someone in the Serbian embassy, could the victim now be said to be within Serbian jurisdiction? If we consider that Article 1 ECHR jurisdiction extends to control over places, and not just large areas of territory, à la Al-Saadoon, then one could say yes to that question. But again, the fact that the premises in question are an embassy to me seems to be perfectly irrelevant. If we recall for a moment the example of the CIA black site in Lithuania, it would seem entirely arbitrary to say that a person detained in the US embassy in Vilnius would be within US jurisdiction, but that a person detained at the Vilnius riding school black site a few miles away would not, just because the former is a diplomatic mission. Not only would such a position be devoid of any broader principle, but it would manifestly open the door to abuse.

But what about the positive obligations of the host country? If, say, UK police officers stationed near the Serbian embassy in London heard loud screaming coming from the embassy, with the poor victim shouting at the top of his lungs that he was being tortured inside, would the UK have a positive obligation under the ECHR to put an end to the crime, by entering the embassy by force if necessary, as it would in all other circumstances? One possible answer is that since the Serbian embassy in London is within Serbia’s jurisdiction, it would be outside the UK’s jurisdiction, and therefore that the UK would owe no positive obligations to persons in it. However, recall that jurisdiction need not necessarily be exclusive. There is to my mind nothing contradictory in saying that the Serbian embassy in London is a place under Serbia’s control, and therefore within its jurisdiction, but that this place is located in an area under UK control, and therefore also within the UK’s jurisdiction. And if this so, then just as with example (1) we are faced with an apparent norm conflict between the UK’s obligations under the ECHR and its obligations under diplomatic law.[16]

As for example (3), that the Serbian ambassador to the UK is immune from UK jurisdiction in the sense that the UK may not subject him to criminal proceedings, detention, or arrest, does not mean that he is actually not within the UK’s jurisdiction for the purposes of Article 1 ECHR. If he were actually to be killed while taking a walk in London, the UK would not only have an obligation to prevent and investigate his death under the Vienna Convention—it would also have such an obligation under Articles 1 and 2 ECHR.

These scenarios could of course be considered to be quite fanciful. After all, aside from the occasional traffic or hunting accident, ambassadors do not normally go about killing or torturing people. These examples do, however, convincingly expose the sheer folly of considering either diplomatic and consular agents, or the premises from which they operate, as somehow being ‘special’ for the purposes of establishing state jurisdiction under human rights treaties.[17] These agents are not distinguishable by their function from all other state agents, nor are these premises different from other places under state control. We should also not forget that states may grant similar immunities to foreign military forces or other agents. Nor, consequently, does an analogy between an embassy and any other place, such as a military prison in Al-Skeini, make any sense whatsoever. It is manifestly nothing more than a device used to narrow extraterritorial application to those situations which we substantively consider to be morally intolerable, such as the abuse and killing of a defenceless prisoner, while rejecting extraterritorial application in cases which are not so black and white.


[1] Bankovic, para. 73.

[2] X v. Federal Republic of Germany (dec.), App. No. 1611/62, 25 September 1965, 8 Yearbook of the European Convention on Human Rights 158. See also Chapter III, note 134 and accompanying text.

[3] Ibid., at 168.

[4] See above, Chapter III, Section 5. See also below, Section 3.D.3.

[5] Cyprus v. Turkey (dec.), App. Nos 6780/74 and 6950/75, 26 May 1975.

[6] Ibid, at 136, para. 8.

[7] See X v. United Kingdom (dec.), App. No. 7547/76, 15 December 1977, concerning the acts of British consular officials in Jordan. Though the application was held to be manifestly ill-founded, the Commission thought that the applicant was within UK jurisdiction even though he was outside UK territory:

It is clear, in this respect, from the constant jurisprudence of the Commission that authorised agents of a State, including diplomatic or consular agents, bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property. Insofar as they affect such persons or property by their acts or omissions, the responsibility of the State is engaged.

See also WM v. Denmark (dec.), App. No. 17392/90, 14 October 1993; Gill and Malone v. The Netherlands and the United Kingdom (dec.), App. No. 24001/94, 11 April 1996. See further below, Section 3.

[8] See generally C. Bell, ‘Capitulations’, as well as P. Czubik and P. Szwedo, ‘Consular Jurisdiction’, both in Max Planck Encyclopedia of Public International Law, available at <http://www.mpepil.com>, and the sources cited therein.

[9] See above, Section 2.C.1.

[10] See generally H. Fox, The Law of State Immunity (Oxford University Press, 2nd edn, 2008), at 665 et seq.

[11] See generally P. Conderman, ‘Status of Armed Forces on Foreign Territory Agreements (SOFA)’, in Max Planck Encyclopedia of Public International Law, available at <http://www.mpepil.com>.

[12] See above, Chapter II, Section 2.

[13] See generally A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart Publishing, 2004), at 7 et seq.

[14] See above, Chapter III, Section 9.

[15] In fact, this is what the ICJ did in the Tehran Hostages case, where it remarked that:

[n]aturally, the observance of this principle [of inviolability] does not mean—and this the Applicant Government expressly acknowledges—that a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime.

United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, ICJ Reports (1980), 3, at 40, para. 86.

[16] See also M. Shaw, International Law (Cambridge University Press, 6th edn, 2009), at 754; E. Denza, Diplomatic Law (Oxford University Press, 3rd edn, 2008), at 150: ‘In the last resort, however, it cannot be excluded that entry without the consent of the sending State may be justified in international law by the need to protect human life.’

[17] Similarly, see Zimmermann, above note 52, at 759–60.

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13 Responses

  1. wilhelm canaris

    Just a brief remark having seen the case of Hirsi v. Italy quoted close to Medvedyev v. France. In the later the applicants were considered within the jurisdiction of the Respondent State under Art. 1 of the ECHR even if they were detained, while at Sea, on the boarded Cambodian Vessel (and not on the French boarding warship). Accordingly Medvedyev is only apparently a decision on de iure inclusion of warships within the jurisprudence of a Flag State and rather a matter of control of individuals on a boarded vessel. Hirsi raises different issus to include “de iure” jurisdiction based on domestic provisions setting a warship equal to the territory of the State (mainly with the purpose of applying criminal law and administraive regime of the navigation). On the opposite, if domestic provisions may not de jure determine an extension of article 1 of the ECHR (and jurisprudence of State’s outposts allows exception), Hirsi will require an assessment on de facto control over migrants in a situation of distress in which control was really weak (ineffective?) because intercepted migrants were taken on board in an overcrowded situation eventually (di)stressing Flag State jurisdiction perhaps beyond the breaking point.

  2. Umberto

    @Wilhelm Canaris the control may have been weak but Italian authorities maintained that they tried to identify migrants on board and inform them of their right to seek asylum and eventually they pushed them back to Libya with the assurances of the Libyan government. Effectively Italian politicians who have been under attack by NGOs have tried to justify their action and in doing so they implicitly accepted that the principle of non-refoulment applied extra-territorially.

  3. wilhelm canaris

    Umberto, what makes (apart those stupid remarks by politicians) Hirsi different from those hundreds of cases in which European warship embark migrants in distress a sea and then disembark them in Yemen or even worse in Somalia. Perhaps the principle of non refoulement applies extraterritorially only in the Mediterranean and when you rescue someone and you disembark him later on the coasts of Puntland you can be so proud to inform the media (the migrant will never find his way to the ECtHR). Perhaps what is going to be decided in the Hirsi case will reflect on SAR worldwide: if the Court will not run on the blade in order to maintain obligation to rescue within reasonable burden for the State intervening in a SAR situation will prefer not to get the migrants on board (when they are swimming alongside a warship they are not technically within the jurisdiction of the State). I fear the non refoulement principle will kill the obligations to rescue.

  4. Umberto

    In my opinion the obligation to rescue and not to be refouled are complementary to one another and they have in common the need to avoid individual human rights to be violated (such as the right to life and/or protection against inhuman and degrading treatment). I see your point but arguing in favour of a limited territorial application of non-refoulement would be at odd with the aforementioned rights and the reason why there is an obligation to rescue migrants at sea and a SAR area stems from a more general need to guarantee that certain fundamental rights are universally protected territorially and extra-territorialy as long as it is possible to do so. Thus, it would follow that states have an obligation to rescue them and respect non-refoulement and in fulfilling that obligation they effectively exercise their jurisdiction. The Court in different circumstances has ruled that effective control and authority over individuals is of the essence in order to establish said jurisdiction. That said the object and purpose of the Refugee Conv would be undermined by a strict territorial application of non-ref that arguably can be seen as a peremptory norm of IL, which would apply erga omnes and everywhere.

  5. One should keep in mind that the word “jurisdiction” is malleable when one realizes that extraterritorial prescriptive jurisdiction can be based on objective territorial, nationality, protective, and universal jurisdiction. Who says that the word must relate merely to enforcement jurisdiction? A state can “control” its nationals through exercise of prescriptive nationality jurisdiction, so why focus on the victim of a different nationality with respect to state obligations to treat persons a certain way when they are within its “jurisdictional” reach?
    I suppose that the developments re: the ICCPR are relevant — persons within the “effective control” of a state or its personnel are within its “jurisdiction.” Thus, the U.S. Executive is in error when claiming that the ICCPR does not apply outside the United States. Of course, U.N. 55(c) and 56 human rights responsibilities are “universal” in any event and are informed by the ICCPR (and for some, by the European Convention).
    Bush Administration claims were particularly in error — see
    http://ssrn.com/abstract=1331159

  6. p.s. The United Nations, its organs, and its members are bound to universally effectuate (respect and observe, and not violate) human rights. The U.N. Charter obligations override inconsistent treaties. U.N. art. 103. See http://ssrn.com/abstract=1710744

  7. Umberto

    I very much agree with jpaust and as he said previous case law may prove to be decisive for instance in Hirsi&others v. Italy where they will discuss the extraterritorial application of non-refoulement in regard to the ECHR

  8. [...] here for the Court’s press release, here for Adam Wagner’s recent post on the subject, and here for the European Journal of Internal Law blog’s detailed [...]

  9. [...] Ces deux longs arrêts étaient attendus avec une grande impatience (v. ainsi Marko Milanovic, « Waiting for the Als… », 6 juin 2011 et « Grand Chamber Hearings and Preview of Al-Skeini and Al-Jedda », 9 juin [...]

  10. [...] took place in a UK military prison, which (I kid you not) was somehow analogous to an embassy (more on that here). As for the other five, they were held not to have been within the UK’s jurisdiction as the ECHR [...]

  11. [...] Ces deux longs arrêts étaient attendus avec une grande impatience (v. ainsi Marko Milanovic, « Waiting for the Als… », 6 juin 2011 et « Grand Chamber Hearings and Preview of Al-Skeini and Al-Jedda », 9 juin [...]