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Home Human Rights Archive for category "Extraterritorial Application" (Page 11)

The Role of the European Convention on Human Rights in the Wake of Kiobel

Published on July 25, 2013        Author: 

Jodie KirshnerJodie Adams Kirshner is the University Lecturer in Corporate Law at the University of Cambridge and a fellow of Peterhouse College, Cambridge. Her research concerns cross-border and comparative issues in corporate law. She contributed to an amicus brief to the U.S. Supreme Court in Kiobel in support of petitioners.

SCOTUSThe decision of the U.S. Supreme Court (photo credit) in Kiobel v. Royal Dutch Petroleum has generated concerns that a governance gap will emerge for corporations that commit human rights violations abroad. As American courts become less open to extraterritorial claims, however, recognition of the global context gains importance. The current climate presents opportunities for other judicial systems to step forward. Kiobel gives the European Court of Human Rights the occasion to interpret the European Convention on Human Rights to require the right to an extraterritorial forum and counterbalance the shift that has occurred in the United States.

Article 6 of the European Convention on Human Rights offers a potential pathway to jurisdiction over extraterritorial corporate human rights claims. The European Court of Human Rights (ECHR) has already interpreted Article 6 of the Convention broadly, and some national courts that are signatories to the Convention have suggested that the article could support extraterritorial jurisdiction. Article 6 guarantees the right to a fair trial. Subsection 1 states, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . .”

The ECHR has encouraged an expansive reading of Article 6. In Delcourt v. Belgium (1970), 1 Eur. Ct. H.R. 355 (1993), the Court stated that “in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 (1) would not correspond to the aim and purpose of that provision.” It has also maintained that rights under the Convention must be “practical and effective and not theoretical and illusory.” (See, e.g., Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Artico v. Italy, 3 Eur. H.R. Rep. 1, para. 33 (1980); Mehmet Eren v. Turkey, Eur. Ct. H.R. App. No. 32347/02, 50 (2008).).

The ECHR (photo credit), furthermore, has held that, though the text does not expressly include one, the Convention encompasses a right of access to court. Read the rest of this entry…

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UK Supreme Court Decides Smith (No. 2) v. The Ministry of Defence

Published on June 24, 2013        Author: 

Last week the UK Supreme Court delivered its judgment in Smith (No. 2) v. The Ministy of Defence (judgment; BBC News report). This is a follow-up to the Smith (No. 1) case decided three years ago, with a different set of plaintiffs, but on the same issue – whether and how the European Convention on Human Rights applies extraterritorially to protect British troops abroad, specifically when British troops operate in areas not under UK control. In Smith No. 1, the Supreme Court, basing itself on Bankovic and the House of Lords Al-Skeini judgment, found that UK soldiers were not within UK jurisdiction for Article 1 ECHR purposes when they operated in areas outside UK control. A similar case, Pritchard, is currently pending before the European Court; for more background, see my case law update from last month. These cases are essentially Al-Skeini in reverse, since they concern the human rights of soldiers vis-a-vis their own government, rather than the rights of other persons that these soldiers affect through their own conduct.

The Smith No. 2 case concerned two sets of claims: one dealing with the alleged failure of UK authorities to properly equip their Challenger tanks with targeting equipment that would have allowed them to avoid a friendly fire incident, and the other dealing with various decisions of the UK authorities that allowed British soldiers in Iraq to use Snatch Land Rovers on patrol, these vehicles providing little or no protection from improvised explosive devices. The first set of claims was brought entirely under the common law, and I will not deal with it here; the second was partly based on the Article 2 ECHR substantive positive obligations of the UK to secure the right to life of its soldiers in the field.

In light of the European Court’s Al-Skeini judgment, the Supreme Court unanimously reversed its ruling in Smith No. 1, finding that the applicants were within the UK’s jurisdiction and that accordingly the ECHR applied, and by 4 votes to 3 allowed the claims to proceed to trial. The judgment is remarkable for a number of reasons.

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Update on the Extraterritorial Application of Human Rights Treaties

Published on May 21, 2013        Author: 

I’m happy to announce that my book Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy is now available in paperback (and for cheap… and even on Kindle – OUP seems to be branching out). I’ve decided to keep a sort of running update on new cases and developments here on the blog. Since the book has been published the European Court in particular has decided a number of relevant cases, chief among them of course Al-Skeini (judgment; my EJIL article), but also Catan and others (judgment; my blog post).

In this (longish!) post I’ll discuss two inadmissibility decisions, Djokaba Lambi Longa v. The Netherlands, App. No. 33917/12, 9 October 2012, dealing with the applicability of the ECHR to the ICC detention unit in The Hague, and Chagos Islanders v. UK, App. No. 35622/04, 11 December 2012, dealing with the applicability of the ECHR to the British Indian Ocean Territory, part of which is the Diego Garcia naval base. Neither is about the extraterritorial applicability of the ECHR as such, but both turn on the interpretation of the jurisdiction clause in Article 1 ECHR. I will then very briefly discuss two cases pending before the UK Supreme Court and the European Court on the applicability of the ECHR to British military personnel stationed overseas but outside areas under the UK’s effective control.

In Djokaba, the applicant, a Congolese national charged with several offences in the Congo, was transferred to the custody of the International Criminal Court in The Hague as a witness against Thomas Lubanga. He gave evidence before the ICC, but after doing so lodged an application for asylum with the Dutch authorities and also requested the ICC not to transfer him back to Congolese custody, where he feared reprisals. Thereafter followed a diplomatic ping-pong between the ICC and the Dutch authorities which is too tedious to get into here – suffice it to say that the applicant remained in ICC detention. In Strasbourg he claimed that the Netherlands has violated Article 5 ECHR on various counts because of his continued detention and the lack of review thereof.

But any examination of the merits was subject to the threshold question of Article 1 ECHR jurisdiction. In the applicant’s view, as he was located on Dutch territory he was necessarily within the Dutch jurisdiction. In the view of the Dutch government, however, the applicant was in the custody of the ICC, and hence outside the Dutch Article 1 jurisdiction.

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Grand Chamber Judgment in Catan and Others

Published on October 21, 2012        Author: 

On Friday the European Court of Human Rights delivered its Grand Chamber judgment in Catan and Others v. Moldova and Russia, nos. 43370/04, 8252/05 and 18454/06, yet another case on the ECHR’s extraterritorial application, dealing in particular with the Convention’s application to the separatist republic of Trandniestria in Moldova (link to judgment). The case is in effect a sequel to the Court’s earlier judgments on Transdniestria in Ilascu and Ivantoc, this time dealing however with a significantly different factual pattern.

The applicants were Moldovans who lived in Transdniestria and who were at the time of lodging the application pupils at three Moldovan-language schools and their parents. They complained under Article 2 of Protocol No. 1 to the Convention and Article 8 of the Convention, taken alone and in conjunction with Article 14 about the closure of their schools and their harassment by the separatist Transdniestrian authorities. The reason for this harassment was basically a policy of Russification by the Transdniestrian authorities whereby schools in the region could only operate in and teach the Moldovan (i.e. Romanian) language as written in the Cyrillic alphabet, rather than the much more commonly used Latin one. In short, the applicants’ education became embroilled in language politics, very similar for instance to those in the Balkans.

What makes this case particularly interesting is the relationship between Article 1 ECHR notion of state jurisdiction, as the threshold for the existence of (all or some) state obligations under the Convention, and the attribution of conduct under the secondary rules of the law of state responsibility. In Ilascu, paras 392-3, the Court held that

[T]he “MRT” [Transdniestria], set up in 1991-92 with the support of the Russian Federation, vested with organs of power and its own administration, remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation, and in any event that it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation. … [T]here is a continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants’ fate, as the Russian Federation’s policy of support for the regime and collaboration with it continued beyond 5 May 1998, and after that date the Russian Federation made no attempt to put an end to the applicants’ situation brought about by its agents, and did not act to prevent the violations allegedly committed after 5 May 1998.

Ilascu was notable for several reasons. First, it apparently applied the spatial model of Article 1 jurisdiction as control of an area while lowering the threshold of the needed control (the ‘decisive influence’ bit). Secondly, it completely confused jurisdiction with responsibility; it was utterly unclear from the case whether the Court considered all acts of the MRT to be attributable to Russia, apparently on the basis of a sui generis rule on attribution of conduct that hardly seemed compliant with the ILC’s work on state responsibility or the jurisprudence of the ICJ, or rather whether Russia was held responsible for failing to comply with a positive obligation to prevent human rights violations by non-state actors (the MRT) operating in an area under its jurisdiction. Third, the Court also found that Moldova had positive obligations in the MRT despite having lost control of the territory, a (human rights-friendly) ruling that in my view compromised the purely factual nature of the Art 1 jurisdictional tests for the sake of a rather vague positive obligation which did not amount to much in practice anyway.

Here comes Catan, which provided the Court with the opportunity to revisit some of these points. What distinguishes Catan and Ilascu is primarily the lapse in time with regard to the facts of the two cases, during which Russia’s control over Transdniestria arguably decreased. Moreover, unlike in Ilascu Russian authorities had no involvement in the harassment of the applicants and the interference with their right to education. The Court thus had to build upon Ilascu, and that it did, producing a rather mixed (if again human rights-friendly) outcome. In brief, it found that both Moldova and Russia retained jurisdiction over Transdniestria; that Moldova this time did comply with its positive obligations; but that Russia was to be held reponsible for a violation of Art 2 of Protocol 1, and was as a consequence liable for significant damages.

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Extraterritorial Civil Jurisdiction: Obstacles and Openings in Canada

Published on May 1, 2012        Author: 

Bruce Broomhall is a Professor at the Department of Law of the University of Quebec at Montreal, teaching mainly international and Canadian criminal law. He thanks François Larocque, Mark Arnold and others for their input.

On 18 April 2012, the Supreme Court of Canada issued a trio of decisions promising to have an important impact on how Canadian law responds to attempts at civil recovery for international law violations occurring abroad, or partly abroad.

The cases are based on issues of classic private international law, not human rights or public international law. Club Resorts Ltd. v. Van Breda dealt jointly with two cases (of plaintiffs Van Breda and Charron) asking whether an Ontario court had and should exercise jurisdiction over civil claims arising from Cuban sun vacations in which severe personal injury (Van Breda), death (Charron) and related damages were claimed. The importance of Van Breda lies in the test that the Supreme Court lays out for determining the existence of jurisdiction in a case with trans-boundary elements. The accompanying Éditions Écosociété Inc. v. Banro and Breedan v. Black are actions in defamation that examine primarily (and Van Breda also examines) the issue whether jurisdiction, once recognized, should in fact be exercised, or whether it should instead be declined on grounds of forum non conveniens. This posting looks at the former question.

Van Breda presents an assessment of the ‘real and substantial connection’ required for the exercise of civil jurisdiction under the exclusive competence over “Property and Civil Rights” that Canada’s Constitution Act 1867 (at s.92(13)) accords to the Provinces and their courts. As the Court points out, this test has been the source of confusion to litigants and judges alike. It is both a principle of constitutional law used to prevent ‘jurisdictional overreach’ by any given province (a question left aside in Van Breda), as well as a principle of private international law, typically for purposes of international jurisdictional coordination (the focus of the decision) (paras. 22ff.). [One might add that it is also the concept set out in the seminal Libman case for determining the scope of territorial jurisdiction for criminal law purposes.] The Court’s aim in reformulating the Ontario Court of Appeal’s decision in the instant case was to encourage predictability in jurisdictional determinations based on the test and so to restrict case-by-case variability. The Court identifies four connecting factors that raise a rebuttable presumption that a court has jurisdiction over a given case: that the defendant is (1) domiciled or resident in or (2) carries on business in the forum province, or (3) the tort was committed or (4) a contract connected with the dispute was made there (para. 90). The Court allows (at para. 91ff.) for courts to develop additional connecting factors in accordance with strict criteria. Nonetheless, where no listed or new presumptive connecting factors are present, “a court should not assume jurisdiction on the basis of the combined effect of a number of non-presumptive connecting factors” (para. 93).

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The European Emissions Trading System and Extraterritorial Jurisdiction

Published on April 23, 2012        Author: 

Jacques Hartmann is Assistant Professor, Department of Law, University of Southern Denmark and Fellow at the European Inter-University Centre for Human Rights and Democratisation, Venice, Italy.

The history of clashes over extraterritorial jurisdiction between the United States and the European Union (and European States) is long. On several occasions, the EU and European States have objected to the enactment and enforcement of US legislation. Good examples are European objections made in connection with the US’ Helms-Burton Act (imposing sanctions on Cuba), the D’Amato Act (dealing with sanctions on Iran) and also the Alien Tort Claims Act. This tradition might however be about to reverse itself.  The EU is itself facing mounting criticism over its decision to include emissions from foreign aviation within the European Emissions Trading System (ETS). Several States and airlines have objected to the inclusion with in the European ETS of aircraft emissions over the high seas and over foreign territory. Some States objected to these additions to the ETS even before they came into force. The most dramatic expression of such opposition came with a Joint Declaration issued in September 2011 by 21 States (including the US, Japan, India, Russia and China). The signatories declared that the EU’s plan to include extraterritorial emissions within the ETS was “inconsistent with applicable international law.” The declaration called upon the International Civil Aviation Organization (ICAO) to continue its efforts to address emissions from aviation. In addition, China and Russia suggested unilateral retaliation, whereas the US declared that it would respond with “appropriate action” if the extension of the ETS scheme went ahead. On 24 October 2011 the US House of Representatives overwhelmingly voted in favour of legislation, which prohibits “an operator of a civil aircraft of the United States from participating in any emissions trading scheme unilateral ly established by the European Union.”Also China has reportedly banned its airlines from participating in the ETS without governmental approval. The latter measures are in line with established State practice, whereby objecting States adopt so-called ‘blocking laws’, prohibiting compliance with the disputed legislation (see e.g. EC Regulation 2271/96).

On 21 December 2011, the European Court of Justice (ECJ) handed down a long awaited judgement (C‑366/10) in a case brought by a group of leading US airlines and trade associations. The claimants argued that the inclusion within the ETS of aircraft emissions over the high seas and foreign territory violated the EU’s treaty obligations and amounted to an impermissible form of extraterritorial legislative jurisdiction. The ECJ found no violation of international law. Several States have however contested the Court’s findings and a trade war may be looming. The matter at issue raises several fundamental questions concerning jurisdiction and sovereignty. The present note reviews the Court’s reasoning, providing a commentary on a matter that is likely to preoccupy international lawyers for some time to come.

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Symposium on ExtraTerritorial Jurisdiction

Published on April 20, 2012        Author: 

One of the topics that will be taught in any basic course on public international law is “Jurisdiction”. By this is meant the jurisdiction of States and as Rosalyn Higgins explains in her book Problems and Process: International Law and How We Use It, questions of State jurisdiction are questions relating to allocation of competence. The question is which State has the competence to regulate persons, property and events. Questions of jurisdiction will often arise, in the first place, in the relations between States and private persons, as those persons argue that this or that State ought not to apply its law or its judicial powers to the activities of that person. However, since jurisdiction is about the allocation of competence between States, jurisdictional disputes often, and almost inevitably, become inter-State disputes.

There were numerous inter-State disputes on jurisdiction from the 1970s till the end of the 20th century about the United States’ application of the effects doctrine to economic regulation (primarily competition or anti-trust law) and about US extraterritorial application of its sanctions laws (eg sanctions on the Soviet Union in the early 80s or on Cuba or Iran in the mid 90s). There appeared to be a lull on those types of disputes and accommodations seem to have been reached. However, the rise of international criminal law at the end of that century and the increased resort to universal jurisdiction has led to a different set of inter-State disputes about extraterritorial State jurisdiction. In this area, it is European States -the main complainants in disputes with the US – that have most often been the object of complaints of overreaching. Those complaints have been voiced (often very loudly) by African States, by Israel, by Latin American States, and also by the US. Recent developments suggest disputes over jurisdiction are not going away and are as prevalent as ever. In some contexts it is thought that the adoption of international law rules in an area of law would reduce the disputes about jurisdiction (since harmonization of substantive law means that whoever does regulate would apply the same rules anyway). But the debates surrounding the application of universal jurisdiction for international crimes shows that acceptance of common international law rules on matters of substance does not necessarily mean that there won’t be questions as to who gets to interpret, apply and enforce those roles.

Next week, EJIL:Talk! will be hosting a symposium highlighting recent developments with regard to extraterritorial jurisdiction. Contributions to the symposium will focus on recent cases in three different jurisdictions each of which raises questions about the proper scope of extraterritorial jurisdiction.

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Important Cases Against Russia before the European Court

Published on January 4, 2012        Author: 

Just before the holidays the European Court of Human Rights rendered two important decisions in cases against the Russian Federation. First, a Chamber declared admissible the second interstate application filed by Georgia against Russia (Georgia v. Russia No. 2, App. No. 38263/08, available here). The case arises out of the 2008 armed conflict between Georgia and Russia; in the words of the Court, ‘The applicant Government submitted that, in the course of indiscriminate and disproportionate attacks by Russian forces and/or by the separatist forces under their control, hundreds of civilians were injured, killed, detained or went missing, thousands of civilians had their property and homes destroyed and over 300,000 people were forced to leave Abkhazia and South Ossetia. In their submission, those consequences and the subsequent lack of any investigation engaged the Russian Federation’s responsibility under Articles 2, 3, 5, 8 and 13 of the Convention, Articles 1 and 2 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention.’

The cases raises important questions regarding the extraterritorial application of the ECHR, attribution of conduct by the separatist entities in Georgia to the Russian Federation, and the interplay between the Convention and international humanitarian law. Rather than deal with these matters in its admissibility decision, the Court quite rightly  decided to deal with them on the merits (see esp. paras. 63-68, 71-75 of the decision). Importantly, the Court noted the lack of any derogation by the two states in the context of the armed conflict. This is bound to be a big one – and it seems likely that the Chamber will relinquish its jurisdiction to the Grand Chamber of the Court. (Another big case on the extraterritorial application of the ECHR is coming up for hearing before the Grand Chamber at the end of this monthCatan and Others v. Moldova and Russia  (nos.  43370/04, 8252/05 and 18454/06). Dealing with human rights violations by the separatist Transnistrian authorities in Moldova, this is a sequel to the Ilascu case decided by the Court a few years back.)

Secon, there was the unanimous Chamber judgment in the Dubrovka theatre case – Finogenov and others v. Russia, nos. 18299/03 and 27311/03, press release, judgment). The case concerned the siege of the Dubrovka theatre by Chechen separatists in October 2002, when over 40 heavily armed terrorists equiped with explosives held almost a thousand people hostage in the theatre. The siege was (in)famously ended when the Russian authorties used an opiate gas to knock the terrorists out before storming the place, with the gas causing the deaths of 125 hostages. The families of some of these hostages lodged the application with the Court, claiming a violation of Article 2 ECHR by Russia. The Court held that there had been no violation of the Convention regarding the use of force and gas against the terrorists. It did, however, find that the rescue operation had not been well planned or implemented.

The case is very fact-specific, but I think I can say with some certainty that this will be a new leading case in the Article 2 pantheon, up there with McCann. It is notable for several developments. For example, despite Russia’s completely unsatisfactory cooperation with the Court in establishing the factual record (e.g. the documents of the Russian team that led the operation were all destroyed; Russia failed to answer the Court’s specific factual questions; Russia never disclosed exactly which gas it used, and so forth), the Court was prepared to be extremely deferential and flexible on the factual issues. Indeed, the Court almost entered an ‘IHL-mode’, quite explicitly deciding not to second-guess the Russian autorities’ decision to use force generally in order to subdue the terrorists, and their specific decision to use the opiate gas. The Court found a violation only because the medical rescue operation that followed the storming was manifestly poorly planned, with the authorities for example not even informing the doctors beforehand of the use of the gas. Some choice paragraphs are reproduced below the fold. Most importantly, the fact that the Court quite explicitly based its deferential approach on the Chechen Isayeva case dealing with the indiscriminate use of force shows much promise in providing needed flexibility in other factually complex cases that transcend conditions of normalcy, as e.g. in Georgia v. Russia. The Court awarded more than a million euros in compensation, and it is likely that Russia will appeal to the Grand Chamber – we’ll see what happens.

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