Dr Douglas Guilfoyle is a Lecturer in Law at University College London. His research has focussed on the law of the sea and international and transanational criminal law. His book Shipping Interdiction and the Law of the Sea was published by Cambridge University Press in 2009. His previous EJIL Talk! posts can be found by clicking on his name in the tab on the right.
The application of the European Convention on Human Rights (ECHR) to law-enforcement operations at sea raises a number of issues concerning the scope of the ECHR’s extra-territorial application and how ECHR rights are to be interpreted and applied extra-territorially. The limited case law to date has concerned maritime migrant and narcotics smuggling, but has significant implications for counter-piracy operation in the Gulf of Aden, an issue I have explored in a recent article in the Int. & Comp. Law Quarterly (see here).
We now have a European Court of Human Rights (ECtHR) Grand Chamber authority on point, Medvedyev v France (Application no. 3394/03), which illuminates some of these issues. In Medvedyev French authorities interdicted a Cambodian vessel (inaptly named the Winner) suspected of drug smuggling on the basis of Cambodian consent; those aboard were confined aboard during the 13 day voyage into a French port. The suspects were later convicted in France of drug-smuggling offences and brought proceedings before the ECtHR challenging the legality of their detention at sea and the delay involved in bringing them before a court under articles 5(1) and (3), ECHR. An earlier ECtHR case, Rigopoulos, similarly involved a Spanish high-seas interdiction of drug smugglers and a 16-day voyage to port. In both cases the Court held that such delays, where materially impossible to avoid, did not violate ECHR article 5(3). In Medvedyev, however, a violation of article 5(1) was found. France appealed to the Grand Chamber, and the decision was handed down on 29 March 2010. The Grand Chamber held, unanimously, that the applicants were within the jurisdiction of France; upheld, by 10 votes to seven, the decision that there had been a violation of article 5(1); and denied (by nine votes to eight) the claim that there had been a violation of article 5(3). The focus here will be on the jurisdictional and article 5(1) issues.
Extra-territorial application of the ECHR
The Grand Chamber shed little new light on the ECHR’s extra-territorial application (paras 63-66). It reiterated the Banković proposition that the ECHR’s extra-territorial application based on State jurisdiction is exceptional. It did not cite any State agent authority and control cases, but did note that exceptionally “the acts of the Contracting States performed or producing effects, outside their territories can constitute an exercise of jurisdiction”. It then resorted to the rather tired line that “clearly defined and recognised” cases of extra-territorial jurisdiction at international law included consular activities abroad and jurisdiction over flag vessels. Without more it concluded that French special forces boarding the Winner constituted an exercise of jurisdiction engaging the ECHR. It is hard to fault the result, but the lack of intermediate logic is odd given the judgment’s stress elsewhere on the ordinary rule of exclusive flag State jurisdiction. What in the act of placing forces aboard a foreign vessel (with flag State consent) transforms that vessel into a space analogous to an embassy or those forces into officials similar to consular agents? The desire to avoid the issue seems creakingly obvious. Nonetheless, it now seems firmly established that exercising coercive law-enforcement jurisdiction over a foreign vessel on the high seas will bring it within ECHR jurisdiction.
Article 5(1): was detention arbitrary?
The difficulty for France arose from the fact that its domestic legislation at the time covering drug interdictions at sea was designed only to implement interdictions authorised by a flag State pursuant to the UN Narcotics Convention 1988, to which Cambodia was not a party. Nor was Cambodia a party to the UN Law of the Sea Convention 1982 (UNCLOS). The only legal basis for the French action was an exchange of diplomatic notes. The Grand Chamber’s analysis (paras 82-103) was essentially concerned with two matters: that there was clear legal authority for the action either at French law or international law; and that the relevant law satisfied a quality of “foreseeability” (ie that those to whom it was applied could have predicted its application).
On the first point the Grand Chamber noted, as above, that textually the French statute did not apply on the facts. However, it then gratuitously observed that as the vessel was not French, the nationals aboard were not French and as Cambodia was not party to any relevant treaty – there was no basis to apply French law to the vessel. All State practice in counter-drug and counter-piracy operations is to the contrary: where a flag State waives its exclusive jurisdiction, the interdicting State is competent to apply its laws to the foreign vessel. While this is generally stipulated in treaty, treaties could not grant a jurisdiction prohibited by general international law. The consent of the flag State is the vital part, a treaty being only one mode to express it.
The Grand Chamber did accept that the diplomatic note was a source of international law capable of justifying the French interdiction. The note did not, however, sufficiently clearly specify a right to detain the crew. It granted power only to “intercept, inspect and take legal action against” the ship.
Further, even had it dealt with the crew expressly, the note would not have met the “foreseeability” criterion, giving the suspects notice they might be subject to French law. In fact, only a bilateral or multilateral treaty could ever suffice in such cases to give adequate notice and prevent the application of foreign law being arbitrary (para 100).
It is instructive to contrast the Grand Chamber’s approach with the first ECtHR judgment of 2008. Both essentially agreed that the diplomatic note was the governing legal text and that it was deficient for not expressly authorising the crew’s detention. However, as regards the requisite “quality” of the law they focussed on different things. While the Grand Chamber focussed on the standard of foreseeability, the Court at first instance was more concerned with procedural safeguards. The Court in 2008 held that that detention was arbitrary as both the invoked provisions of French and international law failed to: “regulate the conditions of deprivation of liberty on board ship, and in particular the possibility for the persons concerned to contact a lawyer or a family member. Nor do they place the detention under the supervision of a judicial authority” (para 61). Similar concerns are found in the eight-judge partial dissenting opinion of Judge Tulkens et al in the Grand Chamber arguing for quite a strict application of articles 5(1) and (3) to maritime interdictions, especially regarding judicial supervision of detention, notification of detention to family members and access to legal advice – all of which were apparently made available at sea in Rigopolous (para 5).
An optimistic reading of Medvedyev suggests that the standard to be met for article 5(1) foreseeability is something close to the UNCLOS piracy provisions. Indeed, the Grand Chamber laments that the international community has not concluded a general instrument providing an exception to flag State jurisdiction and universal jurisdiction over drug smuggling in similar terms to the law of piracy (para 101). European States conducting counter-piracy operations might thus feel reasonably confident that they have legal authority to detain suspects and have more than usual latitude in bringing such suspects “promptly” before a judge.
This may, however, be overly optimistic. There is a clear strain of thought in the 2008 judgement and the Grand Chamber’s eight-judge partial dissent that even on the high seas judicial supervision of detention, communication with family and access to a lawyer are indispensible guarantees. Indeed, the Grand Chamber judgement does not expressly indicate anywhere that “foreseeability” was the only reason France’s appeal failed. It could thus remain open to the Court in future cases to apply these further article 5 criteria in addition to foreseeability.
On any view, the bad news is that the relatively common practice of ad hoc interdiction authorised by diplomatic note cannot, it seems, satisfy article 5(1) under any circumstances.
The partially dissenting opinion of Judges Costa et al makes a number of excellent points in this regard. Their essential view is that a certain realism is required when considering international cooperation to suppress drug trafficking and maritime operations thousands of miles out to sea. First, the Winner’s crew obviously knew what they were doing was wrong and could result in criminal punishment. Second, interpreting a diplomatic note governed by public international law as strictly as one would a domestic statute was unwarranted. Third, it was in any event artificial to hold that authorising legal proceedings against the ship did not authorise proceedings against the crew as it is “scarcely possible to dissociate the crew from the ship itself” on the high seas. This would appear a very sensible view of how a regional human rights court “which operates in the general field of public international law” should approach extra-territorial issues and give effect to the value of international co-operation (as expressed in ECtHR case law).
While something of a mixed blessing, the decision can be seen as generally supportive of maritime law enforcement operations – so long as there is an underlying treaty that clearly contemplates criminal sanctions. Nonetheless, States would be wise to contemplate what practical measures could be taken to ensure judicial supervision of detention at sea and to allow suspects’ families to be informed and even for legal advice to be provided. There are clearly many ECtHR judges who would apply the Strasbourg case law on point strictly, irrespective of the practical challenges that could present in many maritime law-enforcement operations.