Update on the Extraterritorial Application of Human Rights Treaties

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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.

The Court (unanimously) found as follows:

73.  The applicant was brought to the Netherlands as a defence witness in a criminal trial pending before the International Criminal Court. He was already detained in his country of origin and remains in the custody of the International Criminal Court. The fact that the applicant is deprived of his liberty on Netherlands soil does not of itself suffice to bring questions touching on the lawfulness of his detention within the “jurisdiction” of the Netherlands as that expression is to be understood for purposes of Article 1 of the Convention.

74.  It is however the applicant’s case that now that he has given his testimony, his continued detention by the International Criminal Court lacks a basis in law. The vacuum thus created can be filled only by the Netherlands legal order, in which the Convention is directly applicable.

75.  The Court finds that as long as the applicant is neither returned to the Democratic Republic of the Congo nor handed over to the Netherlands authorities at their request, the legal ground of his detention remains the arrangement entered into by the International Criminal Court and the authorities of the Democratic Republic of the Congo under Article 93 § 7 of the Statute of the International Criminal Court. This is reflected in Trial Chamber I’s Order of 1 September 2011 and its Decision of 15 December 2011 (see paragraphs 23 and 24 above), which make it clear that the International Criminal Court is waiting to comply with its obligation under Article 93 § 7 (b) of its Statute to return the applicant to the Democratic Republic of the Congo once the reason for his presence on its premises has ceased to exist. There is thus no legal vacuum.

Note how the Court here is confusing Article 1 jurisdiction with the legal basis or authority for the applicant’s detention. The two are not the same. That the Netherlands has through a treaty and its domestic legislation consented to the presence of an international court and a detention unit on its territory, with the personnel of that court enjoying privileges and immunities and its premises inviolability, does not mean that the persons detained by that court on the territory effectively controlled by the Netherlands are outside its jurisdiction. Just imagine if say the ICC went rogue, and its investigators started torturing persons in their custody, or refused to accord them basic fair trial guarantees – would we still say that these persons are not within Dutch jurisdiction, and that the Netherlands has no human rights obligations towards them?

In my view, any person located in a territory under the state’s control are within that state’s jurisdiction. (For a more detailed examination of the similar position of embassies etc see here). That does not mean, however, that the detention is attributable to the state of the Netherlands. No – the applicant was detained by the ICC, and that conduct was attributable to the ICC as an international legal person. Rather, the Netherlands allowed another actor to exercise such authority in a territory under its control, and it hence has a positive obligation to secure the human rights of any person in that territory. That obligation is one of due diligence, of a state having to do all it could be reasonably expected to do, and is to be interpreted in light of other applicable rules of international law. But this requires the examination of the merits of the case, and on the merits it is likely that the Netherlands successfully discharged its positive obligation.

Now, if the result of the case would have been the same, you might accuse me of being a nitpick in disagreeing with the Court’s approach. But no – the difference is actually fundamental. The Court’s approach is not only conceptually confused, but it leads to perverse consequences as a matter of policy. Just replace the ICC with a military base of another state operating on Dutch territory with Dutch permission, and say detaining individuals captured in a remote theatre of war, and see where the Court’s reasoning leads you. Or take the example of CIA black sites in say Poland or Lithuania – that these states consented to the US running a detention facility on their territory did not, in my view, remove the detained individuals from the territorial states’ jurisdiction. (Note that this does not mean that the US did not simultaneously have jurisdiction over the same individuals as well, for the purposes of other human rights treaties to which it is a party).

This neatly brings us to the case of the Chagos Islanders and the British Indian Ocean Territory. The largest island of the Chagos archipelago is Diego Garcia, site of a joint UK and US military base which is of vast strategic importance for US operations in the Indian Ocean and beyond. Until 1965, BIOT was part of the then British possession of Mauritius, to which the ECHR was extended by UK declaration on the basis of the colonial clause. In order to make way for the construction of the military facility on Diego Garcia, the UK split off BIOT from Mauritius, which became independent in 1968. Mauritius is today protesting the splitting off of BIOT, claiming that it was contrary to the principle of self-determination and arguing that it remains the rightful sovereign.

The UK proceeded to depopulate the islands, transferring some 1-2,000 of their inhabitants to Mauritius and the Seychelles, under the pretence that they were merely temporarily resident in the Chagos Archipelago. The UK government later acknowledged that the deportation was unfortunate and provided a limited amount of compensation. From 1998 onwards a number of Chagos Islanders living the UK challenged the ban on their return to the islands, with mixed success. The history of the litigation is complicated and will not be canvassed here; the last word so far is the 2008 judgment of the House of Lords which by 3 votes to 2 upheld the 2004 Orders in Council which re-instated the (previously quashed) ban on the islanders’ return.

Most of the domestic litigation centred on issues of UK public law and the scope of the relevant principles of judicial review. What interests us here, however, is the conformity of the deportation and the subsequent ban on resettlement with the ECHR. Here the case essentially turned on the interaction between the Article 1 ECHR jurisdiction clause and the colonial clause in Article 56, which allows states parties to extend the application of the ECHR to territories for whose international relations they are responsible (the classical piece on this problem is a British Yearbook article by Louise Moor and the late Brian Simpson, available here).

The deportation itself was outside the scope of the UK judicial review proceedings, and deadlines for raising that claim have long lapsed. As for the ban on resettlement, the ECHR, applicable within the UK domestic legal system by virtue of the Human Rights Act 1998, was not the object of significant argument between the parties and ultimately merited only a couple of paragraphs in the House of Lords judgment. In the words of Lord Hoffmann (paras. 64-65):

I do not think that the Human Rights Act 1998 has any application to BIOT. In 1953 the United Kingdom made a declaration under article 56 of the European Convention on Human Rights extending the application of the Convention to Mauritius as one of the “territories for whose international relations it is responsible”. That declaration lapsed when Mauritius became independent. No such declaration has ever been made in respect of BIOT. It is true that the territory of BIOT was, until the creation of the colony in 1965, part of Mauritius. But a declaration, as appears from the words “for whose international relations it is responsible” applies to a political entity and not to the land which is from time to time comprised in its territory. BIOT has since 1965 been a new political entity to which the Convention has never been extended. …  If the Convention has no application in BIOT, then the actions of the Crown in BIOT cannot infringe the provisions of the Human Rights Act 1998.

Thus, for the House of the Lords the ECHR could not apply to BIOT, because the UK’s previous Article 56 declaration with regard to Mauritius had lapsed, and because no new declaration was made in respect of BIOT, a new political entity, albeit a territory under British sovereignty.

The case then went on the European Court. Readers will recall that there is clear contradiction between the Court’s interpretation of Article 1, no matter how confusing on occasion, which allows for the applicability of the ECHR to foreign territories under a state’s effective overall control, and the colonial clause in Article 56, which on first glance allows states to exclude parts of their own territory from the ECHR’s ambit. Thus, for example, per Loizidou Turkey had no choice as to whether to comply with the Convention in Northern Cyprus, but the UK has a choice of whether to comply with the Convention when acting in BIOT or one of its other overseas territories.

In Al-Skeini the Court tried to put this problem to rest by essentially killing off the argument that Article 56 has any bearing on how Article 1 is to be interpreted (para. 140):

The “effective control” principle of jurisdiction set out above does not replace the system of declarations under Article 56 of the Convention (formerly Article 63) which the States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible. Article 56 § 1 provides a mechanism whereby any State may decide to extend the application of the Convention, “with due regard … to local requirements,” to all or any of the territories for whose international relations it is responsible. The existence of this mechanism, which was included in the Convention for historical reasons, cannot be interpreted in present conditions as limiting the scope of the term “jurisdiction” in Article 1. The situations covered by the “effective control” principle are clearly separate and distinct from circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it is responsible (see Loizidou (preliminary objections), cited above, §§ 86-89 and Quark Fishing Ltd v. the United Kingdom (dec.), no. 15305/06, ECHR 2006-…).

Note that the one thing that the Court does make clear in this paragraph is that the contradiction between its interpretation of Article 1 and the colonial clause in Article 56 will not lead to narrowing down its reading of Article 1. Why? Because the colonial clause was the product of ‘historical reasons’ which we have outgrown in our ‘present conditions’ – an argument that looks suspiciously like an invocation of the ‘living instrument’ doctrine without doing so by name, and despite the fact that in Bankovic the Court thought the living instrument approach to be inapposite to the question of extraterritorial application. Note also how the Court’s statement that colonies to which the Convention has not been extended are ‘clearly separate and distinct’ from foreign territories under the state’s effective control is completely unreasoned, since (at least presumptively) a state colonies are under its effective control, and since there is no reason why the Convention could not apply to such colonies if a third state occupies them and subjects them to its effective control.

Coming back to the Chagos case, the Court could have tried to avoid the issue altogether by deciding that the old Mauritius declaration continued to apply to BIOT. Yet it embraced the contradiction between two clauses. First, it remarked that ‘extraterritorial jurisdiction still remains exceptional after Al-Skeini’ (para. 72; spot the magic word! – used even though BIOT is British territory, or at least the UK claims it to be such). It then went on to apply Al-Skeini and said the following (paras. 74-76):

Nor can the Court agree with the applicants’ contention that any possible basis of jurisdiction under Article 1 such as set in the Al-Skeini judgment (cited above) must take precedence over Article 56 on the ground that it should be set aside as an objectionable colonial relic and to prevent a vacuum in protection offered by the Convention. Anachronistic as colonial remnants may be, the meaning of Article 56 is plain on its face and it cannot be ignored merely because of a perceived need to right an injustice. Article 56 remains a provision of the Convention which is in force and cannot be abrogated at will by the Court in order to reach a purportedly desirable result.

The question remains as to whether the passage from Al-Skeini cited above indicates that there must now be considered to be alternative bases of jurisdiction which may apply even where a Contracting State has not extended application of the Convention to the overseas territory in issue, namely, that the United Kingdom can be held responsible for its acts and omissions in relation to the Chagos Islands, despite its exercise of its choice not to make a declaration under Article 56, if it nonetheless exercised “State agent authority and control” or “effective control” in the sense covered by the Grand Chamber judgment. This interpretation is strongly rejected by the respondent Government and would indeed render Article 56 largely purposeless and devoid of content since Contracting States generally did, and do, exercise authority and control over their overseas territories.

However, even accepting the above interpretation, the Court finds it unnecessary to rule on this particular argument since, in any event, the applicants’ complaints fail for the reasons set out below.

The applicants’ claims failed because in the Court’s view they no longer had victim status as they’ve received sufficient compensation in a settlement they made in previous domestic proceedings. The Court thus by a majority decided that the application was inadmissible (because this was ‘just’ an inadmissibility decision we don’t actually know how large or small was the majority, nor do we have any separate opinions).

Leaving the question of victim status aside, the Court’s reasoning on Articles 1 and 56 is intriguing. First, it accepts the Al-Skeini move of not taking Article 56 as a basis for narrowing down the scope of Article 1. However, it refuses to do the reverse, by saying that Article 1 supersedes Article 56, i.e. that if a territory is within a state’s jurisdiction it does not matter it has made an Article 56 declaration. Yet while it appears decidedly sceptical on this argument, it does not dismiss it conclusively, but leaves the doors ajar by saying that it is not necessary to rule on it at this time.

The Chagossians notwithstanding, accepting the exclusive effect of Article 56 would mean that the UK did not and has no positive obligation under the ECHR to do all that it reasonably can to prevent torture or human treatment or any other human rights violations taking place in Diego Garcia, which was unquestionably used for detention and rendition in the ‘global war on terror.’ Seemingly yet another tropical island which is also a ‘legal black hole.’ But in my view, there exists room for an interpretation that would not render either Article 1 or Article 56 anomalous or superfluous. In a chapter forthcoming in the Research Handbook on the Law of Treaties I argue that one possible way of conceptualizing colonial clauses is that they do not pertain to the territorial application of a treaty in the sense of where a particular obligation is to be performed, but narrow down the scope of a state’s obligations with regard to the conduct of the autonomous organs of self-government in that territory. Being depopulated, BIOT has no such self-government; it is as a matter of fact entirely controlled by London. I would thus argue that by virtue of Article 1 the Convention applies in full force in BIOT when it comes to the actions or omissions by the central authorities of the United Kingdom. Even if you disagree, comments on the piece are of course welcome.

Finally, let me just say a few words about the pending cases on the applicability of the ECHR to British soldiers abroad. Readers will recall that a couple of years ago the UK Supreme Court decided the Smith case (judgment; commentary on the blog), applying the House of Lords’ reasoning in Al-Skeini and holding that UK military personnel operating abroad were within UK jurisdiction only when they were on the premises of a UK military base, but not outside it. That case concerned a claim by the family of a British soldier that the UK government failed to supply their son with proper equipment, thus contributing to or failing to prevent his death – in essence an Al-Skeini in reverse. (Note that procedurally the case was somewhat strange because the soldier in that case actually did die on a base; the Court went on to decide the issue of the ECHR’s applicability to soldiers outside a base because it was a matter of general importance).

Then came the Grand Chamber’s Al-Skeini judgment, which in part reversed Bankovic and the approach of the House of Lords in Al-Skeini. Another case on the same issue, also called Smith, is currently pending before the UK Supreme Court, which now needs to decide whether the Grand Chamber’s judgment calls for revisiting its earlier conclusion in Smith. The Court of Appeal (judgment) thought not, as the logic of the Grand Chamber’s judgment does not clearly lead to reversing the Smith holding, and as in any case the Supreme Court was best placed to decide whether a change in approach was appropriate. We will see what will happen, although I think the Court of Appeal was right in saying that the GC Al-Skeini judgement does not ipso facto call for revisiting Smith; that is indeed one of the many uncertainties left in the wake of Al-Skeini. But interestingly enough, an application raising the same issues has also been lodged in Strasbourg and has been communicated to the UK government (Pritchard v. UK, App. No. 1573/11). Needless to say, this creates a fascinating opportunity for judicial dialogue between the UK Supreme Court and Strasbourg (thankfully at least not one to provoke much outrage from the Daily Mail et al., because who could really criticize either court if it said that British soldiers have human rights vis-à-vis their own country). Another similar recent case is Sandiford, where the High Court held that British citizens detained and prosecuted abroad are not within UK jurisdiction if they are being given consular assistance and have no claim to such assistance under the ECHR.

To wrap this update up, the Chagos Islanders have exhausted their options in Strasbourg, and since cases implicating the colonial clause are very rare it is unlikely that the Court will revisit its approach soon, even though it should. The same goes for the ill-advised decision in Djokaba, which will however probably be revisited sooner rather than later (at least one case regarding a CIA black site is currently in the pipeline). Finally, the Smith saga bears watching, and its outcome can have profound implications for the conduct of military operations abroad by European states in terms of how they are supposed to behave towards their own troops.

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Duncan French says

May 21, 2013

As a non-specialist in ECHR law, this has really struck me how far a particular regime can get bogged down in its own intricate jurisprudence without taking a step back and considering the wider picture. This is, of course, not a new problem, but certainly with the ongoing arbitration of The Republic of Mauritius v. The United Kingdom of Great Britain and Northern Ireland under UNCLOS - there is once again an opportunity to reflect on disparities in approach between human rights and other areas of law.

André de Hoogh says

May 27, 2013

Marco, As nit-picking, or raising fundamental issues, is allowed, let me make an attempt as well. Basically you equate a State’s jurisdiction to its exercise of effective overall control over territory. This to me seems, however, to negate that the word jurisdiction connotes a legal capacity or authority of the State over territory or individuals. Typical about the case of Longa v. the Netherlands is that the jurisdiction of the Netherlands is precisely limited under international law, admittedly on a voluntary basis through consent to treaties, with respect to both the ICC and various categories of persons associated with it and individuals held in detention by the Court.

Though in principle a State retains the legal power to legislate over everybody and everything within its territory, its legal powers to adjudicate and enforce its law(s) are restricted in certain cases when it admits the establishment of an embassy or consulate, or allows the operation of an international organization, on its territory, and provides privileges and immunities. Though strictly speaking it is only the exercise of jurisdiction that is limited, for all intents and purposes jurisdiction is effectively limited. The example you give of a State allowing another State to operate a military basis on its territory appears to be different, at least to the extent that you refer to black sites or detention facilities, in that those States would not (necessarily) have granted any privileges and immunities to the latter State or its associated individuals (though possibly the executive branch might even have done as much; though that to me would likely raise ultra vires issues).

Your argument that the Netherlands has a positive obligation is premised on equating jurisdiction of a State to its effective overall control over its territory. As a matter of logic such reasoning can be maintained; however, one cannot deduce a positive obligation where a person is not within the State’s jurisdiction to begin with. And, if one views the term jurisdiction from the perspective of a State’s legal powers (per Bankovic), then it is debatable whether the person concerned is within the jurisdiction of the Netherlands. You indicate that the detention of Longa by the ICC is not attributable to the Netherlands but to the ICC, but the crucial point is that such detention is conducted pursuant to the ICC’s authority and legal powers. The Netherlands did not have any choice or say in this and could not interfere with any decision in this respect. To ignore this is to ignore that jurisdiction is not about control per se, but about the exercise of authority and legal powers.

Clearly, the Netherlands has consented to all this and your argument seems to boil down to the assertion that if individuals within the ICC detention unit were to be tortured, the Netherlands has, or ought to be considered to have, human rights obligations towards such individuals. Yet those human rights obligations are there only if the individuals concerned are within Dutch jurisdiction (quod non). That such reasoning or construction leads to perverse consequences -killing an individual within an international armed conflict not constituting the exercise of legal powers does not lead to a conclusion that such person is within a State’s jurisdiction, but killing an individual within custody or detention does- is another way of saying that one does not want to accept the consequences to which an interpretation and application of the law leads. But shouldn’t that be an argument in favour of revising the law, rather than reinterpreting it?

Supposing, arguendo, that human rights obligations do apply in case of ICC investigators going rogue and torturing people or ICC chambers denying them fair trials (an ICC chamber changing mode of liability in its judgement?). In such a case your argument presumes that the Netherlands would have to intervene pursuant to its positive obligation. But how? By making representations, one would think. But what if nothing works? Would it have to take control by use of force of the ICC detention facilities or ICC premises? In that case a conflict of international obligations would arise, which would raise the issue of which obligation prevails. Or alternatively, the Netherlands could invoke a circumstance precluding wrongfulness, countermeasures or necessity perhaps, and take the requisite measures. Either way, your underlying position is that human rights obligations must be given effect. A laudable position, but not complete in argumentation (as cannot be expected, I freely admit, in a blog contribution).

Marko Milanovic says

May 27, 2013

Hi Andre,

Your points are well taken - indeed I agree with most of them. The primary disagreement here is with first principles, i.e. the semantic meaning of the word jurisdiction. The European Court's approach on that issue has changed through time; it is correct that in Bankovic it said something to the effect that it connotes the exercise of a legal power, but happily one can disagree. And in that regard I have argued at length in my book that the word jurisdiction actually denotes the exercise of factual power over territory or over individuals. Whether this is 'interpreting' or 'revising' the law is really neither here nor there; all of that law except for the word 'jurisdiction' itself is judge-made, and one can criticize it from first principles.

As for your last point, it is in my view simply arbitrary to say that a person would be within Dutch jurisdiction if he or she was held on Dutch territory by CIA spies, but not be within Dutch jurisdiction if he or she was held by US embassy officials or the ICC, because the latter enjoy privileges and immunities. You are right to say that the territorial state can find itself in a situation of norm conflict, its obligations under the ECHR commanding it to prevent harm to a person, and its obligations to a third state commanding it to respect the inviolability of privileged premises or persons. I fully accept that! But that's frankly the territorial state's problem, since it freely assumed two (potentially) contradictory obligations. (As e.g. in Al-Saadoon). I don't however claim that human rights ipso facto override contradictory obligations. Rather, in case no harmonious compliance with both obligations would be possible, it would be on the territorial state to make an essentially political choice as to which obligation to honour and which to breach, and suffer the consequences.