The Concept of State Jurisdiction in Human Rights Treaties

1. The Concept of State Jurisdiction in Human Rights Treaties Dr Marko Milanovic, University of Nottingham, June 2013

2. Scope of human rights treaties • Who has rights? • Who has duties? • When do the treaties apply? • Where do they apply? • Focus on the jurisprudence of the European Court, because there’s a lot of it and because it matters; but argument made for all human rights treaties

3. Conceptualizing (extra-)territorial application of a human rights treaty • Define the concept • Art 29 VCLT Territorial scope of treaties Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory • Colonies

4. Jurisdiction Clauses • Article 1 ECHR: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention • Article 2(1) ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant • Article 2(1) CAT Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

5. What is this ‘jurisdiction’? • Jurisdiction of a state, not the jurisdiction of a court • A threshold criterion, cf. armed conflict • Not a rule of attribution  state responsibility

6. Basics of state responsibility • Art 2 ILC ASR: There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) Is attributable to the State under international law; and (b) Constitutes a breach of an international obligation of the State. • Attribution based on status or institutional link – Arts 4-7 ASR – e.g. de iure organ status • Attribution based on a transient, factual link – Arts 8-11 ASR – e.g. effective control over a specific act (ICJ Nicaragua, Bosnian Genocide; ICTY Tadic; CAUTION – reference to control also possible for other purposes, like jurisdiction; don’t confuse them! • Attribution + breach = responsibility; consequences of responsibility = cessation and reparation • Basic problem: private individuals; other states; int organizations

7. Jurisdiction Clauses, again • Article 1 ECHR: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention • Article 2(1) ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant • Article 2(1) CAT Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. negative v.positive obligations

8. Loizidou (prel. obj.), para. 62 [A]lthough Article 1 sets limits on the reach of the Convention, the concept of ‘‘jurisdiction’’ under this provision is not restricted to the national territory of the High Contracting Parties. … Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful - it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it is exercised directly, through its armed forces, or through a subordinate local administration

9. Spatial model: jurisdiction as control over territory • Overwhelmingly supported by case law • ECtHR – Cyprus line of cases, etc. • HRC – e.g. Israel and the OPT • ICJ – Wall case; Congo v. Uganda • But is it enough?  Bankovic

10. Bankovic, paras. 59-61 As to the ‘‘ordinary meaning’’ of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States [citations omitted] Accordingly, for example, a State’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that State’s and other States’ territorial competence []. In addition, a State may not actually exercise jurisdiction on the territory of another without the latter’s consent, invitation or acquiescence, unless the former is an occupying State in which case it can be found to exercise jurisdiction in that territory, at least in certain respects. The Court is of the view, therefore, that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case

11. More than one ‘ordinary meaning’ or the word ‘jurisdiction’ in PIL • Article 9(2), Disappearances Convention: Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized. • Jurisdiction to prescribe and jurisdiction to enforce in general international law  territoriality, active and passive personality, flag, protective, universal

12. Bankovic, para. 71& 75 In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government. … the wording of Article 1 does not provide any support for the applicants’ suggestion that the positive obligation in Article 1 to secure “the rights and freedoms defined in Section I of this Convention” can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question.

13. Bankovic, para. 80 The Court’s obligation, in this respect, is to have regard to the special character of the Convention as a constitutional instrument of European public order […] It is therefore difficult to contend that a failure to accept the extra-territorial jurisdiction of the respondent States would fall foul of the Convention’s ordrepublic objective, which itself underlines the essentially regional vocation of the Convention system [… discussing the Cyprus v. Turkey vacuum argument]. In short, the Convention is a multi-lateral treaty operating, subject to Article 56 of the Convention2, in an essentially regional context and notably in the legal space (espacejuridique) of the Contracting States. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.

14. Understanding Bankovic • The references to general international law are bogus; they are just a superficially plausible, legalistic cover for what the Court is actually doing • Bankovic, post-9/11, fear of the floodgates opening; extraterritorial application of the ECHR had to be exceptional

15. The spatial model at a breaking point • Use of force without exercising effective overall control of a territory; e.g. Bankovic, Al-Skeini; but also Issa, Pad, Isaak • Targeted killings or assassination; e.g. drones, Litvinenko • Detention, torture of persons in a territory controlled by another state; e.g. Al-Skeini; high-value Al-Qaeda detainees & CIA black sites • Reverse Al-Skeini: R(Smith) v. SSD • Complicity scenarios – UK, US and Pakistan • Transboundary environmental harm; e.g. Ecuador v. Colombia

16. Jurisdiction as control over very, very small areas of territory • Guantanamo • Al-Saadoon, dec., para. 85: The Court considers that, given the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question, the individuals detained there, including the applicants, were within the United Kingdom’s jurisdiction. This conclusion is, moreover, consistent with the dicta of the House of Lords in Al-Skeini and the position adopted by the Government in that case before the Court of Appeal and House of Lords. • Ships and aircraft (e.g. Medvedyev, Hirsi); embassies; is jurisdiction exclusive - other premises (ICC)

17. Jurisdiction as control over territory; but also as control over individuals? • Cyprus v. Turkey, EurComm’n (1975), para.8 It is clear from the language, in particular of the French text, and the object of this Article, and from the purpose of the Convention as a whole, that the High Contracting Parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad. • ECtHRIssa v. Turkey; HRC, Lopez-Burgos In line with this, it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory. • HRC, General Comment 31 (2004), para. 10 This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. ... This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.

18. The personal model collapses • It’s all well and fine to say that ‘jurisdiction’ can also mean authority and control over individuals, but • What exactly qualifies as ‘authority and control’? • And can this principle ever be limited? • Is killing an individual authority and control? Is detaining an individual authority and control? Is putting an individual on trial in absentia authority and control? • Any proposed limitation (e.g. physical custody) is ultimately exposed as arbitrary  any state action capable of violating HR qualifies as authority and control  the threshold collapses

19. Policy behind the rule • Tension between universality and effectiveness • Universality renders many considerations morally suspect (e.g. territorial sovereignty, citizenship, relativism) • Flexibility • Regime integrity • Clarity and predictability • Al-Skeini?

20. Case Study – Al-Skeini • Lower court judgments • House of Lords judgment - regionalism and relativism; espacejuridique; BahaMousa within UK jurisdiction because military prison is like an embassy • BahaMousa inquiry • European Court Grand Chamber judgment

21. Al-SkeiniUKHL, para. 78 (per Lord Rodger) The essentially regional nature of the Convention is relevant to the way that the court operates. It has judges elected from all the contracting states, not from anywhere else. The judges purport to interpret and apply the various rights in the Convention in accordance with what they conceive to be developments in prevailing attitudes in the contracting states. This is obvious from the court’s jurisprudence on such matters as the death penalty, sex discrimination, homosexuality and transsexuals. The result is a body of law which may reflect the values of the contracting states, but which most certainly does not reflect those in many other parts of the world. So the idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European Court in the utterly different society of southern Iraq is manifestly absurd. Hence, as noted in Bankovic, 11 BHRC 435, 453-454, para 80, the court had “so far” recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention. If it went further, the court would run the risk not only of colliding with the jurisdiction of other human rights bodies but of being accused of human rights imperialism.

22. Al-Skeini, ECtHR GC (July 2011), para. 135 (addressing personal model) the Court has recognised the exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government (Banković, cited above, § 71). Thus where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State.

23. Al-Skeini, ECtHR GC (July 2011), paras. 136-137 In addition, the Court’s case-law demonstrates that, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. [citing Öcalan,Issa, Al-SaadoonandMedvedyev]. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare Banković, cited above, § 75)

24. Al-SkeiniGC, para. 140 (trying to kill off the colonial clause) 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-...).

25. Al-SkeiniGC, para. 142 (killing off the espacejuridique) The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “Convention legal space” (see Loizidou(merits), cited above, §78; Banković, cited above, § 80). However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States. The Court has not in its case-law applied any such restriction (see amongst other examples Öcalan, Issa, Al-Saadoon and Mufdhi, Medvedyev, all cited above).

26. Al-Skeini GC, para. 149 (applying the public powers criterion to the personal model) It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.

27. Al-Skeini GC, para. 150 (applying the new test to the facts) Against this background, the Court recalls that the deaths at issue in the present case occurred during the relevant period: the fifth applicant’s son died on 8 May 2003; the first and fourth applicants’ brothers died in August 2003; the sixth applicant’s son died in September 2003; and the spouses of the second and third applicants died in November 2003. It is not disputed that the deaths of the first, second, fourth, fifth and sixth applicants’ relatives were caused by the acts of British soldiers during the course of or contiguous to security operations carried out by British forces in various parts of Basrah City. It follows that in all these cases there was a jurisdictional link for the purposes of Article 1 of the Convention between the United Kingdom and the deceased. The third applicant’s wife was killed during an exchange of fire between a patrol of British soldiers and unidentified gunmen and it is not known which side fired the fatal bullet. The Court considers that, since the death occurred in the course of a United Kingdom security operation, when British soldiers carried out a patrol in the vicinity of the applicant’s home and joined in the fatal exchange of fire, there was a jurisdictional link between the United Kingdom and this deceased also.

28. Al-Skeini GC: Better, but still not good enough • Bankovic largely preserved, both conceptually (extraterritorial application is exceptional and must be justified by reference to general international law) and in result (e.g. drones, or the bombing of Libya, or an OBL-style targeted killings operation would per Al-Skeini not fall under the ECHR) • Personal model applied, but limited arbitrarily to preserve the result of Bankovic • Complete uncertainty about the ‘public powers’ concept, now used to mix the spatial model with the personal one, in order to prevent the collapse of the personal model and avoid overturning Bankovic; how does that apply say to Afghanistan?

29. After Al-Skeini • Catan and others v. Moldova and Russia • Two further ECtHR decisions: Djokaba; Chagos Islanders; more pending • UKSC revisiting Smith; also before the ECtHR • What we don’t know • Public powers inherently malleable • Litvinenko; Osama bin Laden; Smith • Complicity; positive obligations • Belligerent occupation under strain - Basra

30. My proposed solution • Jurisdiction conceptualized as purely factual control over territory or spaces • Distinguishing between the positive obligation to secure or ensure HR, from the negative obligation to respect HR • The positive obligation to secure should only apply subject to territorial control, i.e. under the spatial model • The negative obligation to respect should be territorially unrestricted [but knock yourself out with jurisdiction under the personal model if you really feel you need to, so long as that is not arbitrarily limited] • However, prophylactic or procedural positive obligations should apply jointly with negative obligations, in cases of state action

31. Issues of shared responsibility • Relationship between jurisdiction and attribution • Normally two separate enquiries • But attribution of conduct can be a prerequisite for jurisdiction – e.g. that of the conduct that constitutes effective control of an area • Simultaneous jurisdiction of different states on different bases • Ilascu – in my view erroneously • CIA black sites – territorial state and the custodial state • Spatial jurisdiction need not require exclusive control • Occupier creates a subordinate local administration with a significant degree of autonomy (TRNC) or allows the local administration of the displaced sovereign to continue • Insurgency – Iraq, Afghanistan • Use of force/occupation conducted by several states jointly • Use of force/occupation under the auspices of an IO - Kosovo • Transformation of a belligerent into a pacific occupation and the creation of a new government – again Iraq, Afghanistan