Addressing the extraterritorial application of the ECHR has emerged as one of the priorities in the UK Government’s pursuit of ‘updating’ human rights law. In recent months, the outline of an ostensible solution to the challenge posed by extraterritorial obligations has taken shape. In December, Justice Secretary Dominic Raab stated the issue was one the Government would ‘seek to address with partners in Strasbourg’. The Independent Human Rights Act Review (IHRAR) took a similar approach, suggesting a settlement at the Council of Europe, augmented by judicial dialogue. Simultaneously the Ministry of Justice consultation on replacing the HRA with a Bill of Rights sought input on how best to take the issue forward for a state-based solution. At the end of February Robert Buckland, the former Justice Secretary, gave a lecture where he called upon the government to take the issue to Strasbourg for a new protocol.
Momentum can be a powerful tool in the development of policy. When something is suggested, endorsed, and repeated uncritically, the case for it builds. It becomes not only accepted, but reasonable, balanced, and conventional. That the momentum building towards a new protocol is being driven by the Government is not a new phenomenon. As the Law Society advised the IHRAR, debates on ‘the extra-territorial scope of the HRA have always been framed from the Government’s point of view, who have not been impartial’. Indeed, that framing continues to be powerful. Despite noting that there was a ‘strong view’ from respondents that no change was necessary on the extraterritorial issue, it appears that the IHRAR put considerable weight on evidence from inter alia the Ministry of Defence in reaching the same conclusion as the Government.
Yet while the framing of this debate has demonstrable potency in domestic circles, it is highly unlikely to cut through with European counterparts. This is not to suggest that the extraterritorial application of the ECHR is not without challenge – there have, and continue to be, problems in the Strasbourg Court’s approach. Instead, the problem with the ‘British’ case on the issue is that it is founded in distortions, half-truths and selectivity. All this will be apparent once the issue is properly scrutinised by European partners. In this post, I highlight four frailties to the current framing.
The Drafting History
The first relates to the drafting of the ECHR. For the Justice Secretary, the travaux préparatoires clearly demonstrate that the Convention ‘was never supposed to have extraterritorial effect’. This is repeated in the MoJ Consultation document where it is noted that ‘[i]t is clear from the travaux préparatoires to the Convention that the drafters intended the Convention to apply only on States Parties’ territories’ and that ‘the Convention was not intended to apply extraterritorially’. The reality is that the travaux préparatoires are much less conclusive on this point.
The Convention was initially drafted to apply to individuals ‘residing within’ Contracting Parties to the treaty. That terminology changed to the adopted wording of ‘within their jurisdiction’ for two reasons. First, to duplicate the contemporaneous drafting of what would become the ICCPR. Second, with a focus on the mass displacement caused by WW2, it was to ensure that the Convention applied to individuals who were located on the territory of a Contracting Party but not legally residing there. And that is where the discussion ends. The travaux préparatoires make no mention whatsoever of the Convention’s extraterritorial application. While it is therefore true to say that the travaux indicate that the Convention was to apply to the territory of the state, the absence of discussion on whether it was to apply extraterritorially cannot be taken of itself to prove the solely territorial intention of the drafters. The extraterritorial application was simply a blind spot – an issue wholly unconsidered by the drafters and thus requiring judicial interpretation.
Expanding the Scope of the ECHR
The second frailty relates then to how Strasbourg has dealt with the issue. For the IHRAR, the Government and the think-tanks it relies upon, this has resulted in a grand and ‘troublesome expansion’. For something to be an ‘expansion’ however, we need to understand what is being expanded from. What is the baseline? For the IHRAR, the ‘starting point for an assessment’ was the 2001 case of Banković v Belgium and Others. In this admissibility decision the Grand Chamber ruled that civilians killed in a NATO air-raid on Belgrade were outside of the ‘jurisdiction’ of the state parties to the Convention, and therefore beyond the scope of their obligations. In doing so, the Court referred to the Convention’s application as being ‘primarily territorial’, and only arising extraterritorially in narrow circumstances which were closely aligned with public international law principles of jurisdiction. Moreover, it suggested that the Convention’s application would be limited to European ‘legal space’, i.e. only to the territory of Contracting Parties to the treaty. With Banković as the starting point, the IHRAR documented how the ECtHR has indeed expanded the reach of the Convention’s obligations, with a particular focus on cases brought against the UK in relation to the Iraq conflict. At all times, Banković was the reference point to be measured from.
Taking Banković as the starting point, however, necessitates a blindness to almost four-decades of jurisprudence from the Court and Commission before 2001 which had incrementally developed the notion of extraterritorial jurisdiction in an expansive manner. The IHRAR’s comment that jurisprudence was ‘undeveloped’ in 1997/8 when the HRA was drafted was, quite simply, mistaken. As early as the 1960s the Commission had suggested that a state’s obligations could apply even when a national was ‘resident or domiciled abroad’. In the 1970s the Commission reiterated that there was ‘from a legal point of view’ no reason why a state’s obligations could not apply outside of its territory. As the jurisprudence grew, so did the destinations where the Convention was deemed to apply. This included both on European territory, and beyond to Costa Rica (Freda), Guadeloupe (Reinette), Bolivia (Altmann) and Sudan (Sanchez Ramirez). Moreover, the basis upon which extraterritorial jurisdiction was found was, at times, construed in an exceptionally broad manner. In a Commission decision of the 1970s, jurisdiction was described as when a state agent exercised ‘authority over  persons or property’.
It certainly is true to say that the Convention’s scope has expanded since Banković. Indeed, there is a case to be made that it continues to still expand at a slow pace. But how this is presented is important. Beginning the story at the start of the century and with the single most restrictive interpretation the ECtHR has given on the matter distorts how the Convention’s application has evolved. Viewed in the light of seven-decades of cases spanning between the 1960s to the 2020s, Banković is the overwhelming outlier. It is the black-sheep, perhaps even the red-herring to the plot.
The Great Surprise
The third issue specifically relates to the Iraq experience. By presenting Banković as the starting point, the framing of the story until this point makes it perfectly understandable why the Government of the day took the decision not to apply the ECHR to their military operations in Iraq after the 2003 invasion. As the IHRAR note: ‘given Banković, states might reasonably have anticipated that the Convention would not apply to their actions outside of the territory of other Convention states’ and further that ‘there was nothing to suggest that the Convention had been intended to have a broader legal space than that set out in Bankovic’. The consequence of this is to make any development from this position appear to be something of a surprise, an exercise in illegitimate judicial discretion perhaps.
The Convention’s application to British military operations in Iraq was entirely foreseeable, particularly in respect of detention practices. The Strasbourg Commission and Court had consistently found that individuals within the custody of state agents fell within their jurisdiction. The contemporaneous case of Issa v Turkey further suggested this in respect of Turkish military operations in northern Iraq. This fact had not been missed by those within the military and Government at the time. Lt Col Nicholas Mercer, the Army’s top Legal Officer in Iraq in 2003, forcefully argued that prisoners were entitled to protection under the ECHR but was overruled by the Ministry of Defence. Giving evidence to the Iraq Inquiry in 2010, Peter Goldsmith, Attorney General at the time of the Iraq Invasion, noted: ‘my advice was that the obligations about the proper treatment of people, which are contained in the European Convention, did apply in relation to detainees’. After the High Court found that British jurisdiction extended to detention facilities in the Al-Skeini case (specifically concerning the killing of Baha Mousa), the Government would swiftly adopt this approach in subsequent litigation.
A more accurate way to view this episode is then to say that, at the outset of the conflict and faced with competing lines of jurisprudence, the UK government gambled strategically that the Convention did not apply to Iraq. Was it entitled to take this gamble? Absolutely. Was it a legal stretch to do so? Not at all; Banković was a relevant authority to use. But should there have been any cause for surprise when the Convention was found to apply to Iraq? Not remotely. Even a cursory reading of the jurisprudence would have made it clear that the Convention could apply to some military operations in Iraq, and most obviously to detention practices. The result of this gamble cannot be understated. Had the government recognised the Convention’s application it would have been compelled to uphold its standards, most notably in respect of detention practices and investigations. While there is inherent danger in presenting alternate histories to suggest whether specific instances of individual behaviour would have changed, there is no question that timely Article 2 and 3 compliant investigations would have prevented a significant amount of trauma for both victims and soldiers alike in the decades that have followed.
The final argument made is to suggest that there is a fundamental incompatibility in applying Convention standards to military operations abroad. The accusation is that judges just don’t get the military context. The Ministry of Defence have said that ‘[t]he practical realities of war are often overlooked’ in the Strasbourg jurisprudence, while the Intelligence Agencies claim that it is ‘inherently difficult to carry out Article 2 compliant investigations in an armed conflict. The practical realities of war are often overlooked, and Article 2 does not seem to have been developed with a military application in mind’.
Identifying inconsistencies in the jurisprudence is fair but these accusations also continue to demonstrate a selectivity towards the jurisprudence. Whereas the earlier challenge was a blindness to pre-2000 jurisprudence, this time it is to post-2011 case law. For instance, in Jaloud v Netherlands, the Court noted that it was willing to make reasonable allowances for the difficult conditions in which Dutch investigators had to work in fulfilling the Article 2 investigative obligation in Iraq. It particularly focused on the location, the context of a nation being rebuilt in the aftermath of conflict, language challenges and the hostile elements investigators faced. Elsewhere, in Smith v Ministry of Defence, the majority in the Supreme Court adopted a very narrow ‘middle-ground’ for when the state would be in violation of the right to life relating to soldiers, excluding both political/strategic decisions and individual error by soldiers. The Strasbourg Court has also demonstrated a willingness to address the concerns of state parties. In Hassan v United Kingdom, at the request of the UK government, the Grand Chamber addressed the norm conflict between human rights and international humanitarian law by modifying the Article 5 obligation in a manner which reflected the applicable law of armed conflict. Most recently the Grand Chamber found that the Convention did not apply to the active phase of hostilities in Georgia v Russia (II). Thus, while the Court remains unwilling to allow states to forego their human rights obligations entirely, the direction of travel is one of cognisance towards the difficulties states face in upholding obligations while on military operations.
To the future
None of this is to say that the ECtHR’s approach to extraterritorial jurisdiction is without problem. While the jurisprudence is gaining clarity, it has traditionally been characterised by ambiguity and inconsistency. One can see how this presents difficulties for the military, intelligence agencies and the police when they operate abroad. But these challenges are not so insurmountable that they require state-intervention. Perhaps a decade ago such an option would have been useful, but the case for it now is much weaker given the increasing consistency in the jurisprudence.
Attempting to convince other Council of Europe Member States, many of whom do not participate in the same muscular military operations overseas, to limit the extraterritorial application of the Convention, is going to be a tall order. Trying to do so while the military of one (current) Contracting Party appears to attack civilians of another with disregard, may be impossible. The result of failed talks with European Partners on this issue could then see a renewed tension with the Strasbourg system as a whole. The Government may then seek to address the issue domestically, perhaps even through legislating to limit the territorial application of the new Modern Bill of Rights/HRA (a proposal the IHRAR scrutinised in depth).
Rather than expending political energy to do so, less dramatic options should be considered. The government should continue what has been productive dialogue with the ECtHR on this issue. Recent UK representations have been received well by the Strasbourg Court, with the Court adopting the UK position in Hassan and citing specifically the intervention in M.N v Belgium, where then Attorney General Sir Geoffrey Cox led a consortium of state interventions, as good practice in dialogue. The government should also seek to demonstrate the effort it makes in applying the Convention abroad. To date, the strategy of fighting the exercise of jurisdiction in military related cases has not only been unsuccessful but has also demonstrated that no effort has been made to uphold obligations abroad. If the recent jurisprudence of the ECtHR has demonstrated anything it is that the Court will reward effort.
Conall Mallory, Senior Lecturer in Law, Newcastle Law School
(Suggested citation: C. Mallory, ‘Beyond Fantasy Island: The British Solution to the Extraterritorial Conundrum’, U.K. Const. L. Blog (16th March 2022) (available at https://ukconstitutionallaw.org/))