Extraterritoriality and Article One
It is abundantly clear that the ECHR does not create obligations for states to the world at large; rather Article 1 provides
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. (emphasis added)
Long standing case law of the Court makes it clear that Article 1 is a primarily territorial limitation. In other words, we are primarily concerned here with actions of member states within their own boundaries. However, there are exceptional circumstances in which the Convention can be applied extraterritorially under Article 1. We had traditionally thought of these as being somewhat simply divided into three categories. First, situations when individuals come under the control of an agent of the state acting abroad. Second, situations when individuals are within an area that is under the effective control of a state. Third, situations in which states might have a kind of oblique responsibility for actions done to an individual in a third state where his or her presence in that state can be attributed to a decision of the COE member state (hence the principle of non-refoulement, for example). All of these three exceptional situations remain undisturbed by Al Skeini.
The burning question here was what impact, if any, the much maligned concept of the espace juridique of the Convention would have on the case. This is the idea that, even where the Convention applies extraterritorially this is primarily limited to the geographical area of the Convention itself, i.e. as between members of the COE. The idea here is to ensure that there could not be any gap in protection of individuals within the COE. However, questions had arisen as to whether this concept—which readers might recall was especially prominent in the Bankovic case about NATO bombings in the Former Yugoslavia—precluded application of the Convention outside that space. Some, including me (here, for example), had argued repeatedly that it did not and that, in fact, the concept of espace juridique did not practically alter the extraterritorial scope of the Convention in any meaningful way. By my reading, that position is supported by Al Skeini:
141. The Convention is a constitutional instrument of European public order (see Loizidou v. Turkey (preliminary objections), cited above, § 75). It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86).
142. 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).
Thus, the fact that Iraq is outside of the COE did not mean that there could never be extraterritorial application of the Convention to COE member states’ activities there. As the forces engaged in SE Iraq at the time had undertaken governmental functions, including that of ensuring security, the area and the people within it were under the effective control of those forces. Thus, the question then became one of attribution.
Multi National Forces and the Sticky Matter of Attribution
As is now common, the UK did not act unilaterally in Iraq. Rather it was acting as part of a Multi National Force (MNF) and so the question became this: were the actions complained of actions of UK soldiers qua UK soldiers (in which case the UK would have jurisdiction under Article 1) or were they actions of UK soldiers qua UN forces (in which case there would be no Article 1 jurisdiction)? In this respect the Court, quite sensibly, looked at the actual operation of the MNF in South-East Iraq (where the actions complained of occurred) and found, as a matter of fact, that the United Kingdom was the controlling partner in that MNF under the rules of engagement and the military organisation. The actions were, therefore, attributable to the UK notwithstanding the fact that it was operating as part of a multinational force. (Aside: for those interested in such things, the US Supreme Court’s finding of attribution in Munaf v Geren back in 2008 is very similar in form to this). Attribution receives more sustained attention in the partner case of Al-Jedda but the Court (as is to be expected) does not conflict with its approach to attribution in Al Skeini, looks at the operation of the situation on the ground (in that case a detention facility) and attributes to the United Kingdom. Para 84 of Al Jedda is instructive here:
Therefore, because the situation in SE Iraq fell into the exceptional circumstances in which Article 1 allowed for the application of the Convention extra territorially (to both the state in question and the espace jurisdique of the COE) and because the actions done could be attributed to the UK, rather than the MNF, the Grand Chamber found jurisdiction.
It would appear from the opinion of Lord Bingham in the first set of proceedings brought by the applicant that it was common ground between the parties before the House of Lords that the test to be applied in order to establish attribution was that set out by the International Law Commission, in Article 5 of its draft Articles on the Responsibility of International Organisations and in its commentary thereon, namely that the conduct of an organ of a State placed at the disposal of an international organisation should be attributable under international law to that organisation if the organisation exercises effective control over that conduct (see paragraphs 18 and 56 above). For the reasons set out above, the Court considers that the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force and that the applicant’s detention was not, therefore, attributable to the United Nations.