Here are the highlights, with some commentary
Posted: Mon Feb 17, 2025 9:28 am
(1) The ECHR applies extraterritorially to any person detained by the UK in Afghanistan, under the ECtHR Al-Skeini judgment and the personal model of Article 1 ECHR jurisdiction as authority and control over individuals (para. 166 ff). The judge thought of Al-Skeini as follows:
136. A disappointing feature of the judgment of the European Court in the Al-Skeini case is its lack of transparency in dealing with its previous decision in the Bankovic case. Nowhere did the Court confront or expressly acknowledge the fact that it was departing from its previous approach or explain why it was doing so. The Bankovic case is not even mentioned except for citations to it in some footnotes.
137. It is clear, however, that in the Al-Skeini case the European Court has indeed departed from its approach in the Bankovic case on all the five points which I mentioned above. In particular:
i) The Court has now endorsed a principle of jurisdiction based on the exercise of effective control by a state over an individual;
ii) The Court has expressly resiled from the notion that Convention rights constitute a single, indivisible package and has said that they can be “divided and tailored”;
iii) The Court held that jurisdiction under article 1 is not limited to the territory of states which are parties to the Convention;
iv) In endorsing an approach which goes well beyond what the Court had found in the Bankovic case to be ordinary meaning and original intention of Article 1, the Court has effectively treated Article 1 as a “living instrument”;
v) Although the Court continued to pay lip-serve to the notion that jurisdiction is “essentially territorial” and that extraterritorial jurisdiction is exceptional, it is difficult to see how this can remain so when jurisdiction arises wherever in the world a state exercises effective control over an individual.
The judge did not put much stock in the ‘public powers’ concept employment database that the ECtHR used to prop up the personal model of jurisdiction and prevent its collapse (see more here), but he was fully aware that it is prone to collapsing into the proposition that the state has the duty to respect human rights whenever it has the factual ability to violate them:
141. The decision of the European Court in the Al-Skeini case leaves many unanswered questions which will no doubt have to be worked out in later cases. For example, it is unclear whether, once jurisdiction is understood to rest on the exercise of control over individuals, there is any stopping point short of what the European Court in the Bankovic case saw as the logical conclusion that jurisdiction under Article 1 exists whenever an act attributable to a contracting state has an adverse effect on anyone anywhere in the world; and if so, what that stopping point is. In the present case, however, such difficult questions do not arise because the facts fall squarely within one of the core examples of the control principle set out in the Al-Skeini case and not merely within its penumbra.
The judge thus concluded that the claimant was within the UK’s jurisdiction, since detention undoubtedly qualified as an exercise of physical power and control over him (paras. 147-148). Note that the UK government’s immediate reaction to Al-Skeini was to say that it was contained to the unique facts of Iraq, and the MoD lawyers similarly tried to distinguish Al-Skeini in several different ways, all of which the Court ultimately found unpersuasive. The government’s strategy to deny the ECHR’s applicability to Afghanistan thus seems likely to fail, not just in the further proceedings in this case but in others as well.
136. A disappointing feature of the judgment of the European Court in the Al-Skeini case is its lack of transparency in dealing with its previous decision in the Bankovic case. Nowhere did the Court confront or expressly acknowledge the fact that it was departing from its previous approach or explain why it was doing so. The Bankovic case is not even mentioned except for citations to it in some footnotes.
137. It is clear, however, that in the Al-Skeini case the European Court has indeed departed from its approach in the Bankovic case on all the five points which I mentioned above. In particular:
i) The Court has now endorsed a principle of jurisdiction based on the exercise of effective control by a state over an individual;
ii) The Court has expressly resiled from the notion that Convention rights constitute a single, indivisible package and has said that they can be “divided and tailored”;
iii) The Court held that jurisdiction under article 1 is not limited to the territory of states which are parties to the Convention;
iv) In endorsing an approach which goes well beyond what the Court had found in the Bankovic case to be ordinary meaning and original intention of Article 1, the Court has effectively treated Article 1 as a “living instrument”;
v) Although the Court continued to pay lip-serve to the notion that jurisdiction is “essentially territorial” and that extraterritorial jurisdiction is exceptional, it is difficult to see how this can remain so when jurisdiction arises wherever in the world a state exercises effective control over an individual.
The judge did not put much stock in the ‘public powers’ concept employment database that the ECtHR used to prop up the personal model of jurisdiction and prevent its collapse (see more here), but he was fully aware that it is prone to collapsing into the proposition that the state has the duty to respect human rights whenever it has the factual ability to violate them:
141. The decision of the European Court in the Al-Skeini case leaves many unanswered questions which will no doubt have to be worked out in later cases. For example, it is unclear whether, once jurisdiction is understood to rest on the exercise of control over individuals, there is any stopping point short of what the European Court in the Bankovic case saw as the logical conclusion that jurisdiction under Article 1 exists whenever an act attributable to a contracting state has an adverse effect on anyone anywhere in the world; and if so, what that stopping point is. In the present case, however, such difficult questions do not arise because the facts fall squarely within one of the core examples of the control principle set out in the Al-Skeini case and not merely within its penumbra.
The judge thus concluded that the claimant was within the UK’s jurisdiction, since detention undoubtedly qualified as an exercise of physical power and control over him (paras. 147-148). Note that the UK government’s immediate reaction to Al-Skeini was to say that it was contained to the unique facts of Iraq, and the MoD lawyers similarly tried to distinguish Al-Skeini in several different ways, all of which the Court ultimately found unpersuasive. The government’s strategy to deny the ECHR’s applicability to Afghanistan thus seems likely to fail, not just in the further proceedings in this case but in others as well.