The judge thus concluded that the claimant
Posted: Mon Feb 17, 2025 8:42 am
The judge did not put much stock in the ‘public powers’ concept 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.
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.
(2) Disagreeing with the dicta of the House of Lords in Al-Skeini and the UK Supreme Court in Smith, the judge considers that derogations under Article 15 ECHR could also be used in an extraterritorial context (paras. 153-157), finding that:
155. Article 15 accordingly permits a state, within defined limits, to derogate from its obligations under the Convention “in time of war or other public emergency threatening the life of the nation.” This wording, however, (in particular the word “other”) tends to suggest that Article 15 was not intended to apply to a war overseas which does not threaten overseas chinese in europe data the life of the nation. That is no doubt because those who drafted the Convention did not envisage that a state’s jurisdiction under Article 1 would extend to acts done outside its territory. Now that the Convention has been interpreted, however, as having such extraterritorial effect, it seems to me that Article 15 must be interpreted in a way which reflects this. It cannot be right to interpret jurisdiction under Article 1 as encompassing the exercise of power and control by a state on the territory of another state, as the European Court did in the Al-Skeini case, unless at the same time Article 15 is interpreted in a way which is consonant with that position and permits derogation to the extent that it is strictly required by the exigencies of the situation.
I think this is perfectly sensible. Recall also the pending ECtHR Hassan case, where the Court may pronounce itself on extraterritorial derogations. I would only part ways with the judge when he says that the drafters of the Convention did not envisage extraterritorial Article 1 jurisdiction, since we really have absolutely no idea what the drafters of the Convention wanted or intended.
(3) The detention of SM by UK forces in Afghanistan was attributable to the United Kingdom, and not to the UN (para. 158 ff). Here we have an extended discussion of the Behrami and Saramati and Al-Jedda attribution saga. While the judge thought that the distinguishing in Al-Jedda between the situations in Iraq and Kosovo was not wholly persuasive, and while he did not reject Behrami outright (which I think he could and should have done), he considered that:
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.
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.
(2) Disagreeing with the dicta of the House of Lords in Al-Skeini and the UK Supreme Court in Smith, the judge considers that derogations under Article 15 ECHR could also be used in an extraterritorial context (paras. 153-157), finding that:
155. Article 15 accordingly permits a state, within defined limits, to derogate from its obligations under the Convention “in time of war or other public emergency threatening the life of the nation.” This wording, however, (in particular the word “other”) tends to suggest that Article 15 was not intended to apply to a war overseas which does not threaten overseas chinese in europe data the life of the nation. That is no doubt because those who drafted the Convention did not envisage that a state’s jurisdiction under Article 1 would extend to acts done outside its territory. Now that the Convention has been interpreted, however, as having such extraterritorial effect, it seems to me that Article 15 must be interpreted in a way which reflects this. It cannot be right to interpret jurisdiction under Article 1 as encompassing the exercise of power and control by a state on the territory of another state, as the European Court did in the Al-Skeini case, unless at the same time Article 15 is interpreted in a way which is consonant with that position and permits derogation to the extent that it is strictly required by the exigencies of the situation.
I think this is perfectly sensible. Recall also the pending ECtHR Hassan case, where the Court may pronounce itself on extraterritorial derogations. I would only part ways with the judge when he says that the drafters of the Convention did not envisage extraterritorial Article 1 jurisdiction, since we really have absolutely no idea what the drafters of the Convention wanted or intended.
(3) The detention of SM by UK forces in Afghanistan was attributable to the United Kingdom, and not to the UN (para. 158 ff). Here we have an extended discussion of the Behrami and Saramati and Al-Jedda attribution saga. While the judge thought that the distinguishing in Al-Jedda between the situations in Iraq and Kosovo was not wholly persuasive, and while he did not reject Behrami outright (which I think he could and should have done), he considered that: