By Tobias Thienel

The European Court of Human Rights has yesterday heard argument in the case of Medvedyev and Others v France. The webcast of the hearing, simulcast in English, is here. A press release setting out the basic facts and complaints is here. The case raises a few interesting points. Having watched the webcast, I’m not sure they will all (re-)appear in the eventual judgment, but if they do, it’s going to be a truly fascinating judgment. Put shortly, the case merges the law of the ECHR with the international law of the sea. The facts are these: a freighter sailing under the Cambodian flag on the High Seas of the Atlantic Ocean, the Winner, was suspected of carrying illicit drugs, to be delivered to European coastal states. France therefore made a request to Cambodia for permission to stop and search the vessel. Such permission was granted in a note verbale from the Cambodian Ministry of Foreign Affairs, transmitted via the usual diplomatic channels. The French Navy then did set about stopping the vessel. At that time, the Winner did not fly any flag at all, and refused to identify itself when requested to do so by the French Navy. The Navy vessel fired a warning shot across the bow of the Winner, which then eventually stopped. After it had then tried to ram the boat carrying the French boarding party, French Navy personnel boarded the ship, and found considerable amounts of cocaine. The Navy officers arrested the crew of the Winner, who were then confined to quarters, while the Winner was taken to a French port (Brest). The journey from the place of the stop and search (in the waters off Cape Verde) to Brest took 13 days, during which the crew of the Winner were kept under arrest. Once at Brest, the crew were taken to police custody, and brought before a judge some 48 hours later. The case raises two main issues: (a) the legality of the arrest at sea, and (b) the legality of the delay between the arrest and the judicial decision. ad (a): The first complaint posits that the stop and search by the French Navy, and the subsequent arrest, was without a legal basis. So far as I can tell from the oral arguments, the principal points taken are these: (1) Cambodia not being a party to the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, no power to stop and search could be derived from Article 17 of the Convention; (2) Cambodia also not being a party to the UN Convention on the Law of the Sea, no such power could be derived from Articles 108 or 110 of that second Convention; (3) none of the articles mentioned could, in any event, be construed as giving a power to arrest the crew; (4) the French Act designed to give domestic effect to the former UN Convention could not be interpreted to do so, either. As I understand them, these arguments find their way into the ECHR at two points in the analysis under Article 5(1) ECHR (the right to liberty, and particularly the right not to be unlawfully detained): – The argument in international law is that the French Navy has violated the sovereign rights of Cambodia as flag state of the Winner. If that were so, the arrest would have been unlawful because of the violation of public international law (Öcalan v Turkey, paras. 90, 93), notwithstanding the fact that the violation would, in origin, be one committed vis-à-vis Cambodia, and not a violation of the rights of the arrested persons. The Convention thus establishes a right of the arrested persons to be arrested only in accordance with any applicable law, whether the provisions establish rights of theirs or any other limitation on what the state can do. The objection that the breach of international law inherent in the arrest did not concern the applicants, but only another state – the foundation of the old statement male captus, bene detentus – thus does not apply under the ECHR, and hence is not available to France. The difficulty with the international law argument in Medvedyev, however, is that Cambodia appears to have given its consent to what the French Navy did. The flag state has therefore given France jurisdiction to do what it did. There has been no violation of public international law. The arrests were therefore not unlawful on these particular grounds (as in Öcalan, paras 97-99). [There might be an argument that a power to arrest based on an informal note verbale is not sufficiently clear and accessible to count as ‘law’ for the purposes of the Convention (see Malone v United Kingdom, para 79), but no such point has been accepted, or indeed raised, either in Öcalan or in Medvedyev. Also, the international lawfulness of the arrest, which seems to follow from the note verbale, does not do away with the need for a legal basis in French law.] – The second argument may be more helpful to the applicants: even if the arrest was not internationally wrongful because of a lack of jurisdiction to enforce, it would still, in the ordinary way, have to have a basis in French law. The applicants deny that there was any such basis. The Government obviously disagrees. On this point, Judge Costa had an interesting question for the Government, which I don’t think was answered: if the legal basis claimed by the Government is the domestic Act giving effect to the UN Convention against Illicit Traffic (…), can this Act apply where the Convention does not? I don’t know the answer, which is a matter of French law. In German law, however, an Act implementing a treaty does nothing more than render the treaty applicable by domestic courts and authorities; if the treaty does not apply, then the Act does not go any further. The Act would therefore apply only as between the parties to the treaty, unlike normal domestic legislation. I would be eager to know if French law works like that, too – but, of course, the relevance of this point depends on the terms of the Act invoked by the Government, which I don’t know. The parties were agreed, incidentally, that the crew of the Winner came under the ‘jurisdiction’ of France in the sense of Article 1 ECHR during the time that the French Navy had control of the ship. There was no oral argument on this point by the lawyer for the applicants, but the representative of the Government made some brief remarks. She put her acceptance of French ‘jurisdiction’ on different grounds than those advanced by the applicants. She said, in particular, that the case of a ship was not one of territorial ‘jurisdiction’, but one of ‘jurisdiction’ following from the state’s effective control over the applicants. That must be correct. True it is that many have said that a ship ought to be regarded as a floating part of the flag state’s territory (the ‘perambulating province’ theory: cf. The Case of the SS Lotus, PCIJ Series A, No 10, 25; US v Flores, 289 US 137, 155-157 (1933)), but (a) France was not the flag state (although its powers had been delegated to it by the flag state), and (b) that metaphor is in any event a very unhappy turn of phrase (see The Case of the SS Lotus, Dissenting Opinion by Lord Finlay, 52-3; Cunard SS Co v Mellon, 262 US 100, 123 (1923); Chung Chi Cheung v R (1938), Annual Digest 9, 264, 269-270 (PC); PC Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 191; DP O’Connell and IA Shearer, The International Law of the Sea, vol II (1984), 735-736). The ‘jurisdiction’ of France for the purposes of Article 1 ECHR therefore followed only from its agents’ full control over the applicants on the Winner (much like in Stocké v Germany, para 166 and Öcalan, para 91). ad (b): The second point is whether it was compatible with Article 5(3) ECHR for the applicants to be brought before a judge only two days after their arrival at Brest harbour, and 15 days after their arrest at sea. The issue therefore subdivides into two questions: (1) was it permissible to seek a judicial decision on the applicants’ detention only after they had been taken into port?, and (2) if so, was it permissible to wait another 48 hours after the applicants’ arrival at the port until they saw a judge? Particularly the first is a very difficult question. It is beyond doubt that 13 days is much too long a period of detention without judicial control (cf. Brogan v United Kingdom, paras 60-62). However, an arrest on the High Seas raises some unusual considerations: it is practically impossible to put a judge on every warship that might conceivably come to arrest offenders at sea, and contacting a judge only by phone generally would not comply with Article 5(3) ECHR (as it does not on land), and might call into question the fairness of the judicial hearing. There may well have to be some kind of adaptation to the special circumstances of the situation; if so, the interim solution of an arrest warrant granted over the phone might be acceptable. We’ll see what the Court thinks about this. If, that is, the Court will be so good to make its views known: it might avoid this thorny issue by ruling only that there has been a violation in respect of the 48 hours spent in executive detention on land, or that the Navy should have sought a judicial ruling not at Brest, but at the first French port en route. But, of course, the Court shouldn’t take either way out, as it would in either case leave out concerns over several days of detention at sea. We’ll see.