By Tobias Thienel

Following up on my previous post on today’s trio of important cases from Strasbourg, I will now offer some further thoughts – still far from exhaustive – on the three judgments. Of course, my pointer to EJIL:Talk (where Marko Milanovic’s thoughts are expected) remains.

As for Al-Skeini, I think it can be predicted with some confidence that this case will stand as one of the most important cases on the extra-territorial application of the European Convention on Human Rights. Whether it can eclipse Bankovic – which it cites a great deal – remains to be seen and is a little doubtful. However, Al-Skeini is one of the few cases that give some impression of what ‘effective control’ means. Certainly, the judgment does not actually do much to actually define the concept, but its outcome is telling. If the somewhat precarious grasp that the British Army had on events in Basra at the relevant time is sufficient (if taken with the role of the UK as an occupying power), then the test is clearly less demanding than has occasionally been thought. True, the fleeting presence of the odd military patrol or aircraft may not be enough (cf. Issa and Others v Turkey; Bankovic and Others v Belgium and Others), but the facts in Al-Skeini – regarding the general state of affairs and the specific situations in which the shootings occurred – were not all that much stronger. It may be, certainly, that the fact of military occupation in the sense of international humanitarian law weighed heavily with the Court (as it has with Judge Bonello), but ‘effective control’ remains, even on the approach of the Court, above all a factual concept.

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By Tobias Thienel

It’s a good day for human rights law because the Grand Chamber of the European Court of Human Rights has today delivered its judgments in Al-Skeini and Others v United Kingdom, Al-Jedda v United Kingdom and Bayatyan v Armenia. In all these cases, the applicants have now won, after losing everywhere else on the way to the Grand Chamber. I, for one, did not necessarily expect that.

I will have something more to say on these cases later, and readers are advised – though no doubt unnecessarily – to turn to EJIL:Talk where Marko Milanovic is sure to have enlightening comments fairly soon. Suffice it to say here and at this stage that

– in Al-Skeini the Grand Chamber very quickly demolished the reasoning of the House of Lords (and the High Court before it) in holding that the European espace juridique of the Convention (as mentioned in para 80 of Bankovic and Others v Belgium and Others) was in no way a limit to the extraterritorial application of the ECHR. This is clearly right. I do not begin to believe that the Court was influenced by my article on this question (the works of Ralph Wilde and Marko Milanovic may be another matter), but it is good to be proved right by high authority.

– also in Al-Skeini, the Court found that the UK had had effective control for the purposes of Article 1 because, as an occupying power, it had exercised some of the powers of the local state. The Court is not entirely clear whether it applied the model of ‘jurisdiction over territory’ or of ‘jurisdiction over a person’, but it seems that it was the latter, if somewhat curiously set in a general situation of some control over territory.

– still in Al-Skeini, it is regrettable that the Court has not followed the clear line taken by Judge Bonello in his – beautiful! – concurring opinion. It has spoken of ‘effective control’ as the decisive matter, but in rehearsing other bases of extraterritorial application has stuck to the strange view that the powers of diplomatic agents and the like under general international law were somehow decisive as well. This should be a matter of control as in all other cases.

– in Al-Jedda, the Court simply read down the Security Council resolutions that were said to have authorised the applicant’s detention. In doingso, it quite properly approved a principle of construction by which SC resolutions should, where possible, be read to comply with human rights law. Only Judge Poalelungi found this impossible. The majority avoided the Article 103 point, but the sole dissenting Judge would have followed the House of Lords on this matter.

– finally, in Bayatyan, the Court ruled in favour of a right of conscientious objection under Article 9 of the ECHR. It overruled the (small) Chamber and a good body of Commission case law in holding that Article 4 (3) (b) had nothing to say about this. This meant that the interesting methodological point about the limits of the ‘living instrument approach’ in the face of clear implications from the wording (as to which see this previous post) did not arise.

By Tobias Thienel

The International Court of Justice has today given judgment on the merits of the Case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo). The judgment is available here; a press release with a short summary of the judgment is here.

The Court held some of the claims made against the Democratic Republic of the Congo inadmissible for having been filed too late in the course of the proceedings. On the merits, the Court found the DRC to have violated Mr Diallo’s right of physical liberty and the prohibition on unlawful and arbitrary expulsions. As to the substance of the human rights instruments at issue, the Court was happy to follow the jurisprudence of the UN Human Rights Committee and the African Commission on Human and Peoples’ Rights, as well as that of the European and Inter-American Courts of Human Rights. This is, of course, fully consonant with its approach to the ICCPR and ICESCR in the Wall opinion (paras 109 et seq). Interestingly, the Court has now indicated its reasons for adhering to such practice, pointing to the role given to the Committee and the Commission by the relevant treaties as well as the need for clarity and consistency (paras 66, 67).

In substance, the Court was not particularly adventurous on the human rights issues. Judges Keith and Greenwood, however, dissent on the interpretation of the prohibition on arbitrary expulsions, arguing that this extended only to procedural, but not to substantive standards.

The Court did not find any violations of Mr Diallo’s rights in his capacity as associé (partner or shareholder) in several companies. (The rights of those companies themselves had been excluded from the case at the preliminary objections stage because those companies were not Guinean and Guinea therefore was without standing to exercise diplomatic protection with respect to them.) In the result, the Court found the DRC liable to make reparation in the form of financial compensation. In accordance with the traditional logic of diplomatic protection, such compensation will be paid to Guinea rather than Mr Diallo (cf. Barcelona Traction case, paras 78 et seq). The amount of compensation may yet be fixed by the Court if the parties fail to agree.

By Tobias Thienel

The Grand Chamber of the European Court of Human Rights has recently heard oral argument in the case of Bayatyan v Armenia. I have not yet watched the webcast of the hearing, but I would like to quickly flag the important issues raised by the case. This I will do primarily by reference to the Chamber judgment that is now being ‘appealed’ to the Grand Chamber.

The facts of the case are fairly straightforward: At the relevant time, Armenian law provided for an absolute obligation of national service in the armed forces. There was no right of conscientious objection, either in the form of choosing an alternative form of civilian national service, or as a general release from all national service. The applicant objected to all military service, being a Jehovah’s Witness. He therefore refused to perform national service. As a consequence, he had to spend time in prison.

When his case came to Strasbourg, the applicant’s argument chimed perfectly with a very strong trend in recent – and not so recent – European practice. Very nearly all member States of the Council of Europe had recognised a right of conscientious objection (if they had any national service at all). Also, the Parliamentary Assembly of the Council of Europe had expressly regarded conscientious objection as a fundamental aspect of the freedom of religion in Europe, and the right had been similarly recognised in the Charter of Fundamental Rights of the EU. Moreover, recognition of conscientious objection had even become a condition for admission to membership in the Council of Europe.

Armenia itself had therefore given an undertaking that it would recognise conscientious objection and allow for a civilian form of national service. This it has by now done, but the amendment did not come in time for the applicant’s case. Nor did the applicant succeed at Strasbourg.

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By Tobias Thienel

Some time ago, I reported in this space on the case of Al-Saadoon and Mufdhi, first in the English courts and then in the European Court of Human Rights. I was remiss in failing to report on the merits judgment (on which see Marko Milanovic’s excellent post at EJIL:Talk!), but I did at least have a few words on the admissibility decision. The merits judgment is now set down for publication in the Court’s official reports, so it’s rightly regarded as somewhat important.

However – somewhat to my surprise – the panel of the Grand Chamber has now refused the UK’s application for referral to the Grand Chamber. Al-Saadoon and Mufdhi therefore now stands undisturbed for the propositions that

– the ECHR does not bow to conflicting other international law (such as obligations of extradition) except on its own terms,

– that the permission of the death penalty in Article 2 of the ECHR has been extinguished, both by subsequent Protocols and sub silentio,

– that Article 3 of the ECHR therefore now covers the death penalty, which amounts to cruel and inhuman treatment,

– that Article 2 of the ECHR and Article 1 of Protocol 13 create an obligation of non-refoulement where there is a risk that the death penalty will be imposed and

– that, once a State has violated that obligation, it may be under an obligation to use diplomatic means to prevent that risk from materialising.

The decision of the panel of the Grand Chamber does not, strictly speaking, approve the Chamber judgment, or take it to the level of authority that a Grand Chamber judgment possesses. It is also probably wrong to surmise what this might mean for the resolution of Al-Skeini and Al-Jedda (on which see another post of Marko’s at EJIL:Talk!). However, it is always nice to see a good judgment sustained on appeal.