MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
vi. The “effective control over an area” exception applies
where through military action, lawful or unlawful, the State
exerts effective control of an area outside its national territory.
vii. In the exceptional circumstances of the cases before the Grand
Chamber, where the United Kingdom had assumed authority and
responsibility for the maintenance of security in South East Iraq,
the United Kingdom, through its soldiers engaged in security
operations in Basrah during the period in question, had exercised
authority and control over individuals killed in the course of such
security operations, so as to establish a jurisdictional link between
the deceased and the United Kingdom for the purposes of Article
1 of the Convention.”
54.
Subsequent developments have primarily concerned the scope of the exceptional
cases in which acts of contracting states performed or producing effects outside their
territories can constitute an exercise of jurisdiction by them within the meaning of
Article 1. The exceptions so far recognised are acts of diplomatic and consular agents
present on foreign territory, the exercise of control and authority over an individual
outside its territory, with or without the consent of the state in which control and
authority are exercised, the exercise of effective control of an area outside the territory
of the contracting state and the occupation by one contracting state of the territory of
another: Al-Skeini v UK [2011] 53 EHRR 18 at paragraphs 133 – 142.
55.
Mr Jaffey does not, save in one respect, submit that the two Claimants fall within any
of the recognised exceptions. In the case of G, resident in another signatory state, he
submits that he is within the “espace juridique” of the Convention and so falls within
the fourth exception which, in Al-Skeini was expounded under the heading “General
principles relevant to jurisdiction under Article 1 of the Convention: the Convention
legal space (espace juridique).” This contention, if correct, would radically alter the
nature of the obligation undertaken by a contracting state: it would impose an
obligation in respect of all persons within the jurisdiction of any contracting state.
Such a construction of Article 1 would go well beyond any conceivable construction
permitted by public international law and is inconsistent with the careful incremental
approach of the ECtHR, when dealing with issues which may not have been fully
foreseen by those who negotiated the Convention. The ECtHR has made it clear that,
at least for the time being, the notion of the espace juridique requires that when one
contracting state has occupied the territory of another, it must be accountable for
breaches of human rights within the occupied territory: Al-Skeini paragraph 142. We
do not see any room for a distinction between Claimants abroad on the basis that
some are resident in another Convention state.
56.
Mr Jaffey’s core submission is that, on a true analysis, the impugned acts have both
occurred in the territory of the United Kingdom. Therefore, it does not matter that the
person whose Article 8 rights may have been infringed was at all material times
abroad. He relies on Bosphorus v Ireland [2006] 42 EHRR 1 and Markovic v Italy
[2007] 44 EHRR 52. In Bosphorus, an aircraft owned by an entity in the former
Republic of Yugoslavia and leased by a Turkish company was seized in Dublin
pursuant to UN and EU sanctions measures. The Turkish lessors had no connection
with Ireland other than the maintenance contract with an Irish company pursuant to
which the aircraft had been flown to Dublin. Neither the Irish Government nor other