LJIL Symposium: A Comment on Samantha Besson’s Article on the Extraterritorial Application of the ECHR

[Marko Milanovic is lecturer in law at the University of Nottingham School of Law.]

It is a pleasure to participate in this discussion organized by the Leiden Journal of International Law and Opinio Juris, and to comment on Professor Besson’s interesting article, which I enjoyed reading. Not to beat around the bush, I (very amicably!) disagree with much of Professor Besson’s article, just as much as she disagrees with much of what I wrote in my recent book on the topic (discussed here on Opinio Juris and at EJIL: Talk!). So there. Let me try to explain why.

Professor Besson’s main claim is that prior scholarship on the ECHR’s extraterritorial application, most of it very critical of the European Court’s case law, has not given serious thought to normative considerations that underpin the issue, ‘except for vague and often misleading gestures to the  universality of human rights that allegedly requires their extraterritorial application.’ Generally speaking, in Besson’s view that scholarship is under-theorized and the vague references to universality fail to account for the relational nature of rights and obligations under human rights treaties. To remedy that, the ‘article endeavours to bring some normative human rights theorizing to bear on the ECtHR’s recent practice on extraterritoriality [and] hopes thereby to provide a different reading of the Court’s case law and show that it has been wrongly depicted by some authors as fragmented and even contradictory.’ 

If we take its purpose as so defined, the article in my view fails to live up its promise. Let’s start from its rather surprising final claim that the case law of the Court is in fact not contradictory and has wrongly been depicted as such. I’d be inclined to say that not even the Court’s own judges think that their case law on extraterritoriality is coherent. Some shout that from the rafters, as Judge Bonello did in his parting separate opinion in Al-Skeini; others do that more subtly, most often extracurially. The oh-so-tactful British judges trying to sort out through the Strasbourg jurisprudence similarly observed that Strasbourg’s cases ‘do not speak with one voice’, and so forth. I’ve talked to many counsel in these cases, some of them fluffy human rightists favouring an expansive application of the ECHR, some hard-nosed realists favouring a very narrow one, but none of them in my experience thought that the Court’s case law was anything other than a complete mess.

And even Professor Besson thought it ‘remarkable’ that in Al-Skeini the Court partially overturned Bankovic (p. 859, n. 13). Then in one even more remarkable footnote (p. 872, n. 67) she decided to disregard for the purpose of her analysis  some ‘minor decisions’ of the Court like Issa, Pad, and Isaak, that she thought were inconsistent with Al-Skeini (and presumably Bankovic) even though she thought it quite appropriate to start off her article by a quote from one of these ‘minor decisions’, Issa (viz. ‘article 1 of the Convention cannot be interpreted so as to allow a State Party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory’, itself a paraphrase of the Human Rights Committee’s views in Lopez-Burgos v. Uruguay).

It is ultimately upon each reader of the Court’s jurisprudence to conclude for themselves whether that jurisprudence is internally consistent and coherent. In my view it manifestly is not. Rather than one grand theory that we really need to think hard about and will ultimately discover if we do so, what connects these cases is the Court weighing, on the one hand, its universalist impulse to protect those affected by state power, and on the other, its desire to avoid burdening states with obligations that they could not realistically comply with, or stretching the Convention so much that the integrity of the regime would be impaired. It is in this calculus between universality and effectiveness, between utopia and apology, a calculus in which the preliminary question of the threshold of application is used a proxy for dealing with the merits, that we can find true understanding of the Court’s case law. And it is precisely in the minor cases, those in which the demands of high politics do not press so harshly on the Court, in which its protective impulse is harder to resist and apology harder to justify, that this calculus becomes more evident.

This is, in short, a deeply and inherently political process, and there is in principle nothing wrong with that. What I just cannot understand is how this process could be mistaken for the Court following some yet-to-be-explained grand theory about the notion of jurisdiction in Article 1. In that regard, for an article trying to elaborate on such a theory, indeed openly claiming to be an exercise in ‘normative human rights theorizing,’ the theorizing itself is not particularly inspired or methodologically novel. It is in fact no more normative or theoretical than most of the scholarship preceding it – not that there is anything wrong with that. Thus, like so many others before her, Professor Besson interprets the term ‘jurisdiction’ in Article 1 ECHR, picks elements that should or should not matter in its application, tries to distinguish it from related concepts such as attribution of conduct as a matter of state responsibility, and supports her analysis with citations to case law and the like (at times erroneously, as e.g. when she says that the Loizidou case employed the (now discredited) notion of the espace juridique (p. 881, n. 117), which it never, ever did). Yes, there are the obligatory references to Dworkin and Habermas (p. 864, nn. 33 and 34), but they do not make Besson’s argument any more ‘normative’ or ‘theoretical.’ For better or worse, it is qualitatively no different than what came before.

While the article’s methodology may not be truly novel, its conclusions are. Thus, it agrees with the critics of Bankovic (myself included) that the concept of ‘jurisdiction’ in Article 1 cannot be the general international law notion of the jurisdiction to prescribe domestic law (on the basis of such heads as territoriality, active and passive personality, universality etc), as the Court there seems to have thought. But the article does not agree with the critics that the concept of jurisdiction should be a purely factual one, based on state control over territory or individuals. Rather, in Besson’s view, Article 1 refers to something she calls ‘domestic law jurisdiction’ (p. 868 ff).

I will leave it to her to explain what exactly that entails. For my part, I found it to be unclear both conceptually (I for instance have no idea what ‘domestic law jurisdiction’ means under say Serbian law, US law, or UK law, to mention only those domestic systems with which I have a degree of familiarity) and in its application to concrete cases. Indeed, what I find most remarkable is that (unless I am mistaken) Besson’s article does not mention a single concrete scenario in which she would at least for our benefit test her proposed model of jurisdiction, thus not only facilitating our understanding but also allowing us to properly weigh its consequences as a matter of policy.

Does, say, the ECHR apply to the activities of its states parties in Afghanistan? Why or why not? Would it apply to an Afghan civilian killed on patrol? Would it apply to an Afghan civilian killed on a UK base? Would it apply to a UK soldier killed by friendly fire? Would it apply to Danish soldiers providing training and support to Afghan soldiers whom they can reasonably suspect of employing torture against detainees in their custody? Would it apply to drone strike or other targeted killings, like the poisoning in London of Alexander Litvinenko, ostensibly by Russian agents? Would it apply to Russian actions in Georgia during the armed conflict there? Again, why or why not? It’s all well and good to say that jurisdiction must be ‘exercised in a normative fashion so as to give reasons for action, and not as mere coercion’ (p. 872). But what exactly does this entail, and where exactly is the moral justification for tying the existence of individual rights to a criterion as vague and open to abuse as this one? The main flaw of Besson’s article, in short, is not that it is ‘theoretical,’ but that it is so completely, so unfailingly, and ultimately so unpersuasively abstract.