By Vassilis Tzevelekos and Antal Berkes (University of Liverpool)
Introduction
On 21 September
2021, the Third Section of the European Court of Human Rights (ECtHR, Court)
rendered its judgment in the case of Carter v. Russia. The
case is named after the applicant, who is the widow of A.V. Litvinenko – a
former KGB agent who was granted asylum by the United Kingdom (UK). In 2006,
Litvinenko was admitted to hospital in the UK, where he subsequently passed
away. His death was caused by acute radiation syndrome resulting from the
ingestion of polonium 210. The ECtHR accepted that the available evidence
established beyond reasonable doubt that Litvinenko had been poisoned by two de
facto agents/organs (under Article 8 of the Articles
on the Responsibility of States for Internationally Wrongful Acts) of
Russia, who acted under the direction of the Russian intelligence services. According to the Court, by “putting the poison […, the Russian
agents] knew that, once ingested, the poison would kill Mr Litvinenko. The
latter was unable to do anything to escape the situation. In that sense, he was
under physical control of [the Russian agents] who wielded power over his life”
(para. 160). The Court found Russia to be in breach of both the
substantive and the procedural limbs of Article 2 of the European Convention on
Human Rights (ECHR), which protects human life.
Carter, which -we must note- is not yet final, is a courageous judgment. The
sociolegal challenges of what is a fairly complex and a highly politicised case
are quite obvious. Yet, most importantly, what makes Carter a courageous
judgment is that the Court appears to depart from one of its key case law
tenets regarding the extraterritoriality of negative human rights obligations. Prior
to discussing Carter’s significance and contribution to
the evolution of extraterritoriality, we first highlight certain noteworthy
legal issues raised by the judgment and we explain this note’s focus; we then
provide a framework of analysis regarding extraterritoriality and effective
control.
A Plethora of
Noteworthy Legal Issues and the Note’s Focus
Carter raises various interesting questions spanning from standards of
evidence -where our view is that the Court did a commendable job in keeping its
case law with respect to the burden of proof aligned with that of the Inter-American
Court of Human Rights in cases like Velásquez-Rodríguez v. Honduras (para. 135)
and Afro-descendant Communities displaced from
the Cacarica River Basin (Operation Genesis) v. Colombia (para. 270)-,
to the concurrent
exercise of jurisdiction by Russia and the UK over the same situation/set
of facts resulting in the death of Litvinenko. Other interesting aspects are the
attribution of conduct to a state of persons acting under its direction, and the
jurisdictional basis of Russia’s positive duty to investigate the circumstances
leading to loss of life outside of its territory, where the Court appears to be
missing active and/or passive nationality as autonomous jurisdictional
links/bases in international human rights law, relying instead, yet again (e.g.,
Güzelyurtlu and Others v. Cyprus and Turkey, paras. 188‑189
and Hanan v. Germany, paras. 139-142), on the Russian authorities’
application of domestic law and investigation into the Litvinenko case (paras. 131-133)
-which, after all, in our view is nothing more than a means for the respondent
to comply with a positive international human rights law duty.
Interesting as
such questions may be, the focus of this note is on a different legal issue. With
Carter, the ECtHR moves in the direction of the correlation of
extraterritoriality with causality/attribution with respect to the breach of negative
human rights rules. Essentially, what the Court holds in Carter is that
causality, that is to say, the attribution to a state of conduct that
constitutes a breach of its negative human rights’ obligations (i.e., direct
attribution of a human rights wrong), can lead to state responsibility for the
breach of negative extraterritorial human rights obligations irrespective, in a
sense, of the exercise of effective control over territory or a person by the
state causing the wrong. This is neither trivial, nor an easy task. It is
absolutely understandable that the Court chooses to be quite careful in
maintaining a fine balance between continuity in its case law, reflected in its
efforts to reiterate (a variation of) the notorious ‘effective control’ over
territory or a person criterion as a precondition for negative ECHR obligations
to apply extraterritorially, and in the erosion of said criterion by means of
the association in essence of attribution/causality with extraterritoriality, such
that, to an extent, this new approach is reminiscent of or even coinciding with
‘cause-and-effect’ or control/power over the enjoyment of a right. But, to unpack
this point, we must first go back to the origins of the effective control
criterion.
Extraterritoriality
and Effective Control: The Earlier Approach of the Court
Effective
control as a precondition for the ECHR parties’ duty to abstain from violating
their negative human rights obligations outside of their territory emerged in Banković. ‘Emerged’
here is a rather refined term to say that ‘effective control’ as an extraterritoriality
criterion has no explicit legal basis in human rights law and/or in the text of
the ECHR; that is to say, effective control is a standard/criterion constructed
or devised by the ECtHR in Banković. In that case, the Court relied on
this very criterion/doctrine to refrain from exercising jurisdiction in a
politically sensitive and a legally complex case involving questions of
attribution of conduct to states and/or an international organisation as a
preliminary question conditioning the establishment of responsibility for life
losses caused by NATO air strikes against Serbia.
What enabled the
ECtHR to raise its infamous effective control criterion in Banković and
present it as an enduring and already established standard was Loizidou
(preliminary objections,
paras. 62-64, in particular, and merits, paras. 52-57, in
particular). Loizidou and Banković are to an extent comparable as
they both concern negative human rights obligations extraterritorially. However,
as one of us has argued,
where these two cases differ is that Loizidou raised a question that was
absent from Banković, namely the question of the attribution of the
conduct of the local administration in the northern part of Cyprus to the
respondent state, Turkey. The latter was found by the ECtHR to exercise
effective control over the said subordinate non-state entity. Effective control
in this context is a criterion for attribution; and attribution was also relevant
in Loizidou because it was a
precondition for the ECtHR to exercise its own jurisdiction against the
respondent. In simpler words, effective control was primarily employed in Loizidou
for the purposes of attribution -and the International Law Commission’s rules
on state responsibility confirm that the Court was absolutely right to do so (ARSIWA
Commentaries, p. 48). Therefore, attribution
in Loizidou was, very correctly (albeit through reasoning that,
admittedly, could have benefited from more clarity), treated as a precondition
for establishing Turkey’s liability for human rights breaches that it committed
outside of its territory, through a non-state entity that was effectively
controlled by it and whose conduct was, therefore, attributable to it. Per
se, effective control in Loizidou was only indirectly and
incidentally relevant to the question of whether ECHR states have extraterritorial
human rights obligations. Had the circumstances of the case not raised an issue
of attribution to the respondent state of the conduct of the subordinate local
administration in the northern part of Cyprus, effective control would not have
been involved in Loizidou.
Indeed, until Banković,
extraterritorial human rights obligations were only natural, in the sense
that, with respect to negative human rights obligations in particular, no state
shall be allowed to directly cause human rights violations both within and
outside of its territory. This reflects the so-called ‘cause-and-effect’
approach to negative extraterritorial human rights obligations. However, with Banković,
the Court rejected ‘cause-and-effect’. This was made possible by (mis)appropriating
the Loizidou effective control criterion and, rather arbitrarily,
transforming said criterion, from a criterion used under certain circumstances
for the purposes of attribution, into an autonomous criterion conditioning
extraterritoriality. That is, by completely detaching the effective control
criterion from attribution, the Court shifted to effective control (over
territory or persons) as an autonomous criterion conditioning
extraterritoriality. The Court thereby, rather arbitrarily, but also for
arguably legitimate reasons aiming, at that time, to safeguard the regional
character of the ECHR and to delimit the Convention’s so-called espace
juridique, created an artificial criterion for extraterritoriality. This
new extraterritoriality criterion, namely effective control, enabled the Court
to declare inadmissible the application in Banković, and to thereby abstain
from examining the question of the attribution of the alleged wrongs to the
respondent ECHR parties and the merits of the case.
Banković is a telling example of why effective control shall not have a
place in extraterritoriality -unless this standard is employed for the purposes
of attribution, as in Loizidou. When effective control is employed in a
manner that discounts attribution and autonomously conditions the ECHR’s
applicability extraterritorially, conduct such as air strikes, remote killings,
or cyber-attacks against persons overseas caused by/directly attributable to
the ECHR states parties fall outside of the Convention’s applicability. This leads
to impunity, essentially giving states a green light, as long as they do not
exercise effective control, to cause deaths overseas. Banković and, more
generally, effective control as a precondition for states to have to respect
human rights outside of their territory has been criticised so abundantly and
strongly in scholarship (including our scholarship –1,
2, 3, 4, and 5) that
we simply cannot add anything meaningful or novel here in this respect. Holding
that a state can kill people outside of its territory as long as it does not
exercise (a certain type or degree of) effective control is not just morally
reprehensible (inter alia because it promotes a culture of double
standards), but also legally groundless.
This may offer
an explanation as to why, since Banković, the ECtHR has sought to
mitigate its effective control criterion. Three mitigation avenues are worth
highlighting in this brief note. First, it seems that effective control is not
indispensable for positive human rights obligations to extend
extraterritorially (e.g., Rantsev v. Cyprus and Russia,
para. 289; Romeo Castaño v. Belgium,
paras. 37-43; Zoletic and Others v. Azerbaijan,
para. 191). Obviously, the thorny question of what justifies or activates
extraterritorial positive obligations and the standards of diligence and pro-activeness
in human rights protection that a state must demonstrate exceed the confines of
this note. Secondly, the ECtHR case law gives weight to the procedural
dimension of protection, emphasising the duty on states to investigate, for
instance, incidents leading to the loss of life outside of their territory
which they are involved in or with which they are connected (e.g., Georgia v. Russia (II), paras. 331-332; Hanan v. Germany, paras. 137-145). One might feel tempted
here to note how oxymoronic and deficient it is from a human rights’ teleology perspective
to essentially allow states to kill people outside their territory, and then
hold them accountable because they failed in their procedural duty to duly
investigate these killings. The third type of ‘easing’ concerns negative human
rights obligations; thus, this type of mitigation of the effective control
criterion is central to the question that we are exploring in this note. After Banković,
the ECtHR has gradually lowered the threshold of or even created exceptions
from (full) effective control as a precondition for extraterritoriality in the
field of negative human rights obligations (e.g., Issa and Others v.
Turkey, paras. 70-71, overall, instead of effective, control exercised
temporarily; Pad and Others v. Turkey,
paras. 53-54, concerning shots fired from a Turkish military helicopter killing
people in Iran; Andreou
v. Turkey, where the Court applied ‘cause-and-effect’ for
extraterritorial shooting resulting in life loss, Al-Skeini and Others v.
the United Kingdom, para. 149, presumed exercise of authority and
control because the UK exercised some of the public powers normally to be
exercised by a sovereign government in Iraq; Jaloud v. The Netherlands, para. 152, exercise of authority and
control over persons through shots fired at a car). On the other hand, thus
far, effective control remains valid as a criterion, whereas the ECtHR has,
time and time again, emphasised that causality (i.e., in this context, the
direct attribution of the breach of a negative human rights obligation) does
not automatically engage state responsibility (Banković, para. 75; Medvedyev and Others v. France, para 64; M.N. and Others v. Belgium, para. 112). In different terms, the
Court -unlike what other international human rights law authorities nowadays do
(e.g., Human Rights Committee, General
comment No. 36, para. 63, power or effective control over the enjoyment of
the right to life; African Commission on Human and Peoples’
Rights, General
Comment No. 3, para. 14; Inter-American Court of
Human Rights, The Environment and Human Rights
Advisory Opinion, para. 101, causality of
transboundary environmental harm establishing extraterritorial jurisdiction, which
has been discussed by one of us here)-
has in the past rejected a ‘cause-and-effect’ approach, essentially holding
that the rule is that, irrespective of attribution/causality, state
jurisdiction (i.e., obligations) to respect human rights extraterritorially
does not exist unless effective control in its various forms and turns is
exercised.
Carter’s Contribution
to Negative Extraterritorial Human Rights Obligations
To return to Carter,
this judgment contributes to negative extraterritorial human rights obligations
in that it further mitigates effective control. It does so, however, by adding
a rather imprecise or wanting sort of assortment of or accessory to control.
The administration of poison to Litvinenko by the de facto agents of the Russian Federation was found by the Court
to amount to “exercise of physical power and control over his life in a situation
of proximate targeting” (para. 161). One may wonder what role proximity might be
playing in this context or whether the Court is establishing another
presumption, namely that, in situations of proximate targeting or of ‘isolated and specific acts involving
an element of proximity’ (para. 129) control
applies. Be that as it may, this is not the major contribution of Carter
to the regulation of negative extraterritorial human rights obligations. As we
have already argued, other judgments in the past have mitigated or complemented
the variations of the effective control criterion. Seen from this perspective, Carter
is just a welcome addition that requires further development and clarity as to
the exact meaning of ‘proximate targeting’.
Yet, the truly
novel part of Carter and its major contribution to negative
extraterritorial human rights obligations stems from the fact that, reading
between the lines of the judgment, what seems to have prompted the Court to
further narrow down effective control (and essentially bypass it in this case
by playing the ‘proximate targeting’ ‘card’) is causality. First, by holding
that jurisdiction is established because of the “exercise of physical power and
control over [Litvinenko’s] life” (para. 129), the Court is actually shifting
to control/power over the right to life, instead of control over territory or a
person. Second, in Carter, the Court discusses
attribution extensively and establishes causality. Even if Russia’s de facto agents who killed Litvinenko
did not truly exercise effective control over him, they controlled his life and
caused his death. It is understandable that the Court, in a very legitimate
effort to defend and give the impression of continuity in its case law reiterates
effective control (paras. 125 – 126) and strives to give a flare of a certain type
of control exercised by the respondent as the dominant criterion underpinning extraterritoriality.
It is, therefore, in a sense unsurprising that the Court holds in Carter
that causing Litvinenko’s death is the result of the exercise by the Russian
agents “of physical power and control over [Litvinenko’s] life in a manner
sufficient to establish a jurisdictional link” (para. 170). Control thus remains
in place as a criterion. Yet, one must not lose sight of the fact that the
crucial point here is not control over a person, but over his life, thus, causality
in the framework of negative obligations. The Russian agents’ conduct is
directly attributable to (i.e., caused by) Russia. The Court in Carter may
be playing with words to disguise causality as control exercised by (the)
Russia(n agents) over the direct victim’s life in a situation of proximate
targeting (paras. 150, 158, and 161, whatever these terms may mean), but what
truly matters for holding Russia responsible for a human rights wrong outside of
its territory is that this wrong is imputable to/directly caused by it.
Is Carter
signalling a concealed (as a Court of the calibre of the ECtHR ought to do to
safeguard its reputation and legitimacy) departure from its former casuistic effective
control case law and a turn towards ‘cause-and-effect’ through control/power
over the enjoyment of the right to life? Our reading is that, yes, this is what
the Court is covertly and dexterously doing. Carter is pointing in the
direction of ‘cause-and-effect’. Yet, as is always the case, when it comes to
the interpretation of the intention of judges or to what one should discern when
reading between the lines of a judgment, we may be construing things here that
we very much wish to read; in different words, we must admit that we
might be taking here our desires as facts and confusing the Court’s lex lata
with our lex ferenda. We very much hope that this is not the case,
and that future (Grand Chamber) ECtHR case law will continue deconstructing
effective control as a precondition for extraterritorial negative human rights
obligations, whilst also moving to the direction of ‘cause-and-effect’ as a
means to safeguard “the effectiveness of the Convention both as a guardian of
human rights and as a guarantor of peace, stability and the rule of law in
Europe” (Carter, para. 128). Even if this was eventually to be done only
with respect to some of the most important human rights, such as the right to
life or the prohibition of torture, and not with regard to all ECHR rights,
this would be a very positive advancement. Carter is a very positive
development; a most welcome addition to the long tail of ECtHR case law on
extraterritoriality.
Indeed, we have
every reason to celebrate because, with Carter, a state that directly
caused extrajudicial death overseas has been found liable by the human
rights Court of Europe in a case where this state essentially did not exercise
any manifest effective control over the territory at issue or the direct victim.
Carter may be nominally maintaining some type of control as a
precondition for extraterritorial negative human rights obligations, but it is drastically
contributing into turning the Banković effective control criterion into
an empty shell of a legal ghost from the past. Causality may now be seen as an
emerging supporting protagonist in case of extraterritorial negative human
rights violations, turning (effective) control into a false protagonist. Alleluia!
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