Limits of of extraterritorial jurisdiction of the European Convention on Human Rights
June 14, 2007 by Ruthie
Regina (Al-Skenini and Others) v Secretary of State for Defence.
House of Lords decision, reported Times 14th June.
The Human Rights Act 1998 was capable of applying to acts of a United Kingdon Public Authority performed outside its territory only where the victim was within the jurisdiction of the UK for the purposes of article 1 of the European Convention of Human Rights.
Held, Lord Bingham dissenting, when dismissing
i) appeals by five claimants whose relatives were killed by patrolling British troops in Iraq and
ii) cross appeal by the secretary of state for defence in respect of the sixth claim by Daoud Mousa, whose son died at a British Military detention base in Iraq from injuries allegedly caused by British soldiers.
But ulimately the reach of the Convention was for the Strasbourg Court to decide.
Lord Bingham delivered an opinion concluding that the 1998 Act did not confer a right based on acts committed outside the UK.
I thought this had already been covered by case law on Article 1, according to Loizidou v Turkey 1995 - an I quote from paragraph 52:
“Of particular significance to the present case the Court
held, in conformity with the relevant principles of international law governing State responsibility, that the responsibility of a Contracting Party could also arise when as a consequence of military action - whether lawful or unlawful - it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration”
Then again, I haven’t actually read the HoL decision so maybe they’ve already covered this.
BTW this is so refreshingly highbrow compared to geeklawyer’s blog
My mother always warned me, be careful what you wish for, as you might get it…
Of course in writing about academic criminal law I’m now obliged to field comments from academic criminal lawyers
No, truly, I’m grateful for your comment, and so early in the inception of this blog. I wanted to make the point that there is another side to Ruthie than pink leathers.. I’m obliged to keep up with caselaw and I thought that writing on here would be a fun way to deal with a tedious job, also if I’m to maintain this blog to any standard I have to be reasonably regular, which encourages me to keep up the enthusiasim. (In addition to having to respond to people making comments :-))
Human Rights Law has always been a particular personal interest, more as a backdrop to my criminal law practice rather than an area of practice in itself.
Highbrow?
If I can keep the standard up, I might see if I can persuade my firm to link this blog to their website. They’ve been remarkably tolerant and supportive of my blogging activites thus far, so the least I could do is try and give something back.
I’ve just come back from a weekend biker rally (see the other blog), but its a workday tomorrow, so I’ll have a look at the case you mention then.
Would it intrigue you to know that actually I have no qualifications in law? I’m (amongst other things) a human rights activist and consequently take careful, though amateur, interest in UK, European and international human rights law.
Hopefully admitting this won’t mean you’ll ignore any future comments
It’s often the case that activists, and enthusiastic amateurs, know the law in their area of interest, better than lawyers who have other things to do than read law like speaking to clients and writing letters all day. Thats why I appreciate your contribution.
Robert, what this case adds is that it decides the scope of the Human Rights Act as a matter of UK law - the Strasbourg cases can’t say anything about that because Strasbourg doesn’t decide UK law. This judgment aligns our domestic law on the scope of the Act with Strasbourg’s view of the scope of the ECHR.