Communications No. 79/2019 and 109/2019 L.H. et al v. France and 77/2019 F.B. et al v. France
French Children in Syrian Camps: the Committee on the Rights of the Child and the Jurisdictional Quagmire
The Committee on the Rights of the Child (‘The Committee’) has handed down two important and provocative admissibility decisions in cases concerning the repatriation of French children currently held in camps in the Syrian Arab Republic (‘Syria’). On 30 September 2020, the Committee declared L.H. et al v France admissible (‘the first Decision’), which was promptly followed on 4 February 2021 with a similarly reasoned decision in F.B. et al v France (CRC/C/86/D/R.77/2019, ‘the second Decision’). The cases concern individual communications brought by the relatives of children who the French state refuses to repatriate on the apparent basis of their parents alleged support for the Islamic State in Iraq and the Levant (‘ISIL’). The Decisions concern the thorny ‘jurisdiction question’, specifically the scope of applicability of the Convention on the Rights of the Child (‘CRC’) and whether it covers decisions taken in France which impact on children overseas. The French government had argued that the children fell outside French ‘jurisdiction’ under the CRC and that France’s obligations were therefore not applicable to them – on the basis that they were on foreign territory, in a camp under the control of a non‑state actor (Kurdish authorities are control of the camps), and that the children were not under French ‘effective control’. The Committee disagreed and found, in essence, that, as the cases concerned French national children and France had the ‘power and capability’ to protect their rights, they were covered by French obligations under the CRC. It concluded that States ‘have the positive obligation to protect the human rights of child nationals in the Syrian camps, despite the fact that these camps are under the control of a non-state armed group’.
Despite only addressing admissibility, the Decisions are significant in a number of ways. First, they shine a light on the humanitarian crisis facing thousands of children in North East (NE) Syria and the urgent need to find a way out of the political impasse on repatriation in France and beyond. The cases will now proceed to consideration on the merits, as to whether there was a violation of articles 3(1) (best interests of the child), 6 (right to life), 20 (alternative care for child deprived of his/her family), 24 (right to health) and 37 (freedom from torture, from unlawful deprivation of liberty, right to dignity, right to legal and other appropriate assistance) of the CRC. The tone and content of the decisions have already sent a strong message in that respect (see e.g. first Decision para. 10). Second, the Optional Protocol, allowing individual petitions to the CRC, remains young (it entered into force on 14 April 2014 and now has 46 states parties) and these are the first cases admissible against France.
Third, the Committee has not shied away from controversy in its approach to jurisdiction, which is an essential issue - a pre-requisite to the applicability of human rights treaties and the competence of human rights bodies – and one of increasing relevance in the modern world where violations unfold without regard to territorial borders. It is also a controversial issue and an area of significant evolution, and divergence of approach between different courts and bodies. The fact that the extra-territorial scope of the CRC has not previously been addressed by the Committee in a contentious case (see e.g.
CRC Concluding observations on Switzerland para. 22 and Australia para. 28(a)) means the Committee’s approach is likely to draw particular attention. It is perhaps regrettable then that the Committee’s approach to ‘the jurisdiction question’ does not lend itself to the identification of a clearer standard of broader application, but one that is firmly anchored in the facts of the cases. It does, however, provide much food for thought and raises a number of unanswered questions.
This case note will therefore consider the exceptional facts that gave rise to these Decisions, the Committee’s approach to ‘jurisdiction’, alongside the sometimes tumultuous approach of other courts and bodies, and offer a few concluding questions and reflections on the implications of the Decisions for the future.
The context of these cases is morally disturbing and politically toxic. The applicants seek the repatriation to France of very young children, born between 2008 and 2019. Some of them were born in France and taken by parents to join ‘the caliphate’ and support ISIL in Iraq and Syria, and others were born in ISIL-controlled areas, but they are all French nationals. Their parents formed the cohort of thousands from across the globe who travelled to ISIL‑controlled territory since 2014 in what has (problematically) been dubbed the ‘foreign terrorist fighters’ phenomenon, and which provoked a plethora of responses nationally and internationally (see Duffy, 2018). Many of these individuals later fled, were displaced or captured, and have ended up in the Roj, Ain Issa and Al-Hol camps in the Rojava region of NE Syria. Tens of thousands are currently detained in the camps, among them thousands of foreign nationals, including an estimated 270-320 French nationals. The vast majority are children under six.
The Decisions’ description of facts illustrates the range and gravity of the humanitarian concerns underpinning the cases (including ‘deplorable’ camp conditions, ‘imminent’ risk to children ‘barely surviving’ in a context where 29 died of hypothermia last year, on-going risks from violence and volatility within the camps and the surrounding armed conflict, ‘inhuman sanitary conditions’ and ‘[a] lack of basic needs provision’ (e.g. first Decision paras. 2.5-9)). The child rights dimensions of the situation are intensified by the fact that many of their parents were themselves children when they decided to travel to ISIL-controlled areas, or still are today. The facts submitted by the applicants and other reports point to forced marriage, coercion and vulnerability on their part too (e.g. Committee of Experts on Terrorism, The Roles of Women in Daesh: Discussion Paper, Council of Europe 2016). No legal proceedings have been initiated against them (first Decision para. 2.5), also raising a discussion around the ‘accountability gap’ for those among the camp residents who were involved in serious crimes (see OHCHR, 2020). As set out in the first Decision, the camps are indisputably under the control of the Kurdish-led Autonomous Authorities in NE Syria, who, following collaboration with an international coalition in the defeat of ISIL, have been left ‘holding the baby’ and made clear their need for increased international support and the willingness to facilitate repatriation (e.g. first Decision para. 2.6).
Repatriation has been a growing political hot potato in France, as elsewhere. It has adopted a ‘case by case’ policy, and has repatriated some children – 17 children were returned from Syria since March 2019 (first Decision para. 9.7) – but so far rejected the request to repatriate the children represented by the authors of the communication and many others (first Decision para. 2.8). France, like other states, has been harshly criticised for abandoning its citizens in particular children, ‘turning its back on humanity’, by resisting calls for urgent repatriation, and holding those responsible for crimes to account, and offering essential protection, including to the children. The short-termism and counter-productivity of the camps, as a breeding ground for violent extremism as well as the site of multiple human rights violations, has also given rise to growing concern. As the Council of Europe Commissioner for Human Rights stated, for example, ‘letting the children of suspected ISIS fighters die [in Syria] will not heal the wounded souls of the victims of terrorism. Nor will it bring more security in Europe, or anywhere else’.
The authors of the communications were unable to pursue remedies in France, where the Administrative Court ruled that ‘no French court would have jurisdiction to rule on the position of France towards French children detained in Kurdish camps’ (first Decision para. 2.11), invoking the theory of the acte de gouvernement.1 They therefore sought the intervention of the Committee, arguing that France failed to take positive measures to ensure respect for the rights set forth in the CRC (first Decision para. 2.11).
The Jurisdiction Question
The CRC applies to children ‘within [the] jurisdiction’ of the states (article 2). A preliminary question for the Committee was whether, and if so why, the child applicants in the cases came within the ‘jurisdiction’ of France.
Context: The Jurisdiction Conundrum before Other bodies
The scope of jurisdiction, in particular ‘extra-territorial’ reach of human rights treaties, has long been a thorny issue before human rights courts and bodies. Across IHRL, it is now uncontroversial that jurisdiction not only applies throughout a state’s territory, but extends ‘extra-territorially’ in certain circumstances, notably where the state exercises ‘effective control,’ though exactly when, and according to what standard, is a matter of dispute. Considerable differences of approach relate to what this means: what sort of ‘control,’ or ‘control’ of what?
The issue has been uniquely controversial before the European Court of Human Rights (‘ECtHR’), which – reflecting to some extent its role – has taken a case by case approach, carving out exceptions to the ‘primarily territorial’ scope of the Convention. The Court, perhaps like the Committee in these cases, has often issued judgments that reflected the particular facts before the Court, but which have not been readily applicable in later contexts. The exceptions have however gradually expanded. At a minimum, they now include the situation where states exercise control of an area abroad (directly or through a subordinate administration subject to their decisive influence) (e.g. Bankovic 2001, Ilascu 2004, or Catan 2012), and where state agents exercise control of individuals (e.g. Pad v Turkey 2007, Al Skeini v UK 2011). Although the Court very recently took a restrictive approach to the application of that test (in the Georgia v Russia Judgment, see my criticism here), this appears to exclude jurisdiction only in active hostilities abroad in an international armed conflict, and does not influence the operation of the two part test. In addition, although the ECtHR is reluctant to recognise it, it has also found jurisdiction to apply in a range of other situations where the state’s exercise of power has had ‘effects’ abroad (as has been noted by e.g. dissent J. Albuquerque, para. 5, the Special Rapporteur’s in relation to children in NE Syria para. 8, by me in relation to the climate context here and by the applicants in these cases). The Court has also recently clarified in Hanan v Germany and Georgia v Russia that where states exercise investigative powers in respect of conduct abroad, the investigation falls within their jurisdiction (even if the underlying acts do not). The ECtHR’s ad hoc case by case approach to exceptions has been criticized for a lack of overall coherence (see here para. 67) and has certainly not been followed universally.
It contrasts with the approach of counterparts at the UN Human Rights Committee (‘the UNHRC’), African Commission on Human and Peoples’ Rights GC3, or Inter-American Court of Human Rights (‘IACHR’), which have not only addressed the issue in particular cases, but developed General Comments and Advisory Opinions (e.g. CCPR GC No. 36, GC No. 3 on the African Charter on Human and People's Rights and Advisory opinion Inter-American Court of Human Rights, 2017) that stand back and consider the standards with more perspective and distance from any one set of facts. Broadly, developments before these bodies suggest a shift to recognising circumstances in which jurisdiction stems from the control not only of areas of individuals, but also in certain circumstances the rights of individuals abroad. For example in its General Comment on the right to life (UNHRC GC36), the UNHRC found jurisdiction to be derived from ‘direct and reasonably foreseeable’ impact on the right to life (para. 22). As discussed further below, in the very recent decision against Italy, the UNHRC found the state’s failure to rescue a sinking ship had a direct impact on loss of life, and as a result of a ‘special relationship of dependency’, the deceased fell under Italian jurisdiction. The IACHR in turn, in its advisory opinion on The Environment and Human Rights, focused on the causal relationship between the state and environmental harm abroad. Other authorities, such as the UN High Commissioner on Human Rights report on privacy in a digital age, also support a control of rights approach, extending jurisdiction on various bases to ‘those whose privacy is being interfered with’ (here para. 34). Likewise, the joint statement of UN Special Rapporteurs, in its analysis specifically on ‘Extra-territorial jurisdiction of States over children and their guardians in camps, prisons, or elsewhere in the northern Syrian Arab Republic’, suggested that what matters for the applicability of a state’s obligations is the ‘extent of its control over the applicant or over some of their rights’ (para. 11).
In sum, across human rights courts, bodies and authorities, there has been significant evolution and expansion in recent years. The most restrictive approach is that of the ECtHR, where jurisdiction at a minimum covers ‘effective control of territory’ and the exercise of ‘state agent authority and control of individuals,’ and on some occasions where decisions of the state have consequences abroad (see Al Skeini para. 131). Other human rights courts and bodies now embrace broader forms of ‘rights control’, albeit slightly differently framed. The relevance of the topic and the extent of outstanding controversy is well illustrated by at least five separate decisions of human rights bodies in contentious cases in a period of a few months (against Italy at the UNHRC, Russia and Germany at the ECtHR and France in the present cases), adopting divergent approaches and, with the exception of the Committee's Decisions, being accompanied by strong dissents on the jurisdictional question.
Against this backdrop, as we examine how the parties in the present cases, and the Committee, dealt with the applicability of obligations under CRC to child nationals in NE Syria, the question arises whether the CRC has contributed to the evolution in jurisprudence outlined above. Has the Committee endorsed or lent support to the control of rights approach, and if so in what circumstances or subject to what conditions? As we will see, the failure to clearly articulate its reasoning leaves ample room for speculation and controversy.
Submissions on Jurisdiction in these Cases
Authors of the communication: The authors of the communications argued that ‘the continued presence’ of the children in the Kurdish-controlled camps has its ‘unique origin’ in France’s decision not to repatriate (first Decision para. 2.12, second Decision para. 5.7). Given the relatively more restrictive approach of the ECtHR case law it is perhaps surprising how much emphasis the applicants put on it rather than drawing to the Committee's attention the approach of its sister bodies. Nonetheless they argue that ECtHR case law supports the view that a State may exercise its jurisdiction extraterritorially when acts are performed by the State outside its national territory or when acts within the state produce effects outside the national territory (first Decision para. 2.12). The applicants argued, however, that the required nexus is a ‘“link of responsibility” for the fate of the nationals of States parties by virtue of the “decisive influence” they have over the authority detaining or holding them’ (first Decision para. 2.15 citing e.g. Ilascu and others v Moldova and Russia). Despite there being ‘no material or legal impossibility’ to repatriation (first Decision para. 2.14), the state decided not to intervene to prevent the violations (first Decision para. 2.15).
The State party: France contended that it lacked jurisdiction over the children (first Decision para. 4.1, second Decision para. 4.3). Unsurprisingly given its assertion of a restrictive approach, it relied, inter alia, on ECtHR jurisprudence, and in particular on the Bankovic v Belgium case, noting its lack of ‘territorial’ control (both Decisions para. 4.4) or control by French agents over the children held in the Kurdish-controlled camps (both Decisions para. 4.5). In an implicit rebuke to the Committee, in the second case, F.B. et al v. France, France appeared emboldened in its rejection of jurisdiction, despite having lost the argument in the first case. It explicitly rejected the approach to jurisdiction endorsed by the UNHRC in its General Comment No. 36. Recalling its comments at the time of the adoption of that document, it argued that the UNHRC’s approach was ‘overly broad’ and inconsistent with the ICCPR’s spirit and letter and ECtHR caselaw (second Decision para. 7.5).
In both cases French membership in an international coalition, and relations with the Kurdish group were dismissed as insufficient links, arguing that jurisdiction must be declined as otherwise it ‘would amount to extending the jurisdiction of [a country] to any territory controlled by a State with which it maintains relations or a military partnership’. It also rejected the idea that a ‘national decision’ would suffice to bring the individuals within the jurisdiction of the state (first Decision para. 4.6). Likewise, France argued that jurisdiction on the basis that ‘a state party had not acted’ would be ‘tantamount to […] accepting universal jurisdiction’ (para. 4.7). Regarding the authors’ argument that France has jurisdiction on the grounds of the nationality of the children, France affirms that the personal jurisdiction of a State (‘i.e., the well-established powers that the State exercises over its nationals abroad by reason of the link of nationality’) differs from its extraterritorial jurisdiction (‘i.e., the legal conditions under which a State may be held responsible for acts performed or producing effects outside its borders’) (first Decision para. 4.7, second Decision para. 7.4). Finally, it suggested jurisdiction based on ‘nationality’ would be discriminatory, as the Convention obligations apply regardless of nationality (first Decision para. 4.8).
Third-parties: Both Decisions cite third party interventions from the Consortium on Extraterritorial Obligations and academia, which add further dimensions to the case. Of particular note were the arguments in the first Decision that: customary international law provides the right (and perhaps the duty) of the States to protect their own nationals (first Decision para. 8.2) and the Convention should then be interpreted (as IHRL often is), in light of those parallel norms. The intervener noted the preparatory work of the Convention revealed a broad interpretation of the jurisdiction in favour of extraterritoriality, consistent with the purpose and spirit of the Convention (first Decision para. 8.5). It was argued that the extreme vulnerability of the children in this case and humanitarian circumstances required a flexible interpretation of extraterritorial obligations. It asserted the possibility of ‘taking territoriality out of the question’, referring to a concurring opinion of one ECtHR judge that ‘jurisdiction arises from the mere fact of having assumed [human rights] obligations and from having the capability to fulfil them (or not to fulfil them)’ (Al Skeini v UK 2011, dissent J. Bonello, para. 13). Addressing potential (or inevitable) floodgates concerns, in an approach that appears to have ultimately been reflected in the Decision, the interveners called for a ‘flexible and child rights focused approach … that responds to increasingly complex contexts, legal and factual, and… the extreme stakes for children in question’ (first Decision para. 8.8).
The Committee responded to these complex questions of jurisdiction in just three paragraphs (first Decision paras. 9.5-9.7) and four (second Decision paras. 8.5-8.8). It acknowledged the state’s concern that it could not be held accountable for ‘situations it did not create, over which is has no effective control’, solely on the basis of nationality. It does less to clarify on what basis the CRC can apply and the state does have jurisdiction, and what sort of ‘effective control’, if any, the state must have. It is unsurprising then that the first Decision has been criticised for not clarifying a clear threshold and justifying legally its conclusions on extraterritorial human rights obligations (see Milanovic, 2020). The second Decision does not seem to respond to these criticisms, and both cases are decided with the same rationale.
The Committee starts the relevant sections curiously, suggesting the question the Committee must answer is whether it has ‘competence rationae personae’, which it seems to equate with ‘jurisdiction’ under the treaty. (The French government had argued with some force that its power, or ‘competence,’ to act in respect of its nationals abroad which was not in dispute is distinct from having obligations to do so, and is distinct from whether the individuals were within the state's ‘jurisdiction’ under human rights law.)
It does, however, frame its discussion of jurisdiction by reference to a broad understanding of jurisdiction (citing again, curiously the ECtHR) when it states that ‘A State may also have jurisdiction in respect of acts that are performed, or that produce effects, outside its national borders’ (first Decision para. 9.6). It did not qualify this test as such, or return to the concept of ‘effective control’ or its understanding of that term. Instead the Committee proceeded to highlight considerations that were relevant in the determination of jurisdiction in the particular case. These are interesting and likely to have resonance beyond the case or the work of the Committee.
It relied on its own jurisprudence (e.g. C.E. v Belgium, Y.B. & N.S. v Belgium) to note that, in the migration context, States ‘should take extraterritorial responsibility for the protection of children who are their nationals outside their territory… through child sensitive, rights based consular protection’ (first Decision para. 9.6). In the present cases, it refers also to other compelling factors (first Decision para. 9) that lead it to conclude that the state party does have jurisdiction in these particular cases (first Decision para. 10, second Decision para. 9). These fall into two groups: first, the circumstances of the victims (‘extreme vulnerability’ of the children and the ‘deplorable conditions of detention’ that poses ‘an imminent risk of irreparable harm to the children’s lives, their physical and mental integrity and their development’); second, the state’s ‘capability and the power to protect the rights of the children in question’ [emphasis added]. On this basis, it concluded that France does exercise jurisdiction over the children on whose behalf the communications were submitted (first Decision paras. 9.7, 10). Communications No. 79/2019 and No. 109/2019 are therefore admissible (first Decision para. 11), as well as Communication 77/2019 (second Decision para. 10).
Analysis - Jurisdictional Factors, Nationality and Children’s Rights
The Committee does not purport to set down a standard for jurisdiction as such, but to explain the factors that contributed to its conclusion in this case. It is a matter of regret that the Committee did not elaborate a little more on the basic standard it was applying to determine jurisdiction, albeit in the context of specific cases with particular features. Facts and context will inevitably inform the approach to interpretation and how the rules were applied, but should not replace clear elaboration of the standard. While naturally at the forefront of Committee members’ consideration would be the resolution of the urgent complaint before it, understanding better its reasoning could have helped locate this case within the trends and developments around jurisdiction, and increased the influence of the Committee's jurisprudence on international legal development. Nonetheless one can foresee that the ‘circumstances’ identified by the Committee, and its approach, may be referenced in support of jurisdiction in other cases and contexts. They are certainly not exclusive, or required tests, and should not be taken as such. But they offer another perspective on the issue, drawing on some interesting - and some controversial - elements, and opening up a number of questions for further consideration.
Identifying and Locating Standards? The key uncertainty is what the Committee considers the threshold test to be. Is it endorsing an unqualified ‘conduct or effects abroad’ test, and if so on what basis? Does it dispense with the need for ‘effective control,’ even though it does note the importance of ‘effective control’ of a ‘situation’ in passing (first Decision para. 9.6)? It could be concluded that the effective control required, if any, was certainly not over territory or persons as such, but over the children’s situation. As noted, rethinking the test as it has been conceived in some cases – from an effective control of area or individuals to a ‘control of rights’ approach (see courts and bodies above and other calls by Cali, 2020 and Duffy, 2020) – is likely to prove essential to enable human rights law to keep pace with developments, from digital rights to climate change, which inherently defy notions of aerial or personal physical control.
It would have been more compelling decisions if the decisions had referred to the range of relevant developments, rather than being seen as an aberration or sui generis approach by the Committee. For example, in the cases at hand, French control over the rights of these children could arguably have been grounded, like the joint statement of UN Special Rapporteurs on the Syrian camps, on French ‘control […] over some of their rights’ (para. 11). It could have referenced the ‘direct and foreseeable impact’ of the decision not to intervene on the children’s rights and seriousness of the harm, reflecting General Comment No. 36 (para. 15), where the UNHRC underscores both foreseeability and seriousness of the harm.
The failure to clearly articulate standards makes it more difficult to grapple with concerns as to the limits of its reach. For example, what would be the limits of a test that essentially required a state to take positive action because it has the power and capability, and can?
A flexible and fact specific approach: The Committee’s Decisions are couched in terms of the facts of this case. What is clear from its approach then, is the promotion of a flexible, fact specific approach that enables decision makers to take into account a range of factors in determining whether the necessary jurisdictional nexus between individuals and the state is established. In that respect the Decisions’ emphasis on imminence, urgency and vulnerability points to contextual facts of relevance to the Committee’s Decision.
This flexibility does not set aside the need for normative clarity, and legal certainty, and we would certainly have benefitted from more clarification from the Committee. But will the Committee’s approach lend force to the idea that what is required is a flexible standard that can take into account the reality of the diverse relationships of control, rights dependency and impact that arise between an individual and the state, in an array of factual contexts? It raises the question of to what extent courts and bodies in reaching decisions should purport to set down ‘standards’ of broader application with any specificity, when they cannot – and perhaps should not try to – precisely delineate tomorrow’s realities. The experience of for example the ECtHR which has set down specific tests, and spent some time undoing them when they were inept in other contexts, may sound a word of caution as to the inadequacy of too prescriptive an approach. A flexible standard, applied by reference to indicative factors, as in this case, may have comparative advantages as well as challenges.
A holistic, rather than formalistic, approach: Likewise, the Decisions suggest the need to move beyond formal rigid distinctions that have characterised some case law and academic debate to date. Most obviously, this again involves the rejection of territorial or personal physical control requirements, suggests the normative link between the individual and the state sufficient to establish jurisdiction may arise from many other factors, legal and factual (see also the approach in the UNHRC Italy Decision that followed hot on its heels below). Much emphasis has been placed on nationality, as one such normative link at the heart of this case. But the Committee in fact suggests nationality as part of a range of factors, notably the ‘capability and power’ of the state, and the impact that its decision to take steps, or refrain from doing so, have on the individuals.
The Decisions also reject sharp distinctions, discussed in academic circles, between negative and positive obligations. Some academics have suggested negative obligations extend extra-territorially as state agents act abroad, but not positive obligations, while others questioned this (see notably Milanovic and Shany, 2011). The CRC supports the latter – and in my view stronger – approach, that in principle jurisdiction may apply also to positive obligations in respect of harm or risk abroad, depending on the rights at stake and all the circumstances.
Nationality as a basis for jurisdiction? Reliance on nationality in the Committee's first Decision has been criticised with some force by Milanovic who warns, in compelling terms, of the danger of distinguishing cases and basing extra-territorial jurisdiction on nationality. In part, this may potentially increase the burden on States, but it also creates unprincipled distinctions on grounds of nationality that do not favour human rights protection more broadly. Indeed breaking down discrimination on grounds of nationality has been an important advance in IHRL, reflected in the obligation of non-discrimination on grounds of nationality as laid down in article 2(1) of the CRC.
Distinctions based on nationality are therefore a dubious basis for a human rights court to determine jurisdiction based on the human rights treaties themselves. Would it however be different if particular duties are deemed to apply to nationals under broader international law, and the CRC is interpreted in light of those obligations (see third party intervener)? Was such an argument made out? Is it different, if the Decisions do not extend jurisdiction solely on the basis of nationality, but on the state’s power to protect, even if de facto nationality was undoubtedly one (in this case important) factor in establishing that de facto power to protect? The Decisions do not suggest obligations are owed to all nationals (which may be unduly onerous in some contexts) but to identifiable children in the context of the camps. Nor does it indicate that jurisdiction depends on nationality, raising the question whether non-nationals may also be covered in certain situations, where for example there were other similar ‘special relationships’ or special characteristics of the victims that applied (see e.g. UNHRC Italy below).
Other factors: ‘Special Relationship of dependency’ and the UNHRC A.S. et al. v Italy case
Also worthy of note for the crossover to the present Decisions is another very recent decision of the Human Rights Committee (HCR) in A.S. et al v Italy of 27 January 2021. The HCR found that Italy had the obligation to protect the life of shipwrecked migrants who drowned in the Mediterranean Sea just outside its territorial waters. In its majority decision (5 dissented) the HCR asked questions reflecting standards previously established, such as inter alia whether the migrants were ‘within the power or effective control of that State party’ (para. 7.4, reflecting its General Comment No. 31 para. 10) and whether ‘the risk of an extra-territorial violation [was] a necessary and foreseeable consequence [of the state's conduct] judged on the knowledge the State party had at the time’ (para. 7.5, reflecting GC 36) [emphasis added]. In notable parallels to the CRC cases, the majority’s conclusions based jurisdiction in large part on the fact that ‘in the particular circumstances of the case, a special relationship of dependency had been established between the individuals on the vessel in distress and Italy’ (para. 7.8) [emphasis added]. Also mirroring the Committee's Decisions, in order to draw this conclusion, the HRC relies on a combination of factual (e.g. contacts between the vessel and the Italian rescue teams) and legal (e.g. duty to respond to calls of distress provided by the international law of the sea) factors.
There are differences but also similarities with the CRC cases, so far as there had been a call for help in both, and the states in question were in a position to provide it, but failed to do so. The violations could then be said to be directly and foreseeably linked to those decisions not to provide support. The HCR decision is more explicit than the CRC in terms of the relevance of broader international law, where additional obligations arising from the law of the sea can be taken into account in a holistic interpretation of human rights treaties. At the same time, there were important dissenting opinions, including one suggesting that the decision ‘fails to distinguish between situations in which states have the potential to place [individuals] under their effective control …, and situations involving the actual placement of individuals under effective state control’ (dissent Shany, Heyns and Pazartzis para. 2) [emphasis added]. This begs similar questions as to when and how this ‘placement’ occurs, but makes clear that in those member's view the ‘direct and foreseeable impact’ test required more than failure to act when opportunity – or perhaps even moral responsibility – presents itself. This perhaps reflects concerns, likely to be at the heart of ongoing discussions around these decisions, as to what, if anything, the implications are for the applicability of human treaties to states that have the power to prevent violations, as is surely quite often the case, yet fail to do so.
Other factors? Children without Protection? Finally, a crucial question arises in relation to the special obligations owed to children under IHRL, which are clear from the CRC itself. What if anything do they mean for the interpretation of ‘jurisdiction’? Multiple references to children and vulnerability in the Committee’s Decisions may imply that, in the spirit of the CRC, the fact that the victims were children was one important factor in the Committee’s approach, but again this is not articulated by the Committee. The heightened obligations in the CRC will, after all, be of little import if they are deemed not applicable at all, particularly where the Decisions note the absence of any other state authority with ‘the means or the will to care for the children’. Taking this into account would be consistent with other courts and bodies which have held that human rights treaties should be interpreted to avoid a vacuum of protection.
The situation to be addressed in L.H. et al v France and F.B. et al v France is an urgent one in which political solutions have proved alarmingly elusive. The Decisions add their voice and legal authority to the chorus of international concern (e.g. The Special Rapporteur’s in relation to children in NE Syria, 2020 and Human Rights, 2021) on the failure of states to deal in a principled way with a humanitarian disaster, not to mention the impunity gap and the potential security challenge the camps represent, now and down the line. It has the potential to help reframe the discussion on an issue of extreme political controversy, through the prism of law, rights and responsibility. It is to be hoped that the Decisions will catalyse France, and other similarly situated states – at least 50 of whom have nationals in the camps (Lead Inspector General quarterly report on Operation Inherent Resolve (OIR), p. 23) – to engage more constructively with the moral and security imperative to secure protection for these children. While it is too early to assess its impact, the Decisions are a welcome step towards addressing an extremely important human rights problem, and agitating for a principled way out of the impasse.
In the Committee's Decisions, like the one that followed promptly from the UNHRC, the question of jurisdiction and the scope of extraterritorial obligations have been addressed in a way that takes closely into account dire humanitarian needs, exceptional circumstances of vulnerability and the stark failure of states with established capacity to respond to urgent pleas. The exceptional nature of the facts clearly underpins the Committees’ approach in both cases. One can reasonably assume that moral outrage informed approaches to jurisdiction in both. Facts often shape the law, and have consistently done so on jurisdiction. How much one can extrapolate from such exceptional cases for future cases remains to be seen.
Both the Committee and UNHRC cases certainly reflect the rejection of strict formalistic approaches to jurisdiction, and a shift to a functional approach, based on the power of State parties and the impact of their acts and omissions. They suggest the willingness of human rights bodies to take flexible approaches where, upon holistic consideration of all the facts, there are sufficient normative links, and the state in the particular situation had sufficient effective control over the rights of individuals and their fate. They perhaps also implicitly reflect the need (acknowledged across human rights practice) to prevent vacuums of protection, for those beyond the ‘effective control’ of any (other) state, whether on international waters or camps run by non-state actors in NE Syria.
At the same time, the failure to anchor the Decisions more clearly in legal standards, such as an evolving approach to ‘control of rights’ risks, tempers the force of the Decision, and undermines legal certainty. Five Decisions on jurisdiction in as many months, and multiple dissents, will certainly ensure that this conversation continues.
- An acte de gouvernement is an administrative act enacted by the executive authorities, that has emerged from the jurisprudence of the Conseil d’Etat. Accordingly, the administrative judge - the only competent judge regarding administrative acts -, is not competent to interpret or ruled upon that type of act. Therefore, such an act enjoys full jurisdictional immunity for reasons essentially of political or diplomatic expediency.