Chapter 12 The Applicability of Human Rights Treaties in Maritime Law Enforcement

In: Peaceful Maritime Engagement in East Asia and the Pacific Region
Author:
David S. Goddard
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Abstract

Human rights treaties contain diverse and complex obligations of relevance to maritime law enforcement. These include those that are directly associated with relevant activities, such as the use of force or detention of individuals, as well as others that may arise in the course of maritime law enforcement, including positive obligations to protect life.

Before these substantive obligations can arise, however, it must be established that the relevant treaty is applicable, a question that generally turns on the existence of a jurisdictional link between States and individuals. This is a contentious area of law and is especially complex in the context of maritime law enforcement. Although the necessary link may be established on the basis of traditional notions of jurisdiction over a State’s own territory, or over vessels flying its flag, it may also be established extraterritorially through the exercise of effective control over spaces or individuals. Undoubtedly, the necessary link may be established in the course of maritime law enforcement. However, determining with precision and certainty whether and when this will be the case in the course of a specific, dynamic, operation can be exceptionally difficult. Recent decisions of the Human Rights Committee arguably make this task no easier.

1 Introduction

The applicability of human rights treaties in maritime law enforcement (mle) is important for two main reasons.1 First, it can provide additional mechanisms by which a State may be held accountable for its actions, including, for some States, the possibility of complaints brought by individuals. Second, the application of human rights law may entail additional substantive obligations, over and above those that arise under other bodies of law, including, most notably, the law of the sea.

Consider the example of force used to compel a vessel to stop and yield to enforcement action. From a law of the sea perspective, it is well established that the use of force is to be avoided, and, where it cannot be avoided, its use must go no further than what is reasonable and necessary in the circumstances.2 In practice, this normally requires the giving of warnings and a process of escalation through increasingly forceful measures.3 However, whatever the substance of these obligations, the options for bringing States to account for breaching them may be very limited. Even where compulsory dispute resolution is available – which will not always be the case4 – it will not be available to individuals.

On the other hand, not only does human rights law require force to be necessary and proportionate, but it also carries other substantive obligations. The right to life under human rights law has been interpreted as requiring, for example, that operations involving the use of force be planned and controlled so as to reduce the risk that lethal force will be required,5 as well as requiring that individuals using force have been properly trained to do so.6 It also carries obligations to investigate deaths brought about through the use of force, and to hold individuals to account where their use of force is found to have been unlawful.7 Moreover, human rights treaties may allow for individual rights of complaint,8 or at least further avenues for accountability under a range of other mechanisms.9

The potential significance of human rights law is not limited to the use of force. For example, the right to liberty and security of the person not only limits the circumstances in which individuals may be lawfully detained, but also entails a range of procedural obligations when they are.10 The right to life may require States to make provision for rescue services, including air-sea rescue,11 and potentially to provide assistance to particular individuals in distress at sea.12 The prohibition of non-refoulement may prevent the return of individuals to a State in which there is a real risk that they fundamental rights will be violated.13 Even where enforcement action would be otherwise lawful, it may have to be balanced against competing freedoms of expression and assembly,14 such as in the case of protest at sea.15

These rights may provide demanding standards against which States’ conduct in mle is to be measured. However, their relevance as a matter of law depends, to a large extent, on the applicability of the human rights treaties under which they are protected. Notwithstanding the possibility that certain rights might apply to a specific situation as a matter of custom,16 it is the applicability of a particular human rights treaty that will bring into play the possibility for accountability and redress under its provisions. Establishing whether or not this is the case can be especially difficult in the context of mle, which will often take place beyond a State’s territory, and which will therefore engage the vexed subject of the extraterritorial application of human rights treaties.17

This crucial threshold of applicability is the subject of this essay. It does not purport to provide a comprehensive answer to the questions involved, but rather to explain their contours and identify the key points of doubt and controversy. It does so by considering, first and foremost, the applicability of the European Convention on Human Rights (echr);18 however, reference will also be made to other relevant instruments, including the International Covenant on Civil and Political Rights (iccpr)19 and American Convention on Human Rights (achr).20

This essay first gives a brief summary of the applicability of human rights treaties in general, before considering how those principles apply in the context of mle, particularly those that take place outside a State’s territory. To assist the analysis, it describes a generic maritime enforcement operation and asks when, during this narrative, the threshold of extraterritorial applicability will be crossed. At certain stages of the operation, it is relatively uncontroversial that the necessary jurisdictional link will be established, whereas at others the situation is less clear. The analysis does not aim to resolve these issues, but rather to sketch out the key areas of doubt and controversy.

2 The Applicability of Human Rights Treaties

The echr, like the iccpr and achr, contains an express applicability provision, applying the echr to ‘everyone within [a State party’s] jurisdiction’.21 The equivalent provisions in the iccpr22 and achr23 are drafted in slightly different term; nevertheless, the applicability of both turns, as it does for the echr, on whether an individual is within a State’s jurisdiction.24 However, ‘jurisdiction’ should not be read as coincident with its meaning in other contexts. Instead, it has developed as a standalone concept, albeit incorporating elements from wider international law, as this essay will explain.

Jurisdiction can be either territorial or extraterritorial. However, while the necessary jurisdictional link will usually be established in the former case simply on the basis of an individual being within a State’s territory, the exercise of extraterritorial jurisdiction is exceptional, requiring ‘special justification in the particular circumstances of each case’.25 Quite how easily such jurisdiction can be established has been a major point of contention as the law has developed. While the jurisprudence has evolved over time, and differences have arisen in the approaches taken by different courts and treaty bodies, the essential point remains that extraterritorial jurisdiction must be established on the facts of the case at hand.

Of particular importance in the context of mle, the necessary jurisdictional link has been recognised as arising between a State and the vessels that fly its flag, at least for the purposes of some treaties.26 However, more generally, it can arise on either a spatial or personal basis: through the effective control that a State exercises over an area; or through the authority and control that a State’s agents exercise over an individual.27 Importantly, at least so far as the echr is concerned, while the former entails the applicability of the whole treaty, where jurisdiction is established on a personal basis, rights may be ‘divided and tailored’.28 This means that only those rights pertinent to a particular situation need apply – and, crucially, it is no bar to applicability that a State may not be able to give effect to the full range of rights, as would be the case where jurisdiction is established through effective control over an area.

Although these bases for jurisdiction are now well-established in principle, their precise contours are less certain. In the case of personal jurisdiction, a particular issue is exactly which forms of authority and control will be sufficient. While it is now uncontroversial that the jurisdictional link will be established in respect of an individual who has been detained,29 it is less clear whether – or at least when – it might be established through the use of physical force alone.

3 Applicability of Human Rights Treaties to Maritime Law Enforcement

mle activities may be conducted in every maritime zone, and thus either within or beyond areas that form part of a State’s territory. A State’s sovereignty extends throughout its internal waters and territorial sea, as well as throughout any archipelagic waters it may have.30 As such areas therefore form part of the State’s territory,31 it follows that jurisdiction for the purpose of human rights treaties is established within them on a territorial basis, just as it is within a State’s land territory.32

However, a State may also conduct mle activities beyond its territorial sea, in any contiguous zone it may claim,33 or to protect the sovereign rights it enjoys in an exclusive economic zone or on the continental shelf.34 It may also take extraterritorial enforcement action against vessels it has pursued under the rules of hot pursuit,35 against vessels engaged in piracy,36 or in a range of other circumstances.37 In all of these situations it will be necessary to consider whether the threshold of extraterritorial applicability is crossed on the basis of the facts at hand.

In considering this question, it is helpful to sketch out what how a typical mle operation might typically be conducted.38 First, State authorities will become aware of a target vessel in respect of which it wishes to conduct law enforcement activity. Perhaps following a period of surveillance, a decision will be taken to interdict the vessel. The interdicting ship will usually make contact with the vessel, instructing it to stop and submit to investigation. If it doesn’t comply, there may be an escalation through increasingly forceful measures – including warning shots, as well as non-disabling and disabling fire – to bring it under the interdicting ship’s control.39 At some point, the interdicting ship may send a boarding party, which might use force to take control of the vessel and maybe detain those on board. The vessel itself might then be escorted or even towed to port, while individuals may be detained and brought onboard the interdicting ship, perhaps with a view to prosecution.

Working backwards through this narrative, at the point that detained individuals are brought on board the interdicting ship, the threshold of applicability will almost certainly have been crossed. As noted above, one of the specific situations in which the necessary jurisdictional link has been recognised, at least so far as the jurisprudence of the ECtHR (European Court of Human Rights) is concerned, is in respect of the jurisdiction enjoyed by a State over vessels flying its flag. More generally, detention is the archetype of state agent authority and control over individuals, and well established as a circumstance giving rise to extraterritorial applicability.

But what of individuals on the target vessel? If they are detained, in the sense of being confined to a particular location on board, then there is no reason to doubt that the threshold of authority will have been crossed, just as it would on land. However, what if they are able to move around the vessel, or a large part of it, but the vessel as a whole is under the control of the interdicting ship? In essence, the question is whether authority and control over individuals through the control being exercised over the vessel as a whole, is – or can be – sufficient.

The jurisprudence of the ECtHR would suggest an answer in the affirmative. In Medvedyev and Others v France40 the Grand Chamber of the ECtHR considered an interdiction of a Cambodian vessel by French forces, in which the vessel was ultimately placed in tow, with the crew remaining on board. Although the applicants had claimed to have been confined to their cabins, this was disputed, and does not appear to have been determinative.41 Considering the question of extraterritorial applicability, the Grand Chamber held that it had been established as a consequence of the ‘full and exclusive control over the [interdicted vessel] and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France’.42 Indeed, in considering the related question of whether the crew had been deprived of its liberty, the Grand Chamber found this to have been the case because ‘the ship’s course was imposed’ by the interdicting authorities.43

As a matter of principle, this isn’t an especially surprising result. For applicability to rest on the degree of freedom individuals enjoy within a vessel, while the vessel itself is under another’s control, would seem somewhat arbitrary. Arguably, it would also be arbitrary for applicability to rest on the specific modality of the control exercised over the vessel – whether, for example, the vessel is placed under tow, as in Medvedyev, or yields to instruction. Nevertheless, while Medvedyev is an important point of reference, particularly in the context of the echr, it remains a relatively unusual instance of these issues being considered in detail,44 and it would perhaps be a mistake to extrapolate too far from its particular facts, or to assume that another court would necessarily follow its reasoning.

Moving one step back, what about actions that an interdicting ship might take to compel the target vessel to yield? As noted above, this will generally involve an escalation through a series of forceful measures, which undoubtedly have the potential to affect the right to life. The crucial question, however, is whether the use of such measures is sufficient to give rise to the applicability of the right to life in the first place. Put another way, can the use of force against an individual amount – absent anything else – to an exercise of authority and control, such as to establish extraterritorial applicability according to the personal model?45

This is a key area of controversy, and an issue on which different courts and treaty bodies appear to have taken different positions. The Human Rights Committee (hrc), for example, has adopted an entirely functional approach. For example, in its General Comment 36, dealing primarily with the right to life under Article 6 of the iccpr, the hrc considers that States’ obligations are engaged extraterritorially in respect of ‘persons located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner’.46 According to this position, there seems little doubt that the hrc would consider the right to life to be engaged when a State uses force to effect an interdiction.

The Inter-American Commission on Human Rights has adopted a similarly functional approach. For example, in Armando Alejandre Jr, Carlos Costa, Mario de la Peña and Pablo Morales v Republic of Cuba,47 the Commission found Cuba’s human rights obligations to have been engaged when Cuban military aircraft allegedly shot down two civilian aircraft in international airspace.48 It has similarly held Ecuador’s obligations potentially to be engaged when members of its army shot Colombian citizens in Colombian territory,49 and Colombia’s obligations to have potentially been engaged when bombs dropped by its armed forces in Ecuadorian territory were alleged to have harmed Ecuadorian citizens.50

It has been argued that such an outcome is the inevitable conclusion of the reasoning that underpins the personal model of jurisdiction, and that to deny its application in the case of physical force would be to make an arbitrary distinction from other forms of authority and control, such as detention.51 Nevertheless, at least so far as the ECtHR is concerned, physical force is treated differently from other forms of authority and control. Looming especially large in the Court’s jurisprudence is the case of Banković and Others v Belgium and Others,52 in which the Court held the echr not to apply in the case of individuals harmed by nato’s bombing of a radio station in Belgrade during the conflict in Kosovo.53 In so doing, the Court set out a very limited conception of extraterritorial jurisdiction, which was largely limited to effective control over territory, albeit recognizing certain other specific situations, such as in the case of vessels flying under a State’s flag.54

Admittedly, the ECtHR has subsequently expanded its conception of extraterritorial applicability. As noted above, in Al-Skeini and others v United Kingdom, it provided a restatement of its position,55 recognizing the potential for extraterritorial applicability to arise according to both personal and spatial models. However, it stopped short of unambiguously rejecting its earlier approach in Banković. While the Court held that individuals were subject to the authority and control of the respondent State’s forces when the latter used armed force against them, this was apparently the case only in the context of the respondent State’s forces exercising ‘public powers’.56 This arguably allowed the Court to reconcile its findings on the facts in Al-Skeini with the decision in Banković, although the continuing authority of the earlier decision has been questioned.57 The ECtHR appears recently to have reaffirmed that Banković remains good law,58 at least as an exception to the applicability of the echr in the case of armed force used during the active phase of hostilities in international armed conflict.

To some extent, therefore, whether or not physical force used in interdiction will alone give rise to extraterritorial applicability remains in doubt. While it seems clear that some bodies, such as the hrc, will have no difficulty in finding the required jurisdictional link to have been established, for others – the ECtHR in particular – it is less certain. While it is plausible that the ECtHR might consider the use of force in the course of an interdiction to be analogous to that used in Al-Skeini, i.e., in the context of something akin to the exercise of public powers, it cannot be excluded that it will instead follow reasoning closer to that in Banković. As things stand, the jurisprudence is not clear enough to draw a firm conclusion.

However, stepping even further back, is it possible that a vessel could be subject to a State’s jurisdiction, such as to give rise to extraterritorial applicability, before an interdiction even begins, i.e., right from the start of the narrative set out above? This would be the case if extraterritorial applicability were established on a spatial, rather than personal, basis – if the target vessel is within an area over which the State in question exercises effective control.

As a matter of principle, there seems no fundamental reason why this could not be possible at sea, just as it is on land. However, if the same standards are applied,59 the key question is whether a State will ever exercise sufficient control over an area of sea. The standard has been taken to be the ability to give effect to the full range of rights protected under a treaty,60 and it is difficult to conceive of many situations where control over an area of sea will meet that standard. Nevertheless, it has been suggested that the standard could be met, for example, in the region where a multinational force conducts a counter-piracy operation.61 However, this would require a wholly different standard to be applied. In the case of the operation cited, no more than a handful of warships conducted counter-piracy operations – and no other mode of control – over a vast area of ocean. It has also been suggested that there might be a radius around State ships within which they exercise effective control, wherever they may be.62 However, this conflates the potential for a ship to exercise control with the question whether it actually does so; and, if a ship does do something to exercise control over another vessel, then arguably this is really just an incidence of State agent authority and control under the personal, rather than spatial, model.

Notwithstanding these objections, the possibility of a State exercising sufficient control over an area of sea cannot be ruled out. This is perhaps most plausible in relatively small areas, such as safety zones established around installations.63 Even then, the control exercised by the State in question will be limited to a relatively narrow range of security-related matters – and still rather different from the level and type of control that would allow a State to give effect to the full range of rights. Consequently, extraterritorial jurisdiction on this basis remains decidedly speculative.

4 Conclusion

This short essay has sought to sketch out some of the issues surrounding the applicability of human rights treaties to mle operations, particularly those that are conducted beyond a State’s territory. This threshold question is important not only for the substantive rights that may be engaged, but also for the possibility that States might be brought to account through additional mechanisms that may become available, including the possibility of individual complaints.

Considering a generic mle operation, it is relatively uncontroversial that the threshold will be crossed at least at the point that individuals are detained, especially so if they are brought onboard the interdicting ship. There is also good reason to think that the threshold can be met where authority and control is exercised over individuals via control over their vessel as a whole. However, it remains much less clear whether the necessary jurisdictional link will be established prior to control over the vessel being established, including at the point that forceful measures might be employed. On this question, there are considerable differences in the approaches taken by different courts and bodies, and a coherent account remains elusive. Even more speculative is the possibility that extraterritorial applicability could arise from effective control over an area of sea; although not inconceivable, it seems unlikely that the standard established on land could be met at sea in all but the narrowest of circumstances, if at all.

1

The views expressed in this article are the author’s own and do not necessarily reflect the views of the United Kingdom government.

2

See, in particular, M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea) (Merits, Judgment of 1 July 1999) itlos Reports [155], where the International Tribunal for the Law of the Sea held that ‘…the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law’.

3

Ibid. [156].

4

Considering, for example, the options available under the United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 unts 397 (unclos), aside from the issue that some States are not parties, unclos permits States to opt out of its compulsory dispute resolution provisions for some purposes, including disputes concerning military activities. Ibid. art 298(1)(b).

5

See, for example, McCann and Others v the United Kingdom Series A no 324 (ECtHR), in which the UK was held by the European Court of Human Rights not to have properly controlled an operation, so as to avoid a situation where special forces soldiers were required to use lethal force. Ibid [202]–[214]. See also Nadege Dorzema et al v Dominican Republic (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 251 (24 October 2012) [84].

6

See, for example, Nadege Dorzema (n 5) [81]; ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’ (Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August–7 September 1990) UN Doc A/conf.144/28/Rev.1, 112 paras 18–20.

7

See, for example, Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (oup 2009) 188–89. The European Court of Human Rights has held the procedural obligations under the right to life to continue ‘to apply in difficult security conditions’. Al-Skeini and Others v the United Kingdom echr 2011 [164].

8

As is the case for the echr, in respect of which individuals may bring cases against States at the European Court of Human Rights. However, such a right does not exist in every human rights system.

9

Such mechanisms include inter-State complaints, as well as periodic review of State implementation by individual treaty bodies, or under the UN Human Rights Council’s system of Universal Period Review.

10

For a detailed consideration of this subject, see Anna Petrig, Human Rights and Law Enforcement at Sea: Arrest, Detention and Transfer of Piracy Suspects (Brill Nijhoff 2014).

11

See, for example, Milan Furdik v Slovakia (Admissibility) App no 42994/05 (ECtHR, 2 December 2008). The Court held that ‘…the State’s duty to safeguard the right to life must also be considered to extend to the provision of emergency services where it has been brought to the notice of the authorities that the life or health of an individual is at risk on account of injuries sustained as a result of an accident. Depending on the circumstances, this duty may go beyond the provision of essential emergency services such as fire-brigades and ambulances and, of relevance to the instant case, include the provision of air-mountain or air-sea rescue facilities to assist those in distress’. Ibid.

12

For a recent example, including some interesting conclusions on applicability, see UN Human Rights Committee, ‘Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning Communication No. 3042/2017’ (Communication submitted by A.S., D.I., O.I. and G.D. (represented by counsel, Mr. Andrea Saccucci)) (Views adopted 4 November 2020) UN Doc No ccpr/C/130/D/3042/2017.

13

For an instance of the principle of non-refoulement being applied in the maritime domain, see Hirsi Jamaa and Others v Italy echr 2012.

14

Such freedoms are protected under several instruments. In the case of the echr, the freedoms of expression and assembly are protected by articles 10 and 11 respectively. For an example of the freedom of expression in the maritime domain, see Women on Waves and Others v Portugal App No 31276/05 (ECtHR, 3 February 2009), which concerned the provision of family planning services from a vessel located in Portugal’s territorial sea.

15

See, for example, The Arctic Sunrise Arbitration (The Kingdom of the Netherlands v The Russian Federation) (Merits) pca Case No 2014-02 (14 August 2015).

16

The extent to which this may be the case is beyond the scope of this essay.

17

The question of the extraterritorial applicability of human rights treaties has generated copious literature. See, for example, Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (oup 2011); Karen da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Martinus Nijhoff 2013). Nevertheless, many issues remain unresolved.

18

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (echr).

19

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171 (iccpr).

20

American Convention on Human Rights: ‘Pact of San José, Costa Rica’ (signed 22 November 1969, entered into force 18 July 1978) 1144 unts 144 (achr).

21

echr (n 18) art 1.

22

‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant …’. iccpr (n 19) art 2(1).

23

‘The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms …’. achr (n 20) art 1(1).

24

There remains a minority view, shared by the United States, that article 2(1) iccpr should be read as requiring an individual both to be within a State’s territory and subject to its jurisdiction. For a critical account of this issue, see, for example, Milanovic (n 17) 222–27; Beth Van Schaack, ‘The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change’ (2014) 90 Intl L Studies 20.

25

Banković and Others v Belgium and Others echr 2001–xii 333 [59]–[61].

26

In the context of the echr, this was expressly recognised in ibid [73]. The principle was applied in Hirsi Jamaa and Others v Italy echr 2012, in which the Grand Chamber of the European Court of Human Rights found that irregular migrants were within Italy’s jurisdiction when they were brought on board ‘military ships flying the Italian flag’, while those ships were on the high seas. ibid [76]–[78].

27

Al-Skeini (n 7) [130]–[142]. This is sometimes referred to as the ‘personal model’.

28

Ibid. [137].

29

See, for example, Al-Saadoon and Mufdhi v the United Kingdom echr 2010. The case concerned the applicability of the echr to Iraqi nationals detained by UK forces in Iraq, and held in a UK-controlled detention facility.

30

unclos (n 4) art 2(1).

31

See, for example, James Crawford, Brownlie’s Principles of Public International Law (8th edn, oup 2012) 203; Malcolm N Shaw, International Law (7th edn, cup 2014) 352. See also International Law Commission, ‘Draft Articles on the Law of Treaties with Commentaries’ [1966] 2 United Nations yb of the Intl L Commission 187 (Draft Articles on the Law of Treaties with Commentaries), 213. Admittedly, this point of view is not universally held. See Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (cup 2009) 226.

32

This is a common conclusion, though not always explained in detail. See, for example, John E Noyes, ‘The Territorial Sea and Contiguous Zone’ in Donald R Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (oup 2015) 104.

33

unclos (n 4) art 33.

34

Ibid., arts 56, 77.

35

Ibid., art 111.

36

Ibid., arts 105, 110(1)(a).

37

For example, under unclos, States enjoy a right of visit in respect of foreign vessels suspected of involvement in the slave trade or unauthorised broadcasting, as well as in respect of vessels without nationality. Ibid., art 110. Enforcement action against foreign vessels can also be permitted under bilateral or multilateral treaties, agreed on a case-by-case basis, or authorised by the UN Security Council.

38

For an example of a publicly available account of relevant practice, see Royal Netherlands Navy, ‘Fundamentals of Maritime Operations: Netherlands Maritime Military Doctrine’ (2014) 349–54.

39

Ibid., 351–52.

40

Medvedyev and Others v France echr 2010.

41

The facts are set out at ibid., [9]–[19].

42

Ibid., [67].

43

Ibid., [74].

44

Consistent with this, see JHA v Spain, in which the Committee Against Torture considered, in the context of the Convention Against Torture, a vessel to be within the jurisdiction of a State providing assistance from the point the vessel had been ‘rescued’, at which point it was placed under tow. UN Committee Against Torture, ‘Decision of the Committee Against Torture under Article 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment Concerning Communication No 323/2007’ (Communication submitted by jha on behalf of pk et al, concerning Spain) (21 November 2008) UN Doc cat/C/41/D/323/2007 (jha v Spain) para 8.2.

45

For a discussion of the issue in the context of a case in which the UK High Court decided that physical force could be sufficient to bring about the extraterritorial applicability of the echr, see David S Goddard, ‘Applying the ECHR to the Use of Physical Force in Al-Saadoon’ (2015) 91 Intl L Studies 402. Notably, this aspect of the decision was reversed on appeal. See Al-Saadoon and others (Appellants) v The Secretary of State for Defence (Respondent), Rahmattullah and another (Appellant) v The Secretary of State for Defence and another (Respondents) [2016] ewca Civ 811.

46

UN Human Rights Committee, ‘General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life’ (30 October 2018) UN Doc ccpr/C/gc/36 para 63.

47

Armando Alejandre Jr, Carlos Costa, Mario de la Pena y Pablo Morales v Cuba, Case 11.589, Report No 86/99, Inter-American Commission on Human Rights, oea/Ser.L/V/ii.106 Doc 3 rev at 586 (1999).

48

Ibid. [1].

49

Danny Honorio Bastidas Meneses and others v Ecuador, Admissibility, Petition 189–03, Report 153/11 (iachr, 2 November 2011).

50

Franklin Guillermo Aisalla Molina v Ecuador, Case ip-02, Report No 112/10, Inter-American Commission on Human Rights, oea/Ser.L/V/ii.140 Doc 10 (2010).

51

See, for example, Milanovic (n 17) 207–9.

52

Banković (n 25).

53

Ibid. [6]–[11].

54

Ibid. [71]–[73].

55

Al-Skeini (n 7) [130]–[142].

56

Ibid. [149].

57

Including by the UK High Court, as discussed at Goddard (n 45) 418, though noting that this aspect of the High Court’s decision was ultimately reversed on appeal.

58

Georgia v Russia (ii) echr 2021 [127]–[144]. For discussion, including of this aspect, see Marko Milanovic, ‘Georgia v. Russia No. 2: The European Court’s Resurrection of Bankovic in the Contexts of Chaos’ (ejil Talk!, 25 January 2021) <https://www.ejiltalk.org/georgia-v-russia-no-2-the-european-courts-resurrection-of-bankovic-in-the-contexts-of-chaos/> accessed 28 September 2021.

59

For a statement of the relevant standard in the context of the echr, see Al-Skeini (n 7) [138]–[139].

60

See, for example, the views of the UK High Court in Al-Saadoon and Others v Secretary of State for Defence [2015] ewhc 715 (Admin) [67] (‘…it follows that the test of effective control over the area will not be satisfied unless the state has the practical ability to secure the full package of Convention rights’.).

61

Robin Geiß and Anna Petrig, Piracy and Armed Robbery at Sea (oup 2011) 108.

62

Ibid.

63

unclos (n 4) art 60.

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