Law beyond borders: ECHR considers European Convention’s extra-territorial application

Chagos Islanders v United Kingdom [2012] ECHR, Application no. 35622/04 (11 December 2012)

Summary

The European Court of Human Rights rejected, on admissibility grounds, claims by former Chagos Islands inhabitants against the UK. The Court considered the extra-territorial application of the European Convention on Human Rights.

Facts

The history of the treatment of inhabitants of the Chagos Islands, which were colonised by the United Kingdom, is long and unfortunate. In short, inhabitants were required to move from the archipelago between 1967 and 1973 as a consequence of an agreement between the United States and the United Kingdom to establish defence facilities on Diego Garcia, the largest of the islands. The inhabitants were moved to nearby islands including Mauritius and the Seychelles, which were also then under UK control. Prior to this in 1965, the British Indian Ocean Territory (“BIOT”) was established as a UK colony encompassing the Chagos Islands. Mauritius was not included in the BIOT and subsequently became an independent state.

Some islanders who settled in Mauritius (but not those who settled elsewhere) received compensation from the UK via the Mauritian government following the resettlement and also in a subsequent settlement deal reached between Mauritius and the UK government in1982. For a limited period, former inhabitants were also offered the opportunity to resettle on the Chargos Islands (aspects of this arrangement are contested by the applicants).

The inhabitants brought a number of proceedings in the UK, however in general terms the claims were dismissed for diverse reasons including that the courts considered the inhabitants had no proprietary interests that could form the basis of a claim, they had entered into binding settlements with the UK government extinguishing their right to bring further claims and had brought their claims outside the relevant limitation periods.

The claim

A group of former Chagos Islands inhabitants submitted a claim to the ECHR under the Convention on the basis that the UK had breached the prohibition on inhuman or degrading treatment (article 3), the rights to private life and home (article 8), the right to the benefit of their possessions (article 1 of the Optional Protocol) and they had not received an effective remedy (article 13).

Decision

The ECHR rejected the claims on three preliminary admissibility grounds:

• It did not have jurisdiction to determine a claim arising in a territory that did not fall within the United Kingdom’s “jurisdiction” under article 56(1) of the Convention; and
• The claimants had received compensation exhausting their claims; or
• The claimants had not exhausted all domestic remedies (a pre-condition to bringing a claim before the court).

While the case largely turned on the specific litigation history, the key aspect of this case as a development in international jurisprudence is the court’s approach to the question of jurisdiction.

Jurisdiction

Article 1 of the Convention requires contracting parties to secure rights and freedoms to everyone within their “jurisdiction”. However, article 56 – a relic of colonial era Europe – provides that a contracting party can elect to extend the application of the convention to “all or any of the territories for whose international relations it is responsible” by formal notification and, for the right of individual petition, by an additional declaration.

In a series of cases in 2011 concerning the UK’s treatment of detainees during the occupation in Iraq, the ECHR confirmed that a state’s “jurisdiction” for the purpose of article 1 will extend beyond the state’s territory where the state exercises “effective control” over the territory or area where the act or omission occurs. The UK was required to secure rights and freedoms under the ECHR to those persons detained in UK-operated detention facilities when the UK was acting as an administrative authority (see for example most recently Al-Skeini and ors. v UK and Al-Jedda v UK) since a state should not be able to do abroad what it cannot do at home.

Despite this, the ECHR ruled that the principles of extra-territorial application developed under article 1 did not trump the plain reading of article 56 which placed the power in the state’s hand to elect to exclude a particular territory from the scope of the ECHR.

Relying on the case of Quark Fishing Ltd v UK (15305/06) concerning decisions to issue fishing licenses in the UK’s South Georgian territory, the ECHR distinguished a situation where a state occupies a territory and exercises effective control in exceptional circumstances such as during the Iraqi war, and a territory such as the BIOT and South Georgia over which the state is responsible for international relations on a more permanent basis, but which is administered on a day to day basis by a largely autonomous local authority (an article 56 territory). In the latter case, decisions about that territory are generally taken locally or taken in respect of that location only and thus fall within the class of territories contemplated in article 56.

The fact that UK politicians or officials may have ultimate decision-making power in BIOT and other territories did not, in the ECHR’s opinion, cause a territory to come within the state’s jurisdiction absent a formal notification under article 56.

Other admissibility grounds

The Court rejected the applicants’ arguments that because only some inhabitants had received compensation they were not barred from bringing a further claim since, based on domestic judgments, all inhabitants had had the opportunity to receive compensation by participating in the settlement scheme or bringing a claim in domestic courts within the limitation period. Consequently, the applicants had failed to exhaust the domestic remedies available to them.

Having decided the matter on the above grounds, the ECHR did not deal with arguments raised by interveners Human Rights Watch and Minority Rights Group International that the inhabitants had collective proprietary and cultural rights as an indigenous group in line with the definition of indigenous groups in international law. The ECHR deferred to domestic judgments rejecting these claims.

As an aside, the ECHR also rejected arguments that the fact many former inhabitants now reside in the UK brings the claim within the court’s jurisdiction, and arguments that they had not received access to a fair trial in domestic courts.

Commentary

The court acknowledged the potential injustice the historic anomaly in article 56 can cause for persons residing in non-notified territories and the irony that governments could unwillingly be exposed to liability during temporary occupation of an area such as in Iraq yet elect to limit their exposure in colonised territories where the same breaches of human rights standards may occur.

However, the ECHR left the key question to be determined for another day – could a territory that has not been brought within the scope of the convention under the plain reading of article 56, nevertheless come within a state’s jurisdiction under article 1 because the state exercises effective control in that territory? There are currently two additional cases before the ECHR concerning the UK’s occupation in Iraq. It is unlikely, however, the ECHR will be required to address this question head on in these cases.

The Court made particular reference to the Al-Skeini judgment emphasising that the extra-territorial application of the ECHR only arises where a state exercises effective control over an area in “exceptional circumstances”, suggesting that if a state exercises control over a non-notified territory on a permanent, ongoing and therefore “unexceptional” basis, the ECHR is unlikely to find jurisdiction exists.

The extra-territorial application of the European Convention on Human Rights to territories of contracting states and the scope of the concept of “effective control” thus remains uncertain. However, based on the Court’s comments about the exceptional nature of extra-territorial application of the Convention, it could be inferred that it will take a case of significant human rights abuse for the Court to revisit the approach it has taken so far to the relationship between articles 1 and 56.

This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115714

Madeleine Forster is a secondee at the Human Rights Law Centre.