As the topic of repatriation from Syria continues to be debated by States within and beyond Europe, this article highlights the approach of the European Court of Human Rights’ Grand Chamber in H.F. and Others v France.
On 14 September 2022, the European Court of Human Rights’ Grand Chamber handed down a highly anticipated judgment, in the case of H.F. and Others v France. The applicants brought the case on behalf of their – French national – children and grandchildren, who were held in the al-Hol refugee camp in Syria and wished to return to France. The applicants’ daughters, ‘L’ and ‘M’ had travelled to Islamic State of Iraq and Levant (ISIL) controlled territory in 2014 and 2015 respectively to be with their partners. Both subsequently had children and ended up in al-Hol camp, following the death or imprisonment of their partners. The applicants went on to initiate repatriation proceedings on behalf of their families. However, these applications were subsequently dismissed. Consequently, the applicants alleged – before the ECtHR – that France’s ‘refusal…to repatriate their daughters and grandchildren’ constituted a breach of:
– Article 3 of the European Convention on Human Rights (ECHR) (prohibition of inhuman and degrading treatment)
– Article 3(2) of ECHR Protocol 4 (right to enter one’s own State), together with ECHR Articles 8 (right to private and family life) and Article 13 (right to an effective remedy)
Ultimately, the Grand Chamber held that France’s jurisdiction under ECHR Article 1 was not engaged, for the purposes of Article 3. By contrast, on Article 3(2) of Protocol 4, French jurisdiction was triggered. Although the Court emphasised that this provision did not contain a ‘general right to repatriation’, it nonetheless held that there may be other obligations within the scope of Article 3(4), to ensure its protection was ‘practical and effective’. Thus, in some cases, Article 3(2) of the Protocol may impose a positive obligation may be on the State, ‘where…a refusal by that State to take any action would leave the national concerned in a situation comparable, de facto, to that of exile’. Nevertheless, where this positive obligation is held to exist, it will be interpreted narrowly; the ‘requisite review’ is ‘confined to ensuring effective protection against arbitrariness’. Ultimately, the Court concluded that, in this case, France did have an obligation to ensure its ‘decision-making process’ in the repatriation requests had ‘appropriate safeguards against arbitrariness’. However, it also held that such safeguards had not been provided, since, among other things, in this case, it was impossible to make a formal appeal to an independent body.
While the Court’s analysis of the scope and content of Protocol 4 Article 3(2) is not insignificant, this article will focus on the Grand Chamber’s approach to extraterritorial jurisdiction, highlighting the protection implications of a restrictive application to the Convention’s (extra)territorial application.
Article 1 Jurisdiction – The Grand Chamber’s Decision
In many – perhaps the majority – of cases before the Court, questions related to jurisdiction are easily answered, since the complaint relates to an act or omission that takes place within a contracting State’s territory. In such cases, the focus is solely on the substance of the case. Yet, where the action or inaction under scrutiny occurs beyond a State’s territory, the situation is more complex. As the Grand Chamber reiterated in this judgment, jurisdiction under Article 1 of the ECHR is ‘primarily territorial’. Extra-territorial jurisdiction, even in the case of a State’s own nationals, is the exception, not the rule.
Given the significance of the case, and the complex questions surrounding jurisdiction, it is unsurprising that third party interventions were filed by a number of interested parties, including a joint submission from the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and the UN Special Rapporteur on arbitrary, summary and extra-judicial executions and a submission the United Nations Special Rapporteur on Trafficking in Persons, especially women and children (UNSRT), respectively. In her submission, the UNSRT referred to the approach of the United Nations Committee on the Rights of the Child (UNCtteeRC) to jurisdiction, and its holding in a similar case, that French jurisdiction was established in light of the ‘capability and power’ it had to provide rights protection.
The approach taken by the Grand Chamber, however, did not mirror that of the UNCtteeRC. With reference to its previous case law, the Court assessed whether and to what extent France’s jurisdiction was engaged in light of the facts of the case, under three categories:
(a) whether France had ‘control over an area’;
(b) the impact of the domestic proceedings initiated by the applicants; and
(c) other factors that may be ‘capable of establishing France’s jurisdiction’.
The Court dismissed the first possible basis, holding that although there was some involvement of French military in the area, it was neither exercising effective control of the territory, nor did it have ‘any “authority” or “control” over the applicants’ family members’ in the camps’. Similarly, jurisdiction was not held to be established by means of the opening of domestic proceedings. The criminal proceedings, the Court said, did not relate to the complaints at hand. Further, the initiation of repatriation proceedings by the applicants would not ‘suffice in itself to trigger France’s jurisdiction’, since, according to the Court, ‘the bringing of proceedings at domestic level has no direct impact on the question whether the applicants’ substantive complaints fall within France’s jurisdiction’.
On the third possible basis for jurisdiction, the outcome was – at least, partially – different. The Grand Chamber went on to assess whether jurisdiction may be triggered by ‘any special features, stemming from the bond of nationality’, or from ‘diplomatic jurisdiction’. In this analysis, a distinction is made between ECHR Article 3 and Article 3(2) of Protocol 4. On Article 3 of the ECHR, the Court stated that the French nationality of those in al-Hol camp was not sufficient to establish jurisdiction for the purposes of Article 3. This, it was argued, ‘would be tantamount to requiring the State to comply with Article 3’ even where it does not have effective control in the area where the alleged harm is occurring. Significantly, the Court goes on to note that France’s ‘operational capacity to repatriate’ is insufficient to create ‘an extraterritorial jurisdictional link’. As such, the ‘power and capability’ approach, akin to that adopted by the UNCtteeRC, appears to be rejected by the ECtHR.
On Article 3(2) of Protocol 4, the outcome differs. Stressing that nationality alone cannot trigger extraterritorial jurisdiction, it went on to rely on the principle of effectiveness, recalling that ECHR rights must be ‘practical and effective, not theoretical or illusory’. In this regard, the Court held that there is an inherently extraterritorial element to Article 3(2), since if only those within a State’s territory could rely upon the right to enter one’s State of nationality, it would be ‘rendered ineffective’. On the question of whether jurisdiction would be triggered only at a State’s borders, or further, the Grand Chamber emphasised that a case-by-case approach must be taken. In H.F. and Others, factors taken into account included the nationality of those involved, the requests for assistance that had been made, and the fact that the applicants’ family members were unable to leave the camps and present themselves at the French border. In view of the foregoing, the Court concluded that there were ‘special features’ that triggered France’s jurisdiction for the purposes of Article 3(2) of Protocol 4, and as such, it went on to assess the scope of that provision and the extent to which France had complied with it.
Jurisdiction: A gateway – or barrier – to protection
The jurisdictional holding – at least in respect of Article 3(2) of Protocol 4 – is certainly welcome. Indeed, as noted above, ultimately, the Court held that France had acted in violation of its Article 3(2) obligation – something that would not have been possible without extraterritorial jurisdiction. As such this jurisdictional ruling widens, rather than narrows, the gateway in terms of the potential of the ECHR to enhance protection for vulnerable persons who find themselves in dangerous and exploitative situations abroad.
Yet, the limited extent of such a widening is all too apparent here too. The gateway remains shut insofar as ECHR Article 3 is concerned. In this case, the contrasting jurisdictional findings illustrate all the more that extraterritorial jurisdiction is viewed as both right-specific, and context-specific. There is no ‘one size fits all’ formula. This is not the first time only some obligations have been held to apply extraterritorially. In Al-Skeini and Others v The United Kingdom, the Court explicitly held that, where jurisdiction is linked to ‘authority and control’ over persons and not territory, only those rights ‘relevant to the situation of that individual’ must be protected. In this way, the Convention rights could be ‘divided and tailored’. Yet, in H.F. and Others, we see a somewhat different ‘dividing and tailoring’. Here, it is jurisdiction itself which appears to be ‘divided and tailored’.
Had the Court adopted the ‘capability and power’ approach akin to that taken by the UNCtteeRC, and emphasised in the UNSRT’s intervention, it is difficult to see how jurisdiction would not have been triggered for Article 3 of ECHR as well as Article 3(2) of Protocol 4. The outcome, and ambit of protection may well have been very different. Indeed, the hardship faced by the applicants’ family members was well-documented. Yet, the restrictive approach to jurisdiction adopted in this case, ultimately narrowed the gateway to protection in this regard. It also results in a diverging jurisprudential approach across international human rights bodies, which may be problematic for the coherence of international law in this regard.
Although this decision may be met with disappointment, it is perhaps unsurprising, in light of M.N. and Others v Belgium, where jurisdiction was not established where an individual presented at a contracting State’s embassy, or initiated domestic proceedings. To conclude otherwise, the Court held, ‘would amount to enshrining a near‑universal application of the Convention on the basis of the unilateral choices of any individual, irrespective of where in the world they find themselves, and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment contrary to the Convention outside their jurisdiction.’ Indeed, Reyhani argued that the decision in M.N. and Others, ‘laid bare the naivety of believing in the universality of human rights’. The limits of the ECHR’s extraterritorial applicability appear to be clearly and restrictively fixed, and the Court, in H.F. and Others, although it took a small, but significant step forward in relation to Article 3(2) of Protocol 4, further solidified this restrictive approach.
The ECtHR is keen to emphasise – even in this judgment – that the Convention is a ‘living instrument’, and that the rights within it must be ‘practical and effective’, and not ‘theoretical or illusory’. Yet, the obstacles to such effective protection remain as fixed as ever, and in a world of increasing global movement and cross-border harm, this remains problematic. As migration – and forced migration – is ever more common, it may be high time for a more expansive approach to international human rights law jurisdiction. Such an approach sits at the heart of the tension between sovereignty and protection, and thus, widening the gateway will not be a straightforward task.
Gillian is a Postdoctoral Researcher based at the Irish Centre for Human Rights, School of Law, University of Galway. She is currently working on an Irish Research Council COALESCE project exploring human trafficking, forced migration and gender equality in Uganda. Gillian is a Research Affiliate at the Refugee Law Initiative, where she is a tutor on the MA programme, and convenes the working group on ‘The Role of Courts in Shaping Access to Asylum’. She is also co-chair of the Human Trafficking Research Network (based at QUB Human Rights Centre), and a trustee at Chab Dai UK.