Tuesday, 9 November 2021

Guest Post: Turning Water into Wine - The Concealed Metamorphosis of the Effective Control Extraterritoriality Criterion in Carter v. Russia

By Vassilis Tzevelekos and Antal Berkes (University of Liverpool)
On 21 September 2021, the Third Section of the European Court of Human Rights (ECtHR, Court) rendered its judgment in the case of Carter v. Russia. The case is named after the applicant, who is the widow of A.V. Litvinenko - a former KGB agent who was granted asylum by the United Kingdom (UK). In 2006, Litvinenko was admitted to hospital in the UK, where he subsequently passed away. His death was caused by acute radiation syndrome resulting from the ingestion of polonium 210. The ECtHR accepted that the available evidence established beyond reasonable doubt that Litvinenko had been poisoned by two de facto agents/organs (under Article 8 of the Articles on the Responsibility of States for Internationally Wrongful Acts) of Russia, who acted under the direction of the Russian intelligence services. According to the Court, by “putting the poison […, the Russian agents] knew that, once ingested, the poison would kill Mr Litvinenko. The latter was unable to do anything to escape the situation. In that sense, he was under physical control of [the Russian agents] who wielded power over his life” (para. 160). The Court found Russia to be in breach of both the substantive and the procedural limbs of Article 2 of the European Convention on Human Rights (ECHR), which protects human life.


Carter, which -we must note- is not yet final, is a courageous judgment. The sociolegal challenges of what is a fairly complex and a highly politicised case are quite obvious. Yet, most importantly, what makes Carter a courageous judgment is that the Court appears to depart from one of its key case law tenets regarding the extraterritoriality of negative human rights obligations. Prior to discussing Carter’s significance and contribution to the evolution of extraterritoriality, we first highlight certain noteworthy legal issues raised by the judgment and we explain this note’s focus; we then provide a framework of analysis regarding extraterritoriality and effective control.


A Plethora of Noteworthy Legal Issues and the Note’s Focus


Carter raises various interesting questions spanning from standards of evidence -where our view is that the Court did a commendable job in keeping its case law with respect to the burden of proof aligned with that of the Inter-American Court of Human Rights in cases like Velásquez-Rodríguez v. Honduras (para. 135) and Afro-descendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia (para. 270)-, to the concurrent exercise of jurisdiction by Russia and the UK over the same situation/set of facts resulting in the death of Litvinenko. Other interesting aspects are the attribution of conduct to a state of persons acting under its direction, and the jurisdictional basis of Russia’s positive duty to investigate the circumstances leading to loss of life outside of its territory, where the Court appears to be missing active and/or passive nationality as autonomous jurisdictional links/bases in international human rights law, relying instead, yet again (e.g., Güzelyurtlu and Others v. Cyprus and Turkey, paras. 188‑189 and Hanan v. Germany, paras. 139-142), on the Russian authorities’ application of domestic law and investigation into the Litvinenko case (paras. 131-133) -which, after all, in our view is nothing more than a means for the respondent to comply with a positive international human rights law duty.


Interesting as such questions may be, the focus of this note is on a different legal issue. With Carter, the ECtHR moves in the direction of the correlation of extraterritoriality with causality/attribution with respect to the breach of negative human rights rules. Essentially, what the Court holds in Carter is that causality, that is to say, the attribution to a state of conduct that constitutes a breach of its negative human rights’ obligations (i.e., direct attribution of a human rights wrong), can lead to state responsibility for the breach of negative extraterritorial human rights obligations irrespective, in a sense, of the exercise of effective control over territory or a person by the state causing the wrong. This is neither trivial, nor an easy task. It is absolutely understandable that the Court chooses to be quite careful in maintaining a fine balance between continuity in its case law, reflected in its efforts to reiterate (a variation of) the notorious ‘effective control’ over territory or a person criterion as a precondition for negative ECHR obligations to apply extraterritorially, and in the erosion of said criterion by means of the association in essence of attribution/causality with extraterritoriality, such that, to an extent, this new approach is reminiscent of or even coinciding with ‘cause-and-effect’ or control/power over the enjoyment of a right. But, to unpack this point, we must first go back to the origins of the effective control criterion.


Extraterritoriality and Effective Control: The Earlier Approach of the Court


Effective control as a precondition for the ECHR parties’ duty to abstain from violating their negative human rights obligations outside of their territory emerged in Banković. ‘Emerged’ here is a rather refined term to say that ‘effective control’ as an extraterritoriality criterion has no explicit legal basis in human rights law and/or in the text of the ECHR; that is to say, effective control is a standard/criterion constructed or devised by the ECtHR in Banković. In that case, the Court relied on this very criterion/doctrine to refrain from exercising jurisdiction in a politically sensitive and a legally complex case involving questions of attribution of conduct to states and/or an international organisation as a preliminary question conditioning the establishment of responsibility for life losses caused by NATO air strikes against Serbia.


What enabled the ECtHR to raise its infamous effective control criterion in Banković and present it as an enduring and already established standard was Loizidou (preliminary objections, paras. 62-64, in particular, and merits, paras. 52-57, in particular). Loizidou and Banković are to an extent comparable as they both concern negative human rights obligations extraterritorially. However, as one of us has argued, where these two cases differ is that Loizidou raised a question that was absent from Banković, namely the question of the attribution of the conduct of the local administration in the northern part of Cyprus to the respondent state, Turkey. The latter was found by the ECtHR to exercise effective control over the said subordinate non-state entity. Effective control in this context is a criterion for attribution; and attribution was also relevant in Loizidou because it was a precondition for the ECtHR to exercise its own jurisdiction against the respondent. In simpler words, effective control was primarily employed in Loizidou for the purposes of attribution -and the International Law Commission’s rules on state responsibility confirm that the Court was absolutely right to do so (ARSIWA Commentaries, p. 48). Therefore, attribution in Loizidou was, very correctly (albeit through reasoning that, admittedly, could have benefited from more clarity), treated as a precondition for establishing Turkey’s liability for human rights breaches that it committed outside of its territory, through a non-state entity that was effectively controlled by it and whose conduct was, therefore, attributable to it. Per se, effective control in Loizidou was only indirectly and incidentally relevant to the question of whether ECHR states have extraterritorial human rights obligations. Had the circumstances of the case not raised an issue of attribution to the respondent state of the conduct of the subordinate local administration in the northern part of Cyprus, effective control would not have been involved in Loizidou.


Indeed, until Banković, extraterritorial human rights obligations were only natural, in the sense that, with respect to negative human rights obligations in particular, no state shall be allowed to directly cause human rights violations both within and outside of its territory. This reflects the so-called ‘cause-and-effect’ approach to negative extraterritorial human rights obligations. However, with Banković, the Court rejected ‘cause-and-effect’. This was made possible by (mis)appropriating the Loizidou effective control criterion and, rather arbitrarily, transforming said criterion, from a criterion used under certain circumstances for the purposes of attribution, into an autonomous criterion conditioning extraterritoriality. That is, by completely detaching the effective control criterion from attribution, the Court shifted to effective control (over territory or persons) as an autonomous criterion conditioning extraterritoriality. The Court thereby, rather arbitrarily, but also for arguably legitimate reasons aiming, at that time, to safeguard the regional character of the ECHR and to delimit the Convention’s so-called espace juridique, created an artificial criterion for extraterritoriality. This new extraterritoriality criterion, namely effective control, enabled the Court to declare inadmissible the application in Banković, and to thereby abstain from examining the question of the attribution of the alleged wrongs to the respondent ECHR parties and the merits of the case.


Banković is a telling example of why effective control shall not have a place in extraterritoriality -unless this standard is employed for the purposes of attribution, as in Loizidou. When effective control is employed in a manner that discounts attribution and autonomously conditions the ECHR’s applicability extraterritorially, conduct such as air strikes, remote killings, or cyber-attacks against persons overseas caused by/directly attributable to the ECHR states parties fall outside of the Convention’s applicability. This leads to impunity, essentially giving states a green light, as long as they do not exercise effective control, to cause deaths overseas. Banković and, more generally, effective control as a precondition for states to have to respect human rights outside of their territory has been criticised so abundantly and strongly in scholarship (including our scholarship -1, 2, 3, 4, and 5) that we simply cannot add anything meaningful or novel here in this respect. Holding that a state can kill people outside of its territory as long as it does not exercise (a certain type or degree of) effective control is not just morally reprehensible (inter alia because it promotes a culture of double standards), but also legally groundless.


This may offer an explanation as to why, since Banković, the ECtHR has sought to mitigate its effective control criterion. Three mitigation avenues are worth highlighting in this brief note. First, it seems that effective control is not indispensable for positive human rights obligations to extend extraterritorially (e.g., Rantsev v. Cyprus and Russia, para. 289; Romeo Castaño v. Belgium, paras. 37-43; Zoletic and Others v. Azerbaijan, para. 191). Obviously, the thorny question of what justifies or activates extraterritorial positive obligations and the standards of diligence and pro-activeness in human rights protection that a state must demonstrate exceed the confines of this note. Secondly, the ECtHR case law gives weight to the procedural dimension of protection, emphasising the duty on states to investigate, for instance, incidents leading to the loss of life outside of their territory which they are involved in or with which they are connected (e.g., Georgia v. Russia (II), paras. 331-332; Hanan v. Germany, paras. 137-145). One might feel tempted here to note how oxymoronic and deficient it is from a human rights’ teleology perspective to essentially allow states to kill people outside their territory, and then hold them accountable because they failed in their procedural duty to duly investigate these killings. The third type of ‘easing’ concerns negative human rights obligations; thus, this type of mitigation of the effective control criterion is central to the question that we are exploring in this note. After Banković, the ECtHR has gradually lowered the threshold of or even created exceptions from (full) effective control as a precondition for extraterritoriality in the field of negative human rights obligations (e.g., Issa and Others v. Turkey, paras. 70-71, overall, instead of effective, control exercised temporarily; Pad and Others v. Turkey, paras. 53-54, concerning shots fired from a Turkish military helicopter killing people in Iran; Andreou v. Turkey, where the Court applied ‘cause-and-effect’ for extraterritorial shooting resulting in life loss, Al-Skeini and Others v. the United Kingdom, para. 149, presumed exercise of authority and control because the UK exercised some of the public powers normally to be exercised by a sovereign government in Iraq; Jaloud v. The Netherlands, para. 152, exercise of authority and control over persons through shots fired at a car). On the other hand, thus far, effective control remains valid as a criterion, whereas the ECtHR has, time and time again, emphasised that causality (i.e., in this context, the direct attribution of the breach of a negative human rights obligation) does not automatically engage state responsibility (Banković, para. 75; Medvedyev and Others v. France, para 64; M.N. and Others v. Belgium, para. 112). In different terms, the Court -unlike what other international human rights law authorities nowadays do (e.g., Human Rights Committee, General comment No. 36, para. 63, power or effective control over the enjoyment of the right to life; African Commission on Human and Peoples’ Rights, General Comment No. 3, para. 14; Inter-American Court of Human Rights, The Environment and Human Rights Advisory Opinion, para. 101, causality of transboundary environmental harm establishing extraterritorial jurisdiction, which has been discussed by one of us here)- has in the past rejected a ‘cause-and-effect’ approach, essentially holding that the rule is that, irrespective of attribution/causality, state jurisdiction (i.e., obligations) to respect human rights extraterritorially does not exist unless effective control in its various forms and turns is exercised.


Carter’s Contribution to Negative Extraterritorial Human Rights Obligations


To return to Carter, this judgment contributes to negative extraterritorial human rights obligations in that it further mitigates effective control. It does so, however, by adding a rather imprecise or wanting sort of assortment of or accessory to control. The administration of poison to Litvinenko by the de facto agents of the Russian Federation was found by the Court to amount to “exercise of physical power and control over his life in a situation of proximate targeting” (para. 161). One may wonder what role proximity might be playing in this context or whether the Court is establishing another presumption, namely that, in situations of proximate targeting or of isolated and specific acts involving an element of proximity (para. 129) control applies. Be that as it may, this is not the major contribution of Carter to the regulation of negative extraterritorial human rights obligations. As we have already argued, other judgments in the past have mitigated or complemented the variations of the effective control criterion. Seen from this perspective, Carter is just a welcome addition that requires further development and clarity as to the exact meaning of ‘proximate targeting’.


Yet, the truly novel part of Carter and its major contribution to negative extraterritorial human rights obligations stems from the fact that, reading between the lines of the judgment, what seems to have prompted the Court to further narrow down effective control (and essentially bypass it in this case by playing the ‘proximate targeting’ ‘card’) is causality. First, by holding that jurisdiction is established because of the “exercise of physical power and control over [Litvinenko’s] life” (para. 129), the Court is actually shifting to control/power over the right to life, instead of control over territory or a person. Second, in Carter, the Court discusses attribution extensively and establishes causality. Even if Russia’s de facto agents who killed Litvinenko did not truly exercise effective control over him, they controlled his life and caused his death. It is understandable that the Court, in a very legitimate effort to defend and give the impression of continuity in its case law reiterates effective control (paras. 125 - 126) and strives to give a flare of a certain type of control exercised by the respondent as the dominant criterion underpinning extraterritoriality. It is, therefore, in a sense unsurprising that the Court holds in Carter that causing Litvinenko’s death is the result of the exercise by the Russian agents “of physical power and control over [Litvinenko’s] life in a manner sufficient to establish a jurisdictional link” (para. 170). Control thus remains in place as a criterion. Yet, one must not lose sight of the fact that the crucial point here is not control over a person, but over his life, thus, causality in the framework of negative obligations. The Russian agents’ conduct is directly attributable to (i.e., caused by) Russia. The Court in Carter may be playing with words to disguise causality as control exercised by (the) Russia(n agents) over the direct victim’s life in a situation of proximate targeting (paras. 150, 158, and 161, whatever these terms may mean), but what truly matters for holding Russia responsible for a human rights wrong outside of its territory is that this wrong is imputable to/directly caused by it.


Is Carter signalling a concealed (as a Court of the calibre of the ECtHR ought to do to safeguard its reputation and legitimacy) departure from its former casuistic effective control case law and a turn towards ‘cause-and-effect’ through control/power over the enjoyment of the right to life? Our reading is that, yes, this is what the Court is covertly and dexterously doing. Carter is pointing in the direction of ‘cause-and-effect’. Yet, as is always the case, when it comes to the interpretation of the intention of judges or to what one should discern when reading between the lines of a judgment, we may be construing things here that we very much wish to read; in different words, we must admit that we might be taking here our desires as facts and confusing the Court’s lex lata with our lex ferenda. We very much hope that this is not the case, and that future (Grand Chamber) ECtHR case law will continue deconstructing effective control as a precondition for extraterritorial negative human rights obligations, whilst also moving to the direction of ‘cause-and-effect’ as a means to safeguard “the effectiveness of the Convention both as a guardian of human rights and as a guarantor of peace, stability and the rule of law in Europe” (Carter, para. 128). Even if this was eventually to be done only with respect to some of the most important human rights, such as the right to life or the prohibition of torture, and not with regard to all ECHR rights, this would be a very positive advancement. Carter is a very positive development; a most welcome addition to the long tail of ECtHR case law on extraterritoriality.


Indeed, we have every reason to celebrate because, with Carter, a state that directly caused extrajudicial death overseas has been found liable by the human rights Court of Europe in a case where this state essentially did not exercise any manifest effective control over the territory at issue or the direct victim. Carter may be nominally maintaining some type of control as a precondition for extraterritorial negative human rights obligations, but it is drastically contributing into turning the Banković effective control criterion into an empty shell of a legal ghost from the past. Causality may now be seen as an emerging supporting protagonist in case of extraterritorial negative human rights violations, turning (effective) control into a false protagonist. Alleluia!