This week’s article is the highest scoring submission in the York LLB “Legal Concepts” module for the academic year 2017/18.

We would like to thank the module leader, Mr. Jed Meers and Miss Asena Eren Arioglu for granting us the permission to publish this essay.




In the Article 1 of the European Convention on Human Rights (ECHR), the “jurisdiction” of a Contracting State sets the limits of the reach of the rights and protections under Section 1 of ECHR.[1]Smith concluded the UK’s jurisdiction extends to its soldiers based beyond its territory, for the purposes of Article 1.[2]In his lead judgment, Lord Hope claimed the conception of jurisdiction in Smith (CJS) corresponds to the one in General International Law (GIL).[3]I argue that this statement is false. First, the judgment in Smith will be summarised. Second, jurisdiction in GIL will be explained. Third, how CJS might parallel GIL conception will be shown. Fourth, it will be demonstrated that the CJS cannot correspond to GIL conception, as there is no reference to a “legitimate interest”. Fifth, the reason behind this difference in conceptions in GIL and Smith will be shown to result from the different legal contexts of the ECHR and GIL.


In Smith, the Supreme Court delivered judgment on claims, advanced by the relatives of five soldiers either killed or injured in Iraq in 2005.[4] Due to space constraint, only the claims concerning jurisdiction will be considered. These claims dealt with the failure of the Ministry of Defence (MD) to discharge its positive obligations under Article 2 of ECHR, by providing adequate equipment which would have prevented their death.[5] MD wanted to strike out these claims, arguing soldiers were not within the UK’s jurisdiction, as they were based in Iraq.[6] Smith concluded, unanimously, soldiers were within the UK’s jurisdiction.[7]


In GIL’s sense, jurisdiction is understood as the entitlement of a state to prescribe and enforce its domestic law over a territory or individuals.[8]States in GIL have an equal right to regulate the affairs impacting the delivery of their public services, stemming from their sovereignty.[9]The purpose of GIL is to balance this right of sovereign states against each other.[10]As a result, in GIL, jurisdiction is regarded to be primarily territorial, protecting sovereign states from foreign interference.[11] There can be situations where a state can have a legitimate interest in extending its domestic law extra-territorially.[12] GIL recognises three principles indicating such a legitimate interest.[13]The first is the personality principle, recognising a state’s legitimate interest in extending its domestic law to its nationals involved in an offence, either as the offender or the victim.[14]For example, the UK might want to try its own citizens, regardless of their location, to be able to offer them the rights and protections of which they would be deprived under other legal regimes.[15]Second is the protection principle, providing the state with an entitlement to extend the reach of its domestic law to those who pose an imminent threat to its independence.[16]Third, is the universality principle, recognising a legitimate interest of a state in extending its domestic laws to those who have committed acts disruptive of the international order. This can be illustrated – for example –by Eichmann being tried under an Israeli court, for the crimes he had committed against all of the human race.[17]Thus, jurisdiction in GIL is defined as an entitlement, which arises from a legitimate interest, justifying the state’s right to extend its domestic law over an entity.


Smith can be interpreted to have applied this conception of jurisdiction in the following manner. ECHR rights and obligations were incorporated in the UK’s domestic law through the Human Rights Act 1998 (HRA).[18] Section 6(1) of this Act gives responsibility to MD, as a public body, to uphold the ECHR rights within the UK’s jurisdiction.[19] As the soldiers were based beyond the UK’s territory, a legitimate interest needs to be shown to extend the UK’s laws. This interest seems evident given that the soldiers in question are UK nationals. Thus, Lord Hope states British armed forces are entitled to the same rights as any other citizen.[20] Therefore, CJS could be considered to have applied the GIL conception, through extending the domestic law to soldiers based in Iraq, through a legitimate interest in the protection of its own nationals’ ECHR rights. 


Nonetheless, in Smith, jurisdiction is defined as the effective control and authority exercised through state agents, over individuals and/or territory.[21]Having effective control and authority over individuals and territory is a factual question, to be determined by looking at the physical power a state exerts over an entity.[22] Only having physical power over an entity cannot, by itself, justify extending a state’s domestic laws over it.[23]For jurisdiction to derive from the power a state exerts over an entity, the state should have a legitimate interest in exerting this power. This is because if jurisdiction is reduced to only having physical power over an entity, weak states’ right as a sovereign might get breached easily by strong states which, without justification, can exert power over them to impose their domestic laws. This seems against the purpose of GIL, defined as balancing the right of sovereign states against each other.[24]Thus, CJS does not correspond to the GIL conception of jurisdiction, as it seems to be based on the power exerted by a state over an entity.


It could be claimed that the legitimate interest of the UK in Smith came from having control and authority over its soldiers.[25] Having control and authority over one’s armed forces is crucial for the survival of a state, providing a legitimate interest to have control and authority, and thus jurisdiction. The Armed Forces Act 2006 is an example of such lawful extra-territorial extension of domestic law to British soldiers.[26]Thus, the conception of jurisdiction as control and authority, deriving from the UK’s legitimate interest to control its soldiers can be deemed to correspond to the conception of jurisdiction in GIL.


Nonetheless, the reasoning in Smith inferred the jurisdiction of the UK over its soldiers, from its jurisdiction over Iraqi civilians. This reasoning was drawn from Al-Skeini, which held that the Iraqi civilians – killed by British armed forces in Iraq – were within the UK’s jurisdiction, as the UK had control and authority over them.[27] Following this judgment, Lord Hope inferred logically that, for the UK to have control over Iraqi civilians in Iraq, it had to have control and authority over its soldiers, indicating the extension of the UK’s jurisdiction over them.[28] This deduction seems to indicate, CJS did not differentiate between UK’s connection to its soldiers and to Iraqi citizens, given its control and authority over them. Therefore, the argument, resting on the UK’s specific connection to its soldiers, giving rise to a legitimate interest to have control and authority, cannot be sustained, showing CJS could not be paralleling the GIL conception.


The difference between the CJS and GIL conception results from the differing legal contexts of GIL and ECHR. In GIL, as explained above, jurisdiction serves to limit the extension of a state’s domestic law, to ensure other sovereign states’ rights will be respected. In Smith, the issue in question is whether the responsibility – not entitlement – of a state to uphold the ECHR rights extends to its soldiers.[29] Human rights have a universal nature, accorded to all persons due to their humanity. It is contrary to this idea to limit the protection of ECHR rights to instances of a state having a legitimate interest in their protection.[30] However, it also seems unreasonable to demand every Contracting State to do everything possible to secure the ECHR rights of every person.[31] So, “jurisdiction” works as the threshold with respect to which state can reasonably be held responsible.[32] Having control and authority over a territory or person puts the state in a position in which it can effectively protect – or violate – the rights of people.[33] Thus, jurisdiction as control and authority over persons or territory, fits in well with the universal nature of ECHR, when imposing responsibility. Therefore, the GIL sense of jurisdiction as entitlement, is different from CJS, because CJS derives from a human rights context, whereas jurisdiction in GIL derives from the rights of sovereign states. 



In conclusion, the statement that CJS parallels the GIL conception of jurisdiction is false. This is because the GIL conception is described as a state’s entitlement to impose its domestic law, due to a legitimate interest that a state might hold in doing so. The wording of Smith does not correspond to such interpretation, as it defined jurisdiction as control and authority over a person or territory. This definition rests on a factual question. Thus, on its own, it fails to provide a lawful basis for the extension of domestic law. It could be contended that UK has a legitimate interest in exerting power and authority over the soldiers in question in Smith, giving basis to the UK’s entitlement to extend its domestic law beyond its territory. However, the deduction of jurisdiction of UK’s soldiers derived from its jurisdiction over Iraqi civilians, not from UK’s legitimate interest in having control and authority over its own soldiers. Thus, CJS, cannot correspond to the GIL conception. This difference in conception of jurisdiction results from the differing legal contexts of ECHR and GIL.









BIBLIOGRAPHY:

Acts & Cases:

  • Human Rights Act 1998

  • Smith v Ministry of Defence [2013] UKSC 41, [2014] A.C. 52

  • SS Lotus Case (France v Turkey) PCIJ Ser A (1927) No 10

Books:

  • Anders Henriksen, International Law (OUP 2017)

  • Cedric Ryngaert, Jurisdiction in International Law (OUP 2008)

  • Ruth Costigan and Richard Stone, Civil Liberties & Human Rights (11thedn., OUP 2017)

  • Martin Dixon and others, Cases & Materials on International Law (6thedn., OUP 2016)

  • Marko Milanovic, Extraterritorial Application of Human Rights treaties: Law, Principles and Policy (OUP 2011)

Articles

  • Francesco Messineo “Gentlemen at Home, Hoodlums Elsewhere? The Extra-territorial exercise of power by British forces in Iraq and the European Convention on Human Rights” [2012] The Cambridge Law Journal , vol.71, no.1

  • Richard Mullender “Military Operations, Fairness and the British State” [2014] L.Q.R. 28

  • Richard Percival “How to do things with jurisdictions: Wales and the jurisdiction question” [2017] P.L. 249

Internet Sources:

  • Alexia Solomou “Case Comment: Smith &Ors v Ministry of Defence [2013] UKSC 41” (UKSC blog, 18 June 2013) <http://ukscblog.com/case-comment-smith-ors-v-ministry-of-defence-2013-uksc-41/> accessed 29 April 2018

  • European Court of Human Rights / CourEuropeenne des Droits de L’Homme “Guide on Article 1 of the European Convention on Human Rights: Obligation to respect human rights – concepts of ‘jurisdiction’ and imputability” (31 December 2017) <https://www.echr.coe.int/Documents/Guide_Art_1_ENG.pdf> accessed 30 April 2018

  • Richard Scorer “The judicialization of war?” (New Law Journal, 02 August 2013) <https://www.newlawjournal.co.uk/content/judicialisation-war> accessed 29 April 2018




[1]European Court of Human Rights / CourEuropeenne des Droits de L’Homme “Guide on Article 1 of the European Convention on Human Rights: Obligation to respect human rights – concepts of ‘jurisdiction’ and imputability” (31 December 2017) <https://www.echr.coe.int/Documents/Guide_Art_1_ENG.pdf> accessed 30 April 2018


[2] Alexia Solomou “Case Comment: Smith &Ors v Ministry of Defence [2013] UKSC 41” (UKSC blog, 18 June 2013) <http://ukscblog.com/case-comment-smith-ors-v-ministry-of-defence-2013-uksc-41/> accessed 29 April 2018


[3]Smith v Ministry of Defence[2013] UKSC 41, [2014] A.C. 52[17]


[4]Richard Mullender “Military Operations, Fairness and the British State” [2014] L.Q.R. 28


[5]Alexia Solomou “Case Comment: Smith &Ors v Ministry of Defence [2013] UKSC 41” (UKSC blog, 18 June 2013) <http://ukscblog.com/case-comment-smith-ors-v-ministry-of-defence-2013-uksc-41/> accessed 29 April 2018


[6][2013] UKSC 41, [2014] A.C. 52 [13]


[7]ibid, [55]


[8] Marko Milanovic, Extraterritorial Application of Human Rights treaties: Law, Principles and Policy (OUP 2011), 26


[9]Anders Henriksen, International Law (OUP 2017), 85


[10] Martin Dixon and others, Cases & Materials on International Law (6thedn., OUP 2016), 281


[11] Anders Henriksen, International Law (OUP 2017), 87


[12]SS Lotus Case (France v Turkey) PCIJ Ser A (1927) No 10, 18


[13] Cedric Ryngaert, Jurisdiction in International Law (OUP 2008), 21


[14] Anders Henriksen, International Law (OUP 2017), 89-90


[15] Paul Arnell “The Case for Nationality Based Jurisdiction” [2001] The International and Comparative Law Quarterly, Vol.5, No.4, 959


[16] Cedric Ryngaert, Jurisdiction in International Law (OUP 2008), 96


[17] Anders Henriksen, International Law (OUP 2017), 92


[18]Ruth Costigan and Richard Stone, Civil Liberties & Human Rights (11thedn., OUP 2017)


[19]Human Rights Act 1998, s. 6(1)


[20] [2013] UKSC 41, [2014] A.C. 52 [54]


[21] ibid, [45-47]


[22]European Court of Human Rights / CourEuropeenne des Droits de L’Homme “Guide on Article 1 of the European Convention on Human Rights: Obligation to respect human rights – concepts of ‘jurisdiction’ and imputability” (31 December 2017) <https://www.echr.coe.int/Documents/Guide_Art_1_ENG.pdf> accessed 30 April 2018


[23]Marko Milanovic, Extraterritorial Application of Human Rights treaties: Law, Principles and Policy (OUP 2011), 27


[24]Cedric Ryngaert, Jurisdiction in International Law (OUP 2008), 34


[25] Richard Scorer “The judicialization of war?” (New Law Journal, 02 August 2013) <https://www.newlawjournal.co.uk/content/judicialisation-war> accessed 29 April 2018


[26] Richard Percival “How to do things with jurisdictions: Wales and the jurisdiction question” [2017] P.L. 249, 253


[27] Francesco Messineo “Gentlemen at Home, Hoodlums Elsewhere? The Extra-territorial exercise of power by British forces in Iraq and the European Convention on Human Rights” [2012] The Cambridge Law Journal, vol.71, no.1, 15


[28] [2013] UKSC 41, [2014] A.C. 52 [50]


[29] European Court of Human Rights / CourEuropeenne des Droits de L’Homme “Guide on Article 1 of the European Convention on Human Rights: Obligation to respect human rights – concepts of ‘jurisdiction’ and imputability” (31 December 2017) <https://www.echr.coe.int/Documents/Guide_Art_1_ENG.pdf> accessed 30 April 2018


[30] Richard Scorer “The judicialization of war?” (New Law Journal, 02 August 2013) <https://www.newlawjournal.co.uk/content/judicialisation-war> accessed 29 April 2018


[31] Marko Milanovic, Extraterritorial Application of Human Rights treaties: Law, Principles and Policy (OUP 2011), 56


[32] [2013] UKSC 41, [2014] A.C. 52 [32]


[33] Marko Milanovic, Extraterritorial Application of Human Rights treaties: Law, Principles and Policy (OUP 2011), 56