EBOR LEX

Jurisdiction in Smith: The parallel worlds of general international law and the ECHR

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 201

[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

A Short Guide to Studying Law at York

It can seem daunting when one first starts an undergraduate degree and being exposed to the multifaceted nature of studying at university. Not only are you having to familiarise yourself with the campus and the city of York, you are also attempting to make new friends, enjoy an active social life and adjust to independent living, not to mention learning the academic conventions of university level learning, which differs from the way FE courses are conducted.

 

 

In FE sixth forms or colleges, you would have been accustomed to one style of learning: in a small classroom with one teacher. Degree level learning will present you with a variety of learning styles, which will include lectures, seminars and PBL sessions which will be conducted by a wide range of academic teaching staff. Lectures typically include a large number of students and offers some student participation in the form of questions and answers. As lectures offer entry points into a topic, effective note taking is integral to succeeding on your course. Good note taking is an art form, and clear, relevant notes of orally delivered information will supplement written information on lecture slides. Although lecture sizes are large, don't hesitate to speak to your lecturers personally as they are more than happy to give guidance on assessments and course content.

 

Whereas FE course content is compulsory and regulated by exam boards, degrees are personal and can be tailored to your individual interests. Course content will not be spoon-fed and often lecture attendance will not be monitored, therefore it is your prerogative to be self-motivated and conduct self-directed study by reading from a variety of sources rather than one or two exam board issued textbooks. Therefore, time management is crucial- it is a good idea to plan out your week in advance and allocate space for leisure time. Part of the ethos of University level study is encouraging the development of free-thinkers and critical analysis. Ergo, in order to study effectively on a law degree, further reading of textbooks, case notes, case judgements and statutes are essential to compliment your lecture notes and broaden discussion in seminars and PBL, and ultimately, your understanding in a topic. UG study is not centred on the regurgitation of facts, but rather informed and original responses.

 

Not only will you be assessed via essays and exams, you will also be expected to perform oral presentations such as debating and mooting. The ability to communicate effectively and structure your arguments in a logical and succinct manner is an essential skill for the aspiring lawyer, whether written or verbal. In order to develop your skills for these assessments, it is advisable to join societies such as the debating society and the mooting society and practice giving presentations. It is recommended to read Finch and Fafinsky’s Legal Skills[1] for comprehensive guides on oral and written skills along with legal study skills and note taking techniques. Reading pages and pages of case judgements with dense, complex, and often at times seemingly incomprehensible archaic language will make studying law more of a challenge at times. As legal jargon entails many French and Latinate terms that may be unfamiliar to you initially, it is helpful to keep a glossary of such terms on hand. It will inevitably take some time to adjust to this new way of working due to the inherently challenging nature of law degrees in general- however, your study skills will improve over the duration of the course by structuring you time, coming prepared for lectures and seminars, and most importantly, by keeping on top of your required reading.

 

A significant amount of your learning will happen through the PBL process. This begins as a group task, where you will identify your weekly learning outcomes, and is followed by independent research. The purpose of the independent research is to find answers to the questions identified by the group. Conducting independent research for PBL can feel sisyphean at first, but do not be discouraged. Rather than beginning your research with Google - as many of you undoubtedly will - start by reading the relevant section in the block guide. Follow this with a textbook. If the learning outcome is a normative question, read journal articles. Journal articles can be accessed through Westlaw or LexisNexis. Lexis PSL - accessed through LexisNexis - provides easy to follow practical guidance and is especially useful for questions about procedural requirements. Once you have completed your research, it is advisable to organise the gathered information so that it is easily retrievable. By doing so, you can use the information to revise for exams later in the year.

[2]

 

 

 

 

 

 

 

If you find it difficult to adjust to independent study - many of us do - or feel that there is a specific area in which you would benefit from a little extra guidance, there is lots of help available. The law school is a great place to start. Speak to your peers - it may be something with which they could help you - and speak with the teaching staff. You will regularly see staff around the law school; do not be afraid to ask them questions. If you would prefer to speak with a member of staff privately, the teaching staff have office hours once per week when you can arrange to have a one-to-one chat. Email the member of staff to find out their office hours and request to meet them.

 

The library also provides support to develop your academic skills. Law has its own dedicated Academic Liaison Librarian. They can help you to find, manage and evaluate information resources, and can also talk to you about relevant IT tools including support for managing your references. Furthermore, the library’s Learning Enhancement Team provides help and support with core academic integrity skills. They also offer specialist writing support, including one-to-one appointments. To find out how to access support through the library, visit the library website.

 

Finally, it is normal to feel overwhelmed when one starts university. If you do, do not be disheartened. Persevere and you will adapt, develop, and succeed.

 

[1] Emily Finch and Stefan Fafinski, Legal Skills (6th edn, Oxford University Press 2017)

 

[2] University of York. (2015, March 9). Problem Based Learning - York Law School. Retrieved from https://www.youtube.com/watch?time_continue=79&v=CrZ6O2Pu9No