By Vassilis Tzevelekos and Antal Berkes (University of Liverpool)
Introduction
On 21 September2021, the Third Section of the European Court of Human Rights (ECtHR, Court)rendered its judgment in the case of Carter v. Russia. Thecase is named after the applicant, who is the widow of A.V. Litvinenko - aformer KGB agent who was granted asylum by the United Kingdom (UK). In 2006,Litvinenko was admitted to hospital in the UK, where he subsequently passedaway. His death was caused by acute radiation syndrome resulting from theingestion of polonium 210. The ECtHR accepted that the available evidenceestablished beyond reasonable doubt that Litvinenko had been poisoned by two defacto agents/organs (under Article 8 of the Articleson the Responsibility of States for Internationally Wrongful Acts) ofRussia, who acted under the direction of the Russian intelligence services. According to the Court, by “putting the poison […, the Russianagents] knew that, once ingested, the poison would kill Mr Litvinenko.Thelatter was unable to do anything to escape the situation. In that sense, he wasunder physical control of [the Russian agents] who wielded power over his life”(para. 160). The Court found Russia to be in breach of both thesubstantive and the procedural limbs of Article 2 of the European Convention onHuman Rights (ECHR), which protects human life.
Carter, which -we must note- is not yet final, is a courageous judgment. Thesociolegal challenges of what is a fairly complex and a highly politicised caseare quite obvious. Yet, most importantly, what makes Carter a courageousjudgment is that the Court appears to depart from one of its key case lawtenets regarding the extraterritoriality of negative human rights obligations. Priorto discussing Carter’s significance and contribution tothe evolution of extraterritoriality, we first highlight certain noteworthylegal issues raised by the judgment and we explain this note’s focus; we thenprovide a framework of analysis regarding extraterritoriality and effectivecontrol.
A Plethora ofNoteworthy Legal Issues and the Note’s Focus
Carter raises various interesting questions spanning from standards ofevidence -where our view is that the Court did a commendable job in keeping itscase law with respect to the burden of proof aligned with that of the Inter-AmericanCourt of Human Rights in cases like Velásquez-Rodríguez v. Honduras (para. 135)and Afro-descendant Communities displaced fromthe Cacarica River Basin (Operation Genesis) v. Colombia (para. 270)-,to the concurrentexercise of jurisdiction by Russia and the UK over the same situation/setof facts resulting in the death of Litvinenko. Other interesting aspects are theattribution of conduct to a state of persons acting under its direction, and thejurisdictional basis of Russia’s positive duty to investigate the circumstancesleading to loss of life outside of its territory, where the Court appears to bemissing active and/or passive nationality as autonomous jurisdictionallinks/bases in international human rights law, relying instead, yet again (e.g.,Güzelyurtlu and Others v.Cyprus and Turkey, paras.188‑189and 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 respondentto comply with a positive international human rights law duty.
Interesting assuch questions may be, the focus of this note is on a different legal issue. WithCarter, the ECtHR moves in the direction of the correlation ofextraterritoriality with causality/attribution with respect to the breach of negativehuman rights rules. Essentially, what the Court holds in Carter is thatcausality, that is to say, the attribution to a state of conduct thatconstitutes a breach of its negative human rights’ obligations (i.e., directattribution of a human rights wrong), can lead to state responsibility for thebreach of negative extraterritorial human rights obligations irrespective, in asense, of the exercise of effective control over territory or a person by thestate causing the wrong. This is neither trivial, nor an easy task. It isabsolutely understandable that the Court chooses to be quite careful inmaintaining a fine balance between continuity in its case law, reflected in itsefforts to reiterate (a variation of) the notorious ‘effective control’ overterritory or a person criterion as a precondition for negative ECHR obligationsto apply extraterritorially, and in the erosion of said criterion by means ofthe association in essence of attribution/causality with extraterritoriality, suchthat, 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 unpackthis point, we must first go back to the origins of the effective controlcriterion.
Extraterritorialityand Effective Control: The Earlier Approach of the Court
Effectivecontrol as a precondition for the ECHR parties’ duty to abstain from violatingtheir 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 extraterritorialitycriterion has no explicit legal basis in human rights law and/or in the text ofthe ECHR; that is to say, effective control is a standard/criterion constructedor devised by the ECtHR in Banković. In that case, the Court relied onthis very criterion/doctrine to refrain from exercising jurisdiction in apolitically sensitive and a legally complex case involving questions ofattribution of conduct to states and/or an international organisation as apreliminary question conditioning the establishment of responsibility for lifelosses caused by NATO air strikes against Serbia.
What enabled theECtHR to raise its infamous effective control criterion in Banković andpresent it as an enduring and already established standard was Loizidou(preliminary objections,paras. 62-64, in particular, and merits, paras. 52-57, inparticular). Loizidou and Banković are to an extent comparable asthey 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 wasabsent from Banković, namely the question of the attribution of theconduct of the local administration in the northern part of Cyprus to therespondent state, Turkey. The latter was found by the ECtHR to exerciseeffective control over the said subordinate non-state entity. Effective controlin this context is a criterion for attribution; and attribution was also relevantin Loizidou because it was aprecondition for the ECtHR to exercise its own jurisdiction against therespondent. In simpler words, effective control was primarily employed in Loizidoufor the purposes of attribution -and the International Law Commission’s ruleson state responsibility confirm that the Court was absolutely right to do so (ARSIWACommentaries, p. 48). Therefore, attributionin Loizidou was, very correctly (albeit through reasoning that,admittedly, could have benefited from more clarity), treated as a preconditionfor establishing Turkey’s liability for human rights breaches that it committedoutside of its territory, through a non-state entity that was effectivelycontrolled by it and whose conduct was, therefore, attributable to it. Perse, effective control in Loizidou was only indirectly andincidentally relevant to the question of whether ECHR states have extraterritorialhuman rights obligations. Had the circumstances of the case not raised an issueof attribution to the respondent state of the conduct of the subordinate localadministration in the northern part of Cyprus, effective control would not havebeen involved in Loizidou.
Indeed, until Banković,extraterritorial human rights obligations were only natural, in the sensethat, with respect to negative human rights obligations in particular, no stateshall be allowed to directly cause human rights violations both within andoutside 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)appropriatingthe Loizidou effective control criterion and, rather arbitrarily,transforming said criterion, from a criterion used under certain circumstancesfor the purposes of attribution, into an autonomous criterion conditioningextraterritoriality. That is, by completely detaching the effective controlcriterion from attribution, the Court shifted to effective control (overterritory or persons) as an autonomous criterion conditioningextraterritoriality. The Court thereby, rather arbitrarily, but also forarguably legitimate reasons aiming, at that time, to safeguard the regionalcharacter of the ECHR and to delimit the Convention’s so-called espacejuridique, created an artificial criterion for extraterritoriality. Thisnew extraterritoriality criterion, namely effective control, enabled the Courtto declare inadmissible the application in Banković, and to thereby abstainfrom examining the question of the attribution of the alleged wrongs to therespondent ECHR parties and the merits of the case.
Banković is a telling example of why effective control shall not have aplace in extraterritoriality -unless this standard is employed for the purposesof attribution, as in Loizidou. When effective control is employed in amanner that discounts attribution and autonomously conditions the ECHR’sapplicability extraterritorially, conduct such as air strikes, remote killings,or cyber-attacks against persons overseas caused by/directly attributable tothe ECHR states parties fall outside of the Convention’s applicability. This leadsto impunity, essentially giving states a green light, as long as they do notexercise effective control, to cause deaths overseas. Banković and, moregenerally, effective control as a precondition for states to have to respecthuman rights outside of their territory has been criticised so abundantly andstrongly in scholarship (including our scholarship -1,2, 3, 4, and 5) thatwe simply cannot add anything meaningful or novel here in this respect. Holdingthat a state can kill people outside of its territory as long as it does notexercise (a certain type or degree of) effective control is not just morallyreprehensible (inter alia because it promotes a culture of doublestandards), but also legally groundless.
This may offeran explanation as to why, since Banković, the ECtHR has sought tomitigate its effective control criterion. Three mitigation avenues are worthhighlighting in this brief note. First, it seems that effective control is notindispensable for positive human rights obligations to extendextraterritorially (e.g., Rantsevv.CyprusandRussia,para. 289; RomeoCastañov.Belgium,paras. 37-43; Zoletic and Others v. Azerbaijan,para. 191). Obviously, the thorny question of what justifies or activatesextraterritorial positive obligations and the standards of diligence and pro-activenessin human rights protection that a state must demonstrate exceed the confines ofthis note. Secondly, the ECtHR case law gives weight to the proceduraldimension of protection, emphasising the duty on states to investigate, forinstance, incidents leading to the loss of life outside of their territorywhich they are involved in or with which they are connected (e.g., Georgia v. Russia (II), paras. 331-332; Hananv. Germany, paras. 137-145). One might feel temptedhere to note how oxymoronic and deficient it is from a human rights’ teleology perspectiveto essentially allow states to kill people outside their territory, and thenhold them accountable because they failed in their procedural duty to dulyinvestigate these killings. The third type of ‘easing’ concerns negative humanrights obligations; thus, this type of mitigation of the effective controlcriterion 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 exceptionsfrom (full) effective control as a precondition for extraterritoriality in thefield of negative human rights obligations (e.g., Issaand Others v.Turkey, paras. 70-71, overall, instead of effective, control exercisedtemporarily; Pad and Others v. Turkey,paras. 53-54, concerning shots fired from a Turkish military helicopter killingpeople in Iran; Andreouv. Turkey, where the Court applied ‘cause-and-effect’ forextraterritorial shooting resulting in life loss, Al-Skeini and Others v.the United Kingdom, para. 149, presumed exercise of authority andcontrol because the UK exercised some of the public powers normally to beexercised by a sovereign government in Iraq; Jaloud v. The Netherlands, para. 152, exercise of authority andcontrol over persons through shots fired at a car). On the other hand, thusfar, effective control remains valid as a criterion, whereas the ECtHR has,time and time again, emphasised that causality (i.e., in this context, thedirect attribution of the breach of a negative human rights obligation) doesnot 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, theCourt -unlike what other international human rights law authorities nowadays do(e.g., Human Rights Committee, Generalcomment No. 36, para. 63, power or effective control over the enjoyment ofthe right to life; African Commission on Human and Peoples’Rights, GeneralComment No. 3, para. 14; Inter-American Court ofHuman Rights, The Environment and Human RightsAdvisory Opinion, para. 101, causality oftransboundary environmental harm establishing extraterritorial jurisdiction, whichhas been discussed by one of us here)-has in the past rejected a ‘cause-and-effect’ approach, essentially holdingthat the rule is that, irrespective of attribution/causality, statejurisdiction (i.e., obligations) to respect human rights extraterritoriallydoes not exist unless effective control in its various forms and turns isexercised.
Carter’s Contributionto Negative Extraterritorial Human Rights Obligations
To return to Carter,this judgment contributes to negative extraterritorial human rights obligationsin that it further mitigates effective control. It does so, however, by addinga 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 Courtto amount to “exercise of physical power and control over his life in a situationof proximate targeting” (para. 161). One may wonder what role proximity might beplaying in this context or whether the Court is establishing anotherpresumption, namely that, in situations of proximate targeting or of ‘isolated and specific acts involvingan element of proximity’ (para. 129) controlapplies. Be that as it may, this is not the major contribution of Carterto the regulation of negative extraterritorial human rights obligations. As wehave already argued, other judgments in the past have mitigated or complementedthe variations of the effective control criterion. Seen from this perspective, Carteris just a welcome addition that requires further development and clarity as tothe exact meaning of ‘proximate targeting’.
Yet, the trulynovel part of Carter and its major contribution to negativeextraterritorial human rights obligations stems from the fact that, readingbetween the lines of the judgment, what seems to have prompted the Court tofurther narrow down effective control (and essentially bypass it in this caseby playing the ‘proximate targeting’ ‘card’) is causality. First, by holdingthat jurisdiction is established because of the “exercise of physical power andcontrol over [Litvinenko’s] life” (para. 129), the Court is actually shiftingto control/power over the right to life, instead of control over territory or aperson. Second, in Carter, the Court discussesattribution extensively and establishes causality. Even if Russia’s de facto agents who killed Litvinenkodid not truly exercise effective control over him, they controlled his life andcaused his death. It is understandable that the Court, in a very legitimateeffort to defend and give the impression of continuity in its case law reiterateseffective control (paras. 125 - 126) and strives to give a flare of a certain typeof control exercised by the respondent as the dominant criterion underpinning extraterritoriality.It is, therefore, in a sense unsurprising that the Court holds in Carterthat causing Litvinenko’s death is the result of the exercise by the Russianagents “of physical power and control over [Litvinenko’s] life in a mannersufficient to establish a jurisdictional link” (para. 170). Control thus remainsin place as a criterion. Yet, one must not lose sight of the fact that thecrucial point here is not control over a person, but over his life, thus, causalityin the framework of negative obligations. The Russian agents’ conduct isdirectly attributable to (i.e., caused by) Russia. The Court in Carter maybe playing with words to disguise causality as control exercised by (the)Russia(n agents) over the direct victim’s life in a situation of proximatetargeting (paras. 150, 158, and 161, whatever these terms may mean), but whattruly matters for holding Russia responsible for a human rights wrong outside ofits territory is that this wrong is imputable to/directly caused by it.
Is Cartersignalling a concealed (as a Court of the calibre of the ECtHR ought to do tosafeguard its reputation and legitimacy) departure from its former casuistic effectivecontrol case law and a turn towards ‘cause-and-effect’ through control/powerover the enjoyment of the right to life? Our reading is that, yes, this is whatthe Court is covertly and dexterously doing. Carter is pointing in thedirection of ‘cause-and-effect’. Yet, as is always the case, when it comes tothe interpretation of the intention of judges or to what one should discern whenreading between the lines of a judgment, we may be construing things here thatwe very much wish to read; in different words, we must admit that wemight be taking here our desires as facts and confusing the Court’s lex latawith our lex ferenda. We very much hope that this is not the case,and that future (Grand Chamber) ECtHR case law will continue deconstructingeffective control as a precondition for extraterritorial negative human rightsobligations, whilst also moving to the direction of ‘cause-and-effect’ as ameans to safeguard “the effectiveness of the Convention both as a guardian ofhuman rights and as a guarantor of peace, stability and the rule of law inEurope” (Carter, para. 128). Even if this was eventually to be done onlywith respect to some of the most important human rights, such as the right tolife or the prohibition of torture, and not with regard to all ECHR rights,this would be a very positive advancement. Carter is a very positivedevelopment; a most welcome addition to the long tail of ECtHR case law onextraterritoriality.
Indeed, we haveevery reason to celebrate because, with Carter, a state that directlycaused extrajudicial death overseas has been found liable by the humanrights Court of Europe in a case where this state essentially did not exerciseany manifest effective control over the territory at issue or the direct victim.Carter may be nominally maintaining some type of control as aprecondition for extraterritorial negative human rights obligations, but it is drasticallycontributing into turning the Banković effective control criterion intoan empty shell of a legal ghost from the past. Causality may now be seen as anemerging supporting protagonist in case of extraterritorial negative humanrights violations, turning (effective) control into a false protagonist. Alleluia!
