European Court of Human Rights

European Court of Human Rights

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It follows from the Vienna Treaty Convention that the transfer of powers to the Community has no consequences for the scope of the Member States’ obligations under international asylum law. Do the bodies that monitor state performance under the instruments of international asylum law hold the same view? Neither the Human Rights Committee nor the Committee Against Torture has ever addressed the question, as far as I know. The European Court of Human Rights on the other hand has done on several occasions, and quite recently issued a very principled judgement on the matter: the Grand Chamber Judgement Bosphorus v Ireland.36 Before addressing this judgement I will first discuss the European Court’s previous rulings on the matter.

The scope of Member State responsibility under the European Convention of Human Rights is determined by Article 1: Member States must “secure” the rights laid down in the European Convention to persons “within their jurisdiction”. In a number of cases, the Strasbourg organs had to decide on complaints about acts by Member States that were conditioned by Community law, where the involved Member States stated that they could not be held responsible for acts of Community institutions. In the terms of Article 1 ECHR, those states argued that these acts fell outside scope of their “jurisdiction”; in the terms of the Vienna Convention on the Law of Treaties, they argued that the posterior Treaty on European Community had altered the scope of their obligations under the European Convention.

The Court addressed the matter at length in Matthews v UK. The act that Mathews complained of was the refusal to register her as a voter in the elections for the European Parliament (and this refusal was allegedly in breach of Article 3 of the First Protocol attached to the European Convention on Human Rights). The decision by the UK authorities to refuse the registration was based on an agreement (the “1976 Act”) that in its turn was based on a Council decision and that left the United Kingdom no discretion. The United Kingdom stated that the impugned act was conditioned by Community law completely, “and could not be revoked or varied unilaterally by the United Kingdom”; therefore, control by the United Kingdom authorities’ was not “effective”, and for that reason did not amount to “jurisdiction” as meant in Article 1 ECHR.

The Court did not follow this reasoning. Having observed that the United Kingdom exerts territorial jurisdiction in the sense of Article 1 ECHR over Gibraltar, the Court still had to :

“consider whether, notwithstanding the nature of the elections to the European Parliament as an organ of the EC, the United Kingdom can be held responsible under Article 1 of the Convention for the absence of elections to the European Parliament in Gibraltar, that is, whether the United Kingdom is required to “secure” elections to the European Parliament notwithstanding the Community character of those elections. […] The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be “secured”. Member States’ responsibility therefore continues even after such a transfer. […] Legislation emanating from the legislative process of the European Community affects the population of Gibraltar in the same way as legislation which enters the domestic legal order exclusively via the House of Assembly. To this extent, there is no difference between European and domestic legislation, and no reason why the United Kingdom should not be required to “secure” the rights in Article 3 of Protocol No. 1 in respect of European legislation, in the same way as those rights are required to be “secured” in respect of purely domestic legislation. In particular, the suggestion that the United Kingdom may not have effective control over the state of affairs complained of cannot affect the position, as the United Kingdom’s responsibility derives from its having entered into treaty commitments subsequent to the applicability of Article 3 of Protocol No. 1 to Gibraltar, namely the Maastricht Treaty taken together with its obligations under the Council Decision and the 1976 Act.”

Hence, the Contracting states cannot change the scope of their obligations under Article 1 ECHR by “subsequent” agreements. If a subsequent agreement entails that the state looses in fact control over an act, its control remains nevertheless “effective” for the purposes of Article 1 ECHR. As a consequence, as far as responsibility under the European Convention is concerned, there is no difference between Community legislation and domestic legislation.

The Court adopted the same approach in a number of subsequent rulings. Of particular interest for asylum law is the Court’s decision on admissibility T.I. v UK. It concerned the decision by the United Kingdom to remove an asylum seeker to Germany. T.I. stated that this removal was in breach of Article 3 ECHR, as it was likely that Germany would expel him to Sri Lanka where he would suffer inhuman or degrading treatment or torture. The United Kingdom held that it could rely on the Dublin Convention, according to which Germany would examine the case; it was therefore certain that the prohibition of refoulement ex Article 3 ECHR would be observed. The European Court of Human Rights rejected this argument:

“where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution (see e.g. Waite and Kennedy v. Germany judgment of 18 February 1999, Reports 1999, § 67)”.

The last sentence is a word for word quote from the judgement Waite and Kennedy. This quote is somewhat ambiguous, for in Waite and Kennedy, the “attribution” concerned attribution of competencies and immunity to an international organisation (the European Space Agency), whereas in T.I. v UK the “attribution” concerns the transfer of responsibility for the examination of the asylum claim to another state. However this may be, the decision fits in well with the approach adopted in Matthews. It would seem to follow that by attributing the competence to legislate on asylum to the Community, the Member States are not absolved from their responsibility under the European Convention of Human Rights.

In the judgement Bosphorus v Ireland, however, the Court ruled that transfer of powers does after all influence the extent of Member State responsibility under the Convention. The circumstances of the case were as follows. In 1992, the Turkish firm Bosphorus had leased an aircraft from Yugoslav Airlines. Shortly thereafter, in view of the escalating war in Yugoslavia, the United Nations Security Council adopted a resolution calling for sanctions against the Former Republic of Yugoslavia, inter alia impoundment of aircraft. The European Community implemented this sanction and adopted a Regulation that obliged the Member States to impound all aircraft owned or controlled by undertakings from the Former Republic of Yugoslavia (such as Yugoslav Airlines). When Irish authorities complying with the Regulation impounded Bosphorus’ aircraft, the firm complained that its right to “peaceful enjoyment of its possessions” (here: enjoying the benefits from its lease) as protected by Article 1 ECHR Prot 1 had been violated.

As to the scope of Ireland’s obligations under Article 1 ECHR, the Court stated
“[…] that a State’s jurisdictional competence is considered primarily territorial […], a jurisdiction presumed to be exercised throughout the State’s territory […].”

As the act complained of was executed by “the authorities of the respondent State on its territory”, the firm fell within Irish jurisdiction for the purposes of Article 1 ECHR – just as was decided in Matthews. But in marked distinction from Matthews, the Court did not proceed in Bosphorus to address the other element of the provision, the obligation to “secure” Convention rights. It rather observed that considerations concerning “the scope of the responsibility of the respondent state go to the merits of the complaint under Article 1 of Protocol No. 1”.

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