Out of sight, out of mind?

Table of Contents

I. Introduction

1.) Problem Statement
2.) Methodology and limitations

II. The case of H.F. and Others v France

1.) Background: Situation of children from Foreign Terrorist Fighters held in Kurdish prison camps
2.) Approach to extraterritorialjurisdiction takenby the European Court ofHuman Rights

a.) “Dividing and Tailoring” of Convention rights
b.) “Special features doctrine”
c.) Other rules of extraterritorial jurisdiction

3.) Substantive obligations of member States under Article 3§2 of Protocol No. 4
4.) Concluding Remarks

III. Other approaches to extraterritorial jurisdiction and their suitability for the right to return

1.) Impactmodel
2.) Functional model

a.) Case law of the Committee on the Rights of the Child
b.) Case law of the Human Rights Committee
c.) Academia
d.) Criticism of functional approaches

3.) Special legal relationship and nature of the right
4.) Concluding Remarks

IV. Functional approach to extraterritorial jurisdiction of the right to return under the ECHR

1.) Development of practicable criteria for a functional approach with regard to the right to return of children

a.) Nexus requirement
b.) No effective competing claim forjurisdiction

2.) Transferability of the approach to other rights
3.) Concluding Remarks

V. Conclusion

Bibliography

I. Introduction

Thousands of children of different nationality live in the prison-like camps al-Hol and al-Roj in Northeast Syria which are controlled by the Syrian Democratic Forces (SDF), a non-State armed group.¹ An estimated three dozen of countries have been engaged in the return of their detained nationals since 2019.² The unwillingness of certain States, particularly those bound by the European Convention on Human Rights (ECHR) and/or EU law, to repatriate children may be explained by obligations related to family reunification under Article 8 of the ECHR and under EU Directive 2004/38/EC. These obligations would extend to the children’s parents who States consider a threat to national security.³ This is particularly problematic since the SDF do not allow repatriation of children without their parents.⁴

In domestic legal proceedings the Dutch Supreme Court,⁵ the Court of Appeal of Brussels⁶ and French courts⁷ rejected an obligation of the respective States to repatriate their nationals. So far, the Higher Administrative Court of Berlin-Brandenburg has been the only court of last instance that found a constitutional obligation to repatriate children and their mothers,⁸ albeit on a case- by-case basis.⁹

Ultimately, a case was brought before the European Court of Human Rights (ECtHR) by applicants, acting on behalf of their French daughters and grandchildren. They claimed violations of the prohibition of torture and ill-treatment under Article 3 of the ECHR, of their right to respect for private and family life, home and correspondence under Article 8 of the ECHR and of the right to return under Article 3 § 2 of Protocol No. 4 to the ECHR, each taken alone and in conjunction with the right to an effective remedy under Article 13 of the ECHR.¹⁰ The Court found France’sjurisdiction to be established only regarding the right to return.¹¹ This thesis will focus on the right to return because of the approach the Court has taken to establishjurisdiction, which it had previously used but is still relatively new. Besides, Article 3 § 2 of Protocol of No. 4 is of particular interest given the scarcity of case law on it and its limited material scope.

1.) Problem Statement

The detention of nationals of ECHR member States in the camps raises the question of the extraterritorial application of the ECHR. Despite the attempt to develop certain general rules of extraterritorial applicability,¹² the ECtHR’s approach to extraterritorial jurisdiction is criticized for lacking coherence.¹³ In light of the tendency to decide the question on “a need-to-decide-basis”, Judge Bonello in 2011 summarized the jurisprudence of his own Court as “patchwork case-law at best”.¹⁴ The Judges’ navigation through a sea of individual cases without a consistent strategy may be rooted in the desire to hold States accountable for extraterritorial human rights violations without risking acceptance of and compliance with their judgments.¹⁵ The downside of this case-by-case approach is a lack of predictability.¹⁶ It is far from surprising that many commentators and courts argued against the applicability of the ECHR to the situation of Foreign Terrorist Fighters (FTFs) and their families in Northeast Syria contrary to the Court’s later ruling.¹⁷ By refusing to define the circumstances that may serve to establish a jurisdictional link in abstracto,¹⁸ this decision brings little clarity.

In contrast, the Committee on the Rights of the Child (CRC) held regarding the same issue, albeit controversially, that France and Finland had full jurisdiction under the United Nations Convention on the Rights of the Child (UNCRC).¹⁹ The complainants had based their repatriation on numerous rights set forth in the UNCRC.²⁰ An explicit right to return is not enshrined in the UNCRC.

Against the background of these contrasting decisions, this thesis will address the following main research question:

Which approach to extraterritorial jurisdiction should the European Court of Human Rights have taken with regard to the right to return of children having the nationality of a member State and being detained in Kurdish prison camps in Northeast Syria?

To do so, it will examine as a first sub-question the Court’s approach to extraterritorial jurisdiction in the case of H. F. and Others v France in light of the substantive guarantees of the right to return and contextualise it within the plethora of scenarios the Court dealt with in the past. It will then turn to the question which approaches other international adjudicative bodies and academia suggest and link them to the right to return. Finally, the thesis will identify the favourable approach to jurisdiction over the right under Art. 3 § 2 of Protocol No. 4 and its transferability to other Convention rights.

While there has been a considerable bit of scholarly debate on the case law of the ECtHR as well as on alternative approaches described as “functional”, so far, no international adjudicative body has adopted a functional approach to jurisdiction paired with a comprehensive and entirely convincing reasoning. Therefore, starting from the situation of children of FTFs the thesis will add to the debate by developing a more consistent approach with clear parameters.

2.) Methodology and limitations

This thesis will address the main research question and the affiliated sub-questions primarily by conducting a case study about children of FTFs in the al-Hol and al-Roj camps. It will be based on a doctrinal legal study covering various sources of international law and referring to relevant academic literature.

By following a legal-positivist approach, this thesis will analyze the law as it is rather how the law ought to be.²¹ However, in light of the research question legal positivism must not be understood stricto sensu. By answering the question how the Court should have dealt with the case, the thesis aims to contribute to the progressive development of the law.

Given the volatile security situation in Northeast Syria, further challenged by a Turkish offensive towards the end of 2022,²² the situation on the ground may change rapidly with a potential impact on relevant circumstances.

Due to the limited geographical scope of the ECHR, the legal analysis on extraterritorial jurisdiction is not of relevance to all States of which the FTFs and their children have the nationality. Besides, only 42 of the 46 member States to the ECHR ratified Protocol No. 4.²³

II. The case of H.F. and Others v France

An examination of the Court’s findings on the extraterritorial applicability of the Convention and on the substantive obligations under Article 3§2 ofProtocol No. 4 in H.F. and Others v France serves as a starting point. To identify whether a need for a more consistent approach tojurisdiction exists, the past case law of the Court will be taken into account more broadly.

Limiting its assessment to the alleged breach of Article 3 of the ECHR and Article 3 § 2 of Protocol No. 4,²⁴ the ECtHR in H.F. and Others v France concluded that France as the respondent State did not exercise jurisdiction over the Applicants’ detained family members in Northeast Syria in view of their ill-treatment.²⁵ On the contrary, it found France’s jurisdiction to be established with regard to the alleged violation of their right to enter national territory.²⁶ On the merits, the Court held that, while the detained French nationals did not have a general right to repatriation, France in the particular case violated positive obligations vis-à-vis the Applicants’ daughter and grandchildren by failing to examine the repatriation request “surrounded by appropriate safeguards against arbitrariness”.²⁷

1.) Background: Situation of children from Foreign Terrorist Fighters held in Kurdish prison camps

While still being part of the territory of the Syrian Arab Republic, the Autonomous Administration of Northeast Syria (AANES) is a de facto autonomous region controlled by two non-State armed groups, the SDF and the Kurdish People’s Protection Units (YPG).²⁸ They are supported and trained by the US-led “Global Coalition against Daesh”, in which a significant number of ECHR member States participates.²⁹ After occupying territories previously held by Daesh,³⁰ the SDF detained alleged Daesh fighters and their families in al-Hol camp.³¹ According to the United Nations (UN), around 58,000 individuals, including 17,000 women and 37,000 children, were still detained in both camps in 2022.³² Many of these children have been indoctrinated by Daesh and participated in combat operations.³³ Given the lack of appropriate deradicalization programmes in the camps, they have been described as “ticking time bombs”.³⁴ The conditions in both camps are deplorable due to a lack of regular water supply, insufficient sanitation and nutrition as well as a lack ofhealth care and housing.³⁵ Especially in al-Hol camp, the security situation is critical with high death tolls.³⁶ 35 percent of the deceased in 2021 were children.³⁷ In light of the deplorable living conditions in the camps and their potential indoctrination,³⁸ the question arises whether these children are rather persons at risk or risky persons.

Still, the “Global Coalition against Daesh” provides funding to the AANES and SDF for the management of the camps,³⁹ mainly coming from the USA and the United Kingdom of Northern Ireland and Great Britain (UK).⁴⁰ Many States rely on support of the USA when repatriating their nationals.⁴¹ Apart from agents of States cooperating with the Kurdish forces, aid workers have access to the facilities in the camps.⁴²

Those detained in the camp section for non-Syrian and non-Iraqi nationals are considered FTFs and their families. The UN Security Council (UNSC) defined as FTFs “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict’”.⁴³ The term and its definition have been heavily criticized, notably due to the lack of an agreed international definition of terrorism.⁴⁴ However, for the purpose of this thesis, the definition of the UNSC will be used. While for some women it might be difficult to establish their actual role at Daesh, at least those detainees who fought for Daesh or had a combat-supporting function will be considered FTFs.

2.) Approach to extraterritorialjurisdiction taken by the European Court ofHuman Rights

As a precondition for the applicability of Article 3 § 2 of Protocol No. 4, the Court had to find that France exercised jurisdiction under Article 1 of the ECHR. It is clear from the context of the provision that it refers to State jurisdiction.⁴⁵ The term “within theirjurisdiction” makes the application of the Convention dependent on the fact that “a certain relationship exists between rights-holders and States.”⁴⁶ Jurisdiction in this context describes the responsibility of States towards an individual.⁴⁷

As the travaux préparatoires of the ECHR show, the idea of limiting the applicability of the ECHR to those persons residing in their territory was discarded in order to extend “the benefits of the Convention to all persons in the territories of the signatory States, even those who could not be considered as residing there in the legal sense of the word”.⁴⁸ Besson argues that the purpose of including the term “within their jurisdiction” was “to avoid moving from the nationality restriction to another one, i.e., to that of residence only and hence to territory”.⁴⁹ However, the aforementioned reasoning of the Expert Intergovernmental Committee clearly indicates that the drafters of the Convention did not deviate from the territorial concept of jurisdiction.

Yet, this finding does not exclude the extraterritorial application of the Convention per se. First, it must be noted that the preparatory work of the ECHR is scarce.⁵⁰ Hence, the insights that can be drawn are limited. Second, the preparatory work of a treaty is only a supplementary means of interpretation.⁵¹ Third, the Convention is a “living document” in the sense that its interpretation needs to be adapted to present developments and societal views nowadays.⁵²

a.) “Dividing and Tailoring” of Convention rights

Preliminarily, the question arises whether the issue of extraterritorial jurisdiction can be dealt with differently in respect of various fundamental rights. In other words, it needs to be determined whether “the positive obligation in Article 1 to secure ‘the rights and freedoms defined in Section I of this Convention’ can be divided and tailored in accordance with the particular circumstances of the extraterritorial act in question”.⁵³ While the ECtHR rejected this reading in an “’all-or- nothing’ approach”⁵⁴ in Bankovic,⁵⁵ it subsequently changed its stance. In H.F. and Others v France, the Court summarized its previous case law by stating that [t]he State is under an obligation under Article 1 to secure [...] the rights and freedoms under Section I of the Convention that are relevant to the [particular] situation [...]. In this sense, therefore, the Convention rights can be “divided and tailored” [...].⁵⁶

Besson rejects this and claims that only the specific duties vary owing to the specific circumstances of each case.⁵⁷ While it is correct that the scope of negative and positive obligations of States, i.e. abstention from violations and the taking of protective measures to secure the fundamental right in question,⁵⁸ depends on the circumstances of each case, the scope of a particular right, e.g. States’ obligations to protect an individual’s right to life under Article 2 of the ECHR, is a matter to be dealt with at the merits stage of a case. Whether the respective State is at all in a position to abstain from a violation of the right to life or to take protective measures, however, is a preliminary question related to the applicability of the right in question. Therefore, a State could be at the same time in a position not to violate the right to life of a person, without being in a position to, e.g., guarantee that person’s right to freedom of expression under Article 10 of the ECHR. The scope ofjurisdiction with regard to an obligation under the ECHR depends on the factual situation.⁵⁹ Hence, in the given example the State would only have extraterritorial jurisdiction in respect of the right to life. To conclude with, Convention rights can be “divided and tailored”.

b.) “Special features doctrine”

In order to establish France’s jurisdiction on the children and their families in the camps, the Court examined the existence of special “connecting ties” between them and France.⁶⁰

Turning first to the prohibition of torture and other inhuman or degrading treatment, the Court, reiterating its own jurisprudence,⁶¹ held that nationality on its own is insufficient.⁶² Nor did France’s “operational capacity to repatriate (...) suffice to constitute a special feature capable of triggering an extraterritorial jurisdictional link.”⁶³ By that, the Court, at least implicitly, rejects a functional approach to jurisdiction, meaning an approach that “links jurisdiction to a State’s ability to act and the impact of its (in)action”.⁶⁴

The mere omission to act does not establish jurisdiction per se.⁶⁵ The Court rejects a broad impact model ofjurisdiction, reiterating its stance in M.N. and Others v Belgium that the “mere fact that decisions taken at national level had an impact on the situation of persons resident abroad” does not constitute ajurisdictional basis.⁶⁶ Otherwise, any individual around the world could easily subject itself to the jurisdiction of an ECHR member State, e.g. by applying for protective measures.

In any case, France’s capacity to repatriate its nationals is limited by the need to negotiate the framework for any such operation and subsequently implement it.⁶⁷

Regarding the right to return under Article 3 § 2 of Protocol No. 4, the Court as well rejected the idea that nationality could serve as an autonomous jurisdictional basis despite acknowledging that the detainee’s French nationality as well as their prior residence in France “constitute strong legal and factual connections with the respondent State”.⁶⁸ In light of the notion that the Convention must be interpreted in a way that renders the fundamental rights “practical and effective”,⁶⁹ that the subject matter and scope of the right to enter its own country require its extraterritorial applicability to be effective,⁷⁰ and that the Convention needs to be applied taking into account contemporary developments such as increased cross-border mobility,⁷¹ the ECtHR held that the circumstances of a specific case can constitute a sufficient basis forjurisdiction but refused to define such circumstances in abstracto ⁷²

Evaluating the fate of children and their parents in the Kurdish detention camps, in addition to the legal link arising out of their nationality, the Court based its finding of extraterritorial jurisdiction on four special features:

(1) “[T]he applicants have addressed a number of official requests to the French authorities for repatriation and assistance”;
(2) “[T]hose requests were made on the basis of the fundamental values of the democratic societies which make up the Council ofEurope”, particularly in light of the “extreme vulnerability of the children”;
(3) The inability of the individuals to leave the camps and return to France without assistance by French authorities;
(4) The willingness of the Kurdish authorities “to hand over the female detainees of French nationality and their children to the national authorities”.⁷³

Already before had the ECtHR repeatedly relied on “special features” to establish jurisdiction.⁷⁴ In Guzelyurtlu, the Court refused to define in abstracto which “special features” trigger the existence of a jurisdictional link [...], since these features will necessarily depend on the particular circumstances of each case and may vary considerably from one case to the other.⁷⁵

Before applying the “special features” in H.F. and Others v France, a common characteristic of all cases in which the Court invoked them was that they concerned the procedural obligation to investigate under Article 2 of the ECHR.

c.) Other rules of extraterritorial jurisdiction

In the past, the ECtHR tried to develop some general rules of extraterritorial accountability.⁷⁶ As the Court concluded in Carter v Russia, [t]he two main criteria governing the exercise of extraterritorial jurisdiction are that of “effective control” by the State over an area outside its territory (spatial concept ofjurisdiction) and that of “State agent authority and control” over individuals (personal concept ofjurisdiction) [...].⁷⁷

(1) Effective control over a territory

In H.F. and Others v France, the Court briefly stated that France did not exercise effective control over the Kurdish-controlled area because its contribution to the “Global Coalition against Daesh” and its support of the SDF, mainly in the form of air support, is insufficient.⁷⁸

The “effective control” criterion applies to situations after lawful or unlawful military actions of a State outside its own territory, when control is “exercised directly, through its armed forces, or through a subordinate local administration”.⁷⁹ Military and political support provided to non-State armed groups in combination with participation of military personnel in fighting can amount to sufficient control over a territory in which separatist forces are active and the territorial State does not exercise effective control itself.⁸⁰

Notwithstanding the fact that the threshold establishing “effective control” may be quite low,⁸¹ in comparison to, e.g., the broader involvement of Russian forces in Transdniestria,⁸² the Court’s finding on a case-by-case basis in H.F. and Others v France is convincing. Still, it must be noted that the assessment might differ regarding other States supporting the SDF more extensively, namely the UK.⁸³

(2) State agent authority and control

Owing to the particular circumstances of the case, the Court in H.F. and Others v France did not analyse the case through the lens of the personal concept.⁸⁴

The concept does not necessarily entail the exercise of physical power.⁸⁵ Other situations have been classified as “isolated and specific acts involving an element of proximity”.⁸⁶ However, as the cases in which the Court applied this concept show, such an element does not arise solely out of special legal bonds between a person and a State but rather out of factual circumstances.⁸⁷ An earlier decision of the European Commission of Human Rights seems to suggest that nationality may itself suffice to constitute ajurisdictional basis by saying that “nationals of a State [...] are partly within its jurisdiction wherever they may be”.⁸⁸ However, the Commission fell short of explaining what would be the consequences of such “partial jurisdiction” and, instead, emphasized that the extent to which State agents assert authority decides about jurisdiction abroad.⁸⁹

Consequently, while constituting a decisive factor, nationality does not for itself suffice to form an element of proximity.⁹⁰ However, situations in which agents of State parties to the Convention enter the Kurdish-controlled areas may trigger the extraterritorial applicability of certain rights. This means that in the event that a State of origin does dispatch officials to the camps in northern Syria, (sic!) and takes steps to identify its nationals and then repatriate them, that State will be obliged to comply with its human rights obligations from the moment, and to the extent, that it exercises authority or control over such persons.⁹¹

The exercise of authority and control encompasses omissions as well.⁹²

Hence, insofar as repatriation missions on the ground are targeted to benefit only a few nationals, the potential failure to act towards other persons may constitute an omission violating Convention rights. In this regard, the example of French officials entering al-Roj camp and leaving behind a child that was on a list of persons selected for repatriation,⁹³ suggests that France exercised extraterritorial jurisdiction.

Two UN Special Rapporteurs highlight the “ongoing diplomatic/political engagement by a number of States” with the AANES and SDF.⁹⁴ They rightly conclude that to the extent that “a State is conducting consular activities - or failing to do so - [...] individuals may fall under the jurisdiction of the State”.⁹⁵

3.) Substantive obligations of member States under Article 3§2 of Protocol No. 4

In substantive terms, Article 3 § 2 of Protocol No. 4 differs in language from Article 12 of the International Covenant on Civil and Political Rights (ICCPR). While Article 12(4) of the ICCPR prohibits the arbitrary deprivation of the right to enter one’s own country, Article 3 § 2 of Protocol No. 4 refers to the deprivation of the right to enter the State of nationality without imposing an arbitrariness threshold and thereby allowing for exceptions.⁹⁶ In contrast to the right under the ICCPR,⁹⁷ the right to enter the territory of a member State is, therefore, confined to nationals.⁹⁸ In order to render this right practical and effective, States have certain positive obligations, the extent of which varies on a case-by-case basis.⁹⁹ For nationals outside the territory of their State of nationality, Article 3 § 2 of Protocol No. 4 provides for a right to return.¹⁰⁰ The comparable right in Art. 12(4) of the ICCPR also entails an entitlement to come to one’s “own country” for the first time in life.¹⁰¹

Positive obligations of member States under Art. 3 § 2 of Protocol No. 4 must be proportionate to the burden they impose on States, and the States enjoy a margin of appreciation in choosing the means to fulfil them.¹⁰²

In contrast to the CRC in similar cases,¹⁰³ the ECtHR denies an obligation for States to repatriate their nationals because international law does not provide for a corresponding entitlement of individuals.¹⁰⁴ The Court raises the concern that the recognition of a right to repatriation could serve as a basis for recognizing an individual right to diplomatic protection¹⁰⁵ despite the fact that the exercise of diplomatic protection falls within wide discretionary powers of States.¹⁰⁶ However, it is doubtful that the recognition of an individual right to repatriation under certain circumstances would necessarily encompass a right to diplomatic protection given that in the present case, France already maintained diplomatic relations with the SDF.¹⁰⁷

Positive State action is, in the majority’s view, necessary in cases where the national is threatened to be de facto exiled.¹⁰⁸ To identify whether positive obligations arise, the Court applies a two- prong test.¹⁰⁹ It first identifies exceptional circumstances in the present case.¹¹⁰ The reasons are quite similar to the ones the Court advances for establishing France’s extraterritorial jurisdiction in this case.¹¹¹ By examining whether the decision-making process by the French authorities on the quest for repatriation entailed appropriate safeguards against arbitrariness,¹¹² it reads into Article 3 § 2 of Protocol No. 4 an arbitrariness criterion comparable to the one explicitly laid down in Article 12 of the ICCPR without further reasoning.¹¹³ Considering the deliberate decision of the drafters of the Convention to omit the arbitrariness criterion from the provision,¹¹⁴ the Court’s interpretation leaves behind some doubt.

Judges Pavli and Schembri Orland criticize the Court’s majority in their Joint Concurring Opinion accurately for a “heavy proceduralist approach”.¹¹⁵ With a bit of pathos but putting the finger in the wound, they observe that “great injustice has been perpetrated throughout human history on the basis of seemingly correct procedures”.¹¹⁶ In shaping the scope of the positive obligations, they propose to establish a due diligence standard, falling short of a right to repatriation in every case but going beyond mere procedural safeguards.¹¹⁷

Another reading of the Court’s judgment assumes that the extent of an independent review required by the Court goes into substance and results in an, albeit limited, right to repatriation.¹¹⁸ In conclusion, despite some criticism also from within the Court, the majority’s decision has established guidelines relevant to practice regarding the material scope of the right to return.

4.) Concluding Remarks

Like in H. F. and Others v France, over the past years the ECtHR increasingly relied on “special features” of a case to establish ajurisdictional link. Minervini adequately describes this approach as an ad hoc model designed for the particular case at hand rather than “another brand-new model of extraterritorialjurisdiction”.¹¹⁹ Due to the Court’s reluctance to set out the criteria for special features in abstracto and to weigh them according to the importance it attributes to them, its jurisprudence is far from being of coherent guidance for future cases and the applicability in other contexts.¹²⁰

In terms of substantive obligations, thejustification that there is no basis for a repatriation claim in international law seems weak as it does not address the issue whether the Convention must be interpreted in light of its purpose as to guarantee a right to repatriation. Instead, by falling short of acknowledging such an obligation, the Court does what it wants to avoid by its own account, namely the risk that the rights guaranteed by the Convention will become “theoretical and illusory”.¹²¹

While the Court acknowledged the plight of the Applicants’ relatives and did not entirely release France from responsibility, it is uncertain whether the middle ground it has found between two diametrically opposed opinions will substantially change the fate of the detained French nationals.¹²² The question whether France, after adopting appropriate procedural safeguards against arbitrariness, could defacto exile its nationals and their children remains unanswered.¹²³ Notwithstanding the highlighted shortcomings of the reasoning of the Court, the right to return under Article 3 § 2 of Protocol No. 4 with its limited material scope serves as a good starting point to discuss alternate approaches tojurisdiction and potential limitations.

III. Other approaches to extraterritorial jurisdiction and their suitability for the right to return

Other international adjudicative bodies have dealt with matters of jurisdiction differently. Their jurisprudence is of interest for establishingjurisdiction under the ECHR because the provisions of the Convention should be interpreted with reference to relevant rules of international law.¹²⁴ To the extent possible the ECHR should be “interpreted in harmony with other rules of international law”.¹²⁵ This basic rule is enshrined in Article 31(1)(c) of the 1969 VCLT, which is also applicable to the interpretation of the ECHR.¹²⁶ Whenever the fundamental rights of children are at stake, the relevant issue must be interpreted taking into consideration States’ obligations under the UNCRC.¹²⁷

Besides, proposals from scholarship are of relevance against the background that such contributions are subsidiary means for the determination of rules of international law (Article 38(1)(d) ofthe ICJ Statute).

In recent years, at the international level approaches are emerging that have been widely described as “functional”. They mainly rely on the capacity of States to act, and they entail an element of “impact” insofar as human rights are affected by decisions to take action or not.¹²⁸

Other approaches are more related to activities on a state’s territory that produce extraterritorial effects.¹²⁹ While one may still consider them falling within the broad notion of “functionality”, they differ from purely functional approaches in that they emphasize the impact of action more than a State’s functional capacity. Therefore, they will be given their own category in the pages to come.

Apart from that, it has been argued to establishjurisdiction based on a special legal relationship.

1.) Impact model

In a landmark case the Inter-American Court ofHuman Rights (lACtHR) came to the conclusion that when transboundary damage occurs [...] the persons whose rights have been violated are under the jurisdiction of the State of origin [of the damage] if there is a causal link between the act that originated in its territory and the infringement of the human rights of persons outside its territory.

The Court’s approach is based on the notion that the “State of origin” of the harm exercises effective control over the source of the damage, whereas its impact is felt outside its territory. Vega-Barbosa and Aboagye characterize this approach as an “enhanced personal model of jurisdiction”. However, in contrast to the widely recognized and accepted personal model, as it has been developed especially in the case law of the ECtHR, the State does not enter into contact with the individuals physically through its agents or the extraterritorial exercise of public powers. The terms “control over the harm model” or “impact model” appear more adequate instead. By them, it is possible to draw a clear distinction between extraterritorial jurisdiction andjurisdiction with extraterritorial effects. The latter has its origin on the territory of the State whose jurisdiction is sought to be established, whereas the former normally does not have such a strong territorial nexus.

Besides, the requirement of a causal link between the harmful activity and the actual damage would arguably only trigger State responsibility “for the failure to exercise its due diligence within its territory”.

While Raible is correct in holding that jurisdiction does not refer to the relationship between a State and a source of harm, applying the impact model of the lACtHR does not cut the link between the State controlling the harmful activity and the impacted individuals. Instead, the activity as such is the bridge between the State and the individual.

The importance of the Court’s Advisory Opinion beyond the field of international environmental law must still be critically examined. The impact model could arguably apply to the rescue of migrants in distress when a Riparian State informs entities from a third State despite knowing that their intervention poses a serious risk to the individuals in distress.¹³⁰

Whether the approach is transferable to “various scenarios where a State is factually linked to extraterritorial situations”, including “nationals seeking diplomatic or consular assistance [of their State of nationality] against human rights violations”,¹³¹ is yet doubtful. Different to instances of transboundary (environmental) harm and the described rescue scenarios in international waters, the nexus between territorial conduct and extraterritorial effects in these cases is significantly weaker. Mere omissions to come to the rescue of nationals detained on the territory of a sovereign third State, despite factual access to them, are incapable of creating a comparable extraterritorial impact. Nor is the impact of a decision not to repatriate nationals despite their request severe enough to establish ajurisdictional link.

The CRC in Sacchi et al v Argentina applied the test developed by the lACtHR with respect to the effects of climate change and, implicitly, emphasized the limited applicability of the concept to transboundary harm by requiring that the State of origin “exercises effective control over the sources of the emissions in question”.¹³²

The African Commission ofHuman and People’s Rights (ACmHPR) developed, at least in terms of the right to life under Article 4 of the African Charter on Human and People’s Rights (ACHPR), a very broad approach tojurisdiction. In addition to the spatial and recognized personal concept of jurisdiction, in its General Comment 3 the Commission found jurisdiction over the right to life of an individual to be established when the State exercises control over the victim’s rights or “engages in conduct which would reasonably be foreseen to result in unlawful deprivation of life.”¹³³ While the “control over rights doctrine” reflects a functional approach to jurisdiction, what could be called the “reasonable foreseeability doctrine” appears almost limitless and shows greater similarities with the impact model of the lACtHR. It is unclear whether in the view of the Commission “conduct” must be understood as to cover omissions as well.

2.) Functional model

Judge Bonello in his Concurring Opinion in the Al-Skeini case of the ECtHR proposed a “functional jurisdiction” test by asking whether the violation of human rights lies within the power of the State or not.¹³⁴ Such a test, therefore, relies on the power “to exercise functions that have an impact on human rights of individuals”, which means that “[s]tates must protect human rights in situations where they can do so”.¹³⁵ From a similar angle, Moreno-Laxrefers to the expression of state power in a particular scenario,¹³⁶ through action as well as inaction, whereby functional approaches tojurisdiction cover omissions as well.¹³⁷ Albeit different to the spatial and personal model, this approach comprises elements of authority and control.¹³⁸ Instead of exercising control over territory or persons, the State through its functions controls the rights of individuals.¹³⁹ Consequently, the capacity of a State to protect human rights is crucial to establish extraterritorial jurisdiction based on the functional model. This capacity is closely connected to due diligence obligations of States, which come into play in order to assess whether a State has the actual capacity to act and, thereby, controls the rights of those concerned.¹⁴⁰

a.) Case law of the Committee on the Rights of the Child

Prior to the ECtHR in H.F. and Others v France, the CRC dealt with the exact same factual setting. The Committee based extraterritorial jurisdiction in both cases on the fact that the State party, as the State of the children’s nationality, has the capability and the power to protect the rights of the children in question by taking action to repatriate them or provide other consular responses.¹⁴¹

Similar to the ECtHR, it took into consideration the circumstances of the specific case, notably the contact between the State parties and the Kurdish authorities, the willingness of the Kurds to cooperate and prior repatriations conducted by both Finland and France.

In what Liefaard and Sandelowsky-Bosman consider to be a more “child-sensitive approach” than the one chosen by the ECtHR, the Committee highlights the situation of extreme vulnerability of the children in the camps in its reasoning on jurisdiction. Yet, the authors fail to acknowledge that the ECtHR comparably weighed the vulnerable situation of the children as one “special feature” of the case on which it grounded France’sjurisdiction. Notably, the last criterion mentioned by the CRC is problematic given that it might incite States to not repatriate their nationals as such precedent could otherwise be used to prove their capacity to do so. But even beyond this aspect, the Committee’s reasoning in both cases does not explain the test it applies and, therefore, fails to provide stringent criteria. Given the lack of clear standards, the CRC does not define the scope of its functional model nor its potential limitations. While this might seem appealing from the Committee’s point of view because it enables it to better deal with situations unforeseen when deciding previous cases, it is as problematic as the “special features doctrine” for lack of consistency and predictability. The weight attributed to each specific circumstance of the case at hand remains unclear and controversy emerged around the nationality criterion. Unlike under Art. 3 § 2 of Protocol No. 4, the respective obligations of member States towards children under the CRC do not require them to be their nationals - at least not explicitly. Duffy reads the decision as to naming nationality as one important but not absolute necessary factor for establishingjurisdiction. In contrast, Milanovic understands nationality to be a “’but for’ condition” forjurisdiction in the reasoning of the Committee and criticizes the inherent arbitrariness. While Duffy’s interpretation is certainly linguistically possible, the reading of the whole paragraph suggests that the CRC would have found otherwise if the applicant children were non-nationals. Instead of enumerating nationality among the specific circumstances of the case, the Committee gives the criterion a more prominent place and directly links it to the State’s capability to protect the children’s rights. By that, it emphasizes that the State’s capacity is only relevant because the protection of its nationals is at stake.

With respect to the right to return under Article 3 § 2 of Protocol No. 4, a functional approach as adopted by the CRC would naturally establish extraterritorial jurisdiction only over nationals. While, admittedly, the sparse reasoning in the decisions adopted by the CRC raises further questions as to the scope and limits of the functional model, a critical engagement of the ECtHR with the Committee’s approach would have been preferable over the tacit deviation without any elaboration, especially considering the need for harmonious interpretation.

b.) Case law of the Human Rights Committee

The Human Rights Committee (HRC) acknowledged the extraterritorial applicability of the ICCPR long ago in order to avoid that States escape their human rights obligations.

In General Comment No. 36 it proposes a functional approach to jurisdiction in terms of the right to life, stating that human rights obligations of States extend to “all persons over whose enjoyment of the right to life it exercises power or effective control”.

The Committee relied on this model as well to answer complicating jurisdictional questions arising in two closely connected cases on rescue operations in the Mediterranean Sea. The cases concerned the drowning of a vessel in the Mediterranean Sea outside the territory of Italy and Malta but within the Maltese search and rescue (SAR) area, which resulted in the deaths of presumably more than 200 migrants. Both States were in constant contact with the vessel and activated rescue procedures. Still, it took approximately six hours between the first emergency call to the Italian Maritime Rescue Coordination Centre and the decision of the Maltese Rescue Coordination Centre to order a naval ship nearby the place of accident to intervene despite ongoing communication between the competent authorities.

Like in the detention camp cases, both States were aware of the emergency and had the capacity to come to rescue.

To begin with the more obvious reasoning, in the case against Malta the HRC based the jurisdiction on the location of the vessel in the Maltese SAR area as well as on the formal acceptance to coordinate the rescue operation, by which the State party exercised effective control over the rescue operation, potentially resulting in a direct and reasonably foreseeable causal relationship between the States parties’ acts and omissions and the outcome of the operation.¹⁴²

This approach has been challenged by claiming that the knowledge of the Maltese authorities of the emergency triggered an obligation to initiate rescue measures and bring the people in distress in their jurisdiction.¹⁴³ This argument relies on well-established notions of extraterritorial jurisdiction, namely the territorial principle and the personal model. It further doubts that a decision not to protect human rights can give rise to extraterritorial human rights obligations.¹⁴⁴ In situations where no other State exercises jurisdiction based on the traditionally accepted concepts, such a rationale would make the respective territory a lawless space. With regard to the omission of search and rescue operations, States could de facto avoid jurisdiction by ignoring their obligations under international law. This does not only weaken the international legal system but also disregards the element of proximity inherent in such cases. By knowing about the distress situation and having the capacity to rescue the people, the State controls the enjoyment of their right to life.

Whereas the formal acceptance constitutes a factual element of control, the mere reliance on the legal obligation to rescue within an SAR area is considered problematic given the lack of any actual control.¹⁴⁵ From a functional perspective, however, what matters is less whether the State exercised defacto control but whether it could potentially exercise it.¹⁴⁶ Correctly, this capacity does not (only) depend on the legal obligation to rescue but also on factual premises such as knowledge of the distress.

More strikingly, the HRC also found Italy to have concurrent jurisdiction.¹⁴⁷

Similar to the CRC, the HRC rested its conclusion on the particular circumstances of the case, in which “a special relationship of dependency had been established between the individuals on the vessel in distress and Italy”.¹⁴⁸ The Committee took into account legal and factual aspects, namely that the individuals on the vessel in distress were directly affected by the decisions taken by the Italian authorities in a manner that was reasonably foreseeable in the light of the relevant legal obligations ofItaly.

More than the CRC and the ECtHR, the HRC explicitly bases its arguments on other relevant obligations under international law and, by that, moves towards a “holistic interpretation of human rights treaties”.

By relying on Italy’s capacity to rescue, the HRC endorsed a functional model, which it arguably tried to limit by coming up with coming up with the criterion of a “special relationship of dependency”.

An important criticism is that this approach may deter States from getting into close contact with vessels in distress to prevent a “special relationship of dependency”.[175] This issue equally arises, and is not less problematic, in the detention camp cases when jurisdiction is, inter alia, based on a record of repatriations.

It can be argued that the State receiving the distress call exercises some “exclusive long distance de facto control”, at least when the vessel is located within its SAR zone given its obligations under the SAR Convention. Against this background, the two cases are particularly interesting because the State that received the distress call (Italy) and the State in whose SAR area the vessel was located at that time (Malta) were not identical.

In factual terms, Italy was even “closer” to the migrants because it received the distress call and the vessel was geographically closer, whereas in legal terms Malta had a stronger connection given that the vessel sank in its SAR zone. The concurrent jurisdiction model of the HRC raises the question of demarcation ofjurisdictional zones and the scope of the substantive obligations. Notably, such overlappingjurisdiction may result in shifting responsibility back and forth if the boundaries are not well-defined. Insofar, the two HRC cases are not the end of the line yet.

c.) Academia

Many academics propose functional models of jurisdiction as well, albeit in different forms. Giuffre highlights that the “piecemeal approach” of the ECtHR severely threatens its credibility, which is why she suggests building jurisdiction upon “the notions offunctionaljurisdiction and public powers as well as on the impact the actions and omissions of State authorities have on the enjoyment of rights.”¹⁴⁹ Hence, she explicitly calls for a more mixed capacity-impact approach, as well as for a contextual interpretation of jurisdiction pursuant to Article 31(1)(c) of the 1969 VCLT that takes into account other areas of law and corresponding obligations.¹⁵⁰ Applied to the situation of children detained in the Kurdish detention camps, not only but especially in light of their right to return, this would mean that other rules of international law, notably those under the CRC, would potentially influence the finding onjurisdiction.

The notion of a “concrete public-power relation” finds resonance with Moreno-Lax.¹⁵¹ According to her concept ofjurisdiction, the exercise of public powers through concrete action amounts to “situational control”.¹⁵² By this, the functional model rests as well on the basic idea of control but in a much broader way than the territorial, personal or spatial model. Without distinguishing between extraterritorial conduct and territorial conduct with extraterritorial effects as in the “impact model”, under this proposition “control over (general) policy areas or (individual) tactical operations” suffices.¹⁵³ According to Moreno-Lax, the effectiveness of control does not necessarily correspond to the direct exercise of physical force.¹⁵⁴ It lies in a State’s “capacity to determine a change in the real and/or legal position of those concerned”.¹⁵⁵ De facto as well as dejure elements should be determinative jurisdictional questions, as in the Jaloud case when the ECtHR - albeit rather based on the personal model - considered “the particular factual context and relevant rules ofinternational law”.¹⁵⁶

What Moreno-Lax suggests is in essence a holistic approach that considers situations and their factual and legal background in their entirety.¹⁵⁷ It must be noted, however, that the legal obligations of States in different scenarios can vary significantly as to their precision.¹⁵⁸ For instance, maritime rescue obligations under international law may be more specific than obligations vis-a-vis children detained in the Syrian camps with respect to their repatriation claims.

In a similar vein, Shany and Ben-Naftali argue for a “conduct-oriented approach” that does not distinguish between the actual and potential exercise of state power. In addition to those individuals under a state’s control, jurisdiction extends to those persons “directly affected by their actions”. In this respect, the parallels to the impact model of the IACtHR are unmistakable. However, the mere existence of a causal link shall not suffice. Instead, it shall be required that “the potential impact of the act or omission in question is direct, significant and foreseeable”.

Although the precise threshold for the significance of the impact is still not specified, the criteria would be fulfilled with regard to the children in the detention camps: It is foreseeable that they will suffer significant harm, risking their mental and physical well-being, and be deprived of the ability to return to their country of nationality, resulting in de facto exile, as a direct consequence of the inaction of their States of nationality.

d.) Criticism of functional approaches

Naturally dependent on their exact layout, functional approaches tojurisdiction are rather broad by definition. In general, the broader thejurisdictional basis, the more legal responsibility falls on the State concerned. Therefore, suchjurisdictional concepts might be considered politically illegitimate. As discussed, where they take into consideration state action prior to the establishment ofjurisdiction, they may have a “chilling effect”. Besides, if the actual action of a State becomes the determinative feature, the human rights treaty in question would apply to one State but not the other, although they are de facto placed in the same position. To illustrate this, provided that a record of successful repatriations exists with regard to, for instance, France but not Spain, France would havejurisdiction and Spain would not, even if all other factual and legal circumstances of the cases are identical. In turn, the absence of such a prior record increases the difficulty in evaluating the capacity to act.

As a consequence, and contrary to the underlying rationale, the overall level of human protection would decrease. While arguments of potential political backlash as well as a “chilling effect” are more of a policy nature, they should be taken seriously considering that the effective implementation of human rights treaties depends on their acceptance. Otherwise, the rights would become defacto “theoretical and illusionary”.

From a legal standpoint, it has been contested that the capacity to respect human rights can suffice as ajurisdictional basis. It has been criticized for depending on facts that would normally only be relevant in assessing States’ positive due diligence obligations on a substantive level and only come into play in the context of due diligence oncejurisdiction is established.¹⁵⁹ This critique ignores the fact that the capability of a State to protect rights of individuals is inherent in the exercise of public powers. The territorial, personal, and spatial concept all rest on it as a precondition. At the same time, capacity and matters of due diligence are relevant to determine the material scope of human rights in a given situation.

As a rule jurisdiction should only serve as a minimum threshold for the general applicability of human rights treaties, whereas complex questions of the extent of human rights protection are to be dealt with at the merits stage. Due diligence obligations require States “to display best-effort toward a particular result”.¹⁶⁰ Admittedly, they are much more relevant in terms of substantive obligations.¹⁶¹ However, the concept of due diligence is broad¹⁶² and therefore not, by definition, completely irrelevant for the determination of extraterritorial jurisdiction.¹⁶³ Jurisdiction refers to the applicability of a right. By assessing if a State has the capacity to act at all, a functional model takes into consideration facts proving that a State controls the rights of a person and can potentially exercise physical control. By this, nothing is said about the substantive obligation of a right in question, the extent of which is significantly influenced by due diligence.¹⁶⁴ On the jurisdictional level, the mere capacity to take any kind of action suffices for the applicability of a right, whereas the concrete action depends on considerations of due diligence. Applied to the detention camp cases, while the capacity for States to get access to their nationals in the camps may be sufficient to establish jurisdiction, the same fact may prove insufficient to find that they have an obligation of result to repatriate them.

The potential exercise of control based on capability can, at least in theory, be sufficient to establish the connection between States and individuals known as jurisdiction. The need and interest for human rights protection of certain individuals at risk does not constitute the foundation of any functional model¹⁶⁵ but the State’s capability to do so, often paired with other conditions.

3.) Special legal relationship and nature of the right

In Lichtensztejn v Uruguay, the HRC based its finding that Uruguay, in denying a passport for the applicant, exercised extraterritorial jurisdiction on the very nature of the right to leave any country under Art. 12(2) of the ICCPR.¹⁶⁶ This comes close to the “dividing and tailoring” approach of the ECtHR. Despite claims to the contrary that it is problematic to solve matters of jurisdiction with respect to the nature of the right in question,¹⁶⁷ a certain link between the substantive obligations and the jurisdictional basis cannot be concealed, particularly for those rights linked to the nationality principle.¹⁶⁸ With regard to nationals abroad, it is generally easier to argue forjurisdiction regarding the issuance of a passport than regarding inhumane detention conditions in the prisons of the residential State.

Shany suggests basing extraterritorial jurisdiction on a “special relationship [...] that renders [...] [a certain State] particularly well situated to protect that said individual”.¹⁶⁹ This special relationship would be of a legal nature, which puts the State in a prominent position to protect the respective individuals paired with “strong expectations that it would do so”.¹⁷⁰ Based on this theory, given the strong legal bond it creates between States and individuals, nationality would constitute such a special legal relationship. Combined with the material scope of the right to return, this would suffice to establish jurisdiction. Insofar, the outcome would be similar to the one of the so-called passport cases of the HRC.¹⁷¹

In contrast, the mere initiation of administrative proceedings, for instance by applying for a visa,¹⁷² would not prove sufficient to establish a special legal relationship given its frequency and the low threshold this would pose for the applicability of human rights treaties.

4.) Concluding Remarks

The case law and work of other human rights bodies suggest a broader approach to jurisdiction than the one the ECtHR adopted, although, for instance, the language of Article 2(1) of the ICCPR is more restrictive than the one of Article 1 of the ECHR.¹⁷³ Albeit with different nuances, most other courts and organs as well as leading scholars suggest somehow functional approaches. The application of the pure impact model is more confined to cases where a territorial activity or omission to intervene in third-party conduct produces extraterritorial effects. Given the weaker territorial nexus, this model seems unsuitable for the detention camp cases. Moreover, since many decisions and actions of States have a somehow transboundary effect, the danger of the impact model lies in its limitlessness. Besides, it does not adequately address howto deal with omissions, a central aspect with regard to jurisdiction over the right to return of children detained in the camps.

While Moreno-Lax’s holistic approach has the advantage that it avoids missing crucial aspects and producing arbitrary results by zooming in on certain isolated events without contextualizing them, it still remains unclear how much weight is to be attributed to the de facto and de jure elements of the situation. By resting on the notion of control but without specifying when the threshold of control is met, the entire concept needs to be sharpened.

The sole reliance on the nationality of an individual or a similar special legal relationship has the defect that it does not take into consideration relevant factual circumstances of the case.

Instead, the widely debated case law of the HRC on the cases concerning the drowning of migrant vessels in the Mediterranean Sea offer the most solid basis for a debate on the potentials and limits of a functional model ofjurisdiction, also with regard to the detained children. Given their more sophisticated reasoning, they are also relevant for a similar case concerning shipwreck of migrants in the Mediterranean Sea which is currently pending at the ECtHR and calls for a more coherent approach tojurisdiction.¹⁷⁴

However, the notion of a “special relationship of dependency” does not substantively differ from the “special features doctrine” of the ECtHR.¹⁷⁵ Nor does it provide sufficiently stringent guidance for comparable future cases.

The combination of the capacity of a State to act and the impact of its actions or omissions suggested by Ben-Naftali and Shany shows parallels to the approach of the HRC and offers a solid basis for outlining a clear-cut concept as well.

IV. Functional approach to extraterritorial jurisdiction of the right to return under the ECHR

The difficulty in establishing a sophisticated approach to jurisdiction that is guided by clear-cut criteria applicable to each individual case lies in the underlying tension between the idea of the universal validity of human rights and the notion of nation-states.¹⁷⁶ This inherent conflict calls for the adoption of a functional approach to jurisdiction with nevertheless clear limitations. A functional approach offers great adaptability to react to contemporary developments with there still being a need for legal certainty and foreseeability that calls for abstract standards flexible enough to allow for adequate consideration of each individual case.¹⁷⁷ While the beauty of a functional approach lies in its non-arbitrariness, the acceptance of limiting factors such as the nationality requirement bears the risk ofbeing arbitrary.¹⁷⁸

Yet, limiting the jurisdictional link is necessary to ensure that the burden put on States stays reasonable.¹⁷⁹

Some authors claim that the ECtHR opted for a functional approach to jurisdiction in Carter v Russia.¹⁸⁰ However, in this case the Court itself refers to the personal concept ofjurisdiction and the “element of proximity” which it applies in terms of Russia’s substantive obligations under the right to life.¹⁸¹ With regard to procedural obligations, the Court reiterates the concept of special features.¹⁸² But even assuming that the Court chose a functional approach, the specific reasoning in Carter does not serve the coherence of the case law.

1.) Development of practicable criteria for a functional approach with regard to the right to return of children

Instead of relying on the inaccurate “special features doctrine” in H.F. and Others v France, considering the need for a comprehensive protection of human rights that represents a still sustainable burden on the respective States, the ECtHR should have adopted a limited functional approach to extraterritorial jurisdiction regarding the right to return of the detained children.

Before delineating such a model, it is useful to reflect again on their situation. Given that the Syrian government has completely lost control over the Kurdish-controlled territories the children live in a territory that is only controlled by a non-State actor which is, unlike Syria, not bound by any human rights treaty nor the CRC. Consequently, the children live in a “ defacto legal void”.¹⁸³ The closure of this protection gap is a primary goal in developing a workable functional approach.

a.) Nexus requirement

As a starting point, it is worth recalling thatjurisdiction means the “entitlement to human rights vis-a-vis a state”¹⁸⁴ and the “external manifestation of the power of the State”.¹⁸⁵ The creation of such a “public-power relation”¹⁸⁶ requires a nexus which links the individual with the State in a given situation and, by that, establishes jurisdiction. In order to address the situation adequately, the nexus should be of a factual and legal nature. Combined, a strong element of “proximity”¹⁸⁷ is created with regard to both, actions and omissions. Given that the right to return of the children calls for positive state action, the issue of omissions will be at the centre of the following analysis. However, the findings can be applied to negative obligations all the more.

(1) Factual nexus

In factual terms, the element of “proximity” would be inherent in the potential control by States over the situation of the detained children,¹⁸⁸ with that control originating from a state’s capacity to act and to possibly repatriate these children. Notwithstanding the emergence of a jurisdictional basis, the scope of such a capacity would be a question of substantive obligations, hence a matter for the merits stage given that positive obligations are not absolute but related to the exercise of due diligence.¹⁸⁹ Building on Ben-Naftali’s and Shany’s proposal¹⁹⁰ and partly the approach taken by the HRC in the Malta and Italy cases,¹⁹¹ factual proximity would exist in case of positive obligations if the omission to act would have direct, significant and foreseeable impact. While direct can be defined as “without essential intermediate acts”, foreseeability requires that the harm occurs according to the ordinary course of events. In order to serve as a guiding threshold criterion, significance in factual terms would require, first, a concrete threat or already occurring harm to the physical well-being of the concerned individuals. Second, to avoid that States have extraterritorial jurisdiction over large and indeterminate groups of persons,¹⁹² the concerned individuals need to be in a situation of specific vulnerability. Namely, those individuals - first and foremost children - are specifically vulnerable who ended in this situation involuntarily and, hence, do not bear any individual responsibility for it.¹⁹³

(2) Legal nexus

A legal nexus strong enough tojustify the extraterritorial applicability of the ECHR with regard to the right to return can be based on the capacity to act and two cumulative criteria.

First, the right in question needs to have, by definition, a limited number of beneficiaries, which is the case with the right to return under Article 3 § 2 of Protocol No. 4, since it is only applicable to nationals. Not to be confused with the criticized doctrine of the ECtHR, such rights can be called “special features rights”, as they require a special feature of the individual claiming that right in order to apply. However, considering that this feature is of particular relevance for the substantive scope of a right, it is in itself insufficient to create a sufficient legal basis. Taking the example of nationals abroad, they would otherwise always be within their home country’s jurisdiction if the factual requirements are met just because of their nationality. While nationality does constitute a strong legal bond, it is questionable to place the immense burden of extraterritorial jurisdiction over nationals on States without a further strong legal nexus.

Therefore, second, the individuals need to belong to a group of persons specifically protected in international law vis-a-vis the respective State by reason of which they have a stronger de jure relationship with their home country than other nationals.¹⁹⁴ This requirement reflects the interplay between the ECHR and other rules of international law and enables a harmonious interpretation, similar to the one given by the HRC in the Malta and Italy cases and the lACtHR in the 2017 Advisory Opinion¹⁹⁵ and is in line with Shany’s proposal of a “special relationship”.¹⁹⁶

However, not every rule of international law suffices to reinforce the legal nexus established by the “special feature” of the right in question but only such legal regimes containing legal entitlements of individuals towards the respective Contracting States like, e.g., the CRC but also the European Convention Against Trafficking or the Convention on the Rights ofPersons with Disabilities.

b.) No effective competing claim forjurisdiction

By definition alone, an effective competing claim forjurisdiction by another State would prevent ECHR member States in most cases to have jurisdiction based on this new functional model. In such a case, they would unlikely have the actual capacity to bring the respective persons under their control. While it might be, theoretically, still possible for States to establish control through the use of force or by intelligence operations, this would be contrary to the respect for the territorial integrity and sovereignty of other States, as guaranteed by Article 2(4) of the UN Charter.¹⁹⁷ Furthermore, a legal void regarding the protection of concerned persons exists only in those cases where there is no other State effectively claiming jurisdiction. The interest in closing this protective gap requires that the competing claim is effective. The other State needs to be potentially able to de facto exercise the jurisdiction it claims, which is not the case currently in Northeast Syria, for example. Still, the central government would naturally not give up territorial claims. Since there is hardly any undisputed territory on the planet, States could easily shirk responsibility by pointing towards competing, albeit ineffective, claims forjurisdiction of other States. Thus, there is a need for the claim to be effective.

The advantage of a functional approach to jurisdiction lies in its detachment from territorial boundaries but its limitation to the scope of specific state functions.¹⁹⁸

2.) Transferability of the approach to other rights

While the reliance on the nationality of the detained children as a “special feature” of the right to return under Article 3 § 2 of Protocol No. 4 isjustifiable given that nationality constitutes a special legal nexus, basing jurisdiction on nationality has been generally criticized for contradicting the principle of universality.¹⁹⁹ With a pinch of pathos, Judges Yudivska, Wojtyczek and Roosma in their Joint Partly Dissenting Opinion in H.F. and Others v France stated that the detained children and their mothers “have a right to life and physical integrity because they are human beings and not because they were born French”.²⁰⁰ This is undoubtedly correct. But the consequence is not, as suggested by the authors, that nationality cannot play a role at all in establishing jurisdiction.²⁰¹ Universality comes into play in terms of the material scope of a human right. Oncejurisdiction as a preliminary question is established and the human right is, consequently, applicable in the relationship between a State and an individual, the respective obligations can normally not be restricted due to the nationality of the rights holder.²⁰² An exception applies, for instance, for the right to return under the ECHR.

Notwithstanding the special character of the right to return, the reasoning of the ECtHR in H.F. and Others v France with regard to the “special features” of the case is questionable on another ground as well. The dire situation of the children is equally concerning in terms of other fundamental norms like the prohibition of torture and inhuman or degrading treatment (Article 3 of the ECHR).²⁰³ The factual nexus is comparably strong. Children not having the nationality of an ECHR member State are protected under the CRC as well, and this entitlement to protection is not limited to their States of nationality. This raises the question if the functional approach endorsed above can be transferred to rights that do not entail a “special feature” like the nationality requirement. Instead, a “special relationship” other than, but comparable to nationality could suffice to establishjurisdiction²⁰⁴

In terms of these rights, making the applicability of a human right dependent on the nationality of the alleged victim risks being arbitrary and discriminatory.²⁰⁵ Children and other persons without a recognized nationality,²⁰⁶ stateless persons and refugees may find themselves in a legal void if the applicability of general human rights in certain situations depends on the nationality of the rights holder.

Against the background of the continued existence of nation-states, standards for the protection of human rights will continue to vary from State to State. However, for human rights that do not qualify as “special feature rights”, a strong legal nexus between a State and an individual exists based on the notion of de facto nationality. Basing jurisdiction not on the formal bond of nationality but on a genuine connection between an individual and a State decreases discriminatory and arbitrary effects and enables to delimitjurisdictional areas in many cases.

The basis of such a defacto nationality would be the concept of a “genuine connection” between an individual and a State developed by the International Court of Justice (ICJ) in Nottebohm that rests on the particular circumstances of a case like most importantly the habitual residence, but also the center of the individual’s interest, family ties, participation in public life and attachment shown to a country.²⁰⁷ Similarly, the HRC acknowledged that people can have a stronger connection to a certain country like their State of long-term residence than to their state of formal citizenship.²⁰⁸

3.) Concluding Remarks

Balancing the notions of universality and nation-states, the ECtHR should have resorted to a functional model of jurisdiction with regard to the right to return of children that entails clear limits. The concept is based on an element of proximity reflecting both, a factual as well as a legal nexus. In addition to the capacity to act, in factual terms the impact of a state’s omission to act must be direct, significant and foreseeable in a situation of specific vulnerability. A legal nexus exists for rights, the application of which depends on a “special feature” like nationality, if the benefitting individuals are, in addition, specifically protected by international law. Regarding other Convention rights, a “special relationship” comparable to formal citizenship can be assumed for de facto nationals of a State who have a “genuine connection” to a certain State other than citizenship.

V. Conclusion

By examining the reasoning of the ECtHR in the case of H.F. and Others v France concerning the extraterritorial jurisdiction over the right to return of children of FTFs detained in the al- Roj and al-Hol camp in Northeast Syria, this thesis has identified a lack of clear-cut standards in the “special features doctrine” applied by the Court. While in factual circumstances different to the ones in the aforementioned case States may exercise extraterritorial jurisdiction over individuals based on the more traditional spatial or personal model, the Court rightly concluded that these concepts did not help to solve the scenario it was confronted with in H.F. and Others v France. Taking into consideration the desirable harmonious interpretation of the ECHR and other rules of international law, an analysis of the jurisprudence of other international adjudicative bodies showed an emergence of jurisdictional approaches described as “functional”. This analysis was enriched by recourse to proposals from academia.

Based on these findings, this thesis reached the conclusion that the ECtHR should have applied a functional approach tojurisdiction with certain limitations in order to address the question of extraterritorial applicability of the right to return of children under Article 3 § 2 of Protocol No. 4. This newly developed functional approach would then, with slight adjustments, also be applicable to other Convention rights, in particular the prohibition of torture and ill-treatment (Article 3 of the ECHR).

The proposed “factual and legal nexus” doctrine should have the following requirements:

1) A factual nexus, i.e., the capacity of the State to act and a direct, significant and foreseeable impact of an omission to do so as well as a situation of specific vulnerability of the concerned individuals;
2) A legal nexus, i.e., for rights applicable to a limited number of beneficiaries (“special features rights”) in addition to the special protection of these beneficiaries by other rules of international law;
3) No effective competing claim forjurisdiction by another State.

Although the fact that the applicants were children was arguably a relevant aspect in the decision-making of the CRC regarding repatriation claims vis-à-vis the States of nationality, the Committee did not expressly stress this.²⁰⁹ However, their status as minors calls for a strong connection in terms of jurisdiction. Concerns among member States regarding the consequences such a finding would have on repatriation claims of their mothers and other family members cannot influence the finding onjurisdiction in the first place.

Applying the newly developed concept to the facts underlying H.F. and Others v France, France had the capacity to act because it could potentially exercise control over the children in the camps in collaboration with the Kurdish groups. Failure to take measures would lead, without essential intermediate acts and thus directly, to continued physical and mental harm to the children and their de facto exile despite their right to return to France.²¹⁰ The harm is also foreseeable.²¹¹ Besides, the children are specifically vulnerable and specifically protected by international law, at least by the CRC and possibly by further instruments such as the European Convention Against Trafficking. The right under Article 3 § 2 of Protocol No. 4 is only guaranteed to nationals and, therefore, has a limited number ofbeneficiaries.

Regarding rights under the Convention other than the right to return, an equally strong legal nexus for the purpose of establishing jurisdiction can arise from the de facto nationality of children, based on the notion of a “genuine connection” developed in Nottebohm. For instance, children who lived in France before leaving for Syria with their parents but do not have French nationality could be considered de facto nationals in the absence of comparably strong ties with another country.

The coming into play of criteria such as the formal or de facto nationality of the children in most instances helps to demarcate jurisdiction between States. Still, owing to the factual situation in Northeast Syria, delicate questions concerning the principle of non-intervention may arise on a case-by-case basis if States exercise jurisdiction. This may, however, not lead to the conclusion that States receive a blank cheque regarding their failure to protect children in the Syrian camps but must be considered while assessing the actual capacity of a State to act.

Bibliography

Primary Sources

Legislation:

African Charter on Human and Peoples Rights (adopted 27 June 1981, entered into force 21 October 1986), 1520 UNTS 217 (ACHPR)

Charter of the United Nations and Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) (UN Charter and ICJ Statute)

Convention on the Rights of Persons with Disabilities (adopted 13 September 2006, entered into force 03 May 2008) 2515 UNTS 3

Council of Europe Convention on Action against Trafficking in Human Beings (adopted 16 May 2005, 01 February 2008) CETS 197 (European Convention Against Trafficking)

EU Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJL 158/77

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Al-Adsani v United Kingdom (2001) 34 EHRR 273

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Hirsi Jamaa and Others v Italy (2012) App No 27765/09 (ECtHR, 23 February 2012)

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Giuffre M, ‘A functional-impact model of jurisdiction: Extraterritoriality before of the European Court ofHuman Rights’ (2021) 82 QIL 53

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Moreno-Lax V, ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control - On Public Powers, S.S. and Others v. Italy, and the “Operational Model”’ (2020) 21 German Law Journal 385

Nyamutata C, ‘Young Terrorists or Child Soldiers? ISIS Children, International Law and Victimhood’ (2020) Vol 25(2) JCSL 237

Ollino A, ‘The “capacity-impact” model ofjurisdiction and its implications for States’ positive human rights obligations’ (2021) 82 QIL 81

Raible L, ‘Extraterritoriality between a rock and hard place’ (2021) 82 QIL 7

Sandelowsky-Bosman C and Liefaard T ‘Children Trapped in Camps in Syria, Iraq and Turkey: Reflections on Jurisdiction and State Obligations under the United Nations Convention on the Rights of the Child’ (2020) Vol 38(2) Nordic Journal ofHuman Rights 141

Shany Y, 'Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law' (2013) 7 L&EthicsHumRts 47

Spadaro A, ‘Repatriation of Family Members of Foreign Fighters: Individual Right or State Prerogative?’ (2021) Vol 70 ICLQ 251

Tayler L, 'Foreign Terrorist Fighter Laws: Human Rights Rollbacks under UN Security Council Resolution 2178' (2016) 18 Int'l Comm L Rev 455

Trevisanut S, ‘Is there a right to be rescued at sea? A constructive view’ (2014) 4 QIL 3

Van Poecke T and Wauters E, ‘The Repatriation of European Nationals from Syria as Contested Before Domestic Courts in Belgium and Beyond‘ (2021) Working Paper No. 229 <https://papers.ssrn,com/sol3/papers.cfm?abstract_id=3824818> accessed 20 June 2023

Other Documents:

Blogposts

Berkes A, ‘A New Extraterritorial Jurisdictional Link Recognised by the IACtHR’ (EJIL:Talk!, 28 March 2018) <https://www.ejiltalk.org/a-new-extraterritorial-jurisdictional-link-recognised-by-the-iacthr/> accessed 20 June 2023

Busco P, ‘Not All that Glitters Is Gold: the Human Rights Committee’s Test for the Extraterritorial Application of the ICCPR in the Context of Search and Rescue Operations’, (Opinio Juris, 02 March 2021) <http://opiniojuris.org/2021/03/02/not-all-that-glitters-is-gold-the-human-rights-committees-test-for-the-extraterritorial-application-of-the-iccpr-in-the-context-of-search-and-rescue-operations/> accessed 20 June 2023

Cali B, ‘Has ‘Control over rights doctrine’ for extra-territorial jurisdiction come of age? Karlsruhe, too, has spoken, now it’s Strasbourg’s turn’ (EJIL:Talk!, 21 July 2020) <https://www.ejiltalk.org/has-control-over-rights-doctrine-for-extra-territorial-jurisdiction-come-of-age-karlsruhe-too-has-spoken-now-its-strasbourgs-turn/> accessed 20 June 2023

Duffy H, ‘French Children in Syrian Camps: the Committee on the Rights of the Child and the Jurisdictional Quagmire’ (Leiden Children’s Rights Observatory, 18 February 2021) <https://www.childrensrightsobservatory.org/case-notes/casenote2021-3> accessed 20 June 2023

Milanovic M, ‘Drowning Migrants, the Human Rights Committee, and Extraterritorial Human Rights Obligations’ (EJIL:Talk!, 16 March 2021) <https://www.ejiltalk.org/drowning-migrants-the-human-rights-committee-and-extraterritorial-human-rights-obligations/> accessed 20 June 2023

— —, ‘European Court Finds Russia Assassinated Alexander Litvinenko’ (EJIL:Talk!, 23 September 2021) <https://www.ejiltalk.org/european-court-finds-russia-assassinated-alexander-litvinenko/> accessed 20 June 2023

— —, ‘Georgia v. Russia No. 2: The European Court’s Resurrection of Bankovic in the Contexts of Chaos’ (EJIL:Talk!, 25 January 2021) <https://www.ejiltalk.org/georgia-v-russia-no-2-the-european-courts-resurrection-of-bankovic-in-the-contexts-of-chaos/> accessed 20 June 2023

— —, ‘Repatriating the Children of Foreign Terrorist Fighters and the Extraterritorial Application of Human Rights‘ (EJIL:Talk!, 10 November 2020) <https://www.ejiltalk.org/repatriating-the-children-of-foreign-terrorist-fighters-and-the-extraterritorial-application-of-human-rights/> accessed 20 June 2023

Minervini G, ‘ H.F. and others v France: Has the time finally come to rethink extraterritorial jurisdiction?’ (ADiMBlog, November 2022) <https://www.adimblog.com/2022/11/30/h-f-and-others-v-france-has-the-time-finally-come-to-rethink-extraterritorial-jurisdiction/> accessed 20 June 2023

Mustasaari S, ‘The issue of extraterritorial jurisdiction in the repatriation of children detained in Syrian camps: Shortcomings in the ECtHR Judgment in H.F. and Others v France’ (Strasbourg Observers, 01 November 2022) <https://strasbourgobservers.com/2022/11/01/the-issue-of-extraterritorial-jurisdiction-in-the-repatriation-of-children-detained-in-syrian-camps-shortcomings-in-the-ecthr-judgment-in-h-f-and-others-v-france%EF%BF%BC/> accessed 20 June 2023

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Other sources

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— —, ‘Between two fires - danger and desperation in Syria’s Al-Hol camp’ (November 2022)

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[...]

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¹ OHCHR, ‘Syria: UN Human Rights Chief condemns brutal killing of two girls, alarmed by sharp rise in violence at Al-Hol Camp’ Press Release (18 November 2022) <https://www.ohchr.org/en/press-releases/2022/11/syria-un- human-rights-chief-condemns-brutal-killing-two-girls-alarmed-sharp> accessed 20 June 2023.

² Human Rights Watch, ‘“My Son is Just Another Kid” - Experiences of Children Repatriated from Camps for ISIS Suspects and Their Families in Northeast Syria’ (New York, 21 November 2022).

³ Saeed Bagheri and Alison Bisset, ‘International Legal Issues Arising from Repatriation of the Children of Islamic State’ (2022) Vol 27(3) JCSL 363, 382.

⁴ H.F. and Others v France (2022) App Nos 24384/19 and 44234/20 (ECtHR, 14 September 2022), para. 29.

⁵ Dutch Supreme Court (Judgment), ECLI:NL:HR:2020:1148 (26 June 2020).

⁶ Court of Appeal ofBrussels (Judgment), No 2018/KR/45 (12 September 2018).

⁷ See Thomas Van Poecke and Evelien Wauters, ‘The Repatriation of European Nationals from Syria as Contested Before Domestic Courts in Belgium and Beyond‘ (2021) Working Paper No. 229 <https://papers.ssrn.com/sol3/papers.cfm7abstract id=3824818> accessed 20 June 2023, 42.

⁸ Higher Administrative Court ofBerlin-Brandenburg (Order), OVG 10 S 43.19 (6 November 2019).

⁹ An obligation was denied in Higher Administrative Court of Berlin-Brandenburg (Order), OVG 10 S 64.19 (10 June 2020).

¹⁰ H.F. and Others v France (n 4), para. 154.

¹¹ Ibid, para. 214.

¹² For an overview see Christoph Grabenwarter, European Convention on Human Rights: Commentary (CH Beck 2014), 8ff.

¹³ See, inter alia, Yuval Shany, 'Taking Universality Seriously: A Functional Approach to Extraterritoriality in International HumanRights Law' (2013) 7 L&EthicsHumRts 47, 58.

¹⁴ Al-Skeini v United Kingdom (2011) 53 EHRR 18, Concurring Opinion of Judge Bonello, para. 5.

¹⁵ Shany (n 13), 57.

¹⁶ See Conall Mallory C, ‘A second coming of extraterritorialjurisdiction at the European Court ofHumanRights?’ (2021)82 QIL31,46.

¹⁷ David McKeever, ‘Repatriating Foreign Terrorist Fighters and Their Family Members: What International Law Requires, and What National Courts Will Do’ (2022) JCSL (Preprint), 10ff; Bagheri (n 3), 373; Alessandra Spadaro, ‘Repatriation of Family Members of Foreign Fighters: Individual Right or State Prerogative?’ (2021) Vol 70ICLQ 251, 263; Francesca Capone, ‘The children (and wives) of foreign ISIS fighters: Which obligations upon the States of nationality?’ (2019) 60 QIL 69, 21f; Court of Appeal ofBrussels (n 6); Higher Administrative Court ofBerlin-Brandenburg (n 9), para. 27.

¹⁸ H.F. and Others v France (n 4), para. 212.

¹⁹ UNCRC, L.H. and Others v France, Communication Nos 79/2019 and 109/2019 (2 November 2020) UN Doc CRC/C/85/D/79/2019, CRC/C/85/D/109/2019, para. 9.7; UNCRC, P.N. and Others v Finland, Communication No 100/19 (12 September2022) UNDoc CRC/C/91/D100/2019, paras. 10.9f.

²⁰ L.H. and OthersvFrance (n 19), para. 3.1; P.N. and OthersvFinland (n 19), para. 3.1.

²¹ See Andrea Bianchi, International Law Theories:An Inquiry into Different Ways ofThinking (OUP 2016), 25.

²² Poonam Taneja and Jewan Abdi, ‘Islamic State: Kurdish forces threaten to stop guarding camps’ BBC News (Northern Syria, 25 November 2022) <https://www.bbc.com/news/world-middle-east-63745833> accessed 20 June2023.

²³ Council of Europe, ‘Chart of signatures and ratifications of treaty 046’ (Status as of 20 June 2023) <https://www.coe.int/en/web/conventions/full-list?module=signatures-by-treaty&treatynum=046>.

²⁴ H.F. and Others v France (n 4), para. 154.

²⁵ Ibid, para. 203.

²⁶ Ibid, para. 214.

²⁷ Ibid, paras. 259 and 283.

²⁸ Médecins Sans Frontières, ‘Between two fires - danger and desperation in Syria’s Al-Hol camp’ (November 2022), 5; see also map in UNGA, ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic’, HRC 55th session (17 August 2022) UN Doc A/HRC/51/45, Annex II.

²⁹ See information on the website of the Global Coalition ‘Global Coalition: Our Mission’ <https://theglobalcoalition.org/en/> accessed 20 June 2023.

³⁰ This thesis uses the term “Daesh” for the Jihadist terror organization also known as “Islamic State of Iraq and the Levant” (ISIL) or “Islamic State ofIraq and Syria” (ISIS). If in direct quotes a reference is made to one of the latter terms, it must be equated with “Daesh”.

³¹ Médecins Sans Frontières, ‘Fires’ (n 28), 9.

³² UNGA, ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic’, HRC 55th session (17 August 2022) UN Doc A/HRC/51/45, para. 97.

³³ Conrad Nyamutata, ‘Young Terrorists or Child Soldiers? ISIS Children, International Law and Victimhood’ (2020) Vol 25(2) JCSL 237, 238.

³⁴ Capone (n 17), 76; Bagheri (n 3), 382.

³⁵ UNGA, ‘Report of the Independent International Commission’, (n 32), para. 97.

³⁶ See OHCHR, ‘Syria‘ (n 1).

³⁷ Médecins Sans Frontières, ‘A lost generation live in fear inside Syria’s al-Hol camp’ (Project Update, 7 November 2022) <https://www.msf.org/generation-lost-danger-and-desperation-syria%E2%80%99s-al-hol- camp> accessed 20 June 2023.

³⁸ See Médecins Sans Frontières, ‘Fires’ (n 28), 9.

³⁹ Ibid.

⁴⁰ OHCHR, ‘Syria‘ (n 1).

⁴¹ Ibid.

⁴² Human Rights Watch, ’Syria: Repatriations Lag for Foreigners with Alleged ISIS Ties’ (New York, 15 December 2022) <https://www.hrw.org/news/2022/12/15/syria-repatriations-lag-foreigners-alleged-isis-ties> accessed 20 June 2023.

⁴³ UNSC Res 2178 (24 September 2014) UN Doc S/RES/2178(2014).

⁴⁴ See Francesca Capone, ‘Countering “Foreign Terrorist Fighters”: A Critical Appraisal of the Framework Established by the UN Security Council Resolutions’ (2016) Vol 2016(1) IYIL 227, 230; Letta Tayler, 'Foreign Terrorist Fighter Laws: Human Rights Rollbacks under UN Security Council Resolution 2178' (2016) 18 Int'l Comm L Rev 455, 459ff.

⁴⁵ Samantha Besson, 'The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to' (2012) 25 LJIL 857, 867.

⁴⁶ Besson (n 45), 860; See also UNHRC, Lopez Burgos v Uruguay, 52/1979 (29 July 1981) UN Doc CCPR/C/13/D/52/1979, para. 12.2.

⁴⁷ NoamLubell, Extraterritorial Use ofForceAgainst-Non-StateActors (OUP 2010), 209.

⁴⁸ Martinus Nijhoff, Collected Edition ofthe ‘travauxpreparatories’ ofthe European Convention on Human Rights (Vol 6, Dordrecht etc., 1985), Vol 6, 260.

⁴⁹ Besson (n45), 863.

⁵⁰ See William Anthony Schabas, European Convention on Human Rights: A Commentary (1st Edition, OUP 2015), 45.

⁵¹ VCLT, Art. 32.

⁵² Tyrerv United Kingdom (1980) 2 EHRR 1, para. 31; Zolotukhin v Russia (2009) App No 14939/03 (ECtHR, 10 February 2009), para. 80.

⁵³ Bankovi c and Others v Belgium and Others (2007) 44 EHRR SE5, para. 75, emphasis added.

⁵⁴ Shany, (n 13), 55.

⁵⁵ Bankovic (n 53), para. 75.

⁵⁶ H.F. and Others v France (n 4), para. 186; see also Al-Skeini v United Kingdom (2011) 53 EHRR 18, paras. 136f.; Hirsi Jamaa and Others v Italy (2012) App No 27765/09 (ECtHR, 23 February 2012), para. 74.

⁵⁷ Besson (n45), 879.

⁵⁸ See Schabas (n 50), 91.

⁵⁹ See Ilascu and OthersvMoldova andRussia (2005) 40 EHRR 1030, para. 331.

⁶⁰ H.F. and Others v France (n 4), paras. 197ff.

⁶¹ Rantsev v Cyprus andRussia (2010) App No 25965/04 (ECtHR, 7 January 2010), para. 243.

⁶² H.F. and Others v France (n 4), para. 198.

⁶³ Ibid, para. 199.

⁶⁴ Annick Pijnenburg, ‘HF and Others v France: Extraterritorial Jurisdiction without Duty to Repatriate IS-Children and their Mothers’ (EJIL:Talk!, 14 October 2022) <https://www.eiiltalk.org/hf-and-others-v-france- extraterritorial-jurisdiction-without-duty-to-repatriate-is-children-and-their-mothers/> accessed 20 June 2023.

⁶⁵ Ibid.

⁶⁶ M.N. and Others v Belgium (2020) App No 3599/18 (ECtHR, 5 May 2020), para. 112.

⁶⁷ H.F. and Others v France (n 4), para. 202.

⁶⁸ Ibid, paras. 205f.

⁶⁹ Ibid, para. 208.

⁷⁰ Ibid, para. 209.

⁷¹ Ibid, para. 210.

⁷² Ibid, para. 211.

⁷³ Ibid, para. 213.

⁷⁴ Georgia v Russia (II) (2021) App No 38263/08 (ECtHR, 25 January 2021), para. 332; Guzelyurtlu and Others v Cyprus and Turkey (2019) App No 36925/07 (ECtHR, 29 January 2019), para. 190; Hanan v Germany (2021) App No 4871/16 (ECtHR, 16 February 2021), para. 142; Romeo Castano v Belgium (2019) App No 8351/17 (ECtHR, 9 July 2019), para. 42.

⁷⁵ Guzelyurtlu (n74), para. 190.

⁷⁶ See also Grabenwarter (n 12), 8ff.

⁷⁷ Carter vRussia (2021) App No 20914/07 (ECtHR, 21 September 2021), para. 125.

⁷⁸ H.F. and Others v France (n 4), paras. 12, 191.

⁷⁹ Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, para. 62.

⁸⁰ Ilascu, (n 59), para. 382.

⁸¹ Shany (n 13), 60.

⁸² See Ilascu, (n 59).

⁸³ However, failing ratification Art. 3§2 ofProtocol No.4is not applicable to the UK.

⁸⁴ See Al-Skeini (n 56), paras. 134-136.

⁸⁵ See Georgia v Russia (II) (n 74), para. 131 with farther references.

⁸⁶ Ibid, para. 132.

⁸⁷ See Lea Raible, ‘Extraterritoriality between a rock and hard place’ (2021) 82 QIL 7, 24.

⁸⁸ Cyprus v Turkey (1982) 4 EHRR 482, para. 8.

⁸⁹ Ibid.

⁹⁰ See also H. F. and Others v France (n 4), para. 206.

⁹¹ McKeever (n 17), 24 (footnote omitted).

⁹² Xv UnitedKingdom (1977) App No 7547/76 (ECommHR, 15 December 1977), p. 73.

⁹³ See Celine Martelet, ‘France came to Syria with a list of children to take home. One was left behind’ Middle East Eye (Al-Roj camp, 17 September 2022 <https://www.middleeasteye.net/news/france-syria-list-children-take- home-one-left-behind> accessed 20 June 2023.

⁹⁴ UN Human Rights Special Procedures, Special Rapporteurs, Independent Experts & Working Groups, ‘Extra-territorial jurisdiction of States over children and their guardians in camps, prisons, or elsewhere in the northern Syrian Arab Republic’, para. 21.

⁹⁵ Ibid, para. 26.

⁹⁶ H.F. and Others v France (n 4), para. 248.

⁹⁷ UNHRC, Stewart v Canada, Communication No 538/1993 (1 November 1996) UN Doc CCPR/C/58/D/538/1993,para. 12.3.

⁹⁸ H.F. and Others v France (n 4), para. 245.

⁹⁹ Ibid, para. 252.

¹⁰⁰ H.F. and Others v France (2022) App Nos 24384/19 and 44234/20 (ECtHR, 14 September 2022), Joint Concurring Opinion of Judges Pavli and Schembri Orland, para. 2.

¹⁰¹ UNHRC, General Comment No. 27, Article 12 (Freedom of Movement) (Sixty-second session, 1999), UN Doc CCPR/C/21/Rev.1/Add.9 (2000), para. 19.

¹⁰² H.F. and Others v France (n 4), para. 252.

¹⁰³ L.H. and Others v France (n 19); P.N.and Others v Finland (n 19).

¹⁰⁴ H.F. and Others v France (n 4), para. 259.

¹⁰⁵ Ibid.

¹⁰⁶ Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3, paras. 78f.

¹⁰⁷ H.F. and Others v France (n 4), para. 257.

¹⁰⁸ Ibid, para. 260.

¹⁰⁹ Ibid, para. 263.

¹¹⁰ Ibid, paras. 264ff.

¹¹¹ Pijnenburg (n 64).

¹¹² H.F. and Others v France (n 4), paras. 272ff.

¹¹³ See H.F. and Others v France, Joint Concurring Opinion (n 100), para. 3.

¹¹⁴ Council of Europe, ‘Collected Edition of the “Travaux Préparatoires” of Protocol No. 4 to the Convention’ (Strasbourg 1976), p. 113.

¹¹⁵ H.F. and Others v France, Joint Concurring Opinion (n 100), para. 1.

¹¹⁶ Ibid, para. 2.

¹¹⁷ Ibid; see for such an approach also District Court of The Hague (Judgment), NL:RBDHA:2019:11909 (11 November 2019), overturned by Court of Appeal of The Hague (Judgment), NL:GHDHA:2019:3208 (22 November 2019), annulment confirmed by Dutch Supreme Court (n 5).

¹¹⁸ H.F. and Others v France (2022) App Nos 24384/19 and 44234/20 (ECtHR, 14 September 2022), Partly Dissenting Opinion of Judges Yudivska, Wojtyczek and Roosma, para. 16.

¹¹⁹ Gustavo Minervini, ‘ H.F. and others v France: Has the time finally come to rethink extraterritorial jurisdiction?’ (ADiM Blog, November 2022) <https://www.adimblog.com/2022/11/30/h-f-and-others-v-france- has-the-time-finally-come-to-rethink-extraterritorial-jurisdiction/> accessed 20 June 2023.

¹²⁰ Marko Milanovic, ‘Georgia v. Russia No. 2: The European Court’s Resurrection of Bankovic in the Contexts of Chaos’ (EJIL:Talk!, 25 January 2021) <https://www.ejiltalk.org/georgia-v-russia-no-2-the-european-courts- resurrection-of-bankovic-in-the-contexts-of-chaos/> accessed 20 June 2023.

¹²¹ Pijnenburg (n 64).

¹²² Ibid.

¹²³ Sanna Mustasaari, ‘The issue of extraterritorial jurisdiction in the repatriation of children detained in Syrian camps: Shortcomings in the ECtHR Judgment in H.F. and Others v France’ (Strasbourg Observers, 01 November 2022) <https://strasbourgobservers.com/2022/11/01/the-issue-of-extraterritorial-jurisdiction-in-the-repatriation- of-children-detained-in-syrian-camps-shortcomings-in-the-ecthr-judgment-in-h-f-and-others-v- france%EF%BF%BC/> accessed 20 June 2023.

¹²⁴ Stichting Mothers of Srebrenica and Others v The Netherlands (2013) App No 65542/12 (ECtHR, 11 June 2013), para. 139; Al-Adsani v United Kingdom (2001) 34 EHRR 273, para. 55; Maire v Portugal (2006) 43 EHRR 13, para. 72.

¹²⁵ StichtingMothers ofSrebrenica (n 124), para. 139.

¹²⁶ Al-Adsani (n 124), para. 55.

¹²⁷ Wagner v Luxembourg (2007) App No 76240/01 (ECtHR, 28 June 2007), para. 120; Maire v Portugal (n 124), para. 72; see also Khan v France (2019) App No 12267/16 (ECtHR, 28 February 2019), para. 44.

¹²⁸ See Paolo Busco, ‘Not All that Glitters Is Gold: the Human Rights Committee’s Test for the Extraterritorial Application of the ICCPR in the Context of Search and Rescue Operations’, (Opinio Juris, 02 March 2021) <http://opiniojuris.org/2021/03/02/not-all-that-glitters-is-gold-the-human-rights-committees-test-for-the- extratemtorial-application-of-the-iccpr-in-the-context-of-search-and-rescue-operations/> accessed 20 June 2023.

¹²⁹ See Riccardo Pisillo Mazzeschi, International Human Rights Law - Theory and Practice (Springer 2021), 158.

¹³⁰ Violeta Moreno-Lax, ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control—On Public Powers, S A. and Others v. Italy, and the “Operational Model”’ (2020) 21 German Law Journal 385, 408.

¹³¹ Ibid.

¹³² UNCRC, Sacchi et alvAryeniina, Communication No 104/2019 (22 September2021), UN Doc CRC/C/88/D/104/2019, para. 10.7.

¹³³ ACmHPR, ‘General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4)’ (2015), available at https://achpr.au.int/en/node/851, accessed 20 June 2023, para. 14.

¹³⁴ Al Skeini, Concurring Opinion (n 14), paras. 3 and 16.

¹³⁵ Busco (n 128).

¹³⁶ Moreno-Lax (n 137), 402.

¹³⁷ Giuffre (n 133), 67.

¹³⁸ Ibid.

¹³⁹ See Basak Qali, ‘Has ‘Control over rights doctrine’ for extra-territorial jurisdiction come of age? Karlsruhe, too, has spoken, now it’s Strasbourg’s turn’ (EJIL:Talk!, 21 July 2020) <https://www.ejiltalk.org/has-control-over- rights-doctrine-for-extra-territorial-jurisdiction-come-of-age-karlsruhe-too-has-spoken-now-its-strasbourgs- turn/> accessed 20 June 2023; Helen Duffy, ‘French Children in Syrian Camps: the Committee on the Rights of the Child and the Jurisdictional Quagmire’ (Leiden Children’s Rights Observatory, 18 February 2021) <https://www.childrensrightsobservatory.org/case-notes/casenote2021-3> accessed 20 June 2023; Tanya Mehra, Matthew Wentworth and Abigail Thorley, ‘The European Court ofHuman Rights Sitting on the Fence?: Its Ruling and Impact on the Repatriation of European Children from North-East Syria’ (International Centre for Counter-Terrorism, 16 September 2022) <https://www.icct.nl/publication/european-court-human-rights-sitting-fence-its- ruling-and-impact-repatriation-european> accessed 20 June 2023.

¹⁴⁰ Mehra et al (n 146).

¹⁴¹ L.H. v France (n 19), para. 9.7; P.N. v Finland (n 19), para. 10.9.

¹⁴² Ibid, para. 6.7.

¹⁴³ 6 AS. and Others v Malta, 3043/2017 (13 March 2020) UN Doc CCPR/C/128/D/3043/2017, Annex I, Individual opinion of Committee member Andreas Zimmermann (dissenting), para. 7.

¹⁴⁴ Ibid, para. 5.

¹⁴⁵ Busco (n 128).

¹⁴⁶ See Orna Ben-Naftali & Yuval Shany, 'Living in Denial: The Application ofHuman Rights in the Occupied Territories' (2003) 37 IsrLRev 17, 63.

¹⁴⁷ A.S. vltaly (n 161), para. 7.8.

¹⁴⁸ Ibid.

¹⁴⁹ Giuffre (n 133), 62f., emphasis inthe original.

¹⁵⁰ Ibid, 62.

¹⁵¹ Moreno-Lax (n 137), 398.

¹⁵² Ibid, 387.

¹⁵³ Ibid, 403.

¹⁵⁴ Ibid.

¹⁵⁵ Ibid,414.

¹⁵⁶ Jaloud v Netherlands (2014) App No 444708/08 (ECtHR, 20 November 2014), paras. 141, 152; see Moreno- Lax (n 137), 404.

¹⁵⁷ Moreno-Lax (n 137), 414.

¹⁵⁸ See on the domestic level Federal Constitutional Court of Germany (Judgment), 1 BvR 2835/17 (19 May 2020), para. 104.

¹⁵⁹ Alice Ollino, ‘The “capacity-impact” model ofjurisdiction and its implications for States’ positive human rights obligations’ (2021) 82 QIL 81, 82; Besson (n 45), 868; Raible (n 87), 17.

¹⁶⁰ Ibid, 92.

¹⁶¹ See suggested approach regarding the substantive obligations of states in dealing with repatriation claims under Article 3 § 2 of Protocol No. 4 under Substantive obligations of member States under Article 3 § 2 of Protocol No. 4 onp. 13.

¹⁶² See Ollino(n194),91.

¹⁶³ Mehra et al (n 146).

¹⁶⁴ Ollino(n194),91.

¹⁶⁵ But so Raible (n 87), 18.

¹⁶⁶ UNHRC, Samuel Lichtensztejn v. Uruguay, Communication No 77/1980 (31 March 1983), UN Doc CCPR/C/OP/2, para. 8.3.

¹⁶⁷ William Anthony Schabas and Manfred Nowak, U.N. International Covenant on Civil and Political Rights: Nowak's CCPR commentary (3rd revised edn, NP Engel 2019), 46.

¹⁶⁸ See Karen Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Volume 11, BRILL 2013), 47.

¹⁶⁹ Shany (n 13), 69.

¹⁷⁰ Ibid.

¹⁷¹ For an overview of these cases see Da Costa (n 203), 45ff.

¹⁷² See M.N. v Belgium (n 66).

¹⁷³ Shany (n 13), 50.

¹⁷⁴ S A. and Others v. Italy (pending) App No 21660/18 (ECtHR, communicated 26 June 2019) <http://hudoc.echr.coe.int/eng?i=001-194748> accessed 20 June 2023.

¹⁷⁵ Giuffré(n133), 73.

¹⁷⁶ Moreno-Lax (n 137), 836.

¹⁷⁷ Duffy (n 146).

¹⁷⁸ Milanovic, ‘Repatriating the Children’, (n 152).

¹⁷⁹ Berkes (n 135).

¹⁸⁰ Marko Milanovic, ‘European Court Finds Russia Assassinated Alexander Litvinenko’ EJIL:Talk! (23 September 2021) <https://www.ejiltalk.org/european-court-finds-russia-assassinated-alexander-litvinenko/> accessed 20 June 2023; Pijnenburg, ‘Extraterritorial Jurisdiction (n 64).

¹⁸¹ Carter (n77), paras. 125-130.

¹⁸² Ibid, paras. 131f

¹⁸³ Chrisje Sandelowsky-Bosman and Ton Liefaard, ‘Children Trapped in Camps in Syria, Iraq and Turkey: Reflections on Jurisdiction and State Obligations under the United Nations Convention on the Rights of the Child’ (2020) Vol 38(2) Nordic Journal ofHumanRights 141, 148, 150.

¹⁸⁴ Milanovic, ‘Repatriating the Children’ (n 152).

¹⁸⁵ Maria Gavouneli, Functional jurisdiction in the Law ofthe Sea (Vol 62, BRILL 2007), 6; Giuffre (n 133), 76.

¹⁸⁶ See Moreno-Lax (n 137), 397.

¹⁸⁷ See for this notion also UN Human Rights Special Procedures (n 94), para. 36.

¹⁸⁸ See Ben-Naftali (n 169), 50.

¹⁸⁹ See Marko Milanovic, Extraterritorial Application ofHumanRights Treaties (OUP 2011), 210; Mehra et al (n 146).

¹⁹⁰ See p. 24f.

¹⁹¹ See pp. 21ff.

¹⁹² See Giuffre (n 133), 76f.

¹⁹³ Sandelowsky-Bosman, ‘Repatriation’ (n 150).

¹⁹⁴ See ibid.

¹⁹⁵ The Environment and Human Rights (n 130), paras. 81f.

¹⁹⁶ Shany (n 13), 69.

¹⁹⁷ See The Environment and Human Rights (n 130), para. 90.

¹⁹⁸ Ezgi Yildiz, ‘Extraterritoriality reconsidered’, in Daniel S. Margolies et al (eds) The Extraterritoriality ofLaw (1st ednRoutledge) 215, 223.

¹⁹⁹ Milanovic, ‘Repatriating the Children’ (n 152); van Poecke (n 7),21.

²⁰⁰ H.F. and Others v France, Joint Partly Dissenting Opinion (n 118), para. 12.

²⁰¹ See Spadaro (n 17), 260.

²⁰² See Besson (n 45), 867.

²⁰³ H.F. and Others v France, Joint Partly Dissenting Opinion (n 118), para. 11.

²⁰⁴ See Shany (n 13), 69.

²⁰⁵ Milanovic, ‘Repatriating the Children’ (n 152); Bagheri (n 34), 384.

²⁰⁶ Seeforchildreninthecamps Sandelowsky-Bosman, ‘ChildrenTrapped’ (n218), 145f.

²⁰⁷ Nottebohm case (Liechtenstein v Guatemala) (Second Phase) (Judgment) [1955] ICJ Rep 4, 23.

²⁰⁸ UNHRC, Warsame v Canada, Communication No 1959/2010 (21 July 2011) UN Doc CCPR/C/102/D/1959/2010, para. 8.5.

²⁰⁹ Duffy (n 146).

²¹⁰ Ibid.

²¹¹ Ibid.