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II. EUROPEAN COURT OF HUMAN RIGHTS MEDVEDYEV ET AL V FRANCE (GRAND CHAMBER, APPLICATION NO 3394/03) JUDGMENT OF 29 MARCH 2010

Published online by Cambridge University Press:  03 August 2010

Efthymios Papastavridis
Efthymios Papastavridis
Affiliation:
Adjuct Professor, University of Thrace, Faculty of Laws; Research Fellow, Academy of Athens, Greece, LLM (Athens), LLM (UCL), PhD (UCL).
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Extract

On 29 March 2010, the European Court of Human Rights (ECtHR), sitting as a Grand Chamber, delivered its Judgment in the Medvedyev v France case, which involved the interdiction and the exercise of enforcement jurisdiction over a drug smuggling vessel on the high seas. The case was referred by both the applicants and the Respondent State to the Grand Chamber, following the Judgment of a Chamber of the Fifth Section of the Court, on 10 July 2008. The Grand Chamber accepted this referral and the public hearing took place on 6 May 2009. This decision is of considerable importance as one of the very few decisions of the Strasbourg Court which has touched upon issues pertaining to the law of the sea, let alone to interdiction of vessels on the high seas, and the only case to have found a violation of the Convention on the part of the interdicting State, namely France.

Type
Current Developments: International Courts and Tribunals
Information
International & Comparative Law Quarterly , Volume 59 , Issue 3 , July 2010 , pp. 867 - 882
Copyright
Copyright © 2010 British Institute of International and Comparative Law

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References

1 See Medvedyev et al v France, Judgment of 29 March 2010 (Grand Chamber, Application No 3394/03); available at <www.echr.coe.int>; (accessed 19 April 2010).

2 See Medvedyev et al v France, Judgment of 10 July 2008 (Fifth Section) (hereinafter 2008 Judgment). A short comment at the day of the hearing of the case was provided by T Thienel, Oral Argument in Medvedyev v France; available at <http://invisiblecollege.weblog.leidenuniv.nl/2008/05/13/oral-argument-in-medvedyev-v-france> (accessed 20 December 2008).

3 For the web cast of hearing see at <http://www.echr.coe.int/ECHR/EN/Header/Press/Multimedia/Webcasts+of+public+hearings/webcastEN_media?&p_url=20090506-1/en/> (accessed 19 April 2010).

4 The terms ‘interception’ or ‘interdiction’ are used interchangeably to connote the physical interference with foreign-flagged or stateless vessels on the high seas. However, as a matter of international law, neither of these terms has any legal significance eo nomine. Rather, the only case of interference acknowledged by international law on the high seas is the right to visit enshrined in art 110 of the of the United Nations Convention on the Law of the Sea, 1833 UNTS 397 (hereinafter: LOSC).

5 Although a wide variety of methods are utilized by drug traffickers in plying their trade, the use of private and commercial vessels has long been extensive. On traffic of narcotic drugs generally see H Ghodse, International Drug Control into the 21st Century (Ashworth, Kent, 2008).

6 In 2009, there were 24 bilateral counter-drug smuggling agreements between US and other States in the Caribbean region, which provided for the institution of ship-rider; see the latest International Narcotics Control Strategy Report (2009), available at <http://www.state.gov/p/inl/rls/nrcrpt/ 2009>.

7 See United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (adopted Vienna, 19 December 1988) 21 ILM (1988) 1261 (hereinafter: Vienna Convention).

8 See also Rigopoulos v Spain, Application No 37388/97 EHRR 1999-II. In comparison, apparently there have been more relevant cases with regard to interdiction of vessels carrying asylum seekers on the high seas: see inter alia Haitian Center for Human Rights v United States, Case 10.675, Report No 51/96, Inter-American Commission of Human Rights Doc OEA/Ser.L/V/II.95 Doc 7 rev (13 March 1997).

9 The Diplomatic Note read as follows: The Ministry of Foreign Affairs and International Cooperation (…) has the honour formally to confirm that the Royal Government of Cambodia authorises the French authorities to intercept, inspect and take legal action against the ship Winner, flying the Cambodian flag (…)' (emphasis added).

10 See European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4 November 1950; 213 UNTS 2886 [hereinafter: ECHR or the Convention].

11 The jurisdiction of the Court is posited in art 1, which provides that ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. Therefore, compatibility ratione loci requires the alleged violation of the Convention to have taken place within the jurisdiction of the respondent State or in territory effectively controlled by that State (Cyprus v Turkey [GC], no 25781/94, paras 75–81, EHRR 2001-IV; Drozd and Janousek v France and Spain Series A No 240 (1999) paras 84–90).

12 See (n 1) para 67 (emphasis added).

13 See on this issue generally Lagrange, E, ‘L' Application de la Convention de Rome à des Actes Accomplis par les Etats Parties en dehors du Territoire National’ (2008) 112 RGDIP 521Google Scholar.

14 In Banković v Belgium, however, the Court noted that the European Convention applies ‘in the legal space (espace juridique) of the Contracting States’ and it was not designed to be applied throughout the world, even in respect of the conduct of the Contracting States'. See Banković and Others v Belgium et al (2001) 44 EHRR SE5; para 80.

15 See inter alia: Öcalan v Turkey (Merits), Application No 46221/99, Chamber Judgment of 12 March 2003 and Grand Chamber Decision of 12 May 2005 and Ilaşcu and Others v Moldova and Russia [GC] no 48787/99, ECHR 2004-VII, para 314.

16 See (n 14) para 73.

17 See Xhavara and Others v Italy and Albania (Application No 39473/98), Admissibility Decision of 11 January 2001.

18 See Rigopoulos v Spain (n 8).

19 See (n 1) para 66.

20 See ibid para 68.

21 See ibid para 50.

22 Under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Party in its observations on the admissibility of the application, unless there are exceptional circumstances, such as the fact that the grounds for the objection of inadmissibility came to light late in the day. See ibid paras 69–71.

23 ibid para 75.

24 See Amuur v France (1996) 22 EHRR 533 (1996-III), para 50.

25 See inter alia, Bozano v France Series A No 111 (1986) para 54; Assanidze v Georgia [GC], no 71503/01, para 171, EHRR (2004-II).

26 See (n 1) para 80. cf also 2008 Judgment, para 53 and Malone v UK Series A No 82 (1984) 7 EHRR 14 para 67.

27 See (n 1) para 43.

28 As amended by the implementing law of the Vienna Convention see: la loi no 96-359 du 29 avril 1996; 2008 Judgment, para 25.

29 See (n 1) para 45.

30 See 2008 Judgment, para 45.

31 Section 12 of 2005 Law extended the application of the 1994 Law to ‘to ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention’ see (n 1) para 35.

32 In accordance with art 110 LOSC, the right to visit is accorded to warships and other state vessels against only those vessels, reasonably suspected of having engaged in some proscribed activity, such as piracy jure gentium and slave trading et al.

33 See also M Nordquist (ed), United Nations Convention on the Law of the Sea. A Commentary, Vol. III, (1985) 224.

34 This obligation depends on the content of the above-mentioned Drug Conventions as well as it is an obligation of conduct rather than result. See also Bellayer-Roille, A, ‘La Lutte contre le Narcotrafic en Mer Caraïbe’ 111 RGDIP (2007) 365Google Scholar.

35 Emphasis added. See also M Nordquist (n 33) 224.

36 See LB Sohn, ‘International Law of the Sea and Human Rights Issues’ in T Clingan (ed), The Law of the Sea: What Lies Ahead? (University of Miami, Miami, 1988) 60.

37 See 2008 Judgment, para 31. cf also relevant arguments of the French Government before the Grand Chamber (n 1) para 55.

38 Stateless vessels are the vessels, which, as a matter of international law, have no nationality. See in general H Meyers, The Nationality of Ships (Martinus Nijhoff, The Hague, 1967).

39 See (n 1) para 88 and 2008 Judgment, para 53.

40 See (n 1) para 89.

41 See the concurring view of Churchill and Lowe, who set forth that ‘[t]he better view appears to be that there is a need of some jurisdictional nexus in order that a State may extend its laws to those on board a stateless ship and enforce the laws against them’ in RR Churchill and AV Lowe (eds), The Law of the Sea (3rd edn, Manchester University Press, Manchester, 1999) 214.

42 See art 17 (3) of Vienna Convention.

43 See 2008 Judgment, para 57.

44 ibid para 59.

45 See (n 1) 97.

46 On the international plane, it is possible to have three categories of instruments: i) treaties within the strict definition of the VCLT, ii) other binding agreements, such as informal or oral agreements and iii) non-binding instruments, such as political accords or gentlemen's agreements. See generally Fitzmaurice, M, ‘The Identification and Character of Treaties and Treaty Obligations between States in International Law’ 73 BYBIL (2002), 141Google Scholar. cf also art 2(1) of Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331 (hereinafter: VCLT).

47 See Case Concerning Maritime Delimitation and Territorial Questions (Qatar v Bahrain), ICJ Rep 1994 120. See also J Klabbers, The Concept of Treaty in International Law (Martinus Nijhoff, The Hague, 1996) 215.

48 See Temple of Preah Vihear case, (Cambodia v Thailand), Preliminary Objections, Judgment of 26 May 1961, ICJ Rep (1962) 31. See also the Aegean Continental Shelf Case (Greece v. Turkey) ICJ Rep (1978) 38–44.

49 Both the 1958 High Seas Convention and the LOSC contained the exception ‘where acts of interference derive from powers conferred by treaty’. cf the opinion of Sohn, who disputes whether informal agreements fall under the scope of article 110; LB Sohn, Cases and Materials on the Law of the Sea (Transnational Publishers, New York, 2004) 209.

50 See Report of the International Law Commission on the Work of its Fifty-third Session Regarding the Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN GAOR ILC 56th Session, Supp 10 at UN Doc. A/56/10 A (hereinafter: ILC Articles).

51 Art 20 sets forth that ‘consent by a State to particular conduct by another State precludes the wrongfulness of that act in relation to the consenting State, provided the consent is valid and to the extent that the conduct remains within the limits of the consent given’; see ILC Yearbook (2001-II) 173.

52 cf art 45 of the ILC Articles.

53 See (n 1) para 45.

54 See the United States Coast Guard, Guide to the Law of Boarding Operations, (June 2008) (on file with the author) and also ‘Le consensual boarding—Une évolution majeure du droit de la mer’, 7 Annuaire du droit de la mer (2002), 556.

55 In United States v Gonzalez, a conversation by telephone was held to constitute an ‘arrangement’ with another government; see Judge Kravitch, United States v Gonzalez, 776 F.2nd (11 Circuit, 1985) 936.

56 See 2008 Judgment, para 60 ff.

57 According to Thienel, this was implied by the question of the Judge Costa to the French Government during the oral pleadings, ie ‘if the legal basis claimed by the Government is the domestic Act giving effect to the UN Convention against Illicit Traffic (…), can this Act apply where the Convention does not?’; see (n 2).

58 See the relevant discussion in the context of the early cases before the US Courts in Stieb, J, ‘Survey of United States Jurisdiction over High Seas Narcotics Trafficking’ (1989) 19 Georgia Journal of International and Comparative Law 119Google Scholar.

59 See Amuur case (n 24) para 53.

60 See 2008 Judgment, para 60 ff.

61 See eg Lukanov v Bulgaria (1997) EHRR 1997-II, 543, para 41, Wassink v The Netherlands Series A No 185 (1990) para 24.

62 See (n 1) para 99.

63 See Joint Partly Dissenting Opinion of Judges Costa, Casadevall, Birsan, Garlicki, Hajiyev, Sikuta and Nicolaou, (n 1) para 7.

64 ibid para 100. cf the different opinion of Judges Costa et al;ibid para. 9.

65 See relevant analysis (n 58) and corresponding text.

66 For instance, should the 2005 Law have been applicable, it would probably have met these requirements; see (n 33).

67 See (n 1) para 101.

68 ‘Having regard to the gravity and enormity of the problem posed by illegal drug trafficking, developments in public international law which embraced the principle that all States have jurisdiction as an exception to the law of the flag State would be a significant step in the fight against illegal trade in narcotics. This would bring international law on drug trafficking into line with what has already existed for many years now in respect of piracy’; ibid.

69 For example, during the drafting of the ICC Statute, the participants debated but ultimately rejected a proposal to include drug trafficking in the Court's jurisdiction. See relevant analysis in Geraghty, A, ‘Universal Jurisdiction and Drug Trafficking’ (2004) 16 Florida Journal of International Law 387Google Scholar.

70 See also the Princeton Principles of Universal Jurisdiction (2001), which even though did not include drug trafficking in the list of relevant crimes, they leave the door open for such development (Principle No. 2).

71 See: inter alia M/V ‘SAIGA’ (No. 2) (Saint Vincent and the Grenadines v Guinea), ITLOS Judgment of 1 July 1999, para 156.

72 See inter alia Lowe, AV, ‘National Security and the Law of the Sea’ 17 (1991) Theasurus Acroasium 162Google Scholar.

73 In particular, it is averred that ‘[a]lthough the terms ‘territorial integrity’ and ‘political independence are generally not intended to restrict the scope of the prohibition of the use of force they lend an argument in favour of the widely accepted view that certain cases of the threat or use of force within the law of the sea are not comprised by article 2 (4)’; see Randelzhofer, ‘Art.2 (4)’ in B Simma (ed), The Charter of the United Nations. A Commentary (2nd edn, OUP, Oxford, 2002) 124.

74 See M/V SAIGA II, which expressed the view that ‘international law requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances’; (n 76) para 155. See also Award of the Arbitral Tribunal of 17 September 2007 (Guyana/Suriname); 148 and comments in Jimenez-Kwast, P, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorization of Forcible Action at Sea in the Light of Guyana/Suriname Award’ (2008) 13 Journal of Conflict & Security Law 88–89Google Scholar.

75 ‘When they boarded the Winner, the French commando team used their weapons to open certain locked doors. When a crew member of the Winner refused to obey their commands, a ‘warning shot’ was fired at the ground, but the bullet ricocheted and the crew member was wounded'; see (n 1) para 13.

76 See MV Saiga, (n 76) para 155 and also Corfu Channel Case (United Kingdom v Albania) Judgment of April 9 1949, ICJ Rep 1949 4, 22.

77 This might be the ground why the applicants in the Rigopoulos v Spain abstained from raising this issue; (n 8).

78 There was an exchange of fire between a Spanish warship and several members of the crew of a drug smuggling vessel Archangelos, who had barricaded themselves into the engine room; ibid.

79 See inter alia De Jong, Baljet and van den Brink Series A No 77 (1986) 8 EHRR 20, 25 para 52.

80 See TW v Malta (No 25644/94) (1999) 29 EHRR 185, para 42.

81 Brogan v UK Series A No 145 (1988) 11 EHRR 117, para 59.

82 In the Brogan v UK, detention period exceeding four days for terrorist suspects were found not to be compatible with the requirement of prompt judicial control; see ibid paras 60–62. See also the Aksoy v Turkey (1996) 23 EHRR 553.

83 See Rigopoulos v Spain (n 8) 9 (emphasis added).

84 See 2008 Judgment, para 68.

85 ibid.

86 SCB v United Kingdom, Judgment of 19 June 2001, para 22. See also Assenov and others v Bulgaria, (1998) EHHR-VIII 3264.

87 See also on this point the Partially Dissenting Opinion in the 2008 Judgment of the Judge Berro-Lefèvre, Lorenzen and Lazaraova Trajkovska.

88 See (n 1) para 107.

89 ibid para 111.

90 ibid para 127.

91 ibid para 128.

92 See (n 97) and also the Joint Partly Dissenting Opinion of Judges Tulkens, Bonello, Zupančič, Spielmann, Tsotsoria, Power and Poalelungi appended to the Grand Chamber Judgment, ibid.

93 ibid para 131.

94 ibid.

95 See 2008 Judgment, para 49.

96 See (n 1) para 81.

97 For similar considerations in respect of the problem of piracy off Somalia see Guilfoyle, D, ‘Counter-Piracy Law Enforcement and Human Rights’ (2010) 59 ICLQ 141CrossRefGoogle Scholar; E Papastavridis, ‘Piracy off Somalia: The Emperors and the Thieves of the Oceans in the 21st Century’ in A Abass (ed), Protecting Human Security in Africa (OUP, Oxford, 2010) (forthcoming).