Carmelo Danisi, Research fellow – University of Sussex and Adjunct Professor of PIL – University of Bologna

A long awaited decision of the European Court of Human Rights (ECtHR), one that will be discussed for long (see already here, here and here), has not disappointed all the European governments whose efforts are aimed to strengthen border controls on migrants, including asylum claimants. With the decision in the case of M.N. and Others v. Belgium (no. 3599/18), the ECtHR has adopted a self-restraint approach that creates an additional obstacle for those asylum claimants who would rely on international human rights law obligations as the only possible way of avoiding dangerous, sometimes deadly, journeys in order to submit an asylum application in Europe. The ECtHR concluded that States Parties to the European Convention on Human Rights (ECHR) do not have any obligation to issue humanitarian visas because the ECHR does not apply in the context of proceedings initiated by individuals through diplomatic representations of a State Party, with which such individuals have no connecting ties like nationality or which does not exercise any sort of physical control (more generally on Article 1 ECHR, see Besson and Milanovic). Whereas some readers may find it unsurprising, in light of recent case law (e.g. Grand Chamber, N.D. and N.T. v. Spain, nos. 8675/15 and 8697/15; and Ilias and Ahmed v. Hungary, no. 47287/15) as well as the CJEU’s findings on the same matter from a EU law perspective (X and X v. Belgium, C-638/16 PPU), other readers may qualify the ECtHR’s approach based on the lack of jurisdiction as ‘formalist’ or ‘ineffective’. This is particularly the case when the reasoning adopted by the ECtHR is compared with recent developments occurred not only within its case law but also with positions adopted by universal human rights bodies attempting to expand the applicability of human rights treaties, including via a ‘non-formalistic’ approach (Committee on the Elimination of Racial Discrimination, 12 December 2019, no. CERD/C/100/5, para. 3.44). 

Lack of protection for lack of jurisdiction under the ECHR  

When on 20 November 2018 the Court’s Chamber (Second Section) relinquished jurisdiction to the Grand Chamber, there was a heightened expectation that the case M.N. and Others v. Belgium could be a turning point in the protection of most asylum claimants headed to Europe. The significant number of States Parties submitting third-party comments signalled an equally increased concern that, perhaps owing to the particular condition of the applicants, the ECtHR could really derive from the Convention another obligation to prevent directly or indirectly human rights violations in the ‘sensitive’ area of migration and border control. In fact, the applicants – a married couple and two children living in Aleppo, Syria – applied for humanitarian visas at the Belgian Embassy in Beirut in an attempt to flee the situation of «absolute emergency» created by the armed conflict in Syria. These visas were specifically intended to enable them to enter and reside legally in Belgium for the period required to make a formal asylum claim, thus avoiding both dangerous routes to, and irregular entry into, Europe. According to the Belgian Aliens Office, which rejected the applicants’ request, «granting a visa on humanitarian grounds to an individual who intended to apply for asylum in Belgium would (…) create a precedent which would derogate dangerously from the exceptional nature of the procedure for short-stay visas» (para. 12 of the ECtHR’s decision). The request was made under Article 25 of the Community Code on Visas (Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009), whose aim is to grant visas only to people who, after entering a Member State for one of specific list of reasons, had no intention of settling there permanently. This could not be the case for the applicants who were forced to seek international protection to build a new life in Europe. Despite the adoption of subsequent diverging decisions, with the Aliens Appeals Board ordering the Belgian authorities to issue visas or laissez-passers as confirmed by the Brussels Court of Appeals, the applicants were eventually denied legal entry in Belgium. During the range of internal proceedings, the Aliens Office gave voice to the underlying fear of «opening the flood» if a positive decision were adopted. The Belgian asylum authorities clearly stated that Article 3 ECHR cannot be interpreted as requiring States Parties to grant «entry to all persons living in catastrophic situations», because «the risk of requiring the developed countries to accept entire populations from the developing world, countries at war or those ravaged by natural disasters» (para. 19 of the ECtHR’s decision) is too high.

The Court did not disappoint States Parties and protected them from such an (unverified) risk. In fact, it ultimately agreed with the respondent Government by stating that the complaints of the applicants, according to which the Belgian authorities’ refusal to issue them humanitarian visas had exposed them to a violation of Articles 3 and 13 ECHR, are inadmissible. Mr. M.N. and his family did not fall within Belgium’s jurisdiction as provided by Article 1 ECHR. In agreement with Belgium, such a case did not justify exceptions to the general rules on States’ jurisdiction that, as supported also by the travaux préparatoires of the Convention (see para. 100 of the decision), is essentially based on a ‘territorial’ concept. Most importantly, although a public power was exercised, for the ECtHR it could not be said that Belgian officials had effective control or authority over the applicants. Moreover, even if the decision denying the entry had an impact on their situation in Lebanon or Syria, this effect cannot be sufficient to establish the jurisdiction over the claimants situated outside Belgium’s territory. No other particular link, for instance in terms of nationality or pre-existing family or private ties with Belgium, was found between the applicants and the respondent State. Consequently, despite the exceptional broader interpretations of Article 1 ECHR adopted by the Court in its case law (e.g. Grand Chamber, Al-Skeini and Others v. the United Kingdom, no. 55721/07), as Belgium and all intervening third-party States argued, a positive finding on the matter of jurisdiction in a migration case involving embassies would imply the risk of a ‘not agreed’ sort of universal application of the ECHR. In fact, in contrast to what the applicants argued, accepting that a jurisdictional link exists between the applicants and Belgium would be equal to accepting that any individual might ‘self’-generate such a connection by submitting an immigration-related request from anywhere around the globe. At least indirectly, the ECtHR also rejected the idea that such a jurisdictional link can be established by resorting to positive obligations that arise under the ECHR in order to ensure the prevention of violation of the rights protected by it. The reason for this approach lies primarily on its, expected but unquestioned, consequence. Such an interpretation would nullify States’ right under international law to control their borders by imposing «an unlimited obligation on the States Parties» to authorise entry to their territory to everyone who might be expose to torture everywhere in the world (para. 124 of the decision). 

In sum, the ECtHR confirmed that the case of the applicants in M.N. and Others was different from situations where it had found that acts of the States Parties that performed or produced effects outside their territories constituted an exercise of jurisdiction according to Article 1 ECHR, as an exception to the principle of territoriality (for a recap, also Grand Chamber, Güzelyurtlu and Others v. Cyprus and Turkey, no. 36925/07, para. 178 and ff). For example, although the Belgian authorities exercised their public authority in deciding whether the applicants could enter in Belgium, thus producing as such extraterritorial effects, it cannot be said that Belgian authorities exercised any kind of control in Syrian or Lebanese territory. The applicants’ situation was also very different from all previous cases of expulsions that triggered the jurisdiction under Article 1 ECHR because the State Party in question effectively exercised authority or control over the concerned applicants. This is demonstrated – the Court alleged – by the fact that Mr. M.N. and his family were free to enter to and leave the Belgian Embassy in Beirut as they wished, and also by the fact that it was not Belgium that initiated the relevant (administrative and judicial) proceedings thus creating a sort of jurisdictional link of a procedural nature.

Any possible different approach to jurisdiction? 

Would a more radical approach been possible, albeit with risks for the ECtHR to be strongly criticised by some States Parties? To use the wording of a recent position adopted by the Committee on the Elimination of Racial Discrimination, sometimes «given the particular nature» of some rights, responses to ensure their observance may require a «non-formalistic approach» (para. 3.44 of the Committee decision no. CERD/C/100/5, above). What would such a non-formalistic approach have meant for the ECtHR in M.N. and Others? In brief, it would have led the Court to question the territorial notion of jurisdiction in international human rights (and refugee) law as a strong reflection of the structure of the international order based on sovereign States, rather than being framed around individual protection needs. This would have required the ECtHR to emphasise the obligations that States Parties have undertaken under the ECHR, also in terms of positive obligations to protect and prevent against harm caused by external sources, when their exercise authority in denying entry to aliens. Such an approach would have equally stressed the particular nature of the prohibition of torture and the principle of non-refoulement, even in terms of peremptory norms of international law. Finally, it would have meant to underline the specificity of international human rights law within international law and to attribute a strong weight to its role as a human rights Court in charge of the supervision of the ECHR. All these factors considered, the justification for such an approach would have been the unquestionable fact that any other solutions, including the one adopted by the ECtHR, have the effect of absolving State Parties from their duty to ensure compliance with the ECHR. As some scholars might reasonably point out, this more radical approach would probably create a huge gap between what is arguable under international law and what is desirable from a human rights perspective, especially if it would eventually endanger «the international human rights law’s capacity to protect».

Yet, some room for discussion remains if we pay attention to a single specific aspect. It is evident that all States participating, directly or indirectly, in the case were particularly worried about the consequences of the ECtHR’s decision on their sovereign power to control immigration as well as on the extension of the notion of jurisdiction beyond physical, spatial or personal, control. As such, strategically, in their arguments before the Court, intervening States did not pay attention to the specific circumstances of the applicants. As the Court overall confirmed, they remembered that all previous exceptional positive findings on extraterritorial jurisdiction in the ECtHR’s case law were based on grounds of the «specific factual circumstances of each case». Could the ECtHR have relied on the specific facts in M.N. and Others to reach a different decision given the particular nature of the right protected through Article 3 ECHR? 

Such a conclusion would have been supported by some of the developments occurred in the ECtHR’s case law after the well-known judgment in the Hirsi case (no. 27765/09). The Court has often read the Convention in a way that has guaranteed rights that are practical and effective, starting from the interpretation of the notion of jurisdiction, the duty to prevent indirect violations of human rights in third States and the obligation of individualised assessments. Leaving a comprehensive analysis of this case law to a longer contribution, at least two recent useful judgments may be recalled. Despite the evident attempt to distinguish M.N. and Others from previous migration cases (see para. 120 of the decision), in N.D. and N.T. v. Spain (nos. 8675/15 and 8697/15, above) the Grand Chamber seemed somehow open to bring migrants, who have tried to pursue the legally available channels to be admitted in a State Party through its diplomatic representations, into the jurisdiction of the State in question. In another interesting case (M.A. and Others v. Lithuania, no. 59793/17, para. 70), the Court also seemed open to new facets of the notion of jurisdiction when it decided to analyse the merits of a situation in which national authorities have not admitted aliens at the borders on grounds that decisions refusing entry were «imputable to Lithuania and thereby fell within its jurisdiction». Significantly, by looking at the particular condition of the applicants – a family with children from Chechnya, the Court recalled that, when aliens intend to submit an asylum claim, States Parties bear the responsibility for protecting them also against indirect violations of Article 3 by ensuring an assessment of the relevant risks – if removed or non-admitted – especially in countries that are not Parties to the ECHR. In other words, the combination of the particular situation of Mr. M.N. submitting a visa request at an embassy for his family with children, the decision of non-admission by national authorities as an element of governmental authority despite the risk to expose them – directly or indirectly – to treatment prohibited by Article 3 ECHR and the lack of individualised assessment despite their asylum intentions, could have been used to bring the applicants’ situation within the ‘control’ of the Belgian State, thus ensuring the application of the ECHR.

To this end, useful insights could have also come from developments occurring within other regional, i.e. the Inter-American, and universal human rights protection systems. Focusing the attention here on the latter, these developments include the recent interpretation of the right to life, as protected by Article 6 ICCPR, provided by the Human Rights Committee (HRC) in its General Comment no. 36. The parallel is justified by the equal non-derogable nature of both the right to life, on one hand, and the prohibition of torture and the related principle of non-refoulement, on the other hand. As analysed elsewhere, in that General Comment, the HRC states that States Parties may have jurisdiction on «persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner» (para. 63, emphasis added). Taking into account that, in relation to these people, the HRC refers both to the exercise of States’ power (as opposed to ‘effective control’ by the use of ‘or’) and to all ‘activities across’ the General Comment, the application of this reasoning in the area of asylum cannot be excluded a priori. In fact, as the HRC points out, the duty to protect life requires each State to ensure that ‘all activities’ taking place «in whole or in part within their territory and in other places subject to their jurisdiction, but having a direct and reasonably foreseeable impact on the right to life of individuals outside their territory» (para. 22, emphasis added), are consistent with Article 6 ICCPR. In other words, it can be argued that, when an individual submits a request for a humanitarian visa or an asylum claim at a diplomatic representation, which exercises a governmental function, in some specific circumstances the State Party in question becomes aware of a situation that may be expected to cause the individual’s unnatural or premature death unless it intervenes to prevent such death. This «foreseeable and preventable life-terminating harm or injury» emphasised by the HRC across the entire General Comment, in combination with the exercise of power via the adoption of decisions denying entry that generates the needed impact, seems to create the necessary jurisdictional link to have the ICCPR applied even in the context of visa requests if these may prevent a premature death. A similar reasoning may be followed from the perspective of Article 3 ECHR. When States Parties receive a request for a humanitarian visa in their diplomatic representations, they may become aware of a foreseeable and preventable torture or inhuman or degrading treatment if such risk emerges prima facie from the specific factual circumstances of the applicant(s) in question. As a result, rather than leading to a ‘universal application’ of the ECHR as it was argued in M.N. and Others, such a request may bring a situation under the jurisdiction of the States Parties in a limited range of cases. This can occur when specific personal circumstances, which may even be restricted to specific situations to be proved, such as exposure to specific war activities or the involvement of children in deadly contexts, let a State Party foresee an inevitable torture or inhuman or degrading treatment as a result of its inaction. Only in such factual circumstances, which require a case-by-case analysis instead of a priori lack of jurisdiction, would States Parties exercise authority over future asylum claimants by deciding whether or not to admit them to their territory, as the HRC seems to suggest. Such an approach would be more in line with a reading of human rights treaties in light of their primary aim, as Article 31 of the Vienna Convention on the Law of the Treaties reminds us. It could also benefit from tests already elaborated by the same ECtHR to restrict the extent of positive obligations of States Parties. An example may be the test developed in cases of removals of aliens close to death with no prospect of access to adequate care assistance (see recently Savran v. Denmark, no. 57467/15 and, for an analysis of key cases, here).

A position difficult to be revised for the foreseeable future

The position of the ECtHR and the interpretation of Article 1 ECHR that emerged in M.N. and Others is unlikely to be revised in the immediate future. Even the efforts put into pending applications that question the compliance with the ECHR of the pull-back operations of migrants in the Mediterranean (e.g. S.S. v. Italy, pending) now face a serious risk of failure. Unless the specific circumstances of each case are seriously taken into account, those pending applications may not achieve the expected change in the understanding of jurisdiction as primarily based on the exercise of sovereign powers having extraterritorial effects rather than on physical control. For sure, the ECtHR’s inadmissibility decision in M.N. and Others v. Belgium leaves open more questions than it tries to answer. It remains unclear why the ECtHR chose to focus on general considerations based on migration, in conjunction with diplomatic premises, rather than placing specific attention on the factual circumstances of the case. The joint consideration of the exercise of public powers by the respondent State and the lack of safe channels as decided by the same State could have certainly been of use in this respect. It is equally unclear why a case-by-case analysis would not be more effective and practical to balance, on one hand, the States Parties’ interests to maintain their sovereign powers to control migration and, on the other hand, the interests of individuals to avoid deadly routes to Europe. This more balanced approach would have also allowed the ECtHR to bring in considerations based on the principle of the best interests of the child, which is totally absent in the ECtHR’s decision despite the involvement of children in the M.N. and Others case. More generally, it remains unclear whether the exercise of public powers over aliens is no longer be able to trigger jurisdiction under the ECHR unless it is not connected with any sort of essentially physical, personal or spatial, control or if such an interpretation would apply only in relation to migration and asylum cases, something difficult to be justified. In short, was this decision really a way to protect a «well-established principle of public international law» (i.e. the right of States Parties «to control the entry, residence and expulsion of aliens», para. 124 of the decision) or was it rather a way of saving the Court’s reputation before European States increasingly interested in implementing sovereignty-based agendas? In this respect, the ECtHR certainly satisfied those who raise the irrational fear of a ‘flood’ of requests via IHRL obligations in the area of humanitarian visas. It certainly agreed with States Parties in avoiding the risk of introducing undemonstrated «factors of disorder and instability» (para. 90 of the decision). Asylum claimants forced to entrust their lives in the hands of smugglers, or – worse – of traffickers of human beings, will in contrast wonder whether the European Court is still a human rights Court. Again, the last word on opening legal channels to access asylum procedures in Europe is therefore to be found in European Governments’ political agendas, certainly not in the European frameworks of human rights protection.