62 HASSAN v. THE UNITED KINGDOM JUDGMENT – SEPARATE OPINION above, §142) that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “Convention legal space”. However, the Court explicitly emphasized that the “importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States”. The Court declared that it had not “in its case-law applied any such restriction”, referring amongst other examples to the above-cited cases of Öcalan, Issa, Al-Saadoon and Mufdhi and Medvedyev. Moreover, it is to no avail for the Member States to rely on the above-cited Grand Chamber decision in Bankovič and Others, at least in situations where extra-territorial jurisdiction during international armed conflict is based on State agents’ authority and control in the form of the arrest and detention of an individual, as in the present case, a factual setting that is materially different from that with which the Court was confronted in Bankovič and Others (cited above). In this regard, I would recall that the United Kingdom itself, along with other Governments, argued explicitly in the Bankovič case (see § 37) that the arrest and detention of the applicants outside the territory of the respondent State, as described in the admissibility decisions in the Issa and Öcalan cases (Issa and Others v. Turkey, (dec.), no. 31821/96, 30 May 2000, and Öcalan v. Turkey (dec.), no. 46221/99, 14 December 2000) constituted, according to the Governments, “a classic exercise of such legal authority or jurisdiction over those persons by military forces on foreign soil”. That is exactly the situation in the present case, a situation that, as the United Kingdom argued before this Court just under two years before the start of the Iraq war, would fall clearly within its extra-territorial jurisdiction under Article 1 of the Convention. 13. Secondly, the subsequent practice rule of Article 31 § 3 (b) of the Vienna Convention has to date been applied by the Court in several cases of central importance to the protection of human rights, namely the abolition of the death penalty (see Soering v. the United Kingdom, no. 14038/88, 7 July 1989, §§ 102-103, and Al-Saadoon and Mufdi v. the United Kingdom, cited above, § 120), the binding nature of interim measures and the validity of reservations entered by States. Beyond these literal uses, Article 31 § 3 (b) has also found expression in the Court’s characterization of the Convention as a “living instrument” (see Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights, Oxford University Press, Oxford 2010, at p. 38). However, the Court has, for obvious reasons, been rather cautious in its application of the subsequent practice rule, as Article 31 § 3 (b) of the Vienna Convention must be