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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
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