155. Article 15 accordingly permits a state, within defined limits, to derogate from its obligations under the Convention “in time of war or other public emergency threatening the life of the nation.” This wording, however, (in particular the word “other”) tends to suggest that Article 15 was not intended to apply to a war overseas which does not threaten the life of the nation. That is no doubt because those who drafted the Convention did not envisage that a state’s jurisdiction under Article 1 would extend to acts done outside its territory. Now that the Convention has been interpreted, however, as having such extraterritorial effect, it seems to me that Article 15 must be interpreted in a way which reflects this. It cannot be right to interpret jurisdiction under Article 1 as encompassing the exercise of power and control by a state on the territory of another state, as the European Court did in the Al-Skeini case, unless at the same time Article 15 is interpreted in a way which is consonant with that position and permits derogation to the extent that it is strictly required by the exigencies of the situation.
Recall also the pending ECtHR Hassan overseas chinese in canada datacase, where the Court may pronounce itself on extraterritorial derogations. I would only part ways with the judge when he says that the drafters of the Convention did not envisage extraterritorial Article 1 jurisdiction, since we really have absolutely no idea what the drafters of the Convention wanted or intended.
(3) The detention of SM by UK forces in Afghanistan was attributable to the United Kingdom, and not to the UN (para. 158 ff). Here we have an extended discussion of the Behrami and Saramati and Al-Jedda attribution saga. While the judge thought that the distinguishing in Al-Jedda between the situations in Iraq and Kosovo was not wholly persuasive, and while he did not reject Behrami outright (which I think he could and should have done), he considered that:
178. In these circumstances, although I do not find the question easy, I consider that the UN Security Council has “effective control” (and “ultimate authority and control”) over ISAF in the sense required to enable conduct of ISAF to be attributed to the UN. Thus, if the detention of SM had been authorised by COMISAF (in the way that COMKFOR authorised the detention of Mr Saramati) and a claim had been brought against the state from whose armed forces COMISAF was drawn on the basis that that state was in breach of Article 5 of the Convention, I would expect the European Court to hold that the detention was not attributable to the respondent state, applying the same analysis as it did in the Behrami and Saramati cases. (I am assuming for the purpose of this hypothetical case that COMISAF at the relevant time was an officer in the armed forces of a state which is a contracting party to the Convention.)
However, that notwithstanding, SM’s detention was still attributable to the UK because it was ordered not by the ISAF commander, but by UK commanders and ministers (para. 185), hence: