Strasbourg Observers

The issue of extraterritorial jurisdiction in the repatriation of children detained in Syrian camps: shortcomings in the ECtHR judgment in H.F. and Others v. France

November 01, 2022

By Sanna Mustasaari

The long-awaited Grand Chamber judgement in the case of H.F. and Others v. France addressed the refusal by France to repatriate the daughters and grandchildren of the applicants, all French nationals, from Syrian camps. The question of whether States should assume responsibility for their nationals, particularly children, who have been detained in horrific conditions in camps in north-eastern Syria, has been subject to heated and polarised public and legal debate and legal proceedings in Western courts. The main source of legal uncertainty in assessing the rights of the individuals in these camps and the corresponding obligations of their States of nationality are attributable to the fact that any obligation of a State to protect the human rights of an individual depends on establishing that the situation in question falls under the jurisdiction of the State. In this case, the Court unanimously declared the complaint under Article 3 inadmissible and held by a majority that there had been a violation of Article 3 § 2 Article 3 § 2 (P4) of Protocol 4, which enshrines the right to enter the territory of the State of one’s nationality. Furthermore, the Court held by a majority that the finding of a violation constituted sufficient just satisfaction, with Judges Ktistakis and Pavli dissenting on this point.

This contribution will focus on the reasoning of the Court regarding extraterritorial jurisdiction from the perspective of children’s rights in transnational settings, an issue to which the judgment may have broader significance. I argue that although the finding by the Court of a violation of the right to enter the State of one’s nationality is a welcome clarification of the rights of children in Syrian camps, the analysis of the jurisdiction with respect to Article 3 was inadequate as it bypassed important aspects such as the rights of the children to protection and the obligation to facilitate the return of trafficking victims without undue delay.

Summary of the judgment

According to the applicants, the decision made by the State not to repatriate exposed their family members to inhuman and degrading treatment prohibited by Article 3 of the Convention and breached their right to enter the territory of the State of their nationality as guaranteed by Article 3 § 2 of Protocol 4 (P4). The applicants further complained that they had no effective domestic remedy by which to challenge the decision.

The Court examined the issue of jurisdiction separately in relation to complaints under Article 3 and Article 3 § 2 (P4). On the basis of its well-established case law (e.g. M.N. and others v. Belgium; Catan and Others v. Moldova and Russia; Bankovic and Others v. Belgium and Others; Al Skeini and Others v. the United Kingdom), the Court noted that jurisdiction is primarily territorial. Only in exceptional circumstances may acts of States performed or producing effects outside their territories constitute an exercise of jurisdiction within the meaning of Article 1 ECHR. Firstly, the acts of diplomatic and consular agents who are present on foreign territory in accordance with the provisions of international law may amount to an exercise of jurisdiction when such agents exert authority and control over others. Secondly, the exercise of extraterritorial jurisdiction could be present when, through consent, invitation or acquiescence of the government of that territory, a State exercises all or some of the public powers normally exercised by that government. When in accordance with custom, treaty or other agreement, authorities of a State perform executive or judicial acts in the territory of another State, the State may be responsible for any breaches of the Convention thereby incurred, as long as the acts in question are attributable to it, not the territorial State.

In the case under comment, the Court considered the issue of jurisdiction in relation to Article 3 on the three following points: firstly, whether France exercised “control” over the area in which the applicants’ family members are being held (an issue which was not in dispute and to which the obvious answer was negative); secondly, whether a jurisdictional link could be derived from the opening of domestic proceedings; and thirdly, whether there were any connecting ties with the State (through nationality and diplomatic or consular jurisdiction) in respect of each of the provisions at stake. The Court concluded that the mere fact that domestic proceedings had been brought did not trigger an extraterritorial jurisdictional link between the applicants and the State and found no special procedural circumstances which would create a jurisdictional link under the Convention. It also dismissed the applicants’ argument that the nationality of their family members constituted a sufficient connection with France in order to establish a jurisdictional link between them and France. Moreover, the Court observed that neither domestic law nor international law requires the State to act on behalf of its nationals and repatriate them, and that the Convention does not guarantee the right to diplomatic or consular protection. As the mere operational capacity of the State to repatriate does not constitute a special feature capable of triggering an extraterritorial jurisdictional link. The Court concluded that the family members in question were not within France’s jurisdiction for the purposes of the Article 3 complaint.

Assessing for the first time the jurisdictional link between a State and its nationals in respect of Article 3 § 2 (P4), the Court stated that the fact that this provision only applies to nationals cannot be regarded as sufficient grounds for establishing the jurisdiction of a State within the meaning of Article 1, as this was not an ordinary case (such as policing the border or failing to issue travel documents). However, it stated that certain circumstances relating to the situation of individuals who wish to enter their State of nationality may give rise to a jurisdictional link with that State. In the present case, it was necessary to take into account, first, that the applicants had filed a number of official requests to the French authorities for repatriation and assistance; second, that those requests were made on the basis of the fundamental values of the democratic societies which make up the Council of Europe, while their family members were facing a real and immediate threat to their lives and physical well-being, and their children were extremely vulnerable; third, that the individuals concerned were not able to leave the camps and return to France without the assistance of the French authorities; and fourth, that the local authorities had indicated their willingness to hand over the individuals to the French authorities. On this basis, the Court found that a jurisdictional link existed between the applicants and France, as regards the complaint under Article 3 § 2 (P4). In their partly dissenting joint opinion, Judges Yudkivska, Wojtyczek and Roosma criticised the Court for giving too much weight to the capacity of the State regarding repatriation.

On the merits, the Court first found that while a general right to repatriation could not be derived from the right under Article 3 § 2 (P4) to enter national territory, the protection afforded by the provision might give rise to positive obligations of the State in exceptional circumstances. An independent body would need to review the lawfulness of a decision to deny a request for repatriation, whether the competent authority had merely refused to grant it or had been unsuccessful in any measures it had taken to act upon it. The Court concluded that the examination of the requests for repatriation made by the applicants on behalf of their family members had not been surrounded by appropriate safeguards against arbitrariness; consequently, there had been a violation.

In their joint concurring opinion, Judges Pavli and Schembri Orland, also echoed in other commentaries, accused the Court of proceduralism and of failing to establish the substantive nature of the violation of the right to enter national territory. Their particularly alarming observation is that the judgment may end up negatively impacting the protection afforded in Article 3 § 2 (P4) through the adoption of the arbitrariness standard. Consequently, what remains unanswered in the judgment is whether European States can choose to effectively exile their own nationals, even children, on the grounds that they or their parents or family members are suspected of involvement in terrorism. In limiting its review to one of safeguarding against procedural arbitrariness, the Court fell short of establishing the State’s substantive obligations to protect its under-age nationals by taking good faith measures to secure the termination of their situation of de facto exile.

An overtly narrow analysis on jurisdiction

The reasoning of the Court regarding jurisdiction prompts some questions, especially regarding the rights of the child and obligations stemming from other legal instruments. The analysis of the jurisdictional link between the State and the applicants’ family members, especially the children, appears too narrow as the jurisdictional test seems to exclude potentially important factors. In other words, the Court examined the impact of the proceedings in domestic courts in relation to criminal law (§§ 193–196), but completely bypassed any possible jurisdictional links created by other obligations of the State under national and international law relevant for the rights of children to be protected in cross-border settings.

Without any elaboration, the Court diverted from the approach adopted by other committees, including the Committee on the Rights of the Child, which found in 2020 that France exercised jurisdiction over the children detained in the camps in Syria as it had competence ratione personae over them. According to the Committee, since the State was aware of the situation and the extreme vulnerability of the children, and it had the capability and power to protect the rights of the children in question by taking measures to repatriate them or provide other consular responses, it in fact exercised jurisdiction over the children. The Committee later found a violation of the rights of the child victims under Articles 3 (primacy of the best interests of the child), 6 § 1 (right to life) and 37 (a) (prohibition of torture or other cruel, inhuman or degrading treatment or punishment) of the Convention on the Rights of the Child (CRC). On 7 October 2022, in a similar case against Finland, the Committee found a violation under Articles 6 § 1 and 37 (a), even though Finland had taken the principled decision to repatriate Finnish children and their mothers, and claimed that failures to repatriate in these individual cases were due to the practical difficulties in the process, which were beyond its control.

In addition to the CRC, Article 16 of the Council of Europe Convention on Action against Trafficking in Human Beings, as noted in the judgment itself, requires States to facilitate the return of trafficking victims without undue or unreasonable delay, a context of relevance in these camps. It is puzzling that the Court did not elaborate on whether and in which circumstances these obligations on States to act would assume relevance for jurisdiction in the meaning of Article 1 and in relation to Article 3 ECHR.

Beyond the issue of bypassing relevant provisions of international law, the argumentation of the Court in relation to Article 3 ECHR compared to its argumentation in relation to Article 3 § 2 (P4) appears questionable and incoherent, even if one accepts the two justifications for the different approach. The first of these justifications is of course that Article 3 and Article 3 § 2 (P4) are different precisely in that the latter explicitly refers to an extraterritorial situation, that of a national abroad trying to enter the State. In fact, the capacity of a State to act is often extremely difficult to assess, as the circumstances in the field may change rapidly. The second justification refers to the inadequacies of an approach that would base the extraterritorial jurisdiction of the State merely on its (assessed or assumed) capacity to act. Nevertheless, the reasoning of the Court is unclear as to why the weight afforded by the Court to certain exceptional circumstances in relation to 3 § 2 (P4) would not be relevant to the examination of the jurisdictional link regarding Article 3, especially if the requirements to act imposed on States under other provisions of international law are given due consideration. This critique is in line with proposals that promote a more functional approach to the issue of jurisdiction, which the Court unfortunately rejected.

Finally, I have argued elsewhere that national child protection and welfare legislation (read together with the 1996 Hague Child Protection Convention and Brussels IIa Regulation) may result in obligations for States to take measures to repatriate the children in Syrian camps. One would have hoped that when laying down the legal and theoretical premises of extraterritorial jurisdiction, the Court would have thoroughly investigated the national, international and regional rules regarding the State’s obligations and jurisdiction in cross-border child protection cases to see whether a jurisdictional link could have been established through this context. The fact that aspects relevant to cross-border child protection were completely bypassed in this judgment may, of course, be merely attributable to French child protection provisions. However, the judgment may also reflect an unfounded intellectual gap between public and private international law. Such a gap, should it exist, would be most regrettable because it would inhibit the integration of these branches of international law and consequently retard the development of rules, procedures and practices to address legal vacuums and protect children in difficult cross-border situations.


The judgment is urgent to individuals who remain in the horrific conditions in Syrian camps and who are subject to gross violations of their rights. The Court called on France to promptly re-examine the applicants’ requests and afford them appropriate safeguards against any arbitrariness. The hardships faced by children and the corresponding obligations of States to take measures to protect them are recognised with considerable variation between international bodies, as demonstrated by the differing approaches of the Court and the Committee on the Rights of the Child. This poses a significant challenge to the coherence of international human rights law. The judgment demonstrates that the concept of extraterritorial jurisdiction is a delicate matter, as it is complex, difficult to determine and subject to struggles. The Court operates in a challenging legal and political environment, which makes it difficult to adopt progressive interpretations, especially in politically controversial matters. The shortcomings of the analysis of jurisdiction in this case are particularly regrettable, as the case could have been significantly more relevant to children’s rights to receive protection in transnational settings. Some, albeit only modest, hope can be seen in the Court’s call for States to give due consideration to the vulnerable situation of children when they make decisions about assisting them abroad.

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