The Borders of Legal Orders: Challenging Exclusion of Foreigners

10 July 2002

Elspeth Guild1


Central to the definition of sovereignty which aligns identities, borders and legal orders into independent states is the mediation of supra-national commitments through national interpretations of rights and obligations. The claims to control over the border of legal orders for the purpose of rights and duties by, on the one hand, the national level of member States of the Council of Europe and, on the other hand, the supra-national level interpreted by the European Court of Human Rights have changed significantly with two recent judgments of the Court, both relating to duties of states to non-nationals. In this article, I will look at some of the issues which these two cases raise about the nature of legal borders as regards foreigners. I will conclude with some observations about the role of foreigners in reconfiguring the extent of law and the legal duties of states towards aliens.

The two decisions are: (1) Čonka v Belgium judgment of the Court of February 5, 2002 (hereafter "judgment");2 and (2) the admissibility decision Banković et al. v Belgium et al. of December 19, 2001. There is much to be said about both judgments, but here I will limit myself to some specific issues relating to the changing nature of the human rights duties of states parties to the European Convention on Human Rights to foreigners: in the one case, when they are on the territory of the member State; in the other case, when the forces of the member State are acting on the territory where the foreigner lives.

Čonka v Belgium

The Čonka family are Roma of Slovak nationality. They applied for asylum in Belgium in November 1998 on account of their fear of persecution in Slovakia by skinheads and others against which aggression the Slovak state (in the form of the police) was not affording them protection. Their applications were rejected in a summary proceeding and they were ordered to leave Belgium, which they did not do. Various appeal procedures were pursued without success. At the end of September 1999, the Belgian police sent the family a notice requiring them to attend at the police station on a given date to enable the files concerning their applications for asylum to be completed. When they did so, they were served with expulsion notices and protocols indicating that they would be detained for the purpose of expulsion. Six days later, they were expelled via a military airport, their seat numbers marked on their hands with ballpoint pen. I have left out a number of facts about attempts to make use of appeal procedures which would be relevant to some of the findings of the Court and am sticking rather to the facts which are central to my issue: the borders of legal orders.

The Čonka family brought a complaint to the European Court of Human Rights claiming breaches of Article 5(1) of the European Convention on Human Rights (ECHR) – the right to liberty and security of the person; Article 5(2) ECHR – the right to be informed on arrest of the reasons and charges on which the arrest is based; Article 5(4) ECHR –the right of persons arrested to take proceedings to challenge the lawfulness of the detention; Article 4 Protocol 4 ECHR – the prohibition on collective expulsion of aliens; Article 13 in conjunction with Article 3 ECHR – the right to an effective remedy against torture, inhuman or degrading treatment or punishment; Article 13 in conjunction with Article 4 Protocol 4 ECHR – an effective remedy against collective expulsion of aliens. Complaints for violations of Article 14 (discrimination in the enjoyment of a Convention right) and Article 8 (the non-interference with private and family life) were also pleaded but were not considered by the Court in its judgement.

For my purposes, the critical complaint is that on the basis of Article 5(1), liberty of the person. This is because the finding of the Court on this point will be important to the rights of aliens to due process, even where they are illegally present on the territory. Article 5(1) sets out the right that no one shall be deprived of his or her liberty except in accordance with the exceptions which follow and which are 6 in number. The sixth is relevant to the position of the Čonka family as it provides member States with an exception to the duty of liberty of the person in the case of "the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

The European Court of Human Rights held unanimously that Belgium had breached Article 5(1) in respect of the detention of the Čonka family between 29 September and 6 October 1999. Why, when states are specifically given the power to detain foreigners for the purpose of expelling them, was Belgium held, unanimously, to have violated Article 5(1) on liberty of the person? It is the way the Court answers this question which has transformed the borders of law in the Council of Europe member States. It is agreed by all the parties that the family was detained for the purpose of expelling them from Belgium. Although the family argued that their detention was not necessary for the purpose of expelling them from Belgium, the Court noted that Article 5(1)(f) "does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing." (judgment paragraph 38). As the Court notes itself, in respect of this provision, what the ECHR is seeking is to ensure the substantive and procedural respect for national rules and that the deprivation of liberty should be in keeping with the purpose of Article 5 "namely to protect the individual from arbitrariness" (judgment paragraph 39). In other words, detention of aliens in order to expel them is specifically permitted by the ECHR. The only limitation is that the state must not act in an arbitrary manner in so detaining them.

The question thus begins to take form as one regarding abuse of power. Here the wording of the notice calling the Čonka family for interview to "enable the file concerning their application for asylum to be completed" becomes central. The Belgian Government considered the wording "unfortunate" but consistent with the objective of Article 5(1)(f). The Court noted that the wording was not unfortunate at all but chosen deliberately to secure the compliance of the largest possible number of recipients (judgment paragraph 41). Here the Court comes to the main point: "In the Court's view, the requirement [of a narrow interpretation of the exceptions] must also be reflected in the reliability of communications such as those sent to the applicants, irrespective of whether the recipients are lawfully present in the country or not. It follows that, even as regards overstayers, a conscious decision by the authorities to facilitate or improve the effectiveness of a planned operation for the expulsion of aliens by misleading them about the purpose of a notice so as to make it easier to deprive them of their liberty is not compatible with Article 5" (judgment paragraph 42). The Court then turns to the question of the possibility of a remedy under the circumstances and finds that in light of the deception and failure of effective means to challenge the detention, Belgium had breached Article 5(1).

The Čonka family were foreigners in Belgium. They were illegally present in Belgium. The Belgian authorities sought to detain them for the purpose of expelling them to their country of origin. However, in so doing, the Court has found that the state owes them a duty of good faith. Indeed, the Court specifically explains that the duty of good faith may be wider as regards illegally present foreigners than as regards criminal activity: "Although the Court by no means excludes its being legitimate for the police to use stratagems in order, for instance, to counter criminal activities more effectively, acts whereby the authorities seek to gain the trust of asylum seekers with a view to arresting and subsequently deporting them may be found to contravene the general principles stated or implicit in the Convention" (judgment paragraph 41). The mixing of immigration and criminal law is common in many European states, Belgium included. Belgian law provides that foreigners who do not leave the territory when ordered to do so commit a criminal offence. As the Court reviewed relevant national law in its decision, it is well aware that under Belgian law, failed asylum seekers who have been ordered to leave the territory and have not done so are in fact committing a criminal offence. Thus the argument, whether actually put or implicit, that the Čonka family were in fact committing criminal offences and thus that the use of stratagems against them is justified, is untenable. The result is rather that the border of the duty of good faith has been changed.

The obligation of states to act in good faith towards the citizen is one of the principles of governance central to constitutional settlements. However, to the extent that the state owes any duty of good faith to foreigners, in Europe this duty has until now gone no farther than the protection of those lawfully on the territory and the more general duties to protect the integrity of the person (i.e., Articles 2 and 3, on the right to life and the right to freedom from torture or inhuman or degrading treatment or punishment respectively). Through the general principles of the Convention, the Court now finds that illegally present aliens are entitled to reliability in communications with the state. State actors are not entitled to treat them as criminals, nor are they entitled to use deception to facilitate their detention and expulsion. Respect for the individual is central, irrespective of national rules on legal/illegal presence. The right of the state to define who is lawfully present and who is unlawfully on the territory does not change the nature of the duty of good faith of the state authorities with the individual. While the Court does not question whether there is unacceptable arbitrariness at the heart of the definition of legal versus illegal presence, it does limit the consequences of that definition as regards interaction with the state. So far I have looked at how the Court has redefined the borders of official action as regards those illegally present within the territory: these persons have become visible in law as the holders of a right to reliable communication. Arbitrary action is no longer permitted against them on the grounds of their legal invisibility. I will now turn to another group of foreigners, those lawfully on their own territory whose legal invisibility is related to military action by member States against their country.

Case note: Čonka v Belgium - Inroads into Fortress Europe?

Gloria Jean Garland1

In order to prevail on a claim that a member state has violated a substantive provision of the European Convention of Human Rights, the applicant must normally show "beyond a reasonable doubt" that the violation occurred.2 This very high burden of proof has posed difficulties for applicants, who are often not able to marshall the amount of evidence necessary to meet the burden - particularly where much of the available evidence is in the state's control. But the Court appears to have reconsidered this standard of proof in some instances, in particular with respect to collective expulsions of aliens by member states.

The European Court of Human Rights on February 5, 2002, issued a landmark decision in the case of Čonka v Belgium involving the application of Article 4 of Protocol No. 4, collective expulsion of aliens. In brief, the applicants were a part of a group of Slovak Roma who were seeking asylum in Belgium. They reported to the police station on October 1, 1999, in response to a notice stating that their attendance was required in order to complete their asylum application files. Instead, upon arrival at the police station, they were given an order to leave the country and held in a detention center until their deportation en masse from Brussels on October 5, 1999. This brief comment will focus on the Court's ruling with respect to Protocol 4, Article 4, and the implication of that decision that the burden of proving the lawfulness of expulsion procedures rests with the state.

Article 4, Protocol 4 states: "Collective expulsion of aliens is prohibited." In an unpublished decision, Andrić v Sweden,3 the Court held that there was no collective expulsion when an alien's immigration status is individually and objectively examined in a way that permits him or her to put forward a case against expulsion. Thus, collective expulsion "is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group."4 In the Čonka case, the government argued that the applicants' asylum claims had been denied based upon an examination of their personal circumstances. Nonetheless, the Court held that the background of the execution of expulsion orders, and not only the fact that individual decisions were made at some point, is relevant to determining whether authorities have complied with the Convention. The Court went on to find that:

"[Given the facts of this case] . . . and in view of the large number of persons of the same origin who suffered the same fate as the applicants, the Court considers that the procedure followed did not enable it to eliminate all doubt that the expulsion might have been collective . . . [Therefore] . . . there has been a violation of Article 4 of Protocol No. 4"5

The clear implication of this language is that, upon the showing of an arguable claim that a collective expulsion has occurred, the state then bears the burden of demonstrating that the expulsion was not collective. Because the procedure involved did not enable the Court to "eliminate all doubt that the expulsions might have been collective," the government was found to have violated the Convention.

The implications of this decision are encouraging. The Court has, correctly, put the burden of proving that the "personal circumstances of each of those concerned had been genuinely and individually taken into account" on the state, where it belongs.


1 Gloria Jean Garland is Legal Director of the ERRC.
2 See, e.g., Velikova v Bulgaria, 18 May, 2000, paragraph 94.
3 Case No. 4591/99, [Section 1] 23.02.99.
4 Conka v Belgium, 5 February 2002, paragraph 59.
5 Ibid, paragraph 61.

Banković et al. v Belgium et al.

On 23 April 1999 NATO planes bombed the Radio Televizije Srbije (Radio-Television Serbia) headquarters in Belgrade. The context of the attack was the bombing campaign commenced by NATO against the Federal Republic of Yugoslavia in respect of the failure to reach agreement on Kosovo. The applicants were family members of persons who were killed or seriously injured in the air strike who brought complaints to the European Court of Human Rights both on behalf of their deceased family members and themselves. They claimed breaches of three Convention Articles: Article 2 ECHR – the right to life; Article 10 ECHR – the right to freedom of expression; Article 13 ECHR – the right to an effective remedy in respect of the other two breaches. The complaints were brought against all the 17 NATO members which are also Council of Europe Member States.

The first and most central issue to the case is the question of jurisdiction: does the European Court of Human Rights have jurisdiction over the events in question, bearing in mind that they took place outside the borders of the member States of the Council of Europe? The Court found that it did not have jurisdiction over the events in question and as a result, the complaints of the applicant families were inadmissible. However, in so finding, the Court was required to set out what its jurisdiction is and the extent to which it does have competence over extraterritorial acts.

The Court begins by considering what jurisdiction means in accordance with Article 1 ECHR. That Article requires the contracting parties to secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of the ECHR (the substantive rights). The Court found that the concept of jurisdiction, from the perspective of public international law, is primarily territorial. It recognised that in public international law, extra-territorial jurisdiction has specific bases premised on the inviolability of the borders of judicial territory between sovereign states.3 It then considered whether any of the member States themselves had anticipated the possibility of extra-territorial effect in their actions of a similar type outside their territory, noting specifically that this was not the case, as in respect of none of the actions taken during the Gulf War, in Bosnia-Herzegovina or in the Federal Republic of Yugoslavia did any member State introduce a derogation under Article 15 ECHR (which would have indicated that the state considered itself responsible for events taking place in any of those places). Not surprisingly, the Court concludes that the member States do not appear to have "indicated a belief that its extra territorial actions involved an exercise of jurisdiction within the meaning of Article 1." This is hardly surprising, as States are unlikely to invite observations of a human rights nature on their military actions abroad. Indeed, a number of member States have gone to great lengths to avoid adjudication in national courts relating to military action abroad.4

The applicants argued that Article 1 means that member States are required to secure Convention rights in a manner proportionate to the level of control exercised by them in any given extra-territorial situation. This would mean, for example, in the case of the bombings of Serbia, as the NATO countries were effectively in control of the situation taking into account the relative strength of the two parties, that a duty of proportionality would apply to their actions. The Court rejected this argument, holding that determining whether an individual comes within the jurisdiction of the Convention is a separate issue from whether the individual can be considered a victim of a violation. On the face of it, the admissibility decision is very harsh as regards the limitation of the jurisdiction issue and it is this harshness which has been commented upon as regards the decision.

I would argue, however, that there is a much more important finding of the Court which leads towards the future of extra-territorial application of the Convention. The Court had already, in a number of decisions primarily in relation to Turkish responsibility for human rights violations in Cyprus, developed an approach to the issue. In the Banković admissibility decision, it took the opportunity to clarify where a state does engage responsibilities in its activities outside its territory. These are when the member State has:

  1. Effective control of the relevant territory and its inhabitants abroad as a result of;
  2. Military occupation (the situation regarding Turkey and Cyprus); consent, invitation or acquiescence of the state concerned; and
  3. Exercises all or some of the public powers normally exercised by that Government.

Where are these conditions met? It is certainly arguable that the member States participating in KFOR in Kosovo may fulfil these conditions, in which case their activities would be subject to the ECHR duties. There is effective control over the territory as a result of military occupation which has become consent or acquiescence of the Belgrade Government. The KFOR policing powers currently being exercised in Kosovo are divided between military and gendarme or police with military status. The fact of the inclusion of gendarme forces in the maintenance of order in Kosovo indicates that the activities of the member States there have passed into the sphere of the exercise of public powers normally exercised by a government.

Arguable also is that parts of Afghanistan may now come within the jurisdictional rule. Insofar as there is effective control over the relevant territory and its inhabitants (and here the question of how much territory is required for the definitional purposes), it is the result of U.S. and U.K. action; further, effective control is continuing to be exercised as a result of consent or invitation of the Afghan authorities. Those member States with troops there, notably the U.K., may indeed now be exercising public powers of maintenance of order which are within the definition.

The borders of European human rights are now under construction. It is no longer evident that there is a limitation of human rights duties within the ECHR system to European states. The duty to protection and the jurisdiction to pursue violations follows control of territory. When peacemaking turns into peace enforcement, the forces of European states begin to exercise public powers normally within the responsibility of a government. At this point, the duty to comply with the ECHR commitments may well be engaged.


The central theme of this article is the transformation of legal borders of human rights in the European context. My thesis is that there is an important change taking place as regards the borders of rights within member States. As a result of Čonka, states are under increasing duties of good faith in respect of persons who have been classified as illegal and indeed criminals as a result of their failure to leave a state. The state's duty towards these persons extends beyond respect for their physical person but also includes reliability in communication. Thus the borders relating to who can be excluded from the duty of good faith have been transformed.

At the same time, the physical borders of the jurisdiction of the Convention are also being revised. Member States may now be taking the borders of jurisdiction with them when they engage in peace enforcement operations abroad. While peacemaking actions may still be beyond the scope of the Convention, once the transition has taken place between military and police, even those with military status, the European human rights duties become effective.


  1. Elspeth Guild is Professor of European Immigration Law at the University of Nijmegen in the Netherlands.
  2. Application Number 51564/99.
  3. Exceptions to which the Court refers are nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality, which in fact covers a rather large territory of jurisdiction. One could even begin to argue that the exceptions have overtaken the rule and thus replaced it - the lack of extraterritorial effect now being the exception. However, this would be contrary to juridical orthodoxy.
  4. I have in mind specifically the action brought against the Belgian army on behalf of victims of its activities in Somalia and the efforts (unsuccessful) of the Belgian state to exclude the complaint from adjudication.


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