JOINT CONCURRING OPINION OF JUDGES PAVLI AND SCHEMBRI ORLAND

1. This case involves two French women and their minor children, who have been effectively exiled from their own country, in conditions of extreme precariousness. The Court’s judgment makes important contributions to our sparse jurisprudence on the right not to be expelled from – and the right to enter – the territory of the State of one’s nationality, as guaranteed by Article 3 of Protocol No. 4 to the Convention. While we have joined the majority in the primary finding of a violation of that provision and in large parts of their reasoning, we are unable to share the heavy proceduralist approach in certain aspects of their analysis. We are also of the view that the facts of the case warrant a stronger conclusion as to the nature of the Convention violation that has been found, which we consider to be substantive as well as procedural in character.

2. The Grand Chamber has held that no general right to repatriation can be derived from Article 3 of the Fourth Protocol for nationals who happen to find themselves outside their country of citizenship and are unable to return freely to its territory. That notwithstanding, in certain exceptional circumstances, including a serious risk to the life and limb of nationals (see paragraph 271 of the judgment), the State of nationality’s “refusal ... to take any action” to facilitate a national’s right to return may amount, in effect, to de facto exile prohibited by the said Convention provision (see paragraph 260 of the judgment). In such a scenario, positive obligations are triggered for the State of nationality to guarantee the effective exercise of its nationals’ right to enter its territory – in essence, a right to return.

What do such positive obligations consist of? The majority are rather circumspect in spelling out these “other obligations”: the Court’s “requisite review will be confined to ensuring effective protection against arbitrariness in the State’s discharge of its positive obligation”. Any positive duties “must be interpreted narrowly” in the light of the absence of a general right to repatriation (see paragraph 261 of the judgment). At the same time, “the exercise by the State of its discretionary power [should be] compatible with the fundamental principles of the rule of law and prohibition of arbitrariness”.

It is perhaps unprecedented for the Court to establish positive State obligations in order to give effect to a substantive Convention right without seeking at least to delineate in broad terms the nature of those positive obligations (contrast, for example, the elaborate methodology for compliance with the so-called Osman duties to protect a person’s right to life under Article 2 of the Convention from the actions of third parties). In our view, giving effect to the right to return – however exceptional the circumstances under which such a right might arise in the first place – necessarily implies positive obligations of a procedural as well as a substantive nature. If “a refusal ... to take any action” to facilitate a national’s repatriation is found to have been arbitrary or otherwise unjustified, compliance with the relevant Convention provision would require that the State take reasonable steps to facilitate his or her return. Otherwise, a duty to ensure the effectiveness of the substantive Convention right not to be exiled would itself be severely undermined. As has often been said, great injustice has been perpetrated throughout human history on the basis of seemingly correct procedures.

It would appear that the nature of the positive obligations at stake in this case can be defined with no strenuous effort by relying on our established jurisprudence on positive obligations: no more (and no less) can be required of a State than to take, in good faith, genuine, reasonable and non-discriminatory steps to facilitate a national’s return, in the absence of any Convention-compliant grounds for refusing to do so. This would imply a duty to obtain accurate information on the situation in which the national at risk finds himself or herself; to carry out an assessment of the legal and practical feasibility of arranging the repatriation; to make relevant representations to the authorities of the foreign country or entity and other actors concerned; or conversely, to provide convincing reasons for the national authorities’ inability or unwillingness to proceed with the national’s repatriation.

At the same time, it is obvious that protection from arbitrariness has both substantive and procedural components; not only should the process of decision-making be fair, but also the reasons provided for justifying a failure to act should be Convention-compliant. In the words of the Court, there should be “no arbitrariness in any of the grounds that may legitimately be relied upon by the executive authorities” (see paragraph 276 of the judgment).

3. The majority’s heavily procedural approach becomes more evident in the standard of review that has been adopted: the Court’s enquiry is to be limited to whether “the decision-making process followed by the French authorities was surrounded by appropriate safeguards against arbitrariness” (paragraph 263 of the judgment). Why the relatively low threshold of lack of arbitrariness is the appropriate yardstick in this context is not explained, nor is it obvious from the text of Article 3 of Protocol No. 4, its drafting history, object and purpose, or any other interpretative method that can be surmised, at least in the absence of any justification in the judgment itself.

The major premise of the judgment is that positive obligations to facilitate repatriation may exceptionally arise where a failure to act would be tantamount to imposing de facto exile. It is clear from the drafting history of the relevant Convention provision that the drafters did not look favourably on preserving the ability of States to exile their own nationals, opting instead for a prohibition phrased in unqualified terms [3] and a clear departure from a dark historical practice they wished to leave behind. It follows that State policies, actions or omissions that amount to de facto (or possibly even de jure ) exile of their own nationals come with a very high burden of justification. In fact, it can be argued that no (direct or constructive) restrictions on nationals’ ability to enter the territory are permissible under Article 3 of the Fourth Protocol, except for very short periods.

So whence the arbitrariness standard of review adopted by the Grand Chamber majority? The apparent connection would seem to be the Court’s jurisprudence on deprivation of nationality or official refusal to grant a particular nationality. However, the Convention does not expressly provide for a right to obtain or retain a certain citizenship, and to the extent that the Court has recognised such a right, it has done so within the scope of the Article 8 right to respect for private and family life, subject to still-evolving thresholds of gravity of the interference with those rights. In the absence of a direct textual basis or regulation, the Court’s arbitrariness review in deprivation of nationality cases has been developed, to a great extent, with reference to the relevant provisions of the Universal Declaration on Human Rights [4] and other sources of general international law (see, among other authorities, Genovese v. Malta , no. 53124/09, § 30, 11 October 2011, and Ghoumid and Others v. France , nos. 52273/16 and 4 others, § 43, 25 June 2020). We are therefore unable to find a sufficient connection, in adopting a standard of review, between deprivation of citizenship and the imposition of de facto exile on nationals [5] . Nor is there anything in our pre-existing case-law on Article 3 of Protocol No. 4 to justify such a choice.

A mere duty to prevent arbitrariness – allowing in other words for some form of non-arbitrary exile – sits poorly with the nearly absolute ban on the modern exile of nationals. In fact, the travaux préparatoires of Article 3 make it clear that the drafters of the Fourth Protocol made a deliberate decision to delete from its second paragraph the word “arbitrary”, which appeared at the time in the corresponding provision of the draft International Covenant on Civil and Political Rights. The omission was meant to confirm the “absolute and unconditional condemnation of exile” within “the homogeneous circle of the Council of Europe” [6] . The Grand Chamber has now put “arbitrary” back into the second paragraph of Article 3. While a human rights court does not have to stay forever wedded to the drafters’ original intent in all respects, it ought to have some compelling justification for watering down the level of protection set by the Convention’s authors, in such clear terms, several decades ago.

If the majority’s choice is result-oriented – by way of preventing an “opening of the floodgates” that would impose on States an excessive burden for facilitating repatriations of nationals in various situations of distress abroad – it would not appear to be warranted on prudential grounds either. The exceptional circumstances that trigger any positive obligations in this field have been defined with such care and parsimony (and rightly so, in our opinion) that the adoption of the arbitrariness standard can only serve to make it easier for States to refuse to take action even where such action is warranted to ensure the effective exercise of the right to enter. The floodgates can be controlled at the level of the trigger mechanism, coupled with the traditional restraints that are inherent in the nature of positive obligations.

4. Turning to the next step in the analysis, what may non-arbitrary exile look like? What are the Convention-compliant grounds on which a State may nevertheless rely to justify policies or failures to act to facilitate a repatriation, even where such a positive obligation arises in principle due to exceptional circumstances?

The judgment, through its primarily procedural lens, answers the question as follows: “there must be a mechanism for the review of decisions not to grant requests for a return to national territory through which it can be ascertained that there is no arbitrariness in any of the grounds that may legitimately be relied upon by the executive authorities, whether derived from compelling public interest considerations or from any legal, diplomatic or material difficulties ” (see paragraph 276 of the judgment, emphasis added). Those grounds must have a sufficient and reasonable factual basis (ibid.).

The first set of grounds (compelling public interest considerations) refers generally to the desirability of a repatriation; in other words whether, quite apart from any practical challenges of organising the national’s return, the repatriation of a given national should be precluded because of assumed threats to national interests. In view of the clear textual and drafting record of Article 3, such bans come, in our opinion, with an exceptionally high burden of justification. If a positive duty to repatriate should be interpreted narrowly, a refusal to do so on grounds of desirability should be construed even more narrowly. Likewise, if only very compelling considerations of individual distress may trigger the State’s positive obligation in the first place, any countervailing interests militating against such a course of action must be of a stronger order of magnitude in order to prevail.

Conversely, the legal, diplomatic or material difficulties refer to the feasibility of ensuring a safe repatriation of the national at risk. This branch of assessment, while no doubt complex in situations such as those in which the family members of the current applicants find themselves, should present no special jurisprudential difficulties for the Court. As already indicated, it is our settled case-law that these are obligations of process, rather than of outcome: making a good faith, reasonable effort is generally sufficient to meet the Convention requirements.

5. One obvious question that is not answered in the judgment is the following: can European States of the twenty-first century choose to effectively exile their own nationals suspected of involvement in terrorism – or more pertinently, their family members, including very young children? That question is left to be decided another day. The matter assumes even greater urgency with respect to minors who are in a particularly vulnerable situation, which places them at a direct risk to life and limb squarely within the “exceptional circumstances” which trigger the State’s positive obligations in this case (see paragraph 271 of the judgment). In limiting its review to one of securing against procedural arbitrariness, the Court has fallen short of establishing the State’s substantive obligations to protect its own under-age nationals by taking good faith measures to secure the termination of their situation of de facto exile [7] .

Within the self-imposed procedural parameters of today’s judgment, the majority conclude that the application of the act-of-State doctrine by the French courts “deprived [the applicants] of any possibility of meaningfully challenging the grounds relied upon by [the executive] authorities and of verifying that those grounds were not arbitrary” (see paragraph 282 of the judgment).

The Court should have gone further, in our view, by calling a spade a spade. There are strong and consistent indications on the record before us that the French government’s policy of “case-by-case” consideration for repatriation applied, perhaps, to the grandchildren of the applicants, but not to their adult daughters. There is no evidence that the mothers’ repatriation has ever been seriously contemplated by the French authorities, at least as late as the summer of 2022 (see paragraph 28 of the judgment for an update on the return of the first group of French adult women detained in the Syrian camps). As a result, the possible refusal on the part of the mothers, or of the Kurdish authorities, to let their children be returned to France separately would also have condemned the children to growing up in the hellish conditions of the Syrian camps for many months or even years.

In the course of the Strasbourg proceedings the respondent Government sought to justify their inaction on additional grounds related to the practical challenges of securing the return of Syria-based detainees in general. However, this does not change the fact that the predominant reasons for such inaction, in so far as the adults were concerned, related to the desirability of the repatriations (see in particular paragraphs 46, points 6 and 9, 226 and 270, first sentence, of the judgment). The French Government have not shown that the applicant’s daughters were, in fact, welcome to come home: they did not provide any reasons whatsoever at the national level for their refusal to act, and they have not proven in the Strasbourg proceedings that there has ever been a serious and individualised assessment of the feasibility of the repatriation of the applicants’ daughters.

The respondent Government have put forward certain general arguments about the dangers of allowing French family members of ISIS fighters detained in Syrian camps to return to the country. However, they have not presented any facts or arguments related to the specific threats that these particular individuals (that is, the applicants’ daughters) might present for French national security; presumably, due to the need to preserve the secrecy of the criminal proceedings currently pending against them. Whatever the merits of the latter argument, the Government’s choice meant that such considerations played no role in today’s judgment. It is also unclear how such a line of argument fits with France’s obligations under international law to prevent further radicalisation as a counter-terrorism measure (see paragraph 269 of the judgment and further references therein). In any event, the Government have indicated that they would not prevent the applicants’ relatives from entering France if they somehow manage to find their way to a French border, or to return via Türkiye under the Cazeneuve Protocol (see paragraph 270 of the judgment) – a position that tends to undermine any national security arguments against their repatriation. In the circumstances, the French authorities’ inaction has subjected the applicants’ relatives to a form of de facto exile.

6. Despite our misgivings on the above aspects of today’s judgment, nothing in this separate opinion is meant to detract from its overall importance. The Court has used the opportunity to provide important clarifications on the question of jurisdiction, the circumstances under which positive obligations may arise with respect to repatriation of nationals, and other novel aspects of Article 3 of the Fourth Protocol to the Convention. The holding that act-of-State or similar doctrines cannot preclude the justiciability and adequate national protection of the fundamental rights guaranteed by the Convention is of crucial importance.

In December 2017 Rome’s city council voted to symbolically revoke the extrajudicial banishment of the Roman poet Ovid to the shores of the Black Sea on the personal order of the Emperor Augustus – an early version of the act-of-State doctrine. Some sixty years ago, and almost two thousand years since Ovid’s misfortune, the drafters of the Fourth Protocol to the Convention sought to eradicate the brutal practice of the forced exile of nationals. The very real threat that terrorism poses to European nations has brought back the spectre of banishment into our midst. It remains one of the defining challenges of our era whether we can defeat this scourge without poisoning our body politic.