JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, WOJTYCZEK AND ROOSMA

1. We agree with the finding in the present case that the applicants’ daughters and grandchildren do not fall within the jurisdiction of France in respect of the complaint under Article 3 of the Convention. We also agree with much of the reasoning in the judgment related to Article 3 § 2 of Protocol No. 4. In particular, we agree with the “divided and tailored” approach to the State’s obligation under Article 1 to recognise Convention rights as well as with the understanding that Article 3 § 2 of Protocol No. 4 inherently implies that the right guaranteed will apply to the relationship between a State and its nationals when the latter are outside its territory or a territory over which it exercises effective control. Furthermore, we subscribe to the view that Article 3 § 2 of Protocol No. 4 entails certain positive obligations.

2. Where we respectfully disagree with the majority is the scope of the right guaranteed under Article 3 § 2 of Protocol No. 4. We are of the opinion that the applicants’ request for the repatriation of their family members falls outside the scope of this provision in its entirety and is as such incompatible ratione materiae with the provisions of the Convention and its Protocols. As this provision is not applicable it could not have been violated.

3. We have to emphasise, at this juncture, that we by no means overlook the deplorable situation in which the applicants’ relatives find themselves in the camps in north-eastern Syria. There is enough evidence to show that the living conditions in the camps are harsh and dangerous. What is more, there seems not to be much hope for the inhabitants of the camps to leave in the foreseeable future.

4. While the above does call for a political solution and humanitarian efforts, we are not convinced that it justifies such an extensive interpretation of the scope of the right to enter one’s country as that envisaged by the majority. Moreover, regardless of the – in our view – unjustified expansion of the right to enter, the practical consequences of the right read into Article 3 § 2 of Protocol No. 4 are most probably very limited and have little prospect of offering realistic help to persons in a situation comparable to that of the applicants’ relatives. We also doubt that the present judgment really clarifies the meaning of Article 3 § 2 of Protocol No. 4; rather, it seems to imply that there may be exceptional circumstances where the provision concerned may find unexpected application.

5. First of all, the basis for finding jurisdiction in paragraph 213 is, in our view, grossly unconvincing. It appears arbitrary to suggest that the jurisdictional link exists in respect of the Syrian camp detainees whose family members have sent repatriation requests to the French authorities, but does not exist for those who have not. Considerations of particular vulnerability and a serious risk to life and well-being – as exceptions for establishing jurisdiction – appear to be much more pertinent for an analysis under Article 3 of the Convention, but not under Protocol No. 4 to the Convention. The fact that it is not possible to reach the French border without assistance by the French authorities and that the Kurdish authorities have agreed to cooperate are completely irrelevant: such a capacity-based model of jurisdiction (neither spatial nor personal) undermines the entire concept. The whole idea proposed by the majority is based on a potential of France to place the applicants’ family members under their effective control, and not on any existing authority or control.

6. As to the question of compatibility ratione personae with the Convention, the right provided for in Article 3 § 2 of Protocol No. 4 is indeed worded as a negative obligation of the State. Nevertheless, we accept that certain positive obligations are inherent therein in order to ensure the practical and effective use of the right to enter one’s country. However, these positive obligations cannot amount to an obligation to remove any factual difficulty that a person may face while seeking to exercise that right. Certain positive obligations such as an obligation to issue a travel document can be seen to inherently follow from the right in issue: by withholding a travel document the State would itself – either intentionally or inadvertently – prevent its national from entering its territory.

7. This, however, is not the case in the present instance. The French authorities have confirmed that if the applicants’ relatives were to arrive at the French border they would not be turned away and would be allowed to enter France. Nor has it been argued that the return of the applicants’ daughters and grandchildren to France has been hindered by the absence of travel documents or that this would be attributable to the French authorities.

8. In paragraph 243 of the judgment reference is made, as regards the principles governing the interpretation of the Convention, to the cases of Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, §§ 118-25, 8 November 2016) and Al-Dulimi and Montana Management Inc. v. Switzerland ([GC], no. 5809/08, § 134, 21 June 2016). In the latter case, the Court reiterated the principle that the provisions of the Convention cannot be interpreted and applied in a vacuum. Despite its specific character as a human rights instrument, the Convention is an international treaty to be interpreted in accordance with the relevant norms and principles of public international law (ibid.). After careful analysis of the States’ obligations under international law, a conclusion is drawn in paragraph 259 of the judgment, that “there is no obligation under international treaty law or customary international law for States to repatriate their nationals”. While it has been widely recognised that the provisions of the Convention must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Soering v. the United Kingdom , 7 July 1989, § 87, Series A no. 161), this principle does not entail a quest for expanding the scope of the Convention rights.

9. The fact that in recent decades exile may have seemed to be a measure of the past does not mean that this provision has lost its meaning and has to be reinvented. Recent decreases in the level of protection of human rights – in some cases to a rather considerable degree – have occurred in some countries; in that context the prevention of violations that until recently seemed to belong to the past may well be a noble thing. While discovering new territories for rights may sometimes be justified and even inevitable in areas of scientific advances, we are not convinced that the undisputed increase in international mobility justifies or requires decisively an increased obligation for the States to protect their nationals abroad. While international law does not exclude a State’s extraterritorial exercise of its jurisdiction, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, “defined and limited by the sovereign territorial rights of the other relevant States” (see M.N. and Others v. Belgium (dec.) [GC], no. 3599/18, § 99, 5 May 2020, and Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 59, ECHR 2001 ‑ XII). In particular, as observed in Banković and Others , “a State’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that State’s and other States’ territorial competence (see Higgins, Problems and Process (1994), at p. 73; and Nguyen Quoc Dinh, Droit International Public , 6th Edition 1999 (Daillier and Pellet), p. 500)” (ibid., § 60). Moreover, in “dividing and tailoring” the Convention rights, this principle has to be kept in mind, along with the existence of recent examples of States invading foreign States, on the real or imaginary pretexts of protecting their nationals or compatriots outside their national territories, and thus causing major harm to the general human rights situation.

10. The operational capacity of the various States to act in situations like the present one differs and changes over time. To transform States’ humanitarian efforts into legal obligations would risk creating uncertainty and inequality, and may well prove to be counterproductive.

11. We also find worrying the reference to the humanitarian catastrophe as the basis for expanding the State’s legal obligations toward its nationals only . The humanitarian considerations and grounds listed by the majority in paragraphs 265-270 are, once again, much more pertinent to Article 3 of the Convention than to Protocol No. 4. But apart from that, the obligation to do everything possible to “put an end to violations of international humanitarian law” (see paragraphs 124 and 266) cannot be grossly discriminatory based purely on nationality. If France or any other State has the capacity to “put an end” to this humanitarian disaster, common Article 1 of the four Geneva conventions obliges it to do so regardless of the nationality of the victims.

12. In this respect, we recall Hanna Arendt’s renowned concept of citizenship as a source for all rights, which she famously described as the “right to have rights”. This concept was prompted by her personal experience of being a stateless refugee for a number of years; however, after international mechanisms of human rights protection appeared, she explained further in her book The Origin of Totalitarianism that “the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself ”. The applicants’ daughters and grandchildren have a right to life and physical integrity because they are human beings and not because they were born French; and if humanitarian considerations prompt any State to intervene, the universal nature of human rights precludes such an intervention from being limited only to the nationals of that State.

13. As regards the appropriate safeguards against arbitrariness on which the judgment seems to focus, we doubt that the judgment is sufficiently well-reasoned and clear and that the application of the principles it embodies will be of real benefit to individuals in a situation similar to that of the applicants’ relatives.

14. In the present judgment, inspiration has been sought from principles developed in the context of other Convention Articles and quite different situations. While this technique as such may be legitimate given the scarce case-law under Article 3 § 2 of Protocol No. 4 and its possible need for elaboration, we doubt that the elements chosen represent strong arguments in support of the judgment’s reasoning. Thus, it is doubtful that the operational aspects of the authorities’ actions assessed under Article 2 (the State’s obligation to prevent threats to life), developed in the context of fighting terrorism (see paragraph 273), bear many similarities with the setting of the present case. Furthermore, reliance is placed (in paragraph 276) on the case of Muhammad and Muhammad v. Romania ([GC], no. 80982/12, 15 October 2020), which dealt with a complaint under Article 1 of Protocol No. 7; the latter – unlike Article 3 § 2 of Protocol No. 4 – being a procedural right with certain quite specific requirements explicitly set out in the text of the provision in question. As regards the cases related to Article 8 referred to in paragraph 274, this provision, too, is worded quite differently from Article 3 § 2 of Protocol No. 4. In short, while it is not unusual to seek inspiration for the interpretation of a Convention provision from that of other provisions, it goes rather far, in our view, to read such extensive requirements into Article 3 § 2 of Protocol No. 4 – as has been done in the present case – on the basis of quite different provisions of the Convention.

15. For the above reasons we doubt that Article 3 § 2 of Protocol No. 4 – a guarantee against deprivation of the right to enter one’s country – can be understood to encompass the procedural right to repatriation involving certain substantive elements.

16. Indeed, the language used in the judgment – the requirement that the decision-making process concerning the request for repatriation be surrounded by appropriate safeguards against arbitrariness – primarily seems to refer to the State’s procedural obligation. However, on a closer look it appears that there has to be an independent body that is to review the lawfulness of decisions of a competent authority not to grant a request for repatriation and that review should enable the applicant to be made aware, even summarily, of the grounds for the decision and thus to verify that those grounds have a sufficient and reasonable factual basis . Moreover, in case of minors, the review should ensure in particular that the competent authorities have taken due account of the children’s best interests . Thus, by requiring quite an extensive independent review, according to the guidelines set out by the Court, the Court in fact seems to set criteria for the assessment as to whether the States have complied with their obligation corresponding to the substantive right to be repatriated: any decision to deny repatriation must have a sufficient and reasonable factual basis and in the case of children their best interests must have been duly taken into account. In other words, a decision to deny repatriation that does not have a sufficient factual basis or does not take into account the children’s best interests seems to be in breach of Article 3 § 2 of Protocol No. 4. In our reading, the above amounts to a proportionality analysis that is much more demanding than the proclaimed surrounding of the decision-making process by appropriate safeguards against arbitrariness. It also seems to amount to a substantive right to repatriation even if it is a limited one at this stage.

17. In case the correct reading of the judgment should be more limited and no proportionality requirement has been set – a hint in that direction is, indeed, made in paragraph 282 where it is said that the required independent review does not necessarily mean that the court in question would have jurisdiction to order the requested repatriation – one might ask what is the practical value of such review and whether the decision-making process that is surrounded by appropriate safeguards against arbitrariness is indeed capable of securing practical and effective exercise of the right to enter one’s country, in the wide meaning attributed to it in the judgment.

18. Lastly, the clarity of the judgment is not enhanced by the limited circumstances in which the obligation to base a denial of repatriation requests on sufficient and reasonable grounds and to take due account of the children’s best interests is triggered: those obligations of States exist only in exceptional circumstances (see paragraph 271). In other words, repatriation requests made in non-exceptional circumstances seem not to call for the same guarantees. The judgment does not specify in which procedure the existence or otherwise of exceptional circumstances is to be established.