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THE OBLIGATION TO REFRAIN FROM ASSISTING THE USE OF THE DEATH PENALTY

Published online by Cambridge University Press:  09 July 2013

Bharat Malkani
Bharat Malkani*
Affiliation:
Lecturer in Law, University of Birmingham, b.malkani@bham.ac.uk.
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Abstract

In this paper, I assert that the prohibition on the death penalty brings with it an obligation on abolitionist States to refrain from assisting the use of the death penalty in retentionist States. By considering the law on complicity and State responsibility, the obligation to protect under international human rights law, and the practice of States, I argue that although there are jurisdictional issues and although the death penalty is not prohibited under general international law, an obligation to refrain from being complicit in the death penalty is developing in international law.

Keywords

complicitydeath penaltydiplomatic protectionextraditionmutual legal assistanceobligation to protectState responsibility
Type
Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 3 , July 2013 , pp. 523 - 556
Copyright
Copyright © British Institute of International and Comparative Law 2013 

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References

1 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221. Although art 2 of the ECHR permits the death penalty, the European Court of Human Rights has held that this article has been amended by State practice so as to prohibit the death penalty in all circumstances. See Al-Saadoon v United Kingdom (App no 614898/08) (2010) 51 EHRR 9.

2 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (adopted 15 December 1989, entered into force 11 July 1991) 1642 UNTS 414 (at the time of writing, ratified by 75 States).

3 The arts on State Responsibility are annexed to United Nations Resolution 56/83 adopted by the General Assembly on 12 December 2001. The UK courts have recognized these articles to be an authoritative statement of the principles of State responsibility (R v Lyons [2002] UKHL 44 [36]).

4 Strictly speaking, extradition is a type or form of mutual legal assistance, and thus it might be wondered why I have chosen to consider the two separately. As will become clear, abolitionist States and international law have tended to treat the two differently in death penalty cases, and it is for this reason that extradition is considered separately to mutual legal assistance cases.

5 Available on the Foreign and Commonwealth Office's website: <http://www.fco.gov.uk/resources/en/pdf/global-issues/human-rights/death-penalty-strategy-oct-11-15> accessed 8 October 2012. It is for this reason that reference is often made in this paper to the laws and practice of the UK for illustrative purposes. The UK is also referred to for illustrative purposes because, for the most part, it is an exemplar in ensuring that it is not complicit in executions.

6 For examples, see Aust, HP, Complicity and the Law of State Responsibility (CUP 2011) 107–69CrossRefGoogle Scholar.

7 See, for example, Joint Committee on Human Rights, Twenty-Third Report of 2008–09, ‘Allegations of UK Complicity in Torture’ HL 152, HC 230, 21 July 2009. <http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/15202.htm> accessed 8 October 2012. Also see Human Rights Watch: ‘Cruel Britannia: British Complicity in the Torture and Ill-treatment of Terror Suspects in Pakistan’ (November 2009) <http://www.hrw.org/sites/default/files/reports/uk1109web_0.pdf> accessed 8 October 2012. It should be noted that the British Government has rejected the findings of the Human Rights Watch investigation.

8 Torture is being used as an example because, as will be discussed, there is a wealth of materials on complicity and torture.

9 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT) art 1.

10 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 7.

11 Saadi v Italy (App no 37201/06) (2009) 49 EHRR 30.

12 It is not necessary to dwell on the distinction between primary and secondary rules of international law here. Suffice to say that primary rules relate to substantive wrongs, such as the use of torture, and secondary rules relate to procedural issues such as reparations for breaches of primary rules, and so on.

13 For example, see the contributions of M Craven, B Conforti, MD Evans, and D McGoldrick in M Fitzmaurice and D Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions (OUP 2004). Each of these writers considers the issue of State responsibility under human rights law, and how this relates to the ILC articles.

14 HP Aust (n 6) 7.

15 Commentary to art 16, United Nations International Law Commission, Report on the Work of its Fifty-Third Session (23 April–1 June and 2 July–10 August 2001) UN Doc A/56/10/2001/283, para 3. Also see Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (CUP 2002) 149Google Scholar.

16 Commentary to art 16, para 3.

17 ibid.

18 ibid.

19 Cerone, J, ‘Re-examining International Responsibility: “Complicity” in the Context of Human Rights Violations’ (2008) 14 ILSA Journal of International and Comparative Law 525, 531Google Scholar.

20 It should be noted, though, that there is a trend in international law towards the prohibition of the death penalty. See Schabas, W, The Abolition of the Death Penalty in International Law (3rd edn, Cambridge 2003)Google Scholar. It is also well documented that States across the world are predominantly moving towards abolition of the death penalty, with very few States introducing or expanding the use of the death penalty. For a thorough analysis of the global trend towards abolition, see Hood, R, The Death Penalty: A Worldwide Perspective (4th edn, Oxford 2008)CrossRefGoogle Scholar Also, it should be noted that there are some general rules of international law that govern the use of the death penalty. For example, international law prohibits the death penalty for offenders under the age of 18, and thus the United States of America would be committing an internationally wrongful act if it imposed the death penalty on such offenders, and the assisting State could therefore incur responsibility.

21 It is for this reason, therefore, that when I refer to ‘abolitionist States’ in this paper, I am referring to those States that would be in violation of their obligations under international law if they imposed the death penalty, rather than those States that have abolished the death penalty as a matter of domestic law, but have not ratified any international treaty to that effect.

22 Art 55 of the ILC arts states that ‘special rules of international law’ take precedence over the arts, including art 16. This is so notwithstanding the alleged customary nature of art 16. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43 [420] (the ICJ referring to art 16 as ‘reflecting a customary rule’.).

23 On the obligation to protect, see Shue, H, Basic Rights: Subsistence, Affluence and US Foreign Policy (2nd edn, Princeton 1996) 52Google Scholar.

24 Hakimi, M, ‘State Bystander Responsibility’ (2010) 21 EJIL 341, 376CrossRefGoogle Scholar (Hakimi notes that this issue has not been considered in detail).

25 Human Rights Committee, CCPR General Comment 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, para 8.

26 Osman v UK (2000) 29 EHRR 245.

27 Hakimi (n 24) 353–4.

28 HP Aust (n 6) 396.

29 Art 23 of the Draft arts was concerned with the responsibility of States to prevent wrongful acts. See Conforti, B, ‘Exploring the Strasbourg Case-Law: Reflections on State Responsibility for the Breach of Positive Obligations’ in Fitzmaurice, M and Sarooshi, D (eds), Issues of State Responsibility before International Judicial Institutions (Hart 2004)Google Scholar.

30 B Conforti (n 29) 136.

31 M Hakimi (n 24) 365.

32 ibid 354.

33 But note that, according to McGoldrick, ‘[t]here is little academic literature on State responsibility in the human rights context, outside of the discussion of the ILC draft Articles.’ D McGoldrick, ‘State Responsibility and the International Covenant on Civil and Political Rights’ in Fitzmaurice and Sarooshi (n 29) 167.

34 ibid 199.

35 MD Evans, ‘State Responsibility and the European Convention on Human Rights: Role and Realm’ in Fitzmaurice and Sarooshi (n 29) 140.

36 Aust (n 6) 390.

37 Al-Saadoon v United Kingdom (n 1) [120].

38 It should be noted though that many of these 75 are also party to the ECHR.

39 JCHR (n 7) Also see Human Rights Watch (n 7).

40 JCHR (n 7) para 35.

41 JCHR (n 7) para 43.

42 Judge v Canada, Comm No 829/1998, UN Doc CCPR/L/78//D/829/1998 (2003).

43 For example, see Yorke, J, ‘Europe's Judicial Inquiry in Extradition Cases: Closing the Door on the Death Penalty’ (2004) 29 ELR 546Google Scholar; Clapham, A, ‘Symbiosis in International Human Rights Law: The Öcalan Case and the Evolving Law on the Death Sentence’ (2003) 1 JICJ 475Google Scholar; Sherlock, A, ‘Extradition, Death Row and the Convention’ (1990) 15 ELR 87Google Scholar; Dugard, J and Van den Wyngaert, C, ‘Reconciling Extradition with Human Rights’ (1998) 92 AJIL 187CrossRefGoogle Scholar; Roecks, CR, ‘Extradition, Human Rights, and the Death Penalty: When Nations Must Refuse to Extradite a Person Charged with a Capital Crime’ (1994) 25 CalWIntlLJ 189Google Scholar.

44 Soering v United Kingdom (App no 14038/88) (1989) 11 EHRR 439.

45 The ‘death row phenomenon’ refers to the mental anguish that an individual might suffer when awaiting execution on death row. In this case, the individual's age of 19 years was a factor that was taken into account.

46 Although some assurances had been given in this case, the Court agreed with the applicant that the assurances were very vague and did not rule out the possibility of the death penalty altogether.

47 Kindler v Canada (Minister of Justice) [1991] 2 SCR 779.

48 Kindler v Canada, Comm No 470/1991, UN Doc CCPR/C/48/D/470/1991 (1993) [14.6].

49 United States v Burns [2001] 1 SCR 283 (Canada).

50 ibid [131].

51 Judge v Canada (n 42) [10.3].

52 ibid [10.4].

53 For example, Ng v Canada, Comm No 469/1991, UN Doc CCPR/C/49/D/469/1991 (1994); Soering v United Kingdom (n 44).

54 United Nations Economic and Social Council, Report on capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty (18 December 2009) para 9. Available at <http://www.unodc.org/documents/commissions/CCPCJ_session19/E2010_10eV0989256.pdf> accessed 8 October 2012.

55 ibid (quoting the Human Rights Committee, Concluding Observations on Australia (CCPR/C/AUS/CO/5), para 20).

56 The ‘abolition norm’ refers to the emerging norm in international law that demands the prohibition of the death penalty. See Malkani, B, ‘The Judicial Use of International and Foreign Law in Death Penalty Cases: A Poisoned Chalice?’ in Sarat, A (ed), Is the Death Penalty Dying? (vol 42 Studies in Law, Politics and Society, Elsevier 2008)Google Scholar.

57 Charter of Fundamental Rights of the European Union, OJ EC 18 December 2000, 2000/C 364/1, art 19(2).

58 Öcalan v Turkey (App no 46221/99) (2005) 41 EHRR 985 [162].

59 ibid [162]–[165] Also see Clapham (n 43) 475.

60 Al-Saadoon (n 1) [120].

61 ibid [123].

62 ibid [138] (emphasis added).

63 Buys, C, Pollock, S and Pellicer, I, ‘Do Unto Others: The Importance of Better Compliance with Consular Notification Rights’ (2011) DukeJComp&IntlL 461, 466–75Google Scholar. Also see the European Commission funded ‘European Foreign Nationals Facing the Death Penalty’ project run by the charity Reprieve. This Project aims to ensure that foreign nationals are provided with assistance from consular officials, with the founder of Reprieve asserting that governmental assistance makes a ‘life and death’ difference because, rather than seeking to execute ‘some anonymous individual’, the State is instead attempting to execute an individual who has the force of a government behind them. See <http://www.reprieve.org.uk/investigations/ecproject/> The interview with Clive Stafford Smith, in which he explains how consular assistance can help prevent executions, begins at 1:57 in the embedded video.

64 On constructive knowledge being sufficient, see JCHR (n 7) para 35.

65 It should be noted that there are many instances in which the home State has intervened but has not been able to prevent the execution of one of its nationals. For examples see LaGrand Case (Germany v United States of America) [2001] ICJ Rep 466; Sanchez-Llamas v Oregon, 548 US 331 (2006); Simma, B and Hoppe, C, ‘From LaGrand and Avena to Medellin—A Rocky Road Toward Implementation’ (2006) 14 TulJIntl&CompL 7Google Scholar; and the execution of British national Akmal Shaikh in China on 29 December 2009 (for information on this case, see <http://www.reprieve.org.uk/cases/akmalshaikh/> accessed 8 October 2012.

66 But note the many cases in which individuals have not been informed of this right upon arrest, and have subsequently faced capital charges. In some cases, the individual's home State has voluntarily intervened and attempted to prevent the execution. The efforts of Paraguay, Germany and Mexico to assist their nationals on death row in the United States of America, for example, has been well documented: see for example Simma and Hoppe (n 65); Hoppe, C ‘Implementation of LaGrand and Avena in Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights’ (2007) 18 EJIL 317CrossRefGoogle Scholar.

67 On the efforts of John Dugard to establish a duty to protect, and on the eventual rejection of Dugard's proposals, see CF Amerasinghe, Diplomatic Protection (OUP 2008) 80–90.

68 China Navigation Co Ltd v Attorney General [1932] 2 KB 197.

69 For a more comprehensive outline of which States have created a duty to provide diplomatic protection, see Amerasinghe (n 67) 82.

70 Hess-Entscheidung, 7 July 1975, BVerfGE 55 (reproduced in 90 ILR (1992) 387) (cited by Amerasinghe (n 67) at 83).

71 Geck, WK ‘Diplomatic Protection’ (1992) 1 EPIL 1052Google Scholar (cited by Amerasinghe (n 67) at 83).

72 On this, see Murray, CRG, ‘In the Shadow of Lord Haw Haw: Guantánamo Bay, Diplomatic Protection and Allegiance’ [2011] PL 115Google Scholar, especially at 122–4.

73 R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598.

74 ibid [69].

75 ibid [106(i)].

76 R (Al-Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279.

77 Murray, CRG, ‘The Ripple Effect: Guantanamo Bay in the United Kingdom's Courts’ (2010) 1 Pace International Law Review Online Companion 15Google Scholar.

78 See, for example, the indication given by the British Government in ‘Support for British Nationals Abroad: A Guide’, issued by the Foreign and Commonwealth Office. On page 19 of the Guide, the following is written: ‘If you are facing a charge that carries the death penalty, or if you have been sentenced to death, we will normally raise your case at whatever stage and level we judge to be appropriate.’ <http://www.fco.gov.uk/resources/en/pdf/2855621/english> accessed 8 October 2012. Although the British Government does routinely assist nationals on death row abroad, the Government is not always able to prevent the execution. See, for example, the execution of Akmal Shaikh in China 29 December 2009 <http://www.reprieve.org.uk/cases/akmalshaikh/> accessed 8 October 2012.

79 Kaunda and others v President of the Republic of South Africa (2005) 4 SA 235.

80 ibid [62].

81 ibid [63].

82 ibid [80].

83 ibid [164].

84 ibid [238].

85 ibid [275].

86 ibid [69].

87 ibid [98].

88 Mutual legal assistance is the phrase applicable when a judicial or prosecuting authority in another State makes a request to another State for assistance, whereas police-to-police assistance is the phrase applicable when the police force of one country makes a request to the police force of another country for assistance.

89 On the tension between respecting human rights generally and the need to provide and receive mutual legal assistance, see Currie, R, ‘Human Rights and International Mutual Legal Assistance: Resolving the Tension’ (2000) 11 CrimLF 143Google Scholar.

90 R Turner ‘Death penalty not ruled out as killers of Welsh honeymooners face sentencing’ Wales on Sunday (25 September 2011) < http://www.walesonline.co.uk/news/wales-news/2011/09/25/death-penalty-not-ruled-out-as-killers-of-welsh-honeymooners-face-sentencing-91466-29482484/> accessed 8 October 2012.

91 ‘Mullany Murders: Honeymooners' Killers Jailed for Life’ BBC News (16 December 2011) <http://www.bbc.co.uk/news/uk-wales-south-west-wales-16214772> accessed 8 October 2012.

92 Request for information under the Freedom of Information Act 2000 and response on file with the author; B Wright, ‘British police assist Thai murder enquiry’ The Independent (London, 16 February 2012) <http://www.independent.co.uk/news/world/asia/british-police-assist-thai-murder-inquiry-6988692.html> accessed 8 October 2012.

93 ‘Death Penalty for Drug Offences: Global Overview 2010’ International Harm Reduction Association (3 June 2010) <http://www.ihra.net/files/2010/06/16/IHRA_DeathPenaltyReport_Web.pdf> accessed 8 October 2012.

94 ‘Complicity or Abolition? The Death Penalty and International Support for Drug Enforcement’ (2010) International Harm Reduction Agency (21 June 2010) 6 <http://www.ihra.net/files/2010/06/20/IHRA_ComplicityorAbolition.pdf> accessed 8 October 2012.

95 ibid 20.

96 See the press release issued by Human Rights Watch: <http://www.hrw.org/news/2012/08/21/iran-donors-should-reassess-anti-drug-funding> accessed 8 October 2012; Harm Reduction International, ‘Partners in Crime: International Funding for Drug Control and Gross Violations of Human Rights’ (2012). <http://www.ihra.net/files/2012/06/20/Partners_in_Crime_web1.pdf> accessed 8 October 2012. Also see J Doward, ‘Has Britain's war on drugs led to more executions in Iran?’ The Guardian 15 September 2012 <http://www.guardian.co.uk/world/2012/sep/15/britain-drugs-war-executions-iran?INTCMP=SRCH> accessed 8 October 2012.

97 HRC Concluding Observations: Iran, UN Doc CCPR/C/79/Add.25 (1993) para 8: ‘considers the imposition of [the death] penalty … for crimes that do not result in loss of life, as being contrary to the Covenant’. Indeed, it is remarkable that the United Nations plays such a major role in the provision of assistance and resources when it is the United Nations that has been one of the major proponents for the abolition of the death penalty, especially for drug offences.

98 European Parliament resolution of 16 December 2010 on the Annual Report on Human Rights in the World 2009 and the European Union's policy on the matter [65] <http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2010-0489&language=EN> accessed 8 October 2012.

99 ‘Overseas Security and Justice Assistance: Human Rights Guidance’ (OSJA Guidance) <http://www.fco.gov.uk/resources/en/pdf/global-issues/human-rights/osja-guidance-151211.pdf> accessed 8 October 2012. Also, In July 2012, an Early Day Motion was tabled before Parliament calling on the Government to promote anti-drug trafficking initiatives that ‘respect, protect and fulfil human rights.’ The Early Day Motion can be read at <http://www.parliament.uk/edm/2012-13/by-topic/724/drugs-crimes> (EDM No 384) accessed 8 October 2012.

100 UNODC, ‘UNODC and the promotion and protection of human rights’ <http://www.unodc.org/documents/justice-and-prison-reform/UNODC_HR_position_paper.pdf> accessed 8 October 2012.

101 ibid 4.

102 ibid 10 (emphasis in original).

103 Commentary to art 16 (n 15) para 5.

104 United States v Burns (n 49) [73].

105 Agreement between the European Union and Japan on mutual legal assistance in criminal matters [2010] OJ L39/20, art 11(1)(b) read in conjunction with art 11(4).

106 European Scrutiny Committee, Mutual Legal Assistance in Criminal Matters between the EU and Japan (HC 2009–10, 4). <http://www.publications.parliament.uk/pa/cm200910/cmgeneral/euro/100202/100202s01.htm> accessed 8 October 2012.

107 For a list of such treaties, see the website of the Foreign and Commonwealth Office: <http://www.fco.gov.uk/en/publications-and-documents/treaty-command-papers-ems/treaty-command-papers-by-subject/crime> accessed 8 October 2012.

108 Treaty between the United Kingdom of Great Britain and Northern Ireland and the Socialist Republic of Vietnam on Mutual Legal Assistance in Criminal Matters (Cmd 7879) (2009), art 4. <http://www.fco.gov.uk/resources/en/pdf/3706546/3892733/21824849/Tr_VietnamMLA_July2010> accessed 8 October 2012.

109 Having said this, the following response from the UK Central Authority to a request under the Freedom of Information Act should be noted: ‘UKCA may refuse an MLA request if, for instance, the execution of the request would prejudice the sovereignty, security, ordre public, or other essential interests of the UK. This would include requests where the requesting State did not give assurances that it would not seek the death penalty. I can therefore disclose that MLA has not been provided in any cases where the requesting State refused to issue assurances that it would not seek the death penalty.’ (Received on 10 May 2012. Request and response on file with the author).

110 Mutual Legal Assistance Guidelines for the United Kingdom (9th edn) 8 April 2011 <http://www.homeoffice.gov.uk/publications/police/operational-policing/mla-guidelines-9th-ed?view=Binary> accessed 8 October 2012.

111 Mutual Legal Assistance Guidelines for the United Kingdom (7th edn) 25 June 2009, chapter 3, at 13. http://www.homeoffice.gov.uk/publications/police/operational-policing/MLA-Guidelines-7th-edition?view=Binary> accessed 8 October 2012.

112 A request for an explanation under the Freedom of Information Act 2000 was refused on 1 May 2012 under section 35(1)(a) on the grounds that the formulation or development of Government policy is exempt (request and response on file with the author).

113 Although this list is not ranked in order of importance, it is nonetheless striking that the death penalty is at the top of the list.

114 ‘Overseas Security and Justice Assistance: Human Rights Guidance’ (n 99) 16 (emphasis added).

115 The AFP Practical Guide is available through the website of the New South Wales Council for Civil Liberties website: <http://www.nswccl.org.au/docs/pdf/afp%20dp%20guidelines.pdf> accessed 8 October 2012.

116 Rush v Commissioner of Police [2006] FCA 12 (Federal Court of Australia).

117 See references to media reports discussed in Finlay, L, ‘Exporting the Death Penalty? Reconciling International Police Cooperation and the Abolition of the Death Penalty in Australia’ (2011) 33 Sydney Law Review 95Google Scholar.

118 For the AFP Guide, see <http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205401745_text> and <http://www.afp.gov.au/about-the-afp/∼/media/afp/pdf/ips-foi-documents/ips/publication-list/OG00014%20-%20International%20police%20to%20police%20assistance%20in%20death%20penalty.ashx> accessed 8 October 2012.

119 Emphasis added. In Rush v Commissioner of Police (n 116), it was held that the Bali Nine case did not fall under this Act because the Indonesian authorities had not made a formal request for assistance. The AFP volunteered the information to the Indonesian authorities.

120 Finlay (n 117).

121 ibid 96.

122 Letter from Glenn Ferguson, President of the Law Council of Australia, to The Hon Brendan O'Connor MP, Minister for Home Affairs, 29 January 2010. <http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=D02680F0-1E4F-17FA-D22C-26C61CEDF5C2&siteName=lca> accessed 8 October 2012.

123 For example, it is unclear why a person's age is relevant to such determinations, when Australia prohibits the death penalty in all cases, regardless of age.

124 Available at <http://www.afp.gov.au/about-the-afp/∼/media/afp/pdf/ips-foi-documents/ips/publication-list/NAT12011%20International%20Police-to-police%20Assistance%20in%20Death%20Penalty%20Situations%2014MAY2012.ashx> accessed 8 October 2012.

125 Emphasis added.

126 United States v Burns (n 49) [73].

127 Al-Saadoon v United Kingdom (n 1) [138].

128 Council Regulation (EC) 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment [2005] OJ L200/1, Annex II.

129 Companies in the US generally do not produce these drugs since there is little profit to be made from them.

130 R (Zagorski and Bale) v Secretary of State for Business, Innovation and Skills [2010] EWHC 3110 (Admin).

131 ibid [46].

132 See ‘The consolidated list of strategic military and dual-use items that require export authorisation (Annex III)’, Department for Business Innovation and Skills (August 2012). The short title of the List is ‘The UK Strategic Export Controls List’ and it can be viewed at <http://www.bis.gov.uk/assets/biscore/eco/docs/control-lists/12-1014-uk-strategic-export-control-list-consolidated.pdf> accessed 10 December 2012. Also see the associated press release from the Department for Business Innovation and Skills: <http://news.bis.gov.uk/Press-Releases/Government-bans-export-of-lethal-injection-drugs-to-the-US-6657f.aspx> accessed 10 December 2012.

133 ‘German Minister Denies US Request for Execution Drugs’ Der Spiegel, 6 September 2011 <http://www.spiegel.de/international/world/european-opposition-to-death-penalty-german-minister-denies-us-request-for-execution-drugs-a-767613.html> accessed 8 October 2012.

134 Information about the recent controls on the exportation of drugs to the United States of America can be found at Reprieve's Stop the Lethal Injection Project website: <http://www.reprieve.org.uk/investigations/executiondrugs/> accessed 8 October 2012.

135 On this development, see <http://reprieve.org.uk/publiceducation/2012_03_26_slip_further_detail/> accessed 8 October 2012.

136 Commission Implementing Regulation (EU) No 1352/2011 [2011] OJ L 338.

137 Finlay (n 117) 109 (emphasis in original).

138 Amerasinghe (n 67) 23. Also see Leigh, G, ‘Nationality and Diplomatic Protection’ (1971) 20 ICLQ 453CrossRefGoogle Scholar.

139 For a fuller account of jurisdiction under the ECHR following Al-Skeini, see Cowen, A, ‘A New Watershed? Reevaluating Banković in light of Al-Skeini’ (2012) 1 Cambridge Journal of International and Comparative Law 213CrossRefGoogle Scholar. For accounts of the extraterritorial application of human rights treaties generally, see Milanovic, M, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (OUP 2011)CrossRefGoogle Scholar; Gibney, M and Skogly, S (eds), Universal Human Rights and Extraterritorial Obligations (University of Pennsylvania Press 2010)CrossRefGoogle Scholar; Coomans, F and Kamminga, MT (eds), Extraterritorial Application of Human Rights Treaties (Intersentia 2004)Google Scholar, especially the chapter by D McGoldrick, ‘Extraterritorial Application of the International Covenant on Civil and Political Rights’. The issue of jurisdiction under human rights treaties has more recently been examined in APV Rogers and McGoldrick, D, ‘Assassination and Targeted Killing—The Killing of Osama Bin Laden’ (2011) 60 ICLQ 778, 784–7Google Scholar.

140 Drozd and Janousek v France and Spain (App no 12747/87) (1992) 14 EHRR 745.

141 Banković v Belgium and Others (App no 52207/99) (2007) 44 EHRR 1.

142 R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26.

143 Banković (n 141) [61].

144 Al-Skeini v United Kingdom (App no 55721/07) (2011) 53 EHRR 18.

145 Human Rights Committee, CCPR General Comment 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, para 10.

146 ICJ Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 131Google Scholar.

147 Currie (n 89) 153.