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THE APPLICABILITY OF THE ECHR IN CONTESTED TERRITORIES

  • Marko Milanović (a1) and Tatjana Papić (a2)
Abstract

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. It argues that the jurisprudence of the European Court for Human Rights, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court's current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

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References
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1 A notable exception is Larsen, K Mujezinović, ‘‘‘Territorial Non-Application’’’ of the European Convention on Human Rights’ (2009) 78 NordicJIntlL 73. See also (with a somewhat different focus) Yudkivska, G, ‘Territorial Jurisdiction and Positive Obligations of an Occupied State: Some Reflections on Evolving Issues Under Article 1 of the European Convention’ in van Aaken, A and Motoc, I (eds), The European Convention on Human Rights and General International Law (Oxford University Press, forthcoming), draft available on SSRN at <https://ssrn.com/abstract=2825208> (all page citations are to this draft).

2 See generally Milanović, M, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press 2011).

3 The ECtHR also relied on art 1 in developing positive obligations under the Convention. See Harris, DJ, O'Boyle, M, Bates, EP and Buckley, CM, Harris, O'Boyle & Warbrick, Law of the European Convention on Human Rights (Oxford University Press 2014) 21.

4 An internationally wrongful act of a State, which entails the international responsibility of that State, exists when an action or omission (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. See International Law Commission, Draft Articles on State Responsibility for Internationally Wrongful Acts, with Commentaries (2001) Official Records of the General Assembly, Fifty-sixth Session, Supp No 10, UN Doc A/56/10, <http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf> (20 July 2017) (ILC ASR) arts 1 and 2.

5 Banković et al. v Belgium et al. [GC], App No 52207/99, Decision of 12 December 2001, paras 59–63; Al Skeini et al. v the United Kingdom, App No 55721/07, Judgment of 7 July 2011, para 131.

6 See generally Milanović (n 2) 21–41.

7 See Assanidze v Georgia, App No 71503/01, Judgment of 8 April 2004, para 139; Ilaşcu et al. v Moldova and Russia, App No 48787/99, Judgment of 8 July 2004, para 312.

8 See Assanidze, para 139; Ilaşcu, para 312.

9 See generally Milanović (n 2); UN Human Rights Committee, General Comment No 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004) para 10. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 179, para 109.

10 Al-Skeini, paras 133–140.

11 Art 29 Vienna Convention on the Law of Treaties, UNTS, vol 1155, 331. See more Karagiannis, S, ‘The Territorial Application of Treaties’ in Hollis, DB (ed), The Oxford Guide to Treaties (Oxford University Press 2012) 305.

12 ILC ASR (n 4) 42, para 10; Aust, A, ‘Treaties, Territorial ApplicationMax Planck Encyclopedia of Public International Law (Max Planck Institute for Comparative Public Law and International Law/Heidelberg and Oxford University Press, Heidelberg and Oxford 2012) 5, para 22.

13 There is one in art 28 of the American Convention on Human Rights. UNTS, vol 1144, 123.

14 See art 56 ECHR; see further Moor, L and Simpson, B, ‘Ghosts of Colonialism in the European Convention on Human Rights’ (2005) 76 BYBIL 121.

15 See Assanizde, para 140; Sargsyan v Azerbaijan [GC], App No 40167/06, Decision of 16 June 2015, paras 63–70, 93.

16 Assanidze, para 141.

17 ibid para 56.

18 Most relevant here would be attribution due to de facto organ status arising from a relationship of complete dependence and control between the intervening State and the proxy non-State actor, which attributes all of the conduct of the non-State actor to the State concerned pursuant to the rule in art 4 ILC ASR, and attribution based on the State instructions or effective control over the specific conduct of the non-State actor, under art 8 ILC ASR. See generally Crawford, J, State Responsibility: The General Part (Cambridge University Press 2013) 124–6, 146–56.

19 The Court has never been clear on whether it is (exceptionally) applying ECHR-specific rules of attribution (which would be regarded as lex specialis under art 55 ILC ASR), but some of its cases could easily be so interpreted—see eg Cyprus v Turkey, App No 25781/94, Judgment of 10 May 2001, para 77 (‘[Turkey's] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support.’—‘survival’ is similar, but not necessarily the same, as the complete dependence test in general international law); para 81 (‘the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage that State's responsibility under the Convention.’—again, not an approach easily squared with the ILC ASR). These tests have been reaffirmed in multiple subsequent judgments, but again it is not clear whether the Court thinks it is applying (correctly or not) a general international law attribution framework or a Convention-specific one. See eg Sindicatul ‘Păstorul cel Bun ’ v Romania [GC], App No 2330/09, Judgment of 9 July 2013, para 76; El-Masri v the former Yugoslav Republic of Macedonia [GC], App No 39630/09, Judgment of 13 December 2012, paras 206 and 211.

20 See more Pt III.D below.

21 See eg ECmHR, Cyprus v Turkey, App No 8007/77, Decision of 10 July 1978, paras 23–24.

22 Cyprus v Turkey, App No 25781/94, Judgment of 10 May 2001, paras 77–78. The ECtHR held that in such circumstances a different finding from the one that they were within jurisdiction of Turkey would leave applicants in a ‘regrettable vacuum in the system of human rights protection’. ibid para 78. The reference to a vacuum is an indirect assessment that Cyprus no longer exercised jurisdiction over the area.

23 ECmHR, An and Others v Cyprus, App No 18270/91, Decision of 18 October 1991.

24 ibid.

25 Loizidou v Turkey (Merits), App No 15318/89, Judgment of 18 December 1996, para 44.

26 Assanidze, paras 133 and 134.

27 ibid paras 139–143.

28 Ilaşcu, para 331.

29 ibid. This entity was not internationally recognized. ibid para 2.

30 ibid para 331.

31 ibid paras 382, 392.

32 ibid para 51.

33 ibid para 65.

34 ibid para 329.

35 ibid paras 179–180.

36 ibid para 312. Emphasis added.

37 ibid para 330.

38 ibid paras 331–333.

39 ibid paras 339, 340–346.

40 ibid paras 333–334. Emphasis added.

41 ibid para 350.

42 This expression was used in the context of extraterritorial application. cf Banković, para 75 and Al-Skeini, para 137.

43 See also Mujezinović Larsen (n 1) 86.

44 See Harris et al. (n 3) 21–3. See also Mowbray, AR, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart Publishing 2004).

45 See further Mujezinović Larsen (n 1) 86.

46 Ilaşcu, para 394.

47 ibid paras 314–316.

48 ibid para 392.

49 See also Cyprus v Turkey, paras 76–77.

50 Catan and Others v Moldova and Russia, App Nos 43370/04, 8252/05 and 18454/06, Judgment of 19 October 2012.

51 ibid para 110.

52 ibid paras 145–148.

53 ibid paras 121–123.

54 See more M Milanović, ‘Grand Chamber Judgment in Catan and Others’ (EJIL: Talk!, 21 October 2012) <https://www.ejiltalk.org/grand-chamber-judgment-in-catan-and-others/>.

55 See also Mujezinović Larsen (n 1) 84.

56 Sargsyan, para 148.

57 ibid paras 47–49.

58 ibid paras 145–146.

59 ibid para 149.

60 ibid para 147.

61 ibid.

62 Ivanţoc et al. v Moldova and Russia, App No 23687/05, Judgment of 15 November 2011, para 105; Catan, para 109; Sargsyan, paras 140–142.

63 ibid para 144. See more M Milanović, ‘European Court Decides that Israel Is Not Occupying Gaza’ (EJIL: Talk!, 17 June 2015) <https://www.ejiltalk.org/european-court-decides-that-israel-is-not-occupying-gaza>.

64 n 22.

65 Sargsyan, para 148.

66 ibid.

67 ibid para 150. Emphasis added.

68 ibid paras 233–242.

69 See eg Cyprus v Turkey, para 78. See for more Milanović (n 2) 41.

70 See also Sargsyan, Concurring Opinion of Judge Ziemele, para 3.

71 See also M Milanović, ‘Jurisdiction, Attribution and Responsibility in Jaloud’ (EJIL: Talk!, 11 December 2014) <https://www.ejiltalk.org/jurisdiction-attribution-and-responsibility-in-jaloud/>.

72 Chiragov and Others v Armenia, App No 13216/05, Judgment of 16 June 2015.

73 See more M Milanović, ‘The Nagorno-Karabakh Cases’ (EJIL: Talk!, 23 June 2015) <https://www.ejiltalk.org/the-nagorno-karabakh-cases/>.

74 See more Papić, T, ‘Fighting for a Seat at the Table: International Representation of Kosovo’ (2013) 12 ChineseJIL 543.

75 This resolution was preceded by the Military Technical Agreement, in which Serbia agreed on withdrawal of FRY forces and the presence of an international security force. Text available at <http://edition.cnn.com/WORLD/europe/9906/09/kosovo.agreement.text/> (June 1999). For more on the background see Behrami and Behrami v France; Saramati v France, Germany and Norway [GC], App Nos 71412/01 and 78166/01, Decision of 2 May 2007.

76 Serbia became bound to the ECHR in March 2004 by way of continuity with the State Union of Serbia and Montenegro, as the FRY had previously renamed itself. See more in Papić, T, ‘The More You Ignore Me the Closer I Get: Application of the European Court of Human Rights’ Standards on the Journalistic Duty of Care in Serbia’ in Beširević, V (ed), Public Law in Serbia: Twenty Year After (European Public Law Organization 2012) 197.

77 Behrami, paras 69–70.

78 Due to their incompatibility ratione personae with the provisions of the ECHR, as the ECtHR viewed all alleged violations to be attributed to the UN, since it had, under Chapter VII of the UN Charter, authorized the international presence in Kosovo. See Behrami, paras 128–152. For analysis of the decision see Milanović, M and Papić, T, ‘As Bad as It Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law’ (2009) 58 ICLQ 267.

79 Azemi v Serbia, App No 11209/09, Decision of 5 November 2013. The applicant argued that this decision was based on Serbian legislation ‘as inherited by UNMIK, legally defined the consequences of actions or failure to act’ on the part of Serbia when it effectively exercised control over Kosovo. ibid para 37.

80 ibid paras 33, 49.

81 ibid paras 43, 45.

82 ibid para 46.

83 ibid para 47.

84 For discussion of some of the issues see Istrefi, K, ‘Azemi v Serbia: Discontinuity of Serbia's De Jure Jurisdiction over Kosovo’ (2014) 4 EHRLR 388; K Istrefi, ‘Azemi v. Serbia in the European Court of Human Rights (Dis)continuity of Serbia's De Jure Jurisdiction over Kosovo’ (EJIL: Talk!, 13 March 2014) <https://www.ejiltalk.org/azemi-v-serbia-in-the-european-court-of-human-rights-discontinuity-of-serbias-de-jure-jurisdiction-over-kosovo/>.

85 Azemi, para 1, fn. 1.

86 See also arguments offered in Istrefi (n 84) 393.

87 ibid para 45.

88 See text accompanying (n 31).

89 Azemi, para 46.

90 At the time of the completion of this article, it was (according to the Kosovo government) recognized by 113 States, <http://www.mfa-ks.net/?page=2,224>. The Serbian government, however, disputes that some of these recognitions in fact occurred, while also claiming that some have been withdrawn.

91 Due to the fact that international law did not contain a prohibition of such a declaration. ICJ, Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403, 436ff.

92 See also Yudkivska (n 1) 14.

93 See more M Prelec and N Rashiti, ‘Serb Integration in Kosovo After the Brussels Agreement’ (Balkans Policy Research Group, 19 March 2015) <http://balkansgroup.org/wp-content/uploads/2017/09/Serb-Integration-in-Kosovo-After-Brussels-Agreement.pdf>.

94 See eg ‘Kosovo Serb Politician Oliver Ivanović Shot Dead outside Party Headquarters’ (The Guardian, 16 January 2018) <https://www.theguardian.com/world/2018/jan/16/oliver-ivanovic-serb-politician-in-kosovo-shot-dead>.

95 Güzelyurtlu and Others v Cyprus and Turkey, App No 36925/07, Judgment of 4 April 2017.

96 ibid, paras 282–297.

97 ibid, paras 183–189. The Court examined the jurisdiction issue proprio motu, ie the Turkish government did not argue that the Convention did not apply extraterritorially on the facts of the case. cf Rantsev v Cyprus and Russia, App No 25965/04, Judgment of 7 January 2010, which concerned the death of a Russian woman who was trafficked to Cyprus. There the respondent government did make a jurisdictional objection, which the Court dismissed by noting that the trafficking of the victim commenced on Russian territory. ibid paras 205–208. The Court subsequently found a violation of procedural obligations on the part of Russia only in respect of the trafficking, and not in respect of the victim's death, which had occurred in Cyprus. ibid paras 243–247, 307–309.

98 Loizidou (Merits), para 52: ‘the responsibility of a Contracting Party could also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control (…).’ Chiragov, para 168.

99 Al-Skeini, paras 133–137.

100 See also Milanović (n 2) 106–107.

101 See eg Human Rights Watch and Others v Foreign Secretary, UK Investigatory Powers Tribunal, UKIPTrib 15_165-CH (16 May 2016) paras 49–64 (the Tribunal finding that the ECHR does not apply to UK surveillance activities abroad); M Milanović, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56 HarvIntlLJ 81.

102 See eg Lopez Burgos v Uruguay (1981) 68 ILR 29, UN Human Rights Committee, Comm No R.12/52, UN Doc Supp no 40 (A/36/40); B Nussberger and FJ Langmack, ‘A Cold War like Thriller in Summer – Icy Times Between Vietnam and Germany’ (EJIL: Talk!, 20 February 2018) <https://www.ejiltalk.org/a-cold-war-like-thriller-in-summer-icy-times-between-vietnam-and-germany>.

103 For example, the assassination of Alexander Litvinenko ostensibly by Russian agents in London in 2006, the 2017 killing of Kim Jong-nam at the Kuala Lumpur airport, allegedly at the orders of his half-brother, the North Korean dictator Kim Jong-un, or the attempted murder of Sergei and Yulia Skripal in Salisbury in 2018.

104 Ilasçu, para 339.

105 ibid para 345. See also Yudkivska (n 1), at 9: ‘[The obligation to re-establish control] appears to be pure political rhetoric having little to do with legal obligations, and also hardly subject to assessment by legal measures. Moldova was further obliged “to refrain from supporting separatist regime.’’ I find it rather difficult to reconcile positive obligations towards people remaining on occupied territories with the obligation to refrain from supporting the separatist regime. These obligations seem mutually exclusive – if a State engages in negotiations with separatists requesting them to secure human rights of individuals on occupied territories (that was precisely what the Court was expecting to have been done for Mr Ilascu), it follows that it would propose something in exchange, such as providing economic support they might need. If Moldova was under obligation to negotiate the release of Mr Ilascu and others, it had to give something to the separatists in addition to the already ceded territory.’

106 Russia's position would likely be different with regard to the Donbas, over which it does not claim sovereignty.

107 Loizidou (Merits) para 52.

108 The residual positive obligations approach was recently affirmed by 16 votes to 1 in the Grand Chamber judgment in Mozer v the Republic of Moldova and Russia [GC], App No 11138/10, Judgment of 23 February 2016, paras 96–112 in which the Court found no reason to depart from its conclusions in Catan. Mozer was followed by a number of Chamber judgments, the most recent of which (and somewhat unique on the facts, in that it concerned a prison operated by Moldovan authorities in the separatist Transdniestrian territory) is Pocasovschi and Mihaila v the Republic of Moldova and Russia, App No 1089/09, Judgment of 29 May 2018.

109 See Milanović (n 2) 115–16, 209–28.

110 See Shany, Y, ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law’ (2013) 7 The Law & Ethics of Human Rights 47.

111 See also van der Have, N, The Prevention of Gross Human Rights Violations under International Human Rights Law (Springer 2018) 117–20.

112 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2006] ICJ Rep 43, paras 430, 434, 438, esp para 430: ‘Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events.’

113 See eg Gross, A, The Writing on the Wall: Rethinking the International Law of Occupation (Cambridge University Press 2017); Ferraro, T, ‘Determining the Beginning and End of an Occupation under International Humanitarian Law’ (2012) 94 IRRC 133; see also M Milanović, ‘The ICRC's Position on a Functional Approach to Occupation’ (EJIL: Talk!, 18 November 2015) <https://www.ejiltalk.org/the-icrcs-position-on-a-functional-approach-to-occupation/>.

114 See eg Shany, Y, ‘Binary Law Meets Complex Reality: the Occupation of Gaza Debate’ (2008) 41 IsraelLRev 68.

115 See also Yudkivska (n 1) 16–19.

116 See Milanović (n 2) 106–17.

117 See also G Nuridzhanian, ‘(Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine’ (EJIL: Talk!, 9 October 2017), <https://www.ejiltalk.org/non-recognition-of-de-facto-regimes-in-case-law-of-the-european-court-of-human-rights-implications-for-cases-involving-crimea-and-eastern-ukraine/>.

118 Demopoulos v Cyprus [GC], App Nos 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04, Decision of 1 March 2010.

119 The Human Rights Committee has, for example, already dealt with such a situation in respect of Crimea, as part of its monitoring and reporting function rather than through an individual communication; its concluding observations on Russia's report thus take ‘due regard for General Assembly resolution 68/262 on the territorial integrity of Ukraine’—a diplomatically oblique reference to Ukraine's continued sovereignty—while Russia's obligations are predicated on its effective control over the territory. UN Human Rights Committee, ‘Concluding Observations on the Seventh Periodic report of the Russian Federation’ (2015) CCPR/C/RUS/CO/7 para 23.

120 See eg Tuzheliak, N, ‘Investors at Conflict's Crossroads: An Overview of Available International Courts and Tribunals in the Crimean Context’ (2017) 6 UCL Journal of Law and Jurisprudence 14.

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