“Jurisdiction” and “imputation” in the ECtHR Decisions on the application of the Convention on the territory of unrecognized States: shake, but do not stir?

In cases related to application of the Convention on Protection of Human Rights and Fundamental Freedoms on the territories of unrecognized states, the European Court of Human Rights, in order to establish responsibility of a state-party, commonly uses an approach, which is based both on mixture of notions “jurisdiction” and “attribution” and on significant lowering threshold for attribution. The author comes to the conclusion that application of this approach in cases, when a state-party to the Convention is not an occupying one, does not confirm with existing international customs in the sphere of international responsibility, regardless of choice of either “effective” or “overall control” test. Generally speaking, it seems that, guided by good intentions to prevent legal vacuum in the field of protection of human rights in the territories of the unrecognized entities, just because of the unnecessary mixing conventional concept of “jurisdiction” with the general concept of “attribution”, and also out of the reluctance to see the actual specifics of individual cases, the ECHR more and more moves away from the international responsibility laws, undermining thus its own effectiveness.

About the author: Vera Rusinova – Ph.D. (Law), LL.M. (Göttingen), Associate Professor in International and Private Law, Department of Law at National Research University Higher School of Economy, Moscow, Russia.

Citation: Rusinova V. (2016) “Yurisdiktsiya” i “vmenenie” v resheniyakh ESPCH, svyazannykh s primeneniem Konventsii na territorii nepriznannykh gosudarstv: vzboltat', no ne smeshivat'? [“Jurisdiction” and “imputation” in the ECtHR Decisions on the application of the Convention on the territory of unrecognized States: shake, but do not stir?]. Mezhdunarodnoye pravosudie, no.1, pp.59–69. (In Russian).