Georgia v. Russia (II) and “a context of chaos”: active hostilities and jurisdiction of the state under the European Convention on Human Rights

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Author: Sergey Sushkov

DOI: 10.21128/2226-2059-2021-2-40-53

Abstract

In Georgia v. Russia (II), the European Court of Human Rights used the concept of a “context of chaos” to substantiate the lack of state jurisdiction during the active phase of hostilities. This concept is applicable in the establishment of extraterritorial jurisdiction based both on effective control over an area and on the state agent authority and control over individuals. The Court also developed its position on the importance of the “element of proximity” in establishing jurisdiction over the victims of shelling. At the same time, the ECtHR left open the question of the relationship between the concepts of “element of proximity” and “context of chaos” when establishing jurisdiction based on the state agent authority and control over individuals. Meanwhile, active hostilities and “context of chaos” do not affect the existence of State jurisdiction over prisoners of war and detained civilians. The Court’s finding on the lack of jurisdiction during the active phase of hostilities creates a vacuum in the system of human rights protection, which can be explained by the Court’s reasonable unwillingness to apply international humanitarian law or to use it for the interpretation of the European Convention on Human Rights. In addition, the ECtHR revised its approach regarding the role of occupation as a factor in establishing jurisdiction over a territory. In accordance with the logic of the ECtHR, the presence of troops on the territory of another state automatically entails the establishment of extraterritorial jurisdiction. Finally, the Court made it clear for the first time that the model of the violation of positive obligations in an extraterritorial context allows the Court to avoid considering the issue of imputing to the state actions that violated human rights. However, in Georgia v. Russia (II), the Court did not conduct a proper analysis of the violation of positive obligations by Russia. The ECtHR found a violation of positive obligations without any reference to the facts of the case. In this paper, the author presents a critical view of the validity of the Court’s conclusions.

About the author: Sergey Sushkov – MA Student, “Law of International Trade, Finance and Economic Integration” Programme, Higher School of Economics, Moscow, Russia.

Citation: Sushkov S. (2021) Gruziya protiv Rossii (II) i “kontekst khaosa”: aktivnye boevye deystviya i yurisdiktsiya gosudarstva v ramkakh Evropeyskoy Konventsii o zashchite prav cheloveka i osnovnykh svobod [Georgia v. Russia (II) and “a context of chaos”: active hostilities and jurisdiction of the state under the European Convention on Human Rights]. Mezhdunarodnoe pravosudie, vol. 11, no. 2, pp. 40–53. (In Russian).