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State responsibility and positive obligations in the European Court of Human Rights: The contribution of the ICJ in advancing towards more judicial integration

Published online by Cambridge University Press:  18 November 2019

Rosana Garciandia
Rosana Garciandia*
Affiliation:
The Dickson Poon School of Law, King’s College London, WC2R 2LS
*
Email: rosana.garciandia@kcl.ac.uk
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Abstract

The European Court of Human Rights (ECtHR) follows its own rules regarding the responsibility of states, although the international law of state responsibility enshrined in the International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) remains, as general international law, relevant to its decisions. However, case law of the ECtHR shows that the Court is departing from certain ARSIWA principles as it adopts a broad interpretation of rights contained in the European Convention on Human Rights (ECHR) giving rise to positive obligations.1

Exploring those trends in the state responsibility regime of the ECHR, this article argues that, by clarifying certain ARSIWA provisions, the International Court of Justice (ICJ) can play an important role by contributing to a higher degree of judicial integration on the law of state responsibility. It is desirable that the ICJ takes any upcoming opportunity to provide greater clarity on the challenges and nuances of the applicability of the law of state responsibility, in particular as it relates to positive obligations. That would contribute to a more systematic use of those rules by regional courts such as the ECtHR, and ultimately to guaranteeing a greater protection of human rights.

Keywords

European Court of Human Rightshuman rightsInternational Court of Justicepositive obligationsstate responsibility
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 33 , Issue 1 , March 2020 , pp. 177 - 187
Copyright
© Foundation of the Leiden Journal of International Law 2019 

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Footnotes

*

The author would like to thank Professor Philippa Webb for her support and for her comments on earlier drafts.

References

1 See J. Crawford and A. Keene, ‘The Structure of State Responsibility under the European Convention on Human Rights’, in A. van Aaken and I. Motoc (eds.), The European Convention on Human Rights and General International Law (2018).

2 In accordance with Art. 12 ARSIWA, ‘there is a breach of an international obligation by a state when an act of that state is not in conformity with what is required of it by that obligation, regardless of its origin or character’.

3 See Section 2.

4 The compilation covers 163 cases, with 392 references to ARSIWA in publicly available decisions taken from 1 January 2001 to 31 January 2016 (Responsibility of States for internationally wrongful acts, Compilation of decisions of international courts, tribunals and other bodies, Report of the Secretary-General, 20 June 2017, UN Doc. A/71/80/Add.1).

5 In that compilation, the UN Secretariat shows an almost stable increase in references to ARSIWA from 2001 to 2016, in both decisions and opinions: references in decisions raised from one in 2001 to 68 in 2015. References in opinions raised from one in 2002 to 15 in 2016, with 24 in 2014, and 37 in 2015.

6 See compilations prepared by the Secretary-General in 2007, 2010, 2013, and 2016, as requested by the General Assembly in its resolutions A/RES/59/35, A/RES/62/61, A/RES/65/19, and A/RES/68/104.

7 N. Jägers, Corporate Human Rights Obligations: In Search for Accountability (2002), 175.

8 B. Simma, ‘Human Rights before the International Court of Justice: Community Interest Coming to Life?’, in C. J. Tams et al. (eds.), The Development of International Law by the International Court of Justice (2013), 301–25, at 319.

9 V. Gowlland-Debas, ‘The ICJ and the Challenges of Human Rights Law’, in M. Adenas et al. (eds.), A Farewell to Fragmentation. Reassertion and Convergence in International Law (2015), 109–45, at 111.

10 CESCR, General Comment N. 3: The Nature of States Parties’ Obligations (Art. 2, para. 1 of the Covenant), 14 December 1990, UN Doc. E/1991/23, paras. 2, 3, 5.

11 CESCR, General Comment No. 12: The Right to Adequate Food (Art. 11 of the Covenant), 12 May 1999, UN Doc. E/C.12/1999/5, para. 15.

12 I. Boerefijn, ‘Establishing State Responsibility for Breaching Human Rights Treaty Obligations: Avenues under UN Human Rights Treaties’, (2009) 56(2) Netherlands International Law Review 167, 171.

13 A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (2004), 2.

14 H. Tomlinson QC, ‘Positive Obligations under the European Convention on Human Rights’, ALBA Summer Conference 2012, at 9; L. Lavrysen, Human rights in a positive state: rethinking the relationship between positive and negative obligations under the European Convention on Human Rights (2016).

15 Dissenting Opinion of Judge Martens in Gul v. Switzerland 1996-I, at 165 (ECtHR, 19 February 1996).

16 Z v. UK (ECtHR, 10 May 2001).

17 Fox, Campbell and Hartley v. UK (ECtHR, 30 August 1990).

18 Özgür Gündem v. Turkey (ECtHR, 16 March 2000). These three examples are cited in Mowbray, supra note 13, at 2.

19 Costello Roberts v. United Kingdom (ECtHR, 25 March 1993).

20 Chapman v. United Kingdom (ECtHR, 18 January 2001).

21 Ibid., at 221.

22 J. G. Merrills, The Development of International Law by the European Court of Human Rights (1993), 102–3.

23 D. Feldman, Civil Liberties and Human Rights in England and Wales (2002), 53.

24 Mowbray, supra note 13, at 221.

25 Ibid.

26 Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights, 27 September 2001.

27 Crawford and Keene, supra note 1.

28 K. E. Boon, ‘Are control tests fit for the future? The slippage problem in attribution doctrines’, (2014) 15 Melbourne Journal of International Law 3.

29 J. Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries (2002), 265, para. 5.

30 In the Nicaragua case, the ICJ considered ‘effective control’ as a requirement for attribution (Military and Paramilitary Activities in and against Nicaragua, Judgment on the Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14). In 2007, the Court confirmed its position on effective control in the Genocide Convention (Bosnia v. Serbia) case, stating that the overall control test was not appropriate for state responsibility (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, [2007] ICJ Rep. 43, 209–10).

31 See O. Bures and H. Carrapico, ‘Private security beyond private military and security companies: exploring diversity within private-public collaborations and its consequences for security governance’, (2017) 67 Crime, Law and Social Change: An Interdisciplinary Journal 3; L. A. Dickinson, Outsourcing war and peace: preserving public values in a world of privatized foreign affairs (2011); N. D. White, ‘Due Diligence Obligations of Conduct: Developing a Responsibility Regime for PMSCs’, (2012) 31 Criminal Justice Ethics 233.

32 Boon, supra note 28.

33 Ibid.

34 Ibid., at 35.

35 Case concerning the United Kingdom’s responsibility for the acts of teachers that denied rights contained in the ECHR (Costello Roberts v. United Kingdom, supra note 19).

36 Case concerning Ireland’s responsibility to breach the positive obligation to take measures to ensure that individuals are not subjected to mistreatment (O’Keeffe v. Ireland (ECtHR, 28 January 2014)).

37 Crawford and Keene, supra note 1, at 181.

38 Ibid., citing Evaldsson and Others v. Sweden (ECtHR, 13 February 2007), Buzescu v. Romania (ECtHR, 24 May 2005), and Storck v. Germany (ECtHR, 16 June 2005) as examples.

39 Ibid.

40 Crawford and Keene, supra note 1, at 182.

41 Kotov v. Russia (ECtHR, 3 April 2012), concerning Russia’s potential responsibility to protect the rights of private creditors.

42 Liseytseva and Maslov v. Russia (ECtHR, 9 October 2014).

43 Mowbray, supra note 13, at 227, citing Ilhan v. Turkey (ECtHR, 27 June 2000).

44 For ICJ pronouncements regarding the rules of attribution see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168, at 242, para. 213; ICJ Advisory Opinion on the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights case, Advisory Opinion of 29 April 1999, [1999] ICJ Rep. 62, at 87, para. 62.

45 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), supra note 30.

46 See supra note 36.

47 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), supra note 30.

48 Ibid., at 220, para. 427.

49 Ibid., para. 432.

50 Ibid., para. 441.

51 See Democratic Republic of the Congo v. Uganda case, supra note 44, paras. 213–14.

52 See Section 4 below.

53 Crawford and Keene, supra note 1, at 179.

54 I. Motoc and J. J. Vasel, ‘The ECHR and Responsibility of the State: Moving Towards Judicial Integration. A View from the Bench’, in van Aaken and Motoc, supra note 1.

55 Behrami and Behrami v. France and Saramati v. France, Germany and Norway (Admissibility) (ECtHR, 2 May 2007). See M. Milanovic and T. Papiç, ‘As Bad as it Gets: the European Court of Human Rights’s Behrami and Saramati Decisions and General International Law’, (2009) 58(2) International and Comparative Law Quarterly 267.

56 Criticism for such departure can be found in ILC, Giorgio Gaja, Special Rapporteur, ‘Seventh Report on Responsibility of International Organizations’ (27 March 2009), 26 UN Doc. A/CN.4/610; K Mujezinovic Larsen, ‘Atribution of Conduct in Peace Operations: The “Ultimate Authority and Control” Test?’, (2008) 19 EJIL 509, 528.

57 Crawford, Keene, supra note 1, at 189.

58 See infra note 72.

59 Motoc and Vasel, supra note 54, at 211.

60 Ibid.

61 Topical summary of the discussion held in the Sixth Committee of the General Assembly during its fifty-fourth session prepared by the Secretariat, contained in the Report of the International Law Commission on the work of its fifty-first session (1999), UN Doc. A/CN.4/504, 9, para. 15.

62 For Pellet, ‘although perfectible, the new rules of state responsibility are indeed applicable to responsibility of states in cases of serious violations of human rights’ (A. Pellet, ‘Responsibility of States in Cases of Human-rights or Humanitarian-law Violations’, in J. Crawford et al. (eds.), The International Legal Order: Current Needs and Possible Responses (2017), 230–51). See also Boerefijn, supra note 12, at 170–1; A. Kouassi, La responsabilité internationale pour la violation des droits de l‘homme (2016); C. Thiele, ‘Das Verhältnis zwischen Staatenverantwortlichkeit und Menschenrechten’, (2011) 49(4) Archiv des Völkerrechts 343; B. Simma, ‘Human Rights and State Responsibility’, in A. Reinisch et al. (eds.), The Law of International Relations, Liber Amicorum Hanspeter Neuhold (2007), 359–82, at 381; A. Cassese, International Law (2001), 208; A. Pellet, ‘Human Rightism and International law’, (2000) 10 Italian Yearbook of International Law 3; R. McCorquodale, ‘Impact on State Responsibility’, in M. Kamminga et al. (eds.), The Impact of Human Rights Law on General International Law (2009), 235–4, 251.

63 J. Crawford, ‘Investment Arbitration and the ILC Articles on State Responsibility’, (2010) 25(1) ICSID Review 127.

64 ILC Study Group on Fragmentation of International Law, ‘Study on the Function and Scope of Lex Specialis Rule and the Question of Self-Contained Regimes: An Outline’ (2004), para. 3.3.

65 Third report on State responsibility, Special Rapporteur J. Crawford, 2000, UN Doc. A/CN.4/507, 50, para. 329.

66 Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, 2006, UN Doc. A/CN4/L682, para. 172.

67 J. Crawford, State Responsibility, the General Part (2013), 103–6.

68 Military and Paramilitary Activities in and against Nicaragua, supra note 30.

69 Ibid., at 134, para. 267.

70 Simma, supra note 62, at 365.

71 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment: Merits of 30 November 2010, [2010] ICJ Rep. 639, para. 66.

72 Ibid.

73 A. Cançado Trindade, ‘Conclusion. Reflections on the 2015 Strasbourg Conference’, in van Aaken and Motoc, supra note 1, at 303.

74 Motoc and Vasel, supra note 54, referring to B. Simma and D. Pulkowski, ‘Of Planets and the Universe: Self-Contained Regimes in International Law’, (2006) 17 EJIL 490, and to D. M. Banaszewska, ‘Lex specialis’, in Max Planck Encyclopedia of Public International Law (2015), para 8.

75 Catan and Others v. the Republic of Modova and Russia (ECtHR, 19 October 2012), on Russia’s control of a region in Moldova.

76 Ibid., para 136.

77 Crawford and Keene, supra note 1, at 190.

78 This distinction was analysed in further detail in the Jaloud v. The Netherlands case, although the distinction between jurisdiction and attribution was not fully clarified. Two judges expressed dissenting opinions in a matter that showed the difficulties of harmonizing the ECHR system with the ARSIWA (Jaloud v. the Netherlands (ECtHR, 20 November 2014)). See also M. Milanovic, ‘Jurisdiction, Attribution and Responsibility in Jaloud’, EJIL:Talk!, 11 December 2014, available at www.ejiltalk.org/jurisdiction-attribution-and-responsibility-in-jaloud/.

79 Chiragov and Others v. Armenia (ECtHR, 16 June 2015).

80 Crawford and Keene, supra note 1, at 196.

81 As Higgins reminds, ‘there is increasing reference in the jurisprudence of human rights treaty bodies to the International Court’s judgments. And the Court, for its part, has begun to refer to the practice of treaty bodies in the context of its own judicial work’ (R. Higgins, ‘Human Rights in the International Court of Justice’, (2007) 20 Leiden Journal of International Law 745, at 748). See also D. Spielmann, ‘Fragmentation or partnership? The Reception of ICJ Case-law by the European Court of Human Rights’, in M. Andenas and E. Bjorge (eds.), A Farewell to Fragmentation: Reassertion and Convergence in International Law (2015), 173–90.

82 Sir Robert Jennings, The Role of the International Court of Justice in the Development of International Environmental Law (1992), 241. See also S. R. S. Bedi, The Development of Human Rights Law by the Judges of the International Court of Justice (2007), 29.

83 See Democratic Republic of the Congo v. Uganda, supra note 44.

84 See Simma, supra note 8, at 309.

85 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, 1 July 2000, [2000] ICJ Rep. 111, at 129, para. 47.

86 See Democratic Republic of the Congo v. Uganda, supra note 44.

87 Ibid., at 244, para. 219.

88 Ibid., para. 220.

89 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Judgment (Provisional Measures) of 23 July 2018, [2018] ICJ Rep., Separate Opinion of Judge Cançado Trindade, para. 19; IACtHR, Advisory Opinion n. 18 of 17 September 2003.

90 See Democratic Republic of the Congo v. Uganda, supra note 44.

91 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Judgment (Provisional Measures) of 19 April 2017, [2017] ICJ Rep. 104, Separate Opinion of Judge Cançado Trindade, para. 52.

92 Ibid., para. 77.

93 See supra note 30.

94 J. A. Hessbruegge, ‘The Historical Development of the Doctrines of Attribution and Due Diligence in International Law’, (2004) 36(2) New York University Journal of International Law and Politics 265.

95 I. Brownlie, ‘State responsibility and the International Court of Justice’, in M. Fitzmaurice et al. (eds.), Issues of State Responsibility before International Judicial institutions (2004), 11–18, at 11.

96 See Higgins, supra note 81, at 749.