Territorial Jurisdiction and Positive Obligations of an Occupied State: Some Reflections on Evolving Issues Under Article 1 of the European Convention

Abstract

The task of the international law of occupation, as it has developed since XIX century as part of the law of war, is to regulate the conduct of occupying forces. Indeed, it is all about what an occupying power should do and should not do. Very little is said about the obligations of an occupied State, or a “victim” State - the State that lost a part of its territory following a belligerent occupation. This Paper elaborates on this issue that is not sufficiently developed in either the doctrine or the practice of international tribunals including the ECtHR. Specifically, it aims to outline the nature and defines the scope of the human rights obligations of an occupied state, in conjunction with potential concurrent duties and responsibilities of an occupying state. It discusses the posture of international law with respect to the duties of an injured state and argues that the Court’s approach in the case of Ilascu v. Moldova and Russia represented a new development in international law, according to which human rights obligations are primarily triggered by the effective territorial control. The requirements to achieve respect for human rights and freedoms in a territory outside a state’s control are rather controversial and call for a more nuanced methodology.

This paper is part of a collection based on the joint seminar organized by the European Court of Human Rights and the European Society of International Law in Strasbourg, in June 2015.

Keywords: territorial jurisdiction, positive obligations, occupation, injured state, international human rights law, European Convention on Human Rights