As Bad as it Gets: The European Court of Human Rights' Behrami and Saramati Decision and General International Law

33 Pages Posted: 11 Aug 2008 Last revised: 27 Jan 2009

See all articles by Marko Milanovic

Marko Milanovic

University of Nottingham School of Law

Tatjana Papic

Union University Belgrade Faculty of Law; University of Michigan Law School

Date Written: August 11, 2008

Abstract

This article examines the European Court of Human Rights' encounter with general international law in its Behrami and Saramati admissibility decision, where it held that the actions of the armed forces of states acting pursuant to UN Security Council authorizations are attributable not to the states themselves, but to the United Nations. The article will try to demonstrate that the Court's analysis is entirely at odds with the established rules of responsibility in international law, and is equally dubious as a matter of policy. Indeed, the article will show that the Court's decision can be only be explained by the Court's reluctance to decide on the questions of state jurisdiction and norm conflict, the latter issue becoming the clearest when Behrami is compared to the Al-Jedda judgment of the House of Lords.

Note: a pre-print version of an article forthcoming in the ICLQ, published and copyrighted by Oxford University Press. Please cite to the final version as published on the Oxford Journals website whenever possible.

Keywords: Behrami, Al-Jedda, state responsibility, attribution, human rights

Suggested Citation

Milanovic, Marko and Papic, Tatjana, As Bad as it Gets: The European Court of Human Rights' Behrami and Saramati Decision and General International Law (August 11, 2008). International and Comparative Law Quarterly, Vol. 58, 2009, Available at SSRN: https://ssrn.com/abstract=1216243

Marko Milanovic (Contact Author)

University of Nottingham School of Law ( email )

Law and Social Sciences Building
University Park
Nottingham, NG7 2RD
United Kingdom

Tatjana Papic

Union University Belgrade Faculty of Law ( email )

Bulevar Marsala Tolbuhina 36
Belgrade, 11070
Serbia

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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