Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court

The ECHR and General International Law, Anne van Aaken and Iulia Motoc eds., Oxford University Press, Forthcoming

16 Pages Posted: 24 Mar 2016  

Marko Milanovic

University of Nottingham School of Law

Date Written: March 23, 2016

Abstract

This paper examines the overarching trends in the jurisprudence of the European Court of Human Rights on questions of state jurisdiction in the sense of Article 1 of the European Convention on Human Rights and state responsibility, after its seminal judgment in the Al-Skeini case. While the chapter makes no claim to comprehensiveness of coverage, it first discusses the threshold question of the extraterritorial applicability of human rights treaties, and analyses the relationship between the notions of jurisdiction and responsibility, specifically looking at the recent Jaloud v. Netherlands case. It then examines the issue of the relationship between human rights and international humanitarian law and the European Court’s judgment in Hassan v. UK. This chapter’s main thesis is that the Court is growing increasingly comfortable with applying the Convention extraterritorially and in armed conflict, as well as in directly invoking rules of international humanitarian law. However, a number of important caveats and uncertainties remain in the Court’s jurisprudence, which will inevitably be at issue in important cases currently pending or soon to be pending before it, e.g. the many interstate and individual applications dealing with the conflict in Ukraine.

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

Keywords: jurisdiction, responsiblity, attribution, European Convention on Human Rights, extraterritoriality, armed conflict

Suggested Citation

Milanovic, Marko, Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court (March 23, 2016). The ECHR and General International Law, Anne van Aaken and Iulia Motoc eds., Oxford University Press, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2753544

Marko Milanovic (Contact Author)

University of Nottingham School of Law ( email )

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

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