The Applicability of the ECHR in Contested Territories

International and Comparative Law Quarterly, Forthcoming

26 Pages Posted: 25 Jul 2018

See all articles by Marko Milanovic

Marko Milanovic

University of Nottingham School of Law

Tatjana Papic

School of Law Union University Belgrade

Date Written: July 3, 2018

Abstract

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Keywords: Jurisdiction, Responsibility, ECHR, European Court of Human Rights, Sovereignty, Positive Obligations, Kosovo, Georgia, Ukraine, Russia, Crimea

Suggested Citation

Milanovic, Marko and Papic, Tatjana, The Applicability of the ECHR in Contested Territories (July 3, 2018). International and Comparative Law Quarterly, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3207716

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

School of Law Union University Belgrade ( email )

Goce Delceva 36
Belgrade, 11070
Serbia

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