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Exactly 2 weeks to my viva and the Grand Chamber of the European Court of Human Rights has today gone nuclear on its Article 1 jurisprudence...
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#ECHR
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#ECHR
The major issue with the judgment, which cannot be reviewed, is the Court's finding that events occurring during the active hostilities (8 to 12 August 2008) had not fallen within the jurisdiction of the Russian Federation.
Why is that a problem, you ask?
2/n
Why is that a problem, you ask?
2/n
It's less about the Court's failure to establish jurisdiction in the present case, it is the sweeping scope of their refusal to establish jurisdiction and the implications of that language on the applicability of the ECHR in future international armed conflicts.
3/n
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Essentially the Court found that
It's really hard to know if Russia exercised jurisdiction under State agent authority/control test or other tests (
)
Jurisdiction cant be established during active hostilities ()
And
Int Humanitarian Law etc applies anyway ()
4/n
It's really hard to know if Russia exercised jurisdiction under State agent authority/control test or other tests ()Jurisdiction cant be established during active hostilities ()And
Int Humanitarian Law etc applies anyway ()4/n
Paras 137 and 141 have a lot to answer for...
They may have reduced the Courts role in adjudicating on conflict (correct, in an ideal world) but they have also completely undermined the ECHRs relevance to armed conflict, undoing earlier jurisprudence.
Deeply problematic.
5/n
They may have reduced the Courts role in adjudicating on conflict (correct, in an ideal world) but they have also completely undermined the ECHRs relevance to armed conflict, undoing earlier jurisprudence.
Deeply problematic.
5/n
It is worth noting that given the disposition of one of the key interpretive communities, member States, I can understand the jurisdictional decision reached, I'm just gobsmacked at how far the Court went to undermine its interpretive authority in times of war.
Astonishing
6/n
Astonishing
6/n
No doubt the judgment will be dissected, and we will establish a much more nuanced understanding of its strong and weak points but I can safely say that far from helping establish a coherent axiomatic regime towards Art 1, this judgment has further scattered emerging trends.
7/n
7/n
This reinforces my own views on the role of the Court and the limits of its capacities to trigger meaningful human rights progress in the context of contested territories.
This judgment, like much the 30 years of grey zone case-law before it, verges on being inexecutable.
8/n
This judgment, like much the 30 years of grey zone case-law before it, verges on being inexecutable.
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This should be a wake-up call for the Council of Europe's statutory organs, CM, PACE and SG, and non-statutory mechanisms like the Commissioner for Human Rights and other monitoring bodies.
ECHR rights holders must not be written off by jurisdictional determinations...
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ECHR rights holders must not be written off by jurisdictional determinations...
9/n
