Department of Law
Spring Term 2020
Master’s Thesis in International Human Rights Law
30 ECTS
State responsibility in NATO for the
ECHR and its effect on legal
interoperability
Why tackling the pink elephant in the room is the best option for
a more legally resilient Alliance
Author: Viktor Tunón
Foreword
The phrase tackling the pink elephant in the room deserves some explaining. It was coined by Mr Dideriksen (Special Advisor, International Law Department, Danish Ministry of Defense) in a panel discussion at NATO HQ regarding The Military Manuals of NATO Allies on the 14 of January 2020 which i was fortunate enough to be able to listen to. He used the phrase as an analogy for how the Danish Ministry of Defense in creating their Law of War Manual had decided to investigate how the norm conflict of the ECHR and IHL should be interpreted (something a lot of countries are reluctant to do). I hope that he will be able to overlook me stealing this phrase by officially stating that I was not the mastermind who created it.
The legal obligations of states are varied and imposes challenges for international organizations such as NATO to function efficiently. This has developed a need for the Allies and the organizations partners to work with the legal interoperability of the respective State’s Armed Forces. The different views on applicable laws is a tremendous hardship for the legal practitioners of the States and NATO to deal with and I wish with the space on this page to both acknowledge the important work that these international lawyers contribute with and thank them for their important work to enhance world security and rule of law.
Fourthly I wish to thank Mrs Hazel Cameron and Mr Henrik Kjellin not only for their hospitality in giving me a place to stay in Brussels during my thesis internship but also for their friendship and input regarding the questions of the thesis.
Fifthly I wish to thank my friend who contributed with correcting my thesis, in particular Mr Niklas Fridén, Ms Agnes Carlsson, Mr Robîn Nazim Îsma'îl Fazel and Ms Frida Nordström.
Sixthly and lastly, I wish to extend my gratitude towards my friends in both Sweden and Internationally for their support during my law studies. Without you I would never have made it brought the L.L.M Program. I am forever grateful.
Abstract
The attribution of state responsibility in NATO for the ECHR risks leading to legal interoperability problems should the convention be interpreted to include the acts of ECHR-Allies for their participation or omission to military operations with the forces of the Alliance. This thesis investigates whether that is the case or if the protection of the leaves a gap so that the ECHR-Allies can circumvent their responsibility under the convention by utilizing NATO to conduct military operations. In order to determine this the thesis relies on the method for state responsibility set forth in article 2 of the ILC’s Articles for State Responsibility (ARSIWA) that states that a wrongful act of a state exists when conduct consisting of an action of omission that is attributable to a state and secondly violates a international obligation of that state. Meaning that the focal point of discussion in the context of the ECHR is whether the state has jurisdiction and whether state responsibility can be incurred as a consequence of the states acts or omissions.
In order to determine this the thesis discuss the extent of extraterritorial jurisdiction in the ECHR. This thesis argues that the ECHR-Allies’ jurisdiction ought to be interpreted to be universal regarding negative obligations of the convention and exist where for positive obligations where the state excursuses effective control over a territory. Regarding attribution of omissions and acts, this thesis argues that the draft articles on the responsibility of international organizations (ARIO) is of value but that these will need to be interpreted in line with the meaning and scope of the ECHR as a human rights treaty. This Thesis argues that attribution of responsibility for omissions in the North Atlantic Council (NAC) can be incurred for the ECHR-Allies on account of the lack of a structural human rights protection within NATO. Furthermore attribution of conduct for the transferred forces of the ECHR-Ally to a NATO commander will be attributable to the state for as long as this structural deficiency exists in NATO. Should a structural protection be established within NATO, then attribution of conduct for national contributing forces (NCF) will rely on whether the state interferes with NATO:s ability to effectively command and control the NCF.
List of Abbreviations
ARIO ARSIWA ECHR ECtHR Eur. Comm´n H.R EU IAC ICJ ICL IHL ILC IO MC NAC NATO NCF NIAC OPLAN PC ROE SHAPE TCN UN UNSC USAF UNGA VCLTArticles on the responsibility of international organizations
Articles on Responsibility of States for Internationally Wrongful Acts
European Convention on Human Rights European Court of Human Rights European Commission of Human Rights European Union
International Armed Conflict International Court of Justice International Criminal Law International Humanitarian Law International Law Commission International Organization Military Committee North Atlantic Counsel
North Atlantic Treaty Organization National Contributing Force Non International Armed Conflict Operations plan
Political Committee Rules of Engagement
Supreme Headquarter Allied Powers Europe
Troop Contributing Nation United Nations
1 Introduction 10
1.1 Background 10
1.2 Purpose of the study 12
1.3 Delimitations 13
1.4 Outline of the thesis 14
1.5 The ECtHR legal method and sources used in this thesis 15
1.5.1 Sources in this thesis 15
1.5.2 Application of international law in the ECHR case law 16
1.6 The Purpose of the ECHR treaty 17
2 Jurisdiction according to the ECtHR 19
2.1 Importance of jurisdiction 19
2.2 The facto control jurisdiction 19
2.3 The Banković limitation on jurisdiction 22
2.4 Post Banković jurisdiction 24
2.4 Resolving the inconsistent jurisprudence in line with the meaning and scope of the
convention 27
2.4.1 Finding a consistent method 27
2.4.2 Jurisdictional links preexisting 29
2.5 Conclusion 31
3 Member States´ responsibility according to international law 33
3.1 State responsibility in international organizations 33
3.2 Attribution of responsibility 34
3.2.1 Responsibility in international law 34 3.2.2 Impact of NATO decision making process 37
3.2.3 Responsibility in the ECHR 38
3.2.4 NATO:s internal mechanisms for human rights protection 39 3.2.5 Responsibility for passivity in NAC 41
3.2.6 The UN exception 44
3.2.7 Interpretive flaws of Behrami and Saramanti 45
3.2.8 Conclusion 49
3.3 Attribution of conduct 51
3.3.1 The meaning of effective control 51
3.3.2 Presumption of effective control on the TCN 53 3.3.3 Member state influence in operations 56
3.3.3 Conclusion 59
4 Conclusions regarding the ECHR:s effect in NATO 60
4.1 Does a gap in the legal protection of the ECHR exist? 60 4.2 The ECHRs effect on methods for legal interoperability 62
4.3 Concluding remarks 66
1
Introduction
1.1 Background
During a press conference on the 19th of mars 2020 the Secretary General of the North Atlantic Treaty Organization (NATO) Jens Stoltenberg announced that the Alliance is looking into what can be done to support Turkey’s efforts in the Syrian crisis. This 1
statement could be interpreted in earlier remarks during 2019 where the USA has demanded that NATO becomes more involved in the middle east and Germany has proposed that the Alliance should create a security zone in Syria should authorization be given from the United Nations (UN). Should the NATO strategist be planning to use 2
the Alliance forces in such a military intervention they might however have to tackle legal questions of attribution first if they are to convince the Allies to launch a new operation.
The European Court of Human Rights (ECtHR) has in its case law acknowledged not only the possibility of extraterritorial jurisdiction but also that in these instances contracting states will have to conduct themselves in accordance with their legal obligations under the European Convention on Human Rights (ECHR) when participating in an armed conflict. Both the extent of the extraterritorial application of 3
the convention and how the norm conflict between the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and International Humanitarian Law (IHL) is to be resolved is disputed and the ECtHR:s caselaw gives little guidance on this issue. This inconsistency has left a myriad of legal opinions from contracting 4
dtates regarding how this issue is to be resolved and left an uncertainty for both the States and their armed forces as to when a certain conduct could make the states liable in front of the ECtHR. In the absence of consistent rulings from the ECtHR the 5
incentives for the States to find ways around the obligations in the convention could
Szucs, A., ’NATO plans on supporting Turke’s Efforts in Syria NATO secretary-general presented 2019 1
report featuring public perception on military alliance for first time’ Anadolu Agency (Brussels, 19 March 2020) < https://www.aa.com.tr/en/europe/nato-plans-on-supporting-turkey-s-efforts-in-syria/1771970 > Accessed 7 April 2020.
Metha A., Gould, J., ’Trump wants NATO to be more involved in the Middle East. That may take some 2
convincing’ Defense News (Washington, 8 January 2020) <https://www.defensenews.com/smr/
nato-2020-defined/2020/01/08/trump-wants-nato-to-be-more-involved-in-the-middle-east-that-may-take-some-convincing/ and https://www.dw.com/en/germany-defends-vision-of-international-security-zone-in-syria/a-50955092 > Accessed 7 April 2020.
Wallace, S., The Application of the European Convention on Human Rights to Military Operations p. 1. 3
Ibid p. 13. 4
increase. For example by utilizing international organizations such as NATO for achieving security objectives extraterritorially. Should this be the case, and this meaning that the acts within NATO would not be attributable to the contracting states, then it would mean that there exists a large gap in the human rights protection that is offered by the ECHR. Furthermore it would give rise to questions such as if the convention de facto is an effective instrument for human rights protection?
The question of to what extent contracting states’ obligations under the ECRH applies when contracting states conduct themselves through international organizations is up to debate. The answer to this question could potentially be both a hindrance and an opportunity for consensus organizations such as NATO. In NATO the question of interoperability i.e opportunity for the National Contributing Forces (NCF) to work efficiently together had been declared to be one of the most important aspects in NATOs future warfare concept. Amongst legal advisors within NATO there is a shared view 6
that the issue of interoperability also extends into the legal realm of operations. In 7
NATO 28 out of 30 Allies are Contracting parties to the ECHR and there are a lot of different legal opinions on what rules are applicable when the organization is conducting operations abroad with the Alliance forces. While the USA for example 8
does not acknowledge that human rights are extraterritorially applicable Denmark is of the view that its representatives have to make sure that their decisions in the North Atlantic Counsel (NAC) are conducted in accordance with their legal obligations under the ECHR. This means that the possibility of legal differences in how NATO forces can 9
apply the use of force could depend on what NCF conducts the specific mission. Something that potentially could diminish the effectiveness of the organization and reduce the possibility of burden sharing within the organization with potential risk of damaging the transatlantic relationship between North America and Europe.
Cathcart, B, DRAFT 2.0 West Point Lieber Institute Workshop, Coalition Warfare and the Law of 6
Armed Conflict in2040 p. 6.
Hill, S.; Lemetayer, D., Legal Issues of Multinational Military Operations: An Alliance Perspective, 7
Mil. L. & L. War Rev., Vol. 55 (2016), 13, p.14.
Abbot, K., Scope of the law in armed conflict, A brief overview of legal interoperability challenges for 8
NATO arising from the interrelationship between IHL and IHRL in light of the European Convention on Human Rights International Review of the Red Cross (2015), 96 (No. 893), 107. pp. 113-114.
See for example Danish Ministry of Defence, Military Manual on international law relevant to Danish 9
However it could also be argued that should the ECHR be applicable on Contracting States acts in international organizations the interoperability challenge NATO would face would be neither new nor more problematic than the current issues of legal interoperability. Rather it could be argued that the issue of legal interoperability could 10
be solved if the ECHR would apply to contracting states´ actions by giving a common legal paradigm to work out interoperability issues from. In previous operations certain TCN has induced caveats or red cards for how their NCF may act under NATO command. As such, these legal differences have been solved by focusing more on 11
adopting informal policies where only some have developed into NATO doctrine. This 12
has meant that the Allies of NATO have retained separate legal regimes that their forces comply with, meaning that the Alliance´s possibility to react in a coordinated manner to new threats could be argued to be impaired due to this legal discrepancy. Some authors have indeed claimed that this approach of solving practical issues instead of achieving legal consensus in use of force criterias is not true legal interoperability. By solving 13
the question of the legal obligations for contracting states´ acts in NATO it would arguably also be possible to aid the organization in enhancing its capabilities and lay the foundation for legal interoperability.
1.2 Purpose of the study
The purpose of this thesis is to investigate the extent of the ECHR-Allies’ obligations towards the convention when deciding and participating in NATO operations and how this affects the legal interoperability of the Alliance. Accordingly, this thesis will deal with the responsibility of these ECHR-Allies for NATO operations, which are defined here as those operations conducted under the command and control of the Alliance and limited to collective defense operations, peace enforcement and peace operations. The answer to this question will reveal if the ECHR is a effective instrument for the
Abbot, K., Scope of the law in armed conflict, A brief overview of legal interoperability challenges for 10
NATO arising from the interrelationship between IHL and IHRL in light of the European Convention on Human Rights International Review of the Red Cross (2015), 96 (No. 893), 107. pp. 113-114.
Zwanenburg, M., North Atlantic Treaty Organization-Led Operations, in Nollkaemper, A., Plakkefalos, 11
I., The Practice of Shared Responsibility in International law (Eds), (2017), 639, p.647.
Hill, S., Current International Law Challenges Facing NATO, NATO LEGAL GAZETTE, Issue 39 12
(2019) 5. pp. 10-11.
See for example Cathcart, B.,DRAFT 2.0 West Point Lieber Institute Workshop,Coalition Warfare and 13
protection of human rights in international organizations and whether the current methods of NATO to ensure legal interoperability in operations is sufficient to address the potential problems that the ECHR might create.The answer of these question will furthermore give an insight on the importance of regional human rights courts to interpret treaty obligations realistically and to be consistent with their jurisprudence and the meaning and scope of human rights.
1.3 Delimitations
The thesis will not examine the possibility of the ECHR effecting NATO as an international organization directly. States are still considered to be the primary subjects of international law and the rules for State responsibility are the ones most developed. This thesis will not look into the question if NATO has a separate legal personality from its member states. This will instead it be presumed. The reason for this is primarily that the thesis object of study is the ECHR-Allies obligations under the ECHR. Furthermore NATO itself considers that it has a legal personality and scholars already argue for this to be the case. This view has been confirmed by the ECtHR. Since NATO is not a 14 15
member of the ECHR the ECtHR would find NATO ratione personae. 16
Furthermore NATO as an international organization is still to a large extent an instrument of the Allies. NATO, as will be discussed further down, is a consensus organization, and the Allies are coordinating the organization in line with agreements in the Military Committee (MC), Political Committee (PC) and in NAC. As NATO does not have any armed forces of its own it is furthermore dependent on the Allies’ forces to conduct military operations. Therefore despite the fact that NATO has a separate legal 17
personality from its member states, every Ally still has the potential of exercising a high degree of control over the organization.
Despite the fact that this is focused on state responsibility in NATO for the ECHR and its effects on the legal interoperability of the Alliance, other international organizations,
Zwanenburg, M., North Atlantic Treaty Organization-Led Operations, in Nollkaemper, A., Plakkefalos, 14
for example the EU and the UN are also involved in military operations. Although NATO is not identical to other international organizations, some of the conclusions made in this thesis may be equally valid to some other international organizations with members that have treaty obligations under the ECHR such as the EU.
As stated in the introduction the relationship between International Humanitarian Law (IHL) and the ECHR in International Armed Conflicts (IAC) and Non-International Armed Conflicts (NIAC) is disputed. The ECtHR’s jurisprudence has provided different answers to this question and there is much scholarly debate regarding the subject. Although the answer to this question would likely impact the effect the ECHR would have on both attribution of responsibility and legal interoperability issues in NATO it is beyond the scope of this essay. The answers to this thesis question regarding attribution could however prove to be a good starting point for further investigation into the relationship between IHL and the ECHR.
1.4 Outline of the thesis
After having answered these two subquestions, the thesis will discuss whether a legal gap exists in the ECHRs protection concerning ECHR-Allies’ acts and omissions in NATO and if the ECHR has an effect on the legal interoperability in NATO. Should the convention have an effect on the legal interoperability of the Alliance, the thesis will then examine possible solutions for NATO to solve this problem. This is done in section 4 of the thesis.
1.5 The ECtHR legal method and sources used in this thesis
1.5.1 Sources in this thesis
The Statute of the International Criminal Court (ICJ) lists the sources of international law. Article 38 of the statute states that there are four sources enumerated: international conventions, international custom, general principles of law recognized by civilized nations and, as a subsidiary source, judicial decisions and the teachings of the most highly qualified publicists of the various nations. These primary sources of international law is to be interpreted in accordance with the Vienna Convention on the Law of Treaties (VCLT).
International responsibility of international organizations is a topic that is not yet fully developed in international law, despite the adoption of the Articles on Responsibility for International Organizations (ARIO) by the ILC in 2011. To date, there is only little State practice and there are only few clearly developed principles of law in that field. Despite these limitations, the Articles are still an attempt by the ILC to codify the general rules for attribution regarding states and international organizations which give them enough interpretive value to with proper justification serve as a starting point for analyzing the international responsibility of the ECHR-Allies in NATO. The ECtHR has furthermore made references to both the ARSIWA rules and the ARIO rules in its case law. 18
Therefore it can be inferred that the rules are considered as a valid source for regulating the ECHRs scope in so far as the specific rule can be applied in line with the special circumstances of a human rights treaty.
See for example Bherami and Behrami v. France and Saramati v. France, Germany and Norway (dec.), 18
The study also relies on NATO policy, doctrine and operating procedures. The preparation of the thesis has taken place through collection and critical analysis of documents, legal texts, jurisprudence of the ECtHR, academic publications as well as other information.
1.5.2 Application of international law in the ECHR case law
The ECtHR interprets the articles of the convention in accordance with the principles of treaty interpretation formulated in article 31 and 32 of the VCLT. Article 31 (1) states that the general rule of treaty interpretation is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. Article 32 concerns the usage of supplementary means of interpretation, restricting reliance on such sources as follows:
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.
The court has to take into account “any relevant rules of international law applicable in the relations between the parties” in accordance with Aricle 31. In the ECtHR:s jurisprudence this means that the principles underlying the ECHR cannot be interpreted and applied in a vacuum. State responsibility in NATO must therefore be assessed in conformity with the governing principles of international law, although it must remain mindful of the Convention’s special character as a human rights treaty. Furthermore it 19
should be interpreted as far as possible in harmony with other principles of international law of which it forms part. 20
To interpret the ECHR based on the circumstances of the conventions conclusion is difficult given that the preparatory works of the convention or travaux préparatories are
Loizidou v. Turkey, [GC] App. No. 15318/89 (ECtHR, Judgement of 28 of July 1998) §§ 43 and 52. 19
Al-Adsani v. the United Kingdom, [GC], App. No. 35763 (ECtHR, Judgement of 21 November 2001) § 20
uninformative and does not necessarily represent the will of the current parties given that a majority of the present signatories where not drafters of the convention. For 21
these reasons, the court places much less emphasis on the historical context of a right. 22
In addition to the court having to rely on these articles when interpreting the ECHR, it further has to also account for the fact that the convention is a living instrument that must effectively guarantee the rights of the convention in light of present day conditions. Finally the court is not bound by its previous jurisprudence stare decisis 23
even though there ought to be valid reasons to be consistent since it would otherwise make the conventional rights harder to implement for the signatories of the States.
1.6 The Purpose of the ECHR treaty
In order to make a correct judgement on the scope of States´ responsibilities in NATO towards the ECHR it is important to make clear what the meaning and scope of the convention is. This theoretical underpinning is vital in order to understand and make a correct judgement de lege lata.
The ECHR was adopted in 1950 in the wake of the second world war to safeguard individual rights and freedoms that was seen as inherently given to the individual on account of their humanity. It should be noted, that while there are different views on 24
the extent and content of human rights, there still is a certain amount of theories of justice that are incompatible with these ideas. For example, the idea of human rights is incompatible with instrumental theories behind rights that necessitate rights on mutually advantageous agreements between different actors such as States and citizens. Even 25
though the result could be the same, universal human rights do not originate from these relationships. Instead human rights originate from human beings on account of them 26
being human. 27
Cameron, I., Introduction to the European Convention on Human Rights p.80. 21
Cameron, I., Introduction to the European Convention on Human Rights p. 80. 22
Tyrer v. United Kingdom, App. No. 5856/72 A/26, [1978] ECHR 2, (1980) 2 EHRR 1, IHRL 17 23
(ECtHR, Judgement of 25 April 1978) § 31.
Einarsen, T., Gibney, M., Roxstrom, E., The NATO Bombing Case (Banković Et Al. v. Belgium Et Al.) 24
and The limits of Western Human Rights Protection, Boston University International Law Journal Volume
The idea of human rights implies that the historical context to the Convention was a genuine concern for the well being of human beings at large, not the advancement of the contracting states’ self-interest. Consequently, by adhering to the Convention the 28
signatories commit themselves to the idea that there are certain things ought not to be done towards humans, as well as there being certain things that ought to be done for every human being on account of their humanity. When interpreting the articles of the 29
ECHR it is important to understand that this is the object of the convention. In the preamble note 6 for example the convention is meant to ”take the first steps for the collective enforcement” of human rights. 30
2
Jurisdiction according to the ECtHR
2.1 Importance of jurisdiction
In article 2 of the ARSIWA an international wrongful act of a state entails that state’s responsibility when conduct consisting of an action or omission: (a) Is attributable to the State under international law; and (b) Constitutes a breach of an international obligation or the State. State jurisdiction under human rights treaties fall under Article 2 (b).
The first thing that thus needs to be decided in order to answer the question of the ECHR’s effect on NATO’s operations is whether the jurisdiction of the state extents to extraterritorial military operations and acts and omissions of the state in NAC. The exercise of jurisdiction is a necessary condition for a contracting state to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms in the ECHR. It is important to note that 31
jurisdiction in human rights treaties such as the ECHR is jurisdiction of the contracting state and not of the Court. 32
When establishing whether a state has jurisdiction, the court investigates whether the act in question is attributable to a contracting state Ratione personae, whether that act was conducted after the state had become signatory to the convention ratione temporis and finally if the act has taken place where the contracting state has exercised jurisdiction ratione loci. It should be noted that it is widely viewed that the ECHR is primarily 33
territorial and that only in exceptional cases does the court recognize extraterritorial jurisdiction. Despite this the extent of extraterritorial jurisdiction varies in the courts 34
jurisprudence. Most notably as will be shown, the reasoning of the ECtHR and the Commission can be separated into a pre Banković and a post Banković jurisdiction.
2.2 The facto control jurisdiction
The original understanding of the extraterritorial concept of jurisdiction in Article 1 was established by the European Commission for Human Rights in Cyprus v Turkey. 35
Ilaşcu and Others v. Moldova and Russia [GC], App No. 48787/99, (ECtHR, Judgement of 8 July 2004) 31
§ 311.
Milanovic, M., Extraterritorial Application of Human Rights Treaties Law, Principles, and Policy p. 19. 32
Ibid. 33
Ibid p. 20. 34
Cyprus v. Turkey, App. No. 6780/74, 6950/75, 2 (Eur. Comm’n H.R., Decision on admissibility of 26 35
The European Commission for Human Rights had to establish whether the application was inadmissible ratio loci because the alleged violations to the ECHR had taken place outside of the territory of Turkey. The Commission stated that State responsibility in light of the purpose of the ECHR might be incurred by acts of the state (including acts by diplomatic or consular agents and members of the armed forces) whose actions affects people or property outside the national territory. According to the commission 36
the reasoning behind this was that such agents of the state remain under the State’s jurisdiction when abroad and that they bring persons and property within this jurisdiction to the extent that they exercise authority over them. In the opinion of the 37
Commission, the contracting state’s negative obligations applied whenever that state asserts de facto control over a person or his/ her property. The line of reasoning in the 38
Case is in line with the object and purpose of human rights in the scope of negative obligations.
In Cyprus, the court seems to have adhered to the notion that if a state has the power to not do something towards a human being, then it also has a responsibility not to do it. The negative protection from a state thus applied universally in accordance with the meaning of universal human rights. This was in effect based on the control the state agents exercised over the individuals (personal control).
The above notion was further developed in the Loizidou case. In the case, an applicant claimed among other things that Turkey’s invasion of Northern Cyprus in 1974 and the continuous occupation of that territory by Turkish Armed Forces meant that the applicant was unable to access her property in violation of Article 8 of the ECHR and Article 1 of Protocol No. 1 (P1-1). Turkey objected that the claim should not be 39
admissible. Turkey based this firstly on the the fact that the violations took place outside Turkey’s jurisdiction ratio loci, secondly that the acts ought to be attributed to the Turkish Republic of Northern Cyprus . Turkey argued that the Turkish Republic of 40
Ibid. 36 Ibid. 37 Ibid. 38
Loizidou v. Turkey, [GC] App. No. 15318/89 (ECtHR, Judgement of 28 of July 1998) § 28. 39
Loizidou v. Turkey, Volume 310 (ser A.) App. No. 15318/89, (ECtHR, preliminary objections 23 March 40
Northern Cyprus was a sovereign state independent from Turkey and that because the Turkish Republic of Northern Cyprus acted on its own authority and independently, it´s acts and policies could not be attributed to Turkey. Turkey argued that the Turkish 41
armed forces on Northern Cyprus where acting exclusively in conjunction and on behalf of the Turkish Republic of Northern Cyprus and thus that they where under the effective control of the Turkish Republic of Northern Cyprus. 42
The ECtHR reaffirmed that jurisdiction in Article 1 was not limited to a contracting state’s territory but could apply where acts of state authorities produce effects outside the state’s own territory. The ECHR is according to the court supposed to be viewed as 43
a ”European Constitutional Instrument” that is aimed at achieving greater unity in the maintenance and further realization of human rights. Something that according to the 44
ECtHR meant that the convention requires an effective enforcement mechanism. To 45
limit the ECHR territorially would thus have had to be expressively provided for in the convention given the effect it would have had for the fulfillment of the object and scope of the convention. 46
In Loizidou v. Turkey the court noted that responsibility of a contracting state under the convention may exist when as a consequence of military action, lawful or unlawful, that State exercise effective control over an area outside its national territory (territorial control). In such instances the ECtHR argued that the obligation to secure the rights 47
and freedoms set out in the convention derives from the fact that such control could be exercised directly by that states forces or by the subordinate local administration. 48
The Loizidou case reaffirms the notion that state obligations in relation to negative obligations mean that a state is not allowed to through acts subject individuals to its power in a way that violates these individuals’ rights. Furthermore, it confirms that
positive rights extraterritorially exist on territory where the state has asserted such effective control that it can be presumed to also have the ability to protect individuals actions of third parties.
The ECtHR implied in the Loizidou case that where a State has seized effective control of a territory it also has the possibility and thereby responsibility of securing positive obligations i.e protection of individuals rights from third parties. The court noted that 49
the troop numbers Turkey maintained on Northen Cyprus meant that the Turkish Republic of Northern Cyprus survived as a result of the Turkish support and that they therefore where subordinate to Turkey. This implicitly Turkey had such a degree of 50
influence over the Turkish Republic of Northern Cyprus that it could be argued that if Turkey wanted to it could have altered both the policies and actions of the Turkish Republic of Northern Cyprus. This meant that the court did not have to have to establish whether a violation of the convention was excessed by the forces of the Turkish Republic of Northern Cyprus or by Turkey. Turkey was subsequently found to have 51
violated the applicant’s rights in article 8 and article 1 of protocol No 1. 52
This position was further accepted in the judgement of Cyprus v. Turkey where it was established that having effective overall control over a territory means that responsibility cannot be confined to the acts of its own soldiers or officials but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. The court also held that where effective control 53
exists, jurisdiction must extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols, which the state has ratified and that violations of these on that territory are imputable to the contracting state. 54
2.3 The Banković limitation on jurisdiction
The notion of de facto control over persons or territory as a test of jurisdiction is not something that the court has consistently upheld. A particularly controversial
Loizidou v. Turkey, [GC] App. No. 15318/89 (ECtHR, Judgement of 28 of July 1998), § 56. 49 Ibid § 56. 50 Ibid. 51 Ibid § 64. 52
Cyprus v. Turkey, [GC] App. No. 25781/94, (ECtHR Judgement of 10 May 2001). 53
development was the court’s concept of legal space (espace juridique) in the Banković case. The case concerned whether the bombing of a TV-station in Belgrade meant that 55
the dead and injured came within the ECHR-Allies’ jurisdiction. The court rejected 56
this and instead declared that the notion of jurisdiction in the convention is primarily territorial. The convention according to the court is a multilateral treaty operating in an essentially regional context in the legal space of the Contracting States’, which the Federal Republic of Yugoslavia was outside of. A notable distinction between the 57
circumstances in Banković and the Cyprus case according to the court was that the occupied parts of Cyprus was a territory within this legal space of the ECHR where individuals previously had been under the protection of the convention. The ECtHR 58
based this interpretation of jurisdiction on the fact that it tried to interpret jurisdiction in line with ordinary meaning in general international law. The notion of jurisdiction in 59
general international law was according to the court primarily territorial and only in exceptional cases was the notion of jurisdiction to be interpreted to apply extraterritorially. The ECtHR noted that it had done so where there existed either de 60
jure jurisdiction, or military occupation (by another contracting state). 61
De jure jurisdiction existed according to the court where the contracting states had legal competence. This interpretation of jurisdiction implied that attribution of 62
responsibility for a states conduct under the convention is based on whether or not the action of the state was lawful in accordance with international law. Put differently the 63
ECtHR seems to claim that a failure of a state to comply with general principles of international law when violating a convention right may well be in that state’s favor. 64
Banković, Stojanovic, Stoimedovski, Joksimovic and Sukovic v. Belgium, the Czech Republic, 55
Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey, and the United Kingdom, [GC] App. No. 52207/99, (Decision on admissibility of 12 December 2001) (hereinafter Banković).
Ibid §§ 8, 10, 11, 28, 80. 56 Ibid § 80. 57 Ibid § 80. 58 Ibid § 59. 59 Ibid § 71. 60 Ibid §§ 71, 73. 61
Einarsen, T., Gibney, M., Roxstrom, E., The NATO Bombing Case (Banković Et Al. v. Belgium Et Al.) 62
and The limits of Western Human Rights Protection, Boston University International Law Journal Volume
23:55 (2005) 55. p. 88. Ibid.
Although it could be argued that passivity from a state should not be considered as an omission be where that state lacks possibilities to interfere in a particular situation it is hard to reconcile that this would also mean that a state is not liable for its own actions extraterritorially. Not only is it hard to reconcile logically, it is also hard to see how this restrictive interpretation of jurisdiction could ever be in line with the object and scope of a human rights treaty.
It should be noted that de jure jurisdiction as a prerequisite for jurisdiction is not in line with the court’s earlier case law. In the Stocké and Öcalan cases, the fact that a contracting state had violated a international law norm when conducting an act that was claimed to violate Article 5 meant that a presumption existed that that conduct was in violation of the convention. Furthermore, the unlawfulness of the occupation of 65
Northern Cyprus in no way impacted on the obligation of Turkey to secure the convention rights on the occupied territory.
According to the court in Banković military occupation was another instance where extraterritorial jurisdiction could exist. In Banković the court reinterpreted the notion of effective control in the Louizidou case and argued that the obligation to respect negative rights do not arise until the state exercises effective overall control of a territory. As noted above, that is not what was implied in the mentioned case. To apply this interpretation essentially means that a contracting state can violate individual rights abroad as long as the state does not exercise effective control over the territory. This notion, not only without sufficient backing in the court´s case law, arguably leads to an absurd result where human rights are not based on every human beings universal value but rather on that individual’s connection to Europe.
2.4 Post Banković jurisdiction
The ECtHR:s concept of jurisdiction after Banković has been inconsistent. The limitation of espace juridique has not effectively been refuted as will be shown below. Furthermore, the notions of de facto control, de jure jurisdiction and effective territorial control has been applied with little consistency in different cases after Banković and
Stocke ́ v. Germany, App. No. 11755/85, Rep. (ser. A) No. 199, (ECtHR, Judgement of 19 Mars 1991) p. 65
without much rationale. Something that arguably leads to an absurd situation regarding the extent of human rights protection in the ECHR. The different models of jurisdiction post Banković appear to be interpreted more at random than on the basis of actual legal arguments. In Pad v. Turkey for example the ECtHR found that it did not have to examine if a Turkish helicopter had fired on individuals within Turkish territory or on Iranian territory since the firing of the helicopter’s weapon systems was sufficient to create a jurisdictional link. This application of de facto control jurisdiction was 66
followed in Andreou v. Turkey where an applicant had been shot from the Occupied northern part of Cyprus while being on the other side of the border. The ECtHR noted that despite the applicant sustaining her injuries on a territory where Turkey did not exercise control the act of firing was sufficient to bring the applicant within the jurisdiction of Turkey. It should be noted that the ECtHR in that case noted that a 67
difference from Banković was the fact that she was on territory previously within the jurisdiction of Cyprus (i.e the UN buffer zone) and thus was on territory covered by the convention. However in the Issa case Turkish officials were accused of deliberately 68
mutilating and killing individuals on Iraqi territory without this falling within Turkey’s jurisdiction. This was due to the fact that the court did not find that the applicants had 69
proved that Turkey exercised ”temporary effective overall control” of the particular territory of Iraq where the events occurred. Since the applicant’s, according to the 70
court, did not prove that Turkish forces had operated in the territory where the applicant’s family members were killed the court ruled that Turkey did not have jurisdiction at that territory of Iraq. 71
The interpretation of de facto jurisdiction used by the Chamber of the Court was furthermore opposed by the Grand Chamber, which has more authority in the Strasbourg system, in the Medvedyev case. In that case, a Cambodian ship was boarded and the crew was detained by French forces. The ECtHR noted that jurisdiction in Article 1 did not include instantaneous extraterritorial act since the convention did not
Pad v. Turkey App. No. 60167/00, (ECtHR, Judgement of 28 June 2007) § 54. 66
Andreou v. Turkey App. No. 45653/99, (ECtHR, Decision on admissibility of 3 June 2008) § 3 c. 67
Ibid. 68
Issa v. Turkey, App. No. 31821/96, (ECtHR, Decision on admissibility of 30 May 2000) § 77. 69
Ibid. 70
admit a ”cause and effect” notion, thereby reaffirming the concept of jurisdiction used in Banković. In Al Skeini v. United Kingdom the Grand Chamber of the ECtHR 72
attempted to resolve some of this confusion by explaining in what situations jurisdiction exists extraterritorially. First the ECtHR noted that the convention was primarily 73
territorial and that only extraterritorial jurisdiction only exists in exceptional cases. 74
Furthermore, the court noted that where a state has effective control over territory it also has extraterritorial jurisdiction. The court also recited three situations where 75
jurisdiction could be said to be applied abroad through the conduct of state agents. Firstly the court noted that jurisdiction of the state exists where diplomats or consular agents exert authority and control over individuals. Secondly the court concluded that 76
jurisdiction exists where a state exercises some of the public powers normally to be exercised by the other government and thirdly where state agents use force on an individual. The court used the last example to determine that British soldiers who had 77
brought the killed applicants’ family members under the state’s authority and control. 78
What was essentially applied was thus a new semi model of jurisdiction that combines spatial notions of jurisdiction and personal jurisdiction models.
Arguably the ECtHR in Al Skeini muddied the jurisprudence by using yet another model of jurisdiction that essentially requirers both de facto control over an individual and exercise by the state of public powers normally to be excessed by the other state. 79
While the court denied the conclusion in Banković that a state cannot have extraterritorial jurisdiction outside Europe, this new form of personal plus jurisdiction raises questions as to in what situations acts of state agents abroad bring individuals under the jurisdiction of the state. Some authors have claimed that this the personal 80
plus jurisdiction model has reintroduced the Banković through the backdoor. Despite 81
Medvedyev and others v. France [GC], App. No. 3394/03, (ECtHR, Judgement of 29 March 2010) § 72
64.
Wallace, S., The Application of the European Convention to Military Operations p. 56. 73
Al Skeini and others v. The United Kingdom [GC], App. No. 55721/07, (ECtHR, Judgement of 7 June 74 2011) §§ 131-132. Ibid § 138. 75 Ibid § 134. 76 Ibid §§ 135-136. 77 Ibid 149-150. 78
Wallace, S., The Application of the European Convention to Military Operations p. 56 79
Ibid p. 59. 80
the critique, this model of jurisdiction has been applied by the court in several cases since Al Skeini. 82
2.4 Resolving the inconsistent jurisprudence in line with the meaning
and scope of the convention
2.4.1 Finding a consistent method
The ECtHR:s interpretation of jurisdiction has altered from the previous model of jurisdiction as exercise of de facto power to a interpretation of jurisdictional concept that is inherently inconsistent and where all the different models cannot be applied in a consistent manner. In order to determine the extent of jurisdiction in Article 1 it will be necessary to firstly interpret the different models of jurisdiction in accordance with the meaning and scope of the convention and then discuss whether jurisdiction is something that is created extraterritorially or if it pre exists in some situations.
The scope of the convention could be understood as obligating the contracting states to protect the convention rights with reasonable measures. The rights within the treaty were to a large extent influenced by the articles in the UDHR that is now considered to be Customary law. While this is the case, the Convention only encapsulates a certain 83
amount of the rights´ in the UDHR, but it nevertheless enforces these rights with legal obligations. Due to the fact that only European states and entities can be signatories to the convention, it is in this sense regional. However given that the rights the convention intends to safeguard is supposed to be viewed as universal it can be presumed that the obligations to respect these rights should not stop at a State’s borders. 84
Despite that de facto power could be used as a general test for determining jurisdiction the ECtHR in several modern cases has instead relied upon personal plus model of jurisdiction. A logical conclusion of this is that the ECtHR finds that some situations i.e. instantaneous bombings by airplanes and killing with automatic rifles by a state’s agents do not in all situations mean that the state exercises jurisdiction. In the Pisari case the court stated that when State servicemen are deployed in another State’s territory, the
Se for example Pisari v. Moldovia and Russia App. No. 42139/12 ECHR 137, (ECtHR, Judgement of 82
21 April 2015) and Jaloud v. the Netherlands [GC], App. No. 47708/08 (ECtHR, Judgement of 20 November 2014).
Cameron, I., Introduction to the European convention on Human Rights p. 27. 83
extraterritorial force they use may in some instances extend a State’s jurisdiction to cover those affected by their servicemen’s actions. In both Al Skeini and the Jaloud 85
case the fact that the state’s agents fired on civilians was evidently not on its own enough for the ECtHR to simply state that the agents had produced effects outside the territories of the states and thereby creating a jurisdictional link. Instead the fact that the nations exercised governmental functions normally to be exercised by the government of Iraq meant that the nations exercised jurisdiction. This implies that the court 86
reverted to what it viewed as the concept of jurisdiction in international law and how it applies with the notion of state sovereignty. Meaning that a state would violate another nation’s sovereignty if it were to exercise jurisdiction on that states territory. A rationale that is similar to that used in Banković. The problem with applying this interpretation of jurisdiction is threefold.
Firstly if a state can only exercise jurisdiction in the territory of another state where the state has de jure jurisdiction according to general international law then illegal acts of the state could never be attributable to that state. This would essentially lead to an application of the convention that would not safeguard individuals from acts that the state conducts without legal authority (for example assassination or torture). It is hard 87
to argue that this application of jurisdiction could ever be in line with the meaning and scope of a human rights treaty. This narrow interpretation do not take into account that jurisdiction in general international law has several different meanings depending on whether it regards ICL, IHL or HRL. Comparatively jurisdiction in other human rights 88
treaties such as the ICCPR means exercise of de facto power. 89
Secondly it is hard to convincingly argue that it would be deemed as less of a violation of a state’s sovereignty to conduct operations on its territory and at the same time deny
Pisari v. Moldovia and Russia App. No. 42139/12 § 33 (2015). 85
Al Skeini and others v. The United Kingdom [GC], App. No. 55721/07, (ECtHR, Judgement of 7 June 86
2011) § 149-150; and Jaloud v. the Netherlands [GC], App. No. 47708/08 (ECtHR, Judgement of 20 November 2014) § 152.
the state’s citizens the opportunity to seek remedy for human rights violations that occur as a consequence of that violation.
Thirdly to apply this interpretation arguably creates a manifestly absurd result for the ECHR:s human rights protection by accepting the evident inconsistencies. Given that the court in Al-skeini and Jaloud acknowledged the possibility of jurisdiction being exercised by the state through de facto power over territory or individuals it would by not applying this criteria in future cases similar to Al skeini and Jaloud imply that instantaneous shootings by infantry and bombing by airplanes would somehow be a different form of exercise of authority over an individual than an attack done with a helicopter as in Pad. The notion that bombings do not produce an lasting effect outside the nations territory is disregarding the fact that bombs can kill years after a airplane has drooped them. In the Behrami case an applicant´s son died a year after the NATO bombings of the FRY because he had played with his friends too close to an undetonated cluster bomb. If this is not an effect that is produced by the conduct of a 90
state agent then it is hard to interpret what could ever constitute such an effect.
Therefore, to interpret jurisdiction as existing where a state exercises de facto power over a person even where that is done by shooting at him ought to still be regarded as the most consistent model of state jurisdiction in the ECHR if one is to be true to the meaning and scope of the convention in so far as negative obligations are concerned.
2.4.2 Jurisdictional links preexisting
In several cases of the ECtHR the court states that ”a jurisdictional link” is created rather than stating that it exist in situations where the state’s agents acts violate individuals rights. This implies that the contracting states do not owe any obligations to uphold the human rights in the ECHR towards people before this jurisdiction is created. Human rights treaties generally contain both positive and negative obligations. Article 91
2 in the ECHR for example will both prohibit a state from using its agents to kill a n individual while in certain circumstances require the state to protect the individual from
Behrami and Saramati v. France § 5. 90
the lethal threats from others. Regarding positive rights the extent of these could 92
consistently be interpreted to being limited in scope by the sovereignty of states in accordance with the ordinary meaning of general international law. The reason behind 93
this is simple: a state should not be forced to violate international law in order to comply with its legal obligations under the convention. Furthermore, positive 94
obligations is limited by what fairly could be asked from the contracting state and in accordance with what would be proportional. It would be neither feasible nor practical 95
for contracting states to have to guarantee human rights to every person in the world. 96
Despite this is is hard to logically accept that jurisdiction needs to be created regarding negative obligations. A possible reason behind the courts use of language regarding jurisdictional links is that there has been a mix up between the concept of jurisdiction and that of state responsibility. The ECtHR has had a history of having both terminological and conceptual inconsistencies with regards to this question. It follows 97
that to apply these different concepts through the same test is not logically possible since the same test cannot establish both what obligations a state has and whether a breach of that obligation is attributable to that state. 98
Negative obligations, or the obligations of contracting states not to deprive people of what they have a right to, reasonably should be interpreted to be owed universal to every human being. In cases where negative obligations have been violated, the applicants do not argue that the contracting state has failed to protect for example their relatives’ right not to be killed, but rather that the State had actively caused their relatives’ deaths. In light of the meaning and scope of the ECHR it seems reasonable
Ibid. 92
Einarsen, T., Gibney, M., Roxstrom, E., The NATO Bombing Case (Banković Et Al. v. Belgium Et Al.) 93
and The limits of Western Human Rights Protection, Boston University International Law Journal Volume
23:55 (2005) 55. p. 73. Ibid p. 73-74. 94 Ibid p. 73. 95 Ibid. 96
Milanovic, M., Extraterritorial Application of Human Rights Treaties Law, Principles, and Policy p. 41. 97
that a person is within a state’s where that person is within or subject to that State’s exercised power. 99
A state has arguably exercised power over an individual where it has produced a certain outcome. This interpretation of jurisdiction in Article 1 would mean that a person is 100
within a contracting state’s jurisdiction if that state has the power (intentionally, knowingly or negligently) to affect one or several of that person’s human rights. For 101
example, if state A has the power to kill P with a drone attack in state B:s territory, then P would be within state A:s jurisdiction even though P is outside of A:s territory. State A thereby has an obligation to refrain from using one of its drones to kill P.
Even though it is not certain that State A does something towards P during time T1, P would still have to be considered to be within state A:s jurisdiction, since A has a capacity to affect P:s right to life and thereby would have an obligation not to use this capacity. If state were to kill P at T2, then that would then mean that state a disregarded its pre-existing jurisdictional obligation could at that time be held liable for that act in accordance with ARSIWA Article 2.
A universal right cannot be guaranteed unless the negative duty not to infringe on that right is also universal. Therefore, every state that has ratified a human rights treaty has implicitly agreed to not intentionally or recklessly infringe on an individual’s right, no matter where this act has taken place. This obligation exists whether or not a state does something or not, but only once the state does something can the state be held liable under the ARSIWA Article 2.
2.5 Conclusion
In summary, when a contracting state takes de facto control of a person, it exercises jurisdiction in accordance with Article 1. A logical conclusion regarding the two notions of personal and territorial control is that they complement each other. Namely a state
Einarsen, T., Gibney, M., Roxstrom, E., The NATO Bombing Case (Banković Et Al. v. Belgium Et Al.) 99
and The limits of Western Human Rights Protection, Boston University International Law Journal Volume
23:55 (2005) 55.(2005) 55. p. 73-74. Ibid p. 74.
that has the capacity of personal control over an individual must also guarantee that it does not violate that individual’s negative rights, directly or indirectly.
3
Member States´ responsibility according to international
law
3.1 State responsibility in international organizations
Having established the extent of a state jurisdiction under the ECHR a secondary question is in what situations a contracting state can be attributed for the acts of NATO as well as the acts of the forces of the Alliance that are under the operational command and control of NATO. Jurisdiction under Article 1 is merely a threshold criterion. 102
Additionally an act or omission must be attributable to a contracting state. In ARSIWA Article 1 the general principles of State responsibility are formulated. As a general rule, a State is liable only for its own acts or omissions. Furthermore, every internationally wrongful act of a State entails the international responsibility of that State. This means that both action and inaction could trigger the responsibility of the State. 103
An internationally wrongful act is committed when, according to ARSIWA Article 2, an act or omission is attributable to the State under international law, and it constitutes a breach of an international obligation of the State. This means that if an act cannot be attributable to the State, then it can never constitute a breach of that States international obligation. This means that if the actions of NATO or the forces under NATO cannot be attributable to the ECHR-Allies, then those acts do no constitute a breach of their obligations under the convention.
In the context of NATO, discussions concerning international responsibility are often occasioned by military operations led by the organization. There are two categories in 104
which questions of responsibility could come into question. The first is is where ECHR-Allies’ agents use force in NATO-led operations. 105
The second category is where responsibility can be inferred from the ECHR-Allies participation in the NATO decision making process. In NATO’s highest political body, NAC, decisions are taken by the Allies in consensus. This means in effect that while
Ilaşcu and Others v. Moldova and Russia [GC], App No. 48787/99, (ECtHR, Judgement of 8 July 102
2004) § 311.
Abass, A., Complete International Law - Text, Cases and Materials p. 244. 103
Zwanenburg, M., North Atlantic Treaty Organization-Led Operations, in Nollkaemper, A., 104
Plakkefalos, I., The Practice of Shared Responsibility in International law (Eds), (2017), 639, p.641. Ibid p. 641.
there exists no voting on decisions, a member state can during the silent period oppose a decision it feels would lead to the country violating its human rights obligations. This acceptance of decision in NAC by ECHR-Allies has previously been used by applicants in different cases that have argued that this could constitute an internationally wrongful act. 106
It can be noted that the first category concerns attribution of conduct rules while the second category regards attribution of responsibility rules. Attribution of conduct rules consists of determining which party that is potentially responsible for an act while attribution of responsibility rules determine when an actor is responsible for the conduct of another entity. For this purpose, this thesis will investigate these questions 107
separately.
3.2 Attribution of responsibility
3.2.1 Responsibility in international law
It has been argued by some authors that states are responsible for acts of an international organization by being a members of it. This opinion of been expressed by Brownlie. He argues that the formation of an international organization cannot result in an ”erga omnes” limitation on member states´ responsibility, or immunity in relation to non members. This has been contested by other authors such as Higgins who has 108
remarked that if member States know that they are potentially responsible for acts of an international organization, “they will necessarily intervene in virtually all decision making” of that organization. Something that according to him would cause that 109
organizations “independent personality” to become a sham. Something that 110
according to him would make it impossible for the organization to function effectively to the detriment of the international community. 111
Ibid p. 642. 106
Fry, J., Attribution of Responsibility in Nollkaemper, A., Plakokefalos, I., Principles of Shared 107
Responsibility in International Law An Appraisal of the State of the Art (Eds) (2014) 98, p. 102-103. Brownlie, I., The Responsibility of States for the Acts of International Organizations, in Ragazzi, M, 108
International Responsibility Today (Eds) (2005), 335. p. 359.
Blocker, N., Member State Responsibility for Wrongdoings Beacon of Hope or Delusion?, 109
International Organizations law review 12 (2015) 319, p. 324-325. Ibid.
110
Higgins view of attribution of responsibility appears to be more in line with the ILC:s approach in the ARIO articles and commentaries. The primary rule of responsibility for the acts of an international organization can be found in ARIO Article 3 that states that ”Every internationally wrongful act of an international organization entails the international responsibility of that organization”. This presumes that the intention of the rules in the ARIO is to separate responsibility of states and the responsibility of international organizations. This approach of the ILC was probably in line with 112
Higgin’s argumentation to safeguard the international organization’s ability to act efficiently in so far as enabling international cooperation. This point of view however still assumes that the conduct of a international organization in exceptional instances can be attributable to the member state. According to this interpretation an act would 113
need to link the member state with the international organization’s act through a particular factual circumstance and/or conduct of the state concerned. 114
The ARIO rules concerning this exception is regulated in section five in Articles 58-62. Responsibility arising from these rules is sometimes referred to as ”indirect” 115
responsibility. It can be argued that it was this model of responsibility that the Second 116
Rapporteur Gaja was suggesting could be applied in regards to the Allies for the NATO operations in the Territory of the former Republic of Yugoslavia. In his report he noted that ”…one envisageable solution would be for the relevant conduct to be attributed both to NATO and to one or more of its member States, for instance because those States contributed to planning the military action or to carrying it out”. 117
Blocker, N., Member State Responsibility for Wrongdoings Beacon of Hope or Delusion?, 112
International Organizations law review 12 (2015) 319, p. 325.
Zwanenburg, M., North Atlantic Treaty Organization-Led Operations, in Nollkaemper, A., 113
Plakkefalos, I., The Practice of Shared Responsibility in International law (Eds), (2017), 639, p. 647. Ibid p. 647-648.
114
ILC, ’Report of the International Law Commission on the work of its sixty-third session, Draft articles 115
on the responsibility of international organizations, with commentaries’ (2011) UN Doc. A/66/10 p. 97 note (4) Commentary to Part Five.
Zwanenburg, M., North Atlantic Treaty Organization-Led Operations, in Nollkaemper, A., 116
Plakkefalos, I., The Practice of Shared Responsibility in International law (Eds), (2017), 639, p. 648. G. Gaja, Special Rapporteur, ’Second Report on Responsibility of International Organisations’, UN 117
These Articles regulate attribution of responsibility for aid and assistance, direction and control, and coercion of a international organization by a state that result in the international organization committing an international wrongful act. These Articles do not exclude that a member state in such instances can be liable for that wrongful act, the wording of the Articles do however imply that this will not occur in most instances where member states simply participates in the normal decision making process of the international organization. However despite this, the commentaries state that factual 118
context such as the size of membership and the nature of the involvement of the state will probably be decisive for when responsibility might be attributed for participation in the decision making process of the international organization. This interpretation is 119
also in line with the one NATO expressed regarding the ARIO articles. NATO has previously criticized the ARIO rules since the organization considered that the articles and associated commentary ”… do not always appear fully to contemplate the specific situation of organizations in which, owing to the nature of the activity in which it is engaged or other factors, the member States retain virtually all decision-making authority and participate on a daily basis in the governance and functioning of the organization.” 120
In NATO’s comment to the ILC ARIO articles, NATO appears to question the fundamental principle of analogizing international organization with states. Zwanenburg has remarked that NATO seems to imply that this approach is flawed and that the organization suggest that the decision making process of NATO would mean that a varying principle of attribution should apply depending on the role the member states´ play in the international organization. If the Allies always would have the possibility 121
to block a decision it would there for not be obvious that they would be able to differentiate their responsibility from that of NATO. 122
ILC, ’Report of the International Law Commission on the work of its sixty-third session, Draft articles 118
on the responsibility of international organizations, with commentaries’ (2011) UN Doc. A/66/10 p. 97 note (4) Commentary to Part Five.
Ibid. 119
ILC, Responsibility of International Organizations Comments and observations received from 120
international organizations, Documents of the sixty-third session, UN Doc. A/CN.4/637 (14 and 17 February 2011), pp. 139-140 note 1-9, NATO commentaries.
Zwanenburg, M., North Atlantic Treaty Organization-Led Operations, in Nollkaemper, A., 121
Plakkefalos, I., The Practice of Shared Responsibility in International law (Eds), (2017), 639, p. 642. Ibid. p.
