Concept of Extraterritorial Jurisdiction in the Prism of the Case Georgia V. Russia (II)

The Article concerns the concept of extraterritorial jurisdiction in the meaning of Article 1 of the European Convention of Human Rights (ECHR/the Convention) and its application in the interstate case of Georgia v. Russia (II) relating to the war of August 2008. The Article provides a critical assessment of the Judgment of the Grand Chamber of the European Court of Human Rights (ECtHR/the Court), according to which the events that occurred in the active phase of hostilities (8-12 August 2008) did not fall within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention, wich resulted in declaring this part of the interstate complaint inadmissible. The article states that the arguments based on the applicability of international humanitarian law towards international conflicts, the exclusion of spontaneous extraterritorial acts from the scope of jurisdiction, the insufficiency of causal links, and the practice of non-derogation from Article 15 of the ECHR failed to establish a coherent and convincing legal basis for the judgment concerning the active phase of the war. According to the author, the circumstances of the case readily allowed the ECtHR to recognize the extraterritorial jurisdiction of the Russian Federation based on both the spatial model (“effective control over an area”) and, especially, on the personal model (“state agent authority and control over an individual”). Moreover, the Court could have expanded the substantive scope of these two concepts or established a new, third form of extraterritorial jurisdiction. According to the article, excluding the active phase of armed conflict from the scope of responsibility and accountability of a Convention-binding state grants implicit permission for such states to act beyond their borders in ways that would be prohibited under the Convention within their own territory. The author of the article argues that the protection of human rights in Europe during armed conflicts should not remain beyond European supervision, especially when the risk of human vulnerability and the likelihood of victimization are increasing significantly due to extraterritorial military actions. The article emphasizes the essential role that the concept of causality can play in the lawful determination of a state’s extraterritorial jurisdiction. The author argues that a jurisdictional link between the affected individuals and the respondent state’s extraterritorial actions should, in principle, be recognized if there is a causal connection between those actions and the alleged violation of the rights of individuals located beyond the state’s territory, provided that this connection was reasonably foreseeable. According to the author, the foreseeability of the causal link should be recognized as a factor that gives rise to a presumption of the existence of a jurisdictional link between the state committing the act and the relevant victim; resulting in the burden of proof shifting to the respondent state. The article, among other issues, discusses the scope within which a state’s positive and negative obligations should be considered when committing an extraterritorial act concerning individuals located beyond the state’s territory who may be directly or indirectly affected by that act.