Evasion of the international law of state responsibility? The ECtHR’s jurisprudence on positive and preventive obligations under Article 3

ABSTRACT

While it is evident that the ECtHR’s main task is applying the ECHR, it is debatable whether the Court has adequate regard to general international law when considering questions left open by the ECHR. We contribute to this debate from a normative perspective. We discuss the criticism that the Court unduly evades the ARSIWA by applying an expansive positive obligations doctrine. We submit that the Court’s propensity to focus on preventive obligations is justified in substance, since it is difficult to imagine how human rights could be effectively protected without such positive obligations in a world where state, third state and private actors mingle. In this sense, the Court’s jurisprudence makes valuable contributions to the adaptation of the international legal system to changing societies. Criticism should focus less on the Court’s inclination toward positive obligations than on its pertinent methodology, which is at times less than convincing.

KEYWORDS:

• State responsibility
• fragmentation of international law
• ECHR (European Convention on Human Rights)
• positive obligations
• duty to protect
• effectiveness principle

Acknowledgments

This article is an extended version of Helen Keller’s presentation at the conference ‘The Place of the Convention in the European and International Legal Order’ (Strasbourg, 29–30 March 2017). All views expressed here are strictly personal.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Helen Keller is Professor of Public International Law at the University of Zurich and serves as a Judge at the European Court of Human Rights. Previously she was a Member of the U.N. Human Rights Committee. Her research focuses on international human rights law, paying particular attention to the European Convention on Human Rights. She has published numerous articles in international peer-reviewed journals and edited volumes, several monographs and is, inter alia, the co-editor of A Europe of Rights: the Impact of the ECHR on National Legal Systems (Oxford: Oxford University Press, 2008).

Reto Walther is a PhD candidate at the Faculty of Law of the University of Zurich. His research focuses on European human rights law.

Notes

1 See especially Articles 2, 5–7, 14 Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols no. 11 and no. 14, 4 November 1950, 213 UNTS 221, CETS no. 005, ratified by 47 states, entered into force 3 September 1953.

2 See, seminally, International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi), 13 April 2006, U.N. Doc. A/CN.4/L.682.

3 The term ‘general international law’ hereinafter refers to those public international law rules that do not stem from a specialised treaty regime, most notably the concepts underlying state responsibility. Cf. James Crawford, ‘State Responsibility’, in Max Planck Encyclopedia of Public International Law, ed. Rüdiger Wolfrum (Oxford: Oxford University Press, September 2006), http://opil.ouplaw.com/home/EPIL, paras 2–3.

4 See Article 38(1)(a) Statute of the International Court of Justice, 26 June 1945, 39 AJIL Supp. 215 (1945), entered into force 24 October 1945.

5 See, e.g. Melanie Fink, ‘The European Court of Human Rights and State Responsibility’, in The European Court of Human Rights and Public International Law: Fragmentation or Unity?, ed. Christina Binder and Konrad Lachmayer (Baden-Baden: Nomos and Vienna: Facultas.wuv, 2014), 93–118; Marko Milanović, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’, Human Rights Law Review 8, no. 3 (2008): 411–48; Daniel Rietiker, ‘The Principle of “Effectiveness” in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law – No Need for the Concept of Treaty Sui Generis’, Nordic Journal of International Law 79, no. 2 (2010): 245–77; Linos-Alexandre Sicilianos, ‘L’Articulation entre droit international humanitaire et droits de l’homme dans la jurisprudence de la Cour européenne des droits de l’homme’, Swiss Review of International and European Law no. 1 (2017): 3–18.

6 James Crawford and Amelia Keene, ‘The Structure of State Responsibility under the European Convention on Human Rights’, in The European Convention on Human Rights and General International Law, ed. Anne van Aaken and Iulia Motoc (Oxford: Oxford University Press, 2018), 178–98, see, especially, 181–84 and 188–89.

7 Cf. ARSIWA, with commentaries, para. 2 on Article 55; Annie Bird, ‘Third State Responsibility for Human Rights Violations’, European Journal of International Law 21, no. 4 (2010): 883–900.

8 El-Masri v. the Former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012.

9 Crawford and Keene, ‘Structure of State Responsibility’, 189.

10 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, U.N. GAOR, 56th Sess., Supp. No. 10, at 59, para. 77, U.N. Doc. A/56/10(SUPP) (2001). The General Assembly twice took note of and commended the ARSIWA to the attention of Governments. See U.N. GA Res. 59/35, U.N. GAOR, 59th Sess., Supp. No. 49, at 482, U.N. Doc. A/59/49 (Vol. I) (2004) and U.N. GA Res. 56/83, U.N. GAOR, 56th Sess., Supp. No. 49, at 499, U.N. Doc. A/56/49 (Vol. I) (2001). Further James Crawford, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013). This article proceeds on the assumption that the rules of general international law on state responsibility are codified in the ARSIWA. See Crawford, ‘State Responsibility’, para. 3.

11 Crawford and Keene, ‘Structure of State Responsibility’, 181–84.

12 Cf., e.g. Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, ECHR 2016, and the concurring and (partly) dissenting opinions annexed to this judgment; European Court of Justice, Judgment of 3 September 2008, Kadi I, C-402/05 P and C-415/05 P, EU:C:2008:461; Judgment of 18 July 2013, Kadi II, C-584/10 P, C-593/10 P and C-595/10 P, EU:C:2013:518; ‘Mapiripán Massacre’ v. Colombia, 15 September 2005, IACHR Series C No. 134, (see, especially, para. 107 on state responsibility).

13 Articles 4–11 and 16 ARSIWA.

14 Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, para. 239.

15 Loizidou v. Turkey (preliminary objections), 23 March 1995, Series A no. 310, para. 75.

16 Wemhoff v. Germany, 27 June 1968, Series A no. 7, para. 8.

17 See Jean-Paul Costa, ‘Responsibility for Violations of Human Rights Obligations: European Mechanisms’, in The Law of International Responsibility, ed. James Crawford, Alain Pellet and Simon Olleson (Oxford: Oxford University Press, 2010): 764–74, 764; Matthew Craven, ‘For the “Common Good”: Rights and Interests in the Law of State Responsibility’, in Issues of State Responsibility before International Judicial Institutions, ed. Malgosia Fitzmaurice and Dan Sarooshi (Oxford, Portland: Hart, 2004), 105–28, 117–18; Rietiker, ‘The Principle of “Effectiveness”’, 254; Dinah Shelton, Remedies in International Human Rights Law, 3rd ed. (Oxford: Oxford University Press: 2015), 59–61.

18 See Shelton, Remedies, 60–61. Cf. Article 60(5) Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, 1155 UNTS 331, ratified by 114 states, entered into force 27 January 1980; Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden, Boston: Martinus Nijhoff, 2009), MN 23–24 on Article 60.

19 The Court itself has merely received 33 inter-state applications (26 cases) since 1956. See http://www.echr.coe.int/Documents/InterStates_applications_ENG.pdf. Further, Bird, ‘Third State Responsibility’, 895; Craven, ‘Common Good’, 107; Malcolm D. Evans, ‘State Responsibility and the European Convention on Human Rights: Role and Realm’, in Issues of State Responsibility before International Judicial Institutions (see note 17), 139–60, 147 and his note 29; Shelton, Remedies, 60 and her note 200.

20 See ARSIWA, with commentaries, para. 2 on Part III, Chapter II; Craven, ‘Common Good’, 125.

21 On the Court’s practice, see Maarten den Heijer, ‘Procedural Aspects of Shared Responsibility in the European Court of Human Rights’, Journal of International Dispute Settlement 4, no. 2 (2013): 361–83, 378–81, who notes that general international law provides little guidance on questions concerning reparation in cases of multiple wrongdoing states.

22 Articles 41 and 46 ECHR. See also Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, Series A no. 330-B, para. 34.

23 See, e.g. Costa, ‘Responsibility for Violations’, 770–71; further Basak Çalı and Anne Koch, ‘Foxes Guarding the Foxes? The Peer Review of Human Rights Judgments by the Committee of Ministers of the Council of Europe’, Human Rights Law Review 14, no. 2 (2014): 301–25.

24 See Crawford and Keene, ‘Structure of State Responsibility’; Evans, ‘Role and Realm’.

25 Crawford and Keene, ‘Structure of State Responsibility', 181; Evans, ‘Role and Realm’, 157–59. Anja Seibert-Fohr, ‘From Complicity to Due Diligence: When Do States Incur Responsibility for Their Involvement in Serious International Wrongdoing?’, German Yearbook of International Law 60, 2017: 667–07, 670, observes that international courts tend to ‘avoid the issue of negligent participation by referring to positive obligations and to the failure to take action without considering the responsibility of States for their active involvement’. Maarten den Heijer, ‘Shared Responsibility before the European Court of Human Rights’, Netherlands International Law Review 60, no. 3 (2013): 411–40, 422, explains that the Court’s positive obligations doctrine covers cases that would otherwise be dealt with under the rules on derived responsibility (Articles 16–18 ARSIWA).

26 See, e.g. Constantin P. Economides, ‘Content of the Obligation: Obligations of Means and Obligations of Result’, in The Law of International Responsibility (see note 17), 371–81, 373; Franck Latty, ‘Actions and Omissions’, in The Law of International Responsibility (see note 17), 355–63, 356–57; Dinah Shelton and Ariel Gould, ‘Positive and Negative Obligations’, in The Oxford Handbook of International Human Rights Law, ed. Dinah Shelton (Oxford: Oxford University Press, 2013), 562–86.

27 See Economides, ‘Content of the Obligation’, 371–72.

28 Ibid., 378.

29 Latty, ‘Actions and Omissions’, 356.

30 ARSIWA, with commentaries, para. 1 on Part I, Chapter II.

31 Economides, ‘Content of the Obligation’, 377–78.

32 Latty, ‘Actions and Omissions’, 358.

33 Ibid., 357.

34 Ibid., 361.

35 Cf. den Heijer, ‘Shared Responsibility’, 423; Economides, ‘Content of the Obligation’, 378.

36 Cf., e.g. Mahmut Kaya v. Turkey, no. 22535/93, ECHR 2000-III, para. 101 (‘the authorities failed [contrary to Article 2] to take reasonable measures available to them to prevent a real and immediate risk to the life of [the applicant]’); A. v. the United Kingdom, 23 September 1998, Reports of Judgments and Decisions 1998-VI, para. 22 (‘Article 1 … taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture’); Kurt v. Turkey, 25 May 1998, Reports of Judgments and Decisions 1998-III, para. 124 (‘Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance’); Damir Sibgatullin v. Russia, no. 1413/05, 24 April 2012, para. 56 (‘the authorities failed [contrary to Article 6] to take reasonable measures to secure their [the witnesses] attendance at the trial’); Moreno Gómez v. Spain, no. 4143/02, ECHR 2004-X, para. 55 (‘a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8’); Dink v. Turkey, no. 2668/07, 14 September 2010, para. 137 (‘Elle [la Cour] estime … que les Etats sont tenus de créer, tout en établissant un système efficace de protection des auteurs ou journalistes, un environnement favorable à la participation aux débats publics [Article 10]’); Gustafsson v. Sweden [GC], 25 April 1996, Reports of Judgments and Decisions 1996-II, para. 45 (‘national authorities may … be obliged to intervene in the relationships between private individuals by taking reasonable and appropriate measures to secure the effective enjoyment of the negative right to freedom of association [Article 11]’).

37 See ARSIWA, with commentaries, para. 4 on Article 2; Economides, ‘Content of the Obligation’, 378; Latty, ‘Actions and Omissions’, 361. In Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII, para. 334, the Court held that:

Although it is not for the Court to indicate which measures the authorities should take in order to comply with their obligations most effectively, it must verify that the measures actually taken were appropriate and sufficient in the present case.

38 ARSIWA, with commentaries, para. 4 on Article 2; Latty, ‘Actions and Omissions’, 360. Not surprisingly, it has happened that the Court internally disagreed whether to examine a case from the perspective of negative or positive obligations. See, e.g. Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, ECHR 2009, para. 78.

39 Cf., e.g. the discussion in Bureš v. the Czech Republic, no. 37679/08, 18 October 2012, paras 73–79; see also den Heijer, ‘Shared Responsibility’, 439.

40 This is not to say that the question whether the harmful act can be attributed to the state is legally entirely irrelevant. For instance, it may remain relevant for questions of compensation. However, the account given above suffices for the present purpose.

41 Seminally, Artico v. Italy, 13 May 1980, Series A no. 37, para. 33.

42 Seminally, Tyrer v. the United Kingdom, 25 April 1978, Series A no. 26, para. 31. See also the Preamble of the Convention (‘further realisation of human rights’); and Françoise Tulkens, ‘Les techniques interprétatives des organes de protection des droits de l’homme: Discutant’, Revue Générale de Droit International Public 11, no. 2 (2011): 533–40, 534.

43 Marckx v. Belgium, 13 June 1979, Series A no. 31, para. 31; see, based on a detailed case-law analysis, Alastair Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart, 2004), 221, 225.

44 Article 31(1) VCLT; Wemhoff v. Germany, para. 8; Golder v. the United Kingdom, 21 February 1975, Series A no. 18, paras 34–36. Further, Rietiker, ‘The Principle of “Effectiveness”’, 252–55.

45 On the distinction between primary and secondary rules, see Eric David, ‘Primary and Secondary Rules’, in The Law of International Responsibility (see note 17), 27–33, 27–29.

46 ARSIWA, with commentaries, para. 1 of the General Commentary (‘The articles do not attempt to define the content of the international obligations, the breach of which gives rise to responsibility’).

47 Cf. Seibert-Fohr, ‘From Complicity to Due Diligence’, 677.

48 See El-Masri v. the Former Yugoslav Republic of Macedonia [GC], paras 21–22 (‘capture shock’ treatment). On torture and complicity in torture under international law in general, see Nina H. B. Jørgensen, ‘Complicity in Torture in a Time of Terror: Interpreting the European Court of Human Rights Extraordinary Rendition Cases’, Chinese Journal of International Law 16, no. 1 (2017): 11–40, MN 6–13.

49 El-Masri v. the Former Yugoslav Republic of Macedonia [GC], para. 206 (emphasis added).

50 Ibid., 198.

51 Ibid.

52 Ibid., para. 206. On this standard, see Jørgensen, ‘Complicity in Torture’, MN 26–32.

53 Cf. André Nollkaemper, ‘The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?’, EJIL Talk!, posted 24 December 2012, http://www.ejiltalk.org/the-ecthr-finds-macedonia-responsible-in-connection-with-torture-by-the-cia-but-on-what-basis, observing that the Court’s ‘acquiescence or connivance’ approach does not pertain to the state responsibility framework as set up by the ARSIWA. Critically, Crawford and Keene, ‘Structure of State Responsibility’, 189.

54 El-Masri v. the Former Yugoslav Republic of Macedonia [GC], para. 239.

55 Ibid.

56 See ibid., no. 8 (operative part).

57 But see ibid., para. 215: ‘the Court must examine whether any responsibility may be attributed to the respondent State for having transferred the applicant into the custody of the US authorities’ (emphasis added).

58 See ibid., nos 5 and 8 (operative part).

59 Ibid., para. 206.

60 The case dealt with acts committed by ‘authorities’ of a region not recognised by the international community, the ‘Moldavian Republic of Transdniestria’. See Ilaşcu and Others v. Moldova and Russia [GC], para. 2. Similarly, Chiragov and Others v. Armenia [GC], no. 13216/05, ECHR 2015.

61 Cf. Nollkaemper, ‘On What Basis?’.

62 The attribution of acts of non-state actors to a state is governed by Article 5 (conduct of persons or entities exercising elements of governmental authority) and Article 8 (conduct directed or controlled by a state). See ARSIWA, with commentaries.

63 Ibid., para. 1 on Article 16.

64 See also Seibert-Fohr, ‘From Complicity to Due Diligence’, 677, her note 47.

65 See Samuel Shepson, ‘Jurisdiction in Complicity Cases: Rendition and Refoulement in Domestic and International Courts’, Columbia Journal of Transnational Law 53, no. 3 (2015): 701–51, 725–28; cf. Jørgensen, ‘Complicity in Torture’, MN 27–32. But cf. Seibert-Fohr, ‘From Complicity to Due Diligence’, 677, suggesting that ‘[t]he Court could have analysed the case under Article 16 ARSIWA’.

66 El-Masri v. the Former Yugoslav Republic of Macedonia [GC], para. 212; cf. Shepson, ‘Jurisdiction in Complicity Cases’, 725–26. Further, den Heijer, ‘Procedural Aspects of Shared Responsibility’, 373–75.

67 See ARSIWA, with commentaries, paras 1 and 5 on Article 16; Monetary Gold Removed from Rome in 1943, Judgment (preliminary question), I.C.J. Reports 1954, 19, 32. But cf. Jørgensen, ‘Complicity in Torture’, MN 33–39.

68 ARSIWA, with commentaries, para. 5 on Article 16.

69 El-Masri v. the Former Yugoslav Republic of Macedonia [GC], para. 218 (emphasis added).

70 Ibid., para. 239.

71 Shepson, ‘Jurisdiction in Complicity Cases’, 727.

72 ARSIWA, with commentaries, para. 5 on Article 16 (emphasis added).

73 See El-Masri v. the Former Yugoslav Republic of Macedonia [GC], para. 212; Shepson, ‘Jurisdiction in Complicity Cases’, 727.

74 See El-Masri v. the Former Yugoslav Republic of Macedonia [GC], para. 239 in fine, where the Court speaks of the risk of the transfer.

75 See ibid., nos 5 and 8 (operative part).

76 ARSIWA, with commentaries, para. 1 on Article 16; Shepson, ‘Jurisdiction in Complicity Cases’, 727.

77 See ARSIWA, with commentaries, para. 10 on Article 16.

78 See Shepson, ‘Jurisdiction in Complicity Cases’, 727–28. On evidentiary problems, Helen Keller and Corina Heri, ‘Enforced Disappearance and the European Court of Human Rights: A “Wall of Silence”, Fact-Finding Difficulties and States as “Subversive Objectors”’, Journal of International Criminal Justice 12, no. 4 (2014): 735–50.

79 ARSIWA, with commentaries, para. 2 on Article 16.

80 See El-Masri v. the Former Yugoslav Republic of Macedonia [GC], paras 234, 236–37.

81 Ibid., paras 215–22.

82 Soering v. the United Kingdom, 7 July 1989, Series A no. 161, para. 91. Cf. the similar standard brought to bear in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, I.C.J. Reports 2007, 43, paras 436–38; Jørgensen, ‘Complicity in Torture’, MN 24–25.

83 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 10 December 1984, 1465 UNTS 85, ratified by 161 states, entered into force 26 June 1987. See CAT, Agiza v. Sweden, Communication No. 233/2003, views of 20 May 2005, U.N. Doc. CAT/C/34/D/233/2003, para. 13.4.

84 See ARSIWA, with commentaries, paras 1–4 on Part I, Chapter IV; den Heijer, ‘Shared Responsibility’, 414–16.

85 Shamayev and Others v. Georgia and Russia, no. 36378/02, ECHR 2005-III; see also Sharifi and Others v. Italy and Greece, 21 October 2014, no. 16643/09; M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011.

86 See El-Masri v. the Former Yugoslav Republic of Macedonia [GC], para. 206.

87 See Jaloud v. the Netherlands [GC], no. 47708/08, ECHR 2014, para. 154; Marko Milanovic, ‘Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court’, in European Convention on Human Rights and General International Law (see note 6), 97–111, observing that conceptual confusion between jurisdiction and state responsibility is frequent in the Court’s case-law.

88 Cf. den Heijer, ‘Shared Responsibility’, 439.

89 Sargsyan v. Azerbaijan (merits) [GC], no. 40167/06, ECHR 2015, para. 148 (emphasis added).

90 Ibid., para. 150; see also den Heijer, ‘Procedural Aspects of Shared Responsibility’, 367–68.

91 Sargsyan v. Azerbaijan (merits) [GC], para. 150.

92 See ibid., Concurring Opinion of Judge Yudkivaska (‘Can anyone exercise authority, in any sense of the word, over heavily mined territory which lies either side of a frontline, surrounded by armed forces from both sides and which, consequently, no one can even enter?’).

93 Sargsyan v. Azerbaijan, para. 151 (‘In conclusion, the Court finds that the facts out of which the alleged violations arise are within the “jurisdiction” of Azerbaijan … and are capable of engaging [its] responsibility’); see also Crawford and Keene, ‘Structure of State Responsibility’, 196.

94 Sargsyan v. Azerbaijan, paras 241–42; 259–61; 271–74.

95 Cf. Nollkaemper, ‘On What Basis?’.

96 HRC, Alzery v. Sweden, Communication No. 1416/2005, views of 25 October 2006, 88th Sess., U.N. GAOR 62nd Sess., Supp. No. 40, at 331, U.N. Doc. A/62/40 (Vol. II) (2007), para. 11.6 referring to Article 1 CAT.

97 But cf. Jørgensen, ‘Complicity in Torture’, MN 31.

98 See El-Masri v. the Former Yugoslav Republic of Macedonia [GC], para. 220 (‘by transferring the applicant into the custody of the US authorities, the Macedonian authorities knowingly exposed him to a real risk of ill-treatment’) and para. 223 (‘the respondent State is to be held responsible for … his torture at Skopje Airport and for having transferred the applicant into the custody of the US authorities, thus exposing him to the risk of further treatment contrary to Article 3 of the Convention’) (emphasis added).

99 See also Seibert-Fohr, ‘From Complicity to Due Diligence’, 677 and her note 44. She suggests that the Court would better apply due diligence standards in such cases in order to avoid going overboard in attributing harmful acts.

100 But see El-Masri v. the Former Yugoslav Republic of Macedonia [GC], no. 8 (operative part).

101 Cf. Vladislava Stoyanova, ‘Causation between State Omission and Harm within the Framework of Positive Obligations under the ECHR’, Human Rights Law Review 18, no. 2 (2018): 309–46, 319 text to and her note 69.

102 El-Masri v. the Former Yugoslav Republic of Macedonia [GC], para. 239.

103 Nollkaemper, ‘On What Basis?’.

104 Crawford and Keene, ‘Structure of State Responsibility’, 189.

105 Ibid.

106 Generally on the state duty to protect, Susan Carolyn Breau, The Responsibility to Protect in International Law: An Emerging Paradigm Shift (London, New York: Routledge, 2016), 92–121; Olivier de Schutter, International Human Rights Law, 2nd ed. (Cambridge: Cambridge University Press, 2014), 441–61; Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Oxford: Oxford University Press, 2009), 103–11; Bertrand G. Ramcharan, The Fundamentals of International Human Rights Treaty Law (Leiden, Boston: Martinus Nijhoff, 2011), chapter 5.

107 See CAT, General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2, paras 16–18; HRC, General Comment No. 31 [80]: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004 (2187th mtg.), CCPR/C/21/Rev.1/Add.13, para. 8 (quoted below, text to note 156); Velásquez-Rodríguez v. Honduras (merits), 29 July 1988, IACHR Series C No. 4, 28 ILM 291 (1989), paras 164–88; and text to note 96, quoting from Alzery v. Sweden; cf. Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v. Nigeria, No. 155/96, 30th Ordinary Sess. (2001), 2001 AHRLR 60, paras 44–48.

108 Al Nashiri v. Poland, no. 28761/11, 24 July 2014, para. 517.

109 See ibid., para. 531: ‘Poland’s responsibility is engaged in respect of both [the applicant’s] detention on its territory and his transfer from Poland’ (emphasis added). Cf. Fink, ‘ECtHR and State Responsibility’, 117–18, on the Court’s reaction, in Al-Jedda v. the United Kingdom [GC], no. 27021/08, ECHR 2011, to the critique of Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos 71412/01 and 78166/01, 2 May 2007.

110 There was not the slightest indication of conduct attributable to the FYRM that could have established the FYRM’s territorial or personal jurisdiction over the impugned events in Kabul.

111 Evans, ‘Role and Realm’, 157–59; see also Crawford and Keene, ‘Structure of State Responsibility’.

112 On this, see also above, section 2.2.

113 There are more than these two possibilities. In particular, certain cases could raise questions concerning the attribution of omissions by parastatal entities. However, a discussion of all the different constellations is not necessary to make our argument.

114 E.g. teachers are obliged not to whip pupils, while the schooling authority may concurrently be required to issue policies that prohibit teachers from whipping pupils. See also above, text to note 38.

115 See Crawford, State Responsibility, 117.

116 Human rights equally entail negative and positive obligations. See Kälin and Künzli, International Human Rights Protection, 96. Seminally, Commission on Human Rights, Sub-commission on Prevention of Discrimination and Protection of Minorities, The New International Economic Order and the Protection of Human Rights, Report on the Right to Adequate Food as a Human Right (submitted by Asbjørn Eide, Special Rapporteur), 7 July 1987, U.N. Doc. E/CN.4/Sub.2/1987/23, especially paras 111–16; Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton: Princeton University Press, 1980), especially 51–64.

117 Crawford and Keene, ‘Structure of State Responsibility’, 183–84; Evans, ‘Role and Realm’, 157–58.

118 Monica Hakimi, ‘State Bystander Responsibility’, European Journal of International Law 21, no. 2 (2010): 341–85, 353.

119 But cf. below text to note 140.

120 Cf. Benedetto Conforti, ‘Exploring the Strasbourg Case-Law: Reflections on State Responsibility for the Breach of Positive Obligations’, in Issues of State Responsibility (see note 17), 129–38, 134.

121 On causation between state omission and harm, see Stoyanova, ‘State Omission and Harm’.

122 Crawford and Keene, ‘Structure of State Responsibility’.

123 Costello-Roberts v. the United Kingdom, 25 March 1993, Series A no. 247-C, para. 26.

124 See ibid., paras 26–28.

125 U.N. Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, ratified by 196 states, entered into force 2 September 1990.

126 See Committee on the Rights of the Child (CRC), General Comment No. 8: The Right of the Child to Protection from Corporal Punishment and other Cruel or Degrading Forms of Punishment (Arts. 19; 28, para. 2; and 37, inter alia), 2 March 2007, 42nd Sess., CRC/C/GC/8, paras 30–37.

127 Katja S. Ziegler, ‘Immunity versus Human Rights: The Right to a Remedy after Benkharbouche’, Human Rights Law Review 17, no. 1 (2017): 127–51, 147.

128 Cf. ibid., 146–48.

129 O’Keeffe v. Ireland [GC], no. 35810/09, ECHR 2014 (extracts).

130 X and Y v. the Netherlands, 26 March 1985, Series A no. 91.

131 O’Keeffe v. Ireland [GC], para. 148.

132 See CAT, General Comment No. 2, para. 18.

133 Costello-Roberts v. the United Kingdom, para. 32.

134 Ibid., paras 27–28.

135 O’Keeffe v. Ireland [GC], para. 152.

136 Ibid., para. 162.

137 Ibid.

138 Of course, this suggestion stands in a certain contrast to the Convention states’ discretion on how to comply with their obligations.

139 ARSIWA, with commentaries, para. 2 on Part I, Chapter II.

140 See Stoyanova, ‘State Omission and Harm’, 318.

141 See O’Keeffe v. Ireland [GC], paras 162–65.

142 See ibid., para. 151.

143 See ibid., paras 161–62.

144 El-Masri v. the Former Yugoslav Republic of Macedonia [GC], para. 239.

145 Cf. Conforti, ‘Responsibility for Breach of Positive Obligations’, 130–35; Hakimi, ‘State Bystander’, 349–54.

146 Stoyanova, ‘State Omission and Harm’, 317–18.

147 Cf. Breau, Responsibility to Protect, 105.

148 See Seibert-Fohr, ‘From Complicity to Due Diligence’, 704–05.

149 O’Keeffe v. Ireland [GC], para. 151.

150 Costello-Roberts v. the United Kingdom, para. 8 and Joint Partly Dissenting Opinion of Judges Ryssdal, Thór Vilhjálmsson, Matscher and Wildhaber.

151 Cf. Evans, ‘Role and Realm’, 149–51.

152 One powerful caveat is apparent, though: the Court is a judicial authority and not a substitute legislator.

153 O’Keeffe v. Ireland [GC], para. 168: ‘this is not a case which directly concerns the responsibility of L.H. … or, indeed, of any other individual … Rather, the application concerns the responsibility of a State. More precisely, it examines whether the respondent State … adequately protected children, through its legal system’.

154 Ibid., paras 160–69.

155 Ibid., para. 168.

156 HRC, General Comment No. 31, para. 8.

157 On the difficulty of establishing government authority over the operations of parastatal entities such as private prisons, see ARSIWA, with commentaries, paras 1–7 on Article 5; Crawford, State Responsibility, 129–32.

158 For an example under Article 5 of the Convention, see Storck v. Germany, no. 61603/00, ECHR 2005-V, paras 102–08.

159 Cf. Stoyanova, ‘State Omission and Harm’, 316–18.

160 Cf. Andrea Gattini, ‘Breach of International Obligations’, in Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art, ed. André Nollkaemper and Ilias Plakokefalos (Cambridge: Cambridge University Press, 2014), 25–59, 42.