Tzevelekos: Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches

Vassilis P. Tzevelekos (Univ. of Hull - Law) has posted Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility (Michigan Journal of International Law, forthcoming). Here's the abstract:

The paper discusses the rather thorny question of extraterritoriality in human rights protection and the effective control criterion developed by the European Court of Human Rights with a view to delimit territorially the ambit of human right obligations. By first deconstructing, and then reconstructing, the effective control doctrine, the paper defends the universalist nature of human rights protection. At the same time, it explains why and how extraterritoriality in human rights protection may lead to concurrent responsibilities on the part of multiple states for the same wrongful situation or result. Through this, the Article maps the role of effectiveness in the exercised control in extraterritorial human rights protection and develops a model for concurrent state responsibility. Considering more broadly effectiveness, the study finally argues that, next to the classic legal bases, effectiveness too may activate due diligence obligations requiring a state that is effectively linked to a wrongful situation to be proactive and protective.

The analytical basis of the Article is the distinction it makes between directly attributable wrongfulness, that is, wrongfulness caused by the state (negative human rights obligations), and responsibility for lack of diligence, that is, for failure to apply in human rights protection the positive measures that are necessary and available to the state so that it prevents or remedies wrongfulness (positive human rights obligations).

The first major argument of the study concerns the famous criterion of effective control in extraterritoriality. This part argues that, in the case of direct attribution, a state shall be responsible every time wrongful conduct is attributable to it, without regard to whether wrongfulness is taking place within or outside its national territory. The only task effective control may be called to carry out in that case is to serve as a criterion for attribution, in conformity with the norms of the International Law Commission on state responsibility. However, in the case of extraterritorial wrongfulness for breach of the principle of due diligence, effective control does have a role to play. Effectiveness is one element among many to be taken into consideration when assessing the standards of diligence a state can — and therefore is legally obliged to — demonstrate. Because due diligence is an obligation of means, its standards are flexible and subjective in that they depend on the particular circumstances of each distinctive case.

The paper’s second primary argument relates to concurrent state responsibility. In the context of the study, concurrent responsibility is the idea that more than one states will be concurrently responsible for a single wrongful result, owing to the combination of a directly attributable to a state wrongful act that causes the result, and to the failure of one or more other states to fight that wrongful result — amounting to a breach on behalf of the second category of states of the principle of due diligence — that had been directly caused by another state or, more generally, another subject of international law or even a general situation that cannot be attributed to a particular person. Directly attributable wrongfulness and responsibility for lack of diligence interact in a complementary way, leading to the concurrent responsibility of more than one state for the same wrongful result or situation. One wrongful result, severability of the breaches of the primary obligations by several, respectively, states; this is in a nutshell the concept of concurrent responsibility. In principle, one (or more) states will be objectively responsible because of directly breaking the law, whereas, more other states may be subjectively responsible because of their failure to fight the wrongful result that has directly been caused by the former state. The model of concurrent state responsibility identified in the paper may find application in a variety of scenarios and situations that extend beyond human rights.

Finally, the paper attempts to chart the role of effective control, and effectiveness more generally. In addition to serving as a criterion for direct attribution (a de facto organ) in the frame of state responsibility, and as an element in determining the standards of due diligence a state must demonstrate, effectiveness has a third dimension. This dimension stems from the maxim of ex facto oritur jus (the law arises from the facts). The law arises from the facts, and reality may generate legal obligations. The existence of any type of nexus, either legal or factual, between a state and a given wrongful situation expands that state’s sphere of jurisdiction and requires it to actively fight wrongfulness–to the extent, of course, that this is possible to it, and as long as the means it chooses in that end are lawful.