Milanovic: State Acquiescence or Connivance in the Wrongful Conduct of Third Parties in the Jurisprudence of the European Court of Human Rights

Marko Milanovic (Univ. of Nottingham - Law) has posted State Acquiescence or Connivance in the Wrongful Conduct of Third Parties in the Jurisprudence of the European Court of Human Rights. Here's the abstract:

This article examines the jurisprudence of the European Court of Human Rights with regard to the acquiescence or connivance of states parties to the European Convention on Human Rights (ECHR) in the wrongful conduct of third states (which themselves may or may not be parties to the ECHR) or non-state actors. It discusses the origins of the acquiescence or connivance test in the Court’s case law, which is idiosyncratic and does not stem from general international law. The article also discusses the test’s legal nature, arguing that its conceptual basis remains unclear, and that the current state of the case law could support two theories.

First, that acquiescence or connivance, as applied in the Court’s most recent cases, is an ECHR-specific rule of attribution of conduct, which deviates from the general rules of attribution in international law, as codified by the International Law Commission in its Articles on State Responsibility. The Articles themselves do allow for the possibility of sector-specific rules of state responsibility; Article 55 ASR, entitled lex specialis, thus provides that the Articles ‘do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.’ One view of the Court’s acquiescence or connivance test is thus that it provides us with an example of a lex specialis rule of attribution of conduct in the sense of Article 55 ASR.

The alternative view, however, is that the Court’s acquiescence or connivance jurisprudence would best be conceptually framed as an ECHR-specific theory of state complicity. Under such a framing, the state acquiescing or conniving in the wrongful conduct of a third party is being held responsible for the assistance it provides to that third party, rather than for the third party’s own conduct – in other words, the complicity rule is not necessarily an attributive one. While such a rule would arguably differ from the ILC’s general approach to wrongful state aiding and assisting in Article 16 ASR, it would not be an ECHR-specific rule of attribution, or at least it would not always operate with an attributive effect. I argue that such a conceptual framing would best accommodate human rights-specific needs while maintaining coherence with general international law. Even under such a framing, however, there are many aspects of the acquiescence or connivance test that require further clarification by the Court.