Territorial Jurisdiction and Positive Obligations of an Occupied State

Abstract

The international law of occupation—as it has developed since the nineteenth century—traditionally regulates the conduct and obligations of occupying forces. Very little is said about the obligations of an occupied State, or a ‘victim’ State. This chapter focuses on a limited practice of the European Court of Human Rights in developing some principles in this respect. The main emphasis is put on the landmark judgment Ilascu v Moldova and Russia, in which, for the first time, the Court has found that a State, which lost effective control over a part of its territory and was unable to exercise its jurisdiction there, still had some positive obligations deriving from its de jure jurisdiction. It is argued that the Court’s approach represented a new development in international law, which traditionally considered human rights obligations to be primarily triggered by an effective territorial control. It is further discussed that it might be quite difficult to reconcile positive obligations towards people remaining in occupied territories with a State’s obligation to refrain from supporting separatist regimes. Substitution of effective control for the concept of ‘positive obligations’ necessitates a very delicate assessment of different political, diplomatic, judicial, and other measures, which requires a high degree of sensitivity on the part of the international court. The scope of the positive obligations of an injured State vis-à-vis the positive obligations of an occupying State needs to be elucidated further.