An Effective Global Control" in the Practice of the European Court of Human Rights: "Human Rights Imperialism" or a Great Deal of Confusion?

Abstract

The development of the concept of extraterritorial jurisdiction of states under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) leads to both blurring of jurisdictional boundaries within the "canonical" territory of the European Court of Human Rights (ECHR) and to the fact that rationeloci condition is no longer limited outside Europe. On the one hand, this concept allows the ECHR to avoid the appearance of "a legal vacuum in human rights protection", on the other - the ECHR ambitions result in increasing negative reaction by states, for example the reaction of the Russian authorities on the Transnistrian Moldovan affairs. The article examines the ECHR practice of using the "effective control" concept. According to the author, developing this concept, the ECHR does not impose "its own interpretation" of the well-known in international law standards of attribution of conduct to a state of persons acting under its direction or control ("Nicaragua test", "Tadic test"), which it is often reproached for. On the other hand, it permits, intentionally or unintentionally, a mixture of completely different concepts: control as a condition for attribution of conduct to a state of non-state actors (category of general international law) and control (over the victims or territory) as a condition of the state's jurisdiction within the meaning of Art. 1 of the ECHR.