International law of state responsibility and the ECHR: symbiosis or estrangement?

Abstract

In recent years, the European continent has been shook by a number of illegal acts of aggression characterized by asymmetric warfare which have significantly undermined security in the region. Utilisation of unorthodox military tactics that weaponise information and heavily employ the use of non-State actors in direct hostilities has put an incremental challenge to many fundamental legal notions under international law and the European Convention of Human Rights (ECHR).This article offers an inductive analysis of the ECtHR’s jurisprudence with regards State responsibility in the contested regions which aims to identify a clear pattern based on the Court’s reasoning. The article makes reference to the relevant rules under international law of State responsibility and briefly examines their interplay with the ECHR. Particular regard is also given to relevant legal literature, specifically, generalist and Convention-specific authors that have examined similar questions in their contributions.The analysis delineates between salient legal issues such as the position of general international law and its relationship with the ECHR.The article offers an overview of the relevant caselaw and inductive analysis of the approach taken by the Court.One of the main takeaways of the article is that the framework of ARISWA is relevant to the ECHR in so far as it covers the gaps in the Convention as was demonstrated in the analysis of the relevant case-law. Additionally, it appears that the Court has decided to develop its own distinct jurisprudence on State responsibility that in many aspects substantially differs from what is envisaged under ARISWA. The interconnected nature yet distinctly separate function of the frequently confused legal concepts has often resulted in a misunderstanding of the approach adopted by the Court.