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The European Convention on Human Rights and General International Law$
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Anne van Aaken and Iulia Motoc

Print publication date: 2018

Print ISBN-13: 9780198830009

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780198830009.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 15 December 2019

The ECHR and Responsibility of the State: Moving Towards Judicial Integration

The ECHR and Responsibility of the State: Moving Towards Judicial Integration

A View from the Bench

Chapter:
(p.199) 10 The ECHR and Responsibility of the State: Moving Towards Judicial Integration
Source:
The European Convention on Human Rights and General International Law
Author(s):

Iulia Motoc

Johann Justus Vasel

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198830009.003.0011

This chapter discusses the recent jurisprudence of the European Court of Human Rights (ECtHR), reaching the conclusion that the Court’s approach evolves towards judicial integration. After analysing the notion of lex specialis with regards to the question of responsibility and jurisdiction, as (implicitly) proposed by the ECtHR in the Catan judgement, the chapter considers the question of the attribution of conduct introduced for the first time in the Jaloud judgment. The chapter draws a parallel between the notion of effective control used in the International Court of Justice’s (ICJ’s) Nicaragua case and the Chiragov case. It argues that the Courts ruling in Chiragov is closer to the criteria of effective control imposed by the ICJ. The analysis will display that, in both recent decisions, the Court is moving towards judicial integration in the sense of a reasoned difference between the responsibility of human rights and general international law. It is evident that the European Convention of Human Rights is no self-contained regime.

Keywords:   lex specialis, self-contained regime, judicial integration, fragmentation, attribution of conduct, effective control, jurisdiction, state responsibility

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