Reconstructing the effective control criterion in extraterritorial human rights breaches : direct attribution of wrongfulness, due diligence, and concurrent responsibility

The paper discusses the rather thorny question of extraterritoriality in human rights protection and the effective control criterion developed by the European Court of Human Rights with a view to delimit territorially the ambit of human right obligations. By first deconstructing, and then reconstructing, the effective control doctrine, the paper defends the universalist nature of human rights protection. At the same time, it explains why and how extraterritoriality in human rights protection may lead to concurrent responsibilities on the part of multiple states for the same wrongful situation or result. Through this, the Article maps the role of effectiveness in the exercised control in extraterritorial human rights protection and develops a model for concurrent state responsibility. Considering more broadly effectiveness, the study finally argues that, next to the classic legal bases, effectiveness too may activate due diligence obligations requiring a state that is effectively linked to a wrongful situation to be proactive and protective. The analytical basis of the Article is the distinction it makes between directly attributable wrongfulness, that is, wrongfulness caused by the state (negative human rights obligations), and responsibility for lack of diligence, that is, for failure to apply in human rights protection the positive measures that are necessary and available to the state so that it prevents or remedies wrongfulness (positive human rights obligations). The first major argument of the study concerns the famous criterion of effective control in extraterritoriality. This part argues that, in the case of direct attribution, a state shall be responsible every time wrongful conduct is attributable to it, without regard to whether wrongfulness is taking place within or outside its national territory. The only task effective control may be called to carry out in that case is to serve as a criterion for attribution, in conformity with the norms of the International Law Commission on state responsibility. However, in the case of extraterritorial wrongfulness for breach of the principle of due diligence, effective control does have a role to play. Effectiveness is one element among many to be taken into consideration when assessing the standards of diligence a state can — and therefore is legally obliged to — demonstrate. Because due diligence is an obligation of means, its standards are flexible and subjective in that they depend on the particular circumstances of each distinctive case. The paper’s second primary argument relates to concurrent state responsibility. In the context of the study, concurrent responsibility is the idea that more than one states will be concurrently responsible for a single wrongful result, owing to the combination of a directly attributable to a state wrongful act that causes the result, and to the failure of one or more other states to fight that wrongful result — amounting to a breach on behalf of the second category of states of the principle of due diligence — that had been directly caused by another state or, more generally, another subject of international law or even a general situation that cannot be attributed to a particular person. Directly attributable wrongfulness and responsibility for lack of diligence interact in a complementary way, leading to the concurrent responsibility of more than one state for the same wrongful result or situation. One wrongful result, severability of the breaches of the primary obligations by several, respectively, states; this is in a nutshell the concept of concurrent responsibility. In principle, one (or more) states will be objectively responsible because of directly breaking the law, whereas, more other states may be subjectively responsible because of their failure to fight the wrongful result that has directly been caused by the former state. The model of concurrent state responsibility identified in the paper may find application in a variety of scenarios and situations that extend beyond human rights. Finally, the paper attempts to chart the role of effective control, and effectiveness more generally. In addition to serving as a criterion for direct attribution (a de facto organ) in the frame of state responsibility, and as an element in determining the standards of due diligence a state must demonstrate, effectiveness has a third dimension. This dimension stems from the maxim of ex facto oritur jus (the law arises from the facts). The law arises from the facts, and reality may generate legal obligations. The existence of any type of nexus, either legal or factual, between a state and a given wrongful situation expands that state’s sphere of jurisdiction and requires it to actively fight wrongfulness–to the extent, of course, that this is possible to it, and as long as the means it chooses in that end are lawful

History-Register Automata

Programs with dynamic allocation are able to create and use an unbounded number of fresh resources, such as references, objects, files, etc. We propose History-Register Automata (HRA), a new automata-theoretic formalism for modelling such programs. HRAs extend the expressiveness of previous approaches and bring us to the limits of decidability for reachability checks. The distinctive feature of our machines is their use of unbounded memory sets (histories) where input symbols can be selectively stored and compared with symbols to follow. In addition, stored symbols can be consumed or deleted by reset. We show that the combination of consumption and reset capabilities renders the automata powerful enough to imitate counter machines, and yields closure under all regular operations apart from complementation. We moreover examine weaker notions of HRAs which strike different balances between expressiveness and effectiveness.Comment: LMCS (improved version of FoSSaCS

In search of alternative solutions : can the state of origin be held internationally responsible for investors' human rights abuses that are not attributable to it?

The paper establishes a three-step (due diligence, positive effect of human rights and extraterritoriality) argument for the responsibility of the home state for the human right breaches of its investors in third countries

Revisiting the Humanisation of International Law: Limits and Potential. Obligations Erga Omnes, Hierarchy of Rules and the Principle of Due Diligence as the Basis for Further Humanisation

The article critically evaluates the theory of the humanisation of international law. First, it argues that despite human rights having impact on (other areas of) international law, this trend has in the past been somewhat inflated. A number of examples are given where human rights have been tested against other objectives pursued by international law, with humanisation revealing its limits and actual dimensions. The second argument consists in identifying and highlighting obligations erga omnes (partes) and the principle of due diligence as two ‘systemic’ tools, that are central to the humanisation of international law. Both these tools form part of modern positive law, but may also make a positive contribution towards the direction of deeper humanisation in international law, having the potential, inter alia, to limit state will, establish occasional material normative hierarchy consisting in conditional priority in the fulfilment of human rights, give a communitarian tone to international law and invite states to be pro-active in the collective protection of their common interests and values. In its conclusions, the article offers a plausible explanation about the paradox it identifies of the limits of the humanisation on the one hand, and its potential for further development on the other. For, it is inherent in international law that the line separating the law from deontology is thin. The process of humanisation needs to be balanced with the other objectives of international law as well as reconciled with the decentralised and sovereignist origins of the pluralistic international legal system

The use of article 31(3)(c) of the VCLT in the case-law of the ECtHR : an effective anti-fragmentation tool or a selective loophole for the reinforcement of human rights teleology?

In Part I the Article will briefly introduce the question of the fragmentation of international law, and will more extensively delineate the role that the ILC attributed to Article 31(3)(c) and the ILC's expectations regarding its success in this role. Next, Part II will give an overview of the special elements of the ECHR socio-normative environment, which gave rise to the case law into which Article 31(3)(c) came into force. The Article will argue that, in addition to benefiting from the very special nature of the ECHR, the Strasbourg Court also has a significant number of interpretative tools that allow it to enjoy wide discretion in the choices it often has to make regarding the dilemma between unconditional integration into the international legal order and its (regional) human rights specialty. Once concluded the theoretical part of the study, the Article will proceed in Part III to test the use of Article 31(3)(c) in the case law of the ECtHR. The object of this Part of the study is to assess the validity of the presumptions that Parts I and H introduced with regard to the function of Article 31(3)(c) within a special regime of international law. Part III is structured at two main levels, and will first address the question of normative fragmentation, and second its judicial institutional counterpart. Finally, Part III will consider the evolutive effects of Article 31(3)(c) as these are integrated in the broader question of fragmentation generally, and will treat these effects separately in certain instances, as further delineated in that Part

Program Equivalence with Names

The nu-calculus of Pitts and Stark was introduced as a paradigmatic functional language with a very basic local-state effect: references of unit type. These were called names, and the motto of the new language went as follows: "Names are created with local scope, can be tested for equality, and are passed around via function application, but that is all." Because of this limited framework, the hope was that fully abstract models and complete proof techniques could be obtained. However, it was soon realised that the behaviour of nu-calculus programs is quite intricate, and program equivalence in particular is surprisingly difficult to capture. Here we shall focus on the following "hard" equivalence. new x,y in f. (fx=fy) == f. true We shall examine attempts and proofs of the above, explain the advantages and disadvantages of the proof methods and discuss why program equivalence in this simple language remains to date a mystery

The Meaning and Effects of Erga Omnes within the Prespa Agreement of 17 June 2018 between Greece and North Macedonia. An Introductory Note

The Prespa Agreement (PA, the Agreement) is a bilateral international treaty between Greece and North Macedonia that entered into force on 12 February 2019. Its primary purpose is the settlement of a relatively longstanding dispute that arose in the aftermath of the former Yugoslavia’s dissolution, when North Macedonia declared its independence under the constitutional name of Republic of Macedonia. Greece, whose northern region is also called Macedonia, was opposed to the use of this name by its neighbour for a number of reasons, involving historical concerns and fears of irredentism. Article 1(3)(a) of the PA provides as follows: ‘The official name of the Second Party [i.e. the state nowadays named North Macedonia] shall be the “Republic of North Macedonia”, which shall be the constitutional name of the Second Party and shall be used erga omnes, as provided for in this Agreement. The short name of the Second Party shall be “North Macedonia”.’ Other provisions of the PA define the new terminologies to be used regarding North Macedonia’s nationals and language. This note presents the architecture and key features of the Agreement and sets the scene for the two papers hosted in the QIL issue on the PA that it (i.e. this note) introduces. These papers treat the PA as a case study offering the opportunity to define the meaning and the effects of the term ‘erga omnes’ within this particular context, discuss who is bound by the Agreement, and explore the obligations and rights this treaty potentially establishes for non-parties. In that respect, the note identifies three key scenarios. First, the term ‘erga omnes’ might be read as referring to the instances when and the persons vis-à-vis whom the agreed terminologies must be used; not vis-à-vis whom the obligation to employ these terminologies is owed. Thus, according to this scenario, the obligation to use the agreed terminologies for all usages and all purposes, erga omnes, both domestically and internationally is a bilateral obligation that one party to the PA owes to the other party. Thus, the PA is a bilateral treaty establishing reciprocal, synallagmatic obligations pertaining to interests that, prima facie, are exclusive to the two parties to the Agreement. The PA establishes no rights or obligations for third parties according to this scenario. The second scenario consists in reading the PA as a bilateral treaty, a part of which is aimed at establishing obligations (and rights) for non-parties consenting to adopt and use the new terminologies. This scenario raises questions such as whether consenting third parties assume a duty to employ these terminologies, as well as vis-à-vis whom such an obligation is owed. Finally, the third scenario considers that the settlement of the naming dispute is a means of prevention of territorial claims, tension and conflict, and serves purposes that are not solely “private”, and which do not exclusively concern the interests of the parties to it. Peace, conflict prevention and the preservation of the existing borders are also a matter of general interest. Therefore, the PA could fall within the category of treaties establishing an objective regime, i.e. a regime binding everyone and which ought to be respected by everyone, including non-parties to the Agreement. Qualifying part of the PA as an objective regime would imply the establishment of an obligation owed by all actors vis-à-vis all other actors, that is to say, an obligation erga omnes

In search of alternative solutions : can the state of origin be held internationally responsible for investors' human rights abuses that are not attributable to it?

The paper establishes a three-step (due diligence, positive effect of human rights and extraterritoriality) argument for the responsibility of the home state for the human right breaches of its investors in third countries