The Journal of Human Rights

The Journal of Human Rights

The relationship between shared responsibility and jurisdiction in the case law of the European Court of Human Rights

Document Type : Research Article

Authors
Saeed Mokhtari 1
Mohamad Setayeshpur 2
1 PhD Candidate, Fculty of Law, University of Qom, Qom, Iran.
2 Associate Professor, Department of International Law, Faculty of Law, University of Qom, Qom, Iran.
10.22096/hr.2025.2055472.1729
Abstract
The issue of shared responsibility arises before international courts when several international actors play a role in violating international obligations. On the other hand, determining the jurisdiction in these cases requires that those courts pay careful attention to points such as the jurisdiction of the investigating authority in the territory where the violation occurred or the control of the offending state over the territory or the injured parties. The method used in this essay is the method of doctrinal legal research using the cases of the European Court of Human Rights and international legal documents. This study examines the intricacies of determining jurisdiction within the framework of shared responsibility and concludes that the Court has adopted the traditional territorial approach to jurisdiction as a foundational principle in many cases. However, it has not limited itself to this approach. By establishing criteria such as "effective control" and "effective authority," the Court has expanded the scope of its jurisdiction to encompass extraterritorial human rights violations. On the other hand, the Court has examined and accepted the issue of its jurisdiction over injured persons who were under the effective control of a state using the same criterion. Ultimately, this study has concluded that the Court's practice in this regard is dynamic and evolving.
Keywords
European Court of Human Rights
case law
jurisdiction
effective control
shared responsibility

Subjects

Bibliography
 
A. Momenirad and M. Setayeshpur, “Conceptual Framework of Derivative Responsibility of International Organizations in International Law,” Public Law Studies Quarterly 49, no. 3 (2019): 635-655, doi: 10.22059/jplsq.2018.242627.1589. [In Persian]
Al-Skeini and Others v. United Kingdom. Application No. 55721/07. European Court of Human Rights. Judgment of 7 July 2011.
Amsterdam Center for International Law (ACIL). SHARES Research Paper 06 (2012), ACIL 2012-04 (Amsterdam: SHARES Project, last modified match 16, 2025) http://www.sharesproject.nl/publication/shared-responsibility-in-international-law-a-concept-paper.
Banković v. Belgium and Others. Application No. 52207/99. European Court of Human Rights. Grand Chamber Decision on Admissibility (12 December 2001).
Budayeva v. Russia. Application No. 15339/02. European Court of Human Rights. Reports of Judgments and Decisions 2008-(2).
Çalı, Basak. “Coping with Crisis: Whither the Variable Geometry in the Jurisprudence of the European Court of Human Rights.” Wisconsin International Law Journal 25, No. 3 (2007): 571–603.
Chimni, B. S. “The Articles on State Responsibility and the Guiding Principles of Shared Responsibility: A TWAIL Perspective.” The European Journal of International Law 31, No. 4 (2021): 1212–1221.
Cyprus v. Turkey. Application No. 25781/94. European Court of Human Rights. Grand Chamber Judgment (10 May 2001).
East Timor (Portugal v. Australia). Merits, [1995] ICJ Rep 90.
European Court of Human Rights. Case of Ilascu and Others v. Moldova and Russia. Application No. 48787/99. Judgment, 8 July 2004 (Strasbourg: European Court of Human Rights, 2004).
European Court of Human Rights. Drozd and Janousek v. France and Spain. Application No. 12747/87. Judgment of 26 June 1992.
European Court of Human Rights. Hassan v. the United Kingdom. Application No. 29750/09. Judgment of 16 September 2014. HUDOC. https://hudoc.echr.coe.int.
European Court of Human Rights. Hirsi Jamaa and Others v. Italy. Application No. 27765/09. Judgment of 23 February 2012.
European Court of Human Rights. Jaloud v. the Netherlands. Application No. 47708/08. Judgment of 20 November 2014. HUDOC. https://hudoc.echr.coe.int.
European Court of Human Rights. Rules of Court. Rule 42 § 1 and 2; Rule 47 § 1(c). [latest edition] (Strasbourg: Council of Europe), Accessed 28 March 2024. https://www.echr.coe.int.
Gentilhomme and Others v. France, Application Nos. 48205/99, 48207/99, and 48209/99. European Court of Human Rights. Judgment of 14 May 2002.
Kılıç v. Turkey, Application No. 22492/93. European Court of Human Rights. Reports of Judgments and Decisions 2000-(3).
Loizidou v. Turkey, Application No. 15318/89. European Court of Human Rights. Grand Chamber Judgment (18 December 1996).
M. Setayeshpur and M. Haddady, “Scrutinizing the Necessity of ‘Derivative Responsibility’ In Light of ILC Works,” Public Law Studies Quarterly 47, no. 3 (2017): 771-795, doi: 10.22059/jplsq.2017.225499.1449. [In Persian]
Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom, and United States). Preliminary Question, [1954] ICJ Rep 19.
Nollkaemper, André. “Issues of Shared Responsibility before the International Court of Justice.” ACIL Research Paper No. 2011-01 (SHARES Series finalized 8 April 2011).
Öneryıldız v. Turkey. Application No. 48939/99. European Court of Human Rights. Grand Chamber Judgment (30 November 2004).
Osman v. the United Kingdom. Application No. 23452/94. Eur. Ct. H.R. Reports of Judgments and Decisions 1998-(8).
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The Journal of Human Rights
Volume 20, Issue 1 - Serial Number 39
Spring and Summer 2025, Issue 39
July 2025
Pages 147-165