Systemic Interpretation of the European Convention on Human Rights and its Protocols: Creeping Fragmentation of State Responsibility

Abstract

The article discusses how the European Court of Human Rights (hereinafter — ECtHR, the Court) influences the way the European Convention on Human Rights (hereinafter — ECHR, the Convention) is systematically interpreted in the context of state responsibility. The article highlights that interpretation of the Convention and general principles of state responsibility is crucial for holding states accountable, ensuring justice for victims, and upholding the credibility and coherence of international law. For this reason, it is essential for the Court to carefully interpret the ECHR within the broader context of international law. The authors believe that one of the most practical strategies to analyse this issue is through determining the consistency of the European Court of Human Rights’ approach to state responsibility issues, elaborated through its case-law, with general customary rules of international law. It can be effectively performed through the lens of three fundamental problems: jurisdiction and attribution interaction problem; issues of state responsibility for the acts of international organisations, paying special attention to peace-keeping operations; and third-state responsibility problem. The analysis shows that the Court creates its own criteria, often conflicting with each other, by ignoring established general rules of international law on state responsibility. Lastly, the authors show that while the Court often acts as a lawmaker, it should create the law in a unified way to apply it fair and equally for the purposes of human rights protection. It is not the states and their particular interests that should govern the application of law by the Court. In the end, the authors come to the conclusion that the policy behind the Court’s decisions is not only predominantly inconsistent with the general customary rules of international law and the object and purpose of the Convention, but also results in the creeping fragmentation of the international law on state responsibility.