The Conflation of Jurisdiction and Attribution Tests, the ‘Law,’ and the International Legal Status of Abkhazia and South Ossetia: A Review of Recent ECtHR Case Law

By Júlia Miklasová

This blog features an analysis of the common threads that link three recent ECtHR judgments related to the Russia-controlled parts of Georgian territory – the de facto entities of Abkhazia and South Ossetia –with the Court’s existing case law. Particularly, the blog focuses on the conflation of the jurisdiction and attribution tests, the Court’s approach to the domestic ‘law’ of de facto entities, and the direct and indirect confirmation of their status as part of Georgia under general international law. The judgments in the cases of O.J. and J.O. v. Georgia and Russia, Matkava and Others v. Russia and the inter-State case Georgia v. Russia (IV), upheld and further developed the Court’s previous jurisprudence concerning the de facto entities, particularly as established in Mamasakhlisi and Others v. Georgia and Russia (regarding human rights violations in Abkhazia before the 2008 Russia-Georgia War, see the analysis here) and Georgia v. Russia (II). The three recent judgments are likely to be relevant to the future case law concerning other de facto entities, particularly in eastern Ukraine.

Overview of Three Cases Related to Abkhazia/South Ossetia

Central to these three cases is the existence of the so-called administrative boundary line (‘ABL’) between the Georgia-controlled territory and de facto Abkhazia and South Ossetia. Russia, which recognised these entities as States in 2008 (see in detail, Miklasová, pp. 479-497), and the ‘separatists’ consider this line an international border. Georgia and the international community, however, view these entities as integral parts of Georgia, with the former seeing the ABL as an occupation line (Georgia v. Russia (IV), para. 9). Since 2009, the population living along the ABL has faced a process known as ‘borderisation’, which involves three key elements: (i) setting up of physical infrastructure, including fencing, towers, and surveillance systems; (ii) patrolling of the line by the Russian and de facto border guards and detention of persons breaching ‘border’ regulations; (iii) the requirement that individuals present specific documents and commute only through ‘official’ crossing points (in detail: Georgia v. Russia (IV), para. 8).

Against this backdrop, the judgments reveal a picture of precarious human rights and impunity of the perpetrators. Matkava and Others v. Russia concerns the killing of Giga Otkhozoria, an ethnic Georgian civilian, by one of the de facto Abkhaz border guards, following an argument at the ‘border’ crossing and a subsequent chase of the victim into Georgian-held territory. Despite his conviction in Georgia and requests for extradition, the perpetrator has never been handed over to the Georgian authorities and the criminal case in Abkhazia was terminated. O.J. and J.O. v. Georgia and Russia involves, among others, the unlawful detention of two Georgian nationals by the Abkhaz authorities, who were accused and convicted by the latter of espionage. In the inter-State case Georgia v. Russia (IV), which concerns Russia’s administrative practice of human rights violation along the ABL in both entities, the Court, inter alia, established that at least twenty incidents submitted by Georgia fall within the scope of allegations of violations under Article 2 ECHR (the complaint of a pattern of killing of ethnic Georgians seeking to enter/exit Abkhazia or South Ossetia, see para. 29). The Court viewed the incidents submitted by Georgia (a list of over 2.800 alleged cases of arrest and detention for unlawful crossing of the ABL) as ‘sufficiently numerous and interconnected to amount to…a pattern’ (para. 52).

The Court ultimately found Russia responsible for numerous human rights violations, including the substantive and procedural limbs of Articles 2 and 3, Article 5(1) and 8 ECHR and Articles 1 and 2 Protocol No. 1 and Article 2 Protocol No. 4 in Georgia v. Russia (IV). In O.J. and J.O. v. Georgia and Russia, Russia was found in violation of Articles 5(1)(a) and (c) and 6(1) and (3) ECHR, while in Matkava and Others v. Russia, Russia was found responsible for violations of the substantive and procedural limbs of Article 2 ECHR. However, given that Russia is no longer a Contracting Party to the ECHR and has ceased any communication with the Court, it is difficult to expect its compliance with the judgments. Georgia v. Russia (IV) still awaits a decision regarding the application of Article 41 ECHR.

Conflating Jurisdiction and Attribution Tests: One Further Step Away from General International Law

The cases re-confirmed the Court’s previously established findings (Georgia v Russia (IV) admissibility decision, para. 44, Georgia v Russia (II), paras. 162-75 and 299) that in the period following the 2008 Russia-Georgia War, Russia exercised effective control over the territories of Abkhazia and South Ossetia (see O.J. and J.O. v. Georgia and Russia, paras. 61-62; Matkava, para. 96).

Notably, however, the killing of Mr Otkhozoria in Matkava by the de facto Abkhaz border guard did not take place in the territory of Abkhazia over which Russia exercised effective control but in Georgia-held territory. Therefore, the spatial concept of jurisdiction was not enough and the Court had to determine whether Russia ‘had jurisdiction over the act of killing under the personal concept of jurisdiction,’ known as the State agent authority and control concept of jurisdiction (para. 97). Only then came the issue of Russia’s responsibility.

Thus, even though the Court never phrased the question in this way, it had first to satisfy itself whether the act of killing by the de facto Abkhaz border guard outside of the area of Russia’s effective control could be attributed to Russia to establish its personal jurisdiction (attribution analysis within the jurisdictional analysis as detailed by Milanović, 106-7). Notably, in this case, ‘the jurisdiction-establishing conduct and the violation-establishing conduct’ were actually ‘one and the same’ (Milanović, 106). Essentially, the question was whether the act of an agent of the de facto Abkhaz authorities on duty when shooting the victim could be considered the act of Russia’s State agent for this event to fall within Russia’s personal extra-territorial jurisdiction (since personal jurisdiction entails State agent authority and control over individuals). The Court, however, did not explicitly make such an attribution-within-jurisdiction analysis (its focus in the section on the personal concept of jurisdiction was, among others, the attribution of the perpetrator’s actions to the de facto Abkhaz authorities, see para. 101).

Instead, building on previous case law, the Court held that ‘Russia had effective control over Abkhazia during the relevant period. Accordingly, its responsibility cannot be confined to the acts of its own soldiers or officials there; that responsibility must also be engaged by virtue of the acts of the local administration, which survived by virtue of Russian military, political and economic support,’ adding that ‘from the time when the Russian Federation exercised “effective control” over the territory of Abkhazia it was also responsible for the actions of the Abkhaz forces in that territory, without it being necessary to provide proof of “detailed control” of each of those actions’ (para. 96, emphasis added). Notably, in these passages, the Court referred to responsibility (even though jurisdiction is at issue here) for the acts of the local administration within the territory over which Russia exercised effective control (not beyond it). However, since no other link was provided in the section on the personal concept of jurisdiction, it follows that the Court considered the agent of the de facto Abkhaz authorities the Russian State agent for the purposes of Russia’s personal jurisdiction by virtue of Russia’s effective control over Abkhazia (compare para. 98 where the Court referred to other cases concerning the personal concept of jurisdiction involving the State’s police, armed forces, or ‘Turkish or Turkish Cypriot uniformed personnel, who had fired into the crowd while themselves standing on “TRNC” territory’, see para. 104). The Court later even referred to its approach as “a combination between the ‘spatial’ and ‘personal’ concepts of jurisdiction (para. 109).

The Court used the very same reasoning when examining Russia’s responsibility for violation of the substantive limb of Article 2 ECHR occurring outside of Abkhazia. The Court noted that

Since Russia had effective control over Abkhazia during the period in question, its responsibility cannot be confined to the acts of its own soldiers or officials there but must also be engaged by virtue of the acts of the local administration, which survived thanks to Russian military, political and economic support…. Therefore, the act complained of is attributable to the respondent State, whose responsibility for it under the Convention is consequently engaged (para. 110, emphasis added).

Thus, undeniably, the Court attributed the conduct of the de facto Abkhaz agent outside the area of Russia’s effective control to Russia for the purposes of its responsibility using the jurisdictional standard of Russia’s effective control over the territory of Abkhazia. In doing so, it conflated the jurisdiction and attribution tests. This reasoning must be viewed against the general international law rules on attribution for the purposes of State responsibility, codified in ARSIWA. Under general international law, the attribution of conduct for the purposes of responsibility requires the factual inquiry as to the relation between the State and non-State actors, whether in the form of complete dependence of the latter on the former (see Bosnian Genocide case, para. 393; Article 4 ARSIWA) or the State direction or control over a specific non-State actor’s conduct (see Bosnian Genocide case, para. 400; Article 8 ARSIWA). No reference to the ARSIWA attribution rules was made in this judgment. The effective control test used by the Court concerns effective control over an area (rather than the actors) and requires no special analysis as to the State control over the specific conduct of non-State actors and thus is looser than the attribution rules required under general international law (see Miklasová, 359-360, Milanović, Talmon, 511).

Given the factual circumstances of the case – the occurrence of the unlawful conduct outside of the area of Russia’s effective control – the case arguably, in the starkest terms so far (compare Ukraine and the Netherlands v Russia, para. 697), confirms that despite never explicitly acknowledging this fact, the Court uses a lex specialis test of attribution in cases concerning de facto entities – a jurisdictional test of effective control (see regarding the previous case law, Miklasová, 349-351; Berkes, 224). A plethora of authors have criticised the Court’s approach in earlier cases, most importantly for the lack of conceptual clarity and for not explaining why such a diversion from general rules is warranted in the context of the ECHR (see Jorritsma, 692; Milanović). The same criticism applies to the present case.

‘Lawfulness’ of the Acts of De Facto Entities under the Convention

The judgments in O.J. and J.O. v. Georgia and Russia (paras. 75-77 and 87) and Georgia v. Russia (IV) confirmed a controversial yet now well-established aspect of the Court’s jurisprudence concerning de facto entities. This involves the Court’s analysis of the lawfulness of acts by such entities within the context of certain substantive provisions of the Convention, particularly, concerning unlawful arrest and detention under Article 5(1) ECHR and the right to a fair trial under Article 6(1) ECHR.

For example, in examining the lawfulness of detention in Abkhazia in O.J. and J.O. v. Georgia and Russia, the Court followed its previous findings in Mamasakhlisi. Specifically, it noted the ‘lack of information provided by the responded Governments about the specific provisions of domestic law that had served as a legal basis’ and ‘the absence of a basis for assuming that there was a system reflecting a judicial tradition compatible with the Convention in the region similar to the one in the rest of Georgia’ (para. 76). Thus, the detention ordered by the de facto Abkhaz authorities and courts could not have been ‘lawful.’ In Georgia v. Russia (IV), the Court applied the same reasoning concerning the element of lawfulness regarding Convention provisions not yet analysed in this context, particularly, the unlawfulness of orders by the de facto authorities restricting the freedom of movement (para. 63) and the unlawfulness of interferences by the de facto authorities with rights under Article 8 ECHR and Article 1 Protocol 1 ECHR (para. 72).

Significantly, the Court’s conclusions stemmed not from the unlawfulness of these entities under general international law, but from the failure to meet the standards previously established by the Court, including the quality of the ‘law’ of de facto entities and the effectiveness of the protection of the rights (see Mozer, paras. 142-144; Mamasakhlisi, paras. 419-428). Several scholars have criticised this aspect of the Court’s jurisprudence as incompatible with the duty of non-recognition (see Miklasová, 295-305 and 693-4, Nuridzhanian, Ronen, 93), which prohibits not only the formal recognition of unlawful situations, but also any recognition of the acts which may imply such recognition (Article 41(2) ARSIWA). While, in a similar context, the Court previously relied on an exception from the duty of non-recognition (Cyprus v Turkey, para. 90; see Namibia advisory opinion, para. 125), some scholars view the Court’s interpretation of this exception as too broad (see Miklasová, 295-305, Ronen, 88-98).

Moreover, the Court’s approach can be compared with its reasoning in its later judgment on the merits in Ukraine v Russia (re Crimea), where it considered the rules of international humanitarian law (IHL) to determine the general issue of lawfulness under the Convention (para. 942). While the Court sought to distinguish Ukraine v Russia (re Crimea) from cases concerning the de facto entities, this author has previously argued that Abkhazia and South Ossetia could also reasonably be considered occupied by Russia (see, e.g. PACE Opinion 300 (2022), para. 5). However, the rules of IHL did not feature at all in the Court’s analysis in the present cases (see Miklasová).

Territorial Status of Abkhazia and South Ossetia as Parts of Georgia

Given that the underlying issue common to the three cases is the diverging views on the territorial status of two territories by Russia and Georgia, it is significant that the Court explicitly stated throughout the judgments that, under general international law, these regions belong to Georgia. Crucially, in O.J. and J.O. v. Georgia the Court held that ‘Abkhazia’ refers to the region in Georgia which is currently outside the de facto control of the Georgian Government’ (para. 1, emphasis added). Similar formulations were used in Georgia v Russia (IV) (para. 7, ftn 1), Georgia v Russia (IV) admissibility decision (para. 11, ftn 1) and Georgia v Russia (II), para 35, ftn 3).

In Georgia v Russia (IV), the Court further emphasised that ‘it is evident that the overwhelming majority of the international community (including all members of the Council of Europe) recognises Abkhazia and South Ossetia as an integral part of Georgia and supports its territorial integrity according to the principles of international law’ (para. 80).

Similarly, the analysis of the positive obligations of Georgia as the territorial State in O.J. and J.O. v. Georgia was grounded by ‘the fact that the region was recognised under public international law as part of Georgia’s territory’ (para. 60, see generally, Miklasová, 383, for criticism of the doctrine of positive obligations of territorial States, see Milanović and Papić).