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The ILC Guide to Practice on Reservations to Treaties: Some General Remarks

Published on March 24, 2014        Author: 

On 16 December 2013, by adopting resolution 68/111, the General Assembly completed a 21-year study on the codification and progressive development of the law on reservations to treaties. In its resolution, the GA takes note of the Guide to Practice on Reservations to Treaties, the text of which had been adopted by the International Law Commission (ILC) on 11 August 2011. The full text is an addendum to the 2011 Report of the ILC (available at http://legal.un.org/ilc/reports/2011/english/addendum.pdf).

A Special Kind of Instrument

I was appointed the Special Rapporteur of the ILC on the topic of “Reservations to Treaties” in 1994. With excessive confidence – or recklessness – I then declared that ‘[i]t does not seem unrealistic to think that the Commission would be in a position to adopt an initial set of draft articles, or a first draft to serve as a “guide” …, within three or four years of the subject being included on its agenda and the appointment of a Special Rapporteur” (Yrbk ILC (1993), ii(1), at 335, para. 55). I rapidly became disillusioned and realized that, as my illustrious predecessors had noted, ‘the subject of reservations to multilateral treaties is one of unusual – in fact baffling – complexity and it would serve no useful purpose to simplify artificially an inherently complex problem’ (Sir Hersch Lauterpacht, Report on the Law of Treaties, doc. A/CN.4/63, Yrbk ILC (1953), ii, at 124) moreover, the topic brings with it an emotional charge at the political level which I had underestimated and which made things even more complicated. The ‘sharia reservations’ are but the most striking example of the political sensitivity of the subject. More generally, reservations to human rights conventions, although they are by no means special legally speaking, are the object of harsh doctrinal and ideological debates. Read the rest of this entry…

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Announcements: Summer Schools at Nottingham, EUI and Parnu; Investment Law and Trade in Services Workshop, Lausanne; Essay Prize SIEL

Published on March 22, 2014        Author: 

1. The University of Nottingham Human Rights Law Centre Summer School on the Rights of the Child will run from 23 to 27 June 2014. The objective of this exciting programme is to consider issues concerning the rights of the child that are a matter of current legal, political and societal attention, both internationally and comparatively. These include violence against children, child participation, child poverty, and child rights monitoring and advocacy. There will be sessions devoted to international and regional child rights law, including the work of the international courts and treaty monitoring bodies mandated to consider violations of the rights of the child. The Summer School faculty are all highly experienced international experts on child rights, with backgrounds in advocacy, research and practice. The programme is available here. For further information please visit www.nottingham.ac.uk/hrlc/SummerSchool   or contact Miss Kobie Neita – +44 (0)115 84 66309 – hrlcsummerschool {at} nottingham.ac(.)uk

2. The 3rd Martens Summer School on International Law, organised by the University of Tartu Centre for EU-Russia Studies or CEURUS in the Estonian coastal resort town Pärnu, will deal with the comparative aspects of international law and human rights, particularly focusing on the issues related to Russia and Eastern Europe. One of the underlying ideas is to bring together Western, Russian and naturally also Estonian international law scholars, practitioners and students. Each year we invite 4 distinguished lecturers from different countries and each lecturer will present 5 lectures over 5 days of the week. More information here.

3. Call for Papers – International Investment Law and Trade in Services, 18-19 September 2014, University of Lausanne (Switzerland)  - This workshop [organized by Andreas R. Ziegler (University of Lausanne), Eric de Brabandere (Grotius Centre, Leiden University) and Tarcisio Gazzini (VU Amsterdam)] will explore the specific problems related to foreign direct investment in the services sector. Proposals for papers are particularly welcome in the following thematic areas: Investment law and public services;  Interaction between investment and services chapters in RTAs; Investment law and competition issues in services; Investment law and network industries; Problems of investment liberalization and protection in specific services sectors like telecommunications, financial services, utilities distribution, infrastructure projects, and security or professional services. Proposals should be submitted to Ms. Jorun Baumgartner (jorunkatharina.baumgartner {at} unil(.)ch) before 30 April 2014. The selected participants will be notified by 31 May 2014.

4. The Academy of European Law at the European University Institute (EUI) holds two summer courses each year, on Human Rights Law and the Law of the European Union.  The Academy’s Summer Courses are renowned for their innovative and cutting-edge topics, combined with the highest standards of academic content presented by leading scholars and thinkers. Each year the courses attract highly qualified participants from all around the world and the mix of participants from different backgrounds makes the experience of attending the summer courses a very rewarding one. The 2014 Human Rights Law course (16 June – 27 June) comprises a General Course on ‘21st Century Human Rights’ by Harold Hongju Koh (Sterling Professor of International Law, Yale Law School) and a series of specialized courses on the topic of ‘Freedom of Religion, Secularism and Human Rights’. We are also pleased to have two distinguished lectures by Bruno Simma (Judge at the Iran-United States Claims Tribunal; former Judge at the International Court of Justice) and Joseph H.H. Weiler (President of the European University Institute). The 2014 Law of the European Union course  (30 June – 11 July) comprises a General Course on ‘The Internal Market as a Legal Concept’ by Stephen Weatherill (Jacques Delors Professor of European Law, Oxford University) and a series of specialized courses on the topic of ‘EU Legal Acts: Challenges and Transformations’. The Summer School will also include a distinguished lecture by Marta Cartabia, an EUI alumna now Judge at the Italian Constitutional Court and Professor of Constitutional Law, Bicocca University in Milan.  The deadline for applications  is Thursday 10 April 2014. For further information, visit the Academy’s website at www.eui.eu/AEL.

5. The Society of International Economic Law welcomes submissions to its 2014 Essay Prize Competition. Submissions may be on any area of international economic law, except for international commercial arbitration and EU law, and the deadline is 30 September 2014. The Prize consists of £200, plus £300 worth of books from Cambridge University Press and a 3 year print subscription to the World Trade Review, and an invitation to present at the next SIEL Biennial Conference. The winning essay will be considered for publication by the World Trade Review. The Essay Prize Competition is open to students, practitioners and academics whose last degree was after before 30 September 2009. Further details are available here.

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Crimea, Kosovo, Hobgoblins and Hypocrisy

Published on March 20, 2014        Author: 

One of the more remarkable aspects of the whole unfortunate Ukraine episode is the rampant hypocrisy on part of all of the major players involved in the dispute. Those same Western states that unlawfully invaded Iraq, and supported Kosovo’s secession from Serbia while endlessly repeating that Kosovo was somehow a really super-special sui generis case, are now pontificating about the sanctity of the UN Charter and territorial integrity.  On the other hand, that same Russia that fought two bloody wars in the 1990s to keep Chechnya within its fold, that same Russia that to this day refuses to accept the independence of Kosovo, has now rediscovered a principle of self-determination that apparently allows for the casual dismemberment of existing states.

I am not saying that no distinctions can be drawn between the various situations I just mentioned. In particular, I agree with many of the arguments in the recent posts by Christian Marxsen and Jure Vidmar about the differences between Crimea and Kosovo, the critical one being that Crimea’s secession is the direct result of Russia’s unlawful military intervention against Ukraine, whereas Kosovo’s secession was not tainted to the same extent by NATO’s 1999 intervention due to the subsequent adoption of Resolution 1244, which authorized the presence of international forces in Kosovo while disabling Serbia from taking military action to suppress Kosovo’s secession. I would also note that it is more difficult to levy charges of hypocrisy against international lawyers, rather than states or politicians – and I hope that speaks well of our profession. Most international lawyers after all considered the 1999 intervention against Serbia or the 2003 invasion of Iraq to have been unlawful, and most justifiably feel the same way with regard to Russia’s intervention in Ukraine.

But even if Kosovo and Crimea are legally distinguishable, they are still close enough. The West’s position on Crimea is undeniably undermined by their previous stance regarding Kosovo, and they can only blame themselves for that. Just consider President Putin’s speech justifying the annexation of Crimea by reference to Kosovo and the ICJ’s advisory opinion:

Read the rest of this entry…

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Crimea’s Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo

Published on March 20, 2014        Author: 

On 16 March 2014, Crimea held a referendum on its future legal status. Reportedly, the choice to join Russia was supported by an overwhelming 95.5 per cent of all votes cast, with the turnout of 83 per cent. A day earlier, Russia vetoed a draft Security Council resolution which sought to declare the referendum as ‘having no legal validity’ and urge the international community not to recognise its results. The draft resolution was otherwise supported by 13 members of the Security Council, with China abstaining. On 17 March 2014, the Crimean parliament declared independence and applied to join Russia.  This contribution explains that while the referendum itself was not illegal in international law, the shift of territorial sovereignty would be illegal. Moreover, in the legal circumstances underlying the situation in Crimea, even the declaration of independence violated international law. As a result, the obligation to withhold recognition of the effective situation is applicable under general international law. No Chapter VII Resolution is required. This is not because international law would see territorial integrity of states as an absolute norm, but because the effective situation was created by Russia’s use or threat of force. Although parallels have been drawn to Kosovo (see the discussion in Christian Marxsen’s post) and even Scotland, in terms of international law Northern Cyprus would be a more accurate comparison.

Secession and neutrality of international law

Groups seeking independence usually present self-determination as an absolute entitlement. Conversely, states countering secession usually present territorial integrity as an absolute entitlement of states. Neither camp is right. As follows from the General Assembly’s Declaration on Principles of International Law (GA Res 2625), the Quebec case (Supreme Court of Canada) and partly also from the Kosovo Advisory Opinion (ICJ), international law is actually neutral on the question of unilateral secession. This means that unilateral secession is neither prohibited nor an entitlement. Furthermore, for the purposes of international law, it does not matter whether or not secession is explicitly prohibited under domestic law. As noted by the Supreme Court of Canada in the Quebec case, an entity may declare independence extra-constitutionally and yet nevertheless become independent if other states are willing to recognise it (the Quebec case, para 155). This further confirms that unilateral secession unto itself does not trigger an obligation to withhold recognition. [I explain this further here].Yet states are very rarely willing to grant recognition on a widespread basis to entities seeking independence unilaterally. By holding a referendum and declaring independence, such an entity in most circumstances does something that remains legally ineffective, yet not internationally wrongful. The burden of changing the territorial status quo lies on the secession-seeking entity and this exercise is very rarely successful if the parent state does not agree. However, a declaration of independence may be given effectiveness through foreign military assistance. This is where neutrality of international law ends. International law is neutral only with respect to a declaration’s unilateral character, but not in general, where territorial illegality is attached to the situation.

When are declarations of independence illegal?

Territorial illegality arises under a serious breach of certain fundamental norms of international law, in particular jus cogens. Read the rest of this entry…

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Ukraine, Russia and Crimea in the European Court of Human Rights

Published on March 19, 2014        Author: 

Much has been written recently about the legal ramifications of events in Ukraine, but there was a new development last week when the European Court of Human Rights granted interim measures in an inter-state case brought by Ukraine against Russia. The case was lodged on 13 March, and on the same day the Strasbourg Court issued an interim measure (under rule 39) indicating that the Russian government should ‘refrain from measures which might threaten the life and health of the civilian population on the territory of Ukraine’.

The decision was taken by the President of the Third Section of the Court, the Andorran judge, Josep Casadevall. Judge Casadevall went further in calling on both Ukraine and Russia to refrain from taking any measures, ‘in particular military actions’, which might breach the rights of civilians under the European Convention on Human Rights, including putting their life and health at risk, and calling on the states to comply with Articles 2 and 3 of the Convention. Both states are obliged to inform the Court as soon as possible of the measures they have taken in response.

In spite of the Convention preamble’s exhortation to state parties to ensure its collective enforcement, the inter-state case procedure in Strasbourg remains a rarity. It may come as little surprise that Russia has been the respondent in the three most recent such cases, each of which has been brought by Georgia. Georgia v Russia (I) relates to the arrest and detention of the Georgian immigrant population in Russia in September 2006, following the arrest in Tbilisi of four Russian service personnel on espionage charges. More pertinently to the current events in Ukraine, Georgia v Russia (II) concerns the August 2008 conflict in South Ossetia and Abkhazia, in which Russia claims to have been defending the civilian population (Russian citizens who had been granted passports) in both regions against Georgian attacks (there are also at least 2,000 individual applications pending against one or other (or both) states). A third case brought by Georgia, relating to the detention of four Georgian minors in South Ossetia, was withdrawn after they were released in December 2009, following missions to the region by the Commissioner for Human Rights.

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Crimea’s Declaration of Independence

Published on March 18, 2014        Author: 

The referendum on Crimea’s secession from Ukraine and on the subsequently planned accession to the Russian Federation has produced the expected results. An overwhelming majority has voted against Crimea remaining part of the state of Ukraine. Already one day after the referendum, the Supreme National Council of Crimea has declared the independence of Crimea and requested other states to recognize it as an independent sovereign state. And today Russia and Crimea signed an agreement on Crimea’s accession to the Russian Federation. Crimean and Russian authorities seek to justify their actions under international law, especially by reference to the International Court of Justice’s advisory opinion on Kosovo. In a statement of March 11, 2014, the Supreme Council of Crimea proclaimed that it is acting “with regard to the charter of the United Nations and a whole range of other international documents and taking into consideration the confirmation of the status of Kosovo by the United Nations International Court of Justice on July, 22, 2010, which says that unilateral declaration of independence by a part of the country doesn’t violate any international norms.” (link to press report) How do these claims hold under international law?

In evaluating the significance of the ICJ’s advisory opinion to Crimea it is important to highlight that the opinion only had a very limited scope. It did not answer the question whether Kosovo had a right to secession under international law, it did not address the question whether there is a general entitlement to secession; nor did it answer the question of the legal consequences of the declaration of independence or whether Kosovo has become an independent state. Rather, the opinion is limited to an analysis of the legality of the declaration itself (I.C.J. Reports 2010, para. 51, 56).

The Kosovo opinion relies on a brief review of norms of international law, which – as the ICJ concludes – do not generally prohibit unilateral declarations of independence. The principle of territorial integrity only applies in the relations between states, but not in regard to internal secessionist movements. However, the ICJ mentions a situation in which unilateral declarations of independence can nevertheless be in violation of international law, namely where they “were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (ius cogens)” (ibid. para. 81). The violation of international law then does not stem from the unilateral character of the declaration of independence, but from its reliance on the violation of a peremptory norm of international law.

In regard to Crimea, the declaration of independence would have been impossible without Russian troops backing up the steps towards secession. Only the fact that Ukrainian forces on Crimea have been locked in their posts and that the public infrastructure has been taken over by pro-Russian forces made it possible to hold the referendum on which the declaration of independence is based. It can therefore hardly be argued that the declaration would not rely on the use of force. According to the criteria elaborated in the ICJ’s advisory opinion, if that use of force was illegal, so was the declaration of independence.

A further question is whether Crimea has a substantive right to secession under international law. Crimean authorities refer to the UN Charter and rely on the principle of self-determination (Article 1 (2) UN Charter) which, as they argue, would assign them a right to secession. Such a claim is also not supported by international law. State practice is very reluctant to acknowledge a right to secession, since states fear that their own territorial integrity might be endangered by an empowerment of secessionist groups. Indicative for the traditional position on the right to self-determination is General Assembly Resolution 2625 (1970). After acknowledging the right to self-determination this resolution stresses that such acknowledgment may not “be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States” as long as those states internally respect the right to self-determination of peoples. The right to self-determination requires states to respect minority rights, but does not grant a sub-entity of states the right to freely chose to which state a territory shall belong. Self-determination is usually limited to internal measures, such as the right to be granted a certain status of autonomy within a state. Although one might certainly argue about the necessary degree of autonomy, it is important to highlight that Crimea already had the status of an autonomous republic under Ukraine’s constitution. In principle, the institutional arrangements for implementing the right to self-determination were in place.

The legal situation in regard to the self-determination of Crimea is therefore rather clear. But, as Nico Krisch has pointed out on this blog, the more formal, traditional norms of international law have come under pressure from what he calls liberal interventionism. In regard to self-determination, Western states have created such pressure, for example, when recognizing Kosovo as an independent state immediately after its declaration of independence in 2008. Those who argued for these exemptions referred to the history of internal conflict and the human rights violations that preceded Kosovo’s declaration of independence. A comparable history of conflict does not exist in Crimea, but since the concept of self-determination has been expanded in the past when it seemed opportune, it is not surprising that secessionist movements try to push the limits even more. Since Russia is powerful enough to pursue its interests anyway, it does not need an ultimately convincing legal justification. A justification that is at least not totally absurd, but somehow arguable, is already good enough for making a case in the international political sphere. In expanding the right to self-determination in regard to Kosovo, Western states bear their share of responsibility in enabling such arguments and in undermining international law.

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A Follow-Up on International Arbitration under Pressure

Published on March 17, 2014        Author: 

Given the dramatic events in Ukraine, investment law was unlikely to be high up on the international legal agenda these past few days. However, during the weekend, the debate about investor-State dispute settlement (ISDS) I described in my last post may have taken a new turn. On 14 March, the Financial Times reported that Germany – long the most ardent supporter of ISDS and the country with the largest number of Bilateral Investment Treaties – now pushes for the exclusion of dispute settlement provisions from the EU-US Trade and Investment Partnership. This is the relevant bit:

Germany has introduced a stumbling block to landmark EU-US trade negotiations by insisting that any pact must exclude a contentious dispute settlement provision. …. [I]n the biggest blow yet to those seeking its inclusion in the deal, Berlin has decided that it will push for the exclusion of the ISDS provisions …. A spokesman for the economy ministry in Berlin said on Friday that the government had relayed its position to officials in Brussels, where negotiators have ended a week of talks over the proposed Transatlantic Trade and Investment Partnership (TTIP). Earlier in the week, Brigitte Zypries, a junior economy minister, told the German parliament that Berlin was determined to exclude arbitration rights from the TTIP deal. “From the perspective of the [German] federal government, US investors in the EU have sufficient legal protection in the national courts,” she told parliament. The German position pits Berlin against the commission, the US and business groups. All of them argue that the transatlantic deal is an opportunity to update arbitration rights that already feature in existing bilateral investment treaties and are often open to abuse.

 And, as the FT went on, the German position is really something quite new:

Nicole Bricq, France’s trade minister, has raised concerns before over the ISDS provision. Germany has until now backed its inclusion in the new pact. But Berlin has also been confronted with growing public scepticism in recent months over the transatlantic deal as a whole, and the ISDS provision in particular. At a press conference to mark the close of the fourth round of negotiations on Friday, Dan Mullaney, the leading US negotiator, declined to comment on the German decision. Ignacio Garcia Bercero, the EU’s chief negotiator, also refused to comment on it. But he pointed out that the EU’s original mandate to negotiate specifically included an ISDS provision and had been approved by member states, including Germany. “We are working on the basis of the mandate that has been given to us,” said Mr Garcia Bercero.

So, Alessandra Asteriti may be right (in the comments to my previous post) in saying the ‘ground is shifting’.

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Announcements: Course in Munich; 3rd Annual Cambridge J. Int & Comp. Law Conference; Symposium at Durham

Published on March 15, 2014        Author: 

1) The Munich Advanced Course in International Law (MACIL) is a summer school held at Ludwig Maximilians University Munich and dedicated to questions of Public International Law. Its next session, entitled A No Man’s Land in International Law? Towards a New Public International Law for the Cybersphere”, will take place from 4 to 15 August 2014. Classes will aim at discussing the challenges posed by the cybersphere to several aspects of ‘classical’ Public International Law doctrine. This will include, amongst others, questions of cyber warfare, cyber regulation, the applicability of the rules on state responsibility and jurisdiction as well as the adaptation of norms of international economic law to conducts in virtual surroundings. The 2014 faculty will include Oren Gross (Minnesota), Jutta Brunnée (Toronto), Thomas Cottier (Bern), Terry Gill (Amsterdam) and others. For further information please visit the MACIL homepage.”

2) Registration for the Third Annual Conference of the Cambridge Journal of International and Comparative Law is now open. The CJICL Conference  will be held on 10–11 May 2014 at the St John’s College Divinity School, University of Cambridge under the theme: “Stepping Away from the State: Universality and Cosmopolitanism in International and Comparative Law”. This Conference will explore approaches that question the traditional state-centric view of international and comparative law.  The idea of universality suggests that international law applies equally and indiscriminately across domestic legal systems, and within sub-systems of international law itself. Cosmopolitanism conceives of the world as a single entity, with resonances between people irrespective of their location, nationality and culture, and asks how legal actors can access legal regimes beyond their state’s domestic framework.

Some of the conference highlights will include: Keynote address by Judge Kenneth Keith of the International Court of Justice; Keynote debate between Judge Angelika Nussberger (European Court of Human Rights) and Lord Kerr (Supreme Court of the United Kingdom); Launch of Dr Kate Miles’ recently published book, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (Cambridge University Press, 2013); Forty presentations over more than ten panels.
3) The relationship between law and negotiation is increasingly at the forefront of the international agenda. International organisations whose role includes the mediation of peace, such as the MediationSupport Unit of the United Nations, and the European Union, are seeking to understand the relationship between mediation, law and justice in conflict and post conflict societies. While such organisations cknowledge that international law places normative constraints on the practice of peace making, they also recognise that key principles ofmediation, such as consent, inclusivity and local ownership, are crucial to the success of negotiated peace processes. These questions have risen to the top of international policy agendas, but there is to date a lack of academic scrutiny of how the relationship between law and negotiation itself it to be negotiated. Research to date has focused on discrete aspects of the relationship between law and negotiation, such as the role of human rights in peace agreements, or in setting transitional justice priorities. It has not addressed the overarching question of the relationship between law and negotiation that underpins these divisive issues.
On Thursday 20th and Friday 21st March a symposium hosted  by Law and Global Justice at Durham will address the ways in which law and negotiation can play a mutually supportive role in the conflict and post conflict environments, speakers and invited guests at the symposium will discuss three key themes; those of violence, of culture and gender. Speakers include Ms Rashida Manjoo, (UN Special Rapporteur on Violence Against Women) Mr Francesc Vendrell, (Former EU High Representative to Afghanistan); Dr Sari Kouvo (University of Gothenburg & Afghanistan Analysts); Dr Christopher Lamont (University of Groningen); Dr Aisling Swaine (George Washington University); Mr Martin Waehlisch (European University Viadrina); Dr Richard Collins (University of Sheffield); Dr Jeroen Gunning (Durham Global Security Institute). For further information or to register to attend please email CatherineTurner (Catherine.turner {at} durham.ac(.)uk)
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Oxford University Press Debate Map on Ukraine

Published on March 14, 2014        Author: 

Over the past couple weeks, there has been a flurry of writing on this blog  (see here, here, here and here) and elsewhere about events in Crimea/Ukraine. Oxford University Press have produced another of their ever so useful Debate Maps on Ukraine.

“The  . . . index maps scholarly commentary on the legal arguments regarding the public international law (and some domestic constitutional law) aspects of the use of force in Ukraine, published in English language legal blogs and newspapers, and free content from OUP’s online services.

Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.”

I could not recommend this Debate Map, and the other OUP maps (here, here, here),  more highly. There is so much writing on topical international law issues that it can be difficult to stay abreast of what has been written, particularly over a short space of time. The Debate Map is an excellent way of doing so.

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Azemi v. Serbia in the European Court of Human Rights: (Dis)continuity of Serbia’s De Jure Jurisdiction over Kosovo

Published on March 13, 2014        Author: 

Following the 2008 Kosovo Declaration of Independence and the change in public powers in Kosovo, Azemi v. Serbia was the first decision in which the ECtHR examined whether Serbia continued to have jurisdiction in Kosovo. The applicant, Ali Azemi, a national of Kosovo, alleged that Serbia had violated his rights under Article 6 (1) of the Convention by failing to enforce a decision rendered by a court in Kosovo in 2002. The applicant argued that Serbia bore responsibility for the enforcement of the Convention rights throughout its territory, including Kosovo.

On November 5, 2013, the ECtHR found that Serbia could not be held responsible under Article 1 of the Convention for the non-enforcement of a decision of a Kosovo court. The Court had previously sustained the presumption of Serbia’s de jure jurisdiction in Kosovo. However, in the Azemi case in examining the period after the Declaration of Independence it departed from that view by way of establishing the presumption of neutrality with regard to Kosovo.

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