1. Introduction
The increasing complexity of multinational operations in the modern era has brought critical questions concerning state responsibility for joint conduct under international law to the forefront. The present study aimed to undertake a comparative analysis of the legal frameworks governing concurrent responsibility, juxtaposing the principles set out in the International Law Commission’s (ILC) 2001 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) with the jurisprudence of the European Court of Human Rights (ECtHR). The study sought to answer the following questions: (1) How does the ECtHR reconcile the ILC’s principle of concurrent responsibility for joint conduct with the jurisdictional limitations imposed by Article 1 of the ECHR? (2) What implications does this reconciliation—or the absence thereof—have for accountability in multinational operations, particularly in contexts such as military coalitions and shared governance arrangements? And (3) can a coherent doctrine be developed to reconcile the ILC’s universalist approach to concurrent responsibility with the ECtHR’s predominantly territorially anchored jurisprudence? The analysis focused on the tension between the ILC’s recognition of concurrent responsibility for joint conduct and the ECtHR’s jurisdictional thresholds under Article 1 of the European Convention on Human Rights (ECHR), which generally requires a sufficient basis for attributing conduct to a state within its jurisdiction, including through the exercise of effective control over individuals or territory
2. Literature Review
Existing scholarship reveals significant divergences in approaches to state responsibility. Although the ILC’s Articles on ARSIWA are not legally binding as such, they largely codify and reflect customary international law. Article 47, in particular, recognizes the possibility of concurrent responsibility where multiple states participate in a joint organ or collective action resulting in an internationally wrongful act. The framework also addresses attribution through effective control (Article 8), but does not provide a mechanism for apportioning liability among multiple responsible states.
In contrast, the ECtHR’s case law, as seen in Hussein v. Albania (2006) and Al-Skeini v. the United Kingdom (2011), prioritizes territorial jurisdiction and direct operational control, requiring claimants to prove a state’s specific role in alleged violations. Critics like Larsen, in “Attribution of Conduct in Peace Operations: The ‘Ultimate Authority and Control’ Test” (2008), and Talmon, in “The Procedural Obligation Under Article 2 ECHR to Investigate and Cooperate with Investigations of Unlawful Killings in a Cross-Border Context” (2019), argue that the ECtHR’s rigid jurisdictional thresholds can create accountability gaps, especially in opaque multinational operations. Recent scholarship—such as Samantha Besson’s “Concurrent Responsibilities Under the European Convention on Human Rights” (2018) and Ryngaert’s “Extraterritorial Obligations Under Human Rights Law” (2018)—further explore the interplay between human rights law and state sovereignty.
3. Materials and Methods
This study employed a comparative legal analysis, combining a textual examination of the ILC’s Articles on ARSIWA with an analysis of key ECtHR’s judgments. Moreover, a critical assessment of scholarly critiques and doctrinal debates informed the identification and synthesis of emerging trends across both legal frameworks. The case studies were situated within broader themes of accountability, jurisdiction, and the evolving nature of multinational cooperation. The methodology helped bridge the theoretical analysis of state responsibility with practical insights derived from judicial reasoning, highlighting the dynamic interaction between international legal norms and regional human rights regimes.
4. Results and Discussion
The ECtHR’s reliance on effective control as a jurisdictional prerequisite under Article 1 of the ECHR imposes a higher evidentiary burden than the ILC’s model of concurrent responsibility. In Hussein v. Albania, the ECtHR rejected claims against 21 coalition states concerning detainee abuses in Iraq, citing insufficient evidence of direct control. Similarly, in Hess v. the United Kingdom (1975), the Court dismissed claims of responsibility arising from shared governance in post-war Berlin, treating jurisdiction as indivisible. However, the post-Al-Skeini jurisprudence reflects a shift towards a more functional conception of jurisdiction. In Al-Skeini v. the United Kingdom (2011), the ECtHR recognized the United Kingdom’s responsibility for deaths in Basra during the occupation, linking the exercise of jurisdiction to the performance of public powers even in the absence of formal territorial control. This sliding scale approach accommodates the allocation of obligations according to the degree of operational authority exercised, a principle subsequently affirmed in Jaloud v. the Netherlands (2014), where Dutch operational command over a checkpoint was sufficient to establish liability.
Despite these developments, the ECtHR’s emphasis on individualized responsibility risks perpetuating accountability gaps. For example, in WS v. Frontex (2023), the Court of Justice of the European Union (CJEU) dismissed claims against the EU Border and Coast Guard Agency on the basis of an insufficient direct causal link, highlighting the difficulties of attributing responsibility in decentralized and multinational operations. By contrast, the ILC’s framework, as illustrated by cases such as Mothers of Srebrenica v. the Netherlands (2019), provides greater flexibility by allowing responsibility to be attributed on the basis of shared effective control, even in complex multilateral contexts.
The ECtHR’s jurisprudence reflects a form of jurisdictional realism that prioritizes legal certainty over collective accountability. Although the cases of Al-Skeini and Jaloud represent significant developments in recognizing functional forms of control, the Court’s emphasis on direct causation and role-specific evidence may nevertheless limit accountability within opaque multinational frameworks. This stands in marked contrast to the ILC’s approach, which allows shared participation to give rise to concurrent responsibility. For example, the ECtHR’s rejection of responsibility in Hess v. the United Kingdom—despite the United Kingdom’s veto power over detainee conditions—illustrates the Court’s reluctance to engage with forms of indirect influence or systemic negligence.
The tension between these frameworks reflects broader debates within international law concerning whether accountability should be grounded primarily in territorial sovereignty or should instead accommodate the realities of collective governance. The ECtHR’s approach protects the autonomy of states but may also risk facilitating accountability avoidance within coalitions. Conversely, the ILC’s framework remains largely aspirational and lacks independent enforcement mechanisms. Scholarly proposals, including Besson’s concept of modular obligations and Larsen’s advocacy of positive duties in shared operations, seek to bridge this divide by developing intermediate approaches. Such approaches would hold states responsible for foreseeable harms that they had the capacity to prevent or mitigate through diplomatic, operational, or institutional means.
5. Conclusion
This analysis identified a doctrinal divide between the ILC’s universalist approach to accountability and the ECtHR’s jurisdictional pragmatism. Three reforms are proposed to bridge this gap. The first concerns the expansion of positive obligations. The states participating in joint operations should bear responsibility for using their influence and available means to prevent foreseeable human rights violations, even in the absence of direct control. The second involves the adoption of functional attribution standards. The ECtHR could incorporate the ILC’s effective control criterion under Article 8 of the ARSIWA into its jurisprudence, drawing on approaches reflected in the case of Mothers of Srebrenica to better address situations involving shared governance and responsibility. The third reform is to shift the evidentiary burden. In cases involving systemic violations, states should be required, where appropriate, to demonstrate that they lacked a meaningful role in the alleged collective harm, thereby reducing the evidentiary burden on claimants operating in opaque multinational contexts.
A harmonized doctrine should balance the ECtHR’s emphasis on jurisdictional clarity with the ILC’s broader conception of collective accountability, ensuring that states cannot exploit institutional ambiguities to evade accountability. By reconciling these paradigms, international law can better address the complexities of twenty-first-century multinational cooperation while upholding universal human rights.