Journal of Constitutional Law - Vol. 2 (2024)
Issue date: December 2024
Merab Turava: Foreword
Author: Eva Gotsiridze
Abstract
The Article concerns the concept of extraterritorial jurisdiction in the meaning of Article 1 of the European Convention of Human Rights (ECHR/the Convention) and its application in the interstate case of Georgia v. Russia (II) relating to the war of August 2008. The Article provides a critical assessment of the Judgment of the Grand Chamber of the European Court of Human Rights (ECtHR/the Court), according to which the events that occurred in the active phase of hostilities (8-12 August 2008) did not fall within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention, wich resulted in declaring this part of the interstate complaint inadmissible.
The article states that the arguments based on the applicability of international humanitarian law towards international conflicts, the exclusion of spontaneous extraterritorial acts from the scope of jurisdiction, the insufficiency of causal links, and the practice of non-derogation from Article 15 of the ECHR failed to establish a coherent and convincing legal basis for the judgment concerning the active phase of the war. According to the author, the circumstances of the case readily allowed the ECtHR to recognize the extraterritorial jurisdiction of the Russian Federation based on both the spatial model (“effective control over an area”) and, especially, on the personal model (“state agent authority and control over an individual”). Moreover, the Court could have expanded the substantive scope of these two concepts or established a new, third form of extraterritorial jurisdiction. According to the article, excluding the active phase of armed conflict from the scope of responsibility and accountability of a Convention-binding state grants implicit permission for such states to act beyond their borders in ways that would be prohibited under the Convention within their own territory.
The author of the article argues that the protection of human rights in Europe during armed conflicts should not remain beyond European supervision, especially when the risk of human vulnerability and the likelihood of victimization are increasing significantly due to extraterritorial military actions.
The article emphasizes the essential role that the concept of causality can play in the lawful determination of a state’s extraterritorial jurisdiction. The author argues that a jurisdictional link between the affected individuals and the respondent state’s extraterritorial actions should, in principle, be recognized if there is a causal connection between those actions and the alleged violation of the rights of individuals located beyond the state’s territory, provided that this connection was reasonably foreseeable. According to the author, the foreseeability of the causal link should be recognized as a factor that gives rise to a presumption of the existence of a jurisdictional link between the state committing the act and the relevant victim; resulting in the burden of proof shifting to the respondent state.
The article, among other issues, discusses the scope within which a state’s positive and negative obligations should be considered when committing an extraterritorial act concerning individuals located beyond the state’s territory who may be directly or indirectly affected by that act.
Paper: Concept of Extraterritorial Jurisdiction in the Prism of the Case Georgia V. Russia (II)
Pages: 9-43
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Author: Konstantin Korkelia
Abstract
The positive obligation to protect the right to life, as enshrined in Article 2 of the European Convention on Human Rights (ECHR/the Convention), extends to industrial activities that pose a danger to human life. In addition to the obligation to establish regulatory legislation aimed at preventing or minimizing risks arising from industrial activities that pose a threat to human life, the state is also obliged to undertake preventive and operational measures within the sphere of such hazardous industrial activities.
The aim of this paper is to analyze the compliance of the regulatory legislation and practice related to life-threatening industrial activities with European human rights standards. To achieve this, the article first reviews the European human rights standards concerning life-threatening industrial activities and defines the meaning and scope of the positive obligation to protect the right to life under Article 2 of the ECHR. It then examines the legislation and practice regulating life-threatening industrial activities in Georgia, analyzing their compliance with the relevant European standards.
Several conclusions have been drawn based on this analysis. Specifically, the analysis of the legislation regulating life-threatening industrial activities in Georgia has shown that the applicable legal (normative) framework, overall, adequately complies with the standards established by the case law of the European Court of Human Rights (ECtHR), which require states to implement preventive measures to ensure occupational safety in the workplace. In addition, the analysis of Georgian legislation revealed the need to introduce further technical standards in the country. As for the practice of conducting life-threatening industrial activities in Georgia, a troubling situation regarding industrial accidents was identified, with the highest number of fatalities occurring in the construction sector in recent years. Due to the high number of workplace fatalities in Georgia, it is necessary to strengthen the activities of the Labour Inspection Service by increasing the resources available to the Service. In light of the above, it is essential to implement effective measures both to further improve the legislation regulating industrial activities and to ensure its full enforcement, including by enhancing the effectiveness of the Labour Inspection Service.
Pages: 45-57
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Author: Niko Tatulashvili, Mariam Kharebashvili
Abstract
The constitutional reform implemented in 2017 brought substantial changes and established the principle of substantive equality between men and women within the constitution. The constitutional principle of equality, encompassing the implementation of targeted state measures to combat inequality, and women’s economic empowerment, as a crucial global concern, derives from its potential to advance equality.
This article delves into the principle of equality, entrenched in numerous international and national legal frameworks, and explores how the right to equality serves to eliminate the cornerstone of discriminatory practices and ensure women’s access to economic resources, opportunities, and decision-making processes. Highlighting the interconnectedness of women’s economic empowerment and fundamental human rights principles, underscores the necessity of embracing a comprehensive, rights-based approach.
The paper explores how the current national legislative framework addresses systematic barriers and examines the ways in which executive authorities incorporate a rights-based perspective to advance women’s economic empowerment.
By acknowledging and protecting the right to equality, parliament and government play significant influence in fostering inclusive economic growth and unlocking the full potential of women.
Paper: Women’s Economic Empowerment as an Important Component of Substantive Equality
Pages: 59-75
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Author: Levan Dzneladze
Abstract
The article addresses one of the pressing issues in criminal proceedings. The right to liberty is among the fundamental human rights protected under both national and international legal instruments. Interference with fundamental rights and freedoms in the course of criminal proceedings is justified only under exceptional circumstances. Detention represents the most severe form of preventive measure as it constitutes an extreme intervention against an individual and is directly associated with the deprivation of one of their most essential values: liberty. Prolonged detention and the burden of proof related to its justification remain significant challenges for the Georgian justice system. The aim of this research is to identify the problems surrounding the burden of proof in cases of prolonged detention and to outline the necessary measures to address them effectively.
Paper: The Problem of the Burden of Proof in Cases of Prolonged Detention
Pages: 77-98
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