On a State’s Positive Obligations in Situation of Armed Conflict and Temporarily Loss of Control Over Part of Its Territory

Based on comprehensive analysis of the European Court of Human Rights case law the article describes the scope and nature of state positive obligations in situation of armed conflict and effects of hostilities as well as temporarily loss of control over part of its territory. Touching relationship between International Humanitarian Law and International Human Rights Law,this article takes the continuing applicability of human rights law to protection of conflict-effected population as a starting point, which is proved by derogatory clauses of human rights treaties. Such provisions prohibit derogations from some human rights obligations even in time of war or other public emergency threatening the life of the nation. The scope of human rights positive obligations of a state at the time of armed conflicts covers a duty to ensure planning and control of operations involving the use of lethal force; obligations to take measures to protect individuals from the effects of hostilities including protection from unexploded remnants of wars; a duty to account for the fate of forcibly disappeared persons; a duty to protect from the rebels and other illegal armed groups; at last but not least, a wide range of positive obligations regarding the human rights of internally displaced persons. Exploring the situation of extra-territorial applicability of human rights law and temporarily loss of state control over part of its territory the article shows that a state does not cease to have jurisdiction within the meaning of Art. 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another state. Nevertheless, such situation reduces the scope of that jurisdiction which is considered only in the light of positive obligations towards persons within its territory. The State is obliged to continue to guarantee the enjoyment of the fundamental rights and freedoms as well as to attempt to reestablish its control over its whole territory by all available political, legal, judicial and diplomatic
means in line with international law. Identifying the scope of a state’s positive obligations, the fair balance between the general interest and the interests of the individual, the diversity of situations as well as available resources shall be considered since such obligations aimed not to impose an impossible or disproportionate burden.