Exercise of effective control Sample Clauses

Exercise of effective control. The precise meaning of effective control is covered by ambiguity, as different interpretations have been given to the term, which is understood either as ‘ultimate authority and control’ or as ‘effective operational control’. This section focuses, first, on understanding this distinction, and, next, on the specific criteria on the basis of which it is determined who exercises effec- tive control. The principle of effective control has been recognised by the ECthR, which explicitly referred to the work of the iLC, in Behrami and Behrami v France and Saramati v France, Germany and Norway in relation to the NATO forces in Kosovo.86 The ECthR accepted though that the decisive element for its interpretation was whether ‘the United Nations Security Council retained ultimate authority and control so that operational command only was delegated’.87 Thus, the Court interpreted the effective control criterion as the ‘ultimate authority and control’, which was placed on a higher posi- tion than ‘operational command’. in that case, the ECthR ruled that the UN had, in fact, ultimate authority and control as the Security Council had authorised the NATO force, had itself delegated a broad operational control 84 iCJ 27 June 1986, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v the United States of America), Merits, 27 June 1986, iCJ Reports 1986, par. 115. 85 Commentary to Article 7 XXxX, par. 7. 86 Behrami v. France, and Saramati v. France, Germany and Norway. 87 Behrami v. France, and Saramati v. France, Germany and Norway, par. 133. to NATO and kept receiving regular reports on the development of the operations.88 This interpretation was criticised as not capturing the spirit of the term, as it was envisaged by the iLC.89 in fact, the United Nations Secretary General has distanced himself from this reading, stating that ‘it is under- stood that the international responsibility of the United Nations will be limited in the extent of its effective operational control.’90 The ECthR interpre- tation has also been heavily criticised in literature.91 The ECthR however, did not move from its original position, which was retained to a large part in later case law.92 in line with how the iLC had envisaged effective control, was the deci- sion of the house of Lords in Al-Jedda,93 concerning British troops in iraq, authorised by the UN Security Council. Without fully disregarding the interpretation of the ECthR, the house of Lords found th...