The Change in Tune. Xxxxxx and others v. Moldova and Russia in 2004, a similar case came before the Grand Chamber of the European Court of Human Rights: Xxxxxx and others v. Moldova and Russia, which concerned political prisoners detained in the so-called ‘Moldavian Republic of Transdniestria’ (MRT), a secessionist entity, and was brought by the applicants against both Moldova as the state with sovereignty, and Russia as the state allegedly with control.159 in line with the requirements of Article 1 ECHR, the Court first had to determine whether the applicants came within the jurisdiction of Moldova and Russia. Discussing the legal principles applicable in respect of the state with sovereignty, the ECtHR stated that ‘jurisdiction is presumed to be exercised normally throughout the State’s territory.’160 While the Court noted that ‘[t]his presumption may be limited in exceptional circumstances’, it also held that positive ‘obligations remain even where the exercise of the State’s authority is limited in part of its territory, so that it has a duty to take all the appropriate measures which it is still within its power to take.’161 Applying these principles to the concrete situation of Moldova, the ECtHR held that the state’s lack of effective control ‘reduces the scope of [its] jurisdiction in that the undertaking given by the State under Article 1 [ECHR] must be considered by the Court only in the light of the Contracting State’s positive obligations towards persons within its territory.’162 This conceptual construction of the problem is unfortunate in that it suggests that only the Convention’s positive obligations remain applicable in such territories. instead, the more accurate conceptualization is that neither the scope of the state’s jurisdiction, nor the scope of its obligations is altered by the loss of control over part of its territory; what is affected is the state’s capability. in other words, the Convention remains applicable in its entirety 159 Ilaşcu, paras. 3, 28-289. 160 Ibid., para. 312. 161 Ibid., para. 313; see also para. 333. X. Xxxxxx, in ‘Out of Control – State Responsibility and Human Rights: Will the iLC’s Definition of the ‘Act of State’ meet the Challenges of the 21st Century?’, in: X. Xxxxxxxxxx-Xxxxxxxx, X. xxx Xxxx & X. Xxxxx (eds.), The Role of the Nation State in the 21st Century: Human Rights, International Organisations and Foreign Policy – Essays in Honour of Xxxxx Xxxxx (The Xxxxx: Kluwer, 1998), 91, at 112-114, made this argument already in...
