CONCURRING OPINION OF JUDGE SAHAKYAN

Although I agree with the final conclusions of the Court, I cannot subscribe to the reasoning and arguments – or rather the absence thereof – employed in establishing the jurisdiction of the Republic of Armenia under Article 1 of the Convention. The majority essentially came up with a truncated line of argument by simply making reference to the Grand Chamber judgment in Chiragov and Others v. Armenia (no. 13216/05, §§ 169-186, ECHR 2015). Such an approach, in my opinion, is not only unjustified in terms of the clarity required of international judicial institutions in the application of established principles, but also liable to lead to further confusion between the different standards of extraterritorial jurisdiction and attribution.

The case at hand is a clear-cut example of a “State agent authority and control” exception, as the judgment itself recognises in the description of the factual circumstances of the case. In such situations, extraterritorial jurisdiction is established on account of the fact that individuals and persons fall under the control of State agents operating on a territory outside of the recognised territorial boundaries of that State. This exception is clearly different and distinguishable from the “effective and overall control over a territory” exception, of which the Cyprus cases, addressed in more detail below, stand as a classic example. The difference between the “State agent authority and control” exception and the “effective control over an area” exception has been vividly described by the Court in its Al-Skeini and Others v. the United Kingdom judgm ent ([GC], no. 55721/07, §§ 133 ‑ 140, ECHR 2011). In that case the Court stated as follows:

“[A]s an exception to the principle of territoriality, a Contracting State ’ s jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its own territory ... The statement of principle, as it appears in [the case-law], is very broad: the Court states merely that the Contracting Party ’ s responsibility ‘ can be involved ’ in these circumstances” (ibid., § 133). ”

One such case, according to the Court, is the situation in which “through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government” (ibid., § 135).

Hence, the Court clarified its position as follows:

“[W]here, in accordance with custom, treaty or other agreement , authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State” [emphasis added] (ibid . ; see also Drozd and Janousek v. France and Spain , [GC], no. 12747/7, § 91, 26 June 1992). ”

I fail to see any reason whatsoever why the said principle should not apply equally with regard to non-recognised States or non-State actors which have the core attributes of statehood. Whether or not the entity entering into an agreement with a State and providing its consent to that State exercising certain forms of jurisdiction over its territory is itself a State does not alter the nature of the State ’ s involvement or the attribution of acts of that State ’ s officials. In both cases these will be acts of that State ’ s agents exercising official functions on a territory controlled by a different entity, whatever that entity ’ s international legal personality under public international law.

Applying the language of the International Law Commission ’ s Articles on Responsibility of States for Internationally Wrongful Acts (“ASR”), the conduct of organs of a State can be defined as follows:

“1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal law of the State (GA Resolution 56/83, Annex, UN Doc. A/56/589, 28 January 2002).”

It is through such conduct of State organs exercising government functions that the jurisdiction of the Republic of Armenia over the applicants is established in the case at hand. The geographical location of such conduct or the nature of the entity consenting to the exercise of such conduct is thus completely irrelevant for the purposes of attribution of the conduct and the establishment of jurisdiction through such conduct.

In this connection it is also important to reiterate that, unlike the situation in Cyprus (and many other situations involving non-State actors or unrecognised States), the Security Council has never called on the international community not to recognise the Nagorno-Karabakh Republic. Thus, there has never been an act of collective non-recognition by the international community.

With regard to the situation in Cyprus, Security Council Resolution 541 explicitly deplored “the declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus” and described it as “invalid”. The Security Council further called upon all States “not to recognize any Cypriot State other t han the Republic of Cyprus” (SC Resolution 541, 18 November 1983, paragraphs 1, 2 and 7).

The Security Council acted in a similar way in the case of Southern Rhodesia, where it decided to “call upon all States not to recognize this illegal racist minority regime in Southern Rhodesia” (SC Resolution 216 (1965), 12 November 1965, paragraph 2) and called upon “all States ... not to entertain any diplomatic or other relations with it” (SC Resolution 217 (1965), 20 November 1965, paragraph 6), and in the case of the Republika Srpska, in respect of which the Security Council strongly affirmed “that any entities unilaterally declared or arrangements imposed in contravention [of the territorial integrity of Bosnia and Herzegovina] will not be accepted” (SC Resolution 787 (1992), UN Doc. S/RES/787, 16 November 1992, paragraph 3).

This, however, has never been the case with the Nagorno-Karabakh Republic. None of the Security Council resolutions addressing the situation in the Nagorno-Karabakh Republic (Resolutions 822 of 30 April 1993, 853 of 29 July 1993, 874 of 14 October 1993 and 884 of 12 November 1993) has ever gone so far as to question the lawfulness of the declaration of independence of the NKR or to call upon the international community not to recognise the NKR.

Hence, in the case at hand, the Agreement of 25 June 1994 on Military Cooperation between the Government of Armenia and the Government of the Nagorno-Karabakh Republic plays a central role, by clearly providing for the jurisdiction of the Armenian authorities over Armenian conscripts serving on the territory of the Nagorno-Karabakh Republic. This factor plays a key role in establishing the jurisdiction of the Republic of Armenia and is a fact neglected by the Court.

The reference to the case of Chiragov and Others v. Armenia is thus not warranted. Using this line of argument in order to establish jurisdiction would be justified if the Chiragov judgment amounted to an establishment of Armenia ’ s jurisdiction over the territory of NKR and surrounding territories through control by Armenia, and if the acts at issue were attributable to the NKR authorities instead of the Armenian authorities .

Thus, in its Al-Skeini judgment the Court clarified its position as follows:

“Another exception to the principle that jurisdiction under Article 1 is limited to a State ’ s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State ’ s own armed forces, or through a subordinate local administration .... Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State ’ s military and other support entails that State ’ s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights” ( Al-Skeini , § 138; see also Catan and Others v. Moldova and Russia , [GC] nos. 43370/04, 8252/05 and 18454/06 , § 106, 19 October 2012). ”

Hence, the “effective control over an area” exception applies in situations where the violation is attributable to the local administration; however, the need to establish such attribution is obviated by the fact that the territory is overwhelmingly controlled by a State Party to the Convention, whose responsibility is thus engaged.

Similarly, in Cyprus v. Turkey ([GC], no. 25781/94, § 77, ECHR 2001 ‑ IV), the Court stated as follows:

“[I]t is to be observed that the Court ’ s reasoning is framed in terms of a broad statement of principle as regards Turkey ’ s general responsibility under the Convention for the policies and actions of the ‘ TRNC ’ authorities. Having effective overall control over northern Cyprus, its responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey ’ s ‘ jurisdiction ’ must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey.”

In the case at hand we are not talking about Armenia ’ s responsibility under the Convention for the policies and actions of the Nagorno-Karabakh authorities. Instead, the issue is Armenia ’ s responsibility under the Convention for the actions of the Armenian authorities on a territory outside of its internationally recognised borders.

Consequently, this case deals with the acts of a State on the territory of a non-State-actor or an unrecognised State with which it has, as stated in Chiragov , a “high degree of integration” (whatever the meaning of that concept may be under international law). As such it is distinct both in fact and in law, as well as in the way in which the State ’ s responsibility is engaged, from situations that deal with the acts of a non-State actor existing on a territory with a significant military presence of a member State (“effective and overall control”, as applied in the Cyprus cases).

I therefore believe that Armenia has jurisdiction, but for a completely different reason, namely the direct involvement of its agents, and I also find the reference to the Chiragov judgment to be immaterial.