Territorial jurisdiction during the active phase of hostilities: Shavlokhova and Others v Georgia

Abstract

In Shavlokhova v Georgia, the European Court of Human Rights held that Georgia's territorial jurisdiction during the Russo-Georgian five-day war had been limited due to "'acts of war', in a context of chaos". The claim was therefore found to be inadmissible, an outcome reached by the Chamber relying on the same rationale it developed for Russia's extraterritorial jurisdiction in Georgia v Russia (II). This article delves into the Chamber's approach in Shavlokhova, which in the authors' view ignores the inherent differences of territorial and extraterritorial jurisdiction. By combining Ilascu v Moldova with Georgia v Russia (II) and conflating jurisdiction with attribution, the Chamber developed a controversial test for territorial jurisdiction in times of war; this led also to a legal vacuum, whereby neither Georgia nor Russia exercised (extra)territorial jurisdiction during the time period concerned.