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Positive Obligations Notes

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Positive obligations

Ilascu v Moldova and Russia - scope of positive obligations: "in determining the scope of a state's positive obligations, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, the diversity of situations obtaining in contracting states and the choices which must be made in terms of priorities and resources. Nor must these obligations be interpreted in such a way as to impose an impossible or disproportionate burden." In circumstances where a contracting party had lost effective control of part of its territory, that party nevertheless had a duty to use all appropriate legal and diplomatic means to continue to guarantee the protection of the rights and freedoms guaranteed by the convention. Judge Bratza dissented from the view expressed by the majority that the responsibility of a sate suffering a loss of control of part of its territory such as that experienced by Moldova would depend upon its sufficient efforts on the legal and diplomatic plane to guarantee convention rights. He did not see how the court could make a determination as to the sufficiency of the efforts made by the state as to the effectiveness of particular measures and as to whether they were possible and were adequately implemented. Judge Casadevall also dissented on the question of Moldova's responsibility. But for him and his colleagues the responsibility of Moldova should not be split but should be treated as existing continuously from the date of its ratification of the Convention in September 1997; any other approach would lead to the "paradoxical and incoherent" conclusion of the majority which split liability before and after May 2001. Judge Ress' dissenting opinion again related to the positive obligations of Moldova. Adding to the views of Judge Casadevall, whose partly dissenting opinion he had joined, Judge Ress notes that the scope of the jurisdiction of Moldova for the whole of its territory remained the same throughout. What may have fluctuated was its responsibility as a result of its inability to exercise effective control over a part of its territory.

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