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South Ossetia: rights and freedoms in an unrecognised state

Article by Caucasian Knot and Alan Parastaev

September 26, 2019

South Ossetia: rights and freedoms in an unrecognised state

Writing an article about the human rights situation in South Ossetia is a difficult task. First, no one has done this for a long time. Secondly, there is a problem with the lack of information: data is difficult to access, regular monitoring is not carried out, there are few reports from independent human rights organisations, and even simple observations by external journalists or experts are rare. One of the main reasons for this situation is that international human rights institutions, such as Organisation for Security and Co-operation in Europe (OSCE), Council of Europe and UN mechanisms are not able to visit South Ossetia. In turn, Russian human rights activists do not show enough interest in working in the republic. Therefore, the material is largely prepared on the basis of the observations, memories, personal experience and understanding of the authors of this essay, building upon their past work in this field. These are sketches on the topic of human rights work in a partially recognised state. They should serve as a catalyst for non-governmental organisations (NGOs) in South Ossetia to start a full-fledged work, primarily in the format of monitoring and collecting relevant information.

Practically all respondents[1] with whom the author managed to talk communicated the same thesis: despite the ‘non-recognition’ and the extremely small impact of international and civil rights organisations on society, the situation with human rights and their observance in South Ossetia is not in a bad or dangerous condition.

In fact since 2012, following the election of then President Leonid Tibilov, political opponents are no longer being prosecuted and eliminated physically in South Ossetia.[2] Political dissenters are not being detained in prison for years without a charge. Of course, isolated instances of pressure have taken place and still do, but they are known to South Ossetian society, they have been written[3] about widely and regularly. South Ossetian society, at least its politically active part, has developed its attitude to such facts and to their organisers and initiators. Those political forces under whose rule such actions were committed are no longer in power, thanks in large part to the critical attitude of the population and to the non-acceptance of such methods of political struggle by the people.

Restrictions on rights as a result of non-recognition of South Ossetia

The problem of international recognition or rather, the ‘non-recognition’ of the republic, in particular by the United Nations (UN) and other international organisations, remains the fundamental issue of the observance of human rights in South Ossetia. The ‘non-recognition’ does not directly affect the level and quality of the observance of human rights, but due to the impossibility of carrying out a high-quality monitoring it impedes a full-fledged observance of human rights in the format of international standards. On the other hand, there are dozens of countries around the world, including those initially recognised, meeting in the UN and other international organisations, where membership implies the obligation to respect human rights and to provide access to monitoring, and where the humanitarian situation is substantially worse than in the Republic of South Ossetia.

The Presidency of Mikhail Saakashvili in Georgia saw perhaps the most active period of international engagement in the country, including from those working in the human rights sphere. Today, more and more facts about the human rights violations committed by the then security forces are being revealed, most of them concern violence used against prisoners and persons under investigation.

At the same time, the tendency of ‘linking’ the formation of human rights protection with the process of international recognition of South Ossetia is detrimental to both, in any case from the point of view of citizens of an unrecognised country. When Ossetians are told that they are not recognised, and that any benefits provided by the human rights system are therefore not available to them, they do not understand why and how this can happen. From the point of view of the South Ossetian man in the street, the international community declares that everyone is equal, at least when it comes to people´s rights. Nowhere has it been stated that citizens of recognised states are more equal than citizens of unrecognised ones. But Ossetians constantly face a situation where human rights and international organisations refuse to work in South Ossetia or with South Ossetia, explaining that they cannot and do not have the right to write the name of the Republic in their working papers for example and the authorities are unwilling to allow access by international organisations that do not accept their independence (and formally see them as part of Georgia) particularly in the post-2008 context where Russia has recognised South Ossetia’s claims.

Such an approach is perceived painfully in South Ossetian society. Understanding this, opponents of South Ossetia’s integration into the European community of nations constantly use this situation to their advantage, mentioning in speeches and publications that the Europeans, even in the name of NGOs, not only does not recognise us, but also supports the territorial integrity of Georgia, our potential adversary.

Limitations in human rights protection access are painful for Ossetians for another reason as well, because our independence was born on human rights grounds. It was Georgia’s attempts in the early 1990s to restrict Ossetians in their rights based on ethnicity (forcing them to use Georgian language, depriving them of cultural autonomy, evicting Ossetians from the interior of Georgia, illegal detentions, abductions, torture, violence and murder of people who were not involved in national Ossetian movements or armed formations) that led to the emergence of Ossetian resistance, first social and political, and then military.[4] 

It was the nationalist policies of the Georgian authorities, under both the Communist Party and Zviad Gamsakhurdia, who triggered the ‘Adamon Nykhas’, the South Ossetian Front for Support of Democracy and Perestroika to transform into a popular front for independence. That is, there is in the mind of any South Ossetian a deep understanding that the independence and the proclamation of the republic is the way to salvation from oppression on ethnic grounds, in other words, it is the answer to violations of Ossetians´ rights by Georgian authorities. Adamon Nykhas does not exist today as an operating organisation, although its active participants continue to meet, anniversaries[5] of its founding are celebrated at the official level, but the organisation does not take part in real politics or human rights activities, although initiatives to revive it are periodically taken.

What rights do Ossetians want to defend, and who is defending them?

There are virtually no human rights organisations in South Ossetia today, nor human rights activists, or any system for the protection of human rights. Yes, there are such organisations as ‘Journalists for Human Rights’, ‘The Jurists´ Association’, ‘Women for Human Rights’, etc., but in our opinion they do not work in the format and at the level that human rights work implies. NGOs that do not position themselves as human rights defenders, are in fact forced to be active in human rights activities as well participating in public protests in defense of their rights, such as the winter 2011-12 protests in Theatre Square. 

No matter how much the critics of the South Ossetian political system may speak up, it is in fact a democratic state, governed by the rule of law though with problems that it is trying to solve within the constraints it faces. The republic was conceived this way from the very beginning, and this principle could not be destroyed either by numerous wars with Georgia, by recognition from the Russian Federation, or by the presidential regimes, no matter how much they tried. Our unrecognised state could simply not have withstood and still stand without the principles of human rights protection.

Millions of euros from the budget and from charitable foundations are spent on the development and simple existence of human rights structures in the West, thousands of employees are working for them. South Ossetia has no such opportunity. The role of the human rights system in South Ossetia is played by the President. Having understood all the ‘charm’ of playing the role of an ‘authoritarian human rights activist’, having calculated all the advantages that can be achieved that way, no president, having once received such a prerogative, will ever give it away to anyone.

The most demanded right among the Ossetians is the right to live, and it was largely implemented in 2008, thanks to the entry of armed forces into the Republic of South Ossetia and the recognition of South Ossetia´s independence by Russia. Protection of the rights of those South Ossetian citizens who were arrested and taken hostage on the territory of Georgia was relevant until those fateful events.

The state guarantees sufficiently the citizens´ rights. As already mentioned, Ossetians do not experience persecution for our political or religious views. This is regulated both by laws, and by unspoken practices established in society, by traditional behavior algorithms, and by concepts rooted in the public consciousness, that for some can amount to a culture of self-censorship.

Last year’s campaign to close the organisation Jehovah’s Witnesses is more likely to be attributed to the tendency of replicating the processes taking place in the Russian Federation’s socio-political sphere, especially if they are caused by another aggravation of relations with the West. Jehovah’s Witnesses continue to gather and hold services in South Ossetia. It is unhealthy when state structures conduct certain actions for the sake of appearance. They issue regulations, but do not observe them in practice.

The authorities do not in general tend to persecute people on political or other grounds. The adoption of the law ‘On Non-Profit Organisations’ in 2014[6], which introduced the term ‘foreign partner’ into legal proceedings, triggered great concern. The deliberate rejection of the term ‘agent’ is noteworthy. It is used in both in Russia and the United States, but it evokes obvious negative associations. NGOs with that status receive money from abroad. They have to submit information to the controlling authorities, specifying the sources of their projects and program funding, indicating the goals and objectives that the received funds will be spent on. To date there are no examples showing that this law is used by the authorities to harass political opponents or enemies however such rules can be seen to add a bureaucratic burden to NGOs and may risk having a potential chilling effect that dissuades organisations from taking international funding. According to the Ministry of Justice of South Ossetia, 160 NGOs were registered in the republic on 1st January 2019. Only seven of them have the status of ‘foreign partner’. With the exception of the organisation ‘Journalists for Human Rights’, which operates in the framework of UN projects, all of them receive funding from Russia.

On the other hand, the facts of violence used by law enforcement agencies, the Ministry of Interior and the Prosecutor’s Office are clear. Suspects and sometimes just detainees, are subjected to pressure[7] and threats. These are not isolated incidents, they take place regularly. Another problem is also exposed here – the reluctance of victims of violence and their relatives to act according to the law: to complain and to sue the responsible officials. People rely more on ‘personal connections’ when solving their problems.

Simply put, there is no understanding by the victims that hiding a crime, especially one committed by an official, because of a reluctance to initiate cases on violence before a court, actually increases the likelihood of a relapse of the system. Also it increases the likelihood of this kind of crime being repeated against their fellow citizens, who often turn out to be close friends. There is no public responsibility. In most of these cases, the perpetrator and the victim come to an agreement on certain conditions.

The institution of the Ombudsman[8] remains almost the only human rights institution in the republic that can be defined as such. It was most active in the period 2004–2008 between the two main armed phases of the conflict, even though armed clashed did not cease during this period and in fact aggressions from the Georgian authorities against South Ossetia resumed. Despite that, the Organisation for Security and Co-operation in Europe (OSCE) mission worked actively in South Ossetia at that time, and the defender’s apparatus cooperated with OSCE. It was a positive example of an international organisation´s work in the context of non-recognition.

The South Ossetian side resolved issues related to incidents in border areas through the OSCE. These were basically detentions of South Ossetian citizens by Georgian law enforcement agencies, which often ended in criminal cases and arrests under various pretexts. With OSCE mediation, such cases often ended in exchanges or simply in release of the detainees. Several cases concerned posts that the Georgian armed units had set up at the entrances to the Ossetian villages, complicating or blocking access to the villages both for their local permanent residents and South Ossetian citizens, as well as for those living in Tskhinval and other settlements in the Republic of South Ossetia.

Along with actions undertaken in conflict situations related to the consequences of the Ossetian-Georgian conflict, the present time is characterised by the intensification of the human rights work done both by the Ombudsman and by a number of South Ossetian human rights defenders and civil society activists in purely internal matters. This includes dismissing a civil servant, raising the issue of treatment of imprisoned persons, protecting the rights of transit passengers, that is citizens of Armenia and Azerbaijan, activating the civil society, and supporting civil non-governmental initiatives.

Stalinism and the request ‘for justice’

Much is said about such a phenomenon as the popularity of Stalin and the support of his state policy by the Ossetians. As sociological studies show, this is not a distinctive feature only of Ossetians. According to the latest survey carried out by Levada Center[9] in Russia, the level of Stalin´s popularity has broken a historic record. Another part of the Ossetians is no less firmly convinced that Ossetians were particularly subjected to the most large-scale repressions during the years of Stalin’s rule. 

Two such perceptions of Stalinism can coexist only in one case – when people find a positive element in Stalinism that they cannot find in today’s reality. This positive element, which they associate with ‘justice’, is glorified and mythologised. Justice is understood as human equality before the law, even if this law is transformed by the ‘Stalinists’ into Stalin himself. Justice is expressed in equal punishment for violating the law, both for the peasant and for the minister, even if he just yesterday was the closest person to the leader himself. Even though the punishment of former comrades-in-arms had nothing to do with the law observance, it was presented and became imprinted in social memory in particularly that way. Today it continues to be presented in the same manner by the propagandists of Stalinism. It is difficult to set anything against it in the absence of a full-fledged human rights system.

Some of the most controversial cases that took place in the years after the proclamation of independence of South Ossetia and the conflict with Georgia, actually had their own financial, economic and criminal background. Making a criminal be perceived as the victim of political repression is just as wrong as making someone a victim of political persecutions or ethnically-based persecutions as the result of actions by a criminal authority or an ordinary. However, such cases occur when human rights defenders and journalists interpret them as the persecutions based on national or political grounds, while in fact they contain much bigger monetary and sometimes criminal components.

Such manipulations with facts trigger, among other things, requirements of a fair punishment of the perpetrator, embodied in the myth of the incorruptible ruler of justice, the selfless and noble Stalin. The history of repressions and deportations is, at best, forgotten or left in the background; at worst, people draw a direct link between repression and justice. And this is also due to the lack of human rights defenders.

Without training the local South Ossetian activists to become specialists who will later be able to monitor the current human rights situation, to prepare analytical materials and to offer further recommendations, a full-fledged work in any of the human rights areas is hardly possible.


Authors’ bios:

Gregory Shvedov is a Russian human rights activist and journalist, known for his efforts in promoting human rights in Russia, most notably in the Caucasus region. He is currently the editor-in-chief of the Caucasian Knot, an online news medium established to provide unbiased information regarding political oppression, human rights violations, and the ongoing violent conflict throughout the region. In 2012, he received the Geuzenpenning for his efforts.

Alan Parastaev is a blogger and NGO activist who writes about civil society in South Ossetia, including human rights.

Photo by President of Russia, Russian-South Ossetian negotiations, November 2017, http://kremlin.ru/events/president/news/56074/photos. No modifications to photo. Creative commons licence, https://creativecommons.org/licenses/by/4.0/deed.en

[1] The respondents wished to preserve anonymity. It is advisable in this material not to attract the attention of the authorities and law enforcement structures to the respondents, this may complicate further work with them in the future.

[2] During the current Presidency of Anatoly Bibilov there has been the arrest and conviction of former Minister of Telecommunications Georgy Kabisov whose supporters believe the prosecution to be politically motivated while the Prosecutors Office presents the case as tackling corruption from the period of Eduard Kokoity’s presidency. There are many who saw the cases of Alan Parastaev (the former de facto Minister not the co-author if this essay) and the Khubezhov brothers has having political motivations

[3] Arsen Kozaev, The Opposition accused South Ossetian authorities of trying to eliminate non-parliamentary parties, Caucasian Knot, August 2015,https://www.kavkaz-uzel.eu/articles/266496/; Caucasian Knot, Vladikavkaz court has sentenced Soslan Kokoyev to three years in prison, April 2012, https://www.kavkaz-uzel.eu/articles/204356/

[4] For background on the South Ossetian de facto administration’s views on the matter  see Caucasian Knot, South Ossetia recalls victims of refugee execution, May 2006, https://www.kavkaz-uzel.eu/articles/95029/

[5] Society, Faded Glory ‘Adam Nyhas’, Ekho Kavkaza, November 2018,  https://www.ekhokavkaza.com/a/29579675.html

[6] Maria Kotaeva, In South Ossetia, the law on NGOs has been passed in the final reading, Caucasian Knot, May 2014, https://www.kavkaz-uzel.eu/articles/242564/

[7] Caucasian Knot, Former head of the Ministry of Communications of South Ossetia went on a hunger strike in jail, July 2018, https://www.kavkaz-uzel.eu/articles/322964/

[8] Information on the activities of the Ombudsman is provided by the office of the public defender, based on annual reports

[9] Levada Center Newsletter, Dynamics of attitudes towards Stalin, Levada Center, April 2016, https://www.levada.ru/2019/04/16/dinamika-otnosheniya-k-stalinu/

Footnotes
    Related Articles

    Georgia’s responses to ‘borderisation’

    Article by Mariam Uberi

    Georgia’s responses to ‘borderisation’

    Existing conflict: overview[1]

    Eleven years since Russia’s invasion of Georgia, Russia still seeks to erode Georgia’s sovereignty and has a detrimental impact on its human rights record. In a process of creeping ‘borderisation’[2] Russia and de facto Abkhaz and South Ossetian authorities have encroached upon 40 Georgian villages adjacent to the administrative boundary lines (ABLs) in South Ossetia and Abkhazia, negatively affecting all communities across the ABLs.[3]

    Long before the run up to the ‘five day war’ Georgia lost control over South Ossetian territories in 1992 and in Abkhazia in 1994 amidst an armed conflict that broke out with Georgia and separatist forces.[4] In 1994 Georgia entered the Commonwealth of Independent states (CIS) agreement which mandated the presence of the Russian CIS peacekeepers in South Ossetia and Abkhazia to establish a truce and secure peace in the region. Since then the Russian Federation provided direct financial assistance to the separatist regimes by funding public salaries, infrastructure and budgetary expenses for the de facto authorities. Russia has also carried out a so called ‘passportisation’ policy that includes granting Russian citizenship en masse to persons living in South Ossetia and Abkhazia.[5] Russia was quick in signing an Alliance and Integrationtreaty with Abkhazia and South Ossetia to create common foreign policy and economic space[6] and later an agreement to formally merge the region’s militia into the Russian armed forces.[7]

    The borders and illegal process of ‘borderisation’ has been largely contested by the parties to the conflict. Russia and the de facto authorities claim to have followed the military map of the Soviet Union whilst drawing up the ABLs.[8] The de facto authorities consider that erecting fences mitigates risks of violating borders and simplifies the life of local residents.[9] The Georgian authorities refused to take part in a demarcation commission, as such an action would be seen as equal to Georgia recognising the independence of its breakaway regions.[10] Restriction of the right to freedom of movement has been a significant challenge for the local residents living near the ABLs. The number of people who cross over from South Ossetia to access several services in Georgia has been increasing over the years. Some of them are being detained by the Russian troops whilst some still manage to enter the capital of Georgia to access different services.[11] Ethnic Georgians living near the ABLs are faced with arbitrary arrests, ill treatment and unlawful killing by the de facto authorities and the Russian Security Service guards. 

    ‘Borderisation’ 

    This ‘borderisation’ occurred in waves, the first taking place two months after the end of armed hostilities in 2008, the second in 2011 and then there was an increase in intensity of such activity in 2013.[12] The trend of ‘borderisation’, and the reason why it occurred in such waves, has not been thoroughly studied by the Georgian authorities. Demarcation in South Ossetia included 60 km of security fences and surveillance towers,[13] as well as ploughed lines.[14] In the Abkhaz theatre, physical borders include over 30 km of fences, surveillance towers with an ABL coverage of 25 km.[15] These lines of demarcation have had a detrimental effect on communities on both sides of the ABL by cutting off access to local villagers’ livelihoods and leaving them feeling ‘suffocated’.[16]

    Since 2009, the Public Defender of Georgia has stated that 840 ethnic Georgians have been detained for ‘illegally crossing’ the self-declared boundaries, the highest number to date was in 2016.[17] However, getting accurate statistics is difficult given the challenging nature of the conflict. Although the Georgian authorities have information about detentions of ethnic Georgians who are handed back to the Georgian side, it is suggested that some Georgian detainees are released after a ransom demand was met and therefore do not make it into the Georgian records.[18]

    There has been an increase in the number of military exercises, with shootings in proximity of military bases in Abkhazia and South Ossetia around the ABLs. This, coupled with trespassing by Russian border guards further into the Georgian controlled territories on local residents’ property and arbitrarily arresting locals in their orchards, village roads and graveyards has exacerbated local residents’ fear of further armed conflict.[19] 2016 marked not only a higher incidence of Georgian detainees along the ABLs but was followed by the killing of Giorgi Otkhozoria,[20] Archil Taunashvili[21] and David Basharuli.[22] 

    Khurcha is the only village under the control of the Georgian authorities on the other side of the Enguri River and a Georgian police post has been located at the end of the village since 2013. Georgian police regularly patrol around the villages.[23] However local communities face Russian and de facto Abkhaz guards when crossing the Enguri Bridge. The killing of Giorgi Otkhozoria at the Russian-Abkhaz checkpoint in Khurcha highlighted the deep vulnerabilities of Georgian civilians living along the ABLs.[24]

    Between January and April 2019 some 32 Georgian civilians were arrested, a figure relatively high compared to the 19 Georgian civilians arrested for the same period in 2018. Recent incidents demonstrate that Russian border guards violate border signposts and walk some two hundred to five hundred meters away from the barbed wire[25] into Georgian controlled territory to intimidate or arrest locals.[26] In 2018, in separate incidents, a man and a woman were snatched from the back of a garden located even further away from the ABL, within Georgian controlled territory.[27] There has been several incidents of houses being cut in half by the fence of the ABL in the village of Gugutiantkari[28] and Pakhulani.[29] In a similar case a person living in a house split by the fence was detained several times after crossing his yard and coming to Georgia.[30]

    ‘Borderisation’ has been marked as one of the main security threats by the Georgian security service.[31]

    According to the Georgian authorities, the decision on introducing extra police posts, patrols or other additional measures are subject to a closer scrutiny. Decision making is based on the existing security situation, threats posed to the local population and actions perpetrated by the occupying forces.[32] The Minister of Interior whilst visiting the police station in Shida kartli municipality near the ABL highlighted the importance of ensuring the ‘‘protection of the local population’’ and a ‘‘rational response’’ to the outside security threats.[33] Soon after the end of the armed hostilities in 2008, mine explosions along the ABLs claimed the lives of 12 police officers.[34] This was followed by an injury of three and a death of one police officer after the Russian FSB soldiers fired at the Georgian patrolling officers.[35] In an obvious absence of any option for military intervention, Georgia has been extremely cautious in responding to the upsurge of borderisation. This has been eagerly exploited by the Russian Federation in eroding on Georgia’s sovereignty.

    The Human Rights Centre (HRIDC), a Georgian NGO, highlighted incidents of arbitrary arrests due to inadequate marking by the Georgian authorities and those affected feel that there is a need for Georgia to reinforce patrolling against the Russian border guards. There are incidents of Georgian civilians inadvertently violating the border amidst the absence of tables or markers in the woods marking the ABLs. As one of the local residents put it, in the absence of any barbed wires one must be lucky not to be caught.[36]

    Locals argue that the presence of the Georgian patrols would deter the Russian border guards from illegally abducting Georgians in the area. In 2015, in two villages of Tsalenjika Municipality, the local population requested the introduction of a police post but the Ministry of Interior determined that patrolling was sufficient.[37] In 2018, the residents in the village of Korbali complained that Georgian police did not patrol frequently enough.[38] In a recent incident in Gugutiantkari, Gori municipality local residents have expressed their fear of being left to their own devices in the face of the Russian FSB and requested a Georgian Police post next to the newly erected fences.[39] Prior to this locals also requested the creation of police stations in Jariasheni and Bershueti.[40] After such incidents, patrols are intensified for a few days but then revert to their previous levels.[41] After another incident police officers refused to help a former detainee arrested by Russian border guards who had ambushed and ill-treated him on a Georgian controlled territory for fear of retribution.[42]

    In the wake of this precarious situation there is an apparent lack of interagency cooperation and crisis management amongst state actors on ‘borderisation’. This was demonstrated by the incident in Khurvaleti village in March 2019 where residents produced ‘photographic evidence’, albeit old, of Russian border guards trespassing into their gardens. The Mayor of Gori confirmed that three masked Russian army officers trespassed into Georgian territory, but the State Security Agency denied the Mayor’s statement and claimed that there was no such incident until it was later verified by the Incident Prevention and Response Mechanism (IPRM) hotline, a facility explained later in this essay.[43] The European Union Monitoring Mission (EUMM) later confirmed that the incident did not take place.[44] In a recent incident in Gugutiantkari in August 2019, the Georgian Ministry of Foreign Affairs had announced that the ‘borderisation’ process had been stopped after using pressure from all existing international mechanisms.[45] Despite this the Russian FSB border guards continued erecting fences the next day, soon after the announcement, forcing two families to dismantle their own houses damaged during the war and cutting their access to orchids.[46] An apparent lack of official comment from the side of the Prime Minister and the President of Georgia has been swiftly picked up by the media.[47] A lack of communication to engage and inform the public has produced much speculation on an issue that had exacerbated an already tense situation. This incident corroborated accusations of a lack of coordinated response and cooperation among political actors regarding ‘borderisation’.

    Economic and social vulnerabilities 

    The Georgian state interim commission, created especially to address socio-economic vulnerabilities alongside the ABLs, had been a useful initiative improving previously dire conditions.[48] However, research shows that local civilians still do not have an adequate support system that meets their needs. Harsh security conditions across the ABLs are further aggravated by the lack of access to clean water and gas, the taxing electricity cost which appears high for economically impoverished communities with no constant financial income. Locals faced with the risk of being arrested for ‘illegal border crossing’ while out collecting wood. The main gas pipe only reaches around 20 thousand users.[49]

    During 2017 and 2018 the government allocated a wood area for the locals in villages in a number of municipalities adjacent to the ABLs of South Ossetia and Abkhazia and extended single payments of 200 GEL to households for winterisation.[50] However, disbursement of vouchers to collect the wood are often delayed, making it harder for households to access the woods and a single payment is usually not sufficient during the winter months.[51]

    In 2017 an interim state commission marked the beginning of well construction in a number of villages in the Gori, Kareli and Kaspi municipalities, including the village of Bershueti where he particularly highlighted the lack of drinking water and where residents must obtain it from the neighbouring village.[52] According to the authorities, irrigation water has been provided in the village of Zardiaantkari since 2017 in spite of the HRIDC stating that there is a significant problem due to the irrigation pipe not reaching the agricultural land in the village.[53] In the absence of water for irrigation, people cannot engage in agriculture and pastures are not accessible.[54]

    The border village of Zardiaantari has been described as a microcosm of the Georgian-Ossetian conflict with mixed Georgian and Ossetian families, and where the Georgian government regained control only in 2012.[55] In this area only minor works have been carried out since the 2008 war.[56] Even though the cost for sustained damage had already been calculated, locals are still waiting for compensation[57] as they live in derelict houses and face the risk of becoming homeless.[58]

    Existing conflict resolution mechanisms 

    All parties have adopted the Geneva International Discussions (GID) format to exchange information and resolve certain ad hoc issues related to the conflict.[59] However, the GID is exclusively elite driven and civil society is excluded from participation. The breakaway regions follow a scripted plot that many Georgians see as being suggested by Russia, which makes compromise on the status quo impossible. Some commentators believe that the attitude of the de facto authorities are often rigid during negotiations but more willing to be more flexible on the ground, for example when the de facto authorities allowed ethnic Georgians to visit the graves of their loved situated beyond the Georgian controlled territory.[60] Abkhaz and South Ossetian participants frequently walk out due to divergence on their position.[61] For example, Georgia asserts that Russia is violating the ceasefire agreement by not withdrawing its forces to the positions held before the war and maintains that the conflict between Russia and Georgia is ongoing. Russia on the other hand is adamant that it had met all points of the plan and that it withdrew its military forces from Georgian territory. Russia argues that their troops are legally stationed in South Ossetia and Abkhazia on the basis of international agreements between independent states. Georgia maintains that the conflict between Georgia and Russia is ongoing whilst Moscow does not identify itself as a party to the conflict and it points to two separate conflicts between Georgia and its breakaway regions.[62] Thus far the GID have failed to produce agreements on the return of internally displaced persons (IDPs) or on improving the human rights situation in those conflict regions and there has been no agreement on international security arrangements.

    Nevertheless, the GID is a deterrence to renewed conflict between Georgia and Russia where the EU’s role is somewhat weak.[63] The GID has achieved success on some non-political issues.[64] One tangible outcome is the creation of the Incident Prevention and Response Mechanism (IPRM) which is hosted by the EUMM. This platform provides a hotline to verify the accuracy of information in the aftermath of incidents.[65] It serves to establish the whereabouts of disappeared persons and usually de-escalates tension.[66] It is also a platform for mitigating future incidents where the EUMM plays a role of mediator. However, the IPRM has begun to resemble a tribunal where parties voice security concerns on establishing the whereabouts of disappeared individuals and voice their accusations to one another.[67] It does not always reduce the incidence of arbitrary arrests or killings, however it has been successful in freeing arrested individuals post factum.[68]  

    According to the former Swiss Ambassador who used to attend the Geneva Talks, Georgia needs to shape its format into a favourable direction and adopt more pragmatic approaches whilst opening additional channels of communications.[69] Some of the additional channels of communication, that were previously open, had been extremely effective. For example meetings between the de facto authorities, the Georgian Public Defender’s office and civil society representatives under the aegis of the Council of Europe had lasted for three years and generated much wanted trust and confidence between the communities. The meetings started with a year delay in 2014 as the Georgian authorities were slow in giving a green light to the initiative. During this time however, the then Public Defender was not allowed to attend Geneva talks as an observer on a pretence that the Georgian side did not want a change of status quo with the de facto authorities. Despite this an exchange of Abkhaz, South Ossetian and Georgians prisoners initiated by the former Public Defender achieved another positive outcome where a person missing for years had been located in the prison in a breakaway region. The results of these endeavours have never been made public except to the families involved and were largely based on local contacts between the Georgian and the de facto Public Defender office and civil society.[70] The IPRM also has a history of frequent walkouts, marked by the de facto Abkhaz authorities refusing to meet with the head of the EUMM following a controversy.[71] In June 2018, the IPRM meeting in Gali collapsed when the Georgian government placed an investigation into the murder of Otkhozoria at the top of its agenda and the process has remained suspended ever since.[72]

    To date civilians living near the ABLs do not have adequate information about what to do when a family member is detained, what kind of help they can get or what information to give.[73] An apparent lack of cooperation has hampered the establishment of the whereabouts of the perpetrators of a disappeared Georgian man last seen near the ABL along Gori back in 2016 and the issue has since been removed from the agenda.[74] 

    Legal and Political responses to the ‘borderisation’

    Russia has an ‘effective control’ on the territory of the breakaway regions substantiated by its financial and military presence.[75] According to the European Court of Human Rights (ECtHR)  effective control can be exercised outside its national territories where a state has an obligation to secure human rights through a control exercised either ‘directly, through its armed forces and through a subordinate local administration.’ Moreover, a state can also be held responsible even if its agent acted against its instructions or for the acts of self-proclaimed authorities which are not recognised by the international community.[76] Whilst Russia is responsible for the human rights violations committed by its agents near and around the ABLs, Georgia has a positive obligation to attempt with ‘legal and diplomatic means available’ through foreign states and international organisations to ensure human rights.[77] Finally, under international law, the de facto Abkhaz and South Ossetian authorities despite not being members of the human rights treaties have an obligation not to violate human rights.[78]

    In March 2018 the Georgian Parliament adopted a bipartisan Georgian resolution condemning human rights violations in Russian occupied Abkhazia and South Ossetia, where the Georgian government was tasked with providing a list of perpetrators. Soon afterwards the government unveiled the Otkhozoria and Tatunashvili list, a list of 33 persons of Abkhaz and South Ossetian origin who were either convicted of crimes, are under investigation or covered up alleged killings and torture in the Georgian territories beyond its control. The decree also authorised relevant Ministries to work with foreign partners to impose financial penalties and visa bans on individuals on the list.[79] However, the list was not entirely accurate and included a number of deceased persons where current personal information and their whereabouts had been mistakenly identified.[80] It was also criticised for not containing alleged Russian perpetrators.

    Although the Otkhozoria and Tatunashvili list is a non-binding resolution, it was welcomed by the European Parliament[81] and incorporated in the Council of Europe Resolution ─ Sergei Magnitsky and beyond – fighting impunity by targeted sanctions[82]that called on member states to impose sanctions, later endorsed by Estonia, Latvia, Lithuania, Estonia, the United States, Canada and the UK.[83]

    In March 2019 the Georgian Ministry of Foreign Affairs adopted a state approved strategy which covered a range of issues on occupation and highlighted the importance of peaceful resolution to the conflict, de-occupation and confidence building. It also focused on effective cooperation with international courts and strengthening the Georgian position through substantiating Russia’s illegal actions and Georgia’s peaceful efforts. This important document contains no mention of the Otkhozoria and Tatunashvili list, which as a leading instrument will evolve as other perpetrators become known and whilst authorities are instructed to submit periodic updates.[84]

    Some commentators suggest that Georgia has been somewhat cautious in joining sanctions imposed by the international community on Russia for annexation of Crimea. It also fuels the speculation that occupation has not been discussed internationally to the same extent and at the same level as the debate about the occupation of Crimea. In 2016 there was an apparent lack of public support to Ukraine over the Council of Europe Resolutions on legal remedies of human rights violation in Ukraine beyond its control and on the Political consequences of the conflict.[85] 

    Until now Georgia has done little domestically to remedy the plight of victims of the 2008 armed conflict. As a member of the Rome Statute since 2003 Georgia, according to the principle of complementarity, bears a primary responsibility to investigate and prosecute those responsible for crimes perpetrated during and aftermath of the armed conflict.[86] Yet in 2008 Georgian prosecutors launched two internal preliminary investigations into alleged crimes but the investigation stalled due to the inability to access the territory of South Ossetia amid the lack of cooperation from the Russian Federation and the de-facto authorities.[87] Georgia also articulated its fear that internal prosecutions could aggravate the occupying forces against witnesses.[88] In 2016, after five years of deliberation, the International Criminal Court (ICC) has opened an investigation into war crimes and crimes against humanity committed by both parties of the conflict in August 2008.[89] The Office of the Prosecution (OPT) decided that ‘’obstacles and delays’’ hampered investigations in both countries and that an ICC investigation was necessary after Georgia has suspended its internal investigation.[90]

    Amid calls from civil society, in 2018 Georgia finally launched inter-state complaint in the ECtHR to challenge Russia for its routine administrative practice of harassment, torture and killing of individuals attempting to cross, or living alongside, the ABLs of Abkhazia and South Ossetia.[91] The complaints claimed Russia’s responsibility for Tatunashvili’s killing and alleged that Russia failed to conduct an investigation into the unlawful arrests and murders of Davit Basharuli, Giga Otkhozoria and Archil Tatunashvili.[92] Russia also faces an individual complaint for the unlawful killings of Otkhozoria[93]and Tatunashvili.[94] In its communication, Russia denied responsibility and argued that it does not hold effective control over the territory.[95] Nevertheless, it promises to be an unprecedented case as the ECtHR must deliberate on whether Russia had effective control of Abkhazia and whether actions of the de facto Abkhaz authorities are attributable to Russia.

    Conclusion

    There are some things that Georgia can do to mitigate the effects of ‘borderisation’. The first of these is to keep the ‘borderisation’ issue and the refusal by Russia and the de facto authorities, to allow EUMM access to South Ossetia on the international agenda. Georgia should ensure these issues are grouped with the Russian intervention in Ukraine wherever possible, to highlight how Russia is intimidating its neighbours in violation of international law. On a national level, it is important that ‘borderisation’ is studied in a systematic and coordinated manner so that there is a unified state strategy served to mitigate the effects of ‘borderisation’. Georgia has to restart internal investigations if it is to meet its pledge to the ICC and fulfil the State obligation to substantiate Russia’s illegal actions over the armed conflict. It also has to open other non-conventional communications’ corridors alongside the existing formats to boost communication on human rights issues. 

    Furthermore, local municipalities should inform locals on existing dangers from the occupying forces, introduce police posts where population feels especially vulnerable, and inform locals on how to avoid arbitrary detention and what to do in case of an arrest. Finally, Georgian authorities should develop economic projects to generate income for poverty stricken communities across the ABLs and should improve an infrastructure including housing, water and irrigation issues on a legislative and practical basis.


    Photo by Jelger Groenwveld. No modifications were made. Creative commons licence, https://creativecommons.org/licenses/by/4.0/deed.en

    [1] The author would like to thank Ucha Nanuashvili, the former Public Defender and now a Director of a project at the Human Rights Centre (http://www.hridc.org/) for their advice and support in the development of this essay.

    [2] Borderisation includes the establishment of physical infrastructure to force commuters use special ‘controlled crossing points’; surveillance and patrolling by either Russian border guards or security actors from the breakaway republics to oversee compliance with the  established ‘rules’ (3) a crossing regime requiring commuters to have specific documents and only use ‘official’ crossing points. EUMM Bulletin, Issue no 7, December, 2018.

    [3] Human Rights Centre (HRIDC). Zone of Barbered Wires. Human Rights Violations along the dividing lines of Abkhazia and South Ossetia (2019).

    [4] Independent International fact- finding mission of the Conflict in Georgia. Official journal of the European Union. 3/12/2008. https://www.echr.coe.int/Documents/HUDOC_38263_08_Annexes_ENG.pdf

    [5] Ibid.

    [6] Agreement was signed with the de facto South Ossetia in 2014 and with de facto Abkhazia in 2015.The agreement covered four main priorities: establishing a coordinated foreign policy and “common defense and security space” (including a “Combined Group of Forces”); creating a common social and economic space; enhanced Abkhaz participation in Russian-led regional integration initiatives (including an Abkhaz commitment to harmonize its de facto customs regime with the Eurasian Economic Union). K. Kakachia et al. 2017. Mitigating Russia’s borderisation of Georgia: A strategy to contain and engage. Georgia: Georgian Institute of Politics.

    [7] Ibid.

    [8] Interview with the EUMM staff in June 2019.

    [9] See e.g. M. Joiev, The representative of the President of the South Ossetia de facto authorities on post conflict issue. Radio Tavisufleba. ‘’Why are fences  erected- is it a ‘state border’ or a barrier for local residents.’’, August 2019, https://www.radiotavisupleba.ge/a/რისთვის-შენდება-ღობეები—სახელმწიფო-საზღვარი-თუ-ბარიერები-მოქალაქეებისთვის-/30125635.html

    [10] Radio Tavisufleba, ‘’Why are fences  erected- is it a ‘state border’ or a barrier for local residents.’’, August 2019, https://www.radiotavisupleba.ge/a/რისთვის-შენდება-ღობეები—სახელმწიფო-საზღვარი-თუ-ბარიერები-მოქალაქეებისთვის-/30125635.html

    [11] Ibid.

    [12] K. Kakachia et al. 2017. Mitigating Russia’s borderisation of Georgia: A strategy to contain and engage. Georgia: Georgian Institute of Politics.

    [13] EUMM website, https://eumm.eu/, 2018

    [14] Ibid.

    [15] The EUMM Monitor, Issue No 7, October 2018, https://eumm.eu/data/file/6486/The_EUMM_Monitor_issue_7_ENG.pdf

    [16] As described by one of the villagers affected by the ‘borderisation’ in Human Rights Centre report. 2019

    [17] Special Report of the Public Defender of Georgia (PDO) on the Rights of Conflict Affected Population, http://www.ombudsman.ge/en/reports/specialuri-angarishebi/special-report-of-the-public-defender-of-georgia-on-the-rights-of-conflict-affected-population, 2017.

    [18] Congress of Local and Regional Authority – Georgia, Council of Europe, https://www.coe.int/en/web/congress/home/-/asset_publisher/EcOuMaGfRsUp/content/local-and-regional-democracy-in-georgia?inheritRedirect=false

    [19] Special Report of the Public Defender of Georgia on the Rights of the Conflict Affected Population. 2015. In 2015 Russian border guards barred two Georgian residents from cultivating their land.

    [20] Special Report of the Public Defender of Georgia on Human Rights of Conflict Affected Communities Human Rights Situation of Residents of Villages along the Dividing Line in Samegrelo-Zemo Svaneti. 2016. Otkozoria was refused to cross over the bridge and was later shot by an Abkhaz border guard who caught up with him on a Georgian controlled territory.

    [21] Archil Tatunashvili, native of Akhalgori Municipality in Tskhinvali Region, was arrested with local authorities accusing him of ‘genocide against South Ossetians’, ties with the Georgian security agencies, and ‘preparing new acts of sabotage on the territory of the republic shortly before the election of the President of Russia.’ He was severely tortured and killed in custody.

    [22] He was taken in custody and found dead after being missing for six months in occupied Akhalgori in 2015.

    [23] Special Report of the PDO. 2016.

    [24] Referred as Khurcha-Nabakaevi blog post at Zugdidi municipality.

    [25] Ibid.

    [26] He was forced to lay on the ground for eight hours and later to walk barefoot HRIDC.

    [27]  T. Otinashvili was snatched from the back of her garden by the Russian border guards

    [28] FIDH and HRIDC. 2017. Living on the edge: victims’ quest for accountability.The ongoing impact of the 2008 Russia-Georgia war.

    [29] Ibid.

    [30] Ibid.

    [31]Georgian Security Service. ‘Occupied Territories’. https://ssg.gov.ge/page/occupied-territories and State Security Services, Occupied territories, 2019,

    [32] Email correspondence with the staff of the Interior Minister and the Security Service in Georgia, May 2019.

    [33]The Minister of Interior of Georgia. The Minister met with the residents and staff at the occupation line near Shida Kartli Municipality. https://police.ge/en/shinagan-saqmeta-ministri-shida-qartlis-regionshi-gamkofi-khazis-mimdebare-soflebshi-adgilobriv-mosakhleobas-da-tanamshromlebs-shekhvda/12620.March 2019;

    [34]Ministry of Interior of Georgia:Police officers died after a mine explosion near the administrative border line. https://civil.ge/ka/archives/146005  March 2009. Halo trust had de-mined the territories along the ABLs in 2009-2010;

    [35]After these incidents patrolling cars are now armoured. Interview with the civil servants at the Ministry of Interior of Georgia.

    [36] HRIDC Georgia, 2018, http://hridc.org/admin/editor/uploads/files/pdf/hrcrep2018/Zone%20of%20Barbed%20Wires-Report%20-eng%202019.pdf

    [37] Interview with the representative of the Public Defender, March 2019.

    [38] Ibid.

    [39]Radio Tavisufleba, Residents of Gugutiantkari is to have a Police post. August 2019,

    [40] Ucha Nanuashvili, Head of a project at the Human Rights Centre and the former Public Defender of Georgia; FB post when commenting on events in Gugutiantkari, 19 August 2019.

    [41] Interview with the former member of the Public Defender’s office, January 2019.

    [42] Ibid.

    [43] Dato Kokoshvili, According to the Mayor of Gori there are three armed masked men in Khurvaleti, Netgazeti, March 2019, https://netgazeti.ge/news/348929/

    [44] TV Pirveli,No incident is observed in Khurvaleti Region, March 2019, https://1tv.ge/en/news/eumm-no-incident-is-observed-in-khurvaleti-village/

    [45] On 7 August the Ministry of Foreign Affairs have made a first announcement denouncing erecting illegal fences in Gugutiantkari village of Gori Municipality. On 16 August the MFA issued an announcement detailing all actions it had taken against the illegal process of borderisation.

    [46] Russian FSB guards started erecting  illegal fences on 7 August 2019, it was suspended for a few days after it was contested by the Ministry of Foreign Affairs and was renewed on 14 August

    [47] Netgazeti Batumelebi. Silence of the Prime Minister and the President on Russia advancing the occupation line, https://batumelebi.netgazeti.ge/news/223159/?fbclid=IwAR0zbVP5QMSD6BixhFJDAbNH6J2DQ0TybpUmn5psVHwbAbdp3FlSOPBmuCY. 16 August 2019

    [48] The Report on Human Rights and Protection of Freedom in Georgia, 2018, http://www.ombudsman.ge/res/docs/2019042620571319466.pdf

    [49] 2013-2018 Report of the Interim Government Commission on the necessities of the population living along the occupation line affected by the conflict.

    [50] HRIDC. 2019. In 2017 a local resident living alongside the ABL in Abkhazia said that her husband was arrested when he was collecting woods as electricity is expensive.

    [51] Ibid.

    [52] Ibid.

    [53] Report of the Interim State Commission. 2013-2018.

    [54] FIDH and HRIDC. 2017.

    [55] Ibid.

    [56] Ibid.

    [57] PDO. 2016. As a response to respective recommendations by the PDO, the Ministry of Infrastructure and Regional Development and the State Ministry of Reconciliation and State Equality notified the Office of the Public Defender that they have already started seeking financial assistance from potential donors. This particularly affects individuals residing in Zardiaantkari, Gori municipality and village of Khurcha.

    [58] DFID-HRIDC.

    [59] The Geneva International Discussions were launched in Geneva in October 2008 to tackle the consequences of the 2008 Georgia-Russia war and Russia’s subsequent recognition of the independence of Abkhazia and South Ossetia.

    [60] Interview with the EUMM staff. June 2019.

    [61] Ibid.

    [62] Woscap. 2017.

    [63] Ibid.

    [64]  Mutual cooperation helped to resolve bug problems in Abkhazia and facilitated exchange of archives between Georgia and the de fact Abkhaz authorities.

    [65] The  Hotline operates 24/7, 365 days a year, supporting timely communication on different conflict related issues, such as detentions, medical crossings, access to agricultural land, installation of fences, barbed wire and ‘border’ signs along the Administrative Boundary Lines with Abkhazia and South Ossetia . IPRM meetings are co-facilitated by OSCE/UN and EUMM and are held in Ergneti and Gali, near the ABL.

    [66] Ibid.

    [67] Radio Free Liberty, A long meeting in Ergneti ended with accusations, May 2019,

    [68] Radio Free Liberty, Meetings in Ergneti-  a tribune for protests, June 2019,

    [69]  Geneva Process and Peaceful transformation to conflict, New Political reality, 2013, https://ge.boell.org/en/2013/01/24/geneva-process-and-peaceful-transformation-conflicts-new-political-reality

    [70] Email correspondence with the former Public Defender of Georgia, Ucha Nanuashvili. August 2019.

    [71] Ibid.

    [72] Ibid.

    [73] Ibid.

    [74] Ibid.

    [75] The circumstances in which a State may be held responsible for acts in breach of the Convention occurring outside its territory were addressed and defined in the Court’s judgments such as Loizidou v Turkey, Cyprus v Turkey and  Bankovic v Belgium. It maintained that state responsibility becomes relevant where a state exercises effective overall control of a territory. Its responsibility cannot be confined to the acts of its own soldiers or officials – whether or not those acts are authorised by the high authorities of the state – “but must also be engaged by virtue of the acts of the local administration which survives by virtue of [the] military and other support.”

    [76] Ilascu v. Moldova and Russia (App.48787/99), Judgment of 8 July 2004(2005) 40 EHRR 1030. paras 312-319.

    [77] Ibid. para 331.

    [78] General Comment No. 26: General Comment on Issues Relating to the Continuity of Obligations to the International Covenant on Civil and Political Rights, U.N. GAOR, Human Rights Comm., 61st Sess., addendum P 4, U.N. Doc. CCPR/C/21/Rev.1/Add.8/Rev.1 (Dec. 8, 1997).

    [79] When discussing atrocities committed in the Bosnian war, a member of the Human Rights Committee argued that the Bosnian Serb authority that had control of a territory was bound by human rights law. This finding is supported by general Human Rights Committee jurisprudence where human rights treaties are so-called “localised treaties.” Their protection evolves with the territory of the state party and continues to protect the people living therein, “notwithstanding change in Government of the State party, including dismemberment in more than one State or State succession.” Arno Hessbruegge, Human Rights Violations arising from the conduct of non-state actors.Jan Arno Hessbruegge. Buffalo. Hum. Rts. L. Rev. 21 2005.

    [80] American Voice, Why did dead souls end up in Tatunashvili  Otkhozoria list?,June 2018,https://www.amerikiskhma.com/a/georgia-to-otkhozoria-tatunashvili-blacklist-33-persons-for-grave-human-rigtts-violations-in-occupied-territories/4457163.html

    [81] European Parliament, MEPs call for EU Magnitsky act to impose sanctions on human rights abusers, March 2019, http://www.europarl.europa.eu/news/en/press-room/20190307IPR30748/meps-call-for-eu-magnitsky-act-to-impose-sanctions-on-human-rights-abusers

    [82] PACE Resolution 2252 (2019) Sergey Magnitsy and beyond- fighting impunity by targeted sanctions. http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=25352&lang=en

    [83] PACE Resolution 2252 (20129) Several member and observer States (including Estonia, Latvia, Lithuania, the United Kingdom, Canada and the United States) have adopted legislative and other instruments to enable their governments to impose targeted sanctions on perpetrators and beneficiaries of serious human rights violations.

    [84]  The Minister of Foreign Affairs responded to the criticism during the discussion off the action plan at the Georgian parliament that Otkhozoria-Tatunashvili list is made part of the Action plan which is an internal document. Q&A between Zakaliani and Bokeria at the Parliament. https://www.facebook.com/news.on.ge/videos/260733931471851/ March 2019.

    [85] See e.g. Legal remedies for human rights violations on the Ukrainian territories outside the control of the Ukrainian authorities (Doc 14139) and Political consequences of the conflict in Ukraine (DOc 14130) – both adopted in 2016.

    [86] Rome statute of the International Criminal Court. Article 1https://www.icc-cpi.int//Documents/RS-Eng.pdf, see also ‘On 27 January 2016, Pre-Trial Chamber I granted the Prosecutor’s request to open an investigation proprio motu in the situation in Georgia, in relation to crimes against humanity and war crimes within the jurisdiction of the Court in the context of an international armed conflict between 1 July and 10 October 2008.https://www.icc-cpi.int/georgia/

    [87] The Office of the Chief Prosecutor of Georgia (OCPG) in the course of its inquiry is reported to have interviewed over 7000 witnesses, carried out on-site investigations in over 30 affected areas as well as conducted various forensic expertise. FIDH and HRIDC. 2017.

    [88] There is a difference between the Georgian (original letter) and an English translation. The Georgian authorities in their official letter said that they have temporarily suspended the investigation. Interview with the head of Article 42, Natia katsitadze, May 2019.

    [89] On 27 January 2016, Pre-Trial Chamber I of the International Criminal Court (ICC) authorised Prosecutor Fatou Bensouda to open an investigation into the 2008 conflict in Georgia, following an application made by the Office of the Prosecutor (OTP) in October 2015.

    [90] Human Rights Georgia, Ten years after the August war. Victims of the situation in Georgia, August 2019, http://humanrights.ge/admin/editor/uploads/pdf/angarishebi/hridc/eng-10%20years%20after%20august%20war..pdf

    [91] NGOs demand lodging of an inter-state application before the ECtHR over the case of Tatunashvili, February 2018,

    [92] ECtHR, Press release: New inter-state application brought by Georgia against Russia, August 2018,

    [93] ECtHR, Matkava v Russia. (13255/07) Communicated, January 2018, https://hudoc.echr.coe.int/eng#%22itemid%22:[%22001-189019%22]

    [94] Agenda.Ge., Georgia drafts lawsuit for Tatunashvili’s case in European Court, May 2019, https://agenda.ge/en/news/2018/988

    [95] In its communicated case, the ECtHR requested Russia to provide answers on unlawful killing of Otkhozoria and on effective investigation into his killing and demanded to submit case file related to the investigation.

    Footnotes
      Related Articles

      Nagorno-Karabakh: The contrast between dream and reality may result in a wind of change

      Article by The Norwegian Helsinki Committee

      Nagorno-Karabakh: The contrast between dream and reality may result in a wind of change

      Nagorno-Karabakh is a territory of contrasts. There is an obvious pride among the population of the region based on its rich history, nature, green mountains and natural resources, including gold. There is a widespread perception amongst the local population that the recognition of statehood is a possibility in the future but an understanding, that recognition is likely to take a long time – tens of years or even centuries.

      Meanwhile, owing to its unrecognised status, economic growth is hampered by limited investments and trade. And the military and political conflict with Azerbaijan over the status of Nagorno-Karabakh and the surrounding seven territories of Azerbaijan occupied by Armenian forces remains unsolved, resulting in a militarised society.

      In this essay, we attempt to ascertain what is going on in Nagorno-Karabakh, how people live and how they understand their current situation and their future. Based on input from various sources, we sense that change is in the air.

      Dignity in non-recognition

      Both presidential and parliamentary elections in Nagorno-Karabakh are scheduled for the spring 2020. With a population of only around 146,000,[1] there are at least 18 registered political parties.[2] “The number seems impressive, but none of them actually represents real change”, a local activist told us. Activists along with ordinary people have been protesting in recent months, demanding a change of government and solutions to economic hardship. “The economy is growing, but not to the benefit of the people”, another activist explained, “Salaries are stagnant, and there is no investment in education or health care”.

      In further explanations of the protests, we were told of corruption and clan-based privatisation, with construction businesses being used as vehicles for money-laundering and the lack of transparency in the gold mining industry.

      The so-called ‘Velvet revolution’ in Armenia in 2018, has become an inspiring example for the civically active part of the population. The lack of recognition of statehood has not hindered protests or the putting forward of demands for change. But where will these demands bring the de facto state? Have any of the sides – the authorities or the protesters – solutions for the easy-to-see problems?

      In dealing with the problems, there are three factors that seem to especially influence political processes:

      1. The Soviet heritage;
      2. The armed conflict with the Government of Azerbaijan and the resulting militarisation of society;
      3. The ‘Velvet revolution’ and transformational changes in Armenia.

      The Soviet heritage

      Ways of thinking and acting inherited from Soviet timesstill prevail in many countries in the region and in the de facto states. The de facto leadership of Nagorno-Karabakh declared its independence from Azerbaijan in 1991 leading to conflict, internal displacement of large numbers of people and since 1994 an uneasy ceasefire.[3] Since that time there have been several attempts at system change in post-Soviet states, including the ‘colour’ revolutions in Ukraine, Georgia, Kyrgyzstan and recently, in Armenia, though progress towards rule of law, an independent judiciary and media, tackling corruption and democratic values has been uneven.

      Even though the breakaway Nagorno-Karabakh region is at the centre of the conflict between Armenia and Azerbaijan, its situation mirrors developments elsewhere in the wider region as the de facto authorities are balancing between authoritarian rule and demands from society for greater freedoms and economic reforms. There are elections, but without the people’s voice; and there are parliaments, courts and state ministries, but under an overwhelming bureaucratic mist. The institutions are not able to function properly and transparently. The central authorities remain willing to order law-enforcement and military units to use violence against its own population.

      These effects of the Soviet heritage are an important factor in Nagorno-Karabakh as well. However, the unrecognised status of the region makes institutions even weaker than in recognised states in the wider neighbourhood. From the populations’ perspective there might be, somewhat paradoxically, both positive and negative consequences of this institutional weakness.

      Among the positive factors that can be mentioned is more independent thinking about alternatives to the current ways of running the territory. This is especially true for a new generation of people, who have not experienced Soviet-style authoritarian rule and the internet. Social media opens new opportunities for participation and discussions on future developments.

      At the same time, the lack of ideology and a clear vision for where the region should be heading ─ after almost 30 years of separation from the rest of the world, and resulting economic stagnation ─ leads to the gap between dreams and reality to grow wider. People are waiting for recognition, which they think will come one day, as they are confident in the de facto state’s economic and military viability. There are even those who dream of the forming of a Greater-Armenia of the 21st Century, which will include regions of Turkey, Iran and Nagorno-Karabakh.

      The role of Russia, where according to various sources 2.5 to 3 million Armenians work and live, is not clear for the inhabitants, especially not for the younger generations.[4] Some perceive Russia as a multinational superpower confronting negative influences from the USA and President Donald Trump. Others realise that that Russia is not quite a democracy, and that it serves its own narrow interests by selling weapons both to Armenia and Azerbaijan, fuelling further militarisation of the region.

      Militarisation

      Since the 1990s, the society of Nagorno-Karabakh has been heavily influenced by armed conflict, with regular skirmishes and sniper fire along the line of contact. In April 2016, there was a four-day war, which seems to have left a patriotic feeling among the population. Although the conflict saw the Nagorno-Karabakh or Armenian forces for the first time lose a small amount of, territory to the Azerbaijani Army, it has added to a renewed sense of unity and nationalism, mobilising readiness at all times to defend the territory against an increasingly strong opponent. People in military uniform, military exercises and repeated instances of gunfire between Azerbaijan and Nagorno-Karabakh soldiers, which steadily expand the number of wounded and killed soldiers, remains a visible part of life. According to Caucasian Knot, a news website covering the whole Caucasian region, the number of killed and wounded since 2016 amounts to around 80, including both combatants and a few civilians from both sides.[5]

      Most of the male population over 18 years are bound to military service and remain ready to become active combatants if needed. “We do not want war”, our male interlocutors repeatedly confessed, “But if there is a war, our army will win”.

      There are around 30,000 internally displaced persons in Nagorno-Karabakh.[6] 30 years after the conflict started, many of them still do not have a proper place to live. They have not received any compensation for their losses.

      “What happens in Nagorno-Karabakh is a humanitarian catastrophe”, a local journalist underlined. “Politicians do not care about people’s lives and even less about their opinions. Those, who had opportunity and resources to travel, left the region”.

      The displaced people have been supported by a few Armenian non-governmental organisations (NGOs). Some international missionary and humanitarian organisations have also helped. Otherwise, most international organisations are wary of operating in Nagorno-Karabakh and other de facto states. The overall policy of international donors is not to fund independent civil society organisations operating in such territories. This situation hinders progress on human rights. Lack of international support and contacts also makes the work of independent journalists, activists and lawyers more difficult. They lack the strength only cross-border, regional and international cooperation and solidarity between colleagues can give.

      Peace and a final settlement of the conflict between Armenia and Azerbaijan seems not to be possible in the near future. Among the population in Nagorno-Karabakh we sensed that there is both a constant expectation of the continuation of conflict and war, and an understanding that someday the peace must come.

      A village called Talish, placed in the border zone with Azerbaijan, experienced heavy destruction during the four-day war in 2016 and still lies in ruins. All 600 people living in the village left, and so far, only two families have returned. One of them recently celebrated a wedding with 250 guests in Talish’ old church. The local authorities have built or renovated around 50 houses.

      It is neither the absence of a proper road to the village, nor the lack of access to water or electricity that seems to prevent return. It is rather the continued risk of gunfire and the lack of prospects of conflict resolution that keeps people away. In their experience, while time is passing, the conflict may escalate or diminish, but will not go away. The air is filled with rumours, fake news and myths.

      From Armenia with hope

      When a society for decades lives with conflict and the mobilisation for war, national security often becomes the top priority and individual human rights a secondary importance. People get used to enduring hardships and become tolerant of violence. They adapt to a worsening social and political situation, malfunctioning institutions and widespread poverty.

      However, we sense that there is a wind of change now blowing from Armenia to Nagorno-Karabakh, where Armenians constitute a vast majority.

      The 2018 ‘Velvet revolution’ in Armenia inspired local activists, civil society groups, journalists and many ordinary people, who have no choice but to stay and live in the territory. The society is indeed changing according to local activists. They claim that fear is not a strong factor anymore and that the armed forces would hardly attack peaceful protests, which have increased in numbers since the regime change in Armenia. Social media platforms are important providers of alternative information and places of discussions. Local activists and journalists are willing to refer to international norms of rule of law, freedom of expression, and bring cases to the Ombudsmen office and even international mechanisms when there is an opportunity.

      If one forgets for a moment that the region is a de facto state, one could hardly find any difference between the society in Nagorno-Karabakh and other societies in transition. There are common features of fatigue and discontents with power elites, which are stuck in internal bargaining struggles for power, assets and corruption. They seem unable to solve social problems or fulfil basic needs of the population. Lack of real opposition with a vision and a concrete reform agenda is also a common issue.

      However, the story of Nikol Pashinyan, the reforming Prime Minister of Armenia, who had a past as a prominent journalist and opposition politician, pulls out a new debate: could something similar happen in Nagorno-Karabakh? Some mention Samuel Babayan, a former Secretary of Defence, who after staying in power for 10 years joined the opposition. Would he be able to gain people’s trust and pursue a reform agenda?

      Many locals assume that the revolution in Armenia was a result of the four-day war in April 2016, and popular dissatisfaction with failures of a corrupt and inefficient military and state apparatus. Pashinyan has so far been rather careful in talking about the situation in Nagorno-Karabakh. He has, however, talked about the need for investigations into different aspects of the war, which represented the worst fighting between Armenian and Azerbaijani forces over Nagorno-Karabakh since a ceasefire was signed in 1994. In June 2019, the Armenian Parliament established a commission to investigate the circumstances of the war.[7]

      Need for a people-centred approach

      The political situation is not easy, given its duality. You may be pro-reform and –democracy internally, but at the same time you have to present a plausible strategy for sustaining a positive relationship with Russia as the security guarantor of Armenia and ─ in the long run ─ for negotiations with Azerbaijan. This duality creates a vulnerability, which neither Armenia nor Nagorno-Karabakh will be able to solve without more decisive involvement from the international community.

      There is a need for careful steps, both to address internal human rights problems – such as expanding freedoms and fulfilling economic and social rights of an impoverished population – as well as moving ahead with peace talks.

      An important part of such a shift in approach would be to place the situation of the people living there in focus. The fact that there has been no solution to the housing problems of about 30,000 internally displaced people living in Nagorno-Karabakh is telling of the need to re-orient focus.[8] Whether this situation is mainly due to inaction by the international society, as claimed by Nagorno-Karabakh Ombudsman Artak Beglaryan, with local authorities doing what they can, might be debatable.[9] Improving the situation of the still very large number of internally displaced people in Azerbaijan should of course also be part of such a people-centred approach. Both national authorities and the international society should step up efforts to remedy their situation.[10]

      It is beyond doubt that there is a need for more engagement from international organisations to improve human rights and living standards in the region. Such a shift in approach will, we believe, in the longer run also make it easier to solve the conflicts.


      Photo by Adam Jones, Tank Monument – Near Mayraberd (Askerani) – Nagorno-Karabakh, June 2015, https://www.flickr.com/photos/adam_jones/18582153944. No modifications to photo. Creative commons license https://creativecommons.org/licenses/by-sa/2.0/

      [1] The last official population count in Nagorno-Karabakh was conducted in 2016. The number was 146 260 (https://www.kavkaz-uzel.eu/articles/280021/). However, this number might vary from what the Azerbaijan authorities have.

      [2] The number of registered parties have been growing recently, see Caucasian Knot, Non-parliamentary opposition of Nagorno-Karabakh joins presidential campaign, https://www.kavkaz-uzel.eu/articles/333391/

      [3] According to the Internal Displacement Monitoring Centre (IDMC), the number of IDPs in Azerbaijan as of 31 December 2018, was 344 000. In addition, 301 000 IDPs had made partial progress towards a durable solution, http://www.internal-displacement.org/countries/azerbaijan According to Nagorno-Karabakh sources, there are more than 30 000 IDPs in Nagorno-Karabakh. https://www.osce.org/odihr/344716

      [4] Russia-Armenia Info, Armenians in Russia, http://www.russia-armenia.info/node/16443

      [5] Caucasian Knot, Nagorno-Karabakh after the truce: A two-year war, April 2018, https://www.eng.kavkaz-uzel.eu/articles/42824/

      [6] As noted in footnote 3 there are a larger number of Azerbaijani IDPs from Nagorno-Karabakh and the surrounding territories in Azerbaijan.

      [7] Ani Mejlumian, Armenia beings probe of 2016 war, June 2019, Eurasianet, https://eurasianet.org/armenia-begins-probe-of-2016-war

      [8] Caucasian Knot, Refugees in Nagorno-Karabakh talked about housing problem (in Russian only), June 2019, https://www.kavkaz-uzel.eu/articles/336960/

      [9] Ibid.

      [10] According to a recent report, “official figures shows that more than 313 thousands IDPs still live in unfit buildings in emergency state in Baku, Sumgait, Ganja and other cities and districts”. Human Rights Club, The Human Rights Situation of Internally Displaced People in Azerbaijan, November 2018, p. 10, available at: https://www.humanrightsclub.net/en/news/2019/human-rights-situation-of-internally-displaced-persons-in-azerbaijan/

      Footnotes
        Related Articles

        On Crimea

        Article by Anton Nemlyuk

        On Crimea

        At the end of March 2019, 20 people were detained in Crimea on one day, with 23 people arrested in total.[1] These were Crimean Muslims accused of participating in the Islamic party Hizb ut-Tahrir, recognised as a terrorist group in Russia since 2003. The next dayin the Russian town of Rostov three more Crimean Muslims, who were not found during searches the day before, were detained on the same charge. A couple of weeks later, Raim Ayvazov was detained at the border. He was about to leave Crimea, going to the Ukrainian city of Kherson in order to get documents. The Federal Security Service officers took him to a field near the border, put him on his knees and began to shoot a gun close to his head, forcing him to confess and to incriminate the other detainees. He agreed of course, although he later recanted and told the court about the imitation of the shooting, which he was subjected to by the Russian secret services. Before telling what had happened to him in public, Raim Aivazov, though very afraid, was able to transmit the information to his lawyer Maria Eismont. She, in turn, handed the story over to Crimean human rights activists, who told it to the journalists including me, the author of this essay. This scheme, a cooperation between the lawyer, the human rights activist and the journalist, is the most effective one from the point of view of both journalism and human rights protection. As experience shows it is most effective from the point of view of protection of persons prosecuted unlawfully for political or other reasons. Before Eismont, Ayvazov had a lawyer appointed by the state, who intimidated him and persuaded to ‘admit’ his guilt. If Eismont had not listened to him, then the information about what he had been subjected to would not have appeared at all. The remand hearing concerning Aivazov, like almost all political proceedings in Crimea, was held behind closed doors, and it was impossible for journalists, observers, and even relatives to get in the court room. If the activists whom the lawyer had told about Ayvazov’s ‘shooting’, had not contacted the journalists, this information would have remained only on social networks and would not have spread beyond them, causing a reaction from the supervisory authorities.

        My journalistic activities in Crimea began in the summer of 2016. Since then I have spent almost all of my time on the peninsula: one month on a business trip, the next on various trips and working with material, then returning back to Crimea again, covering almost all political trials that are held there of Crimean Tatar and Ukrainian activists. This experience forms the basis of the ideas in this essay about the most effective interaction with lawyers and human rights activists in Crimea.

        In the spring of 2015, when mass detentions of Crimean Tatars and politically motivated abductions of activists became a reality brought by the Russian authorities, the human rights organisation ‘Crimean Solidarity’ was formed on the peninsula and still operates successfully there. It united lawyers, relatives of political prisoners and those activists who engaged in providing legal assistance to prisoners, helping families and children left without fathers because of an arrest or an abduction. Activists carry out the information gathering work as well – they cover court hearings, searches, detentions, and generally those activities conducted by Russian security forces that are related to violation of human rights on the peninsula. Several representatives of the Ukrainian Cultural Center, the remnants of Ukrainian society in Crimea, who are subjected to constant persecution, take part in the monthly meetings of Solidarity, but all the activists are Crimean Tatars, Muslims. They have been persecuted since the beginning of 2017, not only for their political disloyalty to the Russian authorities (as was the case of ‘February 26’, when participants of the February 26 rally, 2014, were persecuted; they had demanded the local parliament deputies to retain Crimea as a part of Ukraine), and not only for disobeying the Crimean Muftiat, which is the Muslim governing body that is fully controlled by the Russian security services, but, above all, for their civil and human rights activities. ‘Solidarity’ rather quickly formed a structure in which there are groups of ‘streamers,’ that is, ‘civil journalists’ who cover the persecution by Russian authorities in social networks; a group of ‘civil defense counsels’, lawyers who had acted as defense counsels in court cases with non-criminal charges, for example, because of protest pickets; and a separate group was engaged in providing everything the prisoners needed. This final group helped families and, above all, children, many of whom needed psychological support after having experienced a search, an arrest at home and the trials of their fathers. 18 people out of the 24 detainees, accused of participating in Hizb ut-Tahrir mentioned at the beginning of this essay, are activists of ‘Crimean Solidarity’.

        Generally speaking, ‘Crimean Solidarity’ took over the functions of a human rights community on the peninsula. Representatives of international human rights organisations can not work legally on the peninsula because Russia has made their presence in Crimea dependent on the actual recognition of the annexation. “Please come to work in Crimea, if you want to,” Russia says, for example, to the Organisation for Security and Co-operation in Europe (OSCE) Observer Mission, which has a mandate to monitor Crimea, but which is based in Odessa. “However you must get a permission from us, because this is our territory.”[2] It is obvious that human rights organisations cannot do that. However, in 2015, the Turkish human rights mission visited Crimea and published a report after the visit, where it severely criticised the actions of the Russian authorities and security forces, specifically relating to human rights violations including politically motivated prosecutions, abductions of activists, infringement of the Crimean Tatar language in education and so on.[3] Over the past year, two joint human rights teams were able to work in Crimea. They met with the families of political prisoners and activists of ‘Crimean Solidarity’, but they entered the peninsula while preserving their secrecy, which of course limited their activities. Likewise, Ukrainian human rights activists rarely work in Crimea, entering under the guise of tourists. But in this case, they are often surveilled by Federal Security Service (FSB) officers, that keep them under observation and wiretap their phones. The last time an employee of a Ukrainian human rights organisation (the author omits the names of the organisation and the employee for security purposes) had worked in Crimea and was traveling back to mainland Ukraine, an FSB Border Guard officer warned her directly: “Today we release you, but if you come again, you will get problems due to unauthorised activities of a foreign organisation.”[4] All Ukrainian human rights organisations are forced to follow what is happening in Crimea from Kyiv, receiving information from the activists from ‘Crimean Solidarity’, a small number of journalists and local lawyers. In turn, they can only covertly help activists and lawyers, constantly endangering those whom they are helping. Russia has developed a large law-enforcement practice of persecution for contacts with ‘undesirable organisations’ and ‘foreign agents’.

        At the same time, Russian human rights organisations are not very eager to work in Crimea. A reaction from Ukrainian colleagues almost always follows activities carried out by Russian human rights defenders on the peninsula, reminding them that Crimea is part of Ukraine, even if annexed by Russia at present, and that Russian organisations should appear there only with the sanction of Ukraine. There are not many Russian human rights activists, including those who believe the same, who are willing to engage in a political scandal. A few Russian human rights activists, who systematically work in Crimea, need in addition to get a work permit from the Ukrainian authorities each time they go to the peninsula. They must submit an application to the Foreign Ministry, carry the documentation package personally to the migration service, come personally and get a special permit, and then travel exclusively through Ukrainian border posts on the isthmus that connects Crimea with the Kherson region. Usually, in order to obtain such a permit, it is necessary to wait between three days to a week. Despite all attempts to facilitate the procedure, for example, to be able to get permission remotely, without coming to Kyiv personally, the situation has not changed for the past five years. The direct arrival of Russian human rights defenders by plane from Moscow or across a bridge connecting Crimea and Russia, most often does not cause official Kyiv to react, even though it violates Ukrainian border legislation. There is however no guarantee that Ukraine will not remember these violations in the future. Few are willing to risk relationships with Ukrainian colleagues and authorities. Despite constant evidence of torture used by FSB officers, the ‘Committee against Torture’, for example, headed by Igor Kalyapin, does not work in Crimea. The same Russian human rights activists who have been working here since 2014 are in fact, still working on the peninsula; no new ones have appeared on the scene during the last five years.

        The community of lawyers in Crimea remains in a similar situation. Ukrainian lawyers cannot work on the peninsula at all, and they can only provide support to the Crimeans who complain to the European Court of Human Rights (ECHR), or in Ukraine itself, if required. They cannot defend clients in Crimean or Russian courts. Their interaction with Ukrainian law enforcement agencies, which initiate cases against Russian secret service officers and law enforcement agencies in Crimea, turns them into enemies of the Russian authorities on the peninsula. In 2016, Russian border guards barred Ukrainian lawyer Yevgenia Zakraska from entering Crimea until the end of 2020.

        Inside Crimea there has developed a community of lawyers working on political judicial processes primarily relating to Crimean Tatar activists, the most heavily prosecuted group. These lawyers are either Ukrainian, who lived in Crimea in 2014 and have undergone a re-certification, or those who have received that status during the past five years. From the point of view of their work, they are considered in the same way as those Russian lawyers who come to Crimea from Russia. Nikolay Polozov, who first defended Nadezhda Savchenko, and then the Mejlis deputy chairman (the Crimean Tatar People´s self-government body, forbidden by Russia) Akhtem Chiygoz in the ‘February 26’ case, is one example.

        Since 2014, the legal association ‘Agora’ has been working in political judicial processes in Crimea. Agora is probably the most well-known Russian association, with the biggest counsel stories. Dmitry Dinze, who was then part of Agora, defended the Ukrainian director Oleg Sentsov, while Svetlana Sidorkina defended the anarchist Alexander Kolchenko. However, the lawyers of Agora did not live in Crimea until 2016. The lawyer Alexey Ladin moved to the peninsula later, he joined Agora and became their representative in Crimea. The activities of Agora on the peninsula are also important, because the association pays great attention to information support in relation to their affairs and to cooperation with journalists. However, Russian lawyers, as well as human rights activists, have faced a reaction from Ukraine due to the fact that they had entered Ukrainian Crimea.

        As Pavel Chikov, head of Agora explained it was a little unexpected: you think you are trying to bring good things to people, and then you get criticised by your colleagues. The logic is clear: by participating in the protection of these people, you legitimise annexation, but we acted out of the considerations that there is a person, he has problems, respectively, he needs help. Everything else is secondary.[5]

        In the spring of 2016, seven journalists in Crimea were searched on the same day. They were all witnesses in the case of their colleague Nikolay Semyona, who was accused by Russian authorities of separatism for an article published on Radio Free Europe/Radio Liberty, where he spoke positively about the energy blockade of Crimea.[6] The blockade had been organised by Ukrainian nationalists and Crimean Tatars in the autumn of 2015. Mass searches forced some journalists to leave Crimea and follow their colleagues, who had mostly left earlier, while others abandoned journalism. According to lawyer Alexander Popkov “with the help of the Semyona case, the Russian authorities crushed the network of independent journalists on the peninsula”.[7] Even earlier, the editorial offices of the Crimean Tatar TV channel ATR, the Radio Free Europe/Radio Liberty project ‘Crimea Realia’, the Black Sea TV Company and other independent journalistic groups were forced to flee Crimea. After that, independent correspondents in Crimea worked unsystematically, except for the time when the journalist from the Russian ‘Novaya Gazeta’, Ivan Zhilin, lived in Sevastopol. In order to get to Crimea without violating Ukrainian border legislation, foreign journalists had to go through the same procedure as human rights activists. However they had to submit an application to the Ukrainian Ministry of Information and Press and not to the Foreign Ministry. This procedure takes up to a week, so the journalist first has to spend that time in Ukraine, then he must go across the isthmus, being subjected to interrogations and additional verifications, first by Ukrainian secret services, then by the Russian ones. When he leaves the peninsula, everything happens in the reverse order, but the interrogation by the FSB officers is more often quite harsh, especially if the journalist has met with activists, lawyers and families of political prisoners. FSB officers check the correspondents´ equipment and phones, that they download information from. They take fingerprints and interrogate about all of their contacts on the peninsula. These obvious risks, as well as the fact that Crimea has gradually, over the past five years, left the media agenda, lead to the fact that foreign journalists travel to the peninsula less and less frequently. From a Ukrainian perspective Russian independent journalists do not from other foreign ones, but in order to not to get involved in the procedure of obtaining permits and passing the administrative border, they travel from Russia directly, hiding under a pseudonym. There just are no independent journalists among the Crimean media, that are controlled by Russian authorities and secret services.

        The challenges that human rights defenders, lawyers and journalists in Crimea are facing, also have determined the nature of their cooperation. First-hand information about the events taking place is  most often obtained by lawyers from their clients and their clients´ families. They are called upon for help during searches and detentions. They transmit this information to the activists of ‘Crimean Solidarity’ and human rights activists, who disseminate it on social networks and transmit it to professional journalists. And it does not really matter where these journalists are located – in Crimea, on mainland Ukraine or in Russia. Much more important is the personal confidence in the media and journalists, with whom lawyers and human rights activists work. Such an arrangement gives rise to problems for all of its participants.

        A journalist, that receives information from activists or human rights defenders, cannot actually check it immediately if he is not in Crimea. He is forced to rely on the information as trustworthy and he can only verify it later, either through judicial documents or on the spot through contact with the prisoners´ relatives. At the same time, it is clear that human rights activists and, even more so, lawyers, have their own goals, namely to protect the persecuted person. Based on that, a lawyer may not share all information, activists may not want to disseminate facts that can harm a person. A journalist has a goal to inform the public, but it is impossible to do so if providing information only partially. If the information is socially significant, it has to be complete. In 2018, one of the Crimean Tatars (the name is kept out for security purposes) was arrested by Russian secret services, accused of participation in the Crimean Tatar volunteer troop named after Noman Chelebedzhikhan. That troop operates in the area of ​​the administrative border with Crimea, and Russia qualifies participation in it as participation in an illegal armed formation. Already in custody he managed to get in touch with activists, who then found me, so that I could cover his case and his trial. I rechecked his story with the leader of the troop, who confirmed that the Crimean Tatar really had wanted to join the troop, but was not accepted because of a criminal prosecution for robbery, from which he had to flee from Crimea. When the text was ready, the lawyer and his client suddenly changed their position, stating in court that he had never wanted to join the troop and had not even left the peninsula. And it was precisely this position that they had wanted to see reflected in the reporting. It was clear that the publication of the article could harm the defense strategy of the Crimean Tatar in court, but it was also impossible to publish deliberately false information. This apparent contradiction between the work of a journalist and a lawyer or human rights activist occurs quite often while working on issues of human rights violations and political persecution.

        The Crimean Tatar Eden Bekirov is now kept in a detention facility in Simferopol, accused of illegal handling of explosives and ammunition. He has one leg and a first-degree disability, as well as a severe form of diabetes. His health has been deteriorating since he was arrested in the December 2018, but each time a remand hearing concerning the extension of his custody for the investigation period, is approaching, the defense counsel informs that he is dying in custody. This fact is impossible to check. Both human rights activists, most journalists and Ukrainian media use it very actively, referring to the defense counsel, but the reliability of this information is however not confirmed by anything else than the lawyer´s words. For him it is of course beneficial for the defense of Bekirov.

        Nevertheless, an effective interaction between lawyers, human rights defenders, activists and journalists has developed in Crimea. After many years of working in Crimea, and in fact, no new journalists or human rights activists have appeared on the scene during the last five years, all participants of this system have developed confidence in each other. The main question that Russian secret services ask me when I cross the administrative border is: “Who provided you with information? Where did you get the documents for your article? Whom of the lawyers were you in contact with?” It is clear that the effectiveness of our interaction with lawyers depends on our silence in response to that question. The objectivity and completeness of the articles depends on how effective that interaction is. This will, in turn, affect how effectively the human rights defenders will be able to use those texts for advocacy. All these interactions are based on trust – there are risks for any of the participants in this scheme. A lawyer risks when he delivers documents and information from a classified case to journalists and human rights activists. A journalist risks responsibility for disclosing this information if he refuses to name his source. In addition he also risks his own authority because he often cannot verify the information. The human rights activist can neither check this information and risks using materials from a journalist for advocacy purposes and, for example, for writing monitoring reports. It is quite possible that this effective scheme would not have developed in Crimea if the brunt of political persecution had not fallen on the mono-ethnic community of the Crimean Tatars. They have both the experience from the national movement following the deportation in 1944, and the religious solidarity of an Islamic community. Lawyers working on political affairs, and human rights activists from ‘Crimean Solidarity’ appeared first among the Crimean Tatars. They were only subsequently joined by professional journalists.

        Author’s recommendations:

        • To create an informal association of journalists, who focus on religious and political persecutions, lawyers and human rights defenders on the basis of a Russian human rights organisation (for example, ‘Memorial’) or an international organisation. Such an association would be able to provide a base of experts and lawyers for certain cases. This will, in turn, provide lawyers and human rights defenders with an opportunity to address journalists directly. It will also give them an idea of whom they can trust in relation to cooperation.
        • To seek from Ukraine a simplification of the entry procedure to Crimea for journalists, human rights activists and Russian lawyers. Ideally, to be able to apply for and receive permission remotely, as well as to be able to enter Crimea not through mainland Ukraine, without violating the border legislation.

        Author’s bio: Anton Nemlyuk is a Russian historian and journalist. He graduated from Saratov State University (Russia). Until 2012 he worked as a teacher, and thereafter, as a journalist. Since 2016 Anton has been working in Crimea, covering human rights violations, also as a court reporter.

        [1] Human Rights Watch,  Escalating Pressure on Crimean Tatars, April 2019, https://www.hrw.org/news/2019/04/02/ukraine-escalating-pressure-crimean-tatars

        [2] Victor Lyashchenko, In Crimea, they said that the UN mission could come, but constantly refused, RIA Novosti, September 2017, https://ria.ru/20170927/1505682403.html

        [3] TRT Russian, Turkish delegation released a report on human rights in Crimea, June 2015,  https://www.trt.net.tr/russian/iz-rossiiskogo-i-turietskogo-mira/2015/06/15/turietskaia-dielieghatsiia-obnarodovala-doklad-o-pravakh-chielovieka-v-krymu-304805

        [4] Based on Anton’s own interview – conversations with the representative from Ukrainian organisation

        [5] Anton Naumluk, Dark times in the Crimea. Agora Protects Dissenters, Svoboda, February 2019, https://www.svoboda.org/a/29760481.html

        [6] Valentin Gonchar, The blockade is a necessary first step towards the liberation of Crimea, Radio Free Europe/Radio Liberty, https://ru.krymr.com/a/27240750.html

        [7] Popkov mentioned it at the interview to the author, but also repeated this to Novaya Gazeta, Collapse networks, July 2016, https://www.novayagazeta.ru/articles/2016/07/11/69229-svorachivayte-seti

        Footnotes
          Related Articles

          Education and Information – the golden passport for young Transnistrians

          Article by Alina Radu

          Education and Information – the golden passport for young Transnistrians

          Imagine that you are young, hardworking and have just been accepted to one of the best universities in Europe, you even got a scholarship that covers your expenses, but your passport is closing all the doors. No, you did nothing wrong, you were just born in a difficult place. Imagine you have opportunities to study in good schools and you want to bring back all the knowledge you will obtain back to your people, but your region is not on official maps, nor on official lists of passports to get a visa or a travel permit. Imagine that the leaders of your homeland travel to the most beautiful and developed countries, for business and/or vacations, but you cannot leave to go study. Is that right? Does that align with human rights?

          This is what has been happening for the last few decades in the Transnistrian region. For more than 20 years, some thousands of people born in this territory get passports that represent, in a way, their identity but not their opportunities. With a Transnistrian passport someone can travel to a very limited number of places, almost nowhere, because not one United Nations (UN) country recognises it as a country.[1]

          Being born on a territory that limits educational (and any other) opportunities should not be a source of guilt, but a synonym for the fight for personal rights. ‘Everyone has the right to leave any country, including his own’ says the Universal Declaration of Human Rights (Article 13). But, there are territories that are not state parties to UN covenants, or other standards of human rights.[2] 

          If a passport does not allow you to travel abroad for University, ask yourself how do the leaders of the Transnistria region travel?[3] A video filmed last year at Chișinău (capital city of Moldova) Airport, shows the arrival of Transnistrian leaders from Germany with a large load of goods, while their bodyguards were blocking reporters from filming and asking questions. Transnistrian leaders hold passports from other countries. So, if they lead a de facto state but travel with the passport of another country, people deserve to know how they have achieved this and how it could also work for themselves.

          After decades of this unrecognised reality, some people in the Transnistrian region have as many as four to five passports from different entities: the Soviet one – for memories, the Transnistrian – for local identification, the Russian – to travel to Russia and former Soviet Union territories, the Moldovan – to travel to up to 70 countries, and some people also have the Romanian passport, that allows them to travel to 118 states without a visa.

          Travel abroad is possible only with the last three passports, with the last two there are no visa requirements to travel to the European Union (EU), and with the last one you have the possibility to work in the EU and be exempt of educational taxes for student fees in many universities.

          It has been almost five years since the start of the Visa Free Regime between Moldova and the EU, and any person born in the Transnistrian region is welcome to get a Moldovan passport. By having that passport they also find it easier to directly access their rights, including those specified in the UN Charter, the Council of Europe charters, and specifically the European Court on Human Rights (ECtHR). And this form of access works, with the support of Moldovan lawyers and NGOs to raise matters with the international mechanisms.

          Having a right does not mean it is automatically respected in such unrecognised areas. But it does mean that there is a system of rights and institutions with obligations to uphold those rights. Thomas Hammarberg, in his role as UN Senior Expert on Human Rights in Transnistria, did a monitoring visit to Transnistria back in 2013.[4] The conclusions were not the most positive and there were many recommendations for improvements. Five years later, Hammarberg returned to Transnistria and found an amazing thing.[5] Yes, the territory is still unrecognised and the institutions are not efficient, but he noticed ‘a growing human rights awareness in the Transnistrian region. In several key areas’. It is obvious that in the Transnistrian region more and more people know what their rights are and where to look for truth and justice, but the way to go is still long.

          While many of the Transnistrian people use Moldovan passports, they cannot use the Moldovan judicial system to fight for their rights. But they may ask for help from the ECtHR.

          The Media Center in Tiraspol does the hard job of amplifying the voices of citizens in the region. A special online project ‘No Torture!’ helps citizens to understand their rights, how not to be punished unlawfully and how to get help.[6] A specially-made video aids in informing citizens from the region how to appeal to the ECtHR.[7]

          There is a long list of cases won by citizens from the Transnistrian region at the ECtHR. It started in 2004, when a group of prisoners of war detained since 1992 in different prisons in the region won their case at the ECtHR. The Ilascu Case was the first case to prove at an international court that the Russian Federation was involved in the war of 1992 and in the further separation of the region.[8] The Russian Federation accepted the decision and payed damages to all four prisoners of war.

          After that, many other groups from the region claimed justice at the ECtHR and won. Among these numerous groups were parents and children attending Romanian language schools in Transnistria that had been prohibited to study in their mother language in their home cities. The Russian Federation was found guilty of obstruction of education rights in eight schools in the region.[9] The decision was pronounced in 2012. The Russian Federation has not yet paid damages, but there has still been a decision and all the pupils, their parents and teachers have learned that they have rights in this issue. Many of those pupils have already finished school and many of them got into European Universities, including Romanian establishments that provide scholarships to young people in difficult conditions. Through the ECtHR case people involved have learned to have a better future, a future with fulfilled human rights.

          The violation of human rights in the region never stopped, but the number of people looking for justice in respect to their rights is higher. The 2018 list of decisions from the ECtHR about citizens living in the Transnistrian region is long enough, and the guilty countries are the Russian Federation and the Republic of Moldova.[10] Transnistria, not being considered a country, is not named guilty, but a list of local officials are named guilty for breaking fundamental human rights. The names of officials include Igor Smirnov, former president of the region and his son Vladimir Smirnov – the former head of local customs. People complained against them for multiple reasons, including inter-alia; unlawful detention, torture, limited access to properties, right to education; and all of them won. Many of the complainants received financial damages paid by the Republic of Moldova and the Russian Federation. All of them made the complaints to the ECtHR as citizens of the Republic of Moldova or the Russian Federation. Not one person made a complaint on the basis of Transnistrian identity. Citizenship is a right and a tool for enforcing rights – a lesson learned by all sides.

          A short look at the official news webpage of the Transnistrian administration shows that Moldovan citizenship is largely recognised. At the end of April 2019 a Moldovan athlete, Lilia Fisikovich was selected to participate at the Olympic Games in Tokyo in 2020.[11] She was born in Tiraspol, the capital of the Transnistrian region. But she won under the Moldovan flag and she is congratulated on both sides of the river Nistru. Recently, a group of children from Transnistria won medals at an international swimming competition in Ukraine.[12] How could people from a disputed territory participate in competitions in Ukraine that is suffering from territorial disputes? The young swimmers competing under the Moldovan flag, and most probably, with Moldovan passports.

          So did ‘DoReDoS’, a band from the region who won the national Moldovan Eurovision contest and represented the whole of Moldova in Portugal in the 2018 ‘Eurovision’ international contest.[13] Some days ago, the same state agency informed the public that the title ‘Miss Europe’ belongs to a Transnistrian girl.[14] While the word ‘Europe’ is used in music, sports and cultural events, in politics it is seen as a problem in many cases.

          Looking at the same official press agency from Tiraspol, ‘Novosty Pridnestrovia’ we find many ‘bad news’ articles of events happening in EU countries: ‘press freedom in EU is worse than ever’, ‘death because of air pollution doubled’, ‘tourists in Europe are unhappy’.[15] All of these negative news articles are based on real facts and no doubt do contain some information citizens should be informed about. But, for example, on the same press agency webpage we could not find one article about freedom of the press in the Transnistrian region.[16] Reporters from the region have come a long way from the Soviet era of journalism to modern reporting. They have participated in hundreds of media trainings in Chișinău, Brussels, Riga, Stockholm, Washington DC, and Chicago. They have visited newsrooms worldwide and they have learned how to make balanced news, visual journalism, and investigative reporting. Thus, their inability to work at home and the lack of freedom of the press in the region is among the worst problems for Transnistria. One of the few articles in the region about freedom of the press argues that it is much worse in Transnistria than everywhere else in Europe.[17]

          While Article 10 of the European Convention on Human Rights (ECHR) guarantees ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’, reporters in the region claim that they cannot publish any critical article about the ruling administration, that many editors-in-chief and journalists were fired because of their wish to use freedom of speech. It is not enough to have the freedom to criticise the Moldovan Government or European governments. Journalists and society should be able to analyse and debate problems at the local level. For now, one good thing in the region for journalists is that they can travel to many places with Moldovan passports to learn. Back at home, they, as holders of Transnistrian passports, cannot write free news if they are critical about the local government, and they might not be able to publish positive news if it is about Moldova as a whole or about the EU. Despite these issues, there is the Internet for sharing and publishing news that has no borders.

          Freedom of the press is complex and involves many responsibilities. One of them is to bring to attention the voices of the unheard. The Media Center in Tiraspol helps journalists and citizens to shed light on their lives, including the difficulties. ‘Who are human rights defenders in Moldova?’[18] ‘What is a freelance journalist and how (s)he works?’[19] ‘What is the right to information?’[20] – The answers to all these questions are online, and in the Transnistrian region almost every household has access to the internet. There is also information about how to look for information and how to use databases from local government to the Moldovan government.[21] Information in the public realm does not have boundaries. Holders of any passport are able to check public information and databases in Moldova. And when there is a lack of journalists, anybody can learn how to do citizen journalism in Transnistria.[22]

          While modern democratic principles are more and more accepted by citizens of the region and most of the people have and use other countries passports, the authorities of Transnistria stick to the old concept of keeping the region in the list of unrecognised territories. Recently, the president of the region, Vadim Krasnoselsky, promised the citizens that “Pridnestrovie will be recognised. Foreigners should get used to the real name of the country”, adding that “we are a successful modern state”.[23]

          The last meeting between Krasnoselsky and the EU Ambassador to Moldova, Peter Michalko showed again the pleasure to have opened doors to the EU. Krasnoselsky confirmed that the “EU is among the most important trade partners of Transnistria”, while Michalko mentioned that he is glad that “Transnistrian businessmen use the opportunity to have access to [the] EU market and the volume of commercial transactions is growing”.[24] Transnistria does not have any commercial agreements with the EU, the only way for regional businesses to access to European market is to hold official Moldovan documents, including passports. And everybody knows about that fact, including the office of the leader of the region.

          For now, people living on the left bank of Nistru river may get Moldovan passport without any difficulty, have access to education, the health system, pensions, and other services, as well as travel and conduct with business the EU. However, Krasnoselsky claims that any unification with Moldova is impossible. “I am for the unification of Moldova, but without Pridnestrovie. This is fundamental”, claims Krasnoselsky in an official statement.[25]

          Nevertheless, thousands of people living in the Transnistrian region, being holders of Moldovan passports, participated actively in Moldovan elections in February 2019, electing their MPs to the Chișinău Parliament. Despite the rumours that the voters were organised by some politicians, and possibly bribed to vote, the ice was broken and people from the area attained new skills – voting for members of the Parliament of an EU partner country.[26]

          Who wins in this territorial dispute? Russia? Moldova? The EU? The Transnistrian administration?  The real winners are those who obtain access to education and information. Every year thousands of young people from Transnistria, having passports from other countries, travel to study, to visit, to participate in international competitions, conferences, symposiums. Some of them come back to bring their knowledge and experience home, some of them choose to stay in other places. And this effects their personal lives and the life of their region for example by setting up NGOs or working as freelance journalists or independent experts.


          Author’s bio: Alina Radu is the Manager of the biggest investigative reporting group in Moldova – Ziarul de Gardă (ZdG). ZdG is affiliated to GIJN (Global Investigative Journalism Network),WAN-IFRA (World Association of Newspapers – through Moldovan Association of Independent Press), SEEMO (SouthEastEuropean Media Network), RLNE (Russian Language Media News Exchange).ZdG covers Moldova, Romania, former Soviet countries, conflict areas, corruption and human rights – worldwide.

          Photo by Clay Gilliland, Transnistrian Parliament House, September 2013, https://www.flickr.com/photos/26781577@N07/11384632876/. No modifications to photo. Creative commons license https://creativecommons.org/licenses/by-sa/2.0/

          [1] The President Pridnestrovsk Moldavian Republic, About Citizen’s Passport Pridnestrovsk Moldavian Republic, Zakon-pmr.com, March 2002, http://zakon-pmr.com/DetailDoc.aspx?document=62492

          [2] United Nations General Assembly, Universal Declaration of Huma Rights, United Nations, December 1948, https://www.un.org/en/universal-declaration-human-rights/

          [3] Correspondence From Chisinau, Journalists assaulted in Chisinau. The body guard of the Tiraspol leader forbade them to shoot, Stirile TV, October 2014, http://stiri.tvr.ro/jurnalisti-agresati-la-chisinau–paza-de-corp-a-liderului-de-la-tiraspol-le-a-interzis-sa-filmeze_50766.html#view

          [4] Thomas Hammarberg, Report on Human Rights in the Transnistrian Region of the Republic of Moldova, United Nations in Moldova, February 2013, http://www2.un.md/key_doc_pub/Senior_Expert_Hammarberg_Report_TN_Human_Rights.pdf

          [5] Thomas Hammarberg, Statement by Senior UN Human Rights Expert Thomas Hammarberg on the conclusion of his visit on 28 May – 1 June 2018, United Nations in Moldova, June 2018, http://md.one.un.org/content/unct/moldova/en/home/presscenter/press-releases/statement-by-senior-un-human-rights-expert-thomas-hammarberg-on-.html

          [6] Media Center of Transnistria, No Torture! – The main, Media Center of Transnistria, https://pitkamnet.mediacenter.md/

          [7] ProtivPytok, If you are tortured and decide to appeal to the European Court, Youtube video, February 2014, https://www.youtube.com/watch?v=S6r9E1V1BD0

          [8] Human Rights House Foundation, Ilascu and Others vs. Moldova and Russia, Human Rights House Foundation, July 2004, https://humanrightshouse.org/articles/ilascu-and-others-vs-moldova-and-russia/

          [9] Natalia Munteanu, Schools in Transnistrian Region Teaching in Romanian Language Waiting for Solutions to their Problems, PromoLEX, December 2018, https://promolex.md/14094-problemele-scolilor-cu-predare-in-limba-romana-din-stanga-nistrului-raman-in-asteptarea-rezolvarii/?lang=en

          [10] PromoLEX, List of Persons Responsible for Violations of Human Rights in the Transnational Region, PromoLEX, March 2019, https://promolex.md/wp-content/uploads/2019/03/Lista_2018_persoane-responsabile-de-violare_Promo-LEX.pdf

          [11] Sport News, Lilia Fiskovich has passed the selection for the Olympic Games – 2020, Novosty Pridnestrovia, April 2019, https://novostipmr.com/ru/news/19-04-28/liliya-fiskovich-proshla-otbor-na-olimpiyskie-igry-2020

          [12] Sport News, Transnistrian swimmers won medals in the Championship of Ukraine, Novosty Pridnestrovia, April 2019, https://novostipmr.com/ru/news/19-04-29/pridnestrovskie-plovcy-zavoevali-medali-na-chempionate-ukrainy

          [13] Ephraïm Beks, Moldova chooses DoReDoS for Lisbon, Eurovision, February 2018, https://eurovision.tv/story/doredos-to-represent-moldova-in-eurovision-2018

          [14] Society News, The participant of the Dubossary Team ‘Serpentine’ won the title ‘Miss Europe’, Novosty Pridnestrovia, April 2019, https://novostipmr.com/ru/news/19-04-06/uchastnica-dubossarskogo-kollektiva-serpantin-zavoevala-titul-miss

          [15] Site Search, Search query ‘Europe’, Novosty Pridnestrovia, https://novostipmr.com/ru/search/site/%D0%95%D0%B2%D1%80%D0%BE%D0%BF%D0%B0?page=5

          [16] Site Search, Search query ‘Freedom of press’, Novosty Pridnestrovia, https://novostipmr.com/ru/search/site/%25D0%25A1%25D0%2592%25D0%259E%25D0%2591%25D0%259E%25D0%2594%25D0%2590%2520%25D0%259F%25D0%25A0%25D0%2595%25D0%25A1%25D0%25A1%25D0%25AB

          [17] Vladik Magu, Freedom of speech in Tansnistria, NewsPMR.Com, February 2018, http://newspmr.com/novosti-pmr/obshhestvo/17409

          [18] Michael Forst, On the situation of human rights defenders in the Republic of Moldova, Media Center of Transnistria , July 2018, https://mediacenter.md/prava_celoveka/1356-o-polozhenii-pravozaschitnikov-v-respublike-moldova.html

          [19] Media Center of Transnistria, Freelance journalist: specifics of work in Transnistria, Media Center of Transnistria, December 2017, https://mediacenter.md/dostup_k_informacii/1286-zhurnalist-frilanser-specifika-raboty-v-pridnestrove.html

          [20] Media Center of Transnistria, The result of the verification of the violation of the fundamental right – the right of access to information, Media Center of Transnistria, May 2017, https://mediacenter.md/dostup_k_informacii/1216-rezultat-proverki-narusheniya-fundamentalnogo-prava-prava-na-dostup-k-informacii.html

          [21]Media Center of Transnistria, Databases to assist investigative journalists, Media Center of Transnistria, October 2016, https://mediacenter.md/dostup_k_informacii/1138-bazy-dannyh-v-pomosch-zhurnalistam-rassledovatelyam.html

          [22] Media Center of Transnistria, Recruitment to the School of Citizen Journalism, Media Center of Transnistria, March 2019, https://mediacenter.md/obiavleniya/1410-nabor-v-shkolu-grazhdanskoy-zhurnalistiki.html

          [23] Press Officer, Vadim Krasnoselsky: “Transnistria will be recognised. Foreigners need to get used to pronouncing its true name”, President.gospmr, April 2019, http://president.gospmr.org/press-sluzhba/novosti/vadim-krasnoseljskiy-pridnestrovje-budet-priznano-inostrantsam-nado-privikatj-proiznositj-ego-istinnoe-nazvanie-.html

          [24] PSPPMR, President of the PMR met with the Head of the EU Delegation to Moldova Peter Mihalko, Youtube video, April 2019, https://www.youtube.com/watch?v=T6eq9H0Tf4k

          [25] Special Opinion News, Vadim Krasnoselsky: I am for a united Moldova, but without Transnistria, Novosty Pridnestrovia, February 2019, https://novostipmr.com/ru/news/19-02-11/vadim-krasnoselskiy-ya-za-edinuyu-moldovu-no-bez-pridnestrovya

          [26] Reporter de Garda, How people voted in Varnita / Parliamentary Elections, Youtube video, February 2019, https://www.youtube.com/watch?v=bpXMneHPEWc&t=4s

          Footnotes
            Related Articles

            Conclusions and Recommendations

            Article by Gunnar M. Ekelove-Slydal, Adam Hug, Ana Pashalishvili and Inna Sangadzhiyeva

            Conclusions and Recommendations

            This collection of essays has sought to provide a platform for a range of different views about some of the most challenging debates in human rights and peace building. It does not make any claim to be exhaustive or definitive, indeed there are many important perspectives that will need to be part of future work, but it does attempt to be a starting point for conversations about the competing rights and responsibilities at play in this challenging area. It also seeks to remind all parties to the conflicts and the international community at large that all people have human rights irrespective of where they live.

            Neither the editors of this publication nor their respective organisations, the Foreign Policy Centre (FPC) and the Norwegian Helsinki Committee (NHC), are endorsing any views on the intractable issues of status set out by a number of the other essay contributors. However, it is important that local voices are heard, while recognising and understanding that their positions can be painful to hear for those from the states from whom they are trying to formally separate and particularly for those from internally displaced persons’ (IDP) communities whose lives have been changed irrevocably by the conflicts that forced them to flee. Nevertheless, the issues around status remain intractable at an intergovernmental level and the subject of much substantive research by peacebuilders and academics that we do not attempt to replicate here. It is with that in mind that the conclusions that we attempt to draw here and the suggested recommendations for action look to proceed as much as is possible, given the challenges of doing so, from a status-neutral position.

            At the heart of this debate is the question of whether and how the international community should engage with the de facto authorities, local civil society and civil society. Georgia, Azerbaijan and Ukraine in particular[1] robustly defend against any initiatives that would be seen to lend credibility to the de facto authorities or their policies. As a result, engagement on these issues by international governments and institutions from the Organisation for Security and Co-operation in Europe (OSCE) to the European Union (EU) is couched in terms of reiterating and reinforcing the parent state’s position on territorial integrity. The de facto authorities in turn similarly robustly defend their own claims to independence and regularly reject initiatives and attempts at international monitoring that seek to assess the situation in the breakaway regions formally as part of the international community’s work in the parent state. For example, efforts by the United Nations (UN) Human Rights Council and special rapporteurs to visit Abkhazia and South Ossetia as part of their mandate investigating the situation in Georgia have been rejected a number of times.

            Recent efforts to change facts on the ground that only create further challenges on the issue of status, such as the attempts at ‘borderisation’ through barbed wire fences and other means, between both South Ossetia and Georgia and between Abkhazia and Georgia, risk undermining the human rights of people living in or near the Administrative Boundary Lines (ABLs). Such changes create specific challenges for members of the two disputed territories’ Georgian communities and those living in Georgian controlled territories. Stopping ordinary people from physically crossing the ABLs or making it more difficult for them to travel by preventing them from getting the relevant documents both impinges on their human rights and undermines efforts at confidence building that would be a necessary part of any path to conflict resolution. The Government of Georgia may also want to consider however that particularly in Abkhazia the inability of the de facto authorities to build their own capacity, partially as a result of international pressure, has led to an expansion in Russian control and influence beyond what would have been desired by many in the local power elites.

            In this essay collection a number of different authors make suggestions for engagement to address both human rights challenges and to build local capacity to address every day needs, some of which are more status neutral than others. While these are all worth considering on their own merits the editors wish to narrow the focus of our conclusions overall to three areas: engagement with civil society such as non-governmental organisations (NGOs), journalists, lawyers and other non-state actors; access to international law; and the rights of national minorities and IDPs.

            Civil Society

            This collection has made clear that finding ways to engage with and support local NGOs, journalists and lawyers to learn, strengthen and push back against those that would curtail their activities are central to efforts to improve human rights in unrecognised states. International NGOs and donors can face a significant challenge in making contact with their counterparts in de facto states through a mixture of bureaucratic hurdles, political pressure and legal restrictions or sanctions by both status conscious ‘parent’ states and wary de facto authorities. Physically getting access to de facto states can be challenging, particularly for those seeking to do so in a manner that doesn’t antagonise the parent states (accessing the de facto states from Georgia, Azerbaijan and Ukraine rather than the quicker routes via Armenia and Russia). Azerbaijan has been known to blacklist people that have visited Nagorno-Karabakh via Armenia without permission and organisations that do not follow the procedures set out by Georgia and Ukraine will face a significant backlash that would create problems for their work in those countries. In his essay Anton Nemlyuk specifically called on Ukraine to find ways to request permission to access Crimea remotely and if possible find ways to allow permission for access via Russia rather than Ukraine’s land border, while the NHC and others have called for greater flexibility from all parties to facilitate people-to-people contact both to allow status-neutral field research and to work directly with local counterparts.

            Access issues include attempts to restrict the international funding of NGOs by the South Ossetian (and of course Russian) foreign agents laws, Transnistrian legislation on reporting requirements and funding approval by the Coordination Council of Technical Aid[2], as well as other official and unofficial pressures from the parent state against local NGOs collaborating with international groups. The precarious legal and security situation facing the de facto authorities, as well as Russian pressure in a number of cases, is a key factor in the wariness towards international collaboration. However, given that these de facto administrations regularly call for international engagement, the EU and international governments need to be proactive in defending the right of international civil society to gain access. Efforts at improving access for human rights NGOs will of course sit alongside similar efforts to defend Track-2 peacebuilding initiatives, with efforts to improve human rights potentially creating more space for honest and open dialogue on conflict issues. 

            A range of different types of civil society engagement that would be beneficial have been suggested throughout this publication. These include supporting independent reporting and newsgathering efforts to draw attention to the activities of the de facto authorities, improving awareness and accountability amongst the residents of the de facto states, within the public and elites of their metropolitan state patrons, ‘parent’ states and to the international community. There are also calls to back efforts that bring together lawyers, journalists and NGOs to encourage collaboration. Such collaboration is believed to be important in addressing human rights issues, disseminating knowledge about human rights and building pressure on authorities (de facto and de jure) to address issues. This work could be through joint trainings, ad hoc collaboration or assisting with the development of more structured, though still informal, associations to help build networks and trust.

            Donors, whether philanthropic or governmental, need to be clear that though targeted funding at groups unlikely to receive local support can be helpful, skill sharing and helping give a platform for local voices is also important. This is because particularly in the cases of South Ossetia, Abkhazia, Transnistria and to a lesser extent for Nagorno-Karabakh any financial or economic incentives the international community might be able to bring to the table will be dwarfed by the scale of financial transfers being provided by Russia or to some extent by Armenia and its diaspora communities. As Thomas De Waal points out, as part of a recent study of a number of unrecognised entities, in Abkhazia ‘Moscow’s spending on pensions alone was more than ten times the EU’s aid program in 2008–2016.’[3]

            Efforts to directly improve the performance of the de facto human rights ombudspeople, while potentially beneficial, would face significant hurdles for international governments or international institutions. There may however be space to strengthen the capacity of local NGOs and lawyers to improve their abilities to influence and where necessary push back against de facto agencies and bodies, empowering people and reducing the power imbalance between them and the de facto institutions rather than empowering the institutions themselves.

            A number of contributors have argued in favour of finding ways to improve the provision of public goods such as health care, education, social services, youth provision, and housing to improve the wellbeing of local people. However, if the de facto authorities are the ones providing the service there is a significant challenge that capacity building efforts even in these areas would be seen as enhancing their capacity to govern and therefore not be status neutral. A possible alternative might be to find ways to expand the capacity of local civil society to deliver such services, so that in theory such provision could continue irrespective of who controlled the area.

            Accessing international law

            The second main dimension for protecting people’s rights is through international law, and while international bodies may set challenges for the de facto authorities[4] ultimately the rights and duties flow through and reinforce the importance of the recognised states who are signatories to the relevant treaties. A number of essays but particularly that by Ilya Nuzov show the importance of applying international law, particularly the European Convention on Human Rights to abuses committed in the breakaway entities. As set out above improving capacity of local lawyers working on the ground in the de facto states and in the border and IDP communities impacted by the conflicts, improving technical expertise and legal knowledge is a vital first step. However, it is also essential to help support lawyers in the metropolitan states (Georgia, Russia, Armenia, Azerbaijan, Ukraine and Moldova) who are able to take cases of abuse and seek remedies through the European Court of Human Rights (ECtHR).

            Both improved legal documentation and other information gathering efforts may open up opportunities for ‘Global Magnitsky’ type legislation in a number of important international jurisdictions including the US, UK and the Baltic states that could target the international assets of local human rights abusers and their enablers in the governments of occupying powers. Similarly, such documentation may help facilitate cases in third country courts operating under universal jurisdiction to holder abusers to account. Donors need to consider how they can best assist with supporting efforts to access the ECtHR, courts of universal jurisdiction and to trigger international sanctions.

            As the NHC have set out in their essay earlier in this publication both the patron and the parent state as well as de facto authorities have a responsibility to respect, protect and fulfil human rights to the extent that they have effective control over a territory. They should co-operate in facilitating access to international human rights mechanisms and in the implementation of international decisions. While ‘parent states’ can be challenged over ways in which they may be inflexible in their approach, the ultimate responsibility for allowing access by international human rights mechanisms lies with the de facto authorities and their international patrons. Failure to provide access to monitoring by UN, OSCE and Council of Europe human rights mechanisms will continue to be seen as a sign of defensiveness about local standards, undermining international perceptions of the de facto authorities’ capacity to effectively provide governance to the areas under their control.

            Minorities and IDPs

            Protecting the human rights of minority communities within the areas controlled by de facto authorities is not only one of the most important areas for improving human rights standards in these areas but will be an essential component for any future peace process or discussions on status. Whether future paths on status lead towards reunification, independence, annexation[5] or perpetual limbo, the credibility of the de facto authorities and occupying powers will be judged by the international community by how they treat minority groups who live in the territories they control. In the case of Abkhazia, however one defines the issue of status, the challenges facing members of the Georgian community in the Gali region will continue to be particularly sensitive and practical steps to improve the situation for the local population are urgently needed. 

            The IDP dimension has been less of a focus for this publication given other work in this area but it remains no less important. There is more that the international community can do to raise awareness of the continuing plight of IDPs in Georgia, Azerbaijan and Ukraine, particularly those whose future remains uncertain. This can include more concerted efforts to improve financial and technical support through the office of the UN High Commissioner for Refugees (UNHCR) and other mechanisms, and ensuring that issues around protecting the property rights of IDPs pending any agreed peace settlement remain a core dimension of any international dialogue with the de facto authorities. 

            Recommendations

            To the de facto authorities and recognised state governments

            • Abide by all relevant European and UN human rights standards irrespective of status as a formal signatory to these statutes;
            • Remove onerous official and unofficial pressures on NGO activity including those on international funding;
            • Protect the rights and welfare of IDPs and minority groups;
            • Facilitate access by UN, OSCE, Council of Europe and other international human rights mechanisms irrespective of the status under which they operate; and
            • Reduce bureaucratic hurdles for independent human rights groups, NGOs, lawyers and activists to gain access to disputed territories without fear for their future ability to work elsewhere in the region.

            To the International Community and Global Civil Society

            • Ensure that human rights issues are a central part of any dialogue with the de facto authorities and the state parties to the conflicts;
            • Support capacity-building and information sharing, both technically and financially, for civil society in unrecognised states;
            • Support independent reporting and newsgathering efforts about the activities of the de facto authorities;
            • Assist local lawyers to develop their capabilities within local de facto legal systems and to build partnerships with NGOs and journalists;
            • Work both locally and internationally to build cases that can be brought to international legal mechanisms such as the ECtHR and courts of universal jurisdiction;
            • Utilise sanctions, including Global Magnitsky type provisions, against both individuals and entities involved in carrying out or enabling human rights abuses in unrecognised territories;
            • Submit amicus curae communications to international enforcement mechanisms expressing the need for clearer delineation of obligations and responsibilities between de facto and de jure authorities; and
            • Improve support for IDP communities both in terms of living conditions and defending their rights.

            Authors’ bios:

            Gunnar M. Ekeløve-Slydal is Deputy Secretary General, Norwegian Helsinki Committee, and a Lecturer at the University of South East Norway. He studied philosophy at the University of Oslo and worked for many years for the Norwegian Centre for Human Rights at the University of Oslo and as Editor of the Nordic Journal on Human Rights. He has written extensively on human rights, international institutions, and philosophical themes, including textbooks, reports, and articles.

            Adam Hug became Director of the Foreign Policy Centre in November 2017. He had previously been the Policy Director at the Foreign Policy Centre from 2008-2017. His research focuses on human rights and governance issues particularly in the former Soviet Union. He also writes on UK foreign policy and EU issues.

            Ana Pashalishvili is a lawyer with a broad spectrum of expertise in international law and human rights. She joined the NHC in April 2014 and since then has been actively working on topics related to human rights, international public and criminal law as well as data privacy, documentation and project management.

            Inna Sangadzhieva is a Senior Advisor at the Norwegian Helsinki Committee (NHC). She is a linguist from the Kalmyk State University (Russia) and has MA at political science from the University of Oslo.  Inna has been working at the NHC for 15 years, she is an author of several articles and reports, mostly regarding the political and human rights situation in Russia and the former Soviet Union.

            Photo by Lene Wetteland, Norwegian Helsinki Committee

            [1] The Moldova-Transnistria situation is somewhat more fluid and flexible, albeit that status issues do still pose major challenges.

            [2] Freedom House, Freedom in the World 2019: Transnistria, https://freedomhouse.org/report/freedom-world/2019/transnistria

            [3] Recent works by authors such as Thomas De Waal and the International Crisis Group have set out ideas for status neutral engagement in a range of different spheres that stretch beyond the human rights focus of this publication. For example https://carnegieeurope.eu/2018/12/03/uncertain-ground-engaging-with-europe-s-de-facto-states-and-breakaway-territories-pub-77823

            [4] For example as noted by Ilya Nusov ‘Resolution 2240 on access to ‘grey zones’ by CoE and UN human rights monitoring bodies, the Parliamentary Assembly of the CoE (PACE) considers that: the exercise of de facto authority brings with it a duty to respect the rights of all inhabitants of the territory in question, as those rights would otherwise be respected by the authorities of the State of which the territory in question is a part; even illegitimate assumption of powers of the State must be accompanied by assumption of the corresponding responsibilities of the State towards its inhabitants.’ http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=25168&lang=en

            [5] In the case of Crimea Russia has already taken this step but at present it seems unlikely that the international community is willing to acquiesce to Russian demands for recognition of its annexation in the near future.

            Footnotes
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              FPC Briefing: Rethinking ‘Wider Europe’ in Times of Liberal Crisis

              Article by Dr Kevork Oskanian

              September 24, 2019

              FPC Briefing: Rethinking ‘Wider Europe’ in Times of Liberal Crisis

              Introduction

              During much of the preceding decade wider Europe’s strategic landscape, from the Atlantic-to-the-Urals, has been marked by two interrelated phenomena. On the one hand, the continent has seen a continuous deterioration in relations between Russia and the West. On the other, as elsewhere, it has witnessed an ebbing of the once unassailable confidence in liberal[1] institutions that emerged in the immediate aftermath of the end of the Cold War. Both of these processes have now reached crisis point. Russia’s annexation of the Crimean peninsula, its ongoing involvements in Eastern Ukraine and Georgia, its subversion of political processes in liberal-democratic states have so far been only partially addressed. While Brexit and its complications have to some extent decreased the continental electorates’ Eurosceptic tendencies, the liberal regional order’s longer-term challenges remain, as witnessed in the populist-authoritarian rollback in member states like Hungary and Poland, and a continuing populist challenge in Europe’s core.

              The responses to these crises have so far been marked by incoherence. On the one hand, Russia has been subjected to economic and personal sanctions; both Ukraine and Georgia have continued their integration into the European Union (EU)’s norms and North Atlantic Treaty Organisation (NATO) military frameworks; and comprehensive strategies have been worked out at both the national and international institutional levels against Russia’s hybrid forms of warfare.[2]  On the other hand, large-scale energy projects like Nord Stream 2 have been pushed ahead; the Treaty on Conventional Armed Forces in Europe (CFE) and the Intermediate-Range Nuclear Forces (INF) Treaty have been declared defunct;[3] defence spending by most European NATO allies has remained well under the two per cent target (much to the consternation of the current administration in Washington DC); neither Ukraine nor Georgia have been offered concrete timelines for full NATO membership; and only piecemeal measures have been taken in response to money-laundering by former Soviet elites, notably in the United Kingdom’s (UK) overseas territories.[4]

              Neither have the weaknesses internal to ‘wider Europe’s’ institutional infrastructure been addressed. In spite of numerous earlier pledges, fundamental reforms to the EU institutions have been postponed. Ambitious proclamations notwithstanding, the EU and many of its constituent states have remained vulnerable to authoritarian backsliding and populist disruption. The other elements of ‘wider Europe’s’ organisational order don’t present a more coherent picture. Rivalry between Moscow and the West has turned the Organisation for Security and Co-operation in Europe (OSCE) – once touted as the core provider of ‘comprehensive security’ in post-Cold War Europe – largely irrelevant to high politics (although some of its components and programmes have retained their usefulness in monitoring the continent’s more problematic spaces).[5] The Council of Europe (CoE) – the central institutional plank of Europe’s Human Rights regime – has lost much of its effectiveness, and, in fact, legitimacy, through various corruption scandals in its Parliamentary Assembly – not to mention the ability of various, more illiberal members states, including Russia, to flagrantly violate its precepts without much consequence.[6] While the credibility of NATO’s core function – collective defence under Article V – has remained intact, earlier hopes that it would spread peace and security throughout the continent as it expanded have run up against the realities of an assertive Russia in Ukraine, and Georgia.

              Russia’s unwillingness to abide by normative and institutional frameworks created in the 1990s has often been identified as a key problem in the charged strategic landscape of contemporary Europe. While, indeed, much of the weakening of these structures has to do with the disinclination of an increasingly alienated Moscow to recognise their legitimacy, there is another side to the story: in fact, the assumptions on which Europe’s current legal-institutional order was founded were specific to a particular era – the liberal 1990s – whose historically contingent conditions were projected far in to the future. Times have changed, and many of the assumptions that initially underlay these institutions have either been contradicted, or have become outdated; as a result, the institutions they engendered have been left vulnerable to attack, or become counter-productive to their original aims.

              Much has to do with the internal crisis in which the liberal world order at large has found itself since the 2008 financial meltdown. As many prominent scholars of this world order have argued, it appears to be shifting from a once firmly established – some would say hegemonic – liberal system, to something less cosmopolitan, less dominant, with many of the precepts of liberal ideology – including the trinity of democracy, international law/institutions, and interdependent free markets – being subjected to, at the very least, reinterpretation and reconfiguration. Even stalwart supporters of liberal internationalism – like G. John Ikenberry – have acknowledged the role of internal contradictions in weakening liberal frameworks.[7] While few have predicted a wholesale collapse of liberal institutions, many have suggested modifications of varying aspects of that order, based on new, less liberal realities.[8]

              What might such a reinterpretation of the liberal world order look like in the wider European context? As suggested above, the continent’s current institutional makeup was mainly a product of the liberal 1990s, when Central and Eastern Europe became the focus of what was probably the greatest transformational project since the Marshall Plan. Times have changed, and many of the assumptions made during that decade of transformation have ebbed away. In light of that reality, the next three sections will be asking the following three questions on the future of ‘wider Europe’s’ institutional order, concentrating on its implications for the four organisations central to it: the EU, NATO, the CoE, and the OSCE: firstly, as to the liberal assumptions driving the relevant organisations in the post-Cold War period; secondly, as to the effect of current realities on those assumptions; and, thirdly, as to the possibility of adapting these institutions to those new realities.

              Liberal Assumptions and the Post-Cold War Wider European Order

              Most of the institutions listed above – all, in fact, except the OSCE – can be traced back to the beginnings of the Cold War. Their unifying liberal logic combined efforts at pacifying the Western half of the continent through economic integration (EU) and a strengthening of civic and political rights (the CoE). These were supplemented through a transatlantic military alliance (NATO), aimed at ‘keeping the Americans in, the Germans down, and the Russians out’. The predecessor organisation to the OSCE was the child of a different age – of détente – when the Helsinki Process resulted in a quest for ‘comprehensive security’ through the Commission on Security and Cooperation in Europe (CSCE), including, importantly, the ‘human dimension’ as a prerequisite of security thus defined. As the Cold War came to an end, these institutions and their liberal normative foundations were deepened and expanded to include the ‘lost’ – Central and Eastern – portions of a reunited ‘European Family of Nations’.

              The EU, NATO and the CoE were widened to include states in this regained part of Europe. Their and the OSCE’s scopes were also deepened to embrace the new possibilities that the ‘End of History’ was supposed to have opened up. Simultaneously with eastward expansion, EU integration continued apace, moving towards the abolition of internal borders through Schengen and the adoption of a common currency, in addition to Common Foreign and Security Policies. NATO also enlarged, after having proved its value as the upholder of the new international order on the post-Cold War continent in the former Yugoslavia. The CoE was expanded to bring most of the former Soviet bloc under the umbrella of the European Convention on Human Rights (ECHR), and the jurisdiction of the Strasbourg Courts. The OSCE emerged from the CSCE at the 1990 Paris Summit, finally able to realise the ‘human’ element within its central concept of ‘comprehensive security’, long stymied by very different interpretations on either side of the iron curtain during the Cold War.

              The assumptions behind these institutional-normative expansions and reconfigurations were inherently liberal; they were late twentieth-century adaptations of the Kantian idea that democracy, free trade, and international institutions held the promise of an ever-more peaceful world. Institutions that had been a product of the Cold War were thus integrated into a higher idea, as components of a Kantian ‘pacific federation’ that would expand eastward, and bring the benefits of these three legs of the ‘tripod of the Liberal peace’ to the once shackled nations of the former Soviet bloc. All of this occurred within the broader context of globalisation: the idea that the nation-state had withered away – or was, at least, far less relevant in the global world order – was common currency up to the financial crisis of the previous decade.[9] Spurred on by ever-deeper and complex interdependence, the world was moving towards a global market in commodities and ideas, with unified – liberal – norms governing the behaviour of its actors.

              Democratic conditionality was part and parcel of this deepening and widening of the liberal zone of peace. From the mid-1990s, policymakers in the ‘old’ West adopted the adage that the rewards of institutional membership – first and foremost, in the EU – would drive candidate members towards adopting the norms embodied in the Copenhagen Criteria, eventually cementing their status as mature democracies within a broader supra-national polity, their societies made part of an admittedly elusive and controversial demos of European citizens.[10] NATO also maintained an element of democratic conditionality in its promise of safety from – certainly in Eastern European eyes – a possibly resurgent Russia.[11] A similar democratising logic – but one that included rather than excluded Russia – underlay the OSCE and CoE: here, the narrative was one of established democracies helping their less fortunate counterparts in their progression towards political maturity through the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) and the CoE Venice Commission. Their inclusion into these organisations was as much a prerequisite for, as a result of, their ongoing transition to democracy.

              The peace-making feature of this transition would be strengthened through institutionalised interaction and socialisation: all organisations mentioned above therefore offered a number of fora which allowed both political and technocratic elites to interact and integrate, apart from supervisory mechanisms gauging new or prospective members’ compliance with wider Europe’s emerging ‘thick’ normative regime. The numerous mechanisms and institutions established by the EU to that effect were seen as so successful that they came to be viewed as part of its status as a ‘normative power’; NATO’s Partnership for Peace and Parliamentary Assemblies (PAs), and the CoE’s PA and Venice Commission functioned according to that same logic, as did the OSCE’s own PA, along with its aforementioned ODIHR.[12] Of course, membership in these organisations and their ‘thick’ legal-normative environment was also seen as providing a crucial institutional barrier to conflict, as well as a further foundation for democracy and human rights, with the CoE’s Court of Human Rights one particularly important example for this line of thought.

              Such peace would, finally, be assured by making European economies inextricable: what had started with the integration of Germany and France’s Coal and Steel industries ended in the creation and expansion of an increasingly integrated Common Market, where goods, capital and labour would be freed from the shackles of international borders – the logic behind Schengen – and the unpredictability of currency rates – the argument behind the Euro.[13] Expanding this integration Eastward – through EU membership, TACIS[14], and the European Neighbourhood Policy and Eastern Partnership – would allow neighbouring countries to be subjected to these pacifying effects.[15] These peace-making assumptions also drove broader global developments as well: the 90s were the heyday of globalisation, a time when it was assumed by many – not least in the policymaking community – that integrating ‘transitioning’ economies – including Russia and China – into win-win trade and financial flows would foster an interdependence that would encourage a self-interested submission to a peaceful, liberal global order.[16]

              From Mistaken Assumptions to Institutional Mismatch

              Considering the series of assumptions outlined above, it would be a mistake to trace the problems in the contemporary European liberal order solely to choices made in Moscow. While the Putin regime and its irredentism have undoubtedly played an efficient role in the weakening of this regime, questions must also be asked of the permissive context created by increasingly outdated expectations. Firstly, the assumptions on democratisation have made this order unprepared for the possibility of rollback and crisis with mature democracies, whose stability was largely assumed to be assured – based in no small part on the linear view of history posited by liberalism itself. Secondly, the inclusion of illiberal, authoritarian states in normative institutions like the CoE and the OSCE has proved highly subversive, in some cases resulting in ‘reverse socialisation’ of parts of the Western elite. The EU and NATO have, moreover, continued relying on the logic of deepening and expansion when the geopolitical context allowing for the pacifying effects of the nineties has disappeared. Thirdly, a blind faith in economic interdependence has become increasingly outdated at a time when economic interaction should – contrary to liberal assumptions – increasingly be seen as liable to the creation of unwelcome dependencies on illiberal states which persistently maintain a zero-sum view of geo-economics – like Russia.

              Firstly, the assumed linear development of Europe’s various states towards democracy and less relevance – under the benign influence of these institutions – has not proceeded as projected. In fact, some young democracies previously classified as ‘mature’ – including Hungary and Poland – have experienced authoritarian rollback, while even long-established liberal democracies – including the UK – have entered a period of protracted polarisation and crisis, partly based on a revalidation of state sovereignty.[17] Far from a linear transition to democracy – played up at various points in the previous decades, following 1989, and the colour revolutions in Ukraine and Georgia, for instance – most post-Soviet states have seen ups and downs, a mixture of progress and regress, often hampered by the heavy structural and social realities of their Soviet legacies.[18] Added to this comes the failure of the democratic project in an autocratic Russia that, however imperfectly, has been able to emerge from the economic chaos of the 1990s while at the same time moving away from liberal political reform, in an outcome unforeseen by much of Western thinking during the previous decades.

              This is important in three ways, especially over the longer term. Firstly, the democratic peace is robustly confirmed only between mature democracies, and does not allow for rollback – since this would, over the longer term, obviate much of the confidence generated in the shared norms and expectations underlying the phenomenon.[19] In a ‘wider Europe’ of immature, or reversing democracies, the stabilising factor of democratisation therefore risks becoming less pronounced, putting a question mark on the logic of ‘pacification through democratisation’ underlying the democratic conditionalities of the past. Secondly, political models in prolonged crisis do not attract emulation as easily as their well-functioning counterparts. The crises of liberal democracy, if sustained, will affect the West’s much-vaunted normative power as they sap its ‘social capital’ both within its boundaries, and beyond.[20] Thirdly, democratic stagnation and reversal has led to normative institutions like the CoE and OSCE being weakened substantially by their inclusion of states that promote values diametrically opposed to the organisations’ own.

              This brings me to my second point, on the mistaken assumptions behind the functioning of Wider Europe’s institutions. Their expected socialisation of the elites of prospective members and neighbours into a shared culture of political and civic rights has not quite fared as expected. In the case of the expressly normative CoE, for instance, instead of undergoing such socialisation, authoritarian member states like Russia and Azerbaijan have ended up subverting many of the fundamental tenets the organisation is ultimately supposed to uphold. For example, multiple corruption scandals have rocked the organisation’s parliamentary assembly, in what could be seen as instances of reverse socialisation.[21] Meanwhile, authoritarian states in the former Soviet space have become quite successful in tailoring their repressive policies around the long timelines required for the ECHR, or have, in some cases – notably in cases involving Ramzan Kadyrov’s Chechnya – simply ignored their provisions altogether, bolstered by a controversial 2015 law stipulating the primacy of Russian constitutional over international law.[22] With the full restoration of the Russian Federation’s voting rights within the organisation, the CoE is now also confronted with a situation in Eastern Ukraine and Crimea that cannot possibly be reconciled with its most basic principles (leading to its further discrediting in places whose governments – contrary to Russia – do hold democratic aspirations). These moral inconsistencies ultimately hold the danger of hollowing out the credibility and effectiveness of an organisation defining itself primarily in normative rather than realpolitik terms.

              The OSCE hasn’t fared any better. Once touted as the premier organisation providing the triple benefits of comprehensive – that is international, economic and human – security to its members, its role has been largely reduced to the monitoring of legacy conflicts. Part of the reason is its late recognition of the ways in which semi-authoritarian regimes in the former Soviet space had perfected their hollowing out of the effectiveness of the Office for Democratic Institutions and Human Rights (ODIHR) and its observer missions, either through innovative methods, or their exclusion from electoral processes in their ‘sovereign democracies’.[23] Beyond the ‘low politics’ observation missions in Ukraine and elsewhere, the organisation has therefore lost its relevance partly because it underestimated the determination and ability of these regimes to push back rather than follow a linear, teleological movement towards inclusion into a now-weakened liberal order.  Another reason was the West’s decision to rely mainly on an expanded NATO – rather than an organisation like the OSCE, encompassing a Europe ‘From the Atlantics-to –the-Urals’, and beyond – for the provision of security on the continent.

              And indeed, when measured according to its core function – as an alliance providing collective defence for its member states – NATO has arguably been the most successful of the four elements Europe’s post-Cold War institutional regime. Mounting challenges notwithstanding, the credibility of Article V remains intact, as the Russian Federation continues to largely respect NATO’s current eastern boundary. In that sense, the previous bouts of NATO expansion can be termed a success, but the same cannot be unequivocally said about NATO’s proposed expansion into the former Soviet Union. While those under Article V protection have indeed benefited from strategic stability, the potential inclusion of former Soviet states beyond the Baltics has elicited pushback from Moscow, now resulting in the exact opposite of its initial intent.

              The problem here is that NATO eastward expansion was based on a dual, potentially contradictory logic. On the one hand, Western policymakers saw it as the cementing of stability in Central and Eastern Europe through the cementing of democratic conditionality. On the other, there was the more realist logic – most strongly expressed by the Eastern European states themselves – of securing the region from a possibly resurgent Russia.[24] As long as an internally incoherent Russia was unable to push back and the alliance in effect expanded into a strategic vacuum, this logic functioned without much contradiction: it was possible to stabilise Eastern Europe while at the same time providing it with its desired protective shield against Moscow. This changed with the inclusion of former Soviet states in the list of potential members, and the stabilisation of the Russian economy under Vladimir Putin. Russian pushback meant that, far from providing the stability it had in previous waves of expansion, NATO expansion collided with Russian zero-sum thinking and restored power to produce instability, exposing aspiring members – still outside the protection of Article V – to Russian revanchism.

              Finally, on the economic front, the integration and geographic expansion of the commercial ‘zone of peace’ has not worked as expected. Internally, the great integration projects of the 1990s – Schengen and the Euro – have created imbalances that, far from ensuring greater stability and security, have left the EU vulnerable to destabilisation, both internally and by outside players. The imbalances internal to the EU have led to crisis after crisis, and the unequal distribution of benefits and burdens to which responses have been only piecemeal, and partial.[25] The Schengen agreement was not conceived for a world where increased migration flows would combine with right-wing populism and Jihadist terrorism to ‘undermine the European project’ through an easily kindled culture of fear, and an unequal sharing of burdens.  The 2008 financial crisis, moreover, laid bare the very real structural distortions that emerged from integrating Europe’s northern and southern economies into a monetary union, without the added element of fiscal integration and institutional reform. Both these crises stressed the idea of pan-European solidarity to the brink, also revealing the extent to which ideas of a common European polis, with a commensurate European demos – once prevalent in the halls of power in Brussels[26] – were beyond reach: the perceived lack of control of national electorates over a supra-national institution further weakened the European project’s legitimacy in the eyes of many of its citizens, leaving it open to subversion by outside powers, including Russia.

              Externally, the assumed stability that would emerge from the integration of the former Soviet space – Russia included – has not come to pass. Much ink has already been spilt on the failure of the European Neighbourhood Policy and the Eastern Partnership in creating a ‘belt of stability’ around the EU; and in that sense, the problems with these initiatives run parallel to NATO expansion, stemming as they do from a tendency of a liberal West to view economic reform and modernisation in primarily positive-sum terms, as opposed to the zero-sum geo-economic thinking prevalent in Moscow. Moscow zero-sum thinking also subverted the assumptions made in giving Russia a stake in Europe’s economies, not least through Western energy and financial markets. Rather than moving Russia away from zero-sum thought through the mitigating effects of interdependence, they have created dangerous dependencies and sources of corruption, which powerful internal constituencies are invested in maintaining: witness German lobbying in favour of the Nordstream 2 pipeline, or the resistance in the City of London when it comes to tackling illicit financial flows from Russia and the former Soviet space, even in light of major scandals like Danske Bank and the ‘Russian laundromat’.[27]

              Wider Europe Beyond the End of History: towards a Pragmatic Pluralism

              What, then, is to be done in light of this disjuncture between an institutional setup founded on multiple outdated assumptions that survive by inertia, and the changed realities of an increasingly illiberal world? Many Western policymakers have been relatively slow in discarding or revising the above-mentioned assumptions governing the continent’s institutional structure; even when faced with dramatic demonstrations of their outdated and counterproductive effects in changed times, they have insistently held on to them, arguing that their abandonment would imply a capitulation, a relinquishment of the norms that had, to a great extent, become the centrepiece of the rules-based international (and regional) order established following the end of the Cold War. This reluctance is all the more understandable in view of the promises of regional peace offered by democracy, the rule of international law, and economic integration, a promise that has, to a significant extent, been spoiled by Russia.

              But such a fundamental rethink is overdue: after all, the decay in the liberal order goes beyond malicious Russian agency, being also the result of fundamental structural changes in the regional and global contexts acting as the permissive causes of global and regional liberal decline. To cling to unchanging assumptions in the face of these very real structural changes that have transformed the world away from the ‘End of History’ would, in fact, leave many of the vulnerabilities that have opened up unaddressed. Over time, it would result in a superficial addressing of the symptoms of a deeper malaise and, continuing, potentially dangerous policy failures in an increasingly unpredictable strategic environment. The 1990s were called the ‘unipolar moment’ for a reason, and to pretend that moment has stretched into the current decade is untenable.

              Firstly, there must be a recognition that liberal democracy – even in its mature form – is more fragile than thought in its 1990s heyday, and that, internally, it would have to be constantly guarded against inconsistency and decay. The goal should be to maintain the liberal Western European core as a ‘security community’: a group of states where relations based on trust are regulated through a dense network of rights and responsibilities, centred on the EU and NATO. This would, most probably, require a period of introspection and reconstruction aimed at addressing the tensions and vulnerabilities affecting the bodies politic of its member states, and its central supranational institution – the EU. Difficult choices would have to be made, not least regarding the adherence of democratically recalcitrant members states to commitments made when joining the security community’s ‘social contract’, or the nature of the EU’s source of democratic legitimacy, its demos (or its many demoi?). Considering the road already travelled – the depth of integration between the societies of the Western ‘security community’ – these challenges would not be insurmountable.

              Such introspection would also require a re-examining of the limits and possibilities of the main military component of that community – NATO – as a defensive alliance of liberal-democratic states, rather than an ever-expanding Kantian project. On the one hand, as hinted at above, the organisation has been immensely successful in ensuring the security of its existing members. On the other hand, however, the extension of its post-Cold War expansionist logic to the former Soviet Union has manifestly not resulted in the promised peace that it was so successful in delivering in Central and Eastern Europe. A strong case could now be made for reinforcing the alliance in its quite effective original defensive role, by finally addressing long-delayed thornier issues, like the longer-term untenable nature of Western Europe’s free-riding on US defence expenditures for its security.[28] But this would also imply a reconsideration of the Alliance’s expansive ‘Kantian’ mission: added on because of the demands of Central and Eastern European states, and a crisis of purpose following the fall of the USSR[29], it has now arguably been made counterproductive by the resurgence of Putin’s Russia, and the unrealistic expectations of the long-dominant, more activist versions of the liberal world-view.

              This brings be to my second point: the period of introspection would also require a reconsideration of the other outward-facing Kantian ‘grand projects’ of yesteryear, and the limiting effects of one-size-fits-all conditionality on the flexible and pragmatic foreign and security policies needed in a world where a liberal order no longer unequivocally rules the roost. If chosen, such a move away from normative and geopolitical expansion as the centrepiece of statecraft outside the liberal-democratic security community would simply be an acknowledgment of the limits of top-down democratisation in an increasingly illiberal outside world, or of military or commercial expansion into regions that are no longer a geopolitical quasi-vacuum. Engagement would depend on the demands and requirements of the relationships between the Western security community – EU, NATO – and its members on the one hand, and the states on the outside on the other, based on both  individual sovereign choices, and the limitations of a new, less favourable 21st-century geopolitics.

              Arguably, the beginnings of such a flexible approach are already visible in EU and NATO policies towards former Soviet states;[30] more of the same would possibly be needed to tackle the challenges of this new age, combined with a measure of honesty towards those states aspiring liberal states left outside the Western security community – in the contested spaces ‘in between’. Such candour about the limitations of NATO and EU expansion and the values of strategic patience would, no doubt, be a difficult pill to swallow, but it would also be an open acknowledgment of realities that have, for too long, remained unspoken, leading to unfairly heightened expectations, and inevitably broken promises. Very few in the West see either Georgian or Ukrainian NATO or EU membership as realistic propositions in the short or medium term. Efforts should thus centre on using all instruments of statecraft in favour of stability as a collective interest, rather than expansion as an end in itself, pending a reopened window of opportunity at some indeterminate point in the future. 

              Conversely, this emphasis on safeguarding rather than expansion may also require an end to the long-surviving fiction that expressly illiberal states and powers continue to be part of (or a prospective part of) a community of liberal-democratic values. From that perspective, the subversive, reverse-socialising membership of autocratic states like Russia and other ‘illiberals’ in expressly normative, values-centred institutions like the CoE would have to be queried. With the liberal order in crisis, the wisdom of maintaining the membership of clearly anti-liberal states in organisations with the specific aim of supporting and bolstering liberal values – in hope of a Damascene conversion of some sort – appears increasingly counterproductive. Instead of such normative institutions, illiberal states could be engaged with through a redefined OSCE, so-called ‘interstitial institutions’[31] between those of the security community and non-liberal alternatives. For example, the Eurasian Economic Union, or entirely new, ad-hoc frameworks for interaction, that would not require their adherence to democratic norms, but would be limited to a common interest in managing and reducing instability, and reconstructing a ‘thin’ rules-based order adapted to contemporary circumstances.

              Thirdly, this institutional reimagining would also have to question the assumed advantages of economic interdependence. The same inside/outside divide between a to-be-safeguarded liberal security community, and the world beyond would have to be reinforced in the wider European political economy. Within the Western security community, again, introspection would likely have to focus on restoring the legitimacy and effectiveness of existing institutions: there would, for instance, have to be a clear re-examination of the unequal distribution of costs and benefits emanating from the grand projects of the previous decades (the Euro, Schengen), lest they reinvigorate populist opponents of a liberal, integrated Europe. Outside of the ‘democratic circle’, geopolitical considerations and demands for reciprocity would have to play a major role in shaping economic links. Again, policies would have to be flexible – but, especially in the case of illiberal powers like Russia, they would have to more explicitly include costs of dependence and corruption in addition to the hitherto assumed benefits of an often distorted ‘interdependence’ in their calculations. The assumption that unencumbered trade is the norm, and that any diversions from this are ‘sanctions’ would have to be discarded. Outside a narrow circle of trust afforded to fellow liberal states, a collective delineation of interest and security would have to govern, and, if required, limit, economic interaction. In what is no more than the adoption of a stance reciprocal to that seen in statist, illiberal entities like Russia.

              I shall conclude with a few important caveats: the above should be seen as a highly speculative reimagining of wider Europe’s institutional makeup in light of a trend that will probably continue in the 21st century: a move away of international society’s centre of gravity from the liberal West. This will require a commensurate move away from assumptions made in the hegemonic 1990s, when much of the contemporary institutional infrastructure was shaped. In essence, it accepts the transition from the promise of a Kantian wider Europe – based on democracy, institutions, trade – to one that the great scholar of International Relations, Hedley Bull, referred to as ‘Grotian’; a wider Europe where norms and rules interact with power in often messy ways to nevertheless produce a modicum of ‘International Society’.

              The specifics of such a move may turn out different from those touched upon above, but such a Grotian pan-regional order will still, by nature, be far from the heady ideals of ‘Perpetual Peace’ contained in liberal thought. And while many of the institutions that emerged and developed during its heyday will probably survive, they will have to adapt to the more realist logics of a less cosmopolitan age. While such a Kantian system has arguably been established in Western, Central and part of Eastern Europe, it remains elusive in the world beyond: acknowledging this by safeguarding Kantian accomplishments in the core, and toning down one’s ambitions on the outside may be the way forward if the liberal order is to survive, and perhaps revive, in reformed and reinvigorated form.

              While this reinforcement of the Westphalian principle of ‘cuius rex, eius religio’ outside a well-defined liberal security community implies a ‘thinning’ of the institutions outside that core, it also makes the coherence more important: the call for introspection emerges from that concern. Challenges like the Trump presidency, Brexit, populism – all of which will probably reverberate far beyond 2019 – will have to be tackled with the strategic coherence of that core in mind; by addressing the underlying internal factors driving the current societal malaise in the West, including the de-legitimation of domestic political institutions; and a skewed political economy working for a small, privileged minority. Failing that, if the core falls, and centrifugal forces take over, all bets – including those formulated above – will be off.



              Photo by Alexrk2, published under Creative Commons with no changes made.

              [1] Within the context of this paper, ‘liberal’ and ‘liberalism’ refer to the ideologies underlying the global and regional orders established under US hegemony following 1945 and consolidated after 1991; these were defined by Ikenberry as being based on ‘open markets, international institutions, cooperative security, democratic community, progressive change, collective problem solving, shared sovereignty, the rule of law’ – principles also underlying ‘wider Europe’s’ post-Cold war regional order. See: Ikenberry GJ. (2012) Liberal Leviathan: The Origins, Crisis, and Transformation of the American World Order: Princeton University Press.

              [2] NATO. 2019. Cyber Defence [Online]. Brussels: NATO. Available: https://www.nato.int/cps/en/natohq/topics_78170.htm, COUNCIL OF THE EUROPEAN UNION 2017. Council conclusions on the Implementation of the Joint Declaration by the President of the European Council, the President of the European Commission and the Secretary General of the NATO. Brussels: European Union,.

              [3] TEBIN, P. 2018. No Peace – No War: the Future of the Russia-NATO Relationship, Brussels, European Leadership Network, SELIGMAN, L. & GRAMER, R. 2019. What Does the Demise of the INF Treaty Mean for Nuclear Arms Control? Foreign Policy.

              [4] BULLOUGH, O. 2018. How Britain Let Russia Hide Its Dirty Money. The Guardian, 25 May, RYBACKI, P. 2019. Nord Stream 2: Russia’s Geopolitical Trap. Harvard Political Review.

              [5] CSS – ETH ZÜRICH & GENEVA CENTRE FOR THE DEMOCRATIC CONTROL OF ARMED FORCES 2017. Empowering the OSCE in Challenging Times: Reflections and Recommendations. OSCE Focus 2017. Geneva: Geneva Centre for the Democratic Control of Armed Forces.

              [6] DZEHTSIARIOU, K. 6 November 2018. Between a Rock and a Hard Place: The Dilemma of Continuing or Ceasing Russian Membership in the Council of Europe. Verfassungsblog: On Matters Constitutional [Online]. Available from: https://verfassungsblog.de/between-a-rock-and-a-hard-place-the-dilemma-of-continuing-or-ceasing-russian-membership-in-the-council-of-europe/

              [7] IKENBERRY, G. J. 2018. The End of Liberal International Order? International Affairs, 94, 7-23.

              [8] Buzan B and Schouenborg L. (2018) Global International Society: a New Framework for Analysis, Cambridge: Cambridge University Press; Cooley A and Nexon D. (2020, forthcoming) Exit from Hegemony: the Unraveling of the American Global Order, Oxford: Oxford University Press; Walt SM. (2018) The Hell of Good Intentions: America’s Foreign Policy Elite and the Decline of U.S. Primacy, New York: Farrar, Straus and Giroux.

              [9] HABERMAS, J. 1998. The European Nation-State: On the Past and Future of Sovereignty and Citizenship. Public culture, 10, 397-416.

              [10] NICOLAÏDIS, K. 2004. “We, the Peoples of Europe …”. Foreign Affairs, 83, 97-110.

              [11] SAROTTE, M. E. 2019. How to Enlarge NATO: the Debate Inside the Clinton Administration, 1993-95. International Security, 44, 7-41.

              [12] FLOCKHART, T. 2004. ‘Masters and Novices’: Socialization and Social Learning through the NATO Parliamentary Assembly. International Relations, 18, 361-380, MANNERS, I. 2002. Normative Power Europe: A Contradiction in Terms? Journal of Common Market Studies, 40, 235-258, FLOCKHART, T. (ed.) 2005. Socializing Democratic Norms: the Role of International Organizations for the Construction of Europe, Basingstoke: Palgrave.

              [13] JOVANOVIĆ, M. N. 2013. The Economics of European Integration, Cheltenham, Edward Elgar.

              [14] Technical  Assistance to the Commonwealth of  Independent States and Georgia

              [15] EUROPEAN PARLIAMENT. 2019. The Enlargement of the Union [Online]. Brussels: European Parliament. Available: https://www.europarl.europa.eu/factsheets/en/sheet/167/the-enlargement-of-the-union, EUROPEAN COMMISSION 2007. Communication from the Commission: A Strong European Neighbourhood Policy. Brussels: European Union

              [16] WEEDE, E. 2004. The Diffusion of Prosperity and Peace by Globalization. The Independent Review, 9, 165-186, PLATTNER, M. F. & SMOLAR, A. (eds.) 2000. Globalization, Power, and Democracy, Baltimore: Johns Hopkins University Press.

              [17] BURAS, P. 2018. Poland, Hungary, and the Slipping Façade of Democracy [Online]. London: ECFR. Available: https://www.ecfr.eu/article/commentary_poland_hungary_slipping_facade_of_democracy, MCCOY, J., RAHMAN, T. & SOMER, M. 2018. Polarization and the global crisis of democracy: Common patterns, dynamics, and pernicious consequences for democratic polities. American Behavioral Scientist, 62, 16-42.

              [18] HUTCHESON, D. & KOROSTELEVA, E. A. (eds.) 2017. The Quality of Democracy in Post-Communist Europe, London: Routledge.

              [19] The importance of these shared norms is pointed at by constructivist explanations of the ‘democratic peace’, including: RISSE-KAPPEN, T. 1995. Democratic Peace – Warlike Democracies: A Social Constructivist Interpretation of the Liberal Argument. European Journal of International Relations, 1, 491-517, OWEN, J. M. 1994. How Liberalism Produces Democratic Peace. International Security, 19, 87-125.

              [20] SØRENSEN, G. 2016. Cultural Challenges to the Liberal World Order. In: BÖSS, M. (ed.) Bringing Culture Back In: Human Security and Social Trust. Aarhus: Aarhus University Press.

              [21] HUG, A. (ed.) 2016. Institutionally Blind? International Organisations and Human Rights Abuses in the Former Soviet Union, London: Foreign Policy Centre.

              [22] ROBINSON, T. & SMITH, B. 2018. Russia and the Council fof Europe. London: House of Commons Library.

              [23] GOWAN, R. 2018. Muddling Through to 2030: The Long Decline of International Security Cooperation [Online]. New York: United Nations University. Available: https://cpr.unu.edu/muddling-through-to-2030-the-long-decline-of-international-security-cooperation.html, FOROUGHI, P. & MUKHTOROVA, U. 2017. Helsinki’s Counterintuitive Effect? OSCE/ODIHR’s Election Observation Missions and Solidification of Virtual Democracy in Post-Communist Central Asia: the Case of Tajikistan, 2000–2013. Central Asian Survey, 36, 373-390.

              [24] SAROTTE, M. E. 2019. How to Enlarge NATO: the Debate Inside the Clinton Administration, 1993-95. International Security, 44, 7-41, MARTEN, K. 2017. Reconsidering NATO Expansion: a Counterfactual Analysis of Russia and the West in the 1990s. European Journal of International Security, 3, 135-161.

              [25] DE ANGELIS, G. 2017. Political Legitimacy and the European Crisis: Analysis of a Faltering Project. European Politics and Society, 18, 291-300.

              [26] BARTHOLOMEUSZ, J. 2017. Juncker’s White Paper Has the Answers – and That is the Great Tragedy [Online]. Brussels: Heinrich Böll Stiftung. Available: https://eu.boell.org/en/2017/03/23/junckers-white-paper-has-answers-and-great-tragedy

              [27] POPŁAVSKI, K. 2016. German Energy Companies Lobby for Nord Stream 2 [Online]. Warsaw: OSW. Available: https://www.osw.waw.pl/en/publikacje/analyses/2016-09-21/german-energy-companies-lobby-nord-stream-2, S.N. 2018. The Government May Want Oligarchs Out but It Can’t Bank on City Sanctions. The Guardian, 15 April.

              [28] DEMPSEY, J. 2018. NATO’s Relevance [Online]. Brussels: Carnegie Europe. Available: https://carnegieeurope.eu/strategiceurope/76774

              [29] Union of Soviet Socialist Republics

              [30] FURNESS, M. & SCHÄFER, I. 2015. The 2015 European Neighbourhood Policy Review: More Realism, Less Ambition. Bonn: German Development Institute.

              [31] THE GB TEAM. 2019. Considerations on Global Governance [Online]. Global Brief. Available: https://globalbrief.ca/2019/08/considerations-on-international-governance-2-0/

              Footnotes
                Related Articles

                FPC Briefing: In Defence of Multilateralism

                Article by Helen Goodman MP

                July 25, 2019

                FPC Briefing: In Defence of Multilateralism

                Brexit is an attempt to tackle domestic problems by altering our relationship with our European neighbours. Some feel that this is doomed to fail because our economy and security is so integrated with our neighbours and we should therefore concentrate on avoiding it or getting the least-worst option while tackling with renewed vigour the discontents – about housing, unstable jobs and incomes, and rapid cultural change which brought this populist wave. Others believe that through the projection of a ‘Global Britain’ we can rebuild our prestige and renew our international relationships. But what if the domestic discontents are part of the unfolding of international developments?

                After all, Britain is not the only European country facing tough economic competition from the Far East; or large-scale immigration; or the pressure on its youth from an apparently ungovernable internet and social media. And if this is the case, what does it mean for the way we conduct our foreign policy?

                This essay aims to look at three things: the nature of the modern world, what we want to achieve in it and thirdly at the levers we can pull and the resources we can bring to bear to achieve our aims.

                The Modern World

                Interconnectedness beyond national boundaries is not a new phenomenon. Once England was part of the Roman Empire, then we were ruled from Scandinavia; even as the Kingdom united and grew we were part of the Roman Catholic Church. Later we became a phenomenally successful trading nation with an Empire which stretched across the globe bringing cultural as well as financial exchange.

                Perhaps unsurprisingly, the proportion of our economy which is traded remained constant between 1900 and 2000. In 1900 exports constituted 24.9 per cent of the economy and in 2000 it was back at 24.9 per cent. But the degree of interconnectedness today seems far more immediate and intense – at the click of a button we can be in touch with people thousands of miles away; huge movements of people flow – some motivated by economic opportunities, others forced by war, desperation and climate change.

                We in the UK are fortunate for the last 75 years to have lived in a largely peaceful and prosperous environment. This is frequently attributed to the very successful institution-building in the immediate aftermath of the Second World War (WWII), in which we played a significant part: the United Nations (UN), the UN Declaration of Human Rights, North Atlantic Treaty Organisation (NATO) and the economic institutions – the International Monetary Fund (IMF) (to which we had recourse ourselves in 1976), the World Bank, the General Agreement on Tariffs and Trade(GATT) which developed into the World Trade Organisation (WTO) – and, of course, the European Union (EU).

                One of the high points in this period came on 9th November 1989. I can remember watching the TV coverage of the crowds breaking the Berlin Wall and writing in my diary – “this is the most important day of my life.” Those were heady days, to be young was very heaven. It felt like the completion of the liberation of May 1945. The bipolar world and the threat of nuclear war, which that had meant, was lifted. We were certain we could be safer, and some of us on the Left looked forward optimistically to the development of new economic models, negotiating a path that would take seriously the Eastern European commitment to equality and the West’s enterprise and openness. Russia was invited to the G7 meetings in London. We discussed the possibility of using co-ops and the Yugoslav model.

                However Yugoslavia was the first country in the 1990s to collapse in a bloody and violent war; refugees from its horrors began arriving in London and we were shaken from our optimism.

                The political right claimed victory – market liberalism was declared to be the both the cause and the destination of this new world – the alpha and the omega – even in China Deng Xiaoping was following its tenets.

                Again, of course, their confidence was overblown. The rise of religious fundamentalism – of Islam as a political force in the Middle East and Christian Evangelicals in the US – pushed back against the idea or possibility of one totalising ideology.

                The advent of climate change and the collapse of the markets in 2008 show both that we have not achieved a secure and sustainable way of life and that developments across the globe affect our day to day lives. Badly regulated US mortgage markets means queues outside Northern Rock; the destruction of the Amazon rainforest brings floods in Cumbria.

                Following the Brexit vote, there has been a lot of soul searching about the failures of domestic policy – why were those outside the major cities feeling particularly disempowered? Why were some of those with the most to lose from rupturing economic relationships with Europe amongst some of the most inclined to vote Leave? But not so much attention has been paid to international policy.

                The fact is that the world in 2019 is not as it was in 1945 – or indeed 1913 or 1989. Yes, we are not in a bipolar world, but nor are we in a world which can be dominated by the Americans.

                The biggest international story is the rise of China. Forty years ago, China was a struggling middle-sized power with a poor, inefficient and stagnant economy. Since the implementation of major economic reforms in 1979, it has experienced a staggering economic transformation. According to the World Bank, China’s Gross Domestic Product (GDP) growth has averaged nearly 10 per cent a year—the fastest sustained expansion by a major economy in history.[1] It is now the world’s second largest economy as measured by nominal GDP and has established itself as a geopolitical superpower.  

                The other big story is the emergence of the other BRICS (Brazil, Russia, India, China and South Africa). First conceived of in 2001 by Goldman Sachs during an economic forecasting exercise, the BRICS together contain three billion people – over one third of the world’s population – and account for between 25-30 per cent of global GDP.[2]  The grouping has evolved from a popular concept to a formal grouping – holding their first summit in 2009 – and present a direct challenge to the hegemony of the G7 nations.  

                Progress on human well-being paints a mixed picture. On the one hand, we have seen a discernible improvement in people’s lives over the past three decades. According to the UN Development Programme (UNDP) data, between 1990 and 2017 nearly every country in the world (with a few notable exceptions, such as Syria and Yemen) has seen a net increase in their Human Development Index (HDI) scores and life expectancy.[3] World Bank Data also indicates a continued (albeit slowing) decrease in poverty levels, with the percentage of people living in extreme poverty globally falling to a new low of 10 per cent in 2015.[4]

                On the other hand, there is plenty to overshadow this progress. According to the UNHCR, the UN Refugee Agency, the number of people fleeing war, persecution and conflict exceeded 70 million in 2018.[5] This is the highest level that UNHCR has seen in its almost 70 years. There is also still plenty to be done on human rights and democracy. The Universal Declaration of Human Rights turned 70 in 2018, yet in the past two years alone, we have seen nearly 700,000 Rohingya Muslims forced to flee state oppression in Myanmar, over one million Uighur Muslims detained in re-education camps in Xinjiang and over 300 human rights defenders have been murdered.[6] According to Freedom House, 37 per cent of the world’s population live in countries categorised as ‘not free’, and out of a possible score of 100, two thirds of countries scored less than 50 on the Corruption Perception Index (CPI).[7]

                Britain may have thefifth largest economy today, but the inexorable rise of the emerging economies with larger populations could see us drop down to 10th in 2050, behind Indonesia and Mexico.[8] This is simply not under our control. This is not to say we cannot adopt both domestic and foreign policy stances which are positive and constructive – we can. But as the psychotherapists say: the art of growing up is coming to terms with the world as it is, not as we would like it to be.

                These big prospective changes also explain why countries beyond the victors of the Second World War are discontent with the governance arrangements of the existing institutions – why, for example, China set up the Asian Infrastructure Investment Bank to rival the International Bank for Reconstruction and Development (IBRD- part of the World Bank Group) and why there are calls to expand the UN Security Council.

                But it’s not just a question of whether the right people are sitting at the table. An even bigger question is whether we have the right institutions tackling the right problems.

                The Bretton Woods institutions were far sighted and strong, but they were established to tackle the world’s problems in 1945 and as we have seen, these are changing. Let me give some examples: the internet; climate change; the impact transnational corporations have on human rights; drugs; migration and the rights of refugees.

                We are often enjoined to defend the rules-based international order and explain its benefits and virtues. This is usually in response to a populist attack from President Donald Trump. President Trump is particularly irritating, because he is good at identifying actual weaknesses – Chinese theft of intellectual property or European countries’ failure to pay a fair share of NATO costs – which no one can deny, while at the same time proposing solutions which are totally counterproductive: a trade war or US disengagement from a shared defence alliance.

                So it is true that the UN has been much stronger than the League of Nations in providing a forum for resolving disputes peacefully and that the WTO has, up until now, prevented the ‘beggar thy neighbour’ policies which dogged economies in the 1930s, but it’s also true that big issues like how to govern the internet and tackle climate change effectively have not been cracked. And that, especially post-2008, a sense of insecurity has brought to the fore strong men – Trump, Putin and Ji and right-wing populists – Matteo Salvini and Viktor Orban whose proposals are to build up walls, whether physical, legal or metaphorical, against outsiders.

                Brexit is our own special national brand of populism. This then is the hostile environment in which we are seeking to tackle our problems.

                What do we want to achieve in our Foreign Policy?

                Citizens regard the first duty of government as being to provide security and stability. This does not of course mean that foreign policy needs to be an exercise in crude nationalism such as ‘America First.’ There is a huge appetite for policies which bring security and stability but are also socially responsible.

                Two points are worth making here. Firstly, security and social responsibility are not necessarily in conflict. We can afford to spend two per cent of our national income on defence and 0.7 per cent on overseas aid; we can share our intelligence resources with our NATO allies and run a BBC World Service which broadcasts truthful fact-based news into closed countries like North Korea. We can do both. Secondly – and it flows from this socially responsible policy framework – promoting development and tackling climate change effectively will increase our security, because they will increase the security of others and promote a shared worldview.

                Emily Thornberry spoke at length about this to the Institute for Government recently: “[We should] champion certain values as well as commercial interests” and “by putting values back at the heart of our diplomacy [we will] help to transform what Britain is seen to stand for as a country.”

                And Jeremy Corbyn has said “Labour will speak for democratic values and human rights” and “will be driven by progressive values and international solidarity”[9]

                Whatever the rights or wrongs of the misadventure of Iraq – it clearly did not make the British people more secure.

                So we want to pursue security, stability and social responsibility.

                The prime security alliance the UK enjoys is through NATO – itself based on shared interests and values.

                Key to this for us has been the US-UK ‘special relationship’, and this has been put under considerable pressure lately. Firstly by revulsion among the public at the aftermath of the Iraq War; then by the election of Trump who seems to embody most of what the British Left dislikes about the US and little of what it does like, and finally by Brexit – which potentially means that when the US want to contact Europe the first phone they ring is no longer going to be the one in King Charles Street.

                What this tells us is not that we no longer share objective interests with the US or that our strong cultural and historic ties are worthless – but that, perhaps like a marriage that’s gone through a bad patch, the relationship needs a bit of work. It’s not going to be what it was, so we need to find a new balance. An interesting study recently published by the UN Association[10] looking at international perceptions of the UK found that a relationship in which the two countries are seen as too close reduces our prestige. If we merely follow the US – there’s no point in anyone asking for our help in influencing them.

                Labour is committed to NATO membership and the two per cent and this essay is not about defence policy but refashioning the relationship so it is positive without being subservient on trade (chlorinated chicken) or culture (our children shouldn’t be exposed to bad cartoons. Britain has much higher standards for children’s television than the US, with less violence and more rounded and diverse characters. The US film moguls would like to swamp our TV stations). This is not about Brexit, but it is worth noting that the current government as part of its Brexit preparations has increased the number of diplomatic positions in European countries by 50.

                This of course is part of a more general re-focussing which will be required if we leave the EU. An assessment and review of the impact and significance of the change means working that bit harder to be heard elsewhere.

                Individual bilateral relationships matter. But I hope just two examples will illustrate that alone they cannot deliver our aims.

                China is a global power and as we have noted it is growing rapidly. But the truth is we are conflicted. We want and need the trading opportunities offered, this will help our economic stability, but this is tempered by our concerns over Chinese political culture and human rights record. We look for opportunities to co-operate – like climate change – but sometimes the conflicts become sharp – as when we look at developments in Hong Kong or investment from Huawei. These bring into relief, as it were, the dilemma. Could we hope to persuade the Chinese that if they are to move from global power to global leadership, they need to adopt more liberal global norms?

                Simply to pose the questions is to invite a negative answer. Britain is no longer big enough to effect major change through a series of bilateral relationships. This may even be true with small and middle-sized countries like say Vietnam. Relatively speaking, we may have more leverage, but they too are tied in to regional organisations and power structures – Associate of South East Asian Nations (ASEAN) and China in the case of Vietnam.

                In other words, given the UK’s place in the world the way to make Britain safer and more stable is to contribute to the development of a safer and more secure international environment through the introduction of new norms, better international legal frameworks and institutions which do tackle at source underlying causes of power imbalances.

                Furthermore, this is not just a question of relations between nation states: it is also about preventing a big beast jungle where private actors – banks, new technology firms, extractive industries –  ride roughshod over countries and their citizens.

                It is important to have a positive and proactive stance in order to avoid foreign policy descending into endlessly reactive crisis management.

                What are the levers we can pull and the resources we can bring to bear to achieve our aims?

                The UK has significant resources – it is the fifth largest economy in the world. Our ranking is projected to fall to 10th in 2050, but we’ll still be a wealthy country in the top quartile.

                We have considerable military strength. The UK has the largest military budget in the EU, has a navy bigger than the French, Italian and German Navies combined – and possesses the fifth largest military stockpile of nuclear warheads.[11] There is an argument to be had about whether we devote too much or too little resource to our military and what the balance should be between conventional, nuclear and cyber resources. For the purposes of this analysis I am going to assume a steady state.

                Our soft power is remarkable, and our history has given us positional power in key institutions: permanent member of the UN Security Council; executive directorships in the IMF and IBRD; a key role for the Governor of the Bank of England in the Bank for International Settlements.

                We also have strong alliances through NATO and the Anglosphere. The Joint Intelligence Committee (on which I served in humble capacity as a junior civil servant during the 1983 Iran-Iraq War) still relies on shared intelligence with the United States, Canada, New Zealand, Australia and the UK.

                Perhaps the most important is the English language – spoken by approximately 20 per cent of the world’s population.[12] World class universities such as Oxford, Cambridge and the London universities attract students from across the world. The UK has renowned cultural resources and media influence through the BBC World Service.

                Under Labour, some sources of soft power were enhanced significantly and consequently we are well respected for our overseas aid programme, our debt forgiveness initiative and climate change leadership. We have a large and highly regarded diplomatic service, the power of connectivity and the network of Commonwealth nations.

                But our history is also a liability. Almost every former colony has resentments as well as warm memories. The tension between this chequered colonial past and how we move beyond it is played out in unusual context: the Commonwealth.

                For some, the Commonwealth will never be able to shake off its colonial roots and is therefore dismissed as a relic that is not fit for modern times. Others see such criticism as unfair and argue that the Commonwealth is a very different institution to what it was in the 1970s. The Commonwealth gives us an opportunity to express what Lord Rickets called “convening power”[13]. The Commonwealth consists of 53 countries and contains 2.4 billion people[14] – one third of the earth’s population – of which more than 60 per cent are under the age of 29. As of 2017, the combined GDP of the Commonwealth was US$10.4 trillion and bilateral intra-Commonwealth trading costs are on average 19 per cent less than those between non-member countries.[15] The Commonwealth boasts five G20 economies (Australia, Canada, India, South Africa and the UK) and four out of five of the Five Eyes intelligence alliance are Commonwealth Members (Australia, New Zealand, Canada and the UK). And of course, members of the Commonwealth club also populate the other major international institutions, such as the UN General Assembly.

                The Commonwealth Charter lists human rights, international peace and security, democracy, sustainable development and gender equality as among its core values. While it certainly has its limitations and baggage, if approached as an equal and voluntary association of states rather than a post-colonial toy, the Commonwealth’s vast network and sheer size can act an important network within which we can build progressive alliances and networks.

                Conclusion 

                In this environment, the idea of Global Britain – a Britain reaching out across the world to influence events seems to be a throwback to the 1950s – an idea constructed on the fantasy of England as a seafaring nation almost entirely for the backward-looking domestic audience whose support the Government fears losing to Nigel Farage.

                Instead I think we should start a grown-up discussion about the modernisation of international institutions to tackle 21st Century problems. These are inherently shared and they are not amenable to national solutions. The current framework is biased towards protecting free trade and financial investments at the expense of people and the environment.

                These are the items I would put at the top of the agenda:

                • Strengthening the legal obligations on nation states to meet the Climate Change objective of temperature rise limited to two degrees Celsius and – critically – making trade obligations in the WTO subservient to this, rather than as at present having a ‘trade override’. 
                • Introducing a clear international legal framework for internet governance. Currently the free for all resembles the 16th Century law of the sea as pirates abound – there are no shared controls on terrorism, child protection, IP or tax and as more and more economic activity moves to the web more and more human activity takes place in an anarchic value free vacuum.
                • Tackling financial crime; money laundering; tax evasion; bribery and corruption needs more than the current voluntary approach as exemplified by the Organisation for Economic Co-operation and Development (OECD) codes
                • Strengthening the enforcement mechanisms of the International Labour Organisation (ILO) and Human Rights Council and introducing new norms for the protection of migrants.
                • Introducing a UN Binding Treaty of Human Rights and Transnational Corporations. This would go further than Prime Minister May’s – very welcome – initiative on modern slavery and protect the rights of indigenous people whose land is stolen and exploited, with recourse to an international tribunal. This could also provide for environmental protection.

                Building international institutions takes time and it is a shared enterprise. But we should be inspired by the example of those who went to Bretton Woods in 1944 before WWII was over. It is never too soon to begin. Let us not leave it until it’s too late.


                The views expressed in this essay are those of the author and do not necessarily reflect the views or position of the Foreign Policy Centre. The essay was developed from a speech given at the In Defence of Multilateralism event with Helen Goodman MP, Lord Ricketts, Dr Marina Prentoulis and Steve Bloomfield. This was part of an occasional series exploring Britain’s role in the world and follows on from the Global Britain: Myths, Reality and Post-Brexit Foreign Policy  event with Rt Hon John Whittingdale MP, Dr Judi Atkins, Dr Andrew Glencross and Henry Mance earlier this year.


                Photo by Rob, published under Creative Commons with changes made.

                [1] The World Bank, The World Bank in China, April 2019, https://www.worldbank.org/en/country/china/overview#1

                [2] Agencies, 10 facts about BRICS, South China Morning Post, September 2017, https://www.scmp.com/news/world/article/2109490/10-facts-about-brics

                [3] Human Development Reports, Human Development Data (1990-2017), UNDP, http://hdr.undp.org/en/data#

                [4] The World Bank, Decline of Global Extreme Poverty Continues but Has Slowed: World Bank, September 2018, https://www.worldbank.org/en/news/press-release/2018/09/19/decline-of-global-extreme-poverty-continues-but-has-slowed-world-bank

                [5] UNHCR UK, Worldwide displacement tops 70 million, UN Refugee Chief urges greater solidarity in response, June 2019, https://www.unhcr.org/uk/news/press/2019/6/5d03b22b4/worldwide-displacement-tops-70-million-un-refugee-chief-urges-greater-solidarity.html

                [6] Amnesty International, Amnesty International Annual Report 2017/18, https://www.amnesty.org/en/latest/research/2018/02/annual-report-201718/

                [7] Transparency International, Corruption weakens democracy, January 2019, https://www.transparency.org/news/feature/cpi_2018_global_analysis

                [8] PwC, The World in 2050 – The Long View: How will the global economic order change by 2050?, https://www.pwc.com/gx/en/issues/economy/the-world-in-2050.html

                [9] BBC Politics, Jeremy Corbyn: Labour leader’s speech, BBC, September 2018, https://www.bbc.co.uk/news/live/uk-politics-45653499

                [10] Jess Gifkins, Samuel Jarvis and Jason Ralph, ‘Global Britain in the United Nations’ (United Nations Association-UK, 2019)

                [11] Hans M. Kristensen and Matt Korda, Status of World Nuclear Forces, Federation of American scientists, May 2019, https://fas.org/issues/nuclear-weapons/status-world-nuclear-forces/

                [12] Dylan Lyons, How Many People Speak English, And Where Is It Spoken?, Babbel Magazine, July 2017, https://www.babbel.com/en/magazine/how-many-people-speak-english-and-where-is-it-spoken/

                [13] The Foreign Policy Centre, In Defence of Multilateralism, SoundCloud, July 2019, https://soundcloud.com/foreign-policy-centre/in-defence-of-multilateralism

                [14] Commonwealth Secretariat, Fast Facts on the Commonwealth, The Commonwealth, February 2019, http://thecommonwealth.org/fastfacts

                [15] Ibid.

                Footnotes
                  Related Articles

                  Seizure of Stena Imperio by Iran raises questions about legality of Gibraltar’s detention of Grace 1

                  Article by Michelle Linderman

                  July 23, 2019

                  Seizure of Stena Imperio by Iran raises questions about legality of Gibraltar’s detention of Grace 1

                  The seizure of U.K. flagged tanker Stena Imperio by the Iranian Revolutionary Guard Corps in the Strait of Hormuz in apparent retaliation for Gibraltar’s detention of Grace 1 has unsurprisingly given rise to considerable press reaction. A recurrent theme in news reports is whether the action taken by Gibraltar was legal. Some press reports suggest that the Governments of Gibraltar and the UK were lured into action by the US and have been co-opted into supporting President Trump’s desire to put further pressure on Iran’s economy by squeezing Iranian oil exports. While it may be the case that the US provided the intelligence about the movements and cargo of Grace 1, the Government of Gibraltar was quick to state that there had been “no political request at any time from any Government” to act and that the detention was made “as a direct result only of the Government having reasonable grounds to believe that the vessel was acting in breach of established EU sanctions against Syria”.[1]

                  So was the detention of Grace 1 legal?

                  There has been a suggestion that the detention was not legal because the vessel was not owned or controlled by EU persons and because the EU doesn’t impose its sanctions on others outside the Union. However, a closer look at the legislation involved shows that there was a legal basis for the detention and that the origins of that legislation were put in place as early as March this year.

                  First, in March 2019 Gibraltar enacted the Sanctions Act 2019. That Act provides at Article 6(1) for the automatic recognition and enforcement of ‘international sanctions’. ‘International sanctions’ is defined to include, amongst others, UN sanctions; EU sanctions; and, various restrictive measures imposed by UK.[2] It was intended, according to a newsletter published by The National Coordinator for Anti-Money Laundering and the Combatting of Terrorist Financing of the Government of Gibraltar in April 2019, to ensure that any restrictive measures imposed by both the EU and UK will have effect without the need for further implementing legislation and specifically refers to restrictive measures that may be imposed by the UK under the Sanctions and Anti-Money Laundering Act 2018 .[3]

                  Subsequently on the 3rd July Gibraltar published the Sanctions Regulations 2019 which specifically give power to the Chief Minister, under Article 5(3) (a), to designate a ship as a ‘Specified Ship’ and to then detain it where the Chief Minister ‘has reasonable grounds to suspect that the ship he has designated in the Notice as a Specified Ship is, has been, or is likely to be, involved in a breach of the EU Regulation…..’.[4] The EU Regulation in question is defined to be EU Regulation No. 36 of 2012 as amended (the ‘EU Syrian sanctions’) which sets out the EU’s restrictive measures against Syria.[5]

                  Pursuant to EU Syrian Sanctions a number of Syrian persons and entities were listed as designated including, Baniyas Refinery in Syria which was listed in 2014. The intelligence provided to the Government of Gibraltar indicated that Grace 1 was heading to Baniyas Refinery with a full cargo of oil.

                  The next question that arises is on what basis it can be said that the EU sanctions would have been breached where there was no obvious EU connection in terms of the vessel’s owners or flag state? The answer to that can be found in the EU Syrian sanctions which, like most EU restrictive measures, sets out their scope.

                  The EU Syrian sanctions apply: [6]

                  (a) within the territory of the Union, including its airspace;
                  (b) on board any aircraft or vessel under the jurisdiction of a Member State;
                  (c) to any natural person inside or outside the territory of the Union who is a national of a Member State;
                  (d) to any legal person, entity or body, inside or outside the territory of the Union, which is incorporated or constituted under the law of a Member State;
                  (e) to any legal person, entity or body in respect of any business done in whole or in part within the Union.

                  While the precise background to the detention has not been explained by the Government of Gibraltar, subsection (e) is very broad. It applies to ‘any person, entity or body’. There is no requirement here that it must be an EU person or entity. It applies ‘in respect of any business’, again this is very wide – shipment of goods is no doubt a type of business that is covered. Finally, it applies where that business is ‘done in whole or in part within the Union’ and as such, a shipment carrying goods to a designated entity would only have to pass through EU waters to be caught. Against this background, Grace 1 loaded with cargo on her way to a designated refinery in Syria would fall within EU sanctions jurisdiction once she entered EU waters.

                  Under the Sanctions Regulations 2019 a Specified Ship ‘must be detained if it is in BGTW (British Gibralter Territorial Waters);’ and ‘may not leave BGTW unless permitted to do so by an order of the court or where the notice designating the ship as a Specified Ship has been revoked’. It would therefore appear that there was a legal basis for the detention and the Sanctions Regulations 2019 specifically give the Government of Gibraltar power to detain vessels suspected of being involved, or likely to be involved, in breaching the EU Syrian sanctions.

                  The power to detain vessels given by the Gibraltarian regulations are in contrast to the usual penalties applicable for a breach of EU sanctions. Pursuant to the EU Syrian sanctions, each Member State is required to lay down the penalties that are applicable for breach of the restrictive measures which must be “effective, proportionate and dissuasive”. The penalties vary from Member State to Member State. In the UK, there is a civil penalty regime administered by the UK Treasury’s Office of Financial Sanctions Implementation (OFSI) that gives a scale of penalties of up to £1 million or 50% of the breach, whichever is higher and/or there can be criminal fines or imprisonment. There is currently no power under the UK’s (or other Member States’) Syrian sanctions implementing legislation to detain vessels, however, the UK’s Sanctions and Anti-Money Laundering Act which was passed in May 2018 gave the UK Government power to make sanctions regulations including shipping sanctions.[7] Pursuant to that Act, the UK’s Syrian (Sanctions)(EU Exit) Regulations 2019 were laid before Parliament on 5 April which will take effect after the UK leaves the EU will give power to maritime enforcement officers in certain circumstances to stop and board a ship if the officer has ‘reasonable grounds to suspect that a relevant ship is carrying prohibited goods or relevant goods’.[8]

                  The crew of Stena Imperio and their families will take little comfort from the fact that there appears to have been a legal basis for the detention of Grace 1. They and many others will no doubt continue to question the political decision-making that lead to the detention given the inherent risk it posed to UK shipping.

                  Michelle Linderman is a partner at Crowell & Moring’s International Trade Group, in the firm’s London office. An English qualified solicitor with over 20 years of experience, Michelle advises clients – such as international businesses, traders, ship owners, charterers, insurers, financial institutions, and energy companies – on U.K.-specific and cross-border sanctions, including matters that concern national and international trade and financial sanctions. Before joining Crowell & Moring, Michelle was a partner and the Global Head of Sanctions at Ince & Co’s London office. She was seconded to Ince & Co’s Hong Kong office from 2001 to 2004.

                  [1] Rock Radio, Chief Minister’s statement to Parliament regarding Grace 1, July 2019, https://www.rockradio.gi/local/local-news/chief-ministers-statement-to-parliament-regarding-grace-1/

                  [2] Gibraltar Laws, Sanctions Act 2019, March 2019, https://www.gibraltarlaws.gov.gi/articles/2019-06o.pdf

                  [3] Newsletter of The National Coordinator for Anti-Money Laundering and the Combatting of Terrorist Financing of the Government of Gibraltar, April 2019, http://www.gfsc.gi/uploads/NCO%20Sanctions%20Act%202019%20Newsletter.pdf

                  [4] Gibraltar Laws, Sanctions Regulations 2019, July 2019, https://www.gibraltarlaws.gov.gi/articles/2019s131.pdf

                  [5] Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011, Official Journal of the European Union, https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:016:0001:0032:EN:PDF

                  [6] Ibid. [See Article 35]

                  [7] UK Government, The Syria (Sanctions) (EU Exit) Regulations 2019, http://www.legislation.gov.uk/uksi/2019/792/regulation/90/made

                  [8] Ibid.

                  Footnotes
                    Related Articles

                    Spotlight on Turkmenistan: Executive Summary

                    Article by Adam Hug

                    July 12, 2019

                    Spotlight on Turkmenistan: Executive Summary

                    Turkmenistan is a country often overlooked on the world stage. When attention is paid the focus tends to be either on the size of its bountiful gas reserves or on the eccentricities of its leadership. This research however shines a spotlight on a country in the middle of a sustained economic crisis that has seen hyper-inflation in the lives of ordinary people and widespread food shortages. This economic crisis has in turn led to the regime’s repression becoming ever tighter and its personality cult becoming ever more grandiose. 

                    While investors may be initially attracted to Turkmenistan due to its enormous gas wealth it has huge structural challenges. It is a ‘Potemkin economy’, with marble facades, respectable official gross domestic product (GDP) figures and tightly regulated state shops, which mask a huge and chaotic black economy. Potential investor risks include: the whims of the President, leading to arbitrary behaviour by a sclerotic bureaucracy; a high risk of non-payment for goods or services; endemic corruption; insecurity of legal title or contracts; the lack of rule of law and independent judiciary; and reputational risks from being associated with severe human rights abuses.

                    This research documents the vast range of Turkmenistan’s human rights abuses but draws particular focus to the issues of forced labour, ‘disappeared’ activists in the prison system and restrictions on independent journalists and human rights activists. While exerting international pressure on the regime is hard, the publication argues that the current economic turmoil creates new opportunities to leverage engagement and investment for vital reform on a ‘more for more’ and ‘less for less’ basis.

                    Given the human rights crisis the research argues that the European Union (EU) should adopt the European Parliament’s proposed human rights benchmarks for Turkmenistan and that these principles should be applied by all international institutions working with Turkmenistan. It suggests that the United Kingdom (UK) should reconsider the position of Prime Ministerial Trade Envoy to Turkmenistan and whether it should be expending political capital on promoting trade ties through the Turkmenistan-UK Trade & Industry Council (TUKTIC). It also argues that the European Bank for Reconstruction and Development (EBRD) should not expand its lending in Turkmenistan, avoiding expansion to the public sector or state enterprises. The international community should push for a strongly mandated International Labour Organisation (ILO) presence to map, monitor and reduce the extent of forced labour. Pressure must be placed on Turkmenistan to abide by its UN and international investment treaties, and to allow greater access to UN Special Rapporteurs and international NGOs.

                    Key recommendations to the Government of Turkmenistan:

                    • Notify all families about the condition of their imprisoned loved ones and allow visitor access
                    • Free political prisoners and jailed journalists
                    • Improve prison conditions and end the use of torture in the detention system
                    • End forced labour in the cotton harvest
                    • Allow access by UN Special Rapporteurs and other UN mandate holders, as well as visas for representatives of international non-governmental organisations (NGOs)
                    • Enhance judicial independence in the criminal and commercial sector, while honouring its international treaty obligations  

                    Recommendations to the international community:

                    • Ensure the EU adopts and applies the European Parliament human rights benchmarks
                    • Require the EBRD’s lending to Turkmenistan to reflect the need to improve human rights and avoids expansion to the public sector in the absence of genuine reforms
                    • Push for the presence of the ILO with a strong mandate to tackle forced labour
                    • Reconsider international trade promotion efforts to Turkmenistan, such as the UK’s TUKTIC

                    Photo by David Lundberg, published under Creative Commons with no changes made.

                    Footnotes
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