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Human rights behind unsettled borders

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

September 26, 2019

Human rights behind unsettled borders

Who is accountable for human rights violations in de facto states? The de facto authorities, the patron or the parent state? Regardless of the answers to that question, there is great potential for journalists, lawyers and activists to contribute to improving the human rights situation of ordinary people living there ─ especially if they join forces.

After the initial military conflicts ended in the disputed territories of Abkhazia, Transnistria, South Ossetia and Nagorno Karabakh, a form of quasi-legal order emerged. Government-like institutions were established; schools, health care, social institutions, courts and mass media. The remaining populations may be politically disoriented but continue to live in accordance with their customs and traditions and try to make the best out of often-difficult situations.

Squeezed between conflicting states, de facto states are often abandoned by international governmental and non-governmental organisations (NGOs). However, there are nevertheless some independent civil society groups being active, in particular in Abkhazia and Nagorno-Karabakh, despite the obstacles. It is not easy, for instance, to protect human rights without proper legal frameworks. Solving cases by urging de facto officials to comply with international norms or complaining to international human rights bodies will often not be effective.

This vacuum-like situation for the protection of human rights in de facto states should nevertheless not deter human rights work. We argue in this essay that cooperation between journalists, lawyers and human rights activists still may function as a catalyst of improving the situation of ordinary people.

For clarity of terminology, we refer to ‘de facto states’, ‘de facto regimes’, and ‘self-proclaimed territories’ (according to the terminology of the European Court of Human Rights (ECtHR)[1]) in reference to regimes that stand outside of the international order of recognised statehood, such as Abkhazia, Transnistria, South Ossetia, Nagorno Karabakh, and Northern Cyprus.

The term ‘parent state’ refers to the states which according to international law has recognised jurisdiction over the territories (the Metropolitan state, meaning Georgia, Moldova, Azerbaijan, and Cyprus) and ‘patron states’ for states that support de facto states politically, economically and militarily (such as Russia, Armenia, and Turkey).

There are obviously significant differences between de facto states in terms of their economic, social and security situation. In this essay, we will not go into details about such differences. Instead, the first part examines some of the main common challenges of protecting human rights in such territories. The second part analyses some of the key cases adjudicated by the ECtHR with the aim of finding an international position on who is responsible for human rights violations in de facto states. The final part focuses on the work of domestic civil society in co-operation with international human rights organisations. From this review, we aim to draw some conclusions about how international civil society could play a more prominent role in enhancing the human rights of individuals living in de facto states.

Protecting human rights

The emergence of new regimes raises the issue of statehood and international recognition. Violent conflict and violations of basic principles of international law results in de facto regimes not being accepted in the conventional club of states due to a lack of international recognition. They are placed in ‘a state of limbo’.[2]

The situations in Abkhazia, Transnistria, South Ossetia and Nagorno-Karabakh are often described as frozen or protracted conflicts.[3] This refers to a situation where the armed phase of the conflict has ended or is reduced[4] but without peace being established.[5] The result is a situation where an emerging regime is not recognised by the international community, cannot become a member of international organisations and lacks external sovereignty.[6]

Being locked in such a situation and constantly seeking international recognition, provides the patron state with considerable leverage. Abkhazia, South Ossetia, Transnistria and Nagorno-Karabakh all depend on support from either Russia or Armenia, which provide vital financial and military resources. As noted by Thomas De Waal, while Abkhazia strives to foster its relationship with the European Union (EU), the leverage exercised by the patron state has pushed it “even deeper into the Russian sphere”.[7]

This separation from the international club of states jeopardises some basic rights of ordinary people. Residents lack enjoyment of basic benefits that inhabitants of de jure states often take for granted. For instance, passport holders of de facto states cannot travel internationally due to invalid travel documents. Youth have restricted possibilities when it comes to receiving an international education or participating in exchange programs.

Other problems include a strong pressure on the population to support the de facto regime. Insisting on respect for human rights and complaining about violations may be seen as a threat to the project of creating a new state.

De facto states are not state parties to international human rights treaties. Neither legislation nor international obligations of the parent state that protects human rights may be referred to in the de facto state’s constitution. De facto states may have enacted their own local legislation, which refers to international human rights, but institutional protections remain weak. If there is no independent and effective institution that can hear your complaint on human rights violations, protection may in effect become illusory.

How do universal human rights apply?

Finding the answer to the question on responsibility for human rights violations in de facto states is not easy. International law gives limited guidance. The situation seems to be that on one side there are regimes that lack de jure statehood and are under constant influence of patron and (sometimes) parent states. On the other side, millions of people residing on the territory of such entities at least should have the right to enjoy the same fundamental rights as other people.

Many of the human rights prescribed by the 1948 Universal Declaration of Human Rights, which remains the core document defining internationally recognised human rights, represent erga omnes standards enjoyed by all human beings, regardless of their beliefs, sexuality, race, nationality or other external factors. These rights have become part of customary international law, and therefore all state and non-state actors are bound to respect and protect them.[8]

Experience indicates, however, that without a clear and widely accepted doctrine on responsibility for upholding rights (respecting, protecting, and fulfilling them), they tend to be disregarded. So, setting aside the political aspects of the situations of the de facto states, the most important question is which actors could be held responsible for violating human rights. In spite of not being party to any international treaties of human rights, do de facto regimes themselves have international obligations to respect, protect and fulfil human rights? And which roles related to upholding human rights are parent and patron states obliged to play?

To avoid a legal vacuum, the ECtHR has placed responsibility on both parent state and patron state authorities. In Ilascu and others v Moldova and Russia,the Court stated that jurisdiction is presumed to be exercised through the State’s territory.

The Court added, however, that while the responsibility for human rights violations primarily lies on States Parties, an exception exists if the state is prevented from exercising its authority on part of its territory as a result of military occupation by the armed forces of another State which effectively controls the territory concerned.

In Transnistria, which is part of Moldova but without effective state control, the state still has a positive obligation under Article 1 of the Convention to take diplomatic, economic, judicial or other measures that are within its power and in accordance with international law to secure to the applicants the rights guaranteed by the Convention.

The judgement also discussed Russia’s extra-territorial jurisdiction, applying the test of ‘effective control’ to establish whether Russia provided military, economic and political support to the regime in Transnistria. Taking into account its military and political influence, including the presence of the Russian army on the territory and Russia’s reluctance to prevent or put to an end to the violation of the applicant’s rights, the Court found Russia responsible.[9]

The same line was followed by the Court in the case of Ivantoc and Others v Moldova and Russia.[10] The Court stated that Russia was responsible for the violations found in the case, which took place in Transnistria. In a more recent decision, Catan and Others v Moldova and Russia, the Grand Chamber found Russia’s responsible for Convention violations.[11]

In a judgement from 2017, Sandu and Others v. the Republic of Moldova and Russia, the Court seems to preserve its initial opinion about the responsibility of both Moldova and Russia over the contested territory of Transnistria andfound that both exercised jurisdiction under Article 1 of ECHR – Moldova as a territorial state, and Russia due to its effective control.[12]

Based on these judgements, it could be concluded that by applying the effective control test, the Court placed the main responsibility on the Patron state and at the same time did not relieve the Parent state from its positive obligation to take appropriate diplomatic or other measures in support of Convention rights.

So far, we have not reached an answer to the question on the responsibility of the de facto authorities themselves. Closer to answering that question is a resolution by the Parliamentary Assembly of the Council of Europe (PACE) of 10 October 2018. It states that as the human rights monitoring mechanisms constitute important tools in guaranteeing the universal human rights, the duty to respect human rights of its inhabitants should also be placed on de facto authorities themselves along with the states exercising effective control:

“… 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 is a part; even illegitimate assumption of the powers of the State must be accompanied by assumption of the corresponding responsibilities of the State towards its inhabitants. This includes a duty to co-operate with international human rights monitoring mechanisms. The Assembly also calls on States which exercise effective control over territories where local de facto authorities operate to exercise their influence so as to enable effective monitoring by international human rights bodies.”[13]

Based on these determinations, it is fair to conclude that both the parent and the patron state, as well as de facto authorities are responsible to uphold human rights to the extent that they exercise effective control over the territory. In practice, however, only a few cases will be brought to international human rights bodies, and the impact of general statements and resolutions of international organisations are limited.

To improve the human rights situation on the ground, there is a need, even more so than in recognised states that have clear-cut obligations to respect and protect human rights, for civil society activism, independent journalism and lawyers that refer to international human rights standards in order to build awareness, capacity, and willingness locally to deal with human rights violations.

Such actors can, especially if they are coordinated, challenge de facto authorities to increase protection of human rights, and bring about greater awareness among the general population of their human rights. We believe that this can be done in status-neutral ways, based on the above-rendered argument by PACE, that “the exercise of de facto authority brings with it a duty to respect the rights of all inhabitants of the territory in question”.

Strategies for strengthening human rights

We therefore argue that the principal goal of the international society at this time should be to strengthen human rights protection of ordinary individuals at local levels, irrespective of the legal status of the territories. This is in accordance with the 1975 Helsinki Final Act, which affirms that the international society should provide conditions in which people can live peacefully, free from any threat to their security.

Based on long-term experience from human rights work in the post-soviet space, we argue that bottom-up approaches should be prioritised by international actors. Grassroot civil society organisation initiatives to promote equality between people, to fight discrimination based on sex, age, disability, race, religion or sexual orientation, to improve prison conditions, to fight corruption and address other concrete issues that can be solved locally. Grassroot organisations can play important roles, both by making de facto authorities accountable and by spreading wider understanding in the population of human rights.

An important premise for this view is that many human rights issues may be addressed without conflict issues being solved. This is not to say, however, that the unresolved conflict issues do not impact the human rights situation. The human costs of conflict are extensive, especially for displaced persons but also for all persons living in de facto states.

There exist several obstacles to the promotion of human rights by civil society groups in de facto states, including a lack of information about the contents and effects of de facto government policies, and the lack of regional and international co-operation. While the space for civil society activism is quite wide in Abkhazia, in some of the other de facto states it is restricted. Media in de facto states are often politicised and/or dominated by patron state media.[14]

To overcome such obstacles, there should be more regional cooperation to eliminate the current information vacuum. Regional cooperation should involve journalists, lawyers and human rights defenders working on the ground in de facto, parent and patron states, as well as international organisations. Such cooperation should focus on promoting democratic institutions, strengthening freedom of expression, association, assembly and other fundamental freedoms, as well as rule of law.

By joining forces, journalists, lawyers, and human rights defenders may succeed in having real impact on the way de facto authorities act and in the way the population perceive their rule.

Lawyers can play an important role in challenging abuse of power, discrimination, etc., through the application of existing laws. They should also be trained to refer to international human rights standards, for instance by experts of the Council of Europe or international non-governmental organisations. They can also contribute to strengthening the position of journalists and human rights defenders vis-à-vis executive authorities, by providing legal advice and defending their rights in courts. Lawyers may also be useful for the other actors in developing strategic thinking on the selection of issues and methods.

Independent journalism is a key to exposing government abuse, corruption, and human rights violations. By working together with human rights defenders and lawyers, journalists strengthen their position. Their findings of wrongdoing or of abusive policies may eventually result in cases being taken to courts and/or form the basis of campaigns and popular movements for change. Through this co-operation, journalists may also increase their resistance to political influence, and develop a more professional approach to reporting.

In some de facto states, there are government institutions with an independent status and a mandate to protect and promote human rights. The Ombudsperson (commissioner) for human rights in Abkhazia, is an example. It was established by a separate law in 2016 and provides citizens and civil society organisations with a complaint mechanism for human rights violations.

Such institutions, if they are allowed by de facto authorities to function independently, may play an important role in fostering human rights awareness, and finding human rights-based solutions to societal issues. They may also lead to strengthening of civil society initiatives, if they have a co-operative approach.

Only in March 2018, the de facto Abkhazian parliament elected Asida Shakryl as ombudsperson. Even if the institution had been created by a 2016 law, it had lacked funding to operate. The ombudsperson’s office formally opened in November 2018.[15] It might therefore be premature to evaluate the effectiveness of the institution. The Ombudsperson’s intervention in a recent case of death in detention, however, signals that she aims to be outspoken on clear cases of abuse. The Ombudsperson both asked for legislative changes to increase protection against torture, and for mandatory recording on video of interrogations.[16]

Strategies of co-operation and local empowerment may prove hard to implement due to hostility from authorities in de facto or patron states. There is therefore great need for status-neutral involvement of international organisations to support and co-operate with local initiatives and help build their capacity.

EU funding and funding from democratic states should be made available to support training of journalists and establishment of news sites providing professional reporting. Such support could also be tailored to nurture cooperation between journalists, human rights defenders and lawyers, i.e. by establishing meeting points and joint training. International professional networks of journalists should also be encouraged to include journalists from de facto states.

This may be viewed with suspicious eyes by authorities in parent states. They should, however, consider that strengthening human rights protection in de facto states are beneficial not only for the people living there, but also for the parent state in the case of a solution of conflicts and re-integration of the de facto state into the parent state. To re-integrate a well-functioning territory is easier than to re-integrate a territory characterised by widespread human rights problems.

There may also be a need to create, train and prepare mobile groups of lawyers and human rights defenders to be able to react quickly to and document situations of serious human rights violations and escalations of conflicts. Such groups could provide accurate information and defend the rights of people caught in conflict situations, which is currently lacking.

Conclusions

While it remains important to support the use of international complaints mechanisms to address human rights issues in de facto states, supporting development of civil society groups and training of journalists and lawyers to work together on issues may prove to be the most effective strategy to improve human rights in de facto states.

International organisations, the EU, and democratic governments should increase their support for such co-operation. Tripartite collaboration of journalists, lawyers and human rights defenders has proved especially effective in addressing human rights issues, disseminating knowledge about human rights and building pressure on authorities (de facto or de jure) to address issues.

The international community should press for solutions to difficulties of accessing de facto states. Opportunities should be made for international human rights organisations to conduct status-neutral field research, without being accused of violating international law.[17]

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.

Many human rights issues can be solved in status-neutral ways, such as improving prison conditions, health care, education, social services, and housing; eliminating discrimination; and increasing respect for fundamental freedoms. Co-operation on solving such issues should be strengthened, both internally and regionally.

It is also clear, however, that unresolved conflict issues have severe impacts on many human rights for both people living in de facto states, and for displaced people. Improving status-neutral human rights should therefore never be a substitute for efforts in solving the conflicts and remedying their negative consequences.

About six million people live in de facto states in Europe. There is no doubt in international legal theory that they have human rights on par with people living in recognised states.

More efforts should now be invested in making human rights a reality for these people.


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.

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 Caucasian Knot.

[1] See for example: Ilaşcu and Others v. Moldova and Russia, Application No 48787/99, Judgement, 8 July 2004

[2] Nina Caspersen and Gareth Stansfield, Unrecognised states in the international system. Routledge, 2011, pp. 1-3

[3] Charles King, The Benefits of Ethnic War: Understanding Eurasia’s Unrecognized States. World Politics, Cambridge University Press, Vol. 53, No. 4 (July 2001), pp. 524-552

[4] For the situation in Nagorno-Karabakh, ‘low-intensity armed conflict’ may be the right categorization due to sniper shooting and occasionally flaring up of fighting.

[5] Silvia von Steinsdorff and Anna Fruhstorfer, “Post-Soviet de facto States in Search of Internal and External Legitimacy. Introduction”, Communist and Post-Communist Studies, 45 (1-2), p. 118.

[6] Dov Lynch, Engaging Eurasia’s Separatist States: Unresolved Conflicts and de Facto States, United States Institute of Peace, 2004, p. 15.

[7] Thomas De Waal, “Introduction: The Strange Endurance of De Facto States”, Carnegie Europe, December 3, 2018, https://carnegieeurope.eu/2018/12/03/introduction-strange-endurance-of-de-facto-states-pub-77841

[8] Hans-Joachim Heintze, “Are De Facto Regimes Bound by Human Rights?” Yearbook of the Organization of Security and Co-operation in Europe (OSCE) 2010, p. 268.

[9] Ilaşcu and Others v. Moldova and Russia, Application No 48787/99, Judgement, 8 July 2004, paras. 310-385

[10] Ivantoc and Others v Moldova and Russia Application No 23687/05, Merits and Just Satisfaction, 15 November 2011, paras. 118-119.

[11] Catan and Others v Moldova and Russia, Applications Nos 43370/04, 8252/05 and 18454/06, 19 October 2012.

[12] Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05, 3 December 2018, paras. 32-39.

[13] PACE, Unlimited access to member States, including “grey zones”, by Council of Europe and United Nations human rights monitoring bodies, Resolution 2240 (2018), http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?fileid=25168

[14] This part of the essay draws on viewpoints presented at a Norwegian Helsinki Committee (NHC) two-day conference in December 2018, gathering around 35 human rights defenders, lawyers and journalists from de facto states. The conference aimed at mapping human rights problems and fostering cooperation between activists, lawyers and journalists. The conference was part of an NHC program of annual Anna Politkovskaya meetings, in commemoration of the brave Russian journalist that was killed in 2006 because of her work in Chechnya. The seminar was entitled: “Secession from the Soviet Union continues – 10 years after the war in Georgia. What is the price of independence?”

[15] Freedom House, Freedom in the world 2019: Abkhazia, https://freedomhouse.org/report/freedom-world/2019/abkhazia

[16] Caucasian Knot, “Detainee’s death raises problem of torture in Abkhazia”, 3 August 2019, https://www.eng.kavkaz-uzel.eu/articles/48010/

[17] A recent example of valuable international human rights reporting from de facto states is, Thomas Hammarberg and Magdalena Grono, Human Rights in Abkhazia Today, July 2017, https://www.palmecenter.se/en/article/palmecenter-publishes-first-independent-report-human-rights-abkhazia/

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