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Working Paper No. 215 – September 2019

NON-RECOGNIZED STATES: OCCUPIED OR MERELY

SPONSORED AND WHY IT MATTERS FOR THE

PROTECTION OF HUMAN RIGHTS

Linda Hamid

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NON-RECOGNIZED STATES: OCCUPIED OR MERELY SPONSORED AND

WHY IT MATTERS FOR THE PROTECTION OF HUMAN RIGHTS LINDA HAMID

Abstract

Non-recognized states are the misfits in a world of States. Since they are born out of unilateral

secession, often accomplished with the support of a third State in violation of the principle of

territorial integrity and the prohibition on the threat or use of force, the international community

has refused to accept them in its midst, generally pointing in this sense to the illegality of their

coming into being. Nevertheless, non-recognized states have managed to build State-like

structures of their own, often with the military, political and economical support of a third State

and, as a result, they exercise domestic sovereignty despite lacking international legal

sovereignty. Non-recognized states are also the object of competing narratives that render their

legal status even vaguer. In line with their claims for self-determination and aspirations for full-

fledged independence, non-recognized states advance the narrative of ‘statehood’ which,

however, is almost universally denied by the international community. The States from which they

broke-away usually hold as true the narrative of ‘occupation’, contending that the States

supporting these entities are in fact occupying them. These third States, on the other hand, argue

that non-recognized states are independent actors which they merely support, a narrative which

will be referred to as the ‘sponsorship’ framework. Consequent to these competing narratives,

more than a million people are left largely outside international and regional human rights

protection frameworks, as it remains unclear who their human rights guardian is. This paper seeks

first, to offer an overview of the three competing narratives; second, to explain the ensuing legal

vacuum in human rights protection in non-recognized states; third, to examine how these

narratives are used, their overall legal merits and their potential impact on human rights protection

in the territories concerned by them; and finally, to draw some, albeit preliminary, conclusions on

the narrative most befitting the reality on the ground and on the identity of the human rights

guardian therein.

Keywords: non-recognized states; human rights; occupation; effective control; principle

of effectiveness.

Authors

Linda Hamid – Leuven Centre for Global Governance Studies – Institute for International Law,

KU Leuven, Belgium

linda.hamid@kuleuven.be

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Table of Contents

1. Introduction .......................................................................................................................................... 4

2. The stories that we tell about non-recognized states ................................................................... 5

3. A legal vacuum in the protection of human rights in non-recognized states ............................. 9

4. The ‘occupation’ narrative: its use, legal merits, and impact on the protection of human

rights in non-recognized states .............................................................................................................. 12

5. The ‘sponsorship’ framework: between the ‘effective control’ of the patron State and the

independence of de facto authorities .................................................................................................... 18

6. Concluding remarks ......................................................................................................................... 25

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1. Introduction

The ensuing contribution is, in essence, a story about stories. More precisely, the objective of this

study is to examine the stories – or, as I will refer to them throughout my paper, ‘narratives’ and

‘frameworks’ – told by the various actors, States and non-States alike, that have a vested interest

in the making or the breaking of entities that, at least here, will be referred to as non-recognized

states (NRS). Abkhazia, South Ossetia, Transnistria, Nagorno-Karabakh, or Northern Cyprus are

entities which exercise internal sovereignty and exhibit State-like characteristics. However, they

remain non-recognized by the international community, which instead supports the sovereignty

and territorial integrity of the States from which they broke-away, often with the assistance of a

third State in violation of the prohibition on the threat or use of force. Formally, these breakaway

territories remain an integral part of the internationally recognized parent States. In reality though,

it is de facto authorities – frequently surviving by virtue of the military, political and economic

support of a patron State – that exercise control and authority over these breakaway regions and

their respective populations. Consequent to this discrepancy between the normative and the

concrete, NRS are ejected to the outskirts of international life, where they languish in legal limbo,

often falling outside the scope of application of international law and, even more importantly for

the individuals inhabiting these territories, international human rights law (IHRL).

At its very core, the phenomenon of NRS is a territorial or, if you so wish, sovereignty dispute

between not two, but three interested parties, each clinging to their own story-line in this respect.

First, there is the breakaway entity itself which, in light of its aspirations for sovereign

independence and its State-like architecture, hinges on the narrative of ‘statehood’. Then, there

is the State that has lost a part of its territory and which, pointing to the illegality of the breakaway

region’s formation and the support, ofttimes military and political, that it receives from a third State,

advances the narrative of ‘occupation’ of the lost territory by the said outside power, thus also

implicitly denying any claims, whether legitimate or not, that the NRS might have under the

‘statehood’ framework. The third State, or the sponsor, as it will be sometimes referred to in this

paper, upholds the narrative advanced by the breakaway territory and, at the same time,

fundamentally denies the framework supported by the parent State, contending that any support

that it offers to the NRS in question does not, in any way, meet the required threshold under the

‘occupation’ narrative. In the paper, this third story-line will be referred to as the ‘sponsorship’

framework. While these stories are all mainly a political discourse, one cannot deny their legal

undertones, since the concepts used by these actors in justifying their actions and views are

unquestionably legal in nature and thus have consequences on the legal plane. The power

exercised by an actor, be it a State or a non-state actor, over territory and population must

undoubtedly be constrained by various obligations under international law and, since this is in fact

an issue of governance, these duties are to be found mainly in the rules and standards imposed

by IHRL. Logically, any breach of such an obligation should entail either the international

responsibility of the State or, at the very least, a potential for accountability if the wrongdoer is a

non-state actor. However, the competing narratives discussed above render this extremely

difficult in practice since, under each framework, the human rights guardian in NRS seems to be

a different State or non-state actor, with the reality on the ground, beyond any discourses,

certainly also mixing elements of both.

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In view of the above, this paper intends to shed some clarity on some of the legal merits and

consequences of these contending narratives and their effect on the question of human rights

guardianship and, as such, the protection of human rights in NRS. As a disclaimer, the study does

not aim to make any categorical determinations about the various claims and discourses flaunted

by the actors involved, but merely to assess their overall merits and consequences on the legal

plane as far as the protection of human rights is concerned. To that end, the paper will proceed

as follows: first, it will offer an overview of the three competing narratives and, in this context, it

will also briefly define and describe the concepts it employs throughout; second, the study will

describe the legal vacuum in the protection of human rights that ensues in NRS as a result of the

three competing narratives; third, after observing that the ‘statehood’ narrative might probably

warrant a study of its own, the paper will shift its focus on the ‘occupation’ framework, looking at

its use, legal merits, and potential impact on the protection of human rights in the purportedly

occupied territories; fourth, the paper will examine the sponsorship framework and the possibility

of dual responsibility – of either the sponsor or the de facto authorities in control – that it entails;

finally, in light of the analysis undertaken, it will offer a few forward-looking concluding remarks.

2. The stories that we tell about non-recognized states

On 25 August 2008, in the immediate aftermath of the five-day war between Georgia, Russia and

Abkhaz and South Ossetian forces, the Russian Parliament passed a motion calling for the

diplomatic recognition of Abkhazia and South Ossetia by the Russian President.1 It was precisely

Russia’s increasing support for the two breakaway regions that had unilaterally declared

independence from Georgia in 1991 (South Ossetia), respectively 1992 (Abkhazia) that set off

the Georgian-Russo hostilities. On 26 August 2008, Dmitry Medvedev, then Russian President,

signed the decrees recognizing the independence of Abkhazia and South Ossetia by the Russian

Federation.2 The measure was widely condemned by the international community,3 which thus

renewed its firm commitment ‘to the sovereignty, independence and territorial integrity of

Georgia’.4 In response, the Parliament of Georgia adopted the ‘Law on Occupied Territories’, the

language of ‘de-occupation’ having since taken centre stage in Georgia’s strategy to recover its

lost territories.5 The legislation, which was signed into law by the Georgian President in late

October 2008, is based on the premise that the two breakaway regions are an integral part of

Georgia, but are illegally occupied by the Russian Federation, a view that is fundamentally

opposed to that of Russia, which considers Abkhazia and South Ossetia to be independent

1 BBC News, ‘Russian MPs back Georgia’s rebels’ (25 August 2008) <http://news.bbc.co.uk/2/hi/europe/7580386.stm>. 2 BBC News, ‘Russia recognizes Georgian rebels’ (26 August 2008) <http://news.bbc.co.uk/2/hi/7582181.stm>. 3 See, among others, CoE Parliamentary Assembly, ‘The consequences of the war between Georgia and Russia’, Resolution 1633 (2008) para 9 in particular. 4 UNSC Res 1808 (15 April 2008) UN Doc S/RES/1808 para 1. 5 Bruno Coppieters, ‘’Statehood’, ‘de facto Authorities’ and ‘Occupation’: Contested Concepts and the EU’s Engagement in its European Neighbourhood’ (2018) 17 Ethnopolitics 343, 353.

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states.6 In its Article 7, the law goes as far as explicitly assigning responsibility for all human rights

violations occurring in Abkhazia and South Ossetia to the Russian Federation.7 But, as indicated

by the European Commission for Democracy through Law (Venice Commission) in the opinion it

was asked to give on the Georgian law, ‘[a]s a rule, questions of international responsibility cannot

be regulated on the basis of national law, but are solved on the basis of international law’.8 I would

further add here that the use by the concerned parties of terms such as ‘statehood’ and

‘occupation’, no matter how politically expedient, must arguably also be in line with the facts on

the ground and their legal meaning under international law. However, given the unquestionably

complex factual backdrop and the various competing narratives at play, international law is far

from straightforward in this sense.

The Georgian breakaway regions of Abkhazia and South Ossetia share obvious similarities with

places like Transnistria (Moldova), Nagorno Karabakh9 (Azerbaijan) or the Turkish Republic of

Northern Cyprus - TRNC (Cyprus) in that they trace their origins to self-determination conflicts

and unilateral secession, usually accomplished with the assistance of a third State in violation of

the prohibition on the threat or use of force and the principle of territorial integrity,10 a state of

affairs that then chiefly explains why the international community has maintained a policy of non-

recognition towards them.11 In practice, this means that, despite their claims for independent

statehood and the fact that they exhibit most, if not all the trappings of statehood, they remain

almost universally non-recognized.12 Indeed, these entities tend to mimic statehood to such an

extent that they almost satisfy the criteria for statehood specified in the Montevideo Convention

on the Rights and Duties of States in that they have a territory, a population, and governmental

structures of their own.13 In this sense it is worth noting, for instance, that the Independent

International Fact-Finding Mission on the Conflict in Georgia described Abkhazia like a ‘[S]tate-

like entity’ whereas South Ossetia, even though seen as having ‘a territory, a population, and a

government acting on a newly established constitutional basis’ was qualified as an ‘entity short of

statehood’ on grounds that its domestic policy was considered to be largely influenced by

Russia.14 Their puzzling nature, which obviously sets them apart from the traditional actors

operating within the international system, is further reflected in the diverse language used to

6 Venice Commission, ‘Opinion on the Law of Occupied Territories of Georgia’ (17 March 2009) CDL-AD(2009)015 paras 3, 5 and 6. 7 ibid, para 37. 8 ibid. 9 Following the constitutional referendum of 20 February 2017, the entity adopted the name of ‘Artsakh Republic’, which is now used alongside the name of ‘Nagorno-Karabakh’. 10 For instance, the UN Security Council has upheld ‘the sovereignty and territorial integrity of the Azerbaijani Republic’ and, in this sense, it has also highlighted ‘the inadmissibility of the use of force for the acquisition of territory’. See UNSC Res 853 (29 July 1993) UN Doc S/RES/853. 11 See e.g. UNSC Res 541 (18 November 1983) UN Doc S/RES/541, calling on all States not to recognize the TRNC. 12 Consider, for instance, that only seven UN member States recognize Abkhazia, whereas Transnistria or Nagorno-Karabakh are recognized by none. 13 See, in this sense, Montevideo Convention on Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1994) 165 LNTS 19 art 1. 14 Independent International Fact-Finding Mission on the Conflict in Georgia, Report, Volume II, 30 September 2009, 134.

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describe them in the literature or by various international and regional bodies: ‘de facto states’,15

‘contested states’,16 ‘territorial non-state actors’,17 ‘legally unrecognized’ and ‘disputed

territories’18 controlled by ‘de facto authorities’,19 ‘self-proclaimed authorities’, ‘unrecognised

entities’20 or, as seen at the very outset of this paper, ‘occupied territories’.21 As mentioned in the

introduction to this study, and adding to the almost kaleidoscopic variation of terms enumerated

above (which, mind you, is not exhaustive), this paper will hereinafter use the concept of NRS

(‘non-recognized states’)22 to refer to these entities – a denomination that, while arguably not a

legal term of art, accurately reflects the tension between, on the one hand, their aspirations and

State-like characteristics and, on the other hand, their legal status under international law or, to

be more precise, the lack thereof.

From the standpoint of the international community, NRS remain de jure an integral part of their

parent States, i.e. the States from which they broke-away and that arguably retain a sovereign

title over them.23 This, however, is nothing else but mere legal fiction, as these regions are in fact

completely outside the effective control of their parent States. At this point, three competing

narratives come into play. The first narrative, or story if you so wish, is the one told by NRS and

those who support their bids for independence. I will refer to it as the story of ‘statehood’, since it

essentially goes like this: a struggle for national self-determination, combined with a purported

right to remedial secession as a result of alleged human rights abuses perpetrated against them

by their respective parent States,24 and the development of professedly viable and democratic

institutions that enable their leadership to provide basic public goods and services, have led to

the creation of ‘effective statehood’.25 For them, these are the cold hard facts and it is only

because ‘[t]he international system of sovereign states is rigged to ensure that the parent [S]tate

15 Scott Pegg, International Society and the De Facto State (Ashgate 1998). 16 Deon Geldenhuys, Contested States in World Politics (Palgrave Macmillan 2009). 17 Yaël Ronen, ‘Human Rights Obligations of Territorial Non-State Actors’ (2013) 46 Cornell Intl L J 21. 18 OHCHR, ‘Opening Statement by Zeid Ra'ad Al Hussein, United Nations High Commissioner for Human Rights, at the 33rd session of the Human Rights Council’ (13 September 2016). 19 UN News, ‘UN rights chief urges action in disputed areas with first report on Transnistrian region’ (14 February 2013) <https://news.un.org/en/story/2013/02/431992-un-rights-chief-urges-action-disputed-areas-first-report-transnistrian-region>. 20 The denomination of ‘self-proclaimed authorities’ was first used by the European Court of Human Rights in a case concerning Transnistria. See Ilașcu and Others v the Republic of Moldova and Russia App no 48787/99 (ECtHR, 8 July 2004) para 318. However, in more recent judgments, the Court has replaced it with the term ‘unrecognised entities’. See, among others, Mozer v. the Republic of Moldova and Russia App 11138/10 (ECtHR, 23 February 2016) para 135. 21 See e.g. European Parliament, ‘European Parliament resolution of 14 June 2018 on Georgian occupied territories 10 years after the Russian invasion’ (14 June 2018) P8_TA(2018)0266. 22 This is a variation of the term used to describe these entities by the various authors in Nina Caspersen and Gareth Stansfield (eds), Unrecognized States in the International System (Routledge 2011). 23 Helge Blakkisrud and Pål Kolstø, ‘Dynamics of De Facto Statehood: The South Caucasian De Facto States Between Secession and Sovereignty’ in 12 Southeast European and Black Sea Studies 281. 24 Nina Caspersen, ‘From Kosovo to Karabakh: International Responses to De Facto States’ (2008) 56 Südosteuropa 58, 60-61. On the remedial secession argument and how it squares with existing public international law norms, see generally Linda Hamid and Jan Wouters, ‘We the People: Self-Determination v. Sovereignty in the Case of De Facto States’ (2016) 1 McGill J Intl L & Legal Plur 53. 25 See Nina Caspersen, ‘States without Sovereignty: Imitating Democratic Statehood’ in Nina Caspersen and Gareth Stansfield (eds), Unrecognized States in the International System (Routledge 2011) 73.

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prevails’26 that they have not yet been recognized and welcomed as full members of the

international community. The second narrative is the one generally developed by the respective

parent States when faced with the loss of a part of their territory, with some elements of the

international community also adhering to this view, which is that NRS are in fact ‘occupied

territories’. In the cases discussed here, the occupying powers would be Armenia, Russia, or

Turkey. On their side, these States argue that their role with respect to NRS is ‘merely

supportive’27 and that they either have no military presence therein28 or, if they do, that the

presence of armed forces has been freely agreed to by the receiving entities, who are genuinely

independent states.29 Moreover, the alleged occupiers also deny that their armed forces or

governments exercise any type of governmental authority in NRS.30 It is here that the third (and

last) narrative concerning NRS comes into play. In the paper at hand I will speak about this

narrative, which is favoured by various parts of the literature31 (including by myself) and some

international or regional bodies,32 as the ‘sponsorship’ framework. According to this framework,

even though the decades-long survival of NRS is usually facilitated by the political, military and

economic support of a so-called sponsor or patron State,33 it is the de facto authorities in NRS

that exercise effective control over the disputed territories, wielding power and authority over

millions of people.34 On the one hand, this framework implies that, given a ‘partial dependence’

on their respective patron States and the ‘potential for control’ ensuing in consequence, de facto

authorities in NRS may, in certain circumstances, act under the ‘direction or control’35 of their

patron State, who would be then held responsible if found to have exercised ‘effective control’

over any specific activities leading to a wrongful act under international law.36 On the other hand,

the ‘sponsorship’ narrative also implies that de facto authorities in NRS are just as ‘capable of

acting at their own discretion’.37 However, supposing that they do act independently and in ways

26 Nina Caspersen, Unrecognized States: The Struggle for Sovereignty in the Modern International System (Polity Press 2012) 40. 27 See e.g. the arguments brought by the respondent government in Chiragov and Others v Armenia App no 13216/05 (ECtHR, 16 June 2015) para 158. 28 ibid, para 161. 29 See, for instance, Turkey’s arguments in this sense in Loizidou v Turkey App no 15318/89 (ECtHR, 18 December 1996) para 51. See also Russia’s arguments re Abkhazia and South Ossetia in Independent International Fact-Finding Mission on the Conflict in Georgia (n 14) 308-309. 30 ibid. 31 To give but one example, see generally Stefan Talmon, ‘The Responsibility of Outside Powers for Acts of Secessionist Entities’ (2009) 58 Intl & Comp L Q 493. Also, note that at page 494, he specifically refers to ‘the outside power directly or indirectly sponsoring or supporting these entities’. See also Caspersen (n 26) 39. 32 See e.g. Ilașcu and Others v the Republic of Moldova and Russia (n 22) para 382. My reading of the Court’s judgment will be further explained under section 5 of this paper. 33 ibid. For instance, Abkhazia, South Ossetia, and Transnistria are economically, militarily, and politically heavily dependent on Russia. For more on this, see Nicu Popescu, ‘Outsourcing de facto Statehood: Russia and the Secessionist Entities in Georgia and Moldova’ (Centre for European Policy Studies, Policy Brief No. 109, 2009). 34 This is also implied by the language used by a former UN High Commissioner for Human Rights when describing these breakaway regions, namely ‘controlled by de facto authorities’. See ‘UN rights chief urges action’ (n 19). 35 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 53 UN GAOR Supp. (No. 10) at 43 (November 2001) UN Doc A/56/10 art 8. 36 See Talmon (n 31) 502-503. 37 Ronen, ‘Human Rights Obligations’ (n 17) 28.

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that may be contrary to international law, it is unclear whether NRS could be held directly

accountable at the international level since, as deftly suggested by James Crawford, when

‘international law withholds legal status from effective illegal entities, the result is a legal vacuum

undesirable both in practice and in principle’.38

3. A legal vacuum in the protection of human rights in non-recognized states

Consequent to the three competing narratives described here, NRS remain shrouded in mystery.

With their legal status unclear, they languish at the outskirts of the international community,

peering from the outside in. Even though they emphasize the development of an effective State-

like apparatus and the internalization of democratic governance and human rights,39 NRS are

unable to override the arguably stronger principle of territorial integrity and the often-illegal

character of their coming into being. Given that, at present, the international system appears to

place more value on ‘legitimacy, lawfulness and legality’ rather than on the ‘factual elements’ on

the ground,40 the prospects for NRS to have their aspirations for independent statehood

internationally recognized are slim, to say the least. At this point, it must be acknowledged that,

at their very core, the three competing narratives discussed here are, in fact, nothing else but the

stories that we tell about a sovereignty dispute: to whom do these territories actually belong to

and who may not have them, even though it (either directly or indirectly) effectively controls them?

Unfortunately though, as these stories go, the people living in NRS and the protection of their

rights and freedoms have become almost auxiliary to the legal and political status of the territories

they inhabit.

Indeed, although the Universal Declaration of Human Rights in its Article 2 affirms that all

individuals are entitled to the full range of rights and freedoms proclaimed in the Declaration,

regardless of ‘the political, jurisdictional, or international status of the country or territory to which

a person belongs’,41 it also remains true that the international and regional instruments that have

thus far translated the rights enshrined in the Declaration into binding legal obligations are almost

entirely42 focused on States as obligation-holders.43 In view of the State-centricity of our

international system, NRS are effectively ejected from the system by being denied membership

in international organizations like the United Nations (UN) or regional ones, such as the Council

38 James Crawford, ‘The Criteria for Statehood in International Law’ (1976-1977) 48 Brit YB Intl L 93, 145. 39 See Anne-Marie Gardner, ‘Beyond Standards before Status: Democratic Governance and Non-State Authors’ (2008) 34 Rev Int Stud 531. 40 Salvatore Zappalà, ‘Can Legality Trump Effectiveness in Today’s International Law?’ in Antonio Cassese (ed) Realizing Utopia: The Future of International Law (OUP 2012) 105, 106. 41 Universal Declaration of Human Rights (adopted 10 December 1948) UN Doc UNGA Res 217 A(III) art 2. 42 See Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (adopted 25 May 200, entered into force 12 February 2002) 2173 UNTS 2222 art 4(1) as the only apparent exception that seems to impose human rights obligations on non-state armed actors. 43 See e.g. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 or European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (adopted 4 November 1950, entered into force 3 September 1953) ETS 5.

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of Europe (CoE), as well as the possibility to sign and ratify the various conventions that are

developed by these organizations and which are normally reserved for States.44 As a result, few

if in fact any international rules apply to them, with almost disastrous consequences for the

protection of the human rights and freedoms of those living in NRS, as they fall largely outside

the ambit of IHRL. For example, consider that the various standard reporting practices developed

under the UN human rights system are generally non-applicable or that, since membership to

their constitutive instruments is normally reserved to States, treaty bodies such as the UN Human

Rights Committee or courts like the European Court of Human Rights (ECtHR or the Court) are

largely unable to entertain individual complaints or applications alleging human rights violations

at the hands of the de facto authorities in NRS.

Arguably then, it has been justly indicated by former UN High Commissioner for Human Rights

Navi Pillay that ‘[p]eople living in disputed territories, where legitimacy of control over a territory,

security, development, and humanitarian concerns are frequent, often lack or have very limited

access to effective legal remedies’.45 This view was also echoed by the CoE when, in the

immediate aftermath of the 2008 Georgian-Russo war, the organization’s Parliamentary

Assembly issued a resolution noting that it considered ‘it unacceptable that persons residing in

Abkhazia and South Ossetia should not be effectively covered by the human rights protection

mechanisms granted to them as citizens of a Council of Europe member [S]tate under the

European Convention on Human Rights, as well as other relevant Council of Europe conventions

[…].’46 In the Assembly’s view, ‘[s]uch a human rights protection black hole should not be allowed

to exist within the Council of Europe area’.47 Recently, this concern has also been reiterated by

former CoE Secretary General Thorbjørn Jagland who, in his 2019 annual report, urged the

regional organization to ‘definitively’ address the phenomenon of ‘grey zones’ – the term used by

some CoE bodies when referring to NRS – so as to ensure that ‘[t]he fundamental rights of every

European’ are ‘protected equally’.48 Certainly, in the context of ‘statehood without recognition’,49

the lack of external checks on the power exercised by de facto authorities in NRS deprives the

individuals living under their control of the international human rights guarantees commonly

enjoyed by the citizens of sovereign States. Indeed, whereas the latter live their day-to-day lives

under what is currently the default narrative in the international system – i.e. ‘statehood’ –, the

former substantially fall between the cracks of the three stories described here and a big question

mark: who is the guardian of human rights in NRS?

44 For more on NRS as areas falling largely outside of the international human rights system, see Linda Hamid, ‘Non-state actors that aspire to be States: white spots on the international human rights protection map?’ in K. McCall-Smith, A. Birdsall & E. Casanas Adam (eds), Human Rights in Times of Transition (Edward Elgar Publishing forthcoming 2019). 45 ‘UN rights chief urges action’ (n 19). 46 CoE Parliamentary Assembly, ‘Implementation of Resolution 1633 (2008) on the consequences of the war between Georgia and Russia’, Resolution 1647 (2009) para 14. 47 ibid. 48 CoE Secretary General, ‘Ready for Future Challenges: Reinforcing the Council of Europe’ (Report for the 129th Session of the Committee of Ministers, April 2019) 48-49. 49 Caspersen, ‘States without Sovereignty’ (n 25) 87.

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In accordance with the ‘statehood’ narrative that they promote, as well as their aspirations for

international recognition, de facto authorities in NRS generally claim to be actively engaged in

meeting the challenges of human rights protection at the domestic level, despite being effectively

barred from seeking accession to the various international or regional human rights instruments

and bodies.50 In consequence, they tend to develop internal legal frameworks that often

incorporate norms for the protection of human rights, as well as judiciary systems and other

institutional mechanisms essential for the formal protection and enforcement of human rights at

the domestic level.51 Conceivably, just as in numerous sovereign States, the State-like structures

and the legal and institutional frameworks developed in NRS may very well offer adequate human

rights guarantees and function in a manner conducive to the effective implementation of

international human rights standards. Likewise, in the same vein as a considerable number of full-

fledged States, they may equally exhibit serious rule of law shortcomings and blatantly breach

the human rights and freedoms of those living under their control. However, what sets apart these

states-in-waiting from sovereign States in this respect is the fact that, no matter how strong or

weak the different human rights frameworks set-up by their de facto authorities, there is almost

no international supervision to keep them in check or to hold them directly accountable when the

international standards that they unilaterally claim to uphold are flouted.52 Indeed, without

international recognition, the ‘statehood’ narrative remains just that: a narrative. It thus offers little

added value in terms of domestic and/or international human rights protection to those living in

NRS. For this reason, and having regard to the obvious futility of even attempting to disentangle

the web of arguments for and against the narrative of ‘statehood’, ranging from matters of self-

determination and a contested right to remedial secession to theories of State recognition, as well

as the fact that any such determination is ultimately political and at the hands of the international

community, this paper will now leave the story of ‘statehood’ behind. In any event, in the off-

chance that an NRS may transition into an internationally recognized sovereign State, the matter

of human rights guardianship would be at least tentatively solved, the new State thus assuming

its full responsibility in this respect under whichever international human rights obligations will be

found to be applicable to it.53 Until then – if in fact there will ever be such a ‘then’ – the two other

narratives, i.e. ‘occupation’ and ‘sponsorship’ compete to tell the story of NRS and thus implicitly

impact the question of human rights guardianship therein.

As seen here, with their claims for independent statehood ignored, NRS remain de jure part of

their parent States. And yet, since the latter only have nominal control over their breakaway

territories, effective control is in fact exercised under the two competing narratives by either an

occupying power or by de facto authorities sponsored by a patron State. Accordingly, the parent

States generally refuse to accept any type of responsibility for wrongful acts committed by those

in effective control over NRS since, according to the international law of State responsibility,

50 See e.g. Thomas Hammarberg and Magdalena Grono, ‘Human Rights in Abkhazia Today’ (Olof Palme International Centre 2017) 3. 51 See further Hamid (n 44). 52 ibid. 53 On the issue of succession to human rights treaties in the context of NRS see Andrew Cullen and Steven Wheatley, ‘The Human Rights of Individuals in De Facto Regimes under the European Convention on Human Rights’ (2013) 13 Hum Rts L Rev 691, 717-723.

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States cannot be held responsible for the conduct of entities acting independently from them.54

Moreover, even supposing that parent States, as de jure guardians, would be willing to protect

and enforce human rights in NRS, it must be conceded that they lack the capacity to do so in

areas beyond their control albeit, according to some views, they still hold positive human rights

obligations by virtue of their sovereign title over the breakaway territories.55 Conversely, the

occupying power or the so-called patron State – depending which narrative one finds to be

applicable – almost always denies any responsibility, attributing it instead to so-called ‘local

government[s]’56 which, under the ‘sponsorship’ narrative, may arguably also be found

accountable for breaches of human rights if and when they act independently. The paper will now

turn to an overview of how these two narratives are used, their legal merits, as well as their impact

on the protection of human rights in NRS.

4. The ‘occupation’ narrative: its use, legal merits, and impact on the protection

of human rights in non-recognized states

The stories told by the parent States about the territories that they have lost are almost entirely

built upon the ‘occupation’ narrative. Indeed, as already discussed here, Georgia sees Russia as

an occupier in Abkhazia and South Ossetia, whereas Cyprus holds the same view with respect

to Turkey in the TRNC, and Azerbaijan usually describes the secessionist Nagorno-Karabakh, as

well as some of its surroundings, as an ‘illegal occupation’ by Armenia.57 Rather incongruously,

even though it does not formally consent to the presence of the Operational Group of Russian

Forces in Transnistria, frequently demanding their withdrawal in forums such as the UN General

Assembly (UNGA),58 Moldova does not describe its breakaway region as being occupied by

Russia.59 Arguably, this attitude also reflects Moldova’s diplomatic strategy, which is ‘aimed at

preparing [Transnistria’s] return to the Moldovan legal order’.60 The narrative of ‘occupation’ is

sometimes also supported by various international or regional organizations – and, most often,

by some of these organizations’ deliberative or parliamentary bodies. As a first example, in a

series of resolutions adopted in 1993 during the escalation of ‘the conflict in and around’ Nagorno-

Karabakh and ‘the tensions’ between Armenia and Azerbaijan, the UN Security Council (UNSC)

used the terms ‘occupation, ‘occupied areas’, and ‘occupying forces’ with reference to Nagorno-

Karabakh and areas adjacent to it.61 In light of the various UNSC resolutions calling on all States

54 On the rules determining what conduct can be considered as an act of State for the purpose of international responsibility, see generally ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’ (2001) Yearbook of the International Commission Vol II, Part Two, 38-54. 55 See e.g. Ilașcu and Others v the Republic of Moldova and Russia (n 22) para 330. 56 See e.g. the submissions of the Russian government in Catan and Others v. Moldova and Russia App no 43370//04 (ECtHR, 19 October 2012) paras 96-101. 57 Coppieters (n 5) 353-354. 58 For instance, see UNGA Res 72/282 (26 June 2018) UN Doc A/RES/72/282. This is a resolution passed at the initiative of the Moldovan government, calling on the ‘complete and unconditional withdrawal of foreign military forces from the Republic of Moldova’ (i.e. from Transnistria). 59 ibid. In this sense, note that the resolution does not mention at all the term of ‘occupation’. 60 Ilașcu and Others v the Republic of Moldova and Russia (n 22) paras 344-345. 61 See e.g. UNSC Res 884 (12 November 1993) UN Doc S/RES/884.

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to implement the principle of non-recognition pursuant to the creation of the TRNC ‘by

secessionist acts’, which were condemned as ‘illegal and invalid’,62 as well as the unlawfulness

of the use of force by Turkey in support of the secession, the northern part of the Cypriot island

has been mainly viewed through the lens of regime illegality.63 Notwithstanding, a number of

UNGA resolutions have referred to the TRNC as ‘territory […] occupied by foreign forces’64 and

the ECtHR, in its Loizidou v. Turkey judgment, has also referred to ‘the occupation of the northern

part of Cyprus by Turkish troops’.65 As for the Abkhaz and South Ossetian territories, various

international or regional organizations and, in particular, their deliberative or parliamentary bodies

have either specifically depicted the two regions as ‘occupied territories’ (e.g. the European

Parliament)66 or, at the very least, have hinted at the occupation by Russia of the two NRS (e.g.

CoE Parliamentary Assembly and UNGA).67

Strategically, the go-to story of the parent States makes much sense if one takes into

consideration the far-reaching legal implications of qualifying a factual situation as an occupation.

Firstly, as already mentioned, since the three competing narratives depicted here relate, in fact,

to a sovereignty dispute, it is important to note that the main rules of the law of occupation clarify,

in no uncertain terms, that the occupant does not acquire sovereignty over the occupied territory,

that it must respect the laws in force in the territory, and that it cannot make changes that would

outlast the occupation, which is by its very essence a provisional situation.68 Secondly, since the

authority exercised by an occupying power inherently implies responsibility and accountability for

potential breaches of either international humanitarian law (IHL) or IHRL,69 the ‘occupation’

narrative aids the parent State in aptly confining its responsibility vis-à-vis a territory that it

arguably no longer controls. Thirdly, as pointed out by Bruno Coppieters, ‘the negative

connotation of the concept of occupation in common political usage is beneficial for counter-

secession policies’.70 Indeed, consider for instance that the ‘occupation’ framework tips the

balance of the moral discourse in favour of the parent State, contributes to the shaping of a non-

62 See e.g. UNSC Res 550 (11 May 1984) UN Doc S/RES/550. 63 Yaël Ronen, Transition from Illegal Regimes under International Law (CUP 2011) 61-67. 64 For instance, see UNGA Res 34/30 (20 November 1979) UN Doc A/RES/34/30. 65 Loizidou v Turkey (n 29) para 54. 66 ‘European Parliament resolution of 14 June 2018’ (n 21). 67 CoE Parliamentary Assembly, ‘Humanitarian needs and rights of internally displaced persons in Europe’, Resolution 2214 (2018) para 7. See also UNGA Res 73/298 (4 June 2019) UN Doc A/RES/73/298. 68 Mainly, the obligations of an occupying power are spelled out in Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) 187 CTS 227, Regulations: arts 42-56 and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 arts 27-34 and 47-78. 69 On the applicability of both IHL and IHRL in situations of military occupation see primarily Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) 9 July 2004, ICJ Rep 2004 para 106 and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Judgment) 19 December 2005, ICJ Rep 2005 para 216. See also generally Noam Lubell, ‘Human Rights Obligations in Military Occupation’ (2012) 94 IRRC 317. 70 Coppieters (n 5) 352.

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recognition policy towards NRS, and may likely limit any status-related negotiations to models of

reintegration within the parent State.71

Apart from the obvious strategic benefits for the parent States, the ‘occupation’ narrative adds ‘a

new layer of complications’ in the form of either political or legal constraints on the international

community’s potential engagement with NRS,72 including with respect to humanitarian and

development aid and assistance and the promotion and protection of human rights by

international and regional bodies. With respect to this aspect, the Venice Commission has

observed in its commentary on Georgia’s ‘Law on Occupied Territories’, that the use of the

concept of ‘occupation’ and the restrictions consequently imposed on access to Abkhazia and

South Ossetia could deteriorate the ‘humanitarian situation’ of those living there, causing

‘unnecessary hardship’ and, if applied to personnel of international organizations, render the

provision of humanitarian aid more difficult.73 This view has also been echoed by the UN High

Commissioner for Human Rights in the 2017 annual report before the UN Human Rights Council,

where he noted that the ‘Law on Occupied Territories’, together with the ‘Law on the order of entry

into and exit from Abkhazia’, have imposed additional restrictions on ‘the already limited access

and activities of international governmental […] organizations in the area’, further hindering the

access of technical human rights missions or special procedures of the Council to these areas for

the purpose of undertaking a comprehensive assessment of the human rights situation therein.74

A categorical determination of whether the factual situation in NRS complies with the legal

definition of the concept of ‘occupation’ is beyond the scope of this paper, as this is an arguably

complex, if not impossible exercise that would entail a highly technical and extremely lengthy

analysis of the facts on the ground in each and every one of these breakaway regions. However,

a brief assessment of the indeterminacy of the legal merits of the ‘occupation’ narrative and its

restrictive nature when used as a blanket framework of analysis in the context of NRS conforms

to the paper’s purpose. To begin with, under IHL, ‘[t]erritory is considered occupied when it is

actually placed under the authority of the hostile army. The occupation extends only to the territory

where such authority has been established and can be exercised’.75 As observed by Tristan

Ferraro, while this definition is ‘somewhat vague’, one can nevertheless identify its constitutive

elements for the purpose of determining the existence of an occupation, which is always ‘based

on the prevailing facts’ on the ground, and not the ‘subjective perception’ of the various parties

involved.76 At the core of the concept of ‘occupation’, underlying the idea of ‘authority’ in the Article

42 of the 1907 Hague Regulations definition, is the concept of ‘effective control’.77 Indeed, ‘under

IHL, there cannot be occupation of a territory without effective control exercised therein by hostile

71 ibid, 352-353. 72 ibid, 353-355. 73 See ‘Opinion on the Law of Occupied Territories of Georgia’ (n 6) para. 18. 74 UNHRC, ‘Report of the United Nations High Commissioner for Human Rights on cooperation with Georgia’ (17 August 2017) UN Doc A/HRC/36/65 paras 27-38. 75 1907 Hague Convention (n 68), Regulations: art. 42. 76 See Tristan Ferraro, ‘Determining the Beginning and End of an Occupation under International Humanitarian Law’ (2012) 94 IRRC 133, 134-135. 77 See, among other authorities, Yoram Dinstein, The International Law of Belligerent Occupation (CUP 2009) 42-43.

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foreign forces’.78 In this sense, Ferraro has identified the three constitutive elements of the notion

of ‘effective control’ as used in this context which, in his view, favoured by this paper’s author as

well, test the existence of an occupation: first, there must be an unconsented-to physical presence

of foreign military troops in the territory in question; second, these foreign forces should have the

ability to exercise authority therein to the exclusion and in lieu of the local government; third, ‘the

effective local government’ in control at the time of the military invasion must be rendered

incapable to exert its powers anymore.79 The ECtHR’s judgment in the Chiragov case, which also

concerned the question of Armenia’s effective control over the territory of Nagorno-Karabakh,

basically confirmed Ferraro’s conclusions by stating, under the judgment’s section on relevant

international law, that ‘occupation is considered to exist’ only if ‘the presence of foreign troops,

which are in a position to exercise effective control without the consent of the sovereign’ can be

shown.80 However, as observed by Judge Ziemele in her separate opinion, ‘[t]here is no further

reference to these international texts in the Court’s assessment. The proposed legal weight of the

reference to the documents regulating belligerent occupation is not at all clear’.81 To my mind, the

comment made by Judge Ziemele, even if unwittingly, reflects the indeterminacy of the

‘occupation’ narrative in the context of NRS.

Conceding that, as asserted by Aeyal Gross, indeterminacy is ‘a core component’ of the law of

occupation,82 it is argued here that this is even more so when the notion of ‘occupation’ is used

to describe NRS. Unquestionably, in these specific circumstances, indeterminacy is inherent in

both the discourse of the various relevant actors and the definition of the concept as applied to

the facts on the ground. In this respect, Gross also contends that the ambiguousness of the

concept of ‘occupation’ broadly reflects the ‘sovereignty v. occupation dichotomy’.83 However,

contrarily to the classic scenario, in which such a division concerns two relevant but mutually

opposed (State) actors – the sovereign-title holder and the occupying power –, in the context of

NRS, this dichotomy becomes, in fact, a trichotomy. Under this additional story-line, a third (non-

state) actor enters the picture and, by using the language of international law,84 asserts as its own

the allegedly occupied territory, thus adding even more indeterminacy in the mix. In these

circumstances, should claims to independence based on (admittedly sometimes flimsy)

arguments of ‘self-determination and popular will’,85 as well as a purported right to remedial

secession be completely ignored in favour of an absolute consideration of the ‘occupation’

narrative? Moreover, can these entities, who have enjoyed a long and relatively stable existence,

becoming increasingly independent and building State-like structures that govern territories and

people to the exclusion of the internationally recognized sovereigns be automatically reduced to

the status of occupied territories? This paper maintains that they should not and cannot. In

addition, going back to Ferraro’s proposed test, which essentially embodies three cumulative

78 Ferraro (n 76) 140. 79 ibid, 155. 80 Chiragov and Others v Armenia (n 27) para 96. 81 ibid, Partly concurring, partly dissenting opinion of Judge Ziemele para 3. 82 Aeyal Gross, The Writing on the Wall: Rethinking the International Law of Occupation (CUP 2017) 53. 83 ibid, 55. 84 See generally Hamid & Wouters (n 24) on the arguments for and against unilateral secession in the case of NRS. 85 Caspersen, ‘From Kosovo to Karabakh’ (n 24) 69.

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criteria that circumscribe the existence of an occupation, the legal merits of the ‘occupation’

narrative in the context of NRS are rendered shaky, at best. First, with respect to the issue of

‘boots on the ground’ as a result of a military invasion, apart from the TRNC which, at least prima

facie conforms to the traditional scenario of occupation, that is to say the 1974 Turkish invasion

and the subsequent stationing of more than 30 000 military troops on active duty throughout the

northern part of the island,86 the other NRS are marked by a high-level of indeterminacy under

this aspect. Take Transnistria’s example, where the former 14th Army – at that time a unit of the

Soviet Army – had been headquartered in Chișinău since 1956 and therefore already present in

the territory when Transnistria declared its independence in 1990 and during the ensuing armed

conflict in 1991-1992 between Moldovan security forces and the secessionists in Transnistria.

Whereas the evidence shows that the 14th Army indeed lend substantial support to the

Transnistrian separatists,87 there was no invasion per se by Russia with the purpose of

establishing effective control over the territory.88 One can identify a similar indeterminacy in

relation to the alleged occupation of Nagorno-Karabakh by Armenia, since even the UNSC

resolutions issued during the Nagorno-Karabakh war refer, rather ambiguously, to the ‘tensions

between the Republic of Armenia and the Azerbaijani Republic’,89 and to the invasion of various

areas surrounding Nagorno-Karabakh by ‘local Armenian forces’,90 and not the Armenian State’s

army.91 Second, having due regard to the independence and sovereignty claims made by local

authorities in NRS, the identity of the ‘effective local government in place at the time of the

invasion’92 is unquestionably also marred by indeterminacy. Indeed, is it the de jure government

or the de facto government who is entitled to consent to the presence of foreign troops,93 and is

it actually the purported occupiers who exercise control to the detriment of the de jure government,

or is authority in fact discharged by the de facto governments in place in NRS who may or may

not have the right to consent to the presence of a foreign army? As to the first point regarding

consent, apart from the issues just discussed concerning the accurateness of the invasion by an

occupying power scenario, even when factually true, such as in the case of the TRNC, the

question of who is entitled to consent to the presence of foreign forces is raised every time Turkey

points to the fact that the de facto authorities in Northern Cyprus have consented to the presence

of Turkish troops.94 As to the second point, concerning the exercise of authority, the conundrum

was also noted by the Independent International Fact-Finding Mission on the Conflict in Georgia

in its assessment of the occupation by Russia of parts of Georgia in the immediate aftermath of

the 2008 hostilities, including Abkhazia and South Ossetia which, noteworthily, had declared

independence from Georgia more than a decade before. More specifically, the Mission’s report

observed that the law of occupation could apply in ‘all the areas where Russian military actions

86 See e.g. Loizidou v. Turkey (n 29) para 16. 87 For a background of the conflict and the involvement therein of the 14th Army, see Ilașcu and Others v the Republic of Moldova and Russia (n 22) paras 42-110. 88 ibid, Dissenting Opinion of Judge Kovler, who also makes the same point. 89 UNSC Res 884 (n 61). 90 UNSC Res 882 (30 April 1993) UN Doc S/RES/882. 91 For a similar view on said indeterminacy see Chiragov and Others v Armenia (n 27), Partly concurring, partly dissenting opinion of Judge Ziemele para 4. 92 Ferraro (n 76) 155. 93 ibid, 153. According to the author, this entitlement could also pertain to the de facto government if the facts on the ground confirm its effectiveness. 94 Loizidou v Turkey (n 29) para 51.

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had an impact on protected persons and goods’, but that ‘the extent of control and authority

exercised by Russian forces may differ from one geographical area to another’, being ‘possibly

looser in the territories of South Ossetia and Abkhazia administered by the de facto authorities’.95

To the Mission, the substitution of authority for determining the existence of an occupation was

only evident in areas ‘where before the conflict the Georgian forces and administration had

exercised control’,96 that is, in areas adjacent to Abkhazia and South Ossetia occupied as a result

of the five-day war, and not in the two NRS that had had a de facto existence much before the

conflict in question. The same optic as to the identity of the actors in control of these areas can

be read in the 2017 annual report of the UN High Commissioner for Human Rights before the UN

Human Rights Council, where ‘[t]he loss of effective control by the central Government of Georgia

over Abkhazia and South Ossetia’ was observed, together with ‘the persistent denial of access

by the authorities in control of those regions’,97 and the fact that the ‘authorities in control’ in

Abkhazia and South Ossetia – note here the lack of any reference to Russia as an occupier – had

invoked status-related matters in response to letters sent by the High Commissioner’s office

seeking access to the two NRS.98 There is, therefore, a great level of vagueness in each of the

three criteria that, according to Ferraro, test the legal merits of the ‘occupation’ narrative.

Evidently, it is hard to completely ignore the fact that de facto authorities claiming independent

statehood and exhibiting a sophisticated exercise of domestic sovereignty have long-existed in

these supposedly occupied regions. Indeed, as pointed out by Leonard Hammer, even the TRNC,

which could arguably be defined as an occupied territory, at least in the aftermath of the 1974

invasion by Turkey, has progressively developed into an entity that ‘operates in an autonomous

fashion, despite maintaining links to the Republic of Turkey’.99

In view of the aforementioned, the added value of the ‘occupation’ narrative for the protection of

human rights in NRS remains unclear. Indeed, as previously highlighted, under this framework,

the ‘occupied’ population would arguably be protected under both IHL and IHRL,100 thus solving

the issue of human rights guardianship by placing the entire responsibility in the hands of the

purported occupier. In this sense, IHRL extends to the occupied territory by virtue of the

relationship between the authority or effective control exercised by the military troops of the

alleged occupying State and the territorial control usually required for the extraterritorial

application of IHRL.101 In addition, it has also been suggested that, under an occupation, it is the

entire spectrum of human rights obligations that a State would be normally obliged to observe

that applies.102 However, as previously seen here, the alleged occupying powers – i.e. Armenia,

Russia and Turkey – fundamentally deny having this status and, accordingly, the responsibility

normally attached to it under both IHL and IHRL. Moreover, given the arguably weak legal merits

95 Independent International Fact-Finding Mission on the Conflict in Georgia (n 14) 311. 96 ibid. 97 ‘Report of the United Nations High Commissioner for Human Rights on cooperation with Georgia’ (n 74) para 34. 98 ibid, paras 26-28. 99 Leonard Hammer, ‘Re-Examining the Extraterritorial Application of the ECHR to Northern Cyprus: The Need for a Measured Approach’ (2011) 15 IJHR 858, 865-866. 100 See above (n 68) and (n 69). 101 Lubell (n 69) 317 and 320-324. See also Ronen, ‘Human Rights Obligations’ (n 17) 28. 102 ibid, 323-324. See also Legal Consequences of the Construction of a Wall (n 68) para 112.

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and the extent of indeterminacy inherent in the ‘occupation’ narrative in the context of NRS, two

follow-up questions and a logical conclusion ensue: first, the issue of the ability of the purported

occupying power to discharge its duties under IHRL when it does not – or at least not exclusively

– exercise authority and effective control in the NRS in question; second, the issue of enforcement

of IHRL at the international level in light of the legal ambiguity – noted here even among the

different organs and bodies of international and regional organizations – surrounding the

applicability of the concept of ‘occupation’ to the breakaway regions discussed here; finally, the

arguably logical conclusion that, in these circumstances few, if any, benefits for the protection of

human rights in NRS can be derived from the ‘occupation’ narrative. However, military occupation

is not the only situation where the concept of ‘effective control’ may trigger the applicability – either

extraterritorial or territorial, as we shall see below – of IHRL obligations.

5. The ‘sponsorship’ framework: between the ‘effective control’ of the patron

State and the independence of de facto authorities

In the case of Ilașcu and Others v the Republic of Moldova and Russia, concerning the sentencing

to death of the applicants by the de facto authorities in Transnistria, as well as allegations of

torture and illegal deprivation of liberty at their hands, the ECtHR was tasked, as a necessary

prerequisite to any potential finding of a violation on the part of the respondent States, to carefully

assess whether the applicants, who were inhabitants of the breakaway region of Transnistria,

came in fact under the jurisdiction of either Moldova – that is, the parent State – or Russia –

namely, the alleged occupying power under the narrative described in the previous section – in

line with the provisions of Article 1 of the European Convention on Human Rights (ECHR or the

Convention), which mandates that ‘[t]he High Contracting Parties shall secure to everyone within

their jurisdiction the rights and freedoms’ enshrined in the Convention.103 Upon ratifying the

Convention some parent States, like Azerbaijan or Moldova,104 have declared their inability to

ensure the application of the ECHR ‘in the territories occupied by the Republic of Armenia’105 or

‘in respect of omissions and acts committed by the organs of the self-proclaimed Trans-Dniester

republic within the territory actually controlled by such organs’106 – note here that each parent

State adheres to a different narrative. However, the general position of the ECtHR is that the

Convention applies throughout the entirety of a Contracting State’s territory,107 unless the

presumption of jurisdiction can be clearly rebutted.108 In the Ilașcu judgment, the ECtHR held that

103 European Convention for the Protection of Human Rights (n 43) art 1. 104 Georgia, on the other hand, did not make a specific declaration or reservation with respect to its two breakaway regions. 105 CoE, Reservations and Declarations for Treaty No. 005 - Convention for the Protection of Human Rights and Fundamental Freedoms, Republic of Azerbaijan, Declaration contained in the instrument of ratification deposited on 15 April 2002 Or. Mol./Fr. 106 CoE, Reservations and Declarations for Treaty No. 005 - Convention for the Protection of Human Rights and Fundamental Freedoms, Republic of Moldova, Declaration contained in the instrument of ratification, deposited on 12 September 1997 Or. Mol./Fr. 107 Cullen and Wheatley (n 53) 702. 108 See Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) paras 137-143.

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‘[t]his presumption may be limited in exceptional circumstances, particularly where a State is

prevented from exercising its authority in part of its territory’.109 The Court then proceeded to give

the arguably prime example of such an exceptional circumstance which, in its words, ‘may be as

a result of military occupation by the armed forces of another State which effectively controls the

territory concerned’, citing in this respect the Loizidou case where, as seen above, the ECtHR

had held Turkey responsible for human rights violations in the territory on the basis of the ‘effective

overall control’ exercised by its army therein.110 Noteworthily, two other examples of such

‘exceptional circumstances’ that could remove the presumption of jurisdiction were advanced by

the Court, namely ‘acts of war or rebellion’ and, more importantly here, ‘the acts of a foreign State

supporting the installation of a separatist State within the territory of the State concerned’.111 The

fact that the third example can be separated from the first one, namely belligerent occupation, is

further confirmed in the judgment when the Court states that

‘[W]here a Contracting State is prevented from exercising its authority over the

whole of its territory by a constraining de facto situation, such as obtains when

a separatist regime is set up, whether or not this is accompanied by military

occupation by another State (emphasis added), it does not thereby cease to

have jurisdiction within the meaning of Article 1 of the Convention over that part

of its territory temporarily subject to a local authority sustained by rebel forces

or by another State.’112

Having regard to the aforementioned, while conceding that Moldova does not exercise authority

or control over Transnistria, the Court nevertheless refused to fully rebut the premise of jurisdiction

on behalf of Moldova, reducing it instead to an arguably residual positive obligation under the

ECHR ‘to take [the] diplomatic, economic, judicial or other measures’ in the parent State’s power

‘to secure to the applicants the rights guaranteed by the Convention’.113 As to the second

respondent, the ECtHR found that the applicants in question came within Russia’s extraterritorial

jurisdiction on account of ‘the military and political support’ it gave to the separatist region. More

precisely, according to the Court, since the Russian Federation arguably ‘contributed both

militarily and politically to the creation of a separatist regime in the region of Transdniestria’, its

responsibility had to be ‘engaged’ in relation to the human rights breaches that had been

committed by the Transnistrian separatists.114

In light of the statements made regarding the exceptional circumstances that would prevent a

State from exercising its authority in parts of its territory, as well as the reasons advanced with

respect to the responsibility of Russia, it seems that, at least indirectly, the Court here endorses

109 Ilașcu and Others v the Republic of Moldova and Russia (n 22) para 312. 110 ibid. See also Loizidou v Turkey (n 29) para 56. 111 Ilașcu and Others v the Republic of Moldova and Russia (n 22) para 312. 112 ibid, para 333. 113 ibid, paras 330-335. For a critical view of these so-called residual positive obligations, see generally Marko Milanović and Tatjana Papić, ‘The Applicability of the ECHR in Contested Territories’ (2018) 67 ICLQ 779. 114 Ilașcu and Others v the Republic of Moldova and Russia (n 22) para 382. For a similar conclusion in another judgment concerning events occurring in Transnistria, see Ivanțoc and Others v the Republic of Moldova and Russia App no. 23687/05 (ECtHR, 15 November 2011) paras 118-119.

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the so-called ‘sponsorship’ narrative or framework, whereby the alleged occupying power is seen

more as a sponsor rather than as an occupier. Indeed, in the words of Judge Georg Ress in his

separate opinion, ‘there is no occupation of the Transdniestrian territory, even though there is a

rebel regime and the Russian Federation exercises a decisive influence and even control in that

territory’.115 In the same vein, in the case of Chiragov and Others v. Armenia, a case concerning

for the most part the breach of the property rights of Azerbaijani citizens displaced by the conflict

in Nagorno-Karabakh, the ECtHR held that the applicants came within the extraterritorial

jurisdiction of Armenia as a consequence of the ‘significant and decisive influence’ that it

exercises over Nagorno-Karabakh and the fact ‘that the two entities are highly integrated in

virtually all important matters’ to the extent that the de facto administration in Nagorno-Karabakh

survives ‘by virtue of the military, political, financial and other support given to it by Armenia which,

consequently, exercises effective control over Nagorno-Karabakh’.116 Albeit the Court, in this

judgment, frequently mentions the concept of ‘occupation’ and even makes reference to the law

of occupation as relevant international law (without any follow-through, however),117 it appears

that it ultimately views Armenia as a sponsor and not an occupier, since it makes no categorical

determination in this respect when ruling on its effective control over Nagorno-Karabakh. Here,

as correctly explained by Marko Milanović, the ECtHR appears to consider that the analysis

undertaken concerning Armenia’s extraterritorial jurisdiction over Nagorno-Karabakh, which

essentially refers to its effective control over the territory of the breakaway region,118 satisfies the

purpose of assigning responsibility to the patron State for human rights breaches committed by

an NRS that claims to be independent from it, without actually examining that State’s control over

the NRS as a separate actor or the actor’s activities leading to the wrongful act under the relevant

international rules of State responsibility.119

Having regard to the aforementioned, this paper further contends that, under the ‘sponsorship’

narrative, a conclusion that a sponsor’s extraterritorial jurisdiction blanketly extends to the territory

of the NRS it sponsors by virtue of its alleged effective control over that territory, without an

evaluation of the actual control it exercises over the NRS in question and, more precisely, over

the specific conduct constituting a breach of human rights, is ultimately based on the same faulty

premise as that of the ‘occupation’ narrative, in that it fails to take into consideration the fact that

it is often the de facto authorities in NRS that exercise effective control over the territories they

claim as their own, admittedly with the frequent support of their sponsor, which means that they

may very well either act autonomously or, at times and depending on the circumstances, under

the control of their patron State. At this point, it is further relevant to mention that the ECtHR has

frequently been criticized on the one hand, for unjustifiably conflating the concepts of jurisdiction

and responsibility in its analyses and, on the other hand, for using different and visibly less

stringent standards for the attribution of responsibility for wrongful acts than those established

115 Ilașcu and Others v the Republic of Moldova and Russia (n 22), Partly Dissenting Opinion of Judge Ress para 3. 116 Chiragov and Others v Armenia (n 27) 186-187. 117 ibid, paras 58-86 and 96-97. See also (n 81) and corresponding text. 118 ibid, para 168 on general principles on extraterritorial jurisdiction in the Court’s jurisprudence. 119 Marko Milanović, ‘The Nagorno-Karabakh Cases’ (23 June 2015) <https://www.ejiltalk.org/the-nagorno-karabakh-cases/>.

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under international law.120 As to the former, Milanović has critically examined the manner in which

the ECtHR has confused the two concepts, in particular in Loizidou or Ilașcu – two cases that

directly interest this paper – by using imprecise terminology such as the ‘responsibility of

Contracting States’ ‘under Article 1’,121 or by stating that the responsibility of a State is ‘engaged’

by virtue of the support it provides to an NRS,122 making it thus hard to understand whether the

Court in fact believed that the wrongful conduct of the local authorities in the TRNC and

Transnistria was directly attributable to Turkey and Russia, or whether the two patron States were

held responsible for their own failing to prevent such conduct by third parties by virtue of their

alleged effective control over the territories in question.123 With respect to the latter, the issue was

also criticized from the inside, so to speak. Indeed, in her separate opinion to the Chiragov

judgment, Judge Ziemele indicated that, ‘[u]nlike the particularly scrupulous establishment of the

facts’ generally undertaken by the International Court of Justice (ICJ) ‘in cases concerning

disputes over territories, jurisdiction and attribution of responsibility’, the ECtHR seems ‘to be

watering down certain evidentiary standards in highly controversial situations’,124 affirming at the

same time that, particularly ‘in this category of cases’, ‘a proper attribution of responsibility test’

should be carried out.125 In the same vein, it is submitted here that, in the context of breaches of

human rights in or by NRS, under the so-called ‘sponsorship’ framework which concedes, on the

one hand, that NRS generally survive because of the support of their patron States and that, on

the other hand, they also have the capacity to act independently, the wrongful conduct could only

be attributed to the patron State under the two control tests established under international law.

More precisely, it must first be determined whether the NRS in question is completely dependent,

in all its activities, on its patron State and whether the latter ‘actually […] made use of the potential

of control inherent in that complete dependence’. Under this so-called ‘strict control’ test, if the

aforementioned conditions are met, the NRS will be equated to a ‘de facto organ’ of its sponsor,

with the NRS’ ‘conduct as a whole’ then potentially being attributed to it.126 However, since there

is arguably little evidence to support the idea of such ‘complete dependence’ as far as de facto

authorities in NRS are concerned127 – consider, for instance, that as I write this paper there are

elections taking place in Abkhazia, which are seen by some commentators as independent –,

recourse should subsequently be had to the ‘effective control test’, which is described as a

‘subsidiary test’ by Stefan Talmon and refers to control over an entity’s activities and not the entity

per se or the breakaway territory, being thus unquestionably the suitable control test under the

‘sponsorship’ framework as it leaves room for the very real possibility that an NRS would also act

independently. According to this test, the de facto authorities in question must only be partially

120 ibid. See also ‘Draft Articles on Responsibility of States’ (n 54). 121 Loizidou v Turkey (n 29) paras 49-57. 122 Ilașcu and Others v the Republic of Moldova and Russia (n 22) para 382. 123 On the conflation of the two concepts and the ambiguousness of the Court’s analysis, see generally Marko Milanović, Extraterritorial Application of Human Rights Treaties (OUP 2011) 41-53. 124 Chiragov and Others v Armenia (n 27), Partly concurring, partly dissenting opinion of Judge Ziemele, para 5. 125 ibid, para 12. 126 Talmon (n 31) 498-520 and Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia) (Judgment) 11 July 1996, ICJ Rep 1996 and Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) (Merits, Judgment) 27 June 1986, ICJ Rep 1986, as cited in Talmon. 127 See e.g. Milanović, ‘The Nagorno-Karabakh Cases’ (n 119).

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dependent on their respective patron State to create ‘potential for control’ and the resultant

possibility for responsibility to be attributed for ‘specific conduct’ on a case by case basis.128

Arguably, these tests are much more stringent than concepts such as ‘effective overall control’

‘military and political support’ or ‘significant and decisive influence’, which have been used by the

ECtHR in the cases discussed here to paint the sponsors as guardians of human rights in NRS.

Conceding that these human rights friendly judgments have come to partially fill ‘a regrettable

vacuum in the system of human rights protection in the territory’,129 it is further argued here that

the normative position of NRS from the perspective of human rights protection, at least under the

‘sponsorship’ framework discussed here, cannot be entirely understood in terms of the

responsibility of the patron State – and, as seen above in Ilașcu, the parent State sometimes –

,130 since the relationship of dependence and control between the two may very well follow a

curved path in which, at certain points in time, it either strengthens or weakens to a degree where

it no longer meets even the subsidiary standard for the attribution of an internationally wrongful

conduct.131 Moreover, since de facto authorities in NRS also have the potential of acting as

independent actors, and in light of the fact that ‘independence does not mean exclusivity of

control’, the responsibility of both actors could be very well established.132 However, the problem

in this scenario is that, as a matter of positive international law, we have yet to create an

international responsibility regime that would hold entities such as the NRS discussed here

accountable for breaches of human rights or, for that matter, other wrongful conduct.

Admittedly, IHRL was designed to restrain the use of power against those subjected to that power.

In other words, to ‘protect the citizen against the omnipotent [S]tate’.133 This is why it applies first

and foremost to States as the traditional keepers of public power.134 Yet, as Lauterpacht noted,

‘[i]n modern times, this is not the only source of oppression or denial of human rights’.135 Non-

state actors are increasingly emerging as potent new players on the international plane and,136 at

times, these actors may even exert powers similar to those of the State. Indeed, consider the

interim administration of territories by IOs137 or the various governance structures created by

some non-state armed groups, such as Hezbollah. As opposed to these actors, the NRS

discussed here showcase a rather sophisticated State-like apparatus and exert effective control

over territory and populations. Consequently, they have the power to influence the lives of millions

128 ibid, 502-504. 129 Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001) para 78. 130 See also Cullen and Wheatley (n 53) 706. 131 For example, Abkhazia is much more independent vis-à-vis Russia than South Ossetia or Transnistria. See in this sense Andras Racz, ‘The Frozen Conflicts of the EU’s Eastern Neighborhood and Their Impact on the Respect of Human Rights’ (European Parliament Study, April 2016) 20. 132 Ronen, ‘Human Rights Obligations’ (n 17) 28. 133 Manfred Nowak and Karolina Januszewski, ‘Non-State Actors and Human Rights’ in Math Noortmann, Cedric Ryngaert, and August Reinisch (eds) Non-State Actors in International Law (Hart 2015) 116. 134 ibid. See also Andrew Clapham, ‘Old Objections and New Approaches’ in Andrew Clapham (ed) Human Rights and Non-State Actors (Edward Elgar 2013) 57. 135 Hersch Lauterpacht, ‘Report to the International Law Association: Human Rights, the Charter of the United Nations, and the International Bill of the Rights of Man’ (12 May 1948) UN Doc E/CN.4/89 para 8. 136 Nowak and Januszewski (n 133) 114. 137 ibid 115.

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of people in a myriad of ways – they may use force, detain people, confiscate their property,

impose restrictions on freedom of speech, or conduct trials. They are both the guardians and the

offenders of human rights in these regions. And yet, with States as the main addressees of

international human rights instruments, the human rights system has excluded them from its

midst, with the effect that the de facto authorities in NRS commonly evade accountability for their

acts. Nevertheless, as noted by Adam McBeth almost a decade ago, IHRL’s nearly exclusive

attention on States as obligation-holders ‘does not necessarily preclude the possibility that there

might also be other entities with legal responsibilities for the realization of human rights under

international law’.138 After all, the preamble of the UDHR is expansively addressed to ‘every organ

of society’,139 and not only States.

The attribution of IHRL obligations directly to NRS essentially depends, however, on the

acquisition of international legal personality, a construct that enables an entity – State or otherwise

– to become an addressee of international law.140 In one of its earliest advisory opinions, the ICJ

held that a subject of international law must be ‘capable of possessing international rights and

duties’ and emphasized, at the same time, the flexible character of international legal personality,

in that ‘[t]he subjects of law in any legal system are not necessarily identical in their nature […]

and their nature depends on the needs of the community’.141 In this sense, NRS imitate sovereign

States and, as discussed in this paper, generally fulfil the Montevideo Convention statehood

criteria.142 Indeed, just as States, these entities have identifiable governmental structures that

exercise public functions, as well as ‘control over a specific population in a given territory’.143

Therefore, much as the saying goes, if it looks like a duck, swims like a duck, and quacks like a

duck… then it surely has the capacity, just as the ‘duck’, to possess international obligations under

IHRL.

Moreover, since NRS have effectively removed the authority of their parent States and, therefore,

are ‘not exclusively subject to any superior authority’, they may arguably be regarded as

international persons.144 As to the so-called patron States, Daragh Murray has observed that ‘an

entity may be partially subject to the authority of a superior entity, but still retain its

independence’.145 Appropriately, he then illustrated his arguments by means of an example,

contending that ‘a de facto authority such as the [TRNC] exists independently and as such is

subject to direct international regulation, while at the same time remaining partially subject to

Turkey’s authority.’146 This, unquestionably, is the very essence of the ‘sponsorship’ narrative

discussed here. And yet, apart from the Optional Protocol to the Convention on the Rights of the

138 Adam McBeth, ‘Every Organ of Society: The Responsibility of Non-State Actors for the Realization of Human Rights’ (2008) 30 Hamline J Pub L & Pol’y 33, 63. 139 UDHR (n 41) Preamble. 140 McBeth (n 138). 141 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 178-179. 142 Montevideo Convention (n 13). 143 Daragh Murray, Human Rights Obligations of Non-State Armed Groups (Hart Publishing 2016) 53. 144 ibid 43. 145 ibid. 146 ibid.

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Child, which appears to stipulate certain obligations on behalf of non-state armed groups,147 there

are no international human rights instruments that impose direct obligations on the likes as NRS.

As stated in a report by the UN Assistance Mission in Afghanistan, ‘non-[s]tate actors […] are

increasingly deemed to be bound by international human rights obligations, particularly those

exercising de facto control over some areas, such as the Taliban’.148 Progressively explored by

authors in the field,149 the ‘de facto control theory’ contends that international law applies to non-

state actors that have established effective control ‘in an area beyond the reach of the de jure

authority, thereby generating a legal vacuum’.150 The theory, which is based on the principle of

effectiveness,151 advocates that entities exercising governance functions should be

acknowledged as a matter of ‘practical necessity and pragmatism’.152 Importantly however, the

theory does not imply that NRS must be de jure recognized, but rather that ‘it is their factual

existence that triggers their status under international law’.153 Indeed, as made clear by the ECtHR

in Cyprus v. Turkey:

‘Life goes on in the territory concerned for its inhabitants. That life must be made

tolerable and be protected by the de facto authorities, including their courts;

and, in the very interest of the inhabitants, the acts of these authorities related

thereto cannot be simply ignored by third States or by international institutions,

especially courts, including this one. To hold otherwise would amount to

stripping the inhabitants of the territory of all their rights whenever they are

discussed in an international context, which would amount to depriving them

even of the minimum standard of rights to which they are entitled.’154

Certainly, as a response to the ‘needs of the community’, as well as ‘the requirements of

international life’,155 international law can and should adapt. Acknowledging the possibility to

directly attribute IHRL obligations to NRS would be only a first step in that direction. However,

further research on the topic must necessarily determine first, the specific law applicable to de

facto authorities in NRS, i.e. international customary law156 and/or the international treaty law

binding the parent State whose authority they’ve displaced157 and, to that end, whether de facto

authorities should uphold the entire catalogue of rights and freedoms, or just the most basic ones;

147 Optional Protocol to the Convention on the Rights of the Child (n 42). 148 UN Assistance Mission in Afghanistan and OHCHR, ‘Afghanistan Annual Report 2014: Protection of Civilians in Armed Conflict’ (Kabul, Afghanistan, February 2015) 98. 149 Murray (n 143) 120-131. See also Jochen A Frowein, ‘De Facto Regime’, Max Planck Encyclopedia of Public International Law, para 3. 150 Murray (n 143) 121. 151 See Zappalà (n 40) 105-117. 152 See Michael Schoiswohl, Status and Human Rights Obligations of Non-Recognized De Facto Regimes in International Law: The Case of ‘Somaliland’ (Martinus Nijhoff Publishers 2004) 209-211. 153 ibid 211. 154 Cyprus v Turkey (n 129) para 96. 155 Reparation for Injuries (n 141) 178. 156 For some considerations, see generally Ronen (n 17). 157 Murray (n 143) 134-137.

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and second, in view of the State-centricity of the international human rights system, the adequate

international mechanisms to monitor and help enforce human rights in NRS.

6. Concluding remarks

More than one million people live in the NRS depicted in this paper. However, because of the

competing narratives presented here, which arguably revolve around the question of sovereign-

title over territory, these individuals have become auxiliary to the status of territories they inhabit,

and which should, at least in theory and under the right governance, prioritize their interests and

protect their human rights and freedoms. And yet, the identity of their human rights guardian is

rendered uncertain by the various narratives advanced by the interested actors.

Primarily, the ‘statehood’ narrative advanced by NRS, with all its ensuing effects, including

potential membership to international and regional organizations and human rights treaties and

conventions would be ideal in solving the guardianship conundrum. However, this scenario is

utopic, to say the least, as it hinges on a myriad of conflicting interests and political considerations.

The ‘occupation’ narrative, while bringing to the fore a rather straightforward IHL and IHRL

guardian, is marred by indeterminacy and, in this context, brings few, if any benefits to the

concerned population. The framework of ‘sponsorship’, on the other hand, is probably the most

factually and legally accurate. Indeed, this narrative is in line with the reality on the ground in that

it recognizes the support given to NRS by their respective sponsors, as well as the possibility of

holding them responsible for transgressions under the appropriate international rules, while also

admitting that the de facto authorities in NRS may frequently be independent and, in

consequence, that they may act autonomously and thus be susceptible to being held accountable

for any transgressions. Notwithstanding, if these local authorities are ever to be seen as the

human rights guardians that they very often are, the international community must admit that,

even if short of statehood, NRS should still have some sort of legal existence on the international

plane, in particular in light of the power that they have to adversely impact the human rights of

those they govern.

To conclude, if the international community would indeed want to strike a balance between the

competing narratives presented in this paper, and therefore to fill-in the somewhat empty spot of

guardian of human rights in NRS, the principle of effectiveness as presented under the

‘sponsorship’ framework is probably one of the most suitable instruments it has at its disposal.

Indeed, it is only when de facto situations like those examined here, even arising from potentially

illegal acts, are acknowledged and handled in a manner that ensures the protection of human

rights in NRS,158 will the conundrum presented here ever be solved. However, trusting that the

international community would be willing to leave behind the idea that we live in a world of fully-

sovereign states, where aberrations such as the NRS presented here do not belong, might be

158 Zappalà (n 151) 117

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even more of a fallacy than the idea itself. In this case, more than one million people may probably

have to put their expectations for concrete human rights guardianship on hold indefinitely.

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