Human Rights in Disputed Territories – Affixing Responsibility
“Human rights do not have any borders. It is vital to address underlying human rights issues in disputed territories, regardless of the political recognition or the legal status of a territory” – Navi Pillay.
Under normal circumstances, the responsibility of protecting human rights of persons residing within the territory of a State lies with the de-jure State (and its de-jure government). The problem with regards to the application of human rights law arises in disputed territories where the legitimacy of control over the territory is disputed, thereby creating a protection gap. So how should we affix responsibility for human rights violations in territories which are under the effective control of non-State actors, especially since non-State actors cannot ratify human rights instruments such as the International Covenant on Civil and Political Rights? These questions present a quagmire for a human rights lawyer. This piece suggests the ways in which one could seek to affix responsibility on non-State actors for upholding human rights in disputed territories.
One way to impose responsibility on non–State actors for protecting human rights of people in disputed territories is by arguing, that since human rights norms contained in the Universal Declaration of Human Rights (UDHR) are customary international law, they need to be guaranteed by the authority having effective control of the territory, regardless of its political status internationally.The responsibility to protect these human rights norms which form part of customary international law does not require specific accession to, or ratification of, treaties by concerned authorities.
Another argument could be that since non-state actors have responsibility for human rights violations in International Human Rights Law (IHRL) and International Humanitarian Law (IHL), they ipso facto have responsibility in disputed territories where they have effective control. While Public International Law (PIL) in general has developed in order to regulate the conduct of States in their international relations, IHRL and IHL have developed specific particularities, aimed at imposing certain types of obligations on others, including individuals and non-State actors.
It is generally accepted that IHL related to non-international armed conflicts, in particular the provisions contained in common article 3 of the Geneva Conventions and, when applicable, Protocol II, applies to parties to such a conflict, whether State or non-State armed groups. It is also recognized that rules of customary international law related to non-international armed conflicts, such as the principles of distinction and proportionality, are applicable to non-State armed groups.
Concerning international human rights obligations, the traditional approach has been to consider that only States are bound by them. However, in evolving practice in the Security Council and in the reports of some special rapporteurs, it is increasingly considered that under certain circumstances non-State actors can also be bound by international human rights law and can assume, voluntarily or not, obligations to respect, protect and fulfil human rights. For instance, the Security Council has called in a number of resolutions, such as Resolution 1564 (2004) and Resolution 1894 (2009), on States and non-State armed groups to abide by international humanitarian law and international human rights obligations, though these have been in the context of an armed conflict.
These arguments set a stage to better protect human rights in disputed territories, thereby avoiding their protection gap. It is clear that the international legal order is expanding slowly and human rights will not remain State-centric for long. However in disputed territories today, de-facto State governments can be seen as non-State actors with effective control, and therefore obligated to enforce human rights.