Is There a Protection Vacuum in Contested Territories?

The issue of ‘contested territories’ has become one of the main bones of contention with regard to how the human rights legal framework addresses the violation of human rights extraterritorially. Notably in the European region, case law related to similar entities such as the Turkish Republic of Northern Cyprus, Nagorno-Karabakh, South Ossetia, Abkhazia, Transdniestria, and since 2014 the de facto Peoples’ Republics of Donetsk and Luhansk in eastern Ukraine – has abounded before the European Court of Human Rights (ECHR). The Court has taken the approach of avoiding a legal vacuum in the protection of human rights. This blog highlights the main options explored by the ECHR to establish the jurisdiction of a State for territories which have been occupied, and argues that the category of ‘residual positive obligations’, devised by the Court, does not convince all scholars.

In fact, the ECHR has made clear in Al Skeini that ‘jurisdiction is presumed to be exercised normally throughout the State’s territory’, but a serious doubt arises with this presumption with respect to occupied territories. Essentially, the latter are entities where: a) the central State has encountered problems of military or political nature in continuing to exercise its authority; b) non-State actors provide, to a certain extent, public functions and monopolize the use of force; or c) a third State intervenes through a proxy non-State actor to control the area.

The ECHR has taken two approaches. In its initial approach, it rebutted the jurisdiction of the State which had lost control over the territory, so to avoid any obligation (as found in Cyprus v Turkey): ‘as long as the Republic of Cyprus was unlawfully prevented from exercising its rightful jurisdiction in northern Cyprus, Turkey had “jurisdiction” within the meaning of Article 1 of the Convention and was, accordingly, accountable for violations of the Convention committed in that area’. But since Iliascu, jurisdiction has been limited rather than removed. In fact, the Court held that ‘even in the absence of effective control over the Transdniestrian region, Moldova still has a positive obligation under Article 1 of the Convention to take diplomatic, economic, judicial or other measures […] to secure to the applicants the rights guaranteed’. This decision came to establish the concept of ‘residual positive obligations’, which require a ‘minimum effort […] nevertheless possible’ from the country originally in control of the occupied territory.

This latest approach has been criticized by some authors who consider jurisdiction in a unitary way. This is to say that a State cannot exercise different degrees of jurisdiction. In addition to that, there is no legal basis in the text of the Convention supporting the existence of residual positive obligations. The most recent case revolves around the occupation by non-State actors, financed by Russia, of part of the eastern Ukraine regions of Donetsk and Luhansk. Many questions arise and will demand practical solutions from the Court, such as which residual obligations upon Ukraine – if any – remain in occupied territories, and which ones shift to Russia.

It is too early to predict the direction in which the Court will move towards, in over more than 4,000 individual cases submitted with reference to the conflict in eastern Ukraine. Nonetheless, in 2017 in Khlebik, the ECHR found that Ukrainian authorities ‘have done all in their power under the circumstances to address the applicant’s situation’. Thus, the Court considered Ukraine to be still bearing residual obligations, even after the seizure of its eastern territories. Nonetheless, the central question ‘whether Ukraine or Russia has jurisdiction’ is still not resolved.

Notwithstanding the gaps in the human rights’ legal framework and case law, establishing that the State not holding ‘effective control’ nonetheless has jurisdiction – i.e. residual positive obligations – over occupied territories, appears an excessive burden over States that already have endured the loss of a part of their national territory. As previously said, the continuous appearance of contested territories in the post-Soviet Union space, similar to the use of armed drones, continue to add layers of uncertainty to the level of extraterritorial protection of human rights that States must ensure to citizens.