Journal of Turkish Weekly
May 4 2005
Jurisdiction of European Court of Human Rights in conflict areas:
Who’s responsible for violations in Nagorno-Karabakh
Marat Kengerlinsky
School of Politics and International Studies
Queen’s University of Belfast
1. Introduction
One of the oldest and longest conflicts in the post-Soviet area is
the conflict between Azeris and Armenians over the Nagorno-Karabakh
enclave of Azerbaijan. Since the beginning of the conflict two
republics, Armenia and Azerbaijan, as well as the population of
Nagorno-Karabakh itself, were involved in the conflict and suffered a
lot from the appalling consequences of the war. As a result, more
than a million of Azeris and Armenians have become refugees or
displaced persons. “Whenever this striving for autonomy or secession
leads to violence, forced migration is an almost automatic
consequence”.[1] In 1988, neither Armenia nor Azerbaijan had yet
gained their independence from the Soviet Union. The last years of
the communist era for these two countries were marked by a large
scale of ethnic cleansing and bloodshed. Some of this violence was
encouraged by the “divide and rule” aspirations of the waning Soviet
empire. This initial unrest sparked fierce hostilities that
eventually engulfed Armenia and Azerbaijan, as well as the population
of Nagorno-Karabakh itself. The fighting took the lives of about
30,000 people and lasted until 1994, when the two sides reached a
cease-fire agreement. In the end of military operations, Armenian
army managed to control not only the territory of Nagorno-Karabakh,
but also six adjacent Azeri provinces. Since 1994, mutual
negotiations with participation of foreign governments and
international organisations, such as the OSCE and the COE, have
continued, however, little progress has been made to reach any final
solution. At the moment, Nagorno-Karabakh is a mono-ethnical enclave
inhabited by Armenians and the Azeri Government has no power and
control over this disputed area. On the other hand, until the future
status of Nagorno-Karabakh is determined, the people of
Nagorno-Karabakh remain formally the citizens of Azerbaijan
The purpose of this paper is not to discuss the political
implications of the conflict, but to look into some legal questions,
which arise in connection with Azerbaijan’s exercise of jurisdiction
over the territory, which de facto is segregated from it. As a matter
of fact, Azerbaijan has been recognised and accepted by international
community with its contemporary borders, as appeared after the
disintegration of the Soviet Union. In 1992, it became a member of
the UN and, in 2001 joined the Council of Europe. Observing the
conditions of accession, on 15 April 2002 Azerbaijan ratified the
European Convention on Human Rights (hereinafter, the European
Convention) and, thus, accepted certain commitments and obligations
pertaining to international human rights law. Since then, every
citizen of Azerbaijan can rely on the system of human rights
protection in Europe and lodge a complaint about his or her infringed
rights to the European Court of Human Rights in Strasbourg
(hereinafter, the European Court). How shall the citizens of
Nagorno-Karabakh complain and who is responsible for violations of
their human rights? The paper seeks to find answers to these
difficult questions.
2. Obligation of the State to respect human rights
Article 1 of the European Convention imposes upon States Parties the
general obligation to guarantee certain human rights and freedoms. It
requires that all States Parties ensure that the rights defined in
the European Convention are enshrined in their own legal system.
States Parties have, in fact, chosen to implement its guarantees by
different methods, according to their own constitutional
practices.[2] This means that States, first of all, ought to bring
their legislation in line with the European Convention. Moreover,
that legislation must be applied in the way compatible with the
European Conventional standards. As the European Court held, “the
object and purpose of the European Convention as an instrument for
the protection of individual human beings require that its provisions
be interpreted and applied so as to make its safeguards practical and
effective.” [3] It follows then, that all contracting states should,
with certain exceptions allowed by the European Court’s doctrine of
“margin of appreciation”, give more or less identical meaning to the
substantive rights enshrined in the European Convention. Indeed, the
European Court ruled that “any interpretation of the rights and
freedoms guaranteed has to be consistent with the general spirit of
the European Convention, and instrument designed to maintain and
promote the ideas and values of a democratic society”.[4] This
assumption is reinforced by the decision of the European Commission
of Human Rights (hereinafter, the Commission) [5] in Austria v Italy
that stated that “the purpose of the High Contracting Parties was not
to concede to each other reciprocal rights and obligations… but to
realise the aims and ideals of the Council of Europe… and establish a
common public order”.[6]
Here, it should be noted that the wording of Article 1 of the
European Convention differs significantly from other international
human rights instruments. Thus, it says that “the High Contracting
Parties shall secure to everyone within their jurisdiction the rights
and freedoms…”,[7] whereas, for example, Article 2 of the ICCPR
obliges State Parties to undertake “to respect and to ensure to all
individuals… the rights…”[8] The difference between “shall secure”
and “undertake to respect and ensure” is evident. It becomes clearer
in the light of paragraph 2 of Article 2 (ICCPR), which imposes upon
state parties an obligation to “undertake the necessary steps… to
adopt… legislative or other measures as may be necessary to give
effect to the rights recognised in the present Covenant”.[9] The
European Convention does not require states to incorporate its
provisions into domestic legislation.[10] Instead, it obliges them to
immediately implement its human rights provisions.[11]
The importance of Article 1’s purpose is also highlighted by the
prohibition of making reservations of a general nature to the human
rights provisions of the European Convention. Thus, in its judgment
in Loizidou case (1995) the European Court noted that “the power to
make reservations… is limited one, being confined to particular
provisions of the European Convention… In addition, reservations of
a general character are prohibited. The inequality between
Contracting States, which the permissibility of qualified acceptances
might create, would, moreover, run counter the aim, as expressed in
the Preamble to the European Convention, to achieve greater unity in
the maintenance and further realisation of human rights”.[12]
3. Who can complain?
Previously, before Protocol No. 11 [13] came into force, it was
possible for States to ratify the European Convention without
recognising the right of individuals and non-governmental
organisations or group of individuals to lodge an application with
the European Court. States had discretion as to allowing persons
within their jurisdiction to submit individual complaints. After
Protocol No. 11 came into force, certain very significant amendments
were made in the text of the European Convention. Now, when a State
becomes a party to the European Convention, individuals and
non-governmental organisations automatically get the relevant
procedural rights. Therefore, although the wording of Article 1
concerns only the rights defined in Section 1 (articles 2-18), it
seems to be implicit in its concept that States are required to
secure to everyone within their jurisdiction the right to lodge a
complaint with the European Court as well. This assumption is
reinforced by Article 34, which stipulates, inter alia, that “the
High Contracting Parties undertake not to hinder in any way the
effective exercise of this right”.[14]
Unlike other international human rights instruments, the European
Convention does not make the enjoyment of the right to complain to an
international body contingent upon nationality. As the European
Convention noted in the Soering v UK case, “…the State’s obligation
under Article 1 of the European Convention is to ensure the rights
and freedoms defined in Section 1 to every person within its
jurisdiction, regardless of his or her nationality or status”.[15]
Literally, everyone who claims to be ill-treated by the authorities
of a State Party may under certain conditions submit an application
to the European Court. Article 34 enumerates the following: 1)
individuals; 2) non-governmental organisations; and 3) group of
individuals. These are the subjects entitled to file an application
with the European Court. However, it should be noted that the term
“non-governmental organisations” is rather vague and open to various
interpretations. For that reason, perhaps, the European Court has
slightly classified the issue. Thus, it stated that the term
“non-governmental organisations” should not be understood as covering
such institutions as municipalities, other local government
organisations or semi-state bodies.[16]
Here, a question may arise: according to which or, perhaps, even
whose, criteria, is to be decided whether an institution is NGO?
Clearly, the European Court applies its own understanding.
Undoubtedly, it must follow certain rules of interpretation. It is
also well known that the European Court applies the doctrine of
margin of appreciation in cases where the practice of states is
rather diverse. But that concerns certain substantial rights
guaranteed under the European Convention. Here, the issue seems to be
slightly different. The question is: what is meant by NGO? It is not
a question of freedom of association that is concerned in this
context. It is a matter of who is entitled to submit to the European
Court an application.
The issue of defining NGOs has long been a problematic one in
Azerbaijan. It should be clear which institutions might apply to the
European Court. For example, will private universities or trade
unions be entitled to lodge a complaint with the European Court,
despite they are not deemed by Azeri laws to be NGOs? [17] While it
is clear that state universities do not fit in the concept of NGO,
whether private ones do is a question open to mutually contradicting
interpretations. However, the European Court accepts applications
from newspapers, which are also not regarded as NGO by Azeri
laws.[18] Therefore, one can conclude that there is no legal obstacle
for the European Court to accept applications from, say, private
universities or trade unions. In short, it is for the European Court
to decide whether a particular organisation is NGO for the purpose of
Article 34 and the Government of Azerbaijan will not be able to apply
its own legal definition.
It has long been a query for theorising whether a public/private
distinction in law affects state’s obligation under the European
Convention. It goes without saying that complaints must be directed
against a state, namely the alleged violation should be caused by
state bodies. It is a state’s obligation after all to secure the
rights. However, it is perfectly possible to complain against private
persons or institutions, where state’s obligation was positive in
nature.[19] In other words, what is complained of, is state’s
inaction where it should have acted. As the European Court noted:
“…the state cannot absolve itself from responsibility by delegating
its obligations to private bodies or individuals”.[20] The issue is
even more complicated, however, in such issues as family relations,
for instance, how to delineate the responsibility of parents and one
of a state with regard to the right of a child. Apart from that, it
is also difficult to conceptualise the responsibility of public
corporations (for instance, state TV/Radio broadcasting companies,
state universities, or state founds). Obviously, a state must provide
effective legal remedies for human rights violations. Therefore,
however difficult the issue of determining the responsibility of the
above-mentioned corporations might be, the rights violated by them
must be remedied by a state. Otherwise, there will be a breach of
Article 13.[21]
4. The issue of jurisdiction
The state’s obligation to secure the rights has certain spatial
limitations. Those limitations are implicit in the concept of
“jurisdiction”. As the European Court held, “…the engagement
undertaken by a Contracting Party is confined to ‘securing’ … the
listed rights and freedoms to persons within its own jurisdiction.
Further, the European Convention does not govern the actions of
States not Parties to it, nor does it purport to be a means of
requiring the Contracting States to impose European Convention
standards on other States…”[22] However, although state’s
jurisdiction is always limited in space, nevertheless, the concept of
“jurisdiction” used in Article 1 and the territory of a state do not
necessarily overlap.[23] Indeed, the Strasbourg authorities on a
number of occasions, made it clear that “jurisdiction” is a broader
concept than “territory”. Thus, in the case, where the applicant was
complaining both against the UK and Ireland, the Commission stated
that “…the High Contracting Parties are bound to secure the said
rights and freedoms to all persons under their authority and
responsibility, not only when the authority is exercised within their
own territory but also when it is exercised abroad…”[24] It is not
mere presence of certain state’s agents in the territory of another
state that makes the former responsible for human rights violations.
Obviously, state’s agents always remain under its jurisdiction. What
is important is the exercise of their authority in the territory of
another state. That aspect of the issue was highlighted by the
Commission in the above-mentioned case: “The authorised agents of the
State, including diplomatic or consular agents and armed forces, not
only remain under its jurisdiction when abroad but bring any other
person or property “within the jurisdiction” of that State, to the
extent that they exercise authority over such persons or property. In
so far as, by their acts or omissions the responsibility of the State
is engaged”. It follows from this that the Republic of Azerbaijan
will be responsible for the acts or omissions of its agents not only
within its internationally recognised territory but also abroad.[25]
As the Republic of Azerbaijan is a unitary state, there are no
competing jurisdictions in this country. The central Government bears
the sole responsibility over its subjects of jurisdiction. The fact
that within the Azeri territory there is an autonomous republic
(Nakhchivan) does not change anything. Firstly, because the judicial
system is centralised within the Supreme Court of Azerbaijan on the
top and, plus there is the Constitutional Court which has the final
say in all constitutional issues. Secondly, because the Parliament of
Nakhchivan is not entitled to regulate human rights ─ that
issue is within the exclusive competence of Milli Mejlis (National
Assembly) of Azerbaijan.
However, the matter of territorial jurisdiction can be complicated by
the final political agreement of the status of Nagorno-Karabakh,
namely what level of autonomy it will be granted. Be it as it may,
that level will have to fit in the constitutional framework of the
Azeri legal system. For the time being, the Nagorno-Karabakh problem
brings several important implications into the issue of jurisdiction
over war-affected territories. As is known, Armenian community of
Nagorno-Karabakh seeks secession from Azerbaijan and at the present
Armenian military forces have occupied and controlled up to 20 per
cent of the territory of Azerbaijan, including Nagorno-Karabakh
itself and six adjacent Azeri administrative regions. About 800, 000
people were forcibly displaced therefrom. Their properties and places
of residence were destroyed or misappropriated. Since Azerbaijan and
Armenia have been admitted to the Council of Europe before resolution
of the conflict, the question arises as to who would be responsible
for human rights violations in Nagorno-Karabakh and other occupied
territories? Clearly, self-proclaimed “Republic of Karabakh” will not
bear the responsibility for the very simple reason ─ it is not
a state. Nor can Azerbaijan be responsible, since it does not control
that part of its territory. Armenia somewhat inconsistently claims
that the conflict is of internal nature, so it has nothing to do with
anything happening in Nagorno-Karabakh. However, there is a lot of
direct, as well as indirect evidences that Armenia has militarily
intervened and continues to control the occupied territories (Armenia
has its own military bases in Nagorno-Karabakh and certain nearby
districts).[26]
The issue of human rights implications of military intervention was
dealt by both the Commission and the European Court concerning
Northern Cyprus. Considering the inter-state case of Cyprus v Turkey,
the Commission held that Turkey could be responsible, notwithstanding
that Cyprus was not annexed by her, not did Turkey established
military or civil government there.[27] The Commission, however,
grounded its interpretation on the basis that Turkish armed forces
exercised authority over persons and property in Cyprus. The approach
of the European Court was somewhat different. In the case of Loizidou
v Turkey (preliminary objections), the European Court decided that:
“the responsibility of a Contracting Party may also arise when, as a
consequence of military action ─ whether lawful or unlawful
─ it exercises effective control of an area outside its
national territory”. The shift from “exercising authority over
persons or property” to “an effective control of an area” has been
important. The significance of the judgment for the Nagorno-Karabakh
case is that the responsibility of an occupying state can arise not
only when the authority is exercised directly by the state, but also
indirectly. Thus, the European Court held that the obligation to
secure to everyone the rights defined in Section 1 of the European
Convention can be derived “from the fact of [effective] control [of
an area outside the state’s own territory] whether it be exercised by
a state directly, through its armed forces, or through a subordinate
local administration”. The latter is exactly what Armenia insists
upon. Armenian officials say that it is not they but Nagorno-Karabakh
authorities who control the occupied territories. But in the light of
the European Court’s judgment in Loizidou case the Armenian argument
is “self-defeating”. In short, since Azerbaijan and Armenia have been
admitted to the Council of Europe before the resolution of the
conflict, the Armenian Government will bear the sole responsibility
for the infringement of the rights and freedoms guaranteed by the
European Convention and Protocols thereto on the occupied Azeri
territories.[28]
5. Conclusion
Adherence by Azerbaijan to the major international organisations, in
particular the Council of Europe has brought colossal challenges to
domestic political and legal systems of Azerbaijan. The country has
become part of the European community, sharing its common human
rights principles and humanitarian values. It undertook certain
international commitments and obligations. Ratification of the
European Convention on Human Rights further increased the role of the
human rights in the internal matters of Azerbaijan and created a sort
of international human rights model, against which any act of
national authorities and legislators should be measured.
However, the unsolved conflict between Armenia and Azerbaijan hinders
the realisation of human rights in the region. In Nagorno-Karabakh,
there is a legal vacuum at the moment: on the one hand, the Azeri
laws do not work there due to the occupation by alien forces, and, on
the other hand, the Armenian laws cannot have legal force there, as
they are laws of other country. In such a situation, any potential
victim of human rights violation in Nagorno-Karabakh is puzzled by
existing legal uncertainty. Indeed, if his or her right is violated,
the responsible side will be Armenian, however, its unlikely that
either the separatist Nagorno-Karabakh authorities or Armenian
Government will be eager to render the sufficient level of protection
as required by the European Court. Thus, the ordinary people of
Nagorno-Karabakh are the victims of failures of political
negotiations and of an excessively delicate diplomacy of
international community to bring the parties to the final solution.
There is no doubt that domestic law must give full effect to the
rights guaranteed by the European Convention. The role of the
Strasbourg machinery is only subsidiary to the guaranteeing of
European Convention rights in the national laws. There must be a
solid legal basis for the protection of human rights at the national
level, accompanied by the reliable law implementation mechanisms.
Therefore, the better the system of protection within the national
legal orders, both in securing the rights guaranteed by the European
Convention and remedying violations of those rights, the more
effective the implementation of international standards and the fewer
cases will need to be brought before the European Court of Human
Rights.
*Original Title of this comment was : “Jurisdiction of the European
Court of Human Rights in conflict areas: Who is responsible for
violations in Nagorno-Karabakh?”.
——————————————————————————–
[1] Cornlis D. De Jong, “Elements for a More Effective European
Union Response to Situations of Mass Influx”, 8 IJRL 156 (1996), at
158
[2] T. Buergenthal, “The Effect of the European Convention on Human
Rights on the Internal Law of Member States”, in The European
Convention of Human Rights, British Institute of International and
Comparative Law, Supplementary Publication No. 11, 1965, 57,
pp.79-106
[3] Soering v. UK, ECHR (1989) Series A, No. 161, para. 87
[4] Ibid
[5] Abolished by Protocol No. 11 to the European Convention, which
came into force on 1 November 1998. The case-law of the Commission is
still valid.
[6] Austria v Italy (Application No. 788/60), Yearbook 4, p. 116
[7] I. Brownlie, Basic Documents on Human Rights, Oxford, Oxford
University Press, 4th edition, 2002, p. 399
[8] Ibid, p. 183
[9] Ibid
[10] The clearest example used to be the UK before adoption of Human
Rights Act (1998)
[11] C. Ovey and R. C.A. White, European Convention on Human Rights,
Oxford, Oxford University Press, 3rd Edition, 2002, p.14
[12] Loizidou v Turkey, ECHR (1985) Series A, No. 310, p.50
[13] Brownlie, supra, n. 8, at 398
[14] Ibid, p. 406
[15] Soering, supra, n. 4, para. 86
[16] Rothenthurm Commune v Switzerland (Application No. 13252/87) and
Ayuntamiento de M v Spain (Application No. 15090/89)
[17] See, for instance, Law on NGOs
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[18] See, for instance, the Law on Mass Media
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[19] The term "positive obligation" here is used as it is normally
understood in legal rhetoric. The conceptual difficulties with
defining those obligations and whether certain obligations are really
positive, are left open, since it is not possible to speculate on
that within this study
[20] Costello-Roberts v UK, ECHR (1993), Series A, No. 247-C, para.
27
[21] Brownlie, supra, n. 8, at 403
[22] Soering v. UK, ECHR (1989) Series A, No. 161, para. 86
[23] That was reflected in Article 2 of the ICCPR which uses the
language of "within its territory and subject to its jurisdiction".
[24] G v United Kingdom and Ireland (Application No. 9837/82), para.
25
[25] Thus, Article 10 of the Law on Citizenship (1998) obliges the
state organs to take all necessary steps to protect the rights of
Azeri citizens residing abroad. Logically, failure to take such steps
may serve as a basis for lodging a complaint with the court.
[26] According to Article 42 of the Annex to the IV Hague European
Convention Respecting Laws and Customs of War on Land (1907) "the
territory is considered occupied when it is actually placed under the
authority of the hostile army"
[27] Cyprus v Turkey (Applications Nos. 6780/74 and 6950/75)
[28] Upon depositing the instrument of ratification on 15 April 2002,
Azerbaijan declared that it is unable to guarantee the application of
the provisions of the Convention in the territories occupied by the
Republic of Armenia until these territories are liberated from that
occupation. See the CoE's website:
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From: Emil Lazarian | Ararat NewsPress