This post was written by Stuart Wallace, Ph.D. candidate at the University of Nottingham. His research addresses the application of the ECHR to domestic and extra-territorial military operations. You can follow him on Twitter @echrhawk.
The ECtHR recently held its Grand Chamber hearing in the case of Sargsyan v Azerbaijan. The webcast of the hearing is available here and worth watching (if for no other reason than the farcical map parade during the Azerbaijani government’s submissions). The applicant in the case (now deceased and succeeded by family members) was a former resident of the village of Gulistan in the disputed region Nagorno-Karabakh. The region was predominantly inhabited by ethnic Armenians, but part of Azerbaijani territory. In the late 80s, the region’s inhabitants sought to secede from Azerbaijan and to make the region part of Armenian territory. The ensuing dispute escalated over time, especially following the collapse of the Soviet Union.
In 1991, Azerbaijan declared independence claiming the region as part of its territory, however, the region later declared itself to be the “Nagorno-Karabakh Republic” (NKR) and claimed not to be subject to Azerbaijani jurisdiction. The dispute eventually led to full scale war between Armenia and Azerbaijan and by end of 1993 Armenian forces had gained almost total control over the region. A ceasefire was agreed in 1994, although no long term political settlement has been reached. Armenia claims the region is controlled by the NKR, an entity which is not internationally recognised (note the parallels between the Turkish Republic of Northern Cyprus and the Moldovan Republic of Transdniestria).
The applicant’s village came under attack from Azerbaijani forces in 1992 and the applicant fled with his family, who have been unable to return since. The applicant claimed his inability to access his property amounted to a continuing violation of various Articles of the Convention, in particular Article 1 of Protocol No. 1 and brought a case against Azerbaijan. While the village is ostensibly within Azerbaijani sovereign territory, Azerbaijan claims that it lacks any effective control over the village and is not exercising jurisdiction for the purposes of Article 1 of the ECHR. Indeed the Azerbaijani government claimed the village of Gulistan is actually situated directly on the front line between Azerbaijani and “NKR” forces established by the cease-fire agreement of May 1994. The Azerbaijani government also claimed that the village and surrounding area is heavily mined and completely deserted with armed forces stationed on either side of the line.
The most interesting aspects of the case in my view are the questions it raises about the responsibilities the State bears to inhabitants (or former inhabitants) of territory forming part of its de jure territory, but outside its de facto control. The case is essentially a follow up to many of the outstanding legal issues left over from the case of Ilascu and Ors v Moldova and Russia. There the ECtHR examined another post-Cold War situation where a State had lost de facto control over its de jure territory. Moldova was a part of the Soviet Union until its collapse in the early 90s. Moldova declared independence in 1991 and claimed the area of Transdniestria as part of its territory. Transdniestria had been part of the Moldavian Soviet Socialist Republic, which was succeeded by Moldova. However, following the collapse of the Soviet Union, the USSR’s fourteenth army remained in Transdniestria and the territory declared independence as the ‘Moldavian Republic of Transdniestria’ (MRT) in 1991. The MRT has not been internationally recognised and Moldova continues to claim Transdniestria as part of its territory, although it has been unable to exercise de facto control over the territory. The facts of the case itself are not particularly important and a brief summary will suffice.
The four applicants in Ilascu were arrested in the MRT in 1992 and charged with various offences including murder and the nebulous offence of ‘anti-Soviet activities’. They were tried and sentenced by the Supreme Court of the MRT and detained for a number of years. The applicants alleged that numerous violations of the ECHR had arisen from their trial and subsequent detention and sought to hold Russia and Moldova responsible. They sought to hold Moldova responsible for not interceding on their behalf with the MRT to bring an end to the violations of the Convention arising from their detention. They sought to establish that Russia was in de facto control of the MRT and was exercising jurisdiction and could therefore be held responsible for the violations of the ECHR.
In its judgment, the ECtHR held that the Moldovan Government was the only legitimate government of the Republic of Moldova under international law, but that it did not exercise authority over the part of its territory under the effective control of the MRT. It further held that the lack of control over the territory was not a barrier to the State exercising jurisdiction for the purposes of Article 1 stating:
where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation […] it does not thereby cease to have jurisdiction within the meaning of Art.1 of the Convention over that part of its territory.
The ECtHR went on to rule that the situation ‘reduces the scope’ of the State’s Article 1 jurisdiction so that the State will only be obliged to uphold its positive obligations towards persons within that territory. However, that case and subsequent cases (notably Catan and Ors v Moldova and Russia and Ivantoc and Ors. v Moldova and Russia) left a great deal of uncertainty over what the State actually had to do to satisfy the positive obligations.
In Sargsyan, the applicant is alleging that the State was under an obligation to abide by the Pinheiro Principles on Housing and Property Restitution for Refugees and Displaced Persons. This meant the State was obliged to ensure a right of displaced persons to return and restitution or compensation. Further, the State had to establish a legal regime to determine land ownership and engage in phased returns of displaced persons to de-militarised zones, which the Azerbaijani State has completely failed to achieve.
The Azerbaijani government by contrast claimed that the ECtHR’s case law on this issue only obliged the State to take the measures that were within its power to take. In their view this meant that the State only had to refrain from supporting the NKR regime, which they had done and attempt to regain control over the region in its diplomatic efforts.
To be fair, both parties have a reasonable case. The actual obligations the State must uphold are extremely unclear, for example, the ECtHR ruled in Ilascu that a State must: ‘take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention’. However it went on to state:
Although it is not for the Court to indicate which measures the authorities should take in order to comply with their obligations most effectively, it must verify that the measures actually taken were appropriate and sufficient in the present case. When faced with a partial or total failure to act, the Court’s task is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made. (Ilascu at )
On the one hand the ECtHR appears to espouse a functional test for the positive obligations that the State must take the diplomatic, economic, judicial or other measures that are in its power to take e.g. the State should intervene to the extent that it is able to. In Ilascu the court held that the State was obliged to attempt to re-establish control over its territory and to take measures to ensure the applicants’ rights, including attempts to secure their release from detention. On the other hand the ECtHR appears in the later quote to demand a much lower level of activity which seems to reward States for inaction. If the State fails to act or don’t do enough, the ECtHR holds them to a lower standard e.g. undertaking a minimum effort. Thus, the burden imposed by the ECtHR on the State is unclear, is the State obliged to take measures within their power or simply use the minimum effort?
One can really sympathise with Azerbaijan in this case because while the ECtHR maintains it will not impose an impossible or disproportionate burden on State, it refuses to specify the measures, or even the type of measures, the State must take in advance, engaging instead upon a speculative case by case assessment. This may be justified in principle and one could argue is even necessitated by the functional test. However, in the absence of indications of the type of actions the State must undertake, the approach becomes extremely casuistic with the ECtHR holding the State responsible for failing to satisfy the measures which it has not specified.
Indeed, the whole scheme established by Ilascu is deeply unsatisfactory for a number of reasons. It is extremely difficult in practice to assess the State’s capacity to act in a given situation, meaning the obligations are inherently variable. When the State has multiple options available to it, as Azerbaijan does in Sargsyan, it is difficult for the State to infer which course it should take. The obligations the State is held to in practice in cases like Ilascu were also not immediately apparent from the ECHR itself e.g. it was not apparent that the ECHR obliged States to regain control over territory when they have lost it. In my view, if the ECtHR is going to insist on holding States to positive obligations in relation to territory outside their de facto control, they must at the very least make clear the specific obligations that the State must satisfy and the test which the ECtHR will apply when assessing whether they have complied with those obligations. Further, the ECtHR is treading dangerously close to the political sphere and international diplomacy in these cases by potentially imposing obligations on States which demand alterations in its foreign policy. While the ECtHR may intervene with the best intentions, judicial restraint is desirable. The problems presented by a supra-national court hundreds of miles from a frozen conflict dictating the actions of a particular party are so obvious they do not need explication here.
Hopefully the ECtHR will take this opportunity to clear up the outstanding issues from the Ilascu line of cases and a judgment should be expected toward the end of this year with any luck.