UCL School of Slavonic and East European Studies, University College London, 7th Annual International Postgraduate Conference

Inclusion Exclusion

16-18th February 2006

Friday 17 February 12:00 – 1:30: Panel E3: Minority Rights

Martina Bieławski (Centre of International Studies, University of Cambridge): ‘The protection of individual rights in Abkhazia, South Ossetia and Nagorno-Karabakh: are de facto entities not recognised as states included in the international human rights regime?’

Over the last decades a body of fundamental human right norms developed, from which no derogation is permitted. But what implications does it have, if a state that has subscribed to guarantee human rights, over an extended period of time is not capable of exercising effective control of a part of its territory? The now frozen conflicts of the Caucasus, which led to the emergence of the de facto entities Abkhazia, South Ossetia and Nagorno-Karabakh are case in point.

On the first view it seems that the whole territory of the metropolitan state would be legally included into the relevant human rights regime - represented by the Universal Declaration of Human Rights, International Covenants on Human Rights, European Convention on Human Rights- while the parts to which it’s governmental control does not extend remain de facto excluded. However, such a conclusion would create a legal vacuum and mean that human rights are granted on the discretion of the current sovereign.

In an attempt to look beyond the legalistic reasoning that rights and obligations can only apply to sovereign, independent states, the effect the international and European human rights regime has upon the individuals living within secessionist territories will be explored. It will be showed to what extend human rights violations can be imputed to the metropolitan states and which framework has been established by international law in order to oblige the authorities of de facto entities to respect fundamental human rights. In contrast to parties of a hot civil war, as for example in neighbouring Chechnya, a de facto entity is characterised by its stability and the existence of state-like structures which allow to clearly identify the current leaders and to address them with international demands.

There is a basic dilemma between the interest of the international community to uphold an international ordre public, in which fundamental human rights are protected and the wish to keep the club of subjects of international law closed. It appears obvious that a denial of any distinct legal nature to the de facto entities of the Caucasus excludes them from the necessity to conform with basic principles assuring human dignity. At the same time, states are reluctant to vest un-recognised entities with obligations, fearing that what they may ask in return is a strengthening of their status.

This paper employs a standard qualitative research methodology based on analysis of the Caucasian secessionist entities. It inquires under which circumstances human rights law provides for an inclusion of people living in territories not matching the state/non-state dichotomy applied in classical international law. Within each case study, analysis will be based both on the actual practice of international organisations involved in conflict-resolution as well as Russia and the USA as key players in the region vis–à-vis the secessionist entities and their policy statements as representative of opinio juris.