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.