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Re-examining the extraterritorial application of the ECHR to northern Cyprus: the need for a measured approach

2010; Routledge; Volume: 15; Issue: 6 Linguagem: Inglês

10.1080/13642981003617204

1744-053X

Leonard M. Hammer,

European and International Law Studies

Abstract Extraterritorial application of the ECHR to Turkey in northern Cyprus in a whole scale manner is misplaced. Given the underlying reasoning behind the effective control standard that is linked to notions of international humanitarian law and occupied territory, and accounting for a historic understanding of the situation in northern Cyprus and how it developed, it is conceivable that Turkey should not maintain the full gamut of obligations under the ECHR. Keywords: European Convention on Human Rightsnorthern Cypruseffective controloccupied territory Acknowledgement Many thanks to Dr Rebecca Bryant for her thoughtful comments and insights. Notes For an overview of the cases, see E. Berry, ‘The Extra Territorial Reach of the ECHR’, European Public Law 12, no. 4 (2006): 629; D. Kamchibekova, ‘State Responsibility for Extraterritorial Human Rights Violations’, Buffalo Human Rights Law Review 13 (2007): 87. Notably, the Israeli Separation Wall Advisory Opinion, ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’, Advisory opinion of 9 July 2004, 2004 ICJ Rep. 136 (ICJ applied human rights obligations on Israel, deriving from both the Geneva Conventions and human rights treaties, in the occupied territories) and Congo v. Uganda, Case Concerning the Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgement of 19 December 2005 General List No. 116 (ICJ applied human rights obligations to the areas under the effective control of Ugandan troops). See also J. Cerone, ‘Jurisdiction and Power: The Intersection of Human Rights Law and the Law of Non-International Armed Conflict in an Extraterritorial Context’, Israel Law Review 40, no. 2 (2007): 72 (noting the difference in scope for the Israeli Wall case, where the ICJ distinguished between effective control for civil and political obligations as opposed to territorial control for economic and social rights, whereas in the Congo v. Uganda case, the ICJ seemed to rely upon a single standard for all forms of human rights – when a state is exercising jurisdiction, such as maintaining effective control over an area). For an overview of extraterritorial human rights applications in different international forums, see M. Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’, Human Rights Law Review 8, no. 3 (2008): 411; V. Mantouvalou, ‘Extending Judicial Control in International Law: Human Rights Treaties and Extraterritoriality’, International Journal of Human Rights 9 (2005): 147. M. Pedersen, ‘Territorial Jurisdiction in Article 1 of the European Convention on Human Rights’, Nordic Journal of International Law 73 (2004): 279. See e.g. C. McCarthy, ‘Legal Conclusion or Interpretative Process? Lex Specialis and the Applicability of International Human Rights Standards’, in International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law, eds R. Arnold and N. Quenivet (Leiden: M. Nijhoff, 2008), 101. See discussion infra. Article 1 of the ECHR provides: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention. X v. Germany, 25 September 1965, Yearbook of the ECHR 1965–68, 158. The case was eventually dismissed for lack of sufficient evidence. Decisions and Reports of the ECHR, 1972–1975, 125. Report of the Commission 6780/74 and 6950/75 Republic of Cyprus v. Republic of Turkey, 10 July 1976 and 72 D&R 5 (1983). See also Chrysostomos and Papachrystomou v. Turkey (1991) 68 D&R 216 (Turkish forces exercised control over northern Cyprus and thus the area under Turkish jurisdiction). Loizidou v. Turkey, 28 Eur. Ct. H.R. 2216 (1996) and 81 Eur. Ct. H. R. 1807 (1998). For a discussion of the case, see e.g. L. Klarevas, ‘Turkey's Right-v.-Might Dilemma in Cyprus: Reviewing the Implications of Loizidou v. Turkey’, Mediterranean Quarterly 10 (1999): 97. Note that as envisioned at the time, a slew of cases based on the Loizidou approach of the Court have been filed against Turkey. See Pedersen, ‘Territorial Jurisdiction in Article 1 of the European Convention on Human Rights’, at note 63. Republic of Cyprus v. Republic of Turkey, 10 May 2001, ECoHR no. 00025781/94 (judgement on merits). Note, as well the 2008 case concerning missing persons, Varnava and others v. Turkey, 10 January 2008, ECoHR nos 16064-6/90 and 16068-73/90 (referred to the Grand Chamber), discussed infra. The case has far-reaching effects regarding Turkey, such as to further complicate Turkey's application to join the European Community, a matter made difficult given Turkey's refusal to engage the Republic of Cyprus in any way. This approach has been criticized, with the view that Turkey is violating its treaty obligations to the EU, as well as incorrectly relying on the 1960 treaties as a basis for its actions in 1974. See e.g. E. Katselli, ‘The Ankara Agreement, Turkey, and the EU’, International and Comparative Law Quarterly 55, no.3 (2006) 705–717. Republic of Cyprus v. Republic of Turkey, 10 May 2001, ECoHR no. 00025781/94 (judgement on merits) at paras 90–1. Mantouvalou, ‘Extending Judicial Control in International Law’, 148–9. Cf. Ilascu and other v. Moldova and Russia, 8 July 2004 ECoHR n. 00048787/99, where the application of the ECHR was upheld principally against Russia, given its support for the separatists in the region in question, and the fact that it maintained a decisive influence over the Transdniestra Republic. Moldova was also held to bear on a lesser basis, by virtue of its obligation to secure the human rights of the inhabitants in the area. Compare Issa et. al. v. Turkey, 30 May 2000 ECHR Admissibility Decision no. 00031821/96 (case against Turkey concerning wrongful death of shepherds in Iraq following a military excursion by Turkish troops was dismissed for lack of jurisdiction principally because Turkey did not maintain any form of effective control of the area when it pursued Kurdish rebel troops outside its borders). Note as well, for further clarification, Ocalan v. Turkey, 12 March 2003 ECHR no. 00046221/99 (decision on merits) where the ECHR Court upheld the jurisdiction of Turkey over Ocalan, and thus ECHR human rights obligations, as Turkey apprehended Ocalan in Kenya and brought him back to Turkey – thereby asserting effective authority and control over him. See Kamchibekova, ‘State Responsibility for Extraterritorial Human Rights Violations’, 110. ‘The European court has rarely made direct reference to humanitarian law, using humanitarian law principles to interpret specific situations without referring to them by name.’; Pedersen, ‘Territorial Jurisdiction in Article 1 of the European Convention on Human Rights’, 287. 21 December 2001 ECHR Admissibility no. 00052207/99. See generally C. Ryngaert, Jurisdiction in International Law (Oxford: Oxford University Press, 2008). For a strong critique of the case, see E. Roxstrum, M. Gibney and T. Einarsen, ‘The NATO Bombing Case (Bancovic et. al. v. Belgium et. al.) and the Limits of Western Human Rights Protection’, Boston University International Law Journal 23 (2005): 55. For an excellent discussion and contextual analysis of the case, see M. Happold, ‘Bankovic v Belgium and the Territorial Scope of the European Convention on Human Rights’, Human Rights Law Review 3, no. 1 (2003): 77. Bancovic v. Belgium at para. 80. See also Milanovic, ‘From Compromise to Principle’, 26, noting that Bancovic was a misapplied understanding of the traditional notion of jurisdiction and the capacity of a state to apply rules and regulations, as discussed infra. Compare Pedersen, ‘Territorial Jurisdiction in Article 1 of the European Convention on Human Rights’, asserting that Bancovic was decided correctly as there was no factual control over the area by NATO troops since the forces did not assume responsibilities that pertain to an occupying power. See e.g. E. Guild, ‘Inside Out or Outside In? Examining Human Rights in Situations of Armed Conflict’, International Community Law Review 9 (2007): 33, at 47 noting that the ECHR Court rejected the possibility that individuals within the European space would be left without a remedy to challenge human rights abuses. See also Kamchibekova, ‘State Responsibility for Extraterritorial Human Rights Violations’, 120–1. See e.g. Milanovic, ‘From Compromise to Principle’, 24. Pedersen, ‘Territorial Jurisdiction in Article 1 of the European Convention on Human Rights’, 282. See e.g. Milanovic, ‘From Compromise to Principle’; R. Wilde, ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’, Israel Law Review 40, no. 2 (2007): 503. Milanovic, ‘From Compromise to Principle’, 8. See generally Ryngaert, Jurisdiction in International Law, at Chapter Two (noting the preference by states for asserting jurisdiction pursuant to a territorial or personal connection, although there are limitations imposed that would indicate a state also must justify its jurisdiction, in accordance with the 1927 Permanent Court of International Justice case of France v. Turkey – referred to as the Lotus case). See generally Ryngaert, Jurisdiction in International Law, at Chapters Three and Five (noting the preference for the territorial principle as it has developed since the seventeenth century). See e.g. Berry, ‘The Extra Territorial Reach of the ECHR’, 650 (‘…jurisdiction under Article 1 [of the ECHR] need not be identical with jurisdiction as a matter of public international law…’). Milanovic, ‘From Compromise to Principle’, 14, referring to the notion of belligerent occupation and actual control; T. Ruys and S. Verhoeven, ‘DRC v. Uganda: The Applicability of International Humanitarian Law and Human Rights law in Occupied Territories’, in International Humanitarian Law and Human Rights: Towards a New Merger in International Law, ed. R. Arnold and N. Quenivet (Leiden: M. Nijhoff Pub., 2008), 176, noting the lack of any need to demonstrate attributable state action, as the key is effective control, which is enough to establish the gamut of human rights protection rather than making a determination as to whether the state's actions actually affect the human rights situation in particular. Cf. Wilde, ‘Triggering State Obligations Extraterritorially’, 516, noting that Bancovic called for effective control where the authority also engages some form of public powers, whereas in the Cyprus case, the Court adhered to a rather broad standard of effective control in fact. Wilde concludes that the public powers component of control is still a viable aspect of the determination. Cerone, ‘Jurisdiction and Power’, 40, points out as well that the ECHR Court seemed to relax the standard even further by relying on the power and authority exerted by a state over an area, a more incorporative standard than effective overall control, since ‘anyone within territory under the effective control of a state would also be under the state's power and authority’. Milanovic, ‘From Compromise to Principle’, 32. See also Kamchibekova, ‘State Responsibility for Extraterritorial Human Rights Violations’, 107, noting for example 48787/99 Ilascu v. Moldova and 71503/01 Assanidze v. Georgia where even though these states did not exercise control over the areas in question, the states still maintained a (limited) form of (negative) human rights responsibility to the population. Wilde, ‘Triggering State Obligations Extraterritorially’, 524. E. Benvenisti, The International Law of Occupation (Princeton, NJ: Princeton University Press, 2004), 4, defines occupation as the effective control of a power over territory ‘to which that power has no sovereign title, without the volition of the sovereign of that territory’. See also K. Guttieri, ‘Making Might Right: The Legitimization of Occupation’, paper presented at the 45th Annual International Studies Association Convention, Montreal, Canada, 17–20 March 2004 (‘Military occupation involves exercising some coercive control over people in a territory other than that recognized as belonging to your state’), at 11. Ruys and Verhoeven, ‘DRC v. Uganda’, 161. But see C. Lopes and N. Quenivet, ‘Individuals as Subjects of International Humanitarian Law and Human Rights Law’, in International Humanitarian Law and Human Rights: Towards a New Merger in International Law ed. R. Arnold and N. Quenivet (Leiden: M. Nijhoff Pub., 2008), 199. See e.g. Guild, ‘Inside Out or Outside In?’, 44. Ruys and Verhoeven, ‘DRC v. Uganda’, at 164 referring to the ICTY cases of Naletilic and Martinovic. Ibid. at 173, referring to the Cyprus v. Turkey case, as well as additional instances from the Human Rights Committee concerning Belgian troops in Somalia and Croatian troops in Bosnia and Herzegovnia. A. Orakhelashvili, ‘The Interaction Between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?’, European Journal of International Law 19, no. 1(2008): 161; P. Alston, J. Morgan-Foster and W. Abresch, ‘The Competence of the UN Human Rights Council and its Special Procedures in relation to Armed Conflicts: Extrajudicial Executions in the “War on Terror”’, European Journal of International Law 19, no. 1 (2008): 183. See e.g. McCarthy, ‘Legal Conclusion or Interpretative Process?’, 110, noting for example that when considering human rights, it is imperative to account for the fact that there is some form of state–individual relationship, and not the more formalised state–state relationship that generally exists in treaty law. Ibid., 113. Orakhelashvili, ‘The Interaction Between Human Rights and Humanitarian Law’, 161 (clarification of the relationship between human rights and humanitarian law ‘requires the accurate assessment of the available evidence, and not the preconceived approach that tends to conceive one of these two fields as lex specialis that excludes or curtails the protection under the other field’). He also asserts that humanitarian law does not necessarily maintain a lower level of protection than human rights. McCarthy, ‘Legal Conclusion or Interpretative Process?’, 117. Cerone, ‘Jurisdiction and Power’, noting at n. 139 that this is the case under customary international law. See e.g. Bancovic v. Belgium, para. 75. For an excellent analysis, one that concludes that the overall effective control test will probably ‘find favour in the future’, see R. Wilde, ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’, in International Humanitarian Law and Human Rights: Towards a New Merger in International Law, ed. R. Arnold and N. Quenivet (Leiden: M. Nijhoff Pub., 2008), 131. See e.g. Wilde, ‘Triggering State Obligations Extraterritorially’, 518. B. Meier, ‘Reunification of Cyprus: The Possibility of Peace in the Wake of Past Failure’, Cornell International Law Journal 34 (2001): 458. But see W. Mallinson, Cyprus: A Modern History (New York: I.B. Taurus, 2005), 49, asserting that Britain did eventually support enosis given the underlying desire to maintain military bases on the island and the view that Greece would be a more willing partner to that effect as it is a member of NATO. Meier, ‘Reunification of Cyprus’, 460. See also Mallinson, Cyprus: A Modern History, 22–5, 33 (criticising the position of the UK due to its presumed support of the Turkish Cypriot community before 1960). Meier, ‘Reunification of Cyprus’, 463. Z. Necatigil, The Cyprus Question and the Turkish Position in International Law (Oxford: Oxford University Press, 2001), 65. Note as well that a change occurred in the perception of the Turkish Cypriot goals already during the British Mandate period when the Turkish Cypriots moved from the goal of protecting the religious interests of the Muslim minority to more nationalist goals focusing on political rights in the vein of Kemalist nationalism. See e.g. C. Yennaris, From the East: Conflict and Partition in Cyprus (London: Elliot and Thompson, Ltd., 1999), 39–40. This movement was strengthened by the emergence of trade unions specifically for the Turkish Cypriot minority in the 1940s. Ibid., 45. The Turkish Cypriots became even more politically organised in the years leading up to 1960, especially as Turkey became more interested in the island and assisted the fledging political groups. Ibid., 84–5, 90–1. Negatigil, The Cyprus Question, 66. D. Isachenko, ‘The Production of Recognized Space in Informal States: State-Building Practices of North Cyprus and Transnistria’, paper presented at the ISA Convention, Chicago, USA, February 28–March 3, 2007, at 4. Necatigil, The Cyprus Question, 66–7. Mallinson, Cyprus: A Modern History, 55, notes (in a somewhat bewildering manner) that the Greek Cypriot actions were necessary ‘because of the refusal of Turkish Cypriots to participate in the government, which had become the victim of an unworkable constitution in the first place’. Necatigil, The Cyprus Question, 67. Yennaris, From the East, 201–3, notes the creation of a new constitution and division of powers specifically for the Turkish Cypriots, claiming, at 209–11, that the pre-1974 elections of a Turkish Cypriot leader were under direct pressure from Turkey to remove all forms of internal opposition, so as to ensure for a strong and unified political front. Necatigil, The Cyprus Question, 67–8. Ibid., 68, referring, most significantly, to a UN Secretary General report from 1964. Geneva Declaration of July 1974 on Cyprus, 30 July 1974, http://www.trncinfo.com/tanitmadairesi/2002/ENGLISH/DOCUMENTS/5a.htm, Section 5, para. 4 – ‘The Ministers noted the existence in practice in the Republic of Cyprus of two autonomous administrations, that of the Greek Cypriot community and that of the Turkish Cypriot community’ (accessed March 1, 2010). Necatigil, The Cyprus Question, 69. Ibid., 73. Meier, ‘Reunification of Cyprus’, 463. Ibid., 463. Ibid., 464. See e.g. Necatigil, The Cyprus Question, 71, referring to a Security Council Resolution from 1964 that established a United Nations Peacekeeping Force in the area that relied on the Greek Cypriot majority to approve its presence, presumably because the situation was dire and that the matter was thought to achieve a solution in a short span of time. See S.C. Res. 353, UN SCOR, 29th Sess., 1781st mtg (1974). Meier, ‘Reunification of Cyprus’, 465. See e.g. R.R. Denktash, The Cyprus Triangle (New York: TRNC Office, 1988), 119, noting the desire to attain a settlement pursuant to an inter-communal partnership. Necatigil, The Cyprus Question, 106–7, referring to UK cases like Hesperides Hotel and others v. Aegan Turkish holidays and another (1977) 3 WLR 656 and Polly Peck International Plc v. Asil Nadir and others (1992) 2 LLR 238. Meier, ‘Reunification of Cyprus’, 468, referring to S.C. Res. 939, UN SCOR, 3412th mtg, UN Doc S/RES/9939 (1994). Necatigil, The Cyprus Question, 318–19. Examples of this are informal arrangements to deal with migrant workers and the illegal trafficking of women. Acting, in their eyes, pursuant to the 1960 treaties as a means of providing protection to the Turkish Cypriot minority. See e.g. Isachenko, ‘The Production of Recognized Space in Informal States’, 9, referring to 2005 changes made to the Bayram ceremony. See e.g, Y. Dinstein, ‘Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding’ (2004-1) Occasional Paper Series, Program on Humanitarian Policy and Conflict Research, 2004, noting that whilst the occupying power is to maintain the pre-existing laws prior to occupation, in a long-term occupation, one still must meet the ever-changing needs of the local population, as well as remove any form of pre-existing discrimination, pursuant to the requirements of the Geneva Convention. See e.g., Varnava case from 2008 (to be heard by the ECHR Grand Chamber), see note 13, where the court found ongoing violation of Articles 2,3 and 5 especially as Turkey did not conduct a proper investigation into the matter to determine the whereabouts of the missing people. Ibid., paras 133, 138, and 145. Note that Article 3 was deemed inhuman treatment, not torture, as a result of the lack of investigation, ibid. para. 138, and no damages (other than attorney fees) were rewarded. Ibid., paras 158–9, and 163. See e.g. ibid., para. 129. By contrast, Turkish Cypriot claims over missing individuals were dismissed as being unreasonably late given the long time period (with no discussion of ongoing violations). The Greek Cypriot cases were deemed to be within a proper timeframe because they were filed within three years of Turkey's ratification of the ECHR and were considered ongoing violations. Ibid., paras 117–18. In a separate opinion in the Varnava case, Judge Eronen held that there was no continuing violation since it is the date of the disappearance that is the seminal factor for determining a time frame, and over an extended period of time, the individual is eventually presumed dead. Ibid., separate opinion. One also may question whether the ongoing violation was actually ‘committed’ by Turkey, save for those instances where the missing individuals were presumably moved to Turkish soil such as to be considered under actual Turkish jurisdiction. Presumably, these prisoners were eventually returned to Cyprus, and it seems that the majority of missing persons actually resulted from actions of the Turkish Cypriot military factions, rather than the Turkish troops. R. Lawson, ‘Life after Bancovic: on the Extraterritorial Application of the European Convention on Human Rights’, in Extraterritorial Application of Human Rights Treaties, ed. F. Coomans and T. Kamminga (Oxford: Intersentia, 2004), 98. Ibid., 99.