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142
JAN ONDŘEJ
CYIL 6 ȍ2015Ȏ
As a result of the military intervention of Georgia in South Ossetia and without
doubt under the influence of the recognition of Kosovo, the president of Russia,
Medvedev, signed the documents by which Russia recognizes the independence of
South Ossetia and Abkhazia on 26 August 2008.
38
On the other hand, it seems that
in the case of Transnistria Russia so far does not support a similar development as
that which led to the recognition of South Ossetia and Abkhazia.
39
3.1.2
De facto
regimes and human rights
The question may arise whether unrecognized
de facto
regimes are bound
to abide
human rights
even if they did not become state party of the respective international
agreements.
Human right
s, however, are not only part of the law of treaties; basic
human rights are part of
customary law.
40
The obligation to observe fundamental human
rights is, in the first instance, a consequence of the fact that they belong to customary
international law and have
erga omnes
character. Sub-state entities are characterized by
the creation of territorial entities that fulfil the classical criteria of statehood – territory,
population, government.
Even de facto regimes
41
can therefore be responsible for human
rights protection because they have to observe customary international law.
42
Is it possible
to
enforce human rights against de facto regim
es. This includes, namely, the procedure
based on the law of treaties where the establishment of a
de facto
regime was only
possible thanks to the military presence of a state bound by an agreement, for example
The European Convention on Human Rights (ECHR). We can quote a case when a
state converts an
occupied territory
into a
dependent state
that could be considered a
de
facto
regime. This was shown by the case of Loizidou v. Turkey before the European
Court of Human Rights
At the heart of the case was the question of who exercised sovereignty in Northern
Cyprus, as Turkey contended that it was not the appropriate defendant. Instead,
Turkey argued, the responsible party was the Turkish Republic of Northern Cyprus,
which, as an independent state, was accountable for it.
43
The Court argued that the
concept of jurisdiction applied in Article 1 of the Convention is not restricted to a
state’s own territory. The Court saw this as a matter of state sovereignty, which can
apply both within and outside state territory. For instance, a state may enjoy effective
control of a region outside its territory
44
as a result of military measures. In 1998 the
European Court for Human Rights handed down a judgment that obliged Turkey
38
Právo z 27. srpna 2008.
39
Právo z 23. září 2008.
40
HEINTZE, H.J. De Facto Regimes Bound by Human Rights?, p. 272.
41
Ibid.
, p. 271.
42
Ibid.
, p. 272.
43
ŠTURMA, P. a kol.
Casebook. Výběr případů z mezinárodního práva veřejného
. 2. doplněné vydání.
Praha: Univerzita Karlova v Praze Právnická fakulta, 2010, s. 166 (odst. 47).
44
Ibid.
, s. 166-167 (odst. 62).