CYIL 2015

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).

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