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The extraterritorial application of the European Convention on Human Rights and the United Nations Convention against Torture in frozen conflict regions as a tool of ensuring the prohibition of torture — the cases of Transnistria and Abkhazia

Carchilan, Lidia LU (2019) JAMM07 20191
Department of Law
Faculty of Law
Abstract (Swedish)
The existence of frozen conflicts in Europe are posing difficulties in the application of international human rights treaties. This is due to, de facto governments of break-away regions not cooperating with international mechanisms and refusing to comply with regional and international instruments. The break-away regions of Transnistria and Abkhazia are such examples. Officially part of Republic of Moldova and Georgia, respectively, the obligations to prevent, investigate, prosecute and punish the perpetrators of torture in these regions are impeded by the loss of effective control. The analysis herein centres on the development of extraterritorial application of the ECHR, generally, and in frozen conflict regions, specifically. Following... (More)
The existence of frozen conflicts in Europe are posing difficulties in the application of international human rights treaties. This is due to, de facto governments of break-away regions not cooperating with international mechanisms and refusing to comply with regional and international instruments. The break-away regions of Transnistria and Abkhazia are such examples. Officially part of Republic of Moldova and Georgia, respectively, the obligations to prevent, investigate, prosecute and punish the perpetrators of torture in these regions are impeded by the loss of effective control. The analysis herein centres on the development of extraterritorial application of the ECHR, generally, and in frozen conflict regions, specifically. Following this, CAT’s discourse regarding the extraterritorial application of UNCAT is presented. The research findings show a positive impact caused by the involvement of international mechanisms (ECtHR and CAT) combatting impunity, broadly, and engaging extraterritorial jurisdiction of the parent state over the break-away regions, in particular. As international law is an evolving body of law, reviewing the existing case-law was paramount in speculating the extraterritorial application of the ECtHR and UNCAT in Transnistria and Abkhazia. The analysis illustrates that both bodies guarding the application of their respective instruments, have addressed extraterritoriality; the ECtHR has taken a more practical approach, while the CAT has adopted a more formalistic and theoretical one. This thesis advances the conclusion that the broader human rights movement is shifting away from the territoriality requirement to a paradigm where all States parties exercising control or decisive influence over these regions regardless of a territorial claim, are held to account. Additionally, this thesis encourages the ECtHR and CAT to more systematically embrace the extraterritoriality principle in their decisions, whether in judgements, individual communications, conclusions and recommendations, and increase their engagement in these two frozen conflict regions, which are examples of grey areas of the international law. (Less)
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author
Carchilan, Lidia LU
supervisor
organization
course
JAMM07 20191
year
type
H2 - Master's Degree (Two Years)
subject
keywords
frozen conflict, grey zones, extraterritoriality, jurisdiction, state responsibility, torture, de facto governments, effective control, Transnistria, Abkhazia
language
English
id
8984503
date added to LUP
2019-08-13 15:11:35
date last changed
2019-08-13 15:11:35
@misc{8984503,
  abstract     = {The existence of frozen conflicts in Europe are posing difficulties in the application of international human rights treaties. This is due to, de facto governments of break-away regions not cooperating with international mechanisms and refusing to comply with regional and international instruments. The break-away regions of Transnistria and Abkhazia are such examples. Officially part of Republic of Moldova and Georgia, respectively, the obligations to prevent, investigate, prosecute and punish the perpetrators of torture in these regions are impeded by the loss of effective control. The analysis herein centres on the development of extraterritorial application of the ECHR, generally, and in frozen conflict regions, specifically. Following this, CAT’s discourse regarding the extraterritorial application of UNCAT is presented. The research findings show a positive impact caused by the involvement of international mechanisms (ECtHR and CAT) combatting impunity, broadly, and engaging extraterritorial jurisdiction of the parent state over the break-away regions, in particular. As international law is an evolving body of law, reviewing the existing case-law was paramount in speculating the extraterritorial application of the ECtHR and UNCAT in Transnistria and Abkhazia. The analysis illustrates that both bodies guarding the application of their respective instruments, have addressed extraterritoriality; the ECtHR has taken a more practical approach, while the CAT has adopted a more formalistic and theoretical one. This thesis advances the conclusion that the broader human rights movement is shifting away from the territoriality requirement to a paradigm where all States parties exercising control or decisive influence over these regions regardless of a territorial claim, are held to account. Additionally, this thesis encourages the ECtHR and CAT to more systematically embrace the extraterritoriality principle in their decisions, whether in judgements, individual communications, conclusions and recommendations, and increase their engagement in these two frozen conflict regions, which are examples of grey areas of the international law.},
  author       = {Carchilan, Lidia},
  keyword      = {frozen conflict,grey zones,extraterritoriality,jurisdiction,state responsibility,torture,de facto governments,effective control,Transnistria,Abkhazia},
  language     = {eng},
  note         = {Student Paper},
  title        = {The extraterritorial application of the European Convention on Human Rights and the United Nations Convention against Torture in frozen conflict regions as a tool of ensuring the prohibition of torture — the cases of Transnistria and Abkhazia},
  year         = {2019},
}