TY - JOUR
AU - Müller,, Amrei
AB - Abstract Recent literature and United Nations documents advocate that most armed non-state actors (ANSAs) should be bound by human rights law. This article takes a more critical stance on this issue. It argues that only a limited number of ANSAs should potentially become human rights duty-bearers: those that exercise de facto (human rights) jurisdiction and thus have considerable institutional and military capacities, as well as particular normative characteristics. It specifies these capacities and characteristics with an analysis of ANSAs’ practice that tentatively indicates that some of these entities may indeed exercise de facto jurisdiction. The argument is justified by highlighting the broader consequences that recognising ANSAs as human rights duty-bearers will entail. It will also endow them with privileges that will legitimise their authority over time. This is grounded in the normative logic of human rights law that emphasises the interrelationship between human rights, equality and democracy that also permeates the notion of jurisdiction and is further supported by a political understanding of the right to self-determination. The article closes with a brief sketch of two complementary ways to develop international law binding ANSAs to be further explored in future research: the so-called ‘responsibilities for human rights’ and an adapted law of occupation. human rights, armed non-state actors, jurisdiction, right to self-determination, military occupation 1. INTRODUCTION There is no question that armed non-state actors (ANSAs) frequently undermine the ability of people under their control or influence to enjoy their human rights.1 At the same time, it is not uncommon that these entities adopt measures that aim to protect these rights or at least claim to do so.2 Questions about ANSAs as potential human rights duty-bearers arise in particular for situations to which rules of international humanitarian law that bind a specific type of ANSA, non-state armed groups3 involved in non-international armed conflicts, do not apply, or where gaps exist in international humanitarian law. The former is the case in situations where the ANSA is not, not yet, or no longer, involved in an armed conflict,4 and the latter occurs in regard to ‘everyday life’5 situations, that is, situations involving non-state armed group control or influence that is not directly associated with the armed conflict.6 This is inter alia due to the fact that the law of military occupation is so far not considered applicable to non-international armed conflicts,7 that is, to exceptional situations where territory has ‘actually been placed under the authority of the hostile [state] army [by analogy: the hostile ANSA-army].’8 Against this background, the academic discussion about ANSAs’ human rights obligations has gained pace, much of it accepting that ANSAs are in some way bound by human rights law.9 Similar proposals can be found in reports of United Nations (UN) special procedures mandate holders and UN Inquiry Commissions,10 with a 2018 report of the UN Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions maintaining that ANSAs are ‘bound by human rights obligations’.11 This article takes a more critical stance on advocating ANSAs as human rights duty-bearers. It does so by highlighting the broader consequences that recognising ANSAs as human rights duty-bearers would entail: it will inevitably endow them with privileges such as the privilege to engage in (democratic) law making that will legitimise their authority over time potentially ‘confer[ring] on these non-state entities a quasi-sovereign status’.12 This will go beyond the more technocratic ‘humanitarian’ privileges that ANSAs obtain under international humanitarian law and is grounded in the fundamental interrelationship between human rights, equality and democracy (political community) that permeates human rights law, as well as in a related political understanding of the right to self-determination. The article will show that this grounding or ‘specific normative logic’13 of human rights law cannot be ignored in the ongoing discussion about binding ANSAs to this body of law, in particular not in a discussion about why these entities should potentially become so bound. The article argues that only a rather limited category of ANSAs should potentially be recognised as human rights duty-bearers: those ANSAs that, as a matter of fact, exercise (human rights) jurisdiction14 as ‘effective, overall and normative power or control’15 over people. By implication, this would only be those ANSAs that display considerable military and institutional capacities as well as normative characteristics, above all the willingness to engage in and encourage participative, and at least gradually, democratic processes that enforce their genuine political claim to act as representatives of the people under their influence and control. In other words, ANSAs that preside over a ‘(democratic) society’16 and are willing and able to exercise principled public authority grounded in human rights and political equality. The article takes steps to justify this argument and to clarify these military and institutional capacities as well as these normative characteristics. It thereby also addresses the question of whether some ANSAs can exercise de facto jurisdiction, a question that has so far been overlooked in academic literature and UN reports on the alleged human rights obligations of ANSAs. The analysis proceeds in five steps. Through a brief review of recent academic literature and UN documents on ANSAs and human rights, Section 2 sets the scene and further explains this article’s focus. Section 3 explores the notion of state human rights jurisdiction. It also establishes the evidence that the European Court of Human Rights (ECtHR or the Court) and UN treaty bodies rely on when they determine whether states indeed exercise jurisdiction.17Section 4 discusses whether some ANSAs are in fact able to exercise jurisdiction over persons through an analysis of their practices, helping to adapt the state-focused evidence requirements to ANSAs. Section 5 evaluates and justifies the findings of Section 4. Two complementary ways—crafting so-called ‘responsibilities for human rights’18 and adapting the law of occupation to non-international armed conflicts—in which international law should be developed to protect individuals affected by ANSAs that do not exercise jurisdiction as a matter of fact in order to close remaining gaps in international humanitarian law are briefly outlined in Section 6, while Section 7 concludes. Before this analysis is embarked on, three preliminary remarks are in order. First on the entities this article is concerned with: the non-state collective entities referred to here as ANSAs are entities distinct from their members that, in some way or another, challenge the authority of an established government and/or of other ANSAs, by the resort to armed force and/or the formation of quasi-governmental structures over territory and people.19 Their non-state character implies entities whose conduct cannot be attributed to states under Articles 4 to 10 of the Draft Articles on Responsibilities of States for Internationally Wrongful Acts (ARSIWA20),21 at least not primarily so.22 By way of example, this article is concerned with organised non-state armed groups as defined in international humanitarian law23 that are engaged in a non-international armed conflict and with the so-called de facto regimes, that is, entities that exercise short- or long-term quasi-governmental authority in a defined territory, and that may or may not be engaged in an armed conflict, and that may or may not have all characteristics of states.24 Second, a note on methodology. This is neither an article about lex lata, that is, an analysis of existing human rights law binding ANSAs, nor one about developing exclusively legal arguments why ANSAs are arguably already bound by this law. Instead, it is an examination of the military and institutional capacities and, importantly, the normative characteristics which these entities should have to potentially become bound by human rights law with a view to advancing the broader development of international law regulating ANSAs in a pragmatic, yet normatively compelling way. To achieve this, this lex ferenda examination is guided by hard human rights law binding states and its underlying rationales, the latter of which the analysis attempts to tease out with the help of some normative human rights theory, highlighting the intrinsic interrelation between human rights, equality and democracy that pervades this body of law. This is then applied to ANSAs, taking account of the differences between states and these entities, including their differing status in international law. Third, a note on the legal terminology used in relation to ANSAs. Many of the legal terms, concepts and rules that this article analyses normally pertain to states only as a matter of hard law. In the discussion of whether they could or should apply to ANSAs too, they are therefore either put in inverted commas or preceded with the words ‘de facto’ (as opposed to ‘de jure’) or ‘quasi-’ to signal the non-binding or soft law character of these terms, concepts and rules when used in relation to these entities. 2. CURRENT TRENDS: EXTENDING HUMAN RIGHTS OBLIGATIONS TO MOST NON-STATE ARMED ACTORS Much of the more recent academic literature accepts that ANSAs are bound by human rights law. It justifies this with the urgent need to enhance the protection of people who come under the influence or control of these entities.25 As legal bases, treaty law and custom are invoked. It has been argued, for instance, that ANSAs are bound by some human rights treaty provisions directly;26 through provisions in preambles and treaty texts referring to responsibilities of ‘individuals’27 or ‘organs of society’;28 by devolution, that is, because a state’s human rights treaty obligations devolve to ANSAs in situations where these entities have displaced state authorities;29 or through the application of the ‘evolutionary principle’ to the interpretation of these treaties resulting in the acceptance of ANSAs as parties to the respective treaties.30 Authors also stipulate that ANSAs are bound by customary human rights law,31 referring to the statements of various UN organs and governments, as well as ‘practice’ of ANSAs themselves; and support both the binding force of treaty and customary law on ANSAs with reference to the de facto control theory.32 Numerous resolutions of the UN Security Council, the UN General Assembly (UNGA) and the UN Human Rights Council (UNHRC) as well as reports of UN Inquiry Commissions and special procedures mandate-holders set up by the latter also indicate that ANSAs could bear human rights obligations.33 Surprisingly, this literature and UN documents have not examined the fundamental question of whether ANSAs can at all exercise (quasi-) jurisdiction, and thus potentially acquire human rights obligations for this reason.34 After all, human rights obligations—usually of states—towards specific individuals arise only when jurisdictional links exist between a state and these specific individuals.35 This article suggests that the jurisdiction question is an important one to address in the discussion about ANSAs as potential human rights duty-bearers, for four inter-related reasons. First, it is essential to better understand what military and institutional capacities and normative characteristics ANSAs should display to be capable of complying with human rights obligations. There are capacity-related and normative reasons why states’ concrete human rights obligations are based on jurisdictional links with individuals—reasons which cannot be ignored when ANSAs’ potential human rights duties are being discussed. Second, the notion of jurisdiction is linked to and thus helps to reveal the general character of legal human rights and the obligations flowing from them. States’ and the broader international community’s at least to some extent reasonable reluctance towards recognising all ANSAs as explicit bearers of human rights duties in treaty or customary law is based on this general character: that giving human rights obligations to any entity will unavoidably also grant this entity considerable privileges. Third, shedding light on these two inter-related aspects through an examination of the jurisdiction question will allow to develop a narrowed-down understanding of a limited category of ANSAs that should potentially become human rights duty-bearers. This understanding will arguably stand an increased chance of being explicitly endorsed by states and the broader international community in treaty or customary law, precisely because it will enable ANSAs in question to comply with these potential obligations and will ‘empower’ or ‘privilege’ only those ANSAs that display certain normative characteristics. An eventual explicit legal endorsement—complementing the various legal arguments brought forward in the literature mentioned above—would increase legal certainty, and finally, enforcement for the benefit of individuals who find themselves under the control or influence of ANSAs. Fourth, the results of a jurisdiction-based analysis open up the current discussion that focuses primarily on ANSAs’ possible human rights obligations to other complementary, and potentially normatively more compelling ways, of developing international law binding these entities. 3. THE NOTION OF JURISDICTION AND THE CHARACTER OF HUMAN RIGHTS, HUMAN RIGHTS DUTIES AND THEIR BEARERS To determine whether ANSAs could potentially obtain human rights obligations, first of all more light needs to be shed on the notion of jurisdiction. The numerous jurisdiction clauses in regional and international human rights treaties, for example Article 1 of the European Convention on Human Rights (ECHR),36 Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR)37 and Article 2(1) of the Convention on the Rights of the Child (CRC),38 indicate that for states, concrete human rights obligations only arise out of jurisdictional links between a specific state and a specific individual. Jurisprudence concerning human rights treaties that do not contain explicit jurisdiction clauses, for example the International Covenant on Economic, Social and Cultural Rights (ICESCR),39 confirm that also under these treaties, states’ duties depend on jurisdiction.40 A. Jurisdiction as Effective, Overall and Normative Control or Power Following Besson’s definition of jurisdiction, it is suggested that as a threshold criterion,41 jurisdiction amounts to a state’s ‘effective, overall and normative power or control’42 over persons. This definition is relied on here because of its full grounding in the broader normative logic of human rights law as well as in a thorough analysis of ECtHR jurisprudence. Unlike other43 definitions that focus primarily on the element of ‘effective’ or ‘actual’ control,44 it also highlights the unitary institutional and normative elements of control that characterises human rights jurisdiction. This aligns well with this article’s aim to specify not only the military/coercive and institutional capacities that ANSAs will need to potentially become human rights duty-bearers but also their normative characteristics that will allow them to comply with these obligations. Summarising Besson’s findings, effective control implies that state power is ‘exercised, and not merely claimed’.45 It thus entails a state’s coercive ‘capacity to bring a situation as it is in line with as it should be.’46 Overall control implies that power is ‘exercised over a large number of stakes, and not one time only and over a single matter only.’47 Whilst the ECtHR mentioned ‘overall’ control in the early case of Loizidou,48 in later judgments it refers to ‘total and exclusive control’49 or ‘full and exclusive control … exercised in a continuous and uninterrupted manner’.50 This also confirms the Court’s statement in the much criticised Banković decision that Article 1 of the ECHR does not admit for a ‘“cause-and-effect” notion of jurisdiction’,51 which, for example, excludes ‘instantaneous extraterritorial act[s]’52 of power from the notion of jurisdiction, as the Grand Chamber confirmed in its 2010 Medvedyev and Others v France judgment.53 Normative control—the normative element of jurisdiction—can be detected in the ECtHR’s frequent references to (political and legal) ‘authority’54 or ‘public powers normally exercised by [a sovereign] government’.55 It implies that control is exercised ‘in a normative fashion so as to give reasons for action, and not as mere coercion’,56 or, in other words: in a non-arbitrary, (domestic57) law based fashion.58 The normative element of jurisdiction in particular, but also the two other elements, are grounded in two interrelated reasons which also shed light on the democratic and institutional character of human rights, human rights obligations and of their bearers, and thus on the type of legal and political authority that human rights law envisages duty-bearers to exercise. Third, they are supported by states’ obligations under the right to self-determination. The first reason is the connection between human rights, democracy59 and equality60 that is deeply enshrined in all regional and global human rights treaties, as well as in most domestic human rights (constitutional) law.61 Provisions in these treaties and domestic law, as well as jurisprudence of domestic, regional and international human rights courts and UN treaty bodies, confirm that the exact content and scope of human rights duties which are abstractly defined in global and regional treaties and jurisprudence, need to be specified in the local context62 and, in case of conflicting human rights duties or their conflict with public interests, fairly balanced63 in domestic laws64 and policies.65 This specification and balancing in national law and policies must be repeatedly justified and thus legitimised through participative, and ultimately democratic, processes, taking account of the (political) equality of rights-holders who find themselves under a particular state’s jurisdiction and who will be affected by these laws and policies. This is clear, for example, from the ECtHR’s and UN treaty bodies’ interpretation of the ‘determined by law’/‘protected/prescribed by law’/‘lawful’66 and ‘necessary in a democratic society’67 requirements,68 and their (implicit) recognition that domestic executive, legislative and judicial authorities should interact effectively to ‘secure’,69 and even develop, human rights protection in domestic law and policy in line with evolving societies, their members’ collective preferences, and changing circumstances.70 It is also confirmed by equal political participation rights,71 as well as frequent calls on states to ensure ‘the participation of the population’72 in domestic decision-making and planning processes related to the domestic implementation of human rights, and UN treaty bodies’ announcements that, when evaluating states’ compliance with international human rights treaties, they ‘look at whether implementation … complies with democratic principles’.73 Moreover, UN treaty bodies as well as the ECtHR have explicitly observed that human rights shall be protected in democratic systems: for example, the CESCR has confirmed that the ICESCR ‘neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps [to be taken to implement socio-economic rights] …, provided only that it is democratic’;74 whereas the ECtHR has long held that ‘democracy is the only political model contemplated by the Convention and, accordingly, the only one compatible with it.’75 The second and related fact that underpins the three elements of jurisdiction indicated above and that further reveals the character of human rights duty-bearers is that human rights obligations can only be implemented through a broad and unitary institutional framework comprising of an executive, an (elected) legislature and an independent judiciary. This comes through in many reports of UN special procedures mandate-holders referring to obligations of states to ‘construct permanent structures and pathways’76 or a ‘wider enabling environment’77 through which human rights can be implemented at national level, implying effective and overall control. Only institutions have the capacity to specify, consolidate and balance the obligations arising from the equal human rights of all individuals, spanning many inter-related subject matters and policy areas, and allocate these obligations, and resources for their implementation, to executive and administrative, legislative or judicial authorities within a state to be discharged effectively.78 It also highlights that implementing human rights duties frequently requires far-reaching capacities, including access to information and resources—a practical reason for supporting the tying of human rights obligations to jurisdiction (control) exercised through institutions. Third, the understanding of jurisdiction as effective, overall and normative control by states over persons is supported by states’ obligations under the right to self-determination that is codified in common Article 1 of the ICCPR and ICESCR. By virtue of this right, ‘all peoples’ (that is, the entire population of a state79 and/or (political) subgroups80) have the right to ‘freely determine their political status and freely pursue their economic, social and cultural development’.81 Understood outside the colonial context,82 common Article 1 obliges states to set up a government ‘representing the whole people belonging to the[ir] territory without distinction of any kind’83 that enables such (internal84) political, social, economic and cultural self-determination in an inclusive fashion, that is, by respecting the political equality of all individuals in this territory and, in addition, without discriminating against any subgroup.85 Described also as ‘a right to be free from an authoritarian regime’,86 the right to self-determination envisages obligations to establish representative democratic institutions87—if need be and depending on context through granting of regional autonomy and/or federal or consociational arrangements to allow for accurate representation of minorities and other subgroups within larger structures.88 These three points suggest that the control or power (authority) that characterises the exercise of jurisdiction should indeed go beyond the exercise of this control or power through mere coercion (effectiveness). It should be broad (overall) and have a normative dimension: it should (at least claim to) be justified, based on (domestic) law adopted through reasoned political and legislative procedures of democratic or democratising institutions that protect everyone’s human rights equally and with the genuine assent of the people who come under this control or power.89 B. Presumption of States’ Territorial Jurisdiction and Exceptional Exercise of ‘Spatial’ and ‘Personal’ Extraterritorial Jurisdiction Normally, a state’s human rights jurisdiction is exercised over persons on its own territory (that is, within its internationally recognised land, sea and airspace borders),90 and there is a (rebuttable) presumption that states indeed exercise such jurisdiction.91 This first reflects the prominent position of states in international law92 that allows them to sign and ratify human rights treaties, presuming that they preside over ‘(democratic) societies’ within their territories and that they will have the institutional capacities and normative characteristics required to progressively implement human rights within their territories in light of the collective preferences of the population. Second, this is based on the notion of jurisdiction (as a function of state sovereignty) in international law93, which denotes the (exclusive) competence of the territorial state to ‘regulate or otherwise impact upon people, property and circumstances’,94 that is, to prescribe, enforce and adjudicate, principally (but not exclusively95) on its territory. Jurisdiction under international law authorises and thus reinforces states’ exercise of (human rights) jurisdiction, which is always a matter of domestic law,96 on their own territories.97 As a consequence of their predominant position in international law and the overlap of human rights jurisdiction and jurisdiction in general international law when the former is exercised on states’ own territories, states also retain (limited) human rights obligations towards individuals on their own territories even in situations where they have lost control over all or parts of these territories. In other words, they retain these obligations even in situations where the presumption of their (human rights) jurisdiction over their territory or parts of it has successfully been rebutted.98 In such cases, states remain under an obligation to take appropriate measures to regain their effective, overall and normative control over their territories and its people to be able to implement their full human rights obligations in line with the collective preferences of these people.99 Extraterritorially, states can exercise human rights jurisdiction in a general form over all people on the foreign territory over which a state has overall, effective and normative control, often referred to as ‘spatial’ extraterritorial jurisdiction;100 or in a more direct, personal form, that is, as effective, overall and normative control over a person outside the state’s official territory, often referred to as ‘personal’ extraterritorial jurisdiction.101 The exercise of ‘spatial’ or ‘personal’ extraterritorial jurisdiction can be legal under international law. This is the case when it overlaps with a state’s (extraterritorial) exercise of jurisdiction under international law, for instance when a state acts legally through its diplomatic or consular agents102 or with the consent of the state on whose territory it exercises its jurisdiction.103 The exercise of extraterritorial jurisdiction can, however, also be illegal under international law, for example, when exercised as a consequence of a state’s illegal military presence on foreign territory.104 C. Evidence to Establish Jurisdiction With a view to further isolate the abstract capacities and normative characteristics that states need to have to enter into a relationship of jurisdiction with specific individuals and thus to obtain human rights duties towards them, the following examines the evidence required to establish whether a state exercises jurisdiction in form of effective, overall and normative control over individuals. Due to the (rebuttable) presumption of states’ jurisdiction on their own territories, the evidence required to establish whether jurisdiction is indeed exercised is primarily made explicit in judgments and documents concerning extraterritorial jurisdiction. Therefore, the following analysis relies mainly, though not exclusively, on these judgments and documents. As a preliminary caveat, one problematic aspect of the ECtHR’s jurisprudence in particular has to be noted: despite general claims to the contrary,105 in its judgments the ECtHR does not normally separate the analysis of the evidence it requires to establish control for jurisdiction purposes from the analysis of evidence it needs to attribute a separatist entity’s acts to a state.106 This sometimes complicates the establishment of evidential requirements for jurisdiction in judgments that involve such entities. (i) Effective control The ECtHR regularly relies on a state’s military presence and/or military support for a local administration on the territory of another state as evidence of effective (extraterritorial) control.107 To determine this military strength and/or support, the ECtHR has taken account of the number of troops on the ground108 (infantry and air force), the number of checkpoints operated, the frequency of patrols carried out,109 and the presence of weapons, military equipment, vehicles and helicopters (including their transfer to a local (separatist) administration).110 It has also considered the provision of military expertise to and the signing of military cooperation agreements between a state and a local (separatist) administration,111 reports of international governmental and non-governmental organisations on the presence of state military personnel and its support for the local administration as well as the statements of the respective states’ officials.112 When evaluating this evidence, the Court does not separate strictly between the presence of a foreign states’ military personnel and equipment and that of a ‘separatist’ entity. The HRCttee and the CESCR have also relied on military presence to establish ‘effective’ (extraterritorial) control of a state.113 The ECtHR furthermore seems to recognise that control can be effective without considerable military presence, but by way of a state’s general ability to swiftly make its control felt. It has, for example, referred to Russia retaining ‘decisive influence’114 over the separatist entity ‘Moldavian Republic of Transdniestria’ (MRT) following its observation that Russia had downsized its military presence in the MRT significantly over time,115 implying that Russia retained its potential to exercise effective control.116 In cases where the ECtHR and the HRCttee accept evidence of ‘personal’ effective control, they have regularly taken note of the presence of foreign military personnel that manned checkpoints, giving them ‘control over persons passing through [them]’117, run compounds and prisons that were ‘entirely’118 or ‘total[ly] and exclusive[ly]’119 controlled by them, and carried out security patrols during which they ‘exercised … control over individuals killed [or otherwise affected] in the course of such … operations’.120 In Öcalan v Turkey, the Court noted that Turkish officials acting on Kenyan soil ‘physically forced’121 Mr Öcalan to return to Turkey. (ii) Overall control To establish overall (extraterritorial) control, the ECtHR relies on evidence of various forms of economic, financial and political state support for separatist entities in another country that will span various, often interrelated, measures concerning the implementation human rights, including the institutional framework needed to devise such measures. In regard to economic and financial support, the ECtHR takes account for instance of agreements between states and local (separatist) entities concerning debt relief,122 generous ‘inter-state loans’ to (separatist) local administrations,123 the supply of gas on advantageous financial terms,124 the strong involvement of state-controlled companies,125 and the provision of ‘humanitarian’ aid in form of payment of old age pensions and financial assistance to run schools, hospitals and prisons.126 Concerning political support, the Court recognised political declarations backing (separatist) local authorities as evidence,127 the ‘interchange of prominent politicians’ in the (separatist) local administration and the administration of the supporting state,128 and, last but not least, the presence of law enforcement agents and the extension of the judicial powers by the supporting state to the separatist entity.129 Pronouncements of UN treaty bodies point more indirectly to evidence of ‘overall’ control, for example by accepting that an occupying power like Israel has the power to interfere with a wide range of (interrelated) human rights of the people who come under its ‘overall’ control.130 In cases concerning ‘personal’ extraterritorial jurisdiction, evidence of ‘effective’ control summarised under (i) above also designates ‘overall’ or ‘total’ control as this is inherent in an individual’s detention or use of force against him at checkpoints or during security patrols. (iii) Normative control It is more difficult to clearly separate out pieces of evidence required to specifically establish the normative element of jurisdiction from the total evidence relied on by the European Court of Human Rights and UN treaty bodies to prove the exercise of (extraterritorial) jurisdiction. Some evidence, however, appears in form of recognition that states acting extraterritorially apply and enforce their domestic law extraterritorially,131 that (separatist) local authorities adopt laws of the supporting state,132 and/or that extraterritorial acts are carried out on the basis of extraterritorially applied security regulations and United Nations Security Council resolutions,133 Memoranda of Understanding between troop-sending or troop-contributing states134 and bilateral agreements135 that indicate that the control and power exercised is not solely based on coercion, but also on domestic and international136 law.137 The Court’s observation of the developments in Iraq in Al-Saadoon and Mufdhi reflects the transition from purely ‘coercive’ to more ‘normative’ control: the ECtHR noted that the United Kingdom ‘exercised control and authority over the individuals detained in … [two British-run detention facilities in Iraq] initially solely as a result of the use or threat of military force. Subsequently, the United Kingdom’s de facto control over these premises was reflected in law’,138 inter alia in UK security regulations, UNSC [that is, United Nations Security Council] resolutions and orders adopted by the Coalition Provisional Authority, the latter temporarily governing Iraq at the time.139 The normative element also shines through in statements by respondent states that support local (separatist) administrations in another state or by pronouncements of these administrations themselves. They have at times claimed that they legitimately govern and legislate on behalf of and/or represent the people that come under the control of the (supported) administration, allegedly promoting these people’s right to self-determination.140 The ECtHR does, however, not rely on or engage with these statements in the substantive parts of its judgments.141 Going beyond jurisprudence on extraterritorial jurisdiction can reveal further aspects of normative control that are not usually made explicit as describing the normative element of jurisdiction in this jurisprudence, due to the fact that ‘spatial’ jurisdiction of states on their own territory is regularly presumed. In line with observations made in Section 3.A on the underpinning reasons for the normative element of jurisdiction, this can come through in the exercise of law-based authority, where these laws are in conformity with the legality standard developed by the ECtHR/UN treaty bodies;142 where law and policy making concerning the implementation of human rights (including limitations and priority-setting) relies on participation of and consultation with affected populations on an equal basis, ideally through democratic or democratising institutions;143 and where the genuine representativeness of these institutions is ensured inter alia through the implementation of equal political participation rights. 4. THE POSSIBILITY OF ARMED NON-STATE ACTORS EXERCISING JURISDICTION AS A MATTER OF FACT The discussion now turns to the question as to whether some ANSAs can exercise jurisdiction in fact (quasi-jurisdiction) as effective, overall and normative control over persons, displaying at least some of the abstract military and institutional capacities as well as normative characteristics of human rights duty-bearers. Could they thus in principle obtain human rights obligations that are similar in character to those of states exercising jurisdiction?144 To determine this, an analysis of selected ANSAs’ practice follows.145 A. Adapting the Evidence Required to Establish Quasi-Jurisdiction of Armed Non-state Actors First, some preliminary considerations ANSAs are not states. They do not, therefore, benefit from the presumption of ‘spatial’ jurisdiction on ‘their own’ territory, and, by extension over all members of a ‘democratic society’ on this territory, in the same way as states do based on the prominent position that the latter occupy in international law and the related reinforcement of the exercise of their human rights jurisdiction on their own territory by jurisdiction under international law.146 Nor can ANSAs’ willingness and ability to exercise effective, overall and normative control be assumed from the fact that they ratified international human rights treaties as long as these entities cannot ratify these treaties.147 For the following evaluation of whether their ‘practice’ amounts to the exercise of quasi-jurisdiction, this first means that more direct evidence will be required of their exercise effective, overall and, in particular, of normative control that is not always made explicit in ECtHR jurisprudence and UN treaty bodies’ documents concerning states’ extraterritorial jurisdiction that was the primary source of distilling the evidence required to establish state jurisdiction above. ANSAs’ quasi-jurisdiction will not primarily be ‘extraterritorial’, and therefore, taking account of general characteristics of human rights and human rights obligations indicating effective, overall and normative elements of control in jurisprudence and documents that do not explicitly concern extraterritorial jurisdiction is reasonable. Second, this means that the focus in the following will primarily be on establishing whether ANSAs might in fact exercise ‘spatial’ quasi-jurisdiction. Given that ANSAs do not regularly run ‘diplomatic and consular missions’ or apply their ‘(domestic) laws’ adopted through democratic or democratising institutions ‘extraterritorially’ in an exercise of ‘personal’ quasi-jurisdiction, it is suggested that, if at all, ANSAs are able to fulfil all three elements of jurisdiction, in particular the normative one, in the exercise of ‘spatial’ quasi-jurisdiction.148 B. Armed Non-state Actors Exercising Effective Control? Concerning the element of effectiveness, the extent of military presence—personnel and equipment—of an ANSA is to be considered. In particular non-state armed groups that are involved in a non-international armed conflict will regularly consist of a large military wing.149 The number of ANSA ‘military personnel’ and extent of their military equipment varies considerably from entity to entity. The military wing of the Liberation Tigers of Tamil Eelam (LTTE), for instance, had a strength of an estimated 20,000 troops with the capacity to fight on land, at sea and in the air,150 that enabled them to exercise effective control over considerable parts of the Island of Sri Lanka over many years. Similarly, many so-called de facto regimes maintain armed forces that resemble those of states, among them Somaliland,151 the ‘Republic of Abkhazia’ (RoA), the ‘Republic of South Ossetia’ (RoSO), ‘Nagorno-Karabakh Republic’ (NKR) and the MRT.152 There are also a number of strong ANSAs that set up a police force in the territory under their control.153 This designates their ability to exercise effective control also over ‘civilian’ matters that might not be directly related to the ANSA’s armed conflict with a government, should it be engaged in such a conflict, including their ability to enforce their ‘law’. To determine whether effective control is indeed exercised via the presence of military personnel and equipment and/or a police force of an ANSA to count towards the establishment of ‘spatial’ quasi-jurisdiction, it seems that the control over territory and its inhabitants by the ANSA would need to be stable and exclusive.154 In other words, it would need to go beyond a situation where it is unclear whether the government’s or the ANSA’s military and/or police control the territory, and where active hostilities are still ongoing. This transpires from ECHR jurisprudence and its assertion that jurisdiction is not a ‘cause-and-effect matter’,155 and that an entity must be able to make its authority felt swiftly for this authority to be considered ‘effective’.156 For example, in Afghanistan and Nepal, armed groups and the respective governments have been fighting for control over large areas of the respective countries over many years, so that neither exerted exclusive and stable control.157 By contrast, it can be taken as evidence of the exclusive and thus effective control of the LTTE over parts of Sri Lanka for many years that the Sri Lankan police was unable to enter LTTE-controlled areas in order to arrest individuals who had committed crimes on territories under control of the Sri Lankan government, but who had fled to LTTE-controlled territory.158 C. Armed Non-state Actors Exercising Overall Control? ANSAs’ overall control or power over a wide range of stakes can be observed in their engagement in a number of policy areas, spanning the provision and/or facilitation of security,159 the administration of justice,160 the distribution of humanitarian assistance,161 education162 and health care,163 general law making functions164 and collection of taxes,165 the running of de facto civilian (shadow) administrations, including by setting up corresponding ‘shadow ministries’,166 and/or the in part or full co-option of existing administrative structures. Many of these engagements indicate that some ANSAs can display the institutional traits that characterise states as human rights duty-bearers, and allow them to exercise control over various policy areas.167 To qualify as ‘overall’ (and ‘effective’) control, ANSAs’ engagement in arguably at least some of these areas should not only exist on paper, but also in fact and should be exercised over a longer period of time to allow for sustained representative policy-, law-making and enforcement processes to develop. To illustrate this, the developments in Somaliland since it declared its independence from Somalia in 1991 can be contrasted with the situation of the Rassemblement Congolais pour la Democratie Goma (RCD-Goma) operating in the North Kivu province of the Democratic Republic of the Congo between 1998 and 2003. In the former case, institutions have been established as set out in the Somaliland ‘constitution’. Despite the limited means available, these institutions effectively fulfil basic tasks as expected by the population, such as ‘providing security, infrastructure and basic health and educational services.’168 By contrast, whilst it also had elaborated a ‘constitution’ and ‘policy statements’ setting out its plans to engage in numerous inter-related policy areas, the RCD-Goma was unable to implement many of these plans in practice.169 It seems, however, that stable shadow administrations that rely on cooperation with national and international (humanitarian) organisations and/or governments to provide services to the population under their control could be considered to exercise ‘overall’ power or control in cases where they maintain their ability to regulate, direct and oversee the activities of these other actors. This can be justified with drawing analogies to states’ obligations under human rights law in times of armed conflict or other crises, or even in the context of peacetime international cooperation. States frequently cooperate with humanitarian or development organisations or with other states to implement their human rights obligations in line with Article 2(1) of the ICESCR.170 Such cooperation will not normally result in the loss of ‘overall’ control and thus loss of human rights jurisdiction by the respective state. There are examples of ANSA cooperation with national and international humanitarian organisations and/or with governments. The LTTE, for example, whilst keeping its ‘police’ and ‘judiciary’ under its exclusive control in the areas it controlled, cooperated extensively with the Sri Lankan government when it came to the provision of other public services, among them healthcare and education.171 Other ANSAs, in particular those that cannot build their administration on pre-existing structures,172 often rely on UN agencies, other non-UN international humanitarian organisations, non-governmental organisations or religious institutions to provide public services, employing various means to regulate, control and direct these actors.173 D. Armed Non-state Actors Exercising Normative Control? Evidence that ANSAs exercise normative control or power could be found in their statements and legislative and policy measures that are based on already established genuine public support, or that aim to win such support of all sectors of the population under their control or influence by means other than coercion or discrimination, for example, other than by fuelling social, ethnic, religious or other divisions. As indicated in Section 3.A, this would imply respecting the political equality of individuals and offering public justifications for legal and policy measures—something to be achieved through consultative processes, the setting up of representative (democratically controlled or democratising) institutions as well as granting political participation rights and ultimately, allowing for full democratic law—and policy making. In this context, it can be observed that many ANSAs with political aims claim that they act on behalf of the general population or, in pluralist states, all members of a specific subgroup against an (in their eyes illegitimate) government, and that they can represent and protect the interests of the general population or the specific subgroup better than the government. Many ANSAs see themselves as ‘governments in waiting’,174 some directly indicate that they wish to set up democratic governmental structures, and some seem to make genuine attempts to do so. The latter is, however, notoriously difficult to verify because, frequently, there is little engagement of the international community with ‘democratic’ processes conducted by ANSAs.175 It is similarly difficult to establish the foremost motivation behind ANSAs’ efforts to take care of the collective interests of the populations under their influence and control on the basis of individual equality of rights, and thus to establish whether they genuinely aim to set up representative institutions or reform (that is, democratise) existing institutions to enable them to implement human rights in light of the collective preferences of the population. After all, such caretaking can also be reasonable from a short-term military strategic viewpoint to gain the short-term support of the population for ANSAs with ultimately private economic exploitative or exclusionary nationalistic aims. An example in this context is the practice of the National Patriotic Front of Liberia (NPFL), operating in Liberia between 1989 and 1996. Political scientists have referred to the NPFL as a ‘predatory rebel group’ that created all but façades for their criminal and exploitative activities through the adoption of ‘political’ statements and the setting up of a ‘civil administration’.176 However, a few examples of ANSAs’ ‘democratic’ engagements, on paper and in practice, follow that could potentially serve as evidence of genuine attempts. Documents adopted by some ANSAs, including their ‘constitutions’, highlight their intentions to set up democratic and accountable public institutions and governance systems. To give one example concerning Sudan, after it had done little until the early 1990s to establish a civil administration, following pressures created by inter-ethnic conflicts in southern Sudan and by the international community, the Sudan People’s Liberation Movement/Army (SPLM/A) held a series of meetings to build its civilian (democratic) governance capacities. In 1995, it set up the Civil Authority of the New Sudan (CANS), stressing the designated civilian character of this autonomous political structure (distinct from the military command) as well as its representative-democratic character.177 Mampilly notes that the aim of the SPLM/A command with operating CANS was to ‘address local grievances, ameliorating concerns about its autocratic behaviour and ideally engendering loyalty to the rebel government from the disparate ethnic communities of the south’.178 The 2008 ‘Constitution of the Peoples’ of Sudan Liberation Movement’ clearly reiterated its democratic intentions by proclaiming as the first aim of the SPLM/A to ‘build a new Sudan, based on just, democratic, secular system of governance, free will and popular participation of all the people of the Sudan.’179 Similar proclamations have been made in the constitutions of the RoA,180 the NKR181 and Somaliland,182 to name but a few.183 Political scientists have also established that some of these entities do seem to enjoy genuine popular support—among them the RoA, the NKR, the MRT184 and, in particular, Somaliland.185 By contrast, so-called ‘predatory rebel groups’ like the NPFL rarely hold widespread popular appeal.186 In practice, some ANSAs have also structured their administrations in a way that they respect the separation of powers doctrine, have held elections and have even promoted political pluralism through the development of multiparty systems and, more broadly, by allowing a political opposition to operate—all aspects that could be counted as evidence towards the exercise of ‘normative’ control. This has been the case, for example, in the NKR, where multiparty parliamentary elections have been held regularly since 1991, and (it seems, reasonably competitive) presidential elections since 1994. Reports suggest that numerous non-governmental organisations operate freely in the NKR, and that media outlets face few restrictions. This has led to conclusions that despite its deficiencies, the ‘evolving regime in Nagorno-Karabakh appears to be more inclusive [democratic] than in many other Post-Soviet states’,187 including compared to Azerbaijan, the parent state it seceded from, and Armenia, its patron state.188 Similar developments can be observed for instance in the north Syrian territory that was temporarily controlled by the Democratic Self-Administration of Rojava,189 the RoA190 and Somaliland.191 The latter’s unique bottom–up consensus-building processes have led to the adoption of a ‘constitution’ approved by an overwhelming majority of the population through a referendum in 2001, relatively regular elections, and the establishment of institutions that have the potential to become ‘robust champions of a democratic system that is actually reflective of and integrated into the society that it is meant to represent’.192 The ‘democratic’ practice of other ANSAs include various consultation and partnership-building processes with populations under their control. The SPLM/A, for example, generally allowed and supported local educational initiatives in the territories under their control and included in its Education Secretariat so-called school supervisors who were selected by local communities and who were involved in developing, coordinating and supervising educational activities.193 Similarly, though it governed largely by authoritarian means,194 the LTTE engaged in consultations and built partnerships with local community-based organisations, in particular in the areas of reconstruction and social welfare.195 For example, the LTTE Ministry of Education encouraged the establishment of civil society based advisory committees in every district under its control, composed of parents and teachers, that were consulted concerning the regulation and provision of education.196 It also consulted local Tamil residents and civil society in the so-called ‘town-hall meetings’ to give feedback on plans for reconstruction and development of war-affected areas that were devised by the Tamil Eelam Economic Development Organisation that formed part of the LTTE civil administration.197 Another important sign of ANSA exercise of ‘normative’ control will be their setting up or co-optation of an independent and impartial judiciary that will offer ‘effective remedies’ for alleged human rights violations,198 as well as the adoption of ‘laws’ that are in conformity with procedural and qualitative standards required under human rights law. There are indications that strong ANSAs in stable control of territory have established new or co-opted existing ‘courts’ that comply at least with some fair trial requirements set out in international humanitarian law and human rights law, in particular in ‘criminal’ cases related to an ongoing conflict.199 Less is known about these courts’ overall independence—that is, their independence vis-à-vis an ‘ANSA-executive’, impartiality and the duration of its members terms of office200—as well as the (domestic) ‘legal bases’201 on which they operate. Some examples can nonetheless be given. Although with some reservations, reports indicate that the ‘LTTE-judiciary’ was largely independent of the ‘LTTE-executive’, something that contributed to it achieving a high level of legitimacy among the population under LTTE-control.202 Another example concerns Somaliland. The Somaliland ‘Supreme Court’ has been accepted by both the ‘government’ and the ‘opposition’ as an independent arbitrator in confirming an incredibly close result in the ‘presidential’ elections in 2003, whose decisions have been respected and complied with not only in this delicate case.203 This suggests that the Somaliland ‘judiciary’ enjoys a degree of independence.204 Relatedly, little is known about the details of these ANSAs’ ‘law making processes’ and the quality of their ‘laws’, including ‘criminal laws’, in particular whether these processes potentially comply with the principle of ‘democratic control’ that forms an important part of the human rights legality standard.205 There are indications that some ANSAs’ ‘laws’ could comply with the quality standards, including ‘laws’ that were adopted or adapted by these entities on the basis of existing (state) law.206 For example, the ‘constitution’ of Somaliland specifies that ‘crimes and (their) punishment shall be laid down by the law’,207 that ‘no person shall be detained in a place which is not determined by law’,208 and that law should ‘lay down the maximum period in which a person can be detained in custody pending investigations’.209 In regard to restrictions of several individual rights, the ‘constitution’ holds that such restrictions can only be imposed as ‘determined by law’210 and ‘in the public interest’.211 Moreover, it establishes that all laws adopted by the two chamber parliament and signed by the president shall be promulgated and published in the Official Journal.212 This indicates that Somaliland laws might indeed comply with some of the foreseeability, the sufficient precision and the accessibility requirements that define the legality standard in human rights law. Similar inferences can be drawn by Article 79 of the NKR ‘constitution’ which establishes that ‘when restricting basic rights and freedoms, laws must define the grounds and extent of restrictions, be sufficiently certain to enable the holders and addressees of these rights and freedoms to display appropriate conduct’.213 In other cases, outside scrutiny by the UN Special Rapporteur on Extrajudicial Executions found that the ‘criminal law’ adopted by an ANSA did not define the elements of the criminal offences, leading to ‘non-compliance’ with the required quality standards.214 E. Conclusions on the Exercise of Jurisdiction by Armed Non-state Actors as a Matter of Fact To sum up, based on the brief analysis above, it is not excluded that very strong ANSAs may, as a matter of fact, be able to exercise ‘spatial’ human rights jurisdiction as effective, overall and normative power or control over people, and may thus potentially obtain human rights obligations. This is the case when ANSAs have considerable military strength, devise and implement policies and adopt ‘legislation’ concerning many inter-related subject-matters and areas relating to the implementation of human rights, set up new or co-opt existing administrative structures and institutions and engage in and encourage equal participatory, even democratic, processes that enforce their claim to act as genuine representatives of the people under their influence and control—in short, when they ‘assume … the exercise of some of the public powers normally to be exercised by a sovereign government.’215 This is broadly in line with findings of various UN Inquiry Committees,216 Reports of UN Special Rapporteurs217 and the OHCHR218 which have tentatively suggested that an ANSA that ‘exercises significant control over territory and population and has an identifiable political structure’219 or that ‘exercise[s] … de facto control over territory akin to that of a Government authority’,220 and that aims to ‘represent a people before the world’221 should be considered as having human rights obligations.222 The latter in particular reiterates that it is ANSAs with specific political (that is, public) aims223—namely to gradually set up new democratic or democratise existing administrations through which they can implement human rights on an equal basis for everyone under their control or influence—that could in theory obtain human rights obligations. On the other hand, in particular the application of the normative element of jurisdiction points into the direction that ANSAs without these specific public aims would not be bound by human rights law. If ANSAs challenge the government in power with the aim to gain control over territories in order to oversee criminal activities such as drug trafficking or the exploitation of natural resources to enrich their members exclusively,224 they cannot (and arguably should not) become human rights duty-bearers. The same would apply to groups that aim to set up suppressive regimes based on, for example, ethno-nationalistic, religious, exploitative or even genocidal ideologies, acting, if at all, in the interest of narrowly defined subgroup of the affected population. 5. JUSTIFYING THE LIMITED NUMBER OF ARMED NON-STATE ACTORS AS POTENTIAL HUMAN RIGHTS DUTY-BEARERS An evaluation of this finding follows, suggesting that it should be endorsed for three reasons. It is first submitted that accepting only a limited category of ANSAs as full human rights duty-bearers is normatively justified. This is because it would potentially allow for a development of international law that supports the struggle and emerging authority of ANSAs with genuine democratic political aims, ready and able to protect human rights. At the same time, international law would retain a neutral posture towards the (armed) struggle of other, less legitimate non-state actors by regulating them through international humanitarian law.225 The support from international law would come in the form of accepting the privilege that any entity that is accepted as a human rights duty-bearer is inevitably endowed with: the ‘privilege to owe rights’226 and to exercise (legitimate) authority. This privilege emerges inter alia in the specific law making functions—even obligations227—any human rights duty-bearer must have in order to comply with their duties.228 These law making functions include a privilege to determine and specify the (domestic) ‘limitations’ of human rights, also regulating other privileges such as to (non-arbitrarily) detain and to (fairly) try individuals. As explained in Section 3.A, these privileges come through also in the normative element of jurisdiction and are grounded in the intrinsic relationship between equality, human rights and democracy permeating human rights law. The continued exercise of jurisdiction by any potential non-state human rights duty-bearer will lead to the establishment of legal and political institutions that derive their authority not primarily from their ability to use force against the governed, but from democratically controlled (that is, justified) legislative, executive and judicial processes. Especially if exercised over a longer period of time, this will threaten the legitimacy of governments and potentially of established state borders. This is so even if this possibility is regularly dismissed in the literature and UN reports reviewed above that call for binding most ANSAs to human rights law.229 Moreover, it can be recalled that an ANSAs’ (human rights) law making powers will come to influence not just the people who come under the (quasi-) jurisdiction of these entities. It will potentially also impact the development of international human rights law should it be accepted in a second step that their (non-state) ‘domestic human rights law and practice’ can flow into the evolving, transnational consensus-based interpretation of international human rights law.230 This could happen for instance through their potential participation in the reporting procedures of the UN treaty bodies and/or individual complaints procedures of regional human rights courts. These privileges should arguably only be given to ANSAs that can genuinely show that they respect the political equality of, and thus, represent the people on whose behalf they challenge the incumbent government’s power and existing constitutional arrangements, expressed in their genuine, even if incremental, ability to de facto exercise human rights jurisdiction in form of normative as well as effective and overall control. Not least, this would guard the interests and equal rights of the people affected. It would prevent any legitimisation of (‘domestic’) laws adopted by ANSAs with an autocratic, exploitative or genocidal agenda by endowing them with ‘law making’ powers through human rights law prematurely. Second and relatedly, it is submitted that promoting only a limited category of ANSAs as potential human rights duty-bearers is also a pragmatic suggestion to develop international law binding ANSAs. This is against the background of states, but also the broader international community’s,231 strong reluctance to recognise all ANSAs as human rights duty-bearers. At a time when state consent remains an inescapable aspect of international law making,232 including when it comes to binding non-state actors, this reluctance cannot be ignored. The reluctance is at least partly grounded in the aforementioned authority-legitimising attribute of human rights jurisdiction.233 States have historically been unwilling to expand non-state armed groups’ obligations under international humanitarian law based on the fear that this will ‘legitimise’ their struggle234 even though international humanitarian law obligations are by no means as tightly connected to equality and thus democracy as human rights law and human rights obligations. It can thus be expected that their aversion to endorse human rights obligations of all ANSAs will be even greater. States’ unwillingness comes forth in their at times fierce opposition to any outside engagement with ANSAs—through humanitarian interaction,235 and all the more through potential human rights capacity-building activities aimed at ANSAs’ de facto administrations.236 Awareness for the authority-legitimising attribute of the exercise of human rights jurisdiction and the wider practical, legal, democratic and institutional complexities that come with recognising ANSAs as full human rights duty-bearers,237 also shines through in the reserved approaches the ECtHR, the UN Security Council, the UNGA and the UNHRC take when it comes to explicitly recognising ANSAs as human rights duty-bearers. The UN Security Council, the UNGA and the UNHRC have condemned human rights `violations' or `abuses'238 committed by non-state armed groups and other ANSAs in numerous resolutions in general terms. However, they remain remarkably vague when it comes to describing the legal basis for as well as the scope of ANSAs’ alleged human rights obligations. They have also been silent about the relationship of these potential ANSA-obligations to states’ human rights obligations. When it comes to the ECtHR, it seems not to exclude the possibility that a state can be prevented from exercising its territorial jurisdiction due to the existence of ‘a local authority sustained by rebel forces’,239 that is, a ‘rebel authority’ or ‘another [non-state] entity’240 not dependent on the support of another state or other states. However, so far at least, the Court has been very careful to only accept states’ requests to rebut the presumption of their jurisdiction over their own territory when the control of the territorial state was lost to another Convention state exercising extraterritorial jurisdiction through military occupation or its support for a ‘separatist’ entity, and not to an independent ‘rebel authority’.241 The Court even maintained this stance in cases where it has been questioned whether there was indeed a ‘high integration in virtually all important matters’ between the separatist entity (the NKR) and the patron state (Armenia) so as to establish extraterritorial jurisdiction of the patron state.242 There are indications that there are two situations in which states and the wider international community are likely to soften their strong stance against endorsing ANSAs’ potential human rights obligations. These two exceptions further support the proposition that only a limited category of ANSAs should potentially be recognised as human rights duty-bearers. These are two exceptional situations where the authority-legitimising effects that exercising human rights jurisdiction has for an ANSA does either not directly threaten an incumbent government’s legitimacy, or where the incumbent government has lost this legitimacy due to its conduct. An example of the first scenario is a situation where a state has been ‘without a central government’243 for several years. This had been the case in Somalia between 1991 and 2000, and the UN Committee against Torture therefore found that in this exceptional situation, ‘warring factions … exercise[ing] certain prerogatives that are comparable to those normally exercised by legitimate governments’,244 could be found in violation of the prohibition against torture. Examples of the second scenario are situations where an incumbent government conducts itself in a grossly inadequate way, as denoted in the nascent international law doctrines of the ‘responsibility to protect’245 and ‘remedial’ self-determination.246 This is arguably, even if only very indirectly, recognised by the ECtHR in its decision Azemi v Serbia.247 In this case, the ECtHR did not insist that Serbia was under an obligation to re-establish full jurisdiction over Kosovo248 as it regularly does in other cases where a state’s presumed jurisdiction over its own territory has been rebutted.249 This tentatively indicates that the ECtHR does no longer clearly assume that Kosovo is Serbian territory. This brings the discussion neatly to the third reason why the above finding should be supported: the right to self-determination, in particular political accounts of this right. These accounts argue that only those subgroups within a state or groups that claim to speak in the name of the whole population of an existing state250 should become holders of this right that have ‘earned’ it through constructing ‘themselves dialogically and politically’ following a certain path.251 This distinguishes these political accounts from accounts that attempt to define the ‘peoples’ as the holders of the right to self-determination in the abstract based on ethnic, racial, religious, linguistic, cultural or other ‘objective’ criteria,252 an approach that has arguably often fostered undue divisiveness and fragmentation of states and communities.253 Whilst not precluding any type of political arrangements for the ultimate (internal or external) exercise of this right that further the ability of groups to govern themselves through representative institutions,254 in the political account of the right to self-determination different options of political arrangements shall only be given to ‘peoples’ who ‘earn’ it through their behaviour. This behaviour should manifest certain normative traits, similar in many respects to the normative element of control required for the exercise of human rights jurisdiction. Among the traits are first that the group or entity demanding the recognition of their right to self-determination should indeed act with the assent of the members of this group, and not simply claim to speak in the name of these members.255 In other words, the group must indeed represent the interests of its members, including their collective interest to self-determine. This requirement can be detected in the historical UN-practice of recognising National Liberation Movements as representatives of colonised people exercising their right to self-determination.256 This also implies that the group must be willing to secure the individual rights of all their members on an equal basis, including equal political participation rights.257 Second, those claiming self-determination must show genuine consideration for the potentially negative and disruptive implications of their exercising this right in whatever (internal or external) form for existing, even if imperfect, political institutional arrangements of a state. And, in case we are concerned with a subgroup within a state as a potential rights-holder of the right to self-determination, they must demonstrate concern for the protection of the equal rights of the people who are not part of this subgroup.258 This would be in line with state obligations flowing from the right to self-determination set out above,259 which these groups would need to comply with once they become (state) duty-bearers as a result of exercising their right. 6. TWO COMPLEMENTARY WAYS OF DEVELOPING INTERNATIONAL LAW BINDING ARMED NON-STATE ACTORS A strong objection can be voiced against the findings proposed here: that it leaves many individuals without sufficient protection who come under the influence or control of ANSAs that do not exercise quasi-jurisdiction as effective, overall and normative control.260 This objection can be met with a proposal to examine two complementary approaches to develop the law binding ANSAs that would enhance the protection of affected populations, closing gaps in international humanitarian law of non-international armed conflicts. These two complementary approaches shall be briefly outlined here, though their full analysis must be left for another article. First, the so-called emerging ‘responsibilities for human rights’261 that do not depend on jurisdiction could be developed for ANSAs. Their overarching aim, which, in turn, determines their scope and character, is to enable and assist states of jurisdiction to discharge their human rights obligations that they owe to the people under their jurisdiction.262 There are indications that they address ANSAs.263 They could firstly be relevant for decentralised or community-embedded armed groups to which international humanitarian law might not apply because they do not fulfil the organisational requirements of international humanitarian law and/or hostilities have not reached the necessary intensity.264 In such situations, ‘responsibilities for human rights’ could lend normative force to genuine attempts of discontented groups that demand changes to existing political arrangements within a state. For example, this could concern situations in which these arrangements are authoritarian, repressive or exploitative, or otherwise unsuitable to effectively protect the human rights and political equality of all individuals affected by them. For non-state armed groups who are engaged in a non-international armed conflict but are not in stable control of territory, ‘responsibilities for human rights’ could secondly complement these groups’ obligations under international humanitarian law. Second, the law of military occupation could be expanded to non-international armed conflicts. It could pose similar or modified international humanitarian law obligations on ANSAs with effective control over territory that bind occupant states. If compared to human rights law possibly binding ANSAs as discussed above, the main advantage of this approach would be that it would potentially bind all ANSAs meeting the threshold criterion set out in Article 42 of the 1907 Hague Regulations, regardless of their political agenda and normative characteristics. Whilst there will likely be an overlap in the threshold of application of human rights law (through jurisdiction) and the law of occupation when it comes to the effectiveness265 and (overall)/unicity266 of control that an entity must exercise,267 there will be a difference concerning the normative element that was discussed above as an important element of human rights jurisdiction. The law of occupation takes account of the military interests of the occupying power which by definition exercises effective control over the occupied territory without the volition of the ousted sovereign government.268 At the same time, the law of occupation aims to preserve the interests of the ousted sovereign government, including the political and legal relationship between this government and the occupied population. This is why the authority of an occupying power derives solely from its ability to use coercive means against the occupied population.269 For the same reason, the law of occupation limits the legislative powers of the occupying power as well as its powers to change the institutional set-up of the governance structure of the occupied territory.270 If applied to non-international armed conflicts and ANSAs, it would, thus, oblige an ANSA exercising effective control over territory to first and foremost apply existing (domestic) law and ensure that existing administrative structures are able to provide basic services to the population.271 The ‘regime’ would be autocratic or technocratic, resembling a ‘commissarial dictatorship’272 rather than an emerging ‘representative democracy’ based on the principles of political equality and popular control of government as envisaged if human rights law were to apply.273 In particular volatile situations of on-going armed conflicts where it is often difficult to determine the genuineness of the political aims of the non-state armed group(s) involved, and where control over territories and populations can keep shifting, this seems to be an attractive option to secure the protection of affected populations, at least in the short term.274 7. CONCLUDING REMARKS This article has argued that only a limited number of ANSAs should potentially become human rights duty-bearers: those that exercise de facto (human rights) jurisdiction and thus have considerable institutional and military capacities, as well as specific normative characteristics. It tentatively specified these capacities and characteristics with an analysis of ANSAs’ practice that indicates that some of these entities may indeed exercise quasi-jurisdiction. The argument was justified by highlighting the wider consequences of accepting ANSAs (and any other non-state actor) as human rights duty-bearers: it will inevitably also endow these entities with privileges, among them privileges to make (democratic) ‘law’, and it will thereby legitimise their authority. This is grounded in the normative logic of human rights law which emphasises the inter-relatedness of human rights, equality and democracy (political community) that also permeates the notion of jurisdiction and can be further supported by a political understanding of the right to self-determination. Relatedly, it was argued that accepting only a limited category of ANSAs as human rights duty-bearers would first be normatively compelling because it would legitimise the de facto authority of only those ANSAs that are ready to adhere to human rights, democracy and equality. Second, it would be pragmatic, because it takes account of states’ and the international community’s (at least to some extent) reasonable reluctance to accept that all ANSAs should become bound by human rights law. Third, it would be realistic because it takes account of the very capacities and normative characteristics that any entity needs to have to be able to gradually implement various human rights obligations through (democratic or democratising) institutions. The article ended in the suggestion to explore two complementary ways to develop international law binding ANSAs to close remaining gaps in international humanitarian law of non-international armed conflicts: through ‘responsibilities for human rights’ and through adapting the law of occupation to non-international armed conflicts. The detailed exploration of these two complementary ways in light of the ‘practice’ and ‘opinio iuris’ of various types of ANSAs has to be left for another article, as has a more extensive analysis of ANSAs’ ‘practice’ and ‘opinio iuris’ that potentially establishes their exercise of quasi-jurisdiction, complementing the findings arrived at in Section 4. Overall, such a comprehensive analysis promises to open up the debate about how to develop international law binding ANSAs beyond the sometimes rather technocratic analysis that currently dominates this debate. It will bring back into focus the underlying rationales of both international humanitarian law and human rights law that can differ considerably. Taking them into account will encourage a debate about how future legal developments might ensure—including through appropriate priority-setting and balancing—both the humanitarian protection of conflict affected populations and the support for legitimate political struggles for a better protection of human rights and political equality through representative domestic institutions, and thus for genuine self-determination. ACKNOWLEDGEMENTS Research for this article was conducted with the generous support of a Leverhulme Trust Early Career Fellowship (ECF-2016-666). The author would also like to warmly thank Professor Thérèse Murphy and HRLR’s anonymous reviewers for their insightful comments on earlier versions of this article. Thanks also for constructive feedback to participants of panels held at AHRI 2018 and IVR 2019, a research seminar organised by the Health & Human Rights Unit at Queen’s University Belfast, School of Law, in November 2018 and a Leverhulme Trust funded workshop on armed non-state actors and international law held in Belfast in April 2019. All errors remain the author’s own. Footnotes 1 For example, UNAMI/OHCHR, Unearthing Atrocities: Mass Graves in Territories Formerly Controlled by ISIL, 6 November 2018; Report of the UN High Commissioner for Human Rights, Violations and Abuses Committed by Boko Haram and the Impact on Human Rights in the Countries Affected, 9 December 2015, A/HRC/30/67; Murray, Human Rights Obligations of Non-State Armed Groups (2017) at 1–7; Fortin, The Accountability of Armed Groups under Human Rights Law (2017) at 35–59. 2 See below at Section 4. 3 Sivakumaran, The Law of Non-International Armed Conflict (2012). 4 See ibid. at 164–79 and 236–52 for the international humanitarian law ‘definition’ of a non-international armed conflict and the scope of application of the law of non-international armed conflicts. 5 Fortin, ‘The Application of Human Rights Law to Everyday Civilian Life under Rebel Control’ (2016) 63 Netherlands International Law Review 1. 6 The scope of international humanitarian law extends throughout the territory in which hostilities take place, but it must involve a person protected by the relevant international humanitarian law treaty or customary law (personal nexus): see Tadic IT-94-1-AR72, Decision on Jurisdictional Appeal, Appeals Chamber, 2 October 1995 at paras 69–70; Kayishema and Ruzindana ICTR-95-1-T, Judgment and Sentence, Trial Chamber II, 21 May 1999 at para 189. 7 See Rules 21, 129A and 130 ICRC Study on Customary International Humanitarian Law (Henckaerts and Doswald-Beck/ICRC, Customary International Humanitarian Law, Volume I: Rules and Volume II: Practice (2005)); and, for example, Dinstein, The International Law of Belligerent Occupation (2009) at 34–5; Gasser and Dörmann, ‘Protection of the Civilian Population’ in Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edn (2013) at 267; Roberts, ‘What is a Military Occupation? (1984) 55 British Yearbook of International Law 249 at 292–3. For a different view, see Sivakumaran, supra n 3 at 529–30; Benvenisti, The International Law of Occupation (2012) at 61. 8 Article 42 Regulations Concerning the Laws and Customs of War on Land (1907 Hague Regulations), Annex to Convention (IV) Respecting the Law and Customs of War on Land, 18 October 1907. 9 For example, more recently Murray, supra n 1; Fortin, supra n 1; Rodenhäuser, Organising Rebellion: Non-state Armed Gourps under International Humanitarian law, Human Rights Law and International Criminal Law (2018) at 121–215; Giacca, Economic, Social and Cultural Rights in Armed Conflict (2014) at 269–70; Mastorodimos, Armed Non-State Actors in International Humanitarian and Human Rights Law (2016) at 182–3. 10 For example, see the overview by Fortin, supra n 1 at 3–5. 11 UN Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, Report on Armed Non-State Actors: The Protection of the Right to Life, 5 June 2018, A/HRC/38/44 at para 8. 12 Mégret, ‘Detention by Non-State Armed Groups in Non-International Armed Conflict: International Humanitarian Law, International Human Rights Law and the Question of Right Authority’ in Heffes, Kotlik and Ventura (eds), International Humanitarian Law and Non-State Actors: Debates, Law and Practice (2020) at 183. 13 Ibid. at 184. 14 Note that unless otherwise indicated, when reference is made to jurisdiction, this means human rights jurisdiction, as opposed to jurisdiction under international law or judicial jurisdiction. See also Section 3.B below. 15 Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (2012) 25 Leiden Journal of International Law 857 at 865. 16 See infra n 67. 17 Due to space constraints, the analysis primarily relies on ECtHR jurisprudence and documents of the UN Human Rights Committee (HRCttee) and the UN Committee on Economic, Social and Cultural Rights (CESCR). 18 Besson, ‘The Bearers of Human Rights Duties and Responsiblities for Human Rights: A Quiet (R)evolution’ (2015) 32 Social Philosophy and Policy 244. 19 This distinguishes the entities the article is concerned with from other collective non-state actors that international human rights law relates to, for example, international governmental organisations, multinational corporations and non-governmental organisations. The article also excludes UN territorial administrations and administrations set up by an occupying state, as well as pro-government militias or paramilitary groups that act on behalf of, or are at least tolerated by, a government. 20 Draft Articles on Responsibilities of States for Internationally Wrongful Acts (ARSIWA), annex to General Assembly Resolution 56/83, 12 December 2001, and corrected by document A/56/49 (Vol. I)/Corr.4. 21 But it could include entities that receive support from a state or share a state’s objective, as long as their acts are not attributable to that state. It can also include entities that later become new states or the new government of an existing state as foreseen under Article 10 ARSIWA. 22 In practice, it is likely that most ANSAs are engaged in at least some activities that are potentially attributable to states. 23 This would include non-state armed groups that do not exercise control over territory but are sufficiently organised to comply with Common Article 3 to the 1949 Geneva Conventions I-IV. On international humanitarian law requirements, see Sivakumaran supra n 3 at 164–211; Rodenhäuser, supra n 9 at 39–110. 24 On the notion of de facto regimes, see Schoiswohl, ‘De Facto Regimes and Human Rights Obligations: The Twilight Zone of Public International Law’ (2001) 6 Austrian Review of International and European Law 45. 25 Fortin, supra n 1 at 35–68; Murray, supra n 1 at 10; Rodenhäuser, supra n 9 at 144–5; Ryngaert and Noortmann, ‘New Actors in Global Governance and International Human Rights Law’ (2010) 4 Human Rights and International Legal Discourse 5 at 13; Report of the UN Special Rapporteur on Extrajudicial Executions, supra n 11 at para 7. 26 First and foremost, by Article 4(1) of the Optional Protocol on the Involvement of Children in Armed Conflict to the Convention on the Rights of the Child 2002, 2173 UNTS 222. For example, Clapham, Human Rights Obligations of Non-State Actors (2006) at 75; Fortin, ibid. at 226–38; Murray, ibid. at 160–62; Rodenhäuser, ibid. at 132. 27 Preambles of ICCPR (infra n 37) and the ICESCR (infra n 39); and of the Universal Declaration on Human Rights (UDHR), GA Res 217 (A) III. See also Articles 5(1) ICCPR and ICESCR and Article 30 UDHR. 28 Preamble UDHR. For example, Fortin, supra n 1 at 210–17; Mastorodimos, supra n 9 at 148–59 (though ultimately rejecting that these preambles and provisions are a source of human rights obligations of ANSAs). 29 Mastorodimos, ibid. at 162–5; Fortin, supra n 1 at 274–6; Murray, supra n 1 at 134 and 167; Rudolf, ‘Non-State Actors in Areas of Limited Statehood as Addressees of Public International Law Norms on Governance’ (2010) 4 Human Rights & International Legal Discourse 127 at 139–40. 30 Murray, ibid. at 164–8. Similar arguments are entertained by Rodenhäuser, supra n 9 at 132–5 and 170–6, though not fully endorsed. 31 Murray, ibid. at 83–9 and 134; Fortin, supra n 1 at 323–58; Mastorodimos, supra n 9 at 168–82. Others are more careful, for example, Rodenhäuser, ibid. at 153 and 176–80; Henckaerts and Wiesener, ‘Human Rights Obligations of Non-State Armed Groups: A Possible Contribution from Customary International Law’ in Kolb and Gaggioli (eds), Research Handbook on Human Rights and Humanitarian Law (2013) 146 at 161. 32 For example Murray, ibid. at 120–54; Fortin, ibid. at 242–5 33 See supra n 10, and the overview given in Geneva Academy, Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council, December 2016; Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), Armed Non-state Actors and International Human Rights Law: An Analysis of the Practice of the UN Security Council and the UN General Assembly, June 2017; Constantinides, ‘Human Rights Obligations and Accountability of Armed Opposition Groups: The Practice of the UN Security Council’ (2010) 4 Human Rights & International Legal Discourse 89. 34 Fortin, supra n 1 at 157–60 and 372–3, seems to suggest that human rights law does not contain a ‘threshold test’ that allows it to determine when specific duty-bearers (usually states) obtain obligations towards specific individuals: see Murray, supra n 1 and Rodenhäuser, supra n 9, do not directly engage with the jurisdiction question. 35 See infra nn 39–40. 36 1950, ETS 5, 213 UNTS 221. 37 1966, 999 UNTS 171. 38 1989, 1577 UNTS 3. 39 1966, 933 UNTS 3. For example, CESCR, General Comment No 4: The right to adequate housing (art. 11(1)), 1 January 1992 at para 13; General Comment No 15: The right to water (arts. 11 and 12), 20 January 2003 at para 53; General Comment No 19: The right to social security (art. 9), 4 February 2008 at para 75; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, ICJ Reports 2004, 136 at para 112. 40 A jurisdiction clause was included in Article 2 of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights 2008 (OP-ICESCR), A/RES/63/117. 41 On the notion of threshold criterion, see also Lawson, ‘Life After Bankovic: On the Extraterritorial Application of the European Convention on Human Rights’ in Coomans and Kamminga (eds), Extraterritorial Application of Human Rights Treaties (2004) at 83. 42 Besson, supra n 15 at 865. 43 There are exceptions, for example, Duttwiler, ‘Authority, Control and Jurisdiction in the Extraterritorial Application of the European Convention on Human Rights’ (2012) 30 Netherlands Quarterly of Human Rights 137. 44 For example, Milanovic, Extraterritorial Application of Human Rights Treaties (2011) at 39–41 and 136; Tan, ‘Filling the Lacuna: De Facto Regimes and Effective Power in International Human Rights Law’ (2019) 51 International Law and Politics 435 at 463 et seq. (note, however, that Tan develops his standard of ‘effective control’ based on a merger of human rights law and the law of occupation). 45 Besson, supra n 15 at 872. See also HRCttee, General Comment No 31: Nature of the general legal obligations imposed on States Parties to the Covenant, 26 May 2004 at para 10; Hampson, ‘The Scope of Extra-territorial Applicability of International Human Rights Law’ in Gilbert, Hampson and Sandoval (eds), The Delivery of Human Rights: Essays in Honour of Sir Nigel Rodley (2011) at 168. 46 Duttwiler, supra n 43 at 160 (emphasis in original). 47 Besson, supra n 15 at 872. 48 Loizidou v Turkey Application No 15318/89, Commission Report, 8 July 1993 at para 94; Loizidou v Turkey Application No 15318/89, Prelimnary Objections, 23 March 1995 at paras 58 and 62. 49 Al-Saadoon and Mufdhi v United Kingdom Application No 61498/08, Admissibility, 30 June 2009 at para 88. 50 Medvedyev and Others v France Application No 3394/03, Merits and Just Satisfaction, 29 March 2010 at para 67. 51 Banković and Others v Belgium and Others Application No 52207/99, Admissibility, 12 December 2001 at para 75. Confirming and justifying this, see Duttwiler, supra n 43 at 153–4. 52 Medvedyev and Others v France, supra n 50 at para 64. 53 Ibid. at para 64. Much of the literature, however, criticises the ECtHR for this ‘narrow’ approach that allegedly undermines the effective protection of human rights: see, for example, Milanovic, supra n 44 at 219–22; den Heijer and Lawson, ‘Extraterritorial Human Rights and the Concept of Jurisdiction’ in Langford (ed.), Global Justice, State Duties (2013) at 180–2. 54 For example, Al-Skeini v United Kingdom Application No 55721/07, Merits and Just Satisfaction, 7 July 2011 at para 137; Öcalan v Turkey Application No 46221/99, Merits and Just Satisfaction, 12 May 2005 at para 91; Al-Saadoon and Mufdhi v United Kingdom, supra n 49 at para 87. 55 Al-Skeini v United Kingdom, ibid. at para 135; Banković v Belgium, supra n 51 at para 71; Chiragov v Azerbaijan Application No 13216/05, Merits, 16 June 2015 at para 168. The HRCttee also refers to ‘within the power … of … [a] State Party’ in General Comment 31, supra n 45 at para 10. 56 Besson, supra n 15 at 872–3 and 864–5. 57 That is, exercising human rights jurisdiction implies an exercise of state authority based on domestic law (or at least a claim that the authority is based on domestic law), including when exercised extraterritorially. See also Besson, ibid. at 868. This does not undermine the fact that the exercise of states’ (extraterritorial) human rights jurisdiction can be legal or illegal under international law (see Section 3.B below). 58 See also Duttwiler, supra n 43 at 156–9; Hampson, supra n 45 at 166–8. 59 See, for example, preamble to the ECHR; and the references listed infra n 67. 60 Article 14 ECHR and Article 1 of the 2000 Protocol No 12 to the ECHR, ETS No 177; Articles 2(1), 14(1) and 26 ICCPR; Articles 2(2) and 3 ICESCR; and HRCtte, General Comment No 18: Non-discrimination, 10 November 1989; CESCR, General Comment No 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2), 2 July 2009. 61 This is not the place to rehearse the full justification of the inseparability of human rights, equality and democracy underpinning the relevant human rights treaty provisions. But see Beetham, Democracy and Human Rights (1999) at 91–108, on the intrinsic and instrumental relationship between human rights and democracy; Besson, ‘Human Rights and Democracy in a Global Context: Decoupling and Recoupling’ (2011) 4 Ethics and Global Politics 19; Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy, 2nd edn (1996) at 71–87; Steiner, ‘Two Sides of the Same Coin: Democracy and International Human Rights’ (2008) 41 Israel Law Review 445. 62 See infra nn 66 and 68. It is this attentiveness to local context that helps protect human rights law against accusations of cultural imperialism. See Nickel, Making Sense of Human Rights, 2nd edn (2015) at 175–6. 63 As foreseen in the limitation clauses of international human rights treaties, for example, Articles 8(2) to 11(2) ECHR; Articles 12(3), 18(2), 19(3), 21 and 22(2) ICCPR; and Articles 4 and 8(1)(a) and (c) ICESCR. 64 Whilst international human rights law does not pose an obligation on states to incorporate these treaties into domestic law or otherwise give them direct effect (see, for example, McCann and Others v United Kingdom Application No 18984/91, Merits and Just Satisfaction, 27 September 1995 at para 153; HRCttee, General Comment No 31, supra n 45 at para 13; CESCR, General Comment No 9: The domestic application of the Covenant, 3 December 1998 at paras 5 and 8), it requires them to adopt all necessary measures to secure these rights. This includes (domestic) legislative measures, as indicated in Article 52 ECHR, Article 2(2) ICCPR and Article 2(1) ICESCR. 65 As specified, for example, in CESCR, General Comment No 3: The nature of States parties’ obligations (art.2, para.1) 14 December 1990 at paras 6 and 7. 66 For example, Articles 2, 5(1), (2) and (4), 6(1), 8(2)–11(2) ECHR; Articles 6(1), 8(c)(i) and (ii), 9(1), 12(1) and (3), 13, 14(1), 15 (concerning criminal law), 17(1) and (2), 18(3), 19(3), 20, 21 and 22(2) ICCPR; Articles 4 and 8(1)(a) and (c) ICESCR. 67 Articles 8(2) to 11(2) ECHR; Articles 14(1), 21 and 22(2) ICCPR; Articles 4 and 8(1)(a) and (c) ICESCR. 68 Through the adoption of domestic laws, states concretise both limitations to rights at the domestic level and measures taken to discharge positive human rights obligations. In both cases, most of the respective laws shall be adopted with the (at least indirect) involvement of an elected legislature (in line also with, for example, Article 3 Protocal I to the ECHR and Article 25 ICCPR). See Harris et al., Harris, O’Boyle and Warbrick: The Law of the European Convention on Human Rights, 4th edn (2018) at 20; Lavrysen, ‘Protection by the Law: The Positive Obligation to Develop a Legal Framework to Adequately Protect ECHR Rights’ in Brems and Haeck (eds), Human Rights and Civil Liberties in the 21st Century (2014) 69; Müller, ‘Obligations to “Secure” the Rights of the Convention in an “Effective Political Democracy”: How Should Parliaments and Domestic Courts Interact?’ in Saul, Follesdal and Ulfstein (eds), The International Human Rights Judiciary and National Parliaments: Europe and Beyond (2017) 167. 69 See also the ECtHR’s references to the separation of powers doctrine: Van de Hurk v The Netherlands Application No 16034/90, Merits and Just Satisfaction, 19 April 1994 at paras 44–55; Animal Defenders International v United Kingdom Application No 48876/08, Merits and Just Satisfaction, 22 April 2013. 70 For example, Bjørge, ‘National Supreme Courts and the Development of ECHR Rights’ (2011) 9 International Journal of Constitutional Law 5; Müller, ‘Domestic Authorities’ Obligations to Co-develop the Rights of the European Convention on Human Rights’ (2016) 20 The International Journal of Human Rights 1058; on the ‘living’ character of the ICCPR, see HRCttee, Judge v Canada (829/1998), CCPR/C/78/D/829/1998 at para 10.3. 71 For example, Article 25 ICCPR, Article 21 UDHR, Article 15 CRC, Articles 4 (3), 29, 33 (3) CRPD; Article 3 Protocol No 1 to the ECHR; HRCttee, General Comment No 25: The right to participate in public affairs, voting rights and the right of equal access to public services (art. 15), 27 August 1996 at paras 5–6. See also Article 23 of the American Convention on Human Rights 1969, 1144 UNTS 123; Article 13 of the African Charter on Human and Peoples Rights 1981, 1520 UNTS 217. 72 For example, CESCR, General Comment No 14: The right to the highest attainable standard of health (art. 12), 11 August 2000 at para 11; General Comment 18: The right to work (art. 6), 6 February 2006 at para 42; HRCttee, General Comment No 25, supra n 71 at paras 6 and 8, on equal participation other than through elections. The participatory element is also emphasised by the Committee on the Rights of the Child, General Comment No 19: On public budgeting for the realization of children’s rights (art. 4), 20 July 2016 at para 33; and by UN special procedures mandate-holders: see, for example, Report of the UN Special Rapporteur on Human Rights and Extreme Poverty, A/64/279, 11 August 2009 at paras 71–72; Report of the Independent Expert on the Promotion of a Democratic and Equitable International Order, A/HRC/30/44,14 July 2015 at paras 36–37. 73 CESCR, General Comment No 19, supra n 39 at para 63. See also World Conference on Human Rights, Vienna Declaration and Programme of Action, A/CONF.175/23, 12 July 1993, part I at para 8. 74 CESCR, General Comment No 3, supra n 65 at para 8 (my emphasis); HRCttee, General Comment No 25, supra n 71 at para 1. This does not imply that only democratic states can ratify human rights treaties. Rather, states parties are under an obligation to (progressively) democratise, that is, to set up institutions that enable them to successively secure the equal rights of the people under their jurisdiction. 75 For example, Ždanoka v Latvia Application No 58278/00, Merits and Just Satisfaction, 16 March 2006 at para 98; Refah Partisi (the Welfare Party) and Others v Turkey Applications Nos 41340/98 et al., Merits, 13 February 2003, at para 86. More recently, Navalnyy v Russia Application No 29580/12, Merits and Just Satisfaction, 15 November 2018, at para 175. Similarly, Inter-American Court of Human Rights, Yatama v Nicaragua Series C 127 (2005), Preliminary Objections, Merits, Reparations and Costs at paras 195–201, referring inter alia to the Inter-American Democratic Charter, adopted by the General Assembly of the Organization of American States, AG/RES 1838 (XXXI-O/01), 11 September 2001. 76 For example, Report of the UN Special Rapporteur on Human Rights and Extreme Poverty, A/HRC/17/34, 17 March 2011, at para 90. 77 Report of the UN Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation, A/HRC/15/31, 29 June 2010, at para 4. 78 For more on the institutional model of human rights on which these arguments are based, see Besson, supra n 18 at 251–3 with further references. See also Nickel, supra n 62 at 68; Shue, supra n 61 at 17–18, 59 and 62–4. 79 For example, Cassese, Self-Determination of Peoples: A Legal Reappraisal (1995) at 59–60, 102, 327 and 364; Raič, Statehood and the Law of Self-Determination (2002) at 244–7; McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1996) 43 International and Comparative Law Quarterly 587 at 866–8; Mégret, ‘The Right to Self-Determination: Earned, Not Inherent’ in Tesón (ed.), The Theory of Self-Determination (2018) 45 at 58. 80 As envisaged in the 1970 Declaration on Friendly Relations (infra n 83); Raič, ibid. at 247–2; Mégret, supra n 79 at 45–69; McCorquodale, ibid. at 867–8. 81 Article 1 common to the ICCPR and ICESCR. 82 The exercise of the right to self-determination by colonised peoples was limited to the three ways as set out in Princple VI in UNGA Res 1541 (XV), 15 December 1960; Cassese, supra n 79 at 67–89; Raič, supra n 79 at 199–220; McCorquodale, supra n 79 at 859–60. 83 Vienna Declaration and Programme of Action, supra n 73 at para 2. See also Declaration on Principles of International Law concerning Friendly Relations and Cooperation with the Charter of the United Nations, GA Res 26/25(XXV), 24 October 1970; HRCttee, General Comment No 12: Article 1 (Right to self-determination), 12 April 1984, at para 6. 84 Outside the colonial context, arguably only in very exceptional circumstances can the gross denial of ‘internal’ self-determination mean that a group of people can demand the exercise of ‘external’ self-determination, that is, secession and the setting up of a new state or unification with another state. See the discussion on ‘remedial’ secession as a last resort mode of the exercise self-determination by Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (2004) at Chapter 8; Mégret, supra n 79 at 52–3. 85 Reinforced by independent non-discrimination rights in human rights treaties, for example, Articles 3 and 26 ICCPR. 86 Cassese, supra n 79 at 60; Raič, supra n 79 at 246. 87 Cassese, ibid. at 347; Wheatley, Democracy, Minorities and International Law (2005) at 136; McCorquodale, ibid. at 878; Raič, ibid. at 274. 88 For different ways in which (internal) self-determination of various groups and minorities can be exercised within a state implementing the requirement of individual political equality and representativeness in plural societies, see Weller and Wolff, ‘Self-determination and Autonomy’ in Weller and Wolff (eds), Autonomy, Self-Determination and Conflict Resolution: Innovative Approaches to Institutional Design in Divided Societies (2005) 1. More broadly on mechanisms regularly relied on to prevent a ‘tyranny of the majority’ in democratic states: see Wheatly, supra n 87 at 144–7. 89 See also Besson, supra n 15 at 864–5; and Raič, supra n 79 at 279. 90 The ECtHR has frequently noted that jurisdiction is ‘primarily’ or ‘essentially’ territorial, that is, exercised on the official territory of a state, for example, Assanidze v Georgia Application No 71503/01, Merits and Just Satisfaction, 8 April 2004, at para 137; Banković v Belgium, supra n 51 at paras 59–61. See also ICJ, Wall Opinion, supra n 39 at para 112. 91 For example, ECtHR, Assanidze v Georgia, supra n 90 at para 139; Al-Skeini v United Kingdom, supra n 54 at para 131; ICJ, Wall Opinion, supra n 39 at para 109; HRCtte, General Comment No 31, supra n 45 at para 10; Committee on the Rights of the Child, General Comment 6: Treatment of unaccompanied and separated children outside their country of origin, 1 September 2005 at para 78; Besson, supra n 15 at 876. On the related idea of ‘presumptive legitimacy’ of statehood, see also Mégret, supra n 12 at 180. 92 This predominant position is itself often justified by the integration of human rights and sovereignty, for example, in the notion of ‘popular sovereignty’. 93 For example, Catan and Others v Moldova and Russia Applications Nos 43,370/04 et al., Merits and Just Satisfaction, 19 October 2012 at para 110. 94 Shaw, International Law, 8th edn (2017) at 483. On jursidiction in international law, see, for example, Mills, ‘Rethinking Jurisdiction in International Law’ (2014) 84 British Yearbook of International Law 187; Ryngaert, Jurisdiction in International Law, 2nd edn (2015). 95 For example, through embassies, on ships and airplanes or by invitation. This means that sometimes (but not always) extraterritorial (human rights) jurisdiction exercised by a state is reinforced by jurisdiction under international law. However, extraterritorial (human rights) jurisdiction can also be exercised illegally under international law. This shows that (human rights) jurisdiction and international law jurisdiction are ‘not completely distinct, … nor are they entirely coextensive’: see Besson, supra n 15 at 868–9. 96 See supra nn 56–58. 97 Besson, supra n 15 at 868–9. See, however, Raible, ‘Title to Territory and Jurisdiction in International Human Rights Law: Three Models for a Fraught Relationship’ (2018) 31 Leiden Journal of International Law 315, who seems to reject (at 329-31) a productive overlap between human rights jurisdiction and jurisdiction under international law. This also leads her to reject the presumption of states’ human rights jurisdiction on their own territories on which ECHR jurisprudence is based. 98 For example, Ilaşcu and Others v Moldova and Russia Applications Nos 48787/99 et al., Merits and Just Satisfaction, 8 July 2004, at paras 312 and 333; Catan and Others v Moldova and Russia, supra n 93 at para 109; Sargsyan v Azerbaijan Application No 40167/06, Merits, 16 June 2016, at para 131. 99 Ilaşcu and Others v Moldova and Russia, ibid. at paras 313 and 333–334; Catan and Others v Moldova and Russia, supra n 93 at paras 339–346; Sargsyan v Azerbaijan, ibid. at para 131. 100 Al-Skeini v United Kingdom, supra n 54 at paras 138–139; and concerning socio-economic rights, principle 18 Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights, 28 September 2011; Besson, supra n 15 at 874–5; ICJ, Wall Opinion, supra n 39 at paras 112–113. See also Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of Human Rights Treaties (2009) at 315. 101 Al-Skeini v United Kingdom, ibid. at paras 133–137; and in relation to socio-economic rights, principle 18 Maastricht Principles, ibid.; Besson, supra n 15 at 875–6. 102 Al-Skeini v United Kingdom, ibid. at para 134; Banknovic v Belgium, ibid. at para 73; X. v United Kingdom Application No 7547/76, Commission Report, 15 December 1977 at 73; M. v Denmark Application No 17392/90, Commission Report, 14 October 1992 at 193. 103 Al-Skeini v United Kingdom, ibid. at para 135; X. and Y. v Switzerland Appilcation No 7289/75, Commission Report, 14 July 1977 at 57. See also HRCttee, Lopez Burgos v Uruguay (52/1979), Views, CCPR/C/OP/1 at para 12.3. 104 For example, Loizidou v Turkey, Preliminary Objections, ibid. at para 62; Banković v Belgium, supra n 51 at para 70; Ilaşcu and Others v Russia and Moldova, ibid. at paras 314–316; Al-Skeini v United Kingdom, ibid. at para 138; Chiragov v Armenia, supra n 55 at para 186. 105 For example, Catan v Moldova and Russia, supra n 93 at para 115; Jaloud v The Netherlands Application No 47708/08, Merits and Just Satisfaction, 20 November 2014, at para 154. 106 For example, Chiragov v Armenia, supra n 55 at para 201; Jaloud v The Netherlands, ibid. at paras 140–155. 107 Loizidou v Turkey Application No 15318/89, Merits, 18 December 1996, at paras 16 and 65; Ilaşcu and Others v Moldova and Russia, supra n 98 at para 387; Al-Skeini v United Kingdom, supra n 54 at para 139. See also Tan, supra n 44 at 470–1; Hampson, supra n 45 at 169. 108 Loizidou v Turkey, supra n 107 at paras 16 and 56, noting the presence of more than 30,000 Turkish military personnel stationed in northern Cyprus; Ilaşcu and Others v Moldova and Russia, ibid. at paras 131, 380 and 387, referring to the fact that, although the number of troops had fallen significantly since 1992, the Russian Army was still stationed in Transdniestria on official Moldovan territory with around 2200 troops in 2002 (confirmed in Catan and Others v Molodova and Russia, supra n 93 at para 117); and Chigarov v Armenia, supra n 55 at para 173, where the ECtHR noted (at para 180) that it could not conclusively establish the composition of the armed forces that were present in the Nagorno-Karabakh region, but still concluded that Armenian military presence and support ‘has been—and continues to be—decisive for the conquest of and continued control over the territories in issue’. 109 Loizidou v Turkey, ibid. at paras 16, 17 and 56. 110 Ilaşcu and Others v Moldova and Russia, ibid. at paras 131, 380 and 389; Catan and Others v Moldova and Russia, ibid. at paras 117–119; Mozer v Moldova and Russia Application No 11138/10, Merits and Just Satisfaction, 23 February 2016, at paras 103 and 105. 111 Chiragov v Armenia, supra n 55 at paras 175, 178 and 180. 112 Ibid. at paras 173 and 176–180. 113 See, for example, HRCttee, Concluding observations regarding Israel, 18 August 1998, CCPR/C/79/Add.93 at paras 10 and 13 (referring to the presence of Israeli ‘security forces’ in the Occupied Palestinian Territories and in parts of occupied Lebanon); HRCttee, Concluding observations regarding Italy, 24 April 2006, CCPR/C/ITA/CO/5 at para 3; CESCR, Concluding observations regarding Israel, 4 December 1998, E/C.12/1/Add.27 at para 8; CESCR, Concluding observations regarding Israel, 23 May 2003, E/C.12/1/Add.90 at para 31. 114 Ilaşcu and Others v Moldova and Russia, supra n 98 at para 392. 115 See supra n 108. 116 See also Tan, supra n 44 at 472–3. 117 Jaloud v The Netherlands, supra n 105 at para 152. 118 Hassan v United Kingdom Application No 29750/09, Merits, 16 September 2014, at paras 76 and 80. 119 Al-Saadoon and Mufdhi v United Kingdom, supra n 49, at para 88; Al-Jedda v United Kingdom Application No 27021/08, Merits and Just Satisfaction, 7 July 2011, at para 85. See also Medvedyev and Others v France, supra n 50 at paras 66–67, referring to French guards’ ‘full and exclusive control’ over a vessel and its crew, sailing under Cambodian flag; similarly, HRCttee, Concluding observations regarding the United Kingdom, 30 July 2008, CCPR/C/GBR/CO/6 at para 14. 120 Al-Skeini v United Kingdom, supra n 54 at para 149; Hassan v United Kingdom, supra n 118 at para 78; HRCttee, Concluding observations concerning the United States of America, 18 December 2006, CCPR/C/USA/CO/3/Rev.1 at para 10, implicating the presence of military personnel on foreign territory as evidence; Duttwiler, supra n 43 at 159–61. 121 Öcalan v Turkey, supra n 54 at para 91; Hassan v United Kingdom, ibid. at para 76; HRCttee, Lopez Burgos v Uruguay, supra n 103 at paras 12.1 and 12.2; Hampson, supra n 44 at 169. 122 Ilaşcu v Moldova and Russia, supra n 98 at para 390. 123 Chiragov v Armenia, supra n 55 at para 183. 124 Ilaşcu v Moldova and Russia, supra n 98 at paras 156 and 390; Catan v Moldova and Russia, supra n 93 at paras 39–40 and 120; Mozer v Moldova and Russia, supra n 110 at para 103. 125 Ilaşcu v Modova and Russia, ibid. at paras 151–152 and 390; Catan v Moldova and Russia, ibid. at paras 39 and 120; Mozer v Moldova and Russia, ibid. at para 103. 126 Catan v Moldova and Russia, ibid. at paras 41 and 120; Mozer v Moldova and Russia, ibid. at para 103. 127 Ilaşcu v Moldova and Russia, supra n 98 at paras 46, 75, 137–138 and 382; Chiragov v Armenia, supra n 55 at para 181. 128 Chiragov v Armenia, ibid. at paras 78 and 181–182. 129 Ibid. at paras 77 and 182; Zalyan and Others v Armenia Appplication No 36894/04, Merits and Just Satisfaction, 17 March 2016, at para 76. 130 For example, HRCttee, Concluding observations regarding Israel, 3 September 2010, CCPR/C/ISR/CO/3 at paras 8–10, 14–18, 20 and 22; CESCR, Concluding observations regarding Israel, 16 December 2011, E/C.12/ISR/CO/3 at paras 12, 19, 24, 26, 28, 29, 32, 35 and 36. 131 Cf. the following examples: X. and Y. v Switzerland, supra n 103 at 57, where Switzerland exercised some executive functions on the territory of Liechtenstein ‘exclusively in conformity with Swiss law’. By contrast, in Drozd and Janousek v France and Spain Application No 12747/87, Merits and Just Satisfaction, 26 June 1992, a case concerning historically grown peculiarities of the Andorran legal system, the Court observed (at para 96) that when sitting on Andorran courts, neither French nor Spanish judges acted in their capacity as French/Spanish judges, and applied neither French nor Spanish law, but ‘exercise[d] their functions in an autonomous manner’. Therefore, neither France nor Spain were found to exercise extraterritorial jurisdiction in Andorra. 132 Chiragov v Armenia, supra n 55 at para 182. 133 Al-Skeini v United Kingdom, supra n 54 at paras 21 and 145–148; Jaloud v The Netherlands, supra n 105 at paras 93, 144–145 and 152; Al-Jedda v United Kingdom, supra n 119 at paras 78–83. 134 Jaloud v The Netherlands, ibid. at para 146; Hassan v United Kingdom, supra n 118 at para 78. 135 Pisari v Moldova and Russia Application No 42139/12, Merits and Just Satisfaction, 21 April 2015, at paras 30–31 and 33; X. and Y. v Switzerland, supra n 103 at para 2. 136 The observation that extraterritorial (human rights) jurisdiction as normative control can be based on international law does not necessarily undermine the observations made above (Section 3.B) that (human rights) jurisdiction is always jurisdiction based on domestic law. This is due to the fact that international law can often become part of the domestic law of a state that acts extraterritorially. 137 Reinforced by the Court’s references to the exercise of ‘authority’: see supra nn 54 and 55. 138 Al-Saadoon and Mufdhi v United Kingdom, supra n 49 at para 87. 139 See also Duttwiler, supra n 43 at 156–9. 140 For example, Cyprus v Turkey Application No 25781/94, Commission Decision, 28 June 1996 at para 35, where Turkey observed that ‘the “TRNC” is a democratic and constitutional state whose Constitution was accepted by a referendum. Following a process of political and administrative evolution, the “TRNC” was established by the Turkish Cypriot people in pursuance of their right to self-determination and thus was able to make valid law’; and Chiragov v Armenia, supra n 55 at para 72, the Armenian president indicating that Armenian support for the ‘NKR’ aims to protect the right to self-determination of ‘NKR’-people. 141 Cyprus v Turkey, ibid.; and Chiragou v Armenia, ibid. On some of the alleged reasons for the ECtHR’s reluctance, see Section 5 below. 142 See supra nn 64, 66 and 68. 143 See supra nn 59, 67–68 and 71–75. 144 Note that this article only focuses on the question of whether human rights law could bind ANSAs when they exercise de facto jurisdiction. It does not engage directly in a discussion about the context dependent scope of their potential obligations. In accordance with ECtHR and UN treaty body jurisprudence on the scope of states’ ‘negative’ and, in particular, ‘positive’ obligations, this scope inter alia depends on an additional level of control that goes beyond the threshold of control or power to be exerted for the purpose of establishing jurisdiction, and on the availability of resources. See, for example, the ECtHR test ‘knew or ought to have known’ of a risk to the enjoyment of a Convention right at the relevant time when establishing the existence and scope of ‘positive’ obligations under the ECHR in Osman v United Kingdom Application No 23452/94, Merits and Just Satisfaction, 28 October 1998 at para 116; and Öneryildiz v Turkey Application No 48939/99, Merits and Just Satisfaction, 30 November 2004 at para 101. See also Lavrysen, supra n 68 at 92 et seq. 145 The ‘empirical’ analysis concentrates on some strong ANSAs that are likely to be in control of territory. Space constraints preclude a more extensive analysis. 146 See above Section 3.B. For similar observations, albeit not directly concerning quasi-jurisdiction of ANSAs, see Mégret, supra n 12 at 182–3. 147 See above Section 3.B(iii). See also Sivakumaran, ‘Courts of Armed Opposition Groups’ (2009) 7 Journal of International Criminal Justice 489 at 509. 148 Indeed, the only situation in which it would be remotely thinkable that ANSAs exercise ‘personal’ quasi-jurisdiction and thus obtain human rights obligations seems to be when they detain persons in territories that do not fall under their ‘spatial’ quasi-jurisdiction, but where they nonetheless exercise ‘spatial’ quasi-jurisdiction on some territory that allows them to adopt ‘laws’ (in line with material and procedural requirements under human rights law) that they apply when exercising ‘personal’ quasi-jurisdiction outside the territory under their ‘spatial’ quasi-jurisdiction (that is, ‘quasi-extraterritorially’). (Compare states applying their (democratic) domestic law when exercising extraterritorial ‘personal’ jurisdiction, and thus complying with the normative element of jurisdiction). It is submitted that in such situations, the application of international humanitarian law and its obligations to treat detainees humanely is the better legal framework to ensure humane treatment of individuals affected by ANSAs, not directly ‘authorising’ ANSAs to detain, and/or limiting them to only detain persons who directly participate in hostilities (including members of state security forces), potentially as ‘quasi-POWs’. 149 Supported also by the level of intensity of hostilities that will trigger the application of international humanitarian law of non-international armed conflicts. For details, see Rodenhäuser, supra n 9 at 39, 51 and 92–96. 150 Mampilly, Rebel Rulers—Insurgent Governance and Civilian Life during War (2011) at 94. 151 Hussein, ‘Somaliland’s Military is a Shadow of the Past’, Somalia Report, 13 August 2011, available at: piracyreport.com/index.php/post/1299/Somalilands_Military_is_a_Shadow_of_the_Past_ [last accessed 4 April 2020] on the strength of the Somaliland army; Kaplan, ‘The Remarkable Story of Somaliland’ (2008) 19(3) Journal of Democracy 143 at 149. 152 Ó Beacháin et al., ‘The Secret Lives of Unrecognised States: Internal Dynamics, External Relations, and Counter-Recognition Strategies’ (2016) 27 Small Wars & Insurgencies 440 at 443. However, these entities often receive military support from their ‘patron states’. 153 Examples include the LTTE, see Mampilly, supra n 150 at 116; Stokke, ‘Building the Tamil Eelam State: Emerging State Institutions and Forms of Governance in LTTE-Controlled Areas of Sri Lanka’ (2006) 27(6) Third World Quarterly 1021 at 1028; the ‘Democratic Self-Administration of Rojava’ (northern Syria), see Geneva Call, Positive Obligations of Armed Non-State Actors and Policy Issues (September 2016) at 14; ISIS, see Salman and Holmes, ‘Islamic State Creates Police Force in Northwest Iraq’, Reuters, 19 September 2014. 154 See also Tan, supra n 44 at 475 et seq. 155 See supra ns 51 and 53. 156 Cf. analysis above at Section 3.B(i). 157 Tan, supra n 44 at 475. 158 UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report on Mission to Sri Lanka, E/CN.4/2006/53/Add.5, 27 March 2006, at para 34. 159 Concerning the LTTE, see Mampilly, supra n 150 at 116–18; and Somaliland, see Pegg and Kolstø, ‘Somaliland: Dynamics of Internal Legitimacy and (Lack of) External Sovereignty’ (2015) 66 Geoforum 193 at 196–7. 160 See the numerous texts analysing the court systems run by non-state armed groups, for example, Sivakumaran, supra n 3 at 549–55; Murray, supra n 9 at 206–7. Concerning the LTTE, the SPLM/A and the RCD-Goma, all attempting to set up ‘ministries of justice’ and functioning (primarily civilian) judiciaries, see Mampilly, supra n 150 at 116–19, 155–8 and 201–3 respectively. On the judicial system set up by ‘Democratic Self-Administration of Rojava’, see Geneva Call, Positive Obligations, supra n 153 at 13–15. 161 On the policies and administrative structures that ANSAs have set up to provide and coordinate the provision of humanitarian assistance, see Geneva Call, In Their Words: Perceptions of Armed Non-State Actors on Humanitarian Action (May 2016) at 16–19. 162 For example, Geneva Call, In Their Words: Armed Non-State Actors Share Their Policies and Practice with regards to Education in Armed Conflict, November 2017. Concerning the education related activities of the LTTE, the SPLM/A and the RCD-Goma, see Mampilly, supra n 150 at 120–3, 158–63 and 203–04 respectively; Ó Beacháin et al., supra n 151 at 444–5, indicating that the RoA, the RoSO, the NKR and the MRT run comprehensive education systems from primary school to university level. 163 Gordon et al., ‘Dynamics of Porvision of Health Services by Non-state Armed Groups’ (CAERUS, 2015) at 16–38; Mampilly, on healthcare-related activities of the LTTE, the SPLM/A and the RCD-Goma, supra n 150 at 119–20, 163–5 and 204–7, respectively, of the EPLF in Eritrea, POLISARIO in Western Sahara, the FARC, LTTE and Hezbollah discussed by Murray, supra n 9 at 258. 164 Many ANSAs in control of territory adopt new laws, reform existing laws and/or apply existing laws unchanged, see Mampilly, supra n 150 at 116–18, 154–8 and 201 on the LTTE, SPLM/A and RCD-Goma; concerning the RoA, the RoSO, the NKR and the MRT, see Ó Beacháin et al., supra n 151, referring to various laws adopted by these entities throughout the Article; Pegg and Kolstø, supra n 159 at 195, on Somaliland’s election law. 165 Concerning Somaliland, see Pegg and Kolstø, supra n 159 at 199–200; the LTTE and the SPLM/A, see Mampilly, supra n 150 at 110, 115 and 149; Geneva Call, Humanitarian Action, supra n 161 at 18. 166 For example, the LTTE administration included a finance, justice, protection (police), economic development, health and education ministries, as well as tax authorities and even a bank of Tamileelam: see Mampilly, supra n 150 at 110–11; the SPLM/A’s Civil Authority of the New Sudan inter alia included a civilian police force, a judicial system and a department of wildlife (at 146); RCD-Goma also set up specific departments for health, education, social affairs, taxation, security and immigration (at 200). See also Caspersen, ‘Degrees of Legitimacy: Ensuring Internal and External Support in the Absence of Recognition’ (2015) 66 Geoforum 184 covering the RoA, the NKR, the MRT, the TRNC and Somaliland. 167 See below at Section 4.D, for more about the democratic characteristics of these institutions. 168 Pegg and Kolstø, supra n 159 at 194. Also infra nn 190–192. 169 For details, see Mampilly, supra n 150 at 191–208. 170 For example, CESCR, General Comment 14, supra n 72 at paras 38–40. 171 See Mampilly, supra n 150 at 112–15 and 119–23; Stokke, supra n 153 at 1030–1; concerning ‘MRT-authorities’ cooperation with Moldovan authorities, see Caspersen, supra n 166 at 187 and 189. 172 See Mampilly, ibid., on the ‘cooperation’ between the SPLM/A and various national and international humanitarian actors (at 150–4) and the RCD-Goma’s (only partly successful) attempts towards this end (at 193–200 and 203–6). 173 For example, by requiring registration, by directing assistances to target certain people or subject matters, through taxation, by entering into agreements/MoUs with aid organisations etc: see Geneva Call, Humanitarian Action, supra n 161 at 16–18; Mampilly, ibid. at 150–4 and 158–65 (concerning the SPLM/A) and at 193–200 (concerning the RCD-Goma); Ó Beacháin et al., supra n 151 at 448 (concerning the RoA). 174 Geneva Call, Humanitarian Action, supra n 161 at 16. 175 See, for example, Caspersen, supra n 166 at 286; Sivakumaran, surpa n 147 at 509–11. Reasons for this reluctance are also discussed at Section 5 below. 176 Reno, ‘Predatory Rebellions and Governance: The National Patriotic Front of Liberia’ in Arjona, Kasfir and Mampilly (eds), Rebel Governance in Civil War (2015) at 265. 177 See the document ‘Peace through Development: Perspectives and Prospects in the Sudan’ adopted in 2000 by the political wing of the SPLM/A: ‘From the perspective of the SPLM, a peaceful resolution of the conflict in Sudan will be achieved through a comprehensive development strategy that depends on a sustainable system of participatory democracy and good governance. On the other hand, participatory democracy and good governance rely on the establishment of a broad-based civil authority, such as CANS.’ 178 Mampilly, supra n 150 at 147. 179 The Constitution of the Sudan People’s Liberation Movement, May 2008, available at: theirwords.org/media/transfer/doc/1_sd_splm_spla_2008_42-3d12760c83c083afb4b1d84fb0e2e5ee.pdf [last accessed 4 April 2020]. 180 Constitution of the Republic of Abkhazia, 26 November 1994, Article 2: ‘Democracy shall be the basis of state authority in the Republic of Abkhazia’, available at: www.mfaabkhazia.net/en/constitution [last accessed 4 April 2020]. 181 Article 1(1) Constitution of the NKR: ‘The Republic of Artsakh is a sovereign, democratic, social State governed by the rule of law’, available at: www.nkr.am/ru/constitution-of-Artsakh [last accessed 4 April 2020]. 182 Article 9(1) Constitution of the Republic of Somaliland, April 2000, provides: ‘The political system of the Republic of Somaliland shall be based on peace, co-operation, democracy and plurality of political parties’, available at: www.somalilandlaw.com [last accessed 4 April 2020]. 183 For additional ‘constitutions’ and ‘political statements’ issued by ANSAs, see the database: theirwords.org maintained by Geneva Call. 184 For example, Berg and Mölder, ‘Who is Entitled to “Earn Sovereignty”? Legitimacy and Regime Support in Abkhazia and Nagorno-Karabakh’ (2012) 18 Nations and Nationalism 527 at 538–42; Caspersen, supra n 166 at 188. 185 Pegg and Kolstø, supra n 159 at 294–7; Kaplan, supra n 151 at 144. 186 See Reno, supra n 176 at 282. 187 Kolstø and Blakkisrud, ‘De facto States and Democracy: The Case of Nagorno-Karabakh’ (2012) 45 Communist and Post-Communist Studies 141 at 149. 188 Ibid. at 141; Ó Beacháin et al., supra n 151 at 445–7. 189 Geneva Call, Positive Obligations, supra n 153 at 13–15. 190 Ó Beacháin, ‘The Dynamics of Electoral Politics in Abkhazia’ (2012) 45 Communist and Post-Communist Studies 165 at 168–71. However, the inclusive character of the Abkhazian democracy is undermined by the fact that only ethnic Abkhaz can stand for presidential election. See also Ó Beacháin et al., supra n 151 at 445–7; Berg and Mölder, supra n 185 at 538. 191 Pegg and Kolstø, supra n 159 at 195–6; Kaplan, supra n 151 at 144 and 147–9. 192 Kaplan, supra n 151 at 144. This is not to say that the ‘democratic system’ set up in Somaliland is without flaws, see ibid. at 149–51; Renders, Consider Somaliland: State-Building with Traditional Leaders and Institutions (2012) at 225–66. 193 Mampilly, supra n 150 at 161–2. 194 Stokke, supra n 153 at 1022–4 and 1035. 195 Ibid. at 1029–31. 196 Mampilly, supra n 150 at 121. 197 Ibid. at 110; Stokke, supra n 153 at 1029–31 198 In line, for example, with Article 13 ECHR and Article 2(3) ICCPR. 199 Sivakumaran, supra n 147 at 491–5 and 506; Murray, supra n 1 at 214–36, often based on international humanitarian law applicable to non-international armed conflicts, such as Article 3 common to the four 1949 Geneva Conventions and Article 6(2) Protocol II Additional to the Geneva Conventions 1977 (APII). 200 See early ECtHR jurisprudence, for example, De Wilde, Ooms and Versyp v Belgium Applications Nos 2832/66, 2835/66 and 2899/66, Merits, 18 June 1971 at para 78. 201 In line with Articles 14(1) ICCPR; Articles 5(1)(a) and 6(1) ECHR. These legal bases should emanate from an ‘elected legislature’, see Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2005) at 319; and ECtHR jurisprudence: Coëme and Others v Belgium Applications Nos 32,492/96 et al., Merits and Just Satisfaction, 18 October 2000 at para 98. 202 Stokke, supra n 153 at 1027–8; Sivakumaran, supra n 147 at 493–5 and at 492–3, concerning the ‘courts’ of the Communist Party of Nepal-Moist (CPN-M). 203 Kaplan, supra n 151 at 150; Pegg and Kolstø, supra n 159 at 195–6. 204 By contrast, it seems that the judiciaries in the NKR and RoA do not always enjoy such a high degree of independence, see, for example, Berg and Mölder, supra n 185 at 541 (note, however, that the authors primarily discuss the populations’ perception of the judiciary and other ‘institutions’ of the NKR and RoA). See also Willms, ‘Courts of Armed Groups: A Tool for Inducing Higher Compliance with International Humanitarian Law?’ in Krieger (ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region (2015) at 175, on the emerging independence of ‘judges’ in SPLM/A-territory in South Sudan before it gained independence. 205 Supra nn 64, 66, 68 and 201. 206 See supra n 164. 207 Article 26(1) Constitution of the Republic of Somaliland. 208 Article 27(4) Constitution of the Republic of Somaliland. 209 Article 27(5) Constitution of the Republic of Somaliland. 210 Articles 23(3) and (4), 30, 31(3) and 32(1) and (2) Constitution of the Republic of Somaliland. 211 Article 31(3) Constitution of the Republic of Somaliland. 212 Article 75 Constitution of the Republic of Somaliland. 213 Constitution of the NKR, supra n 181. See also Article 72 (Principle of Lawfulness in Defining Crimes and Imposing Punishments) and Article 73 (Retroactive Effect of Laws and Other Legal Acts). 214 UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report on Mission to the Philippines, A/HRC/8/3/Add.2, 16 April 2008 at para 32 (including n 44). 215 Al-Skeini v United Kingdom, supra n 54 at para 149 (my emphasis). 216 See supra n 10. 217 For example, Report of the UN Special Rapporteur on Freedom of Religion and Belief, A/HRC/28/66, 29 December 2014, at paras 54–65; Joint Report by four UN Special Rapporteurs on Their Mission to Lebanon and Israel, A/HRC/2/7, 22 December 2014, at para 19. 218 For example, OHCHR, Human Rights Violations Emanating from Israeli Military Attacks and Incursions in the OPT, particularly the recent ones in the Occupied Gaza Strip: Report of the High Commissioner for Human Rights on the Implementation of Human Rights Council Resolution 7/1, A/HRC/8/17, 6 June 2008, at para 9. 219 Joint Report by four UN Special Rapporteurs on Their Mission to Lebanon and Israel, supra n 217 at para 19 (my emphasis). 220 Report of the International Commission on Libya established by UN Human Rights Council resolution S-15/1, A/HRC/17/44, 1 June 2011, at para 72 (my emphasis). 221 Report of the UN Special Rapporteur on Extrajudicial Executions, Mission to Sri Lanka, supra n 158 at para 27. 222 See also the occasional resolutions of the UN Security Council calling on non-state armed groups that exercise ‘de facto authority’ to comply with human rights law: HLS PILAC, supra n 33 at 14; Constantinides, supra n 33 at 102. 223 See also Mégret, supra n 189 at 24, for a similar finding referring to the ‘public character’ of ANSAs and to ANSAs exercising ‘right authority’. 224 See, for example, the analysis of the behaviour of Charles Taylor’s NPFL by Reno, supra n 176 at 269. 225 The implementation of international humanitarian law obligations is independent of (democratic) ‘law making’ functions that are a precondition for the implementation of human rights duties. This is due to international humanitarian law’s focus on humanitarian restraint, that is, its approach to formulate prohibitions and to prescribe certain conduct directly and often in a detailed manner without being concerned about the primal lawfulness of this conduct (for example, limiting non-state armed groups’ use of force without authorising resort to armed force; and describing conditions of humane treatment of detainees without explicitly authorising non-state armed groups to detain). As a consequence, international humanitarian law obligations do not legitimise their bearers and the authority they exercise in the same way as human rights obligations do. 226 Mégret, supra n 12 at 186. 227 See supra nn 64 and 68. 228 In this light, the idea that the exercise of human rights jurisdiction will only pose duties on the entity exercising such jurisdiction, but no rights or privileges (as suggested by Raible, supra n 97 at 320), has to be rejected. 229 For example, Report of the UN Special Rapporteur on Extrajudicial Executions, supra n 11, holding (at para 8) that binding non-state armed groups to human rights law ‘does not validate ANSA’s authority’ Murray, supra n 1 at 281. 230 For example, through doctrines like the European consensus doctrine or ‘convergence approach’ relied on by the ECtHR (for example, Müller, supra n 70). UN treaty bodies arguably also rely on domestic practice when consolidating their interpretation of provisions in international human rights treaties in their General Comments. 231 See supra n 238. 232 For example, Hollis, ‘Why State Consent Still Matters—Non-State Actors, Treaties and the Changing Sources of International Law’ (2005) 23 Berkeley Journal of International Law 137. 233 For example, Hampson, ‘Other Areas of Customary Law in Relation to the Study’ in Wilmshurst and Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law (2007) at 55–6. See also literature on the absence of sufficient state practice and opinio iuris establishing customary human rights law binding ANSAs, supra n 31. 234 For example, Sivakumaran, supra n 3 at 32 et seq.; Bartels, ‘Timelines, Borderlines and Conflicts: The Historical Evolution of the Legal Divide between International and Non-international Armed Conflicts’ (2009) 91 International Review of the Red Cross 35 at 57–64. 235 See examples given by Sivakumaran, supra n 3 at 546–7. Domestic criminal laws labelling humanitarian organisations that engage with non-state armed groups as ‘terrorist’ can also be seen in this context, for example, Mackintosh and Duplat, Study on the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action (OCHA/Norwegian Refugee Council, July 2013) at 102–11. 236 For example, Geneva Call, Positive Obligations, supra n 153 at 16–17. 237 Such wider complexities will arise from (a) the fact that ANSAs’ quasi-jurisdiction will in most cases be exercised concurrently with the jurisdiction of states or of competing ANSAs, leading to problems with overlapping and potentially conflicting (democratically legitimised) law making and enforcement, or (b) the evasion of obligations by all actors as a result of the emergence of a ‘problem of many hands’. At the international level, problems with the attribution of wrongful acts to more than one duty-bearer may arise. 238 The inconsistency in the use of the terms ‘violations’ and ‘abuse’ by the UN Security Council, the UNGA and the UN HRC reflects the lack of clarity as to whether ANSAs are bound by human rights law: see HLS PILAC report, supra n 33 at 26; Geneva Academy, supra n 33 at 9–11. 239 Ilasçu and Others v Moldova and Russia, supra n 98 at para 333. See also Sargsyan v Azerbaijan, supra n 98 at paras 141, 142, 144 and 148. 240 Sargsyan v Azerbaijan, ibid. at para 149. 241 Loizidou v Turkey, Preliminary Objections, supra n 48; Cyprus v Turkey supra n 140 at paras 76–80; Ilasçu and Others v Moldova and Russia, supra n 98 at para 312. But see the exception of Azemi v Serbia, infra n 247, mentioned below, text accompanying supra ns 247–249. 242 Chiragov v Armenia, supra n 55 at Concurring Opinion of Judge Ziemle, para 4. 243 Committee against Torture, Elmi v Australia (120/1998), Views, CAT/C/22/D/120/1998 at para 6.5. 244 Ibid.; but see Committee against Torture, H.M.H.I v Australia (177/2001), Views, CAT/C/28/D/177/2001 at para 6.4., a decision with a different outcome, once the Somali Transitional Government had been established. 245 See in particular the so-called `Pillar III' of the Responsibility to Protect, encompassing the responsibility of the international community to use appropriate diplomatic, humanitarian and other means [including coercive] to protect population from genocide, war crimes, ethnic cleansing and crimes against humanity as elaborated in the report of the UN Secretary-General, Responsibility to Protect: Timely and Decisive Response, A/66/874-S/2012/578, 25 July 2012 at paras 17 and 20–37. 246 Buchanan, supra n 84 chapter 8; Weller, Escaping the Self-Determination Trap (2008) at 59–69. 247 Azemi v Serbia Application No 11209/09, Admissibility, 5 November 2013. 248 Ibid. at para 47. 249 See supra nn 98 and 99. 250 This derives from the two types of groups (the entire population of a state or sub-groups) that are considered to be holders of the right to self-determination. See sources cited supra nn 79 and 80. 251 Mégret, supra n 79 at 48. 252 For example, Raič, supra n 79 at 247–72. This does not mean, however, that these criteria may not play a role in the political construction of a ‘peoples’ as holders of the right to self-determination advocated by ‘political’ accounts of the right to self-determination: see Mégret, ibid. at 55–8. 253 For example, Weller, ‘The Self-Determination Trap’ (2005) 4 Ethnopolitics 1; Mégret, ibid. at 62 (suggesting that the political account of the right to self-determination would exclude peoples ‘tempted by some quixotic grandstanding’ to become legitimate holders of this right). 254 Mégret, ibid. at 45 and 53–4; the various options are discussed in the literature listed in supra n 88. 255 Mégret, ibid. at 62–3. 256 Representativeness was a precondition for recognition: Wilson, International Law and the Use of Force by National Liberation Movements (1988) at 137–42. 257 This flows from the inter-relationship between individual human rights and the collective right to self-determination discussed in Section 2.A. This aspect was, however, mostly disregarded in the colonial context, see Wilson, ibid. at 85–8. 258 Mégret, supra n 79 at 63–4. See also the so-called ‘saving clause’ included in the 1970 Friendly Relations Declaration and the 1993 Vienna Declaration and Programme of Action, supra n 73, explicitly precluding an understanding of the right to self-determination that authorises or encourages ‘any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.’ 259 See text accompanying supra nn 79–88. 260 Arguments for posing human rights obligations of considerable scope on most ANSAs are regularly supported with the reference to the necessity of protecting people under the control of these groups ‘as much as possible’: see Bellal et al., ‘International Law and Armed Non-state Actors in Afghanistan’ (2011) 93 International Review of the Red Cross 47 at 71; Tan, supra n 44 at 444–50; Clapham, ‘Detention by Armed Groups under International Law’ (2017) 93 International Law Studies 1 at 21; literature cited supra n 25. 261 Besson, supra n 18 at 261–5; and as alluded to concerning various non-state actors in, for example, CESCR, General Comment 14, supra n 72 at para 42; General Comment 12: The right to adequate food (art. 11), 12 May 1999, at para 20; and as set out the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms, GA Res 53/144, 8 March 1999, A/RES/53/144. 262 Besson, supra n 78 at 262. 263 As allegedly suggested by the UN Special Rapporteur on Extrajudicial Executions, supra n 221 at para 25: ‘[A non-state armed group] does not have legal obligations under the ICCPR but it remains subject to the demands of the international community, first expressed in the UDHR, that every organ of society respect and promote human rights.’ And by the ICRC, in International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report for the 31st Conference of the Red Cross and Red Crescent, October 2011, referring to non-state armed groups’ ‘human rights responsibilities’ at 15. 264 For the notion of decentralised and community-embedded armed groups, see ICRC, The Roots of Restraint in War, June 2018, available at: www.icrc.org/en/publication/roots-restraint-war [last accessed 4 April 2020]. 265 Article 42 of the 1907 Hague Regulations refers to occupied territory as territory that is ‘actually placed under the authority of the hostile army’ with the occupation extending to only such territory where ‘such authority has been established and can be exercised’. For an analysis of this provision and evidence required Ferraro, ‘Determining the Beginning and End of an Occupation under International Humanitarian Law’ (2012) 94 International Review of the Red Cross 133. 266 See the wide range of occupying powers’ obligations under the relevant Articles of the Hague Regulations listed in supra n 271, indicating its ‘overall’ control. 267 For example, Tan, supra n 44 at 462–80 on potential overlaps. 268 Benvenisti, supra n 7 at 43. 269 Article 42 of the 1907 Hague Regulations refers to authority exercised by a ‘hostile army’; Oppenheim, ‘Legal Relations Between an Occupying Power and the Inhabitants’ (1907) 33 Law Quarterly Review 363 at 364–9; Bhuta, ‘The Antimonies of Transformative Occupation’ (2005) 16 European Journal of International Law 721 at 726–7 and 738, referring to the ‘naked power’/‘facticity’ on which the authority of occupying powers is based; Roberts, supra n 7 at 255. 270 See Article 431907 Hague Regulations; Article 64 Geneva Convention IV. For a discussion, see Bhuta, ibid. at 726; Dinstein, supra n 7 at 113–16 and 123–5; Benvenisti, supra n 7 at 89–104. 271 In line with occupying power’s obligations under Articles 43, 46, 48–53, 55 and 56 of the 1907 Hague Regulations; and Articles 50(3), 51–52, 55–63, 64(3) and 69 Geneva Convention IV. 272 Bhuta, supra n 269 at 723; Benvenisti, supra n 7 at 59, observing that occupation administrations are largely unaccountable to those they rule over. 273 For a general discussion of the different ways to ‘govern’ and its wider implications, see Koskenniemi, ‘Occupation and Sovereignty: Still a Useful Distinction?’ in Engdahl and Wrange (eds), Law at War: The Law as it was and the Law as it Should be (2008) 163; Ohlin, ‘Acting as a Sovereign versus Acting as a Belligerent’ in Ohlin (ed.), Theoretical Boundaries of Armed Conflict and Human Rights (2016) 118. 274 Of course, in the long-term, political, legal and economic stagnation would lead to problems, similar to those that have been discussed in the context of prolonged occupations by states: see, for example, Chinkin, Laws of Occupation, Proceedings of a Conference on Multilateralism and International Law with Western Sahara as a Case Study, December 2008 at 216; Sassoli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’ (2005) 16 European Journal of International Law 661 at 679; Benvenisti, supra n 7 at 246–8. In such cases, the role of human rights law should arguably increase gradually. © The Author(s) [2020]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Can Armed Non-state Actors Exercise Jurisdiction and Thus Become Human Rights Duty-bearers?
JF - Human Rights Law Review
DO - 10.1093/hrlr/ngaa012
DA - 2020-06-18
UR - https://www.deepdyve.com/lp/oxford-university-press/can-armed-non-state-actors-exercise-jurisdiction-and-thus-become-human-GSQBUdIMAB
SP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -