Article body

Fragile States are understood as States that are unable or unwilling to exercise effective control over part of their national territory. The fragile State’s compliance with its international law obligations is therefore reduced due to objective factors and this has major impact on international human rights law (IHRL) as well. Nonetheless, scholarship has overlooked that fragile States may and sometimes do comply with their positive obligations in areas beyond their effective control under the evolving, effectiveness-based interpretation of IHRL. The paper argues that each of the dominant compliance theories only partially explains the factors influencing fragile States’ compliance with IHRL: instead of limiting compliance to a monocausal model, both rational choices and internal socialisation processes should be taken into account to enhance the fragile States’ compliance. The two main schools of thoughts, rational and constructivist schools of compliance do provide complementary explanations to the questions why and how fragile States can comply with their positive obligations under IHRL.

Rational theories explain that compliance by fragile States with their positive obligations in IHRL entails direct benefits, especially in terms of monitoring of the human rights situation, well-being of the people in the area and international cooperation. Rational interests do not explain however why public bodies act in a way favouring human rights protection in the area beyond the State’s control, especially if their domestic conducts are not reported in international human rights mechanisms. In those cases, constructivism may provide complementary explanation: repeated patterns of norm-compliance play a critical role in creating a common identity, especially domestic actors’ belief in an ideal, active State.

Fragile States are understood as States that are unable or unwilling to exercise effective control over part of their national territory. State practice in international human rights law (IHRL) has used the notion of “effective control” over territory as a synonym of “actual authority”,[1] the main requirement of belligerent occupation within the meaning of the 1907 Hague Regulations.[2] “Actual authority” has two factual criteria: the occupying State has to take physical possession of a land area, making the territorial State incapable of exerting its powers,[3] and be in a position to exercise its authority.[4] Due to the State’s lacking enforcement power in the area escaping its territorial control, its ability to fulfil its international law obligations is reduced. While this reduced ability to comply has major impact on the respect of IHRL as well, the evolving interpretation of international human rights treaties requires the State to take all available measures within its power to protect human rights in the area.[5]

Some fragile States have accepted this evolving interpretation of IHRL and taken specific measures within their power to implement their international human rights obligations in the area outside their effective control that human rights monitoring bodies have sometimes found satisfying the required threshold of positive obligations. Far from making any generalisation about a trend of compliance by fragile States, the present paper is limited to noting that certain fragile States have taken available measures to protect human rights in areas outside their effective control despite their reduced effectiveness. Yet, no study has ever interrogated the theoretical underpinnings of such compliance.

While numerous studies have addressed why Western, mainly powerful States comply or do not comply with IHRL, few authors have applied compliance theories to weak, mainly non-Western States. Fragile States face their inability to perform acts in a part of their territory, on the one hand, and the non-compliance by other international law subjects de facto controlling the area (another State, multiple States, armed opposition groups or an international organisation[6]), on the other.

The paper analyses State practice through international human rights monitoring mechanisms, including regional human rights courts,[7] universal periodic treaty monitoring mechanisms[8] and UN Charter-based mechanisms[9] on compliance by States that are expressly recognised as lacking territorial control over part of their territory. International monitoring bodies have recognised this factual circumstance[10] in only certain fragile States (especially: Azerbaijan, Colombia, Democratic Republic of the Congo, Georgia, Iraq, Republic of Cyprus, Republic of Moldova, Syrian Arab Republic, Ukraine) that encountered territorial fragility for a longer period due to an enduring armed conflict.

To explain the reasons of compliance and non-compliance by fragile States, the paper applies the two main schools of thoughts, rational and constructivist schools of compliance.[11] First, the so-called rational or reputational theories focus on the State’s self-interests and rationality, coercion, cost-benefit calculations and material incentives in choosing compliance.[12] As the fragile State encounters a situation of conflict and lack of effectiveness, any cooperation with the international community including international human rights mechanisms might enhance its likelihood to normalise the territorial situation. Second, the so-called constructivist school, however, emphasises social learning and socialisation in the State’s choice of compliance.[13]

According to constructivists, State authorities might decide to act against the State’s interests, as defined in rational models because their norm internalisation, culture or belief system dictates it.[14] This might apply especially to certain fragile States that have adopted and effectively internalised regional human rights treaty obligations.

Few academic works, mainly in political science, have drawn attention to the importance of capacities and the State’s inability to comply with its human rights obligations,[15] as opposed to the dominant scholarship’s focus on unwillingness.[16] Those authors have, however, ignored that States may and sometimes do comply with their positive obligations in areas beyond their effective control under the evolving, effectiveness-based interpretation of their positive obligations. The present paper fills the scholar gap and argues that each of the dominant compliance theories only partially explains the factors influencing fragile States’ compliance with IHRL: instead of limiting compliance to a monocausal model, both rational choices and internal socialisation processes should be taken into account to enhance the fragile States’ compliance. While the analysis of the applicability of all possible theories of compliance to the context of fragile States exceeds the limits of the present paper, the two main schools of thoughts, rational and constructivist schools of compliance do provide complementary explanations to the questions why and how fragile States can comply with their positive obligations under IHRL.

The paper proceeds as follows. Section II claims that the fragile States’ lacking territorial control affects their ability to comply with IHRL. Section III explains that despite the factual limitation of fragile States to fully comply with IHRL, since the mid-2000s, human rights treaty bodies have increasingly required from fragile States a proactive conduct consisting of various positive obligations. This evolving interpretation relies on the international law standard of due diligence that imposes a realistic conduct, in accordance with the State’s capacity. Section IV explains that several fragile States have voluntarily accepted the dynamic interpretation of treaty monitoring bodies and accepted the positive obligations towards individuals in the area beyond their territorial control. To address the reasons and nature of this compliant conduct by fragile States, dominant compliance theories provide partial and complementary explanations: first, the rational theories (Section V) and second, constructivism (Section VI). The analysis of the theoretical and practical impact of those schools of thought leads to some concluding recommendations as to the best practices to enhance the human rights compliance of territorially fragile States.

I. Territorial Fragility as a Compliance Problem

Weak or failing States, or nowadays the more common term ‘fragile States’ are not legal terms to describe structural problems in the operation and capabilities of certain States. While difficult to define in legal terms, State fragility has been subject to extensive qualitative and quantitative scholarship. Indicators such as the Failed State Index, or its current version the Fragile State Index measure and classify States based on various key political, social and economic indicators and over 100 sub-indicators such as cohesion indicators, economic indicators, political indicators or social and cross-cutting indicators.[17] When defining a “failing State”, the UN Secretary General described a State without “cohesive national authority capable of guaranteeing the security of the State and its people in an accountable manner”, where “State authority is in the hands of local warlords” not under the unified command and control of the government.[18]

International law scholarship considers the loss of the State’s effective control over a part of its territory as one of the factors of the failure or the weakness of the State[19] which often exacerbates other geographical, socio-political phenomena such as armed conflicts, massive migrations or natural disasters. The State’s lacking effective control over part of the national territory entails inherent problems of compliance with IHRL. Without physical control over the territory, the State cannot fully protect and fulfil human rights of individuals situated in the area beyond its territorial control. For instance, State authorities have no access to evidence available in the area, cannot investigate and prosecute perpetrators of human rights violations and cannot fully offer certain remedies to victims without having the physical contact with them. Because of the significant limitation that the lacking territorial control imposes on the State, it is unsurprising that various commentators before the mid-2000s held that the State exercising no territorial control over part of its territory has no obligations under IHRL towards individuals in that region.[20] This dominant view has changed since the mid-2000s, when human rights treaty bodies started to increasingly conceptualise the question from a proactive standpoint, imposing positive obligations on fragile States.

II. Interpretation by Treaty Bodies: Positive Obligations

In their ratification or periodic reporting dialogue, fragile States themselves tend to invoke their structured fragility, especially their inability to control their territory as a compliance problem. Fragile States expressed this inability in two forms: either at the time of the signature or the ratification of the human rights treaty, on the one hand, or in the periodic reporting procedure, on the other.

First, States whose central government has lost effective control over a part of their territory often made unilateral declarations aimed at excluding the application of human rights treaties in their entirety in the given region. Among fragile States, Eurasian States of which territory is in part controlled by a de facto regime, and among them Azerbaijan, Georgia and the Republic of Moldova often had recourse to such unilateral declarations by which they intended to exclude the application of the treaty in its entirety to the region over which they lost control.[21] Ukraine, when it lost territorial control over Crimea and certain areas in Eastern Ukraine, made similar territorial declarations both to some of its already binding human rights treaties[22] and to those that it signed or ratified subsequently.[23] Treaty monitoring bodies, however, rejected the admissibility of those territorial declarations and held that the State cannot arbitrarily and unilaterally curtail its jurisdiction by excluding zones or areas from the State’s territory.[24] Therefore, the territorial declarations of fragile States do not produce any legal effect, while the State’s jurisdiction covers the entire national territory.[25]

Second, fragile States invoke in periodic reporting procedures and regional court procedures the fact that they are unable to control part of their territory.[26] In other words, even if territorial declarations made at the time of treaty ratification cannot exclude the applicability of the human rights treaty in respect of the area, fragile States argued that the factual loss of territorial control may nevertheless have such an effect.[27] If one accepts the jurisprudential principle according to which effective control of a territory entails jurisdiction,[28] one may suppose that reversely, the loss of effective control over an area excludes jurisdiction over the same territory.

Face to the alleged inability to comply with treaty obligations by fragile States in their amputated region, universal treaty monitoring bodies drew diverse conclusions. Most reports concluded the State party’s inability to apply the concerned human rights treaty (36 out of 108 concluding observations referring to the State’s lacking territorial control until 31 May 2020, or 33.3 %).[29] Some reports held that the State encounters difficulties to implement the human rights treaty on account of the lacking territorial control (23 %). Even among the concluding observations talking about the State’s incapacity to apply the treaty, only few affirmed expressly either the State’s lack of jurisdiction,[30] or the difficulty[31] to exercise its jurisdiction in the area. As opposed to these conclusions, few reports (13.8 %) found that the State continues to have jurisdiction and obligations towards individuals situated in the area despite its lack of territorial control.[32]

This varying practice of concluding observations seemed to change, however, from the mid-2000s, as a consequence of the Ilaşcu and Others v. Moldova and Russia judgment of the European Court of Human Rights (ECtHR). In the Ilaşcu case, regarding applicants detained by separatist de facto authorities in the unrecognised Transnistrian region in the territory of the Republic of Moldova, the ECtHR recognised for the first time that a fragile State continues to have positive obligations and jurisdiction over human rights violations in an area outside its effective control but within its sovereign territory.[33] The Court concluded that the State has “a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention”.[34] This judgment largely reflects the decades-long practice of the Inter-American Court of Human Rights (IACtHR) and the African Commission on Human and Peoples’ Rights, which presume the State’s jurisdiction over its entire national territory and research how far the State complied with its obligation of due diligence to protect individuals against third-party violations in areas where the State is absent.[35] Beyond regional treaty monitoring bodies, universal human rights monitoring bodies also adhered to the State’s continued positive obligations regarding an area outside its territorial control. Charter-based human rights bodies[36] and universal treaty monitoring bodies[37] reiterated the same standard as Ilaşcu and addressed to the fragile State various positive obligations with regard to individuals in the area outside governmental control.[38]

The State’s positive obligations in an area beyond its territorial control rely on both its residual effectiveness and awareness of the risk of the wrongful act, the two instigating the standard of due diligence to protect, prevent and repress wrongful acts by third parties.[39] Due diligence requires the State to prevent and repress human rights violations within its territory.[40] Despite the lack of its territorial control, the State can take a broad range of political, diplomatic, economic, legislative, judicial, administrative or other measures within its power to protect human rights against third parties (States or non-state actors). This capacity, also called the ‘capacity to influence’ effectively the action of third parties,[41] one of the preconditions of the standard of due diligence, assesses the actual means in the State’s power to take proactive measures to protect human rights. In other words, despite the loss of territorial control, the State disposes of both the sovereign title over its territory and certain residual effectiveness in the government-controlled area. As Kelsen duly observed, effectiveness in this context, “means only that the principle of effectiveness does not refer to the control of the territory but to the efforts to regain such control”.[42] Mutatis-mutandis, in IHRL effectiveness refers to the capacity to take measures to protect individuals, prevent and repress human rights violations, and not to the State’s actual territorial control in the region.

Certain authors in political sciences noted that overall human rights compliance of certain fragile States has improved, without the change in the State’s effectiveness in the area outside their effective control, by the enhancement of capacities in the government-controlled area.[43] However, they failed to remark the close link between the two: the efforts to regain territorial control and protect human rights in the area beyond governmental control suppose measures of legal, political, administrative and cultural nature[44] taken by the State in the government-controlled area. In other words, better human rights compliance supposes enhancement of effectiveness by the fragile State.

At first sight, requiring fragile States to take positive measures regarding individuals in an area beyond their effective control might seem contradictory: despite the State’s ineffectiveness, it is expected to improve the human rights situation of the area. However, the idea that the threshold of positive obligations depends on the capacities of the fragile State creates a realistic expectation, in line with the standard of due diligence. States are expected to invest in strengthening their effectiveness towards individuals in the area beyond their territorial control as far as possible in the given circumstances. Consequently, IHRL contributes to the effectiveness of territorial States and to the reconstitution of an ideal State, namely, an active State that protects individuals in its sovereign territory.

III. Acceptance of Positive Obligations by Fragile States

The dynamic interpretation of treaty monitoring bodies found positive echo in the compliance practice of the concerned States. As a sign of the increasing authority of the international case law, several fragile States have accepted their positive obligations towards individuals in the area beyond their territorial control.[45] They have adopted a series of positive measures to protect human rights in the area outside their effective control,[46] which can be considered as the adequate implementation of IHRL. Nonetheless, the fact that in some periodic reports the same States also denied their positive obligations[47] shows that the evolving interpretation has not yet soundly stabilised.

Certain quantitative and qualitative data suggest that the international community increasingly accepts and monitors the positive obligations of fragile States regarding the area beyond their control. Limited international case law of regional human rights courts has brought the compliance of fragile States with their positive obligations in the frontline of discussions. For instance, until the end of 2019, the ECtHR found the Republic of Moldova to have violated the European Convention on Human Rights (ECHR) regarding Transnistria only in three out of 33 judgments on the merits,[48] presenting a non-compliance rate of 9 %. The same non-compliance rate with regard to the entire territory was 87 % in average since Moldova’s ratification of the ECHR in 1997[49] and 72 % in 2019.[50] Until the end of 2019, the ECtHR found Ukraine to have violated the ECHR regarding its areas beyond its effective control (Eastern Ukraine, Crimea) in none of the two judgments decided on the merits (out of five finalised cases).[51] While Ukraine’s data should be considered carefully due to the low number of finalised cases from the regions outside governmental control, Moldova’s record suggests a deliberate policy of compliance. The limited case law, however, does not allow evaluating the compliance record of fragile States: thousands of applications submitted against Georgia (Abkhazia and South Ossetia) and Ukraine (Crimea and Eastern Ukraine) are pending before the ECtHR for long years,[52] as the Court has adjourned individual applications while they are legally and factually inked to highly politicized interstate applications.[53] Moreover, individuals from regions outside governmental control encounter systemic difficulties in having access to international courts.[54] What the limited case law nonetheless indicates is an increased acceptance of their positive obligations by certain fragile States.

Some qualitative examples from the practice of human rights periodic monitoring mechanisms corroborate the claim that certain fragile States take their positive obligations regarding the area outside their control seriously. For instance, human rights monitoring bodies welcomed the efforts of Georgia in the domain of the protection of IDPs potentially or actually escaping the area beyond its control,[55] in the restitution of property and compensation for those who had left the government-controlled area and moved to the area beyond government control and in facilitating the visit of international monitoring bodies,[56] or its support of health and education services in the regions beyond its control.[57] Regarding the policies of the Moldovan government on Transnistria, the Human Rights Committee welcomed “the commitment expressed by the State party’s delegation during the dialogue to take all appropriate measures to ensure the effective protection of human rights in that region”.[58] Treaty monitoring bodies welcomed the implementation of a Colombian legislative act that ensures full reparation for the victims of the internal armed conflict[59] or the introduction of the Early Warning System of the Colombian Ombudsman, designed to prevent displacement and other serious human rights violations.[60] Despite the instances of recognised compliance, most concluding observations of universal treaty bodies stress the domains of non- or partial compliance with the expected positive obligations.[61]

These quantitative and qualitative examples, far from proving any general trend among all fragile States, demonstrate that certain fragile States have been able to adopt a series of positive measures to comply with their obligation to protect human rights in the area outside their effective control. While examples of non-compliance or partial compliance are still preponderant in the periodic concluding observations, it is sound to say that fragile States contest the required threshold of proactive conduct rather than the validity of the norm. The next two sections provide for the theoretical underpinning of this evolving State practice.

IV. Rational Theories

The so-called rational theories such as rational choice or reputational theories focus on the State’s self-interests and rational costs-benefits in choosing compliance: the State chooses compliance with international rules because it advances its national interests but it does not need to claim that the national interest itself serves its compliance.[62] This school of thought assumes that States are rational, self-interested actors who seek to maximize their own gains or payoffs, while they have no innate preference for complying with international law.[63] According to rational scholars who focus on reputation, defined as judgments about an actor’s past behavior used to predict future behavior,[64] the reputation of the State’s conduct influences its choices: a decision to violate international law will increase today’s payoff but reduce tomorrow’s benefits.[65] The rational theory comprehensibly explains States’ compliance in areas such as international financial and economic law where cooperation and coordination entails direct costs and benefits,[66] but are hardly obvious in other fields not characterised by reciprocity. Especially in IHRL, reciprocity or traditional rational choice mechanisms can hardly explain States’ compliance.[67] As rational choice theories exclude that altruistic considerations such as an internalized desire to follow the law justify compliance,[68] rational interests and external reputation of the State’s conduct are the only decisive factors. In the case of the fragile State’s choice to comply with positive obligations, such rational considerations are far from obvious. Moreover, certain rational choice theorists are sceptical towards IHRL as universal human rights treaties lack effective or reliable coercive enforcement mechanism[69] such as an international human rights court. Their overall conclusion is that the foreseeable benefits do not change States’ compliance with IHRL, as human rights–abusing States can ratify the treaties with little fear of adverse consequences, while States with a higher culture of human rights do not have to change their behaviour only because of their party status to human rights treaties.[70] Despite the scepticism of authors representing rational compliance school on the importance of costs and benefits of States’ compliance with UN treaty mechanisms, this section argues that the treaty compliance by fragile States is both costly and entails direct benefits in terms of international monitoring (A), the well-being of the people (B), and international cooperation (C).

A. Monitoring as a Benefit

Analysts of rational theories consider universal treaty monitoring mechanisms generally weak, as their public information on the States parties’ human rights practices does not specifically evaluate compliance with the treaty obligations nor is it well publicized.[71] Empirical studies demonstrate that publicity of human rights violations by domestic authorities increases human rights compliance of the State, but it does not necessarily depend on the given State’s party status to IHRL treaties.[72] Neither human rights NGOs and journalists reporting on human rights abuses nor other governments distinguished between signatories and non-signatories when they monitor human rights abuses.[73] Therefore, adepts of rational theories may legitimately ask whether fragile States have any interest in participating in universal treaty mechanisms.

Despite the scepticism of rational scholars about the effectiveness of universal human rights treaty monitoring procedures, fragile States’ practice shows that compliance with the positive obligations to report on, monitor and investigate human rights violations entails direct benefits. In an area where agents of the fragile State have no physical access, the State party is not in a position to provide first-hand information on the situation of human rights.[74] Nonetheless, as a compliance measure to strengthen their jurisdiction in the area outside their control, some fragile States set up a governmental body charged with the monitoring and reintegration of the area.[75] As those government bodies can only provide remote monitoring of human rights in the area, based on indirect sources, the State has a primary interest in inviting and promoting international monitoring.[76]

A further, less costly measure of compliance in terms of human and financial resources is the mere invocation of and protestation against the unlawful territorial situation in human rights mechanisms. For instance, without truly detailing the positive measures taken to protect human rights in the area, Azerbaijan regularly uses periodic reporting mechanisms as a forum for its territorial claim against Armenia whom it considers as an occupying power in Nagorno-Karabakh.[77] Other fragile States such as Ukraine or Georgia have decided to exhaust all available international judicial and non-judicial mechanisms to challenge human rights violations and, indirectly, the alleged occupation of their territory by Russia.[78] Those examples indicate that the mere publicity of the human rights treaty mechanisms, even without the latter’s competence to issue binding decisions, constitutes an argumentative benefit for the fragile State.

B. Well-being of the People in the Area

Rational choice advocates accept that certain national interests can justify compliance even in the field of IHRL. The State’s interest in the well-being of persons under its control is one of such rationales.[79] However, this does not necessarily apply to individuals living outside the State’s territorial control but still within its territory, in a region beyond its territorial control. However, even authors representing the rational choice theory admit that the State can have a lower interest in protecting foreign citizens, especially coreligionists, co-ethnics, and co-nationals living in other States, or of States with whom they have colonial, historic or sentimental ties, or trade relations.[80] Between the two groups of persons, individuals under the government’s control and foreign citizens, one can perfectly recognize that a State does have rational interests in protecting the human rights of its nationals in an area outside its effective control as their sort might be of major concern for the domestic electorate.

Nonetheless, protection of nationals only partly explains compliance, especially regarding situations where the population of the area beyond the State’s territorial control has been subject to forced population changes. Examples include Northern Cyprus or Nagorno-Karabakh, both populated by settlers who are non-nationals of the fragile State, Cyprus and Azerbaijan, respectively. Even in other regions, citizens of neighbouring countries, foreign fighters or other immigrants have diversified the ethnic and national landscape of the area.[81] As a consequence, beyond nationals of the fragile State, residents holding other nationalities have settled in the area. What is appealing from some fragile States’ declarations is their readiness to fulfil their positive obligations with regard to all individuals rather than only their citizens residing in the area.[82] The Iraqi government also expressed this policy to protect individuals irrespective of their nationality when it declared that “Iraq is making every endeavour to fulfil its moral and legal obligation under the provisions of international treaties to protect the lives and future of children by shielding them to the greatest possible extent from armed conflict and all acts of violence”.[83]

This policy to protect non-nationals in the area is all the more justified that nationals of the State and their descendants might have lost their identity documents while they forcefully obtained a new nationality due to the massive distribution of passports by an occupying or outside State.[84] The policy of extraterritorial ‘passportization’, for example that of Russia executed in Transnistria, South-Ossetia, Abkhazia or Crimea, is presumed as unlawful in international law,[85] as it is likely to violate the prohibition of discrimination based on racial or ethnic origin and to lead to the loss of the nationality of the territorial State.[86] On the one hand, protecting foreign citizens in the area beyond the fragile State’s control may not, however, a priori serve any direct interest of the State. On the other hand, it must also be admitted that certain fragile States distinguish between the protection of their citizens and settlers whom they consider illegal.[87] In such scenarios, the fragile State has to accommodate its positive obligations under IHRL, on the one hand, and the general international law obligation not to recognise as lawful a situation created by serious breaches of peremptory norms, on the other.[88] As the accommodation between the two rules in tension is unclear, rational theories recognise that the cost of the failure to take positive measures of protection vis-à-vis settlers may be relatively low provided that the State is able to persuade others that its conduct was actually in compliance with a reasonable interpretation of the law.[89] The ambiguity of the norm will incite the fragile State to provide an explanation in the human rights mechanism for why its behaviour is in compliance with the given treaty; therefore, cost-benefit calculations will still matter.

C. International Cooperation

Another interest that rational choice theorists apply to IHRL is that human rights compliance acts as a signal to other States which are likely to seek cooperation with compliant partners.[90] The so-called signalling theory assumes that persons undertake the costs of compliance in exchange of future benefits in terms of trust and cooperation from the part of other persons.[91] Applying this theory to IHRL, the cost would be the fragile State’s efforts to take measures to protect individuals in the area beyond its territorial control, while the benefit is its future cooperation with other States.[92]

To a certain extent, fragile States may expect foreseeable gains in terms of international cooperation: they may expect development aid, humanitarian or economic assistance and even military cooperation with other States and international organisations. An increasing number of international organisations and States require human rights compliance as a prerequisite of their development aid programmes. However, those conditional benefits require proven engagement in improving human rights records by the fragile State, not only in the government-controlled area but also regarding the area beyond its control.[93] Therefore, such conditional benefits might be costly in terms of capacities that the fragile State should invest in its human rights system.

In case of the most serious massive human rights violations, the international community is obliged to cooperate with and assist the fragile State that is unable to control an area within its territory. This follows first from the concept of ‘Responsibility to protect’, a theory according to which it is the territorial State’s primary responsibility to guarantee human rights in its territory.[94] Under the concept, the international community is obliged to assist the unable State to protect the population from the commission of the gravest human rights violations (genocide, war crimes, ethnic cleansing and crimes against humanity).[95] In case of those gravest human rights violations, fragile States have often expressed request for international assistance in the protection of human rights in the area.[96] Especially the hope to invite peacekeeping forces under the control of an international organisation as a real alternative to territorial control by other actors constitutes an incentive for which fragile States expressed their willingness to comply with IHRL.[97] As seeking the assistance of other States and international organisations is one of the available measures through which the State can fulfil its positive obligations,[98] its reiteration in periodic reporting mechanisms is both a relatively costless expression of compliance and an expected benefit.

It follows that international cooperation, depending on the type of the human rights violations in the area, may require certain investments by the fragile State in its human rights system or relatively costless international claim for assistance. The benefit, international cooperation, enhances the fragile State’s effectiveness in terms of financial, humanitarian, economic, military capabilities.

All the above-mentioned factors provide certain benefits for fragile States, and thus constitute interest-based explanations for compliance. They contribute either to the fragile State’s claim for territorial sovereignty as a litigation strategy or enhance its effectiveness, as a material element.

V. Constructivism

Rational theories do not entirely explain all conducts of fragile States, especially domestic conduct not reported in international human rights mechanisms that complies with IHRL. None of the above-mentioned rational interests fully explains why public bodies act or do not act proactively to prevent and mitigate human rights violations in the area beyond governmental control. Constructivists challenge rational theories and see social interaction as central to shaping human conduct. Instead of interests as the origin of legal obligations, constructivists claim that through interaction and communication based on norms, States generate their identities and interests.[99]

For constructivists, public authorities of fragile States may decide to act against the State’s interests, as defined in rationalist models, because their norm-internalisation, culture or belief system dictate it.[100] Instead of an expected benefit in terms of the State’s sovereignty or effectiveness, State authorities act, under the constructivist theory, out of the “internalization of the norms’ generalized validity claim”.[101] Constructivists call socialization processes the interactions through which pro-norm behaviour becomes internalized.[102] Socialization is the result of interactions of the main law-making subjects, States, intergovernmental organizations, and other non-state actors such as NGOs, citizens, and the media.[103] To scrutinize how far those actors have internalized the fragile States’ positive obligations regarding areas outside their territorial control, the contribution of each of the major international actors will be questioned: State authorities (A), regional human rights monitoring bodies (B), the international community including intergovernmental organisations and third States (C), and the civil society understood as NGOs, citizens and the media (D).

A. State Authorities

Constructivists examine how far State authorities interact with other international and domestic actors in internalizing a given norm. As explained above, fragile States have declared their commitment to positive obligations regarding the area beyond their control but have not necessarily fully complied with the expected threshold of diligence. Various domestic authorities have contributed to the compliance, at least partial, with those obligations: the executive including especially investigative and diplomatic authorities, courts,[104] legislation,[105] ombudsman office[106] may equally play a role in preventing, repressing and mitigating human rights violations in the area beyond governmental control. The principle of territorial integrity, which is in accordance with international law standards,[107] is without doubt one of the main constitutional law foundations underlining this domestic practice.

For constructivists, a norm only acquires legality if a “shared understanding” makes it intelligible, that is beyond the formal lawmaking and the rule’s validity, a community of practice builds up a practice of the norm’s legality in legal interactions.[108] As for constructivists it is practice rooted in the criteria of legality that grounds continuing obligation, interactionalism explains the formulation of customary law as arising from state practice plus opinio juris, that is the States’ belief in the binding character of the custom. [109] Whereas Georgia went as far as to speak about its positive obligations towards its separatist regions “imposed by the Convention and the customary international law”,[110] the above-mentioned inconsistencies in the views of States and the treaty bodies make it premature to speak about an established custom. Considering the evolving State practice and the gaps in the scope of positive obligations, one can nonetheless regard the territorial State’s positive obligations as a progressive development of international law.

B. Regional Human Rights Monitoring Bodies

The case law of regional monitoring bodies has decisively influenced the domestic case law of certain fragile States. For example, in accordance with the case law of the ECtHR, domestic courts of the Republic of Cyprus engaged the responsibility of the Cypriote State for its failure to comply with the procedural limb of the right to life and awarded damages to the claimants, relatives of missing persons who disappeared during the Turkish invasion.[111] In Moldova, criminal courts quash the judicial decisions of Transnistrian de factoauthorities if their procedure was vitiated or contrary to article 6 of the ECHR, referring to the positive obligation under the Ilaşcu judgment,[112] and open criminal proceedings against the de facto judges who breached those human rights. The ECtHR considered those measures as satisfying Moldova’s positive obligations[113].

In Colombia, courts act in line with the Inter-American case law when deciding cases about guerrilla regions. The case law of the IACtHR has strongly influenced the State responsibility cases of the Colombian Council of State:[114] when the court has no evidence on the active participation (support, authorisation) of the State authorities in the human rights violations committed by non-state armed groups, it examines whether the violations are due to an omission of the authorities. If the latter were unable to foresee the risk of the violation, the responsibility of the State is not engaged.[115] However, when both the activity and the military objectives of the guerrillas in a given region were of public knowledge – this was the case in the ‘demilitarised enclave’[116] –, the Council of State concluded that the argument of force majeure was not admissible and the predictability of the violations justified the engagement of the State’s responsibility for its own omission.[117] Like the IACtHR, the Council of State stresses that through the non-respect of the obligations of due diligence, the territorial State itself created the situation of risk.[118]

In those cases, compliance by the domestic authorities does not necessarily serve the direct interests of the State. Paying compensation to victims or investigating about human rights violations occurring in the area beyond the State’s control do not serve the budgetary or administrative interests of the fragile State. Such measures rely much more on an internalised pattern of belief in the positive obligations under the regional human rights treaty than on rational interests or coercion. In fact, each of the above-mentioned States presents a good example of norm internalization. In the Republic of Moldova, regional organisations such as the Council of Europe and the OSCE have provided since the time of the Ilaşcu judgment regular training and assistance for local judges and prosecutors.[119] In Colombia, judges of the supreme judiciary such as the Council of State or the Constitutional Court are “groups of progressive lawyers”, mainly trained in the United States and Europe, who have constructed the IACtHR’s jurisprudence as a source of constraining authority.[120]

Constructivism, furthermore, explains what identity regional human rights bodies contribute to. One of the main rationales of the fragile States’ positive obligation is the concept of an ideal State under the standard of due diligence. This foresees a proactive State that cares for individuals even in areas beyond its territorial reach, in accordance with its effective powers. As the Inter-American Court and the Commission formulated, the State has a role of ‘guarantor’, initially used to express the specific position of the State vis-à-vis persons deprived of their liberty by State authorities.[121] Later, the IACtHR slightly extended the notion to human rights obligations of the State vis-à-vis several categories of persons in a position of vulnerability,[122] whereas in its recent case law, it understands under this notion the position of the State towards any person coming within its jurisdiction.[123] The Colombian case law has internalised the same notion and invokes it whenever it applies the State’s positive obligations towards victims of guerrilla regions.[124] Less expressly, the Moldovan case law regularly refers to the State’s obligations under Article 1 of the ECHR to adopt all kinds of available measures - economic, diplomatic or legal or otherwise - in order to ensure that individuals’ Convention rights are respected in Transnistria.[125] The concept of an ideal, active State creates a common legal identity of individuals both in the area outside the fragile State’s control and in the government-controlled area. The norm of obedience to regional human rights standards, if consistently followed as a pattern, might therefore create a common identity in those regions.[126] For instance, in Moldova, confidence-building measures construct that common identity in the two borders of the Dnistru River among judges, lawyers and prosecutors to improve their professional knowledge, skills and experience in implementing the ECHR at the national level.[127] Facilitating such patterns of compliance leads to a solidification of the norm-conformity, human rights culture and a regional identity of the addressees.

C. The International Community

In line with the evolving interpretation of human rights monitoring bodies, certain international organisations such as the Council of Europe[128] and the United Nations, especially the UN Security Council[129] or the Human Rights Council[130] adopted recommendations reiterating the fragile States’ positive obligations vis-à-vis individuals in areas beyond their territorial control. Especially the first pillar of the concept ‘Responsibility to protect’, the State’s primary responsibility to guarantee human rights in its territory has broadened the international community’s acceptance of those positive obligations.[131] The European Union, as a regional organisation of economic integration, also called upon the Republic of Moldova as an associated State “to take concrete steps to improve the livelihoods of the population” in the area beyond its territorial reach.[132] However, it has not systematically recommended the same obligation vis-à-vis its other associated States such as Georgia, Syria, or Ukraine that have lost territorial control over part of their territory.

Some third States, not affected by the territorial conflict confirmed their shared understanding about the fragile State’s positive obligations regarding individuals in the area beyond governmental control.[133] Nonetheless, the fact that various other third States[134] and the fragile State themselves[135] often presented views that ignored those positive obligations shows the somewhat limited consensus or awareness of the international community on the evolving interpretation.

D. Civil Society

For constructivists, the question of how far the norm internalisation has been effective is not limited to the conduct of State authorities. A new standard is internalized by a wide range of actors: the shared understanding of a norm is generated from epistemic communities, that is knowledge-based networks that enjoy authority due to their expertise and impartiality, and create policy-relevant knowledge.[136] Those epistemic communities might instigate the procedure of norm internalisation through promotion of interactions that ultimately occur amongst individuals or groups of people.[137] Especially NGOs influence State compliance by their reporting, monitoring and awareness-raising activities.[138]

Unlike rational theories, constructivism accepts that the interactions of non-state actors can lead to a new interpretation of an existing treaty norm through subsequent practice.[139] This fits to the commonly accepted view according to which the conduct of non-state actors may be relevant when assessing the subsequent practice of States parties to a treaty.[140] The more actors of the civil society invoke the fragile State’s positive obligations in domestic and international interactions, the more they contribute to the internalisation of the evolving interpretation in IHRL.

In regions beyond State territorial control, the proactive litigation activity of certain NGOs has largely contributed to the shared understanding on fragile States’ obligations.[141] In periodic reporting mechanisms, civil society submissions on the fragile States’ reports rarely address human rights problems specifically in the region beyond State territorial control.[142] Areas where egregious violations of international humanitarian law and IHRL took place such as the territory controlled by the so-called Islamic State, however, provoked various shadow reports addressing the State’s positive obligations.[143]

In certain cases, the State intervened to protect human rights in the region beyond its effective control only under the pressure from the civil society.[144] For instance, after years of successive Transnistrian applications filed with the ECtHR against the Republic of Moldova, the Moldovan government accepted that the effective protection of human rights in the area outside its control can only be achieved hand in hand with a genuine civil society in the region, “international partners”, especially those involved in the settlement process (including third States and international organisations),[145] NGOs and mass media.[146]

In summary, constructivism explains how progressive development of international law such as the evolving interpretation of fragile States’ positive obligations is created through a pattern of interactions by various actors. Constructivists encounter, however, difficulties to explain instances of non-compliance. For constructivists, non-compliance occurs not because of the calculated weighing of costs and benefits of compliance but instead because of insufficient information or capacity on the part of the State.[147] They admit that the State’s deficit in domestic regulatory capacity, scientific and technical judgment, bureaucratic capacity, and fiscal resources do limit the compliance with positive obligations.[148] The constructivist model also fails to predict which norms will become internalized through socialisation,[149] and how far fragile States not parties to regional human rights treaties with a binding monitoring mechanism internalise the evolving interpretation of positive obligations. Despite those limits, constructivism provides a feasible explanation of existing patterns in domestic practices, such as those in certain State parties to regional human rights treaties with a solidifying international case law. Furthermore, the constructivist suggestion to provide facilitation and capacity building as the most effective response to capacity limitations[150] fully applies to fragile States. The more State authorities and the civil society benefit from the international community’s technical assistance and capacity building on the State’s positive obligations, the more the evolving interpretation is internalised.

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Fragile States are unable to fully satisfy their obligations under IHRL for objective reasons, especially due to their lacking territorial control over a part of their territory. Their positive obligations are therefore reduced and interpreted under the standard of due diligence, expecting a realistic conduct in the given circumstances. Despite their reduced capacity, certain fragile States have made significant efforts in areas outside their effective control to fulfil their international human rights obligations and have sometimes been found to satisfy the required threshold.

To address the reasons and nature of the conduct of fragile States, existing compliance theories can provide partial and complementary explanations. Going beyond the use of only rational or constructivists theories, various authors concluded that compliance is not mono-causal, but multi-causal that relies on both rational choices of States and internal socialisation processes.[151] The study of the positive obligations of fragile States under IHRL in areas beyond their territorial control confirms those hybrid approaches.

Rational theories explain that compliance by fragile States with their positive obligations in IHRL is both costly and entails direct benefits, especially in terms of monitoring of the human rights situation, well-being of the people in the area and international cooperation. Those factors provide benefits and require certain investments by the fragile State in its human rights system or relatively costless international claims for assistance. From the point of view of rational theories, the international community and especially human rights monitoring bodies should stress those benefits while addressing realistic recommendations to fragile States.

None of the above-mentioned rational interests explains why public bodies act in a way favouring human rights protection in the area beyond the State’s control, especially if their domestic conducts are not reported in international human rights mechanisms. In those repeated cases of compliance, constructivism may provide complementary explanation: repeated patterns of norm-compliance play a critical role in creating a common identity, especially domestic actors’ belief in an ideal, active State. Constructivism explains why the facilitation of norm internalisation matters: by diffusing awareness of various domestic actors of the State’s positive obligations, the international community contributes to compliance. Capacity building, technical assistance and training of legal practitioners might all enhance compliance by fragile States, without the need to search for benefits outside the State’s legal system. Those measures of norm internalisation should expand to all stakeholders of the domestic legal system: the executive, legislative and judiciary branches of State authorities, and the civil society understood as NGOs, citizens, and the media.