Council of Europe treaties are applicable throughout the whole territory of each Contracting Party and all Member States are legally bound to guarantee, not only in theory but also in practice, the rights and freedoms protected by the European Convention on Human Rights (ECHR) to all individuals in accordance with Article 1 of the Convention.Footnote ¹ Yet, as Mary Robinson has noted ‘[i]t is a frequently observed paradox of international human rights law that it often lacks effectiveness in areas where it is needed most’.Footnote ² This book has considered the problem of so-called operational ‘grey zones’Footnote ³ within the Council of Europe area, where human rights monitoring, advisory and other mechanisms are unable to function freely and effectively, resulting in millions of people falling outside the effective sphere of protection of Europe’s human rights system.Footnote ⁴ Despite having existed for a protracted period of time, this issue has yet to receive the necessary attention and concrete follow-up by Member States, and statutory and non-statutory bodies of the Council of Europe. A central contention of this monograph has been that although the CoE cannot resolve conflicts, it has a legitimate statutory interest and the necessary tools to help improve the effectiveness of European human rights standards in all conflict-affected or otherwise contested territories in Europe. This ordre public obligation flows from the Statute and is directly linked to the object and purpose of the organisation.

Russia’s war of aggression on Ukraine, which began in 2014 and dramatically escalated in 2022, has brought these issues into sharp focus. However, as I have emphasised, Ukraine is not the only part of Europe experiencing some form of conflict or contestation, as currently an estimated 10 million people live in affected areas right across Europe. The contexts vary dramatically, and one must be careful not to conflate them or draw false equivalences, but in Chapter 2 I offered a high-level snapshot of current examples that exist in Eastern Europe (Transnistria and currently occupied parts of Ukraine), the South Caucasus (Abkhazia, South Ossetia and the Karabakh region/Nagorno-Karabakh though circumstances there changed profoundly in 2023), and the Eastern Mediterranean (Northern Cyprus). Several of the affected regions are occupied by and are under the effective control or decisive influence of Russia, which presents a major challenge since Russia was expelled from the CoE in March 2022 and so will require even more concerted, nuanced and patient responses.Footnote ⁵ Kosovo is a sui generis case under international law and so largely incomparable to other contexts; however, it too has been unable to access the full range of CoE monitoring and advisory supports and the population currently cannot benefit from access to the European Court of Human Rights. The purpose was to paint a picture of the variety and complexity of contexts but also to stress the probability of other cases emerging with their own unique features and constraints over time. In other words, this has not been an exclusively retrospective exercise, but it has significant future-proofing value if considered and acted upon.

The heterogeneity and complexity of contexts give rise to a wide variety of human rights issues of concern, oftentimes acute, including torture and ill-treatment, enforced disappearances, sexual and gender-based violence, domestic violence, displacement, discrimination, impunity and lack of access to justice, impossibility of securing reparations, limitations on access to education or the protection of minority rights. Millions of people have been internally displaced or sought asylum as a direct consequence of these conflicts, which has given rise to or has exacerbated other risks, including the risk of trafficking. The risk unresolved conflicts present for individual human rights is therefore pronounced and severely diminishes the effectiveness of the Convention system. The inadequacy of the political and institutional engagement with the facts on the ground represents a serious, ongoing and growing risk for the longer-term future of the Council of Europe’s institutional and treaty framework.

I proposed reconceptualising the ‘CoE system’ from one traditionally seen as a hierarchy of autonomous institutions towards an understanding of a matrix of mutually reinforcing judicial and non-judicial components for which Member States have collective responsibility. Such a system constitutes more than the sum of its parts. I argue that a whole-of-system approach is especially important when faced with systemic problems of such complexity and political sensitivity. Whilst the Court plays an essential role, over-reliance on it risks eclipsing other actors in the system and undervaluing the important contribution they can make. This has a consequential impact on the resourcing and political emphasis given to these monitoring, advisory, discursive and cooperation processes. Indeed, I go further to argue that the largely unattainable expectations on the Court pose a significant risk to its own legitimacy as its judgments relating to areas of conflict are becoming increasingly inexecutable. All Council of Europe organs have a role to play, and a complementary, system-wide approach is therefore essential. As the CoE is not a forum for conflict-resolution per se, indeed matters of defence are expressly excluded from the CoE’s remit,Footnote ⁶ its added value is principally as a conflict-prevention, conflict mitigation or post-conflict support mechanism. Its role in enhancing rights protection and fostering democratic security in situations of conflict and contestation in Europe, and its potential to strategically align with broader peace and accountability processes is underestimated, under-resourced and under-mobilised.

In Chapter 3, I unpicked the concept of shared, or collective, responsibility, a term that developed its own ambiguous ecosystem over the ten-year Interlaken Process, but which reduced its meaning to an overly narrow focus on the ECHR control system. I propose that the protection of human rights in grey zones is a matter of first principles and so requires us to consider the very object and purpose of the Council of Europe, which was established as a direct consequence of war. I argue that systemic and persistent limitations in the functioning of the broader CoE system in areas of conflict must consequently change the nature of the response. I suggest that such situations give rise to an ordre public imperative shared amongst all Member States, which in no way seeks to encroach or substitute the responsibility of the territorial state or any state exercising effective control but rather brings a far more concerted focus on rights-holders and the potential roles of the multitude of actors including within the CoE. I further suggest that public order, when used as a tool for the intra-territorial effectiveness of the ECHR, constitutes a clear legal norm as it creates an exception to the state’s right to act voluntarily (i.e. it limits the possibility to declare a diminished level of responsibility for a particular region) on one hand, and it generates an imperative to act collectively, on the other. I emphasise again that although ‘grey zones’ always arise due to political conflict and so durable solutions depend on political agreement, the CoE can and should play a more decisive and meaningful role at all stages of peacebuilding and post-conflict development, drawing on its unique structures and acquis of standards.

To confirm the validity of a more expansive understanding of the CoE system, Chapter 4 examined the manner in which the European Court of Human Rights has interpreted ‘jurisdiction’ under Article 1 of the ECHR in relevant cases. This analysis showed the extent to which the Court has considered the ECHR to be applicable in contested territories and under whose legal framework. The case-law clearly indicates that ‘jurisdiction’ is a threshold criterion, but it is not necessarily restricted to the national territory of states party to the Convention. The analysis reveals that the Court is consistently inconsistent, oscillating between highly liberal approaches (such as in cases linked to Northern Cyprus) to unjustifiably restrictive approaches (à la Banković), and partly back again. Its legitimisation of the rights vacuum in Georgia v. Russia (II) has cast a particularly dark shadow on the Court’s practice, especially when considered in the context of Russia’s aggressive war in Ukraine. The Court and the Committee of Ministers (CM) also face enormous implementation challenges in cases related to grey zones, which highlights the limits of the Court in affecting general or individual justice in practice. The chapter concludes that the effectiveness of the ECHR in such regions demands looking beyond the Court to the broader CoE system.

I turn then to the CoE’s experience of human rights innovation in areas of conflict, to highlight both the breadth and depth of experience. Chapter 5 focusses on the case study central to the monograph, Kosovo. The unique historical, political and legal developments set it apart from all other cases, but these distinctions do not render the case irrelevant. On the contrary, I consider the CoE’s experience developed with and in Kosovo since 1999 as being instructive in developing engagement strategies elsewhere. Several examples of pragmatism and innovation are discussed including the evolution of the principle of engagement on the basis of functional capacity and the practice of monitoring substitution. I strongly challenge the assumption that the CoE experience in Kosovo is attributable only to the existence of a UN Security Council resolution, to acknowledge that while it did facilitate engagement, it was not a sine qua non framework. The Kosovo experience demonstrates clearly that when there is a level of political willingness, innovation can be pursued and pragmatic solutions can be found to enable monitoring and cooperation activities to operate effectively in areas of conflict and contestation. Objectivity must guide the Council of Europe’s interactions, but the principle of engagement on the basis of ‘functional capacity’ in particular deserves much wider consideration by the CM and Secretariat in other areas of conflict or contestation.

The proposed judicious rapprochement suggested in Chapter 6 is concerned with transforming ideas of a relatively high level of abstraction into meaningful and practical actions that could be pursued in accordance with the Statute to enable progress. Member States as well as statutory and non-statutory bodies should deploy maximum openness, flexibility and innovation in accordance with their complementary mandates and drawing on the full range of opportunities provided for under international law. I suggest that the Secretary General (SG) has more scope to manoeuvre than has been exercised to date and that s/he should feel empowered to do so based on the ‘normative will’, which flows from the SG’s statutory responsibilities, though this of course must be exercised tactfully. Independent institutions such as the Commissioner for Human Rights, monitoring mechanisms such as the Committee for the Prevention of Torture (CPT), Confidence Building Measures, cooperation programmes and other forms of cooperation, including appropriate political engagement by the CM and Parliamentary Assembly of the Council of Europe (PACE) should be pursued with the explicit purpose of enhancing human rights protection for affected populations. The importance of political will of the Member States and the leadership of the SG will determine how successful any rapprochement can be. The chapter also accepts that many practical challenges exist which require careful consideration and nuanced responses including issues of consent, the practicalities of accessing a territory, reporting modalities and the safety and security of delegations and the permanent risk of unintended consequences. The cost of inaction in relation to the protection of human rights in areas of conflict and contestation now vastly outweighs any risk of action. Additionally, the chapter notes the complementary roles of independent civil society, human rights defenders, independent human rights institutions, free media and academia are increasingly important in areas of conflict and contestation and so the CoE should progressively seek to enhancing support, dialogue and cooperation with them.

The challenge of ensuring the effectiveness of the CoE in grey zones is one of first principles, which represents a risk to the integrity and long-term future of the CoE’s institutional and treaty system. Grey zones are not temporary anomalies in the international legal order; many have shown themselves to be semi-permanent.Footnote ⁷ In the absence of proactive efforts to address effectiveness challenges, their existence will progressively degrade the integrity of the CoE system. Meanwhile, affected populations will feel increasingly disenfranchised from the European human rights system and will have very little incentive to seek to align more closely to it. On the other hand, de facto authorities must also understand that even illegitimate assumption of the powers of a state must be accompanied by assumption of the corresponding responsibilities of the state towards its inhabitants. This includes a duty to cooperate with international human rights monitoring mechanisms, a matter which territorial states also must be reminded of and held to account for in any situations of non-cooperation.

On its seventy-fifth anniversary and facing the prospect of dealing with the consequences of long-term conflict on the continent, the Council of Europe must vigorously defend its values and proactively pursue its mandate for all people in Europe. It must work tirelessly to support ECHR rights-holders, practically and effectively regardless of where they are in the CoE area, and it must ensure the door for normative cooperation is always open including when faced with belligerence or bad faith. In considering how we might approach this fundamental issue of human rights protection in Europe in the future, the words of former prime minister of France Edouard Herriot on occasion of the establishment of the Council of Europe come to mind:

This is an event of cardinal historical importance.