Up to now, this book has explored three principal issues. The first was the applicability of the Council of Europe’s (CoE’s) normative framework throughout the CoE area, particularly in areas of conflict and contestation. This sought to clarify that the European Convention on Human Rights (ECHR) is normally applicable in these areas but is not consistently justiciable due to the fact that ‘jurisdiction’ is a contestable threshold criterion and the associated political conflicts prevent the wider CoE apparatus from engaging consistently and effectively. The second was an exploration of the effectiveness of the European Court of Human Rights (ECtHR) case-law related to these territories, which revealed that Article 1 case-law has been inconsistent and results largely unsatisfactory. This led to a proposed reconceptualisation of the CoE system as a matrix of complementary components rather than a hierarchy of autonomous institutions with a view to improving its practical effectiveness in affected regions. The third consideration was whether there is a European ordre public imperative on Member States to collectively seek to maximise the effectiveness of the system in areas of conflict and contestation, given the risk such regions pose to the object and purpose of the CoE and the Convention in particular. The innovative techniques employed in the case of Kosovo were examined to determine their replicability elsewhere. In this chapter, legal, political or operational activities that might contribute to satisfying the ordre public imperative will be considered. Any actions will depend on the specific circumstances of each case at a point in time, but the central proposition is that a rapprochement should be pursued in a more proactive and judicious manner so as to avoid leaving rights holders behind.
6.1 Importance of Realism and Political Will
It is perhaps tempting to call for the full, unhindered application of CoE standards right across the CoE region, including in areas of conflict and contestation. This is of course desirable but framed in such simplistic terms fails to recognise the real-world tension between law and politics facing affected areas. This monograph is not an expression of idealism, and it aims to move decisively beyond the theoretical. It seeks legal and practical responses to deeply complex political realities drawing on statutory and treaty-based commitments that all Member States have voluntarily subscribed to. This requires, first and foremost, the political will of Member States. The political will of CoE Member States is entirely deterministic of human rights outcomes, and in regions of conflict and contestation the situation is often dependant on the political will of not just one Member State but a variety of third-state and non-state actors. Often these actors are unwilling or unable to cooperate in good faith, and international law is ill-equipped to compel them to do so. In other cases, it is deemed unappealing to permit any actors other than the territorial state to have any kind of role.
Political will is also essential if the CoE system is to do more to contribute to the achievement of durable political solutions. Simply put, a lack of political will precludes the possibility of progress. As Deputy Secretary General (DSG) Bjorn Berge emphasised, ‘ultimately, it is for member States themselves to help us push for progress’.Footnote 1 Achieving progress though is a deeply complex proposition against such a fraught political background. This challenge has been openly acknowledged by the European Union (EU) for example, which noted in a report on the impact on human rights of frozen conflicts that
Due to the uncertain legal status of Transnistria, Abkhazia, South Ossetia and Nagorno-Karabakh, the international community, including the EU, has very limited options for getting directly engaged in defending human rights in these regions.Footnote 2
The same cannot necessarily be said for the CoE, given that all of the listed territories come within the territorial borders of CoE Member States, albeit occupied by a non-Member State in several cases. Indeed, the Committee of Ministers (CM) has engaged with this issue on numerous occasions and repeatedly expressed concern about confrontations and unresolved conflicts that affect certain parts of the continent,Footnote 3 in particular the implications for human rights protection. And whilst legal,Footnote 4 politicalFootnote 5 and operationalFootnote 6 constraints exist as a matter of fact, they must never be accepted as justifications for inaction or as excuses for ineffective action. The focus instead should be to consider practical actions or objective measures that can be pursued systematically and in parallel with broader political discussions to try to address these obvious gaps in effectiveness of the CoE human rights protection system.
To avoid lapsing into arbitrariness, a rule-of-law-based approach must prevail. This is closely related to the notion of ordre public, discussed in Chapter 3. Initiatives must explicitly serve the object and purpose of the ECHR and be deployed in accordance with the Statute of the CoE and the mandate of its respective institutions. Only if such measures accord with the core rule of law principles and are pragmatic, repeatable, and faithful to the principle of multi-actor consent will they have the potential to be meaningful. Similarly, one must avoid propagating the current two-tier system where Member States seem to accept a diminished level of ambition regarding the effectiveness of the CoE system in areas of conflict and contestation. A new impetus for coherence and maximal effectiveness across the system is required. What we currently observe in Europe’s current grey zones is an acute two-tier scenario, whereby the ECHR is normally applicable but in reality, the system neither has sufficient knowledge of the state of human rights on the ground nor does it have any coherent strategy to reconcile this long-standing situation. There are compelling reasons for the CoE to pursue a more active and judicious rapprochement with regard to human rights protection in areas of conflict and contestation. The status quo represents a fundamental threat to the system and is actively eroding its legitimacy by allowing millions of ECHR rights holders to fall outside its scope of protection. There is also a significant cost to non-engagement in terms of the rights of individuals in the regions in question as well as to the integrity of the Convention system.
6.2 The Case for a Judicious Rapprochement
Most so-called grey zones have existed in a relative international vacuum with inadequate access to international human rights machinery for anything up to five decades, more than half of the lifetime of the CoE itself.Footnote 7 The CoE has explicitly and repeatedly recognised the challenge including as far back as January 2004 in the non-binding CM Declaration on the Protection of human rights during armed conflict, internal disturbances and tensions. At the Ministerial meeting in Helsinki during Finland’s Chairmanship of the CM for example, Member States underlined that they remained ‘concerned by confrontations and unresolved conflicts that affect certain parts of the continent’ and committed to ‘working together for reconciliation and political solutions in conformity with the norms and principles of international law’.Footnote 8 It has taken important political,Footnote 9 judicialFootnote 10 and non-judicialFootnote 11 initiatives in an attempt to address the situation of human rights over the years, but it has faced numerous ‘practical and political’Footnote 12 problems in the course of these efforts.
The CoE Secretary General’s report on the ‘State of democracy, human rights and the rule of law in Europe’ in 2014 noted that in order for the CoE to make a contribution to the improvement of the situation of people living in unresolved conflict zones ‘it is essential that its human rights instruments and monitoring mechanisms can be deployed and operate without any hindrance’. The report identifies physical access to such territories and the possibility to establish and maintain contacts with people living in these areas as well as with civil society organisations working there as two major challenges.Footnote 13 However, in April 2019, outgoing Secretary General (SG) of the CoE, Thorbjørn Jagland, formally acknowledged that grey zones represent a significant challenge to the CoE and suggested it was a ‘phenomenon [which] should be addressed definitively’, given that efforts to date had proven largely ineffective.Footnote 14 That Jagland took such as decisive step to highlight grey zones in his swansong report to the CM speaks to the importance, sensitivity and intractable nature of the challenge. The CM Copenhagen Declaration, which was issued during the same Ministerial meeting as Jagland’s Report, also acknowledged that more needed to be done, including to:
explor[e] ways to handle more effectively cases related to inter-State disputes, as well as individual applications arising out of situations of inter-State conflict, without thereby limiting the jurisdiction of the Court, taking into consideration the specific features of these categories of cases inter alia regarding the establishment of facts.Footnote 15
The Declaration draws attention to the issues of jurisdiction and evidentiary basis, two key indicators of applicability and extent of application of the ECHR, respectively. The Committee identifies the importance of not limiting jurisdiction while at the same time acknowledges that evidence may be limited due to the dearth of human rights monitoring in these areas. Early in 2020, in a reply to Parliamentary Assembly recommendations regarding grey zones, the CM pointed in particular to the role played by the Court,Footnote 16 the SG, and the Commissioner for Human Rights as well as the relevant CoE monitoring bodies.Footnote 17 The Committee reiterated that:
Council of Europe’s treaties are applicable on the whole territory of each Contracting Party. In particular, all Council of Europe 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 to all individuals in accordance with Article 1 of the Convention.Footnote 18
Building on this point, the Committee emphasised the importance of full and free access by monitoring mechanisms to all parts of all Member States.Footnote 19 It is notable that the reply did not refer to ‘jurisdiction’ but ‘territory’, which in itself gives rise to a certain asymmetry with the case-law of the ECtHR, but does serve to underscore the importance of intra-territorial effectiveness, the central concern of this monograph. Notably, the reply was not adopted by consensus, which implies disagreement on its content.Footnote 20 This may also be part of the reason why the reply failed to refer to the collective responsibility of the CM, nor did it engage with the notion of a presumption of access by monitoring bodies as proposed by the Parliamentary Assembly of the Council of Europe (PACE). Moreover, it avoided addressing the specific cases raised in the PACE Resolution.Footnote 21 This brings us back to the heart of the problem, that such contexts are deeply political. Beyond declaratory exercises, which have been plentiful and relatively consistent, the CM has been perpetually unwilling to take more decisive action due to an apparent concern for the potential negative consequences any initiative may generate, either multilaterally or bilaterally. Instead, the CM has effectively bound itself into a ‘holding pattern’, repeatedly acknowledging the challenge of unresolved conflicts, but stopping short of taking discernible action or initiative to remedy these situations. In light of the experience of the invasion of Ukraine by Russia in February 2022, this is no longer a tenable position. Statutory and treaty obligations provide a strong normative and operational basis for action, but this requires consideration of what rapprochement might mean for the CoE in practical terms.
The second critical aspect to consider in establishing the case for rapprochement is the importance to rights-holders and functional institutions. DSG Berge, who has shown commendable leadership on these matters, stressed that ‘we must start to put citizens’ rights above politics and conflict, as the Convention always intended – and ensure that these rights are a reality for people who live in these territories’.Footnote 22 To do this requires the building of trust as well as knowledge and skills related to CoE standards, none of which are mutually exclusive.Footnote 23 CoE human rights, rule of law and democracy standards can help to forge the basis of a genuine, pluralist democracy for the benefit of all people, and can serve as a framework for approaches to transitional justice. It boasts standards, systems and supports covering a vast range of public policy areas, and its model has proven an effective catalyst for change.Footnote 24 Based on this unique acquis, a comprehensive rapprochement has the potential to deliver important benefits to local populations, including normative approximation and the enhancement of key tenets of democracy such as civil society and institutions for the protection and promotion of human rights.Footnote 25 Its tools can support public administration reform that can generate financial and temporal efficiencies for authorities.Footnote 26 These supports can simultaneously improve the living conditions of those under the care of the local authorities and help create better working conditions for those exercising public functions.Footnote 27 The supports can also help to protect some of the most vulnerable in society, including women and children in certain circumstances.Footnote 28 Such supports can, and must, be practical, reform-orientated and apolitical in nature. If local populations including civil society or independent institutions seek such support, I submit that the ordre public imperative requires the CoE system to respond meaningfully, as it routinely does under its well-established Neighbourhood Policy with third states.Footnote 29 That imperative does not, however, suggest an imposition of CoE standards on any authorities that are unwilling to engage as this would not be in keeping with the CoE as a voluntary project designed to foster unity of purpose based on common values. In many cases, there is a pre-existing desire to enhance cooperation with the CoE, and in these contexts in particular, the organisation must be proactive in enhancing cooperation support.
There are also costs associated with not pursuing rapprochement. Earlier I considered how exclusion and isolation run contrary to object and purpose of the ECHR and its function as an instrument of European ordre public.Footnote 30 Tacit acceptance of the existence of such territories and maintenance of the status quo may also have serious practical consequences. Rights-holders living in these regions are not only at risk of alienation but potentially risk suffering from impunity. It is difficult to compare the performance of de facto states as regards rights protection with other states for the very reason that they are beyond the scope of most monitoring exercises, but it is reasonable to make certain assumptions regarding the cost of disengagement. Berkes claims that ‘[a]reas outside the effective control of the territorial State are often characterised by massive human rights violations’.Footnote 31 Sadly this is obvious in areas of Ukraine currently under the occupation of the Russian Federation.Footnote 32 Areas bereft of engagement are also at risk of either turning inward, investing in developing alternative allegiances contrary to the unity of the CoE area, or in the worst-case risk becoming fertile ground for ethno-nationalism, intolerance, discrimination or repression of minority communities. The lack of international scrutiny can create ripe conditions for organised crime to flourish, which has been suggested to be a contributory factor for the continuance of the political status quo in grey zones.Footnote 33
On the other hand, it is also important not to generalise by considering all de facto states as lawless, authoritarian or repressive places.Footnote 34 Just as there is a vast spectrum of compliance and non-compliance amongst CoE Member States, a similar spectrum can be expected amongst areas of conflict and contestation.Footnote 35 There is little credible evidence to suggest that de facto states necessarily lack the capacity, interest or willingness to provide human rights protection; indeed, Leontiev suggests exactly the opposite might be true in some cases:
[I]t can be argued that unrecognised entities, especially those seeking the recognition or approval of the international community, might have strong incentives to align themselves with existing international human rights standards.Footnote 36
In Kosovo for instance, as discussed in Chapter 5, international human rights standards are given direct effect by the Constitution and benefit from a deep level of embeddedness. Indeed, Kosovo continues to seek alignment with CoE standards as demonstrated by a recent constitutional amendment to give effect to the CoE Istanbul Convention.Footnote 37 Even if this is not the case, the risk to the integrity of the entire Convention system is significant if grey zones are permitted to exist without any meaningful engagement, in perpetuity. Rapprochement is therefore not only necessary; it is urgent. However, it is neither risk-free nor is it guaranteed to succeed. The stakes are high when it comes to grey zones, and the risk of activities being misused for purposes other than for which they were intended is significant. DSG Berge noted that the CoE’s ‘presence in such situations should never be seen as any form of endorsement of any parties, in particular the de facto authorities, but simply the implementation of the Convention to help verify the human rights situation – and, in some cases, give a voice to the voiceless’.Footnote 38
There are practical and operational hurdles to overcome, as well as the obvious political challenges of establishing cooperation, but these challenges should not impede the ambition to ensure the maximum effectiveness of the system throughout the CoE area. Moreover, such an approach is consistent with the January 2004 CM Declaration that ‘all Council of Europe bodies and institutions active in the field of human rights – each within its own sphere of responsibility and limits of its competence – [should] pay special attention to human rights concerns in the context of all existing and newly emerging situations of tension or conflict’.Footnote 39 It is also consistent with its commitment, under the same declaration, ‘to keep under review the question of further Council of Europe action in this area’.Footnote 40 The CoE is not a fair-weather vessel, designed only for calm waters. It is the bastion of human rights in Europe, whose raison d’etre is to deal with the critical human rights challenges facing European society. If it is unwilling or unable to define a constructive role when it comes to such situations, it risks failing on its central purpose.
6.2.1 Rapprochement Based on Standards Rather than Status
It is in the nature of political conflicts that parties have an interest to propagate a narrative sympathetic to their own positions. If the origin of conflict is political, one might suggest that the solution does not lie in the action or inaction of the CoE but rather in the political realities on the ground and the efforts of others involved in peacebuilding or mediation efforts such as the UN Security Council and the Organization for Security and Co-operation in Europe (OSCE). However, such a deferential view of the role of Europe’s principal human rights institution seems to emphasise the state-centric nature of international law and realpolitik, to the detriment of ordre public. Such positions also fail to recognise the significant potential for the CoE in restoring democratic security. In one of his seminal works, From Apology to Utopia, Koskenniemi discusses the challenge of reconciling sovereignty as a matter of law rather than merely a matter of fact, suggesting that ‘the system should be such as to guarantee the normativity and concreteness of the law without derogating from sovereign equality’, but concedes that this seems impossible.Footnote 41 When it comes to developing a judicious rapprochement with grey zones, this is not an irreconcilable dilemma. There is no contradiction in seeking maximal effectiveness of the CoE system without taking a partisan political position on the status of a polity. Impartiality or status neutrality is an important trust-building tool. Status neutrality means just that: neither status positive, nor status negative. It is a critical enabler of standards-based action, which must be the overarching concern for the CoE.
The key challenges facing the CoE are broadly speaking the potential for persistent objection by parties to these conflicts as well as a lack of clarity regarding what could be done to practically improve the human rights situation on the ground.
Objections can be overt and active, or covert and insidious. They can be legitimate, based on a well-founded concern for the territorial integrity of a Member State, or they may be somewhat more vexatious. In all cases, persistent objection has the effect of establishing grey zones as permanent exceptions in the international order. Objection can take several forms including objecting on formal interaction, cooperation or association with a de facto authority,Footnote 42 to the language used to refer to the entity,Footnote 43 or even to the form or process used to engage with them. Consensus is unlikely to be secured, hence statements related to affected regions by the CM tend to be loose or declaratory in nature. When grey zones are discussed, these discussions tend to be framed by those with a strong vested interest in the context, with other parties taking a muted, non-committal view, or expressing no view at all. The lack of meaningful engagement by the CM when faced with the situation of ethnic cleansing in Nagorno-Karabakh in autumn 2023 was illustrative of the prevailing apathy of the CM. This apparent lack of active interest and engagement by neutral parties has the effect of further amplifying the voices of objectors.
Objectors typically adopt three principal approaches. First, they present the sovereignty argument, that the matters at stake are of an internal or domestic character and therefore not a matter of concern to third parties.Footnote 44 This argument, which may be legitimate, has serious implications in terms of securing the consent necessary to access these territories as well as for the subsequent publication of reports. Secondly, they advance the legitimisation argument to oppose engagement,Footnote 45 suggesting that any engagement directly with de facto authorities or other actors in a given polity might legitimise those authorities and so risk undermining the territorial integrity and sovereign equality of the territorial state party, which would contradict the fundamental norms and principles of international law.Footnote 46 And thirdly, they raise the capacity argument, that a conflict is subject to ongoing processes under the remit of another competent international organisation such as the UN, OSCE or EU; hence, the CoE would be committing mission-overreach and potentially undermining those processes, were it to engage.Footnote 47 None of these arguments stand up to scrutiny.
The public order imperative and collective responsibility of Member States for the ECHR discussed in Chapter 3 addresses the sovereignty argument. Grey zones are characterised by territorial dispute that typically involves more than one Member State, or a third party.Footnote 48 In any situation where the integrity of the CoE system is at stake, the public order imperative implies that a plurality of responsibility should automatically be engaged. Territorial states must be reassured on the one hand that engagement is focussed on the rights of inhabitants and not political status but also reminded that access by CoE to all territories is presumed and can only be rebutted based on exceptional circumstances on the other.
The legitimisation argument is premised on a fundamental misrepresentation of the CoE’s international legal capacity. Although the organisation is a subject of international law, established by Statute and the CM enjoys international law-making capacities, the CoE does not possess the requisite legal capacity to recognise states.Footnote 49 The only conclusive means of recognising the sovereign agency of a polity is through the established process of state recognition under general international law. The CoE merely responds, by automatic function of international law, to the will of the CM subject to established rules of procedures on the conduct of its business.Footnote 50 The CoE SG and Secretariat serve the purposes of the Statute, and cannot accidentally, implicitly or otherwise recognise states.Footnote 51 Furthermore, as the International Court of Justice (ICJ) has pointed out in the Namibia Advisory Opinion, ‘[i]n general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international cooperation’.Footnote 52 In any event, engagement with authorities exercising functional responsibilities for human rights must not be conflated with recognitionFootnote 53 as to do so risks weaponising the CoE system for political purposes. Although the CM is a political entity, the integrity of the CoE system requires depoliticisation and deweaponisation of the ECHR and Court processes to the greatest extent possible. As Wight noted, ‘the health of the political realm is maintained by conscientious objection to the political’.Footnote 54 Similarly, Koskenniemi described the fight for international law as a fight against politics, where politics is understood as being about furthering subjective desires that leads to an international anarchy.Footnote 55 It may be somewhat exaggerated to suggest that protection blind spots represent anarchy, but they certainly represent a significant threat to the system’s integrity.
Furthermore, the practice of the Court and key CoE institutional actors increasingly recognises the critical role of non-state actors, including civil society, human rights defenders and independent institutions. The capacity argument is linked to the role and function of the CoE. As described in Chapter 2, the CoE has an acquis complemented by a unique arsenal of tools at its disposal, which improve the protection of human rights, safeguard the rule of law and enhance democracy. These are ends in themselves for the CoE,Footnote 56 but they are also means to prevent conflicts and to mitigate against the adverse effects of conflicts when they occur. Fundamental freedoms are often the first casualties of conflict, yet they represent the key concern of people suffering from conflict or isolation. It has been said that the CoE has a democratic security mandate that is complementary to broader international peace and security efforts,Footnote 57 and may be considered an ‘essential factor’ for sustainable peace.Footnote 58 The institutional agreements with the OSCE and EU both refer to this complementarity.Footnote 59 To execute this function effectively, there is a need for the CoE not to close itself off from engagement with grey zones as proponents of the mandate fallacy suggest. On the contrary, it has a statutory duty to seek out opportunities to deploy its assets judiciously, coherently and in a politically impartial manner, to the maximum benefit of the local populations. Again, this is less about state-building, and instead a matter of democratic security and European public order.
Even if the will to take steps to close the monitoring and engagement gap exists, there are significant challenges to adjusting the status quo, as discussed earlier in Chapter 2 with reference to two ad hoc human rights monitoring exercises pursued in relation to Crimea and Abkhazia by Ambassador Gérard Stoudmann and former CoE Commissioner for Human Rights, Thomas Hammarberg, respectively. A number of conclusions can be drawn from the Stoudmann and Hammarberg experiences. The first is that both acknowledge that the human rights situation of the domestic populations is adversely affected by the extraordinary political context. Secondly, they conclude that more can legitimately be done by the CoE and other international actors to advance human rights in these territories but emphasise that engagement must be apolitical and objective due to the political complexity of engagement. Thirdly, they accept that the voices of local populations, functional authorities and local civil society are essential to the fulfilment of human rights in these territories. Not to engage with these actors would render rapprochement futile and ineffectual. Finally, both conclude that it must be a priority to enable regular human rights monitoring to resume. The fact that neither report was formally endorsed by the CM speaks to the importance of pursuing structured and repeatable processes, based on the rule of law and underpinned by certain principles.
6.3 Principles Underpinning Rapprochement
CoE Member States noted their concern about unresolved conflicts in the 2005 Warsaw Declaration, which established the current strategic direction for the organisation.Footnote 60 They committed to ‘[working] together for reconciliation and political solutions in conformity with the norms and principles of international law’.Footnote 61 They further committed to pursuing concerted and effective responses, and to enhance the role of the CoE as an effective mechanism of pan-European cooperation in all relevant fields. In light of the clear political direction of the organisation, I submit that the purpose of rapprochement is not conflict resolution per se, rather it is to maximise the effectiveness of the CoE in practice and to preserve its integrity in light of its object and purpose and European ordre public. The form of rapprochement should follow these functions.
In their seminal report on five unresolved separatist conflicts of the post-Soviet space in Eastern Europe, De Waal and von Twickel observe that this question of how to engage is at the heart of the apparent international apathy around engagement with grey zones:
There is a consensus that international engagement with most of these territories … is needed, partly to prevent the people who live there from being completely isolated from the rest of the world, partly so as to keep open channels of communication that are needed for eventual conflict resolution. However, there is no consensus on what form that engagement can take.Footnote 62
A reason for a lack of consensus may be partly linked to the dominance of bilateral discourse in addition to the sovereignty argument, the legitimacy argument and the capacity argument, discussed earlier. These conflicts are rarely considered a matter of collective concern. An element of fatigue may also have set in,Footnote 63 or diminished interest due to the convergence of many pressing issues which dominate speaking time and political capital in intergovernmental organisations.Footnote 64 De Waal and von Twickel call ‘European policymakers [to] act collectively and forcefully, when it comes to projecting soft powers not only into Ukraine, Moldova and Georgia, but also into Armenia, Azerbaijan and Russia’.Footnote 65 The same advice seems appropriate in the context of other grey zones – for example, vis-à-vis Serbia and Turkey. However, one of the key challenges in seeking to develop a new formula for engagement is the heterogeneity of areas of conflict and contestation. As the CoE’s Director General of Human Rights and Rule of Law has said, grey zones are very diverse, and that there is no ‘one-size-fits-all’.Footnote 66 When faced with such variety and the impossibility to predict all challenges and opportunities that might lie ahead, there is a need to establish principles underpinning engagement. I would suggest that normativity, objectivity and effectiveness could be instructive foundational principles in this regard, all of which are inextricably linked to the rule of law.Footnote 67 They also address the principal objections outlined in the preceding section.Footnote 68
Normativity, which is closely related to Universality, is the CoE’s legitimate licence for engagement. It is the bedrock of European ordre public. Engagement must be anchored in the Statute and guided by norms and standards of the CoE in particular the ECHR and any interventions must be designed to realise those standards to the maximum extent possible. The CoE has a legitimate, even irrefutable, interest to secure rights are not just theoretical or illusory. No one should be deprived of protection under the ECHR, and other relevant CoE treaties and concern for rights-holders must be primordial. States are bound to secure to everyone within their jurisdiction ECHR rights and freedoms, which includes, both in principle and in law, areas subject to conflict or contestation. No European territory should be deprived of the standards, monitoring and cooperation supports of the CoE, and proactive efforts should be taken to address any and all operational limitations. Recognising normativity as a foundational principle for engagement clarifies that the situation of human rights in practice is the overriding interest. Instead of ‘standards before status’,Footnote 69 the CoE should perhaps be focussed on ‘standards beyond stasis’.
Objectivity is the second essential principle and precondition for engagement, as it ensures a focus on standards whilst securing multi-stakeholder consent. At a time when multilateralism is facing significant challenges, the ECHR is at risk of misuse for ulterior or nefarious purposes. Any formula for engagement must mitigate against the risk of the ECHR being politically weaponised by maintaining the highest level of objectivity and impartiality. The use of the term ‘status neutrality’ is less accurate and not always politically palatable even if the term has enabled engagement elsewhere.Footnote 70 Whereas status neutrality is by definition neither positive nor negative, the balance of opinion favoured a cautious approach.Footnote 71 From a normative standpoint, the standards applicable and applied in practice must be more important than the status of a polity. For the removal of doubt, therefore, objectivity as opposed to neutrality is an essential principle.
Finally, effectiveness should be the third key principle as all actions should be designed to deliver meaningful outcomes. Effectiveness is both an interpretive principle, guiding the ECtHR and a stand-alone norm of international law governing relationships between Member States, between Member States and individuals coming within their jurisdictions, and between the CoE’s statutory bodies. The principle is inextricably linked to the object and purpose of the CoE and so encompasses a system perspective, to ensure rights protections are practical and effective. Effectiveness must guide all actions, reactions and interventions pertaining to the protection of human rights in areas of conflict and contestation, and their impact should be assessed on the basis of effectiveness. The effectiveness criterion requires the discussion to move from the rhetorical to the practical. In elaborating objective measures, the CoE must determine what the overall objective of a specific intervention is and how it might generate or enhance positive human rights outcomes for the local population. It is closely linked to the principle of pacta sunt servanda, which underpins the CoE Statute, the ECHR and all treaty obligations within the CoE system. It requires that all obligations, rights and duties must be fulfilled in good faith by all subjects of international law. This principle, based on Article 26 of the Vienna Convention on the Law of Treaties, is rooted in the consent of states to establish and empower the CoE and to be bound by the provisions of relevant treaties. The effective functioning of the system, and in particular its functioning in areas of conflict or contestation, is entirely dependent on the pacta sunt servanda principle. Other factors such as necessity, urgency and multi-actor consent should also guide engagement.
6.4 Components of Judicious Rapprochement
The Court has emphasised that the ECHR should be normally applicable throughout the CoE area and has called for efforts to reintegrate any regions which exceptionally fall outside the effective control of a territorial Member State in accordance with the rule of law. As the CM supports this approach, it also underpins Secretariat action.Footnote 72 The challenge of grey zones is well-understood, and former SG acknowledged they were a ‘phenomenon [which] should be addressed definitively’, given that efforts to date had proven largely ineffective.Footnote 73 Despite this, an expert report on the longer-term future of the Convention system did not engage with the issue in any significant way,Footnote 74 and there has been no concerted effort to examine other opportunities to render CoE activities more effective in the affected regions. The Steering Committee for Human Rights (CDDH) referred to ‘large-scale violations’ as one of two main challenges that deserved further consideration but noted that consideration would not take place in the context of the present report. This may have been a missed opportunity, given the report involved experts from all Member States over a period of two years and was established precisely to tackle the most challenging aspects of ensuring the effectiveness of the ECHR. Nevertheless, the report contained several interesting elements that are material for this book. It emphasised that the challenge was one to be addressed by the CoE as a whole;Footnote 75 which speaks to a central argument of this book regarding the CoE system. Secondly, it distinguished between the legal aspects of the problem and the political aspects but noted the Convention system relies on ‘collective responsibility’.Footnote 76 Finally, the report refers to the ‘potential contribution’Footnote 77 of the CM, the SG, the PACE and the Commissioner for Human Rights. This speaks to the complementarity of various mechanisms which was discussed earlier. An inclusive approach that draws on the existing institutional tools of the CoE to the maximum extent possible and avoids the development of supplementary or parallel infrastructure seem to be an appropriate starting point. On this basis, let us now consider some of the possible components of a judicious rapprochement which are primarily non-judicial in nature.
6.4.1 Reconciling the Public Order Imperative with Political Considerations
A meaningful framework for rapprochement requires political will at the highest level and an associated coherent high-level political vision with practical measures that are predictable and repeatable in accordance with core principles of the rule of law.Footnote 78 The most sustainable way to deliver on the collective responsibility of all Member States is for this vision to be articulated as part of a new political mandate for the CoE, in the form of a Declaration by Heads of State and Government. This would elevate otherwise cursory political statements and would provide a solid basis for meaningful follow-up action. The CM is the only entity competent to shape the highest-level strategic direction of the organisation and to ensure meaningful coordination across CoE entities.Footnote 79 Sustainable solutions therefore depend, overwhelmingly, on the political direction of the CM. Sadly, this did not happen on occasion of the Reykjavik Summit in 2023.
To date, the CoE has held four summits of heads of state and government. The first took place in Vienna in 1993, which confirmed the Council’s policy of openness and enlargement and also launched the reform of the ECHR to make it more effective.Footnote 80 The second was held in Strasbourg in 1997 to give new impetus to human rights protection; the summit decided to appoint a CoE Human Rights Commissioner.Footnote 81 The third Summit, was held in Warsaw in May 2005.Footnote 82 Leaders of the then forty-six Member States redefined the organisation’s priorities by adopting a declaration and an action plan aimed to strengthen the Council’s key mission to safeguard and promote human rights, democracy and the rule of law. On 7 November 2022, the CM agreed that a 4th Summit of Heads of State and Government of the CoE would be held under the Icelandic Presidency of the CM in Reykjavik, Iceland in 2023.Footnote 83 The decision to convene a Summit followed a report presented by a High-Level Reflection Group in October 2022.Footnote 84 The Fourth Summit Declaration, was a unique opportunity to include an explicit reference to the public order imperative to engage with grey zones and related issues such as the non-execution of Court judgments, the need to guarantee access by monitoring and advisory mechanisms and the challenge of practising shared responsibility would have further empowered the organisation to finally take decisive action.
A new political mandate could have provided a much stronger basis for a rapprochement, but the Reykjavik Summit failed to do so. Nevertheless, there are still many avenues to achieve progress. The CM has already called on all CoE bodies and institutions active in the field of human rights – each within its own sphere of responsibility and limits of its competence – to pay special attention to human rights concerns in the context of all existing and newly emerging situations of tension or conflict in Europe.Footnote 85 The CoE and its mandated institutions enjoy statutory, treaty-based and prerogative authority to pursue a wide variety of practical/objective measures which, subject to the consent of relevant authorities, go beyond the prevailing minimalist approach. There is no sound legal argument prohibiting the CoE from developing initiatives vis-à-vis grey zones in the absence of an explicit political mandate. The consistent political messaging from the CM has been on ensuring the effectiveness and shared responsibility of the Member States. Objections of a political nature would have no basis in law.
Enhancing the focus on grey zones could equally take the form of a priority under a Presidency of the CM. The Presidency of Ireland in 2022 was the first to include a specific focus on how to ensure human rights protections for individuals in areas of protracted conflict or contested sovereignty across the continent.Footnote 86 Chairmanships rotate every six months, and each has considerable liberty in setting the short-term political priorities of the organisation. A Member State, or preferably a series of successive Chairmanships, perceived as being neutral to the issues at stake in grey zones would be well placed to establish a coherent focus on these issues in their Chairmanship programmes. Emphasising the risk these long-standing situations present to the Convention system is a necessary precondition for action.
The Commissioner for Human Rights is uniquely placed with its independent mandate to actively engage with areas of conflict and contestation. The PACE also has an important role to play in enhancing the political attention on the situation of human rights in grey zones. It has the potential to debate the issues at stake either as topical or as urgent debates, as well as through formal and informal parliamentary dialogue. It has the potential – albeit subject to limitations – to support de facto parliaments through capacity building or informal exchanges. It may also opt for a more systematic effort such as by establishing a PACE Rapporteur under the Committee on Legal Affairs and Human RightsFootnote 87 on the matter upon reference from the Bureau.Footnote 88 Engaging a Rapporteur with a mandate to prepare a report based on in situ research, hearings and exchanges of views with experts would build on previous progressive efforts in this regard.Footnote 89 The work culminates in resolutions and recommendations of the Parliamentary Assembly, which are addressed to Member States and other CoE bodies. In addition, the PACE could serve as a platform for engagement by non-judicial de facto actors, for instance, Ombudsman Institutions or similar, through the ‘Side-Event’ system. Other CoE institutions and actors including the Conference of INGOs could also meaningfully contribute to awareness of and action related to the situation of human rights in areas of conflict and contestation. Collectively, such efforts would serve to maintain a political focus on the objective human rights concerns and provide a stronger framework for the SG to act within the scope of the SG’s prerogatives.
6.4.2 Realising the ‘Normative Will’ of the Secretary General
The SG is a statutory institution of the CoE that serves both the CM and the PACE. S/he is entrusted with the responsibility of meeting the aim for which the CoE was established in May 1949, namely to achieve greater unity among its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress. The SG, supported by a Deputy SG, is responsible for the work of the SecretariatFootnote 90 and delegates instructions to parts of the Secretariat in order to deliver on the direction of the Member States. However, there are clear limits to Member State influence and direction over the SG and the Deputy SG. Nothing should run contrary to the object and purpose of the Statute. It might appear that prima facie that there is a tension between the SG’s independence and the requirement for accountability; however, s/he makes a solemn declaration affirming that his/her:
duty is to the CoE and that he will perform his duties conscientiously, conscientiously, uninfluenced by any national considerations, and that he will not seek or receive instructions in connexion with the performance of his duties from any government or any authority external to the Council.Footnote 91
The SG should, therefore, be seen as the operational guardian of the CoE Statute. The apparent tension is resolved when the relevant elements of the Statute are read in context:
[e]very member shall respect the exclusively international character of the responsibilities of the Secretary General and the staff of the Secretariat and not seek to influence them in the discharge of their responsibilities.Footnote 92
The ‘responsibilities’ are those that are underpinned by the Statute and those linked to the effectiveness of the ECHR, given that it is the cornerstone of the organisation. The ‘exclusively international character’ speaks to the SG’s function as independent from any national authority. The role of the SG is not only to operationalise the political priorities of the CM but also to shape and delimit those priorities in line with the Statute. S/he has an obligation to engage in a continuous dialogue with the Member States but not to be submissive to them, in particular when it comes to upholding the Statute. The challenge in striking an appropriate balance between being servile and being assertive should not be underestimated, nor should the risks of losing the trust of the Member States. When faced with highly contentious matters that divide the Member States, the tendency to err on the side of caution may be understandable, but this does not mean it is always appropriate.
An alternative option for the CM would be to establish a formal review process by instructing the SG to consider the situation of human rights protection in grey zones, in line with the procedures for verifying compliance with commitments set out in the 1994 DeclarationFootnote 93 and the procedure established in 1995, which sought ‘greater efficacity in its procedures with a view to ensuring compliance with commitments’,Footnote 94 ‘based on the principles of non-discrimination and co-operation’,Footnote 95 and established that at least three Ministers’ Deputies meetings would be dedicated to the issue per year.Footnote 96 This procedure finds its legal basis in Article 52 of the ECHR, which empowers the SG to pursue Inquiries into the manner in which Member States internal law ensures the effective implementation of the Convention.Footnote 97 Through this provision, the SG may seize the CM of a matter of human rights concern.Footnote 98 It has been engaged on several occasions – notably during the crisis in the Chechen Republic of the Russian Federation, which had many of the attributes of other grey zones, in particular severely diminished access by international monitoring bodies.Footnote 99 In that case, the SG considered the Russian Federation had failed in its legal obligations as a Contracting State under Article 52 of the ECHR.Footnote 100 The CM subsequently established a process by which the SG would regularly submit information regarding the situation of democracy, human rights and the rule of law in the Chechen Republic and those reports would be transmitted to the PACE for information.Footnote 101 The Article 52 procedure deserves further consideration, though recent experience of its use suggests it is perceived as a punitive measure that can further alienate relevant parties to a conflict.Footnote 102 As such, an alternative means of engagement may be preferable.
6.4.3 Special Representative of the Secretary General for Unresolved Conflicts
It has become apparent in recent years that any suggestion of extending the scope of obligations on Member States or developing new standards is a sensitive matter. In such a context, the priority should not be the proliferation of new institutions, rather the reinforcement of those which currently exist within the CoE system. Indeed, I would strongly argue in favour of reviewing the practice of monitoring mechanisms and if possible, reinforcing existing institutions such as the CoE Commissioner for Human Rights and the Committee for the Prevention of Torture (CPT) to engage more actively, consistently and effectively with grey zones. However, if current structures prove not to be fit for purpose or would benefit from a strategic intervention at the level of the secretariat, then such measures must be given consideration.
One such possibility open to the SG is the creation of a specially appointed official within the Secretariat reporting directly to the SG on the situation of human rights in grey zones: a Special Representative of the Secretary General (SRSG) for Unresolved Conflict Zones, or similar. Chair of the High-Level Reflection Group, Mary Robinson, has suggested this could be an office under the control of the SG, the Assembly or directly under the CM, and its task would be to keep the institutions ‘au fait’ with human rights issues in these areas.Footnote 103 The mandate of this SRSG would be strictly apolitical and would report with autonomy to the SG and consequently the CM on his/her factual findings. S/he would be empowered to maintain ongoing contact with the relevant de jure and de facto authorities as well as independent institutions, civil society and others on the ground. This model has been used in relation to the situation of refugees and migration, and has proven to be valuable in terms of the provision of facts as well as maintaining the collective political focus.Footnote 104 The establishment of such a position would represent clear follow-up to a well-recognised challenge facing the ECHR system. However, whether that office would face a similar fate to the Stoudmann process discussed earlier would depend to a large extent on the support of the Member States and the good offices of the SG.Footnote 105 The Stoudmann experience is a precedent in terms of SG-led initiatives in grey zones but even in the absence of such a precedent, Article 36 (e) and (f) empower the SG to take initiatives which serve the Statute. Initiatives necessitate a delicate balancing of the SG prerogatives vis-à-vis his/her responsibilities to the CM. An effective system requires a relationship of trust, even a symbiosis, between the three statutory bodies: CM, the Parliamentary Assembly and the Secretariat. The challenges lie in striking a judicious balance.Footnote 106
In their regular engagement with Member States, the SG/DSG can shape the tone and tenor of discussions regarding engagement with grey zones and emphasise that the CoE’s interest is that of the rights of individuals, which should normally be protected under the ECHR. Palmer describes the CM’s ‘will’ as the sum of those of the participating governments,Footnote 107 but the SG should be understood as having a separate standard-based will, inextricably linked to his/her duty to the object and purpose of the CoE, beyond any national or external interests. The SG, as guardian of the Statute, has the authority and capacity to exercise this standards-based, or normative, will.Footnote 108 The SG is best placed to lead initiatives in relation to areas of conflict and contestation, given the political difficulties arising for individual Member States to do so. S/he can initiate and maintain apolitical contacts, encourage the development of cooperation projects and empower the secretariat to implement them. S/he can allocate resources and provide good offices to enable the maximum engagement of monitoring and advisory mechanisms.Footnote 109 S/he can, indeed s/he must, maintain a continuous dialogue on these matters with the Chairmanship of the CM, as well as the CM itself. One of the key initiatives taken by an SG in recent years was to delineate sovereign capacity from functional capacity in the case of Kosovo. This represents an important conceptual departure from historical practice and a valuable precedent upon which to build.
6.4.4 Extending Engagement on the Basis of ‘Functional Capacity’
The notion that extraterritorial jurisdiction can be established by way of functional relationship to the acts on the ground has been discussed by others.Footnote 110 Problems have also been identified in these discussions, such as the risk that a functional approach to establishing jurisdiction might undermine the clarity of the law, or that obligations might become variable if the scope of the obligation is contingent on capacity. Another criticism that has been raised is that the state’s capacity to act is difficult to assess and will vary widely depending on the circumstances. Conversely, a states capacity to act may actually be greater than it realises or is willing to pursue for policy reasons. Shany argues for a functional approach to extraterritorial applicability of International Human Rights Law (IHRL) in accordance with two key notions: firstly, that the intensity of power relations – factual relations of power entailing direct, significant and foreseeable potential impact – should result in the application of IHRL obligations; or, alternatively, special legal relations – relations of power that put the state in a unique legal position to afford IHRL protection would also justify the imposition of extraterritorial obligations. Shany suggests that states should be required to protect IHRL in all situations that they have the capacity to do so. Although I would be somewhat sceptical of this position due to the challenges it raises in terms of state responsibility, these discussions are useful as part of a broader reflection on the scope of international human rights obligations beyond territorial borders. It is important to distinguish such considerations from the understanding of ‘functional capacity’ I am advancing here in terms of the exercise of public policy functions relevant to the protection, promotion and fulfilment of human rights by de facto authorities. Recognising functional capacities for our purposes is an exercise in due diligence in light of the public order imperative, to ensure meaningful engagement with affected, or potentially affected, duty-bearers. In other words, this is a question of acknowledging the role of certain de facto actors – however limited – in fulfilling human rights responsibilities as opposed to human rights duties, which are binding in international law, as described by Samantha Besson.Footnote 111 From the perspective of the SG, this is neither a question of attributing violations or determining title, it is an exercise in pragmatism, to ensure that cooperation in the area of human rights can be facilitated, albeit in a status-neutral manner. The SG’s role in advancing the debate on what is possible, both as a matter of law and in practice, is critical.
The CoE is the first intergovernmental organisation to take formal steps in this direction. In 2012, the SG informed the CM of his intention to engage directly with the Kosovo authorities in a status-neutral manner but based on their ‘functional capacity’. The SG made clear that the purpose was to facilitate cooperation, including the delivery of human rights, rule of law and democracy supports to the Kosovo authorities, and was without prejudice to Member States positions on status. This built upon a practice of engagement with the de facto authorities, which had evolved since 1999 when the CoE first established a presence on the ground, as elaborated in Chapter 5. Moreover, monitoring bodies including the Commissioner for Human Rights, the CPT and Framework Convention for the Protection of National Minorities (FCNM) systematically engaged with the de facto authorities in the conduct of their monitoring and dialogue activities. This initiative was particular to Kosovo in the sense that the SG maintained commitment to United Nations Security Council Resolution 1244 (UNSCR 1244) but took the pragmatic step to recognise the diminishing role of international actors and overwhelming authority of the Kosovo government and its agents. This allowed the SG the opportunity to establish a coordination mechanism directly with the Kosovo authorities. Although the existence of UNSCR 1244 is a significant distinguishing factor, it is reasonable to reflect further on whether a status-neutral, functional approach similar to this could not be deployed in other grey zones. The experience of the operation of the ‘functional capacity’ principle deserves further analysis, but it does seem to present a significant opportunity for technical cooperation and capacity building to function in grey zones.
The other aspect of functional capacity to consider is whether de facto authorities or civil society can contribute outwardly to other CoE processes such as the execution of judgments. Since the expulsion of the Russian Federation from the CoE, one can see much greater focus on the potential roles of civil society. In December 2022, the CM adopted a Strategy paper regarding the supervision of the execution of cases pending against the Russian Federation in which it opened the door to enhance collaboration with relevant NGOs in relation to the situation in the Russian Federation, as well as any relevant NGOs from the Republic of Moldova dealing with Convention complaints from people living in the Transnistrian region of the Republic of Moldova as a means of assisting it in its function under Article 46 § 2 of the Convention with respect to cases against Russia.Footnote 112
6.4.5 Acknowledging the Contribution of Non-state Actors in Ensuring Effectiveness of the ECHR
Earlier it was noted that the case-law of the ECtHR is all but inexecutable in cases related to grey zones. This situation is doing considerable damage to the legitimacy of the ECHR control mechanism. This does not mean that more cannot be done to improve the execution rate, or the effectiveness of the supervision process itself. Others have reflected on the effectiveness of the ECHR from the perspective of reforming the Convention system,Footnote 113 supervising the execution of judgments,Footnote 114 and the issue of non-execution through the use of Article 46.4 Infringement Procedures,Footnote 115 which I will not recount here. Instead, I will focus on other areas of immediate opportunity under the existing legal framework and relevant rules of procedure. One of the most important of these relates to the potential role for non-state actorsFootnote 116 in helping to ensure the effectiveness of the ECHR, including within the process of supervising the execution of judgments, as well as in terms of de facto approximation to ECHR standards in contested territories. Whilst this is potentially a matter of significant political sensitivity, from an effectiveness perspective it deserves further consideration.
Under Article 46.2 of the ECHR, the Committee of Minister’s Deputies has a formal role in supervising the Execution of Judgments of the ECtHR. This implementation dialogue is the primary means by which states can exert political and diplomatic pressure to ensure that judgments are effectively executed. The CoE stresses that the political nature of this process is a strength, rather than a weakness even if there are structural and resource limitations associated with the process.Footnote 117 At a recent count, some 10,000 cases are pending execution, with only a fraction related to so-called grey zones.Footnote 118 Even if the vast majority of cases are executed without delay, non-implementation remains a systemic problem particularly when it comes to complex cases, and cases related to grey zones are disproportionately classified as ‘Complex problems’. Of the cases that reveal structural or repetitive human rights problems, so-called leading cases, considered by the ECtHR in the last ten years, 43 per cent remain pending full implementation.Footnote 119 To tackle this, Member States are exploring all means including increasingly focussing on the ‘obligation of means’ incumbent upon relevant actors with a ‘decisive influence’ to ensure the implementation of judgments.
A major shortcoming facing the Court is the dearth of up-to-date factual information about the circumstances on the ground. Evidence is the critical measure of the effectiveness of actions taken by the respondent government. Respondent governments are charged with preparing action plans and progress reports for the Committee of Ministers Execution of Judgments Supervision Meetings (known as the CMDH) in cases subject to supervision. Without reliable evidence, the CM is left to take respondent state positions at face value or speculate about the reality on the ground. However, in light of Rule 9 of the rules of Supervision procedure, the CM may:
consider any communication from an international intergovernmental organisation or its bodies or agencies whose aims and activities include the protection or the promotion of human rights, as defined in the Universal Declaration of Human Rights, with regard to the issues relating to the execution of judgments under Article 46, paragraph 2, of the Convention which fall within their competence.Footnote 120
or
any communication from an institution or body allowed, whether as a matter of right or upon special invitation from the Court, to intervene in the procedure before the Court, with regard to the execution under Article 46, paragraph 2, of the Convention of the judgment either in all cases (in respect of the CoE Commissioner for Human Rights) or in all those concerned by the Court’s authorisation (in respect of any other institution or body);Footnote 121
In all cases, any submission made under Rule 9 ‘shall’ be brought to the attention of the CM, though these may not necessarily be made public.Footnote 122 This opens up a legitimate avenue for fact-based, human rights information to be submitted directly to the CM by civil society actors, human rights defenders, international human rights organisations, or independent human rights institutions with a specific expertise in a disputed territory. The veracity and credibility of this information must still be assessed by the Committee, but the existence of it helps to inform debates. It is an opportunity for non-state actors to directly contribute context to those discussions, including by proposing requests for the CM to formally convey to the respondent state regarding disputable facts. The CM increasingly considers Rule 9 submissions, as these submissions significantly enhance the quality and robustness of debates and help to fill information gaps.Footnote 123 The information gathered to form a Rule 9 submission could be considered by other actors in the System too, such as the Commissioner for Human Rights, the SG and others. The opportunity for this practice to be reinforced is significant, particularly in relation to grey zones where general information about the state of human rights is deeply unsatisfactory and progress in terms of execution is invariably slow. Academia and independent media can also play a constructive role in this regard.
If a Member State continuously refuses to abide by a final judgment in a case to which it is a party, the CM may refer to the ECtHR the question of whether that Party has failed to fulfil its obligations under Article 46.4 of the Convention. The first time this infringement procedure was used was in the case of Mammadov v. Azerbaijan in 2017, where the Court ruled (again) against Azerbaijan.Footnote 124 In a sense, this provision was designed not to be used. Its purpose was for truly exceptional cases, and not for routine use. The Mammadov experience highlighted significant weaknesses with the approach, in particular when deployed against what de Londras and Dzehtsiarou describe as ‘dilatory non-executors’. The risk of ineffectiveness of the infringement procedure in cases related to grey zones, given their complexity and politicised nature, may dissuade the CM from engaging Article 46.4 in the near future. This reinforces the importance ensuring evidence-based discussions about the execution of judgments, rather than pursuing circular legal processes such as that provided for under Article 46.4.
It would be remiss to discuss the role of non-state actors in the execution of judgments without reflecting on whether such actors can be said to bear responsibilities in terms of the implementation of judgments in their own right.Footnote 125 There is nothing in human rights theory that precludes the imposition of legal obligations on actors other than states,Footnote 126 indeed many non-state actors are bound by IHRL, including for instance trans-national corporations in some instances. However, as de facto non-state territorial polities are not party to the ECHR, and a territorial or jurisdictional dispute invariably creates a cleavage between how those authorities perceive their role to be and the way in which that is perceived by the territorial state party to the Convention, it would represent a significant leap of legal activism to consider non-state actors as being bound under Article 46 of the ECHR to execute the judgments. Under IHRL, the Court adopts a unitary approach to state authorities and a working assumption of normal applicability throughout a territory based on internationally recognised borders. It would be far-fetched to consider that this generates a responsibility on de facto authorities to execute judgments, and it would be inconceivable to expect de facto authorities to assume responsibilities owed to the territorial or patron state, and even less so to accept to play a formal role in the execution process. That is not to suggest they do not or cannot play an important informal, or functional role. In fact, judicial practice increasingly recognises the role of non-state actors and the authorities of de facto states. The Court has recognised in practice that engagement with such actors on a non-judicial level has the potential to generate positive outcomes. The experience of the Immovable Property Commission (IPC) in Northern Cyprus is a good example of this, whereby the Court recognised that certain Northern Cypriot institutions (as opposed to Turkish institutions exercising effective control) may represent domestic remedies, and the CM accepts that the IPC has a role to play in the execution of the Demopoulos and other judgments.Footnote 127 This pragmatic approach seems to be in keeping with the object and purpose of the Convention. To not acknowledge the potential contribution of de facto authorities not only diminishes the possibility of progress, but it potentially further disenfranchises those actors and potentially widens the human rights protection gap. There seems to be merit then, in recognising the role of non-state actors as part of a non-judicial due diligence exercise, based on the principles outlined earlier. CoE structures should pursue contacts on the basis of their functional responsibilities, expertise or capacity to effect change but always in a strictly objective, apolitical manner.
Engagement with non-state actors, including civil society and independent institutions, is arguably more readily achievable in non-judicial, dialogue-based processes. The SG, Commissioner for Human Rights, PACE and others may pursue such engagement with non-state actors. Empowering civil society and other non-state actors such as Ombudsman Institutions or similar can represent a distinct opportunity to meaningfully build the capacities of these actors based on the CoE acquis, thus potentially strengthening the application of the Convention in practice. This is perhaps the area of greatest opportunity for the CoE and links directly to our earlier discussion regarding the prerogative authority of the SG to develop cooperation programmes in grey zones.
As part of the efforts to reform the ECHR for its longer-term future and to safeguard its credibility, the CM also committed to exploring a range of options to ensure the efficient supervision of the execution of judgments including:
consider[ing] thematic discussions on major issues relating to the execution of a number of judgments, so as to foster an exchange of good practices between States Parties facing similar difficulties.Footnote 128
To date thematic discussions have been restricted to areas of well-established case-law and developed soft law standards, such as on the obligation to investigate violations of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment) by law enforcement officials.Footnote 129 This debate involved experts from many national capitals and was an opportunity to share information and best practices on the implementation of judgments from the ECtHR in these areas. A thematic discussion on the non-execution of judgments could be considered as it would fall within the scope of what was envisaged by the Brussels Declaration, but based on the poor experience of the CMDH over many years in dealing with cases related to grey zones, it may give rise to tension and acrimony, which risks defeating the purpose of the exercise or jeopardising broader efforts. Strategy, coherence and diplomatic tact must guide any initiatives.
6.4.6 Monitoring Activism and Purposeful Substitution
A key challenge as regards human rights protection in grey zones is the lack of reliable information or evidence regarding the situation on the ground. This is due in large part to the lack of regular, unrestricted access by international human rights monitoring mechanisms. Without full access, engagement, and the possibility to exercise free will in terms of the substance of ultimate reports, monitoring mechanisms are fundamentally undermined. These three fundamental aspects of monitoring – unlimited access, free engagement and substantive licence – are interdependent features, and one without the other runs the risk of subjecting a monitoring mechanism to political malapropism.Footnote 130 Any attempt to impede or interfere with the work of an international human rights monitoring mechanism would run contrary to European public order.
The difficulty has several dimensions: legal, political and operational. The legal and political challenges stem from the contested nature of the polity, and the need to secure consent of the territorial state. In most grey zones, there is a dispute over which state possesses title to the territory and which exercises effective control which complicates the issue of consent. De jure, one state’s consent might be required to access a location, whereas de facto a different state might be deemed to exercise effective control of that region, which implies a need for their consent. To complicate matters further, the local authorities, which may or may not consider themselves ‘controlled’ or ‘influenced’ by any third party, will almost certainly consider it has exclusive agency to consent. This gives rise to a significant operational conundrum – for example, for a monitoring body to travel to Crimea, they should seek de jure consent via Kyiv but de facto via Moscow.Footnote 131 This particular situation, which is politically intolerable for Kyiv, is in any event even more complicated now that Russia is no longer a Member State of the CoE. Even if the matter of access was settled, questions around the legal protections afforded to monitors in the conduct of their duties require attention.Footnote 132
The issue of consent is also of fundamental importance. No authority, be it de jure or de facto, should be deprived, in practical terms, of its right to consent. This is without prejudice to the status of the polity which, as discussed earlier, must not be misunderstood as recognition. However, consent should not necessitate a positive expression, rather it should be presumed and rebuttable only with justification conveyed to the SG, or to the Head of the Monitoring body on her/his behalf. In other words, there should be a presumption of consent for monitoring mechanisms of the CoE in accessing grey zones.Footnote 133 States should be presumed to have consented to access any area within the territorial limits of the ECHR. Moreover, monitoring mechanisms should be explicitly entitled to adopt a pragmatic approach to accessing all territories. If a Member State feels it has grounds to withdraw its consent, it must do it explicitly and with clear justification, and it should be for a defined period. General or open-ended rebuttal of consent should not be permissible as a matter of ordre public. If the justificationFootnote 134 for withdrawing consent is deemed unsatisfactory or if no justification has been submitted, the SG should submit the matter in writing to the Chair of the Committee of Ministers for inclusion on the agenda of the CM for urgent debate. This matter should be treated with the highest level of priority by the CM, as it potentially raises questions of good faith and sets a problematic precedent.
Another way to avoid this quagmire was identified in Kosovo, whereby monitoring-like exercises were developed to purposefully substitute official monitoring processes. These ad hoc procedures seek to deliver processes similar to formal monitoring but are adapted to the status-neutral position of the organisation. Monitoring-like processes are an initiative of the Secretariat, which has been communicated to the Member States but not dictated by them. They are based on a recognition of the functional capacity of Kosovo authorities discussed earlier.Footnote 135 The premise behind a recognition of functional as opposed to sovereign capacity was that irrespective of positions on status, the Kosovo authorities, objectively, were the exclusive duty-bearers across vast swathes of public policy. Failing to recognise this functional capacity would simply prevent further cooperation in situ. In these processes, state experts act in their individual capacities to replicate intergovernmental peer review. Modalities similar to those applied by the Group of States Against Corruption (GRECO),Footnote 136 the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL)Footnote 137 and the Group of Experts on Action against Trafficking in Human Beings (GRETA)Footnote 138 have all been carried out in Kosovo with findings subsequently published. These processes have been lauded by the Kosovo authorities as being helpful in approximation of laws, policies and practice to the established best practice in the CoE region. They have operated relatively smoothly without objection from other Member States, which may suggest merit in exploring the wider deployment of this approach in other grey zones. Such arrangements could even be formalised within a sui generis cooperation agreement outlining areas for cooperation in the specific territory in question.
Of course, the distinguishing factor in the Kosovo case is the existence of UNSCR 1244, which acts as political protection for any non-recognising Member State. In other words, non-recognisers feel secure that irrespective of the closeness of collaboration with the Kosovo authorities on a technical level, UNSCR 1244 confirms that Kosovo remains a jurisdiction of Serbia held in abeyance until a final status has been determined. With that insurance in place, the ability of the ECHR system to innovate in its engagement with grey zones has been relatively rigorously tested, which is of value in considering what might be possible elsewhere.
Respondents to interviews carried out as part of this research indicated that the Commissioner for Human Rights of the CoE perhaps represents the best opportunity for engagement with grey zones. The Commissioner is an independent, non-judicial institution, the mandate of which allows considerable flexibility in terms of form, frequency and focus of possible engagement with grey zones.Footnote 139 As outlined in Chapter 2, previous Commissioners have sought engagement with all grey zones and have established dialogue in several cases.Footnote 140 Only in Kosovo has the Commissioner enjoyed full, effectively unrestricted access.Footnote 141 Dialogue is assured through regular on-site visits.Footnote 142 In the context of a visit to Kosovo in 2009, the Commissioner stressed the importance of avoiding human rights grey zones by asserting ‘that individuals living in Kosovo should not be held hostage to the lack of international consensus on [its] status’.Footnote 143 The principal avenues in which the Commissioner can engage on human rights in grey zones are through in situ visits, opinion pieces and possible third-party interventions before the ECtHR. Third-party interventions are provided for by Article 36 §3 of the ECHR and since the entry into force of Protocol No. 14 in 2010 the Commissioner had the right to intervene at his/her own initiative. If the Commissioner was to increase focus on human rights in grey zones including an expanded dialogue with non-state actors, they may be better equipped to intervene in future Chamber or Grand Chamber hearings on cases relevant to grey zones.
Another significant practical opportunity open to the CoE could be to draw the CoE’s established but under-developed Confidence Building Measures (CBM) programme within the remit of the Commissioner as provided for by Resolution 99 (50). The CBM Programmes offers support to countries that were recently involved in conflicts and are undertaking the process of re-establishing their political, educational, cultural and social institutions. This methodology constitutes a practical tool to consolidate stability and facilitate political dialogue in post- or frozen-conflict areas by identifying strategic areas of mutual interest between parties to conflicts, which can allow for engagement, trust building as well as bilateral cooperation. The programme has operated across numerous post-conflict zones, including extensively in Abkhazia, Transnistria and to a lesser extent in Kosovo. To be an effective tool, the CBM Programme could benefit from being strengthened and expanded in terms of political and financial support, ideally within the mandate of the Commissioner for Human Rights. At present, the CBM Programme exists within the Directorate of Political Affairs and External Relations, which is not ideal if the SG wishes to pursue apolitical engagement. A better option would be to give normative protection and independence to the CBM Programme. The programme presents a significant opportunity to build on the experience garnered to date and to enhance its approach by acting as a conduit for the engagement of other specialised sections of the CoE in grey zones. Highly practical initiatives such as the training of lawyers, judges, prosecutors and police, collaboration with Ombudsperson Institutions, civil society or youth/community trust-building activities all could be pursued within the CBM programme in a manner that is apolitical and serves to increase the effectiveness of the ECHR. The informal contacts developed not only allow for confidence to be built between parties to the conflict, but equally, and perhaps more significantly, between the de facto authorities and the CoE.
6.4.7 The Question of Status
Judicious rapprochement may be triggered at any point in a conflict life-cycle but is essential when a territorial dispute becomes entrenched. Entrenchment of a conflict could become evident by virtue of a Court pronouncement similar to those discussed in Chapter 3, where there is a mismatch between a de jure and de facto duty-bearer. It could also be demonstrated if a monitoring mechanism is repeatedly prevented from operating freely and effectively and without a rational explanation to the CM. Other cases are possible too and the SG, in exercising his/her statutory function, may also exercise discretion in determining whether judicious rapprochement would be appropriate in a given case.
Judicious rapprochement, as I have presented it, is a process of seeking to systematise ad hoc engagement under a rule of law framework in order to make it more coherent, predictable and effective. Practicing engagement in this way can help to normalise a relationship with the jurisdiction, which may have been semi-detached or entirely isolated from the CoE system for a considerable length of time. It is not, however, a substitute for routine engagement under the CoE’s standard practice of engagement with Member States. It should be understood as being exceptional, not generating any new or future commitments, and it should be time-bound. It is, therefore, not a sustainable model of engagement; it is an extraordinary suite of measures designed to maximise engagement and thereby avoid further isolation or deterioration of human rights in a given jurisdiction. Such contexts are highly politically sensitive and CoE action must not worsen an already frought political climate. Therefore, any action must be carefully considered and calibrated to each specific context. A one-size fits all approach is not appropriate.
On the assumption that a desire to deepen the relationship with the CoE exists on the part of the de facto authorities, reintegration into mainstream forms of cooperation, as an integral part of the territorial state or in extremely rare situations as a Member State of the CoE in its own right, appear to be the only durable solutions. These may seem to be unviable possibilities based on the discussion hitherto, but in all cases they are legally plausible. The rights-holders in grey zones are entitled to aspire to regain or assume their place within the European family, and the CoE should do everything possible to avoid leaving people behind.
The aim of the CoE is ‘to achieve a greater unity between its members’.Footnote 144 Over time this unity was expressed in the form of a common European legal space, linked by shared values and an aspiration to approximate standards in line with the ECHR. Membership of the CoE, without contestation, is the most sustainable remedy for the many operational challenges discussed in this book. With forty-six Member States up from an initial ten,Footnote 145 the CoE has seen its membership increase by almost 400 per cent. But has it peaked, or is there room for more? Unlike the EU, which categorises states as members, candidates, potential candidates and others, the CoE’s territorial limits are presumed rather than being explicitly defined. It is not immediately clear, either by statute or by political affirmation what should or could be the precise scope of membership of the CoE, and as a corollary, what the territorial scope of the ECHR could be.
Neither the CoE Statute nor the ECHR establishes strict geographical frontiers; instead, they refer to ‘European States’Footnote 146 and ‘European Countries’.Footnote 147 This approach assumes a common understanding of ‘Europe’, which is left open to a degree of interpretation, or even evolution with the passage of time. Writing about the enlargement of the CoE in the 1990s after the accession of the Russian Federation, former SG, Daniel Tarschys suggested that ‘[i]n terms of European geography and twentieth century history … the decision to invite Russia to become a member … calls for some special explanations’.Footnote 148 The Statute also provides for associate membership in special circumstances as a reduced form of representation in the organisation for non-Member States. This may have been envisaged as a stepping-stone towards full membership, but it was never used as such, due to the fact that a similar level of political support would be required from the CM for associate membership as for full membership. A prospective member may see little value in seeking a semi-detached relationship with the organisation. Instead, most would-be Member States have opted for the European Cultural Convention as a first step to membership.
The Cultural Convention provides a preambular reference to ‘members’ and ‘other European States’, the latter meaning non-member European states. A non-member European state may request accession to the Convention, but such a request can only be granted ‘by a unanimous vote’ of the CM.Footnote 149 This would seem to be a major obstacle for grey zones. However, in practice, unanimous voting in the CM would be better described as unanimous consent as it requires the unanimous vote of the Deputies casting a vote – therefore, not necessarily all members – and a majority of those entitled to vote.Footnote 150 In any event, the voting provisions of the European Cultural Convention have been superseded by the practice of the CM since the expansion of the organisation in the early 1990s. A qualified majority is applied to specific decisions, such as on the admission of new members which require two-thirds of members present and voting.Footnote 151 In practice, all applications to join the European Cultural Convention since 1992 have been decided unanimously, with all members present and voting. For the purposes of this book, the Cultural Convention is significant as it has become the traditional entry point for non-Member States to test and develop contact with the CoE and its Member States. Of the new Member States acceding to the ECHR since 1989, all have ratified the European Cultural Convention prior to their accession to the CoE. This is not a formal requirement, but it can be considered a well-established practice. None of the de facto states that are considered by this research have applied to accede to the European Cultural Convention, though Kosovo has expressed interest informally.
A theoretical pathway to engagement with the CoE for non-Member States unfortunately tells us nothing more about the limits of Europe. It was not until the landmark 1993 Vienna Declaration, when CoE Member States confirmed their policy of openness to extend the European human rights system to ‘all the countries of Central and Eastern Europe that opt for democracy’.Footnote 152 Later that year, the CM resolved ‘to contribute towards the control of respect for human rights in European non-Member States’.Footnote 153 These declarations paved the way for the 1994 PACE Recommendation, which provided that membership of the CoE was ‘in principle open only to states whose national territory lies wholly or partly in Europe’.Footnote 154 Noting that the boundaries of Europe have not yet been comprehensively defined under international law and therefore are ‘difficult to determine’,Footnote 155 the Recommendation suggested the CoE be guided by the ‘generally accepted geographical limits of Europe’.Footnote 156 These ‘generally accepted’ limits are roughly aligned to Eratosthenes’ map from the period 190 BC and are referred to in the travaux préparatoires of Recommendation 1247 as the entire land territory of Europe from the Atlantic Ocean to the Ural Mountains, inclusive. This reflects a similar reference in the Conference on Security and Cooperation in Europe (CSCE) Treaty on Conventional Armed Forces in Europe.Footnote 157 I will refer to this delineation as the Ural Formula.
Based on the Ural Formula, PACE Recommendation 1247 clarified that ‘the republics of the former Socialist Federal Republic of Yugoslavia – Montenegro and Serbia’, ‘the Principality of Andorra’, ‘Armenia, Azerbaijan and Georgia’Footnote 158 should be eligible to apply for membership. Logically, were the listed polities to reach a political agreement on territorial adjustment, dissolution, secession or otherwise, any successor state would be similarly eligible to apply for membership. Oddly, under the Ural Formula, some constituent Republics of the Soviet Union would be considered to be European, for instance Azerbaijan, whilst others would not, such as Kazakhstan, despite the fact that Russia’s territory (hence, the CoE’s legal area prior to 2022) stretches some 4,000 km eastward beyond Kazakhstan’s most easterly point. This was nevertheless generally accepted, aided perhaps by the fact that none of the states east of the Urals have up to now expressed any desire to join the CoE.Footnote 159 Although the Arbitration Commission of the Conference on Yugoslavia addressed and shaped many major legal questions regarding the dissolution of the former Yugoslavia, which form a critical part of international law’s understanding of these matters, the Ural Formula provides the theoretical perspective for membership for all de facto states, which currently exist in the CoE area even if membership in reality would be a matter of significant contestation and, with the clear exception of Kosovo, would seem generally undesirable. In its Opinion, the Political Affairs Committee of the PACE in 1994 also noted, though, that ‘[t]he geographical boundaries of Europe may change in the future. They may expand or they may contract again, not as a result of violent conflicts but of cultural developments. The CoE should be able to take account of this’.Footnote 160 In interviews carried out in the preparation of this book, without exception, respondents accepted that the Ural Formula represented their understanding of the outer territorial limits of the CoE region and that it was a satisfactory measure of the CoE’s maximum territorial scope in that regard.
Recommendation 1247, although non-binding as a matter of law, is instructive as a matter of political narrative within the CoE. It is relevant for the purposes of this book for a number of reasons. Firstly, it provides a soft law basis for the Ural Formula, which has informally guided the practice of the organisation for the past thirty years and seems highly unlikely to change in the future.Footnote 161 Secondly, it tells us that potential candidate Member States are those polities that are situated within Europe’s outer limits. Finally, it implicitly recognises the potential for further self-determination in Europe. It notes that ‘[e]ven after internationally recognised declarations of sovereignty, any non-European parts of Member States which break away from the latter should only be able to apply to participate as observers in the Parliamentary Assembly’s work’.Footnote 162 This implies that a recognised break-away entity may, at least in principle, be entitled to participate as a full member of the PACE whereas their non-European counterpart should never enjoy this privilege. In 1999, the CM issued a declaration on the Kosovo crisis in which it states in unambiguous terms the hope that ‘all countries in the region [will] fulfil the conditions to become members of the Organisation’.Footnote 163
Ultimately, territorial conflicts are deleterious in terms of human rights protection. In the absence of durable solutions, the effectiveness of the ECHR is necessarily limited in grey zones. This should not limit the normative ambition of the organisation, guided by the public order imperative provided by the ECHR and the Statute. Even if the intensity of engagement with grey zones is not equivalent to that of engagement with Member States, judicious rapprochement should be pursued as a structured pathway to normalisation. Shany’s argument that we must not accept the inability to protect all individuals as a justification for not protecting any individuals seems to be a valid rationale for pursuing judicious rapprochement.Footnote 164 If the CoE is to realise its desire to be ‘an effective mechanism of pan-European cooperation in all relevant fields’, it has an opportunity to transform its well-established aspirations to avoid human rights vacuums into concrete measures such as these, which would contribute to satisfying the ordre public imperative established by the ECHR.
6.5 Conclusion
This chapter has attempted to highlight the inadequacy of the current framework for engagement on human rights issues in areas of conflict and contestation and makes the case for more judicious action and innovation by the CoE based on the organisation’s object and purpose and the legitimate legal bases underpinning such action. The role of Member States is decisive, and progress can only be achieved if Member States show the necessary, values-based leadership to enable action by other statutory and non-statutory actors. This leadership is most important in situations which seem most sensitive or intractable. Accepting this fact, however, in no way diminishes the agency of the SG in exercising her/his duty to the Statute. This agency, or ‘normative will’, affords the Secretariat a margin of manoeuvre to take initiatives based on principles including normativity, objectivity and effectiveness. The SG, through strategic decisions and good offices, can have a decisive influence over the quality and intensity of focus on the human rights issues associated with so-called grey zones. S/he can help to overcome the seemingly indomitable momentum of inertia and inaction, though clearly this requires significant tact, skill and sensitivity. There is, however, a risk that s/he may be explicitly prevented from doing so by the CM, though this would almost certainly run contrary to its collective responsibility for European public order.
Implicit in the discussion in this chapter has been a recognition that no two contexts are identical, and so any follow-up must be done based on an appraisal of the actual facts on the ground. In light of that, several ideas were advanced as to how the CoE might practically give effect to any public order obligation to maximise the effectiveness of CoE in areas of conflict and contestation. The situation deserves a much broader and deeper institutional review by the SG, who is best placed to assess the strengths and weaknesses of the organisation’s capacities and practice.
