Territorial disputes are a constant feature of international relations. They range from the banal, such as the dispute between France and Italy over which exercises jurisdiction over the summit of Mt Blanc,Footnote ¹ to the caustic, as seen in the Russian Federation’s illegal annexation of Crimea in 2014 and full-scale invasion of Ukraine since February 2022.Footnote ² From dissolution and secession to occupation and annexation, territorial disputes are by their nature hostile interactions involving two or more polities. Often these conflicts result in violence or armed conflict, which can sometimes prove to be efficient vectors of change in territorial arrangementsFootnote ³ but take an enormous toll on human rights and usually lead to lengthy periods of instability. This monograph is concerned with the impact of situations of unresolved conflict and contestation on the effectiveness of Europe’s human rights protection architecture within the framework of the Council of Europe (CoE).

1.1 Context and Principal Argument

Conflicts are rarely accidents of circumstance; instead, they tend to have deep political and historical roots. Many European conflicts have been inspired by ethno-nationalistic interests, irredentism, imperialist or neo-colonial ideologies, or are linked to the pursuit of self-determination. Some other jurisdictional challenges have emerged as a means of seeking to ‘remedy’ legacy repression in a particular region.Footnote ⁴ Irrespective of its nature, parties to conflict will inevitably seek to justify their positions based on what they consider to be their legitimate interests. Territorial disputes represent the quintessential zero-sum game; one side’s loss of territory is the other side’s gain.Footnote ⁵

Under Article 2 of the Charter of the United Nations, all states must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations (UN), and to settle their international disputes by peaceful means.Footnote ⁶ Any attempt to change established territorial borders in the absence of consent represents a serious breach of international legal obligations arising from peremptory norms of general international law (jus cogens) and so is met with the ire of the international community.Footnote ⁷ Yet history shows that conflict, like borders, ebbs and flows, and peace and stability must never be taken for granted.

There are several current examples of conflict and contestation in the CoE area that are experiencing some form of territorial dispute or other form of political disharmony between de jure authorities enjoying sovereign title under general international law and de facto authorities exercising functional, politico-legal capacities on the ground.Footnote ⁸ These include Abkhazia and South Ossetia (Georgia), Transnistria (Moldova), Northern Cyprus (Cyprus), Crimea and other currently occupied territories of Ukraine.Footnote ⁹ Nagorno-Karabakh (Azerbaijan) is also relevant, though all de facto state institutions were dissolved as of 1 January 2024. Kosovo, which declared independence in 2008 but is still subject to United Nations Security Council Resolution 1244, is also relevant to this discussion, though it is a distinct, sui generis case.Footnote ¹⁰ A conservative estimate of people living in these regions is in the order of 10 million at present,Footnote ¹¹ though other cases will almost certainly emerge over time. These regions are marked by significant heterogeneity in terms of geography, history, culture, language, politics and law, but they are all situated within the CoE area, which is why they are pertinent to this study. Their diversity is matched only by their complexity, so it is important to emphasise that one must avoid the fallacy of generalisation, which can lead to flawed analysis and the emergence of false equivalences. However, they share similar challenges in mobilising the CoE human rights protection architecture.

Conflict and contestation have serious consequences for human rights, the rule of law and democracy as well as for regional stability and the rules-based international order. Russia’s aggression in Ukraine is a vivid example that in an increasingly interdependent international society, conflicts also have a deleterious effect on global security, including food security.Footnote ¹² The need for systematic and effective engagement with situations of conflict and contestation by multilateral organisations seems rather obvious and uncontroversial. Yet, practice differs. Member States of the CoE committed to enhancing the organisation’s unique role as ‘an effective framework for pan-European co-operation’,Footnote ¹³ but they have struggled for decades to reconcile the aspiration of achieving ‘greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage’Footnote ¹⁴ with the reality of the existence of areas of conflict and contestation that directly impede the effectiveness of the CoE’s human rights protection system, principally the European Convention on Human Rights (hereafter ECHR or ‘the Convention’). Human rights are a universalist endeavour, and as Judge Giovanni Bonello noted in his landmark Concurring (but substantially dissenting) Opinion in the Al-Skeini case,Footnote ¹⁵ when one reflects on the notions of universal and effective observance of fundamental human rights in the context of the ECHR, ‘universal’ hardly suggests an observance parcelled off by territory on the checkerboard of geography.Footnote ¹⁶ This is the central concern of this monograph.

When Member States adopted the Warsaw Declaration at the organisation’s Third Summit in 2005 they noted that

It went on to express determination to:

One of the many ways in which Europe has changed since 2005 is that conflicts that seemed temporary now appear semi-permanent, and new, dangerous territorial conflicts have emerged, such as the war of aggression on Ukraine.Footnote ¹⁹ Serious international disputes tend to be protracted and contentious, especially when they involve title to territory and when a conflict is left to simmer or stagnate over prolonged periods of time; positions can become entrenched and parties can lose the willingness or the ability to reach mutually acceptable, long-term and sustainable solutions.

One can observe a direct causal link between the existence of conflict and the effectiveness of the CoE. In circumstances of occupation,Footnote ²⁰ it is generally accepted under international law that an occupying power has an obligation to respect international humanitarian law and international human rights law to which the occupying state is a party to that state’s actions in any occupied territory. Where there is contention between the polity exercising jurisdiction de jure and that exercising jurisdiction de facto, conflict-affected regions can find themselves in a political or legal limbo, with some form of indeterminate or suspended status.Footnote ²¹ International law might formally understand a territory to be part of one jurisdiction, but the reality may be that it is under the effective control or decisive influence of another. Such polities often reject the authority of the territorial state, the borders of which are internationally recognised on the one hand and yet they are not recognised as sovereign and independent states in their own right on the other. This can give rise to a ‘grey zone’, whereby there is ambiguity surrounding the status of the polity, the nature of the conflict and the scope and nature of any international obligations owed by the parties, which in turn can generate uncertainty about the applicable law. This is perhaps the more traditional understanding of a legal grey zone.Footnote ²² Kleczkowska observes that instead of being focussed on solving the hostile tensions between states and preventing further aggravation of the situation, the international community becomes entangled in debates as to the applicable law and the credibility of legal arguments presented by the parties.Footnote ²³ The concern of this monograph, however, is more practical in nature. These contested territories, de facto states or ‘grey zones’ often suffer from isolation and exclusion from mainstream diplomatic and multilateral endeavours. Some have consolidated power and functional competencies to the extent that the absence of formal recognition does not necessarily prevent them from being important political actors in their own right. The practical consequence of any contested status is that populations in the affected territory often find themselves largely excluded from the benefits of membership of international society in general, and the international institutional framework in particular, including international human rights protection architecture. This situation gives rise to protection blind spots, in other words, human rights ‘grey zones’.

The basic premise underpinning this monograph is that nowhere in the CoE area should be deprived of full and effective access to Europe’s human rights protection architecture in principle. The lack, limitation or inconsistency of access by human rights monitoring and advisory mechanisms in particular impedes the objective assessment of human rights practice against any applicable legal standards. If monitoring cannot be carried out fully and effectively, other forms of engagement including cooperation and capacity-building support are usually limited or absent. It will be argued that such situations generate a collective ordre public (public order) imperative on Member States and other statutory actors to seek to maximise the effectiveness of the CoE’s human rights system in practice. The book advocates judicious engagement of the CoE’s unique assets and acquis in affected regions, to the maximum extent possible, to support the effective application of standards in practice. To this end, it neither advocates for mandate overreach nor does it call for new conflict-resolution functions for the CoE. Conflict is now a long-term reality for Europe and so the CoE must engage more judiciously and effectively with the human rights situation in such contexts in line with the object and purpose of the organisation and with the tools at its disposal if it is to retain a meaningful role into the future.

1.2 Rationale

For decades, unresolved conflicts and situations of territorial contestation in Europe have received insufficient attention from political leaders, researchers and practitioners alike. The illegal annexation of Crimea by the Russian Federation in 2014,Footnote ²⁴ the conflict in the Karabakh region of Azerbaijan/Nagorno-Karabakh and Russia’s full-scale invasion of Ukraine have exposed the potent human rights risks of situations of conflict and contestation. The CoE is now entering its third major phase of profound change, with the other two being the period after the organisation’s establishment and the period of rapid expansion after the fall of the Berlin Wall. It is an appropriate moment to reflect on the systemic challenges facing the organisation with a view to conclusively engaging with them.

Much scholarly attention in the field of international relations has focussed on so-called frozen conflicts,Footnote ²⁵ a rather unhelpful misnomer that seeks to illustrate the dormancy of situations where final status settlements have been elusive. This is an issue of global relevance, but Europe has been the dominant focus, given the concentration of contested territories and their relationship to the dissolution of former regimes.Footnote ²⁶ Human rights protection in contested territories has received limited attention, and existing scholarship tends to focus on the notion of extraterritorial jurisdiction.Footnote ²⁷ Such discussions are inextricably linked to the concepts of jurisdiction and attribution in the context of Article 1 of the ECHR and tend to be heavily, if not exclusively, focussed on jurisprudence of the European Court of Human Rights (ECtHR), in particular its approach to determining extraterritorial jurisdiction under the ECHR.Footnote ²⁸ All of this establishes an important blueprint for the conceptualisation of human rights in contested territories, but it seems to have created something of a self-perpetuating extraterritoriality echo chamber, largely insulated from the complex dynamics of multilateralism and the interdependent structures of the CoE. Deferring so extensively to the ECtHR has also diminished the impetus for innovation and practical action by Member States and CoE statutory actors. To date, there has been a gap in consideration of the role and functions of the CoE’s broader human rights system in relation to human rights in areas of conflict or contestation. As a consequence, there has not been sufficient consideration of the other non-judicial opportunities available within the CoE system to serve the object and purpose of the organisation and the ECHR in practice. Berke’s work is a clear exception to this as it focusses on international law beyond state territorial control, in which the responsibilities of state and non-state actors are discussed and consideration is given to certain judicial and non-judicial control mechanisms.Footnote ²⁹

The heavy focus on Article 1 jurisprudence is understandable, given that the Court holds, as Mallory notes, ‘the most significant power to control the meaning of the test and [addresses] that meaning towards its many stakeholders’,Footnote ³⁰ or as echoed by Waibel, that it is the one with the formal authority to interpret the law with binding effect.Footnote ³¹ However, the fact that the outcome of a judicial process is a decision, binding under international law,Footnote ³² should not deter a more comprehensive assessment of how rights and obligations might apply in contested European territories. Nor should it exclude a consideration of the capacity of the wider CoE statutory and institutional framework to support the Court’s efforts in maximising the effectiveness of rights protections in these contexts, as well as avoiding vacuums of protection. The prominence of jurisprudence in this area has attracted many to explore this theoretically seductive topic, though the narrow interpretive framework has left little space for innovation or meaningful results as a matter of practice. For this reason in particular, Samantha Besson’s work is important as she defends the integrity of international law but still seeks its reanimation. She suggests that:

As states are the primary human rights duty-bearers under international law, this is an important point to stress.Footnote ³⁴ The human rights duties of territorial states are not replaced by the existence of a de facto authority on the one hand, nor can it be said that de facto authorities can absolve themselves of human rights responsibilities on the other. As Berkes notes, minimum core obligations in international human rights law equally apply to de facto regimes, irrespective of their resources and capabilities.Footnote ³⁵ Additionally, I submit that effectiveness as an outcome measure requires perspective to be maintained between judicial dialectics and practical effectiveness. Besson calls for an enhanced focus on the responsibilities of non-state actors to respect and protect human rights, and in particular of the responsibilities of intergovernmental organisations for facilitating the cooperation for human rights among states other than the state(s) or institution(s) of jurisdiction in any given context. Besson is not arguing for a diminution of the responsibilities of sovereign states under international law by expanding the concept of duty-bearer, on the contrary, she calls for more judicious engagement by states and leveraging of wider resources to effect positive outcomes, including vis-à-vis non-state actors.

My central proposition flows from this such that Member States of the CoE share a collective, ordre public imperative to maximise the effectiveness of CoE human rights standards, the ECHR in particular, in contested and conflict-affected territories. I see merit in reflecting on the distinction between human rights duties, which can only be institutional, and human rights responsibilities, which may be borne by other actors. Clearly, the question of political status and concerns about neutrality and objectivity must be considered carefully and sensitively, but I contend that Member States have a collective duty towards the ECHR rights-holders in affected regions. With effectiveness as an overarching concern, it should be acknowledged that de facto authorities retain certain human rights responsibilities as opposed to duties under international law. A comprehensive analysis of the challenge of effectiveness of international human rights law in areas of protracted conflict and contestation, taking account of the significant actors and processes relevant to human rights standard-setting and verification is evidently warranted.

This book is intended as a first step towards addressing this significant gap in literature from a critical and applied legal perspective. The intention is to shine a light on a real-world problem of human rights protection affecting the lives of millions of Europeans but which has not secured remotely the attention it deserves. It does so in full recognition of the complex, even hostile, political context within which such a discussion necessarily exists. The fact that the issue is inextricably linked to politics does not diminish its relevance as a critical question of international human rights law; on the contrary, it reinforces the need to establish a coherent, objective and effective basis for engagement with this issue of first principles for the CoE.

This book provides a critical socio-legal analysis of the normative, procedural and accountability gaps in the existing European human rights law framework vis-à-vis unresolved conflict zones and contested territories. It addresses the subject from a practical perspective, adopting a whole-of-system approach, which represents a marked departure from existing literature. It does not claim nor does it attempt to present solutions to the deeply divisive questions linked to political contestation; these fundamental tensions, conflicts and imbalances can only be solved through political means. Instead, it acknowledges the limits and opportunities of the CoE and advances proposals that attempt to resituate the discussion within the scope of the object and purpose of the CoE, thus shifting the narrative away from the exclusively political or doctrinal narratives that have proven largely unproductive to a more nuanced and pragmatic formula for the advancement of the object and purpose of the ECHR in the context of grey zones. Simply put, there is a need to avoid monitoring and engagement gaps in the CoE area, and there is now an urgency to establish a judicious rapprochement that can contribute to broader political or peace processes rather than detract from them. The focus is on the CoE and the European human rights system in particular, though the problems of accountability and protection gaps are experienced throughout the world within the UN and other regional systems too. For that reason, the findings here may well have a broader, global relevance, and it would be desirable for further research to be carried out in this area across global or other regional systems. Most importantly though, this monograph seeks to respond to urgent and growing calls from human rights defenders, civil society, Ombudsman institutions and other democratic forces in areas of conflict and contestation that expect more from Europe’s main human rights institution for the ultimate benefit of people over politics.

1.3 Structure

This monograph seeks to establish the extent to which the CoE’s normative framework is applicable in European areas of conflict and contestation according to statutory, treaty-based or other commitments, and whether it can be said that there is a collective responsibility amongst Member States for the effectiveness of Europe’s human rights system in these regions. The CoE’s extensive experience of engagement with Kosovo is used to explore whether the experience of cooperation gained there might be replicable elsewhere. The concept of a judicious rapprochement based on the statutory initiative, or, as it will be described, the ‘normative will’, of the Secretary General is advanced with a view to enhancing the effectiveness of CoE systems and standards without prejudice to positions on political status of the regions in question.

In terms of structure, Chapter 2 establishes a holistic understanding of the CoE in terms of its institutional structure and most relevant institutions. It proposes moving away from a narrow interpretation of the ECHR control mechanism towards a reconceptualisation of the broader ‘CoE system’. The CoE system is a matrix of mutually reinforcing judicial and non-judicial institutions for which Member States have a collective responsibility, rather than a hierarchy of autonomous institutions. The chapter cautions against a disproportionate reliance on the ECtHR and emphasises the critical importance of the complementary functioning of CoE standard-setting, monitoring, advisory, discursive and adjudicatory mechanisms, the outputs of which form part of the CoE acquis. It then sets out a broad typology for operational grey zones, whilst emphasising the many significant distinctions between them. To highlight these distinctions, the book offers a high-level and non-exhaustive context about each of the major areas of conflict and contestation currently observable in the CoE area. For the purposes of the current analysis, the chapter suggests that these various contexts should be primarily understood on the basis of outcome characteristics as opposed to any other comparator, even if some of them do bear certain historical similarities.

Chapter 3 explores key concepts such as the object and purpose of the ECHR, the principles of ordre public and shared – or rather, collective – responsibility and their relevance to ensuring the effectiveness of the ECHR in contested territories. It emphasises that practical effectiveness must be the overarching concern, given that the ECHR is an international law instrument designed for the protection of individual human rights. It proposes that the protection of human rights in grey zones, in particular the limitations in the functioning of the CoE system vis-à-vis these regions, gives rise to an ordre public (public order) imperative shared amongst all Member States.

The focus of Chapter 4 examines the merit of the dominant focus on the judicial response to situations of conflict and contestation, or whether alternative and complementary approaches deserve consideration. To that end, the manner in which the ECtHR has interpreted ‘jurisdiction’ under Article 1 of the ECHR in a representative sample of seminal cases pertaining to grey zones is examined. The intention is to determine the extent to which the Court has considered the ECHR to be applicable in contested territories, under which legal framework and to what general effect. As Tulkens observes, a growing number of cases are calling into question the extraterritorial application of the ECHR, but the instances in which jurisdiction can be established extraterritorially remain exceptional in accordance with the current case-law – ‘[d]es affaires de plus en plus nombreuses mettent en cause l’application extraterritoriale de la Convention qui, comme nous l’avons vu, ne peut intervenir que dans des circonstances exceptionnelles’.Footnote ³⁶ With that in mind, the chapter highlights the inconsistency of Court practice, the manifestly inexecutable nature of many of the cases associated with grey zones and, consequently, the limits of the Court in affecting general or individual justice in practice in these regions. The chapter concludes by noting that effectiveness depends on looking beyond the Court, and this is even more important in a context where several contested territories are now occupied by a non-Member State.

Having established the framework within which the CoE and the Court operate, Chapter 5 examines the legal context and the practical effectiveness of CoE interactions with the central case study, Kosovo. As noted earlier, Kosovo is a sui generis case, distinct from all others. Its relevance is based on it to having faced similar engagement challenges in the past. A unique environment for human rights and multilateral innovation over more than two decades has enabled significant progress in terms of its relationship with the international community and international human rights mechanisms. The legal and constitutional frameworks that established ECHR rights in Kosovo also reinforced innovations on the part of CoE monitoring and advisory mechanisms. The chapter sets out why UNSCR 1244,Footnote ³⁷ which has been an enabling framework for international human rights activities, must not be seen as a sine qua non for engagement. The experience of the CoE’s non-judicial engagement illustrates some of the pragmatism and creativity that has been possible in interacting with a non-Member State. It also demonstrates the value of the principles of engagement on the basis of functional capacity and monitoring substitution. Although Kosovo is, at the time of writing, a CoE candidate country,Footnote ³⁸ the analysis underlines that political status in the CoE is not necessarily a binary proposition, and in fact a status spectrum exists. The chapter briefly contrasts the experience of the UN human rights system to that of the CoE to highlight several important inconsistencies and concludes with a reflection on how the experience of Kosovo may serve as a partial point of reference for CoE practice vis-à-vis other areas of conflict and contestation in Europe.

In light of the analysis hitherto, Chapter 6 proposes that the CoE pursues a more proactive, judicious, rapprochement with areas of conflict in Europe in line with the object and purpose of the organisation. This rapprochement requires political will but can be substantially shaped by and based on the vision and associated initiatives of the Secretary General. It seeks to reflect on several legal, political or operational activities that might contribute to satisfying the ordre public imperative described in Chapter 3. The objective is to begin to consider practical initiatives that could be pursued in accordance with the Statute to enable progress in an impartial, standards-based manner.

The book concludes with a reflection on the challenge of grey zones as being one of first principles for the CoE which represents a risk to the integrity and long-term future of the organisation. It emphasises that the populations in areas of conflict and contestation are the most vulnerable rights-holders in Europe, yet they are also the most isolated. The CoE must engage with this systematic problem as a matter of urgency and with the decisive attention of Member States, as well as statutory and non-statutory actors.

1.4 Limits and Possible Critiques

This monograph seeks to critically analyse the role and function of the CoE system in relation to human rights protection in areas of conflict and contestation in Europe with a view to contributing to a conspicuous gap in the literature. The research necessarily has several limitations which are important to recognise at the outset. Firstly, the book is focussed on Europe, the CoE human rights framework in particular, though it recognises the relevance of the subject to other regional and universal systems.Footnote ³⁹ This is a phenomenon prevalent on a global level, and so an analysis of regional and universal systems would also be valuable.Footnote ⁴⁰ In a statement to the Human Rights Council in 2016 on the issue of restricted access to certain contested UN territories, the former United Nations High Commissioner for Human Rights Zeid Ra’ad Al Hussein stated the following:

The European system has many unique features, including its approach of standards-setting, monitoring and cooperation, but it is not intended to suggest or infer that the European human rights system is somehow superior to other regional systems. Indeed, a considerable proportion of the book deals with the system’s deficiencies. Nevertheless, the CoE system is an appropriate frame of reference, given its well-developed case-law, its unique place amongst European multilateral institutions and its repertoire of experience right across the European continent. This book may, in that sense, be understood as focussing on the intraterritoriality of human rights obligations, rather than extraterritoriality.

Additionally, it is concerned primarily with the peace-time application of European human rights law as CoE monitoring and advisory mechanisms cannot generally operate or add significant value until the conflict has moved beyond its active phase.Footnote ⁴³ As such, the book does not engage in any significant way with international humanitarian law or the law of occupation per se, even if there are an increasing number of situations in which humanitarian law remains a legitimate and active frame of reference, in conjunction with international human rights law, not least in occupied parts of Ukraine. Second, quite deliberately the Court’s ‘effective control’ doctrine is not scrutinised in a manner that advances any new interpretative reform proposals as to do so may distract from a central aim of this book: to highlight that the ECtHR is limited in its capacity to deliver individual justice in the context of complex and intractable political controversies. Judge Bonello lamented that the ‘relentless search for eminently tangential case-law is as fruitful and fulfilling as trying to solve one crossword puzzle with the clues of another’.Footnote ⁴⁴ A system-wide approach, drawing on the complementarity of functions, is advocated instead. It will be argued that the broader CoE system is not only capable of supporting the object and purpose of the Statute and the ECHR in these contexts; in many instances, the non-judicial institutions of the CoE are far better positioned to affect change.

Third, I do not intend to offer a comprehensive blueprint for what constitutes a ‘grey zone’, as current examples may not necessarily reflect future constellations. In this monograph, I suggest indicators, or outcome characteristics, of grey zones, but I do not seek to prescribe the specific circumstances or ‘triggers’ of collective responsibility. This topic deserves further attention, though one must maintain the perspective of rights-holders and avoid getting tied up in definitional knots. The frame of reference for this monograph is the current situations of conflict and contestation where the CoE’s action and the effectiveness of the ECHR have been stifled in a well-documented manner, including in Parliamentary Assembly of the Council of Europe (PACE) Resolution 2240 (2018). Europe has moved into a post-peace reality. It has not seen the end of hostility, borders will not remain static, and other human rights blind spots will certainly emerge in the future in ways one simply cannot currently predict. What would happen, for instance, if a current Member State of the CoE decided to leave the frame of the ECHR without the popular or legislative consent of one of its devolved jurisdictions? What if a territory of a current Member State seeks to secede?Footnote ⁴⁵ To consider such possibilities is not to countenance them, but the system must try to be prepared and agile even in the face of such uncertainty.

A possible critique of this book could be a suggestion that it contains undercurrents of human rights neo-imperialism. In other words, the work advocates the imposition of a human rights framework on polities that are currently semi-detached or entirely detached from the European human rights normative framework with no desire for alignment. Whilst unlikely to be pervasive, it is a potentially dangerous critique that threatens the credibility of the findings, so requires early rebuttal. Mallory notes that the ‘very nature of human rights is imperialistic – not towards cultural domination and the imposition of external values – but in respect of an appropriate recognition of universality’.Footnote ⁴⁶ I subscribe to this view to the extent that Europe’s human rights system is voluntary and based on the sovereign agency of states. The pursuit of universality is not an abstract notion, rather it seeks to faithfully deliver on states’ own voluntary commitments, no less and no more than they have accepted. The Convention is a constitutional instrument of European public order that does not govern the actions of any states not party to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other states.Footnote ⁴⁷ In one of the more colourful critiques of the international human rights movement, Ignatieff suggests that

He goes on to recognise that ‘[h]uman rights are a political set of claims that seek to enhance and defend the powerless against the powerful’Footnote ⁴⁹ but doubles down on the point that their adoption is not an organic, wilful, democratic pursuit by societies but an imperial proposition.

I would address the suggestion that the book represents a neo-imperialist project in three ways: first, based on the book’s purpose and primary subject; second, as a point of principle and, third, as a matter of law.

First, this is principally a system-focussed project, which seeks to identify opportunities within the scope of the international framework rather than imposing new duties on Member States or on third parties per se. The primary subject of the book is the ECHR normative framework and CoE institutional system, including the collective of Member States, and how that system can reconcile its effectiveness vis-à-vis grey zones. A neo-imperialist project would surely have precisely the opposite focus, concentrating rather on the de facto authorities or their agents, and certainly avoiding any suggestion of collective responsibility.

Second, on a point of principle, this book accepts – indeed, enthusiastically defends – the multilateral human rights framework based on voluntarism, the sovereign equality of states, the rules-based international order and multi-layered consent in addition to the normative validity of the ECHR and the principle of shared responsibility. The strength of the human rights framework lies in the fact that Member States of the CoE and states party to the Convention have freely chosen to delimit their own actions vis-à-vis certain standards for rights-holders within their jurisdiction. Far from diminishing sovereignty, this is the ultimate expression thereof. A neo-imperialist stance that imposes obligations without providing scope for consent, in my view, fundamentally undermines a core principle of the CoE system.

Third, seeking to critically analyse and improve the effectiveness of the ECHR in territorial grey zones is not neo-imperialist as a matter of international or municipal law due to the fact that in all cases discussed in this book, the ECHR is either normally applicable as supported by the interpretative rules provided for by the Vienna Convention on the Law of Treaties (VCLT)Footnote ⁵¹ or is applicable under the laws in force in the affected regions. In all cases, these territories remain within the normal jurisdiction of CoE Member States, even if not de facto. One important caveat to this relates to those territories under occupation of the Russian Federation. These are particularly challenging cases for the CoE, particularly now that Russia is no longer a Member State of the CoE. As noted earlier, ‘the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States’.Footnote ⁵² Whilst Russia can be held accountable for any breaches of the ECHR up to 16 September 2022, it is no longer bound by the Convention after this date. As a result, millions of Europeans are effectively deprived of the protection of the Convention because they are in territories which, although under the sovereignty of CoE Member States – Ukraine, Georgia and the Republic of Moldova in particular – are currently under de facto control of the Russian Federation. The same type of deprivation applies to the other treaties to which the Russian Federation is no longer bound as a result of its expulsion from the CoE. There is no comparable case in CoE history where the authorities explicitly renounced the ECHR or have been expelled, whereas in several instances the ECHR has actually been given a privileged position in the domestic legal order, such as in the primary case study considered by this research – Kosovo.Footnote ⁵³ It can be said that the ECHR continues to be a legitimate source of international law, albeit limited in effectiveness due to circumstances on the ground, in all affected territories. Importantly, the fact that a CoE territory is illegally occupied does not diminish the responsibility on the system to maintain a focus on the human rights of the affected population; on the contrary, it enhances that need but requires leadership, patience and pragmatism. Hence, this book is not about imposing a normative framework or the will of the organisation but rather about putting people first, maximising the opportunities for meaningful engagement that serves both the object and purpose of the Convention and the will of the people residing in affected territories.

Exploring whether this is a project with neo-imperialist trimmings is valid for an additional reason. If engagement opportunities are not well-defined, structured, and predictable, they are likely to be scattered, ad hoc and aleatory. This situation in turn runs the risk of arbitrary or inconsistent responses, which can be used to suit the needs of some but not all.Footnote ⁵⁴ Far from being neo-imperialist, the purpose of this research is precisely to reduce the risk of arbitrariness, which could allow other other potentially nefarious interests to prevail.