By Lucia Leontiev, Ph.D. (Maastricht University and Sant’Anna School of Advanced Studies of Pisa), Post-doctoral Fellow in the Berlin Potsdam Research Group ‘International Rule of Law-Rise or Decline?’

On 16 March 2022, Russia was excluded from the Council of Europe (CoE). Consequently, as of 16 September 2022, Russia ceased to be a contracting party to the European Convention on Human Rights (ECHR) and its judicial mechanism. This will negatively impact the human rights situation of people living in the ‘grey zones’ or as this article calls them, territorial non-state entities (TNSEs). The TNSEs discussed here, i.e. Transnistria, Abkhazia and South Ossetia, and the occupied regions of Ukraine, are located within the internationally recognised boundaries of Moldova, Georgia and Ukraine respectively. It is well established that Russia occupies and exercises effective control over these entities. Until recently, the European Court of Human Rights (ECtHR) was the judicial forum were individuals whose rights were infringed by the de facto authorities could submit individual complaints to seek justice. According to the Strasbourg Court, Russia’s (extraterritorial) jurisdiction and accountability for human rights violations committed in TNSEs is engaged due to its effective control. Now, the Strasbourg Court’s doors are closed for the individual complaints against Russia. Yet, as this post will discuss, people living in the entities under Russia’s effective control can make use of the individual complaints mechanisms available under the United Nations (UN) human rights framework. To rephrase a well-known saying, when one door closes, a few others remain still open. At the same time, one should be aware of the fact that human rights protection à l’onusienne will not offer the same remedies as the judicial body of the CoE had offered.

A Darker Shade of ‘Grey Zones’

Our imaginary of the European map is quite colourful. To show a stronger or lesser commitment to human rights standards states may be painted in different shades of red or blue for instance. An engaged observer would immediately detect within the red contours of the map some grey spots. The grey layout usually indicates on the existence of a problem. In the context of the European human rights protection system, the grey areas suggest exclusion and isolation; in other words, a reality that according to the European Court of Human Rights should be averted in order to avoid a “regrettable vacuum in the Convention system of human rights’ protection.” The ‘grey zones’ appellative was introduced by the Parliamentary Assembly of the Council of Europe (PACE) to refer to the territories of CoE member states “within the mandates of those bodies which are under the control of the facto authorities.” Since these ‘grey zones’ are governed by de facto authorities – which control the territory and population inhabiting that territory, and they seceded from the parent state and seek independence and/or unification with a third state (‘patron state’) which supports their secessionist movement –, I will refer to them as territorial non-state entities (TNSEs).

With Russia’s exit from the CoE system, the shade of grey of the ‘grey zones’ on the European map became darker. Here, I refer to those TNSEs that are under the effective control of the Russian Federation, i.e. Transnistria (seceded from Moldova), Abkhazia and South Ossetia (seceded from Georgia), and the occupied territories of Ukraine. The European Court of Human Rights in its consistent case law (see here, here, and here) decided that Russia has extraterritorial jurisdiction and exercises effective political, military, economic and financial control over these regions. At the same time, the parent state maintains its jurisdiction and has the positive obligation to take all necessary measures to ensure human rights protection on the entire territory under their jurisdiction. The Strasbourg Court therefore developed a type of concurred jurisdiction – of parent and patron states – over TNSEs. Despite the poor execution – Russia was never a frontrunner in executing the ECtHR judgements – the ECtHR offered an effective venue for individuals to make their voice heard. Now the ball is in the yard of the UN and its human rights complaints mechanisms, which so far lacked popularity.

Individual Complaints under United Nations Human Rights Complaints Mechanisms

The general rule is that any individual who claims that their rights under a convention have been violated by a state party to a specific human rights treaty may bring action before the relevant committee if the state in question recognises the competence of the committee to assess such complaints. At UN level, the following human rights treaty bodies can consider such submissions in regard to Russia, i.e. Human Rights Committee (HRC) based on the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), CEDAW based on the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), CAT on the basis of the necessary declaration under Article 22 of the Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (CAT), and CERD based on the necessary declaration under Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD). Russia is a party to the above treaties and also recognised the competence of the respective committees to consider complaints from individuals. This is relevant not only for Russian citizens, but also for the individuals from TNSEs whose rights have been violated as they may use this venue to bring individual complaints/communications against Russia.

The procedural aspects between the four mechanisms are very similar. The committees, bodies of independent experts that monitor the implementation of the respective treaty, will assess the individual complaints. In order to decide on a TNSE-related case against Russia, the human rights committees, similar to the ECtHR, will assess whether Russia has jurisdiction. Jurisdiction is the main criterion for the applicability of international human rights treaties. It is the link between the state and individuals’ human rights, the factual control and authority that a state is exercising over a territory, individual or situation.[1] As the judicial and quasi-judicial bodies stated, this control and authority may be exercised in the extraterritorial domain as well. This is to say that the state must protect and respect its human rights obligations extraterritorially in areas over which it exerts ‘effective control’ (see here, here, here and here). Russia occupies parts of Ukrainian territory, maintains a military presence in Moldova and Georgia. It also exercises authority over these entities through the existing TNSEs administrations. In light of this, the HRC called on Russia to ensure the application of the ICCPR in respect for the acts committed by the armed groups and de facto authorities in these entities. A similar pattern is followed by CAT that recommended to Russia to encourage de facto Transnistrian authorities to adopt effective measures for the prevention and prohibition of torture and ill-treatment. In respect to Crimea, CAT acknowledges the effective control of Russia and therefore underlines its obligation to implement the Convention in Crimea.

It is worth mentioning that the UN human rights treaty-based mechanisms endorse a broader interpretation of jurisdiction in human rights sense than the ECtHR. It takes into account not only the effective control exercised by the state but also its authority. In other words, if a state exercises functions that have impact on human rights of individuals in a direct and reasonable manner, those individuals are within the jurisdiction of the state. Scholars argue that such functional approach has its merits as it promotes the universal respect for human rights, legal certainty and effectiveness.[2]

The idea of promoting the universality of human rights is further strengthened by another mechanism that UN puts at the disposal of individuals, namely Human Rights Council Complaint Procedure. Less popularised, this is the only universal complaint procedure addressing all human rights and all fundamental freedoms in all UN Member States. This means that the complaint can be submitted against any of the UN Member States, indifferently whether the state ratified or made reservation under a specific human rights treaty.

So Similar and Yet, So Different

From the above-mentioned UN treaty-based instruments, ICCPR and ECHR share many similarities. Vassilis Tzevelekos in his recent editorial for the European Convention on Human Rights Review reflected on the common ‘DNA’ and differences between the ECHR and ICCPR.[3] These treaties protect the same rights, pursue common goals and have the same historical roots. But they differ in the geographical scope and supervisory mechanisms. To the rhetorical question whether the ‘ECHR-isation’ of the ICCPR is sufficient to transform the ICCPR into the ECHR, the answer the author gives is a straightforward ‘no’. To quote the author, “not all lentisk is a mastic tree.” I concur that UN treaty-based human rights mechanisms will not fully replace ECHR and its judicial mechanism in addressing individual complaints from people living in TNSEs. So far, UN human rights mechanisms lacked popularity and have a very poor record of TNSEs-related cases. Illustrative of this is for example the final report of the NGOs from Moldova, Georgia and Ukraine engaged in human rights promotion and monitoring in Transnistria, Abkhazia and South Ossetia and the temporarily occupied territories of Ukraine. In no instance the report refers to UN committees’ decisions, however, it heavily relies on ECtHR jurisprudence.

Two reasons might explain the lack of popularity. First, and the most important one, is the lack of enforceability. International law, due to its decentralised nature, lacks enforcement mechanisms. Differently from the European context, where the Committee of Ministers is mandated to ensure that member states comply with the judgements of the ECtHR, a similar mechanism is absent at the UN level. And this of course added to the ECtHR popularity and diminished the popularity of UN treaty-based mechanisms. Second, a relatively poor outreach and informative campaign regarding UN mechanisms. In contrast to CoE which organises different informative and training programs on how to access its human rights protection mechanisms, UN is mostly silent on this.

In the context of Russia’s exit from CoE, UN human rights mechanisms should play an important role in addressing human rights violations complaints against Russia, inclusively those coming from individuals living in TNSEs. Although lacking enforcement power, diplomacy might be ‘powerful’ too. The ‘naming and shaming’ tactic may be effective and influence states’ human rights practices. It will sensitise public opinion and will reemphasise Russia’s control over these entities to the international community, ultimately highlighting Russia’s accountability for the illegalities committed there.

Berkes says that “while the ECtHR intend to cover the European ‘legal space’ by the effective application of the ECHR, UN treaty-monitoring bodies seek to ensure the universality of human rights in the same practice.”[4] Now is perhaps the right time for the UN human rights mechanisms to ensure the universality of human rights in those grey coloured zones on the European map to avoid them getting a darker shade.

Photo: UN Human Rights Council – UN Photo/Jean-Marc Ferré

[1] Antal Berkes, International Human Rights Law Beyond Territorial Control (CUP, 2021), 21

[2] Ibid., 52

[3] Vassilis Tzevelekos, “On Mastic Trees, the ECHR, and the ICCPR,” European Convention on Human Rights Law Review (2024), 1-8

[4] Berkes n (1), at 33