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Between frontiers: The ambiguous status of the ‘grey zones’ of Eastern Europe under international human rights law

Article by Ilya Nuzov

September 26, 2019

Between frontiers: The ambiguous status of the ‘grey zones’ of Eastern Europe under international human rights law

There are several Eastern European states within the Council of Europe where as a consequence of a frozen or active armed conflict, or annexation, the title-bearing state is unable to govern a part of its territory. The state’s sovereignty in that area is disputed by another State or a non-State entity, at times the two acting in concert. Just over six million individuals live in these contested regions of Eastern Europe: Transnistria, Donbas, Crimea, Nagorno-Karabakh, Abkhazia and South Ossetia. They often fall victim to violations of human rights from the effects of armed conflicts, political isolation and repressive measures of de facto authorities, with limited access to legal remedies both on the national level and internationally.[1]

The nature of these de facto authorities, and the modalities by which they exercise control over the respective territory, differs.[2] They might comprise organs of another state acting directly through occupation. This is the case for Crimea, annexed by Russia in March 2014 and claimed as part of the Federation, with its institutions and administration already embedded in this Ukrainian peninsula.[3] In the case of South Ossetia and Abkhazia, which claimed their independence from Georgia after the armed conflicts of the early 1990s, the local authorities are highly organised entities that receive key military and economic support from Russia.[4] Both territories claim independence, which was recognised by Russia following the 2008 Russia-Georgia war.[5]

The separatist ‘Moldavian Republic of Transdniestria’ (MRT), a breakaway territory of Moldova that formed following another armed conflict of the 1990s, arguably remains under the effective control of Russia.[6] In East Ukraine, where the armed conflict is ongoing between Ukraine’s armed forces and the so-called Lugansk and Donetsk People’s Republics (LNR and DNR), Russia also plays a key role in sustaining the separatists’ territorial control and public administration.[7] Frequent flare-ups of violence, with a major escalation culminating in a ‘four-day war’ in 2016 characterise the situation of Nagorno-Karabakh, the de jure territory of Azerbaijan under the effective control of Armenia.[8] Except for Crimea, which is a de facto part of Russia, all of the disputed territories function as de facto States but are not recognised as such by the international community, thus falling short of statehood within the meaning of public international law.

This contribution addresses the international law aspects of responsibility for violations of international human rights law committed in Eastern Europe’s ‘grey zones’[9] –parts of territories of Moldova, Ukraine, Azerbaijan and Georgia under the control of another State or a non-State entity. It provides an overview of the human rights obligations of non-State actors and States vis-à-vis the individuals in the ‘grey zones’. It argues the contested natureof these ‘grey zones’ under public international law, arising among others from disputed statehood and territorial control, results in the fragmentation of human rights obligations between state and non-state actors, causing ambiguities and gaps with respect to the attribution of international responsibility for violations. This essay examines these gaps in light of the available mechanisms of redress on the international level against both individuals and entities that commit war crimes, crimes against humanity and other abuses, and suggests gap-filling alternatives.

The territorial scope of human rights obligations of states

Human rights are internationally guaranteed entitlements of individuals vis-à-vis states and quasi-state entities. They are laid down in universal and regional human rights treaties or in customary law and entail both negative and positive obligations.[10] The obligation to respect human rights is the negative obligation of the State to not interfere with the enjoyment of rights. Positive obligations include: the duty to protect individuals from threats emanating from private actors, agents acting ultra vires and agents of third states; and to fulfil human rights, to ensure that they are realised in practice as comprehensively as possible, i.e. by the adoption of legislative or administrative measures in order to establish the legal, institutional and procedural basis for their full realisation.[11]

Treaty law has become the main and most important source of human rights law from which international human rights protection is derived.[12] For member states of the Council of Europe, a regional treaty – the European Convention on Human Rights (ECHR) – prescribes the fundamental individual rights and authorises the European Court of Human Rights (ECtHR) to issue binding decisions on their implementation. The scope of corresponding state obligations is usually expressed in the jurisdictional clauses of treaties, which require state organs and agents to secure the rights contained therein to all individuals within their territory or jurisdiction.[13] Notably, the mechanisms of protection established by the ECHR are subsidiary to the national systems safeguarding human rights. Thus, an individual or legal entity whose Convention rights have been violated must exhaust all available domestic remedies before seizing the European Court, unless such remedies are inadequate or ineffective.[14]

The breach of treaty obligations could give rise to two levels of international responsibility for violations of human rights or international humanitarian law – individual and state. For instance, if a member of the armed forces of a state commits a crime against humanity on the territory of a state that has ratified the Rome Statute of the International Criminal Court (ICC), they could face individual criminal responsibility at the ICC and the state’s international responsibility could be engaged in an international forum like the ECtHR. In the areas being explored by this publication only Georgia and Moldova are State Parties to the Rome Statute[15] although Ukraine has accepted the jurisdiction of the ICC to attempt to prosecute international crimes on its territory (specifically the events pertaining to the Maidan protests, Donbass and Crimea) since 2014.[16]

The question of international responsibility, particularly that of entities, becomes more muddled when the title-bearing State is unable to exercise control over a part of its own territory due to occupation by another state or loss of territorial control to a rebel movement. While any individual, whether a representative of a state organ or an armed group combatant, remains subject to criminal prosecution, which state (or another entity) does then bear responsibility for the violations that these agents commit? Is it the territorial State that retains de jure jurisdiction over the territory in question? The de facto non-state authorities that are controlling the territory? Or is it the third State that is controlling the territory directly or through a proxy? Is it some kind of a combination of the above? In any of these scenarios, what is the extent of the obligations of such an authority and what is the corresponding responsibility?

General international law offers no guidance on treaty obligations once a state loses effective control over a part of its territory, other than stipulating that treaties apply to the entire territory of a ratifying state.[17] International human rights law has recognised circumstances where the term ‘jurisdiction’ could expand another state’s obligations extraterritorially, such as to an area over which that state has effective overall control.[18] In the jurisprudence of the ECtHR on the determination of what constitutes ‘jurisdiction’ within the meaning of Article 1 of the ECHR, the Court had initially interpreted the threshold criterion triggering an international obligation vis-à-vis the individual plaintiff to mean that there was a presumption that the State had control over all of the territory to which it had title, but that presumption was rebuttable on the facts.[19] In Cyprus v. Turkey, the Court held that a presumption of Cyprus’ jurisdiction over northern Cyprus was rebutted because the presence of Turkish troops on the ground prevented Cypriot authorities from exercising actual jurisdiction in the part of the island under occupation.[20] Turkey was therefore held to have extraterritorial jurisdiction in northern Cyprus and consequently obligations under the ECHR.[21] 

The Court took a markedly different approach in a series of cases dealing with Transdniestria. In Ilasçu v Moldova and Russia, it held that in situations where the state is prevented from exercising its authority in part of its territory as a result of military occupation or ‘the acts of a foreign State supporting the installation of a separatist state within the territory of the state concerned,’ the initial presumption of territorial jurisdiction of the title-bearing state is not rebutted but limited to its positive obligations.[22] These included the obligation ‘to take diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.’[23] Importantly, the Court held that the applicants concurrently fell within Russia’s jurisdiction, which was extraterritorial and existed because Transdniestria remained ‘under [its] effective authority, or at the very least under [its] decisive influence.’[24] This same approach was reiterated by the Court several years later in Catan.[25]

In the more recent case of Chiragov, involving Nagorno-Karabakh and brought against Armenia (a companion case, Sargsyan, was brought separately against Azerbaijan), the Court used the same ‘decisive influence’ language to describe the relationship between Armenia and the disputed territory, holding that ‘its administration survives by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercises effective control over Nagorno‑Karabakh. The matters complained of therefore come within the jurisdiction of Armenia for the purposes of Article 1 of the Convention.’[26]

Notably, in all of the above cases the Court did not clarify whether Russia or Armenia had exercised effective control over the de facto authorities or directly over the territory in question, apparently imposing responsibility on the non-title-bearing states by virtue of their overall effective control and ‘decisive influence’ in local governance.[27]

The gaps and ambiguities concerning the respective obligations of the state and non-state actors

The Transdniestria and Nagorno-Karabakh series of cases expose several gaps and ambiguities in the flow of human rights obligations to respect, protect and fulfil human rights. First, in the absence of effective control of the territory by the sovereign, or a third state by virtue of the latter’s control over the de facto authorities or directly over the contested territory, the negative obligations to respect human rights must rest exclusively in the hands of non-state entities (NSEs). There is an increasing recognition under international law that NSEs exercising government-like functions and control over a territory must respect human rights when their conduct affects the human rights of individuals under their control.[28] Indeed, according to Resolution 2240 on access to ‘grey zones’ by Council of Europe and UN human rights monitoring bodies, the Parliamentary Assembly of the Council of Europe (PACE) considers that: the exercise of de facto authority brings with it a duty to respect the rights of all inhabitants of the territory in question, as those rights would otherwise be respected by the authorities of the State of which the territory in question is a part; even illegitimate assumption of powers of the State must be accompanied by assumption of the corresponding responsibilities of the State towards its inhabitants.[29]

However, the consequences of breaching the obligations are unclear. Quasi-state entities cannot become parties to human rights treaties, and there are currently no enforcement mechanisms, either penal or civil in nature, to hold NSEs responsible for human rights abuses under international law.[30] In a potential case at the ECtHR or the UN Human Rights Committee from South Ossetia, Abkhazia or Eastern Ukraine, the relevant body’s finding that Russia does not exercise effective control over any of these territories or the NSEs that control them (which is, admittedly, unlikely) would therefore eliminate any available recourse in an international forum.[31] This is significant because outside of the human rights law field, private individuals have no access to interstate and supranational procedures, save for victim proceedings at the ICC, and can only assert their rights under international law before domestic courts, their own or those of third countries, provided that the rights have been incorporated into the relevant national legislation.

Moreover, although the ECtHR, through its doctrine of extraterritorial jurisdiction, has ensured that individual applicants and states can in some circumstances bring cases from or concerning some ‘grey zones’, problems inevitably arise with the implementation of the Court’s decisions. Indeed, the ECtHR is not able to address judgments to the de facto authorities of the territory, which nevertheless bear the primary responsibility for the enforcement of laws. Moreover, the Court does not recognise as legitimate courts the ones established by the de facto authorities.[32]

Secondly, the suggested fragmentation by the ECtHR of obligations between territorial States, with none or limited residual obligations, third states, with all positive and negative obligations (like in cases of occupation) or situations of limited extraterritorial obligations, and de facto authorities, offers very little practical guidance to the title-bearing states on which actions they must undertake to fulfil their limited obligations. In other words, it remains unclear just what kind of diplomatic, economic, and judicial measures states like Georgia and Ukraine might adopt that would discharge their obligation vis-à-vis the territory they no longer control, leading to further uncertainty among both legislators and the local populations as to the protections they should be, or are currently, afforded.      

Thirdly, the lack of clarity with respect to which state, if any, has jurisdiction over the particular claimant, complicates the victims’ ability to pursue and exhaust domestic remedies for the purposes of then seizing international judicial or quasi-judicial mechanisms, such as the ECtHR or the UN Human Rights Committee. The ECtHR took a very relaxed approach to the question of non-exhaustion of effective domestic remedies for admissibility purposes in the Nagorno-Karabakh case of Chiragov, where virtually no engagement by Azerbaijan with the territory remained.[33] This will not be such an easy case with Donbas, South Ossetia and Abkhazia types of cases, where despite the significant influence and control exercised over the territories by Russia,[34] the engagement with the territories, and hence the number of residual obligations by Ukraine and Georgia, respectively, remains quite high.[35] Depending on the particular violation in question, it might therefore not be immediately clear to a regular citizen where the domestic remedy should best be pursued.


The legal ambiguity surrounding the ‘grey zones’ impedes the ability of their populations to systematically access international justice mechanisms. While it is possible to address communications and complaints to the likes of the ICC, the ECtHR, and the UN Human Rights Committee, at least in theory, residents of some of the ‘grey zones’ are often unable to seize these mechanisms in practice due to the lack of clarity regarding which entity to pursue legally, which courts to turn to for the exhaustion of domestic remedies, and the applicable legal framework. The judgments concerning ‘grey zones’ are likely more difficult to enforce.

International criminal law makes it possible to hold officials directly accountable for grave human rights violations that amount to war crimes, crimes against humanity or other international crimes. While states could also be held responsible for human rights violations, there is a lacuna with respect to international responsibility of entities. In this situation, the best option remains for victims to pursue remedies in domestic courts in third countries based on universal jurisdiction, which permits prosecution of individuals, and, importantly, entities, for international crimes regardless of territorial ties. The penal prosecution of political parties and other organisations, including highly organised armed groups, private military companies and corporations, might be one aspect of organisational responsibility that has been consistently overlooked by victims, lawyers and NGOs seeking to engage the responsibility of violators.

The use of sanctions, including the likes of the Global Magnitsky Acts in the US, Canada and other countries, against both individuals and entities is another ‘borderless’ action that might bring a measure of justice to victims of human rights abuses and curtail the abuses.[36] Lastly, international organisations and other interested parties should submit amicus curae communications to international enforcement mechanisms, such as the ECtHR, the CoE Committee of Ministers, the ICC and any ad hoc criminal tribunal, expressing the need for clearer delineation of obligations and responsibilities between de facto and de jure authorities, including reverting to the all or nothing Cyprus v. Turkey approach. 

Author’s bio: Ilya Nuzov is the Head of Eastern Europe and Central Asia Desk at the International Federation for Human Rights. Previously, he was Legal Adviser at the International Center for Transitional Justice and Researcher/Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights, where he also earned his LL.M. He has published on various aspects of international human rights law, international humanitarian law and transitional justice, with a focus on Eastern Europe. Ilya is a U.S. lawyer admitted to the New York bar.

[1] Maksym Khylko, Oleksandr Tytarchuk. 2018. Russia-Ukraine conflict: What can the OSCE do? Proposals for Slovakia’s 2019 OSCE Chairmanship. Slovak Foreign Policy Association. Frozen ground: Role of the OSCE in protracted conflicts: Recommendations for Slovak OSCE Chairmanship: 21.

[2] Marko Milanovic and Tatjana Papic, The Applicability of the ECHR in Contested Territories, International and Comparative Law Quarterly, Forthcoming, July 2018,

[3] General Assembly resolution 68/262, Territorial Integrity of Ukraine, A/RES/68/262, March 2014,

[4] Turashvili, Medea. 2018. Conflicts in Georgia: Learning lessons, exploring alternative options. Slovak Foreign Policy Association Frozen ground: Role of the OSCE in protracted conflicts: Recommendations for Slovak OSCE Chairmanship: 26.

[5] RFE/RL, Russia Recognizes Abkhazia and South Ossetia, RadioFreeEurope/RadioLiberty, August 2008,

[6] ECtHR, Judgment, Catan and Others v. Moldova and Russia, (Application nos. 43370/04, 8252/05 and 18454/06), 19 October 2012, para. 122.,

[7] de Waal, Thomas. 2018. Uncertain Ground: Engaging With Europe’s De Facto states and Breakaway Territories. Carnegie Endowment for International Peace: 66.

[8] ECtHR, Judgment, Chiragov and others v. Armenia, (Application no. 13216/05), 16 June 2015, para. 186.

[9] Council of Europe and United Nations human rights monitoring bodies. 2018. Unlimited access to member States, including ‘grey zones’. Parliamentary Assembly of the Council of Europe Resolution 2240. The Republic of Cyprus also falls within this category of States with part of its territory, Northern Cyprus, occupied by Turkey.    

[10] Nowak, Manfred. 2003. Introduction to the International Human Rights Regime. Martinus Nijhoff Publishers/Brill Academic: Leiden/Boston.

[11] Kälin, Walter and Kunzli, Jorg. 2011. The Law of International Human RightsProtection. Oxford: Oxford University Press.

[12] Ibid.

[13] See e.g. Article 2 of the International Covenant on Civil and Political Rights: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant. By contrast, Article 1 of the ECHR provides that ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention.’

[14] Article 35, ECHR; ECtHR, Judgment, Chiragov and others v. Armenia, (Application no. 13216/05), 16 June 2015, para. 166,

[15] International Criminal Court, The States Parties to the Rome Statute

[16] International Criminal Court, Preliminary examination: Ukraine

[17] Vienna Convention on the Law of Treaties, Art. 29, UNTS vol. 1155: 331.

[18] See generally Milanovic, Marko. 2011. Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy. Oxford: Oxford University Press. This is particularly the case with respect to the jurisprudence of the European Court of Human Rights. See ECtHR, Judgement, Al-Skeini et al. v. the United Kingdom, (Application no. 55721/07), 7 July 2011, paras. 133-140,

[19] Milanovic, supra no. 2, p. 8.

[20] ECtHR, Judgment, Cyprus v Turkey, (Application no. 25781/94), 10 May 2001, paras. 77-78,

[21] Ibid.

[22] ECtHR, Judgement, Ilasçu et al. v Moldova and Russia, (Application no. 48787/99), 8 July 2004, paras. 312, 331-333,

[23] Ibid. para. 334.

[24] Ibid. paras. 314-316, 392.

[25] The Court found Russia responsible for the acts of separatist authorities because Russia maintained its effective control over Transdniestria, while Moldova retained residual positive obligations that it fulfilled with respect to the applicants. Se e Catan, supra no. 6, paras. 121-123, 145-148,  

[26] ECtHR, Judgment, Chiragov and others v. Armenia, (Application no. 13216/05), 16 June 2015, para. 186,

[27] Milanovic, supra no. 2, p. 15.

[28] Office of the United Nations High Commissioner for Human Rights, Accountability for killings in Ukraine from January 2014 to May 2016, Report: para. 12. See also Clapham, Andrew. (2006). Human Rights Obligations of Non-State Actors. Oxford: Oxford University Press.

[29] Parliamentary Assembly of the Council of Europe, Resolution 2240 (2018), Unlimited access to member States, including “grey zones”, by Council of Europe and United Nations human rights monitoring bodies,

[30] One notable exception being the UN Convention on the Rights of Persons with Disabilities. UN General Assembly, Convention on the Rights of Persons with Disabilities resolution adopted by the General Assembly, January 2007, A/RES/61/106, 

[31] This lacuna was exemplified by the ECtHR case of Azemi v Serbia, (Application no. 11209/09), 5 November 2013, where the Court held that Serbia lacked jurisdiction over the applicant in Kosovo.

[32] See e.g. ECtHR, Judgment, Ilascu and others v Moldova and Russia, (Application no. 48787/99), 8 July 2004, para. 436.

[33] ECtHR, Judgment, Chiragov and others v. Armenia, (Application no. 13216/05), 16 June 2015, para. 119.

[34] According to some commentators, it amounts to effective control and Russia’s occupation of the territories. Tsagareishvili, Nino. 2019. Zone of Barbed Wires: Mass Human Rights Violations along the Dividing Lines of Abkhazia and South Ossetia. Human Rights Center: p. 40.

[35] de Waal, supra no. 7, p. 28.

[36] For its description, see US State Department, Global Magnitsky Act,

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