European human rights ‘Grey Zones’: The application of the European Convention on Human Rights in contested European territories

This thesis is concerned with the effectiveness of the European Convention on Human Rights (ECHR) system in areas of contested statehood — so-called ‘grey zones’ — within the Council of Europe (CoE) region. The problematique is based on the real-world experience currently facing approximately 15 million people across nine European regions, where access to the CoE human rights institutional framework is seriously curtailed due to the contested status of the polity. The point of departure is that the ECHR should be normally applicable throughout the entire CoE territory, but ‘grey zones’ have become a normalised, long-term exception to this in Europe. The thesis explores in particular the extent to which the ECHR's normative framework is applicable in territorial ‘grey zones’ according to statutory and treaty-based commitments. It further considers whether it can be said that Member States share responsibility to address these human rights grey zones, and what lessons can be learned from the experience of engagement by Council of Europe monitoring and advisory mechanisms in the case of Kosovo since 1999 to determine whether aspects of that experience could be more broadly applicable in other contested territories. The thesis proposes qualifying the challenge as one of first principles for the Council of Europe which represents a fundamental threat to the integrity of the Convention system. It examines the European Court of Human Rights’ Article 1 jurisprudence to determine the efficacy of the Court’s practice, and in light of that, the thesis advances a proposition to reconceptualise the “ECHR System” as a matrix of complementary standard-setting, monitoring and advisory components rather than a hierarchy of autonomous institutions. With the goal of ensuring rights are practical and effective, the thesis further considers whether there are opportunities for a more judicious engagement with de facto states without prejudice to positions on political status of the regions in question. The thesis fills a critical gap in literature on the extraterritorial application of human rights law by seeking to reconceptualise the challenge from the narrowly conceived frame of jurisdiction and imputability, to a more fundamental issue of European ordre public. This applied critical legal analysis seeks to explore ways to improve the practical effectiveness of the ECHR system in these contexts in a manner that is in line with the object and purpose of the ECHR and without prejudice to individual positions on the status of the grey zones. The analysis is underpinned by empirical data gathered through a series of targeted interviews with high-level, expert respondents and mandate-holders in Kosovo and within the Council of Europe.

Publisher

NUI Galway

Rights

Attribution-NonCommercial-NoDerivs 3.0 Ireland

cbn

Collections

University of Galway Theses (PhD Theses)