Chapter 5 examines the evolving legal context and the practical effectiveness of CoE interactions with the central case study, Kosovo. Kosovo is a sui generis case, distinct from all others, but it is an appropriate case study as it has faced and, in several cases, overcome similar engagement challenges. Over more than two decades, the CoE has innovated and adapted its relationship with Kosovo, and so this chapter seeks to illustrate the pragmatism and creativity which can be employed when the political will to do so is in place. The chapter elaborates the principle of engagement on the basis of ‘functional capacity’ and the practice of monitoring substitution.

The focus of Chapter 4 seeks to determine whether the dominant focus should be judicial or non-judicial. To that end, the manner in which the European Court of Human Rights has interpreted ‘jurisdiction’ under Article 1 of the ECHR in a representative sample of seminal cases pertaining to ‘grey zones’ is examined. 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.

Chapter 6 propose 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 might contribute to satisfying the ordre public imperative described in Chapter 3. The objective is to begin to identify practical initiatives which could be pursued in accordance with the Statute to enable progress in a fully impartial, standards-based manner.

In Chapter 2 I propose reconceptualising the ‘CoE system’ from one traditionally seen as a hierarchy of autonomous institutions towards an understanding of a matrix of mutually reinforcing judicial and non-judicial components for which Member States have collective responsibility. I argue that a whole-of-system approach is especially important when faced with systemic problems of such complexity. I then offer a high-level snapshot of current examples which exist in Eastern Europe (Transnistria and currently occupied parts of Ukraine), the South Caucasus (the Karabakh region/Nagorno-Karabakh, Abkhazia and South Ossetia), and the Eastern Mediterranean (Northern Cyprus).

The introductory chapter establishes the central questions, the rationale and structure of the monograph noting that it is concerned with the impact of unresolved conflict and contestation on the effectiveness of Europe’s human rights protection architecture within the framework of the Council of Europe. It also highlights several limits, such as the European focus and the deliberate decision not to seek to advance any reform proposals for the European Court of Human Rights Article 1 jurisprudence. It also engages, and dismisses, the potential critique of human rights imperialism.

The book concludes with a reflection on the challenge of grey zones as being one of first principles, 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 the most isolated. The Council of Europe must address this systematic problem as a matter of urgency and with the decisive attention of Member States and both statutory and non-statutory actors.

Chapter 3 considers the concept of shared, or collective, responsibility, a term which developed its own ambiguous ecosystem over the ten-year Interlaken process, but which reduced its meaning to an overly narrow focus on the ECHR control system. I propose that the protection of human rights in grey zones is a matter of first principles, which requires us to consider the object and purpose of the Council of Europe, which itself was established as a direct consequence of war. I argue that systemic and persistent limitations in the functioning of the broader CoE system in areas of conflict must consequently change the nature of the response. I suggest that such situations give rise to an ordre public imperative shared amongst all Member States. I further suggest that public order, when used as a tool for the intra-territorial effectiveness of the ECHR, constitutes a legal norm as it creates an exception to the state’s right to act voluntarily (i.e. it limits the possibility to declare a diminished level of responsibility for a particular region) on one hand, and it generates an imperative to act collectively, on the other.