By considering effectiveness beyond formal normative sources and titles of the subjects implicated in the territorial situation, international human rights law is interpreted and applied in a manner that renders human rights practical and effective in matters of the applicability and scope of international human rights obligations, international responsibility for their breaches and international monitoring mechanisms. This normalising role of international human rights law has an important limit, the rights of States under general international law, and three hidden consequences: the effective use of the residual powers by the territorial State; the consolidation of the subject de facto controlling the area; and an activism required from multiple actors.

The chapter explains that non-state actors controlling the area outside the effective control of the State can incur responsibility for the violations of their obligations under international human rights law. The norms of the responsibility of peace operations and de facto regimes provide an existing but rarely applied legal framework. Peace operations and de facto regimes incur responsibility not only for wrongful acts committed by persons or groups of persons whose conduct is attributable to them, but also for the failure to comply with their own due diligence obligations.

The chapter argues that judicial control mechanisms can provide effective remedies for individuals in ‘grey zones’ provided that the applicant can establish the responsibility of the respondent State and the (quasi-)judicial body is willing to exercise certain judicial activism to promote individuals’ access to international justice. The chapter highlights certain major deficiencies of judicial control mechanisms, before recommending certain tools of judicial activism that may promote individual applications from ‘grey zones’. If the attributability of the conduct to the respondent State is established, judicial control mechanisms are likely to have an impact on the human rights situation in the ‘grey zone’.

Non-judicial control mechanisms are international monitoring proceedings where the monitoring body has no competence to give opinions on individual petitions. Non-judicial control mechanisms are not characterised by the systemic deficiencies of judicial mechanisms that hinder their availability for individuals. Their procedure is more flexible and open ratione personae to address recommendations to States and non-state actors involved in the territorial situation. The chapter claims that non-judicial control mechanisms can establish a constructive dialogue with States and non-State actors controlling territory and follow a holistic approach, monitoring the conduct of all international law subjects implicated in the area.

The chapter answers the question of whether international human rights treaties apply to the conduct of States in an area outside the effective control of the territorial State. In international human rights law, ‘jurisdiction’ is the principal criterion of the scope of application ratione loci of conventions. States and monitoring bodies have interpreted the notion of jurisdiction ratione loci first in cases related to the conduct of States beyond their borders (outside State), and later with regard to the territorial State in a part of its own territory outside its effective control. The chapter explains that the two States’ jurisdictions are concurrent and complementary.

International human rights law binds non-state actors when they exercise effective control over the territory and imposes on them positive obligations in accordance with their effectiveness. Among possible legal bases, the de facto control theory is the most widely accepted explanation under which territorial control, irrespective of the legal title, instigates certain obligations. The chapter first explains that international human rights law has a binding effect on peace operations and de facto regimes. Second, it demonstrates that the specificity of the limits of their positive obligations results from the immunities of peace operations, on the one hand, and from the non-recognised status of de facto regimes, on the other.

When an area of the State’s territory is controlled by subjects other than the territorial State, the committed human rights violations may engage the responsibility of States in two different ways: States (especially the territorial State or the outside State) can be held responsible for the conduct of the non-state actor, through attribution, or for the violation of their own obligation of due diligence, independently of the attributability of the non-state conduct. Because of the lack of special attribution rules enshrined in the respective conventions, human rights treaty-monitoring bodies interpret the general rules flexibly in order to make human rights effective, in conformity with the principle of effet utile.

The book grapples with the applicability and application of international human rights law in geographic areas where the State that is recognised as the sovereign of the territory (territorial State) has lost effective control over a part of its territory. As such regions vary both as to the manner in which the territorial State has lost its territorial control and as to the subject that has taken over territorial control of the area, the chapter classifies and delimits the geographic areas on which the book focuses, and presents its conceptual framework.

International human rights law imposes obligations on States that have jurisdiction over facts occurring in the ‘grey zone’, namely, the territorial State and the outside State. The principal question which the chapter answers is dual: what the scope of the obligations binding the concerned States is in respect of the ‘grey zone’ and what the limits are of these obligations, especially compared to the obligations binding them in a ‘normal’ situation where the State has effective control over its entire territory. The chapter claims that the degree of the State’s effectiveness and the lawful limitations the State introduces can decrease the modalities of the expected protection but cannot restrict the heart of the obligations under human rights conventions.

Public international law scholarship has identified several principles about the legal regime applicable to de facto regimes, i.e. entities that exercise effective control over territory of an existing state, but which are not recognised as an independent state or government of an existing state, and which are not being controlled by that state. The definition does not depend on warfare, nor on the recognition of an international legal personality of the de facto regime, nor on the extent of its political independence; it has been translated into positive law in Article 1(1) of Additional Protocol II (AP II) to the Geneva Conventions, providing for the material field of application of the Protocol, which applies to all armed conflicts taking place between the state party's armed forces and non-state armed groups exercising effective control over an area. Th us, our working definition covers a wide range of non-state actors from separatist administrations with a high standard of effectiveness through rebel groups de facto occupying a part of the territory of a state to armed opposition groups vindicating the governmental power over the entire state territory. They differ in the effectiveness of their control of territory and in respect of the type of conflict within which they operate. This can be ongoing armed hostilities or relatively stable frozen conflicts. What is common to all such entities is their ability to control a given area of the territory without the agreement of the recognised government of the state.

Stemming from this territorial control, several legal consequences arise under customary law, international humanitarian law (IH L), international human rights law (IHR L), and refugee law. Furthermore, legal rights and obligations become applicable to the de facto regime, be it a party to an armed conflict under IHL or an entity exercising quasi-governmental powers under IHRL. The question this chapter considers is whether the applicability of such rights and obligations allows for the allocation of a certain role to de facto regimes (DFR s) in the context of the concept of Responsibility to Protect (R2P) as defined in the 2005 World Summit Outcome (WSO) and subsequent UN documents.