05 Nov Jurisdiction Without Protection? The Human Rights Committee and the Limits of Control in Transnistria
[Natalia Cwicinskaja is an Assistant Professor of international law at the Department of International Law and International Organisations, Faculty of Law and Administration, Adam Mickiewicz University in Poznań.]
The author conducts academic research on human rights law in contexts of contested territorial authority. She is not involved in the pending communication discussed in this post.
In April 2026, the Moldovan NGO Promo-LEX, announced that, with the European Prison Litigation Network (EPLN), it had submitted an individual communication on behalf of Alexandr Dimov to the UN Human Rights Committee (HRC) against the Republic of Moldova and the Russian Federation.
According to Promo-LEX, Dimov was allegedly abducted in May 2022 by representatives of the de facto Transnistrian “ministry of state security”. The de facto authorities accused him of throwing two Molotov cocktails at a military recruitment centre in Tiraspol and, in March 2023, sentenced him to 20 years’ imprisonment on terrorism charges. He remained in detention until February 2025. During his detention, he was reportedly subjected to torture and psychological pressure, denied adequate medical care and contact with his family, and subjected to proceedings that allegedly failed to meet fair-trial requirements.
The claims against the two States rest on distinct grounds. With respect to the Russian Federation, it invokes Articles 7, 9, 10, 14 and 17 of the Covenant, as well as Article 2(3), in connection with Dimov’s detention and treatment, the proceedings against him and the alleged absence of an effective remedy. With respect to Moldova, it invokes Article 7, read in conjunction with Article 2(1) and (3), and Article 10(1), read in conjunction with Article 2(1). It also invokes Article 2(3) in relation to the alleged absence of effective mechanisms of support, assistance and rehabilitation following Dimov’s release
At the time of writing, the case has not yet been publicly listed among the HRC’s pending communications, but it highlights a recurring structural issue: how jurisdiction and State responsibility are assessed in situations where individuals live under authorities that are not recognised under international law, and whether access to UN human rights mechanisms can provide meaningful protection in practice. Such situations often involve the fragmentation of legal responsibility and the indirect or mediated forms of control through which recognised States remain connected to the territory.
While the case law of the European Court of Human Rights (ECtHR) in this area is relatively well developed, the position of the Committee remains far less settled. Although the Committee has engaged with questions of extraterritorial jurisdiction, its practice remains comparatively limited in contexts of unrecognised territorial authority. In its individual-communications practice, the HRC has addressed only a limited number of cases arising from unrecognised territorial contexts, most notably those concerning Transnistria.
Jurisdiction as a Threshold
The starting point of the Committee’s analysis in such cases is the concept of jurisdiction, which functions as a threshold condition for the application of the Covenant, as reflected in Article 1 of the Optional Protocol. Under the HRC’s established approach, jurisdiction is generally understood in terms of a State’s power over individuals or effective control, even when exercised outside its territory (General Comment No. 31 (GC31), para. 10), an understanding also reflected in its case law.
This jurisdictional approach is illustrated in the Committee’s recent practice in cases concerning Transnistria, where the same factual circumstances were examined in relation to the responsibility of the Republic of Moldova and the Russian Federation (CCPR/C/139/D/2870/2016 and CCPR/C/139/D/2871/2016). Both cases concerned restrictions imposed by de facto authorities on the registration and activities of the Jehovah’s Witnesses community in the region.
The Transnistria Cases: Structural Assymetries
However, the application of this framework in the Transnistria communications reveals a structural asymmetry in how jurisdiction operates in practice. While jurisdiction is not in principle excluded in respect of the parent State, its assessment tends to shift to the scope of positive obligations in situations where effective control is absent. By contrast, in relation to a third State, jurisdiction must first be established through a demanding assessment of control or influence. At the same time, the HRC’s broader case law provides only limited guidance as to how the notions of “power” and “effective control” should be applied in practice. While the Committee consistently invokes the formulation set out in GC31, its reasoning rarely clarifies how these concepts are to be operationalised in specific factual contexts, a difficulty also noted in concurring opinions of Committee members.
The practical implications of this asymmetry become apparent when examining the Committee’s reasoning in the Transnistria communications. In both communications, the analysis ultimately centres on whether the jurisdictional threshold is met, thereby determining whether the Committee proceeds to examine the substance of the claims.
In respect of the Republic of Moldova, jurisdiction is not excluded in principle. However, in the absence of effective control, it is translated into a limited set of positive obligations, and the Committee’s assessment focuses primarily on whether the State has taken formal steps within its capacity.
This is reflected in the Committee’s reasoning, which proceeds on the basis that Moldova retains jurisdiction in respect of individuals in Transnistria, but only within the scope of its positive obligations (para. 8.4). At the same time, the Committee explicitly acknowledges that the State lacks effective control over the territory and has not been involved in the impugned decisions of the de facto authorities (para. 8.7). Against this background, the analysis centres on the measures taken by the State within its available means. The Committee examines, in particular, whether the authorities have taken steps to secure the applicants’ rights through domestic legal avenues, engagement with international actors, or the establishment of alternative institutional mechanisms (paras. 8.5-8.6).
However, rather than developing a substantive standard for assessing the adequacy of such measures, the Committee ultimately frames the issue in terms of substantiation. In the absence of sufficiently specific information as to what additional measures the State could have taken in the circumstances, it concludes that the claims have not been adequately substantiated for the purposes of admissibility (para. 8.9).
This approach results in a narrow evaluation of responsibility, in which the scope of positive obligations remains only loosely defined and the admissibility threshold limits the possibility of a more detailed examination of the merits.
In relation to the Russian Federation, the analysis does not proceed to the scope of obligations but remains focused on whether jurisdiction is established. The Committee frames the question in terms of whether the available evidence is sufficient to establish effective control on the part of the Russian Federation. Where such control is not sufficiently substantiated, the communication does not proceed to a substantive examination.
This is reflected in the Committee’s reasoning, which begins by recalling that jurisdiction under the Covenant extends to individuals subject to a State’s power or effective control, even outside its territory (para. 8.4). Against this background, the Committee frames the central question as whether the Russian Federation exercised effective control over the situation in Transnistria for the purposes of the Covenant.
The Committee then reviews the material relied upon by the applicants, including references to the case law of the ECtHR, evidence of military presence, patterns of support to the de facto authorities, and broader indicators of dependence. At the same time, it emphasises that it must make its own assessment of jurisdiction on the basis of the evidence before it, rather than simply relying on findings of other international bodies (paras. 8.6-8.7).
However, rather than developing a detailed standard for assessing what constitutes “effective control” or “decisive influence” in such contexts, the Committee ultimately concludes that the applicants have not sufficiently substantiated the existence of the required level of control (para. 8.8). It therefore finds that the jurisdictional threshold has not been met and declares the communication inadmissible.
Consequently, the analysis does not progress beyond the preliminary assessment of jurisdiction and substantiation to a substantive examination of the alleged violations.
Jurisdiction as Gatekeeping
This asymmetry does not merely reflect different factual positions of the States concerned, but is also evident in the structure of the Committee’s reasoning in these cases. In the case of the parent State, jurisdiction is not treated as excluded in principle and is subsequently framed in terms of positive obligations. By contrast, in relation to a third State, jurisdiction operates as a distinct threshold requirement, with the existence of control needing to be sufficiently substantiated. As a result, the same factual situation is subjected to two analytically distinct approaches, which are applied differently within the admissibility analysis. This distinction is not explicitly articulated by the Committee, but emerges from a close reading of the HRC’s reasoning.
Taken together, these cases illustrate how jurisdiction operates as a decisive gatekeeping mechanism within the Committee’s admissibility analysis. Whether framed in terms of positive obligations or effective control, its application in these cases limits the possibility of a substantive examination of the merits. By contrast, the case law of the ECtHR has developed more detailed criteria for assessing forms of extraterritorial control, including in contexts of indirect or shared authority, thereby allowing for a more sustained engagement with the merits of alleged violations.
While the Committee engages with the factual context, its reasoning channels that context primarily through the requirements of jurisdiction and substantiation. The difficulty is not that jurisdiction is treated as a preliminary question, but that the control-based framework leaves limited room for assessing how local de facto institutions, the territorial State, and the third State interact in practice. The result suggests a mismatch between the institutional reality of unrecognised territorial authority and a jurisdictional framework that remains closely tied to a traditional understanding of control.
Although the Committee’s doctrine has evolved, most notably in General Comment No. 36 (GC36), which recognises that jurisdiction may arise where a State’s conduct has a direct and reasonably foreseeable impact on individuals outside its territory, the implications of this development for the Committee’s broader approach to jurisdiction remain uncertain. While the Committee has referred to this formulation in its subsequent case law, including in cases such as A.S. et al. v. Italy, where questions of jurisdiction were directly at issue, its reasoning continues to be framed primarily in terms of the traditional criterion of “power or effective control” (para. 7.4). In the cited case, the impact-based language of GC36 is invoked alongside, rather than replacing it, and is not developed into an independent or operational test for establishing jurisdiction (para. 7.5).
A Structural Gap in Protection
As a result, the Committee’s approach continues in practice to rely primarily on established control-based models, particularly in situations where control is indirect, shared, or difficult to establish. For individuals living in such contexts, this creates a structural gap in protection that places individuals in a position where the availability of international review depends less on the substance of their claims and more on the ability to satisfy jurisdictional criteria that may not reflect the realities of authority on the ground. In this sense, access to the Committee’s individual communications procedure does not necessarily translate into effective protection, particularly where the jurisdictional threshold cannot be met. The more fragmented the structure of authority, the more difficult it becomes to establish jurisdiction, and thus to secure a substantive examination of alleged violations.
This, in turn, reflects a deeper structural mismatch between the Committee’s jurisdictional framework and situations characterised by fragmented authority, indirect control, and the involvement of unrecognised territorial entities.
The control-based model of jurisdiction was developed in relation to relatively clear-cut scenarios, such as occupation or direct forms of extraterritorial action, where the link between authority and responsibility can be more readily established. By contrast, situations such as Transnistria are characterised by layered and indirect forms of authority, where power is exercised through a combination of local institutions and external support, and where no single actor exercises full and exclusive control.
A jurisdictional framework that remains closely tied to a binary understanding of control, framed in terms of the presence or absence of effective control, may therefore struggle to account for the way in which rights are actually restricted or denied on the ground.
This outcome reflects a deeper feature of the Committee’s approach. The analysis is structured less around how rights are exercised or restricted within a given institutional framework, and more around whether a recognised State exercises sufficient control over the territory or the individuals concerned. As a result, individuals must first satisfy the jurisdictional threshold, which in such contexts may limit the possibility of a substantive examination of the alleged violations.
In this sense, the Committee’s approach is doctrinally cautious but practically restrictive. By relying heavily on effective control as a gateway criterion, it risks excluding situations in which individuals may be particularly exposed to human rights violations. This difficulty is especially visible in contexts of fragmented or indirect authority, where the control-based model reflected in GC31 proves difficult to apply in practice.
Although para 63 of GC36 suggests a potentially broader, impact-based understanding of jurisdiction, it remains unclear whether and to what extent this development will extend beyond the specific context of the right to life or be consistently reflected in the Committee’s case law.
The pending communication submitted by Promo-LEX may therefore provide an opportunity to revisit this approach. Whether the Committee will maintain its cautious reading of jurisdiction or move towards a more functional understanding of authority remains to be seen.