Analysis: “Extraterritorial jurisdiction in Ukraine v. Russia (re Crimea) ” by Andrés Delgado
Last week, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a Decision declaring the inter-state case Ukraine v. Russia (re Crimea) (application no. 20958/14) partly admissible. Though the Decision will be followed by a judgment, the examination of the ECtHR jurisdiction contained therein is worth commenting upon.
This case is one of three pending inter-State cases between Ukraine and Russia, and one of 23 inter-State cases ever brought to the ECtHR in all its history. There also are more than 7,000 individual applications concerning events in Crimea, Eastern Ukraine and the Sea of Azov involving the Russian Federation. The case concerns Ukraine’s allegations of a pattern of violations of the European Convention on Human Rights (ECHR) by the Russian Federation in Crimea. The Ukrainian Government argued that Russia since 27 February 2014 had exercised effective control over the Autonomous Republic of Crimea and the City of Sevastopol, integral parts of Ukraine and thus should be held liable for those human rights violations.
In its admissibility decision, the ECtHR is noteworthy mainly for two issues: (a) the question of sovereignty over Crimea; and (b) the extraterritorial scope of the ECtHR jurisdiction.
(a) The legal status of Crimea
The issues present in the case between Ukraine and Russia have to be placed in the overall context of the annexation of Crimea by Russia in 2014 and the legality of such actions. In this type of cases where the alleged violations of the ECHR are committed in a territory where, to put it diplomatically, sovereignty is contested, there is a risk that the action might not only try to advance the reparation of human rights violated but also a sovereignty claim for the Court to recognise.
The Court is very much aware of that fact and is quite clear when establishing that the Court ‘is not called upon to decide in the abstract on the “legality” of the Russian Federation’s purported “invasion” and “occupation” of Crimea other than by reference to the rules contained in the Convention. Nor are the applicant Government seeking a ruling from the Court on the legality per se under international law of the “annexation of Crimea” and, accordingly, of its consequent legal status thereafter …. Accordingly, they are outside the scope of the case and will not be directly considered by the Court’. (paragraph 244).
At first sight the Court’s approach to the issue of territories where sovereignty is disputed (like Crimea) are characterised in theory by judicial self-restraint and avoidance techniques. Yet in practice, it is very difficult for the ECtHR, once seized, to completely detach itself from the problematic context within which the case arises. The approach the ECtHR takes in relation to its jurisdiction in this type of cases necessarily has an impact on the underlying political conflict. Turkey’s refusal to comply with the ECtHR Loizidou judgment shows how even when trying not to adjudicate on issues concerning illegal occupation of a territory, the Court is still making a certain choice on that issue whether it wants to or not. It will be interesting to see if on the merits the judgment finds that Russia violated the ECHR, whether Russia would comply with it and whether it will be seen as a way to further reinforce its position in Crimea.
(b) The extraterritorial jurisdiction of the ECtHR
In cases like the one at stake, the ECtHR’s interpretation of Article 1 ECHR concerning its jurisdiction focuses on who exercised overall effective control over the territory when the violations took place tries to strike that balance by focusing on a factual issue. Since it would serve little to no purpose to hold a State responsible for human rights violations over a territory it does not control, the ECtHR considers that it is better to focus on who is de facto controlling that territory. In the case at hand, the ECtHR found that Russia exercised effective control over Crimea from 27 February 2014 (taking into account, in particular, the size and strength of Russian military presence in Crimea from January to March 2014), and therefore that the ECtHR had competence to examine the application.
It is necessary to point out that though the concept of extraterritorial jurisdiction of the ECtHR has been developed over the year so as to include actions committed by contracting parties in places like Kenya (Öcalan v. Turkey), Iraq (Al‑Saadoon and Mufdhi v. the United Kingdom) or even international waters (Medvedyev and Others v. France), the extraterritorial jurisdiction continues to be the exception and thus should be interpreted restrictively. Thus, the factual and evidential assessment of the Russian military presence in Crimea becomes of paramount importance for the Court’s assessment of effective control.
In conclusion, the ECtHR with this decision continues to refine the scope of its extraterritorial jurisdiction by further elaborating on the overall effective control test with the examination of the size and strength of the occupying army as a way to establish its jurisdiction. Given the number of cases where this is an issue right now, with at least another case on the extraterritorial application of the ECHR being decided this month, it will be interesting to see whether the Court has reached the limits to the overall effective control.
Andrés Delgado Casteleiro is the Faculty Secretary at the Universidad Autónoma de Chile’s Law Faculty where he teaches Public International Law. His publications include “The International Responsibility of the European Union: From Competence to Normative Control” (Cambridge University Press, 2016).