In my previous post I explained how the European Court’s Article 1 jurisprudence allows it to avoid the question of sovereignty over Crimea, since it can ground Russia’s jurisdiction over the territory, and thus the applicability of the ECHR, simply on the fact of its control and need not say anything else. But there are at least two issues on the merits of the Ukraine v. Russia re Crimea case that could directly engage the question of sovereignty over the territory. As a preliminary matter, I now need to say that I have not had the benefit of reading the pleadings of either party in the case – the Court has an inexplicable policy of not putting the pleadings online, but only allowing them to be consulted in its building in Strasbourg. That said, I am reasonably certain that the two issues I examine here are properly raised in the case. I will therefore now turn to the first of these, the mass imposition of Russian citizenship on the people of Crimea.
Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR
On 11 September the Grand Chamber of the European Court of Human Rights held oral hearings on the admissibility of the interstate claim Ukraine brought against Russia regarding Crimea (no. 20958/14). The webcast of the hearing is available here. There are many different admissibility issues that the case raises, some of them heavily factual (e.g. the existence of an administrative practice on the part of Russia that makes individual recourse to domestic remedies impossible). The case may well flounder on one of them. But the one issue that concerns me here is simply this: should the European Court make any pronouncements on whether it is Ukraine or Russia who is the rightful sovereign of Crimea?
To be clear, sovereignty over Crimea is not to my mind a legally difficult question – Russia’s annexation of Crimea was as clearly illegal as anything can be. But there is wider, much more fraught, question of principle and prudence: should international human rights bodies pronounce on issues which, while capable of legal determination, are not part of their central mission of human rights protection and may negatively affect that mission? This is especially the case in situations in which it is entirely predictable that, in the political context, any such pronouncement would provoke intense backlash, even possibly leading to Russia’s withdrawal from the Council of Europe.
Yesterday international investigators charged three Russian nationals and one Ukrainian national before Dutch criminal courts for the 2014 downing of Malaysian Airlines flight MH17 over Ukraine. According to a report in the Guardian:
The suspects were named as Igor Girkin, a former colonel of Russia’s FSB spy service; Sergey Dubinskiy, employed by Russia’s GRU military intelligence agency; and Oleg Pulatov, a former soldier with the GRU’s special forces spetsnaz unit. All were Russian soldiers previously sent abroad.
A fourth suspect, Leonid Kharchenko, is a Ukrainian. He led a military combat unit in the city of Donetsk as a commander, it was alleged.
Girkin was minister of defence in the Moscow-backed Donetsk People’s Republic (DNR). He was the commander of the DNR when the plane was shot down on 17 July 2014. Dubinskiy served as Girkin’s deputy in the DNR, and Pulatov was Dubinskiy’s deputy. Kharchenko was under their command.
Investigators said the soldiers “formed a chain linking DNR with the Russian Federation”. This link was how the separatists obtained heavy equipment from Russia including the Buk launcher used to fire at MH17 with “terrible consequences”.
The accused did not push the button themselves but were responsible for bringing the anti-aircraft system to eastern Ukraine. They could therefore be held criminally liable and charged with murdering 298 people, investigators said.
Readers will recall that last year the investigators and the Dutch and Australian governments formally attributed the downing of MH17 to Russia. Yesterday, however, saw the first criminal charges brought against specific individuals. Obviously, it remains highly unlikely that any of them will face trial in the Netherlands in the foreseeable future, unless they are unwise enough to travel abroad, although they will likely be tried in absentia.
There have also been interesting developments about litigation regarding MH17 in the European Court of Human Rights. Back in 2014 I suggested that the families of the victims may decide to bring cases against both Russia and Ukraine:
In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.
At least two such cases have indeed been brought and have been communicated by the Court to the respondent governments for pleadings on admissibility and merits.
Anne Peters’ EJIL Talk! blog post Passportization: Risks for International Law and Stability regarding actions of the Russian Federation as regards applications for Russian nationality for persons living in certain parts of Ukraine (see here and here) raises important and interesting questions. With respect I believe that (i) the post overstates the assistance available from the international law concerned directly with nationality, (ii) evaluating the extent of that law is a worthwhile endeavour, and (iii) something like Prof Dr Peters’ final conclusion may be ultimately reached by a different route, by reference not to the particular principles related to nationality in international law but to the actions of the Russian Federation taken in their overall factual context.
International law re nationality: background
Nationality is closely linked to sovereignty, and nationality issues may well become a source of conflict between or amongst States. Since the Advisory Opinion of the Permanent Court of International Justice in Nationality Decrees Issued in Tunis and Morocco on 8 November 1921, Advisory Opinion, 1923, PCIJ (ser B) No 4 (7 February 1923) questions regarding nationality are no longer considered, as was often the case earlier, to lie exclusively within the ambit of each State. The 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws records respectively at article 1 that:
‘It is for each State to determine under its own law who are its nationals’ and that nationality ‘shall be recognised by other States… so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.’
By article 2:
‘Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.’
In a May 25, 2019 interlocutory decision, the International Tribunal for the Law of the Sea (ITLOS) prescribed provisional measures in the case brought by Ukraine against Russia, ordering Russia to release three Ukrainian naval vessels and 24 Ukrainian service members seized on November 25, 2018 in an incident in the Kerch Strait. During the incident last fall, Russian Coast Guard forces, operating in concert with a Russian naval corvette and a military aircraft, fired on two Ukrainian warships and a naval auxiliary as they attempted to transit the strait against the orders of Russian authorities. The ships and their crews were captured and remain in detention in Russia, charged with violating Russian criminal law.
On April 29, Ukraine filed a case with ITLOS requesting provisional measures to order their immediate release. Such measures are authorized under article 290 of the United Nations Convention on the Law of the Sea (UNCLOS) in urgent situations to prevent a real and imminent risk of irreparable prejudice to the rights of a party, in this case Ukraine. Article 290(5) permits such measures before the merits of the case so long as the Tribunal has prima facie jurisdiction in the case. The key question was whether the Russia’s operation constituted a “military activity,” and was therefore exempt from jurisdiction in accordance with a previous Russian declaration under article 298 of UNCLOS. The Tribunal determined that Russia’s operations were not a military activity, but the decision is likely to generate unintended consequences.
The ITLOS order has effectively diminished the military activities exemption which will give pause to the 27 nations that have made such declarations, including China, France, Norway, Denmark, and the United Kingdom – and in the future, most likely the United States, which intends to make such a declaration once it accedes to the Convention. (The states are identified in paragraph 11 of Judge Gao’s separate opinion). In a decision that suggests outcome-based legal reasoning to constrain Russia, ITLOS questions the viability of the military activities exemption based on any rationale.
As part of its analysis for jurisdiction, the Tribunal avoided a determination on whether there was an armed conflict between the two states, as would appear from the application of the Geneva Conventions in article 2 common, and as I suggested in an earlier piece. Instead, the ITLOS order accepts without analysis that Ukraine and Russia are interacting during a time of peace, a dubious assumption. In doing so, the Tribunal vindicates two important rights that will be welcomed by maritime powers: sovereign immunity of warships and other government vessels and the peacetime right of freedom of navigation by Ukrainian military vessels. But in reaching this conclusion, the Tribunal diminished the military activities exemption. In a departure from the broader understanding of military activities evident in the 2016 Philippines v. China arbitration, the Tribunal found that the confrontation over innocent passage was a navigational issue, rather than one concerning a military activity, because innocent passage is a right enjoyed by all ships. The Tribunal also determined that Russia’s temporary suspension of innocent passage declared conveniently to halt the transit of Ukrainian warships was a law enforcement activity rather than a military activity. These factors led the Tribunal to conclude that Russia’s actions were “in the context of a law enforcement operation rather than a military operation.”
Editor note: This is Part II of a two-part post. See Part I here.
Part One of the blogpost examined the recent Russian decrees on a fast track procedure for conferring Russian nationality on inhabitants of Eastern Ukraine and explained international legal principles which govern such extraterritorial naturalisations.
III. Striking the Balance: International Legal Limits on Passportisation
The conflicting individual and governmental interests and the overarching global value of a stable repartition of jurisdictions are reconciled by posing specific legal limits on the power of a state to naturalise citizens of another state.
The Prohibition of an Arbitrary Refusal to Release One’s Nationals
The prohibition of arbitrary decisions concerning nationality issues has emerged as a standard of reference in the international law of nationality. The Report of the UN Secretary General, Human Rights and Arbitrary Deprivation of Nationality, 14 December 2009 (A/HRC/13/34), stated that “[T]he notion of arbitrariness could be interpreted to include not only acts that are against the law but, more broadly, elements of inappropriateness, injustice and lack of predictability also” (para. 25).
A state may not categorically and without any legitimate reason (i.e. arbitrarily) prevent its citizens from acquiring a different citizenship. Inversely, a state may validly oppose the naturalisation of its citizens if its governmental interests outweigh both the interests of the concerned natural persons and the interests of the naturalising state. In that case, the refusal to release its national would not be arbitrary. A state’s refusal to release a national who continues to reside within its own territory is presumptively not arbitrary.
The Requirement of a Factual Connection
International law has traditionally required that there be a factual relationship between the person to be naturalised and the naturalising state. It has never allowed a state to confer its nationality by naturalisation upon persons possessing the nationality of another state and to whom the conferring state has no factual relation at all. Read the rest of this entry…
I. Fast track to Russian nationality
On 24 April 2019, the Russian President issued an Executive Order identifying groups of persons entitled to a “fast-track procedure” when applying for Russian citizenship otherwise regulated by the Russian Law on Citizenship (Federal Law No. 62-FZ of 31 May 2002). The decree facilitates the acquisition of Russian nationality by residents from various districts of Ukraine’s Donetsk and Lugansk regions, notably without taking residency in Russia. The regions border Russia and are struck by a military conflict between the central government and separatist forces under heavy involvement of Russia. On 1st May 2019, the President issued a second “Executive Order on Certain Categories of Foreign Citizens and Stateless Persons Entitled to a Fast-Track Procedure when Applying for Russian Citizenship”. The new fast track procedure is potentially open to around 4 million people living in the conflict area of Eastern Ukraine.
In the Security Council of 25 April 2019, the representative of the Russian Federation explained “that there is a high demand for Russian citizenship among people from south-eastern Ukraine whose living conditions Kyiv has made intolerable. In other words, Russia’s legislative initiative is a response to the aspirations of many thousands of people. It is not we who are forcing them to become Russian citizens but rather they themselves who desire it. We are simply providing them with an opportunity and significantly simplifying the process. (…) Why was it done? The conflict in Donbas has been going on for five years. For five years, the inhabitants of Donbas have been deprived of the ability to exercise their human rights and freedoms in Ukraine. They were denied the right to vote in the recent presidential elections.” “[T]he residents of Donetsk and Luhansk (…) have been deprived of income sources, pensions and benefits that other Ukrainian citizens are entitled to. They would not have survived without Russia (…). The people of Donetsk and Luhansk deserve to have reliable State care and social protection once again. (…) They are getting none of that from the Ukrainian Government, and we therefore felt compelled to offer them assistance.” (Vassily A. Nebenzia, Security Council 8516th meeting, Verbatim Record, UN Doc S/PV.8516, p. 15-16). The decrees might also respond to the Ukrainian draft language law which establishes Ukrainian as the language of the state and relegates Russian to a regional language (Bill №5670-d, reading in Parliament on 25 April 2019, not yet in force ).
The recently elected President of Ukraine spoke of “another unprecedented interference of the Russian Federation in the internal affairs of an independent state, a brutal violation of sovereignty, territorial integrity and independence of Ukraine and a complete trampling upon its obligations in the framework of the Minsk agreements. In addition, the Kremlin therefore deliberately and cynically violates international humanitarian law, which prohibits the occupation authorities from changing the citizenship of the inhabitants of the occupied territories.” (24 April 2019).
The recent decrees inscribe themselves in an overall Russian policy of generously conferring its nationality on residents of those states which emerged from the break-up of the Soviet Union. In Crimea, an active Russian “passportisation” policy had allegedly been pursued since 1991, until the peninsula was annexed by Russia in 2014. In two breakaway territories of Georgia, Abkhazia and South Ossetia, passportisation was rampant especially around 2002 (see the analysis in: Independent International Fact-Finding Mission on the Conflict in Georgia, Report (“Tagliavini Report”), vol. II, Chapter 3). Russia also offers easy Russian nationality to inhabitants of Transnistria (in Moldowa).
This two part-blogpost shows that the Russian “passportisation” policy (i.e. the policy of conferring Russian nationality en masse to persons residing outside Russia) is in many respects exorbitant and risks to violate various principles of international law. Part One examines the governing principles, Part Two balances these principles, applies them to the current case, and examines the legal consequences of exorbitant naturalisations. Read the rest of this entry…
On Sunday 25 November 2018 Russian coast guard patrol boats, including the Don and the 630-ton Izumrud, first intercepted and later fired on three Ukrainian naval ships near the entrance to the Kerch Strait. Two Ukrainian sailors were injured, the Ukrainian ships seized and the crews arrested. The attack has been roundly condemned in the United States and around the world.
The Russian ships intercepted two Ukrainian Gyurza-M-class artillery boats, Berdyansk and Nikopol and a tugboat, Yany Kapu, as they sailed toward the Ukrainian port of Mariupol. Russian forces seized the vessels and arrested 24 crew members. The Don twice rammed the tugboat and the Russian vessels opened fire on the two smaller Ukrainian warships. The incident occurred in the territorial sea along the approaches to the Kerch Strait, which is bordered in the east by Russia and in the west by Russian-occupied Ukrainian Crimea. The Russian government stated that its forces fired only after the Ukrainian ships violated articles 19 and 21 of the United Nations Convention on the Law of the Sea (UNCLOS) concerning innocent passage in the territorial sea.
Exploring the legal circumstances of the incident requires selection between peacetime rules of the law of the sea and the law of naval warfare, which applies to international armed conflicts. This post concludes that the actual incident on the water is part of a continuing aggression by Russia against Ukraine, in violation of the UN Charter. While unlawful as a matter of the jus ad bellum, the incident would be a lawful in bello use of force by Russia in accordance with the law of naval warfare, notwithstanding Russia’s unlawful invasion of Crimea in 2014 or subsequent unlawful treatment of the Ukrainian sailors as common criminals rather than prisoners of war. In this case the law of naval warfare is lex specialis and supplants mutatis mutandis the peacetime rules of the international law of the sea for Russia and the Ukraine.
On October 4, the United Kingdom’s National Cyber Security Centre (NCSC), a division of the GCHQ, issued a news release attributing multiple cyber campaigns to Russia’s military intelligence service, the GRU. They were, according to the NCSC, designed to ‘undermine [the] international sporting institution WADA [World Anti-Doping Agency], disrupt transport systems in Ukraine, destabilise democracies and target businesses’.
The release was notable in two regards. As the campaigns were conducted by the GRU, an organ of the Russian government, Russia is legally responsible under the law of State responsibility for any violations of international law that may have occurred. Second, the release stated that the operations were ‘conducted in flagrant violation of international law’. Indeed, Foreign Secretary Jeremy Hunt, whom the release quoted, observed, ‘[t]his pattern of behaviour demonstrates their desire to operate without regard to international law or established norms and to do so with a feeling of impunity and without consequences’.
Unfortunately, neither the NCSC nor the Foreign Secretary delineated those rules of international law that Russia allegedly violated or otherwise undermined. In this post, we attempt to tease loose the legal significance of the operations by measuring them against the recently enunciated UK positions on international law in the cyber context. Attorney General Jeremy Wright set forth these positions in a 23 May Chatham House speech. We first highlight the UK approach to the key international law prohibitions that are relevant vis-à-vis the Russian operations. Second, we assess the operations themselves against the UK position on these legal rules. Finally, we conclude by making the point that legal policy decisions with respect to cyberspace may prove a double-edged sword. Compelling reasons may exist for adopting particular positions regarding international law norms in cyberspace, but seldom are those positions cost-free. In particular, we suggest that the United Kingdom’s rejection of a rule requiring respect for the sovereignty of other States eliminates its most defensible basis for arguing that the Russian cyber campaigns undermined international law. Other States should bear this in mind before following suit.
Ukrainian Eurobonds and Russia’s Compliance with International Law: Matters Suitable for Summary Judgment in the English Courts?
In mid-September the Court of Appeal of England and Wales handed down its judgment in Ukraine v The Law Debenture Trust Corporation P.L.C. (‘Ukraine v Law Debenture’), in which it decided Ukraine’s appeal against an order for summary judgment for the payment by Ukraine of just over USD 3 billion. The application for summary judgment followed Ukraine’s decision to stop making payments under notes it issued in 2013, which are held exclusively by Russia. Law Debenture Trust Corporation plc (‘Law Debenture’), a trustee acting at the direction of Russia, made the application on the basis of the trust deed by which the notes were constituted, which is governed by English law and which empowers the Russian Ministry of Finance to direct Law Debenture to take enforcement proceedings against Ukraine. The domestic nature of the claim notwithstanding, Ukraine argued, inter alia, that Russia violated international law and that this provided grounds to refuse payment under the notes. It is on the Court of Appeal’s approach to these arguments that this post focuses.
Ukraine’s arguments and international law
It is in relation to two of Ukraine’s arguments – a defence of duress; and entitlement to refuse payment on the basis that it was taking a countermeasure against Russia – that Russia’s compliance with international law was called into question. The significance of Russia’s compliance with international law to the latter argument is clear. The relevance of international law to the former argument resulted from Ukraine’s claim that the issuance of notes ‘was procured by unlawful and illegitimate threats made, and pressure exerted, by Russia, such as to vitiate the consent of Ukraine…’ (Ukraine v Law Debenture para 17). More specifically, Ukraine alleged that Russia made threats which violated, inter alia, the prohibition on the threat of force and relied also on the imposition of and threat of allegedly unlawful restrictive trade measures as further evidence of duress (ibid para 166).
According to Blair J, neither the defence of duress nor the countermeasure-based argument could be considered on their merits, since the foreign act of state doctrine renders them both non-justiciable. ‘Ukraine’s case to the contrary has no real prospect of success’ (see here, paras 295, 308 and 365). While the Court of Appeal also dismissed Ukraine’s countermeasure-based argument, it did so for a different reason: the absence of a domestic legal basis which permits or requires an English court to ‘examin[e] it or pronounc[e] upon [its] merits’ (ibid para 189). In relation to the defence of duress, however, which has a domestic legal basis and to which, in the court’s view, Russia’s compliance with international law is relevant, the court held Ukraine to have ‘a good arguable case’ that the foreign act of state doctrine is inapplicable (Ukraine v Law Debenture, para 181). Read the rest of this entry…