Crimea after Cyprus v. Turkey: Just Satisfaction for Unlawful Annexation?

On 13 March 2014 Ukraine lodged an inter-state application under Article 33 of the European Convention against the Russian Federation. Philip Leach has addressed in this forum the likely implications, suggesting that the occupation of Crimea will present a situation for the European Court similar to that in Ilaşcu v. Moldova and Russia.

The other decided case of the European Court that writers are speculating may be relevant to Ukraine is Cyprus v. Turkey. The Court’s just satisfaction judgment in Cyprus v. Turkey, adopted on 12 May 2014, is the first ever to award just satisfaction in an inter-State case under the Convention. Judge Pinto de Albuquerque and Judge Vučinić declared the judgment “the most important contribution to peace in Europe in the history of the European Court of Human Rights.”

What is important about Cyprus v. Turkey? And how, if at all, might Ukraine use the just satisfaction judgment to advance its own application against Russia?

Cyprus v. Turkey was referred to the Court in 1999, and the Court delivered its principal judgment in 2001. Cyprus’s complaints arose out of the Turkish armed intervention in northern Cyprus in July and August 1974 and which led to the “continuing division of the territory of Cyprus” (para. 13). Though nobody (except Turkey) recognized the separation of territory from the Republic of Cyprus, Turkey was held to have jurisdiction in northern Cyprus for purposes of the Convention and thus Turkey’s conduct there entailed Turkey’s responsibility under the Convention (Dispositif, para. 4). This holding indeed is significant to Ukraine, as it makes clear that non-recognition is not inconsistent with applying the rules and procedures of the Convention against the State which purports to have effected the change of boundaries by force. Applied to Crimea, the Russian Federation is answerable under the Convention for its conduct in that territory, and to hold Russia answerable does nothing to qualify or erode the general non-recognition of the unlawful annexation.

The 12 May judgment, in determining that just satisfaction under Article 41 of the Convention is available in an inter-State case, certainly broke new ground for the Court. One group of concurring judges said that the judgment on just satisfaction “heralds a new era in the enforcement of human rights by the Court and marks an important step in ensuring respect for the rule of law in Europe” (Joint concurring opinion of Judges Zupančič, Gyulumyan, David Thór Björgvinsson, Nicolaou, Sajó, Lazarova Trajkovska, Power-Forde, Vučinić and Pinto de Albuquerque). Another concurring opinion went further still:

The message to member States of the Council of Europe is clear: those member States that wage war, invade or support foreign armed intervention in other member States must pay for their unlawful actions and the consequences of their actions, and the victims, their families and the States of their nationality have a vested and enforceable right to be fully and fully compensated by the responsible warring State. War and its tragic consequences are no longer tolerable in Europe and those member States that do not comply with this principle must be made judicially accountable for their actions, without prejudice to additional political consequences. (Concurring Opinion of Judge Pinto de Albuquerque, joined by Judge Vučinić, para. 1).

This concurrence should not be read in isolation of wider circumstances. The “responsible warring State” in that case was Turkey but Europe as at 12 May 2014 had another State which it would be hard to exclude from the same category. The inference to be drawn is that the just satisfaction judgment in Cyprus v. Turkey contains findings applicable to Russia’s conduct in Crimea.

Philippe Sands, as interviewed in The Guardian, certainly thinks so:

It’s a strong signal that the passage of time will not diminish the consequences or costs of illegal occupation. It has obvious relevance to the situation in Abkhazia and South Ossetia, which are occupied parts of Georgia, and Crimea, which is occupied Ukraine.

I would imagine it opens the door to claims arising from that kind of occupation. It signals that the court will not back off on issues like this over time.

There is no doubt that the judgment is a “strong signal” in certain ways. A considerable time had elapsed since the merits judgment in Cyprus v. Turkey, and a very considerable time indeed since Turkey had committed the underlying breach—over a decade and forty years respectively. To be effective against a stubborn violator, international law and its institutions must hold out against the tendency to accommodate facts over time. Ilaşcu, by having made clear that the relaxation of a State’s protests does not relinquish the State’s jurisdiction (8 July 2004, para. 344), and Cyprus v. Turkey, by making clear that the passage of time does not weaken the potential remedies, together provide a bulwark against the “normative force of the factual” (Jellinek, pp. 337-9).

That said, it remains to be established what violations of the Convention Russia’s conduct in Crimea would constitute. In northern Cyprus, there was the mass displacement of the Greek Cypriot population and the seizure and putative transfer of large amounts of property. There were also forced disappearances of persons on a large scale. Turkey’s conduct entailed a series of acts which gave rise to a large number of individual claims under the Convention. It is not as yet clear whether Russia has displaced people from Crimea, perpetrated forced disappearances, or otherwise violated Convention rights of individuals in Crimea. The initial signs nevertheless are troubling (see, e.g., Chile’s statement in the Security Council; PACE res. 1988 (2014), para. 12). The Court evidently came to the same view, having quickly adopted interim measures under Rule 39 with reference to Convention Articles 2 and 3.

The Court in Cyprus v. Turkey (para. 37) referred to Austria v. Italy, where the European Commission of Human Rights in 1961 had said that a State bringing a case under the inter-State mechanism was not “exercising a right of action for the purpose of enforcing its own rights, but rather… bringing before the Commission an alleged violation of the public order of Europe” (p. 20). Russia’s annexation of Crimea is a “violation of the public order of Europe” if any act could be. But in Austria v. Italy and in Cyprus v. Turkey alike, the applicant State credibly alleged that individuals had been the victims of particular violations of Convention rights. The Court in Cyprus v. Turkey admonished that “it must be always kept in mind that, according to the very nature of the Convention, it is the individual, and not the State, who is directly or indirectly harmed and primarily ‘injured’ by a violation of one or several Convention rights” (para. 46). Referring to the ICJ’s Diallo compensation phase judgment (para. 57), the European Court added that any just satisfaction given in an inter-State case must be transferred to the individuals whose rights were violated. While this was a point about the procedures to be followed post-judgment, it underscores the tight connection to individual rights.

The Cyprus v. Turkey just satisfaction judgment is noteworthy for its placement of the inter-State procedure under the European Convention squarely within the broader framework of public international law. No claim to just satisfaction had ever before been awarded in an inter-State case; the award in Cyprus v. Turkey, €90 million, was large in comparison to awards of compensation in other judgments. The Court made clear that, as had been understood under public international law generally since Factory at Chorzów, “an international court or tribunal which has jurisdiction with respect to a claim of State responsibility has, as an aspect of that jurisdiction, the power to award compensation for damage suffered”(Judgment, May 14, 2014, para. 41). Article 41 of the Convention stipulates that in the case of a violation of the Convention where the internal law of the State in breach allows only partial reparation, the Court “shall, if necessary, afford just satisfaction to the injured party,” a provision which Turkey had argued strenuously should be limited to cases brought by individuals (see paras. 36-8). The Court rejected Turkey’s position that Article 41 could not operate in an inter-State case. This presents the possibility of the considerable further growth of an awards practice which up to the Cyprus v. Turkey just satisfaction judgment had not developed; the Court’s approach to just satisfaction is “[e]volving case by case” (para. 56, quoting Varnava and Others v. Turkey, para. 224).

But to make clear that the law of State responsibility operates irrespective of whether a claim is brought by an individual or under the inter-State procedure is not to say that all of the primary rules of public international law are now incorporated into the European human rights system. It is not a system for the general management of inter-State relations. It is not a system for bringing claims for breach of the prohibition against threat or use of force or for the forcible seizure of territory as such. To use the system to challenge an act of aggression, it remains necessary for the State (or individual) to demonstrate the connection to one or more of the applicable protected rights. The judgment well may “open[…] the door to claims arising from that kind of occupation,” but it is necessary to be clear precisely what kind of occupation that is and, more specifically, what kind of breaches occupation has carried in its train.

Still, that a State may obtain a substantial monetary award for a violation of one or more of the rights under the Convention and its Protocols is a significant step. It at least potentially broadens the remedies that Ukraine might seek against Russia.