Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR

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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.

Last year my colleague Tatjana Papic and I published an article in the ICLQ on the application of the ECHR to contested territories, such as Crimea. We argued in favour of the wisdom of the Court’s initial approach to such territories, articulated in its Loizidou judgment regarding Northern Cyprus, in which it held that ‘the responsibility of a Contracting Party could also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control… (emphasis added).’ The Court thus avoided – and properly so – the issue of whether Turkey violated the UN Charter when it invaded Cyprus. Not, again, because this is a question that cannot be legally answered, but because it is not indispensable that it be answered, and doing so may even run counter to the Court’s mission of protecting human rights.

One hugely complicating factor, however, has been the Court’s Ilascu jurisprudence, in which the Court espoused the view that two positive obligations are vested solely in a state’s sovereign title over territory, even if it loses control over that territory: first, that it has to take steps to re-establish its control, and second, that it has to take (limited) steps to protect individuals from the conduct of third parties, e.g. through diplomatic means. Despite their apparent human rights-friendliness, neither of these two obligations survive serious scrutiny. The former is simultaneously potentially both very grave and meaningless – grave because it signals to states like (say) Serbia that they should re-assume control over separatist entities such as Kosovo (with all the possible dangers that might arise therefrom), and meaningless, because the Court’s standard of review regarding compliance with this obligation is so deferential that the obligation can never really be violated. The latter obligation is almost as meaningless. Unless I’m mistaken, the only case in which the Court found that positive residual obligation to have been violated is Ilascu itself. And thus, for very little practical benefit, the Court undermined its Loizidou holding that the notion of Article 1 jurisdiction is a purely factual one, resting on the fact of control over territory rather than on any right to exercise such control.

Logically, in the Ukraine v. Russia re Crimea case the Court need not reach the issue of sovereignty per Ilascu simply because the case does not concern any obligations of Ukraine, but only those of Russia. However, it is evident after the Grand Chamber hearing that there are other ways through which the sovereignty (and related jus ad bellum) questions can come before the Court. This (longish) two-part post looks at these different avenues, arguing (again) that the Court would be wise to avoid them if at all possible.

Arguments of the parties

At the hearing, the judges explicitly asked the parties to explain their position on whether the Court should reach the issues of sovereignty over Crimea and any UN Charter violations on the part of Russia, in order to establish whether Russia had jurisdiction over Crimea in the sense of Article 1 ECHR. As one could expect (and in fact as Tatjana and I predicted in our ICLQ piece) Russia did not dispute that it had jurisdiction over Crimea, since doing so would be inconsistent not only with the facts on the ground but also (politically) with its claim of sovereignty. But Russia was adamant that the Court should not pronounce itself on the sovereignty dispute between the parties, arguing that this was a purely political issue over which the Court did not have jurisdiction.

Now, obviously, the question of sovereignty is political, but so is everything else about this case. As the ICJ has consistently held, the fact that an interstate dispute has political dimensions, as it inevitably does, does not mean that the dispute is not capable of legal determination. The issue here is not whether the dispute is legal or not legal, but rather whether the European Court of Human Rights is the institution best placed to make such a determination.

Counsel for Ukraine, on the other hand, expressly invited the Court to rule that Crimea remained Ukrainian territory. Counsel did so by employing two lines of argument. First, that by ruling on these issues the Court would simply be joining the mainstream or consensus position of the international community, including the position of the other organs of the Council of Europe. This, of course, is true. But one can as well ask what added symbolic value would the Court’s holding on Russia’s (lack of) sovereignty genuinely have. Not only would the Court adding its voice to the general chorus of outrage over Crimea have little practical value, but as explained above it might have significant costs for human rights protection in Russia as a whole, not just Crimea. Crucially, while the European Court is a part of the international legal system, it is a human rights court, not a general international court, and there are other institutions of that system whose primary task is to apply these other areas of international law.

Second, counsel for Ukraine argued that the Court logically had to pronounce on the sovereignty question in order to define the juridical nature of Russia’s (uncontested) jurisdiction, as being either territorial or extraterritorial. But this argument rests on a fallacy – partly one of the Court’s own making, from Bankovic onwards – that there is some kind of profound difference in nature between Article 1 jurisdiction which is territorial and that which is extraterritorial. On the contrary, both should be regarded as being of the same, factual nature –based in the exercise of control over territory, rather than in the right to exercise such control.

What the Court should do  

In sum, the Court can in my view quite reasonably say – and should say – that per Loizidou Russia has control, and thus jurisdiction, over Crimea, regardless of whether it obtained such control lawfully or unlawfully. That Russia does not dispute that it has jurisdiction is simply an added bonus. The Court could then add for even more clarity that its finding of jurisdiction is not an implicit determination of the sovereignty dispute between the parties. This is in my view the most sensible way in which the Article 1 applicability question should be resolved.

The trickier issue in the case is from what precise moment in time Russia obtained such control as a matter of fact. This is relevant primarily for the period from late February 2014 (when a new pro-Russian local government took power) to 18 March 2014 (the date of annexation). The problem here will be one of benchmarks of control that the Court chooses to employ, especially in a situation during which some Ukrainian authorities, including members of the armed forces, remained in Crimea. Similarly, much will depend on the evidence it will use (i.e. which has been furnished by the parties) to find that these benchmarks have been satisfied (or not). In light of both the need to avoid a vacuum in human rights protection and the rather loose approach that the Court adopted to the issue of the relationship between Armenia and Nagorno Karabakh in Chiragov it is more likely than not that the Court will find that Russia was in control of Crimea even before 18 March 2014 – but again this will depend to the greatest extent on the evidence that Ukraine manages to present to the Court on the extent of Russia’s presence on the ground.

In principle, therefore, the Court’s Article 1 jurisprudence would comfortably allow it to avoid deciding on sovereignty over Crimea, even without any overruling or reinterpretation of Ilascu. But this is unfortunately not the end of the story.  A further problem lies in some of the claims that Ukraine makes on the merits of the case which might logically require a determination of sovereignty because of how the particular right, and the alleged violations of that right, are framed. In my next post I will look at two such issues:  the mass automatic naturalization of Ukrainian citizens that Russia implemented in Crimea, and an individual’s right to enter their own country.

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Kushtrim Istrefi says

September 23, 2019

Dear Marko,

Many thanks for this interesting post.

Two minor remarks in relation to your blog and the article in the ICLQ. Here you mention that the ECtHR’s approach is, among others, grave because “it signals to states like Serbia that they should re-assume control over separatist entities such as Kosovo”. I am not sure this hypothetical scenario is apposite because the Court in Azemi v. Serbia has already disfavored Serbia’s de jure jurisdiction over Kosovo (I think we both argue in our articles that the Court has distinguished the case of Kosovo from other cases).

Also, I am not sure whether Serbia (unlike Russia in the Crimean case) has ever claimed sovereign title over Kosovo before the ECtHR. In a more recent judgment related to Kosovo, the Strasbourg Court once again touched on the issue of the authorities responsible for enforcing laws and securing human rights in Kosovo. In D.L. v. Austria, a case concerning the extradition of a citizen of Serbia from Austria to Kosovo, neither the ECtHR nor the Government of Serbia, as a third-party intervener, considered whether any authority other than Kosovo’s institutions exercised any public power and thus had the duty to ensure the human rights of the applicant in Kosovo (see further Furthermore, the Serbian Government went a step further by finding problematic the fact that the Austrian Government had not required diplomatic assurances from Kosovo’s authorities with respect to the applicant (para 51). This suggests that Kosovo’s authorities had the capacity to engage in such diplomatic functions.

All the best,

Marko Milanovic says

September 24, 2019

Hi Kushtrim,

Many thanks for the comment. I do think that Kosovo is distinguishable from Crimea (or the TRNC etc) in that it has an arguable claim to statehood, whereas the other entities do not. But this doesn't change the fact that a dispute exists about its statehood, i.e. that Serbia continues to claim sovereignty over the territory, and is yet to renounce that claim. I really doubt that the DL case does anything meaningful in that regard, since it is clear that Kosovo and Austria do in fact maintain diplomatic relations. So my point is simply this: the Court should not signal to states that they have a duty to re-assume control over territories which they claim and which they used to control, since this legitimizes in HUMAN RIGHTS TERMS potentially forcible attempts to obtain such control, with many bad consequences that could follow thereform. And I don't think the plausibility of any claim to statehood or sovereignty should be the principal consideration here, i.e. that we should distinguish Kosovo from say the Donbas or Crimea, since this will always be subject to some level of dispute.


Kushtrim Istrefi says

September 24, 2019

Hi Marko,

Thank you for your reply.

In my earlier comment I aimed to clarify that the ECtHR’s case-law on Kosovo does not suggest that Serbia has positive obligations (to re-assume control) over Kosovo (despite Serbia’s claim over Kosovo). I see your argument that the differentiation of cases may not be the adequate approach.

I do agree with you that the positive obligation to re-assume control over territories may send different signals to States, and the Court in Ilascu did not exclude forcible attempt in relation to that case. One way of looking at it is, as you suggest, to abandon the discussion on sovereign title. Another way the Court could mitigate the forcible argument is by making clear that a State may use all diplomatic means (as opposed to all means) to re-assume control, and as a next step focus more on the efforts that a State should make to end the violation of the applicant’s rights.

Aditya Roy says

September 24, 2019

Dear Marko,
Very good analysis of the issues
Pertaining to the dispute.
I have two questions:
1. Going by the Competence Competence principle any tribunal has the competence to decide its jurisdiction, if the answer is in affirmative, is their any rule/mechanism which can restrict the authority of the court in terms of the applicable law before it ? International law is a one legal system then how can the regime under it develop in silos ?
2. Can the States exercise jurisdiction without being a sovereign ?

Aditya Roy

Marko Milanovic says

September 24, 2019

Hi Aditya,

The Court has jurisdiction only over violations of the ECHR, not of any other rule of international law. This is because its jurisdiction is based on state consent, and this is what states have consented to. However the Court certainly has jurisdiction to apply other rules of international law, to the extent it needs to in assessing violations of the ECHR. On that basis it CAN look into sovereignty over Crimea. The issue I address here is whether it SHOULD do so (and it shouldn't).

Re your second question, a state certainly can exercise its jurisdiction abroad without being the sovereign of the territory in which it is doing so (e.g. the UK in Iraq).