Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part II: Issues Lurking on the Merits

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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.

Mass naturalization

After its annexation of Crimea, Russia adopted legislation which automatically imposed Russian nationality on the residents of the territory who did not, within a short period, formally state in a prescribed procedure that they did not want to become Russian nationals. Obviously this policy was an integral part of Russia’s strategy to solidify its control and claim of sovereignty over the territory. Russia has resorted to ‘passportization’ policies before, e.g. with regard to separatist entities in Georgia, but the imposition of citizenship in Crimea (even with the possibility of opt-out) is categorically different and again directly tied to its claim of sovereignty. It has been reported that in practice the possibility to opt-out was severely limited and that only some 3,500 Crimean residents did so (see more here and here).

The question, therefore, is whether the imposition of Russian citizenship on individuals who did not want it, but who could not realistically refuse it, is a violation of these individuals’ rights under the ECHR. And it is here that, as a matter of principle, one could say that because Russia is not the rightful sovereign of Crimea, it has no authority to impose its nationality on the inhabitants of the territory.  

While this argument is simple and appealing, it runs into several difficulties beyond the mere undesirability of a human rights court pronouncing on disputes over territorial sovereignty. First, as framed above the argument is actually about the rights of Ukraine as a state, rather than about the rights of individuals qua individuals. Second, the ECHR actually has no dedicated provision on a human right to nationality. Third, accordingly, the Court’s has repeatedly stated in its case law that nationality issues are almost entirely left to domestic law. Fourth, human rights jurisprudence has generally focused on arbitrary deprivations of nationality (e.g. today in the counterterrorism context and ISIS fighters returning to their countries of origin). But it has not seriously engaged with unjustified impositions of nationality. Fifth, there are plenty of examples in which domestic legislation ‘imposes’ citizenship on individuals involuntarily and does so extraterritorially (e.g. the automatic grant of citizenship to children born abroad, whether jus sanguinis or jus soli, in which neither the parents nor the child have any say on the matter).

Thus, it seems to me much more sensible to treat the question of mass or automatic naturalization not as a human rights violation as such, but as part of a wider pattern of conduct on behalf of Russia that results in a human rights violation. That violation is not in the fact that a person in Crimea who did not want a Russian passport can suddenly get one, but in the fact that, had that person refused Russian nationality, he or she would be subjected to numerous detrimental consequences in their daily life, as a foreigner in their own country. It is the imposition of such consequences, whether to persons who refused Russian nationality or to those who got it but did not want it – ranging from difficulties in accessing public services to compulsory military service in the Russian armed forces for the male inhabitants – which may result in human rights violations. The most appropriate right through which such adverse consequences could be assessed is the right to private and family life in Article 8 ECHR, which has been extensively litigated in the immigration context in particular.

An important added angle is that of non-discrimination, i.e. reading Article 8 together with Article 14 ECHR. The Court could look at equality issues both from the standpoint of discrimination on the basis of nationality and that on the basis of language and ethnicity, e.g. with regard to the position of the Crimean Tatars. In particular, the Court could thus (if the facts bear it out) dispense with any arguments by Russia that it was simply enforcing immigration controls on its territory. Even on the assumption that Russia is the rightful sovereign of Crimea, and that individuals who refused Russian nationality are properly to be considered as foreigners subject to immigration restrictions, they are not in the same position as just any other foreigners in the Russian Federation. Crimea is where the individuals affected were born and spent most of their lives, and under the circumstances it is perfectly understandable why they would not express their affiliation with the Russian state. And per the Court’s non-discrimination law, equality does not mean simply treating those who are in the same position in the same way, but also treating those who are in a significantly different position differently (Thlimmenos v. Greece, para. 44).

The right to return to one’s own country

Let us now move to the second set of rights for which the sovereignty question is not easily avoided. Article 3 of Protocol 4 to the ECHR, entitled ‘Prohibition of expulsion of nationals’, thus provides that:

  1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.
  2. No one shall be deprived of the right to enter the territory of the State of which he is a national.

Clearly the purpose of this provision is to prevent a state from expelling its own nationals, or from preventing their return, whether as a punishment or otherwise (again, consider the problem of returning ISIS fighters etc). But textually at least there is no impediment to applying this provision to third states in control of another state’s territory, expelling or preventing the return of individuals who are not their own nationals – e.g. if the UK, while in occupation of Iraq, expelled Iraqi nationals from Iraq or prevented them from returning thereto, this provision could in principle be engaged.

If that is the case, Russia could be held liable under Art. 3 P4 for expelling Ukrainian nationals from Crimea, or for preventing them from returning to Crimea, if and only if Crimea was Ukrainian sovereign territory. In other words, if Russia say prevented a Crimean Tatar who is a Ukrainian national from returning to Crimea, which is a ‘territory of the State of which he is a national,’ Russia would be in violation of Art. 3(2) P4. Logically, the only way in which the Court could decide on a violation of Art. 3 P4 would be to decide the sovereignty issue as a preliminary question.

One way out of that dilemma would be for the Court to limit the applicability of the right solely to situations in which the state is expelling, or preventing the return of, its own nationals. As we have seen, the text of the provision is not so limited. However, the drafting history of Protocol 4 would support a more restrictive interpretation. Not only does the Explanatory Report to Protocol 4 not discuss the scenario of a contested territory such as Crimea (p. 8 ff), except for a brief and unclear reference to East Germany (para. 30), but at para. 29 it notes that ‘[t]he Committee agreed that the terms of paragraph 2 could be invoked only in relation to the State of which the victim of any violation of this provision was a national.’

Alternatively, the Court could simply refuse to examine a violation of Art. 3 P4, in order to avoid having to decide on the sovereignty question. According to its longstanding jurisprudence, ‘the Court is master of the characterisation to be given in law to the facts of the case, [and] it does not consider itself bound by the characterisation given by the applicant or the Government.’ (See, among many others, Scoppola v. Italy, para. 54). In other words, if it wishes to do so the Court can simply recast any violations of Art. 3 P4 alleged by Ukraine as violations of some other Convention right.

For example, if the facts of the case so warrant, the Court could examine the case under Art. 4, rather than Art. 3, of Protocol 4. Under that article, the ‘[c]ollective expulsion of aliens is prohibited.’ Unlike Art. 3, Art. 4 does not make any reference to a specific territory, and does not logically require any determination of sovereignty, implicit or express, over that territory. Its only requirement is nationality, i.e. that the person being expelled is not a national of the state which is expelling him. Indeed, in some of its more recent judgments the Court has been clear that Art. 4 has an extraterritorial dimension, i.e. that a state can violate it by expelling aliens while acting outside its own territory. It did so, for instance, in Hirsi Jamaa and Others v. Italy, in which it held that pushback operations by Italy against migrant ships on the high seas constituted a collective expulsion in the sense of Art. 4 P4. The Court thus not only noted (para. 173) the absence of any reference to a specific territory in Art. 4, but also that (para. 178):

Where, however, as in the instant case, the Court has found that a Contracting State has, exceptionally, exercised its jurisdiction outside its national territory, it does not see any obstacle to accepting that the exercise of extraterritorial jurisdiction by that State took the form of collective expulsion. To conclude otherwise, and to afford that last notion a strictly territorial scope, would result in a discrepancy between the scope of application of the Convention as such and that of Article 4 of Protocol No. 4, which would go against the principle that the Convention must be interpreted as a whole.

If, therefore, the Court is comfortable in ruling under Art. 1 of the Convention that Russia has jurisdiction in Crimea, without deciding the issue of sovereignty over Crimea, then there should be no obstacle in principle in applying Art. 4 of Protocol 4 to any expulsion of Ukrainian nationals from Crimea, without again there being any need to decide the sovereignty issue.

Alternatively, the Court could, as suggested above, examine the case from the standpoint of Art. 8 ECHR, if need be as read together with the prohibition of discrimination in Art. 14.

This is in fact precisely what the Court has done in Slivenko v. Latvia, a sort of a reverse-Crimea scenario. Upon the resumption of its independence from the Soviet Union, Latvia concluded a treaty with Russia pursuant to which Russian soldiers and their families would be repatriated to Russia. This included individuals, like the applicants, who were born in or spent almost their whole lives in Latvia, but nonetheless had to move to Russia.

In its admissibility decision, the Grand Chamber declared the applicants’ complaints under Art. 3 P4 inadmissible, on the grounds that the applicants were never Latvian nationals and that the provision was accordingly inapplicable. In effect, the Court held that the question of nationality was almost entirely within the purview of Latvian domestic law, and refused to create some kind of functional notion of nationality on the basis of the applicants’ history of life in and ties to Latvia. However, in its judgment on the merits, at para. 113 ff, the Court found that Latvia had violated the applicants’ rights under Article 8 of the Convention, inter alia in light of the fact that the applicants had spent their whole lives in Latvia and that their personal circumstances were not sufficiently taken into account, while more beneficial differential treatment was provided to other groups.


Some issues are best avoided in human rights litigation; territorial sovereignty is one of them. If human rights bodies (or for that matter investment tribunals) can perform their core mission without touching such issues, then, as Tatjana Papic and I have argued, such avoidance is normally the wiser course of action. The European Court is a human rights institution, not an enforcer of all of international law. It is obvious to everyone concerned that there is an underlying dispute between Ukraine and Russia regarding Crimea, and indeed that this dispute is the root cause of the human rights violations at stake. But neither the Court nor any other human rights body can meaningfully affect the sovereignty dispute over Crimea. To use a medical analogy, whatever treatment the Court can provide here can only be symptomatic, not curative.

Again, to be clear, I am aware of the apology v. utopia dynamics at play here. And I have no problem with human rights bodies provoking backlash from powerful states, if they do so with a degree of considered pragmatism and with the purpose of advancing human rights protection. But if the point of provocative action is only to advance the narrative of the displaced sovereign, however otherwise just or legitimate (e.g. Cyprus, Ukraine), it should not be the business of human rights bodies to get into that mess even if the legal issue is easy (as it indeed is for Crimea).

 As I have shown above, the avoidance of the sovereignty issue in Ukraine v. Russia requires no great contortions on the part of the Court. It has several plausible options on the table, whether under its Article 1 jurisprudence or with regard to specific Convention rights. Most importantly, the Court can avoid the sovereignty issue without diminishing the expressive or symbolic nature of any finding of a violation of the rights of the individuals concerned. Assuming that the evidence adduced before the Court ultimately bears this out, it can properly describe everything that’s wrong about their mistreatment at the hands of the Russian state without venturing into matters for which it can easily be criticised as lacking in legitimacy or competence. Obviously, backlash against the Court for any adverse judgment against Russia is a given, but I genuinely fail to see any useful purpose in the Court facilitating such backlash by applying rules of international law which protect the rights of states, and not those of individuals. Hopefully it will resist the temptation to do so.

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Jessica Gavron, Legal Director, EHRAC says

September 24, 2019

Dear Marko
Thank you for these very interesting blogs. I agree that the jurisdictional issue under Article 1 with respect to Crimea is uncontroversial as Russia has formally incorporated Crimea into the Russian Federation by the 18 March 2014 Treaty on the Accession of the Republic of Crimea to the Russian Federation, annexing the peninsula to the Russian Federation. Therefore to determine the applicability of Article 1 the Court, as you argue, does not need necessarily to look behind Russia's undisputed and acknowledged control of the territory. I also agree that the forced citizenship issues relate to detriment and are appropriately brought under Article 8. However, we (The European Human Rights Advocacy Centre, 'EHRAC') have argued in forced citizenship cases that the Court does need to address the prevailing factual situation in Crimea, and this involves clarifying its legal status under international law, in order to determine the relevant applicable law to be taken into consideration by the Court. For instance in the context of an occupation by Russia, in which sovereignty continues to legally reside with Ukraine, Crimean citizens have the status of 'protected persons' under international humanitarian law. In such circumstances, the Convention and the international law of occupation under IHL can be considered complementary: where the law of occupation establishes explicit rules designed for a given situation, the Convention may be interpreted or accommodated, as far as possible, with the requirements of the former; or alternatively, the Court may at least be informed by the requirements of the law of occupation. This is supported by the Court's own jurisprudence (eg Demir and Baykara v Turkey, App. 34503/97 and Hassan v The UK, App. 29750/09). In Hassan the Court directly incorporated a provision of the Geneva Conventions into Article 5 of the Convention in an arguably more contentious context. Geneva Convention IV Article 47 and Hague Regulation 1907 Article 45, among other provisions, are clearly relevant to claims of forced citizenship. This context is also pertinent to analysis of the legitimacy of the law imposing Russian Citizenship under Article 8. I don't quite follow why the Court, should it duck the sovereignty issue, would consider the position of Ukrainians who renounce Russian citizenship to be 'foreigners in their own country' under Article 8 but avoid the issue of 'Ukrainians nationals expelled from their own country' under Article 3 Protocol 4.

Marko Milanovic says

September 24, 2019

Hi Jessica,

Many thanks for this. You are clearly correct that, IF the Court wants to apply the IHL of belligerent occupation in conjunction with the ECHR, as informing the interpretation of some of the rules in the ECHR, it would have to determine the sovereignty issue over Crimea. This is simply because occupation is defined as the exercise of control by a state over the territory belonging to another state, in the absence of the latter's consent. Therefore, occupation can only exist, and the law of occupation apply, if Russia is not the rightful sovereign of Crimea.

So, could the Court do this? Yes. Should it do it? No. I am not aware of any specific issue arising in this case in which the Court would NEED to apply the IHL of occupation in order to determine that an ECHR violation existed, where IHL is so relevant that any application of the ECHR alone would not be genuinely meaningful. Or, to put this differently, the Court can apply the ECHR without applying IHL (as it did e.g. in the Chechen cases) or more precisely the occupation-specific rules of IHL,and can still find all of the violations of the Convention it wants do, WITHOUT determining the sovereignty issue and applying the law of belligerent occupation.

To be clear, I am saying that the Court can apply Article 8 ECHR (and possibly also Art 14 and Art 4 P4) for BOTH Ukrainian nationals present in Crimea AND Ukrainian nationals expelled from/prevented from returning to Crimea. I'm not saying the rights of any of the two groups should be ignored by the Court. But the Court can address these violations without looking at sovereignty and without applying IHL.

Totally agree btw re forced citizenship and IHL, but that again is an IHL violation, and not every IHL violation is ipso facto a violation of the ECHR.

Kravtsov Ivan says

September 27, 2019

Thanks Marco!
Excellent article.

There is no Russian sovereignty in Crimea, but there are Russian laws in force, residents of Crimea stand in queues for Russian passports, get them for their children, take part in Russian universities, pass Russian exams, pray in Russian churches, serve in the Russian army, participate in Russian elections, sit in the Russian Parliament. I think you're right. The ECHR should avoid this issue.