Of Parties, Third Parties, and Treaty Interpretation: Ukraine v. Russia (X) before the European Court of Human Rights

States are currently (re-)discovering their legal possibilities to express solidarity with Ukraine in its ‘lawfare’ against Russia. Following a joint statement of 41 States and the EU calling ‘upon the international community to explore all options to support Ukraine in its proceedings before the ICJ’, a large number of States have requested to intervene in The Hague.

Meanwhile, an even greater wave of intervention requests has reached the European Court of Human Rights (ECtHR): more than half of all member States have expressed interest in intervening as third-party in Ukraine’s application concerning the Russian full-scale invasion in February 2022. It remains interesting to see the final list of intervening States and their geographic relationship with Russia.

In this post, we analyse the value of the unprecedented number of third-State interventions concerning Ukraine v. Russia (X) (11055/22), a value that certainly goes beyond a mere expression of solidarity with Ukraine. Not only are these third-party interventions a timely opportunity for States to express their support for the European regional human rights system and convey legitimacy to the later judgment. The procedural instrument under Art. 36 § 2 ECHR also provides States the prime opportunity to express their views on the interaction of international humanitarian law and human rights law in the wake of Georgia v. Russia (II). In this vein, the Geneva Academy of International Humanitarian Law and Human Rights has also requested leave to intervene.

Ukraine and Russia in Strasbourg

Following Russia’s expulsion as a member State from the Council of Europe on 16 March 2022, the ECHR has ceased to apply to the Russian Federation. However, in line with the procedural rules on expulsion, Russia remained bound by the ECHR until 16 September 2022. The ECtHR retains jurisdiction to hear cases against the Russian Federation concerning violations that have occurred before said date. The Court has yet to clarify how it intends to go ahead with the thousands of individual applications and several inter-State cases against Russia. The more member States formally engage with the proceedings, the more legitimate it is for the Court to devote its scarce resources to deciding this extremely challenging case.

Since 2014, Ukraine has brought no less than ten inter-State applications against Russia before the ECtHR. With the exception of the Netherlands, no ECHR State party has formally engaged with Ukraine’s first nine applications. Concerning the downing of flight MH-17, the Netherlands initially supported several individual applications as a third-party, and later even filed its own complaint (28535/20), which was then merged by the Court into Ukraine and The Netherlands v. Russia (8019/16, 43800/14 and 28525/20). However, it remains particularly striking that no other State whose nationals were killed in the MH-17 disaster formally entered the proceedings, as Geir Ulfstein and Isabella Risini noted. Similarly, even though the case Ukraine v. Russia (IX) (10691/21) concerns the use of polonium and novichok on the territory of several European countries, it seems like no State felt compelled to intervene.

Finally, the case Ukraine v. Russia (X) (11055/22) refers to the full-scale invasion of Russian troops of the entire Ukrainian territory. Shortly after the start of this military operation, Ukraine applied for interim measures, which the Court granted. Subsequently, Ukraine submitted a full application in June. Since then, several overlapping individual applications under Art. 34 ECHR have been filed.

Emerging engagement of other State parties with Ukraine v. Russia X

With respect to the inter-State case Ukraine v. Russia (X), the twelve-week period of Rule 44 § 3 (b) for requesting permission to intervene as third-party has expired on 20 September 2022. Unlike the parallel procedure at the ICJ, the requests for intervention are not public and no official information is available on which State was the first to request permission to intervene. However, in contrast to the usually rather discreet practice of States intervening, there was  a movement in recent weeks to even publicly announce their formal engagement with the proceedings. The Netherlands appears to have been the first State to make public its application in the realm of the Ministerial Ukraine Accountability Conference on 14 July. Latvia announced its request in early August. In the beginning of September, the public announcements finally gained momentum and a number of States such as Ireland, Estonia, Sweden, Poland, Romania, Slovenia, and Finland published successively their requests. On 23 September, the Court itself announced that it had received a total of 23 applications and that the UK and Iceland were granted an extension of the deadline. If the Chamber president permits their intervention, these (for now) 25 third-States will now submit written observations on the substance of the case.

Third parties, and parties

In public international law and international arbitration, third-party interventions provide the contracting parties with the opportunity to communicate their understanding of the treaty to the respective monitoring body. In the practice of the ECtHR, States seem to mostly use their possibility to intervene when they are concerned that the Court’s ‘judgment would have a horizontal effect on other countries’, as Latvia explicitly stated when intervening in Hirst v. the UK (II) (74025/01, § 55). Via Art. 36 § 2 ECHR, States have expressed their rather restrictive interpretation of the ECHR (e.g. when ten States intervened in Lautsi and others v. Italy, GC, 30814/06) and explicitly invited the Court to revisit previous decisions (e.g. the UK intervening in Scoppola v. Italy (III), 126/05, § 78). Nicole Bürli concluded that ‘the role of member State intervention is the reinforcement of State sovereignty vis-à-vis the Court’ (p. 175).

When assessing the value of third-party interventions, it should also be borne in mind that all State parties are entitled to bring an inter-State application under Art. 33 ECHR for violations by other member States – also for those committed in the course of the Russian invasion before 16 September 2022 – with the full scale of an applicant’s procedural rights. In this spirit, in 1967, Denmark, Norway, Sweden and The Netherlands took the driver’s seat, instead of being mere passengers, in the ‘Greek case’, and each lodged full applications against the Hellenic Republic, which had fallen prey to a coup d’état and temporarily left the Council of Europe in 1969.

In contrast, the intervention of a third-party under Art. 36 § 2 ECHR depends on the Court’s discretion, which grants permission to intervene only if it is ‘in the interest of the proper administration of justice’ (as opposed to the right to intervention, like for cases involving the State’s nationals under Art. 36 § 1 ECHR or to the intervention under Art. 63 ICJ-Statute). Intervening third-States do not become parties to the case, their intervention may be subject to any conditions set by the Chamber President (Rule 44 § 5) and hearing participation is permitted only ‘in exceptional circumstances’ (Rule 44 § 3 (a)).

From this comparison, it appears that States have chosen the passenger’s seat instead of the driver’s in their response to the Russian invasion. However, the unprecedented number of intervening States gives hope that the case of Ukraine v. Russia (X) will generate a more energetic response than the lukewarm reactions to Russia’s conduct in the past, which led to human rights ‘grey zones’, as Andrew Forde pointed out. In this context, it should be emphasized that even though the timeframe of the Rule 44 has expired, the Chamber President is entitled to fix another time line (Rule 44 § 3 (b)) and has in fact already extended the deadline upon request – additional member States could still join the coalition of intervening States. Art. 36 ECHR itself does not contain a limitation in time. The additional workload for the Court must certainly be weighed in, but in view of the singularity of Ukraine v. Russia (X) for the Council of Europe and its importance for pending and future cases, the effort seems well worthwhile.

Added value of the multitude of third-State interventions

With regards to Ukraine v. Russia (X), we identify three aspects conveying value to third-party interventions by other States.

First, by intervening, member States are living up to their role as ‘guards’ of the Convention. It is the ECHR’s purpose ‘to establish a common public order of the free democracies of Europe with the object of safeguarding their common heritage of political traditions, ideals, freedom and the rule of law’ (ECommHR, Austria v. Italy (admissibility), 788/80, p. 18; Preamble, para. 6). Upon ratification, States have explicitly affirmed their ‘primary responsibility to secure the rights and freedoms’ defined by the ECHR and vowed to their ‘collective enforcement’ (Preamble, para. 7). Given the jointly expressed sympathy of many countries, third-party interventions in Strasbourg should also be understood as a symbolic expression of solidarity through legal means.

Second, the submissions of more than half of the member States to the ECHR can provide legitimacy to the later judgment. It goes without saying that third-State interventions cannot replace the opposing submissions of the respondent. In cases where the respondent has indicated that it will not formally participate – such as Russia before the ICJ and presumably also before the ECtHR, the written statements of a range of (third) States bound by this very treaty have a significant value. It is also recalled here that the Russian Federation argued in favor of the supremacy of international humanitarian law in the proceedings of Georgia v. Russia (II), a subset of international law that is characterized by a regrettable lack of judicial enforcement mechanisms. Much needed support also concerns the factual side of the conflict; States are entitled to participate in investigation measures (Rule A1 § 6) and could, by their own means, validate factual conclusions.

Third, an intervention is also an opportunity for dialogue between the member States and the Court. By way of intervention in Ukraine v. Russia (X), States could chose to express their disagreement with the Court’s jurisprudence, particularly on the eminent question of how human rights law and humanitarian law should interact.

In the much-criticized judgment Georgia v. Russia (II) (38263/08), the Court had to rule on the consequences of one of the gravest military confrontations the continent had so far experienced since Russia joined the Strasbourg club. The Court, visibly not at ease, found itself “not in a position to develop its case-law beyond the understanding of the notion of ‘jurisdiction’ as established to date” (§ 141) and left the five-day exchange of hostilities mostly to the realm of humanitarian law. Nevertheless, it saw itself in a position to decide at least on certain human rights issues concerning the armed conflict: Unanimously, the Court found that Russia had violated Art. 2 ECHR in its procedural aspect for the lack of an effective investigation into the deaths of the numerous victims during and after the hostilities as well as Art. 3 ECHR regarding the treatment of some 30 Georgian servicemen during and after the hostilities. Notably, the Court opined that in the context of an international armed conflict outside the territory of a respondent State “it must be for the Contracting Parties to provide the necessary legal basis for … assessing acts of war and active hostilities” (§ 142).

With this controversial stance of the Court in mind, it is worth recalling that since 2008, the Court has issued broad interim measures regarding the right to life under Art. 2 and Art. 3 ECHR in the context of acute conflict upon the request of individuals and States, namely Georgia, Ukraine, Armenia and Azerbaijan. These requests by affected States asking the Court to intervene in the armed conflict with interim measures are to be seen as State practice, indicating that States indeed consider the Convention applicable in situations of conflict. It is this disagreement with current jurisprudence that States could communicate to the Court, when intervening in Ukraine v. Russia (X).

In fact, the Court should not be left alone with the important question of how to apply the ECHR in the war in Ukraine, as this is more than a question of mere interpretation of Art. 1 or Art. 2 ECHR. The Court can expect to be aided on the question on how to square the circle and systemically integrate international humanitarian law.

The value of third-party interventions

The array of third-party interventions in Ukraine v. Russia (X) is an opportunity for the primary subjects of international law to express their legal views and to provide clarity on the crucial questions raised, notably on the relationship between international humanitarian law and human rights law. The unprecedented engagement of more than half of the ECHR member States is also an important validation of the Court’s supervisory system and its parent organization, the Council of Europe.

Note by the Editors: the paragraph on the timing and number of interventions was corrected to take into account new information received by the authors.