Russia Files Interstate Complaint Against Ukraine in Strasbourg

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This, I think, is a first – after many years of being sued by other states (most notably Ukraine and Georgia) before the European Court of Human Rights and other international courts and tribunals, Russia has struck back last week by filing an interstate application of its own against Ukraine (no. 36958/21). Here’s an excerpt from the Court’s press release:

The case concerns the Russian Government’s allegation of an administrative practice in Ukraine of, among other things, killings, abductions, forced displacement, interference with the right to vote, restrictions on the use of the Russian language and attacks on Russian embassies and consulates. They also complain about the water supply to Crimea at the Northern Crimean Canal being switched off and allege that Ukraine was responsible for the deaths of those on board Malaysia Airlines Flight MH17 because it failed to close its airspace.

This case is a direct reaction to the most recent interstate claim brought by Ukraine against Russia on the latter’s alleged pattern of extraterritorial assassinations , and to the proceedings (currently pending on admissibility before the Grand Chamber) in the Netherlands and Ukraine v. Russia case that partly deals with the downing of MH17. (Disclosure: Nottingham’s Human Rights Law Centre, whom I’m representing with my colleague Sangeeta Shah, was granted leave by the Grand Chamber to intervene as amicus curiae in the MH17 portion of that case). While the latter case turns around Russia’s alleged responsibility for the downing of the plane (raising e.g. the issue of the attribution of the act), the new one is about Ukraine’s alleged failure to comply with its positive obligation to close the airspace in a situation of risk to life. Assuming that the Court ultimately reaches the merits of both interstate cases, what’s particularly interesting here is that at least on some assumed facts the theories of the two cases are not mutually exclusive – it is perfectly possible, for example, for Russia to bear (some form of) responsibility for the downing of MH17 and for Ukraine to be responsible for failing to act diligently to protect life by closing its airspace or issuing warnings to airlines. That said, the Jessupers of the world will now be frantically googling the ‘clean hands doctrine’ and whether there is such a thing as an abuse of the right of interstate petition…

Interestingly, it appears that in its application (which I have not seen in the original, but which is summarized in a press release of the Prosecutor-General’s office) Russia adopted positions that seem to be odds with some of its positions in previous cases. For example, while in the Georgia v. Russia litigation it resisted the application of the ECHR to situations of armed conflict, here Russia asks the Court to determine that Ukraine violated human rights of individuals in its operations in the Donbas region, which clearly were part of a non-international armed conflict. Similarly, previously Russia resisted the extraterritorial application of the Convention, but here it asks the Court to find Ukraine responsible for “causing death, injury and destruction of property as a result of shelling by the Armed Forces of Ukraine of the adjacent territory of the Russian Federation.” The Convention should indeed, in my view, generally apply in armed conflict and in extraterritorial situations, but we shall see to what extent Russia keeps maintaining ostensibly contradictory arguments in other cases – note, in that regard, how in its pursuit of the MH17 case the Netherlands also had to abandon its prior restrictive positions on extraterritoriality.

It is also particularly notable how this is one of the rare international judicial cases initiated by a great power, which are normally on the receiving end of international litigation. It is especially rare for Russia to be an applicant in such cases – readers will correct me, but I can only remember one relatively minor ITLOS case of that type. This is certainly the first such case in Strasbourg. At least insofar as the legitimacy and authority of the European Court is concerned, Russia now utilizing the mechanism that has been used against it so many times is a good thing (although it will inevitably be seen in Ukraine as an example of organized ‘lawfare’ against it, in addition to thousands of individual applications that seem to have  been filed against Ukraine recently in a coordinated effort). But the unfortunate fact remains that the Court has not received any additional resources to deal with an increasing number of interstate cases, which are very intensive and require the reallocation of labour from the Court’s normal case load. ECHR member states simply must come up with some way of increasing the Court’s funding (and any other necessary resources, including lawyers (and judges) with specific subject-matter expertise) to avoid such cases from dragging on endlessly.

We shall see – certainly a development to watch closely. But let me leave you with this:

 

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Comments

DP190 says

July 26, 2021

Dear Marko,
Thank you very much for this post and your initial thought on the matter. Very interesting.
However, with respect to your point on the issue of contradictory approaches in this complaint and the approach that has been taken by Russia in the recent Georgia v. Russia case - I am not sure that the circumstances of these case are the same, and therfore, one may argue that the position taken by Russia in its interstate complaint is in conformity with its position in the Georgia v. Russia case. This, chiefly because the armed conflict in the Georgia v. Russia case was an IAC, which may give rise to significant modification of the applicatio of IHRL obligation. However, as you rightly pointed out, the armed conflict in Eastern Ukraine is a NIAC. Hence, one may argue that since we are in a situation of NIAC which occures within the territory of a single state, the application of IHRL is less contested, and is different from the situation where two states are engaged in a IAC.

Many thanks again for your post.

Marko Milanovic says

July 26, 2021

Many thanks for that comment. That's a fair point, but it can be responded to in a couple of ways. First, Russia (as far as I'm aware) did not draw this categorical distinction between IAC and NIAC in its previous arguments. If you look at the GC judgment in GvR No. 2, para. 86, you'll see that Russia was arguing that the Court should not apply IHL at all, as it has no mandate to do so, and that the Convention was not designed to apply in armed conflict (not just IAC, as I read that). Second, objectively on the facts (but of course not in Russia's view) it is perfectly reasonable to argue that Russia exercises overall control over the Donbas rebels so that the conflict has become an IAC, i.e. it was internationalized.

Either way - even if FORMALLY one could say that Russia is not necessarily being inconsistent, by drawing some kind of distinction, it is clearly being inconsistent substantively. I mean in GvR the whole point was that the Court should not adjudicate on Russian shelling of targets in Georgia in a 'context of chaos', but here Russia wants the Court to adjudicate on Ukraine's shelling in precisely such a context. "A foolish consistency is the hobgoblin of little minds" etc etc.