The Proceedings Flow While Water Does Not: Russia’s Claims Concerning the North Crimean Canal in Strasbourg

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On 23 July, Russia brought an interstate complaint against Ukraine to the European Court of Human Rights (ECtHR). After endlessly being a respondent in cases arising out of alleged control over the territories of other states, the empire decided to strike back. Ukraine for the first time found itself as a defensive side in its lawfare against Russia.

The legal aspects of the Russian-Ukrainian conflict were on many occasions discussed in this blog by Marchuk, Milanovic, Nuridzhanian, and other contributors. Yet there is an issue that remains overseen. It is so crucial, that Russia (unsuccessfully) requested the ECtHR for interim measures under Rule 39 of the Rules of Court.

This issue is the North Crimean Canal – an artificial watercourse bringing water to the Peninsula from the Ukrainian mainland. The question was addressed by some authors (including an old and naïve article by myself), however, not to a sufficient extent. Notably, Russia claimed, that the actions of Ukraine amount to nothing less than attempted genocide – an allegation so strong, that it warrants some consideration.

North Crimean Canal: Why So Important?

Crimea is surrounded by water but lacks water resources. There is a sufficient amount of drinking water in rivers and underground basins, but almost no water for agriculture and industry. Completed in 1975, the North Crimean Canal brought water from the river Dnipro in Ukraine to the Northern arid areas of the Peninsula. This enabled rapid development of agriculture and industry. At that, the Canal with all its facilities was owned and operated by the State Water Resources Agency of Ukraine, which is an agency of the central government.

Russia took control of Crimea in February 2014. According to Ukrainian officials, the facilities of the Canal in Crimea were seized by the new de facto authorities in March 2014, who drove away the Ukrainian personnel. In the absence of maintenance on the Russian-controlled side, water could not reach the consumers. According to the Ukrainian Water Resource Agency, the Russian de facto authorities refused to pay for water delivery, accumulating a huge debt. Under such conditions, Ukraine blocked off the canal.

According to a study published in a Russian journal in 2015, Crimea was 85% dependent on water delivery from Dnipro. Out of a total volume of consumed water, 72% were used for agricultural purposes, 18% – for public needs and as drinking water (the study does not reveal how much exactly was used as drinking water), and 10% for industry. The closure of the Canal had a devastating effect on agricultural production in Crimea and adversely affected chemical industry, including the “Crimean Titan” – the largest producer of titanium dioxide in Europe. At the same time, Russia relocated its military to the Peninsula, sharply increasing the need for water.

According to the 2017 OHCHR report, “while the situation had no negative implications on drinking water, agricultural lands were affected and practically all rice plantations on the peninsula perished”. The same report refers to Russian statements that “until 2020 “Crimea’s dependence on water supply via the North Crimean Canal can be eventually reduced or eliminated by searching for underground water sources, including manmade ones”. However, despite Russia’s attempts to find alternative water sources, the 2020 drought caused it to implement water rationing even in the cold season.

Water and Human Rights: The Russian Approach

In the absence of an international obligation of Ukraine to deliver water to Crimea, Russia referred to alternative solutions based on human rights arguments. In June 2020, Russian lawmakers addressed the UN High Commissioner for Human Rights (OHCHR) complaining that “Ukraine has deprived millions of people of a basic and inalienable right to drinking water”. No official reaction followed. On 14 September 2020, the Russian Human Rights Council (an advisory body with the Russian presidential administration) appealed the OHCHR claiming that the actions of Ukraine contravene the UN Convention on Transboundary Watercourses and International Lakes and the Berlin Rules on Water Resources. This appeal was again without a response. In March 2021, the Russian envoy to the OSCE listed the violations of the Convention on Human Rights and Fundamental Freedoms allegedly resulting from shutting down the Canal.

In its interstate complaint Russia submits that Ukraine’s actions violated the rights of the residents of Crimea under Articles 3 (prohibition of torture), 8 (respect for private and family life), 14 (prohibition of discrimination) of the Convention, Article 1 of Protocol 1 (right to property) and Protocol 12 (general prohibition of discrimination).

Jurisdiction: Revisiting Banković?

It is likely that Ukraine will raise every imaginable objection to jurisdiction, including the local remedies rule, failure to comply with the six months’ rule, etc. Yet probably, the most intriguing jurisdictional issue, which may prove to be uncomfortable for both parties, is the problem of extraterritorial application of the Convention. In Banković (and many other cases), the ECtHR concluded that Article 1 of the Convention reflects a territorial notion of jurisdiction, “other bases of jurisdiction being exceptional and requiring special justification”. Such justification may be based on open or indirect control. An example of open control was analyzed in Al-Skeini and Others v. the United Kingdom, where the UK exercised extraterritorial control as a consequence of military action. An example of indirect control is Ilaşcu and Others v. Moldova and Russia, where extraterritorial control was exercised by Russia via a subordinate local administration.

Arguing that Crimea is its territory is a matter of principle for Russia. Although the Court may consider a claim of human rights violation without elaborating on the question of sovereignty, the very nature of the claim is likely to make Russia touch upon extraterritoriality. The act of blocking off water delivery took place on the territory of Ukraine’s mainland (where the flow of water is physically interrupted by a barrier made of sandbags), while the alleged human rights violations occurred in Crimea. Here, Russia must choose between recognition of Crimea as a part of Ukraine, or attempting to prove that switching off the Canal was an action with extraterritorial effect, for which Ukraine is responsible.

As for Ukraine, it may seem that the Court’s conclusions in Banković provide it with a perfect objection to jurisdiction. Nevertheless, Ukraine may find it difficult to apply this objection, as this reference may look as an indirect recognition of Russia’s sovereignty in Crimea. In another scenario, Ukraine may choose to argue, that the Banković standard should be interpreted broadly, as applicable not only to state territories but also to situations of occupation. Then Ukraine may proceed with a statement that Russia is entirely responsible for human rights in the territory that it directly controls, while the actions of Ukraine are incapable of producing violations for which Ukraine would be responsible.

Merits: Right to Water Under Article 8 of the Convention?

Now let us imagine that the claim on the Canal reaches the merits stage. Although the right to water is not promulgated anywhere in the Convention, the Court did find a violation of Article 8 as a result of water pollution in Dubetska and Others v. Ukraine and Dzemyuk v. Ukraine. It provided a profound analysis of the right to drinking water in the framework of Article 8 in Hudorovič and others v. Slovenia. In all those cases the Court concluded that a violation of Article 8 may occur if a state fails to comply with its positive obligation to ensure access to drinking water.

Importantly, the issue here revolves exactly around positive obligations. Water does not flow naturally into Crimea, and the Canal is an artificial hydraulic structure, which requires human labour to operate. It cannot be compared to a river, but rather (similarly to Hudorovic), to a water pipeline. This pipeline provided water to consumers under the commercial contracts. After Russia took control over the Canal facilities in Crimea, it never officially proposed Ukraine to negotiate a contract on renewal of water supply. Thus, water could not reach the consumers if Ukraine acted negatively (in other words, simply did nothing).

When it comes to positive obligations, one should recall the Court’s famous conclusion in Ilaşcu (§ 333), that where a state is prevented from exercising authority over a part of its territory (whether as a result of foreign occupation or not), it retains jurisdiction in the meaning of Article 1 over such territory, but this jurisdiction is reduced to “positive obligations”, including “all the legal and diplomatic means” available to continue to guarantee the enjoyment of rights and freedoms under the Convention. If the Court applies this standard, it can, in theory, verify whether Ukraine took all legal and diplomatic measures to ensure the right to water to the residents of Crimea, but this understanding of positive obligations seemingly does not include a duty to deliver anything (including water) to the territory outside of the state’s control.

If the Court (hypothetically) finds an interference with the right to private life, its duty will be to establish whether such interference was in accordance with the law, whether it pursued a legitimate aim, and whether it was necessary in a democratic society. As to the first two elements of the test, the Court may experience difficulties in establishing the law of which state applies in the case. If it does find, that it is the law of Ukraine, the latter is likely to claim that the closure of the Canal resulted from a commercial dispute and an outstanding debt. As for legitimate aim, here Ukraine is likely to refer to the situation of an armed conflict threatening the life of the nation and the legitimate aim of protection of sovereignty.

Finally, as for necessity in a democratic society, the case seems to present a dilemma of a balance between the interest of protection of sovereignty and private life. At that, the claim of sovereignty will be pretty straightforward. As for the Russian claim, the effect on individual private lives appears very distant from Ukraine’s action. For example, water rationing resulted from the depletion of existing water reservoirs, that is a part of the Russian policy of replacement of water from the Canal, that is a result of the failure to agree on water delivery with Ukraine, that closed the Canal. Another example: an environmental accident on the “Crimean Titan” resulted from the exploitation of the plant in the conditions of water scarcity, that resulted from the failure of the management to agree with the Russian de facto authorities on water delivery, that resulted from the absence of necessary amounts of water, that resulted from the failure of the de facto authorities to agree on water delivery with Ukraine, that closed the Canal. Such a “House that Jack built”-like chain of reasoning may become even longer if more facts come to the knowledge of the Court, and each fact will render a causal relationship between the act of Ukraine and the effect on the private life of an individual resident of Crimea increasingly illusive.

What If They are Parched with Thirst? Eventual Issue Under Article 3

In Hudorovič and others v. Slovenia, the Court also assessed the issue of access to drinking water under Article 3, but limited itself to a conclusion, that since Slovenia took positive measures to ensure access to water for the applicants no issue under Article 3 arises. The Court observed that in order for an issue under Article 3 to arise, an applicant must be wholly dependent on state support and face official indifference in a situation of serious deprivation or want. This can be compared to Teitiota v. New Zealand, where the UN Human Rights Committee concluded that although as a result of climate change the applicant lost access to natural sources of fresh water, and would have to rely on rationed supplies, this did not pose a “reasonably foreseeable threat of a health risk that would impair his right to enjoy a life with dignity or cause his unnatural or premature death”.

It follows that Article 3 may come into play only in case of a very serious humanitarian situation. In the absence of a relevant precedent, the Court may find inspiration in Geneva Convention (IV) (to which it already referred to in Georgia v. Russia (II) and a number of other cases), that places the obligation to provide the civilians with basic commodities on the occupying power. In any event, the question here would be about the real possibility for Ukraine to ensure water delivery to those in need. Under the existing circumstances, this possibility appears more than limited.

Concluding Remarks

Two days following the submission, the ECtHR dismissed the Russian Rule 39 request asking to order Ukraine “to suspend the blockade of the North Crimean Canal”. As of now, the Court does not see a risk of irreparable harm of a core right under the Convention. Russia failed to obtain an immediate solution of the water crisis. Still, there is hardly a reason why Russia would withdraw the principal claim. Therefore, the proceedings will flow according to procedural rules, further increasing the Court’s caseload and postponing the final resolution of the interstate cases between Russia and Ukraine.

Oleksii Plotnikov is an expert in international law and transitional justice with the Association of Reintegration of Crimea and the Crimean Tatar Resource Center. He is also a practicing lawyer, representing victims of armed conflicts before Ukrainian courts and the European Court of Human Rights.

He holds an LLM with distinction from the University of Manchester and a PhD from the National University “Odesa Law Academy”. He was also a Fulbright visiting researcher at the Cardozo School of Law.

The Association of Reintegration of Crimea is a Ukraine-based NGO bringing together experts working on the legal questions related to peaceful restoration of Ukraine’s sovereignty over Crimea.

The Crimean Tatar Resource Center is a Ukraine-based NGO working to protect the collective rights of the Crimean Tatars as an indigenous people of Crimea, as well as individual rights of all residents of Crimea.

 

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