Ukraine v. Russian Federation in Light of Ilaşcu: Two Short Points

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In a post earlier this week, I considered the implications of the European Court of Human Right’s (ECtHR) recent just satisfaction judgment in Cyprus v. Turkey for the inter-state application filed by Ukraine against Russia (see press release announcing interim measures order here). In the present post, I would like to make two short points about the implications of the ECtHR’s 2004 judgment in Ilaşcu v. Moldova and Russiafor the situation in Crimea (see previous post on this issue by Philip Leach).  First, there are indications that the ECtHR’s approach in Ilaşcu to responsibility of the State for territory seized from it by force will be applied to Crimea not only in the Court but, perhaps, in the UN human rights organs as well.  And, second, Ilaşcu, especially considered alongside Cyprus v. Turkey, reinforces the position that the passage of time does not, under modern international law, cure the unlawfulness of a change of boundaries effected by use or threat of force.

Responsibility notwithstanding lack of effective control

Ilaşcu was a case brought against two States, one of which could not (and still cannot) exercise effective control in the whole of its territory.  The Court’s determination that “the Moldovan Government… does not exercise authority over part of its territory, namely that part which is under the effective control of the [separatist movement]” (para. 330) stated the obvious; but the conclusion that followed was not so obvious.  The Court concluded that…

“even in the absence of effective control over the Transdniestrian region, Moldova still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention” (para. 331).

To hold Moldova responsible for territory beyond its effective control would seem to raise problems of fairness.  And, yet, the holding is, at least in a general way, in accord with the rule under which the injured State, too, is obliged not to recognize or aid in the consolidation of a situation created by a gross breach of a fundamental rule (Articles on State Responsibility, Art. 41, Comment (9): ILC Ybk. 2001, vol. II, Part Two, p. 115).  Crucially, the Court tempered the “positive obligation” under Article 1 of the Convention by acknowledging Moldova’s effective exclusion from Transdniestria, a result of armed occupation by “a power such as the Russian Federation.”  Moldova in those circumstances as a practical matter was left little opportunity “to re-establish its authority over Transdniestrian territory” (para. 341). As to the remedies likely to be adopted if a case is brought which seeks to hold Ukraine responsible for breaches in the Crimean part of Ukrainian territory, Ilaşcu suggests that these will be balanced to reflect Russia’s preponderant effective power.  To take the financial remedy, the Russian Federation in Ilaşcu was ordered to pay in total €582,000; Moldova, €199,000 (dispositif, paras. 20, 21). The Court also required both Moldova and Russia “to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned” (dispositif, para. 22).  Ukraine well could be held to a similar duty, which suggests a form of continuing diligence in the lawful exercise of its jurisdiction.

Potentially more problematic is the Court’s statement in Ilaşcu “not[ing] that the negotiations for a settlement of the situation in Transdniestria, in which the Russian Federation is acting as a guarantor State, have been ongoing since 2001 without any mention of the applicants and without any measure being taken or considered by the Moldovan authorities to secure to the applicants their Convention rights” (para. 350). To say that a State should have mentioned an issue in negotiations is to suggest that the State might have negotiated a settlement of the issue. But negotiation entails trade-offs: one State gets something, the other State gives something. When a State’s territory has been unlawfully seized, what is the State to be asked to give?  It would be a surprising outcome, indeed perverse, if the State which seized the territory, or supported its seizure, gained even more leverage by infringing the human rights of individuals in the territory.  This is an outcome to be guarded against when applying the Court’s decisions.

Possible convergence with other human rights institutions

A sign is visible that the UN treaty organs, when addressing Crimea, may be converging with the European Court in the approach they take to international responsibility.  In the Committee on Economic, Social and Cultural Rights on April 29, it was asked…

“in view of recent events in Crimea and its annexation by the Russian Federation… what measures [could] the Government of Ukraine … take to ensure that the cultural and linguistic rights of the Crimea Tatars were upheld” (CESCR, 52nd sess., 4th mtg, Mr. Sadi, para. 41).

Implicit in the question is that, like Moldova in respect of Transdniestria, Ukraine in respect of Crimea still has human rights obligations in the territory notwithstanding the displacement of effective government control by another State.  Presumably, too, the practical steps that Ukraine is to take in this regard will be considered in light of the realities on the ground.  It would be good evidence of convergence across different human rights institutions, if the approach to responsibility in Ilascu is followed in the UN human rights organs as they address Crimea.

Resilience of rights in territory over time

The Ilascu judgment also indicates the resilience of the State’s rights in its territory.  Moldova started by asserting its authority in Transdniestria, including by bringing prosecutions against Transdniestrian officials. The strategy later shifted to negotiation.  Moldova concluded instruments with Russia and the Transdniestrian authorities for purposes of settling the conflict in the region.  The Court was clear that the shift to a negotiating strategy was not an abandonment of Moldova’s rights as the State with jurisdiction over the territory (para. 344). This is consistent with the position, reflected in practice in a number of internal armed conflicts, that negotiating with, and even entering into binding commitments with, insurgents does not concede the larger claims.  Nor was it necessary for Moldova to maintain a uniform intensity of protest and opposition against the separatists: “The Court does not see in the reduction of the number of measures taken a renunciation on Moldova’s part of attempts to exercise its jurisdiction in the region” (ibid).  This is a valuable point for other States in a similar position, in particular Georgia and Ukraine, the second and third States, respectively, to be subject to armed occupation by Russian Federation forces in parts of their territory.  The value of the point is in preserving the rights of the State and in assuring that there is no rapid operation of acquiescence or prescription following an unlawful occupation of territory.  Even in ordinary disputes, parties have asked a court or tribunal to draw conclusions from their adversaries’ briefest silence.  The European Court in Ilaşcu implicitly recognized the well-established proposition that it takes a great deal more than a brief silence for a State to acquiesce in a loss of territory.

 

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