Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR
On 11 September the Grand Chamber of the European Court of Human Rights held oral hearings on the admissibility of the interstate claim Ukraine brought against Russia regarding Crimea (no. 20958/14). The webcast of the hearing is available here. There are many different admissibility issues that the case raises, some of them heavily factual (e.g. the existence of an administrative practice on the part of Russia that makes individual recourse to domestic remedies impossible). The case may well flounder on one of them. But the one issue that concerns me here is simply this: should the European Court make any pronouncements on whether it is Ukraine or Russia who is the rightful sovereign of Crimea?
To be clear, sovereignty over Crimea is not to my mind a legally difficult question – Russia’s annexation of Crimea was as clearly illegal as anything can be. But there is wider, much more fraught, question of principle and prudence: should international human rights bodies pronounce on issues which, while capable of legal determination, are not part of their central mission of human rights protection and may negatively affect that mission? This is especially the case in situations in which it is entirely predictable that, in the political context, any such pronouncement would provoke intense backlash, even possibly leading to Russia’s withdrawal from the Council of Europe.
Last year my colleague Tatjana Papic and I published an article in the ICLQ on the application of the ECHR to contested territories, such as Crimea. We argued in favour of the wisdom of the Court’s initial approach to such territories, articulated in its Loizidou judgment regarding Northern Cyprus, in which it held that ‘the responsibility of a Contracting Party could also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control… (emphasis added).’ The Court thus avoided – and properly so – the issue of whether Turkey violated the UN Charter when it invaded Cyprus. Not, again, because this is a question that cannot be legally answered, but because it is not indispensable that it be answered, and doing so may even run counter to the Court’s mission of protecting human rights.
One hugely complicating factor, however, has been the Court’s Ilascu jurisprudence, in which the Court espoused the view that two positive obligations are vested solely in a state’s sovereign title over territory, even if it loses control over that territory: first, that it has to take steps to re-establish its control, and second, that it has to take (limited) steps to protect individuals from the conduct of third parties, e.g. through diplomatic means. Despite their apparent human rights-friendliness, neither of these two obligations survive serious scrutiny. The former is simultaneously potentially both very grave and meaningless – grave because it signals to states like (say) Serbia that they should re-assume control over separatist entities such as Kosovo (with all the possible dangers that might arise therefrom), and meaningless, because the Court’s standard of review regarding compliance with this obligation is so deferential that the obligation can never really be violated. The latter obligation is almost as meaningless. Unless I’m mistaken, the only case in which the Court found that positive residual obligation to have been violated is Ilascu itself. And thus, for very little practical benefit, the Court undermined its Loizidou holding that the notion of Article 1 jurisdiction is a purely factual one, resting on the fact of control over territory rather than on any right to exercise such control.
Logically, in the Ukraine v. Russia re Crimea case the Court need not reach the issue of sovereignty per Ilascu simply because the case does not concern any obligations of Ukraine, but only those of Russia. However, it is evident after the Grand Chamber hearing that there are other ways through which the sovereignty (and related jus ad bellum) questions can come before the Court. This (longish) two-part post looks at these different avenues, arguing (again) that the Court would be wise to avoid them if at all possible.
Arguments of the parties
At the hearing, the judges explicitly asked the parties to explain their position on whether the Court should reach the issues of sovereignty over Crimea and any UN Charter violations on the part of Russia, in order to establish whether Russia had jurisdiction over Crimea in the sense of Article 1 ECHR. As one could expect (and in fact as Tatjana and I predicted in our ICLQ piece) Russia did not dispute that it had jurisdiction over Crimea, since doing so would be inconsistent not only with the facts on the ground but also (politically) with its claim of sovereignty. But Russia was adamant that the Court should not pronounce itself on the sovereignty dispute between the parties, arguing that this was a purely political issue over which the Court did not have jurisdiction.
Now, obviously, the question of sovereignty is political, but so is everything else about this case. As the ICJ has consistently held, the fact that an interstate dispute has political dimensions, as it inevitably does, does not mean that the dispute is not capable of legal determination. The issue here is not whether the dispute is legal or not legal, but rather whether the European Court of Human Rights is the institution best placed to make such a determination.
Counsel for Ukraine, on the other hand, expressly invited the Court to rule that Crimea remained Ukrainian territory. Counsel did so by employing two lines of argument. First, that by ruling on these issues the Court would simply be joining the mainstream or consensus position of the international community, including the position of the other organs of the Council of Europe. This, of course, is true. But one can as well ask what added symbolic value would the Court’s holding on Russia’s (lack of) sovereignty genuinely have. Not only would the Court adding its voice to the general chorus of outrage over Crimea have little practical value, but as explained above it might have significant costs for human rights protection in Russia as a whole, not just Crimea. Crucially, while the European Court is a part of the international legal system, it is a human rights court, not a general international court, and there are other institutions of that system whose primary task is to apply these other areas of international law.
Second, counsel for Ukraine argued that the Court logically had to pronounce on the sovereignty question in order to define the juridical nature of Russia’s (uncontested) jurisdiction, as being either territorial or extraterritorial. But this argument rests on a fallacy – partly one of the Court’s own making, from Bankovic onwards – that there is some kind of profound difference in nature between Article 1 jurisdiction which is territorial and that which is extraterritorial. On the contrary, both should be regarded as being of the same, factual nature –based in the exercise of control over territory, rather than in the right to exercise such control.
What the Court should do
In sum, the Court can in my view quite reasonably say – and should say – that per Loizidou Russia has control, and thus jurisdiction, over Crimea, regardless of whether it obtained such control lawfully or unlawfully. That Russia does not dispute that it has jurisdiction is simply an added bonus. The Court could then add for even more clarity that its finding of jurisdiction is not an implicit determination of the sovereignty dispute between the parties. This is in my view the most sensible way in which the Article 1 applicability question should be resolved.
The trickier issue in the case is from what precise moment in time Russia obtained such control as a matter of fact. This is relevant primarily for the period from late February 2014 (when a new pro-Russian local government took power) to 18 March 2014 (the date of annexation). The problem here will be one of benchmarks of control that the Court chooses to employ, especially in a situation during which some Ukrainian authorities, including members of the armed forces, remained in Crimea. Similarly, much will depend on the evidence it will use (i.e. which has been furnished by the parties) to find that these benchmarks have been satisfied (or not). In light of both the need to avoid a vacuum in human rights protection and the rather loose approach that the Court adopted to the issue of the relationship between Armenia and Nagorno Karabakh in Chiragov it is more likely than not that the Court will find that Russia was in control of Crimea even before 18 March 2014 – but again this will depend to the greatest extent on the evidence that Ukraine manages to present to the Court on the extent of Russia’s presence on the ground.
In principle, therefore, the Court’s Article 1 jurisprudence would comfortably allow it to avoid deciding on sovereignty over Crimea, even without any overruling or reinterpretation of Ilascu. But this is unfortunately not the end of the story. A further problem lies in some of the claims that Ukraine makes on the merits of the case which might logically require a determination of sovereignty because of how the particular right, and the alleged violations of that right, are framed. In my next post I will look at two such issues: the mass automatic naturalization of Ukrainian citizens that Russia implemented in Crimea, and an individual’s right to enter their own country.
Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part II: Issues Lurking on the Merits
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.
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:
- 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.
- 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.