Development / Politics

Ukraine, Russia and Territorial Jurisdiction: The Legal Conundrum behind the Conflict

Olena Guz explains the inter-state case of Ukraine v. Russia at the European Court of Human Rights.

One of the most important functions of the European Convention on Human Rights is not only delivery of individual justice, but also collective enforcement of human rights.[1] The right to application has two forms – inter-state complaints and the procedure for complaints to be lodged by individuals. While the European Court of Human Rights (ECtHR) faces an overwhelming backlog of individual petitions, it rarely receives inter-state complaints.

On 13 March Ukraine lodged an inter-state application to the European Court of Human Rights against Russia regarding human rights violations during Russia’s intervention in Crimea, using soldiers without insignia, carrying Russian equipment. The ECtHR granted interim measures in the inter-state case Ukraine v. Russia (I), calling on both parties to the Convention, Russia and Ukraine, to refrain from taking actions which might threaten the life and health of the civilian population.[2]

On 13 June 2014 Ukraine lodged with the court the second inter-state complaint against Russia. The case Ukraine v. Russia (II) relates to the abduction of three groups of orphan children from Ukraine. The groups of children were transported from Eastern Ukraine to Russia by pro-Russia separatists.[3] The court also issued interim measures demanding immediate return of children to Ukraine. With regard to both inter-state cases brought by Ukraine, on November 25th 2014 the court asked the Russian government to submit observations. In addition, military occupation of Crimea and the conflict in Eastern Ukraine caused more than 160 individual applications to the ECtHR, brought against Russia or Ukraine or both.[4] The news shows us the political minefield that these kinds of frozen conflicts create: behind these lurk a complex network of legal claims and counter-claims.

The situation gives rise to the question of what state ought to be responsible for human rights violations in Crimea and Eastern Ukraine – who has jurisdiction in a disputed territory? In particular, the ECtHR adjudicating on the cases will encounter the issue of territorial jurisdiction over Crimea and Eastern Ukraine – This issue of territorial jurisdiction impacts every case in the area, and is an offshoot of the very problem which launched a platform for widespread human rights abuse – a hybrid war with Russia. To complicate the matter, some cases originated in military occupation, which further muddies the waters of jurisdiction.

The Court had already examined applications stemming from regimes of occupation or secession. To explain, the breakaway region is de jure the territory of its mother state (in this case, Ukraine), but de facto the breakaway region claims to be a new state, or more accurately two, the Democratic People’s Republics of Luhansk and Donetsk. In most cases breakaway regions argue that they form new states, even though the latter does not meet international recognition and criteria of statehood. The secessionist regions constitute an important sphere of interest for other states, actions of which may be attributable to the secession. Therefore, human rights violations emerging in breakaway regions pose the question of what state fails to secure human rights within the territory. Does the failure lie with Russia, Ukraine, or the breakaway states themselves?

Jurisdiction usually means the factual territory of state. The member state bears a responsibility for violations of human rights ensured in the Convention. This means that the alleged violation has to occur within the jurisdiction of the respondent state. However, the state is also responsible for human rights violations in the territory over which it exercises effective control. As you can see, this quickly becomes a legal minefield. In the case Loizidou v. Turkey an applicant had been denied access to her home and property as well as other thousands of Greek-Cypriot refugees during Turkey’s occupation of northern Cyprus. The Court held that the responsibility of a member state may be a consequence of military action – whether lawful or unlawful – when it exercises effective control over an area outside its national territory.[5] The ECtHR ruled that interference with the human rights of an applicant falls within the jurisdiction of Turkey in the meaning of Article 1 of the Convention. In the case Georgia v. Russia (II), filed after the 2008 war, the court reaffirmed that the concept of jurisdiction is not restricted to the national territory and a state could have responsibility fo an area outside of this if it controls it, as is being said of Russia. Control can be exercised directly, through armed forces, or indirectly, through a subordinate local government.[6] It has been almost 5 years since the Georgian government lodged the application with the Court (on 6 February 2009), and the case Georgia v. Russia (II) is still pending before the Grand Chamber of the ECtHR. So this is a very current legal conundrum.

Let’s consider finally a case that called out a controlling, foreign state for human rights violations. In Ilascu and others v. Moldova and Russia the court ruled that the Russian Federation was responsible for infringements in Transdniestria, the strip of land which is de facto an independent state between Moldova and Ukraine. The ECtHR restated that ‘the Moldovan Republic of Transdniestria set up in 1991-92 with the support of Russia, vested with organs of power and its own administration, remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation”.[7] However, the Court invoked also the concept of positive obligations of Moldova in respect to Transdniestria, even if the former does not exercise the effective control over the breakaway region. It means that Moldova has not undertaken all means to ensure release of applicants. The Court lists such positive obligations as the diplomatic, economic, judicial or other measures in order to ensure human rights protection in Transdniestria.

The ECtHR doesn’t rule on whether a secession is legal or not: it’s up to the International Court of Justice (ICJ). The ECtHR merely deals with alleged human rights violations that already fall within the scope of the Convention. Nevertheless, as was mentioned, the Court regards the regimes of disputed territories and examines which state controls the breakaway region. This allows them to establish jurisdiction prior to deciding on the merits of case.

So does Russia have jurisdiction, and therefore responsibility, in Eastern Ukraine? Russia denied its involvement in the hybrid war. The ‘little green men’ in Crimea appeared in January but it until April 17th that Putin acknowledged the presence of the Russian troops there. Ukraine submitted its first inter-state application on 13 March prior to the incorporation of Crimea into the territory of Russia. However, Ukraine maintains that from February 27th 2014 Russia started exercising effective control over Crimea and armed groups operating in Eastern Ukraine.[9] The Court has to establish whether Russia excercised control over land outside of its borders, and for how long this happened.

It is difficult to predict what decision the ECtHR will come to. One of the central issues is in the meaning of Article 1 of the Convention. According to the ECtHR case law, the jurisdiction primarily connotes the national territory of the state. However, in exceptional cases ‘this presumption may be limited, in particular, where a state is prevented from exercising its authority in part of its territory, as a result of military occupation by the armed forces of another states which effectively controls the territory concerned, acts of war or rebellion, or the acts of foreign state supporting the installation of a separatist state within the territory of the state concerned.’[10] This is the crux of the case: are these kinds of conditions satisfied by Russian incursion into Crimea? We shall have to wait for the court. The case continues.

Olena Guz

[1]  The preamble to the EHCR says that ‘ the governments of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law, [should] to take the first steps for the collective enforcement of certain of the rights state in the Universal Declaration’.

[2] European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine, Press Release, the Registar of the ECtHR, ECHR 345 (2014), 26.11.2014, available at

http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4945099-6056223#{“itemid”:[“003-4945099-6056223”]}

[3] European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine, Press Release, the Registar of the ECtHR, ECHR 345 (2014), 26.11.2014, available at

http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4945099-6056223#{“itemid”:[“003-4945099-6056223”]}

[4] European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine, Press Release, the Registar of the ECtHR, ECHR 345 (2014), 26.11.2014, available at

http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4945099-6056223#{“itemid”:[“003-4945099-6056223”]}

[5] Loizidou v. Turkey, ECtHR, application no. 15318/89, Judgment of 18 December 1996, para. 52, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58007#{“itemid”:[“001-58007”]}

[6] Georgia v. Russia (II), ECtHR, application no. 38263/08, Decision on admissibility of 13 December 2011, para. 66, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108097#{“itemid”:[“001-108097”]}

[7] Ilascu and others v. Moldova and Russia, ECtHR, application no. 48787/99, Judgment of 8 July 2004, para. 392

[8] Ilascu and others v. Moldova and Russia, ECtHR, application no. 48787/99, Judgment of 8 July 2004, para. 331

[9] European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine, Press Release, the Registar of the ECtHR, ECHR 345 (2014), 26.11.2014, available at

http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4945099-6056223#{“itemid”:[“003-4945099-6056223”]}

[10] Ilascu and others v. Moldova and Russia, ECtHR, application no. 48787/99, Judgment of 8 July 2004, para. 312

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