The issue of jurisdiction and accountability in Crimea and Donbas through the lenses of the European Court Of Human Rights

Abstract

Today, the Ukrainian war is amongst the worst humanitarian crises in the world, fact that asks to what extent would the European Court of Human Rights attribute accountability to the relevant State Parties for ECHR violations of individual rights in the contested territories of Crimea and Donbas? In conducting the research for the following chapters, the applied methodology is a doctrinal one. Namely, it has performed a detailed study of the exiting case law issued by the ECtHR and an interpretative analysis of the ECHR. As such, primary and secondary sources of law have been analyzed through the process of deductive and inductive reasoning. In addition, the line of argumentation has been assembled through comparisons and analysis of various legal articles, reports, media outlets and literature review. Therefore, in answering the research question, this article performed an extensive analysis of the Court’s jurisprudence towards cases of contested territories. The performed analysis was crucial in understanding the complexity of the Court’s approach, particularly the controversial judgement of Ilascu v. Moldova and Russia. As the article observed, the idea of ‘residual obligations’ underpinned in territorial sovereignty of the State is challenging especially for contested territories. The term of ‘residual positive obligation’ was both welcomed and criticized by legal authors since it was clearly a shift from the Court’s traditional approach of presumption/rebuttal. This article is however of the opinion that the Ilascu approach represents an impediment for the Court to address the ECHR claims primarily in Crimea rather than in Donbas since it runs the risk to provoke a significant political backlash when assessing the residual positive obligations as imposed to the parent State (i.e. Ukraine). This impediment lies on the fact that such residual obligations are inevitably linked to the sovereignty of the State, thus inevitably reducing the scope of the parent’s State jurisdiction in cases of territorial contestation. Therefore, as it will be observed throughout the critical analysis of the Court’s case law, both Russia and Ukraine can be held responsible for ECHR violations in the contested territories of Crimea and Donbas. However, considering the current political climate, the Court should act carefully with the applications from both Crimea and Donbas due to the on-going nature of the conflict, as it is very easy for the State parties to blame the Court of applying double standards or for being biased. JEL: K410 Litigation Process