Oleksii Plotnikov, PhD, international judiciary
With this essay we continue investigating Russia’s interstate complaint against Ukraine to the European Court of Human Rights (ECtHR), related with Crimea’s issues. In a previous publication , we discussed why the Russian complaint looks like an attempt to delay its own defeat in international courts over Ukrainian cases. Now it is time to consider the most pressing issue for Crimea: the cessation of water delivery through the North Crimean Canal. This part of the complaint is perhaps the best illustration of its contradictory nature.
It is a persistent position of Russia, that Ukraine has allegedly violated its international obligations by cutting off water supply to Crimea. We have previously discussed  how the Russian lawmakers appealed to the UN High Commissioner for Human Rights alleging that Ukraine has deprived Crimean residents of access to drinking water. This appeal looked a bit strange in the light of the conclusions of the same Commissioner in 2017 that Russia as the occupying power “is obliged to ensure to the fullest extent of the means available to it sufficient hygiene and public health standards, as well as the provision of food and medical care to the population” .
Unsuccessful in Geneva, the Russian envoys tried their luck in Vienna. In March 2021, Russia’s representative to the OSCE accused Ukraine of “attempted genocide” due to cutting off water supplies through the North Crimean Canal. In the same speech, he mentioned certain articles of the European Convention on Human Rights, which, according to Russia, were allegedly violated by Ukraine. A slightly expanded version of the same set of Articles was included in the Russian complaint to Strasbourg.
The text of the Russian complaint to ECtHR itself has not been published, but from a press release submitted by the Russian Prosecutor General’s Office (if we disregard the clearly non-legal allegations of “revenge” by Ukraine for the “free choice” of Crimean residents), it follows that Russia claims violations of Articles 3 (prohibition of torture), 8 (right to private and family life), 14 (prohibition of discrimination) of the Convention, Article 1 of Protocol No. 1 (right to property) and Protocol 12 (general prohibition of discrimination).
The analysis of the available information should proceed from the fact that the right to water is not provided by the European Convention on Human Rights. However, Russia’s claim does not seem completely far-fetched. Indeed, the ECtHR has already found that contamination of drinking water can lead to a violation of the right to private life due to its negative impact on human health and well-being (“Dubetska and Others v. Ukraine”  and “Dzemyuk v. Ukraine” ). In “Hudorović and Others v. Slovenia” , the ECtHR also suggested the possibility of violation of the prohibition of inhuman and degrading treatment under Article 3 due to lack of access to drinking water. In principle, it is conceivable that the lack of water has hypothetically negatively affected property rights (for example, to exploitation of agricultural land) and could in some, virtual to this moment, way “lead to discrimination”.
Thus, Russia will insist on hypotheses that the rights of individual citizens may have been violated due to the blockage of the North Crimean Canal. But before the ECtHR can deal with a Russian complaint on the merits, it will have to consider jurisdiction, in other words, to determine whether it has the right to hear the complaint and whether Russia has complied with the formal preconditions. It can be expected that the Ukrainian representatives in Strasbourg will file a number of objections to jurisdiction, such as, for example, non-exhaustion of domestic remedies (Russia should have appealed first to Ukrainian courts and only then to the ECtHR), failure to comply with the six-month time-limit, etc. However, the answer to these arguments is highly predictable. Thus, Russia has already stated that the closure of the Channel constitutes an “administrative practice”, which allegedly eliminates the need to apply to Ukrainian courts. Regarding the deadline for the submission, Russia may state that there exists allegedly continuing violation. The Court’s consideration of these objections to jurisdiction will depend mainly on the quality of the parties’ arguments and counter-arguments.
At the same time, the Russian complaint reveals a critical problem, which is likely to become a primary battleground at the jurisdiction stage. It concerns the division of responsibility for securing human rights in the Crimea in general, and with particular regard to possible human rights violations as a result of the interruption of water supply through the North Crimean Canal. It became a commonplace that under international humanitarian law it is the occupying power that must meet the basic needs of the population of the occupied territory. Keeping this in mind, let’s look at the situation exclusively from the point of the ECtHR’s case law.
According to Article 1 of the Convention , the parties are to secure the rights and freedoms “to everyone within their jurisdiction”. That jurisdiction is usually territorial. In other words, in a normal situation, the state is responsible for securing the rights and freedoms provided for in the Convention on its territory. However, what if a state acts outside its territory, or on the contrary, does not control part of its territory because of the actions of another state?
There exists an abundant practice of the ECtHR, that where a state controls parts of a territory of another state, it is the state that exercises control which is responsible for securing human rights on such controlled territory. This is called “extraterritorial jurisdiction” of the state. Thus, in the case of “Loizidou v. Turkey”, the ECtHR recognized the responsibility of Turkey for the actions of its de facto controlled authorities in Northern Cyprus . In this case, or, remarkably, in “Ilaşcu and Others v. Moldova and Russia” , the ECtHR noted, that the State’s responsibility arose regardless of whether it controlled the territory “directly through military presence or indirectly through a subordinate local administration”.
The loss of control over a part of the territory does not relieve the state of responsibility for the state of human rights in this territory. However, such responsibly is limited to so-called “positive obligations”, which consist of measures practically possible in a particular situation. For instance in “Ilaşcu”, the ECtHR found that Moldova was obliged to take legal and diplomatic measures to save an individual from inhuman treatment in the territory controlled by Russia through the so-called “Moldovan Republic of Transdnistria”. However, it seems that there was not a single judgment of the ECtHR, where it would interpret a positive obligation as a duty of the state to deliver anything material to the territory occupied by another state.
Now let’s try to look at the situation through the eyes of Russian applicants. Russia’s principled position is that Crimea allegedly “became an integral part of its sovereign territory” in March 2014 as a result of the so-called “Crimean referendum”. This excludes the possibility for Russia to refer to the “Ilaşcu” standard, as positive obligations can exist for states only in relation to their own uncontrolled territory, and not in relation to the territory of other states. The territorial principle of jurisdiction under the Convention presents Russia with a choice: either Crimea should be directly recognized as the territory of Ukraine, or Ukraine somehow exercises control over Crimea after 2014, and it must be proved. Both options do not seem realistic for Russian authorities’ political reasons.
What Russia may try to do is to argue that the action that took place entirely in the territory controlled by Ukraine (the Canal is physically blocked in the Kherson Oblast), let to negative consequences in Crimea in violation of human rights. Such an approach may seem justified from the point of view of international environmental law. Indeed, the international courts and arbitrations have repeatedly concluded that states may be held responsible for the pollution affecting territories of other states. However, this approach is inapplicable in other areas of international law, including human rights law, as was demonstrated by the ECtHR in the case of “Banković and Others v. Belgium” .
The facts of the “Banković” case were as follows. In the course of the NATO operation against Yugoslavia in 1999, a missile launched from a plane hit a telecentre, killing civilians. Their relatives filed a complaint against the states involved in the operation. The question before the ECtHR was whether these states could be considered to have exercised such control over the territory of Yugoslavia at the time of the bombing as to establish that they exercised extraterritorial jurisdiction and were therefore responsible for violations of the Convention. The ECtHR answered the question in the negative. It emphasized that the wording of Article 1 of the Convention clearly indicated the territorial nature of the State’s control necessary to establish extraterritorial jurisdiction. That is, the state must be physically present in this territory. In the Court’s view, a distinction should be made between an action that takes place under territorial control and any other action. In particular, the ECtHR emphasized that the authors of the Geneva Conventions, which were adopted almost simultaneously (the Geneva Conventions in 1949 and the European Convention in 1950), indicated that States were obliged to ensure compliance with that Geneva Conventions, 1949 “in all circumstances”. This is different compared to the obligation under Article 1 of the European Convention to guarantee the rights to “everyone under their jurisdiction”.
Russia may try to challenge the findings of the ECtHR in “Banković” and refer to the general provisions on the responsibility of states for damage caused to the territories of other states. However, such a reference would contradict Russia’s own position in “Georgia v. Russia (II)”  case, where it argued that a distinction should be made between acts that could be attributed and those that took place under the jurisdiction of a state. Applying Russia’s own position to the situation with the Canal, it is difficult to deny that the blocking of water supply is an action of the state of Ukraine. However, its consequences have occurred in the territory where Russia exercises extraterritorial control and is therefore fully responsible for ensuring that all persons in that territory enjoy a full set of rights under the European Convention, regardless of the actions of other states.
It is currently difficult to predict whether Ukraine will refer to the “Banković” standard as a ground for challenging the jurisdiction of the ECtHR over the alleged human rights violations due to the closure of the North Crimean Canal. Such an argument may be undesirable, as it may be seen as a covert “recognition” of Russia’s “power” over Crimea. On the other hand, its application will depend on the wording used in the Russia’s complaint, as well as on the approach chosen by the Ukrainian representatives. However, regardless of the positions of the parties, it is unlikely that the European Court itself will avoid this problem. It is therefore desirable that Ukraine at least determines a position before the ECtHR on the limits of its own responsibility for the observation of human rights in Crimea and on whether the closure of the North Crimean Canal could lead to a breach of its positive obligations under the Convention.