Oleksii Plotnikov (PhD, international judiciary)

In continuation of the study of the Russian complaint against Ukraine to the European Court of Human Rights (in the part that relates directly to the Crimea, the previous articles can be found here [1] and here [2]), let’s look at this complaint from the point of view of the merits. As a reminder, the process before the European Court of Human Rights (ECtHR) includes consideration of any complaint of violation of the European Convention on Human Rights on the admissibility, that is, whether the ECtHR can consider such a complaint at all, and on the merits that is, whether there has been a violation of European Convention.

Earlier, we discussed that Russia’s appeal contains numerous jurisdictional problems, which, with a high probability, will lead to the rejection of the complaint, at least in the part that concerns the North Crimean Canal, already at the stage of admissibility [2]. But let’s imagine that the interstate complaint of the Russian Federation against Ukraine will nevertheless overcome the barrier of admissibility in the ECtHR. Will the arguments of the aggressor state be sufficient to find violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms?

Judging by the press release published by the Prosecutor General’s Office of Russia [3], Russia’s position is essentially that, in allegedly violation of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Ukraine unilaterally cut off the source of fresh water supply to the Crimea, which allegedly led to negative humanitarian, environmental, economic consequences, in particular for vulnerable groups. According to the occupying power, the blocking of the canal was aimed at moral pressure on the local residents of the peninsula for expressing their political position during the so-called “Crimean referendum”. Further, the Russian General Prosecutor’s Office refers to the “damage” to the “budget of the “Republic of Crimea” and local budgets”.

Ultimately, according to Russia, the “water blockade of Crimea” by Ukraine “constitutes a violation of rights enshrined in Articles 3, 8, 14 of the European Convention (in conjunction with Articles 3, 8 of this Convention), Article 1 of Protocol No. 1, Protocol No. 12 to the European Convention in relation to 2.5 million permanent residents of the Crimea and several million people who come for rest and treatment of citizens of Russia and other states, including Ukraine”. According to Russia, already on March 3, 2016, allegedly “the Office of the UN High Commissioner for Human Rights (OHCHR) demanded that Ukraine investigates allegations of human rights violations during the blockade of the Crimea”. Considering these requirements, one should immediately discard everything that does not concern the European Convention, and under no circumstances will be considered by the ECtHR.

Firstly, the ECtHR will not consider Russia’s claims of violation of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes. The task of the ECtHR is to establish a violation or non-violation of only one international treaty – the European Convention on Human Rights. Therefore, the ECtHR will not assess whether Ukraine had the right to block the North Crimean Canal in principle. We have already analyzed why the Convention on Transboundary Watercourses does not apply to the North Crimean Canal [4], so we will not consider this issue in more detail.

Secondly, the presentation by the Russian side of a detailed “estimate of the budget losses” of the de facto invaders’ “authorities” does not make sense. The ECtHR cannot and will not consider any issues related to damage to the state, since the European Convention concerns only human rights, but not the rights of states.

Third, the persistent use of the term “blockade” is clearly intended to be misleading. No blockade of the Crimea, water, energy, food, etc., exists, since the Crimea is not cut off either from the territory of the occupying power (of course if the application’s authors do not deny the existence of the “Crimean bridge”), or from the rest of the world. Ukrainian military vessels do not block the Crimean ports, so nothing prevents Russia from supplying necessary goods, including water, by sea.

It seems that the persistent repetition of the word “blockade” is intended to create an analogy for the external reader with the problem of the blockade of Gaza, which is sensitive for the international community, but in reality there is only a cessation of the supply of one resource through one of the possible supply channels. Why the situation with the Crimea is not a blockade is discussed here [5], and the author of this essay also once wrote a rather lengthy article here [6]. Therefore, the assertion of Russia that human rights violations stem from the “water blockade”, at least, such a wording was used in the press release, looks completely unfounded.

Fourth, the authors of the Russian application claim that the Office of the UN High Commissioner for Human Rights allegedly demanded Ukraine to investigate human rights violations during the blockade of Crimea on March 3, 2016. Indeed, on that day, the OHCHR published a Report on the Human Rights Situation in Ukraine for the period from 16 November 2015 to 15 February 2016 [7]. Here the authors of the Russian claim used several manipulations at once.

First, there are no demands for Ukraine in the report, but only recommendations. Secondly, the report mentions not a “blockade” but a “civil blockade”, meaning the well-known events of late 2015 – early 2016, when a group of people temporarily blocked the administrative border between Ukraine and Crimea from the mainland side. The report does not mention the North Crimean Canal at all, and its closure is not viewed by the OHCHR as part of a “civil blockade”.

Third, the report recommends to “investigate all claims of human rights abuses committed during the ‘civil blockade’ on the administrative boundary line between mainland Ukraine and Crimea”. The substantive part of the report mentions the existence of allegations of human rights violations both on the part of activists, who organized the “civil blockade” (for example, on attacks on persons trying to cross the administrative border), and in relation to organizations that were associated with activists (including an explosion in the office of one of them). That is, it was about the need to investigate a specific situation of violence, and not about the supply of to the Crimea anything, including water. At the same time, the water supply to Crimea was stopped before the “civil blockade” and in a completely different manner.

And fourthly, it is noteworthy that having found a convenient word for itself among the recommendations of the report dated April 3, 2016, the Russian side did not pay attention to other OHCHR recommendations, for example, the recommendation to the de facto “authorities” of Russia in the Crimea to allow independent international observers to the peninsula, to cancel the ban Mejlis, to stop persecuting Crimean Tatars and to investigate violations of their rights.

Let’s return, however, to the text of the Russian press release. What is left of it after removal of all the many political statements and manipulations? What remains is “a widespread violation of the rights enshrined in Articles 3, 8, 14 of the European Convention, Article 1 of Protocol No. 1, Protocol No. 12”. The Article of Protocol 1 should be excluded, since it deals with property rights. Judging by the Russian press release, the Russians claim only a violation of the state’s property rights, therefore, complaints related to it will not be considered. In principle, it cannot be ruled out that the full text of the complaint describes some violations of the property rights of individuals, but the analysis of this assumption is impossible due to the lack of information.

Allegations of violation of the rights established by Article 14 of the European Convention and Protocol No. 12 should also be cut off. Both provisions relate to the prohibition of discrimination and are considered in connection with other rights in the enjoyment of which this very discrimination occurs. Discrimination cannot exist on its own, and always occurs in connection with other articles of the European Convention. Only two of them are left: 3 and 8. The third article prohibits torture, the eighth – protects the right to private and family life.

Let’s start with Article 8, where the ECtHR indeed developed some practice related to water, including on Ukraine. In cases “Dubetska and Others v. Ukraine” [8] and “Dzemyuk v. Ukraine” [9], the ECtHR did establish a violation of the right to privacy. Both cases concerned the deterioration of the applicants’ health caused by industrial pollution of the water supply and the lack of government response to the deterioration in the quality of drinking water. The issue of the right to water in the light of Article 8 is considered in even more detail in the case of “Hudorovič and Others v. Slovenia” [10]. In this case, the ECtHR established that the state has a positive obligation to ensure access to drinking water.

What does “positive obligation” mean? It means an obligation to take an action (as opposed to a negative obligation, which implies a duty to refrain from acting). That is, the state must take efforts to ensure that everyone under its jurisdiction has access to drinking water. This conclusion is important for the issue of the North Crimean Canal, because water does not flow into the Crimea naturally.

The functioning of a complex hydraulic structure, such as a canal, requires human labor, i.e. active efforts. There is no difference between a canal and, for example, a water pipeline. Through the canal water reached the consumers in accordance with commercial contracts. After the occupation of the Crimea, Russia has never formally approached Ukraine regarding the renewal of water supply agreements. Moreover, according to Ukrainian officials [11], it was Russia that ceased water supplies to the Crimea in April 2014, after it seized a part of the canal located in the Crimea, while the decision to block the canal from the Ukrainian side was taken in May, 2014.

Returning to the concept of “positive obligations”, it means that that where a state is prevented from exercising authority over a part of its territory, whether as a result of foreign occupation or not, it retains jurisdiction in the meaning of Article 1 over such territory, but this jurisdiction is reduced to “positive obligations”, including “all the legal and diplomatic means” available to continue to guarantee the enjoyment of rights and freedoms under the European Convention, as it is pointed in the § 333 of “Ilascu and Others v. Moldova and Russia” [12]. If the ECtHR applies this standard, it can, in theory, verify whether Ukraine took all legal and diplomatic measures to ensure the right to water to the residents of the Crimea, but this understanding of positive obligations seemingly does not include a duty to deliver anything, including water, to the territory outside of the state’s control.

If the ECtHR hypothetically finds an interference with the right to private life, its duty will be to establish whether such interference was in accordance with the law, whether it pursued a legitimate aim, and whether it was necessary in a democratic society. As to the first two elements of the test, the ECtHR may experience difficulties in establishing the law of which state applies in the case regarding the essence or Russia’s demands. If it does find, that it is the law of Ukraine, the latter is likely to claim that the closure of the Canal resulted from a commercial dispute and an outstanding debt. As for legitimate aim, here Ukraine is likely to refer to the situation of an armed conflict threatening the life of the nation and the legitimate aim of protection of sovereignty.

Finally, as for necessity in a democratic society, the case seems to present a dilemma of a balance between the interest of protection of sovereignty and private life. At that, the claim of sovereignty will be pretty straightforward. As for the Russian claim, the effect on individual private lives appears very distant from Ukraine’s action. This connection will look like a very long chain of events, each link of which will make Russia’s arguments more and more fragile. Thus, the restriction of water supply was the result of the decision of the Russian de facto “authorities”, namely their inability to enter into an agreement with Ukraine on water supply by the Canal, as users have accumulated a debt through which Ukraine closed the Canal.

Or if the environmental accident on the “Crimean Titan” allegedly resulted from the exploitation of the plant in the conditions of water scarcity, that would resulted from the failure of the management to agree with the Russian de facto “authorities” on water delivery, that resulted from the absence of necessary amounts of water, that resulted from the failure of the de facto “authorities” to agree on water delivery with Ukraine, which was a consequence of the debt on the part of the structures of the Crimea to Ukraine, that closed the Canal.

Such a “House that Jack built” – like chain of reasoning and allegations may become even longer if more facts come to the knowledge of the ECtHR, and each fact will render a causal relationship between the act of Ukraine and the effect on the private life of an individual resident of the Crimea increasingly illusive. We hope that the above pointed will be enough to make it clear that before accusing Ukraine of violating the right of residents of Crimea to privacy, Russia will have to explain to the ECtHR more than once its own inactivity in providing Crimean inhabitants with water.

However, there is still a Russian argument that relies on Article 3 of the European Convention. This article prohibits torture, inhuman and degrading treatment. Restriction of access to water can be considered as such treatment, for example, when it comes to torture by thirst, or ignoring the needs of a person who is completely dependent on the state (prisoner, seriously ill, etc.). The ECtHR, however, never considered the limited access to water for people who are not completely dependent on the state as a violation of the prohibition of torture, inhuman or degrading treatment.

This can be compared to “Teitiota v. New Zealand” [13], where the UN Human Rights Committee concluded in 2020 that although as a result of climate change the applicant lost access to natural sources of fresh water, and would have to rely on rationed supplies, this did not pose a “reasonably foreseeable threat of a health risk that would impair his right to enjoy a life with dignity or cause his unnatural or premature death”.

The Crimea is obviously in a better position than Tarawa. It has sources of drinking water, and delivery of water is much easier. After all the Russian representatives do not hesitate to talk about the violation of the rights of not only Crimean residents, but also the Russian “tourists”. Therefore, it will probably be difficult for the European Court to believe that the water situation in the Crimea is so critical that it amounts to torture or inhuman treatment.

1. https://arc.construction/17621?lang=uk

2. https://arc.construction/18155?lang=uk

3. https://epp.genproc.gov.ru/web/gprf/mass-media/news?item=63838459

4. https://arc.construction/3821?lang=uk

5. https://arc.construction/1785

6. http://www.jusintergentes.com.ua/images/2015/4/Plotnikov.pdf

7. https://www.ohchr.org/Documents/Countries/UA/Ukraine_13th_HRMMU_Report_3March2016_Ukrainian.pdf

8. https://zakon.rada.gov.ua/laws/show/974_689#Text

9. https://zakon.rada.gov.ua/laws/show/974_a51#Text

10. http://hudoc.echr.coe.int/eng?i=001-201646

11. http://euromaidanpress.com/2014/04/28/crimean-self-proclaimed-government-spreads-hype-about-ukraine-turning-off-water-supply-hiding-its-own-incompetence/

12. http://hudoc.echr.coe.int/eng?i=001-61886

13. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR/C/127/D/2728/2016&Lang=en