This analysis was first published on Lexis®PSL on 20 February 2023 and can be found here (subscription required).
Arbitration analysis: The Grand Chamber of the European Court of Human Rights (ECtHR) ruled that the Russian Federation exercised jurisdiction over the territory of eastern Ukraine held by separatists from 11 May 2014 and up to at least 26 January 2022. This finding has been established beyond reasonable doubt based on the evidence furnished by Ukraine, the Netherlands and third parties, as well as adverse inferences the court drew. The ECtHR’s decision paves the way for other inter-State and individual complaints against Russia associated with potential violations of the European Convention on Human Rights (ECHR) in eastern Ukraine in the context of the ongoing international armed conflict there. It also may serve as an authoritative source to support a tribunal finding of jurisdiction in potential investor-state arbitrations against Russia provoked by the war in Ukraine. Written by Tomas Vail, principal at Vail Dispute Resolution, Anastasiya Ugale, independent international law & arbitration counsel.
Ukraine and the Netherlands v Russia European Court of Human Rights, Applications nos 8019/16, 43800/14 and 28525/20
What are the practical implications of this case?
The Russian Federation ceased to be a party to the ECHR on 16 September 2022. The ECtHR therefore has jurisdiction to hear cases against the Russian Federation for acts and omissions that took place prior to that date. There are currently five inter-State cases against Russia and around 8,500 individual applications pending against Ukraine, Russia, or both before the ECtHR in relation to the conflict in Ukraine. The findings of the ECtHR will open the door for the pending cases to move forward and likely encourage further applications against Russia for violation of human rights during the war.
The ECtHR also spent considerable time defining Russia’s jurisdiction over the territories of eastern Ukraine and recognised that Russia had extended its jurisdiction beyond its borders. The ECtHR applied the effective control test that focused on Russia’s military presence and ‘extent to which its military, economic and political support for the local subordinate administration [in eastern Ukraine] provide[d] it with influence and control over [eastern Ukraine held by separatists]’. The ECtHR’s decision may inspire qualified investors under Russia’s investment treaties to argue that the Russian Federation has jurisdiction over eastern Ukraine based on the effective control test applied by the ECtHR and claim damages for alleged violations in the context of the current war. The language of the ECHR defining the scope of its application, however, differs from many international investment treaties. The ECHR refers to ‘everyone under the jurisdiction’ of the respondent State (ECHR, Article 1), whereas the protections of many bilateral investment treaties (BITs) extend over the ‘territory’ of the respondent State (see, eg, Ukraine-Russia BIT, Articles 2–3, 5). In its non-disputing party submission in a case concerning Crimea, Ukraine argued that the term ‘territory’ may be read broadly by application of the effective control test (see, eg, PJSC CB PrivatBank and Finance Company Finilon LLC v The Russian Federation, PCA Case No 2015–21, Interim Award (Corrected), 27 March 2017, para 181). The term ‘territory’, according to the tribunal, included ‘territory over which a State exercises settled jurisdiction or control and on behalf of which it has assumed responsibility for international relations’ (ibid, para 186). Until September 2022, when the Russian President announced incorporation into Russia of the self-proclaimed ‘Donetsk People’s Republic’ (‘DPR’) and the ‘Luhansk People’s Republic’ (‘LPR’), as well parts of Ukraine’s Zaporizhzhia and Kherson regions, the Russian Federation had not publicly assumed responsibility for international relations of these areas. Whether arbitral tribunals will take into account the criteria for the effective control test used by the ECtHR remains to be seen.
Further, the ECtHR’s finding of Russia’s extended jurisdiction based on effective control was grounded in the detailed evidence supplied by the applicants and third parties, as well as adverse inferences the ECtHR drew from the respondent State’s pleadings. The Russian Federation declined to provide submissions or evidentiary material on key issues that were wholly or in large part within its exclusive knowledge, citing national security and lack of relevance. The ECtHR emphasised a ‘distinct lack of frankness and transparency’ in the respondent’s pleadings. Should the Russian Federation decide to participate in the potential investor-state arbitration cases against it, it may consider providing evidence concerning its influence on the separatists’ military strategy, provision of political and economic support, weapons, other military equipment to the separatists and artillery coverage of the separatists’ positions. Depending on the evidence to be supplied, arbitral tribunals may come to a different conclusion as to the level of control that the Russian Federation exercised over the DPR and LPR.
Moreover, the ECtHR distinguished between the finding of Russia’s extended jurisdiction and the issue of attribution that would be reviewed on the merits. It however emphasised that ‘the acts and omissions of the separatists are [automatically] attributable to the Russian Federation in the same way as the acts and omissions of any subordinate administration engage the responsibility of the territorial State’. This automatic attribution seemingly creates a presumption, which the ECtHR invited Russia to rebut by demonstrating on the merits ‘that the separatists did not, in fact, control particular pockets of land or commit the particular acts which form the basis of the allegations by the applicant states; or that the specific acts of particular separatists cannot be attributed to them’. Future arbitral tribunals may grapple with a different set of evidence when deciding the issue of attribution. Further, whether the rule of automatic attribution formulated by the ECtHR is applicable in the investor-state context is also an issue for future tribunals to decide.
What was the background?
The case combines three applications brought against Russia by Ukraine and the Netherlands related to the armed conflict in eastern Ukraine. Ukraine complained of the patterns of conduct (administrative practices) by the separatists and Russian military that allegedly constitute violations of human rights in eastern Ukraine. It also complained of the abduction of children in eastern Ukraine. The Netherlands complained of the downing of the Malaysia Airlines flight MH17 on 17 July 2014, which resulted in the deaths of 298 people, including 196 Dutch nationals.
The case is unusual in that it concerns the alleged acts and omissions of the respondent state taking place largely outside of its borders. Article 1 ECHR obligates the contracting states to secure relevant rights ‘to everyone within their jurisdiction’. Such jurisdiction traditionally connotes territorial application, with other bases of jurisdiction being exceptional. This exceptional jurisdiction outside of the principle of territoriality may be established based on effective control exercised over the foreign territory in question (ratione loci). The question of whether a contracting state is genuinely exercising effective control is factual and must be established beyond reasonable doubt. .
What did the court decide?
In a November 2022 decision publicly delivered on 25 January 2023, the ECtHR found that the separatists-held areas in eastern Ukraine were, from 11 May 2014 and up to at least 26 January 2022, under the jurisdiction of the Russian Federation. It established beyond any reasonable doubt that Russian military personnel was present in an active capacity in Donbass at least from April 2014 and there was a large-scale deployment of Russian troops from August 2014 at the latest. That alone, however, was insufficient to establish jurisdiction under the effective control test. The ECtHR analysed the vast body of evidence and found that ‘as a result of Russia’s military presence in eastern Ukraine and the decisive degree of influence and control it enjoyed over the areas under separatist control in eastern Ukraine as a result of its military, political and economic support to the separatist entities, these areas were, from 11 May 2014 and subsequently, under the effective control of the Russian Federation’.
The ECtHR grounded its conclusions in the evidence provided by the applicants and third parties, as well as adverse inferences it drew from Russia’s pleadings.
The ECtHR also recognised that the ‘State w[ould] ultimately only be held responsible for breaches of the Convention if the impugned acts or omissions [were] attributable to it’. It, however, concluded that ‘in cases where a State’s ratione loci jurisdiction [was] established outside its sovereign borders, the acts and omissions of the local administrations in the areas concerned w[ould]…be automatically attributable to the State’.
The ECtHR also found admissible, based on sufficiently substantiated prima facie evidence, the complaint regarding administrative practices in eastern Ukraine held by separatists consisting of destruction, theft and looting of private and commercial property, and unlawful appropriation of private property without compensation. The majority of other complaints of administrative practices were also found admissible, consisting of the complaints of unlawful military attacks against civilians and civilian objects, including the shooting down of Malaysian Airlines flight MH17 on 17 July 2014, the shooting of civilians and the summary execution and torture or beating to death of civilians and Ukrainian soldiers who were prisoners of war or otherwise hors de combat; forced labour; abductions, unlawful arrests and lengthy unlawful detentions; deliberate attacks on, and intimidation of, various religious congregations not conforming to the Russian Orthodox tradition; the targeting of independent journalists and the blocking of Ukrainian broadcasters; prohibition of education in the Ukrainian language; targeting of civilians of Ukrainian ethnicity or citizens who supported Ukrainian territorial integrity; and abduction of children.
Case details
• Court: European Court of Human Rights
• Judge: Siofra O’Leary, President
• Date of judgment: 30 November 2022, delivered 25 January 2023
Tomas Vail is a principal at Vail Dispute Resolution, and Anastasiya Ugale is an independent international law & arbitration counsel If you have any questions about membership of our Case Analysis Expert Panels, please contact caseanalysiscommissioning@lexisnexis.co.uk.
Authors: Tomas Vail & Anastasiya Ugale
Originally Published: https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/67KP-1293-SJCV-R28B-00000-00?utm_source=psl_da_mkt&utm_medium=referral&utm_campaign=who-is-in-control?-russia-exercised-effective-control-over-eastern-ukraine-since-may-2014-(ukraine-and-the-netherlands-v-russia,-echr)
Publish Date: February 20, 2023