On 13th March 2014, the European Court of Human Rights (ECtHR) has intervened in the ongoing conflict between Russia and Ukraine by indicating provisional measures under Rule 39 of the Rules of Court (cf. Press Release ECHR 073 (2014)). One might ask: Why does the Court undergo such a burden? Or, seen from another perspective: Why is the Court attributing itself such a power? Do the judges really belief that they can pacify an international conflict, which international diplomacy is unable to solve, just by means of an interim injunction? The attempt of defining a position.
The ECtHR, bound by the law
The first question is relatively easy to answer: The Court is undergoing such a burden because it is bound to do so. ECtHR acts – as indeed every court does – according to the rules of the law. Therefore, the indication of provisional measures by the Court is not some kind of activism. The ECtHR has not acted on its own motion but on the request submitted by Ukraine in an inter-state complaint under Article 33 of the Convention.
Inter-state complaints are part of the classical mechanisms in human rights treaties. Normally, governments are very reluctant to make use of them – according to the well-known saying: ‘dog don’t eat dog’. Such considerations, however, no longer play a role in the event of an outbreak of hostilities, be it open or disguised. Hence, it is not surprising that in the 2008 military conflict between Georgia and Russia, (even two) inter-state complaints were lodged (webcasts of public hearings here and here). Interestingly, the Court indicated provisional measures in this case as well.
The risk of losing authority
On the other hand, the ECtHR takes a considerable risk by the indication of provisional measures, namely, the risk of losing authority in case the measures are not followed. In order to correctly assess this risk, it is necessary first of all to examine whether measures indicated under Rule 39 are legally binding or whether they might be merely recommendatory in character. Exactly the latter – the non-binding character of provisional measures – was the original position of the Court (cf. the Cruz Varas and others case).
In the case of Mamatkulov and Askarov, however, the Court gave up its jurisprudence – influenced by, it may be noted, the ICJ’s findings in the LaGrand case. Since then, the ECtHR’s position is that provisional measures are binding in character. According to the current Press Release, the President of the Third Section has called upon the conflicting parties
to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment).
It is difficult to hold a priory that the conflicting parties would not be bound by this indication, because it might be too vague.
The risk remains, however, that the conflicting parties will ignore the indication of provisional measures, notwithstanding their binding nature. But this is no specificity of the ECtHR. The ICJ equally reacted to the outbreak of violence between Cambodia and Thailand in 2008/2009 on account of the Temple of Preah Vihear by indicating provisional measures (under Article 41 of the ECJ Statute). Such indications by their very nature run the risk of not being followed by the conflicting parties.
What kind of sanctions are at hand of the ECtHR in case Russia ignores the indicated provisional measures? The answer is not clear-cut. True, according to a well-established case-law of the ECtHR in individual complaint procedures, ignoring the indicated provisional measures leads to a further human rights violation (namely, the violation of the right of individual petition under Article 34 of the Convention). As a consequence, the Court might afford just satisfaction under Article 41 of the Convention. The question, however, is whether the same holds true for inter-state complaints. But even supposed this were the case – who believes that Vladimir Putin will give up his plans faced solely by the vague risk of having to pay just satisfaction?
International ‘forum shopping’
Another question that might be asked is whether the ECtHR is the ‘right’ court to adjudicate the case. Surely, the human rights of the Ukrainian people (particularly the right to life under Article 2 of the Convention) are highly at risk in this conflict. But at the heart of the conflict is the allegation that Russia is breaching international law by intervening into the internal affairs of Ukraine. Would it not be more appropriate to have such a question decided by the ICJ seated in The Hague? May the Strasbourg complaint be regarded as a case of international ‘forum shopping’?
The answer to this question can be found again by comparing the military conflict between Russia and Georgia to the current situation. Georgia, for its part, had not only lodged two inter-state complaints before the ECtHR but also brought the case before the ICJ. The problem, however, is that in order to be able to bring a case before the ICJ, the conflicting parties must additionally accept the Court’ jurisdiction. This was not so in the Georgian case, which is why the ICJ declared Georgia’s application inadmissible.
The difference in Strasbourg proceedings becomes apparent: Inter-state complaints (as well as individual complaints) do not require a further acknowledgement of the ECtHR’s jurisdiction. Instead, all parties have access to court. The question of Russia’s possible breach of public international law is solely a preliminary issue to a possible violation of Article 2 of the Convention.
Does the ECtHR, consequently, become a ‘branch’ of the ICJ? One might well doubt the reasonableness of such a function. It is not the ECtHR’s task to decide general questions of public international law in cases where the ICJ lacks jurisdiction. In the past, there have been cases where the ECtHR has managed to evade such a function. In the Banković case, e.g., the ECtHR decided that it had no jurisdiction ratione loci. As a consequence, the Court avoided having to decide on the highly problematic NATO intervention in Kosovo. Another example is the case of Prince Hans Adam II. of Liechtenstein vs. Germany where the Court accorded Germany an extremely wide margin of appreciation in dealing with the consequences of having been occupied after World War II. At the same time, the ICJ held that it had no jurisdiction ratione temporis.
However understandable it might be that the ECtHR tries to evade certain conflicts, Article 15 of the Convention speaks a clear language: Even in conflicts that threaten the “life of the nation”, human rights (in principle) remain applicable. One might even hold that in military conflicts, human rights are all the more in need of protection, compared to every-day cases like discrimination on account of a fire service levy (then) amounting to 225 DM. This is an argument in favour of the Strasbourg Court exercising its jurisdiction even in highly controversial cases of public international law.
I am sure that the ECtHR judges are prudent enough to know that they cannot solve the conflict between Russia and Ukraine by indicating provisional measures. The fact that the Court did indicate provisional measures can be regarded and praised as proof of a growing ‘juridification’ of international relations. There is a certain irony to the fact that Russia, being a former and currently reviving Great Power, is bound by the Strasbourg machinery.