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University of Baltimore Journal of International Law

Abstract

Over the course of the year 2014, the situation in Ukraine has turned from a domestic political issue involving protests, killings, and the ouster of the former president, into a military confrontation with Russia. At the time of writing (August 2014), Russia has annexed Crimea and is supporting separatists, who are in a state of civil war against the Ukrainian state, in Eastern parts of the country. This conflict is ongoing and an unknown number of civilians have been killed, notably the passengers of the Malaysia Airlines flight MH17, which is thought to have been shot down over the conflict zone. Hundreds of thousands of Ukrainians have become refugees, the majority being internally displaced persons, many also fleeing into Russia. Both Ukraine and Russia are parties to the European Convention on Human Rights (ECHR). In addition to the individual complaints procedure, the European Convention on Human Rights allows for inter-state complaints. Ukraine has already used this procedural possibility, in the Crimea takeover in March 2014, to bring Russia before the European Court of Human Rights (ECtHR). While rarely utilized, this procedure has been employed by states to protect specific rights of citizens, or deal with a conflict with other states. In particular, in the absence of jurisdiction by, for example, the International Court of Justice (ICJ), the ECtHR is a forum which can be reached immediately so long as parties to the ECHR are involved.

This article analyzes the case law of the European Court of Human Rights in inter-state complaints pertaining to armed conflicts and situations of occupation. It will be shown that, although the conflict is still ongoing and the situation could be considered political in nature, there are indeed legal grievances for which the ECtHR is the right forum. In addition, the applicability of the ECHR to situations of armed conflict will be investigated. While the case between Ukraine and Russia is still pending before the ECtHR, the Court has already issued interim measures. While the European Court of Human Rights usually enjoys a very high rate of compliance, the question is if the current obvious non-compliance by both parties threatens to undermine the persuasive power of the ECtHR.

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