The European Convention on Human Rights in the Context of the Russian-Ukrainian

Abstract

Annotation: In late 2014, the mother of a young woman who was on board the Malaysia Airlines aircraft which was shot down over eastern Ukraine in the summer of 2014 brought a case against Ukraine before the European Court of Human Rights. The applicant claimed that Ukraine had failed to close its airspace and in doing so had violated the human rights of her daughter. This raises a number of issues concerning the applicability of the European Convention on Human Rights to the current situation in parts of Ukraine which are not under the full control of the Ukrainian government. Both Russia and Ukraine are parties to the European Convention on Human Rights. Every victim of a human rights violation who was under the jurisdiction of a state party at the time in question can bring a case to the European Court of Human Rights. The issue of jurisdiction is distinct from the title to a territory under international law. It is possible that Russia, directly or indirectly, is exercising jurisdiction in some parts of Ukraine. This, however, does not mean that Ukraine would have lost all legal responsibility. There might still be a residual responsibility of Ukraine. In addition, the question has to be asked if there are domestic remedies which would have to be exhausted before bringing a case to the European Court of Human Rights. Residents of parts of Ukraine currently controlled by Russia should not be required to exhaust remedies offered by Russia in order for their case to be admissible to the European Court of Human Rights.

Key words: Ukraine, Russia, Crimea, Donbass, European Convention on Human Rights, European Court of Human Rights, MH17.