Introduction
The selected research object reflects the human right to life in the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR). A narrow focus of research is the Russia-Ukraine armed conflict. Since the war initiated by Russia against Ukraine in 2022 is ongoing, all the literature on this topic is current. There are many sources concentrated on the nature of the conflict and its relation to the events of 2014 and the annexation of Crimea (Ukraine’s autonomous region) by Russia.
Another common topic of research in current studies is the violation of the human right to life in the regions of Ukraine where hostilities are taking place. Also, researchers pay attention to the functioning of the ECtHR and its resolutions in reaction to armed conflicts and their victims.
For this literature review, ten sources were selected from the bibliography. The paper is laid out in the following way: it starts with a review of the literature on ECtHR’s functions and then moves to the synthesis of scholarly studies on the protection of human rights to life for armed conflict victims by the ECtHR. The next part of the analysis dwells on the literature researching the application of the ECHR to the victims of the Russia-Ukraine war. Finally, the reflection of a provocative topic of conflicting declarations of Russia against Ukraine at the ECtHR will be discussed. The reason for structuring the paper this way is that the sequence of topics will allow for a logical review of the critical topics constituting the selected research object.
Functions of ECtHR in Relation to the Protection of the Right to Life
The sources used for this part were selected based on their contribution to the research topic, namely, their discussion of ECtHR’s functioning. The article by Mykhailichenko and others focuses on protecting the right to health during an armed conflict. However, the source also sufficiently describes the ECtHR’s work. Most importantly, it involves the analysis of Ukrainians’ experience of human rights violations. Therefore, this source is valuable for the current research and should be reviewed closely.
It is mentioned that Russia’s refusal to comply with the rules and customs of warfare leads to the violation of the most crucial human values, such as the right to life. The researchers base their statements not on mere personal judgment (as they are Ukrainians) but on solid facts and statistics from numerous national and international sources. ECtHR is the entity with the largest potential of similar institutions to protect human rights.
However, the authors also note that in the ongoing war resolved by Russia against Ukraine, international organizations’ representatives are simply not allowed to enter the territories, so the work of the ECtHR in the direction of protecting Ukrainian citizens’ right to life is disrupted next to impossible. The strength of the evidence in the source and the inclusion of key points pertaining to the selected research topic make this article a relevant contribution to the literature on the topic.
Another contribution to the subtopic of the ECtHR’s functioning is the study focused on its autonomous interpretation. An evident weakness of this research is the lack of discussion of Ukrainian citizens’ right to life in relation to the Russia-Ukraine war. However, the selection of this source is justified due to its analysis of Ukraine’s obligations related to the implementation of European standards of fundamental human freedoms and rights. As such, the article dwells on the issue of the ECtHR’s autonomous interpretation, which is based on the European consensus that the imperative standards for the application of human rights in practice are established by the ECtHR.
Based on this article, it is possible to evaluate the level of Ukraine’s contribution to maintaining human rights in accordance with the ECtHR, as well as to assess the violation of these rights, particularly the right to life, by Russia. This source may not be directly connected to the research topic, but it is valuable due to giving an opportunity to evaluate the efforts of Ukraine in sustaining the right to life and to establish the level of violation of this right by the invading country during an armed conflict.
Protection of the Right to Life of the Victims of Armed Conflicts
The next subtopic and sources selected for its discussion are more directly concerned with the research topic. The first study under review has a generalized title but dwells on Ukraine in detail. The authors emphasize the inconsistencies in the ECtHR’s inconsistencies in ability to improve the right to life for people under occupation, which makes the source highly relevant yet brings no good news for the people of Ukraine. The scholars make a good point by explaining the ECtHR’s interpretation of Article 1 of the ECHR, which presupposes that its jurisdiction is valid regarding military occupation but is invalid in the case of waging war outside national territory.
Hence, as Russia’s membership in the Council of Europe was terminated on September 16, 2022, those Ukrainians who have remained under occupation after that date will not be able to rely on the Convention in the issue of protecting the right to life. Although being somewhat subjective and partial in narration (with the use of words such as ‘discouraging,’ ‘unfortunately, ‘even’), the source contains a valid analysis of important processes taking place in the ECtHR. The inclusion of cases, especially Georgia v. Russia, 2021, makes it possible to relate the analyzed facts to the current Russia’s invasion of Ukraine and violation of the human right to life.
The other source in this subtopic is more directly related to the research topic and contains a more valid argumentation of facts. The author is sharp in her position on the ECtHR’s progressive retreat from its leadership position in extraterritorial jurisdiction. However, the author is not subjective in her arguments, backing them up with evidence and research by other scholars. That is why this source is important for the chosen research topic, as it gives an opportunity to analyze not only the activity of the ECtHR but also its inactivity in some cases.
The important issues of de jure and de facto authority, extraterritorial jurisdiction, and effective control, discussed in the source, are also important for analyzing the research topic. As for the close focus on the question of the Russia-Ukraine armed conflict’s victims, the author pays attention to the fragmentary approach of the ECtHR to this question. It is, thus, possible to consider this article a relevant source for the research topic due to its provision of a non-biased opinion on the issues in question.
Each article in this subtopic has some weaknesses, but their strengths make them relevant to the current research. Although some statements may sound subjective, the scholars always manage to provide examples and back up their arguments with evidence. The most significant outcome of using these articles will be the ability to understand the premises on which the ECtHR functions regarding the right to life, particularly in the aspect of the Russia-Ukraine war.
Application of the ECHR to the Victims of the Russia-Ukraine War
The ECHR is no less important in the discussion of the selected topic since its premises are incorporated into the work of the ECtHR. The bulk of publications selected for this subtopic belong to the authorship of Stewart Wallace. This scholar is an expert in human rights law and human rights and military operations, and he pays much attention in his studies to the right to life during military operations in general and to the Russia-Ukraine war in particular. The monograph on the application of the ECHR to military operations contains a thorough analysis of how the ECHR is enacted in different kinds of military conflicts. The inclusion in the book of such chapters as jurisdiction over domestic and extraterritorial military operations, norm conflicts, and detailed analysis of the Convention’s articles represents the relevance of the book for a variety of topics, including the one in question.
Moreover, the author dedicates a separate chapter to a seemingly negative issue – derogation. However, in an engaging and persuasive manner, the positive effects of this practice are described. The credibility of the author’s arguments is proved by his rich experience in the field, as well as by a substantial list of resources used for the monograph. Although the book was published before the full-scale war of Russia against Ukraine, it contains an analysis of what was the trigger of this war – the 2014 conflict and annexation of Crimea.
Another source was also published prior to February 2022 but is also no less relevant. The analysis of the application of the ECHR to the conflict in Ukraine helps both to trace the roots of the ongoing war between Russia and Ukraine and analyze the role of the ECHR in these processes. Specifically, Giuffré, Wallace, and Malory argue that the ECtHR has created much uncertainty, confusion, and complexity that disables the effective enactment of the ECHR. The article also pays much attention to the conflict in Eastern Ukraine that has been going on since 2014 and resulted in a full-scale war in 2022. Thus, the source is valuable in terms of understanding the beginning of the key research problem and allows for the tracking of changes throughout the conflict’s escalation.
It is further possible to analyze the ECHR’s role in the Russia-Ukraine war by reviewing another article by Wallace, the focus of investigation in which is derogations from the ECHR. Although derogations offer an undeniable benefit, it being the creation of a distinction between normality and emergency, the author notes that countries frequently employ derogations for entrenched emergencies. The analysis of derogations during military operations, in particular, Ukraine’s derogation of 2015 after the annexation of Crimea, presents a source for analysis of the events that were at the core of Russia’s 2022 invasion of Ukraine. Since it is always crucial in research to understand the primary causes of events, the article is helpful in interpreting the current state of affairs, especially the role of the ECHR and its potential to protect the right to life of Ukrainian people under Russia’s attack.
Finally, the analysis of genocide from the international law perspective offered by Nia, Nadalizadeh, and Kouhestani is a substantial source of information on the selected topic, as genocide is the violation of the right to life, which is the most valuable of all human rights. One weakness of this source is the lack of direct discussion of the ECHR. However, the authors extensively analyze the genocide of Russia against Ukraine in terms of international law. Thus, the source was included in the literature review due to pertinent scrutiny of the ability of international law to effectively manage the international order and, particularly, the right to life. The last source selected for this subtopic, as well as the other three, is significant in the analysis of the research topic.
Conflicting Declarations: Russia against Ukraine before the ECtHR
The last subtopic of the literature review is somewhat unpredictable in terms of the selected topic, yet it is only unpredictable at first sight. It may seem that the lack of justification and common sense behind Russia’s claims against Ukraine at the ECtHR is evident. However, the sources selected for the review in this subtopic offer insight into the motive of Russia’s claims, as well as their possible outcomes. Both studies were published in 2022, but Ingelevič-Citak’s research focuses on the ECtHR, whereas Huang’s study deals with the Hague Service Convention. Nevertheless, both pieces of research are important due to analyzing the question of Russia’s declarations against Ukraine under international human rights law.
When researching Russia’s human rights violations in Ukraine, it is interesting to study the opposing point, or, rather, not a point but a claim that Russia tries to make in the ECtHR. Russia’s complaint against Ukraine in 2021 raised questions about the possible motives of such allegations, which are substantially analyzed by Ingelevič-Citak. Although the author admits that Russia’s position is puzzling, further analysis allows ending up with several suggestions on why Moscow leaders decided to address the ECtHR. These are concerned Ukraine’s complaints against Russia, a massive propaganda increases in Russia, and the desire of Russia to win favor in public. The attempts of Russia to distract the public from its violent acts in Ukraine by pretending to be not the offender but the victim are also mentioned by Giuffré, which further justifies the severity of the issue. Overall, Ingelevič-Citak’s arguments are mostly based on assumptions, but this does not make the source less credible as, indeed, no one can explain the motives behind Russia’s complaints against Ukraine.
Finally, a study focused on conflicting declarations on Crimea was selected for the current review as it sheds light on the dilemma of the peninsular, which is an autonomous republic of Ukraine but has been under Russia’s occupation since 2014. The so-called Namibia Exception is frequently brought about when considering the conflicting declarations on Crimea. According to this exception, even if the state’s administration is not recognized due to its violation of international law, the people living on that territory should not be deprived of any benefits of international cooperation. Russia has resorted to this issue to make its actions look less barbaric, but the international law community seems not to have accepted these claims and, thus, has not yet come to a resolution on this issue. This source, despite not focusing directly on the ECHR or the ECtHR, explains Russia’s intentions to make claims against Ukraine in international courts, although without success.
Summary and Formulation of Research Question
The review of the literature has allowed for the singling out of several important subtopics in the selected research topic. Namely, the sources chosen for the review are grouped by the focus of their investigation into such areas as ECtHR’s functions, protection of the right to life under the ECtHR, application of the ECHR to the victims of Russia’s invasion in Ukraine, and conflicting declarations of Russia against Ukraine. The research question that arises from the reviewed studies is, ‘How can the effectiveness of the HCHR and the HCtHR in the protection of the right to life of the victims of the Russia-Ukraine war be increased?’
Bibliography
Etinski R, ‘Victims of International Armed Conflicts Should Be Protected by the European Court of Human Rights’ (2022) 18(1) Noua Revistă de Drepturile Omului 37.
Giuffré M, ‘A Functional-Impact Model of Jurisdiction: Extraterritoriality before of the European Court of Human Rights’ (2021) 82 Questions of International Law 53.
Huang J, ‘Conflicting Declarations Under the Hague Service Convention Amid the Russo-Ukrainian War: Dilemmas and Preliminary Solutions’ (2022) 116(4) American Journal of International Law 752.
Ingelevič-Citak M, ‘Russia Against Ukraine Before the European Court of Human Rights. The Empire Strikes Back?’ (2022) 51 Polish Political Science Yearbook 7.
Mykhailichenko T and others, ‘Protection of the Right to Health During the Period of Armed Conflict: The Experience of Ukraine’ (2022) 4-2(17) Access to Justice in Eastern Europe 66.
Nia AA, Nadalizadeh F and Kouhestani AS, ‘Genocide and Its Consequences from the Perspective of International Law (A Case Study of the Russia-Ukraine War)’ (2022) 6(8) Journal of Positive School Psychology 610.
Trykhlib K and Lemak V, ‘Autonomous Interpretation by the European Court of Human Rights and Margin of Appreciation’ (2022) 22(1) International and Comparative Law Review 135.
Wallace S and Malory C, ‘Applying the European Convention on Human Rights to the Conflict in Ukraine’ (2018) 4(3) Russian Law Journal 8.
Wallace S, The Application of the European Convention on Human Rights to Military Operations (Cambridge University Press 2019).
— — ‘Derogations from the European Convention on Human Rights – The Case for Reform’ (2020) 20(4) Human Rights Law Review 769.