Ukraine and the Netherlands v. Russia: Taking Stock of the Latest Developments in the Case Law of the European Court of Human Rights on Extraterritorial Jurisdiction

Summary

ABSTRACT

On 25 January 2023, the European Court of Human Rights (ECtHR, Court) issued its admissibility decision in Ukraine and the Netherlands v. Russia . This inter-state case concerns events in the Donbass area of eastern Ukraine, which began in the spring of 2014, including the downing of flight MH17. It is a landmark decision for many reasons, including the Court's approach to extraterritorial jurisdiction . Indeed, the Court used this case as an opportunity to clarify its general principles regarding jurisdiction, and it is likely to become the leading case on extraterritorial jurisdiction for years to come. More specifically, when formulating the general principles on jurisdiction, in Ukraine and the Netherlands v. Russia, the Court takes into account recent developments in its case law. Accordingly, this contribution examines to what extent the admissibility decision in Ukraine and the Netherlands v. Russia succeeds in incorporating recent developments in the ECtHR's case law into a coherent framework on jurisdiction. It first briefly recalls the main trends in the ECtHR's case law, across landmark cases such as Banković and Al-Skeini, before examining recent relevant ECtHR case law on extraterritorial jurisdiction. The contribution then discusses in detail the Court's approach to jurisdiction in Ukraine and the Netherlands v Russia . It thus shows that Ukraine and the Netherlands v. Russia can be seen as an ‘update’ of the general principles in Al-Skeini. It also confirms that, overall, the Court's case law continues to move in the direction of a more expansive and granular understanding of jurisdiction.

INTRODUCTION

On 25 January 2023, the Grand Chamber of the European Court of Human Rights (ECtHR, or Court) issued its admissibility decision in the inter-state case of Ukraine and the Netherlands v. Russia . The case concerns events in the Donetsk and Luhansk regions, in the Donbass area of eastern Ukraine, which began in the spring of 2014, including the downing of flight MH17. This case is important for numerous reasons: the armed conflict at stake in this case remains ongoing, and has escalated since Russia's invasion of Ukraine in February 2022; it includes the high-profile issue of the downing of flight MH17;