Thursday, October 02, 2014


Ukraine

Explainer: Can Kyiv Take Russia To Court?

Even if the road is long and Moscow balks at every step, the process of publicly filing complaints can help tar Russia's image and add reasons for it to change its behavior.
Even if the road is long and Moscow balks at every step, the process of publicly filing complaints can help tar Russia's image and add reasons for it to change its behavior.
By Charles Recknagel
Ukraine says it wants to take Russia to international courts over the annexation of Crimea. But what does that mean and how much satisfaction can Ukraine hope for? Here are five things to consider.

What kind of international court can Ukraine appeal to?

Acting Ukrainian Foreign Minister Andriy Deshchytsya says Kyiv wants to take Russia to court for annexing Crimea.

Speaking in Brussels on April 1, he said: "We consider Crimea as integral part of Ukraine and we are planning to submit legal cases to the international courts against Russia and against Russian actions in Crimea. We believe that with the international support, we will be able to return Crimea to Ukraine."

He did not specify what international courts or tribunals Kyiv is considering. But the obvious choices would be two courts in The Hague.

One is the International Court of Justice (ICJ), which is the principal judicial organ of the United Nations. The other is the Permanent Court of Arbitration (PCA), the world's oldest institution for the arbitration and resolution of disputes involving states.

What kind of redress would Ukraine seek?

That, too, has been left unsaid. But Kyiv has plenty of cause for complaint. Not only did it lose territory through Russia's annexation of Crimea, it also lost a great deal of state property.

That state property includes everything from administrative buildings to the state railroad's rolling stock in Crimea. But most importantly, it includes the peninsula's offshore oil and natural-gas fields, which Kyiv had counted on developing to lessen its dependence upon Russian energy, and the Ukrainian naval fleet in Crimea.

Ukraine would now hope to challenge Russia in court to regain its lost territory and property and perhaps seek compensation.

What are Ukraine's prospects for success?

Ukraine's best prospects probably have to do with recovery of its naval ships.

Alex Oude Elferink, director of the Netherlands Institute for Law of the Sea at Utrecht University and a professor at the Jebsen Center of Law of the Sea at the University of Tromso in Norway, says Russia's taking them is a violation of customary international law.
"I think it is clear that these ships enjoy immunity and I cannot see any basis on which the Russian Federation could take over these ships."

"Warships and other governmental ships used for noncommercial purposes enjoy immunity in the territorial sea of another state and this is also the case for warships that are in port," he says. "So, I think it is clear that these ships enjoy immunity and I cannot see any basis on which the Russian Federation could take over these ships."

However, for Ukraine to take Russia to an international court requires multiple steps.

International civil courts for disputes between sovereign countries only have jurisdiction over cases where there has been a violation of a specific bilateral or multilateral treaty to which both states are signatories.

Additionally, unlike international criminal courts, both states must recognize the right of the international court to act as an arbiter in dispute over that treaty.

"The main principle is that states, being equal under international law, should both consent to a dispute settlement procedure, which can be arbitration or an international court or tribunal, so you indeed need consent of the two states," explains Eric De Brabendere, an expert on international law at the Leiden Law School in the Netherlands. "Ukraine obviously would consent to a dispute being settled by an international court or tribunal but it needs the consent of Russia, as well, which I think is unlikely to be given."

He notes that is very different from international criminal courts, which have the power to simply summon individuals for trial over breaches of international law.

Still, if Ukraine can prove Russia broke a relevant treaty in which Moscow has already given preconsent for arbitration of disputes, a court could go ahead with arbitration even without Russia's participation. The arbitration court would have no power to enforce its decision or punish Russia for ignoring, but Kyiv would gain a significant symbolic victory.

Is Russia likely to cooperate over any attempt to arbitrate disputes regarding Crimea?

No. In fact, Moscow already has done much to complicate the process of any court even establishing jurisdiction over the disputes.

Russia seized Crimea in a two-step process that makes it difficult to prove it has directly violated any treaties with Ukraine.

The first step saw a pro-Russian, secessionist government in Crimea declare independence and expropriate Ukrainian state property for itself. The second step involved the self-declared independent state conducting a referendum on joining the Russian Federation.

Kyiv says the secessionist leaders had no right to give the Black Sea peninsula to Russia but Moscow maintains the transfer process was legal.

De Brabendere says that puts any court addressing Russia's expropriation of Ukraine's assets in Crimea -- for example, its offshore oil and gas fields -- in a difficult position. "If there is expropriation, you can basically only assess the validity of the expropriation if you discuss whether or not the annexation was in conformity with international law or not," he adds.

Usually, the legal status of one state's annexation of another's territory is resolved by the UN Security Council. But Moscow vetoed a resolution on March 15 to condemn Russia's annexation of Crimea, while China abstained, leaving the question open.

The UN General Assembly resolution on March 27 declaring the Crimean referendum illegal does not have the weight of a Security Council resolution. The resolution passed with 100 states in favor, 11 against, and 58 abstaining,

Would taking Russia to court help isolate Moscow?

Throughout its conflict with Russia, Ukraine has sought to marshal support from international institutions and Western states to isolate Russia diplomatically and through sanctions. The goal is to pressure Moscow to stop its interference in Ukraine and negotiate an end to the crisis.

Taking Russia to an international court is part of that strategy. Even if the road is long and Moscow balks at every step, the process of publicly filing complaints can help tar Russia's image and add reasons for it to change its behavior.

States "have to deal with other states, so they have a real interest in being reliable and being perceived as reliable," explains Olivier Ribbelink of the T.M.C. Asser Institute, a legal think tank in The Hague. "When they don't keep their agreements, they become [seen] as less reliable and this will, for example, mean that all kinds of things that they want will become more expensive or that they have to insure things at a much higher price than before."

He notes that countries do not like to be dragged to court for the same reason they usually accept the arbitration decisions the courts hand down. They want to maintain a reputation of being a reliable diplomatic and business partner for other countries and know their long-term well-being depends upon it.

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