Thank you. It’s a pleasure to be in Kyiv as a guest of the Center for Russian Studies and Diplomatic Academy of Ukraine. I’m conscious that we are going into our discussion time so I shall restrict myself to 10 minutes.
The usual disclaimers apply: I am speaking on my own behalf, not for the University of Cambridge or any other institution.
The organizers of today’s workshop have invited me to address some issues of the legal response in the West to aggression against Ukraine. I would like to say a brief word about sanctions, which constitute an important part of the response, and then to make some observations about judicial and arbitral proceedings, which also have some relevance to Ukraine’s situation.
As you know a number of Western countries have implemented sanctions and taken other measures in response to Russia’s breaches of international law in the Crimean and Donbass areas of Ukraine. Because those sanctions and other measures have been in response to international law breaches, and because they are intended to have effect both under the national legislation of the countries that have adopted them and under international law, the rules of international law are an appropriate starting point for analysis.
A sanction is a measure that would otherwise be either unfriendly in itself, or even unlawful, but international law recognizes, in its rules of state responsibility, that a state may take certain countermeasures in response to unlawful acts by another state. For example, under the WTO system, countries are under obligations regarding trade with one another; sanctions that restrict trade might appear to contradict those trade-related obligations. Sanctions do not however attract international legal responsibility to the state adopting them, when that state has adopted them in response to a breach of international law by the state that the sanctions target, and when the sancations are otherwise in accordance with general international law. The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts 2001, Articles 49 to 54, addressing countermeasures, are relevant in this regard.
So, consistent with international law, the United States, Japan, the European Union and a number of others have adopted sanctions to restrict trade and, also, to restrict the movement, financial activities, etc. of certain Russian individuals; and also, mutatis mutandis, of certain Russian enterprises and Russian governmental organizations. Like other countries that have been placed under sanctions, Russia claims that the sanctions themselves are unlawful. The answer to such a complaint is that the sanctions will end if the state targeted by the sanctions ends its unlawful conduct. The sanctions are a lawful response to the unlawful conduct concerned. The sanctions remain lawful so long as the unlawful conduct to which they respond continues.
And there is no doubt that, in Russia’s case, the unlawful conduct continues. In Crimea, the situation is self-evident: the unlawful annexation continues, with no signs that Russia plans to reverse it. Violations of international law continue in Donbas as well. The losses in Donbass have been severe. The OSCE reports that they have escalated to 10 thousand deaths since the beginning of the Russian intervention. I noticed that yesterday that the U.S. Department of State Spokesperson observed that the month of May, just concluded, was the bloodiest month of the year 2018 in Donbass, there having been in that month some 10 military deaths and 9 or more other casualties. And yet at this time President Putin asserts that Russia is observing the letter of the law under the Minsk Accords. It is surprising that perfect observance of the Minsk Accords would coincide with the highest casualties of the year. Direct evidence of serious violations of the accords, such as Ukraine presented in its pleadings at the International Court of Justice last year (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation)) further undermines the credibility of Russia’s claim of perfect observance.
This situation has not gone unnoticed in the West. In the United States in the last year or so, new sanctions have been put in place in connection, inter alia, with Russia’s violations of international law in Ukraine. Congress passed, and President Trump signed into law on August 2, 2017, the Countering America’s Adversaries Through Sanctions Act (CAATSA). Subsequent regulatory acts and executive orders have implemented CAATSA in respect of a list of Russian individuals and organizations involved in violations of international law in Ukraine. CAATSA is a significant illustration of how the United States has stayed the course and even tightened sanctions during the last year and half in response to Russia’s actions in Ukraine. The new U.S. Administration under President Trump has taken further steps since January 2017 as well on the side of aid and military assistance to Ukraine. The 2018 Defense Appropriations Act for the first time opens the door to U.S. sales of defensive weapon to Ukraine. This is a step that had not been taken under the Obama Administration. After the immediate aftermath of the annexation of Crimea there had been material aid, but not in the form of weapons. Now, under the 2018 Defense Appropriations Act, Javelin anti-tank missiles, to give an important example, are eligible for sale to Ukraine. The tightening of sanctions on Russian individuals and organisations, together with the loosening of restrictions on military aid to Ukraine, reflects a continuing recognition in the United States that breaches of international law of a serious gravity are involved.
The international response to unlawful conduct in Ukraine has also taken the form of suits in courts and before arbitral institutions. As was just observed by Andriy Shevchenko, the response in courts in various countries and arbitration tribunals is an important part of the international response to events in Ukraine, and particularly the Western response. As other have observed, including in the discussion here today, there are jurisdictional limits, when it comes to international courts and tribunals. State-to-state jurisdiction is consent-based jurisdiction, and, so, where consent is lacking, jurisdiction is lacking. This has constrained Ukraine’s legal strategies, as is evident in the Provisional Measures Order of the ICJ of April 19, 2017 in the Ukraine v. Russian Federation case. The response of courts and tribunals has been restricted by each court’s own jurisdictional instrument.
In the four or five minutes before we move on to the group discussion, I’d like to talk about three other decisions, each adopted in a very different procedural setting, one which relates directly to Ukrainian interests, and two which might not appear at first to be relevant, but which do, when we look a little more deeply, in fact, carry lessons for Ukraine. We’ll start with maybe the least obvious case, and then we’ll move toward the more obvious.
In the Far East, the Philippines in January 2013 instituted proceedings against China under Annex VII of the UN Convention on the Law of the Sea 1982. The proceedings concerned China’s conduct in parts of the South China Sea that are located outside any possible lawful claims by China to maritime jurisdiction. China refused to participate in the Annex VII proceedings. And the Philippines prevailed on almost every one of its claims. As a matter of the legal rules, the Philippines roundly prevailed. The difficulty is that China, having refused to participate properly in the proceedings, went on to mount a rather tenacious attack against the proceedings from the sidelines. There have been seminars, white papers, articles in academic journals, books, and so forth. And lots of them. For proceedings that China says were illegitimate or non-existent, China has talked a great deal about them, and has (it would appear) spent a lot of money paying for others to talk about them too. The goal has been to ‘educate’ audiences around the world in China’s particular view of the South China Sea and to seek support for China’s rejection of the Philippines v China proceedings. It’s interesting in this connection to think about Professor’s Yoshiko remarks about education. Professor Yoshiko, in my view, is correct, when he says that it is important to educate people when a matter such as this is in dispute. China certainly has taken that idea to heart: it pays to educate. As Ukraine seeks to educate public opinion about its case against Russia, Ukraine has a conspicuous advantage that China lacks: and that is that, on the merits, Ukraine has a very strong case. So a lesson to draw from the Philippines’ experience with China is that it helps to communicate about your case, at least after the proceedings have closed, outside of court.
A second state-to-state case that I would like to consider is the arbitration between Croatia and Slovenia. The final award in this case was adopted last year. A number of matters were addressed in the proceedings, but I’d like to focus on one aspect, which has particular saliency for Ukraine. A small bay, Piran Bay, had been treated by the former Yugoslavia, before that state broke up, as internal waters. This meant that a closing line could be drawn at the mouth of the bay, and that closing line would mark the starting point for purposes of measuring the territorial sea of the state. In the dispute, Croatia asserted that this line is no longer effective. Slovenia argued that it is. The final award affirmed Slovenia’s position. Why does this matter to Ukraine? It seems like a technical point of some obscurity. But it matters very much. The award in Croatia/Slovenia matters, because it is yet another affirmation that boundaries that have been settled before independence survive independence. As you know all too well, the Kremlin’s legal experts sometimes call into question internal Soviet legal acts by which Ukraine’s sovereignty was established over Crimea. This is to contradict the principle of uti possidetis juris, under which a state emerging to independence retains as its international boundaries the old internal boundaries of the larger state of which it formerly had been part. The Croatia/Slovenia Award presents an a fortiori case, because, there, certain doubts existed, first, about the internal Yugoslav acts that had addressed the issue of the closing line to the bay; and, second, certain questions were raised about the manner in which the modern law of the sea deals with bays that constitute the internal waters of more than one state. No such complexities or doubts were involved with Crimea in Ukraine. No one doubted that, as a matter of the law of the USSR, Crimea was part of Ukraine. So, that law was good at the time, and the boundaries that it established have remained good since the time of Ukraine’s independence. And there is no controversy about the meaning of a recognised international land boundary between two states (there is no analogue here to Croatia’s arguments about juridical bays). In any event, regardless of the position internally under the law of the USSR or the status of bays, the Russian Federation repeatedly affirmed after Ukraine’s independence that Ukraine’s Soviet-era boundaries remain in place as they were. The relevant point from Croatia/Slovenia is simply this: boundaries, which were settled before independence, continue after independence; and this is an accepted principle of international law.
Finally, to turn to a case which directly concerns Ukraine’s Crimean area, there’s the case of the Scythian gold. You will recall that certain artefacts from museums located in Crimea were on loan in western Europe at the time of Russia’s annexation in 2014. Conscious of our time-limits today, I am constrained to give only a simplified overview of the case. In the result, the Netherlands courts have ruled that the gold is to be given back to Ukraine. Now, an interesting and subtle point is contained in the Netherlands judgment, and that is this: the judgment does not say, as a final matter, where the gold artefacts are to go. What it says, is, perhaps, even more helpful to Ukraine. It says that it’s up to Ukrainian courts to decide the ultimate disposition of the gold, because it is the courts of Ukraine that have jurisdiction over Crimea. I would submit that, in a similar dispute involving the eastern oblasts, a court would say the same. In other words, the matter of Crimea, the matter of Donbass, are in Ukraine’s hands, and so it is for Ukraine’s parliament, Ukraine’s judicial organs, Ukraine’s administrative organs, to make the decisions in respect of these territories. This is a valuable affirmation of Ukraine’s sovereignty in respect of these territories.
Before yielding the floor, I would like to congratulate our chairman for his appointment, mentioned earlier today, to the new Anti-Corruption Commission. Looking at the big picture, Ukraine’s on-going efforts to improve its own courts and public integrity go a long way to building support for Ukraine abroad. I’ve touched on some aspects of the Western response, including sanctions, and some international and national judicial decisions. Efforts like these, including especially in Ukraine itself, are an indispensable part of building an effective response overall.
Thank you very much for your time.
*Information about the author:
Dr. Tom Grant – Senior Research Fellow, Wolfson College, Cambridge University, Great Britain
The article is based on the address at the International Conference " Violation by Russia of International Law: Consequences for the World"