1. We will only talk about lawsuits that lie in the plane of international public law, that is, suits of the "Ukraine" state against the "Russia" state. Claims of legal entities, business entities and private enterprises are the subject of a separate investigation.
2. The importance of opening a legal front is a confrontation between Russian articulations. This adds a significant and strong enough component to the military and diplomatic front. Of course, it started a little late, since claims against Russia were formulated only at the end of 2016 and early 2017, that is, almost three years after the occupation of the Crimea and the beginning of the war in the Donbas. This three-year pause, our Foreign Ministry argued for the need for bilateral consultations with Russia for the purpose of a so-called pre-trial settlement. International judicial bodies, in particular the International Court of Justice, do require such consultations, but three years are many. But on the whole, attempts to attract Russia to international legal responsibility are an absolute positive.
3. To date, the international judiciary has taken three cases Ukraine against Russia: 1) The International Court of Justice is considering an action for violation of the International Convention on the Elimination of All Forms of Racial Discrimination by Russia, 1965; 2) The International Court of Justice of the United Nations is considering a suit about Russia's violation of the International Convention for the Suppression of the Financing of Terrorism of 1999; 3) The International Tribunal for the Law of the Sea is considering an action for violation of the 1982 United Nations Convention on the Law of the Sea by Russia. At the same time, claims in the International Court of Justice regarding these conventions are considered in the package, as they were formulated by Ukraine simultaneously in one statement of claim.
4. According to Article 36 of the International Court of Justice, the Court takes into consideration issues of interpretation of the treaty, any matter of international law, the existence of a violation of an international obligation, and the nature of the amount of compensation for damages for breach of an international obligation. The competence of the International Tribunal for the Law of the Sea concerns a similar range of issues, but it only boils down to the application of the UN Convention on the Law of the Sea.
5. In the case of filing claims of one state against another, both in the International Court of Justice and the International Tribunal for the Law of the Sea, two principal conditions must be observed: 1) both states must be parties to the contract that is the subject of the claim; 2) both states must recognize the jurisdiction of the judicial body under the treaty that is the subject of the claim. These two conditions are sustained in the claims of Ukraine against Russia. By the way, states do not always recognize the jurisdiction of the UN Office on Certain International Treaties. For example, Ukraine, when acceding to the Convention on the Law of Treaties, 1969, made a reservation on the non-recognition of the competence of the UN Office in the application of this Convention. In the current situation, there were no formal grounds for international courts to refuse to accept lawsuits for consideration.
6. Speaking specifically for suits. Ukraine accuses Russia of violating Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 in connection with the situation in the occupied Crimea. Article 1 of the Convention, proposing the definition of "racial discrimination", emphasizes, in particular, the national and ethnic component, this gives grounds for direct accusations of Russia in violating the rights of both the Crimean Tatar and the Ukrainian population in the occupied peninsula. The position here on the Ukrainian side is quite strong, there are obvious facts. Therefore, I think we have a good case for this claim.
7. Referring to the lawsuit of Ukraine on Russia's violation of the International Convention for the Suppression of the Financing of Terrorism of 1999, the situation here is more complicated. Today, from a formal legal point of view, Ukraine has only one iron argument - a downed Malaysian Boeing. It is difficult to establish Russia's involvement in other criminal acts provided for in Article 2 of the Convention, although in the future there may be arguments in favor of the prosecution. Unfortunately, Ukraine for some reason actually suspended work aimed at the international legal recognition of the so-called DNR-LNR by terrorist groups.
8. Having conducted preliminary hearings on the case "Ukraine v. Russia", the International Court of Justice Committee adopted on April 19, 2017 the so-called " secured provisional measures for the claim of Ukraine under the Convention on the Elimination of All Forms of Racial Discrimination, whose purpose is not to allow the situation to deteriorate before the court makes a final decision. The International Court of Justice has ordered Russia to take a number of urgent measures. Such an intermediate decision of the International Courtcan already serve as a definite guideline in terms of a favorable final decision for Ukraine. At the same time, the court's refusal to accept similar secured measures under the Convention on Combating the Financing of Terrorism has a negative context for Ukraine.
9. This is the situation with the claims of Ukraine against Russia in the International Court of Justice. A few words about the International Court of Justice and the mechanisms of its work. The tradition is the membership of five judges from the permanent members of the UN Security Council. But, this is not the norm of international law, because there were exceptions. In our case, the Russian judge does not take part, he withdrew, such a rule. But he can get insider information. In Ukraine, there is no such possibility.
10. I would like to add one remark. Domestic media the International Court of Justice is often called the Hague court. But with the term "The Hague Justice" one must be cautious, since it applies only to the International Criminal Court and the International Tribunal for the former Yugoslavia. But it is only geographically located in The Hague.
11. With regard to Ukraine's claim that Russia violated the United Nations Convention on the Law of the Sea in 1982, the choice of jurisdiction of the International Tribunal for the Law of the Sea is quite obvious. The Tribunal actually complements the competence of the International Court of Justice UNSC in a specific branch of the law of the sea. It consists of 21 judges, who are elected for 9 years. There are several chambers for dispute resolution in specific sectors - shipping, fishing, protection of natural resources and the like. Also, in specific situations, the International Tribunal can create ad hoc arbitration bodies, which, in fact, was done at the suit of Ukraine against Russia.
12. May 12, 2017 at its special meeting, the International Tribunal created an Arbitration of five members to consider the claim of Ukraine against the Russian Federation. They are representatives of South Korea (chairman), Algeria, Great Britain, Mexico and Russia. As noted, the range of claims of Ukraine is broad and tied to the annexation of Russia by the Crimea. It is extraction of fossils on the continental shelf, obstruction of fishing, freedom of navigation, construction of a bridge in the Kerch Strait and the like. February 19, 2018 Ukraine filed in the Arbitration Memorandum outlining the relevant arguments. In principle, it would be possible to count on the favorable decision of the arbitration for Ukraine, but its composition leads to serious reflections. Therefore, I do not share the euphoria of our Foreign Minister Klimkin on the composition of arbitration. Quotation from Klimkin's Twitter: "Another gift for Ukrainian diplomacy: the arbitration of the UN Convention on the Law of the Sea in our case against Russia was fully formed. Justice is one step closer. "
13. Even if we assume that the decision of the International Court of Justice and the International Tribunal for the Law of the Sea on maritime law will be most favorable for Ukraine, the key question arises: will Russia implement these decisions? Based on examples of the relationship of modern Russia to international law, one can confidently forecast ignoring the Russian government of the decisions of these international judicial bodies. By the way, already now Russia does not fulfill the intermediate decision of the International Court of Justice of April 19, 2017 on the abolition of the ban on activities of the Mejlis of the Crimean Tatar people. Meanwhile, the decision of the International Court of Justice is mandatory for execution at any stage of the proceedings, including at the stage of preliminary hearings and the adoption of interim measures. Therefore, I do not understand why the Ukrainian authorities have not yet raised the issue of strengthening the sanctions regime for our international partners precisely for Russia's failure to implement an intermediate decision of the International Court of Justice. Unfortunately, given Russia's possession of the veto power in the UN Security Council, there are no other mechanisms for enforcing the decision of the the International Court of Justice. By the way, in the history of the United Nations, I found only one example of the failure to implement the decision of the International Court of Justice - the Nicaragua case against the United States in the early 1980s.
14. Finally, I would like to share, perhaps, the most important reasoning. All the claims that Ukraine has filed against Russia today with international judicial bodies only implicitly touch on the key issue - the resumption of the territorial integrity of our state. And this, unfortunately, is a problem that the Ukrainian authorities have not yet approached. After all, even in case of satisfying the claims of Ukraine under two conventions - the International Convention on the Elimination of All Forms of Racial Discrimination and the UN Convention on the Law of the Sea - and even (imagine impossible) the implementation by Russia of the decisions of international courts, the Crimea will not then return to Ukraine's sovereignty. We need to look for opportunities to hold Russia accountable for violating the UN Charter, aggression against a sovereign UN member state and violating the territorial integrity of Ukraine. Those suits that exist now, this is by and large shooting from cannon on sparrows. Over the four years the UN system has managed to adopt only one document, which although not legally binding, but directly concerns the issue of Ukraine's territorial integrity is UNGA Resolution 68/262 of March 27, 2014 "Territorial Integrity of Ukraine". This was a serious victory for Ukrainian diplomacy (100 states supported the resolution), but, unfortunately, the resolution did not lay down the mechanism of continuous consideration and it became a document of one-time action.
*Information about the author:
Dr. Olexandr Kupchyshyn – Ambassador, Deputy Minister for Foreign Affairs of Ukraine (2008-2010)
The article is based on the address at the International Conference «Russia's Violations of the International Law: Consequences for the World»