The content of this PACE Resolution in terms of damage compensation is a significant step forward in guaranteeing damage compensation to Ukraine and further actions in this direction.
Like the Resolution of the European Parliament, the PACE Resolution contains a reference to the Resolution of the UN General Assembly “Furtherance of Remedy and Reparation for Aggression against Ukraine,” which once again proves the previously predicted central role of this document for the entire international legal process of war damage compensation to Ukraine. In this context, the PACE supported the creation of an international compensation mechanism for Ukraine.
It is critical that the PACE, on behalf of the Council of Europe, in paragraph 19 of the Resolution, de facto recognized its readiness to take the lead in establishing and maintaining the functioning of that mechanism, stressing “the comparative advantage of the Council of Europe thanks to the experience gained by the European Court of Human Rights and the Committee of Ministers in assessing and ensuring claims of just satisfaction for serious human rights violations, and considered that the Organization should play a leading role in setting up and managing the future mechanism”[1].
To date, the specific parameters of the Council of Europe’s participation in setting up and managing such a mechanism have not been specified. But the very fact that the international organization shows such readiness, albeit in the form of documents, is primarily of political importance and is a significant step towards the creation of an international compensation mechanism for Ukraine.
Regarding the elements of this mechanism, the Resolution considers them as:
A multilateral international treaty “open” to all like-minded states, with the support of the UN, the Council of Europe, the European Union, and other international organizations” (Clause 19.1). Regarding the content of this agreement, it should regulate, among other things, the issue of “the funding of the compensation fund, the enforcement of compensation awards and how decisions by other international bodies and courts on reparation and compensation in connection with the Russian aggression such as judgments of the European Court of Human Rights could be enforced through such a mechanism” (clause 19.3).
The International Register of Damage, the creation of which is considered as a “first step” in the process of launching the compensation mechanism (clause 19.2).
The International Compensation Commission (the next step) as the body that will consider the compensation claims and the compensation fund (clause 19.3).
As for financing, unlike the European Parliament Resolution, the PACE did not raise the issue of working with Russian assets and the need to solve the problem of sovereign immunities against them.
The Resolution also calls on the European Union to “closely coordinate its efforts with the Council of Europe to ensure a comprehensive system of responsibility for the aggression of the Russian Federation against Ukraine, including… damage compensation.”
What’s next?
As in the case of Resolutions of the UN General Assembly and the European Parliament, the PACE Resolution is a political document in its nature which does not entail binding legal consequences. However, the fact that the international organization expressed its readiness not just to support but to lead the practical work on the creation and launch of the compensation mechanism is an extremely important step towards its implementation.
That Resolution, like the previous two, was Ukraine’s significant diplomatic victory in the strategy of ensuring damage compensation. The importance of those decisions of international organizations was also emphasized by international experts – members of the Working Group on the Creation of an International Mechanism for Damage Compensation to Ukraine, established in accordance with the Decree of the President of Ukraine in May last year. In the Position Paper published at the same time, they stressed that “Ukraine and its partners could work within the framework of existing international organizations to adopt resolutions that recognize Russia’s violations of international law and support the creation of the Commission [on Damage Compensation – the author’s note)].
The next step should be the development of a multilateral international treaty that would launch the process of creating a damage compensation mechanism for Ukraine. The PACE resolution does not directly say whether it can be developed and signed under the auspices of the Council of Europe. However, such a signature could add additional legitimacy to the future mechanism.
