Author - Ivan Horodyskyy 

During the Summit of the Council of Europe held in Reykjavik on May 16-17, 2023, the establishment of the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine (hereinafter, "Register") was announced. This has become the most important achievement on the way to providing compensation for war losses to Ukraine so far.

Background

The Register of Damage is an important element of the mechanisms of compensation for losses in the international practice.  Last July, the experts of the Dnistrianskyi Center emphasized the need to create a uniform register that would contain the evidence of losses, including in the digital format.

Specific international recommendations for creating such a register were first expressed in the UN General Assembly Resolution "Furtherance of remedy and reparation for aggression against Ukraine" of November 14, 2022, which recommended "the creation of an international register of damage by Member States in cooperation with Ukraine."

Later on, the idea to create the Register was supported by the European Parliament, and PACE Resolution No. 2482 (2023) of January 26, 2023 has become a key document in this process. In that document, PACE actually declared the readiness of the Council of Europe to become an institutional platform for creating the Register and an international compensation mechanism for Ukraine as a whole and, particularly, the register of damage, and emphasized the importance of the experience of the Council of Europe, which could be used for the establishment and functioning of the register.

During the past six months, the establishment of the Register was declared by Ukraine's representatives as a priority task on the way to ensuring the compensation for losses, however, there was almost no information about the practical work in this area, which can be justified from the political point of view in light of the sensitivity of this issue. In fact, the consent of the Government of the Netherlands to provide a seat for the Register in The Hague has become the only information on this matter.

The content of the decision and the work format of the Register 

The Committee of Ministers of the Council of Europe adopted Resolution CM/Res(2023)3 establishing the Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine, with the Statue of the Register as an appendix thereto back on May 12, 2023 (hereinafter, "Resolution" and "Statute of the Register"). However, the President of the European Commission Ursula von der Leyen, announced the signature of the decision on the establishment of the Register at the Summit of the Council of Europe in Reykjavik as late as on May 15, 2023.

The Register was established as part of the Enlarged Partial Agreement (EPA). This mechanisms allows an individual group of Member States to more closely cooperate and implement joint efforts in the framework of the Council of Europe without the participation of all Member States. The application of this mechanisms allows avoiding this initiative to be blocked by certain Member States of the Council of Europe, on the one hand, and extending the support by involving third-party states, on the other hand.

This approach appeared to be justified, because six Member States, Azerbaijan, Armenia, Bosnia and Herzegowina, Hungary, Serbia and Turkey, immediately refused to sign the agreement on the establishment of the Register. On the other hand, the pool of participants already includes the European Union, Canada, Japan, and the USA. Moreover, Article 4 of the Statute of the Register assumes that the agreement may be further joined by other member or observer States of the European Union and the Council of Europe that have voted in favor of the UN GA Resolution of November 14, 2022, as well as by any other states, however, with the consent of other participants and "taking into particular account the position of the Government of Ukraine."

The mandate and the structure of the Register

According to the Resolution and Article 2.3 of the Statute, the Register shall be used to account for damage caused by the aggression of the Russian Federation, and to receive claims for compensation from:

1. Individuals

2. Legal entities

3. The State of Ukraine, including local self-government bodies and state enterprises.

It is assumed to cover damage caused by the internationally wrongful acts of the Russian Federation committed after February 24, 2022 within the internationally recognized borders of Ukraine.

The functions of the Register, according to Article 2, include:

- Receiving and processing information on claims of damage and evidence

- Processing these data and assessing their eligibility

- Co-operating with national and international partners for the purposes of co-ordination of gathering and processing of information about damage caused by the Russian aggression.

According to Article 3 of the Statute, the Register will have a seat in The Hague (the Netherlands) with its satellite office to be created in Ukraine. The Register is expected to function for three years with a possibility for extending its mandate for the next periods.

Organizationally, the Register will consist of four main elements:

- the Conference of Participants, which shall meet at least once a year and carry out the general management of the Register;

- the Board, which shall be composed of seven members, including one member delegated by Ukraine, meet at least once a quarter, and consider the eligibility of claims and their recording in the Register;

- the Executive Director who shall be appointed upon proposal of Ukraine and shall carry out the operational and administrative management of the Register;

- the Secretariat, which shall ensure the organizational work of the Register under the authority of the Executive Director.

The structure of the Register generally corresponds to the international practice, including the organizational structure of the Register for Palestine (UNROD).

Moreover, a number of other documents related to the functioning of the Register are to be developed and adopted, in particular, the Agreement between the Council of Europe and the Kingdom of the Netherlands on hosting the office of the Register in The Hague, the rules and procedures of the Conference of Participants, the rules and procedures of the Register etc. An analysis of the content of these documents will enable a deeper and more effective assessment of the key principles of its functioning.

Conclusions

A detailed analysis of the principles of functioning of the Register will take more time, and we will carry it out in our next publications. 

Anyway, the establishment of the Register is an extremely important step towards providing the compensation for war losses of Ukraine and the establishment of an international compensation mechanism for Ukraine. Both the Resolution and the Statute emphasize several times that it is only the first step on this way, and that further on, the Register shall become part of the compensation mechanism. It is also emphasized that the Register has no functions for awarding the compensation, but only serves for recording evidence and claims for compensation.

As far as it arises out of the Statute, victims of the Russian aggression (individuals and legal entities, local communities) will have a right to address to the Register directly.  It is an important step on the way towards an efficient enforcement of victims' rights. In addition, it makes sense to stipulate in the procedural documents of the Register and the national legislation of Ukraine the synchronization of the Register data with the State Register of Property Destroyed, Damaged and Lost as a Result of the Armed Aggression, which is to be created in accordance with Law No. 2923-IX of February 23, 2023, as well as other registers that may probably be created.

At first glance, the limitation of claims for damages to those caused on and after February 24, 2022 only is, perhaps, the main drawback of the suggested structure of the Register. This significantly limits the rights of people affected by the Russian in the period from February 23, 2014 and does not fully correspond to the position of Ukraine consistently standing for the duration of the Russian aggression since 2014.

From an organizational point of view, it would probably make sense to ensure a wider representation of Ukraine in the Board of the Register. On the other hand, this does not mean that Ukrainian citizens cannot be delegated by other member states of the Register, and the Statute allows for the possibility of changing the number of Board members.

However, the very date of establishment of the Register may go down in history as the moment when compensation for war losses caused by the Russian Federation has become unavoidable.

The publication was prepared with the support of the International Renaissance Foundation as the part of the project "#Compensation4UA/Compensation for war losses for Ukraine. Phase II: ensuring the effectiveness of mechanisms at the national and international level" project.