What does the Resolution of the UN General Assembly on Furtherance of Remedy and Reparation for Aggression against Ukraine mean for Ukraine

  • 15.11.2022

On November 14 the UN General Assembly passed the Resolution on the Furtherance of Remedy and Reparation for Aggression against Ukraine.

In the political sense, approval of this Resolution for the process of paying reparations to Ukraine cannot be overestimated.

From the point of international law, this decision, however, is declarative and is not legally binding. That is why it will not incur any mandatory steps related to reparation or automatic establishment of any institutional mechanisms. But this Resolution of the General Assembly as of November 14 is very important, in particular, in the context of specific key issues we are going to consider below.

Acknowledgement of the responsibility of the RF for its aggression against Ukraine and of the commitment to repair the damages

However, adoption of this Resolution creates legal grounds for the establishment of the mechanisms for bringing the RF to account and payment of reparations for the damages inflicted on Ukraine.

Of importance in this regard are provisions of the Preamble to the Resolution, where the General Assembly has expressed its grave concern “at the loss of life, civilian displacement, destruction of infrastructure and natural resources, loss of public and private property, and economic calamity caused by the Russian Federation’s aggression against Ukraine”.

Further on, in paragraph 1 of the Resolution, the General Assembly directly “recognizes that the Russian Federation must be held to account for any violations of international law in or against Ukraine, including its aggression in violation of the Charter of the United Nations Organization”.

The above provisions, in fact:

- recognizes the fact of RF’s aggression against Ukraine;

- states the fact of infliction of damages to persons and property as the result of this aggression.

Of importance is the reference in the Preamble to Art. 2 of the Charter of the United Nations, in particular, to an obligation to refrain in the international practice from the threat or use of force against the territorial integrity or political independence of any State. Establishment of the fact of violation of this principle is important in the context of reparations for Ukraine since it constitutes one more legal ground for the states managing the assets to take further action to seize frozen Russian assets and transfer them to Ukraine.

For instance, amendments to the Canadian Special Economic Measures Act presuppose that a grave breach of international peace and security may well be the actual grounds for seizing the assets on which Canada has imposed sanctions (including Russian ones). Recognition of the fact of breach of the provisions of the UN Charter on peace and security at the level of the Resolution of the UN GA may become an additional confirmation of the legitimacy of decisions that may possibly be passed on these grounds in Canada as well as stimulate inclusion of similar provisions into the legislation of other states managing RF’s frozen assets.

Support in the development of an international mechanisms for payment of reparations to Ukraine

Of key importance for ensuring reparation of damages for Ukraine are paragraphs 3-4 of the Resolution. Thus, in p. 3 the General Assembly recognizes "the need for the establishment, in cooperation with Ukraine, of an international mechanism for reparation for damage, loss and injury, and arising from the internationally wrongful acts of the Russian Federation in or against Ukraine”.

This provision does not establish any reparation mechanism per se, does not stipulate its format (commission as in case of Iraq or Kuwait, tribunal, etc.) and does not mean any automatic transfer of Russian assets to Ukraine. But it paves the way for further steps in this direction by establishing their legitimacy, and these could be as follows:

  • adoption of further decisions by the UN General Assembly on authorization of the UN Secretary General to sign international treaties on the establishment of such mechanism under the Organization’s auspices;
  • conclusion of a multilateral international treaty involving Ukraine, states controlling RF’s assets abroad and other interested states and international organizations on the establishment of such mechanism with reference to the UN GA Resolution;
  • reference to this provision within the framework of bilateral agreements of Ukraine with the states controlling frozen Russian assets in the process of their transfer after seizure for reparation of military damages.

Probably, in the course of negotiations other formats of implementation of this provision and specific institutional forms of the development of the international mechanism of reparation for Ukraine will be discussed.

Recommendation on the creation of the Registry of Damages Caused by the Russian Aggression

Of importance also is the recommendation of the UN General Assembly on the creation of the “international registry of damages” that would contain complete information on the “requirements” for reparation of the damages inflicted to Ukraine, to legal entities and natural persons as the result of internationally illegal actions of the Russian Federation and the evidence supporting the claims.

In one of the previous publications by the Dnistrianskyi Centre in the topic, we stressed the need for creating such registry. The recommendation to create such registry at the UN level, on the one hand, is a great step forward in helping Ukraine, while, on the other hand, presupposes major responsibility for Ukraine.

Creation of such registry will provide an opportunity to national and, prospectively, international judicial institutions to use the evidence base available in it for considering the issues of responsibility of the Russian Federation (and, possibly, specific individuals) for breach of international law, for establishing the fact of damage infliction and determining the size of damages. This will, undoubtedly, accelerate and facilitate the process of damage reimbursement.

Along with that, in spite of the wording of the Resolution saying that such registry can be created by the “Member States in cooperation with Ukraine”, there is no doubt that it is Ukraine that will face the major responsibility. It is Ukraine that should organize the work related to the creation and filling out of the registry, and “field work” related to collection of information concerning victims and the evidence on the damages inflicted to them.

Creation of such registry would require as quick and coordinated actions as possible. As in the previous abovementioned publication, we still think that criminal proceedings should be one of the keyways to record and document damages caused by the Russian aggression. It is criminal proceedings that enable to generate reliable evidence that could further be verified in any proceedings.

 

What comes next?

This Resolution of the UN General Assembly is an important step towards ensuring reparation of damages caused by the Russian aggression in Ukraine to Ukraine and Ukrainians as well as foreigners. This is the recognition of Ukraine’s right to obtain the reparation and Russia’s obligation to ensure it.

Definitely, all further international and national decisions on the creation of the international reparation mechanism for Ukraine will be passed with due account and with reference to this Resolution. By its nature, however, this document does not and cannot contain any legally binding norms for its development and implementation.

Special attention should be paid to the creation of the Registry. To implement this project, it is necessary to develop the respective regulatory base that would create opportunities for centralized creation and filling out of such registry by the national authorities.

The above registry should contain the data on 1) subject entities (state authorities, legal entities, and individuals) affected by the violations caused by the invasion of the Russian Federation, 2) the nature of the inflicted damages, and 3) respective evidence. 

No doubt, the above registry should be maintained in compliance with the personal data protection and information protection standards.

It should also be borne in mind that this Resolution does not give any answers to a number of other questions, in particular:

  • the period of aggression for which the RF should pay reparations: after February 24, 2022 or starting with 2014 (since the occupation of Crimea);
  • the problem of jurisdictional immunities and the possibility for deviating from it;
  • specific parametres of the mechanism for payment of reparations to Ukraine, etc.

However, with the approval of the Resolution Ukraine got an important lever in its diplomatic negotiations on the creation of such mechanism and seizure of Russian assets and can make the most efficient use of it.

Аuthors: Ivan Horodyskyy, lawyer, Director of Dnistrianskyi Centre; Markiyan Bem, lawyer, partner of Nazar Kulchytskyi and Partners Law Firm, expert of Dnistrianskyi Centre

 

The material has been prepared with the support of the International Renaissance Foundation within the project "#Compensation4UA/Reparation of War Damages to Ukraine. Development of the Models of Legal and Institutional Reparations Mechanism".