A duty to fight for your nationals? Ukraine and the future of reparation claims

In ongoing peace negotiations to end Russia’s unlawful invasion of Ukraine, Russia has demanded that Ukraine waive any reparation claims for the damages resulting from the invasion. This follows a broader set of Russian demands capable of impacting justice and accountability, particularly amnesties to “political prisoners” and – earlier – withdrawing declarations recognising the International Criminal Court’s jurisdiction. Concerns arise that peace negotiations may halt domestic accountability processes. Is it possible that, to secure long-awaited peace, Ukraine drops its reparation claims for the damage to and profound scarring of millions of human lives by the war?

Sky seems the limit for political bargaining. However, international law imposes guardrails to negotiating peace. Ukraine obviously has a sovereign right to claim reparations. But is it also possible that international law imposes upon a state a duty to fight for reparations to its nationals affected by atrocities perpetrated on its territory by another state – particularly concerning the prohibition of international crimes or fundamental human rights’ violations recognised as peremptory norms. If Ukraine abandoned its reparation claims – under coercion or voluntarily – would this comply with international law?

Claim responsibility or waive: up to a state?

From the general international law perspective, claiming reparations for injury suffered has traditionally been viewed as a sovereign prerogative. While the obligation to provide full reparation is an inevitable consequence of every internationally wrongful act (ARSIWA, Art. 31), a victim state has the discretion to either invoke another state’s responsibility or waive such claim (ARSIWA, Arts 42 and 45). It may thus ultimately seem a state’s prerogative to decide the fate of its own reparation claims.

The first caveat to such discretion is that waiver is only effective if validly given. The whole concept of a waiver renouncing a right or a claim is premised on its voluntariness (Tams 1036). Hence, any waiver procured through the threat or use of force will be invalidated (ARSIWA Cmt to Art. 45, ¶3; Tams 1036) and susceptible to future repudiation.

There is also a room to argue that waivers are impossible for claims arising from jus cogens violations (e.g., international crimes and certain human rights abuses) given the rules’ paramount importance to the international community as a whole (Tams 1042; Ferstman 962-963). Some argue, as Judge Cançado Trindade, that since the ultimate beneficiaries of such rules are human beings, states cannot waive reparation claims for “serious breaches of rights that are not theirs, rights that are inherent to the human person. Any purported waiver to this effect runs against the international ordre public, is in breach of jus cogens” (¶72). If this broader view is adopted, it would render any waiver of reparations for Russian conduct violating peremptory norms inadmissible from the perspective of state responsibility. However, according to others (Tams 1042), taking this expansive approach in situations of aggression would render peace negotiations impossible and has doubtful support in state practice. Perhaps more importantly, unless the right to reparations is itself considered peremptory (which is improbable), then denying this corollary right does not seem to directly violate jus cogens (Akande and Shah 834).

It is important, however, to distinguish between a state and an individual as right-holders affected by a violation. Even if a state can waive its own reparation claim for damage suffered to its nationals, it does not have grounds to waive the right of a harmed individual to pursue a claim. Regardless of the peremptory character of the breached norms, Ukraine’s waiver will not affect an individual right to seek redress. However, the reality remains that in relation to Russia’s conduct, the venue choices remain extremely limited due to lack of jurisdiction by adjudicative bodies coupled with lack of awareness and resources for many affected victims. The state’s ability to seek remedy therefore remains a primary concern in this case (and many potential similar ones).

Fighting for nationals: desirable or obligatory?

So, the nature of a responsible state’s conduct clearly limits the victim state’s ability to waive the right to reparations. But what of possible countervailing obligations belonging to the victim state? The law of diplomatic protection and international human rights law (‘IHRL’) may offer useful guidance – particularly where nationality and territoriality intersect.

Exercising diplomatic protection of nationals for an injury inflicted by another state’s wrongful act is primarily perceived as a state’s right, not a duty, leaving a state as arbiter to decide when to exercise it (DADP, Art. 2; DADP Cmt to Art. 2, ¶2). However, the International Law Commission’s (‘ILC’) work on diplomatic protection has broadened this view. As a recommended practice, the ILC concluded that states should consider exercising diplomatic protection in cases of “a significant injury”, particularly gross human rights violations (DADP, Art. 19; DADP Cmt to Art. 2, ¶3). Beyond, there are serious suggestions that international law recognises an obligation for a state “to consider the possibility of exercising diplomatic protection on behalf of a national who has suffered a significant injury abroad” (DADP Cmt to Art. 19, ¶3). Contrary to Special Rapporteur Dugard’s proposition (¶5), no persuasive reason explains why applying diplomatic protection “abroad” should not equally encompass a state’s territory occupied by a belligerent during an armed conflict.

IHRL lends further support, recognising the right to reparations as an inevitable component of fundamental rights’ enjoyment. Every right entails a positive obligation for states to proactively secure it by both creating conditions for its exercise and remedying its breach, whether committed by state agents or private persons (UNHRC General Comment 31, ¶8, 13-16). Every right entails a positive obligation for states to proactively create conditions for its exercise and remedy its breach, whether committed by state officials or private persons (UNHRC General Comment 31, ¶8, 13-16). The rights’ positive dimension is typically considered through an intrastate lens (e.g., a violation caused by or within a state, requiring this same state to punish wrongdoers, ensure effective investigation and/or compensate for harm suffered).

However, the concept of positive obligations extends beyond the intrastate level. For example, in the practice of the European Court of Human Rights (‘ECtHR’), even states deprived of authority over their territory “by a constraining de facto situation”, e.g., belligerent occupation, are not fully absolved of their responsibility towards human rights in their “jurisdiction”. They preserve a residual positive duty to “endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms” in their territory (Ilaşcu, ¶333). Such a residual obligation is not linked to any specific substantive right, but applies in respect to the entire Convention (Milanović 12; Larsen 86).

If a state preserves a residual positive duty to guarantee its nationals’ rights in occupied territories, it seems reasonable to argue it includes a constituent obligation to fight – with all legal and diplomatic means available – for reparations to its nationals that suffered grave human rights violations committed on its territory by another state. The existence of such duty can be seen as an integral and inevitable reading of the overarching obligation to secure, respect and ensure the fundamental rights of everyone within states’ jurisdictions (ECHR, Art. 1; ICCPR, Art. 2(1); ACHR, Art. 1(1)). A state is obliged to use “all available means” at its disposal to combat impunity since it causes additional suffering and anguish for victims, impedes the right to know the truth, and fosters their total defencelessness (Marcia Barbosa de Souza, ¶171; Molina et al., ¶162; Valenzuela Ávila, ¶142). While this conclusion was reached concerning mass domestic criminality, the same logic sensibly applies to the interstate level.

The nature of the individual right to obtain remedies in human rights’ treaties bolsters these considerations. Obligations on states to ensure that their legal system allows victims to access redress do not expressly limit themselves to intrastate situations (e.g., CAT (Art. 14(1)), ICPPED (Art. 24(4)), ICERD (Art. 6), ECHR (Art. 13), or ACHR (Art. 25(1))). Rather, these treaties arguably reflect a broad “obligation to take all necessary and effective measures to ensure that all victims […] obtain redress” (UNCAT General Comment 3, ¶27). The existence of a duty to ensure that victims can exercise the right to remedy, which features no intrinsic limitation on the violation’s source, sensibly incorporates the duty to fight for reparations for another state’s gross violations towards one’s own nationals.

This reading does not come without criticism. The duty to remedy is usually associated with a state’s own wrongdoing. Therefore, a state cannot be obliged to ensure reparations for conduct committed by another state. A state whose nationals suffered is simply an external observer to a tragic situation, deprived of any meaningful control or leverage, whereby the obligation to remedy primarily rests with a violator vis-à-vis victims. Imposing a duty to secure reparations arguably only adds to IHRL proliferation demanding the unreasonable – or even impossible – from states.

However, positive duties impose obligations of conduct, not result. They necessarily must fairly balance states’ diverse capacities and priorities and individuals’ interests, without imposing an impossible or disproportionate burden (Ilaşcu, ¶332). Lacking effective capacity to ensure reparations from another state does not mean that a state cannot be reasonably obliged to endeavour to secure the rights of those under its jurisdiction. An analogy can be drawn with the duty of collective action to bring to an end any serious breach of jus cogens: while there is an obligation to take certain action, its exact nature will always be context-dependent (Palestinian Territory Advisory Opinion, ¶279).

Limitations to any duty to secure reparations may arise concerning state immunity. There is debate whether removal of immunities for jus cogens violations can be premised on the view that such acts by nature cannot be jure imperii (i.e., this categorisation arguably does not relate to legality – illegal acts can be sovereign acts) or that upholding immunity gives rise itself to jus cogens violations (i.e., this would arguably require the right to reparation to be peremptory) (Germany v. Italy ¶60, 95). But it is less debatable that, as immunities are jurisdictional rules, any subsequent treaty or customary rule explicitly granting jurisdiction to bring action against a state or its officials may override such immunities to abide by the basic principles of lex specialis and lex posterior (Akande and Shah 841-844, 849, 852). For example the Geneva Conventions’ conferral of universal jurisdiction for grave breaches must displace broader rules of immunity (or else this rule granting jurisdiction would be meaningless).

Conclusion

The space for a state’s ability to waive reparations is receding, perhaps to the point of requiring a duty to persist in obtaining them in specific cases. Waivers are invalid where procured by use of force, but arguably also where they conflict with peremptory norms.

The law of diplomatic protection arguably imposes an obligation to exercise protection towards one’s own nationals who suffer serious injury. Under IHRL, states have a positive duty to continue upholding the enjoyment of rights of those on their territory even if it remains out of their control due to, e.g., occupation. This is supported by major human rights treaties enshrining duties for states to ensure victims have a right to remedy regardless of who the responsible state is. Even if a little chimeric, perhaps now is when an outline appears of a duty to endeavour in securing reparations for international crimes and certain fundamental human rights’ violations committed to a state’s nationals on its territory by another state. It would empower nationals to demand that their state fight for their right to reparations – failure to do so may then incur state responsibility.

Certainly, important limitations arise in this duty’s contours and procedural application. Which specific international crimes and fundamental rights are covered? Do legitimate arguments remain for immunities to frustrate effective ability to exercise this duty?

But to what Russia might consider its rightful demand to protect sovereign assets, Ukraine may respond that it could legally never consent to waiving reparation claims as it owes a duty to its people.