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Home Posts tagged "Ukraine"

The Kerch Strait Incident: Law of the Sea or Law of Naval Warfare?

Published on December 3, 2018        Author: 
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On Sunday 25 November 2018 Russian coast guard patrol boats, including the Don and the 630-ton Izumrud, first intercepted and later fired on three Ukrainian naval ships near the entrance to the Kerch Strait. Two Ukrainian sailors were injured, the Ukrainian ships seized and the crews arrested. The attack has been roundly condemned in the United States and around the world.

The Russian ships intercepted two Ukrainian Gyurza-M-class artillery boats, Berdyansk and Nikopol and a tugboat, Yany Kapu, as they sailed toward the Ukrainian port of Mariupol. Russian forces seized the vessels and arrested 24 crew members. The Don twice rammed the tugboat and the Russian vessels opened fire on the two smaller Ukrainian warships. The incident occurred in the territorial sea along the approaches to the Kerch Strait, which is bordered in the east by Russia and in the west by Russian-occupied Ukrainian Crimea. The Russian government stated that its forces fired only after the Ukrainian ships violated articles 19 and 21 of the United Nations Convention on the Law of the Sea (UNCLOS) concerning innocent passage in the territorial sea.

Exploring the legal circumstances of the incident requires selection between peacetime rules of the law of the sea and the law of naval warfare, which applies to international armed conflicts. This post concludes that the actual incident on the water is part of a continuing aggression by Russia against Ukraine, in violation of the UN Charter. While unlawful as a matter of the jus ad bellum, the incident would be a lawful in bello use of force by Russia in accordance with the law of naval warfare, notwithstanding Russia’s unlawful invasion of Crimea in 2014 or subsequent unlawful treatment of the Ukrainian sailors as common criminals rather than prisoners of war. In this case the law of naval warfare is lex specialis and supplants mutatis mutandis the peacetime rules of the international law of the sea for Russia and the Ukraine.

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Un-caging the Bear? A Case Study in Cyber Opinio Juris and Unintended Consequences

Published on October 24, 2018        Author:  and
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On October 4, the United Kingdom’s National Cyber Security Centre (NCSC), a division of the GCHQ, issued a news release attributing multiple cyber campaigns to Russia’s military intelligence service, the GRU. They were, according to the NCSC, designed to ‘undermine [the] international sporting institution WADA [World Anti-Doping Agency], disrupt transport systems in Ukraine, destabilise democracies and target businesses’.

The release was notable in two regards. As the campaigns were conducted by the GRU, an organ of the Russian government, Russia is legally responsible under the law of State responsibility for any violations of international law that may have occurred. Second, the release stated that the operations were ‘conducted in flagrant violation of international law’. Indeed, Foreign Secretary Jeremy Hunt, whom the release quoted, observed, ‘[t]his pattern of behaviour demonstrates their desire to operate without regard to international law or established norms and to do so with a feeling of impunity and without consequences’. 

Unfortunately, neither the NCSC nor the Foreign Secretary delineated those rules of international law that Russia allegedly violated or otherwise undermined. In this post, we attempt to tease loose the legal significance of the operations by measuring them against the recently enunciated UK positions on international law in the cyber context. Attorney General Jeremy Wright set forth these positions in a 23 May Chatham House speech. We first highlight the UK approach to the key international law prohibitions that are relevant vis-à-vis the Russian operations. Second, we assess the operations themselves against the UK position on these legal rules. Finally, we conclude by making the point that legal policy decisions with respect to cyberspace may prove a double-edged sword. Compelling reasons may exist for adopting particular positions regarding international law norms in cyberspace, but seldom are those positions cost-free. In particular, we suggest that the United Kingdom’s rejection of a rule requiring respect for the sovereignty of other States eliminates its most defensible basis for arguing that the Russian cyber campaigns undermined international law. Other States should bear this in mind before following suit.

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Ukrainian Eurobonds and Russia’s Compliance with International Law: Matters Suitable for Summary Judgment in the English Courts?

Published on October 9, 2018        Author: 
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In mid-September the Court of Appeal of England and Wales handed down its judgment in Ukraine v The Law Debenture Trust Corporation P.L.C. (‘Ukraine v Law Debenture’), in which it decided Ukraine’s appeal against an order for summary judgment for the payment by Ukraine of just over USD 3 billion. The application for summary judgment followed Ukraine’s decision to stop making payments under notes it issued in 2013, which are held exclusively by Russia. Law Debenture Trust Corporation plc (‘Law Debenture’), a trustee acting at the direction of Russia, made the application on the basis of the trust deed by which the notes were constituted, which is governed by English law and which empowers the Russian Ministry of Finance to direct Law Debenture to take enforcement proceedings against Ukraine. The domestic nature of the claim notwithstanding, Ukraine argued, inter alia, that Russia violated international law and that this provided grounds to refuse payment under the notes. It is on the Court of Appeal’s approach to these arguments that this post focuses.

Ukraine’s arguments and international law

It is in relation to two of Ukraine’s arguments – a defence of duress; and entitlement to refuse payment on the basis that it was taking a countermeasure against Russia – that Russia’s compliance with international law was called into question. The significance of Russia’s compliance with international law to the latter argument is clear. The relevance of international law to the former argument resulted from Ukraine’s claim that the issuance of notes ‘was procured by unlawful and illegitimate threats made, and pressure exerted, by Russia, such as to vitiate the consent of Ukraine…’ (Ukraine v Law Debenture para 17). More specifically, Ukraine alleged that Russia made threats which violated, inter alia, the prohibition on the threat of force and relied also on the imposition of and threat of allegedly unlawful restrictive trade measures as further evidence of duress (ibid para 166).

According to Blair J, neither the defence of duress nor the countermeasure-based argument could be considered on their merits, since the foreign act of state doctrine renders them both non-justiciable. ‘Ukraine’s case to the contrary has no real prospect of success’ (see here, paras 295, 308 and 365). While the Court of Appeal also dismissed Ukraine’s countermeasure-based argument, it did so for a different reason: the absence of a domestic legal basis which permits or requires an English court to ‘examin[e] it or pronounc[e] upon [its] merits’ (ibid para 189). In relation to the defence of duress, however, which has a domestic legal basis and to which, in the court’s view, Russia’s compliance with international law is relevant, the court held Ukraine to have ‘a good arguable case’ that the foreign act of state doctrine is inapplicable (Ukraine v Law Debenture, para 181). Read the rest of this entry…

 
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Can Intergovernmental Commerce in Human Organs be Legal?

Published on August 23, 2018        Author:  and
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States prefer when their national legislations conform with international law. However, assessing conformity can sometimes be complicated. One may think of a situation where national legislation mandates doing something the state has internationally undertaken not to do, and concluding treaties to serve as the international legal basis for doing so. Should such legislation be regarded as compliant with international law? Can such treaties really remove the prohibition? Such a situation is here exemplified by Ukraine’s new act on organ transplantation (available only in Ukrainian). Although not yet applicable, the act poses a number of difficult questions in relation to both substance and theory.

As to the substance, trafficking in human organs, as well as any other form of human body, commodification is universally condemned on ethical grounds, and prohibited under international law. Where such acts are committed by individuals or entities, the law is relatively clear on responsibility. This clarity dissipates once the possibility of intergovernmental procurement is considered. Hence, as to the theory, a question arises as to whether a state violates international law where it permits the purchase and sale of human organs through its authorised agents in accordance with treaties concluded to that effect. To answer this question, this post will highlight the relevant provisions of Ukraine’s recent legislation, which seem to contravene international standards, and analyse the normative nature of these standards.

Ukraine’s New Transplantation Act Read the rest of this entry…

 
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The Netherlands and Australia Attribute the Downing of MH17 to Russia

Published on May 25, 2018        Author: 
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Yesterday the international Joint Investigating Team (JIT)  published its conclusion that the missile which destroyed the MH17 airliner over eastern Ukraine was fired by a Russian military unit, the 53rd Antiaircraft Missile Brigade. Here’s a summary of the evidence on which the conclusion was based:

Using satellite imagery and a photograph posted on social media, the JIT notes that Buk systems were located in a parking lot on the base of the 53rd brigade in Kursk. Using social-media videos, photographs published online, and geolocation techniques, the investigation concludes that six Buk systems were part of a larger military convoy that left the base on June 23, 2014.

Investigators then reconstructed the route, with the last available images of the convoy coming on June 25, 2014, about 25 kilometers from the Ukrainian border. The convoy includes a Buk missile launcher beginning with the number 3 — indicating it was from the 3rd battalion of the 53rd brigade. Bellingcat, using the same videos, previously assessed that the missile launcher in question was number 332. This is the system the JIT says was used to shoot down MH17.

The Buk launcher that shot down MH17 appeared in Ukraine in several photographs and videos on July 17 — the day of the tragedy — and the following day, according to investigators. Comparing images of that Buk system from the convoy originating from the Kursk base and those taken in Ukraine reveals seven “fingerprints” demonstrating that they show the same missile launcher, the JIT says. These identical “fingerprints” include a center-of-gravity marking, the same partially obscured number beginning with the numeral 3, and a wheel with no spokes in the same spot.

Today the Dutch and Australian governments formally attributed the missile strike to Russia, invoking its responsibility for an internationally wrongful act:

On the basis of the JIT’s conclusions, the Netherlands and Australia are now convinced that Russia is responsible for the deployment of the Buk installation that was used to down MH17. The government is now taking the next step by formally holding Russia accountable.’

State responsibility comes into play when states fail to uphold the provisions of international law. A state can then be held responsible for breaching one or more of those provisions. This is the legal avenue that the Netherlands and Australia have now chosen to pursue. Both countries hold Russia responsible for its part in the downing of flight MH17.

Holding a state responsible is a complex legal process, and there are several ways to do this. The Netherlands and Australia today asked Russia to enter into talks aimed at finding a solution that would do justice to the tremendous suffering and damage caused by the downing of MH17. A possible next step is to present the case to an international court or organisation for their judgment.

Obviously, regardless of the formal invocation of state responsibility, the Russian government is not going to suddenly change its story and admit that its armed forces shot down the MH17, whether acting ultra vires or not. When it comes to Russia’s domestic audience, the JIT’s findings will be easily discredited by the Kremlin’s propaganda machine – but we’ll see how they play out in any  international litigation.

 
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Crimea Investment Disputes: are jurisdictional hurdles being overcome too easily?

Published on May 9, 2018        Author: 
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In February-March 2014, Crimea experienced what is here neutrally referred to as a ‘change of effective sovereign’ (as conceded by Ukraine itself). Subsequent events have given rise to at least nine investment claims by Ukrainian nationals against Russia in connection with their investments in Crimea made prior to the ‘change of effective sovereign’. Substantively, all cases pivot on alleged violations of the expropriation and FET (fair & equitable treatment) clauses of the 1998 Russia-Ukraine BIT. Before getting there, however, a series of jurisdictional hurdles need to be overcome. Firstly, whether the scope of the BIT covers also de facto (as opposed to de jure) territory. Thus, whether under the BIT, Crimea may be understood as Russian territory. Secondly, the BIT’s temporal and personal ambit of application. That is to say, whether Ukrainian nationals and their businesses existing in Crimea prior to the ‘change of effective sovereign’ may qualify, respectively, as foreign Ukrainian investors and investments in Russia. It is doubtful that these questions which, are inevitably intertwined with the public international issue of the legality of the ‘change of sovereign’, can be satisfactorily answered through ‘effective interpretations’ and/or drawing analogies from human rights law. The scope and rationale of investment law differs from that of the latter; the promotion and protection of bilateral business is pursued for the benefit of economic growth, while the protection of fundamental rights and freedoms of persons is undertaken for the good of human kind.  In fact, it is reflected in the standard dispute settlement mechanism envisaged i.e. private ad hoc arbitration v standing international court.

Jurisdictional decisions in five proceedings have recently been rendered. To date, none of these have been made public. Nevertheless, important passages of their reasoning have been uncovered by trusted sources. These allow for a preliminary review of the tribunals’ assessment of the key legal issues involved. Read the rest of this entry…

 

Gravity of the Past: Polish-Ukrainian Memory War and Freedom of Speech

Published on February 22, 2018        Author: 
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There is a power to the words ‘I remember’: the power of an event long past, exerting itself upon the present […] When the words begin a flow of warmth or love, it is a positive, binding power, but it is the most divisive and negative one possible when they lead on to events of death and destruction…

Ilana R. Bet-El

Collective memory matters politically: it provides a nation with an identity and common myth of origin, legitimizing power by creating a desired image of the past. This explains why states are preoccupied with memory, prescribing by law what has to be remembered and what must be forgotten. Revanchism, ethnic cleansing and war are all results of memory. The clash of historical narratives sponsored by states can destroy interstate relations. This happened in the case of Poland and Ukraine; these States were involved in memory war because of the attempts, from both sides, to instrumentilise history and use it for nationalist and populist goals.

These two countries were the ‘bloodlands’ during the Second World War. Yet, they have different memories of controversial events of the twentieth century. Describing the differing memories of the Polish-Ukrainian conflict Timothy Snyder writes:

[…] for patriotic Ukrainians the Organization of Ukrainian Nationalists created a moment of Ukrainian sovereign action by declaring a Ukrainian state under Nazi occupation in 1941 and a lasting memory of national heroism by their doomed struggle, for Poles its UPA [the Ukrainian Insurgent Army. – A.Ch.] was the organization which cleansed Poles from Western Ukraine in 1943 and 1944. Ukrainian patriots […] are unwilling to accept that the UPA did commit mass race murder in 1943-4. Poles […] are apt to believe that the anti-Ukrainian military operations of 1944-7 were a direct result (and a just one) of the UPA’s earlier ethnic cleansing. Both views are substantially incorrect. The UPA did indeed brutally murder […] Polish civilians in 1943-3. But in 1944-7 the Polish communist regime acted to ‘resolve the Ukrainian question in Poland’, not only to liquidate the UPA […]. [C]leansing actions (the word used at the time) […] was carried out in the name of the Ukrainian nation against Poles and in the name of the Polish nation against Ukrainians.

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(Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine

Published on October 9, 2017        Author: 
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In an increasing number of cases, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has been dealing with the question of the application of the European Convention on Human Rights (‘ECHR’, ‘Convention’) on territories which are outside the control of the state to which they belong. Such lack of control is either because of the occupation by a foreign state or because of the control by a separatist movement, as a rule, established and/or existing with the aid of a foreign state. One of the issues that arises in this context is the (non-)recognition of the regime that exercises control over such territory (the de facto regime).

This blog post looks at the Court’s existing approaches to the (non-)recognition of de facto regimes. It then discusses the implication of this approach for cases involving Eastern Ukraine and Crimea that may come before the Court and require it to deal with the question of (non-)recognition.

Existing approaches

The issue of (non-)recognition becomes particularly relevant when the Court is called on to assess proceedings conducted by the courts of a de facto regime in the light of the Convention. The Court has dealt with the issue of (non-)recognition when deciding on the exhaustion of domestic remedies at the admissibility stage, and on claims relating to freedom from arbitrary detention and the right to a fair trial at the merits stage. Read the rest of this entry…

 

Twenty Years of the ECHR in Ukraine

Published on September 18, 2017        Author:  and
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Twenty years ago, in September 1997, the European Convention on Human Rights (ECHR) entered into force for Ukraine. By ratifying the Convention, Ukraine recognised the compulsory jurisdiction of the European Court of Human Rights (ECtHR). While Ukraine had been a party to a number of the international human rights instruments, including the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, long before the ECHR, joining the ECHR had a special significance. It symbolised a European choice of Ukraine, a final breakaway from the Soviet past, and (at least on paper) the acceptance of the European values of democracy and respect for human rights. Making the determination to join the Council of Europe (CoE) and its fundamental legal instruments, however, was easier than to maintain Ukraine’s international obligations in practice. In fact, there had been times when the CoE seriously considered to terminate the membership of Ukraine altogether (in 1999, for example, for the failure to abolish the death penalty).

This post will not cover all the intricacies of the complex (and at times turbulent) relationship between Ukraine and the CoE. We will start with a brief review of the statistics regarding the current situation, in particular the ECtHR case law concerning Ukraine. Then, we will focus on the reasons why Ukraine is still one of the laggard states in terms of the numbers of applications and violations to the ECtHR. Further, we will discuss Read the rest of this entry…

 
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Is Ukraine a “Stranger” to the EU? OPAL Case

Published on August 28, 2017        Author: 
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In their recent contribution to the Global Trust Working Paper Series, Professor Eyal Benvenisti and Dr. Sivan Shlomo Agon raise one conspicuous, though rarely asked, question within a broader topic of state sovereignty in a globalised world. They wonder how sovereign decision-making powers can be restrained in the face of interests of “strangers”, i.e. third countries, as well as natural and legal persons, to which the effects of national policies “radiate” without allowing them to hold the decision-makers politically accountable. The authors make the first proposition that:

“international courts can and in fact do play a role in promoting the duties of states towards strangers affected by their policies, thereby alleviating some of the democratic and accountability deficits associated with globalization” (p.2).

Their second proposition is that international courts have developed ways to account for the “interests of affected others from within and outside” their host systems. Both propositions are then tested against the ample practice of the WTO dispute settlement system.

The article echoes well in the universe of “global administrative law” (GAL), i.e. a normative paradigm promoted by Professor Benvenisti which introduces practices of accountability (transparency, good process, reasoned decision-making, and basic legality) in what would otherwise be a non-democratic process of global administration. (For early conceptualizations of GAL, see the EJIL’s symposium issue).

The article is also provocative as it resonates far beyond the ambit of the WTO law. The present note offers to look for the advanced propositions in a group of energy-related cases currently pending before the Court of Justice of the EU (CJEU).

Admittedly, international energy law is rarely scanned for general international law trends and patterns. This may be due to the highly technical complexity of the underlying field of study, combined with the traditional view of energy as a nation state prerogative (recall General Assembly resolution 1803 (XVII) of 14 December 1962 “Permanent sovereignty over natural resources”). Yet, the intensity of present-day energy cooperation, spurred by critical socio-economic and even geopolitical needs, has effectively isolated exclusively national areas of regulation (e.g., access to upstream energy resources) and produced a layer of new, inherently international rules of community building. Read the rest of this entry…

 
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