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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.

Read the rest of this entry…

 
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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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Arbitration Agreement is no Waiver of State Immunity from Jurisdiction for the Purposes of Recognition and Enforcement – Comment on Commercial Court of Moscow’s decision in Tatneft v Ukraine

Published on July 17, 2017        Author: 
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In April 2017, the Russia-based PJSC Tatneft initiated against Ukraine the process of recognition and enforcement in Russia of an arbitral award issued in the PCA investment arbitration OAO Tatneft v Ukraine under the UNCITRAL Rules and the Russia-Ukraine BIT. This June, the Commercial Court for the City of Moscow (the court of first instance, hereinafter – “the Court” or “the Russian Court”) dismissed Tatneft’s recognition and enforcement application, inter alia, sustaining Ukraine’s plea of immunity from jurisdiction [see А40-67511/2017 (in Russian)]. This post comments on the part of the Court’s judgment concerning Ukraine’s immunity from jurisdiction.

The Positions of the Parties and the Judgment

Insofar as it is possible to ascertain the crux of the parties’ submissions from the text of the judgment, Ukraine raised two objections to jurisdiction. The first objection was based on Ukraine’s immunity from jurisdiction in the recognition and enforcement proceedings, and the second on the Russian courts’ lack of effective jurisdiction to try the claim due to the absence of Ukraine’s commercial assets in the territory of Russia. This note will concern itself only with the first of the two objections. Read the rest of this entry…

 
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The NotPetya Cyber Operation as a Case Study of International Law

Published on July 11, 2017        Author:  and
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The recent “NotPetya” cyber-operation illustrates the complexity of applying international law to factually ambiguous cyber scenarios. Manifestations of NotPetya began to surface on 27 June when a major Ukrainian bank reported a sustained operation against its network. The Ukrainian Minister of Infrastructure soon announced ‘an ongoing and massive attack everywhere’.  By the following day, NotPetya’s impact was global, affecting, inter alia, government agencies, shipping companies, power providers, and healthcare providers. However, there are no reports of NotPetya causing deaths or injuries.

Cybersecurity experts have concluded that despite being initially characterized as a ransomware attack similar to WannaCry and Petya, NotPetya was directed at specific systems with a purpose of ‘causing economic losses, sowing chaos, or perhaps testing attack capabilities or showing own power’. Additionally, most agree that Ukraine was the target of the operation, which bled over into other States. The key question, however, is the identity of the attacker. NATO Cooperative Cyber Defence Centre of Excellence experts have opined that ‘NotPetya was probably launched by a state actor or a non-state actor with support or approval from a state.’

Although the facts are less than definitively established, the EJIL: Talk! editors have asked us to analyse the incident on the assumption that it is factually and legally attributable to a State.  We begin with a peacetime international law survey and conclude with an international humanitarian law (IHL) analysis. Read the rest of this entry…

 

Ukraine vs. Russia in International Courts and Tribunals

Published on March 9, 2016        Author: 
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In early January 2016, Ukraine affirmed its intention to bring a claim against Russia before the ICJ under the International Convention for the Suppression of the Financing of Terrorism (‘Financing of Terrorism Convention’). Further announcements were made in late January and February 2016 as to both an additional claim in the ICJ under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and a claim under the United Nations Convention on the Law of the Sea (UNCLOS). This post provides a brief overview of pending and prospective cases originating from the conflict between Russia and Ukraine.

Cases pending before international court and tribunals

Ukraine is currently seeking to challenge Russia’s actions on its territory in the European Court of Human Rights and the International Criminal Court. Three inter-State cases initiated by Ukraine concerning Russia’s actions in Crimea and Eastern Ukraine are currently pending before the ECtHR (the first inter-State case by Ukraine against Russia was discussed here). In September 2015, Ukraine also lodged a Declaration under Article 12(3) of the Rome Statute of the International Criminal Court recognising its jurisdiction with respect to the acts committed on its territory since 20 February 2014. It is true that acceptance of the jurisdiction of the ICC by Ukraine may not necessarily lead to the prosecution of Russian citizens fighting in the Eastern Regions. It is, nonetheless, another avenue used by Ukraine to put the conflict between the two States before international judges.

Russia’s actions in Crimea and Eastern Ukraine have also resulted in individual cases brought against Russia at the international level under international human rights law and international foreign investment law. As of October 2015, more than 1,400 applications seemingly related to the events in Crimea or Eastern Ukraine, lodged against both Russia and Ukraine or against one of those States, are pending before the ECtHR.

Several cases were initiated before the PCA against Russia under UNCITRAL rules apparently concerning investments located in Crimea. One of these cases, for instance, concerned interference with property situated in Crimea. Incidentally, in reply to the commencement of the arbitral proceedings in this case, Russia sent a letter stating that it did not recognise the jurisdiction of the arbitral tribunal. Despite Russia’s request not to regard the letter as consent to participation in arbitral proceedings, Read the rest of this entry…

 

Ukraine Derogates from the ICCPR and the ECHR, Files Fourth Interstate Application against Russia

Published on October 5, 2015        Author: 
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I’ve somehow managed to miss this – and I don’t think it has been widely reported – but in June this year Ukraine formally derogated from the International Covenant on Civil and Political Rights and the European Convention on Human Rights. In late August it also filed a new interstate application before the European Court of Human Rights against Russia, and this is the really big one, dealing with events in Crimea and Eastern Ukraine after September 2014. A couple of days ago it was communicated by the Court to Russia for a response, as detailed in the Court’s press release. The press release also explains the current state of Ukraine/Russia related litigation; while one of the four interstate cases was discontinued, the three remaining cases come coupled with some 1,400 individual cases on various issues, against Russia, Ukraine, or both. Obviously this whole set of cases – together with those dealing with the downing of MH17, and future Ukraine/Russia cases to come – presents one of the most significant challenges that the Court has ever had to face on how the Convention should apply in armed conflict.

The press release also refers to Ukraine’s derogation from the ICCPR and the ECHR. The text of the detailed notice of derogation can be found here and here. In particular, Ukraine derogated (or at least attempted to derogate) from Articles 5, 6, 8 and 13 of the Convention, and the corresponding articles in the ICCPR. Much of the derogation notice, and the relevant Ukrainian legislation it refers to, deals with detention issues and other restrictions on personal liberty, such as the institution of curfews, as well as changes to judicial and prosecutorial procedures. The most important derogation seems to be the extension of detention without judicial authorization from 72 hours to 30 days, subject to decision of a prosecutor.

Two things struck me as particularly interesting – and particularly unhelpful – after reading the derogation notice.

Read the rest of this entry…

 
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The Jus ad Bellum and the Airstrikes in Yemen: Double Standards for Decamping Presidents?

Published on April 30, 2015        Author: 
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A democratically elected president has lost control of his country and fears for his safety. He flees and seeks refuge in a more powerful neighbouring State. He writes a letter as the legitimate President, inviting his host State to take military action against the insurgents who have forced him into exile. The host State does so. Will such a situation meet with condemnation or support from the international community? Does it depend on whether the President’s name is Yanukovych or Hadi, and the intervening State is Russia or Saudi Arabia?

Russia’s Sputnik news agency has been quick the draw the parallels between the Russian intervention in Ukraine in 2014 (the jus ad bellum aspects of which have previously been discussed on this blog, including by myself – see here, here and here) and the continuing Saudi-led intervention in Yemen in 2015, seeking to highlight the divergent reaction to two seemingly very similar situations to skewer alleged Western hypocrisy. In contrast, the US State Department’s spokesperson, Marie Harf, denied the parallels between the two cases when quizzed about the issue at a press briefing:

QUESTION: … People have been asking why is it that the president, the Yemeni president, who fled from his capital, remains legitimate in your eyes.

HARF: Well, I think —

QUESTION: Whereas, like another president who fled. (Laughter.) […]

. . .

HARF: It’s completely different.

QUESTION: My question is the same. The similarities between the two cases are striking.

HARF: In that there aren’t many? […]

QUESTION: There are a lot, I think, but anyways —

HARF:Okay. We can agree to disagree.

This blog post is a tentative exploration of the issues raised by a comparison of the two cases. Are there clear standards for identifying the government of a State, for the purpose of determining who can validly consent to military action on the State’s behalf, or are these standards malleable enough that powerful States can produce whatever legal outcome they want? Read the rest of this entry…

Filed under: Government, Use of Force