17 Jan The UN General Assembly Resolution on Reparations for Aggression Against Ukraine: A Victory for the International Rule of Law?
[Rana Moustafa Essawy is an Assistant Professor of Public International Law at Alexandria University (Egypt).]
On the 14 November 2022, the UN General Assembly (GA) adopted draft resolution A/ES-11/L.6 on ‘Furtherance of Remedy and Reparation for Aggression against Ukraine’. This resolution
Recognizes … the need for the establishment, in cooperation with Ukraine, of an international mechanism for reparation for damage, loss or injury, and arising from the internationally wrongful acts of the Russian Federation in or against Ukraine;
Recommends the creation by Member States, in cooperation with Ukraine, of an international register of damage to serve as a record, in documentary form, of evidence and claims information on damage, loss or injury to all natural and legal persons concerned, as well as the State of Ukraine, caused by internationally wrongful acts of the Russian Federation in or against Ukraine, as well as to promote and coordinate evidence-gathering …
The resolution was adopted by 94 States in favour, 14 against and 73 abstentions. It has been applauded as an historic and important sign of accountability for grave violations of international law. On the other hand, it has been criticized as a reflection of double standards in the application of international law and denounced for being illegal and should thus be devoid of any legal implications (see here). This post seeks to address the legal issues raised regarding this resolution.
The Legality of the Resolution
A number of States have expressed their concern about the legality of the resolution (China, Russia, North Korea, Eritrea), arguing that the GA has acted ultra vires as it is not a judicial body and thus could not create an international mechanism that defines the internationally wrongful acts of a State and decides on the necessary reparations.
However, as rightly clarified by the States supporting it, the resolution does not per se create an international mechanism for reparations similar to the United Nations Compensation Commission established by the UN Security Council (UNSC) in 1991 to determine the reparations ensuing from Iraq’s illegal invasion of Kuwait. The GA resolution only ‘recognizes the need’ for the establishment of this mechanism, which can arguably be interpreted as an implicit call for States to establish this mechanism. The competence of the GA to adopt this recommendation is correctly based – as mentioned in the preamble of the draft resolution – on Article 14 of the UN Charter that explicitly empowers the Assembly to ‘recommend measures for the peaceful adjustment of any situation which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the Charter’. Therefore, the problem does not lie in the legality of the draft resolution but rather in its legal implications.
Legalizing the Illegal
As mentioned above, the GA resolution could arguably be interpreted as implicitly recommending that States establish an international mechanism for reparations for damage and loss resulting from Russia’s violations of international law. In other words, this resolution – as rightly highlighted by several States – endorses a mechanism that will be formed by States outside the framework of the UN. The question is here: Does the resolution in question legalize the illegality surrounding the mechanism to be formed by the States to address the consequences of Russia’s violations of international law?
The reason I describe the potential mechanism as illegal is that it is foreseeable – based on Russia’s allegations and other posts recently discussing compensation (e.g., here, here and here) – that the mechanism will provide reparations from Russia’s frozen assets. However, liquidating Russia’s frozen assets to pay them as reparations is considered illegal under international law because it violates Russia’s sovereign immunity and the immunity enjoyed by its assets.
Arguments have been advanced that liquidating Russia’s assets is justifiable as a countermeasure to induce Russia to comply with its obligations under international law, including its obligation to pay reparations for its aggression against Ukraine. This is argued to be in accordance with Article 54 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Indeed, the obligation in question which Russia has violated is an obligation owed to the international community as a whole, thus entitling non-injured States the right to invoke the responsibility of Russia (Article 48 of ARSIWA). Nevertheless, an in-depth analysis of Article 54 demonstrates that it does not serve as a legal basis for denying Russia’s sovereignty and liquidating its frozen assets as a countermeasure.
Article 54 of ARSIWA stipulates:
This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.
Clearly, this article, which speaks about the right of non-injured States to respond to violations of obligations owed to the international community as a whole, is conditioned upon the adoption of lawful measures, as opposed to countermeasures which are unlawful measures adopted by the injured State to induce the violating State to abide by its international obligations. Therefore, Article 54 does not constitute a legal basis for the right of non-injured States to take countermeasures (ILC Commentary on Article 54, p. 139, para.7)
Although the ILC stated that the right of non-injured States to take countermeasures is controversial and practice is embryonic (p. 129, para. 8), several authors contend that things have changed and that this right have become an integral part of customary international law (CIL) (see here, here, and here). Nevertheless, I respectfully disagree with the methodology adopted to proof the existence of this rule.
Proponents have only relied on the practice of States (mostly Western) without establishing an accompanying opinio juris. They depend on ‘a presumption of opinio juris’ arguably advanced by the ICJ (see here, fn. 49). However, this presumption opposes the accepted ILC ‘two-element’ approach in the formation and evidence of CIL. Furthermore, an arguable presumption of opinio juris is hardly applicable in the context of third-party countermeasures where practice –in the words of ILC member Mr. Opertti Badan– belongs to ‘an area in which the borderline between international law per se and foreign relations [is] fairly indistinct’ (p. 296, para. 46) –warranting an in-depth analysis of the opinio juris of States. Even if an opinio juris can arguably be presumed, still the requirement of a general practice is not satisfied. Proponents tend to ignore the different statements made by States in the Sixth Committee reflecting both state practice and opinio juris in opposition to the existence of a customary right of third-party countermeasures. Therefore, I believe that the right of non-injured States to adopt countermeasures does not form part of existing international law.
Even if one (arguably) assumes the existence of a customary right of third-party countermeasures, this does not lend legal justification to the establishment of a reparations mechanism funded from Russia’s frozen assets. Following the same methodology of the proponents of this right and given the residual character of ARSIWA (Article 55), one can argue that the non-reliance of States on the notion of countermeasures to justify breaches of immunity law reflects –as highlighted by Tom Ruys– an ‘opinio juris on the part of States that they perceive of immunity (and inviolability) rules as a closed system which does not lend itself to recourse to countermeasures’ (p. 707). In other words, obligations of State immunity are –under CIL– among those international obligations that cannot be affected by countermeasures. Therefore, establishing a mechanism for reparations funded from frozen Russian assets lacks a legal basis in international law.
Neither does the UN Compensation Commission for Iraq set a precedent for a right to deny sovereign immunity as a countermeasure. Indeed, this commission was originally designed to be funded from the export sales of Iraqi petroleum and petroleum products (see S/22559 (1991), para.16) , and – amid non-cooperation from Iraq – the UNSC adopted Resolution 778 (1991) that decided that States in which there are frozen Iraqi funds shall transfer those funds to an escrow account authorized by UNSC Resolutions 706 and 712. However, it does not set a precedent for the existence of a norm giving States the right to deny State and State-owned assets immunity. First, this commission was established by the UNSC, which has the power to impose obligations on States that contradict their existing international obligations and, according to Article 103 of the UN Charter, obligations ensuing from the UNSC shall prevail over their existing international obligations. Therefore, any liquidating of Iraqi frozen funds is not a reflection of an opinio juris on part of States that international law permits the denial of the immunity of States and their assets as a countermeasure. Furthermore, the ILC has emphasized in its commentary on Article 54 of ARSIWA that this article does not cover ‘institutional reactions in the framework of international organizations […] for example, where it occurs under the authority of Chapter VII of the UN Charter’ (p. 137). At any rate, it should be noted that only the United States loaned Iraqi assets to the UN Compensation Commission, while most States arguably refused or failed to make such transfers. It is reported that 58 out of the 62 States responding to the request by the UN Secretary General emphasized that they do not have any frozen Iraqi assets (see here).
Having shown that the potential mechanism to be created for reparations against Russia does not have a solid legal basis under international law, the question then is: Does the GA resolution legalize this illegality? The question of the legalizing effect of GA resolutions has long been debated (see here). Nevertheless, without addressing in depth the different arguments raised in that respect, the ambiguity surrounding the funding process of the reparations mechanism in the GA resolution drives one to claim that this resolution cannot be interpreted as calling upon States to act in violation of international law. It is an accepted principle of interpretation –according to the ICJ– that ‘a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it’ (The Right of Passage Case (1957), p. 142). Similarly applied in interpreting resolutions of international organizations, the Appeals Chamber of the International Criminal Tribunal for Former Yugoslavia in the Tadić case stated that
it must be presumed that the Security Council, where it did not explicitly or implicitly depart from general rules of international law, intended to remain within the confines of such rules.
Therefore, it cannot be argued that the GA resolution on reparations for aggression against Ukraine serves as a legal justification for any illegality surrounding the potential mechanism and its functioning, particularly that sovereign immunity derives from the principle of sovereign equality of States, a cardinal principle upon which the UN is founded (UN Charter, Article 2(1)).
Given the illegality of creating an international mechanism for reparations to Ukraine funded by Russia’s frozen assets, attempts to use the GA resolution to legalize this illegality comes at the expense of compounding the legitimacy deficit that has long surrounded the UN as a Western tool rather than depicting it as a champion for the international rule of law. Indeed, States should use all tools to bring Russia’s aggression to an end, yet this should be done without further eroding the international legal order.