Ця стаття також доступна українською мовою тут.
On Monday, the United Nations General Assembly (UNGA) sitting in its 11th Emergency Session approved Res. L.6/2022 entitled “Furtherance of Remedy and Reparation for Aggression against Ukraine.” The resolution was co-sponsored by 56 member States and gathered a significant positive vote, with 94 votes in favor and 13 against (with 74 abstaining; for a transcript of the session see here).
The resolution is historic. It recognizes that Russia must be held accountable for its aggression against Ukraine and recommends the creation of a registry of damages. It also recognizes the need for Russia to make reparation for injury caused by its violations of international law.
Creating a Framework for Accountability with a Deadlocked Security Council
In its first 10 preambular paragraphs, the resolution sets the scene and outlines the basic tenets and legal principles that frame the situation in Ukraine. It reaffirms the paramount importance of the U.N. Charter in promoting the rule of law among nations. Citing Article 2 of the Charter, it recalls that all States have an obligation to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the U.N.’s purposes. It recalls that, under Article 33 of the Charter, member States must settle their international disputes by peaceful means, including by negotiation, inquiry, mediation, conciliation, arbitration, or judicial settlement.
The preamble also reiterates the power of the U.N. General Assembly (UNGA), under Article 14 of the Charter, to recommend measures for the peaceful adjustment of any situation that it deems likely to impair the general welfare or friendly relations among nations. Because the Security Council has been unable to act in this situation because of Russia’s veto power, the resolution’s reiteration of the UNGA’s power to take action is important and possibly signals the UNGA’s willingness to be more involved in complex situations that threaten peace and security. Indeed, the 11th Emergency Special Session of the UNGA under which the resolution was approved was called via Security Council Resolution 2623/2022 applying the Uniting for Peace resolution, whereby the Council refers to the UNGA a situation on which the Council’s permanent members are deadlocked.
After expressing grave concern at the loss of life, civilian displacement, destruction of infrastructure and natural resources and other damage caused by Russia’s aggression against Ukraine, the resolution recalls relevant resolutions and activities. These include Resolutions ES-11/1 of 2 March 2022 entitled “Aggression against Ukraine,” ES-11/4 of 12 October 2022 entitled “Territorial Integrity of Ukraine,” and Resolution 60/147 entitled “Basic Principles and Guidelines on the Right to Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” which calls for “adequate, effective and prompt reparations” to redress gross violations of international human rights law and serious violations of international humanitarian law.
Applying the Framework to Ukraine
In its second, operative part, the resolution applies this framework to the situation in Ukraine, underlining Russia’s responsibility under international law and calling for the creation of a registry of claims for damage, loss and injury.
It first calls on Russia to immediately cease its use of force against Ukraine and completely and unconditionally withdraw within its internationally recognized borders and territorial waters.
It then builds on recognition made in earlier UNGA resolutions that Russia violated international law in its aggression against Ukraine as well as other international legal obligations, including those arising from international humanitarian law, international human rights law. Applying the Articles on State Responsibility, it holds that Russia “must bear the legal consequences of all its internationally wrongful acts, including making reparation for the injury, including any damage, cause by such acts” (emphasis added). This clear articulation is essential. It states in no uncertain terms, as reflected in Articles 28 and 31 of the Articles on State Responsibility, that violations of international law have legal consequences, including the obligation to make full reparation for injury caused by an international wrongful act.
It follows, as the resolution recognizes, that there is a need to establish, in cooperation with Ukraine, “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.” Support for the creation of an international mechanism is fundamental and follows the practice established by the creation of other compensation mechanisms ensuing from the violation of international law, including the U.N. Compensation Commission, and, more specifically for violations of international humanitarian law, the Eritrea Ethiopia Claims Commission.
Innovations in Reparations
The way in which such reparations will be made is innovative. The resolution does not follow the path of the U.N. Compensation Commission, which is unavailable in this situation, as it was created by a resolution of the Security Council as a subsidiary organ of the United Nations. Instead, the resolution envisages the creation of a separate mechanism by members States in cooperation with Ukraine.
The UNGA resolution recommends the creation of a register for damages
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 Russian Federation’s internationally wrongful acts in or against Ukraine, as well as to promote and coordinate evidence gathering.
The register will not be part of the United Nations, but is to be created by member States. It will collect evidence and record damage caused by and claims arising from Russia’s violations of international law for both natural and legal persons, as well as Ukraine, with a view to providing reparations.
While the UNGA resolution recommends creation of a register for damages through a novel mechanism – agreement among member States – the use of such a register is not unprecedented. It follows the example of the U.N. Register of Damage that was created by the UNGA in application of the Advisory Opinion of the Construction of the Wall in the Occupied Palestinian Territory to record loss and damage.
Introducing the text (document A/ES-11/L.6), Ukraine’s Ambassador to the United Nations noted that the Soviet Union had demanded and received reparations 77 years ago as the moral right of a country that has suffered war and occupation. The resolution adopted on Monday follows that same path to ensure compensation for Ukraine’s recovery and ensure that damages are paid for all violations of international law by Russia. It is an important sign of accountability for a grave violation of international law.