On May 16, 2023, the Council of Europe established, by Resolution CM/Res(2023)3, the Enlarged Partial Agreement of the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine (Register, or RODU). This is a momentous development in the quest to create an international claims commission for Ukraine and is responsive to calls from the U.N. General Assembly (UNGA) for the establishment of an international reparation mechanism for damages contained in Resolution A/RES/ES-11/5 of November 15, 2022.

Tremendous progress has been made in establishing how the Register will work, its functions and legal structure, and how it will fit within the larger framework of the international reparation mechanism for damages in Ukraine. We discuss each of those in turn. 

The Functions of the Register

Resolution CM/Res(2023)3 was adopted by the Committee of Ministers of the Council of Europe (CoE) at their meeting in Reykjavik and established as an Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine (the Agreement). Thirty-seven CoE members agreed on adoption of the agreement, alongside representatives of the European Union, Canada, Japan and the United States. The Register is initially established for a period of three years and will then be reviewed.

The mandate of the Register is to 

serve as a record, in documentary form, of evidence and claims information on damage, loss or injury caused to all natural and legal persons concerned, as well as the State of Ukraine (including its regional and local authorities, State-owned or controlled entities), caused on or after 24 February 2022 in the territory of Ukraine within its internationally recognised borders, extending to its territorial waters, by Russian Federation’s internationally wrongful acts in or against Ukraine.

RODU is distinctive, but not unprecedented, and follows the example of the U.N. Register of Damage (UNRoD) 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, and now sits in Vienna.  

Unlike UNRoD, however, the Agreement provides that the Register is only the first component of a future international compensation mechanism, which may include a claims commission, to be established in the future by separate agreement in co-operation with Ukraine. Thus, the plan under the Agreement is to create a two-step process, the first one – RODU — to collect and register claims, the second – to be created — to adjudicate and provide compensation for meritorious claims filed under RODU.

The Statute of RODU provides that the Register will “receive and process information on claims of damages and evidence, categorize, classify and organize” the claims and assess them and determine their eligibility for inclusion in the Register and for a future examination and adjudication. RODU does not have adjudicative functions on the claims and will not have the ability to allocate payments or compensation or determine responsibility. 

RODU will be based in The Hague and will have satellite offices in Ukraine. It will have juridical personality under the national law of the Netherlands and of Ukraine. RODU will also have capacity to contract and will be regulated under the General Agreement on Privileges and Immunities of the Council of Europe. 

All member and observer States of COE as well as other States and international organizations are invited to become members of the Enlarged Partial Agreement in accordance with the RODU Statute annexed to the Resolution, which provides (Article 4) that States that have voted in favor of UNGA Res. A/RES/ES-11/5 may join the Register as Participant or Associate Members by notification to the Secretary General of the COE. Other States may be authorized to join the Register taking into account “the position of the Government of Ukraine.”

The Structure of the Register

RODU is composed of three separate organs: the Conference of the Parties (COP – regulated in Article 5); the Board of the Register (the Board – regulated in Article 6) and the Executive Director (ED – regulated in Article 7), each with distinctive functions.

The COP is composed by one representative appointed by each Participant. COP has a supervisory function and has the overall responsibility for the fulfillment of RODU’s mandate, approves the rules and regulations proposed by the Board to govern the work of the Register, appoints Board members and designates the ED upon proposal of Ukraine. COP also adopts the budget. Decisions are taken by two thirds majority of votes by Participants, though procedural decisions can be taken by majority of votes cast. Associate members can participate in meetings and have the right to make oral and written statements, but do not have the right to vote. Budgetary contributions are mandatory for Participants and voluntary for Associate members.

COP met for the first time on June 27 and elected Sandy Moss (UK) as Chair, and Tanjia Gonggrijp (The Netherlands) and Emil Ryffer (Czech Republic) as Vice-Chairs for a period of three years.

The Board will be composed of at least seven members (the number can be increased by the COP if needed) “taking into account their integrity, experience and multidisciplinary expertise necessary for the efficient functioning of the Register, notably as regards international law, war damages and claims, accounting, and loss assessment, as well as gender and global geographical balance.” Members of the board are appointed for a term of three years renewable once. Members sit in their individual capacity and are to be independent and impartial in the exercise of their functions and available to carry out their duties effectively. In terms of appointments of members, one of the members shall be appointed by the COP among candidates nominated by Ukraine, the others will be appointed by the COP among candidates nominated by Participants and Associate Members.

The Board has the responsibility for the exercise of the functions of RODU. It proposes and implements the rules and regulation for the work of Register in particular “as regards the determination of the categories of claims, the procedures for the receiving, processing and recording of claims, the format of the claim forms and the requirements for evidence with respect to each category of claims, that shall be approved by the Conference.” The Board determines the date from which the Register is open for submission of claims and has the ultimate authority to determine the eligibility of claims to be recorded in the Register, based on the recommendation of the Executive Director. The Board must meet at least quarterly, and it is to be expected that the Board will be very busy as soon as it appointed drafting the rules and regulations and determining the process to be followed for claims.

The day-to-day running of RODU will be in the hands of the ED who represents the Register and acts on its behalf. The ED and its Secretariat provides administrative, substantive and technical support to the work of the COP and Board and is responsible for forwarding claims to the Board for approval, liaise with the relevant national and international bodies on issues related to the work of the Register and the process of collection of claims and evidence, and liaise with the government of The Netherlands and Ukraine. The ED is designated by the COP upon proposal by Ukraine and appointed by the Secretary General of the Council of Europe, taking into account the integrity, experience and multi-disciplinary expertise necessary for this post. At its first meeting, the COP designated Markiyan Kliuchkovsky of Ukraine as its first ED.

Next Steps

It is quite remarkable that less than six months after the creation of a Register was endorsed by UNGA and less than a year since the idea of a claims commission for Ukraine began to be discussed, RODU is now a reality, now being established in The Hague.

The designation of the ED and forthcoming appointment of the members of the Board will mean that RODU will be able to start its work expeditiously. Once fully functioning, RODU will have to expeditiously address key issues, including claims categories, filing requirements, and claims processing. 

RODU is the first component of the two step-mechanism to effectuate reparation, to be established by further negotiation. The statute provides that the work of RODU will be transferred to a compensation mechanism, with the assistance of RODU and its ED. The form and structure of the Compensation Mechanism is still to be negotiated, but it is important to note that the Statute provides for it to be a separate international mechanism which could include a claims commission and a compensation fund.

In sum, the establishment of RODU is an extraordinary achievement and could be the first step of a new kind of claims commission that responds to the unique situation that prompted its creation.

IMAGE: Members of the General Assembly vote on a draft resolution during a special session in the General Assembly Hall at United Nations Headquarters on November 14, 2022 in New York City. The UNGA continued its Eleventh Emergency Special Session to hold a vote on a draft resolution brought by the Permanent Representative of Ukraine to the United Nations Sergiy Kyslytsya, calling for the UNGA to create an “international register” to document claims of damage, loss, or injury to Ukrainians caused by Russia. (Photo by Michael M. Santiago/Getty Images)