Not long ago in The Hague, Russia lost to the Netherlands in a case of unlawful seizure of the Dutch-flagged vessel Arctic Sunrise, which was being used by Greenpeace environmentalists. This is the second instance of the Russian Federation losing a case at an international court. Last year, the Permanent Court of Arbitration in The Hague ruled that Russia had breached the Energy Charter, effectively expropriating YUKOS’s assets, and thus obliged Russia to pay 50 billion dollars to the oil company.
As a reminder: the incident with the Arctic Sunrise took place in 2013, when environmental activists chained themselves to an oil rig, protesting against drilling for oil in the Arctic. Russia, in violation of the UN Law of the Sea Convention, detained not only the environmentalists, but also the entire crew and the vessel itself, which was sailing under the Dutch flag in international waters. “The Permanent Court of Arbitration, which is an UN organ and is based in The Hague, Netherlands, finds Russia guilty of breaching the UN Convention and obliges Russia to compensate the damages to the Dutch party,” reads a statement on the court’s official website. The document mentions that the tribunal was set up in compliance to the UN Convention in the matter of Russia’s seizure of the vessel Arctic Sunrise flying the Dutch flag, which was being used by Greenpeace environmental activists.
From the very start of the lawsuit Russia refused to take part in the arbitration, appoint its agents, or pay the requested deposits. Meanwhile, the UN statute allows to award decisions without the defendant’s consent. The claim was sustained by the court.
“The Tribunal found that the Netherlands is entitled to compensation (with interest) for material damage to the Arctic Sunrise, for material and non-material damage to the Arctic 30 [the company which owns the ship. – Ed.], and for the costs incurred by the Netherlands in connection with the issuance of a bank guarantee pursuant to the ITLOS Order,” reads the press release of the court. At the moment, the amount of the compensation is not disclosed.
Stephan de Spiegeleire, senior fellow at The Hague Centre for Strategic Studies, told to The Day that it is expected in the Netherlands that Russia will refuse to pay the compensation. At the same time, he emphasized that Russia’s veto on the setting up of an international tribunal at the UN Security Council to investigate the Malaysian flight MH17, downed in Donbas, only encourages the Netherlands’ effort to set up such a tribunal.
According to Spiegeleire, the report on the investigation of the downing of MH17 will be published in mid-October, and the criminal investigation will follow. “But the Netherlands will never allow this crime, and the culprits who shot down the flight, to go unpunished,” stressed he, adding that there exist several variants to set up such a tribunal, in particular, through the effort of five countries which proposed the draft for vote at the UN Security Council, namely, Australia, Belgium, Malaysia, the Netherlands, and Ukraine.
By the way, on Sunday night Ukraine’s Foreign Minister Pavlo Klimkin said on air of Channel Inter that Ukraine and the UN had agreed on how to circumvent Russia’s veto in the Security Council and set up the tribunal. According to him, it can be achieved via an agreement between the five countries, which are currently investigating the downing.
The Day asked Ukraine’s former authorized representative at the UN International Court, Ambassador Extraordinary and Plenipotentiary of Ukraine, Dr. Volodymyr VASYLENKO to comment another defeat of Russia at the International Court and its possible implications for chances to set up tribunals for investigation of Russia’s crimes against Ukraine in general, and of Russia’s involvement in downing MH17 in particular.
“IT IS IMPORTANT FOR US THAT RUSSIA HAS TWICE LOST A CASE AT INTERNATIONAL COURTS”
“Of course, five states can set up a tribunal and initiate the proceedings, but the same problem remains. Russia will not acknowledge the legitimacy of this tribunal and therefore will not cooperate with it. And when the tribunal draws its conclusions and brings out the verdict, the Russian Federation will not extradite the culprits to Ukraine, should such be named.
“As to the court’s decisions in the cases of YUKOS and the arrested Arctic Sunrise trawler, this is a horse of another color. The thing is that in our case we speak about setting up an International Criminal Tribunal to investigate a crime against humanity, which is envisaged by the norms of public international law. Therefore, we deal with application of the norms of public international law. The peculiarity of which is that no passed decision, or no treaty made without the participation of a subject of international law, is binding for this subject of international law.
“However, in the cases of YUKOS and the Arctic Sunrise, these relations are regulated by the norms of private international law, or in other words, by the norms of civil law. Moreover, the contracts concerning the relations between YUKOS and foreign firms, on the one hand, and the Russian state, on the other, contained a compromissory clause. It envisaged that in case of disputes concerning the interpretation of the contracts, or in case of breaching of the contracts by one of the parties, the case would be examined at the International Court of Arbitration. In other words, the Russian government had previously agreed to the settling of disputes by international arbitration.
“Surely, it is important for us that Russia has twice lost a case at international courts. Therefore, should the five states set up the tribunal, it will mean a serious step towards bringing the culprits to justice. The states which have set the tribunal will be cooperating among themselves and with other states. Besides passing the verdict, such a tribunal will be capable of issuing arrest warrants for individuals who will be found guilty. And then the Interpol will join in and demand the extradition of the criminals.”
Recently, Ukraine filed its fourth lawsuit with the European Court for Human Rights against the Russian Federation. Please comment on the steps our government takes toward bringing Russia to justice for the crimes committed on our territory, and for the annexation of Crimea.
“This is also one of the tools of calling Russia to account. I think this is a correct policy. The only thing is that this court will not accuse Russia as such of committing an act of aggression. It will sustain the claims in what concerns the unlawful deprivation and destruction of property of the citizens of Ukraine, legal persons of Ukraine in areas occupied by the aggressor state, whose government breached the European Convention of Human Rights (namely, respect for property).”
What tactics should be chosen for the setting up of the tribunal to investigate the downing of Malaysia’s Boeing? Is it necessary to wait for the UN General Assembly, slated for late September, and set up the tribunal there? Or start the process now, with joint effort of the five states?
“In my view, the tribunal must be set up on the basis of the UN General Assembly’s resolution. It will add weight to it. I have information that at last the President’s Administration charged the Ministry of Foreign Affairs of Ukraine with formal appeal to the International Criminal Court about determining the jurisdiction in the crimes committed in the course of Russia’s aggression against Ukraine. On February 4, the Verkhovna Rada passed a respective resolution.”
“If the International Criminal Court takes up this matter and initiates the proceedings, its own investigation, then in this framework the incident with the criminal downing of flight MH17 could also be investigated.
“As for the other options to set up the tribunal, the one with the UN General Assembly is the best. A similar example we see in Resolution No. 377, passed by the General Assembly in 1950. It works as follows: if the Security Council cannot pass a decision on a matter concerning prevention of violation of peace, threat to peace, stopping a threat to peace, or on measures to be taken against states which abuse force, then the UN Security Council may pass a decision on such a matter by two-thirds of votes.”
What tactics should Ukraine adopt, given that the Russian Federation will preside over the UN Security Council in September?
“Ukraine should continue the policy it has been carrying out from the very start: put forward demands to Russia as the aggressor state; show that the Russian Federation neglects its international commitments and must be held accountable under international law for its aggression against Ukraine. First of all, it means the vacation of the occupied territories, reparation of losses, and punishing the guilty. To this end, a special organ needs to be created in the country, which would be authorized (on the basis of legal processing of all the facts concerning the aggression and damages caused thereby) to draft a consolidated claim to Russia, as the aggressor state, and formally submit this claim to the Russian state, with the simultaneous dissemination of this document within the UN and other organizations, as their official document. This would be the first formal step necessary for bringing the aggressor to account.”
The Day’s FACT FILE
On July 17, 2014, airliner Boeing 777 of Malaysian Airlines on a flight MH17 from Amsterdam to Kuala Lumpur, was downed above the eastern territory of Ukraine occupied by Russia-backed separatists. All the 298 persons on board died. Some two-thirds were nationals of the Netherlands, and Ukraine handed the investigation over to that country.
