C Explanatory memorandum by Mr Davor
Ivo Stier, rapporteur for opinion
1 Introduction
1. I would like to congratulate
Mr Basha for his report, which provides an excellent analysis of
the issue of compensation for the damages caused by the Russian
Federation’s aggression against Ukraine and the role that the Council
of Europe should play in this context. His report proposes that
the Council of Europe proceeds towards the establishment of an international
compensation mechanism, including an international trust fund and
an international claims commission, and that member and non-member
States use the frozen Russian State assets for this purpose. This
is the next logical step following the creation in 2023 of the Register
of Damage under the auspices of the Council of Europe. The arguments
used in the report for supporting the seizure and transfer of such
assets, notably based on the doctrine of collective countermeasures
under international law, are legally convincing. I will examine
these arguments in more depth in my report on “Legal and human rights
aspects of the Russian Federation’s aggression against Ukraine”,
but I believe that the Parliamentary Assembly should already explicitly
support at this stage the solution proposed by Mr Basha.
2. I would like to propose several amendments to the draft resolution
and draft recommendation, with a view to strengthening them and
covering some additional issues.
2 Explanatory notes
2.1 Amendment A (to
the draft resolution)
3. This amendment aims to make
an explicit call to Council of Europe member States which have not
yet done so (six in total) to join the Register of Damage. It also
calls on other eligible non-member States, that is to say States
that voted in favour of the United Nations General Assembly Resolution
A/RES/ES-11/5 of 14 November 2022 “Furtherance of remedy and reparation
for aggression against Ukraine”, to do the same and join the enlarged
partial agreement (as participants or associate members).
2.2 Amendment B (to
the draft resolution)
4. This amendment is intended
to cover natural and legal persons as possible claimants to the
future international claims commission, in line with what is already
provided for in the Register of Damage (article 1.1 of the Register’s
Statute). This was also the case for previous international claims
commissions established following an armed conflict or invasion
(for instance the United Nations Compensation Commission competent to
process claims and pay compensation for loss and damage suffered
as a result of Iraq’s invasion of Kuwait in 1990-1991).
2.3 Amendment C (to
the draft resolution)
5. This amendment aims to include
a reference to the European Convention on Human Rights (ETS No. 5) and
other international human rights instruments that would potentially
apply to affected or innocent parties. This refers only to private
individuals or entities. In this context, it is important to note
that countermeasures cannot suspend human rights obligations (see
Article 50.1.b of the Articles on Responsibility of States for Internationally
Wrongful Acts (ARSIWA)).
2.4 Amendment D (to
the draft resolution)
6. This amendment is proposed
to avoid giving the impression that other complementary or alternative solutions
that are being proposed by some States and international actors
should be completely disregarded at this stage. These measures and
the seizure and transfer of Russian State assets are not necessarily mutually
exclusive.
2.5 Amendment E (to
the draft recommendation)
7. This amendment proposes that
the Committee of Ministers, once the international compensation mechanism
is established, considers including the damage resulting from the
period 2014-2022 in the scope of the mechanism. The Assembly has
already considered that the aggression by the Russian Federation against
Ukraine started in 2014 and it would thus make sense to include
the damage caused between 2014 and 24 February 2022 (date established
in the Register’s Statute) by acts committed in the Autonomous Republic
of Crimea, the city of Sevastopol and the temporarily occupied territories
of the Donetsk and Luhansk oblasts. This could be particularly relevant
for breaches of international law that may be established by international
bodies and tribunals in the future, including by the European Court
of Human Rights in the exercise of its residual jurisdiction covering
violations of the Convention until 16 September 2022 (for example those
that have been alleged in inter-state and individual cases against
the Russian Federation pending before the Court).
