by Alexander Mercouris for The Duran
Ukraine’s case in the ICJ looks like a device to avoid paying the likely High Court Judgment for payment of the $3 billion debt Ukraine owes Russia
The case Ukraine is bringing in the International Court of Justice is attracting scant international attention and has been almost entirely ignored by Western governments and by the Western media. Having said this it is an interesting case which begs a number of obvious questions.
Ukraine’s claim is set out in an indictment which apparently runs to 45 pages. The summary of its claim, which is dated 17th January 2017, can be found here.
Essentially Ukraine is demanding compensation from Russia for the damage it says Russia has done to Ukraine through its aggression in eastern Ukraine and because of the harm Ukraine alleges Russia is doing to the Ukrainian and Tatar minorities in Crimea.
Two questions about this case immediately stand out: (1) its timing; and (2) why does it fail to ask that the International Court of Justice declare that Crimea’s unification with Russia is contrary to international law?
(1) Timing of the Case
The case was brought on 16th January 2017, three years after the Maidan coup, three years after Ukraine and Russia found themselves in conflict with each other, and almost three years after Crimea seceded from Ukraine and united with Russia and eastern Ukraine rose up against the new Maidan government in Kiev.
Why has this case been brought only now?
There is in fact an obvious answer to this question. In January 2017, when this case was brought, the High Court in London finished hearing Russia’s application for summary Judgment in the case Russia has brought against Ukraine for payment of the $3 billion eurobond debt Ukraine owes Russia. A decision is expected in April.
Ukraine’s defence in this case is that it does not owe Russia any money because of the amount of the $3 billion debt has been extinguished by the far greater amount Ukraine says Russia owes Ukraine arising from the damage Russia did to Ukraine as a result of its aggression in eastern Ukraine.
I have always said that I believe that the High Court is likely to rule that it has no jurisdiction to hear this defence to the Russian claim. Way back on 21st April 2015, long before the case was brought, I explained why I thought this defence was unlikely to succeed
The debt is not repayable because Russia has made its repayment impossible by committing military aggression against Ukraine
Russia categorically denies it is committing aggression against Ukraine.
The Russians would undoubtedly argue that the question of whether or not Russia is committing aggression against Ukraine has been answered in their favour by Ukraine’s signature to the Minsk Memorandum. This treats the Ukrainian conflict as a civil war and commits Ukraine to a process for its settlement.
The High Court would anyway almost certainly refuse to look at this question. It would probably again say this a matter for the International Court of Justice. It is anyway doubtful even if Ukraine could persuade the High Court that Russia had committed aggression against Ukraine that this cancels Ukraine’s whole debt.
(bold italics added)
It seems to me that what has happened is that Ukraine’s lawyers have now given Ukraine the same advice.
They must have told Ukraine that Ukraine is likely to lose the case in the High Court because the High Court will almost certainly say it has no jurisdiction to hear Ukraine’s defence since the question of whether Ukraine is entitled to compensation from Russia because of Russia’s alleged aggression against Ukraine is not an issue the High Court in London is able to decide. The High Court will almost certainly say this is a matter for the International Court of Justice.
Ukraine has therefore brought its claim in the International Court of Justice in order to pre-empt what looks like a Judgment against it in the High Court.
Possibly Ukraine is hoping to persuade the High Court to stay enforcement of its Judgment until after the International Court of Justice has made its decision. If so then it is unlikely to succeed. The High Court is most unlikely to order a stay of one of its Judgment for payment of a debt until another court makes a ruling on an entirely different matter.
More likely Ukraine is hoping to persuade the IMF – with which it is currently negotiating for further funding, and whose Board is due to review its lending to Ukraine on 20th March 2017 – to disregard any Judgment the High Court makes which declares Ukraine in default of its debt to Russia on the grounds that the question of whether Ukraine owes money to Russia will not be finally decided until the International Court of Justice makes its decision.
Russia is a member of the exclusive Paris Club of creditors. The IMF is supposed to stop all lending to Ukraine if the High Court declares Ukraine is in default of its debt to a member of the Paris Club. Presumably Ukraine is hoping that the IMF, which has already relaxed this rule, will set it aside completely in Ukraine’s favour on the basis that the question of whether Ukraine owes money to Russia will not be finally decided until the International Court of Justice makes its decision.
If this is the argument Ukraine intends to make to the IMF (which I suspect it is) then legally speaking it is desperate.
Even if Ukraine wins its case against Russia in the International Court of Justice, any compensation it is awarded cannot be enforced against Russia through the ordinary courts. It would be entirely up to Russia to decide whether or not to pay it. Russia would almost certainly refuse to pay it.
By contrast since the claim Russia is bringing against Ukraine in the High Court is for payment of a eurobond (which is a promissory note) any Judgment Russia obtains against Ukraine can be enforced immediately.
There are therefore no logical or legal grounds for the IMF to say that Ukraine is not in default to Russia if the High Court says it is, simply because Ukraine is bringing a case against Russia in the International Court of Justice.
At this point however a word of caution is in order. Since the IMF has been lending to Ukraine for essentially political reasons all along, a cynic might say it will accept whatever argument Ukraine makes however legally dubious or threadbare it might be so that it can continue lending to Ukraine irrespective of what it’s own rules say.
All I would say about that is that that may indeed happen but if it does then legally speaking we are in unknown territory, with the Russians quite possibly in that case seeking to enforce their Judgment by taking legal action in the US and European commercial courts to seize Ukraine’s IMF bailout funds. That would be an extraordinary and unprecedented situation, and I do not know what the eventual outcome or the long term repercussions would be, and I doubt anyone else does either. However I suspect the long term repercussions would be huge, and I also suspect that there are people within the IMF’s bureaucracy who think the same and who will if only for that reason be counselling against it.
The High Court is expected to decide whether or not to grant Russia’s application for summary Judgment in April. The stakes could not be higher. That makes it understandable why Ukraine has brought its case in the International Court of Justice now, however desperate legally speaking that course might be.
Putting aside these highly technical (though potentially very important) issues, the single most striking omission in the case is that though Ukraine repeatedly refers in its claim to Crimea’s unification with Russia as an ‘illegal occupation’, and claims compensation for the alleged ‘discrimination’ and ‘oppression’ by Russia of Ukrainian and Crimean Tatar minorities in Crimea, it does not actually seek a declaration from the International Court that the unification of Crimea with Russia is contrary to international law.
The reason Ukraine has failed to do this is because its lawyers have undoubtedly advised it that if it were to seek such a declaration the International Court of Justice would refuse to grant it.
This is because the International Court of Justice in its Advisory Opinion on Kosovo has previously ruled that a declaration of independence made by the people of a territory declaring themselves independent of a country to which that territory belongs are not acting contrary to international law even if their action is made unilaterally, is backed by the use of force (including outside force), and is contrary to the constitutional arrangements and laws of the country from which they are declaring themselves independent.
The Western powers lobbied the International Court of Justice hard to obtain the Advisory Opinion on Kosovo. When they obtained it they hailed it as a famous victory. Since then they have come to regret it bitterly, and since Crimea cited it in its unilateral declaration of independence from Ukraine they have completely stopped talking about it.
The Russians by contrast talk about the Advisory Opinion on Kosovo whenever the subject of the alleged ‘illegality’ of Crimea’s unification with Russia is brought up. President Putin was the first to do so in the speech he made immediately following Crimea’s unification with Russia on 18th March 2014
As it declared independence and decided to hold a referendum, the Supreme Council of Crimea referred to the United Nations Charter, which speaks of the right of nations to self-determination. Incidentally, I would like to remind you that when Ukraine seceded from the USSR it did exactly the same thing, almost word for word. Ukraine used this right, yet the residents of Crimea are denied it. Why is that?
Moreover, the Crimean authorities referred to the well-known Kosovo precedent – a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate and did not require any permission from the country’s central authorities. Pursuant to Article 2, Chapter 1 of the United Nations Charter, the UN International Court agreed with this approach and made the following comment in its ruling of July 22, 2010, and I quote: “No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence,” and “General international law contains no prohibition on declarations of independence.” Crystal clear, as they say.
I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States of America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agreed and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.
(bold italics added)
By failing to ask the International Court of Justice to declare Crimea’s secession from Ukraine and subsequent union with Russia to be contrary to international law Ukraine appears to be conceding the point. Though Ukraine and its Western allies will doubtless go on calling Crimea’s secession from Ukraine ‘illegal’, in terms of international law there are actually no grounds to do so. Ukraine’s conduct of its case in the International Court of Justice effectively admits as much.
As to the eventual outcome of the case, I am not an expert in this field. I understand the Russians are denying that the International Court of Justice has the jurisdiction to hear the case. I suspect they are right and that the International Court of Justice will agree with them.
Even if it doesn’t and even if the case goes to a full hearing – which may take years – I doubt Ukraine will be able to prove many of the claims it is making, or that it will achieve much or indeed anything in the end by bringing the case. The stony silence of Western governments and of the Western media about the case all but says as much.
Thanks for collegiately hosting this item, Saker. This is an important article.
Putin warned about the Kosovo precedent back in 2008, but as usual he was ignored.
He described it as “a terrible precedent, which will de facto blow apart the whole system of international relations, developed not over decades, but over centuries”, and that “they have not thought through the results of what they are doing. At the end of the day it is a two-ended stick and the second end will come back and hit them in the face”.
It certainly has blown back in their face. The Anglo-Zionist dream of wresting Crimea from Russia and taking control of the Black Sea have gone forever (save for another suicidal Yeltsin).
Putin the martial arts master again using the opponents’ inertia and lack of foresight to his advantage. That Crimeans could decide their own sovereignty is no small step towards breaking hegemony world wide. Leaders only get to play the “masses are too stupid to make important decisions” because the masses are poorly or mis- informed. Give us the best info and we can probably figure out a better way than war, austerity and psychopathic business models. 5 billion adult minds rather than 0.01% of that.
I actually think “they” (the US) have thought through their actions in case of Kosovo, but in their arrogance they assumed that they will be in control of the planet in perpetuity and therefore deemed the consequences inconsequential, as it were :)
Of course, they were wrong on both counts, and the chickens are coming home to roost, again – on both counts :)
There is a segment on
“Ukraine is taking Russia to court. Despite all the hysteria about Trump and Russia, will his administration follow effectively the same path of anti-Russia aggression in Ukraine? Mark Sleboda, international affairs and security analyst, discusses a range of issues.”
Here We Go Again: Growing US Military Deployment to Syria
Loud & Clear
10:13 10.03.2017(updated 11:07 10.03.2017)
The khazis wanted to create a backup state in a tatar vacated Crimea, as their resurfaced kingdom in israel may be expected to collapse within 10 years (per kissinger). The dumb right wing banderanista Ukrainians, including its polish contingent, have never realised the nudelman/pyatts had a break up of Ukraine in mind behind their Maidan appearances, they even had a saakashvili in waiting to foster a takeover of Odessa that was to become the capital of the new Khazar State carved out of Ukraine. Instead we will now see a 120th banishment of Ukrainian jews to israel, to complete the corralling of the herd for its cull.
Speaking of which – Transcarpathia is heading for secession too:
Very clear explanations of fairly complex legal dealings and doings, including the earlier document (April 2015). Thanks, Alexander Mercouris, you are the best.
Unfortunately Alex does not factor in Trump and how he views Ukraine. I think at least that Trump will not follow obummer’s – or rather biden’s – stupidity and arrogance.
In any event, the right of self-determination trumps anything and everything, despite any (international) law to the contrary, at least in democracies.
As but a few examples, tell that to the Catalans, Basques, Quebecois, and indigenous peoples worldwide.
“Democracy” is a very slippery term. As Twain noted: “If voting changed anything, they wouldn’t let us do it.”
This article is in error regarding why Ukraine has not clainmed that Crimea’s unification with Russia is contrary to international law. The Advisory Opinion On Kosovo has nothing to do with it, and I do not understand why President Putin referred to it. Crimea was an Autonomous Republic, and under international law an Autonomous Republic my declare independence by referendum. Russia did not “annex” Crimea, The Autonomous Republic of Crimea exercised it rights under international law and joined the Russian Federation. Where the Advisory Opinion on Kosovo may be applied is the case of DPR Donesk and DPR Lugansk.
1+ from me.
Wonderful article, thank you for your insight.
Speculation is just that, speculation, but I can’t help in wondering if the decisions from these two cases will, in essence, decide the policy positioning for Washington. One of President Trump’s premium stances is “Law and Order”. So, I have to ask myself, since he’s been minimally vocal about the American’s position in Ukraine and has not granted, tmk any additional service/arms/support, which was not granted by the previous administration, is he waiting for these decisions to move forward?
The point of Crimea’s secession as you said, could have been specifically left out because they would likely lose on that point. By keeping it out of the case, that decision is a non-decision, i.e. they are still seeking damages to the indigenous peoples for that same region. Due to this, I don’t fully understand your position regarding Crimea. However, on a personal note, I do believe the region is Russian, and also believe it’s time everyone recognizes it as such. Not to mention the money which, if Ukraine were to gain it back, which they won’t, but if Ukraine did, what monies would then be owed to Russia for everything from improved infrastructure to the pensions paid.
(Ukraine still has not paid any pensions to their own citizens within the conflict zone, and haven’t now for a number of years. This is no small sum.)
I hold out hope the judgement will be in the favor of Russia. imho, what it boils down to *is the appearance of propriety.* Will legal means be made available in the future to countries which seek recompense for bonds issued? This means any country which issued bonds in the future. If Ukraine is able to weasel out of this through the court system, it would certainly set a precedent which no international lender would appreciate. This case could set the stage for WWIII, for certainly financial matters will be at the root of a conflict if one erupts.
As always, very well put. Ukraine lost the Crimea fair and square and it’s good that they are finally acting like they know it.
Revenge is a dish best taken cold. I said all along that the blowback from Kosovo, as with all the crimes of the West will be dreadful
I look forward to Russia and Iran supplying arms to Mexico which will then ally with the Confederate States and, this time, raze Washington.
Never say never. Israel did and they are now packing their bags and eating nettles, with the slogan,
“Next year in Lutsk”.