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Introduction Edoardo Stoppioni ‘There is no place for the aggressor in the common home’ – Russia’s exclusion seen from the press-room
Véronique Leblanc ECHR’s adjustments to Russia’s exit from the Council of Europe: much ado about nothing?
Julie Ferrero The reaction of international organizations to Russia’s aggression against Ukraine: between UN impotence and European renaissance
Laurence Burgorgue-Larsen The war in Ukraine: a definitive discredit for the UN?
Jean-Marc Sorel
Nº163 · NOVEMBER 18, 2023
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An Introduction Edoardo Stoppioni 1 Russia’s aggression in Ukraine marks a historic turning point, as the return of war to the European territory puts an end to the narrative of stable pacification of international relations on this continent. Given the scale of this violation of international law, the question of what consequences should be drawn from the point of view of the law of the Council of Europe was inevitable. These events caused a particular existential turmoil within an organisation whose aim is the ‘pursuit of peace based upon justice and international co-operation is vital for the preservation of human society and civilisation’, and which seeks to create ‘a closer unity between all like-minded countries of Europe’. Confronted with a blatant violation of its fundamental values, enshrined in Article 3 of its statutes, the organisation reacted by expelling Russia from its premises. The Committee of Ministers’ decision of 16 March 2022 to exclude Russia from the Council of Europe (CM/Res(2022)2) was described as inevitable.2 The decision was surely unprecedented, as no state had ever been excluded from the Council of Europe before.
Russia’s aggression in Ukraine marks a historic turning point, as the return of war to the European territory puts an end to the narrative of stable pacification of international relations on this continent
The complexities of the exclusion Andrew Drzemczewski and Rick Lawson have sketched an analysis of the complexities behind the process that has led to the exclusion, identifying six steps.3 The first step consists of Russia invading Ukraine on the night of 23 to 24 February 2022, event that shall be qualified as a ‘tectonic shift in European history’ by the European Council. Second, the reaction by the Council of Europe: the President of the Parliamentary Assembly had rapidly issued a statement to clarify that the ‘attack is in clear breach of the principles and values that the Council of Europe’; the Committee of Ministers convened an extraordinary meeting to condemn ‘in the strongest terms the armed attack’. Third step, the Committee of Ministers took a decision on the 25 February 2022 recalling that Russia was still fully bound by the Convention. Indeed, contrary to Ukraine and Moldova, Russia had not notified a derogation under Article 15 of the Convention.
1. Professor of International Law, University of Strasbourg. 2. Mustapha Afroukh, ‘L’exclusion de la Russie du Conseil de l’Europe : une décision responsable’, Le Club des Juristes, 23 march 2022. 3. Andrew Drzemczewski, Rick Lawson, ‘Exclusion of the Russian Federation from the Council of Europe and the ECHR: An Overview’, 21 Baltic Yearbook of International Law, 2023 (forthcoming).
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Nº163 · NOVEMBER 18, 2023
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Fourth step, with the attacks continuing, the Committee of Ministers seized the Parliamentary Assembly of the question of the necessity to resort to Article 8 of the State. An extraordinary session is held on 14-15 March, when the decision materialises progressively on the need for Russia to leave the Council of Europe. Nevertheless, during this second day, Russia notified its intention to quit the institution, using Article 7 of the Statute. Fifth step, Parliamentary Assembly Opinion 300 is adopted to conclude the exit. The Committee of Ministers had decided to bypass Article 7 and to maintain the exclusion decision under Article 8, to avoid the risk of a subsequent decision to revoke the withdrawal. Doubts on the interpretation of the respect of the procedure spelled out in Article 8 were put forward. Sixth step, Russia’s exclusion created a complex legal situation where ‘a few things are clear, but many other matters are not; we find ourselves in mostly uncharted waters’, as Drzemczewski and Lawson put it: as of 16 March 2022, Russia is no longer a contracting party to the Statute of the Council of Europe and of all the instruments thereof.4
4. Andrew Drzemczewski, Rick Lawson, cit., p. 9.
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Nº163 · NOVEMBER 18, 2023
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Exiting international organisations: from theory to practice States’ withdrawals from international organisations have recently been at the forefront of the international scene. After Brexit and the decisions of different States to quit the ICSID system, Nicaragua’s decision to quit the OAS, Burundi’s stance towards the ICC, Russia’s episode continued this multiplication of practice.
States’ withdrawals from international organisations have recently been at the forefront of the international scene
In a recent and timely PhD thesis on the concept of withdrawal from international organisations, Habib Badjinri Touré has explored the complex theoretical dimensions at stake in this legal configuration.5 His work underlined that all these complexities stem for the dual perception that we can have of the treaty, which is the object of the withdrawal. While such treaty is the constitution of the international organisation, creating the legal personality and organising the functional determination of the institution, it remains essentially an expression of will from the point of view of the Member States, that tend to treat it as an ordinary treaty. International law has therefore tried to adjust special conditions over the exercise of this right of withdrawal, to bind the unilateral action states and protect the integrity of the organisation. This very informative work analysed very recent State practice and puts into perspective Russia’s decision to ‘un-sign’ the Rome Statute in 2016, with the beginning of its hegemonical run towards Ukraine (see Statement by the Russian Foreign Ministry, N° 2111-16-11-2016, 16 November 2016)6. Similarly, it unpacked how, unlike in the Greek precedent, the Council of Ministers has gone to the end of the Article 8 procedure and excluded Russia, disregarding the notification of withdrawal because of the ‘real opposition between the Council and Russia, as well as Russia’s distrust of the Organisation and the latter’s clear desire to demonstrate its power in the face of a recalcitrant member’.7
The dramatic end of the ECHR’s protection over Russian jurisdiction But the main consequence of these legal intricacies, in terms of the law of the Council of Europe, is certainly the end of the application of the ECHR over Russian jurisdiction: as Drzemczewski and Lawson put it, “the largest country on the continent is now outside the scope of application of the ECHR”8.
5. Habib Badjinri Touré, Le retrait des États membres des organisations internationales, PhD in international law, Aix-Marseille University, 2022. 6. Habib Badjinri Touré, Le retrait des États membres des organisations internationales, cit., p. 100. 7. Habib Badjinri Touré, Le retrait des États membres des organisations internationales, cit., p. 104. 8. Andrew Drzemczewski, Rick Lawson, cit., p. 15.
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Nº163 · NOVEMBER 18, 2023
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The ECtHR was confronted with the legal consequences of these events in the Fedotova case9. The Grand Chamber first confirmed that under Article 58 para. 3 of the Convention, exclusion is governed by the same rules which apply to denunciation under Article 58 paras. 1 and 2. The State therefore remains bound by the Convention for six months after the exclusion took place and ‘in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective”. The Court logically concluded that it “remain[ed] competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022’ (para. 72). An important element of complexity concerned nevertheless the situation and role of the nationally appointed judge is more uncertain. As we have remarked with Olivier Baillet,10 under Article 20 ECHR, the Court consists ‘of a number of judges equal to that of the High Contracting Parties’. This would imply that, as from 16 September 2022, the judge elected ‘with respect to’ Russia (Art. 22) ceased to be a judge. However, he still was when the applications were lodged, in 2010 and 2014, when the case was referred to the Grand Chamber (12 October 2021), and even when the first deliberation took place on April 27 2022. Furthermore, the judge in respect of a party is ‘ex officio member’ when the Chamber or Grand Chamber examines a case against that State (Art. 24 para. 4). However, in this case judge also took part to the second round of deliberations, 12 October 2022, after Russia was no longer party to the Convention. According to judge Poláčková, such a participation breached Article 20 and, as a result, the case was not examined by tribunal ‘established by law’ to which Article 6 para. 1. refers. Precedents appears to support this argumentation. He notes that when Greece withdrew from the Council of Europe in 1970, Judge Maridakis was barred from the examination of a case where he had attended the oral hearings (De Wilde, Ooms and Versyp v. Belgium (18 June 1971, § 11). Furthermore, one could add that when Czechoslovakia was dissolved in 1992, judge Repik ceased to be a judge before he was re-elected for Slovakia in 1993. The opposite solution adopted here, not reasoned in the judgment, strengthens an institution, the national judge, which was already controversial when the ECHR was drafted and leaves the European system isolated. The Interamerican Court deemed the idea ‘conceived in international law for the resolution of classic disputes between States rather than human rights litigation’ and excluded its application to individual applications.11 Article 14 para. 3. of the Protocol on the Statute of the African Court also prevents judges from sitting in cases directed against their State of nationality.
Structure of the issue This Special Issue attempts to address the central questions raised by these events. Firstly, Véronique Leblanc, a journalist specialising in the Council of Europe who followed the Russian expulsion for the Belgian media, relates how the events were experienced from within the walls of the Council of Europe. Julie Ferrero then explores the impact of exclusion before the European Court of Human Rights. Two Long-Reads then put these issues into perspective by adopting a comparative approach. Laurence Burgorgue-Larsen introduces a comparison with the institutional reaction of the European Union, while Jean-Marc Sorel questions the way in which these events question the evolution of the UN’s institutional mechanism for maintaining peace and security.
9. ECtHR (Grand Chamber), Fedotova et al. c. Russia, 17 January, 2023, app. nos 40792/10, 30538/14 et 43439/14. 10. Edoardo Stoppioni, Olivier Baillet, ‘Fedotova v. Russia: at the margins of LGBTI rights’, EU Law Live, 13 February 2023. 11. IACtHR, Advisory Opinion OC-20/09, paras. 36 and 45.
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Nº163 · NOVEMBER 18, 2023
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‘There is no place for the aggressor in the common home’ – Russia’s exclusion seen from the press-room Véronique Leblanc 1 ‘This time it’s official: by decision of the Committee of Ministers of the Council of Europe announced earlier this afternoon, the Russian Federation is excluded from the pan-European organisation as of March 16, 2022. The Russian flag no longer flies alongside those of the 46 other member states of the Council of Europe on the square in Strasbourg; it has been removed, as has the plaque that identified it with the date of Russia’s accession, February 28, 1996’. On rereading these few sentences that I have written at the beginning of an article, images come to mind: that of a flag lowered discreetly in the greyness of a late March morning, and that of the tense faces of the few people gathered around the permanent representative of the Russian Federation to the Council of Europe, the only authority present. The moment felt like a dreary death knell that we knew was as inevitable as it was fraught with consequences. The machine had already been set in motion on 24 February 2022, the day the Russian Federation began its armed aggression against Ukraine. By denouncing ‘a flagrant violation of the Statute of the Council of Europe’, Marija Pejčinović Burić, Secretary General of the organisation, had paved the way for a suspension or even exclusion of Russia, since this text, adopted in London in 1949, provides that in the event of a serious breach of the principle of the rule of law and the values of the Council of Europe, the Committee of Ministers may, in fine, ‘decide that the member in question has ceased to belong to the Council of Europe as from a date to be fixed by the Committee of Ministers itself ’. Under the Italian presidency at the time, this Committee of Representatives of the Ministers of Foreign Affairs of the Council of Europe wasted no time and met in the afternoon of the same day to ‘discuss the next steps in reacting to the Russian attack on Ukraine’, while the Parliamentary Assembly, through the voice of its President Tiny Kox, called for ‘a robust and consolidated response’ to this ‘clear violation of the principles and values upheld by the Council of Europe and its member states’. In the face of the ‘unthinkable’, highlighted by Human Rights Commissioner Dunja Mijatović, the Council of Europe’s statutory bodies displayed a unity that had been lacking in April 2014, when the Parliamentary Assembly suspended the voting rights of the Russian delegation in response to the annexation of Crimea. 1. Journalist specializing in the functioning of the Council of Europe.
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By denouncing ‘a flagrant violation of the Statute of the Council of Europe’, Marija Pejčinović Burić, Secretary General of the organisation, had paved the way for a suspension or even exclusion of Russia
Nº163 · NOVEMBER 18, 2023
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The Russian parliamentarians then slammed the door on the hemicycle, but their ambassador continued to sit on the Committee of Ministers, which created a heavy distortion within the Organization.
The Council of Europe, united and determined
Once war had been declared and the first declarations published on 24 February 2022, there was no time for procrastination, and the Council of Europe immediately set to work
Five years of ‘Russian crisis’ followed, and many articles were written recounting the tensions between Moscow and Strasbourg, between the Assembly and the Committee of Ministers and, within the Assembly itself, between the national delegations, which clashed over a recurring question: as the only platform in the world where parliamentarians from 47 member states can meet, should the Assembly and the Council of Europe as a whole forgo dialogue in favour of sanctions? Dialogue was advocated, and the representatives of the Duma made their grand - and arrogant - return to Strasbourg in June 2019, much to the dismay of the Ukrainian, Georgian, Baltic and British delegations, who, after February 24, 2022, continue to remind us that they had warned of the Russian danger. Once war had been declared and the first declarations published on 24 February 2022, there was no time for procrastination, and the Council of Europe immediately set to work. A meeting of the Joint Committee between the Committee of Ministers and the Bureau of the Parliamentary Assembly was convened for 11 a.m. on February 25 to coordinate ‘a concerted response to this unprecedented crisis in Europe’ and, at the end of the meeting, the Committee of Ministers decided to ‘suspend the Russian Federation from its rights of representation on the Committee of Ministers and the Parliamentary Assembly of the Council of Europe’. All this ‘with immediate effect’, it was specified, but without affecting Russia’s membership status, which at this stage remained a State Party to the Council of Europe Conventions, including the European Convention on Human Rights, of which the Russian judge remained a member. The ‘suspension of the right of representation’ concerned the Russian ambassador to the Council of Europe, who was banned from sitting on the Committee of Ministers, and the 18 members of the Russian delegation, who were excluded from the work of the parliamentary assembly. ‘Channels of communication remain open’, it was stated, but it was already clear that an exclusion was looming. At the end of the joint meeting, Tiny Kox clarified that the two bodies were ‘on the same line’ and announced an extraordinary plenary session of the Parliamentary Assembly on March 14 and 15 to ‘immediately address the situation and its consequences’.
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Nº163 · NOVEMBER 18, 2023
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Russian twist on March 15 Tuesday March 15 was a day full of twists and turns, devoted to the Parliamentary Assembly’s debates on the possibility of initiating Russia’s exclusion procedure. The vote that was to follow this historic day was a foregone conclusion, with everyone counting on a large majority in favour of giving the green light to the Committee of Ministers, which was to formalise its decision on Wednesday. At around 5.30 pm, however, the final blow came in the form of a press release from Council of Europe spokesman Daniel Holtgen, announcing ‘the formal notification of the withdrawal of the Russian Federation, as well as the information of its intention to denounce the European Convention on Human Rights’. Moscow had therefore decided to short-circuit the now inevitable process, preferring instead to announce its own voluntary departure from an organisation whose ‘unifying potential has been destroyed by the NATO and European Union countries, which see it as the only means of ideologically ensuring their military-political expansion’, as stated in the Public Statement published that afternoon on the Russian Foreign Ministry website. For the Kremlin, ‘responsibility for the destruction of the common humanitarian and legal space on the continent’ and for Russia’s departure had to be borne by those who ‘forced it to take this step’. To put it plainly, Russia preferred to assert that it was leaving rather than being expelled, but refused to be accused of depriving its citizens of the protection of the European Convention on Human Rights and the Court. Match point, the press room thought... But this was without counting on the determination of the Council of Europe, confirmed by a source inside the Committee of Ministers. The procedure launched on 25 February with the suspension of Russia’s representation rights within the statutory bodies was taking its course. The representatives of the foreign ministers were determined that the Council of Europe should take the political decision to exclude Russia from a ‘common home where there is no place for the aggressor’, as stated in the text debated all day by the parliamentary assembly. The debate continued after 5:30 p.m., without the parliamentarians having been informed of the Russian decision. When the news reached a Polish member of parliament at around 6:30 p.m., she announced it and commented with a sober ‘so much the better, we don’t want any war criminals here’. ‘Let’s not be distracted by these Russian manoeuvres’ added a British socialist, ‘everything we can do we must do’.
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Russia preferred to assert that it was leaving rather than being expelled, but refused to be accused of depriving its citizens of the protection of the European Convention on Human Rights and the Court
Nº163 · NOVEMBER 18, 2023
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The debate continued until the vote on an Opinion which confirmed the unanimous will of the assembly to see Russia excluded from the Council of Europe. During this extraordinary session, the Ukrainian delegation was represented solely by its nine female deputies, their male colleagues having been unable to leave their country due to the ban on leaving the country imposed on men aged between 18 and 60. Dressed, like her compatriots, in a traditional embroidered blouse, the head of the delegation, Mariia Melzentzeva, declared at the start of the debates that the Ukrainian people, holed up in the cellars, would not be following the vote that was about to take place at the assembly, but that she herself would be present, and that she wanted to see ‘the Russian flag lowered on the forecourt of the Council of Europe’ on the day when Russia’s departure was put on record. Her wishes came true the very next day.
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Nº163 · NOVEMBER 18, 2023
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ECHR’s adjustments to Russia’s exit from the Council of Europe: much ado about nothing? Julie Ferrero 1
While Russia’s exclusion is a significant gesture, it was not unexpected. The formalisation of this departure implies adjustments from the organisation, but also, and perhaps especially, from the Court
The loss of membership status in the Council of Europe is not an unprecedented situation. Two decades after the organisation’s establishment, Greece already announced its withdrawal in 1970 along with a sanction procedure opened against it. However, Russia’s departure presents itself in a different light and brings heavier political and institutional stakes, particularly regarding the system of the European Convention on Human Rights. The magnitude of the shock can be explained by several factors. First, the conventional system has considerably evolved since the 1970s, both in terms of litigation volumes and of symbolic significance. Additionally, relations with Russia were already marked by numerous tensions, whether it be the suspension of the state’s rights within the organisation as a sanction,2 or the recurring lack of cooperation with the Court in terms of procedure and execution.3 In this context, while Russia’s exclusion is a significant gesture, it was not unexpected. Nevertheless, the formalisation of this departure implies adjustments from the organisation, but also, and perhaps especially, from the Court, accustomed to benefiting from mandatory jurisdiction over States party to the Convention and a perfect correspondence between its competence and the scope of the 1950 text. A succession of adaptations has been gradually made by the Committee of Ministers and the Court itself since March 2022, without however being able to preserve the effectiveness of the Court’s mission despite the efforts made in this regard.
The main issue that the Court had to address concerns its jurisdiction. Unlike the principle of optional jurisdiction that is prevalent, by default, in international litigation, the European Court of Human Rights benefits from compulsory jurisdiction over all parties to the Convention, starting from the moment of its ratification. At most, it must sometimes settle questions of ratione materiae jurisdiction regarding an overly ambitious application, or territorial or temporal jurisdiction when dealing with old facts or facts that are geographically distant from the defendant’s territory. Therefore, it rarely has to question the very existence of its ratione personae jurisdiction vis-à-vis a State responsible for violations. However, in principle, Russia’s loss of membership status due to the cessation of its participation in the international organisation excludes the Court’s jurisdiction over it from the moment it takes effect, i.e., 16 September 2022, in accordance with the resolution of March 1. Professor of International Law, University Jean Moulin (Lyon III). 2. Following Crimea’s annexation in 2014, Russia’s voting rights at the Parliamentary Assembly were suspended until 2029. 3. See for example, ECtHR, Carter. v. Russia, 21 September 2021, app. n°20924/07
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Nº163 · NOVEMBER 18, 2023
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Classic treaty law leads to a logical but uncomfortable situation in which the Court is still dealing with numerous cases involving Russia, even though its departure from the organisation has been confirmed 2022, which draws an analogy with the denunciation procedure of Article 58. Nevertheless, as Russia is bound by its treaty obligations until that date, the Court remains competent for allegations of violations committed until then. Classic treaty law thus leads to a logical but uncomfortable situation in which the Court is still dealing with numerous cases involving Russia, even though its departure from the organisation has been confirmed. The paradox borders on irony here, as even before its withdrawal from the Council of Europe, Russia’s compliance with the Convention and the judgments rendered against it were already limited. The situation is even more absurd because, in order to ensure respect for treaty rights, the judicial mechanism imposes, through a judgment, new obligations on the defendant aimed at ensuring compliance with its initial obligations. Consequently, new secondary obligations, particularly in terms of reparation, may arise at a time when the State is no longer bound by the text. While they logically stem from a primary obligation at a time when it was enforceable against the State in question, the practical implications of this legal mechanism seem detached from reality, to say the least. This was indeed the meaning behind one of the criticisms made by Judge Wojtyczek in the Fedotova judgment,4 which highlighted the lack of practical significance of this decision. This paradox persists even at the procedural stage in each of the cases involving Russia since its departure. It must be acknowledged in this regard that the lack of cooperation from the State with the Court has already been subject to numerous criticisms in the past. It is not surprising that this lack of cooperation has become systematic since the successive announcements of exclusion and withdrawal in March 2022. However, the Court made it clear in the case of Svetova et al. v. Russia5 that despite losing its status as a High Contracting Party to the Convention, Russia still has an obligation to cooperate under Articles 34 and 38 of the Convention. Despite this, the State has refrained from any communication with the organisation or the jurisdiction, leaving the Court to solely rely on the allegations of the applicants in the pending cases before it. This abstention has two types of consequences, as revealed in the judgment rendered regarding just satisfaction in the case of Georgia v. Russia (II).6 Firstly, the Court is entitled, under Article 44C of its Rules, to draw consequences from the State’s refusal to cooperate. In the past, it has frequently criticised Russia for its ‘distinct lack of frankness and transparency’,7 condemned its ‘superficial and evasive’ responses to its questions,8 and denounced the non-constructive approach taken by the government9.
4. ECtHR (Grand Chamber), Fedotova et al. c. Russia, 17 January, 2023, app. nos 40792/10, 30538/14 et 43439/14. 5. ECtHR, Svetova et al. c. Russia, 24 January 2023, app. n° 54714/17 6. ECtHR (Grand Chamber), Georgia v. Russia (II), 28 April 2023 (Just satisfaction), app. n°38263/08. 7. ECtHR (Grand Chamber), Ukraine and The Netherlands v. Russia, app. nos 8019/16, 43800/14, et 28525/20, § 456. 8. Id., §457. 9. Id., §459.
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In the Georgian case, the Court bases its reasoning on Articles 34 and 38 of the Convention and Article 44A of its Rules. Furthermore, according to the Court, Article 44C constitutes a ‘an enabling clause for the Court, making it impossible for a party unilaterally to delay or obstruct the conduct of proceedings’,10 It then concludes that the refusal to submit observations or participate without ‘sufficient reason’ could potentially be seen as a ‘waiver’ of the right to participate in the proceedings. Secondly, this ‘sanction’ for the lack of participation actually has also detrimental effects on the applicant. As seen in the case of Georgia v. Russia (II), the absence of an adversarial debate can cause the defendant to limit its argumentation due to the lack of challenge, only for the Court to ultimately disregard it due to its lack of development. Consequently, the Court has rejected some of Georgia’s claims, even though the weakness identified in the presentation could be seen as one of the consequences of Russia’s obstruction.11 The departure of Russia has also involved adjustments to the composition of the Court. In its resolution of 5 September 2022, the jurisdiction takes note of the cessation of the Russian judge’s function as of 16 September. Consequently, it informed the parties, particularly in the cases Kutayev v. Russia12 and Svetova and al. v. Russia,13 that it intended to designate one of its serving judges as an ad hoc judge for the purpose of examining their applications and that it intended to apply the same approach in the future. As anticipated, the government did not respond to this communication. The Grand Chamber confirmed this approach in its decision of 25 January 2023 in the case of Ukraine and the Netherlands v. Russia.14 However, the composition of certain bench formations prior to the determination of this solution may have been problematic. In the case of Fedotova, for example, Judge Poláčková challenged the composition of the Grand Chamber and based her dissenting opinion on this procedural issue. In her view, and in accordance with the Greek precedent, the Russian judge should have been disqualified from the case since Russia had ceased to be a Party to the Convention at the date of the deliberations. Indeed, while he had attended the hearings in the case De Wilde Ooms and Versyp v. Belgium, the Greek judge at the time did not participate in its examination, which took place after the Greek withdrawal took effect on 31 December 1970. In this sense, the bench formation that rendered the judgment in Fedotova does not, according to her, constitute a tribunal established by law.15
Lack of cooperation from the State with the Court has already been subject to numerous criticisms in the past. It is not surprising that this lack of cooperation has become systematic since the successive announcements of exclusion and withdrawal
10. ECtHR (Grand Chamber), Georgia v. Russia (II), 28 April 2023 (Just satisfaction), app. n°38263/08, §26. 11. See Joint partly dissenting opinion of judges Bošnjak, Pastor Vilanova, Wojtyczek, Serghides, Chanturia, Jelić, Sabato and Schembri Orland. 12. ECtHR, Kuyatev v. Russia, 24 January 2023, app. no. 17912/15. 13. Op.cit. 14. Op. cit, §§39 and 40. 15. Op. cit, §13.
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Furthermore, the consequences of Russia’s departure, despite the aforementioned re-arrangements, inevitably unfold during the stage of executing judgments. Russia, consistent with its stance since its deemed ‘procedurally incorrect’ exclusion, remains unresponsive to all appeals from both the Court and the Committee of Ministers. Moreover, efforts in this regard appear futile in light of the law enacted as early as 7 June 2022, which authorises the State to cease enforcing Court decisions after 15 March 2022. It further stipulates that any awarded just satisfaction may be paid until 1 January 2023 for judgments finalised before this date, but such payment will exclusively be issued in rubles and to Russian bank accounts only. Thus, even the sophisticated monitoring mechanism established under the auspices of the Committee of Ministers of the Council of Europe is insufficient to counter the complete lack of communication from a former party. The primary leverage for enforcement lies in the threat of non-compliance proceedings and potential sanctions within the organisation, including the suspension of representation rights. However, none of these incentives wield any influence over the Russian State, which is already barred from participating in the organisation in accordance with Resolution CM/ Res(2022)1 on the legal and financial consequences of the suspension of the Russian Federation from its representation rights in the Council of Europe.16 While the option of filing an infringement application before the Court due to the nonexecution of a judgment finding violations committed before 16 September 2022 remains theoretically possible, its chances of success are virtually nonexistent. Consequently, at this stage, the conventional mechanism is deadlocked, caught between the imperative of effectively safeguarding conventional rights and the inherent limitations of international jurisdiction. While it is commendable that the Council of Europe institutions strive not to abruptly abandon Russian litigants, it must be acknowledged that the gradually implemented adjustments to mitigate the shockwave generated by the exclusion of the Russian Federation appear ineffective. Ultimately, these efforts primarily pertain to internal matters within the organisation. Symbolically, the upheld obligations by the departing State until its departure and the continuation of resulting secondary obligations contribute to the credibility of the mechanism in the eyes of its members. Furthermore, they likely serve as a deterrent to other states that may be tempted to suspend or circumvent their conventional obligations. Nonetheless, the effectiveness of rights protected by the Convention is by no means assured by these superficial arrangements, which offer little hope of justice for applicants in cases treated until September 2022, as well as the more than 16,000 pending applications as of 1 February 2023.
At this stage, the conventional mechanism is deadlocked, caught between the imperative of effectively safeguarding conventional rights and the inherent limitations of international jurisdiction
16. Adopted by the Committee of Ministers on 2 March 2022, during the 1427th meeting of the Ministers’ Deputies
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Nº163 · NOVEMBER 18, 2023
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The reaction of international organizations to Russia’s aggression against Ukraine: between UN impotence and European renaissance Laurence Burgorgue-Larsen 1 Ironically, or as yet another cynical tactic, the Russian invasion of Ukraine on 24 February 2022 took place at a time when Russia held the presidency of the Security Council. Is the violation of international law a fact, and if so, what leeway do international organisations have in the face of Vladimir Putin’s Russian actions?
Is Russia’s invasion of Ukraine in violation of international law? Major international organisations, both universal (such as the UN) and regional (such as the Council of Europe, the European Union and the Organization of American States), have condemned the invasion of Ukraine under the rules of international law. UN Secretary General António Guterres, Council of Europe Secretary General Marija Pejčinović Burić, European Commission President Ursula von der Leyen, European Council President Charles Michel, Organization of American States Secretary General Luis Almagro and the Permanent Council of the latter organisation have all expressed their unanimous condemnation: the attack on Ukraine’s sovereignty was carried out in violation of the principles governing international law. The United Nations Charter - the landmark text of the post-45 era - unambiguously prohibits the use of force between states (Article 2 § 4 of the UN Charter). While public international law recognises three types of exception to this principle (the call for assistance; intervention authorised under Chapter VII of the UN Charter; and, last but not least, self-defence on the basis of Article 51 of the Charter), none of them applies in this case. What room for manoeuvre do the international organisations of which Russia is a member (UN and Council of Europe) have? The UN is the international organisation which, to date, has blatantly demonstrated its powerlessness, which stems directly from the Security Council’s operating rules, as laid down at the end of the Second World War and never reformed to this day. Indeed, a draft resolution submitted to the Security Council on 25 February 2022 by the United States and Albania reaffirmed Ukraine’s commitment to sovereignty, independence, unity and territorial integrity. Although the draft text received 11 votes in favour, followed by 3 abstentions (China, India, United Arab Emirates), it was blocked by the Russian veto. And with good reason: with 15 members, including 5 permanent members with veto power, the UN decision-making body was paralysed by the veto of the aggressor state. The explanation given by Russia’s Permanent Representative to the Security Council, Vassily Nebenzia, to explain his vote, reveals a tragic cynicism:
1. Professor of Public Law, Sorbonne Law School.
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‘Russia voted against the anti-Russian, anti-Ukrainian draft resolution that was presented to the Security Council today. I don’t think I need to explain why it is anti-Russian - just look at it briefly. But why anti-Ukrainian? Because this document, without a doubt, contradicts the fundamental interests of the Ukrainian people, as it seeks to protect and secure in Ukraine the system of power that has brought the country to this tragedy that has already lasted for at least 8 years. We would like to thank those who have chosen not to support this project’ Even if the UN Secretary General’s speech is one of appeasement, insisting on the need for Russia to ‘lay down its arms’, while trying to deal with the most urgent humanitarian issues, the fact is that the UN’s impotence is glaring. And yet, on 26 February 2022, Ukraine referred the matter to the UN’s principal judicial body, the International Court of Justice.
The UN is the international organisation which, to date, has blatantly demonstrated its powerlessness, which stems directly from the Security Council’s operating rules, as laid down at the end of the Second World War and never reformed to this day
The Council of Europe (47 member states) has somewhat more room for manoeuvre. This major pan-European organisation, created in 1949 to enshrine and defend the values of liberal democracy, was joined by Russia in 1996. The Organisation’s DNA, mentioned in Article 3 of its Statute, consists in recognising ‘the principle of the rule of law’; any member state which ‘seriously infringes’ this provision ‘may be suspended from its right of representation’ and may be ‘invited by the Committee of Ministers to withdraw’ from the Council of Europe (Article 8). In a decision adopted on 25 February 2022, the Committee of Ministers of the Council of Europe decided to ‘suspend’ Russia from its rights of representation, both within the Committee and within the Parliamentary Assembly. While the warning is clear, it is nonetheless well-considered and measured, as Russia remained at first a member of the organisation and a party to all the conventions adopted under its aegis, notably the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). As a result, the Russian judge (Mikael Lobov) can continue to sit on the European Court, while applications against Russia continue to be examined. At that stage, the question was whether the Council of Europe - in view of the acceleration and intensification of Russian exactions on Ukrainian territory - would decide to move up a gear by ‘inviting’ Russia to withdraw (Article 8), or whether it will prefer to maintain the opening of ‘channels of communication’? Would Realpolitik prevail (bearing in mind that Russia is one of the biggest contributors to the Council of Europe’s budget), over respect for the law as embodied in Articles 3 and 8 of the Statute? The solution to this question has since then offered a further element of reflection in the context of this intense political debate.
Does the European Union have more room for manoeuvre? The brutality of Russia’s aggression in Ukraine has led to a crescendo of reactions from the European Union. In the space of four days (24-27 February 2022), it succeeded in doing what it had failed to do in 30 years in the field of security and defence. As soon as Russia announced its recognition of the two Russian separatist regions of Donetsk and Luhansk, the Union reacted on 23 February 2022 by adopting a series of highly targeted sanctions.
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The invasion of Ukraine the following day also prompted an immediate reaction. While the European Council’s conclusions of 24 February 2022 condemned the Russian invasion - considering in particular that ‘the use of force and coercion to alter borders has no place in the twenty-first century’ - retaliatory action quickly followed the symbolic rhetoric of condemnation. Indeed, a first set of targeted sanctions was adopted the following day, on February 25, 2022. Firstly, financial sanctions, targeting 70% of the Russian banking market, as well as the main state-owned companies, particularly in the defence sector. They also targeted the energy sector, a key economic area of particular benefit to the Russian state. A ban on European exports was also decreed, with the aim of hitting the oil sector by making it impossible for Russia to modernize its refineries. In addition to these measures, a ban on the sale of aircraft and equipment to Russian airlines, the limitation of Russia’s access to crucial technologies (such as semi-conductors or cutting-edge software), and the restriction of access to the European Union for Russian diplomats and related groups and businessmen were also decreed. Nevertheless, these sanctions were far from sufficient for many of the parties concerned, first and foremost for President V. Zelensky. Saturday, 26 February 2022 marked a first significant turning point in Russia’s strategy of strangulation and financial isolation. Long awaited by Ukraine (especially since 2014 when Russia annexed Crimea to near general indifference), the European Commission, as well as France, Germany, Italy, the United Kingdom, Canada and the United States adopted a ‘joint declaration’ with very solemn opening sentences: the strategy of radical financial strangulation was finally in effect as it was decided to remove ‘certain Russian banks’ from the SWIFT messaging system. The individual statement by the President of the Commission adopted on the same day would make it clear that she ‘proposes to European leaders’ to follow up on the commitment she has adopted with Canadian and American partners as well as with Germany, France and Italy. Every day added, however, its share of ever more astonishing and imposing actions. The determination of the President of the European Commission, Ursula von der Leyen appeared growing on Sunday February 27, 2022, when the President announced a series of extraordinary measures: in addition to deciding to sanction the Belarusian regime of Lukashenko (ally of Russia); to put an end to the toxic disinformation of Russian radios and televisions in Europe (Russia Today, Sputnik and other media of the same type); to prohibit the overflight of European airspace to any Russian company; the European Union, for the first time in its history, pledged to finance the purchase and delivery of arms to Ukraine. This European commitment took a singular turn with the unconditional alignment of Germany. In a historic speech before the Bundestag, Olaf Scholz followed in the footsteps of the European Commission by deciding to release 100 billion euros to modernise its defence and to send weapons to Ukraine. The initial reactions of the mentioned international organisation were therefore an interesting object of analysis. 4 days after the start of an attack which stunned the world, if the decision-making body of the UN is paralysed and if the Committee of Ministers of the Council of Europe has taken a measure that is after all essentially symbolic, it is the European Union which, against all odds, succeeded in reacting to the seriousness of the situation. It is a sort of (unexpected) return to the sources: that of Unity to preserve Peace.
4 days after the start of an attack which stunned the world, if the decision-making body of the UN is paralysed and if the Committee of Ministers of the Council of Europe has taken a measure that is after all essentially symbolic, it is the European Union which, against all odds, succeeded in reacting to the seriousness of the situation 17
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The war in Ukraine: a definitive discredit for the UN? Jean-Marc Sorel 1 International law is back in the spotlight, and for the worse. Everyone can denounce the violations of this law in Russia’s war in Ukraine and point to its lack of effectiveness. However, we need to refine and clarify that it is UN law in its security aspect that is being flouted, and not international law as a whole, even if it is undeniable that the UN Charter does contain its foundations, starting with the prohibition on the use of force in international relations, which features in the Pantheon of jus cogens norms in Article 2 of the UN Charter. The aim here is not to add another stone to the many proclamations issued in the wake of this aggression, but to outline some of the legal aspects highlighted by this war, through three well-known recurring issues concerning the UN: the unlawful use of force, the right to self-determination, and global governance in matters of peace and security.
International law is back in the spotlight, and for the worse. Everyone can denounce the violations of this law in Russia’s war in Ukraine and point to its lack of effectiveness
1. Professor of International Law, Sorbonne Law School.
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Why are the effects of the United Nations General Assembly resolution against Russia so limited? The massive reactions of international organisations with a universal or regional vocation (European Union, Council of Europe) were swift and almost unanimous. To this we can add a referral by Ukraine to the International Court of Justice - with a request for the indication of provisional measures - to denounce both a potential genocide in progress but also the fanciful accusation of genocide made by Russia against Ukraine; as well as the opening of an investigation by the International Criminal Court, to whose statute Ukraine is not a party but with which it is cooperating. Everything seems in place for a unanimous denunciation of what is undoubtedly one of the most flagrant violations of the UN Charter since 1945. The problem lies in the UN’s inability to go any further. Armed with its veto, Russia logically blocked a Security Council resolution on 25 February. The same Council prompted the General Assembly to adopt a resolution denouncing the situation in Ukraine. This was done in resounding fashion on 2 March, with 141 countries voting in favour of the resolution calling on Russia to cease using force in Ukraine (Russia, Belarus, North Korea, Eritrea and Syria voting against, and 35 countries abstaining, including many African countries benefiting from Russia’s manna). A victory, then (especially compared to the less clear-cut vote in 2014 at the time of the annexation of Crimea) for this non-binding but politically important resolution to isolate Russia. This resurrected the spectre of the famous 1950 resolution that had temporarily allowed the General Assembly to take up the Korean war, while the USSR was practicing the empty chair policy on the Security Council. With one important difference: in 1950, the Security Council had already authorized the use of force in the absence of the Soviet Union. Nothing like that today. The General Assembly can congratulate itself, but it can hardly go any further.
The massive reactions of international organisations with a universal or regional vocation (European Union, Council of Europe) were swift and almost unanimous
Are the alleged secessions in Ukraine purely a matter of internal Ukrainian law, or do they justify a UN response? The discreet ‘self-determination of peoples’ in the UN Charter became the weapon of decolonisation, but by limiting this right to the borders inherited from predecessors. This avoided opening the Pandora’s box of border reshuffling following decolonisation, but also blocked any desire for secession by leaving this question to the discretion of the domestic law of the state concerned. International law was left out of the equation and could only deal with the situation if the secession was successful, since this would raise questions of recognition of the new entity by other states, and of succession to the state from which the new entity had broken away. Vigorously opposed within the UN in the name of state integrity, secession remains the symbol of a right to self-determination that is very difficult to control. Where to stop it?
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Are we still in domestic law? At the very least, an international framework - if not a law - has gradually emerged: secession must be provided for in the constitution (which is rare), it must take place peacefully, and it must be approved by the entire population of a state
As it had done in 2008 for South Ossetia and Abkhasia, self-proclaimed independent republics following their secession from Georgia in 1992, Russia recognized the independence of the separatist republics of Donbass (Donetsk and Lugansk) in 2022, before invading Ukraine. Between these two events came the secession-annexation of Crimea in 2014. This is undoubtedly where the UN’s past weaknesses lie in its necessary reactions to Russia. These were muted in the inter-state circle, starting with the European Union. Although economic sanctions were imposed, they were never more than symbolic. Yet the worm was in the fruit. Relying on the will of the Russian-speaking majority in Crimea, Russia ‘helped’ to organise an election limited to Crimea, the result of which could only be positive. Are we still in domestic law? At the very least, an international framework - if not a law - has gradually emerged: secession must be provided for in the constitution (which is rare), it must take place peacefully, and it must be approved by the entire population of a state, and not just by the region wishing to become independent or to be attached to a neighbouring state. These conditions were not met in Crimea, and no one was overly concerned, sometimes approving the referendum on the pretext that the Crimean population was in favour of it (which is true), or that the province had only recently been attached to Ukraine (1954). But time is no object. The break-up of the USSR led to the emergence of 15 independent states within the borders inherited from previous divisions. It was up to the UN to firmly remind Russia of this in the name of Ukraine’s integrity, well before 2022. The watertight seal between domestic and international law had become illusory. Since the secession process is not the result of purely internal events, but was initiated and supported by a foreign state without any consultation with the state concerned - in this case, Ukraine - and with the aim of annexation, it is illusory and hypocritical to consider that it is a purely internal matter. It would be all the more illusory if Russia were to carry out its threat to annex Ukraine outright, a member state of the United Nations since 1945. Indeed, the irony of history is that Ukraine has been a member of the UN since 1945, Stalin having obtained three seats for the Soviet Union (those of the USSR, Ukraine and Belarus).
Is the crisis in Ukraine definitively discrediting the UN? The United Nations Charter is an old lady, but one that has miraculously retained the silhouette of its youth, if not its birth. The system of governance in matters of peace and security has remained in the hands of the five permanent members of the Security Council. You can live happily and healthily, or one day be overtaken by age. In this case, the war in Ukraine is undoubtedly putting an end to the pattern established after the Second World War, even if the effects of age have long been overlooked.
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When teaching international law, it is always possible to defend the United Nations Charter and its particular structure by arguing that the prohibition on the use of force between states has a positive record (and that infra- or trans-state conflicts are easily pointed out as being in the majority today), or that failing to find the key to reforming the Charter without the endorsement of the five permanent members of the Security Council, the balance created has remained precarious but acceptable. In reality, this balance has always been precarious, but the Cold War helped to conceal it, and the short-lived euphoria of the post-Cold War era did nothing to upset it. Breaches soon appeared again, as, among other examples, the Kosovo question was the subject of a questionable, a posteriori validation of the NATO bombings in 1999 - which is undoubtedly the starting point for Russia’s subsequent attitude - the United States and the United Kingdom intervened in Iraq without Security Council approval in 2003, and Russia is now transforming these breaches into a yawning chasm. A nagging question, then: why should Russia respect principles transgressed by others before it, including permanent members of the Security Council?
The United Nations Charter is an old lady, but one that has miraculously retained the silhouette of its youth, if not its birth
The pretexts may be largely imaginary, but those invoked by the United States to intervene in Iraq in 2003 were no less so. This in no way excuses Russia, but it does bring the UN face to face with its own turpitudes, or rather with its own selflocking system, intended as such in 1945. The end of an era? No doubt not immediately, since every student, no matter how old, has heard of Security Council reform, its many drafts and versions - in short, a sea serpent that we pass over in silence, discouraged from recalling its antics.
Why should Russia respect principles transgressed by others before it, including permanent members of the Security Council?
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