Volume III (2015) Issue 1

International Editorial Council Neil Andrews (Cambridge University, UK)

Bill Bowring (Birbeck University of London, UK)

Loïc Cadiet (University of Paris 1 Pantheon-Sorbonne, France)

Oscar Chase (New York University, USA)

Russian Editorial Board Sergey Belov (St. Petersburg State University)

Nataliya Bocharova (Lomonosov Moscow State University)

Gleb Bogush (Lomonosov Moscow State University)

Gennady Esakov (Higher School of Economics)

Mirjan DamaŠka

Paul Kalinichenko

(Yale University, USA)

(Kutafin Moscow State Law Univeristy)

James Klebba (Loyola University, USA)

Carrie Menkel-Meadow (Georgetown University, USA)

Peter Murray (Harvard University, USA)

Vernon Palmer (Tulane University, USA)

Marcel Storme (Gent University, Belgium)

Janet Walker (Osgoode Hall Law School of York University, Canada)

Teresa Wambier (Pontifical Catholic University of São Paulo, Brazil)

Chief Editor Dmitry Maleshin Executive Editor Nataliya Bocharova

Dmitry Maleshin (Lomonosov Moscow State University)

Sergey Marochkin (Tyumen State University)

Sergey Tretyakov (Lomonosov Moscow State University)

Trustee committee Nikolai ZHILTSOV (International Law Institute) Contacts: www.russianlawjournal.org [email protected] [email protected] ISSN 2309-8678 Frequency of Publication: four issues per year

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All rights reserved. No part of this journal may be reproduced in any means without the prior permission of the publisher. The views expressed in this issue are those of the authors and do not reflect the views of RLJ Editorial Council and Editorial Board.

Russian Law Journal (RLJ)

An independent, professional peer-reviewed academic legal journal. Aims and Scope The Russian Law Journal is designed to encourage research especially in Russian law and legal systems of Eurasia countries. It covers recent legal developments not only of this region, but also on an international and comparative level. The RLJ is not sponsored or affiliated with any university, it is an independent All-Russian interuniversity platform, initiated privately without any support from the government authorities. It is published in English and appears four times per year. All articles are subject to professional editing by native English speaking legal scholars. Notes for Contributors The RLJ encourages comparative research by those who are interested in Russian law, but also seeks to encourage interest in all matters relating to international public and private law, civil and criminal law, constitutional law, civil rights, the theory and history of law, and the relationships between law and culture and other disciplines. A  special emphasis is placed on interdisciplinary legal research. Manuscripts must be the result of original research, not published elsewhere. Articles should be prepared and submitted in English. RLJ doesn’t accept translations of original articles prepared not in English. The RLJ welcomes qualified scholars, but also accepts serious works of PhD students and practicing lawyers. Manuscripts should be submitted electronically via the website www. russianlawjournal.org. Articles will be subjected to a process of peer review. Contributors will be notified of the results of the initial review process within a period of two months. Citations must conform to the Bluebook: A Uniform System of Citation.

Table of contents

Dmitry Maleshin (Moscow, Russia) Chief Editor’s Note on 2014 Russian Legal Events...................................................5 Articles: Hugo Flavier (Bordeaux, France) Russia’s Normative Influence over Post-Soviet States: The Examples of Belarus and Ukraine..........................................................................6 John J.A. Burke (Almaty, Kazakhstan), Svetlana Panina-Burke (Almaty, Kazakhstan) Eastern and Southern Ukraine’s Right to Secede and Join the Russian Federation................................................................................................... 33 Christian Guillermet Fernández (San José, Costa Rica), David Fernández Puyana (Barcelona, Spain) Building Human Rights, Peace and Development within the United Nations............................................................................................. 58 Elena Gladun (Tyumen, Russia) Environmental Protection of the Arctic Region: Effective Mechanisms of Legal Regulation............................................................. 92 Comments: Ruth van der Pol (Leeuwarden, The Netherlands), Anton Petrov (St. Petersburg, Russia) Searching for Truth in Civil Process: The Netherlands and Russia.................110 Anatoly Pronin (Voronezh, Russia) Republic of Crimea: A Two-Day State......................................................................133

RUSSIAN LAW JOURNAL Volume III (2015) Issue 1

Olena Kucher (Kyiv, Ukraine), Aleksey Petrenko (Göttingen, Germany) International Criminal Responsibility after Katanga: Old Challenges, New Solutions.................................................................................143 Book Review Notes: Andrey Shirvindt (Moscow, Russia) Russian Contract Law for Foreigners.......................................................................169 Conference Review Notes: Marian Dent (Moscow, Russia), Oksana Yazykova (Moscow, Russia), Gandolfo Iacono (Moscow, Russia) Economic Sanctions Overview..................................................................................181

4

Chief Editor’s Note on 2014 Russian Legal Events

Dmitry Maleshin, Lomonosov Moscow State University (Moscow, Russia)

I would like to present you first issue of our Journal in 2015 (Vol. III) and continue to give sketches about Russian legal landscape. Some crucial legal events occurred in Russia in 2014. The most important and far-famed legal event in Russia was the treaty of accession of the Republic of Crimea and Sevastopol to the Russian Federation. We devoted some articles in this issue to this problem. The views are opposing and I need to emphasize that the views expressed by the authors do not reflect the views of the Journal Editorial Council and Board. In addition, we publish the translation into English of this treaty between the Russian Federation and the Republic of Crimea and Sevastopol. Taking into account that there is no official translation of this treaty, our initiative could be useful for English speaking researchers. Secondly, the US and EU sanctions adopted against Russia changes not only the economic strategy, but also the legal environment in Russia. Many conferences and seminars were held on this topic inside and outside of Russia and we have reviewed one of them. Thirdly, the new united Supreme Court of the Russian Federation started to work in August 2014. It has a new structure and many judges were rotated. It consists of 170 judges, including the Chief Justice, and chairmen of six chambers. There are six chambers: an Appeal chamber, a Judicial chamber for penal cases, and a Judicial chamber for civil cases, a Judicial chamber for economic cases, a Judicial chamber for administrative cases, and a Military chamber. The Supreme Arbitrazh Court had its functions suspended in August 2014, but the whole arbitrazh court system is still working. The Judicial chamber for economic cases is acting as the last instance for the economic cases considered in arbitrazh courts. Finally, some judicial statistics. Judicial statistics are available only for the first six months: criminal cases – 477,257, life term imprisonment – 46, acquitted – 2,680; civil cases in courts of general jurisdiction – 6,809,331.

ARTICLES

Russia’s Normative Influence over Post-Soviet States: The Examples of Belarus and Ukraine1

Hugo Flavier, Montesquieu University – Bordeaux IV (Bordeaux, France)

Debate as to the relationship between law and power in Russia has long focused on the study of hard power. Adopting the work done on soft power in the sphere of American political science, and as part of a legal analysis, we wish to show that Russia has also developed her own soft power based in part on a strategy of normative influence. Law is thus part of a trend in regaining power that has previously been lost. Admittedly this strategy is not, in itself, the preserve of Russia, as is shown by the European Union’s own use of the same approach. The fact remains, however, that there are aspects specific to Russia. Indeed, it may be possible to isolate three types of normative influence in Russia, the construction of which is linked, in part, to her history. Firstly, there is the normative legacy of the Soviet Union. A direct consequence of history, Russia has set about making that legacy bear fruit or, at the very least, ensuring that it is not fundamentally challenged. Secondly, and particularly by relying on the CIS’s institutional and political springboards, Russia has succeeded in promoting the normative alignment of those countries that she seeks to influence, which we have termed the promotion of normative convergence. Thirdly, and with greater vigour, Russia now promotes a veritable normative expansion that is increasingly based on a fait accompli rather than persuasion. These are the three types of influence that we propose to examine in this article, limiting the legal analysis to two countries that are directly concerned with this strategy: Ukraine and Belarus. Keywords: normative influence; normative expansion; regional integration; Customs Union; EurAsEC; CIS; Ukraine; Belarus; comparative law. DOI: 10.17589/2309-8678-2015-3-1-6-32 1 

 s this article was written in July 2013, we could not foresee what would later happen in Ukraine A in 2014. The few developments based on the state of law prior to the new situation have, however, been retained, insofar as these illustrate the techniques and the progressiveness of Russia’s normative influence over Ukraine. All my thanks to Rachael Singh, Lawyer Linguist, University of Bordeaux, for the assistance in translation of this paper from the French into the English language.

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1. Introduction Studies conducted in recent years on the issue of emergence, and more specifically the emergence of Russia, are generally conducted in a non-legal field. Work by economists, political scientists or even specialists in international relations has thus narrowed the scope of the research.2 Jurists are increasingly few – and therefore all the more valuable – in the field. This lack is probably due to the ambiguity of emergence as a concept. Although very recent3 and not very juridical, it is not entirely devoid of interest. It is a rich concept, offering a different understanding of the relationship between law and power in the specific context of Russia. The relationship that the Russian State maintains with its law has long been, and perhaps continues to be as one with power. This is not illegitimate at first glance, insofar as the law is one of the key tools available to public authority; indeed, for some, it is the distinguishing feature of state sovereignty conceived as being ‘the monopoly to decree positive law.’4 The specificity of Russian law, however, is that its relationship with power is circular, and that it is not supported by other legitimizing concepts, such as that of the public service or special measures in France.5 In other words, there is in Russia a concept of the autopoietic / self-creating nature of power, wherein it is the foundation of the law and legitimizes it, while the law is an instrument of power and legitimizes it in return. Law is therefore conceived, in Russia, essentially as an instrument of State action and dominion.6 This historic and continued connection 2

 Cf. in French: L’enjeu mondial. Les pays émergents (Christophe Jaffrelot, éd.) (Presses de Sciences-Po 2008) (we refer you specifically to the chapter on Russia, which is really the transcript of a debate); L’émergence de nouvelles puissances: vers un système multipolaire? Afrique du Sud, Brésil, Chine, Inde, Mexique, Russie (Sebastian Santander, éd.) (Ellipses 2009); David Teurtrie, Géopolitique de la Russie. Intégration régionale, enjeux énergétiques, influence culturelle (L’Harmattan 2010); Moscou et le monde. L’ambition de la grandeur: une illusion? (Anne de Tinguy, éd.) (Autrement 2008); cf. in English: Martin A. Smith, Power in the Changing Global Order: The US, Russia and China (Polity Press 2012); Russia’s Identity in International Relations: Images, Perceptions, Misperceptions (Raymond Taras, éd.) (Routledge 2012); Eurasia’s Ascent in Energy and Geopolitics: Rivalry or Partnership for China, Russia and Central Asia? (Robert E. Bedeski & Niklas Swanström, eds.) (Routledge 2012); The European Union, Russia and the Shared Neighbourhood (Jackie Gower & Graham Timmins, eds.) (Routledge 2011); Russia: The Challenges of Transformation (Piotr Dutkiewicz & Dmitri Trenin, eds.) (New York University Press 2011).

3

 In English, ‘emerging markets’ are often mentioned. In Russian, the term ‘bystro razvivayushchayasya strana’ is sometimes used, which roughly translates as ‘fast-developing country.’

4

 Olivier Beaud, La puissance de l’État 130 (PUF 1994).

5

 Incidentally, we refer you to the article by M.-E. Baudoin (Marie-Élisabeth Baudoin, Les cultures postsoviétiques face au droit, 2006 Revue d’études politiques et constitutionnelles Est-européennes 73). Furthermore, if we examine Russian administrative law textbooks, the authors generally study the functions of administrative law and its principles without presenting the theories that would legitimize the State’s administrative actions. The State’s administrative activities must be understood as the legal extension of the dominance of Russian policymakers from the executive branch (cf. Агапов А.Б. Административное право: Учебник [Agapov A.B. Administrativnoe pravo: Uchebnik [Andrey B. Agapov, Administrative Law: Textbook]] 32 f. (6th ed., Yurait 2009)). On special measures in French public law as a legitimizing concept, cf. Elodie Saillant, L’exorbitance en droit public (= 109 Nouvelle bibliothèque de thèses) (Dalloz 2011).

6

 This statement must, however, be now relativized (cf. Baudoin, supra n. 5).

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between law and power therefore allows us to formulate a theory whereby law is a medium – if not key then at least a significant one – in Russia’s strategy to regain her standing as a great State. While, from a Russian perspective, that standing must be won back in the eyes of the world,7 she must first, and more modestly, target those countries with which she has shared part of her history: the ‘near-abroad.’ This seems all the more legitimate as emergence must first be understood from an extrinsic point of view, in relation to otherness, and is consequently characterized by its relativity and contingency. Russia’s use of the law as an instrument to support its strategy of power vis-àvis third parties is tricky. A State’s normative influence ought, logically, to be limited to that of its general influence and / or its history, which would have made it an example to be followed.8 The principle of legal territoriality would thus counter more direct, more restrictive influence such as that of territorial expansion by annexation. Nevertheless, we know that the rationae loci limitations of law to the national territory can be given a broad interpretation as is demonstrated, for instance, by criminal law9 or competition law.10 Furthermore, this strategy of power via the law is frequently employed and is not the preserve of Russia; it concerns the European Union most of all. Cut off from those attributes associated with hard power,11 the EU is often qualified as a ‘soft power’12 or a ‘normative power.’13 It is true that the Union has developed 7

 This is the thinking behind the rise of the BRICS group, so ardently desired by Russia. So much so, in fact, that the Russian Foreign Ministry – more specifically its National Committee for Research on BRICS – has created the BRICS Bulletin, published monthly.

8

 On the idea of constitutional model, cf. Marie-Claire Ponthoreau, Droit(s) constitutionnel(s) comparé(s) 187 f. (Economica 2010).

9

 Cf. situations of passive criminal jurisdiction, even the (controversial) cases of universal jurisdiction and in particular the Yerodia case (Case Concerning the Arrest Warrant (Democratic Republic of the Congo v. Belg.), 2000 I.C.J. 1 (Feb. 14), available at (accessed Mar. 6, 2015)).

10

 Cf. European Union law since, in particular, the renowned Pâte de bois decision and the theory of anti-competitive effects (Case 129/85, Ahlström Osakeyhtiö and others v. Commission of the European Communities, 1988 E.C.R. 5193).

11

 One could never tire of re-reading the partial, biased and approximate analyses by R. Kagan (Robert Kagan, La puissance et la faiblesse (Plon 2003)). The more one reads him, the more one gets the impression that the desire for peace is understood as an admission – or worse, an intention – of weakness.

12

 European institutions sometimes refer to this explicitly, not to characterize the nature of European power but rather in relation to its specific strategy in the cultural sphere (cf. Promoting Cultural and Creative Sectors for Growth and Jobs in the EU, COM(2012) 537 final, at (accessed Mar. 6, 2015)). This intention to bolster the soft-power dimension is a desire on the part of the European Parliament (cf. European Parliament Resolution of 19 February 2009 on the Role of NATO in the Security Architecture of the EU (2008/2197(INI)), ¶ 19, 2010 O.J. (C 76 E) 69, 73; European Parliament Resolution of 7 July 2011 on EU External Policies in Favour of Democratisation (2011/2032(INI)), ¶ 3, (accessed Mar. 6, 2015).

13

 Hedley Bull, Civilian Power Europe: A Contradiction in Terms?, 21(2) Journal of Common Market Studies (1982) doi:10.1111/j.1468-5965.1982.tb00866.x; Tuomas Forsberg, Normative Power Europe,

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a real strategy for exporting its own norms, a deliberate strategy which is now an integral part of its identity on the international stage. The strategy has taken various courses / paths, giving priority to the conventional route,14 but without excluding unilateralism.15 In a different way, and in a separate historical context, France has also played the normative influence (even normative expansion) card: first, and almost naturally, owing to her colonial past; secondly, and more deliberately, in trying to safeguard the achievements of that same colonial past. Russia’s position is more particular: not because Russia is particular by her very essence (which she is just as much as other States) but rather because her history, following the collapse of the Soviet Union, has led her to a different conception of the techniques and purpose of normative influence. Indeed, that normative influence emerged only belatedly for two reasons. On the one hand, the difficulties that Russia faced were so serious and extensive that she could not afford the luxury of developing a normative influence strategy on a par with that of the European Union.16 On the other hand, Russia had initially given priority to those instruments related to hard power rather than soft power in order to rebuild her power. Russia has therefore only very gradually added legal influence to her hard power techniques. Once Again: A Conceptual Analysis of an Ideal Type, 49(6) Journal of Common Market Studies (2011) doi:10.1111/j.1468-5965.2011.02194.x; Ian Manners, Normative Power in Europe: A Contradiction in Terms?, 40(2) Journal of Common Market Studies (2002) doi:10.1111/1468-5965.00353. For Manners, such normative power consists in having the ability to shape what is normal and what is not. It is therefore a broad conception of the notion and the author therefore does not merely concern himself with the promotion of norms but also with ‘normative ways.’ 14

 The Union’s use of the well-known conditionality clauses in its association agreements is one of the most striking examples. Add to this the many European requirements imposed on candidate States so that the latter will incorporate all secondary legislation into their own national law prior to their accession to the Union. The ENP is yet another example of this normative power formalised in ‘para-conventional’ instruments. Finally, mention must be made of the Union’s activities in the field of private international law. Thus, to illustrate, the 1968 Brussels Convention, agreed / ratified by all Member States and relative to judicial jurisdiction and the enforcement of decisions in civil and commercial matter, was adopted and ‘communitarised’ by the Brussels I Regulations 2000. The 2007 Lugano Convention adopted and extended the content of the Brussels I Regulations to non-Member States, particularly those in the EEE. Generally, and for a transversal and thorough approach, cf. Cécile Rapoport, Les partenariats entre l’Union européenne et les États tiers européens (Bruylant 2011).

15

 The Union’s unilateral normative expansionism can be seen particularly clearly in competition law. It must be added that, in aviation matters, the Union’s unilateral activism is just as abundant. Examples include Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 Amending Directive 2003/87/EC So As to Include Aviation Activities in the Scheme for Greenhouse Gas Emission Allowance Trading within the Community, 2009 O.J. (L 8) 3, the full effects of which were deployed on January 1, 2012, and included aviation in the Community’s scheme for greenhouse gas emission allowance trading. This decision was heavily criticised by the United States and China, the latter even threatening to reduce the number of orders it had with Airbus. For a more detailed discussion on this point, cf. Vincent Correia, L’Union européenne et l’ordre international de l’aviation civile 891 f. (Bruylant 2012).

16

 It first had to guarantee its own domestic normative coherence. The attitude of the seething Tatarstan in the 1990s, and Vladimir Putin’s rhetoric on the ‘vertical power structure’ and the ‘dictatorship of the law’ are the most meaningful examples.

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As with any soft power process, normative influence (which, by its very nature, is difficult to grasp) is resistant to any legal approach. An attempt can, however, be made at a definition. We may consider that it is the normative activity of a subject of international law that results, wittingly or unwittingly, in another subject of international law amending its national law in a specific sense. Admittedly, this deliberately broad definition does not challenge / call into question its nature, which is diffuse to say the least. This is no handicap in reality, as it allows us to understand the range of legal techniques that Russia has employed, one of the purposes of which would be to rebuild / regain her power. Indeed, such normative influence is not a monolithic block, but rather comprises three dimensions that are incremental: the Soviet normative legacy, normative convergence and normative expansion. First of all, the legacy is not, properly speaking, the influence of Russian law as it is only the result of the history and collapse of the Soviet Union. This does not mean to say, however, that the latter is part of the strategy of normative influence insofar as, if a legacy can be squandered, everything may also be done in order to safeguard it by means of proper management – even by due diligence. Such a legacy thus loses some its passive nature and a subjective dimension tinged with voluntarism is included therein. Secondly, normative convergence is the result of a process of normative interaction between legal systems based on shared values and / or a shared history. The convergence goes beyond pure national voluntarism and is a part of a normative network which, systemically or protosystemically and to some extent, objectivizes it. Consequently, fitting normative convergence into a national strategy to restore power – a purely voluntarist action by definition – may seem specious. Yet again, however, this is not to be excluded immediately, although it is true that the convergence supposes that some impetus will be given at a particular point so that the systemic drive towards convergence can begin and, thereafter, be maintained. It is to that extent that the phenomenon of normative convergence, leading to a kind of normative alignment, may fall within the scope of a Russian strategy of legal influence. Third and finally, the normative expansion must be considered as the most complete form of normative influence. It consists in the imposition, by means of more or less explicit coercion, of a legal rule on third parties. While it is true that, formally, this normative expansion is not systematically unilateral,17 its defining characteristic is coercion. Russia’s use of this superior form of legal influence, as a complement to her hard power, is more recent. In light of the interest this technique holds for the Russian authorities, it is likely that they will resort to it more and more frequently in future. These three techniques constitute a scale of normative influence and Russia has implemented them only very gradually. In this respect, it is striking to note that their use exactly mirrors Russia’s growing power and her aspirations to become s a great State once again. In other words, in the early 1990 , she could only settle for 17

 Cf. the conditionality clauses inserted into agreements with the European Union.

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managing the Soviet legacy, in conjunction with former Soviet states. In the late 1990s and early 2000s, she strove to be the pulse of a normative convergence between those countries, particularly by using the Commonwealth of Independent States [hereinafter CIS] as leverage. Since that time, Russia has not hesitated in exporting, much more directly and conspicuously, her own law to countries ‘near-abroad,’ relying especially on the Eurasian Economic Community [hereinafter EurAsEC]. It should be pointed out that recourse to those three techniques has come about in stages and is not exclusive in the sense that one would preclude the others. In other words, Russia now combines these three forms of legal influence and uses them in a complementary manner within one strategy while, if not conscious, is at least under construction. It must be said that the field covered by the purpose of this research is particularly vast and, so to speak, out of proportion. The analyses put forward will therefore necessarily be partial. Furthermore, it is essential, in order to avoid any scientific pitfalls, to establish the geographical perimeter of the research. Thus, Russia’s normative influence vis à vis Belarus and Ukraine alone will be examined here. This choice is based on three considerations. Firstly, the two latter countries are close enough to justify a study that brings them together: with their admittedly Soviet past, they are also both parties to the CIS18 and the free-trade area agreed on October 18, 2011.19 Secondly, Ukraine and Belarus are different enough for them to be the subject of a shared analysis: their political regimes have followed separate trajectories and their respective memberships of institutionalised co-operation zones along with Russia are not exactly identical.20 Finally, these two countries form 18

 The CIS Treaty was ratified by the Decree of Belarus Supreme Council on 10 December 1991 (Постановление Верховного Совета Республики Беларусь от 10 декабря 1991 г. № 1296-XII «О ратификации Соглашения об образовании Содружества Независимых Государств» [Postanovlenie Verkhovnogo Soveta Respubliki Belarus’ ot 10 dekabrya 1991 g. No. 1296-XII ‘O ratifikatsii Soglasheniya ob obrazovanii Sodruzhestva Nezavisimykh Gosudarstv’ [Decree of Belarus Supreme Council No. 1296-XII of December 10, 1991, ‘On Ratification of the Agreement on Creation of Commonwealth of Sovereign Republics’]]), and on the same date by the Decree of Verkhovna Rada of Ukraine (Постановление Верховной Рады Украины от 10 декабря 1991 г. № 1958-XII «О ратификации Соглашения о создании Содружества Независимых Государств» [Postanovlenie Verhovnoi Rady Ukrainy ot 10 dekabrya 1991 g. No. 1958-XII ‘O ratifikatsii Soglasheniya o sozdanii Sodruzhestva Nezavisimykh Gosudarstv’ [Decree of Verkhovna Rada of Ukraine No. 1958-XII of December 10, 1991, ‘On Ratification of the Agreement on Creation of Commonwealth of Sovereign Republics’]]).

19

 This Treaty, signed in Saint Petersburg on October 18, 2001, was officially ratified by Belarus on May 26, 2012 [Закон Республики Беларусь от 26 мая 2012 № 381-З «О ратификации Договора о зоне свободной торговли» [Zakon Respubliki Belarus’ ot 26 maya 2012 g. No. 381-Z ‘O ratifikatsii Dogovora o zone svobodnoi torgovli’ [Law of the Republic of Belarus No. 381-Z of May 26, 2012, ‘On Ratification of the Treaty on Creation of the Free-Trade Area’]]) and by Ukraine on August 9, 2012 (Закон Украины от 9 августа 2012 г. № 5193-VI «О ратификации Договора о зоне свободной торговли» [Zakon Ukrainy ot 9 avgusta 2012 g. No. 5193-VI ‘O ratifikatsii Dogovora o zone svobodnoi torgovli’ [Law of Ukraine No. 5193-VI of August 9, 2012, ‘On Ratification of the Treaty on Creation of the Free-Trade Area’]]).

20

 Ukraine only has observer status in EurAsEC and is therefore not part of the Customs Union.

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part of Russian’s western border / frontier, a ‘shared neighbourhood area’ with the European Union.21 All efforts will thus be made, in a properly legal standpoint, to reinstate this progressiveness and the combination of normative influence techniques. On a limited scale, these started out as the straightforward good management of the normative legacy (sec. 2), then focused on the promotion of normative convergence (sec. 3) before resulting in the current boost being given to a true normative expansion (sec. 4). 2. The Proper Management of the Normative Legacy The collapse of the Soviet Union, independent of the considerable human, political and constitutional difficulties that ensued, was a period of transition. That transition was not only economic and political, but also legal. Indeed, it was impossible, in such short timeframes, to re-draft all the laws governing legal life and transactions. For many years, the law applicable was therefore that of the former republics22 and it is only recently that the codification process has at least partly reached its conclusion.23 In such circumstances, it cannot be said that this transitional phase constitutes the expression of Russia’s normative influence over Ukrainian or Belarusian law, but must instead be qualified simply as a legacy. Nevertheless, over the course of the transition period, Russian actively set about to preserve that legacy. The aim – to protect the interests of the Russian Federation in countries ‘near-abroad’ – was an eminently strategic one and quite logically took concrete form through the medium of the law. It is therefore no longer a matter for Ukraine and Belarus of simply being the beneficiaries of such a legacy; it falls instead to Russian to make it bear fruit and incorporate a degree of voluntarism therein. The latter is expressed, most particularly, in an increase in the number of legal acts that are extraterritorial in scope, with regard to two sections of the population: civilian (sec. 2.1) and military (sec. 2.2). 2.1. Preserving the Civil Legacy The dislocation of the Soviet Union was the underlying cause of an unprecedented diaspora. Many Russians now found themselves in independent and third-party States that were legally separate from the Fatherland. Russia was thus deprived of 21

 Cf. Hugo Flavier, Le voisinage commun de l’Union européenne et de la Russie, in L’Europe face au monde 199 f. (Loïc Grard, éd.) (Pedone 2013).

22

 For a transversal and constitutional analysis of this transition, cf. Marie-Elisabeth Baudoin, Justice constitutionnelle et État post-soviétique 115 f. (PU Clermont-Ferrand 2005).

23

 The Russian Civil Code was only completed in 2006, the Ukrainian Civil Code – in 2003, the Belarusian Civil Code – in 1998. The Ukrainian Criminal Code was overhauled in 2001, the Russian Criminal Code – in 1996, and the Belarusian Criminal Code – in 1999.

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a significant part of a population that had a ‘natural’ vocation to reside within her vast territory. Not without a certain political dexterity, Russia made an asset of what could otherwise have been an impediment. On May 24, 1999, completing a process that had begun in 1994, the Federal Law was passed.24 The fundamentally extraterritorial nature of the Federal Law No. 99-FZ emerges not only in the scope of its application, but also in the concrete action envisaged therein. As regards the scope of application of the Federal Law No. 99-FZ, we cannot help but notice the reference made to the concept of ‘compatriot,’ previously unseen amongst the ranks of those usually employed.25 Intuitively, we quickly perceive the opportunity presented by the choice of such an obscure term as a condition for the applicability of the Federal Law No. 99-FZ. That intuition is confirmed by the definition it provides for Russian ‘compatriots.’ Under the terms of Art. 1, these are ‘persons born in a State and residing or having resided in the same and who have the shared features of language, history, cultural heritage, traditions and customs, and equally the direct descendants of such persons.’ It goes on to identify who such ‘compatriots from overseas’ are. A compatriot from overseas is ‘a citizen of the Russian Federation, residing permanently beyond the borders of the Russian Federation,’ but also ‘persons and their descendants residing beyond the borders of the Russian Federation and who maintain, as a general rule, relationships with populations residing historically within the territory of the Russian Federation, together with persons who have freely made the choice to have spiritual, cultural and legal ties with the Russian Federation.’ It also concerns ‘persons whose direct kin lived within the territory of the Russian Federation’ and ‘in particular: 24

 Federal Law No. 99-FZ of May 24, 1999, ‘On the National Policy of the Russian Federation in Her Relations with Compatriots from Overseas’ [Федеральный закон от 24 мая 1999  г. №  99-ФЗ «О  государственной политике Российской Федерации в  отношении соотечественников за рубежом» [Federal’nyi zakon ot 24 maya 1999 g. No. 99-FZ ‘O gosudarstvennoi politike Rossiiskoi Federatsii v otnoshenii sootechestvennikov za rubezhom’]] [hereinafter Federal Law No. 99-FZ]. It is true that the latter may be seen as coming too late. The truth is that it is the result of a much older process; owing to the internal political and economic difficulties that Russia faced at the time, the s 1990 were not propitious for intense legislative activity. The Federal Law No. 99-FZ was adopted following Government Decree No. 590 of May 17, 1996, ‘On the Programme of Measures Aimed at Supporting Compatriots Overseas’ [Постановление Правительства РФ от 17 мая 1996 г. № 590 «О программе мер по поддержке соотечественников за рубежом» [Postanovlenie Pravitel’stva RF ot 17 maya 1996 No. 590 ‘O programme mer po podderzhke sootechestvennikov za rubezhom’]], which itself was passed on the basis of the Russian Federation Presidential Decree (the famous edicts) No. 1681 of August 11, 1994, ‘On the Fundamental Guidelines for the Russian Federation’s National Policy on Compatriots Living Overseas’ [Указ Президента РФ от 11 августа 1994 г. № 1681 «Об основных направлениях государственной политики Российской Федерации в отношении соотечественников, проживающих за рубежом» [Ukaz Prezidenta RF ot 11 avgusta 1994 g. No. 1681 ‘Ob osnovnykh napravleniyakh gosudarstvennoi politiki Rossiiskoi Federatsii v otnoshenii sootechestvennikov, prozhivayushchikh za rubezhom’]].

25

 In this area, the normative texts concern ‘nationals,’ or ‘citizens.’ On the exploration of the concept of ‘quasi-nationals,’ cf. Sébastien Touzé, La «quasi nationalité», réflexions générales sur une notion hybride, 115(1) Revue générale de droit international public (2011).

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persons who were citizens of the USSR, residing in a State that was a member of the USSR and who have obtained citizenship of those States or have become stateless persons; emigrants from the Russian State, the Russian Republic of the Soviet Union or the Russian Federation who held the corresponding citizenship and who have become citizens of a foreign State or stateless persons.’ The choice of these terms on the part of the Russian legislature go beyond mere reference to legal standards offering a broad margin of interpretation; these are the very haziest terms and concepts that give an almost limitless scope to the Federal Law No. 99-FZ. In this same vein of extraterritoriality, the concrete action envisaged by the federal legislature are no less instructive as to Russia’s ambitions.26 Admittedly, some provisions may be viewed as worthy phrases that do not constitute any kind of undertaking for their author.27 There are, however, others that appear far more intrusive.28 Such is the case, in particular, for Art. 5(2), which provides substantively that ‘compatriots’ have the right to establish ‘cultural and national autonomies,’ together with ‘mass media and participate in the activities of the same.’ The amendment brought on July 23, 2010, slightly extended the boundaries of Art. 5: ‘compatriots’ now have the right to use ‘the Russian language and the mother-tongues of the peoples of the Russian Federation in order to develop their spiritual and intellectual potential,’ and to establish ‘religious organisations of compatriots.’29 Admittedly, it goes without saying that a State may not unilaterally impose obligations on third parties by means of a ‘heteronormative’ act30 and that, therefore, the legal consequences of such extraterritoriality must be 26

 Furthermore, these feature very clearly in the Federal Law No. 99-FZ. We may cite one example, Art. 14(2), under which ‘[t]he defence of the fundamental rights and freedoms of man and the citizen concerning compatriots forms an indefeasible part of Russian foreign policy.’ The legislature also provided that compatriots have the right to ‘freely choose, protect and develop their identity, to support and develop their spiritual and intellectual potential.’

27

 In particular, Art. 5(2) under which, particularly ‘[t]he national policy of the Russian Federation with regard to compatriots is founded on the principles of: the inalienability and accession of all, from birth, to the fundamental rights and freedoms of man and the citizen; the duty for all States to respect the general principles and norms of international law in the full respect of the principle of non-interference in internal affairs . . .’

28

 Although it is provided, under the Federal Law No. 99-FZ, ‘the duty for all States to respect the general principles and norms of international law in the full respect of the principle of non-interference in internal affairs’ (Art. 5(2)).

29

 As amended by the Federal Law No. 179-FZ of July 23, 2010 [Федеральный закон от 23 июля 2010 г. № 179-ФЗ «О внесении изменений в Федеральный закон «О государственной политике Российской Федерации в отношении соотечественников за рубежом»» [Federal’nyi zakon ot 23 iyulya 2010 g. No. 179-FZ ‘O vnesenii izmenenii v Federal’nyi zakon “O gosudarstvennoi politike Rossiiskoi Federatsii v otnoshenii sootechestvennikov za rubezhom”’]].

30

 Patrick Daillier et al., Droit international public ¶ 240 (8e éd., LGDJ 2009).

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put into context. However, such a statute is never neutral as, on the one hand, it could have triggered a dispute31 and, on the other hand, because Russia’s support for her compatriots was accompanied by a financial package. The Russian Federation’s financial support for initiatives launched by her ‘compatriots’ had already been hinted at when the Federal Law No. 99-FZ was adopted. Provision had been made, in particular, for support to be given for the protection of their fundamental rights32 and ‘in the economic and social sphere.’33 Moreover, humanitarian aid in the event of ‘exceptional circumstances,’34 specific assistance for ‘socially vulnerable categories’ or even incentives for commercial co-operation through the creation, for instance, of joint commercial ventures.35 Concrete financial assistance nevertheless took time to achieve a degree of effectiveness. It took the Presidential Decree No. 678 of May 25, 2011, to institute a ‘fund for the support and protection of the rights of compatriots living overseas.’ This scheme, which was mysteriously financed,36 entered its operational phase on January 1, 2012; its aim is to support groups protecting Russian compatriots by providing, for example, legal advice or other assistance connected to the protection of the Russian language37 or in educational matters.38 The implementation of such a structure is indeed a sign that the Kremlin now has the means to fulfil its aims and wishes make the protection of its ‘compatriots’ a weapon of foreign policy. Purely from a strategic point of view, it would be wrong not to do so. This unilateral activism has been extended in part extended by conventions. Russia concluded a series of agreements intended to settle the issue of the status of its nationals living overseas. Specific agreements were thus concluded with Belarus39 31

 On the legal characterisation of the triggering of a dispute, cf. Carlo Santulli, Droit du contentieux international 203 f. (Montchrestien 2005).

32

 It is Art. 15 ‘Support for Compatriots in the Field of the Fundamental Rights and Freedoms of Man and the Citizen.’

33

 This is Art. 16.

34

 These ‘exceptional circumstances’ should be understood as a reference to natural or human disasters and not as the notion of ‘exceptional circumstances’ that is so well known, particularly in French law.

35

 This is Art. 16(1).

36

 The Decree provides that the fund is supplemented, quite obviously, firstly by the federal budget but also, more surprisingly, by gifts and bequests.

37

 In this respect, the Baltic States are the subject of particular attention which appears quite clearly on the fund’s website . The creation of the website is itself a sign of the importance that Russia now attaches to this policy.

38

 Cf.,e.g., the willingness to participate in the ‘Young Leaders’ School’ in Moscow and to recruit 60 students in former Soviet states ().

39

 Cf., e.g., the Treaty on friendship, good neighbourliness and co-operation of February 21, 1995 [Договор о дружбе, добрососедстве и сотрудничестве между Российской Федерацией и Республикой Беларусь от 21 февраля 1995 г. [Dogovor o druzhbe, dobrososedstve i sotrudnichestve mezhdu Rossiiskoi Federatsiei i Respublikoi Belarus’ ot 21 fevralya 1995 g.]], or even the Treaty of December 25, 1998, ‘On

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and Ukraine,40 and posit the principles of national treatment, non-discrimination and the protection of minorities. While these agreements naturally could not enshrine the concept of ‘compatriot’ (which would not be readily accepted by third parties), they do give concrete expression in Belarusian and Ukrainian law of Russia’s intention to protect her nationals. The use of conventions is, moreover, a special and indispensable instrument for matters relating to the status of Russian troops on Ukrainian and Belarusian territory. 2.2. Preserving the Military Legacy Following the collapse of the Soviet Union, one of the major issues for Russia was how to maintain her military bases in those countries that had become thirdparty states, and particularly in Belarus and Ukraine. For the latter, the Russian base at Sebastopol drew particular attention. Admittedly, the return of the Crimea to the Russian Federation means that the legal issues surrounding the Sebastopol base no longer reflect positive law. Those issues are no less interesting, not only from a historical but also from a scientific point of view for the purpose of this article. Russian soldiers based at Sebastopol benefited from a number of guarantees provided under the Agreement of May 28, 1997,41 initially concluded for a 20-year term42 and then extended for another 25 years, as of May 28, 2017, by a further agreement of April 21, 2010.43 The initial 1997 Agreement contained clauses establishing criminal jurisdiction rules in the event of criminal offences committed by Russian soldiers on Ukrainian soil. It provided under Art. 19(1) that, in principle, in the event of a crime committed by a Russian soldier or by a member of his family, the Ukrainian courts had jurisdiction to try the case. However, Art. 19(2) added a series of exceptions to the Equal Rights of Citizens’ [Договор от 25 декабря 1998 г. «О равных правах граждан» [Dogovor ot 25 dekabrya 1998 ‘O ravnykh pravakh grazhdan’]] (specifically Art. 17 f.), which is itself based on the Treaty on the Union of Belarus and Russia [Договор о союзе Беларуси и России [Dogovor o soyuze Belarusi i Rossii]], the effects of which are still virtual. Equally, cf. the Treaty of April 28, 1998, ‘On the Legal Status of Citizens of a State Residing Continuously within the Territory of Another State’ [Договор от 28 апреля 1998 г. «О правовом статусе граждан одного государства, постоянно проживающих на территории другого государства» [Dogovor ot 28 aprelya 1998 g. ‘O pravovom statuse grazhdan odnogo gosudarstva, postoyanno prozhivayushchikh na territorii drugogo gosudarstva’]] concluded within the framework of the CIS. 40

 Cf. the Treaty of May 21, 1997, ‘On Friendship, Co-operation and Partnership’ [Договор от 31 мая 1997 г. «O дружбе, сотрудничестве и партнерстве» [Dogovor ot 31 maya 1997 g. ‘O druzhbe, sotrudnichestve i partnerstve’]] (specifically Art. 10 f.).

41

 This is the Agreement between the Russian Federation and Ukraine on the status and living conditions of the Russian Federation’s Black Sea fleet in Ukrainian territory [Соглашение между Российской Федерацией и Украиной о статусе и условиях пребывания Черноморского флота Российской Федерации на территории Украины [Soglashenie mezhdu Rossiiskoi Federatsiei i Ukrainoi o statuse i usloviyakh prebyvaniya Chernomorskogo flota Rossiiskoi Federatsii na territorii Ukrainy]].

42

 Article 25.

43

 It provides for rent of US $ 100 million as well as a preferential rate on gas (Art. 2 of the Agreement of April 21, 2010).

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the automatic exercise of Ukrainian jurisdiction, featuring (fairly typically) those crimes directly committed by Russian soldiers in deployment zones or crimes against the Russian State. In an equally classic sense, the Agreement also provided that, in cases where Russia wishes to exercise jurisdiction, she could proceed with a repatriation request, it being understood that the Ukrainian authorities were to make decisions ‘humanely and without delay.’44 Conversely, and more unusually, the scope of application of Russia’s active criminal jurisdiction related not only to acts committed by members of the military per se, but also ‘members of their families.’ If we refer to Art. 2(5) of the same Agreement, these are defined, broadly speaking, as ‘the partners, children, other next of kin living continuously with them, or their dependents.’ The scope of application rationae personae therefore proved, in fine, to be particularly broad as it was not limited to soldiers in active service or located on the Sebastopol base, but rather concerned an indeterminate number of persons. All in all, the scope of application of the treaty fluctuated in relation to decisions, not of the contracting parties, but rather those arising from the personal relationships that Russian soldiers had with more or less distant relatives. It was therefore not impossible that where, by chance, the great aunt of a Russian soldier in Sebastopol (with whom she lived) had murdered a person in Kiev, Russia would submit a repatriation request to the Ukrainian authorities and that the latter should give a decision ‘humanely and without delay.’ For the sake of comparison, it will be noted that the treaties on the status of French soldiers stationed in a third-party State would not benefit from such a broad scope of application rationae personae.45 The Agreement concluded with Belarus on January 6, 1995, on the status of Russian military personnel on Belarusian soil is palpably similar.46 The notion of 44

 Article 19(3).

45

 Cf. Art. 13 of the Agreement concluded with Morocco on the status of forces of May 16, 2005 [Décret n° 2009-428 du 16 avril 2009 portant publication de l’accord entre le Gouvernement de la République française et le Gouvernement du Royaume du Maroc relatif au statut de leurs forces, signé à Rabat le 16 mai 2005] (Decree No. 2009-428 of April 16, 2009, J.O., April 19, 2009, p. 6748); Art. 16 of the Treaty on co-operation in defence matters concluded with Djibouti of December 21, 2011 (ratification bill No. 425 of November 21, 2012, put before the National Assembly); Art. 15 of the Treaty on partnership in defence matters concluded with the Ivory Coast of January 26, 2012 (ratification bill No. 426 of November 21, 2012, put before the National Assembly). The notion of dependent is generally defined as ‘the partner or any other person living in a conjugal relationship, in accordance with the legislation of the host State, with a member of staff, together with their underage children’ (cf. the Agreement with Cameroon instituting a defence partnership of May 21, 2009 [Décret n° 2012-989 du 23 août 2012 portant publication de l’accord entre le Gouvernement de la République française et le Gouvernement de la République du Cameroun instituant un partenariat de défense (ensemble une annexe), signé à Yaoundé le 21 mai 2009] (Decree No. 2012-989 of August 23, 2012, J.O., August 25, 2012, p. 13800)).

46

 This is, more exactly, the Agreement between the Russian Federation and the Republic of Belarus on issues of jurisdiction and mutual judicial co-operation in relation to the temporary residence of military formations of strategic forces of the Russian Federation on the territory of the Republic of Belarus of November 27, 1995 [Соглашение между Российской Федерацией и Республикой Беларусь

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‘family member’ is almost identical, except that it excludes those individuals who hold Belarusian nationality. Conversely, the extent of Russian jurisdiction in criminal matters was circumscribed with a little more precision. Russian criminal jurisdiction shall only apply to offences committed by members of a Russian soldier’s family where such individuals are ‘in the deployment zones of . . . [military] formations.’47 All in all, in the Agreement concluded with Belarus, the scope of application rationae personae is limited by a stricter framework from a rationae loci point of view. Consequently, it would appear that the extension of jurisdiction permitted under the terms of the Agreement remains more favourable to Russia in the case of Ukraine than with Belarus. The latter therefore succeeded, in part, to contain the extraterritorial reach of Russian jurisdiction in criminal matters. Russia’s interests, i.e. Russian presence in Belarus and Ukraine inherited from the Soviet Union, have thus been protected in part thanks to the extraterritorial scope of Russian or international norms relative thereto. This aspect of those norms is, in principle, little more than one of the most common legal techniques. We must therefore consider that Russian normative influence in this particular field remains marginal as Russia has contented herself with extending a factual situation brought about by the collapse of the Soviet Union. In that sense, it is only the minimum degree of her normative influence. This is likely the reason why Russia quickly adopted another, more effective, technique, whereby Russia becomes the instigator of normative convergence through the promotion of normative alignment. 3. The Promotion of Normative Convergence The phenomenon of normative convergence, which is especially clear and often studied within the European Union, is not the preserve of Western Europe. It is a global phenomenon that affects Russia, which also plays an active part therein. Experience tells us that this movement is all the more dynamic in that it takes place within an international organization or, at the very least, within institutionalized relationships. Thus Europe – especially over the course of the 1990s but less so now, in reality – played a significant role in promoting this convergence, which has greatly permeated some laws in Russia, Belarus and Ukraine.48 From a slightly о сотрудничестве и взаимодействии в обеспечении безопасности воинских формирований Российской Федерации, временно размещенных на территории Республики Беларусь, и лиц, входящих в их состав, от 27 ноября 1995 г. [Soglashenie mezhdu Rossiiskoi Federatsiei i Respublikoi Belarus’ o sotrudnichestve i vzaimodeistvii v obespechenii bezopasnosti voinskikh formirovanii Rossiiskoi Federatsii, vremenno razmeshchennykh na territorii Respubliki Belarus’, i lits, vkhodyashchikh v ikh sostav, ot 27 noyabrya 1995 g.]]. 47

 Article 5(1) of the Agreement.

48

 This is the case, for example, for laws, the titles of which are absolutely identical – ‘On the Freedom of Conscience and Religious Organisations:’ in Ukraine (Law of Ukraine No. 987-XII of April 23, 1991 [Закон України от 23 апреля 1991 г. № 987-XII «Про свободу совісті та релігійні організації» [Zakon Ukrayiny

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different standpoint, the CIS has also served as an institutionalised framework for the concertation and promotion of normative convergence (sec. 3.1). Except that the CIS has not been the setting for mutual and egalitarian / equal convergence where each State would be an active participant on the same footing as the others. Russia has also played a key role in this convergence, so much so that the convergence is tantamount to an alignment, where the CIS is in reality nothing more than a lever of influence for Russia in ensuring the projection of her law to other CIS Member States (sec. 3.2). 3.1. The CIS – a Framework for Convergence In addition to the fact that it allowed the relatively peaceful secession of the former Republics, the CIS was instituted for the purposes of constructing normative convergence. Founded on (initially) common principles, its objectives are varied and aim, particularly through the conclusion of international agreements, to develop co-operation in fields such as the economy, education, health, the environment,49 and security.50 In addition, there is a duty to co-operate and co-ordinate amongst the States Parties, for instance in immigration, customs duties and organised crime.51 This drive towards integration was favoured by the highly progressive52 creation of vid 23 kvitnya 1991 r. No. 987-XII ‘Pro svobodu sovіstі ta relіgіinі organіzatsіyi’]]); Belarus (Law of the Republic of Belarus No. 2054-XІІ of December 17, 1992) [Закон Республики Беларусь от 17 декабря 1992 г. № 2054-XII «О свободе совести и религиозных организациях» [Zakon Respubliki Belarus’ ot 17 dekabrya 1992 g. No. 2054-XII ‘O svobode sovesti i religioznykh organizatsiyakh’]]); Russia (Federal Law No. 125-FZ of September 26, 1997 [Федеральный закон от 26 сентября 1997 г. № 125-ФЗ «О свободе совести и о религиозных объединениях» [Federal’nyi zakon ot 26 sentyabrya 1997 g. No. 125-FZ ‘O svobode sovesti i o religioznykh ob’edineniyakh’]]). Once again, we can see that the Russian legislative process was slower which is essentially due to the political instability of the 1990s. For a more detailed study of this law, cf. Olga Gille-Belova, La situation des minorités religieuses dans la Russie contemporaine, in L’Europe des religions (Hugo Flavier & Jean-Pierre Moisset, éds.) 121 f. (Pedone 2013). This is also the case for laws on the protection of national minorities: in Ukraine (Law No. 2494-ХII of June 25, 1992 [Закон Украины от 5 июня 1992 № 2494-XII «O национальных меньшинствах в Украине» [Zakon Ukrainy ot 5 iyunya 1992 g. No. 2494-XII ‘O natsional’nykh men’shinstvakh v Ukraine’]]); Belarus (Law of the Republic of Belarus No. 1926-XII of November 11, 1992 [Закон Республики Беларусь от 11 ноября 1992 г. № 1926-XII «О национальных меньшинствах в Республике Беларусь» [Zakon Respubliki Belarus’ ot 11 noyabrya 1992 g. No. 1926-XII ‘O natsional’nykh men’shinstvakh v Respublike Belarus’’]]); in Russia where there is a broader Federal Law ‘On Cultural and National Autonomy’ (Federal Law No. 74-FZ of June 17, 1996 [Федеральный закон от 17 июня 1996 г. № 74-ФЗ «О национально-культурной автономии» [Federal’nyi zakon ot 17 iyunya 1996 g. No. 74-FZ ‘O natsional’no-kul’turnoi avtonomii’]]). 49

 Article 4 of the Agreement establishing the Commonwealth of Independent States.

50

 Article 6 of the Agreement establishing the Commonwealth of Independent States. It will be noted that, surprisingly Art. 6 also provides that ‘[t]he Parties shall respect the wish of each to secure the status of nuclear-free zone and that of neutral State.’

51

 Article 7 of the Agreement establishing the Commonwealth of Independent States.

52

 While the issue of the status of CIS bodies has been established since 1993, in the Agreement titled ‘Charter of the Commonwealth of Independent States’ of January 22, 1993 [Устав Содружества Независимых Государств от 22 января 1993 г. [Ustav Sodruzhestva Nezavisimykh Gosudarstv ot 22

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shared institutions with powers to take unilateral action;53 so much so that, in 1998, the Economic Court of the CIS considered that it was a fully-fledged international organisation.54 Amidst the profusion of institutions and agreements resulting from the CIS, the Interparliamentary Assembly of States Parties to the CIS played an often forgotten part in the construction a common normative platform. This was formally established by the Agreement between the Supreme Soviets of the States Parties to the CIS on March 27, 1992. Composed of delegations from the respective parliamentary assemblies of the Member States, it is only a consultative body; surprisingly for an assembly, it decides ‘by consensus.’55 In particular, it is competent yanvarya 1993 g.]] [hereinafter CIS Charter], it took until October 9, 2009, for the decision-making process to be specified in the Decision of the Council of Heads of State of the CIS October 9, 2009, ‘On Procedural Rules of the Council of Heads of State, the Council of Heads of Government, of the Council of Foreign Ministers and of the Economic Council of the Commonwealth of Independent States’ [Решение от 9 октября 2009 г. «O Правилах процедуры Совета глав государств, Совета глав правительств, Совета министров иностранных дел и Экономического совета Содружества Независимых Государств» [Reshenie ot 9 oktyabrya 2009 g. ‘O Pravilakh protsedury Soveta glav gosudarstv, Soveta glav pravitel’stv, Soveta ministrov inostrannykh del i Ekonomicheskogo soveta Sodruzhestva Nezavisimykh Gosudarstv’]] [hereinafter Decision on Procedural Rules]. 53

 More precisely, the Council of Heads of State and the Council of Heads of Government decide by consensus. It is true, however, that the constructive abstentions technique was included (Art. 23 of the CIS Charter and Art. 7(5) of the Decision on Procedural Rules).

54

 Cf. the Consultative Opinion No. 01-1/2-98 of the Economic Court of the CIS of June 23, 1998, on the interpretation of the CIS Charter [Консультативное заключение Экономического Суда СНГ от 23 июня 1998 г. № 01-1/2-98 о толковании Устава Содружества Независимых Государств от 22 января 1993 г. [Konsul’tativnoe zaklyuchenie Ekonomicheskogo Suda SNG ot 23 iyunya 1998 g. No. 01-1/2-98 o tolkovanii Ustava Sodruzhestva Nezavisimykh Gosudarstv ot 22 yanvarya 1993 g.]] which concluded that, considering that the Commonwealth can establish relations with international organisations, it had already concluded treaties with other subjects of international law, that it had adopted unilateral acts ‘in its own right,’ that it has the option of imposing sanctions on its members, the CIS has international legal personality. This position was confirmed by the Decision No. 01-1/110 of February 15, 2010, on the clarification of the Consultative Opinion No. 01-1/2-98 of January 22, 1993 [Определение от 15 февраля 2010 г. № 01-1/1-10 о разъяснении Консультативного заключения Экономического Суда СНГ от 23 июня 1998 г. № 01-1/2-98 о толковании Устава Содружества Независимых Государств от 22 января 1993 г. [Opredelenie ot 15 fevralya 2010 g. o raz’yasnenii Konsul’tativnogo zaklyucheniya Ekonomicheskogo Suda SNG ot 23 iyunya 1998 g. No. 01-1/298 o tolkovanii Ustava Sodruzhestva Nezavisimykh Gosudarstv ot 22 yanvarya 1993 g.]]. In the latter case, the Court reaches the logical conclusion that the CIS may be a party to a multilateral agreement.

55

 Article 7 of the Agreement of March 27, 1992 [Соглашение от 27 марта 1992 «О Межпарламентской Ассамблее государств – участников Содружества Независимых Государств» [Soglashenie ot 27 marta 1992 g. ‘O Mezhparlamentskoi Assamblee gosudarstv – uchastnikov Sodruzhestva Nezavisimykh Gosudarstv’]]. The decision-making process is surprising. It is, to our knowledge, the sole instance where a parliamentary body finds itself under a duty to decide by consensus. This voting system reveals a great deal about the true nature of the Interparliamentary Assembly, which is merely a paraparliamentary extension of the intergovernmental bodies of the CIS. Indeed, consensus implies that the Assembly is not a forum for debate and not, therefore, the political arena understood as being a place of institutionalised confrontation (in this respect, cf. Slobodan Milacic, De l’âge idéologique à l’âge politique. L’Europe postcommuniste vers la démocratie pluraliste (Bruylant 2010)). Furthermore, it is clear that voting by consensus is better adapted to international organisations composed of diplomatic representatives of Member States, not to interparliamentary assemblies. The sole, very

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to discuss economic and social issues, promote parliamentary co-operation, but also to adopt recommendations establishing templates for laws or legal acts relative to issues ‘of common interest to all parties.’56 Despite the lacunae inherent to the status held by that body and its more than limited powers, the Interparliamentary Assembly has done some interesting work which was formerly directed at maintaining a common judicial area but now contributes to the promotion of the normative community. This is how many model codes57 or model laws58 have been adopted, and we might think that these play a part, on their own level, in the construction of a common judicial area, and underline the originality of the convergence phenomenon. Convergence is indeed the result of a process made up of a multitude of national and international acts which lead towards a sort of normative unification. In this sense, convergence is to be found at the mid-point of a normative strategy: while the impetus behind the convergence may appear to be proactive, the effects induced retain a number of objective characteristics, especially where they are implemented in a multilateral framework of institutionalized co-operation which transcends the intentions of one single State. And it appears that the CIS has constitutes a lever of power for Russia which has been extended on a normative level. This convergence, in the specific modest, exception in the CIS can be found in Art. 9(2) of the Regulations on the permanent committees of the Interparliamentary Assembly [Постановление Межпарламентской Ассамблеи государств – участников Содружества Независимых Государств от 23 мая 1993 г. «Об утверждении положения о постоянных комиссиях Межпарламентской Ассамблеи» [Postanovlenie Mezhparlamentskoi Assamblei gosudarstv – uchastnikov Sodruzhestva Nezavisimykh Gosudarstv ot 23 maya 1993 g. ‘Ob utverzhdenii polozheniya o postoyannykh komissiyakh Mezhparlamentskoi Assamblei’]], where it is stated that ‘[t]he decisions of the committees on procedural issues are adopted by simple majority of those participating in the meeting.’ 56

 Article 8.

57

 Cf., e.g., the Model Civil Code (adopted in stages: the first part – on October 29, 1994; the second – on May 13, 1995; the third – on February 17, 1996; amended on June 16, 2003, in respect of intellectual property provisions), the Model Criminal Code (adopted on February 17, 1996), Taxation Code (December 9, 2000), Code on Land Use (adopted December 7, 2002), Information Code (the first part was adopted on November 23, 2012), etc.

58

 The fields are varied. To illustrate, there are the model laws of November 2, 1996, on the fight against criminal organisations [Рекомендательный законодательный акт от 2 ноября 1996 г. «О борьбе с организованной преступностью» [Rekomendatel’nyi zakonodatel’nyi akt ot 2 noyabrya 1996 g. ‘O bor’be s organizovannoi prestupnost'yu’]], and that, of the same date, on physical education and sport [Рекомендательный законодательный акт от 2 ноября 1996 г. «О физической культуре и спорте» [Rekomendatel’nyi zakonodatel'nyi akt ot 2 noyabrya 1996 g. ‘O fizicheskoi kul’ture i sporte’]]. There is also that of February 17, 1996, on joint stock companies [Рекомендательный законодательный акт от 17 февраля 1996 г. «Об акционерных обществах» [Rekomendatel’nyi zakonodatel’nyi akt ot 17 fevralya 1996 g. ‘Ob aktsionernykh obshchestvakh’]]; that of the November 16, 2006, on the Prokuratura [Модельный закон от 16 ноября 2006 г. «O прокуратуре» [Model’nyi zakon ot 16 noyabrya 2006 g. ‘O prokurature’]]; that of November 23, 2012, on rail transport [Модельный закон от 23 ноября 2012 г. «О железнодорожном транспорте» [Model’nyi zakon ot 23 noyabrya 2012 g. ‘O zheleznodorozhnom transporte’]] or even that, of the same date, business confidentiality [Модельный закон от 23 ноября 2012 г. «O коммерческой тайне» [Model’nyi zakon ot 23 noyabrya 2012 g. ‘O kommercheskoi taine’]].

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framework of the CIS, has to be understood as a progressive alignment of Member States on Russian law and not as the result of a series of concerted activities that themselves result, over a period of years, in a common normative platform. 3.2. The CIS – a Lever of Influence Whilst it is true that the CIS is a multilateral framework of co-operation and concertation, the balance of power bears the stamp of inequality. The CIS is not an organisation in which the political balance between Member States is the product of a scholarly weighting between the ‘big’ and the ‘small’ States as is the case with the European Union. This economic and political imbalance, to Russia’s advantage, runs through the CIS as a whole59 and had necessarily to materialise in legal form. This is now Russia has used the CIS as a stepping stone for her own norms towards Belarus and Ukraine. Such normative activism has been particularly significant in the context of the fight against terrorism. It is well known that Russia has been greatly affected by terrorism and that the Russian authorities’ response had been widely covered in the media. These attacks, essentially linked to the conflicts in the Caucasus and particularly to the wars in Chechnya – which the Russian Constitutional Court has dubbed a ‘civil war’60 – had pushed Russia to put in place a legislative arsenal, initially limited to her own territory and subsequently exported. The aim of this paper is not to examine the content or opportunity of this legislative activity, but to analyse the extent to which it may have constituted the impetus for reforms in Ukraine and Belarus. Russia’s Federal Law on the fight against terrorism was adopted on June 25, 1998.61 It consists of eight chapters on the institutions competent to take part in that fight, the issues related to the damage caused by acts of terrorism and the social support to be offered to victims, etc. It is especially striking to see the extent to which the Belarusian Law of January 3, 2002, is similar.62 Not only is its structure identical word for word, but the very content of the provisions is a (certified?) copy of the Russian Federal Law. The Ukrainian Law, passed on March 20, 2003,63 bears only marginal differences, in its phrasing and organisation, to the Russian ‘template.’ 59

 On the de jure imbalance within EurAsEC, cf. infra, sec. 4.1.

60

 Ruling No. 10-P of the Constitutional Court of the Russian Federation of July 31, 1995, on the constitutionality of various presidential decrees on the war in Chechnya [Постановление КС РФ от 31 июля 1995 г. № 10-П [Postanovlenie KS RF ot 31 iyulya 1995 g. No. 10-P]], ¶ 2.

61

 Federal Law No. 130-FZ of June 25, 1998, ‘On the Fight against Terrorism’ [Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом» [Federal’nyi zakon ot 25 iyulya 1998 g. No. 130-FZ ‘O bor’be s terrorizmom’]].

62

 Law of the Republic of Belarus’ No. 77-Z of January 3, 2002, ‘On the Fight against Terrorism’ [Закон Республики Беларусь от 3 января 2002 г. № 77-З «О борьбе с терроризмом» [Zakon Respubliki Belarus’ ot 3 yanvarya 2002 g. No. 77-Z ‘O bor’be s terrorizmom’]].

63

 Law of Ukraine No. 638-IV of March 20, 2003, ‘On the Fight against Terrorism’ [Закон Украины от 20 марта 2003 г. № 638-IV «О борьбе с терроризмом» [Zakon Ukrainy ot 20 marta 2003 g. No. 638-IV ‘O bor’be s terrorizmom’]].

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The only substantive difference between the three statutes is to be found in the definition of ‘terrorism.’ The Russian Federal Law was adopted before the attacks of September 11 and did not benefit from the discussions held on an international, or at least a European level.64 It thus puts forward a criterion of intention, which is unusual to say the least, as an act of terrorism has been committed if the latter ‘is carried out with the intention of provoking a way or complicating international relations.’ This is, nonetheless, less obscure than Ukraine’s criterion, whereby an act of terrorism targets activities ‘the purpose of which is to achieve a criminal aim;’ ultimately, Belarus Law appears, formally, to be the most precise.65 The influence of Russian Federal Law is patent in the fight against terrorism. It did not come about directly, in an immediate relationship between legal systems, but via the CIS.66 Russia has indeed called for the establishment of the Anti-Terrorist Centre, formally created by the Heads of State of the CIS on June 21, 2000,67 tasked to facilitate operational co-operation by organising joint exercises for instance, or even to promote scientific co-operation through financial contributions to the organisation of lectures or seminars.68 This will has brought with it a fresh impetus and was consolidated on December 8, 1998, by the adoption of the Model Law by the Interparliamentary Assembly,69 which contains, identical to the very last comma, the definition of acts of terrorism forged by the Russian Federal Law and its unusual final criterion.70 It is therefore the bodies within the CIS and its Member States taken as 64

 Cf. the definition posited by the Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (2001/931/CFSP), 2001 O.J. (L 344) 93.

65

 This is, in particular, ‘an explosion, arson or other acts that endanger human life, causing bodily harm, large-scale damage or other serious consequences, with the aim of destabilising the social order or intimidating a section of the population or influence the decision-making process of public authorities.’ Numerous supplementary examples follow this provision.

66

 Article 7 of the Agreement establishing the CIS stated from the outset that the common actions of the High Contracting Parties include ‘the fight against criminal organisations.’

67

 Decision of June 21, 2000, ‘On the Establishment of an Anti-Terrorist Centre of the States Parties of the Commonwealth of Independent States’ [Решение Совета глав государств Содружества Независимых Государств от 21 июня 2000  г. «О  создании Антитеррористического центра государств – участников Содружества Независимых Государств» [Reshenie Soveta glav gosudarstv Sodruzhestva Nezavisimykh Gosudarstv ot 21 iyunya 2000 g. ‘O sozdanii Antiterroristicheskogo tsentra gosudarstv – uchastnikov Sodruzhestva Nezavisimykh Gosudarstv’]]. This was a political decision followed by the further Decision of the Council of Heads of State of December 1, 2000 [Решение от 1 декабря 2000 г. «Oб Антитеррористическом центре государств – участников Содружества Независимых Государств» [Reshenie ot 1 dekabrya 2000 g. ‘Ob Antiterroristicheskom tsentre gosudarstv – uchastnikov Sodruzhestva Nezavisimykh Gosudarstv’]], then by Regulations, of the same date, which establish the centre’s status main operational rules.

68

 Regulations, supra n. 67, Art. 2.12.

69

 Model Law of December 8, 1998, ‘On the Fight against Terrorism’ [Модельный закон от 8 декабря 1998 г. «O борьбе с терроризмом» [Model’nyi zakon ot 8 dekabrya 1998 g. ‘O bor’be s terrorizmom’]].

70

  I d. Art. 4. It will be noted, however, that the new Model Law adopted by the Interparliamentary Assembly on April 17, 2004 (amendment resulting from Decree No. 23-5) [Модельный закон «О борьбе

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a whole that have contributed to the emergence of a full legislative arsenal by following the path initially taken by Russia. This systematic adoption of Russian provisions does indeed show that Russian law wields its own influence. In this particular case, it did not resort to the extraterritoriality technique but set about publicising that influence through the CIS, the latter becoming a level of power. In practice, this ‘multiplier effect’ that Russia intends the CIS to have is reflected in positive law. The phenomenon of normative convergence, studied in a relational framework with Russia on one side and Ukraine and Belarus on the other, is doubly curious. On the one hand, it is a convergence which is in keeping with an alignment with Russian law. On the other hand, this is not done directly but through the CIS. This international organisation thus becomes, even on a  legal level, an institution disseminating Russian normative influence throughout post-Soviet states. In that respect, we cannot formally speak of Russian unilateralism. However, it seems that in recent times Russia has not hesitated in employing a number of unilateral practices in order to force her partners to align themselves with her legislation. This is another technique used by Russia, over and above the other two, which supplements the legal arsenal intended to promote her legal influence. 4. The Boost to Normative Expansion Normative influence techniques are not static. They are in a state of constant evolution and have had to adapt to new legal instruments, new political and legal contexts created by States as players in international legal transactions. Russia has, in particular, relied upon her advantageous institutional position within EurAsEC to promote her law and her own choices by imposing them, unilaterally, on Ukraine and Belarus. By institutionalising the political and economic imbalance of its members, EurAsEC has allowed Russia to use that organisation as a catalyst for her power (sec. 4.1). EurAsEC is thus gradually becoming an organisation that allows Russia to expand her legal influence within that organisation, but also to transform it into a stepping stone for her power and to impose certain choices, beyond EurAsEC and in breach of the rules, on non-Member States (sec. 4.2). 4.1. The Expression of Power within EurAsEC Russia has long sought to create a framework for institutionalised co-operation with newly independent States. Faced with their reluctance – some, like the Baltic States, clearly opting for Europe – it has been difficult for Russia to achieve tangible results. This explains the proliferation of agreements concluded with CIS States, the purpose of с терроризмом» (новая редакция) (принят Постановлением Межпарламентской Ассамблеи государств – участников СНГ от 17 апреля 2004 г. № 23-5) [Model’nyi zakon ‘O bor’be s terrorizmom’ (novaya redaktsiya) (prinyat Postanovleniem Mezhparlamentskoi Assamblei gosudarstv – uchastnikov SNG ot 17 aprelya 2004 g. No. 23-5)]], does not adopt the same final criterion.

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which was to intensify relations in the context of regional alliances. Without claiming to be exhaustive, we may mention, aside from the specific case of the Collective Security Treaty Organisation,71 the Treaty on the creation of the Union State between Belarus and Russia of December 8, 1999,72 which followed on the heels of the Treaty of February 26, 1999, on the Customs Union and the Single Economic Space.73 The latter Treaty went on to become, on October 10, 2000, EurAsEC, which would have a more glorious future. Indeed, it was the setting for the creation, in the long run, of the Customs Union with Belarus, Kazakhstan, Kyrgyzstan and Tajikistan. For Russia, EurAsEC has been a way of ensuring the effectiveness of the regional alliances that she has brought about or encouraged. The results are tangible, numerous and come one after the other at a frenetic pace, thus demonstrating that the integrative approach of cultivated spillover74 has retained its virtues. The Customs Union, the Treaty concluded in through EurAsEC on October 6, 2007,75 came into effect on July 1, 2011: there are no internal 71

 This organisation, based on the Collective Security Treaty signed on May 15, 1992 [Договор от 15 мая 1992 г. «O коллективной безопасности» [Dogovor ot 15 maya 1992 g. ‘O kollektivnoi bezopasnosti’]], was established by two treaties dated October 7, 2002: one concerning the statutes of the Collective Security Treaty Organisation [Устав Организации Договора о  коллективной безопасности [Ustav Organizatsii Dogovora o  kollektivnoi bezopasnosti]], the other on the legal status of the Collective Security Treaty Organisation [Соглашение о правовом статусе Организации Договора о коллективной безопасности [Soglashenie o pravovom statuse Organizatsii Dogovora o kollektivnoi bezopasnosti]].

72

 Many agreements have been concluded on this subject and not a single one has yielded concrete results. This is the case for the Treaty on the creation of the Russia-Belarus Community of April 2, 1996 [Договор об образовании Сообщества России и Беларуси от 2 апреля 1996 г. [Dogovor ob obrazovanii Soobshchestva Rossii i Belarusi ot 2 aprelya 1996 g.]], and the Treaty on the BelarusRussia Union of April 2, 1997 [Договор о Союзе Беларуси и России от 2 апреля 1997 г. [Dogovor o Soyuze Belarusi i Rossii ot 2 aprelya 1997 g.]]. Following the Declaration on the further unification of Russia and Belarus on December 25, 1998 [Декларация о дальнейшем единении Беларуси и России от 25 декабря 1998 г. [Deklaratsiya o dal’neishem edinenii Belarusi i Rossii ot 25 dekabrya 1998 g.]], the Treaty establishing State Union was concluded on December 8, 1999 [Договор от 8 декабря 1999 г. «О создании Союзного государства» [Dogovor ot 8 dekabrya 1999 g. ‘O sozdanii Soyuznogo gosudarstva’]]. The proliferation of treaties on the same or similar aims was already the sign of a lack of effectiveness . . . For an overview of these agreements and a geopolitical analysis, cf. Teurtrie, supra n. 2.

73

 This Treaty, signed by Russia, Belarus, Kazakhstan, Kyrgyzstan and Tajikistan, is itself an extension of the Treaty of April 30, 1994, establishing the Single Economic Space between Kazakhstan, Kyrgyzstan and Uzbekistan [Договор от 30 апреля 1994 г. «O создании Единого экономического пространства между Республикой Казахстан, Кыргызской Республикой и Республикой Узбекистан» [Dogovor ot 30 aprelya 1994 g. ‘O sozdanii Edinogo ekonomicheskogo prostranstva mezhdu Respublikoi Kazakhstan, Kyrgyzskoi Respublikoi i Respublikoi Uzbekistan’]], and of the Agreement on Customs Union between Russia and Belarus of January 6, 1995 [Соглашение от 6 января 1995 г. «O Таможенном союзе между Российской Федерацией и Республикой Беларусь» [Soglashenie ot 6 yanvarya 1995 g. ‘O Tamozhennom soyuze mezhdu Rossiiskoi Federatsiei i Respublikoi Belarus’’]].

74

 Panayotis Soldatos, Le système institutionnel et politique des Communautés européennes dans un monde en mutation: théorie et pratique 138 (Bruylant 1989).

75

 This is the Treaty establishing the Single Customs Area and instituting the Customs Union of October 6, 2007, concluded between Belarus, Russia and Kazakhstan [Договор от 6 октября 2007 г. «O создании

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customs frontiers for goods between Belarus, Kazakhstan and Russia. On November 18, 2011, the Member States of the Customs Union set up a Commission,76 the operation of which is fundamentally different to that of the European Commission,77 and whose missions consist in guaranteeing the proper functioning of the Customs Union, be it in terms of customs duties, competition, energy policy, etc., as well as ensuring that the treaties and agreements of the Customs Union and the Single Economic Space are respected.78 On the same day, the Declaration on Eurasian economic integration announced the creation of the Single Economic Space in which the free movement of goods, services, capital and persons would be guaranteed and which may result a real Eurasian Economic Union in 2015. Finally, to complete this (Impressionist) picture of intra-CIS conventional relationships, it will be noted that Ukraine refused to be a party to all aspects of this integration process. Either hesitant or cautious, she wished to manage her European partners whilst only associating herself with the agreements concluded through EurAsEC one at a time. In the face of this, Moscow opted for a ‘bait strategy’ towards her reluctant neighbours. She offered to conclude the Treaty on the Free Trade Zone (FTZ) which seeks to unite the States that have not joined the Customs Union, amongst which number Ukraine seems to be essential. The Treaty establishing the FTZ was signed by many CIS Member States on October 18, 2011. Ratified by Russia, Belarus and Ukraine, it came into force on September 20, 2012.79 Russia is thus weaving a web of conventional networks, which take the form of concentric circles. единой таможенной территории и формировании Таможенного союза» [Dogovor ot 6 oktyabrya 2007 g. ‘O sozdanii edinoi tamozhennoi territorii i formirovanii Tamozhennogo soyuza’]], as well as the Treaty on the Customs Union Commission of October 6, 2007 [Договор от 6 октября 2007 г. «O Комиссии Таможенного союза» [Dogovor ot 6 oktyabrya 2007 g. ‘O Komissii Tamozhennogo soyuza’]]. 76

 This was created by the Treaty of November 18, 2011, on the Eurasian Economic Commission [Договор от 18 ноября 2011 г. «О Евразийской экономической комиссии» [Dogovor ot 18 noyabrya 2011 g. ‘O Evraziiskoi ekonomicheskoi komissii’]], the practical operation of which us governed by the Working Regulations of the Eurasian Economic Commission adopted by Decision No. 1 of the EurAsEC Interstate Council on the same date [Решение от 18 ноября 2011 г. № 1 «О Регламенте работы Евразийской экономической комиссии» [Reshenie ot 18 noyabrya 2011 No. 1 ‘O Reglamente raboty Evraziiskoi ekonomicheskoi komissii’]].

77

 This Commission is in no way a supranational body. In reality, it is itself divided into two bodies: the Council of the Commission and the College of the Commission. Under Art. 12 of the Treaty on the Eurasian Economic Commission, the Council of the Commission ‘adopts decisions by consensus’ and, where this requirement is not satisfied, one of its members may appeal to the Eurasian Higher Economic Council which is a meeting of the Council involving the Heads of State and Heads of Government. The College of the Commission, which is the true executive body of the EurAsEC Customs Union, adopts decisions and recommendations by consensus or a two-thirds qualified majority, and each State has three representatives.

78

 Article 3 of the Treaty.

79

 Cf. Treaty on the Free Trade Zone of October 18, 2011 [Договор от 18 октября 2011 «O зоне свободной торговли» [Dogovor ot 18 oktyabrya 2011 g. ‘O zone svobodnoi torgovli’]], Art. 22 (on the formalities for the entry into force of the Treaty).

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In these new regional economic relationships, Russia has restructured her power by compelling her partners to accept that she ought, institutionally, to have carry more weight than them. The time when the decisions of the CIS were made purely through the adoption of an international agreement and when, by definition, each State formally retained a power of veto, has passed. Step by step, the majority approach has taken its course and this is quite obvious in EurAsEC. Firstly, the operation of EurAsEC institutions is based on a double approach, a striking intergovernmental approach in which the decision-making process requires unanimity.80 This is the case, in particular, within the EurAsEC Interstate Council, which is ‘the highest body of the Customs Union’81 and where the ordinary rules of procedure require consensus, except for decisions on the exclusion of a Member State.82 Such pure intergovernmentalism is made up for by voting rules that follow a majority approach within the Integration Committee, in a sense that is eminently favourable to Russia, given that she has 40% of the votes83 and decisions require a two-thirds majority; this, in practice, means that Russia still have to obtain the support of at least two other Member States. In other words, the voting conditions for the Integration Committee allow Russia to make it endorse decisions and constitute a crucible for her normative expansion.84 Secondly, on June 9, 2009, following the disastrous consequences of the financial crisis in 2008, the EurAsEC Member States set up the EurAsEC Anti-Crisis Fund.85 This Fund is almost entirely financed by Russia, which secured 88% of the voting of the fund’s Council Committee.86 As a decision can only be made once a quorum of 90% 80

 With the constructive abstention mechanism.

81

 Treaty on the foundation of the Eurasian Economic Union of October 10, 2000 [Договор об учреждении Евразийского экономического сообщества от 10 октября 2000  г. [Dogovor ob uchrezhdenii Evraziiskogo ekonomicheskogo soobshchestva]] [hereinafter EurAsEC Treaty], Art. 5.

82

 These decisions have to be made unanimously, not counting the vote of the State concerned (EurAsEC Treaty, Art. 13(1)).

83

 For the rest, Belarus and Kazakhstan account for 15 votes, while Kyrgyzstan and Tajikistan account for 7.5 votes. Uzbekistan had 15 votes prior to its withdrawal in 2008.

84

 This imbalance is logical as the political and economic difference is obvious. We may even go so far as to say that, had the number of votes been strictly proportional to the real weight of Member States, Russia could have claimed to hold a majority all by herself. This balance of votes must therefore be understood as a concession on Russia’s part. The fact remains, however, that she is in a more favourable position than in the CIS, where it was necessary almost systematically to conclude a treaty subject to approval by each national legal system.

85

 The Fund is based on the Treaty signed on June 9, 2009, between Russia, Belarus, Kazakhstan, Kyrgyzstan, Tajikistan and Armenia establishing the EurAsEC Anti-Crisis Fund [Договор от 9 июня 2009  г. об учреждении Антикризисного фонда Евразийского экономического сообщества [Dogovor ot iyunya 2009 ob uchrezhdenii Antikrizisnogo fonda Evraziiskogo ekonomicheskogo soobshchestva]] (with additional Regulations on the EurAsEC Anti-Crisis Fund), and on the Agreement on the management of the Anti-Crisis Fund adopted on the same date [Соглашение об управлении средствами Антикризисного фонда Евразийского экономического сообщества [Soglashenie ob upravlenii sredstvami Antikrizisnogo fonda Evraziiskogo ekonomicheskogo soobshchestva]].

86

 Russia finances the Fund to the tune of US $ 7.5 billion out of the approximately US $ 8.5 billion (cf. Treaty establishing the EurAsEC Anti-Crisis Fund, Art. 3, and Regulations on the EurAsEC Anti-Crisis Fund, Art. 14(4)).

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of the votes is obtained, it should not be very difficult for Russia to decide the policy of this new body almost single-handedly. Conversely, nothing can be done without her, and it may even be said that Russia has a blocking majority. It will be noted, incidentally, that it is quite possible that the fund will grant loans subject to a number of reform conditions. Consequently, Russia is operating a policy of conditionality, even though she has traditionally rejected the same, citing the principle of noninterference in internal affairs.87 Thirdly and finally, the methods for resolving disputes within EurAsEC is also favourable to Russia. The basic principle is that of seeking a diplomatic solution to disputes, for which Russia has always had a natural inclination. Consequently, in the event of gross violations of EurAsEC rules by Russia, such behaviour could nevertheless be approved ex post following a diplomatic arrangement. A measure initially contrary to EurAsEC law could therefore be accepted or imposed on Russia’s fellow contracting parties, without the matter coming before the EurAsEC Court.88 The flexibility of the EurAsEC dispute resolution mechanism will therefore undoubtedly allow Russia to impose some of her norms on her partners via the diplomatic route. EurAsEC is therefore a catalyst for Russian power which is likely, in future, to use all of its potential to the great benefit of her strategy of legal influence. Despite an institutional framework that could not be more favourable, Russia has not hesitated in recent times deliberately to break the most fundamental rules in order to impose new ones, beyond EurAsEC, on Ukraine and Belarus. 4.2. The Expression of Power beyond EurAsEC Very recently – and, therefore, very shortly after the Customs Union and the FTZ came into force – Russia has made decisions that directly disregard those undertakings. Russia has therefore positioned herself in some sense beyond EurAsEC by exceeding her own rules and those of the integration zone that she shares with Ukraine. It is no longer a matter of mere normative alignment, i.e. a fundamentally legal Russian act that would induce neighbouring States to adopt the normative provision, but an illegal act which has attempted to force Ukraine and Belarus to amend their own legislation in the area in question. In this respect, the case concerning the recycling tax on vehicles caused uproar. The tax, brought in by Federal Law on July 28, 87

 Admittedly, this conditionality is closer to that of the IMF than that of the EU. The fact remains that it is a first step towards the development of a policy of conditionality, which has been roundly criticised. The enlargement of the customs union to include Kyrgyzstan and the adoption of a detailed road map raise the same issues.

88

 Only State and institutional applications may be brought before the Court. On the Court’s jurisdiction, cf., essentially, EurAsEC Treaty, Art. 8. Equally, reference can be made to the following instruments on the Customs Union: Treaty establishing the Single Customs Area and instituting the Customs Union, Art. 6; Treaty on the Customs Union Commission, Art. 16; Agreement on integrated customs tariff regulation, Art. 9; Treaty on the Eurasian Economic Commission, Art. 18.

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2012,89 amends Art. 51(1) of the Budgetary Code of the Russian Federation. Its ultimate purpose us to guarantee Russia’s ‘environmental safety’90 by imposing a new tax on vehicles imported into Russia, which mainly affects used cars. A number of Russian car manufacturers91 were excluded from the scope of the new tax, as well as vehicles manufactured in a Member State of the Customs Union.92 This does not, for all that, guarantee their full and complete compliance. Indeed, the exclusion only operates in respect of vehicles ‘that have the status of Customs Union goods.’93 In other words, and in accordance with the Customs Union Statutes, only vehicles that have undergone significant changes in Belarus, for instance, are exempted. Consequently, all imported products, including those transiting through Belarus, are subject to the tax and nearly all of the automobile fleet, as the vehicles are already finished products; the same applies to those transiting through Russia en route to Belarus. It is not difficult to understand just how poorly this tax, which can prove to be very high (up to several thousand Euros), was viewed by the people and the governments of Belarus and Ukraine. Their reaction was now identical, however. Ukraine, the more turbulent neighbour, vociferously protested and the bill was put forward on November 19, 2012, seeking to impose a ‘recycling tax’ on vehicles imported from Russia.94 This draft piece of so-called mirror legislation, which was intended to come into force on January 1, 2013, is a genuine counter-measure within the meaning 89

 Federal Law No. 128-FZ of July 28, 2012, ‘On the Amendment to the Federal Law “On the Production and Consumption Wastes” and Article 51 of the Budgetary Code of the Russian Federation’ [Федеральный закон от 28 июля 2012 № 128-ФЗ «О внесении изменений в Федеральный закон «Об отходах производства и  потребления» и  статью 51 Бюджетного кодекса Российской Федерации» [Federal’nyi zakon ot 28 iyulya 2012 No. 128-FZ ‘O vnesenii izmenenii v Federal’nyi zakon “Ob otkhodakh proizvodstva i potrebleniya” i stat’yu 51 Byudzhetnogo kodeksa Rossiiskoi Federatsii’]] [hereinafter Federal Law No. 128-FZ].

90

 Federal Law No. 89-FZ June 24, 1998, ‘On the Production and Consumption Wastes’ [Федеральный закон от 24 июня 1998 г. № 89-ФЗ «Об отходах производства и потребления» [Federal’nyi zakon ot 24 iyunya 1998 g. No. 89-FZ ‘Ob otkhodakh proizvodstva i potrebleniya’]], Art. 24.1(1) (as amended by the Federal Law No. 128-FZ).

91

 For instance, Avtovaz, Kamaz or Gaz, where these gave environmental ‘guarantees’ and undertook to set up a waste recycling and treatment loop.

92

 Cf. Federal Law ‘On the Production and Consumption Wastes,’ Art. 24.1(6) (as amended by the Federal Law No. 128-FZ). Equally, reference may be made to the Government Decree No. 870 of August 30, 2012, ‘On the Recycling Tax Concerning Road Vehicles’ [Постановление Правительства РФ от 30 августа 2012 г. № 870 «Об утилизационном сборе в отношении колесных транспортных средств» [Postanovlenie Pravitel’stva RF ot 30 avgusta 2012 g. No. 870 ‘Ob utilizatsionnom sbore v otnoshenii kolesnykh transportnykh sredstv’]].

93

 Federal Law ‘On the Production and Consumption Wastes,’ Art. 24.1(6) (as amended by the Federal Law No. 128-FZ).

94

 Bill No. 11437 of November 19, 2012, put before the Verkhovna Rada [Проект Закону від 19 жовтня 2012 р. № 11443 «Про внесення змін до статті 47 Закону України «Про охорону навколишнього природного середовища» (щодо утилізаційного збору)» [Proekt Zakonu vіd 19 zhovtnya 2012 g. No. 11443 ‘Pro vnesennya zmіn do stattі 47 Zakonu Ukrayiny “Pro okhoronu navkolishn’ogo prirodnogo seredovishcha” (shchodo utylіzatsіinogo zboru)’]]. This did not pass into law.

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of international law – i.e. the Treaty establishing the FTZ – by means of another violation, in order to bring Russia back within the bounds of legality and re-establish the conventional balance. Belarus was – as it frequently is – more measured and understanding. Indeed, on July 16, when the Russian Federal Law was about to be voted upon, the Council of the EurAsEC Commission adopted a decision seeking to legalise the principle of a tax on recycling within the Community.95 Very shortly thereafter, on October 12, the same Council of the EurAsEC Commission, following an impact study on the Russian tax, adopted the Decision fully approving the scheme.96 It is therefore quite possible that Belarus will soon align herself completely with Russian law. This likelihood is far illusory inasmuch as Belarus has applied for a loan from the Anti-Crisis Fund and is therefore positioning as herself as an applicant visà-vis Russia.97 Furthermore, the Russian minister for trade and industry suggested on April 11, 2013, that the scheme be extended to the entire Customs Union.98 The ‘recycling tax’ episode is far from over and stands as a revealing example of a  trend in Russian normative expansionism. This is the highest degree of normative influence whereby the Russian Federation manages to impose her rules in contravention of commitments to which she voluntarily subscribed shortly before. It must be added that there is, in reality, a double violation. Openly discriminatory, the Russian provisions breach not only the rules provided in her regional economic alliances, but also disregard those of the WTO, which Russia joined on August 22, 2012. Furthermore, the European Union has expressed considerable concern and is currently threatening Russia with dispute resolution proceedings before the 95

 Cf. Decision No. 55 of July 16, 2012, ‘On the Application by Belarus and Kazakhstan of Import Duties Other Than the Customs Duties of the Customs Union with Regard to Certain Categories of Goods’ [Решение от 16 июля 2012 г. № 55 «О применении Республикой Беларусь и Республикой Казахстан ставок ввозных таможенных пошлин, отличных от ставок Единого таможенного тарифа Таможенного союза, в отношении отдельных категорий товаров» [Reshenie ot 16 iyulya 2012 g. No. 55 ‘O primenenii Respublikoi Belarus’ i Respublikoi Kazakhstan stavok vvoznykh tamozhennykh poshlin, otlichnykh ot stavok Edinogo tamozhennogo tarifa Tamozhennogo soyuza, v otnoshenii otdel’nykh kategorii tovarov’]].

96

 Cf. Decision No. 84 of October 12, 2012, ‘On the Results of the Monitoring of the Application of the Recycling Tax in Russia with Regard to Vehicles with Customs Union Goods Status Imported from Belarus and Kazakhstan’ [Решение Совета Евразийской экономической комиссии от 12 октября 2012 г. № 84 «О результатах мониторинга администрирования утилизационного сбора в Российской Федерации в отношении транспортных средств, ввозимых из Республики Беларусь и Республики Казахстан и имеющих статус товаров Таможенного союза» [Reshenie Soveta Evraziiskoi ekonomicheskoi komissii ot 12 oktyabrya 2012 g. No. 84 ‘O rezul’tatakh monitoringa administrirovaniya utilizatsionnogo sbora v Rossiiskoi Federatsii v otnoshenii transportnykh sredstv, vvozimykh iz Respubliki Belarus’ i Respubliki Kazakhstan i imeyushchikh status tovarov Tamozhennogo soyuza’]]. It provides, in particular – and very fortunately – that ‘[t]he parties guarantee that vehicles imported into the territory of the Russian Federation from the territory of Belarus and of the Republic of Kazakhstan by natural persons, subject to the payment of customs duties as required in the territory of these parties, are not subject to the tax on recycling in the Russian Federation.’

97

 On Russia’s strategic place in the Anti-Crisis Fund, cf. supra.

98

 Cf. the dispatch issued by Interfax in Belarus on the following website: (accessed Mar. 6, 2015).

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WTO.99 In this respect, we could well ask whether the case illustrates the limits of Russian normative expansion. Endowed as they are within limited powers of political resistance, Belarus and Ukraine can only put up marginal resistance to the Russian strategy of legal influence. Russia’s most influential partners, like the European Union, will not hesitate in demanding that she respect the law to which she has freely subscribed and in using various forms of political and economic pressure against her. Decidedly, the study of normative influence is indeed that of the meeting point between law and power, whatever the country or organisation resorting to it. References Baudoin, Marie-Elisabeth. Justice constitutionnelle et État post-soviétique 115 f. (PU Clermont-Ferrand 2005). Baudoin, Marie-Élisabeth. Les cultures post-soviétiques face au droit, 2006 Revue d’études politiques et constitutionnelles Est-européennes 73. Beaud, Olivier. La puissance de l’État 130 (PUF 1994). Bull, Hedley. Civilian Power Europe: A Contradiction in Terms?, 21(2) Journal of Common Market Studies (1982). doi:10.1111/j.1468-5965.1982.tb00866.x Correia, Vincent. L’Union européenne et l’ordre international de l’aviation civile 891 f. (Bruylant 2012). Daillier, Patrick, et al. Droit international public ¶ 240 (8e éd., LGDJ 2009). Eurasia’s Ascent in Energy and Geopolitics: Rivalry or Partnership for China, Russia and Central Asia? (Robert E. Bedeski & Niklas Swanström, eds.) (Routledge 2012). Flavier, Hugo. Le voisinage commun de l’Union européenne et de la Russie, in L’Europe face au monde 199 f. (Loïc Grard, éd.) (Pedone 2013). Forsberg, Tuomas. Normative Power Europe, Once Again: A Conceptual Analysis of an Ideal Type, 49(6) Journal of Common Market Studies (2011). doi:10.1111/j.14685965.2011.02194.x Kagan, Robert. La puissance et la faiblesse (Plon 2003). L’émergence de nouvelles puissances: vers un système multipolaire? Afrique du Sud, Brésil, Chine, Inde, Mexique, Russie (Sebastian Santander, éd.) (Ellipses 2009). L’enjeu mondial. Les pays émergents (Christophe Jaffrelot, éd.) (Presses de Sciences-Po 2008). Manners, Ian. Normative Power in Europe: A Contradiction in Terms?, 40(2) Journal of Common Market Studies (2002). doi:10.1111/1468-5965.00353 99

 Cf. Trade and Investment Barriers Report 2013, COM(2013) 103 final, at (accessed Mar. 6, 2015). The wrath of the European Union is all the greater as Russian infringements within the framework of the WTO multiplied, and particularly of health and plant-health standards (importing of live animals and slaughter pigs). In the same report, the Commission states that ‘[t]he EU is worried by the systemic use of bans towards its product by Russia as soon as one problem arises, without taking into account the WTO principles of justified and proportionate actions for SPS measures’ (id. at 14).

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Milacic, Slobodan. De l’âge idéologique à l’âge politique. L’Europe postcommuniste vers la démocratie pluraliste (Bruylant 2010). Moscou et le monde. L’ambition de la grandeur: une illusion? (Anne de Tinguy, éd.) (Autrement 2008). Olga Gille-Belova, La situation des minorités religieuses dans la Russie contemporaine, in L’Europe des religions (Hugo Flavier & Jean-Pierre Moisset, éds.) 121 f. (Pedone 2013). Ponthoreau, Marie-Claire. Droit(s) constitutionnel(s) comparé(s) 187 f. (Economica 2010). Rapoport, Cécile. Les partenariats entre l’Union européenne et les États tiers européens (Bruylant 2011). Russia: The Challenges of Transformation (Piotr Dutkiewicz & Dmitri Trenin, eds.) (New York University Press 2011). Russia’s Identity in International Relations: Images, Perceptions, Misperceptions (Raymond Taras, ed.) (Routledge 2012). Saillant, Elodie. L’exorbitance en droit public (= 109 Nouvelle bibliothèque de thèses) (Dalloz 2011). Santulli, Carlo. Droit du contentieux international 203 f. (Montchrestien 2005). Smith, Martin A. Power in the Changing Global Order: The US, Russia and China (Polity Press 2012). Soldatos, Panayotis. Le système institutionnel et politique des Communautés européennes dans un monde en mutation: théorie et pratique 138 (Bruylant 1989). Teurtrie, David. Géopolitique de la Russie. Intégration régionale, enjeux énergétiques, influence culturelle (L’Harmattan 2010). The European Union, Russia and the Shared Neighbourhood (Jackie Gower & Graham Timmins, eds.) (Routledge 2011). Touzé, Sébastien. La «quasi nationalité», réflexions générales sur une notion hybride, 115(1) Revue générale de droit international public (2011). Агапов А.Б. Административное право: Учебник [Agapov A.B. Administrativnoe pravo: Uchebnik [Andrey B. Agapov, Administrative Law: Textbook]] 32 f. (6th ed., Yurait 2009)). Information about the author Hugo Flavier (Bordeaux, France) – Associate Professor of Public Law and European Law at Montesquieu University – Bordeaux IV, Centre de Recherche et Documentation Européen et International (CRDEI) (16 Avenue Léon Duguit, Pessac, 33608, France; e-mail : [email protected]).

Eastern and Southern Ukraine’s Right to Secede and Join the Russian Federation

John J.A. Burke, Almaty Management University School of Law (Almaty, Kazakhstan),

Svetlana Panina-Burke, Independent (Almaty, Kazakhstan)

This article answers a multi-faceted question: do the people occupying the region of Eastern and Southern Ukraine have the right to secede from Ukraine and merge with the Russian Federation? It also evaluates the legal status of the economic sanctions imposed upon the Russian Federation for its alleged interference in the internal affairs of Ukraine. The argument proceeds from the assumption that the international legal system does not repose on a foundation of empirical validity, but rather upon sets of authoritative statements, insusceptible of verification. In this context, the article constructs an argument based upon relevant public international law texts, interpreted according to contemporary jurisprudential thought and principles of statutory construction partially embodied in the Vienna Convention on the Law of Treaties of 1969, the implied right of secession contained in the UN General Assembly’s Declaration on Friendly Relations of 1970, and the need to achieve pragmatic results to legal questions. The argument thus avoids traditional doctrinal analysis and the mud of history. In short, the people occupying the region of Eastern and Southern Ukraine have the right to secede from Ukraine and merge with the Russian Federation, and the economic sanctions imposed against the Russian Federation for its presumed interference in the internal affairs of Ukraine are illegal under the United Nations Charter and the World Trade Organisation. Keywords: Ukraine; secession; public international law; economic sanctions; Russian Federation; self-determination. DOI: 10.17589/2309-8678-2015-3-1-33-57

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Except for the Donetsk People’s Republic [hereinafter DPR] and Lugansk People’s Republic [hereinafter LPR] that have ruled out political union with Ukraine, and held elections on November 2, 2014, to select a President and Parliament,1 separatists in other regions of Eastern and Southern Ukraine arguably have not stated their ultimate goal: 1) autonomy within Ukraine under the form of a federated government; 2) complete secession; or 3) secession combined with the objective to join the Russian Federation. This obfuscation introduces an obstacle in speaking of a right of secession for Eastern and Southern Ukraine. In spite of these constraints, the authors speculate that, given eight months of civil war, the ‘Odessa Massacre,’ and the increasing anti-separatist polemics of the Kiev government, including threats of a Great Patriotic War, ‘separatists’ are unlikely to accept anything less than total separation from Ukraine. Consequently, this article, written on shifting sands of facts, assumes for purposes of argument, that the political objective of the ‘separatists’ is secession from Ukraine and ultimate integration with the Russian Federation. Except for the ‘Minsk Protocol’ of September 5, 2014, organised by the Russian Federation, Ukraine, and the Organisation for Security and Co-operation in Europe, the role of third party states has not been established with any degree of reliability.2 The ‘Minsk Protocol,’ signed by representatives of DPR and LPR, comprised twelve points, principally the imposition of an immediate ceasefire and commitment to continue an ‘inclusive national dialogue.’ Nevertheless, the signatories have honoured the ‘Minsk Protocol’ more in the breach than in the observance, as fighting continues in the Donbass region, and the DPR and LPR seek political independence from Kyiv. In the absence of proof, the United States / European Union alliance maintains that the Russian Federation has intervened, politically and militarily, in the dispute.3 This perception purportedly justifies the imposition of economic sanctions against the Russian Federation with the purpose of causing a change in its foreign policy. The problem inheres in the definition of ‘fact.’ If ‘fact’ is defined as something empirically verifiable, then, with few exceptions, recent events in Ukraine leave ‘fact’ to perception and debate. Likewise problematic is sourcing of information due to conflicting reports, 1

 Donetsk and Luhansk Republics Call on KIEV to Acknowledge ‘Special Status’ – Statement, Sputnik International (Sep. 2, 2014), (accessed Mar. 7, 2015); Ukraine’s People’s Republics Rule out Political Union with Kiev: Reports, Sputnik International (Sep. 30, 2014), (accessed Mar. 7, 2015).

2

 Minsk Protocol, Wikipedia, (accessed Mar. 7, 2015).

3

 E.g., The Economist states: ‘Russia never admitted that it was in the conflict, which it fanned and fought both directly and through proxies, so has not celebrated victory as it did after the annexation of Crimea.’ Ukraine and Russia: Win Some, Loss More, The Economist (Sep. 20, 2014), at (accessed Mar. 7, 2015) (emphasis added). Remarkable is the absence of any support cited in The Economist for the claim that Russia fought in Eastern and Southern Ukraine.

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inconsistent results of ‘polls,’ and differences between mainstream and alternative media.4 RIA Novosti is the Russian state-controlled news media. While state-control permits censorship, RIA Novosti, in the authors’ view, provides information more accurate and balanced than well-established news journals. Flow Chart of Argument

1. The Non-Existent Law on the ‘Right of Secession’ and the Borgen Report Many scholars have written on secession, self-determination, and sovereignty.5 However, the publications repose upon declarative statement, mainly of ‘experts,’ dead or alive, non-definitive decisions of the International Court of Justice [hereinafter ICJ], and references to unsettled state practice or norms. This article uses Christopher J. Borgen’s Report ‘Thawing a Frozen Conflict: Legal Aspects of the Separatist Crisis in Moldova’6 [hereinafter Borgen Report], as the ‘citadel’ to assail since 4

 E.g., 2014 Pro-Russian Unrest in Ukraine, Wikipedia, (accessed Mar. 7, 2015) (providing ambiguous data on ‘polls’ taken by different organisations as to preferences for closer ties to the Russian Federation or to the European Union).

5

 Professor Mancini provides an excellent overview of the right of secession, parsed into sundry theories: 1) ‘primary rights theorists’ advocating secession as a fundamental, though qualified, right, and 2) ‘remedial rights theorists’ advocating secession as a derivative right when the mother State commits a delict. She also distinguishes between ‘external self-determination’ where secession is limited to ‘colonial peoples’ and ‘internal self-determination’ where secession is available to ‘peoples’ within an existing Nation State. Susanna Mancini, Secession and Self-Determination, in The Oxford Handbook of Comparative Constitutional Law ch. 23 (Michel Rosenfeld & András Sajó, eds.) (Oxford University Press 2012), available at (accessed Mar. 8, 2015). Twentyone papers on Ukraine, most dealing with secession, are published on the Social Science Research Network: .

6

 Christopher J. Borgen, Thawing a Frozen Conflict: Legal Aspects of the Separatist Crisis in Moldova: A Report from the Association of the Bar of the City of New York (St. John’s University, Legal Studies Research Paper

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the publication represents a substantial work and a purported accurate statement of public international law on the ‘right of secession.’ The Borgen Report examined the conflict between the Government of Moldova and the Transnistrian Moldovan Republic [hereinafter TMR] located between the Dniestr River and the border of Ukraine. The Borgen Report concluded that the TMR lacked a right to secession. Four fissures in the Borgen Report cast doubt upon its argument and conclusion. First, the analysis of the Borgen Report is cabined within well-established norms of public international law contained in the United Nations Charter: all states are sovereign and equal; no state has the right to intervene in the internal affairs of another state; and frictions within a state are domestic matters within the exclusive competence of the state to resolve.7 These starting premises not surprisingly make the road to secession a difficult odyssey. While the Borgen Report acknowledges that public international law is virtually silent on the right of secession, the implications of ‘silence’ are not fully delineated in the Borgen Report. Second, the historical discussion of Moldova is insufficient to support the Borgen Report’s assumption that Moldova qualifies as a sovereign state. While the Borgen Report deconstructs in detail the de facto regime of the TMR, the Borgen Report glosses over the source of sovereignty of the Republic of Moldova that is assumed to possess all attributes of a state.8 However, Moldova did not exist as a state throughout centuries of European history and first came into existence in 1924 as a province called the Moldavian Autonomous Soviet Socialist Republic (MASSR) within the Ukrainian Soviet Socialist Republic. This was primarily to achieve Stalin’s territorial expansion. In 1940, after Germany and the USSR executed the Molotov-Ribbentrop Pact, Stalin created the fifteenth republic of the USSR – the Moldavian Soviet Socialist Republic. The question arises as to the source of sovereignty of Moldova to clothe it in the dress of a state as defined in the Montevideo Convention on the Rights and Duties of States of 1933.9 The Borgen Report admits Moldova existed only as a ‘state’ #06-0045), at (accessed Mar. 7, 2015). Five persons representing the New York City Bar Association engaged in pronouncing judgment on the relationship between Moldova and Transnistria. While the Committee had access to officials and legal documents, its stylized analysis strikes a hollow note. Efforts are made to avoid the ‘straw man’ fallacy. 7

 U.N. Charter Art. 2, para. 1, Art. 2, para. 4, and Art. 2, para. 7.

8

 Recognising that the TMR is de facto a regime implies that it is de facto a State, though not de jure, since the TMR lacks recognition. However, this point raises two questions: 1) the Montevideo Convention does not require recognition as a State requirement, and 2) illustrates that secession is a factual event and not a juridical act. The authors thank Flora Vern, student at Sciences Po University (Paris, France), for clarifying this point.

9

 Convention on Rights and Duties of States, December 26, 1933, 49 Stat. 3097 [hereinafter Montevideo Convention]. Article 1 provides: ‘The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.’ Article 3 provides: ‘The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to

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by artificial construction of the declaration of USSR Leader Stalin. The question arises: why did the collapse of the USSR result in the creation of Moldova arising solely out of an artificial creation by a political leader bent on aspirations of territorial expansion?10 By contrast, Transnistria is lost in the quagmire of history, though it has a territory, a population, and a political infrastructure thereby meeting the requirements of the Montevideo Convention. The Borgen Report simply denounces Transnistria as an occupying power, while the latter and Moldova share similar questionable grounds to assert ‘sovereignty.’ Third, the sources of law consist of thin layers of authoritative statements, non-dispositive opinions of the ICJ and the Canadian Supreme Court, as well as historical instances of secessions lacking statistical foundation to advance the case of state practice. The primary expert is Hurst Hannam of the Fletcher School of Law and Diplomacy. In 1966, Hannam explained at a roundtable organized by the US Department of State that ‘self-determination during this time was not that all peoples had a right to self-determination but rather that all colonies had a right to be independent.’11 The legal authority of this statement is unidentified and contradicts explicit terms contained in two International Covenants that do not qualify the ‘right of self-determination’ to colonies.12 In addition, the Borgen Report incorporates statements from the Badinter Commission, formally known as the ‘Conference on Yugoslavia Arbitration Commission,’ to maintain that the exercise of self-determination may not result in frontier boundary redrawing, based on the principle of ‘inviolability of borders’ under customary international law.13 The Borgen Report also invokes statements of a Commission of Jurists of the League of Nations, organized to evaluate the case of Åland Islands (1921), to limit the exercise of the right of self-determination to extreme cases of when a mother state ‘brutally’ violates basic human rights.14 The organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.’ (emphasis added). The refusal of the United States and the European Union to ‘recognise’ the DPR or LPR does not deprive the two Republics of the legal status of ‘States,’ though potentially raising economic and financial problems for the two Republics. 10

 The most persuasive answer is that the post-Soviet Union ‘super powers:’ the US and the EU found it politically suitable. See Mancini, supra n. 5, at 491 (stating ‘[t]he European Union developed its ‘‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’’ ’ and noting that ‘[t]he United States produces analogous policy documents’).

11

 Borgen, supra n. 6, at 34.

12

 This appeal to authority permeates the law where select ‘authorities’ form a ‘priesthood’ to inform others how to interpret legal texts. While this appeal to authority arguably does not violate the fallacy of argumentum ad verecundiam, nevertheless, experts disagree, and reliance upon inside information is no way to interpret a treaty. See Irving M. Copi & Carl Cohen, Introduction to Logic 145 (12th ed., Pearson Education, Inc. 2008).

13

 Borgen, supra n. 6, at 37.

14

 Åland Islands, Wikipedia, (accessed Mar. 7, 2015).

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reference to the Åland Islands case is misfit, since Finland neither persecuted nor harmed any person in the Åland Islands, prior to the latter achieving autonomy. Further, the Borgen Report cites historical instances of secessions to establish state practice for the purpose of demonstrating its narrow reading of the right of selfdetermination. Based upon its cursory discussion of Moldovan history and its reliance upon razor thin law, the Borgen Report constructs a ‘three-prong’ legal test that permits the exercise of secession under exceptional circumstances and that bears similarities to the principle of ‘remedial sovereignty.’ The three-prong test comprises: 1) ‘secessionists’ must constitute a ‘people;’ 2) the state of which they are currently a part brutally violates human rights; and 3) there are no other effective remedies under either domestic or international law.15 Applying this test to the TMR, the report concludes that the TMR fails to meet the three-prong test and therefore lacks a right of secession. Fourth, noteworthy is the failure of the Borgen Report to define the term ‘brutally violate’ and to indicate the time of its occurrence. Unclear is whether ‘brutality’ is limited to physical, economic, or psychological harm. Equally unclear is the timing of the acts of brutality that give rise to a colorable claim of secession. For example, in the case of Ukraine, the response to the separatist movement is evidently brutal – acts of war. However, preceding what may be called the ‘civil war’ were the acts of the government in Kiev sufficiently ‘brutal’ to justify secession. Would language genocide constitute a brutal act of a mother State? The lack of clarity of the second prong dooms the test to failure. Consequently, the Borgen Report is built largely upon statements of unelected officials, Commissions appointed by a league that no longer exists, and the European Community that lacked control of Yugoslavia, in addition to anecdotal evidence from history. This methodology consists of law by fiat. The legal rules contained in the Borgen Report are products of declarative statements of select authorities; none of whom surprisingly are drawn from the territories seeking to exercise the right of ‘self-determination.’ That omission ‘silences the lambs.’ 2. Relevant Public International Law Documents Related to Right of Secession The United Nations Charter was produced after World War II, primarily to avoid World War III, as its main function is to uphold ‘international peace and security.’ On its founding effective date, there were fifty nation states. Now arguably there are close to 200. With the exception of the Palestinian Liberation Organization (PLO), the UN Charter governs states and threats to international peace. This aspect has led certain scholars to conclude that it does not govern secession or rights of self15

 Borgen, supra n. 6, at 38.

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determination.16 Nevertheless, even conceding that the primary objective of the UN Charter is to protect the integrity of states and to avoid future international armed conflict, it does not follow that the UN Charter implicitly disregards the rights of individuals or ‘peoples.’ Nor does it follow that the Charter sanctions the wholesale slaughter of a ‘people’ within a state when ‘people’ exercise their human rights.17 The maxim expressio unius est exclusio alterius applies with force to interpretation of the UN Charter. Those matters not specifically mentioned in the Charter are outside its ambit.18 Since the Charter does not mention secession, its supposed exclusive ambit of state sovereignty is stretched thin.19 Two international conventions deal with rights of ‘self-determination of peoples,’ a precondition for secession: 1) the 1966 International Covenant on Civil and Political Rights [hereinafter ICCPR], and 2) the 1966 International Covenant on Economic Social, and Cultural Rights [hereinafter ICESCR]. Both conventions contain an identical article germane to the question posed in this text. The English version of Art. 1(1) of the ICCPR and Art. 1(1) of the ICESCR state: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. The identical article of the French text provides: Tous les peuples ont le droit de disposer d’eux-mêmes. En vertu de ce droit, ils determinant librement leur statut politique et assurent librement leur développement économique, social, et culturel.

16

 E.g., Théodore Christakis, Les conflits de secession en Crimée et dans l’est de l’Ukraine et le droit international, 2014(3) Journal du droit international (Clunet).

17

 U.N. Charter, Art. 2, para. 7: ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.’

18

 The U.N. Charter technically is not subject to the interpretive framework of the Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/Conf.39/27, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969), at (accessed Mar. 7, 2015) [hereinafter Vienna Convention], as the latter is inapplicable retrospectively. However, the Vienna Convention states nothing extraordinary. It incorporates traditional canons of statutory interpretation.

19

 E.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 1, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967), at (accessed Mar. 7, 2015); and International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, Art. 1, S. Treaty Doc. No. 95-19, 993 U.N.T.S. 3, 6 I.L.M. 360 (1967), at (accessed Mar. 7, 2015).

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The identical article of the Russian text provides: Bce народы имеют право на самоопределение. В силу этого права они свободно устанавливают свой политический статус и свободно обеспечивают свое экономическое, социальное и культурное развитие. In addition, nothing in Art. 1(3) of the ICCPR, in all three versions, restricts this right of self-determination to colonies. The Preamble to the ICCPR provides that ‘[t]he State Parties to the present Covenant’ recognize: 1) the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world; 2) these rights derive from the inherent dignity of the human person; and 3) consistent with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights. Moreover, the obligations imposed upon Nation States are equally telling. Articles 2(1) and (2) of the ICCPR provide: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.20 Further, Art. 2 (1) of the ICCPR imposes affirmative obligations upon ‘State Parties’ to enact legislation to make certain that ‘people’ («les peuples» / «все народы») may effectuate the rights set forth in the ICCPR. Consequently, when a sovereign state violates the fundamental rights recognised in United Nations documents, including ‘natural law’ rights, then that sovereign State has violated its international law obligations and gives rise by negative implication to a right of secession by the ‘people’ harmed by unlawful State action. 20

 The ICECSR provides equivalent language in Art. 2(1): ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’

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3. An Alternative Reading of the ‘Right of Secession’ Law is an interpretive enterprise whereby a reader of law, whether a judge, scholar, or advocate imposes order and coherence upon related but not necessarily consistently written texts. Dworkin provides that ‘the concept of law is fundamentally an interpretive enterprise aiming to describe the values, interests and goals embodied in the law,’ and further elaborates that ‘[c]onstructive interpretation is a matter of imposing purpose on an object or practice in order to make it the best possible example of the form or genre to which it belongs.’21 Posner provides an important restraint: ‘[W]hile a literary critic may be an influential person, he or she is a private individual. The exercise of power by appointed officials with life tenure . . . is tolerated only in the belief that the power is constrained; and the principal, though not sole, constraint is authoritative texts.’22 Article 31 of the Vienna Convention instructs: A treaty shall be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The fusion of Dworkin and Posner’s views, plus traditional principles of statutory construction, partially embodied in the Vienna Convention, provide a methodology to interpret the law governing a right to secession.23 A right of secession may be derived from principal public international law texts using the above methodology without reliance upon secondary and tertiary sources of law.24 21

 John J.A. Burke, Political Foundation of Law and the Need for Theory with Practical Value: The Theories of Ronald Dworkin and Roberto Unger 178 (Austin & Winfield 1992).

22

 Richard A. Posner, Law and Literature 243 (Harvard University Press 1970).

23

 The primary canons of construction used are: 1) plain meaning rule: follow the plain meaning of the text, except when text suggests an absurd result or a scrivener’s error; 2) expressio unius est exclusio alterius: expression of one thing suggests the exclusion of others; 3) follow ordinary usage of terms, unless the text gives them a specified or technical meaning; 4) follow dictionary definitions of terms, unless the text provides a specific definition; and 5) consider extrinsic sources, such as legislative history and statements of drafters, only if a term is ambiguous. These canons of statutory construction are consistent with the Vienna Convention, though the canons precede the Vienna Convention (Arts. 31–32).

24

 In the context of self-determination and secession, certain scholars yield to the view that statements made by political leaders, such as President Woodrow Wilson, drafters or observers, whether living or dead, involved in treaty process, carry great, if not, definitive weight, to the interpretation of terms, in spite of the ordinary meaning of the terms contained in the treaty. This article rejects that view on grounds that the meaning of a covenant intended to have enduring effect need not get stuck in the mud of history, and, if the term has an ordinary meaning then that meaning trumps the «travaux préparatoires.» See generally Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 Wis. L. Rev. 1179. Professor Miller demonstrates striking similarities between ancient interpretive texts and modern canons. Modern canons are similar to older interpretive tools, including norms and conventions used to construe ancient Hindu texts, medieval Christian commentary on interpreting the Bible, Talmudic commentary on construing the Old Testament, and rules governing the interpretation of Roman law.

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The most authoritative statement of the absence of a universal right to secession is contained in the UN General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations of 1970.25 The 1970 Declaration states that the ‘right of self-determination’ cannot be construed as ‘authorising or encouraging any action which would dismember or impair . . . the territorial integrity or political unity of sovereign and independent States.’ The majority view provides that the ‘right of self-determination’ encompassing a right of secession is an exclusive right held by ‘peoples’ of a colony.26 Most documents and pronouncements, including the United Nations Charter are broadly drafted, contain ostensibly conflicting objectives, and therefore are susceptible to varying interpretation. The 1970 Declaration is no exception.27 That Declaration contains an explicit exception to denying a right of secession to ‘people’ within an existing sovereign State by predicating that denial upon adherence by the sovereign State to conduct itself ‘in compliance with the principle of equal rights and self-determination of peoples.’ Hence, a violation of the obligations in Art. 2 of the ICCPR and Art. 2 of the ICESCR opens the door to support an argument of secession for ‘peoples’ within a sovereign State subject to domination and exploitation. Further support for this position is found in Art. 1(2) and (3) of the Preamble of the UN Charter setting forth its purposes, not limited to Nation States: 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace. 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion (emphasis added).

25

 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/5217 (1970), at (accessed Mar. 7, 2015) [hereinafter 1970 Declaration]. An abundance of scholarly articles exist on this subject, but Stephen C. Neff, Some Considerations on Secession and Independence: The Cases of Kosovo and Georgia, 1 Amsterdam Law Forum 33 (2009), available at (accessed Mar. 8, 2015), expresses concisely and elegantly the debate over positive and negative secession, as well as his fine analysis of UN documents (id. at 35).

26

 Christakis, supra n. 16, at 23.

27

 Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514 (XV), U.N. GAOR, 15th Sess., Supp. No. 16, U.N. Doc. A/4684 (1961), at (accessed Mar. 7, 2015).

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The invitation for peace-loving states to join the United Nations implicitly requires that a state manage its internal conflicts without engaging in war with a class of its citizens.28 Except for self-defence, the exclusive means to resolve breaches of international peace is recourse to the Security Council under Ch. VII, Arts. 39–51. Chapters XII–XIII are inapplicable to the extant question. 4. The Meaning of the Term ‘People’29 Following the principle of construction to give words their ordinary meaning, the Oxford / Collins English Dictionary defines the term ‘people’ as follows: 1) ‘persons collectively or in general;’ and 2) ‘a group of persons considered together’ unified by some common element. The term ‘people’ is to be distinguished from the term ‘the people’ that has the following meanings: 1) ‘the mass of persons without special distinction, privileges, etc.;’ and 2) ‘the body of persons in a country, esp. those entitled to vote.’30 The French text arguably provides a more precise definition of the term ‘people.’ The Larousse Dictionnaire de la Langue Française provides: ‘[A]n ensemble of persons constituting a social or cultural community.’31 Finally, the Russian text provides the most compelling definition of the term ‘people,’ as distinct from a nation state, by reference to those persons who possess the same language, interests, inhabit a particular region, and ethnic background.32 The common thread among the three definitions is that ‘people’ refers to distinct groups of persons sharing a range of common traits that unite them together. A persuasive event from American history illustrates the ordinary meaning of the term ‘people:’ the Mayflower Compact, regarded as the first constitutional document of North America. While en route to America, the Mayflower was occupied by Pilgrims and non-Pilgrims. When conflicts arose during the voyage and peril threatened its success, the ‘people’ of the Mayflower entered into a covenant under which they would be governed. The non-Pilgrims did not want to be ruled by the Puritans, and the Puritans realized the importance of unification, thereby resulting in a mutually acceptable pact. 28

 U.N. Charter, Art. 4, para. 1.

29

 This part of the Article is the most contentious; relations between Ukraine and the Russian Federation are deep, complex, and political. Further complicating matters is the evasive meaning of the term ‘ethnic group,’ loosely equivalent to the term ‘people.’ In any event, no citation will soften the inflexible position of West Ukrainians. In addition, Posner explains the inherent flaws of reliance upon dictionary definitions. Posner, supra n. 22, at 180.

30

 Collins Dictionary, (accessed Mar. 7, 2015).

31

 Dictionnaire de la langue française compact (Larousse 1995).

32

 Даль В. Толковый словарь живого великорусского языка [Dal' V. Tolkovyi slovar’ zhivogo velikorusskogo yazyka [Vladimir Dal, Explanatory Dictionary of the Living Great Russian Language]], (accessed Mar. 7, 2015).

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The United States Declaration of Independence arguably contains the most celebrated use of the term ‘people.’ The Declaration provides: When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another . . . they should declare the causes which impel them to the separation (emphasis added). The simple explanation of the term ‘one people’ is a reference to the members of the thirteen colonies. Without undertaking a deviation into American history, the members of the colonies were ‘one people’ only to support the separation from the British Empire; they certainly were not one people in other respects. They were composed of the ‘haves’ and ‘have-nots,’ divided along lines of industrial and agricultural economies, and slave-holding and non-slave-holding States. Slaves per se were not regarded as persons entitled to legal protections. The two examples from American history indicate that the term ‘people’ encompasses those people united by a common situation and single or multiple purposes, often under duress. The term ‘people’ often is deemed equivalent to the term ‘ethnic group.’ However ‘ethnicity’ evades definition, more problematically than the term ‘people.’ ‘Ethnic group’ is a ‘socially defined category of people who identify with each other based on common ancestral, social, cultural or national experience.’33 There are at least five independent criteria to define an ‘ethnic group:’ 1) race; 2) religion; 3) language; 4) political identity; and 5) regional / geographic identity.34 In the absence of science, based upon genetic studies, that is, shared DNA among people, ethnicity is reduced to ‘self-identification,’ a definition that is an absurd tautology. The firmest ground to posit a ‘people’ is the scientific study of race and genetics.35 The invisible hand of evolution arguably is responsible for conventions collectively understood as social instincts and culture. Russians are an East Slavic ethnic group native to Russia whose language is Russian.36 ‘Genetic studies show that modern Russians do not differ significantly from Poles, Slovenians, or Ukrainians.’37 Approximately, eight 33

 Ethnic Group, Wikipedia, (accessed Mar. 7, 2015).

34

 Id.

35

 Nicholas Wade, What Science Says about Race and Genetics, Time (May 9, 2014), (accessed Mar. 7, 2015). This view accords with Richard Dawkins explanation of evolution as set forth in Richard Dawkins, The Selfish Gene (30th ed., Oxford University Press 2006), idem, The Blind Watch Maker (Penguin 1986), and idem, The Extended Phenotype (Penguin 1982). There is no reason to think that human behaviour, including its creation of legal systems, is exempt from the power of evolution.

36

 Russians, Wikipedia, (accessed Mar. 7, 2015).

37

 Id. (with reference to Oleg Balanovsky et al., Two Sources of the Russian Patrilineal Heritage in Their Eurasian Context, 82(1) Am. J. Hum. Genet. (2008) doi:10.1016/j.ajhg.2007.09.019).

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million Russians live in present Ukraine.38 An observer has stated: ‘One should keep in mind that Russians and Ukrainians, together with the Byelorussians of Byelorus just north of Ukraine, are historically one people, each however with its linguistic and cultural differences.’39 Nevertheless, science does not draw the borders of Nation States; that matter generally is left to history. 5. Why Residents of Eastern and Southern Ukraine Constitute a ‘People’ The territory of what is called ‘Ukraine,’ inhabited for at least 44,000 years, has a lengthy, tumultuous history. Except for modern Ukraine, successive external empires ruled the constantly morphing territory. The term ‘Oukraina,’ commonly understood th as borderlands, ‘first appeared in historical documents of the 12 century and then on history maps of the 16th century period.’40 The term ‘Oukraina’ implies the absence of critical mass required to establish a single unitary State, as demonstrated by the history of Ukraine. In 1654, while certain territories of present Ukraine were under Polish rule, Bohdan Khmelnytsky signed the ‘Treaty of Pereyaslav,’ forming a military and political alliance with Russia to protect Cossack controlled territory, called the ‘Zaporozhian Host.’41 After the war with Poland, the latter gave Kyiv and the Cossack lands, east of the Dnieper, to Russia. ‘Most of Ukraine fell to the Russian Empire under the reign of Catherine the Great (1729–1796); in 1793 right-bank Ukraine was annexed by Russia in the Second Partition of Poland.’42 Excepting a fleeting period after World War II, Ukraine was never an independent country.43 Various powers controlled the territory of present Ukraine and the latter never was a political entity of its own; arguably, Russia controlled and ruled Ukraine from 1654 until 1917. The Russian Revolution opened a period of civil war in the region designated ‘Ukraine.’ Subsequently, during the period 1919–22, central parts of what is ‘now known’ as Ukraine became the Ukrainian Soviet Socialist Republic and in 1922 became a member of the USSR.44 At this time, Lenin decided to integrate ‘Novorossiya’ into the Ukrainian SSR.45 After World War II, the Ukrainian SSR increased by absorption 38

 Russians, supra n. 36.

39

 Gaither Stewart, Russia and Eurasia: Who Are the Russians?, Global Research (Aug. 29, 2014), (accessed Mar. 7, 2015).

40

 History of Ukraine, Wikipedia, (accessed Mar. 7, 2015).

41

 Id.

42

 Id.

43

 Id.

44

 This territory is illustrated at (accessed Mar. 7, 2015).

45

 Novorossiya, Wikipedia, (accessed Mar. 7, 2015).

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of the western territories, including the Carpathians. In 1954, Nikita Khrushchev, who from 1938 until 1949 served as the First Secretary of the Communist Party of the USSR, by fiat gave the Crimea to Ukraine. Ukraine became an independent nation after the collapse of the USSR in 1991. While one may parse the history of Russia and Ukraine, Archpriest Andrei Tkachev has stated: ‘The word “Ukrainian” was seldom used in the Russian empire until 1917. Both Belarusians and Ukrainians were considered Russians – inhabitants of White Russia [future Belarus] and Little or South Russia [future Ukraine].’ Tkachev adds: ‘One of the biggest problems of modern Ukraine is that it does not want to learn from history, which it has shared with Russia for at least 300 years. Many Ukrainians think that this is not THEIR history, that it was forced on them, so one should not learn from it. This is a mistake.’46 In addition, in 1991, many persons who formerly held the nationality of Russia in their USSR passports suddenly were Ukrainians, without having anything to do with Ukraine except accidental location. Ukraine’s linguistic map is telling for parsing Ukraine. Russian is the dominant language in the following provinces: 1) Lugansk, and 2) Donetsk, where more than 66% of residents identified Russian as their native tongue. A substantial portion (41–65%) of residents of three additional provinces identified Russian as their native language: 1) Kharkiv, 2) Zaporizhia, and 3) Odessa. A significant portion (11–40%) of residents of four additional provinces identified Russian as their native language: 1) Sumy, 2) Dnepropetrovsk, 3) Kherson, and 4) Mykolayiv.47 If language is the driving factor of national identity, as in the case of Latvia and Estonia, then it follows that the linguistic statistics of Eastern and Southern Ukraine provide a ground to posit a ‘people’ within the meaning of public international law. Further, the political preferences of Eastern and Southern Ukrainians differ from other regions of Ukraine.48 The current political conflict is over whether the country will lean toward the European Union or the Russian Federation. A November 2013 poll found that 45% of those questioned expressed a desire to join the EU, 14% expressed a desire to join the tri-lateral Eurasian Customs Union, and 41% were undecided. The divide primarily comprises differences of political preference between Eastern and Southern Ukraine and the remainder of Ukraine. Noteworthy is the rise of UltraNationalism in Westhern Ukraine and Ultra-Nationalists holding political office, softly recalling Ukraine’s collaboration with Nazi Germany. 46

 Dmitry Babich, Russia and Ukraine: A Painful Rift with History, Sputnik International (Aug. 28, 2014), (accessed Mar. 7, 2015).

47

 Ukrainian Census 2001, Wikipedia, (accessed Mar. 7, 2015).

48

 Max Fischer, This One Map Helps Explain Ukraine’s Protests, The Washington Post (Dec. 9, 2013), (accessed Mar. 7, 2015).

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Consequently, residents of Eastern and Southern Ukraine constitute a ‘people’ on three grounds: 1) language; 2) shared history with Russia; and 3) political preference to strengthen ties with the Russian Federation thereby distinguishing themselves from residents of other Ukraine provinces. 6. The Delict It is common ground that distinctly sharp political preferences divide Eastern and Southern Ukraine from Western Ukraine. These differences are profound and arguably beyond settlement by negotiation. Eastern and Southern Ukraine, often referred to as ‘Russian speaking’ oblasts, seek closer ties with the Russian Federation, while West Ukraine seeks closer ties, if not, admission, to the European Union. These political objectives are polar opposites. These differences escalated into conflict in November 2013 when ‘Euromaidan,’ a political movement whose name derives from the main square in Kiev where demonstrations were held, protested against the government’s decision to suspend talks with the EU and resume negotiations with the Russian Federation to join the tri-lateral Customs Union.49 In February 2014, the protest culminated in what is deemed the February 2014 Revolution. President Yanukovych and his Party of Regions were removed from office.50 Olexander Turchynov became the transitional President of the Ukraine. The new Government was not only pro-West but also extremely conservative, if not ultra-nationalist.51 Illustrations include: Arseniy Yatsenyuk, Prime Minister (member of the Fatherland Party); Oleksander Sych, Deputy Prime Minister (member of the far-right nationalist Freedom Party); Arsen Avakov, Interior Minister (member of the Fatherland Party); Andriy Parubiy, National Security Chief (member of the Fatherland Party), and Dmitry Yarosh, Deputy National Security Chief (member of far-right nationalist Freedom Party).52 Naturally, but notably absent, is any official representing the minority parties. The Poroshenko government, though comprised of different personnel, has followed through on the interim government’s promise to sign an ‘historic’ trade deal with 49

 Euromaidan, Wikipedia, (accessed Mar. 7, 2015).

50

 Under one observer’s well-reasoned argument, the removal of Yanukovych did not accord with law; the interim government is illegitimate, and the Russian Federation has not violated any principle of public international law. The reader is Stefan Soesanto. Ashley Deeks, Russia in Ukraine: A Reader Responds, LAWFARE (Mar. 5, 2014), (accessed Mar. 7, 2015).

51

 Turchynov was closely associated with Yulia Tymoshenko. ‘WikiLeaks documents suggest that during his [Turchynov’s] role as security service chief in 2005 he destroyed documents that allegedly implicated Tymoshenko as having links to organised crime – allegations she has always denied,‘ but the source of her personal wealth and rise as an oligarch are shrouded in mystery. Harriet Salem, Who Exactly is Governing Ukraine?, The Guardian (Mar. 4, 2014), (accessed Mar. 7, 2015).

52

  Id.

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the European Union. Prime Minister Arseniy Yatsenyuk’s extreme nationalist stance against the Russian Federation is consistent with the post-Yanukovych regime.53 The East and South then raised the question of creating a federation, maintaining that Ukraine was not a single unitary State.54 Laws then were enforced to criminalize expressions of dissent against the government.55 Professor James Petras states: ‘They [Kiev Government] moved ahead and outlawed the pro-Russian speaking minority and that provoked people in the east who were long time critics of centralism and the imposition of policies from the west (Kiev).’56 Any person supporting the concept of ‘federalization’ was labeled a ‘separatist’ or ‘terrorist.’ In addition, the government conducted discussions to limit the use of the Russian language.57 Initially, East and West peacefully protested against these government initiatives. During this period, ‘Euromaidan’ took by force administrative buildings in the East and West.58 In response, Anti-Maidan groups followed suit by seising government buildings in the East, insisting on federalization of Ukraine, and retaining the Russian language.59 Subsequently, Donetsk and Lugansk proposed to hold referenda on April 6, 2014, to join the Russian Federation.60 On April 14, 2014, Turchynov authorised military action against ‘separatists’ in the East and South thereby leading to civil war.61 On May 11, 2014, the DPR held a referendum to approve ‘self-rule’ supported by 89% of voters. 53

 David Blair, Russians Are Trying to ‘Eliminate’ Our Country, Says Ukrainian Prime Minister, The Telegraph (Sep. 13, 2014), (accessed Mar. 7, 2015).

54

 Pro-Russian Protesters Storm Donetsk Offices, BBC News (May 12, 2014), (accessed Mar. 7, 2015); and Ukraine’s East on Fire: Kharkov Demands Referendum, Donetsk’s Prosecutor’s HQ Stormed, RT (Mar. 16, 2014), (accessed Mar. 7, 2015).

55

 Law and Disorder, Law and Disorder Radio (May 17, 2014), (accessed Mar. 7, 2015).

56

 Id.

57

 On February 23, 2014, the second day after the flight of Viktor Yanukovich, while in a parliamentary session, a deputy from the Fatherland Party, Vyacheslav Kyrylenko, moved to include in the agenda the bill to repeal the 2012 Law ‘On the Principles of the State Language Policy.’ The motion was carried with 86% of the votes in favor – 232 deputies in favor vs. 37 opposed against the required minimum of 226 of 334 votes. The bill was included in the agenda, immediately put to a vote with no debate and approved with the same 232 voting in favor. The bill would have made Ukrainian the sole state language at all levels. Language Policy in Ukraine, Wikipedia, (accessed Mar. 7, 2015).

58

 Seizure of Police Building in Krasnyi Liman, Eastern Ukraine, Youtube.com (Apr. 12, 2014), (accessed Mar. 7, 2015).

59

  Euromaidan, supra n. 49.

60

 Donbass Status Referendums, 2014, Wikipedia (accessed Mar. 7, 2015).

61

 Ukraine Says Donestk ‘Anti-Terror’ Operation under Way, BBC News (Apr. 15, 2014), (accessed Mar. 7, 2015).

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That same day, LPR held an identical referendum, supported by 96.2% of voters. On May 22, 2014, the confederate state of Novorossiya was proclaimed, incorporating both the DPR and the LPR. In spite of the ‘cease fire’ agreement, Poroshenko has continued the ‘anti-terror’ military campaign under conditions that are not required to respect the Geneva Conventions. ‘Both sides accuse each other of continuing the fighting and breaking the ceasefire.’62 On May 2, 2014, more than 40 persons were murdered in the city of Odessa in what is called the ‘Odessa Massacre.’63 ‘Anti-Kyiv protestors were ambushed, trapped, butchered, shot, beaten to death, and some were possibly raped, by the neo-nazis of Right Sector, backed by the Kyiv government, and their street armies – ultras, mainly from Kharkov. This has been the best-documented massacre in history, but it is considered by “civilized” leaders as “law enforcement.”’64 Firefighters and police failed to stop the violence, and carry out their functions to protect citizens. The photographs and video film of the episode depict burned bodies, show Maidan supporters making Molotov cocktails, and Maidan and Right Sector activists blockading the building to prevent any person from escaping. Whatever spin Western media wants to place on this event, by providing alternative interpretations of images, one conclusion is beyond doubt: delict by omission and the countenance of murder. The war in Donbass has left substantial casualties of dead and captured. According to the separatists, the Donbass region has suffered 1,017 killed and 1,200 captured.65 According to the Government, the Donbass region has suffered 2,000 killed and 310 captured. The statistics do not distinguish between ‘insurgents’ and civilians, including women and children, and fail to include wounded. The government’s military action designed solely to preserve a unitary State has killed civilians, displaced populations, and destroyed property, including hospitals and schools. Ukraine is a signatory to the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims on Non-International Armed Conflicts.66 Article 4 provides fundamental guarantees for non-combatants 62

 Ukrainian President Attacks ‘Fake’ Elections Planned by Rebels in East, Euronews (Oct. 19, 2014), (accessed Mar. 7, 2015).

63

 The Odessa Massacre – What Really Happened, SCG News (May 12, 2014), (accessed Mar. 7, 2015).

64

 Jennifer Baker, Neo-nazi Massacre in Odessa, May 2, 2014 – Video Blog *Graphic* – Behind Ukraine’s Walls of Fire, Revolution News! (May 31, 2014), (accessed Mar. 7, 2015) (noting that ‘[o]n May 2, 2014 anti-Kyiv protestors were ambushed, trapped, butchered, shot, beaten to death, and some were possibly raped, by the neo-nazis of Right Sector, backed by the Kyiv government, and their street armies – ultras, mainly from Kharkov’).

65

 War in Donbass, Wikipedia, (accessed Mar. 7, 2015).

66

 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims on Non-International Armed Conflicts (Protocol II), Jun. 8, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].

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and children who shall be protected against acts of violence, terrorism, and infringements of their human rights. Article 7 provides protection for the wounded and sick by requiring sufficient medical care. Article 9 protects medical and religious personnel from interference in the performance of their duties. Article 13 prohibits attacks against civilian populations, and protects any object necessary for the survival of the civilian population. Ukraine has violated each Article of the Protocol II as the following select events illustrate: 1) October 1, 2014, Ukraine military forces attacked Donetsk, and specifically targeted school No. 57 and a nearby bus stop. At least one teacher and more than 10 bystanders died or injured in the attack.67 As of September 1, 2014, in Donetsk alone, 93 schools, 11 colleges, nine university buildings, and 27 kindergartens were partially or fully destroyed;68 2) since the start of hostilities, numerous churches were destroyed and several priests were killed and or subjected to torture;69 3) Ukraine military forces indiscriminately bombed civilian buildings, and did not confine their mission to buildings controlled by the ‘separatists;’70 4) Ukraine military action destroyed public services, food supplies, and impeded the provision of humanitarian aid;71 and 5) unlawful arrests and torture of civilians.72 International law does not recognize the notion of a ‘lawful combatant’ in a noninternational armed conflict.73 Government forces usually have an advantage in terms 67

 Кровавый День знаний в Донецке унес жизни более 10 человек [Krovavyi Den’ znanii v Donetske unes zhizni bolee 10 chelovek [Bloody Day of Knowledge in Donetsk: More Than 10 People Killed]], NTV, (Oct. 1, 2014) (accessed Mar. 7, 2015).

68

 Почти сотня школ и 30 детсадов были разрушены в Донецке из-за обстрелов [Pochti sotnya shkol i detsadov byli razrusheny v Donetske iz-za obstrelov [Nearly a Hundred Schools and 30 Kindergartens Were Destroyed in Donetsk because of Shelling]], RIA Novosti Ukraina (Sep. 1, 2014), (accessed Mar. 7, 2015).

69

 Храмы и священники, пострадавшие на востоке Украины [Khramy i svyashchenniki, postradavshie na vostoke Ukrainy [Churches and Priests Affected in Eastern Ukraine]], PRAVMIR.RU (Aug. 25, 2014, (accessed Mar. 7, 2015).

70

 В Донецке под обстрел попал детский сад [V Donetske pod obstrel popal detskii sad [In Donetsk Kindergarten Subject to Attack]], TV Tsentr (Oct. 2, 2014), (accessed Mar. 7, 2015).

71

 Красный Крест не смог доставить гумпомощь в Луганск из-за обстрела [Krasnyi Krest ne smog dostavit’ gumpomoshch v Lugansk iz-za obstrela [Red Cross Could Not Deliver Humanitarian Aid to Lugansk because of Firing of Missiles]], RIA Novosti Ukraina (Sep. 6, 2014), (accessed Mar. 7, 2015).

72

 Бывшая пленная медсестра рассказала о пытках украинских силовиков [Byvshchaya plennaya medsestra rasskazala o pytkakh ukrainskikh silovikov [Former Captured Nurse Told about Tortures by Ukrainian Armed Forces]], Khar’kov – Novostnoe agentstvo (Nov. 2, 2014), (accessed Mar. 7, 2015).

73

 Peter Rowe, Freedom Fighters and Rebels: The Rules of Civil War, 95(1) J. R. Soc. Med. (2001), available at (accessed Mar. 7, 2015).

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of military equipment and manpower. Rebels are deemed ‘terrorists.’74 However, although public international law provides rules of war mainly for international conflicts, the ethical principles embodied in the Geneva Conventions may be applied by analogy to the internal Ukraine conflict.75 Without the application, even by analogy, of the law of armed conflict, a government of a Nation State may not, without compunction, bomb the opposition into submission, and then prosecute, convict, and punish insurgents for a spectrum of crimes against the State. Underlying the political strife is the energy assets in East Ukraine. Ukraine’s role as a transit country for gas supplied to the EU and the discovery of shale gas fields in the East and West are matters that cannot be overstated, since it raises EU gas security issues. In 2013, Gazprom delivered $ 10 billion worth of gas to Ukraine.76 Due to mismanagement and corruption, Naftogaz Ukrayiny, has run up debt of $ 3.3 billion to Gazprom. Ukraine’s financial condition as demonstrated by its ‘balance of payments’ is not sustainable. In addition, Ukraine’s ‘total shale gas deposits are estimated around 7 trillion cubic meters, which places the country at the third place in Europe after Poland and Norway.’77 The largest shale gas field is located in ‘Eastern Ukraine [Donetsk and Kharkiv regions] in the Dnipro-Donbas petroleum basin.’ Royal Dutch Shell entered into a contract with the Donetsk and Kharkiv regional councils without consultation, and over the objection, of local stakeholders. Royal Dutch Shell would have to commit up to $ 50 billion in foreign investment to develop the gas field, begin production, and recover its investment. Economic interests often, if not consistently, underlie shifts in political status and armed conflict, and stand in stark contrast to the language of ethics and morality found in political and legal texts.78 In the context of the present Ukraine crisis, the economic interest at stake is ‘oil and gas.’ Michael Hudson, a renowned economist, has stated: 74

 In theory obviated by the Minsk Protocol, supra n. 2.

75

 Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75. U.N.T.S. 287 (providing protection to hospitals and children located in territories of conflict).

76

 Simon Pirani et al., What the Ukrainian Crisis Means for Gas Markets, The Oxford Institute for Energy Studies (Mar. 10, 2014), (accessed Mar. 7, 2015).

77

 Tania Marocchi & Taras Fedriko, Shale Gas in Poland and Ukraine: A Great Potential and Uncertain Future, PECOB, (accessed Mar. 7, 2015).

78

 In the context of decolonisation, John Kenneth Galbraith writes: ‘The engine of economic well-being was now within and between the advanced industrial countries. Domestic economic growth – as now measured and much discussed – came to be seen as far more important than the erstwhile colonial trade . . . The economic effect in the United States from the granting of independence to the Philippines was unnoticeable, partly due to the Bell Trade Act, which allowed American monopoly in the economy of the Philippines. The departure of India and Pakistan made small economic difference in Britain. Dutch economists calculated that the economic effect from the loss of the great Dutch empire in Indonesia was compensated by a couple of years or so of domestic post-war economic growth. The end of the colonial era is celebrated in the history books as a triumph of national aspiration in the former colonies and of benign good sense on the part of the colonial powers. Lurking beneath, as so often happens, was a strong current of economic interest – or in this case, disinterest.’ New World Encyclopedia,

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The basic principle to bear in mind is that finance today is war by non-military means. The aim of getting a country in debt is to obtain its economic surplus, ending up with its property. The main property to obtain is that which can produce exports and generate foreign exchange. For Ukraine, this means mainly the Eastern manufacturing and mining companies, which presently are held in the hands of the oligarchs. For foreign investors, the problem is how to transfer these assets and their revenue into foreign hands – in an economy whose international payments are in chronic deficit as a result of the failed post-1991 restructuring.79 The United States and the European Union are engaged in a new ‘Cold War’ against Russia. Consequently, the central government of Ukraine has committed acts of delict sufficient to give rise to a derivative right of the ‘people’ of the East and South to make a pragmatic choice as to their political affiliation. 8. Eastern and Southern Ukraine Have a Right to Secede from Ukraine The population of the Eastern and Southern Ukraine are a ‘people’ within the meaning of the ICCPR and ICESCR since the term ‘people’ encompasses ‘persons’ by its ordinary language (the preambles) and distinct groups of persons within a single nation state. Recourse to recognized dictionaries is dispositive. Hence, there is no need to go outside the four corners of these conventions. The population in Eastern and Southern Ukraine constitute a class of persons, in other words a ‘people,’ tied together by language, culture, religion, ethnicity, and economic interest. The claim that the ICCPR and ICESCR were designed for decolonization is unpersuasive. Dworkin instructs: ‘ignore authorial intent.’80 The treaties were adopted at a time when decolonization was well established. Equally significant, decolonisation has nothing to do with protecting human dignity of persons within the colonies, but with the economic interests of former colonial powers in newly independent states.81 Put simply, the colonies are worth more in trade and commerce to colonial powers as independent nations, than as colonies. (accessed Mar. 7, 2015) (citing John K. Galbraith, A Journey Through Economic Time: A Firsthand View (Houghton Mifflin 1994)). 79

 Michael Hudson, No to Currency Slavery (Jul. 10, 2014), (accessed Mar. 7, 2015).

80

 Posner supports the interpretation of legal texts independent from author and historical context. Posner, supra n. 22, at 19.

81

 Galbraith, supra n. 78.

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The UN Charter does not prohibit secession and therefore the Charter is not dispositive. In addition, the ICJ Decision in Kosovo, while not a precedent, arguably provides support for regional Ukrainian secession. The ICJ noted: ‘During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-selfgoverning territories and peoples subject to alien subjugation, domination and exploitation.’82 The ICJ found that nothing in international law prohibits secession, and stated that ‘general international law contains no applicable prohibition of declarations of independence’ thereby holding that the Kosovo declaration of independence was consistent with international law. Although the Decision of the ICJ is rooted in the particular historical circumstances of Kosovo / Serbia and UN Resolutions, the ICJ concluded, ‘that the adoption of the declaration of independence of 17 February 2008 [by Kosovo] did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework.’83 Combined with the ICCPR and ICESCR, people, under given circumstances, have a right to secession. Therefore, the view that secession is solely an internal matter must be rejected.84 A central thread of secession is oppression and abuse of a minority ‘people’ by a majority ‘people.’ Take the Civil War in the USA as an illustration. While there are myriad reasons why Southern States seceded from the ‘Union,’ a central tenet was the imposition by the Northern States of a political, economic, and social regime that was anathema to the South, including non-Slave owning Southerners. Under public international law, as understood today, Lincoln may be regarded as a war criminal for authorizing the killing not only of Southern soldiers but also of civilians and the destruction of property as demonstrated by Sherman’s ‘March to the Sea.’ The government of Ukraine has abrogated its obligations under both the ICCPR and ICESCR by failing to provide a mechanism to ensure that ‘self-determination’ is handled internally without armed conflict. Treating the ‘separatists’ as enemies of the State and ‘terrorists’ (a term that international law cannot even define), and authorizing the use of military force to kill its own citizens, including violations of Protocol II, amounts to undeniable breaches of Arts. 2(1)–(2) of the ICCPR and Arts. 2(1)–(2) ICESCR. 82

 Advisory Opinion, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 I.C.J. 403, 436.

83

 Id. at 452.

84

 This article rejects the view of Professor Borgen who has stated that ‘[t]he norm of self-determination is not a general right of secession. It is the right of a people to decide on their culture, language, and government. It has evolved into the concepts of ‘‘internal self-determination,’‘ the protection of minority rights within a state, and ‘‘external self-determination,’‘ secession from a state. While selfdetermination is an internationally recognized principle, secession is considered a domestic issue that each state must assess itself.’ Borgen, supra n. 6, at 6.

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Therefore, the ‘separatists’ in East and South Ukraine have a right to secede from Ukraine. The ‘separatists’ are a ‘people’ within the ordinary meaning of that term; they have suffered harm by the mother state and the reply of the mother State to launch a military operation against the ‘separatists’ is adequate proof of Kiev’s lack of diplomatic initiative. Secession need not lead to a new state since given the linguistic, cultural, and historical ties with Russia, the separatists may seek a pragmatic solution by seeking annexation to an already existing Nation State – the Russian Federation. 9. Text Based Argument Legal texts are autonomous objects, accessible to understanding without the reader’s having to know, at a profound depth, about the drafters’ intentions and the historical circumstances in which the text came into being.85 Refusal to follow this critical approach results in endless, and futile debate, about what terms meant decades, if not centuries ago. If history of a region is woven into the picture, then the interpretive process is destined for failure, as it would be unlikely to achieve a widespread consensus. The extant public international law texts are sufficient to yield a plausible answer to the question of whether Eastern and Southern Ukraine have a legal right to secede. Legal rules are best conceived in instrumental terms: ‘contestability, revisability, and mutability.’86 In the case of Ukraine, what is done is done. The separatist ‘republics,’ the large swathe of territories, or whatever one calls the regions in Eastern and Southern Ukraine are not coming back to post-1991 Ukraine as preferred by the United States and the European Union. The pragmatic answer is clear: acknowledge autonomy for Eastern and Southern Ukraine based on popular vote. 10. The Illegality of Economic Sanctions against the Russian Federation Article 39 of the United Nations Charter provides: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Article 41 further provides: 85

 Posner, supra n. 22, at 19.

86

 Id. at 29.

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The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. The 1970 Declaration provides: No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure form it advantages of any kind. The United States and the European Union, among other UN members, have imposed economic sanctions upon the Russian Federation for its alleged interference in the internal affairs of Ukraine. The Security Council of the United Nations has not made any fact-finding resolution that the Russian Federation has violated a principle of international law. In addition, the Security Council has not authorized the implementation of economic sanctions against the Russian Federation. Therefore, based upon member state obligations, the economic sanctions imposed by the United States, the European Union and other sovereign States are illegal. An elusive question is what has the Russian Federation in fact done to interfere in the internal affairs of Ukraine as to justify any UN sanction? The argument may be turned upside down and it may be argued that the United States and the European Union have interfered in the internal affairs of Ukraine, therefore violating their public international law obligations. Hence, the economic sanctions against the Russian Federation violate the United Nations Charter and may violate WTO obligations.87 11. Conclusion The Ukraine has violated the rights of the people of Eastern and Southern Ukraine, under the ICCPR and ICESCR, not to mention the soft law of the Universal Declaration of Human Rights. Given the breach of its treaty obligations and its reliance on military force, the ‘people’ of Eastern and Southern Ukraine, under the ordinary meaning of the terms ‘people’ and ‘self-determination,’ have a right to secede from Ukraine to vindicate their political, social and economic rights. Notwithstanding legal niceties, 87

 General Agreement on Tariffs and Trade, Oct. 30, 1947, Art. XX, 61 Stat. A-11, 55 U.N.T.S. 194, does not provide an exception from the Most-Favoured-Nation principle based on political differences. Neither does the United Nations Convention on Contracts for the International Sale of Goods that may apply to the sale of goods between France and the Russian Federation.

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Ukraine has an obligation to give complete autonomy to the ‘people’ of Eastern and Southern Ukraine that no longer support political dominion from Kiev. De facto it is done. Thus leaving the question does de jure have any meaning left in this crisis. Second, it follows that the USA and EU, members of the UN, cannot take unilateral action against a State purportedly acting contrary to UN principles without a resolution of the Security Council that first requires a finding of the ‘crime of aggression’ addressed in Art. 5(d) of the Rome Statute or at the least ‘aggression.’ This defiance of UN procedures of due process brings into question the validity of USA, EU, and any other country imposing sanctions against the Russian Federation. Statements by the United States and the European Union that the activity in the separatist zone constitutes a breach of international law or national Ukrainian law requires full substantiation. Propaganda disseminated by the United States and European Union to justify intervention into the internal affairs of Ukraine is a violation of UN Charter principles.88 Security Council approval is required to impose economic sanctions against the Russian Federation. References Balanovsky, Oleg, et al. Two Sources of the Russian Patrilineal Heritage in Their Eurasian Context, 82(1) Am. J. Hum. Genet. (2008). doi:10.1016/j.ajhg.2007.09.019 Blair, David. Russians Are Trying to ‘Eliminate’ Our Country, Says Ukrainian Prime Minister, The Telegraph (Sep. 13, 2014), (accessed Mar. 7, 2015). Borgen, Christopher J. Thawing a Frozen Conflict: Legal Aspects of the Separatist Crisis in Moldova: A Report from the Association of the Bar of the City of New York 6, 34, 37–38 (St. John’s University, Legal Studies Research Paper #06-0045), at (accessed Mar. 7, 2015). Burke, John J.A. Political Foundation of Law and the Need for Theory with Practical Value: The Theories of Ronald Dworkin and Roberto Unger 178 (Austin & Winfield 1992). Christakis, Théodore. Les conflits de secession en Crimée et dans l’est de l’Ukraine et le droit international, 2014(3) Journal du droit international (Clunet) 23. th Copi, Irving M., & Cohen, Carl. Introduction to Logic 145 (12 ed., Pearson Education, Inc. 2008). Dawkins, Richard. The Blind Watch Maker (Penguin 1986). Dawkins, Richard. The Extended Phenotype (Penguin 1982). 88

 While the Russian Federation vetoed a UN Security Council Resolution declaring the March 2014 referendum on the future of the Crimean peninsula illegal, the UN has not issued any resolutions regarding sanctions against the Russian Federation related to the separatist movement in Eastern and Southern Ukraine.

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Dawkins, Richard. The Selfish Gene (30th ed., Oxford University Press 2006). Deeks, Ashley. Russia in Ukraine: A Reader Responds, LAWFARE (Mar. 5, 2014), (accessed Mar. 7, 2015). Galbraith, John K. A Journey Through Economic Time: A Firsthand View (Houghton Mifflin 1994). Mancini, Susanna. Secession and Self-Determination, in The Oxford Handbook of Comparative Constitutional Law ch. 23, at 491 (Michel Rosenfeld & András Sajó, eds.) (Oxford University Press 2012), available at (accessed Mar. 8, 2015). Miller, Geoffrey P. Pragmatics and the Maxims of Interpretation, 1990 Wis. L. Rev. 1179. Minsk Protocol, Wikipedia, (accessed Mar. 7, 2015). Pirani, Simon, et al. What the Ukrainian Crisis Means for Gas Markets, The Oxford Institute for Energy Studies (Mar. 10, 2014), (accessed Mar. 7, 2015). Posner, Richard A. Law and Literature 19, 29, 180, 243 (Harvard University Press 1970). Pro-Russian Protesters Storm Donetsk Offices, BBC News (May 12, 2014), (accessed Mar. 7, 2015). Rowe, Peter. Freedom Fighters and Rebels: The Rules of Civil War, 95(1) J. R. Soc. Med. (2001), available at (accessed Mar. 7, 2015). Salem, Harriet. Who Exactly is Governing Ukraine?, The Guardian (Mar. 4, 2014), (accessed Mar. 7, 2015). Information about the authors John J.A. Burke (Almaty, Kazakhstan) – Professor of Law and Director of the LL.M. Programme at Almaty Management University, School of Law (227 Rozybakiev str., Almaty, 050060, Republic of Kazakhstan; e-mail: [email protected]). Svetlana Panina-Burke (Almaty, Kazakhstan)  – Diploma in Mechanical Engineering, Ukrainian State Marine Technical University (1997), Independent (227 Rozybakiev str., Almaty, Republic of Kazakhstan; e-mail: [email protected]).

Building Human Rights, Peace and Development within the United Nations

Christian Guillermet Fernández, Permanent Mission of Costa Rica in the United Nations in Geneva (San José, Costa Rica),

David Fernández Puyana, Permanent Mission of Costa Rica in the United Nations in Geneva (Barcelona, Spain)

War and peace have perpetually alternated in history. Consequently, peace has always been seen as an endless project, even a dream, to be in brotherhood realized by everyone across the earth. Since the XVII century the elimination of war and armed conflict has been a political and humanitarian objective of all nations in the world. Both the League of Nations and the United Nations were conceived with the spirit of eliminating the risk of war through the promotion of peace, cooperation and solidarity among Nations. The Universal Declaration of Human Rights and the subsequent human rights instruments were drafted with a sincere aspiration of promoting the value of peace and human rights worldwide. International practice shows the close linkage between the disregard of human rights and the existence of war and armed conflict. It follows that the role of human rights in the prevention of war and armed conflict is very important. Since 2008 the Human Rights Council has been working on the ‘Promotion of the Right of Peoples to Peace.’ Pursuant resolutions 20/15 and 23/16 the Council decided firstly to establish, and secondly to extend the mandate of the Open-Ended Working Group (OEWG) aimed at progressively negotiating a draft United Nations declaration on the right to peace. The OEGW welcomed in its second session (July 2014) the approach of the ChairpersonRapporteur, which is basically based on the relationship between the right to life and human rights, peace and development. Keywords: war; right of peoples to peace; Human Rights Council; General Assembly; Open-Ended Working Group; right to life in peace; human rights and development. DOI: 10.17589/2309-8678-2015-3-1-58-91

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1. Introduction Last year 2014 Russia was commemorating the 150 Anniversary of the Judicial Reforms carried out by Alexander II. This judicial reform is generally considered as one of the most successful of all the legal reforms in Russia. A completely new court system and a completely new order of legal proceedings were established. In addition, Alexander II will be recalled as one of the most relevant statesmen of the XIX century who brought peace, prosperity and stability in the European continent. His vision about the creation of an international order based on cooperation, peace and friendly relations among nations decisively influenced the inception of the most important intergovernmental world organizations in the XX century (i.e. League of Nations and the United Nations). In light of his approach about the promotion and strengthening of peace through the adoption of different laws and treaties, the article will analyze the outlaw of war and armed conflict during the latest centuries and how the outstanding endeavours of the peace movements have decisively framed the current international order. In particular, the Hague Conventions, the Covenant of the League of Nations, the Charter of the United Nations and the International Bill of Human Rights are considered relevant legal instruments whose main purpose is the realization of peace and consequently, the progressive elimination of war and armed conflict across the earth. Afterwards, the linkage between human rights and armed conflict in the context of the recent practice of the Security Council and the Human Rights Council [hereinafter HRC] will also be studied. In addition, the role played by respect of the human rights instruments in the prevention of war and armed conflict will also be analyzed. Finally, the promotion of the right of peoples to peace as a means to enforce the linkage between the right to life and the three pillars of the United Nations (i.e. human rights, peace and development) within the Human Rights Council will also be studied. In particular, the article will briefly refer to the approach proposed by the Chairperson-Rapporteur of the OpenEnded Intergovernmental Working Group on the Right to Peace, which is aimed at finding the necessary consensus among all different stakeholders on this topic within the United Nations. 2. The Outlaw of War and Armed Conflict War became a part of human society a long time ago, and for many centuries it dominated historical records. Men became warriors because it went with the job of being a prince or lord, and foot soldiers because it went with the job of being a lord’s servant. Because most people are peaceable and peace-loving, and no-one wants to be killed, anyone would think that war would be universally regarded as the human race’s greatest tragedy.

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As stated by Mr. Christian Guillermet-Fernández in the Conference Henri Lafontaine1 held at the Uppsala University (Sweden) on December 11, 2013, the aspiration to create a society in which war plays little or no part in the life of our fellows have fired human imagination throughout the history of mankind. It follows that we are obliged to see that war and peace perpetually alternate and that peace is always an endless project, even a dream, to be in brotherhood realized by everyone over the earth. In three thousand years, from 1,500 BC to 1860, eight thousand peace treaties have been signed.2 The existence of a peace treaty is clear evidence that the total triumph of peace over conflict has still not occurred and that peace is always in a state of project and perspective. Therefore, the champions of peace have obtained only half-triumphs in their attempts to reach a more peaceful world, because ‘peace has always conducted to a war.’3 Since the XVIIth century the State-system in the world has developed through war and peace, and specially the signature of Treaties of Peace, which have had as their main purpose to conclude multiple wars. Well-known scholars, until the creation of the League of Nations there have existed three main periods of peace treaties,4 namely: firstly, from Westphalia in 1648 to the recognition of American Independence in 1783, in which the treaties were focused on the interests of sovereigns and reigning families;5 secondly, from 1793 to 1859, in which there was an increasing recognition of the rights of States6 and thirdly, from 1859 to 1919, in which attention was paid to the new principles of international law (i.e. right of nationalities, not necessarily races, but populations whose languages, literature, habits and customs and religious worship, are different from surrounding populations). Despite that there have been many attempts to achieve peace in different regions of the world, and in particular the European continent, there are only a few times the Europeans have enjoyed transient success.7 Most wars in the latest centuries have 1

 Christian Guillermet-Fernández, Peace as a Human Right?, Conference Henri Lafontaine ‘Challenges for a Peaceful World: An Agenda for the XXIst Century’ (Uppsala universitet, Dec. 11–13, 2013).

2

 See George Valbert, La guerre et la paix perpétuelle, 1894(122) Revue des Deux Mondes 692, available at (accessed Mar. 9, 2015).

3

 See Gaston Bouthoul, Huit mille traités de paix 12–13 (René Julliard 1948).

4

 See Walter G.F. Phillimore, Three Centuries of Treaties of Peace and Their Teaching 1–9 (Little, Brown & Co. 1919).

5

 Treaty of Pyrenees (1659): between Spain and France; Treaty of Oliva (1660): nations bordering on the Baltic; Treaties of Aix-la-Chapelle (1668), Nimeguen (1678) and Ryswick (1679): borders in France; Treaty of Utrecht (1713): it was one of the first treaties which dealt with the French colonial possessions in America; Treaty of Versailles (1783): it established the independence of the United States.

6

 Treaty of Campo Formio (1797): it divided the territories of Venice between Austria and France; Congress of Vienna (1815): it concluded a period of twenty-three years of warfare under the leadership of Napoleon I.

7

 See Phillimore, supra n. 4, at 1–9.

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been caused because of the vanity of Heads of State to maintain in a thoughtless way the combative instinct of their peoples. All the glorious and provocative exhibitions of force and war have developed in the minds of the human population through the conquest of other territories.8 During the XIXth century outstanding endeavours were undertaken by the international community to limit the suffering caused to the wounded military personnel on the battlefields and to alleviate its effects. In 1864 the first treaty on the protection of military victims of warfare was drawn up and signed in Geneva on the initiative of Henry Dunant. All treaties and covenants on international humanitarian law later adopted throughout the XXth century were not focused on the real problems caused by armed conflicts or the multiple issues raised by war, but only in those rules needed to bring a better protection for the vulnerable victims of warfare.9 In 1899 the so-called‘The Peace Conference,’ which took place at the Hague, adopted several important Conventions and Declarations10 with the aim of strengthening the international mechanisms aimed at promoting the pacific settlement of disputes,11 the regulation of the laws and customs of war by land,12 maritime warfare13 or the prohibition of some special projectiles, explosives and bullets.14 Afterwards, the second conference, held again at the Hague in 1907, adopted thirteen treaties15 and also did prefigure later XXth-century attempts at international cooperation. 8

 See Louis Eichner, La paix des peoples ou essai d’une Confédération Internationale 33–34 (Librairie Marcel Rivière 1922).

9

 In 1949 four Geneva Conventions, which are still in force today, were adopted, each of them dealing with the protection of a specific category of persons who are not, or are no longer, taking part in hostilities: first Convention – on the care of the wounded and sick members of armed forces in the field; second Convention – on the care of the wounded, sick and shipwrecked members of armed forces at sea; third Convention – on the treatment of prisoners of war; and fourth Convention – on the protection of civilian persons in time of war.

10

 See Thomas Barclay, Problems of International Practice and Diplomacy with Special Reference to the Hague Conferences and Conventions and Other General Agreements 1–21 (Sweet & Maxwell Ltd. 1907).

11

 Convention (I) for the Pacific Settlement of International Disputes.

12

 Convention (II) with Respect to the Laws and Customs of War on Land.

13

 Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864.

14

 Three Declarations on the following matters: 1) prohibition of the launching of projectiles and explosives from balloons or by other similar new methods; 2) prohibition of the use of projectiles the only object of which is the diffusion of asphyxiating or deleterious gases; and 3) prohibition of the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope, of which the envelope does not entirely cover the core, or is pierced with incisions.

15

 Convention (I) for the Pacific Settlement of International Disputes; Convention (II) Respecting the Limitation of the Employment of Force for Recovery of Contract Debts; Convention (III) Relative to the Opening of Hostilities; Convention (IV) Respecting the Laws and Customs of War on Land; Convention (V) Relative to the Rights and Duties of Neutral Powers and Persons in Case of War on Land; Convention (VI) Relative to the Legal Position of Enemy Merchant Ships at the Start of Hostilities; Convention (VII)

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The Martens Clause,16 introduced into the Preamble to the 1899 Hague Convention (II) on Laws and Customs of War on Land and after slightly modified in the 1907 Hague conventions, proclaimed that [u]ntil a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. The clause, which was enunciated by Fyodor Fyodorovich Martens, the Russian delegate at the Hague Peace Conferences, was included in the additional protocols of 1977, and in particular in Art. 1(2) of Protocol I17 (which covers international conflicts) and para. 4 of the Preamble to Protocol II18 (which covers non-international conflicts).19 In addition, although several national and international courts have considered the Martens Clause in their judgments,20 in none of these cases have the laws of humanity Relative to the Conversion of Merchant Ships into War-ships; Convention (VIII) Relative to the Laying of Automatic Submarine Contact Mines; Convention (IX) Concerning Bombardment by Naval Forces in Time of War; Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention (of 6 July 1906); Convention (XI) Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War; Convention (XII) Relative to the Establishment of an International Prize Court; Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War. 16

 Friedrich Fromhold Martens was a diplomat and jurist in service of the Russian Empire who made important contributions to the science of international law. He represented Russia at the Hague Peace Conferences and helped to settle the first cases of international arbitration.

17

 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Jun. 8, 1977, 1125 U.N.T.S. 3.

18

 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims on Non-International Armed Conflicts (Protocol II), Jun. 8, 1977, 1125 U.N.T.S. 609.

19

 The wording in both is identical but slightly modified from the version used in the Hague Convention of 1907: ‘Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience.’

20

 Decision of the US Military Tribunal III in Nuremberg on February 10, 1948, in the case United States v. Krupp; Decision of the Netherlands Court of Cassation on January 12, 1949, in the procedure against SS-Obergruppenführer Hanns Rauter, general commissioner for the safety organization in the Netherlands from 1940 to 1945; Decision of the Brussels Military Court in the K.W. case on February 8, 1950; Decision of the International Criminal Tribunal for the Former Yugoslavia on March 8, 1996, over the permission of the accusation during the process against Milan Martić; Decision of the Constitutional Court of Colombia of May 18, 1995, for the constitutionality of Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts; The International Court of Justice in the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, issued on July 8, 1996; Judgment of the German Federal Constitutional Court on October 26, 2004, for the compatibility of the expropriations in the former Soviet zone of occupation between 1945 and 1949 with international law.

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or the dictates of the public conscience been recognised as a new and independent right. The clause has served as guideline to the understanding and interpretation of existing rules of international law. The Hague Conventions of 1899 and 1907 continue to stand as symbols of the need for restrictions on war and the desirability of avoiding it altogether. After World War II, the judges at Nuremberg Trials found that by 1939, the rules laid down in the 1907 Hague Convention were recognised by all civilized nations and were regarded as declaratory of the laws and customs of war. On June 28, 1919, the Peace Treaty of Versailles was signed as a conclusion of World War I. In accordance with its Preamble, the promotion of international co-operation and the achievement of peace and security in the world should be achieved by the following means: firstly, the acceptance of obligations not to resort to war; secondly, the prescription of open, just and honorable relations between nations; thirdly, the firm establishment of the understandings of international law as the actual rule of conduct among Governments; and fourthly, the maintenance of justice and a scrupulous respect for all treaty obligations. In addition, it was recognised in its Art. 8, in line with the first Hague Conference of 1899,21 that ‘the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations.’ The Preamble of the Covenant of the League of Nations is still far from banning absolutely the phenomenon of war. The drafters of the Covenant of the League did not dare to condemn all wars, because they still conceived war as a means to reach other political interests.22 The right to war was recognised and regrettably legitimized only in certain cases in the Covenant. The formal condemnation of war, as an indispensable condition for the maintenance of peace, was unfortunately muted.23 The Covenant only imposes Member States to respect the following obligations before resorting to war, namely: submission of the dispute to arbitration or inquiry to the Council,24 establishment of a Permanent Court of International Justice25 or good 21

 The first Hague Conference held in 1899 adopted unanimously the following resolution: ‘The Conference is of opinion that the restriction of military budgets, which are at present a heavy burden on the world, is extremely desirable for the increase of the material and moral welfare of mankind.’

22

 See Heinrich Rauchberg, Les obligations juridiques des membres de la société des nations pour le maintien de la paix (= 37 Recueil des cours) 66–67 (Académie de droit international 1932).

23

 See Ali A. Akhavi, L’Echec de la S.D.N. dans l’organisation pratique de la paix ses causes, son avenir 123–124 (Librairie du Recueil Sirey 1937).

24

 Article 12: ‘The Members of the League agree that if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or to inquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the report by the Council. In any case under this Article the award of the arbitrators shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute.’

25

 Article 14: ‘The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent

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offices by the Secretary General.26 In the case that some Member decides to resort to war in disregard of the previous provisions, then the League shall ipso facto condemn them for having committed an act of war against all other Members of the League.27 On January 16, 1920, the birth of the new world will be recorded in history, because the League of Nations held its first session and definitively substituted the reign of force by the rule of law. The fathers of the new political and juridical structure, among them President Woodrow Wilson, wanted to construe the architecture of the future humankind over the accumulated ruins derived from war.28 As recalled by the participants at the Conference, ‘[w]e do not despair of constituting such a Society of Nations for the abolition of war. We hope, indeed, that something of the kind may be created in our own day. There is no need for haste . . .’29 On October 16, 1925, several nations30 adopted the Treaty of Mutual Guarantee or the so-called Locarno Pact by which they mutually undertook in its Art. 2 that they will in no case attack or invade each other or resort to war against each other, with the exception of the following situations, namely: the right of legitimate defense, an action taken in pursuance of Art. 16 of the Covenant of the League of Nations or an action as the result of a decision taken by the Assembly or by the Council of the League of Nations. In this line, on September 24, 1927, the VIII Assembly of the League of Nations adopted a resolution by which Member States banned all wars of aggression and recalled their obligation to settle the disputes by peaceful means. The renunciation of war as an instrument of national policy was successfully banned for the first time in history in 1928 thanks to efforts made by the Foreign Ministers of France and United States of America. Signatory states of the famous Briand-Kellogg Pact promised not to use war to resolve disputes or conflicts. Since this agreement was concluded outside the League of Nations, it still remains a binding to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.’ 26

 Article 15: ‘. . . Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary General, who will make all necessary arrangements for a full investigation and consideration thereof. For this purpose the parties to the dispute will communicate to the Secretary General, as promptly as possible . . .’

27

 Article 16: ‘Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13, or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nations and the nationals of the covenant-breaking State, and the prevention of all financial, commercial, or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not . . .’

28

 See Léon Bourgeois, L’Œuvre de la Société des Nations (1920–1923) 10–11 (Payot 1923).

29

 See Henry N. Brailsford, A League of Nations 15 (2nd ed., Macmillan Co. 1917), available at (accessed Mar. 9, 2015).

30

 Germany, Belgium, France, Great Britain and Italy.

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treaty under international law. Indeed, the treaty is perpetual as it contains no clause of limitation and no provision for determination or denunciation.31 It follows that the condemnation of war as a legal provision is currently in force and it should therefore be taken into consideration by the international community. The Pact against war is one of the shortest international treaties in the contemporary diplomatic history. It is composed only by two main dispositions, the condemnation of war (Art. 1) and the obligation of States to settle their disputes by peaceful means (Art. 2). The selfish and voluntary war was totally outlawed by this international agreement. Nevertheless, in accordance with the treaty, the use of force would only be possible in case of self-defense or between those States signatories and no-signatories of the treaty. After its final adoption, sixty countries adhered to the treaty, which demonstrates that the peace hopes in that time were deeply rooted in the world.32 Additionally, on January 15–17, 1928, American States attending the Sixth International Conference held in La Havana (Cuba) also adopted a resolution which expressed unqualified condemnation of war as instrument of national policy. At the opening session of the United Nations Conference, which took place in San Francisco (United States) on April 25, 1945, President Truman stated in his inaugural speech that ‘[i]f we do not want to die together in war, we must learn to live together in peace.’ The United Nations is a response to the two world wars and the intention of the member States ‘to save succeeding generations from the scourge of war . . .’33 In order to create a more peaceful world, the Charter of the United Nations established in its Arts. 1 and 2 the following ‘Purposes and Principles,’ inter alia: the prohibition of acts of aggression or other breaches of the peace, the development of friendly relations among nations, the self-determination of peoples, the enhancement of international co-operation, the promotion of human rights and fundamental freedoms, the settlement of international disputes by peaceful means, the prohibition of threat or use of force against the territorial integrity or political independence of any state. These Principles codified in the opening articles of the Charter constitute the basic foundational principles of the whole body of international law. The Purposes and Principles of the UN Charter have been expressly included in the Declaration on Preparation of Societies for Life in Peace34 of 1978, the Declaration 31

 See David Hunter Miller, The Peace Pact of Paris: A Study of the Briand-Kellogg Treaty 148 (G.P. Putnam’s Sons 1928); André N. Mandelstam, L’Interprétation du pacte Briand-Kellogg par les gouvernements et les parlements des États signataires 1–24 (A. Pedone 1934).

32

 See Cécile Balbareu, Le Pacte de Paris (pacte Briand-Kellogg sur le mise de la guerre hors la loi): Thèse de doctorat 73–78 (Librairie universitaire J. Gamber 1929).

33

 U.N. Charter, Preamble, para. 1.

34

 1) Qualification of the war of aggression as a crime against peace: UNGA Resolution 95 (I) on planning, preparation, initiation or waging of a war of aggression, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States and the UNGA Resolution 3314 (XXIX) on the definition of aggression; 2) strengthening of the cooperation in peace: Charter of the

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on the Right of Peoples to Peace35 of 1984 and the Declaration on a Culture of Peace36 of 1999. In addition, all these peace laws strongly demanded that the policies of States be directed toward the elimination and eradication of war,37 the prohibition of propaganda for war,38 and moral disarmament.39 On November 10, 1998, the UNGA adopted Resolution 53/25 ‘International Decade for a Culture of Peace and Non-Violence for the Children of the World (2001– 2010)’40 by which it stated (Preamble, para. 5): United Nations; 3) respect of the right of self-determination of peoples, independence, sovereignty, territorial integrity and independence: Declaration on the Granting of Independence to Colonial Countries and Peoples, the Declaration on the Strengthening of International Security and the Declaration on the Deepening and Consolidation of International Détente. 35

 1) Reaffirmation that the principal aim of the United Nations is the maintenance of international peace and security; 2) reaffirmation of the fundamental principles of international law set forth in the Charter of the United Nations; 3) it emphasizes that ensuring the exercise of the right of peoples to peace demands that the policies of States be directed towards the renunciation of the use of force in international relations and the settlement of international disputes by peaceful means on the basis of the U.N. Charter (Art. 3).

36

 1) Recalled in its Preamble the Charter of the United Nations, including the purposes and principles embodied therein; 2) recognized also in its Preamble that peace not only is the absence of conflict, but also requires a positive, dynamic participatory process where dialogue is encouraged and conflicts are solved in a spirit of mutual understanding and cooperation; 3) a culture of peace is a set of values, attitudes, traditions and modes of behaviour and ways of life based on the full respect for the principles of sovereignty, territorial integrity and political independence of States and non-intervention in matters which are essentially within the domestic jurisdiction of any State, in accordance with the Charter of the United Nations and international law; the respect for and promotion of all human rights and fundamental freedoms and the commitment to peaceful settlement of conflicts (Art. 1); 4) the fuller development of a culture of peace is integrally linked to the promotion of peaceful settlement of conflicts, mutual respect and understanding and international cooperation; the compliance with international obligations under the Charter of the United Nations and international law; the promotion and universal respect for and observance of all human rights and fundamental freedoms; development of dialogue, negotiation, consensus-building and peaceful resolution of differences and the realization of the right of all peoples, including those living under colonial or other forms of alien domination or foreign occupation, to self-determination (Art. 2).

37

 Declaration on the Right of Peoples to Peace, Preamble, para. 3: ‘Expressing the will and the aspirations of all peoples to eradicate war from the life of mankind and, above all, to avert a world-wide nuclear catastrophe;’ Art. 3: ‘Emphasizes that ensuring the exercise of the right of peoples to peace demands that the policies of States be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use of force in international relations and the settlement of international disputes by peaceful means on the basis of the Charter of the United Nations.’

38

 Declaration on Preparation on Societies to Life in Peace, Preamble: ‘Further recalling the Universal Declaration of Human Rights, of 10 December 1948,/8 as well as the International Covenant on Civil and Political Rights, of 16 December 1966,/9 and bearing in mind that the latter states, inter alia, that any propaganda for war shall be prohibited by law;’ Art. I(3): ‘In accordance with the purposes and principles of the United Nations, States have the duty to refrain from propaganda for wars of aggression;’ Art. II(a)(2): ‘Therefore, to discourage and eliminate incitement to racial hatred, national or other discrimination, injustice or advocacy of violence and war.’

39

 Declaration on a Culture of Peace, Preamble, para. 2: ‘Recalling also the Constitution of the United Nations Educational, Scientific and Cultural Organization, which states that “since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed.”’

40

 G.A. Res. 53/25, U.N. GAOR, 53rd Sess., Supp. No. 49 I, U.N. Doc. A/RES/53/25 (1998), at (accessed Mar. 9, 2015).

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Aware that the task of the United Nations to save future generations from the scourge of war requires transformation towards a culture of peace, which consists of values, attitudes and behaviours that reflect and inspire social interaction and sharing based on the principles of freedom, justice and democracy, all human rights, tolerance and solidarity, that reject violence and endeavour to prevent conflicts by tackling their root causes to solve problems through dialogue and negotiation and that guarantee the full exercise of all rights and the means to participate fully in the development process of their society. The Charter of the United Nations states clearly that the threat or use of force against other States is unlawful. Since 1945, war has no longer been an acceptable way to settle differences between States. However, the Charter has not completely outlawed the use of force. Indeed, States retain the right to defend themselves, individually or collectively, against attacks on their independence or their territory, in response to a (legal or illegal) use of force. The Charter’s prohibition of the use of force does not encompass internal armed conflicts (or civil wars). Chapter VII of the Charter allows member States the use of force in collective action to maintain or restore international peace and security. According to Uppsala University’s Conflict Data Program [hereinafter UCDP], in 2012 there were registered 32 active armed conflicts, which is a reduction by five since the year before. Six of these conflicts41 reached the intensity of ‘War.’42 Despite this the total number of battle-related deaths increased dramatically during the year. Only at six times in the 24 years that have passed since the end of the Cold War has UCDP reported higher levels. On January 20, 2014, the Permanent Mission of Costa Rica in Geneva stated in the context of the special session on the Republic of Central Africa that a day like today we should ask the international community why they do not recognize by consensus a right to peace as it would enable us to act effectively in the prevention of human rights violations in situations, such as the RCA lives today. If it is not possible, unless the international community and in particular this Council should make efforts to work on the prohibition or progressive abolition of war and conflict as the best vaccine against the systematic violations of human rights in conflict situations. All human beings have the right to live in a context in which peace, human rights and development are fully respected.

41

 Afghanistan, Pakistan, Somalia, Sudan, Syria and Yemen.

42

 An ‘armed conflict’ is defined as ‘a contested incompatibility that concerns government and / or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths in one calendar year.’ If more than 1,000 battlerelated deaths are recorded in one calendar year the conflict has reached the intensity of ‘War.’

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Since we have not yet developed a society that is prepared to acknowledge and entirely reject war as an option, the international community has always elaborated international rules which limit the effects of war. In the latest years, civil society movements have promoted the adoption of important legal instruments aimed at protecting the population in a context of warfare and also limiting the trade and use of certain arms.43 Although the pacifist movements were not capable of avoiding World Wars in the XXth century or other wars during the Cold War times and after, they have been very successful in their efforts to limit certain effects derived from war. Nowadays the international community has the legal resources to eliminate progressively war and armed conflicts over the earth through the respect of international law, the promotion of the culture of peace and the friendship among all peoples and nations. The United Nations should again proclaim that war is unlawful from the legal perspective, as well as totally incompatible with peace and a clear abuse of human rights, and in particular the right to life. Additionally, taking into account that in a situation of armed conflict, fundamental freedoms are gravely violated, then the parties in conflict should respect the main ratified international human rights instruments during the military confrontation. To solve this matter on February 27, 2012, the UNGA adopted Resolution 66/99 on effects of armed conflicts on treaties (i.e. human rights law) by which the International Law Commission stated that ‘[t]he existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties’ (Art. 3); ‘[t]he existence of an armed conflict does not affect the capacity of a State party to that conflict to conclude treaties in accordance with international law’ (Art. 8(1)) and ‘[t]he termination of or the withdrawal from a treaty, or the suspension of its operation, as a consequence of an armed conflict, shall not impair in any way the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law in dependently of that treaty’ (Art. 10). 3. The Linkage between Human Rights and War and Armed Conflict In accordance with the latest practices of the Security Council, the classical security threats have been principally focused on proliferation and arms control, terrorism, internal armed conflict and piracy. However, the protection of individuals has increasingly emerged as an additional goal. It follows that the Security Council has also begun to focus on particular groups of civilians, namely women and children, and their protection in armed conflict.44 43

 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (Ottawa, 1997); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Paris, 1993) and the Arms Trade Treaty (New York, 2013).

44

 UNSC Resolution 1325 (October 31, 2000); UNSC Resolution 1820 (June 19, 2008); UNSC Resolution 1888 (September 30, 2009); UNSC Resolution 1960 (December 16, 2010); UNSC Resolution 1612 (July 26, 2005); and UNSC Resolution 1882 (August 4, 2009).

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In regard to human rights violations, most of the commentators and States in the early years objected that such violations were considered as potential threats to peace. Currently, all cases involving large-scale violence ‘do not lend themselves to broader conclusions on whether human rights violations in and of themselves can constitute threats to peace.’45 However, the Security Council has recently recognised that non-military sources of instability should be also considered as threats to peace and security: The absence of war and military conflicts among States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social and humanitarian and ecological fields have become threats to peace and security. The United Nations membership as a whole, working through the appropriate bodies, needs to give the highest priority to the solution of these matters.46 At the 2005 World Summit the world leaders reaffirmed their commitment to the universal and indivisible nature of human rights.47 The increasing importance attributed to human rights within the constitutional structure of the United Nations is evidenced by the creation of the HRC alongside the Security Council and Economic and Social Council. Although the HRC was not elevated to a principal organ, its status was raised by establishing it as a subsidiary organ of the UNGA. On January 1, 2014, His Holiness Pope Francisco stated in his message on the celebration of the world day of peace that [w]e cannot however fail to observe that international agreements and national laws – while necessary and greatly to be desired – are not of themselves sufficient to protect humanity from the risk of armed conflict. A conversion of hearts is needed which would permit everyone to recognize in the other a brother or sister to care for, and to work together with, in building a fulfilling life for all.48 45

 See 2 The Charter of the United Nations: A Commentary ¶ 1.286 (Bruno Simma et al., eds.) (3rd ed., Oxford University Press 2012).

46

 Note by the President of the Security Council, at 3, U.N. Doc. S/23500 (1992), at (accessed Mar. 9, 2015).

47

 2005 World Summit Outcome, G.A. Res. 60/1, U.N. GAOR, 60th Sess., Supp. No. 49 I, ¶ 121, U.N. Doc. A/Res/60/1 (2005), at (accessed Mar. 9, 2015): ‘We reaffirm that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing and that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all human rights and fundamental freedoms.’

48

 XLVII World Day of Peace 2014: Fraternity, the Foundation and Pathway to Peace, (accessed Mar. 9, 2015).

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In accordance to the Preamble of Resolution 60/251 creating the HRC, development, peace and security and human rights are interlinked and mutually reinforcing.49 However, the UNGA clearly decided that the Council should address situations of gross and systematic violations of human rights50 and also contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies.51 Because of human rights violations in conflict situation, the HRC has convened several special sessions at the request of one third of the membership of the HRC.52 Most of these sessions have finished with the adoption upon consensus of a resolution, by which the HRC decided to dispatch a fact-finding mission or independent commission of inquiry with the mandate to assess the human rights situation in the specific country in conflict. These missions are usually comprised by one or several highly qualified persons, whose are appointed by the President of the HRC after consulting with the members of the HRC. In particular, the HRC has created upon consensus in its special sessions some human rights mechanisms to monitor the implementation of the respective resolutions in Darfur,53 Myanmar,54 Democratic Republic of the Congo,55 Cote d’Ivoire,56 Libyan Arab Jamahiriya57 and Central African Republic.58 49

 G.A. Res. 60/251, U.N. GAOR, 60th Sess., Supp. No. 49 III, Preamble, para. 6, U.N. Doc. A/RES/60/251 (2006), at (accessed Mar. 9, 2015): ‘[P]eace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being, and recognizing that development, peace and security and human rights are interlinked and mutually reinforcing.’

50

  Id. ¶ 3.

51

  Id. ¶ 5(f ).

52

  Id. ¶ 10.

53

 Situation of Human Rights in Darfur, U.N. Human Rights Council Dec. S-4/101, U.N. Doc. A/HRC/S-4/101 (December 13, 2006), at (accessed Mar. 9, 2015).

54

 Situation of Human Rights in Myanmar, U.N. Human Rights Council Res. S-5/1, U.N. Doc. A/HRC/RES/ S-5/1 (October 2, 2007), at (accessed Mar. 9, 2015).

55

 Situation of Human Rights in the East of the Democratic Republic of the Congo, U.N. Human Rights Council Res. S-8/1, U.N. Doc. A/HRC/RES/S-8/1 (December 1, 2008), at (Mar. 9, 2015).

56

 Situation of Human Rights in Cote d’Ivoire in Relation to the Conclusion of the 2010 Presidential Election, U.N. Human Rights Council Res. S-14/1, U.N. Doc. A/HRC/RES/S-14/1 (December 23, 2010), at (accessed Mar. 9, 2015).

57

 Situation of Human Rights in the Libyan Arab Jamahiriya, U.N. Human Rights Council Res. S-15/1, U.N. Doc. A/HRC/RES/S-15/1 (February 25, 2011), at (accessed Mar. 9, 2015).

58

 Situation of Human Rights in the Central African Republic and Technical Assistance in the Field of Human Rights, U.N. Human Rights Council Res. S-20/1, U.N. Doc. A/HRC/S-20/1 (January 20, 2014), at (accessed Mar. 9, 2015). 59

 Statement delivered by Spain (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); Chile (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)).

60

 Statement delivered by Sierra Leone (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)); Philippines and Peru (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Mexico and Chile (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); Nigeria on behalf of African Group and Spain (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)).

61

 Statement delivered by the European Union, African Group, Pakistan, France, New Zealand, Latvia (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Netherland and Republic of Korea (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Jordan, European Union, Sweden, th Spain and Austria (HRC 14 Spec. Sess. on Cote d’Ivoire (December 23, 2010)); France, Norway, Chile, Bulgaria, Honduras, Denmark, Belgium, Republic of Korea, Slovakia, United States of America, Thailand and United Kingdom (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); Israel (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

62

 Statement delivered by Germany, Republic of Korea, Switzerland, Greece, Denmark, Liechtenstein (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Pakistan, the United Kingdom, Switzerland, Bolivia and Italy (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Peru, Republic of Korea and United Kingdom (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); Iran and Canada (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); Latvia, Liechtenstein and Thailand (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

63

 Statement delivered by Niger (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

64

 Statement delivered by Mexico (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)).

65

 Statement delivered by Argentina (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)).

66

 U.N. Charter, Art. 39.

67

 U.N. Security Council Res. 1714 (2006), U.N. Doc. S/RES/1714 (October 6, 2006), at (accessed Mar. 9, 2015).

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Republic of the Congo,68 Cote d’Ivoire,69 Libyan Arab Jamahiriya70 and Central African Republic71 has not focused on specific matters of human rights, with the exception of a reference to the obligation of States to protect women and children in armed conflict, or even the population in general. The main purpose of the above resolutions is to make a call for all parties to the conflict to end violence, strengthen dialogue, sign a peace agreement, foster a transition process or create humanitarian corridors to assist population. As indicated by the HRC, in a context of war and armed conflict, there is always a gross and systematic violation of all human rights and fundamental freedoms,72 including extrajudicial killings, summary executions, sexual violence, looting, forced displacement, large-scale of arrest, abductions, forced recruitment of children, beatings, disappearance, torture, arbitrary detention, forced labour practices or lack of fundamental economic rights (i.e. food, water, medicines).73 In particular, the 68

 U.N. Security Council Res. 1857 (2008), U.N. Doc. S/RES/1857 (December 22, 2008), at (accessed Mar. 9, 2015).

69

 U.N. Security Council Res. 1962 (2010), U.N. Doc. S/RES/1962 (December 20, 2010), at (accessed Mar. 9, 2015).

70

 U.N. Security Council Res. 2016 (2011), U.N. Doc. S/RES/2016 (October 27, 2011), at (accessed Mar. 9, 2015).

71

 U.N. Security Council Res. 2134 (2014), U.N. Doc. S/RES/2134 (January 28, 2014), at (accessed Mar. 9, 2014).

72

 Statement delivered by Peru, Italy, Mexico, Greece, Norway, Chile (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Switzerland, African Union, Pakistan, United Kingdom, Ghana, Panama, Maldives, Belgium (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Jordan, Egypt, Sweden, Australia, European Union, Norway, United States of America, Maldives, Republic of Korea, Brazil, Burkina Faso, Mauritius (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); Zambia, European Union, Indonesia, Switzerland, France, Malaysia, Argentina, Netherland, Azerbaijan, African Union, Estonia, United States of America (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); Norway, Japan, Malaysia, Belgium, Jordan, Republic of Korea, Guatemala, Germany, Honduras, Turkey, OIC, Liechtenstein, Romania, Afghanistan, African Union, Iran, Bulgaria, Canada, Lithuania, Costa Rica, Portugal, South Africa, Sweden, Luxembourg (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); Peru, Chile, United Kingdom of Great Britain, Algeria, Germany, Gabon, Montenegro, United States of America, Japan, Italy, Morocco, Romania, Austria, Estonia, South Africa, Viet Nam, Republic of Congo, Brazil, Togo, Lithuania, Spain, Belgium, Norway, Canada, Hungary, Slovakia, Holy See, Luxembourg, Paraguay, Chad, Israel (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

73

 Statement delivered by France, Peru, Switzerland, Australia, Norway, Sweden, Luxembourg, Denmark, Finland, Czech Republic, Slovakia, Poland, Belgium (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Switzerland, United Kingdom, Zambia, Canada, Italy, Slovakia, Chile, Ghana, Argentina, Germany, Uruguay, Republic of Korea, Nigeria, Norway, Denmark, Holy See, Ireland, Panama, Finland, Israel, New Zealand, Maldives, Belgium (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Austria, Spain, European Union, United Kingdom, Norway, United States of America, Maldives, Republic of Korea, Brazil, Mauritius, Zambia, Switzerland, Mexico, Chile (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); Sudan, Ghana, Germany, France, United Kingdom, Poland, Canada, UNFPA, Ireland, Albania, Sweden, Chad, UNICEF, Slovakia, Luxembourg, UNHCR, Slovenia, Norway (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); European Union, Nigeria, France, Poland, Maldives, Uruguay, Spain, Belgium, Jordan, Ireland, Netherland, Indonesia, Denmark, Liechtenstein, Romania, Bulgaria, Portugal, South Africa (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); African Union, European Union, Mexico, Argentina, France, Czech Republic, United Kingdom of Great Britain, Ireland, Germany, Montenegro, United States of America, Morocco, Austria, Mexico, Estonia,

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right to life and security of people and their fundamental dignity is always under threat, even violated, in this type of dreadful situation.74 To achieve a genuine peace and stability, the country in conflict should firstly immediately cease all type of violence (i.e. cease-fire).75 Secondly, States should re-establish again the full respect and implementation of fundamental rights and freedoms76 and thirdly, to identify the most appropriate solutions for a peaceful settlement of the crisis and to promote a national dialogue and reconciliation.77 South Africa, Viet Nam, African Union, Lithuania, Spain, Belgium, Australia, Norway, Hungary, Slovakia, Luxembourg, Croatia, Latvia, Paraguay, Poland, Niger, Liechtenstein, Switzerland (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)). 74

 Statement delivered by Romania, Netherland, Australia, Denmark, Colombia, Poland, Belgium (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Holy See (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Turkey, Switzerland, Mexico (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); Zambia, Senegal, Albania, United States of America (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); European Union, Maldives, Norway, Jordan, Slovakia, Guatemala, Ecuador, Netherland, Germany, India, Australia, Turkey, Liechtenstein, New Zealand, Colombia, Iran, Lithuania (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); Holy See (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

75

 Statement delivered by the United Kingdom, Germany, Romania, Indonesia, Mexico, Netherland, New Zealand, Finland, Chile, Poland (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Switzerland, Pakistan, India, United Kingdom, Canada, Italy, Angola, Ghana, Bangladesh, Germany, Uruguay, Indonesia, Nigeria, Norway, Holy See, Ireland, Finland, New Zealand (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Ecuador, Indonesia, Austria, Peru, Sweden, European Union, Norway, Maldives, Republic of Korea, Brazil, Malaysia (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); Algeria, European Union, Switzerland, Malaysia, United Kingdom, Poland, India, Senegal, Azerbaijan, Egypt, Democratic People’s Republic of Korea, Ireland, African Union, Luxembourg, UNHCR, Brazil, Australia, Chile, Iran, United States of America, Hungary, Norway (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); Pakistan, France, Poland, Norway, Chile, Japan, Malaysia, Angola, Belgium, Jordan, Slovakia, Netherland, Peru, OIC, Afghanistan, Colombia, African Union, Bulgaria, Canada, Lithuania, Costa Rica, Czech Republic, Sweden, Luxembourg (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); African Union, Republic of Congo, the United Kingdom, Indonesia, Germany, Italy, Estonia, Sierra Leone, Maldives, South Africa, Brazil, Turkey, Egypt, Tunisia, Croatia, Latvia, Thailand, Poland, UNICEF, th Switzerland (HRC 20 Spec. Sess. on the Central African Republic (January 20, 2014)).

76

 Statement delivered by Zambia, France, United Kingdom, Germany, Romania, Republic of Korea, Australia, Greece, New Zealand, Denmark, Slovakia, Colombia, Belgium, Estonia (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Netherland, Italy (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Ecuador (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); Argentina, Iran (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); the United Kingdom, Mexico, Maldives, Chile, Argentina, Republic of Korea, United States of America, Thailand, Netherland, India, Indonesia, Australia, Holy See, Paraguay, Bolivia, Lithuania, Costa Rica, Czech Republic (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); European Union, Mexico, Indonesia, Germany, Egypt (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

77

 Statement delivered by Romania, Republic of Korea, Indonesia, Mexico, Netherland, Greece, Singapore, Thailand, Norway, Morocco, Denmark, Chile, Slovakia, Latvia, Poland, Belgium (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Holy See, New Zealand (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Indonesia, Maldives, Brazil, Chile (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); South Africa (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); Angola, Cuba, Switzerland, Bangladesh, Nicaragua, Indonesia, Turkey, Peru, New Zealand, Paraguay, Bolivia, Iran, Bulgaria, Portugal, South Africa, Sweden (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); African Union, Mexico, Argentina, Germany, Italy, Sierra Leone, Maldives, Mexico, Venezuela, Cuba, Republic of Congo, Brazil, African Union, Turkey, Tunisia, Spain, Angola, Canada, Slovakia, Thailand, Paraguay (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

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At the 7015th meeting of the Security Council, held on August 6, 2013, in connection with the Council’s consideration of the item entitled ‘Cooperation between the United Nations and Regional and Subregional Organizations in Maintaining International Peace and Security,’ the President of the Security Council stressed the importance of a coordinated international response to causes of conflict and recognized the need for the development of effective long-term strategies aimed to eradicating poverty, strengthening development cooperation and assistance and promoting respect for human rights and fundamental freedoms.78 Additionally, the HRC has stressed that the roots of conflicts which have recently shaken some specific countries, where population live below poverty, are not new.79 In accordance with the statements delivered by the different stakeholders during the Special Sessions, States should apply long-term strategies for development,80 reduce poverty,81 finish with the impunity / rule of law82 and strengthen international

78

 Statement by the President of the Security Council, at 2, U.N. Doc. S/PRST/2013/12 (2013), at (accessed Mar. 9, 2015).

79

 African Union, Pakistan, Bangladesh, Norway (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Brazil (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

80

 Sudan (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); Cuba, Mexico, Luxembourg (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Cuba, Bolivia, Algeria, Sudan (HRC 8th Spec. Sess. on Democratic th Republic of the Congo (November 28, 2008)); Brazil (HRC 14 Spec. Sess. on Cote d’Ivoire (December th 23, 2010)); Brazil (HRC 15 Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); Ireland, Cuba, Indonesia, Brazil, Canada, Holy See, Paraguay (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

81

 United Kingdom of Great Britain, Cuba, New Zealand (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Cuba, Bolivia (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Brazil, Angola, Cuba (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); Central African Republic, Ireland, Cuba, Sierra Leone, Brazil (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

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 Finland, Switzerland, France, Argentina, Finland, Netherland, Ireland, Slovakia, Luxembourg, Portugal, Estonia, United States of America, Slovenia, Hungary (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); European Union, Mauritius, Japan, Canada, Italy, Norway, Luxembourg, Liechtenstein, Cambodia (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Switzerland, United Kingdom of Great Britain, Canada, Chile, Mexico, Norway, Denmark, Holy See, Panama, New Zealand, Belgium (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Thailand, Jordan, Indonesia, Austria, Sweden, Australia, United Kingdom of Great Britain, Norway, Brazil, Burkina Faso, Switzerland, Mexico, Chile (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); France, the United Kingdom, Mexico, Maldives, Norway, Uruguay, Argentina, Japan, Malaysia, Belgium, Jordan, Slovakia, United States of America, Thailand, Germany, India, Peru, Liechtenstein, Afghanistan, Canada, Costa Rica, Portugal, Sweden (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); African Union, European Union, Republic of Congo, Argentina, France, Peru, Czech Republic, Germany, Montenegro, United States of America, Italy, Austria, Estonia, Maldives, South Africa, Republic of Congo, Egypt, Lithuania, Spain, Belgium, Australia, Norway, Hungary, Slovakia, Holy See, Slovenia, Luxembourg, Croatia, Thailand, Poland, Liechtenstein, UNICEF, Switzerland, Republic Democratic of Congo (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

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cooperation with the human rights mechanism83 and among nations84 in order to reduce the cycle of violence and consolidate universal peace. 4. The Role of Human Rights in the Prevention of War and Armed Conflict On January 31, 1992, the first ever Summit Meeting of the Security Council was convened at the Headquarters of the United Nations in New York. Thirteen of the fifteen Heads of State and Government members of the Council attended the Summit. As indicated by Boutros Boutros-Ghali, former Secretary-General of the United Nations, in his report on the Agenda for Peace, ‘[t]he January 1992 Summit therefore represented an unprecedented recommitment, at the highest level, to the Purposes and Principles of the Charter.’85 He also stressed that the sources of conflict and war are pervasive and deep and that to eliminate them will require efforts to enhance respect of human rights and fundamental freedoms and also to promote the sustainable economic and social development for wider prosperity.86 Pursuant to the UNGA Resolution 47/120 ‘An Agenda for Peace: Preventive Diplomacy and Related Matters’ of 1993, the building of peace and security can be only construed within the United Nations in an integrated manner: [I]nternational peace and security must be seen in an integrated manner and that the efforts of the Organization to build peace, justice, stability and security 83

 Cuba, Finland, Pakistan, Indonesia, Switzerland, Romania, France, Malaysia, India, Canada, Egypt, Albania, Luxembourg, Italy (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); France, Italy, Mexico, Netherlands, Australia, Norway, Morocco, Liechtenstein, Chile, Poland, Viet Nam, Belgium, Cambodia, European Union (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Switzerland, Netherland, Canada, Slovakia, Chile, Mexico, Argentina, Uruguay, Republic of Korea, Algeria, Belgium (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Spain (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); Malaysia, Paraguay, Bulgaria Sweden (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); European Union, Mexico, France, Peru, Germany, Japan, Italy, Estonia, Belgium, Australia, Hungary (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

84

 Cuba, Finland, Switzerland, Malaysia, United Kingdom of Great Britain, Canada, Nigeria, Uruguay, Senegal, Azerbaijan, Spain, Luxembourg, Chile (HRC 4th Spec. Sess. on Darfur (December 12, 2006)); European Union, African Union, Mauritius, Japan, Cuba, Switzerland (HRC 5th Spec. Sess. on Myanmar (October 2, 2007)); Zambia, Ghana, Bangladesh, Mexico, Cuba, Norway, Ireland, Finland, Maldives (HRC 8th Spec. Sess. on Democratic Republic of the Congo (November 28, 2008)); Thailand, Sweden, Republic of Korea, Brazil, Chile (HRC 14th Spec. Sess. on Cote d’Ivoire (December 23, 2010)); Bolivia (HRC 15th Spec. Sess. on Libyan Arab Jamahiriya (February 25, 2011)); Cuba, Morocco, Venezuela, Togo, Lithuania, Spain, Slovakia, Slovenia (HRC 20th Spec. Sess. on the Central African Republic (January 20, 2014)).

85

 An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping: Report of the SecretaryGeneral Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, ¶ 2, U.N. Doc. A/47/277-S/24111 (1992), at (accessed Mar. 9, 2015) [hereinafter An Agenda for Peace].

86

  Id. ¶ 5.

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must encompass not only military matters, but also, through its various organs within their respective areas of competence, relevant political, economic, social, humanitarian, environmental and developmental aspects.87 The former Secretary-General of the United Nations highlighted that the United Nations was created with a great and courageous vision. According to him, now is the time, for its nations and peoples, to seize the moment for the sake of the future.88 Armed conflicts continue to bring fear and horror to humanity. Since the creation of the United Nations in 1945 until 1992, over 100 major conflicts have left some 20 million dead. In order to prevent, contain and bring conflicts to an end, the international community should respect – among other measures – the foundation stones of the United Nations, such as the principles of sovereignty and integrity of States and the full respect of human rights for all. In addition, Member States should bring their attention to the deepest causes of conflicts (i.e. economic despair and social injustice) as a means to prevent and resolve conflicts and preserve the universal peace in the world.89 In the supplement document to an Agenda for Peace of 1995, the SecretaryGeneral of the United Nations stressed that ‘[d]emilitarization, the control of small arms, institutional reform, improved police and judicial systems, the monitoring of human rights, electoral reform and social and economic development can be as valuable in preventing conflict as in healing the wounds after conflict has occurred.’90 The Preamble of the UN Charter states that the cardinal mission of the United Nations remains ‘to save succeeding generations from the scourge of war.’ Additionally, as set forth in its Art. 1(1) Member States are obligated ‘to take effective collective measures for the prevention and removal of threats to the peace . . .’ As indicated in the report ‘Prevention of Armed Conflict’ of 2001, the SecretaryGeneral stressed that the Charter provides the United Nations with a strong mandate for preventing armed conflict. He added that the prevention is more desirable to ensure lasting peace and security than trying to stop it or alleviate its symptoms. It follows that conflict prevention becomes the cornerstone of the UN collective security system.91 87

 G.A. Res. 47/120A, U.N. GAOR, 47th Sess., Supp. No. 49 I, Preamble, para. 6, U.N. Doc. A/47/49 (1993), (accessed Mar. 9, 2015).

88

 An Agenda for Peace, supra n. 85, ¶ 86.

89

  Id. ¶ 13–18.

90

 Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, ¶ 47, U.N. Doc. A/50/60-S/1995/1 (1995), (accessed Mar. 9, 2015).

91

 Prevention of Armed Conflict: Report of the Secretary-General, ¶¶ 18–19, U.N. Doc. A/55/985-S/2001/574 (2001), at (aaccessed Mar. 9, 2015) [hereinafter Prevention of Armed Conflict].

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A new approach to the concept of peace has emerged in recent years because it has included a broader focus on the nature of sustainable peace, such as social and economic development, good governance and democratization, the rule of law and respect of human rights. The Secretary-General also stated that in the twenty-first century, collective security should imply an obligation to address tensions, grievances, inequality, injustice, intolerance and hostilities at the earliest stage possible, before the conflict erupts. He also indicated that this understanding brings the United Nations back to its roots as the Charter, and in particular Art. 55,92 creates the basis for elaborating a more comprehensive and long-term approach to conflict prevention.93 Both the United Nations Millennium Declaration adopted by the UNGA in its Resolution 55/2 (2000)94 and Resolution 1318 (2000) adopted by the Security Council95 recognized the vital role of all parts of the United Nations system in conflict prevention, peaceful resolution of disputes, peacekeeping, post-conflict peace-building and reconstruction and also pledged to enhance the effectiveness of the United Nations in this field. Furthermore, in its Resolution 53/243 ‘Declaration and Programme of Action on a Culture of Peace,’ the UNGA calls upon Member States, civil society and the whole United Nations system to promote activities related to conflict prevention.96 As recognised by the Secretary General, the promotion and protection of all human rights is an important legal tool aimed at preventing armed conflicts in the world: Sustainable and long-term prevention of armed conflict must include a focus on strengthening respect for human rights and addressing core issues of 92

 Article 55: ‘With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.’

93

 Prevention of Armed Conflict, supra n. 91, ¶ 19.

94

 Paragraph 9: ‘. . . To make the United Nations more effective in maintaining peace and security by giving it the resources and tools it needs for conflict prevention, peaceful resolution of disputes, peacekeeping, post-conflict peace-building and reconstruction. In this context, we take note of the report of the Panel on United Nations Peace Operations and request the General Assembly to consider its recommendations expeditiously. . .’

95

 Article II: ‘Pledges to enhance the effectiveness of the United Nations in addressing conflict at all stages from prevention to settlement to post-conflict peace-building . . .’

96

 Article 9(g): ‘Actions to foster a culture of peace through education: . . . g. Strengthen the ongoing efforts of the relevant entities of the United Nations system aimed at training and education, where appropriate, in the areas of conflict prevention and crisis management, peaceful settlement of disputes, as well as in post-conflict peace-building.’

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human rights violations, wherever these occur. Efforts to prevent armed conflict should promote a broad range of human rights, including not only civil and political rights but also economic, social and cultural rights, including the right to development.97 On July 18, 2003, the UNGA adopted upon consensus the Resolution 57/337 ‘Prevention of Armed Conflict,’ by which it recognized that ‘the need for mainstreaming and coordinating the prevention of armed conflict throughout the United Nations system, and calls upon all its relevant organs, organizations and bodies to consider, in accordance with their respective mandates, how they could best include a conflict prevention perspective in their activities . . .’98 The Vienna Declaration and Programme of Action included a provision in which the Conference on Human Rights calls upon the UN Centre for Human Rights to provide technical assistance and qualified expertise in the field of prevention and resolution of disputes.99 Afterwards, in its Resolution 48/141 (1993), the UNGA requested the Office of the United Nations High Commissioner for Human Rights to play an active role in removing the current obstacles and in meeting the challenges to the full realization of all human rights and in preventing the continuation of human rights violations throughout the world.100 In the report on the follow-up to the World Conference on Human Rights presented before the Commission on Human Rights [hereinafter CHR], the High Commissioner stressed the importance of strengthening preventive strategies in many different areas of human rights (i.e. genocide, racism and racial discrimination, development, civil and political rights, slavery, impunity, women and children). In its concluding observations, the High Commissioner stated that ‘[t]he universal implementation of human rights, economic, social and cultural as well as civil and political, is the surest preventive strategy and the most effective way of avoiding the emergence of conflict.’101 97

 Prevention of Armed Conflict, supra n. 91, ¶ 94.

98

 G.A. Res. 57/337, U.N. GAOR, 57th Sess., Supp. No. 49 III, ¶ 11, U.N. Doc. A/RES/57/337 (2003), at (accessed Mar. 9, 2015).

99

 Vienna Declaration and Programme of Action: World Conference on Human Rights (Vienna, Jun. 14–25 1993), ¶ 76, U.N. Doc. A/CONF. 157/23 (1993), at (accessed Mar. 9, 2015).

100

 High Commissioner for the Promotion and Protection of All Human Rghts, G.A. Res. 48/141, U.N. GAOR 3rd Comm., 48th Sess., Supp. No. 49 I, ¶ 4(f ), U.N. Doc. A/RES/48/141 (1993), at (accessed Mar. 9, 2015).

101

 Report of the High Commissioner Submitted Pursuant to Commission Resolution 1999/54, U.N. ESCOR, Commission on Human Rights, 56th Sess., Agenda Item 4: Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, ¶ 92, U.N. Doc. E/CN.4/2000/12 (1999), (accessed Mar. 9, 2015) [hereinafter Report of the High Commissioner].

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Among the possible preventive measures in the field of human rights, the High Commissioner highlighted the following: urgent appeals by special Rapporteurs and thematic mechanisms; requests by treaty bodies for emergency reports; the indication of interim measures of protection under petition procedures for which treaty bodies are responsible; the urgent dispatch of personal envoys of the Secretary-General, the High Commissioner for Human Rights, or of other organizations; the urgent dispatch of human rights and humanitarian observers or fact-finders; the establishment of international courts; and proposals for the establishment of a rapid reaction force.102 The special procedures of the Council are a useful way ‘to monitor the human rights situation in the countries and take all action to avoid a repetition of past patterns when conflicts ravaging a country have made international headlines, only to be forgotten until a new crisis emerges.’103 Human rights violations are often a root cause of conflict and human rights are always an indispensable element in achieving peace and reconciliation. It follows that the failure to adequately address the root causes of the conflict will risk leading to further outbreaks of large-scale violence.104 The priority of the special procedures is that the interests of justice are served and to assist in ensuring that all human rights are protected.105 By virtue of their independence and the nature of their mandates, the different mandate holders are ‘well placed to function as early warning mechanisms, as alarm bells,’ according to the High Commissioner for Human Rights, Navi Pillay.106 Since those special procedures cover all types of human rights, they are able to help defuse tensions at an early stage. The mandates focus on specific situations and make recommendations to governments to address problems, wherever they occur in the world. Finally, on February 21, 2014, the UNGA adopted upon consensus the Resolution 68/160 ‘Enhancement of International Cooperation in the Field of Human Rights,’ by which considered that ‘international cooperation in the field of human rights, in conformity with the purposes and principles set out in the Charter of the United Nations 102

 Report of the High Commissioner, supra n. 101, ¶ 94.

103

 Statement by Chaloka Beyani, Chairperson of the Coordination Committee of Special Procedures, Twentieth Special Session of the Human Rights Council on the Situation of Human Rights in the Central African Republic (January 20, 2014), (accessed Mar. 9, 2015).

104

 Statement by Manuela Carmena Castrillo, Chairperson of the Coordination Committee of Special Procedures, Eight Special Session of the Human Rights Council on the Situation of Human Rights in the East of the Democratic Republic of Congo (November 28, 2008), (accessed Mar. 9, 2015).

105

 Statement by Jose Luis Gomez del Prado, Chairperson of the Coordination Committee of Special Procedures, Eight Special Session of the Human Rights Council on the Situation of Human Rights in the Libyan Arab Jamahiriya (February 25, 2011), (accessed Mar. 9, 2015).

106

 Human Rights Experts Have a Key Role in Early Warning, (accessed Mar. 9, 2015).

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and international law, should make an effective and practical contribution to the urgent task of preventing violations of human rights and fundamental freedoms.’107 5. The Promotion of the Right of Peoples to Peace within the HRC Since 2008 the HRC has been working on the ‘Promotion of the Right of Peoples to Peace’ inspired by previous resolutions on this issue approved by the UNGA and the former CHR, particularly the GA Resolution 39/11 of November 12, 1984, entitled ‘Declaration on the Right of Peoples to Peace’ and the United Nations Millennium Declaration. The Group of Eastern108 and Western European and Others States have continued with their traditional position of opposition showed at the CHR. In 2008, the HRC reiterated the Office of the High Commissioner for Human Rights to convene a workshop on the right of peoples to peace, which was finally held on December 15–16, 2009 in Geneva. In this workshop the current deep division about the existence of the right to peace could be seen even at the academic level. In fact, some well-known legal practitioners who participated at the Workshop on the Right of Peoples to Peace stated that the right to peace had never been explicitly formalized into a treaty, including the UN Charter, and that the UN human rights instruments had not given proper expression to this enabling right.109 On June 17, 2010, the HRC adopted Resolution 14/3 on the right of peoples to peace, which explicitly requested the Advisory Committee, in consultation with Member States, civil society, academia and all relevant stakeholders, to prepare a draft declaration on the right of peoples to peace. On July 5, 2012, the HRC adopted Resolution 20/15 ‘The Promotion of the Right to Peace.’ The resolution established an open-ended working group [hereinafter OEWG] with the mandate of progressively negotiating a draft UN Declaration on the right to peace on the basis of the draft submitted by the Advisory Committee, and without prejudging relevant past, present and future views and proposals. The OEWG concluded in its first session that there were some governmental delegations and other stakeholders that recognize the existence of the right to peace. They argued that this right was already recognized by soft-law instruments 107

 G.A. Res. 68/160, U.N. GAOR 3rd Comm., 68th Sess., Supp. No. 49 I, ¶ 6, U.N. Doc. A/RES/68/160 (2014), at (accessed Mar. 9, 2015).

108

 With the exception of the Russian Federation, which supports the on-going process.

109

 Report of the Office of the High Commissioner on the Outcome of the Expert Workshop on the Right of Peoples to Peace, U.N. GAOR, Human Rights Council, 14th Sess., Agenda Items 2 and 3: Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General; Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, U.N. Doc. A/ HRC/14/38 (2010), at (accessed Mar. 9, 2015).

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(such as UNGA Resolution 39/11 (1984) entitled ‘Declaration on the Right of Peoples to Peace’). On the other hand, several other delegations stated that a stand-alone ‘right to peace’ does not exist under international law. In their view, peace is not a human right, but a consequence of the full implementation of all human rights. On June 13, 2013, the HRC adopted Resolution 23/16, which included the recommendations made by the Chairperson-Rapporteur, at the initiative of the Community of the Latin American and Caribbean States (CELAC) by 30 votes in favor,110 9 against111 and 8 abstentions112 by which the HRC requested the ChairpersonRapporteur of the working group to prepare a new text on the basis of the discussions held during the first session of the working group and on the basis of the intersessional informal consultations to be held, and to present it prior to the second session of the working group for consideration and further discussion thereat. The second session took place from June 30 to July 4, 2014, in Geneva. The preliminary ideas of the Chairperson-Rapporteur were included in a letter addressed to the members of the working group,113 which circulated as an official document at the session. In accordance with the above letter, the following points of concurrence among all delegations were highlighted by the Chairperson-Rapporteur. 1. The declaration should be short and concise and should provide an added value to the field of human rights on the basis of consensus and dialogue. 2. The declaration should be guided by international law, basing itself on the Charter of the United Nations and the promotion of human rights and fundamental freedoms. 3. The legal basis of the human rights legal system is the concept of human dignity. 4. Human rights and fundamental freedoms, in particular the right to life, are massively violated in the context of war and armed conflict. In addition, there is no possibility to exercise fundamental rights in a context of armed violence. 5. Cooperation, dialogue and the protection of all human rights are fundamental to the prevention of war and armed conflict. 110

 Angola, Bangladesh, Benin, Botswana, Burkina Faso, Cameroon, Chile, Congo, Costa Rica, Djibouti, Ecuador, Guatemala, Indonesia, Jordan, Kuwait, Kyrgyzstan, Libya, Malaysia, Maldives, Mauritania, Mauritius, Mexico, Nigeria, Peru, Philippines, Qatar, Saudi Arabia, Thailand, Uganda, Uruguay.

111

 Austria, Czech Republic, Estonia, Germany, Japan, Montenegro, Republic of Korea, Spain and the United States of America.

112

 India, Ireland, Italy, Kazakhstan, Poland, Republic of Moldova, Romania and Switzerland.

113

 Letter from the Chairperson-Rapporteur of the Open-Ended Intergovernmental Working Group on a Draft United Nations Declaration on the Right to Peace, Christian Guillermet-Fernández, Addressed to the Members of the Working Group, U.N. GAOR, Human Rights Council, Open-Ended Intergovernmental Working Group on a Draft United Nations Declaration on the Right to Peace, 2nd Sess., U.N. Doc. A/HRC/WG.13/2/2 (2014), at (accessed Mar. 9, 2015).

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6. The promotion, protection and prevention of violations of all human rights would make a profound contribution to peace. 7. Human rights, peace and development are interdependent and mutually reinforcing. 8. Many concepts of human rights included in the draft declaration elaborated by the Advisory Committee are new and unclear, which results in the risk that the current process will become an unproductive, futile and frivolous exercise. Many notions have already been addressed in other more appropriate forums, some under the HRC, and some not. At the final meeting of its second session, on July 4, 2014, the OEWG welcomed the participation of the Director of the HRC and Special Procedures Division on behalf of the UN High Commissioner for Human Rights and the President of the HRC; acknowledged the constructive dialogue, broad participation and active engagement of governments, regional and political groups, civil society and relevant stakeholders, and took note of the input received from them and finally welcomed the approach put forward by the Chairperson-Rapporteur.114 As stressed, the new approach proposed by the Chairperson-Rapporteur was welcomed by the OEWG, which is composed of all States, civil society organizations and other stakeholders. This approach was accepted by the majority of participants and afterwards, adopted ‘ad referendum’ by all as the correct way to find the necessary consensus in this difficult topic. In particular, the approach is based on the five main ideas. Firstly, unlike the Security Council, the HRC is not the competent body to deal with matters linked to the maintenance of international peace and security in the world. Pursuant to UNGA Resolution 60/251 (2006), the HRC is trusted to work in some of the purposes and principles contained in the UN Charter (i.e. friendly relations among nations, self-determination of peoples, international cooperation and promotion of human rights and fundamental freedoms for all),115 but never on matters related to breach of peace, the use or threat of force or the crime of aggression. The HRC is exclusively focused on those who truly suffer in a conflict: human beings and peoples. Secondly, since the mandate of the HRC is to promote and protect human rights, peace should be elaborated in light of some fundamental human right, which has already been recognised by the international community as a whole, such as the right 114

 Report of the Open-Ended Intergovernmental Working Group on the Draft United Nations Declaration on the Right to Peace, U.N. GAOR, Human Rights Council, 27th Sess., Agenda Item 5: Human Rights Bodies and Mechanisms, ¶ 93(c), U.N. Doc. A/HRC/27/63 (2014) (Chair-Rapporteur: Christian GuillermetFernández), at (accessed Mar. 9, 2015) [hereinafter Report of the Open-Ended Intergovernmental Working Group].

115

 G.A. Res. 60/251, supra n. 49, Preamble, para. 1.

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to life. Therefore, instead of re-creating new rights without the necessary consensus or unanimity, the international community should progressively elaborate existing and already consolidated rights in international law. The linkage between the right to life and peace was unanimously recognised in Art. 1 of the Declaration on the Preparation of Societies for Life in Peace as follows: ‘Every nation and every human being, regardless of race, conscience, language or sex, has the inherent right to life in peace.’ The most reluctant countries expressed support about the linkage between life and peace as follows: ‘They . . . were supportive of the new approach, focusing on the right to life and peace.’116 Additionally, on July 3 the non-governmental organizations117 delivered a joint oral statement in support of this approach by which they made an appeal ‘to all delegations to take a leap forward with the declaration by endorsing the right to life in peace, in line with article 1 of the Declaration on the Preparation of Societies for Life in Peace.’118 Thirdly, the added value of the new Declaration is not only to recall again the linkage between the right to life and peace, but also to elaborate the right to life in connection to peace, including also human rights and development, which has not still elaborated in international law. Fourthly, the HRC calls upon all stakeholders not only to apply some specific measures aimed at preserving the right of peoples to peace, but also to promote other matters which are directly linked to current mandate on the right to peace trusted to the HRC. In particular, the other topics in which Member States could work without disregarding the current Council mandate on the right of peoples to peace are the following: 1) the Principles of the Charter of the United Nations, such as the peaceful settlement of disputes, international cooperation and the selfdetermination of peoples; 2) the elimination of the threat of war; 3) the three pillars of the United Nations (i.e. peace, human rights and development); 4) the eradication of poverty and promotion of sustained economic growth, sustainable development and global prosperity for all; 5) the wide diffusion and promotion of education on 116

 Report of the Open-Ended Intergovernmental Working Group, supra n. 114, ¶ 22.

117

 United Network of Young Peacebuilders, Spanish Society for International Human Rights Law, Associazione Comunità Papa Giovanni XXIII, Brahma Kumaris World Spiritual University, Japan Federation of Bar Associations, Nonviolent Peaceforce, International Fellowship of Reconciliation, International Peace Bureau, International Society for Human Rights, Women’s International League for Peace and Freedom, People’s Solidarity for Participatory Democracy, International Association of Peace Messenger Cities, International Observatory of the Human Right to Peace, Canadian Voice of Women for Peace, Ius Primi Viri, Make Mothers Matter, Pax Romana, Institute for Planetary Synthesis and Institute for Global Education, APRED – Participative Institute for the Progress of Peace, Japanese Association of Democratic Lawyers, Zonta International, Badil Resource Center for Palestinian Residency and Refugee Rights, Arab Group Tamkeen, Graines de Paix International and Youth and Student Movement for the United Nations.

118

 Report of the Open-Ended Intergovernmental Working Group, supra n. 114, ¶ 89.

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peace; and 6) the strengthening of the Declaration and Programme of Action on a Culture of Peace in the field of human rights and fundamental freedoms. Fifthly, the approach builds upon the notions of human dignity, the role of women in the construction of peace and the importance of prevention of armed conflicts in conformity with the Charter and the contribution of the Human Rights Council to the prevention of violations of human rights and its response to human rights emergencies. 6. Conclusions Since we have not yet developed a society that is prepared to acknowledge and entirely reject war as an option, the international community has always elaborated international rules which limit the effects of war. In the latest years, civil society movements have promoted the adoption of important legal instruments aimed at protecting the population in a context of warfare and also limiting the trade and use of certain arms. Nowadays the international community has the legal resources to eliminate progressively war and armed conflicts across the earth through the respect of international law, the promotion of the culture of peace and the friendship among all peoples and nations. The promotion and protection of all human rights is an important legal tool aimed toward preventing armed conflicts in the world. Sustainable and long-term prevention of armed conflict must include a focus on strengthening respect for human rights and addressing core issues of human rights violations, wherever these occur. Efforts to prevent armed conflict should promote a broad range of human rights, including not only civil and political rights but also economic, social and cultural rights, including the right to development. Since the establishment of the HRC in 2006 part of the international community, with the exception of the Group of Eastern119 and Western European and Others States, has actively been engaged in the promotion of the right of peoples to peace through the adoption of several resolutions. It should be noted that the elaboration of this notion within the UN human rights bodies started at the CHR in 2001. Although many of the States have supported the on-going process, some of them have not recognized the existence of the right of peoples to peace under international law. In particular, the Western States and associated countries have constantly showed their opposition to this UN process by arguing that this notion is not correctly linked to human rights. The new approach proposed by the Chairperson-Rapporteur was welcomed by the OEWG on July 4, 2014. His argument is based in the fact that the right to life has properly been characterized as the supreme human right, since without effective guarantee of this right, all other rights of the human being would be devoid of 119

 With the exception of the Russian Federation, which supports the on-going process.

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meaning. Since the right to life should not be narrowly interpreted, it has traditionally been linked to peace and security matters. As for the positional relationship between the right to life and peace, it appears to have been correctly stated in the Preamble to the Universal Declaration of Human Rights and the Declaration on the Preparation of Societies for Life in Peace. It follows that the right to life is not only the legal foundation for other rights, but also an integral part of all the rights which are essential to guaranteeing a better life for all human beings. To finalize this article, we should remember that Alexander II will be forever a constant source of inspiration for all those people whose work for the strengthening of the linkage between peace, human rights and development across the Earth. As recalled, he was the father of the Russian Renaissance, which brought about a great spiritual awakening. He deeply reformed Russian life by changing the justice system and putting an end to a thousand years of slavery.

Annex New Text by the Chair-Rapporteur Presented on 24 June 2014 to the Working Group in Accordance with Human Rights Council Resolution 23/16120 [United Nations Declaration on the Right to Peace]

Preamble The General Assembly, Guided by the purposes and principles of the Charter of the United Nations, Guided also by the Universal Declaration of Human Rights and the International Covenants on Civil, Political, Economic, Social and Cultural Rights as a common standard of achievement for all peoples and all nations, Recalling the determination of the peoples of the United Nations to live together in peace with one another as good neighbors in order to save succeeding generations from the scourge of war, and to take appropriate measures to strengthen universal peace, Recalling that the friendly relations among nations are based on respect for the principle of equal rights and self-determination of peoples, and international cooperation to solve international problems of an economic, social, cultural or humanitarian character and to promote and encourage respect for human rights and fundamental freedoms for all, 120

 Report of the Open-Ended Intergovernmental Working Group, supra n. 114, Annex II, at 17.

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Recalling also that the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recalling that disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, Recalling in particular that everyone is entitled to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights can be fully realized, Recalling that the Vienna Declaration and Programme of Action stated that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing, and that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis, Recalling that peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and wellbeing, and recognizing that development, peace and security and human rights are interlinked and mutually reinforcing, Recalling the world commitment to eradicate poverty and promote sustained economic growth, sustainable development and global prosperity for all, Recalling that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields, Recalling the importance of prevention of armed conflict in accordance with the purposes and principles of the Charter and the commitment to promote a culture of prevention of armed conflict as a means of effectively addressing the interconnected security and development challenges faced by peoples throughout the world, Recalling that the Human Rights Council shall contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies, Recalling also that the wide diffusion of culture, and the education of humanity for justice and liberty and peace are indispensable to the dignity of man and constitute a sacred duty which all the nations must fulfil in a spirit of mutual assistance and concern, Recalling the United Nations Declaration on Human Rights Education and Training, which proclaimed that everyone has the right to know, seek and receive information about all human rights and fundamental freedoms and should have access to human rights education and training, Recalling the Declaration and Programme of Action on a Culture of Peace, which recognized that culture of peace is a set of values, attitudes, traditions and modes of behaviour and ways of life based on, among others, the full respect for and promotion of all human rights and fundamental freedoms,

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Inviting solemnly all stakeholders to guide themselves in their activities by recognizing the supreme importance of practicing tolerance, dialogue, cooperation and solidarity among all stakeholders as a means to promote world peace through human rights and to end, reduce and prevent progressively war and armed violence, in particular, by observing the following: Article 1 Everyone is entitled to the promotion, protection and respect for all human rights and fundamental freedoms, in particular the right to life, in a context in which all human rights, peace and development are fully implemented. Article 2 States should enhance the principles of freedom from fear and want, equality and non-discrimination and justice and rule of law as a means to build peace within societies. In this regard, States should undertake measures to bring about, maintain and enhance conditions of peace, particularly to benefit people in need in situations of humanitarian crises. Article 3 States, the United Nations including its specialized agencies, as well as other interested international, regional, national and local organizations and civil society, should adopt all possible actions with the purpose of implementing, strengthening and elaborating this Declaration, including the establishment and enhancement of national institutions and related infrastructures. Article 4 The provisions included in this Declaration shall be interpreted in light of the Charter of the United Nations, the Universal Declaration of Human Rights and other relevant international instruments ratified by countries.

References 2 The Charter of the United Nations: A Commentary ¶ 1.286 (Bruno Simma et al., eds.) (3rd ed., Oxford University Press 2012). Akhavi, Ali A. L’Echec de la S.D.N. dans l’organisation pratique de la paix ses causes, son avenir 123–124 (Librairie du Recueil Sirey 1937). An Agenda for Peace: Preventive Diplomacy and Related Matters, G.A. Res. 47/120A, U.N. GAOR, 47th Sess., Supp. No. 49 I, Preamble, para. 6, U.N. Doc. A/47/49 (1993), (accessed Mar. 9, 2015).

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An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping: Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, ¶¶ 2, 5, 13–18, 86, U.N. Doc. A/47/277-S/24111 (1992), at (accessed Mar. 9, 2015). Balbareu, Cécile. Le Pacte de Paris (pacte Briand-Kellogg sur le mise de la guerre hors la loi): Thèse de doctorat 73–78 (Librairie universitaire J. Gamber 1929). Barclay, Thomas. Problems of International Practice and Diplomacy with Special Reference to the Hague Conferences and Conventions and Other General Agreements 1–21 (Sweet & Maxwell Ltd. 1907). Bourgeois, Léon. L’Œuvre de la Société des Nations (1920–1923) 10–11 (Payot 1923). Bouthoul, Gaston. Huit mille traités de paix 12–13 (René Julliard 1948). Brailsford, Henry N. A League of Nations 15 (2nd ed., Macmillan Co. 1917), available at (accessed Mar. 9, 2015). Eichner, Louis. La paix des peoples ou essai d’une Confédération Internationale 33–34 (Librairie Marcel Rivière 1922). Enhancement of International Cooperation in the Field of Human Rights, G.A. Res. 68/160, U.N. GAOR 3rd Comm., 68th Sess., Supp. No. 49 I, ¶ 6, U.N. Doc. A/RES/68/160 (2014), at (accessed Mar. 9, 2015). High Commissioner for the Promotion and Protection of All Human Rights, G.A. Res. 48/141, U.N. GAOR 3rd Comm., 48th Sess., Supp. No. 49 I, ¶ 4(f), U.N. Doc. A/RES/48/141 (1993), at (accessed Mar. 9, 2015). Human Rights Council, G.A. Res. 60/251, U.N. GAOR, 60th Sess., Supp. No. 49 III, Preamble, para. 6, U.N. Doc. A/RES/60/251 (2006), at (accessed Mar. 9, 2015). Human Rights Experts Have a Key Role in Early Warning, (accessed Mar. 9, 2015). Hunter Miller, David. The Peace Pact of Paris: A Study of the Briand-Kellogg Treaty 148 (G.P. Putnam’s Sons 1928). International Decade for a Culture of Peace and Non-Violence for the Children of the rd World (2001–2010), G.A. Res. 53/25, U.N. GAOR, 53 Sess., Supp. No. 49 I, U.N. Doc. A/ RES/53/25 (1998), at (accessed Mar. 9, 2015). Letter from the Chairperson-Rapporteur of the Open-Ended Intergovernmental Working Group on a Draft United Nations Declaration on the Right to Peace, Christian Guillermet-Fernández, Addressed to the Members of the Working Group, U.N. GAOR, Human Rights Council, Open-Ended Intergovernmental Working Group on a Draft United Nations Declaration on the Right to Peace, 2nd Sess., U.N. Doc. A/HRC/ WG.13/2/2 (2014), at (accessed Mar. 9, 2015).

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Mandelstam, André N. L’Interprétation du pacte Briand-Kellogg par les gouvernements et les parlements des États signataires 1–24 (A. Pedone 1934). Note by the President of the Security Council, at 3, U.N. Doc. S/23500 (1992), at (accessed Mar. 9, 2015). Phillimore, Walter G.F. Three Centuries of Treaties of Peace and Their Teaching 1–9 (Little, Brown & Co. 1919). Prevention of Armed Conflict, G.A. Res. 57/337, U.N. GAOR, 57th Sess., Supp. No. 49 III, ¶ 11, U.N. Doc. A/RES/57/337 (2003), at (accessed Mar. 9, 2015). Prevention of Armed Conflict: Report of the Secretary-General, ¶¶ 18–19, 94, U.N. Doc. A/55/985-S/2001/574 (2001), at (aaccessed Mar. 9, 2015). Rauchberg, Heinrich. Les obligations juridiques des membres de la société des nations pour le maintien de la paix (= 37 Recueil des cours) 66–67 (Académie de droit international 1932). Report of the High Commissioner Submitted Pursuant to Commission Resolution 1999/54, U.N. ESCOR, Commission on Human Rights, 56th Sess., Agenda Item 4: Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, ¶¶ 92, 94, U.N. Doc. E/CN.4/2000/12 (1999), (accessed Mar. 9, 2015). Report of the Office of the High Commissioner on the Outcome of the Expert Workshop on the Right of Peoples to Peace, U.N. GAOR, Human Rights Council, 14th Sess., Agenda Items 2 and 3: Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General; Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, U.N. Doc. A/HRC/14/38 (2010), at (accessed Mar. 9, 2015). Report of the Open-Ended Intergovernmental Working Group on the Draft United Nations Declaration on the Right to Peace, U.N. GAOR, Human Rights Council, 27th Sess., Agenda Item 5: Human Rights Bodies and Mechanisms, ¶¶ 22, 89, 93(c), Annex II, at 17, U.N. Doc. A/HRC/27/63 (2014) (Chair-Rapporteur: Christian Guillermet-Fernández), at (accessed Mar. 9, 2015). Situation of Human Rights in Cote d’Ivoire in Relation to the Conclusion of the 2010 Presidential Election, U.N. Human Rights Council Res. S-14/1, U.N. Doc. A/HRC/RES/ S-14/1 (December 23, 2010), at (accessed Mar. 9, 2015). Situation of Human Rights in Darfur, U.N. Human Rights Council Dec. S-4/101, U.N. Doc. A/HRC/S-4/101 (December 13, 2006), at (accessed Mar. 9, 2015). Situation of Human Rights in Myanmar, U.N. Human Rights Council Res. S-5/1, U.N. Doc. A/HRC/RES/S-5/1 (October 2, 2007), at (accessed Mar. 9, 2015). Situation of Human Rights in the Central African Republic and Technical Assistance in the Field of Human Rights, U.N. Human Rights Council Res. S-20/1, U.N. Doc. A/HRC/S20/1 (January 20, 2014), at (accessed Mar. 9, 2015). Situation of Human Rights in the East of the Democratic Republic of the Congo, U.N. Human Rights Council Res. S-8/1, U.N. Doc. A/HRC/RES/S-8/1 (December 1, 2008), at (Mar. 9, 2015). Situation of Human Rights in the Libyan Arab Jamahiriya, U.N. Human Rights Council Res. S-15/1, U.N. Doc. A/HRC/RES/S-15/1 (February 25, 2011), at (accessed Mar. 9, 2015). Statement by Chaloka Beyani, Chairperson of the Coordination Committee of Special Procedures, Twentieth Special Session of the Human Rights Council on the Situation of Human Rights in the Central African Republic (January 20, 2014), at (accessed Mar. 9, 2015). Statement by Jose Luis Gomez del Prado, Chairperson of the Coordination Committee of Special Procedures, Eight Special Session of the Human Rights Council on the Situation of Human Rights in the Libyan Arab Jamahiriya (February 25, 2011), at (accessed Mar. 9, 2015). Statement by Manuela Carmena Castrillo, Chairperson of the Coordination Committee of Special Procedures, Eight Special Session of the Human Rights Council on the Situation of Human Rights in the East of the Democratic Republic of Congo (November 28, 2008), at (accessed Mar. 9, 2015). Statement by the President of the Security Council, at 2, U.N. Doc. S/PRST/2013/12 (2013), at (accessed Mar. 9, 2015). Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, ¶ 47, U.N. Doc. A/50/60S/1995/1 (1995), (accessed Mar. 9, 2015). U.N. GAOR, Human Rights Council, 14th Sess., Agenda Items 2 and 3: Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office

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of the High Commissioner and the Secretary-General; Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, U.N. Doc. A/HRC/14/38 (2010), at (accessed Mar. 9, 2015). U.N. Security Council Res. 1714 (2006), U.N. Doc. S/RES/1714 (October 6, 2006), at (accessed Mar. 9, 2015). U.N. Security Council Res. 1857 (2008), U.N. Doc. S/RES/1857 (December 22, 2008), at (accessed Mar. 9, 2015). U.N. Security Council Res. 1962 (2010), U.N. Doc. S/RES/1962 (December 20, 2010), at (accessed Mar. 9, 2015). U.N. Security Council Res. 2016 (2011), U.N. Doc. S/RES/2016 (October 27, 2011), at (accessed Mar. 9, 2015). U.N. Security Council Res. 2134 (2014), U.N. Doc. S/RES/2134 (January 28, 2014), at (accessed Mar. 9, 2014). Vienna Declaration and Programme of Action: World Conference on Human Rights (Vienna, Jun. 14–25 1993), ¶ 76, U.N. Doc. A/CONF. 157/23 (1993), at (accessed Mar. 9, 2015). Information about the authors Christian Guillermet Fernández (San José, Costa Rica) – Deputy Permanent Representative of Costa Rica to the United Nations in Geneva and ChairpersonRapporteur of the Working Group on the Right to Peace (23 Rue de France, Geneva, 1202, Switzerland; e-mail: [email protected]). David Fernández Puyana (Barcelona, Spain) – PhD (European Mention), Legal Assistant of the Chairperson-Rapporteur at the Permanent Mission of Costa Rica in the United Nations in Geneva (23 Rue de France, Geneva, 1202, Switzerland; e-mail: [email protected]).

Environmental Protection of the Arctic Region: Effective Mechanisms of Legal Regulation

Elena Gladun, Tyumen State University (Tyumen, Russia)

The legal regulations on environmental issues that arise in the Arctic due to intensive exploitation of its oil and gas resources need to be explored. There are gaps in environmental regulations over the Arctic region both at international and domestic levels. For Russia, at least two basic problems can be seen in the legal norms: the absence of a coherent approach to the Arctic environmental legislation and policy, and the need to develop effective mechanisms of environmental protection in the process of the Arctic development. In recent years, the Arctic states have expanded legislation on the Arctic issues. Currently, the most effective legal instruments targeting the protection of the fragile Arctic environment have been created by the Arctic countries. The introduction of a system of integrated environmental management is the first step that should be taken. Deep scientific research should be the obligatory foundation of any Arctic project. Moreover, much attention should be paid to the analysis of biological diversity preservation schemes. Lastly, special laws are needed in Russia to ensure: the regulation, prevention, and response to pollution by oil and other containments; the protection and rational use of Arctic resources; and the conservation of the Arctic marine areas and natural landmarks. These ideas are based on a comparative analysis of the legal rules contained within the laws of Norway, Canada, and the United States. Keywords: Arctic; natural resources; environment; international law; Russia; legislation. DOI: 10.17589/2309-8678-2015-3-1-92-109

Introduction: Problems of Environmental Regulations in the Russian Arctic The Russian Federation is a  party to basic international conventions and agreements regulating the use and protection of the Arctic: the Convention of Biological Diversity, the Convention on Wetlands of International Importance especially as Waterfowl Habitat, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the International Convention for the Regulation of Whaling, and the United Nations Framework Convention on Climate Change.

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According to Art. 15(4) of the Constitution of the Russian Federation [hereinafter Constitution], ‘[t]he universally-recognized norms of international law and international treaties of the Russian Federation shall be a component part of its legal system.’1 The works of Professor Sergei Marochkin emphasize the fact that this is not an ordinary constitutional norm but one of the fundamentals of the Russian constitutional system. This norm is entrenched in Ch. 1 of the Constitution, which has a special status and may only be changed by way of a special complicated procedure.2 Thus, the Constitution establishes the direct application of international obligations in domestic matters without necessitating their incorporation into legislation. This provision is quite radical, and not many countries take this route (the Netherlands and Estonia being a few examples of those who have). This constitutional principle is not only incorporated into laws and regulations, but also in law-enforcement practice. After the establishment of the Constitution, the provision in Art. 15(4) has been included in practically every code and federal law adopted in the area of environmental protection and natural resource use.3 Courts have developed its content and rely heavily on the elements of international normative systems such as: the resolutions and recommendations of international organizations, international bodies’ decisions, model acts, legal positions, and rulings of judicial bodies. Since there are gaps in international norms regulating the Arctic’s use, the integration of soft law into domestic legislation is particularly important. Russian authorities confirm that Arctic territory issues ‘can be tackled solely on the basis of international law, the International Convention on the Law of the Sea and in the mechanisms that have in accordance with it been created for determining the borders of states which have a continental shelf . . .’4 Two key documents determining the development in the Arctic for the next decade are the Foundations of Russian Federation Policy in the Arctic until 2020 and Beyond (2008) and the Strategy of the Arctic Zone Development and National Security of the Russian Federation for the Period until 2020.5 The basic national 1

 Конституция РФ [Konstitutsiya RF [Constitution of the Russian Federation]], at (accessed Mar. 11, 2015).

2

 See Sergei Marochkin & Rustam Khalafyan, The Norms of International Soft Law in the Legal System of the Russian Federation, 6(2) Journal of Politics and Law 90 (2013). doi:10.5539/jpl.v6n2p90

3

 See Sergei Marochkin, Place and Role of Norms and Sources of International Law in the Legal System of the Russian Federation: The Doctrinal Exploration and the Legislative Development of the Constitutional Principle, 3(2) Beijing Law Review (2012). doi:10.4236/blr.2012.32005

4

 Transcript of Remarks and Replies to Media Questions by Russian Minister of Foreign Affairs Sergey Lavrov Following His Participation in the 14th Session of the ASEAN Regional Forum on Security, Manila, Philippines, August 2, 2007, The Ministry of Foreign Affairs of Russia (Aug. 3, 2007), (accessed Mar. 11, 2015).

5

 Foundations of the Russian Federation’s State Policy in the Arctic until 2020 and Beyond (approved by the President of the Russian Federation on September 18, 2008, No. Pr-1969), (accessed Mar. 11, 2015) [hereinafter Foundations]; Стратегия развития Арктической зоны Российской Федерации и обеспечения национальной безопасности на период до 2020 года [Strategiya razvitiya Arkticheskoi zony Rossiiskoi

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interests in the Arctic, which are outlined in these acts are to exploit natural resources of Russia’s Arctic, to protect its ecosystems, to use the seas as a transportation system, and to ensure that the Arctic remains a zone of peace and cooperation.6 The legislation on the Arctic issues has developed rather slowly and there are many short-comings in the environmental protection of prioritized Arctic initiatives. At least two basic problems can be outlined: 1) environmental policy of the Arctic region is now segmented and there is no coherent approach to protecting Arctic environment; 2) there are no effective mechanisms for environmental protection in the process of the Arctic development proposed in current legislation. The aim of this article is to formulate adequate solutions to these problems based on a comparative analyses of legislation in the Arctic countries. 2. International and National Legal Regime of the Arctic The legal regime governing the Arctic region is now a vast and complex collection of principles, treaties, conventions and soft law regulating the activities of national governments in their use of Arctic waters in several dimensions ranging from freedom of the Arctic seas, the conservation of fisheries and other marine resources, prohibitions against marine pollution and dumping to regulations that ensure safe shipping, carriage and navigation and efforts to ensure peaceful use of the ocean.7 The two main characteristics of the international legal regime are: 1) it is mostly based on non-binding soft law proposing the Arctic states strategies for preventive measures, consistent with the United Nations Convention on the Law of the Sea and regional treaties, regarding the protection of the Arctic’s marine environment; 8 2) there is no international treaty or convention aimed to regulate specific types of industrial activities in the Arctic. They are all created for the regulation of different types of pollution that occur around the globe, but they do not specifically address the effects of such pollution on the fragile Arctic region. Therefore, the international legal framework gives surrounding states the opportunity to obtain sovereign control over, and regulation of, the activities onshore and in hydrocarbon-rich waters.9 Federatsii i obespecheniya natsional’noi bezopasnosti na period do 2020 goda [The Strategy of the Arctic Zone Development and National Security of the Russian Federation and for the Period until 2020]], at (accessed Mar. 11, 2015) [hereinafter Strategy]. 6

 Foundations, supra n. 5.

7

 Christopher C. Joyner, The Legal Regime for the Arctic Ocean, 18(2) J. Transnat’l L. & Pol’y 243 (2009), available at (accessed Mar. 11, 2015).

8

 Melissa A. Verhaag, It Is Not Too Late: The Need for a Comprehensive International Treaty to Protect the Arctic Environment, 15 Geo. Int’l Envtl. L. Rev. 555, 557 (2003).

9

 See Kristen Rice, Freezing to Heat the Future: Streamlining the Planning and Monitoring of Arctic Hydrocarbon Development, 24(2) Colo. Nat. Resources, Energy & Envtl. L. Rev. 393 (2013), available at (accessed Mar. 11, 2015).

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The Arctic states do not express an intention to create a legal regime banning oil and gas development in the Arctic because it is not in their best interest. The states are already heavily invested in Arctic oil and gas development, not the preservation of the region as a scientific sanctuary. For states to disregard those investments in exchange for a ban on development at this point is not feasible.10 Under these circumstances, the first plausible step for Arctic countries is to implement existing international soft-law into national strategies and legislation, to create effective mechanisms to protect the Arctic environment, and to facilitate the adaptation to the changes in the Arctic region. The Arctic states benefit from abundant resources, so they should carry the most duties and responsibilities for the environmental protection of the Arctic. The eight Arctic countries have all put forth Arctic strategies. They describe their policy objectives for all areas of the Arctic development, use and protection. Canada has two main documents outlining its Arctic strategy: Canada’s Northern Strategy ‘Our North, Our Heritage, Our Future’ and Statement on Canada’s Arctic Foreign Policy. The latter was released in August 2010 and it establishes four areas where Canada is taking action to advance its interests both domestically and internationally and to help unlock the North’s true potential: exercising sovereignty; promoting economic and social development; protecting the environmental heritage; and improving and devolving Northern governance.11 The three parts of the Kingdom of Denmark – Denmark, Greenland and the Faroe Islands – share a number of values and interests, and all have a responsibility to the Arctic region. The Arctic policy of the Kingdom was laid out in August 2011 in Strategy for the Arctic 2011–20. According to the Strategy, the Kingdom will work in close cooperation with their international partners toward a peaceful, secure and safe Arctic with self-sustaining growth and development with respect for the Arctic’s fragile climate, environment and nature.12 In August 2010, the Prime Minister’s Office in Finland published Finland’s Strategy for the Arctic Region. The priority areas of Finland’s policy in the Arctic are environmental protection, economic activities, transport networks, indigenous peoples, and international cooperation.13 Iceland does not have a detailed strategy, but in 2011 its Parliament approved a Parliamentary Resolution on Iceland’s Arctic Policy which lists twelve principles (plus commentary) on which Icelandic policy will stand.14 10

 Rice, supra n. 9, at 399.

11

 Canada Arctic Foreign Policy, at (accessed Mar. 11, 2015).

12

 Denmark, Greenland and the Faroe Islands: Kingdom of Denmark Strategy for the Arctic 2011–20, at (accessed Mar. 11, 2015).

13

 For more details see Finland’s Strategy for Arctic Region, at (accessed Mar. 11, 2015).

14

 Katherine E. Recinos, A Summary of Environmental Strategies of the Arctic Nations, (accessed Mar. 11, 2015).

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The Norwegian Government’s Strategy for the High North, published by the Government of Norway in 2007, sets the overall objective to create sustainable growth and development of the Arctic territories. The priority areas are to ‘exercise our [Government] authority in the High North in a credible, consistent and predictable way;’ ‘to develop knowledge in and about the High North; ‘to be the best steward of the environment and natural resources;’ ‘to provide a suitable framework for further development of petroleum activities in the Barents Sea;’ ‘to play a role in safeguarding the livelihoods, traditions and cultures of indigenous peoples;’ and to ‘develop . . . cooperation in the High North.’15 The Foundations of Russian Federation Policy in the Arctic until 2020 and Beyond was published in the end of March 2009. The document prioritizes the utilization of the Arctic zone as a national strategic resource base in order to meet the socioeconomic objectives associated with national growth.16 According to Sweden’s Strategy for the Arctic Region (adopted in May 2011), Swedish priorities in the Arctic include climate and the environment, economic development, the human dimension (health, climate change and hazardous substances, impact on indigenous cultures and industries, and knowledge transfer).17 The United States’ Arctic policy was originally established in the Arctic Research and Policy Act (ARPA) of 1984, which has since been amended. The Act acknowledges both the importance of the Arctic and the United States’ interests there. A framework is set up ‘to establish national policy, priorities, and goals and to provide a Federal program plan for basic and applied scientific research with respect to the Arctic, including natural resources and materials, physical, biological and health sciences, and social and behavioral sciences.’18 To accomplish this, Secs. 103 and 107 founded the Arctic Research Commission and the Interagency Arctic Research Policy Committee (IARPC) respectively. In 2009 the National Security Presidential Directive (NSPD-66) and Homeland Security Presidential Directive (HSPD-25) were released. These documents reaffirm the country’s intensions towards the responsible handling of the Arctic environment.19 In May 2013, the President of the United States signed the National Strategy for the Arctic Region which set forth the United States Government’s strategic priorities for the Arctic. The Strategy is built on three lines of effort: 1) the United States security interests; 2) responsible Arctic region stewardship; 3) international cooperation.20 15

 The Norwegian Government’s Strategy for the High North 7–9, at (accessed Mar. 11, 2015).

16

 Foundations, supra n. 5; Strategy, supra n. 5.

17

 Sweden’s Strategy for the Arctic Region, at (accessed Mar. 11, 2015).

18

 Section 102(b)(1), at (accessed Mar. 11, 2015).

19

 Recinos, supra n. 14.

20

 National Strategy for the Arctic Region, at (accessed Mar. 11, 2015).

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3. Comparative Analysis of the Regulation of the Arctic Environment in Russia, Canada, USA and Norway Russia strives to meet the international requirements to preserve and protect the ecosystems of the Arctic by changing domestic legislation, for example: 1) it guarantees the preservation of biological diversity in the Arctic, partially by expanding the protected natural areas; 2) it implements measures adaptating the Arctic environments to climate change and increased industrial activity; 3) it introduces cleanup and pollution prevention measures. Protecting the Arctic’s unique environments is one of the four objectives set forth by the Foundations of Russian Federation Policy in the Arctic until 2020 and Beyond. Russia sums up its environmental objectives for the Arctic as the ‘conservation of the Arctic’s unique ecosystems.’ It wants to safeguard ‘the Arctic environment . . . under conditions of increasing economic activity and global climate change.’21 To accomplish this, Russia plans to take several steps. The first is to introduce environmental management and monitoring programs. The second is to focus on the ‘restoration of natural landscapes’ and the responsible disposal of toxic wastes and chemicals. The third is to ‘ensure the preservation of the biological diversity of the Arctic flora and fauna, including through the expansion of the network of protected natural and aquatic environments . . .’ And the fourth is to make sure that nuclear powered vessels are retired and disposed of after reaching a certain age.22 The instruments for implementation of the new environmental policy in Russian Arctic include: – the development of rules and regulations for natural resource use and environmental protection, including a monitoring system in the Arctic territories; – the restoration of natural landscapes; – the utilization of toxic waste abatement; – the establishment of biochemical safeguards, especially in densely-populated areas. However, in Sec. VI of the Foundations, which sets forth the stages of realization of the Russian policy in the Arctic, there is no mention of any environmental targets. In light of this, it is clear that the implementation of the new environmental policy in Russian Arctic lacks mechanisms for realization.23 Domestic environmental laws regulating the environmental protection of the Arctic include the following: Environmental Doctrine of the Russian Federation (2002), Foundations of the State Policy of Environmental Protection of Russia for the Period until 2030, Environmental Protection Law (2002), Wild Animals Law (1995), 21

 Foundations, supra n. 5.

22

 Id.

23

 Id.

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Specially Protected Natural Areas Law (1995), Subsoil Use Law (1992), Water Code (2006), Forest Code (2006), Law on Prevention of Emergent Situations of Natural and Anthropogenic Character, and Regulation on Environmental Impact Assessment (1995, 2000). They declare precautionary principles, resource conservation principles and some measures to protect marine areas. Analysis of Russian legislation shows that it still lacks a comprehensive approach to regulating environmental issues in the Arctic. The rules of environmental protection are not precise enough and sometimes leave much space for legal interpretation. Moreover, they are used as the framework for industrial activities but they do not include standards and restrictions. There is a lack of responsibility measures for environmental harm. More importantly though, none of these regulations were specifically created for the use and protection of the unique Arctic region and could be unable to protect the Arctic’s ecosystem from pollution. Scientific research plays a vital role in protecting the Arctic’s marine environment from accidental oil pollution.24 The basic objectives and strategic priorities in the fields of science and technology are the maintenance of a sufficient level of fundamental and applied scientific research and the creation of modern scientific and geo-information bases of management of the Arctic territories.25 Russia has conducted research in the Arctic for decades. It is the only country that uses ‘drift stations,’ research facilities seasonally deployed on drift ice, and it also has other research stations in its Arctic zone. The first drift station, North Pole-1, was established on May 21, 1937, by the Soviet Union. Russian research has focused on the Arctic seabed, marine life, meteorology, exploration, and natural resources.26 Another instrument for research is a reliable system for navigation known as hydrometeorological information systems, guaranteeing effective control over economic, military, and ecologic activity in the Arctic. It also assists in predicting catastrophic events and mitigating potential negative impacts by using such tools as the global satellite navigation system GLONASS.27 Neither the Arctic Strategy (the Foundations) nor environmental legislation includes provisions for obligatory research to support arctic projects. The objective to designate marine protected areas is not found in Russian practices either. Protected lands and marine areas of the Russian Arctic are much smaller than in other Arctic countries (5.2% in Russia compared to 20–50% in other Arctic states).28 24

 Sara J. Dresser, Safeguarding the Arctic from Accidental Oil Pollution: The Need for a Binding, RegionSpecific Shipping Regime, 16 Sw. J. Int’l L. 507, 542 (2010).

25

 Foundations, supra n. 5.  For more information see North Pole Drifting Stations (1930s–1980s), Beaufort Gyre Exploration Project, (accessed Mar. 11, 2015).

26

27

 Quirin Schiermeier, Russia to Boost Arctic Research, Nature News Blog (Sep. 23, 2010), (accessed Mar. 11, 2015).

28

 State Programme: Environmental Protection, 2012–2020, at (accessed Mar. 11, 2015).

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Even when international principles and rules are declared in Russian legislation, they unfortunately lack mechanisms for enforcement, partially due to the state’s resistance and funding problems. The main mechanisms for enforcement of the new federal legislation in the Arctic could entail federal programs, regional and municipal programs, and programs through oil and gas companies all aimed at the comprehensive development of the Arctic. Between 1998 and 2013, under the Federal Target Program ‘The World Ocean,’ three big environmental projects were financed and realized: ‘Sustainable Development of the Arctic Resources,’ ‘Environmental Safety in the Arctic,’ and ‘Climate Adaptation in the Arctic.’29 This Program evaluated the size of the environmental damage in the Arctic territories of the Russian Federation, developed and tested new technologies for oil spill remediation, and measures to restore the ecosystems of the most acidified bodies of water were suggested. No other programs have been developed since then. On April 21, 2014, the Federal Government approved the Program ‘Social and Economic Development of the Arctic Zone of the Russian Federation for the Period to 2020’ which aims to finance several development projects in the Arctic territories of Russia. Among these projects, only three are aimed toward environmental protection: organizing waste management systems, conservation of biodiversity in the climate change period, and environmental damage assessment and prevention. Mostly, these projects do not have effective methods or specific activities to bring them to fruition. The only instrument provided by the Arctic Strategy is the Action Plan, but without industry investments or governmental funding (the Investment Fund, for example), there is no hope for this to be achieved either. Despite this, northern Russian regions make considerable efforts to protect the Arctic environment in the process of its industrial development. For example, the Yamalo-Nenets autonomous region is preparing the Environmental Protection Strategy of the development projects. This Strategy will measure the environmental response to three important projects: the construction of a seaport in Sabetta, the building of a LNG plant, and the construction of the strategic infrastructure project ‘The Northern Latitudinal Route.’ One more problematic issue is how insufficient the Russian legislation is in the preventing accidents and other contamination of fragile Arctic waters. Despite the fact that the Federal Law ‘On Outer Continental Shelf of the Russian Federation’ is enacted in accordance with the universally-recognized norms of international treaties,30 the act contains very few rules regulating environmental protection during 29

 Федеральная целевая программа «Мировой океан», подпрограмма «Освоение и использование Арктики» [Federal’naya tselevaya programma ‘Mirovoi okean,’ podprogramma ‘Osvoenie i ispol’zovanie Arktiki’ [Federal Target Program ‘The World Ocean,’ Sub-Program ‘Arctic Development and Use’]] (as amended by the Government Decree No. 1135 of December 18, 2012), (accessed Mar. 11, 2015).

30

 Федеральный закон от 30 ноября 1995 г. № 187-ФЗ «О континентальном шельфе Российской Федерации» // Собрание законодательства РФ. 1995. № 49. Ст. 4694 [Federal’nyi zakon ot 30 noyabrya 1995 g. No. 187-FZ ‘O kontinental’nom shel’fe Rossiiskoi Federatsii’ // Sobranie zakonodatel’stva RF. 1995.

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the process of exploration, drilling, and waste disposal on the outer continental shelf. Not until 2012 was the act supplemented by requirements to plan for the prevention and elimination of oil spills.31 According to the amendments to the Federal Law ‘On Outer Continental Shelf of the Russian Federation,’ the responsibility to prepare the Plan for the prevention and elimination of oil spills rests with the operating companies. The Federal Agencies approved the Plan and controlled its realization. As for the regional authorities, under the Russian legislation, they are not vested with any powers of decision making on the outer continental shelf.32 The legislation of Russia regulating oil and gas activities is not concentrated on the Arctic peculiarities and restrictions. There are no provisions that would specify any requirements for operating companies in the Arctic environments. If analogous acts regulating the arctic issues in other Arctic states are compared, the four most effective mechanisms for the environmental protection of the Arctic territories in the process of industrial development are: 1) an integrated management system; 2) the preservation of natural areas and marine areas; 3) research and monitoring; 4) federal, regional and local funding programs for the environmental protection of the Arctic. Norway has the most comprehensive approach to the environmental protection of the Arctic. While almost every area of Arctic policy has an effect on the environment, Norwegian Government’s High North Strategy targets environmental protection and research, regulation of knowledge generation and competence building, cooperation in the north management, utilization of marine resources, petroleum activities, maritime transport, and business development. Part 5 of the Strategy is specifically focused on environmental issues such as climate change and long-range transboundary pollution. Norway intends to be a leading nation in regards to environmental policy and to play a long-term significant role as a steward of the natural and cultural heritage in the High North. They make efforts to monitor the climate, pollutants and the marine environment in the High North. The system of integrated management created by Norwegian legislation could be a positive example for Russia. It includes the regulation of all activities in environmentally fragile areas and plans for actions in emergency cases. For example, in the spring of 2006, the Government presented a white paper on integrated management of the marine environment of the Barents Sea and the sea areas off the Lofoten Islands (Report No. 8 to the Storting (2005–06)). This describes Norway’s management plan for the area, which is intended to provide a framework for the sustainable use of natural resources and goods derived from the Barents Sea / No. 49. St. 4694 [Federal Law No. 187-FZ of November 30, 1995, ‘On the Outer Continental Shelf of the Russian Federation,’ 1995(49) Legislation Bulletin of the Russian Federation, Item 4694]], Preamble. 31

 Id. Art. 22.

32

 Id.

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Lofoten area, and at the same time maintain the structure, functioning and productivity of the ecosystems of the area. The plan clarifies the overall framework for both existing and new activities in these waters.33 The Norwegian legislation pays great attention to ecosystem-based management, which is based on regular assessments of trends in the ecosystems in relation to the environmental goals that have been established. This management system is based on effective mechanisms of implementation. The Government introduces a systematic integrated monitoring system that involves surveys of the marine environment, seabirds and pollutants as well as terms for the update of the management plan. The management plan also focuses on preventing acute pollution by maritime transport and petroleum activities. There are certain parts of the management plan area where the environment and natural resources have been identified as particularly valuable and vulnerable. The Government has mandated that activity in these areas requires special caution, but also that precautionary measures must be adapted to the characteristic features of each area such as why the resource is vulnerable and how vulnerable it is.34 Another effective mechanism is building an expertise center. The Government takes steps to build up expertise on climate issues and environmentally hazardous substances in the Arctic at institutions in Tromsø. In particular, their goal is to follow-up the integrated management plan for the Barents Sea / Lofoten area and environmental monitoring in the High North. The Norwegian Polar Institute heads the Management Forum that is to be responsible for the coordination and overall implementation of the scientific aspects of the integrated management plan, and the Institute of Marine Research, including its Tromsø department, will play a key role in this work.35 Norway has already taken steps toward protecting the Arctic environment such as designating the islands of Jan Mayen and Bjørnøya as nature reserves, passing the Nature Diversity Act, establishing ecosystem-based management plans for the Norwegian Sea and the Barents Sea / Lofoten areas, and banning heavy bunker oil usage in certain areas of Svalbard. Norway plans to continue making the environment a priority by using a precautionary approach and ‘the principle that cumulative environmental effects must be assessed’ when considering development and commercial activities and working within the confines of its environmental legislation.36 Canadian strategies reiterate the country’s commitment to protecting its environmental heritage in ‘an integrated and comprehensive manner that balances conservation, sustainable use and economic development.’37 One of the most 33

 The Norwegian Government’s Strategy for the High North, supra n. 15.

34

 Id.

35

 Id.

36

 Recinos, supra n. 14.

37

 Canada’s Northern Strategy ‘Our North, Our Heritage, Our Future,’ at (accessed Mar. 11, 2015).

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effective mechanisms Canada is focusing on for environmental protection in the Arctic is the conservation of large areas of land in its new national parks. Canada has made significant progress establishing protected areas in over 10% of the North and designating 80 protected areas covering nearly 400,000 square kilometers. These areas include 11 national parks, 6 national wildlife areas and 16 migratory bird sanctuaries that will protect habitats for a wide variety of species.38 These preserves include the East Arm of the Great Slave Lake, the Sahtú Settlement Area, and the Torngat Mountains National Park Reserve. Furthermore, it plans on enlarging the Nahanni National Park reserve and creating three National Wildlife Areas in the Baffin Island region.39 To accomplish their objectives, Canadian legislation has been changing to strengthen protection in the Arctic. In the 1970s, Canada enacted the Arctic Waters Pollution Prevention Act [hereinafter AWPPA] to protect its marine environment and take responsibility for enacting and enforcing anti-pollution and shipping safety laws applicable to a larger area of Arctic waters. In August 2009, the application of the AWPPA was extended from 100 to 200 nautical miles. In addition, regulations requiring vessels to report when entering and operating within Canadian Arctic waters have been finalized and enforced since July 1, 2010.40 Canada is setting an international example with the Federal Contaminated Sites Action Plan. The government is providing $ 3.5 billion over 15 years to address federal contaminated sites with the majority of resources directed toward contaminated sites in the North.41 Protecting the unique and changing environment of the Arctic is the central goal of United States policy. It promotes actions to nurture healthy, sustainable, and resilient ecosystems over an extended period and supports a full range of ecosystem services. The most effective mechanism introduced in the National Strategy for the Arctic Region is natural resource management. It is based on a comprehensive understanding of environmental and cultural sensitivities in the region, and addresses expectations for future infrastructure needs and other developmentrelated trends. This endeavor could promote unity of effort and provide the basis for sensible infrastructure and other resource management decisions in the Arctic. The country emphasizes scientifically informed decision making and integration of economic, environmental, and cultural values. A comprehensive approach also advances coordination among Federal departments and agencies and collaboration with partners engaged in Arctic stewardship activities.42 38

 Canada Arctic Foreign Policy, supra n. 11.

39

 Recinos, supra n. 14.

40

 Canada Arctic Foreign Policy, supra n. 11.

41

 Id.

42

 National Strategy for the Arctic Region, supra n. 18.

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American legislation emphasizes the regulation of development activities on the continental shelf and territorial waters. For example, oil and gas activities on the outer continental shelf are controlled by a patchwork of statutes, regulations, and policies. The Outer Continental Shelf Lands Act [hereinafter OCSLA] is the principal statute governing offshore oil and gas activity in federal waters. It establishes a multiple-stage framework that provides for oil and gas planning, leasing, exploration and development, and production on the outer continental shelf.43 The United States Oil Pollution Act of 1990 [hereinafter OPA] sets forth additional requirements that govern planning and response related to oil spills in marine waters. As federal agencies plan for and decide whether to approve outer continental shelf oil and gas activities, they often debate the requirements of basic environmental legislation. In addition to the aforementioned American legislation, outer continental shelf oil and gas activities may implicate a variety of other federal laws including but not limited to: the Clean Air Act, the Marine Mammal Protection Act, the Coastal Zone Management Act, the Endangered Species Act, and the Magnuson-Stevens Fishery Conservation and Management Act.44 Among other things, OCSLA established a national policy with respect to the outer continental shelf. Congress declared that the outer continental shelf ‘should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.’45 At the broadest tier of the OPA, a National Contingency Plan ‘provides for efficient, coordinated, and effective action to minimize damage from oil and hazardous substance discharges, including containment, dispersal, and removal of oil and hazardous substances . . .’46 The National Contingency Plan is prepared by a multi-agency team, and must establish procedures and standards for responding to worst-case oil spill scenarios.47 Below the national level, regional response teams are responsible for planning and coordinating preparedness. Regional response teams include representatives from federal agencies as well as state and local government representatives. These teams facilitate the ‘development and coordination of preparedness activities before a response action is taken,’ and help coordinate ‘assistance and advice’ during response actions.48 They also develop Regional Contingency Plans, which 43

 Andrew Hartsig, Shortcomings and Solutions: Reforming the Outer Continental Shelf Oil and Gas Framework in the Wake of the Deepwater Horizon Disaster, 16 Ocean & Coastal L.J. 269 (2011).

44

 See Hartsig, supra n. 43.

45

 43 U.S.C., § 1332(3) (2006), at (accessed Mar. 11, 2015).

46

 33 U.S.C., § 1321(d)(2), at (accessed Mar. 11, 2015).

47

 See Hartsig, supra n. 43, at 269.

48

 40 C.F.R., § 300.115(a)(1), at (accessed Mar. 11, 2015).

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are designed to coordinate timely, effective response by various federal agencies and other organizations. Regional response teams help to provide oversight and consistency for area and facility specific response plans within the region. The United States’ rules on liability for oil spills in the Arctic are also adopted in compliance with international law. The OPA consolidated and broadened existing liability provisions to establish a new liability structure for oil spills. Under the OPA, responsible parties are liable for removal costs and damages associated with the discharge or threat of discharge of oil into navigable waters, shorelines, or the Exclusive Economic Zone. A responsible party is liable for all cleanup costs incurred by both government agencies and private parties. Under the OPA, responsible parties are also liable for a broad range of damages including injury to natural resources, loss of real or personal property, loss of subsistence use of natural resources, lost revenues resulting from destruction of property or natural resource injury, lost profits resulting from property loss or natural resource injury, and costs of providing extra public services during or after spill response. OPA’s liability strategy also established caps for cleanup costs and other damages.49 Another example of effective liability legislation is Canada. When the Federal Parliament enacted the AWPPA,50 it controlled the deposit of waste in the Arctic (north of the 60th parallel) up to 100 nautical miles out to sea, imposed significant sanctions on offenders, and bestowed considerable power on pollution prevention officers. This was done to protect the environment without any accompanying claim to sovereignty, and the act relied on customary international law. Since the adoption of the UN Convention on the Law of the Sea in 1982 and Canada’s ratification of it in 2003, however, Canada can now invoke Art. 234 as a legal foundation for its Arctic anti-pollution legislation. Article 234 (often called the ‘Arctic Clause,’ or the ‘Canada Clause’) relates to the environmental protection of ‘ice-covered areas.’ Other Canadian legislation on the environment has also had an impact in the Arctic, including the Canada Shipping Act 2001 and the Marine Liability Act. Through this legislative and regulatory scheme, Canada applies many international maritime law conventions to its Arctic waters such as the International Convention on Civil Liability for Oil Pollution Damage, the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, the International Convention on Oil Pollution Preparedness, Response and Co-operation, the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea and the International Convention on Civil Liability for Bunker Oil Pollution Damage.51 49

 Hartsig, supra n. 43, at 281–284.

50

 For more information see Arctic Shipping Pollution Prevention Regulations (ASPPR), (accessed Mar. 11, 2014).

51

 Peter G. Pamel & Robert C. Wilkins, Challenges of Northern Resource Development and Arctic Shipping, 29(3) J. Energy & Nat. Resources L. 343 (2011).

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4. Conclusion: Perspectives of Legislation Development on the Russian Arctic The environmental risks of Arctic hydrocarbon development can never be completely eliminated, but they can be managed by efficient use of the existing regulatory framework.52 There are at least four areas where action can and should be taken by Russia to facilitate a new arctic regime in compliance with international laws and drawing from the experience of the other Arctic states. First, precautionary measures must be taken in environmental and other legislation related to the Arctic development. The precautionary principle is utilized through certain legal mechanisms which can be regulated in Russian laws. Expanding the protected natural areas. To achieve this, the Federal Law No. 33-FZ of March 14, 1995, ‘On Specially Protected Natural Areas’ should be supplemented with the requirement to create national parks and other reserved areas in the Arctic territories. A positive example would be the Canadian policy for conserving Arctic lands. Recent research shows that Russia needs a new system of prospective protected areas which is 376 new areas and the extension of borders in 19 existing areas. The legal responsibility of the state to designate more protected areas in the Arctic region will foster sustained biodiversity in the fragile arctic environment. Measures of climate change adaptations for the Arctic territories. In the Climate Doctrine of the Russian Federation, adaptation to climate change is regarded as one of the key elements of a future climate policy. However, unlike other countries where adaptation strategies have been developed and implemented for a long time, Russia is only taking the first steps in this direction. Moreover, Russian climate policy is not focusing on the Arctic. Therefore, The Climate Doctrine should be modified with a section describing the necessary measures of climate change adaptation specifically in the Arctic. The adaptation measures can target areas like: public awareness and education, capacity building for the coordination of adaptation, integration of adaptation into development strategies, research, networking, sharing of knowledge, methods, and software tools for adaptation planning. Also, the adaptation measures can be transcribed to forestry, fisheries, agriculture, water resources, transport, tourism and health in the Arctic territories. Certain changes might also be proposed to the related federal laws (Forest Code, Wild Animals Law, Land Code, Water Code, Subsoil Use Law). Response action related to oil spills and other contaminants as well as emergency and contingency cases. The Russian legislation on subsoil use and the continental shelf should be revised with rules for preparing Arctic Oil Pollution Response plans at federal and regional levels. The federal authorities should be vested with the 52

 Rice, supra n. 9, at 393.

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power to plan for and decide whether to approve outer continental shelf oil and gas activities as well as outline the requirements for the industries operating on the continental shelf and in the Arctic waters. The National Arctic Oil Pollution Response plans should be prepared by a multi-agency team and must establish procedures and standards for responding to oil spill emergencies. Regional response plans could coordinate preparedness and response at the regional level and assistance and advice during response actions. Secondly, the national legislation needs to be developed with an integrative approach in order to consider all the dimensions of Arctic use according to sustainability and precaution principles. Applying international expertise is necessary to implement a system of integrated management for the Arctic territories of Russia. A system of integrated management includes regulations for all activities in environmentally fragile areas and plans for actions in emergency cases. It should be introduced for all levels of public authorities and operating companies. The two key documents determining the development in the Arctic – the Foundations of the Russian Federation Policy in the Arctic until 2020 and Beyond and the Strategy of the Arctic Zone Development and National Security of the Russian Federation for the Period until 2020 – may be supplemented by a patchwork of laws and regulations vesting federal and regional authorities with the power to make and regulate decisions on the outer continental shelf and Arctic waters. Their decisions should be coordinated and harmonized with other stockholders from developing companies, non-governmental organizations, and international organizations. In the framework of an integrated management system, the constructive dialogue with all oil and gas companies working in the Arctic can be further developed thus leading to the implementation of the best available monitoring, prevention and mitigation measures. As international experience shows, an integrated approach leads to a comprehensive understanding of environmental and cultural sensitivities in the region and suggests appropriate action plans. The third step is to propose a  specific act on the protection of the Arctic environment. Since none of the environmental laws existing in Russia now were specifically created for the use and protection of the unique Arctic region, they may be unable to protect the Arctic’s ecosystem from pollution in the case of increasing industrial activities or accidental pollution. The specific act may comprise of regulations such as: • provisions for environmental damage assessment and prevention; • prevention and response to pollution by oil and other contaminants (POPs, heavy metals, radioactivity); • protection and rational use of natural resources; • organizing waste management systems in the Arctic territories; • responsibility measures and requiring companies to provide scientific research to support Arctic projects;

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• responsibility measures for environmental harm; • specific requirements for companies operating in the Arctic environments. Specific requirements for companies might include environmental standards for operating in the Arctic. The standards should concern drilling technologies, ice transportation system, waste disposal, and clean up measures. The specific law can target a broad range of damages including injury to natural resources, loss of real or personal property, and loss of subsistence use of natural resources. Lastly, there should be legal provisions for obligatory scientific research support for every Arctic project. Indeed, scientific research plays a vital role in protecting the Arctic’s environment from accidental oil pollution and other contaminants. The effective measure in this realm is the establishment of expertise centers with the focus on climate issues and environmentally hazardous substances in the Arctic. A new center is being constructed now on Bely Island in the Kara Sea off the tip of the Yamal Peninsula. The Norwegian experience of organizing the expertise center could be beneficial to Russia’s success. The center can be entrusted with functions for the coordination and overall implementation of scientific aspects in the integrated management of the Russian Arctic. Deep scientific analysis of social, environmental and economic functions of the Arctic territories will ensure safe and favorable living conditions as well as preventing a negative impact from industrial activities on the environment. To conclude, the main objective of all Arctic states should be to develop and establish a sustainable framework to reduce environmental degradation of the Arctic region from land and marine based activities. For Russia this objective can be met on a systemic basis by making changes in the environmental and related legislations, the adoption of new laws concerning arctic issues in compliance with the obligations of the Russian Federation under international conventions and agreements, and taking into account decisions and programs of the Arctic Council. The main forms of enforcement for the new federal legislation in the Arctic could entail federal programs, regional and municipal programs, and programs through oil and gas companies all aimed at the comprehensive development of the Arctic. References 33 U.S.C., § 1321(d)(2), at (accessed Mar. 11, 2015). 40 C.F.R., § 300.115(a)(1), at (accessed Mar. 11, 2015). 43 U.S.C., § 1332(3) (2006), at (accessed Mar. 11, 2015). Arctic Research and Policy Act (ARPA) of 1984, Sect. 102(b)(1), at (accessed Mar. 11, 2015).

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Arctic Shipping Pollution Prevention Regulations (ASPPR), (accessed Mar. 11, 2014). Canada Arctic Foreign Policy, at (accessed Mar. 11, 2015). Canada’s Northern Strategy ‘Our North, Our Heritage, Our Future,’ at (accessed Mar. 11, 2015). Denmark, Greenland and the Faroe Islands: Kingdom of Denmark Strategy for the Arctic 2011–20, at (accessed Mar. 11, 2015). Dresser, Sara J. Safeguarding the Arctic from Accidental Oil Pollution: The Need for a Binding, Region-Specific Shipping Regime, 16 Sw. J. Int’l L. 507, 542 (2010). Finland’s Strategy for Arctic Region, at (accessed Mar. 11, 2015). Foundations of the Russian Federation’s State Policy in the Arctic until 2020 and Beyond (approved by the President of the Russian Federation on September 18, 2008, No. Pr-1969), (accessed Mar. 11, 2015). Hartsig, Andrew. Shortcomings and Solutions: Reforming the Outer Continental Shelf Oil and Gas Framework in the Wake of the Deepwater Horizon Disaster, 16 Ocean & Coastal L.J. 269, 281–284 (2011). Joyner, Christopher C. The Legal Regime for the Arctic Ocean, 18(2) J. Transnat’l L. & Pol’y 243 (2009), available at (accessed Mar. 11, 2015). Marochkin, Sergei, & Khalafyan, Rustam. The Norms of International Soft Law in the Legal System of the Russian Federation, 6(2) Journal of Politics and Law 90 (2013). doi:10.5539/jpl.v6n2p90 Marochkin, Sergei. Place and Role of Norms and Sources of International Law in the Legal System of the Russian Federation: The Doctrinal Exploration and the Legislative Development of the Constitutional Principle, 3(2) Beijing Law Review (2012). doi:10.4236/blr.2012.32005 National Strategy for the Arctic Region, at (accessed Mar. 11, 2015). North Pole Drifting Stations (1930s–1980s), Beaufort Gyre Exploration Project, (accessed Mar. 11, 2015). Pamel, Peter G., & Wilkins, Robert C. Challenges of Northern Resource Development and Arctic Shipping, 29(3) J. Energy & Nat. Resources L. 343 (2011). Recinos, Katherine E. A Summary of Environmental Strategies of the Arctic Nations, (accessed Mar. 11, 2015).

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Rice, Kristen. Freezing to Heat the Future: Streamlining the Planning and Monitoring of Arctic Hydrocarbon Development, 24(2) Colo. Nat. Resources, Energy & Envtl. L. Rev. 393, 399 (2013), available at (accessed Mar. 11, 2015). Schiermeier, Quirin. Russia to Boost Arctic Research, Nature News Blog (Sep. 23, 2010), (accessed Mar. 11, 2015). State Programme: Environmental Protection, 2012–2020, at (accessed Mar. 11, 2015). Sweden’s Strategy for the Arctic Region, at (accessed Mar. 11, 2015). The Norwegian Government’s Strategy for the High North, at (accessed Mar. 11, 2015). Transcript of Remarks and Replies to Media Questions by Russian Minister of Foreign Affairs Sergey Lavrov Following His Participation in the 14th Session of the ASEAN Regional Forum on Security, Manila, Philippines, August 2, 2007, The Ministry of Foreign Affairs of Russia (Aug. 3, 2007), (accessed Mar. 11, 2015). Verhaag, Melissa A. It Is Not Too Late: The Need for a Comprehensive International Treaty to Protect the Arctic Environment, 15 Geo. Int’l Envtl. L. Rev. 555, 557 (2003). Information about the author Elena Gladun (Tyumen, Russia) – Associate Professor of Finance and Public Law Department, Advisor to the President of Tyumen State University (10 Semakov str., Tyumen, 625003, Russia; e-mail: [email protected]).

COMMENTS

Searching for Truth in Civil Process: The Netherlands and Russia

Ruth A. van der Pol, Court of Appeal Arnhem-Leeuwarden (Leeuwarden, The Netherlands),

Anton Petrov, Center of European Law (St. Petersburg, Russia)

This article examines the search for truth by the civil law courts in The Netherlands and Russia, and elucidates three basic questions in that respect: 1) should civil law courts seek for truth in civil process; 2) how must this truth be perceived; and 3) how do courts seek for truth? The Dutch approach to these questions is basically that no justice can be done when there has not at least been undertaken a serious effort to find out the truth, while at the same time acknowledging that seeking for truth has less to do with the final result than with the attitude of the court in its quest for a just decision. In their search for truth – by establishing the correct facts – Dutch courts apply a balanced methodology. Russian civil courts take the position that, although are not required to, they think they should search for truth in the sense that it correctly reflects objective reality. It may well be that Russian civil procedure puts in theory a goal of finding objective truth but, while having no objective instrument for that, does so in the most subjective way possible. Dutch methodology may well be the one needed for the Russian courts. Keywords: civil process; courts; search for truth; importance of true facts; judicial reasoning; objective truth; Dutch approach and Russian mirror. DOI: 10.17589/2309-8678-2015-3-1-110-132

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But you shall hear from me the whole truth Plato, Apology of Socrates 1. Introduction Veritas, veritatum, omnia veritas.1 It is an inescapable fact that truth and the search for truth are at present very much en vogue in civil litigation. Indeed, truth is something we cannot easily have enough of: no sensible human being will be against it. The question however what is and how to find ‘the truth’ is not so easy to answer, even for jurists who have no affinity with philosophy. Truth in the opinion of many belongs to the exclusive domain of procedural law. Substantive law does not have much in common with ‘truth’ and ‘search for truth.’ The question arises whether this trend always increases the quality of the outcome of a civil procedure. On the one hand we may consider as positive that the courts do not content themselves with the cold result of facts that are asserted and challenged in a civil lawsuit. On the other hand we must face the fact that more often than not it is merely an illusion to expect that in a civil lawsuit the truth – that is: the real facts, as they happened in reality between the parties – can be established beyond reasonable doubt. Nietzsches cynicism: „Die Wahrheit ist eine Illusion, von der man vergessen hat, das sie eine ist“2 is to be avoided at all times in civil litigation, while on the other hand the parties involved, the court and society need to realize that seeking the truth has less to do with the final result than with the attitude of the court in its quest for a just decision. For this reason and against this background the interest for evidence in civil litigation in Russia and in The Netherlands is fully justified. Not so much in the sense that it suggests that the truth can be found, but mainly in the context of the courts’ attitude that is aimed at finding out the truth.3 No justice can be accomplished in a civil procedure in which there has not been at least undertaken a serious effort to find out the truth in the conflict at stake. Evidence 1

 V. van den Brink, De waarheid is van iedereen, 2014(5) Nederlands Tijdschrift voor Burgerlijk Recht; Eric Tjong Tjin Tai, Waarheid in het burgerlijk proces, bespreking NJV preadvies, 87(22) Nederlands Juristenblad (2012), available at (accessed Mar. 11, 2015).

2

 Friedrich Nietzsche, Über Wahrheit und Lüge im aussermoralischen Sinne (1873), Kap. 1, (accessed Mar. 11, 2015): „Was ist also Wahrheit? Ein bewegliches Heer von Metaphern, Metonymien, Anthropomorphismen, kurz eine Summe von menschlichen Relationen, die, poetisch und rhetorisch gesteigert, übertragen, geschmückt wurden, und die nach langem Gebrauch einem Volke fest, kanonisch und verbindlich dünken: die Wahrheiten sind Illusionen, von denen man vergessen hat, daß sie welche sind, Metaphern, die abgenutzt und sinnlich kraftlos geworden sind, Münzen, die ihr Bild verloren haben und nun als Metall, nicht mehr als Münzen, in Betracht kommen.“

3

 G. van Rijssen & R.A. van der Pol, Civiel deskundigenbewijs, 2013(4) Tijdschrift voor Civiele Rechtspleging; Willem D.H. Asser, Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, 3 Procesrecht: Bewijs 71 (Kluwer 2013).

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law chiefly concerns itself with the methods by which facts are being established in a civil lawsuit. It is the facts that make up for the basis of the parties’ claims and the court’s decision, and it is from this point of view that there is reason to assume that facts are taken seriously both by the parties and by the courts. However, this is not self-evident and is often depending on the perspective one takes when looking at a civil lawsuit. Dutch lawyers often have a different opinion when it concerns the importance of seeking the truth than many judges have, and scholarly opinions tend to go in various directions. In this essay I will limit myself to briefly sketching a few basics of the Dutch civil procedure, seen from a judges’ perspective, in the course of which I will also touch on a few aspects of the present discussion concerning the importance of facts and truth in the Dutch civil procedure: seeking the truth, the importance of establishing the facts4 and, in this context, the question how active judges may behave in their pursuit for true facts. Subsequently the issue will be addressed from the Russian perspective. 2. We Need Facts Charles Dickens begins his XIXth century novel of social injustice ‘Hard Times’ with ‘The One Thing Needful:’5 Now, what I want is, facts. Teach these boys and girls nothing but facts. Facts alone are wanted in life. Plant nothing else, and root out everything else. You can only form the minds of reasoning animals upon Facts: nothing else will ever be of any service to them. This is the principle on which I bring up my own children, and this is the principle on which I bring up these children. Stick to facts, Sir! This ‘principle’ more or less applies to any civil procedure. The principle of seeking the truth can be used as an umbrella that includes all activities of the parties and the court that have as objective the establishment of the relevant facts, that is those facts that the court needs to ground its decision on. It includes the relation between facts and law, the division of tasks between parties and court, but also third-party duties such as the obligation of witnesses to supply the court with relevant information.6 In this context it is worth mentioning that the Dutch Supreme Court ruled in several of its recent judgments that it is a weighty social interest that in a court of law the 4

 See on this subject from the comparative perspective Remme Verkerk, Fact-Finding in Civil Litigation: A Comparative Perspective (Intersentia 2010).

5

 Charles Dickens, Hard Times (Vintage Classics 2012).

6

 R.H. de Bock, Tussen waarheid en onzekerheid: over het vaststellen van feiten in de civiele procedure (= 9 Burgerlijk Proces & Praktijk) (Rob Rutgers et al., eds.) (Kluwer 2011).

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truth can be found.7 A just judicial decision can be realized only on the basis of a correct application of legal norms based on facts that are true. The distinguished Dutch jurist Paul Scholten in his Algemeen Deel (General Part) phrased it briefly as follows: ‘It is in the facts that the law is to be found.’8 It is generally accepted that the examination of the facts in a civil procedure is aimed at finding the material truth of these facts:9 did they happen in reality? Seeking the truth by the courts is, however, not mentioned in the overriding objectives of the 1999 English Civil Procedure Rules (CPR), for the mere reason that ‘seeking the truth is so obviously part of the court’s role that it does not need to be stated expressly in the Rules.’ The procedural rules do not exist ‘to establish the court’s basic constitutional purpose: namely, to decide cases in accordance with the facts and applicable law.’10 I can but fully agree with Asser that this can be said for all jurisdictions.11 As mentioned before, seeking the truth aims mainly at establishing facts that are relevant for the court’s decision and takes place in a procedure in which rules are guiding the division of roles between the court and the parties, as well as the acquiring of information and the verification thereof (by way of evidence, assessment of evidence, expert-reports, discovery and exhibition duties). Before highlighting some aspects of the procedural debate in The Netherlands – establishing of facts and evidence – it seems to make sense to roughly sketch a few important aspects of Dutch civil procedure. 3. In Short: The Dutch Procedural Model In the Netherlands the administration of justice in all civil and commercial law cases is in the hands of eleven courts of the first instance (district courts (rechtbanken)), four courts of appeal (gerechtshoven) and the Supreme Court (Hoge Raad). Only the district courts and the courts of appeal examine facts; the Supreme Court’s authority is limited to supervising the correct application of norms of substantial law and procedural law – norms of international law included – by the courts of appeal. The 7

 Uitgeversmaatschappij De Telegraaf B.V. / De Staat der Nederlanden, HR 11 juli 2008, NJ 2009/451 (ann. EJD), available at (accessed Mar. 11, 2015); [De man] / [De vrouw], HR 10 april 2009, NJ 2010/471 (ann. CJMK), available at (accessed Mar. 11, 2015); [Eiser] / Nederlandse Israëlitische Hoofdsynagoge, HR 18 maart 2011, NJ 2012/315 (ann. CJMK), (accessed Mar. 11, 2015).

8

 Paul Scholten, Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, Algemeen deel 9 (W.E.J. Tjeenk Willink 1974).

9

 Jan B.M. Vranken, Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, Algemeen deel ****, Een synthese 62–82 (Kluwer 2014).

10

 Adrian Zuckerman, Zuckerman on Civil Procedure: Principles of Practise ¶ 1.15 (Sweet & Maxwell 2006).

11

 Asser, supra n. 3, at 75 (with many references).

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Supreme Court also supervises the unity of the law and legal development.12 As far as the appeal instance is concerned it suffices to mention that – contrary to many other jurisdictions – the appeal procedure may include a whole new assessment of the case in which the parties can bring forward new facts, new or additional claims, legal grounds and / or new challenges. The task of the appeal court is therefore not restricted to a mere assessment of the judgment of the district court, as is the case in some jurisdictions. For practical reasons however, this is not the place to go into the particulars of the appeal procedure.13 I will therefore limit myself to relevant aspects that apply both to first and second instance civil procedures.14 The characteristics of the Dutch procedural model find their roots in the Romancanonic law tradition: a mainly written procedure with a dominant role of the court concerning the examination of the facts and an important role for professional lawyers.15 Legal representation before the court is mandatory in all cases that exceed an amount of € 25,000, whereas in the appeal instances and in the cassation instance legal representation by lawyers is mandatory in all cases. Recent reforms have strengthened the dominant role of the courts, particularly where it concerns fact-finding. Article 21 of the Dutch Civil Procedure Code [hereinafter DCPC] obliges the parties to bring forward all those facts that are relevant for the court’s decision ‘complete and in accordance with the truth.’ Furthermore the court has it in its power to oblige the parties at any moment to clarify particular assertions as well as to submit certain documents (Art. 22 DCPC). Next to this since the 2002 reforms16 an oral hearing (comparitie) takes place in practically every first instance case, but only after both parties have submitted their respective court documents, the plaintiff: a writ of summons (containing the plaintiffs’ allegations), and the defense: its statement of answer (eventually containing a counter-claim). Given the dominant role of the courts with respect to the examination of relevant facts, it will not come as a surprise that Dutch legal culture requires a high degree 12

 E. Korthals Altes & H.A. Groen, Mr. C. Asser’s Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, 7 Procesrecht: Cassatie in burgerlijke zaken (Kluwer 2005).

13

 A great survey on the Dutch style appeal procedure is given by F.B. Bakels et al., Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, 4 Procesrecht: Hoger beroep (Kluwer 2009).

14

 There exists only one „Wetboek van burgerlijke rechtsvordering” (Civil Procedure Code), that contains the rules of civil procedure for the district courts, the courts of appeal and the Supreme Court. Apart from that, many (sub)rules are to be found in the Supreme Courts’ jurisprudence.

15

 Asser, supra n. 3, at 2.

16

 See for an overview of the reforms C.H. (Remco) van Rhee & Remme Verkerk, The Netherlands: A No-Nonsense Approach to Civil Procedure Reform, in Civil Litigation in China and Europe: Essays on the Role of the Judge and the Parties (= 31 Ius Gentium: Comparative Perspectives on Law and Justice) 259–280 (C.H. (Remco) van Rhee & Fu Yulin, eds.) (Springer 2014).

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of professional, cooperative, behaviour between the parties and the court. The reason behind it lies in the awareness that the parties and the court both bear equal responsibility for a speedy, efficient and effective process. Both the parties and court therefore are required to actively participate to ensure procedural (Art. 6 of the European Convention on Human Rights [hereinafter ECHR]) and substantial justice. This implies that parties may have a duty not only to inform the court completely and correctly, but also that they inform the other party equally. One might even conclude that the parties have an obligation to cooperate in revealing the truth, that they must lay their cards on the table. Non-cooperative, even oppositional, behaviour must be sanctioned. If we try to formulate a standard by which to assess the parties’ procedural behaviour, it should be the central open norm of Dutch civil procedure law, that is ‘the requirements of a good process order,’ from which the courts can concretize a duty to cooperate in any particular situation. Moreover, from this viewpoint the risk that both parties, and the court, construe their own reality can be substantially minimized.17 4. How Civil Judges Reason Two core legal provisions should not be overlooked because they emphasize the division of roles between the court and the parties in the procedural debate that focuses on the claimants’ demands and the challenges by the defense. Article 24 DCPC orders the court to examine and decide each case on the basis of what is asserted by the plaintiff and the defense, while Art. 25 DCPC orders the court to ex officio supplement the legal foundation. In other words: the courts’ decision must be firmly grounded in the parties’ positions and the law. Article 24 DCPC thus emphasizes the party autonomy and restricts on reasonable grounds the courts’ freedom to freely give a decision the court may find the most reasonable one. Fundamental procedural principles – such as the parties’ autonomy and hearing both parties – result in the basic assumption that the court does not ground its decision on facts that are not asserted or have not been established, and that it neither supplements the claim or defense with a legal foundation that has no basis in the parties’ positions.18 It is this fundamental starting point regarding the division of roles between the courts and the parties’ (that is: their lawyers) that regularly causes difficulties in daily practice.19 It all comes down to the question of how much freedom is given to the courts in 17

 Asser, supra n. 3, at 80.

18

 Vranken, supra n. 10, at 68 (seeking truth versus party autonomy).

19

 There is almost a boundless amount of literature and Supreme Court jurisprudence on this subject. See, e.g., A.C. van Schaick, Mr. C. Asser’s Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, 2 Procesrecht: Eerste aanleg (Kluwer 2011) (Ch. 6 ‘The Procedural Debate. The Division of Roles between the Parties and the Courts’ with many footnotes); see also Asser, supra n. 3 (Ch. 4 ‘The Boundaries of the Search for Truth’ also with many references in footnotes).

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their search for truth. Can a clear boundary be established in general terms? I will go into this debate in the next section. For the time being it suffices to realize that the starting point as far as facts and legal foundation is concerned is upon the parties. Let us face the question of how the court establishes those facts that it finds to be relevant for its decision? In other words: when does an asserted fact become an established fact? To answer this question we must distinguish between the following seven stages:20 1) asserting; 2) challenging; 3) burden of proof; 4) offer to proof; 5) order to furnish evidence (parol evidence and / or documentary evidence); 6) produce evidence; 7) assessing the evidence by the court. It is of essential importance – every qualified lawyer should realize this – that these consecutive stages are being followed in the process of analyzing; none should be missed. It goes without saying that the transition from stage 2 to stage 3 is the most important one in the limited context of this article, that is the stage from ‘asserting and challenging’ to ‘evidence.’ Let us therefore focus on three important stages. Stage 1. On the plaintiff who files a claim rests the obligation – on pain of rejection of the claim – to assert facts that support the allegations made in the writ of summons and that may support the relief sought to be awarded by the court. The mere assertion ‘I want the defendant to be condemned to pay € 50,000’ will clearly not suffice. The plaintiff will have to assert sufficient facts to substantiate all elements prescribed by the substantial law. For instance: the party that claims € 50,000 – damages for breach of a contractual obligation, will have at least to start asserting the elements a) ‘contract,’ b) ‘breach,’ c) ‘damages,’ and d) ‘causality.’ Furthermore, he will also have to substantiate – that is: concretize – these respective elements. In the same example: what is the obligation the other party supposedly has breached, on what contract is this obligation based (have the parties used a written contract or an oral one?), and what specific damages were caused by this breach? The plaintiff therefore has to make sure that his claim is given sufficient substantiation, both in terms of the invoked elements of substantial law and with regard to the substantiation with alleged facts of these respective elements. If the court finds that the plaintiff has not fulfilled its obligation in either way, the claim will be rejected. Stage 2 will not be reached. Stage 2. Only when the court has affirmed that the plaintiff has fulfilled his obligation under Stage 1, Stage 2 is entered. In that stage the court has to ask itself 20

 V. van den Brink, Stellen, betwisten bewijzen – een handleiding, 2008(4) Praktisch Procederen; Margreet J.A.M. Ahsmann, De weg naar het civiele vonnis (Boom Juridische uitgevers 2011).

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the question whether the defense has sufficiently challenged the facts asserted by the plaintiff in his court document. If the court comes to the conclusion that this is not the case, it has to establish these facts as uncontested (Art. 149(1) DCPC).21 If however an asserted fact is challenged, the court will carefully direct the ‘magnifying glass’ on the quality of both sides’ assertions. Both parties must sufficiently substantiate and concretize their respective assertions and challenges. The more concrete the assertions of one party are, the more the other party may be expected to substantiate and concretize his assertions / challenges and vice versa. It is difficult to formulate hard and fast standards of what in general may be expected of both parties, as this will depend on the specific circumstances of each case. What can be said however is that the court, before it rules that one of the parties has not sufficiently fulfilled its obligation to substantiate and concretize facts stated in the context of the claim or the challenge thereof, must ask itself the question: what else could – and therefore: should – this party have come up with? As it is considered a fundamental principle of fair trial that each judicial decision is reasoned at least to the extent that it gives sufficient insight into the court’s line of reasoning in order to ensure that its decision is ‘verifiable and acceptable’22 both for the parties, the higher courts and third parties alike, the court should also explain why it finds that one party could and should have substantiated its assertions or challenges more extensively, before it rejects either the claim or the position taken by the defense. Here lies anyway an important task for the more active judge during a court hearing. To round off: only when the court finds that both the substantiation of asserted facts by the claimant and the substantiation of the challenges by the defense are of sufficient quality, does the question of the burden of proof arise. That is the third stage. Stage 3. Article 150 DCPC contains the basic rule that on the party that calls upon the legal effects of certain asserted facts or rights, rests the burden of proof of these facts or rights. Consequently it is this party that bears the risk that the court is not able to establish these facts or rights (‘non liquet’) and that the claim, insofar as it is grounded on these facts or rights, must be rejected. Therefore we may conclude that the party who asserts facts to substantiate his appeal to a certain legal effect must prove those facts to be truthful. Asserting facts / rights and evidence therefore go hand in hand. Let me go back to the example given in Stage 1. It is clear that the burden of proof of the asserted facts that substantiate the above-mentioned 21

 This must be seen as an example of the party autonomy.

22

 See the constant jurisprudence of the Supreme Court: Vredo / Veenhuis, HR 4 juni 1993, NJ 1993/659 (ann. DWFV); Finkenburgh / Van Mansum, HR 16 oktober 1998, NJ 1999/7; [Eiseressen 1–5] / [Verweerders 1–6], HR 25 oktober 2002, NJ 2003/171 (ann. MVS), available at (accessed Mar. 11, 2015). It shows the influence of Art. 6(1) ECHR on civil procedure law. See A. Hammerstein, De invloed van artikel 6 lid 1 EVRM op het burgerlijk procesrecht, in Europeanisering van het Nederlands recht: opstellen aangeboden aan Mr. W.E. Haak 220–233 (G.J.M. Corstens et al., eds.) (Kluwer 2004).

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elements a)–d) is on the claimant, taken that they are sufficiently challenged by the defense.23 However, if the defense not only challenges these facts by denying that any breach of contract has been committed by her, but also files a counterclaim asserting that, on the contrary, it was not the defense but the claimant who has committed a breach of contract and is therefore liable to pay damages, the burden of proof of the facts that support that argument is on the defense.24 The ratio thereof lies in the basic rule of Art. 150 DCPC. There remains much more to be said about the burden of proof and all its complicated side-alleys, as it is the hinge around which the court’s decision turns: the one who has to prove facts or rights also bears the risk that they can not be established. This goes beyond the scope of this article, and deserves a separate publication. I will leave the Stages 4–6 but will instead say a few words about Stage 7, the assessment by the courts of the evidence. Stage 7. When it comes to the question ‘true’ or ‘not true,’ one would expect that either the law or the jurisprudence would set the clear standards by which the courts have to assess and decide whether evidence of a fact has been produced. This is not the case. Dutch law takes the so-called free assessment of evidence by the courts in Art. 152(2) DCPC as a principle, where it stipulates: ‘The assessment of evidence is left to the court’s judgment, unless prescribed otherwise by the law.’ The law therefore does not give the court much support when faced with the central question as to when it may, or must, assume a certain fact has been proven. Over the years literature and jurisprudence have developed the standard of a ‘reasonable degree of certainty’ by which to assess evidence and to assume a fact proven. It is clear that such a standard gives the courts a wide margin of appreciation when it comes to assessing evidence. When is a court convinced, and when is it not?25 For this reason some jurists assert with some justification that the decision whether a certain fact has been proven depends to a high degree on the subjective judgment of the members of the court in the concrete case. This certainly has ground, in particular when it comes to assessing witnesses’ statements as so often is the case in Dutch courts where evidence by witnesses’ is allowed in many situations. It is hard to predict in advance how much ‘reasonable certainty’ a court needs to reach the conclusion that evidence of a fact has been produced. This means there exists a high degree of legal uncertainty for those who have to decide whether to start a lawsuit or to start a defense. It is against this background that the Amsterdam Court of Appeal judge Ruth de Bock in her recent thesis26 argued that a more serious reasoning may 23

 And if not, the court has to establish them on the basis of Art. 149 DCPC.

24

 Asser, supra n. 3, has a lot to say about this important issue in Ch. 9.

25

 Vranken, supra n. 10, at 76 (with a reference to Art. 21.1 ALI / Unidroit Principles of Transnational Civil Procedures 2004: ‘Facts are considered proven when the court is reasonably convinced of their truth’).

26

 De Bock, supra n. 7.

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be expected with regard to the court’s judgment that evidence of a certain fact or right has been produced. In this context she proposes the following standard: A fact is proven by the civil law courts when it can reasonably be concluded from the available evidence that said fact has taken place, while at the same time the available evidence does not leave open the possibility that the version of the facts as asserted by the other party has taken place, while just as little can be said that evidence, that reasonably may have been expected, is lacking. It may be argued that the latter standard leaves as much subjectivity to the courts as the former one. However, the value of the point she makes lies primarily in the notion of the importance of the court’s task to reason its judgment that evidence of a certain fact or right has, or has not, been produced in the best possible way. At the same time it makes us realize the limitations the court faces while reaching the point on which it has to decide: ‘true’ or ‘not true.’27 More in general it can be said that De Bock’s thesis provides insight into every-day dilemmas of legal practice around the theme of ‘seeking the truth’ and it is certainly stimulating to reflect on how and where judges can do better. 5. (Too) Active Judges? There remains one interesting issue to be briefly touched on, and that is the difference of opinion between those who are advocating a strictly maintained party autonomy and the court’s passiveness where facts and rights are concerned, versus those who are advocating a more inquisitorial, active, role of judges when it comes to seeking the true facts. The oral hearing (‘the parties day in court’) I mentioned in sec. 2, which takes place in practically every first instance case, marks a very important moment in the procedural debate between the parties and the court (mostly a one-judge panel). As a rule, no further exchange of court documents is permitted after this moment, although exceptions do exist. After the oral hearing the court sets a date for its written judgment, usually six weeks later. This can be either an interlocutory judgment – e.g., ordering one of the parties to produce (further) evidence – or a final judgment, awarding or rejecting the claim. In the opinion of those jurists who are adherents of a strictly maintained party autonomy and the courts’ passiveness, the responsibility for asserting legal grounds, challenges, and the necessary facts that support these grounds and challenges rests exclusively on the parties; in their vision the court’s role in the debate should be strictly 27

 See also the interesting review of De Bock’s thesis by Prof. Mr. G. de Groot, De vaststelling van feiten in de civiele procedure, 2012(2) Tijdschrift voor Civiele Rechtspleging.

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limited to those facts and grounds that are in dispute and to the sustainability of the claim and the challenges thereof by the defense. In other words: the parties have a dispute, they both want to ‘win their case’ and this does not correspond with the idea that the parties, together with the court, bear a common responsibility for ‘the best possible outcome.’ As a consequence this vision is opposing the very idea of judges actively collecting grounds and facts from the court documents which he or she finds reasonable for reaching a just decision. This rather formal approach is necessary in the eyes of its adherents, because active and helping judges create sloppy litigators and this, in turn, stands in the way of the realization of existing civil rights.28 Many judges will agree that the extent to which the court can actively participate in the procedural debate between the parties is limited. However, the rather formal and one-sided view of the adherents of a strict party autonomy should be criticized on (at least) the following grounds.29 First, this view starts from the incorrect assumption that as a rule, the parties are represented by highly qualified lawyers / litigators. For matters with damages up to € 25,000 the parties are not required to retain legal representation – parties can therefore appear in person – and many lawyers tend to be sloppy litigators. This often has the consequence that court documents lack clear legal grounds and challenges, and that hardly any attention is paid to the facts that have in reality occurred and that should form the foundation of the asserted legal grounds and challenges thereof. Shouldn’t one then, given this reality, expect judges to do their best to try to examine and clarify the facts that took place in reality and ask questions about the legal grounds that are invoked and the challenges thereof? Second, judges, unlike many lawyers, consider a civil dispute not from the perspective of a tactical match between two equally equipped parties and their respective lawyers, but from the perspective of seeking the truth because – as I argued in the foregoing – seeking truth is the natural orientation of judges in the examination of the facts. This orientation demands active judges. Giving up on seeking truth as a principle that serves as a guideline for any civil law judge will have as a consequence that the establishment of facts will become an arbitrary business and that procedure will be merely procedure.30 Last but not least, dysfunctioning lawyers tend to create a judges’ dilemma: will he or she decide the case exclusively on the basis of the facts, grounds and arguments presented to him in often nicely composed court documents – and ‘reprimand’ the 28

 A strong adherent of this ‘doctrine’ is prof. Mr. A.C. van Schaick in his oration „Het burgerlijk recht de baas? Over de verwevenheid van burgerlijk recht en burgerlijk procesrecht” (Kluwer 2009); see also Schaick, supra n. 20.

29

 See R.A. van der Pol & D.T. Boks, Boekbespreking van A.C. van Schaick, Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, Procesrecht, Deel 2, Eerste aanleg, 2011, 2012(2) Tijdschrift voor Civiele Rechtspleging.

30

 De Bock, supra n. 7.

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sloppy lawyer – or will he actively examine the facts of the case? The first option is not very attractive, as it is not the task of the court to point out to lawyers and their clients that the judgment was partly due to a ‘wrong procedural attitude.’ Furthermore, it must be kept in mind that the court’s effort is aimed at achieving the purpose of the procedure, namely the clarification of facts, grounds, and challenges in order to be able to decide as much as possible the true conflict that keeps the parties divided, instead of a more or less hypothetical dispute. However it remains important for judges to keep in mind the limits of being (too) active, more in particular where it concerns so-called ‘untouched issues.’ According to Supreme Court jurisprudence the judge is not free to base his decision on legal grounds or challenges that could be deduced from certain facts and circumstances, but that have not been asserted by the plaintiff as a basis for his claim or by the defense as a basis for his challenge, because by doing so the other parties fundamental right to be heard could be violated.31 This fundamental principle of Art. 6 ECHR and Art.19 DCPC32 has become the bottom line for active judges. 6. Russian Mirror My learned co-author in this article, Judge Ruth van der Pol, elucidated three basic questions that arise in regards to the truth in the civil process. They are as follows: 1) whether courts should or have to seek for truth in civil process; 2) what is the truth that they should or have to seek in the process; and 3) how do courts seek for truth? This way to analyze our topic seems to be reasonable. For Russia, all three questions are problematic. 6.1. Should Russian Courts Seek for Truth in Civil Process? It can be firmly said at the outset that civil courts in Russia are not expressly required by law to find the truth. This word, truth (or istina in Russian), is not even mentioned in Russian primary law. Nevertheless, it is used very actively in the doctrine, which still influences the conscience of judges and revives what has been expressly abdicated in black letter law. A separate issue is whether the courts actually have to seek for truth even if they are not required to do that by law. This way to formulate the first question in our analysis refers not to the law but to the realities of our life, in which the court just cannot avoid seeking for truth in order to carry out its judicial function. My learned co-author mentioned this argument and it seems quite strong so long as we consider that the civil process can reveal and actually does reveal truth. This is already the 31

 E.ON Benelux Generation N.V. / [Verweerder], HR 31 maart 2006, NJ 2006/233, available at (accessed Mar. 11, 2015).

32

 Article 19 of the DCPC codifies the parties’ right to be heard equally and stiputales expressis verbis that the judge does not ground his / her decision, detrimental to one of the parties, on documents or other evidence the other party has not been able to sufficiently react on.

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area of the second question of our analysis, namely as to what is truth, and we will discuss it below. For now, let us still concentrate on the first question. Russia has a long track of debate as to whether a court must find the truth in the process. This debate is a part a larger struggle between the so-called inquisitorial and adversarial models of process which has been in place in Russia since the XIX century until now. It is assumed that the inquisitorial system requires a court to use every opportunity available to find truth, while the adversarial system concentrates more on the procedural balance of the parties in trial.33 However, the courts of Imperial Russia, before they underwent the famous reforms of 1864, were criticized for being both inquisitorial and ineffective in searching for the truth at the same time: the process was mostly written and was based on the formalistic approach as to evidence.34 After the reforms, the courts started being criticized for being too adversarial, ‘since an inexperienced party might build his position in a wrong way, might not provide necessary evidence, and thus fail in even the most righteous case’ (emphasis added).35 This line of movement from the adversarial process back to the inquisitorial process received its complete realization in Art. 5 of the 1923 RSFR Civil Procedure Code and, consequently, in Art. 14 of the 1964 RSFSR Civil Procedure Code; both rules required courts to discover all actual circumstances and facts of a case irrespective of the positions of the parties thereto. In other words, Soviet courts stuck to the facts as hard as Dickens demanded in the novel mentioned by my learned co-author. After the dissolution of the Soviet Union, the inquisitorial approach has been again abdicated. Currently Russia has two instruments regulating civil procedure: Civil Procedure Code [hereinafter CPC], applied by courts of general jurisdiction in most civil cases, and Arbitration Procedure Code [hereinafter APC], applied by arbitration courts in commercial cases. Both of those instruments in identical language (Art. 12 CPC and Art. 9 APC) require as follows: While retaining its independence objectivity and impartiality, the court shall lead the process, shall explain to the persons taking part in the case their rights and duties, shall warn of the consequences of the performance or non-performance of the procedural acts, shall render to the persons taking 33

 Малышев К.И. Курс гражданского судопроизводства. Т. 1 [Malyshev K.I. Kurs grazhdanskogo sudoproizvodstva. T. 1 [Kronid I. Malyshev, 1 Course of Civil Proceedings]] (2nd ed., Tipografiya M.M. Stasyulevicha 1876]] (cited in Гражданский процесс: Хрестоматия: Учебное пособие [Grazhdansky protsess: Khrestomatiya: Uchebnoe posobie [Civil Procedure: Chrestomathy: Textbook]] 207–208 (Mikhail K. Treushnikov, ed.) (2nd ed., Gorodets 2005) [hereinafter Civil Procedure: Chrestomathy]).

34

 Гессен И.В. Судебная реформа [Gessen I.V. Sudebnaya reforma [Iosif V. Gessen, Judicial Reform]] 7 (Tipolitografiya F. Waisberga i P. Gershunina 1905).

35

 Яблочков Т.М. Учебник русского гражданского судопроизводства [Yablochkov T.M. Uchebnik russkogo grazhdanskogo sudoproizvodstva [Tikhon M. Yablochkov, Textbook on Russian Civil Proceedings]] (2nd ed., Knigoizdatel’stvo I.K. Gassanova 1912) (cited in Civil Procedure: Chrestomathy, supra n. 33, at 213).

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part in the case assistance in exercising their rights, shall create conditions for an all-round and complete study of the proofs and for the establishment of actual circumstances and for the correct application of the legislation in the consideration and the resolution of civil cases.36 The legislative intent is quite obvious if we compare this rule with Art. 14 of the 1964 RSFSR Civil Procedure Code: courts are not any more obliged to reveal all actual circumstances by themselves, they only provide conditions for their establishment in an adversarial trial. It is quite clear as well, why the search for truth was relinquished. Soviet inquisitorial process was formalistic and ineffective; moreover, in criminal area it led to the repressions that are well-recorded in history. The changes in law were driven by the intention to make the process less formalistic and revive it by introducing competition in a dispute. This novation, however, can hardly be considered effective.37 First of all, the Code preserved certain elements of inquisitorial process, such as an obligation of a court to establish certain specific facts (otherwise the judgment may not survive on appeal).38 Moreover, the doctrine remained largely the same. Analyzing the changes, some authors stated cautiously that under the new law, Russian courts do not have to seek for truth outside of what is posed by the parties to a dispute and the opposite would violate Art. 123 of the Constitution of the Russian Federation.39 Yet the others, including the acting judges of Russian arbitration courts, disagreed and insisted that finding the truth, on the contrary, is essential for justice.40 Of course, what 36

 Russian Civil Procedure Code, translated by the WIPO, available at (accessed Mar. 11, 2015).

37

 Решетникова И.В. Тенденции развития гражданского процессуального законодательства // Российский юридический журнал. 1999. №  1(21). С. 7 [Reshetnikova I.V. Tendentsii razvitiya grazhdanskogo protsessual'nogo zakonodatel'stva // Rossiiskii yuridicheskii zhurnal. 1999. No. 1(21). S. 7 [Irina V. Reshetnikova, Tendencies of Development of the Legislation on Civil Procedure, 1999(1) Russian Juridical Journal 7]].

38

 For example, for the purposes of damages claims it is specifically established by both the Supreme Court and the Supreme Arbitration (Commercial) Court that the calculation of damage must be confirmed by specified types of documents (Joint Resolution of the Plenums of the both Courts No. 6/8 of Jule 1, 1996). This type of rules is, in fact, one of the most effective guarantees against arbitrary decisions. For further discussion, see, e.g., Гражданский процесс: Учебник [Grazhdanskii protsess: Uchebnik [Civil Procedure: Textbook]] 32–33 (Valery A. Musin et al., eds.) (Prospekt 1998).

39

 Сапожников С.А., Устюжанинов В.А. Принцип состязательности и судебной истины в новом АПК РФ // Арбитражная практика. 2003. № 2. С. 31–34 [Sapozhnikov S.A., Ustyuzhaninov V.A. Printsip sostyazatel’nosti i sudebnoi istiny v novom APK RF // Arbitrazhnaya praktika. 2003. No. 2. S. 31–34 [Sergey A. Sapozhnikov & Vladimir A. Ustyuzhaninov, The Principle of Adversarial Process and the Judicial Truth in the New Arbitration Procedure Code of the Russian Federation, 2003(2) Arbitration Practice 31–34]].

40

 Шумилова Л.Ф. Принципы состязательности и объективной истины как фундаментальные начала правоприменительной практики // Журнал российского права. 2005. № 11 [Shumilova L.F. Printsipy sostyazatel’nosti i obyektivnoi istiny kak fundamental’nye nachala pravoprimenitel'noi praktiki // Zhurnal rossiiskogo prava. 2005. No. 11 [Lyudmila F. Shumilova, Principles of Adversarial Process and Objective Truth as Fundamentals of the Law Enforcement Practice, 2005(11) Journal of Russian Law]].

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seems to prevail in the doctrine and jurisprudence is a somewhat middle-ground position saying that both the search for truth and adversarial process can perfectly live together. While this idea looks great on paper, this suggestion may take strange forms in reality of life: after all, both of these concepts meet each in the head of one and the same person, the judge. The outcome of this meeting depends on his or her professionalism, experience, conscience and, frankly, imagination. In Russia there are no jury trials in civil cases. The Russian judge is not only an administrator of an adversarial trial, he is also the one who examines the evidence (as Russian law requires, ‘in accordance with his inherent conviction’), and renders a judgment based upon the facts that he himself considers established or proven. Possessing all these powers, he can simply tailor both the process and the judgment in order to reach the outcome that he considers fair and corresponding with the truth he believes. Judges admit that they are subjective in revealing objective facts and do not see any contradiction in that.41 The problem is that a judge might be mistaken in what exactly he considers the truth and where he found it. However, it would be a mistake to think that Russian civil process always entails searching for the truth, whatever it is meant to be. In fact, sometimes courts use the formality of adversarial process proclaimed in Russian procedural law in order to refrain from reality. For example, in 1997 a district court in Moscow sustained the lawsuit by Yury Luzhkov, then the mayor of Moscow, against the party ‘Democratic Choice of Russia’ and newspaper ‘Russian Telegraph’ for publicly calling the mayor ‘the richest businessman in the city, who took over everyone.’42 At the same time, it was a matter of common knowledge that Luzhkov’s wife was one of the major Russian tycoons and that she earned all of her fortune within his years in office.43 In 2011, when Luzhkov left the office, the same court dismissed his claim against the Duma head Sergey Naryshkin who characterized Luzhkov’s management of city as ‘incompetent’ and ‘corrupt.’44 Therefore, the answer to the first question seems to be as follows: courts are not required to search for the truth in the process, but they usually think that they should, and sometimes they really do. 41

 Judge Shumilova, currently serving in the 14th Appelate Arbirtation Court puts that as follows: ‘In order to have justice done in the case, the court’s findings must be based on undoubtly established facts. The judge, evaluating the evidence and taking measures to establish the truth in the case, is to some extent subjective, stating in its decision the arguments that led him to resolve the legal dispute on the right so and not otherwise. There are reasons of objective nature for that. It is clear that law enforcement agents act by perceiving and applying only the formal law, which contains general characteristics of the permissibility of a particular social behavior and, as a rule, not recognizing the individuality of the situation in which there may be a deviation from the normal social behavior. And this is understandable: the legislator cannot account for the diversity of life.’ Shumilova, supra n. 41.

42

 Боннер А.Т. Проблемы установления истины в гражданском процессе: Монография [Bonner A.T. Problemy ustanovleniya istiny v grazhdanskom protsesse [Alexander T. Bonner, Problems of Finding the Truth in Civil Proceedings: Monograph]] (Yuridicheskaya kniga 2009).

43

 Id.

44

 Id.

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6.2. What is Truth? When Pilate asked Jesus, ‘What is truth?’, Jesus answered nothing, and Pilate went to the Jews and said to them, ‘I find no guilt in Him.’ Philosophy offers several types of answers as to what the truth is. Some authors thought that truth is what corresponds to objective reality, what exists as itself and irrespectively of anyone to perceive it (Aristotle, Hegel, Descartes). Others opined that something becomes a matter of truth, only when it is confirmed empirically (Locke, Schlick). Yet, others think that truth is always a subjective thing and that it is constructed on the basis of one’s specific knowledge, previous experience, psychic features (Avenarius, Mach), or that it is a product of social agreement (Kuhn, Poincare). Finally, there are also interesting, although maybe quite marginal, views that truth cannot be expressed or found (Tarski) or even it does not exist at all (Derrida). The way in which you perceive truth determines your journey in seeking the truth. It is quite easy to notice that only the first and the second views on truth make it possible to require courts to search for it. Soviet theory of legal process traditionally looks at the concept of truth-seeking through the prism of Lenin’s celebrated essay ‘Materialism and Empirio-Criticism.’45 In that piece, Lenin argued that truth is an objective thing and it is fully cognizable through the use of the methods of dialectical materialism and elucidated those methods. Lenin was, indeed, not the first person that who used the term ‘objective truth;’ this stems from the works by Marx and Engels and, before them, Descartes. Still, it is in Lenin’s interpretation that the materialist theory received reflection in Soviet procedural law. The historical context of the essay is quite remarkable and yet important for our topic: it was written as a reaction to the work ‘Empiriomonism’ by Alexander Bogdanov, Lenin’s political rival within the Bolshevik party.46 Some commentators suggest that the only aim of the essay was to destroy Bogdanov and his supporters in the political struggle, and that Lenin’s analysis could not be well-founded, because for the three weeks that were spent on the essay he was physically unable to read all 45

 Клейнман А.Ф. В.И. Ленин о законности, суде и прокуратуре [Kleinman A.F. V.I. Lenin o zakonnosti, sude i prokurature [Alexander F. Kleinman, V.I. Lenin on Legality, Courts and Prosecution]] 22 (Moscow State University Press 1961); Карева М.П. Учиться у  В.И. Ленина разоблачению буржуазной идеологии и  ревизионизма. (К 50-летию выхода в  свет труда В.И. Ленина «Материализм и эмпириокритицизм») // Советское государство и право. 1959. № 6. С. 13–30 [Kareva M.P. Uchit’sya u V.I. Lenina razoblacheniyu burzhuaznoi ideologii i revizionizma. (K 50-letiyu vykhoda v svet truda V.I. Lenina ‘Materializm i empiriokrititsizm’) // Sovetskoye gosudarstrvo i pravo. 1959. No. 6. S. 13–30 [Mariya P. Kareva, th To Study from V.I. Lenin as to How to Unmask the Bourgeios Ideology and Revisionism. (To the 50 anniversary of publication of V.I. Lenin’s ‘Materialism and Empirio-Criticism’), 1959(6) Soviet State and Law 13–30]].

46

 Bogdanov, now forgotten, was one of the eminent figures of his time; apart from being a socialist politician, he wrote science fiction and works on philosophy, culture and economics, he created his own science of ‘tectology’ and, in a way, provided a foundation for the systems theory. His death matched perfectly to the way he lived: he killed himself during a blood transfusion experiment that he carried out in the search for eternal youth. Further Reading: Zenovia A. Sochor, Revolution and Culture: The Bogdanov-Lenin Contraversy (Cornell University Press 1988).

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the cited sources.47 The polemist language that Lenin employed in the essay provided a considerable hindrance in discerning the actual arguments in support of the Marxist views (but surely made the text attractive for any reader). Lenin concentrates on showing why his opponents are not Marxists, while the fact that Marxist views are right does not need any proof, in his opinion. This, of course, affected the later philosophy and legal practice. Lenin shows why Bogdanov and some other Marxists authors are idealist, reactionist, and anti-Marxist and for that he needed to formulate what was Marxist to him. He bases the truly Marxist approach to material, knowledge and truth as follows: 1) absolute objective truth exists and it is fully cognizable; 2) our knowledge about the absolute truth is relative (meaning relative truth), but it is getting more absolute with time and effort; 3) nature is governed by objective causality and necessity; 4) human behavior is a product of objectively determined factors and not a free choice; 5) there is no place for presumptions and fictions such as ‘economy of human thought;’ 6) human thought is ‘economical’ only when it correctly reflects objective truth, and the criterion of this correctness is practice, experiment, and industry; and 7) space and time are objective phenomena and not products of human mind. This formed the ‘new testament’ for our academic thinking. These postulates received implementation in Soviet philosophy and Soviet law; for example, a major law professor Olimpiad Ioffe wrote: ‘Legal scholarship does not create any special theory of causality, but generates, basing itself upon the categories of Marxist-Leninist philosophy, the rules that would allow in their application to discern the causal link in every particular case.’48 Started as a basis for cognition in Soviet criminal process, the ‘Leninist testament’ then was adopted in the civil process as well.49 It is not the topic of this article to discuss the advantages and disadvantages of materialism. Moreover, Lenin’s ideas shown above seem to be rational and productive for judicial cognition. What was probably missing is the methodical body or protocol of procedures that would help a judge to achieve the stated goals. Without the latter, this Leninist theory was at risk of dwindling into a vicious circle: requiring the proper evidence to reflect objective truth (which, in its turn, was to be discerned on the basis of proper evidence). We will look into the methods in the third part of this analysis. 47

 Robert Service, Lenin: A Biography 193 (Macmillan Pub. 2000).

48

 Иоффе О.С. Обязательственное право [Ioffe O.S. Obyazatel’stvennoe pravo [Olimpiad S. Ioffe, Law of Obligations]] 113 (Yuridicheskaya literatura 1975).

49

 Гурвич М.А. Принцип объективной истины советского гражданского процессуального права // Советское государство и право. 1964. № 9. С. 98–107 [Gurvitch M.A. Printsip obyektivnoi istiny sovetskogo grazhdanskogo protsessual’nogo prava // Sovetskoye gosudarvstvo i pravo. 1964. No. 9. S. 98–107 [Mark A. Gurvitch, Principle of Objective Truth of Soviet Civil Procedural Law, 1964(9) Soviet State and Law 98–107]].

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So far, we have discussed what was truth for Soviet civil procedure. But our main goal here is to provide the answer that the Russian theory expects as to the question ‘what is truth?’. We have observed above that Russian law does not any more require the court to establish all the actual circumstances of a concrete case at bar; therefore, it might be wise to assume that the truth is understood differently in modern Russia. This assumption becomes even more plausible given the modern developments of cognition in science, such as the experiments of knowledge representation by Bartlett and word superiority by Krueger. Nevertheless, most modern publications on Russian civil procedure do not show that there is any substantial change in regards to the concept of ‘objective truth:’ although most of the authors admit that the objective truth principle must yield to the needs of the adversarial process, they still believe that the truth is objective and cognizable. The main area of discussion is whether the truth that a court is seeking is an ‘objective truth’ or ‘relative truth,’ or a combination of those two Marxist-Leninist terms.50 Professor Anatoly Vlasov in his textbook mentions the ‘principle of judicial truth,’ according to which ‘a court may legally apply juridical norm not to some abstractions but to concrete legal facts, fully and correctly established in the order prescribed in the law.’ He expressly refuses to employ a term ‘objective truth’ in the beginning, but the more you read, the more you discern the Marxist discourse:51 In legal literature, the results of judicial cognition were taken as the objective truth. In this case, one can hardly agree with this statement, because truth cannot be ‘objective’ or ‘non-objective’ – either there is truth or it is no truth . . . Primarily, the results of the assessment of the materials of a case cannot be considered as absolute truth and be opposed to relative truth. Between these types of objective truth, there can be no impassable boundary. The simplest truth is always incomplete . . . Could a result of judicial cognition be a true reflection of reality, i.e. whether it has a true character? This question should receive an affirmative answer. Judicial investigation of the facts of a case can and should lead to the full and correct knowledge of a particular set of facts relevant to the proper resolution of the case. 50

 Бех К.А., Гривас О.Я. Принцип судебной истины в гражданском процессе и способы ее познания // Материалы V Международной студенческой электронной научной конференции «Студенческий научный форум» (15 февраля – 31 марта 2013 г.) [Bekh K.A., Grivas O.Ya. Printsip sudebnoi istiny v grazhdanskom protsesse i sposoby ee poznaniya // Materialy V Mezhdunarodnoi studencheskoi elektronnoi nauchnoi konferentsii ‘Studencheskii nauchnyi forum’ (15 fevralya – 31 marta 2013 g.) [Kseniya A. Bech & Olga Ya. Grivas, The Principle of Judicial Truth in Civil Procedure and the Means of Cognition Thereof, in Materials of the 5th International Student Electronic Scientific Conference ‘Students Scientific Forum’ (February 15 – March 31, 2013)]], (accessed Mar. 11, 2015).

51

 Власов А.А. Гражданское процессуальное право: Учебник [Vlasov A.A. Grazhdanskoe protsessual’noe pravo: Uchebnik [Anatoly A. Vlasov, Civil Procedural Law: Textbook]] (Velbi 2003).

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Is it possible to call the outcome of legal knowledge an absolutely complete study of the circumstances of the case? In the theory of knowledge of dialectical materialism every act of cognition is seen as a dialectical combination, as the unity of the absolute and relative truths. A prominent professor of civil procedure of Moscow State Law Academy, Maria Shakaryan in her textbook also uses a term ‘judicial truth’ and appears to be more formalist and practical in her argument. She opined that there is no reason to spend state money on trial if it does not establish the truth, and, interestingly, the fact is truth is cognizable in principle flows from the law (and not from the nature, as one would think):52 Is such a  tremendous change in the language of procedural norms [as opposed to the Soviet procedural law – our addition] a ground to say that now the principle of objective (judicial) truth in civil procedure does not exist any more or at least is seriously limited? In general terms, we would answer this question in the negative for the following reasons. It seems that the truth as the ultimate goal of civil procedure remains unchanged. Only referring to the need to establish the actual circumstances of civil cases, the law establishes a rather complicated, time-consuming and costly procedure as civil proceedings. In case if we agreed that the establishment of the truth as a goal of the process no longer exists, we would therefore have to abandon the civil proceedings as established by the procedural law the order of resolution of civil cases . . . It is extremely important to underline that notwithstanding that the changes in the law, many procedural theorists still think that it is possible to establish a truth in court. And this view is fully based upon the law. Professor Mikhail Treushnikov of Moscow State University opined in the most direct and clear way as to what the truth is (that the truth is the truth):53 If a court did not establish fully and correctly the real factual circumstances in the case, rights and obligations of the parties, i.e. the truth, then it cannot make a lawful decision. A true statement is a statement that correctly reflects objective reality. The truth in civil procedure means a correct statement of judge (judges) as to the really factual circumstances of a case in the right legal qualification. 52

 Гражданское процессуальное право: Учебник [Grazhdanskoe protsessualnoe pravo: Uchebnik [Civil Procedural Law: Textbook]] (Mariya S. Shakaryan, ed.) (Prospekt 2004).

53

 Гражданский процесс: Учебник [Grazhdanskii protsess: Uchebnik [Civil Procedure: Textbook]] (Mikhail K. Treushnikov, ed.) (2nd ed., Gorodets 2007).

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There are, however, certain Russian professors who do not seem to adhere to the majority’s Marxist truth discourse, such as Valery Musin of St. Petersburg State University (and his colleagues and pupils)54 as well as Vladimir Yarkov55 and Irina Reshetnikova of Urals State Law Academy. But keeping silence as to the dialecticalmaterialist concept of civil procedure, they do not appear to come up with something else that would form a philosophical foundation of the civil process for new Russia. As a result, the Marxist-Leninist approach is still the most influential in the Russian civil procedure doctrine. Consequently, the answer to the question posed, i.e. ‘what is truth?’ in Russian civil procedure is what correctly reflects the objective reality. Or, more specifically, truth is what, in a judge’s correct statement, reflects the objective reality. 6.3. How to Find out the Truth? My co-author provided an extensive account of the methodology as to how the Dutch judge searches for truth. This methodology is not only extremely interesting; it may be the one that is so needed in the Russian judicial system. Under the CPC, in every case a court must determine the ambit of circumstances to be established in the process. Some of those circumstances are stipulated by the law or binding decisions of higher courts. These circumstances shall be proven as facts by the parties through the evidence they provide. Every party must prove what it refers to (unless another distribution of burden of proof is established by law). A judge assesses the evidence in accordance with his or her inherent conviction based on an all-out, complete, objective, and direct investigation of all of the evidence in the case, and no evidence has a predetermined value for a judge. Every piece of evidence must receive a finding as to its admissibility, relevance, and accuracy, and the evidence as a whole must be sufficient for a judgment to be rendered on its basis. In a judgment, a court must explain why it preferred certain evidence against an opposing piece of evidence. This, in very general terms, concludes the legal framework of judicial truth-seeking. Following the adoption of the new CPC in 2002, Russian Supreme Court issued a celebrated Resolution No. 23 of December 19, 2003, ‘On Judicial Decision.’ In this binding resolution, the Supreme Court specified the general characteristics that any judgment must satisfy. They are not many. Under Art. 195 CPC, the judgment must be lawful and well-established. The Supreme Court clarified these two terms and stated that a judgment is well-established when the facts relevant for the case are confirmed by the evidence assessed by the court that made the judgment. It also stipulated that a judgment must be divided into two parts, the motivation and the 54

 Civil Procedure: Textbook, supra n. 39.

55

 Гражданский процесс: Учебник [Grazhdanskii protsess: Uchebnik [Civil Procedure: Textbook]] (Vladimir V. Yarkov, ed.) (6th ed., Wolters Kluwer 2006).

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resolution, and that the facts established in the motivation must correspond to the conclusions made in the resolution. Finally, it stated that courts are not bound by the expert opinions submitted to them and they may look into the contents and methods of an expert examination. It must be noted that the Resolution ‘On Judicial Decision’ proved itself as an extremely useful tool to lower the level of arbitrariness in Russian courts. But a tool against arbitrariness can hardly ensure that a court finds the truth that, in the terms of Russian doctrine, reflects objective reality. Russian courts lack concrete methods of searching for truth. Professor Mark Gurvitch, one of the most famous Soviet jurists, argued, in a sense, that the objective truth will undoubtedly be found in the process, if the regular procedural guarantees are established, such as: equality of arms in adversarial process (although in the Soviet Union there was no adversarial process), as well as the menace of criminal liability for false testimony and appeals mechanisms, nothing else.56 Russian judges are supposed to determine the accuracy of evidence (including the words of the parties) by assessing it ‘in accordance with their inner conviction’ and comparing various pieces of evidence taken together. They may also refer to experts, if the parties ask for that, but an expert opinion is not binding for them either. This provides enormous freedom of actions and, in the end of the day, leads to one basic question: which of the parties does a judge believe? Subjective belief takes considerable space in Russian civil process. Referring back to certain features of the basic philosophical foundation of the Soviet civil process, Lenin’s ‘Materialism and Empirio-Criticism,’ Lenin was so sure that Marxism was right that he put it as an a priori truth outside of any discussion. An acting judge of an arbitration court in Russia, also mentioned above, admits that she is sometimes subjective when she is looking for objective truth. The third question posed in this article is as follows: how do Russian courts find the truth? The answer to this question will evidently require an all-out sociological survey, which is not an object of this comparative legal analysis. Therefore, there will be no answer to this question now. However, a hypothesis, subject to future confirmation or disproof, would be as follows: It may very well be, that Russian civil procedure puts as a theory a goal of finding objective truth, but, having no objective instruments for that, does so in the most subjective way possible: by putting a judge in a middle of indeterminacy and letting him or her make any decision without any meaningful guidance. 7. Conclusion The search for truth in civil courts is an area of fierce debate both in The Netherlands and in Russia. Yet, in Russia it is much less settled. The Dutch legal system shows a more or less consolidated view as to whether the courts should seek for truth, how the truth should be perceived and sought in civil process. On the other 56

 Gurvitch, supra n. 50.

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hand, Russian law in this regard is still in transition from old Soviet approaches to something new and quite unclear. The article shows a peculiar dominance of MarxistLeninist concepts in the modern Russian doctrine and their practical implications. The approaches adopted in The Netherlands, a continental legal system just as Russia itself, might be of use for the new Russian civil procedure. References Ahsmann, Margreet J.A.M. De weg naar het civiele vonnis (Boom Juridische uitgevers 2011). Asser, Willem D.H. Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, 3 Procesrecht: Bewijs 2, 71, 75, 80 (Kluwer 2013). Bakels, F.B., et al. Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, 4 Procesrecht: Hoger beroep (Kluwer 2009). Bock, R.H. de. Tussen waarheid en onzekerheid: over het vaststellen van feiten in de civiele procedure (= 9 Burgerlijk Proces & Praktijk) (Rob Rutgers et al., eds.) (Kluwer 2011). Brink, V. van den. De waarheid is van iedereen, 2014(5) Nederlands Tijdschrift voor Burgerlijk Recht. Brink, V. van den. Stellen, betwisten bewijzen – een handleiding, 2008(4) Praktisch Procederen. Dickens, Charles. Hard Times (Vintage Classics 2012). Groot, G. de. De vaststelling van feiten in de civiele procedure, 2012(2) Tijdschrift voor Civiele Rechtspleging. Hammerstein, A. De invloed van artikel 6 lid 1 EVRM op het burgerlijk procesrecht, in Europeanisering van het Nederlands recht: opstellen aangeboden aan Mr. W.E. Haak 220–233 (G.J.M. Corstens et al., eds.) (Kluwer 2004). Korthals Altes, E., & Groen, H.A. Mr. C. Asser’s Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, 7 Procesrecht: Cassatie in burgerlijke zaken (Kluwer 2005). Rhee, C.H. (Remco) van, & Verkerk, Remme. The Netherlands: A No-Nonsense Approach to Civil Procedure Reform, in Civil Litigation in China and Europe: Essays on the Role of the Judge and the Parties (= 31 Ius Gentium: Comparative Perspectives on Law and Justice) 259–280 (C.H. (Remco) van Rhee & Fu Yulin, eds.) (Springer 2014). Rijssen, G. van, & Pol, R.A. van der. Civiel deskundigenbewijs, 2013(4) Tijdschrift voor Civiele Rechtspleging. Schaick, A.C. van. Het burgerlijk recht de baas? Over de verwevenheid van burgerlijk recht en burgerlijk procesrecht (Kluwer 2009). Schaick, A.C. van. Mr. C. Asser’s Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, 2 Procesrecht: Eerste aanleg (Kluwer 2011). Scholten, Paul. Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, Algemeen deel 9 (W.E.J. Tjeenk Willink 1974).

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Service, Robert. Lenin: A Biography 193 (Macmillan Pub. 2000). Sochor, Zenovia A. Revolution and Culture: The Bogdanov-Lenin Contraversy (Cornell University Press 1988). Tjong Tjin Tai, Eric. Waarheid in het burgerlijk proces, bespreking NJV preadvies, 87(22) Nederlands Juristenblad (2012), available at (accessed Mar. 11, 2015). Verkerk, Remme. Fact-Finding in Civil Litigation: A Comparative Perspective (Intersentia 2010). Vranken, Jan B.M. Mr. C. Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht, Algemeen deel ****, Een synthese 62–82 (Kluwer 2014). Zuckerman, Adrian. Zuckerman on Civil Procedure: Principles of Practise ¶ 1.15 (Sweet & Maxwell 2006). Гессен И.В. Судебная реформа [Gessen I.V. Sudebnaya reforma [Iosif V. Gessen, Judicial Reform]] 7 (Tipolitografiya F. Waisberga i P. Gershunina 1905). Клейнман А.Ф. В.И. Ленин о законности, суде и прокуратуре [Kleinman A.F. V.I. Lenin o zakonnosti, sude i prokurature [Alexander F. Kleinman, V.I. Lenin on Legality, Courts and Prosecution]] 22 (Moscow State University Press 1961). Малышев К.И. Курс гражданского судопроизводства. Т. 1 [Malyshev K.I. Kurs grazhdanskogo sudoproizvodstva. T. 1 [Kronid I. Malyshev, 1 Course of Civil Proceedings]] (2nd ed., Tipografiya M.M. Stasyulevicha 1876]]. Решетникова И.В. Тенденции развития гражданского процессуального законодательства // Российский юридический журнал. 1999. № 1(21). С. 7 [Reshetnikova I.V. Tendentsii razvitiya grazhdanskogo protsessual'nogo zakonodatel'stva // Rossiiskii yuridicheskii zhurnal. 1999. No. 1(21). S. 7 [Irina V. Reshetnikova, Tendencies of Development of the Legislation on Civil Procedure, 1999(1) Russian Juridical Journal 7]]. Яблочков Т.М. Учебник русского гражданского судопроизводства [Yablochkov T.M. Uchebnik russkogo grazhdanskogo sudoproizvodstva [Tikhon M. Yablochkov, Textbook on Russian Civil Proceedings]] (2nd ed., Knigoizdatel’stvo I.K. Gassanova 1912). Information about the authors Ruth A. van der Pol (Leeuwarden, The Netherlands) – Judge at the Court of Appeals Arnhem-Leeuwarden (Zaailand 106, Leeuwarden, 1704 8901 CA, The Netherlands; e-mail: [email protected]). Anton Petrov (St. Petersburg, Russia) – Founder at the Center of European Law (36 Malodetskoselsky av., St. Petersburg, 190013, Russia; e-mail: tonypetrov@ gmail.com).

Republic of Crimea: A Two-Day State

Anatoly Pronin, Voronezh State University (Voronezh, Russia)

The Crimean situation has put self-determination, secession and accession back at the top of the international law agenda. The article deals with questions of the procedure of Crimea’s self-determination and accession to the Russian Federation from the point of view of international law. Special attention is paid to the analysis of the ICJ Advisory Opinion on the question of the accordance with international law of the unilateral declaration of independence in respect of Kosovo in its interrelation with the Crimea case. The text also includes an unofficial translation of an accession treaty between Russia and the Republic of Crimea. With the Crimean Republic’s declaration of independence, it is the most important document for the legal analysis of the situation. Keywords: Law of treaties; Russian-Ukrainian relations; state formation and sovereignty; recognition of states; non-recognition in international law. DOI: 10.17589/2309-8678-2015-3-1-133-142

The problem of recognition of states and governments has neither in theory nor in practice been solved satisfactorily. Hardly any other question is more controversial, or leads in the practice of states to such paradoxical situations. Hans Kelsen1 1. Introduction The author of the text has, on several occasions, heard from some Russian legal scholars the discourse that ‘Crimea is Ours,’ they were professors of law, and that greatly surprised me. Speaking about the Crimea situation and about the war in Eastern Ukraine, they have either forgotten their knowledge in the sphere of law or used it in accordance with the proverb ‘Little thieves are hanged but great ones 1

 Hans Kelsen, Recognition in International Law: Theoretical Observations, 35(4) Am. J. Int'l L. 605 (1941).

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escape.’ From our point of view, such a situation may be explained as an example of the rationalization of evil.2 The logic of the legal reasoning that is used by the Russian state and by the devotees of Crimea’s accession to Russia among Russian legal scholars is extremely similar to the ideas of the Stalinist era’s tradition of soviet international law. Soviet international law doctrine broadly allows the possibility of territorial changes on the grounds of law and justice . . . The enlargement of the USSR territory is primarily possible by means of a plebiscite that is held on the question of the territorial accession of a transferred region or of the incorporated state . . . According to the Soviet state’s stance on international law, a plebiscite may, for example, be held as a method of reunification that is an accession of former Soviet territories which were taken by force.3 The peculiarity of this conflict is that all of its actors use the rules of international law to justify their position. President Putin stated in a speech before the Russian parliament that the referendum in Crimea was ‘in full compliance with democratic procedures and international norms.’ While Russia argues in terms of ‘protecting Russian-speaking population’ and ‘self-determination’ other subjects of international relations believe that such actions infringe international law. It should be noted that no state (except Russia) recognized the independence of Crimea before it was joined to Russia. International law recognizes that if a state uses force against another state, and that use of force results in the changing of the territorial boundaries of the latter without its consent, the international community is obliged to withhold recognition of this change of boundaries. That is the norm of customary international law, which was confirmed in the UN Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States. 2. Ontological Problem of Crimea’s Accession to Russia Crimean independence was, right from the beginning, instrumental in finally joining Russia that differentiates the Crimean case from other contemporary cases of self-determination.4 From the point of view of international law, the accession of 2

 Jo-Ann Tsang, Moral Rationalization and the Integration of Situational Factors and Psychological Processes in Immoral Behavior, 6(1) Review of General Psychology (2002). doi:10.1037//1089-2680.6.1.25

3

 Кожевников Ф.И. Советское государство и международное право [Kozhevnikov F.I. Sovetskoe gosudarstvo i mezhdunarodnoe pravo [Fyodor I. Kozhevnikov, Soviet State and International Law]] 181 (Poligrafkniga 1948).

4

 Self-Determination and Secession in International Law 297 (Christian Walter et al., eds.) (Oxford University Press 2014).

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Crimea to Russia may be descried as two distinct acts. The first act is an adoption of the Declaration of Independence of the Republic of Crimea5 by the Supreme Council of Crimea and the Sevastopol City Council on March 11, 2014, and the subsequent Statement by the Russian Ministry of Foreign Affairs regarding the adoption of the Declaration of Independence of the Autonomous Republic of Crimea and Sevastopol.6 Such a statement is considered to be a political recognition of the state meaning that the recognizing state is willing to enter into political and other relations with the recognized state. It must be mentioned that political recognition is the first step of the state recognition process and it does not lead to legal obligations. Hans Kelsen writes that the political act of recognition, since it has no legal effect whatsoever, is not constitutive for the legal existence of the recognized state.7 It is rather interesting that Crimean Republic did not make itself an independent state with the adoption of the Declaration of Independence. Due to its art. 1 ‘[i]f a decision to become part of Russia is made at the referendum of the March 16, 2014, Crimea including the Autonomous Republic of Crimea and the city of Sevastopol will be announced an independent and sovereign state with a republican order.’ The Supreme Council of Crimea declared the Crimean Republic an independent state on the of March 17, 2014.8 Due to this act, Ukrainian law and state authorities are not working on the territory of the Republic of Crimea. The second stage of a state recognition is legal recognition. In its turn, such recognition leads to the legal obligations between the states and could be achieved only by a process of international treaty negotiation. The second act is an incorporation of the newly created state, the Republic of Crimea, into the Russian Federation by signing the ‘Treaty between the Russian Federation and the Republic of Crimea on the Acceptance of the Republic of Crimea into the Russian Federation and on Creation of New Federative Entities within the Russian Federation’ on the March 18, 2014, its translation is added to the text. That was the only treaty signed by the self-determining Republic of Crimea, so we could see that, from the point of view of international law, two different actions: legal recognition of a state and incorporation of a new state into another state, were united in the single act of signing an international treaty. 5

 Декларация о независимости Автономной Республики Крым и города Севастополя [Deklaratsia o nezavisimosti Avtonomnoi Respubliki Krym i goroda Sevastopolya [Declaration of Independence of the Republic of Crimea and City Sevastopol]], at (accessed Mar. 13, 2015).

6

 Statement by the Russian Ministry of Foreign Affairs Regarding the Adoption of the Declaration of Independence of the Autonomous Republic of Crimea and Sevastopol, (accessed Mar. 13, 2015).

7

 Kelsen, supra n. 1.

8

 Постановление Государственного Совета Республики Крым «О  независимости Крыма» [Postanovlenie Gosudarstvennogo Soveta Respubliki Krym ‘O nezavisimosti Kryma’ [Decree of the Supreme Council of the Republic of Crimea ‘On the Independence of Crimea’]], at (accessed Mar. 13, 2014).

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In this case, we observe an interesting ontological effect, when state A is not legally recognized by state B (A state is recognized by B state only politically) and the act of incorporating A state into B state occurs without the recognition required for the act of incorporation. A state without legal recognition by any other state exists only for itself (Ding an sich). In real life, we observe a situation where the Republic of Crimea does not exist as a state (as a subject of international law) for Russia, but Russia incorporates it by using the legal framework constructed for already recognized states. 3. Citation of the International Court of Justice Advisory Opinion on the Question of the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo9 in Declaration of Independence of the Autonomous Republic of Crimea and Sevastopol The Declaration of Independence of the Autonomous Republic of Crimea and Sevastopol mentions the ‘confirmation of the status of Kosovo by the United Nations International Court of Justice [hereinafter ICJ] on July 22, 2010, which says that the unilateral declaration of independence by a part of the country does not violate any international norms.’ However, this citation does not consider the context of the Court of Justice Advisory Opinion. In this context, the ICJ specially mentioned that the question posed by the General Assembly does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State . . . The Court accordingly sees no reason to reformulate the scope of the question. Two main questions which interested the ICJ in that case, were: 1) was the declaration promulgated by the Provisional Institutions of Self-Government; 2) whether the declaration of independence is in accordance with the UN Security Council Resolution 1244 (1999) and the measures adopted thereunder. The ICJ considers that general international law contains no applicable prohibition of declarations of independence. In its Opinion of July 9, 2004, the ICJ found ‘the right of peoples to selfdetermination’ to be a right erga omnes.10 It must be mentioned that the ICJ’s Opinion 9

 Advisory Opinion, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 I.C.J. 403, available at (accessed Mar. 13, 2015).

10

 Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, ¶ 88, 2004 I.C.J. 136, available at (accessed Mar. 13, 2015).

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does not cover declarations of independence with illegal external use of force. In 1920, the Committee of Jurists, set up by the League of Nations11 in order to investigate the problem of the Åland Islands came to the conclusion that, ‘public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops.’ Finally, the wording of the ICJ’s Opinion differs from a text in the Declaration of Independence of the Autonomous Republic of Crimea. Such a situation all-in-all is a bright example of the conflict of interpretations.12 4. Conclusion Russia’s accession of Crimea has met with protest form a significant number of international actors. As a result, a greater part of the international community have implemented a non-recognition policy,13 some actors have imposed sanctions against Russia and against certain entities and individuals, which have promoted and benefitted from the separation of Crimea from Ukraine. Finally, approaches that are trying to explain every international situation as sui generis and the existence of different perspectives for the interpretation of similar situations following the widespread usage of sui generis, leads to the decline in value of international law as a whole.

Annex Treaty between the Russian Federation and the Republic of Crimea on the Acceptance of the Republic of Crimea into the Russian Federation and on Creation of New Federative Entities within the Russian Federation14 The Russian Federation and the Republic of Crimea, based upon the historical sympathy of their nations and taking into account the international relations established by them, 11

 League of Nations O.J. Spec. Supp. 3, at 9 (1920).

12

 Paul Ricœur, The Conflict of Interpretations: Essays in Hermeneutics (Don Ihde, ed., & Willis Domingo et al., trans.) (Northwestern University Press 1974).

13

 Enrico Milano, The Non-Recognition of Russia’s Annexation of Crimea: Three Different Legal Approaches and One Unanswered Question, 1 Questions of International Law 35 (2014), available at (accessed Mar. 13, 2015).

14

 The Treaty is not officially translated to the English language. Nevertheless, its text can be found on the site of state system of law information (http://pravo.gov.ru:8080/page.aspx?92227), which is the official source for the publication of legal acts and in the President’s site (http://www.kremlin. ru/news/20605).

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recognizing and confirming the principle of equal rights and self-determination of peoples contained in the United Nations Charter and in accordance with which all peoples have the right to freely determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right,15 resolvings to ensure full respect for human rights, including the right to life, freedom of thought, conscience and religion, of all people within their territory, without distinction, and in accordance with generally accepted principles and norms of international law and recognizing the close connection to other generally accepted principles of international law, which are recognized by the United Nations Charter, Helsinki Declaration of the Conference on Security and Co-operation in Europe, with the principle of respect for human rights and freedoms, expressing the common will of their nations, which are indissolubly linked by the common historical fate, to live jointly in a democratic, federative, legal state, aspiring to ensure the well-being and prosperity of their nations, relying on the free and willful declaration of will which was implemented by the nations of Crimea in the referendum that was realized in the Autonomous Republic of Crimea and in the city of Sevastopol on March 16, 2014, over the course of which the people of Crimea decided to reunify with Russia as a Russian federative entity, taking into consideration the proposal of the Republic of Crimea and of the city with special status Sevastopol on the acceptance of the Republic of Crimea, including the city with special status Sevastopol, into the Russian Federation, negotiated the current Treaty on the following. Article 1 1. The Republic of Crimea is considered to have been accepted into the Russian Federation upon the signing of the Treaty.16 2. The acceptance of the Republic of Crimea into the Russian Federation is realized in accordance with Constitution of the Russian Federation, with the present agreement, with the Federal Constitutional Law ‘On the Procedure of the Acceptance into the Russian Federation and on the Creation of the New Federative Entity in Its 15

 The norm is copied word-for-word from the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/5217 (1970), at (accessed Mar. 13, 2015).

16

 In accordance with Art. 80 of the Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/Conf.39/27, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969), at (accessed Mar. 13, 2015), treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication. The Accession Treaty was not registered at the UN Secretariat.

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Structure’ and with federal constitutional law on the acceptance of Crimea into the Russian Federation.17 Article 2 The Republic of Crimea and the city with federal status Sevastopol18 are formed as new federative entities from the date of acceptance of the Republic of Crimea into the Russian Federation. Article 3 1. The Russian Federation guarantees all peoples inhabiting the Republic of Crimea and the city with federal status Sevastopol the preservation of their native language and the creation of conditions for learning and developing it. 2. Russian, Ukrainian and Crimean Tatar will be the official languages in the Republic of Crimea. Article 4 1. The boundary lines of the territory of the Republic of Crimea and the city with federal status Sevastopol are defined by the borders of the Republic of Crimea and the city with federal territories existing on the day of the acceptance of the Republic of Crimea into the Russian Federation and creation of new federative entities in its structure. 2. The land border of the Republic of Crimea adjacent to the territory of Ukraine shall be deemed to be the border of the Russian Federation. 3. The delimitation of sea space in the Black Sea and in the Sea of Azov will be based on the Russian Federation’s international agreements and on the norms and principles of international law. Article 5 As of the day of the admission of the Republic of Crimea into Russia and the formation of new federative entities within the Russian Federation, Ukrainian citizens 17

 Federal Constitutional Law No. 6 of December 17, 2001, ‘On the Procedure of the Acceptance into the Russian Federation and on the Creation of the New Federative Entity in Its Structure’ [Федеральный конституционный закон от 17 декабря 2001 г. № 6-ФКЗ «О порядке принятия в Российскую Федерацию и образования в ее составе нового субъекта Российской Федерации» [Federal’nyi konstitutsionnyi zakon ot 17 dekabrya 2001 g. No. 6-FKZ ‘O poryadke prinyatiya v Rossiiskuyu Federatsiyu i obrazovaniya v ee sostave novogo sub’ekta Rossiiskoi Federatsii’]] is a legal framework for the acceptance of new federative entities into Russia. Although this law has existed for a long time, it was never used. Another federal constitutional law mentioned in the paragraph is ‘On the Acceptance of Crimea into the Russian Federation,’ it had not been created at the time when the Treaty was signed. There is a difference between ordinary federal laws and federal constitutional laws, occurring with the supremacy and overriding legal force of federal constitutional laws.

18

 There were only two cities with federal status in Russia: Moscow and St. Petersburg. The main difference between federal status cities and ordinary cities is a type of local government organization. In addition, there was an old idea that if federal cities have special status among other Russian cities; each of them must contain some central structures of federative authorities. The idea was realized in 2008, when the Russian Constitutional Court was moved from Moscow to St. Petersburg.

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and stateless citizens permanently residing in the Republic of Crimea and in the city with federal status Sevastopol are recognized as Russian citizens with the exception of those people who within one month of this day express their wish to retain their current citizenship for themselves and their underage children or to remain persons without citizenship. Article 6 From the day of acceptance of the Republic of Crimea into the Russian Federation and creation of new federative entities in its structure until January 1, 2015, a transition period is in force to settle all issues relating to the integration of new federative entities into the Russian Federation’s economic, financial, credit, and legal systems, the public administration system of the Russian Federation, as well as issues relating to conscription and military service on the territories of the Republic of Crimea and the city with federal status Sevastopol. Article 7 Russian citizens conscripted in the Republic of Crimea and city with federal status Sevastopol will serve on the territory of the Republic of Crimea and the city with federal status Sevastopol until 2016. Article 8 Elections to the government bodies of the Republic of Crimea and the government bodies of Sevastopol as a city holding federal status shall be held on the second Sunday of September 2015. Before the elections, the Crimean State Council and Sevastopol’s Legislative Assembly will perform the functions of these government bodies. Article 9 1. Legislative and other regulatory legal acts of the Russian Federation are in force on the territories of the Republic of Crimea and of the city with federal status Sevastopol, from the day of acceptance of the Republic of Crimea into the Russian Federation and creation of new federative entities in its structure, if not otherwise stipulated in the legislation of the Russian Federation. 2. Regulatory legal acts of the Autonomous Republic of Crimea and of the city Sevastopol as well as Republic of Crimea and of the city with special status Sevastopol shall be in force in the Republic of Crimea and of the city with federal status Sevastopol, respectively, until the end of the transition period or until acceptance of a special regulatory legal act of the Russian Federation and / or a regulatory legal act of the Republic of Crimea, regulatory legal act of the Russian Federation and / or regulatory legal act of the city with federal status Sevastopol. 3. Regulatory legal acts of the Autonomous Republic of Crimea and of the city Sevastopol as well as regulatory legal acts of the Republic of Crimea and of the city

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with federal status Sevastopol, which are in contravention of the Constitution of the Russian Federation, have no effect. Article 10 The agreement herein applies provisionally from the date of signature and will be affective from the date of ratification.19 March 18, 2014 References Advisory Opinion, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 I.C.J. 403, available at (accessed Mar. 13, 2015). Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, ¶ 88, 2004 I.C.J. 136, available at (accessed Mar. 13, 2015). Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/5217 (1970), at (accessed Mar. 13, 2015). Kelsen, Hans. Recognition in International Law: Theoretical Observations, 35(4) American Journal of International Law 605 (1941). Milano, Enrico. The Non-Recognition of Russia’s Annexation of Crimea: Three Different Legal Approaches and One Unanswered Question, 1 Questions of International Law 35 (2014), available at (accessed Mar. 13, 2015). Ricœur, Paul. The Conflict of Interpretations: Essays in Hermeneutics (Don Ihde, ed., & Willis Domingo et al., trans.) (Northwestern University Press 1974). 19

 In compliance with Art. 8(1) of the Federal Constitutional Law ‘On the Procedure of the Acceptance into the Russian Federation and on the Creation of the New Federative Entity in Its Structure,’ the international treaty on acceptance, which has not yet become effective in law, shall be ratified only after a Constitutional Court review on the correspondence of the treaty with Russian Federal Constitution. Such review was conducted by the Constitutional Court on March 19, 2014, in the Judgment No. 6-P, (accessed Mar. 13, 2015) (resume in English: (accessed Mar. 13, 2015)). The Constitutional Court underlined with references to Russian law and the Courts precedents, that it cannot discuss questions of political practicability of international treaties. The Court’s decision is largely based on the problem of enforcing an international treaty before it comes into legal effect. That is rather interesting in terms of the UN International Law Commission’s work on the themes ‘Provisional Application of Treaties’ and ‘Treaties over Time / Subsequent Agreements and Subsequent Practice in Relation to Interpretation of Treaties.’ Other provisions of the Judgment are tied to each treaty’s article interrelation with provisions of the Russian Constitution. As a final result, the Court judged that the Treaty is constitutional.

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Self-Determination and Secession in International Law 297 (Christian Walter et al., eds.) (Oxford University Press 2014). Statement by the Russian Ministry of Foreign Affairs Regarding the Adoption of the Declaration of Independence of the Autonomous Republic of Crimea and Sevastopol, (accessed Mar. 13, 2015). Tsang, Jo-Ann. Moral Rationalization and the Integration of Situational Factors and Psychological Processes in Immoral Behavior, 6(1) Review of General Psychology (2002). doi:10.1037//1089-2680.6.1.25 Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/Conf.39/27, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969), at (accessed Mar. 13, 2015). Декларация о  независимости Автономной Республики Крым и  города Севастополя [Deklaratsia o nezavisimosti Avtonomnoi Respubliki Krym i goroda Sevastopolya [Declaration of Independence of the Republic of Crimea and City Sevastopol]], at (accessed Mar. 13, 2015). Кожевников Ф.И. Советское государство и международное право [Kozhevnikov F.I. Sovetskoe gosudarstvo i mezhdunarodnoe pravo [Fyodor I. Kozhevnikov, Soviet State and International Law]] 181 (Poligrafkniga 1948). Постановление Государственного Совета Республики Крым «О независимости Крыма» [Postanovlenie Gosudarstvennogo Soveta Respubliki Krym ‘O nezavisimosti Kryma’ [Decree of the State Council of the Republic of Crimea ‘On the Independence of Crimea’]], at (accessed Mar. 13, 2014). Information about the author Anatoly Pronin (Voronezh, Russia) – Lecturer of the Department of International and European Law, Voronezh State University (10a Lenin sq., Voronezh, 394030, Russia; e-mail: [email protected]).

International Criminal Responsibility after Katanga: Old Challenges, New Solutions

Olena Kucher, Institute of International Relations, Taras Shevchenko National University of Kyiv (Kyiv, Ukraine),

Aleksey Petrenko, University of Göttingen (Göttingen, Germany)

On March 7, 2014, the International Criminal Court delivered its most recent judgment convicting Mr. Katanga as an accessory of crime against humanity in the form of murder and four counts of war crimes within the meaning of Art. 25(3)(d) of the Rome Statute. This decision along with its previous final decisions in the Lubanga and Ngudjolo cases has raised similar concerns about individual criminal responsibility regarding, inter alia, application of control over a crime doctrine as evidenced from the dissenting / separate opinions to them. This doctrine has already firmly settled within the ICC jurisprudence and yet some judges doubt if its application is justified, especially given the peculiarities of national origin irrelevant in the realm of the Rome Statute. The other raised concern is a potential application of the legality principle, since both Ngudjolo and Katanga judgments have investigated the same situations and come to the completely different results. While the Rome Statute contains the most complete provision determining the modes of individual responsibility, Art. 25 thus appears to be far from being out of debates. To dispel some of them, this article analyzes practical application of Art. 25(3)(a) and (d) by the ICC and different approaches in this regard as well as general grounds for raising question on the necessity for individual criminal responsibility. Keywords: ICC; individual criminal responsibility; Rome Statute; control over a crime; blameworthiness. DOI: 10.17589/2309-8678-2015-3-1-143-168

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1. Introduction 2012 has become a new landmark in international criminal law [hereinafter ICL].1 The International Criminal Court [hereinafter ICC, Court] delivered its first judgment convicting Mr. Lubanga of commission of war crimes under the Rome Statute.2 Unsurprisingly, the basic concept of individual criminal responsibility was the main contentious issue raised before the Court, as follows from the Separate opinion of Judge Fulford.3 Further ICC practice proves the ambiguity of this issue in its later judgments defining the mode of individual criminal responsibility for Mr. Katanga and Mr. Ngudjolo in 2013 and 2014 respectively. Both of them also contain dissenting opinions addressing the similar problems. The issues raised in respect of international criminal responsibility have their roots in the history of the ICL. Being an actively developing separate branch of international law, the modern ICL has been evolving only for 70 years since the Nuremberg and Tokyo International Military Tribunals. Despite the promising begining, the real dawn in ICL occurred in 1990s with establishment of the international criminal tribunals ad hoc and later final setting up of the permanent court in 2002. Only then was the ICL finally crystallized as a branch of the contemporary international law. Nevertheless, doubts remain whether ICL is a branch of law without any flaws. State practice as well as jurisprudence of international judicial bodies are still filling up the gaps and develop the early established concepts including general principles. The following article elaborates on the genesis and further development of the principle of individual criminal responsibility. The first part provides with an understanding of the principle’s roots and explains its status and content, while the second one provides an analysis of the ICC practice in the context of application of Art. 25 titled ‘Individual Criminal Responsibility.’ This article is pertinent, since today the Rome Statute’s provisions contain not only merely the most exhaustive list of forms of individual criminal responsibility for commission of international crimes but also summarize the already existing approaches to understanding of this principle.

1

 Thomas R. Liefänder, The Lubanga Judgment of the ICC: More Than Just the First Step?, 1(1) Cambridge J. Int’l & Comp. L. 191 (2012). doi:10.7574/cjicl.01.01.38

2

 Situation in the Democratic Republic of the Congo (The Prosecutor v. Thomas Lubanga Dyilo) ¶ 1358, No. ICC-01/04-01/06 (Intl. Crim. Ct., Tr. Chamber I, Mar. 14, 2012), available at (accessed Mar. 12, 2015) [hereinafter Lubanga, Tr. Chamber I].

3

 Situation in the Democratic Republic of the Congo (The Prosecutor v. Thomas Lubanga Dyilo) ¶ 1, 3, No. ICC-01/04-01/06 (Intl. Crim. Ct., Tr. Chamber I, Mar. 14, 2012) (separate opinion of Judge Adrian Fulford) [hereinafter Fulford].

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2. Individual Criminal Responsibility as a General Principle of International Criminal Law Contemporary international law as a stem for the ICL originated as a system of prohibitions and authorizations specifically designed for and dedicated to players on the international stage. Previously only sovereign States were fully recognized as players.4 State sovereignty was and still remains one of the cornerstones of international law, which was defined by the Permanent Court of International Justice in famous Lotus as a freedom of states to act in any manner that is not directly prohibited.5 The classic concept of international law did not recognize other actors as possessors of rights and obligations.6 In particular, at times international organizations were not treated as separate subjects of international law until in 1949 the ICJ finally solved the disputes in this regard in Reparation for injuries.7 Parallel to these changes, an active development of international relations as well as numerous wars in the 20 century, leading to disastrous consequences, have raised one of the most important questions in the history of mankind: who is guilty and responsible for the commission of war atrocities and crimes against humanity? The international community has come forth with different possible answers: states, entities, corporates and individuals. As it is evident, the classic concept of international law suggests only one answer to this question: state solely may bear the responsibility. However, this approach could not solve all existing disputes and provide effective means of preventing similar situations in the future. The following reasons give a basis for further research. Above all, to convict the society as a whole or state for committing separate, now criminally punishable actions under international law, ‘seem[s] to be too abstract and would have proved to be unproductive.’8 In other words, if everybody is guilty, then nobody is, especially considering this aspect as applicable not to a small collective, but to the whole state with multimillion population. Taking this into account, the issue regarding identification of persons responsible for war crimes and crimes 4

 Lassa Oppenheim, 1 International Law: A Treatise 107 (2nd ed., Longmanns, Green & Co. 1912), available at (accessed Mar. 12, 2015); Kay Hailbronner & Martin Kau, Der Staat und der Einzelne als Völkerrechtsubjekte, in Völkerrecht 156 (Wolfgang G. Vitzthum. ed.) (5th ed., De Gruyter 2010).

5

 Case of the S.S. ‘Lotus’ (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 9, at 18–19 (Sep. 7), available at (accessed Mar. 12, 2015).

6

 Malcolm N. Shaw, International Law 197 (6th ed., Cambridge University Press 2008).

7

 Advisory Opinion, Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, at 179 (Apr. 11).

8

 Vincenzo Militello, The Personal Nature of Criminal Responsibility and ICC Statute, 5(4) J. Int’l Crim. Justice 944 (2007). doi:10.1093/jicj/mqm039

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against humanity cannot be avoided. The mere statement of fact that the crime has been committed without reference to people who have actually done it automatically shifts the responsibility from a person to the whole collective.9 By individualization of responsibility for the most serious crimes in the field of ICL one can reach more than enforcement of international law (that, as such, is not a goal itself). Individualization of responsibility can significantly facilitate the process of reconciliation in the society.10 Holding some persons responsible ‘opens possibility to [re-thinking] of the conflict itself’ which has led to such consequences.11 Moreover, as a matter of fact the state / society responsibility in such cases does not correspond to the reality to a full extent. Here it is important to note that the issue at hand does not concern the formal legal attribution of war actions, which according to the International Law Commission’s Draft Articles on States Responsibility might be considered as state actions.12 Rather, the main issue here is to what the Nuremberg International Military Tribunal drew attention: ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’13 International community has thus strongly inclined towards individualization of responsibility since then, as is further clearly evidenced in the Prosecutor’s opening statement in the Milošević case focusing on the same issue.14 The same reasons likewise laid the foundation for denial of the French proposal to expand the Rome Statute’s provisions on individual criminal responsibility for ‘juridical’ persons.15 Apart from abovementioned considerations, inclusion of corporate liability would generate superfluous complications. For instance, it would lead to the necessity of further negotiations on the exact wording of the clause 9

 Dennis Nitsche, Der Internationale Strafgerichtshof ICC und der Frieden: Eine vergleichende Analyse der Befriedungsfunktion internationaler Straftribunale 169 (Nomos 2007).

10

 Nitsche, supra n. 9, at 170.

11

 Id. at 170.

12

 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International rd Law Commission, U.N. GAOR, 53 Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), reprinted in 2 Y.B. Int’l L. Comm’n 20 (2001), U.N. Doc. A/CN.4/SER.A/2001/Add.1, at (accessed Mar. 12, 2015).

13

 International Military Tribunal (Nuremberg) Judgement and Sentences (Oct. 1, 1946), 41 Am. J. Int’l L. 172, 220–221 (1947).

14

 The Prosecutor v. Slobodan Milošević, Prosecution Opening Statement ¶ 4, No. IT-02-54-T (Intl. Crim. Trib. for the Former Yugo., Feb. 12, 2002).

15

 U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome, 15 June – 17 July 1998), 2 Official Records: Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole at 133, U.N. Doc. A/CONF/183/13 (Vol. II), U.N. Sales No. E.02.I.5 (Art. 23 ‘Individual Criminal Responsibility,’ proposal submitted by France (A/CONF.183/ C.1/L.3)), available at (accessed Mar. 12, 2015).

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especially given the fact that such a provision does not exist in the most legal systems, as well as to increase the amount of required evidence.16 Despite all these considerations, there is still a strong contrary approach. Under the system criminality concept only collective entities like state or organized groups are in fact able to commit or encourage the commission of international crimes.17 Opposed to what the Nuremberg Tribunal underlined, the International Military Tribunal for the Far East’s Judge B. Röling has rightly pointed out that war crimes’ commission had always served the purposes of system and had been caused by the system.18 Yet, this concept is more suitable for general understanding of causes rather than as a practical guideline for criminal prosecution of guilty persons. Thus, as a logical corollary of these thoughts international society has swiftly come to understand the necessity to invoke individual criminal responsibility for the most serious international crimes, which has become one of the main ICL principles. This basic idea has been reflected in plenty of sources: Statutes of Nuremberg and Tokyo International Military Tribunals;19 recent Statutes of the International Criminal Tribunal for the Former Yugoslavia20 and International Criminal Tribunal for Rwanda,21 the Rome Statute.22 The main principles recognized by the Statute of the Nuremberg tribunal were also upheld by the UN General Assembly in 1946.23 16

 Ole K. Fauchald & Jo Stigen, Corporate Responsibility before International Institutions, 40 Geo. Wash. Int’l L. Rev. 1026, 1038–39 (2009), available at (accessed Mar. 12, 2015).

17

 System Criminality in International Law 15 (Harmen van der Wilt & André Nollkaemper, eds.) (Cambridge University Press 2009).

18

 Bert V.A. Röling, The Significance of the Laws of War, in Current Problems of International Law: Essays on UN Law and on the Law of Armed Conflict 46 (Antonio Cassese, ed.) (Giuffrè 1975).

19

 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Charter of the International Military Tribunal, Aug. 8, 1945, Art. 6, 82 U.N.T.S. 279, 284, at (accessed Mar. 12, 2015); Charter of the International Military Tribunal for the Far East, Apr. 26, 1946, Art. 5, T.I.A.S. No. 1589, at (accesed Mar. 12, 2015).

20

 Statute of the International Tribunal for the Former Yugoslavia, Art. 7 (adopted by U.N. Security Council Res. 808 (1993), U.N. Doc. S/RES/808 (February 22, 1993)), at (accessed Mar. 12, 2015).

21

 Statute of the International Tribunal for Rwanda, Art. 6, U.N. Security Council Res. 955 (1994), U.N.Doc. S/RES/955 (November 8, 1994), (accessed Mar. 12, 2015).

22

 Rome Statute of the International Criminal Court, Jul. 17, 1998, Art. 25(3), 2187 U.N.T.S. 3, at (accessed Mar. 12, 2015).

23

 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95 (I), U.N. GAOR, 1st Sess., pt. 2, at 1144, U.N. Doc. A/236 (1946), at (accessed Mar. 12, 2015).

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Consequently, international law stepped away from the initial understanding of liability for its violations through individual criminal responsibility. As regards the Rome Statute itself, the enumeration of individual criminal responsibility therein was not an innovative provision.24 Yet, Art. 25 of the Rome Statute as such, being a list of individual criminal responsibility principles as well as its application by the ICC represents to date the most important and topical source for analysis in order to deduce not only already existent approaches to determination of individual criminal responsibility, but also for understanding the developing tendencies in this regard. The relevance of Art. 25 is predetermined by both the permanent character of the ICC activity, that celebrated the tenth anniversary in 2012, and the fact that the activity of international criminal tribunals ad hoc comes to an end soon. 3. Individual Criminal Responsibility on Art. 25 of the Rome Statute Article 25(3) of the Rome Statute addresses the issues concerning individual criminal responsibility. The article lists six forms of individual criminal responsibility.25 In some authors’ opinions, this article represents the most exhaustive list of such forms to date.26 Despite this, some basic issues still seem to be ambiguous. Inter alia, no consensus exists, whether the structure of Art. 25 indicates a hierarchy between 24

 Militello, supra n. 8, at 944.

25

 Rome Statute, supra n. 22, Art. 25(3), the text follows as: ‘3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; b) Orders, solicits or induces the commission of such a crime which in fact occures or is attempted; c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or ii) Be made in the knowledge of the intention of the group to commit the crime; e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; f ) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandonds the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.’

26

 Attila Bogdan, Individual Criminal Responsibility in the Execution of a ‘Joint Criminal Enterprise’ in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia, 6(1) Int’l Crim. L. Rev. 67 (2006). doi:10.1163/157181206777066727

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different forms of individual criminal responsibility and whether they are exclusive.27 The amplified practice of international criminal tribunals ad hoc opines that ‘the various modes of liability available under their statutes are not mutually exclusive,’28 while the ICC took a different approach, as might implicitly follow from its first judgment.29 As to the other details unclear from the provision’s wording itself, the ICC practice specifies and elaborates on additional objective and subjective elements of each abovementioned form to apply provisions of the Rome Statute on a case-by-case basis. To date the ICC Chambers considered a few grounds for individual criminal responsibility reflected in Art. 25(3)(a) and (d), while other sections remained untouched. As to the Art. 25(3)(a), and namely bringing to responsibility for commission of a crime through another person, the ICC has considered this form of liability in the decisions on confirmation of charges in five cases: Lubanga, Katanga and Ngudjolo, Ruto, Bemba and Muthaura. In respect of the Art. 25(3)(d) the Pre-Trial Chamber I has analyzed this form of individual criminal responsibility when it decided to decline confirmation of the charges in Mbarushimana as well as in the final judgment in the most recent Katanga case. These conclusions were also upheld by Pre-Trial Chamber II in the decision on confirmation of charges in Ruto. Besides, the issue of basing individual criminal responsibility on the grounds of other subsections of Art. 25 has been raised in the arrest warrants issued in Kony, Harun (Art. 25(3)(b)) and Barasa (Art. 25(3)(f )). Given the absence of decisions in these cases on confirmation of charges or on its declining the detailed additional criteria of abovementioned forms of individual criminal responsibility have not been formulated yet. Hence, the ICC has sufficiently considered only two forms of a person with responsibility. They will be analyzed below separately. 3.1. Article 25(3)(a) of the Rome Statute in the Practice of the ICC Pursuant to Art. 25(3)(a) a person is liable if he or she commits a crime 1) individually; 2) ‘jointly with another’ person; 3) ‘through another person, regardless of whether that other person is criminally responsible.’ The Chambers paid the most attention to the third described provision, while the joint responsibility was analyzed only in part and individual commission of crime was not scrutinized whatsoever. 27

 Fulford, supra n. 3, ¶¶ 7–8.

28

  I d. fn. 13; The Prosecutor v. Vlastimir Đorđević, Judgment ¶¶ 2193–94, No. IT-05-87-1-T (Intl. Crim. Trib. for the Former Yugo., Tr. Chamber II, Feb. 23, 2011), available at (accessed Mar. 12, 2015); The Prosecutor v. Ferdinand Nahimana et al., Judgment ¶ 483, No. ICTR-99-52-A (Intl. Crim. Trib. for the Former Yugo., App. Chamber, Nov. 28, 2007), available at (accessed Mar. 12, 2015).

29

 Lubanga, Tr. Chamber I, supra n. 2, ¶ 999.

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3.1.1. Commission of a Crime Jointly with Another Person The Pre-Trial Chamber II has partly considered the issue of charging a person with individual criminal responsibility jointly with another person in the decision on confirmation of charges in the Ruto case. Although the Chamber did not analyze the facts of the case in this regard due to the Prosecution’s ‘inconsistent labeling of criminal responsibility of the Suspects’30 within its submission to charge them with responsibility simultaneously ‘jointly’ and ‘through’ another person omitting connective ‘or’31 referred to in Art. 25(3)(a),32 the ICC confirmed the decision of Pre-Trial Chamber I in Bemba33 regarding the ‘notion of control over the crime.’ 34 Therefore it concluded that this form of responsibility requires as a necessary element a suspect’s control over a crime.35 The control over a crime doctrine, originating from the German national system,36 is one of the possible legal ways to determine co-perpetrators of a crime. To put it in the words of Pre-Trial Chamber I in Lubanga ‘a person can become a co-perpetrator of a crime only if he or she has “joint control” over the crime as a result of the “essential contribution” ascribed to him or her.’37 Contrary to other theories, this doctrine still requires ‘essential contribution’ for co-perpetration and yet allows charging with criminal responsibility as co-perpetrators also those who were not present at the field of crime and especially so called masterminds of a crime.38 Despite the Court’s general inclination towards this concept, also reflected in the recent judgments in the Lubanga,39 Ngudjolo40 and Katanga41 cases, the ICC is not 30

 Situation in the Republic of Kenya (The Prosecutor v. William Samoei Ruto et al.) ¶ 283, No. ICC-01/0901/11 (Intl. Crim. Ct., Pre-Tr. Chamber II, Jan. 23, 2012), available at (accessed Mar. 12, 2015).

31

 Id. ¶ 287.

32

 Id. ¶ 284.

33

 Id. ¶ 291.

34

 Id.

35

 Id.

36

 Fulford, supra n. 3, ¶ 10.

37

 Lubanga, Tr. Chamber I, supra n. 2, ¶ 322.

38

 Situation in the Democratic Republic of the Congo (The Prosecutor v. Germain Katanga) ¶ 281, No. ICC01/04-01/07 (Intl. Crim. Ct., Tr. Chamber II, Mar. 7, 2014) (minority opinion of Judge Christine Van den Wyngaert), available at (accessed Mar. 12, 2015) [hereinafter Wyngaert, Katanga].

39

 Lubanga, Tr. Chamber I, supra n. 2, ¶ 920.

40

 Situation in the Democratic Republic of the Congo (The Prosecutor v. Mathieu Ngudjolo) ¶¶ 473, 484– 486, No. ICC-01/04-02/12 (Intl. Crim. Ct., Tr. Chamber II, Dec. 18, 2012), available at (accessed Mar. 12, 2015).

41

 Summary of Trial Chamber II’s Judgment of 7 March 2014, Pursuant to Article 74 of the Statute in the Case of The Prosecutor v. Germain Katanga, (accessed Mar. 12, 2015) [hereinafter Katanga, Summary].

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unanimous in this respect. For instance, Judge Fulford in his Separate opinion to Lubanga has strongly criticized application of the control over the crime doctrine.42 As he points out, being a national German theory ‘of “functional control over the act” („funktionelle Tatherrschaft“)’43 this one may consequently include national peculiarities which are necessary for taking into account for the doctrine to be applied.44 Apart from a lack of such peculiarities within the realm of the Rome Statute, only a few ad hoc tribunals share the ICC’s view, for example Stakić45 and the Judge Schomburg’s separate opinion in Gacumbitsi.46 Moreover, in its practice of applying ‘general principles of law derived from national legal systems’ the ICC should pay attention to their compatibility with Rome Statute general framework and applicability of such states’ policy by the ICC, which is not completely followed with respect to the ‘control over the crime’ doctrine, in Judge Fulford’s opinion.47 In this particular instance, the problem lies in the disputable necessity of the theory’s application. Unlike the German national law which distinguishes sentencing between principals and accessories,48 the Rome Statute does not explicitly provide comparable different treatment of those accused under different subsections of Art. 25. As a consequence this distinction raises reasonable doubts about its necessity that only partially might be dispelled by implied motives of reconciliation and labeling ‘masterminds’ of crime.49 This has been one of the main concerns of Judge Van den Wyngaert who in two separate opinions (Ngudjolo’s confirmation of charges and Katanga’s judgment) raised an issue of blameworthiness, supporting Judge Fulford.50 According to them, the Rome Statute does not explicitly contain differentiation in sentencing depending on what section person is accused. Nevertheless, the next considerations allow 42

 Fulford, supra n. 3, ¶¶ 6, 10–11.

43

 Kai Ambos, Article 25. Individual Criminal Responsibility, in Commentary on the Rome Statute of the International Criminal Court 752 (Otto Triffteter, ed.) (2nd ed., Beck; Hart; Nomos 2008).

44

 Fulford, supra n. 3, ¶ 10.

45

 The Prosecutor v. Milomir Stakić, Judgment ¶ 62, No. IT-97-24-A (Intl. Crim. Trib. for the Former Yugo., App. Chamber, Mar. 22, 2006), available at (accessed Mar. 12, 2015).

46

 The Prosecutor v. Sylvestre Gacumbitsi, Judgment ¶ 17, No. ICTR-2001-64-A (Intl. Crim. Trib. Rwanda, App. Chamber, Jul. 7, 2006) (separate opinion of Judge Schomburg), available at (accessed Mar. 12, 2015).

47

 Fulford, supra n. 3, ¶ 10.

48

 Id. ¶ 11.

49

 Jens D. Ohlin et al., Assessing the Control-Theory, 26(3) Leiden J. Int’l L. 745 (2013). doi:dx.doi. org/10.1017/S0922156513000319

50

 Situation in the Democratic Republic of the Congo (The Prosecutor v. Mathieu Ngudjolo) ¶¶ 22–24, No. ICC-01/04-02/12 (Intl. Crim. Ct., Tr. Chamber II, Dec. 12, 2012) (concurring opinion of Judge Christine Van den Wyngaert); Wyngaert, Katanga, supra n. 38, ¶ 281.

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avoiding this tricky issue with blameworthiness and thus lack necessity of the control over a crime doctrine’s application. First of all, it must be conceded that the Rome Statute does not indeed contain explicit provisions which say that Art. 25(3) includes various range for sentences formally depending on its applicable subsection in the case.51 So, the only basis for difference in sentencing is how a judge comprehends the situation and the role of accused therein. As a matter of fact the perception of the role in crime is not the same for different activities. Contribution of a person deciding to pull a trigger will always be different from that of who merely gave the gun to him. In other words, it appears even in the absence of certain provisions in the Rome Statute in this respect, the situation will still implicitly distinguish the contribution of persons and consequently their danger for international society. Therefore the problem with lack of blameworthiness can be avoided merely by interpretation of the Rome Statute as implicitly containing the different understanding of the role that accused has played on case by case basis. Hence, the control over a crime may be applicable to the proceedings before the ICC even in the absence of provisions in the Rome Statute on differentiation of sentences. Based on the above, the form of responsibility Jointly with another person does cause controversies and, therefore, has room for progress, as specified by Judge Fulford. Indeed, a German theory ‘control over a crime’ predominantly applied by the Court does not seem to be completely and formally pertinent under the Rome Statute due to the worldwide character of the ICC. However, at least two points suggest that the application of the doctrine is not as problematic as it might appear at first sight. First, the dispute over its applicability (at least, for Lubanga) is rather theoretical, since as Judge Fulford admitted itself the outcome of the judgment still should be the same.52 Second, nevertheless the raised problem may be crucial for one of the next cases and, thus, requires to be solved. The proposed understanding of Art. 25 as always having case by case basis might avoid part of this criticism. 3.1.2. Commission of a Crime Through Another Person The third form of conduct leading to individual criminal responsibility under Art. 25(3)(a) through another person has been actively developed by the ICC. By application of this provision of the Rome Statute the respective Pre-Trial Chambers have concluded that this form of responsibility demands proof of objective and subjective elements of a crime commission.53 51

 Ohlin et al., supra n. 49, at 745–746.

52

 Fulford, supra n. 3, ¶¶ 19–21.

53

 Situation in Democratic Republic of the Congo (The Prosecutor v. Thomas Lubanga Dyilo) ¶¶ 343–349, No. ICC-01/04-01/06 (Intl. Crim. Ct., Pre-Tr. Chamber I, Jan. 29, 2007), available at (accessed Mar. 12, 2015) [hereinafter Lubanga, Pre-Tr. Chamber I].

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In this regard it is necessary to consider the ICC’s position concerning the Joint Criminal Enterprise [hereinafter JCE] doctrine, widely used by the International Criminal Tribunal for the Former Yugoslavia jurisprudence, starting from the wellknown Tadić.54 This theory was recognized as inapplicable by the ICC due to the difference in functioning of tribunals ad hoc and the permanent Court. For instance, in the Lubanga case the Pre-Trial Chamber I decided that the Rome Statute not only contains detailed written forms of responsibility for participation in commission of international crimes, but also ‘avoids the broader definitions’ similar to the provisions of the Statute of International Criminal Tribunal for the former Yugoslavia.55 Instead of the JCE doctrine the ICC preferred the control over the crime one.56 From the point of Chamber’s view, the JCE doctrine focuses mainly on the ‘commission of the offence as the distinguishing criterion between principals and accessories’ on the basis of their state of mind in comparison with the level of ‘contribution to the commission of such offence,’ supported by the ICC.57 In comparison with the JCE doctrine, the joint control over the crime one recognizes as principals not only individuals having physically performed objective elements of the crimes’ commission, but also those who decided whether and in which way such crime would be committed.58 The Pre-Trial Chamber I’s decision on confirmation of charges in Lubanga the first time defines the determination of objective elements of charging individual criminal responsibility through another person: existence of 1) common plan59 and 2) ‘essential contribution to commission of a crime for establishment a fact of common control over the crime.’60 Subsequently the ICC clarified the objective elements in Katanga, Mbarushimana, Ruto and Muthaura as follows: 1) existence of agreement or common plan on commission of international crimes between two and more persons;61 2) existence of ‘essential contribution of each of them to commission of such crimes in the coordinated manner, which, in turn, is proved by fulfillment of subjective elements of the respective 54

 The Prosecutor v. Du[ko Tadi] a/k/a/ ‘Dule,’ Opinion and Judgment ¶¶ 191–192, No. IT-94-1-T (Intl. Crim. Trib. for the Former Yugo., Tr. Chamber, May 7, 1997), available at (accessed Mar. 12, 2015).

55

 Lubanga, Pre-Tr. Chamber I, supra n. 53, ¶¶ 323, 338.

56

 Id. ¶¶ 330–335.

57

 Id. ¶ 329.

58

  Id. ¶ 330.

59

 Id. ¶ 343.

60

 Id. ¶ 346.

61

 Id. ¶¶ 343–345; Situation in the Democratic Republic of the Congo (Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui) ¶¶ 522–523, No. ICC-01/04-01/07-717 (Intl. Crim. Ct., Pre-Tr. Chamber I, Sep. 30, 2008), available at (accessed Mar. 12, 2015) [hereinafter Katanga & Ngudjolo, Pre-Tr. Chamber I].

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crimes;’62 3) ‘control over an organization;’63 4) existence of hierarchy and separation of authorities inside the organization;64 and 5) providing the commission of crimes by inferiors on the leader’s order.65 Three last objective elements elaborated by the Pre-Trial Chamber(s) must be proven by automatic execution of orders given by the suspect, as it was described in the decision on confirmation of charges in the Ruto case.66 Proving an existence of ‘agreement of common plan,’ the ICC follows the next approach: execution of such a plan which has a risk of international crime commission should be performed together with the criminal purpose exclusively prescribing commission of a crime. Co-perpetrators should be aware of the purpose combined with this risk and agree on the execution of common plan67 by acting in cooperation.68 Article 25(3)(a) is not applicable, if participation of a single person is not coordinated with other co-perpetrators in the commission of crimes.69 Common plan or agreement does not necessarily need to be explicit. Their existence is implied in the framework of coordinated joint actions of indirect co-perpetrators inferred from the concerted actions of the indirect co-perpetrators.70 The element of ‘essential contribution to the commission of a crime’ is fulfilled, when persons act under the common plan in accordance with their tasks which are crucial for execution of this plan.71 Failure to perform these tasks can put under the threat the commission of a crime by all co-perpetrators.72 Essentiality of a contribution can include a special trigger mechanism leading to the automatic execution of orders directed to the commission of international crimes.73 Another objective element, control over an organization is generally interpreted as control of one person over another due to existence of hierarchical structure and its functioning. Accordingly, inferiors would execute the leaders’ orders leading to the criminal result. A leader’s order implies its automatic execution by inferiors because of absolute control of leader over actions of inferior.74 62

 Ruto et al., supra n. 30, ¶ 292.

63

 Katanga & Ngudjolo, Pre-Tr. Chamber I, supra n. 61, ¶¶ 500–510.

64

 Id. ¶¶ 511–514.

65

 Id. ¶¶ 515–518.

66

 Ruto et al., supra n. 30, ¶ 313.

67

 Lubanga, Pre-Tr. Chamber I, supra n. 53, ¶ 344.

68

 Id. ¶ 345.

69

  Id. ¶ 343.

70

 Ruto et al., supra n. 30, ¶ 301.

71

 Lubanga, Pre-Tr. Chamber I, supra n. 53, ¶ 347.

72

 Id.

73

 Ruto et al., supra n. 30, ¶ 306.

74

 Katanga & Ngudjolo, Pre-Tr. Chamber I, supra n. 61, ¶ 515.

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With a purpose to establish subjective elements, being necessary for charging individual criminal responsibility, primarily applied Art. 30 of Rome Statute states that a person should act ‘with intent and knowledge.’75 However, the Pre-Trial Chamber I in its decision on confirmation of charges in Lubanga noted that in this context subjective element means: 1) satisfaction of general subjective elements of crimes under Art. 30 of the Rome Statute; 2) joint awareness that results in implementation of the common plan shall constitute fulfillment of the material elements of the crimes; and 3) awareness of circumstances enabling the person to exercise control over the commission of the crime through another person.76 These criteria found their confirmation in decision on confirmation of charges in the Ruto case.77 The first element was construed as ‘intent’ in the decision on confirmation of charges in Bemba.78 There for the first time in the ICC practice it emphasized the importance of subjective elements when it comes to the commission of crimes through another person.79 The second element purports the co-penetrators’ awareness that implementation of common plan will lead to the commission of crime satisfying all objective elements necessary for its establishment. However, despite the awareness co-perpetrators continued performing actions leading to the commission of such a crime.80 The third element was interpreted by the ICC as awareness of the essential role of the person in the commission of the crime. In this regard level of role ‘essentiality’ means that failure of this person to perform his task puts under risk the commission of the whole collective crime.81 In sum, Art. 25(3)(a) has successfully gone through its first scrutiny by the ICC. Having been created in Lubanga and developed in Catanga and Mbarushimana, additional objective and subjective criteria were fully confirmed in recent Ruto and Muthaura. Their practical application resulted in Thomas Lubanga Dyilo’s sentencing to 14 years of imprisonment. Besides, as a striking tendency one may indicate the Court’s refusal to apply the widely used by the ad hoc tribunals JCE doctrine. Instead, the ICC prefers the control over a crime which application is rather justified. Although there are not so far deviations, the ICC’s inclination to this concept has to be further confirmed in the future. 75

 Rome Statute, supra n. 22, Art. 30(2), (3).

76

 Lubanga, Pre-Tr. Chamber I, supra n. 53, ¶¶ 349–367.

77

 Ruto et al., supra n. 30, ¶ 333.

78

 Situation in the Central African Republic (The Prosecutor v. Jean-Pierre Bemba Gombo) ¶ 369, No. ICC01/05-01/08 (Intl. Crim. Ct., Pre-Tr. Chamber II, Jun. 15, 2009), available at (accessed Mar. 12, 2015).

79

 Id.

80

 Id. ¶ 370; Lubanga, Pre-Tr. Chamber I, supra n. 53, ¶ 352.

81

 Lubanga, Pre-Tr. Chamber I, supra n. 53, ¶ 347.

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3.2. The Practice of Interpretation and Application of Art. 25(3)(d) of the Rome Statute Article 25(3)(d) deals with contributions ‘in any other way.’ It was included with the purpose to the person with individual criminal responsibility in situations not falling under Art. 25(3)(a)–(c). Thus, it may be marked as the most restricted expansion to contribution to international crimes’ commission.82 Turning back to the drafting history, Art. 25(3)(d) represents a compromise with early similar provisions being controversial since the Nuremberg trial.83 For instance, so-called ‘conspiracy provisions’ were already reflected in the Draft Code of Crimes against the Peace and Security of Mankind (1991) as participation of an individual in ‘common plan for the commission of a crime against the peace and security of mankind.’84 The later edition of the Draft Code (1996) includes an individual’s ‘direct participation in planning or conspiring to commit such a crime which in fact occurs,’85 restricting the abovementioned responsibility to a ‘direct participation and an effective commission of the crime.’86 In comparison with the previous considerations, the Rome Statute reflects this more restrictive approach, requiring at least a ‘contribution to a collective attempt of a crime.’87 For the time being the Court has applied Art. 25(3)(d) only in a few decisions. Under this form of responsibility it issued a judgment in the Katanga case,88 declined the charges in Mbarushimana.89 Also, the ICC confirmed the similar conclusions in Ruto.90 The facts of Mbarushimana are relevant for the understanding of this provision. The reasoning of the Court was based, inter alia, on interpretation of the Mbarushimana’s 82

 Kai Ambos, General Principles of Criminal Law in the Rome Statute, 10 Crim. L. Forum 1, 12 (1999), available at (accessed Mar. 12, 2015) [hereinafter Ambos, General Principles].

83

 Id. at 12.

84

 Draft Code of Crimes against the Peace and Security of Mankind, in Report of the International Law Commission, U.N. GAOR, 46th Sess., Supp. No. 10, U.N. Doc. A/46/10 (1991), reprinted in 2(2) Y.B. Int’l L. Comm’n 99 (1991), U.N. Doc. A/CN.4/SER.A/1991/Add.1 (Part 2), at (accessed Mar. 12, 2015).

85

 Draft Code of Crimes against the Peace and Security of Mankind, in Report of the International Law Commission, U.N. GAOR, 51th Sess., Supp. No. 10, U.N. Doc. A/51/10 (1996), reprinted in 2(2) Y.B. Int’l L. Comm’n 18 (1996), U.N. Doc. A/CN.4/SER.A/1996/Add.1 (Part 2), at (accessed Mar. 12, 2015).

86

 Ambos, General Principles, supra n. 82, at 13.

87

 Id.

88

 Katanga, Summary, supra n. 41.

89

 Situation in Democratic Republic of the Congo (The Prosecutor v. Callixte Mbarushimana) ¶ 269, No. ICC-01/04-01/10 (Intl. Crim. Ct., Pre-Tr. Chamber I, Dec. 16, 2011), available at (accessed Mar. 12, 2015).

90

 Ruto et al., supra n. 30, ¶ 351.

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press releases in his capacity of Executive Secretary of Forces Démocratiques pour la Libération du Rwanda [hereinafter FDLR] and his role in the corresponding media campaign as a part of this organization’s agenda, which is not exclusively aimed at the commission of international crimes. The ICC similarly took into consideration the Mbarushimana’s participation in the Saint Egidio peace process between the Government of the Congo and the FDLR91 as a spokesperson92 for the purposes of peace negotiations. Hence, although Mbarushimana had actively participated in the activities of the FDLR, still the criterion of substantial contribution, which would be analyzed further, has not been fulfilled. It indicates the relatively high threshold of Art. 25(3)(d). It is worth mentioning that despite different results for primarily accused in Mbarushimana decision and recent Katanga judgment the following objective and subjective criteria were confirmed and fully applied by the Trial Chamber II in Katanga. As regards the objective elements, they include: 1) commission or attempted commission of a crime within the ICC jurisdiction;93 2) commission of such crime by ‘group of persons acting with a common purpose;’94 3) contribution of a person to the commission of a crime differs from one needed for Art. 25(3)(a)–(c).95 The JCE doctrine was also recognized as inapplicable due to its lower threshold for bringing to responsibility in comparison with Art. 25(3)(d) requirements.96 The differences between the applied concept and the JCE doctrine include 1) whether a ‘defendant found guilty is convicted as principal or accessory;’ 2) whether he ‘must be in the group acting with the common purpose’ or not; 3) whether his contribution amounts to the common purpose or international crimes’ commission; and 4) whether some form of ‘intent or mere knowledge is sufficient for bringing to responsibility.’97 Within the context of the second objective element, the Pre-Trial Chamber I confirmed its definition of ‘the group of persons acting with a common purpose’ given in Lubanga within the context of ‘existence of agreement or common plan for commission of crimes between two or more persons.’98 Such an agreement or common plan should ‘necessarily include the element of criminality but does not need to be specifically directed at the commission of a crime.’99 91

 Mbarushimana, supra n. 89, ¶ 318.

92

 Id. ¶ 319.

93

  Id. ¶ 270.

94

 Id. ¶ 271.

95

 Id. ¶ 276.

96

 Id. ¶ 273.

97

 Id. ¶ 282.

98

 Id. ¶ 271.

99

 Id.

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Interpretation of the third objective element resulted in additional division of two criteria within it, which include 1) level of contribution to the commission of crime100 and 2) contribution after the commission of crime.101 The Pre-Trial Chamber I paid special attention to the fact that such contribution cannot be any and that it is necessary to prove its substantiality.102 The Chamber also emphasizes the intention of the Rome Statute drafters to establish rather serious threshold for charging individual criminal responsibility under Art. 25 in general.103 For instance, public knowledge about any activity does not satisfy the criteria necessary for charging criminal responsibility under Art. 25(3)(d).104 Pro tanto, proving the existence namely of the substantial contribution is necessary for the abovementioned charging.105 In order to establish such contribution to the commission or attempted commission of the crime the Chamber may take into consideration several factors, such as 1) knowledge about general aim of ‘the group of people acting with a common purpose;’ 2) the tainted reputation due to the participation in this group’s criminal activity; 3) efforts made to prevent the commission of crimes; 4) creation of the criminal plan; 5) ‘the position of the suspect in the group;’ and 6) ‘the role the suspect played vis-à-vis the seriousness and scope of the crimes.’106 However, as the Pre-Trial Chamber II stated in the decision of confirmation of charges in Ruto, the substantiality of the contribution first of all should ‘result in the commission of the international crimes charged.’107 In order to establish the contribution ex post facto of the commission of international crime it is necessary to prove the existence of an agreement between the suspect and the group of persons acting with a common purpose regarding such contribution before the commission of this crime.108 In its decision declining to confirm the charges in Mbarushimana the Pre-Trial Chamber I also analyzed an issue of additional criteria for the subjective element for charging individual criminal responsibility under Art. 25(3)(d) and stated that subjective element in this regard shall include 1) an intent to ‘engage in the relevant conduct that allegedly contributes to the crime;’ 109 and 2) an intent of subsequent 100

  Mbarushimana, supra n. 89, ¶¶ 276–284.

101

  Id. ¶¶ 286–287.

102

 Id. ¶ 276.

103

 Id.

104

 Id. ¶ 277.

105

 Id. ¶ 284.

106

 Id.

107

 Ruto et al., supra n. 30, ¶ 354.

108

 Mbarushimana, supra n. 89, ¶ 287.

109

  Id. ¶ 288.

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realization of criminal aim of the group of persons acting with a common purpose or awareness of the group’s plan to commit a crime.110 The existence of intent shall be construed as simultaneous awareness of the suspect regarding his participation in conduct aimed at the commission of international crime and awareness of understanding his conduct as contribution to commission of crimes by the group of persons acting with a common purpose due to which he will be charged with individual criminal responsibility.111 In order to establish the second subjective element the suspect’s knowledge about his conduct as a contribution to the commission of crimes by the abovementioned group, purpose is sufficient.112 4. Katanga and Ngudjolo: A Trend for Changing Modes of Individual Criminal Responsibility? On March 7, 2014, the Trial Chamber II found Mr. Katanga guilty under Article 25(3)(d) as an accessory113 of the commission of crime against humanity in the form of murder and four counts of war crimes committed in Democratic Republic of the Congo.114 Previously the Prosecutor argued that both Mr. Katanga and Mr. Ngudjolo should be subjected to individual criminal responsibility within the meaning of Art. 25(3)(a)115 as principals. However, the Trial Chamber II in its Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges against the Accused Persons changed the mode of individual criminal responsibility of Mr. Katanga from Art. 25(3)(a) to Art. 25(3)(d) while the Court did not undertake the similar action towards Mr. Ngudjolo and further separated their cases.116 The Pre-Trial Chamber II approved the legality of its abovementioned decision referring, inter alia, to the Lubanga case117 where the Appeal Chamber recognized 110

  Mbarushimana, supra n. 89, ¶ 289.

111

 Id. ¶ 288.

112

  Id. ¶ 289.

113

 Situation in Democratic Republic (Prosecutor v. Germain Katanga), (accessed Mar. 12, 2015).

114

 Id.

115

 Katanga & Ngudjolo, supra n. 61, ¶ 540.

116

 Situation in the Democratic Republic of the Congo (The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui), No. ICC-01/04-01/07 (Intl. Crim. Ct., Tr. Chamber II, Nov. 21, 2012), available at (accessed Mar. 12, 2015) [hereinafter Katanga & Ngudjolo, Tr. Chamber II].

117

 Id. ¶ 12.

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the validity of Regulation 55,118 having emphasized that ‘applicable human rights standards allow the modification of the legal characterization in the course of a trial, as long as this does not adversely affect the fairness of the trial.’119 This reference to the human rights standards is controversial. While the ICC is empowered to recharacterize the mode of responsibility, it did so after 288 days after the closure of representing the evidence and 182 days after closure of arguments.120 By virtue of this act the Court had deprived Mr. Katanga from further possibility to present his defence in a better way, which was essential because of the complete change of grounds for accusation. Such actions prima facie may be construed as violation of the procedural rights of the accused (or right for fair trial). Apart from the human rights implications, the Pre-Trial Chamber justified its decision of changing the mode of individual criminal responsibility of Mr. Katanga by 1) resulting his contribution to the general criminal plan in the international crimes’ commission and 2) the conformity of Mr. Katanga’s behaviour with objective and subjective elements necessary for application of Art. 25(3)(d),121 drawing extreme attention that it ‘has not exceed the facts contained in the decision on the confirmation of charges’122 and that the changing of mode of individual criminal responsibility is ‘only a relatively limited step.’123 The Pre-Trial Chamber also emphasized that its Majority intended to ‘restrict itself to the facts pertaining solely to Mr. Katanga’124 and noted that actus reus of participation in a crime within the meaning of Article 25(3)(d), especially the requirement of a significant and important contribution,125 are in this case an integral part of the material elements characterizing the commission of the crime within the meaning of Article 25(3)(a), i.e. the requirement of an essential contribution resulting in the realization of the objective elements of the crimes.126 118

 Regulations of the Court, Regulation 55(1), at (accessed Mar. 12, 2015), the text follows as: ‘1. In its decision under article 74, the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.’

119

 Katanga & Ngudjolo, Tr. Chamber II, supra n. 116, ¶ 12.

120

 Wyngaert, Katanga, supra n. 38, ¶ 124.

121

 Katanga & Ngudjolo, Tr. Chamber II, supra n. 116, ¶¶ 28, 30.

122

 Id. ¶ 31.

123

 Id.

124

 Id. ¶ 32.

125

 Id. ¶ 33.

126

 Id.

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It also indicated that Mr. Katanga’s knowledge regarding realization of the crimes, inter alia, during the attack on the Bogoro village, ‘allows the Majority to deduce that the subjective element considered under Article 25(3)(d) is consistent with the previously described facts and circumstances.’127 The change in the mode of responsibility has been apparently a  hot issue before the panel. Judge Van den Wyngaert in her Dissenting opinion to the Katanga judgment strongly opposed to this Majority’s decision. She states that ‘recharacterizarion of the charges in this case from Article 25(3)(a) to Article 25(3)(d) without fundamental change of “facts and circumstances” of the Confirmation Decision’ is impossible and therefore violates Art. 74 of the Rome Statute.128 As a response, instead of being merely silent, the Majority reacted in an interesting way by presenting its Concurrent opinion. While the Concurrent opinion appears to be a rebuttal to what Judge Van den Wyngaert had written, the Majority’s reasoning is rather poor and aims to negate all allegations by simply denying them. This might raise an issue of belief in their confidence in what has been decided. Returning to the essence of the Trial Chamber II’s Judgment pursuant to Art. 74 of the Rome Statute in the case of The Prosecutor v. Germain Katanga it is worth mentioning that this Chamber accepted and agreed with the logic of the Pre-Trial Chamber II regarding changing the mode of individual criminal responsibility of Mr. Katanga. The Trial Chamber examined objective and subjective elements necessary for application of Art. 25(3)(d) and came to the conclusion that all of them were confirmed.129 Having analyzed all the facts, circumstances and evidence provided by the Parties the Trial Chamber II stated that ‘the activity engaged in by Mr. Katanga . . . had a significant effect or impact on the commission of the crimes within the meaning of Article 25(3)(d).’130 The Chamber paid special attention to the issue of the contribution of Mr. Katanga to the commission of crimes and came to the conclusion that facts and circumstances prove its significance.131 The opposite situation happened with Mr. Ngudjolo Chui. After separation of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui case and changing the mode of individual criminal responsibility of Mr. Katanga, the Trial Chamber II in its Judgment pursuant to Art. 74 of the Rome Statute in the case of The Prosecutor v. Mathieu Ngudjolo Chui acquitted Mr. Ngudjolo of his previous charges and ordered his immediate release.132 The main argumentation of the Chamber in this regard 127

 Katanga & Ngudjolo, Tr. Chamber II, supra n. 116, ¶ 33.

128

 Wyngaert, Katanga, supra n. 38, ¶ 32; Katanga, Summary, supra n. 41, ¶ 55.

129

 Katanga, Summary, supra n. 41, ¶ 73.

130

 Id. ¶ 77.

131

  Id. ¶¶ 82, 84.

132

 Situation in Democratic Republic of the Congo (Prosecutor v. Mathieu Ngudjolo Chui), (accessed Mar. 12, 2015).

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may be summarized as its inability to establish beyond the reasonable doubt facts necessary for bringing to individual criminal responsibility under Art. 25 lato sensu and insufficiency of the received evidence.133 Therefore last events of ICC practice seem to be rather controversial. On the one hand it remains evident that ICC supports the trend of acquitting individuals where there is insufficient evidence like in the Mbarushimana case. On the other hand the Katanga case may become a new trend in ICC practice due to additional practical recognition of the legality of Regulation 55 and further ability to change a previously declared mode of individual criminal responsibility. In our opinion, the contradictory decisions concerning Mr. Katanga and Mr. Ngudjolo, whose cases were originally joined but later divided, may in the future lead to legal uncertainty. The Pre-Trial Chamber II and the Trial Chamber II have analyzed the same situation, the same plan, the same events and yet they have come to different conclusions. Indeed, Mr. Katanga has to consider the outcome of his case unfair in comparison to the Ngudjolo’s one. In this regard aligning with the principle of legal certainty seems to be the best solution for preventing such controversies in further ICC practice. However, its application by ICC is still to be fully introduced to the full extent. For instance, Judges Fatoumata Diarra and Bruno Cotte in their concurring opinion to the Katanga case clearly indicated the importance of possible implications imposed by the principle of legality by saying ‘[w]e understand the principle of legality as well as that of fair and impartial proceedings, which have informed our approach throughout this case.’134 Yet those implications are quite unclear since no explanations follow that sentence. However, even without taking into account the abovementioned ambiguity, the international criminal law is initially apparently not the most suitable branch for this principle up to date, as the former Associate Legal Officer at the ICTY S. Dana indicated: ‘[I]n the context of prosecuting . . . genocide, crimes against humanity, and war crimes, international criminal law appears to be resigned to such a principle . . .’135 The starting point for this perception has undoubtedly been the Nuremberg process where the main argument of the defence was referring to the lack of legal rule prohibiting the acts under consideration at the time of their conducting. 133

 Ngudjolo, supra n. 40, ¶¶ 404, 503, 516.

134

 Situation in the Democratic Republic of the Congo (Prosecutor v. Germain Katanga) ¶ 3, No. ICC-01/0401/07 (Intl. Crim. Ct., Tr. Chamber II, Mar. 7, 2014) (concurring opinion of Judges Fatoumata Diarra and Bruno Cotte), available at (accessed Mar. 12, 2015).

135

 Shahram Dana, Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Law Sentencing, 99(4) J. Crim. L. & Criminology 858 (2009), available at (accessed Mar. 12, 2015).

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Nevertheless, the ICC should stick to this principle to avoid further unfairness. Otherwise, not only will the Court give its opponents more grounds for rational criticism and therefore undermine the whole system of international criminal justice but also sow the seeds for personal tragedy of innocent convicted by the ICC. 5. Conclusions Individual criminal responsibility originated as a response to modern challenges of necessity to hold selected persons liable for war atrocities and crimes against humanity. Development of this concept has led to the adoption of the Rome Statute in 1998 containing Art. 25 devoted to the forms of individual criminal responsibility. In this regard, Art. 25 is fairly the most exhaustive list of such forms, compared with its predecessors: international military tribunals and ad hoc tribunals. In spite of this, already the first judgment of the Court has shown that the concept of individual criminal responsibility is far from complete. Judge Fulford in his Separate opinion addressed the contentious aspects concerning not only detailed issues like the necessity for a doctrine determining the level of perpetrator’s participation, but also such general matters as whether Art. 25(3) contains in itself a hierarchy of individual criminal responsibility forms. While it is doubtful if Fulford will have an opportunity to convince the Chambers to apply his arguments later, since he is already a resigned judge, no doubt exists that the concept at stake will only be developed through the subsequent practice of the ICC. Nevertheless he has a worthy and vigorous successor in Judge Van den Wyngaert. Later, she consistently criticizes chiefly the control over a crime doctrine and its application by the ICC which was reflected in her solid dissenting opinions to Ngudjolo and Katanga. These cases represent an interesting instance of potential application of the legality principle. Whereas they both concerned the situation at the Bogoro village, the Court divided the cases and later changed the mode of responsibility for Mr. Katanga, which did not happen with acquitted Mr. Ngudjolo. The recharacterization of accused’s actions is not contentious per se. This occurred after the closure of pleadings leaving Mr. Katanga without any opportunity not only merely to think over the new strategy of defence but also to act accordingly. This fact raises serious concerns in respect of human rights and the legality principle. Whether there has been indeed violation of those principles, it is difficult to say. In any case, the Court should be more careful in its decisions, as what can seem just a single mistake of system of justice is always a personal tragedy. Although the Rome Statute aims to put an end to impunity of those guilty for grave crimes, this principle does not imply the need to have as many accusatory judgments as possible. Apart from these implications, the current practice brought to light also a strong critic towards the control over a crime doctrine applied by the Majority in the Lubanga, Ngudjolo and Katanga cases. As Judges Fulford and Van den Wyngaert, inter alia,

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argue, it is questionable whether this doctrine may be applicable due to the issue of blameworthiness. The doctrine under consideration was specifically designed for the German legal system where the necessity to understand who is a principal or an accessory was caused by different sentencing of them, while the Rome Statute does not explicitly require the same. This issue however might be avoided by interpreting the Rome Statute in such way as implicitly requiring assessing each situation on the case by case basis and therefore causing differentiation in the sentencing in any way. As seen, the current ICC case law shows a lack of clear understanding of some concepts under Art. 25(3). The same can be said regarding other forms of liability, especially those that have not been applied by the ICC yet. However, given the cost of the necessity to apply the Rome Statute means to humanity, it would be better to preserve the status quo of its unapplied provisions. References Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95 (I), U.N. GAOR, 1st Sess., pt. 2, at 1144, U.N. Doc. A/236 (1946), at (accessed Mar. 12, 2015). Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Charter of the International Military Tribunal, Aug. 8, 1945, Art. 6, 82 U.N.T.S. 279, 284, at (accessed Mar. 12, 2015). Ambos, Kai. Article 25. Individual Criminal Responsibility, in Commentary on the Rome Statute of the International Criminal Court 752 (Otto Triffteter, ed.) (2nd ed., Beck; Hart; Nomos 2008). Ambos, Kai. General Principles of Criminal Law in the Rome Statute, 10 Crim. L. Forum 1, 12–13 (1999), available at (accessed Mar. 12, 2015). Bogdan, Attila. Individual Criminal Responsibility in the Execution of a ‘Joint Criminal Enterprise’ in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia, 6(1) Int’l Crim. L. Rev. 67 (2006). doi:10.1163/157181206777066727 Case of the S.S. ‘Lotus’ (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 9, at 18–19 (Sep. 7), available at (accessed Mar. 12, 2015). Charter of the International Military Tribunal for the Far East, Apr. 26, 1946, Art. 5, T.I.A.S. No. 1589, at (accesed Mar. 12, 2015). Dana, Shahram. Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Law Sentencing, 99(4) J. Crim. L. & Criminology

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858 (2009), available at (accessed Mar. 12, 2015). Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, U.N. GAOR, 53rd Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), reprinted in 2 Y.B. Int’l L. Comm’n 20 (2001), U.N. Doc. A/ CN.4/SER.A/2001/Add.1, at (accessed Mar. 12, 2015). Draft Code of Crimes against the Peace and Security of Mankind, in Report of the International Law Commission, U.N. GAOR, 46th Sess., Supp. No. 10, U.N. Doc. A/46/10 (1991), reprinted in 2(2) Y.B. Int’l L. Comm’n 99 (1991), U.N. Doc. A/CN.4/SER.A/1991/ Add.1 (Part 2), at (accessed Mar. 12, 2015). Draft Code of Crimes against the Peace and Security of Mankind, in Report of the International Law Commission, U.N. GAOR, 51th Sess., Supp. No. 10, U.N. Doc. A/51/10 (1996), reprinted in 2(2) Y.B. Int’l L. Comm’n 18 (1996), U.N. Doc. A/CN.4/ SER.A/1996/Add.1 (Part 2), at (accessed Mar. 12, 2015). Fauchald, Ole K., & Stigen, Jo. Corporate Responsibility before International Institutions, 40 Geo. Wash. Int’l L. Rev. 1026, 1038–39 (2009), available at (accessed Mar. 12, 2015). Hailbronner, Kay, & Kau, Martin. Der Staat und der Einzelne als Völkerrechtsubjekte, in Völkerrecht 156 (Wolfgang G. Vitzthum. ed.) (5th ed., De Gruyter 2010). International Military Tribunal (Nuremberg) Judgement and Sentences (Oct. 1, 1946), 41 Am. J. Int’l L. 172, 220–221 (1947). Liefänder, Thomas R. The Lubanga Judgment of the ICC: More Than Just the First Step?, 1(1) Cambridge J. Int’l & Comp. L. 191 (2012). doi:10.7574/cjicl.01.01.38 Militello, Vincenzo. The Personal Nature of Criminal Responsibility and ICC Statute, 5(4) J. Int’l Crim. Justice 944 (2007). doi:10.1093/jicj/mqm039 Nitsche, Dennis. Der Internationale Strafgerichtshof ICC und der Frieden: Eine vergleichende Analyse der Befriedungsfunktion internationaler Straftribunale 169– 170 (Nomos 2007). Ohlin, Jens D., et al. Assessing the Control-Theory, 26(3) Leiden J. Int’l L. 745–746 (2013). doi:dx.doi.org/10.1017/S0922156513000319 nd Oppenheim, Lassa. 1 International Law: A Treatise 107 (2 ed., Longmanns, Green & Co. 1912), available at (accessed Mar. 12, 2015). Regulations of the Court, at (accessed Mar. 12, 2015).

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Röling, Bert V.A. The Significance of the Laws of War, in Current Problems of International Law: Essays on UN Law and on the Law of Armed Conflict 46 (Antonio Cassese, ed.) (Giuffrè 1975). Rome Statute of the International Criminal Court, Jul. 17, 1998, Art. 25(3), 2187 U.N.T.S. 3, at (accessed Mar. 12, 2015). Shaw, Malcolm N. International Law 197 (6th ed., Cambridge University Press 2008). Situation in Democratic Republic (Prosecutor v. Germain Katanga), (accessed Mar. 12, 2015). Situation in Democratic Republic of the Congo (Prosecutor v. Mathieu Ngudjolo Chui), (accessed Mar. 12, 2015). Situation in Democratic Republic of the Congo (The Prosecutor v. Thomas Lubanga Dyilo) ¶¶ 323, 329–335, 338, 343–367, No. ICC-01/04-01/06 (Intl. Crim. Ct., Pre-Tr. Chamber I, Jan. 29, 2007), available at (accessed Mar. 12, 2015). Situation in Democratic Republic of the Congo (The Prosecutor v. Callixte Mbarushimana) ¶¶ 269–271, 273, 276–284, 286–289, 318–319, No. ICC-01/04-01/10 (Intl. Crim. Ct., Pre-Tr. Chamber I, Dec. 16, 2011), available at (accessed Mar. 12, 2015). Situation in the Central African Republic (The Prosecutor v. Jean-Pierre Bemba Gombo) ¶¶ 369–370, No. ICC-01/05-01/08 (Intl. Crim. Ct., Pre-Tr. Chamber II, Jun. 15, 2009), available at (accessed Mar. 12, 2015). Situation in the Democratic Republic of the Congo (Prosecutor v. Thomas Lubanga Dyilo) ¶¶ 322, 920, 999, 1358, No. ICC-01/04-01/06 (Intl. Crim. Ct., Tr. Chamber I, Mar. 14, 2012), available at (accessed Mar. 12, 2015). Situation in the Democratic Republic of the Congo (Prosecutor v. Thomas Lubanga Dyilo) ¶¶ 1, 3, 6–8, 10–11, 19–21, No. ICC-01/04-01/06 (Intl. Crim. Ct., Tr. Chamber I, Mar. 14, 2012) (separate opinion of Judge Adrian Fulford). Situation in the Democratic Republic of the Congo (Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui) ¶¶ 500–518, 522–523, 540, No. ICC-01/04-01/07717 (Intl. Crim. Ct., Pre-Tr. Chamber I, Sep. 30, 2008), available at (accessed Mar. 12, 2015). Situation in the Democratic Republic of the Congo (Prosecutor v. Germain Katanga) ¶ 3, No.  ICC-01/04-01/07 (Intl. Crim. Ct., Tr. Chamber II, Mar. 7, 2014)

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(concurring opinion of Judges Fatoumata Diarra and Bruno Cotte), available at (accessed Mar. 12, 2015). Situation in the Democratic Republic of the Congo (The Prosecutor v. Germain Katanga) ¶¶ 32, 124, 281, No. ICC-01/04-01/07 (Intl. Crim. Ct., Tr. Chamber II, Mar. 7, 2014) (minority opinion of Judge Christine Van den Wyngaert), available at (accessed Mar. 12, 2015). Situation in the Democratic Republic of the Congo (The Prosecutor v. Mathieu Ngudjolo) ¶¶ 404, 473, 484–486, 503, 516, No. ICC-01/04-02/12 (Intl. Crim. Ct., Tr. Chamber II, Dec. 18, 2012), available at (accessed Mar. 12, 2015). Situation in the Democratic Republic of the Congo (The Prosecutor v. Mathieu Ngudjolo) ¶¶ 22–24, No. ICC-01/04-02/12 (Intl. Crim. Ct., Tr. Chamber II, Dec. 12, 2012) (concurring opinion of Judge Christine Van den Wyngaert). Situation in the Democratic Republic of the Congo (The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui) ¶¶ 12, 28, 30–33, No. ICC-01/04-01/07 (Intl. Crim. Ct., Tr. Chamber II, Nov. 21, 2012), available at (accessed Mar. 12, 2015). Situation in the Republic of Kenya (The Prosecutor v. William Samoei Ruto et al.) ¶¶ 283–284, 287, 291–292, 301, 306, 313, 333, 351, 354, No. ICC-01/09-01/11 (Intl. Crim. Ct., Pre-Tr. Chamber II, Jan. 23, 2012), available at (accessed Mar. 12, 2015). Statute of the International Tribunal for Rwanda, Art. 6, U.N. Security Council Res. 955 (1994), U.N.Doc. S/RES/955 (November 8, 1994), (accessed Mar. 12, 2015). Statute of the International Tribunal for the Former Yugoslavia, Art. 7 (adopted by U.N. Security Council Res. 808 (1993), U.N. Doc. S/RES/808 (February 22, 1993)), at (accessed Mar. 12, 2015). Summary of Trial Chamber II’s Judgment of 7 March 2014, Pursuant to Article 74 of the Statute in the Case of The Prosecutor v. Germain Katanga ¶¶ 55, 73, 77, 82, 84, (accessed Mar. 12, 2015). System Criminality in International Law 15 (Harmen van der Wilt & André Nollkaemper, eds.) (Cambridge University Press 2009). The Prosecutor v. Du[ko Tadi] a/k/a/ ‘Dule,’ Opinion and Judgment ¶¶ 191–192, No. IT-94-1-T (Intl. Crim. Trib. for the Former Yugo., Tr. Chamber, May 7, 1997), available at (accessed Mar. 12, 2015). The Prosecutor v. Ferdinand Nahimana et al., Judgment ¶ 483, No. ICTR-99-52-A (Intl. Crim. Trib. for the Former Yugo., App. Chamber, Nov. 28, 2007), available at (accessed Mar. 12, 2015).

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The Prosecutor v. Milomir Stakić, Judgment ¶ 62, No. IT-97-24-A (Intl. Crim. Trib. for the Former Yugo., App. Chamber, Mar. 22, 2006), available at (accessed Mar. 12, 2015). Information about the authors Olena Kucher (Kyiv, Ukraine) – PhD Student, Institute of International Relations, Taras Shevchenko National University of Kyiv (36/1 Melnikova str., Kyiv, 04119, Ukraine; e-mail: [email protected]). Aleksey Petrenko (Göttingen, Germany) – LLM Student, University of Göttingen, Graduate of the Immanuel Kant Baltic Federal University (Kaliningrad, Russia) (Annastraße, Göttingen, 37075, Germany; e-mail: [email protected]).

BOOK REVIEW NOTES

Russian Contract Law for Foreigners1

Andrey Shirvindt, Lomonosov Moscow State University (Moscow, Russia) DOI: 10.17589/2309-8678-2015-3-1-169-180

The book by Maria Efremova, Svetlana Yakovleva and Jane Henderson aims to serve as a short introduction to Russian contract law for a foreign lawyer. Assuming that the target readership are mainly English lawyers the book’s second aim, expressly stated by the authors (pp. i, 1), is to make lawyers from common law countries familiar with codified law, with Russian law being just an example. The book covers most of the general law of obligations as well as some questions of formation and invalidity of contracts that belong to the general part of the Civil Сode, with this preceded by a brief introduction into the Russian law dealing with its history, federal structure and state agencies of Russia, its court system, sources of law and legal profession. 1. An Introduction to Russian Contract Law As far as its first and principal claim is concerned, that is to provide a foreign lawyer with an introduction to Russian contract law, this book is a success, in most ways that matter, and fills a need. It could have been written differently in one aspect or another, but there seems not much about it that could have been done better. Throughout the book, the authors keep a sense of proportion in many respects. While framing a short introduction like this, one is inevitably faced with many difficult choices concerning in particular the level of generalization, the extent to which the national concepts and terminology of both the reader and the legal system under examination are present in the text, and the balance between law in books and law in action. The respective choices made by the authors seem happy to me. It is only the way their general concept has been realized that sometimes suffers from minor inaccuracies. Drawing an overall picture of the Russian contract law the authors go into necessary details every now and then correctly identifying the central issues of every 1

 Reviewed book: Maria Efremova et al., Contract Law in Russia (Hart Publishing 2014). XXII; 304 pp.

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sphere of law in question. In most instances, the details go only as far as necessary and the generalizations do not lead to oversimplification. The book is in English and the English lawyer is the target reader. Not surprisingly, both terminology and conceptual framework used by the authors are primarily those of the English common law. However, the Russian terminology in original Cyrillic and transliteration is also there to an extent sufficient to equip the reader with basic legal Russian, so that he would be able to bridge the gap between the explanations of the book and the realities of Russian law, with which he might be confronted. The relevant Russian concepts are introduced to the reader with help of their functional counterparts from the common law. This approach is obviously not able to offer any full matches and needs a lot of comparative research to be done in every particular issue concerned. A good illustration of the challenges brought on by this way of translation from one legal language to another is the attempt of the authors to find equivalents of the notorious English doctrine of consideration in Russian law (Ch. 5 of the book). The search for clear boundaries and functions of the doctrine on the one hand and for its counterparts on the European continent on the other seems to go on.2 Under these circumstances it is not very promising to try to rethink the Russian contract law on this vague conceptual basis, especially considered that the functions of the relevant Russian concepts are often themselves far from being clear. Nevertheless, the approach may still be useful to achieve the introductory effect and its shortcomings can be very well tempered by explicit warnings to the reader. The authors do provide such a warning in the case of consideration (p. 108), but forget to do it in the case of registration of contracts. Controversial, perhaps even superfluous at least in some instances the requirement of state registration of contracts stands by itself and for some good reasons is not regarded as a kind of form requirements3 as the authors put it (p. 76: ‘The Civil Code distinguishes the following types of written form: simple; notarial; or subject to state registration’). This fact has to be taken into account not just for the sake of theoretical purity, but also because of its important practical implications. It may be left open whether it is a good 2

 See, e.g., Eugen Bucher, England und der Kontinent. Zur Andersartigkeit des Vertragsrechts – die Gründe, und zu consideration, 105 Zeitschrift für vergleichende Rechtswissenschaft 164, 171–184 (2006), available at (accessed Mar. 13, 2015); Hein Kötz, Indicia of Seriousness, in 1 The Max Planck Encyclopedia of European Private Law 863–865 (Jürgen Basedow et al., eds.) (Oxford University Press 2012).

3

 See, e.g., Информационное письмо Президиума ВАС РФ от 16 февраля 2001 г. № 59 «Обзор практики разрешения споров, связанных с применением Федерального закона «О государственной регистрации прав на недвижимое имущество и сделок с ним»» [Informatsionnoe pis’mo Prezidiuma VAS RF ot 16 fevralya 2001 g. No. 59 ‘Obzor praktiki razresheniya sporov, svyazannykh s primeneniem Federal’nogo zakona ‘‘O gosudarstvennoi registratsii prav na nedvizhimoe imushchestvo i sdelok s nim‘’’ [Informational Circular of Presidium of the Supreme Commercial Court of the Russian Federation No. 59 of February 16, 2001, ‘Overview of Practice on Resolution of Disputes Connected with the Application of the Federal Law on State Registration of Rights to Immovable Property and Transactions with It’]], ¶ 14; Татаркина К.П. Форма сделок в гражданском праве России: Монография [Tatarkina K.P. Forma sdelok v grazhdanskom prave Rossii: Monografiya [Ksenia P. Tatarkina, Form Requirements in the Russian Civil Law: Monograph]] 110 (Tomsk State University of Control Systems and Radioelectronics 2012).

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idea to ignore these subtleties of Russian law in an introductory book, but it is surely advisable to warn the reader about them. The systematic exposition of the Russian contract law as fixed in the statutes and textbooks is not the only concern of the authors. At every turn, they keep in view the law in action as well, providing the reader with vast citations from the actual court decisions and occasionally making remarks on professional habits of Russian lawyers and existing usages of court practice and legal drafting. It goes without saying, that remarks of this kind usually rest on personal experiences of the author and can hardly pretend to be either universally valid, or representative. With this kept in mind, the reader will surely gain from the personal insights of the authors, enabling him to get a first impression of the Russian law in action based on a second-hand experience before he gets an opportunity to form his own opinion. Much more has to be said about the practice of Russian courts as portrayed in the book. To begin with, I’d like to stress that it was definitely a wise idea to fill the book with a considerable amount of court decisions, not just mentioned in footnotes, but presented to the reader in abridged versions, vast enough to show the material solutions as well as popular patterns of judicial reasoning, and to familiarize the reader with the prevailing style of decision drafting. At the same time, here again, the reader has to be warned not to overestimate the data that can be taken from the decisions cited. Two things are worth remembering. First, not every decision by the Supreme Commercial Court plays the same role. One has to draw a line between the ruling (opredelenie) and the resolution (postanovlenie) of the Court – to keep the English terms of the book. It is only the latter that contains an authoritative or even binding opinion of the Supreme Commercial Court on a particular legal problem, whereas the former gives an answer only to the question, whether a concrete case has to be brought before the Presidium of the Court, so that a resolution could be issued. This answer had4 to be positive only in cases, where consistency of court practice, human rights or public interests were at stake (Code of Commercial Procedure of the Russian Federation, Art. 304(1), before August 6, 2014). Hence, a negative answer can never be said to ultimately approve the position taken by lower courts. Yet, the authors do very often speak about opinions of the Supreme Commercial Court, while in fact discussing mere rulings (see, e.g., pp. 60–61: ‘Another example of the Supreme Commercial Court agreeing with the lower courts . . .’; 64: ‘[I]n a case in 2010, the Supreme Commercial Court agreed with the lower courts’ logic . . .’; 66–67, 71, 82, 97, 134: ‘The Court specifically stated that the right of a party to an invalid contract to claim unfounded enrichment for the difference in value between their performance and the other party’s constitutes an additional consequence of the invalidity’ (while actually there is nothing, but a neutral description of the position, taken by the lower courts), 139: ‘But the Supreme Commercial Court has a clear position on this . . .’ etc. (emphasis added)). In point of fact even the rulings have exerted some 4

 Before the Court was abolished.

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influence in practice, and still their role and weight are not to be compared with those of the resolutions. Thus, it is only in the light of this differentiation that the following assertion by the authors holds true: ‘Case law gives useful clues to the precise meaning of legal rules, and when the cases have been cited by the topmost Russian courts as examples of the correct interpretation of the Civil Code, then irrespective of whether that is law creation or law interpretation, the example will be respected. Both lawyers advising clients and judges will take note’ (p. 1). Second, to summarize is to drop out details. The authors use the abridged versions of court decisions as a means to show the way, in which the courts apply a rule under consideration. Accordingly, they omit the details, which seem irrelevant for respective discussion. Sometimes it makes the decisions look odd and unreasonable, whereas in fact they are not. Inaccuracies of this kind are most likely due not only to the fact that the authors’ analysis was not always careful enough, but also to a feature, typical of the reasoning style of Russian judges. Usually, the Russian courts are not content with just naming the key reasons, in itself sufficient to justify the decision; they tend in addition to enumerate all the reasons that support it in one way or another, without specifying the precise role of each of the rationes decidendi and the extent to which the final conclusion depends on each of them. To have an example of both, inaccurate summarizing by the authors and the described style of reasoning, one can go to p. 62 of the book, where the Ruling of the Supreme Commercial Court No. VAS-17142/10 of December 30, 2010, is discussed. The courts dismissed a claim for damages for breach of contract. One of the reasons was that the plot to build on had not been duly identified in the contract. The authors criticize the decision and make it look untenable: ‘The court did not pay any attention to the fact that the address and dimensions could be sufficient to define the plot. The parties had clearly expressed their will to transfer the land plot and knew which plot it was. In declaring the contract not concluded the court was following a norm of the Code formally and keeping literally to the text, but failing to respect the parties’ will as expressed in the contract.’ First of all, the courts expressly say that the provided evidence does not establish either boundaries nor area, nor address of the plot, so that the criticism apparently misses the point. Anyway, that was just one of the reasons given by the courts. They also pointed out that the land plot didn’t exist at all, that is to say, the larger plot, which would include the one in question, had never been subdivided. Moreover, there was no evidence that the building created by one of the parties to the contract was really situated on the large land plot provided by the other party. Aside from that the state agency, which entered into the contract in the name of the state, had actually no authority to do it. The reader of the book is supposed to have some basic knowledge of the English common law generally and of contract law, but is not expected to have any precise idea of Russian contract law (or any other codified law), nor of Russian law as such. That is why the book supplies the reader with some ‘useful information’ about Russian law generally before starting with contract law (pp. 4–41). Here again the authors show their sense of proportion and give a very general account of Russian legal

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history, its constitution, etc. with only few oversimplifications. Most of the basic knowledge needed to understand the following exposition of contract law is there. However, in my opinion one issue would deserve a more detailed discussion – the specific type of judicial activities, known to some countries with socialist experience and almost fully unknown outside this area, the binding general statements of supreme courts on abstract legal issues, that has no connection with any concrete case brought before the court. An English lawyer would hardly be able to understand this phenomenon mentioned in the book (pp. 28–29) without extensive explanations as to the way it works and the role it plays. ‘The law is stated as at 1 September 2013’ (p. 2). The book came out in the middle of a very special period of Russian legal history. The Russian law is undergoing currently a far-reaching transformation. Two different reforms happened to take place at the same moment: one of the civil law and the other of the court system. The former has stretched in time, so that new draft amendments become law from time to time. The authors have paid due regard to this fact: they inform the reader about the reform in general (pp. 15–16) and repeatedly refer to the drafts in their treatment of the respective questions (pp. 52–53, 60, 66, 78, 93, 100, 111, etc.). Yet, the reform goes on and a new updated edition of the book will become necessary very soon. The rules on assignment have been already changed; so that the part of the book dealing with them (Ch. 8, pp. 174–192) has become obsolete to a certain extent (cf., e.g., the explanations on the non-assignment clauses (p. 184) or those on the liability of the original creditor (pp. 186–188)). Apparently, a draft bill touching upon almost every corner of the general part of the law of obligations is about to become law, which will necessitate a revision of large parts of the book. At the same time, it is worth mentioning that in many cases the reform just fixes in the Code the approaches developed by the courts so in effect the rules often remain the same (cf., e.g., the passages of the book about the assignment of the rights that have not yet arisen (p. 179) or about the notification from the assignee (rather than the assignor) (p. 180)). The other reform carried out recently was the abolition of the Supreme Commercial Court, which ‘came as a great surprise’ (p. 20) – to put mildly. The book describes it as an envisaged reform (pp. 20–21). It has become reality now. For the topics covered by the book, this event matters primarily because of an unprecedented productivity of the court in issuing the abstract general recommendations that came as a reaction on the fatal news. Many of them deal with central areas of contract law, termination of contract and contractual freedom among them, at times bringing radical changes. Their future impact will for sure depend on the political will of the ‘new’ Supreme Court. Be it as it may, they should be reflected in a revised edition of the book, unless it will become clear that courts do not pay them any attention at all. Above that, the abolition of the Supreme Commercial Court may stand for a conservative attitude of the Russian legislator as regards the changes triggered in the last years by the Court, whose activities were favoring a more independent judiciary and a permanent

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dialogue with the academia, a less formal interpretation and application of the statutes, a more liberal contract law.5 In a long-term perspective, this aspect might cause more fundamental changes of contract law than the first one. Although at times controversial, the description of the substance of Russian contract law given in the book is for the most part defensible. One should keep in mind that the current state of Russian law is marked by a very high degree of uncertainty and a deeply felt want of communis opinio on nearly every essential legal problem. Therefore, any description of Russian law must remain controversial unless it gives a picture of a law, which is controversial itself. Finally, there is no in-depth analysis in the book, which is only natural considering its genre. Sometimes, however, the authors cease to be purely descriptive and turn to criticisms and generalizations. These are not particularly convincing and could hardly be duly substantiated regard paid to the purposes of the book. Two statements may serve as good examples: ‘Basically in Russian contract law the will of the legislator predominates over the will of the contracting parties, which may seem a rather incongruous legislative solution, considering that the main goal of contract law is to enforce agreements between parties on the terms they choose’ (p. 50); and ‘[a]ny codification of contract law limits freedom of contract to some extent’ (p. 75). Both of them are obviously too simplistic and need qualification. We’ll come back to the second one later. As far as the first one is concerned, it is undoubtedly true that ‘to enforce agreements between the parties on the terms they choose’ is one of the principal goals of contract law, but it is by no means uncontested nowadays that it is the main one.6 The extent, to which Russian law really deviates from the global or western trends as to the balance between freedom of contract and contractual justice, or to the measure of legislative interference with freedom of contract, may be an issue for a comparative research, but there is scarcely any reason to regard the Russian contract law as an odd man out in this respect. 5

 To cite the book: ‘[T]he role of the courts, and particularly the commercial courts headed by the Supreme Commercial Court, is instrumental in the development of Russian contract law in practice. Despite some resistance by Russian legal theoreticians, it is clear that case law is a source of law in Russia, and the Supreme Commercial Court, particularly under its current Chairman, Anton Aleksandrovich Ivanov, has been trying to clarify and systematise the use of the Civil Code, and sensibly fill any gaps. Sometimes the Supreme Commercial Court is not consistent in its compulsory explanations and legal opinions, which gives rise to unfortunate inconsistencies. However, it is still early days’ (p. 291).

6

 Cf., e.g., James Gordley, The Philosophical Origins of Modern Contract Doctrine 230 (Clarendon Press 1991): ‘[T]here is widespread agreement that any viable theory of contract will have to take the fairness of a contract into account, yet there is no agreement as to how to do so;’ David J. Ibbetson, A Historical Introduction to the Law of Obligations 248 (Oxford University Press 1999): ‘[T]he principal cross-current playing against the Will Theory was the idea that the law ought to strive towards a goal of achieving justice or avoiding injustice, rather than simply giving effect to the agreement of the parties;’ Simon Whittaker & Reinhard Zimmermann, Coming to Terms with Good Faith, in Good Faith in European Contract Law 700 (Cambridge University Press 2000): ‘[O]ur study emphasizes the fact that all [England included. – A.S.] the legal systems included within our study have moved away or are in the process of moving away from a paradigm of contract which focuses almost exclusively on the autonomy of the parties.’

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2. An Introduction to Codified Law? The second claim of the book is to introduce a lawyer trained in a common law tradition to codified law. The authors are much less successful in this undertaking. They fail to specify peculiarities of a codified law on the one hand and suggest some highly questionable links between particular realities of Russian law and the fact it is a codified one on the other. Furthermore, the picture of Russian law drawn in the book is incomplete or sometimes even misleading in as far as its continental European character is concerned. C. Raoul van Caenegem speaks about ‘the contrast that every lawyer in England and on the Continent recognizes, [that is] the absence of codification in the lands of the common law. If common law stands for anything, it is absence of codes, and likewise civil law stands for codification.’7 What is so special about a codified law? Why does the need exist to introduce an English lawyer to codified law? And, by the way, why all the fuss over codification of the English law?8 It would be only natural to expect at least some general commentary on the issue in a book seeking to explain peculiarities of codified law to those, who are used to an uncodified one. After all, what is a code in the technical sense? Not even this question is dealt with appropriately. ‘A Code is not a special type of legislation. It is a federal law which is passed under the normal procedure for adoption of a federal law, specified in the 1993 Constitution articles 105–107’ (p. 25). It may well be true, when the focus is on the hierarchy of sources of law and the legislative procedure. At the same time, it ceases to hold true, as soon as the focus shifts to the techniques, systematics and aims of codification, its historical and philosophical background or its methodological and institutional presuppositions and implications.9 The idea of codification in the technical sense goes hand in hand with the idea of system of law, of its systematical coherence and clarity. The systematic order of the Russian Civil Code stems from the German Pandektensystem with the general part as its landmark. This fact is of great importance for the way the lawyers think in general and for the structure of the law of contract in particular. ‘Many of the general rules about the law of obligations are not, in fact, to be found in Book Two, but in the general part: how contracts are to be concluded, the effect of error or metus on the validity of contracts, etc. And if, for instance, one is dealing with the sale of some hinnies or pigs, one has to consult – the order being determined by the rule of lex specialis derogat legi generali – the special rules about the purchase of livestock, the more general (but still fairly special) rules given for the contract of sale, the general part of 7

 Raoul C. van Caenegem, Judges, Legislators & Professors: Chapters in European Legal History 39 (Cambridge University Press 1987).

8

 See on that Alexandra Braun, The English Codification Debate and the Role of Jurists in the Development of Legal Doctrines, in The Impact of Ideas on Legal Development (= 7 Comparative Studies in the Development of the Law of Torts) (Michael Lobban & Julia Moses, eds.) (Cambridge University Press 2012).

9

 See, e.g., Jan P. Schmidt, Codification, in 1 The Max Planck Encyclopedia of European Private Law, supra n. 2, at 221–225.

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the law of obligations and, finally, the general part of the BGB.’10 It is almost as true for the Russian law of obligations as it is for the German. Not only is contract (dogovor) just one of the grounds of the obligations. The law of obligations is just one sphere of law among others, where договор plays its role. Thus, the obligation and the legal act (sdelka) are the central systematic concepts of the Civil Code, not the contract. The systematic choices of the Russian legislator traditionally predetermine the structure of both university teaching11 and academic discussion, the ‘Dogovornoe pravo’ (‘Contract Law’) by Mikhail Braginsky and Vasily Vitryansky12 making a prominent exception. Now, are the systematic choices of the legislator binding for academia? Well, yes and no. They are surely not as long as just the external structure of exposition is concerned. It might be, for instance, useful to take a systematic perspective different from that of the code in order to make it easier for law students to master the respective sets of rules.13 A remarkable experiment of this kind is „Vertragsrecht“ (‘Contract Law’) by Hein Kötz, a textbook by a German professor on German law addressed to German students and yet structured using the common law pattern.14 Insisting on advantages of this approach the author does not hesitate to stress that it does not contest the thought-out and well-calibrated system of the code, its function being purely didactic.15 It might, further, make sense to describe a national law with help of a different systematic framework to facilitate the access to it for a foreign observer. That is exactly what Basil Markesinis, Hannes Unberath and Angus C. Johnston do in their ‘The German Law of Contract:’ ‘[T]he arrangement of topics in the present book is already anglicised. Heretically, from the perspective of the BGB, we thus bring together groups of norms taken from the first two books of the BGB as far as they bear on the coming into existence of a contract, its enforcement and death, while leaving out other examples of a relationship of obligation such as delict. In fact, so far as we can see, this book is unique, for in Germany even books bearing the title ‘‘contract law‘’ omit from their contents those contract law rules which are comprised in the General 10

 Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition 31 (Juta & Co., Ltd. 1990).

11

 See, e.g., Российское гражданское право: Учебник [Rossiiskoe grazhdanskoe pravo: Uchebnik [Russian Civil Law: Textbook]] (Evgeny Sukhanov, ed.) (Statut 2010). For a detailed discussion of the main textbooks from this point of view cf. Белов В.А. Закономерности структурирования гражданскоправовой науки как предмета университетского изучения // Вестник гражданского права. 2009. Т. 9. № 3 [Belov V.A. Zakonomernosti strukturirovaniya grazhdansko-pravovoi nauki kak predmeta universitetskogo izucheniya // Vestnik grazhdanskogo prava. 2009. T. 9. No. 3 [Vadim A. Belov, Some Trends of Structuring the Science of Civil Law as Subject of University Learning, 9(3) Civil Law Review (2009)]].

12

 Брагинский М.И., Витрянский В.В. Договорное право. Книги 1–5 [Braginsky M.I., Vitryansky V.V. Dogovornoe Pravo. Knigi 1–5 [Mikhail I. Braginsky & Vasily V. Vitryansky, Contract Law, Books 1–5)]] (Statut 1999–2011).

13

 Arguably the first successful attempt of this kind are the Gai Institutiones, a textbook written in the second century AD by Gaius a law professor, who presented the Roman law of the time in a systematic order, completely different from those of the XII Tables or praetorian edict.

14

 Hein Kötz, Vertragsrecht (Mohr Siebeck 2009; 2nd ed., Mohr Siebeck 2012).

15

 Efremova et al., supra n. 1, at VI.

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Part and tend to concentrate on special kinds of contracts and the issues raised by them.’16 It has even happened that a new systematic perspective that had originally aimed nothing but to introduce a foreign lawyer into a national law became influential within the respective national tradition and triggered its systematic reshaping. An outstanding example of such a development is the story of the textbook on the French civil law that was written for the German reader by Karl Salomo Zachariä von Lingenthal, but became popular in France thanks to Charles Aubry and Charles Rau and influenced the further systematic development of French law.17 From this point of view, it is fully legitimate to represent Russian law in a systematic order, understandable to an English lawyer. ‘The aim of this book is to explain Russian contract law to the English reader. It seeks to do this not in the usual way of Russian books on contract law, which is more or less to follow the order of the Russian Civil Code. Instead, our substantive chapters follow the trajectory of the formation, existence and discharge of a contract, which is the approach which would be more familiar to an English lawyer (or other lawyers from non-codified legal systems)’ (p. 1). At the same time, the authors should obviously have informed the English reader not only that the order of the Code is different, but also what the specific structure actually is and why it is this way. The reader might, further, be interested to learn, that the Russian books on contract law follow the order of the Code not just because of an extremely positivistic approach of the academia, but because the Code itself being a brainchild of the academia suits the needs of the university teaching very well – at least as far as its system is concerned (remember the critics of the German BGB call it a „kleiner Windscheid,“ that is an abridged version of a famous textbook). However, the system of a code is there not just to make it more convenient for the user to work with it. The rules of a code are not just placed one after another in a userfriendly fashion, their sequence having nothing to say about the way they should be interpreted and applied (the authors themselves stress the importance of the system, though without explaining it in detail: ‘From the outset, Russian law tries to be logical. It is inherent in having a codified system that order and categorisation are important’ (p. 289)). To the contrary, the systematic choices of the legislator are to be seen as binding value judgments. Like cases should be treated alike. What the system of a code ultimately does is fixing some principal choices as to which cases are alike and which are not. Needless to say, that an insight into this system is a sine qua non for a proper 16

 Basil Markesinis et al., The German Law of Contract: A Comparative Treatise 23 (2nd ed., Hart Publishing 2006).

17

 Karl S. Zachariä, Handbuch des französischen Zivilrechts (Mohr und Zimmer 1808; 4th ed., J.C.B. Mohr 1837; 8th ed., Ernst Mohr 1895); Carl S. Zachariae, Cours de droit civil français (F. Lagier 1839–1846; 2nd ed., Méline; Cans 1850; 3rd ed., Cosse 1856–1863). For a detailed discussion, cf. Karl H. Neumayer, Die wissenschaftliche Behandlung des kodifizierten französischen Zivilrechts bis zur Dritten Republik, in 1 Wissenschaft und Kodifikation des Privatrechts im 19. Jahrhundert 173–196 (Vittorio Klostermann 1974); Andreas B. Schwarz, Einflüsse deutscher Zivilistik im Auslande, in idem, Rechtsgeschichte und Gegenwart: Gesammelte Schriften zur neueren Privatrechtsgeschichte und Rechtsvergleichung 40–41, 70 (Müller 1960) [hereinafter Schwarz, Rechtsgeschichte und Gegenwart]. For a brief discussion in English, cf. Raoul C. van Caenegem, An Historical Introduction to Private Law 148–150 (D.E.L. Johnston, trans.) (Cambridge University Press 1992).

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understanding of a (codified) national law. The book provides no guidance in this respect, nor does it drive the reader’s attention to the role of the system of the code. Not necessarily successful are the attempts of the authors to link some features of the Russian contract law to its codified character and to infer from coexistence of the code with one particular feature or another in a given legal system, that there is a causal relationship between the two. Let us take the most important example of this unfortunate approach. ‘Any codification of contract law limits freedom of contract to some extent. Courts applying the rules on contracts have a choice: to apply the Code provisions literally as a limitation means or to use legal mechanisms to broaden the freedom of the parties to choose contractual terms which suit their situation. Russian courts have tended to treat freedom of contract with suspicion and, as can be seen from this chapter, use every available method to limit freedom of contract as much as possible and often even go beyond the limits set out in the Civil Code itself’ (p. 75). ‘Compared to non-codified English law, parties are less free to choose the contractual terms they wish. Merely the existence of the Civil Code is, possibly, the primary reason for that. Civil Codes always contain a number of mandatory norms . . . that is, compulsory terms with which the parties must comply, whenever the particular conditions specified in the norm exist . . . Classification of contracts into types (such as purchase-sale, bank account, lease, etc.) is another substantial limitation imposed by the Civil Code. Even though parties are free to choose a contract of a type which is not described in the Code, courts are always tempted to regard a contract as belonging to one of the types listed in CC Part Two, thus imposing on the contract the application of the corresponding mandatory and dispositive norms, whatever the parties’ original intention . . . The division of contracts into types and the use of mandatory norms are two fundamental limitations of freedom of contract which shape Russian contract law’ (pp. 43–44) (emphasis added). As appears from the passages cited above, the bad thing about a civil code in regard to freedom of contract is that it fixes particular types of contracts and through that invites the judges to force every contract they see into one type or another, thus depriving the parties of their right to make a contract, different from those enlisted in the code. It might well be true that Russian judges tend to press all but every contract into a type fixed in the Code. This trend has been described and criticized in the literature,18 has triggered a reaction of the Supreme Commercial Court19 and has given an impetus 18

 Карапетов А.Г., Савельев А.И. Свобода договора и ее пределы Т. 2 [Karapetov A.G., Savel’ev A.I. Svoboda dogovora i ee predely. Т. 2 [Artyom G. Karapetov & Alexander I. Savel’ev, 2 Freedom of Contract and Its Limits]] 159–165 (Statut 2012) (without sufficient evidence though). The authors also hypothesize a connection between this trend and the idea of codification (pp. 159–160).

19

 Постановление Пленума ВАС РФ от 14 марта 2014 г. № 16 «О свободе договора и ее пределах» [Postanovlenie Plenuma VAS RF ot 14 marta 2014 g. No. 16 ‘O svobode dogovora i ee predelakh’ [Resolution of Plenum of the Supreme Commercial Court No. 16 of March 14, 2014, ‘On Freedom of Contract and Its Limits’]], ¶ 5.

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for drafting amendments to the Code.20, 21 It might, further, be true that similar trends are registered in other legal systems. Thus, on the occasion of the centenary of the Swiss Law on Obligations of originally 1883 Eugen Bucher speaks about „verkannte Typenfreiheit“ observing that the freedom to enter into a contract even if it doesn’t match any type fixed in the code has to a large extent remained unnoticed.22 His formula is, however, apt not only to confirm the suggestion that at least in some continental legal systems courts do tend to ignore the freedom to conclude so-called innominate contracts. It stresses at the same time that the reason of this development is not the code itself, but rather the misunderstanding of the code by judges and professors. The general notion of contract and accordingly the ‘law of contract’ instead of the ‘law of contracts’ originate from a number of sources that were effective in the Middle Ages and Modern Era and, different as they were, led to the same result that is to say getting over the Ancient Roman numerus clausus of the enforceable contract types.23 The general part of the law of obligations applicable to any obligation based on (any) contract, (any) delict or any other relevant set of facts was developed mainly by the representatives of the Law of reason and assimilated by the Pandectist school.24 All this made it possible for the civil codes throughout Europe to include general provisions on obligation and contract that is general parts of the law of obligations and the law of contract.25 Still they did not part with the good old contract types inherited from the Romans.26 It is therefore legitimate to speak about a certain ‘tension’ between the two parts of the codes with different pedigrees and different underlying principles.27 20

 Draft Federal Law on amendments to Parts One, Two, Three and Four of the Civil Code of the Russian Federation, and certain other legal acts of the Russian Federation No. 47538-6 approved by the State Duma at first reading on April 27, 2012, Art. 1(214) amending CC Art. 421(2). However, this block of the amendments has not become law yet.

21

 Efremova et al., supra n. 1, at 60.

22

 Eugen Bucher, Hundert Jahre schweizerisches Obligationenrecht: Wo stehen wir heute im Vertragsrecht? Referat für den Schweizerischen Juristenverein (1983), 102(2) Zeitschrift für schweizerisches Recht 316– 327 (1983), available at (accessed Mar. 13, 2015) [hereinafter Bucher, Hundert Jahre].

23

 Helmut Coing, 1 Europäisches Privatrecht: Älteres gemeines Recht (1500 bis 1800) 398–406 (C.H. Beck 1985); idem, 2 Europäisches Privatrecht: 19. Jahrhundert 434–438 (C.H. Beck 1989) [hereinafter Coing, 2 Europäisches Privatrecht]; Gordley, supra n. 6; idem, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment 14–31 (Oxford University Press 2006); Klaus-Peter Nanz, Die Entstehung des allgemeinen Vertragsbegriffs im 16. Bis 18. Jahrhundert (Schweitzer 1985); Bruno Schmidlin, Die beiden Vertragsmodelle des europäischen Zivilrechts: Das naturrechtliche Modell der Versprechensübertragung und das pandektistische Modell der vereinigten Willenserklärungen, in Rechtsgeschichte und Privatrechtsdogmatik (Reinhard Zimmermann et al., eds.) (C.F. Müller 1999); Zimmermann, supra n. 10, at 545–547.

24

 Andreas B. Schwarz, Zur Entstehung des modernen Pandektensystems, in Schwarz, Rechtsgeschichte und Gegenwart, supra n. 17; Franz Wieacker, Privatrechtsgeschichte der Neuzeit 238, 275–276, 373– 375 (2nd ed., Vandenhoeck & Ruprecht 1967).

25

 Coing, 2 Europäisches Privatrecht, supra n. 23, at 434.

26

 For a historical overview of the main codifications in this perspective, cf. Markus Stoffels, Gesetzlich nicht geregelte Schuldverträge: Rechtsfindung und Inhaltskontrolle 50–102 (Mohr Siebeck 2001).

27

 Bucher, Hundert Jahre, supra n. 22, at 318; idem, Schweizerisches Obligationenrecht: Allgemeiner Teil ohne Deliktsrecht 93 (2nd ed., Schulthess 1988); Stoffels, supra n. 26, at 101.

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In light of these developments, the codification can be seen as an invitation to rethink the role of contract types as fixed by the law, to come up with a new method of applying the rules set for each type, an invitation addressed to judges and academia. Yet, this invitation remains largely ignored.28 Hence the problems in the court practice and the search for a new method of application of the respective rules29 or a new role for them,30 hence even the criticisms of the contract types as such.31 Therefore, even if it is true to some extent that the contract types as fixed by the codes do cause methodological problems detrimental for the freedom of contract in certain respect, it is due not so much to the codes or to the idea of codification of private law, but quite to the contrary to the fact that the codes were misunderstood and accordingly were not able to overcome the older tradition.32 Moreover, there is another plausible explanation of the trend under discussion. It remains possible that the contractual scheme provided by the codes is well balanced and covers most of the contracts of real life, with the option to ‘mix’ the types kept in mind.33 * * * To sum up, as an introduction into the Russian contract law for a foreign lawyer the book is a success and a must-have for anyone trying to come to grips with the subject. For those lawyers with a common law background who are looking for an insight into the way a codified law works, it is perhaps not the best choice to study this book first. Information about the author Andrey Shirvindt (Moscow, Russia) – Assistant Professor at the Chair for Civil Law, Law Faculty, Lomonosov Moscow State University (1 Leninskie Gory, bldg. 13-14, Moscow, 119991, GSP-1, Russia; e-mail: [email protected]). The authors of the book also speak in this context about ‘tension,’ with slightly different accents though ‘[i]n Russian law, there is a tension between freedom of contract – one of the fundamental principles of modern Russian contract law – and the convenience of particular types of contract having their terms set by the Civil Code (CC)’ (p. 50). 28

 Bucher, Hundert Jahre, supra n. 22, at 318–319; Stoffels, supra n. 26, at 101–102.

29

 Bucher, Hundert Jahre, supra n. 22, at 319–327; Jürgen Oechsler, Vertragstypen, in J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen: Eckpfeiler des Zivilrechts. Neubearb. 2008 (Selier; De Gruyter 2008).

30

 Judith Rochfeld, Cause et type de contrat (LGDJ 1999); Stoffels, supra n. 26, at 103–111.

31

 Felix Dasser, Vertragsrecht ohne Vertragstypenrecht?, in Aktuelle Aspekte des Schuld- und Sachenrechts: Festschrift für Heinz Rey zum 60. Geburtstag (Schulthess 2003).

32

 The authors do obviously realize it themselves: ‘Draft Amendments to the Civil Code introduce a new provision which stipulates that norms for particular types of contract shall not be applicable to contracts which are not contracts of that type or mixed contracts. It can be argued that anyway this follows logically from the current text of the Code’ (p. 60) (emphasis added).

33

 Heinrich Honsell, 100 Jahre Schweizerisches Obligationenrecht, 130(2) Zeitschrift für schweizerisches Recht 20–21, 105 (2011); Dieter Medicus, Schuldrecht I: Allgemeiner Teil: Ein Studienbuch 29 (17th ed., C.H. Beck 2006).

CONFERENCE REVIEW NOTES

Economic Sanctions Overview Marian Dent, ANO Pericles (Moscow, Russia),

Oksana Yazykova, Citibank (Moscow, Russia),

Gandolfo Iacono, LexisNexis Russia (Moscow, Russia)

DOI: 10.17589/2309-8678-2015-3-1-181-183

The Sanctions Seminar held on November 19 was organized by LexisNexis Russia in cooperation with ANO Pericles. The Seminar theme was ‘Economic Sanctions Overview: Due Diligence and AML Procedures.’ In the course of the seminar, practicing lawyers, compliance and AML professionals had the opportunity to interact on the scope of USA and EU Sanctions and their impact on global business transaction, as well as get a better understanding of the due diligence procedures necessary in order to comply with a such complex environment. The opening session was presented by Marian Dent, American lawyer, professor and Dean of Pericles Law Center. Ms. Dent provided a full and explicit overview of the types of sanctions, their peculiarities and possible effect on the development of various countries from the academic point of view. In her speech, Ms. Dent provided a brief report on sanctions theory, namely she touched such topics as export controls, import bans and impending financial flows. Further review of sanction types enabled the audience to better understand differences between such sanctions as well as their impact on various sectors of economy. Ms. Dent spoke about current US and EU sanctions, their targets and compliance procedures, sanction lists, etc. Ms. Dent highlighted that the principle of ‘the mens rea,’ or mental state, required for convicting an individual or company of an OFAC (Office of Foreign Assets Control) sanctions violation is ‘knowingly violate or should have known of a violation.’ The term was introduced to the audience and it was specified that to avoid liability an entity subject to the jurisdiction of the United States has to have a compliance program in place that ensures ‘reasonable due diligence’ to avoid violations. An effective sanctions program has to target the particular risks, use a computerized

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database to check contracting partners and transactions, train personnel, and penalize personnel for non-compliance. The speaker pointed out that the cost of non-compliance can be extremely high in the US. She presented several examples of penalties for non-compliance issues and also identified differences between US and EU fines. Another important issue covered during this session was the 50% Rule. This rule concerns beneficial ownership and differs slightly depending on the jurisdiction. Ms. Dent presented a  detailed overview of differences between US and EU sanctions applied to Russia at the moment. She also paid special attention to sanctions imposed by other countries, such as Canada, Switzerland, Japan, and Australia. Closing remarks of Ms. Dent were devoted to assumptions regarding further development of EU and US sanctions against Russia. The second report, on the theme ‘Know Your Customer  – Monitoring Your Client and Working with Foreign Jurisdictions,’ was given by Oksana Yazykova, AML Compliance Head of Citibank. Ms. Yazykova clarified several issues of Russian legislative requirements applied to AML procedures, paid special attention to potential pitfalls when establishing beneficiary ownership, and provided several useful hints to the audience regarding client risk assessment. The speaker also described, in detail, procedures concerning collection and verification of documents for identifying customers, identifying public officials, establishing and identifying beneficial owners and beneficiaries, checking against negative lists and regulatory lists, assigning a risk level to the customers, and conducting enhanced due diligence in accordance with Russian law. Ms. Yazykova devoted part of her report to beneficial ownership identification. She stated that legislation of various countries requires disclosure of the beneficial owners of their clients. In this case one should pay attention to the differences in such requirements; for example, some laws require disclosing list of names only, while other legislation requires identification by means of verifying ID / passport data. The speaker listed publically available means that can be used for beneficial ownership identification that are accepted by the Russian regulator. Among them are charter documents of the company in question; official letters from the company signed by director, legal or treasury department, chief accountant and other authorized persons; financial statements or audit reports, extract from the register; the register of shareholders; databases (Spark, Dun & Bradstreet, LexisNexis, etc.); open reliable information sources (RBC, Forbes, Bloomberg, etc.); and reports issued by outsourced companies. Ms. Yazykova advised AML and compliance professionals to pay particular attention to the risk level assessment, as required by Russian law. The basic principles of risk level assessment are based on four main parameters: type of activity, products, general country risk, and involvement of politically exposed persons in the business activity. To identify potential risks one should also check companies and individuals against negative, regulatory and sanctions lists.

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The next report was given by Gandolfo Iacono, General Director of LexisNexis Russia and main organizer of the seminar. Mr. Iacono’s report was presented as an interactive business case with print shots of the Lexis Diligence program designed for simplification of due diligence procedures and improvement of search results. The topic of the business case was ‘Due Diligence: How to Monitor Your Clients, Partners and Third Parties.’ Mr. Iacono explored the topic of due diligence in more detail, using various examples from today’s business. The presentation included information about databases which are aggregated by Lexis Diligence, for example, 650 company data bases, which include company profiles and financial reports; biographical data on individuals; court cases; PEP-lists; black lists; sanction and watch lists. The speaker reviewed several options available for conducting due diligence, namely Simplified Due Diligence, Enhanced Due Diligence and Outsource. He spoke about the pros and cons of each method and highlighted the importance of due diligence for efficient development of business. Mr. Iacono conducted several searches with the help of Lexis Diligence and demonstrated how to make this complicated task simple, easy and accurate. Furthermore, Mr. Iacono touched on the issues concerning monitoring individuals and companies under sanctions. This has become topical for many businesses in various countries. He spoke in detail about resources and worldwide databases that allow one to receive relevant information automatically. The Speaker also provided the audience with vivid examples of investigations which have allowed huge corporations to protect significant money in the past. Such investigations were also performed with the help of Lexis Diligence. The seminar provided the audience with expert opinions on the current economic situation in light of the imposed sanctions. All speakers emphasized the importance of conducting accurate due diligence. The main advantages of comprehensive compliance procedures are mitigation of business risks and potential money loss, retaining a good reputation, and assuring constant business growth. Information about the authors Marian Dent (Moscow, Russia)  – Professor, Dean of Pericles Center for International Legal Education (22 1st Miusskaya str., bldg. 3, Moscow, 125047, Russia; e-mail: [email protected]). Oksana Yazykova (Moscow, Russia) – AML Compliance Head of Citi EMEA Cluster (CEE, CIS, and Turkey) (6 Gashek str., Moscow, 125047, Russia; email: oksana. [email protected]). Gandolfo Iacono (Moscow, Russia) – General Director of LexisNexis Russia (24/1 Bolshaya Nikitskaya str., bldg. 5, Moscow, 125009, Russia; e-mail: gandolfo.iacono@ lexisnexis.nl).

Volume III (2015) Issue 1

Редактор Павел Савкин Оформление и компьютерная верстка: Виола Самойлова

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