How Ukraine can get back Crimea and regain control of the Donbas is the subject of a new book, "Aggression against Ukraine: Territory, Responsibility and International Law," to be released on June 17.
The author of the book, Thomas D. Grant,
is a professor at the Cambridge University. He has
served as legal adviser to governments, international organizations and
corporate clients on numerous cases, including proceedings before the
International Court of Justice on maritime disputes, investment and commercial
arbitrations.
Grant says a range of
different options has to be weighed by Ukraine.
Economic sanctions
against Russia should definitely remain part of the mix.
“The
majority of the United Nations General Assembly, which represents more than 80
percent of economic output, has joined the collective non-recognition of
Russia’s acquisition of Crimea,” Grant said.
The sanctions make investment in Crimea via
Moscow unattractive because any profit could be seized in courts in one of the
sanctioning countries.
Meantime, Ukraine’s bilateral investment
treaties could target those countries, such as China, which did not impose any
sanctions against Russia. At the least, Ukraine should examine China’s
obligations under the bilateral investment treaty.
The three complaints that Ukraine lodged
against Russia in the European Court of Human Rights also make sense as part of
a broader strategy.
“Obviously, the European Court is an “A”
place to go. However, what Ukraine needs to do is to identify every possible
legal mechanism that might help,” Grant said.
The European Court of Human Rights
awarded Cyprus $124 million for Turkey’s occupation of the northern part of the
island in 1974. Turkey remains there and hasn’t paid. The Security Council
successfully imposed financial penalties on Iraq’s invasion of Kuwait in 1990.
Russia will likely ignore any decision
but, over time, the adverse judgments may work. The rulings could also expose
Russian state-owned Gazprom and other publicly traded companies to arbitration
worldwide.
The cover of the Thomas Grant’s book “Aggression against Ukraine: Territory, Responsibility and International Law,” to be released on June 17.
Drawing the southern borders of the Black
Sea at the International Court of Justice is another avenue for obtaining an
adverse judgment against Russia.
In 2009, the International Court of
Justice established the single maritime boundary delimiting the continental
shelf and exclusive economic zones of Romania and Ukraine. However, it did not
complete the demarcation.
“The only difficulty is to bring your
neighbors – Romania and Bulgaria – to the negotiations table,” Grant said.
If Ukraine succeeds, Russia will either
ask to join the proceedings as the alleged owner of Crimea or lose.
“I’d say that at the very least the court
will have a major headache but … what you will end up with is a jurisdictional
decision, which by implication reaffirms that Crimea is Ukraine,” Grant
believes.
Under the doctrine established by the
European Court in Cyprus v. Turkey, Ukrainian courts also have jurisdiction in
Crimea, making investment on the peninsula very risky.
After Northern Cyprus was invaded by
Turkey in 1974, lots of property was taken from Greek Cypriots and given to
foreign investors. In return, Greek Cypriots went to Southern Cypriot courts
that entered judgments against foreign businesses operating in Northern Cyprus.
According to Grant, “some investors have
been very badly surprised when they paid very large money damages to Greek
property owners under Southern Cypriot courts’ decisions in Frankfurt, Amsterdam,
London and other courts.”
Even the judgments Russia will ignore are
going to last and in time become a serious irritant to Russia’s foreign policy.
Kyiv
Post legal affairs reporter Mariana Antonovych can be reached at
[email protected]
