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Here’s why Ukraine is suing Russia in the International Court of Justice

Ukraine’s case in the ICJ looks like a device to avoid paying the likely High Court Judgment for payment of the $3 billion debt Ukraine owes Russia.

Alexander Mercouris

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The case Ukraine is bringing in the International Court of Justice is attracting scant international attention and has been almost entirely ignored by Western governments and by the Western media.  Having said this it is an interesting case which begs a number of obvious questions.

Ukraine’s claim is set out in an indictment which apparently runs to 45 pages.  The summary of its claim, which is dated 17th January 2017, can be found here.

Essentially Ukraine is demanding compensation from Russia for the damage it says Russia has done to Ukraine through its aggression in eastern Ukraine and because of the harm Ukraine alleges Russia is doing to the Ukrainian and Tatar minorities in Crimea.

Two questions about this case immediately stand out: (1) its timing; and (2) why does it fail to ask that the International Court of Justice declare that Crimea’s unification with Russia is contrary to international law?

(1) Timing of the Case

The case was brought on 16th January 2017, three years after the Maidan coup, three years after Ukraine and Russia found themselves in conflict with each other, and almost three years after Crimea seceded from Ukraine and united with Russia and eastern Ukraine rose up against the new Maidan government in Kiev.

Why has this case been brought only now?

There is in fact an obvious answer to this question.  In January 2017, when this case was brought, the High Court in London finished hearing Russia’s application for summary Judgment in the case Russia has brought against Ukraine for payment of the $3 billion eurobond debt Ukraine owes Russia.  A decision is expected in April.

Ukraine’s defence in this case is that it does not owe Russia any money because of the amount of the $3 billion debt has been extinguished by the far greater amount Ukraine says Russia owes Ukraine arising from the damage Russia did to Ukraine as a result of its aggression in eastern Ukraine.

I have always said that I believe that the High Court is likely to rule that it has no jurisdiction to hear this defence to the Russian claim.  Way back on 21st April 2015, long before the case was brought, I explained why I thought this defence was unlikely to succeed

The debt is not repayable because Russia has made its repayment impossible by committing military aggression against Ukraine

Russia categorically denies it is committing aggression against Ukraine.

The Russians would undoubtedly argue that the question of whether or not Russia is committing aggression against Ukraine has been answered in their favour by Ukraine’s signature to the Minsk Memorandum. This treats the Ukrainian conflict as a civil war and commits Ukraine to a process for its settlement.

The High Court would anyway almost certainly refuse to look at this question. It would probably again say this a matter for the International Court of Justice. It is anyway doubtful even if Ukraine could persuade the High Court that Russia had committed aggression against Ukraine that this cancels Ukraine’s whole debt.

(bold italics added)

It seems to me that what has happened is that Ukraine’s lawyers have now given Ukraine the same advice.

They must have told Ukraine that Ukraine is likely to lose the case in the High Court because the High Court will almost certainly say it has no jurisdiction to hear Ukraine’s defence since the question of whether Ukraine is entitled to compensation from Russia because of Russia’s alleged aggression against Ukraine is not an issue the High Court in London is able to decide.  The High Court will almost certainly say this is a matter for the International Court of Justice.

Ukraine has therefore brought its claim in the International Court of Justice in order to pre-empt what looks like a Judgment against it in the High Court.

Possibly Ukraine is hoping to persuade the High Court to stay enforcement of its Judgment until after the International Court of Justice has made its decision.  If so then it is unlikely to succeed.  The High Court is most unlikely to order a stay of one of its Judgment for payment of a debt until another court makes a ruling on an entirely different matter.

More likely Ukraine is hoping to persuade the IMF – with which it is currently negotiating for further funding, and whose Board is due to review its lending to Ukraine on 20th March 2017 – to disregard any Judgment the High Court makes which declares Ukraine in default of its debt to Russia on the grounds that the question of whether Ukraine owes money to Russia will not be finally decided until the International Court of Justice makes its decision.

Russia is a member of the exclusive Paris Club of creditors.  The IMF is supposed to stop all lending to Ukraine if the High Court declares Ukraine is in default of its debt to a member of the Paris Club.  Presumably Ukraine is hoping that the IMF, which has already relaxed this rule, will set it aside completely in Ukraine’s favour on the basis that the question of whether Ukraine owes money to Russia will not be finally decided until the International Court of Justice makes its decision.

If this is the argument Ukraine intends to make to the IMF (which I suspect it is) then legally speaking it is desperate.

Even if Ukraine wins its case against Russia in the International Court of Justice, any compensation it is awarded cannot be enforced against Russia through the ordinary courts.  It would be entirely up to Russia to decide whether or not to pay it.  Russia would almost certainly refuse to pay it.

By contrast since the claim Russia is bringing against Ukraine in the High Court is for payment of a eurobond (which is a promissory note) any Judgment Russia obtains against Ukraine can be enforced immediately.

There are therefore no logical or legal grounds for the IMF to say that Ukraine is not in default to Russia if the High Court says it is, simply because Ukraine is bringing a case against Russia in the International Court of Justice.

At this point however a word of caution is in order.  Since the IMF has been lending to Ukraine for essentially political reasons all along, a cynic might say it will accept whatever argument Ukraine makes however legally dubious or threadbare it might be so that it can continue lending to Ukraine irrespective of what it’s own rules say.

All I would say about that is that that may indeed happen but if it does then legally speaking we are in unknown territory, with the Russians quite possibly in that case seeking to enforce their Judgment by taking legal action in the US and European commercial courts to seize Ukraine’s IMF bailout funds.  That would be an extraordinary and unprecedented situation, and I do not know what the eventual outcome or the long term repercussions would be, and I doubt anyone else does either.  However I suspect the long term repercussions would be huge, and I also suspect that there are people within the IMF’s bureaucracy who think the same and who will if only for that reason be counselling against it.

The High Court is expected to decide whether or not to grant Russia’s application for summary Judgment in April.  The stakes could not be higher.  That makes it understandable why Ukraine has brought its case in the International Court of Justice now, however desperate legally speaking that course might be.

(2) Crimea

Putting aside these highly technical (though potentially very important) issues,  the single most striking omission in the case is that though Ukraine repeatedly refers in its claim to Crimea’s unification with Russia as an ‘illegal occupation’, and claims compensation for the alleged ‘discrimination’ and ‘oppression’ by Russia of Ukrainian and Crimean Tatar minorities in Crimea, it does not actually seek a declaration from the International Court that the unification of Crimea with Russia is contrary to international law.

The reason Ukraine has failed to do this is because its lawyers have undoubtedly advised it that if it were to seek such a declaration the International Court of Justice would refuse to grant it.

This is because the International Court of Justice in its Advisory Opinion on Kosovo has previously ruled that a declaration of independence made by the people of a territory declaring themselves independent of a country to which that territory belongs are not acting contrary to international law even if their action is made unilaterally, is backed by the use of force (including outside force), and is contrary to the constitutional arrangements and laws of the country from which they are declaring themselves independent.

The Western powers lobbied the International Court of Justice hard to obtain the Advisory Opinion on Kosovo.  When they obtained it they hailed it as a famous victory.  Since then they have come to regret it bitterly, and since Crimea cited it in its unilateral declaration of independence from Ukraine they have completely stopped talking about it.

The Russians by contrast talk about the Advisory Opinion on Kosovo whenever the subject of the alleged ‘illegality’ of Crimea’s unification with Russia is brought up.  President Putin was the first to do so in the speech he made immediately following Crimea’s unification with Russia on 18th March 2014

As it declared independence and decided to hold a referendum, the Supreme Council of Crimea referred to the United Nations Charter, which speaks of the right of nations to self-determination. Incidentally, I would like to remind you that when Ukraine seceded from the USSR it did exactly the same thing, almost word for word. Ukraine used this right, yet the residents of Crimea are denied it. Why is that?

Moreover, the Crimean authorities referred to the well-known Kosovo precedent – a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate and did not require any permission from the country’s central authorities. Pursuant to Article 2, Chapter 1 of the United Nations Charter, the UN International Court agreed with this approach and made the following comment in its ruling of July 22, 2010, and I quote: “No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence,” and “General international law contains no prohibition on declarations of independence.” Crystal clear, as they say.

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States of America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agreed and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

(bold italics added)

By failing to ask the International Court of Justice to declare Crimea’s secession from Ukraine and subsequent union with Russia to be contrary to international law Ukraine appears to be conceding the point.  Though Ukraine and its Western allies will doubtless go on calling Crimea’s secession from Ukraine ‘illegal’, in terms of international law there are actually no grounds to do so.  Ukraine’s conduct of its case in the International Court of Justice effectively admits as much.

As to the eventual outcome of the case, I am not an expert in this field.  I understand the Russians are denying that the International Court of Justice has the jurisdiction to hear the case.   I suspect they are right and that the International Court of Justice will agree with them.

Even if it doesn’t and even if the case goes to a full hearing – which may take years – I doubt Ukraine will be able to prove many of the claims it is making, or that it will achieve much or indeed anything in the end by bringing the case.  The stony silence of Western governments and of the Western media about the case all but says as much.

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Vladimir Putin calls new Ukrainian church ‘dangerous politicking’

President Putin said creation of the “Orthodox Church in Ukraine” is against Church canon and that the West drove Constantinople to do it.

Seraphim Hanisch

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In an interview with the Serbian newspapers Politika and Vecernje Novosti ahead of his visit to Serbia, Russian President Vladimir Putin noted the creation of the “Orthodox Church of Ukraine”, a schismatic agglomeration headed by Ukrainian ultra-nationalists was “dangerous politicking.” He further noted that:

The establishment of the new religious entity in Ukraine is nothing but an attempt “to legalize the schismatic communities that exist in Ukraine under the jurisdiction of Istanbul, which is a major violation of Orthodox canons.”

“Yet, hardly anyone in the U.S. or in the Ukrainian leadership worries about this,” Putin said.

“Once again, this has nothing to do with spiritual life; we are dealing here with dangerous and irresponsible politicking,” he said.

President Putin had more things to say in the interview, and we present what he said in full here (emphasis ours), as reported on the Kremlin.ru website:

Question: The Serbian Orthodox Church has taken the side of the Russian Orthodox Church in the context of the ecclesiastical crisis in Ukraine. At the same time, a number of countries are exerting pressure on Patriarch Bartholomew and seek to ensure recognition of Ukrainian ”schismatics“ by Local Orthodox Churches. How do you think the situation will evolve?

Vladimir Putin: I would like to remind your readers, who are greatly concerned about the information regarding the split in the Orthodox community but are probably not fully aware of the situation in Ukraine, what it is all about.

On December 15, 2018, the Ukrainian leaders, actively supported by the USA and the Constantinople Patriarchate, held a so-called “unifying synod”. This synod declared the creation of the Orthodox Church of Ukraine, with Patriarch Bartholomew signing the tomos (decree) granting it autocephaly on January 6, 2019. Thus, it was attempted to legalize the schismatic communities that exist in Ukraine under the jurisdiction of Istanbul, which is a major violation of Orthodox canons.

Yet, hardly anyone in the US or in the Ukrainian leadership worries about this, as the new church entity is an entirely political, secular project. Its main aim is to divide the peoples of Russia and Ukraine, sowing seeds of ethnic as well as religious discord. No wonder Kiev has already declared ”obtaining complete independence from Moscow.”

Once again, this has nothing to do with spiritual life; we are dealing here with dangerous and irresponsible politicking. Likewise, we do not speak about the independence of the Orthodox Church of Ukraine. It is de-facto fully controlled by Istanbul. Whereas Ukraine’s largest canonical Ukrainian Orthodox Church, which has never requested autocephaly from Patriarch Bartholomew, is absolutely independent in its actions. Its connection with the Russian Orthodox Church is purely canonical – but even this causes undisguised irritation of the current Kiev regime.

Because of this, clergymen and laymen of the Ukrainian Orthodox Church are being persecuted and deprived of churches and monasteries, and attempts are made to deny the Church its legitimate name, which raises tensions and only leads to further discord in Ukrainian society.

Evidently, Ukraine’s leaders have to understand that any attempts to force the faithful into a different church are fraught with grave consequences. Yet, they are eager to put interconfessional concord in the country at stake in order to conduct the election campaign of the current Ukrainian President based on a search for enemies, and to retain power by all means.

All of this does not go unnoticed by Orthodox Christians.

Naturally, Russia does not intend to interfere in ecclesiastical processes, especially those happening on the territory of a neighboring sovereign state. However, we are aware of the danger posed by such experiments and blatant interference of the state in religious affairs.

The situation continues to degrade in Ukraine, and though the Orthodox faithful of the Autonomous but Moscow-based Ukrainian Orthodox Church are the hardest hit, worry over Ukrainian lawlessless-made-law has the Jewish community in that country nervous as well. This is perhaps to be expected as the Azov Brigade, a neo-Nazi aligned group that is hypernationalist, is a good representation of the character of the “hate Russia at all costs” Ukrainian nationalists. A parallel piece in Interfax made note of this in a piece dated January 17th 2019:

[A] bill passed by the Verkhovna Rada introducing a procedure by which parishes can join the new Ukrainian church makes it easier to seize places of worship, and supporters of autocephaly have already started doing this across the country, the Ukrainian Orthodox Church said.

“They need this law to seize our churches. You can’t just come with a crowbar to someone else’s barn, but now the law allows you to do so. They aren’t creating something of their own, but are trying to steal what’s ours,” Ukrainian Orthodox Church spokesperson Vasyl Anisimov told Interfax on Thursday.

The religious entity set up in December with Constantinople’s involvement and called the Orthodox Church of Ukraine “in fact doesn’t yet exist in nature. It’s fake. It doesn’t have any parishes of its own or government registration,” he said.

However, “the supporters of autocephaly don’t have plans to create anything of their own at all, so they have chosen the path of takeover, and the authorities are helping them in that,” Anisimov said.

“Hence, the legislation passed by the Verkhovna Rada today is in fact absolute lawlessness,” he said.

“If you pass legislation affecting an industry, you should talk to industrialists, and if it’s legislation on the agricultural sector, talk to farmers. And here legislation on a church is passed, and moreover, this legislation is aimed against this church, it is protesting, and Jews are protesting, too, because this legislation may affect them as well – but nobody is listening, and they change the law for the sake of an absolutely absurd and unconstitutional gimmick. But, of course, it’s the people who will ultimately suffer,” Anisimov said.

 

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May survives ‘no confidence’ vote as UK moves towards March 29 deadline or Article 50 extension (Video)

The Duran – News in Review – Episode 168.

Alex Christoforou

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The Duran’s Alex Christoforou and Editor-in-Chief Alexander Mercouris discuss the ‘no confidence’ vote that UK Prime Minister May won with the a slim margin…meaning that though few MPs have confidence in her ‘Brexit withdrawal’ negotiating skills, they appear to have no problem allowing May to lead the country towards its Brexit deadline in March, which coincidently may be delayed and eventually scrapped altogether.

Meanwhile Tony Blair is cozying up to Brussels’ oligarchs, working his evil magic to derail the will of the British people, and keep the integrationist ambitions for the UK and Europe on track.

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Via RT


The UK government led by Theresa May, has survived to fight another day, after winning a no-confidence vote, tabled by Jeremy Corbyn’s Labour Party, following parliament rejecting the PM’s Brexit deal, earlier on Tuesday evening.

The no-confidence vote was defeated by 19 votes – the government winning by 325 to 306. It’s a rare positive note for May’s Tory cabinet after the humiliating Brexit defeat.

Speaking immediately after the vote, a victorious May said she was “pleased” that the House expressed its confidence in her government. May said she will “continue to work” to deliver on the result of the Brexit referendum and leave the EU.

May invited the leaders of parliamentary parties to meet with her individually, beginning on Wednesday evening.

“I stand ready to work with any member of this House to deliver on Brexit,” she said.

Responding to the vote, Labour leader Jeremy Corbyn said that the House had “emphatically” rejected May’s deal on Tuesday. The government, he said, must now remove “clearly once and for all the prospect of the catastrophe of a no-deal Brexit from the EU and all the chaos that would result from that.”

Labour will now have to consider what move to make next. Their official Brexit policy, decided by members at conference in September, states that if a general election cannot be forced, then all options should be left on the table, including calling for a second referendum.

Liberal Democrats MP Ed Davey also called on May to rule out a no deal Brexit.

The way forward for Brexit is not yet clear and May’s options are now limited, given that the Brexit deal she was offering was voted down so dramatically on Tuesday.

Gavin Barrett, a professor at the UCD Sutherland School of Law in Dublin, told RT that May will now have to decide if her second preference is a no-deal Brexit or a second referendum. Her preference will likely be a no-deal Brexit, Barrett said, adding that “since no other option commands a majority in the House” a no-deal exit is now “the default option.”

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Final Steps in Syria’s Successful Struggle for Peace and Sovereignty

The war of aggression against Syria is winding up, and this can be observed by the opening of a series of new embassies in Damascus.

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Authored by Federico Pieraccini via The Strategic Culture Foundation:


The situation in Syria evolves daily and sees two situations very closely linked to each other, with the US withdrawal from Syria and the consequent expansionist ambitions of Erdogan in Syria and the Hay’at Tahrir al-Sham (HTS) takeover in Idlib that frees the Syrian Arab Army (SAA) and Russian aviation to liberate the de-escalation zone.

Trump has promised to destroy Turkey economically if he attacks the Kurds, reinforcing his claim that Erdogan will not target the Syrian Democratic Forces (SDF) once the US withdraws from the area. One of the strongest accusations made against Trump’s withdrawal by his opponents is that no Middle Eastern force will ever trust the US again if they abandon the SDF to its fate, that is, to its annihilation at the hands of the Turkish army and its FSA proxies. This, however, is not possible; not so much because of Trump’s economic threats, but because of Damascus and Moscow being strongly opposed to any Turkish military action in the northeast of Syria.

This is a red line drawn by Putin and Assad, and the Turkish president likely understands the consequences of any wrong moves. It is no coincidence that he stated several times that he had no problems with the “Syrians or Syrian-Kurdish brothers”, and repeated that if the area under the SDF were to come under the control of Damascus, Turkey would have no need to intervene in Syria. Trump’s request that Ankara have a buffer zone of 20 kilometers separating the Kurdish and Turkish forces seems to complement the desire of Damascus and Moscow to avoid a clash between the Turkish Armed Forces (TAF) and the SDF.

The only party that seems to be secretly encouraging a clash between the SDF and Turkish forces is Israel, criticizing Ankara and singing the praises of the SDF, in order to try and accentuate the tensions between the two sides, though naturally without success. Israel’s continued raids in Syria, though almost constantly failing due to Syrian air defense, and the divide-and-rule policy used against Turkey and the SDF, show that Tel Aviv is now weakened and mostly irrelevant in the Syrian conflict.

In Idlib, the situation seems to be becoming less complicated and difficult to decipher. Russia, Iran and Syria had asked Erdogan to take control of the province through its “moderate jihadists”, sit down at the negotiating table, and resolve the matter through a diplomatic solution. Exactly the opposite happened. The HTS (formerly al-Nusra/al-Qaeda in Syria) has in recent weeks conquered practically the whole province of Idlib, with numerous forces linked to Turkey (Ahrar al-Sham and Nour al-Din al-Zenki) dissolving and merging into HTS. This development puts even more pressure on Erdogan, who is likely to see his influence in Idlib fade away permanently. Moreover, this evolution represents a unique opportunity for Damascus and Moscow to start operations in Idlib with the genuine justification of combating terrorism. It is a repeat of what happened in other de-escalation areas. Moscow and Damascus have repeatedly requested the moderates be separated from the terrorists, so as to approach the situation with a diplomatic negotiation.

In the absence of an effective division of combatants, all are considered terrorists, with the military option replacing the diplomatic. This remains the only feasible option to free the area from terrorists who are not willing to give back territory to the legitimate government in Damascus and are keeping civilians hostages. The Idlib province seems to have experienced the same playbook applied in other de-escalation zones, this time with a clear contrast between Turkey and Saudi Arabia that shows how the struggle between the two countries is much deeper than it appears. The reasons behind the Khashoggi case and the diplomatic confrontation between Qatar and Saudi Arabia were laid bare in the actions of the HTS in Idlib, which has taken control of all the areas previously held by Ankara’s proxies.

It remains to be seen whether Moscow and Damascus would like to encourage Erdogan to recover Idlib through its proxies, trying to encourage jihadists to fight each other as much as possible in order to lighten the task of the SAA, or whether they would prefer to press the advantage themselves and attack while the terrorist front is experiencing internal confusion.

In terms of occupied territory and accounts to be settled, two areas of great importance for the future of Syria remain unresolved, namely al-Tanf, occupied by US forces on the Syrian-Jordanian border, and the area in the north of Syria occupied by Turkish forces and their FSA proxies. It is too early to approach a solution militarily, it being easier for Damascus and Moscow to complete the work to free Syria from the remaining terrorists. Once this has been done, the presence of US or Turkish forces in Syria, whether directly or indirectly, would become all the more difficult to justify. Driving away the US and, above all, Turkey from Syrian territory will be the natural next step in the Syrian conflict.

This is an unequivocal sign that the war of aggression against Syria is winding up, and this can be observed by the opening of a series of new embassies in Damascus. Several countries — including Italy in the near future — will reopen their embassies in Syria to demonstrate that the war, even if not completely over, is effectively won by Damascus and her allies.

For this reason, several countries that were previously opposed to Damascus, like the United Arab Emirates, are understood to have some kind of contact with the government of Damascus. If they intend to become involved in the reconstruction process and any future investment, they will quite naturally need to re-establish diplomatic relations with Damascus. The Arab League is also looking to welcome Syria back into the fold.

Such are signs that Syria is returning to normality, without forgetting which and how many countries have conspired and acted directly against the Syrians for over seven years. An invitation to the Arab League or some embassy being reopened will not be enough to compensate for the damage done over years, but Assad does not preclude any option, and is in the meantime demonstrating to the Israelis, Saudis and the US Deep State that their war has failed and that even their most loyal allies are resuming diplomatic relations with Damascus, a double whammy against the neocons, Wahhabis and Zionists.

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