CYIL vol. 14 (2023)

PETR VÁLEK CYIL 14 (2023) would increase its legitimacy. This was confirmed at the global level by the UNGA resolution from November 14, 2022, on “Furtherance of remedy and reparation for aggression against Ukraine” (hereinafter, the “UNGA Resolution”), that, inter alia , recognized “the need for the establishment, in cooperation with Ukraine, of an international mechanism for reparation for damage, loss or injury, and arising from the internationally wrongful acts of the Russian Federation in or against Ukraine” and recommended to the UN member States the creation of such register 15 . With regard to the register of damage, the Council of Europe chose to be more involved than with the ad hoc tribunal for the crime of aggression. At the beginning, the CMD, in the above-mentioned decisions from September 15, 2022, also just “noted with interest the Ukrainian proposals to establish…a comprehensive compensation mechanism, including, as a first step, an international register of damage” 16 . Subsequently, however, a positive approach to this proposal was taken by the Secretary-General of the Council of Europe, as evidenced by her Information Documents from January 31, 2023. 17 The CMD then, by its decisions of February 24, 2023, “recognised the urgent need for a register to record and document evidence and claims for damage, loss or injury as a result of Russian aggression against Ukraine and invited the Secretary General to present modalities“ 18 . While the initial idea of the Ukrainian side was to establish the register of damage as a new international organization by a treaty concluded by interested States, the Council of Europe Secretariat came up with the suggestion to form the register as an organ within this international organization on the legal basis of an enlarged partial agreement (hereinafter, the “EPA”). This option seemed to be preferable, because it could be finalized relatively fast – the EPAs usually do not require lengthy ratification procedure in member States. And the time factor was essential at this stage, as the Reykjavík Summit – to be held from May 16 to 17 - was quickly approaching. Therefore, the CMD took a decision on March 29, 2023, through which “[t]he Deputies invited the Secretary General to submit the draft Resolution establishing the Register of Damage and the related draft Statute of the Register as soon as possible and charged their Rapporteur Group on Legal Co-operation (GR-J) with examining these drafts and to report back at the latest by 30 April 2023.” 19 The Secretariat of the Council of Europe started to work, together with Ukraine, on the “Draft Resolution establishing the EPA on the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine” containing in Appendix the Statute of the Register. In this work, they relied on the already existing EPAs and the Rules and Regulations of the United Nations Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory 20 (hereinafter, the “UNRoD”) established by the UNGA resolution 15 The UNGA Resolution A/RES/ES-11/5, adopted on November 14, 2022, Furtherance of remedy and reparation for aggression against Ukraine, operative para. 3. 16 See supra note 11. 17 Information Documents, SG/Inf(2023)7, dated January 31, 2023, Accountability for human rights violations as a result of the aggression of the Russian Federation against Ukraine: role of the international Community, including the Council of Europe, pp. 7–9. 18 The CMD Decisions CM/Del/Dec(2023)1457bis/2.3, adopted on February 24, 2023, Consequences of the aggression of the Russian Federation against Ukraine. 19 The CMD Decision CM/Del/Dec(2023)1461/2.3, adopted on March 29, 2023. 20 The Rules and Regulations can be found at the website of the UNRoD: https://www.unrod.org/docs/Rules.pdf

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