CYIL vol. 14 (2023)

CYIL 14 (2023) ESTABLISHMENT OF THE REGISTER OF DAMAGE AS A RESPONSE OF THE COUNCIL … rules and regulations of the Register of Damage, bearing in mind the following three basic elements coming from the mandate: damage was caused “a. on or after 24 February 2022; b. in the territory of Ukraine…; c. by the Russian Federation’s internationally wrongful acts in or against Ukraine.” 44 While certain States wished that the eligibility criteria in the Statute are specified in a more concrete way, e.g., as in the Rules and Regulations of the UNRoD 45 , there was more preference at the end to keep this general provision. The legal status of the Register is a result of a compromise. While the Ukrainian delegation initially preferred to create the Register of Damage as a new international organization, it was clear that this would not fit with the 1993 Statutory Resolution covering “activities within the framework of the Organization” 46 . Furthermore, the establishment of an international organization would also trigger the lengthy ratification processes in the member States involving the Parliamentary approval. Therefore, in line with the previous EPAs, it was agreed that the Register of Damage shall be established “as a platform for intergovernmental co-operation, acting within the institutional framework of the Council of Europe” 47 , i.e., “only” as an organ of this organization. In addition, this solution enables the Register and its officials to benefit from the General Agreement on Privileges and Immunities of the Council of Europe. 48 Nevertheless, for the exercise of its functions, the Register of Damage was granted the “juridical personality under the national law of the Kingdom of the Netherlands and of Ukraine” 49 . This limited legal personality should make it easier for the Register of Damage to conduct the day-to-day business, such as entering into contracts for the purchase of necessary equipment etc. As a part of this compromise, it was also allowed “to enter into arrangements with States and international organisations” 50 with the understanding that does not mean concluding treaties. As a result of this, the Host State Agreement with the Netherlands will have to be concluded by the Council of Europe (and not by the Register of Damage itself). In this context, it should be recalled that, thanks to the generous offer of the Netherlands, the provision putting the seat of the Register of Damage to The Hague – the “Capital of international law” – did not need to be further discussed. The same applies to “a satellite office” in Ukraine, as this would facilitate contact with potential claimants. 51 It is estimated that there will be approximately 30 staff members of the Register of Damage working in The Hague and another 9 in Ukraine. Perhaps the most complex provision is the one on participation that has no precedent in other EPAs. As proposed by Ukraine, only those States that voted for the UNGA Resolution may become the Participants in the Register of Damage from the start. Although legally it is quite unconventional to connect the status of a participant in an EPA with voting in the UN, from the political point of view it can be understood. Furthermore, the “door is open” for those States who abstained or voted against the UNGA Resolution, if they wish to join

44 Ibid. 45 See supra 20, Art. 11. 46 See supra 29, Part II. 47 See supra 24, Art. 1.2. 48 Ibid. , Art. 3.5. 49 Ibid. , Art. 3.1. 50 Ibid. , Art. 3.2. 51 Ibid. , Art. 3.3. and 3.4.

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