CYIL vol. 14 (2023)

CYIL 14 (2023) ESTABLISHMENT OF THE REGISTER OF DAMAGE AS A RESPONSE OF THE COUNCIL … the financing and budget 65 , the confidentiality of the received information on claims and damage 66 , the possibility to approve derogations from the Council of Europe Rules and Regulations 67 , the amendments to the Statute 68 , the settlement of disputes 69 and withdrawal and expulsion of Participants or Associate Members 70 . The last provision was drafted with the relatively fresh experience with the expulsion of the Russian Federation from the Council of Europe in mind. Finally, there is a provision on transfer, succession and termination of the Register of Damage that cannot be classified as merely “technical”, because it deals with the key question what happens next, i.e., when most of the claims are duly registered. This provision is based on a presumption that, in the future, there will be a Compensation Mechanism, defined as “a future international compensation mechanism to be established by a separate international instrument in co-operation with Ukraine.” 71 What is meant here is an institution comparable to the Iran-United States Claims Tribunal or the United Nations Claims Commission (established following the Iraqi aggression against Kuwait). Once the Compensation Mechanism is established, the work of the Register shall be transferred to such Mechanism, including its digital platform, all information about claims and evidence etc. 72 The States establishing the EPA on the Register of Damage agreed in the Resolution “to continue working…towards the establishment by a separate international instrument of a future international compensation mechanism, which may include a claims commission and a compensation fund” 73 . Similar language made it to the Reykjavík Declaration 74 , however, it should be noted that these States have not accepted the obligation to create such Mechanism. 5. Conclusion and What Next The EPA establishing the Register of Damage may not be a legally perfect document, nevertheless, given the time constraints, it is not an outcome that the Council of Europe (and particularly the GR-J) should be ashamed of. In this context, it can be concluded that this organization passed the “stress test” of the Russian aggression against Ukraine with honor. The primary task for the Council of Europe, as well as for the Participants and Associated Members of the Register of Damage, is now to transform the words on paper into a fully functioning institution, both in The Hague and Kyiv. And even if this uneasy task is finished, the success of the Register of Damage will not be judged upon the results of its work, but rather on what will happen afterwards. In the near future, the answers to the following questions

65 Ibid. , Art. 10. 66 Ibid. , Art. 11. 67 Ibid. , Art. 12. 68 Ibid. , Art. 13. 69 Ibid. , Art. 15. 70 Ibid. , Art. 16. 71 Ibid. , Art. 2.5. 72 Ibid. , Art. 14.1. 73 Ibid., the Resolution.

74 See supra 13, p. 4: “We acknowledge that the Register is intended to constitute the first component of a future international comprehensive compensation mechanism and express willingness to engage with the international community in further developing such a mechanism to be established by a separate international instrument, which may include a claims commission and compensation fund, while emphasising the obligation for the Russian Federation to pay for the damages caused by this war of aggression.”

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