Termination of Existence of Russia and Mechanisms of International Responsibility

The desire to see the Russian Federation disappear from the political map of the world is common not only to citizens of Ukraine, but also to residents of other states that have been subjected to Russian military aggression.

More and more historians, experts and public and political figures [1-3] claim that the collapse of Russia is not a utopia, but a very possible option for the development of modern events. However, in addition to the undeniable benefits for the entire civilized society, the disintegration of Russia may also bring specific challenges, for example, if it becomes part of the scenario planned by Kremlin ideologues.

Associate professor Andriy Chvalyuk made a forecast of the consequences of Russia’s termination of its existence specifically for Association of Reintegration of Crimea.

On February 23, 2023, the Law of Ukraine “On compensation for damage and destruction of certain categories of immovable property as a result of hostilities, acts of terrorism, sabotage caused by armed aggression of the Russian Federation against Ukraine, and the State Register of property damaged and destroyed as a result of hostilities, terrorist acts, sabotage caused by the armed aggression of the Russian Federation against Ukraine” was adopted [4]. Article 13 of this Law stipulates that the sources of financing compensation for damaged and destroyed real estate objects are reparations or other recoveries from Russia.

In international law, reparation is one of the forms of material responsibility of a subject of international law for damage caused as a result of an offense committed by him to another subject of international law and consists in providing the state that suffered from military aggression with compensation for material damage in money, kind or services [ 5].

The report of the International Law Commission at the 53rd session of the UN General Assembly states that the responsible state is obliged to provide full compensation for the damage caused by an international legal act. Damage includes any damage, material or moral, caused by an internationally illegal action of the state (Article 31). Full compensation for damage caused by an international legal act is carried out in the form of restitution, compensation and satisfaction, separately or in combination (Article 34) [6].

In general, restitution is primary. However, it may not be possible, for example, in the case of the destruction of the museum, or it may not be sufficient for full compensation. Reparations are intended to provide full compensation. This provision has long been confirmed by international judicial practice [7].

However, the problem lies in the fact that only a subject of international law can bear material responsibility in the form of reparations.

An attempt to codify the international legal features of the state was made in the Inter-American (Montevideo) Convention on the Rights and Duties of States, 1933, which formed the basis of the doctrinal definition of the concept of the state as a subject of international law.

According to Article 1 of this Convention, the state as a person of international law must have the following conditions: permanent population; a certain territory; government; the ability to enter into relations with other states [8], namely the ability, “capacity to enter into relations with the other states”, and not the actual entry into relations. Also, the mentioned convention correlates with the declarative theory of statehood.

However, in contrast to the declarative one, there is a constitutive theory of recognition. “If a territorial entity is not recognized as a subject of international law by already existing (recognized) subjects of international law, then the specified territorial entity is not a state regardless of unilateral self-declaration of independence or unilateral self-declaration of its own statehood” [9].

Thus, nations and peoples who are fighting for their self-determination have the right to claim recognition as subjects of international law only upon compliance with certain conditions and will acquire international legal personality only after they are recognized by other states.

However, if the states formed after the collapse of the aggressor, and their number, taking into account the multinational composition of Russia, may reach forty-three [10], refuse to acquire international legal personality, this may have challenges for Ukraine that will affect its post-war reconstruction, in the context reparations and contributions, which, among other things, will be necessary for the reintegration of the de-occupied Crimea.

The problem of legal succession of states is one of the complex issues of international legal doctrine. Despite the large number of studies in this area, a unified approach has not yet been developed by domestic scientists.

In particular, international lawyers have been discussing for a long time the issue of the forms by which responsibility for offenses committed by their predecessors is transferred to successor states.

Legal succession in international law is understood as the transfer of rights and obligations from one subject of international law to another as a result of the emergence or termination of the former’s existence or a change in sovereignty over the territory.

Most often, legal succession occurs in the case of the termination of the existence of a state, its division, the separation of another state from it, the transfer of a part of the territory to another state, the unification of states. Some scientists also refer here to the case when a social revolution takes place in the state, as well as the capitulation of the state [11].

Legal succession of states is one of the oldest institutions of international law. However, from the very beginning, the focus of scholarship has been on questions of legal succession to problems other than liability, namely contracts and public debts.

These topics also became the subject of a general analysis by the UN Commission on International Law, which eventually led to the adoption under the auspices of the United Nations of two international documents: the Vienna Convention on Succession of States in Respect of Treaties, 1978 and the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts,1983 [12].

Some aspects regarding the legal succession of states can be found in international agreements, on the basis of which the newly created states independently undertook the obligation to share responsibility for offenses subject to judicial prosecution.

However, these agreements do not contain a system of specific mechanisms related to legal succession of responsibility for international offenses [13]. Therefore, we have doubts that the states formed after the collapse of Russian will follow the path of India and Pakistan and will voluntarily assume the burden of responsibility for all the criminal actions of the predecessor state. Most likely, they will try to use the tabula rasa principle of customary international law, that is, the concept according to which a new state seems to build its legal relations from a “clean sheet” at its discretion.

It should be clarified right away that in certain situations, the use of tabula rasa may be limited. According to the 1978 Convention, the new successor state must fulfill obligations contained even in treaties not recognized by it, but which are valid for it on the basis of international law (Article 5). It is primarily about the imperative norms of international law or, as they are also called, the norms of jus cogens and other generally recognized norms, which are the basis of the vital activity of modern international cooperation.

In this way, the states created after the collapse of Russia, even without joining the relevant international treaties and becoming members of global (universal) international organizations, will not be able to wage war, carry out military aggression, commit terrorist crimes, finance or otherwise support terrorism with impunity.

As it was already mentioned earlier, having received part of the territory of Russian and part of its population, having formed their own governments and acquired formal independence in the field of international relations, the states created after the collapse of Russian inherit its financial debts (in equal shares or as they agree among themselves). The “Somalia” scenario should not be excluded either, when during the collapse of Russian, its formal “unified government” will continue to exist, which will not actually manage either territory or resources, but will be recognized by most countries of the world as “legitimate”.

However, a model should also be worked out regarding their responsibility for international violations of Russia and the recovery of restitution, compensation or satisfaction. The extradition of war criminals can also become a problem, because newly created states can refuse this form of international cooperation, at least in the first years of their existence.

We must remind that now a large number of Russian war criminals are hiding in Russian tself and in the temporarily occupied Crimea.

The aggression of Russia in the East of Ukraine annually cost Ukraine up to $14.6 billion in the period from 2014 to 2020 [14]. In total, in the Donetsk and Luhansk regions, the aggressor destroyed: 5,720 residential buildings; 719 power transmission lines and electricity distribution points; 155 heat supply facilities; 43 water supply facilities; 2,669 gas supply facilities; 11 facilities in the field of water drainage and sewage management; 67 health care facilities; 440 schools and kindergartens; 54 vocational and technical educational institutions; 54 higher educational institutions.

Due to the attempted annexation of Crimea, Ukraine did not receive $58 billion of unproduced GDP. For nine years already, the occupiers have been stealing the cultural heritage of the Crimea at an accelerated pace [15], as a result of the criminal construction of the “Tavrida” highway, they are destroying the endemic flora and fauna of the occupied peninsula [16], conducting illegal predatory mining of minerals [17] and unmanaged fishing [18], carry out illegal construction in nature reserves [19], use nationalized state sanatoriums and production enterprises [20]. All these direct losses and lost profits must be recovered from Russia or its legal successors.

The issue of the successor’s responsibility for international offenses was tried to be raised at the first meetings of the UN International Law Commission, but some members of the Commission objected to its further discussion, arguing that it allegedly refers not to international, but to domestic law [21], with which we disagree.

Later, in the decision in the Gabčíkovo-Nagymaros case, the International Court of Justice determined that there is a firmly established norm of international law, according to which the injured state has the right to receive compensation for the damage caused by the state that committed an internationally wrongful act [22].

The interstate practice of decolonization preserved interesting precedents for the existence of the responsibility of the successor state, which can be applied in the event that our prediction regarding the collapse of Russia becomes a reality. Thus, the Hague Round Table Conference (August 23 – November 2, 1949) adopted the Charter on the transfer of sovereignty to a single independent Indonesian state, leaving unresolved the issue of the debts of the Dutch colonial administration.

An international dispute arose, with each side presenting its arguments and calculations on whether the new Indonesian state should bear responsibility for the debts incurred by the colonial administration after it surrendered to the Japanese in 1942.

The Indonesians could not understand why they should pay for the Dutch war against themselves. However, under the pressure of some representatives from the UN commission, the Indonesian side realized that assuming part of the debts would be a necessary payment for the transfer of sovereignty and on October 24, 1949, agreed to undertake the payment of the debt of the Dutch colonial administration in the amount of about 4.3 billion guilders. Indonesia paid this debt for more than fifty years [23].

In September 2002, after the admission of previously neutral Switzerland and East Timor, which eventually declared independence, to the UN, the process of unification under the auspices of the organization of all the world’s states without exception was completed. After that, the UN received a fundamentally new de facto right – the recognition of newly created states.

And it was implemented on June 28, 2006, when Montenegro was accepted into the ranks of the international community. And now there are no states recognized by the world that are not part of the UN, and therefore territories that do not fall under its jurisdiction (the exception is the Holy See with its special status in international law). Therefore, the jus cogens norms adopted within the UN are also spread over the territory of unrecognized states, since formally and legally they were the territories of the UN member states [24], in the case of the territory of Russia, this applies due to the entry of these territories into the jurisdiction of the UN during the USSR.

According to the teaching of Hans Kelsen, an important certificate confirming the international legal recognition of the legitimacy of the new government (international legal confirmation of the state’s ability to implement the constitution) can be an act of a respected universal international organization, which is undoubtedly the UN [25].

Moreover, the government or state may be denied legitimate recognition if the rule of jus cogens has been violated, for example, if the state has used force against another state contrary to the provisions of the UN Charter [26]. Similarly, in our opinion, recognition may be refused to newly created states after the collapse of Russia, if they, having received the land and resources of the predecessor state, refuse to pay compensation to Ukraine and other states of the world that suffered from Russian aggression.

Currently, Ukraine is a participant in three trials against Russian on the basis of the International Court of Justice regarding Russia’s violation of three different conventions: on the fight against the financing of terrorism, on the elimination of all forms of racial discrimination, and on the prevention of genocide. However, some lawyers express doubts that these three different cases will end with the payment of compensation to Ukraine, precisely in the amount that would cover the damage from the war [27], although the awarding of certain compensation is extremely likely.

As of February 2023, the total amount of damage caused to the infrastructure of Ukraine due to the full-scale invasion of Russia has increased by another $6 billion and is at least $143.8 billion at replacement cost [28].

According to academician of the National Academy of Sciences of Ukraine, Chairman of the Board of the National Bank Bohdan Danylyshyn, at the end of March 2022, the estimated value of all frozen reserves of Russia amounted to more than $350-480 billion.

However, not only Ukraine can apply for these funds. For example, companies whose planes were taken away by Russia can demand compensation. The total estimated value of the claims of leasing companies is currently estimated at $13-15 billion.

Numerous foreign companies that have decided to close their business in Russia can also file lawsuits against the occupying country. The value of such assets is difficult to determine, but these companies may be the biggest competitors for the immobilized resources of the Russian Central Bank. Very approximate estimates show that their property can be worth from $50 billion [29].

Thus, it is not worth counting that the frozen assets of Russia will cover the damage caused to it (which is increasing with each day of the war). The risk that Russia will disappear as a state and it will be more difficult to bill is assessed by us as high.

Even Russian academics recognize the inevitability of the collapse of the Russian Federation. This process can be either natural, under the influence of mathematically calculated reasons, or artificial, aimed specifically at avoiding international responsibility. The cunning and meanness of Kremlin ideologues has long been known to everyone. Therefore, we assume that the artificial liquidation of Russia can be carried out as a planned measure by the Kremlin in order to try to avoid international responsibility.

The pseudo-republics formed after the collapse of Russia, led by specially selected puppet leaders, can deliberately choose the path of international outcasts. And when the international community comes to terms with their “quiet existence”, gain strength and, reuniting into a federation, continue the implementation of their aggressive ambitions.

In our opinion, the UN, performing its statutory activities regarding the prevention of wars, aggression, occupation, as well as with the aim of restoring peace and justice, should implement measures to limit the sovereignty of the states created after the collapse of Russia.

In this context, one cannot but agree with the opinion of scientists that at some points the restrictions start to become beneficial and many countries believe that they can get some real advantages due to these restrictions. The more states consciously limit their sovereignty, the more inferior they see states that do not make such limits.

Thus, the restriction of access to international credit resources, free migration of the population, international trade, etc., of the states created after the collapse of Russia, can push these new formations to the opinion that a voluntary limitation of their sovereignty, through obtaining a full-fledged status of a subject of international law, will bring them more benefit in the long run.

And the course of voluntary international integration in compliance with all the norms of international law will be a guarantee that the world will not receive four dozen ungovernable aggressive countries instead of Russia.

At the same time, mechanisms of international coercion must be formed, according to which actual state entities formed on the territory of Russia, regardless of their self-declaration and level of external recognition, will not be able to participate in international economic relations, to export any products without payment of satisfaction and reparations to Ukraine.

Special requirements must be formulated for such formations that will border Ukraine, especially in terms of guarantees for the de-occupied mainland south of Ukraine and the Ukrainian Crimea, in particular regarding the demarcation with such formations of the Sea of Azov, the Kerch Strait and the provision of international shipping in these water areas, as well as regarding waterways to the Caspian Sea, which should receive an international legal regime.

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