Volume 12 - Issue 67
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http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2023.67.07.25
How to Cite:
Bilousov, Y., Yakoviyk, I., Kosinova, D., Asirian, S., & Zhukov, I. (2023). Foreign state immunity in the context of Russia’s full-
scale aggression against Ukraine. Amazonia Investiga, 12(67), 283-292. https://doi.org/10.34069/AI/2023.67.07.25
Foreign state immunity in the context of Russia’s full-scale aggression
against Ukraine
Імунітет іноземної держави в умовах повномасштабної агресії РФ проти України
Received: June 12, 2023 Accepted: July 15, 2023
Written by:
Yevhen Bilousov1
https://orcid.org/0000-0003-3998-9947
Ivan Yakoviyk2
https://orcid.org/0000-0002-8070-1645
Daryna Kosinova3
https://orcid.org/0000-0002-2637-1606
Syuzanna Asirian4
https://orcid.org/0000-0002-9503-6203
Ihor Zhukov5
https://orcid.org/0000-0003-1374-196X
Abstract
The article aimed to find ways to restrict Russia’s
right to State immunity legitimately. However, the
study of international legal acts and national
legislation of Ukraine using the methods of
systematic analysis and formal legal and
comparative legal methods proved the difficulty in
solving this task. Thus, in Russia’s aggression
against Ukraine, the latter is not obliged to comply
with the doctrine of State immunity to Russia. This
is due to economic and social expediency, the
principle of mirroring international relations, and
the inevitability of punishment for war crimes
against another State and for violating international
criminal law. Therefore, the article proposes
legitimate restriction of Russia’s State immunity for
Ukraine and third countries. For Ukraine, the
solution to this problem lies in the legislative
consolidation of a direct exception to the doctrine
of State immunity to any aggressor state, including
Russia. For any third country, the solution to this
problem is either changing national legislation or
concluding bilateral agreements with Ukraine. This
will allow for recovery of damages at the expense
of property in third countries and owned by Russia
itself, its authorities and officials, or legal entities
1
Doctor of Law, Associate Professor, Department of European Union Law, Yaroslav Mudryi National Law University, Kharkiv,
Ukraine. Researcher ID: AAF-5554-2021
2
Doctor of Law, Professor, Department of European Union Law, Yaroslav Mudryi National Law University, Kharkiv, Ukraine.
3
PhD in Law, Senior Lecturer, Department of Private International Law and Comparative Law, Yaroslav Mudryi National Law
University, Kharkiv, Ukraine.
4
PhD in Law, Assistant, Department of European Union Law, Yaroslav Mudryi National Law University, Kharkiv, Ukraine.
5
PhD in Law, Associate Professor, Department of European Union Law, Yaroslav Mudryi National Law University, Kharkiv,
Ukraine. Researcher ID: ACJ-6311-2022
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and individuals recognised as involved in the war
against Ukraine.
Keywords: compensation for damage,
international legal acts, national courts, state
immunity, war crimes.
Introduction
The sovereignty of any state determines its
international legal personality, i.e. the ability to
independently resolve issues related to achieving
its goals of civilisation development in relations
with other states. Its recognition by the
international community guarantees any State's
freedom of participation in international affairs.
This right is enshrined in the relevant
international legal acts and is defined as the main
principle of global development introduced after
World War II. Faced with global challenges
related to the aggression of some states against
others, the victorious states developed, in their
opinion, an effective architecture of the new
world in which peace and mutual respect of
States as equal subjects of international relations
should prevail.
The new system of global legal order required the
creation of an effective method of guarantees for
the practical realisation by all States of their
international legal personality. One of these
guarantees is State immunity, governed by the
principle of “par in parem non habet imperium”
– an equal has no power over an equal.
Its value is reflected in the guarantees enshrined
in international legal acts concerning the non-
extension of the judicial jurisdiction of one State
to another. That is, the immunity of a State does
not allow, without the consent of that State, to
initiate legal proceedings in the courts of other
States, both those relating to direct claims – in
personam (i.e. directly against the State) and
indirect legal actions – in rem (in which the claim
is related to the activities of the authorities of a
foreign State or to property belonging to it).
Thus, the modern system of international law
excludes the possibility of any country's sole
decision to initiate cases against another state in
its courts, including its authorities and official
institutions.
The significance and actualisation of this
principle are vital in the context of Russia’s
armed aggression against Ukraine. Damage,
crimes against humanity, war crimes, and the
genocide of the Ukrainian people are all modern
realities of Russia’s manifestation of its
international legal personality. In such
circumstances and taking into account the
principle of “par in parem non habet imperium”,
Ukraine is significantly limited in its ability to
demand reparations and compensation for losses
caused by Russia by recovering property,
including money and other valuables placed by
Russia, both in Ukraine and in third countries, for
the benefit of the state of Ukraine. And while the
issue of Russian assets on the territory of Ukraine
can be resolved politically through the
introduction of a system of sanctions with
subsequent enforcement of all property of Russia
located on the territory or in institutions subject
to Ukraine’s sovereignty, there is no such
solution for other States. For them, the violation
of the doctrine of State immunity, even in
relation to Russia, remains an imperative
prohibition on using more active and effective
means of countering Russia’s armed aggression
against Ukraine.
Therefore, the aim of our study is as follows: to
establish the possibility of changing the existing
doctrine of State immunity about those countries
that have committed an act of aggression against
third countries, commit war crimes against the
population of that country and use the
mechanisms of hybrid warfare directed against
specific countries, against regional or global
security.
Research objectives:
− to define the essence and content of the
principle of State immunity in international
law;
− to establish the main features of State
immunity and its international legal
consolidation;
Bilousov, Y., Yakoviyk, I., Kosinova, D., Asirian, S., Zhukov, I. / Volume 12 - Issue 67: 283-292 / July, 2023
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− find ways to apply exceptions to the doctrine
of State immunity to countries that commit
war crimes, genocide and acts of aggression
against third countries.
Therefore, it is necessary to find an international
legal way to punish Russia for crimes of
aggression and other war crimes against the
Ukrainian people committed during the large-
scale invasion of Ukraine.
Literature review
The doctrine of State immunity and the principle
of “par in parem non habet imperium” is a
frequent topic of scientific research by the
international scientific community, experts in
international law, diplomats, international
lawyers, etc.
For example, Sanger (2013) refers to practical
cases of implementing the principle of “par in
parem non habet imperium” through its
components, such as immunity of special
missions, high-ranking officials and State
immunity. He considers whether state officials
accused of international crimes (including war
crimes) can invoke ratione materiae immunity
from the criminal jurisdiction of a foreign state.
Van Alebeek (2018) explores potential
exceptions to the doctrine of State immunity and
tries to resolve it by removing restrictions on
applying functional immunity when officials are
accused of committing international crimes.
Zongwe (2019), using the example of the war in
Namibia, demonstrates that even if States have
officially declared that they recognise or consent
to the jurisdiction of an international or domestic
court, one of the parties to the dispute may
prevent that court from effectively exercising
jurisdiction by filing an objection that this party
enjoys immunity. According to him, the issue of
immunity arises before national courts more
often than any other issue of international law in
connection with war crimes and acts of
aggression. But the scholar also concludes that it
cannot be resolved without developing an
effective international legal mechanism and
creating a system of global coercive measures to
bring the guilty party to justice.
Murphy (2018) notes the attempts of the UN
International Law Commission to develop an
exception to the doctrine of State immunity by
introducing six elements of crimes under
international law in respect of which “ration e
materia” immunity does not apply. Among these
crimes, the researcher mentions genocide; crimes
against humanity; war crimes; apartheid; torture;
and enforced disappearances. However,
according to the scholar, all this applies only to
individual state officials but should also apply to
the State since compensation for damage at the
expense of its property has much greater
prospects than compensation for damage at the
cost of the property of the person held liable.
Matter (2019) from the American Society of
International Law try to revise the doctrine of
State immunity and offer to start with the
baseline of immunity as a matter of customary
international law and then try to identify state
practice and “opinio juris” in support of
exceptions to it.
The doctrine of foreign State immunity arose
from the principle of diplomatic immunity, in
which States treated foreign diplomats as if they
were not present in the State's territory and were
outside the scope of judicial jurisdiction based on
territorial presence. The 2012 ICJ Court
judgment in “Germany v. Italy” provides that
States are immune from each other's jurisdiction
and then considers possible exceptions under
customary international law. In other words,
considering the traditional nature of the doctrine
of State immunity, scholars propose to introduce
exceptions to this rule similarly through
precedent. This situation is of extreme utilitarian
importance for Ukraine. It is due to the need to
initiate appropriate legal proceedings against
Russia due to the political will of third states.
Possible exceptions to the doctrine of State
immunity are extremely relevant and have been
raised by the UN Security Council in its appeal
to the International Criminal Court (Galand,
2019). The crux of the matter is how exactly the
immunity of a State can be limited about its
official representative, in respect of whom the
International Criminal Court (from now on – the
ICC) has issued a warrant. The relevance of this
appeal is due to the question raised in it:
“Whether a State official from a State not party
to the Rome Statute is entitled to invoke its
immunity before the ICC when the latter
exercises jurisdiction under Article 13 (b).”
Given that Russia can arbitrarily “level” the
effect of any internationally recognised
conventions and jurisdictions of courts by its
acts, the ICC’s response to this question is
important. Moreover, Russia has already
“levelled” the judgments of the European Court
of Human Rights (from now on – the ECHR).
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Curran (2019) analyses the Foreign Sovereign
Immunities Act (from now on – FSIA), passed by
Congress and covers all cases where foreign
States have immunity from suit in US courts, as
well as when the immunity of foreign States
should be limited. The researcher considers the
expropriation of foreign State property in case of
violations of international law by the example of
the US courts and notes that today there are clear
cases and possibilities of applying the
expropriation mechanism in cases of genocide
committed by foreign States. However, this
practice must be finalised in determining what
exactly should be considered a violation of
international law.
Perot Bissell and Schottenfeld (2018) examine
the issue of international immunity on the
example of the lawsuits filed by victims of the
September 11 attacks who sued Iran in the
Southern District of New York for aiding and
abetting al-Qaeda in committing the attacks.
Researchers use the court’s decision to award
Iran $1.8 billion in damages as an international
judicial precedent.
According to Ukrainian researchers Bilousov et
al., (2021), this US practice is effective and
applicable to Ukraine. Congress wanted to ensure
plaintiffs could use ordinary state law causes of
action to sue foreign States. This approach is not
directly relevant to the situation in Ukraine. Still,
in recent years, plaintiffs have filed various cases
that represent “classic” applications of
exceptions to non-commercial torts and those
that expand the scope of the classical
understanding of non-commercial torts.
According to Atamanova and Kobets (2022),
Russia's full-scale aggression against Ukraine
gives a new impetus to discussions and resolving
fundamental issues regarding the limitation of
jurisdictional immunity. Current events prove the
need for Ukraine to move from the doctrine of
full immunity to the concept of limited immunity
as a law that would comprehensively regulate all
pressing issues.
The position of Ukraine, supported by other
states, can contribute to forming a new
customary norm (Atamanova & Kobets, 2022).
Vodyannikov (2022) also claims that Ukraine is
not in an ordinary situation – from a legal point
of view, Ukraine is in a state of individual self-
defence within the meaning of Article 51 of the
UN Charter.
A State’s inherent right to individual self-defence
is recognised by Article 51 of the UN Charter as
an inalienable right. It identifies the right of a
State that has become a victim of the use of force
(in our case – of the wrongful act of aggression)
to take all lawful measures for self-defence,
including derogation from international legal
norms and obligations (except for peremptory
norms). In other words, Article 51 of the UN
Charter is the basis for derogation from the
international legal obligations of a state vis-à-vis
the aggressor state and for using
countermeasures in response.
So, scholars have different opinions regarding
the integrity of the doctrine of State immunity.
Still, almost all of them agree that it should be
limited in cases of direct aggression of one State
against another.
Methods and materials
The research methodology aims to determine the
possibilities of bringing Russia to justice for
aggression and war crimes against Ukraine and
the Ukrainian people.
This study proposes the following logical scheme
of methodological cognition of the essence of the
problem (Figure 1).
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Figure 1. Algorithm for implementing the research methodology.
The study of State immunity is always
internationally oriented, which means that the
issue of bringing Russia to justice by applying
the jurisdiction of third-country courts to it
should be resolved at the international level.
Restrictions on the right of Russia to State
immunity should be utilitarian and therefore
universal, i.e., acceptable to the international
community.
To this end, this article actively uses a group of
methods to systematically analyse the provisions
of international legal acts and certain acts of
national legislation of some countries. In
particular, using the formal legal method made it
possible to reveal the essence and limits of
applying the doctrine of State immunity in
international law.
Systemic analysis and the comparative legal
method allow the introduction of restrictions on
State immunity. Using the hermeneutic
approach, it became possible to determine how to
enshrine certain aspects of restrictive State
immunity.
In particular, the authors critically analysed
Article 51 of the UN Charter; the provisions of
the Rome Statute; the ICC’s application of the
doctrine of State immunity; the ECHR’s practice;
individual ICC decisions, in particular, the 2012
Judgment of the International Court of Justice
(ICJ) in the case of “Germany v. Italy”; the US
Foreign Sovereign Immunities Act, etc.
The article discusses the opinion of Ukrainian
experts on how to practically apply exceptions to
the doctrine of State immunity about Russia by
third countries in whose territory the property of
the aggressor country is located.
As part of an active expert discussion in the
Verkhovna Rada Committee on International
Relations and the National Institute for Strategic
Studies, it was determined that most experts are
inclined to a political solution to the problem of
limiting the immunity of Russia in the
jurisdictions of third-country courts. However,
other opinions on the international legal
framework for such a restriction regarding
Russia were also considered, which became one
of the foundations of this study.
Results
The doctrine of State immunity protects any State
from the jurisdiction of any national courts of a
third State. In the case of Russia, for Ukraine, the
State immunity of the aggressor country means
removing its property from the jurisdiction of
Ukrainian courts.
At the same time, State immunity does not apply
to specific individuals, particularly to all citizens
of Russia, by international legal acts. Such
international legal acts are the Vienna
Convention on the Representation of States in
their Relations with International Organizations
of a Universal Character of March 14, 1975, the
Vienna Convention on Consular Relations of
April 24, 1963, the Vienna Convention on
Diplomatic Relations of April 18, 1961, and the
Convention on Special Missions of 1969.
In other words, the jurisdiction of Ukrainian
courts extends to the citizens of Russia under the
Possibility of fixing the cases of limitation of State immunity as a result of acts of
aggression, genocide and other war crimes
Compared
Analysis of the practice for application exceptions to the general doctrine of State immunity
by various judicial institutions
Analysis of international legal acts that enshrine the doctrine of State immunity, as well as
potential opportunities for its restriction
The rationale is explored
Modeled
The mechanism for applying to Russia the restriction of the State immunity for the recovery
of damages and reparations in favour of Ukraine
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said exception, which makes it possible to bring
them to all types of liability, including criminal
and civil liability (compensation for damage,
losses) for committing war crimes and crimes
against the Ukrainian people. This is the first
caveat we should remember when discussing
developing an effective mechanism for applying
exceptions to the doctrine of State immunity.
State immunity is enshrined in two international
legal acts:
− The UN Convention on Jurisdictional
Immunities of States and Their Property,
adopted by General Assembly resolution
59/38 on December 2, 2004. Moreover, this
type of immunity is applied by national
courts as a codified set of customary
international law; that is, States do not have
an imperative to apply this immunity but use
it through international custom (Effective
Regulation Platform, 2004);
− The European Convention on State
Immunity adopted by the Council of Europe
on May 16, 1972. This Convention contains
the concept of limited State immunity,
defines the form in which a State may waive
its immunity, and sets out a list of categories
of cases in which a State does not enjoy
immunity in the court of another State Party
(Sivash & Sherstyuk, 2022).
Both Conventions enshrine the State immunity.
However, the national courts are not limited
when resolving compensation for damage and
losses caused by bodily injury or other impact on
a person’s health.
However, State immunity is limited to the
national courts of a State in cases involving harm
to the life and health of its citizens. It is mainly
used in civil or commercial disputes, but in the
context of Russia’s attack on Ukraine, we can
expand the cases of its application significantly.
The problem is that if we talk about prosecuting
specific criminals, we personalise them and
separate them from the State. In other words,
charging any Russian war criminal by the
national courts of Ukraine limits the possibility
of recovering damages at the expense of his
property alone.
At the same time, the property of the Russian
State is not subject to the substantive influence of
the national courts of Ukraine. And it is precisely
this problem – establishing a clear link between
war criminals and acts of aggression, genocide
and war crimes of the Russian Federation – that
needs to be addressed in a way that would be
internationally universalised in limiting Russia’s
State immunity.
The solution to this problem may be as follows.
First, Ukraine is not a party to any of the above
conventions, and therefore it is not obliged to
comply with the doctrine of State immunity.
However, Article 79 of the Law of Ukraine, “On
Private International Law”, does enshrine this
immunity. In addition, there are also reservations
regarding its limitation, set forth in part 4 of the
article (Document № 2709-IV, 2022).
Cases of its limitation are determined by
mirroring the requirement for other countries to
respect Ukraine’s State immunity. However, if
third countries violate it, Ukraine may also break
it about the property or bodies of that country that
operate in the territory of Ukraine (representative
offices, consulates, etc.).
Secondly, an analysis of the provisions of the
above Conventions shows that in case of non-
accession to them, the State may decide on
applying State immunity based on customary
international law. This means that the national
courts of Ukraine may use the practice of
international courts or even national courts of
other States in matters of limitation the State
immunity.
Here we should refer to the provisions of Article
12 of the UN Convention on Jurisdictional
Immunities of States and Their Property, which
is the basis for limiting the judicial immunity of
a foreign State as a result of physical harm to a
person or damage to property, the so-called “tort
exception” (Effective Regulation Platform,
2004).
In the decision of the International Court of
Justice (ICJ) in the case Jurisdictional
Immunities of the State (“Germany v. Italy:
Greece intervening”) of February 03, 2012, the
court expressly established that the possibility of
non-application of the immunity of a foreign
State to non-payment of compensation for
serious human rights violations during an armed
conflict committed by the responsible State,
especially in the absence of other means of
payment, is not a violation of the sovereign rights
of another State.
The ECHR reaches a similar conclusion. The
ECHR’s legal position on the limitation of
jurisdictional immunity is reflected in the
judgment of March 14, 2013, in the case of
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“Oleynikov v. Russia”, where the Court made a
decision that the State immunity may be limited
“by customary international law, even if that
State has not ratified it”, and the Court must take
this fact into account (Sanger, 2013).
Therefore, Ukraine can and should limit Russia’s
State immunity, especially given the acts of
aggression, genocide and ongoing war crimes
committed against Ukraine and the Ukrainian
people.
Since 2014, the practice of Ukrainian courts,
including the Supreme Court, in resolving cases
involving claims of Ukrainian citizens against
Russia for compensation for damage caused by
the armed aggression of Russia is that given the
provisions of Article 79 of the Law of Ukraine
“On Private International Law”, before deciding
whether to initiate proceedings in such a case, the
Ukrainian court had to find out whether the
diplomatic mission of Russia as the competent
authority of the State had consented to the
consideration of the case in the courts of Ukraine
(Document №2709-IV, 2022).
The Supreme Court’s case law on the judicial
immunity of Russia of the Civil Court of
Cassation of the Supreme Court of April 14,
2022, in case No. 308/9708/19, claims that “the
court of Ukraine, when considering a case where
Russia is the defendant, has the right to ignore the
State immunity of this country and consider cases
on compensation for damage caused to an
individual as a result of the armed aggression, in
a lawsuit filed against this particular foreign
country” (Case No. 308/9708/19, 2022).
Hence, a foreign State’s commission of acts of
armed aggression is not an exercise of its
sovereign rights but a violation of the obligation
to respect the sovereignty and territorial integrity
of another State – Ukraine, as enshrined in the
UN Charter. This conclusion should form the
basis for limiting Russia’s State immunity,
including through the influence of national courts
of third countries on Russia using withdrawal of
property of Russia located in the territory of that
country in favour of Ukraine as compensation for
damages caused by acts of aggression, genocide
and other war crimes committed against Ukraine.
Both our conclusion and the above statement are
consistent with the Law of Ukraine “On Private
International Law” and the practice of other
States, as the implementation of the limitation of
Russia’s State immunity in Ukraine is impossible
according to the classical rules set forth in the
above Conventions: subject to the consent of
another state (Document № 2709-IV, 2022).
Due to Russia's full-scale invasion of the territory
of Ukraine on February 24, 2022, Ukraine broke
off diplomatic relations with Russia, making it
impossible to send various inquiries and letters to
the Embassy of Russia in Ukraine since it ceased
operating.
According to the legal position of the Supreme
Court outlined in the Resolution of the Grand
Chamber of the Supreme Court of May 12, 2022,
in case No. 635/6172/17, plaintiffs in cases for
compensation for damages caused by Russia as a
result of military aggression against Ukraine, are
paid at the expense of the property of Russia, as
well as its legal entities and individuals, who are
included in the sanction lists, both national and
international (Case No. 635/6172/17, 2022).
Therefore, this rule should become the basis for
applying the limitation of Russia’s State
immunity in the national courts of Ukraine and
third countries regarding the recovery of
compensation for damages caused by Russia to
Ukraine since 2014 due to its aggression and
other war crimes.
This rule should be implemented primarily
through Ukraine’s diplomatic efforts and by
concluding bilateral interstate agreements
between Ukraine and other countries, the subject
of which should be introducing the said rule into
the national legislation of such country.
Discussion
The application of the doctrine of State immunity
and the grounds for its limitation is one of the
most controversial in the context of Russia’s
aggression against Ukraine. For example,
Bellinger et al., (2021) claim that the doctrine of
State immunity itself was developed mainly due
to the consideration of cases by national courts in
proceedings against foreign states.
The right to State immunity is primarily a law
developed by a court, which means that court
decisions become a source of international law in
terms of State immunity, and the doctrine of State
immunity itself is not indisputable (Bellinger et
al., 2021). According to scholars, it means the
possibility and necessity of limiting State
immunity to those countries that exert unlawful
influence on third countries in violation of
international law.
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In this context, Yang (2019) draws attention to
the Decision of the Supreme Court of Austria of
May 10, 1950, in the case of “Dralle v. Republic
of Czechoslovakia”, which is the starting point in
the final formation of the theory of limited State
immunity about commercial activities. He also
highlights the State Immunity Act of 1978 of
Nigeria, which, already at the national level,
establishes a limitation of the State’s immunity in
case of aggressive and unfair policies towards
Nigeria (Yang, 2019).
Fox and Webb (2020) draw attention to the legal
practice of the United States, which has been
changing since 2014 due to Ukrainian realities
since the terrorism committed by Russia against
Ukraine is a crime of an international nature.
Therefore, effective measures are needed to
counter it.
But the quintessence, according to Ravenell and
Ross III (2022), is the development by the US
Congress of the draft law “Ukrainian
Sovereignty Act” (H.R. 7205 “Ukrainian
Sovereignty Act of 2022”), which proposes to
provide that a foreign State shall not be immune
from the jurisdiction of the United States courts
in any case where monetary damages are sought
against a foreign State for bodily injury,
including death, property damage, or loss of
property, caused by the invasion of another
sovereign State located in Europe if such an
invasion occurs.
This fully confirms our conclusion regarding the
need to introduce limitations on Russia’s State
immunity in the legislation of third countries due
to the aggression against Ukraine.
Some Ukrainian scholars emphasise the need to
distinguish between the State’s public and
private legal interests and the appropriate
application of State immunity. For instance,
Vedkal and Hadirli (2021) exclude the restriction
of Ukraine’s State immunity about third states by
consolidating this imperative in national
legislation. Borshchevska (2021) points out that
Ukraine’s compliance with this doctrine is its
international legal obligation; therefore, applying
exceptions to the State’s sovereignty is
unacceptable.
Kulchii and Lyakhivnenko (2016) bypass the
imperative use of this doctrine through the
principle of expediency and mirroring of
measures taken by states in their international
bilateral relations. That is, if Russia, ignoring
international law, wages an aggressive war
against Ukraine, Russia has abandoned the norms
of international law, and Ukraine should not
adhere to the rule of State immunity about
Russia. Forteau (2018) also stand for the
unequivocal removal (deprivation) of any
international State immunities of the aggressor
State, which is necessary for the seizure of
property belonging to this State, for making
payments to victims from such property,
especially its state property, property of state
legal entities, etc.
Authors believes that at the international level,
there is a need to establish limits on State
immunity and a reasonable balance between the
protection of sovereign equality and the fight
against impunity in the case of international
crimes (Hammers, 2018). It is precisely this
impunity that Ukraine must overcome to hold
Russia accountable for the damage caused by
military aggression.
Conclusions
We define the doctrine of State immunity, which
is used in customary international law, as one of
the obstacles to bringing the aggressor State of
Russia to justice for crimes committed against
Ukraine. The essence and content of State
immunity is that a State cannot be subject to the
jurisdiction of any national court of another state
without consent.
This implies a voluntary waiver of immunity by
the state. However, such behaviour is not
inherent in a country that disregards international
law and commits an act of aggression against
another independent state. Therefore, by its
actions, Russia delegitimises the norms of
international law and thus deprives another
country of the obligation to observe them about
the Russian Federation. The selective application
of international law is excluded, as it would
collapse the entire global legal order. Therefore,
Ukraine should not follow the doctrine of State
immunity against Russia and has the full right to
recover for the damage caused by Russia due to
its military actions. Such recovery is envisaged at
the expense of property located on the territory of
Ukraine and owned by Russia, as well as the
property of Russian legal entities and residents
who have been included in any sanctions lists for
their role in the aggression against Ukraine.
This imperative, which the judicial system of
Ukraine has already developed, is proposed to be
enshrined in Part 5 of Article 79 of the Law of
Ukraine “On Private International Law”. The
legal provision we offer to implement should
indicate the need to limit the aggressor State’s
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/ July 2023
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right to State immunity for committing
international criminal offences.
Third countries should apply the same limitation
to Russia for its aggression against Ukraine,
which should be achieved by concluding bilateral
agreements between the States. The subject of
these agreements should be a clear provision on
extending the jurisdiction of national courts of
third countries over Russia, its property, and the
property of its legal entities and citizens.
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