Olena Zerkal, Ukraine's Deputy Foreign Minister for European Integration
We are struggling to bring Russia back to legal framework
14.06.2019 16:26

Ukraine and Russia met on the legal ring at the Peace Palace in The Hague for two weeks. Who wins this legal battle depends on the interpretation of articles of conventions, legal terms, on how convincing the parties are. Ukraine tried to convince the court that Russia seized Crimea, supplied weapons to Donbas, and a Russian Buk missile shot down Malaysia Airlines flight MH17. That Russia illegally built a bridge across the Kerch Strait, is stopping vessels in the Black Sea, the Azov Sea and the Kerch Strait, and that the court has the right to sue Russia for all that.

Olena Zerkal, Ukraine's deputy foreign minister for European integration and the Ukrainian agent at the court, spoke in an exclusive interview with Ukrinform about how Russia proved to be correct, Ukraine defeated all the arguments of the Russian Federation, and when new details in the MH17 case will be revealed.

Question: Thank you very much for having found the time for an interview during such very intense two weeks. Thus, the first week of hearings at the International Court of Justice on two conventions - on combating the financing of terrorism and on the elimination of all forms of racial discrimination - is already behind. This week the Permanent Court of Arbitration holds hearings on Russia's violation of the rights of a coastal state. Preparations for meetings are held around the clock. These are very complex processes, and I want to ask you how you are preparing.

Answer: In fact, everything depends on what you mean by preparation. Preparing a meeting, that is a speech, is one thing, but the preparation of a position is quite a different thing. First we are preparing a position. It is outlined in our memorandum. Then, when we received objections from the Russians, we still had two documents that we submitted about the maritime convention. As regards the financing of terrorism and racial discrimination, we submitted one document and expressed our position in writing. And then we continue to work on the preparation of all the positions used by our attorneys during the hearings. And on the basis of their positions, my report as an agent is being prepared, because I have to present it completely, and they are already giving details. And, of course, the preparation of my report is already a creative process, which sometimes lasts for days. So this is a very complex, multiphase process.

Q: What is the hardest thing? The process of preparation or the speech itself? How do you prepare for your speeches?

A: Actually, I already perceive it as a final act. The hardest thing was to do all these things for five years. Because everybody wants to get the result today, and even better yesterday. So that nothing is done. But this does not work in international law. Therefore, we have been preparing for that for five years, we worked positions, we argued, we had conflicts with lawyers, we proved our position, we defended our position with our professors, they took into account our facts, that is, there are no ideal situations. There are always some issues, there are always some problems associated with the realization of anything, especially international law. And this is a combination of theorists and practitioners, you know, there should be synergy in the team, because if there is no synergy, the team cannot work. Therefore, when we meet together, we are actually spending time talking about the majority of questions. And then, after all this has been discussed, we are already doing it in writing, that is, when you go out to the rostrum, you already have a kind of internal scenario of what you want to convey.

Q: There should be great news about MH17 next week. A conference is being prepared. Will new details of the case be released, or the date for the trial announced?

A: I think we will hear a lot. The Dutch are already at the final stage. They also have a request from the domestic community to complete the investigation, and they have already achieved certain results that will be announced. In addition, next week, we will hear more information from Bellingcat, because they are usually in parallel with opening their investigations.

Q: In your opinion, when can the MH17 trial be held?

A: All necessary preparatory actions have already been completed. There is already an agreement. There is already a financial memorandum. Funds have already been allocated. There are already financial resources for court hearings. The procedures are all written out. Everyone is just waiting for the completion of the trial. And I very much respect the Dutch for not making premature conclusions before the investigation is over. Only after they make sure that everything is fully prepared, and the position is strong, only then they come out and say something that they already know for sure.

Q: The trial does not start now because there are new witnesses?

A: No. They are completing all criminal procedures necessary for the transfer of the case to the court. Therefore, they are doing it in silence, just like the investigation should take place.

Q: Do Russians know some new details?

A: I think they already know something, probably the result of the investigation. In addition, the request for legal assistance has already been submitted to them, which, as far as I know, has not yet been answered. So, I think they have something to worry about.

Q: What is happening now behind closed doors during the hearings of the Permanent Court of Arbitration? Only the first 30 minutes of agent appearances in the first two days were opened to journalists. Russia's representatives insisted that the hearings be closed. What is happening now? Are they are afraid that the world will hear the truth?

A: They are afraid that people will hear much of what they are saying now, and then it can be used against them on other platforms. Of course, they do not want everyone to laugh at what they are using. For example, they believe that not only we had a military rebellion in 2014, but that in general we have got our independence, it is also written there that there was a rebellion in Moscow, and that's why Ukraine got independence. They add that to the case. Or they say that in 1954 Crimea was illegally transferred to Ukraine, because there were no all relevant acts. These are the facts that they give to arbitration. And again, what is happening now at the International Tribunal for the Law of the Sea, when they announce to the whole world that they are a coastal state in the sense of the convention, since a "referendum" was held in Crimea and that they recognized this referendum in a few hours after it was held, and this is the reason for the legal acquisition of their sovereign over Crimea. I think that this is also part of the story that should be heard by the judges who will make decisions on the application of the convention and on this dispute.

Q: If I am not mistaken, there are judges who were in Germany.

A: Yes, three out of the five.

Q: Is it read on their faces that they are ready to support Ukraine in The Hague?

A: In fact, these people are professionals. They make an evaluation not from an emotional point of view, but from the point of view of the application of the law. Therefore, for them, perhaps, it will be important exactly how Russia implements the order of the International Tribunal for the Law of the Sea. And this can influence their decision on further action.

Q: We are now waiting for both courts to confirm their jurisdiction, that is, the right to consider these cases. What are the forecasts now? You said that the decision would be made by the end of the year?

A: It depends primarily on the work of the arbitrators. How much they have already worked out the question, how much they are ready to work on the decision. Judging by the issues we received yesterday from arbitration, they are already very deep in the material, they are interested in the position of the parties regarding very technical and very sensitive issues. They are already working. They probably have time to work out a solution. At the same time, it's hard to predict how much time it will take to get a common position, to make a joint decision, because the arbitrators write each and every piece, and then they combine them, discuss everything and already come to some vision. They can all vote, there may be a separate opinion, maybe in part, that is, it will depend on the position of the arbitrators. But in practice this usually does not last more than six months after the hearings.

Q: In both courts the decisions can be made in half a year?

A: Yes, they can.

Q: If we imagine that the case has been heard on the merits and Ukraine has won, may Russia not comply with the court decision?

A: We are struggling to bring Russia back to the legal framework. Because international law was created precisely in order to ensure equal conditions for all countries. If someone, especially a permanent member of the UN Security Council, violates its obligations, then this poses a major threat to international law, to the system of law in general. Of course, not only Russia violates law, and there are a lot of defects in international law, as well as in the United Nations system, but I think that as regards Russia, everyone is already tired of constant manipulations in law. And everyone is firmly firm in the need to return Russia to the framework of international law. And now we are working on the implementation of the order of the International Tribunal for the Law of the Sea concerning our seamen. And I think that in the near future you will see how we implement it on the UN platforms.

Q: The Ukrainian Foreign Ministry has already forwarded an appeal to Russia with a question when to pick up Ukrainian sailors and when it is possible to pick up the vessels. Is there an answer from Russia?

A: There's no answer. On June 25, they have to report how they have fulfilled this order, and then we already have a plan to provide further pressure so that they comply with this order. But so far I will not talk about it.

Q: I cannot but ask you. You have rejected the post of deputy head of the Presidential Administration. Why?

A: I have written everything on my Facebook page. I have nothing to add.

Q: What position would you agree to?

A: The matter is not about any position, and I also wrote about it. The matter is about what are you doing, what brings you pleasure, and where can you be most useful.

Q: Who, in your opinion, could head the Ministry of Foreign Affairs? And would you agree to take up this position?

A: This should be a professional and responsible person who understands what the work of the foreign minister means, because it is very hard work. And I take off my hat before Pavlo Klimkin who was the minister for five years. This is incredibly hard work.

Q: Would you agree to such a job?

A: Me? There are many challenges in life, but they must be timely.

Q: When will the story will the lawsuits end? How many years do we need to have decisions in essence?

A: We have already entered the history of trials. That's for sure. And the results of these court hearings and decisions being made by both arbitration and the court will have consequences not only for Ukraine, but also for the formation of all international law in the future. I think that a lot of people, students will write their theses and dissertations on the basis of those materials. And besides, it is very important how the courts will interpret and arbitrate those events that are taking place in Ukraine. And they are actually creating law with us.

Q: The last day of the hearings is on Friday. What will be the main position in the closing statement on "the sea case"?

A: We have several objections of Russians, which they say are the main ones. This is a denial of the fact that they have the right to Crimea. And their second objection, the main thing is that the Convention on the Law of the Sea does not apply to the Sea of Azov, the Kerch Strait. Because they believe that it is historically an inland sea, and nothing can deprive them of the right to set their own rules and regulations in this sea. There are a lot of their objections. They put forward them all in the event that if one does not work, then another thing may work. Therefore, we will focus on two of their main objections regarding jurisdiction and say that they have actually confessed today in the final statement of their agent that it is impossible not to notice that we have a dispute, and that in order to understand this dispute, it is necessary to move to the consideration of the case on the merits.

Q: So they actually agree, recognize the dispute and are ready to switch to the trial on the merits?

A: We will prove it. And they helped us today by telling us about the Kerch Bridge, fishermen, how they regulate navigation in the Kerch Strait, and how the ships are being inspected there.

Q: But it's not about Crimea at all.

A: Yes, you see that.

Iryna Drabok, The Hague

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