By Konstantinos D. Magliveras, Professor of Public International Law, University of the Aegean, Greece

I. Introduction  

On 16-17 May 2023, the 4th Summit of Heads of State and Government of the Council of Europe (CoE) took place in Reykjavík. The agenda comprised two matters: to stand united against the Russian Federation’s (RF) war against Ukraine and to give further priority and direction to CoE work. As regards the former, the ensuing Declaration endorsed the conclusion of the so-called ‘Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine’ (Register of Damage). It had been established four days earlier by the CoE Committee of Ministers (Resolution CM/Res(2023)3 amended in September 2023). According to Appendix I of the Resolution, said Agreement was an action essentially implementing UN General Assembly (UNGA) Resolution ES-11/5 of 14 November 2022. Titled ‘Furtherance of remedy and reparation for aggression against Ukraine’, Resolution ES-11/5 recognised that RF must bear the legal consequences of its internationally wrongful acts against Ukraine, noted ‘the need for the establishment of an international mechanism for reparation’ and recommended ‘the creation of an international register of damage’ caused by RF.

Before the Reykjavík Resolution, the CoE Parliamentary Assembly (Resolution 2482 (2023) had asked Member States to set up such an international compensation mechanism and a register of damage. As regards the latter, it is presently operational and receives, processes, and records claims in accordance with its Statute. As regards the former, the Reykjavík Resolution recorded Member States’ ‘[e]xpress 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 …’ (emphasis added). The purpose of this note is to examine from a critical point of view the Convention Establishing an International Claims Commission for Ukraine (‘Convention’ and ‘Commission’), which the Committee of Ministers approved on 22 October 2025. The note could be read together with a previous one published in International Law Blog examining the CoE Special Tribunal for the Crime of Aggression against Ukraine, which has not yet been operationalised.

II. The Convention’s legal basis and aim, the Commission’s organs and work and other pertinent matters

Considering that the Convention was adopted by only CoE Member States, one would have reasonably expected that it would set out which is its legal basis vis-à-vis the CoE’s founding legal instrument and constitutive act, the Statute of the CoE (1949). However, there are no references to the Statute, which, it should be recalled, excludes matters relating to national defence from CoE aims and purposes. On the contrary, the Convention cites solely UN instruments: its founding treaty (Article 2 UN Charter); UNGA Resolution ES-11/1 of 2 March 2022 (deploring RF’s aggression against Ukraine); UNGA Resolution 60/147 of 16 December 2005 (adopting the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law); and the aforementioned Resolution ES-11/5.

It follows that the Convention should be viewed as a multilateral legal instrument through which signatory parties decided to implement the UNGA’s call for the establishment of an international compensation mechanism, in casu the International Claims Commission for Ukraine. It is submitted that the Convention was drafted and concluded under the auspices of the CoE is of no particular relevance, because the CoE Member States that adopted the Convention acted in reality as UN Member States implementing a decision issued by its plenary organ (UNGA). To put it otherwise, such a Convention could have been adopted by the same signatories acting, for example, on their own (i.e. without the CoE’s institutional framework) or as members of the European Union (EU) or as members of the Organisation for Security and Cooperation in Europe (under the OSCE Rules of Procedure). Indeed, any of 193 UN members acting as a group of like-minded countries or under the auspices of an international organisation or institution could have created an international entity akin to this Commission. It follows that there could globally be more than one such ‘Commissions’. Even though Resolution ES-11/5 says that such ‘Commissions’ should be established in ‘cooperation with Ukraine’, were Ukraine not to cooperate their creation would not be contrary to international law.   

Presumably to avoid any other ‘Commissions’ from being established elsewhere in the global community, Article 30[1] of the Convention provides that it shall be open for signature by all CoE members, ‘any other States and the European Union that participated in the Diplomatic Conference for the adoption of this Convention, and any other States that voted in favour of … resolution ES-11/5 …’. The latter’s voting record was as follows: 94 UN Member States in favour, 14 against, 73 abstained, and 12 were absent or suspended from voting (on account of Article 19 UN Charter). However, Article 30 arguably contradicts Article 28 of the Convention for the following reason. Even though RF voted against Resolution ES-11/5, under Article 28, it may become a member of the Commission at any time provided that it makes a declaration accepting, inter alia, its responsibility for damage and injury caused in Ukraine, including aggression, and violations of international humanitarian law and human rights law. Moreover, RF would also have to agree, on the one hand, to honour the Commission decisions on compensation and pay the compensation awarded and, on the other hand, ‘to reimburse Members and, where applicable, Observers for their contributions to the costs of the Commission’.

The latter stipulation appears problematic because Article 23(1) of the Convention (titled ‘Financing and Budget’) provides that, upon RF becoming a Member, it shall bear the Commission costs from the Convention’s entry into force. It follows that this stipulation in Article 28 has rather been addressed in Article 23(1). If RF never joins the Commission (and realistically it will never do so), the Commission will be financed through the annual assessed contributions of Members and through voluntary contributions, the latter to be made without prejudice to the possibility of being recovered from RF. How such recovery could possibly be achieved is not explained in the Convention. Pursuant to Article 23(5), the Commission will have its own budget within the CoE framework. Members’ contributions will be determined by the Financial Committee, based on the criteria for determining the annual scale of contributions for the CoE general budget. Finally, pursuant to Article 23(7), the Commission’s plenary organ, the Assembly, is empowered to suspend a Member’s rights where it considers that it has failed to fulfil its financial obligations under the Convention. It is not clear if this power of suspension should be understood as sanction or as warning. If it were the former, it is rather difficult to see which are the important rights to be suspended, unless the Member in defaulting payment of assessed contributions happens to be Ukraine. And if RF were to join the Commission, one easily understands the futility of the power of suspension.  

Regarding the time frame of the internationally wrongful acts committed by RF, the Convention’s temporal scope covers those perpetrated on or after 24 February 2022. However, ‘this does not absolve [RF] of any responsibility for its internationally wrongful acts committed in or against Ukraine on or after 20 February 2014’ (the day RF invaded and later annexed the Crimean Peninsula). According to the Preamble, the Convention could be amended in the future to have its temporal scope extended to 20 February 2014 (amendments are regulated in Article 33). Two observations should be made. First, it is not clear which is the time frame of the wrongful acts committed after 20 February 2014: do they continue ad infinatum or stop on 24 February 2022 (the day that the Commission’s mandate commences)? Second, none of the wrongful acts after February 2014 are considered to be ever time-barred.  

Regarding the Commission’s legal status, Article 2 of the Convention calls it ‘an independent body within the institutional framework of the [CoE]’. Moreover, under Article 4, it has international legal personality and may undertake related (trans)actions (e.g. enter into agreements, acquire and dispose of movable and immovable property, institute legal proceedings). The Commission has a rather burdensome institutional architecture, which should result in a high cost of running and overheads. In particular, Part IV (Articles 7-15) envisages the following organs/bodies: Assembly; Financial Committee; Council; Commissioners and Panels (each Panel will be composed of three Commissioners); Secretariat and Executive Director. The Commission must operate according to the highest standards of independence, impartiality, fairness, and objectivity. Its privileges and immunities are guaranteed under Article 6.

Pursuant to Articles 16 et seq., of the Convention, the procedure to be followed in the Commission is as follows: the Panels shall examine claims, establish whether they are substantiated, determine any amount of compensation due with respect to each of them, and make recommendations for decisions to the Council. Decisions shall be adopted in accordance with the applicable Rules and Regulations. Panel recommendations must be reasoned and preferably adopted by consensus. If this proves impossible (efforts to achieve consensus must be made), recommendations shall be adopted by a majority of the Commissioners sitting on the Panel.

Article 26 of the Convention deals with the settlement of disputes. In particular, disputes between Members as to the Convention’s interpretation or application shall be settled through negotiation or any other peaceful means. The Assembly is required to facilitate the friendly settlement of such disputes. Interestingly enough, pursuant to Article 7(4), this is a function that the Assembly could delegate to the Council. Arguably, the settlement of disputes clause is inadequate and should have envisaged settlement by an international court or through binding arbitration, especially to cater for the possibility that RF joins the Commission. Previous experience with state claims for injury and damage shows the significance of being able to resort to judicial mechanisms/entities.

III. Conclusions – Who will pay any compensation to be awarded

In accordance with Article 30(3), the Convention shall enter into force when both of the following conditions are met: (a) twenty-five signatories have expressed their consent to be bound by this Convention; and (b) the aggregate individual contributions of these signatories to the budget of the Register of Damage for 2025 constitute at least 50% of the total Register budget for 2025 (presently it translates to circa 3,7 million euro). As regards the second condition, it should not be a problem to be fulfilled. But how soon will the twenty-five ratifications be secured cannot be prognosed.

Assuming that the Commission becomes functionable, the obvious question is who will pay the compensation/reparation to be awarded. Articles 3(4) and 21 say that RF, under international law, is responsible for all damage, loss, or injury to Ukraine and RF must bear the legal consequences of its internationally wrongful acts. Therefore, the Convention expects that RF ‘shall fund the compensation determined and awarded by the Commission’, while the other Members shall not be required to fund the compensation. To the question whether Commission Decisions can be enforced through the domestic courts of Members, Article 21 answers in the negative. It follows that, even if RF were to join the Commission, its Decisions would not capable of domestic enforcement (unless RF expressly permits it, a very low likelihood). There is no doubt that the Convention has an almost impossible goal: how to ensure that a state, which does not recognise that it has committed wrongful acts under international law, is made to pay compensation/reparation. While the CoE should be lauded for trying, arguably the end result has several weak points and inconsistencies.-

[1] Note that in the text of the Draft Convention Establishing an International Claims Commission for Ukraine dated 22 October 2025 on the CoE website the words ‘Article 30’ do not appear.