The Effective Control Test: What Can Arbitral Tribunals Rely On in Relation to the Temporarily Occupied Territories of Ukraine? - ARIA - Vol. 34, No. 2

Henriietta Yaitska is an Associate of International Arbitration at Sayenko Kharenko. She graduated from Taras Shevchenko National University of Kyiv and holds a Masters in International Law.

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Originally from The American Review of International Arbitration (ARIA)

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Some may think that the act of seizing sovereign state territories ceased to happen once the United Nations Charter prohibiting the threat or use of force against the territorial integrity of any state was adopted. Yet, the Russian Federation’s annexation of Crimea and the occupation of several parts of the Donetsk and Luhansk regions of Ukraine, followed by the 2022 Russian full-scale invasion of Ukraine, show that some states still elect to prove their power by occupying and imposing control over another state’s territory. As hybrid warfare—where an occupying power wears the façade of a law-abiding international player—gradually becomes popular, examining an occupying power’s degree of control is of crucial importance in holding it internationally responsible for wrongful acts.

One tool to assess the degree of control a foreign state has over some non-state actors is the “effective control test,” first elaborated by the International Court of Justice (“ICJ”) in Nicaragua v. USA. The effective control test aims to determine whether the actions of an armed group can be attributed to a particular state, requiring such armed group to operate on the instruction, or at the direction of, the foreign state. If the requirement is met, the armed group’s acts can be attributed to the foreign state, leading to the latter’s international responsibility.

The Russian Federation’s annexation of Crimea and occupation of certain parts of the Donetsk and Luhansk regions of Ukraine (the “Donbass region”) resulted in its ability to exercise power, authority, and jurisdiction over these territories. Given these circumstances, effective control over the temporarily occupied territories transferred from Ukraine—the state having lost control over the occupied sovereign territories—to Russia, the occupying power. The key question lies in the exact date of transfer of effective control from one state to another for the purposes of determining international responsibility.