Letter to the ICJ | Russia v. Thailand

[Jay]

Минюст России Ministry of Justice​

AUTHENTIC COMMUNIQUE OF THE OFFICE OF FOREIGN AFFAIRS Security Clearance: Secure and Encrypted​

[Recipient]: Clerk of the Office for the International Court of Justice < Global Assembly > [Sender]: Minister of Justice, Russian Federation < NAShayk@MOJ.ru.gov > [Subject]: Reques for legal proceedings against Thailand

May it please the court, To the Honorable Registrar of the Court To the Registrar of the International Court of Justice, the undersigned, being duly authorized by the Government of the Russian Federatin, state as follows: In accordance with Articles 10 and 12 of the Statute of the Court and Article 14 of the Rules of Court, I have the honour to submit this Application instituting proceedings in the name of the Russian Federation (“Russia”) against the Republic of Thailand (“Thailand”). Pursuant to Article 14 of the Statute, the Application includes a request that the Court provide financial compensation. Introduction​ Pursuant to the provisions delineated in the statute of the International Court of Justice (ICJ), the Russian Federation, a sovereign state located in Eurasia, as provided by Article 10, brings suit against the Republic of Thailand, a sovereign state located in Southeast Asia, as provided by Article 10 of the Court’s statute. Pursuant the aforementioned Article, the Russian Federation requests the Court to apply its jurisdiction to this case submitted by Russia, in asking the Court to provide relief to the Russian Federation for Thailand’s wanton disregard for its international commitments. The Russian Federation has in the interest of the Court, attempted multiple times to resolve this dispute using non-legal means and has been faced with persistent Thai efforts to undermine if not outright reject diplomatic mediation. Upon learning the existence of a potential breach of Rosoboirnexport’s terms the following correspondence was initiated by the CFO of the company, the Thai Government despite a warning issued, by Rosoboronexport asking it not to proceed it the illegal sale chose to ignore the warning, proceed with the sale, and use the abuse the ICJ's proceedings to cover its illegal action. In the following transaction, Thailand finalized the sale despite Canada not wishing to proceed with the sale. Despite all this, the ICJ's advisory opinion affirmed Rosoboronexport's position, and despite this Thailand has failed to rectify the issue. The Russian Federation firmly believes Thailand's wanton disregard over this very serious issue to be of serious concern. The Russian Federation issued a final warning, ordering that should a meeting be held 30 days from the delivery of this letter, the Russian Federation will raise legal challenges to the ICJ and seek a binding opinion. Thailand’s response was to decline this communication despite Russia maintaining it own encryption standard and demanded Russia use Thai encryption instead. Given Thailand’s poor record on respect for international law, persistent efforts to abuse the court’s proceedings, and the fact that this dispute is over Thailand’s violation of Russia’s export laws as well as Rosnoborneexport’s terms and conditions, the most appropriate entity to pursue this action is the Russian Federation. The initiation of this litigation underscores Russia's commitment to seeking a just and lawful resolution to the matter at hand. Article 10 of the Court’s statutes provides that “the Court may settle disputes between corporations, states, individuals or any combination of these three in the event the case resolves around an international dispute.” Russia's right to intervene on behalf of Rosnobornexport​ The Russian Federation, not Rosnoborneexport, has the power in accordance to the Russian Constitution, to handle matters of foreign affairs to which the sale of arms and maintenance of end-user monitors lay. Rosnoborneexport, as the competent private body created by Russian law, is entrusted with carrying out Russia’s defense export policies. According to this interest, Rosnoborneexport has been the main channel for foreign exports to which Thailand is accustomed. Nonetheless, the ultimate authority to which exports are responsible is the Federal Government of Russia and as such it is Russia’s inherent right to intervene and take legal action on behalf of its corporate entities, incorporated inside Russia, where they lack the means to do so. Furthermore it is the right of the Federal Government of Russia to seek legal remedies when its export or commercial laws are violated by foreign actors inside a court of justice. In line with Article 12, the Court has the power to, should circumstances require, issue provisional measures to preserve the respective rights of a party pending a final decision, and pursuant to Article 14 the Court has the power to impose financial sanctions or provide financial relief to the aggrieved party. Pursuant to Article 14 the Russian Federation seeks to recover financial compensation for the loss of business and lost profits as a result of Thailand's actions to defraud Rosoboronexport and to receive punitive damages to deter further action in light of Thailand's wanton disregard to every effort to resolve this issue. In response to Russia’s effort to mediate the dispute, Thailand’s government argued this is a dispute between Russia and RTRAF, a Thai corporate entity which was authorized to carry out the illegal commercial act. The Russian Federation views that Thailand's government is the primary actor in this regard, not RTRAF Sales Authority. RTRAF, as a commercial body, was not the purchaser of the 10 Gepard-Class Ships, herein referred to as Gerpard Ships. Furthermore, Thailand brought the legal action to the ICJ for an advisory opinion not RTRAF. Furthermore, the ships were in service with the Thai Navy, and for the purposes of Russia's Government's determination, it was the Thai Government that violated Russia's export control laws. As such whether Thailand assigned the illegal sale to the Thai Navy, the Thai Commerce Ministry, or a private or semi-private entity it would be irrelevant from the perspective of the law. The purchaser of the equipment was the Thai Government and they are ultimately liable for its use, not the entity which operates or re-exports it illegally. Lastly, Thailand as a state invoked sovereign rights, not RTRAF, which does not have that right, and wantonly attempted to justify its actions under the guise of state sovereignty and political autonomy. For the aforementioned reasons, it is clear that Thailand has actively participated in operations against JSC Rosoboronexport from the beginning. This distinction is crucial as the Russian Federation holds the Thai Government as the purchaser of the Gerpard Ships responsible for the breach, violation, and wanton disregard for Russian law and its corporation's terms and conditions. For aforementioned, it is crucial that the Court recognize that Thailand indeed is the responsible party, that any additional liability, to a third party, is of direct extension of Thailand's original liability, that Russia is entitled to take legal measures against the Thai State in accordance with the Court's rulings. The Russian Government for these reasons, given that JSC Rosonbornexport has no diplomatic capacity of its own, and that the dispute is Thailand's wanton violation of Russia's export laws as expressed through Rosoboronexport terms and conditions, shall be responsible for pursuing potential legal action, diplomatic discussions, and other actions pursuant to Russia's constitutional powers. Thailand's violations of Terms and Conditions​ The Republic of Thailand had a right, like every nation, to speak privately with Rosoboronexport, and request permission to "sell, trade/exchange, or donate/give away purchased equipment," and even to raise complaints to the Russian Government and request relief through the Russian Legal System wherein there is dispute. Thailand was entitled should it have felt that the Russian Legal System was inadequate to raise this concern before an international commercial court and once discussions were held to address whether Russia's legal system was inadequate and if the court felt that there was an error in the judgment of the Russian Courts to re-evaluate that. Indeed, in many cases, foreign litigants prefer to engage in international arbitration to provide a binding award when drafting such terms. Nonetheless, Thailand never undertook these measures and instead continued with the illegal transfer of Russian equipment to the Kingdom of Canada. When Rosoboronexport authorities became aware of RTAF Sale Authorities' illegal activities to the resale of Russian defense equipment, Rosoboronexport did the appropriate thing and contacted Thailand’s Defense Ministry. Instead of stopping the illegal sale pending the outcome of the talks, the Thai Government empowered RTAF to pursue the sale. Not only did Thailand refuse to accept Rosobornoexport's genuine attempt to resolve the issue, once Canada found out the potential sale was illegal, rejecting the sale, Thailand forcefully delivered the ships, armed with weapons and trained crew to penetrate Canada's territorial waters and forcefully complete the sale. This was the direct policy of the Thai Government; in the following communications between Thailand and the Canadian Government, the sales authority asked if the Canadian Government if they wish for the ships to be decommissioned to allow for the transfer of the ships earlier. Thailand knew, and willingly advertised, that the ship was in a combat capacity and has previously been used in various activities. The Thai Government pursued unlawful means of defrauding the Rosoboronexport through arguing the wording of the terms and conditions was “ambiguous” where it was not. In so doing, the Thai Government willfully attempted to defraud Rosnobornoexport and perpetrated three violations of Russia’s export laws as expressed in Rosnobornoexport’s terms and conditions and were themselves a reflection of Russia’s export laws. Not only did Thailand attempt to defraud Rosnobornoexport, it also attempted to conspire with other foreign nations to undermine Russia’s sovereignty by building diplomatic support to its baseless assertion that “equipment” was ambiguous. The basis of Contra Proferentem, which, has been to protect the less risk-averse side in formulating the contract to reduce the cost of the transaction and avoid the less risk-adverse draft from refraining from manipulating the other side in the contract. Taking this principle, Thailand misappropriates the view, wherein Thailand attempted to manipulate the terms of the document to mean something wholly different to what it was intended. In such a scenario, the Court should have constructed the alleged ambiguous terms against the party attempting to manipulate the terms against the other party. Irrespective, even if the Court rejects this view, the Court adopted the view in its advisory opinion that “in this matter, the question as to how to understand ‘equipment’ hereby relates to ‘purchased equipment’ as per the terms of service.” It affirmed that the Gepard-class frigates purchased by Thailand from Rosoboronexport fell within this category. Thailand acceded to the terms and conditions when Minister of Defense Supachai Panichpak purchased ten Russian build Gepard-class frigates. The deal, signed on 1999-08-07 by Supachai Panichpak included him agreeing to the terms of service. The terms read as follows: Rosoboronexport will not nor possesses the rights to sell any shares of any Russian company nor will they or possess the rights to sell or give domestic production rights of Russian equipment. To do so please contact the Russian government for authorization. Rosoboronexport does not take credit for how the equipment sold is used. Rosoboronexport sells all products with the intentions that they are used only for deterrence, humanitarian, and defensive purposes and that they remain approved by international law and GA charters. Nations and partners who purchase from Rosoboronexport cannot sell, trade/exchange, or donate/give away purchased equipment to third parties without expressed permission by Rosoboronexport. Nations and partners who purchase from Rosoboronexport cannot upgrade purchased equipment nor use purchased equipment for their own technological engineering without expressed permission by Rosoboronexport. Rosoboronexport holds the right to deny any purchase without given reason. Rosoboronexport holds the right to change listed prices and products at any moment. Rosoboronexport holds the right to withdraw maintenance licenses if sold products are used for actions against Russia and her allies or if used equipment is used in ways that go against GA charters. Rosoboronexport holds the right to keep the payment and deny delivery of equipment purchased if the terms of service are broken by the client. All products are subject to 20%. Prayer of Relief​ The Russian Federation seeks to recover financial damages against Thailand for violations of JSC Rosoboronexport's terms and conditions, which were a reflection of Russia's arms export laws. Nations and partners who purchase from Rosoboronexport cannot sell, trade/exchange, or donate/give away purchased equipment to third parties without express permission by Rosoboronexport. Rosoboronexport does not take credit for how the equipment sold is used. Rosoboronexport sells all products with the intention that they are used only for deterrence, humanitarian, and defensive purposes and that they remain approved by international law and GA charters On the matter of usage terms, Rosoboronexport is unambiguous in its designation of defense sales. All items purchased from Rosoboronexport are export items and can not be construed as otherwise. How end-users use, designate, or determine what the end product is, should be irrelevant. Thailand's actions to were to defraud Rosoboronexport at the tune of $3,000,000,000.00 for the resale of the Gepard-class ships. As such for violation of the 1st term, the Russian Federation is seeking the full value of the ship at the cost of $3,100,000,00.00. In the alternative, Russia requests the costs of the ships as sold, $3,000,000,000.00. On the use of Russian equipment to violate Canada's sovereignty in direct contravention of the defensive purpose and the GA's charter. The Russian Federation requests restitution for this damage at the cost of $100,000,000.00 per ship for a total recoverable damage of $1,000,000,000.00. In this context, punitive damages play a pivotal role in reinforcing the sanctity of international law and the principles outlined in the General Assembly charters. By seeking substantial restitution, the Russian Federation aims to not only compensate for the damage caused but also to affirm the global consensus that military equipment should be utilized in a manner consistent with established norms and legal frameworks. This argument aligns with the broader public policy goal of maintaining a world order where nations respect each other's sovereignty and refrain from actions that could escalate tensions or lead to armed conflicts. The substantial punitive damages sought serve as a tangible expression of disapproval for actions that contravene the principles of defensive use and violate the foundational charters of international organizations. These punitive damages will allow Russia to financial recover its ships from Canada at a reasonable amount. Russia reserves its right to request provisional measures to prevent irreparable harm to the rights at issue in this case, and/or to prevent further aggravation of the dispute between theparties, should they become necessary, during the course of these proceedings. Russia reserves the right to revise, supplement, or amend the terms of this application, as well as the grounds invoked. Russia has designated His Excellency Ambassador Vladimir Tarabin, Ambassador Extraoridnary and Plenipotentiary of the Russian Federation to the Kingdodm of the Netherlands as its point of contact. I have the honor to assure the Court of my highest esteem and consideration, Alyona Arshinova Minister of Justice Russian Federation

 

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