E-Paper
Will ICJ’s provisional measures extend any relief to Ukraine?
If ICJ does grant provisional measures sought by Ukraine and Russia fails to comply, the former will have the option of approaching UNSC
Against the backdrop of an attack by Russia, Ukraine turned to the International Court of Justice (ICJ) on February 27 and asked the court to hold Moscow accountable for its actions. Ukraine emphatically denied that any act of genocide has occurred in Luhansk and Donetsk or elsewhere in the country, and that Russia has any lawful basis to take action in and against Ukraine for the purpose of preventing and punishing genocide, as alleged by Russia. However, as Russia does not recognise the compulsory jurisdiction of ICJ, the only possibility for bringing the action before ICJ available to Ukraine was to rely upon a treaty that provides for the possibility of judicial settlement in ICJ and has been ratified by both the parties.
Given that both Ukraine and Russia are parties to the Genocide Convention of 1948, Ukraine has used Article IX of the Convention along with Article 36(1) of the ICJ Statute as the ground for its action before ICJ. Article IX of the genocide convention gives powers to ICJ to decide “disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention”.
Ukraine is seeking provisional measures to protect its rights so that it is not exposed to the false claims of genocide made by Russia. The requested measures include the immediate suspension of the military operations commenced by Russia on February 24 and no steps in furtherance of any military operations.
This is not the first time that Ukraine has approached ICJ against Russia. This case follows three other (pending) proceedings brought by Ukraine in relation to events in the Crimea region in 2014. Two cases are arbitrations under Annex VII of United Nations Convention on the Law of the Sea (“UNCLOS”), while the third is before ICJ.
In 2017 also, Ukraine initiated proceedings against Russia at ICJ on the basis of two international treaties: The International Convention on the Elimination of All Forms of Racial Discrimination (CERD), with regard to Crimea; and the International Convention for the Suppression of the Financing of Terrorism (ICSFT), with regard to Donbas. Under CERD, Ukraine alleged that Russia had carried out a policy of cultural eradication of ethnic Ukrainians and Crimean Tatars in Crimea, including enforced disappearances, no education in the Ukrainian and Crimean Tatar languages, and the ban of the Mejlis, the main representative body of the Crimean Tatars.
Under the ICSFT, Ukraine alleged that Russia had supported terrorism by providing funds, weapons and training to illegal armed groups in eastern Ukraine. Both these treaties are binding upon Ukraine and Russia and enable an individual State party to refer a dispute concerning them to ICJ. In its judgment of November 8, 2019, on the Application of ICSFT and of CERD, ICJ found that it does have the jurisdiction to hear Ukraine’s complaints about Russia violating its obligations under both the treaties and went on to grant some provisional measures against Russia.
The judgment constitutes a stepping stone for Ukraine as it represented a partial triumph for the country as part of a broader dispute with Russia. In the case ICJ disagreed with Russia’s submission that Ukraine had to resort to both the negotiations and to the CERD Committee. The court clarified for the first time that these procedures under CERD are two ways of achieving the similar goal, and, therefore, alternative and not cumulative. ICJ further said that requiring states to use both procedures before reaching ICJ would undermine the very purpose of CERD, which is to promptly eliminate racial discrimination.
Coming to the current case filed by Ukraine against Russia, there is all probability that ICJ will grant provisional measures as requested by Ukraine seeing the urgency and gravity of the situation. The next step may even be more cumbersome for Ukraine. The ICJ Statute does not contain any provisions on the methods of enforcing the judgment or ensuring its observance. In all practicality, compliance is left to the state under Article 94 of the UN Charter. At the same time, the UN Charter does consider the scenario where a state fails to comply with ICJ’s judgment under Article 94(2).
In that scenario the UN Security Council may be approached by the other party. So, in the event that ICJ does grant provisional measures sought by Ukraine and Russia fails to comply, Ukraine will have the option of approaching UNSC over it. Given that Russia has a permanent seat in UNSC, which carries veto power, Russia may have the upper hand finally. Whether the provisional measures granted by ICJ in 2019 have been obligated by Russia is also somewhat obscure. Nevertheless, the ICJ hearings and the approach of the court towards both the countries in Ukraine v. the Russian Federation, will be something to look forward to.
Jyoti Singh is a Delhi-based advocate
The views expressed are personal
