On 16 January 2017, Ukraine filed in the Registry of the International Court of Justice (ICJ) an application instituting proceedings against Russia, accused of arming rebels in eastern Ukraine and restricting the rights of ethnic Tartars and other minorities following its annexation of Crimea.
Ukraine alleged violations by Russia of its obligations under two international treaties ratified by both countries: on the one hand, the International Convention for the Suppression of the Financing of Terrorism of 1999 (ICSFT) and, on the other hand, the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 (CERD). In its application, Ukraine seeks to found the jurisdiction of the ICJ respectively on Article 24, paragraph 1, of the ICSFT and on Article 22 of CERD.
Russia responded on 12 September 2018 by raising five preliminary objections concerning the jurisdiction of the ICJ and the admissibility of the application.
In its Judgment of 8 November 2019, which is final, without appeal and binding on the Parties, the ICJ begins by explaining that the proceedings were instituted by Ukraine following the events which occurred in eastern Ukraine and in Crimea from the spring of 2014. Regarding the events in eastern Ukraine, the Applicant has brought proceedings only under the ICSFT and Regarding the situation in Crimea, Ukraine’s claims are based solely upon CERD.
Rejecting Russian objections, the ICJ judges found the Court can consider Ukraine’s claims under the International Convention for the Suppression of the Financing of Terrorism. Accusing Russia of supporting pro-Russian separatist rebels, Ukraine has alleged in its application, that Russia supplied funds, weapons and training to illegal armed groups engaged in acts of terrorism in its territory. Relatedly, that Russia also allegedly caused or supported the July 2014 downing of Malaysia Airlines Flight MH17, which was shot out of the sky over eastern Ukraine on 19 July 2014, killing all 298 passengers and crew on board. Russia has always denied involvement in the downing of the plane, but an international investigation has charged three Russians and a Ukrainian with murder over their suspected role in the deadly missile attack.
Moreover, the ICJ judges also decided the Court could move ahead on Ukraine’s claims concerning violation of the International Convention on the Elimination of All Forms of Racial Discrimination. In its application, Ukraine has also accused Russia of discrimination and mistreatment of Crimean Tartar and ethnic Ukrainian communities on the Crimean Peninsula, which was annexed by Russia in 2014.
In an Order on provisional measures of 2017, the ICJ ordered Russia to stop limiting "the ability of the Crimean Tatar community to conserve its representative institutions", to “Ensure the availability of education in the Ukrainian language”, and asked both parties to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” However, in the same ruling, the ICJ rejected Ukraine's request for measures aimed at blocking Russian support for rebels in eastern Ukraine, saying it did not provide enough evidence to back up its claim that Moscow sponsored terrorism by funding and arming the rebels.
While there was no immediate reaction from Russia to the judgment of the ICJ on preliminary objections, Ukraine's deputy foreign minister Olena Zerkal told reporters outside the Court that: "This is a great victory for Ukraine but not only for Ukraine. I think this is a victory of the rule of law”; "Russia will be accountable and will have to present their opinion and their views and could not avoid accountability for all violations".
The present ruling is limited to the issue of jurisdiction and did not address the merits of Ukraine's complaints in the case.
Application of the International Convention for
the Suppression of the Financing of Terrorism and of the International
Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v.
Russian Federation)
The Court finds that it has jurisdiction to
entertain the claims made by Ukraine and that the Application in relation to
those claims is admissible
THE HAGUE, 8 November 2019. The International
Court of Justice (ICJ), the principal judicial organ of the United Nations, has
today delivered its Judgment on the preliminary objections raised by the
Russian Federation in the case concerning Application of the International Convention
for the Suppression of the Financing of Terrorism and of the International
Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v.
Russian Federation).
In its Judgment, which is final, without appeal
and binding on the Parties, the Court
(1) rejects, by thirteen votes to three, the
preliminary objection raised by the Russian Federation that the Court lacks
jurisdiction on the basis of Article 24, paragraph 1, of the International
Convention for the Suppression of the Financing of Terrorism;
(2) finds, by thirteen votes to three, that it
has jurisdiction on the basis of Article 24, paragraph 1, of the International
Convention for the Suppression of the Financing of Terrorism, to entertain the
claims made by Ukraine under this Convention;
(3) rejects, by fifteen votes to one, the
preliminary objection raised by the Russian Federation that the Court lacks
jurisdiction on the basis of Article 22 of the International Convention on the
Elimination of All Forms of Racial Discrimination;
(4) rejects, unanimously, the preliminary
objection raised by the Russian Federation to the admissibility of the
Application of Ukraine in relation to the claims under the International Convention
on the Elimination of All Forms of Racial Discrimination;
(5) finds, by fifteen votes to one, that it has
jurisdiction, on the basis of Article 22 of the International Convention on the
Elimination of All Forms of Racial Discrimination, to entertain the claims made
by Ukraine under this Convention, and that the Application in relation to those
claims is admissible.
History of the proceedings
On 16 January 2017, Ukraine filed in the
Registry of the Court an Application instituting proceedings against the
Russian Federation with regard to alleged violations by the latter of its obligations
under the International Convention for the Suppression of the Financing of
Terrorism of 9 December 1999 (the “ICSFT”) and the International Convention on
the Elimination of All Forms of Racial Discrimination of 21 December 1965
(“CERD”). In its Application, Ukraine seeks to found the Court’s jurisdiction
on Article 24, paragraph 1, of the ICSFT and on Article 22 of CERD. On 12
September 2018, the Russian Federation raised preliminary objections to the jurisdiction
of the Court and the admissibility of the Application.
Reasoning of the Court
The Court explains that the present proceedings
were instituted by Ukraine following the events which occurred in eastern
Ukraine and in Crimea from the spring of 2014. With regard to the events in
eastern Ukraine, the Applicant has brought proceedings only under the ICSFT.
With regard to the situation in Crimea, Ukraine’s claims are based solely upon
CERD.
1. THE INTERNATIONAL CONVENTION FOR THE
SUPPRESSION OF THE FINANCING OF TERRORISM
The Court begins by examining whether the
dispute relating to the events in eastern Ukraine is one which it has
jurisdiction ratione materiae to entertain under Article 24, paragraph 1, of
the ICSFT. In accordance with its relevant jurisprudence on the matter, it
recalls that, to determine its jurisdiction ratione materiae under a
compromissory clause concerning disputes relating to the interpretation or
application of a treaty, it is necessary to ascertain whether the acts of which
the Applicant complains “fall within the provisions” of the treaty containing
the clause. This may require the interpretation of the provisions that define
the scope of the treaty. The Court states however that, at the present stage of
the proceedings, an examination by it of the alleged wrongful acts or of the
plausibility of the claims is not generally warranted. Its task consists in
considering the questions of law and fact relevant to the objection to its
jurisdiction.
The Court first considers the scope of
obligations under the ICSFT. It notes in this regardthat the ICSFT applies to
offences committed by “any person”, i.e. both individuals acting in a private
capacity and those who are State agents. It is of the view that, while the
commission by a State official of an offence does not in itself engage the
responsibility of the State concerned under the Convention, the States parties
to the ICSFT are under an obligation to take appropriate measures and to
co-operate in the prevention and suppression of offences of financing acts of terrorism
committed by whichever person. Should a State breach such an obligation, its responsibility
under the Convention would arise. The Court observes that the ICSFT
specifically concerns the support given to acts of terrorism by financing them.
The Convention refers to the provision or collection of “funds”. The Court
notes that since no specific objection to the Court’s jurisdiction was made by
the Russian Federation with regard to the scope of the term “funds”, this issue
relating to the scope of the ICSFT need not be addressed at the present stage
of the proceedings. The Court adds that an element of an offence under the
Convention is that the person concerned has provided funds “with the intention
that they should be used or in the knowledge that they are to be used” to commit
an act of terrorism. In its view, the existence of the requisite intention or
knowledge raises complex issues of law and especially of fact that divide the
Parties and are properly a matter for the merits. The same may be said of the
question whether a specific act is an act of terrorism within the meaning of
the Convention. In light of the above, the Court concludes that the objection
raised by the Russian Federation to its jurisdiction ratione materiae under the
ICSFT cannot be upheld.
The Court then examines whether the procedural
preconditions set forth in Article 24, paragraph 1, of the ICSFT have been
fulfilled. It observes that, in order to meet the first precondition, namely
that the dispute between the Parties could not be settled through negotiation within
a reasonable time, a genuine attempt must have been made to settle the dispute
through negotiation and that attempt must have failed to produce results within
a reasonable time. It notes that diplomatic exchanges relating to the
subject-matter of the dispute currently before it took place between the
Parties, but that little progress was made by them during their negotiations.
It thus concludes that the first precondition is met. As regards the second
precondition concerning the organization of an arbitration, the Court notes
that negotiations concerning the organization of an arbitration were held, but
that the Parties were unable to reach an agreement within six months. It therefore
concludes that the second precondition is also met. Accordingly, the Court
considers that the procedural preconditions set forth in Article 24, paragraph
1, of the ICSFT have been fulfilled. It thus has jurisdiction to entertain the
claims made pursuant to that provision.
2. THE INTERNATIONAL CONVENTION ON THE ELIMINATION
OF ALL FORMS OF RACIAL DISCRIMINATION
The Court then turns to the question whether
the dispute relating to the events in Crimea is one which it has jurisdiction
ratione materiae to entertain under Article 22 of CERD. In particular, it
considers whether the measures of which Ukraine complains “fall within the
provisions” of that Convention. In this respect, the Court notes that both Parties
agree that Crimean Tatars and ethnic Ukrainians in Crimea constitute ethnic
groups protected under CERD. Taking into account the broadly formulated rights
and obligations contained in the Convention, the Court considers that the measures
of which Ukraine complains restrictions allegedly imposed on Crimean Tatars and
ethnic Ukrainians in Crimea are capable of having an adverse effect on the
enjoyment of certain rights protected under CERD. These measures thus fall
within the provisions of the Convention. The Court concludes that the claims of
Ukraine fall within the provisions of CERD.
Next, the Court examines whether the procedural
preconditions set out in Article 22 of CERD, namely that the dispute has “not
[been] settled by negotiation or by the procedures expressly provided for in
this Convention”, are met. It begins by considering whether those conditions
are alternative or cumulative in character. As regards the text of Article 22,
the Court is of the view that while the word “or” may be interpreted
disjunctively and envisage alternative procedural preconditions, this is not
the only possible interpretation. Turning to the context of Article 22, the
Court notes that “negotiation” and the “procedures expressly provided for in
[the] Convention” are two means to achieve the same objective, namely to settle
a dispute by agreement. It follows that should negotiation and the CERD
Committee procedure be considered cumulative, States would have to try to
negotiate an agreed solution to their dispute and, after negotiation has not
been successful, take the matter before the CERD Committee for further
negotiation, again in order to reach an agreed solution. The Court considers
that the context of Article 22 of CERD does not support this interpretation.
Lastly, the Court turns to the object and purpose of the Convention, in light
of which Article 22 must be interpreted. It observes that the Convention aims
to eradicate all forms of racial discrimination effectively and promptly. The
achievement of such aims could be rendered more difficult if the procedural
preconditions under Article 22 were cumulative. The Court concludes that
Article 22 imposes alternative preconditions to the Court’s jurisdiction. Since
the dispute between the Parties was not referred to the CERD Committee, the
Court examines only whether the Parties attempted to negotiate a settlement to
their dispute.
The Court observes that the negotiations
between the Parties, which related to the subject-matter of the dispute before
it, lasted for approximately two years and included both diplomatic
correspondence and face-to-face meetings, which, in the Court’s view, and
despite the lack of success in reaching a negotiated solution, indicates that a
genuine attempt at negotiation was made by Ukraine. The Court thus concludes
that the negotiations between the Parties had become futile or deadlocked by
the time Ukraine filed its Application under Article 22 of CERD. Accordingly,
the Court concludes that the procedural preconditions set out in Article 22 of
CERD are satisfied. As a result, it has jurisdiction to consider the claims
made under that provision.
Lastly, the Court turns to the objection raised
by the Russian Federation to the admissibility of Ukraine’s Application with
regard to claims under CERD on the ground that Ukraine did not establish that
local remedies had been exhausted before it seised the Court. The Court recalls
that local remedies must be previously exhausted as a matter of customary
international law in cases in which a State brings a claim on behalf of one or
more of its nationals. The Court is of the view that, in filing its
Application, Ukraine does not adopt the cause of its nationals, but challenges,
on the basis of CERD, the alleged pattern of conduct of the Russian Federation
with regard to the treatment of the Crimean Tatar and Ukrainian communities in
Crimea. It thus concludes that the rule of exhaustion of local remedies does
not apply in the circumstances of the present case. It finds that the Russian
Federation’s objection to admissibility must be rejected.
Composition of the Court
The Court was composed as follows: President
Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade,
Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Salam, Iwasawa; Judges
ad hoc Pocar, Skotnikov; Registrar Gautier.
*
Vice-President XUE appends a dissenting opinion
to the Judgment of the Court; Judges TOMKA and CANÇADO TRINDADE append separate
opinions to the Judgment of the Court; Judges DONOGHUE and ROBINSON append
declarations to the Judgment of the Court; Judge ad hoc POCAR appends a
separate opinion to the Judgment of the Court; Judge ad hoc SKOTNIKOV appends a
dissenting opinion to the Judgment of the Court.
Not sure that Russia will agree to appear before the Court...
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