Ukraine v Russia

• Jurisdiction: Derecho Internacional
• Judge: Yusuf,Xue,Tomka,Abraham,Bennouna,Cançado Trindade,Donoghue,Gaja,Sebutinde,Bhandari,Robinson,Crawford,Salam,Iwasawa,Pocar,Skotnikov
• Judgment Date: 08 November 2019
• Court: International Court of Justice

International Court of Justice

Preliminary Objections.

(Yusuf, President; Xue, Vice-President; Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Salam, Iwasawa, Judges; Pocar, Skotnikov, Judges ad hoc)

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

and

Russian Federation)1

International Court of Justice — Jurisdiction — Subject-matter of dispute — Jurisdiction ratione materiae under International Convention for the Suppression of the Financing of Terrorism, 1999 (“ICSFT”) — Whether Court having to establish plausibility of claims of Ukraine — Interpretation of Article 2 of ICSFT — Whether ICSFT applying to terrorism financing by State officials — Meaning of “funds”, “knowledge”, “intention” and “purpose” matters for merits — Whether Parties having negotiated a settlement before filing the case — Whether Parties having endeavoured to organize arbitral proceedings for six months before filing the case

International Court of Justice — Jurisdiction — Jurisdiction ratione materiae under International Convention on the Elimination of All Forms of Racial Discrimination, 1966 (“CERD”) — Whether acts of which Ukraine complains constituting “discrimination” within meaning of Article 1 of CERD matter for merits — Whether rights invoked by Ukraine protected under CERD — Alternative or cumulative character of preconditions under Article 22 of CERD — Whether Ukraine making a genuine attempt to find a negotiated solution before filing the case — Admissibility of claims under CERD — Whether rule on exhaustion of local remedies applicable — Diplomatic protection — Alleged existence of a sustained campaign of racial discrimination

Terrorism — Treaties — Interpretation — Scope — International Convention for the Suppression of the Financing of Terrorism, 1999 (“ICSFT”) — Vienna Convention on the Law of Treaties, 1969 — Interpretation of Article 2 of ICSFT — Whether ICSFT applying to terrorism financing by State officials — Meaning of “funds”, “knowledge”, “intention” and “purpose” matters for merits — Whether Court having jurisdiction to entertain Ukraine's claims under ICSFT — Whether preliminary objection to be upheld

Human rights — Treaties — Interpretation — Scope — International Convention on the Elimination of All Forms of Racial Discrimination, 1966 (“CERD”) — Whether acts of which Ukraine complains constituting “discrimination” within meaning of Article 1 of CERD matter for merits — Whether rights invoked by Ukraine protected under CERD — Interpretation of Article 22 of CERD — Alternative or cumulative character of preconditions — Whether Ukraine making a genuine attempt to negotiate settlement of dispute — Whether Court having jurisdiction to entertain Ukraine's claims under CERD — Whether preliminary objection to admissibility of Ukraine's claims to be upheld

Summary:2The facts:—On 16 January 2017, Ukraine filed with the International Court of Justice (“the Court”) a unilateral application against the Russian Federation, in a dispute concerning alleged activities in Crimea and eastern Ukraine. Ukraine maintained that the Court's jurisdiction was

founded on Article 24(1) of the International Convention for the Suppression of the Financing of Terrorism, 19993 (“ICSFT”), and Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination, 19664 (“CERD”). On 16 January 2017, Ukraine also filed a request for provisional measures in accordance with Article 41 of the Court's Statute. The Court handed down its Order on provisional measures on 19 April 2017.5

The Russian Federation raised objections to the Court's jurisdiction both under the ICSFT and under CERD, and an objection to the admissibility of Ukraine's claims under CERD.

While Ukraine submitted that the dispute concerned compliance by the Russian Federation with its obligations under the treaties invoked, the Russian Federation argued that the dispute really concerned alleged violations of international humanitarian law in eastern Ukraine and the status of Crimea.

Concerning jurisdiction under the ICSFT, the Russian Federation contended that Ukraine had failed to provide evidence with respect to the elements of intention, knowledge and purpose to show that its claims fell within the provisions of the ICSFT. The Russian Federation added that the ICSFT did not apply to State officials and stated that the Court was called upon fully to interpret the terms of Article 2 of the ICSFT at this stage of the proceedings. Ukraine replied that the Court could not address, at this stage, issues which were properly matters for the merits, as the Court had to take the facts presented by Ukraine as established for jurisdictional purposes. In any case, Ukraine argued that the evidence provided showed that offences had been committed within the meaning of Article 2 of the ICSFT. According to Ukraine, fully interpreting the terms of Article 2 was a matter for the merits, but that those terms should be given a broad meaning. Ukraine stated that the ICSFT also applied to the acts of State officials.

The Russian Federation maintained that there had been no genuine attempt by Ukraine to achieve a negotiated solution before filing the case with the Court, as required under Article 24(1) of the ICSFT. The Russian Federation added that Ukraine had not attempted to set up an arbitration as required under that provision, instead insisting on the case being referred to an ad hoc chamber of the Court. Ukraine argued that the Parties had negotiated for over two years, both by letters and in person. Moreover, Ukraine stated that it had specifically requested the Russian Federation to start arbitral proceedings, giving the Court's ad hoc chamber only as an alternative.

Concerning CERD, the Russian Federation contended that the measures of which Ukraine complained were not based on any of the grounds under Article 1(1) of that Convention; it argued that, conversely, such measures fell

within Article 1(2) and (3) of CERD and were thus lawful. The Russian Federation also maintained that certain rights invoked by Ukraine were not protected under CERD. Ukraine replied that the measures of which it complained fell within the definition of racial discrimination under CERD, adding that the rights to which its Application referred were protected under CERD.

The Russian Federation submitted that Article 22 of CERD had to be interpreted to entail that the two procedural preconditions thereunder were cumulative; it added that Ukraine had not satisfied such preconditions before filing its Application. Ukraine responded that the correct interpretation was that the two preconditions were alternative and, although it admitted that the CERD Committee had not been seized, Ukraine also stated that the Parties had endeavoured to find a negotiated solution to their dispute.

Finally, the Russian Federation argued that Ukraine had made its claims under CERD on behalf of individuals, which entailed that the rule on exhaustion of local remedies applied. The Russian Federation contended that, in the circumstances, Ukraine had not exhausted local remedies, and its claims under CERD were therefore inadmissible. Ukraine maintained that its claims under CERD concerned injury caused to the rights it held as a State, which entailed that the rule on exhaustion of local remedies did not apply in the circumstances.

Held:—(1) (by thirteen votes to three, Vice-President Xue, Judge Tomka and Judge ad hoc Skotnikov dissenting) The objection to the Court's jurisdiction under the ICSFT was rejected; the Court had jurisdiction to entertain Ukraine's claims under that Convention.

(a) The ICSFT had to be interpreted pursuant to Articles 31–3 of the Vienna Convention on the Law of Treaties, 1969. At the preliminary objections stage, the Court considered questions of law and fact relevant to the objection to jurisdiction. The financing of terrorism by States was not addressed in the ICSFT and was outside the scope of the treaty. However, if a State breached its obligations under the ICSFT, it would be responsible for such a breach. The term “any person” in Article 2 of the ICSFT meant that terrorism financing offences could be committed both by private individuals and by State officials. The interpretation of “funds” and the existence of the requisite mental elements could be relevant at the merits stage of the proceedings (paras. 57–63).

(b) Between 2014 and 2016, the Parties had exchanged several Notes Verbales and held four in-person meetings in Minsk relating to the implementation of obligations under the ICSFT without reaching an agreed settlement. It followed that the dispute could not be settled by negotiation within a reasonable time. The Parties also held negotiations for starting arbitral proceedings for at least six months, in which Ukraine proposed an ad hoc chamber of the Court as an alternative; it followed that the arbitration precondition was met (paras. 70–6).

(2) (by fifteen votes to one, Judge ad hoc Skotnikov dissenting) The objection to the Court's jurisdiction under the CERD and to the admissibility of Ukraine's claims under the CERD were rejected.

(a) Deciding whether the measures of which Ukraine complained constituted racial discrimination within the meaning of Article 1(1) of CERD or whether those measures fell within Article 1(2) or (3) of CERD were matters for the merits. The broad formulation of rights and obligations under CERD, and the non-exhaustive list of rights under Article 5 thereunder, entailed that the measures of which Ukraine complained fell within the scope of that Convention (paras. 94–6).

(b) Article 22 of CERD had to be interpreted pursuant to customary rules of international law on treaty interpretation. The word “or” in Article 22 was not decisive to...