Ukraine v Russian Federation

• Jurisdiction: Derecho Internacional
• Judge: Donoghue,Bhandari,Yusuf,Tomka,Cançado,Bennouna,Trindade,Gaja,Owada,Xue,Skotnikov,Greenwood,Crawford,Abraham,Pocar,Robinson,Sebutinde
• Date: 19 April 2017
• Court: International Court of Justice

International Court of Justice Order on Provisional Measures.

(Abraham, President; Yusuf, Vice-President; Owada, Tomka, Bennouna, CançadoTrindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson and Crawford, Judges; Pocar and 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 1

(Ukraine

and

Russian Federation)

International Court of Justice — Provisional measures — Terrorism — Racial discrimination — Prima facie jurisdiction — International Convention for the Suppression of the Financing of Terrorism, 1999 (“ICSFT”) — International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (“CERD”) — Procedural preconditions to Court's jurisdiction — Negotiation — Arbitration — Plausibility — Article 18 of ICSFT — Obligation to cooperate to prevent terrorism financing — Whether Ukraine proving that alleged acts constituting breach of Article 18 of ICSFT — Articles 2 – 5 of CERD — Right to education — Whether restrictions on Ukrainian-language education plausibly breaching right to education — Freedom of association — Whether banning of Mejlis plausibly breaching freedom of association — Irreparable prejudice — Urgency — Link between provisional measures requested and rights sought to be protected — Measures to prevent extension and aggravation of dispute

Terrorism — Treaties — International Convention for the Suppression of the Financing of Terrorism, 1999 — Whether Court having prima facie jurisdiction under ICSFT — Article 18 of ICSFT — Obligation to cooperate to prevent terrorism financing — Whether Ukraine proving that alleged acts constituting breach of Article 18 of ICSFT — Whether provisional measures to be ordered

Human rights — Treaties — International Convention on the Elimination of All Forms of Racial Discrimination, 1965 — Whether Court having prima facie jurisdiction under CERD — Articles 2 – 5 of CERD — Right to education — Whether restrictions on Ukrainian-language education plausibly breaching right to education — Freedom of association — Whether banning of Mejlis plausibly breaching freedom of association — Whether provisional measures to be ordered

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 founded the Court's jurisdiction on Article 24(1) of the International Convention for the Suppression of the Financing of Terrorism, 1999 (“the ICSFT”),3 and on Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (“CERD”).4 Ukraine also filed a request for provisional measures in accordance with Article 41 of the Court's Statute.5

Concerning prima facie jurisdiction, Ukraine argued that a dispute existed between the Parties. According to Ukraine, since 2014 the Russian Federation had been supplying arms to various armed groups, including the Donetsk People's Republic and the Luhansk People's Republic. Ukraine contended that such arms were used to commit terrorist acts within the meaning of Article 2 of the ICSFT,6 and that arms could fall within the definition of “funds” under the ICSFT. The Russian Federation argued that there was prima facie no dispute between the Parties on the interpretation or application of the ICSFT. The Russian Federation contended that the acts alleged by Ukraine could not fall within the meaning of terrorist acts under the ICSFT, and that the ICSFT did not cover matters of State responsibility.

Ukraine argued that since 2014, the Russian Federation had implemented a campaign of cultural erasure with respect to the Ukrainian and Crimean Tatar communities, which fell within the scope of CERD. The Russian

Federation argued that Ukraine had failed to show that the acts which it had alleged constituted violations of CERD, even on a prima facie level. The Russian Federation also disputed the veracity of Ukraine's account of the activities which had taken place in Crimea since 2014.

Ukraine argued that the procedural preconditions to the Court's jurisdiction had been satisfied under both the ICSFT and CERD. The Russian Federation contended that neither the obligation to negotiate under the ICSFT, nor the procedural preconditions under CERD, had been satisfied.

Ukraine sought to protect its rights arising under Article 18 of the ICSFT7 on inter-State cooperation in preventing the financing of terrorism. Ukraine argued that it was more than plausible that the Russian Federation had engaged in activities prohibited under the ICSFT, and that a state of armed conflict did not prevent the application of the ICSFT. The Russian Federation contended that Ukraine's right under Article 18 of the ICSFT was subject to the acts alleged by Ukraine being characterized as terrorist acts under Article 2 of the ICSFT. The Russian Federation stated that the acts alleged by Ukraine could not fall within that provision, and, as a result, its rights arising under Article 18 of the ICSFT were not plausible.

Ukraine also sought to protect its rights arising under Articles 2–5 of CERD,8 which it alleged had been plausibly breached by the Russian Federation's racially discriminatory activities in Crimea. The Russian Federation replied that Ukraine had not demonstrated that discriminatory measures had been adopted and targeted at the Ukrainian and Crimean Tatar communities. Therefore, Ukraine's rights under CERD were not plausible.

Ukraine contended that without provisional measures, the Ukrainian and Crimean Tatar communities in Crimea would be severely weakened or possibly destroyed. According to Ukraine, this potential prejudice would be irreparable, and there was urgency in the circumstances. The Russian Federation argued that there was no risk of irreparable prejudice to the rights of Ukraine, since the Russian Federation itself had taken a number of measures in support of the Ukrainian and Crimean Tatar communities in Crimea.

Held:—(A) (by thirteen votes to three, Judge Tomka, Judge Xue and Judge ad hoc Skotnikov dissenting) The Russian Federation had to refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis.

(B) (unanimously) The Russian Federation had to ensure the availability of education in the Ukrainian language in Crimea.

(1) (a) At this stage of the proceedings, the Court had to examine whether a dispute existed between the Parties and whether the dispute concerned the interpretation or application of the ICSFT or CERD (para. 23).

(b) In relation to the ICSFT, at least some of the allegations made by Ukraine appeared to be capable of falling within the scope ratione materiae of the ICSFT. Issues concerning the definition of “funds” and whether the financing of terrorism by the State itself fell within the scope of the ICSFT did not fall to be answered at this stage of the proceedings (paras. 24–30).

(c) Concerning CERD, the banning of the Mejlis and the alleged restrictions on cultural and educational rights in Crimea appeared to be capable of falling within the scope ratione materiae of CERD (paras. 31–8).

(d) Where a requirement to negotiate existed as a procedural precondition to the Court's jurisdiction, such a precondition was met only if negotiations had failed, or had become futile or deadlocked. The subject matter of the negotiations had to relate to the subject matter of the dispute between the Parties. Issues under the ICSFT had been raised in bilateral contacts between the Parties, both by way of diplomatic notes and in person, and the Parties had also discussed the initiation of an arbitration prior to filing an application with the Court. Issues concerning the application of CERD in Crimea were raised in bilateral negotiations between the Parties. It was unnecessary to decide, at this stage of the proceedings, whether Article 22 of CERD also required the Parties to bring the matter to the attention of the CERD Committee prior to filing a case with the Court (paras. 43–60).

(e) The Court had prima facie jurisdiction both under the ICSFT and under CERD (para. 62).

(2) (a) Provisional measures could be indicated only if the rights claimed by the applicant State were at least plausible, and there had to be a link between the rights whose protection was sought and the provisional measures requested. Article 18 of the ICSFT had to be read in conjunction with Article 2 of the ICSFT. Since the obligations under Article 18 were premised on the acts identified in Article 2, a State party to the ICSFT could rely on Article 18 only if it was plausible that the acts alleged constituted offences under Article 2. Ukraine did not provide the Court with sufficient evidence to find that the elements under Article 2 of the ICSFT plausibly existed. The conditions for the indication of provisional measures under the ICSFT were not met (paras. 63–76).

(b) There was a correlation between the respect of individual rights under CERD, the obligations arising under CERD and the right of States to seek compliance therewith. The evidence submitted by Ukraine showed that the acts allegedly committed by the Russian Federation plausibly constituted acts of racial discrimination under CERD, especially in respect of the banning of the Mejlis and of educational rights in Crimea (paras. 81–3).

(c) The rights which Ukraine sought to protect under Articles 2 and 5 of CERD were linked to the provisional measures requested (para. 86).

(d) The Court was not called upon to make definitive findings on breaches of CERD at this stage of the proceedings. Certain rights invoked by Ukraine under CERD were of such a nature that prejudice to them could be irreparable. Reports...