On 4 July 2015, the Ukraine’s State Portal of Public Procurement issued Report no. 152973/5 “On results of negotiating public procurement procedure”, according to which Ukraine hired International Law Firm «Covington & Burling LLP» to work on the “protection of rights and interests of Ukraine in the settlement of international disputes involving Ukraine and other subjects of international law”. It is undisputed in Ukraine that the disputes referred to above are the prospective cases against the Russian Federation arising from the conflict with the latter. As it remains uncertain so far which tribunals the Government of Ukraine would prefer to go to, the analysis of the International Court of Justice (“the ICJ” or “the Court”) as a potential option with an emphasis on potential jurisdictional issues will be provided below.
During February-March 2014 the Russian Federation annexed the Crimean peninsula, an integral part of Ukrainian territory. Subsequently, it started providing financial, logistic and military support to separatists in the east of Ukraine. Apart from violating the territorial integrity and sovereignty of Ukraine, those actions taken together caused irreversible damage to Ukraine’s economy and political stability. In the past year, 6,362 people have been killed and 15,775 wounded, while five million people are in need of humanitarian aid, according to the latest Report of the Office of the United Nations High Commissioner for Human Rights, issued on 1 June 2015.
In the wake of the Crimean crisis, on March 27, 2014, the United Nations General Assembly adopted Resolution 68/262, declaring its support for Ukraine’s territorial integrity and sovereignty and calling upon all States, international organizations and specialized agencies not to recognize the referendum in Crimea. Nevertheless, since United Nations General Assembly Resolutions are as a rule of recommendatory nature and bind the States only as to certain organizational matters within the UN, such as the approval of budget under Article 17 of the UN Charter, Resolution 68/262 does not assist the government of Ukraine as either an effective tool of terminating the continuing breach of international law or an option of seeking compensation from States which act contrary to this Resolution.
Kyiv could have obtained an entirely different benefit if a UN Security Council Resolution had been adopted under Chapter VII of the UN Charter, obliging Russia to refrain from aggressive actions, in the beginning of the Crimean crisis. Another quite interesting example of how the UN Security Council could have been of assistance is through the establishment of a body similar to the United Nations Compensation Commission (‘UNCC’), which was created in accordance with United Nations Security Council Resolution 687 in 1991 with a mandate to process claims and pay compensation for losses and damage suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait.
Obviously, the possibility of adopting a Security Council Resolution seems illusory because of the right to veto held by permanent members, including Russia. Thus, as the main political bodies of the UN do not have enough powers to stand up for Ukraine effectively, starting from the beginning of 2014 prominent Ukrainian international law experts, such as Volodymyr Vasylenko and Oleksandr Zadorozhny, have voiced the idea of protecting Ukraine’s interest in international tribunals, though being rather skeptical as to the International Court of Justice as an option due to prospective jurisdictional challenges.
What can the ICJ offer Ukraine?
The Court’s role of promoting international peace and security is twofold. First of all, the ICJ may give a non-binding advisory opinion on legal questions referred to it by duly authorized organizations (UN bodies and 16 specialized agencies). Secondly, the Court may settle legal disputes submitted to it by States by rendering a decision binding upon the parties to the case.
Article 65(1) of the ICJ Statute provides that “the Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request”.
Thus, Ukraine can induce the General Assembly to file the request for an advisory opinion to the ICJ in accordance with Article 96 of the UN Charter. Despite its non-binding nature, advisory opinions of the Court constitute authoritative legal reasoning as to the interpretation of international law, given by the principal judicial organ of the United Nations. Furthermore, since legal authority of the Court is significantly high, Kyiv, other States or individuals may use an advisory opinion as a supplementary means of interpreting the rules of law as well.
The ICJ may be asked to determine the legal status of Crimea and legality of Russia’s actions and involvement in the Donbas region in a relatively short period of time. However, the question has to be carefully formulated not to face the fate of many States in Kosovo case, which were disappointed with the approach that had been undertaken by the ICJ. Despite the expectations of the international legal community, the Court refused to consider the issue of whether the declaration of independence by Kosovo had produced any legal consequences, e.g. the achievement of statehood, and limited itself to answering the question in a narrow manner by determining that the Kosovo declaration of independence per se did not violate international law.
According to Article 36 of the ICJ Statute, the Court’s contentious jurisdiction comprises “all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” This means that since neither Ukraine, nor Russia made a declaration accepting compulsory jurisdiction of the ICJ, the Court will consider a case between these States under the following circumstances:
- Ukraine and Russia conclude a special agreement to submit the case to the ICJ;
- Ukraine files a claim by virtue of a jurisdictional clause, i.e. a treaty provision which provides that in the event of a disagreement as to application or interpretation of a treaty, one of the States may refer the dispute to the ICJ without obtaining respondent’s consent.
Since it is equally unlikely that the Russian Federation will file a joint application with Ukraine on, for instance, the legal status of Crimea, Kyiv should look into the treaties (1) to which both Russia and Ukraine are parties; (2) which contain jurisdictional clauses; and (3) where no reservations were made by Russia as to the particular jurisdictional clause.
The real challenge for Ukraine is the fact that most of such treaties can hardly be helpful in the context of aggression, i.e. it would be ridiculous and meaningless to submit a case to the ICJ on the basis of, for example, Comprehensive Nuclear Test Ban Treaty. Therefore, Kyiv should look into the treaties breach of which could at least indirectly establish the illegality of Russian actions in the Ukrainian crisis.
1) International Convention on Elimination of All Forms of Racial Discrimination
The first example of such a treaty is the International Convention on Elimination of All Forms of Racial Discrimination (‘CERD’). Pursuant to Article 11 of the CERD “if a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee.” When the reconciliation procedures are not successful, Kyiv may rely on Article 22 of the CERD which entitles a state party to refer the matter to the ICJ.
This option contains another jurisdictional challenge, as Russia would definitely follow its position in Georgia vs. Russian Federation case of 2011 and raise several objections to the Court’s jurisdiction. In that case, Russia put forward four preliminary objections:
- There was no dispute between Georgia and Russian Federation;
- The procedural requirements for recourse to the ICJ were not fulfilled;
- The alleged wrongful conduct took place outside of Russia’s territory;
- The Court’s jurisdiction was limited ratione temporis.
In order to avoid the second and fourth objections being raised, the Government of Ukraine should not follow Georgia’s mistake, but undertake genuine attempts to negotiate the dispute and refrain from arguing that incidents of racial discrimination might have taken place before the entry into of force of CERD as between these two States.
Speaking of two other objections, the Court dismissed Russia’s first objection as to the alleged absence of a dispute, because the test established by South West Africa case, i.e. that “it must be shown that the claim of one party is positively opposed by the other”, was satisfied. In Georgia vs. Russian Federation case of 2011, the ICJ analyzed, inter alia, the statements of both parties’ officials, thus the Government of Ukraine should raise the issue of the Russia’s breach of its obligations under CERD (which would never be accepted by the opponent), so that there are no doubts as to the validity of the objection.
The core of the third Russian objection was that the obligations under CERD apply territorially. This ratione loci objection battle may be won by Kyiv, if it refers to the Court’s reasoning in the Order indicating provisional measures dated 15 October 2008, where it stated that “there is no restriction of a general nature in CERD relating to its territorial application”. Nevertheless, since the aforementioned legal position was not later addressed by the Court in its Judgment of 1 April 2011 (the ICJ agreed with another objection of the Russian Federation that Georgia had not genuinely attempted to negotiate prior submitting the case to the Court), the doubts regarding extraterritorial application of CERD may not be completely removed
2) International Convention for the Suppression of the Financing of Terrorism
Another opportunity derives from the International Convention for the Suppression of the Financing of Terrorism (‘Terrorism Financing Convention’) to which both Ukraine and Russia are parties. On 8 August 2014, the Minister of Justice of Ukraine declared that Ukraine had clear evidence that Russia provided weapons, equipment and money to terrorists in the east of Ukraine. He also said that the pre-trial notice had been sent to the Russian Government in accordance with the Article 24(1) of the Terrorism Financing Convention which provides that “any dispute between the state parties concerning the interpretation or application of the convention may be referred to the ICJ by any State if it was not settled through negotiations within a reasonable time and if within six months the arbitration was not organized after that.”
Thus, submission of the claim to the ICJ under the Terrorism Financing Convention may be expected in the near future.
Execution of Judgment
Even in the case of a positive decision for Ukraine, Kyiv might face certain problems with its (immediate) enforcement. The Court’s history includes several cases where one of the parties faced obstacles with fulfillment of decisions for quite a long period of time, e.g. Corfu Channel (40 years), Gabčikovo-Nagymaros (18 years already), Land and Maritime Boundary between Cameroon and Nigeria (4 years). The possibility that Russia acts similarly is rather high.
In the light of the current economic situation in Ukraine, Kyiv might ask the Court to award compensation for the injuries caused by Russia’s breaches of international law as the most acceptable form of reparation. What should be borne in mind here is that it is not a common practice for the Court to award compensation. Sixty years after it had been established, there have been only two cases where the ICJ decided on the amount of compensation to be paid by a debtor State (Corfu Channel and Ahmadou Sadio Diallo cases).
On the basis of the foregoing, it may be concluded the ICJ does not seem for Kyiv to be the perfect place to take Russia. Apart from various jurisdictional challenges, Ukraine’s lawyers would most probably encounter serious hurdles (even in the case of a positive decision on merits) with enforcement of the Court’s ruling. Therefore, it is highly unlikely that International Law Firm «Covington & Burling LLP»’s first choice of the tribunal where the interests and rights of Ukraine are to be protected would be the International Court of Justice.