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Home Articles posted by Iryna Marchuk

Ukraine’s Dashed High Hopes: Predictable and Sober Decision of the ICJ on Indication of Provisional Measures in Ukraine v Russia

Published on April 24, 2017        Author: 

 

There has been a lot of speculation on the possible outcome of Ukraine’s request for indication of provisional measures in the highly politicized case of Ukraine v Russia, in particular following the parties’ heated exchange of arguments during oral proceedings that took place on 6-9 March 2017 before the ICJ (see my blog here and another blog here). Last week, the Court delivered a highly anticipated decision in which it indicated provisional measures with respect to Ukraine’s claims under CERD by requesting Russia “to refrain from maintaining or imposing limitations on the ability of Crimean tatar community to conserve its representative institutions, including the Mejlis” (by 13 to 3) and “ensure the availability of education in the Ukrainian language” by a unanimous vote (p. 106). In addition to those specific measures aimed at preserving specific rights, the Court chose to indicate an additional measure of general nature with the view of ensuring the non-aggravation of the dispute between the Parties (paras 103, 106).

In rather mild language, the Court also spoke of its ‘expectation’ for the Parties, “through individual and joint efforts, to work for the full implementation of [the Minsk agreements] in order to achieve a peaceful settlement of the conflict in the eastern regions of Ukraine” (para. 104). This seems to be a compromise middle-ground solution when the Majority, although having dismissed the plausibility of claims under ICSFT and therefore chosen not to indicate provisional measures with respect to Ukraine’s claims under the Convention, highlighted the seriousness of the ongoing fighting in eastern Ukraine and encouraged the Parties to revive the Minsk agreements that have been violated countless times. Read the rest of this entry…

 

Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

Published on March 16, 2017        Author: 

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. Read the rest of this entry…

 

Flexing Muscles (Yet Again): The Russian Constitutional Court’s Defiance of the Authority of the ECtHR in the Yukos Case

Published on February 13, 2017        Author: 

The saga in the case of the defunct Yukos oil company is far from over after the Russian Constitutional Court (RCC) in its decision of 19 January 2017 ruled that Russia was not bound to enforce the ECtHR decision on the award of pecuniary compensation to the company’s ex-shareholders, as it would violate the Constitution of the Russian Federation (CRF). The protracted argument between the Yukos oil company’s ex-shareholders and Russia has spanned over a decade before the ECtHR. In its judgment of 20 September 2011, the ECtHR found that Russia acted in breach of Art. 6 of the ECHR by failing to accord sufficient time to Yukos for preparation of its case before national courts. Further to this, the ECtHR found two breaches of Article 1 of Protocol I, in particular with respect to the assessment of penalties by the Russian tax authorities in 2010-2011 and their failure to “strike a fair balance” in the enforcement proceedings against Yukos. The issue of just satisfaction was settled in the 2014 ECtHR judgment that awarded 1,9 billion EUR in pecuniary damages to be paid by Russia to the Yukos ex-shareholders. It is an unprecedented amount of compensation that has ever been awarded in the context of human rights litigation, which makes Russia’s annual budget of 7,9 mil EUR allocated for enforcement of the ECtHR decisions look like a drop in the ocean. Following Russia’s unsuccessful appeal attempts in the ECtHR, the Russian Ministry of Justice brought the case before the RCC arguing against enforcement of the ECtHR judgment.

Uncertain Relationship Between International and Russian Law

The constitutional provisions on the relationship between international and Russian law are far from clear. As a general rule, the primacy of international treaties and agreements could be inferred from Art. 15(4) of the CRF:

If an international treaty or agreement of the Russian Federation provides for other rules than those envisaged by law, the rules of the international agreement shall apply.

The latest decisions of the RCC raise an important question on the relationship between international treaty law and Russian law, given its findings on the primacy of the Constitution if there exists a conflict between the rules of international and national law. Read the rest of this entry…

 
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Ukraine Takes Russia to the International Court of Justice: Will It Work?

Published on January 26, 2017        Author: 

In a much-anticipated move, on 17 January 2017 Ukraine submitted the lawsuit against Russia at the ICJ alleging the violations of the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The move did not come as a surprise, since Ukraine earlier announced its plans to take Russia to the ICJ over the annexation of Crimea and the conflict in eastern Ukraine. Although the major issue at stake is the unlawful use of force by Russia by annexing Crimea and conducting the war by proxy in eastern Ukraine, Ukraine invokes the breach of the two UN conventions that, although are relevant to the issues at stake, however, do not directly address the core of the dispute with Russia. The issues pertaining to terrorism financing and racial discrimination are largely peripheral to the major issue at stake. It is hard not to draw an obvious parallel between Ukraine’s and Georgia’s action before the ICJ. Following Russia-Georgia military standoff in 2008 in Georgia’s breakaway republics of Abkhazia and South Ossetia, which Russia viewed as a peacekeeping operation to protect human rights of its nationals, Georgia launched the lawsuit against Russia before the ICJ on the basis of the violation of CERD. Similar to Ukraine v Russia, the issues with respect to violation of CERD were not central to the dispute. Undoubtedly, Ukraine was inspired by the Georgian example and, while preparing its submission to the ICJ, attempted to avoid pitfalls that were encountered by Georgia and led to the dismissal of the case on jurisdictional grounds.

Jurisdictional Issues

The exercise of the ICJ jurisdiction in contentious proceedings is premised on state consent. As Russia does not recognize the compulsory jurisdiction of the ICJ, the only avenue for bringing the action before the ICJ is to rely upon a treaty that provides for the possibility of judicial settlement in the ICJ and has been ratified by both parties. Given that both Ukraine and Russia are parties to the Terrorism Financing Convention and CERD, Ukraine invoked those two instruments as the basis for its action before the ICJ. Read the rest of this entry…