Complex Disputes and Narrow Compromissory Clauses: Ukraine’s Institution of Proceedings against Russia

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On February 26 2022 Ukraine filed an Application and a Request for Provisional Measures before the ICJ against Russia. The hearings on the application for Provisional Measures begins today. In its application, Ukraine argues that Russia falsely accused it of committing genocide in the Luhansk and Donetsk oblasts of Ukraine, which led Russia to recognizing these Ukrainian regions as states and implementing what it called a ‘special military operation’ against Ukraine. Ukraine bases the Court’s jurisdiction on the comprommissory clause of the Genocide Convention. In this way, Ukraine is attempting to have aspects of Russia’s aggression brought to the jurisdiction of the Court in so far they relate to the Genocide Convention. The invocation of jurisdiction of international courts and tribunals based on compromissory clauses has increased in recent years and led to unexpected litigation coupled with a concomitant decline in their inclusion in treaties (on these points see Fontanelli here and in this blog). Against the background of and I want to briefly touch upon how the Russian invasion of Ukraine fits within the bounds of the Genocide Convention and as a next step, whether the ICJ could make a finding of a self-standing violation of the prohibition of the use of force in the context of the claims brought under it. The post will not have the request for provisional measures as its focus (multiple twitter threads have been devoted to the subject, see among others Massimo Lando and Ori Pomson). I will rather try to tease out a few broader considerations regarding jurisdiction ratione materiae under compromissory clauses in the recent jurisprudence of the Court.

The real dispute: Threading the Needle & Abuses of Process and Rights

 By design, compromissory clauses are intended to bring to resolution a specifically circumscribed category of disputes pertaining to the interpretation and application of the convention they are contained. Since no dispute arises in a vacuum, but rather ‘in the context of broader disagreement’ (Obligation to Negotiate Access to the Pacific Ocean (Bolivia v Chile para 32) the Court has to disentangle the facts and claims that fall within the purview of the treaty, and decide based on them. The most pertinent example can be traced in the ICJ CERD Ukraine v Russia 2011 Judgement (para 32 emphasis added), where the Court stated that the

disputes involved a range of matters including the status of Abkhazia and South Ossetia, outbreaks of armed conflict and alleged breaches of international humanitarian law and of human rights, including the rights of minorities. It is within that complex situation that the dispute which Georgia alleges to exist and which the Russian Federation denies is to be identified. One situation may contain disputes which relate to more than one body of law.

However, more recently an approach of ‘proper characterization’ of the claims of a dispute has emerged (see also Harris on the use of the concept and its dangers). What this approach entails is identifying first the primary aspect or center of gravity of a claim, and second, the motives of the parties. For example, in the Chagos case the Arbitral Tribunal concluded that Mauritius’s claim regarding the interpretation of the coastal state

properly characterized… relat[ed] to land sovereignty over the Chagos Archipelago. The Parties’ differing views on the “coastal State” for the purposes of the Convention are simply one aspect of this larger dispute’ (para 212)

adding that using the interpretation of the term ‘coastal state’ as a ‘pretext’

‘would do violence to the intent of the drafters of the Convention to craft a balanced text and to respect the manifest sensitivity of States to the compulsory settlement of disputes’ (para 219).

For this approach see the following cases: Chagos Marine Protected Area (Mauritius v U.K.), PCA Case No. 2011-03, Award (2015) (esp. paras 212 and 219), South China Sea (Philippines v China),  (2015) (esp. paras 150, 152-3); the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v Russia) (2020) (esp. paras 154 and 195-8), and the Enrica Lexie Incident (Italy v India), (May 2020) (paras 231-245).

If the ICJ followed this path, it could decide that the dispute properly characterized is not one on the interpretation and application of the Genocide Convention, but rather on the violation of the prohibition of the use of force, leading to a finding of lack of jurisdiction. However, the ICJ has not so far, and rightly in my view, followed this path. Conversely, it tries to identify the object of the dispute ‘on an objective basis’ taking into account the oral and written pleadings of both parties, giving ‘particular attention to the formulation of the dispute chosen by the applicant’ (Application of the ICSFT and the ICERD (Ukraine v Russian Federation) (2019) para 24). Subsequently, it explores whether ‘the acts of which the applicant complains “fall within the provisions” of the treaty containing the clause’ which might necessitate ‘the interpretation of the provisions that define the scope of the treaty’ (ibid para 57). This approach and test have been consistently followed in its recent case law (see eg Application of ICERD (Qatar v UAE) (2021), Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v USA) (2021).

The above debate of characterization is important in this context as Russia, provided it participates in the proceedings, could also claim abuse of process, raising the argument that Ukraine is invoking the Genocide Convention as a pretext of obtaining a judgment on Russia’s actions in the larger context of the dispute. A similar argument was also made in the Iranian Assets case, where the USA claimed that Iran’s goal was to ‘to embroil the Court in a broader strategic dispute’ (para 34). On that occasion, the Court implicitly rejected that claim by affirming a presumption against the abuse of process, as it did not further explore the US related argument on the grounds that there were no ‘exceptional circumstances’ (para 114). Such arguments seem to consistently fail before the ICJ (see Baetens here).

Furthermore, the question whether the invoked rights continue to exist at the moment of the Provisional Measures hearing could also be deemed to be connected to the identification of the ‘real’ dispute, as per the  Nuclear Tests (Australia v. France) Case (paras 31-32). Drawing from the latter case, Ukraine’s claim ‘to protect its rights not to be subject to a false claim of genocide’ (Provisional Measures Request, para 12) could perhaps be vitiated by Russian statements denying that the motivating factor for its ongoing use of force is the alleged perpetration of genocide. Nevertheless, Ukraine adds that the right to be preserved is the right not to ‘be subjected to another State’s military operations on its territory based on a brazen abuse of Article I of the Genocide Convention’(ibid), which is not tied to rebuttable allegations of motive, but rather is connected to a specific violation of the Convention, as it emerges from the assessment of the facts under consideration.

The Genocide Convention’s Compromissory Clause

The compromissory clause of the Genocide Convention brings within the jurisdiction of the Court ‘[d]isputes between the Contracting Parties relating to [its] interpretation, application or fulfilment’ (Art IX). Thus, the first step would be to show that there is a dispute between the parties regarding the application, interpretation and fulfilment of the Convention. This seems plausible since both parties appear to hold different views as to whether Ukraine violated its obligations under the Convention with regards to the population of Luhansk and Donetsk oblasts. 

Additionally, whereas most compromissory clauses are limited to disputes on the interpretation and application of the convention, the Genocide Convention includes disputes regarding its fulfilment. This might provide an argument further cementing the jurisdiction of the Court. Apart from the general tenet of effet utile, the fact that ‘fulfilment’ was deliberately added and intended to be broader than ‘application’ and ‘interpretation’ is evinced by the Travaux Préparatoires where Greece’s representative suggested deletion of ‘fulfilment’ due to its similarity to ‘application’ was not accepted. On the contrary, the term was retained, apparently echoing the argument voiced by India’s representative that:

‘the word “application” included the study of circumstances in which the convention should or should not apply, while the word “fulfilment” referred to the compliance or non-compliance of a party with the provisions of the convention. The word “fulfilment” therefore had a much wider meaning.’ (p. 437)

This broader compromissory clause could be used by Ukraine to counter potential arguments by Russia that the dispute does not concern the interpretation and application of the Convention strictly speaking. The fact that the broader language of fulfilment is included is important in that Russia’s actions can be assessed on the grounds of compliance with the obligations enshrined in the Genocide Convention.

Questions relating to the fulfilment of the Convention could be important, for example, if  Russia were to argue that its claim relating to Ukraine committing genocide relates to the obligation not to commit genocide as grounded in customary international law and  was not based on the Genocide Convention (note however that Ukraine potentially anticipates this argument and has provided an official statement by the Russian Ambassador to the EU in its Application invoking ‘the official term of genocide as coined in international law’, para 8(e)). Admittedly, such an argument, if raised by Russia, would be tenuous. Nevertheless, even if it were accepted that Russia’s allegations were not grounded in the Genocide Convention but rather on customary international law, and thus the interpretation and application of the Genocide Convention was not at issue, its fulfilment would still be. This is because Russia’s fulfilment of the Genocide Convention can be brought into question regardless of whether it specifically relied on the Convention or not.

Apart from the precise terms of the Genocide Convention’s compromissory clause, what remains important is how the use of force and aggression can be used to fit within it. Besides, this will not be the first time that the Court makes a finding that the use of force is just one of the means that could violate a treaty provision, as it did in the Oil Platforms Preliminary Objections case (para 22, emphasis added):

Any action by one of the Parties that is incompatible with those obligations is unlawful, regardless of the means by which it is brought about. A violation of the rights of one party under the Treaty by means of the use of force is as unlawful as would be a violation by administrative decision or by any other means. Matters relating to the use of force are therefore not per se excluded from the reach of the Treaty of 1955.

In this vein, Ukraine could argue that the fulfilment of the Convention entails respecting Article VIII, which provides that Parties ‘may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide’, both by not exploring any multilateral solution before having recourse to force unilaterally, and by ignoring actions taken by the UN organs calling for it to cease hostilities (eg UNGA Res A/ES-11/L.1). Despite Article VIII’s hortatory language, Russia’s continued aggression and disregard of UN organs point to a bad faith fulfilment of the provisions of the Genocide Convention.

Relatedly, Russia’s use of force can also be seen not only as a bad faith application of Article I stipulating that ‘in time of peace or in time of war, [genocide] is a crime under international law which they undertake to prevent and to punish’, but also as a direct violation. More specifically, the phrase ‘undertake to prevent and to punish’ cannot be taken to contradict the customary law prohibition of use of force enshrined in art. 2(4) of the UN Charter, so the Parties should aim to prevent and punish with acts in accordance to established international law (see Tams in Genocide Convention: A Commentary [2014], p. 75 para 95).

Finally, if the case proceeds to the merits, a finding of a self-standing violation of the prohibition of the use of force and of aggression in the dispositif of the merits judgment would appear to overstretch the ratione materiae jurisdiction of the Court. This is in essence what the ICJ did in the Oil Platforms Merits Judgment (para 125), which was the object of much, and in my view rightful, backlash (see most notably Judge Higgins’ Separate Opinion where she argued that the Court ‘invoked the concept of treaty interpretation to displace the applicable law’ (para 49)). That is to say that the findings of the Court should be limited to the specific violations of the Genocide Convention and not on broader aspects of the dispute. The use of force and aggression are to be examined only in so far as they are the means through which the Genocide Convention was violated.

Concluding Remarks

Ukraine’s and the international community’s responses highlight the multifacetedness of a rule-based arsenal (see Fleur Johns and Anastasiya Kotova), as is for example the shutting of Russia out of SWIFT and imposing other restrictive measures. However, with regard to judicial dispute settlement in the current international system where compulsory interstate jurisdiction is lacking, creative use of seising a Court appears unavoidable. The danger is that the Court has to walk a tightrope between maintaining cogent legal arguments and effectively putting an end to a tragedy.

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Brian McGarry says

March 7, 2022

Great analysis. Thankfully, these concerns do not seem to problematize the prima facie standards applicable to Ukraine's urgent request for provisional measures. It's one thing for the Court to depart from Oil Platforms when defining its jurisdiction ratione materiae at a later stage; quite another to take a narrower approach one week into the case.

Regarding mootness and the 'real' dispute, it's difficult to see the Court treating any such statement from Putin with the credence and deference it afforded the French President in Nuclear Tests. Dismissing the case with a caveat a la para 63 of that judgment would divorce the Court from reality, and would be seen as a cowardly dereliction of duty.

As this case was lodged with the Court only 3 days into an expanding humanitarian catastrophe, it's unfortunately worth noting that some of the concerns you've raised might be resolved by Ukraine's subsequent amendment of its submissions, alleging further breaches of the Genocide Convention. Thanks for this thoughtful post.

Matina Papadaki says

March 7, 2022

Thanks for the thoughtful engagement and comments Brian. I think we are in agreement, especially since my analysis is not aimed at the provisional measures.

More specifically, regarding your first point, I agree that a narrower approach by the ICJ will not be warranted especially at this stage.

As far as mootness is concerned, I believe it would be a very tenuous argument. The reason I included it was that it fits in the broader arc of framing the dispute. Consequently, this argument could only be relevant were it backed by Russian argumentation on this point, and even in that case it would be surprising if the Court accepted it.

Finally, regarding further violations I am not sure how they will play out in the specific context of the Genocide Convention, but Ukraine's application para 24 seems to foreshadow such a future argument by pointing out that the actus reus of Article II is met by the actions of Russia and that there might be indications of the mens era as well.