Provisional Measures in Ukraine v. Russia: From Illusions to Reality or a Prejudgment in Disguise?

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On 19 April 2017, the ICJ rendered an Order dealing with Ukraine’s request for provisional measures concerning the alleged violations by Russian Federation of both the International Convention for the Suppression of the Financing of Terrorism (‘ICSFT’) and International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).

In assessing the request for provisional measures, the Court moved from requiring plausibility of rights to requiring of plausibility of claims. The latter constitutes a higher threshold compared to the former eloquently described by Judge Abraham in his separate opinion appended to the Pulp Mills judgment and consistently followed by the ICJ as discussed below.

This new test requires the Court, at the provisional measures stage, to consider aspects of the merits, which relates to the probability of the claim’s success, and goes beyond a pure jurisdictional analysis. This post examines the limits of Court’s assessment of the merits of a dispute in the context of a request for provisional measures, in the light of the binding nature of such measures and the need for balance between prejudgment and the protection of adjudication’s consensual nature. Does a requirement of factual plausibility disturbingly blur the distinction between merits and incidental proceedings?

The Plausibility (of Rights): Against Possibly Illusory Rights

The Court is empowered to indicate provisional measures in order to ‘preserve the respective rights of the parties’, pendete lite (Article 41 ICJ Statute). Their indication presupposes the Court’s prima facie jurisdiction and an imminent risk of having these rights irreparably harmed in the light of the circumstances of the case. By doing so, the Court protects not only the rights of the parties from suffering irreparable harm or prejudice, but also the Court’s own judicial functions by avoiding a fait accompli and seeking to ensure the effectiveness of its final judgment.

The assessment of whether alleged rights might suffer irreparable harm presupposes their existence. Thus, the conduct complained of shall correspond to the Respondent’s existing legal obligation under international law. However, the Court, at the provisional measures stage is competent to examine only whether the claimed rights are capable  of being violated pendente lite in a way that would render the final decision ineffective and under the assumption that the relevant rights exist and will be upheld at the merits.

This analysis raises the risk that the Court issues an order preserving rights that subsequently could be adjudged non-existent in law or not held by the Applicant. This could undermine the effectiveness of Court’s judicial functioning. Moreover, since provisional measures are binding and impact the exercise of states’ sovereign rights, their indication should not result from an arbitrary and unpredictable conceptual process.

Judge Shahabuddeen in his separate opinion in Great Belt acknowledged that the asserted rights must -possibly – exist in international law (legal plausibility) (pp. 21-22, 28). Additionally, Judge Abraham in Pulp Mills conditioned interim measures upon a limited (neither complete nor final) review on merits. The Court examines whether the claimed rights ‘actually exist and are in danger of being violated’ (para. 8). Thus, they should not be ‘patently non-existent’ (para. 10).

In a similar vein, the ICJ consistently applied this test. A plausible case regarding the rights’ existence is required (See, Belgium v Senegal, paras. 57,60; Temple of Preah Vihear, paras. 33, 38; Certain Document and Data, paras. 26-28; Certain Activities (Order of December 13, 2013) paras. 15-19). The Court cannot definitively pronounce upon their existence and Applicant’s capacity to invoke them. It assesses whether they -at least plausibly- exist in international law; whether a plausible legal basis can be found (treaty, customary international law or general principles of law) and that the Applicant plausibly possesses them.

Thus, the mere assertion of rights does not suffice. This threshold is lower compared to the merits. What is required, is reasonable possibility that the right exists in abstracto as matter of law, and not proof nor any probability of success on merits. In essence, a realistic prospect that the relevant rights will be adjudged to exist under the relevant instrument will suffice.

Interestingly, in Certain Activities (Order of March 8, 2011), the Court  while confirming that it did not need to definitively determine the asserted rights’ existence (paras. 53, 57), based legal plausibility on their application in the circumstances of the case considering the evidence presented and touching upon factual plausibility (paras. 58-59). Similarly, in Immunities and Criminal Proceedings it assessed the invoked right’s plausibility based on the evidence presented (paras. 71,78-79).

Overall, the reasoning behind this test is intertwined with provisional measures’ very nature and purpose. The Court aims at protecting rights (and their exercise) from being irreparably harmed. These rights have to be linked to the dispute’s subject matter in the main proceedings, and thus, they are subject to final adjudication. They could be subsequently adjudged to belong to one of the parties. This presupposes their existence and that the Applicant holds them at least prima facie.                                                                         

From Legal Plausibility to Factual Plausibility (Plausibility of Claims)

The Court in Ukraine v Russia moved from legal plausibility, a legal assessment focusing on rights’ existence, to plausibility of claims, a factual assessment concerning the relevant act’s characterization as breaching the asserted rights. Although the Court conditioned the indication of provisional measures upon whether the asserted rights “are at least plausible” (para. 63) and not definitely existent (para. 64), it examined whether they could be breached by the Respondent’s conduct. In essence, it did not examine their existence as a matter of law under the treaties invoked. Instead, it applied them to the relevant facts taking for granted the former. More precisely, the Court examined whether the acts complained of could plausibly fall within treaties’ ratione materiae scope in light of the sufficiency of the evidence. It examined whether the Respondent’s conduct constituted acts of terrorism under the ICSFT (paras. 72-77) and racial discrimination under CERD (paras. 80-83) “on the basis of the evidence presented”.

Under this test, the asserted rights might, as matter of fact, have been breached by the Respondent’s conduct. This assessment is based on evidence presupposing that the latter is capable of violating the relevant rights. The Court requires a degree of probability that these rights are likely to be infringed by that conduct. Thus, under this broadened scope, the Court examines whether the Respondent’s conduct can plausibly breach (factual aspect) an obligation owed to the Applicant (legal aspect). It is a factual scrutiny touching upon the merits of the claim.

Whether conduct is capable of breaching the claimed rights presupposes not only that the right legally exists as such (legal plausibility), but also that the alleged conduct is covered by the material scope of the relevant legal instrument from which the rights arise. In essence, whether “the acts of which Ukraine complains [were] prima facie capable of falling within the provisions of the [relevant] Convention” (para. 30).

Thus, factual plausibility sets a higher threshold than legal plausibility. It goes beyond the mere existence of legal rights in a purely prima facie analysis. In addition, where the invoked rights arise from a treaty, the Respondent’s conduct has to be covered by that treaty. Thus, factual plausibility could concern treaties’ ratione materiae scope neither in terms of prima facie jurisdiction nor of rights’ existence under international law. It suggests a factual analysis, at the provisional measures stage, a scrutiny in terms of evidence presupposing the interpretation and application of the relevant legal source (treaty, custom) from which the rights arise. It is a factual assessment aiming at preventing the imposition of obligations on states without having their conduct found to be violating international obligations which correspond to Applicant’s plausibly existent legal rights.

Touching Upon Prejudgment?

While the Court, in Ukraine v Russia referred to (legal) plausibility, in reality, it applied the factual plausibility test without even acknowledging it. In the wake of Jadhav case, where the Court following the Ukraine v Russia Order assessed the plausibility of rights based on the legal arguments and evidence presented” (paras. 42-45) when the Court refers to the former (para. 35), in reality, means the latter.

Besides, the Court did not describe the standard of appreciation regarding factual plausibility nor determine the reasons why the evidence adduced did not suffice. It imposed an undefined burden of proof on the Applicant without delimiting the applicable standard of proof. Instead, it remains undetermined, unpredictable and not easily manageable, to the Applicants’ detriment. Factual plausibility resembles a probability of claim’s success test in disguise; it is ambiguous and unpredictable.

Furthermore, this uncertainty will inform the strategy of parties. They will try to plead their case in full. Possibly, any disagreement between the parties as to factual allegations will be transformed into a mini trial at the provisional measures stage. Gradually, the incidental nature of the proceedings will be distorted, and the distinction between merits and provisional measures blurred.

In Ukraine v Russia, the Court departed from a purely legal assessment concerning the rights’ existence to a more in-depth factual analysis in terms of evidence (paras. 77, 83). Of course, factual plausibility presupposes the existence of rights. However, the Court, in the course of this assessment, applied the legal instrument invoked to the alleged facts and assessed the latter’s persuasiveness. This, although not a definite assessment, conceptually resembles a Court’s examination at merits conducted when the Court, by default, cannot have an overview of the entire case.

In other words, the Court departs from the objective assessment of the scope of the legal framework within which it will operate (prima facie jurisdiction, legal plausibility) and proceeds with an evidence sufficiency examination, inherently subjective which contrasts with a preliminary, a priori not definite determination.

Overall, I agree with the position of Judge Pocar with regard to the importance of (legal) plausibility. Indeed, the Court, via this test, protects its judicial integrity and effectiveness. It ensures the proper administration of justice by at least disincentivizing frivolous claims. Legal plausibility ensures a balance between the need for protection of rights invoked within the inherent limits of prima facie jurisdiction and the avoidance of prejudgment in preservation of Court’s judicial integrity.

Legal plausibility was developed as a component of the very nature of provisional measures which is the protection of the rights forming the main proceedings’ subject matter. It results from the link between the asserted rights and merits since the rights’ protection presupposes their existence. However, the claims’ probability of success, hidden behind a factual assessment concerning whether the relevant conduct is capable of breaching the (plausible) rights and an assessment of the evidence presented, seems novel and ambiguous.

Indeed, a limited prima facie review on merits (legal plausibility) was reasonably established in order to protect the Court from manifestly unfounded legal requests. The fumus boni juris (plausibility of rights) seems inescapably compelled by logic and the Court’s duty to sensitively fulfil its mission. On the contrary, the plausibility of claims reflects a -conceptually different- fumus non mali juris test that requires a merits pronouncement without having the Court’s jurisdiction, the facts, nor parties’ rights and obligations definitively established yet. As Dapo Akande put it in 2016, this test raises “a question of mixed law and facts” (p. 367) at the early stage of provisional measures. It lies at the edge of prejudgment with questionable origin, contours, confines and legitimacy, which has the effect of challenging the Court’s jurisdictional limits and judicial integrity.

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