Still Valid: Provisional Measures in Ukraine v. Russia (Allegations of Genocide)

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  1. Problem

The journey of the Ukraine v. Russia (Allegations of Genocide) dispute has generated much controversy as to perceived and real shifts in the ICJ’s approach. Let’s dissect this further. In its Provisional Measures (PM) Order of 16 March 2022, the ICJ, based on what has been characterised its ‘manipulative reasoning’, went so far as to order Russia to ‘immediately suspend [its] military operations’, by accepting the ‘surprisingly creative argument’ of Ukraine and its ‘creative use of seising a Court’. In contrast, in the Preliminary Objections (PO) Judgment of 2 February 2024, the ICJ ‘killed Ukraine’s creative argument’. While the ICJ confirmed its jurisdiction on the first aspect of the dispute (i.e., whether Ukraine committed genocide), it denied its ratione materiae jurisdiction on the second aspect of the dispute (i.e., whether the use of force by Russia has any legal basis under the Genocide Convention).

Considering the different conditions applicable to these two procedures, and the extreme urgency in an ongoing armed conflict, we should neither be surprised nor disappointed by such disparity in enthusiasm on the part of the ICJ. That being said, it is far from clear whether the PM Order has survived the PO Judgment. Recently, Alexianu argued that the former, implicitly revoked by the latter, had been in force only between 2022 and 2024. In this post I counter-argue that, in fact, the PM Order remains in force.

  1. Unprecedented case

A PM Order typically expires when the ICJ renders its final decision or judgment, whether on preliminary matters or the merits of the dispute in question (cf. Art 41(2) of the ICJ Statute and Art 76(1) of the ICJ Rules). Based on this principle, the ICJ expressly terminated the PM Orders in Anglo-Iranian (Judgment 1952, 114), Nuclear Tests (Judgment 1974 [61]), Nuclear Tests (Judgment 1974 [64]), and Georgia v. Russia (Judgment 2011 [186]). On the other hand, in Qatar v. UAE, while the ICJ denied its jurisdiction, it remained silent on the validity of the provisional measures (Judgment 2021 [115]). Nonetheless, it is reasonable to assume that the PO Judgment, by totally denying its jurisdiction, implicitly revoked the earlier PM Order.

In Allegations of Genocide, the ICJ indicated provisional measures ‘pending its final decision’ (Order 2022 [78]), and ordered Russia to suspend military operations ‘pending [the ICJ’s] final decision’ (ibid. [81]). As the ICJ in its PO Judgment has confirmed certain aspects of its jurisdiction while denying others, the question remains as to whether this is its ‘final decision or judgment’ within the above context.

At first glance, it is not unreasonable to take the PM Order as implicitly revoked by the PO Judgment for the following reasons: (1) the three provisional measures, all relating to the use of force by Russia, fall within the scope of the second aspect of the dispute (i.e., the use of force); (2) insofar as the ICJ denied its jurisdiction on the second aspect, the provisional measures are bereft of their jurisdictional basis (and/or the basis of the rights to be protected at the merits phase); and (3) consequently, they were implicitly revoked by the PO Judgment. Against this interpretation, I put forward the alternative interpretation that the provisional measures remain in force on account of being independent of the substantive law, namely, the Genocide Convention.

  1. Independent obligations under provisional measures

Although the so-called ‘autonomy’ of provisional measures is controversial (e.g., Cançado Trindade, Reiter, Li), it suffices for the purposes of this discussion to confirm that the content of obligations under provisional measures differs from that under the substantive law, in the following four patterns.

In the first pattern, two separate acts breach two separate obligations, respectively. In LaGrand, the obligation under the first provisional measure (i.e., the US ‘should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings’) was different to the obligation, under Article 36(1) of the Vienna Convention on Consular Relations, to inform the consular post of the sending State of an arrest of a national of that State. As a result, understandably, the ICJ concluded that the US breached two separate obligations (Judgment 2001 [115], [128]).

In the second pattern, the same conduct may breach two overlapping obligations. In Congo v. Uganda, the ICJ concluded that Uganda, by its military forces in the territory of the Democratic Republic of Congo, breached international human rights law and international humanitarian law  (Judgment 2005 [220]) and, by the same conduct, also breached obligations under the provisional measures to respect these laws (ibid. [264]). In Border Area/San Juan River, as well, the ICJ concluded that its finding that Nicaragua acted in breach of its obligations under the PM Order is ‘independent of the conclusion […] that the same conduct also constitutes a violation of the territorial sovereignty of Costa Rica’ (Judgment 2015 [129]). These findings mean that the same conduct may breach two obligations that, while substantially identical, exist independently of each other.

In the third pattern, a single act may breach obligations under provisional measures, while not breaching obligations under substantive law. In ICSFT/CERD, the ICJ concluded that, by maintaining its ban on the Mejlis, Russia violated the PM Order, even when that ban did not violate Russia’s obligations under CERD (Judgment 2024 [392]). Understandably, this finding was criticised by Judges as ‘surprising’ (Tomka [4]) and ‘inexplicable’ (Tuzmukhamedov [156]), on the ground that, if there is no breach of a right/obligation under substantive law, there can be no breach of provisional measures aimed at preserving that right (Tomka [5]; Brant [4]; and Tuzmukhamedov [158]). Against this position that strictly requires a connection between provisional measures and substantive rights/obligations, the ICJ took a different stance: ‘obligations arising from provisional measures bind the parties independently of the factual or legal situation which the provisional measure in question aims to preserve’ (Judgment 2024 [391]). More precisely, the obligation under provisional measures (i.e., that Russia must ‘[r]efrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis’) was not subject to the requirement under Article 1(1) of CERD. On the other hand, obligations under CERD are conditioned by the requirement concerning the target of racial discrimination under Article 1(1). As a result, one act breaches one obligation, but not another.

The fourth pattern concerns non-aggravation measures that order parties to refrain from aggravating or extending the dispute. It is true that non-aggravation measures are in ‘addition’ to (Qatar v. UAE, Order 2019 [28]) and ‘complementing’ (Costa Rica v. Nicaragua, Order 2011 [62]) conventional measures aimed at preserving the rights of the parties and, consequently, that the former cannot be indicated independently of the latter. Substantively, however, non-aggravation measures can be independent of substantive law because, unlike conventional measures, their scope goes beyond the preservation of rights per se (e.g., ICSFT/CERD, Judgment 2024 [396]-[398]). It should be concluded that, if the ICJ found a breach of conventional provisional measures, a breach of a non-aggravation measure may also be at play, even in the absence of a breach of substantive law.

According to the relevant jurisprudence, obligations under provisional measures can be different to, and thus independent of, those under substantive law. As a consequence, an act of a State, even when lawful under substantive law, nonetheless may breach obligations under provisional measures.

  1. Legal grounds for independent obligations

Several legal grounds may justify the independence of obligations under provisional measures from those of substantive law and/or jurisdictional basis.

First, obligations under provisional measures stem from Article 41 of the ICJ Statute, independently of substantive law (LaGrand, Judgment 2001 [109]). In other words, the legally binding force of provisional measures does not arise, for example, from the Genocide Convention, but directly from the ICJ Statute.

Second, the scope of obligations under provisional measures, corresponding to plausible rights, is different to, and broader than, that corresponding to definitive rights under substantive law. While the former is not strictly subject to substantive law conditions, the latter is subject to such conditions, as was the case in ICSFT/CERD.

Third, by Article 75(2) of the Rules of Court, the ICJ confers upon itself the power to indicate measures that are, in whole or in part, other than those requested. This power enables the Court to expand the scope of requests and, consequently, to indicate provisional measures independent of jurisdictional basis and substantive rights/obligations. As Article 75(2) allows the Court to depart from the parties’ petita, there can be no concern about an excess of power (ultra petita).

  1. Provisional measures in Allegations of Genocide

Allegations of Genocide resembles the third pattern, in the sense that obligations under the provisional measures are independent of those under substantive law (i.e., the Genocide Convention). The ICJ is able to find a breach of the former while denying a breach of the latter, on the following grounds.

First, in the PO Judgment, the ICJ concluded that it lacked jurisdiction ratione materiae on the second aspect of the dispute (i.e., the use of force) (Judgment 2024 [147]). However, in substance, this must be understood as denying a breach of obligations by Russia, because: (1) the ICJ confirmed the existence of a dispute on two aspects (ibid. [51]). This means that its jurisdiction, admitted prima facie at the PM phase, based on a mixed dispute (Order 2022 [45]), was definitively confirmed by the ICJ; (2) when denying its jurisdiction ratione materiae, the ICJ examined in detail the grounds for justifying the plausible right of Ukraine, raised at the PM phase (Judgment 2024 [141]-[147]); and (3) the ICJ, not directly denying its jurisdiction ratione materie, concluded that the ‘acts [of Russia] are not capable of constituting violations of the provisions of the Convention’ (ibid. [147]). It is clear that the PO Judgment rejected the possibility of Russia’s breach of obligations under the Genocide Convention.

Second, the obligation under the first provisional measure (i.e., immediate suspension of military operations) is independent of substantive law (i.e., the Genocide Convention), since, on its face, it does not contain any requirements of the Genocide Convention. In itself, this obligation falls outside the scope of the Genocide Convention. This approach is likely to give rise to questions as to why this measure went beyond the scope of the Genocide Convention. The answer is simple: the ICJ has exercised its power, under Article 75(2) of the Rules of the Court, to indicate measures that are, in whole or in part, other than those requested (Order 2022 [79]). Such power enables the ICJ to indicate provisional measures which do not fall within the provisions of substantive law.

For these reasons, the obligations under the provisional measures are independent of the substantive obligations imposed on Russia by the Genocide Convention and, therefore, remain in force and legally binding on Russia. It follows that in line with ICFST/CERD, the ICJ is able to find that Russia’s ongoing use of force, unabated following the PM Order and until the merits Judgment, is in breach of the obligations under the first two provisional measures, irrespective of whether it breaches obligations to refrain from the use of force under the Genocide Convention (and/or indeed whether such obligations in fact exist under the Genocide Convention). What is more, depending on the circumstances, it is likely that there will also be a breach of the third provisional measure of non-aggravation.

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Matei Alexianu says

March 16, 2024

Professor Tamada: Thank you for this very interesting piece. The comparison of the obligations under provisional measures and the substantive law is particularly insightful. I agree that the Ukraine/Russia provisional measures created obligations independent of the Genocide Convention; if anything, they seem to flow more directly from the UN Charter’s prohibition on aggression. And I agree that, should the measures still be in place, the Court could find that Russia breached them without finding that it also breached the Genocide Convention. This is why I argue that a remedy for Ukraine is still in play (but only for the breach between 2022 and 2024).

I am not sure, though, that this is enough to preserve the validity of the provisional measures beyond a dismissal for lack of jurisdiction. In my view, the Ukraine/Russia PO Judgment [para 139] essentially confirmed (ex post) that two of the criteria for indication of provisional measures were not in fact met: jurisdiction and the plausibility of rights (under the Convention). The Court confirmed that it lacked jurisdiction ratione materiae as to Ukraine’s claims about Russia’s military operation because the acts alleged by Ukraine “are not capable of constituting violations” of the Genocide Convention [para 147]. (I am wondering why you say that the ICJ was “not denying its jurisdiction ratione materiae" when the language at paras 144 and 149 is explicit on this point?) Moreover, as you note, in this same discussion the Court has also implicitly found that Ukraine does not have a right not to be subjected to Russia’s military operation under the Genocide Convention.

Either of these conclusions—on jurisdiction and rights under the Convention—precludes the continued validity of the provisional measures, in my view. If the Court were to consider Ukraine’s 2022 request afresh, it could no longer order the same measures given its conclusions in the PO Judgment. Even setting aside the Court’s requirements for provisional measures, indicating provisional measures despite a lack of jurisdiction would violate Article 36 of the ICJ Statute. Therefore, neither Article 41 of the Statute nor Article 75(2) of the Rules can be read to permit such a move by the Court.