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Home Posts tagged "CERD"

 “Vulnerability” versus “Plausibility”: Righting or Wronging the Regime of Provisional Measures? Reflections on ICJ, Ukraine v. Russian Federation, Order of 19 April 2017

Published on May 5, 2017        Author: 
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The ICJ order of 19 April 2017 in the case Application of the international convention for the suppression of the financing of terrorism and the international convention on the elimination of all forms of racial discrimination (Ukraine v. Russian Federation) seeks to safeguard the interests of ethnic minorities in Crimea, and to protect the victims of armed conflict in the eastern regions of Ukraine.

As Iryna Marchuk reported on this blog, the ICJ indicated provisional measures only on the basis of the CERD but not on the basis of ICSFT. The Court notably obliged the Russian Federation to refrain from constraining the representative body of the Crimean Tartars and to ensure the availability of education in Ukrainian language in Crimea (para. 102). The Court also “reminds” both parties of the Minsk Agreement on the Donetsk and Luhansk regions, and “expects” them to work towards its full implementation (para. 104).

Has the Court hereby, once again (and maybe contre gré), acted as a protector of human rights and minorities more than as the quintessential inter-state dispute settlement body? And does this tell us anything about the relative importance of individual rights over inter-state obligations in the web of international law? The two buzz words “plausibility of (state) rights” versus “human vulnerability”, juxtaposed by Judge Cançado Trindade in his separate opinion (esp. in paras 36 et seq) even insinuates a possible conflict between two paradigms. This blog explores the dualism of the states’ international legal status and individual international law-based rights, and the opportunities and risks of the “humanisation” of international law, manifest in these proceedings. Read the rest of this entry…

 

Ukraine v Russia (Provisional Measures): State ‘Terrorism’ and IHL  

Published on May 2, 2017        Author: 
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On 16 January 2017, Ukraine filed an Application against Russia before the International Court of Justice (‘ICJ’ or ‘the Court’), founding the Court’s jurisdiction (in part) on the compromissory clause (Article 24) of the Terrorism Financing Convention (‘ICSFT’). On the very same day, Ukraine filed a Request for the indication of measures of protection. On 19 April 2017, in respect of the claim based on the ICSFT, the Request was rejected, although the Court did order provisional measures in support of the claim based on CERD.

The Application and the Court’s Order on provisional measures (‘Order’) have been the subject of several blog posts, including here,  here and here, and I will not revisit their content.  Instead, I’d like to further consider some of the issues raised by the Court’s refusal to award provisional measures in respect of the ICSFT.  As noted in the terrific post by Vincent-Joel on ‘Terrorism and the World Court’, this dispute presents an important opportunity for the Court not only to clarify the nature of certain counter-terrorism obligations, but equally to interpret the ICSFT in a ‘forward-looking and purposive’ manner which reflects the post-9/11 counter-terrorism climate.  It also bears noting that this case is an opportunity for the Court to address the increasingly common – and increasingly dangerous – State practice of materially supporting non-State armed groups (‘NSAGs’), even if, for jurisdictional reasons, it must do so through the prism of terrorism financing.

There are two substantive issues which were at stake in making the case for provisional measures that I want to address:  First, Ukraine had to establish the Court’s prima facie jurisdiction under the ICSFT, in part based on whether ‘the acts complained of […] are prima facie capable of falling within the provisions of [the ICSFT]’.  Second, given that most of the NSAG conduct underlying the Application took place within the context of an armed conflict (‘AC’), the characterization of that conduct as ‘terrorist’ and falling within the scope of the ICSFT, or as merely in breach of (or at least governed by) International Humanitarian Law (‘IHL’), is put in issue.  Read the rest of this entry…

 

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

Published on January 26, 2017        Author: 
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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…