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Home Posts tagged "ICFST"

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…