Ukraine’s ICJ Provisional Measures: A Narrow Path to Remedies

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On February 2, the International Court of Justice dealt Ukraine’s case against Russia under the Genocide Convention a heavy blow when it dismissed the majority of the claims for lack of jurisdiction. The decision effectively transformed the case into one about whether Ukraine violated international law (by committing genocide), a far cry from Ukraine’s original application. And it appears to preclude any meaningful remedy for Russia’s brutal war at the merits stage. But Russia’s blatant breach of Ukraine’s provisional measures, which are binding, raises the possibility that the final judgment could nevertheless address Russia’s aggression, albeit indirectly. This post discusses the jurisdictional judgment’s implications for Ukraine’s two key provisional measures–the orders that Russia should suspend its military operations in Ukraine and ensure that no armed units or other persons within its control contribute to those operations. (The third measure, which prohibits either state from aggravating the dispute, probably survives until the merits judgment but is much more limited in scope.)

The judgment’s effect on the March 2022 provisional measures

The threshold question is whether the provisional measures survive the jurisdictional judgment. As to timeline, the Court has established that provisional measures remain in force until the final decision of a case–whether at the jurisdictional stage or on the merits. In the Anglo-Iranian Oil case (p.124), the Court dismissed the case for lack of jurisdiction and held: “It follows that [the provisional measures order] ceases to be operative upon the delivery of this Judgment and that the Provisional Measures lapse at the same time.” (cf. Georgia v. Russia). Meanwhile, in the Avena case, the Court confirmed that the same applies to provisional measures in cases that survive until final judgment.

Here, the Court’s judgment was silent about the fate of the 2022 provisional measures order, possibly because part of the case may now proceed to the merits. This raises an interesting question of first impression for the Court: what happens to provisional measures when the Court dismisses the part of the case on which provisional measures were based but allows the rest of the case to continue to the merits? Has the case reached final judgment for the purposes of the provisional measures related to Ukraine’s dismissed claims?

It’s hard to see how it could be otherwise. In its judgment (¶56), the Court noted that Ukraine’s case had two “fundamentally different” aspects: the claim that Ukraine did not commit genocide in the Donbas, and the claims that Russia violated the Genocide Convention by invading Ukraine and recognizing the independence of two regions based on a false claim of genocide. Ukraine’s provisional measures clearly fall within the second category, which the Court dismissed. The Court’s conclusion that it lacks jurisdiction over this part of the case essentially vitiates the prima facie jurisdiction finding at the provisional measures phase and cancels the measures. Another way to see this is that the right that the measures were meant to protect (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”) also falls within the second set of dismissed claims. Therefore, the provisional measures lapsed with the delivery of the judgment on February 2, 2024.

The more complex question is whether the judgment on jurisdiction invalidated or voided the provisional measures. The Court has never explicitly addressed this issue, despite having two opportunities to do so since its 2001 decision that provisional measures are binding. In its Georgia v. Russia provisional measures order (¶149), the Court opened the list of measures with an introductory clause reminding “the Parties of their duty to comply with their obligations under the International Convention on the Elimination of All Forms of Racial Discrimination [CERD].” Three years later, the Court dismissed the case for lack of jurisdiction. In its judgment (¶186), after holding that the earlier provisional measures order lapsed upon the delivery of the judgment, the Court noted: “The Parties are under a duty to comply with their obligations under CERD, of which they were reminded in that Order.” One scholar has concluded that “the Court clearly intended not to declare provisional measures void retroactively.” But the language is equivocal; it could equally be construed as saying that the parties’ treaty obligations would continue to apply independently of the provisional measures, which had become void.

More recently, in its Qatar v. UAE judgment dismissing the case on jurisdictional grounds, the Court was silent as to the fate of the earlier-ordered provisional measures–much like in this case. Thus, the Court’s cases provide little guidance as to the ex post validity of provisional measures after jurisdictional dismissal. The conclusion would seem to be that, until told otherwise, Ukraine has a colorable claim that its provisional measures were in force over the nearly two-year period between March 16, 2022 and February 2, 2024.

The possibility of a remedy for Russia’s breach of provisional measures

The ongoing validity of provisional measures until February 2024 would be of little use to Ukraine unless it could obtain some relief from the Court. Even a declaration of Russia’s violation of those measures would be symbolically important and could bolster Ukraine’s case for reparations in other fora, such as an international claims commission. But whether any relief is feasible hinges on the Court’s jurisdiction to consider Russia’s breach of the provisional measures in the final judgment. And it is here that Ukraine will face its steepest uphill battle.

In theory, Ukraine should have a plausible case for standalone jurisdiction to adjudicate compliance with the provisional measures. The idea that provisional measures are an autonomous legal regime was championed by the late Judge Cançado Trinidade in a series of separate opinions between 2013 and 2018. Some scholars agree, pointing to the Avena Interpretation case as an example of the Court finding a separate basis of jurisdiction to rule on non-compliance with provisional measures.

In practice, however, the Court has yet to fully adopt this approach. Avena Interpretation appears to have been an outlier, limited to the context of judgment reinterpretations under Article 60. In the single instance where the Court has specifically addressed its jurisdiction over autonomous measures, it found it to stem from the jurisdiction over the merits of the dispute. In LaGrand, it held: “Where the Court has jurisdiction to decide a case, it also has jurisdiction to deal with submissions requesting it to determine that an order indicating [provisional measures] has not been complied with.” And, when the Court dismissed Georgia v. Russia and Qatar v. UAE for lack of jurisdiction–both after Avena Interpretation–it stayed silent about non-compliance with provisional measures, even though both applicants had sought a declaration that the measures were violated.

Zhenni Li has recently argued that there is a “reasonable legal basis for the Court to endorse the autonomy of provisional measures when the time is ripe.” Could the time (and the case) now be ripe, given the gravity of Russia’s legal violations and the recent change in composition of the Court? Perhaps–but the lopsided vote to decline jurisdiction in this case and the Court’s latent concern with legitimacy in the face of cases pushes jurisdictional boundaries should temper any optimism.

Moreover, even if the Court were to decisively adopt the autonomous regime view in this case, its past practice suggests that it would limit itself to declaratory relief. In Costa Rica v. Nicaragua (¶139), the Court declined to award compensation or costs to Costa Rica, finding that a declaration that Nicaragua violated the provisional measures provided “adequate satisfaction for that breach.” And just two days before the judgment in Ukraine v. Russia (Genocide Convention), in the other case involving Ukraine and Russia, the Court found that Russia violated provisional measures, including by launching its invasion of Ukraine. Yet the Court did not “find it necessary or appropriate to order any other remedy requested by Ukraine” (¶403).

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The path for meaningful relief for Ukraine at the ICJ is now narrow. The best that Ukraine can realistically hope for at the merits stage is a declaration that Russia breached the Court’s provisional measures by continuing its military invasion between March 2022 and February 2024. That in itself would be significant and may be reason enough for Ukraine to continue the case. But the substantial risk that the Court will decline even such a limited remedy means that Ukraine will need to look elsewhere for comprehensive reparations for Russia’s aggression.

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Alex Bedrosyan says

February 20, 2024

In the other Ukraine v. Russia judgment issued on January 31, 2024, the ICJ addressed this very issue. Ukraine lost on the vast majority of its merits claims under the relevant treaties, including the claim related to the provisional measure ordered. Yet the Court still found that Russia breached the provisional measure order - including by aggravating the dispute through its invasion. Nonetheless, the Court stated that the declaration of violation of the order was a sufficient remedy, particularly since the lack of violation on the merits precluded any ordering of restitution or compensation (para. 402).

Matei Alexianu says

February 20, 2024

Hi Alex,

Yes - I agree that the CERD/ICSFT judgment is illustrative, and strongly suggests that the Court will go no further than a declaration of Russia's violation of the provisions measures order. But this case is more complicated because the Court has ruled it has no jurisdiction over the part of the case under which the provisional measures were ordered, whereas all aspects of the CERD/ICSFT case survived preliminary objections. So it's very possible that here, the Court will decline to adjudicate Russia's compliance with the provisional measures, even for the purposes of a declaration only.