Alan Feler, Law degree at University of Buenos Aires, LLM candidate in Public International Law at University of Amsterdam.

In its judgement of 8 November 2019, on the Application of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (Ukraine v. Russian Federation), Preliminary Objections, the International Court of Justice (ICJ) found that it has jurisdiction to hear Ukraine’s complaints about alleged violations of Russian Federation’s (Russia) obligations under ICSFT and ICERD. The judgement constitutes a steppingstone in that clarified the personal scope of application of article 2 ICFST and defined the character of the preconditions to exercise its jurisdiction set out in article 22 ICERD. Furthermore, it also represents a partial victory for Ukraine as part of a broader dispute with Russia and it also confirmed ICJ’s recent openness to discuss human rights violations.

Facts

On its application for proceedings, Ukraine claimed: a) that Russia had sponsored illegal armed groups who conducted acts of terrorism in Eastern Ukraine during the spring of 2014; b) that it did not prevent acts of terrorism financing; and c) that the State was responsible for acts of terrorism committed by its proxies, thus violating its obligations under ICSFT. Regarding ICERD, Ukraine alleged that Russia had conducted and promoted a racial discrimination campaign against Crimean Tatars and ethnic Ukrainian communities living in Crimea, being responsible for acts of torture, murder, and disappearances, among others.

As a basis for the ICJ’s jurisdiction, Ukraine indicated article 24 (1) ICSFT and article 22 ICERD, which respectively contain compromissory clauses. Both States are parties to those conventions, without any relevant reservation at the time of proceedings. Russia responded that: (i) the acts forming the basis of the dispute fell outside the material scope of both instruments; (ii) the procedural preconditions to bring the case before the ICJ were not fulfilled; (iii) the Court should declare the case inadmissible under ICERD, since Ukraine had not exhausted the local remedies.

Key holdings

The Court first determined that the object of the disputes were the alleged breaches of Russian’s obligations to prevent and suppress acts of terrorism financing, under ICSFT; and the sponsorship and incitement of racial discrimination under ICERD.[1] As for the former, the ICJ resorted to the rules of interpretation contained in the Vienna Convention on the Law of Treaties (VLCT, articles 31-33) to examine if the expression ‘any person’ in article 2 could cover State officials, as parties presented opposing views.[2] By looking at ICSFT’s purpose, which is the prevention of terrorism financing, an offence committed by individuals, the ICJ understood that ‘any person’ encompasses both private persons and State agents, as the instrument did not provide for exclusions on any category of people.[3] It thus concluded that Ukraine’s allegations fell within the treaty’s ratione materiae, and that the State had made a genuine attempt to settle the dispute through negotiations, and arrange arbitration proceedings when the latter became deadlocked.[4]

Secondly, the Tribunal analysed ICERD and it briefly recognized that the measures Ukraine complained about could have an adverse impact on the enjoyment of certain rights for the aforementioned ethnic groups in Crimea.[5] Facing Russia’s arguments that the mechanisms set out in article 22 (negotiation and procedure before the Committee on the Elimination of Racial Discrimination (CERD)) were cumulative requirements before bringing the dispute, the ICJ considered that: (i) the instrument provided two different means to achieve the same purpose of settling a dispute; (ii) ICERD’s object and purpose was to eliminate racial discrimination without delay.[6] As it would be unreasonable to impose an additional obligation to negotiate under art. 11 (2), the Court understood that the procedural conditions in article 22 were alternative, and that Ukraine had genuinely attempted to negotiate.[7] It finally dismissed Russia’s objection to admissibility, by explaining that the duty to exhaust local remedies under ICERD was not applicable to inter-State disputes, where an alleged pattern of conduct is challenged.[8]

State responsibility overshadowed

The Russian Federation advanced an argument consisting of the necessary State’s international responsibility under article 4 to the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) if the Court admitted that ‘any person’ under ICSFT also entailed State officials,[9] which seems logical from an internal perspective of the law. Nevertheless, while the ICJ confirmed that States financing acts of terrorism lies outside the treaty’s scope, it just dogmatically indicated that if a State official did it, it would not engage the responsibility of the State concerned.[10]

Where ICSFT imposes obligations on States to prevent individual offences, the difference between an act committed by a private person and a State official cannot be overlooked, due to the latter’s position of power, network and privileges attached to their functions. Broadening the personal scope of ICSFT is certainly positive as it better fits with its purpose, but it is regrettable that the Court did not provide further reasoning, nor listed its practical consequences, given the possible effects on the rules of attribution under ARSIWA, as Judge Xue has correctly pointed out.[11] Besides, it is not clear why the Court only decided to address ICSFT’s personal scope of application, leaving for the merits the many other arguments Russia put forward.

A glimpse of hope for future human rights complaints

As for ICERD, the ICJ finally clarified the alternative character of the preconditions set out in article 22, after resisting to do so in Georgia v. Russia[12] and Qatar v. UAE.[13] Settling this controversy provides a useful guidance for States to bring potential claims in the future, so they avoid possible objections to the Court’s jurisdiction. The Tribunal employed a teleological interpretation method, choosing the outcome which would best follow the context and purpose of the treaty.[14] Nevertheless, it might also undermine the CERD’s role as an inter-States’ dispute settlement mechanism, in light of the lengthy process contained in articles 11-13 and the non-binding nature of its conclusions, if seen from an external normative approach. Regarding the obligation to negotiate, it is remarkable that Ukraine learned the lesson from Georgia v. Russia: negotiations should be meaningfully conducted.

In this line of thought, the decision may represent a step towards addressing human rights violations, an approach taken by the Court in recent judgements such as Qatar v. UAE,which from an external realist perspective suggests that it might be aware of the criticism received after the Jurisdictional Immunities case.[15] Although it is unlikely that the ICJ will turn itself into a human rights court, it still could play a significant role, considering that a compromissory clause to bring disputes before it is part of many universal human rights treaties.

International courts as limited discussion forums

The ICJ first acknowledged that the disputes beforehand were part of a complex scenario, a circumstance which did not prevent the organ from intervening.[16] Although the claims Ukraine brought were limited to the treaties invoked, it is well known that Russia’s annexation of Crimea in 2014 and its subsequent political circumstances certainly underlie these proceedings. Seen from a realist perspective, the judgement is valuable beyond itself, as it may indirectly support other claims Ukraine made before the international community. Once it realized that the Security Council’s doors were closed because Russia is a permanent member, Ukraine has explored other avenues at international tribunals, such as the European Court of Human Rights and the Permanent Court of Arbitration. However smart and risky these moves might be, on the one hand they reveal that States still entrust their disputes to international adjudication bodies, thus having a positive and reinforcing function. This boost of confidence might have led the ICJ to be less stringent when examining Ukraine’s allegations under ISCFT, which had previously deemed as not plausible in the order for provisional measures, or to carefully avoid providing definitions until the decision on the merits.[17] On the other hand, Ukraine’s strategy also exhibits its limits, because tribunals must only address what falls within the object of the dispute, regardless of how bigger the picture could be.

Final remarks and expectations about the merits

The judgement certainly develops the content of some obligations. It was the first opportunity where the ICJ addressed duties under ICSFT and it settled the controversy about article 22 CERD, though the Tribunal could have devoted further attention to provide more solid legal foundations on some contested issues. Confronted with a demand to balance complex interests, it managed to separate the legal dimensions from broader political considerations, thus enhancing its legitimacy as a dispute settlement mechanism. Should the ICJ keep it this way and deepen its human rights trend, a higher degree of accuracy might be helpful.

Since the Court left some questions unanswered, the judgment on the merits is highly awaited. The ICJ’s authoritative definition of funds, intention, and knowledge under ICSFT will be extremely useful for determining the content of States’ obligations regarding terrorism financing suppression. In this regard, Ukraine may have a hard time when sustaining its allegations. Moreover, the possibility of attributing certain acts of terrorism to Russia, on the basis it sponsored or at least failed to prevent them, as Ukraine claimed, could confirm or challenge the applicability of the effective control test for the attribution of these acts to Russia.

Besides, deciding whether Russia violated its obligations under ICERD could provide some anticipatory guidelines on how the Court will rule on Qatar v. UAE case, as well as it might affect the interpretation given to the treaty by the CERD. Even if Ukraine has some chances of success with its allegations under ICERD, the ICJ will need to be careful to if it wishes to avoid determining the status of Crimea and the legality of Russia’s occupation.

In any case, the final judgment will not be issued in the short-term. Given the Court’s extension of the time limit for Russia’s counter-memorial until April 2021 despite Ukraine’s opposition,[18] the Tribunal does not really seem hurried to decide on the merits. A declaration of Russia’s international responsibility under ICERD and/or ICSFT can be potentially instrumental to advance Ukraine’s legitimate claims before the international community, although it may also have no impact at all. In the current situation, it looks like Ukraine has much more to gain than to lose. A decision on the merits can also shape the ICJ’s role in this new decade, as just another dispute settlement mechanism, or as an actor of international public authority,[19] in the context of a battle between formalist and instrumentalist approaches.

[1] Judgement, para 31-32

[2] Judgement, para 57

[3] Judgement, para 59-61

[4] Judgement, para 64; 70 and 77

[5] Judgement, para 96

[6] Judgement, para 110-111

[7] Judgement, para 113 and 120

[8] Judgement, para 130

[9] Judgement, para 44

[10] Judgement, para 61

[11] Dissenting Opinion of Judge Xue, para 9

[12] ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary objections, Judgement of 1° April 2011

[13] ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Request for the indication of provisional measures, Order of 14 June 2019

[14] Judgement, para 111

[15] ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3° February 2012

[16] Judgement, para 28

[17] Judgement, para 41 and 58

[18] ICJ, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Order of 13 July 2020

[19] A. von Bogdandy & I Venzke, In Whose Name? A Public Law Theory of International Adjudication (Oxford University Press, 2014), p. 100