Ukraine Versus Russia: In early January 2016, Ukraine affirmed its intention to bring a claim against Russia before the ICJ under the International Convention for the Suppression of the Financing of Terrorism (‘Financing of Terrorism Convention’). Further announcements were made in late January and February 2016 as to both an additional claim in the ICJ under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and a claim under the United Nations Convention on the Law of the Sea (UNCLOS). This article provides a brief overview of pending and prospective cases originating from the conflict between Russia and Ukraine.
Cases pending before international court and tribunals
Ukraine is currently seeking to challenge Russia’s actions on its territory in the European Court of Human Rights and the International Criminal Court. Three inter-State cases initiated by Ukraine concerning Russia’s actions in Crimea and Eastern Ukraine are currently pending before the ECtHR. In September 2015, Ukraine also lodged a Declaration under Article 12(3) of the Rome Statute of the International Criminal Court recognising its jurisdiction with respect to the acts committed on its territory since 20 February 2014. It is true that acceptance of the jurisdiction of the ICC by Ukraine may not necessarily lead to the prosecution of Russian citizens fighting in the Eastern Regions. It is, nonetheless, another avenue used by Ukraine to put the conflict between the two States before international judges.
Russia’s actions in Crimea and Eastern Ukraine have also resulted in individual cases being brought against Russia at the international level under international human rights law and international foreign investment law. As of October 2015, more than 1,400 applications seemingly related to the events in Crimea or Eastern Ukraine, lodged against both Russia and Ukraine or against one of those States, are pending before the ECtHR.
Several cases were initiated before the PCA against Russia under UNCITRAL rules apparently concerning investments located in Crimea. One of these cases, for instance, concerned interference with property situated in Crimea. Incidentally, in reply to the commencement of the arbitral proceedings in this case, Russia sent a letter stating that it did not recognise the jurisdiction of the arbitral tribunal. Despite Russia’s request not to regard the letter as consent to participation in arbitral proceedings, the tribunal considered the letter to be Russia’s objection to its jurisdiction under UNCITRAL Rules.
Potential claims before the ICJ
The prospective claims under the Financing of Terrorism Convention and CERD respectively would represent further attempts by Ukraine to bring before an international adjudicatory body issues arising from Russia’s annexation of Crimea and its intervention in eastern Ukraine. Ukraine is prevented from putting the annexation of Crimea and the conflict in the east directly before the ICJ, since Russia has not made an ‘optional clause’ declaration accepting as compulsory the Court’s jurisdiction and, it hardly needs saying, the two States have not entered into any special agreement to submit a case to the Court .
Georgia faced a similar obstacle in relation to the armed conflict with Russia in August 2008 when it brought before the ICJ claims relating to events in Abkhazia and South Ossetia between 1992 and 2008. The claims were brought under CERD, which contains in Article 22, a compromissory clause to the effect that any dispute concerning the ‘interpretation or application’ of the Convention shall be referred to the ICJ should the States Parties in question fail to settle it ‘by negotiations or by the procedure expressly provided for in this Convention’. In Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), the ICJ found that Article 22 spelt out conditions for seisin of the Court. Those conditions were not fulfilled in the case at hand since Georgia had failed to attempt to negotiate CERD-related matters with Russia.
The Financing of Terrorism Convention contains a similar compromissory clause, which provides two cumulative conditions for seisin of the ICJ. Firstly, it speaks of ‘any dispute […] concerning the interpretation or application of the Convention which cannot be settled through negotiation within a reasonable time’. Secondly, it requires such disputes to be submitted to arbitration. It is only if the parties fail within six months to agree on the organisation of the arbitration that the dispute can be referred to the ICJ. Neither Russia nor Ukraine opted out of the compromissory clause, as is permitted by the Convention.
Judging from the statements by Ukrainian officials in the media, it seems that Ukraine has drawn instructive conclusions from the judgment in the Georgia v. Russia case. It appears that Ukraine and Russia have been holding talks under the Financing of Terrorism Convention since 2014, when the first statements on a potential case before the ICJ were made. The Minister of Justice has also revealed that Ukraine was to demand the constitution of an arbitral tribunal. According to the Deputy Minister for Foreign Affairs, consultations with Russia under the CERD are pending. All this indicates that Ukraine is taking steps to comply with the requirements set out in the compromissory clauses of the respective Conventions before lodging a claim with the ICJ. The fact remains, however, that Ukraine, like Georgia before it, faces a ‘Cinderella problem’, meaning—in the words of Judge Greenwood of the ICJ, speaking extra judicially and generally—that it is having ‘to try and squeeze a rather large, perhaps ungainly force, into the glass slipper of a jurisdictional clause that really is far too small for the case [it] want[s] to bring’.
The scope of the Financing of Terrorism Convention is limited to providing or collecting funds to be used to commit acts defined by the Convention (articles 1 and 2). Ukraine is restrained by the scope of the Convention in its choice of claims, which will most likely concern Russia’s support with any sort of assets of the pro-Russian rebels fighting in the East. Its claims under the CERD will probably relate to discrimination against Crimean Tatars and Ukrainians in Crimea. At the same time, it is unlikely that matters such as Russia’s military actions in the East per se or its annexation of Crimea will be the subject of adjudication and explicit legal assessment under these Conventions.
Claims under UNCLOS
In January 2016, the Deputy Minister of Foreign Affairs stated that Ukraine also intended to institute proceedings under UNCLOS. Ukraine’s claim concerns the takeover of deposits of mineral resources and unlawful extraction of oil and gas from Ukraine’s continental shelf in the Black Sea; unlawful fishing and preventing Ukrainian fishing companies from fishing in Crimea’s offshore waters; building of a gas pipe line, power lines and a bridge over Kerch Strait; and conducting research on the Back Sea bed without Ukraine’s consent.
Both Ukraine and Russia expressed their consent to be bound by UNCLOS for arbitration by an Annex VII tribunal with regard to disputes generally under the Convention, and by an Annex VIII special tribunal with regard to disputes relating to fisheries and marine scientific research. An arbitral tribunal under Annex VII would be the appropriate body for the adjudication of claims arising from ‘any dispute concerning the interpretation or application of this Convention’. As highlighted in the recent Chagos Marine Protected Area Arbitration (Mauritius v UK) award, however, such a tribunal is mindful of the limits of its jurisdiction, and of any attempts to bring before it as issues supposedly incidental to those under UNCLOS disputes as to matters falling outside its jurisdiction.
The ‘glass slipper’ could perhaps be avoided if Ukraine attempted to have questions that are central to its dispute with Russia, such as the annexation of Crimea, put before the ICJ in advisory proceedings.
A lot will depend on the question that is submitted to the Court and the question that the Court chooses to answer. Advisory proceedings with a favourable outcome may provide an opportunity for Ukraine to obtain an authoritative legal opinion on the status of Crimea which can then be used in other fora, or to deter any future attempts of recognition of Crimea as part of the Russian Federation. Similar motives were behind Serbia’s decision to refer to the ICJ, the question of Kosovo’s secession.
Recourse to advisory proceedings allowed Serbia to slow down the rate of international recognition of Kosovo and to quell some internal discontent regarding the secession. However, the final outcome in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Kosovo Advisory Opinion) was of no assistance to Serbia’s attempts to reverse the process of Kosovo’s independence becoming a reality and gaining further recognition. The ICJ found that Kosovo’s Declaration of Independence did not violate international law. In contrast, given the differences between the situation of Crimea’s annexation and Kosovo’s secession (which I have discussed extensively elsewhere), but also depending on the question put before the Court, it is probable that the Court’s opinion will favour Ukraine’s position.
Incidentally, in the Kosovo Advisory Opinion the ICJ found that the motives of individual States that sponsor or vote in favour of resolution requesting advisory opinion do not affect the Court’s decision to exercise its advisory jurisdiction. Ukraine may, however, face certain other difficulties in obtaining consideration of the issue on the merits. Firstly, in order for an issue to be referred for advisory proceedings before the ICJ, the support of a two-third majority in the UN General Assembly (129 Member States) is needed. The General Assembly Resolution 68/262 on Territorial Integrity of Ukraine, calling the States not to recognise any alteration in the status of Crimea in March 2014, received wide support with 100 States voting in favour, 11 against and 58 abstaining. Only seven States, including Russia, currently recognise Crimea as part of the Russian Federation. Under such circumstances it should be realistic for Ukraine to gather support for referral of the Crimean issue to the ICJ for an advisory opinion.
Secondly, it can be argued that the Court should decline to exercise its jurisdiction based on the Eastern Carelia principle if Russia objects to advisory proceedings. In contrast with the circumstances in the Request for Advisory Opinion concerning the Status of Eastern Carelia, Russia is a UN member, a party to the UN Charter and to the ICJ Statute. In any case, lack of consent by a concerned State to the exercise of advisory jurisdiction does not deprive the Court of its advisory jurisdiction and can only serve as grounds for the decline of jurisdiction for reasons of judicial propriety (Western Sahara; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory). Furthermore, the ICJ has never declined a request in view of the Eastern Carelia principle and seems generally reluctant to refuse requests for advisory proceedings. It is probable that the Court, similar to its approach in the Wall Opinion, will consider the matter in dispute between Ukraine and Russia to be a matter of international peace and security which is of concern to the United Nations.
BY ROLAND YONGYERA
This article appears in our weekly digital law magazine, The Deuteronomy Vol 2, Issue 1 of January 27th 2017
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