Summary of the ICJ Order on Provisional Measures (19 April 2017)
This document summarizes the International Court of Justice's (ICJ) Order on Ukraine's Request for the Indication of Provisional Measures against the Russian Federation concerning the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
- ICSFT (Terrorism Financing): The Court rejected the request for provisional measures, finding that the conditions for plausibility and urgency under the ICSFT were not met (13 votes to 3).
- CERD (Racial Discrimination): The Court indicated provisional measures, finding that the conditions were met to protect plausible rights under CERD.
- Measures Indicated (CERD): The Court ordered the Russian Federation to:
- Refrain from maintaining restrictions on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis (13 votes to 3).
- Ensure the availability of education in the Ukrainian language (Unanimous, 16 votes to 0).
I. INTRODUCTION (PARAS. 1-16)
The Court recalls that, on 16 January 2017, Ukraine instituted proceedings against the Russian Federation with regard to alleged violations of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). On the same day, Ukraine submitted a request for the indication of provisional measures, aimed at safeguarding the rights it claims under those two conventions pending the Court's decision on the merits.
Requests under the ICSFT (Financing of Terrorism)
With respect to the ICSFT, Ukraine asked the Court to order the Russian Federation to refrain from any action which might aggravate or extend the dispute, and to take all measures necessary to prevent the financing of terrorism and to investigate and prosecute those responsible for acts of terrorism, including the shooting-down of flight MH17.
Requests under the CERD (Racial Discrimination)
With respect to the CERD, Ukraine asked the Court to order the Russian Federation to refrain from further acts of racial discrimination, including the suppression of the Mejlis of the Crimean Tatar people and the restrictions on Ukrainian-language education.
II. JURISDICTION (PARAS. 17-57)
A. ICSFT (Paras. 19-35)
The Court determines that it must first satisfy itself that it has prima facie jurisdiction to entertain the case on the basis of the compromissory clauses contained in the conventions invoked by the Applicant.
The Court finds that it has prima facie jurisdiction under Article 24 of the ICSFT to entertain the claims concerning the interpretation, application, or fulfilment of the Convention.
B. CERD (Paras. 36-57)
The Court finds that it also has prima facie jurisdiction under Article 22 of the CERD to entertain the claims concerning the interpretation, application, or fulfilment of the Convention.
III. GENERAL CONSIDERATIONS (PARAS. 58-72)
The Court reiterates that the power to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the rights of either party. The Court will not exercise this power unless it finds that the rights claimed are at least plausible, and that there is a link between those rights and the requested measures. It must also find that there is an urgent risk of irreparable prejudice to those rights.
IV. PROVISIONAL MEASURES UNDER THE ICSFT (PARAS. 73-107)
Plausibility of Rights (Paras. 79-91)
The Court examines whether the rights claimed by Ukraine under the ICSFT are plausible. The Court notes that Ukraine's claims concern the alleged failure of the Russian Federation to take measures to suppress the financing of terrorism.
The Court finds that Ukraine's rights under the ICSFT, while plausible, are not applicable to certain specific incidents alleged (e.g., the shooting down of MH17), which are primarily governed by other treaties and international law rules.
Risk of Irreparable Prejudice and Urgency (Paras. 92-107)
The Court is not satisfied that the current situation poses an imminent risk of irreparable prejudice to the rights of Ukraine under the ICSFT, particularly concerning the financing of alleged groups. The Court is also not satisfied that the matter is urgent.
Conclusion on ICSFT: The Court finds that the conditions for the indication of provisional measures under the ICSFT are not met (13 votes to 3).
V. PROVISIONAL MEASURES UNDER THE CERD (PARAS. 108-164)
Plausibility of Rights (Paras. 118-135)
The Court finds that the rights claimed by Ukraine on behalf of the Crimean Tatars (concerning the Mejlis) and the ethnic Ukrainians (concerning language in education) are plausible under Article 2 and Article 5 of the CERD.
Link between Rights Claimed and Measures Requested (Paras. 136-140)
The Court finds that a link exists between the plausible rights claimed and the provisional measures requested regarding the Crimean Tatars and Ukrainian language education.
Risk of Irreparable Prejudice and Urgency (Paras. 141-157)
The Court finds that the alleged restrictive measures concerning the Mejlis and Ukrainian-language education pose an imminent risk of irreparable prejudice to the rights of the communities concerned. The Court concludes that the matter is urgent.
Measures Indicated (Paras. 158-164)
The Court determines that provisional measures are necessary to prevent irreparable prejudice to the rights of the affected communities under the CERD.
OPERATIVE CLAUSE (PARAS. 165-170)
For these reasons,
THE COURT,
(1) Finds that the circumstances, as they now present themselves to the Court, are not such as to require the indication of any provisional measure under the International Convention for the Suppression of the Financing of Terrorism;
IN FAVOUR: Vice-President Yusuf; Judges Abraham, Bennouna, Tomka, Gevorgian, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Judge ad hoc Skotnikov;
AGAINST: President Abraham; Judges Xue, ad hoc Aksenova;
(2) Finds that the circumstances, as they now present themselves to the Court, require it to indicate provisional measures under the International Convention on the Elimination of All Forms of Racial Discrimination;
IN FAVOUR: President Abraham; Vice-President Yusuf; Judges Tomka, Gevorgian, Bennouna, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Judge ad hoc Aksenova;
AGAINST: Judge ad hoc Skotnikov;
(3) Indicates the following provisional measures:
(a) By thirteen votes to three,
The Russian Federation shall refrain from maintaining or imposing any limitations or restrictions on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis;
IN FAVOUR: President Abraham; Vice-President Yusuf; Judges Tomka, Gevorgian, Bennouna, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Judge ad hoc Aksenova;
AGAINST: Judges Abraham, ad hoc Skotnikov;
(b) Unanimously,
The Russian Federation shall ensure the availability of education in the Ukrainian language;
IN FAVOUR: President Abraham; Vice-President Yusuf; Judges Tomka, Gevorgian, Bennouna, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Judge ad hoc Aksenova, Judge ad hoc Skotnikov;
(c) Unanimously,
Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.