Where Two Are Fighting, the Third Has to Adjudicate – Ukraine and the Russian Federation at the International Court of Justice

The first hearing in the dispute between Ukraine and the Russian Federation was held at the International Court of Justice (ICJ) in the Hague on 6th-9th March 2017. The hearing did not relate to the substance of the dispute, but to the request by Ukraine for provisional measures under Article 41 of the ICJ. Despite this, it might be useful to briefly summarize the case and consider Ukraine´s chances to succeed in it.

Thorny path to the International Court of Justice

The International Court of Justice as “the principal judicial organ of the United Nations” (Article 92 of the UN Charter) has the task to resolve disputes between States. This, however, does not mean that any State may submit any case to the ICJ. The Court considers legal disputes only on the condition that it has jurisdiction in such cases. Its jurisdiction can be established in three different ways:

  • The first is the acceptance of the ICJ’s jurisdiction in any dispute relating to a particular State through a declaration made by this State under Article 36 of the ICJ Statute. However, neither Ukraine nor the Russian Federation are among these States; the first option was therefore unavailable here.
  • The second option is to establish the jurisdiction by means of a special agreement. The states in dispute decide together to submit a case to the ICJ, and they conclude a special agreement which usually defines the object of the dispute and the scope in which this object should be considered by the ICJ. Nevertheless, special agreements require both parties to seek to resolve their dispute and that their mutual relations are not too problematic. Once again, neither of these conditions is met in the dispute between Ukraine and the Russian Federation.
  • The last option is to establish the jurisdiction through a jurisdictional clause relating to the ICJ that is contained in an international treaty binding the parties to a dispute. While the number of these treaties is quite impressive at first sight, it might be difficult to choose one. This is so due to the fact that many states, including the Soviet Union and its successor states, have quite consistently formulated reservations to jurisdictional clauses, effectively preventing their use. Yet, Ukraine has been able to identify two relevant treaties binding both Ukraine and the Russian Federation: the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the 1999 International Convention for the Suppression of the Financing of Terrorism (ICFST). These two instruments provide the legal ground for the Ukrainian submissions.

For the time being, it is not yet clear whether the effort of the Ukrainians will be successful. Despite that, the initiation of the proceedings in the ICJ is to be welcomed. And we can only hope that the case will serve - if not to settle the dispute between Ukraine and the Russian Federation - to at least clarify some of the contested legal issues- What constitutes racial discrimination? And which acts in the time of an armed conflict can be considered as terrorism?. 

 Full reflection available here.