PISM Spotlight: ICJ Order on Provisional Measures against Russia

On 19 April, the International Court of Justice (ICJ) delivered its first Order in a case submitted by Ukraine concerning the 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.

What does Ukraine demand?

Ukraine instituted proceedings against Russia on the basis of those conventions that confer jurisdiction on the ICJ. It requests that Russia cease supplying funds, including in kind contributions of weapons and training, to illegal armed groups of the Donetsk People’s Republic and Lugansk People’s Republic, stop the persecution of Ukrainian-speaking inhabitants of Crimea, and abolish the ban on the functioning of Crimean representative institutions such as Mejlis. In addition, Ukraine claims compensation for the damage caused by the shelling of cities in eastern Ukraine, and compensation for relatives of the victims of the Malaysian Airline Flight MH17. Ukraine also filed a request for the indication of provisional measures to protect its rights, pending the determination of the case on its merits.

What effect does the order have?

It is provisional and does not prejudge the question of the jurisdiction of the ICJ or who will win the case. However, it prohibits Russia from imposing restrictions on the functioning of the representative institutions of the Crimean Tatars, and orders the suspension of those already in force (banning the Majlis). It also imposes a legal obligation on Russia to make education in the Ukrainian language available in Crimea. Both sides should refrain from aggravating the dispute. Russia wanted the claim to be dismissed, so the Order bodes well for Ukraine, especially given the fact that the operative clause was adopted by a majority of 13 votes to three concerning the Majlis, and unanimously in other matters.

What will happen next?

At a later stage, the Court must decide definitively whether it has jurisdiction over the case. The parties will certainly use every procedural opportunity to defend their position. This will affect the length of proceedings, but the question of jurisdiction should be resolved by next year. If the Court decides it has jurisdiction, the judgment may be passed within four years, the average time for proceedings before the ICJ. It includes two phases. The written procedure consists of the submission of arguments by the parties in support of their own position. During the oral stage, the Court hears agents, counsel, and advocates of both parties, as well as witnesses and experts. The judgment is decided by a majority of the judges. It is final, with no right to appeal.

What does this mean for Poland?

ICJ judgements are not a generally applicable source of international law, and are binding only between the parties to a dispute. However, they create judicial interpretation, and so constitute a reference point for other states in the application of international law. Poland has consistently expressed its support for Ukraine, condemning Russia’s aggression and the illegal annexation of Crimea. The ICJ Order is fully in line with the position expressed in the opinion of the Advisory Committee on Foreign Affairs of the Republic of Poland on the annexation of the Crimea, and the statement issued by the Ministry of Foreign Affairs on the third anniversary of the illegal annexation of Crimea by Russia.