As in the Racial Discrimination case, Russia participated in the provisional
measures stage of the proceedings,
24 and had exchanged notes verbales with
Ukraine.
25 It maintained that it had complied with its obligations under the conventions.
26 Further, it claimed that the alleged acts could not be classified as ‘terrorism’,
and so the ICSFT, which protects only specific rights, could not establish jurisdiction.
27 As in Racial Discrimination, therefore, Russia’s objection to provisional
measures acknowledged improper conduct, yet contested jurisdiction on the basis
that such conduct did not fall within the relevant conventions. Here, Russian claimed
that Ukraine was instead using the conventions to seek a declaration on the purported
use of force,
28 or else on the status of Crimea.
29 Further similarities to Racial
Discrimination arise in Russia’s claim that the conventions’ dispute resolution procedures were not fulfilled.
30 Russia’s hesitancy towards legal dispute resolution is
evidenced in its statement that Ukraine had deliberately avoided negotiating in order
to bring Russia to the ICJ.
31 Alternatively, Russia argued that conditions for the
grant of provisional measures were not fulfilled.
32 The Court, however, found prima
facie jurisdiction
33 and ordered provisional measures against Russia.
34 Ukraine later
alleged that Russia had not complied with the order.
35
The content of Russia’s objections in the merits stage will only be known once the
case progresses: Ukraine’s memorial on the merits was to be filed by 12 June 2018,
although there is not yet an indication of its claims, and Russia’s counter-memorial
must be filed by 12 July 2019.
36 It thus remains to be seen whether Russia will
dispute the ICJ’s jurisdiction on the merits, and the content of this objection. What is
notable, however, is Russia’s reliance in both this case and Racial Discrimination on
the requirement that the appropriate dispute resolution procedure under each Convention be followed, including where arbitration is the condition precedent. This
demonstrates a willingness to engage in some resolution processes, but a reticence
for adjudication by the ICJ.
24 Application of CERD and ICSFT (Provisional Measures), para. 13.
25 Application of CERD and ICSFT (Provisional Measures), Verbatim Record of 7 March 2017,
para. 12 (Forteau).
26 Id., para. 20 (Kolodkin).
27 Id., paras. 2, 4 (Rogachev). See CERD Art. 2.
28 Id., para. 3 (Kolodkin).
29 Id., paras. 4, 17 (Lukiyantsev).
30 Id., paras. 21 (Rogachev), 56 (Zimmerman), 41 (Lukiyantsev).
31 Ibid.
32 Id., paras. 21 (Forteau), 76–78, 81, 87 (Zimmerman).
33 Application of CERD and ICSFT (Provisional Measures), paras. 31, 39, 62.
34 Id., paras. 99.
35 See, e.g., Ministry of Foreign Affairs of Ukraine, Press Release of 24 April 2018: https://mfa.gov.
mizhnarodnogo-sudu-oon-stosovno-tlumachennya-nakazu-sudu-pro-zastosuvannya-timchasovihzahodiv-proti-rosijsyk.
36 Application of CERD and ICSFT (Order on the Fixing of Time-limits) [2017] ICJ Rep 228.
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291
measures stage of the proceedings,
24 and had exchanged notes verbales with
Ukraine.
25 It maintained that it had complied with its obligations under the conventions.
26 Further, it claimed that the alleged acts could not be classified as ‘terrorism’,
and so the ICSFT, which protects only specific rights, could not establish jurisdiction.
27 As in Racial Discrimination, therefore, Russia’s objection to provisional
measures acknowledged improper conduct, yet contested jurisdiction on the basis
that such conduct did not fall within the relevant conventions. Here, Russian claimed
that Ukraine was instead using the conventions to seek a declaration on the purported
use of force,
28 or else on the status of Crimea.
29 Further similarities to Racial
Discrimination arise in Russia’s claim that the conventions’ dispute resolution procedures were not fulfilled.
30 Russia’s hesitancy towards legal dispute resolution is
evidenced in its statement that Ukraine had deliberately avoided negotiating in order
to bring Russia to the ICJ.
31 Alternatively, Russia argued that conditions for the
grant of provisional measures were not fulfilled.
32 The Court, however, found prima
facie jurisdiction
33 and ordered provisional measures against Russia.
34 Ukraine later
alleged that Russia had not complied with the order.
35
The content of Russia’s objections in the merits stage will only be known once the
case progresses: Ukraine’s memorial on the merits was to be filed by 12 June 2018,
although there is not yet an indication of its claims, and Russia’s counter-memorial
must be filed by 12 July 2019.
36 It thus remains to be seen whether Russia will
dispute the ICJ’s jurisdiction on the merits, and the content of this objection. What is
notable, however, is Russia’s reliance in both this case and Racial Discrimination on
the requirement that the appropriate dispute resolution procedure under each Convention be followed, including where arbitration is the condition precedent. This
demonstrates a willingness to engage in some resolution processes, but a reticence
for adjudication by the ICJ.
24 Application of CERD and ICSFT (Provisional Measures), para. 13.
25 Application of CERD and ICSFT (Provisional Measures), Verbatim Record of 7 March 2017,
para. 12 (Forteau).
26 Id., para. 20 (Kolodkin).
27 Id., paras. 2, 4 (Rogachev). See CERD Art. 2.
28 Id., para. 3 (Kolodkin).
29 Id., paras. 4, 17 (Lukiyantsev).
30 Id., paras. 21 (Rogachev), 56 (Zimmerman), 41 (Lukiyantsev).
31 Ibid.
32 Id., paras. 21 (Forteau), 76–78, 81, 87 (Zimmerman).
33 Application of CERD and ICSFT (Provisional Measures), paras. 31, 39, 62.
34 Id., paras. 99.
35 See, e.g., Ministry of Foreign Affairs of Ukraine, Press Release of 24 April 2018: https://mfa.gov.
mizhnarodnogo-sudu-oon-stosovno-tlumachennya-nakazu-sudu-pro-zastosuvannya-timchasovihzahodiv-proti-rosijsyk.
36 Application of CERD and ICSFT (Order on the Fixing of Time-limits) [2017] ICJ Rep 228.
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
291