The International Court of Justice on 8 November 2019 delivered the judgment in Ukraine v Russia on the preliminary objections raised by Russia with respect to ICJ’s jurisdiction and the admissibility of Ukraine’s claims under 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). The actual dispute at stake was the unlawful use of force by Russia by conducting a proxy war in eastern Ukraine as well as by illegally annexing Crimea. But Ukraine invoked the breach of these two conventions by instituting proceedings against the Russian Federation with regard to alleged violations by Russia of its obligations under ICSFT and CERD.

Regarding jurisdiction, Ukraine sought to find the Court’s jurisdiction on Article 24, paragraph 1, of the ICSFT and on Article 22 of CERD. Ukraine alleged that Russia through its State organs, State agents has violated its obligations under the CERD by systematically discriminating against and mistreating the Crimean Tatar and ethnic Ukrainian communities in Crimea, in furtherance of a State policy of cultural erasure of disfavoured groups perceived to be opponents of the occupation regime and various other suppressions. It further alleged that Russia was responsible for violations of Article 18 of the ICSFT by failing to cooperate in the prevention of the terrorism financing offenses set forth in Article 2 by taking all practicable measures to prevent and counter preparations in its territory for the commission of those offenses within or outside its territory. The Russian Federation was alleged to have violated Article 18 by failing to take the practicable measures of preventing Russian state officials and agents from financing terrorism in Ukraine and various other accusations.

Ukraine contended that Russia had failed to take all practicable measures to prevent and counter preparations in its territory for the commission of terrorism financing offences in the context of the events which occurred in eastern Ukraine starting from the spring of 2014 and to repress them.

The Court observed that its jurisdiction is based on the consent of the parties and is confined to the extent accepted by them (referring to Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, 2018). Article 24, paragraph 1, of the ICSFT provides that: “Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.”

Article 22 of CERD provides that: “Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.”

In the case concerning Oil Platforms (Iran v. United States of America) (Preliminary Objection, 1996) and in the case concerning Certain Iranian Assets (Iran v. United States of America) (Preliminary Objections, 2019), in order to determine the Court’s jurisdiction ratione materiae under a compromissory clause concerning disputes relating to the interpretation or application of a treaty, it is necessary to ascertain whether the acts of which the applicant complains fall within the provisions of the treaty containing the clause. The ICSFT has to be interpreted according to the rules contained in the Vienna Convention on the Law of Treaties to which both Ukraine and the Russian Federation are parties.

The Court discussed whether the dispute relating to the events in eastern Ukraine is one which it has jurisdiction ratione materiae to entertain under Article 24, paragraph 1, of the ICSFT. To determine its jurisdiction ratione materiae under a compromissory clause concerning disputes relating to the interpretation or application of a treaty, it was necessary to ascertain whether the acts of which the Applicant complains “fall within the provisions” of the treaty containing the clause.

The Court examined whether the procedural preconditions set forth in Article 24, paragraph 1, of the ICSFT have been fulfilled. It observed that the first precondition, namely that the dispute between the Parties could not be settled through negotiation within a reasonable time was satisfied as though diplomatic exchanges relating to the subject-matter of the dispute took place between the Parties, but little progress was made by them during their negotiations. Concerning the second precondition of an arbitration, the Court observed that negotiations concerning the organization of an arbitration were held, but that the Parties were unable to reach an agreement within six months. And hence the second precondition was also met. Since the preconditions were met, it thus had jurisdiction to entertain the claims made pursuant to ICSFT.

Regarding the dispute relating to the events in Crimea the question was whether ICJ had jurisdiction ratione materiae to entertain under Article 22 of CERD. Crimean Tatars and ethnic Ukrainians in Crimea constituted ethnic groups protected under CERD. The Court observed that the restrictions allegedly imposed on Crimean Tatars and ethnic Ukrainians in Crimea were capable of having an adverse effect on the enjoyment of certain rights protected under CERD and thus concluded that the claims of Ukraine fell within the provisions of CERD.

The Court further observed that the negotiations between the Parties, which related to the subject-matter of the dispute before it, lasted for approximately two years and included both diplomatic correspondence and face-to-face meetings, which indicated that a genuine attempt at negotiation was made by Ukraine. The Court thus concluded that the procedural preconditions set out in Article 22 of CERD were also satisfied. As a result, it has jurisdiction to consider the claims made under CERD. Thus, Ukraine has now got a favourable ruling from the UN Court and hence the claims made by it against Russia can now proceed before the court.