Provisional Measures in Ukraine v. Russia (Allegations of Genocide) – EJIL: Discuss! – Cyber Tech

1. Drawback

The journey of the Ukraine v. Russia (Allegations of Genocide) dispute has generated a lot controversy as to perceived and actual shifts within the ICJ’s strategy. Let’s dissect this additional. In its Provisional Measures (PM) Order of 16 March 2022, the ICJ, based mostly on what has been characterised its ‘manipulative reasoning’, went as far as to order Russia to ‘instantly droop [its] navy operations’, by accepting the ‘surprisingly artistic argument’ of Ukraine and its ‘artistic use of seising a Courtroom’. In distinction, within the Preliminary Objections (PO) Judgment of two February 2024, the ICJ ‘killed Ukraine’s artistic argument’. Whereas the ICJ confirmed its jurisdiction on the primary facet of the dispute (i.e., whether or not Ukraine dedicated genocide), it denied its ratione materiae jurisdiction on the second facet of the dispute (i.e., whether or not using pressure by Russia has any authorized foundation below the Genocide Conference).

Contemplating the totally different circumstances relevant to those two procedures, and the intense urgency in an ongoing armed battle, we should always neither be shocked nor dissatisfied by such disparity in enthusiasm on the a part of the ICJ. That being stated, it’s removed from clear whether or not the PM Order has survived the PO Judgment. Lately, Alexianu argued that the previous, implicitly revoked by the latter, had been in pressure solely between 2022 and 2024. On this publish I counter-argue that, actually, the PM Order stays in pressure.

2. Unprecedented case

A PM Order usually expires when the ICJ renders its last choice or judgment, whether or not on preliminary issues or the deserves of the dispute in query (cf. Artwork 41(2) of the ICJ Statute and Artwork 76(1) of the ICJ Guidelines). Primarily based on this precept, the ICJ expressly terminated the PM Orders in Anglo-Iranian (Judgment 1952, 114), Nuclear Assessments (Judgment 1974 [61]), Nuclear Assessments (Judgment 1974 [64]), and Georgia v. Russia (Judgment 2011 [186]). However, in Qatar v. UAE, whereas the ICJ denied its jurisdiction, it remained silent on the validity of the provisional measures (Judgment 2021 [115]). Nonetheless, it’s cheap to imagine that the PO Judgment, by completely denying its jurisdiction, implicitly revoked the sooner PM Order.

In Allegations of Genocide, the ICJ indicated provisional measures ‘pending its last choice’ (Order 2022 [78]), and ordered Russia to droop navy operations ‘pending [the ICJ’s] last choice’ (ibid. [81]). Because the ICJ in its PO Judgment has confirmed sure points of its jurisdiction whereas denying others, the query stays as as to if that is its ‘last choice or judgment’ inside the above context.

At first look, it isn’t unreasonable to take the PM Order as implicitly revoked by the PO Judgment for the next causes: (1) the three provisional measures, all regarding using pressure by Russia, fall inside the scope of the second facet of the dispute (i.e., using pressure); (2) insofar because the ICJ denied its jurisdiction on the second facet, the provisional measures are bereft of their jurisdictional foundation (and/or the premise of the rights to be protected on the deserves part); and (3) consequently, they have been implicitly revoked by the PO Judgment. In opposition to this interpretation, I put ahead the choice interpretation that the provisional measures stay in pressure on account of being impartial of the substantive legislation, particularly, the Genocide Conference.

3. Unbiased obligations below provisional measures

Though the so-called ‘autonomy’ of provisional measures is controversial (e.g., Cançado Trindade, Reiter, Li), it suffices for the needs of this dialogue to verify that the content material of obligations below provisional measures differs from that below the substantive legislation, within the following 4 patterns.

Within the first sample, two separate acts breach two separate obligations, respectively. In LaGrand, the duty below the primary provisional measure (i.e., the US ‘ought to take all measures at its disposal to make sure that Walter LaGrand isn’t executed pending the ultimate choice in these proceedings’) was totally different to the duty, below Article 36(1) of the Vienna Conference on Consular Relations, to tell the consular publish of the sending State of an arrest of a nationwide of that State. Because of this, understandably, the ICJ concluded that the US breached two separate obligations (Judgment 2001 [115], [128]).

Within the second sample, the identical conduct could breach two overlapping obligations. In Congo v. Uganda, the ICJ concluded that Uganda, by its navy forces within the territory of the Democratic Republic of Congo, breached worldwide human rights legislation and worldwide humanitarian legislation  (Judgment 2005 [220]) and, by the identical conduct, additionally breached obligations below the provisional measures to respect these legal guidelines (ibid. [264]). In Border Space/San Juan River, as properly, the ICJ concluded that its discovering that Nicaragua acted in breach of its obligations below the PM Order is ‘impartial of the conclusion […] that the identical conduct additionally constitutes a violation of the territorial sovereignty of Costa Rica’ (Judgment 2015 [129]). These findings imply that the identical conduct could breach two obligations that, whereas considerably similar, exist independently of one another.

Within the third sample, a single act could breach obligations below provisional measures, whereas not breaching obligations below substantive legislation. In ICSFT/CERD, the ICJ concluded that, by sustaining its ban on the Mejlis, Russia violated the PM Order, even when that ban did not violate Russia’s obligations below CERD (Judgment 2024 [392]). Understandably, this discovering was criticised by Judges as ‘shocking’ (Tomka [4]) and ‘inexplicable’ (Tuzmukhamedov [156]), on the bottom that, if there isn’t a breach of a proper/obligation below substantive legislation, there could be no breach of provisional measures aimed toward preserving that proper (Tomka [5]; Brant [4]; and Tuzmukhamedov [158]). In opposition to this place that strictly requires a connection between provisional measures and substantive rights/obligations, the ICJ took a distinct stance: ‘obligations arising from provisional measures bind the events independently of the factual or authorized state of affairs which the provisional measure in query goals to protect’ (Judgment 2024 [391]). Extra exactly, the duty below provisional measures (i.e., that Russia should ‘[r]efrain from sustaining or imposing limitations on the power of the Crimean Tatar group to preserve its consultant establishments, together with the Mejlis’) was not topic to the requirement below Article 1(1) of CERD. However, obligations below CERD are conditioned by the requirement in regards to the goal of racial discrimination below Article 1(1). Because of this, one act breaches one obligation, however not one other.

The fourth sample issues non-aggravation measures that order events to chorus from aggravating or extending the dispute. It’s true that non-aggravation measures are in ‘addition’ to (Qatar v. UAE, Order 2019 [28]) and ‘complementing’ (Costa Rica v. Nicaragua, Order 2011 [62]) typical measures aimed toward preserving the rights of the events and, consequently, that the previous can’t be indicated independently of the latter. Substantively, nevertheless, non-aggravation measures could be impartial of substantive legislation as a result of, not like typical measures, their scope goes past the preservation of rights per se (e.g., ICSFT/CERD, Judgment 2024 [396]-[398]). It needs to be concluded that, if the ICJ discovered a breach of typical provisional measures, a breach of a non-aggravation measure may additionally be at play, even within the absence of a breach of substantive legislation.

In accordance with the related jurisprudence, obligations below provisional measures could be totally different to, and thus impartial of, these below substantive legislation. As a consequence, an act of a State, even when lawful below substantive legislation, nonetheless could breach obligations below provisional measures.

4. Authorized grounds for impartial obligations

A number of authorized grounds could justify the independence of obligations below provisional measures from these of substantive legislation and/or jurisdictional foundation.

First, obligations below provisional measures stem from Article 41 of the ICJ Statute, independently of substantive legislation (LaGrand, Judgment 2001 [109]). In different phrases, the legally binding pressure of provisional measures doesn’t come up, for instance, from the Genocide Conference, however instantly from the ICJ Statute.

Second, the scope of obligations below provisional measures, comparable to believable rights, is totally different to, and broader than, that comparable to definitive rights below substantive legislation. Whereas the previous isn’t strictly topic to substantive legislation circumstances, the latter is topic to such circumstances, as was the case in ICSFT/CERD.

Third, by Article 75(2) of the Guidelines of Courtroom, the ICJ confers upon itself the facility to point measures which might be, in complete or partly, aside from these requested. This energy permits the Courtroom to develop the scope of requests and, consequently, to point provisional measures impartial of jurisdictional foundation and substantive rights/obligations. As Article 75(2) permits the Courtroom to depart from the events’ petita, there could be no concern about an extra of energy (extremely petita).

5. Provisional measures in Allegations of Genocide

Allegations of Genocide resembles the third sample, within the sense that obligations below the provisional measures are impartial of these below substantive legislation (i.e., the Genocide Conference). The ICJ is ready to discover a breach of the previous whereas denying a breach of the latter, on the next grounds.

First, within the PO Judgment, the ICJ concluded that it lacked jurisdiction ratione materiae on the second facet of the dispute (i.e., using pressure) (Judgment 2024 [147]). Nevertheless, in substance, this have to be understood as denying a breach of obligations by Russia, as a result of: (1) the ICJ confirmed the existence of a dispute on two points (ibid. [51]). Which means its jurisdiction, admitted prima facie on the PM part, based mostly on a combined dispute (Order 2022 [45]), was definitively confirmed by the ICJ; (2) when denying its jurisdiction ratione materiae, the ICJ examined intimately the grounds for justifying the believable proper of Ukraine, raised on the PM part (Judgment 2024 [141]-[147]); and (3) the ICJ, in a roundabout way denying its jurisdiction ratione materie, concluded that the ‘acts [of Russia] should not able to constituting violations of the provisions of the Conference’ (ibid. [147]). It’s clear that the PO Judgment rejected the potential of Russia’s breach of obligations below the Genocide Conference.

Second, the duty below the primary provisional measure (i.e., speedy suspension of navy operations) is impartial of substantive legislation (i.e., the Genocide Conference), since, on its face, it doesn’t comprise any necessities of the Genocide Conference. In itself, this obligation falls outdoors the scope of the Genocide Conference. This strategy is probably going to provide rise to questions as to why this measure went past the scope of the Genocide Conference. The reply is straightforward: the ICJ has exercised its energy, below Article 75(2) of the Guidelines of the Courtroom, to point measures which might be, in complete or partly, different than these requested (Order 2022 [79]). Such energy permits the ICJ to point provisional measures which don’t fall inside the provisions of substantive legislation.

For these causes, the obligations below the provisional measures are impartial of the substantive obligations imposed on Russia by the Genocide Conference and, due to this fact, stay in pressure and legally binding on Russia. It follows that according to ICFST/CERD, the ICJ is ready to discover that Russia’s ongoing use of pressure, unabated following the PM Order and till the deserves Judgment, is in breach of the obligations below the primary two provisional measures, regardless of whether or not it breaches obligations to chorus from using pressure below the Genocide Conference (and/or certainly whether or not such obligations actually exist below the Genocide Conference). What’s extra, relying on the circumstances, it’s seemingly that there will even be a breach of the third provisional measure of non-aggravation.