CASE COMMENTARY:UKRAINE V. RUSSIAN FEDERATION

Updated: Oct 7

Authored By:

Anushita Dubey (Research Intern)


The International Court of Justice:


The International Court of Justice is one of the significant principal judicial organizations of the United Nations. This organization helps nations to resolve the legal disputes occurring between them and also try to give opinions as an advisor in matters related to legality, which are referred by the United Nations and its subordinating agencies. The Court is based in the Hague, Netherlands, consisting of fifteen judges.


Points to remember:


The International Court of Justice is not the first International Court in which Ukraine is trying to get justice from Russia. Rather we can say that it is the most recent and significant one. There are currently Five inter-state cases in the European Court of Human Rights under the name Ukraine vs Russia. In February 2014, the first case was filed. This was filed when “Little Green Men '' was for the very first time appeared in Crimea. Accordingly, the other cases were filed. Also, there is an International Criminal Court in which Ukraine had submitted to the International Court with the jurisdiction of all events that took place in Ukraine starting from 22nd November 2013, when the Euromaidan protests started in Kyiv. Right now, this is in the phase of the preliminary examination where the International Prosecutor is looking into the details, and deciding whether a criminal case can be opened. There are also numerous international commercial arbitrations where Ukraine fully-owned enterprises, such as 'Naftogaz’ who have legal battles with ‘Gazprom’ in Stockholm, Oschadbank is suing Russia for 1 billion USD for losses of business and assets due to the annexation of Crimea. Recently PrivatBank has a similar case against Russia not only here in the Hague but as well in Stockholm. Thus, it can be visibly noticed that Ukraine is fighting the said legal battle against Russia on all possible fronts. One other case that has come to mind is the World Trade Organization in February Ukraine initiated proceedings with a trade dispute in the WTO. So, as you can see the numerous legal and other instances are trying to be resolved between Ukraine and Russia, (2017).


Introduction:


Ukraine put forth the argument against Russian authorities who have assumed powers in Crimea and started discriminating against Crimean Tatars and ethnic Ukrainians there. Ukraine has instituted a very conflicting lawsuit against Russia. Ukraine, on 16th January 2017, filed a lawsuit with the International Court of Justice requesting them to initiate with the court proceedings against Russia. The allegations filed against Russia were of violating the convention on suppression of financing terrorism and the international convention on the elimination of all forms of racial discrimination. Further, Ukraine is not only requesting to initiate the court proceedings but also wants the United Nations system to certify Russia as the violating party in terms of Human rights of the Crimean Tatars in Crimea due to financing terrorists in Eastern Ukraine. While filing the lawsuit claim, Ukraine also requested the International Court of Justice to order some preliminary measures. Ukraine, in specific terms, is claiming that Russia is providing the financing, weaponry, ammunition, and training to certain groups in eastern Ukraine which commits terrorist acts and their terrorist activities, such as ‘DNR’, ‘LNR’ and the Kharkiv rebels along with other groups,(2017).

Despite the reasonable grounds and the pieces of evidence, Russia denied the allegations made against them and also claimed that they are not involved in any conflicts in the parts of eastern Ukraine and no rights are violated in this region.

Overview:


The dispute between Ukraine v Russia has its limitations in Ukraine’s claims under the Convention on the elimination of all forms of racial discrimination in response to the circumstances prevailing in Crimea. It also claims under the International Convention on Suppression of Financing Terrorism against the issue of armed conflict taking place in eastern Ukraine. Some issues regarding the illegal occupational activities in Crimea were also brought up along with an increase in Russia’s Military Involvement in the dispute matters of Eastern Ukraine. The hearing on the request of Ukraine for providing institutional measures was started on 06th March 2017 and was carried on for the next 4 days. Ukraine on the first day presented their arguments followed by arguments from Russia on the next day. Accordingly, for the remaining two days the parties responded to the arguments made and claims presented against each other.

In September 2015, Ukraine also lodged a Declaration under Article 12(3) of the Rome Statute of the International Criminal Court recognizing its jurisdiction concerning the acts committed on its territory since 20 February 2014. Indeed, acceptance of the jurisdiction of the ICC by Ukraine may not necessarily lead to the prosecution of Russian citizens fighting in the Eastern Regions. It is, nonetheless, another avenue used by Ukraine to put the conflict between the two States before international judges,(Nuridzhanian, 2016).There are many International cases against Russia under International Human Rights and Foreign Investment Law too.

The Court observed that the present case has been brought before the court in the context of a particular conflict taking place in larger parts of eastern Ukraine and its destruction. On 17 July 2014, Malaysia Airlines Flight MH17, while it was flying over Ukraine's territory en-route between Amsterdam and Kuala Lumpur have claimed a significant number of lives. Thus, the case presently before the court is having a limited scope. Under all the events taken place in the part of its eastern territory, Ukraine has brought these proceedings that to only under the International Convention on Suppression of Financing Terrorism. This claim is concerning the events that took place in Crimea. Ukraine's claim is based solely upon CERD and the Court is not called upon, as Ukraine expressly recognized, to rule upon any issue other than allegations of racial discrimination made by the latter, (2017).


The International Court, by an Order, passed dated 19th April 2017, against Ukraine’s claim. the following provisional measures- (1) Concerning the situation in Crimea, the Russian Federation must, by its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (a) Refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis; (b) Ensure the availability of education in the Ukrainian language; (2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve. Finally, the Court recalls that, on 12 September 2018, the Russian Federation raised preliminary objections to the jurisdiction of the Court and the admissibility of the Application,(2019).


Followed by the above claims made by Ukraine and court order, Russian Federation on 12 September 2018, raised preliminary objections related to the jurisdiction of the Court and the admissibility of the Application. In addition to arguing that the International Court of Justice does not have jurisdiction, Russia also claimed that Ukraine had not exhausted other potential remedies to the disputes, including negotiation or submitting them to arbitration. The court, affiliated with the United Nations, can direct defending nations to pay damages or reparations or order other sorts of remedies. Countries are bound by their decisions, but they can be overturned by the U.N. Security Council — of which Russia is a permanent member, (Englund, 2019).

Way forward:


By an Order dated 13 July 2020, the International Court of Justice extended the time limit for filing of the counter Memorial of the Russian Federation from 8 December 2020 to 8 April 2020 for the case of Ukraine vs Russian Federation due to COVID-19 restrictions.


Image Source:

https://in.images.search.yahoo.com/search/images;RussiaUkraine.jpg&action=click


Legit Originals, Volume 1, Issue 1 (September 2020)

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