Ukraine has suffered another blow in the web of legal cases in which it is now involved with Russia.
Following the decision of the High Court in London to grant Russia summary Judgment in the case Russia is bringing against Ukraine for repayment of the $3 billion loan Ukraine owes Russia, the International Court of Justice in The Hague has today declined to grant even on a provisional basis the main part of the relief Ukraine was seeking in the case it has brought against Russia.
As I have discussed previously, Ukraine’s case in the International Court of Justice was almost certainly brought in order to try to offset the financial effect of the Judgment of the High Court in London. However the case Ukraine brought to the International Court of Justice did not make any claims against Russia based based what have been the most contentious issues between Ukraine and Russia in recent years. The International Court of Justice noted this fact (rather sourly) in the short Judgment it handed down today
The Court is fully aware of the context in which the present case has been brought before it, in particular the fighting taking place in large parts of eastern Ukraine and the destruction, on 17 July 2014, of Malaysia Airlines Flight MH17 while it was flying over Ukrainian territory en route between Amsterdam and Kuala Lumpur, which have claimed a large number of lives. Nevertheless, the case before the Court is limited in scope. In respect of the events in the eastern part of its territory, Ukraine has brought proceedings only under the ICSFT. With regard to the events 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.
As I have explained previously, the reason Ukraine did not bring any claim to the International Court of Justice in relation to Crimea’s secession and subsequent re-unification with Russia is because it knows it would almost certainly lose, as the International Court of Justice has said previously in its Advisory Opinion on Kosovo that such a unilateral act of secession is not contrary to international law.
As for the other major issue between Ukraine and Russia – the conflict in the Donbass – Ukraine will be very unhappy to read this passage in the Judgment the International Court of Justice handed down today
Moreover, the Court reminds the Parties that the Security Council, in its resolution 2202 (2015), endorsed the “Package of Measures for the Implementation of the Minsk Agreements”, adopted and signed in Minsk on 12 February 2015. The Court expects the Parties, through individual and joint efforts, to work for the full implementation of this “Package of Measures” in order to achieve a peaceful settlement of the conflict in the eastern regions of Ukraine.
It is a widely overlooked fact that following the agreement of the Minsk Agreement in February 2015, Russia presented a Resolution to the UN Security Council, which the UN Security Council adopted unanimously, which required implementation of the Minsk Agreement as a matter of international law. Ukraine has not abided by the Minsk Agreement despite this, and in its Judgment today the International Court of Justice is clearly saying that before it brings any claim concerning the Donbass or eastern Ukraine it must do so.
The key part of the Judgment is however this passage in which the International Court of Justice rejected Ukraine’s claim for preliminary relief on the grounds that Russia is colluding in acts of terrorism by the people Ukraine calls “the separatists” in eastern Ukraine. This is what the Judgment says
The Court observes that the acts to which Ukraine refers have given rise to the death and injury of a large number of civilians. However, in order to determine whether the rights for which Ukraine seeks protection are at least plausible, it is necessary to ascertain whether there are sufficient reasons for considering that the elements set out in Article 2, such as intention and knowledge, as well as the element of purpose, are present. The Court is of the view that, at this stage of the proceedings, Ukraine has not put before it evidence which affords a sufficient basis to find it plausible that these elements are present. Therefore, it concludes that the conditions required for the indication of provisional measures in respect of the rights alleged by Ukraine on the basis of the ICSFT are not met.
The only thing the International Court of Justice was prepared to do was instruct Russia “to refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions” – including via the pro-Ukrainian Meijlis – and to teach the Ukrainian language to those who wish to learn it. The Russians will say that they are already doing both, the International Court of Justice has imposed no fine on Russia, and the Russians will simply shrug their shoulders and carry on as they are doing now.
I should say that the decision of the International Court of Justice to make these orders reflects the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, and the findings of various bodies of the UN Secretariat and of the OSCE, as its Judgment makes clear
Based on the information before it at this juncture, the Court is of the opinion that Crimean Tatars and ethnic Ukrainians in Crimea appear to remain vulnerable. In this regard, the Court takes note of recent reports by the Office of the United Nations High Commissioner for Human Rights concerning the human rights situation in Ukraine, and of the report of the OSCE Human Rights Assessment Mission on Crimea. The Court considers that these reports show, prima facie, that there have been limitations on the ability of the Crimean Tatars to choose their representative institutions, and restrictions in terms of the availability of Ukrainian-language education in Crimean schools. The Court concludes from this that there is an imminent risk that the acts, as set out above, could lead to irreparable prejudice to the rights invoked by Ukraine.
Russia has repeatedly complained about the bias of these bodies and about their findings. However the International Court of Justice is in no position to go behind them and in light of them it could not make orders different from the ones it has made.
In conclusion, if Ukraine was hoping to get preliminary relief from the International Court of Justice that would offset the effect of the Judgment of the High Court in London, then it has failed.
On 4th April 2017 the IMF disbursed $1 billion despite the High Court Judgment. The Judgment is not however yet in force because of the stay upon it granted by the High Court pending Ukraine’s appeal. If Ukraine loses the appeal – as is overwhelmingly likely – and the stay is lifted, Ukraine will be formally in default unless it pay its debt to Russia. When that happens, with the International Court of Justice refusing to provide Ukraine with relief, the IMF will have to decide whether it can continue to support Ukraine contrary to its own rules, and Russia will have to decide what it will do if the IMF does.