UN Court: We Have Jurisdiction to Hear Ukraine’s Claims against Russia

MG Law Office, through the contribution of partners Archil Giorgadze and Nicola Mariani, joined by senior associates Ana Kochiashvili and Tamar Jikia and associates Mariam Kalandadze and Vakhtang Giorgadze and paralegal Lasha Machavariani is partnering with GEORGIA TODAY on a regular section of the paper which will provide updated information regarding significant legal changes and developments in Georgia. In particular, we will highlight significant issues which may impact businesses operating in Georgia.

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On 8 November 2019, the United Nation’s International Court of Justice (ICJ) ruled that it has jurisdiction to review Ukraine’s claims against the Russian Federation. The ruling of the court relates to the claims of Ukraine submitted to the ICJ on 16 January 2017 in relation to the alleged violation of international law and specifically, the International Convention for the Suppression of the Financing of Terrorism (Convention on Terrorism) and the International Convention on the Elimination of All Forms of Racial Discrimination (Convention on Discrimination).

Ukraine alleges by its claim that the Russian Federation breached the Convention on Terrorism by supplying funds, weapons and training to illegal groups engaged in the terrorism activity. Additionally, Ukraine argues that the discrimination and mistreatment in Crimea violated the Convention on Discrimination. In its response, Russia raised objections regarding jurisdiction of ICJ and argued in favor of dismissal of the case from ICJ’s docket. The ICJ judges ruled against Russian position and admitted the claim of Ukraine.

This judgement is significant in terms of Georgia v. Russian Federation dispute which was dismissed by ICJ on 1 April 2011 due to the lack of jurisdiction under the Convention on Discrimination.

FACTUAL BACKGROUND

The claim of Ukraine concerns the continued actions of the Russian Federation from 2014 and consists of two principle episodes: (i) alleged support to terrorist groups in Eastern Ukraine constituting violation of the Convention on Terrorism; and (ii) racial discrimination in Crimea constituting the breach of the Convention on Discrimination. With respect to the Convention on Terrorism, Ukraine contends that the Russian Federation failed to prevent the financing of terrorism and committed acts of terrorism via its proxies. Ukraine’s assertions include well-known tragic accidents, such as the shoot-down of Malaysian Airlines Flight MH17 and bombing of civilians in Kharkov. In connection to the Convention on Discrimination, Ukraine refers to the ongoing oppression and mistreatment of Crimean Tatars and ethnic Ukrainians on the peninsula.

Ukraine filed its claim to the ICJ on 16 January 2017. Russia did not respond Ukraine’s claims and objected to ICJ’s jurisdiction to hear the case on 12 September 2018. These objections maintained that Ukraine’s claims were outside the scope of both conventions and alternatively, Ukraine failed to comply with the procedural preconditions. Specifically, Russia claimed that Ukraine failed to exhaust other potential remedies, such as negotiation or arbitration.

ICJ RULING ON JURISDICTION

ICJ established that Ukraine’s claims fall under the scope of the conventions with respect to the events occurring in eastern Ukraine and Crimea since 2014. With respect to the Convention on Terrorism, ICJ ruled 13 to 3 against Russia and 15 to 1 with regard to the Convention on Discrimination.

ICJ reviewed Russia’s contention that the acts on which Ukraine basis its claims do not fall under the Convention on Terrorist or the Convention on Genocide. The judgment notes with respect to the Convention on Terrorism that it is not necessary for the actions of individuals to constitute the actions of state. The court explained that the Convention on Terrorism obliges states to take appropriate measures and co-operate in the prevention and suppression of terrorism financing committed by any person. In case of breach, the potential liability for breach of international obligation arises. As regards the Convention on Discrimination, the court ruled that restrictions allegedly imposed by the Russian Federation on Crimean Tatars and ethnic Ukranians in Crimea, potentially violate the rules enshrined in the Convention on Genocide.

ICJ further reviewed whether Ukraine had exhausted the obligation to negotiate the dispute before resorting to other remedies. Ukraine argued that it has attempted to settle these disputes amicably, however in numerous instances Russia appeared to be either unresponsive or unwilling to negotiate. Despite the lack of success of the measures implemented by Ukraine, ICJ found that genuine attempt to negotiate the dispute is sufficient to deem the procedural preconditions met. ICJ explained that if negotiations reach a deadlock it is unreasonable to expect exploration of other means by the parties. Therefore, it was determined that ICJ could not upheld Russia’s objections.

IMPACT OF THE RULING ON GEORGIA

The assessment made by ICJ with respect to the Genocide Convention may substantially influence the outcome of Georgia’s claims against Russia. On 12 August 2008 Georgia instituted proceedings before ICJ under the Convention on Discrimination. Georgia contended that Russia was engaged in continued racial discrimination and sponsorship and support of such acts against ethnic Georgians in the period from 1990 to August 2008. Russia objected to the jurisdiction of ICJ to rule on the matter as it deemed that Georgia failed to fulfil the requirement of negotiations. On 1 April 2011, ICJ upheld the objections of Russia, stating that parties failed to negotiate on the subject matter of the dispute, therefore established that it lacked jurisdiction to hear the case.

Eight years after the ruling of ICJ on Georgia v. Russian Federation, the ICJ ruled in favour of Ukraine. The latest judgement can be construed as providing more flexible and attainable standard and may serve as a precedent for Georgia in case it decides to pursue its claims against Russia.

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Note: this article does not constitute legal advice. You are responsible for consulting with your own professional legal advisors concerning specific circumstances for your business.

MG Law is the first full-service law firm in Georgia to be founded by international partners. The firm advises a diverse group of Georgian and foreign companies, financial institutions, investment funds, governments and public enterprises.

Among many other areas, the firm primarily focuses on the following sectors: Banking & Finance, Capital Markets, Arbitration & Litigation, Labor & Employment, Infrastructure and Project Finance, Energy Law, Real Estate, Tax and Customs, Investment Law, Corporate Law, and Cryptocurrency & Blockchain.

For more information, please visit www.mglaw.ge or contact Archil Giorgadze at archil.giorgadze@mglaw.ge and Nicola Mariani at Nicola.mariani@mglaw.ge