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Ukraine took Russia to World Court: Now what? | Douglas Harrison

Tuesday, March 22, 2022 @ 10:32 AM | By Douglas Harrison

Douglas Harrison %>
Douglas Harrison
On March 16, the World Court, formally the International Court of Justice (ICJ), ordered Russia to suspend its military operations in Ukraine, including operations undertaken by any one either under Russia’s direction or supported by it, until such time as the court can consider an application brought by Ukraine for broader relief.

What does such an order mean, and can it be enforced?

An order obtained from a Canadian court can be enforced using the coercive processes of the state. Assets can be seized by a sheriff and liquidated for cash, which can then be given to the party in whose favour the order was made. Fraudulent conveyances of title can be reversed. Persons who ignore injunctions can be jailed.

But what is the effect of an order from the ICJ, made against a sovereign entity? What does it mean for the Russian Federation? Are its assets at risk of seizure or are its officials subject to imprisonment?

The ICJ was established as a principal organ of the United Nations when the UN was founded in 1945. It is the successor to the Permanent Court of International Justice, which had been created alongside the League of Nations in the wake of the First World War.

Based in The Hague, Netherlands, the ICJ is available for UN member states to seek peaceful resolution of disputes that arise between them. It has no jurisdiction to try individuals accused of war crimes as it is distinct from the International Criminal Court, and it does not hear appeals from either national courts or any international tribunal. As of September 2021, 181 cases have been filed with the ICJ.

Judges, called members, are elected to the ICJ by the UN General Assembly. There are currently 15 members, headed by a president (currently Joan Donoghue of the U.S.). The only Canadian to have been elected to the court was John Erskine Read (1946-58), although a few others such as Louise Arbour and Yves Fortier have sat as ad hoc members.

Ukraine commenced its ICJ proceeding against Russia on Feb. 26. In its application, it accuses Russia of making false claims of genocide in the Luhansk and Donetsk regions of Ukraine as a pretext for invading Ukraine, which Ukraine says is a misuse the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Apart from ending Russian miliary operations, Ukraine is seeking both assurances that Russia will not take unlawful measures against Ukraine based on false claims of genocide, and also reparations.

But, in addition, Ukraine also sought interim, provisional measures, stopping military operations pending the determination of the application on its merits.

On March 7, the court heard Ukraine’s request for provisional measures. Ukraine was represented pro bono by U.S. law firm Covington & Burling LLP, the principal counsel being partners Marney Cheek, Jonathan Gimblett and David Zionts, of the firm’s Washington, D.C., office.

Russia did not attend the hearing. However, it sent a letter to the court on March 5, asserting that the court lacked jurisdiction because, in its view, the dispute was beyond the scope of the Genocide Convention.

In its March 16 decision, the court found that (a) it had jurisdiction under the Genocide Convention to entertain the case; (b) Ukraine had a plausible right not to be subject to military operations by Russia; and (c) there was a link between that plausible right and the requested provisional measures. The court said, “it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide.”

Going on to consider whether provisional measures would be ordered, the court found there would be irreparable harm by the continuation of Russia’s military operations and that the matter needed to be addressed urgently. It rejected Russia’s stated position that the urgency needed before a provisional measure could be ordered had to pertain to the protection of rights under the Convention as opposed to the situation generally.

The court ordered, by a vote of 13-2, that Russia suspend its military operations in Ukraine pending the final decision in the case, an order that the court declared has “binding effect” and creates “international legal obligations” on Russia. The two votes against were made by the Russian and Chinese members of the court. In their view, Ukraine’s request did not raise a genuine dispute under the Genocide Convention.

Russia has since said it does not intend to abide by the order. The day after the ruling, Radio Free Europe quoted Kremlin spokesman Dmitry Peskov as saying that Russia “cannot take this decision into account.”

Now what?

There is no international sheriff who can seize the assets of a sovereign state, or arrest government officials for failing to abide by an order of the ICJ. There is no enforcement mechanism for ICJ orders.

Nations are meant to respect international law and to abide by the orders of the ICJ as a part of their commitments made to each other through treaties and other international instruments to which they have acceded, including the UN Charter, by which its members agree to settle all international disputes by peaceful means.

Many orders of the ICJ are followed without incident. Canada and the United States, for example, submitted their dispute over the delimitation of the boundary in the Gulf of Maine to the ICJ in 1981. Following a hearing at The Hague, in 1984 the court drew a boundary line that the two countries have since respected. Many other international boundary disputes have been settled by the court in a similar manner.

Failure to abide by an order leaves a state open to seeing its reputation harmed in the eyes of the international community, or possibly face sanctions. In the wake of the court’s order against Russia, International law professor Marko Milanovic of the University of Nottingham wrote, in the European Journal of International Law blog, “Russia’s failure to comply with the order will have the same effect as its non-appearance — a showing of disrespect for international law and institutions, causing it reputational harm while presenting Ukraine as a state using legal methods of peaceful dispute settlement.” In terms of reputational harm, he noted that the Council of Europe expelled Russia the same day the ICJ’s order was made.

There are certainly other examples of countries flouting the court. In 1984, Nicaragua commenced proceedings against the United States for breaching international law by supporting the Contra rebels who were seeking to overthrow the Nicaraguan government and by mining Nicaragua’s harbours. The U.S. said the ICJ lacked jurisdiction over the matter and did not participate in the proceedings.

The court ultimately held, in 1986, that the U.S. had breached not only customary international law but also a 1956 friendship treaty with Nicaragua, and ordered the U.S. to pay reparations. The U.S. blocked enforcement of the order at the UN Security Council and Nicaragua eventually withdrew the complaint from the court. If its actions harmed its reputation, clearly the United States government of the day was prepared to accept that risk.

Douglas Harrison in an independent commercial arbitrator, mediator and lawyer and chair of the Toronto Commercial Arbitration Society.

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