Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

“Ukraine’s position is extremely strong”

On the importance of hearings in the UN International Court of Justice
13 March, 2017 - 18:00
Photo from the Twitter page of the UN International Court of Justice

The UN International Court of Justice held the final hearing on the request for the indication of provisional measures submitted by the Ukrainian government in the case Ukraine vs. Russia. Let us recall that Ukraine appealed to the Court alleging that Russia had violated two conventions: the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination.

In her speech, Deputy Foreign Minister of Ukraine Olena Zerkal noted that Ukraine was urging the court to order provisional measures obliging Russia to refrain from actions resulting in violations of the Conventions. Specifically, the Ukrainian submission cites the need to encourage Russia to stop the flow of weapons and other assistance across its border to groups that have engaged in acts of terrorism against civilians and cease and desist from acts of cultural suppression in the illegally annexed Crimea and some districts of the Luhansk and Donetsk oblasts.

According to Zerkal, obtaining an order on provisional measures would become a crucial victory in Ukraine’s quest to protect its rights and would clearly define the responsibilities of the parties and prevent Russia’s manipulation of evidence.

The Day turned to Senior Research Fellow of the Koretsky Institute of State and Law Mykola SIRYI, asking him to comment on the early hearings in Ukraine’s case in the UN International Court of Justice and the statement of the Russian president’s spokesman that Russia was ready to implement the decision of the court.


“First of all, it is very good that these hearings were held. Although the court decision will just request Russia to act and offer some general guidelines, the hearings were still important because they enabled Ukraine to formulate its legal position and forced Russia to do likewise. This is a very important step towards creating certainty in the conflict that we have on our hands. In other words, it marks a transition from hybridity to certainty.

“When declaring its demands, the Ukrainian side understood the limited potential of provisional measures. Therefore, the demands of Ukraine relate to only two points at this stage. Firstly, we want to secure recognition that Russia is directly involved in the Ukrainian-Russian conflict and is not a third party that helps to resolve this conflict. Secondly, Ukraine asserts that Russia has engaged in active efforts aimed at inciting and deepening the conflict. Accordingly, the provisional measures it requests are aimed at ensuring that the International Court of Justice uses its authority to urge Russia to substantially reduce this activity, and better still, to stop it completely.

“The position of the Russian side is also important, as it is forced to legally formulate its position in these proceedings, which means determining its legal opinion of the events that occurred in Ukraine in 2013-14 and subsequent years. Russia says that there was a coup in Ukraine, and that is its international legal position. However, I must say that no defining feature of the coup was actually present. If one was to characterize the events that took place in Ukraine during the Revolution of Dignity, they do not qualify for a coup. Accordingly, it is good that Russia stated its position, and we can say now that the Kremlin has almost zero evidence to support it.”

In other words, you agree with the opinion of Minister of Foreign Affairs of Ukraine Pavlo Klimkin, who said at a joint press conference with the head of the French diplomacy Jean-Marc Ayrault that Ukraine would be able to prove in the International Court of Justice Russia’s violations of the two international conventions?

“I absolutely agree with that. Ukraine’s position in the UN International Court of Justice is very strong and it is important that in defending this position, we never trade it off for temporary political successes. Therefore, it should be firm, clear, and consistent, as well as never influenced by short-term political factors.”

You probably have heard the Russian side’s statements that it is not a party to the conflict and that Ukraine itself is to blame for the arms appearing in its territory. They say so even though it is abundantly clear to everyone that the government of Ukraine has no way to control precisely this stretch of the border. So, how should the Ukrainian side respond to such “arguments”?

“This court case offers a good comparative example. It is one thing when a state uses its considerable media capabilities and fills global information space with false information and manipulates various news-making events. Russia has shown that its mind manipulation capabilities work not only in Russia itself, but in the wider world as well. We see that its potential includes media capabilities as well as those offered by agents of influence in various milieus abroad, goalpost moving, mixing true and false information, and lots of other capabilities and resources.

“All these factors just do not work in the context of international judicial proceedings. This is because one can make every false statement one wants to in the UN International Court of Justice, but if it is not supported by evidence, and false statements obviously cannot be, it quickly turns into a non-entity, a legal fake. In this respect, Russia’s experience at the International Court of Justice will be extremely difficult. Since it has already created a peculiar information field, it now has to assert and declare at an international court the same positions it has established in the information space, but Russia has no legal arguments to support these positions. Accordingly, it will become more obvious by the day to the international community.”


By the way, Dmitry Peskov, the press secretary of the Russian president, said lately that Russia would recognize the decision of the court. What does this mean?

“This stage allows for such statements. The fact is, the demands listed in the order of the international court will be very general and request-like in nature, in other words, it will urge Russia not to engage in certain actions. And accordingly, the Kremlin will have the option to comment on this decision and possibly welcome it and say: ‘We also firmly ascribe to a non-interference approach, and we have never interfered.’ That is, Russia will still be able to engage in information manipulation, but should the court impose some obligations on Russia, it would mean a lot from an international legal point of view. However, it will not be as significant in the understanding of journalists and the media. Therefore, opportunities to continue manipulations and offer peculiar interpretations of the court order will still be there, and Russia is exploiting that.

“The second point is that Russia understands very well that the road to final judgment will be extremely long. So one can make statements of any kind now, with the understanding that the final judgment will come in five to seven years, and perhaps later still.”

Deputy Foreign Minister Zerkal said in an interview for the Ukrainian media that Russia would become a pariah state if it does not comply with the court decision. Is not this statement much too hasty?

“I am convinced that a decision favoring Ukraine will be made if the International Court of Justice hears obvious, truthful, and well-supported by evidence arguments of the Ukrainian side. This decision will form a clear framework for evaluation of Russia’s future behavior. That is, should Russia continue to move trainloads of arms through the border stretch we do not control, it would be in breach of the court order in every such case. Should Russia’s armed forces, ammunition, equipment, and any military-use goods move in the future through the border stretch we do not control, it will be in breach not only of the general requirements of international law, but of a specific decision of the International Court of Justice as well.”

And what are the prospects of a favorable decision on the claim that Russia has violated the Convention on the Elimination of Racial Discrimination by its actions in Crimea? Russia claims that the situation is ideal there, but Ukraine is to blame for not allowing the OSCE monitors to enter the illegally annexed peninsula.

“I think that the decision of the UN International Court of Justice will be extremely important for the situation in Crimea. Ukraine’s firm, consistent, and well-supported position is based in international legal terms not only on the requirements to honor the sovereignty and territorial integrity of Ukraine, but also on the rights of ethnic groups who have traditionally lived on the Crimean Peninsula. Meanwhile, protecting the rights of ethnic groups does not figure in the Russian side’s actions at all, because the rest of the Crimean population makes only fractions of larger ethnic groups. Accordingly, demands to ensure cultural rights, such as those of the Crimean Tatar people, will feature prominently as Ukraine points to Russia’s actions preventing that people from retaining its own identity and using its tools of public life, including the Mejlis. Once Russia takes any further action aimed at restricting the rights of the Crimean Tatar people, it will automatically find itself in breach not only of the general requirements of international law, but of a specific decision of the UN court as well.”

And yet, when can we expect to see a decision on provisional measures of protection regarding Russia?

“I think that decision will not be taken quickly. I am absolutely sure this decision will not be taken in two months. In my opinion, the court will take as much time as it can for a detailed discussion of all the circumstances presented by the parties. It will not act in a hurry, and looking at it realistically, the court will take three to five months to make this decision.”

Some experts say that Ukraine should have focused its attention on getting the International Court of Justice to recognize the fact of Russian aggression, and only then address other issues. What do you think about this?

“A peculiar feature of bodies with international jurisdiction is that they usually need both sides’ assent before an international litigation can start. Ukraine was absolutely right to use these two conventions’ application as a basis for its claims. This is because that the conventions themselves give the court the required jurisdiction. When the Ukrainian side draws attention to the fact that the Russian side violates these two conventions on Ukrainian territory, the conventions themselves have the in-built litigation mechanism in the form of appealing to the UN International Court of Justice. Accordingly, the Russian side has no legal way to opt out of the case on precisely this occasion. Had Ukraine raised the question of territorial integrity, Russia would have the right to refuse to be a party to such proceedings.”

What, in your opinion, should Ukraine do prior to the start of the case’s consideration on the merits?

“Ukraine has four to five months to formulate and present to the court its principal position. Our side will see what points should be emphasized and what issues will need to be given special attention. In addition, Ukraine will have additional opportunities to clearly formulate its position on other controversial situations, including those related to maritime law and violations of human rights as defined in the Universal Declaration of Human Rights.”

Микола СІРУК, «День»