Further to our original post about Ukraine’s suit against Russia before the International Court of Justice, the ICJ is holding hearings this week on Ukraine’s request for provisional measures—akin to injunctive relief. The hearings are streaming live on the Court’s website. The video of Ukraine’s opening argument is available here, delivered in part by Just Security editor and contributor Harold Hongju Koh (starting at 43:31), joined by lawyers from Covington & Burling LLP. A transcript is here.
Ukraine’s argument focused on its request for provisional measures relating to both the Terrorism Financing Convention and the Convention on the Elimination of Racial Discrimination (CERD). The Ukrainian agent and Deputy Foreign Minister Olena Zerkal noted that the stakes have been raised even in the last few weeks as Russian-backed armed groups escalated their attacks in the Ukrainian city of Avdiivka. Indeed, the Special Monitoring Mission (SMM) of the Organization for Security and Cooperation in Europe (OSCE) is recording the commission of ceasefire violations on a daily basis. (The U.S. statement to OSCE about the Avdiivka attack is here).
Professor Koh, in his remarks, provided an overview of the case and the facts and argument underlying Ukraine’s request for provisional measures:
All we ask is for this Court’s temporary order protecting the innocent people of Ukraine, so that rights international law already protects are not destroyed while this Court deliberates. … [W]hat Ukraine fears is that the past will become prologue. To see why the people of Ukraine urgently need your protection, you must understand what they have endured over the past three years, and the grave breaches of international law that Russia has already inflicted upon them.
Given that Russia is a member of both treaties, Koh argued, Ukraine is only asking for an order demanding that Russia do what it has already committed to do—refrain from terrorist financing and from racial discrimination and cultural erasure:
If Russia is in fact keeping its commitments, how can it object to the Court’s provisional measures order, which will impose no burdens beyond those that Russia has already accepted?
Koh was quite clear that
Ukraine has not come here seeking either relief for Russia’s acts of territorial aggression in violation of the United Nations Charter, or confirmation of Ukraine’s sovereignty over Crimea.
Nonetheless, he argued, the violations at issue in the case stem from this source.
The ICJ’s standard for provisional measures is three-pronged:
- The Court must have prima facie jurisdiction over the claims.
- There must be a link between the rights at issue in the request for provisional measures and the merits.
- There must be “an urgent necessity” to prevent irreparable prejudice to the disputed rights.
The rationale for such measures is to preserve the rights of each party pending a final decision on the merits of the case. In the earlier case of Georgia v. Russia, the Court indicated that provisional measures are appropriate in circumstances that are “unstable and could rapidly change” such as when there are ongoing tensions without “overall settlement [of the] conflict.” In addition, they are appropriate where past violations may recur. As such, Koh argued,
Ukraine’s present situation presents a paradigm case for indicating provisional measures.
We will provide continued coverage of the case as it there are new developments.