Sanchez Borjas, Diego

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The ICJ Order in Ukraine v. RussiaDiego Sanchez Borjas 2022-03-28T08:00:01On March 16th, 2022, the principal judicial organ of the United Nations (UN), theInternational Court of Justice (ICJ), handed over its Order on provisional measuresin the case concerning Allegations of Genocide (Ukraine v. Russian Federation).However, in light of the deplorable, regrettable human losses and millions offorcibly displaced Ukrainians due to the Russian aggression against Ukraine, theeffectiveness of the international rules-based order is under heavy scrutiny. This postintends to answer the following questions: Does the Order have any real or effectivepower vis-à-vis the Russian Federation? To what extent and how can the Order beenforced?What Power Does the Order Have?Article 41(1) ICJ Statute empowers the Court to indicate provisional measuresrequested by any of the parties to a dispute if certain circumstances are met. Incontrast to Article 59 ICJ Statute, which establishes that judgements of the Courtare legally binding to the parties of the dispute, the Statute lacks express referenceto the legal nature of the Order to be adopted. Nonetheless, given the importancefor the parties to preserve the rights they request the Court to adjudge and declare,the ICJ has found that Orders granting provisional measures are legally binding(LaGrand, para. 115).Bearing in mind that the Order is legally binding, the provisional measures indicatedare bestowed with the nature of international obligations (Application of theConvention on the Prevention and Punishment of the Crime of Genocide, para.452). Consequently, any conduct of either party to the dispute before the Court notconsistent with the content of the Order will equate to a breach of an internationalobligation, thus invoking the international responsibility of the party in question. In thepresent dispute, the Court adopted three measures: First, the immediate suspensionof Russian military operations in Ukraine; second, for the Russian Federation toensure “military or armed groups directed or supported by it” and “organizationsand persons which may be subjects to its control and direction” will not continueengaging in the military operations already referred to; and third, for both Ukraineand the Russian Federation to “refrain from any action which might aggravate orextend the dispute”.Whereas all provisional measures relate to the Russian Federation, and the thirdalso to Ukraine, during the assessment of the merits of the case, any of the partiescan bring forward arguments claiming the opposite party did not comply with theaforesaid measures (Certain Activities Carried Out by Nicaragua in the Border Areaand Construction of a Road in Costa Rica, para. 126). Nonetheless, in case anyof the parties fail to submit specific evidence in their submissions about the non-compliance, the Court may still declare international responsibility if the breachesof international obligations found fall within the scope of the measures indicated- 1 -(Armed Activities on the Territory of the Congo, para. 264). As a result, if the otherparty to the dispute fails to comply with the provisional measures, the obligation torepair arises (Application of the Convention on the Prevention and Punishment of theCrime of Genocide, para. 469) and the Court is empowered to rule on the manner ofreparations owed by the breaching party.The Enforceability of the OrderHow can the obligations contained in the Order be enforced? Under Article 41(2)ICJ Statute, apart from the parties to the dispute, the Security Council (SC) is givennotice of the measures indicated. Likewise, under Article 94(1) UN Charter, allparties to a dispute must comply with the decisions of the ICJ. If one party fails todo so, Article 94(2) UN Charter allows the other party to request that the SC makesrecommendations or decides on measures to give effect to the judgement.Nevertheless, it is unclear what the material content of Article 94(2) UN Charter isand whether the provision also applies to orders granting provisional measures. Onboth issues, the Court has adopted a restrictive interpretation: On the first issue, ifthe submissions of the other party to the SC transcend or differ from the terms ofthe judgement of the Court intended to be enforced, the claim of enforcement willnot be entertained (Alleged Violations of Sovereign Rights and Maritime Spacesin the Caribbean Sea, para. 109). Additionally, recourse to enforcement underArticle 94 UN Charter requires the judgement to contain a “judicial condemnation”which excludes any judgement including only findings on breaches of points oflaw (Northern Cameroons, p. 34). On the second issue, the Court concluded,by distinguishing between the ability to enforce and the ability to generate legalobligations (LaGrand, paras. 107-108), that an order granting provisional measurescannot be enforced through the SC as Article 94(2) UN Charter is reserved to“judgements” only (Continental Shelf, para. 29).Chapter VI UN Charter: “Soft” Enforcement?Notwithstanding the previous paragraphs, there may still exist a possibility forUkraine to have recourse to the UN Charter to enforce the content of the Orderunder Chapter VI. Pursuant to Article 27(3) UN Charter, any party to a dispute shallabstain from SC votes on any decision taken under Chapter VI of the Charter. Atleast on paper, the Russian Federation would thus be unable to vote against any SCdecision taken under Chapter VI regarding the Order.Regardless of the alternatives Ukraine opts to pursue under Chapter VI of theCharter, the previous recourse to the ICJ in no way precludes to seek the actionof the SC. Only when the SC acts based on Article 39 UN Charter, Ukraine wouldbe precluded to seek another of the alternatives for the peaceful settlement of thedispute established in Article 33 UN Charter (Military and Paramilitary Activitiesin and against Nicaragua, para. 90). In that sense, the procedural venues underChapter VI remain available for Ukraine until the SC invokes the mechanisms underChapter VII of the Charter.- 2 -As to the concrete options, since the Order falls under the term “judicial settlement”provided by Article 33(1) UN Charter (Arbitral Award of 3 October 1899, para.106), the SC may “recommend appropriate procedures or methods of adjustment”under Article 36(1) UN Charter. When making such recommendations, the SC isnot precluded from acting even though the ICJ has already granted provisionalmeasures (United States Diplomatic and Consular Staff in Tehran, para. 40). Bearingin mind the Court has declared that the word “should” used in Article 36(3) UNCharter does not entail compulsory jurisdiction of the Court to entertain claimsconcerning a dispute (Aerial Incident of 10 August 1999, para. 48), Article 36(2)UN Charter cannot be construed as a duty of the SC to consider the provisionalmeasures indicated by the ICJ in this case. In any event, the use of the word“recommends” under Article 36(1) UN Charter does not deprive the SC resolutionof its legally binding nature under Article 25 UN Charter (Legal Consequences forStates, para. 115), thereby constituting a directly enforceable instrument concerningthe dispute.However, even though Article 36 UN Charter might provide a recourse for theindirect enforcement of the Order, the lack of a duty of the SC to consider theOrder in the resolution to be adopted, and the unlikeliness of the abstention of theRussian Federation when voting, could not make this aim achievable in practice.Another mechanism Ukraine might have recourse to is Article 37 UN Charter. Thisprovision requires that parties to the dispute must have failed “to settle it by themeans indicated” in Article 33(1) UN Charter before being obliged to refer it tothe SC. According to the preparatory work of Article 37 UN Charter, if one of theparties fails to comply with this duty, the other party can refer the dispute to the SCunilaterally (UNCIO, Vol. XII, p. 47, para. 1(a)). Hence, both Ukraine and the RussianFederation are bound by the UN Charter to refer the dispute to the SC in case the“judicial settlement”, which includes the provisional measures granted by the ICJ,fails to settle the dispute between them.Whereas a dispute is understood to be settled judicially when the Court hasreached a judgement on the merits (Application for Revision of the Judgment of11 September 1992 in the Case concerning the Land, Island and Maritime FrontierDispute, para. 15), a finding by the Court that it lacks jurisdiction would equate to asituation where the dispute has not been settled (Aerial Incident of 10 August 1999,para. 53). Certainly, in that case, given that no obligation derives from the Charterto exhaust all the mechanisms under Article 33(1) UN Charter, the parties will bebound to refer the dispute to the SC. Thus, as the “judicial settlement” way wasopened before the ICJ, Ukraine’s recourse to Article 37 UN Charter would require adecision by the Court that equates to a non-settlement of the dispute before it canhave recourse to the SC.As soon as the dispute has been referred to the SC, it has two alternatives underArticle 37(2) UN Charter if it “deems that the continuance of the dispute is in factlikely to endanger the maintenance of international peace and security”: (1) to actunder Article 36; or (2) “recommend such terms of settlement as it may considerappropriate”. Having discussed the first alternative, I will briefly analyse the secondone. As the use of the verb “recommends” does not deprive the SC resolution of- 3 -the legal value under Article 25 UN Charter (Legal Consequences for States, para.115), the decision of the SC concerning the dispute between Ukraine and Russia willbe directly enforceable and produce binding effects to both parties. Bearing in mindthe interpretation in the previous paragraph, even if the SC may be able to adopt aresolution on the dispute, that would still require the compliance with the abstentionprovided in Article 27(3) UN Charter of the Russian Federation and the failure of therecourse to “judicial settlement” that materialises whenever the Court is unable toadjudge on the merits of the case.ConclusionReturning to the questions posed in the beginning: Does the Order have any realor effective power vis-à-vis the Russian Federation? To what extent and how canthe Order be enforced? When analysing the first question, the degree to prove thereal of effective power is observed in the international obligations that derive fromthe Order to the parties to the dispute. In that sense, if the Russian Federation failsto comply with the Order, it will constitute a breach of an international obligation. Asa result, the ICJ may determine, in a legally binding decision, a form of reparationadequate to the nature of the non-compliance with the provisional measure. Incontrast to the Order itself, such judgement possesses a specific enforcementprocedure through the SC that would carry out the terms of the decision.Conversely, in the second question, it was found that the Order does not enjoy adirect enforcement procedure under the UN Charter. Nevertheless, given that theOrder falls into one of the means of peaceful settlement of disputes, it is possiblefor Ukraine to seek recourse to the SC to adopt a decision – directly enforceable– regarding the conflict in which the Russian Federation – a party to the dispute –shall abstain when voting through either the procedures under Article 36 – wherebythe SC can recommend the measures at any moment of the dispute – or Article 37– whereby the SC actions rely on both the duty of Ukraine and Russia to refer thedispute in case there is failure of the recourse to judicial settlement.- 4 -

The ICJ Order in Ukraine v. Russia

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The ICJ Order in Ukraine v. Russia

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