How ICJ's Order In Ukraine's Plea Creates Binding Obligations On Russia?

The International Court of Justice (ICJ) at the Hague, Netherlands, on Wednesday by 13 votes to 2 issued its order on provisional measures in the case instituted by Ukraine against Russia under the Genocide Convention. It was further averred that its order on provisional measures creates binding international legal obligations under Article 41 of the Statute of the International Court of Justice (ICJ Statute). 

Granting Ukraine's request for provisional measures, the ICJ ordered Russia to "immediately suspend military operations that it commenced on 24 February 2022 on the territory of Ukraine." Furthermore, Russia has also been directed to ensure that any irregular units or individuals or organisations under its effective control take no steps in furtherance of Russia's military operation.

The aforementioned two orders were passed by a majority of 13 votes against 2, with Indian judge at ICJ Justice Dalveer Bhandari voting in favour of the majority. It may be noted that Vice-President of the ICJ Judge Kirill Gevorgian (Russia) and Judge Sue Hanqin (China) voted against the order indicating provisional measures. 

However, all the judges of the ICJ unanimously directed both Ukraine and Russia to ensure that they refrain from any action which can aggravate or extend the dispute before the Court. 

A bench of 15 judges of the ICJ had concluded hearing the matter on March 7, 2022. Oral submissions had been advanced only by Ukraine as Russia had refused to participate in the proceedings. The Court on the last date of hearing had expressed regret over such non-appearance and accordingly President of the ICJ Judge Joan E Donoghue had remarked, "The Court regrets the non-appearance of the Russian Federation in these oral proceedings."

On Wednesday, the ICJ at the outset expressed its regret at the non-appearance of Russia in the proceedings and accordingly observed, "The Court regrets the decision taken by the Russian Federation not to participate in the oral proceedings on the request for the indication of provisional measures, as set out in the above-mentioned letter of 5 March 2022. The non-appearance of a party has a negative impact on the sound administration of justice, as it deprives the Court of assistance that a party could have provided to it. Nevertheless, the Court must proceed in the discharge of its judicial function at any phase of the case". 

Order on provisional measures creates binding international legal obligations under Article 41 of the ICJ Statute 

While issuing its order on provisional measures, the ICJ underscored that its order creates a binding obligation under Article 41 of the ICJ Statute. Reliance was also placed on its LaGrand decision (Germany v. United States of America) dated 27 June 2001. 

"The Court reaffirms that its "orders on provisional measures under Article 41 [of the Statute] have binding effect" (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to whom the provisional measures are addressed", the order averred. 

The ICJ in its judgment in LaGrand had applied a purposive interpretation to deal with the ambiguities of Article 41 of the ICJ Statute. The Court had held that its power to indicate provisional measures which are binding in nature flows from the object and purpose of the Statute. It had been further stipulated that that the power to indicate provisional measures entailed 'that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court'. The Court had further underscored that Article 94 of the United Nations Charter (UN Charter) did not prevent Orders made under Article 41 from having a binding character and neither did the preparatory work.

It has not always been clear whether the provisional measures by the ICJ were legally binding. This was due mainly to the wording of Article 41 of the ICJ Statute, referring to the power to 'indicate' provisional measures, which 'ought' to be taken. In an effort to circumvent such an ambiguity, the more recent UN Convention on the Law of the Sea (UNCLOS) stipulates the power to 'prescribe' rather than 'indicate' provisional measures.

Article 94 of the UN Charter Mandates Member States to comply with ICJ's decisions 

It may be noted that the Statute is an integral part of the UN Charter, as specified by Chapter XIV of the United Nations Charter, which established the ICJ. All 193 UN member states are parties to the Statute by virtue of their ratification of the UN Charter. 

By signing the UN Charter, pursuant to Article 94, a Member State of the United Nations undertakes to comply with the decision of the Court in any case to which it is a party. Both Russia and Ukraine countries have signed and ratified the UN Charter.

Provisional measure directing Russia to provide a compliance report within 1 week and then on a regular basis declined by ICJ 

The ICJ on Wednesday however declined to indicate a provisional measure sought by Ukraine directing the Russian Federation to "provide a report to the Court on measures taken to implement the Court's Order on Provisional Measures one week after such Order and then on a regular basis to be fixed by the Court". 

"The Court further recalls that Ukraine requested it to indicate a provisional measure directing the Russian Federation to "provide a report to the Court on measures taken to implement the Court's Order on Provisional Measures one week after such Order and then on a regular basis to be fixed by the Court". In the circumstances of the present case, however, the Court declines to indicate this measure", the Court recorded in its order. 

ICJ Rules provide for compliance of orders indicating provisional measures 

In 1978 the ICJ formally included a Rule in its Rules of Court to seek compliance of its orders on provisional measures. Article 78 stipulates that the ICJ 'may request information from the parties on any matter connected with the implementation of any provisional measures it has indicated'. 

Although the ICJ in the instant case has declined to issue such a direction in its Initial order however Article 78 does not rule out the use of subsequent Orders, indicated proprio motu, to remind States of their obligations under Orders for provisional measures.

In the Hostages case (US v. Iran), the ICJ for the first time noted in an Order for provisional measures that it would keep the case continuously under review. However, despite the gravity of the cases in questions, the ICJ in its Orders in the Genocide Convention case and in Congo v. Uganda it did not include a specific requirement for the addressee States to inform it of the measures taken in compliance.

Remedies available if Russia refuses to comply with the Court's order on provisional measures

The Court's judgments in the contentious cases are final and without appeal, though there is no way ICJ can enforce its decisions. However, parties have the option of approaching the United Nations Security Council which can compel the States to follow the Court's ruling. However, a judgement against one of the five permanent council members or its ally countries can be vetoed by that member. 

This was infamously observed in the case of Republic of Nicaragua v. The United States of America wherein the Court had decided in favour of Nicaragua and had awarded reparations to Nicaragua. When Nicaragua applied to the United Nations Security Council (UNSC) to convene an emergency meeting on the issue of non-compliance, the USA (a permanent member) had used its veto power against the draft resolution. It may be noted that the United States too, like Russia, had refused to participate in the proceedings.

Pertinently, even though Russia has declined to appear before the ICJ, it has has responded to the case instituted by Ukraine vide a written document filed before the United Nations Security Council (UNSC) averring that the ICJ lacks jurisdiction in hearing the case. It has been claimed that Russia has not invoked the provisions of the Genocide Convention, 1951 as a justification for attacking Ukraine and that the military attack is instead based on Article 51 of the United Nations Charter (self -defense) and customary international law.

The ICJ order will however not be without consequence for Russia as it is bound to have a negative impact on Moscow's justification for war. The ICJ's order could also be used to further justify the imposition of sanctions and other economic/trade measures against Russia by individual nations or regional groups like the European Union.

The Committee of Ministers of the Council of Europe on Wednesday formally decided that the Russian Federation ceases to be a member of the organisation. The Committee of Ministers refused to allow Russia to leave on its own terms, pursuant to a notice of withdrawal filed on the basis of Article 7 of the Statue of the Council of Europe. Rather, the Committee pushed Russia out with no notice period on the basis of Article 8 of the Statute.

Separately and simultaneously, the International Criminal Court (ICC) Prosecutor has decided to open an investigation into the situation in Ukraine, observing that there is a "reasonable basis" to believe that war crimes and crimes against humanity have been committed. Ukraine had earlier accepted the ICC's jurisdiction to look into alleged crimes under the Rome Statute committed on Ukranian territory from November 2013 to 22 February 2014. Also, in a subsequent declaration, Ukraine extended this time period on an open-ended basis to encompass ongoing alleged crimes committed throughout its territory from 20 February 2014 onwards.

Also Read: Russia Must Suspend Military Operations In Ukraine, Directs International Court of Justice

Read Oral Submissions by Ukraine here: By Simply Alleging Genocide, A Country Can't Invade Another : Ukraine Argues Before ICJ In Case Against Russia

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