On the Jurisdiction of the International Court of Justice in the Dispute “Ukraine v. The Russian Federation”
Authors: Polivanova Olena 
Published: March 2020

The article examines the Judgment of the United Nations International Court of Justice of November 8, 2019, on the preliminary objections of the Russian Federation in the dispute concerning the application of the International Convention on the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (“Ukraine v. Russian Federation”), filed to the Registry of the Court by Ukraine on January 16, 2017. Given that in its Judgment the International Court of Justice confirmed its jurisdiction ratione materiae on the bases invoked by Ukraine, the article considers the Court’s substantiation of its position in this regard.

As to the Judgment, for the determination of the Court's jurisdiction ratione materiae in the dispute under art. 24.1 of the ICSFT it is crucial to clarify whether a dispute between the parties concerns the interpretation or application of the relevant Convention. Having interpreted the ICSFT provisions, the Court found that the actions of the Russian Federation contested by Ukraine fall within its scope. The Court, thus, dismissed the RF's objection to the ratione materiae jurisdiction under the ICSFT. As the parties had made a genuine attempt to settle the dispute and since the dispute could not be resolved by negotiations within a reasonable time, the Court stated that Ukraine had satisfied the procedural precondition for art. 24.1 of the ICSFT application.

In order to determine jurisdiction ratione materiae of the Court under the ICERD, it was essential for the Court to be convinced that the measures of which Ukraine complains fall within provisions of the ICERD. Considering that both parties agreed that Crimean Tatars and ethnic Ukrainians in Crimea constitute ethnic groups protected under the ICERD and based on the provisions of the ICERD interpretation, the Court found that the measures of the Russian Federation challenged by Ukraine were capable of having adverse effect on enjoyment of certain rights protected under the ICERD. These measures fall within provisions of the Convention. Therefore, the Court concluded that Ukraine's claims fall within the scope of the ICERD.

Determining whether the procedural preconditions under art. 22 of the ICERD have been met, the Court had to define whether two preconditions enshrined in the article are alternative or cumulative. By application of rules of customary international law on treaty interpretation, the Court found that art. 22 of the ICERD imposes alternative preconditions for the Court's jurisdiction. As the dispute between the parties was not referred to the Committee of the Convention, the Court examined whether the parties attempted to negotiate settlement to their dispute.

The Court found that there has been a failure of negotiations between the parties and those negotiations had become futile or deadlocked by time Ukraine filed its application to the Court under art. 22 of the Convention. Accordingly, the procedural preconditions for the Court’s jurisdiction under art. 22 of the ICERD are satisfied in the circumstances of this case. As a result, the Court has jurisdiction to hear Ukraine's claims based on the ICERD.