          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRÊTS,
      AVIS CONSULTATIFS ET ORDONNANCES

     APPLICATION DE LA CONVENTION
  INTERNATIONALE POUR LA RÉPRESSION
    DU FINANCEMENT DU TERRORISME
 ET DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
       (UKRAINE c. FÉDÉRATION DE RUSSIE)

          EXCEPTIONS PRÉLIMINAIRES

           ARRÊT DU 8 NOVEMBRE 2019

                 2019
          INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

  APPLICATION OF THE INTERNATIONAL
   CONVENTION FOR THE SUPPRESSION
   OF THE FINANCING OF TERRORISM
AND OF THE INTERNATIONAL CONVENTION
  ON THE ELIMINATION OF ALL FORMS
      OF RACIAL DISCRIMINATION
       (UKRAINE v. RUSSIAN FEDERATION)

           PRELIMINARY OBJECTIONS

         JUDGMENT OF 8 NOVEMBER 2019

                          Mode oﬃciel de citation :
       Application de la convention internationale pour la répression
      du financement du terrorisme et de la convention internationale
       sur l’élimination de toutes les formes de discrimination raciale
     (Ukraine c. Fédération de Russie), exceptions préliminaires, arrêt,
                         C.I.J. Recueil 2019, p. 558

                              Oﬃcial citation:
      Application of the International Convention for the Suppression
     of the Financing of Terrorism and of the International Convention
          on the Elimination of All Forms of Racial Discrimination
    (Ukraine v. Russian Federation), Preliminary Objections, Judgment,
                        I.C.J. Reports 2019, p. 558

                                              No de vente:
ISSN 0074-4441
ISBN 978-92-1-157378-7
                                              Sales number   1176

                                8 NOVEMBRE 2019

                                       ARRÊT

     APPLICATION DE LA CONVENTION
  INTERNATIONALE POUR LA RÉPRESSION
    DU FINANCEMENT DU TERRORISME
 ET DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
   (UKRAINE c. FÉDÉRATION DE RUSSIE)
      EXCEPTIONS PRÉLIMINAIRES

  APPLICATION OF THE INTERNATIONAL
   CONVENTION FOR THE SUPPRESSION
   OF THE FINANCING OF TERRORISM
AND OF THE INTERNATIONAL CONVENTION
  ON THE ELIMINATION OF ALL FORMS
      OF RACIAL DISCRIMINATION
   (UKRAINE v. RUSSIAN FEDERATION)
       PRELIMINARY OBJECTIONS

                               8 NOVEMBER 2019

                                 JUDGMENT

                                                                           558

                       TABLE OF CONTENTS

                                                                     Paragraphs

Chronology of the Procedure                                               1-22
  I. Introduction                                                        23-37
    A. Subject-matter of the dispute                                     23-32
    B. Bases of jurisdiction invoked by Ukraine                          33-37
  II. The International Convention for the Suppression of the
      Financing of Terrorism                                             38-77
    A. Jurisdiction ratione materiae under the ICSFT                     39-64
    B. Procedural preconditions under Article 24 of the ICSFT            65-77

        1. Whether the dispute between the Parties could not be
           settled through negotiation                                   66-70
        2. Whether the Parties were unable to agree on the organi-
           zation of an arbitration                                      71-77
 III. The International Convention on the Elimination of All
      Forms of Racial Discrimination                                    78-133
    A. Jurisdiction ratione materiae under CERD                          79-97
    B. Procedural preconditions under Article 22 of CERD                98-121

        1. The alternative or cumulative character of the pro-
           cedural preconditions                                        99-113
        2. Whether the Parties attempted to negotiate a settlement
           to their dispute under CERD                                 114-121
    C. Admissibility                                                   122-133
Operative Clause                                                           134

                                                                             4

                                                                            559

               INTERNATIONAL COURT OF JUSTICE

                                 YEAR 2019                                             2019
                                                                                8 November
                                                                                General List
                               8 November 2019                                        No. 166

  APPLICATION OF THE INTERNATIONAL
   CONVENTION FOR THE SUPPRESSION
    OF THE FINANCING OF TERRORISM
AND OF THE INTERNATIONAL CONVENTION
   ON THE ELIMINATION OF ALL FORMS
       OF RACIAL DISCRIMINATION
               (UKRAINE v. RUSSIAN FEDERATION)

                     PRELIMINARY OBJECTIONS

                                JUDGMENT

   Subject-matter of the dispute — Proceedings instituted by Ukraine under the
ICSFT and CERD — Two aspects of the dispute — Alleged breaches by the Rus-
sian Federation of its obligations under the ICSFT and CERD.
   Bases of jurisdiction invoked by Ukraine — Article 24, paragraph 1, of the
ICSFT and Article 22 of CERD.

                                      * *
  Whether the Court has jurisdiction ratione materiae under the ICSFT.
  Whether acts of which Applicant complains fall within provisions of the
ICSFT — Interpretation of the ICSFT according to rules contained in Vienna
Convention on Law of Treaties — Scope of obligations under the ICSFT — The
ICSFT addresses offences committed by individuals — Financing by a State of
acts of terrorism outside scope of the ICSFT — Ordinary meaning of term “any
person” in Article 2 of the ICSFT — Term applies both to persons acting in pri-
vate capacity and to those who are State agents — All States parties to the ICSFT
under obligation to take appropriate measures and to co-operate in prevention and

                                                                               5

             application of the icsft and cerd (judgment)                     560

suppression of offences of financing acts of terrorism — Definition of “funds” in
Article 1 need not be addressed at present stage of proceedings — Whether specific
act falls within meaning of Article 2, paragraph 1 (a) or (b), of the ICSFT is mat-
ter for the merits — Questions concerning existence of requisite mental elements
not relevant to the Court’s jurisdiction ratione materiae — Objection to the
Court’s jurisdiction ratione materiae under the ICSFT cannot be upheld.

                                        *
   Whether the procedural preconditions under Article 24, paragraph 1, of the
ICSFT have been met.
   First precondition, namely, whether dispute between the Parties could not be
settled through negotiation — Precondition requires genuine attempt to settle dis-
pute through negotiation — Little progress made by the Parties during negotia-
tions — Dispute could not be settled through negotiation within reasonable time —
First precondition met — Second precondition, namely, whether the Parties were
unable to agree on organization of arbitration — Failure to reach agreement dur-
ing requisite period despite negotiations — Second precondition fulfilled.

                                        *
  The Court has jurisdiction to entertain Ukraine’s claims under the ICSFT.

                                       * *
  Whether the Court has jurisdiction ratione materiae under CERD.

   Whether measures of which Ukraine complains fall within provisions of
CERD — Parties agree that Crimean Tatars and ethnic Ukrainians in Crimea
constitute ethnic groups protected under CERD — Rights and obligations con-
tained in CERD broadly formulated — Measures of which Ukraine complains are
capable of having adverse effect on enjoyment of certain rights protected under
CERD — These measures fall within provisions of CERD — Claims of Ukraine
fall within scope of CERD.

                                        *
  Whether the procedural preconditions under Article 22 of CERD have been met.

   Whether two preconditions alternative or cumulative — Application of rules of
customary international law on treaty interpretation — Meaning of conjunction
“or” in phrase “not settled by negotiation or by the procedures expressly provided
for in [CERD]” — Term “or” may have either disjunctive or conjunctive mean-
ing — Article 22 must be interpreted in its context — Negotiation and CERD

                                                                                6

              application of the icsft and cerd (judgment)                     561

Committee procedure two means to achieve same objective — Context of
Article 22 does not support a reading that preconditions cumulative in nature —
Article 22 must also be interpreted in light of object and purpose of CERD —
Aim of States parties to eradicate racial discrimination effectively and promptly
— Achievement of such aims more difficult if procedural preconditions under
Article 22 cumulative — No need to examine travaux préparatoires of CERD —
Article 22 imposes alternative preconditions to the Court’s jurisdiction.

   Whether the Parties attempted to negotiate settlement to their dispute — Notion
of “negotiation” — Precondition of negotiation met when there has been a failure
of negotiations, or when negotiations have become futile or deadlocked — Genuine
attempt at negotiation made by Ukraine — Negotiations between the Parties futile
or deadlocked by time Ukraine filed Application — Procedural preconditions satis-
fied.

                                         *
  The Court has jurisdiction to entertain Ukraine’s claims under CERD.

                                       * *
   Objection by the Russian Federation to admissibility of Ukraine’s Application
with regard to claims under CERD — Contention that Application inadmissible
because local remedies not exhausted before dispute referred to the Court — When
a State brings claim on behalf of its nationals customary international law requires
previous exhaustion of local remedies — Ukraine challenges alleged pattern of
conduct of the Russian Federation with regard to treatment of Crimean Tatar and
Ukrainian communities in Crimea — Rule of exhaustion of local remedies not
applicable in circumstances of present case — Objection to admissibility of
Ukraine’s Application with regard to CERD rejected.

                                       * *
  The Court has jurisdiction to entertain the claims made by Ukraine under
CERD and Ukraine’s Application with regard to those claims is admissible.

                                 JUDGMENT

Present: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
         Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde,

                                                                                7

             application of the icsft and cerd (judgment)                   562

         Bhandari, Robinson, Crawford, Salam, Iwasawa; Judges ad hoc
         Pocar, Skotnikov; Registrar Gautier.

  In the case concerning the application of the International Convention for the
Suppression of the Financing of Terrorism and of the International Convention
on the Elimination of All Forms of Racial Discrimination,
  between
Ukraine,
represented by
   H.E. Ms Olena Zerkal, Deputy Minister for Foreign Aﬀairs of Ukraine,
   as Agent;
   H.E. Mr. Vsevolod Chentsov, Ambassador Extraordinary and Plenipoten-
tiary of Ukraine to the Kingdom of the Netherlands,
   as Co-Agent;
   Mr. Harold Hongju Koh, Sterling Professor of International Law at Yale
Law School, member of the Bars of New York and the District of Columbia,

   Mr. Jean-Marc Thouvenin, Professor at the University Paris Nanterre,
Secretary-General of the Hague Academy of International Law,
   Ms Marney L. Cheek, Covington & Burling LLP, member of the Bar of the
District of Columbia,
   Mr. Jonathan Gimblett, Covington & Burling LLP, member of the Bars of
the District of Columbia and Virginia,
   Mr. David M. Zionts, Covington & Burling LLP, member of the Bars of the
Supreme Court of the United States and the District of Columbia,
   as Counsel and Advocates;
   Ms Oksana Zolotaryova, Acting Director, International Law Department,
Ministry of Foreign Aﬀairs of Ukraine,
   Ms Clovis Trevino, Covington & Burling LLP, member of the Bars of the
District of Columbia, Florida and New York,
   Mr. Volodymyr Shkilevych, Covington & Burling LLP, member of the Bars
of Ukraine and New York,
   Mr. George M. Mackie, Covington & Burling LLP, member of the Bars of
the District of Columbia and Virginia,
   Ms Megan O’Neill, Covington & Burling LLP, member of the Bars of the
District of Columbia and Texas,
   as Counsel;
   Mr. Taras Kachka, Adviser to the Minister for Foreign Aﬀairs of Ukraine,
   Mr. Roman Andarak, Deputy Head of the Mission of Ukraine to the Euro-
pean Union,
   Mr. Refat Chubarov, Head of the Mejlis of the Crimean Tatar People, Peo-
ple’s Deputy of Ukraine,
   Mr. Bohdan Tyvodar, Deputy Head of Division, Security Service of Ukraine,

  Mr. Ihor Yanovskyi, Head of Unit, Security Service of Ukraine,

                                                                              8

             application of the icsft and cerd (judgment)                   563

   Mr. Mykola Govorukha, Deputy Head of Unit, Prosecutor General’s Oﬃce
of Ukraine,
   Ms Myroslava Krasnoborova, Liaison Prosecutor for Eurojust,
   as Advisers;
   Ms Katerina Gipenko, Ministry of Foreign Aﬀairs of Ukraine,
   Ms Valeriya Budakova, Ministry of Foreign Aﬀairs of Ukraine,
   Ms Olena Vashchenko, Consulate General of Ukraine in Istanbul,
   Ms Soﬁa Shovikova, Embassy of Ukraine in the Kingdom of the Netherlands,
   Ms Olga Bondarenko, Embassy of Ukraine in the Kingdom of the Netherlands,
   Mr. Vitalii Stanzhytskyi, Ministry of Interior of Ukraine,
   Ms Angela Gasca, Covington & Burling LLP,
   Ms Rebecca Mooney, Covington & Burling LLP,
   as Assistants,
  and
the Russian Federation,
represented by
   H.E. Mr. Dmitry Lobach, Ambassador-at-large, Ministry of Foreign Aﬀairs
of the Russian Federation,
   Mr. Ilya Rogachev, Director, Department of New Challenges and Threats,
Ministry of Foreign Aﬀairs of the Russian Federation,
   Mr. Grigory Lukiyantsev, PhD, Special Representative of the Ministry of
Foreign Aﬀairs of the Russian Federation for Human Rights, Democracy and
the Rule of Law, Deputy Director, Department for Humanitarian Co-operation
and Human Rights, Ministry of Foreign Aﬀairs of the Russian Federation,

   as Agents;
   Mr. Mathias Forteau, Professor at the University Paris Nanterre,
   Mr. Alain Pellet, Emeritus Professor at the University Paris Nanterre, former
chairperson of the International Law Commission, member of the Institut de
droit international,
   Mr. Samuel Wordsworth, QC, member of the Bar of England and Wales,
member of the Paris Bar, Essex Court Chambers,
   Mr. Andreas Zimmermann, LLM (Harvard University), Professor of Inter-
national Law at the University of Potsdam, Director of the Potsdam Centre of
Human Rights, member of the Permanent Court of Arbitration and of the
Human Rights Committee,
   as Counsel and Advocates;
   Mr. Sean Aughey, member of the Bar of England and Wales, 11KBW Cham-
bers,
   Ms Tessa Barsac, consultant in international law, Master (University Paris
Nanterre), LLM (Leiden University),
   Mr. Jean-Baptiste Merlin, doctorate in law (University Paris Nanterre), con-
sultant in public international law,
   Mr. Michael Swainston, QC, member of the Bar of England and Wales, Brick
Court Chambers,
   Mr. Vasily Torkanovskiy, member of the Saint Petersburg Bar, Ivanyan &
Partners,

                                                                              9

             application of the icsft and cerd (judgment)                 564

   Mr. Sergey Usoskin, member of the Saint Petersburg Bar,
   as Counsel;
   Mr. Ayder Ablyatipov, Deputy Minister of Education, Science and Youth of
the Republic of Crimea,
   Mr. Andrey Anokhin, expert, Investigative Committee of the Russian Fed-
eration,
   Mr. Mikhail Averyanov, Second Secretary, Permanent Mission of the Rus-
sian Federation to the Organization for Security and Co-operation in Europe,

   Ms Héloïse Bajer-Pellet, member of the Paris Bar,
   Ms Maria Barsukova, Third Secretary, Department for Humanitarian
Co-operation and Human Rights, Ministry of Foreign Aﬀairs of the Rus-
sian Federation,
   Ms Olga Chekrizova, Second Secretary, Department for Humanitarian
Co-operation and Human Rights, Ministry of Foreign Aﬀairs of the Rus-
sian Federation,
   Ms Ksenia Galkina, Third Secretary, Legal Department, Ministry of Foreign
Aﬀairs of the Russian Federation,
   Mr. Alexander Girin, expert, Ministry of Defence of the Russian Federation,

   Ms Daria Golubkova, administrative assistant, Legal Department, Ministry
of Foreign Aﬀairs of the Russian Federation,
   Ms Victoria Goncharova, Third Secretary, Embassy of the Russian Federa-
tion in the Kingdom of the Netherlands,
   Ms Anastasia Gorlanova, Attaché, Legal Department, Ministry of Foreign
Aﬀairs of the Russian Federation,
   Ms Valeria Grishchenko, interpreter, Investigative Committee of the Rus-
sian Federation,
   Mr. Denis Grunis, expert, Prosecutor General’s Oﬃce of the Russian Federa-
tion,
   Mr. Ruslan Kantur, Attaché, Department of New Challenges and Threats,
Ministry of Foreign Aﬀairs of the Russian Federation,
   Ms Svetlana Khomutova, expert, Federal Financial Monitoring Service of
the Russian Federation,
   Mr. Konstantin Kosorukov, Head of Division, Legal Department, Ministry
of Foreign Aﬀairs of the Russian Federation,
   Ms Maria Kuzmina, Acting Head of Division, Second CIS Department, Min-
istry of Foreign Aﬀairs of the Russian Federation,

   Mr. Petr Litvishko, expert, Prosecutor General’s Oﬃce of the Russian Fed-
eration,
   Mr. Timur Makhmudov, Attaché, Legal Department, Ministry of Foreign
Aﬀairs of the Russian Federation,
   Mr. Konstantin Pestchanenko, expert, Ministry of Defence of the Rus-
sian Federation,
   Mr. Grigory Prozukin, expert, Investigative Committee of the Russian Fed-
eration,
   Ms Soﬁa Sarenkova, Senior Associate, Ivanyan & Partners,
   Ms Elena Semykina, paralegal, Ivanyan & Partners,
   Ms Svetlana Shatalova, First Secretary, Legal Department, Ministry of For-
eign Aﬀairs of the Russian Federation,

                                                                           10

             application of the icsft and cerd (judgment)                     565

  Ms Angelina Shchukina, Junior Associate, Ivanyan & Partners,
  Ms Kseniia Soloveva, Associate, Ivanyan & Partners,
  Ms Maria Zabolotskaya, Head of Division, Legal Department, Ministry of
Foreign Aﬀairs of the Russian Federation,
  Ms Olga Zinchenko, Attaché, Department for Humanitarian Co-operation
and Human Rights, Ministry of Foreign Aﬀairs of the Russian Federation,

  as Advisers,

  The Court,
  composed as above,
  after deliberation,
  delivers the following Judgment:
   1. On 16 January 2017, the Government of Ukraine ﬁled in the Registry of
the Court an Application instituting proceedings against the Russian Federa-
tion with regard to alleged violations by the latter of its obligations under the
International Convention for the Suppression of the Financing of Terrorism of
9 December 1999 (hereinafter the “ICSFT”) and the International Convention
on the Elimination of All Forms of Racial Discrimination of 21 December 1965
(hereinafter “CERD”).
   2. In its Application, Ukraine seeks to found the Court’s jurisdiction on Arti-
cle 24, paragraph 1, of the ICSFT and on Article 22 of CERD, on the basis of
Article 36, paragraph 1, of the Statute of the Court.
   3. On 16 January 2017, Ukraine also submitted a Request for the indication
of provisional measures, referring to Article 41 of the Statute and to Articles 73,
74 and 75 of the Rules of Court.
   4. The Registrar immediately communicated the Application and the Request
for the indication of provisional measures to the Government of the Rus-
sian Federation, in accordance with Article 40, paragraph 2, of the Statute and
Article 73, paragraph 2, of the Rules of Court, respectively. He also notiﬁed the
Secretary-General of the United Nations of the ﬁling of the Application and the
Request for the indication of provisional measures by Ukraine.
   5. In addition, by a letter dated 17 January 2017, the Registrar informed all
Member States of the United Nations of the ﬁling of the above-mentioned
Application and Request for the indication of provisional measures.
   6. Pursuant to Article 40, paragraph 3, of the Statute, the Registrar notiﬁed
the Member States of the United Nations, through the Secretary-General, of the
ﬁling of the Application, by transmission of the printed bilingual text of that
document.
   7. By letters dated 20 January 2017, the Registrar informed both Parties that,
referring to Article 24, paragraph 1, of the Statute, the Member of the Court of
Russian nationality informed the President of the Court that he considered that
he should not take part in the decision of the case. Pursuant to Article 31 of the
Statute and Article 37, paragraph 1, of the Rules of Court, the Russian Federa-
tion chose Mr. Leonid Skotnikov to sit as judge ad hoc in the case.
   8. Since the Court included upon the Bench no judge of Ukrainian national-
ity, Ukraine proceeded to exercise the right conferred upon it by Article 31
of the Statute to choose a judge ad hoc to sit in the case; it chose Mr. Fausto
Pocar.

                                                                                11

             application of the icsft and cerd (judgment)                      566

  9. By an Order of 19 April 2017, the Court, having heard the Parties, indi-
cated the following provisional measures:
        “(1) With regard to the situation in Crimea, the Russian Federation must,
     in accordance with its obligations under the International Convention on
     the Elimination of All Forms of Racial Discrimination, [. . .]
     (a) Refrain from maintaining or imposing limitations on the ability of the
          Crimean Tatar community to conserve its representative institutions,
          including the Mejlis;
     (b) [. . .] Ensure the availability of education in the Ukrainian language;

        (2) [. . .] Both Parties shall refrain from any action which might aggravate
     or extend the dispute before the Court or make it more diﬃcult to resolve.”
     (I.C.J. Reports 2017, pp. 140-141, para. 106.)
   10. In a letter dated 19 April 2018, Ukraine drew the Court’s attention to the
Russian Federation’s alleged non-compliance with point (1) (a) of operative
paragraph 106 of the Court’s Order on the indication of provisional measures.
Ukraine stated that this lack of compliance stems from the Russian Federation’s
interpretation of the provision in question, which is contrary to its proper mean-
ing. Consequently, in light of the “diﬀerent and conﬂicting interpretations”
ascribed to point (1) (a) by the Parties, Ukraine requested that the Court “exer-
cise its authority to interpret its Order of 19 April 2017”.
   11. Following this communication, on 17 May 2018 the Court requested the
Russian Federation to provide, by 7 June 2018 at the latest, information on
measures that had been taken by it to implement point (1) (a) of operative
paragraph 106 of the Court’s Order of 19 April 2017, and Ukraine to furnish,
by the same date, any information it might have in that regard. This informa-
tion was duly provided on 7 June 2018. Each Party having been given until
21 June 2018 to provide comments on the information submitted by the other,
the Court received comments from Ukraine on 12 June 2018 and from the Rus-
sian Federation on 21 June 2018. On 18 July 2018, having considered the infor-
mation and comments submitted to it by the Parties, the Court again requested
the Russian Federation to provide, by 18 January 2019, information regarding
measures taken by it to implement point (1) (a) of operative paragraph 106 of
the Court’s Order of 19 April 2017, and Ukraine to furnish, by the same date,
any information it might have in that regard. This information having been
transmitted to the Court, each Party was invited to communicate its comments
on the information received from the other, by 19 March 2019 at the latest.
Both Parties provided their comments on that date. By letters dated 29 March
2019, the Parties were informed that the Court had considered and taken due
note of the various communications submitted by them. It was further indicated
in this respect that the issues raised in these communications may need to be
addressed by the Court at a later juncture, should the case proceed to the merits.
Under such circumstances, the Parties would be at liberty to raise any issues of
concern to them relating to the provisional measures indicated by the Court.

  12. Pursuant to Article 43, paragraph 1, of the Rules of Court, the Registrar
addressed to States parties to the ICSFT and to States parties to CERD the
notiﬁcations provided for in Article 63, paragraph 1, of the Statute. In addition,

                                                                                12

             application of the icsft and cerd (judgment)                   567

with regard to both of these instruments, in accordance with Article 69, para-
graph 3, of the Rules of Court, the Registrar addressed to the United Nations,
through its Secretary-General, the notiﬁcations provided for in Article 34, para-
graph 3, of the Statute.
   13. By an Order dated 12 May 2017, the President of the Court ﬁxed 12 June
2018 and 12 July 2019 as the respective time-limits for the ﬁling of a Memorial
by Ukraine and a Counter-Memorial by the Russian Federation. The Memorial
of Ukraine was ﬁled within the time-limit thus ﬁxed.
   14. On 12 September 2018, within the time-limit prescribed by Article 79,
paragraph 1, of the Rules of Court of 14 April 1978 as amended on 1 February
2001, the Russian Federation raised preliminary objections to the jurisdiction of
the Court and the admissibility of the Application. Consequently, by an Order
of 17 September 2018, having noted that, by virtue of Article 79, paragraph 5,
of the Rules of Court of 14 April 1978 as amended on 1 February 2001, the
proceedings on the merits were suspended, the President of the Court ﬁxed
14 January 2019 as the time-limit within which Ukraine could present a written
statement of its observations and submissions on the preliminary objections
raised by the Russian Federation. Ukraine ﬁled such a statement within the
time-limit so prescribed and the case thus became ready for hearing in respect of
the preliminary objections.
   15. Referring to Article 53, paragraph 1, of the Rules of Court, the Govern-
ment of the State of Qatar asked to be furnished with copies of the Memorial of
Ukraine and the preliminary objections of the Russian Federation ﬁled in the
case, as well as any documents annexed thereto. Having ascertained the views of
the Parties in accordance with the same provision, the Court decided, taking
into account the objection raised by one Party, that it would not be appropriate
to grant that request. The Registrar duly communicated that decision to the
Government of the State of Qatar and to the Parties.
   16. Pursuant to Article 53, paragraph 2, of its Rules, after ascertaining the
views of the Parties, the Court decided that copies of the written pleadings and
documents annexed thereto, with the exception of the annexes to the Memorial,
would be made accessible to the public on the opening of the oral proceedings.
   17. Public hearings on the preliminary objections raised by the Russian Fed-
eration were held from 3 to 7 June 2019, during which the Court heard the oral
arguments and replies of:
For the Russian Federation: H.E. Mr. Dmitry Lobach,
                            Mr. Samuel Wordsworth,
                            Mr. Andreas Zimmermann,
                            Mr. Grigory Lukiyantsev,
                            Mr. Alain Pellet,
                            Mr. Mathias Forteau.
For Ukraine:                H.E. Ms Olena Zerkal,
                            Mr. Jean-Marc Thouvenin,
                            Ms Marney L. Cheek,
                            Mr. David M. Zionts,
                            Mr. Harold Hongju Koh,
                            Mr. Jonathan Gimblett.

                                       *

                                                                              13

          application of the icsft and cerd (judgment)                       568

18. In the Application, the following claims were made by Ukraine:
With regard to the ICSFT:
     “134. Ukraine respectfully requests the Court to adjudge and declare that
  the Russian Federation, through its State organs, State agents, and other
  persons and entities exercising governmental authority, and through other
  agents acting on its instructions or under its direction and control, has vio-
  lated its obligations under the Terrorism Financing Convention by:

  (a) supplying funds, including in-kind contributions of weapons and train-
      ing, to illegal armed groups that engage in acts of terrorism in Ukraine,
      including the DPR, the LPR, the Kharkiv Partisans, and associated
      groups and individuals, in violation of Article 18;

  (b) failing to take appropriate measures to detect, freeze, and seize funds
      used to assist illegal armed groups that engage in acts of terrorism in
      Ukraine, including the DPR, the LPR, the Kharkiv Partisans, and asso-
      ciated groups and individuals, in violation of Articles 8 and 18;

  (c) failing to investigate, prosecute, or extradite perpetrators of the ﬁnanc-
      ing of terrorism found within its territory, in violation of Articles 9, 10,
      11, and 18;
  (d) failing to provide Ukraine with the greatest measure of assistance in
      connection with criminal investigations of the ﬁnancing of terrorism,
      in violation of Articles 12 and 18; and
  (e) failing to take all practicable measures to prevent and counter acts of
      ﬁnancing of terrorism committed by Russian public and private actors,
      in violation of Article 18.
    135. Ukraine respectfully requests the Court to adjudge and declare that
  the Russian Federation bears international responsibility, by virtue of its
  sponsorship of terrorism and failure to prevent the ﬁnancing of terrorism
  under the Convention, for the acts of terrorism committed by its proxies in
  Ukraine, including:
  (a) the shoot-down of Malaysia Airlines Flight MH17;

  (b) the shelling of civilians, including in Volnovakha, Mariupol, and
       Kramatorsk; and
  (c) the bombing of civilians, including in Kharkiv.
     136. Ukraine respectfully requests the Court to order the Russian Fed-
  eration to comply with its obligations under the Terrorism Financing Con-
  vention, including that the Russian Federation:
  (a) immediately and unconditionally cease and desist from all support,
       including the provision of money, weapons, and training, to illegal
       armed groups that engage in acts of terrorism in Ukraine, including the
       DPR, the LPR, the Kharkiv Partisans, and associated groups and indi-
       viduals;
  (b) immediately make all eﬀorts to ensure that all weaponry provided to
       such armed groups is withdrawn from Ukraine;

                                                                               14

        application of the icsft and cerd (judgment)                    569

(c) immediately exercise appropriate control over its border to prevent
    further acts of ﬁnancing of terrorism, including the supply of weapons,
    from the territory of the Russian Federation to the territory of Ukraine;
(d) immediately stop the movement of money, weapons, and all other
    assets from the territory of the Russian Federation and occupied
    Crimea to illegal armed groups that engage in acts of terrorism in
    Ukraine, including the DPR, the LPR, the Kharkiv Partisans, and asso-
    ciated groups and individuals, including by freezing all bank accounts
    used to support such groups;

(e) immediately prevent all Russian oﬃcials from ﬁnancing terrorism in
    Ukraine, including Sergei Shoigu, Minister of Defence of the Rus-
    sian Federation; Vladimir Zhirinovsky, Vice-Chairman of the State
    Duma; Sergei Mironov, member of the State Duma; and Gennadiy
    Zyuganov, member of the State Duma, and initiate prosecution against
    these and other actors responsible for ﬁnancing terrorism;
(f) immediately provide full co-operation to Ukraine in all pending and
    future requests for assistance in the investigation and interdiction of
    the ﬁnancing of terrorism relating to illegal armed groups that engage
    in acts of terrorism in Ukraine, including the DPR, the LPR, the
    Kharkiv Partisans, and associated groups and individuals;

(g) make full reparation for the shoot-down of Malaysia Airlines Flight
    MH17;
(h) make full reparation for the shelling of civilians in Volnovakha;

(i) make full reparation for the shelling of civilians in Mariupol;

(j) make full reparation for the shelling of civilians in Kramatorsk;

(k) make full reparation for the bombing of civilians in Kharkiv; and

(l) make full reparation for all other acts of terrorism the Russian
    Federation has caused, facilitated, or supported through its ﬁnancing
    of terrorism, and failure to prevent and investigate the ﬁnancing of
    terrorism.”
With regard to CERD:
   “137. Ukraine respectfully requests the Court to adjudge and declare
that the Russian Federation, through its State organs, State agents, and
other persons and entities exercising governmental authority, including the
de facto authorities administering the illegal Russian occupation of Crimea,
and through other agents acting on its instructions or under its direction
and control, has violated its obligations under the CERD by:

(a) systematically discriminating against and mistreating the Crimean Tata
    and ethnic Ukrainian communities in Crimea, in furtherance of a State
    policy of cultural erasure of disfavoured groups perceived to be oppo-
    nents of the occupation régime;

(b) holding an illegal referendum in an atmosphere of violence and intim-
    idation against non-Russian ethnic groups, without any eﬀort to seek

                                                                          15

        application of the icsft and cerd (judgment)                   570

     a consensual and inclusive solution protecting those groups, and as an
     initial step toward depriving these communities of the protection
     of Ukrainian law and subjecting them to a régime of Russian domi-
     nance;
(c) suppressing the political and cultural expression of Crimean Tatar iden-
     tity, including through the persecution of Crimean Tatar leaders and
     the ban on the Mejlis of the Crimean Tatar People;
(d) preventing Crimean Tatars from gathering to celebrate and commem-
     orate important cultural events;
(e) perpetrating and tolerating a campaign of disappearances and murders
     of Crimean Tatars;
(f) harassing the Crimean Tatar community with an arbitrary régime of
     searches and detention;
(g) silencing Crimean Tatar media;
(h) suppressing Crimean Tatar language education and the community’s
     educational institutions;
(i) suppressing Ukrainian language education relied on by ethnic Ukrain-
     ians;
(j) preventing ethnic Ukrainians from gathering to celebrate and com-
     memorate important cultural events; and
(k) silencing ethnic Ukrainian media.
   138. Ukraine respectfully requests the Court to order the Russian
Federation to comply with its obligations under the CERD, including:

(a) immediately cease and desist from the policy of cultural erasure and
    take all necessary and appropriate measures to guarantee the full and
    equal protection of the law to all groups in Russian-occupied Crimea,
    including Crimean Tatars and ethnic Ukrainians;

(b) immediately restore the rights of the Mejlis of the Crimean Tatar Peo-
    ple and of Crimean Tatar leaders in Russian-occupied Crimea;
(c) immediately restore the rights of the Crimean Tatar People in
    Russian-occupied Crimea to engage in cultural gatherings, including
    the annual commemoration of the Sürgün;
(d) immediately take all necessary and appropriate measures to end the
    disappearance and murder of Crimean Tatars in Russian-occupied
    Crimea, and to fully and adequately investigate the disappearances of
    Reshat Ametov, Timur Shaimardanov, Ervin Ibragimov, and all other
    victims;
(e) immediately take all necessary and appropriate measures to end unjus-
    tiﬁed and disproportionate searches and detentions of Crimean Tatars
    in Russian-occupied Crimea;

(f) immediately restore licenses and take all other necessary and appropri-
    ate measures to permit Crimean Tatar media outlets to resume opera-
    tions in Russian-occupied Crimea;

(g) immediately cease interference with Crimean Tatar education and take
    all necessary and appropriate measures to restore education in the
    Crimean Tatar language in Russian-occupied Crimea;

                                                                         16

             application of the icsft and cerd (judgment)                    571

    (h) immediately cease interference with ethnic Ukrainian education and
        take all necessary and appropriate measures to restore education in the
        Ukrainian language in Russian-occupied Crimea;

    (i) immediately restore the rights of ethnic Ukrainians to engage in cul-
        tural gatherings in Russian-occupied Crimea;
    (j) immediately take all necessary and appropriate measures to permit the
        free operation of ethnic Ukrainian media in Russian-occupied Crimea;
        and
    (k) make full reparation for all victims of the Russian Federation’s policy
        and pattern of cultural erasure through discrimination in Russian-
        occupied Crimea.”

  19. In the written proceedings on the merits, the following submissions were
presented on behalf of the Government of Ukraine in its Memorial:
      “653. For the reasons set out in this Memorial, Ukraine respectfully
    requests the Court to adjudge and declare that:
      ICSFT
    (a) The Russian Federation is responsible for violations of Article 18 of
        the ICSFT by failing to co-operate in the prevention of the terrorism
        ﬁnancing oﬀenses set forth in Article 2 by taking all practicable meas-
        ures to prevent and counter preparations in its territory for the com-
        mission of those oﬀenses within or outside its territory. Speciﬁcally, the
        Russian Federation has violated Article 18 by failing to take the prac-
        ticable measures of: (i) preventing Russian state oﬃcials and agents
        from ﬁnancing terrorism in Ukraine; (ii) discouraging public and pri-
        vate actors and other non-governmental third parties from ﬁnancing
        terrorism in Ukraine; (iii) policing its border with Ukraine to stop the
        ﬁnancing of terrorism; and (iv) monitoring and suspending banking
        activity and other fundraising activities undertaken by private and pub-
        lic actors on its territory to ﬁnance [of] terrorism in Ukraine.

    (b) The Russian Federation is responsible for violations of Article 8 of the
        ICSFT by failing to identify and detect funds used or allocated for the
        purposes of ﬁnancing terrorism in Ukraine, and by failing to freeze or
        seize funds used or allocated for the purpose of ﬁnancing terrorism in
        Ukraine.
    (c) The Russian Federation has violated Articles 9 and 10 of the ICSFT
        by failing to investigate the facts concerning persons who have commit-
        ted or are alleged to have committed terrorism ﬁnancing in Ukraine,
        and to extradite or prosecute alleged oﬀenders.
    (d) The Russian Federation has violated Article 12 of the ICSFT by fail-
        ing to provide Ukraine the greatest measure of assistance in connec-
        tion with criminal investigations in respect of terrorism ﬁnancing
        oﬀenses.
    (e) As a consequence of the Russian Federation’s violations of the ICSFT,
        its proxies in Ukraine have been provided with funds that enabled them
        to commit numerous acts of terrorism, including the downing of
        Flight MH17, the shelling of Volnovakha, Mariupol, Kramatorsk, and

                                                                               17

        application of the icsft and cerd (judgment)                     572

    Avdiivka, the bombings of the Kharkiv unity march and Stena
    Rock Club, the attempted assassination of a Ukrainian member of
    Parliament, and others.
   CERD
(f) The Russian Federation has violated CERD Article 2 by engaging in
    numerous and pervasive acts of racial discrimination against the
    Crimean Tatar and Ukrainian communities in Crimea and by engaging
    in a policy and practice of racial discrimination against those commu-
    nities.
(g) The Russian Federation has further violated CERD Article 2 by spon-
    soring, defending or supporting racial discrimination by other persons
    or organizations against the Crimean Tatar and Ukrainian communi-
    ties in Crimea.
(h) The Russian Federation has violated CERD Article 4 by promoting
    and inciting racial discrimination against the Crimean Tatar and
    Ukrainian communities in Crimea.
(i) The Russian Federation has violated CERD Article 5 by failing to
    guarantee the right of members of the Crimean Tatar and Ukrainian
    communities to equality before the law, notably in their enjoyment of
    (i) the right to equal treatment before the tribunals and all other organs
    administering justice; (ii) the right to security of person and protection
    by the State against violence or bodily harm, whether inﬂicted by gov-
    ernment oﬃcials or by any individual group or institution; (iii) political
    rights; (iv) other civil rights; and (v) economic, social and cultural
    rights.
(j) The Russian Federation has violated CERD Article 6 by failing to
    assure the Crimean Tatar and Ukrainian communities in Crimea eﬀec-
    tive protection and remedies against acts of racial discrimination.

(k) The Russian Federation has violated CERD Article 7 by failing to
     adopt immediate and eﬀective measures in the ﬁelds of teaching, edu-
     cation, culture and information, with a view to combating prejudices
     which lead to racial discrimination against the Crimean Tatar and
     Ukrainian communities in Crimea.
   654. The aforementioned acts constitute violations of the ICSFT and
CERD, and are therefore internationally wrongful acts for which the Rus-
sian Federation bears international responsibility. The Russian Federation
is therefore required to:
   ICSFT
(a) Cease immediately each of the above violations of ICSFT Articles 8, 9,
     10, 12, and 18 and provide Ukraine with appropriate guarantees
     and public assurances that it will refrain from such actions in the
     future.
(b) Take all practicable measures to prevent the commission of terrorism
     ﬁnancing oﬀences, including (i) ensuring that Russian state oﬃcials or
     any other person under its jurisdiction do not provide weapons or other
     funds to groups engaged in terrorism in Ukraine, including without
     limitation the DPR, LPR, Kharkiv Partisans, and other illegal armed
     groups; (ii) cease encouraging public and private actors and other
     non-governmental third parties to ﬁnance terrorism in Ukraine;

                                                                           18

        application of the icsft and cerd (judgment)                     573

    (iii) police Russia’s border with Ukraine to stop any supply of weapons
    into Ukraine; and (iv) monitor and prohibit private and public trans-
    actions originating in Russian territory, or initiated by Russian nation-
    als, that ﬁnance terrorism in Ukraine, including by enforcing banking
    restrictions to block transactions for the beneﬁt of groups engaged in
    terrorism in Ukraine, including without limitation the DPR, LPR, the
    Kharkiv Partisans, and other illegal armed groups.

(c) Freeze or seize assets of persons suspected of supplying funds to groups
    engaged in terrorism in Ukraine, including without limitation illegal
    armed groups associated with the DPR, LPR, and Kharkiv Partisans,
    and cause the forfeiture of assets of persons found to have supplied
    funds to such groups.
(d) Provide the greatest measure of assistance to Ukraine in connection
    with criminal investigations of suspected ﬁnancers of terrorism.

(e) Pay Ukraine ﬁnancial compensation, in its own right and as
    parens patriae for its citizens, for the harm Ukraine has suﬀered as a
    result of Russia’s violations of the ICSFT, including the harm suﬀered
    by its nationals injured by acts of terrorism that occurred as a conse-
    quence of the Russian Federation’s ICSFT violations, with such com-
    pensation to be quantiﬁed in a separate phase of these proceedings.

(f) Pay moral damages to Ukraine in an amount deemed appropriate by
    the Court, reﬂecting the seriousness of the Russian Federation’s viola-
    tions of the ICSFT, the quantum of which is to be determined in a
    separate phase of these proceedings.
   CERD
(g) Immediately comply with the provisional measures ordered by the
    Court on 19 April 2017, in particular by lifting its ban on the activities
    of the Mejlis of the Crimean Tatar People and by ensuring the availa-
    bility of education in the Ukrainian language.
(h) Cease immediately each of the above violations of CERD Articles 2, 4,
    5, 6, and 7, and provide Ukraine with appropriate guarantees and pub-
    lic assurances that it will refrain from such actions in the future.

(i) Guarantee the right of members of the Crimean Tatar and Ukrainian
    communities to equality before the law, notably in the enjoyment of
    the human rights and fundamental freedoms protected by the Conven-
    tion.
(j) Assure to all residents of Crimea within its jurisdiction eﬀective protec-
    tion and remedies against acts of racial discrimination.

(k) Adopt immediate and eﬀective measures in the ﬁelds of teaching, edu-
    cation, culture and information, with a view to combating prejudices
    which lead to racial discrimination against the Crimean Tatar and
    Ukrainian communities in Crimea.
(l) Pay Ukraine ﬁnancial compensation, in its own right and as
    parens patriae for its citizens, for the harm Ukraine has suﬀered as a
    result of Russia’s violations of the CERD, including the harm suﬀered
    by victims as a result of the Russian Federation’s violations of CERD

                                                                           19

             application of the icsft and cerd (judgment)                      574

         Articles 2, 4, 5, 6 and 7, with such compensation to be quantiﬁed in a
         separate phase of these proceedings.”

  20. In the preliminary objections, the following submissions were presented
on behalf of the Government of the Russian Federation:
       “In view of the foregoing, the Russian Federation requests the Court to
     adjudge and declare that it lacks jurisdiction over the claims brought against
     the Russian Federation by Ukraine by its Application of 16 January 2017
     and/or that Ukraine’s claims are inadmissible.”

   21. In the written statement of its observations and submissions on the pre-
liminary objections, the following submissions were presented on behalf of the
Government of Ukraine:
       “For the reasons set out in this Written Statement, Ukraine respectfully
     requests that the Court:
     (a) Dismiss the Preliminary Objections submitted by the Russian Federa-
         tion in its submission dated 12 September 2018;
     (b) Adjudge and declare that it has jurisdiction to hear the claims in the
         Application submitted by Ukraine, dated 16 January 2017 and that
         such claims are admissible; and
     (c) Proceed to hear those claims on the merits.”
  22. At the oral proceedings on the preliminary objections, the following sub-
missions were presented by the Parties:
On behalf of the Government of the Russian Federation,
at the hearing of 6 June 2019:
        “Having regard to the arguments set out in the preliminary objections of
     the Russian Federation and during the oral proceedings, the Russian Feder-
     ation requests the Court to adjudge and declare that it lacks jurisdiction over
     the claims brought against the Russian Federation by Ukraine by its Appli-
     cation of 16 January 2017 and/or that Ukraine’s claims are inadmissible.”
On behalf of the Government of Ukraine,
at the hearing of 7 June 2019:
       “Ukraine respectfully requests that the Court:
     (a) Dismiss the preliminary objections submitted by the Russian Federa-
         tion in its submission dated 12 September 2018;
     (b) Adjudge and declare that it has jurisdiction to hear the claims in the
         Application submitted by Ukraine, dated 16 January 2017, that such
         claims are admissible, and proceed to hear those claims on the merits; or
     (c) In the alternative, to adjudge and declare, in accordance with the pro-
         visions of Article 79, paragraph 9, of the Rules of Court that the objec-
         tions submitted by the Russian Federation do not have an exclusively
         preliminary character.”

                                          *
                                      *       *

                                                                                20

            application of the icsft and cerd (judgment)               575

                            I. Introduction

                    A. Subject-Matter of the Dispute
   23. The present proceedings were instituted by Ukraine following the
events which occurred in eastern Ukraine and in Crimea from the spring
of 2014, on which the Parties have diﬀerent views. However, the case
before the Court is limited in scope. With regard to the events in eastern
Ukraine, the Applicant has brought proceedings only under the ICSFT.
With regard to the situation in Crimea, Ukraine’s claims are based solely
upon CERD.
   24. Article 40, paragraph 1, of the Statute and Article 38, paragraph 1,
of the Rules of Court require an applicant to indicate the “subject of the
dispute” in its application. Furthermore, the Rules require that the appli-
cation “specify the precise nature of the claim, together with a succinct
statement of the facts and grounds on which the claim is based” (Arti-
cle 38, paragraph 2, of the Rules) and that the memorial include a state-
ment of the “relevant facts” (Article 49, paragraph 1, of the Rules).
However, it is for the Court itself to determine on an objective basis the
subject-matter of the dispute between the parties, by isolating the real
issue in the case and identifying the object of the claim. In doing so, the
Court examines the application as well as the written and oral pleadings
of the parties, while giving particular attention to the formulation of the
dispute chosen by the applicant. It takes account of the facts that the
applicant presents as the basis for its claim. The matter is one of sub-
stance, not of form (Immunities and Criminal Proceedings (Equato-
rial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports
2018 (I), pp. 308-309, para. 48).
   25. The Court observes that the Parties have expressed divergent views
as to the subject-matter of the dispute brought by Ukraine before it.

                                   * *
   26. According to the Applicant, its claims under the ICSFT concern
the alleged violations by the Russian Federation of its obligations to take
measures and to co-operate under Articles 8, 9, 10, 12 and 18 of the
ICSFT in the prevention and suppression of terrorism ﬁnancing oﬀences,
as deﬁned in Article 2 of the Convention. In this regard, Ukraine con-
tends that the Russian Federation has failed to take all practicable mea-
sures to prevent and counter preparations in its territory for the
commission of terrorism ﬁnancing oﬀences in the context of the events
which occurred in eastern Ukraine starting from the spring of 2014 and to
repress them. In its Application, Ukraine also claimed that the Respon-
dent supplied funds to groups that engage in acts of terrorism, but has
not put forward the same claim either in its Memorial or in the proceed-
ings on preliminary objections. The Applicant indeed stated that “[its]
claim is not that Russia has violated Article 2 of the ICSFT”, but rather

                                                                        21

            application of the icsft and cerd (judgment)               576

“that Russia has violated ICSFT Article 18 and other related cooperation
obligations”.

   The Applicant submits that its claims on the basis of CERD concern
alleged violations by the Russian Federation of its obligations under Arti-
cles 2, 4, 5, 6 and 7 of CERD. In this regard, Ukraine maintains that the
Russian Federation engaged in a campaign directed at depriving the
Crimean Tatars and ethnic Ukrainians in Crimea of their political, civil,
economic, social and cultural rights and pursued a policy and practice of
racial discrimination against those communities.

   27. For its part, the Russian Federation considers that the dispute sub-
mitted by Ukraine to the Court in fact concerns matters which are uncon-
nected to the two conventions relied on by the Applicant. It asserts that
the Parties’ rights and obligations under the ICSFT cannot be invoked by
Ukraine, since the acts referred to by the Applicant do not constitute
oﬀences within the meaning of Article 2 of the Convention. The Russian
Federation further asserts that the facts relied on and evidence submitted
by the Applicant do not substantiate its claim that funds were provided
or collected by various actors in the Russian Federation with the inten-
tion or knowledge that they were to be used to carry out acts of terrorism
in eastern Ukraine. The Respondent also contends that the dispute does
not concern its obligations under CERD and contests allegations that it
is subjecting Crimean Tatar and Ukrainian communities in Crimea to a
systematic campaign of racial discrimination. The Russian Federation
argues that, under cover of allegations relating to violations of the ICSFT
and CERD, Ukraine is seeking to bring before the Court disputes con-
cerning alleged violations of “diﬀerent rules of international law”. In
particular, the Respondent contends that Ukraine is seeking to seise
the Court of disputes over the Russian Federation’s alleged “overt
aggression” in eastern Ukraine and over the status of Crimea.

                                   * *
   28. As the Court has observed, applications that are submitted to it
often present a particular dispute that arises in the context of a broader
disagreement between the parties (Certain Iranian Assets (Islamic Repub-
lic of Iran v. United States of America), Preliminary Objections, Judgment,
I.C.J. Reports 2019, p. 23, para. 36; Obligation to Negotiate Access to the
Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment,
I.C.J. Reports 2015 (II), p. 604, para. 32). The fact that a dispute before
the Court forms part of a complex situation that includes various mat-
ters, however important, over which the States concerned hold opposite
views, cannot lead the Court to decline to resolve that dispute, provided
that the parties have recognized its jurisdiction to do so and the condi-
tions for the exercise of its jurisdiction are otherwise met.

                                                                        22

            application of the icsft and cerd (judgment)                577

   29. In the present case, the Court notes that Ukraine is not requesting
that it rule on issues concerning the Russian Federation’s purported
“aggression” or its alleged “unlawful occupation” of Ukrainian territory.
Nor is the Applicant seeking a pronouncement from the Court on the
status of Crimea or on any violations of rules of international law other
than those contained in the ICSFT and CERD. These matters therefore
do not constitute the subject-matter of the dispute before the Court.

   30. The Court observes that Ukraine requests the Court to adjudge
and declare that the Russian Federation has violated a number of provi-
sions of the ICSFT and CERD, that it bears international responsibility
for those violations, and that it is required to cease such violations and
make reparation for the consequences thereof.
   31. The Court considers that it follows from the opposing views
expressed by the Parties in the present case that the dispute consists of
two aspects. First, the Parties diﬀer as to whether any rights and obliga-
tions of the Parties under the ICSFT with regard to the prevention and
suppression of the ﬁnancing of terrorism were engaged in the context of
events which occurred in eastern Ukraine starting in the spring of 2014,
and whether terrorism ﬁnancing oﬀences, within the meaning of Article 2,
paragraph 1, of the ICSFT, were committed. As a result of these diﬀer-
ences of views, the Parties draw opposite conclusions as to the alleged
breaches by the Russian Federation of its obligations under Articles 8, 9,
10, 12 and 18 of the ICSFT and as to its ensuing international responsi-
bility. Secondly, the Parties disagree as to whether the decisions or mea-
sures allegedly taken by the Russian Federation against the Crimean
Tatar and Ukrainian communities in Crimea constitute acts of racial dis-
crimination and whether the Russian Federation bears responsibility in
that regard for the violation of its obligations under Articles 2, 4, 5, 6
and 7 of CERD.

   32. In view of the foregoing, the Court concludes that the subject-
matter of the dispute, in so far as its ﬁrst aspect is concerned, is whether
the Russian Federation had the obligation, under the ICSFT, to take
measures and to co-operate in the prevention and suppression of the alleged
ﬁnancing of terrorism in the context of events in eastern Ukraine and, if
so, whether the Russian Federation breached such an obligation. The
subject-matter of the dispute, in so far as its second aspect is concerned,
is whether the Russian Federation breached its obligations under CERD
through discriminatory measures allegedly taken against the Crimean
Tatar and Ukrainian communities in Crimea.

               B. Bases of Jurisdiction Invoked by Ukraine
  33. The Court recalls that its jurisdiction is based on the consent of the
parties and is conﬁned to the extent accepted by them (Immunities and

                                                                         23

            application of the icsft and cerd (judgment)                578

Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objec-
tions, Judgment, I.C.J. Reports 2018 (I), p. 307, para. 42).
   34. To establish the Court’s jurisdiction in the present case, Ukraine
invokes Article 24, paragraph 1, of the ICSFT and Article 22 of CERD
(see paragraph 2 above). The ﬁrst of these provisions reads as follows:

       “Any dispute between two or more States Parties concerning the
    interpretation or application of this Convention which cannot be set-
    tled through negotiation within a reasonable time shall, at the request
    of one of them, be submitted to arbitration. If, within six months from
    the date of the request for arbitration, the parties are unable to agree
    on the organization of the arbitration, any one of those parties may
    refer the dispute to the International Court of Justice, by application,
    in conformity with the Statute of the Court.”

Article 22 of CERD provides that:
       “Any dispute between two or more States Parties with respect to
    the interpretation or application of this Convention, which is not set-
    tled by negotiation or by the procedures expressly provided for in this
    Convention, shall, at the request of any of the parties to the dispute,
    be referred to the International Court of Justice for decision, unless
    the disputants agree to another mode of settlement.”

   35. Ukraine and the Russian Federation are parties to the ICSFT,
which entered into force for them on 5 January 2003 and 27 December
2002 respectively. Neither of them entered any reservations to the
ICSFT.
   Ukraine and the Russian Federation are also parties to CERD. The
Convention entered into force for Ukraine on 6 April 1969. The instru-
ment of ratiﬁcation, deposited by Ukraine, on 7 March 1969, contained a
reservation to Article 22 of the Convention; on 20 April 1989, the depos-
itary received notiﬁcation that this reservation had been withdrawn. The
Russian Federation is a party to the Convention as the State continuing
the international legal personality of the Union of Soviet Socialist Repub-
lics, for which CERD entered into force on 6 March 1969. The instru-
ment of ratiﬁcation, deposited by the Union of Soviet Socialist Republics
on 4 February 1969, contained a reservation to Article 22 of the Conven-
tion; on 8 March 1989, the depositary received notiﬁcation that this res-
ervation had been withdrawn.
   36. The Russian Federation contests the Court’s jurisdiction to enter-
tain the dispute on the basis of each of the two instruments invoked by
Ukraine. In this regard, it argues that the dispute is not one which the
Court has jurisdiction ratione materiae to entertain, either under Arti-
cle 24, paragraph 1, of the ICSFT or under Article 22 of CERD, and that
the procedural preconditions set out in these provisions were not met by

                                                                         24

            application of the icsft and cerd (judgment)                 579

Ukraine before it seised the Court. The Respondent further contends that
Ukraine’s claims under CERD are inadmissible, since, in its view, avail-
able local remedies had not been exhausted before Ukraine ﬁled its Appli-
cation with the Court.

   37. The Court will address the preliminary objection raised by the
Russian Federation to its jurisdiction on the basis of the ICSFT in Part II
of the Judgment. It will then address, in Part III, the preliminary objec-
tions to its jurisdiction on the basis of CERD and to the admissibility of
the Application in so far as it concerns the claims made by Ukraine under
CERD.

       II. The International Convention for the Suppression
                   of the Financing of Terrorism

  38. The Court will now consider whether it has jurisdiction ratione
materiae under Article 24, paragraph 1, of the ICSFT and whether the
procedural preconditions set forth in that provision have been met.

           A. Jurisdiction Ratione Materiae under the ICSFT
  39. The Court recalls that its jurisdiction ratione materiae over the dis-
pute under Article 24, paragraph 1, of the ICSFT covers “[a]ny dispute
between two or more States Parties concerning the interpretation or
application of this Convention”.

                                    * *
   40. The Russian Federation contests the Court’s jurisdiction ratione
materiae with regard to all aspects of the dispute submitted by Ukraine
to the Court under the ICSFT. In the Russian Federation’s opinion,
the fact that the Parties entertain diﬀerent views on the interpretation of a
treaty containing a compromissory clause is not suﬃcient to establish the
Court’s jurisdiction ratione materiae. According to the Respondent,
the Court must interpret the key provisions of the relevant treaty and
“[s]atisfy itself that the facts pleaded and the evidence relied on by the
applicant State plausibly support the asserted characterisation of its
claims” as claims under that treaty. The Russian Federation does not
request from the Court a complete analysis of the facts at the stage of a
decision on preliminary objections, but contends that some consideration
must be given to the facts.
   41. The Russian Federation recalls that, in its Order of 19 April 2017
on the Request for the indication of provisional measures in the present
case, the Court aﬃrmed that Ukraine’s claimed rights under the ICSFT
were not plausible (I.C.J. Reports 2017, pp. 131-132, para. 75). In consid-
ering the plausibility of Ukraine’s case at the present stage, the Rus-

                                                                          25

            application of the icsft and cerd (judgment)                 580

sian Federation maintains that the Court must rely on its earlier
assessment. According to the Respondent, Ukraine has not put forward
any new evidence related to elements of intention, knowledge and pur-
pose concerning the funding of acts of terrorism which would allow the
Court to depart from the ﬁndings made at the stage of its decision on
provisional measures.
   42. More speciﬁcally, the Respondent maintains that no material evi-
dence has been presented by Ukraine demonstrating that the Rus-
sian Federation provided weaponry to any entity “with the requisite
speciﬁc intent or knowledge” under Article 2, paragraph 1, of the ICSFT
that such weaponry would be used to shoot down ﬂight MH17. With
regard to four speciﬁc incidents of alleged indiscriminate shelling, the
Russian Federation submits that no new evidence has been presented by
Ukraine since the stage of provisional measures. In the Respondent’s
view, Ukraine fails to present any credible evidence that the perpetrators
of the shelling acted with “the requisite speciﬁc intent to kill or seriously
harm civilians” and that the locations were shelled “for the requisite spe-
ciﬁc purpose of intimidating the population or to compel a government to
do or to abstain from doing any act”. Moreover, even if a plausible case
of terrorism could be demonstrated with regard to those incidents, the
Russian Federation argues that Ukraine would also be implicated in the
commission of indiscriminate shelling during the same conﬂict. Concern-
ing the further allegation of bombing that took place in Kharkiv, the
Respondent maintains that no reliable evidence was submitted to show
that the incident was perpetrated with the Russian Federation’s support.
The Russian Federation also maintains that, in diplomatic correspon-
dence, it conﬁrmed its interest in receiving from Ukraine “the concrete
materials containing evidential data” relating to that incident, which
Ukraine failed to provide. Furthermore, with regard to other alleged acts
of extrajudicial killing, torture and ill-treatment of civilians, the Respon-
dent contends that the evidence does not demonstrate that they were
“plausible ‘terrorist’ acts within the meaning of Article 2 (1) (b) of the
ICSFT”. According to the Russian Federation, such acts have in any case
been committed by all parties to the armed conﬂict.

   43. The Russian Federation is of the view that the ICSFT is a “law
enforcement instrument” which does not cover issues of State responsibil-
ity for ﬁnancing acts of terrorism. It bases its interpretation on a textual
analysis of the Convention, as well as on considerations pertaining to the
structure of the ICSFT, the preparatory work related to the drafting of
speciﬁc articles, provisions of other conventions concerned with terrorism
and subsequent State practice. The Russian Federation asserts that mul-
tiple attempts were made by delegations during the drafting of the ICSFT
to bring public oﬃcials and State ﬁnancing within the scope of the Con-
vention, but all attempts failed.

                                                                          26

            application of the icsft and cerd (judgment)                581

   44. The Russian Federation maintains that the Court must at this
stage fully interpret the relevant provisions of the ICSFT, especially Arti-
cle 2, paragraph 1. The Russian Federation submits that the term “any
person” in Article 2, paragraph 1, has to be interpreted as meaning “pri-
vate persons only” and does not cover State oﬃcials. It points out that
Ukraine is asking the Court to ﬁnd that the Russian Federation has not
prevented its own oﬃcials from ﬁnancing terrorism. In the Respondent’s
view, while State responsibility is excluded from the scope of the ICSFT,
a ﬁnding that State oﬃcials are also covered would mean declaring that
the Russian Federation is directly responsible for ﬁnancing terrorism in
accordance with Article 4 of the Articles on Responsibility of States for
Internationally Wrongful Acts adopted by the International Law Com-
mission.

   45. The Russian Federation further argues that, in order to determine
the scope of the ICSFT, the mental elements of the oﬀence of terrorism
ﬁnancing must be deﬁned. The terms “intention” and “knowledge” in
Article 2, paragraph 1, of the ICSFT must therefore be interpreted. The
Russian Federation maintains that these two terms are not synonymous.
It is of the view that “intention” must be understood as “a speciﬁc intent
requirement”. Following the interpretation given by the Respondent,
“knowledge” refers to actual knowledge that the funds will be used to
commit acts of terrorism, and not merely that they may be used to do so.
According to the Russian Federation, recklessness is insuﬃcient to estab-
lish knowledge. The Russian Federation accepts that the requirement of
knowledge can be satisﬁed by the ﬁnancing of groups that are notorious
terrorist organizations. However, the Respondent argues that it is not suf-
ﬁcient for Ukraine to so characterize any entity unilaterally, particularly
in the absence of any indication to that eﬀect by an international organi-
zation.

   46. The Russian Federation notes that an act constitutes an oﬀence
within the meaning of Article 2, paragraph 1 (a), of the ICSFT when it
is “an oﬀence within the scope of and as deﬁned in one of the treaties
listed in the annex” to the Convention. In this regard, the Respondent
submits that in order to constitute an oﬀence deﬁned in Article 1, para-
graph 1 (b), of the Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, done in Montreal on 23 September
1971 (hereinafter the “Montreal Convention”), relied on by Ukraine with
regard to the downing of ﬂight MH17, there must be an intent to destroy
or cause damage to a civilian aircraft in service. The Russian Federation
also provides an interpretation of Article 2, paragraph 1 (b), of the
ICSFT, under which acts of terrorism need to be performed with a spe-
ciﬁc intention and with the purpose of intimidating a population or com-
pelling a government. According to the Respondent, intention under the

                                                                         27

            application of the icsft and cerd (judgment)                582

same subparagraph refers to a “subjective aim, desire or plan” and
“implicitly exclud[es] knowledge-based standards”.

                                     *
   47. Ukraine contends that the Russian Federation’s preliminary objec-
tions “improperly ask the Court to address the merits of the Parties’ dis-
pute”. In the Applicant’s view, the Court should not provide a deﬁnitive
interpretation of Article 2 of the ICSFT at the present stage of the pro-
ceedings, nor should it determine the plausibility of the alleged facts
before it, but must only decide whether the dispute is one that concerns
the interpretation or application of the ICSFT. Ukraine considers that
the Russian Federation’s contention that the Court should examine the
plausibility of the case is based “on a ﬂawed analogy between preliminary
objections and provisional measures”. It argues that the Court, in deter-
mining whether it has jurisdiction, must provisionally assume that the
facts alleged by Ukraine are true; it must therefore accept them pro tem-
pore.
   48. Despite its view that facts should not be assessed in terms of plau-
sibility at the present stage of the proceedings, Ukraine contends that it
has “more than plausibly” demonstrated that acts of terrorism within the
meaning of the ICSFT have been committed by the Russian Federation’s
“proxies” on Ukrainian territory. The Applicant argues that its Memorial
contains an “extraordinary level of evidence”.
   49. Ukraine maintains that a number of events documented by the evi-
dence presented by it establish oﬀences covered by Article 2, paragraph 1,
of the ICSFT. It asserts that Russian oﬃcials supplied the missile launch-
ing system that was used to shoot down ﬂight MH17. Ukraine argues
that this launching system was “knowingly provided” to a terrorist
organization, and that the requirement of knowledge under Article 2,
paragraph 1, was amply met. Ukraine contends that the shooting down
of the aircraft constituted a violation of the Montreal Convention and
that the supply of the launching system was an oﬀence under Article 2, para-
graph 1 (a), of the ICSFT. Moreover, Ukraine argues that its Memorial
shows that bombing attacks by the Russian Federation’s “proxies” con-
stituted oﬀences under the International Convention for the Suppression
of Terrorist Bombings and that the alleged knowledge of ﬁnancing the
attacks, including through the supply of bombs, was covered by Article 2,
paragraph 1 (a), of the ICSFT.

   50. With regard to other incidents, Ukraine argues that the evidence
presented demonstrates that certain events of indiscriminate shelling such
as those that occurred in Volnovakha and Mariupol constituted acts of
terrorism under Article 2, paragraph 1 (b), of the ICSFT because these

                                                                         28

            application of the icsft and cerd (judgment)                583

acts were performed by the Russian Federation’s “proxies” with the
intent to kill civilians and for the purpose of intimidating a population or
compelling a government. Concerning further allegations of acts of tor-
ture and killings, Ukraine submits that those acts were performed with
the objective of terrorizing a civilian population.

   51. Ukraine contends that the Russian Federation’s arguments with
regard to the interpretation of the diﬀerent elements of Article 2 of the
ICSFT belong to the merits, and that they do not have an impact on the
Court’s jurisdiction. The Applicant argues that, if the Court were now to
proceed to such interpretation, it would “prematurely determine some
elements of this dispute on the merits”. Ukraine submits that such issues
of interpretation are “inseparable from the factual questions” and in any
event do not possess an exclusively preliminary character.

   52. If however the Court were to ﬁnd it necessary to give an interpreta-
tion of Article 2 of the ICSFT at the present stage of the proceedings,
Ukraine argues that the Russian Federation’s restrictive reading should
be dismissed. The Applicant submits that Article 2, paragraph 1 (a)
and (b), of the ICSFT gives a broad and comprehensive deﬁnition of
acts of terrorism. It also maintains that the notion of “‘funds’ under Arti-
cle 1 of the ICSFT is a broad term covering all property, including weap-
ons”.
   53. In Ukraine’s view, the term “any person” in Article 2, paragraph 1,
includes both private individuals and public or government oﬃcials.
Relying on a textual interpretation of the treaty provisions, read in their
context, Ukraine contends that Article 18 imposes on States an obligation
to prevent terrorism ﬁnancing oﬀences and that, according to Article 2,
such oﬀences may be committed by “‘any person’, without qualiﬁcation”.
It maintains that concluding otherwise would be “paradoxical” as the
ICSFT would bind a State to prevent the ﬁnancing of acts of terrorism,
but would not prohibit ﬁnancing by oﬃcials of the same State. Ukraine
also argues that the Russian Federation’s interpretation undermines the
object and purpose of the ICSFT and that its own interpretation is, on
the contrary, supported by the preamble, the context and the preparatory
work of the Convention. The Applicant argues that the Russian Federa-
tion is conﬂating the States’ duty under Article 18 of the ICSFT to pre-
vent terrorism ﬁnancing with the notion of State responsibility for
committing terrorism ﬁnancing.

  54. Ukraine is of the view that providing funds to groups with the
knowledge that such groups carry out acts of terrorism is suﬃcient to
fulﬁl the requirement of knowledge under Article 2, paragraph 1, of the
ICSFT, and that certainty that the funds will be used to commit speciﬁc
acts is not required. Ukraine contends that the groups in question do not
need to be designated as terrorist by, for instance, the Security Council, a

                                                                         29

             application of the icsft and cerd (judgment)                 584

competent organization or a considerable number of States, for a ﬁnanc-
ing entity to have knowledge of the terrorist groups’ activities.

   55. Ukraine also addresses the terrorism oﬀences referred to in Arti-
cle 2, paragraph 1, of the ICSFT. As to the oﬀence deﬁned in Article 1,
paragraph 1 (b), of the Montreal Convention, it holds that “the civilian
or military status of the aircraft is a jurisdictional element of the oﬀence,
not subject to an intent requirement”. The Applicant also maintains that
the phrase “act intended to cause death or serious bodily injury” in Arti-
cle 2, paragraph 1 (b), of the ICSFT, does not refer to a speciﬁc mental
element; it is “an objective statement, referring to the ordinary conse-
quences of an act”. It points out that this provision further refers to the
purpose of an act of terrorism to intimidate a population or compel a
government. Ukraine states that in many cases the speciﬁc agenda of the
perpetrators of acts of terrorism will be unknown, but that in such cases
the requisite purpose can be inferred, as the provision suggests, from the
“nature or context” of the act.

                                     * *
   56. The Court will now determine whether the dispute between the
Parties is one that concerns the interpretation or the application of the
ICSFT and, therefore, whether it has jurisdiction ratione materiae under
Article 24, paragraph 1, of this Convention.
   57. As the Court stated in the case concerning Oil Platforms (Islamic
Republic of Iran v. United States of America) (Preliminary Objection,
Judgment, I.C.J. Reports 1996 (II), pp. 809-810, para. 16) and, more
recently, in the case concerning Certain Iranian Assets (Islamic Republic
of Iran v. United States of America) (Preliminary Objections, Judgment,
I.C.J. Reports 2019, p. 23, para. 36), in order to determine the Court’s
jurisdiction ratione materiae under a compromissory clause concerning
disputes relating to the interpretation or application of a treaty, it is nec-
essary to ascertain whether the acts of which the applicant complains “fall
within the provisions” of the treaty containing the clause. This may
require the interpretation of the provisions that deﬁne the scope of the
treaty. In the present case, the ICSFT has to be interpreted according to
the rules contained in Articles 31 to 33 of the Vienna Convention on
the Law of Treaties of 23 May 1969 (hereinafter the “Vienna Conven-
tion”), to which both Ukraine and the Russian Federation are parties as
of 1986.
   58. At the present stage of the proceedings, an examination by the
Court of the alleged wrongful acts or of the plausibility of the claims is
not generally warranted. The Court’s task, as reﬂected in Article 79 of the
Rules of Court of 14 April 1978 as amended on 1 February 2001, is to
consider the questions of law and fact that are relevant to the objection to
its jurisdiction.

                                                                           30

             application of the icsft and cerd (judgment)                  585

   59. The ICSFT imposes obligations on States parties with respect to
oﬀences committed by a person when “that person by any means, directly
or indirectly, unlawfully and wilfully, provides or collects funds with the
intention that they should be used or in the knowledge that they are to be
used, in full or in part, in order to carry out” acts of terrorism as described
in Article 2, paragraph 1 (a) and (b). As stated in the preamble, the pur-
pose of the Convention is to adopt “eﬀective measures for the prevention
of the ﬁnancing of terrorism, as well as for its suppression through the
prosecution and punishment of its perpetrators”. The ICSFT addresses
oﬀences committed by individuals. In particular, Article 4 requires each
State party to the Convention to establish the oﬀences set forth in Arti-
cle 2 as criminal oﬀences under its domestic law and to make those
oﬀences punishable by appropriate penalties. The ﬁnancing by a State of
acts of terrorism is not addressed by the ICSFT. It lies outside the scope
of the Convention. This is conﬁrmed by the preparatory work of the Con-
vention, which indicates that proposals to include ﬁnancing by States of
acts of terrorism were put forward but were not adopted (United Nations,
docs. A/C.6/54/SR.32-35 and 37). As was recalled in the report of the
Ad Hoc Committee established by the General Assembly which contrib-
uted to the drafting of the ICSFT, some delegations even proposed to
exclude all matters of State responsibility from the scope of the Conven-
tion (United Nations doc. A/54/37). However, it has never been contested
that if a State commits a breach of its obligations under the ICSFT, its
responsibility would be engaged.

   60. The conclusion that the ﬁnancing by a State of acts of terrorism
lies outside the scope of the ICSFT does not mean that it is lawful under
international law. The Court recalls that, in resolution 1373 (2001), the
United Nations Security Council, acting under Chapter VII of the Char-
ter, decided that all States shall “[r]efrain from providing any form of
support, active or passive, to entities or persons involved in terrorist
acts”.
   61. When deﬁning the perpetrators of oﬀences of ﬁnancing acts of ter-
rorism, Article 2 of the ICSFT refers to “any person”. According to its
ordinary meaning, this term covers individuals comprehensively. The
Convention contains no exclusion of any category of persons. It applies
both to persons who are acting in a private capacity and to those who are
State agents. As the Court noted (see paragraph 59 above), State ﬁnanc-
ing of acts of terrorism is outside the scope of the ICSFT; therefore, the
commission by a State oﬃcial of an oﬀence described in Article 2 does
not in itself engage the responsibility of the State concerned under the
Convention. However, all States parties to the ICSFT are under an obli-
gation to take appropriate measures and to co-operate in the prevention
and suppression of oﬀences of ﬁnancing acts of terrorism committed by
whichever person. Should a State breach such an obligation, its responsi-
bility under the Convention would arise.

                                                                            31

            application of the icsft and cerd (judgment)               586

   62. As the title of the ICSFT indicates, the Convention speciﬁcally
concerns the support given to acts of terrorism by ﬁnancing them. Arti-
cle 2, paragraph 1, refers to the provision or collection of “funds”. This
term is deﬁned in Article 1, paragraph 1, as meaning:
    “assets of every kind, whether tangible or intangible, movable or
    immovable, however acquired, and legal documents or instruments
    in any form, including electronic or digital, evidencing title to, or
    interest in, such assets, including, but not limited to, bank credits,
    travellers cheques, bank cheques, money orders, shares, securities,
    bonds, drafts, letters of credit”.

This deﬁnition covers many kinds of ﬁnancial instruments and includes
also other assets. Since no speciﬁc objection to the Court’s jurisdiction
was made by the Russian Federation with regard to the scope of the term
“funds” and in particular to the reference in Ukraine’s submissions to the
provision of weapons, this issue relating to the scope of the ICSFT need
not be addressed at the present stage of the proceedings. However, the
interpretation of the deﬁnition of “funds” could be relevant, as appropri-
ate, at the stage of an examination of the merits.
   63. An element of an oﬀence under Article 2, paragraph 1, of the
ICSFT is that the person concerned has provided funds “with the inten-
tion that they should be used or in the knowledge that they are to be
used” to commit an act of terrorism. The existence of the requisite inten-
tion or knowledge raises complex issues of law and especially of fact that
divide the Parties and are properly a matter for the merits. The same may
be said of the question whether a speciﬁc act falls within the meaning of
Article 2, paragraph 1 (a) or (b). This question is largely of a factual
nature and is properly a matter for the merits of the case. Within the
framework of the ICSFT, questions concerning the existence of the requi-
site mental elements do not aﬀect the scope of the Convention and there-
fore are not relevant to the Court’s jurisdiction ratione materiae. Should
the case proceed to the examination of the merits, those questions will be
decided at that stage.
   64. In light of the above, the Court concludes that the objection raised
by the Russian Federation to its jurisdiction ratione materiae under the
ICSFT cannot be upheld.

       B. Procedural Preconditions under Article 24 of the ICSFT

   65. The Court needs now to examine whether the procedural precondi-
tions set forth in Article 24, paragraph 1, of the ICSFT (see paragraph 34
above) have been fulﬁlled. In this context, the Court will consider whether
the dispute between the Parties could not be settled through negotiation
within a reasonable time and, if so, whether the Parties were unable to

                                                                        32

            application of the icsft and cerd (judgment)                 587

agree on the organization of an arbitration within six months from the
date of the request for arbitration.

1. Whether the dispute between the Parties could not be settled through
   negotiation
   66. The Russian Federation notes that, under Article 24, paragraph 1,
of the ICSFT, the Parties must pursue negotiations over their dispute and
that, in the event of failure, they shall try to agree on a settlement by way
of arbitration. It argues that the Court may be seised only if genuine
attempts to pursue these procedures have been made and both failed.

   67. The Russian Federation is of the view that it is not suﬃcient for
the Parties simply to enter into negotiations; these must be meaningful
and pursued “as far as possible”. The Respondent argues that “mere pro-
tests and disputations” are not suﬃcient to fulﬁl the precondition relating
to negotiation. It maintains that Ukraine did not attempt to negotiate in
good faith. The Russian Federation considers that Ukraine only engaged
in negotiations “with a view to bring this dispute before this Court” and
not with the objective of settling the matters in contention between the
Parties. It states that during the negotiations Ukraine did not take into
account the Russian Federation’s interests. According to the Respondent,
Ukraine also did not contemplate any modiﬁcation to its position and
refused to substantiate some of its allegations, notwithstanding requests
to do so made by the Russian Federation. The Respondent points out
that negotiations took place in Minsk at its suggestion and that it showed
its willingness “to contemplate modiﬁcations of its own position”. Fur-
thermore, the Russian Federation contends that, in its Notes Verbales,
the Applicant mainly did not address the ICSFT, but rather raised allega-
tions of acts of aggression and of intervention in the internal aﬀairs of
Ukraine.

                                     *
   68. Ukraine points out that the Parties negotiated extensively for two
years, even though the dispute ultimately could not be resolved by
negotiations. It mentions that it sent more than twenty Notes Verbales to
the Russian Federation and that the Parties met in four rounds of in-person
negotiations. Ukraine maintains that it has genuinely attempted to
negotiate with the Russian Federation and to discuss in good faith all
the issues separating them under the ICSFT. Ukraine speciﬁes that the
negotiations did not concern acts of aggression and intervention. In the
Applicant’s opinion, there was no genuine attempt by the Russian Fed-
eration to settle the dispute as it did not meaningfully engage with the
claims raised by Ukraine and refused to take account of the latter’s posi-
tions. The Applicant is of the view that, when negotiations have been
conducted “as far as possible with a view to settling the dispute” but have

                                                                          33

            application of the icsft and cerd (judgment)                  588

failed, become futile or reached a deadlock, the precondition of holding
negotiations is fulﬁlled. Ukraine submits that Article 24, paragraph 1, of
the ICSFT only requires negotiations to be conducted for a “reasonable
time” and not to the point of futility. Ukraine contends that it would not
have been reasonable to require further negotiations between the Parties
for an extended period of time.

                                    * *
   69. The Court considers that Article 24, paragraph 1, of the ICSFT
requires, as a ﬁrst procedural precondition to the Court’s jurisdiction,
that a State makes a genuine attempt to settle through negotiation the
dispute in question with the other State concerned. According to the same
provision, the precondition of negotiation is met when the dispute “can-
not be settled through negotiation within a reasonable time”. As was
observed in the case concerning the Application of the International
Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), “the subject-matter of the negotiations
must relate to the subject-matter of the dispute which, in turn, must con-
cern the substantive obligations contained in the treaty in question” (Pre-
liminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 133, para. 161).
   70. The Court recalls that, on 28 July 2014, Ukraine wrote a Note Ver-
bale to the Russian Federation, stating that

    “under the provisions of the 1999 International Convention for the
    Suppression of the Financing of Terrorism, the Russian Party is under
    an obligation to take such measures, which may be necessary under
    its domestic law to investigate the facts contained in the information
    submitted by the Ukrainian Party, as well as to prosecute persons
    involved in ﬁnancing of terrorism”,
and proposing “to conduct negotiations on the issue of interpretation and
application of the [ICSFT]”. On 15 August 2014, the Russian Federation
informed Ukraine of its “readiness to conduct negotiations on the issue of
interpretation and application of the [ICSFT]”. While exchanges of Notes
and meetings between the Parties did not always focus on the interpreta-
tion or application of the ICSFT, negotiations over Ukraine’s claims
relating to this Convention were a substantial part. In particular, in a
Note Verbale of 24 September 2014 Ukraine contended that

    “the Russian Side illegally, directly and indirectly, intentionally trans-
    fers military equipment, provides the funds for terrorists training on
    its territory, gives them material support and send[s] them to the ter-
    ritory of Ukraine for participation in the terrorist activities of the
    DPR and the LPR, etc.”.

                                                                           34

            application of the icsft and cerd (judgment)                589

On 24 November 2014, the Russian Federation contested that the acts
alleged by Ukraine could constitute violations of the ICSFT, but accepted
that the agenda for bilateral consultations include the “international legal
basis for suppression of ﬁnancing of terrorism as applicable to the
Russian-Ukrainian relations”. After that Note, several others followed;
moreover, four meetings were held in Minsk, the last one on 17 March
2016. Little progress was made by the Parties during their negotiations.
The Court therefore concludes that the dispute could not be settled through
negotiation in what has to be regarded as a reasonable time and that the
ﬁrst precondition is accordingly met.

2. Whether the Parties were unable to agree on the organization of an
   arbitration
   71. The Russian Federation contends that Ukraine has also not satis-
ﬁed the precondition to submit the Parties’ dispute to arbitration. It
argues that Ukraine did not properly engage in negotiations with a view
to organize an arbitration. It points out that Ukraine insisted that an
ad hoc chamber of the Court should be constituted as the forum for arbi-
tration, and in the Russian Federation’s view, this suggestion was not
apposite because referral of the dispute to a chamber of the Court cannot
be regarded as a form of submission to arbitration.

   72. The Russian Federation also points out that, according to Arti-
cle 24, paragraph 1, of the ICSFT, a claim may be brought before the
Court only if the parties have been unable to agree on the organization of
an arbitration within six months from the date of the request by one of
them for arbitration. It considers that it is not suﬃcient “as a matter of
fact” that the six-month period has elapsed without reaching any agree-
ment on the organization of the arbitration. What is required, the Respon-
dent maintains, is a “genuine attempt” to reach an agreement. In the
Russian Federation’s view, Ukraine — by insisting on some core princi-
ples that would govern the arbitration and by not submitting any con-
crete suggestions for the text of an arbitration agreement while refusing
the Russian Federation’s proposals — did not genuinely attempt to orga-
nize the arbitration pursuant to Article 24 of the ICSFT.

   73. The Russian Federation maintains that Article 24, paragraph 1, of
the ICSFT requires the parties to negotiate with a view to “agree on the
organization of the arbitration” and that accordingly they must decide on
the composition of the tribunal, the law applicable, as well as on admin-
istrative matters. The Respondent argues that the Parties were in agree-
ment with regard to most issues concerning the organization of the
arbitration. It asserts that negotiations with regard to the arbitration had
not reached a deadlock. In the Russian Federation’s view, the procedural

                                                                         35

            application of the icsft and cerd (judgment)                 590

precondition to submit the Parties’ dispute to arbitration set forth in Arti-
cle 24 of the ICSFT has not been fulﬁlled.
                                     *
   74. Ukraine points out that it submitted to the Russian Federation a
Note Verbale dated 19 April 2016 which contained a direct request to
have recourse to arbitration with a view to settling their dispute. Con-
trary to the Russian Federation’s argument, Ukraine maintains that its
later suggestion to constitute an ad hoc chamber of the Court was only an
alternative option on which it did not insist.

   75. Ukraine argues that the Parties were unable to agree on the orga-
nization of the arbitration within the six-month period referred to in Arti-
cle 24, paragraph 1, of the ICSFT. It notes that the Russian Federation
responded to its request for arbitration more than two months after
receiving it and only oﬀered to meet to discuss the organization of the
arbitration a further month later. Ukraine maintains moreover that at the
ﬁrst meeting the Russian Federation did not address Ukraine’s views on
the organization of the arbitration. The Applicant asserts that, when
negotiations with respect to the organization of the arbitration were dis-
continued, the Parties had only agreed to discuss the details of the arbi-
tration further and to consider each other’s positions, and had not reached
any agreement on the actual organization of the arbitration. Ukraine sub-
mits that it genuinely attempted to reach an agreement on the organiza-
tion of the arbitration within the requisite period.

                                    * *
   76. The Court recalls that, nearly two years after the start of negotia-
tions between the Parties over the dispute, Ukraine sent on 19 April 2016
a Note Verbale in which it stated that those negotiations had “failed” and
that, “pursuant to Article 24, paragraph 1, of the Financing Terrorism
Convention, [it] request[ed] the Russian Federation to submit the dispute
to arbitration under terms to be agreed by mutual consent”. Negotiations
concerning the organization of the arbitration were subsequently held
until a period of six months expired. During these negotiations, Ukraine
also suggested to refer the dispute to a procedure other than arbitration,
namely the submission of the dispute to a chamber of the Court. In any
event, the Parties were unable to agree on the organization of the arbitra-
tion during the requisite period. The second precondition stated in Arti-
cle 24, paragraph 1, of the ICSFT must thus be regarded as fulﬁlled.

   77. The Court therefore considers that the procedural preconditions
set forth in Article 24, paragraph 1, of the ICSFT were met. The Court

                                                                          36

            application of the icsft and cerd (judgment)                 591

thus has jurisdiction to entertain the claims made pursuant to that provi-
sion.

     III. The International Convention on the Elimination of
                All Forms of Racial Discrimination

   78. The Court will now examine the Russian Federation’s preliminary
objections to the Court’s jurisdiction and the admissibility of Ukraine’s
claims under CERD. As stated above (see paragraph 36), the Rus-
sian Federation argues that the Court lacks jurisdiction ratione materiae
under CERD, and that the procedural preconditions to the Court’s juris-
diction set out in Article 22 of the Convention are not met; it also argues
that Ukraine’s Application with regard to claims under CERD is
inadmissible because local remedies had not been exhausted before the
dispute was referred to the Court. The Court will deal with each objection
in turn.

             A. Jurisdiction Ratione Materiae under CERD
   79. It is the Russian Federation’s position that the real issue in dispute
between the Parties does not concern racial discrimination but the status
of Crimea. The Russian Federation contends that the measures which
Ukraine characterizes as racial discrimination are not in breach of CERD,
since they are not based on any of the grounds set out in Article 1, para-
graph 1, of CERD. According to the Respondent, Ukraine’s claims of
racial discrimination consist in asserting that measures allegedly taken by
the Russian Federation in respect of members of certain ethnic communi-
ties were motivated by the opposition of these communities to the “pur-
ported annexation” of Crimea.
   80. According to the Russian Federation, Ukraine’s attempt to deﬁne
“ethnic groups” within the meaning of CERD on the basis of political
self-identiﬁcation and opinions is misconceived. The Russian Federation
argues that Ukraine’s deﬁnition of “ethnicity” is not in consonance either
with the ordinary meaning of CERD, or with the intention of its drafters,
and is also unsupported both by State practice, and by the decisions of
the Committee on the Elimination of Racial Discrimination (hereinafter
the “CERD Committee”). The Russian Federation does not contest, in
any event, that Crimean Tatars and ethnic Ukrainians in Crimea consti-
tute distinct ethnic groups protected by CERD.

  81. The Respondent argues that the claims that it discriminated
between citizens and non-citizens are beyond the scope of CERD, in so
far as they are incompatible with Article 1, paragraphs 2 and 3, of the

                                                                          37

            application of the icsft and cerd (judgment)                 592

Convention, which expressly excludes from its scope “distinctions, exclu-
sions, restrictions or preferences made by a State Party to this Conven-
tion between citizens and non-citizens”, and does not aﬀect “in any way
the legal provisions of States Parties concerning nationality, citizenship or
naturalization”.

  82. The Russian Federation further contends that a number of rights
invoked by Ukraine are not protected under CERD. According to the
Respondent, Ukraine’s argument that Article 5 of CERD includes a right
“to return to one’s country”, allegedly breached by Russian citizenship
laws, was only made to circumvent Article 1 of the Convention, since
such a right is not protected under CERD unless the person concerned is
subject to racial discrimination within the meaning of the Convention. On
this basis, the Russian Federation argues that the alleged imposition of
Russian citizenship in Crimea could not be a breach of CERD.

  83. In relation to the ban on the Mejlis of the Crimean Tatar People,
the Russian Federation contends that the political right of the Crimean
Tatars to retain their representative institutions is not protected under
Article 5, paragraphs (c) and (e), of CERD, as those provisions protect
only individual and not collective, political rights.
  84. The Respondent also states that the right to education and train-
ing, to which Article 5, paragraph (e) (v), of CERD refers, does not
guarantee an absolute right to be educated in one’s native language, since
this provision only aims to ensure the right of everyone to have access to
a national educational system, irrespective of ethnic origin.

   85. The Russian Federation contends that by claiming that Crimean
Tatars have been discriminated against because of their Muslim faith,
Ukraine misconstrues the scope of CERD, which does not include dis-
crimination based on religious grounds.

   86. According to the Russian Federation, a considerable part of the
alleged violations of CERD to which Ukraine refers is based on the
assumption that the application of Russian laws in Crimea amounts to
a breach of certain rules of international humanitarian law, which,
following Ukraine’s logic, would in turn entail a breach of CERD. The
Russian Federation contends that Ukraine is seeking to challenge
the application of Russian laws in Crimea, purportedly on the basis of
CERD, but actually by reference to certain rules of international human-
itarian law.

                                     *
  87. Ukraine argues that, while it is obliged to refer to the Russian Fed-
eration’s “intervention” in Crimea in describing the alleged campaign of

                                                                          38

            application of the icsft and cerd (judgment)               593

racial discrimination against the Crimean Tatar and Ukrainian communi-
ties in Crimea, neither the substance of Ukraine’s claims, nor the relief
requested, concern the status of Crimea.

   88. According to Ukraine, its claims under CERD fall squarely within
the deﬁnition of “racial discrimination” under Article 1, paragraph 1, of
the Convention. Ukraine alleges that the Russian Federation has imple-
mented a “policy of discrimination in political and civil aﬀairs” and a
“campaign of cultural erasure” against Crimean Tatars and ethnic Ukrai-
nians in Crimea. The Applicant claims that the Russian Federation has
impaired the civil and political rights of the Crimean Tatar and Ukrai-
nian communities in Crimea by a series of targeted murders and acts of
torture; forced disappearances and abductions; arbitrary searches and
detentions; the imposition of Russian citizenship on the residents of
Crimea; and the ban on the Mejlis. The Applicant also claims that the
Russian Federation has impaired the economic, social and cultural rights
of these communities, by imposing restrictions on Crimean Tatar and
Ukrainian media outlets; the degradation of their cultural heritage; the
suppression of culturally signiﬁcant gatherings of these communities; and
the suppression of minority rights relating to education, and in particular
restrictions placed on education in the Crimean Tatar and Ukrainian lan-
guages. It is the Applicant’s position that these measures were principally
aimed against the ethnic groups of Crimean Tatar and Ukrainian com-
munities in Crimea and had the “purpose and/or eﬀect” of disproportion-
ately aﬀecting these communities less favourably than other ethnic groups
in Crimea. Accordingly, Ukraine maintains that these measures amount
to racial discrimination within the meaning of Article 1, paragraph 1, of
CERD.

   89. Ukraine argues that its Memorial shows, “on an article-by-article
basis”, that the Russian Federation’s conduct has resulted in nullifying or
limiting the rights and freedoms of the Crimean Tatar and Ukrainian
communities protected under Articles 2, paragraph (1) (a) and (b), 4,
5 (a) to (e), 6 and 7, of CERD. Ukraine thus asserts that its claims relate
to an aspect of the dispute which concerns the interpretation or applica-
tion of CERD.

   90. Moreover, Ukraine argues that freedom from deportation from
one’s country by an “occupying State” is a human right or fundamental
freedom, the denial of which on a racial or ethnic basis constitutes a
breach of CERD. Ukraine further argues that the denial of the right to
return to one’s country either by the territorial sovereign or by an “occu-
pying State” also constitutes a breach of CERD. Ukraine also emphasizes
that, considering Article 1, paragraph 3, of CERD, citizenship laws
passed by States parties to the Convention may constitute a breach of
CERD if they “discriminate against any particular nationality”. In this

                                                                        39

            application of the icsft and cerd (judgment)                594

regard, Ukraine maintains that the law granting Russian citizenship to
citizens of Ukraine and to stateless persons resident in Crimea, together
with the Russian Federation’s enforcement of this law, disproportion-
ately and adversely aﬀects Crimean Tatars and ethnic Ukrainians in
Crimea. Ukraine disputes the Russian Federation’s assertion that these
measures fall outside of CERD by virtue of paragraphs 2 and 3 of Arti-
cle 1.

   91. Ukraine also submits that the protections provided by CERD do
not exist solely with respect to those rights listed in the Convention, but
extend to human rights and fundamental freedoms in other ﬁelds of pub-
lic life. It is Ukraine’s position that the Russian Federation’s arguments
on the interpretation of certain provisions of CERD conﬁrm that the dis-
pute between the Parties also concerns the interpretation of that Conven-
tion. According to Ukraine, the issues in dispute between the Parties
concern the respect of the right of indigenous peoples to maintain their
representative institutions, the right of minorities to be educated in their
native language, the consideration of Article 49 of the Fourth Geneva
Convention as a rule relevant to the interpretation of Article 5, para-
graph (d) (ii), of CERD, and the relevance of Article 1, paragraphs 2
and 3, to claims relating to the imposition of Russian citizenship in
Crimea. Ukraine submits that it is appropriate for the Court to decide
these disputed issues at the merits stage of the proceedings.

   92. In the alternative, Ukraine argues that, should the Court decide to
address such issues at the preliminary objections stage, it should decide
them in Ukraine’s favour. The Applicant maintains that targeting the
Mejlis constitutes an ethnicity-based distinction having the purpose or
eﬀect of impairing the human rights and fundamental freedoms of the
Crimean Tatar People. Ukraine further states that Article 5 (e) (v) of
CERD provides for a broad right to education and training, which also
covers the right to be educated in one’s own native language. Ukraine
also clariﬁes that it is not requesting the Court to make any ﬁnding or
grant any relief in respect of breaches of CERD resulting from discrimi-
nation on religious grounds. The Applicant further maintains that it is
not asking the Court to decide claims of discrimination on the basis of
political opinion.

   93. According to Ukraine, the Russian Federation’s claim that the
extension of its laws in Crimea is equated by Ukraine to a violation
of CERD is inaccurate; the Applicant argues that, in its Memorial, it
referred to the introduction of such laws to describe the means by which
the Respondent has pursued a campaign of discrimination in Crimea.
Using as an example the breach of freedom of peaceful assembly,
Ukraine submits that the alleged violations of CERD do not result from
breaches of international humanitarian law, but from the discriminatory
application by the Russian Federation of its domestic legislation as a

                                                                         40

            application of the icsft and cerd (judgment)                595

means of repressing the Crimean Tatar and Ukrainian communities in
Crimea.

                                    * *
   94. In order to determine whether it has jurisdiction ratione materiae
under CERD, the Court does not need to satisfy itself that the measures
of which Ukraine complains actually constitute “racial discrimination”
within the meaning of Article 1, paragraph 1, of CERD. Nor does the
Court need to establish whether, and, if so, to what extent, certain acts
may be covered by Article 1, paragraphs 2 and 3, of CERD. Both
determinations concern issues of fact, largely depending on evidence
regarding the purpose or eﬀect of the measures alleged by Ukraine, and
are thus properly a matter for the merits, should the case proceed to that
stage.
   95. At the current stage of the proceedings, the Court only needs to
ascertain whether the measures of which Ukraine complains fall within
the provisions of the Convention (see paragraph 57 above). In this respect,
the Court notes that both Parties agree that Crimean Tatars and ethnic
Ukrainians in Crimea constitute ethnic groups protected under CERD.
Moreover, Articles 2, 4, 5, 6 and 7 of the Convention set out speciﬁc
obligations in relation to the treatment of individuals on the basis of
“race, colour, descent, or national or ethnic origin”. Article 2, para-
graph 1, of CERD contains a general obligation to pursue by all appro-
priate means a policy of eliminating racial discrimination, and an
obligation to engage in no act or practice of racial discrimination against
persons, groups of persons or institutions. Article 5 imposes an obligation
to prohibit and eliminate racial discrimination, and to guarantee the right
of everyone to equality before the law, notably in the enjoyment of rights
mentioned therein, including political, civil, economic, social and cultural
rights.
   96. The Court, taking into account the broadly formulated rights and
obligations contained in the Convention, including the obligations under
Article 2, paragraph 1, and the non-exhaustive list of rights in Article 5,
considers that the measures of which Ukraine complains (see para-
graph 88 above) are capable of having an adverse eﬀect on the enjoyment
of certain rights protected under CERD. These measures thus fall within
the provisions of the Convention.
   97. Consequently, the Court concludes that the claims of Ukraine fall
within the provisions of CERD.

         B. Procedural Preconditions under Article 22 of CERD

  98. Having established that the claims of Ukraine fall within the scope
of CERD, the Court now turns to the examination of the procedural pre-
conditions under Article 22 of the Convention.

                                                                         41

            application of the icsft and cerd (judgment)                 596

1. The alternative or cumulative character of the procedural preconditions
   99. The Russian Federation argues that Article 22 imposes precondi-
tions to the seisin of the Court, and that the Court has jurisdiction only if
both preconditions are satisﬁed. According to the Russian Federation,
the conjunction “or” may have an alternative meaning, a cumulative
meaning or both; the Respondent further maintains that, in Article 22,
the word “or” indicates cumulative, not alternative, preconditions. The
Russian Federation also argues that interpreting Article 22 to provide for
alternative procedural preconditions would deprive the provision of
effet utile, as it would be meaningless if no legal consequences were to be
drawn from the reference to two distinct preconditions. The Russian Fed-
eration adds that conciliation under the auspices of the CERD Commit-
tee cannot be regarded as a kind of negotiation, since, unlike negotiation,
it entails third-party intervention, and that reading Article 22 in its con-
text and in light of the object and purpose of CERD conﬁrms that the
two procedural preconditions are cumulative.

   100. The Respondent contends that its interpretation of Article 22 of
CERD is supported by the drafting history of the Convention. The Rus-
sian Federation argues that the earliest version of what subsequently
became Article 22, proposed by the representative of the Philippines to
the Sub-Commission on Prevention of Discrimination and Protection of
Minorities, envisaged that the Court could only be seised of a dispute if
the CERD Committee had already failed to eﬀect conciliation. According
to the Russian Federation, a new proposal for the compromissory clause,
prepared by the oﬃcers of the Third Committee of the United Nations
General Assembly, mentioned only negotiation as a procedural precondi-
tion; thereafter, an amendment by Ghana, Mauritania and the Philip-
pines (hereinafter “the Three-Power amendment”), which proposed
introducing the words “or by the procedures expressly provided for in
this Convention” into Article 22, was adopted unanimously. The Rus-
sian Federation infers from this addition that the drafters of CERD
intended that resort to those procedures would be compulsory before
referral of a dispute to the Court.
   101. The Russian Federation also infers the cumulative character of
the procedural preconditions under Article 22 of CERD by comparing
the compromissory clauses of other human rights treaties, namely the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, the International Convention on the Protec-
tion of the Rights of All Migrant Workers and Members of Their Fami-
lies, the International Convention for the Protection of All Persons from
Enforced Disappearance and the Convention on the Elimination of All
Forms of Discrimination against Women. According to the Respondent,
the compromissory clauses in these treaties set out a three-step procedure
to settle disputes on their interpretation or application, envisaging nego-

                                                                          42

            application of the icsft and cerd (judgment)               597

tiation as the ﬁrst step, eﬀorts to set up an arbitration over a certain
period of time as the second step, and resort to the Court once that period
of time has elapsed as the third step. The Russian Federation states that
the dispute settlement system under Article 22 of CERD is similar to, and
should be interpreted consistently with, the three-step procedure for
which these treaties provide.

                                    *
   102. Ukraine states that the correct interpretation of Article 22 of
CERD is that it contains no preconditions to the Court’s jurisdiction.
The Applicant argues that should the Court interpret Article 22 as estab-
lishing preconditions, the “most natural reading” of Article 22 is that
“or” conveys that “negotiation” and the “procedures expressly provided
for in this Convention” are two alternative options for resolving a dispute
before the seisin of the Court. Ukraine also contends that, in Article 22,
the word “or” appears three times, always with disjunctive meaning.

   103. Ukraine submits that, if the CERD Committee procedure were to
be considered as mandatory, the Convention would have said so explic-
itly. According to the Applicant, it would not make sense if Article 22
required disputing States ﬁrst to negotiate within an unspeciﬁed period of
time only to renegotiate for six more months in accordance with the
CERD Committee procedure. Ukraine adds that the CERD Committee
only hears complaints by a State party “that another State Party is not
giving eﬀect to the provisions of this Convention”, which entails that, if
Article 22 required exhaustion of the CERD Committee procedure, a dis-
pute limited to the interpretation of CERD would never satisfy the pre-
conditions for States to seise the Court. Ukraine considers that the
placement of Article 22 within Part III of CERD, while the CERD Com-
mittee procedures are governed by Part II, indicates that Article 22 was
not intended to make the procedures before the CERD Committee a nec-
essary precondition for seising the Court. According to the Applicant, as
the preamble indicates that CERD was intended to be an eﬀective instru-
ment to eliminate racial discrimination promptly, it would be inconsistent
with the object and purpose of CERD if Article 22 delayed the settlement
of disputes by imposing cumulative procedural preconditions.

  104. Although Ukraine expresses the view that recourse to supplemen-
tary means of interpretation is not necessary, it argues that, should
recourse be had to the drafting history of CERD, it would not assist the
Russian Federation’s case. According to Ukraine, the late addition, by

                                                                        43

            application of the icsft and cerd (judgment)               598

the Three-Power amendment, of a reference to “the procedures expressly
provided for in this Convention” to the compromissory clause of CERD
merely aimed to clarify that the CERD Committee procedure was one of
the options available before States referred their disputes to the Court.
Ukraine also supports this view by reference to the statement that Ghana
made as a sponsor of the Three-Power amendment, according to which
the amendment was “self-explanatory” and contained a “simple refer[ence]
to the procedures provided for in the Convention”.

   105. Ukraine further maintains that the Russian Federation’s reliance
on the compromissory clauses in other human rights treaties (see para-
graph 101 above) is misplaced, as such treaties contain compromissory
clauses which are diﬀerent from Article 22 of CERD.

                                   * *
   106. Pursuant to Article 22 of CERD, the Court has jurisdiction to
decide a dispute brought under the Convention provided that such a dis-
pute is “not settled by negotiation or by the procedures expressly pro-
vided for in this Convention”. In the case concerning Application of the
International Convention on the Elimination of All Forms of Racial Dis-
crimination (Georgia v. Russian Federation), the Court found that

    “in their ordinary meaning, the terms of Article 22 of CERD, namely
    ‘[a]ny dispute . . . which is not settled by negotiation or by the pro-
    cedures expressly provided for in this Convention’, establish pre-
    conditions to be fulﬁlled before the seisin of the Court” (Preliminary
    Objections, Judgment, I.C.J. Reports 2011 (I), p. 128, para. 141; see
    also ibid., pp. 129-130, para. 147).

In that case, the Court did not determine whether the preconditions set
out in Article 22 of CERD are alternative or cumulative. In order to
make this determination, the Court will apply the rules of customary
international law on treaty interpretation as reﬂected in Articles 31 to 33
of the Vienna Convention (Question of the Delimitation of the Continental
Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from
the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (I), p. 116, para. 33).

   107. Concerning the text of Article 22 of CERD, the Parties expressed
divergent views on the meaning of the word “or” in the phrase “not set-
tled by negotiation or by the procedures expressly provided for in this
Convention”. The Court notes that the conjunction “or” appearing
between “negotiation” and the “procedures expressly provided for in this
Convention” is part of a clause which is introduced by the word “not”,
and thus formulated in the negative. While the conjunction “or” should

                                                                        44

            application of the icsft and cerd (judgment)                 599

generally be interpreted disjunctively if it appears as part of an aﬃrmative
clause, the same view cannot necessarily be taken when the same conjunc-
tion is part of a negative clause. Article 22 is an example of the latter. It
follows that, in the relevant part of Article 22 of CERD, the conjunction
“or” may have either disjunctive or conjunctive meaning. The Court
therefore is of the view that while the word “or” may be interpreted dis-
junctively and envisage alternative procedural preconditions, this is not
the only possible interpretation based on the text of Article 22.

   108. Article 22 of CERD must be interpreted in its context. Article 22
refers to two preconditions, namely negotiation and the procedure before
the CERD Committee governed by Articles 11 to 13 of the Convention.
Article 11, paragraph 1, of CERD envisages that, if a State party consid-
ers that another State party “is not giving eﬀect to the provisions of [the]
Convention, it may bring the matter to the attention of the [CERD] Com-
mittee”; the CERD Committee “shall then transmit the communication
to the State Party concerned”, which, within three months, “shall submit
to the Committee written explanations or statements clarifying the matter
and the remedy, if any, that may have been taken”. Under Article 11,
paragraph 2, a State has the right to refer the matter back to the
CERD Committee through a second communication “[i]f the matter is
not adjusted to the satisfaction of both parties, either by bilateral nego-
tiations or by any other procedure open to them, within six months after
the receipt by the receiving State of the initial communication”.

   109. Pursuant to Article 12, paragraph 1 (a), of CERD, after the
CERD Committee has obtained the necessary information, its chairper-
son shall appoint an ad hoc Conciliation Commission, the good oﬃces of
which shall be made available to the States concerned “with a view to an
amicable solution of the matter”. Article 13, paragraph 1, provides that,
when the Commission has fully considered the matter, it shall submit to
the chairperson of the CERD Committee a report containing “such rec-
ommendations as it may think proper for the amicable solution of the
dispute”. Pursuant to Article 13, paragraph 2, the States concerned,
within three months of receiving such recommendations from the chair-
person of the Committee, shall inform the chairperson as to “whether or
not they accept the recommendations contained in the report of the Com-
mission”. The references to the “amicable solution” of the dispute and to
the States’ communication of acceptance of the Conciliation Commis-
sion’s recommendations indicate, in the Court’s view, that the objective
of the CERD Committee procedure is for the States concerned to reach
an agreed settlement of their dispute.
   110. The Court therefore considers that “negotiation” and the “proce-
dures expressly provided for in [the] Convention” are two means to
achieve the same objective, namely to settle a dispute by agreement. Both
negotiation and the CERD Committee procedure rest on the States par-
ties’ willingness to seek an agreed settlement of their dispute. It follows

                                                                          45

            application of the icsft and cerd (judgment)                600

that should negotiation and the CERD Committee procedure be consid-
ered cumulative, States would have to try to negotiate an agreed solution
to their dispute and, after negotiation has not been successful, take the
matter before the CERD Committee for further negotiation, again in
order to reach an agreed solution. The Court considers that the context of
Article 22 of CERD does not support this interpretation. In the view of
the Court, the context of Article 22 rather indicates that it would not be
reasonable to require States parties which have already failed to reach an
agreed settlement through negotiations to engage in an additional set of
negotiations in accordance with the modalities set out in Articles 11 to 13
of CERD.
   111. The Court considers that Article 22 of CERD must also be inter-
preted in light of the object and purpose of the Convention. Article 2,
paragraph 1, of CERD provides that States parties to CERD undertake
to eliminate racial discrimination “without delay”. Articles 4 and 7 pro-
vide that States parties undertake to eradicate incitement to racial dis-
crimination and to combat prejudices leading to racial discrimination by
adopting “immediate and positive measures” and “immediate and eﬀec-
tive measures” respectively. The preamble to CERD further emphasizes
the States’ resolve to adopt all measures for eliminating racial discrimina-
tion “speedily”. The Court considers that these provisions show the States
parties’ aim to eradicate all forms of racial discrimination eﬀectively and
promptly. In the Court’s view, the achievement of such aims could be
rendered more diﬃcult if the procedural preconditions under Article 22
were cumulative.

   112. The Court notes that both Parties rely on the travaux prépara-
toires of CERD in support of their respective arguments concerning the
alternative or cumulative character of the procedural preconditions under
Article 22 of the Convention. Since the alternative character of the
procedural preconditions is suﬃciently clear from an interpretation of
the ordinary meaning of the terms of Article 22 in their context, and in
light of the object and purpose of the Convention, the Court is of the
view that there is no need for it to examine the travaux préparatoires of
CERD.
   113. The Court concludes that Article 22 of CERD imposes alternative
preconditions to the Court’s jurisdiction. Since the dispute between the
Parties was not referred to the CERD Committee, the Court will only
examine whether the Parties attempted to negotiate a settlement to their
dispute.

2. Whether the Parties attempted to negotiate a settlement to their dispute
   under CERD
  114. The Russian Federation argues that, although the Parties made
reciprocal accusations and replies to each other, Ukraine did not negoti-
ate in good faith within the meaning of Article 22 of CERD. According

                                                                         46

            application of the icsft and cerd (judgment)                601

to the Russian Federation, Ukraine’s Notes Verbales were replete with
accusations, including of occupation and aggression, which resulted in
escalating tensions between the Parties. The Respondent expresses the
view that Ukraine had never aimed at solving the dispute between the
Parties, but that its only aim was to hold the Russian Federation respon-
sible by bringing the matter before the Court. The Russian Federation
also refers to the diplomatic exchanges between the Parties in 2014,
emphasizing that Ukraine set very short deadlines for the Parties to
organize face-to-face meetings, and that it wrongly accused the Russian
Federation of not replying positively to negotiation proposals. The
Russian Federation acknowledges that the Parties ﬁnally held face-to-face
negotiations, but states that Ukraine did not behave in good faith during
such negotiations, as it insisted on its positions, refusing to devote the
necessary time to examining the positions and allegations of both Parties.
The Russian Federation also submits that face-to-face negotiations were
carried out within an unduly short time frame owing to choices made by
Ukraine, which resulted in little progress being made.

                                     *
   115. Ukraine states that it engaged in good-faith negotiations by send-
ing multiple Notes Verbales to the Russian Federation, making concrete
proposals for the organization of the negotiations and detailing the acts
of racial discrimination allegedly being committed against the Crimean
Tatar and Ukrainian communities of Crimea. Ukraine maintains that its
attempts to negotiate directly with the Russian Federation were not met
with substantive responses, since there was no reply to any of the Notes
Verbales concerning the Russian Federation’s alleged conduct in viola-
tion of CERD sent by Ukraine before the ﬁling of the Application. None-
theless, Ukraine contends that it persisted in its eﬀorts to engage with the
Russian Federation, which included three face-to-face meetings in Minsk.
The Applicant maintains that it has meticulously put the Russian
Federation on notice with respect to the facts which allegedly constitute
breaches of CERD and has given the Russian Federation ample opportu-
nity to respond over a two-year period. Ukraine submits that it only ﬁled
its Application with the Court when it had become clear that further
negotiations would have been fruitless, considering that no progress had
been made and that there had been no change in the Parties’ respective
positions. The Applicant also rejects the Respondent’s attempts to show
that it acted in bad faith while conducting negotiations with respect to
CERD.

                                    * *
  116. The Court has already had the opportunity to examine the notion
of “negotiation” under Article 22 of CERD. In the case concerning Appli-
cation of the International Convention on the Elimination of All Forms of

                                                                         47

            application of the icsft and cerd (judgment)               602

Racial Discrimination (Georgia v. Russian Federation), the Court stated
that
    “negotiations are distinct from mere protests or disputations. Nego-
    tiations entail more than the plain opposition of legal views or inter-
    ests between two parties, or the existence of a series of accusations
    and rebuttals, or even the exchange of claims and directly opposed
    counter-claims. As such, the concept of ‘negotiations’ diﬀers from the
    concept of ‘dispute’, and requires — at the very least — a genuine
    attempt by one of the disputing parties to engage in discussions with
    the other disputing party, with a view to resolving the dispute.”
    (Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 132,
    para. 157; see also Pulp Mills on the River Uruguay (Argentina v.
    Uruguay), Judgment, I.C.J. Reports 2010 (I), p. 68, para. 150; North
    Sea Continental Shelf (Federal Republic of Germany/Denmark;
    Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports
    1969, pp. 47-48, para. 87; Railway Traffic between Lithuania
    and Poland, Advisory Opinion, 1931, P.C.I.J., Series A/B, No. 42,
    p. 116.)
The Court also stated that “evidence of such an attempt to negotiate —
or of the conduct of negotiations — does not require the reaching of an
actual agreement between the disputing parties” (I.C.J. Reports 2011 (I),
p. 132, para. 158), and that “to meet the precondition of negotiation in
the compromissory clause of a treaty, these negotiations must relate to
the subject-matter of the treaty containing the compromissory clause”
(ibid., p. 133, para. 161).
   117. The Court further held that “the precondition of negotiation is
met only when there has been a failure of negotiations, or when negotia-
tions have become futile or deadlocked” (ibid., p. 133, para. 159). This
statement was conﬁrmed in the case concerning Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), in which,
despite the fact that Belgium had sent Senegal four Notes Verbales and
engaged in negotiations with Senegal, such steps did not lead to a settle-
ment of their dispute (Judgment, I.C.J. Reports 2012 (II), p. 446,
paras. 58-59).
   118. The Court notes that Ukraine sent its ﬁrst Note Verbale to the
Russian Federation concerning alleged violations of CERD on 23 Sep-
tember 2014. In that Note, Ukraine listed a number of measures which, in
its view, the Russian Federation was implementing in violation of the
Convention, and the rights which such acts were allegedly violating, and
went on to state that “the Ukrainian Side oﬀers to the Russian Side to
negotiate the use of [CERD], in particular, the implementation of interna-
tional legal liability in accordance with international law”. On 16 October
2014, the Russian Federation communicated to Ukraine its willingness to
hold negotiations on the interpretation and application of CERD. On
29 October 2014, the Applicant sent a second Note Verbale to the
Respondent, asking for face-to-face negotiations which it proposed to

                                                                        48

            application of the icsft and cerd (judgment)                 603

hold on 21 November 2014. The Russian Federation replied to this Note
on 27 November 2014, after Ukraine’s proposed date for the meeting had
passed. Ukraine sent a third Note Verbale on 15 December 2014, propos-
ing negotiations on 23 January 2015. The Russian Federation replied to
this Note on 11 March 2015, after the date proposed by Ukraine for the
negotiations had passed. Eventually, the Parties held three rounds of
negotiation in Minsk between April 2015 and December 2016.

   119. There are speciﬁc references to CERD in the Notes Verbales
exchanged between the Parties, which also refer to the rights and obliga-
tions arising under that Convention. In those Notes, Ukraine set out
its views concerning the alleged violations of the Convention, and the
Russian Federation accordingly had a full opportunity to reply to such
allegations. The Court is satisﬁed that the subject-matter of such diplo-
matic exchanges related to the subject-matter of the dispute currently
before the Court, as deﬁned in paragraphs 31-32 of this Judgment.
   120. The Court observes that the negotiations between the Parties
lasted for approximately two years and included both diplomatic corre-
spondence and face-to-face meetings, which, in the Court’s view, and
despite the lack of success in reaching a negotiated solution, indicates that
a genuine attempt at negotiation was made by Ukraine. Furthermore, the
Court is of the opinion that, during their diplomatic exchanges, the Par-
ties’ respective positions remained substantially the same. The Court thus
concludes that the negotiations between the Parties had become futile or
deadlocked by the time Ukraine ﬁled its Application under Article 22 of
CERD.
   121. Accordingly, the Court concludes that the procedural precondi-
tions for it to have jurisdiction under Article 22 of CERD are satisﬁed in
the circumstances of the present case. As a result, the Court has jurisdic-
tion to consider the claims of Ukraine under CERD.

                             C. Admissibility
   122. The Court will now turn to the objection raised by the Rus-
sian Federation to the admissibility of Ukraine’s Application with regard
to claims under CERD on the ground that Ukraine did not establish that
local remedies had been exhausted before it seised the Court.

                                    * *
  123. The Russian Federation contends that the rule of exhaustion of
local remedies is well established in international law, and that it also
applies to inter-State claims under CERD. The Russian Federation sub-
mits that the rule of exhaustion of local remedies requires claims relating
to alleged violations of individual rights to be, in essence, the same as

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            application of the icsft and cerd (judgment)               604

those previously submitted to domestic courts. It follows, the Respondent
maintains, that the allegations in Ukraine’s Application should have been
submitted to domestic courts as claims of racial discrimination. The Rus-
sian Federation further submits that, in its written statement, Ukraine
formulated its claims diﬀerently from its Application and Memorial in
order to overcome the objection based on the rule of exhaustion of local
remedies.

   124. According to the Respondent, Articles 11, paragraph 3, and 14,
paragraph 7 (a), of CERD make it clear that the rule of exhaustion of
local remedies applies to claims under the Convention. The Respondent
further submits that the application of the rule of exhaustion of local
remedies is consistent with Article 6 of CERD, which imposes an obliga-
tion on States parties to provide “eﬀective protection and remedies,
through the competent national tribunals and other State institutions”, to
everyone within their jurisdiction. The Russian Federation also contends
that the application of the rule of exhaustion of local remedies is consis-
tent with the approach of other human rights treaties and is conﬁrmed by
the Articles on Responsibility of States for Internationally Wrongful Acts
adopted by the International Law Commission.

   125. The Russian Federation further relies on the approach of the
CERD Committee that local remedies must be exhausted even if there are
doubts as to their eﬀectiveness. The Respondent argues that Ukraine has
not established that local remedies were exhausted, or that cases were
submitted before domestic courts, prior to it instituting proceedings under
Article 22 of CERD. Moreover, according to the Russian Federation, the
claims before domestic courts on which Ukraine relies did not concern
allegations of racial discrimination.

                                    *
  126. Ukraine argues that local remedies must be exhausted only when
a State brings a claim on behalf of one or more of its nationals. Accord-
ing to the Applicant, the rule of exhaustion of local remedies has no
application in the present case since Ukraine’s claims relate to an alleged
pattern of conduct of the Russian Federation, and Ukraine is invoking
the rights it holds as a State under CERD. Ukraine contends that the
Russian Federation’s objection is not persuasive because Ukraine did not
bring the present case to vindicate individual rights. On the contrary,
Ukraine seeks an end to the Russian Federation’s alleged “systematic
campaign of racial discrimination” in violation of CERD.

  127. Ukraine states that both the structure of CERD and the plain
language of its provisions contradict the Russian Federation’s argument.

                                                                        50

            application of the icsft and cerd (judgment)                605

Ukraine emphasizes that references to the rule of exhaustion of local rem-
edies are contained in Part II of CERD concerning the procedure before
the CERD Committee, whereas Article 22 is located in Part III of the
Convention, which makes no reference to the rule of exhaustion of local
remedies. On this basis, Ukraine infers that the rule of exhaustion of local
remedies applies only in the context of the CERD Committee procedure.
Ukraine further submits that, in any event, Article 11, paragraph 3, and
Article 14, paragraph 7 (a), of CERD have no relevance in the present
case: ﬁrst, as a sovereign State, Ukraine cannot be expected to submit
itself to the domestic courts of another sovereign State; secondly, bring-
ing a dispute before the courts of the Russian Federation would be futile,
as Ukraine could not expect a fair hearing of its claims.

  128. Ukraine states that the cases heard by human rights courts on
which the Russian Federation relies all concern claims by individuals or
non-governmental organizations acting on their behalf. Ukraine relies on
the jurisprudence of the European Court of Human Rights and of the
African Commission on Human and Peoples’ Rights, which, in its view,
supports its position that the rule of exhaustion of local remedies does
not apply in the present case. In particular, Ukraine refers to a decision
in which the European Court of Human Rights held that the rule of
exhaustion of local remedies “does not apply where the applicant State
complains of a practice as such . . . but does not ask the Court to give a
decision on each of the cases put forward as proof or illustrations of that
practice” (Georgia v. Russia (II), Application No. 38263/08, Decision on
Admissibility of 13 December 2011, para. 85). Ukraine concludes that the
rule of exhaustion of local remedies does not apply in the present case
and that its Application is consequently admissible.

                                    * *
   129. The Court recalls that local remedies must be previously exhausted
as a matter of customary international law in cases in which a State brings
a claim on behalf of one or more of its nationals (Interhandel (Switzer-
land v. United States of America), Preliminary Objections, Judgment,
I.C.J. Reports 1959, p. 27; Elettronica Sicula S.p.A. (ELSI) (United States
of America v. Italy), Judgment, I.C.J. Reports 1989, p. 42, para. 50;
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
Congo), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II),
p. 599, para. 42; see also Draft Articles on Responsibility of States for
Internationally Wrongful Acts with Commentaries, Report of the Inter-
national Law Commission on the work of its ﬁfty-third session, Yearbook
of the International Law Commission, 2001, Vol. II, Part Two, pp. 120-121;

                                                                         51

             application of the icsft and cerd (judgment)                  606

Draft Articles on Diplomatic Protection with Commentaries, Report of
the International Law Commission on the work of its ﬁfty-eighth session,
Yearbook of the International Law Commission, 2006, Vol. II, Part Two,
p. 44).

   130. The Court notes that, according to Ukraine, the Russian Federa-
tion has engaged in a sustained campaign of racial discrimination, carried
out through acts repeated over an appreciable period of time starting in
2014, against the Crimean Tatar and Ukrainian communities in Crimea.
The Court also notes that the individual instances to which Ukraine refers
in its submissions emerge as illustrations of the acts by which the
Russian Federation has allegedly engaged in a campaign of racial
discrimination. It follows, in the view of the Court, that, in ﬁling its Appli-
cation under Article 22 of CERD, Ukraine does not adopt the cause of
one or more of its nationals, but challenges, on the basis of CERD, the
alleged pattern of conduct of the Russian Federation with regard to
the treatment of the Crimean Tatar and Ukrainian communities in Crimea.
In view of the above, the Court concludes that the rule of exhaustion of
local remedies does not apply in the circumstances of the present case.
   131. This conclusion by the Court is without prejudice to the question
of whether the Russian Federation has actually engaged in the campaign
of racial discrimination alleged by Ukraine, thus breaching its obligations
under CERD. This is a question which the Court will address at the mer-
its stage of the proceedings.
   132. The Court ﬁnds that the Russian Federation’s objection to the
admissibility of Ukraine’s Application with regard to CERD must be
rejected.

                                        *
   133. It follows from the ﬁndings made above that the Russian Federa-
tion’s objections to the jurisdiction of the Court under Article 22 of
CERD and to the admissibility of Ukraine’s Application with regard to
CERD must be rejected. Accordingly, the Court concludes that it has
jurisdiction to entertain the claims made by Ukraine under CERD and
that Ukraine’s Application with regard to those claims is admissible.

                                        *
                                    *       *

  134. For these reasons,
  The Court,
  (1) By thirteen votes to three,
  Rejects the preliminary objection raised by the Russian Federation that
the Court lacks jurisdiction on the basis of Article 24, paragraph 1, of the

                                                                            52

            application of the icsft and cerd (judgment)                 607

International Convention for the Suppression of the Financing of Terror-
ism;
  in favour: President Yusuf; Judges Abraham, Bennouna, Cançado Trindade,
     Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Salam, Iwas-
     awa; Judge ad hoc Pocar;
  against: Vice-President Xue; Judge Tomka; Judge ad hoc Skotnikov;

  (2) By thirteen votes to three,
   Finds that it has jurisdiction on the basis of Article 24, paragraph 1, of
the International Convention for the Suppression of the Financing of
Terrorism, to entertain the claims made by Ukraine under this Conven-
tion;
  in favour: President Yusuf; Judges Abraham, Bennouna, Cançado Trindade,
     Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Salam, Iwas-
     awa; Judge ad hoc Pocar;
  against: Vice-President Xue; Judge Tomka; Judge ad hoc Skotnikov;

  (3) By ﬁfteen votes to one,
  Rejects the preliminary objection raised by the Russian Federation that
the Court lacks jurisdiction on the basis of Article 22 of the International
Convention on the Elimination of All Forms of Racial Discrimination;

  in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
    Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
    Robinson, Crawford, Salam, Iwasawa; Judge ad hoc Pocar;

  against: Judge ad hoc Skotnikov;
  (4) Unanimously,
  Rejects the preliminary objection raised by the Russian Federation to
the admissibility of the Application of Ukraine in relation to the claims
under the International Convention on the Elimination of All Forms of
Racial Discrimination;
  (5) By ﬁfteen votes to one,
   Finds that it has jurisdiction, on the basis of Article 22 of the Interna-
tional Convention on the Elimination of All Forms of Racial Discrimina-
tion, to entertain the claims made by Ukraine under this Convention, and
that the Application in relation to those claims is admissible.

  in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
    Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
    Robinson, Crawford, Salam, Iwasawa; Judge ad hoc Pocar;
  against: Judge ad hoc Skotnikov.

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            application of the icsft and cerd (judgment)              608

  Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this eighth day of November two thousand
and nineteen, in three copies, one of which will be placed in the archives
of the Court and the others transmitted to the Government of Ukraine
and the Government of the Russian Federation, respectively.

                                  (Signed) Abdulqawi Ahmed Yusuf,
                                                  President.
                                       (Signed) Philippe Gautier,
                                                    Registrar.

  Vice-President Xue appends a dissenting opinion to the Judgment of
the Court; Judges Tomka and Cançado Trindade append separate opin-
ions to the Judgment of the Court; Judges Donoghue and Robinson
append declarations to the Judgment of the Court; Judge ad hoc Pocar
appends a separate opinion to the Judgment of the Court;
Judge ad hoc Skotnikov appends a dissenting opinion to the Judgment of
the Court.

                                                    (Initialled) A.A.Y.
                                                     (Initialled) Ph.G.

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