          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)

           DEMANDE EN INDICATION
         DE MESURES CONSERVATOIRES

         ORDONNANCE DU 19 AVRIL 2017

                 2017
          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)

         REQUEST FOR THE INDICATION
          OF PROVISIONAL MEASURES

             ORDER OF 19 APRIL 2017

                                             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), mesures conservatoires,
                            ordonnance du 19 avril 2017, C.I.J. Recueil 2017, p. 104

                                                 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), Provisional Measures,
                                Order of 19 April 2017, I.C.J. Reports 2017, p. 104

                                                                                1120
                                                                  No de vente:
                   ISSN 0074-4441                                 Sales number
                   ISBN 978-92-1-157318-3

5 CIJ1120.indb 2                                                                             21/03/18 13:17

                                  19 AVRIL 2017

                                 ORDONNANCE

     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)
       DEMANDE EN INDICATION
     DE MESURES CONSERVATOIRES

  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)
     REQUEST FOR THE INDICATION
      OF PROVISIONAL MEASURES

                                 19 APRIL 2017

                                     ORDER

                                                                         104

                      TABLE OF CONTENTS

                                                                   Paragraphs

Chronology of the Procedure                                             1-15
 I. Prima Facie Jurisdiction                                           17-62
   1. General introduction                                             17-21
   2. Existence of a dispute concerning the interpretation or
      application of ICSFT and CERD                                    22-39
     (a) The International Convention for the Suppression of
         the Financing of Terrorism                                    24-31
     (b) The International Convention on the Elimination of All
         Forms of Racial Discrimination                                32-39
   3. Procedural preconditions                                         40-61
      (a) The International Convention for the Suppression of
          the Financing of Terrorism                                   47-54
      (b) The International Convention on the Elimination of All
          Forms of Racial Discrimination                               55-61
   4. Conclusion as to prima facie jurisdiction                           62
II. The Rights Whose Protection Is Sought and the Measures
    Requested                                                          63-86
   1. General introduction                                             63-64
   2. The International Convention for the Suppression of the
      Financing of Terrorism                                           65-77
   3. The International Convention on the Elimination of All
      Forms of Racial Discrimination                                   78-86
III. Risk of Irreparable Prejudice and Urgency                         87-98
IV. Conclusion and Measures to Be Adopted                             99-105
Operative Paragraph                                                      106

                                                                           4

                                                                 105

             INTERNATIONAL COURT OF JUSTICE

                              YEAR 2017                                    2017
                                                                         19 April
                             19 April 2017                              General List
                                                                         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)

                REQUEST FOR THE INDICATION
                 OF PROVISIONAL MEASURES

                               ORDER

Present: President Abraham; Vice-President Yusuf; Judges Owada,
         Tomka, Bennouna, Cançado Trindade, Greenwood, Xue,
         Donoghue, Gaja, Sebutinde, Bhandari, Robinson,
         Crawford; Judges ad hoc Pocar, Skotnikov; Registrar
         Couvreur.

  The International Court of Justice,
  Composed as above,
  After deliberation,
  Having regard to Articles 41 and 48 of the Statute of the Court and
Articles 73, 74 and 75 of the Rules of Court,
  Makes the following Order:
  Whereas:

                                                                   5

          application of the icsft and cerd (ord. 19 IV 17)             106

   1. On 16 January 2017, the Government of Ukraine ﬁled in the Regis-
try of the Court an Application instituting proceedings against the
Russian Federation with regard to alleged violations of the International
Convention for the Suppression of the Financing of Terrorism of
9 December 1999 (hereinafter the “ICSFT”) and the International Con-
vention on the Elimination of All Forms of Racial Discrimination of
21 December 1965 (hereinafter “CERD”).
   2. With regard to the ICSFT, Ukraine presented the following claims
in its Application:
      “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 violated its obligations under the
    Terrorism Financing Convention by:

    (a) supplying funds, including in-kind contributions of weapons
        and training, to illegal armed groups that engage in acts of ter-
        rorism 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 associated groups and individuals, in violation of
        Articles 8 and 18;

    (c) failing to investigate, prosecute, or extradite perpetrators of the
        ﬁnancing 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 ter-
        rorism, 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 pri-
        vate actors, in violation of Article 18.

      135. Ukraine respectfully requests the Court to adjudge and declare
    that the Russian Federation bears international responsibility, by vir-
    tue of its sponsorship of terrorism and failure to prevent the ﬁnancing
    of terrorism under the Convention, for the acts of terrorism commit-
    ted by its proxies in Ukraine, including:
    (a) the shoot-down of Malaysian Airlines Flight MH17;

                                                                          6

     application of the icsft and cerd (ord. 19 IV 17)            107

(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
Federation to comply with its obligations under the Terrorism Finan-
cing Convention, including that the Russian Federation:

(a) immediately and unconditionally cease and desist from all sup-
    port, 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 associ-
    ated groups and individuals;
(b) immediately make all eﬀorts to ensure that all weaponry provided
    to such armed groups is withdrawn from Ukraine;

(c) immediately exercise appropriate control over its border to pre-
    vent 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 associated 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 Defense of the
    Russian 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 ﬁnan-
    cing terrorism;
(f) immediately provide full co-operation to Ukraine in all pending
    and future requests for assistance in the investigation and inter-
    diction 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 Malaysian 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;

                                                                      7

         application of the icsft and cerd (ord. 19 IV 17)             108

    (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.”
 3. With regard to CERD, Ukraine presented the following claims in its
Application:
       “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
        Tatar and ethnic Ukrainian communities in Crimea, in further-
        ance of a state policy of cultural erasure of disfavoured groups
        perceived to be opponents of the occupation régime;

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

    (c) suppressing the political and cultural expression of Crimean
        Tatar identity, 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 com-
        memorate 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 commu-
        nity’s educational institutions;

                                                                         8

     application of the icsft and cerd (ord. 19 IV 17)            109

(i) suppressing Ukrainian language education relied on by ethnic
    Ukrainians;
(j) preventing ethnic Ukrainians from gathering to celebrate and
    commemorate 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, includ-
ing:
(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
     People 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, includ-
     ing 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 dis-
     appearances of Reshat Ametov, Timur Shaimardanov, Ervin
     Ibragimov, and all other victims;
(e) immediately take all necessary and appropriate measures to end
     unjustiﬁed and disproportionate searches and detentions of
     Crimean Tatars in Russian-occupied Crimea;

(f) immediately restore licenses and take all other necessary and
    appropriate measures to permit Crimean Tatar media outlets to
    resume operations 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;

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

(i) immediately restore the rights of ethnic Ukrainians to engage in
    cultural gatherings in Russian-occupied Crimea;

(j) immediately take all necessary and appropriate measures to per-
    mit the free operation of ethnic Ukrainian media in Russian-
    occupied Crimea; and
(k) make full reparation for all victims of the Russian Federation’s

                                                                    9

          application of the icsft and cerd (ord. 19 IV 17)            110

        policy and pattern of cultural erasure through discrimination in
        Russian-occupied Crimea.”

  4. In its Application, Ukraine seeks to found the Court’s jurisdiction
on Article 24, paragraph 1, of the ICSFT and on Article 22 of CERD.
  5. On 16 January 2017, Ukraine also submitted a Request for the indi-
cation of provisional measures, referring to Article 41 of the Statute and
to Articles 73, 74 and 75 of the Rules of Court.
  6. With respect to the ICSFT, in paragraph 23 of its Request for the
indication of provisional measures, Ukraine asked the Court to indicate
the following provisional measures:
   “(a) The Russian Federation shall refrain from any action which
        might aggravate or extend the dispute under the Terrorism
        Financing Convention before the Court or make this dispute
        more diﬃcult to resolve.
    (b) The Russian Federation shall exercise appropriate control over
        its border to prevent further acts of terrorism ﬁnancing, including
        the supply of weapons from the territory of the Russian Feder-
        ation to the territory of Ukraine.
    (c) The Russian Federation shall halt and prevent all transfers from
        the territory of the Russian Federation of money, weapons,
        vehicles, equipment, training, or personnel to groups that
        have engaged in acts of terrorism against civilians in Ukraine, or
        that the Russian Federation knows may in the future engage in
        acts of terrorism against civilians in Ukraine, including but not
        limited to the ‘Donetsk People’s Republic’, the ‘Luhansk
        People’s Republic’, the ‘Kharkiv Partisans’, and associated
        groups and individuals.
    (d) The Russian Federation shall take all measures at its disposal to
        ensure that any groups operating in Ukraine that have previously
        received transfers from the territory of the Russian Federation of
        money, weapons, vehicles, equipment, training, or personnel will
        refrain from carrying out acts of terrorism against civilians in
        Ukraine.”
  7. With respect to CERD, in paragraph 24 of its Request for the indi-
cation of provisional measures, Ukraine asked the Court to indicate the
following provisional measures:
   “(a) The Russian Federation shall refrain from any action which
        might aggravate or extend the dispute under CERD before the
        Court or make it more diﬃcult to resolve.

    (b) The Russian Federation shall refrain from any act of racial dis-
        crimination against persons, groups of persons, or institutions in
        the territory under its eﬀective control, including the Crimean
        peninsula.

                                                                        10

          application of the icsft and cerd (ord. 19 IV 17)            111

    (c) The Russian Federation shall cease and desist from acts of polit-
        ical and cultural suppression against the Crimean Tatar people,
        including suspending the decree banning the Mejlis of the Crimean
        Tatar People and refraining from enforcement of this decree and
        any similar measures, while this case is pending.

    (d) The Russian Federation shall take all necessary steps to halt the
        disappearance of Crimean Tatar individuals and to promptly
        investigate those disappearances that have already occurred.
    (e) The Russian Federation shall cease and desist from acts of polit-
        ical and cultural suppression against the ethnic Ukrainian people
        in Crimea, including suspending restrictions on Ukrainian-
        language education and respecting ethnic Ukrainian language
        and educational rights, while this case is pending.”

  8. The Registrar immediately communicated to the Government of the
Russian Federation the Application, in accordance with Article 40, para-
graph 2, of the Statute of the Court, and the Request for the indication of
provisional measures, in accordance with Article 73, paragraph 2, of the
Rules of Court. He also notiﬁed the Secretary-General of the United
Nations of the ﬁling of the Application and the Request by Ukraine.

   9. Pending the notiﬁcation provided for by Article 40, paragraph 3, of
the Statute by transmission of the printed bilingual text of the Applica-
tion to the Members of the United Nations through the Secretary-
General, the Registrar informed those States of the ﬁling of the Appli-
cation.
   10. By letters dated 20 January 2017, the Registrar informed both
Parties that the Member of the Court of the nationality of the Russian
Federation, referring to Article 24, paragraph 1, of the Statute, had noti-
ﬁed the Court of his intention not to participate 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 Federation chose Mr. Leonid Skotnikov
to sit as judge ad hoc in the case.
   11. Since the Court included upon the Bench no judge of Ukrainian
nationality, 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.
   12. By letters dated 25 January 2017, the Registrar informed the Par-
ties that, pursuant to Article 74, paragraph 3, of the Rules, the Court had
ﬁxed 6, 7, 8 and 9 March 2017 as the dates for the oral proceedings on the
Request for the indication of provisional measures.

  13. At the public hearings held from 6 to 9 March 2017, oral obser-
vations on the Request for the indication of provisional measures were
presented by:

                                                                        11

          application of the icsft and cerd (ord. 19 IV 17)                112

On behalf of Ukraine:                H.E. Ms Olena Zerkal,
                                     Mr. Harold Hongju Koh,
                                     Ms Marney Cheek,
                                     Mr. Jonathan Gimblett.
On behalf of the Russian Federation: H.E. Mr. Roman Kolodkin,
                                     Mr. Ilya Rogachev,
                                     Mr. Samuel Wordsworth,
                                     Mr. Andreas Zimmermann,
                                     Mr. Grigoriy Lukiyantsev,
                                     Mr. Mathias Forteau.
  14. At the end of its second round of oral observations, Ukraine asked
the Court to indicate the following provisional measures:
       “With respect to the Terrorism Financing Convention, Ukraine
    requests that the Court order the following provisional measures:
    (a) The Russian Federation shall refrain from any action which
         might aggravate or extend the dispute under the Terrorism
         Financing Convention before the Court or make this dispute
         more diﬃcult to resolve.
    (b) The Russian Federation shall exercise appropriate control over
         its border to prevent further acts of terrorism ﬁnancing, including
         the supply of weapons from the territory of the Russian Feder-
         ation to the territory of Ukraine.
    (c) The Russian Federation shall halt and prevent all transfers from
         the territory of the Russian Federation of money, weapons,
         vehicles, equipment, training, or personnel to groups that
         have engaged in acts of terrorism against civilians in Ukraine, or
         that the Russian Federation knows may in the future engage in
         acts of terrorism against civilians in Ukraine, including but not
         limited to the ‘Donetsk People’s Republic’, the ‘Luhansk People’s
         Republic’, the ‘Kharkiv Partisans’, and associated groups and
         individuals.
    (d) The Russian Federation shall take all measures at its disposal to
         ensure that any groups operating in Ukraine that have previously
         received transfers from the territory of the Russian Federation of
         money, weapons, vehicles, equipment, training, or personnel will
         refrain from carrying out acts of terrorism against civilians in
         Ukraine
     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       With respect to the CERD, Ukraine requests that the Court order
    the following provisional measures:

    (a) The Russian Federation shall refrain from any action which
        might aggravate or extend the dispute under CERD before the
        Court or make it more diﬃcult to resolve.

                                                                             12

          application of the icsft and cerd (ord. 19 IV 17)              113

    (b) The Russian Federation shall refrain from any act of racial dis-
        crimination against persons, groups of persons, or institutions in
        the territory under its eﬀective control, including the Crimean
        peninsula.
    (c) The Russian Federation shall cease and desist from acts of polit-
        ical and cultural suppression against the Crimean Tatar people,
        including suspending the decree banning the Mejlis of the Crimean
        Tatar People and refraining from enforcement of this decree and
        any similar measures, while this case is pending.

    (d) The Russian Federation shall take all necessary steps to halt the
        disappearance of Crimean Tatar individuals and to promptly
        investigate those disappearances that have already occurred.
    (e) The Russian Federation shall cease and desist from acts of
        political and cultural suppression against the ethnic Ukrainian
        people in Crimea, including suspending restrictions on Ukrainian-
        language education and respecting ethnic Ukrainian language
        and educational rights, while this case is pending.”

  15. At the end of its second round of oral observations, Russia made
the following statement:
       “In accordance with Article 60 of the Rules of the Court for the
    reasons explained during these hearings the Russian Federation
    requests the Court to reject the request for the indication of provi-
    sional measures submitted by Ukraine.”

                                       *
                                   *       *

   16. The context in which the present case comes before the Court is
well known. In large parts of eastern Ukraine, that context is character-
ized by periods of extensive ﬁghting which, as the record before the Court
demonstrates, has claimed a large number of lives. The destruction, on
17 July 2014, of Malaysia Airlines Flight MH17 while it was ﬂying over
Ukrainian territory en route between Amsterdam and Kuala Lumpur,
caused the deaths of 298 people. The Court is well aware of the extent of
this human tragedy. Nevertheless, the case before the Court is limited in
scope. In respect of the events in the eastern part of its territory, Ukraine
has brought proceedings only under the ICSFT. With regard to the events
in Crimea, Ukraine’s claim is based solely upon CERD and the Court is
not called upon, as Ukraine expressly recognized, to rule upon any issue
other than allegations of racial discrimination.

                                                                          13

          application of the icsft and cerd (ord. 19 IV 17)              114

                       I. Prima Facie Jurisdiction

                          1. General Introduction
   17. The Court may indicate provisional measures only if the provisions
relied on by the Applicant appear, prima facie, to aﬀord a basis on which
its jurisdiction could be founded, but need not satisfy itself in a deﬁnitive
manner that it has jurisdiction as regards the merits of the case (see, for
example, Immunities and Criminal Proceedings (Equatorial Guinea v.
France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports
2016 (II), p. 1155, para. 31).
   18. In the present case, Ukraine seeks to found the jurisdiction of the
Court on Article 24, paragraph 1, of the ICSFT and on Article 22 of
CERD (see paragraph 4 above). The Court must therefore ﬁrst seek to
determine whether the jurisdictional clauses contained in these instru-
ments prima facie confer upon it jurisdiction to rule on the merits of the
case, enabling it — if the other necessary conditions are fulﬁlled — to
indicate provisional measures.

   19. Ukraine and the Russian Federation are parties to the ICSFT,
which entered into force on 10 April 2002. They deposited their instru-
ments of ratiﬁcation on 6 December 2002 and 27 November 2002, respect-
ively. Neither of them entered reservations to that instrument.
   Further, Ukraine and the Russian Federation are parties to CERD,
which entered into force on 4 January 1969. Ukraine deposited its instru-
ment of ratiﬁcation on 7 March 1969 with a reservation to Article 22 of
the Convention; on 20 April 1989, the depositary received notiﬁcation
that this reservation had been withdrawn. The Russian Federation is a
party to CERD as the State continuing the legal personality of the
Union of Soviet Socialist Republics which deposited its instrument of
ratiﬁcation on 4 February 1969 with a reservation to Article 22 of the
Convention; on 8 March 1989, the depositary received notiﬁcation
that this reservation had been withdrawn.
   20. Article 24, paragraph 1, of the ICSFT provides that:
       “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.”

  21. As regards CERD, Article 22 of that instrument reads as follows:
       “Any dispute between two or more States Parties with respect to

                                                                          14

          application of the icsft and cerd (ord. 19 IV 17)            115

    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.”

2. Existence of a Dispute concerning the Interpretation or Application of
                         the ICSFT and CERD
   22. Both Article 24, paragraph 1, of the ICSFT and Article 22 of
CERD make the Court’s jurisdiction conditional on the existence of a
dispute arising out of the interpretation or application of the respective
Convention. A dispute between States exists where they “‘hold clearly
opposite views concerning the question of the performance or non-
performance of certain’ international obligations” (see Alleged Violations
of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua
v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I),
p. 26, para. 50, citing Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports
1950, p. 74). The claim of one party must be “positively opposed” by the
other (South West Africa (Ethiopia v. South Africa; Liberia v. South
Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328).
In order to determine, even prima facie, whether a dispute exists, the
Court “cannot limit itself to noting that one of the Parties maintains that
the Convention applies, while the other denies it” (Immunities and Crim-
inal Proceedings (Equatorial Guinea v. France), Provisional Measures,
Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1155, para. 47).
Since Ukraine has invoked as a basis for the Court’s jurisdiction the com-
promissory clauses in two international conventions, the Court must
ascertain whether “the acts complained of by [the Applicant] are prima
facie capable of falling within the provisions of [those] instrument[s]
and . . . as a consequence, the dispute is one which the Court has juris-
diction ratione materiae to entertain” (ibid.).

   23. At this stage of the proceedings, the Court must examine (1)
whether the record shows a disagreement on a point of law or fact
between the two States; and (2) whether that disagreement concerns “the
interpretation or application” of the respective convention, as required by
Article 24, paragraph 1, of the ICSFT and Article 22 of CERD.

(a) The International Convention for the Suppression of the Financing of
    Terrorism
   24. Ukraine asserts that “[a] dispute has plainly arisen concerning the
interpretation and application of the Terrorism Financing Convention”.

                                                                        15

          application of the icsft and cerd (ord. 19 IV 17)              116

Ukraine states that in a diplomatic Note dated 28 July 2014, it “gave
notice that it considered the Russian Federation to be violating the Ter-
rorism Financing Convention” and that it continued, repeatedly, to
inform the Russian Federation of the nature of its claims. According to
Ukraine, “both by word and deed, the Russian Federation has made it
abundantly clear that it disputes Ukraine’s claims”.

   25. Ukraine contends that, in the eastern part of its territory, since the
spring of 2014, the Russian Federation has systematically supplied “ille-
gal armed groups”, such as the “Donetsk People’s Republic” (DPR), the
“Luhansk People’s Republic” (LPR), the “Partisans of the Kharkiv
People’s Republic”, and associated groups and individuals, with heavy
weaponry, money, personnel, training, and by giving other backing. That
assistance, according to Ukraine, has been used not only to support com-
bat against the Ukrainian authorities, but also to conduct terrorist attacks
against civilians, within the meaning of Article 2, paragraph 1 (a) and
(b), of the ICSFT, such as the shelling of civilians in Volnovakha, Kram-
atorsk and Mariupol, the bombing of a peaceful rally in support of
national unity in Kharkiv and the shooting-down of Malaysia Airlines
Flight MH17. Ukraine contends that the deﬁnition of funds contained in
the ICSFT is “extremely broad” and includes in particular such weapons
as those which it maintains have been provided by the Russian Feder-
ation. Ukraine adds that the Russian Federation knew that the “illegal
armed groups” supported by it were perpetrating acts of terrorism. It also
asserts that the obligation contained in Article 18 (see paragraph 72
below) to co-operate in the prevention of the ﬁnancing of terrorism “is a
broad one” and includes the obligation to take all practicable measures to
prevent individuals from providing or collecting funds for terrorism as
well as the State obligation not to ﬁnance terrorism directly. It claims that
the Russian Federation has failed to co-operate in the prevention of
ﬁnancing acts of terrorism, and has “unlawfully ﬁnanced terrorism
directly” in violation of Article 18 of the ICSFT.

                                     *
  26. The Russian Federation denies that there is any dispute between
the Parties as to the interpretation and application of the ICSFT.
Although it agrees that, during the conﬂict which started in spring 2014,
instances of alleged indiscriminate shelling and other humanitarian law
violations by both sides have been reported, it considers that these acts
are not capable of falling within the deﬁnition of acts of terrorism pro-
vided for in Article 2, paragraph 1, of the Convention (see paragraph 73
below). The Russian Federation contends that no international body or
organization seised of the current situation in eastern Ukraine has quali-

                                                                          16

           application of the icsft and cerd (ord. 19 IV 17)               117

ﬁed the ongoing hostilities in terms of terrorism. It further contends that
Ukraine has failed to submit any document from any international
organization or any State other than Ukraine itself, characterizing the
acts of the DPR and the LPR as acts of terrorism. The Russian Federation
adds that most of the civilian casualties are in the territories under the
control of the DPR and the LPR, and that multiple sources report that
Ukrainian armed forces are themselves responsible for numerous acts of
indiscriminate shelling, starting with the shelling of residential areas
in Slavyansk in May 2014, where many civilians were killed and wounded
by the shelling by Ukrainian armed forces, while residential buildings,
hospitals and infrastructures were destroyed or damaged. In respect of
the allegations regarding the shooting-down of Malaysia Airlines
Flight MH17, the Russian Federation argues that the evidence does not
suggest that any funds were provided with the intent or knowledge that
they were to be used for acts of terrorism against civilians.

  27. The Russian Federation claims that, in any event, the ICSFT
obliges States to co-operate in the prevention and punishment of the
ﬁnancing by private actors of terrorist activities, but that it does not cover
matters of State responsibility for the ﬁnancing of such activities by the
State itself. It contends that the text of the Convention, its drafting his-
tory, as well as subsequent practice, conﬁrm that it was only meant to
address State obligations with respect to private actors, rather than
broadly regulating issues of a State’s responsibility for its own acts. It fol-
lows that, in the opinion of the Russian Federation, purported instances
of a State itself allegedly ﬁnancing acts of terrorism as deﬁned by the
Convention do not fall within the jurisdiction provided for in Article 24
of the Convention.

   28. More speciﬁcally, the Russian Federation argues that the duty to
prevent, as laid down in Article 18 of the ICSFT, is signiﬁcantly limited
in various respects. First, States are only under an obligation to co-
operate in the prevention of the speciﬁc acts of ﬁnancing criminalized by
the Convention. Article 18 of the Convention does not contain an obliga-
tion per se to prevent such acts. Secondly, the obligation is limited
to co-operation in the prevention of “preparations in [the] respective
territories” of States parties for the commission of acts prohibited by
the Convention. Thirdly, a State party to the Convention may only be
held responsible for breaching Article 18 if the acts prohibited by the
Convention have actually been committed.

                                     * *
   29. The Court considers that, as it appears from the record of the pro-
ceedings, the Parties diﬀer on the question of whether the events which
occurred in eastern Ukraine starting from the spring of 2014 have given
rise to issues relating to their rights and obligations under the ICSFT.

                                                                            17

           application of the icsft and cerd (ord. 19 IV 17)               118

The Court notes that Ukraine contends that the Russian Federation has
failed to respect its obligations under Articles 8, 9, 10, 11, 12 and 18. In
particular, Ukraine maintains that the Russian Federation has failed to
take appropriate measures to prevent the ﬁnancing of terrorism in
Ukraine by public and private actors on the territory of the Russian Fed-
eration and that it has repeatedly refused to investigate, prosecute, or
extradite “oﬀenders within its territory brought to its attention by
Ukraine”. The Russian Federation positively denies that it has committed
any of the violations set out above.

   30. The Court must ascertain whether the acts of which Ukraine
complains are prima facie capable of falling within the provisions of the
Convention (see paragraph 22 above). The Court considers that at least
some of the allegations made by Ukraine (see paragraph 29 above) appear
to be capable of falling within the scope of the ICSFT ratione materiae.
   31. In the view of the Court, the above-mentioned elements are suﬃ-
cient at this stage to establish prima facie the existence of a dispute between
the Parties concerning the interpretation and application of the ICSFT.
During the hearings, the question of the deﬁnition of “funds” in Article 1,
paragraph 1, of the Convention (see paragraph 73 below) was raised. The
question was also raised whether acts of ﬁnancing of terrorist activities by
the State itself fall within the scope of the Convention. For the purposes of
determining the existence of a dispute relating to the Convention, the
Court does not need to make any pronouncement on these issues.

(b) The International Convention on the Elimination of All Forms of Racial
    Discrimination
   32. Ukraine claims that a dispute exists between the Parties con-
cerning the interpretation and application of CERD. In particular, it
asserts that the Russian Federation, by discriminating against Crimean
Tatars and ethnic Ukrainians in Crimea, has violated provisions of
this Convention.
   33. Ukraine contends that, following the purported annexation of the
Crimean peninsula in March 2014, the Russian Federation has used its
control over this territory to impose a policy of Russian ethnic domin-
ance, “pursuing the cultural erasure of non-Russian communities through
a systematic and ongoing campaign of discrimination”.
   34. With regard to the Crimean Tatar community, Ukraine argues that
the Russian Federation has suppressed its political leaders and institu-
tions — having, in particular, “outlawed the Mejlis, the central self-
governing institution of Crimean Tatar life” — and has “prevented
important cultural gatherings, perpetrated a régime of disappearances
and murders, conducted a campaign of arbitrary searches and detentions,
silenced media voices, and suppressed educational rights”. Ukraine alleges
that, “[j]ust recently, eleven Crimean Tatars who were peacefully protest-
ing against arbitrary searches were forcefully detained”. With regard to

                                                                            18

          application of the icsft and cerd (ord. 19 IV 17)              119

ethnic Ukrainians living in Crimea, Ukraine states that the Russian
Federation has restricted their educational rights and ability to maintain
their language and culture, and imposed discriminatory limitations on
ethnic Ukrainian media in the peninsula.

                                     *
   35. The Russian Federation contends that there is no dispute between
the Parties concerning the interpretation or application of CERD. It
claims that Ukraine has failed to demonstrate that, prima facie, the
alleged facts constitute violations of the provisions of the Convention. It
asserts, in particular, that the Applicant has not demonstrated that the
searches, preventive measures or criminal proceedings undertaken by the
Crimean authorities against certain people of Tatar or Ukrainian origin
were applied in a discriminatory manner on the basis of the racial or
ethnic origin of those concerned. In its view, neither has Ukraine estab-
lished that the Russian authorities were engaged in a systematic prac-
tice of forced disappearances and murders motivated by racial or
ethnic considerations.
   36. The Russian Federation further contests Ukraine’s allegations that
the educational rights of the Tatar and Ukrainian communities have been
restricted. It claims, for instance, that the Crimean Federal University
recognizes the Ukrainian and Tatar languages as languages of instruc-
tion, and that there are a dozen schools that oﬀer Ukrainian-language
education. The Russian Federation also disagrees with Ukraine’s asser-
tion that the Respondent has been seeking to silence the Tatar and Ukrain-
ian media in Crimea. It argues that more than 80 radio stations, television
channels and newspapers in the Ukrainian and Tatar languages are regis-
tered in Crimea today and that only a few media outlets in those two lan-
guages were not registered, on the ground that their application ﬁle was
incomplete. The Russian Federation further denies that it has suppressed
the political leaders and institutions of the Tatar and Ukrainian commu-
nities. With respect to the Mejlis, the Russian Federation claims that it
has been wrongly characterized by Ukraine as “the central self-governing
institution of Crimean Tatar life”: it is not the only representative body of
the Crimean Tatars. It adds that, in any event, the decision to ban the
Mejlis was taken on security grounds and for public order reasons and
bore no relation to the ethnicity of its members.

                                    * *
   37. The Court considers that, as evidenced by the documents placed
before the Court, the Parties diﬀer on the question of whether the events
which occurred in Crimea starting from late February 2014 have given
rise to issues relating to their rights and obligations under CERD.

                                                                          19

          application of the icsft and cerd (ord. 19 IV 17)             120

The Court notes that Ukraine has claimed that the Russian Federation
violated its obligations under this Convention by systematically
discriminating against and mistreating the Crimean Tatars and ethnic
Ukrainians in Crimea, suppressing the political and cultural expression of
Crimean Tatar identity, banning the Mejlis, preventing Crimean Tatars
and ethnic Ukrainians from gathering to celebrate and commemorate
important cultural events, and by suppressing the Crimean Tatar lan-
guage and Ukrainian-language education. The Russian Federation has
positively denied that it has committed any of the violations set out
above.
   38. The acts referred to by Ukraine, in particular the banning of the
Mejlis and the alleged restrictions upon the cultural and educational
rights of Crimean Tatars and ethnic Ukrainians, appear to be capable of
falling within the scope of CERD ratione materiae.

   39. In the view of the Court, the above-mentioned elements are suﬃ-
cient at this stage to establish prima facie the existence of a dispute
between the Parties concerning the interpretation and application of
CERD.

                       3. Procedural Preconditions
   40. The ICSFT and CERD set out procedural preconditions to be ful-
ﬁlled before the seisin of the Court.
   41. Under Article 24, paragraph 1, of the ICSFT (see paragraph 20
above), a dispute that “cannot be settled through negotiation within a
reasonable time” shall be submitted to arbitration at the request of one of
the parties and it may be referred to the Court only if the parties are
unable to agree on the organization of the arbitration within six months
from the date of the request.
   42. Under Article 22 of CERD (see paragraph 21 above), the dispute
referred to the Court must be a dispute “not settled by negotiation or by
the procedures expressly provided for in this Convention”. In addition,
Article 22 states that the dispute may be referred to the Court at the
request of one of the parties thereto only if the parties have not agreed to
another mode of settlement. The Court notes that neither Party contests
that this latter condition is fulﬁlled in the case.

   43. Regarding the negotiations to which both compromissory clauses
refer, the Court observes that negotiations are distinct from mere protests
or disputations and require a genuine attempt by one of the parties to
engage in discussions with the other party, with a view to resolving the
dispute. Where negotiations are attempted or have commenced, the pre-
condition of negotiation is only met when the attempt to negotiate has been
unsuccessful or where negotiations have failed, become futile or dead-
locked. In order to meet the precondition of negotiation contained in the
compromissory clause of a treaty, “the subject-matter of the negotiations

                                                                         20

          application of the icsft and cerd (ord. 19 IV 17)             121

must relate to the subject-matter of the dispute which, in turn, must con-
cern the substantive obligations contained in the treaty in question” (see
Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation), Preliminary
Objections, Judgment, I.C.J. Reports 2011 (I), pp. 132-133, paras. 157-161).

   44. At this stage of the proceedings, the Court ﬁrst has to assess
whether it appears that Ukraine genuinely attempted to engage in nego-
tiations with the Russian Federation, with a view to resolving their dis-
pute concerning the latter’s compliance with its substantive obligations
under the ICSFT and CERD, and whether Ukraine pursued these nego-
tiations as far as possible.
   45. With regard to the dispute under the ICSFT, if the Court ﬁnds that
negotiations took place but failed, it will also have to examine whether,
prior to the seisin of the Court, Ukraine attempted to settle this dispute
through arbitration, under the conditions provided for in Article 24,
paragraph 1, of the Convention.
   46. With regard to CERD, along with the precondition of negotiation,
Article 22 includes another precondition, namely the use of “the pro-
cedures expressly provided for in the Convention”. In this context, the
Court will need to determine whether, for the purposes of its decision on
the Request for the indication of provisional measures, it is necessary to
examine the question of the relationship between both preconditions and
Ukraine’s compliance with the second one.

(a) The International Convention for the Suppression of the Financing of
    Terrorism
   47. Regarding the procedural conditions set out in Article 24, para-
graph 1, of the ICSFT, Ukraine contends that during a period of two years
it has made “eﬀorts to negotiate a resolution to the dispute” with the
Russian Federation, including the exchange of more than 40 diplomatic
Notes and participation in four rounds of bilateral negotiations. Accord-
ing to Ukraine, the Russian Federation “largely failed to respond to
Ukraine’s correspondence, declined to engage on the substance of the
dispute, and consistently failed to negotiate in a constructive manner”,
arguing that Ukraine’s claims did not raise issues under the ICSFT.
Ukraine contends that it therefore became apparent that the dispute
could not be settled by way of negotiations within a reasonable time, and
that further negotiations would be futile. Consequently, by a Note
Verbale dated 19 April 2016, Ukraine suggested to the Russian Feder-
ation that the dispute be submitted to arbitration, pursuant to Article 24,
paragraph 1, of the ICSFT.

   48. Ukraine explains that it was more than two months before the
Russian Federation agreed to discuss the arbitration. Ukraine asserts that
in August 2016 it informed the Russian Federation of its views on how an

                                                                         21

          application of the icsft and cerd (ord. 19 IV 17)              122

arbitration should be organized. It indicates that it was only in October
2016 that the Russian Federation stated “clearly its intent to participate
in an arbitration if the Parties reached agreement on its organization”
and presented a partial counter-proposal. Ukraine contends that it con-
tinued to meet with the Russian Federation and engaged in diplomatic
exchanges in an attempt to reach agreement on the organization of the
arbitration. According to Ukraine, however, no agreement could be
reached. Ukraine contends that the main reasons why the Parties were
unable to agree upon arbitration were that there had been months of
delay on the part of the Russian Federation and a divergence of views on
various important issues. Because more than six months had passed since
Ukraine’s request for arbitration without the Parties reaching agreement
on the organization of the arbitration, Ukraine claims that the procedural
conditions of Article 24, paragraph 1, of the ICSFT had been met when
it seised the Court.

                                     *
   49. The Russian Federation, for its part, claims that Ukraine has not
fulﬁlled its obligation to negotiate, as required by Article 24 of the ICSFT.
It contends, in particular, that Ukraine did not negotiate in good faith as
to the substance of its claim that the Russian Federation had allegedly
violated its obligations under the Convention; and that it did not make a
bona ﬁde eﬀort to try to set up an arbitral tribunal.

   50. With respect to its ﬁrst argument, the Russian Federation
explains that, throughout the exchange of diplomatic Notes, Ukraine
constantly insisted on its own position without showing any willingness
to engage in a meaningful discussion with the Russian Federation on
relevant issues. In particular, it contends, Ukraine consistently put for-
ward allegations that went well beyond the scope of the Convention.
The Russian Federation asserts that nearly all of Ukraine’s diplomatic
Notes, which were meant to address issues arising under the Convention,
were closely interwoven with accusations against the Russian Federa-
tion regarding the prohibition of the use of force. The Russian Federation
claims to have requested, on several occasions, that Ukraine provide
evidentiary material and comprehensive information and data in order to
be able to verify Ukraine’s claims. The Russian Federation states that,
should such elements have substantiated Ukraine’s claims, it would
have then taken the appropriate measures as required by the Conven-
tion. However, Ukraine did not follow up on such requests, thereby
rendering pointless the further round of negotiations that had been
envisaged.
   51. With respect to its second argument, the Russian Federation states,
in particular, that Ukraine has never submitted concrete proposals for an
arbitration agreement. According to the Russian Federation, resorting to
an ad hoc chamber of this Court as proposed by Ukraine could not qual-

                                                                          22

          application of the icsft and cerd (ord. 19 IV 17)            123

ify as arbitration within the meaning of Article 24 of the ICSFT. In the
Respondent’s view, it was the Russian Federation which submitted full
drafts for an arbitration agreement, as well as draft rules of procedure
with a view to addressing the concerns of Ukraine. The Russian Feder-
ation adds that it never received any speciﬁc comments from Ukraine on
its draft arbitration agreement.

                                   * *
   52. The Court notes that it appears from the record of the proceedings
that issues relating to the application of the ICSFT with regard to the
situation in eastern Ukraine have been raised in bilateral contacts and
negotiations between the Parties. In particular, Ukraine addressed a
diplomatic Note to the Russian Federation on 28 July 2014 in which it
alleged that the latter was violating its obligations under the ICSFT. By
means of a diplomatic Note of 15 October 2015, the Russian Federation
denied the claims being made by Ukraine. Further diplomatic exchanges
followed, in which Ukraine speciﬁcally referred to alleged breaches by the
Russian Federation of its obligations under the ICSFT. Over a period of
two years, the Parties also held four in-person negotiating sessions
speciﬁcally addressed to the ICSFT.

   These facts demonstrate that, prior to the ﬁling of the Application,
Ukraine and the Russian Federation had engaged in negotiations con-
cerning the latter’s compliance with its substantive obligations under the
ICSFT. It appears from the facts on the record that these issues could not
then be resolved by negotiations.
   53. With regard to the precondition relating to the submission of the
dispute to arbitration, the Court notes that by a Note Verbale dated
19 April 2016 Ukraine submitted a request for arbitration to the Russian
Federation. The Russian Federation responded by means of a Note Ver-
bale dated 23 June 2016, in which it oﬀered to discuss “issues concerning
setting up” the arbitration at a meeting it suggested should be held a
month later. By a Note Verbale dated 31 August 2016 Ukraine proposed
to the Russian Federation to resort to the mechanism of an ad hoc Cham-
ber of this Court. In its Note Verbale to Ukraine, dated 3 October 2016,
the Russian Federation rejected this proposal and submitted its own draft
arbitration agreement and accompanying rules of procedure. At a meet-
ing on 18 October 2016, the Parties discussed the organization of the
arbitration but no agreement was reached. Further exchanges between
the Parties did not resolve the impasse. It appears that, within six months
from the date of the arbitration request, the Parties were unable to reach
an agreement on its organization.
   54. The above-mentioned elements are suﬃcient at this stage to estab-
lish, prima facie, that the procedural preconditions under Article 24,
paragraph 1, of the ICSFT for the seisin of the Court have been met.

                                                                        23

           application of the icsft and cerd (ord. 19 IV 17)              124

(b) The International Convention on the Elimination of All Forms of Racial
    Discrimination
   55. Regarding the procedural conditions set out in Article 22 of CERD,
Ukraine contends that it “has made extensive eﬀorts to negotiate a reso-
lution to the dispute, including the exchange of more than 20 diplomatic
Notes and participation in three rounds of bilateral negotiation sessions”.
Ukraine refers, in particular, to a diplomatic Note dated 23 September
2014, in which it “brought a series of violations of the CERD to Russia’s
attention”. However, Ukraine states that the Russian Federation largely
failed to respond to Ukraine’s correspondence, declined to engage on the
substance of the dispute, and consistently failed to negotiate in a con-
structive manner. It failed to engage in detailed discussions of the claims
presented by Ukraine, and avoided substantive discussions of the relevant
issues. According to Ukraine, during the three bilateral negotiation ses-
sions held in Minsk to try to settle the dispute, the “Russian Federation
never provided straight and speciﬁc responses on the issues raised”.
Ukraine alleges that, at the same time as it was refusing to engage in a
meaningful discussion of issues of discrimination in Crimea, the Russian
Federation was continuing and intensifying its pattern of discrimination
against Crimean Tatars and ethnic Ukrainians in Crimea. It therefore
became apparent that “further negotiations would be futile, and preju-
dicial to the people living under a discriminatory occupation régime”.
According to Ukraine, the procedural conditions of Article 22 of CERD
have thus been complied with.
   56. Ukraine further states that the Russian Federation is wrong in
claiming that Ukraine was obliged both to exhaust bilateral negotiations,
and to attempt proceedings before the Committee on the Elimination of
Racial Discrimination established under the Convention (hereinafter the
“CERD Committee”). In any event, whether or not the preconditions of
Article 22 of CERD are cumulative, is not, according to Ukraine, a mat-
ter for the current stage of the proceedings, which only requires a ﬁnding
of prima facie jurisdiction.

                                      *
   57. The Russian Federation, for its part, claims that none of the pro-
cedural conditions set out in Article 22 of CERD has been fulﬁlled by
Ukraine. First, it contends that there is no evidence of a “genuine attempt
to negotiate”. Although the Respondent acknowledges that, for two and
a half years, exchanges have taken place between the Parties, in the form
of Notes Verbales and three rounds of meetings, it contends that Ukraine
has merely placed on record a certain number of accusations that have
constantly shifted from one Note Verbale to the next, rendering it impos-
sible to establish the positions of the two Parties on the questions at issue.
Secondly, the Russian Federation observes that Ukraine did not refer its
claims to the CERD Committee, whereas Articles 11 to 13 of the Conven-

                                                                           24

          application of the icsft and cerd (ord. 19 IV 17)              125

tion establish a speciﬁc procedure for bringing State-to-State complaints
before this Committee. It adds that, in the exchange of diplomatic Notes,
it had expressly recalled to the Applicant, on 27 November 2014, that it
should follow this procedure. It recalls that the Committee can trigger an
urgent action procedure when a situation requires “immediate attention
to prevent or limit the scale or number of serious violations of the Con-
vention”.
   58. The Russian Federation is of the view that the two preconditions
in Article 22 of CERD — namely, recourse to negotiations and to the
procedures expressly provided for in the Convention — are cumulative. It
observes that the Court has recognized in its jurisprudence that, at the
time CERD was being elaborated, the idea of submitting to the compul-
sory settlement of disputes by the Court was not readily acceptable to a
number of States, which explains why additional limitations to resort to
judicial settlement — in the form of prior negotiations and other settle-
ment procedures without time-limits — were provided for with a view to
facilitating wider acceptance of CERD by States.

                                    * *
   59. The Court recalls that it has earlier concluded that the terms of
Article 22 of CERD established preconditions to be fulﬁlled before the
seisin of the Court (see Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I),
p. 128, para. 141). It notes that, as evidenced by the record of the
proceedings, issues relating to the application of CERD with regard to
the situation in Crimea have been raised in bilateral contacts and negoti-
ations between the Parties, which have exchanged numerous diplo-
matic Notes and held three rounds of bilateral negotiations on
this subject. These facts demonstrate that, prior to the ﬁling of the Appli-
cation, Ukraine and the Russian Federation engaged in negotiations
regarding the question of the latter’s compliance with its substantive obli-
gations under CERD. It appears from the record that these issues
had not been resolved by negotiations at the time of the ﬁling of the
Application.
   60. Article 22 of CERD also refers to “the procedures expressly pro-
vided for” in the Convention. According to Article 11 of the Convention,
“[i]f a State Party considers that another State Party is not giving eﬀect to
the provisions of this Convention”, the matter may be brought to the
attention of the CERD Committee. Neither Party claims that the issues in
dispute have been brought to the attention of the CERD Committee.
Although both Parties agree that negotiations and recourse to the pro-
cedures referred to in Article 22 of CERD constitute preconditions to be
fulﬁlled before the seisin of the Court, they disagree as to whether these
preconditions are alternative or cumulative. The Court considers that it

                                                                          25

           application of the icsft and cerd (ord. 19 IV 17)              126

need not make a pronouncement on the issue at this stage of the proceed-
ings. Consequently the fact that Ukraine did not bring the matter before
the CERD Committee does not prevent the Court from concluding that
it does have prima facie jurisdiction.
   61. The Court considers, in view of all the foregoing, that the pro-
cedural preconditions under Article 22 of CERD for the seisin of the
Court have, prima facie, been complied with.

               4. Conclusion as to Prima Facie Jurisdiction
  62. In light of the foregoing, the Court considers that, prima facie, it
has jurisdiction pursuant to Article 24, paragraph 1, of the ICSFT and
Article 22 of CERD to deal with the case to the extent that the dispute
between the Parties relates to the “interpretation or application” of the
respective Convention.

             II. The Rights Whose Protection Is Sought
                     and the Measures Requested

                          1. General Introduction
   63. The power of the Court to indicate provisional measures under
Article 41 of the Statute has as its object the preservation of the respective
rights claimed by the parties in a case, pending its decision on the merits
thereof. It follows that the Court must be concerned to preserve by such
measures the rights which may subsequently be adjudged by it to belong
to either party. Therefore, the Court may exercise this power only if it is
satisﬁed that the rights asserted by the party requesting such measures are
at least plausible (see, for example, Immunities and Criminal Proceedings
(Equatorial Guinea v. France), Provisional Measures, Order of 7 Decem-
ber 2016, I.C.J. Reports 2016 (II), p. 1165, para. 71).
   64. At this stage of the proceedings, the Court, however, is not called
upon to determine deﬁnitively whether the rights which Ukraine wishes to
see protected exist; it need only decide whether the rights claimed by
Ukraine on the merits, and for which it is seeking protection, are
plausible (see, for example, ibid., p. 1167, para. 78). Moreover, a link
must exist between the rights whose protection is sought and the provi-
sional measures being requested (ibid., p. 1166, para. 72).

           2. The International Convention for the Suppression
                      of the Financing of Terrorism
   65. In its Application, Ukraine asserts rights under Articles 8, 9, 10,
11, 12 and 18 of the ICSFT. However, for the purposes of its Request for
the indication of provisional measures, in order to identify the rights
which it seeks to protect pending the decision on the merits, Ukraine
relies exclusively upon Article 18 of the ICSFT.

                                                                           26

           application of the icsft and cerd (ord. 19 IV 17)              127

   66. Ukraine submits that, under Article 18 of the ICSFT, it has a right
to the Russian Federation’s co-operation in preventing the ﬁnancing of
terrorism, i.e., the provision or collection of funds with the intention that
they should be used, or in the knowledge that they will be used, in order
to carry out acts of terrorism deﬁned in Article 2, paragraphs 1 (a) and
1 (b) of the Convention. As examples of such acts, committed on its ter-
ritory, Ukraine refers, in particular, to (a) the bombing of peaceful
marchers in Kharkiv; (b) the bombardment of Mariupol; (c) the attacks
on Volnovakha and Kramatorsk; and (d) the shooting-down of Malaysia
Airlines Flight MH17, all of which, according to the Applicant, plausibly
involved an “intent to cause death or serious injury to civilians” and had
a plausible purpose “to intimidate a population”.

   67. Ukraine contends that a state of armed conﬂict does not exclude
the application of the ICSFT. According to Ukraine, international
humanitarian law is not the only relevant law applicable in situations of
armed conﬂict. The ICSFT also applies in such situations, as long as
those attacked are not actively engaged in armed conﬂict. Civilians living
far from conﬂict zones who are not taking an active part in hostilities can
be victims of terrorist attacks ﬁnanced by external suppliers of war
materiel. Ukraine argues that the obligations under the ICSFT are
diﬀerent from those under international humanitarian law, because that
convention addresses the ﬁnancing of terrorism, “a topic not covered
at all by the laws governing armed conﬂict”.

  68. Ukraine maintains that, given the evidence before the Court, “it is
far more than simply ‘plausible’” that the Russian Federation has engaged
and continues to engage in prohibited behaviour under the ICSFT.
Ukraine states that various “highly credible international organizations”
have found that the Russian Federation “has ﬁnanced its proxies in
Ukraine for many years”. In this regard, Ukraine refers, inter alia, to the
reports of the Special Monitoring Mission of the Organization for
Security and Co-operation in Europe (OSCE) detailing multiple military
convoys of tanks, armoured personnel carriers, and heavy artillery,
moving from Russian territory across the Ukrainian border.

                                      *
   69. The Russian Federation claims that the speciﬁc rights claimed by
Ukraine under the ICSFT are not plausible. In particular, referring to the
right to co-operation under Article 18 of the Convention, which is “the
sole right that Ukraine asserts with respect to the Request”, it explains
that this right is linked to the existence of ﬁnancing of acts of terrorism as
speciﬁed in Article 2. However, according to the Russian Federation,
there is no plausible allegation of acts of terrorism under the Convention,

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          application of the icsft and cerd (ord. 19 IV 17)              128

committed on the territory of Ukraine. The Respondent contends that
the civilian casualties referred to by Ukraine in its Request were caused
by indiscriminate shelling of areas controlled by both sides, and not by
acts of terrorism within the meaning of Article 2. In this regard, it adds
that Ukraine’s own evidence shows that the Applicant has equally
engaged in these acts.

   70. The Russian Federation asserts that Ukraine has mischaracterized
the nature of the case by erroneously seeking to invoke the ICSFT.
According to the Russian Federation, the facts at hand fall directly within
the scope of international humanitarian law. The Respondent points out
that reports on human rights prepared by organizations such as the Oﬃce
of the United Nations High Commissioner for Human Rights (OHCHR),
the OSCE and the International Committee of the Red Cross (ICRC)
refer to the need to “respect international humanitarian law” and to “vio-
lations of the [international humanitarian law] principles of distinction,
proportionality and precaution”, but never characterize such acts as acts
of terrorism. The Russian Federation states that incidents of attacks in
residential areas are not plausibly governed by the ICSFT and that, by
contrast, international humanitarian law is self-evidently relevant.
   71. According to the Russian Federation, ﬁrst, it cannot have breached
its obligations under Article 18 of the ICSFT, since it has not been dem-
onstrated that the armed groups in eastern Ukraine were engaging in acts
of terrorism. Secondly the Russian Federation recalls its position that the
ICSFT obliges States to co-operate in the punishment and prevention of
the ﬁnancing by private actors of terrorist activities. In any event, it con-
tends that there is no plausible allegation that it ﬁnanced terrorism within
the meaning of Article 2, paragraph 1, of the ICSFT. It recalls that Arti-
cle 2 is concerned solely with funds supplied with the knowledge or intent
that they are to be used for acts of terrorism, and that no evidence has
been adduced that the Russian Federation purposefully provided funds
for the commission of alleged terrorist acts.

                                    * *
  72. The Court notes that the ICSFT imposes a number of obligations
on States parties with regard to the prevention and suppression of the
ﬁnancing of terrorism. However, for the purposes of its Request for the
indication of provisional measures, Ukraine invokes its rights and the
respective obligations of the Russian Federation solely under Article 18
of the Convention, which reads as follows:
       “1. States Parties shall co-operate in the prevention of the oﬀences
    set forth in article 2 by taking all practicable measures, inter alia, by
    adapting their domestic legislation, if necessary, to prevent and coun-

                                                                          28

      application of the icsft and cerd (ord. 19 IV 17)                129

ter preparations in their respective territories for the commission of
those oﬀences within or outside their territories, including:
(a) Measures to prohibit in their territories illegal activities of persons
    and organizations that knowingly encourage, instigate, organize
    or engage in the commission of oﬀences set forth in article 2;

(b) Measures requiring ﬁnancial institutions and other professions
    involved in ﬁnancial transactions to utilize the most eﬃcient
    measures available for the identiﬁcation of their usual or
    occasional customers, as well as customers in whose interest
    accounts are opened, and to pay special attention to unusual or
    suspicious transactions and report transactions suspected of stem-
    ming from a criminal activity. For this purpose, States Parties
    shall consider:
     (i) Adopting regulations prohibiting the opening of accounts
         the holders or beneﬁciaries of which are unidentiﬁed or
         unidentiﬁable, and measures to ensure that such institutions
         verify the identity of the real owners of such transactions;

     (ii) With respect to the identiﬁcation of legal entities, requiring
          ﬁnancial institutions, when necessary, to take measures to
          verify the legal existence and the structure of the customer by
          obtaining, either from a public register or from the customer
          or both, proof of incorporation, including information con-
          cerning the customer’s name, legal form, address, directors
          and provisions regulating the power to bind the entity;

    (iii) Adopting regulations imposing on ﬁnancial institutions the
          obligation to report promptly to the competent authorities all
          complex, unusual large transactions and unusual patterns of
          transactions, which have no apparent economic or obviously
          lawful purpose, without fear of assuming criminal or civil
          liability for breach of any restriction on disclosure of infor-
          mation if they report their suspicions in good faith;

    (iv) Requiring ﬁnancial institutions to maintain, for at least
         ﬁve years, all necessary records on transactions, both domes-
         tic or international.
  2. States Parties shall further co-operate in the prevention of
oﬀences set forth in article 2 by considering:
(a) Measures for the supervision, including, for example, the licens-
    ing, of all money-transmission agencies;

(b) Feasible measures to detect or monitor the physical cross-border
    transportation of cash and bearer negotiable instruments,
    subject to strict safeguards to ensure proper use of information

                                                                        29

          application of the icsft and cerd (ord. 19 IV 17)                130

        and without impeding in any way the freedom of capital
        movements.

       3. States Parties shall further co-operate in the prevention of the
    oﬀences set forth in article 2 by exchanging accurate and veriﬁed
    information in accordance with their domestic law and co-ordinating
    administrative and other measures taken, as appropriate, to prevent
    the commission of oﬀences set forth in article 2, in particular by:

    (a) Establishing and maintaining channels of communication between
        their competent agencies and services to facilitate the secure and
        rapid exchange of information concerning all aspects of oﬀences
        set forth in article 2;
    (b) Co-operating with one another in conducting inquiries, with
        respect to the oﬀences set forth in article 2, concerning:
          (i) The identity, whereabouts and activities of persons in respect
              of whom reasonable suspicion exists that they are involved in
              such oﬀences;
         (ii) The movement of funds relating to the commission of such
              oﬀences.
      4. States Parties may exchange information through the Inter-
    national Criminal Police Organization (Interpol).”

  73. Article 18 should be read together with Article 2 of the ICSFT
because under Article 18 States parties must co-operate in the prevention
of the oﬀences set forth in Article 2, which reads as follows:
       “1. Any person commits an oﬀence within the meaning of this Con-
    vention if 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:
    (a) An act which constitutes an oﬀence within the scope of and as
         deﬁned in one of the treaties listed in the annex; or
    (b) Any other act intended to cause death or serious bodily injury to
         a civilian, or to any other person not taking an active part in the
         hostilities in a situation of armed conﬂict, when the purpose of
         such act, by its nature or context, is to intimidate a population,
         or to compel a government or an international organization to do
         or to abstain from doing any act
     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
      3. For an act to constitute an oﬀence set forth in paragraph 1, it
    shall not be necessary that the funds were actually used to carry out
    an oﬀence referred to in paragraph 1, subparagraphs (a) or (b).

                                                                             30

          application of the icsft and cerd (ord. 19 IV 17)              131

      4. Any person also commits an oﬀence if that person attempts to
    commit an oﬀence as set forth in paragraph 1 of this article.
      5. Any person also commits an oﬀence if that person:
    (a) Participates as an accomplice in an oﬀence as set forth in para-
        graph 1 or 4 of this article;
    (b) Organizes or directs others to commit an oﬀence as set forth in
        paragraph 1 or 4 of this article;

    (c) Contributes to the commission of one or more oﬀences as set
        forth in paragraphs 1 or 4 of this article by a group of persons
        acting with a common purpose. Such contribution shall be inten-
        tional and shall either:
          (i) Be made with the aim of furthering the criminal activity or
              criminal purpose of the group, where such activity or purpose
              involves the commission of an oﬀence as set forth in para-
              graph 1 of this article; or
         (ii) Be made in the knowledge of the intention of the group to
              commit an oﬀence as set forth in paragraph 1 of this article.”
Under Article 1, paragraph 1, of the Convention, the notion of “funds”
which Article 2 refers to
    “means 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 and letters of credit”.

   74. Thus, the obligations under Article 18 and the corresponding rights
are premised on the acts identiﬁed in Article 2, namely the provision or
collection of funds with the intention that they should be used or in
the knowledge that they are to be used in order to carry out acts set out
in paragraphs 1 (a) and 1 (b) of this Article. Consequently, in the
context of a request for the indication of provisional measures, a State
party to the Convention may rely on Article 18 to require another State
party to co-operate with it in the prevention of certain types of acts only
if it is plausible that such acts constitute oﬀences under Article 2 of the
ICSFT.
   75. In the present case, the acts to which Ukraine refers (see para-
graph 66 above) have given rise to the death and injury of a large number
of civilians. However, in order to determine whether the rights for which
Ukraine seeks protection are at least plausible, it is necessary to ascertain
whether there are suﬃcient reasons for considering that the other elements
set out in Article 2, paragraph 1, such as the elements of intention
or knowledge noted above (see paragraph 74), and the element of

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          application of the icsft and cerd (ord. 19 IV 17)             132

purpose speciﬁed in Article 2, paragraph 1 (b), are present. At this stage
of the proceedings, Ukraine has not put before the Court evidence which
aﬀords a suﬃcient basis to ﬁnd it plausible that these elements are
present.

   76. Therefore, the Court concludes that the conditions required for the
indication of provisional measures in respect of the rights alleged by
Ukraine on the basis of the ICSFT are not met.
   77. The above conclusion is without prejudice to the Parties’ obliga-
tion to comply with the requirements of the ICSFT, and, in particular,
Article 18 thereof.

    3. The International Convention on the Elimination of All Forms
                        of Racial Discrimination
   78. In its Application, Ukraine asserts rights under Articles 2, 3, 4, 5
and 6 of CERD. However, for the purposes of its Request for the indica-
tion of provisional measures, in order to identify the rights which it seeks
to protect pending a decision on the merits, Ukraine relies exclusively on
Articles 2 and 5 of the Convention (see paragraph 80 below). Ukraine
states that each of the measures requested relate to these rights. In this
respect, it recalls that it is requesting the Court to order the Russian
Federation to refrain from any act of racial discrimination, to suspend
the decision to ban the Mejlis of the Crimean Tatar People, to take all
necessary steps to halt the disappearance of Crimean Tatar individuals
and to suspend restrictions on Ukrainian-language education.

                                     *
   79. The Russian Federation considers that the rights Ukraine asserts
are not plausible and are not grounded in a possible interpretation of
CERD. It explains that it is not enough to allege that a person has suf-
fered a prejudice or that one of his or her rights under the Convention has
been infringed. It must be shown that the prejudice or the infringement of
a right is discriminatory in nature. Yet, according to the Russian Feder-
ation, Ukraine has not established that the Respondent has adopted
measures which had a discriminatory eﬀect on the Tatar and Ukrainian
communities, showing a diﬀerentiation of treatment between those com-
munities and the other residents in Crimea. Focusing on Articles 2 and 5
of CERD, the Russian Federation considers that Ukraine merely gives a
list of alleged violations of human rights that have aﬀected people of
Tatar or Ukrainian origin; at no point does it explain how these alleged
violations constitute racial discrimination under CERD.

                                    * *

                                                                         32

          application of the icsft and cerd (ord. 19 IV 17)              133

   80. The Court notes that CERD imposes a number of obligations on
States parties with regard to the elimination of racial discrimination in all
its forms and manifestations. For the purposes of CERD, the term “racial
discrimination” includes discrimination on the basis of ethnic origin
(Art. 1, para. 1). Articles 2 and 5 of the Convention, invoked by Ukraine
for the purposes of its Request for the indication of provisional measures,
read as follows:

                                     “Article 2
       1. States Parties condemn racial discrimination and undertake to
    pursue by all appropriate means and without delay a policy of
    eliminating racial discrimination in all its forms and promoting
    understanding among all races, and, to this end:
    (a) Each State Party undertakes to engage in no act or practice of
         racial discrimination against persons, groups of persons or
         institutions and to ensure that all public authorities and public
         institutions, national and local, shall act in conformity with
         this obligation;
    (b) Each State Party undertakes not to sponsor, defend or support
         racial discrimination by any persons or organizations;

    (c) Each State Party shall take eﬀective measures to review govern-
        mental, national and local policies, and to amend, rescind or nul-
        lify any laws and regulations which have the eﬀect of creating or
        perpetuating racial discrimination wherever it exists;

    (d) Each State Party shall prohibit and bring to an end, by all appro-
        priate means, including legislation as required by circumstances,
        racial discrimination by any persons, group or organization;

    (e) Each State Party undertakes to encourage, where appropriate,
         integrationist multiracial organizations and movements and other
         means of eliminating barriers between races, and to discourage
         anything which tends to strengthen racial division.
       2. States Parties shall, when the circumstances so warrant, take, in
    the social, economic, cultural and other ﬁelds, special and concrete
    measures to ensure the adequate development and protection of cer-
    tain racial groups or individuals belonging to them, for the purpose
    of guaranteeing them the full and equal enjoyment of human rights
    and fundamental freedoms. These measures shall in no case entail as
    a consequence the maintenance of unequal or separate rights for dif-
    ferent racial groups after the objectives for which they were taken
    have been achieved”;

                                                                          33

      application of the icsft and cerd (ord. 19 IV 17)                134

                                 “Article 5
   In compliance with the fundamental obligations laid down in arti-
cle 2 of this Convention, States Parties undertake to prohibit and to
eliminate racial discrimination in all its forms and to guarantee the
right of everyone, without distinction as to race, colour, or national
or ethnic origin, to equality before the law, notably in the enjoyment
of the following rights:
(a) The right to equal treatment before the tribunals and all other
     organs administering justice;
(b) The right to security of person and protection by the State against
     violence or bodily harm, whether inﬂicted by government oﬃcials
     or by any individual group or institution;

(c) Political rights, in particular the right to participate in elections —
    to vote and to stand for election — on the basis of universal and
    equal suﬀrage, to take part in the Government as well as in the
    conduct of public aﬀairs at any level and to have equal access to
    public service;

(d) Other civil rights, in particular:
        (i) The right to freedom of movement and residence within
            the border of the State;
       (ii) The right to leave any country, including one’s own, and
            to return to one’s country;
      (iii) The right to nationality;
      (iv) The right to marriage and choice of spouse;
       (v) The right to own property alone as well as in association
            with others;
      (vi) The right to inherit;
     (vii) The right to freedom of thought, conscience and
            religion;
     (viii) The right to freedom of opinion and expression;
      (ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
        (i) The rights to work, to free choice of employment, to just
            and favourable conditions of work, to protection against
            unemployment, to equal pay for equal work, to just and
            favourable remuneration;
       (ii) The right to form and join trade unions;
      (iii) The right to housing;
      (iv) The right to public health, medical care, social security and
            social services;
       (v) The right to education and training;
      (vi) The right to equal participation in cultural activities;

(f) The right of access to any place or service intended for use by the

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           application of the icsft and cerd (ord. 19 IV 17)              135

         general public, such as transport hotels, restaurants, cafes, thea-
         tres and parks.”
   81. The Court observes that there is a correlation between respect for
individual rights, the obligations of States parties under CERD and the
right of States parties to seek compliance therewith (see Application of the
International Convention on the Elimination of All Forms of Racial Dis-
crimination (Georgia v. Russian Federation), Provisional Measures, Order
of 15 October 2008, I.C.J. Reports 2008, pp. 391-392, para. 126).

   82. The Court notes that Articles 2 and 5 of CERD are intended to
protect individuals from racial discrimination. Consequently, in the con-
text of a request for the indication of provisional measures, a State party
to CERD may avail itself of the rights under Articles 2 and 5 only if it is
plausible that the acts complained of constitute acts of racial discrimina-
tion under the Convention.
   83. In the present case, on the basis of the evidence presented before
the Court by the Parties, it appears that some of the acts complained of
by Ukraine fulﬁl this condition of plausibility. This is the case with respect
to the banning of the Mejlis and the alleged restrictions on the educa-
tional rights of ethnic Ukrainians.

                                      *
   84. The Court now turns to the issue of the link between the rights
claimed and the provisional measures requested.
   85. The provisional measures sought by Ukraine in paragraph 24,
points (b) to (e) of its Request, which were reiterated at the close of its
oral argument, are aimed at preventing the Russian Federation from
committing acts of racial discrimination against persons, groups of per-
sons, or institutions in the Crimean peninsula (point (b)); preventing acts
of political and cultural suppression against the Crimean Tatar people,
including suspending the decree banning the Mejlis (point (c)); prevent-
ing the disappearance of Crimean Tatar individuals and ensuring prompt
investigation of disappearances that have already occurred (point (d));
and preventing acts of political and cultural suppression against the eth-
nic Ukrainian people in Crimea, including suspending restrictions on
Ukrainian-language education (point (e)).

   86. As the Court has already recalled, there must be a link between the
measures which are requested and the rights which are claimed to be at
risk of irreparable prejudice. In the current proceedings, this is the case
with respect to the measures aimed at safeguarding the rights of Ukraine
under Articles 2 and 5 of CERD with regard to the ability of the Crimean
Tatar community to conserve its representative institutions and with
regard to the need to ensure the availability of Ukrainian-language
education in schools in Crimea.

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           application of the icsft and cerd (ord. 19 IV 17)               136

           III. Risk of Irreparable Prejudice and Urgency

   87. In view of the conclusion reached in paragraph 76, the issue of the
risk of irreparable prejudice and urgency only arises in relation to the
provisional measures sought with regard to CERD.

   88. The Court, pursuant to Article 41 of its Statute, has the power to
indicate provisional measures when irreparable prejudice could be caused
to rights which are the subject of judicial proceedings (see, for example,
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Pro-
visional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II),
p. 1168, para. 82).
   89. However, the power of the Court to indicate provisional measures will
be exercised only if there is urgency, in the sense that there is a real and
imminent risk that irreparable prejudice will be caused to the rights in dis-
pute before the Court gives its ﬁnal decision (ibid., para. 83). The Court must
therefore consider whether such a risk exists at this stage of the proceedings.
   90. The Court is not called upon, for the purposes of its decision on
the Request for the indication of provisional measures, to establish the
existence of breaches of CERD, but to determine whether the circum-
stances require the indication of provisional measures for the protection
of rights under this instrument. It cannot at this stage make deﬁnitive
ﬁndings of fact. The right of each Party to submit arguments in respect of
the merits remains unaﬀected by the Court’s decision on the Request for
the indication of provisional measures.

                                     * *
   91. Ukraine maintains that in Crimea, the Russian Federation is con-
ducting a “policy of cultural erasure” through its discrimination against
the Crimean Tatar and ethnic Ukrainian population. Ukraine claims that
the risk of irreparable prejudice to the rights it invokes is imminent in
view of the persecution of the community’s leaders and the banning of the
Mejlis (described by Ukraine as the community’s central political and cul-
tural institution), as well as the suppression of the cultural and educa-
tional rights of Crimean Tatars and ethnic Ukrainians. Ukraine refers to
General Assembly resolution 71/205 of 19 December 2016 which expressed
serious concern over the banning of the Mejlis. Ukraine in addition refers
to various reports of the OHCHR which, it states, are highly critical of
the intimidatory tactics used by the Russian Federation to silence politi-
cal expression by the Crimean Tatar community. Ukraine also cites
reports of the OSCE’s Human Rights Assessment Mission on Crimea and
another report of the OHCHR which voiced great concern over the rapid
decline of Ukrainian-language instruction in Crimea.

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          application of the icsft and cerd (ord. 19 IV 17)              137

   92. According to Ukraine, without the interim measures of protection
that Ukraine urgently seeks, by the time this case is decided, “the ethnic
Ukrainian and Crimean Tatar communities will be severely weakened or
destroyed as culturally distinct communities”. Ukraine stresses that all of
the prejudice caused to those communities in the intervening years will be
irreparable. It points out that “[t]he vulnerability of these non-Russian
groups is conﬁrmed by the numbers who have left Crimea since the pen-
insula was occupied”.

                                     *
   93. The Russian Federation, for its part, denies that there exists a risk
of irreparable prejudice to the rights of the Applicant under CERD. As
regards the decision to ban the Mejlis, the Russian Federation states that,
in his report on the human rights situation in Ukraine (16 August to
15 November 2016), the United Nations High Commissioner for Human
Rights, who was aware of the contents of General Assembly resolu-
tion 71/205 of 19 December 2016, because this document was drafted
before the High Commissioner submitted his last report, made no criti-
cism of the decision of the Supreme Court of Crimea to ban the Mejlis,
which was subsequently conﬁrmed by the Supreme Court of the Russian
Federation. The Russian Federation contends that these judicial decisions
were taken on security grounds and for public order reasons and bore no
relation to the ethnicity of the members of the Mejlis.
   94. The Russian Federation further asserts that the situation is not
urgent, as alleged by Ukraine. The Russian Federation points out that
throughout the two and a half years of consultations between the Parties,
Ukraine has never made any reference to any kind of urgency or to an
imminent risk of prejudice. Quite the contrary, Ukraine has acted as if
there were no urgency at all. In addition, the Russian Federation argues
that the CERD Committee, which is in its view the most competent body
in this area and has all the information to hand, has not deemed it
necessary to trigger the urgent action procedure at its disposal, despite
having the possibility of doing so at any time and being aware of the
situation of minorities in Crimea for a long time. According to the
Respondent, this fact “deprives of all credibility Ukraine’s accusation
that the Russian authorities are pursuing a systematic campaign of
cultural erasure in Crimea with the aim of eliminating the Tatar
and Ukrainian communities”.
   95. Furthermore, the Russian Federation contends that it has taken
substantive measures to support the Crimean Tatar and Ukrainian com-
munities and to promote their culture. It refers, in particular, to the adop-
tion of a presidential decree on 21 April 2014 on the rehabilitation of the
Crimean Tatar people, providing support for their revival and develop-
ment, and granting them speciﬁc social beneﬁts. The Russian Federation
states that it is aware of the need to provide education in the language of
that community, which, according to it, is being met. It also mentions the

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           application of the icsft and cerd (ord. 19 IV 17)               138

fact that Crimean Tatars are represented in the political, legislative and
judicial institutions of the Republic of Crimea. It furthermore considers it
important to point out that Crimea’s new Constitution, which was
adopted on 11 April 2014, establishes both the Crimean Tatar and Ukrain-
ian languages as oﬃcial languages of Crimea. The Russian Federation
adds that the educational rights of the Tatar and Ukrainian communities
are duly protected.

                                     * *
   96. The Court notes that certain rights in question in these proceed-
ings, in particular, the political, civil, economic, social and cultural rights
stipulated in Article 5, paragraphs (c), (d) and (e) of CERD are of such
a nature that prejudice to them is capable of causing irreparable harm.
Based on the information before it at this juncture, the Court is of the
opinion that Crimean Tatars and ethnic Ukrainians in Crimea appear to
remain vulnerable.

   97. In this regard, the Court takes note of the report on the human
rights situation in Ukraine (16 May to 15 August 2016), whereby the
OHCHR acknowledged that “the ban on the Mejlis, which is a self-
government body with quasi-executive functions, appears to deny the
Crimean Tatars — an indigenous people of Crimea — the right to choose
their representative institutions”, as well as of his report on the human
rights situation in Ukraine (16 August to 15 November 2016), in which
the OHCHR explained that none of the Crimean Tatar NGOs currently
registered in Crimea can be considered to have the same degree of repre-
sentativeness and legitimacy as the Mejlis, elected by the Crimean Tatars’
assembly, namely the Kurultai. The Court also takes note of the report of
the OSCE Human Rights Assessment Mission on Crimea (6 to 18 July
2015), according to which “[e]ducation in and of the Ukrainian language
is disappearing in Crimea through pressure on school administrations,
teachers, parents and children to discontinue teaching in and of
the Ukrainian language”. The OHCHR has observed that “[t]he start of
the 2016-2017 school year in Crimea and the city of Sevastopol conﬁrmed
the continuous decline of Ukrainian as a language of instruction” (report
on the human rights situation in Ukraine (16 August to 15 November
2016)). These reports show, prima facie, that there have been restrictions
in terms of the availability of Ukrainian-language education in Crimean
schools.

   98. The Court considers that there is an imminent risk that the acts, as
set out above, could lead to irreparable prejudice to the rights invoked by
Ukraine.

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          application of the icsft and cerd (ord. 19 IV 17)             139

            IV. Conclusion and Measures to Be Adopted

   99. The Court concludes from all of the above considerations that the
conditions required by its Statute for it to indicate provisional measures
in respect of CERD are met. It is therefore appropriate, pending its ﬁnal
decision, for the Court to indicate certain measures in order to protect the
rights claimed by Ukraine, as identiﬁed above.

   100. The Court recalls that it has the power, under its Statute, when a
request for provisional measures has been made, to indicate measures
that are in whole or in part other than those requested. Article 75, para-
graph 2, of the Rules of Court speciﬁcally refers to this power of the
Court. The Court has already exercised this power on several occasions in
the past (see, for example, Immunities and Criminal Proceedings (Equato-
rial Guinea v. France), Provisional Measures, Order of 7 December 2016,
I.C.J. Reports 2016 (II), p. 1170, para. 94).
   101. In the present case, having considered the terms of the provisional
measures requested by Ukraine and the circumstances of the case, the
Court ﬁnds that the measures to be indicated need not be identical to
those requested.
   102. Reminding the Russian Federation of its duty to comply with its
obligations under CERD, the Court considers that, with regard to the
situation in Crimea, the Russian Federation must refrain, pending the
ﬁnal decision in the case, from maintaining or imposing limitations on the
ability of the Crimean Tatar community to conserve its representative
institutions, including the Mejlis. In addition, the Russian Federation
must ensure the availability of education in the Ukrainian language.

   103. The Court recalls that Ukraine has requested it to indicate
measures aimed at ensuring the non-aggravation of the dispute with the
Russian Federation. When it is indicating provisional measures for the
purpose of preserving speciﬁc rights, the Court also possesses the power
to indicate provisional measures with a view to preventing the aggrava-
tion or extension of a dispute whenever it considers that the circumstances
so require (see Request for Interpretation of the Judgment of 15 June 1962
in the Case concerning the Temple of Preah Vihear (Cambodia v. Thai-
land) (Cambodia v. Thailand), Provisional Measures, Order of 18 July
2011, I.C.J. Reports 2011 (II), pp. 551-552, para. 59). In this case, having
considered all the circumstances, in addition to the speciﬁc measures it
has decided to take, the Court deems it necessary to indicate an add-
itional measure aimed at ensuring the non-aggravation of the dispute
between the Parties.

                                      *
                                  *       *
  104. With regard to the situation in eastern Ukraine, the Court reminds
the Parties that the Security Council, in its resolution 2202 (2015),

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          application of the icsft and cerd (ord. 19 IV 17)             140

endorsed the “Package of Measures for the Implementation of the Minsk
Agreements”, adopted and signed in Minsk on 12 February 2015 by rep-
resentatives of the OSCE, Ukraine and the Russian Federation, as well as
by representatives of “certain areas of the Donetsk and Luhansk regions”,
and endorsed by the President of the Russian Federation, the President of
Ukraine, the President of the French Republic and the Chancellor of the
Federal Republic of Germany. The Court expects the Parties, through
individual and joint eﬀorts, to work for the full implementation of this
“Package of Measures” in order to achieve a peaceful settlement of the
conﬂict in the eastern regions of Ukraine.

                                      *
                                  *       *

  105. The decision given in the present proceedings in no way prejudges
the question of the jurisdiction of the Court to deal with the merits of the
case or any questions relating to the admissibility of the Application or to
the merits themselves. It leaves unaﬀected the right of the Governments
of Ukraine and the Russian Federation to submit arguments in respect of
those questions.

                                      *
                                  *       *

  106. For these reasons,
  The Court,
  Indicates the following provisional measures:
   (1) With regard to the situation in Crimea, the Russian Federation
must, in accordance with its obligations under the International Conven-
tion on the Elimination of All Forms of Racial Discrimination,

  (a) By thirteen votes to three,
  Refrain from maintaining or imposing limitations on the ability of the
Crimean Tatar community to conserve its representative institutions,
including the Mejlis;
  in favour: President Abraham; Vice-President Yusuf; Judges Owada,
    Bennouna, Cançado Trindade, Greenwood, Donoghue, Gaja,
    Sebutinde, Bhandari, Robinson, Crawford; Judge ad hoc Pocar;

  against: Judges Tomka, Xue; Judge ad hoc Skotnikov;
  (b) Unanimously,
  Ensure the availability of education in the Ukrainian language;

  (2) Unanimously,

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          application of the icsft and cerd (ord. 19 IV 17)            141

  Both Parties shall refrain from any action which might aggravate or
extend the dispute before the Court or make it more diﬃcult to resolve.

  Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this nineteenth day of April two thousand
and seventeen, 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.

                                           (Signed) Ronny Abraham,
                                                       President.
                                          (Signed) Philippe Couvreur,
                                                        Registrar.

  Judge Owada appends a separate opinion to the Order of the Court;
Judge Tomka appends a declaration to the Order of the Court;
Judges Cançado Trindade and Bhandari append separate opinions
to the Order of the Court; Judge Crawford appends a declaration to
the Order of the Court; Judges ad hoc Pocar and Skotnikov append
separate opinions to the Order of the Court.

                                                      (Initialled) R.A.
                                                      (Initialled) Ph.C.

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