ICJ Delivers Ruling on Unanswered Jurisdictional Question for Cases Brought Under CERD

[Natasha Arnpriester an attorney with the Open Society Justice Initiative, where she focuses on criminal justice reform, anti-torture and citizenship. You can find her on Twitter: @NatashaArnpr]

On 8 November 2019, the International Court of Justice (ICJ), the principal judicial organ of the United Nations and highest court for disputes between states, ruled that it has jurisdiction to hear Ukraine’s case against Russia for violations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) committed in Crimea following Russia’s seizure of the territory in 2014.

In its application, Ukraine alleged that Russia has, among other violations, perpetrated “a campaign of cultural erasure” through the systematic discrimination and mistreatment of Crimean Tatars and ethnic Ukrainians; imposed Russian citizenship on Ukrainians, transforming those who did not comply into “foreigners” resulting in their deportation, and conscripting newly-minted Russians into the state’s military; illegally transferred prisoners into mainland Russia; manipulated the peninsula’s demographic composition through forced migration; and implemented discriminatory anti-extremism laws as a means to stigmatize and criminalize those identifying as pro-Ukraine. Despite well-documented evidence establishing these facts, Russia denied the allegations and argued that Ukraine’s case against it should be dismissed for lack of jurisdiction.

Article 22 of CERD sets out the procedural preconditions required for ICJ jurisdiction. It provides that the Court can only hear a dispute arising under CERD if said dispute was “not settled by negotiation or by the procedures expressly provided for in [CERD].” Plainly stated, the parties to the dispute must not have been able to reach a settlement by either option.

Whether Ukraine’s case concerning Crimea was admissible depended upon the Court’s interpretation of this clause, which had been invoked only once before, in Georgia v. Russia (decided in 2011). In that case, Georgia claimed that it attempted negotiations with Russia regarding discriminatory acts committed in South Ossetia. According to the Court, in order for Georgia to meet the procedural precondition of “negotiation,” the negotiation must have been a “genuine attempt” at resolving the dispute. In reviewing the facts, the Court noted that Georgia gave Russia notice of the dispute only three days prior to submitting its application to the ICJ, and that over those three days, only unilateral statements were made by both parties regarding breaches of CERD.

In determining the parameters of what constituted a “genuine attempt,” the Court held that negotiations are “distinct from mere protests or disputations,” and entail more than “an opposing view,” “accusations” and the “exchange of claims” and “counterclaims.” Given the facts, the Court determined that Georgia’s claimed negotiation was not a “genuine attempt” at resolving the dispute. Secondly, the Court noted that in assessing at what point in time it would acquire jurisdiction to hear such a dispute—assuming a genuine attempt was actually made—the Court held that this point would be reached only after negotiations had “failed” or were “futile or deadlocked.”

Following this logic in Ukraine’s case, the Court recalled that Ukraine had transmitted multiple requests to Russia inviting negotiations, which resulted in three rounds of negotiations in Minsk that lasted for approximately two years, over which diplomatic correspondence and face-to-face meetings continued (para. 118-119). To the Court, this was sufficient to constitute a “genuine attempt” at negotiation, and given that Ukraine and Russia’s positions regarding the dispute had not changed, it also indicated that negotiations had become futile (para. 120).

Reaching this conclusion, the Court turned to an unanswered jurisdictional question that it was unable to reach in Georgia’s case. Recalling that Article 22 states that any dispute “which is not settled by negotiation or by the procedures expressly provided for in [CERD], shall, at the request of any of the parties to the dispute, be referred to the [ICJ] for decision…” the Court grappled with whether recourse must be sought in both negotiation and the procedures expressly provided for in CERD—i.e. “cumulative,” or “alternative,” requiring a state to only utilized one or the other.

The Court articulated that since the conjunction “or” in the clause was qualified by the preceding term “not,” it should be understood as formulated in the negative. Accordingly, though “or” is generally interpreted disjunctively in an affirmative clause, when introduced by a negative, it cannot necessarily be assumed that the clause is disjunctive. As such, the Court reasoned that “or” in such a formulation could take on either a disjunctive or conjunctive meaning. Thus, since both interpretations were plausible based on the text, Ukraine was only required to undertake one of the two avenues prescribed in Article 22.

Moreover, the Court expounded that negotiations and the procedures expressed in CERD—i.e. a dispute resolution mechanism overseen by the CERD Committee (governed by Articles 11-13)—are but two sides of the same coin aimed at achieving the same objective: to settle a dispute by agreement. Additionally, both processes depend upon the States’ willingness to seek an agreed settlement. Therefore, if Article 22 was understood to be cumulative, states would need to attempt negotiation, and if unsuccessful, take the matter before the CERD Committee for yet another round of negotiation (or vice versa). The Court thus reasoned that such an interpretation was superfluous as it requires states, “which have already failed to reach an agreed settlement through negotiations, to engage in yet an additional [presumably futile] set of negotiations.”

To strengthen its opinion, the Court invoked the object and purpose of CERD, holding that it too informed the interpretation of Article 22. CERD provides that States undertake to eliminate racial discrimination “without delay” by adopting “immediate and effective measures” “speedily.” Accordingly, the Court held that achieving such aims could be “more difficult if the procedural preconditions…were cumulative.” Ergo, by a vote of 15-1, the Court held that the procedural preconditions for its jurisdiction under Article 22 were met, thereby permitting the Court to deliberate the merits of the case (Russia’s counter-memorial is due 8 December 2020).

This nascent precedent will soon be tested again in Qatar v. United Arab Emirates (submitted June 2018). Here, Qatar accused the UAE of perpetrating multiple human rights abuses violative of CERD against Qataris based on their national origin. These include the collective and rapid expulsion of Qataris from the UAE; a blanket prohibition on Qataris’ entry into the state; the separation of mixed Qatari-Emirati families, including parents from children; the deprivation of Qataris’ property, livelihood and disruption of their education; the incitement of hate speech against Qataris, as well as, the widespread suppression and criminalization of speech that opposes discriminatory actions taken against them.

In asserting it had fulfilled the procedural preconditions of Article 22, Qatar cited a letter it transmitted to the UAE, giving the state two weeks to enter into negotiations in order to resolve the alleged CERD violations. The UAE never responded. Roughly six weeks later, Qatar submitted its application and a request for provisional measures to the ICJ. Qatar had also initiated use of the CERD Committee procedure, but at the time Qatar requested proceedings before the ICJ, the CERD procedure was not yet complete. Notwithstanding, Qatar did not rely on this procedure for the purposes of showing the ICJ has jurisdiction, relying on the argument that Article 22 is alternative.

In determining whether to grant provisional measures, the ICJ is not required to reach a conclusive decision on its jurisdiction over the matter, only that it provisionally (i.e. “prima facie”) might have jurisdiction once full arguments are heard on the matter (see Nuclear Tests case (1973), para. 13; see also Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) (2007), para. 105.). In its adjudication of Qatar’s request for provisional measures, the Court considered that since the letter contained an offer to negotiate and given that the UAE did not respond, that the issues raised had not been resolved by negotiation (para. 38). Thus, as it ruled in Ukraine’s case at this early stage, the Court found that it had prima facie jurisdiction to issue the provisional measures requested by Qatar. Time will tell if the Court ultimately decides it has proper jurisdiction in Qatar’s case to proceed to a ruling on the merits.

Recapping what is known (thus far) for the ICJ to determine it has jurisdiction under Article 22 of CERD: 1) a state must either attempt negotiations with the disputing state or utilize the CERD Committee procedure, both are not required; 2) if negotiation is tried, it must be a “genuine attempt,” a) mere statements regarding breaches of CERD will not suffice (e.g., Georgia), but b) multiple reques­ts inviting negotiations resulting in actual negotiations will (e.g., Ukraine), and c) only one negotiation request, which is ignored, might be enough, but still to be determined (e.g., Qatar); and finally, 3) negotiations must be at a point of failure, deadlock or futility.

Altogether, the ICJ’s new clarification on the alternative nature of Article 22 has established a less cumbersome hurdle for states to surmount should they wish to access the Court to settle their CERD dispute. It will be interesting to watch if states utilize this alternative avenue in an attempt to bypass the CERD Committee and try their hand at a binding decision from the ICJ.

***

In 2018, the Justice Initiative published a report, “Human Rights in the Context of Automatic Naturalization in Crimea,” regarding the violations that followed Russia’s seizure of Crimea in 2014, including systematic and targeted discrimination against Crimean Tatars and ethnic Ukrainians who refuse to identify as Russian citizens, along with the stigmatization and criminalization of individuals who support Ukraine.