The Preliminary Objections Judgment of Genocide (Ukraine v Russia): Implications on ‘Packaging and Shoehorning’

[Yue Cao is a DPhil Law student at the University of Oxford. He holds an MPhil in Law and a Magister Juris (MJur) from the University of Oxford, and a Bachelor of Law (LLB) from Shanghai Jiao Tong University (SJTU).]

On February 2, the ICJ delivered its Preliminary Objections Judgment on Genocide (Ukraine v. Russian Federation). (see general comments here and here) One significant aspect of the judgment is that the Court rejected Ukraine’s ‘creative’ argument that its dispute with Russia concerning whether the latter’s use of force based on purportedly false allegations of genocide violated the Genocide Convention constitutes one falling within the Convention’s compromissory clause, and denied its jurisdiction over this dimension of the dispute accordingly. (para. 147) This is the latest development on the classic problem about the Court’s compromissory clause jurisdiction over ‘packaged’ and ‘shoehorned’ disputes. This post offers a critical analysis of the decision and argues that, whereas the Court is likely correct in its reasoning, it fails to clarify certain crucial issues that may impact future cases of the kind.

The Scope of Compromissory Clauses: Beyond Literal Interpretation?

The practice of ‘packaging and shoehorning’ stems from the decentralised and consensual nature of international judicial dispute settlement. Often, the respondent will not consent to adjudication of sensitive matters like the use of armed force. Therefore, to seize an adjudicatory body’s jurisdiction, the applicant may have to utilise the compromissory clause of a (relatively) discrete treaty to which both parties consented by constructing the dispute as one under that treaty. Because of the derivative nature of disputes thus framed, two problems may arise: firstly, the accused conduct may hardly ever breach the treaty establishing jurisdiction; secondly, the dispute may relate to external matters not subject to the Court’s jurisdiction. These problems will be discussed in turn in this and the following sections.

Compromissory clauses usually provide for jurisdiction over ‘disputes relating to the interpretation or application’ of the relevant treaty. The literal meaning of such terms indicates that, a qualified dispute emerges so long as one party claims for a breach of the treaty at hand and is opposed by the other party. (Harris 2021, p. 422) This was also implicitly acknowledged in Judge Charlesworth’s Opinion. (paras. 20–23) By contrast, the present judgment explicitly stated, for the first time, that ‘it is not sufficient for the applicant to claim an alleged violation of the treaty and for the respondent to contest it’. (para. 135) Instead, the Court must ascertain, according to a test it first formulated in Oil Platforms, whether the alleged violations ‘fall within the provisions of the treaty’.

The Oil Platforms test has been persistently upheld by the Court despite slight variations but is also notoriously ambiguous. (see Lando 2023) In the present case, the Court endeavoured to provide some clarification of the test’s content, stating that it is one regarding ‘whether the facts at issue, if established, are capable of constituting violations of obligations under the treaty’. (para. 136) Thus understood, the Court’s conclusion that Russia’s acts ‘are not capable of constituting violations…of the Convention’ and its reasoning thereon seems compelling. Simply put, although the Genocide Convention does not authorise Russia to act abusively, in bad faith and/or in violation of other rules of international law, etc., it does not prohibit such conduct either. An opposite interpretation will, as Russia argued, produce questionable normative outcomes, i.e. reading into the Convention an indefinite number of obligations. If Ukraine’s position is adopted, the Court will be permitted to assess the legality of any measure purportedly taken in response to a breach of a treaty containing the compromissory clause. For example, China could bring various EU member states to the Court under the Genocide Convention for the legality of sanctions against alleged genocide in Xinjiang, had it not made a reservation to Article IX itself. Similarly, the Federal Republic of Yugoslavia could have obtained a positive decision on jurisdiction in Legality of Use of Force, if it had claimed that NATO’s airstrikes constituted an abusive implementation of the Convention instead of an act of genocide. This is probably an undue expansion of the Court’s jurisdiction.

That said, the Court’s reasoning is not without deficiencies. For one, the Court could have elaborated more on why Russia’s conduct could not have breached the Convention by reference to the interpretative rules in the VCLT. Indeed, it did not shy away from doing so in Oil Platforms, Certain Iranian Assets and Immunities and Criminal Proceedings, where the scope of each allegedly breached provision was interpreted based on their text, context, object and purpose, travaux, etc. Considering the difficulty and complexity of the interpretative issues in the case and the comprehensiveness of the parties’ arguments, the Court’s 5-paragraph reasoning lacking any reference to the elements of interpretation may appear to be a bit hasty.

For another, the ‘capability’ test, notwithstanding its continual usage by the Court, is not conceptually unproblematic. The Court’s compromissory clause jurisdiction hinges on the content of a dispute (i.e. whether it is ‘relating to’ the treaty), and it is rather odd to deduce the dispute’s content from its possible outcome (and thus the correctness of one party’s opinion). These two questions are conceptually irrelevant to each other: the fact that the respondent’s acts can hardly constitute a violation of a treaty, because the treaty provisions are not even applicable to them, does not affect the existence of a dispute exactly on such applicability and violability, which is ‘relating to’ the interpretation/application of the treaty in every possible meaning of the term. By holding that this category of disputes, i.e. those where the alleged obligations are simply inapplicable to the respondent’s impugned conduct, is ‘unrelated’ to the interpretation/application of a treaty, the Court is effectively qualifying the phrase ‘relating to’ as ‘genuinely’ or ‘[not] remote[ly]’ (to use the wording in Ambatielos) ‘relating to’. That the parties, despite the treaties’ express wording, have intended to exclude from the Court’s jurisdiction such remote and ungenuine disputes is possible, but cannot be so easily presumed. Just as they may not want the Court to hear abusive and hard-to-succeed lawsuits, they may be equally willing to endow the Court with jurisdiction so that they can easily obtain a winning judgement.

Essentially, to label the assessment of ‘capability of breach’ as an interpretation of compromissory clauses and a test on jurisdiction twists its nature. The test is rather designed based on considerations of judicial economy: as Judge Shahabuddeen suggested, it is to create a ‘striking out’ mechanism available in some domestic legal systems, i.e. to allow the Court to terminate the proceedings concerning manifestly unfounded claims before entering the normal merits phase. It is thus more akin to a test for admissibility than jurisdiction. Admittedly, such conceptual differentiation will probably not make much practical difference, and the Court is unlikely to reconceptualise the test given its heavy path dependence. Nevertheless, the ‘capability’ test raises a more fundamental problem of blurring the boundary between findings of jurisdiction and merits, to which I now turn.

Delimitating Jurisdictional Boundaries or Pre-judging the Merits?

In this judgment, applying the Oil Platforms test, the Court’s decision essentially dismissed Ukraine’s substantive claim: if Russia could not have violated its obligations under the Convention, logically it also did not violate those obligations. As nothing else (either legal or factual) could possibly be argued to prove the illegality of Russia’s conduct, the judgment seems to constitute a merits decision which shall not be made at the preliminary stage. (article 79bis(3), Rules of Court) It also causes questions about the scope of res judicata. For instance, suppose the jurisdictional obstacles in this case are subsequently removed by an agreement or optional clause declarations, can Ukraine have the Court (re)assess the merits?

One solution may be to distinguish the two phases according to the ‘legal’ and ‘factual’ nature of the questions to determine. As such, a preliminary decision (including the capability test) only determines ‘pure[]’ ‘questions of law’ ‘in the abstract’, whereas a merits decision determines evidentiary questions and the consequences of the law as applied to those established facts. (Lando 2018, pp. 661–62) The distinction is made by various individual opinions in past cases, including those of Judge Donoghue, President Yusuf, Judge ad hoc Daudet, Judge Sebutinde and Judge Iwasawa. However, whereas there is indeed something left for determination in the merits phase where the respondent is held capable of breaching the treaty, the distinction makes little sense in cases like the present one, where the Court did determine the outcome of factual application (indirectly) by holding the respondent not capable of violating the treaty. The Court itself also has not adamantly upheld the distinction: in ICSFT and CERD, it held that its task when applying the ‘capability’ test is to ‘consider the questions of law and fact’. (para. 58) Additionally, questions of law and fact are not easily distinguishable, and the Court’s recent jurisprudence offers little help but confusion in this regard. In CERD (Qatar v. UAE), the Court seemed content to accept its determination of whether the respondent’s alleged measures had the ‘purpose or effect’ of racial discrimination (article 1(1) CERD) as purely legal and preliminary. By contrast, in ICSFT and CERD, the Court found that the determination of the same issue under this article ‘concern[s] issues of fact…and are thus properly a matter for the merits’. The rationale underlying such inconsistent conclusions remains obscure.

A better approach to address the conflation of preliminary and merits questions is perhaps to focus instead on the threshold of the ‘capability’ test. We may conceive the test not as requiring a ‘definitive’ interpretation of the substantive treaty provisions (Judge Higgins, Judge Donoghue), but only requiring the applicant to show an ‘arguable’ (Judge Shahabuddeen) or ‘plausible’ (Ambatielos) interpretation. Accordingly, it leaves the actual determination of substantive issues untouched, allowing the Court to consider both questions of law and fact at the preliminary stage without encroaching too much into the merits. Unfortunately, the present judgment left all these important questions unsettled, and we will have to wait for another ‘shoehorned’ case to seek an authoritative answer from the Court.

Indispensable External Issues?

As mentioned above, another problem of ‘shoehorned’ disputes is that they may relate to external matters the jurisdiction over which the parties have not consented to. Although it is common that certain acts may violate more than one treaty and the existence of such parallel disputes does not in itself exclude the pertinent dispute from the Court’s compromissory clause jurisdiction (Alleged Violations of the 1955 Treaty, para. 56), this only holds true when the external disputes are separable from the ‘internal’ dispute. When the external issue is inseparable from the internal issue, that is, when the determination of the internal issue necessitates a pre-determination or co-determination of, or affects the future determination of, the external issue, the Court’s jurisdiction ratione materiae over the internal issue may become questionable.

In the present case, the Court denied its jurisdiction under the Genocide Convention partly because Ukraine’s claims would require a determination of external issues of recognition and use of force. (paras. 144–46) By doing so, the Court appeared to adopt a ‘restrictive approach’, i.e. to reject jurisdiction over the internal issue for lack of jurisdiction over some indispensable external issues (to use wording in Hill-Cawthorne 2019), and not the ‘characterisation approach’ developed in recent jurisprudence, i.e. to assess whether the ‘real’ dispute is the internal or the external one (Harris 2019) This seems to be correct, since what matters is not the underlying motivations of the litigants or the artificial primacy of different issues, but the separability of the issues under the treaty from external ones; only the latter may affect the fundamental principle of consent.

Nevertheless, the current ruling may contravene the Court’s own jurisprudence such as the ICAO Qatar Appeals cases, where it held that the ICAO Council has the competence to determine indispensable external issues of terrorism and non-intervention in order to decide a dispute under the Chicago Convention; the Court offered no explanation in this respect. The Court also failed to elaborate on the distinction between directly determining an external issue and using it indirectly as an interpretative means under article 31(3)(c) VCLT. According to Oil Platforms, the latter would fall within the Court’s compromissory clause jurisdiction. It thus remains unclear why issues of recognition and use of force, as implied by President Donoghue, cannot be considered (rather than determined) when interpreting the scope of a potential good faith or due diligence obligation under the Genocide Convention, and thus fall within the Court’s jurisdiction.

Conclusion

To conclude, accepting Ukraine’s jurisdictional basis may generate far-reaching normative consequences of encouraging a flood of ‘packaged’ and ‘shoehorned’ litigation. Therefore, the Court is probably right to depart from its Provisional Measures Order and decline to exercise jurisdiction over the dispute concerning the legality of Russia’s military operations. However, the Court also fails to satisfactorily clarify pre-existing controversies on its compromissory clause jurisdiction, especially the delimitation between jurisdictional and merits findings and the legal effect of indispensable external issues. A predictable standard for determining jurisdiction over ‘packaged’ and ‘shoehorned’ disputes is yet to be formed.