5/19/2022 Russian Law to Seize Control Over Assets of Hosted Foreign Investors: A Violation of International LawRead Now This is an editorial piece authored by Tejas Hinder, Final Year Student of Law, BA LL.B., (Hons.) at National Law Institute University, Bhopal.
Introduction The Russian parliament is presently on discourse over a draft bill that, if passed, would empower the government to seize the assets of foreign businesses that have been doing business in the nation since February 24, 2022. The draft legislation on imposing external administration would allow the federal tax authority to petition the Moscow Arbitration (Commercial) Court to appoint the Russian state development corporation, VEB.RF, or another interdepartmental commission as a 'external administrator' for a firm. Businesses to potentially face an impact include those where the controlling person or owner of at least 25% of the company is a foreigner from an ‘unfriendly’ country, categorised on the basis of geo-political ties of the Russian Federation, such as the United Kingdom or the United States. To be placed under external management, the enterprise must be critical to maintaining economic stability or safeguarding the rights and legitimate interests of Russian residents in Russia. It is not the physical invasion of property that characterizes nationalizations or expropriations that has assumed importance, but the erosion of rights associated with ownership by State interferences. So, methods have been developed to address this issue.[1] In addition to the ECT, which has been quoted above, treaties in force that deal with the protection of investments typically address also indirect expropriations or measures having equivalent effect.[2] This article gives an in-depth insight into potential violations of international law that can arise if the statute comes into legal effect. It does so by covering grounds of the use of force under Article 2(4) of the UN Charter, justifiability as a counter measure, and violation of customary international law on investments, and brings to light an obligation for restitution on the Russian government should such seizures of assets happen. Violation of Article 2(4) of the UN Charter Article 2(4) of the Charter requires that states to refrain in their international relations, from the threat or use of force, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any manner inconsistent with the Purposes of the United Nations.” It endows the prohibition of force as a general and authoritative principle.[3] The substantial majority of legal scholars attribute the norm contained in Article 2(4) a jus cogens character.[4]The same has also been regarded as jus cogens by the International Court of Justice and the International Law Commission.[5] The principle enshrined under Article 2(4) of the Charter therefore has the character of an international customary law. The principle of non-intervention, as one of the fundamental norms of international law, is embodied in the Charter of the United Nations and firmly established in state practice and customary international law. Among early treaty formulations of the principle was Article 15(8) of the Covenant of the League of Nations and the Montevideo Convention on Rights and Duties of States of 1933, which prohibited interference with the freedom, the sovereignty or other internal affairs, or the processes of the Governments of other nations, together with the Additional Protocol on Non-Intervention of 1936. The principle enshrines sovereign equality of all nations. The prohibition of use of force covers within its ambit the blocking of investments by Russia which violated the sovereignty and integrity of the countries where the investors are incorporated by infringing its right to trade and other rights associated to its sovereign character. Justifiability as a countermeasure Countermeasures that violate fundamental human rights obligations[6] and involve the use or threat of force[7] are unlawful.[8] Countermeasures must be necessary “to safeguard an essential interest against a grave and imminent peril”[9] and proportionate, including quantitatively equivalent,[10] in response to an internationally wrongful act. The actions of the countries where the investors are incorporated does not tantamount to an internationally wrongful act, the ordinance introduced by Russia against these actions involve the use of force and do not satisfy the test of necessity or proportionality and hence is not a justified countermeasure. According to Article 25(1) ILC Articles, necessity may not be invoked by a state as a ground precluding the wrongfulness of an act not in conformity with an international obligation of that state unless the act is the only way for the state to safeguard an essential interest against a grave and imminent peril; and does not seriously impair an essential interest of the state or states towards which the obligation exists, or of the international community as a whole. In order to establish an essential interest against a grave and imminent peril, Russia in the first instance has to demonstrate a grave and imminent character of this peril.[11] Afterwards Russia has to establish the essential character of its interest against such a peril.[12] None of that can be effectively done by Russia. Economic objectives or irrationality in allocation of budget funds can qualify as a "grave peril", required by Article 25(1) ILC Articles. According to the tribunal in LG&E v. Argentina, in order for the peril to qualify as grave and imminent “the threat […] must be extremely grave”.[13] The tribunal in CMS v. Argentina held that even “[a] severe crisis cannot necessarily be equated with a situation of total collapse”,[14] required by Article 25(1) ILC Articles. The economic losses faced by Russia cannot be equated to a completely collapse of its economy. The threat is not grave or eminent and hence an essential interest of Russia cannot be drawn out for it to justify its action as a justified countermeasure. Violation of Customary International Law relating to investments Under customary international law, foreign investors are entitled to a certain level of treatment, and any treatment which falls short of this level, gives rise to responsibility on the part of the State. The international minimum standard includes fair and equitable treatment, full protection and security and compensation against expropriation. Violation of fair and equitable treatment obligation Russia owed a duty to accord fair and equitable treatment to the countries where the investors are incorporated, an element of this duty is the prohibition of arbitrary behaviour towards the investor state. As provided in the ELSI v. Italy, arbitrariness is “a wilful disregard of due process of law, an act which shocks, or at least surprises, a sense of judicial propriety”.[15] To meet the obligation to accord fair and equitable treatment, a host state shall ensure that “all relevant legal requirements for the purpose of initiating, completing and successfully operating investments made, or intended to be made,…should be capable of being readily known to all affected investors…There should be no doubt or uncertainty in such matters.”[16] The ordinance issued by Russia expropriating assets and suspending pending contractual payments came as a shock to the affected investors and the same was not made readily known to the investors beforehand. Such uncertainties in the legislations regarding the successful operation of investments in Russia state indicates arbitrary behaviour on part of Russia and hence a violation of the fair and equitable principle. The right to due process being one of the core rights of an investor, to grant the same, the host state should ensure that there is an operative mechanism of challenging governmental decisions which affect the investor. While the countries where the investors are incorporated had a possibility to resort to the state courts of Ruth, it would be futile. Given that the requirements for granting a license are confidential, the countries where the investors are incorporated would be unable to make a case before the national courts of Ruth, challenging the denial to grant a license to its investment. Hence, under the circumstances, the countries where the investors are incorporated in fact had no access to due process. The key element of the fair and equitable treatment standard is the requirement to protect the legitimate expectations of investors.[17] This requirement includes the obligation of the host state to maintain a stable legal framework for the investors,[18] which means that it should act consistently, without ambiguity, and transparently.[19] Moreover, the host state is under an obligation to meet the expectations of the investors, which arose out of direct or indirect representations or promises made by the host state.[20] The countries where the investors are incorporated established its investment in Russia state upon availing the requisite permits and licenses. The legitimate expectations can be based on the legal orders of the host state and/or explicit and implicit assurances,[21] which among other things includes licenses.[22] Hence, the countries where the investors are incorporated was entitled to expect the host state to act without arbitrarily revoking any pre-existing decisions or permits issued by the state that were relied upon by the investor to assume its commitments as well as to plan and launch its commercial and business activities.[23] Russia however failed to provide a transparent, stable legal framework and hence failed to protect the legitimate expectations of the countries where the investors are incorporated. In CME v. Czech Republic the host state had reversed its previous position on the legal situation of the holder of the license, which caused damage to the investor. The tribunal came to a conclusion that “the [Government] breached its obligation of fair and equitable treatment by evisceration of the arrangements in reliance upon with the foreign investor was induced to invest.”[24] In this instance, investors relied on the legal situation in Russia state at the time of its establishment in the state. This legal situation would completely reversed by way of the law introduced by Russia and hence cause severe damage. Impairment of conduct To make a plea of necessity the conduct in question must not seriously impair an essential interest of the state towards which the obligation exists.[25] Investors derive benefits from the investment made in the countries where the investors are incorporated state, this in turn was the basis on which the countries where the investors are incorporated state was operating. Hence, it formed a regular conduct wherein the parties were acting in accordance with the international investment law. However, the illegal ordinance promulgated by Russia state impaired the usual course of practice which had been recognised as legitimate, hence seriously impairing the conduct of the countries where the investors are incorporated. Arousal of the restitution obligation under Customary International Law A case of judicial restitution This being said, according to James Crawford, “[c]ustomary law or treaty may create obligations to which is annexed a power to demand specific restitution”.[26] As it is established by the International Court of Justice in the Chorzów Factory case, not only restitution may be claimed, but it is a primary remedy for a breach of an international obligation.[27] The ITLOS in M/V Saiga (No 2) cited the Chorzów Factory as an authority and confirmed the primacy of restitution as a remedy for a breach of an international obligation.33 Russia violated international treaty obligations as well as customary international law on investment thereby the COUNTRIES WHERE THE INVESTORS ARE INCORPORATED is entitled to restitution as a primary remedy against the breach of international obligations on part of Russia. Article 12 ILC Draft Articles frames customary international law on detecting a breach of an international obligation. As it follows from Article 12 ILC Draft Articles, certain obligations may be breached by the mere passage of incompatible legislation. As it further follows from Article 35 ILC Draft Articles, in this case the aggrieved party is entitled to claim restitution, which shall take the form of "the reversal of some juridical act".34 Such a juridical restitution is not alien to practice of international tribunals and was granted, for instance, in the Case of Radio East35, where the tribunal ordered Egypt to revoke a decree violating the 1932 Madrid International Telecommunications Convention. The illegal ordinance promulgated by Russia is conflicting with the international obligations it owed to the countries where the investors are incorporated. Hence, the claim for restitution is available to the countries where the investors are incorporated under customary international law, it being a reversal of the illegal action on part of the countries where the investors are incorporated by a passage of an inconsistent legislation. Non-exclusion of Judicial restitution under customary international law In customary international law restitution can be excluded only in two cases, namely, when restitution is materially impossible and when it is disproportionate (Article 35 (a) and (b) ILC Articles). Nevertheless, Russia cannot effectively invoke these defences. The typical cases when restitution is materially impossible are destruction of the object in question[28] or serious effect of restitution on the position of third parties.[29] Restitution may not be found impossible merely due to legal or practical difficulties.[30] The object in question, being the investment made by investors in Russia state would neither be destroyed nor would there be a serious effect of restitution on any third party. Further, the restitution claimed by the countries where the investors are incorporated is proportionate to the adverse effects of the illegal expropriation of assets on the countries where the investors are incorporated. Hence, restitution cannot be excluded in this regard. [1]UNCTAD Series on issues in international investment agreements, Taking of Property 20 (2000). [2]UNCTAD Series on issues in international investment agreements, Taking of Property 41 (2000). [3]Louis Henkin, ‘Use of Force: Law and US Policy’ in Right v. Might, International Law and the Use of Force (Council on Foreign Relations Press 1991) 38. [4]Malcolm N Shaw, International Law (Grotius, 1991) 686; Antonio Cassese, International Law in a Divided World (OUP 1994)141; Edip Celik, Milletlerarasti Hukuk (International Law) (Filiz Kitabevi 1982) 410. [5]Nicaragua v. United States, para. 183; Democratic Republic of the Congo v. Uganda, para. 148; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (Sep. op. Elaraby), p. 254; Oil Platforms (Islamic Republic of Iran v. United States of America) (Dis. op. Elaraby), p. 291; Oil Platforms (Islamic Republic of Iran v. United States of America) (Sep. op. Kooijmans), para. 46; Yearbook of ILC (1996-II), p. 247. [6]Article 17, The International Covenant on Civil and Political Rights (1966). [7] Article 2(4), The Charter of The United Nations (1945). [8]Article 50(1)(a-b), The Articles on the Responsibility of States for Internationally Wrongful Acts (2001). [9]Id., Article 25(1)(a); Thomas Franck, On Proportionality of Countermeasures in International Law, 102 AJIL 715, 741 (2008). [10]Enzo Cannizzaro, The Role of Proportionality in the Law of International Countermeasures, 2001 EJIL 889, 906-07. [11]Supra Note 8, Article 25(1). [12]Id. [13]LG&E International Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, ¶253. [14]CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8, ¶354 [15]Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 I.C.J. 15, ¶128. [16]Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, ¶76. [17]Supra Note 14; Total S.A. v. The Argentine Republic, ICSID Case No. ARB/04/01, ¶114. [18]Supra Note 13, ¶124; Supra Note 14, ¶¶160-161. [19]Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, ¶154. [20]Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, ¶333. [21]Id. [22]Metalpar S.A. and Buen Aire S.A. v. The Argentine Republic, ICSID Case No. ARB/03/5, ¶185. [23]Supra Note 19. [24]CME Czech Republic BV v. Czech Republic, Final award and separate opinion, (2006) 9 ICSID Rep 264, ¶611. [25]Supra Note 18 [26]James Crawford, Brownlie’s Principles of Public International Law, Oxford University Press (2019), p.569. [27]Factory at Chorzów, Germany v. Poland, Jurisdiction, Judgment, PCIJ Series A No 9, ICGJ 247 (PCIJ 1927), ¶48; New Zealand v. France, (1990) 82 ILR 500, ¶114; LaGrand, Germany v. United States, ICJ GL No 104, ¶128(7); Congo, The Democratic Republic of the v. Belgium, [2002] ICJ Rep 3, ¶¶72-77, 78(3); Avena and Other Mexican Nationals, Mexico v. United States, [2004] ICJ Rep 12, a ¶¶128-143. [28]Supra Note 8, Article 35 [29]Id. [30]Id.
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This article is authored by Muskaan Garg, Penultimate Year Student of Law, BBA LL.B., (Hons.), Jindal Global Law School.
I. Introduction In pursuit of peaceful dispute resolution between States, one of the long-standing solutions espoused has been the International Court of Justice’s (ICJ) adjudication in the realm of international law. Customary International Law (CIL) is enshrined under Article 38(1)(b) of the ICJ Statute which empowers the ICJ to apply international custom as ‘evidence of a general practice accepted as law.’ ICJ is bound to abide by this application of international custom and cannot disregard the vital role of general practice (see Nicaragua v. United States of America). Its elusiveness has led to several attempts by the ICJ to define CIL and explore its facets within international law. In ICJ’s interpretation of Article 38, its function is to ‘decide’ and ‘bring an end to the disputes before it’ (see Bosnia and Herzegovina v. Serbia and Montenegro). Article 59 of the ICJ Statute further highlights ICJ’s subsidiary role by declaring its judgments to be non-binding except between the parties and in respect of that case. However, this is all good in theory. Over the years, the uncertainty attached with CIL has legitimised ICJ’s unprecedented degree of influence over its determination. As a result, scholars like Pellet have expressed concern towards the dwindling legitimacy of CIL when ICJ ‘asserts’ its existence instead of ‘proving’ it.[1] Advancing Cassese’s observation of absence of a central law-making body having compulsory jurisdiction in the international legal system[2], it is argued that in exercise of ICJ’s authority in identifying the customary rules and defining their scope and content, it has accidentally or perhaps deliberately gone beyond its judicial role into the realm of law creation. This piece seeks to evaluate this contention through the analysis of three ICJ decisions, Fisheries (United Kingdom v. Norway) (1951) case, Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996) and Legal Consequences of the Separation of the Chagos Archipelago from Mauritius Advisory Opinion (2019). It is argued that ICJ asserts law at its own convenience and is moving away from a strict application of the requirements of state practice and opinio juris as laid down in North Sea Continental Shelf Cases (Germany v. Denmark and the Netherlands). II. Case analysis A. Anglo-Norwegian-Fisheries-Case (1951) The ICJ sided with Norway’s position that the method of delimitation of fisheries zone under the Royal Norwegian Decree of July 12, 1935, was not in contravention of international law. To support its conclusions, the Court relied on a general practice among several states which follow Norway’s straight-base lines method along with a lack of a state practice confirming the 10-mile rule to be an existing rule under CIL. Since it was an early day judgement, there was no reference made to opinio juris. To reach a conclusion, ICJ introduced the persistent objector rule suggesting that where a state acts contrary to an established customary practice and other states concede, it is to be treated as not bound by that original rule.[3] In applying this rule to Norway’s situation, the ICJ in true essence ‘recognised’ the existence of CIL. However, Cassese[4] and Thirlway[5] criticise this rule since it lacks the support of existing state practice. It is argued that by exempting Norway from following the CIL, the ICJ inched towards creating an exceptional rule under CIL. This attempt did manifest law creation tendencies. However, it has not been pleaded for many times since Fisheries and the Asylum (Colombia v. Peru) case as now there is a widespread agreement that the persistent objector rule only applies when a CIL rule is emerging. Therefore, it appears-that-scholars-and-jurists-have-forgiven-ICJ’s-attempt to create CIL since international law was in its nascent stages. The majority judge, Judge Alvarez, in his individual opinion expressly pointed towards the creation of general principles under Article 38 when the same cannot be formed from customs and conventions. That is, “if no principles exist for covering a given question, they must be created to conform to those conditions.” Although, the judgement largely demonstrates an interpretation of CIL, Judge Alvarez’s proposition indicates a possibility of a positive construction of CIL by the Court. It is contentious to approve of this proposition as any CIL rule that the ICJ invents using this understanding would be a legal fiction at best as the Court would not have perceived it but rather assumed it. However, according to Shaw, the situation of non-liquet as anticipated by Judge Alvarez where no applicable law is found is a rarity and general principles are almost always present for closing this gap.[6] Nonetheless, creation of new rules every time the Court is unable to answer a question would undermine the aim of international law – integration of community interests. B. Nuclear-Weapons-Advisory-Opinion (1996) The ICJ concluded that no CIL or conventional law universally prohibits the threat of use of nuclear weapons, but they can be used in case of armed conflict. On reading in fine print, it appears as if there was some opinio juris regarding illegality of threat or use of nuclear weapons but certainly no corresponding state practice. However, the ICJ found none. To reach this conclusion, the Court examined the presence of an opinio juris through analysis of the General Assembly (GA) resolutions. However, in Court’s opinion, the nature of consent under the relevant resolutions still fell short of establishing the existence of an opinio juris on illegality of use of such weapons. To this end, it is contended that the Court seems to place their trust in the GA resolution to come up with an opinio juris. Some have even gone to the extent to argue that in trying to find a source of CIL in GA resolutions, ICJ uses the shield of opinio juris to often create custom.[7] This challenge has been ongoing since Nicaragua v. United States of America wherein the Court similarly referred to the attitude of states towards some GA resolutions which enabled it to extract an opinio juris. However, in the Nuclear Weapons AO, the ICJ seems to have adopted a restrictive approach as it acknowledges-that-resolutions-do-not-make-law-by-themselves-and focused on their normative value in providing evidence for establishing an opinio juris. Although the Court acknowledged the non-binding nature of the resolutions, it failed to provide any other instance or source to establish opinio juris in the matter. The very nature of CIL is dependent on behavioural patterns i.e., customs and not on whether they are legal as is their impression under resolutions. A heavy reliance on GA resolutions is problematic as the United Nations is ultimately a political entity whereby the-reasons-to-support-or-oppose-a-stance-at-GA usually have underlying political motivations which can at no cost transpire into judicial pronouncements as the basis of a decision.[8] The use of such consensus may be beneficial in reaching a further nuanced opinio juris but cannot be the basis of it. Therefore, voting for a resolution cannot be held as conclusive evidence for opinio juris. While-ICJ-may-seem-to-reconsider-its-position-under the Nicaragua judgement, the wording of the Nuclear Weapons A.O. still suggests ICJ’s reliance on resolutions to grant itself power to create custom. In response to the contention that answering a question posed by the GA would require the ICJ to legislate because of absence of a relevant rule in corpus juris, the Court reiterated its task to not only state the existing law but also hinted on expanding its scope and note its general trend in application of the law. Thus, ICJ also seems to normalise the assertion of custom under the garb of application of law. Scholars believe that CIL is moving away from the bottom-up approach of relying on state practice as in the case of Nicaragua to a top-down model of proclaiming the law rather than deducing it.[9] Hence, ICJ seems to depart from the traditional sense of custom and prefer this approach. C. Chagos-Island-Advisory-Opinion (2019) The Court had to ascertain if self-determination was a CIL rule when Mauritius acceded to independence in 1968. A timeline had to be determined for the crystallization of self-determination as a CIL rule. Here the Court again relied on a series of GA resolutions by ascribing it a normative value to only ‘assert’ that self-determination was already a CIL rule at that time. Marko Milanovic is precisely wary of this assertion as neither state practice nor opinio juris was established to reach the conclusion. Milanovic further made a remark that, “[it is] just good plain assertion, as the Court is so often wont [one's customary behaviour] to do.” Thereby, supporting the contention that the Court is often accustomed to assert CIL rules rather than proving them. On-the-subject-of-normative-character-of-resolutions,-the-Court relied on the Nuclear Weapons A.O. to maintain that with regards to the right to self-determination as a CIL norm, the impugned resolution 1514 (XV) has a declaratory character, despite it only being a formal recommendation. In the Court’s view the normative character of the resolution is evident from its wording that, “[a]ll peoples have the right to self-determination”. On comparing the application of the normative value of resolutions in both Chagos A.O. and Nuclear Weapons A.O., it seems it is up to the Court to ascertain the weight attached to the consensus under a resolution. For instance, in Nuclear Weapons A.O. since some states had abstentions to GA resolutions declaring the use of nuclear weapons to be in direct violation of the UN Charter and that the use should be prohibited in certain formulations, the Court saw this as a clear sign of deep concern but still held that these resolutions fell short of establishing an opinio juris on the illegality of nuclear weapons. However, in case of Chagos A.O. also some states had abstentions, but the Court on trusting the wording of the resolution decided to assume its normative character as sufficient to establish state consent. In so far as the application of the law by ICJ is concerned, although the Court claims that it reserves discretion in the application of a CIL rule, the Court often uses this discretion to emphasis importance of certain rules and interest. For example, in paragraph 180 of Chagos A.O., the Court suggests that there exists a binding obligation on all states to cooperate with the UN in completing Mauritius’ decolonisation since self-determination is an obligation erga omnes. Here, the Court seems to use the shield of erga omnes to elevate the existing right to self-determination to the higher level of peremptory norms. According to Eggett and Thin such an elevation often renders the legal meaning of a CIL rule completely obscure. Therefore, the Court-in-defining-the-scope-of-a-rule-sometimes-oversteps-its-customary-basis-and-invents- something-else-which-might-lead-to-unintended-repercussions. III. Final evaluation and the road ahead From North Sea Continental Shelf cases (1969) to Chagos A.O. (2019) through Nicaragua (1986) and Nuclear Weapons A.O. (1996), the Court seems to have inconsistently used its own recipe for identifying CIL, i.e., the twin requirement of opinio juris and state practice. From deriving-opinio-juris-as-a-psychological-element-requiring-higher-standard of proof than showing continuous practice as evidence to deriving its evidentiary value from GA resolutions in Nicaragua and Chagos is a big leap. Moreover, in Chagos no state practice was also relied upon as against one in Fisheries. Therefore, if even after 70 years this inconsistency persists-it-is-safe-to modestly conclude-that-ICJ-asserts-law-at-convenience-on-a-case-to-case basis. Precisely, like in Nuclear Weapons A.O., a sense of convenient behaviour is witnessed in ICJ’s indecisiveness to admit a blanket prohibition of nuclear weapons. Despite referring to multiple treaties on human rights affirming the illegality of nuclear weapons and emphasising indispensability of humanitarian principles, the Court was conveniently unable to find an opinio juris on illegality amongst the states. Moreover, the Court very conveniently relied on the nuclear weapon-possessing states themselves regarding its non-proliferation where the very survival of a State would be at stake (see paragraph 62). The Court specifically observed that the Security Council had no objections to nuclear weapon states making treaty reservation which allowed them to use nuclear weapons in certain circumstances. Further, from the limited analysis in this paper, it is observed that ICJ in finding CIL is keener to rely on GA resolutions in advisory opinions, like in both Nuclear Weapons and Chagos. Reasons-for-it-may-be-rooted-in-the-liberty-that-comes-with-operating in an advisory capacity vis-à-vis while in a judicial capacity of solving disputes between two parties with higher burden.[10] Some even argue that ICJ often reviews and evaluate the resolutions of the political organs through its advisory jurisdiction.[11] Therefore, there might be a hint of politics involved in placing reliance on resolutions. Afterall, they are part of one ecosystem, the UN. Keeping the political malafides debate aside, it is contended that the very nature of CIL is to be blamed for ICJ’s behaviour of accidently creating custom than merely determining it. Jörg Kammerhofer underlines a paradox that, “norms are created in part by acts which are precisely an application of the resultant norm.” [12] The underlying notion is that the act which makes the law is the act to which the law is applied. In the application of the norm, ICJ often tends to sidestep the consideration of all the acts which had led to the formation of that norm. The circling paradox makes it difficult for the Court to separate the assertion and application of the law by using the acts. Ultimately, under CIL, the subject’s behavioural patterns should matter. The continuing trend of extracting opinio juris from resolutions and asserting CIL without valid legal basis will not only compromise CIL’s legitimacy but also ICJ’s own judicial character.[13] In the realm of CIL, irrespective of the non-binding nature of ICJ’s judgements, they are viewed as pronouncements underlining the patterns of conduct that have to be complied with. Therefore, ICJ cannot act independently and its actions are always at the mercy of state preferences since it operates in a state-centric system.[14] Thus, it can be argued that ICJ derives its effectiveness from States’ willingness to accede to its judgements. ICJ’s legitimacy-is-at-stake-when-it-disregards-state-practice-as-then it-seems to be operating without the participation of the States through state consent. Eventually, States will opt-out of ICJ’s jurisdiction, leaving it further powerless. IV. Conclusion Spanning over seventy years, the cases provide a panoramic view of the CIL landscape evoking ICJ’s indispensable influence over CIL. The inconsistency in the basis of ICJ decisions solidifies the belief that ICJ asserts custom at its own convenience and that its interpretation is overly flexible. Whether-it-is-the-adoption-of-the-persistent-objector-rule in the Fisheries case to break the deadlock or reference to GA resolutions for extracting opinio juris. ICJ’s behaviour uncovers its ability to create new rules and that CIL will always have a possibility of being created. Judicial activism must be restricted to unique or otherwise non-liquet situations. Like Judge Alvarez, scholars still maintain that law assertion can occur in circumstances where existing principles fail to provide an answer. However, further research is still solicited. At the end of the day, ICJ’s interpretation must not reduce custom to a fiction and retain its sanctity - in the spirit of international law and comity. [1]A. Pellet, 'Shaping The Future Of International Law: The Role Of The World Court In Law Making', Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Martinus Nijhoff Publishers 2011) [2] A. Cassese, International Law (OUP, 2005) 194-5 [3] Malcolm Shaw, International Law (7th edn, Cambridge University Press 2014) 67 [4] A. Cassese, International Law (New York: Oxford University Press 2005) [5] Hugh Thirlway, ‘The Sources of International Law’ International Law by Malcolm D. Evans (New York: OUP, 2010) 95-121 <https://iilj.org/wp-content/uploads/2016/08/Thirlway-The-Sources-of-International-Law-pp.-95-108-2010.pdf> [6]Shaw (n 3) [7] Loretta Chan, ‘The Dominance of the International Court of Justice in the Creation of Customary International Law’ (2016) 6 Southampton Student Law Review 44 <https://cdn.southampton.ac.uk/assets/imported/transforms/content-block/UsefulDownloads_Download/DF52912B4261406EAAA781C8CEA4DE1A/SSLR%20Vol%206%20Issue%201.pdf> [8]Rosalyn Higgins, ‘The Development of International Law By The Political Organs Of The United Nations’ (1965) 59 Proceedings of the American Society of International Law at Its Annual Meeting (1921-1969) [9] B. Simma and A. L. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’ (1999) 93 AJIL 302, 307 [10] Mark Angehr, 'The International Court of Justice's Advisory Jurisdiction and the Review of Security Council and General Assembly Resolutions' (2009) 103 Nw U L Rev 1007 [11]Ibid. [12]Jörg Kammerhofer, ‘Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems’ (2004) 15 (3) EJIL <http://ejil.org/pdfs/15/3/360.pdf > [13] W. Michael Reisman, ‘Judge Shigeru Oda: A Tribute to an International Treasure’ (2003) 16 Lei-den J. Int’l L. 57, 63 [14] T. Ginsburg, ‘Bounded Discretion in International Judicial Law Making’(2004) 45 Va. J. Int'l L. 631 5/18/2022 What Significance Do the ICJ’s Provisional Measures Bear in the Ukraine v. Russia Dispute ?Read NowThis article is authored by Ahan Gadkari, Research Assistant to Dr. Aniruddha Rajput, Member, UN International Law Commission.
PART-I 1. Introduction On March 16, 2022, the International Court of Justice in The Hague (ICJ) issued an order on provisional measures in the ongoing case between Ukraine and Russia (Case Concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide, Request for the Indication of Provisional Measures, Ukraine vs. Russia, Order of 16 March 2022, hereafter referred to as the "ruling"). The court ordered Russia to stop all hostilities and ensure that conventional Russian forces, and other military groups under Russian command and control, do not engage in continued military action on Ukrainian territory. The provisional measures have effect until the fighting is stopped or until the dispute is settled in a final judgment. Thirteen judges voted in favor of the ruling, and two dissented. Both Ukraine and Russia have ratified Genocide Convention. Ukraine stated that Russia is responsible for two separate violations of the convention. Ukraine first stated that Russia's seemingly untrue allegations that Ukraine had committed genocide against ethnic Russians in Donetsk and Luhansk in themselves constituted a breach of Russia's obligations under the Convention. Ukraine's second allegation was that Russia's ongoing military invasion constitutes a breach of obligations under the Convention (para. 2). The court concluded that Ukraine's claims are plausible. The court further observed that there is a real danger of irreparable damage to Ukraine's rights under the Genocide Convention if Russian hostilities are not stopped immediately (para. 60). The order does not mean that the ICJ has made a final decision on whether the court has jurisdiction over the case. Nor does the decision mean that the court has ruled on whether Russia has violated the Genocide Convention. The court has only taken a preliminary (preliminary) position on these issues. At this stage of the case, it was sufficient for the court to establish that it may have jurisdiction over the case and that the plaintiff's substantive allegations are plausible, without having to consider in detail whether it is likely that Ukraine's allegations will succeed. The court concluded that the conditions for imposing a temporary injunction on Russia with an order to stop the fighting have been met (para. 63 and 64). 2. ICJ's Competence and Jurisdiction The ICJ is a generalist court under Article 7 of the UN Charter. It has jurisdiction to hear all disputes under international law which a State appeals to the Court of Justice, provided that the Court has jurisdiction, in accordance with Articles 34, 35 and 36 of ICJ Statute. Necessary jurisdiction may result either from a state having accepted the jurisdiction of the court on a general basis or in specific areas of law, or that the state has bound itself through a so-called binding clause / provision in a specific treaty, as described in Article 36 of the statutes. The conflict between Russia and Ukraine is in fact about Russia's obvious violation of Article 2(4) of the UN Charter. It follows from the provision that the "use of force" against the "territorial integrity or political independence" of other states is prohibited. According to the ICJ, this is a customary law jus cogens rule; that is, a lex superior norm, a rule that takes precedence over other obligations under international law (see Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Merits), ICJ Reports (1986), 14 , paragraph 190), and also Article 103 of the UN Charter.) An unprovoked war of aggression falls within the core area of the provision. Armed aggression can only exceptionally be used in the territory of other states. In this case, there is no evidence that Russia can invoke the exceptions of self-defense under Article 51 of the UN Charterre also seems to be broad agreement among the vast majority of the world's states that Russia's use of force constitutes a gross violation of the prohibition on power. In General Assembly resolution of 2 March (ES-11/1) entitled "Aggression against Ukraine", Russia's use of force was condemned in strong terms and classified as unlawful use of force under Article 2 (4), see section 20 of the resolution. 141 of the 193 UN member states voted in favour of the resolution. Unlike a Security Council resolution, a General Assembly resolution is not legally binding. It is merely "advisory" per Article 11(1) of the UN Charter. Due to Russia 's position as a veto power in the UN Security Council, and Russia's use of this veto power, the Security Council has not been able to adopt a resolution that Russian use of force is illegal and order that the fighting be ceased. If Russia had not exercised its right of veto, the Security Council would have had the authority to make such a decision per Article 39 and 40 of the UN Charter. At the time Ukraine filed a case against Russia in the ICJ, there was therefore no legal order from an authoritative body ordering Russia to stop the fighting. The ICJ has the competence to deal with questions of law jus ad bellum, the use of force between states, and to order a state to stop illegal fighting, provided that the court has jurisdiction in the case. Like the United States and China, however, Russia has not bound itself to the ICJ’s compulsory jurisdiction over disputes concerning the question of use of force. Ukraine could therefore not sue Russia alleging breach of Article 2(4) of the UN Charter. In order for the ICJ to have the competence to order provisional measures ordering the cessation of Russian hostilities, Ukraine had to choose a different approach to the matter. Ukraine stated that Russia had violated the Genocide Convention by making false allegations of genocide, and used these false allegations as a basis for the invasion of Ukraine. As both Russia and Ukraine have given jurisdiction to the ICJ in disputes concerning the interpretation of the Genocide Convention and the implementation of treaty obligations under the Convention, the Court will have jurisdiction over such a dispute per Article IX of the Convention. The questions that the court had to decide at this stage of the case were whether the conditions were met for being able to issue provisional measures ordering Russia to stop all hostilities. 3. Prima facie jurisdiction The jurisdiction of the court to decide on an interim injunction in an ongoing case before the court follows from Article 41 of the ICJ Statutes. An interim injunction may involve an order for an action or an order to stop an ongoing action. The provision states that the court may adopt a provisional measure if "the circumstances so require" and the court considers it necessary with such an order to protect the rights of one of the parties until the case is finally decided. The detailed conditions for this have been developed through the court's own practice; it must be possible to establish prima facie (preliminary) jurisdiction and establish that there is a potential violation(s) of one of the parties' rights. Furthermore, it must be possible to establish an adequate causal link between the alleged violation of rights and the claim for ordering provisional measures. Finally, it must be possible to prove that there is a real danger of irreparable damage to rights covered by the dispute, and that the risk of damage can be remedied by the provisional measure requested. It follows from Article IX of the Genocide Convention that the parties to the Convention have committed themselves to resolving disputes concerning the interpretation, implementation and observance of the Convention for the ICJ. Since both Ukraine and Russia have ratified the Convention, jurisdiction ratione personae , party jurisdiction, has been fulfilled in the case. To establish prima facie jurisdiction ratione materia, that is, preliminary jurisdiction over the subject matter of the dispute, the court must determine that there is a certain degree of probability that there is a dispute between the parties over which the court has jurisdiction. A dispute arises when there is a real disagreement about either fact or law in connection with the dispute issue. It was not surprising that the ICJ accepted Ukraine's allegation that there is a possible dispute between the parties covered by the Genocide Convention. The ICJ concluded that there is a potential disagreement, both about the fact - whether Ukraine has committed acts that qualify for a genocide, and about the law - whether the use of force is a legal countermeasure against a state that commits genocide. Although Russia has accused Ukraine of genocide, the court found that there is no evidence that Russia has explicitly accused Ukraine of violating its legal obligations under the Genocide Convention. However, the Court emphasized that it is not a requirement that the respondent must have explicitly mentioned a specific legal obligation prior to the action, in order for the ICJ to be able to establish that there is a potential dispute over the fulfilment of obligations covered by the dispute. It was therefore sufficient that the possible disagreement was in reality about the fulfilment of obligations under the Genocide Convention. PART-II 4. Plausible breaches of Russia's Obligations Under the Genocide Convention and the Causal Link Between the Alleged Breaches of Duty and the Demand for an end to Russian Hostilities Following the establishment of prima facie jurisdiction, the ICJ had to decide whether Ukraine's allegations were plausible. In other words, the court had to consider whether it is plausible that Russia's apparently undocumented allegations of genocide against Russians and whether the ongoing invasion of Ukraine constitutes a breach of Russian obligations under the Genocide Convention. The Genocide Convention imposes - in essence - the convention states three things: 1) It obliges the parties to the convention to do everything practically possible to prevent genocide from taking place in their own territory, 2) to make genocide punishable under national law and 3) to do its utmost to prosecute people responsible for planning and / or carrying out genocide, either nationally or by having the person (s) transferred to a competent international tribunal, per Articles I, IV, V and VI of the Convention. The Convention is silent on the consequences of false or erroneous accusations of genocide. A duty not to spread false accusations of genocide must therefore be interpreted in other obligations. For this to happen, the court must make a purposeful and comprehensive interpretation of one or more of the articles of the Convention. Provisions of the Treaty shall be construed in accordance with its "ordinary meaning", in accordance with Article 31(1) of the 1969 Vienna Convention. In other words, the interpretation must be objective and in line with a general understanding of the language. However, treaty provisions cannot be interpreted in isolation without the law enforcer taking into account the purpose and intent of the provision - and the treaty. Individual rules must always be interpreted in the light of the Treaty's preface and read in the context of other rules in the Treaty per Article 31(2). The ICJ has previously made a liberal interpretation of the wording of the articles of the Genocide Convention. In the judgment on the case concerning the application of the Genocide Convention between Serbia and Bosnia, the ICJ stated that a State party that commits genocide, either through a clear and adopted policy or by having effective control over the criminal group, violates its obligations under the Genocide Convention (para. 234). Such an obligation cannot be read directly from the articles of the Genocide Convention. However, the Court interpreted the duty to prevent and prosecute genocide under the Genocide Convention Article I extensively, so that the perpetrator of genocide violates the obligation to prevent and prosecute genocide. By interpreting these obligations in the light of the purpose of the Convention, the court concluded that a prohibition on "carrying out" genocidal acts is embedded in the rule. An erga omnes obligation, a universally binding obligation, not to commit genocide already follows from international customary law. The interpretation of the ICJ that customary international law for State responsibility for genocide and the genocide convention complement each other, therefore makes perfect sense. It would also lead to absurd results if States responsible for carrying out genocidal acts were to escape State responsibility under the convention, while States that fail to prosecute genocide offenders violate the convention. It cannot be ruled out that Ukraine will be heard with its allegation that a prohibition on false accusations of genocide can be interpreted as an obligation under Article I of the Genocide Convention. But compared to the question of state responsibility for carrying out genocide, such an obligation is further from the wording of the terms "duty to prevent and prosecute" genocide in Article I of the Convention. and to "create" a new obligation to which the parties to the treaty have not committed themselves. The latter is outside the jurisdiction of the court. It will probably take a long time for Ukraine to be heard in a final sentencing judgment with its allegation that undocumented accusations of genocide qualify as a breach of the obligations of the Genocide Convention. Nor does the Convention say anything about the possibilities of using force to prevent or stop an ongoing genocide. However, the Convention states that states must resolve disputes under the Convention for the ICJ - by peaceful means per Article IX andArticle 2 (3) of the UN Charter, and that States otherwise have the opportunity to refer matters to the UN Security Council, per Article VIII. The last provision is a reference to the rules below Chapter 7 of the UN Charter, which allows the Security Council to authorize the use of force on the territory of states if necessary to ensure international peace and security, per Article 39, 41 and 42 of the UN Charter. The Security Council's practice shows that even internal conditions, such as an ongoing genocide taking place in the territory of a single state, may qualify for a threat to international peace and security that may trigger a Chapter 7 mandate from the Security Council, with the consequence that the territorial state's right to not to be subjected to armed force in one's own territory is disregarded (see Security Council resolutions S / RES / 918 and S / RES / 955 (1994)). The use of force against another state, which is not authorized in a Security Council resolution or is done in self-defense, is therefore illegal. This applies even if the reason for the use of force is the desire to prevent or stop a genocide. There are currently only a few States that argue that it is permissible to legally carry out a humanitarian intervention without a Security Council mandate. The status of Russia's invasion being illegal, therefore, few doubt, with the exception of Russia itself and a few States (only four states voted against General Assembly resolution ES-11/1, while 35 states abstained). At the same time, it is doubtful whether Russia's use of force is an issue that falls within the scope of the Genocide Convention. Questions about the rightful use of force jus ad bellum is, as mentioned, a question the ICJ cannot take a position on, since Russia has not accepted the ICJ’s compulsory jurisdiction on this. It is therefore not a given that Ukraine's claim that a military invasion constitutes a breach of obligations under the Convention will stand up in a possible main hearing. However, because the case is at a preparatory stage, it was not necessary for the court to rule on whether Ukraine's allegations that Russia has violated the Genocide Convention will prevail. It was sufficient for the court to rule that there is no evidence that Ukraine has committed genocide in Donetsk and Luhansk, and that it is (in any case) doubtful whether the convention allows a state to use force to prevent or stop a genocide. Against this background, the Court concluded that it cannot be ruled out that Ukraine has a right not to be subjected to a military invasion of Russia (para. 59 and 60). Once the Court had opened up the possibility that Russia's actions would affect Ukraine's rights, it was not surprising that the Court concluded that the provisional measures demanded by Ukraine would be an adequate measure to protect those rights (para. 62, 63 and 64). 5. Risk of Irreparable Damage to Ukraine's Rights Under the Genocide Convention if Hostilities are not Stopped The last thing the court had to decide was whether the condition of real and immediate danger of irreparable damage to relevant rights was met. More specifically, the court had to conclude that Ukraine's rights under the Genocide Convention were in immediate danger of being irreparably damaged. Basically, it is a separate condition that its urgency to adopt an interim injunction. As a rule, the condition that it is urgent to have provisional measures adopted is treated together with the danger condition, as one condition. In its ruling, the court thoroughly reviewed the damage that the Russian invasion has inflicted on the Ukrainian civilian population and Ukrainian society (para. 75 and 76). These damages are thoroughly documented by credible and objective sources. The court ruled that there was a real and immediate risk that Ukraine's plausible rights under the Genocide Convention could be violated as a result of the Russian invasion (para. 77). Previous rulings by the ICJ indicate that when a dispute raises issues that in some way concern the danger to life and health, the court will go to great lengths to order adequate provisional measures, even if the right of individuals to life and health lies on the periphery of what the case is legally involved. In the Preah Vihar ruling from 2011, for example, the court concluded that the danger of loss of life and health of Cambodian citizens entailed an element of danger of harm to Cambodia's territorial rights, and Thailand was therefore ordered to withdraw all military personnel from Cambodian territory, The case concerned a dispute over border matters. It was therefore not surprising that the ICJ also this time went to great lengths to temporarily stop the hostilities in Ukraine, even though the rights of the Ukrainian people are not directly covered by the dispute in the case. Although Ukraine has prevailed in the first round of the case, it is far from certain that Ukraine will prevail when the dispute is finally decided during a possible main hearing. As explained in this article, such a result requires that the court must move to the limit of what it has jurisdiction and jurisdiction in the present case. 6. Concluding Remarks The ICJ's ruling is the third decision by an international court, where Russia has received a court order in connection with the hostilities in Ukraine. The European Court of Human Rights (ECtHR) ruled on March 1, 2022, stating that Russian fighting is likely to pose an immediate risk of irreparable damage to rights protected under Article 2 of the European Convention on Human Rights (ECHR) - the right to life, by that acts of war committed by Russian soldiers (and other units under Russian command and control) do not comply with the obligation to provide unimpeded access to civilian population and humanitarian aid. The ECtHR ordered Russia to act in accordance with the international law of war. But this ruling is more like water off a duck’s back as all states have a duty to act in accordance with the international law of war, regardless of a binding order from a court and Russia seems indifferent to this obligation. The ECtHR issued a new ruling on 1 April, 2022, in which the provisional measures of March 1 were continued. In the latest ruling, the ECtHR ordered new provisional measures that Russia must ensure safe evacuation routes for the civilian population. In addition, Russia was required to ensure the population's access to necessary food, medicine and health care. Russia was also required to ensure the free movement of humanitarian personnel. These, too, are obligations that Russia is bound by under international law of war, regardless of whether this is confirmed in a ruling. Russia has now been expelled from the Council of Europe. However, the State is still bound by the ECtHR’s two rulings, as the Russian hostilities were carried out while Russia was still a member State per Article 58(2) of the ECHR. The ICJ's decision is the first and so far only decision by an international dispute resolution body that directly orders Russia to stop all hostilities. Russia is bound by the decision per Article 94(1) of the UN Charter. Russia has already made it clear that it will not respect the ruling. There is no international coercive force under the UN Charter that can carry out physical measures vis-à-vis Russia, to pressure the state to stop the invasion of Ukraine. International law is based on the premise that the states themselves carry out legal orders from dispute resolution bodies to which they are bound. When Russia one day hopefully stops the fighting in Ukraine, it will hardly be due to a legal order to do so. The current circumstances show once again that the question of the use of force between States can hardly be resolved in an international dispute resolution body, at least where the court lacks jurisdiction over jus ad bellum issues. The Court's provisional measures may nevertheless have an important symbolic function in the initial phase of an armed conflict when atrocities against the civilian population are committed. Through provisional measures from the ICJ, a State that is subject to abuse of power can receive recognition that there is a violation of the State's rights under international law, from a respected and (mainly) objective international body. An order for provisional measures can also help shape the political narrative in favour of the state that is attacked. There is broad agreement that a war of aggression, a clear and significant violation of Article 2 (4) of the UN Charter, constitutes a leadership crime under customary international law. Because Russia has not ratified the statutes of the International Criminal Court in The Hague (ICC), the Rome Statute , Putin will hardly be able to be prosecuted and convicted of aggression in the ICC. Ukraine has admittedly accepted the ICC's jurisdiction in connection with war crimes that take place on Ukrainian territory, but the ICC's jurisdiction over the Ukraine war does not include a potential aggression crime under Article 8 bis of the Rome Statute. Time will tell whether the Russian president, will one day be held responsible for starting an illegal war of aggression. Unless the UN Security Council establishes an ad hoc tribunal based on Article 29, 39 and 41 of the UN Charter - modeled on the Nuremberg Tribunal and the Rwanda and Yugoslav courts - with jurisdiction over aggression crimes, it will be demanding to have the President of Russia prosecuted and convicted for starting a war of aggression. As long as Russia has veto power in the Security Council, such a solution today seems practically impossible. But one possibility that remains is for individual states to prosecute Putin under national law, based on the doctrine of universal jurisdiction for international crimes. Due to procedural restrictions (criminal immunity for heads of state), Putin can be arrested on the day he resigns as president. Today, it seems far-fetched to think that in a couple of decades, the world community may wake up to the news that Vladimir Putin has been arrested. But there were probably not many who during World War II had envisioned an international criminal settlement after the war. And from recent times, the example of the arrest of Rwandan war criminal Felicien Kabuga by French police on May 16, 2020 came as a big surprise to the international community, and was something few had imagined a couple of years ago. Perhaps history will once again show that international law and cooperation can win over autocracies, dictatorships and despots. |
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