A Commentary on the Judgment of the International Court of Justice of 31 January 2024 in Application of the ICSFT and CERD (Ukraine v. Russian Federation)

Abstract

This article highlights the most crucial aspects of the Judgment of the International Court of Justice of 31 January 2024 in 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) (hereinafter — Judgement of 31 January 2024) initiated by Ukraine after the events in Crimea in 2014. Ukraine claimed that Russia violated numerous provisions of the said conventions by refusing to cooperate with Ukraine within the International Convention for the Suppression of the Financing of Terrorism (hereinafter — ICSFT) framework in investigating potential cases of financing of terrorist activities, which Ukraine was accusing the armed groups in Donetsk People’s Republic and Luhansk People’s Republic, as well as by carrying out a policy of racial discrimination against Crimean Tatars and ethnic Ukrainians, living in Crimea, in violation of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter — CERD). Most of Ukrainian claims were fairly rejected by the Court, which was due to correct application by the Court of the relevant provisions of the ICSFT and CERD and balanced evaluation of the evidence submitted by the parties. At the same time, some of the Court’s conclusions seem to be not entirely consistent. Namely, the Court did not provide any substantial assessment of Russia’s defence based on the “clean hands” doctrine, apart from relying on its unclear status in international law and a formalistic argument of its inapplicability on the merits stage of the case. Equally questionable are the arguments on presumption of discrimination in relation to ethnic Ukrainians and violation of their rights to receive education in their native language, which were made purely on the basis of the fact that the number of students, receiving education in the Ukrainian language, substantially declined after 2014. Nevertheless, the generally restrained approach to the arguments regarding interpretation of the ICSFT and CERD and to the evidence submitted by the parties allows one to conclude that in the Judgement of 31 January 2024 the Court demonstrated clear understanding of its role and functions, as well as of the limits of its mandate under the ICSFT and CERD.