Massimo Lando Profile picture
Feb 28 21 tweets 12 min read

A few thoughts about #Ukraine’s case at the #ICJ. Some have already tweeted on this (@OriPomson, @VidigalGeraldo, @amirafarhadi, @niccoloridi and @mabecker17 among others)—here’s my take. ✍🏻

#UkraineRussiaWar #UkraineInvasion

Ukraine’a Application:…
Apologies in advance for getting all #ICJ on this. 👩🏻‍⚖️

I understand the political decision for making an application to the ICJ. This thread is in no way a judgment of that decision, which is very well founded in the terrible events of the last week especially.
That said, Ukraine has (sadly but realistically) an uphill battle both to obtain the #provisionalmeasures it seeks (link to request below) and in the eventual #preliminaryobjections.…
Preliminary (known) point: Ukraine started the case based on the 1948 #GenocideConvention (see compromissory clause below). Ukraine’s claims must be anchored in that treaty for the case to proceed to the merits—and (prima facie) for the ICJ to indicate provisional measures.
Why does Ukraine have an uphill battle? 🗻

Two words: #jurisdiction and #plausibility.

First, for the ICJ to have jurisdiction under the Genocide Convention, Ukraine must show that there is a dispute on the “interpretation, application or fulfilment” of the Convention. 🧑🏼‍💼
Second, for the Court to indicate provisional measures, the rights that Ukraine invokes must be plausible, as must be the claims that those rights have been breached by the #RussianFederation.
(1) Jurisdiction

The ICJ will apply the #OilPlatforms test—to establish whether Ukraine’s claims “fall within the provisions of the convention”.

That means that Ukraine must show that Russia’s actions can breach its rights under the Genocide Convention. The question is…
…What rights is Ukraine invoking under that Convention?

Ukraine says those are rights to be free from unlawful actions, “including military attack”, based on Russia’s unsubstantiated claims that Ukraine is committing #genocide in #Donetsk and #Luhansk.
Four points:

(i) The “true object” of Ukraine’s claim seems to be to have the ICJ state, even indirectly, that Russia’s military actions are unlawful. Will the ICJ use a “true object” test to establish if it has jurisdiction and throw out the case? 🤔…
(ii) Can Ukraine rely on the *controversial* Oil Platforms approach, where #Iran claimed that the #US breached its right to freedom of commerce by bombing oil rigs in the #PersianGulf? To me, Russia’s actions seem even more remote from a breach than the US actions against Iran.
(iii) Ukraine’s claims are based on Russia’s allegations of genocide, which are in turn based on Russia’s recognition of Donetsk and Luhansk as States. Ukraine seems also to be asking to adjudicate (indirectly) on the unlawfulness of #recognition.

I doubt the ICJ could do so.
(iv) Ukraine’s claim looks like “non-violation” complaints at the #WTO. But the ICJ has not, I believe, ever entertained such complaints. A potential breach is necessary for the ICJ to have jurisdiction. I am unsure Ukraine can show a breach under the Genocide Convention. 🧐
At the provisional measures stage, these four points fall to be assessed only on a prima facie level—which may be enough for Ukraine to win on (prima facie) jurisdiction.🥇

Even if so, that’s when plausibility could become a sticking point. 👀
(2) Plausibility

The ICJ must assess plausibility in respect of (at least some of) the rights Ukraine claims on the merits (see above, 8th tweet from the top). These rights include “not [to] be subject… to military operations” based on an abuse of the Genocide Convention.
Three points:

(i) Is it plausible for Ukraine to have a right not to be subject to false claims of genocide? I’m not sure—the ICJ has not entertained “non-violation” complaints. This looks like an #abuseofrights claim, which, I think, has never justified provisional measures.
(ii) Even if plausibility and prima facie jurisdiction overlap, plausibility is a higher standard. Winning on prima facie jurisdiction does not *necessarily* mean winning on plausibility. 🔄
(iii) Ukraine’s rights really seem to stem from #IHL, as a necessary precondition to the claim that Russia is breaching the Genocide Convention. Could that affect plausibility? Possibly, even if the ICJ has never assessed the “true object” of a claim in a plausibility analysis.
What will the ICJ do?

Difficult to say. The Court is made of humans who, as such, cannot be immune from the tragedy that is taking place in Ukraine. My guess is that the Court may indicate *some* provisional measures. What its reasoning to justify that will be, we shall see. 💬
But Ukraine’s request could put the ICJ in a tough spot: if it doesn’t act, it will be criticised for not being on the right side of history; if it does act, it might be criticised for its less-than-cogent reasoning.

But one does seem to be the lesser of two problems.
Truth be told, the ICJ case is small beans by comparison to what is taking place on the ground.

While the legal issues may be interesting for us PIL lawyers, what matters are the lives of millions Ukrainians (and others) affected by Russia’s actions. My heart…
…and thoughts are with the people of Ukraine.

If an ICJ case were to proceed, at least may it be helpful to stop the fighting. 🙅🏻‍♂️


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More from @MF_Lando

Oct 13, 2021
Thread 🪡

Yesterday, @CIJ_ICJ handed down its judgment on the #maritimeboundary between #Somalia and #Kenya. This was the first judgment since the Court’s renewal in February 2021 and Judge Donoghue’s election as President (source of all images: @CIJ_ICJ). 👩🏻‍⚖️
Kenya did not appear at the oral proceedings before the ICJ after appearing at the preliminary objections phase (link to preliminary objections judgment below). However, the ICJ could rely on its written submissions, filed before deciding not to appear.…
Somalia and Kenya had very different views on their maritime boundary. Somalia argued that there was no agreed boundary, so that the ICJ had to delimit a boundary by the 3-stage approach in use since the 2009 #BlackSea case (link below, [115]-[122]). 👩🏽‍💼…
Read 25 tweets

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