Thread by @mabecker17

One of the issues in the provisional measures hearings in #Ukraine v #Russia this week is how the parties and the #ICJ deal with the requirement of plausibility of rights. Ultimately, I do not think this should pose a barrier to the ICJ indicating some form of measures. 1/11

Recall that #Ukraine is asking the #ICJ in the main case to find that Ukraine itself has not committed any acts of genocide, contrary to Russia’s accusations. This type of request is novel at the ICJ. 2/11

Even in ‘non-violation’ cases such as US Nationals in Morocco or the Lockerbie cases, the applicant was still asking the ICJ to declare that the applicant’s own actions/decisions were in accord with its international legal obligations. 3/11

No matter. The novelty of #Ukraine’s claim doesn’t change the fact that Ukraine has identified a dispute w/Russia (that is, about whether Ukraine has committed acts of genocide) falling within #GenocideConvention Art IX. 4/11

But under ICJ Statute Art 41, provisional measures may be indicated ‘to preserve the respective rights of either party’. What are the rights at issue in the case, arising from the Genocide Convention, that face irreparable harm and for which #Ukraine seeks urgent relief? 5/11

#Ukraine refers to a right ‘not to be subjected to a false claim of genocide, and not to be subjected to another State’s military operations on its territory’ in 'brazen abuse' of Article I. This has intuitive appeal but these are not express rights granted by the treaty. 6/11

However, the flipside of that description of #Ukraine’s rights is that #Russia’s Art I obligation to prevent & punish genocide must be carried out in good faith, including by the means provided for by the treaty (recourse to UN organs, art XIII, or to the ICJ, art IX). 7/11

#Russia’s obligation to fulfil Article I in good faith is an obligation owed to all contracting parties, including #Ukraine (which is also specially affected here). In other words, Ukraine has a right to see Russia act in accordance with Article I in good faith. 8/11

In my view this right meets the plausibility threshold, and the measures requested are directly linked to preventing further irreparable harm (death & destruction) flowing from #Russia’s alleged failure to have respected that right. 9/11

Finally, I note that the #ICJ sometime shows flexibility on PM requests in situations involving genuine risk of loss of life, even where that risk is linked only indirectly to the underlying legal dispute. Consider the 2011 order in the Preah Vihear interpretation case. 10/11

What this means is that even if the risk of irreparable harm in #Ukraine v #Russia is linked only indirectly to the underlying legal question, the gravity of the potential harm may be enough to soften the ‘plausibility’ and ‘link’ requirements. END #UkraineRussianWar #ICJ