How ICJ's Order In Ukraine's Plea Creates Binding Obligations On Russia?

The International Court of Justice (ICJ) at the Hague, Netherlands, on Wednesday by 13 votes to 2 issued its order on provisional measures in the case instituted by Ukraine against Russia under the Genocide Convention. It was further averred that its order on provisional measures creates binding international legal obligations under Article 41 of the Statute of the International Court of Justice (ICJ Statute). Granting Ukraine's request for provisional measures, the ICJ ordered Russia to "immediately suspend military operations that it commenced on 24 February 2022 on the territory of Ukraine." Furthermore, Russia has also been directed to ensure that any irregular units or individuals or organisations under its effective control take no steps in furtherance of Russia's military operation.The aforementioned two orders were passed by a majority of 13 votes against 2, with Indian judge at ICJ Justice Dalveer Bhandari voting in favour of the majority. It may be noted that Vice-President of the ICJ Judge Kirill Gevorgian (Russia) and Judge Sue Hanqin (China) voted against the order indicating provisional measures. However, all the judges of the ICJ unanimously directed both Ukraine and Russia to ensure that they refrain from any action which can aggravate or extend the dispute before the Court. A bench of 15 judges of the ICJ had concluded hearing the matter on March 7, 2022. Oral submissions had been advanced only by Ukraine as Russia had refused to participate in the proceedings. The Court on the last date of hearing had expressed regret over such non-appearance and accordingly President of the ICJ Judge Joan E Donoghue had remarked, "The Court regrets the non-appearance of the Russian Federation in these oral proceedings."On Wednesday, the ICJ at the outset expressed its regret at the non-appearance of Russia in the proceedings and accordingly observed, "The Court regrets the decision taken by the Russian Federation not to participate in the oral proceedings on the request for the indication of provisional measures, as set out in the above-mentioned letter of 5 March 2022. The non-appearance of a party has a negative impact on the sound administration of justice, as it deprives the Court of assistance that a party could have provided to it. Nevertheless, the Court must proceed in the discharge of its judicial function at any phase of the case". Order on provisional measures creates binding international legal obligations under Article 41 of the ICJ Statute While issuing its order on provisional measures, the ICJ underscored that its order creates a binding obligation under Article 41 of the ICJ Statute. Reliance was also placed on its LaGrand decision (Germany v. United States of America) dated 27 June 2001. "The Court reaffirms that its "orders on provisional measures under Article 41 [of the Statute] have binding effect" (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to whom the provisional measures are addressed", the order averred. The ICJ in its judgment in LaGrand had applied a purposive interpretation to deal with the ambiguities of Article 41 of the ICJ Statute. The Court had held that its power to indicate provisional measures which are binding in nature flows from the object and purpose of the Statute. It had been further stipulated that that the power to indicate provisional measures entailed 'that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court'. The Court had further underscored that Article 94 of the United Nations Charter (UN Charter) did not prevent Orders made under Article 41 from having a binding character and neither did the preparatory work.It has not always been clear whether the provisional measures by the ICJ were legally binding. This was due mainly to the wording of Article 41 of the ICJ Statute, referring to the power to 'indicate' provisional measures, which 'ought' to be taken. In an effort to circumvent such an ambiguity, the more recent UN Convention on the Law of the Sea (UNCLOS) stipulates the power to 'prescribe' rather than 'indicate' provisional measures.Article 94 of the UN Charter Mandates Member States to comply with ICJ's decisions It may be noted that the Statute is an integral part of the UN Charter, as specified by Chapter XIV of the United Nations Charter, which established the ICJ. All 193 UN member states are parties to the Statute by virtue of their ratification of the UN Charter. By signing the UN Charter, pursuant to Article 94, a Member State of the United Nations undertakes to comply with the decision of the Court in any case to which it is a party. Both Russia and Ukraine countries have signed and ratified the UN Charter.Provisional measure directing...

How ICJ's Order In Ukraine's Plea Creates Binding Obligations On Russia?

Aaratrika Bhaumik

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