BGP Litigation senior associate Anton Pomazan speaks with Kommersant about the case brought by Ukraine against Russia in the International Court of Justice in The Hague alleging the violation of two conventions
03.03.2017

"According to Anton Pomazan, a senior associate at BGP Litigation, in practice it can take one to two months for a request for provisional measures to be considered. But the court essentially has no mechanism enabling it to monitor compliance with such measures. A copy of the ruling ordering provisional measures is sent to the UN Security Council. However, the Security Council cannot force a country to comply with them. Since the International Court of Justice first opened its doors, provisional measures have been ordered in more than 35 cases, or about a third of all the cases heard. However, in practice it is rare that provisional measures ordered by the court are complied with in full by states", explains Anton Pomazan. 

Judgments of the International Court of Justice are final and cannot be appealed. According to Art. 94 of the UN Charter, each member of the organization undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. But lawyers have expressed doubts that Russia will be found guilty. "Regarding the accusation that the RF is in breach of the Terrorist Financing Treaty, Ukraine would have to prove the matter in dispute, which clearly attests to irreconcilable differences between the two parties in dispute. Given the fact that Russia is acting as an intermediary under the Minsk Accords and is aiming, together with Germany and France, to settle the conflict in eastern Ukraine, proving the matter in dispute and the RF's status as defendant will be far from simple for Ukraine", explains Anton Pomazan".  


Expanding on those comments, Anton Pomazan added that the Statute of the International Court of Justice does not establish any specific time frame within which cases are to be heard. In practice, proceedings in the ICJ take four years on average. That protracted length of time is attributable to the copious pleadings, as well as the complexity and difficulty of the cases heard by the court. 

According to Article 41 of the Statute, notes Anton Pomazan, the Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the rights of either party. Article 74 of the Rules of Court provides that a request for the indication of provisional measures shall have priority over all other cases. 

If a judgment is not complied with, says the BGP Litigation senior associate, the UN Security Council can issue recommendations or take steps to enforce judgments of the ICJ upon application by a party to the dispute. In the history of the ICJ the UN Security Council has been requested to enforce a judgment only once: in 1986, Nicaragua sought enforcement of the Court's judgment ordering the United States to cease and refrain from military action in Nicaragua. The UN Security Council prepared a corresponding resolution, but it was never adopted. Broadly speaking, judgments of the International Court of Justice are complied with voluntarily for two reasons: first, states resort to the ICJ when they find themselves in a dispute that cannot otherwise be resolved, so the ICJ ruling represents the only way to bring an end to the conflict; and second, failure to comply with an ICJ judgment adversely effects a country's political reputation. 

Therefore, notes Anton Pomazan, the possibility cannot be excluded that the dispute initiated by Ukraine in the International Court of Justice accusing Russia of violating the aforementioned treaties will ultimately not be considered on the merits.  


The full article (in Russian) is available here: "Украина хочет отсудить у России имидж". 

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