Case Watch: Ukraine ICJ Ruling Strengthens Protections against Discriminatory Use of Citizenship Law
By Natasha Arnpriester & Laura Bingham
The decision of the International Court of Justice (ICJ) on November 8 to proceed with a case brought by Ukraine against the Russian Federation over their ongoing conflict was a significant legal win for the Ukrainian government. However, the ruling also marked an important advance for international protections against racial discrimination—by acknowledging that the design and application of laws on nationality are subject to the international anti-discrimination convention, and by clarifying the procedures for bringing such issues before the ICJ.
Ukraine’s complaint to the ICJ, submitted in January 2017, has two parts. It accuses Russia of breaching the International Convention for the Suppression of the Financing of Terrorism, through its support for rebels operating in eastern Ukraine, and its role in the shooting down of flight MH 17, killing 298 people.
Secondly, it argues that Russia breached the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in the occupied Crimea peninsula, through systematic discrimination against Crimean Tatars and ethnic Ukrainians living in the territory.
This discrimination, detailed in a June 2018 report by the Justice Initiative, flowed from Russia’s forced imposition of citizenship on the entire population of Crimea in 2014, which was followed by wide-ranging efforts to erase Tatar and Ukrainian ethnic identities. Forcible attribution of citizenship factored in many of the alleged acts and overall pattern of “cultural erasure” at the heart of Ukraine’s case under CERD.
Russia countered the CERD complaint with two main arguments: first, that CERD does not apply to the letter or application of nationality law, but only to discrimination within a citizen body; and second, that Ukraine’s CERD complaint did not meet the procedural requirements to be referred to the ICJ.
Russia argued firstly that CERD does not apply to many of Ukraine’s allegations including the citizenship-related ones, as the discrimination complained of involved distinctions between citizens and non-citizens. Russia relied on CERD Article 1(2), which excludes “distinctions” or “preferences” between citizens and non-citizens, and Article 1(3) that likewise restricts the application of CERD with respect to laws concerning nationality or citizenship “provided that such provisions do not discriminate against any particular nationality.”
The Court has yet to consider the merits of Ukraine’s allegations. But in its ruling it held there was a case to be heard, because if sufficient evidence exists to conclude that citizenship laws were adopted or executed with the purpose or effect of racial discrimination, a violation of CERD could be found.
This ruling from the Court has clarified an important principle, that the work of the Justice Initiative has long sought to emphasize: that states cannot use exclusionary citizenship laws to discriminate, because citizenship law is neither weapon nor shield as far as racial discrimination is concerned.
Russia’s additional procedural challenge focused on Article 22 of the CERD, which provides that a case can only be heard by the ICJ if it is “not settled by negotiation or by the procedures expressly provided for in [CERD].”
The ICJ has only considered a CERD Article 22 argument once before, in Georgia v. Russia , which Georgia filed following the Russian invasion of its territory in 2008. Georgia’s complaint, like Ukraine’s, centered on the issuing of Russian passports to citizens in South Ossetia—legally Georgian territory but under Russian control—and discriminatory treatment against those retaining their original—in this case, Georgian—nationality.
In that case, decided in 2011, Georgia claimed that it attempted negotiations with Russia. But the Court noted that Georgia had only given Russia notice of a dispute three days prior to submitting its application to the ICJ, and that over those three days, only unilateral statements were made by both parties regarding Russia’s breach of CERD.
In Ukraine’s case, however, the Court recalled that Ukraine had transmitted multiple requests to Russia. Three rounds of negotiations in Minsk over a two-year period followed. As such, the Court reasoned that not only did these acts demonstrate a “genuine attempt” at negotiation, but that Ukraine and Russia’s positions on the dispute had not changed, indicating negotiations had indeed become futile.
This decision enabled the Court to turn to an untested jurisdictional question that it was unable to deliberate on in Georgia v. Russia. Article 22 states that any dispute “which is not settled by negotiation or by the procedures expressly provided for in [CERD], shall, at the request of any of the parties to the dispute, be referred to the [ICJ] for decision…” Here, the Court grappled with whether this means that the failure of negotiations must be followed by a second effort, "the procedures…provided for in [CERD]”— essentially a settlement discussion facilitated by the United Nations’ CERD Committee.
Linguistically, the court reasoned that the text is equivocal. But it concluded that it would not make sense for Ukraine to begin a second round of discussions with Russia, since the two states had already failed to reach an agreement through negotiations.
To buttress its opinion, the Court noted that CERD requires States to undertake measures that eliminate racial discrimination “without delay” “immediate[ly]” and “speedily.” Should both processes be required, this would be undermined. As a result, the Court ruled, by a vote of 15-1, that the procedural preconditions for its jurisdiction under Article 22 were satisfied.
While this nascent precedent has not yet developed strictly defined parameters, the ruling does provide additional instruction to states interested in bringing claims before the ICJ on matters encompassed in the CERD. Time will tell how it progresses and it will be tested again in Qatar v. United Arab Emirates, which invoked Article 22 in June 2018.
Natasha Arnpriester is an Aryeh Neier Fellow with the Open Society Justice Initiative.
Laura Bingham is the senior managing legal officer for equality and inclusion in the Open Society Justice Initiative.