Рассмотрение исков о расовой дискриминации: вопросы юрисдикции и приемлемости в деле «Украина против России»

Abstract

INTRODUCTION. Over the past decade, the International Court of Justice has been requested to adjudicate on claims under 1965 Convention against Racial Discrimination (CERD). While adjudication under treaty compromissory clauses is not uncommon, the Court’s jurisdiction under CERD is subject to conditions that are not replicated under other multilateral treaties. Therefore, the Court’s use of compromissory clause under CERD raises complex issues of treaty interpretation as well as of the Court’s compliance with consensually established limits of its own authority.MATERIALS AND METHODS. The article proceeds to examine the Court’s application of jurisdictional clause under Article 22 CERD in the case of Ukraine v Russia from the positivist legal perspective. It assesses the Court’s use of treaty interpretation methods relating to the text and context of Article 22, as well as CERD’s object and purpose. After assessing the Court’s analysis of its jurisdiction, the article proceeds to examine the Court’s use of the rule on exhaustion of local remedies which is one the condition of the admissibility of claims in cases relating to treatment of individual and their groups.RESEARCH RESULTS. The article demonstrates that the Court’s interpretation of Article 22 CERD does not accurately identify the meaning of this provision, especially the meaning of the word “or” contained in it. As a consequence, the Court ends up asserting jurisdiction in the case before the Committee established under CERD has dealt with it. Moreover, the Court concludes that the victims of alleged racial discrimination do not have to exhaust local remedies. This conclusion places the Court at odds with previous jurisprudence of all major international tribunals.DISCUSSION AND CONCLUSIONS. It becomes clear that the Court has asserted jurisdiction over the case even though CERD provisions did not confer that jurisdiction to it, and that local remedies were not exhausted anyway. As this face forms one rather small part of overall Russia-Ukraine relations, a temptation could obviously arise to justify the Court’s flawed legal reasoning by considerations of ethics, politics, ideology or justice. However, positivist legal reasoning requires maintaining that the Court operates on the basis of State consent, and any neglect for that fact risks negative consequences for the overall efficiency of international adjudication.