D ECLARATION OF J UDGE T OMKA
Order on provisional measures Scope of the first measure ordered Insufficient
attention paid to reasons underlying decisions of the Supreme Court of Crimea and the Supreme
Court of the Russian Federation Lack of urgency.
1. My vote on point 1 of the operative clause calls for some explanation. While I agree that,
in view of its obligations under Articles 2 and 5 of the International Convention on the Elimination
of All Forms of Racial Discrimination, the Russian Federation has an obligation to “pursue by all
appropriate means . . . a policy of eliminating racial discrimination” (Article 2) and to prohibit and
eliminate racial discrimination in the enjoyment of certain rights, such as for instance, the “right to
freedom of peaceful assembly and association” (Article 5 (d) (ix)), by all Crimean Tatars, I
consider that the Court is going too far when it requires the Russian Federation to “refrain from
maintaining . . . limitations on the ability of the Crimean Tatar community to conserve . . . the
Mejlis” (paragraph 106 (1) (a)).
2. The activities of the Mejlis, the 33-member representative and executive body of the
Crimean Tatar people elected by the Kurultai , the congress of that people, were banned by the
Supreme Court of Crimea on 26 April 2016, on the proposal of the Prosecutor of Crimea, having
been found to be an “extremist organization” that was supporting “extremist activities”. That
decision was appealed to the Supreme Court of the Russian Federation which, by a judgment dated
29 September 2016, confirmed the ban. These judgments were brought to the attention of this
Court which, however, remains silent about their content, thus raising a question whether it paid
any attention to these judicial decisions. The measure now indicated by this Court under point 1 of
the operative clause can be read as requiring the Russian Federation to lift or at least suspend the
existing ban on the activities of the Mejlis. This raises some concerns.
3. First, the Russian Federation pointed out during the hearings that the judgment of the
Supreme Court of Crimea provided a number of reasons said to justify the decision to ban the
activities of the Mejlis. The Supreme Court made reference to statements made by leaders of the
Mejlis encouraging “a full-scale military conflict with Russia”, the declaration of “a state of war
with Russia”, and urging preparation for “open war” with it. These statements were not disowned
by the Mejlis. The leaders of the Mejlis were also involved in organizing a blockade of freight
transportation of goods to Crimea. The Mejlis leaders urged Ukraine to stop any trade with, and
any supply, including electricity, to Crimea. According to the Supreme Court of Crimea, the Mejlis
also participated in November and December 2015 in the organisation of a blockade preventing the
speedy repair of electricity transmission lines from Ukraine to Crimea, destroyed by an explosion
in November 2015, thus causing the disruption of power supply to vital infrastructure and
households in Crimea for several weeks in the winter period. Those reasons were confirmed in the
appellate decision of the Supreme Court of the Russian Federation. Moreover, certain reports from
international organizations appear to confirm that at least certain of these activities have taken
place. The Russian Federation submitted that “[i]n the light of this evidence, it is difficult to argue
that Russia was not manifestly entitled to ban the Mejlis and to take the necessary steps to protect
public order.”
1Ukraine uses this transcription of the name of the body, the Russian Federation refers to it as the Qurultay, like
the official website of the Mejlis of the Crimean Tatar People. As the Court refers in this Order to Kurultai, I follow it in
using that term. - 2 -
4. It is not appropriate at the provisional measures stage to reach any firm conclusion on
these issues. However, I am concerned with the cavalier approach of the Court in requiring the
Russian Federation to alter the decision adopted by a judicial body, and affirmed on appeal by its
highest judicial authority, without any consideration having been given to these issues. This Court
does not act as a court of appeal from national courts and should not simply overturn the decisions
of such courts, in particular at the provisional measures stage (cf. LaGrand (Germany v. United
States of America), Judgment, I.C.J. Reports 2001, p. 486, para. 52).
5. It has to be noted that the purpose of the International Convention on the Elimination of
All Forms of Racial Discrimination is to guarantee the equality of all human beings in rights by
prohibiting and eliminating racial discrimination in the enjoyment of civil, political, economic,
social and cultural rights. These rights as such are recognized in other international instruments,
such as the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights. These rights are, however, not unlimited. For instance,
restrictions can be imposed on the freedom of peaceful assembly and association under Article 21
(second sentence), and Article 22, paragraph 2, of the International Covenant on Civil and Political
Rights. Such restrictions can be “imposed in conformity with the law” (Article 21) or “prescribed
by law” (Article 22, paragraph 2) when they are “necessary in a democratic society in the interests
of national security or public safety, public order (ordre public), the protection of public health or
morals or the protection of the rights and freedoms of others.” What the International Convention
on the Elimination of All Forms of Racial Discrimination guarantees is that any such restriction
shall not be based on racial considerations, resulting in racial discrimination. On the other hand,
the International Convention on the Elimination of All Forms of Racial Discrimination does not
provide for immunity from such restrictions when their imposition is necessary for the
above-mentioned purposes.
6. When considering requests for provisional measures the Court is expected to weigh and
balance the respective rights of the parties in light of their arguments. This has been the practice of
the Court in a number of cases (see, e.g., Questions relating to the Seizure and Detention of Certain
Documents and Data (Timor-Leste v. Australia), Provisional Measures, Order of 3 March 2014,
I.C.J. Reports 2014, pp. 154-155, 157-158, paras. 33, 36, 42, and 46; Pulp Mills on the River
Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports
2006, pp. 130-131, paras. 66 and 67; Passage through the Great Belt (Finland v. Denmark),
Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 16, para. 16; Fisheries
Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J.
Reports 1972, pp. 16-17, paras. 22-24). Recent jurisprudence of the International Tribunal for the
Law of the Sea provides another example of this exercise (see Delimitation of the Maritime
Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Provisional Measures, Order of
25 April 2015, ITLOS Reports 2015, pp. 164-165, paras. 96, 99-102). As Judge Abraham has
opined
“[w]hen acting on a request for the indication of provisional measures, the Court is
necessarily faced with conflicting rights (or alleged rights), those claimed by the two
parties, and it cannot avoid weighing those rights against each other. On one side
stands (stand) the right (rights) asserted by the requesting party, which it claims to be
under threat and for which it seeks provisional protection, and on the other the right(s)
of the opposing party, consisting at a minimum in every case of the fundamental right
of each and every sovereign entity to act as it chooses provided that its actions are not
in breach of international law. Yet the measure sought by the first party from the Court
often — as in the present case — consists of enjoining the other party to take an action
which it does not wish to take or to refrain — temporarily — from taking an action
which it wishes, and indeed intended, to take. In issuing such injunctions, the Court
necessarily encroaches upon the respondent’s sovereign rights, circumscribing their - 3 -
exercise.” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional
Measures, Order of 13 July 2006, I.C.J. Reports 2006, Separate Opinion of Judge
Abraham, p. 139, para. 6).
7. There is a dispute between the Parties as far as sovereignty over Crimea is concerned. The
Court cannot rule on this matter as it is beyond its jurisdiction and Ukraine, knowing the limits of
the Court’s jurisdiction ratione materiae, has not asked the Court to make any pronouncement on
this highly contested issue. What is, however, not disputed is the fact that the Russian Federation
exercises control and jurisdiction over Crimea. Both Parties are in agreement that the International
Convention on the Elimination of All Forms of Racial Discrimination is applicable to Crimea and
the Russian Federation has obligations thereunder as far as people in that territory are concerned.
Whatever is the legal basis for the exercise of control and jurisdiction in the territory of Crimea by
the Russian Federation and the applicability of the International Convention on the Elimination of
All Forms of Racial Discrimination, the Russian Federation must be able to take measures
necessary to ensure public order and safety. This, in my view, needs to be taken into account when
considering what kind of measures should be indicated by the Court in the present case.
8. Moreover, one of the requirements for the Court to order provisional measures is that it be
satisfied that there is urgency, in the sense of there being “a real and imminent risk that irreparable
prejudice will be caused to the rights in dispute before the Court gives its final decision” (Questions
relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia),
Provisional Measures, Order of 3 March 2014, I.C.J. Reports 2014, p. 154, para. 32, emphasis
added). While the Court has once again articulated this requirement, explaining urgency as there
being “a real and imminent risk that irreparable prejudice will be caused to the rights in dispute”
(Order, paragraph 89, emphasis added), it applies it in a rather ‘loose’ way. It, first, states that
various “rights stipulated in Article 5, paragraphs (c), (d) and (e) of [the International Convention
on the Elimination of All Forms of Racial Discrimination] are of such a nature that prejudice to
them is capable of causing irreparable harm” (Order, paragraph 96, emphasis added), in order then
to conclude that it considers that there is an imminent risk that the acts, described earlier in the
Order, “could lead to irreparable prejudice to the rights invoked by Ukraine” (Order, paragraph 98,
emphasis added). I am not convinced that such requirement of urgency has been shown to exist in
the case at hand.
9. The claims made by Ukraine are likely to be adjudicated within the next four years. It
may be noted that the Russian Federation has presented evidence that there are a number of other
organizations of Crimean Tatars in Crimea. Whether or not they have “the same degree of
representativeness and legitimacy as the Mejlis” (see Order, paragraph 97), Ukraine does not deny
that these organizations exist, and they appear to be in a position to advance the interests of the
Crimean Tatars to at least some extent during the intervening period. Moreover, the Kurultai,
which elected the Mejlis and which constitutes the highest assembly of Crimean Tatars, has not
2
been, according to the Russian Federation, prohibited . According to information in the public
domain, it appears that the ban on the activities of the Mejlis has now, some six months after the
final decision of the Supreme Court of the Russian Federation, been challenged before the
European Court of Human Rights as involving the alleged violation of several provisions in the
1950 Convention for the Protection of Human Rights and Fundamental Freedoms.
This statement was not contradicted during the hearing by Ukraine. - 4 -
10. For the above reasons, I am of the view that the first measure indicated by the Court is, in
the circumstances, inappropriate, while I agree that the obligations of the Russian Federation under
the International Convention on the Elimination of All Forms of Racial Discrimination remain
unaffected.
(Signed) Peter T OMKA .
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Declaration of Judge Tomka