The ICJ’s order on provisional measures requested by Ukraine

Today the order of the International Court of Justice (ICJ) on provisional orders requested by Ukraine in its contentious case against Russia was published.

The decisions of the order do not contain anything surprising. The Court has not taken a position on the merits of the application of Ukraine, it has found that prima facie it has jurisdiction, Russia is obligated to cease its military operations, and both parties shall refrain from escalating the situation any further. All other requests have been denied, so the president of Ukraine’s tweet about “complete victory” seems to be a bit exaggerating, but this is something inevitable in the current political situation.

You can also find some information in the published order about the Russian counterarguments, presented in the meantime. Those are based on the jurisdiction issues I have outlined in my earlier post. The Court has no jurisdiction to examine questions related to use of force, only related to the Genocide Convention, and Russia argues that it uses force not on the basis of that, but on the basis of customary law and Article 51 of the UN Charter, meaning the practicing of self-defense – this way the jurisdictional clause in Article IX of the Genocide Convention is not applicable. Currently the Court has tackled this argument with currently not dealing with the situation on the merits, but as international law dictates the peaceful settlement of disputes as a general obligation, it is entitled to create these obligations as provisional measures.

It is important to emphasize that this decision is not the judgment in the case. That will take months or even years to be adopted.

The first hearing in Ukraine’s case against Russia before the ICJ

The International Court of Justice (ICJ) has held the first public hearings yesterday on the request for the indication of provisional measures presented by Ukraine in its case initiated against Russia recently. As indicated earlier, the case is based on the Genocide Convention, its Article IX providing jurisdiction for the Court.

Video recording of the hearing can be watched online at the UN Web TV.

Not surprisingly, the Russian Federation was not represented by any delegation or agent. This is not rare, it has happened a few times, that the defendant state does not appear in the courtroom. Of course this sends a very bad message, but it does not have any effect on the proceeding of the Court. Currently, it will definitely be seen by everyone as Russia not even trying to defend its vocal position about the “genocide”, which will not help its credibility at all.

The “other The Hague” – the ICC and the Ukraine-Russia conflict

Questions about violations and possible war crimes comitted during the conflict become more and more vocal, and we hear more and more about the option of the “other The Hague” court – the International Criminal Court (ICC), created in 1998, in operation since 2002 (not to be confused with the International Court of Justice (ICJ), which is tasked with inter-states disputes).

As neither Ukraine nor Russia is party to the founding international treaty of the ICC, the so-called Rome Statute (though both of them have signed it after its adoption in 2000), the Court’s operation needs a specific linking element, providing jurisdiction. According to the Statute, this may be the UN Security Council referring the situation to the Court, which logically requires the consent or at least the absence from the Russian Federation – but there is no doubt about the state rather using its veto. The same way it was done a few years ago, when there was the idea to create a special tribunal to examine possible responsibility for the tragedy of the MH17 flight. In general, I am not a big fan of this possibility, as You can see from more of my earlier publications, this has not proven to be an effective way during the past years.

However, it is not needed in the current situation, as Ukraine had already accepted the jurisdiction of the ICC during 2014-2015 by unilateral declarations according to the relevant provisions of the Statute. Based on these, the Office of the Prosecutor have already been conducting preliminary examinations, leading to Russia withdrawing from the ICC in 2016, meaning the withdrawal of the signarure from the treaty, instead of concluding the ratification procedure. This means that the Court has jurisdiction over any war crimes committed on the territory of Ukraine, regardless of the nationality of the perpetrator. Based on this, the Prosecutor has already stated, that he plans to initiate investigations, possibly leading to actual charges. Needless to say, I do not expect any cooperation from the Putin-led Russian government, but at least the legal base of the ICC’s operation is clear without any resolutions from the UN Security Council.

It is worthy to mention, that there was a bit of a twist in the question related to jurisdiction, which has come to me as a surprise at the beginning. In his statement, the Prosecutor has called upon the states party to the ICC to refer the situation of Ukraine to the Court according to Article 14 of the Statute – while based on Article 15, he could have initiated investigations and then press charges proprio motu (on his own right) based on Ukraine’s abovementioned earlier declarations. As a reaction, more states party have done it quickly, but I felt a bit confused – why was this needed?

Logically, by this the Prosecutor intends to circumvene the pre-trial procedure which is needed in the case of application of Article 15 – if the Prosecutor initiates investigations proprio motu, he needs a permission from the Court. Application of Article 14, referral by states party does not require this, in that case investigations can be initiated immediately. Probably the goal is to gain time, to put pressure on Russia as soon as possible. (Interestingly, one of the main arguments of the US against the ICC from the very beginning has been built around the question of limiting the powers of the Prosecutor in the case of his/her attempts of overstepping the rules. The solution to this problem was the pre-trial procedure, which now seems to be taken care of by the Prosecutor this way…)

I have serious doubts that states party may do this. Can a state party refer a situation to the Court based on Article 14, if taht state itself does not have jurisdiction over that situation? Based on the practice so far, states have only referred to the ICC situations over their own territory, which is compatible with the principle of complementarity and general provisions of international law, the do not have any legal base to do the same with territory of an other state. Even authors of professional literature have not mentioned this possibility ever before, not even in theory. I would not be surprised at all to see this question being raised later, if the Prosecutor decides to continue its work based on these Article 14 referrals.

We will be watching.

The ECHR and the Ukraine-Russia conflict

The Strasbourg-based European Court of Human Rights has decided today to employ interim measures against Russia, by the request of Ukraine. The court, being the primary human rights-related judicial organ of the Council of Europe and as such not only a leading European human rights institution, but also one on the global level, has jurisdiction over both states even during this conflict, as both of them are party to the European Convention on Human Rights. The human rights typically under special threat during conflict periods are the right to life, right to fair trial, right to property, prohibition of torture, degrading or inhuman treatment – the goal of the convention is to minimize damages to these, of course, as it is possible during times of armed conflict.

The jurisdiction of the court is not affected by the fact that recently the Council of Europe has suspended membership representation rights of Russia. First, because this does not anull any obligations deriving from membership and second, because human rights obligations of member states are not based on their membership, but on being party to the Convention. Additionaly, the recent communication from ex-president Medvedev, arguing that this suspension could give an opportunity to Russia to restore the death penalty, shall not be taken very seriously. First, as we have seen, there is no casual relationship between obligations deriving from CoE membership and from being party to the Convention. Second, we have already heard similar from Turkey after the coup attempt of 2016, and that has also proven to be a simple threat. It is good for a populist proposal, but possible problems and disadvantages coming with really restoring the death penalty would be disproportinately more than any realistic profit, which is well-known to the Russian government as well.

the court in its order adopted today has called upon Russia to refrain from any attacks on persons protected by international law, and to inform the court about every step it has made and going to make to prevent these from happening. If somebody is disappointed now, because of expecting something from the court to prohibit Russia from the whole military operation in general, then it is important to remind everyone, that the European Court of Human Rights is the guardian of the European Convention on Human Rights, with a jurisdiction to examine and identify violations of that very treaty. Questions related to agression, taking a position on the legitimacy of states’ decisions about use of force do not belong to its jurisdiction. Rightly so, if I may add. Rightly, because from the aspect of human rights violations, this question is irrelevant, as the questions of “whose” rights are violated, citizens of the agressor state, or of the citizens of the victim state – even if our sympathies logically rather go to the latter.

The current application from Ukraine has initiated a new inter-State complaint, next to which there is still the option of individual complaints (subject to the relevant provisions, e.g. the obligation of exhausting domestic remedies). It may be interesting to point out now, that during the past twelve years there have been more inter-State proceedings in front of the court, than during the nearly sixty years before that period, and all of these have somehow been related to states becoming members of the Council of Europe after the political changes of 1989-1990.

The Ukraine-Russia conflict before the ICJ

The president of Ukraine has tweeted today, that Ukraine turns to the Hague-based International Court of Justice (ICJ) against Russia, arguing it “manipulating the notion of genocide to justify aggression”. Some time later, the court has published the relevant press release, which has helped to clarify the exact claims and arguments.

Originally, based on the tweet itself, I was quite pessimistic about the application, and I thought that the court will come to the conclusion of not having the proper jurisdictional base and – after a few month – will end the case. As a consequence of this, the request of Ukraine to order provisional measures against Russia also seemed to have a weak base, as it requires jurisdiction at least “prima facie”, meaning that the court at least “at first sight”, based on a quick examination, has to take a position about the case being suitable for examination on the merits. Provisional measures, being possible in this case, mean legally binding orders from the court to specific behaviour or action to the states involved in the debate.

Why is it so? The answer is fairly simple. The current international legal order, being built on sovereignty of states, requires some form of the involved states’ consent to the proceedings leading to a legally binding judgment before the ICJ. The most clear case is, when the parties in the dispute jointly turn to the ICJ (like in the Gabcikovo-Nagymaros case between Hungary and Slovakia), but this consent may also be indirect: a so-called jurisdiction clause may be added to international treaties, based on which any state party can turn to the ICJ in the case of violation of that treaty. This is quite commonly used, and usually this is how the ICJ can get access to cases with serious tensions, when the states involved do not even talk to each other, and definitely would not go to the court hand-in-hand together. This was the base for example of more proceedings between the US and Iran, and this gave the possibility to Palestine against the US, to initiate a proceeding because of it moving its embassy into Jerusalem.

There may be hope for the proceeding to advance, if it is based on the UN Genocide Convention. The president’s tweet was vaguely referring to this option, and it is later reaffirmed by the press release. Both Ukraine and Russia is party to it, and its article IX contains a jurisdictional clause (“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”), meaning that the ICJ does not need an explicit consent from the defendant state, Russia. Still, its examination has to be narrowed to questions related to the Genocide Convention, and first, agression is not inseperable from this, second, so far genocide has only been present on the level of political propaganda, not reality. Still, some parts of the application, published by the press release indicates a very interesting argumentation line from Ukraine: it argues that the false accusations of genocide, used to provide legal grounds for recognising the breakaway regions as states and for its military invasion constitutes a violation of the convention. Smart. The court may not accept this argument in the end, but I believe it is capable of finding jurisdiction “prima facie”, proving the legal ground for provisional measures.

Still, this will not provide jurisdiction for the ICJ to examine the question of agression. In earlier proceedings, more states have tried to smuggle this question into cases on different jurisdictional base (see e.g. the case initiated by Georgia against Russia after their 2008 conflict, or the cases initiated by Armenia and Azerbaijan against each other last year, all of those being based on the jurisdiction clause included in article 22 of the UN Convention on the Elimination of All Forms of Racial Discrimination), but the court has always been reluctant to apply such an extensive interpretation, and even if it has ordered provisional measures, those have always been closely related to the given international treaty providing the jurisdiction.

At the same time, it may be worthy to add, that these cases are often not initiated by the states because they want legal results, rather to project the image of “fighting on all fronts”. Even if the governments know not to expect any results – this may be simple PR. Of course it does not neccessarily mean, that the state is not right on the merits, but it is not enough, if there is no jurisdiction of the ICJ…

The EU’s new “rule of law” regulation after the AG’s opinion and some of its Hungarian aspects

In recent days, events around the EU’s new rule of law instrument seem to have accelerated, following the publication of the Advocate General’s Opinion of the European Court in the annulment proceedings brought by the Polish and Hungarian governments. This did not, in essence, brought any surprise, the AG has found all the arguments of these governments as essentially unfounded.

These are understandably summarized in the opinion, so I would not go into them in detail here. At the same time, it is necessary to draw attention again to the fact that the new mechanism is informally called a “rule of law” procedure, in fact it is a control-sanctioning tool for the protection of the EU budget, EU public funds, as even the title of an early 2019 shorter study of mine on the subject has shown it: “Better protection of the rule of law – or of European taxpayers’ money” Linking the mechanism to EU budget was necessary for more reasons: 1) to create the link to EU competence, 2) to distance the new mechanism from Article 7 procedure, often criticized for its ineffective and political nature.

If the court reaches the same conclusion as the Advocate General (as in most cases) this means that the regulation adopted last year, which entered into force on 1 January 2021, will not be annulled by the court. As a result, all obstacles will be removed from the European Commission to take already well-visible formal steps in this procedure towards Hungary. So far, only one communication has been made public, which is obviously the first step in such a procedure anyway. When is this expected? I think the court’s verdict is expected in February at the earliest, so the proceedings will end roughly in a way that the 2022 Hungarian elections are unlikely to be affected by it. Contrary to the hopes of many, and sadly to the rampant corruption situation within the country, the campaign period will not see vast amounts of support money withdrawn by the EU yet. Obviously one of the most important strategic goals of the Orbán-led government was to avoid this anyway, that is why Viktor Orbán has threatened with the use of the veto during the 2020 negotiations of the MFF, cleverly using the immense political mistake of linking the adoption of MFF and the legislative process of the regulation creating this proceeding, initiated in 2018.

This is shown by reviewing the rules of the procedure itself. It is not particularly complicated: if the European Commission encounters a rule of law-related problem in the management of EU funds (detailed by the regulation itself), it can propose to the Council to adopt certain measures, including withholding of funds. This is one of the most significant changes from the original proposal of 2018, according to which, in essence, the Commission itself could have taken these measures (with the presumption of adoption by the Council), now it requires a separate decision.

Before making its proposal to the Council, the Commission must formally notify the Member State concerned, giving it at least one month to submit its position, additionally it also has to inform the European Parliament and the Council itself. Of course, some time already passes before this, as informal communications, collection of information etc. must take place, as the current Hungarian situation shows, requesting information and other communication is possible even before the formal notification. In the case of the Member State concerned fails to comply with the problems identified by the formal notification, the Commission may propose various measures, which it shall also communicate to the Member State concerned, allowing again at least one month to react to it. After that it sends its proposal to the Council, which has a period of one, exceptionally two months to adopt the proper decision, and if it wants to change it, it can do so by a qualified majority.

From this it is logical, that even if we optimistically expect the Court’s judgment to come in February, and that the Commission and the Council will act immediately, it will still take at least three-four months until the needed decision is adopted, which is already slipping out of the election campaign period of the 2022 elections.

The most unfortunate fact is, that if the elections bring a change in the Hungarian government, the new government will get all the trouble coming with this mechanism – well, at least You can be sure that there will be a serious political ambition to get things right with rule of law in Hungary. Based on communications of the opposition, it seems clear that they are ready to implement serious steps to handle these issues, e.g. there is seemingly a strong commitment to join the EPPO – which I am sure that the Constitutional Court (filled up with hand-picked orbanist jurists) will do its best to try to block, but this is a battle for that time…

Interview about the Hungarian political situation

I was contacted by a journalist from Brazil with a few questions related to the Orbán regime, Hungarian politics, rule of law etc. The interview is available online now in Portuguese, below You may find the full-text version of my answers to the questions asked by the author in English:


1. At this stage, Fidesz has essentially seized control over every major institution in society. The government, the electoral system, the media, the courts, and now are also in control of higher education. Could Viktor Orbán retain a degree of power over universities beyond the 2022 election? Is that the creation of a deep state?

Surely it is. Universities is just one small part of the whole picture. Viktor Orbán has gradually cemented himself and his allies into all segments of the Hungarian society and economy. Even in the case of losing the governmental position after the next year’s general elections, all of the independent constitutional institutions are packed with his allies or servient individuals. This was made possible by the unscrupulous use of the constitutional majority gained in 2010, the first action using that being the “reform” of the electoral laws, practically ensuring new constitutional majorities for him in 2014 and 2018, and the introduction of not only the new “Fundamental Law”, but additionally the very awkward solution which dictates that newly constitutional-majority-appointed individuals shall stay in their office even after their term closes as long as someone else is elected with the same majority: this practically makes it possible for pro-Orbán people to stay in office indefinitely and yes, to create a pro-Orbán deep state.

2. How do you evaluate the changes implemented by the government?

The situation is quite strange, we could even call it a bit perverted. This model for operation of universities is not a novelty, You can find many institutions with tradition and prestige being ran in this model. But there is a vast difference: those operate on this model for decades or even longer, contrary to the reformed Hungarian universities. Those get some amount of initial capital from the government, but also a collective leadership consisted of exclusively pro-Orbán individuals, to add insult to injury, in many cases of simple politicians, often with extremely high salaries, being 3 or 4 times of an ordinary professor’s renumeration.

At the same time, there is no guarantee that any badly needed changes or improvements would follow this in the system of the higher education as a whole or in the given institutions. This is practically nothing more than a privatization of these institutions to the pro-Orbán circles.

3. Criticism from the opposition hasn’t been toned down, and the parties’ alliance has recently asked the Constitutional Court to annul the law because it goes against democratic principles. In a recent interview, Viktor Orban goes back to his ideological considerations stating that ‘the reason is that the left in Hungary is an internationalist creation, while universities are national institutions. We do not want them to become globalists, losing their national character.’ How can this new university legislation affect student’s lives and the country’s development?

Well, at least the veil has fallen, and finally Viktor Orbán has stopped faking about “efficiency” of the higher education and “better possibility to build connections with the economy”, for which – according to him so far – this step was needed. I do believe that even he himself got fed up with these ridiculous fake “arguments” and finally he is happy about talking honestly about what he wishes to achieve – even if it sounds like a weak fairy tale from two hundred years ago. Universities may be “national” in some aspects, and do have an immense role in e.g. preserving national values and traditions, but even the origin of the name “university” does not support this idea.

This claim is just cheap propaganda, which is quite much to the liking of the sympathizers of Viktor Orbán and his party. For him and his government, universities serve many goals: good for creating paid positions to their servients, look for recruitment of potential new ones, spread governmental ideas and to build some pseudo-scientific justification for those. The latter is being supported by the lavish funds and targeted support.

The problem with all that, that the students do not get quality education, but in many cases, plain propaganda. I would say that recognizing that is also a useful skill, and students get quite good at that, but still, their time can be and should be used better. Additionally, they lose job opportunities, at least out of the world of the current Hungarian government-built pseudo reality, no wonder that more and more Hungarian students go to abroad

4. Last September, students at the University of Theatre and Film Arts (SZFE) protested against restricted academic freedom and occupied its campus becoming, since then, the symbol of a resistance movement that has received widespread (inter) national support. They also expressed concerns about the ideological pressure from Attila Vidnyánszky, who wants to boost education towards what he calls ‘national and Christian’ values. What is the importance of the movement, and how important is the autonomy of higher education institutions?

The movement has shown a rare example of resistance to the Government, but I am not sure that it will have a long-lasting effect. Any initiatives like that had a certain life-span but none of those could go on for long or even achieve any substantial changes.

Autonomy is theoretically very important to all higher education institutions, but unfortunately it does not have its practices and routines in Hungary with universities. Symbolic, that we still have those silly legal provisions in force that the president shall appoint the professors of universities, while the prime minister appoints professors to colleges. Why do political actors have the task of appointing scholars whose performance should be and is evaluated by anybody else but them? And what is the base of this differentiation between universities and colleges, the latter not being “good enough” for the attention of the president, “only” the prime minister? And all this, even if we talk about private institutions. I repeat, this is merely a symbolic problem, but still tells stories. Additionally, the vast majority of the income of universities have traditionally been coming from the state budget, which fact has not helped “autonomy” of universities even before the current Orbán-era starting in 2010. The change with Orbán can be described again by the magic word “unscrupulous”, which I have used in my first answer: before him, political actors have not felt the courage to openly conflict with universities, and they have tried to uphold – even if many times falsely – an image of non-intervention and respect of autonomy, especially when many of the university and academic leaders have been open supporters of the then-opposition Viktor Orbán. Now, after falling out of grace, many of them try to pose as oppositional figures against him, but that basically just adds to the tensions within the opposition.

5. Much has been said about the democratic backsliding of Hungary, this illiberal democracy of Viktor Orbán. How does this latest change in university structure fit into all this?

Logically. See the examples in answer to Q1.

6. European leaders have been anxious about how to slow down this decline for years. What could be done?

They should actually start doing something – first understanding the way how Orbán thinks would be a great step. He is not a “traditional European” leader. The magic word is again “unscrupulous”. He does not care about “European political cultural values”, he is more of a hit-and-run politician. He uses opportunities as they show up, sometimes disregarding consequences on the long run. What is very important, he dares to take risks, while he is often obviously well-informed about the games he enters. He does not care about bad reputation, what’s more, he uses that proudly by appealing to many Hungarians’ “the whole world is against us” feeling, turning it into something they feel they shall also be proud to. Traditional “European deals” do not work with him, the only possibility that European leaders can do is to try to narrow the field of maneuvering for him: connecting EU funds to certain values like rule of law is a very important first step.

7. Are you optimistic about the 2022 elections in Hungary? Do you believe in the defeat of Viktor Orbán? Why?

The current situation does not make it possible to form any prophecies, for many reasons. The parties of the political opposition may try to cooperate and form a one-on-one front against all candidates of Fidesz on the elections, they may even conduct the “oppositional primaries” for the first time, scheduled for the fall of this year, but there are still an enormous amount of work to be done, if they want to challenge Orbán and his party successfully next spring. And even if they succeed, the problem of the “deep state” mentioned in the first answer will become a serious reality…

My online presentation on demise of rule of law and problems in Hungary

You can watch my online presentation held together with Emese Pásztor and Botond Bőtös on rule of law problems in Hungary at the invitation of Mikuláš Peksa, a Czech pirate member of the European Parliament.

My presentation has covered a short overview of the process of demise of democracy and rule of law in Hungary, with special attention given to domestic and European political circumstances. I have tried to point out some of the most relevant events, factors, logics the understanding of which makes You closer to understand what happens in this country.

My presentation at the conference of MRU on 70 years of the ECHR

Yesterday I had the opportunity to participate in an international conference organised by the Mykolas Romeris University (MRU) of Lithuania. As a result of the coronavirus pandemic, the conference was organised online, and it has covered various aspects related to the 70 years anniversary of the existence of the European Convention on Human Rights, and the jurisprudence of the Strasbourg-based European Court of Human Rights.

My presentation, titled “Is the ECHR a proper tool for historic sins?”, has examined the problem of the court entertaining cases like the Kononov case and current ongoing cases, based on the application of the Benes decrees against individuals of Hungarian and German origin by Slovakia (also referring to the recent new inter-state case against the Czech Republic by Liechtenstein, and tries to give an answer to this question.

The whole video recording of the conference is available on YouTube, my presentation starts at 1:35, but it is well worth to check the other presentations as well: