- 30 67. The Russian Federation is of the view that it is not sufficient for the Parties simply to
enter into negotiations; these must be meaningful and pursued “as far as possible”. The Respondent
argues that “mere protests and disputations” are not sufficient to fulfil the precondition relating to
negotiation. It maintains that Ukraine did not attempt to negotiate in good faith. The
Russian Federation considers that Ukraine only engaged in negotiations “with a view to bring this
dispute before this Court” and not with the objective of settling the matters in contention between
the Parties. It states that during the negotiations Ukraine did not take into account the
Russian Federation’s interests. According to the Respondent, Ukraine also did not contemplate any
modification to its position and refused to substantiate some of its allegations, notwithstanding
requests to do so made by the Russian Federation. The Respondent points out that negotiations took
place in Minsk at its suggestion and that it showed its willingness “to contemplate modifications of
its own position”. Furthermore, the Russian Federation contends that, in its Notes Verbales, the
Applicant mainly did not address the ICSFT, but rather raised allegations of acts of aggression and
of intervention in the internal affairs of Ukraine.
*
68. Ukraine points out that the Parties negotiated extensively for two years, even though the
dispute ultimately could not be resolved by negotiations. It mentions that it sent more than twenty
Notes Verbales to the Russian Federation and that the Parties met in four rounds of in-person
negotiations. Ukraine maintains that it has genuinely attempted to negotiate with the
Russian Federation and to discuss in good faith all the issues separating them under the ICSFT.
Ukraine specifies that the negotiations did not concern acts of aggression and intervention. In the
Applicant’s opinion, there was no genuine attempt by the Russian Federation to settle the dispute as
it did not meaningfully engage with the claims raised by Ukraine and refused to take account of the
latter’s positions. The Applicant is of the view that, when negotiations have been conducted “as far
as possible with a view to settling the dispute” but have failed, become futile or reached a
deadlock, the precondition of holding negotiations is fulfilled. Ukraine submits that Article 24,
paragraph 1, of the ICSFT only requires negotiations to be conducted for a “reasonable time” and
not to the point of futility. Ukraine contends that it would not have been reasonable to require
further negotiations between the Parties for an extended period of time.
*
*
69. The Court considers that Article 24, paragraph 1, of the ICSFT requires, as a first
procedural precondition to the Court’s jurisdiction, that a State makes a genuine attempt to settle
through negotiation the dispute in question with the other State concerned. According to the same
provision, the precondition of negotiation is met when the dispute “cannot be settled through
negotiation within a reasonable time”. As was observed in the case concerning the Application of
the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), “the subject-matter of the negotiations must relate to the subject-matter of the
dispute which, in turn, must concern the substantive obligations contained in the treaty in question”
(Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 133, para. 161).