Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation)
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Overview of the case
On 12 August 2008, the Republic of Georgia instituted proceedings before the Court against the Russian Federation relating to “its actions on and around the territory of Georgia in breach of CERD [the 1965 International Convention on the Elimination of All Forms of Racial Discrimination]”. Georgia claimed that
“the Russian Federation, through its State organs, State agents, and other persons and entities exercising governmental authority, and through the South Ossetian and Abkhaz separatist forces and other agents acting on the instructions of, and under the direction and control of the Russian Federation, is responsible for serious violations of its fundamental obligations under CERD, including Articles 2, 3, 4, 5 and 6”.
According to Georgia, the Russian Federation “has violated its obligations under CERD during three distinct phases of its interventions in South Ossetia and Abkhazia”, in the period from 1990 to August 2008. Georgia requested the Court to order “the Russian Federation to take all steps necessary to comply with its obligations under CERD”. As a basis for the jurisdiction of the Court, Georgia relied on Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination.
Georgia’s Application was accompanied by a request for the indication of provisional measures in order “to preserve [its] rights under CERD to protect its citizens against violent discriminatory acts by Russian armed forces, acting in concert with separatist militia and foreign mercenaries”.
On 15 August 2008, having considered the gravity of the situation, the President of the Court, acting under Article 74, paragraph 4, of the Rules of Court, urgently called upon the Parties “to act in such a way as will enable any order the Court may take on the request for provisional measures to have its appropriate effects”.
Following public hearings that were held from 8 to 10 October 2008, the Court issued an Order on the request for the indication of provisional measures submitted by Georgia. The Court found that it had prima facie jurisdiction under Article 22 of CERD to deal with the case and could accordingly address the request for the indication of provisional measures. The Court ordered the Parties,
“within South Ossetia and Abkhazia and adjacent areas in Georgia, [to] refrain from any act of racial discrimination against persons, groups of persons or institutions ; [to] abstain from sponsoring, defending or supporting racial discrimination by any persons or organizations ; [to] do all in their power . . . to ensure, without distinction as to national or ethnic origin, (i) security of persons ; (ii) the right of persons to freedom of movement and residence within the border of the State ; (iii) the protection of the property of displaced persons and of refugees . . . [and to] do all in their power to ensure that public authorities and public institutions under their control or influence do not engage in acts of racial discrimination against persons, groups of persons or institutions”.
The Court also indicated that “[e]ach Party shall refrain from any action which might prejudice the rights of the other Party in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before the Court or make it more difficult to resolve”. Finally, the Court ordered each Party to “inform [it] as to its compliance with the . . . provisional measures”.
By an Order of 2 December 2008, the President fixed 2 September 2009 as the time-limit for the filing of a Memorial by Georgia and 2 July 2010 as the time-limit for the filing of a Counter-Memorial by the Russian Federation. On 1 December 2009, the Russian Federation filed four preliminary objections in respect of jurisdiction. By an Order of 11 December 2009, the Court fixed 1 April 2010 as the time-limit for the filing by Georgia of a written statement containing its observations and submissions on the preliminary objections raised by the Russian Federation.
In its Judgment of 1 April 2011, the Court began by considering the Russian Federation’s first preliminary objection, according to which there had been no dispute between the Parties regarding the interpretation or application of CERD at the date Georgia filed its Application. It concluded that none of the documents or statements provided any basis for a finding that there had been a dispute about racial discrimination by July 1999. It followed from the general finding of the Court and the specific findings made with regard to each document and statement that Georgia had not, in the Court’s opinion, cited any document or statement made before it became party to CERD in July 1999 ; which provided support for its contention that “the dispute with Russia over ethnic cleansing is long-standing and legitimate and not of recent invention”. The Court added that even if that had been the case, such dispute, though about racial discrimination, could not have been a dispute with respect to the interpretation or application of CERD, the only kind of dispute in respect of which the Court is given jurisdiction by Article 22 of that Convention. However, the Court concluded that the exchanges between the Georgian and Russian representatives in the Security Council on 10 August 2008, the claims made by the Georgian President on 9 and 11 August and the response on 12 August by the Russian Foreign Minister established that by that day, the day on which Georgia submitted its Application, there had been a dispute between Georgia and the Russian Federation about the latter’s compliance with its obligations under CERD as invoked by Georgia in the case. The first preliminary objection of the Russian Federation was accordingly dismissed.
In its second preliminary objection, the Russian Federation had argued that the procedural requirements of Article 22 of CERD for recourse to the Court had not been fulfilled. According to this provision,
“[a]ny dispute between two or more States parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement”.
First of all, the Court noted that Georgia did not claim that, prior to seising the Court, it had used or attempted to use the procedures expressly provided for in CERD. The Court therefore limited its examination to the question of whether the precondition of negotiations had been fulfilled.
In determining what constitutes negotiations, the Court observed that negotiations are distinct from mere protests or disputations. Negotiations entail more than the plain opposition of legal views or interests between two parties, or the existence of a series of accusations and rebuttals, or even the exchange of claims and directly opposed counter-claims. As such, the concept of “negotiations” differs from the concept of “dispute”, and requires — at the very least — a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute. The Court further noted that evidence of such an attempt to negotiate — or of the conduct of negotiations — does not require the reaching of an actual agreement between the disputing parties.
Accordingly, the Court assessed whether Georgia had genuinely attempted to engage in negotiations with the Russian Federation, with a view to resolving their dispute concerning the Russian Federation’s compliance with its substantive obligations under CERD. The Court noted that, were it to find that Georgia had genuinely attempted to engage in such negotiations with the Russian Federation, it would subsequently examine whether Georgia had pursued those negotiations as far as possible with a view to settling the dispute. To make that determination, the Court said that it needed to ascertain whether the negotiations had failed, become futile, or reached a deadlock before Georgia submitted its claim to the Court. After considering the Parties’ arguments on the question, the Court recalled its conclusions regarding the Russian Federation’s first preliminary objection, as it was directly connected to the Russian Federation’s second preliminary objection. The Court observed that negotiations had taken place between Georgia and the Russian Federation before the start of the relevant dispute. Those negotiations had involved several matters of importance to the relationship between Georgia and the Russian Federation, namely, the status of South Ossetia and Abkhazia, the territorial integrity of Georgia, the threat or use of force, the alleged breaches of international humanitarian law and of human rights law by Abkhaz or South Ossetian authorities and the role of the Russian Federation’s peacekeepers. However, in the absence of a dispute relating to matters falling under CERD prior to 9 August 2008, those negotiations could not be said to have covered such matters, and were thus of no relevance to the Court’s examination of the Russian Federation’s second preliminary objection. The Court accordingly concluded that neither requirement contained in Article 22 had been satisfied. Article 22 of CERD thus could not serve to found the Court’s jurisdiction in the case. The second preliminary objection of the Russian Federation was therefore upheld.
Having upheld the second preliminary objection of the Russian Federation, the Court found that it was required neither to consider nor to rule on the other objections to its jurisdiction raised by the Respondent and that the case could not proceed to the merits phase. Accordingly, the Order of 15 October 2008 indicating provisional measures ceased to be operative upon the delivery of the Judgment of the Court.
This overview is provided for information only and in no way involves the responsibility of the Court.