Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation, 2008)

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".

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 it 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".

On 1 December 2009, the Russian Federation filed four preliminary objections in respect of jurisdiction.

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. 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.

The Court observed that negotiations had taken place between Georgia and the Russian Federation before the start of the relevant dispute. 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.

Institution of Proceedings

 * Application Instituting Proceedings, 12 August 2008

Written Proceedings

 * Memorial of Georgia, 2 September 2008


 * Preliminary Objections of the Russian Federation, 1 December 2009

Judgments

 * Judgment of 1 April 2011