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

Abstract

Four days later aftermath of the armed conflict that broke out between the Parties in the Georgian territories of South Ossetia and Abkhazia (on August 8, 2008), on August 12, 2008 the Republic of Georgia instituted proceedings before the International Court of Justice (hereinafter - 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)” [1].
 Georgia alleged that Russia “practised, sponsored and supported racial discrimination through attacks against, and mass-expulsion of, ethnic Georgians” in the two territories in violation of Russia’s obligations under the CERD. 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 also indicated that “each 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” [2].
 Although the Court has concluded, by ten votes to six, that it has no jurisdiction under CERD to give a judgment on the merits, the dispute nevertheless retains historical significance as the first dispute involving Russian Federation that has come before the International Court of Justice. It was also the first time that the International Court of Justice was directly called upon to interpret the provisions of CERD.
 They were not prepared to address the key issue that the centrality of this dispute had very little to do with racial discrimination. It was an incidental question in the context of a dispute that was overwhelmingly about the use of force. The International Court does not have jurisdiction over the use of force questions, and that finding should have disposed of the dispute once and for all. It was clear in this case that the possibility of a judgment on the merits was unlikely and that the International Court was, at best, being used as a convenient platform for the public articulation of a political grievance, or to draw international attention to Georgia’s plight, without any intention of engaging the judicial function in the actual settlement of the dispute.
 The Georgia v Russian Federation case, as formulated before the Court, it is suggested, fell precisely in the category of disputes that the Court should have struck out summarily as an abuse of process. This argument is strengthened by the fact that Georgia had brought proceedings broadly on the same subject matter before the European Court of Human Rights, arguably a more suitable forum for the adjudication of human rights than the ICJ.