On 1 April 2011, the International Court of Justice (the “ICJ”) decided it had no jurisdiction to hear an application by Georgia concerning Russia's international responsibility for “actions on and around the territory of Georgia” in breach of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (the “CERD”).
By ten votes to six, the Court upheld an objection by Russia that Georgia had failed to satisfy the procedural precondition contained in Article 22 of the CERD to attempt to settle the dispute before bringing a claim, and the Court therefore concluded that it had no jurisdiction.
On 12 August 2008, shortly before the ceasefire was reached in the Russia-Georgia conflict of August 2008, Georgia instituted proceedings before the ICJ against Russia concerning "actions on and around the territory of Georgia", which Georgia claimed were in breach of the CERD.
Georgia claimed that Russia, through its State organs as well as through South Ossetian and Abkhaz separatist forces and other agents, had violated its obligations under CERD by practising, sponsoring and supporting "racial discrimination through attacks against, and mass expulsion of, ethnic Georgians, as well as other ethnic groups, in the South Ossetia and Abkhazia regions of the Republic of Georgia".
On 14 August 2008, Georgia filed a request with the ICJ for 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".
By an Order of 15 October 2008, the Court considered that, prima facie, it had jurisdiction under Article 22 of CERD to deal with the case to the extent that the subject-matter of the dispute related to the "interpretation or application" of the CERD, and indicated provisional measures. Both parties, within South Ossetia and Abkhazia and adjacent areas in Georgia, were required, among other things, to refrain from any act of racial discrimination, and 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; and (iii) the protection of the property of displaced persons and of refugees.
The ICJ's Judgment on Jurisdiction
In its judgment of 1 April 2011, following Russian preliminary objections to the Court's jurisdiction, the ICJ decided that it had no jurisdiction to hear the merits of the case, effectively reversing the prima facie position it had taken on this question at the provisional measures stage.
Georgia had submitted that the jurisdiction of the Court was founded on Article 22 of CERD, a treaty to which both the Russian Federation and Georgia are party. Article 22 of CERD reads as follows:
"Any 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"
The ICJ first considered Russia's objection that “there was no dispute between Georgia and Russia with respect to the interpretation or application of CERD concerning the situation in and around Abkhazia and South Ossetia prior to 12 August 2008, i.e. the date Georgia submitted its application”. This objection was rejected by the Court. Upon examination of official documents and statements, the ICJ considered that some exchanges between Russia and Georgia in August 2008, although referring primarily to allegedly unlawful use of force, expressly mentioned alleged ethnic cleansing by Russian forces. This was sufficient to establish the existence of a dispute between the two parties regarding the Russian Federation’s compliance with its obligations under CERD.
The second objection, however, was upheld by the Court by ten votes to six. The essence of this objection was that Article 22 of CERD contains a procedural precondition, namely an obligation to seek to settle the dispute by negotiation or other procedures expressly provided for in CERD. Russia claimed that this had to be satisfied before recourse to the ICJ was permissible.
In reaching its decision, the Court interpreted the meaning of Article 22 with reference to the ordinary meaning of the words, previous ICJ case law, different language versions as well as to the travaux préparatoires. It considered in particular that the express reference to negotiation in Article 22 should be given some effect and observed that the express choice of two modes of dispute settlement (negotiations or resort to the special procedures under CERD) suggested an affirmative duty to resort to them prior to seeking recourse to the Court. The Court concluded that negotiation constituted a precondition to the seisin of the Court and held that neither of the modes had been attempted by Georgia and therefore that the precondition contained in Article 22 had not been satisfied.
Having upheld the second preliminary objection, the Court found it unnecessary to consider or to rule on other objections raised by the Russian Federation. Instead, the Court declined jurisdiction and concluded by reminding the parties of their duty to comply with their obligations under CERD.
In this judgment, the Court adopted a restrictive interpretation of Article 22 of CERD, setting a high procedural bar that parties must meet before they may successfully refer disputes to Court. This conclusion was strongly criticised by the President of the Court, Judge Owada, and by Judges Simma, Abraham, Donoghue and Judge ad hoc Gaja in a Joint Dissenting Opinion. They disagreed with the majority's "surprisingly narrow" approach when considering whether Article 22 should be regarded as a precondition to the seisin of the Court. They also considered that the Court "has substituted a formalistic approach for the realistic, substantive approach that it has consistently taken in the past" when considering whether this precondition was fulfilled. They stressed that the Court's purpose should not be to "erect needless and over-exacting procedural obligations liable to delay or impede the applicant's access to justice". To require negotiations in the circumstances of this case, where it was unrealistic to believe that there was the "slightest chance" of a negotiated settlement "[flew] in the face of the obvious". It remains to be seen whether the Court will adopt a similar approach in future cases.