Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation)
Yesterday, 15 October, the International Court of Justice read during a public sitting its judgment on the request of Georgia to indicate provisional measures with regard to the situation in South-Ossetia. Due to the narrow vote it is interesting to note the composition of the Court. The Venezuelan Judge, Gonzalo Parra-Aranguren, did not take part in these proceedings. Georgia was represented by Judge ad hoc Gaia. As is the case with the permanent members of the Security Council, Russia has a Judge at the Bench, namely Judge Skotnikov.
Rarely has the Court been so divided in a case. By eight votes to seven the Court indicated that:
Both Parties, within South Ossetia and Abkhazia and adjacent areas in Georgia, shall
(1) refrain from any act of racial discrimination against persons, groups of persons or institutions;
(2) abstain from sponsoring, defending or supporting racial discrimination by any persons or organizations,
(3) do all in their power, whenever and wherever possible, 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;
(4) 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;
Both Parties shall facilitate, and refrain from placing any impediment to, humanitarian assistance in support of the rights to which the local population are entitled under the International Convention on the Elimination of All Forms of Racial Discrimination;
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;
Each Party shall inform the Court as to its compliance with the above provisional measures.
The seven judges that voted against the indication of provisional measures, namely Vice-President Al-Khasawneh and Judges Ranjeva, Shi, Koroma, Tomka, Bennouna and Skotnikov differed from the Court on the following issues:
(1) whether there is a dispute between them “with respect to the interpretation or application of this Convention”;
(2) whether the precondition that the dispute “is not settled by negotiation or the procedures expressly provided for in this Convention” has been met in the present case.
They stated that the very substance of CERD was never debated between the Parties before the filing of a claim before the Court (Joint Dissenting Opinion, par. 12). Thus, in their view, it was understandable why a State party to CERD, in this case Russia, finds it unacceptable for an action to be brought against it before the Court without having been first advised of Georgia’s grievances with regard to this Convention (Joint Dissenting Opinion, par. 16).
With regard to the second point, namely that the dispute has not been settled by “the procedures expressly provided for in this Convention” the dissenting judges pointed out to the procedure for urgency and rapid alert established by the Committee for the Elimination of Racial Discrimination in 1993, which was not made use of by Georgia (Joint Dissenting Opinion, par.18).
Further, the two other conditions to be fulfilled for the Court to be able to indicate provisional measures the existence of a risk of irreparable harm to the rights in dispute and urgency were not meet (Joint Dissenting Opinion, pars. 20-22)
Lastly, the dissenting judges noted that even though in agreement with the obvious conclusion on the part of the Court to indicate provisional measures aimed at both Parties to the proceedings, they thought that the Order of the Court was not well founded in law (Joint Dissenting Opinion, pars. 24-25).
In view of the broad formulation of Article 22, bestowing jurisdiction upon the ICJ, unlike other compromissory clauses contained in other international human rights treaties, the interpretation of the majority seems to be the correct one. Further, it is important that the Court observed that there is no restriction of a general nature in CERD relating to its territorial application. Further, the Court noted that, in particular, neither Article 2 nor Article 5 of CERD contained a specific territorial limitation. Thus, the Court found that these provisions of CERD generally appear to apply, like other provisions of instruments of that nature, to the actions of a State party when it acts beyond its territory. (Judgment, par. 109).
The narrow vote does not bode well for the further proceedings in this case, since a number of judges seem to entertain serious doubts about the jurisdiction of the Court. As the Court itself pointed out, the decision given on the Request for the indication of provisional measures in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves.
Needless to say that for the reasons listed above in this short commentary the case remains still highly interesting!
(The Judgment by the Court can be read in its entirety at: http://www.icj-cij.org/docket/files/140/14801.pdf
The Joint Dissenting Opinion can be read at: http://www.icj-cij.org/docket/files/140/14805.pdf
A summary is available at: http://www.icj-cij.org/docket/files/140/14809.pdf )