Case Concerning Application Of The International Convention On The Elimination Of All Forms Of Racial Discrimination (Georgia v. Russian Federation) Preliminary Objections

The Government of Georgia filed in the Registry of the Court an Application instituting proceedings against the Russian Federation in respect of a dispute concerning “actions on and around the territory of Georgia” in breach of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) of 21 December 1965.

 In its Application, Georgia, referring to Article 36, paragraph 1, of the Statute, relied on Article 22 of CERD to found the jurisdiction of the Court and also reserved the right to invoke Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 as an additional basis for jurisdiction.

Georgia, referring to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of Court, filed in the Registry of the Court 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”.

Georgia, referring to the rapidly changing circumstances in Abkhazia and South Ossetia, filed in the Registry an “Amended Request for the Indication of Provisional Measures of Protection”.

By an Order of 15 October 2008, the Court, after hearing the Parties, indicated certain provisional measures to both Parties. The Court also directed each Party to inform it about compliance with the provisional measures.

In the Application, the following requests were made by Georgia:

“The Republic of Georgia, on it own behalf and as parens patriae for its citizens, respectfully requests the Court to adjudge and declare 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 or under the direction and control of the Russian Federation, has violated its obligations under CERD by:

(a) engaging in acts and practices of ‘racial discrimination against persons, groups of persons or institutions’ and failing ‘to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation’ contrary to Article 2 (l) (a) of CERD;

(b) ‘sponsoring, defending and supporting racial discrimination’ contrary to Article 2 (l) (b) of CERD;

(c) failing to ‘prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination’ contrary to Article 2 (l) (d) of CERD;

(d) failing to condemn ‘racial segregation’ and failing to ‘eradicate all practices of this nature’ in South Ossetia and Abkhazia, contrary to Article 3 of CERD;

(e) failing to ‘condemn all propaganda and all organizations . . . which attempt to justify or promote racial hatred and discrimination in any form’ and failing ‘to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination’, contrary to Article 4 of CERD;

(f) undermining the enjoyment of the enumerated fundamental human rights in Article 5 by the ethnic Georgian, Greek and Jewish populations in South Ossetia and Abkhazia, contrary to Article 5 of CERD;

(g) failing to provide ‘effective protection and remedies’ against acts of racial discrimination, contrary to Article 6 of CERD.

The Republic of Georgia, on it own behalf and as parens patriae for its citizens,  requested the Court to order the Russian Federation to take all steps necessary to comply with its obligations under CERD, including:

(a) immediately ceasing all military activities on the territory of the Republic of Georgia, including South Ossetia and Abkhazia, and immediate withdrawing of all Russian military personnel from the same;

(b) taking all necessary and appropriate measures to ensure the prompt and effective return of IDPs to South Ossetia and Abkhazia in conditions of safety and security;

(c) refraining from the unlawful appropriation of homes and property belonging to IDPs;

(d) taking all necessary measures to ensure that the remaining ethnic Georgian populations of South Ossetia and the Gali District are not subject to discriminatory treatment including but not limited to protecting them against pressures to assume Russian citizenship, and respect for their right to receive education in their mother tongue;

(e) paying full compensation for its role in supporting and failing to bring to an end the consequences of the ethnic cleansing that occurred in the 1991-1994 conflicts, and its subsequent refusal to allow the return of IDPs;

(f) not to recognize in any manner whatsoever the de facto South Ossetian and Abkhaz separatist authorities and the fait accompli created by ethnic cleansing;

(g) not to take any measures that would discriminate against persons, whether legal or natural, having Georgian nationality or ethnicity within its jurisdiction or control;

(h) allow Georgia to fulfil its obligations under CERD by withdrawing its forces from South Ossetia and Abkhazia and allowing Georgia to restore its authority and jurisdiction over those regions; and – 11 –

(i) to pay full compensation to Georgia for all injuries resulting from its internationally wrongful acts.”

The Russian Federation raised four preliminary objections to the Court’s jurisdiction under Article 22 of CERD. According to the first preliminary objection put forward by the Russian Federation, there was no dispute between the Parties regarding the interpretation or application of CERD at the date Georgia filed its Application. In its second preliminary objection, the Russian Federation argued that the procedural requirements of Article 22 of CERD for recourse to the Court have not been fulfilled. The Russian Federation contended in its third objection that the alleged wrongful conduct took place outside its territory and therefore the Court lack jurisdiction ratione loci to entertain the case. During the oral proceedings, the Russian Federation stated that this objection did not possess an exclusively preliminary character. Finally, according to the Russian Federation’s fourth objection, any jurisdiction the Court might have was limited ratione temporis to the events which occurred after the entry into force of CERD as between the Parties, that is, 2 July 1999.

The Russian Federation’s first preliminary objection was 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”. In brief, it presented two arguments in support of that objection. First, if there was any dispute involving any allegations of racial discrimination committed in the territory of Abkhazia and South Ossetia, the parties to that dispute were Georgia on the one side and Abkhazia and South Ossetia on the other, but not the Russian Federation. Secondly, even if there was a dispute between Georgia and the Russian Federation, any such dispute was not one related to the application or interpretation of CERD.

The Court did not consider that the words “matter”, “complaint”, “dispute” and “issue” used in Articles 11 to 16 in such a systematic way that require that a narrower interpretation than usual be given to the word “dispute” in Article 22. Further, the word “dispute” appear in the first part of Article 22 in exactly the same way as it appear in several other compromissory clauses adopted around the time CERD was being prepared: “Any dispute between two or more States Parties with respect to the interpretation or application of this Convention.” (e.g., Optional Protocol of Signature to the Conventions on the Law of the Sea of 1958 concerning the Compulsory Settlement of Disputes, Article 1; Single Convention on Narcotic Drugs of 1961, Article 48; Convention on the Settlement of Investment Disputes between States and Nationals of other States of 1965, Article 64). That consistency of usage suggested that there was no reason to depart from the generally understood meaning of “dispute” in the compromissory clause contained in Article 22 of CERD. Accordingly, the Court rejected the contention of the Russian Federation and turned to the general meaning of the word “dispute” when used in relation to the jurisdiction of the Court.

The Court recalled its established case law on that matter, beginning with the frequently quoted statement by the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case in 1924: “A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” The Court observed that whether there was a dispute in a given case was a matter for “objective determination” by the Court (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion). “It must be shown that the claim of one party is positively opposed by the other” (South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) (and most recently Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda)). The Court’s determination must turn on an examination of the facts. As the Court had recognized (for example, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria)), the existence of a dispute may be inferred from the failure of a State to respond to a claim in circumstances where a response is called for.

The Court further held that dispute must in principle exist at the time the Application was submitted to the Court (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom)(Libyan Arab Jamahiriya v. United States of America)). Further, in terms of the subject-matter of the dispute, to return to the terms of Article 22 of CERD, the dispute must be “with respect to the interpretation or application of the Convention”. The Court after review of the documents and statements issued by the Parties and others between 1999 and July 2008 concluded that no legal dispute arose between Georgia and the Russian Federation during that period with respect to the Russian Federation’s compliance with its obligations under CERD.

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 establish that by that day, the day on which Georgia submitted its Application, there was a dispute between Georgia and the Russian Federation about the latter’s compliance with its obligations under CERD as invoked by Georgia in this case. The first preliminary objection of the Russian Federation was accordingly dismissed.

The essence of second objection was that Article 22 of CERD, the sole jurisdictional basis invoked by Georgia to found the Court’s jurisdiction, contained two procedural preconditions, namely, negotiations and referral to procedures expressly provided for in CERD that must both be fulfilled before recourse to the Court is had. The Russian Federation contended that, in the present instance, neither precondition was met.

Whether Article 22 of CERD establish procedural conditions for the seisin of the Court?

The Court concluded that in their ordinary meaning, the terms of Article 22 of CERD, established preconditions to be fulfilled before the seisin of the Court. The Court assessed whether Georgia 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 was unable to agree with Georgia’s submission when it claimed that “Russia’s refusal to negotiate with Georgia in the midst of its ethnic cleansing campaign, and two days prior to the filing of the Application is sufficient to vest the Court with jurisdiction under Article 22”. The Court concluded that the facts in the record show that, between 9 August and 12 August 2008, Georgia did not attempt to negotiate CERD-related matters with the Russian Federation, and that, consequently, Georgia and the Russian Federation did not engage in negotiations with respect to the latter’s compliance with its substantive obligations under CERD.

The Court observed the fact that Georgia did not claim that, prior to the seisin of the Court, it used or attempted to use the other mode of dispute resolution contained at Article 22, namely the procedures expressly provided for in CERD. Considering the Court’s conclusion that under Article 22 of CERD, negotiations and the procedures expressly provided for in CERD constitute preconditions to the exercise of its jurisdiction, and considering the factual finding that neither of these two modes of dispute settlement was attempted by Georgia, the Court did not need to examine whether the two preconditions were cumulative or alternative.

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. Having thus upheld the second preliminary objection of the Russian Federation, the Court did not consider the other objections to its jurisdiction raised by the Respondent.

The Court thus,

• by twelve votes to four,

Rejected the first preliminary objection raised by the Russian Federation;

• by ten votes to six,

Upheld the second preliminary objection raised by the Russian Federation;

• by ten votes to six,

Held that it had no jurisdiction to entertain the Application filed by Georgia on 12 August 2008.