On 12 August 2008 the Government of Georgia brought an application before the International Court of Justice (“ICJ”) against the Russian Federation for alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”). It based the Court's jurisdiction on Article 22 of CERD, which provides that:
Any dispute between two or more State 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 application concerned two regions within Georgia, South Ossetia and Abkhazia, which have active separatist movements, and areas of Georgia adjacent to those two regions. In both South Ossetia and Abkhazia attempts to secede in the early 1990s had been followed by conflicts which ceased upon settlement agreements signed by Georgia, the relevant separatist forces and the Russian Federation. Those agreements provided inter alia for a joint peacekeeping force consisting of Georgian, Russian and separatist forces to be deployed in the relevant region. Georgia alleged that Russia had supported the separatist authorities in the implementation of discriminatory policies against ethnic Georgian populations in these two regions and had prevented the return of forcibly displaced ethnic Georgian citizens. It claimed that Russia, through its state organs, state agents, other persons and entities exercising governmental authority, and through the separatist forces, acting on the instructions of and under the direction and control of Russia, was responsible for serious violations of its fundamental obligations under CERD.
On 14 August 2008 Georgia submitted a request for the indication of provisional measures. On 25 August, referring to “the rapidly changing circumstances in Abkhazia and South Ossetia”, Georgia submitted an amended request for the indication of provisional measures in which it claimed that Russia had assumed control over South Ossetia and Abkhazia. The amended request sought provisional measures in respect of the rights of Georgian citizens under Articles 2 and 5 of CERD to remain or to return to their homes in the relevant regions.
By a majority of eight votes to seven the Court indicated provisional measures in its order of 15 October 2008 (Case Concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Request for Provisional Measures) which emphasised the obligations of both parties under CERD in South Ossetia and Abkhazia and in adjacent areas in Georgia. The Court ordered both parties to facilitate humanitarian assistance in support of the rights of the local population under CERD. Additionally the Court required each party to inform the Court as to its compliance with the provisional measures.
The Court first considered whether the provisions of CERD invoked by the applicant appeared, prima facie, to afford a basis on which the jurisdiction of the Court might be founded. The Court held that Articles 2 and 5 of CERD appeared to apply to the actions of a state party extra-territorially, in the absence of either a general restriction in CERD or a specific limitation in Articles 2 and 5. The Court held further that a dispute appeared to exist between the parties as to the interpretation or application of CERD, namely a disagreement as to the applicability of Articles 2 and 5 in the context of events in South Ossetia and Abkhazia. Finally, the Court held that Article 22 did not, on its plain meaning, require formal negotiations in the framework of the Convention or recourse to the procedures of the Convention as preconditions to the jurisdiction of the Court. Article 22 suggested that some attempt should have been made to initiate discussions on issues that would fall under CERD, and in circumstances where those issues had been raised in bilateral negotiations, the Court concluded that it had prima facie jurisdiction under Article 22 of CERD.
The Court then considered whether the remaining conditions for the indication of provisional measures were met in the circumstances. As to the relation between the provisional measures sought and the claim on the merits, the Court held that there was a sufficient connection between the requested provisional measures and the merits of the case. Further, the Court held that the rights in question in the proceedings, particularly the right to security of persons, the right to protection by the state against violence or bodily harm (Article 5(b)) and the right to freedom of movement and residence (Article 5(d)(i)), were of such a character that prejudice to them could be irreparable. In circumstances where the ethnic Georgian, Ossetian and Abkhazian populations in the areas affected by the ongoing conflict remained vulnerable, the Court was satisfied that the indication of measures was required, and considered it appropriate to indicate measures addressed to both parties.
The dissenting judges appended a joint dissenting opinion to the Court's order. The dissenting judges considered that Article 22 required that a dispute concerning the interpretation or application of CERD must exist prior to the seisin of the Court and that a condition of prior negotiation contained in Article 22 had not been fulfilled in circumstances where the substance of CERD was never debated between the parties before the filing of a claim before the Court. Further, the dissenting judges considered that there was no relevant risk of irreparable harm and no urgency since a ceasefire agreement had been concluded.
On 12 August 2008 a ceasefire deal was brokered by the EU. Georgia sought to include in the text allowance for the return of refugees but Russia rejected the amendment. In November 2008 Human Rights Watch reported that militias had burned over 20,000 homes of ethnic Georgians in South Ossetia, essentially preventing persons displaced by the conflict from returning, and that militias were continuing violent attacks against ethnic Georgians in the region. In the complex circumstances it is difficult to assess the impact, if any, of the Court's provisional measures order in protecting individuals against racial discrimination: this impact might become clear once the parties inform the Court of the measures they have taken in compliance with the order. But it is also possible that the proceedings themselves contributed to the broader political resolution of the conflict. Whether the Court and its processes play a meaningful role in ongoing armed conflict might only be accurately judged with the passage of time. The extent to which that contribution might be effected through politics rather than law also remains to be seen.
