ON 12 August 2008 Georgia filed an application before the International Court of Justice against Russia alleging violations of the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”). Georgia alleged that Russia was responsible for serious violations of its fundamental obligations under CERD in two regions of Georgia: South Ossetia and Abkhazia.
In the proceedings, Georgia invoked Article 22 of CERD as the basis of the Court's jurisdiction, which provides that any “dispute” with respect to the interpretation or application of CERD “which is not settled by negotiation or by the procedures expressly provided for” in CERD, shall be referred to the ICJ.
The case raised questions about preconditions for invoking the jurisdiction of the ICJ: in particular, what is required for a “dispute” to exist; and whether an applicant was required to have resort to CERD procedures, or to negotiate on CERD issues, prior to filing an application. These questions were addressed in the Court's decision on preliminary objections: Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), ICJ, Preliminary Objections, Judgment, 1 April 2011.
It is relevant to recall the Court's decision on provisional measures, given in October 2008. By the slimmest of majorities (eight votes to seven), the Court concluded that Article 22 of CERD established, prima facie, a basis of jurisdiction. It held that Article 22 did not require formal negotiations in the framework of CERD or prior recourse to the procedures of the Convention; rather it only required that some attempt had been made to initiate discussions on the relevant issues. The Court held that the fact that those issues had been raised in bilateral negotiations was sufficient for a finding of prima facie jurisdiction.
The case continued and Russia made preliminary objections. Two of those objections were examined by the Court in its decision on preliminary objections. These were:
(1) there was no dispute between the parties within the meaning of Article 22 at the date Georgia filed its application; and
(2) the requirements for recourse to the Court under Article 22 ((a) resort to CERD procedures and (b) negotiation) were not satisfied.
By a majority of 12 votes to four, the Court rejected the first preliminary objection. By 10 votes to six, it upheld the second objection, concluding that it had no jurisdiction.
In respect of the question whether there was a “dispute” between the parties, the majority considered that Georgia had alleged, during the period of 9 to 12 August 2008, that Russian forces had carried out ethnic cleansing. Russia had rejected that allegation. The majority therefore concluded that by 12 August, when Georgia commenced proceedings, there was a dispute between Georgia and Russia about Russia's compliance with its obligations under CERD. However, it considered that this dispute had only arisen on 9 August, three days prior to the filing of Georgia's application. This finding had a profound impact on the decision of the Court on the second preliminary objection, discussed below.
On the requirement of a “dispute”, five of the judges, in a joint dissenting opinion expressed disagreement with the majority. They considered that the Court had never before required that notice of a claim be given by one state to another, and that the latter state reject the claim, for a “dispute” to exist. They noted that the Court had previously taken account of the parties' conduct and positions as stated before the Court. Several of the judges expressed the view that the dispute had existed long before the conflict of August 2008.
In respect of the second preliminary objection, the majority concluded that Article 22 established preconditions to be fulfilled before any proceedings were commenced, i.e. requirements to (a) resort to CERD procedures and (b) negotiate. It did not state whether these preconditions were cumulative or alternative.
This conclusion, too, was the subject of strong dissent. The joint dissenting opinion expressed dissatisfaction with the treatment of prior jurisprudence (including the 2008 decision on provisional measures) on the question of whether these conditions had to be met before proceedings were commenced. The opinion also asserted that the majority's conclusion was out of step with recent jurisprudence of the Court, which suggested that if a condition was fulfilled between the application and the decision of the Court on jurisdiction, it would be “pointlessly formalistic to refuse to take account of the fulfilment of the initially unmet condition after the filing of the application” (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008).
Having found that Article 22 established preconditions, the majority concluded that Georgia had not fulfilled them and consequently the Court had no jurisdiction. Concerning (a) resort to CERD procedures, Georgia did not claim that it used or attempted to use these procedures prior to filing its application, so any requirement to have resort to these measures would not have been satisfied. Concerning (b) negotiations, the majority indicated that it was not necessary to refer in any negotiations expressly to the treaty in question, but held that there must have been negotiations concerning the substantive obligations contained in CERD. It was therefore incumbent on Georgia to show that it had attempted negotiations with Russia concerning compliance with its substantive obligations under CERD. In this respect, the majority's conclusion that a dispute capable of falling under CERD had only arisen on 9 August 2008 had a significant impact on its analysis, because any discussions before that date were consequently of no relevance. The relevant period was therefore 9 to 12 August 2008, and the majority concluded that the topic of ethnic cleansing had not become the subject of genuine negotiations or attempted negotiations between the parties in that period. It followed that the requirement to negotiate was not satisfied.
On this point too, the majority's decision attracted criticism. The joint dissenting opinion considered the decision to be excessively formalistic and advocated a more realistic approach, asking whether there was “a reasonable possibility of negotiating a settlement of the dispute” on the date of the application, and if so, whether such a possibility still existed at the date of decision. The opinion considered that there was no possibility of negotiating a settlement at the time the proceedings were commenced.
Given the slim majority achieved on provisional measures, it is no surprise that the Court was divided on preliminary objections. What is surprising is that this decision appears to run contrary to the Court's move away from formalism in recent times, most notably in Croatia v Serbia, where the Court expressly advocated “realism and flexibility in certain situations in which the conditions governing the Court's jurisdiction were not fully satisfied when proceedings were initiated” (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 438 (para 81)). Whether this decision is an anomaly or the start of a new trend remains to be seen.
