Georgia v Russian Federation

• Judge: Higgins,Al-Khasawneh,Ranjeva,Shi,Koroma,Buergenthal,Owada,Simma,Tomka,Abraham,Keith,Sepúlveda-Amor,Bennouna,Skotnikov,Gaja,Cançado Trindade,Yusuf,Greenwood,Xue,Donoghue
• Court: European Court of Human Rights
• Date: 01 April 2011

International Court of Justice2

Order on Provisional Measures of Protection.

Judgment on Preliminary Objections.

(Higgins, President; Al-Khasawneh, Vice-President; Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Seplveda-Amor, Bennouna and Skotnikov, Judges; Gaja, Judge ad hoc)

(Owada, President; Tomka, Vice-President; Koroma, Al-Khasawneh, Simma, Abraham, Keith, Seplveda-Amor, Bennouna, Skotnikov, Canado Trindade, Yusuf, Greenwood, Xue and Donoghue, Judges; Gaja, Judge ad hoc)

Application of the International Convention on the Elimination of all Forms of Racial Discrimination

(Georgia

and

Russian Federation)1

Human rights Treaties Interpretation of human rights treaties Compromissory clauses Convention on the Elimination of All Forms of Racial Discrimination, Article 22 Whether imposing preconditions on the seisin of the International Court of Justice Scope of application of Convention Whether applicable extraterritorially Conflict between Georgia and Russian Federation in 2008 Allegations of ethnic cleansing in Abkhazia and South Ossetia Whether dispute regarding the interpretation or application of the Convention

International Court of Justice Provisional measures of protection Criteria for indication of measures Prima facie basis for jurisdiction Application by Georgia against Russian Federation Convention on the Elimination of All Forms of Racial Discrimination, Article 22 Whether prima facie basis for jurisdiction Measures must be designed to protect rights which might form the subject-matter of a judgment Requirement of urgency

International Court of Justice Jurisdiction Consent of States as basis of jurisdiction Dispute Definition of dispute Convention on the Elimination of All Forms of Racial Discrimination, Article 22 Types of dispute covered by Article 22 Conflict between Georgia and Russian Federation in 2008 Whether dispute between the Parties regarding the interpretation or application of the Convention Date on which dispute came into existence Whether Article 22 imposing preconditions on seisin of the Court Requirement of negotiations Relationship between decision on prima facie basis of jurisdiction at provisional measures stage and definitive ruling on jurisdiction Whether compromissory clauses in human rights treaties requiring different approach to interpretation

International organizations United Nations Security Council Exchanges between States in meetings of Security Council Whether capable of establishing existence of dispute Whether capable of constituting attempt to resolve dispute by negotiation

Treaties Interpretation Principles of interpretation Principle of effet utile Role within framework of treaty interpretation Human rights treaties Compromissory clauses Convention on the Elimination of All Forms of Racial Discrimination, Article 22 Approach to interpretation

War and armed conflict International armed conflict Conflict between Georgia and Russia in 2008 Conflicts in Abkhazia and South Ossetia Ethnic cleansing Whether giving rise to dispute within Convention on the Elimination of All Forms of Racial Discrimination, Article 22

Summary: The facts:Until 1991 the Georgian Soviet Socialist Republic (the GSSR) was one of the constituent republics of the Union of Soviet Socialist Republics (the USSR). In December 1991 the USSR was dissolved. The GSSR, which had declared independence in April 1991, became the independent State of Georgia. During the period immediately prior to, and that immediately following, the dissolution of the USSR, fighting broke out in South Ossetia and Abkhazia, two regions within Georgia, between supporters of secession or greater autonomy for the regions and the Georgian authorities. Georgia alleged that during these hostilities, the Russian Federation provided assistance to separatist forces. The initial hostilities in South Ossetia were brought to an end by the Agreement on the Settlement of the Georgian-Ossetian Conflict, concluded in June 1992 between Georgia, the South Ossetian separatist forces and the Russian Federation. The initial hostilities in Abkhazia ended with the conclusion in 1994 of the Moscow Agreement on a Ceasefire and Separation of Forces between Georgia, the Abkhaz separatist forces and the Russian Federation. Both agreements provided for the deployment of peacekeeping forces, the largest components of which were troops from the Russian Federation.

Georgia maintained that during the hostilities there was extensive ethnic cleansing in both South Ossetia and Abkhazia, with large numbers of persons of Georgian ethnic origin forced to flee their homes, and that, following the conclusion of the two agreements, Russian forces colluded with separatists to prevent these displaced persons from returning. In addition, Georgia contended that ethnic Georgians remaining in the two regions were persecuted and in some cases attacked by military forces. Georgia alleged that between 1994 and 2008 the Russian Federation supported moves towards secession by separatists in the two regions and colluded in, or gave active support to, the persecution of ethnic Georgians and other minorities in South Ossetia and Abkhazia.

In August 2008 extensive fighting broke out between Georgian and Russian forces in and around both South Ossetia and Abkhazia. According to Georgia, on 7 August 2008 Georgian forces commenced limited operations in South Ossetia in response to extensive shelling of ethnic Georgian villages and the Russian Federation responded with a full-scale invasion of Georgian territory. At the same time, fighting broke out in Abkhazia as a result of Russian deployment there. Georgia maintained that the hostilities involved large-scale discrimination by Russian and separatist forces against persons of Georgian ethnicity and other minority groups. The Russian Federation denied this account and contended that Georgian forces had launched a major offensive in South Ossetia at the start of August 2008, during which members of the Russian contingent in the peacekeeping force had been deliberately targeted, and that the Russian Federation had been obliged to respond to this offensive for humanitarian reasons and to protect its personnel. The Russian Federation maintained that it had been a neutral intermediary and peacekeeper. Major hostilities came to an end with the conclusion of a fresh agreement on 12 August 2008.

On 12 August 2008, Georgia filed an Application commencing proceedings against the Russian Federation. The Application gave, as the basis for the jurisdiction of the Court, Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination, 1965 (CERD), which provides:

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.

CERD entered into force between Georgia and the Russian Federation on 2 July 1999. The Application accused the Russian Federation of committing multiple violations of CERD in Georgia.

Request for the Indication of Provisional Measures of Protection (15 October 2008)

Georgia also submitted a Request for the indication of provisional measures of protection under Article 41 of the Statute of the International Court of Justice. The Russian Federation maintained that there was no prima facie basis for the jurisdiction of the Court and that, accordingly, no provisional measures could be indicated. According to the Russian Federation, there was no dispute falling within the scope of CERD between itself and Georgia. Russia contended that the real dispute between the Parties did not relate to racial discrimination, that the relevant provisions of CERD did not apply extra-territorially and that the preconditions for seisin of the Court under Article 22 had not been satisfied.

Held (by eight votes to seven, Vice-President Al-Khasawneh and Judges Ranjeva, Shi, Koroma, Tomka, Bennouna and Skotnikov dissenting):Both Parties should comply with the provisional measures indicated in paragraph 149 of the Order.

(1) The Court could indicate provisional measures only if it was satisfied that the provisions invoked by the Applicant appeared, prima facie, to afford a basis on which the jurisdiction of the Court might be founded. In the present case, Article 22 of CERD appeared, prima facie, to afford a basis for the jurisdiction of the Court (Order, paras. 84117).

(a) There was no restriction of a general nature in CERD relating to its territorial application, nor did Articles 2 and 5 of CERD,3 on which Georgia relied, contain a specific territorial limitation. The provisions of CERD generally appeared to apply, like other provisions of instruments

of that nature, to the actions of a State party when it acted beyond its territory (Order, paras. 1089)

(b) There appeared to be a dispute between the Parties relating to the interpretation or application of Articles 2 and 5 of CERD, even though the acts on which Georgia relied might also have been covered by other rules of international law, in particular international humanitarian law (Order, paras. 11012).

(c) Article 22 of CERD was not identical to the dispute settlement provisions of many other treaties. It did not expressly require that an attempt be made to resolve the dispute by negotiation before the Court was seised but required only that the dispute had not been so settled. Article 22 did not, on its plain meaning, suggest that formal negotiations in the framework of the Convention or recourse to the procedures under the Convention were preconditions to be fulfilled before the seisin of the Court. Nevertheless, Article 22 suggested that some attempt should have been made by the claimant party to initiate...