International Case Law Analysis: Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation)

Introduction

Georgia had brought an action against Russia before the International Court of Justice (ICJ) in relation to the alleged breach of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Georgia had accused Russia of engaging in and endorsing violent discriminatory conducts carried out by Russian armed forces as well as Russian backed separatist groups in the breakaway-regions of South Ossetia and Abkhazia. This case unveiled to us significant legal questions regarding jurisdiction, state responsibility, and the applicability of international human rights law during an armed conflict.

Facts of the Case

In 2008, Russia had begun its invasion of Georgia, to which Russia has maintained direct influence and control over the breakaway regions of South Ossetia and Abkhazia to this day, which were not internationally recognised. During the 5 days war, Russian troops temporarily occupied parts of Georgia, even after the ceasefire. However, Russia did withdraw its troops from undisputed areas of Georgia by October 8. On August 28, 2008, the Parliament in Georgia had unanimously voted to pass a resolution proclaiming South Ossetia and Abkhazia as Russian-occupied Georgian territories, designating Russian forces as the illegal occupiers. Meanwhile, Russia had established diplomatic relations with the breakaway-regions, to which Russian President Dmitry Medvedev had signed decrees, bringing Russia to officially recognised the breakaway-regions as sovereign and independent countries.

By bringing an action before the ICJ, Georgia alleged that Russia had, directly and through its support of the separatist groups, took part in ethnic cleansing whereby ethnic Georgians were forcefully expelled from their homeland. Georgia further contended that these conducts had violated the principles of ICERD, which includes acts of racial discrimination, forced displacement through mass-expulsion as well as deprivation of the rights and entitlement of ethnic Georgians. Russia, however, rejected these allegations, arguing that if there was indeed a dispute, it would be one of use of force, humanitarian law, territorial integrity, rather than a matter of racial discrimination. Moreover, Russia also asserted that, among other things, the procedural requirements under Article 22 of ICERD was not fulfilled by Georgia.

Legal Issues & Arguments

A key legal issue was whether the ICJ had jurisdiction under ICERD to hear claims brought forward by Georgia. Georgia contended that Russia’s conducts had fell within the scope of ICERD and that Article 22 of ICERD had also bestowed an apparent basis for the ICJ’s jurisdiction. However, Russia had disputed this contention, asserting that Georgia was not engaging in meaningful negotiations prior to commencing the proceedings, as provided under Article 22. This had brought about the fundamental question of whether Georgia had indeed exhausted all available and imperative diplomatic channels before moving forward to litigation at the ICJ.

In addition, another key legal issue was whether ICERD was applicable in the circumstances or conditions of an armed conflict. Georgia had stood its ground, maintaining that ICERD remained applicable even in situations of war and that Russia’s conducts had amounted to racial discrimination rather than just military aggression. On the contrary, Russia contended that ICERD was not the suitable or proper legal framework to examine the conducts during an armed conflict. Rather, Article 2 and 5 of ICERD are not applicable extraterritorially, whereby Russia claimed South Ossetia and Abkhazia as not Georgian territories. This dispute brought to light the broader conflict between human rights law and humanitarian law in situations concerning armed conflicts and claims of racial discrimination.

On top of that, another issue is in regards of state responsibility as well as the attribution of actions by separatist groups to Russia. Georgia claimed that Russia should be held responsible for the conducts of the separatist groups in the breakaway-regions because of the support Russia had provided, which spanned across political, military and financial. As a response, Russia had denied exercising effective control over the separatist groups and affirmed that their conducts were not attributable to Russia under international law, thus raising the question of Russia’s legal responsibility.

Court’s Decision & Reasoning

On October 15, 2008, the ICJ, by eight votes to seven, had provided an order on provisional measures, holding that both Georgia and Russia were obliged to abide by the obligations as provided under ICERD. The ICJ found that it had prima facie jurisdiction to hear the case. However, it stressed that this did not preclude any further jurisdictional challenges which may arise later on. This order of provisional measures emphasized on preventing further harm to the local inhabitants who could be adversely affected by racial discrimination in South Ossetia and Abkhazia, as well as the neighbouring areas in Georgia.

Moreover, the ICJ ruled that both parties shall withhold themselves from conducts amounting to racial discrimination against individuals, groups, or institutions and guarantee the protection and security of the property of displaced persons or refugees. The ICJ further held that humanitarian assistance must not be obstructed in any way, but instead both parties shall facilitate such assistance to affected individuals. On top of that, both Georgia and Russia shall refrain from any actions that might provoke the dispute or prejudice the Court’s ruling. By imposing such obligation, the Court seek to prevent further escalation in the region, putting an end to the racial discrimination.

However, the order of provisional measures issued on October 15, 2008, ceased to operate when the Court delivered a judgment upholding Russia’s second preliminary objection on April 1, 2011. This is because the ICJ had decided upon that it lacked the appropriate jurisdiction to act on the merits of the case. The ICJ upheld the preliminary objection raised by Russia, that is, Georgia had failed to satisfy the procedural requirements as stipulated under Article 22 of ICERD, particularly the requirement to partake in negotiations prior to bringing the case before the Court. Thus, by ten votes to six, the case brought forward by Georgia was dismissed due to its non-fulfilment of entering into negotiations as required in order to establish jurisdiction under ICERD. Nevertheless, the dissenting judges argued that Article 22 was interpreted by the Court in an overly restrictive manner, and that Georgia had in fact sufficiently attempted to bring up its concerns with Russia before filing the case.

Critical Analysis

The ruling in this case demonstrates the significance of complying with procedural requirements in international litigation. The Court had adopted a strict interpretation of Article 22 of ICERD, requiring that any disputes shall be subjected to negotiations first before the Court can undertake any jurisdiction. Thus, setting a precedent for future cases, highlighting that it is necessary to exhaust all available and appropriate diplomatic avenues before bringing an action to the Court.

Moreover, the Court’s refusal to rule on the issue of state responsibility because of jurisdictional dismissal had left many questions unanswered, including how state responsibility is determined in cases like this which involves indirect support by state actor towards non-state actors who are allegedly taking part in racial discrimination. The Court, by dismissing the case on procedural grounds, had avoided addressing the claims of racial discrimination and forced displacement. The outcome of this case had showcased the challenges faced by states, especially smaller ones, seeking legal remedies for human rights violations in international courts, where procedural requirements can act as an obstacle to adjudication. Unresolved legal issues in a post-conflict setting could lead to uncertainty as well as unchecked legal and humanitarian violations, making further instabilities and conflicts more likely.

As for its geopolitical consequences, the Court’s dismissal of the case had not just failed to curb Russian influence in South Ossetia and Abkhazia but had strengthened Moscow’s grip over the regions militarily and politically. This had allowed Russia to unilaterally recognise both territories as independent and sovereign, further distancing themselves from Georgia, who is the rightful owner over the territory. Furthermore, the case had set an unfortunate legal precedent for Russia’s unilateral conducts in Crimea and Donbas, where Russia had similarly justified its intervention by claiming to protect ethnic Russians that serves as a façade to advance Russia’s expansionist and imperialist goals. With the subsequent invasion of Ukraine in 2022, Russia had exploited its perceived impunity to act however it wants. All of these had demonstrated the weaknesses in such ruling which had also exposed the limitations of international law in holding powerful states accountable, as Russia had effectively navigated through procedural barriers to evade legal responsibility.

As a response to Russia’s unprovoked aggression, Georgia accelerated its efforts to join NATO and EU, seeking stronger security guarantees against future Russian aggression, while Russia used its military presence in the occupied regions to crush Georgia’s Western integration ambitions. Consequently, such geopolitical standoff continues to influence the security dynamics in not just the Caucasus but also Eastern Europe, reflecting how international legal ruling can have lasting strategic implications beyond the courtroom. As an example, Armenia no longer view Russia as a valid security guarantor after Russia turn its back on Armenia and acted as an incompetent peacekeeper between Armenia and Azerbaijan in relation to the Nagorno-Karabakh conflict. This increasing distrust had prompted Armenia to shift its foreign policy towards Western sphere of influence by drafting bill which aimed at the eventual integration with the European Union. As for Eastern Europe, there is Transnistria, a self-proclaimed sovereign state, that is legally Moldovan territory. The only reason for its continuing existence is because of Russia’s support militarily, economically and politically. Russia’s economic support can clearly be seen when the de facto state was plunged into an energy crisis because of Ukraine’s decision to stop Russia’s gas from flowing into Transnistria via its territory. Transnistria clearly could not survive without the lifeline Russia had granted them. Through all these examples, we can clearly observe Russia’s interference of the domestic affairs of these countries because of how Russia holds the de facto green card to act without impunity, and this Georgia v Russian Federation case by ICJ definitely reinforced that argument further.

Conclusion

To conclude, Georgia v Russian Federation highlights the interplay between international law and geopolitical strategy. It revealed both the strengths and the shortcomings of the ICJ in resolving disputes that involves powerful states and how such states had managed to utilise legal procedures to avoid substantive rulings. While the case reinforced the procedural requirements in international dispute resolution, it also revealed the gaps in enforcement during conflict scenarios. In the end, this case serves as a crucial benchmark for conceptualizing the role of international courts in adjudicating politically charged disputes and their broader implications for legal accountability and geopolitical significance.

Reference (s):

1. International Convention on the Elimination of All Forms of Racial Discrimination
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