The Provisional Measures Order in Georgia v. Russian Federation: Trying to Navigate Between Scylla and Charybdis

by Chris Borgen

Last week the ICJ issued an order for provisional measures  (pdf is here) in the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) . This case, along with the recent referral to the ICJ for an advisory opinion on the status of Kosovo, are the latest cases arising out of secessionist conflicts that have come to the ICJ docket. Both cases present complex facts and will not only be important regarding the evolving jurisprudence and state practice concerning secession and self determination, but will also be important markers concerning the strengths and weaknesses of the ICJ.

The ICJ will have to also navigate between its desire for relevance and the risk of overstepping its mandate. It will not be an easy task…

Georgia’s case contends that the Russian Federation has breached its obligations under Articles 2,3,4,5, and 6 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD). See Order, paras 20-21. The alleged violations include (among others):

“[W]idespread and systematic discrimination against South Ossetia’s and Abkhazia’s ethnic Georgian population and other groups during the conflicts of 1991-1994, 1998, 2004, and 2008;”

Denial of the rights of ethnic Georgian internally displaced persons (IDP’s);

The appropriation and sale of homes and property belonging to South Ossetia’s and Abkhazia’s ethnic Georgians;

Sponsoring and supporting ethnic discrimination by the de facto regimes in South Ossetia and Abkhazia;

Preventing Georgia from exercising its authority over the separatist regions in enforce their obligations under the CERD; and

The launching of a war of aggression against Georgia for purposes linked to racial or ethnic discriminatory policies and the denial of self-determination.

See Order, para. 21.

Pause for a moment to reflect whether the last two listed items, in particular, may be pushing the CERD beyond where it was intended. The Amended Request for Provisional Measures asked that

The Russian Federation shall take all necessary measures to ensure that no ethnic Georgians or any other persons are subject to violent or coercive acts of racial discriminations, including but not limited to the threat or infliction of death or bodily harm, hostage-taking and unlawful detention, the destruction or pillage of property, and other acts intended to expel them from their homes or villages in South Ossetia, Abkhazia and/or adjacent regions within Georgia;

The Russian Federation shall take all necessary measures to prevent groups or individuals from subjecting ethnic Georgians to coercive acts of racial discrimination, including but not limited to [the list of acts in the previous paragraph]…

The Russian Federation shall refrain from adopting any measures that would prejudice the right of ethnic Georgians to participate fully and equally in the public affairs of South Ossetia, Abkhazia and/or adjacent regions within Georgia…

Order, para. 48.

I’ve written in other blog posts about how I think Russia is in violation of international law in its intervention in Georgia. However, while I think there is a good argument that Russia has violated its obligations under the UN Charter, the customary rules of use of force, as well as other sources of law, I am ambivalent about this suit being brought under the CERD. As Russia argued, (see para. 70), this suit is not really about racial discrimination, it is about a military intervention.

On the one hand, I see the logic of Georgia’s strategy: outmanned and outgunned, they turn to the figurative court of public opinion and the literal International Court of Justice in an attempt to gain some leverage. They would not be able to get jurisdiction over the Russian Federation in a suit arising out of alleged violations of the UN Charter or of customary international law, so I assume that they chose to sue under CERD because it provided a better jurisdictional hook as the Russians have accepted via article 22 of the CERD the ICJ’s jurisdiction in resolving disputes.

But is this what the CERD was meant to address? Separatist conflicts often have a significant racial or ethnic component and there is a strong argument that Russia’s responsibility extends to wherever it has effective control such as South Ossetia and Abkhazia at the time the suit was filed (see Order para. 109). So, on the one hand, I can see that such an application of the CERD may be keeping in the spirit and purpose of the treaty.

However, and I say this without having delved into the drafting history, I am skeptical as to whether the state parties actually intended the CERD to be used to regulate armed conflict in this manner. There are other treaties that cover the issues in dispute. And, as the Russians argued, the heart of this case is not about racial discrimination, per se, but about use of force and territorial integrity. See Order para. 83.

The ICJ is in a difficult position. On the one hand, it has faced criticism for mis-steps in politically heated issues, such as the advisory opinions on the Israeli security barrier and nuclear weapons, as well as certain opinions in the Oil Platforms decision. The ICJ needs to be careful in this case not to extend the CERD beyond its intended use.

In any case, the ICJ has pushed these issues forward to the next phase of briefing. For now, it notes that it does not need to conclude whether or not it has jurisdiction beyond a prima facie finding. It also finds that the disagreement over whether the CERD applies is itself a dispute over the interpretation of the CERD (Order para. 112).

I will not get into the various arguments over whether or not provisional measures themselves were warranted. Rather, I simply note that the Court, by eight votes to seven, did order provisional measures and turn to their substance.

Operative paragraphs 1, 2, and 4 (within paragraph 149 of the Order) restate in broad terms the goals of the CERD, obligating both Russia and Georgia to

(1) refrain from any act of racial discrimination against persons, groups of persons or institutions;

(2) abstain from sponsoring defending or supporting racial discrimination by any persons or organizations…

(4) do all in their power to ensure that public authorities and public institutions under their control or influence do not engage in acts of racial discrimination against person, groups of persons or institutions…

However note the scope of paragraph 3. The Parties must:

(3) Do all in their power, whenever and wherever possible, to ensure, without distinction as to national or ethnic origin,

(i) security of persons;

(ii) the right of persons to freedom of movement and residence within the border of the State;

(iii) the protection of the property of displaced persons and of refugees…

Admirable goals all, but, once again, doesn’t this go beyond the scope of the CERD? Paragraph 3 is not so much about nondiscrimination as about the provision of certain underlying rights to all. Given the state of conflict at the time of the application, this is practically an order to cease-fire. Once again, I want to reiterate that I think that Russia was in the wrong but I am not sure that the reason they were in the wrong was because of the CERD.

The ICJ is entering treacherous waters and they will have to navigate between their desire to fix things and the risk of overstepping their mandate. We will track not only this case, but the Kosovo advisory opinion referral as they progress…

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