Guest-Post: Anna Dolidze on the ICJ Judgment in Georgia v. Russia

The following is a guest post by Anna Dolidze, a JSD candidate at Cornell Law School. In 2007-08, Dolidze was
 an Albert Podell Global Scholar at Risk at New York University Law
 School and a Visiting Fellow at Columbia University’s Harriman Institute.  She has worked for a number of international organizations, including for Save the Children, Russian Justice Initiative, and Human Rights Watch.  Our thanks to her for the contribution!

Last week the International Court of Justice handed down the judgment on Preliminary Objections in the case of Georgia v. Russian Federation. With ten votes to six, the Court upheld the preliminary objection by Russia and declined to proceed to consider the case on merits. The judgment presents interesting material for examination from many angles. As the dissenting opinions have already been made publicly available, their close examination will give food for thought to those that study politics at the international court. The judgment is also noteworthy for its detailed treatment of Article 22 of the Convention on Elimination of All Forms of Racial Discrimination (CERD) and its history. It is also interesting to see how the Court examined the political rhetoric from both countries through the lens of international law. Those that study how military confrontation is translated into “lawfare” will also find interesting material for contemplation. One particular aspect of the judgment, with which I shall deal in this post, is how it played out in domestic politics in both countries. Russian and Georgian political actors interpreted the judgment variably. Yet, they were similar in one particular way. Government agencies of both countries announced it as victory for their country. Furthermore, a look at how domestic political players in Georgia handled the judgment confirms, once again, that judgments of international tribunals are part and parcel of Dezalay and Garth’s concept of “international strategies.” Domestic actors “use foreign capital, such as resources, degrees, contacts, legitimacy, and expertise … to build their power at home.” Georgian government and political actors interpreted the judgment with the view to maximize their own domestic political capital.

The case was launched by the application filed by Georgia on August 12, 2008. On the same day President of France Nicolas Sarkozy proposed a cease-fire in the Georgian-Ossetian zone of conflict. Georgia requested the Court to declare that Russia violated its obligations under CERD by engaging in acts and practices, contrary to Articles 2,3,4,5 and 6 of CERD. Its application mainly concerned Russia’s responsibility for actions on the territory of two secessionist republics of Georgia, Abkhazia and South Ossetia. Georgia had filed a complaint on the basis of article 22 of CERD. Article 22 provides, “[a]ny 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 in the parties on July 2, 1999.

Both parties have benefited from the legal representation of the prominent figures in international law, including James Crawford and Phillip Sands representing Georgia and Allain Pellet and Andreas Zimmerman representing Russia. Russia raised preliminary objections to the jurisdiction of the Court. Firstly, Russia contended that there was no dispute between the parties within the meaning of article 22. Secondly, that the procedural requirements for the recourse to article 22 have not been met.

On the first objection, the Court concluded that there was a dispute between the parties on Russia’s compliance with the CERD Convention. Therefore, Russia’s first objection was dismissed. However, the Court upheld Russia’s second objection on the basis that procedural requirements of article 22, particular that of prior attempts to negotiation, have not been met. Hence, The Court declined its jurisdiction. Official sources of both Russia and Georgia announced the judgment as a victory.

An April 1, 2011 statement of the Ministry of Foreign Affairs of Russian Federation indicated “the Court agreed with the objections and argumentations by the Russian Federation against consideration of the case on merits. Russian side is satisfied with the decision adopted by the Court.” On the same day, the Ministry of Foreign Affairs of Georgia announced on its website that “the most important in the judgment is the fact that the Court took into account Georgia’s main argument, in particular, that it legally recognized and confirmed that Russian Federation, not some other third entity, is the party to the conflict between Georgia and Russia.”

However, political actors in Georgia and Russia received the judgment with different degrees of intensity. In Russia, the judgment did not become a subject of more discussion in the media and was not followed up with special press briefings of high-ranking government or opposition leaders. In Georgia, in contrast, the judgment became a subject of political contention. Both the leaders of the government as well as of the opposition addressed the matter with special briefings and statements. It is noteworthy that interpretations of the judgment by government representatives were divergent.

For example, in the English language interview with Radio Liberty Deputy Minister of Justice Tinatin Burjaliani assessed the ruling as a “disappointment” and stated, “What became clear after today’s decision is that although the proceedings will not immediately continue, the court leaves the possibility open for Georgia to try to settle this issue through negotiations.”

At the press conference in Georgian, the Deputy Minister of Foreign Affairs Nino Kalandadze evaluated the judgment as “beneficial for Georgia, as, according to her, the Court satisfied the main request by Georgia and recognized Russia as direct participant in the conflict. According to Kalandadze, “the fact that the Hague Court made a legal legitimating of the dispute between Georgia and Russia is a great victory for Georgia.”

Akaki Minashvili, Deputy Chair of Parliament’s Foreign Affairs Committee stated that The Hague Court “temporarily suspended” consideration of the Case. The Court considered that Russia and Georgia still possess certain resources for dialogue, “therefore it will resume hearing the case as this resource is exhausted.

While no leaders of opposition parties commented on the judgment in Russia, in Georgia representatives of opposition parties specifically addressed the issue. Leader of the Christian- Democrats assessed the decision of the Court as “diplomatic.” He reasoned that the Court probably avoided exacerbating tensions with Russia. “The Court found a diplomatic way not to antagonize a big country like Russia..”

One the leaders of the Free Democrats Opposition party, Tea Tsulukiani, called Georgian government’s actions “irresponsible.” According to her, the judgment meant that the Court would not hear on merits the issues of paramount importance to Georgia, because the Ministry of Justice of Georgia did not meet procedural requirements. At the very least, Tsulukiani explained, Georgian side had to appeal to the Committee on Racial Discrimination before filing an application in The Hague. According to Tsulukiani, because application was directly filed in the ICJ with the “habitual hotheadedness,” Georgia’s position on this very important issue was undermined procedurally. “In the best case scenario, this is lack of professionalism of the leaders of the Ministry, who represented Georgia’s interests.”

Although it is difficult to hypothesize on the reasons for such a difference in domestic reactions towards the ICJ judgment, it’s possible to come up with basic factors, which influenced how the judgment played out among domestic political actors in both countries.

The question could be considered through the lens of discussion on the degree of influence of international law and international tribunals on country’s politics. Research in international relations has been conclusive on the fact that poorer and weaker countries are more susceptible to international pressure. In any case the judgment of the International Court of Justice would have a much bigger impact on Georgia, than on the regional military leader, oil rich Russia, which also holds a permanent seat at the Security Council.

The difference in the degree of intensity of reactions to the judgment might be related to the importance of disputed issue. Currently, for Russian political circles and audience, the underlying issue of Abkhazia/ Ossetia and Russia’s role thereto is peripheral. While in Georgia, the issue of Georgia’s territorial integration consistently ranks at the top of public opinion concerns.

The degree of intensity of political debates following an international judgment could also be related to the outcome. One could hypothesize that an unfavorable outcome at the international level allowed Georgian domestic opposition to gain some capital by criticizing the Government strategy. As the government anticipated this reaction, it took preemptive measures with an active public relations campaign of justifying its position.

Lastly, the nature of government, domestic civil society and media should also certainly be taken into account. In this particular setting, reports by international human rights organizations increasingly liken the Russian and Georgian governments in their authoritarianism. In both countries one political party dominates all branches of the government. Opposition parties are weak and the government controls major media sources. The dynamic between international law and domestic actors would certainly be different in liberal democracies.