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

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Citation. 2008 I.C.J. 140

Brief Fact Summary.

The claim of Georgia (P) that Russia (D) engaged in ethnic cleansing in its territory in clear violation of the Convention on Elimination of Racial Discrimination (CERD), was the ground upon which Georgia (P) brought suit against Russia (D).

Synopsis of Rule of Law.

Facts and other provisional measures to protect rights under international treaties without deciding the merits of a dispute, may be assessed by the International Court of Justice under certain circumstances.

Facts.

The Russian (D) violation of the Convention on Elimination of Racial Discrimination (CERD) was the ground upon which Georgia (P) brought suit against the Russian Federation (D). Ethnic cleansing in the South Ossertia and Abkhazia regions of Georgia (P) were the allegations Georgia (P) slammed against Russia (D). The protection of rights under the CERD was what Georgia asked the International Court of Justice to determine and not the merits of Georgia’s (P) argument on the CERD which Russia (D) had breached.

Issue.

Can facts and other provisional measures to protect rights under international treaties without deciding the merits of a dispute, be assessed by the International Court of Justice under certain circumstances?

Held.

(Judge not stated in casebook excerpt). Yes. Facts and other provisional measures to protect rights under international treaties without deciding the merits of a dispute may be assessed by the International Court of Justice under certain circumstances. The evidence before the court showed that the rights of the population in the affected Georgian territory and of the country under the CERD was under imminent threat by the activities of the Russian (D) and this made the vulnerability of the Georgian (P) population obvious.
Under the I.C.J’s Statute, the Court is empowered to indicate measures to protect those rights even if they are not exactly as requested, without prejudging the question of the I.C.J’s jurisdiction to deal with the merits of the case. Hence, any act of racial discrimination against persons, groups of persons or institutions and support of racial discrimination must not be encouraged by both parties but they should ensure that they prevent such discrimination in all its ramifications.

Discussion.

Although Georgia’s (P) request was for the I.C.J to stop Russia (D) from engaging in racial discrimination and ethnic cleansing, the ruling of the Court went beyond this by applying it to both parties. Hence, that was the way in which the Court used its statutory authority to indicate measures that were not exactly as requested. This implies that the common law preliminary injunction is similar to the protective measures.