Wednesday, October 15, 2008

ICJ Orders Provisional Measures in Georgia v. Russian Federation

In an 8-7 vote today, the International Court of Justice (ICJ) issued an Order for provisional measures in the Case Concerning the Application of the Convention Against All Forms of Racial Discrimination (CERD) brought by Georgia against the Russia Federation. In its August 2008 Application to the Court, Georgia alleged that the Russian Federation, acting through its own organs and through South Ossetian and Abkhaz separatist forces under Russia's direction and control, "has practised, sponsored and supported racial discrimination through attacks against, and mass-expulsion of, ethnic Georgians, as well as other ethnic groups, in the South Ossetia and Abkhazia regions of the Republic of Georgia."  Georgia further alleged that the Russian Federation seeks to consolidate changes in the ethnic composition of South Ossetia and Abkhazia resulting from its actions "by preventing the return to South Ossetia and Abkhazia of forcibly displaced ethnic Georgian citizens and by undermining Georgia’s capacity to exercise jurisdiction in this part of its territory."  Georgia contends that "[t]he changed demographic situation in South Ossetia and Abkhazia is intended to provide the foundation for the unlawful assertion of independence from Georgia by the de facto South Ossetian and Abkhaz separatist authorities." 

In reponse, Russia contends that Georgia has failed to respect the peoples' right of self-determination in those territories.  Russia also claims that it has acted as a mediator and a guarantor of peace and security in the region and has not engaged in discrimination within the meaning of CERD.  Moreover, Russia alleges that CERD is limited in its territorial application as well as its scope and does not apply to this dispute.

In its Order, the ICJ first determined that it has jurisdiction pursuant to the dispute resolution clause (Article 22) of CERD because there is a disagreement between States parties to the CERD as to the scope and application of the treaty.  The Court further states that its "power to indicate provisional measures under Article 41 of the Statute of the Court has as its object the preservation of the respective rights of the parties pending the decision of the Court, in order to ensure that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings."  The Court further states that the Court is not called upon to establish the existence of breaches of CERD, but to determine whether the circumstances require the indication of provisional measures for the protection of rights under CERD.  At this stage, the Court is not making definitive findings of fact or finding of attribution.  Nevertheless, the Court states that "the rights in question in these proceedings, in particular those stipulated in Article 5, paragraphs (b) and (d) (i) of CERD, are of such a nature that prejudice to them could be irreparable; . . .the Court considers that violations of the right to security of persons and of the right to protection by the State against violence or bodily harm (Article 5, paragraph (b)) could involve potential loss of life or bodily injury and could therefore cause irreparable prejudice; . . . the Court further considers that violations of the right to freedom of movement and residence within a State’s borders (Article 5, paragraph (d) (i)) could also cause irreparable prejudice in situations where the persons concerned are exposed to privation, hardship, anguish and even danger to life and health; and . . . the Court finds that individuals forced to leave their own place of residence and deprived of their right of return could, depending on the circumstances, be subject to a serious risk of irreparable prejudice."  Therefore, the Court finds that the indication of provisional measures is required for the protection of rights under CERD.  The ICJ calls on both parties to refrain from any acts of racial discrimination and to ensure, without distinction as to national or ethnic origin, the security of all persons, the right of freedom or movement and residence, and the protection of property of displaced persons and refugees.


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