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The International Court of Justice, the Meaning of a “Dispute” and the Concept of “Negotiations”

On 1 April 2011, the International Court of Justice (the “Court”) delivered its judgment on preliminary objections in the case concerning Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation). The Court, by a 10-6 majority, held that it had no jurisdiction to entertain the application filed by Georgia on 12 August 2008.

Background

The case arose out of the hostilities between Georgia and the Russian Federation (“Russia”) that commenced in August 2008. Georgia sought to found jurisdiction on the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”), which provides in Article 22 that:

“Any 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.”
The existence of a “dispute”

Russia raised two principal preliminary objections to jurisdiction. First, it claimed that there was no “dispute” between the Parties “with respect to the interpretation or application” of CERD. Second, Russia contended that Article 22 contained preconditions to the seisin of the Court that had not been fulfilled.
In considering evidence of a dispute between Georgia and Russia, the Court limited itself to an appraisal of official documents and statements. It found that there existed a dispute regarding CERD only between 9 August 2008 and 12 August 2008. It was only during this limited period that Georgian official statements accused Russia of ethnic cleansing, which Russia explicitly opposed. Since a dispute as to CERD existed, albeit for a limited time, Russia’s first preliminary objection was dismissed.

Negotiations must constitute a “genuine attempt” to resolve the dispute

Russia’s second preliminary objection – that the procedural conditions in Article 22 had not been met – was upheld by the Court. Having established that Article 22 did impose preconditions to be fulfilled, the Court considered whether those preconditions had been met and whether Georgia and Russia engaged in “negotiations” prior to Georgia’s application to the Court.

The Court emphasised that negotiations must indicate “a genuine attempt” to engage in discussions with the other party. While there is no prescribed form that negotiations must take, the substance of negotiations must concern the subject-matter of the treaty which is the subject of dispute. The evidence submitted by Georgia did not suggest that ethnic cleansing (the subject-matter of CERD) had become the subject of negotiations in the relevant period, i.e. between 9 and 12 August 2008. The Court therefore held that the requirements laid down in Article 22 had not been met and that it had no jurisdiction to entertain the application filed by Georgia.

The Court’s judgment may prove controversial

The judgment of the Court could prove controversial on a number of grounds. First, the judgment appears to go beyond its previous jurisprudence on what is required for a “dispute” to exist, replacing what had previously been a flexible approach, based on a holistic evaluation of the conduct of the parties, with the requirement that a respondent positively oppose an applicant’s claim in order for a dispute to come into existence.

Second, the judgment appears to adopt a formalistic understanding of the meaning of “negotiations” that may cause difficulties in practice. The joint dissenting opinion of President Owada and Judges Simma, Abraham, Donoghue and Judge ad hoc Gaja was critical of the view of the majority, arguing that whether a duty to negotiate had been fulfilled could only be answered on a case-by-case basis, in light of the circumstances obtaining and the subject matter of the dispute.

Third, the Court’s approach to the scrutiny of evidence could attract criticism. The Court dismissed a vast amount of Georgia’s evidence prior to August 2008 as not “legally significant.” However, as Judge Simma pointed out in his separate opinion, the Court did not adequately explain this concept of “legal significance” or attempt to reconcile its approach with previous decisions that have adopted a differentiated approach to the probative weight of evidence.

It remains to be seen whether the judgment of the Court indicates a hardening of approach towards these foundational issues of jurisdiction.