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John H. Currie, Faculty of Law, University of Ottawa

Craig Forcese, Faculty of Law, University of Ottawa

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Wednesday
Apr132011

The ICJ Refines the Art of Jurisdictional Formalism: Georgia v. Russia

By Craig Forcese

Cross-referencing: ch. 3, p.263 et seq.

In April 2011, the International Court of Justice dismissed a complaint brought before it by Georgia in relation to Russia's conduct in South Ossetian and Abkhaz, secessionist territories in Georgia.  The complaint was grounded in the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and alleged, inter alia, that Russia has engaged in, sponsored, defended and supported racial discrimination in the secessionist regions.

ICJ jurisdiction over the dispute was sought in Art. 22 of the Convention, which 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”.

In ultimately declining jurisdiction, the Court concluded that the phrase "which is not settled by negotiation" was a precondition on the matter being adjudicated at the ICJ.  It held that Georgia had not negotiated on the question of racial discrimination with Russia (applying an arguably narrow understanding of what constitutes negotiation), and that the ICJ was, therefore, without jurisdiction in the matter.

Sadly, this decision constitutes a further refinement of the ICJ's inimitable ability to limit its own relevance.  An embarrassingly slender court docket is rendered even more slender if one counts only those decisions on which the ICJ has reached the merits, since its inception in the 1940s.

On the particulars of this case, the ICJ adopts a highly technical and doubtful "ordinary meaning" interpretive doctrine to craft preconditions on its jurisdiction.  As the strong dissent from five of the ICJ's judges notes, the majority's construal rests, essentially, on a redundancy argument: if the disputed phrase is not a precondition, its presence would be unnecessary as a "dispute which is not settled" is no dispute at all, and the phrase would be an unnecessary modifier of the the word "dispute". 

This position is a failure of imagination, if nothing else: the provision "dispute which is not settled by negotiations" could equally be viewed, not as a precondition to jurisdiction, but as a mootness provision.  That is, the ICJ has jurisdiction only to the extent that the dispute remains extant, and not where it has been rendered academic by resolution through negotiation (or the other procedures outlined in the CERD).

In the end, the ICJ decision does nothing more than interpose a sort of "exhaustion of alternative dispute settlement methods" requirement, one that tarries but does not necessarily end this case.  Presumably, it is open now to Georgia to invite negotiations, the failure of which reignites this case.  But at the cost of delay and irresolution, and now with a jurisdiction-shy ICJ that will forever after need to decide whether these negotiations were good enough or not to satisfy the asserted "precondition".  The ICJ does itself no favours in rendering this sort of decision, hamstringing itself on such doubtful grounds.