On August 12, 2008, a new case was filed in the International Court of Justice (ICJ) it had never seen before. Georgia had begun a long contentious case against Russian Federation for alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination.
Some might be curious why the ICJ carried this case on racial discrimination for 3 years. The answer was obvious; punish the ones who mistreated the people on the basis of their race. But does anyone know what racial discrimination actually means? Or how international law could be applied to solve the disputes? The ICJ had to figure out these simple yet complex questions, and for the first time, deeply dig into the concept of racial discrimination.
Sadly, few know that there is actually an instrument that had defined and made the foundation of laws about racial discrimination. It’s called the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). By the United Nations Assembly, on December 21, 1965 this convention was introduced to facilitate the eradication of any kind of discrimination which exists. This convention defined racial discrimination as “any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” The convention instituted a committee made up of human rights experts to check how countries are doing to fulfill responsibilities under this convention, and obligated countries to annually report their status quo. Moreover, it provided basis of laws for countries to follow to prevent discrimination. However, it was a clash of interpretation on those laws that made Georgia and Russia fall upon a conflict.
On 2008, Georgia argued that Russia had discriminated and unlawfully used force over ethnic Georgians in South Ossetia and Abkhazia to do “ethnic cleansing”. They argued that Russia should stop any other actions or measures including any kind of discrimination over ethnic Georgians. Georgia heavily relied upon Article 22 of ICERD to support its argument.
“[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”.
However, Russia retorted that the term ‘dispute’ was very controversial; it had a special meaning and was inappropriate to apply to this particular situation. Therefore, it argued the Court had no claim over solving the dispute. Also, Russia numerously pointed out that Georgia had failed to produce real evidence regarding the supposedly ‘urgent danger’ it was facing from Russia.
The Court finally decided it had jurisdiction over the two countries, asserting its right to judge on Russia’s racial discrimination toward Georgians. It concluded that Russia should refrain from any kind of discrimination. As a result, Georgia had captured the victory flag first.
However, Russia immediately raised preliminary hearings on 2009 and thus the two nations clashed for another 2 years. In the end, the Court revoked its initial verdict, and claimed that it had no jurisdiction over the judgement they made in 2008 because although it was a ‘dispute’, the two nations had failed and in fact never tried to negotiate. In other words, the requirements needed in Article 22 were never met, thus the ICJ couldn’t judge the situation of racial discrimination happening to ethnic Georgians. Naturally, Georgia was disappointed as ICJ recognized Russia’s legitimate arguments.
Status Quo of CERD
After the ICJ finished the case of Russia Federation versus Georgia, to prevent any further dispute over ICERD articles’ terms, the CERD published a General Recommendation and explained the meaning and scope of terms. However, the CERD realized the report system wasn’t working as well as was expected, especially in developing countries because it had other important matters to take care about other than human rights pertaining to racial discrimination. Therefore, it started to strictly monitor the process of reports and currently, more countries are actively sending their reports, both developed (f.e. the UK and the USA) and developing countries (f.e Pakistan) alike. Will CERD effort meet its goals? Will racial discrimination be eliminated? It’s up to the countries which will have to send their report faithfully on time and make measures recommended by the CERD to eradicate racial discrimination, once and for all.
Written by 최제윤