ICJ and Jurisdictional Technicalities

Al Jazeera English:

The International Court of Justice has said it cannot hear a complaint by Georgia that Russia committed human rights abuses in two breakaway provinces, saying it had no jurisdiction over the case.

The court in The Hague, the Netherlands, said despite the claims and counter-claims by Russia and Georgia, there was no evidence that the two parties had held negotiations to try and resolve the complaint.

[. . .]

Georgia had argued that the court had jurisdiction under an international convention on the elimination of racial discrimination. But the disputes under that convention can only be referred to the court if the countries involved have already tried and failed to negotiate a settlement.

The ICJ, which hears disputes between states, ordered both countries in October 2008 to “refrain from any acts of racial discrimination” against ethnic groups in South Ossetia and Abkhazia.

South Ossetia and Abkhazia both broke away from Georgian control in the early 1990s. Following the 2008 war over the regions, Russia recognised them both as independent states, but most of the international community and Georgia have continued to see them as belonging to Russia’s southern neighbour.

The court is carrying out a preliminary investigation into individuals on both sides who are suspected of committing war crimes during the brief 2008 war.

Very detailed legal analysis of the decision can be found here. The conclusion:

What the present decision makes clear is that, regrettably, human rights treaties provide a weak basis to found the jurisdiction of the Court, even when these treaties include such a compromissory clause. Using them as a vehicle to establish the jurisdiction of the Court is even more difficult when primarily claims about the unlawful use of force are presented under a specific human rights treaty, such as CERD. It is unfortunate that negotiations and other procedures expressly provided for in the compromissory clause of a human rights treaty are interpreted as presenting a bar to the seisin of the Court, even in an armed conflict situation. Putting the emphasis in procedural conditions present in a compromissory clause under such serious circumstances seems to me similar to putting the cart before the horse. Hopefully, the International Law Commission will provide some more clarity on this issue in the coming years.

For me, this goes back to the point I’ve been trying to hammer home elsewhere on this blog: that the primary effect of human rights treaties is on civilian populations, who use them as a barometer. It’s a tough uphill climb for countries to enforce such treaties on one another, even when as here there are enforcement mechanism (sort of) built into the treaty. For the United States, that means that the responsibility of enforcing the Geneva Conventions is on the population; I’m outraged over torture and lack of responsibility for those who did it, but the solution for that is to raise popular awareness and use that to pressure the population.

But that does raise the question of what to do when another country violates human rights; clearly citizens of Georgia cannot mobilize politically and change the internal dynamics of Russia. In this case, the recourse for Georgia is little – it can try to follow the instructions given. But generally, there’s still a lot of resistance to that.

But generally speaking, this is where the realists are right: reciprocal arguments regarding enforcement of, say, economic treaties are not as strong regarding human rights.It shows how important it is to prevent these sorts of international incidents; once they happen, recourses are hard to come by.