## Facts

- In August 2008, armed conflict occurred in and around South Ossetia and Abkhazia, regions of Georgia.
- Georgia instituted proceedings against the Russian Federation alleging violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), including Articles 2, 3, 4, 5, and 6.
- Georgia alleged that Russia, through state organs and agents and through separatist forces acting under Russian direction or control, engaged in and supported racial discrimination against ethnic Georgians, including attacks, mass displacement/expulsion, and obstruction of return.
- Georgia asserted that the alleged conduct aimed to change the ethnic composition of South Ossetia and Abkhazia by preventing displaced ethnic Georgians from returning.
- Georgia invoked Article 22 of CERD as the jurisdictional basis, which permits referral to the ICJ for disputes not settled by negotiation or CERD procedures.
- Georgia filed a request, later amended, for the indication of provisional measures to protect CERD rights in light of rapidly changing conditions.
- The ICJ held hearings in September 2008 and issued an order on provisional measures on October 15, 2008.

## Issues

1. Whether the ICJ had prima facie jurisdiction under Article 22 of CERD to indicate provisional measures, including whether a CERD dispute existed and whether Article 22’s procedural preconditions were plausibly met.
2. Whether the rights asserted by Georgia were plausibly protected by CERD and sufficiently linked to the Convention’s obligations.
3. Whether there was urgency and a risk of irreparable prejudice to CERD rights warranting provisional measures.
4. What provisional measures were appropriate, including whether measures should bind both parties and include a non-aggravation obligation.

## Decision

- The ICJ found it had prima facie jurisdiction under Article 22 of CERD for the limited purpose of indicating provisional measures.
- The Court indicated binding provisional measures applicable to both Georgia and Russia within South Ossetia and Abkhazia and adjacent areas in Georgia.
- The Court ordered each party to refrain from acts of racial discrimination and to abstain from sponsoring, defending, or supporting racial discrimination by any persons or organizations.
- The Court ordered each party to do all in its power, without distinction as to national or ethnic origin, to ensure security of persons, freedom of movement and residence, and protection of the property of displaced persons and refugees.
- The Court ordered each party to do all in its power to ensure that public authorities and institutions under its control or influence do not engage in racial discrimination.
- The Court ordered each party to refrain from actions that might prejudice the other party’s rights pending judgment, aggravate or extend the dispute, or make it more difficult to resolve.

## Legal Principles

- At the provisional-measures stage, the ICJ may act when jurisdiction appears plausible (prima facie) under a compromissory clause, without finally deciding jurisdiction.
- A “dispute” exists for prima facie purposes when one party alleges violations of a treaty and the other contests the allegations and/or treaty characterization.
- Provisional measures require that the rights asserted be plausible and connected to the treaty invoked, and that there be urgency and a risk of irreparable prejudice to those rights.
- CERD obligations plausibly implicated by alleged ethnically targeted violence, displacement, property destruction, and obstruction of return include duties to refrain from racial discrimination, not to support discriminatory conduct, and to secure equal enjoyment of protected rights without distinction as to national or ethnic origin.
- The ICJ may impose reciprocal measures on both parties where necessary to prevent discriminatory conduct and preserve the integrity of proceedings, including an order not to aggravate or extend the dispute.

## Conclusion

The ICJ held that it had prima facie jurisdiction under CERD’s Article 22 and, due to urgency and the risk of irreparable harm to non-discrimination rights, ordered both Georgia and Russia to refrain from racial discrimination, prevent and not support discriminatory conduct, protect security, movement, and property rights without ethnic distinction, and avoid aggravating the dispute pending the Court’s final determination.


Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georg. v. Russ. Fed’n), 2008 I.C.J. 353 (Oct. 15)