Tuesday, February 10, 2009

Establishing ICJ Jurisdiction in a CERD Case

Not to belabour the topic, but another issue extremely pertinent to International Law was raised in the recent International Court of Justice's Ruling on the Georgia-Russia Dispute. As treated by this article, there's considerable disagreement over the pleading requirement for a Party seeking provisional ICJ relief for an alleged violation of the UN Convention on the Elimination of All Forms of Racial Discrimination. The question, most basically expressed, asks:

If you're Country A, seeking to pressure Country B into changing behaviours you allege violative of CERD commitments, what does the ICJ require you bring to the table to justify its dedication of judicial resources to your claim? At least, what's the threshold at the very start of litigation, where you seek only a decision on "provisional measures"--the sort of non-definitive, cursory relief aimed at stabilising a situation.

Of course, the ICJ would be backlogged into impotence if every petition--no matter how frivolous--triggered consideration. But at the same time, the provisional measure exists precisely as a way to give some notice to potentially meritorious claims while refraining from allocating more time and energy, until sufficient facts surface to warrant it.

As the article demonstrates, varying answers in precedent and yet another unclear one in Georgia v. Russia leave the matter relatively unresolved. To my eyes, this seemingly haphazard, ad hoc approach is precisely that--ad hoc. Chances are, the Court begins its analysis at the result it wishes to reach, and creates a rationale adequate to effect that end. And this is rather unsettling. Doubtless, ICJ Justices' awareness of global issues makes their subjective opinions on a claim's import not altogether arbitrary. But at the same time, how much of their awareness ultimately answers to their subjective sociopolitical leanings, opinions--even the media they consume or have available? Could a claim by East Timor against Indonesia ever confront the Court on equal footing as by the US against Iran? Could an allegation of improper discriminatory use of force by France in Algeria ever create as much a presumption of validity as by Serbia in Kosovo?

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