This article has been written by Mr. Omkar Tamhane, a first-year student at Maharashtra National Law University, Mumbai.   

ABSTRACT

This abstract examines the importance of non-discrimination as a fundamental principle in contemporary international law, with a focus on the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The introduction emphasizes the importance of equality in the social, political, and economic sectors, as well as global efforts to eliminate prejudice based on race.

This article explores the particular Georgia v. Russia case, which highlighted the use of ICERD. Allegations of racial discrimination and ethnic cleansing against ethnic Georgians in South Ossetia and Abkhazia centered the case. Russia’s compliance under the ICERD was to be investigated by the International Court of Justice (ICJ). Notwithstanding, the lawsuit encountered challenges such as Russia’s concerns to the ICERD’s interpretation and procedural requirements.

The analysis looks at the points made by both side as well as the observations made by the ICJ on the absence of negotiations and compliance with ICERD guidelines prior to the initiation of legal action. After considering the Court’s exclusive interpretation of the discussions, Georgia’s application is denied because it does not comply with Article 22’s conditions.

KEYWORDS: Application of ICERD, Non-discrimination, State responsibility, Racial Discrimination, International Law, Universal Declaration of Human Rights.

INTRODUCTION

In a contemporary world, like the on we live in the modern age, is a very unique and may be described to be quintessential in its very crude nature. One of the very fundamental principles which is invoked in such a utopian society is that of equality. This not only means equality in the eyes of law but also equality in all spheres of life like social, political, economic, etc. One must be entitled to equality in all aspects of being which will sequentially would facilitate a peaceful co-existence amongst all. It is hence critical that to ensure equality, the concept of inequality on any basis must be eradicated without any speck of doubt. 

Equality forms a basic foundation on which the state or rather the community of people relies on for its orderly functioning. Let us understand this an easy reference to the Indian Constitution. The state enforces the principle of equality with its legal implementation via the constitution. The legal spectrum of the country also has clear provisions to ensure equality, especially by establishing procedure to tackle cases of discrimination which violate this postulate of equality. Hence to ensure the similar on the global level, international law includes a certain set of provisions as well. 

One prominent drawback to the establish equality is discrimination on the basis of race, which has become more common with the upcoming globally connected world. The international community decided that the issue must resolved with utmost importance. In furtherance to the same, the International Convention on the Elimination of All Forms of Racial Discrimination (herein after referred to as ‘the convention’ or ‘ICERD’). The convention also has a very fascinating background as stated in the upcoming writing. 

The elimination of racial discrimination is fundamental and deeply rooted in international law. It has been acknowledged as possessing the special nature of jus cogens (Latin phrase for compelling law), which imposes obligations erga omnes (Latin phrase for towards all). The ICERD was brought in a time frame where everyone was brimming with hope at the establishment of an international institution and sighing in relief at the conclusion of a calamity of the WWII. The United Nations sought to instil a sense of reassurance to all these upcoming nations, especially which had gained independence from colonizers in recent times. 

Another cause for the convention, is the international demand for a legal framework to ensure the esse of customary law against racial discrimination. This is voiced as a collective agenda from the newly associated members of the African continent. It is was rightly held strongly and a sense of oneness could be felt. These nations had suffered very humungous acts of discrimination like those of apartheid and hence wanted to uproot the racial discrimination apparatus in its entirety. 

Article 1 of the Charter of the United Nation elaborates on the principle of non-discrimination. Section 2 of the article aims to promote principle of equal rights which as a result would strengthen universal peace. Section 3 of the article also is intricate in understanding the principle of non-discrimination. The clause makes it very evident that the UN would support everyone’s freedom and fundamental rights, regardless of race, sex, language, or any other factor.

The Universal Declaration of Human Rights also within itself enshrines the principle of egalitarianism. The Article 2 of the declaration states as follows: 

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.” 

It is very plain that the intent of drafting this provision was to dissuade any practices of discrimination. It is also very eminent that the drafters also kept in mind the various basis which were widespread at the time while also granting a scope of basis which may later be needed to added in this list of bases of discrimination. 

Even with availability of such various lucrative provisions mentioned as above for eradicating discriminatory practices, there are still many problems which are intertwined with these frameworks, especially with their application as is the topic for this piece. 

ANALYSIS

The concerned case of Georgia versus Russia, gave rise to the issue of application of the ICERD. The case was instituted as stated further. The State of Georgia had claimed that the Russian Federation had violated its obligations under the ICERD. These allegations were based on the supposed ethnic cleansing and racial discrimination against ethnic Georgians in regions of South Ossetia and Abkhazia. Each party to the convention has an obligation to not discriminate against persons based on race and to ensure that public authorities and institutions are acting in conformity with this obligation. 

As long as both governments have acknowledged the ICJ’s jurisdiction, a state may file a complaint against another state if it believes that it has infringed on a CERD specification. The International Court of Justice (ICJ) is tasked with deciding whether the convention has been violated and, if so, what legal ramifications result from that break, such as any need to stop the violations and make reparations.

Georgia filed this application on August 12, 2008. After its filing, on the day of hearing some objections were raised by the Russian Federation. The Russian Federation firstly argued that there existed no inconsistencies in the interpretation of the International Convention on the Elimination of All Forms of Racial Discrimination, with reference to the that of State of Georgia’s. The second and rather important argument presented was that the State of Georgia had not met the ICERD preconditions for the intervention of the International Court of Justice. It explained that The State of Georgia had failed to negotiate or resort to the ICERD procedures before instituting the above-stated proceedings. 

In continuance of the second arguments, the court also made a keen observation. Both the parties to this case had accused each other of ethnic cleansing during an emergency session of the United Nations Security Council on the 10th of August, 2008. Both the parties then subsequently did not make any attempts at negotiations pertaining to the subject matter as explicitly laid down as the procedure in ICERD. 

It is also important to note that for a legal practitioner, it is with keen interest that they must observe all the meaning or rather interpretations the court has of various constituting elements in the case. Similarly in this case, it is important to understand how the court interpretated negotiations. When establishing what constitutes negotiations, the Court noted that they differ from simple protests or disagreements. This is an example of exclusive interpretation, meaning that the definition identifies what does not institute a given legal concept. 

The Court noted that negotiations between Georgia and the Russian Federation had taken place prior to the outset of the relevant dispute. However, in the absence of a dispute pertaining to subjects falling under CERD prior to 9 August 2008, those negotiations could not be considered to have covered such matters, and so were irrelevant to the Court’s consideration of the Russian Federation’s second preliminary objection. As a result, the Court determined that none of Article 22’s requirements had been met. Article 22 of the CERD could thus not be used to establish the Court’s jurisdiction in this instance. The Russian Federation’s second preliminary objection was therefore upheld without any resistance. 

After upholding the Russian Federation’s second preliminary objection, the Court determined that it was not compelled to consider or rule on the other arguments to its jurisdiction presented by the respondent, and therefore the matter could not advance to the merits phase.

The above issue gives rise to the state responsibility under International Law. To prove state responsibility, it must be demonstrated that the state violated its international duties under the CERD, and that the breach was caused by the state. The repercussions of a state’s responsibility for racial discrimination may include the end of the wrongful act, the establishment of guarantees against repetition, and the payment of reparations for any harm caused.

CONCLUSION

From the above discussion, a clear inference can be drawn from that non-discrimination forms an integral and indivisible fragment which constitutes the rules which govern the International Law since its inception. The International Convention on Eradication of all forms of Racial Discrimination, adopted in 1965 and enforced in 1969, is a prime instrument for tackling any discriminatory practices and to promote equality universally. 

One must also keep in mind the repercussions that the convention puts upon the states, which are found to be in contravention to its provisions. It is crucial to highlight that these principles of state responsibility may differ depending on the individual national laws and international legal frameworks in place in each country.

Hence, as presented in this elaborate study Racial Non-Discrimination forms an important component under the International Law. It is must be intently observed that the above study provides an overview but an able researcher is advised to further construct upon this article in order to obtain a deeper perspective in the concerned context. 

REFERENCES:

1. https://icj-cij.org/case/140
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3. https://legal.un.org/avl/ha/cerd/cerd.html
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