American Journal of International Law, Vol. 105, 2011
13 Pages Posted: 12 Jul 2011 Last revised: 18 Aug 2015
Date Written: 2011
This article analyzes the International Court of Justice Judgment on preliminary objections to jurisdiction in the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, a contentious case between Georgia and the Russian Federation. Having ordered provisional measures against both Parties, the Court held that it did not have jurisdiction over the merits based on a pre-condition that the claimant party could have easily remedied. The Court’s reasoning can be better understood based on a fundamental analysis of its power and function.
Under international law, jurisdiction is an institution’s power to make or apply law regarding a particular issue and party. In this case, the differing interpretations on the Court — whether certain documents evidenced a dispute between the Parties and an attempt to negotiate the dispute — reflected an underlying disagreement regarding the Court’s power to have any control over the dispute and the Court’s function in the international community. Instead of a distinction between formalistic and realistic methodological approaches, these two factors — the Court’s power and function — appear to divide the majority and the dissent. Otherwise, the jurisdictional deficiency of a lack of negotiations could have been cured easily and the proceedings resumed. The fact that Georgia has not refiled its Application at the time of this writing (over two months after the Court’s Judgment) suggests that this technical requirement was not the real obstacle to the Court’s adjudication of this dispute nor to the Court’s decision.
Suggested Citation: Suggested Citation
Szewczyk, Bart M.J., Georgia v. Russian Federation (2011). American Journal of International Law, Vol. 105, 2011. Available at SSRN: https://ssrn.com/abstract=1883851