Today I attended the public sitting at the ICJ where the Court read its decision on provisional measures in the Georgia v. Russia case. I'd been anticipating this day, as I think it is quite interesting and I have been spending a lot of time researching the matter.
Although the Georgia v. Russia conflict is complicated and has many facets, the actual case was somewhat specific. Courts first and foremost need jurisdiction to hear the case. The incriminating evidence can be staring in the judge's face, but he won't be able to do anything about it if he does not have jurisdiction over the person and the subject matter. Georgia brought the case under Article 22 of the Convention on the Elimination of Racial Discrimination, which basically allows ICJ referrals in cases of disputes over the meaning/scope/interpretation of the convention if negotiations do not solve the issue. Georgia used CERD as a way to get ICJ jurisdiction; the convention itself is not actually the most relevant/applicable instrument to the conflict.
Russia of course contested this with various rather technical arguments. For instance, Article 22 has language that seems to say 'negotiation first, and if that fails, then ICJ referral'; Russia contended that Georgia never even attempted negotiations over CERD, and thus failed to meet a pre-condition of Article 22. In my opinion, from a legal standpoint, Russia had strong arguments. But of course international sympathy is with Georgia, and the ICJ has a strong history of issuing provisional measures in conflict cases like this one. It was interesting to consider what the Court would do.
Well today the Court handed down its order. It found that it had prima facie (basically 'on its first appreance') jurisdiction under CERD. It was not convinced by Russia's arguments otherwise. It also found that there was risk of irreparable harm and urgency in the matter (the other two requirements for PMs), which is not surprising considering the risk of physical harm and displacement of Georgians, South Ossetians, Abkhazians, etc.
The vote was very close, 8-7, split down what looked like how much of world issues get split: USA, UK, New Zealand, France, Germany, Japan, etc on one side, and China, Russia, and developing countries on the other.
The order was addressed to both countries, which was not what Georgia requested of course, but I think this was just to try to appease to everybody. The provisional measures that were ultimately granted were basically that both sides must refrain from and prevent to the extent possible any actions that would violate international law. Of course there were more details, but that was the gist.
I couldn't help but feel like a high school model UN club could have come up with this solution. Of course, it's the most PC and most balanced outcome, but yes of course both sides must not violate international law. There weren't any specifics, and I can see this measure being wide open to future litigation over its interpretation and application.
The International Court of Justice really just ended up looking to me like an arbitrator/moderator. I don't know what I was expecting, but I came away with a sense of weakness in international law. I guess it was meaningful that ICJ found that it had jurisdiction-- an outcome that potentially has much greater implications for future cases rather than the current case. And as another person noted, the fact that two countries at war have a legal outlet to bring their case to is a pretty amazing modern situation in itself.
