Keeping Good Faith in Diplomacy: Negotiations and Jurisdiction in the ICJ's Application of the CERD

Abstract

The International Court of Justice (ICJ) refused jurisdiction in Georgia’s suit against Russia under the Convention on Elimination of All Forms of Racial Discrimination, finding that the treaty’s jurisdictional clause, which limits jurisdiction to unsettled disputes, did not apply in the absence of good-faith negotiation. The court reversed its provisional measures order, which entertained jurisdiction, and continued a line of cases holding that clauses like the treaty’s jurisdictional clause serve mainly to give the parties notice of the dispute. The ICJ’s ruling noted that these clauses also reflect limits on parties’ consent to jurisdiction and a general preference for negotiated solutions. This suggests that the court will scrutinize attempted diplomacy more in the future to ensure good-faith conduct. Yet the court refused to overturn precedents permitting use of open forums such as the UN and finding negotiations where the specific treaty obligations are not identified, making good faith harder to ensure. The ICJ’s adherence to a more flexible standard thus still provides a way for complainants to satisfy jurisdictional thresholds without fully engaging respondents beforehand.