The Framework and Scope of the Jurisdiction of the International Court of Justice in Cases Arising from the Convention on the Elimination of Racial Discrimination, in the light of the Court's Jurisprudence



The Convention on the Elimination of All Forms of Racial Discrimination is one of the few human rights treaties that has a mandatory jurisdiction clause for the International Court of Justice. The Court has heard claims arising from this Convention in six cases and has assessed aspects of its ability to exercise jurisdiction in each case. Among the six related cases, the first was the Congo v. Rwanda case, which the Court declared in 2006 to lack jurisdiction. In 2011, the Georgia v. Russia case suffered a similar fate. In 2011, the Court declared that it had jurisdiction to hear the Ukraine v. Russia case, but in the 2024 substantive judgment it upheld a portion of the claimant state's claims. In 2021, the Qatar v. UAE case was also closed with a ruling that the Court lacked jurisdiction. Later, the Committee on Racial Discrimination declared that it had jurisdiction to hear the dispute between the two countries. Finally, in 2024, two claims by Armenia v. Azerbaijan and Azerbaijan v. Armenia led to the Court declaring jurisdiction, and these two cases are currently being heard on the merits.

The present article attempts to explain the jurisdictional framework of the Court, both in terms of the prerequisite for exercising jurisdiction and in terms of the scope of jurisdiction arising from the Convention on the Elimination of Racial Discrimination, based on the Court's case law, using a descriptive-analytical approach. Since, given the specific situation of this Convention as described above, it is possible to file new lawsuits based on the Convention; the present analysis can provide an understanding of predicting the results of such lawsuits.

As a result of the research, it can be said that the mandatory jurisdiction of the International Court of Justice contained in the Convention on the Elimination of Racial Discrimination has provided a favorable environment for some states to present disputes and claims of violations of this treaty to the Court. However, the limitation resulting from the consent of the Court's jurisdiction has also caused states to sometimes formulate other disputes, such as armed conflicts or border disputes, in this format. The Court has also adopted a precise and narrow approach in interpreting the aforementioned clause, firstly introducing negotiation or referral to the Committee as a prerequisite for exercising its jurisdiction, and secondly, the principle of adversarial status governs the assessment of the Court’s jurisdiction – both in terms of the right of States to submit claims and in terms of temporal jurisdiction.

In the substantive dimension and the effect of the nature of the dispute on jurisdiction, the Court, by distinguishing between the different aspects of each dispute, has noted that in each case, regardless of the nature and other aspects of the dispute, it must establish that the alleged acts violated the Convention; that is, they led to racial discrimination. The Court has not considered even the mere violation of the human rights of minorities or ethnic and racial groups sufficient to establish a violation of the Convention, and is of the opinion that this violation must necessarily be based on the element of “discrimination” on the basis of a ground prohibited in the Convention (race, colour, ethnicity or national origin). The Court also considers claims related to the protection of nationals and claims arising from the distinction between nationals and aliens to be outside the scope of the Convention.

Despite this practice, the Court has not yet faced a challenge to the identification of a group as an ethnic group, and in all cases, the ethnic or racial nature of the groups in question has not been disputed. As a result, the Court has not yet adopted a definitive approach to the criteria for identifying ethnic and racial groups, but overall it supports the self-identification approach.

Therefore, the Court’s practice shows that it has taken a narrow approach to the jurisdictional requirement contained in the Convention and has exercised exemplary care in interpreting the substantive framework of the Convention in order to determine the scope of its jurisdiction. Therefore, in addition to establishing the existence of a dispute and explaining the framework of the dispute and its relationship to the Convention, the Court has rigorously explained the prerequisite for exercising its jurisdiction, as well as the substantive framework of the Convention, which is limited to the field of racial discrimination.

It is expected that other cases based on this Convention will continue to be brought before the Court in the future; However, the Court's specific approach to assessing the jurisdiction and scope of its judicial function could prevent more lawsuits from being filed with political motives outside the basic framework of the Convention - namely, accelerating the abolition of racial discrimination.