Non Corrigé
Uncorrected
CR 2010/9
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2010
Public sitting
held on Tuesday 14 September 2010, at 10 a.m., at the Peace Palace,
President Owada presiding,
in the case concerning Application of the International Convention on
the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation)
________________
VERBATIM RECORD
________________
ANNÉE 2010
Audience publique
tenue le mardi 14 septembre 2010, à 10 heures, au Palais de la Paix,
sous la présidence de M. Owada, président,
en l’affaire relative à l’Application de la convention internationale
sur l’élimination de toutes les formes de discrimination raciale
(Géorgie c. Fédération de Russie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presiewtada
Vice-Presdenkta
Judges Koroma
Al-Khasawneh
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Judge ad hoc Gaja
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : M. Owada,président
viceMpra,ident
KoMroMa.
Al-Khasawneh
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Crinçade
Yusuf
Greenwood
XuMe mes
Dojnogshue,
jugeGaja,. ad hoc
Cgoffrerr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Georgia is represented by:
Ms Tina Burjaliani, First Deputy-Minister of Justice,
H.E. Mr. Shota Gvineria, Ambassador of Georgia to the Kingdom of the Netherlands,
a s Agents;
Mr. Payam Akhavan, LL.M., S.J.D. (Harvard), Pr ofessor of International Law, McGill University,
Member of the Bar of New York,
as Co-Agent and Advocate;
Mr.James R.Crawford, S.C., LL.D., F.B.A., Whew ell Professor of International Law, University
of Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers,
Mr.PhilippeSands, Q.C., Professor of Law, University College London, Barrister, Matrix
Chambers,
Mr. Paul S. Reichler, Foley Hoag LLP, Washington D.C., Member of the Bars of the United States
Supreme Court and the District of Columbia,
as Advocates;
Ms Nino Kalandadze, Deputy Minister of Foreign Affairs,
Mr. Giorgi Mikeladze, Consul, Embassy of Georgia in the Kingdom of the Netherlands,
Ms Khatuna Salukvadze, Head of the Political Department, Ministry of Foreign Affairs,
Ms Nino Tsereteli, Deputy Head of the Department of State Representation to International Human
Rights Courts, Ministry of Justice,
Mr.ZacharyDouglas, Barrister, Matrix Chambers, Lecturer, Faculty of Law, University of
Cambridge,
Mr.AndrewB.Loewenstein, Foley Hoag LLP, Member of the Bar of the Commonwealth of
Massachusetts,
Ms Clara E. Brillembourg, Foley Hoag LLP, Member of the Bars of the District of Columbia and
New York,
MsAmy Senier, Foley Hoag LLP, Member of th e Bars of the Commonwealth of Massachusetts
and New York,
as Advisers. - 5 -
Le Gouvernement de Géorgie est représenté par :
Mme Tina Burjaliani, premier vice-ministre de la justice,
S. Exc. M. Shota Gvineria, ambassadeur de Géorgie auprès du Royaume des Pays-Bas,
comme agents ;
M.PayamAkhavan, LL.M., S.J.D. (Harvard), pr ofesseur de droit international à l’Université
McGill, membre du barreau de New York,
comme coagent et avocat;
M.James R.Crawford, S.C., LL.D., F.B.A., professeur de droit international à l’Université de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
Matrix Chambers,
M.PhilippeSands, Q.C., professeur de droit au University College de Londres, avocat, Matrix
Chambers,
M. Paul S. Reichler, cabinet Foley Hoag LLP, W ashington D.C., membre des barreaux de la Cour
suprême des Etats-Unis d’Amérique et du district de Columbia,
comme avocats ;
Mme Nino Kalandadze, vice-ministre des affaires étrangères,
M. Giorgi Mikeladze, consul à l’ambassade de Géorgie aux Pays-Bas,
MmeKhatuna Salukvadze, chef du département des affaires politiques au ministère des affaires
étrangères,
MmeNino Tsereteli, chef adjoint chargé de la représentation de l’Etat auprès des juridictions
internationales des droits de l’homme au ministère de la justice,
M. Zachary Douglas, avocat, Matrix Chambers, chargé de cours à la faculté de droit de l’Université
de Cambridge,
M.Andrew B.Loewenstein, cabinet Foley Ho ag LLP, membre du barreau du Commonwealth du
Massachusetts,
MmeClara E.Brillembourg, cabinet Foley Hoag LLP, membre des barreaux du district de
Columbia et de New York,
MmeAmySenier, cabinet Foley Hoag LLP, membre des barreaux du Commonwealth du
Massachusetts et de New York,
comme conseillers. - 6 -
The Government of the Russian Federation is represented by:
H.E. Mr. Kirill Gevorgian, Director, Legal Departme nt, Ministry of Foreign Affairs of the Russian
Federation,
H.E.Mr.Roman Kolodkin, Ambassador of the Russian Federation to the Kingdom of the
Netherlands,
as Agents;
Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre-La Défense, member and former
Chairman of the International Law Commission, associate member of the Institut de droit
international,
Mr. Andreas Zimmermann, Dr. jur. (Heidelberg), LL.M. (Harvard), Professor of International Law
at the University of Potsdam, Director of the Postdam Center of Human Rights, Member of the
Permanent Court of Arbitration,
Mr.Samuel Wordsworth, member of the English Bar, member of the Paris Bar, Essex Court
Chambers,
as Counsel and Advocates;
Mr. Evgeny Raschevsky, Egorov Puginsky Afanasiev & Partners,
Mr. M. Kulakhmetov, Adviser to the Minister of Foreign Affairs of the Russian Federation,
Mr. V. Korchmar, Principal Counsellor, Fourth CIS Department, Ministry of Foreign Affairs of the
Russian Federation,
Mr.GrigoryLukyantsev, Senior Counsellor, Permanent Mission of the Russian Federation to the
United Nations, New York,
Mr.IvanVolodin, Acting Head of Section, Legal Department, Ministry of Foreign Affairs of the
Russian Federation,
Mr.MaximMusikhin, Counsellor, Embassy of the Russian Federation in the Kingdom of the
Netherlands,
MsDianaTaratukhina, Third Secretary, Perman ent Mission of the Russian Federation to the
United Nations, New York,
Mr.ArsenDaduani, Third Secretary, Embassy of the Russian Federation in the Kingdom of the
Netherlands,
Mr. Sergey Leonidchenko, Attaché, Legal Department, Ministry of Foreign Affairs of the Russian
Federation,
MsSvetlanaShatalova, Attaché, Embassy of the Russian Federation in the United States of
America,
Ms Daria Golubkova, expert, Ministry of Foreign Affairs of the Russian Federation,
Mr. M. Tkhostov, Deputy Chief of Administration, Government of North Ossetia-Alania, - 7 -
Le Gouvernement de la Fédération de Russie est représenté par :
S.Exc.M.KirillGevorgian, directeur du département des affaires juridiques du ministère des
affaires étrangères de la Fédération de Russie,
S. Exc. M. Roman Kolodkin, ambassadeur de la Fédération de Russie auprès du Royaume des
Pays-Bas,
comma egents ;
M. Alain Pellet, professeur à l’Université de Pari s Ouest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,
M.Andreas Zimmermann, docteur en droit (Université de Heidelberg), LL.M. (Harvard),
professeur de droit international à l’Université de Potsdam, directeur du centre des droits de
l’homme de Potsdam, membre de laCour permanente d’arbitrage,
M. Samuel Wordsworth, membre des barreaux d’Angleterre et de Paris, Essex Court Chambers,
comme conseils et avocats ;
M. Evgeny Raschevsky, cabinet Egorov Puginsky Afanasiev & Partners,
M. M. Kulakhmetov, conseiller du ministre des affaires étrangères de la Fédération de Russie,
M.V.Korchmar, conseiller principal au qu atrième département de la Communauté d’Etats
indépendants du ministère des affaires étrangères de la Fédération de Russie,
M.GrigoryLukyantsev, conseiller principal à la mission permanente de la Fédération de Russie
auprès de l’Organisation des Nations Unies à New York,
M.IvanVolodin, chef de division par intérim du département des affaires juridiques du ministère
des affaires étrangères de la Fédération de Russie,
M. Maxim Musikhin, conseiller à l’ambassade de la Fédération de Russie aux Pays-Bas,
MmeDianaTaratukhina, troisième secrétaire à la mission permanente de la Fédération de Russie
auprès de l’Organisation des Nations Unies à New York,
M. Arsen Daduani, troisième secrétaire à l’ambassade de la Fédération de Russie aux Pays-Bas,
M.SergeyLeonidchenko, attaché au département des affaires juridiques du ministère des affaires
étrangères de la Fédération de Russie,
MmeSvetlanaShatalova, attaché à l’ambassade de la Fédération de Russie aux Etats-Unis
d’Amérique,
Mme Daria Golubkova, expert au ministère des affaires étrangères de la Fédération de Russie,
M. M. Tkhostov, chef adjoint de l’administration, gouvernement d’Ossétie du Nord-Alanie, - 8 -
Ms Amy Sander, member of the English Bar,
Mr.Christian Tams, LL.M., PhD. (Cambridge), Pr ofessor of International Law, University of
Glasgow,
MsAlina Miron, Researcher, Centre for International Law (CEDIN), University Paris Ouest,
Nanterre-La Défense,
Ms Elena Krotova, Egorov Puginsky Afanasiev & Partners,
Ms Anna Shumilova, Egorov Puginsky Afanasiev & Partners,
Mr. Sergey Usoskin, Egorov Puginsky Afanasiev & Partners,
as Advisers. - 9 -
Mme Amy Sander, membre du barreau d’Angleterre,
M.ChristianTams, LL.M., docteur en droit (U niversité de Cambridge), professeur de droit
international à l’Université de Glasgow,
Mme Alina Miron, chercheur au Centre de droit international de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,
Mme Elena Krotova, cabinet Egorov Puginsky Afanasiev & Partners,
Mme Anna Shumilova, cabinet Egorov Puginsky Afanasiev & Partners,
M. Sergey Usoskin, cabinet Egorov Puginsky Afanasiev & Partners,
commc eonseillers. - 10 -
The PRESIDENT: Please be seated. The sitting is now open. This morning, the Court will
hear the first round of oral argument of Georgia. I give the floor first to Ms Tina Burjaliani, Agent
of Georgia.
1. MsBURJALIANI: Mr.President, distinguished Members of the Court, as first
Deputy-Minister of Justice, it is a great honour for me to appear before the International Court of
Justice as the Agent of the Government of Georgia.
2. My Government initiated the present case under the International Convention on the
Elimination of All Forms of Racial Discriminati on in August 2008. Given the discrimination and
expulsions that had occurred since 1991, it has to act to prevent further discrimination in the
context of continued ethnic violence, persecution and the displacement of thousands of ethnic
Georgians for which the respondent State has r esponsibility. Russia has pursued the policy of
ethnic discrimination over nearly two decades beginning in 1991. Since then, ethnic Georgians
have been persecuted and many of them forc ibly expelled from the regions of Abkhazia and
South Ossetia: the respondent State and the for ces under its control and authority have contributed
to these acts and failed to prevent their continuance.
3. Mr. President, Members of the Court, it may be said that Georgia has a number of political
and legal disputes with Russia on different issues. However, these include but are not limited to
the illegal use of force and the continued occupation. However, the dispute before this Court is not
about those issues: it is about the ethnic discr imination committed both in and outside the armed
conflicts. In 2001, 2005 and 2 007, the Committee on Racial Discrimination expressly recognized
that ethnic discrimination is a central aspect of the conflicts in Abkhazia and South Ossetia 1.
4. In bringing the present case to the International Court of Justice, Georgia has no other
purpose but to prevent discrimination and to allow right of return. In so doing, it invokes the rights
and obligations of the 1965 Convention ⎯ the first universal human rights treaty that reflects a
1United Nations Committee on the Elimination of Racial Discrimination, Concluding Observations of the
Committee on the Elimination of Racial Di scrimination: Georgia, UNdoc. CERD/C/304/Add. 120 (27Apr. 2001),
para. 4; WSG, Vol. III, Ann. 66; UN Committ ee on the Elimination of Racial Discrimination, Concluding Observations
of the Committee on the Elimination of Racial Discrimination: Georgia UNdoc. CERD/C/GEO/CO/3, (1Nov. 2005),
para.5; United Nations Committee on the Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Georgia , UN doc. CERD/C/GEO/CO/3 (27 Mar. 2007), para. 5;
WSG, Vol. III, Ann. 86. - 11 -
deliberate priority of the international commun ity to suppress racial discrimination, including
racially motivated violence. The 1965 Convention prohibits ethnic discrimination and it recognizes
a right of return. It relates not only to discrimin ation against individuals but also to discrimination
against entire communities. It encompasses edu cational and linguistic matters and withholding of
nationality ⎯ these are all practices that are widely applied by the respondent State in the Georgian
territories of Abkhazia and South Ossetia. Due to the policy of the respondent State, almost
10 per cent of the Georgian population is now living in exile in their own country.
5. Some 40,000 ethnic Georgians in the Gali di strict of Abkhazia have survived at least
twowaves of ethnic cleansing. Now they are subject to discriminatory measures imposed and
implemented by the Russian and Abkhaz authoriti es, with the aim of forcing them either to
abandon their Georgian nationality and citizenship or leave Abkhazia altogether. The increased
Russian military presence in Gali since 2008, and Ru ssian control of the administrative boundary
line with the rest of Georgia has made the situ ation for ethnic Georgians in Abkhazia increasingly
2
precarious. This was confirmed by the OSCE in November 2008 . The prohibition of education in
the mother tongue, compulsory “passportization”, forced conscription into the Abkhaz military
forces, and restrictions of freedom of movement have all limited the ability of ethnic Georgians in
Gali to preserve their ident ity, language and culture ⎯ so reported the OSCE High Commissioner
3
on Nationalities in January 2009 . These acts make it impossible for displaced persons to
contemplate a return.
6. The situation is no better in the Akhal gori district, which was under the control of the
Government of Georgia before August 2008. Akhalgori has always had a majority ethnic Georgian
population. As a result of ethnic cleansing, since 2008, the ethnic Georgian population of more
than 7,000 in Akhalgori has been reduced to less than 1,000. This population is subject to ongoing
acts of ethnic discrimination, including violent a ttacks against their persons, destruction of their
property, denial and restriction of their civil and political rights and other abuses 4. In April 2009,
2
OSCE, Human Rights in the War-Affected Areas (2008), p. 7; MG, Vol. II, Ann. 71.
3Statement of Knut Vollebaek, OSCE High Commissioner on National Minorities to the 765th. Plenary Meeting
of the OSCE Permanent Council (18 June 2009), p. 4; MG, Vo l. II, Ann.73. See also Letter from the OSCE High
Commissioner on Minorities, Knut Vollebaek, to the OSCE Chai rman, Minister Alexander Stubb (27 Nov. 2008), p. 2;
MG, Vol. V, Ann. 312.
4International Crisis Group, Georgia: The Risks of Winter (26 November 2008), p. 5; MG, Vol. III, Ann. 164. - 12 -
the Council of Europe found that there was extensiv e evidence of systematic looting, pillaging,
hostage taking and attacks on ethnic Georgians by South Ossetian militias with Russian forces
present and doing nothing ⎯ and I emphasize the word nothing ⎯ to prevent ethnic
5
discrimination .
7. The conditions of the Georgian population in Gali and Akhalgori have been worsened by
the restrictions on freedom of movement over th e administrative boundary lines. Russia’s military
presence and control over the territories has s ubstantially increased since the Decision on
Provisional Measures of 15October2008; according to the International Crisis Group “Russia is
6
open about its overw helming control” . The European Union’s Independent International
Fact-Finding Mission on the Conflict in Georgia in its 2009 Report concludes that the Russian
control over South Ossetia has been “decisive”, “systematic, and exercised on a permanent basis” 7.
8. In September 2009, the Council of Europe passed a resolution calling on “Russia and the
de facto authorities of South Ossetia and Abkhazia to fully and unconditionally ensure the right of
8
return of internally displaced persons” . This has been totally ignored by Russia.
9. Russia has repeatedly ignored the right of return. It asserts that ethnic Georgian IDPs “can
return only when all conditions for that exist ” 9. This violates the 1965 Convention. This is why
we have brought the case ⎯ to bring to an end years of ethnic discrimination with all its continuing
effects. For Russia to say that there is no dispute with Georgia over these matters is simply
untenable.
10. The United Nations General Assembly has responded to Russia’s continuing refusal to
allow displaced ethnic Georgians to exercise their right of return. In 2009, the General Assembly
5
Council of Europe, Parliamentary Assembly, The implementation of Resolution 1633 (2009) on the
consequences of the war between Georgia and Russia (2009), para. 63; MG, Vol. II, Ann. 60.
6
International Crisis Group, Abkhazia: Deepening Dependence (26February2010), p.16; WSG, Vol.IV,
Ann. 194.
7
Independent International Fact-Finding Mission On the Conflict in Georgia, Report Vol. II (Sept. 2009), p. 132;
WSG, Vol. III, Ann. 121; ibid., pp. 132-133.
8
Council of Europe, Parliamentary Assembly, Resolution 1683, The war between Georgia and Russia: one year
after (29 Sept. 2009), para. 6.2; WSG, Vol. III, Ann. 119.
9“Lavrov: Refugees will return to Abkh azia after legal issues are regulated”, Rosbalt (24 Dec. 2009) (emphasis
added); WSG, Vol. IV, Ann.217; Ministry of Foreign Affairs of the Russian Federation, Transcript of the Statement
and Answers to the Questions of the Mass Media by Sergey Lavrov, Minister of Foreign Affairs of the Russian
Federation, at the Joint Press Conference on the Outcome of the Negotiations with Sergey Shamba, Minister of Foreign
Affairs of Abkhazia, Moscow, 24 Dec. 2009 (24 Dec. 2009), p. 4; WSG, Vol. IV, Ann. 190. - 13 -
called for “the development of a timetable to en sure the voluntary, safe, dignified and unhindered
return of all internally displaced persons and ref ugees affected by the conflicts in Georgia to their
10 11
homes” . Russia rejected the resolution . And still it says there was no dispute. Just last week,
on 7September 2010, another General Assembly resolution recognized, among others, “the right
of return of all internally displaced persons and refugees and their descendants, regardless of
ethnicity, to their homes throughout Georgia, including in Abkhazia and South Ossetia” 12. What
did Russia do? It rejected the resolution.
11. Mr. President, Members of the Court, the present case is a genuine attempt by Georgia to
contribute to the resolution of this long-standing dispute between the two States on ethnic
discrimination, in conformity with international law. Georgia has used political and diplomatic
forums; however, Russia has been irresponsiv e to Georgia’s claims both at bilateral and
multilateral forums. On 12 August 2008, Georgia f iled the Application after nearly two decades of
futile attempts at engaging with Russia, having raised issues arising under the 1965 Convention on
countless occasions in the preceding 17years. The timing of the filing the Application coincided
with the escalation of the events in summer 2008; however, this fact does not make the dispute
about the use of force. Mr. President, the Court would have jurisdiction if the Application had been
filed two months before or later. There was a long-standing dispute with Russia, and it was about
issues that directly relate to matters regul ated under the 1965 Convention: about ethnic
discrimination, about the right of return, about compulsory passportization, about linguistic rights.
12. Mr.President, Members of the Court, the specific reasons why the Preliminary
Objections of the Russian Federation should be rejected will be given by our distinguished counsel.
13. First, Mr.PaulReichler will respond to Russia’s first preliminary objection and
demonstrate that there is a “dispute” between Georgia and Russia under the 1965 Convention;
10United Nations General Assembly, resolution 63/307, Status of internally displaced persons and refugees from
Abkhazia, Georgia, and the Tskhinva li region/South Ossetia, Georgia , UNdoc. A/RES/63/307 (30 Sept. 2009); WSG,
Vol. III, Ann. 102.
11United Nations General Assembly, Rules of Procedure of the General Assembly, Rue4,
UNdoc.A/520/Rev.17(2008). Pursuant to rule 74 of the rules of procedure of the General Assembly, Russia
unsuccessfully moved a no-action motion on the draft resolution.
12United Nations General Assembly, Georgia: draft resolution, Status of internally displaced persons and
refugees from Abkhazia, Georgia, and the Tskhinvali region/South Ossetia, Georgia, UN doc. A/64/L.62 (16 July 2010),
p. 2. - 14 -
14. Second, Professor JamesCrawford will address Russia’s second preliminary objection
and explain the legal requirements of Article 22 of the 1965 Convention;
15. Third, Professor PayamAkhavan will s how that even though Article22 of the
1965 Convention does not require negotiations, Georgia’s efforts to negotiate have been fruitless;
16. Fourth, Professor PhilippeSands will a ddress Russia’s third and fourth preliminary
objections and demonstrate that the 1965Conven tion can be invoked with respect to Russia’s
actions on the Georgian territories of Abkhazia and South Ossetia. There is no temporal ground for
rejecting the jurisdiction of the Court under the 1965 Convention.
17. Thank you, Mr.President and Members of the Court. I now ask you to allow
Mr. Paul Reichler to continue with the oral arguments of Georgia.
The PRESIDENT: I thank Ms Tina Burjaliani for her statement. I now give the floor to
Mr. Paul Reichler.
Mr. REICHLER:
R ESPONSE TO R USSIA ’S FIRST PRELIMINARY OBJECTION
1. Mr. President, distinguished Members of the Court, good morning.
2. I will address the Court today on Russia’s first preliminary objection, which was the
subject of my good friend Mr.Wordsworth’s eloquent presentation yesterday. It is Georgia’s
submission that even Mr.Wordsworth’s eloquen ce cannot save a preliminary objection that is
thoroughly contradicted by the evidence, and therefore without merit.
3. Russia’s objection is this: that prior to the filing of the Application on 12August 2008,
there was no dispute between Georgia and Russia regarding any issues that fall under the CERD
Convention [start slide1]. According to Russia ⎯ and these are their words ⎯ the dispute that
Georgia has lodged with the Court is one “in which it is alleged that ‘Russia’s conduct constitutes
ethnic cleansing on a massive scale’. And yet it is a ‘dispute’ that was never mentioned [ ⎯ never
13
mentioned ⎯] to Russia until the date of Georgia’s Application to this Court . . .” In its written
pleadings, Russia asserts on at least six occasions that Georgia “never raised [ ⎯ it never raised ⎯]
13
POR, para. 3.3. - 15 -
beforehand the issue of alleged violations of CERD by the Russian Federation with regard to acts
14
or omissions related to events in Abkhazia or South Ossetia” . Not only ProfessorWordsworth,
but also AmbassadorGevorgian, Mr.Kolodkin, and ProfessorZimmermann sounded this refrain
during their oral presentations yesterday. [End slide 1.]
4. If repeated categorical denials like these were sufficient to change history, Russia’s
objection might have a chance. But the facts are the facts, and they cannot be washed away or
altered after the fact. And the facts show that Georgia complained to Russia many times about
Russia’s role in ethnic discrimination ⎯ including its direct participation in massive exercises of
ethnic cleansing ⎯ commencing in 1992 and regularly thereafter right up until, and culminating in,
the days immediately preceding the filing of the Application.
5. In particular, Georgia expressly complained to Russia, repeatedly, about Russia’s direct
participation in ethnic cleansing of Georgians to expel them from South Ossetia and Abkhazia,
which constitutes violations of Articles 2, paragraph 1 (a) and 5 of CERD; it expressly complained
to Russia about Russia’s direct support for third parties engaged in ethnic cleaning operations in
those territories, which constitutes a vi olation of Article 2, paragraph 1 (b) of CERD; it expressly
complained to Russia about Russia’s deliberate failure to prevent ethnic cleansing in areas of South
Ossetia and Abkhazia where it exercised effectiv e control, which constitutes a violation of
Articles 2, paragraph 1 (d) and 3 of CERD; and it expressly complained to Russia about Russia’s
persistent and long-standing denial of the ri ghts of Georgians previously expelled from these
regions to return to their homes, which constitutes violations of Articles 2 and 5 of CERD.
6. The documentary evidence ⎯ and there is a mountain of it ⎯ shows that Georgia
regularly and repeatedly raised disputes with Russia about all of these acts of ethnic discrimination
by Russia ⎯ all of which plainly constitute violations of CERD ⎯ over a period of more than
15 years preceding and leading up to the filing of the Application.
7. The argument over Russia’s first prelimin ary objection turns primarily on this evidence,
rather than on the law. The applicable law is cl ear from the Court’s jurisprudence, and the Parties
largely adopt the same view of it. Mr.Wordsworth said as much yesterday. First, we agree on
14
POR, para. 1.6. - 16 -
what constitutes a “dispute”, which is, as stated in the Mavromattis case, “a disagreement on a
point of law or fact”. Second, we agree that, as Mr. Wordsworth said, quoting the Court, whether a
dispute exists “is a matter for objective determin ation” by the Court; it does not depend on the
subjective views of the Parties 15. Third, the Parties agree that the law requires Georgia to
demonstrate the existence of a dispute with Russia as of the date of the Application. Fourth, the
Parties agree that to establish jurisdiction under Article22 of the CERD Convention, the dispute
submitted by Georgia must concern matters that fa ll within the scope of the Convention, which in
this case means it must involve allegations by Georgia of ethnic discrimination by Russia in
violation of specific provisions of the Convention. Fifth, and finally, the Parties agree that it is not
necessary for Georgia to have expressly named the CERD Convention, prior to the filing of the
Application; it is sufficient that Georgia had accused Russia of conduct that, if proven, would be in
violation of the Convention.
8. In regard to this last point, Mr.Wordsworth very helpfully agreed that, under the rule
established by the Court in the Nicaragua case in 1984, and these are his words: “there is naturally
no absolute requirement that a State must have sp ecified that a given treaty has been violated in
order later to invoke that treaty before the Court” 16. This, in fact, has been Russia’s position since
the outset of this case, as reflected in Professor Pe llet’s remarks during the hearings on provisional
measures two years ago 17. The citation is in the written text of my speech.
9. The applicable law then is clear and undisputed. So let us now look at the evidence.
The evidence
10. As I said, there is considerable documentary evidence showing that Georgia had disputes
with Russia over Russia’s ethnic discrimination ag ainst persons of Georgian descent in South
Ossetia and Abkhazia, repeatedly, between 1992 and 2008. Mr. Wordsworth very skilfully tried to
15CR 2010/8, pp.31-32, para.15 (Wordsworth); Interpretation of Peace Treati es with Bulgaria, Hungary and
Romania, Advisory Opinion, I.C.J. Reports1950 , .4; East Timor (Portugal v. Australia ), Judgment,
I.C.J. Reports 1995, p.100; Questions of Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom ), Preliminary Objections, Judgment,
I.C.J. Reports 1998, p.17, para.21; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Equatorial Guinea intervening) , Preliminary Object ions, Judgment, I.C.J.Reports1998 , p. 275, para. 87;
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda),
Judgment, I.C.J. Reports 2006, p. 40, para. 90.
16CR 2010/8, p. 32, para. 17 (Wordsworth).
17CR 2008/27, para. 15 (Pellet). - 17 -
convert the quantity of Georgia’s documentary eviden ce to his client’s advantage. “How striking”
he said “that Georgia goes on to deploy 80 or mo re documents in... its Written Statement in
seeking to demonstrate the existence of a dispute ⎯ for what should really be a straightforward
matter” 18. He accused Georgia of “seeking to smother the Court in documentation for one reason,
19
which is the absence on the record of the straightforward ‘yes’ and ‘no’” .
11. Mr. President, Members of the Court, Georgia need make no apology for submitting
80or more documents, covering the 16-year pe riod from 1992 to 2008, which show the multiple
occasions on which Georgia had disputes directly with Russia over ethnic discrimination by Russia
against persons of Georgian descent in South Ossetia and Abkhazia. If the evidence is voluminous,
it is because of the volume of Georgia’s complain ts to Russia in this regard. However, if
Mr.Wordsworth wants a straightforward “yes” and “no”, he can find it in several places in our
80 plus documents. Here are some of them.
Patent Disagreements on Points of Fact About Ethnic Cleansing
12. On 9 August 2008, the day after Russian troops crossed the border into South Ossetia in
large numbers, the President of Georgia made a widely-distributed public statement aimed at
Russia and accusing it of direct participation in ethnic cleansing to remove ethnic Georgians from
territory under Russian control. [Start slide2.] President Saakashvili’s stated: “Russian troops”
and “Russian tanks . . . moved . . . into South Ossetia” where they
“expelled the whole ethnically Georgian population... This morning they’ve
committed the ethnic cleansing in all areas they control in South Ossetia, they have
expelled ethnic Georgians living there. Right now they are t20ing to set up the ethnic
cleansing of ethnic Georgians from upper Abkhazia.”
This statement is included in your Judges’ folder at tab 3. [End slide 2.]
13. The next day, on 10 August, Russia denied these accusations, in remarks to the Security
Council by its Permanent Representative to the United Nations. “Yes” and “No”. In the same
18CR 2010/8, p. 28, para. 3 (Wordsworth).
19Ibid.
20
Press Briefing, Office of the President of Georgi“President of Georgia Mikheil Saakashvili met foreign
journalists” (9 Aug. 2008); WSG, Vol. IV, Ann. 184. For an example of reporting on President Saakashvili’s statement,
see “Russian bear goes for West’s jugular”, Mail on Sunday (London(10Aug. 2008) (reporting President Saakashvili
“said Russia was conducting ethnic cleansi ng of Georgians in Ossetia and Abkhazi a’s Kodor[i] Gorge region”); WSG,
Vol. IV, Ann. 201. - 18 -
session of the Security Council, Georgia’s Permanent Representative accused Russia of trying to
“exterminate the Georgian people” in South Ossetia 21. Russia’s Permanent Representative also
denied this accusation. Again, a “Yes” and a “No”.
14. On 11August, one day after the milita ry engagements between Georgia and Russia
ended and Georgian forces withdrew from South Ossetia, Georgia again accused Russia of carrying
out a campaign of ethnic cleansing in South Ossetia to rid it of ethnic Georgians. Georgia’s
Ministry of Foreign Affairs issued a widely-reported public statement declaring: “Russian
servicemen and separatists carry out mass arrests of peaceful civilians of Georgian origin still
remaining on the territory of [South Ossetia] and s ubsequently concentrate them on the territory of
the village of Kurta.” 22 This is at tab 4 in the Judges’ folder.
15. The same day ⎯ 11 August ⎯ President Saakashvili made the following accusation that
was broadcast around the world on CNN: [start slide 3.] The Russian army
“expelled . . . the whole Georgian population” of South Ossetia, and “right now, as we
speak, there is an ethnic cleansing of [the] whole ethnic Georgian population of
Abkhazia taking place by Russian troops. I directly accuse Russia of ethnic cleansing
there. And it’s happening now.” 23
This statement is in the Judges’ folder, at tab 5. [End slide 3.]
16. President Saakashvili’s accusation was promp tly denied by Russia, in the person of its
Foreign Minister, Mr. Sergey Lavrov. According to an official transcript published by the Russian
Foreign Ministry, in English translation, of course: “Mr. Saakashvili . . . did not feel shy of using
the term ethnic cleansings... it was Russia that he accused of carrying out those ethnic
24
cleansings” . It was Russia that Georgia accused of carrying out those ethnic cleansings. Not
Abkhaz or Ossetian separatists, as Russia’s counsel have told you, but Russia itself that was
accused. And this is acknowledged by the Russian Foreign Minister himself. His response was not
21UnitedNations Security Council, 5953rd Meeting, UNdoc.S/PV.5953 (10 Aug. 2008), p.16; WSG, Vol.III,
Ann. 96.
22
Ministry of Foreign Affairs of Georgia, Statement of the Ministry of Foreign Affairs of Georgia (11 Aug. 2008);
WSG, Vol. IV, Ann. 185.
23
“President Bush condemns Ru ssian invasion of Georgia”, CNN (11Aug. 2008) (emphasis added); WSG,
Vol. IV, Ann. 205.
24
Ministry of Foreign Affairs of the Russian Federation, Transcript of Remarks and Response to Media Questions
by Russian Minister of Foreign Affairs Sergey Lavrov at Joint Press Conference After Meeting with Chairman-in-Office
of the OSCE and Minister for Foreign Affairs of Finland Alexander Stubb, Moscow, Aug. 12, 2008 (12 Aug. 2008)
(emphasis added). WSG. Vol.IV, Ann. 187. See also “Lavrov: ‘Russia is frustrated with the cooperation with the
Western countries on South Ossetia’”, Pravda (12 Aug. 2008); WSG, Vol. IV, Ann. 208. - 19 -
25
a mere denial of these charges, but a declaration that President Saakashvili should leave office for
having made them. To use Professor Wordsworth’s simplified but efficient terminology, we have
another “Yes” and another “No”.
17. Russia’s repeated incantation that Georgia’s accusation that it had engaged in “conduct
constitut[ing] ethnic cleansing on a massive scale” “was never mentioned to Russia until the date of
Georgia’s Application to the Court, that is, on 12August2008” 26, cannot stand in light of the
indisputable evidence that between 9 and 11 August, prior to the filing of the Application, Georgia
publicly accused Russia, on at least four separate occasions, of carrying out ethnic cleansing on a
massive scale in South Ossetia and Abkhazia, and Russia responded by denying these accusations.
18. So what is my friend Mr.Wordsworth’s response to these four exchanges between
Georgia and Russia, these four “yeses” and “nos” regarding Georgia’s accusations that Russia was
engaged in ethnic cleansing on a massive scale? He says they don’t count. They do not count?
Why not? Mr. Wordsworth tells us they do not count because
“those statements were made in the cont ext of Georgia’s unsuccessful and unlawful
recourse to the use of force on the night of 7August 2008... self-evidently, such
statements do not constitute an attempt to identify and achieve the peaceful settlement
of an alleged long-standing dispute over racial discrimination” . 27
19. With respect, there are several serious pr oblems with Mr.Wordsworth’s approach. In
the first place, he is attempting to create new law. To properly seise the Court, it is not enough for
him that there is a difference between the Parties over a question of law or fact ⎯ which, in regard
to Russia’s ethnic cleansing, there plainl y was prior to the filing of Georgia’s Application ⎯ but it
must also be the case, according to Mr.Wordsworth, that this difference not have arisen in the
context of what he calls an unlawful or unsuccessful use of force. To this, Mr. Wordsworth would
add the further condition that the statements in which the dispute is identified must be such as to
facilitate the achievement of its peaceful resolutio n. Nowhere in the Court’s jurisprudence on
25Ministry of Foreign Affairs of the Russian Federation, Transcript of Remarks and Response to Media Questions
by Russian Minister of Foreign Affairs Sergey Lavrov at Joint Press Conference After Meeting with Chairman-in-Office
of the OSCE and Minister for Foreign Affairs of Finland Alexander Stubb, Moscow, Aug. 12, 2008 (12 Aug. 2008)
(emphasis added); WSG. Vol.IV, Ann. 187. See also “Lavrov: ‘Russia is fustrated with the cooperation with the
Western countries on South Ossetia’”, Pravda (12 Aug. 2008); WSG, Vol. IV, Ann. 208.
26WSG, para. 3.3.
27WSG, para. 33. - 20 -
whether and in what circumstances a dispute is found to exist are any conditions, such as those
proposed by Mr. Wordsworth, mentioned or implied.
20. But Mr. Wordsworth’s approach also suffers from another infirmity. It flagrantly distorts
the facts in a calculated effort to rob Georgia’s co mplaints of their legitimacy. Mr. Wordsworth is
not alone in doing this. It is central to Russia’s argument, both in its written and oral pleadings, to
depict Georgia as an aggressor, which first resorted to the use of force, and then, only when that
failed, it concocted, as a last resort, a case of ethnic discrimination against Russia ⎯ not because a
legitimate dispute existed, but becau se this was the only way it could get Russia before this Court.
To this end, Russia and its advocates repeat edly call the dispute over ethnic discrimination
“artificial” and “manufactured” 28.
21. To make these charges stick, they pret end that history bega n on the evening of
7 August 2008, when, according to them, Georgian forces initiated an armed conflict with Russia.
Only when that effort failed, they claim, did Georgia invent a dispute about ethnic discrimination.
What they ignore, and what they attempt to keep the Court from seeing, is that the dispute between
Georgia and Russia over ethnic cleansing, and other forms of discrimination against ethnic
Georgians in South Ossetia and Abkhazia, did not originate in August 2008. The evidence shows
that it originated as far back as 1992, and that Georgia complained about ethnic cleansing to Russia
on a regular basis thereafter, over the next 16 years, without satisfactory resolution of these claims.
The evidence shows that the dispute between Georgia and Russia over ethnic cleansing did not
arise from the armed conflict of August2008, but th at the reverse is true , the armed conflict of
August2008 resulted from more than a decade a nd a half of ethnic conflict, including ethnic
cleansing and other forms of ethnic discrimination by Russia aimed at expelling ethnic Georgians
from South Ossetia and Abkhazia and, once it expelled them, keeping them out on a permanent
basis.
22. Before turning to this evidence, I must say that it would literally take hours for me to
recount every occasion, during this 16-year period, when Georgia accused Russia of ethnic
cleansing, or other discriminatory acts that violated specific provisions of the CERD Convention,
28
See, e.g,. POR, paras. 3.2, 3.33. - 21 -
so in my speech I will necessarily limit myself to a few of the more notable examples. However, a
more comprehensive collection of the occasions when Georgia and Russia disputed claims
regarding Russia’s discriminatory conduct falling under the Convention is annexed to Georgia’s
Written Statement, filed five months ago. The examples cited in my speech, as well as those
annexed to the Written Statement are nevertheless new evidence, in the sense of not having been
placed before the Court at the time of the provisi onal measures hearing when the Court found that
there was already sufficient evidence, albeit on a prima facie basis, that Georgia had raised disputes
under the CERD Convention sufficient to invoke the Court’s jurisdiction under Article 22.
EXAMPLES OF PUBLIC STATEMENTS BY G EORGIA BETWEEN 1992 AND 2008 EVIDENCING A
DISPUTE WITH R USSIA ABOUT ETHNIC CLEANSING
23. The Court will recall from Georgia’s Memorial that the first round of ethnic cleansing
that targeted Georgians occurred in 1992. Yesterday, Ambassador Gevorgian referred to the armed
conflicts in South Ossetia in 1991-1992 and Abkhazia in 1992-1993 that resulted in what he called
29
“the displacement of tens of thousa nds of persons of various ethnicities” . The evidence shows
that Georgia contemporaneously accused Russia of di rect participation in ethnic cleansing in both
territories. In 1992, Georgia declared that Russia was responsible for “the mass shooting” of the
civilian Georgian population and “the policy of ethnic cleansing” in South Ossetia. Georgia
emphasized that these violent acts of discrimination included “immediate involvement of Russian
armed forces” 30.
24. The following year, in April 1993, Georgia complained to the United Nations and the
OSCE that “Russian troops” were committing “ethni c cleansing” in Abkhazia. Georgia alleged
that “Russia” bore “full responsibility” for the “[s]ystematic mass murders, shootings, and
unprecedented harassment of the Georgian populat ion” that was designed to make them “leave
31
their places of residence” .
25. Georgia acceded to the CERD Conven tion on 2June1999. I cite these earlier
statements, relating to events in 1992 and 1993, no t as a basis for Georgia’s claims against Russia
29
CR 2010/8, p. 12, para. 1 (Gevorgian).
30Statement of the Parliament of Georgia (17 Dec. 1992); WSG, Vol. IV, Ann. 124.
31Appeal of the Parliament of Georgia to the UNations, Conference on the Security and Cooperation in
Europe, International Human Rights Organizations (1 Apr. 1993) (emphasis added); WSG, Vol. IV, Ann. 125. - 22 -
in this action, but as evidence that the dispute with Russia over ethnic cleansing is long-standing
and legitimate, and not of recent invention. In any event, soon after its accession to CERD,
Georgia continued to accuse Russia of direct res ponsibility for ethnic cleansing of Georgians from
Abkhazia and South Ossetia. For example, in October2001 Georgia publicly declared that
Russia’s Peacekeeping Forces “committed numerou s crimes against the peaceful population”.
Since their deployment, “the ethnic cleansing ag ainst Georgians has not stopped” and “more than
32
1,700 persons [had been] killed...” [Start slide 4.] In February 2004, PresidentSaakashvili
issued a widely public statement directly accusing Russia of ethnic cleansing; he said: “most of
the population” in Abkhazia had been “ethnically Ge orgian” but they were “thrown out by Russian
troops and local separatists . . . [I]t’s primarily [a n] issue of our relations with Russia” since “[t]he
Russian generals are in command there . . .” 33. [End slide 4.]
26. President Saakashvili again accused Russi a of ethnic cleansing in an address to the
European Parliament in November2006: “[t]he Russian administration first undertook ethnic
cleansing” in the early 1990s, and “history seems to be repeating itself”, with Russia again
“targeting the same victims for a second time” 34. Yesterday, Mr.Wordsworth dismissed
35
statements such as these as referring only to pre-CERD historical events . But here is
President Saakashvili, in November 2006, declaring that that history of ethnic cleansing by Russia,
was repeating itself at that very time. He made a similar accusation in September 2007 in a speech
to the United Nations General Assembly, when he cited Russia for its: “morally repugnant politics
of ethnic cleansing, division, violence and indifference” 36.
27. In April 2008, Georgia wrote to the Security Council that Russia supported and justified
37
“the ethnic cleansing of hundreds of thousands of peaceful citizens” . To the same effect, in
32Resolution of the Parliament of Georgia, Concerning th e situation on the territory of Abkhazia (11Oct.2001);
WSG, Vol. IV, Ann. 145.
33“Ask Georgia's President”, BBC News (25 Feb. 2004) (emphasis added); WSG, Vol. IV, Ann. 198.
34
Office of the President of Georgia, Press Release, “Remarks by The President of Georgia Mikheil Saakashvili to
the European Parliament, Strasbourg” (14 Nov. 2006) (quoting Otar Ioseliani); WSG, Vol. IV, Ann. 172.
35
CR 2010/8, p. 39, para. 31 (Wordsworth).
36
United Nations General Assembly, 7th Plenary Meeting, Address by Mr .Mikheil Saakashvili, President of
Georgia, UN doc. A/62/PV.7 (26 Sep. 2007), pp. 18-20; WSG, Vol. III, Ann. 88.
37
United Nations General Assembly, Letter dated 17 April 2008 from the Chargé d’affaires a.i. of the Permanent
Mission of Georgia to the United Nations addr essed to the Secretary-General, Annex , UN doc. A/62/810 (21 pr. 2008);
WSG, Vol. III, Ann. 91. - 23 -
July2008, Georgia’s Foreign Ministry issued a public statement that Russia’s “true designs” in
South Ossetia and Abkhazia were “to legalize results of the ethnic cleansing” that had been
38
“instigated by itself and conducted through Russian citizens” .
28. Now, what does Mr.Wordsworth have to say about the eight specific occasions I have
just mentioned, between 1992 and July 2008, when Georgia publicly made allegations that gave
rise to disputes with Russia about the latter’s di rect responsibility for ethnic cleansing aimed at
expelling Georgians from Abkhazia or South Ossetia, or about the other evidence of the existence
of these disputes, annexed to Georgia’s Written Statement? He dismisses all of this as
39
“background noise” . This was not a careless or casual remark. He used the same phrase three
times in the space of three consecutive paragraphs of his speech to describe the statements
evidencing Georgia’s accusations regarding Ru ssia’s role in, and responsibility for, ethnic
cleansing 40. As in: “There was, to put it colloqui ally, a very high level of background noise
against which Russia would have had to discern th e existence of the alleged CERD dispute with
41
Georgia.” To this I might respond: What was it about the words “I directly accuse Russia of
ethnic cleansing... And it’s happening now” that made it so difficult for Russia to discern the
existence of a dispute falling under CERD?
29. As the evidence covering the period fro m 1992 to 2008 shows, PresidentSaakashvili’s
accusations against Russia between 9 and 11Augus t did not mark the beginning of the dispute
between the two States over ethnic cleaning, but its culmination. By August2008, more than
200,000Georgians had been forcibly expelled from Abkhazia and South Ossetia; Georgia’s
repeated efforts over more than a decade to persuade Russia to allow the exercise of their right of
return had gotten nowhere; they remained excluded; and the situation of the remaining Georgian
communities in those two territories was rapidly growing more perilous, notwithstanding Georgia’s
protests that Russia’s peacekeepers were not only failing in their duty to protect them, but actively
engaged in harassing them, as Georgia has alleged in the Application.
38Ministry of Foreign Affairs of Georgia, Comment of the Press and Informati on Department of the Ministry of
Foreign Affairs of Georgia (17 July 2008) (emphasis added); WSG, Vol. IV, Ann. 182.
39
CR 2010/8, p. 37, para. 26 (Wordsworth).
40
CR 2010/8, pp. 37-38, para. 26, 27, 28 (Wordsworth).
41CR 2010/8, p. 37, para. 26 (Wordsworth). - 24 -
30. Russia itself has suggested, at paragra ph3.9 of its written pleadings, that “Armed
conflicts commonly arise in the context of some form of inter-ethnic conflict.” And so it happened
here, in August 2008. Armed conflict arose in the context of an ethnic conflict. But the fact that it
did does not make Georgia’s long-standing and repeated complaints about Russia’s direct
responsibility for ethnic cleansing disappear, or rob them of their legitimacy or authenticity.
31. There can be no question, in light of the documentary evidence submitted by Georgia,
that Georgia and Russia were in dispute over ethnic cleansing that Georgia attributed to Russia,
well before the Application was filed on 12August2008. Mr.Wordsworth pointed out that
“around a quarter or more of the 80 documents on which Georgia relies are dated prior to the date
of Georgia’s ratification of CERD” 42. Even if he were correct, that would leave 60 plus documents
evidencing Georgia’s complaints against Russia under CERD during the relevant time period.
32. I will now turn to the evidence showing that Georgia raised disputes with Russia not only
about ethnic cleansing but also about other fo rms of ethnic discrimination falling within the
Convention. So as not to tax the Court, and because the relevant evidence is set forth more fully in
Georgia’s Memorial, I will mention only two or three examples under each of these headings,
enough to illustrate the point.
O CCASIONS WHEN GEORGIA ’S ALLEGATIONS GAVE RISE TO A DISPUTE REGARDING
R USSIA ’S SUPPORT FOR ETHNIC CLEANSING BY THIRD PARTIES
33. In regard to the dispute over Russia’s s upport and facilitation of ethnic discrimination by
other groups in Abkhazia and South Ossetia, Geor gia accused Russia in May 1998 of “assist[ing]
separatists in conducting punitive operations agains t peaceful population” in the Gali district of
Abkhazia where “more than 1,500ethnic Georgi ans” were murdered and “over 1,000houses”
burnt43. Georgia publicly held Russia and its peacekeep ing forces “responsible for the tragedy in
Gali District” where they “facilitated raids against [the] peaceful population and destruction of
44
villages in their entirety”.
42
CR 2010/8, p. 39, para. 30 (Wordsworth).
43
Statement of the Parliament of Georgia, 27 May 1998; WSG, Vol. IV, Ann. 136.
4Ibid. - 25 -
34. In October 2005, Georgia accused Russia of providing assistance to separatist militias in
Abkhazia and South Ossetia that made it respons ible for “killings” of Georgians, “raids and
robbery of the civilian population”, “appropriating ... refugee assets”, “denial of the right of
instruction to citizens in their native language” a nd “denial of their right to return”; Georgia
45
expressly cited “the role of Russian Federation in inspiring and maintaining these conflicts . . .” .
In January2006, Georgia reported to the Secretary-General that Russia’s support for measures to
“eliminat[e]... Georgian identity and cultural heritage” in the Gali istrict of Abkhazia, including
the destruction of “Georgian historical sites, temples and churches”, and the denial of the right to
be taught in the Georgian language, amounted to Russia’s “endorsement of ethnic cleansing” 46.
O CCASIONS WHEN G EORGIA ’S ALLEGATIONS GAVE RISE TO A DISPUTE WITH R USSIA
OVER FAILURE TO PREVENT ETHNIC CLEANSING
35. The evidence also shows that Georgia and Russia were in dispute about Russia’s
responsibility for failure to prevent discriminati on against ethnic Georgians in areas of Abkhazia
and South Ossetia that it controlled. In September2006, for example, PresidentSaakashvili
publicly accused Russia of failing to prevent viol ent discrimination against Georgians in areas
under its control in Abkhazia, resulting in “more th an 2,000 Georgian citizens . . . lo[sing] their
47
lives and more than 8,000 Georgian homes destroyed” .
36. In November2006, Georgia reported to the United Nations Human Rights Committee
that in both Abkhazia and South Ossetia “[m]any c itizens of Georgia living there are subjected to
torture and other ill-treatment; they are victims of other numerous, grave human rights violations”,
and these “flagrant human rights violations . . . take place” “where the Russian Federation exercises
48
effective control” . In May2008, Georgia’s Minister of Foreign Affairs called upon Russia and
the Russian peacekeepers in Abkhazia to provide “explanations” for “why they don’t protect ethnic
4Resolution of the Parliament of Georgia Regarding the Current Situation in the Conflict, Regions on the
Territory of Georgia and Ongoing Peace Operations, 11 Oct. 2005; WSG, Vol. IV, Ann. 158.
4Ministry of Foreign Affairs of Georgia,Statement by Mr.Irakli Alasania Special Representative of the
President of Georgia to UN Security Council, 26 Jan. 2006; WSG, Vol. IV, Ann. 163.
4Office of the President of Georgia, “Remarks of H.E.Mikheil Saakashvili, President of Georgian to the
61st Annual United Nations General Assembly” (23 Sep. 2006); WSG, Vol. IV, Ann. 170. See also Ministry of Foreign
Affairs of Georgia, Statement of Mr.Irakli Alas ania, Ambassador Extraordinary Plenipotentionary, Permanent
Representative of Georgia in the UN, 3 Oct. 2006 (emphasis added); WSG, Vol. IV, Ann. 171.
4UN Human Rights Committee, Third periodic report of State parties due in 2006, UN doc. CCPR/C/GEO/3,
7 Nov. 2006, para. 22; WSG, Vol. III, Ann. 85. - 26 -
49
Georgians in the Gali district from physical violence” that deprives them of basic rights . The
Minister “condemn[ed]” these failures “in the stronge st terms” and demanded that Georgia receive
50
“receive . . . clarifications” from its Russian “colleagues” and “the Russian peacekeepers” .
37. Yesterday, Russia attempted to extract cu rrency from the fact that Georgia “agreed” to
the deployment of Russian soldiers to South Ossetia and Abkhazia and, in Mr.Wordsworth’s
words, it “warmly welcomed them” 51. History is replete with examples of such agreements
between small countries, like Georgia, and very big and militarily powerful neighbours, like
Russia, providing for the stationing of military for ces of the stronger power in the territory of the
weaker one. It is possible to question whether such arrangements are negotiated in conditions of
true equality and independence, especially wher e, as here, at the time Georgia was a newly
independent State, previously been under the sovereignty to Russia or its predecessor.
38. Whatever the circumstances that brought about the initial arrangement, the evidence
shows that Georgia, faced with the presence of Ru ssian soldiers, or peacekeepers, in South Ossetia
and Abkhazia, alternated between cajoling them to better protect vulnerable communities of ethnic
Georgians still residing in those territories, and cr iticizing them for their failure to do so, and, as I
will come to in a moment, criticizing them for refusing to allow Georgians displaced by previous
rounds of ethnic cleansing from returning to their homes in the two territories. The document from
which Mr.Wordsworth deduced the “warm welcome” given to the Russian forces was written in
52
1999 . Russia’s written pleadings supplied no docum entation of any similar praise for Russian
peacekeepers after April 2001. The record shows that, for the seven years immediately preceding
the Application, Georgia’s predominant view ⎯ expressed publicly and directly to Russia on
numerous occasions ⎯ was that the Russian peacekeepers were themselves engaging in specific
practices which, in fact, violated the CERD Convention.
49
Ministry of Foreign Affairs of Georgia, Transcript of the briefing of Minister of Foreign Affairs of Georgia Eka
Tkeshelashvili, 21 May 2008; WSG, Vol. IV, Ann. 180.
50
Ibid.
51CR 2010/8, p. 33, para. 19 (Wordsworth).
52Ibid. - 27 -
O CCASIONS WHEN G EORGIA ’S ACCUSATIONS GAVE RISE TO A DISPUTE WITH R USSIA
OVER DENIAL OF THE RIGHT OF RETURN
39. As I have mentioned, the evidence fu rther shows that Georgia repeatedly accused
Russia ⎯ and particularly the Russian peacekeepers ⎯ of forcibly preventing ethnic Georgians,
who were forced to flee their homes in Abkhazia and South Ossetia, from exercising their right of
return. As early as May 1997, Georgia complained that the victims of ethnic cleansing in Abkhazia
could not exercise their right to return because the Russian peacekeepers performed “the functions
53
of [a] border guard” by physically obstructing them .
40. In March2002, Georgia again accused Russia and its peacekeepers of serving “in
reality” as “border guards between Abkhazia and th e rest of Georgia and failing to perform the
54
duties, envisi[oned] by their mandate”, of facilitating the return of victims of ethnic cleansing . In
July2006, Georgia wrote to the Secretary-Genera l accusing Russia of “bringing about permanent
attempts to legalize the results of ethnic cleansing” and a “massive violation of fundamental human
rights” of the Georgian population that had been forcibly expelled from Abkhazia and South
Ossetia, and was prevented from returning by the Russian border guards who controlled entry into
55
these territories .
41. In June2008, PresidentSaakashvili wrote to PresidentMedvedev proposing that Russia
withdraw its forces from Georgian-populated areas in Abkhazia, so that previously-expelled
56
Georgians could return . PresidenMt edvedev rejected this proposal, as well as
PresidentSaakashvili’s subsequent one that Russia facilitate the “[s]afe and dignified return of
57
refugees and IDPs” . President Medvedev rejected the return of Georgian refugees to Abkhazia as
“untimely”, notwithstanding the fact that Georgi a had been calling consistently upon Russia to
allow the return of its IDPs, as the ev idence shows, for more than 12 years 58. Plainly, Georgia and
5Decree Issued By the Parliament of Georgia on FurthPresence of Armed Forces of the Russian Federation
Deployed in the Zone of Abkhaz Conflict under the Auspices of the Commonwealth of Independent States, 30 May 1997;
WSG, Vol. IV, Ann. 132.
5Resolution of the Parliament of Georgia on the Situation in Abkhazia, 20 Mar. 2002; WSG, Vol. IV, Ann. 146.
5UN General Assembly, Letter dated 24 July 2006 from the Permanent Representative of Georgia to the United
Nations addressed to the Secretary-General, Ann., UN doc. A/60/954, 25 July 2006; WSG, Vol. III, Ann. 82.
5Letter from President Mikheil Saakashvili to President Dmitry Medvedev, 24 June 2008; MG, Vol.V,
Ann. 308.
5Letter from President Mikheil Saakashvili to President Dmitry Medvedev, 24 June 2008; MG, Vol.V,
Ann. 308.
5Letter from President Dmitry Medvedev to President Mikheil Saakashvili, 1 July 2008; MG, Vol. V, Ann. 311. - 28 -
Russia were in dispute over the exercise of the ri ght of return of ethnic Georgian IDPs, a right
guaranteed by Article 5 of the CERD Convention, since long before the Application was filed.
42. Yesterday, Mr.Wordsworth acknowledged that Russia has quote ⎯ his words ⎯
“reiterated and reaffirmed as fundamentally impor tant the right of return for all refugees to
59
Abkhazia” . There can be no question then, that Georgia’s repeated complaints between 2002 and
2008, that Russian troops were discriminating ag ainst ethnic Georgians displaced from Abkhazia
by preventing them from returning to their homes in that territory, evidenced a cognizable dispute
under the CERD Convention.
43. This is the conclusion reached by the Court in its Order on Provisional Measures. In that
Order, the Court observed that:
“Georgia contends that the evidence it has submitted to the Court demonstrates
that events in South Ossetia and in Abkhazia have involved racial discrimination of
ethnic Georgians living in those regions and therefore under the provisions of
Articles 2 and 5 of CERD”;
further that Georgia,
“alleges that displaced ethnic Georgians, who have been expelled from South Ossetia
and Abkhazia, have not been permitted to return to their place of residence, even
though their right of return is expressly guaranteed by Article 5 of CERD…”.
In regard to these allegations, the Court found that : “the acts alleged by Georgia appear to be
capable of contravening rights provided for by CE RD, even if certain of these alleged acts might
also be covered by other rules of international la w, including international humanitarian law”; and
that “this is sufficient at this stage to establish the existence of a dispute between the Parties falling
within the provisions of CERD...” (Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional
Measures, Order, I.C.J. Reports 2008, para. 112).
44. Against all the evidence now before the Court, including all the evidence regarding
Georgia’s many complaints to Russia that were made prior to August 2008 ⎯ about ethnic
cleansing or other forms of ethnic discrimination by Russia ⎯ none of which had been made
available to the Court at the time of the provisional measures hearing.
59
CR 2010/8, p. 35, para. 22 (Wordsworth). - 29 -
45. Against all of this evidence showing di sputes between Georgia and Russia over acts by
Russia capable of contravening rights provided by CERD, starting as far back as 1992 and
continuing right up until the filing of the Applicationon 12 August 2008, Russia has served up a
number of arguments still attempting to deny the existence of any such dispute. None of Russia’s
arguments is persuasive.
R USSIA ’S ARGUMENT THAT THE DISPUTE UNDER CERD IS NOT THE “REAL ”
DISPUTE BETWEEN THE PARTIES
46. In particular, Russia protests repeatedly that the “real” dispute underlying this case is
between Georgia on the one hand and South Ossetia and Abkhazia on the other, in regard to the
legal status of those territories. Russia makes th is assertion, in identical language, three different
times in the first 60pages of its written pleading. And we heard it again from Mr.Wordsworth,
who said yesterday: “Mr. President, Russia’s case is not . . . that the existence of a dispute as to the
use of force or compliance with the laws of war ex cludes the possibility that there is a separate and
60
justiciable dispute under CERD.” Russia’s point is, according to Mr. Wordsworth, that “the real
dispute, or should I say disputes . . . are between Georgia on the one hand and South Ossetia on the
61
other, in relation to the legal status of Abkhazia and South Ossetia”.
47. Now, the first part of Mr.Wordsworth ’s statement contains a very interesting
concession: that the existence of a separate and justiciable dispute under CERD is not excluded by
the existence of other disputes between Georgia and Russia, or between Georgia and anybody else.
In other words, there may be two or more separ ate disputes and one of these may be a justiciable
dispute under CERD. That being the case, why then should the Court not take jurisdiction over the
dispute raised under CERD? Mr. Wordsworth comes up empty on that one. All he can say is the
“real” dispute concerns the legal status of Ab khazia and South Ossetia. But what makes that
dispute any more “real” than any of the others? What makes it more “real” than the dispute arising
under CERD? Because Russia says it is? With respect, they do not get to decide which dispute
Georgia brings to the Court. And once it is here, it is a matter of “objective determination” by the
Court whether the dispute exists. Even if, quod non, the dispute over the legal status of Abkhazia
60
CR 2010/8, p. 38, para. 29 (Wordsworth).
61Ibid.; emphasis added. - 30 -
and South Ossetia enjoyed some sort of hierarchical superiority over the dispute under CERD,
which Georgia of course denies, that would not prevent the Court from exercising jurisdiction over
the dispute under CERD.
48. Under the Court’s well-established jurisprudence, it is immaterial that there are other
disputes between Georgia and Russia, apart fro m the dispute under CERD. As the Court has
previously held, “no provision of the Statute or Rules contemplates that the Court should decline to
take cognizance of one aspect of a dispute merely because that dispute has other aspects, however,
important” (United States Diplomatic and Consular Staff in Tehran (United States of America v.
Iran), Judgment, I.C.J. Reports 1980, p. 20, para. 36; Border and Transborder Armed Actions
(Nicaragua v. Honduras) , Jurisdiction and Admissibility, Judgment, I.C.J. Reports1988 , p. 69,
para. 54; Border and Transborder Armed Actions (Nicaragua v. Honduras), I.C.J. Reports 1988,
p.69, para.96). In the Bosnian Genocide case, the Court exercised jurisdiction over a human
rights claim under Article IX of the Genocide Conve ntion even though it, too, arose in the context
of a wider and more complex dispute over the legal status of territory and armed conflict
(Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia) , Preliminary Objections, Judgment,
I.C.J. Reports 1996 (II), p. 617, para. 34).
49. Even when the same facts give rise to breaches of multiple international obligations, only
some of which fall under a compromissory clause, there is still no basis for the Court to decline
jurisdiction. This is clear from the Oil Platforms case, where the United States asserted a
preliminary objection to the Court’s jurisdicti on under the US-Iran Treaty of Amity on the ground
that Iran’s claims raised issues relating to the use of force, which it argued, did not fall within the
ambit of that Treaty. The Court rejected that argum ent, holding that “violation of the rights of one
party under the Treaty by means of the use of force is as unlawful as would be a violation by
administrative decision or by any other means” ( Oil Platforms (Islamic Republic of Iran v. United
States of America), Preliminary Objection, Judgment, I.C.J. Reports1996(II), pp. 811-812,
para. 21). Thus, “[m]atters relating to the use of force” were “not per se excluded from the reach of
the Treaty”. Here, Russia cannot circumvent th e Court’s jurisdiction under the CERD Convention - 31 -
by arguing that the discriminatory actions of which it has been accused were carried out by means
of, or in the context of, a use of force.
50. In essence, Russia’s argument is that there is an overarching dispute between the Parties
regarding the use of force, and that this dispe necessarily takes priority over any subsidiary
dispute about ethnic cleansing carried out in that co ntext. This argument is wrong on the facts, for
reasons I will come back to in a moment. But it is also wrong, and dangerous, on the law. Ethnic
cleansing is necessarily carried out by use of force, or at least the threat of force. Entire
communities of ethnic minorities do not normally abandon their homes and villages en masse
unless they are forced to do so, and this is not uncommonly done at the point of a gun. If the use of
force were sufficient to preclude jurisdictiover a claim of ethniccleansing under the CERD
Convention, what practical good w ould the Convention be as an instrument to address this violent
and most abhorrent form of ethnic discrimination?Such a result could not possibly be consistent
with the object and purpose of the Convention, or the intentions of its framers.
51. As I indicated, Russia is also wrong on th e facts. The armed conflict between Georgia
and Russia broke out on the night of 7-8 Augus t 2008. Accordingly, all of Georgia’s many
complaints of ethnic cleansing by Russia betw een April 1992 and July 2008, which I described
earlier, were made in advance of, and outside the context of, this armed conflict. Similarly,
Georgia’s complaints of ethnic cleansing aft10 August 2008, when its forces stopped fighting
and withdrew from South Ossetia, were made subse quent to the armed conflict. The existence of
an armed conflict between Georgia and Russi a between 7 and 10August cannot, therefore,
preclude Georgia from making a claim of ethnic cleansing under the CERD Convention, or deprive
the Court of jurisdiction over that claim.
R USSIA’S ARGUMENT THAT THERE CANNOT BE A DISPUTE UNDER CERD UNLESS G EORGIA HAS
INITIATED AND COMPLETED PROCEEDINGS UNDER ARTICLE 11 OF THE C ONVENTION
52. Russia’s final argument in support of its first preliminary objection is that the rules
customarily applied by the Court, to determinewhether a legal dispute exists, do not apply in
regard to claims made under the CERD Convention. Mr. Wordsworth spent a considerable amount
of time on this point yesterday. Professor Crawford, who follows me to the podium, will analyse - 32 -
the texts of both Article 22 and Article 11 of the Convention, as well as other relevant provisions,
and address and refute Mr. Wordsworth’s argument.
C ONCLUSION
53. Mr. President, Members of the Court, I have come to the conclusion of my speech. I will
sum up by emphasizing these six points. As regards the facts: First, prior to filing its Application
on 12 August 2008, Georgia made allegations about Russia’s conduct that gave rise to disputes
with Russia about ethnic discrimination by Russia against persons of Georgian ethnicity in South
Ossetia and Abkhazia; Second, these disputes concerned direct participation by Russia in ethnic
cleansing and other forms of discrimination against ethnic Georgians in these territories, direct
support by Russia for third parties engaged in the same activities, deliberate failure by Russia to
prevent these activities by third parties in areas under effective Russian control, and Russia’s
intentional prevention of ethnic Georgians, previously expelled from South Ossetia and Abkhazia,
from returning to those territories. Third, that each of these acts attributed by Georgia to Russia
falls within the scope of the CERD Conven tion, and evidences a dispute regarding the
interpretation or application of that Convention.
54. As regards the law: Fourth, under the long-established and well-settled jurisprudence of
the Court, it was not necessary for Georgia to expr essly invoke, or specifically mention, the CERD
Convention in order to establish a dispute unde r that Convention, over which the Court can
exercise jurisdiction under Article22; there is no rigid verbal formula for establishing a dispute
under a treaty’s compromissory clause; the rule is satisfied if the dispute concerns the subject
matter of the treaty; Russia, as affirmed by Mr.Wordsworth yesterday, agrees with this
proposition. Fifth, the fact that disputes between the Pa rties under the CERD Convention existed
alongside, or within the overall context of, a mo re complex matrix of other disputes, which are
themselves outside the scope of Article22’s compromissory clause, does not preclude the Court
from exercising jurisdiction over the CERD-related disputes. Sixth, and finally, in particular, even
if the disputes in relation to matters falling unde r the CERD Convention arose in the context of an
armed conflict, or if the same acts also constitute violations of international humanitarian law, the
Court still has jurisdiction over the CERD-related disputes under Article 22. - 33 -
55. For these reasons, Mr.President, Members of the Court, Russia’s first preliminary
objection is without merit, and does not constitutea bar to the exercise of jurisdiction over
Georgia’s claims. I thank you for your cour teous attention, and ask that you invite
Professor Crawford to the podium.
The PRESIDENT: I thank Mr.PaulReichler for his statement and then now I invite
Professor James Crawford to take the floor.
CMRA. WFORD:
JURISDICTION OF THE COURT UNDER ARTICLE 22 OF CERD
(RUSSIA ’S SECOND PRELIMINARY OBJECTION )
I. Introduction
1. Mr. President, Members of the Court, it is my task to address to address Russia’s second
preliminary objection ⎯ that this Court lacks jurisdiction by reason of Article 22 of CERD. Russia
makes a two-fold claim: first, that Article22subordinates the jurisdiction of this Court to the
procedures set out in Part II of CERD; second, that the procedural preconditions are not
alternatives but must be fulfilled cumulatively before a State Party may have recourse to this Court.
2. It is the position of Georgia that Article 22 does not impose any preconditions for resort to
compulsory dispute settlement provided there is a dispute arising under the Convention. All it does
is to require a simple finding of fact by the Court, namely, that there is a dispute which is not
already settled either by negotiation or by recourse to the other procedures in the Convention. In
the alternative, even if negotiations or resrt to other procedures were preconditions under
Article22, these procedures are not cumulative, it sufficient that any one of them is satisfied.
Here, not merely was there, and I quote the Court, “some attempt . . . to initiate . . . discussions on
issues that would fall under the Convention”; thee were in fact extensive negotiations on such
issues prior to the Application. My colleague, Professor Akhavam, will deal with the facts of these
negotiations. It is my task to deal with the legal question, what Article 22 actually requires. - 34 -
II. The Court and the Committee under the CERD
3. Mr.President, Members of the Court, we saw yesterday some impressive examples of
textual exegesis from Messrs. Wordsworth and Pellet, I thought for a while we were in a Faculty of
Scriptural Studies. But it was exegesis gone wild, producing results that cannot possibly have been
intended. Let me illustrate with an example.
4. I am a small, newly independent State, recently separated from my parent State which I
will call StateB, “B” for “bear”. The separa tion was acrimonious, and StateB takes measures
against villagers in its territory who share the sa me ethnicity and language as my own population.
These measures involve ethnic cleansing and the matter is extremely urgent. I believe the measures
violate the CERD. I try to negotiate with my pow erful neighbour but the negotiations fail at once,
and StateB refuses further negotiations. There is a dispute as defined by the Court in numerous
cases, though not in the special sense that Mr.Wo rdsworth discerned yesterday, to which I will
return. I wish to come to this Court, believing that I have a strong case fo r interim measures. But
before taking that drastic step I have to consult an international lawyer and I choose
ProfessorPellet, who, in his hitherto unaccustomed role as a legal formalist, tells me “No”.
According to him, the word “or” third occurring in Article 22 of the CERD actually means “and”,
with the result that I am compelled to go to the CERD Committee under Article 11, and thence ⎯
because Article 22 refers to the “procedures [in the plural] expressly provided in this Convention”
and the Conciliation Commission is such a procedure ⎯ I have to go to an ad hoc Conciliation
Commission under Article12 as well. The matter ⎯ this is the word used in Article13,
paragraph 1 ⎯ will then go back to the Committee under Article13. I take ProfessorPellet’s
advice and ask him how long will this take, a nd in response I am helpfully provided, for
Professor Pellet is nothing but helpful, with a lis t of 12 steps, specifying each step, its provenance
in Part II, and how long it may take. You will find a translation of Professor Pellet’s list at tab 7 in
your binder. It contains 12 steps, with a total el apsed time of at least two years, and probably three
to four years. You can see the time that it will likely take in the third column of the table. There
are three stages of negotiations in the process ⎯ numbers one, five and 12 ⎯ whereas negotiations
have already failed and failed utterly. In the end the recommendations of the Commission are
relayed to the respondent State, which is free to reject them. The Commis sion’s decisions are not - 35 -
binding; it can only recommend. It cannot order provisional measures. It cannot decide points of
law. Faced with an intransigent State, it is helpless.
5. I thank Professor Pellet for his advice, and I proceed under PartII, which takes many
years and is predictably utterly futile. By now of course the ethnic villages in State B lie empty and
ruined, while the refugee camps on my side of the border are full to overflowing with destitute
people. The ethnic cleansing is over. But, as Professor Pellet remarks to me as he leaves, the
integrity of the CERD Committee has been upheld. And the recommendation of the ad hoc
Conciliation Commission ⎯ delivered two years too late ⎯, recommending that urgent measures
be taken to stop ethnic cleansing in State B, will be much cited in the literature!
III. The alleged special meaning of “dispute”
6. Mr. President, Members of the Court, let’s have a sense of reality, and now it is my turn to
do the exegesis. I will deal with three issues: first, the alleged special meaning of “dispute” in the
CERD; second, the question whether Article22 establishes procedural preconditions, and third,
whether these are cumulative or alternative.
7. In the Preliminary Objections, Russia applie d the Court’s jurisprudence to the meaning of
a “dispute” 62, we do not think they got it right, but that is what they did. But yesterday my friend
Mr.Wordsworth suggested for the first time that the word “dispute” in Article22 has a “special
meaning” ⎯ a special meaning in the sense of Ar ticle31, paragraph4, of the Vienna
Convention ⎯ in which case the Court’s general jurisprudence on the meaning of “dispute” would
be irrelevant.
8. The point can be dealt with very briefly. Russia has the burden of establishing this special
meaning and that burden has not been discharged. It is true that a treaty could stipulate that a
complaint did not become a dispute until some proce dure had been applied: this is what the Indus
Waters Treaty of 1960 expressly does 63. ArticleIX, paragraph2, of that Treaty provides that in
defined circumstances “any difference [which has been considered by the Indus Waters
Commission] may either be dealt with by a Neutral Expert in accordance with Part 2 of Annexure F
62
POR, para. 3.17 et seq.
6India-Pakistan-IBRD, The Indus Waters Treaty, Karachi, 1Sep1.960 with Protocol,Nov.,
2 and 23 Dec. 1960; UNTS, No. 6032. - 36 -
or be deemed to be a dispute to be settled” by arbitration under Annexure G ⎯ it is a complicated
provision but it is quite clear that something is deemed to be a dispute at a certain point of time.
9. That provision is quite explicit in depar ting from the general international law definition
of a “dispute”, and it is entirely internally consistent in its terminology. The CERD, by contrast, is
neither explicit nor consistent. Russia’s argument that States only become parties to a “dispute”
under CERD ⎯ and therefore entitled to invoke the Court’s jurisdiction under Article 22 ⎯ if they
complete the process outlined in Article11 ⎯ which refers to “matters” ⎯ and then move on to
Article 12 ⎯ which refers to “disputes” ⎯ is utterly defeated by the terms of Article13. That
Article, which elaborates the procedures of an Article12 Commission, uses the words “matter”,
“dispute” and “issue” interchangeably. The first sente nce of Article 13 refers to a situation where
the “Commission has fully considered the matter” , the second sentence refers to “parties to the
dispute”. This is compelling evidence that the drafters did not intend there to be any difference in
meaning between the two words, at least not the decisive difference Russia claims.
10. A more plausible interpretation of Artic le 11 is that the CERD Committee was intended
to receive communications from any State party to the CERD, whether or not it is a party to a
dispute or difference, and that is precisely what Article11, paragraph1, says. Remember, this is
1965, your Court is about to hear the Second South West Africa cases; there is an influential body
of professional opinion which limits standing to sue to directly injured States. The more flexible
notion of a State party bringing a matter to the a ttention of the Committee was entirely appropriate
for the Racial Discrimination Convention given its subject-matter. This in a world which as yet
knew not the magic of obligations erga omnes!
IV. The meaning of “which is not settled”
11. I turn next to the meaning of the phrase “w hich is not settled” in Article 22, and I do so
on the basis that the dispute settlement clauses of the Convention, in particular Article 22 providing
for recourse to this Court, were intended to be effective. The little parable I told you earlier
showed that the other interpretation makes them utterly ineffective. - 37 -
(a) The ordinary meaning of Article 22 interpreted in its context
12. [Start slide 1.] You will see on the screen the text of Article 22. Since Professor Pellet
read it, I think, three times yesterday, I won’t read it today.
13. I noticed the Court already interpreted Article 22 in its Order of 15 October 2008 in the
following terms:
“the phrase ‘any dispute... which is not settled by negotiation or by the procedure
expressly provided for in this Convention’ does not, on its plain meaning, suggest that
formal negotiations in the framework of the Convention or recourse to the procedure
referred to in Article22 thereof constitute preconditions to be fulfilled before the
seisin of the Court . . . however Article 22 does suggest that some attempt should have
been made by the claimant party to initiate, with the respondent party, discussions on
issues that would fall under CERD” . 64
In the present case, as you held in the next paragraph of the Order, some attempts had indeed made
to initiate “discussions on issues that would fall under CERD” 65. You accordingly upheld your
prima facie jurisdiction to hear the case, rejecting Russia’s arguments to the contrary.
14. I suggest that what was a “plain meaning” in 2008 is a “plain meaning” now, and that on
its face the text of Article 22 does not support Russia’s position.
15. Russia claims that Article22 imposes three conditions that must be satisfied, and all
satisfied, before Georgia is entitled to have access to the Court:
⎯ first, Georgia must have complied with some ge neral “duty to settle the dispute before seising
the Court”;
⎯ second, Georgia must have complied with the obligation to negotiate with Russia; and
⎯ third, Georgia must have had recourse to “t he procedures expressly provided for in [the]
66
Convention” , that is to say, in Articles 11 and 12.
16. Yet none of these conditions are to be found in the actual text of Article 22. Specifically:
⎯ Article22 says nothing ⎯ expressly or impliedly ⎯ about any general “duty to settle the
dispute before seising the Court”;
64
Order of 15 October 2008, I.C.J. Reports 2008, p. 388, para. 114
65
Ibid., para. 115.
66POR, para. 4.5 et seq. - 38 -
⎯ Article 22 says that a State Party may unilaterally refer a dispute to the Court if that dispute “is
not settled by negotiation”, or the other means, but it does not establish any express obligation
to negotiate;
⎯ Article 22 provides that a State Party may unilaterally refer a dispute to the Court if it “is not
settled by . . . the procedures expressly provi ded for”, but it does not establish any obligation
to have recourse to these procedures. [End slide 1.]
17. If the drafters of the Convention had inte nded to include the conditions that Russia reads
into the text, they could and would have done so. Article11 is an example of the drafter’s
approach when it does impose procedural conditions.
18. Article11, paragraph3, imposes another explicit precondition, the exhaustion of local
remedies before the claimant State files a renewed application to the Committee. It is perfectly
clear:
“Thme mittee shall deal with a matter referred to it in accordance with
paragraph 2 of this article after it has ascertained that all available domestic remedies
have been invoked and exhausted.”(Emphasis added.)
When the drafters wanted to impose mandatory cond itions, whether by reference to the State Party
or the Court or Tribunal, they knew how to do so. Article 22 nowhere provides that the Court shall
have regard to a precondition, that all available remedies referred to in Article11 have been
invoked and exhausted. That language could have been used. Given the contrast with Article 11, it
has to be concluded that this was a deliberate choice.
19. Equally, the drafters of the Convention agreed that it was sufficient that the dispute “is
not settled”. That is a statement of fact, whether a dispute is settled or not. There was no express
language of priority. They did not even use the phrase “cannot be settled” by negotiation or other
means, as drafters have done in many other conventions ( Mavrommatis Palestine Concessions,
Judgment No.2, 1924, P.C.I.J., SeriesA, No.2 , p.13; South West Africa (Ethiopia v. South
Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962 , p. 435;
Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment , I.C.J.
Reports 1963, p.15). The difference was noted by JudgeJessup, for example, in the South West
Africa cases, where he said: “The phrase ‘cannot be settled’ clearly must mean something more - 39 -
than ‘has not been settled’ [or ‘is not settled]” ( South West Africa (Ethiopia v. South Africa;
Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 435) 67.
20. The ordinary meaning of Article 22 does not impose any general duty to attempt to settle
the dispute before seising the Court. Nor does the ordinary meaning require the exhaustion of other
optional means for the pacific settlement of disputes. This is highlighted by the context of the
Convention, including the separate location of Article 22 in Part III, the different drafting approach
as contrasted with the detailed and conditioned complaint procedures in Part II, as well as the
adoption of Article 16 at the end of Part II of the Convention.
(b) The international jurisprudence does not support Russia’s approach
21. I turn next to the jurisprudence. In this context I recall the Court’s long-standing practice
of rejecting preliminary objections on the grounds of alleged deficiencies of negotiations preceding
the institution of those proceedings. So long as ther e has been some attempt to negotiate, that is
sufficient. The objection has been repeatedly rejected both by the Permanent Court and your
Court 68. In Military and Paramilitary Activities ( Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1984 , p. 392), the United States argued that Nicaragua had not raised in
prior negotiations or diplomatic efforts the app lication or interpretation of the 1956 Friendship,
Commerce and Navigation Treaty (FCN Treaty). But you ruled decisively that the dispute was
“clearly one which is not satisfactorily adjusted by diplomacy”. And you said:
“In the view of the Court, it does not necessarily follow that, because a State has
not expressly referred in negotiations with another State to a particular treaty as
67See also Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan,
Decision on Jurisdiction , N4o2v0.05, ICSID case o.RB/03/29), par9a8., available at:
http://www.worldbank.org/icsid/cases/awards.htm.
68Mavrommatis Palestine Concessions (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2 , pp. 13-15), South West
Africa (Ethiopia v. South Africa ; Liberia v. South Africa)(Preliminary Objections, J udgment, I.C.J. Reports 1962 ,
pp. 319, 346), United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (Judgment,
I.C.J. Reports 1980, p. 27, para. 51), Applicability of the Obligation to Arbitrat e under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947 ( Advisory Opinion, I.C.J. Reports 1988, pp. 33-34, para. 55) and Questions of
Interpretation and Application of the 1971 Montreal Conven tion arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom) ( Preliminary Objections, Judgm ent, I.C.J. Reports 1998 , p.17, para. 21);
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United States of America) (Preliminary Objections, Judgment, I.C.J. Reports
1998, p. 122, para. 20) and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility (Judgment, I.C.J. Reports 1984, pp. 428-429, para. 83). - 40 -
having been violated by the conduct of that other State, it is debarred from invoking a
compromissory clause in that treaty.” (Ibid., p. 428.)
22. Sir Robert Jennings voted with the majority on the meaning and effect of
ArticleXXXIV(2) of the 1956 Treaty; for him it was the only basis for jurisdiction. I will not
quote the passage from his judgment which is well known ⎯ just the final sentence: “In short it
appears to be intended to do no more than to ensure that disputes that have already been adequately
dealt with by diplomacy, should not be reopened before the Court.” ( Ibid., Separate Opinion of
Judge Sir Robert Jennings, p. 556.) And that is a concern that other treaties have manifested. For
example, the Pact of Bogotá dispute settlement provision which you have had to consider in some
cases.
23. Sir Robert’s words apply equally to our Ar ticle22. All that is required [by Article22,
like ArticleXXXIV(2)] is that the claims shall not have been settled by negotiation (or the
procedures expressly provided for in the Convention). They have not been so settled.
24. Professor Pellet made a valiant attempt to distinguish the Nicaragua case, on three
69
grounds . Actually, I thought there were two grounds, one of which was repeated twice, but it
does not really matter. First, he said the jurisdictional clause in Nicaragua was subjective, not
satisfactorily settled by diplomacy. But there is little difference between the two. It is not usual to
speak of a dispute being settled to the dissatisfaction of the parties. Then, he said that Sir Robert
Jennings’s opinion should be disc ounted because SirRobert failed to appreciate his first point,
about dissatisfaction; I have to say, I am with Si r Robert. Finally, he said that the FCN Treaty of
1956 referred to settlement by diplomacy, whereas Article 22 refers to negotiation ⎯ negotiation is
a synonym for diplomacy in an inter-State context ⎯ and to the procedures provided for in the
Convention which, as I have shown, are merely a very elaborate framework for diplomacy. So
none of Professor Pellet’s distinctions works.
25. There is, with all respect, no reason why the Court should abandon its earlier
70
jurisprudence . The ordinary meaning of Article XXXIV (2) was clear to you in 1984 and did not
require any reference to the negotiating history of the FCN Treaty. This is equally the case for this
Convention. As in 1984, the question for the Court is simple: has the dispute between Georgia and
69
CR 2010/8, pp. 50-51, para. 29.
7United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, p. 3. - 41 -
Russia ⎯ if there is a dispute ⎯ concerning ethnic cleansing and the right to return of internally
displaced persons been settled by negotiation or the procedures explicitly provided for in the
Convention? The answer to that question is plainly no.
26. In an attempt to reopen the Court’s 1984 judgment, Russia invokes a series of unrelated
judgments rendered in circumstances materially different from the present one.
27. For example it invokes the Oil Platforms case (Oil Platforms (Islamic Republic of Iran v.
United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 , p. 803). And in
that case neither party contested the fact that there had been an effo rt to settle the dispute, so the
Court did not need to elaborate on the meaning and effect of the dispute settlement clause. It cites
71
the ELSI case , despite the fact that the jurisdiction of the Chamber there was not in dispute.
28. And it places heavy reliance on the Armed Activities case, (Democratic Republic of the
Congo v. Rwanda) , the renewed Application. There Rwanda argued that the conditions in
Article75 of the WHO Constitution were cumulative and the Court in a brief passage seems to
72
have accepted that view . But in Armed Activities , the Court did not need to decide on the
meaning of “or” in the jurisdictional clause. Unlike here, the DRC failed to present any evidence
whatever of negotiations, or even of a dispute, or of the articulation of a claim that would be
covered by the WHO Constitution. That was a ca se where the Applicant relied after the event on a
wide range of treaties, none of which had any obvious relevance to the underlying issues. Indeed,
if the WHO had concerned itself with the legality as such of the armed conf lict in the Congo, it
would have been acting ultra vires , as you held it was doing when it concerned itself with the
legality as such of the use of nuclear weapons. Your primary finding in Armed Activities ⎯
unquestionably correct ⎯ was that the DRC completely failed to produce any evidence that the
case was one “concerning the interpretation or application of the WHO Constitution on which itself
and Rwanda had opposing views, or that it had a dis pute with that State in regard to this matter”,
paragraph 99 of the Judgment. You went on to note in the alternative, and briefly, that “the other
preconditions for seisin of the Court established by” Article 75 had not been shown to be satisfied
71
Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 15.
7Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction of the Court and Admissibiliof the Application, I.C.J.Reports2006 , para.100 (in relation to
Article 75 of the WHO Constitution). - 42 -
(para.100). They certainly had not. But three comments are in order. First, the facts did not
remotely cross any threshold for a dispute imp licating the WTO Constitution any more than the
other treaties artificially relied on by the DRC. As Professor Greenwood as he then was, counsel
for Rwanda noted, the central claim was one of a ggression: “an allegation which could not on any
analysis fall within the jurisdictional provisions of any of the treaties on which the Congo relies”
(CR 2005/17, (Greenwood)). Secondly, that illusory claim concerned the constitution of an
international organization and the competence of its chief political organ, the World Health
Assembly. Thirdly, there was no equivalent in the WHO C onstitution to Article 16 of the CERD.
For these and other reasons, the dictum in paragraph100 of the Armed Activities Judgment is not
decisive of the present case.
29. Finally, Russia relies upon jurisprudence of the Law of the Sea Tribunal. What it fails to
mention is that Article283, paragraph1, of the Law of the Sea Convention (UNCLOS) does
stipulate negotiation as a precondition:
“When a dispute arises between States Parties concerning the interpretation or
application of this Convention, the parties to the dispute shall proceed expeditiously to
an exchange of views regarding its settlement by negotiation or other peaceful
means.”
That is perfectly clear. But the Tribunal has consistently interpreted this much stronger wording of
73
the obligation to negotiate as not mandatory. The Tribunal in the Straits of Johor case rejected
Singapore’s contentions that the requirements of Article 283 were a precondition to the activation
74
of Part XV compulsory dispute settlement procedures based on the consideration, “that in fact the
parties were not able to settle the dispute or agree on a means to settle it” 75. That as a matter of
fact. And further:
“the Tribunal has held that ‘a State Party is not obliged to pursue procedures under
Part XV, section 1, of the Convention when it concludes that the possibilities of
settlement have been exhausted’ ( Southern Bluefin Tuna Cases, Order of
76
27 August 1999, paragraph 60)” .
73Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore),
Provisional Measures Order, 8 October 2003, ITLOS, Case No. 12.
74
Ibid., para. 34.
75
Ibid., para. 46 (emphasis added).
76Ibid., para. 47. - 43 -
30. Both these considerations are valid a fortiori for the interpretation and application of the
much softer reference to negotiation and other procedures in Article 22.
Mr. President, I have got about ten minutes to go before I get to my next main topic. I am in
your hands.
The PRESIDENT: You can proceed, Professor Crawford.
Mr. CRAWFORD: Thank you.
(c) Convergent interpretation of the authentic language texts
31. I turn to the convergent interpretation of the authentic language texts. ProfessorPellet
made quite a lot of this yesterday, although he did not exhaust the official languages of the
United Nations. I am reliably informed that in all the official languages of the United Nations there
is apparently no official text in Arabic; at least we could not find one. But I am reliably informed
they all mean effectively the same thing. He does rely, however, on the French and Russian.
Neither of them provide Russia with any assistance. The use of the future perfect tense in French,
“qui n’aura pas été réglée ”, merely indicates that prior to the seisin of the Court the dispute
between the Parties should not have been settled. The French text says nothing about any
obligation to have engaged in pr ior negotiations or to have invok ed other procedures; and it does
not indicate one way or the other anything as to their formality or scope.
32. Similarly, I am reliably in formed that the Russian words ⎯ and I will not try to
pronounce them out of respect for my opponents ⎯ refer to the Russian past passive participle of
the verb to settle, whose function is precisely to characterize the dispute as one which has not been
settled in the past. Its use in conjunction with the word “ katorui” underlines that the sentence is in
past perfect tense. Finally, the Russian word “putiom ” in the formula may literally be translated as
“by way of” ⎯ “ par voie de ” in French ⎯ and merely refers to one amongst various ways in
which the dispute may be resolved. So there is no assistance to be gained from the other language
texts.
33. To conclude, the elaborate network of procedural obligations and prerequisites which the
Respondent tries to build upon the simple language of Article 22 fails. In accordance with the plain - 44 -
language of Article 22, the only question for the Court is whether there exists a dispute which is not
settled by negotiation ⎯ the normal method of settling international disputes ⎯ orbyte
procedures expressly provided as options in the Conv ention. Mr. President, that would be a useful
moment to break, because I am going on to the cumulative alternative argument.
The PRESIDENT: Thank you, Professor Crawfo rd, for your suggestion. The Court also
thinks that it is about time that we have a short break of 15 minutes until a quarter to 12.
The Court adjourned from 11.30 to 11.45 a.m.
The PRESIDENT: Please be seated. Yes, Professor Crawford, you may now proceed.
Mr. CRAWFORD:
V. The meaning of “by negotiation or by the procedures expressly provided for
in this Convention”
34. Mr.President, Members of the Court, I turn to my third point, responding to Russia’s
argument that the forms of settlement mentioned in Article22 of the Convention are cumulative.
Notwithstanding the ordinary meaning of the te xt, Russia asserts that the “conjunction ‘or’
[between “negotiation” and “the procedures e xpressly provided”] does not express alternatives but
77
rather cumulative conditions” .
(a) Ordinary meaning of the conjunction “or”
35. [Start slide2.] One might start by observing that “or” in Article22 means “or”. I put
Article 22 back on the screen, this time with th e conjunctions highlighted. You will note the care
taken over the conjunctions. In its English version Article 22 is a long sentence of 65 words, with
five subordinate phrases, each carefully drafted an d punctuated. The word “or” appears three
times. Russia suggests that we replace that conjunc tion, third occurring, with “and”. But it clearly
means what it says on the other two occasions: “two or more States Parties”, “the interpretation or
application”. Why not on the third occasion? Negotiations may make it clear beyond peradventure
that a dispute cannot be settled: why in such a case should the injured State be forced to undergo
77
POR, para. 4.59. - 45 -
the fruitless, time-consuming, non-binding procedures of PartII of the Convention? My story of
State A and State B illustrates that point exactly.
36. In short, whether or not there is a precondition to access to the Court, the drafters treated
“negotiation” and “the procedures expressly provided for in this Convention” as alternatives. [End
slide 2.]
37. Professor Pellet suggested that unless the procedures of the CERD Committee were
mandatory, it would be rendered w ithout authority to preserve and e nhance the application of “its”
Convention. The treaty bodies, as it were, own the Convention, despite the fact they are not courts.
If this were true, however, all treaty bodies would lack authority. In most cases they are not even
referred to in the relevant compromissory clause: this is true, for example, of the Committee
Against Torture, the Committee on the Elimina tion of Discrimination Against Women and the
Committee on Migrant Workers. In no case that we have been able to find, un
der any other human
rights treaty which has both a treaty body and a jurisdictional clause referring to this Court or to
arbitration, is exhaustion of treaty body procedur es a prerequisite to reliance on the jurisdictional
clause. None of the eight multilateral treat ies establishing human rights treaty bodies makes
exhaustion of their non-binding procedures mandatory, or subordinates this Court’s jurisdiction to
78
those procedures . In the case of the most important of those committees, the Human Rights
Committee, Article44 of the ICCPR expressly preserves other means of dispute settlement,
including resort to this Court; yet this has not affected the status of the Human Rights Committee.
38. Likewise Mr.Wordsworth lamented that the CERD Committee’s procedures will
become obsolete if this Court asserts jurisdiction. But you have already provisionally asserted such
jurisdiction in 2008, without protest from the Committee and without observable effect on it’s
status, except possibly to enhance it. (I note in pa renthesis that what is obsolete is the elaborate
procedure laid down in CERD’s Articles 11-13, which has never been used, and for good reason, as
we have seen.)
7Viz., Human Rights Committee (ICCPR, Art. 44): ESCR Co mmittee (no I.C.J. dispute settlement clause);
CERD Committee (CERD, Art. 16); CEDAW Committee (CEDAW, Art.29, arbitration, or I.C.J. if no agreement);
Committee against Torture (CAT, Art. 30, arbitration, or I. C.J. if no agreement); Committee on Rights of the Child (no
dispute settlement clause); Committee on Migrant Workers (International Convention on the Protection of All Migrant
Workers and Members of Their Families, Arts. 78, 92, priority given to arbitration, or I.C.J. if no agreement); Committee
on the Rights of Persons with Disabilities (no judicial dispute settlement clause). - 46 -
(b) The systematic interpretation of Article 22 in the context of the Convention
39. Russia fails to consider Article 22 in its context. The dispute settlement clause is located
in Part III of the Convention, which is clearly separated from Part II governing the functioning of
the Committee.
40. As we have seen, Article11, which is in Part II, establishes a distinct procedure; a
complaints procedure for referral of “matters” not limited to disputes. The outcome of its
Application is not binding, in contrast to the compulsory dispute settlement in Article 22.
41. Mr. President, Members of the Court, there must be some principle that when there is a
potential conflict between a specialist non-court and a court, and in particular the principal judicial
organ of the United Nations, the compromissory clau se is to be interpreted so as to preserve the
jurisdiction of the court.
42. The step-by-step requirements imposed by Articles 11 and 12 ⎯ which establish, as we
have seen, detailed preconditions ⎯ the 12-step process to the exercise of procedural rights ⎯
stand in sharp contrast to the failure of the drafters to impose similar requirements in relation to the
exercise of rights under Article 22.
43. Part II of the Convention contains a further cl ause that is of material significance. [Start
slide 3.] Article 16 of the Convention provides as follows:
“The provisions of this Convention c oncerning the settlement of disputes or
complaints shall be applied without prejudi ce to other procedures for settling disputes
or complaints in the field of discrimination laid down in the constituent instruments of,
or conventions adopted by, the United Nations and its specialized agencies, and shall
not prevent the States Parties from having recourse to other procedures for settling a
dispute in accordance with general or speci al international agreements in force
between them.”
That, incidentally, is another long sentence, 77 words, six subordinate clauses or phrases; once
again, the word “or” means “or”, the word “and” means “and”.
44. Article 16 is located at the very end of Part II of the Convention, thus encompassing the
schemes established by Articles 11, 12 and 14. It ma kes it clear that the drafters of the Convention
did not want to make these complaint procedures a precondition to the use of any other procedures
that might be available outside the CERD. Article16 confirms that the procedures expressly
provided for in the Convention are not exclusive or exhaustive or compulsory. Take, for example,
a case in which a State had invoked the jurisdiction of this Court in relation to CERD under the - 47 -
Optional Clause in relation to another State Party to the Optional Clause. That jurisdiction would
be preserved by Article 16 because it would be jurisdiction laid down in the constituent instruments
of the United Nations, or it would be another procedure for settling a dispute in accordance with the
general international agreement in force between them. Can it possibly be suggested that this Court
would have jurisdiction under the Optional Clause in relation to the dispute, but not jurisdiction
under Article 22 of the Convention? It does not ma ke any sense. The language of Article 16, and
its location in Part II of the Convention, is incons istent with the claim that the Convention imposes
a hierarchy of remedies or that the Court may only be reached down the track, in the never-never
once all other remedies ⎯ if they are remedies at all ⎯ have been exhausted. [End slide 3.]
(c) Conclusion
45. In sum, the cumulative exhaustion of all inter-State and individual-to-State complaints
procedures which results from Russia’s line of reasoning would postpone indefinitely any recourse
to your Court. That interpretation would rende r Article22 wide open to abuse by recalcitrant
States. But, and I stress this, the cumulation point is absolutely critical to Russia’s position. It is
only if they can force us to use the lengthy and futile procedure of Part II that this case will go
away because whatever the position with respect to negotiation or notice, it now exists and if the
only condition is negotiation, we can start again. I refer to what the Court said in the Croatia v.
Serbia case in relation to futile procedures.
VI. The preparatory work of Article 22
46. Mr.President, Members of the Court, for th e sake of completeness and to confirm this
conclusion, I turn to the preparatory work of th e Convention. The two Parties tell a completely
different story with respect to the travaux. We have put the entire travaux in as an annex, and the
Court will read it for itself. What I will do is simply trace what our version of the travaux means
and you can decide it in due course. But, of course, you can only decide it to the extent that it is
necessary to resolve ambiguities or to confirm the meaning of the text. We say, to confirm the
meaning which flows from the ordinary interpretation of Article 22 in its context and in light of its
object and purpose. - 48 -
47. Article 22 has its roots in an entirely distinct process from that involved in constructing
the mechanism of the CERD Committee. All re ference to the Court was expressly removed from
that mechanism during the key debates of the Th ird Committee, despite protests from some of the
drafters. It was intended to be applied ⎯ that is, Article22 ⎯ without prejudice to other
procedures for settling disputes.
48. Article VIII of the working document on final clauses was prepared by the Commission
on Human Rights and entitled “settlement of disputes”. It was set out in a separate working paper
from the draft measures of implementation prepared by the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, where a conciliation procedure was first proposed by a
Mr.Ingles from the Philippines, on whom Professor Pellet placed considerable reliance. [Start
slide 4.] In contrast, it was the Commission on Human Rights that put forward suggestions for four
alternative drafts of what became the compromissory clause. Contrary to the claim by the Russian
Federation 7, this article stood apart from the concilia tion mechanism long before it reached the
Third Committee. Proposals 8A and 8B on the screen, were identical, they refer to “any
dispute... which is not settled by negotiation.. . to be referred to the International Court of
Justice”. Proposal 8A, however, provided that any party might choose to engage the Court ⎯ that
was by unilateral application, whereas Proposal 8B envisaged seisin only through common consent
with the use of the word “all”.
49. Article8D envisaged a mandatory process of dispute resolution, with strict
preconditions for the jurisdiction of the Court. The parties to a dispute were required ⎯ by the use
of the word shall ⎯ first to consult together to settle the dispute by a peaceful means of their
choice. Subsequently, any dispute which could not be settled “in the manner prescribed” was to be
referred to the Court for decision. That is the origins of the compromissory clause Article 22.
50. The text on conciliation presented to the 1349th meeting of the Third Committee aimed
80
at satisfying as many States as possible. The joint text of the working group , as the representative
from Ghana stressed when presen ting it to the Committee, “ did not contain any clause concerning
79
Preliminary Objections of Russia, para. 4.64.
8A/C.3/L.1291. - 49 -
81
intervention by the ICJ, for which provision could be made in the final clauses ” . The working
group had thus removed the Philippine’s specific pr oposal that if the conciliation procedure failed,
unilateral recourse could then be had to this Court, preferring to leave this, as was normal, to the
final clauses rather than clash with what was included in the proposals. [End slide 4.]
51. Now this development of the conciliation provi sions is not to be confused with the final
82
clauses text later produced by the working gr oup of the Officers of the Third Committee . Russia
falls precisely into that confusion in paragraph 4.28 of its Preliminary Objections. The final
clauses text was intended ⎯ as the conciliation procedures were not ⎯ to provide separately for
involvement of this Court. It was particularly noted in the final clauses text that these articles were
“self contained and referred to articles within themselves ” 83. This provides further support for
Georgia’s view that the mechanisms provided for under the Convention, in Part 2, on the one hand,
and the right of recourse to the International Court on the other hand, were separate and distinct.
52. Indeed, it is clear that a conscious decision was taken by the drafters of the new
implementation measures text to keep the conciliation process wholly separate from the question
of this Court’s jurisdiction. That they were seen as separate issues is explicitly underscored by the
comments of the Belgian delegate to the effect “that he supported both the idea of setting up a
Committee such as had been advo cated by the Philippines . . . and the idea of allowing recourse to
84
the ICJ” .
53. No inference can be drawn from the travaux to the effect that recourse to the Court was
to be subject to the conciliation phase. The two sets of provisions emerged and were considered
and developed separately, and clear steps were taken by the sponsors to remove any suggestion that
the two sets of provisions were linked in any cu mulative way. When the representative of Ghana
came under pressure to reintroduce reference to this Court as an element of the conciliation
process 8, the effort was rebuffed. The representativ e of Ghana stressed the completeness of the
81A/C.3/SR.1349 p. 348, para 29.
82
A/C.3/L.1237.
83
A/6181, p. 35.
84A/C.3/SR.1349, p. 346, para. 6.
85A/C.3/SR.1345, p. 378, para. 53. - 50 -
86
procedure, noting that the final clauses provided in any event for unilateral seisin , so that a direct
link between the two was unnecessary.
54. Article by article, the implementation measu res were then considered and voted upon.
At the 1358th meeting, the Third Committee turned to the final clauses which were self-contained.
In the draft submitted by the Officers of the Th ird Committee, clause VIII almost exactly mirrored
the first proposal that had been put forward earlier ⎯ what had been article 8 A. [Start slide 5.]
55. Thus, the Officers of the Committee clear ly decided to reject Proposal8D of the
Secretary-General’s draft as a model, with its clear cumulative approach. Instead, they chose to
adopt a simple compromissory clause that was separate from and unconnected to the conciliation
process, in any organic way. [End slide 5.]
56. Nowhere was it stated that recourse to the Court was conditional upon previous attempts
to settle the dispute through the CERD machinery, and nowhere was it stated that negotiation and
recourse to the procedures under the Convention were cumulative. It was simply stressed that
unilateral seisin was very important for effective implementation, but that there were also many
other opportunities for alternative dispute resolution open to the parties 87. The approach taken was
not a simple one-way street for the range of op tions. Reference to the Court was not mandatory,
but it could be invoked at the instance of a single party to a dispute.
57. The three-power amendment put forward by Ghana, Mauritania and the Philippines and
referred to by ProfessorPellet yesterday, simply called for the deletion of the comma after
“negotiation” and then the insertion of the ne w text namely, “or by the procedures expressly
provided for in this Convention”. But that text was inserted in what was the Model 8A and not the
Model 8D.
58. This proposal was unanimously approved as a “useful addition” 88, whereas according to
the Respondent it transformed the character of the dispute settlement provision creating the
situation which I started this presentation with. By reminding the reader of the possibility of
pursuing negotiations or the CERD machinery before seising the Court ⎯ and without requiring it
86
A/C.3/SR.1354, p. 379, para. 54 and p. 376, para. 20.
87
See, for example, ibid., paras. 39 and 40.
8A/C.3/SR.1354, p. 454, para. 39. - 51 -
as Model 8D would have done ⎯ the clause served to remind the Parties of the various options for
dispute resolution in the matter of discrimin ation, without implying cumulative or other
preconditions to the right of recourse to your Court.
59. That proposal was ⎯ as it was stated at the time ⎯ based upon the Protocol to the
89
Convention against discrimination in education adopted by UNESCO , but it was not incorporated
into the final draft because, as the Polish delegate stressed, it was wholly unnecessary 90. The
91
reliance now placed by Russia on the statement of the Ghanaian delegate Mr.Lamptey that the
conciliation procedure must be used before recour se to the Court is misconceived: Ghana’s own
explicit proposal to that effect was not accepted, and Mr.Lamptey’s intervention only suggested
92
that the CERD machinery “should be used”, not that it had to be used .
60. In sum, the travaux confirm the interpretation of Article22 draw from its ordinary
meaning in context and in light of its object and purpose. In particular three things are clear. First,
negotiations and the CERD procedures are (a)not a prerequisite to the Court’s exercise of
jurisdiction, and (b)not cumulative requirements. Second, the Conciliation Commission was
envisaged as a useful addition to other procedures for dispute settlement, including your Court, and
not as a mandatory process. Third, the Court’s jurisdiction was considered as a self-contained issue
all the way from negotiations at the Sub-Commission through to the final drafting in the Third
Committee.
VII. Conclusion
61. Mr. President, Members of the Court, let me summarize:
(1) Article 22 does not include any mandatory preconditions to the seisin of the Court once there is
a dispute arising under the Convention, and Georgia was not under any obligation, once there
was such a dispute which had not been settled, to engage in formal negotiations to settle the
dispute, or to have recourse to the “procedures expressly provided for in [the] Convention”.
89
United Nations Economic and Social Council, Commission on Human Right s, Sub-Commission on Prevention
of Discrimination and Protection of Minorities, Summa ry record of 427th Meeting, UNdoc.E/CN.4/Sub.2/SR.427
(12 Feb. 1964), 12.
90
United Nations General Assembly, 20t h Session, Official Records, Anns., Report of the Third Committee,
UN doc. A/6181 (18 Dec. 1965), 38.
91POR, paras. 4.69, 5.42.
92Ibid., para. 4.69. - 52 -
(2) In any case, if there was a mandatory precondition, it was in the alternative and it was sufficient
that there was negotiation.
62. Mr. President, this concludes my presentation. I would now ask you to give the floor to
Professor Akhavan.
The PRESIDENT: I thank ProfessorJamesCrawford for his presentation. I now invite
Professor Payam Akhavan to take the floor.
Mr. AKHAVAN:
JURISDICTION UNDER CERD A RTICLE 22 ⎯ HISTORY OF NEGOTIATIONS
[R USSIA ’S SECOND PRELIMINARY OBJECTION ]
1. Mr. President, Members of the Court, it is an honour to appear before you again on behalf
of Georgia. With respect to the second prelimin ary objection, Professor Crawford has set forth our
view that Article22 does not establish any preconditi ons for the seisin of the Court. I shall now
show that even if Article 22 did require prior negotiations ⎯ as submitted by Russia ⎯ that such
requirement has been clearly satisfied by Georgia.
2. The question of what qualifies as negotiations is well-established. [Start slide1.] The
1924 Mavrommatis case, repeatedly invoked in the Court’s jurisprudence, put it as follows:
“Negotiations do not of necessity always presuppose a more or less lengthy
series of notes and despatches; it may suffice that a discussio93should have been
commenced, and this discussion may have been very short . . .” [End slide 1.]
3. To repeat, a “very short” discussion ma y be sufficient to satisfy the negotiation
requirement.
4. There can be no doubt, we respectfully submit, that the voluminous evidence of
negotiations offered by Georgia far exceeds what is required. I refer the Court to Chapter VIII of
Georgia’s Memorial and Chapter III of its Written Statement.
5. But for the sake of argument, let us accept ProfessorZimmermann’s assertion on this
preliminary objection, that Georgia is, as he sai d “re-writing diplomatic history”. Let us ignore
17 years of bilateral and multilateral negotiations with Russia on systematic discrimination against
93
Mavrommatis Palestine Concessions Case, Jurisdiction, Judgment, P.C.I.J., Series A, No. 2, 1924, p. 13. - 53 -
Georgian victims of ethnic cleansing. Even if such a generous allowance is made,
ProfessorZimmermann’s assertion that there have been no negotiations between Georgia and
Russia under CERD manifestly fails.
6. It is sufficient to consider, even in isolation from the long history of the dispute, the
diplomatic exchanges between the parties in the da ys immediately prior to the filing of Georgia’s
Application on 12 August 2008.
7. As Mr.Reichler explained, ethnic cleansing was an integral element of the full-scale
Russian invasion of 8August2008. On 9August, just three days prior to the Application,
PresidentSaakashvili of Georgia had specifica lly accused “Russian troops” of having “expelled
the . . ethnically Georgian population of South Ossetia” 94; conduct that is clearly prohibited under
CERD. The following day, on 10August, an emergency session of the Security Council was
convened at Georgia’s request. At that meeting, Georgia’s Permanent Representative repeated the
allegations of ethnic cleansing, referring to the Russian forces’ attempt to “exterminate the
Georgian population” 95.
8. He also reported that “the Georgian l eadership reached out overnight to the Russian
political leadership”, but that the Russian Preside nt had “refused to directly engage with his
Georgian counterpart in dialogue”. It was in this light that Georgia called upon the Security
96
Council for “an immediate diplomatic . . . initiative” .
9. In response, the Russian Permanent Representative to the United Nations stated as
follows: [start slide 2]
“With respect to the Permanent Representative of Georgia’s outrage that our
President had refused to speak with the Pr esident of Georgia. Excuse me, but what
97
decent person would talk to him now?” [End slide 2.]
10. Just two days later, Russia reiterated its refusal to negotiate with PresidentSaakashvili.
[Start slide3.] During a press conference, the Russian Foreign Minister, Mr.SergeiLavrov,
94Press Briefing, Office of the President of Georgia, “resident of Georgia Mikheil Saakashvili met foreign
journalists” (9 Aug. 2008); WSG, Vol. IV, Ann. 184.
95United Nations Security Council, 5953rd Meeting, UN doc.S/PV.5953 (10 August 2008); WSG, Vol.III,
Ann. 96.
96Ibid.
97Ibid. See also, “The Russian President refused to speak with Saakashvili” Pravda (11 Aug.2008); WSG,
Vol. IV, Ann. 206. - 54 -
disputed Georgia’s ethnic cleansing allegations an d repeated that Russia refused to speak with
President Saakashvili, let alone negotiate with him. He stated as follows:
“I do not think that Russia 98ll have the mindset not only to negotiate, but even
to speak with Mr. Saakashvili.” [End slide 3.]
11. Mr.President, Members of the Court, the statements of these senior Russian officials
leave no doubt whatsoever that Russia harboured no willingness to negotiate. Quite obviously,
neither the diplomatic overtures that I have mentioned, nor any other negotiations between Georgia
and Russia during this period put an end to the et hnic cleansing, which expanded in the days that
followed. Thus, even if the long diplomatic history of the dispute is disregarded as
Professor Zimmermann wants, Russia’s post-in vasion diplomatic posture, including most
prominently its refusal to negotiate with Georgi a’s President, satisfies any conceivable negotiation
precondition under Article 22, assuming that such a requirement exists.
12. This view is consistent with this Court’s Provisional Measures Order of
15October2008. Based on the limited requireme nt that there be, and I quote from the Order
“some attempt . . . to initiate . . . discussions on issues that would fall under CERD”, the Court held
that not only had disputes under the Convention b een “raised in bilateral contacts between the
Parties” and “not resolved by negotiation prior to the filing of the Application,” but that the “same
issues” were raised by Georgia in “representations to the United Nations Security Council in the
days before the filing of the Application”. These representations, the Court found, were
“commented upon by the Russian Federation”, but no diplomatic resolution was achieved 9.
13. The Court was thus satisfied at the pr ovisional measures phase that the requirements of
Article 22 had been satisfied. Russia’s recent plea dings, we submit, have not given the Court any
reason to deviate from its earlier decision. On the contrary, the significant additional evidence
submitted by Georgia in its Memorial and Writt en Statement fully reinforces the Court’s
conclusions concerning Article22. These include a long history of bilateral and multilateral
98Ministry of Foreign Affairs of the Russian Federation, Transcript of Remarks and Response to Media Questions
by Russian Minister of Foreign Affairs Sergey Lavrov at Joint Press Conference After Meeting with Chairman-in-Office
of the OSCE and Minister for Foreign Affairsof Finland Alexander Stubb, Moscow, August 12, 2008 (12 Aug.2008)
(emphasis added); WSG, Vol. IV, Ann. 187.
99Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation) , Provisional Measures, Order, I.C.J. Reports, 2008 ,
para. 115. - 55 -
discussions and diplomatic exchanges with Russia concerning discriminatory human rights
violations against ethnic Georgians. By any measure, these satisfy the simple Mavrommatis
standard of what constitutes negotiations.
14. As early as the June1992 Sochi Agreement ⎯ signed by PresidentShevardnadze and
President Yeltsin ⎯ the parties negotiated an agreement to ensure “respect for human rights and
100
fundamental freedoms, as well as the rights of ethnic minorities” . Furthermore, the negotiations
produced an agreement to require the “creation of proper conditions for the return” of people who
101
had been ethnically cleansed .
15. These negotiations, and others like them, were plainly related to disputes falling under
the Convention, although evidently, they failed to achieve an effective settlement. Shortly after, for
example, in September1992, the Presidents of Ge orgia and Russia negotia ted another agreement
that in clear terms “reaffirm[ed] the need to r espect international standards in the area of human
rights and national minorities” and to “prevent discr imination based on nation ality, language or
religion” 102. This document is found at Annex45, Vo lumeIII of Georgia’s submissions. The
agreement required further appropriate “conditions . . . for the return of refugees to their permanent
103
homes” .
16. Bilateral negotiations also resulted in the Protocol of Negotiations between the
Government Delegations of the Republic of Georgia and the Russian Federation , signed on
9April1993 by the Prime Minister of Georgia and the Defence Minister of Russia. Following
Georgia’s accusation the week before that ethnic cleansing in Abkhazia was Russia’s “full
104
responsibility” , the Protocol specifically required Russia to “undertake . . . effective measures”
to “prevent infiltration” into Abkhazia of “illegal military formations, individuals and weapons and
100
Agreement on Principles of Settlement of the Georgian-Ossetian Conflict (24 June 1992); MG, Vol. III,
Ann. 102.
101Ibid.
102United Nations Security Council, Letter dated 8 September 1992 from th e Chargé D’Affaires A.I. of the
Permanent Mission of the Russian Federation to the United Nations Addressed to th e President of the Security Council,
Annex, UN doc. S/24523 (8 Sep. 1992); WSG, Vol. III, Ann. 45.
103Ibid.
104Appeal of the Parliament of Georgia to the UnitedNations, Conference on the Security and Cooperation in
Europe, International Human Rights Organizations (1 Apr. 1993); WSG, Vol. IV, Ann. 125. - 56 -
105
ammunitions” , an obligation that was intended to ma ke Russia cease facilitating the transit of
such forces and material from its territory into Abkhazia in furtherance of ethnic cleansing.
ProfessorZimmermann suggested that such agre ements do not relate to matters falling under
CERD but any appreciation of the context woul d clearly demonstrate that preventing such
infiltration was directly related to the ongoing ethnic cleansing in Abkhazia. The agreement also
106
required “conditions for the return of ref ugees to their places of permanent residence” . And the
Agreement further stipulated that th ese issues required further “negotiations” ⎯ the word
107
“negotiations” ⎯ between “Georgia, Abkhazia and Russia” , Russia being specifically
mentioned as a party to the Agreement.
17. It is evident that Russia was a direct pa rty to these negotiations with respect to disputes
falling under CERD. A further example is the allegation of PresidentShevardnadze in
September 1993 before the United Nations Security Council that the ethnic cleansing in Abkhazia,
which was then ongoing, was “achieved with the direct support and complicity” of Russian
forces 108. PresidentShevardnadze specifically repor ted: “My talks with GeneralGrachev,
Minister of Defence of the Russian Federation, yielded no results.” 109
18. Of course, ProfessorZimmermann contends that all these examples are irrelevant
because they fall outside the ratione temporis of the Court in so far as Georgia only acceded to
CERD in 1999. My colleague ProfessorSands will explain why this argument is untenable. It
should be noted nonetheless that the evidence is also replete with instances of negotiations
concerning matters falling within CERD subsequent to 1999 ⎯ should there be any doubt.
19. For example, negotiations produced an ag reement, signed by Georgia’s State Minister
and Russia’s Deputy Prime Minister, in Decemb er2000, to “create conducive conditions” for the
“return of refugees and internally displaced persons” by creating an “Inter-Governmental
105
Protocol of Negotiations between th e Governmental Delegations of the Republic of Georgia and the Russian
Federation (9 Apr. 1993); MG, Vol. III, Ann. 105.
106
Ibid.
10Ibid.
10United Nations Security Council, Letter dated 20 September 1993 From the Permanent Representative of
Georgia to the United Nations Addressed to th e President of the Security Council, Annex , UN doc. S/26472
(20 Sep. 1993); WSG, Vol. III, Ann. 48.
10Ibid. - 57 -
program” ⎯ with the involvement of both Georgia and Russia ⎯ “of repatriation, accommodation,
integration and re-integration of refugees” 110. These negotiations be tween Georgia and Russia
clearly related to matters under CERD, including the right of return under Article 5.
20. On another occasion, in July 2002, the S ecretary of Georgia’s National Security Council
negotiated with his Russian counterpart over Russia ’s denial of the right of return of ethnic
Georgians. The Parties’ Joint Statement stated that the two sides had “stressed the importance” of
“agreeing on measures” to “secure” the “return of the refugees to their places of residence”, in this
case to the Gali District in Abkhazia 111.
21. [Start slid4e.] On still anot her occasion, this time in Marc2 h003,
PresidentShevardnadze and PresidentPutin negotiated over what the Parties’ Concluding
Statement referred to as “the most burning problem” , namely the “dignified and safe[] return of
112
refugees and internally displaced person” . They agreed that “all the efforts should be devoted”
to the “return of refugees and internally displaced persons” to Gali 113. These discussions plainly
concerned issues under CERD, specifically Article 5. Should ProfessorZimmermann argue that
these were merely what he described as “c ontacts” that do not qualify as negotiations under
Article 22, I refer the Court to the Concluding Stat ement that expressly refers to the discussions as
114
“negotiations” . This is found at Annex136 in VolumeIII of Georgia’s Memorial. [End
slide 4.]
22. In later negotiations, Georgia proposed a “compromise” under which Gali would be
administered by a Joint Provisional Administration under the aegis of international organizations,
which would oversee the return of ethnic Georgians 115. Russia refused. Indeed, a negotiating
110Agreement between the Government of Georgia and the Government of the Russian Federation on Cooperation
in Restoration of Economy in the Georgian-Ossetian Conflict Zone and Return of Refugees, Tbilisi (23 Dec. 2000); MG,
Vol. III, Ann. 131.
111Joint Statement, Secr etary of the National Security Council of Gorgia, T. Japaridze and Secretary of the
National Security Council of the Russian Federation, V. Rushailo (11July 200 2) (emphasis added); WSG, Vol. IV,
Ann. 151.
112Concluding Statement on the meetings between Mr.Vladimir Putin, President of the Russian Federation and
Mr. Eduard Shevardnadze, President of Georgia, Svobodnaya Gruzia, No. 60 (12 Mar. 2003); MG, Vol. III, Ann. 136.
113Ibid.
114Ibid.
115
Information Note prepared by the Ministry of Foreign Affairs of Georgia (20Jan. 2004); WSG, Vol. IV,
Ann. 155. - 58 -
session was cancelled, due to, in the words of Georgia’s Foreign Ministry, “the differences between
116
the Georgian and Russian sides over the mode of negotiations” . Georgia’s view was that the
“agreement on the conditions of safe return of re fugees was to be reached first between Georgia
and Russia”, that is, Georgia and Russia should negotiate bilaterally. Russia, however, “insisted on
117
the presence of the Abkhaz side” . In short, Georgia wanted to negotiate with Russia, but Russia
refused.
23. Another example is from April2004. Shortly after PresidentSaakashvili declared that
118
“Russian troops” were responsible for ethnic cleansing in Abkhazia , Georgia’s State Minister
told his Russian counterpart that Georgia expected “concrete results” regarding the return of ethnic
119 120
Georgians . Georgia made specific proposals, incl uding their return to the Gali district . The
failure of these negotiations is clear from not es of subsequent negotiations between Georgia’s
Ambassador in Moscow and Russia’s Deputy Minist er of Foreign Affairs in October 2004, which
show that Georgia had to repeat that “real pr ogress concerning the return of IDPs” remained
“essential” 121.
24. Another example relates to the intensifica tion of bilateral negotiations in June2008.
[Start slide 5.] In a letter dated 23 June 2008, to which both the honourable Agent of the Russian
Federation and ProfessoZ rimmermann made re ference, PresidenS taakashvili wrote to
PresidentMedvedev requesting that Russia withdraw its forces ⎯ which Georgia had accused of
ethnic discrimination, including preventing the return of victims of ethnic cleansing ⎯ from parts
of Abkhazia populated by the few remaining Georgians 122. PresidentMedvedev refused. After
meeting with the Russian President later that m onth, President Saakashvili reminded him they had
116Information Note prepared by the Ministry of Foreign Affairs of Georgia (20Jan. 2004); WSG, Vol. IV,
Ann. 155.
117Ibid.
118“Ask Georgia’s President, BBC News (25 Feb. 2004); WSG, Vol. IV, Ann. 198.
119
Minutes of the Meeting Between the State Minister, Mr . G. Khaindrava and the Deputy Minister of Foreign
Affairs of the Russian Federation, Mr. V. Loshinin held on 27 Apr. 2004 (27 Apr. 2004); WSG, Vol. IV, Ann. 156.
120
Ibid.
121
Information Note: Concerning the meeting of Am bassador of Georgia in Russian Federation,
ValeriChechelashvili and the First Deputy Foreign Affairs Minister of the Russian Federation, Mr.V.Loshinin
(21 Oct. 2004); WSG, Vol. IV, Ann. 157.
122
Letter from President Mikheil Saakas hvili to President Dmitry Medvedev (23 June 2008); MG, Vol. V,
Ann. 308. - 59 -
agreed to organize the “[s]afe and dignified retu rn of refugees and IDPs”, proposing that they
“draft[], sign[] and enter[] into force” agreements addressing the right of return 123. Russia’s
President refused, saying it was “untimely to put the question of return of refugees in such a
124
categorical manner” . This is a decade and a half after th e displacement of this population. [End
slide 5.] Disregarding this obvious context, Professor Zimmermann argued that this letter is not an
attempt to negotiate under CERD because it does not accuse Russian p eacekeepers of ethnic
discrimination against Georgians 12. But as Mr. Reichler explained, denial of the right of return is
clearly an issue under CERD.
25. To these instances of bilateral negotia tions may be added the numerous multilateral
negotiations under the auspices of a variety of di fferent institutions, including the Joint Control
Commission, the Commonwealth of Independent St ates, the OSCE and the United Nations, where
Georgia also negotiated with Russia to resolve disputes that fall under CERD, including once again
the right of return for the victims of ethnic cleansi ng. This is set out in the Memorial and Written
Statement. Today, I will confine myself to commenting on Georgia’s diplomacy at the United
Nations, and will give two brief examples.
26. In August2006, Georgia addressed a letter to the Secretary-General of the
UnitedNations and to the Security Council stating that “Russian peacekeeper s continue to act in
defiance of their mandated obligations, turning a bl ind eye to gross violations of law and human
rights taking place in their very presence” 126. Georgia clearly sought, by involving the United
Nations, to resolve this dispute with Russia c oncerning its failure to prevent discriminatory
violations of human rights as required by CERD. It specifically called upon “the CIS peacekeeping
forces and their leadership” to ta ke action to prevent such abuses 127. On another occasion, also in
123
Letter from President Mikheil Saakas hvili to President Dmitry Medvedev (23 June 2008); MG, Vol. V,
Ann. 308.
124Letter of President Dmitry Medvedev of the Russian Federation to President Mikheil Saakashvili of Georgia
(1 July 2008); MG, Vol. V, Ann. 311.
125CR 2010/8 (13 Sep. 2010), p. 62, para. 10 (Zimmermann).
126United Nations General Assembly, Security Council , Identical letters dated 11 Aug.2006 from the Chargé
d’affaires A.I. of the Permanent Mission of Georgia to the United Nations addre ssed to the Secretary-General and the
President of the Security Council, Ann., UN doc. A/60/976-S/2006/638 (14 Aug. 2006); WSG, Vol. III, Ann. 83.
127Ibid. - 60 -
2006, Georgia represented to the United Nations Ge neral Assembly that the presence of Russian
peacekeepers had resulted in “permanent attempts to legalize the results of ethnic cleansing” 128.
27. Faced with this evidence ⎯ and much more ⎯ of Georgia’s longstanding attempts to
negotiate through multilateral fora, Professor Zimme rmann adopted an extremely narrow approach
to what qualifies as negotiations, going so far as to claim that diplomatic discussions, even when
done for the explicit purpose of resolving a di spute under the Conventio n, cannot constitute
negotiations if they are conducted in a multilateral context. He asserted that only bilateral
negotiations could satisfy the requirements of Article 22 129.
28. To support this view, he argued that Georgia cannot rely on United Nations multilateral
negotiations in so far as the precedent in the South West Africa case is “crucially different” from
the present case 130. He clarified that this crucial difference lies in his assertion that, unlike Russia,
South Africa was deemed to be a “common adversary State”, which in his view qualified the
negotiations as “quasi-bilateral” 131 to quote ProfessorZimmermann in the specific context of that
case. But an examination of that passage at pa ge 346 of the Judgment, indicates that immediately
preceding it, the Court categorically states as follows: “[t]he number of parties to one side or the
other of a dispute is of no importance” 132. It is irrelevant. Furthermore, with respect to an asserted
difference between bilateral and collective negotia tions, the Court expressly stated as follows, in a
passage that I am sure Members of the Court are well familiar with:
“it is not so much the form of negotiation that matters as the attitude and views of the
Parties on the substantive issues of the question involved. So long as both sides
remain adamant, and this is obvious even from their oral presentation before the
Court, there is no reason133 think that the dispute can be settled by further negotiations
between the Parties.”
29. Finally, Mr.President, Members of the Court, I will repeat what my colleague
Mr.Reichler has already alluded to, that there is no basis for the assertion, that unless Georgia
128
United Nations General Assembly, Letter dated 24 July 2006 from the Permanent Representative of Georgia to
the United Nations addressed to the Secretary-General, Ann., UN doc. A/60/954 (25 July 2006).
129
CR 2010/8 (13 September 2010), p. 63, para.18 (Zimmermann).
130
Ibid., para. 14 (Zimmermann).
131Ibid., para. 15 (Zimmermann).
132South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, I.C.J. Reports 1962, p. 346.
133Ibid. - 61 -
specifically invoked CERD in its negotiations w ith Russia, that it cannot somehow satisfy the
requirements of Article22. This is plainly inco nsistent with the Court’s jurisprudence in the
Nicaragua case, which held that reference to a treaty in negotiations is not re quired to invoke its
compromissory clause if the subject-matter of the treaty was discussed, and, it is our submission
that Georgia has certainly done so with respect to its negotiations with Russia ( Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984 , pp. 428-429, para. 83). The Court’s
Provisional Measures Order specifically rejected that argument, holding that “the fact that CERD
has not been specifically mentioned in a bilateral or multilateral context is not an obstacle to the
seisin of the Court on the basis of Article 22” 134.
30. In summary, Mr. President, Members of the Court, Russia’s contentions concerning what
qualifies as negotiations finds no basis whatsoever either in the Court’s well-established
jurisprudence or in the evidence that is before th e Court. If Russia’s exacting standards were to be
accepted, it is difficult to see how any dispute could be adequately negotiated. By any measure,
even if Article22 requires negotiations as a precond ition to seisin by the Court, by any measure,
Georgia’s voluminous evidence has satisfied such a requirement.
31. That concludes my submissions, I thank you Mr. President and Members of the Court for
your kind attention. I now ask you to give the floor to my colleague, Professor Sands, to address
Russia’s third and fourth preliminary objections.
The PRESIDENT: I thank ProfessorPayamAkhavan for his statement. I now invite
Professor Philippe Sands to take the floor.
134
Provisional Measures, Order, para. 115. - 62 -
Mr. SANDS:
T HE C OURT HAS JURISDICTION RATIONE LOCI AND RATIONE TEMPORIS
[RUSSIA S T HIRD AND FOURTH O BJECTIONS ]
I. Introduction
1. Mr.President, Members of the Court, it is a privilege for me appear on behalf of the
Government of Georgia, and also to be able to extend on behalf of our entire team our personal
wishes to the Court’s distinguished new judges. Whether their presence be characterized as a small
step or a great leap for mankind or womankind, we think it is certainly a jolly good thing.
2. Mr.President, you have heard my colleagues and it remains for me to address the two
outstanding issues raised by Russia, namely its th ird and fourth preliminary objections. It might
appear that there is no longer a need for Georgia to dwell at any great length on the objections
based on matters territorial or temporal. For, as you heard from Ambassador Kolodkin yesterday,
the Russian Federation has cut them free from Russia’s case this week.
3. When these objections were first raised, in December 2009, Georgia took care to respond
carefully and completely to the third preliminary objecti⎯ on jurisdiction ratione loci ⎯ and
the fourth preliminary objection ⎯ on jurisdiction ratione temporis. It seems our response may
have had some effect: suddenl y and noiselessly, a bit like one of those houses that suddenly
disappears in the extraordinarily wonderful novel that is The Master and Margarita, the arguments
135
just magically “collapsed, [and] nothing was left” The only thing that was missing yesterday, to
paraphrase Mr.Bulgakov, was the trademark “cloud of black smoke” ⎯ there was none. The
magical consequence is that my speech this morning can be a great deal shorter than it was
originally expected to be. But it cannot be dispensed with altogether, as Russia’s concessions
necessitate some reactions from our side, if only to indicate our view on what the Court should now
do in respect of the two objections. And I will deal with each in turn.
II. Russia’s third preliminary objection: territory
4. Russia’s third preliminary objection was that the Court lacks jurisdicratione loci. In
our written statement we explained why this w as wrong and that the territorial scope of the
135
Mikhail Bulgakov, The Master and Margarita (Penguin, 1997 tr., Richard Pevear and Larissa Volokhonsky). - 63 -
1965 Convention was rather clear: namely, that Georgia is entitled to invoke the jurisdiction of the
Court in respect of Russia’s obligations unde r the 1965Convention where the acts for which
Russia is responsible occur or are felt upon the terr itory of Georgia, including in particular, South
136
Ossetia and Abkhazia .
5. In his speech yesterday AmbassadorKolodkin said “upon further reflection, we find that
137
this objection is not necessarily of an exclusively preliminary nature” . Russia seems to suggest
that the Court should join this jurisdictional objection to the next phase of the proceedings,
apparently because ⎯ while this was not said ⎯ it is so closely intertwined with the merits. We
disagree: the Court can, and we say, should dispose of this objection now.
6. Let me explain why. Russia’s argument in this regard was primarily based on the
assertion that there is, as it put it, a “position of general international law which provides that,
138
unless specifically indicated, treaty oblig ations only apply territorially” . According to Russia,
since there is no such provision in CERD, this Court can only have jurisdiction in respect of
Russia’s obligations relating to acts or omissions of Russian officials if they take place within the
territory of the Russian Federation. We made in our written statement, very clear our view that
argument lacks any merit whatsoever: there is simp ly no such general “pos ition” in international
law. Moreover, Russia’s claim is contradicted by your jurisprudence, most notably in your
Advisory Opinion in the Construction of a Wall (Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.Reports2004 , p.179) , in your
Judgments in 1996 in the Bosnia case ( Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II) , p. 616, para. 31), in 2005 in the DRC case (Armed
Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p.242-243, para.216), and in 2007, again in Bosnian Genocide (Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J.Reports2007, p.68). And Russia’s
13WSG, Chap. IV.
137
CR 2010/8, para. 31 (Kolodkin).
13POR, para. 5.9 (a). - 64 -
argument is also contradicted by the case law and practice of the United Nations Human Rights
Committee and the CERD Committee. We pointed out that Russia was inviting you to overturn
your settled case law, and we assume from their sile nce they have now decided that this was not a
139
sensible or wise thing to do .
7. In fact, as is absolutely clear, there is nothing about this argument that is remotely
connected to the merits. It is a legal argument, the interpretation of the Convention is a pure legal
issue, and has an “exclusively preliminary nature”. It does not fall within Ambassador Kolodkin’s
exhortation, and we take it that it has, in effect, been dropped, but without any black smoke.
Accordingly, and even if some might find the point to be of particular interest amongst us in the
room, there is no need for example to the Court to express a view or get into the merits or demerits
or meaning or effect of the Bankovic judgment of the European Court of Human Rights, on which
Russia largely relied for this argument ⎯ as we said in the written statement, it is not relevant to
this case. The approach taken by JudgeSirEli huLauterpacht in his Separate Opinion in the
Bosnian Genocide case must be right: it would be a “nonsense”, as he put it, for a State to be able
to escape the obligations of a global human rights convention to which all the relevant States are
party, and to escape the jurisdiction of the Court, just because the alleged violations for which
140
responsibility is said to occur were felt outside its territory of the State . So we take it that
Russia’s first and general argument is gone.
8. That leaves Russia’s second argument on jurisdiction ratione temporis . This was
originally put by way of alternative, it appears that it is now all that really remains. Russia
recognizes that the extraterritorial application of treaty obligations can arise, but according to
Russia there are only “two types of extraterritoria lity”: “first, acts taken by a State’s diplomatic
141
and consular authorities on foreign soil, and second, the effective control of a territory” .
Georgia responded to this argument, in some deta il, at paragraphs4.35 to 4.66 of our Written
Statement. It makes very clear that we disagree with Russia’s approach, and we do so on the basis
139
WSG, paras. 4.9-4.24.
140
Application of the Convention on the Prevention and P unishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Provisional Measures, Order, I.C.J. Reports 1993, p. 444, para. 114.
14POR, para. 5.50. - 65 -
of your consistent case law. Russia has been completely silent in failing to respond to anything we
said.
9. Indeed, what we said was that Russia has misread your jurisprudence. They say, for
example, in relation to what they call the “second type of extraterritoriality”, that: “A glance at the
Court’s jurisdiction reveals that it has accepted arguments based on ‘effective control’ only in very
narrowly defined scenarios, and, in particul ar, in situations of belligerent occupation” 142. Well, in
our submission, it is usually more productive and us ually reliable, not to glance at judgments, but
to actually read them. Judge Buergenthal has not only read them, he has helped write them, and he
recently summarized your jurisprudence on the extra-territoriality of global human rights
instruments, writing in an extra-judicial capac ity. As he puts it, in a recent article, the
extraterritorial reach of human rights treaties is not limited to occupied territories:
“That conclusion finds support, in the first place, in the Court’s language. Thus,
when the Court in Congo v Uganda concludes that international human rights
instruments are applicable to acts done by a State in the exercise of its jurisdiction
outside its own territory, it emphasizes that this is so ‘particularly in occupied
territories’. It is readily apparent that an extraterritorial exercise of jurisdiction can
fall under Article 2(1) [of the ICCPR] even if it takes place elsewhere than in occupied
territories.”143
10. Mr. President, that is this Court’s approach , and it is also adopted by other international
courts and tribunals and decision-making bodi es, including the United Nations Human Rights
Committee, the Inter-American Court of Hu man Rights (for example, in the case of Coard v.
United States 14) and the European Court of Human Rights (for example, in the case of Issa v.
145
Turkey ).
11. These authorities do not support Russia’s proposition as regards the two “exceptional”
grounds for extraterritorial application of the 196 5 Convention. So, whilst the parties now appear
to be in some agreement that the 1965 Convention can apply extraterritorially, they disagree as to
whether it does so in this case. So, what is the Court to do?
142
POR, para. 5.51.
143Thomas Buergenthal, “The ICJ, Human Rights and Extraterritorial Jurisdiction” in S. Breitenmoseret al.,
(eds.), Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber, 2007, pp. 147-148; WSG,
Vol. IV, Ann. 197.
144Coard et al. v. United States of America, Case 10.951, Report No. 109/99, IACHR (29 Sept. 1999), para. 37.
145Issa and Others v. Turkey, ECHR, Application No. 31821/96, Judgment (6 Nov. 2004), paras. 71, 76, 81, 82. - 66 -
12. In our submission, the correct approach is to reject Russia’s preliminary objection and,
by confirming your existing jurisprudence, recognize the principle that the 1965Convention
applies, in this case, to acts occurring or felt in Georgia 146. In the Advisory Opinion on The Wall,
you concluded the ICCPR is applicable in respect of “acts done by a State in the exercise of its
jurisdiction outside its own territory” ( Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory , Advisory Opinion, I.C.J. Reports 2004(I) , p.180, para.111). In
Armed Activities on the Territory of the Congo you adopted exactly the same formulation ( Armed
Activities (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005 , p. 243,
para. 216). And yesterday, as you heard, Russia did not assert any argument for a different
standard. In our submission y ou can and should maintain the st andard you have consistently
applied.
13. Accordingly, what we say is the 1965 Convention is applicable in respect of acts done by
Russia on its territory and in the exercise of jurisdiction on the territory of Georgia, including South
Ossetia and Abkhazia. The question of whether or not Russia has performed acts that engage its
responsibility under the 1965 Convention is, of course, a matter for the merits. But we see no need
to join to the merits an issue of settled law on an i ssue of jurisdiction. This limited matter is of an
“exclusively preliminary character”. It can be d ecided now, so that the Parties can rely upon your
well-established standard to prepare their arguments on the merits.
III. Russia’s fourth preliminary objection: time
14. I turn now to the fourth preliminary objection raised by the Russian Federation. In its
document of December 2009, this issue was put with considerable brevity and, it must be said,
confidence as to the arguments did not exactly le ap from the page. The objection is that the
Court’s jurisdiction is limited ratione temporis to “events having taken place after the entry into
force of CERD as between the Parties, i.e. to events which occurred after 2July1999” 14.
AmbassadorKolodkin did not say, as he did in respect of Russia’s third objection, that this
objection is “not necessarily of an exclusively preliminary nature” 148. He merely referred you to
14WSG, paras. 4.9-4.24.
147
POR, para. 1.33.
14CR 2010/8 (13 Sept. 2010), p. ;26, para. 31 (Kolodkin). - 67 -
149
the relevant pages of Russia’s preliminary objections . He did not invite you to defer the issue to
the merits phase. We agree that you can decide this now, and we say that you should do so.
15. We set out our detailed arguments on this objection in response in our Written Statement
at paragraphs5.1 to 5.25. In our submission, there can be no temporal objection to any of
Georgia’s claims as put to the Court.
16. Russia’s first point was that Georgia was arguing for a retroactive application of this
Convention. That is wrong: Georgia is not. Georgia has never asserted that the Convention
should apply retroactively. Georgia’s claim is mere ly that the Court is entitled to look at acts that
occurred prior to the date of the entry into force of the 1965 Convention for the two Parties. That it
is entitled to do and, indeed, the Russian Federation has done that in the course of this week; not
least because, in our submission, they produced continuing effects as at 2 July 1999. In our
submission, it is plain that they produce continuing effects. It has been described: more than
150
250,000 ethnic Georgians were forced out of South Ossetia and Abkhazia before July 1999 , and
each and every one of them has a continuing right of return under the 1965 Convention. The Court
is perfectly entitled to exercise jurisdiction over the question of whether Russia’s acts preventing
the exercise of the right of return of pre-1999 ethn ic Georgian internally displaced persons does or
does not violate the Convention. Such exercise of jurisdiction is entirely consistent with your case
law, for example, from the Inter-American Court of Human Rights. It is also entirely consistent
with the principle articulated in Article14, paragraph2, of the ILC’s Articles on State
Responsibility.
17. Russia’s second point on this preliminary objection was that Georgia was looking for
remedies in respect of events th at occurred prior to 2 July 1999 151. We explained in our Written
152
Statement why that is wrong . Again, Russia has nothing to say in response. We invite you to
draw the necessary conclusion as to its perception of the force of its own argument.
149
Ibid., para. 32.
150Human Rights Watch/Helsinki, Human Rights Watch Arms Project, Georgia/Abkhazia: Violations of the Laws
of War and Russia’s Role in the Conflict, Vol. 7, No. 7 (Mar. 1995), p. 43; MG, Vol. III, Ann. 146.
151POR, paras. 6.5-6.14.
152WSG, paras. 5.13-5.15. - 68 -
18. Russia’s third point was to the effect that the Court cannot deal with facts or events
subsequent to the filing of the Application, unless those facts are connected to those already within
the Court’s jurisdiction and their consideration w ould not transform the character of the dispute 153.
154
Georgia provided, again, a careful response to this point . Once again, Russia has nothing to say
in response. We can understand why Russia would not wish to embroil itself in this issue and why
it failed to do so on Monday: to engage with this matter now would cause it to emphasize a
consistent practice of ethnic discrimination that began in the early 1990s, continued after July 1999,
was reinforced in 2006 and 2007 and 2008, and extends and continues today. Russia’s
responsibility over time is manifested ⎯ in particular, but not exclusively ⎯ by the continuing
failure on the part of Russia to recognize and allow the rights of return of hundreds of thousands of
ethnic Georgians to their homes in South Ossetia an d Abkhazia. They allow Abkhaz to return to
their homes, and that is the nub of this case, about a situation of plain and blatant discrimination.
Russia’s continuing role has been confirmed by the 2009 Report of the European Union, to which
Russia professed such attachment yesterday. The EU Report describes in detail violence against
ethnic Georgians and their property before and after the 2008 ceasefire in South Ossetia and the
adjacent territories. It describes pervasive and continuing ethnic discrimination against ethnic
Georgians. It describes in detail Russia’s continui ng failure to prevent those acts, even when they
occur in the direct presence of Russian troops. A nd it describes the continuing failure of Russia to
take “appropriate measures to ensure that internally displaced persons and refugees, including those
from the conflicts of the early 1990s, are able to return to their homes with no conditions imposed
155
other than those laid down in relevant international standards” .
19. So we can quite understand why Russia woul d not wish to highlight these matters in this
hearing, by provoking a detailed discussion of what is going on right now, today, as I talk, in South
Ossetia and Abkhazia. Russia’s actions and its failures violate your Provisional Measures Order, as
we described in Chapter VI of our Written Statement on Preliminary Objections. Yesterday Russia
had nothing to say about its previous temporal objections. We invite you to conclude that this
153
POR, paras. 6.15.
15WSG, paras. 5.16-5.24.
15Independent International Fact-Finding Mission on the Conflict in Georgia, Report, Vol. I
(Sept. 2009), para. 28; WSG, Vol. III, Ann. 120. - 69 -
objection is, in effect, dropped, and to determine that you are entitled to look at the situation on the
ground, as it is today.
20. Before I conclude on temporal issues, I would like to respond to one point made by
ProfessorZimmermann, who raised a different temporal issue. Referring to correspondence from
Georgia to the Security Council dating back to 1993, he claimed that this document and others like
it, were “irrelevant . . . ratione temporis as originating from a period prior to the entry into force of
156
CERD as between the parties” . With respect, such documents are highly relevant, and you are
perfectly entitled to look at them, indeed we say you have to look at them to understand this story.
They provide incontrovertible evidence th at the dispute between Russia and Georgia ⎯ not
between Georgia and anyone else ⎯ on the issue of discrimination in respect of the ethnic
Georgians of South Ossetia and Abkhazia dates ba ck as long ago as to that period. The document
that Professor Zimmermann wants you to exclude ⎯ a Note Verbale from Georgia to the Security
Council no less, and many others from that period ⎯ make it abundantly clear this dispute is not
only about the events of the summer of 2008 ⎯ that is why they do not want you to look at those
documents ⎯, even if the events of the summer of 2008 did create conditions in which Georgia felt
bound to initiate legal proceedings to protect, such as it could, the right of ethnic Georgians. The
temporal element of this case is significant, but not in the way that ProfessorZimmermann
suggests. Like causes of action and disputes, time is not subject to neat pigeon-holes. The life of
international law is to be found in continuous interchanges, not in closed compartments; we are on
a highway, we are not in a cul-de-sac.
IV. Conclusion
21. Mr.President, Members of the Court, that concludes my presentation, and with it the
Republic of Georgia’s first round. We invite you to reject Russia’s third and fourth preliminary
objections at this stage, and to confirm that the Court is entitled to exercise jurisdiction over all of
the claims raised by Georgia. In so doing, we submit that you will be confirming the role of the
Court, the principal judicial organ of the United Nations, as the ultimate guardian of the rule of law
on these vital matters, and one that is able to act in a timely and immediate manner, as you did in
156
CR 2010/8 (13 Sep. 2010), p. 64, para. 19 (Zimmermann). - 70 -
respect of the provisional measures phase. To decline jurisdiction at this phase would send a signal
that the Court is not to be available when it is needed most on the issues of the greatest human
importance. I thank you, Mr. President, Members of the Court, for your kind attention.
The PRESIDENT: I thank you, Professor Philippe Sands, for your statement. Your
statement, indeed, brings to an end the first round of oral argument by Georgia. I wish to thank
each of the Parties for the statements presented in the course of this first round of oral argument.
The Court will meet again tomorrow from 4 p.m. to 6 p.m. to hear the second round of oral
argument of the Russian Federation. At the end of tomorrow’s sitting the Russian Federation will
present its final submissions. I recall that Georgia will then take the floor on Friday, 17 September
from 10 a.m. to 12 noon for its second round of oral argument and will present its final submissions
at the end of that sitting. Therefore, each Party will have a speaking time of two hours. I should
nevertheless like to remind both Parties that, pursuant to Article60, paragraph1, of the Rules of
Court, the oral proceeding presentations must be as succinct as possible. The purpose of the second
round of oral argument, I would add, is to enable each of the Parties to reply to the argument
advanced orally by the other Party in the fi rst round. The second round must not therefore
constitute a repetition of past statements. It ther efore goes without saying that the Parties are not
obliged to avail themselves of the entire time allowed to them.
Thank you. The sitting is adjourned.
The Court rose at 1 p.m.
___________
Audience publique tenue le mardi 14 septembre 2010, à 10 heures, au Palais de la Paix, sous la présidence de M. Owada, président, en l'affaire relative à l'Application de la convention internationale sur l'élimination de toutes les formes de discrimination raciale (Géorgie c. Fédération de Russie)