INTERNATIONAL COURT OF JUSTICE
Case Concerning Application
of the International Convention on the Elimination
of All Forms of Racial Discrimination
(Georgia v. Russian Federation)
PRELIMINARY OBJECTIONS
OF THE RUSSIAN FEDERATION
Volume I
1 December 2009 TABLE OF CONTENTS
(OUTLINE)
Chapter I – Introduction ................................................................................. 1
Chapter II – The real dispute ..........................................................................16
Chapter III – First preliminary objection: There is no Dispute between the
Parties regarding the Interpretation or application of CERD .........................39
Chapter IV – Second preliminary objection: The Procedural conditions of
Article 22 of CERD are not fulfilled ..............................................................80
Chapter V – Third preliminary objection: The Court lacks jurisdiction
ratione loci ..................................................................................................... 182
Chapter VI – Fourth preliminary objection: the Court‘s jurisdiction is
limited ratione temporis .................................................................................231
Chapter VII – Conclusions .............................................................................238
Submission ..................................................................................................... 240
Certification and Table of annexes ................................................................ 242
i TABLE OF CONTENTS
Table of cases ................................................................................................. vii
List of abbreviations .......................................................................................xi
CHAPTER I – INTRODUCTION ................................................................. 1
Section I – Background ........................................................................1
Section II – The artificial character of Georgia‘s case .........................3
Section III – Georgia‘s impermissible approach to dispute settlement 5
Section IV – The Order of the Court on provisional measures of
15 October 2008 .........................................................................8
Section V – The structure of Russia‘s Preliminary Objections ...........10
Section VI – The Russian Federation and the International
Convention on the Elimination of All Forms of Racial
Discrimination ........................................................................... 12
Section VII – Concluding observations ............................................... 14
CHAPTER II – THE REAL DISPUTE ......................................................... 16
Section I – Introductory observations .................................................. 16
Section II – The ongoing conflict between Georgia and Abkhazia /
South Ossetia concerning the legal status of Abkhazia and
South Ossetia ............................................................................. 17
A. South Ossetia: the Sochi Agreement, the establishment of
the Joint Peacekeeping Forces, and a period of relative
stability ............................................................................ 18
B. Abkhazia: Russia‘s role as facilitator, as recognized by the
United Nations ................................................................. 24
C. Developments from 2004 ...................................................... 30
D. Georgia‘s use of force in August 2008 ................................. 36
iiCHAPTER III – FIRST PRELIMINARY OBJECTION: THERE IS NO
DISPUTE BETWEEN THE PARTIES REGARDING THE
INTERPRETATION OR APPLICATION OF CERD .................................. 39
Section I – Introductory observations .................................................. 39
Section II – The principles to be applied in assessing whether there
is a dispute ................................................................................. 45
A. The requirement that there be a dispute ................................ 46
1. The meaning of ―dispute‖ ............................................ 46
2. The point in time at which the existence (or
otherwise) of a ―dispute‖ is to be assessed ............ 50
B. The requirement that the dispute concern the interpretation
or application of CERD ................................................... 57
Section III – The background to the so-called ―dispute‖: the absence
of allegations by Georgia of breach by Russia of CERD .......... 64
A. No communication of a matter before the Committee on
the Elimination of Racial Discrimination ........................ 64
B. No communication by Georgia of a dispute before other
human rights bodies ......................................................... 67
1. No communication of a dispute before the Human
Rights Committee .................................................. 67
2. No communication of a dispute before ECOSOC .......68
3. No communication of a dispute before the CEDAW
Committee or the Committee on the Rights of the
Child ...................................................................... 69
C. No communication of a dispute in bilateral contacts
between the Parties, or before other international fora
such as the Security Council ............................................70
Section IV – Conclusion: there is no dispute between the two Parties
with respect to the interpretation or application of CERD ........ 77
CHAPTER IV – SECOND PRELIMINARY OBJECTION: THE
PROCEDURAL CONDITIONS OF ARTICLE 22 OF CERD ARE NOT
FULFILLED .................................................................................................. 80
Section I. Jurisdiction of the Court conditional on previous attempts
to settle the dispute through negotiations and the procedures
provided for by the Convention ................................................. 82
iii A. The conditions provided for in Article 22 of CERD are
preconditions to the seisin of the Court ........................... 83
1. The duty to try to settle the dispute before seising the
Court ...................................................................... 83
a) The textual interpretation .................................. 84
b) Identifying an effet utile for the phrase―which
is not settled by negotiation or by the
procedures expressly provided for in this
Convention‖ .................................................85
c) The travaux préparatoires .................................87
d) The ICJ‘s interpretation of compromissory
clauses providing for procedural
requirements .................................................91
2. The Means to settle the dispute (as established by
Article 22 of CERD) ..............................................95
a) Negotiations .......................................................95
b) The CERD mechanism ......................................106
(i) The applicable rules / The inter-State
complaint Procedure as established
by the Convention ..............................106
(ii) The travaux préparatoires .....................109
(iii) The practice of States before the
CERD Committee ..............................112
B. The conditions in Article 22 of CERD are cumulative ......... 116
1. Textual interpretation ...................................................117
2. The travaux préparatoires ........................................... 119
a) Sub-Commission on Prevention of
Discrimination and Protection of Minorities120
b) Commission on Human Rights ..........................121
c) Third Committee of the General Assembly .......122
3. Other universal human rights treaties providing for
monitoring mechanisms .........................................128
Section II – The conditions for the seisin of the Court are not
fulfilled .......................................................................................132
A. The Parties have not held any negotiation on the dispute
alleged by Georgia ........................................................... 133
iv 1. There have been no bilateral or multilateral contacts
on relevant issues of racial discrimination
between the Parties ................................................ 136
a) Bilateral contacts ............................................... 136
b) Multilateral fora .................................................156
2. Georgia has constantly acknowledged the positive
role of Russia in respect to the now alleged
dispute ....................................................................167
B. Georgia has not used the procedures provided for by the
Convention .......................................................................171
Table 1 – Compromissory clauses providing for preconditions to the
Court‘s seisin ............................................................................. 173
Table 2 – Implementation mechanisms in universal human rights
treaties ........................................................................................ 178
CHAPTER V – THIRD PRELIMINARY OBJECTION: THE COURT
LACKS JURISDICTION RATIONE LOCI ................................................... 182
Section I – Introduction ........................................................................182
Section II – General rules governing the territorial application of
obligations ..................................................................................184
A. In the absence of a special rule to the contrary, obligations
under CERD apply territorially ........................................187
1. The principle of territorial application .........................188
2. The drafting history of CERD ..................................... 195
3. Interim conclusions ......................................................197
B. In the alternative, should obligations under CERD be
capable of applying extraterritorially, the requirements
of such application are not fulfilled ................................. 198
Section III – Article 2, para. 1, lit. a), b) and d) of CERD does not
apply extraterritorially ............................................................... 209
A. Article 2, para. 1, lit. a) of CERD ......................................... 209
B. Article 2, para. 1, lit. b) of CERD ......................................... 210
C. Article 2, para. 1, lit. d) of CERD ......................................... 212
Section IV – Article 5 of CERD does not apply extraterritorially .......214
v Section V – Article 3 of CERD does not apply to the conduct of the
Russian Federation in Abkhazia and South Ossetia ...................223
Section VI – Conclusions .....................................................................229
CHAPTER VI – FOURTH PRELIMINARY OBJECTION: THE
COURT‘S JURISDICTION IS LIMITED RATIONE TEMPORIS ............... 231
Section I – Introductory observations .................................................. 231
Section II – Georgia‘s emphasis on events prior to 2 July 1999 ..........233
Section III – Events subsequent to the filing of the Application ......... 236
CHAPTER VII – CONCLUSIONS ............................................................... 238
SUBMISSION ................................................................................................240
CERTIFICATION AND TABLE OF ANNEXES ........................................ 242
vi TABLE OF CASES
Paragraphs of
№ Cases these
Preliminary
Objections
1. The Mavrommatis Palestine Concessions, Objection to the 4.38, Table 1
Jurisdiction of the Court, Judgment of August 30th, 1924,
P.C.I.J., Series A, No. 2.
2. Case Concerning the Factory at Chorzów (Claim for 6.14
Indemnity) (Merits), Judgment of September 13th, 1928,
P.C.I.J., Series A, No. 17.
3. Case of the Free Zones of Upper Savoy and the District of 4.11, 4.37
Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22.
4. Railway Traffic between Lithuania and Poland, Advisory 4.37
Opinion of October 15th, 1931, P.C.I.J., Series A/B, No.
42.
5. The Electricity Company of Sofia and Bulgaria 3.24
th
(Preliminary Objection), Judgment of April 4 , 1939,
P.C.I.J. Series A/B, No. 77.
6. Corfu Channel case, Judgment on Preliminary Objection: 4.3
I.C.J. Reports 1948, p. 15.
7. Interpretation of Peace Treaties, Advisory Opinion: I.C.J. 3.17, 3.64
Reports 1950, p. 65.
8. Ambatielos case (jurisdiction), Judgment of July 1st , 4.6
1952: I.C.J. Reports 1952, p. 28.
9. Anglo-Iranian Oil Co. case (jurisdiction), Judgment of 1.23
July 22nd, 1952: I.C.J. Reports 1952, p. 93.
10. Case concerning right of passage over Indian territory 4.13
(Preliminary Objections), Judgment of November 26th,
1957: I.C.J. Reports I957, p. 125.
11. South West Africa Cases (Ethiopia v. South Africa; Liberia 3.64, 4.38,
v. South Africa), Preliminary Objections, Judgment of 21 Table 1
December 1962: I.C. J. Reports 1962, p. 319.
12. Case concerning the Northern Cameroons (Cameroon v. 4.12, 4.39,
United Kingdom), Preliminary Objections, Judgment of 2 Table 1
December 1963: I.C. J. Reports 1963, p. 15.
13. North Sea Continental Shelf, Judgment, I.C.J. Reports 4.28, 4.37
1969, p. 3.
vii14. Legal Consequences for States of the Continued Presence 5.137, 5.142
of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J. Reports 1971, p. 16.
15. Nuclear Tests (New Zealand v. France), Judgment, I.C.J. 2.1, 3.17, 3.39
Reports 1974, p. 457.
16. Nuclear Tests (Australia v. France), Judgment, I.C.J. 2.1, 3.17
Reports 1974, p. 253.
17. Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1.23
1978, p. 3.
18. United States Diplomatic and Consular Staff in Tehran, 4.22, Table 1
Judgment, I.C.J. Reports 1980, p. 3.
19. Military and Paramilitary Activities in and against 3.18, 3.33,
Nicaragua (Nicaragua v. United States of America), 4.29, 4.31,
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 4.33, 4.34,
1984, p. 392. Table 1
20. Applicability of the Obligation to Arbitrate under Section 4.38, Table 1
21 of the United Nations Headquarters Agreement of 26
June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 12.
21. Border and Transborder Armed Actions (Nicaragua v. 4.31
Honduras), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 1988, p. 69.
22. Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 4.22, Table 1
1989, p. 15.
23. Certain Phosphate Lands in Nauru (Nauru v. Australia), 3.46, 6.15
Preliminary Objections, Judgment, I.C.J. Reports 1992, p.
240.
24. Request for an Examination of the Situation in Accordance 2.1, 3.39
with Paragraph 63 of the Court's Judgment of 20
December 1974 in the Nuclear Tests (New Zealand v.
France) Case, I.C.J. Reports 1995, p. 288.
25. Oil Platforms (Islamic Republic of Iran v. United States of 3.36, 3.37,
America), Preliminary Objection, Judgment, I. C. J. 3.38, 3.43,
Reports 1996, p. 803. 3.46, 3.49,
Table 1
26. Application of the Convention on the Prevention and 3.13, 3.23,
Punishment of the Crime of Genocide (Bosnia and 5.122
Herzegovina v. Serbia and Montenegro), Preliminary
Objections, Judgment, I.C.J. Reports 1996, p. 595.
viii27. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of 2.1, 3.39
the Court, Judgment, I.C.J. Reports 1998, p. 432.
28. Land and Maritime Boundary between Cameroon and 3.64
Nigeria, Preliminary Objections, Judgment, I. C. J.
Reports 1998, p. 275.
29. Questions of Interpretation and Application of the 1971 4.22, 4.78,
Montreal Convention arising from the Aerial Incident at Table 1
Lockerbie (Libyan Arab Jamahiriya v. United States of
America), Preliminary Objections, Judgment, I. C. J.
Reports 1998, p. 115.
30. Questions of Interpretation and Application of the 1971 3.23, 4.78,
Montreal Convention arising from the Aerial Incident at 5.15
Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Preliminary Objections, Judgment, I. C.J. Reports 1998, p.
9.
31. Armed Activities on the Territory of the Congo 3.13
(Democratic Republic of the Congo v. Burundi),
Application of 23 June 1999.
32. LaGrand (Germany v. United States of America), 3.46, 6.15,
Judgment, I.C.J. Reports 2001, p. 466.
33. Arrest Warrant of 11 April 2000 (Democratic Republic of 3.46, 6.15
the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p.
3.
34. Legal Consequences of the Construction of a Wa11 in the 3.14, 4.61,
Occupied Palestinian Territory, Advisory Opinion, I. C. J. 5.28, 5.34,
Reports 2004, p. 136. 5.49, 5.51
35. Certain Property (Liechtenstein v. Germany), Preliminary 3.76, 3.17
Objections, Judgment, I.C.J. Reports 2005, p. 6.
36. Armed Activities on the Territory of the Congo 3.14, 5.29,
(Democratic Republic of the Congo v. Uganda), Judgment 5.52, 5.62
of 19 December 2005, I.C.J. Reports 2005, p. 168.
37. Armed Activities on the Territory of the Congo (New 1.25, 3.13,
Application: 2002) (Democratic Republic of the Congo v. 4.3, 4.25, 4.85
Rwanda) I.C.J. Reports 2006, p. 39.
38. Territorial and Maritime Dispute (Nicaragua v. 5.15
Colombia), Preliminary Objections, Judgment of 13
December 2007.
39. Certain Questions of Mutual Assistance in Criminal 3.46, 4.3, 4.6,
Matters (Djibouti v. France), Judgment of 4 June 2008. 6.15
ix40. Application of the International Convention on the 4.85
Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Order of 15 October
2008.
41. Application of the Convention on the Prevention and 3.23, 3.31,
Punishment of the Crime of Genocide (Croatia v. Serbia), 3.33, 4.82
Preliminary Objections, Judgment of 18 November 2008.
42. Request for Interpretation of the Judgment of 31 March 1.23
2004 in the Case concerning Avena and Other Mexican
Nationals (Mexico v. United States of America), Judgment
of 17 January 2009.
x LIST OF ABBREVIATIONS
CAT - Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
CED - International Convention for the Protection of All Persons
from Enforced Disappearance
CEDAW - Committee on the Elimination of Discrimination against
Women
CERD - International Convention on the Elimination of All Forms of
Racial Discrimination
CERD - Committee for the Elimination of Racial Discrimination
Committee
CIS - Commonwealth of Independent States
CMW - International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families
CSCE - Conference on Security and Cooperation in Europe
ECHR - Convention on the Protection Human Rights and
Fundamental Freedoms
ECOSOC - Economic and Social Council
GM - Memorial of Georgia, 2 September 2009
ICCPR - International Covenant on Civil and Political Rights
IDP - internally displaced persons
IHL - international humanitarian law
ILC - International Law Commission
ITLOS - International Tribunal for the Law of the Sea
JCC - Joint Control Commission for the Settlement of the
Georgian-Ossetian Conflict
JPKF - Joint Peacekeeping Forces, Joint Forces for the Maintenance
of Peace in the Area of the Georgian-Ossetian conflict
xiMoscow - Agreement on a Cease-Fire and Separation of Forces, 14
Agreement May 1994
OSCE - Organisation on Security and Cooperation in Europe
Quadripartite - Quadripartite Agreement on voluntary return of refugees and
Agreement displaced persons, 4 April 1994
Sochi - Agreement on the Principles of Settlement of the Georgian-
Agreement Ossetian Conflict of 24 June 1992
UNHCR - United Nations Office of the High Commissioner for
Refugees
UNOMIG - United Nations Observer Mission in Georgia
WHO - World Health Organisation
xii CHAPTER I
INTRODUCTION
Section I. Background
1.1 On 7 August 2008 Georgia commenced large-scale military operations in
South Ossetia which included an armed attack against Russian peacekeeping
forces that were stationed in Tskhinvali in accordance with the 24 June 1992
Sochi Agreement on Principles of a Settlement of the Georgian-Ossetian
1
Conflict. This was an attack that, as the Independent International Fact-Finding
Mission on the Conflict in Georgia correctly determined, could not be justified
as an exercise of the right of self-defence and thus constituted a clear violation
of international law. As the Independent International Fact-Finding Mission
2
stated it in its report :
―There was no ongoing armed attack by Russia before the start of the
Georgian operation. Georgian claims of a large-scale presence of Russian
armed forces in South Ossetia prior to the Georgian offensive on 7/8
August could not be substantiated by the Mission. It could also not be
verified that Russia was on the verge of such a major attack, in spite of
certain elements and equipment having been made readily available.
There is also no evidence to support any claims that Russian peacekeeping
units in South Ossetia were in flagrant breach of their obligations under
relevant international agreements such as the Sochi Agreement and thus
may have forfeited their international legal status. Consequently, the use
of force by Georgia against Russian peacekeeping forces in Tskhinva3i in
the night of 7/8 August 2008 was contrary to international law.‖
1
See GM, Annex 102.
2
References to the report by the Independent International Fact-Finding Mission on the
Conflict in Georgia should not be interpreted as an endorsement of all findings by the
Mission.
3
Independent International Fact-Finding Mission on the Conflict in Georgia, Report, vol. I
(September 2009), p. 23, para. 20. Annex 75 to these Preliminary Objections. See also at p.
22, para 19: 2
1.2 On 11 August 2008, i.e. only four days after it had started hostilities,
Georgia sought interim measures to be ordered by the European Court of Human
Rights alleging violations of the European Convention on Human Rights by
Russia and, one day later, i.e. on 12 August 2008, Georgia also instituted
proceedings before this Court against the Russian Federation, now relying on
Article 22 of the International Convention on the Elimination of All Forms of
Racial Discrimination (CERD). This sequence of events alone is telling for two
different reasons.
1.3 First, it is apparent that Georgia only decided to have recourse to methods
providing for the judicial settlement of disputes after an (unlawful) use of force
and after it had become obvious to Georgia that it would not be able to regain
control over Abkhazia and South Ossetia by such an illegal use of military force.
1.4 Second, Georgia engaged in a search for any legal forum where it could
bring claims against the Russian Federation, regardless of the underlying
substantive issues and, in particular, regardless of the real character of the
alleged dispute and its parties. The real dispute in this case concerns the conflict,
between Georgia on the one hand and Abkhazia and South Ossetia on the other,
in relation to the legal status of Abkhazia and South Ossetia, a conflict that has
on occasion erupted into armed conflict. It is manifest that there was a period of
armed conflict between Georgia and Russia, following on from Georgia's
unlawful use of force on 7 August 2008. Yet, this is not a case about racial
discrimination covered by Article 22 of CERD.
―There is the question of whether the use of force by Georgia in South Ossetia, beginning
with the shelling of Tskhinvali during the night of 7/8 August 2008, was justifiable under
international law. It was not‖.
Hereinafter, ―Annex xx‖ refers to annexes to these Preliminary Objections reproduced in
Volume II; ―GM, Annex xx‖ refers to annexes to the Memorial of Georgia. 3
1.5 As the joint dissenting opinion attached to the Court‘s Order of 15
October 2008 aptly put it:
―It is curious, to say the least, that Georgia, which has cited acts of racial
discrimination allegedly committed by the Russian Federation since the
early 1990s in violation of CERD, has awaited the armed conflict with
Russia (and South Ossetian forces) to which it is a party immediately to
seise the Court of a dispute relating to the interpretation and the
application of that Convention.‖ 4
Section II. The artificial character of Georgia’s case
1.6 It is also telling, as will be demonstrated in more detail in Chapter III
below, that Georgia had never raised beforehand the issue of alleged violations
of CERD by the Russian Federation with regard to acts or omissions related to
events in Abkhazia or South Ossetia – despite the fact that CERD entered into
force with respect to Georgia on 2 July 1999, and the further fact that the dispute
5
to which Georgia refers allegedly dates back to 1991.
1.7 In particular, Georgia never raised the issue of racial discrimination by the
Russian Federation with reference to the situation in Abkhazia and South
6
Ossetia in negotiations prior to seeking to bring this case before the Court; nor
has Georgia ever made use of the procedures expressly provided for in CERD,
7
as required by Article 22 of CERD. Indeed, had it been the case that, as Georgia
4See Joint dissenting opinion of Vice-President Al-Khasawneh and Judges Ranjeva, Shi,
Koroma, Tomka, Bennouna and Skotnikov attahced to the Court‘s Order of 15 October 2008,
para. 3.
5
See e.g. Georgia‘s Application of 12 August 2008, para. 6.
6For details see infra Chapter IV, para. 4.84 et seq.
7See infra Chapter III, para. 3.51 et seq., Chapter IV, para. 4.123 et seq. 4
now claims, Georgia and the Russian Federation had a dispute concerning
CERD, it would have been in Georgia‘s own interests to bring its concerns to
the attention of the Russian Federation in an unambiguous way; thus the Russian
Federation would have had the opportunity to be aware of and, if necessary, to
react to Georgia‘s alleged grievances.
1.8 Moreover, and further confirming the artificial character of the case at
hand, prior to the filing of the Application, Georgia never alleged that the
Russian Federation was a party to conflicts that were ongoing between Georgia
on the one hand and Abkhazia and South Ossetia on the other. Further, Georgia
had frequently confirmed the internationally recognized role of the Russian
Federation as a third-party facilitator in those conflicts.
1.9 Finally, Georgia never claimed prior to bringing this case, nor has the
Committee on the Elimination of Racial Discrimination established under
CERD ever considered, that CERD would be applicable to acts of organs of the
9
Russian Federation on the territory of Abkhazia or South Ossetia.
1.10 It was only when it submitted its Application that Georgia, for the first
time, claimed that the Russian Federation had violated the provisions of CERD
– in an obvious attempt to construct a case that would come within the Court‘s
jurisdiction under Article 22 of CERD while, significantly, not raising any claim
under Article 14 of the ECHR when it lodged an Application before the
European Court of Human Rights (while the European Court of Human Rights
could certainly have been seized of a claim of racial discrimination on the same
basis).
8
See infra Chapter III and Chapter IV, e.g. para. 4.115 et seq.
9See infra Chapter V. 5
Section III. Georgia’s impermissible approach to dispute settlement
1.11 It is important to pause to see how these two factors, i.e. Georgia‘s
commencement of military operations on 7 August 2008, and the fact that it
sought to seise the Court with a never previously mentioned dispute on 12
August 2008, fit within the applicable legal framework.
1.12 In accordance with any plain reading of Article 22 of CERD, there must
be (i) a dispute with respect to the interpretation or application of the
Convention, which (ii) has not been settled by negotiation or by the procedures
expressly provided for in the Convention, prior to (iii) referral of the dispute to
the Court. 10
1.13 Stepping back from the detail, this can be recognised as a 3-stage process.
That 3-stage process is consistent with the basic principles of peaceful dispute
settlement, as reflected, for example, in the 1970 Friendly Relations
Declaration. 11 As also follows from these basic principles and the prohibition of
the use of force, there is of course no ―stage 4‖, i.e. there can be no recourse to
military force to settle the dispute. As the Friendly Relations Declaration
provides:
10
Article 22 of CERD provides:
―Any dispute between two or more States Parties with respect to the interpretation or
application of this Convention, which is not settled by negotiation or by the procedures
expressly provided for in this Convention, shall, at the request of any of the parties to the
dispute, be referred to the International Court of Justice for decision, unless the disputants
agree to another mode of settlement.‖
11
Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the United Nations, United
Nations General Assembly Resolution 2625 (XXV) of 24 October 1970. 6
―Every State shall settle its international disputes with other States by
peaceful means in such a manner that international peace and security and
justice are not endangered.
States shall accordingly seek early and just settlement of their
international disputes by negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements
or other peaceful means of their choice. In seeking such a settlement the
parties shall agree upon such peaceful means as may be appropriate to the
circumstances and nature of the dispute.
The parties to a dispute have the duty, in the event of failure to reach a
solution by any one of the above peaceful means, to continue to seek a
settlement of the dispute by other peaceful means agreed upon by them.
States parties to an international dispute, as well as other States shall
refrain from any action which may aggravate the situation so as to
endanger the maintenance of international peace and security, and shall
act in accordance with the purposes and principles of the United Nations.‖
1.14 What has happened in this case with respect to the application of the
agreed 3-stage process to a dispute that, according to Georgia, dates back to
1991?
1.15 First, Georgia has gone straight to (the non-permitted) ―stage 4‖. Georgia
has resorted to military force to resolve the conflict concerning the legal status
of Abkhazia and South Ossetia, as referred to in paragraph 1.4. above, that
Georgia now characterises as a dispute under CERD. It has engaged in armed
action that would patently aggravate the situation and endanger the maintenance
of international peace and security. Its actions have been found to be unlawful in
12
the Independent International Fact-Finding Mission report.
1.16 Second, and no doubt in the light of the lack of success in achieving its
goals by means of (the non-permitted) ―stage 4‖, Georgia has sought to go to
12Independent International Fact-Finding Mission on the Conflict in Georgia, Report, vol. I
(September 2009), pp. 22-23, paras. 19-20. Annex 75. 7
stage 3 of the process established by Article 22 of CERD. It has not – over an
alleged period of 17 years prior to the date of the Application – communicated
the existence of a claim to the Russian Federation such that the Russian
Federation could positively oppose that claim (stage 1); still less has it sought to
settle that dispute by negotiation or by the procedures expressly provided for in
CERD (stage 2). And yet it now seeks to seise the Court of a dispute under
Article 22 of CERD (stage 3).
1.17 The position of the Russian Federation is simple. This is not an approach
to the resolution of disputes that the Court can countenance. Georgia has sought
not only to bypass the agreed procedures of Article 22 of CERD, but to overturn
the most fundamental principles on the peaceful settlement of disputes.
1.18 It is useful to ask the common sense question as to what would have
happened if Georgia had been successful in its military intervention in South
Ossetia – because it had defeated the South Ossetian forces, and disabled the
peacekeeping forces of Russia. Would this case have been brought before the
Court on 12 August 2008? The answer to that question is, of course, ―no‖.
Georgia elected to take dispute settlement into its own hands, and through
unlawful means. It would be unconscionable for Georgia now to be permitted to
reinvent the history of its claim, to be treated as if the Russian Federation was
aware of the alleged long-standing dispute, to be treated as if Georgia had in fact
had recourse to the pre-conditions contained in Article 22 of CERD, to be
treated as if it had not first sought to achieve its aims by use of force, and as if it
had not first brought to Russia‘s notice the existence of a dispute under CERD
only on 12 August 2008. 8
Section IV. The Order of the Court on Provisional Measures
of 15 October 2008
1.19 Having submitted its Application on 12 August 2008, Georgia filed a
request for the indication of provisional measures on 14 August 2008. On 15
October 2008, the Court adopted an order indicating provisional measures by
eight votes to seven. While Georgia had of course requested the Court to address
13
such measures to the Russian Federation only, the Court decided proprio motu
to indicate provisional measures addressed to both Parties, i.e. to the Russian
Federation, as well as to Georgia.
1.20 It is also important to underline that the Court has stressed the provisional
and mere prima facie character of its finding as to its jurisdiction under Article
22 of CERD. As the Court put it:
―Whereas the Court, in view of all the foregoing, considers that, prima
facie, it has jurisdiction under Article 22 of CERD to deal with the case
14
….‖
1.21 The Court further confirmed that its jurisdiction (if ever it has jurisdiction,
quod non), would be limited to issues the subject-matter of which relate to the
―interpretation or application of the International Convention on the Elimination
15
of All Forms of Racial Discrimination‖.
13See CR 2008/25, para. 11 (Burjaliani).
14
Order of 15 October 2008, para. 117.
15
Ibid. 9
1.22 Finally, the Court also underlined that its prima facie finding on
jurisdiction was without prejudice to a later and definitive determination of these
questions. The Court stated:
―Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case or any questions relating to the admissibility of the
Application ….‖ 16
1.23 It should also be noted in this regard that the Court has previously found
that it lacks jurisdiction although it had previously held in proceedings on
provisional measures that it had jurisdiction prima facie. The Anglo-Iranian Oil
case, the Aegean Sea Continental Shelf case and the Case concerning the
Request for Interpretation of the Judgment of 31 March 2004 in the Case
concerning Avena and Other Mexican Nationals (Mexico v. United States of
America) are examples at hand.
1.24 The Court has confirmed the right of the Government of the Russian
17
Federation to submit arguments in respect of those very questions. It is in
exercise of this right, and in conformity with Article 79 of the Rules of Court,
that the Russian Federation submits the following preliminary objections as to
the jurisdiction of the Court.
16
Ibid., para. 148.
17
Ibid. 10
Section V. The structure of Russia’s Preliminary Objections
1.25 The Court has reiterated, time and again, that it is the fundamental
principle of consent that governs the exercise by the Court of its contentious
jurisdiction. As the Court has stated:
―… one of the fundamental principles of its Statute is that it cannot
decide a dispute between States without the consent of those States
to its jurisdiction ….‖ 18
1.26 Accordingly, it is only if and to the extent that the parties to the case have
consented to such jurisdiction that the Court may rule on the merits of the case.
Given that the Application submitted by Georgia does not come within the
jurisdiction provided for by Article 22 of CERD, the Russian Federation
respectfully submits the preliminary objections summarised in paragraphs 1.28
to 1.33 below.
1.27 In Chapter II, which follows, the Russian Federation first seeks to identify
the real dispute in this case, consistent with the past jurisprudence of the Court.
That real dispute is as identified in paragraph 1.4 above. 19
1.28 The first preliminary objection put forward by the Russian Federation will
demonstrate that there was no dispute between Georgia and Russia with respect
18
See inter alia Case Concerning Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), Request for the
Indication of Provisional Measures, Order of 10 July 2002, ICJ Rep. 2002, p. 241.
19In doing so, the Russian Federation does not, save insofar as is necessary for the issue of
the jurisdiction of the Court, take a position as to the facts of the case as presented by the
Applicant. The same applies to the remainder of these Preliminary Objections. The Russian
Federation reserves its rights to do so, should the need arise, even more so since the facts, as
presented by Georgia, do not represent the realities before, during or after the outbreak of
hostilities. 11
to the interpretation or application of CERD concerning the situation in and
around Abkhazia and South Ossetia prior to 12 August 2008, i.e. the date
Georgia submitted its application. 20
1.29 For one, the parties to any dispute involving allegations of racial
discrimination committed on the territory of Abkhazia and South Ossetia, if ever
there was such a dispute, were Georgia on the one side, and Abkhazia and South
Ossetia on the other, but not the Russian Federation which, prior to the filing of
the application and the starting of hostilities by Georgia, had been perceived by
all relevant actors, including Georgia, as being a facilitator and a State
contributing stabilising peace-keeping forces.
1.30 Besides, it will be also shown that in any event, if ever there was a dispute
between Georgia and Russia, any such dispute was not one related to the
application or interpretation of CERD.
1.31 The second preliminary objection relates to the fact that, apart from the
lack of any relevant dispute, Georgia has not satisfied the requirements laid
down in Article 22 of CERD, namely to attempt to settle the alleged dispute by
way of negotiation or by the procedures expressly provided for in the
Convention, before bringing the case before the Court. In particular, the
Respondent will show that any State that wants to bring a case under Article 22
of CERD must, before doing so, raise the issue of alleged violations of CERD in
prior negotiations, and must make use of the methods specifically provided for
in CERD, in order for the Court to be able to exercise its jurisdiction under
Article 22 .1
20
See infra Chapter III.
21See infra Chapter IV. 12
1.32 In its third preliminary objection, Russia will demonstrate that the
jurisdictional reach of Article 22 of CERD does not extend to acts or omissions
by the Russian Federation allegedly having taken place on the territory of either
Abkhazia or South Ossetia. This is due to the consideration that the Court‘s
jurisdiction under Article 22 of CERD is limited to disputes related to the
interpretation or application of CERD which, in turn, does not apply to acts
having taken place beyond the territory of the respective contracting party of
CERD. 22
1.33 In any event, and in the further alternative, it will be demonstrated by way
of a fourth preliminary objection that the Court‘s jurisdiction ratione temporis
would be limited to events having taken place after the entry into force of CERD
23
as between the Parties, i.e. to events which occurred after 2 July 1999, should
the Court find that it has jurisdiction at all, quod non.
Section VI. The Russian Federation and the International Convention
on the Elimination of All Forms of Racial Discrimination
1.34 The adoption of CERD in 1965 by the United Nations General Assembly
constituted a significant milestone in the efforts of the international community
in countering racism and racial discrimination. Russia, as a multi-ethnic society,
where various ethnic groups live peacefully together, attaches particular
importance to strengthening efforts at the national, regional and universal levels
aimed at eliminating all forms and manifestations of racism, racial
discrimination, xenophobia and related intolerance. It has therefore always
22
See infra Chapter V.
23See infra Chapter VI. 13
supported the Convention and the implementation and monitoring mechanism
established by it.
1.35 The Russian Federation has been a State Party to CERD since 1969 by
virtue of continuing the international legal personality of the Union of Soviet
Socialist Republics. It has made no reservation insofar as the implementation
clauses of CERD are concerned, and withdrew its reservation as to Article 22 of
CERD in 1989.
1.36 Moreover, it has made a Declaration under Article 14 of CERD
recognizing the competence of the Committee on the Elimination of Racial
Discrimination to receive and consider communications from individuals or
groups of individuals claiming to be victims of a violation by Russia of any of
the rights set forth in the Convention.
1.37 Ever since becoming a contracting party, Russia has duly cooperated with
the Committee on the Elimination of Racial Discrimination, having submitted
19 periodic reports since 1969, the latest of which 24 was considered by the
Committee in 2008 , the Committee adopting its concluding observations on 13
August 2008 , i.e. after the outbreak of hostilities.
24
Committee on the Elimination of Racial Discrimination, 73rd session, Consideration of
reports submitted by States Parties under Article 9 of the Convention, Concluding
Observations of the Committee on the Elimination of Racial Discrimination: Russian
Federation, U.N. Doc. CERD/C/RUS/CO/19 (20 August 2008). Annex 70.
25
See CERD/C/SR.1882 and 1883.
26Committee on the Elimination of Racial Discrimination, 73rd session, Consideration of
reports submitted by States Parties under Article 9 of the Convention, Concluding
Observations of the Committee on the Elimination of Racial Discrimination: Russian
Federation, U.N. Doc. CERD/C/RUS/CO/19 (20 August 2008), Annex 70; for the Summary
Records see CERD/C/SR.1897 and 1898. 14
1.38 The Respondent has also actively participated in the Third World
Conference Against Racism, Racial Discrimination, Xenophobia and Related
Intolerance held in August-September 2001 in Durban, South Africa, as well as
most recently in the Durban Review Conference held in April 2009 in Geneva.
1.39 The Outcome document of the Review Conference underlines the
important functions that the Committee on the Elimination of Racial
Discrimination plays in monitoring the implementation of the CERD and, in
particular, also noted with appreciation the early warning and urgent action
procedure, as well as the follow-up procedure, established by the Committee. 27
Section VII. Concluding observations
1.40 When ratifying CERD, the Union of Soviet Socialist Republics entered a
reservation as to Article 22 of CERD. This reservation provided, as far as
relevant:
― (...) The Union of Soviet Socialist Republics does not consider
itself bound by the provisions of article 22 of the Convention, under
which any dispute between two or more States Parties with respect
to the interpretation or, application of Convention is, at the request
of any of the parties to the dispute, to be referred to the
International Court of Justice for decision, and states that, in each
individual case, the consent of all parties to such a dispute is
necessary for referral of the dispute to the International Court of
Justice.‖28
1.41 Currently, 23 contracting parties of CERD maintain reservations which
are, mutatis mutandis, identical to the one then entered by the Soviet Union. It
27
U.N., Report of the Durban Review Conference, U.N. Doc. A/CONF.211/8 (20-24 April
2009), para. 44. Annex 74.
28United Nations, Treaty Series, vol. 676, pp. 397-398 (1969). 15
may be hoped that further States will follow the example given by the USSR in
1989 and will withdraw such reservations, and that additional States will desist
from making such reservations when they ratify the Convention.
1.42 When deciding to withdraw this and parallel reservations to other human
rights treaties in 1989, the USSR did so
―… due to the major importance it attaches to upholding at present
the role played in world affairs by the United Nations International
Court of Justice.‖29
1.43 In taking that decision, the USSR was also
―… guided by the interests of strengthening the in30rnational legal
order ensuring the primacy of law in politics.‖
1.44 It is against this background that the Russian Federation would consider it
a deplorable development if Georgia were to be permitted to bring an artificial
case before the Court under Article 22 of CERD, having first had recourse to the
use of force and then having bypassed the requirements laid down in the
Convention. Doing so might also endanger the overall acceptance of the system
of peaceful settlement of disputes through the Court as the principal judicial
organ of the United Nations generally, and the Court‘s role, as provided for in
Article 22 of CERD, in particular, and would, by the same token, also
undermine the authority of the Committee on the Elimination of Racial
Discrimination, as well as that of the other human rights treaty bodies.
29Letter dated 28 February 1989 from the Soviet Minister of Foreign Affairs Eduard A.
Shevardnadze to United Nations Secretary-General Javier Perez de Cuellar (unofficial English
translation), 83 A.J.I.L. 457 (1989), p. 457.
30
Ibid. CHAPTER II
THE REAL DISPUTE
Section I. Introductory observations
2.1 As the Court held in Nuclear Tests: ―it is the Court‘s duty to isolate the
real issue in the case and to identify the object of the claim.‖ 31 To similar effect,
the Court held in Fisheries Jurisdiction (Spain v. Canada), referring to its past
jurisprudence:
―The Court will itself determine the real dispute that has been submitted
to it (see Maritime Delimitation and Territorial Questions between Qatar
and Bahrain, Jurisdiction and Admissibility, Judgment, I. C. J. Reports
1995, pp. 24-25). It will base itself not only on the Application and final
submissions, but on diplomatic exchanges, public statements and other
pertinent evidence (see Nuclear Tests (Australia v. France), Judgment, I.
C. J. Reports 1974, pp. 262-263).‖ 32
2.2 The identification of the real dispute is of particular importance in this
case given that, as is considered further in Chapter III below, (i) it is for Georgia
to establish that there is a ―dispute between two or more State Parties [in this
case, Georgia and Russia] with respect to the interpretation or application of this
Convention‖, as is required by Article 22 of CERD, and (ii) Russia only learnt
that there was a claim against it under CERD and/or in respect of alleged racial
discrimination in Abkhazia and South Ossetia on 12 August 2008, i.e. the date
of Georgia‘s Application instituting proceedings.
31Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 466, para. 30;
see also Request for an Examination of the Situation in Accordance with Paragraph 63 of the
Court‟s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case
(New Zealand v. France), Order of 22 September 1995, I.C.J. Reports 1995, p. 304, para. 55;
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports
1998, p. 448, paras. 29-30.
32
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J.
Reports 1998, p. 448, para. 31. 17
2.3 It is Russia‘s position that the real dispute in this case concerns the
conflict, between Georgia on the one hand and Abkhazia and South Ossetia on
the other, in relation to the legal status of Abkhazia and South Ossetia, a conflict
that has on occasion erupted into armed conflict. It is manifest that there was a
period of armed conflict between Georgia and Russia, following on
from Georgia‘s unlawful use of force on 7 August 2008. This is not a case about
racial discrimination.
Section II. The ongoing conflict between Georgia and
Abkhazia / South Ossetia concerning the legal status
of Abkhazia and South Ossetia
2.4 From the early 1990s, Georgia has been engaged in lengthy and very
costly (in human and, no doubt, economic terms) conflict with Abkhazia and
South Ossetia, in which Russia has had a role as a facilitator at the express
request of Georgia and the other parties engaged in the conflict.
2.5 During the Perestroika, the democratic movement in Georgia was largely
nationalist in orientation. The first President of independent Georgia, Zviad
Gamsakhurdia, elected in October 1990, openly stood for a ―Georgia for
33
Georgians‖. Abkhazia and South Ossetia perceived this as a threat and
favoured remaining within the USSR. With the break-up of the Soviet Union,
Abkhazia and South Ossetia sought to establish their own power structures. Both
regions declared independence remained beyond the sphere of Georgia‘s direct
control. Georgia made several attempts to restore its territorial integrity by
33Human Rights Watch / Helsinki, ―Bloodshed in the Caucasus: Violations of Humanitarian
Law and Human Rights in Georgia-South Ossetia Conflict‖ (1992), p. 8. Annex 25. 18
military force, first in South Ossetia, and then in Abkhazia. These attempts
failed, and also resulted in tens or hundreds of thousands of people, including of
course, ethnic Georgians, fleeing the two regions.4
A. SOUTH OSSETIA:
THE SOCHI AGREEMENT, THE ESTABLISHMENT OF THE JOINT
PEACEKEEPING FORCES, AND A PERIOD OF RELATIVE STABILITY
2.6 A useful insight into the nature of the conflict that commenced in 1991-
1992 in South Ossetia can be derived from the Report of the Representative of
the Secretary-General on the human rights of internally displaced persons dated
24 March 2006, which Georgia refers to in its Memorial. At paragraph 4.5 of its
Memorial, Georgia describes, by reference to this Report, a violent campaign of
ethnic cleansing directed by Ossetian separatists at ethnic Georgians in 1991-
1992, and it is said that over 10,000 ethnic Georgians were permanently forced
from their places of residence.
2.7 However, the Report of the Representative of the Secretary-General in
fact shows that the main victims of violence were ethnic Ossetians, not ethnic
Georgians, some of whom were having to flee due to fear, harassment or
forcible eviction in parts of Georgia:
―The 1990-1992 conflict in the Tskhinvali Region/South Ossetia is
estimated to have displaced some 60,000 persons, including about 10,000
ethnic Georgians [footnote omitted]. The vast majority, however, were
ethnic Ossets from both the breakaway territory and other parts of
Georgia, most of whom have fled abroad (primarily to the Russian
Federation region of North Ossetia). Some were displaced as a direct
consequence of fighting in and around the Tskhinvali Region/South
34See e.g. ibid., p. 17; also Report of the Representative of the Secretary-General on the
human rights of internally displaced persons, Addendum, Mission to Georgia, Walter Kälin,
24 March 2006, para. 8. GM Annex 40. 19
Ossetia, while others moved due to fear, harassment or forcible eviction in
parts of Georgia that remained otherwise largely peaceful during the
conflict.‖35
2.8 At paragraph 4.6 of its Memorial, Georgia cites a Human Rights Watch
report of 1992, setting out an extract in which it is recorded that Ossetian
36
guerrillas burned an estimated 62 homes of Georgians in South Ossetia.
2.9 The extract that Georgia relies on is from a section of the 1992 report
entitled ―Pillage, Outrage Against Personal Dignity, Torture, Violence to Life
and Person, and Forced Displacement of the Civilian Population: By Ossetians‖.
The section is, however, preceded by an equivalent (if slightly longer) section on
Pillage etc ―By Georgian Paramilitaries‖, to which Georgia makes no reference.
That section, which Georgia chose not to annex to its Memorial, commences as
follows:
―Georgian paramilitary groups committed acts of violence against
Ossetian civilians within South Ossetia that were motivated both by the
desire to expel Ossetians and reclaim villages for Georgia, and by sheer
revenge against the Ossetian people. As a consequence of this violence,
between sixty and 100 villages in South Ossetia are r37orted to have been
burned down, destroyed or otherwise abandoned.‖
2.10 Thus, while Georgia portrays the Human Rights Watch 1992 report as
showing that Ossetians burned down 62 Georgian homes, the report in fact
35Report of the Representative of the Secretary-General on the human rights of internally
displaced persons, Addendum, Mission to Georgia, Walter Kalin, 24 March 2006, para. 8.
GM Annex 40.
36
GM, para. 4.6 and fn. 409. An incorrect fn. reference is given at fn. 409. The reference
should be to: Human Rights Watch/Helsinki, Bloodshed in the Caucasus: Violations of
Humanitarian Law and Human Rights in the Georgia-South Ossetia Conflict, 1992, pp. 22-
23, GM Annex 145.
37
Human Rights Watch / Helsinki, ―Bloodshed in the Caucasus: Violations of Humanitarian
Law and Human Rights in Georgia-South Ossetia Conflict‖ (1992), p. 17. Annex 25. 20
shows far more extensive acts of violence by Georgian paramilitary groups.
Further, it is notable that this 1992 report also considers the acts of ―Georgians‖
and ―Ossetians‖ under five other heads (Indiscriminate Shelling and Artillery
Fire, Civilian Casualties of Shelling and Gunfire, Interference with Medical
Personnel, Hostage-taking and Summary Executions), but there is no suggestion
38
of acts by Russia (or the USSR) under any of these heads.
2.11 The 1992 report also contains the following conclusion (which Georgia
did not annex to its Memorial):
―We conclude that the Georgian government allowed and indirectly
encouraged paramilitary groups to pursue a guerrilla war against the rebel
defense forces of South Ossetia, in which both sides - Ossetian and
Georgian - violated customary rules of war.‖ 39
2.12 Thus the conflict opposed Georgia and South Ossetia.
2.13 This is also reflected in the Agreement on the Principles of Settlement of
the Georgian-Ossetian Conflict, signed in the city of Sochi on 24 June 1992
40
(―the Sochi Agreement‖). In concluding the Agreement, Georgia and Russia
were, as the Preamble to the Agreement records: ―Striving for immediate
cessation of bloodshed and achieving a comprehensive settlement of the conflict
between Ossetians and Georgians‖ (emphasis added). It is important to focus
briefly on the Sochi Agreement and related documents, as these identify the role
in which Russia was engaged.
38
Ibid., pp. 26-37. There is also a lengthy section entitled ―Discrimination and Violence
Against Ossetians in Georgia‖ (by definition, by Georgia). Ibid, pp. 37-47.
39Ibid., p. 4. There is no such finding so far as concerns Russia (or the USSR). At p. 5, the
report states: ―The CIS (formerly USSR) Interior Ministry (MVD) troops, acting as
peacekeepers in the conflict zone, provided inadequate protection of Georgians in South
Ossetia‖.
40
GM, Annex 102. 21
2.14 Pursuant to Article 3(1) of the Sochi Agreement, the parties agreed on the
establishment of a Joint Control Commission (JCC) ―to exercise control over the
implementation of a cease-fire, withdrawal of armed formations, disbandment of
forces of self-defense and to maintain the regime of security in the region‖.
Pursuant to Article 3(3), they agreed on the deployment of ―joint forces for the
maintenance of peace and order‖ (later known as the Joint Peacekeeping Forces,
or JPKF) under the authority of the JCC. 41
2.15 Initially, the JCC operated as a trilateral forum, comprising
representatives of Russia, Georgia and of the ―Ossetian side‖ – a formulation
chosen because of the reluctance to recognize South Ossetia as an official party
to the process. 42On 4 July 1992, at the first meeting of the JCC, it was agreed
that the Joint Peacekeeping Forces would be deployed, consisting of a Russian, a
Georgian and an Ossetian battalion, each counting 500 active servicemen and a
300-strong reserve. 43
2.16 Georgia‘s position in its Memorial is that it was compelled to agree to the
deployment of the Joint Peacekeeping Forces. 44That was not a position adopted
in Georgia‘s Application of 12 August 2008, where it was also accepted that
―the security situation in South Ossetia was relatively stable during the 12 years
45
between 1992 and 2004‖. Nor is it a position that is consistent with how the
41See also para. 4.90 (c) below.
42
―Russia and Georgia have agreed that South Ossetia does not exist‖, by Liana Minasian,
Nezavisimaya Gazeta (30 June 1992). Annex 24.
43GM, Annex 103.
44
GM, para. 4.15.
45Application, para. 56. 22
Joint Peacekeeping Forces and the JCC were seen by Georgia at the time. For
example:
a. In October 1994, an agreement on the further development of the
process of settlement of the Georgian-Ossetian conflict was signed in
Moscow by Georgia, South Ossetia, North Ossetia and Russia, 46
supplemented with the Regulation on the Joint Control Commission. 47
The parties noted that ―the JCC ha[d] largely fulfilled its functions of
ensuring control of ceasefire, withdrawing armed units and maintaining
safety measures, thus laying foundation for the process of political
48
settlement”, while they also decided to convert the JCC into a
―permanently operating organ of the four parties that participate in the
49
settlement of the conflict and the suppression of its consequences‖. It
was agreed that meetings of the JCC would be attended by representatives
of the Conference on Security and Cooperation in Europe (CSCE) mission
in Georgia. The parties to the conflict, Georgia and South Ossetia,
reaffirmed their obligations to resolve all issues by peaceful means and
50
not to resort to the use or threat of force.
b. In December 1994, the JCC adopted the Regulation on the basic
principles of the activities of military contingents and observation
46The Russian text appears in GM, Vol. III, Annex 113. For an English translation, see
Annex 42 to these Objections.
47
Regulation on the JCC for the settlement of the Georgian-Ossetian Conflict (adopted 31
October 1994). GM, Vol. III, Annex 113.
48
Agreement on the further development of the process of the settlement of the Georgian-
Ossetian conflict and on the Joint Control Commission (31 October 1994), clause 1(a). Annex
42.
49Ibid., clause 1(c).
50
Ibid., clause 5. 23
51
groups. The decision accompanying the Regulation, signed by all sides
including Georgia, stated that:
―The Russian battalion of the peacekeeping forces is the guarantor
52
of relative stability in the conflict zone.‖
c. On 31 March 1999, Georgia, together with Russia, and the North
Ossetian and South Ossetian sides, signed a Decision of the Joint Control
Commission recording that the ―peacekeeping forces keep on being a
major sponsor of the peace and [a] calm life‖. 53
2.17 In fact, the presence of the Joint Peacekeeping Forces and the negotiation
process within the JCC helped to maintain relative order and stability in South
Ossetia for a lengthy period of time, i.e. until 2004, and even beyond, in spite of
repeated attempts by the new leadership of Georgia to destabilise the conflict
area.
51
Regulation concerning the Basic principles of Operation of the Military Contingents and of
the Groups of Military Observers Designated for the Normalization of the Situation in the
Zone of the Georgian-Ossetian Conflict, 6 December 1994, Annex No. 1 to the JCC Decision
of 6 December 1994, GM, Vol. III, Annex 114.
52
Joint Control Commission for the Settlement of the Georgian-Ossetian Conflict, Decision
on the Joint Forces for the Maintenance of Peace (6 December 1994). Annex 43.
53Joint Control Commission for the Settlement of the Georgian-Ossetian Conflict, Decision
on the activities of the Joint Peacekeeping Forces; on cooperation between law enforcement
agencies of the Parties in the area of the Georgian-Ossetian conflict, Annex 1 to Protocol
No.9 of the meeting of the Joint Control Commission (31 March 1999). Annex 47. 24
B. ABKHAZIA:
RUSSIA‘S ROLE AS FACILITATOR,
54
AS RECOGNISED BY THE UNITED NATIONS
2.18 For an insight into the Georgian-Abkhaz conflict that commenced in
1992, the Court is also referred to the Report of the Representative of the
Secretary-General on the human rights of internally displaced persons dated 24
March 2006. This characterises the conflict as indeed ―the Georgian-Abkhaz
conflict‖.55 There is no suggestion in the Report of Russian responsibility for
ethnic cleansing in Abkhazia.
2.19 On 27 July 1993, a ceasefire agreement was concluded between Georgia
and the Abkhaz authorities, with the mediation of the Deputy Foreign Minister
of Russia acting as facilitator. 56The parties called for the Security Council to
deploy international peacekeeping forces in the conflict zones in Abkhazia,
although it was stated that the ―task may be shared, subject to consultation with
54
See also Chapter IV, Section II (A) below, where Russia‘s role as facilitator is also
considered in the context of the negotiations on which Georgia relies for the purposes of
Article 22 of CERD.
55U.N. Economic and Social Council, Commission on Human Rights, 62nd session, Specific
groups and individuals: mass exoduses and displaced persons, Report of the Representative of
the Secretary-General on the human rights of internally displaced persons, Walter Kälin,
Addendum: Mission to Georgia (21 to 24 December 2005), U.N. Doc. E/CN.4/2006/71/Add.7
(24 March 2006). See e.g. para. 12: ―Throughout the Georgian-Abkhaz conflict, both parties
[i.e. Georgia and Abkhazia] launched attacks on civilians designed to terrorize ethnic
populations and drive them from particular areas, to the extent that the Security Council was
‗deeply concerned […] at reports of ‗ethnic cleansing‘ and other serious violations of
international humanitarian law‘.‖ Annex 58. This passage of the Report has been omitted
from the annex (Annex 40) to Georgia‘s Memorial.
56U.N. Security Council, Report of the Secretary-General in pursuance of Security Council
Resolution 849 (1993) UN Doc. S/26250 (6 August 1993), para. 3. Annex 29. See also
Security Council Resolution 849, 9 July 1993, authorising the Secretary-General to deploy an
observation mission in Abkhazia (later known as UNOMIG). 25
the United Nations, by the Russian military contingent temporarily deployed in
the zone‖. 57 When the Abkhaz side violated the cease-fire in September 1993,
that violation was strongly condemned by the President of the Security
Council, 58 and also by the Russian representative to the Security Council, as
follows:
―The Government of the Russian Federation, in the firmest possible way,
called on the Abkhazian side to bring to a halt its flouting of human rights
and its massive ―ethnic cleansing‖, to cease its looting and banditry and to
return to the Sochi agreements. If this is not done, we can in no way
consider the lifting of our Russian sanctions against Abkhazia‖. 59
60
2.20 On 19 October 1993, with the active support of Russia, the Security
Council adopted Resolution 876, reaffirming its ―strong condemnation of the
grave violation by the Abkhaz side of the Cease-fire Agreement of 27 July 1993
… and subsequent actions in violation of international humanitarian law‖. 61
Pursuant to paragraph 9 of Resolution 876, the Security Council also reiterated:
―its support for the efforts of the Secretary-General and his Special
Envoy, in cooperation with the Chairman-in-Office of the Conference on
Security and Cooperation in Europe (CSCE) and with the assistance of the
Government of the Russian Federation as a facilitator, to carry forward
the peace process with the aim of achieving an overall political
settlement.‖
57Ibid., paras. 6 and 10.
58
U.N. Security Council, Statement by the President of the Security Council of 17 September
1993, U.N. Doc. S/26463 (6 October 1993). Annex 31.
59Provisional Verbatim Record of the 3295 Meeting of 19 October 1993 (S/PV.3295), p. 7,
GM Annex 12.
60 th
Provisional verbatim record of the 3295 Meeting of the Security Council held on 19
October 1999 (S/PV.3295), GM Annex 12.
61
Security Council Resolution 876, GM Annex 11. 26
2.21 Direct talks were held between Georgia and Abkhazia in Geneva on 30
November and 1 December 1993. As the Memorandum of Understanding signed
by Georgia and the Abkhaz side recorded: ―The first round of negotiations on a
comprehensive settlement of the Georgian-Abkhaz conflict took place in
Geneva from 30 November to 1 December 1993, under the aegis of the United
Nations, with the Russian Federation as facilitator and a representative of the
Conference on Security and Cooperation in Europe (CSCE).‖ 62 This marked the
start of the so-called Geneva Process that became the main channel of
negotiations for more than a decade. In parallel, a Group of Friends of the UN
Secretary-General (composed of Russia, the United States, the United Kingdom,
France and Germany) started to function as a contact group of the international
community on the Abkhaz issue.
2.22 In early 1994, Russia and Georgia continued to seek deployment of an
international peacekeeping force. In a joint letter of 4 February 1994 from
Presidents Yeltsin and Shevardnadze to the Security Council, it was stated:
―We once again propose that the Security Council consider, in the very
near future, the question of a peace-keeping operation to be carried out by
the United Nations or with its authorization, relying, if necessary, on a
63
Russian military contingent.‖
62
Memorandum of Understanding between the Georgian and the Abkhaz sides at the
negotiations held in Geneva, 1 December 1993
(U.N. Security Council, Appendix to the Letter dated 9 December 1993 from the Permanent
Representative of Georgia to the United Nations addressed to the Secretary-General, UN Doc.
S/26875, 15 December 1993). Annex 33. The Georgian and Abkhaz sides committed
themselves not to resort to force, to exchange prisoners of war, to create conditions for a
return of the displaced persons, and to establish a group of experts in order to discuss the
political status of Abkhazia.
63
U.N. Security Council, Letter dated 4 February 1994 from the Representatives of Georgia
and the Russian Federation addressed to the Secretary-General, U.N. Doc. S/1994/125 (7
February 1994). Annex 34. 27
2.23 Thus Georgia could not have been further from opposition to a Russian
military presence, and Russia‘s role as facilitator was no less welcomed by the
international community. Reporting to the UN Security Council on 18 March
1994, the UN Secretary-General expressed his ―warm appreciation for the close
support extended to the efforts of [his] Special Envoy by the Russian Federation,
64
in its role of facilitator‖.
2.24 On 4 April 1994, concrete steps were made by the Georgian and Abkhaz
sides in the resolution of their dispute by way of conclusion of the ―Declaration
on measures for a political settlement of the Georgian/Abkhaz conflict‖ and also
the Quadripartite Agreement on voluntary return of refugees and displaced
persons (the latter being signed by the Georgian and Abkhaz sides as ―the
65
Parties‖ and also by Russia and the UN High Commissioner for Refugees).
The Declaration of 4 April 1994, inter alia, provided:
―5. The parties [i.e. the Georgian and Abkhaz sides] reaffirm their request
for the early deployment of a peacekeeping operation and for the
participation of a Russian military contingent in the United Nations peace-
keeping force, as stated in the Memorandum of Understanding of 1
Decembe661993 (S/26875, annex) and the communiqué of 13 January
1994.‖
2.25 The Quadripartite Agreement did contain specific provisions relating to
the right of voluntary return of displaced persons/refugees, as stated in Georgia‘s
Memorial. However, the relevant obligations were placed on the Georgian and
64U.N. Security Council, Report of the Secretary-General concerning the situation in
Abkhazia, Georgia, U.N. Doc. S/1994/312 (18 March 1994), para. 14. Annex 35.
65
Declaration on measures for a political settlement of the Georgian/Abkhaz conflict signed
on 4 April 1994; Quadripartite agreement on voluntary return of refugees and displaced
persons signed on 4 April 1994 (U.N. Security Council, Letter dated 5 April 1994 from the
Permanent Representative of Georgia to the United Nations addressed to the President of the
Security Council, U.N. Doc. S/1994/397, 5 April 1994, Annexes I and II). Annex 36.
66
Ibid., Annex I. 28
Abkhaz sides as ―the Parties‖, as is perfectly clear from the face of the
Agreement. It is quite wrong to state that the obligations were also imposed on
67
Russia.
2.26 On 14 May 1994, the Georgian and Abkhaz sides signed in Moscow the
Agreement on a Cease-Fire and Separation of Forces (the ―Moscow
Agreement‖), which was to become the main framework for further conflict
68
settlement. In addition to defining the terms of the ceasefire, the Agreement,
inter alia, provided:
―2. The armed forces of the parties shall be separated in accordance with
the following principles:
(a) … ;
(b) The peacekeeping force of the Commonwealth of Independent States
and the military observers, in accordance with the Protocol to this
Agreement, shall be deployed in the security zone to monitor compliance
69
with this Agreement; ….‖
2.27 Thus, in the absence of deployment of international peacekeeping forces
pursuant to a UN mandate (as had been expressly sought by both Georgia and
Russia), the Georgian and Abkhaz sides sought and agreed to the deployment of
a peacekeeping force under the auspices of the Commonwealth of Independent
67Cf. GM, para. 6.48. The Quadripartite Agreement commences as follows: ―The Abkhaz and
Georgian sides, hereinafter referred to as the Parties, the Russian Federation and the United
Nations High Commissioner for Refugees, ….‖ The obligations to which Georgia refers are
all, expressly, confined to the ―Parties‖. Certain obligations were expressly agreed to by
Russia, such as the guarantee of unimpeded transport of humanitarian supplies through its
territory.
68Agreement on a cease-fire and separation of forces, signed in Moscow on 14 May 1994
(U.N. Security Council, Letter dated 17 May 1994 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, U.N. Doc.
S/1994/583, 17 May 1994). Annex 37.
69
Ibid., Annex I, para. 2. 29
States (CIS). The CIS Council of Heads of States confirmed the deployment of a
CIS peacekeeping pursuant to a decision taken on 22 August 1994, expressly by
reference to ―the appeal of the Abkhaz side of 15 May 1994 and the one of the
Georgian side of 16 May of 1994 on an immediate deployment of collective
70
peacekeeping forces of the CIS participating states in the conflict zone‖.
2.28 The Security Council, by Resolution 934:
―2. Note[d] with satisfaction the beginning of Commonwealth of
Independent States (CIS) assistance in the zone of conflict, in response to
the request of the parties, on the basis of the 14 May 1994 Agreement on
a Cease-fire and Separation of Forces (S/1994/583, Annex I), in continued
coordination with the United Nations Observer Mission in Georgia
(UNOMIG), and on the basis of further coordinating arrangements with
UNOMIG to be agreed by the time of the Council's consideration of the 71
Secretary-General's recommendations on the expansion of UNOMIG.‖
2.29 The ―Geneva process‖ of negotiations continued, although there was of
course no final resolution of the conflict, and sporadic outbursts of violence
occurred. Russia continued to act, and to be welcomed as acting, as facilitator –
as is evidenced by a long series of Security Council resolutions and reports of
the Secretary-General. Criticism of the acts of Russia is notably absent from
those resolutions and reports. Further, it was open to Georgia, as a member of
the CIS, to vote against the continued presence of the CIS peacekeeping force in
70
Commonwealth of Independent States, Council of the Heads of State, Decision on the use
of the Collective Forces for the Maintenance of Peace in the area of the Georgian-Abkhaz
conflict (22 August 1994), para. 1. Annex 40.
71U.N. Security Council, Resolution 934 (1994), U.N. Doc. S/RES/934 (30 June 1994),
emphasis added. Annex 38. Pursuant to Resolution 937, the Security Council adopted a
renewed UNOMIG mandate that included at para. 6(i): ―To maintain close contacts with both
parties to the conflict and to cooperate with the CIS peace-keeping force and, by its presence
in the area, to contribute to conditions conducive to the safe and orderly return of refugees
and displaced persons‖. U.N. Security Council, Resolution 937 (1994), U.N. Doc. S/RES/937
(21 July 1994). Annex 39. 30
Abkhazia. Moreover, Georgia was entitled unilaterally to discontinue the
peacekeeping operation, but it did not do so (until 1 September 2008). 73
2.30 Just as with respect to South Ossetia, the presence of Russian
peacekeepers in Abkhazia depended on Georgian consent. If Georgia believed
that Russia was or had been engaged in egregious acts of racial discrimination in
Abkhazia (and South Ossetia), there is a very obvious question as to why it
consented to the presence of Russian peacekeepers / why it did not terminate
their military presence.
C. DEVELOPMENTS FROM 2004
2.31 The change in Government in Georgia in November 2003 was
accompanied by a new and more belligerent approach to the regimes in
Abkhazia and South Ossetia, and a deterioration in relations with Russia. As
noted in the Independent International Fact-Finding Mission on the Conflict in
Georgia:
―After an initial short period which even showed some promising signs,
relations between Russian President Vladimir Putin and the newly elected
Georgian President Mikheil Saakashvili soon became tense. The political
climate deteriorated rapidly. Military spending in Georgia under President
Saakashvili´s rule increased quickly from below 1 % of GDP to 8 % of
GDP, and there were few who did not see this as a message. …
… While relations between Georgia and Russia were in a period of
continued deterioration, marked by incidents as well as by unfriendly and
72Commonwealth of Independent States, Council of Heads of State, Decision on the stay of
the Collective Peace-Keeping Forces in the conflict zone in Abkhazia (Georgia) and on
measures aimed at further settlement of the conflict (7 August – 19 September 2003). Annex
54. See also GM, Annex 136.
73
Commonwealth of Independent States, Council of Heads of State, Decision on the
discontinuance of the activities of the Collective Forces for the Maintenance of Peace in the
area of the Georgian-Abkhaz conflict (10 October 2008). Annex 71. 31
sometimes even bellicose rhetoric, the United States assumed a clear lead
among Tbilisi‘s foreign policy partners. The US gave their determined
political support to Georgia and to President Saakashvili personally,
culminating in President Bush‘s famous ―beacon of liberty‖ speech in
Tbilisi on 10 May 2005. The US provided generous economic assistance,
too. Georgia became one of the most important recipients of US aid on a
per capita basis. Most importantly, the US embarked upon an extensive
military aid programme for Georgia, both in term74of training and
equipment, also providing financial means.‖
2.32 So far as concerns South Ossetia, in June 2004, Georgia undertook a
military operation against Tskhinvali, the aims of which have been described by
its then Foreign Minister, Salomé Zourabichvili, as follows:
―A la suite d[e] … provocations, la tension monte. Les réunions du
Conseil national de sécurité se succèdent. Le ministre de la Défense
explique comment sécuriser nos populations. Il faut ―prendre‖ Tskhinvali.
La stratégie est claire: il faut trois heures pour occuper les hauteurs, et qui
contrôle les hauteurs tient Tskhinvali. …
C‘est Micha [Saakachvili] qui decide et il va donner son feu vert à
l‘offensive éclair. Elle va échouer très vite. …
Quelles que soient ses excuses et justifications, [la Géorgie] avait parlé le
langage des armes, avait perdu des hommes et des positions, et, sur le plan
politique, une partie du crédit dont elle jouissait…
Après ces incidents, la frontière administrative se durcit, les relations
75
entre les entités se tendent. Et cette tension ne retombera plus jamais‖.
74
Independent International Fact-Finding Mission on the Conflict in Georgia, Report, vol. I
(September 2009), pp. 14-15. Annex 75.
75
Salomé Zourabichvili, ―La tragédie géorgienne 2003-2008‖ (Paris, 2008), pp. 58-62. Annex
73. Translation into English:
―Following the … provocations, tensions rise. Meetings of the National Security Council
come one after another. The Defense Minister explains how to protect our population. We
need to ―take‖ Tskhinvali. The strategy is clear: three hours are needed to occupy the heights,
and the one who controls the heights controls Tskhinvali. …
It is Misha [Saakashvili] who takes the decision, and he would give a green light to the
lightning offensive. It would fail very soon. … 32
2.33 Since August 2006, Georgia has boycotted the work of the JCC. In
November, simultaneously with elections in South Ossetia, Georgia held
76
elections to parallel power structures in ethnic Georgian villages of the region.
In April 2007, the ―provisional administration of South Ossetia‖ was officially
established by Tbilisi in the ethnic Georgian village of Kurta to the north of
Tskhinvali. 77
2.34 So far as concerns Abkhazia, in July 2006, Georgia sent troops to its
north-eastern most part, the Kodori gorge. The area was renamed ―Upper
Abkhazia‖ by Georgia, and a ―government of Abkhazia‖ was established in the
Kodori village of Chkhalta. This led to severely increased tension in the region
and, pursuant to Resolution 1716 (2006), the Security Council:
―3. … expresse[d] its concern with regard to the actions of the Georgian
side in the Kodori Valley in July 2006, and to all violations of the
Moscow agreement on ceasefire and separation of forces of 14 May 1994,
and other Georgian-Abkhaz agreements concerning the Kodori Valley;
4. Urge[d] the Georgian side to ensure that the situation in the upper
Kodori Valley is in line with the Moscow agreement and that no troops
unauthorized by this agreement are present;
Whatever its excuses and justifications, [Georgia] spoke with the language of arms, lost men
and positions and, in the political field, a part of the credit that it had enjoyed.
After these incidents, the administrative boundary consolidated, and the relations between the
entities aggravated. And this tension would never come to an end‖.
76―S. Ossetia Quiet After Rival Polls‖, Civil Georgia, Daily News Online (12 November
2006). Annex 62.
77
―MPs Pass Draft Law on S. Ossetia with Final Hearing‖, Civil Georgia, Daily News Online
(13 April 2007). Annex 64. ―S.Ossetian Alternative Leader to Address Georgian Parliament‖,
Civil Georgia, Daily News Online (7 May 2007). Annex 65. 33
5. Note[d] with satisfaction the resumption of joint patrols in the upper
Kodori Valley by UNOMIG and the CIS peacekeeping force and
reaffirms that such joint patrols should be conducted on a regular basis;
6. Urge[d] both parties to comply fully with previous agreements and
understandings regarding ceasefire, non-use of violence and confidence-
building measures, and stresse[d] the need to strictly observe the Moscow
Agreement on Ceasefire and the Separation of Forces in the air, on the sea
and on land, including in the Kodori Valley;
7. Acknowledge[d] the important role of the CIS peacekeeping force and
of UNOMIG in the Georgian-Abkhaz conflict zone, stresse[d] the
importance of close and effective cooperation between UNOMIG and the
CIS peacekeeping force as they currently play a stabilizing role in the
conflict zone, look[ed] to all sides to continue to extend the necessary
cooperation to them and recall[ed] that a lasting and comprehensive
settlement of the conflict will require appropriate security guarantees;
8. Once again urge[d] the Georgian side to address seriously legitimate
Abkhaz security concerns, to avoid steps which could be seen as
threatening and to refrain from milit78t rhetoric and provocative actions,
especially in upper Kodori Valley.‖
2.35 Thus, so far as the international community was concerned, it was the acts
of Georgia that were leading to ―legitimate Abkhaz security concerns‖, whilst
―the important role of the CIS peacekeeping force‖ was once again recognised.
2.36 To sum up, by 2007, Georgia had employed force against both Abkhazia
and South Ossetia; parallel structures of power had been created by Georgia for
both regions; the negotiating processes were scarcely being used; and Georgia‘s
military preparations were continuing. The former Foreign Minister of Georgia
describes this process:
―A partir de 2007, l‘arrivée d‘un nouveau ministre de la Défense, de
double nationalité géorgienne et israélienne, coïncide avec un bond en
avant dans l‘acquisition d‘armements: de plus en plus sophistiqués, de
78U.N. Security Council, Resolution 1716 (2006), U.N. Doc. S/RES/1716 (13 October 2006).
Annex 60. 34
plus en plus chers, de plus en plus nombreux. Ainsi le budget de la
Défense dépasse-t-il le quart des dépenses dans le budget 2007. …
[On voit] de la rhétorique de la guerre qui ne cache pas ses desseins en
direction des territoires perdus….
Ainsi derrière une façade – une politique de défense destinée à protéger le
territoire des incursions qui entachent la souveraineté territoriale –, on voit
se mettre en place une politique d‘armement et d‘équipement qui
correspondrait avantage à des intentions de revanche militaire et de
79
réintégration par la force des terres perdues‖.
2.37 According to the former Foreign Minister of Georgia, the second half of
2007 and the first half of 2008 was marked by a further Georgian military build-
up.80 The Independent International Fact-Finding Mission on the Conflict in
Georgia describes the events leading to August 2008 as follows:
―Already in spring 2008, a critical worsening of the situation in the
Georgian-Abkhaz conflict zone could be observed. One of the sources of
tension was the intensification of air activities over the zone of conflict,
including flights over the ceasefire line both by jet fighters and by
unmanned aerial vehicles (UAVs). A number of Georgian UAVs were
reportedly shot down by Abkhaz and Russian forces. In April 2008, the
Russian-staffed CIS PKF was reinforced by additional troops and in late
79Salomé Zourabichvili, ―La tragédie géorgienne 2003-2008‖ (Paris, 2008), pp. 137-139.
Annex 73.
Translation into English:
―Starting from 2007, the arrival of a new Defense Minister, with double Georgian and Israeli
nationality, coincides with a leap in the acquisition of armaments: more and more
sophisticated, more and more expensive, more and more numerous. Thus, the defense budget
surpassed a quarter of the overall budget expenses in 2007. …
Rhetoric of war [was seen], not hiding its aims towards the lost territories. …
Thus, behind the appearance of a defense policy aimed at protecting the territory from
incursions threatening the territorial sovereignty, a policy of armament and of equipment was
being put in place, rather corresponding to the intentions of a military revanche and of a
forcible reintegration of the lost lands.‖
80
Salomé Zourabichvili, op. cit., at pp. 314-316, 322. Annex 73. 35
May 2008, a Russian military railway unit was sent to Abkhazia to
rehabilitate the local railway, allegedly for humanitarian purposes, in spite
of Georgian protests. The spring events were followed in summer 2008 by
bombings of public places on the Abkhaz side of the ceasefire line, as
well as roadside explosions on the Georgian side. In the course of summer
2008, the main focus of tension then shifted from the Georgian-Abkhaz to
the Georgian-Ossetian conflict zone, triggered by subversive attacks as
well as by intensified exchanges of fire between the Georgian and South
Ossetian sides, including mortar and heavy artillery fire. In early July the
conflict already seemed on the verge of outbreak as diplomatic action
intensified at the same time. In mid-July, a yearly US-led military exercise
called ―Immediate Response‖ took place at the Vaziani base outside
Tbilisi, involving approximately 2 000 troops from Georgia, the United
Sates, Armenia, Azerbaijan and Ukraine. During the period of 15 July – 2
August 2008, Russian troops carried out large-scale training exercises in
the North Caucasus Military District, close to the Russian-Georgian
border as well as on the Black Sea. In early August, the South Ossetian
authorities started to evacuate their civilian population to locations on the
territory of the Russian Federation. Indeed, the stage seemed all set for a
military conflict.‖81
2.38 In his report of 23 July 2008 on the situation in Abkhazia, the Secretary-
General ―appeal[ed] to the Abkhaz side to observe the freedom of movement of
UNOMIG and to the Georgian side to observe the freedom of movement of the
CIS peacekeeping force in their respective areas of responsibility‖. 82 He
noted, with respect to relations between Georgia and Russia, that:
―against the background of already strained relations between the Russian
Federation and Georgia, developments during the period under review
have brought differences between the two countries to a new level, with
Georgia blaming Russia for ―accelerated annexation‖ of Abkhazia and
Russia accusing Georgia of prepa83ng for the imminent implementation of
a military option in Abkhazia.‖
81Independent International Fact-Finding Mission on the Conflict in Georgia, Report, vol. I
(September 2009), pp. 18-19. Annex 75.
82
U.N. Security Council, Report of the Secretary-General on the situation in Abkhazia,
Georgia, U.N. Doc. S/2008/480 (23 July 2008), para 73. Annex 69.
83Ibid., para. 75. 36
2.39 To similar effect, the report notes that as of April 2008, Georgia had
protested strongly against Russia‘s action in ―authorizing direct relations with
the Abkhaz and South Ossetian de facto authorities in a number of fields‖,
which action was considered by Georgia as ―a blatant violation of Georgia‘s
sovereignty and territorial integrity, amounting to legalizing a factual annexation
of Abkhazia and South Ossetia‖. 84 In May 2008, Georgia had responded to the
repair by unarmed units of Russian railway troops of the Sochi to Ochamchira
line by accusing Russia of annexation. 85
2.40 Such accusations of annexation form the backdrop to Georgia‘s use of
force in August 2008.
D. GEORGIA‘S USE OF FORCE IN AUGUST 2008
2.41 At the outset of Georgia‘s extended treatment of the facts in its Memorial,
it is said that ―Russia‘s discriminatory acts commenced simultaneously with the
opening of large-scale hostilities on 7 August 2008‖ and that:
―In an effort to avoid full-scale war, Georgia declared a unilateral cease-
fire on 7 August. … Massive attacks on Georgian villages in South
Ossetia and adjacent districts, combined with the large-scale intervention
of Russian military units through the Roki tunnel, compelled Georg86 to
initiate a defensive operation around midnight on 7 August.‖
84Ibid., paras. 8-9.
85
Ibid., paras. 10-11.
86GM, para. 3.3 and footnote 54. The Court will also recall that, at the provisional measures
phase, Georgia‘s use of force from 7 August 2008 was being portrayed as a limited and
defensive measure. See e.g. Georgia‘s Application of 12 August 2008, para. 77: ―In response
to the persistent shelling of ethnic Georgian villages in South Ossetia by separatist forces,
Georgian military forces launched a limited operation into territory held by ethnic separatists
on 7 August 2008 for purposes of putting a stop to the attacks. Seizing the opportunity to
realize its goal of an ethnically homogenous and compliant South Ossetia, Russia responded 37
2.42 That version of events is notably inconsistent with the findings of the
Independent International Fact-Finding Mission on the Conflict in Georgia, as
follows:
at paragraph 14:
―Open hostilities began with a large-scale Georgian military operation
against the town of Tskhinvali and the surrounding areas, launched in the
night of 7 to 8 August 2008. Operations started with a massive Georgian
artillery attack.‖
at paragraph 19:
―There is the question of whether the use of force by Georgia in South
Ossetia, beginning with the shelling of Tskhinvali during the night of 7/8
August 2008, was justifiable under international law. It was not.‖
at paragraph 20:
―At least as far as the initial phase of the conflict is concerned, an
additional legal question is whether the Georgian use of force against
Russian peacekeeping forces on Georgian territory, i.e. in South Ossetia,
might have been justified. Again the answer is in the negative. There was
no ongoing armed attack by Russia before the start of the Georgian
operation. Georgian claims of a large-scale presence of Russian armed
forces in South Ossetia prior to the Georgian offensive on 7/8 August
could not be substantiated by the Mission.‖ 87
2.43 These are relevant facts, even at this phase of the proceedings. The Court
needs to be able to determine, not the underlying facts of a dispute, but rather
the nature of the dispute itself. The true characterisation of the events of 7-8
August 2008 is critical to that issue as (i) they are at the heart of the real dispute
in this case between Georgia and Abkhazia/South Ossetia which concerns the
legal status of Abkhazia and South Ossetia, as to which dispute (ii) Georgia has
already had recourse to use of force instead of peaceful dispute settlement.
with a full-scale invasion of Georgian territory on 8 August 2008.‖ See also Georgia‘s
Request for Provisional Measures of 14 August 2008, para. 5.
87Independent International Fact-Finding Mission on the Conflict in Georgia, Report, vol. I
(September 2009), pp. 19-23. Annex 75. Emphasis added. 38
2.44 It is of course the case that Georgia now seeks to characterise all events as
going to CERD and unlawful racial discrimination under CERD. However,
Georgia‘s characterisations in this respect cannot be relied upon any more than
its after the fact description of the events of 7-8 August 2008. Indeed, Georgia‘s
characterisation of those events has changed over time, as the Fact-Finding
Mission report records:
―At the very outset of the operation the Commander of the Georgian
contingent to the Joint Peacekeeping Forces (JPKF), Brigadier General
Mamuka Kurashvili, stated that the operation was aimed at restoring the
constitutional order in the territory of South Ossetia. Somewhat later the
Georgian side refuted Mamuka Kurashvili‘s statement as unauthorised
and invoked the countering of an alleged Russian invasion as justification
of the operation. The official Georgian information provided to the
Mission says in this regard that ―to protect the sovereignty and territorial
integrity of Georgia as well as the security of Georgia‘s citizens, at 23.35
on August 7, the President of Georgia issued an order to start a defensive
operation ….‖ 88
* * *
2.45 As Georgia‘s own Brigadier General said at the time, Georgia‘s military
operation of August 2008 ―was aimed at restoring the constitutional order in the
territory of South Ossetia‖. On the true facts, the real dispute does indeed
concern the conflict between Georgia on the one hand and Abkhazia and South
Ossetia on the other, in relation to the legal status of Abkhazia and South
Ossetia, and Georgia was indeed seeking to resolve that dispute by use of force.
2.46 In Chapter III, which follows, Russia turns to the question of whether,
nonetheless, there could somehow be said to be a dispute between Georgia and
Russia concerning the interpretation or application of CERD.
88Ibid., vol. I, p. 19, para. 14, emphasis added. CHAPTER III
FIRST PRELIMINARY OBJECTION:
THERE IS NO DISPUTE BETWEEN THE PARTIES REGARDING THE
INTERPRETATION OR APPLICATION OF CERD
Section I. Introductory observations
3.1 The Court should be under no illusions as to the genesis of the so-called
―dispute‖ that is asserted by Georgia in these proceedings.
3.2 This is a ―dispute‖ manufactured by Georgia with a view to meeting the
first of the requirements of Article 22 of CERD, and thereby establishing the
compulsory jurisdiction of the Court. Pursuant to Article 22, the jurisdiction of
the Court is, of course, predicated on the existence of a ―dispute between two or
more State Parties with respect to the interpretation or application of this
Convention‖.
3.3 This is a ―dispute‖ which, according to Georgia dates back to 1991. It is a
―dispute‖ in which it is alleged that Russia has responsibility for (amongst other
things) the killing of thousands of civilians and the forced displacement of over
89
300,000 people. It is a ―dispute‖ in which it is alleged that ―Russia‘s conduct
90
constitutes ethnic cleansing on a massive scale‖. And yet it is a ―dispute‖ that
was never mentioned to Russia until the date of Georgia‘s Application to this
Court, i.e. 12 August 2008.
89See Georgia‘s Application of 12 August 2008, paras. 5-6 (allegations concerning the first of
the alleged ―three distinct phases of its interventions in South Ossetia and Abkhazia‖). See
also e.g. GM, para. 1.4: ―As a result of Russia‘s discriminatory conduct, more than 200,000
ethnic Georgians have been forcibly and permanently displaced from their homes in Abkhazia
in 1992-1994 and again in 2008. Over 30,000 more ethnic Georgians have been forcibly
displaced from their places of residence in South Ossetia in 1991-1992 and again in 2008.‖
90See GM, para. 1.5. 40
3.4 Russia‘s position is straightforward: there was no dispute between the
Parties with respect to the interpretation or application of CERD prior to 12
August 2008, and no dispute could somehow be brought into existence by
Georgia‘s Application. States are not to be permitted to come to the Court to
make, for the first time, allegations of the most serious nature against a close
neighbour (with whom they are in regular contact in one forum or another), to
await the denial of those allegations in the course of oral argument before the
Court, and then to say that there is a dispute. This is all the more so where, as
noted in Chapter I above, Georgia has first elected to take into its own hands
resolution of the real dispute concerning the conflict between Georgia /
Abkhazia / South Ossetia in relation to the legal status of Abkhazia and South
Ossetia – through the (unlawful) commencement of military operations on 7
August 2008. Georgia‘s approach to the seisin of the Court in this case cuts
across the wording of Article 22 of CERD, and undermines the fundamental
principles on the peaceful settlement of disputes.
3.5 As noted further below, the general rule applied by the Court is that the
dispute relied on must have come into existence as at the date of the application
instituting proceedings. That rule is applied in a manner consistent with
principles of the sound administration of justice – which in this case strongly
support application of the general rule. It follows that, in the absence of any
relevant dispute prior to 12 August 2008, the Court lacks jurisdiction in this
case.
3.6 In this Chapter, Russia first identifies the principles that the Court applies
in assessing whether there is a dispute with respect to the interpretation or
application of a given treaty before it (Section II), before examining the relevant
background to the existence of the so-called ―dispute‖ alleged by Georgia
(Section III) and applying, by way of conclusion, the criteria developed by the 41
Court to determine whether there is in this case a dispute before the Court within
Article 22 of CERD (Section IV).
3.7 Before turning to these issues, Russia makes three further initial
observations, all of which underscore the point that Georgia is asking the Court
to assert jurisdiction in a manner that is inconsistent with both State practice and
the Court‘s past jurisprudence.
3.8 First, it is self-evident that the immediate backdrop for the alleged dispute
is the armed conflict of August 2008, precipitated by Georgia, and described by
the Independent International Fact-Finding Mission report as
―a combined inter-state and intra-state conflict, opposing Georgian and
Russian forces at one level of confrontation as well as South O91etians
together with Abkhaz fighters and the Georgians at another‖.
3.9 Even leaving to one side the fact that it was Georgia‘s use of force that led
to armed conflict, the Court should be very wary in considering whether one of
the parties to an armed conflict should be permitted to invoke a previously
unmentioned human rights treaty in order to secure the jurisdiction of this Court.
Armed conflicts commonly arise in the context of some form of inter-ethnic
conflict. If each such conflict is now to be brought before the Court in a way
never envisaged by (i) the drafters or (ii) the Parties to CERD, or (iii) the
Committee established to supervise the application of CERD or, in this case, (iv)
the specific States Parties concerned during the 17 years of the so-called
―dispute‖, the risk is that States may start to retreat from this and other widely
91Independent International Fact-Finding Mission on the Conflict in Georgia, Report, vol. I
(September 2009), p. 10. Annex 75. 42
ratified human rights treaties. Thus, Georgia‘s claim to jurisdiction in this case
92
may in fact undermine the international system of human rights protection.
3.10 In this respect, Georgia does accept the context of use of force and
93
international humanitarian law (IHL) in which it initiated its claim. It then
seeks to portray its claims as deriving from CERD, not IHL. However, given the
obvious and applicable IHL context, it is useful to recall that, at the time of the
drafting of the 1949 Geneva Conventions, States expressly considered a
common provision providing for the compulsory jurisdiction of the Court. That 94
provision was rejected. Instead, the 1949 Diplomatic Conference adopted a
recommendation as follows (based on a suggestion put forward by the United
Kingdom):
―The Conference recommends that in the case of a dispute relating to the
interpretation or application of the present Convention which cannot be
settled by other means, the High Contracting Parties concerned endeavour
92See also the concerns reflected in the travaux préparatoires when forms of dispute
settlement procedures were being considered for CERD, e.g. in the remarks of the Jordanian
representative on the General Assembly Third Committee: ―Some Governments would no
doubt find it impossible to resist the temptation of using the international machinery for
political ends, but that should not prevent the United Nations from seeking to build an
international community capable of guaranteeing the principles of human justice and basic
rights.‖ U.N. General Assembly, 20th session, Official Records, Third Committee, Record of
the 1347th meeting, U.N. Doc. A/C.3/SR.1347 (18 November 1965), p. 338, para. 32. Annex
13.
93
See GM, para. 1.8: ―Although the case was initiated in the context of Russia‘s unlawful use
of force in August 2008, and Russia‘s widespread violation of international humanitarian and
human rights law, Georgia does not ask the Court to make any findings in relation to those
issues.‖
94
The following common provision was in the original draft of all four Geneva Conventions
(at Articles 4lA, 45A, 119D, 130D): ―The High Contracting Parties who have not recognized
as compulsory ipso facto and without special agreement, in relation to any State accepting the
same obligation, the jurisdiction of the International Court of Justice in the circumstances
mentioned in Article 36 of the Statute of the Court, undertake to recognize the competency of
the Court in all matters concerning the interpretation or application of the present
Convention.‖ 43
to agree between th95selves to refer such dispute to the International
Court of Justice.‖
3.11 In the words of the representative of the United Kingdom:
―In adopting this formula the Working Party had in mind the following
considerations: first, it avoids any reference to Article 36 of the Statute of
the Court; secondly, it expresses the idea that all other means of settling a
dispute should first be tried and then but only then the States concerned
should endeavour to agree upon reference of the dispute to the
International Court, and thirdly, it does not, since it is based on the idea of
an agreement between the Parties, suggest the possibility of one of the
Parties to the dispute refusing to recognize the jurisdiction of the Court.‖ 96
3.12 Georgia not only seeks to seise the Court of a dispute that it could not
bring under the 1949 Conventions:
a. Georgia also seeks to bypass the ―idea that all other means of settling a
dispute should first be tried and then but only then‖ there might be
recourse to the Court. This is a principle that is also reflected in the
specific negotiation and dispute settlement requirements of Article 22 of
CERD, as discussed further in Chapter IV.
b. Georgia goes even further. It seeks to establish the compulsory
jurisdiction of the Court under Article 22 of CERD in circumstances
where there was no relevant dispute. 97
95Final Record of the Diplomatic Conference of Geneva of 1949, Vol. IIB, p. 432.
96
Ibid. (emphasis added).
97It may also be recalled that, pursuant to Article 90 of Additional Protocol I, the States
Parties to the 1949 Geneva Conventions agreed to the establishment of an International Fact
Finding Commission competent (inter alia) to ―inquire into any facts alleged to be a grave
breach as defined in the Conventions and this Protocol or other serious violation of the
Conventions or of this Protocol‖ (see Article 90(2)). Russia made, on 29 September 1989, a
declaration accepting the competence of the Commission. Georgia has made no such
declaration. 44
3.13 Secondly, Russia also observes that Georgia‘s claims denote a marked
departure from the practice of States which have appeared as applicants before
the Court in cases involving allegations of inter-ethnic violence. Neither Bosnia
and Herzegovina nor Croatia invoked Article 22 of CERD in their respective
98
cases brought against Serbia and Montenegro/Serbia. The same point applies
with respect to Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Burundi). 99The exception is Armed Activities on the
Territory of the Congo (New Application: 2002) (Democratic Republic of the
Congo v. Rwanda). 100 However, the applicant in that case had adopted a
―scattergun‖ approach, invoking nine different treaties to establish the Court‘s
jurisdiction – and failing with respect to all (including CERD 101).
3.14 Finally, Russia observes that in cases where this Court has had to consider
the application of human rights treaties in situations of occupation or armed
conflict, there has been no suggestion that the Convention would also apply.
Thus, in the Wall case, the Court referred to the International Covenant on Civil
and Political Rights (ICCPR) and the Convention on the Rights of the Child, but
did not mention CERD, and this despite the fact that written observations
submitted by States had discussed the prohibition and elimination of racial
98
See Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) and Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia).
99Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Burundi), Application of 23 June 1999.
100
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J.
Reports 2002, paras. 64-67.
101
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), I.C.J. Reports 2006, pp. 34-35, paras. 74-79. 45
102
discrimination under international law. In the Congo v. Uganda case, the
Court found that Uganda had ―incited ethnic conflicts and took no action to
103
prevent such conflicts‖. The Court then determined that a number of human
104
rights instruments were both applicable and relevant to these Ugandan acts.
The list included the ICCPR, but not CERD, despite the fact that both the DRC,
as well as Uganda, had been contracting parties of CERD at all relevant
105
moments in time.
Section II. The principles to be applied in assessing
whether there is a dispute
3.15 The issue of whether there is a dispute for the purposes of Article 22 of
CERD has already been addressed by the Court, but only on a prima facie basis,
i.e. only for the purposes of exercising the Court‘s jurisdiction to indicate
provisional measures under Article 41 of the Statute. The majority of the Court
held at paragraph 112 of the Order of 15 October 2008:
―Whereas, in the view of the Court, the Parties disagree with regard to the
applicability of Articles 2 and 5 of CERD in the context of the events in
South Ossetia and Abkhazia; whereas, consequently, there appears to exist
a dispute between the Parties as to the interpretation and application of
CERD; whereas, moreover, the acts alleged by Georgia appear to be
capable of contravening rights provided for by CERD, even if certain of
these alleged acts might also be covered by other rules of international
law, including humanitarian law; whereas this is sufficient at this stage to
102See e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Written Observations of Syria, p. 5.
103
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment, I.C.J. Reports 2005, p. 240, para. 209.
104Ibid., p. 243, para. 217.
105
This may be because CERD does not apply extra-territorially. See Chapter V below. 46
establish the existence of a dispute between the Parties capable of falling
within the provisions of CERD, which is a necessary condition for the
Court to have prima facie jurisdiction under Article 22 of CERD.‖
3.16 This reasoning brings together, in very compressed form, two related but
analytically distinct concepts: first, whether there is a dispute between the
Parties and, second, whether that dispute concerns the interpretation or
application of CERD.
A. THE REQUIREMENT THAT THERE BE A DISPUTE
1. The meaning of “dispute”
3.17 With respect to the first of these two concepts, as follows from the
consistent jurisprudence of the Court and the Permanent Court:
a. As the Court held in the Nuclear Tests cases: ―The Court, as a court of
law, is called upon to resolve existing disputes between States. Thus the
existence of a dispute is the primary condition for the Court to exercise its
106
judicial function.‖
b. As stated in the Mavrommatis case: ―A dispute is a disagreement on a
point of law or fact, a conflict of legal views or of interests between two
persons.‖ 107Thus, three requirements are to be met: (i) disagreement, (ii)
on a point of law or fact, etc, (iii) between two persons. It is self-evident
that all these criteria have to be met. For example, a party would not have
a justiciable dispute if criteria (i) and (ii) were met, but the disagreement
106Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 270-271, para. 55,
emphasis added; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p.
476, para. 58.
107
Mavrommatis Palestine Concessions, Greece v. United Kingdom, Judgment (Merits), 30
August 1924, 1924 PCIJ (ser. A), No. 2, p. 11. 47
was with a third party other than the State being brought before the Court
(i.e. criterion 3).
c. The question of whether there is a disagreement is then broken down
into two further elements: there must be a claim and also positive
108
opposition to a claim. As stated in South West Africa:
―A mere assertion is not sufficient to prove the existence of a
dispute any more than a mere denial of the existence of the dispute
proves its non-existence. Nor is it adequate to show that the
interests of the two parties to such a case are in conflict. It must be
shown that the claim of one party is positively opposed by the
other.‖109
d. The question of whether there is a dispute in a given case is a matter for
110
―objective determination‖.
108
South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, 328; see also
Certain Property (Germany v. Liechtenstein) Preliminary Objections, Judgment, I.C.J.
Reports 2005, p. 6 at 18.
109
See also Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), I.C.J. Reports 2006, p. 43, para. 99: ―The
Court observes that the DRC has been a party to the WHO Constitution since 24 February
1961 and Rwanda since 7 November 1962 and that both are thus members of that
Organization. The Court further notes that Article 75 of the WHO Constitution provides for
the Court‘s jurisdiction, under the conditions laid down therein, over ―any question or dispute
concerning the interpretation or application‖ of that instrument. The Article requires that a
question or dispute must specifically concern the interpretation or application of the
Constitution. In the opinion of the Court, the DRC has not shown that there was a question
concerning the interpretation or application of the WHO Constitution on which itself and
Rwanda had opposing views, or that it had a dispute with that State in regard to this matter.‖
110
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion,
I.C.J. Reports 1950, p. 65, at 74: ―Whether there exists an international dispute is a matter for
objective determination. The mere denial of the existence of a dispute does not prove its non-
existence. In the diplomatic correspondence submitted to the Court, the United Kingdom,
acting in association with Australia, Canada and New Zealand, and the United States of
America charged Bulgaria, Hungary and Romania with having violated, in various ways, the
provisions of the articles dealing with human rights and fundamental freedoms in the Peace
Treaties and called upon the three Governments to take remedial measures to carry out their
obligations under the Treaties. The three Governments, on the other hand, denied the charges. 48
3.18 As identified further below, none of these well-established requirements
are met in this case. It is not just that Georgia failed to make any claim under
CERD prior to 12 August 2008; it also failed to make a claim that Russia could
positively oppose as to unlawful racial discrimination by Russia in Abkhazia
and/or South Ossetia. It follows that this case is to be contrasted with the
objection made by the respondent State in Military and Paramilitary Activities
in and against Nicaragua, where the substance of the dispute clearly had been
raised in bilateral negotiations, although the 1956 Treaty of Amity had not
111
specifically been referred to.
3.19 Further, consistent with the well-established requirements set out above,
including that there be (i) a claim that is (ii) positively opposed, CERD codifies
what is required for a dispute under that Convention, pursuant to its Articles 11
and 12. Thus Article 11 CERD provides as follow:
―1. If a State Party considers that another State Party is not giving effect
to the provisions of this Convention, it may bring the matter to the
attention of the Committee. The Committee shall then transmit the
communication to the State Party concerned. Within three months, the
receiving State shall submit to the Committee written explanations or
statements clarifying the matter and the remedy, if any, that may have
been taken by that State.
2. If the matter is not adjusted to the satisfaction of both parties, either by
bilateral negotiations or by any other procedure open to them, within six
months after the receipt by the receiving State of the initial
communication, either State shall have the right to refer the matter again
to the Committee by notifying the Committee and also the other State.
There has thus arisen a situation in which the two sides hold clearly opposite views
concerning the question of the performance or non-performance of certain treaty obligations.‖
111
Cf. Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and
Admissibility, Rep. 1984, pp. 428-429, para. 83; also at p. 427, para. 81, with respect to the
objection of the respondent in that case. See, paras. 4.29-4.35 below, including with respect to
other factors distinguishing the Nicaragua case. 49
3. The Committee 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 in the case, in
conformity with the generally recognized principles of international law.
This shall not be the rule where the application of the remedies is
unreasonably prolonged.
4. In any matter referred to it, the Committee may call upon the States
Parties concerned to supply any other relevant information.
5. When any matter arising out of this article is being considered by the
Committee, the States Parties concerned shall be entitled to send a
representative to take part in the proceedings of the Committee, without
voting rights, while the matter is under consideration.‖
3.20 The use of italics above seeks to emphasise two points:
a. There is no reference to the word ―dispute‖ in Article 11, which is
concerned with the communication of a ―matter‖ from one State to
112
another. That communication is then to be followed by a period of
bilateral negotiations/settlement by any other procedure and, failing this,
113
reference by either party to the Committee.
b. Consistent with this, the States concerned are at no stage referred to as
parties to a dispute.
3.21 Pursuant to Article 12(1) of CERD, an ad hoc Conciliation Commission is
then appointed to determine the matter. It is only at this stage that the States
112In the French text, ―la question‖.
113
The draft of what became Article 11(1) originally used the word ―complaint‖ in the second
sentence, but this was changed to ―communication‖ at the suggestion of the Mexican
representative. See U.N. General Assembly, 20th session, Official Records, Third Committee,
Record of the 1353th meeting, U.N. Doc. A/C.3/SR.1353 (24 November 1965), p. 371 et seq.
Annex 15. 50
parties concerned are regarded as, and referred to as, ―States parties to the
114
dispute‖. Thus, in contrast to Article 11, where that formula is carefully
avoided, there are some six references to ―States parties to the dispute‖ in
Article 12.
3.22 It follows that, for there to be a dispute for the purposes of Article 12 of
CERD, there must be (i) communication of a matter, (ii) to the Committee and
on to the other State concerned, (iii) failed negotiations/other settlement
procedures, then (iv) reference of the matter back to the Committee. It is only
then that the States Parties concerned become ―the parties to the dispute‖. There
is no suggestion in the treaty language that they are to be regarded as parties to a
dispute prior to this. Nor is there any basis for suggesting that a different
approach is to be applied in determining whether there is a dispute under Article
115
22 of CERD.
2. The point in time at which the existence (or otherwise)
of a “dispute” is to be assessed
3.23 This case brings to the fore – just as in the recent judgment in Genocide
116
(Croatia v. Serbia) – the question of whether the fulfilment of a given
jurisdictional requirement is to be assessed solely at the date of filing of an
114In the French text, ―les Etats parties au différend‖; this distinction exists in all other
authentic texts.
115
This submission goes to the correct meaning to be given to the word ―dispute‖ in Article
22 of CERD. It is separate to the question, discussed in Chapter IV below, of whether the
settlement procedures of Articles 11-13 must first be employed prior to a State having the
right to seise the Court of a dispute under Article 22.
116
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment (Preliminary Objections), 18 November 2008, at paras. 78 et
seq. 51
application. The general rule is well-established. As the Court noted in Genocide
(Croatia v. Serbia):
―In numerous cases, the Court has reiterated the general rule which it
applies in this regard, namely: ―the jurisdiction of the Court must
normally be assessed on the date of the filing of the act instituting
proceedings‖ (to this effect, see 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. 613, para. 26; cf. 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. 26, para.
44).‖117
3.24 To similar effect, the Permanent Court in Electricity Company of Sofia
and Bulgaria dismissed part of the claim on the ground that the relevant dispute
had not arisen at the time of the filing of the application. It stated:
―The last complaint adduced by the Belgian Government to the Bulgarian
Government... relates to the promulgation of the law of February 3 rd
1996....The Bulgarian Government argues that this contention of the
Belgian Government is inadmissible because the claim respecting the law
of February 3 1936 did not form the subject of a dispute between the two
Governments prior to the filing of the Belgian Application. The Court
considers this argument of the Bulgarian Government to be well-
founded... it rested with the Belgian Government to prove that, before the
filing of the Application, a dispute had ariserdbetween the Governments
respecting the Bulgarian law of February 3 1936. The Court holds that
the Belgian Government had not established the existence of such a
dispute....‖18
3.25 Also, according to Rosenne:
117
Ibid., at para. 79.
118
Electricity Company of Sofia and Bulgaria P.C.I.J. Series A/B 77 1939, at p. 83, emphasis
added. 52
―Where a case is instituted unilaterally by the filing of an application the
court‘s jurisdiction must normally be assessed as at the date of the filing
of the application instituting the proceedings. This is the date by reference
to which the existence of the dispute and the admissibility of the case are
119
normally determined.‖
3.26 So far as concerns the specific facts of this case, the majority of the Court
found in the Order of 15 October 2008 that there appeared to be a dispute, by
reference to the opposing stances taken by the Parties at the hearing of 8-10
120
September 2008. However, this is not to be considered as a departure from the
general rule, given that the Court was concerned only with the question of
whether there was prima facie a dispute.
3.27 In their joint Dissenting Opinion of 15 October 2008, seven Judges
(Judges Al-Khasawneh, Ranjeva, Shi, Koroma, Tomka, Bennouna and
Skotnikov) considered that the general rule was to be applied. They found that,
even prima facie, there was no dispute for the purposes of Article 22 of CERD:
―8. Such a dispute must exist prior to the seisin of the Court. It is for this
reason that the Court must consider whether the two Parties have
opposing views with regard to the interpretation or application of the
Convention. …
10. Moreover, the majority, unable to find any evidence that the acts
alleged by Georgia fall within the provisions of CERD, has been content
to observe merely that a dispute appears to exist as to the interpretation
and application of CERD because the two Parties have manifested their
disagreement over the applicability of Articles 2 and 5 of the Convention.
In other words, an argument expounded during oral proceedings has
mutated into evidence of the existence of a dispute between the Parties
(Order, paragraph 112)!‖
119
Rosenne, The Law and Practice of the International Court 2002-2005, 4th ed. Vol. II at p.
510.
120Order of 15 October 2008, para. 112, as set out at para. 3.15 above. 53
3.28 While Russia respectfully agrees with the minority‘s conclusions so far as
concerns the absence even prima facie of a dispute, it must be correct that, for
the purposes of ruling definitively on the question of its jurisdiction, the Court
must be satisfied that a dispute existed prior to its being seised. This follows
from:
a. The general rule referred to above; and
b. Any ordinary reading of Article 22, which provides in relevant part
that: ―Any dispute between two or more States Parties with respect to the
interpretation or application of this Convention … shall, at the request of
any of the parties to the dispute, be referred to the International Court of
Justice for decision ….‖
3.29 It follows from this wording that it is only a dispute, i.e. a pre-existing
dispute, that can be referred to the Court (subject to satisfaction of other criteria
considered in Chapter IV), and only by a party to that dispute, i.e. a party to a
pre-existing dispute. 121Put simply, if there was no dispute, the essential basis for
consent to the Court‘s jurisdiction is absent, and if Georgia was not party to a
dispute at the moment of seisin, it failed to meet a necessary criterion for
invoking the Court‘s jurisdiction. Further, the claim must of course be brought
against the other party to the dispute (as follows from the third element in
Mavrommatis identified at paragraph 3.17(b) above).
3.30 Whatever the position may be so far as concerns establishing prima facie
jurisdiction, it cannot be sufficient for present purposes that the existence of a
dispute between the Parties be established by the argument expounded during
121See also the Russian text: ―по требованию любой из сторон в этом споре‖, ―po
trebovaniyu liuboy iz storon v etom spore‖, which is translated into English as ―at the request
by any of the parties to this dispute‖. Emphasis added. 54
the oral proceedings of September 2008. Otherwise it would be open to a State
to lodge its application, and then request provisional measures, as to which the
Court would then find prima facie jurisdiction on the basis of oral argument and,
by the same token, a dispute would have been created.
3.31 Further, as the Court held in Genocide (Croatia v. Serbia):
―it must be emphasized that a State which decides to bring proceedings
before the Court should carefully ascertain that all the requisite conditions
for the jurisdiction of the Court have been met at the time proceedings are
instituted. If this is not done and regardless of whether these conditions
later come to be fulfilled, the Court must in principle decide the question
of jurisdiction on the basis of the conditions that existed at the time of the
122
institution of the proceedings.‖
3.32 There was no such careful ascertainment in this case. Georgia has paid no
attention whatsoever to the requirements of Article 22 of CERD.
3.33 Russia is of course aware that in certain situations the Court has desisted
from applying the general rule for reasons of sound administration of justice.
While the Court must be wary of converting the general rule into the
exception, 123 the Court has shown on occasion a reluctance to uphold a
jurisdictional objection if the defect could be addressed simply by the applicant
commencing fresh proceedings. 124 There are three reasons why that is not a
concern in this case:
a. This is as strong a case as could be conceived for the application of the
general rule. In a case where the alleged dispute is said to date back 17
122Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment (Preliminary Objections), 18 November 2008, at para. 80.
123
See also in this respect ibid., Separate Opinion of Judge Abraham, para. 54.
124
Ibid., at para 85. 55
years prior to the Application, the sound administration of justice is
undermined by permitting a State to seise the Court with no prior
notification to the respondent State and, therefore, no opportunity for that
State to consider its position, including to consider whether it would be
125
appropriate to modify its behaviour in any way. In Genocide (Croatia v.
Serbia), one of the critical factors for the Court was that: ―while, as noted
above (paragraph 80), a State filing an application with the Court should
normally be expected to demonstrate sufficient care to avoid doing so
prematurely, it cannot be said that the Applicant in the current
126
proceedings has shown any careless approach in this regard.‖ As
already noted, the Applicant in this case could not have shown less care so
far as concerns meeting the requirements of Article 22 of CERD. Further,
the Applicant in this case – which in fact first elected to take resolution of
the conflict into its own hands by means of its (unlawful) military
operations commencing on 7 August 2008 – could not have shown less
care so far as concerns the fundamental principles on the peaceful
127
settlement of disputes.
b. This is an artificial case. An attempt has been made to transform a case
turning on the use of force, and international humanitarian law, into a
racial discrimination case that Russia could in no sense have been alerted
to. Again, it must be permitted to a respondent State the opportunity to
125See also Mavrommatis Palestine Concessions, Greece v. United Kingdom, Judgment
(Merits), 30 August 1924, 1924 PCIJ (ser. A), No. 2, p. 11, Dissenting Opinion of Judge
Pessoa, at p. 88: ―As being sovereign they [States] have the fundamental right to settle their
disputes between themselves, and the interposition of an outside authority is only
understandable when the former solution cannot be arrived at.‖
126Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment (Preliminary Objections), 18 November 2008, at para 90.
127
See also under Chapter IV below, with respect to the failure to fulfil the other pre-
conditions to jurisdiction in Article 22 of CERD. 56
consider its position. This is not a case equivalent to Military and
Paramilitary Activities (Nicaragua v. USA), where the Court noted: ―The
United States was well aware that Nicaragua alleged that its conduct was
a breach of international obligations before the present case was
instituted; and it is now aware that specific articles of the 1956 Treaty are
alleged to have been violated. It would make no sense to require
Nicaragua now to institute fresh proceedings based on the Treaty, which it
would be fully entitled to do.‖ 128Russia had no means of knowing that
Georgia considered it to be in breach of international obligations
concerning racial discrimination with respect to Abkhazia and South
129
Ossetia before the case was instituted.
c. The wording of Article 22 of CERD supports application of the general
rule. Not only does Article 22 require that there be a dispute prior to seisin
of the Court; it requires that this dispute be crystallized to the extent
provided for in Article 11 of CERD. This is not a requirement that
Georgia has met, and nor has it given any indication that it will meet this
requirement prior to the moment that the Court decides on its jurisdiction.
3.34 It follows from the above that the general rule should be applied, and that
this is mandated by the sound administration of justice.
3.35 However, in any event, Georgia will not have satisfied the requirement
that there be a dispute, whether at the date of seisin or at the date that the Court
decides on its jurisdiction: even if it were accepted that the general rule should
128Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and
Admissibility, I.C.J. Reports 1984, pp. 428-429, para. 83.
129
See also paras. 4.29-4.35 below, including with respect to other factors distinguishing the
Nicaragua case (such as the fact that the Court anyway had jurisdiction under Article 36(2) of
its Statute). 57
be dis-applied, Georgia would have to satisfy the particular requirements for
there to be a dispute under CERD. 130 Georgia has not done so, and it has given
no indication that it intends do so.
B. THE REQUIREMENT THAT THE DISPUTE CONCERN THE
INTERPRETATION OR APPLICATION OF CERD
3.36 So far as concerns the question of whether the subject-matter of a given
dispute falls within the treaty relied on, the Court held as follows in the Oil
Platforms case:
―… the Parties differ on the question whether the dispute between the two
States with respect to the lawfulness of the actions carried out by the
United States against the Iranian oil platforms is a dispute ‗as to the
interpretation or application‘ of the Treaty of 1955. In order to answer that
question, the Court cannot limit itself to noting that one of the Parties
maintains that such a dispute exists, and the other denies it. It must
ascertain whether the violations of the Treaty of 1955 pleaded by Iran do
or do not fall within the provisions of the Treaty and whether, as a
consequence, the dispute is one which the Court has jurisdictio131atione
materiae to entertain, pursuant to Article XXI, paragraph 2.‖
3.37 It is important, however, to note that this test was formulated in a quite
different context to that now before the Court. As the Court stated in the
immediately preceding passage in the Oil Platforms case:
―It is not contested that several of the conditions laid down by this text
[Article XXI] have been met in the present case: a dispute has arisen
between Iran and the United States; it has not been possible to adjust that
dispute by diplomacy and the two States have not agreed ‗to settlement by
130
See Articles 11-12, 22 of CERD.
131
Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary
Objection, Judgment, I.C.J. Reports 1996 (II), p. 810, para. 16. 58
some other pacific means‘ as contemplate132y Article XXI [the
compromissory clause in question].‖
3.38 Here, Georgia has approached the Court without notifying Russia (via the
CERD procedures or otherwise) of the existence of any dispute, and without
fulfilling the other pre-conditions established by Article 22 of CERD (as to
which, see Chapter IV below). In these circumstances, further rigour is
inevitably required: the reasoning in Oil Platforms is predicated on the existence
of a recognised and established dispute (in that case, as to the lawfulness of the
actions carried out by the United States against the Iranian oil platforms). That is
precisely what is lacking in the instant case.
3.39 In these circumstances, it is appropriate to seek to identify the real dispute
133
between the Parties, as Russia has sought to do in Chapter II above.
3.40 In this case, the Court‘s focus should primarily be on the relevant
diplomatic exchanges, public statements and other pertinent evidence, as
opposed to the artificial and misleading formulation of the dispute in the
Application and, now, in Georgia‘s Memorial. Further, to adopt the words of the
tribunal in the Southern Bluefin Tuna case, the question is ―whether the ‗real
132
Ibid. Article XXI of the 1955 Treaty of Amity provides as follows: ―Any dispute between
the High Contracting Parties as to the interpretation or application of the present Treaty, not
satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice,
unless the High Contracting Parties agree to settlement by some other pacific means.‖
133Referring to Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment,
I.C.J. Reports 1998, p. 448, para. 31, and Nuclear Tests (New Zealand v. France), Judgment,
I.C.J. Reports 1974, p. 466, para. 30; see also Request for an Examination of the Situation in
Accordance with Paragraph 63 of the Court‟s Judgment of 20 December 1974 in the Nuclear
Tests (New Zealand v. France) Case (New Zealand v. France), Order of 22 September 1995,
I.C.J. Reports 1995, p. 304, para. 55. 59
dispute‘ between the Parties does or does not reasonably (and not just remotely)
relate to the obligations set forth in the treaties whose breach is alleged‖.134
3.41 The real dispute in this case concerns the conflict, between Georgia on the
one hand and Abkhazia and South Ossetia on the other, in relation to the legal
status of Abkhazia and South Ossetia, a conflict that has on occasion erupted
into armed conflict. It is manifest that there was a period of armed
conflict between Georgia and Russia, following on from Georgia‘s unlawful use
of force on 7 August 2008. This is not a case about racial discrimination, as is
clear from Chapter II above, and further from the matters considered in Section
III below. Russia reiterates its view that, if Georgia had been successful in its
military intervention in South Ossetia in August 2008, the current claim would
never have been brought. This, of itself, is a firm indication as to the nature of
the real dispute. Indeed, even Georgia states that
―the case was initiated in the context of Russia‘s unlawful use of force in
August 2008, and Russia‘s widespread violation of international
135
humanitarian and human rights law‖.
3.42 It is also instructive to refer to the ―negotiations‖ with respect to the
alleged dispute, which Georgia relies on to satisfy the further requirements of
Article 22 of CERD. These are considered in Chapter IV below, but by way of
example:
a. Georgia asserts that it ―has attempted to raise the subject matter of this
dispute with the Russian Federation and to make progress in resolving the
134
Southern Bluefin Tuna case (Australia and New Zealand v. Japan), 39 ILM 1359
(November 2000), at 1386, para. 48.
135See GM, para. 1.8. 60
136
conflict within the forum of the OSCE Permanent Council‖. Certainly,
Georgia has raised matters concerning Abkhazia and South Ossetia before
the OSCE, but these concern grievances about: Russia‘s performance as a
mediator, the alleged inefficiency of Russian peacekeepers, the slow pace
of withdrawal of military bases, the delivery of military equipment to
Abkhazia and South Ossetia, Russia‘s economic ties with Abkhazia and
South Ossetia, the behaviour of Abkhaz and South Ossetian authorities,
Russia‘s stance in bilateral relations with Georgia, Russia‘s economic
blockade of Georgia, allegedly false Russian statements over Georgia's
military preparations, and various other matters of this sort.
b. Moreover, and by contrast, Georgia has used the OSCE forum to raise
alleged ethnic discrimination of Georgians within Russian territory (as
opposed to allegations of ethnic discrimination concerning ethnic
Georgians in Abkhazia and South Ossetia).
c. Georgia also contends in its Memorial that: ―The Russian Federation
also made use of the OSCE forum and made over thirty statements
concerning the subject matter of the dispute‖. This assertion is
137
accompanied by a footnote that enumerates 31 statements, of which not
one discusses the issue of ethnic discrimination (except one statement that
raises issues with respect to minority rights in Georgia itself, not
Abkhazia or South Ossetia).
3.43 The carefully tailored allegations of discrimination cannot be divorced
from the underlying context of a claim precipitated by Georgia‘s unlawful use of
136
See GM, para. 8.71.
137See GM, para. 8.74. 61
force in August 2008, and are not to be considered as the relevant ―dispute‖ to
which the test in the Oil Platforms case is to be applied.
3.44 Even if that were wrong, the violations pleaded by Georgia do not fall
within the provisions of CERD, and in this respect Russia respectfully agrees
with the position of Judges Al-Khasawneh, Ranjeva, Shi, Koroma, Tomka,
Bennouna and Skotnikov, who considered that, even prima facie, there was no
dispute for the purposes of Article 22 of CERD (at paragraphs 8-10 of their
Dissenting Opinion).
3.45 In this respect, it is noted that the Judges in their Dissenting Opinion
correctly focused on the events subsequent to 7-8 August 2008, but prior to the
seisin of the Court, stating (at paragraph 8):
―… the Court must consider whether the two Parties have opposing views
with regard to the interpretation or application of the Convention.
Admittedly, it is established that no such opposition was ever manifested
before 8 August; but was it manifested after 7-8 August and the outbreak
of hostilities between the two States?‖
3.46 The jurisdiction of the Court, and any application of the approach
followed in the Oil Platforms case, must also take into account the limits ratione
loci and ratione temporis on the Court‘s jurisdiction. These are considered
further in Chapters V and VI below. The former excludes the jurisdiction of the
Court altogether. So far as concerns the limits ratione temporis on the Court‘s
jurisdiction:
a. In assessing whether the violations of CERD pleaded by Georgia do or
do not fall within the provisions of CERD, the Court must exclude facts
and events prior to Georgia‘s ratification of CERD in June 1999: self-
evidently, Georgia had no rights under CERD to base a claim prior to that
date. 62
b. It follows that the Court is primarily concerned with the period between
2 July 1999 and 12 August 2008. As follows from paragraphs 52-64 of
Georgia‘s Application, entitled the ―Second Phase of Russia‘s
Intervention in Abkhazia and South Ossetia: 1994 to 2008‖, 138 there is
nothing in that second phase that could conceivably be said to amount to a
breach of CERD. The development of facts in Georgia‘s Memorial does
not alter that conclusion
c. The Court has held that it only has jurisdiction over facts or events
subsequent to the filing of an Application if those facts or events are
connected to the facts or events already falling within the Court‘s
jurisdiction, and consideration of those later facts or events would not
139
transform the nature of the dispute. The first limb of this test is
particularly relevant in the present proceedings. Before it can rely on facts
or events subsequent to the filing of the Application on 12 August 2008,
Georgia must first establish the Court‘s jurisdiction under CERD with
reference to facts or events already falling within the Court‟s jurisdiction
i.e. facts or events in the period from 2 July 1999 to 12 August 2008. It is
138The Court will recall that, in its Application of 12 August 2008, Georgia divided its
consideration of the facts into three phases ―of Russia‘s intervention in South Ossetia and
Abkhazia‖, on the basis that there were three phases to the alleged dispute. The first phase
covered the period 1991-1994; the second phase, 1994 up to but not including 8 August 2008;
and the third phase, commencing on 8 August 2008. See Georgia‘s Application of 12 August
2008, paras. 5-16.
139Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), I.C.J.
Reports 2008, at para. 87: ―When the Court has examined its jurisdiction over facts or events
subsequent to the filing of the application, it has emphasized the need to determine whether
those facts or events were connected to the facts or events already falling within the Court‘s
jurisdiction and whether consideration of those later facts or events would transform the
‗nature of the dispute‘.‖ See also Fisheries Jurisdiction (Federal Republic of Germany v.
Iceland), I.C.J. Reports 1974, at para. 72; LaGrand (Germany v. United States of America),
I.C.J. Reports 2001, pp. 483-484, at para. 45; Certain Phosphate Lands in Nauru (Nauru v.
Australia), I.C.J. Reports 1992, at paras. 69-70; and Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium), I.C.J. Reports 2002, at para. 36. 63
only then that facts or events subsequent to the filing of the Application
may fall within the jurisdiction of the Court.
3.47 Once again, this brings into sharp focus the question of the correct
characterisation of the dispute.
3.48 The armed conflict precipitated by Georgia‘s use of force spans the period
8 to 12 August 2008. 140 This appears to be Georgia‘s position also, although it
asserts that the hostilities in most of South Ossetia had ended by 10 August. 141
This armed conflict cannot now correctly be characterised as a dispute under
CERD.
3.49 The onus is of course on Georgia to establish that it is appropriate to apply
the Oil Platforms test and that, if so, to establish that within this limited period
of armed conflict, the violations of CERD pleaded by Georgia do indeed fall
within the provisions of CERD. It has not met this threshold. As Judges Al-
Khasawneh, Ranjeva, Shi, Koroma, Tomka, Bennouna and Skotnikov held (at
paragraph 9 of their Dissenting Opinion):
―Russia‘s armed activities after 8 August cannot, in and of themselves,
constitute acts of racial discrimination in the sense of Article 1 of CERD
unless it is proven that they were aimed at establishing a ―distinction,
exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin‖. However, the circumstances of the armed
confrontation triggered in the night of 7 to 8 August were such that this
cannot be the case. Admittedly, the ensuing armed conflict concerned a
region in which serious ethnic tensions could lead to violations of
humanitarian law, but it is difficult to consider that the armed acts in
question, in and of themselves and whether committed by Russia or
Georgia, fall within the provisions of CERD.‖
140
See e.gIndependent International Fact-Finding Mission on the Conflict in Georgia, Report,
vol. I (September 2009), pp. 10-11, para. 2. Annex 75.
141GM, para. 3.13. 64
Section III. The background to the so-called “dispute”:
the absence of allegations by Georgia of breach by Russia of CERD
3.50 At no stage prior to 12 August 2008 was Russia engaged in a dispute with
Georgia over the interpretation or application of CERD, and nor was this ever
contended by Georgia.
A. NO COMMUNICATION OF A MATTER BEFORE THE COMMITTEE
ON THE ELIMINATION OF RACIAL DISCRIMINATION
3.51 If Georgia had considered that Russia was not giving effect to the
142
provisions of CERD, the most obvious, and required, forum for Georgia to
raise the matter was the Committee on the Elimination of Racial Discrimination.
Yet, no such matter was ever raised by Georgia (or any other party) whether
under Article 11 of CERD or otherwise, although it is now more than 10 years
since Georgia ratified CERD.
143
3.52 Since 1999, in accordance with its obligations under Article 9, Georgia
144
has submitted three periodic reports to the Committee. In none of these did
142
If Georgia wished to have the possibility of seising the Court: see Chapter IV below.
143Pursuant to Article 9(1) of CERD: ―States Parties undertake to submit to the Secretary-
General of the United Nations, for consideration by the Committee, a report on the legislative,
judicial, administrative or other measures which they have adopted and which give effect to
the provisions of this Convention: (a) within one year after the entry into force of the
Convention for the State concerned; and (b) thereafter every two years and whenever the
Committee so requests. The Committee may request further information from the States
Parties.‖
144Committee on the Elimination of Racial Discrimination, Reports submitted by States
Parties under Article 9 of the Convention, Initial report of States Parties due in 2000,
Addendum: Georgia, 24 May 2000, U.N Doc. CERD/C/369/Add.1 (1 February 2001) (Annex
48). See also CERD/C/461/Add.1 of 21 July 2004. 65
Georgia state that Russia was not giving effect to the provisions of CERD so far
as concerns the current matters it brings before the Court. There is likewise no
reference to any dispute with Russia in the discussions between Committee
145
members and Georgia‘s representatives. A fortiori, no reference to any such
dispute is to be found in the Committee‘s concluding observations.
3.53 Tellingly, in its initial report to the Committee, Georgia did refer to a
policy of ―cleansing‖ founded on racial hatred in Abkhazia – but that policy was
said to be pursued by ―the authorities of the self-proclaimed ‗Republic of
146
Abkhazia‘‖. There is no suggestion that Russia was in any way responsible
for the policy. Indeed, as is evident from Chapter II above, Georgia expressly
did not regard Russia as a party to its dispute, but saw Russia as a facilitator, and
welcomed the presence of CIS troops in Abkhazia (which is only understandable
as Russia joined Georgia in condemning ethnic cleansing by the Abkhaz).
145
Summary records, see: CERD/C/SR.1453 of 15 March 2001, CERD/C/SR.1454 of 16
March 2001, [deleted records were sealed by CERD and are not publicly available] and
CERD/C/SR.1706 of 4 August 2005.
146Committee on the Elimination of Racial Discrimination, Reports submitted by States
Parties under Article 9 of the Convention, Initial report of States Parties due in 2000,
Addendum: Georgia, 24 May 2000, U.N Doc. CERD/C/369/Add.1 (1 February 2001), para.
55: ―Georgia unreservedly condemns any policy, ideology or practice conducive to racial
hatred or any form of ―ethnic cleansing‖ such as that practised in the Abkhaz region of
Georgia following the armed conflict of 1992-1993. Hundreds of thousands of displaced
persons, a large majority of whom are women, elderly persons and children, lost their homes
and means of survival and became exiles in their own country. Such has been the outcome of
the policy pursued by the authorities of the self-proclaimed ―Republic of Abkhazia‖, the aim
of which has seen to ―cleanse‖ the region of Georgians and - in many cases - representatives
of other nationalities as well‖. Annex 48.
In the Committee‘s consideration of the report, the representative for Georgia (Mr Kavadze)
stated, to similar effect that: ―The Government was currently engaged in high-level
negotiations to reach an agreement with the separatist organization responsible for the
disturbances, and the issue of respect for human rights loomed large in the talks.‖ Committee
on the Elimination of Racial Discrimination, 58th session, Summary Record of 1454th
Meeting, 16 March 2001, U.N. Doc. CERD/C/SR.1454 (14 June 2001), at para. 21. Annex 51. 66
3.54 Georgia is not now asserting that it has only just come into possession of
relevant facts. Its case is that there was massive ethnic cleansing, and that the
authorities in Abkhazia and South Ossetia were at all material times completely
147
dependent on Russia. Possessed of all the (alleged) relevant information, it
was for Georgia to formulate complaints against Russia before the Committee
(or some other body) and/or otherwise to communicate the existence of a
dispute. It did not do so.
3.55 In addition, there has been no reference to a dispute between Georgia
and Russia concerning application of CERD with respect to Abkhazia and South
148
Ossetia during the Committee‘s examination of Russia‘s reports. No mention
was made of any such dispute between Georgia and Russia during the
Committee‘s 2008 session, which concluded in Geneva on 15 August 2008, one
week after the armed conflict broke out (the Committee was then formulating its
concluding observations on the Russian Federation‘s eighteenth and nineteenth
periodic reports). There is no mention of any such dispute in the Committee‘s
149
2008 Annual Report.
3.56 Further, it is recalled that, pursuant to Article 14(1) of CERD: ―A State
Party may at any time declare that it recognizes the competence of the
Committee to receive and consider communications from individuals or groups
147See e.g. GM, para. 9.52.
148Cf. e.g. the concerns expressed by the Committee in its 2003 Annual Report with respect
to Uganda: ―The Committee expresses concern about allegations of abuses committed by
Ugandan forces against members of particular ethnic groups in the Democratic Republic of
the Congo. The Committee urges the State party to comply fully with Security Council
resolutions 1304 (2000) and 1332 (2000).‖ Report of the Committee on the Elimination of
Racial Discrimination, 23 October 2003, A/58/18, at para. 277.
149
U.N. General Assembly, 63rd session, Official Records, Supplement No. 18, Report of the
Committee on the Elimination of Racial Discrimination, U.N. Doc. A/63/18 (1 November
2008), at paras. 351–387. Annex 72. 67
of individuals within its jurisdiction claiming to be victims of a violation by that
State Party of any of the rights set forth in this Convention.‖ Such a declaration
was made by the Soviet Union on 1 October 1991. 150If Georgian nationals (with
or without the assistance of Georgia) had considered that CERD was applicable
to the events in Abkhazia and South Ossetia, no doubt this procedure would
have been employed. Yet, tellingly, no individual complaint against Russia has
ever been submitted to the Committee in respect of alleged violations
concerning acts of Russia in Abkhazia or South Ossetia (or acts of the
authorities allegedly controlled by Russia).
B. NO COMMUNICATION BY GEORGIA OF A DISPUTE BEFORE
OTHER HUMAN RIGHTS BODIES
3.57 The same basic points may be made in respect of other human rights
bodies before which Georgia might conceivably have articulated the existence of
a dispute as to racial discrimination by Russia in respect of Abkhazia and South
Ossetia.
1. No communication of a dispute before the Human Rights Committee
3.58 Georgia has not, in its reports to the Human Rights Committee,
communicated the existence of any dispute with respect to racial discrimination
by Russia concerning Abkhazia or South Ossetia (i.e. contrary to Articles 2(1)
and/or 26 of the ICCPR). In its report to the Committee of 7 November 2006,
Georgia did refer to a parliamentary resolution of 15 February 2006
150
The declaration reads as follows: ―The Union of Soviet Socialist Republics declares that it
recognizes the competence of the Committee on the Elimination of Racial Discrimination to
receive and consider communications, in respect of situations and events occurring after the
adoption of the present declaration, from individuals or groups of individuals within the
jurisdiction of the USSR claiming to be victims of a violation by the USSR of any of the
rights set forth in the Convention‖. 68
characterising the ―actions of the Russian Federation as permanent efforts aimed
151
at annexation of this region of Georgia‖. While Russia considers such
allegations to be unsustainable, this does at least point to the eventual real
152
dispute between the Parties (see Chapter II above).
2. No communication of a dispute before ECOSOC
3.59 Likewise, Georgia has not, in its reports to the Economic and Social
Council (ECOSOC) communicated the existence of a dispute with respect to
racial discrimination by Russia concerning Abkhazia or South Ossetia. Before
ECOSOC, Georgia has reported on ethnic cleansing in Abkhazia in terms
similar to those in its Application (see paragraph 3.3 above), but with no
mention of any responsibility on the part of Russia. 153 In the same report of
1998, Georgia described the situation expressly by reference to the language of
armed conflict, as follows:
―As the Union of Soviet Socialist Republics fell apart, separatist trends
developed in two autonomous entities, Abkhazia and South Ossetia. The
course of events led to armed conflicts – in both cases, political opposition
154
that took the form of ethnic resistance.‖
151Human Rights Committee, Consideration of reports submitted by States Parties under
Article 40 of the Covenant, Third periodic reports of States Parties due in 2006: Georgia,
U.N. Doc. CCPR/C/GEO/3 (7 November 2006), para. 41.
152By contrast, Georgia had earlier reported to the Human Rights Committee, with respect to
the conflict in Abkhazia, that: ―The Russian Federation, too, has an important positive role to
play in the settlement of the conflict.‖ Second Periodic Report of Georgia,
CCPR/C/GEO/2000/2, 26 February 2001, para. 30.
153
Initial Report of Georgia, E/1990/5/Add. 37, 23 September 1998, para. 29, referring to
―ethnic cleansing in both regions [Abkhazia and South Ossetia], reaching the scale of
genocide in Abkhazia. The outcome has been thousands of dead and hundreds of thousands of
people internally displaced.‖
154
Ibid, para. 28. 69
3.60 Further, before ECOSOC, Georgia has characterised the conflicts in
Abkhazia and South Ossetia as domestic conflicts (which is consistent with
155
Russia‘s position on the nature of the real dispute: see Chapter II above).
3. No communication of a dispute before the CEDAW Committee
or the Committee on the Rights of the Child
3.61 Georgia has not, in its reports to the Committee on the Elimination of
Discrimination against Women, communicated the existence of a dispute with
respect to racial discrimination by Russia concerning Abkhazia or South
Ossetia.
3.62 The same applies to Georgia‘s reports to the Committee on the Rights of
the Child. By contrast, in its second periodic report of 28 April 2003, Georgia
did note with respect to Abkhazia that:
―In addition to United Nations structures, the Group of Friends of the
Secretary-General on Georgia as well as Ukraine and other countries of
the southern Caucasian region are participating in the consultation
process. The Russian Federation, too, h156an important positive role to
play in the settlement of the conflict.‖
155
Consideration of Reports: E/C.12/2000/SR.3, of 8 November 2000.
156
Second Periodic Report of Georgia: CRC/C/104/Add.1, of 28 April 2003, emphasis added. 70
C. NO COMMUNICATION OF A DISPUTE
IN BILATERAL CONTACTS BETWEEN THE PARTIES,
OR BEFORE OTHER INTERNATIONAL FORA
SUCH AS THE SECURITY COUNCIL
3.63 These omissions would obviously be less significant if Georgia had
communicated the existence of a dispute under CERD in diplomatic or other
communications with Russia, or before other international fora. The point is that
Georgia did not do so.
3.64 At the hearing of 8 September 2008, Georgia made reference to
―extensive bilateral contacts‖, at which inter alia the issue of the return of
internally displaced persons to Abkhazia was discussed. The contacts relied on
have now been set out in a notably short passage in Chapter 8 of Georgia‘s
Memorial. They are considered further in Chapter IV below. They support
neither the existence of negotiations nor the existence of a dispute under Article
22 of CERD. As follows, for example, from the reasoning of Judge Higgins in
Land and Maritime Boundary between Cameroon and Nigeria, the existence of
negotiations and the existence of a dispute are separate issues, and the relevance
of the issue of negotiations may lie in providing an indication as to whether a
dispute exists at all:
―I refer to the question of whether there is, in fact and in law, a dispute
relating to the maritime zones of Cameroon and Nigeria out to the limit of
their respective jurisdictions. Nigeria, in its written and oral pleadings on
its seventh preliminary objection, has focused on the alleged absence of
relevant negotiations. It contends that as a matter of general international
law and by virtue of Articles 74 and 83 of the United Nations Convention
on the Law of the Sea, a State must negotiate its maritime boundary and
not impose it unilaterally and that the Court thus lacks jurisdiction and/or
the claim on maritime delimitation is inadmissible. But it may be that the
real relevance of the issue of negotiation lies rather in providing an 71
indication as to whether a dispute exists at all over this matter. This,
rather than whether negotiation is a „free standing‟ pre-condition for
157
bringing a claim on a maritime boundary, seems to me the real issue.‖
3.65 The negotiations – or otherwise – in this case do evidence the absence of a
relevant dispute between Georgia and Russia.
3.66 The same applies so far as concerns the alleged contacts before other
international fora, as also considered further in Chapter IV below (in relation to
the alleged negotiations relied upon in Chapter VIII of Georgia‘s Memorial). It
is not, for example, because Parties have discussed the return of refugees, in
conjunction with the re-opening of railway traffic between Sochi and Tbilisi,
that a Party may be taken as having communicated the existence of a dispute
under Article 22 of CERD. 158 At the hearing of 8 September 2008, Georgia even
relied on Security Council resolution 1494 of 30 July 2003 – which further
highlights the difficulty that Georgia has had in pointing to relevant bilateral or
other contacts. 159 This Security Council resolution contains a very similar
157Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections,
Judgment, I. C. J. Reports 1998, p. 275, Separate Opinion of Judge Higgins, at p. 346,
emphasis added. She continued at p. 348: ―But whether there exists a dispute or not is a
different question and is "a matter for objective determination" (Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports
1950, p. 74). Quite different elements from those the Parties have debated apply. There has to
be a "claim of one party [that] is positively opposed by the other" (South West Africa cases,
Preliminary Objections, Judgment, I.C. J. Reports 1962, p. 328). It is not sufficient for this
purpose to say that as the Bakassi Peninsula is disputed, it necessarily follows that the
maritime boundary is in dispute. And, in contrast to the position with regard to the land
boundary, there is (beyond point G) no existing treaty line which constitutes the claim of one
Party and which the other Party - even by implication - appears not to accept. No specific
claim line beyond point G had, before the institution of these proceedings, been advanced by
Cameroon and rejected by Nigeria.‖
158
Cf. GM, para. 8.45, relying on the meeting between President Putin and President
Shevardnadze of 12 March 2003; GM Vol. III, Annex 136.
159CR 2008/22, p. 35. U.N. Security Council, Resolution 1494 (2003), U.N. Doc.
S/RES/1494 (30 July 2003) is at Annex 53. It appears that Georgia no longer relies on this
resolution. 72
reference to the return of refugees, in conjunction with the re-opening of railway
traffic between Sochi and Tbilisi. This does not come close to communication of
the existence of a dispute under Article 22 of CERD. Indeed, Security Council
resolution 1494, far from indicating the existence of a dispute to which Russia
was a party, underscores the role in which Russia was engaged in Abkhazia.
Thus, pursuant to this resolution, the Security Council:
―Welcom[ed] also the important contributions made by UNOMIG and the
Collective Peacekeeping Forces of the Commonwealth of Independent
States (CIS peacekeeping force) in stabilizing the situation in the zone of
conflict, and stress[es] its attachment to the close cooperation existing
between them in the performance of their respective mandates;
…
3. Commend[ed] and strongly support[ed] the sustained efforts of the
Secretary-General and his Special Representative, with the assistance of
the Russian Federation in its capacity as facilitator as well as of the Group
of Friends of the Secretary-General and of the OSCE, to promote the
stabilization of the situation and the achievement of a comprehensive
political settlement ….‖ (Emphasis added.)
3.67 By way of a further recent example, in resolution 1808 of 15 April 2008,
the Security Council was again stressing ―the importance of close and effective
cooperation between UNOMIG and the CIS peacekeeping force as they
currently play an important stabilizing role in the conflict zone‖.60At the same
time, paragraph 14 of this resolution called upon Georgia and the Abkhaz
authorities ―to fulfil their obligations in this regard and to extend full
cooperation to UNOMIG and the CIS peacekeeping force‖. 161
160U.N. Security Council, Resolution 1808 (2008), U.N. Doc. S/RES/1808 (15 April 2008).
Annex 67.
161See also e.g. Resolution 937 (1994); Resolution 971 (1995) (commending the contribution
of the CIS peace-keeping force); Resolution 1225 (1999); Resolution 1462 (2003)
(welcoming the important contributions made by UNOMIG and the Collective Peacekeeping
Forces of the Commonwealth of Independent States (CIS peacekeeping force) in stabilizing
the situation in the zone of conflict); Resolution 1615 (2005) (to the same effect); Resolution
1781 (2007). 73
3.68 It is self-evident that the Security Council did not then consider that
Georgia and Russia were engaged in a dispute under CERD. To the contrary,
such Security Council resolutions are consistent with Russia‘s position as to the
real dispute, as set out in Chapter II above. It is also recalled that, through a
series of Security Council resolutions and statements made in the Council,
Russia repeatedly condemned various unlawful acts of the Abkhaz authorities,
and reiterated and reaffirmed as fundamentally important the right of return for
all refugees and displaced persons to Abkhazia (by way of recent examples, in
Security Council resolutions 1781 and 1808). The resolutions of the Security
Council provide no indication that Russia was in a dispute with Georgia over
Abkhazia, still less a dispute under CERD.
3.69 The position of the Security Council – viewing Russia as a facilitator in
achieving a solution to conflict in Abkhazia, and not as one of the parties to a
dispute (whether under the Convention or otherwise) – is entirely consistent
with other contemporaneous documentation. As noted in Chapter II above, there
are repeated statements of Georgian representatives, decisions and international
agreements to which Georgia is a party, in which Russia‘s role and the role of
the CIS peacekeeping forces in Abkhazia and South Ossetia are consented to by
Georgia and recognised by Georgia as wholly beneficial. To take some
examples:
a. In December 1994, Georgia as part of the JCC for the Settlement of the
Georgian-Ossetian Conflict was stating that: ―The Russian battalion of the
peacekeeping forces is the guarantor of relative stability in the conflict
162
zone.‖
162Joint Control Commission for the Settlement of the Georgian-Ossetian Conflict, Decision
on the Joint Forces for the Maintenance of Peace (6 December 1994). Annex 43. 74
b. In the Final Statement on the results of the resumed meeting between
the Georgian and Abkhaz sides held in Geneva from 17 to 19 November
1997, both sides welcomed the participation of Russia as facilitator, and
also took note of the contribution made by the CIS peacekeeping force in
stabilising the situation in the conflict zone. 163
c. On 31 March 1999, Georgia was party to a Decision of the Joint
Control Commission, signed by itself, Russia, and the North Ossetian and
South Ossetian sides, recording that the ―peacekeeping forces keep on
164
being a major sponsor of the peace and [a] calm life‖.
d. On 16 March 2001, Georgia and Abkhazia (alongside representatives of
the United Nations and the CIS) signed the Yalta Declaration, pursuant to
which Georgia (and the other signatories) ―recognize[d] the stabilizing
role of the CIS Collective Peacekeeping Forces and UNOMIG in the
165
conflict zone‖.
e. In its report of 28 April 2003 to the Committee on the Rights of the
Child, Georgia stated with respect to Abkhazia: ―The Russian Federation,
too, has an important positive role to play in the settlement of the
conflict.‖166
163
Final Statement on the results of the resumed meeting between the Georgian and Abkhaz
sides held in Geneva from 17 to 19 November 1997. Annex 45.
164Joint Control Commission for the Settlement of the Georgian-Ossetian Conflict, Decision
on the activities of the Joint Peacekeeping Forces; on cooperation between law enforcement
agencies of the Parties in the area of the Georgian-Ossetian conflict, Annex 1 to Protocol
No.9 of the meeting of the Joint Control Commission (31 March 1999). Annex 47.
165GM, Annex 132.
166
Second Periodic Report of Georgia CRC/C/104/Add. 1, of 28 April 2003, emphasis added. 75
3.70 If Georgia‘s allegations as to the existence of a dispute prior to August
2008 were to be accepted, this would be against a backdrop in which Georgia
not only failed to communicate the existence of a dispute under CERD, but also
consented to and welcomed the presence or involvement in Abkhazia and South
Ossetia of a party (Russia) that is now characterised as responsible for racial
discrimination against ethnic Georgians. The correct position is that Russia
condemned the Abkhaz authorities through governmental statements and CIS
decisions, as well as in the Security Council; that it made joint initiatives with
Georgia on the resolution of the conflict; and that in the early stage of the South
Ossetian conflict it also acted together with Georgia.
3.71 Similarly, as identified further in Chapter IV below with respect to the
alleged negotiations relied upon in Chapter VIII of Georgia‘s Memorial,
Georgia failed to communicate to Russia the existence of a dispute with respect
to racial discrimination through the channel provided by the OSCE, or in the
other fora now relied upon by Georgia.
3.72 Even in its provisional measures application of 11 August 2008 to the
European Court of Human Rights, Georgia did not refer to Article 14 of the
167
European Convention on Human Rights. If there had been a real dispute
between the Parties concerning racial discrimination, Georgia‘s application of
11 August 2008 before the European Court of Human Rights would no doubt
have alleged such a breach. This underlines once again the fact that Georgia‘s
real dispute with Russia is not founded on issues of racial discrimination. 168
167Article 14 ECHR provides: ―The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.‖
168This absence is now justified as follows at para. 3 of Georgia‘s Application of 6 February
2009 to the European Court of Human Rights: ―The Applicant State wishes it to be noted at 76
3.73 On occasion, Georgia has made ill-focused allegations in respect of ethnic
cleansing. By a letter of 21 March 1995 from the Permanent Representative of
Georgia to the President of the Security Council, Georgia asserted:
―The negotiations about the peaceful settlement of the conflict in
Abkhazia serve as a cover for separatists. The neutrality of the
commanders of Russian peace-keeping forces is inconsistent with their
mandate, which has been approved by the heads of the States members of
the Commonwealth of Independent States and which stipulates that the
main task of the peace-keeping forces is to create the necessary
preconditions for the secure return of refugees and displaced persons. I
wish to warn the Abkhaz separatists: the patience of people is not
inexhaustible. The conciliatory position of the United Nations, CIS
Member States and the Russian peace-keeping forces towards mass
crimes and vandalism, genocide and ethnic cleansin169ommitted by the
regime of the Abkhaz separatists has its limits.‖
3.74 The complaint here is that Russian peace-keeping forces are neutral, and
that they, along with the United Nations and CIS Member States, have adopted a
conciliatory position towards mass crimes and vandalism, genocide and ethnic
cleansing. But such correspondence cannot conceivably be taken as initiating a
dispute under CERD. Indeed, if it were, this would apparently be a dispute to
which the United Nations and unspecified CIS Member States would also be
the outset that specific complaints regarding the targeting of these attacks against civilians of
ethnic Georgian origin could also have been properly advanced on the facts of this case
pursuant to articles 8 and 14 of the Convention, articles 1 and 2 of Protocol 1 to the
Convention and Article 2 of Protocol 4 to the Convention. The Applicant State has not invited
the Court to consider such complaints at this juncture as the approach which has been adopted
is not to include matters in this application which are property ventilated in the concurrent
proceedings before the International Court of Justice relating to the 1965 International
Convention on the Elimination of All Forms of Racial Discrimination (CERD). Should it
become necessary to do so, the Applicant State reserves the right to seek permission to amend
this Application to include those matters at a later stage.‖
169
U.N. Security Council, Letter dated 20 March 1995 from the Permanent Representative of
Georgia to the United Nations addressed to the President of the Security Council, U.N. Doc.
S/1995/212 (21 March 1995), emphasis added. Annex 44. 77
parties. Further, the object of the dispute would be Russia‘s neutrality in the
Abkhazian conflict, not racial discrimination by Russia in breach of CERD.
Section IV. Conclusion: there is no dispute between the two Parties
with respect to the interpretation or application of CERD
3.75 It follows from the need for a dispute as at the moment of the seisin of the
Court that it is not open to Georgia to rely on the exchanges in the course of the
hearing of 8-10 September 2008 to establish the requisite disagreement between
Georgia and Russia on a point of law or fact, a conflict of legal views or of
interests, with respect to the interpretation or application of CERD.
3.76 As follows from Section III above, Georgia has failed to establish the
existence of any such dispute between Georgia and Russia prior to lodging of
the Application. So far as concerns the three elements to a dispute established in
Mavrommatis, which must of course be satisfied cumulatively:
a. Disagreement (claim / positive opposition): Georgia has been unable to
evidence relevant claims to which Russia could voice its opposition, let
alone the existence of (i) a claim made by Georgia that (ii) was positively
170
opposed by Russia. Further, even though it would not be adequate for
Georgia to show that the interests of it and Russia were in conflict (cf.
South West Africa, as referred to at paragraph 3.17(c) above), it has failed
to meet even that threshold.
170
South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, 328; see also
Certain Property (Germany v. Liechtenstein) Preliminary Objections, Judgment, I.C.J.
Reports 2005, p. 6 at 18. 78
b. On a point of law or fact, a conflict of legal views or of interests:
Insofar as Georgia has been able to establish conflict, this concerns the
conflict, between Georgia on the one hand and Abkhazia and South
Ossetia on the other, in relation to the legal status of Abkhazia and South
Ossetia. If there had been a dispute concerning racial discrimination under
CERD, this fact would have been conveyed to Russia at some stage in the
9-year period from Georgia‘s ratification of CERD in 1999 (or indeed
earlier, with respect to a racial discrimination claim falling under another
international instrument). There was no such communication – until 12
August 2008. Further, however adroitly Georgia has sought in its
Memorial to portray this dispute as one based on rights under CERD, the
fact remains that the critical focus of the dispute concerns the territorial
issues and armed conflict.
c. Between two persons: the real dispute in this case is between Georgia
on the one hand and Abkhazia and South Ossetia on the other. There are
no doubt multiple instances to which Georgia could refer that establish the
existence of a dispute between it and Abkhazia or South Ossetia on
various matters prior to 12 August 2008, but that is of no relevance to the
question of whether there was a dispute between it and Russia.
3.77 So far as concerns the specific requirements for there to be a dispute under
CERD, the position is all the more straightforward: there has been no
communication of a matter to the Committee and on to the other State
concerned, there have been no failed negotiations/other settlement procedures,
and no reference of the matter back to the Committee.
3.78 Further, this is not a case where the defects in an application can be
regarded as de minimis in view of the fact that they could be cured by
recommencement of the proceedings by a fresh application: 79
a. Georgia can never cure the fact that it first sought to resolve its conflict
by recourse to use of force – in flagrant contradiction of the fundamental
principles on the peaceful settlement of disputes.
b. Georgia cannot now cure its failure to crystallise a dispute within the
specific meaning of Articles 11-12 and 22 of CERD (it has in any event
not revealed any intention of doing so).
c. Even if the existence of a dispute could be established (it cannot), it
would also be for Georgia to establish that the dispute fell within the
scope ratione materiae of CERD. This also Georgia cannot do, as the real
dispute concerns not racial discrimination but a conflict, between Georgia
on the one hand and Abkhazia and South Ossetia on the other, in relation
to the legal status of Abkhazia and South Ossetia, a conflict that has on
occasion erupted into armed conflict.
3.79 Finally, insofar as there is a dispute (quod non), then this is not a dispute
as to the interpretation or application of CERD. The real dispute is as identified
in Chapter II above. Insofar as there is a dispute between Georgia and Russia,
this is the dispute arising out of Georgia‘s unlawful use of force on 7 August
2008, born out of the allegations that Georgia has made as to the ―annexation‖
of its territory. Annexation is not a matter that falls within CERD. CHAPTER IV
SECOND PRELIMINARY OBJECTION:
THE PROCEDURAL CONDITIONS OF ARTICLE 22
OF CERD ARE NOT FULFILLED
4.1 Georgia invokes Article 22 of the 1965 Convention as the only basis for
171
the jurisdiction of the Court in the present case . According to that provision:
―Any dispute between two or more States Parties with respect to the
interpretation or application of this Convention, which is not settled by
negotiation or by the procedures expressly provided for in this
Convention, shall, at the request of any of the parties to the dispute, be
referred to the International Court of Justice for decision, unless the
disputants agree to another mode of settlement.‖
4.2 The pre-conditions to jurisdiction established in this provision must not be
taken lightly. This provision represents a careful compromise reached during the
negotiation of the Convention between the proponents of an automatic
jurisdiction of the Court and those for whom the monitoring mechanism created
by the Convention itself was to play the predominant role 17. One of the great
merits of this mechanism is that it guarantees to a State Party accused by another
State Party of racial discrimination within the meaning of the 1965 Convention a
possibility first to discuss and clarify the matter 173 and then to benefit from a
debate under the auspices of the Committee on the Elimination of Racial
Discrimination (CERD Committee), followed by a conciliation procedure 174.
This complex procedure is subject to a time-frame fixed by the Convention,
171
Application, para. 18; GM, p.293, para. 8.2.
172See infra, paras. 4.46-4.50.
173Article 11(1) of the Convention.
174
See Articles 12 and 13. A more detailed account of this procedure is given below under
para. 4.44. 81
which is flexible enough to offer ample opportunities for an amicable settlement.
In bypassing this carefully balanced mechanism and directly seising the ICJ,
Georgia has shown contempt for dispute resolution via diplomacy and the
possibility of finding a solution through the mechanism created by CERD and
has also misinterpreted the letter and the spirit of the Convention.
4.3 As the Court has explained in some detail in several recent cases, the
question of whether the conditions set forth in a compromissory clause under
which a State has consented to the Court‘s jurisdiction are fulfilled must be seen
as an issue of jurisdiction, and not as a problem of admissibility:
―48. The Court first notes that in determining the scope of the consent
expressed by one of the parties, the Court pronounces on its jurisdiction
and not on the admissibility of the application. The Court confirmed, in
the case concerning Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), that
―its jurisdiction is based on the consent of the parties and is confined to
the extent accepted by them‖ (ICJ Reports 2006, p.39, para. 88), and
further, that:
―the conditions to which such consent is subject must be regarded as
constituting the limits thereon... The examination of such conditions
relates to its jurisdiction and not to the admissibility of the application‖
(ibid. ).
This remains true, whether the consent at issue has been expressed
through a compromissory clause inserted in an international agreement, as
was contended to be the case in Armed Activities on the Territory of the
Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), or through ―two separate and successive acts‖ (Corfu Channel
(United Kingdom v. Albania), Preliminary Objection, Judgment, 1948,
175
ICJ Reports 1947-1948, p.28), as is the case here.‖
175
I.C.J., Judgment, 4 June 2008, Certain Questions of Mutual Assistance in Criminal
Matters (Djibouti v. France), para. 48. See also: I.C.J., Judgment, 18 November 2008,
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Preliminary Objections, para. 66, and the case-law cited in the ICJ
Judgment of 3 February 2006, Jurisdiction of the Court and Admissibility of the Application,
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Rep. 2006, p.39, para. 88. 82
4.4 In the present case, independently of the various grounds discussed in the
previous Chapter, it is apparent that the pre-conditions to the jurisdiction of the
Court established by this Article are not fulfilled because:
a. Article 22 of CERD conditions the jurisdiction of the Court on previous
attempts to settle the dispute through negotiations and the procedures
provided for in the Convention (Section I); and
b. those conditions are not fulfilled since the Parties had not conducted
any negotiations on the dispute alleged by Georgia, nor has Georgia used
the procedures provided for by the Convention (Section II).
Section I. Jurisdiction of the Court conditional on previous attempts
to settle the dispute through negotiations and the procedures
provided for by the Convention
4.5 The two preconditions provided for in Article 22 of the 1965 Convention
– the failure of negotiations and of the use of the procedures expressly provided
for in the Convention – have two central features:
a. they are prerequisites to the seisin of the Court, in that the Court has no
jurisdiction if they have not been fulfilled; and
b. they are cumulative, in that both means of settlement must have proved
unsuccessful before recourse may be had to the ICJ. 83
A. THE CONDITIONS PROVIDED FOR IN ARTICLE 22 OF CERD ARE
PRECONDITIONS TO THE SEISIN OF THE COURT
4.6 As the Court recalled in its Judgment of 3 February 2006,
―its jurisdiction is based on the consent of the parties and is confined to
the extent accepted by them …. When that consent is expressed in a
compromissory clause in an international agreement, any conditions to
which such consent is subject must be regarded as constituting the limits
176
thereon.‖
Since in the present case these conditions are not fulfilled, the Court cannot but
declare that it lacks jurisdiction. From this point of view, the title of Chapter
VIII of the Georgian Memorial (―Jurisdiction and Procedural Requirements‖)
and the division between the two sections (section I: ―Jurisdiction‖, section II:
―Procedural Requirements for the Submission of the Dispute to the Court‖) are
misleading, since they imply that the conditions set out in Article 22 are not
related to the Court‘s jurisdiction. On the contrary, these are fundamental
parameters which must be assessed by the Court before being able to examine
the substance of the case.
1. The duty to try to settle the dispute before seising the Court
4.7 The obligation to attempt to settle the dispute 177through negotiations is
not merely formalistic; rather, it expresses one of the sine qua non conditions to
17Armed Activities on the Territory of the Congo (New Application: 2002), Jurisdiction of the
Court and Admissibility of the Application, (Democratic Republic of the Congo v. Rwanda),
Rep. 2006, p.39, para. 88 – emphasis added; see also: 4 June 2008, Certain Questions of
Mutual Assistance in Criminal Matters (Djibouti v. France), para. 48, quoted above, at para.
4.3.
177This of course assumes the existence of a dispute. The discussion of the procedural
conditions in Article 22 in this Chapter by no means implies that the Russian Federation 84
which the States Parties to CERD subordinate their acceptance of the
compromissory clause. And, in the case of Russia, the withdrawal of its former
reservation to Article 22 could only have been made in view of the wording of
that provision.
4.8 According to Georgia, ―under Article 22 of the 1965 Convention, there is
no affirmative obligation for the Parties to have attempted to resolve the dispute
through negotiations (or through the procedures established by the Convention).
All that is required is that, as a matter of fact, the dispute has not been so
resolved‖ 178. This is an untenable interpretation in view of the text, the context,
as well as the travaux préparatoires of that provision. This is also confirmed by
a comparison with other clauses of the same character in other international
conventions. By applying the rules of interpretation reflected in Articles 31 and
32 of the Vienna Convention on the Law of Treaties, the Russian Federation will
demonstrate that Article 22 of the CERD imposes not one, but two further
positive obligations on the Parties before they can validly seise the Court.
a) The textual interpretation
4.9 In the expression ―which is not settled‖, the present tense does not
describe a state of fact, but requires that a previous attempt to settle the dispute
has been made bona fide. This is all the more obvious in the French version,
―qui n‟aura pas été réglée‖; here, the futur antérieur 179 expresses that a
recognizes the existence of a dispute between itself and Georgia. It does not, as Chapter III
(above) has explained.
178
GM, p.304, para. 8. 27.
179
Whose English equivalent is the future perfect – “will not have been setlled‖ – a
grammatical form rather rare. The same can be said for the Spanish text: ―Toda controversia
(...) que no se resuelva mediante negociaciones o mediante los procedimientos que se
establecen expresamente en ella, será sometida a la decisión de la Corte Internacional de 85
previous action (i.e. an attempt to settle the dispute) must have taken place
before another future step (i.e. the seisin of the Court). This is the only possible
common sense interpretation of Article 22 confirmed by the textual analysis of
other authentic texts of the Convention.
4.10 For its part, the Russian version reads: ―kotoryy ne razreshen putem
peregovorov ili procedur‖ (―который не разрешен путем переговоров или
процедур‖). Both the words ne razreshen (a past passive participle
corresponding to the verb ―to settle‖, indicating an action which has been carried
out on the noun to which it refers) and the word putem (literally ―by the way of‖,
a direct equivalent of ―par voie de‖) indicate a process of settlement of a dispute
rather than the pure status of a dispute as a pending one.
b) Identifying an effet utile for the phrase“which is not settled by negotiation or
by the procedures expressly provided for in this Convention”
4.11 Georgia‘s interpretation of the phrase ―which is not settled‖ renders it
tautological and meaningless: if a dispute is referred to the International Court of
Justice, it inevitably means that the dispute in question has not otherwise been
resolved. Georgia‘s interpretation would be to state the obvious, and leave a key
phrase without any ―effet utile‖. In the Free Zones of Upper Savoy and the
District of Gex case, the PCIJ already applied the principle of the effectiveness
of interpretation (ut res magis valeat quam pereat): ―[I]n case of doubt, the
clauses of a special agreement by which a dispute is refered to the Court, must,
if it does not involve doing violence to their terms, be construed in a manner
180
enabling the clauses themselves to have appropriate effects‖ . What would be
Justicia (...).‖; the Spanish language has a grammatical equivalent to the French futur
antérieur – subjuntivo pretérito perfecto – but, as in English, it is rarely used.
180P.C.I.J., Order of 19 August 1929, Free Zones of Upper Savoy and the District of Gex,
Series A, N° 22, p.13. See also, I.C.J., Judgment of 9 April 1949, Corfu Channel (United
Kingdom of Great Britain and Northern Ireland v. Albania), Rep. 1949, p.24; I.C.J., Judgment
of 3 February 1994, Territorial Dispute (Libyan Arab Jamahiriya/Chad), Rep. 1994, p.23, 86
the purpose of introducing the phrase ―by negotiation or by the procedures
expressly provided for in this Convention‖ in Article 22 if no logical and legal
consequence is to be derived from it?
4.12 Contrary to Georgia‘s assertions, the fulfillment of the conditions
181
contained in Article 22 is not simply a question of fact . That would be
tantamount to reducing these conditions to the question of the existence of a
182
dispute (which is a separate issue ). The word ―dispute‖ in Article 22 does not
stand alone; it is followed, and therefore qualified, by the phrase ―which is not
settled by negotiation or by the procedures expressly provided for in this
Convention‖. This phrase must add something to the word ―dispute‖: the only
disputes which fall within the ambit of the clause are those which cannot be
183
settled by the means indicated therein. Consequently, the right to have
recourse to the Court, and reciprocally the competence of the Court to entertain
the claim, depend on attempts to satisfy this condition and cannot arise unless
and until such attempts have been made and have failed. Article 22 imposes on
the Parties at least an ―obligation of behaviour‖ (obligation de comportement),
ICSID, Decision of 27 June1990, Asian Agricultural Products Ltd c. Sri Lanka (ARB/87/3),
para. 40 (rule E) or Decision of 12 October 2005, Noble Ventures, Inc. c. Roumanie
(ARB/01/11), para. 50. See also the definition given by C. Calvo as early as 1885: ―Si
l‟ambiguïté ou l‟obscurité, au lieu de porter seulement sur les mots, s‟étend à une ou à
plusieurs clauses, il faut interpréter ces clauses dans le sens qui [peut] leur faire sortir leur
effet utile, et en faveur de celui au profit de qui l‟obligation a été souscrite‖ C. Calvo,
Dictionnaire manuel de diplomatie et de droit international public et privé, 1885, republished
by The Lawbook Exchange Ltd, New Jersey, 2009, p.223.
181―Whether the condition is satisfied is a simple question of fact: has the dispute been
‗settled by negotiation or by the procedures expressly provided for in this Convention‘?‖ (GM
p.303, para. 8. 26); see also p.304, para. 8. 27.
182
See Chapter III above.
183
On the conventional characterization of the category of disputes that fall within the scope
of a compromissory clause, see mutatis mutandis I.C.J., Judgment, 2 December 1963,
Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Separate
Opinion of Judge Sir Percy Spender, Rep. 1963, pp. 88-90. See also the Opinion of Judge Sir
Gerald Fitzmaurice, p.119. 87
the fulfillment of which is apt for judicial review. Article 22 describes the
actions required from the Parties before they can lodge an Application before the
Court: negotiation and recourse to the conciliation mechanism provided by the
Convention. Any other interpretation would lead to a denial of the plain
meaning as well as of the effet utile of the clause.
4.13 Moreover, the interpretation described above is also in line with the case
law of the Court, according to which ―before a dispute can be made the subject
of an action at law, its subject matter should have been clearly defined by means
of diplomatic negotiations‖ 184. For its part, the interpretation alleged by Georgia
would be tantamount to imposing on the Court the heavy burden of determining
185
a dispute the contours of which the Parties have not determined .
c) The travaux préparatoires
4.14 The travaux préparatoires of the Convention reveal the difficulty in
introducing an effective compromissory clause and confirm the interpretation
resulting from a textual approach.
4.15 Within the United Nations, the drafting history of the implementation
clauses in the 1965 Convention involved three different bodies (the Sub-
Commission on Prevention of Discrimination and Protection of Minorities, the
Commission on Human Rights, and the Third Committee of the General
Assembly).
184P.C.I.J., Judgment of 30 August 1924, Mavrommatis Palestine Concessions, Objection to
the Jurisdiction of the Court, Series A, N° 2, p.15. See also I.C.J., Judgment of 26 November
1957, Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections,
Rep. 1957, p.148-149.
185See above, Chapter III, para. 3.64 88
4.16 The introduction in the Convention itself of articles on its implemention is
much due to the insistence of Mr. Inglés (the Philippinean Expert in the Sub-
186
Commission) . Due to lack of time, the Sub-Commission could not discuss at
length the articles on measures for implementation; however, Mr. Inglés‘
preliminary draft was transmitted to the Commission for consideration.
4.17 The Members of the Commission on Human Rights recognized that
further discussion was needed on the implementation measures 18; but, again due
to lack of time, the Commission decided to include Mr. Inglés‘ preliminary text
in the draft and transmitted the text as it stood to the Third Committee of the
General Assembly, specifying that the implementation part needed further
discussion and that no vote had been taken on it by the Commission 188. The
Third Committee of the General Assembly discussed the preliminary draft and
adopted it with some modifications, mostly reflecting the amendments made by
the Philippines and Ghana.
4.18 The Third Committee was confronted with a number of proposals and
amendments that purported either to provide for the Court‘s jurisdiction in a
separate Protocol or to introduce a cautiously drafted clause into the Convention
itself89. The latter formula was finally accepted, but the drafters were once
again faced with two possibilities:
186
U.N. Economic and Social Council, Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, Summary record of the 427th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.427 (12 February 1964), pp. 11-17. Annex 6.
187U.N. Economic and Social Council, Commission on Human Rights, Summary record of
the 810th Meeting, U.N. Doc. E/CN.4/SR.810 (15 May 1964), p.9. Annex 8.
188
U.N. General Assembly, 20th session, Official Records, Annexes, Report of the Third
Committee, U.N. Doc. A/6181 (18 December 1965). Annex 23. See also U.N. General
Assembly, 20th session, Official Records, Third Committee, Record of the 1344th meeting,
U.N. Doc. A/C.3/SR.1344 (16 November 1965), p.315, para. 23. Annex 10.
189
U.N. General Assembly, 20th session, Third Committee, Poland: amendments to document
A/C.3/L.1221, U.N. Doc. A/C.3/L.1272 (1 November 1965). Annex 22. See also, e.g., the 89
- seisin of the Court through the common consent of the Parties to the
dispute, a possibility which, as some members of the Third Committee
explained, already existed in international law under the form of the
compromis and would have rendered the clause in the Convention
superfluous:
―Mr. MacDonald (Canada) referring to the suggested final clause
VIII, said that he opposed the sixth Polish amendment
(A/C.3/L.1272), since it would have the effect of nullifying the
entire clause on the settlement of disputes. If all parties to a dispute
had to consent to its submission to the International Court of
Justice, there was no need for a special provision on the subject,
since any inter-State dispute could be brought before the Court with
the common consent of the parties‖ 19;
- or the introduction of compromissory clause that would allow for
unilateral seisin. Several delegations considered this necessary. As the
discussions in the Third Committee reveal, the supporters of the
compromissory clause nonetheless underlined that recourse to the Court
was conditioned by previous attempts to settle the dispute. This certainly
facilitated the acceptance of the compromissory clause:
―Mr. MacDonald (Canada): Any party to a dispute over the
interpretation or application of the Convention should be able to
bring the matter before the Court, for the Convention was being
statement by the Polish representative, M. Resich, U.N. General Assembly, 20th session,
Official Records, Third Committee, Record of the 1347th meeting, U.N. Doc. A/C.3/SR.1347
(18 November 1965), p.341, paras. 68-69 (Annex 13). Ghana, which otherwise was one of the
most devoted sponsors of the implementation measures, agreed to forego the possibility of
unilateral seisin, in order to avoid relegating all the implementation measures to a separate
protocol. See U.N. General Assembly, 20th session, Official Records, Annexes, Third
Committee, Ghana: revised amendments to document A/C.3/L.1221, U.N. Doc.
A/C.3./L.1274/REV.1 (12 November 1965) (Annex 9).
190U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1367th meeting, U.N. Doc. A/C.3/SR.1367 (7 December 1965), p.453, para. 24. Annex 19. 90
prepared under United Nations auspices and the Court was the
Organization‘s principal juridical organ. Moreover, clause VIII
allowed parties to a dispute considerable latitude. They could resort
to negotiation and other modes of settlement and no time-limit was
imposed for settlement. A controversy could thus be protracted
almost indefinitely before recourse was had to the Court. In view of
the flexibility of the article‘s terms, he did not see why the Polish
delegation should want, in effect, to eliminate reference to the Court
under the Convention.‖ 191
4.19 The possibility of unilateral seisin was eventually accepted, but the
discussions in the Third Committee show that this was possible only by a
multiplication of safeguards designed to address the concerns that various States
had in submitting themselves to the Court‘s jurisdiction:
―Mr. Lamptey (Ghana): (...) the idea of recourse to the International Court
of Justice (...) gave rise to many reservations‖ 192
Thus, the compromissory clause was on occasion seen as an obstacle to the
ratification of the Convention:
Mr Kornienko (Ukrainian Soviet Socialist Republic): ―[A] sovereign State
could not be subject to the Court‘s jurisdiction except by its own consent.
(...) The Committee should not now take a193ckward step and create fresh
obstacles for prospective signatories.‖
The approach that finally allowed for the introduction of unilateral seisin was to
ensure the existence of a whole process of settling the dispute before recourse
was to be made to the Court:
191Ibid., p.453, para. 25.
192U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1354 meeting, U.N. Doc. A/C.3/SR.1354 (25 November 1965), p.379, para. 54. Annex 16.
193
U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1367th meeting, U.N. Doc. A/C.3/SR.1367 (7 December 1965), p.453, para. 27. Annex 19. 91
As Mr. Cochaux (Belgium) explained: ―As others have noted, clause VIII
provided for various modes of settlement offering ample opportunity for
194
agreement before the Court was resorted to‖ .
d) The ICJ‟s interpretation of compromissory clauses providing for procedural
requirements
4.20 A table appended to the present Chapter (Table 1, Compromissory clauses
providing for preconditions to the Court‟s seisin) 195 compares the various
formulas which can be found in a number of treaties providing for the
jurisdiction of the ICJ, in relation to various procedural requirements.
4.21 A study of Table 1 leads to the inescapable conclusion that, whenever a
compromissory clause establishes prerequisites for the Court‘s seisin, the Court
has constantly required their fulfillment, regardless of the drafting variations.
4.22 The obligation to try to settle the dispute before the Court‘s seisin has
been expressed in different ways:
196
- ―dispute... if it cannot be settled‖;
- ―dispute... which cannot be settled‖; 197
194
Ibid., p.454, para. 40 – emphasis added.
195See infra, Table 1, at the end of the Chapter, p.173.
196
PCIJ, Judgment, 30 August 1924, Mavrommatis Palestine Concessions Case
(Jurisdiction), P.C.I.J., Series A, No. 2 (Article 26 of the Mandate for Palestine); ICJ,
Judgment, 21 December 1962, South West African Cases (Liberia and Ethiopia v. South
Africa), Preliminary Objections (Article 7 of the Mandate for South West Africa); ICJ,
Judgment, 2 December 1963, Northern Cameroons (Cameroon v. United Kingdom),
Preliminary Objections (Article 19 of the Trusteeship Agreement for the Territory of the
Cameroons under British Administration).
197ICJ, Judgment, 27 February 1998, 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 (Article 14, paragraph 1, of the
Montreal Convention); ICJ, Judgment, 3 February 2006, Armed Activities on the Territory of
the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), 92
198
- ―dispute... which is not settled‖;
199
- ―dispute... not satisfactorily adjusted by diplomacy‖;
- ―dispute which the High Contracting Parties shall not satisfactorily
adjust by diplomacy‖. 200
4.23 In all these cases, where the compromissory clauses entailed an obligation
on the parties to try to settle the dispute, the Court considered that it had to
verify, in casu, the fulfilment of this obligation. The different formulations of
the compromissory clause sometimes left the parties some marginfor manœuvre
(―dispute... not satisfactorily adjusted by diplomacy‖) and the Court has
201
appeared to take this into account . But when the clauses left no such margin,
Jurisdiction of the Court and Admissibility of the Application (in relation to article Article 14,
paragraph 1, of the Montreal Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation) ; ICJ, Order, 28 May 2009, Questions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal) Provisional Measures (Article 30, paragraph 1 of
the Convention against Torture).
198
ICJ, Advisory Opinion, 26 April 1988, Applicability of the Obligation to Arbitrate under
Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Section 21,
paragraph (a) of the Headquarters Agreement between the United Nations and the United
States); ICJ, Judgment, 3 February 2006, Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda) Jurisdiction of the Court
and Admissibility of the Application (Article 29, paragraph 1, of the Convention on
Discrimination against Women and Article 75 of the WHO Constitution).
199ICJ, Judgment, 24 May 1980, United States Diplomatic and Consular Staff in Tehran
(United States of America v. Iran), (Article XXI, paragraph 2, of the Treaty of Amity,
Economic Relations, and Consular Rights of 1955 between the United States of America and
Iran); ICJ, Judgment, 26 November 1984, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction of the Court and
Admissibility of the Application (Article XXIV, paragraph 2, of the Treaty of Friendship,
Commerce and Navigation between the United States of America and Nicaragua, ); ICJ,
Judgment, 12 December 1996, Oil Platforms (Islamic Republic of Iran v. United States of
America), Preliminary Objection (Article XXI, paragraph 2, of the Treaty of Amity,
Economic Relations, and Consular Rights of 1955 between the United States of America and
Iran).
200ICJ, Judgment, 20 July 1989, Elettronica Sicula S. p.A. (ELSI) (United States of America v.
Italy) (Article XXVI of the Treaty of Friendship, Commerce and Navigation of 2 June 1948
between Italy and the United States).
201See infra, paras. 4.29-4.35. 93
the Court has considered it necessary to strictly verify that real attempts had
actually taken place or met with a categorical rejection from the other side. As
Table 1 shows through an analysis of the Court‘s decisions, this conclusion is
reached regardless of whether the clause was formulated as ―cannot be settled‖
or ―is not settled‖.
4.24 As for the methods open to the Parties for settling the dispute, these differ
and depend upon each treaty. As Sir Gerald Fitzmaurice aptly recalled in his
Separate Opinion in the Northern Cameroons case:
―Article 19 [of the Trusteeship Agreement for the Territory of the
Cameroons under British Administration between the United Kingdom
and the French Republic, approved by the General Assembly on 13
December 1946 202] is an absolutely common-form jurisdictional clause
such as appears, or has appeared, in scores, not to say hundreds, of treaties
and other international agreements. Its meaning is perfectly well
understood by international lawyers the world over. What it contemplates
in the present connection is a settlement or attempted settlement directly
between the parties- by negotiation or other means. By ‗other means‘ is
meant such things as conciliation, arbitration, fact-finding enquiries, and
so on. Under Article 19 of the Trust Agreement, an attempt at settlement
by negotiation, or by one or other of these means, would have had to
precede any proposal for a reference to the International Court, before
any obligation to have recourse to the Court could arise. It is quite clear
that no such attempt at settlement, at least by any normally envisaged
‗other means‘, was made in the present case; and here it may be useful to
recall that in a common-form jurisdictional clause such as Article 19,
settlement by ‗other means‘ denotes a settlement by means other than
negotiation, but nevertheless by means such as the parties have jointly
agreed to resort to or employ. It does not include means imposed by the
one party on the other, or on both of them by an outside agency. The
whole point of the ultimate reference to the Court (to which the parties
have duly agreed under the jurisdictional clause) is that they have not
202
Text of Article 19: ―If any dispute whatever should arise between the Administering
Authority and another Member of the United Nations relating to the interpretation or
application of the provisions of this Agreement, such dispute, if it cannot be settled by
negotiation or other means, shall be submitted to the International Court of Justice, provided
for in Chapter XIV of the United Nations Charter.‖ 94
been abl203o settle the dispute themselves, by negotiation or agreed other
means‖ .
4.25 Thus, in the Armed activities (2002) case, the Democratic Republic of the
Congo sought to found the jurisdiction of the Court on Article 75 of the WHO
Constitution, which provides:
―Any question or dispute concerning the interpretation or application of
this Constitution which is not settled by negotiation or by the Health
Assembly shall be referred to the International Court of Justice in
conformity with the Statute of the Court, unless the parties concerned
agree on another mode of settlement.‖
In respect to this article, the Court found that none of the preconditions to its
seisin were met:
―The Article [75 of the WHO Constitution] requires that a question or
dispute must specifically concern the interpretation or application of the
Constitution. In the opinion of the Court, the DRC has not shown that
there was a question concerning the interpretation or application of the
WHO Constitution on which itself and Rwanda had opposing views, or
that it had a dispute with that State in regard to this matter.
The Court further notes that, even if the DRC had demonstrated the
existence of a question or dispute falling within the scope of Article 75 of
the WHO Constitution, it has in any event not proved that the other
preconditions for seisin of the Court established by that provision have
been satisfied, namely that it attempted to settle the question or dispute by
negotiation with Rwanda or that the World Health Assembly had been
204
unable to settle it‖ .
203I.C.J., Judgment, 2 December 1963, Northern Cameroons (Cameroon v. United Kingdom),
Preliminary Objections, Separate Opinion of Judge Sir Gerald Fitzmaurice, pp. 122-123.
Emphasis added.
204
I.C.J., Judgment of 3 February 2006, Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court
and Admissibility of the Application, Rep. 2006, p.43, paras 99-100. 95
Nothing distinguishes the present case from Armed Activities in this respect. It
is, in particular, worth noting that Article 75 of the WHO Constitution is worded
exactly as Article 22 of CERD so far as concerns the precondition to the seisin
of the Court (―which is not settled by negotiation…‖).
4.26 It follows that, according to an interpretation made in good faith in
accordance with the ordinary meaning to be given to its terms in their context
and in the light of its object and purpose, Article 22 of CERD must be
interpreted as imposing upon a Party complaining of the misapplication of the
Convention the obligation to endeavour to settle the dispute by negotiation or by
the procedures expressly provided for in the Convention prior to referring it to
the ICJ for decision. This interpretation is in keeping with the Court‘s
interpretation of similar provisions and with the travaux préparatoires of Article
22 of CERD.
2. The Means to Settle the Dispute (as established by Article. 22 of CERD)
a) Negotiations
4.27 Negotiations provide the usual means of settling disputes in international
law and it must be noted that even in the absence of a formal requirement for
prior negotiations in a compromissory clause, the Court has considered the
existence of negotiations prior to the submission of the dispute 205.
4.28 The fundamental importance of the obligation to negotiate, and its role in
the peaceful settlement of disputes, has been underlined time and again by the
Court:
205The Judges observed that negotiations may indicate the existence of a dispute, and could
facilitate a determination of the object of that dispute. See above, para. 3.64. See also, above,
para. 4.24, Separate Opinion of Judge Sir Gerald Fitzmaurice. 96
―[T]he Court would recall not only that the obligation to negotiate which
the Parties assumed by Article 1, paragraph 2, of the Special Agreements
arises out of the Truman Proclamation, which, for the reasons given in
paragraph 47, must be considered as having propounded the rules of law
in this field, but also that this obligation merely constitutes a special
application of a principle which underlies all international relations, and
which is moreover recognized in Article 33 of the Charter of the United
Nations as one of the methods for the peaceful settlement of international
disputes. There is no need to insist upon the fundamental character of this
method of settlement, except to point out that it is emphasized by the
observable fact that judicial or arbitral settlement is not universally
accepted‖ 206.
4. 29 Negotiations are all the more important where required in a
compromissory clause, and hence are correctly construed as pre-conditions to
jurisdiction. When Parties to a dispute are bound by a treaty provision to that
effect, it is imperative that they go through an agreed negotiation phase before
seising the Court. The principle of pacta sunt servanda is in play. Correlatively,
when a court or tribunal is seised under such a compromissory clause, the judges
must verify that the condition is effectively fulfilled in order to preserve the
fundamental principle of consent to jurisdiction.
4.29 It is true that in Nicaragua, the Court was of the view that:
―it does not necessarily follow that, because a State has not expressly
referred in negotiations with another State to a particular treaty as having
been violated by conduct of that other State, it is debarred from invoking a
compromissory clause in that treaty. The United States was well aware
that Nicaragua alleged that its conduct was a breach of international
obligations before the present case was instituted; and it is now aware that
specific articles of the 1956 Treaty are alleged to have been violated. It
would make no sense to require Nicaragua now to institute fresh
proceedings based on the Treaty, which it would be fully entitled to do.
As the Permanent Court observed, ‗the Court cannot allow itself to be
hampered by a mere defect of form, the removal of which depends solely
206I.C.J., Judgment, 20 February 1969, North Sea Continental Shelf (Federal Republic of
Germany/Denmark), Rep. 1969, pp. 47, para. 86. 97
on the party concerned (Certain German Interests in Polish Upper Silesia,
Jurisdiction, Judgment, No. 6, 1925, P.C.I.J., Series A, No. 6, p.14).‖ 207
208
4.30 But the present case is quite different .
4.31 Firstly, the compromissory clause itself was differently worded and
referred not to ―disputes not settled by negotiation‖, but to disputes ―not
satisfactorily adjusted by diplomacy‖, 209an expression which, as noted by Sir
Robert Jennings, is ―not an exigeant requirement‖ 210. The use of words such as
―adjusted‖ and, even more, ―satisfactorily‖ supports this view and shows that
that provision did not require the Court to assess an objective reality, but rather
to inquire into the subjective opinion of the Parties. In this respect, the situation
211
was comparable to the jurisdictional requirements of the Pact of Bogotá , as
207I.C.J., Judgment, 26 November 1984, Military and Paramilitary Activities in and against
Nicaragua, Jurisdiction and Admissibility, Rep. 1984, pp. 428-429, para. 83. On formalistic
defaults see also: I.C.J., Judgment, 18 November 2008, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary
Objections, para. 82. One can see that the formalistic default approach was here applied in
connection with a ratione temporis exception and not to the prerequisites of a compromissory
clause.
208
As explained above (Chapter III, para. 3.33 (b)), Russia was not (and could not have been)
aware that Georgia considered it to be in breach of obligations relating to racial
discrimination.
209
The full text of Article XXIV, paragraph 2, of the Treaty of Friendship, Commerce and
Navigation between the United States of America and Nicaragua, signed at Managua on 21
January 1956 reads as follows: ―Any dispute between the Parties as to the interpretation or
application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted
to the International Court of Justice, unless the Parties agree to settlement by some other
pacific means‖.
210I.C.J., Judgment, 26 Nov. 1984, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Separate
Opinion of Judge Sir Robert Jennings, Rep. 1984, p.556. (quoted in GM, pp. 303-304, para. 8.
26).
211Article II of the Pact of Bogotá: ―The High Contracting Parties recognize the obligation to
settle international controversies by regional procedures before referring them to the Security
Council of the United Nations. 98
analyzed by the Court in the case of Border and Transborder Armed Actions
between Nicaragua and Honduras. In that case, the Court observed
―that that jurisprudence concerns cases in which the applicable text
referred to the possibility of such settlement; Article II however refers to
the opinion of the parties as to such possibility. The Court therefore does
not have to make an objective assessment of such possib212ty, but to
consider what is the opinion of the Parties thereon‖.
In Nicaragua, the mere fact that one of the Parties had seised the Court was a
sufficient proof that it was not satisfied with the result obtained from diplomacy,
and, therefore, that the dispute was ―not satisfactorily adjusted‖. However, as
shown in the previous Section, in the present case, Article 22 imposes the
requirement that negotiations have taken place and have failed.
4.32 Secondly, – and even more importantly – the objection made by the
United States in Nicaragua centred on the fact that Nicaragua had not expressly
invoked the violation of the 1956 FCN Treaty during the negotiations with the
United States. The United States did not allege that negotiations had not taken
place, it limited itself to denouncing the absence of a formal invocation of the
Treaty:
Consequently, in the event that a controversy arises between two or more signatory states
which, in the opinion of the parties, cannot be settled by direct negotiations through the usual
diplomatic channels, the parties bind themselves to use the procedures established in the
present Treaty, in the manner and under the conditions provided for in the following articles,
or, alternatively, such special procedures as, in their opinion, will permit them to arrive at a
solution.‖
212
I.C.J., Judgment, 20 December 1988, Jurisdiction of the Court and Admissibility of the
Application, Rep. 1988, p.94, para. 63. 99
―[A]ccording to the United States, Nicaragua has never even raised in
negotiations with the United States the application or interpretation of the
213
Treaty to any of the factual or legal allegations in its Application.‖
In the present case, not only has Georgia never invoked CERD in its relations
with Russia in the context of the situation in Abkhazia and South Ossetia prior
to the filing of its Application, but also, as Chapter III of the present Objections
demonstrates 21, the circumstances could not be interpreted as obliging Russia to
infer a claim over racial discrimination from the various political disagreements
it had had with Georgia over the recent years. As the Court noted in the Armed
Activities (2002) case:
215
―… Article 75 of the WHO Constitution[ ] … requires that a question or
dispute must specifically concern the interpretation or application of the
Constitution. In the opinion of the Court, the DRC has not shown that
there was a question concerning the interpretation or application of the
WHO Constitution on which itself and Rwanda had opposing views, or
216
that it had a dispute with that State in regard to this matter.‖
Similarly, as demonstrated in Chapter III, and further in Section II of this
Chapter, Georgia has not shown that there was a question concerning the
interpretation or application of CERD regarding which the Parties had opposing
views.
4.33 Thirdly, the character of the treaties at stake in Nicaragua on the one hand
and in the present case on the other hand, is entirely different. In Nicaragua, the
213I.C.J., Judgment, 26 Nov. 1984, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, p.227,
para. 81.
214
See above, para. 3.33 (b)
215See above, para. 4.25.
216I.C.J., Judgment, 3 February 2006, Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), I.C.J. Reports 2006,
p.43, para. 99. 100
FCN Treaty between the U.S. and Nicaragua mainly established purely
synallagmatic obligations, while, in the present case, CERD is a multilateral
treaty that establishes objective/integral obligations. The erga omnes character
of the obligations instituted therein is reflected in the procedures established by
the Convention to deal with the inter-State complaints, which involve the other
Parties to the Convention. Moreover, the present situation is radically different
from Nicaragua, where the state of armed conflict between the parties (which
was at the heart of Nicaragua‘s Application) automatically affected the FCN
Treaty. It could not have been otherwise since the state of armed conflict is the
very negation of friendly relations promoted by this type of treaty.
4.34 Finally, in Nicaragua, the 1956 FCN Treaty was a subsidiary basis of
jurisdiction only, and the Court had already accepted that it had jurisdiction
under the optional clause. The Court was therefore more concerned to discuss
whether the acts regarding which its jurisdiction was already established, and the
wrongfulness of which could be appreciated under customary international law,
could also be qualified in view of the Treaty.
4.35 Besides, as Sir Robert Jennings made clear,
―the facts in [that] case disclose that Nicaragua brought the subject of the
application before the Security Council, where they were met with the
United States exercising its veto. The United Nations Organization, not
least the Security Council, must now surely be an orthodox forum for
diplomacy. It would seem, therefore, that the requirements of Article
217
XXIV are most fully met in this matter.‖
By contrast, no negotiations have taken place between Russia and Georgia on
the subject-matter of the alleged dispute (and the fact that Georgia has proved
unable to mention a single occasion when CERD has been invoked in the
217I.C.J., Judgment, 26 Nov. 1984, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Separate
Opinion of Judge Sir Robert Jennings, Rep. 1984, p.556 101
relations between the Parties is only a sign – but a very revealing sign – that
there is no dispute between them on issues of racial discrimination). In other
words, the issue here is not only that Georgia has not expressly invoked CERD,
but that this silence is a confirmation that there is no dispute that concerns racial
discrimination between the Parties.
4.36 Moreover, although it is certainly correct that an obligation to negotiate
(pactum de negociando) does not imply an obligation to agree (pactum de
contrahendo), nevertheless the former does imply that negotiations have
effectively taken place. It is only when (and if) these have failed that the parties
may start the next phase of the settlement process. Absent initiation of
negotiations, the question of their outcome (and of their failure) does not even
arise.
4.37 The case-law of the Court is rich as to the criteria to be applied to evaluate
whether or not negotiations between parties to a dispute have reached a
deadlock. The Judgments do not focus on the existence of a negotiation process,
but on how long this should have lasted and how real the efforts were to come to
a negotiated solution of the dispute before the Court could be seised. Whatever
form they may take, substantially, negotiations are an exchange of points of
view on law and facts, of mutual compromises in order to reach an agreement:
―As the Permanent Court of International Justice said in its Order of 19
August 1929 in the case of the Free Zones of Upper Savoy and the
District of Gex, the judicial settlement of international disputes "is simply
an alternative to the direct and friendly settlement of such disputes
between the parties" (P.C.I.J., Series A, No. 22, at p.13). Defining the
content of the obligation to negotiate, the Permanent Court, in its
Advisory Opinion in the case of Railway Traffic between Lithuania and
Poland, said that the obligation was "not only to enter into negotiations
but also to pursue them as far as possible with a view to concluding
agreements", even if an obligation to negotiate did not imply an obligation 102
to reach agreement (P.C.I.J., Series A/B, No. 42, 1931, at p.116). In the
present case, it needs to be observed that whatever the details of the
negotiations carried on in 1965 and 1966, they failed of their purpose
because the Kingdoms of Denmark and the Netherlands, convinced that
the equidistance principle alone was applicable, in consequence of a rule
binding upon the Federal Republic, saw no reason to depart from that rule;
and equally, given the geographical considerations stated in the last
sentence of paragraph 7 above, the Federal Republic could not accept the
situation resulting from the application of that rule. So far therefore the
negotiations have not satisfied the conditions indicated in paragraph 85
(a), but fresh negotiations are to take place on the basis of the present
218
Judgment.‖
4.38 In all the following cases, the Court concluded that the applicant initiated
a negotiation process that resulted in a peremptory non possumus or non
volumus, which led it to conclude that any negotiation would be fruitless 21:
- in Mavrommatis, the discussions had commenced (by exchange,
although brief, of notes between the two Governments on the issue brought
before the PCIJ); moreover, these discussions were the continuation of previous
negotiations between Mr. Mavrommatis and the British Government on the very
same subject matter as the one subsequently submitted by the Greek
Government to the Court 220.
- in the South West Africa cases, the negotiations had reached a deadlock
and expectations of success were nil 221; the Court based its appreciation on
218I.C.J., Judgment, 20 February 1969, North Sea Continental Shelf (Federal Republic of
Germany/Denmark), Rep. 1969, pp. 47-48, para. 87.
219
See also Table 1, at the end of this Chapter, p.173.
220P.C.I.J., Judgment, 30 August 1924, Mavrommatis Palestine Concessions Case
(Jurisdiction), P.C.I.J., Series A, No. 2, p.13
221
I.C.J., Judgment, 21 December 1962, South West African Cases (Liberia and Ethiopia v.
South Africa), Rep. 1962, pp. 344-346. 103
several letters sent by the Permanent Representative of the Union of South
Africa to the Chairman of the Committee on South West Africa, in which it was
stated that South Africa considers ―doubtful whether there is any hope that new
negotiations within the scope of your Committee's terms of reference will lead
222
to any positive results‖ .
- in the case relating to the Applicability of the Obligation to Arbitrate
under Section 21 of the United Nations Headquarters Agreement of 26 June
1947, bilateral contacts had taken place between the parties to the dispute,
expressly referring to the compromissory clause 22; during these contacts, the
United States had made clear that it could not and would not participate in the
arbitration procedure that was the very subject matter of the dispute before the
Court. The Court therefore considered that ―taking into account the United
States attitude, the Secretary-General has in the circumstances exhausted such
possibilities of negotiation as were open to him‖ 22.
4.39 In the same vein, in the Northern Cameroons case, Sir Gerald Fitzmaurice
defined the meaning of ―negotiation‖ in international law and diplomacy and
concluded that ―disputation‖ and ―negotiation‖ are two distinct concepts:
―Was there any attempt at settlement by ‗negotiation‘, and what does
negotiation mean? It does not, in my opinion, mean a couple of States
arguing with each other across the floor of an international assembly, or
circulating statements of their complaints or contentions to its member
States. That is disputation, not negotiation; and in the Joint Opinion of
Judge Sir Percy Spender and myself in the South West Africa case, we
222
I.C.J., Judgment, 21 December 1962, South West African Cases (Liberia and Ethiopia v.
South Africa), Preliminary Objections, Rep, p.345.
223I.C.J., Advisory Opinion, 26 April 1988, Applicability of the Obligation to Arbitrate under
Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Rep. 1988, pp.
32-33, paras. 51-55.
224
Ibid., Rep. 1988, p.33, para. 54. 104
gave reasons for not regarding this kind of interchange as constituting a
negotiation within the contemplation of such a provision as Article 19 of
the Trust Agreement.
It was there equally pointed out that, even if it were possible to regard
such interchanges as constituting negotiation according to the generally
received concept of that term, it would still not be right to hold that a
dispute ‗cannot‘ be settled by negotiation, when the most obvious means
of attempting to do this, namely by direct discussions between the parties,
had not even been tried since it could not be assumed that these would
necessarily fail because there had been no success in what was an entirely
225
different, and certainly not more propitious, milieu.‖
4.40 The International Tribunal for the Law of the Sea has had the occasion to
underline that diplomatic notes on a precise subject matter, precisely stating the
claims of the Parties, do amount to negotiation:
―39. Considering that Malaysia states that, on several occasions prior to
the institution of proceedings under Annex VII to the Convention by
Malaysia on 4 July 2003, it had in diplomatic notes informed Singapore of
its concerns about Singapore‘s land reclamation in the Straits of Johor and
had requested that a meeting of senior officials of the two countries be
held on an urgent basis to discuss these concerns with a view to amicably
resolving the dispute;
40. Considering that Malaysia maintains that Singapore had categorically
rejected its claims and had stated that a meeting of senior officials as
requested by Malaysia would only be useful if the Government of
Malaysia could provide new facts or arguments to prove its
contentions‖ 22.
225I.C.J., Judgment, 2 December 1963, Northern Cameroons (Cameroon v. United Kingdom),
Preliminary Objections, Separate Opinion of Judge Sir Gerald Fitzmaurice, Rep. 1963,
p.123.
226
ITLOS, Order, 8 October 2003, Provisional Measures, Case concerning Land Reclamation
by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Reports 2003,
Volume 7, p.19, paras. 39-40. See also: ITLOS, Order of 27 August 1999, Cases Nos. 3 and 4,
Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional
Measures, Reports 1999, Volume 3, pp. 294-295, paras. 57-60; ITLOS, Order, 3 December
2001, MOX Plant (Ireland v. United Kingdom), Provisional Measures, ITLOS Rep. 2001,
p.107, para. 60; Arbitral tribunal constituted pursuant to article 287, and in accordance with
Annex VII of the United Nations Convention on the Law of the Sea, Award of 11 April 2006, 105
On the contrary, in the Armed Activities (2002) case, the Court considered that
mere protests cannot amount to negotiation:
―The Court notes that in the present case the DRC made numerous
protests against Rwanda‘s actions in alleged violation of international
human rights law, both at the bilateral level through direct contact with
Rwanda and at the multilateral level within the framework of international
institutions such as the United Nations Security Council and the
Commission on Human and Peoples‘ Rights of the Organization of
African Unity. In its Counter-Memorial and at the hearings the DRC
presented these protests as proof that ‗the DRC has satisfied the
preconditions to the seisin of the Court in the compromissory clauses
invoked‘. Whatever may be the legal characterization of such protests as
regards the requirement of the existence of a dispute between the DRC
and Rwanda for purposes of Article 29 of the Convention, that Article
requires also that any such dispute be the subject of negotiations. The
evidence has not satisfied the Court that the DRC in fact sought to
commence negotiations in respect of the interpretation or application of
227
the Convention‖ .
4.41 Similarly, in the present case there has been no negotiation, whether direct
or indirect, bilateral or multilateral, between the alleged Parties on the subject
matter of the alleged dispute. If ever Georgia made an attempt to attract the
attention of the international community towards racial discrimination allegedly
committed by Russia in Abkhazia and South Ossetia (quod non), it would not
228
even qualify as ―disputation‖ : not only has no claim been formulated that
Russia could positively oppose, but indeed no international forum and no third
State has ever indicated having understood any of Georgia‘s démarches as
referring to the alleged dispute now brought before the Court. Indeed the alleged
Barbados v. The Republic of Trinidad and Tobago, paras. 194-208, available:
http://www.pca-cpa.org/upload/files/Final%20Award.pdf.
227
I.C.J., Judgment of 3 February 2006, Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court
and Admissibility of the Application, Rep. 2006, pp. 40-41, para. 91.
228See above, para. 4.39. 106
dispute in question could not have been settled by negotiation in the absence of
any commencement of negotiation. Nor could these ―non-negotiations‖ have
reached a deadlock before even starting.
b) The CERD Mechanism
4.42 Speaking of the CERD mechanism, Russia refers to ―the procedures
expressly provided for in this Convention‖ (Article 22 of CERD). The use of the
adverb expressly reflects the fact that Article 22 insists that these procedures are
the method open to the parties for settling the dispute prior to the seisin of the
ICJ. As the Oxford Dictionary explains, ―expressly‖ means: ―In direct or plain
terms; clearly, explicitly, definitely‖, but also ―For the express purpose; on
purpose‖ 229. The French version, expressément, has exactly the same
meaning 23. The Russian version confirms the emphasis upon intent: the word
―специально‖ (specialno) that corresponds to ―expressly‖ in the English text, is
commonly translated as ―specially‖, ―especially‖, or else ―deliberately‖. Since
the procedures were expressly, i.e. deliberately, provided for in the Convention,
to allow a State Party to seise the Court without having tried to use those
procedures would go against this understanding.
(i) The applicable rules / The inter-State complaint Procedure as established by
the Convention
4.43 While the demand for prior negotiation is quite usual in the international
practice of peaceful settlement, recourse to the procedures expressly provided
229The Oxford English Dictionnary, available: http://dictionary.oed.com/.
230
As explained by the CNRS Dictionary, Le Trésor de la Langue Française Informatisé
(TLF), expressément means: ―1. De façon précise, formelle; en termes exprès, de façon
expresse. 2. Avec une intention bien déterminée‖, available:
http://atilf.atilf.fr/dendien/scripts/tlfiv5/advanced. exe?8;s=852343365. 107
for in the Convention mechanism is more innovative since it introduces a
supervision and conciliation procedure as a prerequisite to the judicial
settlement. CERD is actually the first universal human rights treaty to provide
for an inter-State complaint mechanism (see Articles 11 and 12).
4.44 More precisely, the procedures expressly provided for in the Convention
which must be followed before the ICJ can be seised are as follows:
- first, a State Party alleging that another State Party does not comply with
its obligations under the Convention must address a communication to the latter
through the Committee on the Elimination of Racial Discrimination 231;
- second, the receiving State is given three months to submit written
explanations or statements 232;
- third, if, within six months, the matter is not adjusted to the satisfaction
of both parties, it is to be referred once more to the Committee 233;
- fourth, the Committee ascertains that all domestic remedies have been
exhausted, in conformity with the generally recognized principles of
international law 23;
231
Article 11, para. 1, two first sentences: ―If a State Party considers that another State Party
is not giving effect to the provisions of this Convention, it may bring the matter to the
attention of the Committee. The Committee shall then transmit the communication to the
State Party concerned.‖
232
Article 11, para. 1, third sentence: ―Within three months, the receiving State shall submit
to the Committee written explanations or statements clarifying the matter and the remedy, if
any, that may have been taken by that State.‖
233Article11, para. 2: ―If the matter is not adjusted to the satisfaction of both parties, either by
bilateral negotiations or by any other procedure open to them, within six months after the
receipt by the receiving State of the initial communication, either State shall have the right to
refer the matter again to the Committee by notifying the Committee and also the other State‖.
234Article 11, para. 3: ―The Committee 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 in the case, in conformity with the generally recognized
principles of international law‖. 108
- fifth, if this is the case, there will be appointed an ad hoc Conciliation
235
Commission ;
- sixth, the Conciliation Commission submits to the Chairman of the
Committee a report embodying its findings and containing recommendations for
the amicable solution of the dispute 236;
- seventh, the States parties to the dispute inform the Chairman of the
Committee whether or not they accept the recommendations of the Conciliation
Commission 23;
- eighth, the report and the declarations of the States Parties concerned are
transmitted to the other States Parties to the Convention 23;
- ninth, the dispute can be referred to the Court if all the previous stages
239
have proved fruitless
4.45 The general philosophy of the mechanism provided for by the Convention
is patently of a conciliatory nature: the emphasis upon ―bilateral negotiations‖
(Article 11(2)), ―good offices‖ and ―amicable solutions‖ (Article 12(1)(a))
235Article12, para. 1 (a): ―After the Committee has obtained and collated all the information it
deems necessary, the Chairman shall appoint an ad hoc Conciliation Commission (hereinafter
referred to as the Commission) comprising five persons who may or may not be members of
the Committee‖.
236Article 13, para. 1: ―When the Commission has fully considered the matter, it shall prepare
and submit to the Chairman of the Committee a report embodying its findings on all questions
of fact relevant to the issue between the parties and containing such recommendations as it
may think proper for the amicable solution of the dispute‖.
237Article 13, para. 2: ―These States shall, within three months, inform the Chairman of the
Committee whether or not they accept the recommendations contained in the report of the
Commission‖.
238
Article 13, para. 3: ― [T]he Chairman of the Committee shall communicate the report of
the Commission and the declarations of the States Parties concerned to the other States Parties
to this Convention‖
239
Article 22. 109
indicates that this particular inter-State procedure was designed in such a way as
to facilitate dialogue, with the Committee‘s mediation.
(ii) The travaux préparatoires
4.46 The mandatory character of the inter-State mechanism before seisin of the
Court is confirmed by the travaux préparatoires. The preliminary draft of the
Sub-Commission 240provided already for a committee whose mission would be
to receive periodical reports but also to serve as a conciliation body in an inter-
State complaint procedure. 241 The sponsors of the implementation measures
were much concerned with obtaining agreement for the creation of this
monitoring and conciliation body whose competence would be mandatory. To In
their view, this was vital if the Convention were to become effective and not a
merely hortatory instrument, as evidenced by one of the main sponsors‘
declarations:
Mr Garcia (Philippines): ―[H]is delegation wondered whether the
Convention in its present form [i.e. absent the part on implementation]
was very different from the United Nations Declaration on the
Elimination of All Forms of Racial Discrimination adopted by the General
Assembly in 1963 (...). The Convention would acquire meaning and
substance only if it was accompanied by effective measures on
implementation; such measures were the very core o242he instrumentum
and without them it would remain a dead letter.‖
4.47 The mechanism of inter-State complaints raised some objections, since
some States feared its political misuse:
240Supra, para. 4.16.
241UU.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1344th meeting, U.N. Doc. A/C.3/SR.1344 (16 November 1965), p.314, paras. 14-22. Annex
10.
242
Ibid., p.315, para. 27. 110
Mr. Pant (India): ―His delegation was not opposed in principle to the
establishment of some machinery to deal with disputes between States; it
was to be feared however, that States might resort to that organ less in
order to succour the oppressed than to pursue political ends. Furthermore,
the question arose how an ad hoc, non-judicial committee could exercise
243
judicial functions . If two States wished in good faith to settle their
differences, it will always be open to them to adopt the process of agreed
conciliation‖ 244.
States were nevertheless willing to accept this risk in order to ensure the full
effectiveness of the Convention. In the words of one delegate:
Mrs. Ramaholimihaso (Madgascar): ―The third proposal, which deserved
even closer attention, envisaged the filing of complaints by one State
Party against another- a possibility to which no State should object in the
interest of ensuring better protection of human rights and fundamental
freedoms. The texts before the Committee appeared to offer sufficient
245
safeguards against cases of abuse for political purposes.‖
4.48 The mechanism provided for by the Convention was intended to be at the
same time restrictive and flexible: restrictive in its mandatory character and the
temporal framing of the procedure, flexible through the role it gives to the
Parties to the dispute. In establishing the conciliation procedure, the drafters
sought thus both to preserve the Convention‘s efficiency and to respond to the
States‘ reluctance to be bound by too restrictive a mechanism. This is what may
be distilled from the discussions in the Third Committee.
243
It must be stressed that the final formula did not provide for a committee with a judicial
function, but a conciliation one.
244U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1346th meeting, U.N. Doc. A/C.3/SR.1346 (17 November 1965), p.331, para. 21. Annex 12.
245
U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1345th meeting, U.N. Doc. A/C.3/SR.1345 (17 November 1965), p.326, para. 34. Annex 11. 111
4.49 Mr. Lamptey (Ghana) emphasized that the conciliation commission
should be beyond any doubt as to partiality:
―Introducing his delegation‘s amendments (...) to the Philippine draft (...),
he said that the committee (...) elected by States Parties to the Convention,
which would be responsible for receiving reports from States and
overseeing the effective application of the Convention, would not be
sufficiently independent and impartial to be able to serve as a conciliation
body in the event of a dispute between parties. (...). It had therefore been
considered wiser to provide for the creation, on an ad hoc basis, of a
conciliation commission of relative impartiality, by the unanimous
consent of the parties to the dispute, with the assistance of the chairman of
the committee of plenipotentiaries. (...) For similar reasons, article VI
provided that, when any matter arising out of article III was being
considered by the Committee, the Governments in question should (...) be
entitled to send a representative to take part in the proceedings of the
committee, but without voting rights. Article VII contained provisions
designed to ensure the impartiality of the members of the conciliation
commission, who were not to be nationals of the States parties to the
246
dispute.‖
4.50 When the articles concerning the inter-State procedure were specifically
discussed by the Third Committee, the idea of an inter-State conciliation
procedure had been already accepted. The principle was not contested and the
amendments submitted under what would become Articles 11 to 13 either
concerned the exhaustion of domestic remedies or details concerning the
247
procedure to be followed by the conciliation commission .
246
U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1344th meeting, U.N. Doc. A/C.3/SR.1344 (16 November 1965), p.316, para. 40. Annex 10.
247
U.N. General Assembly, 20th session, Official Records, Annexes, Report of the Third
Committee, U.N. Doc. A/6181 (18 December 1965), pp. 27-29, paras. 118-143. Annex 23. 112
(iii) The practice of States before the CERD Committee
4.51 To date, the Committee has never been seised of a matter under Article 11
of CERD. Nevertheless, this does not mean that it has not been seised of inter-
State complaints at all; rather, these have been made under the guise of the
Article 9 procedure imposing on States Parties an obligation to submit, ―for
consideration by the Committee, a report on the legislative, judicial,
administrative or other measures which they have adopted and which give effect
to the provisions of this Convention‖, ―one year after the entry into force of the
Convention for the State concerned; and thereafter every two years and
whenever the Committee so requests‖.
4.52 While some Committee members have been reluctant to accept this use of
248
Article 9 , the practice is now well-established: faced with a situation where
the State Party cannot complain under Article 11 because the putative defendant
is not a State Party to the Convention, the Committee has decided to take up the
249
question under Article 9, and this has always resulted in a decision ; but, when
both concerned States are parties to the Convention, the Committee has
250
discussed the issue but has refused to take a formal decision , and it has
248
The Russian Federation does not take any position as to the legality or advisability of such
use of Article 9.
249Panama (in relation with the Panama Canal Zone): Decision 3 (IV) of 26 August 1971,
CERD Annual Report, GAOR, 1971, A/8418, p.34. Syria (in relation with the Golan
Heights); Decision 4 (IV) of 30 August 1971, idem., endorsed by the GA in A/RES/2784
(XXVI) of 6 December 1971. Cyprus: Decision 3(XI) of 8 April 1975, CERD Annual Report,
GAOR, 1975, A/10018, p.69. Some authors consider that the Committee has ―thus far wisely
eschewed restrictive and formalistic interpretations which would have forclosed the gradual
development of a meaningful reporting system‖ (T. Buergenthal, ―Implementing the UN
Racial Convention‖, 12 Texas International Law Journal, 1977, pp. 187-221, at p.218).
250
Syria (in relation with the Golan Heights), CERD Annual Report, GAOR, 1984, A/39/18,
pp. 47-50, para. 209-211. Democratic Kampuchea (in relation with Vietnam), CERD Annual
Report, GAOR, 1987, A/42/18, pp. 92-93, para. 436-442, or p.97, para. 447. Austria (in 113
reminded the States Parties of the difference between the reporting and the inter-
251
State procedures in a General Recommendation . Two conclusions may be
drawn from this practice:
a. even though it has never been used so far, the procedure set forth in
Article 11 of the Convention is by no means obsolete and Georgia could
have resorted to it, had it really considered that Russia was in breach of
the Convention;
b. while the use of Article 9 as a means of complaining of such a violation
may not have resulted in a formal decision, the fact is that, in contrast to
several States on other occasions, Georgia has apparently not even
thought of using this procedure to put forward its alleged dispute with
Russia.
relation with the situation in the former Yugoslavia, CERD Annual Report, GAOR, 1992 ,
A/47/18, p.49, para. 187; p.50, para. 196.
251
See General recommendation XVI (42) concerning the application of article 9 of the
Convention, 19 March 1993:
―1. Under article 9 of the International Convention on the Elimination of All Forms of Racial
Discrimination, States parties have undertaken to submit, through the Secretary-General of
the United Nations, for consideration by the Committee, reports on measures taken by them to
give effect to the provisions of the Convention.
2. With respect to this obligation of the States parties, the Committee has noted that, on some
occasions, reports have made references to situations existing in other States.
3. For this reason, the Committee wishes to remind States parties of the provisions of article 9
of the Convention concerning the contents of their reports, while bearing in mind article 11,
which is the only procedural means available to States for drawing to the attention of the
Committee situations in which they consider that some other State is not giving effect to the
provisions of the Convention‖
U.N. General Assembly, 48th session, Official Records, Supplement No.18, Report of the
Committee on the Elimination of Racial Discrimination, U.N. Doc. A/48/18 (15 September
1993), p.116. Annex 30. 114
4.53 Georgia‘s failure to notify the Committee of alleged violations of the
Convention allegedly taking place in its own territory in its periodical reports
(during the whole period since it has become a Party to the Convention, as
Georgia alleges that the ―dispute‖ has lasted for 17 years) is all the more
revealing in that it has not hesitated to complain to the Committee of the
deportation of ethnic Georgians from Russia in 2006. In conformity with its
usual practice, the Committee discussed the matter under Article 9 and made
appropriate recommendations 252.
4.54 At present, the panoply of procedures before the Committee also includes
the early-warning and urgent mechanism instituted to face serious, mass
253
crises. This procedure is obviously intended to respond to grave crises of
racial discrimination for which the situation in the former Yugoslavia was the
catalyst. At its 45th session in 1994, the Committee decided that preventive
measures, including early warning and urgent procedures, should become part of
its regular agenda. Several measures can be taken by the Committee under this
new procedure:
―When receiving information between sessions of CERD about grave
incidents of racial discrimination covered by one or more of the relevant
indicators, the Chairperson of the working group on early warning/urgent
action, in consultation with its members and with the follow-up
coordinator and the Chairperson of the Committee, may take the
following action:
1. Request further urgent information from the State party.
252Committee on the Elimination of Racial Discrimination, 73rd session, Consideration of
reports submitted by States Parties under Article 9 of the Convention, Concluding
Observations of the Committee on the Elimination of Racial Discrimination: Russian
Federation, U.N. Doc. CERD/C/RUS/CO/19 (20 August 2008), para. 13. Annex 70.
253
U.N. General Assembly, 48th session, Official Records, Supplement No.18, Report of the
Committee on the Elimination of Racial Discrimination, U.N. Doc. A/48/18 (15 September
1993). Annex 30. 115
2. Forward the information to the Secretary-General and his Special
Adviser on the Prevention of Genocide.
3. Prepare a decision to be submitted for adoption by the Committee at its
next session.
4. Adopt a decision at the session in the light of the most recent
developments and action taken by other international organizations‖ 254.
4.55 As aptly explained by Mr. Régis de Gouttes, former chairman of the
255
Committee, in an interview for Human Rights and Local Governments :
―Une nouvelle fonction que nous avons en quelque sorte inventée, c‘est la
procédure dite de situations d‘urgence ou de prévention et d‘action
d‘urgence. C‘est en 1993 que notre comité a institué cette procédure,
après avoir constaté qu‘il n‘avait pas suffisamment su analyser à l‘avance
les phénomènes qui allaient se passer dans la région de l‘ex-Yougoslavie.
Face à la crise, nous avons fait une sorte d‘examen rétrospectif des
rapports que nous avions étudiés auparavant et nous nous sommes aperçus
qu‘il y avait des indices de naissance de ce conflit et nous nous sommes
dit qu‘à l‘avenir il fallait inventer une procédure d‘alerte rapide dans des
cas où nous décelons des indices de discrimination massive, de crise
256
grave‖ .
254
Report of the Committee on the Elimination of Racial Discrimination, 3 October 2005,
U.N. Doc. A/60/18(SUPP), p.12.
255An association of French law (Act of 1901), created in 2007; it is a permanent structure
based in Nantes (France). See: http://www.spidh.org/en/home/index.html.
256 st
Video interview of Mr. Régis de Gouttes, 1 Lawyer at the French Court of Cassation
(France), chairman of the Committee of the United Nations for the Elimination of Racial
Discrimination, July 2006, available: http://www.spidh.org/en/documentation/videos/mr-
regis-de-gouttes/index.html.
Translation: ―A new function was somewhat invented by the Committee: it is the early-
warning and urgent procedure. It was instituted in 1993, when the Committee realized that it
had not known how to analyze the phenomena that were about to happen in the region of the
former Yugoslavia. Faced with the crisis, we conducted a sort of retrospective examination of
the reports we had already considered and we understood that there were indicia of the
outbreak of the conflict and we agreed that we needed to set up an early-warning procedure in
those cases where we detected a pattern of massive discrimination or a serious crisis.‖ 116
This early-warning procedure can be activated by the States Parties, through the
submission of information to the Committee. This information can be contained
in a periodical report or addendum thereto in which the State draws the
Committee‘s attention to the urgent aspect of a matter or the serious nature of a
case of discrimination. Under this procedure, the Committee can either engage
257
in exchanges with the State Party concerned or adopt decisions .
4.56 To sum up, it is significant that Georgia has abstained from bringing the
matter before the Committee under Article 11, the legal procedure referred to in
Article 22; nor has it mentioned in any of its Reports to the Committee under
Article 9 any breach of the Convention by Russia, allegedly taking place in
Abkhazia or South Ossetia; and nor has any urgent procedure ever been
activated by Georgia.
B. THE CONDITIONS IN ARTICLE 22 OF CERD ARE CUMULATIVE
4.57 As discussed above, Article 22 of CERD subordinates the seisin of the
Court to two distinct conditions: previous negotiation and the use of the
procedures expressly provided for in this Convention (―the CERD mechanism‖).
The purpose of this subsection is to focus on the use of the conjunction ―or‖ in
the enumeration of the two prior means of settlement (―which is not settled by
negotiation or by the procedures expressly provided for in this Convention‖).
This phrase is not correctly interpreted as meaning ―which is not settled either
by negotiation or by the procedures expressly provided for in this Convention‖:
neither the terms of the phrase (a) nor the drafting history of the Convention (b)
support such an interpretation. This conclusion is further confirmed by a
257For an overview of this procedure, see: http://www2.ohchr.org/english/bodies/cerd/early-
warning.htm#about. 117
comparison with other universal human rights treaties providing for monitoring
mechanisms (c).
1. Textual interpretation
4.58 Article 22 establishes under what circumstances a dispute under CERD
can be referred to the Court: it is a dispute that could not previously be settled by
the Parties. At the same time, Article 22 also establishes the means available to
the Parties to attempt to settle the dispute: negotiation and the CERD
mechanism. Negotiation comes naturally first in order since it is the ordinary
way of settling disputes in international law 25. Should this procedure fail, the
Convention opens another possibility, and that is the recourse to ―the procedures
expressly provided for in [the] Convention‖ – i.e. in Articles 11 and 12 (that is
the CERD mechanism).
4.59 Here, the conjunction ―or‖ does not express alternatives but rather
cumulative conditions. While the natural conjunction to express accumulation is
―and‖ introducing an ―and‖ in Article 22 would render the phrase grammatically
meaningless: if the dispute is settled by negotiation, there is no room for
settlement ―by the procedures expressly provided for in this Convention‖; and,
if, vice versa, the negotiation has failed, then the only means of settlement will
be the procedures in question. The dispute has to be settled by negotiation or by
the treaty procedures – not by both; not ―by negotiation and by the procedures
expressly provided for in this Convention‖: this would simply make no sense.
But, at the same time, it is meaningful to refer to both means of settlement
successively: if the negotiation fails, then the dispute can still be settled by the
Convention procedures.
258See above, paras. 4.27-4.28. 118
4.60 The phrase in Article 22 must actually be read as implying successive
steps: the parties must have held negotiations (step 1). Failing this, they must
have activated the inter-State complaint procedure (step 2). Only the failure of
both these steps allows the parties to seise the Court. Negotiation is in any case a
passage obligatoire at two junctures: it is expressly provided for in Article 22 as
preliminary to the CERD procedures, and it constitutes an integral part of the
Committee‘s inter-State procedure. In other words, States must make their best
efforts to settle their dispute ―by negotiation‖ and ―by the procedures expressly
provided for‖ by the Convention.
4.61 It is to be noted that the Court will always depart from a supposed literal
interpretation when it proves meaningless in the context of the instrument to be
interpreted and when the contextual interpretation suggests otherwise. Thus in
the Advisory Opinion of 9 July 2004, Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, the Court had to clarify the
meaning of Article 2, paragraph 1, of the International Covenant on Civil and
Political Rights which provides:
―Each State Party to the present Covenant undertakes to respect and to
ensure to al1 individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.‖
The conjunction ―and‖ was especially important for determining the scope of the
Convention. As the Court acknowledged:
―This provision can be interpreted as covering only individuals who are
both present within a State's territory and subject to that State's
jurisdiction. It can also be construed as covering both individuals present
within a State's territory and those outside that territory but subject to that 119
State‘s jurisdiction. The Court will thus seek to determine the meaning to
be given to this text.‖259
Relying on the authoritative interpretation given by the Human Rights
Committee and on the travaux préparatoires, the Court came to the conclusion
260
that, in this context, ―and‖ expresses alternative conditions .
4.62 Conversely, in the present instance, the use of the conjunction ―or‖ in
Article 22 of the Convention expresses, given its object and purpose, cumulative
conditions which are both prerequisites to the seisin of the ICJ. Therefore,
Article 22 means that a dispute can be referred to the Court only if attempts have
been made with regard to the use of both of the means indicated in this
provision.
2. The travaux préparatoires
4.63 The travaux préparatoires confirm that, as negotiations 261, the CERD
mechanism must also be utilized before seising the Court. As shown by the
initial proposal which led to the adoption of Article 22 and the further
discussions 262, the provisions concerning the CERD machinery, on the one hand,
and the Court‘s jurisdiction, on the other hand, must be read together. They lay
down successive steps for the implementation of the Convention: direct
negotiation, reference to the Committee and to its ad hoc Commission of
conciliation, and then, if the previous means have failed, the ICJ.
259I.C.J., Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, Rep. 2004, p.179, para. 108.
260Idem, pp. 179-180, paras. 109-111.
261Supra, paras. 4.27-4.41.
262
See infra, paras. 4.65- 4.67. 120
4.64 All the implementation articles (negotiation / Committee procedures and
ICJ jurisdiction) were initially considered together as part of a single text by the
Sub-Commission and the Commission of Human Rights. It was only during the
final review of the text by the Third Committee that they were split into two
different sections of the Convention, without this purely formal reorganisation
having any consequence as to the meaning of the provisions in question.
a) Sub-Commission on Prevention of Discrimination and Protection of
Minorities
263
4.65 In the initial proposition of Mr. Inglés concerning the Measures of
implementation, the provision concerning the ICJ came just after the articles
concerning the Committee machinery. The Court was to be seised if ―no
solution has been reached‖ through the Convention‘s mechanism:
―Article 16: The States Parties to this Convention agree that any State
Party complained of or lodging a complaint may, if no solution has been
reached within the terms of article 13, paragraph 1, bring the case before
the International Court of Justice, aft264the report provided for in article
13, paragraph 3, has been drawn up‖ .
Mr. Inglés explained that a conciliation procedure between the States would be
better suited to address human rights questions; it is only in case this failed that
the States could have recourse to the ICJ:
―Under the proposed procedure, States Parties to the convention should
first refer complaints of failure to comply with that instrument to the State
party concerned; it is only when they are not satisfied with the explanation
263As to his role on the elaboration of the provisions on the implementation of the
Convention, see above, para. 4.16-4.18.
264
U.N. Economic and Social Council, Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, Report of the Sixteenth Session of
the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the
Commission on Human Rights, U.N. Doc. E/CN.4/873, E/CN.4/Sub.2/241 (11 February
1964), p.57. Annex 5. 121
of the State Party concerned that they may refer the complaint to the
Committee. Direct appeal to the International Court of Justice, provided
for in both the Covenants on Human Rights and the UNESCO Protocol,
was also envisaged in his draft. But he proposed the establishment of a
Conciliation Committee because the settlement of disputes involving
human rights did not always lend themselves to strictly judicial
procedure. The Committee, as its name implied, would ascertain the facts
before attempting an amicable solution to the dispute. Application could
be made to the Committee, through the Economic and Social Council, for
an advisory opinion from the Court on legal issues. If the Committee
failed to effect conciliation within the time allotted, eith265of the Parties
may take the dispute to the International Court of Justice‖ .
b) Commission on Human Rights
4.66 As explained above 266, the proposal of the Philippines expert could not be
discussed within the Sub-Commission. Mr. Quiambao (Philippines) insisted
upon the conciliatory mechanism proposed by the Convention and explained
that it was only following a failure of that mechanism that the Parties to the
dispute could have recourse to the Court:
―That preliminary draft [speaking of Mr. Inglés proposition] provided in
particular for the establishment of a good offices and conciliation
committee consisting of eleven members, which would be responsible for
seeking the amicable settlement of disputes between States parties
concerning the interpretation, application or fulfilment of the convention.
A State party which considered that another State party was not giving
effect to the provisions of the convention would be able to bring the
matter to the attention of that state by written communication. If after six
months the matter was not adjusted to the satisfaction of both States,
either State would have the right to refer the matter to the Committee. In
265U.N. Economic and Social Council, Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, Summary record of the 427th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.427 (12 February 1964), p.12, emphasis added. Annex
6.
266See above, para. 4.16. 122
the event of no solution being reached, the States would be free to appeal
to the International Court of Justice‖ 267.
c) Third Committee of the General Assembly
4.67 In the Third Committee, the implementation measures (CERD mechanism
and ICJ) were split into two different sets of provisions for several reasons:
- first, for editorial reasons: the drafters decided to harmonize the final
clauses with those of other conventions. Thus the Secretariat of the Sub-
Commission was asked to prepare a handbook on final clauses 268. All the
relevant instruments contained reference to the Court in their final clauses. The
Committee agreed to follow that example 26. However, the final formulation was
to be adjusted according to the results of the negotiations concerning the
Committee. The quid pro quo was that if the CERD mechanism was accepted,
then recourse to the Court was to be subjected to the conciliatory phase. This is
270
what the Ghana amendment aimed to achieve and it is only because it
271
achieved that balance that it was finally accepted. The Committee, on the
other hand, was considered as central for the implementation of the Convention,
267
U.N. Economic and Social Council, Commission on Human Rights, Summary record of
the 810th Meeting, U.N. Doc. E/CN.4/SR.810 (15 May 1964), p.7, emphasis added. Annex 8.
268U.N. Economic and Social Council, Commission on Human Rights, Draft International
Convention on the Elimination of All Forms of Racial Discrimination Final Clauses, Working
Paper prepared by the Secretary-General, U.N. Doc. E/CN.4/L.679 (17 February 1964).
Annex 7.
269U.N. General Assembly, 20th session, Official Records, Annexes, Report of the Third
Committee, U.N. Doc. A/6181 (18 December 1965), p.35, paras. 173-174. Annex 23.
270U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1367th meeting, U.N. Doc. A/C.3/SR.1367 (7 December 1965), p.453, para. 29. Annex 19.
271
Ibid., p.454, paras. 38-39. 123
given its human rights nature, and that is why the provisions concerning the
272
Committee are part of the corpus of the Convention;
- second, in all likelihood, this was a strategical move on the part of the
negotiators to split two difficult questions: that of the establishment of the
Committee on the one hand and that of the acceptance of the Court‘s jurisdiction
on the other hand 273. Indeed, the establishment of the Committee and the Court‘s
jurisdiction seemed difficult to obtain separately, and even more so together.
The first because of its innovative character 274, the second mainly due to the
reluctance of some States to accept the Court‘s jurisdiction and also due to a
misconception regarding the compulsory jurisdiction and the compromissory
275
clause . Ghana, Mauritania and the Philippines, as the main sponsors of the
implementation articles, strived to obtain the inclusion of the Committee
276
mechanism, which appeared of paramount importance to them ; in a first
phase, the three sponsoring States envisaged that the Court‘s jurisdiction should
be subject to the conclusion of a compromis, whether the question was dealt
272
See UK‘s representative statementU.N. General Assembly, 20th session, Official Records,
Third Committee, Record of the 1363rd meeting, U.N. Doc. A/C.3/SR.1363 (3 December
1965), p.431, para. 3. Annex 18.
273
See i.e. the declarations of the representative of Ghana: U.N. General Assembly, 20th
session, Official Records, Third Committee, Record of the 1349th meeting, U.N. Doc.
A/C.3/SR.1349 (19 November 1965), p.348, para. 29 (Annex 14); U.N. General Assembly,
20th session, Official Records, Third Committee, Record of the 1354 meeting, U.N. Doc.
A/C.3/SR.1354 (25 November 1965), p.379, para. 54 (Annex 16).
274
U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1346th meeting, U.N. Doc. A/C.3/SR.1346 (17 November 1965), p.330, para. 12. Annex 12.
275U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1358th meeting, U.N. Doc. A/C.3/SR.1358 (29 November 1965), p.399, paras. 20-22 (Annex
17); U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1367th meeting, U.N. Doc. A/C.3/SR.1367 (7 December 1965), p.453, paras. 28-32 (Annex
19).
276
U.N. Economic and Social Council, Commission on Human Rights, Summary record of
the 810th Meeting, U.N. Doc. E/CN.4/SR.810 (15 May 1964), p.7. Annex 8. 124
277
with or not by the future Committee . However, since the sponsors obtained
the establishment of a Committee with compulsory competence, and insisted
that the Polish amendment (which required a compromis for the Court‘s
jurisdiction) be rejected, they introduced in Article 22 the phrase ―or by the
procedures expressly provided for in this Convention‖. And this had the desired
effect: by the addition of this phrase, the drafters obtained and combined at one
and the same time (i) the compulsory jurisdiction of CERD and (ii) that of the
ICJ.
4.68 It was the Third Committee that actually drafted the compromissory
clause. The course of the negotiation can briefly be described as follows:
278
- The Philippines reindorsed the Commission‘s propositions .
- Ghana initially proposed an amendment providing only for a seisin of the
Court by a special agreement:
―Within their common consent the parties to a dispute arising out of the
interpretation or the application of the Convention, whether it has been
dealt with by the Commission of Conciliation or not, may submit the
dispute to the International Court of Justice.‖ 279
277U.N. General Assembly, 20th session, Official Records, Annexes, Third Committee,
Ghana: revised amendments to document A/C.3/L.1221, U.N. Doc. A/C.3./L.1274/REV.1 (12
November 1965). Annex 9.
278
U.N. General Assembly, 20th session, Official Records, Annexes, Third Committee,
Phillipines: proposed articles relating to measures of implementation, U.N. Doc.
A/C.3/L.1221 (11 October 1965), Articles 18 and 19. Annex 21.
279
U.N. General Assembly, 20th session, Official Records, Annexes, Third Committee,
Ghana: revised amendments to document A/C.3/L.1221, U.N. Doc. A/C.3./L.1274/REV.1 (12
November 1965). Annex 9. 125
- A working group was constituted to re-draft the implementation articles (with
the assistance of the Secretariat). The text of the working group was thus
drafted:
―Any dispute between two or more States Parties with respect to the
interpretation or application of this Convention, which is not settled by
negotiation, shall at the request of any party to the dispute, be referred to
the International Court of Justice for decision, unless the disputants agree
to another mode of settlement.‖ 280
- At this late stage, amendments were submitted by Ghana and the Philippines
on one side and by Poland on the other side.
―The amendment of Poland (A/C.3/L.1272) sought to replace the word
‗any‘ after the words ‗at the request of‘ by the word ‗all‘.
The amendment of Ghana, Mauritania and Philippines (A/C.3/L.1313)
called for the deletion of the comma after ‗negotiation‘ 281 and the
insertion of the following between the words ‗negotiation‘ and ‗sh282‘: ‗or
by the procedures expressly provided for in this Convention‘‖ .
4.69 The opposing trends in the Third Committee, as illustrated by the
proposed amendments, reveal the reluctance of many States to accept the
Court‘s jurisdiction. In fact, one group sought to subordinate this to the
acceptance of all the parties to a dispute by compromis (cf. the Polish
amendment), while an opposing group tried to preserve the possibility of
unilateral seisin of the Court introducing the conciliation phase in the
compromissory clause (cf. the Ghanaian amendment):
280
U.N. General Assembly, 20th session, Official Records, Annexes, Report of the Third
Committee, U.N. Doc. A/6181 (18 December 1965), p.38. Annex 23.
281The deletion of the comma suggests that the phrases describe successive phases and not
alternatives.
282
U.N. General Assembly, 20th session, Official Records, Annexes, Report of the Third
Committee, U.N. Doc. A/6181 (18 December 1965), p.38. Annex 23. 126
―Mr. Lamptey (Ghana) said that the Three-Power amendment was self-
explanatory. Provision has been made in the draft Convention for
machinery which should be used in the settlement of disputes before
recourse was had to the International Court of Justice. The amendment 283
simply referred to the procedures provided for in the Convention‖ .
4.70 It must be underlined that the amendment of Ghana, Mauritania and the
Philippines was adopted unanimously. All the States present therefore
considered that the CERD mechanism had to be exhausted before recourse was
made to the Court. It was on this basis that Clause VIII (which was to become
Article 22 of the Convention), and therefore the Court‘s jurisdiction, was
adopted by 70 votes to 9, with 8 abstentions 284.
4.71 Several statements in the Third Committee are particularly enlightening as
to the meaning and scope of that provision. Some States explained that the
Court‘s seisin was meant to be a last resort, and that the Committee was actually
the natural forum for the settling of inter-State disputes:
―Mr. Garcia (Philippines): Articles 2 to 18 would provide for the
establishment of a good offices and conciliation committee to which
States Parties might complain on grounds of non-implementation of the
Convention, but only after all domestic remedies had been exhausted. If a
solution could not be reached, the Committee would draw up a report on
the facts and indicate recommendations. Eventually the States Parties
could bring the case before the International Court of Justice‖ 285.
―Mr. Mommersteeg (Netherlands): The system of complaints proposed by
the Philippines (A/C.3/L.1221) and Ghana (A/C.3/L.1274/Rev. 1)
provided that, if a matter was not adjusted to the satisfaction of both the
283
U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1367th meeting, U.N. Doc. A/C.3/SR.1367 (7 December 1965), p.453, emphasis added.
Annex 19.
284U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1367th meeting, U.N. Doc. A/C.3/SR.1367 (7 December 1965), p.455, Annex 19.
285
Ibid., U.N. General Assembly Official Records, Third Committee, Record of the 1344th
meeting, U.N. Doc. A/C.3/SR.1344 (16 November 1965), p.314 – emphasis added. Annex 10 127
complaining State and the State complained against, either by bilateral
negotiations or by any other procedure open to them, either State should
have the right to refer the matter to a committee, which in the Philippine
text was a good offices and conciliation committee and in the Ghanian
text a fact-finding committee, conciliatory powers being vested in an ad
hoc commission appointed by the chairman of the committee. Under that
system, the case might be referred to the International Court of Justice as
a last resort; his delegation could not but approve such provision but it
would be effective only if the State complained of or the State lodging a
complaint could submit the dispute to the Court without first having to
286
obtain the consent of the other State‖ .
Notably, no statement was made to the opposite.
4.72 These statements leave no room for doubt if reference is had to the
conventional precedents that inspired the drafters. This is further confirmed by
an analysis of those precedents. Besides the ILO mechanisms (which are of a
rather special character), the drafters of the Convention relied on the mechanism
set up by the Protocol to the Convention against Discrimination in Education
adopted by UNESCO 28. This Protocol establishes that it is only following the
failure of the conciliation commission to resolve the dispute that the door is
opened to the ICJ:
―Any State may, at the time of ratification, acceptance or accession or at
any subsequent date, declare, by notification to the Director-General, that
it agrees, with respect to any other State assuming the same obligation, to
refer to the International Court of Justice, after the drafting of the report
provided for in Article 16, paragraph 3, any dispute covered by this
Protocol on which no amicable solution has been reached in accordance
with Article 17, paragraph 1‖. 288
286
Ibid., p.319 – emphasis added.
287Mr. Caportoti: ―The Commission could also rely on a precedent, one, moreover, on which
Mr. Inglés had based his proposal: the Protocol to the Convention against Discrimination in
Education adopted by UNESCO‖ (E/CN.4/Sub.2/SR.428, p.6).
288
Protocol Instituting a Conciliation and Good offices Commission to be Responsible for
Seeking the settlement of any Disputes which may Arise between States Parties to the
Convention against Discrimination in Education, 10 December 1962, Article 25. 128
3. Other universal human rights treaties providing for monitoring
mechanisms
4.73 The CERD Committee is outstanding among the monitoring bodies
established by universal human rights treaties. The first of its kind, it was
considered a forerunner, an example for all the others. As such, it presents
undeniable similarities with all of the other bodies. In addition, it is one of a
kind, since it provides for a mandatory inter-State complaint procedure. Table 2
289
appended to this Chapter presents, in synthesis, the similarities and
differences of all the monitoring bodies under the universal human rights
treaties, as regards the inter-State complaint procedure. Table 2 equally
incorporates the compromissory clauses of these treaties, in order to determine
the possible relation between the monitoring body and the Court, as organs
designed for the Conventions‘ implementation.
4.74 Several treaties allow for an optional system of inter-State complaints.
The facultative nature of those mechanisms results from the necessity of a
special declaration through which the State accepts this procedure: this is the
290
case for the International Covenant on Civil and Political Rights (ICCPR) , the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
291
or Punishment (CAT) , the International Convention on the Protection of the
292
Rights of All Migrant Workers and Members of Their Families (CMW) and
the International Convention for the Protection of All Persons from Enforced
289
Table 2, Implementation Mechanisms in Universal Human Rights Treaties, p.178
290See Article 41.
291
See Article 21.
292
See Article 76. 129
293
Disappearance (CED) . But CERD is the only universal human rights treaty
establishing a mandatory inter-State complaint procedure. No special acceptance
of the procedure is required from the States: the ratification of the Convention
automatically implies the acceptance of the inter-State procedure. In terms of
implementation measures, the Convention is certainly the most elaborate
project, never subsequently equalled, as shown in Table 2 appended at the end
of the present Chapter. No subsequent human rights treaty provides for an inter-
State conciliation mechanism that all the States Parties to the convention would
accept through simple ratification. This means that all 173 States parties to
CERD are equally parties to the inter-State complaint mechanism 294. Accepting
that such a constraining mechanism could be ignored and that a State can seise
the ICJ without having first complied with its requirements would effectively
eliminate this unique aspect of CERD.
4.75 Together with the competence of the monitoring body to receive inter-
State complaints, three conventions (other than CERD) equally provide for the
295 296 297
unilateral seisin of the International Court of Justice : CAT , CMW and
293See Article 32.
294
By way of comparison:
- for ICCPR, there are 48 States that made the declaration under Article 41 (out of 165 States
parties);
- for CAT, 69 States made the declaration under Article 21 (out of 146 States parties);
- for CMW, out of 42 States parties, none made the declaration under Article 76;
- for CED, out of 16 States parties, 5 made the declaration under Article 32 (the Convention is
not yet in force).
295ICCPR does not have an ICJ compromissory clause.
296
See Article 30.
297See Article 92. 130
298
CED . As regards the treaties that have a monitoring body whose competence
does not extend to receiving inter-State complaints, CEDAW is the only one to
299
have an ICJ compromissory clause .
4.76 A reading of the compromissory clauses of these treaties makes apparent
that they always provide for a three steps procedure. First, they all contain the
―negotiation‖ prerequisite. Second, they all provide for an arbitration should the
negotiations fail, except for CERD which alone introduces ―the procedures
expressly provided for in the Convention‖ in its compromissory clause. Third, in
all these treaties (CERD, CAT, CMW, CEDAW and CED), the seisin of the
Court appears at the end of the line, after the other means have failed.
4.77 The difference among these treaties is only found, therefore, in the second
stage: CERD provides for a conciliation procedure, while the others provide for
mandatory arbitration. The fact that CERD does not provide for arbitration
previous to the seisin of the Court cannot be interpreted as a form of liberalism
with regard to the Court‘s jurisdiction. The analysis of the travaux préparatoires
demonstrates that no such intent can be attributed to the drafters 300. It is because
CERD drafters included a mandatory conciliation procedure under the auspices
of the Committee that a reference to arbitration in the compromissory clause
became superfluous. Conversely, it is because the drafters of the subsequent
human rights treaties did not include a mandatory conciliation procedure that
they introduced the reference to arbitration in the compromissory clause.
298See Article 42.
299The International Covenant on Economic, Social and Cultural Rights, the Convention on
the Rights of the Child and the Convention on the Rights of Persons with Disabilities do not
include a procedure to address inter-State complaints.
300
See above, paras. 4. 63-4. 72. 131
4.78 The Court had already had the occasion to confirm the mandatory
301
character of these previous stages, in respect of the condition of arbitration .
For instance, in the Armed Activities (2002) case, the Court has already stressed
302
upon the compulsory character of the attempt at arbitration under CEDAW , as
it equally did, on a prima facie basis, in Questions relating to the Obligation to
303
Prosecute or Extradite case, when interpreting Article 31 of CAT . The same
conclusion must apply in the case of the conciliation procedure provided by
CERD 304.
4.79 The previous seisin of the Committee, under the mandatory inter-State
conciliation mechanism of Articles 11 and 12 of CERD, has to be ascertained by
the Court in order to establish its jurisdiction under Article 22 CERD. As with
the arbitration condition in other universal human rights treaties, the Applicant
must provide proof of having made a bona fide attempt to initiate the
conciliation procedure. Absent any such attempt, any inquiry into the
effectiveness of the conciliation procedure without object. As shown below,
Georgia has not made any such attempt.
301See Table 1, Compromissory clauses providing for prerequisites to the Court‟s seisin,
appended, p.173.
302
I.C.J., Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), Rep. 2006, pp. 38-39, para. 87.
303ICJ, Order, 28 May 2009, Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Provisional Measures, paras. 51-52.
304
In its Memorial, Georgia relies on Lockerbie (at p.304, para. 8. 28). But article 14(1) of the
Montreal Convention also provides for a clear step-by-step procedure. Like under Article 22
of CERD, the seisin of the Court only comes at the end of the line, after a number of
successive steps have been taken and after the other means have failed. And, as Georgia itself
acknowledges (GM, p.305, para. 8. 30), in the Lockerbie case, the Court did not refrain from
determining whether the procedural conditions of Article 14(1) of the Montreal Convention
had been fulfilled; and only afterwards it affirmed its jurisdiction. 132
4.80 Furthermore, CERD relies upon a permanent committee as the primary
guardian of the Convention. By-passing the conciliation mechanism provided in
the Convention could have an impact that the violation of the arbitration
requirement does not otherwise have: it may undermine the authority of the
permanent organ established to preserve and enhance CERD‘s efficiency.
Section II. The conditions for the seisin of the Court are not fulfilled
4.81 The negotiations and the use of the procedures provided for in CERD
prior to the seisin of the Court are important barometers to ascertain the
existence or otherwise of a dispute, and that importance has been referred to in
Chapter III of these Preliminary Objections. Moreover, under the Convention
regime, they also serve as essential procedural prerequisites to the Court‘s
jurisdiction.
4.82 The ―negotiation / CERD procedures‖ condition is more than a formalistic
condition 30. As noted in Chapter III above, in its 2008 Judgment in the
Genocide case (Croatia v. Serbia), the Court explained the rationale for possible
exceptions to the general rule of fulfilment of jurisdictional conditions at the
date of the seisin:
―What matters is that, at the latest by the date when the Court decides on
its jurisdiction, the applicant must be entitled, if it so wishes, to bring
fresh proceedings in which the initially unmet condition would be
fulfilled. In such a situation, it is not in the interests of the sound
administration of justice to compel the applicant to begin the proceedings
anew — or to initiate fresh proceedings — and it is preferable, except in
305
See P.C.I.J., Judgment of 30 August 1924, Mavrommatis Palestine Concessions, Objection
to the Jurisdiction of the Court, Series A, N° 2, p.15 or I.C.J., Judgment, 26 November 1984,
Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and Admissibility,
Rep. 1984, pp. 428-429, para. 83. 133
special circumstanc306 to conclude that the condition has, from that point
on, been fulfilled.‖
In addition to the issues raised in Chapter III above, it may also be noted that, to
date, no negotiation process relating to the Convention has been initiated nor has
Georgia launched any CERD procedure.
4.83 It is for Georgia to prove that these conditions are fulfilled and it is
apparent that Georgia has not:
a. the Parties have had no negotiation on the dispute alleged by Georgia;
and
b. Georgia has not used the procedures provided for in CERD.
A. THE PARTIES HAVE NOT HELD ANY NEGOTIATION
ON THE DISPUTE ALLEGED BY GEORGIA
4.84 In order to amount to a ―negotiation‖ over a CERD-related dispute per
se307, the contacts between the Parties to a dispute must expressly refer to the
Convention or to its substantive provisions or, at least, to its object. The relevant
306I.C.J., Judgment of 18 November 2008, Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, para.
85.
307
As shown in Chapter III above, in order to have a ―dispute‖ under the Convention, the
parties must have utilised the CERD Mechanism. 134
308
diplomatic contacts must be prior to the date of the seisin of the Court, and
309
they must relate to the subject-matter submitted to the Court .
4.85 The lack of substance to Georgia‘s contentions on this point were noted
by the seven dissenting Judges during the Provisional Measures phase, who
based their finding that the Court had no jurisdiction on the following
observation:
―Thus, it is not sufficient that there have been contacts between the Parties
(…); these contacts must have been regarding the subject of the dispute,
either the interpretation or application of the Convention. Even so, this
precedent may not be dismissed in the present case, given that the two
compromissory clauses are different, in that Article 29 of the Convention
on Discrimination against Women requires arbitration after negotiation
and before filing suit in the Court. In fact, when it rendered its judgment
on 3 February 2006 on jurisdiction, the Court concluded that Article 29
established cumulative conditions and that it ‗must therefore consider
whether the preconditions on its seisin (...) have been satisfied in this
case‘ (Armed Activities on the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the
Court and Admissib310ty of the Application, Judgment, ICJ Reports 2006,
p.39, para. 87).‖
The Applicant‘s Memorial does not add any new element in this respect.
4.86 Any reading of the four volumes of annexes to the Georgian Application
leaves this matter beyond argument: not once is the Convention mentioned in
308
See above, para. 3.23 et seq.
309
I.C.J., Judgment, 21 December 1962, South West African Cases (Liberia and Ethiopia v.
South Africa), Rep., p.344: ―In considering the question, it is to be noted, first, that the alleged
impossibility of settling the dispute obviously could only refer to the time when the
Applications were filed‖.
310
Order of 15 October 2008, Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v. Russian Federation), Joint dissenting
opinion of Vice-President Al-Khasawneh and Judges Ranjeva, Shi, Koroma, Tomka,
Bennouna and Skotnikov, para. 15. 135
the relations between Russia and Georgia or in Georgia‘s statements before
various international bodies.
4.87 The Dissenting Judges in the provisional phase of the present case
stressed that it is for the Applicant to establish the initiation of the negotiation
process. There is no place for a presumption in favour of the Applicant here:
―For the condition of prior negotiation to be fulfilled, it suffices for an
attempt to have been made and for it to have become clear at some point
that there was no chance of success. In any event, it is clear that when
negotiation is expressly provided for by a treaty, the Court cannot ignore
this prior condition without explanation; nor can the Court dispose of this
condition merely by observing that the question has not been resolved by
negotiation.‖ 311
And further:
―The very least that the Court should have done was to ask itself whether
negotiations had been opened and whether they were likely to lead to a
certain result, but it did not do so. Thus, it is understandable why a State
party to CERD, in this case Russia, finds it unacceptable for an action to
be brought against it before the Court without having bee312irst advised of
Georgia‘s grievances with regard to this Convention.‖
4.88 Russia respectfully maintains that this is the question that the Court must
ask. The position is that at no time have there been bilateral or multilateral
contacts on relevant issues of racial discrimination between the Parties (a), but
also Georgia has on many occasions expressed its appreciation of the Russian
role as facilitator in the ongoing negotiations relating to the conflict, between
Georgia on the one hand and Abkhazia and South Ossetia on the other, in
relation to the legal status of Abkhazia and South Ossetia (b).
311
Ibid., para. 13.
312Ibid., para. 16. 136
1. There have been no bilateral or multilateral contacts on relevant issues of
racial discrimination between the Parties
4.89 As Russia has already noted in Chapter III, the bilateral and multilateral
contacts between itself and Georgia have not dealt with the question of racial
313
discrimination :
a. In no international forum has Georgia initiated a dispute with Russia
relating to CERD or, in general terms, to racial discrimination.
b. On the contrary, there are many documents – including those annexed
by Georgia to its Memorial – which show that the role of Russia as a
314
facilitator was met with appreciation .
a) Bilateral contacts
4.90 As far as the bilateral contacts between the Parties are concerned, it is
convenient to follow step by step the Georgia‘s ―Chronology of Bilateral
Negotiations‖ appearing at pages 307 to 315 of its Memorial:
a. 8.35 An account of the lengthy but unsuccessful bilateral consultations
and negotiations between Russia and Georgia begins with the meeting
between the Chairman of the Supreme Council of the RSFSR, Boris
Yeltsin, and the Chairman of the Supreme Council of the Republic of
Georgia, Zviad Gamsakhurdia, on 23 March 1991, in relation to the
conflict in South Ossetia. According to the minutes of the meeting [Annex
96], Russia and Georgia, together with representatives of South Ossetia,
undertook to establish the conditions necessary for the return of refugees
to the places of their permanent residence.
313
Paras. 3.63 et seq.
314See also below, paras. 4.112-4.119. 137
(1) There is no mention of any ethnic related issue in that
document; a mention of the refugees cannot be assimilated to a
discussion of a claim of racial discrimination brought against
Russia.
(2) The Georgian Memorial makes a factual error: speaking of the
conditions necessary for returns, Annex 96 mentions North Ossetia,
not South. The mention of North Ossetia means that Russia, like
Georgia, at that moment denied the South Ossetian authorities any
official role in the settlement of the conflict. North Ossetia, being a
part of Russia, and having narrow ethnic ties with South Ossetia,
was seen as another useful mediator, and a useful executor of
rehabilitation programmes.
(3) There is no sign of Russia being a party to the conflict.
(4) This document (and the facts reported therein) predate
Georgia‘s accession to the Convention 31.
b. 8.35 (cont.) Shortly afterwards, on 24 April 1991, representatives of the
“Inter-Parliamentary Commission” from the Supreme Soviets of the
USSR, the RSFSR and Georgia, called upon each State to “institute legal
proceedings against persons who were engaged in violence, robberies
and arsons, also those guilty of inflaming the ethnic conflict”. [Annex 97]
(1) The document expressly condemns the persons ―guilty of
inflaming the ethnic conflict‖ 31, thus demonstrating the unity of
approaches of the USSR, Russia and Georgia to the problem.
(2) Overall, the text only supports the idea that the USSR and the
Russian authorities were eager to help Georgia in settling the
conflict, without challenging its sovereignty and territorial integrity.
Moreover, the mentioning of the ―former South Ossetian
315
See below, Chapter VI.
316Paragraph 5. 138
317
Autonomous Area‖ further confirms the unity of positions
between Moscow and Tbilisi (the autonomous status of South
Ossetia had been formally abolished by the Georgian authorities).
(3) This document cannot anyway serve as an example of
negotiations since it is only the document of a parliamentary
commission that cannot qualify as an official position of the
respective governments.
(4) This document (and the facts reported thereof) predate
Georgia‘s accession to the Convention.
c. 8.35 (cont.) An “Agreement on Principles of Settlement of the Georgian-
Ossetian Conflict” was then signed by President Boris Yeltsin and
President Eduard Shevardnadze on 10 June 1992 [Annex 102]
(1) This document has already been considered in Chapter II
above 318. According to the preamble:
―The Republic of Georgia and the Russian Federation,
seeking to stop the bloodshed and achieve, as soon as possible, a
comprehensive settlement of the conflict between Ossetians and
Georgians,
guided by their desire to restore peace and stability in the region,
confirming their commitment to the principles of the UN Charter
and of the Helsinki Final Act,
acting in the spirit of respect for human rights and freedoms, as well
as for the rights of national minorities…‖.
This agreement thus aims at putting an end to an armed conflict, not
319
to acts of racial discrimination .
317
Paragraph 2, last bullet point – emphasis added.
318See para. 2.13 et seq. 139
(2) The Agreement draws a clear distinction between the parties to
the Agreement (obviously, Georgia and Russia) and the ―opposing
parties‖ (Article 1, implying Georgia and South Ossetia): the
conflict in question is described as being ―between Ossetians and
Georgians‖. Indeed, Article 2 then rules out ―the possibility of
involvement of the armed forces of the Russian Federation into the
conflict.‖320 Therefore, again, this is not an agreement between the
parties to the conflict, but an agreement between one country in
whose territory the conflict was developing (Georgia) and another
country that was seen as a potential facilitator and guarantor of the
conflict settlement process and that was receiving numerous
Ossetian refugees (Russia) 32.
(3) This document (and the facts reported therein) predate
Georgia‘s accession to the Convention.
d. 8.36 In relation to the conflict in Abkhazia, the Presidents of Russia and
Georgia met on 3 September 1992 and agreed to the “Final Document of
the Moscow Meeting” [Annex 106]. A ceasefire was announced in respect
of the military confrontation between the Georgian armed forces and the
militias in Abkhazia. The Final Document made clear reference to the
protection of the rights of minorities and was signed by the Heads of State
of Russia and Georgia. Article 5 of the Agreement annexed to the Final
Documents reads:
The conditions for the return of refugees to the places of their
permanent residence are being secured. They shall receive the
adequate assistance and aid.
319
See also Article 1, para. 1: ―From the very moment of signing of present Agreement, the
opposing parties commit themselves to undertake all necessary measures aimed at termination
of hostilities and achievement of comprehensive cease-fire by 28 June 1992‖.
320The words ―armed forces of the Russian Federation in the conflict‖ in the translation
provided by Georgia are misleading.
321
This is also confirmed by criticism over the Agreement initially expressed by the South
Ossetian side (see para 2.15 above). 140
8.37 This was supplemented with an explicit obligation imposed upon the
parties by Article 8:
The Sides confirm the necessity of observing the international
norms in the sphere of human rights and minority rights,
inadmissibility of discrimination of the rights of citizens with
regards to ethnicity, language or religion, and the securing of free
democratic elections.
(1) The substance of the document reveals that no dispute existed
between Russia and Georgia. On the contrary, agreements were
reached on all matters, with the acknowledgement of the territorial
integrity of Georgia, the right of displaced persons to return, etc.,
including the principle of the inadmissibility of discrimination: this
points to an agreement, not to a dispute;
(2) According to Article 9: Russian armed forces ―shall firmly
observe neutrality and do not participate in internal conflicts‖:
notably, the conflicts in question are referred to as internal ones.
(3) This document (and the facts reported therein) predate
Georgia‘s accession to the Convention.
e. 8.38 Thus, as early as in 1991-1992, Georgia and Russia had recognized
the problem of ethnic discrimination as being at the heart of the conflicts
in Abkhazia and South Ossetia.
(1) This is incorrect: they recognized that there existed an armed
conflict between Georgia on the one hand, Abkhazia and South
Ossetia on the other hand and Russia was wishing to do what it
could to put an end to that conflict – to which Russia was not a
party. Even if Georgia and Russia recognized the issue of ethnic
discrimination as one of the aspects of the conflict, they were
clearly not in a dispute over it. 141
(2) And again, mentions of refugees cannot be assimilated to a
claim of racial discrimination brought against Russia, still less the
existence of negotiations in relation to such a claim.
(3) All these documents (and the facts reported therein) predate
Georgia‘s accession to the Convention.
f. 8.39 A “Protocol of Negotiations between the Governmental Delegations
of the Republic of Georgia and the Russian Federation” was then signed
on 9 April 1993 in Sochi by the Russian Minister of Defence, Pavel
Grachev and the Georgian Prime Minister, Tengiz Sigua [Annex 105]. A
“Commission for Control and Inspection in Abkhazia was established,
inter alia, to “address the issues related to the return and accommodation
of refugees and internally displaced persons”. The Protocol called for
“measures aimed at... the protection of human rights of ethnic
minorities…in full conformity with international law”.
(1) A mention of the refugees cannot be assimilated to a reference
to racial discrimination.
(2) The English translation provided by Georgia seeks to
demonstrate that Russia was a party to the conflict:
―The parties to the conflict … expressed their strong
determination to … introduce a cease-fire … and denounce
the use of military force against each other …‖.
However, the Russian original text in reality reads:
―The parties [i.e. the parties to the negotiations; the words ‗to
the conflict‘ do not appear] … have spoken firmly in favour
of a … cease-fire …, of a prohibition of any use of force …
[without saying ‗against each other‘] …‖.
Indeed, if Russia had been a party to the conflict, this sentence, in
whatever form, would be meaningless. Since the parties to the
Protocol declare themselves to be in favour of a ceasefire, then why
not sign it straight away if they are also the parties to the conflict?
In fact, that sentence shows that Russia and Georgia were in favour
of a ceasefire, but that reaching a ceasefire did not depend only on 142
them. The 3 paragraph of Part I also shows that the ―parties to the
conflict‖ are to be distinguished from the parties to the negotiations
of which Annex 105 is a procès-verbal, while the last paragraph of
Part I expressly mentions the ―Georgian-Ossetian conflict‖.
(3) In the 9 paragraph of Part I, Russia expresses its readiness to
discuss the relevant matters with Abkhazia, showing that Russia
322
was a mediator .
(4) Part II of the document demonstrates the constructive
atmosphere of the meeting and the general improvement of
Russian-Georgian relations.
(5) This document (and the related facts) predate Georgia‘s
accession to the Convention.
g. 8.40 The next step involved the wider international community, reflected
in the conclusion of a “Memorandum of Understanding” between
Georgia and the Abkhaz de facto government, with the participation of
Russia, the United Nations and the CSCE on 1 December 1993 [Annex
108]. This was the start of the “Geneva negotiations”, in which Russia
was described as a “facilitator”. This agreement mandated the following
action from the parties:
The parties consider it their duty to find an urgent solution to the
problem of the refugees and displaced persons. They undertake to
create conditions for the voluntary, safe and speedy return of
refugees to the places of their permanent residence in all regions of
Abkhazia. The apartments, houses, plots of land and property which
they left shall be returned to all those refugees who return.
(1) Russia is described as a facilitator, not as a Party to the conflict
let alone as responsible for racial discrimination.
322
This indeed was done: on 5-6 May 1993, Russian-Abkhaz consultations took place, at
which ―fulfilling its mediating functions, the delegation of the Russian Federation familiarised
the representatives of Abkhazia with the results of the negotiations [between Russia and
Georgia] that had taken place in Sochi on 6-9 April‖. Communiqué on Russian-Abkhaz
consultations, Maykop (5-6 May 1993). Annex 28. 143
(2) No ethnicity-related issues are mentioned: it is not sufficient to
mention the ―return of the refugees‖ to establish the existence of a
racial discrimination dispute brought against Russia, still less the
existence of negotiations.
(3) This document (and the facts reported therein) predate
Georgia‘s accession to the Convention.
h. 8.41 The human tragedy underlying the present case before the Court is
that the right of return guaranteed by Article 5 of the Convention and
endorsed in the official documents signed by the Presidents of Russia and
Georgia at the start of negotiations some fifteen years ago has proven to
be illusory, as a result of Russia‟s conduct throughout this time.
The right of return in Art. 5(d)(ii) of CERD must be interpreted in
the context of the Convention, in view of its object and purpose and
in the light of other international instruments in which the same
right is enshrined: it relates to the right physically to cross state
borders and does not bear upon the right of return of displaced
persons (i.e. a complex process involving matters of property, social
rehabilitation and re-integration etc.) following an armed conflict.
i. 8.42 On 3 February 1994, the “Agreement between Georgia and the
Russian Federation on Friendship, Good Neighborhood and
Cooperation”, known as the “Framework Agreement”, was signed by
both parties [Annex 109]. It was seen as the legal basis for any kind of
relations, and although some progress was made at various stages and
working commissions were established, it was never ratified by the
Russian Federation 323.
(1) It is difficult to imagine a country signing a Friendship
Agreement with another country that the former was accusing of
egregious acts of racial discrimination.
323In fact, it was not ratified due to a deterioration in bilateral relations, – not in relation with
the dispute now alleged by Georgia. 144
(2) This document (and the related facts) predate Georgia‘s
accession to the Convention.
j. 8.43 The “Quadripartite Agreement on the Voluntary Return of Refugees
and Displaced Persons” was then concluded on 4 April 1994 in Moscow
between Georgia, Russia, representatives of Abkhazia and the UN High
Commissioner for Refugees [Annex 110]. A “Commission” was
established pursuant to the Agreement “to formulate, discuss and approve
plans to implement programmes for the safe, orderly and voluntary
repatriation of the refugees and displaced persons to Abkhazia from
Georgia, the Russian Federation and within Abkhazia for their successful
reintegration”.
(1) There is no mention in the document of any ethnicity-related
issue (with the exception of the proclaimed right of ―[d]isplaced
persons/refugees … to return voluntarily to their places of origin or
residence irrespective of their ethnic, social or political
affiliation…‖ 324); a mention of the refugees cannot be assimilated to
negotiation of a claim of racial discrimination brought against
Russia.
(2) Again, a deliberate distinction is made between Russia on the
one hand and the Parties to the conflict on the other hand; the
Agreement is concluded between ―[t]he Abkhaz and Georgian
sides, hereinafter referred to as the Parties, the Russian Federation
325
and the United Nations High Commissioner for Refugees‖ .
(3) This document (and the related facts) predate Georgia‘s
accession to the Convention.
324
Paragraph 3(b).
325Paragraph 1 of the Preamble. 145
k. 8.43 (cont.) The Commission met on 4 April 1994 326and 27 April 1994
[Annexes 111 and 112].
(1) The rapid schedule of the meetings points to the seriousness of
the parties‘ intentions to positively solve the refugees problem.
(2) The penultimate paragraph of Annex 111 reads: ―The sides
reaffirmed their readiness to strictly pursue principles and proposals
of the Moscow Agreement of 4 April 1994 on voluntary return of
refugees and displaced persons proceeding from the fact that the
process of return would be connected with deployment of the
peacekeeping forces‖, whereas the last paragraph of Annex 112
reads: ―The meeting was held in constructive environment and full
mutual understanding‖. Both paragraphs underline the common
accord of the sides to implement the framework agreement on the
return of refugees.
(3) Alongside Georgia and Abkhazia, these documents are signed
not only by Russia but also by the UNHCR, attesting to the
facilitating role of Russia.
(4) This document (and the related facts) predate Georgia‘s
accession to the Convention.
l. 8.44 On 24 July 1995, the Parties to the Quadripartite Agreement signed
a protocol referring to the following steps for the return of IDPs: [Annex
116]
The working group shall start its activities beginning from August
1995 and within two weeks, and in accordance with an action plan
adopted by the working group, the process of organized return of
refugees to places of their permanent residence, first of all to the
Gali region, shall commence.
326In fact, the first meeting took place on 9 April, not 4 April (see GM Annexes 111 and 112). 146
(1) The document reproduced in Annex 116 is clearly a ―draft‖, as
can be seen from its first line. According to the best knowledge of
the Russian Federation, it has never been signed, but only initialled
by representatives of the sides, with the Abkhaz side later refusing
to sign it (as is also clear from the penultimate line of Annex 116).
(2) But even if it were signed, there is no mention of any ethnicity-
related issue in that document (but for a call to ―inter-ethnic
327
concord‖ ); a mention of the refugees cannot be assimilated to
negotiation of a claim of racial discrimination brought against
Russia.
(3) Again, a deliberate distinction is made between Russia on the
one hand and the Parties to the conflict on the other hand; the
protocol was to be concluded by the ―representatives of [the]
Georgian and [the] Abkhaz sides, under the mediation of
representatives of [the] Russian Federation32.
(4) According to Article 3, ―[f]or organization of works aimed at
return of refugees, a special working group composed of
representatives of the Parties and the Russian Federation and the
UNHCR, shall be set up‖; this again shows a high degree of
confidence by the Parties (including Georgia) with respect to the
positive role of Russia.
(5) This document (and the related facts) predate Georgia‘s
accession to the Convention.
m. 8.45 A number of meetings were held at the Presidential level to discuss
the situations in Abkhazia and South Ossetia. On 6-7 March 2003, a
meeting was held in Sochi between President Vladimir Putin and
President Eduard Shevardnadze [Annex 136]. According to the
327
In paragraph 4 of the Preamble.
328Paragraph 1 of the Preamble. 147
Respondent, the resulting “Sochi Agreements” made the Geneva Process
redundant, despite the latter involving the wider international community.
A solution to the plight of the IDPs was high on the agenda for this
meeting, where it was emphasised that the first priority must be the return
of ethnic Georgian IDPs to the Gali region of Abkhazia.
(1) This is the first document relating to the period following the
accession of Georgia to the Convention. Also to be noted is the gap
between 1995 and 2003 in Georgia‘s own chronology which of
course reflects Georgia‘s inability to identify any relevant document
– however remotely linked to the subject matter of the Application
the ones it has produced may be.
(2) The return of the refugees was one of the three issues to be
further discussed, the two others being the restoration of the Sochi-
Tbilisi railway connection, and the modernization of the Inguri
hydroelectric plant. A mention of the refugees cannot be assimilated
to negotiation of a claim of racial discrimination against Russia.
(3) Contrary to the Georgian allegation, Annex 136 does not
mention ―ethnic Georgians‖; there is no mention of any ethnicity-
related issue in that document.
n. 8.45 (cont.): A working group was established to secure that objective.
But when the working group met on 16 June 2003 and 31 July 2003, the
Russian side rejected the Georgian proposal for a Joint Provisional
Administration under the auspices of the United Nations in Gali to secure
the dignified and safe return of the IDPs [Annex 137]; Russia defended its
rejection on the ground that Abkhaz representatives were against such a
JPA being established. The Russian side then insisted that the return of
the IDPs should only occur on the basis of the conditions presented by the
Abkhaz de facto government.
(1) Of the three (or at least two) unrelated documents in Annex 137
only the first page corresponds to the title of the Annex and to the
contents of paragraph 8.35 of the Memorial. 148
(2) The content of that first page (presumably, it is a translation of
an internal Georgian information note about the results of the
meetings mentioned) is distorted in the Memorial. The document
merely shows that Russia took no position of its own, but rather
was ready to agree to any decision that Georgia and Abkhazia could
reach as between themselves, and was insisting on direct
negotiations between the two parties to the conflict. Among other
things, it is not clear why Annex 137 calls the working groups in
questions ―Georgian-Russian‖.
o. 8.45 (cont.): The working group met again on 26-27 April 2004 at the
Russian Ministry of Foreign Affairs [Annex 139]. The UN Special
Representative in Georgia, Heidi Tagliavini, noted that they had
elaborated the main parameters for the return of IDPs together with the
UNHCR. But, the Abkhaz representatives had refused to sign the resultant
“Intentions Document”.
(1) Overall, Annex 139 is a good example of the constructive
position of Russia as facilitator in the negotiations between Georgia
329
and Abkhazia .
(2) No ethnicity-related issue is mentioned. The fact that the object
of the meeting was the return of the refugees does not make it
equivalent to a negotiation of a claim of racial discrimination
brought against Russia.
(3) As made clear by the declaration of the Special Representative
of the Secretary-General of the United Nations, the return of the
refugees was a matter for Georgia and Abkhazia (―I suggest to the
Georgian and Abkhazian sides to declare about their readiness to
329
See e.g. the following passage of the document reporting the Russian position: ―Due to the
positions of the sides it is impossible accept/approve the Letter of Intentions. It is advisable to
continue work to achieve the coincidence of the positions and to work out the agreed
document‖;or: ―It is necessary to find out terms that will be acceptable for both sides‖. These
positions also show that Russia was not directly and primarily concerned. 149
start the process of return of refugees‖). Similarly, the
representative of the UNHCR mission in Georgia took the position
that the process of return of the refugees was the business of ―both
330
sides‖, thus designating Georgia and Abkhazia – not Russia .
p. 8.45 (cont.): Another meeting of the working group took place on 20 July
2004 [Annex 140]. Once again the “Intentions Document” was circulated
calling for the return of IDPs to the Gali region as a first step and in
recognition of the fact that “fundamental principles” relating to “the
return of refugees and IDPs” require “the establishment of security
conditions and protection of human rights enshrined in [the] Universal
Declaration of Human Rights of 1948, as well as in other major Human
Rights treaties” [Annex 307]. The working group met again on 15-16
June 2005[Annex 92].
The three documents mentioned in this paragraph are scarcely
relevant:
(1) Annex 92 goes no further than stating that
―During the year of 2005, 4 meetings … of the Joint Control
Commission for the resolution of Ossetian conflict have been
held in Moscow, as well as 1 meeting … in the context of
conflict resolution in Abkhazia, of the Working Groups on
the Return of Refugees and on Restoration of Railways‖.
If this proves anything it is that the Russian Government wished to
assist in finding a solution to the refugees issue. By no means can
the problem of the refugees be equated with racial discrimination,
just like Russian mediating efforts in respect of the resolution of the
conflicts of others cannot be equated to the existence of a Russian-
Georgian dispute.
330―In case of agreement from both sides we will support the process of return of refugees but
we need the joint statement by both sides‖. See also the Position of Commander-in-chief of
the CIS Collective forces in the conflict zone: ―After defining the positions by Georgian and
Abkhazian sides we can specifically define our task…‖. 150
(2) Annex 140 briefly discusses some practical matters concerning
the return of the refugees, without hinting at any issue of racial
discrimination – by Russia or otherwise.
(3) And the same can be said of Annex 307 which only mentions by
name the ―Georgian and Abkhaz sides‖ and which anyway was not
agreed to by them, if the document reproduced in Annex 307 was
indeed annexed to the accompanying letter (nothing suggests it
331
was) and is indeed the draft letter of intentions circulated on 20
July 2004.
r. 8.46 The new President of Georgia, Mikhail Saakashvili, wrote to
President Putin on 26 July 2004 in order to draw attention to the lack of
any real progress in resolving the conflicts in South Ossetia and Abkhazia
[Annex 309]. President Putin responded on 14 August 2004 [Annex 310].
In relation to South Ossetia, he expressed the following assessment:
I would like to emphasize that the most important aspect 332 of the
resolution of Georgian-Ossetian conflict should be the ensuring of
protection of rights and interests of the population of South Ossetia
the majority of which are Russian citizens. Taking into
consideration the above-mentioned we will continue purposeful
mediatory work for a peaceful settlement of the conflict.
8. 47 In relation to Abkhazia, President Putin wrote:
To my belief the main line direction of the work for solving
problems with Abkhazia should be the practical and coherent
realization of Sochi agreements.
(1) While this exchange of letters shows tensions between both
countries, it also bears witness to the good will of the two leaders
and their wish to find a resolution of the conflict which, as is shown
331
An English translation is reproduced in Annex 59 to these Objections.
332The words ―the most important aspect‖ are phrased in the original Russian text in a way
that may equally be translated as ―one of the most important aspects‖. 151
by both letters, raises the question of military and paramilitary
activities and of territorial integrity.
(2) It should be noted that this exchange of letters followed an
attempt by Georgia to re-establish control over South Ossetia by
333
force.
(3) The letter of President Saakashvili demonstrates what the real
grievances of Georgia were: alleged infiltration of mercenaries from
Russia into South Ossetia; alleged training of South Ossetian forces
by Russian servicemen; alleged introduction of extra military
equipment by Russia into South Ossetia; alleged distribution of
Russian passports in South Ossetia; alleged improper declarations
by the JPKF Commander; alleged privatisation of property in
Abkhazia by Russian companies; smuggling and other criminal
activities. It is telling that this long list does not include anything
even remotely related to racial discrimination.
(4) As for the reference by President Putin in Annex 102 to the
Sochi agreements, this only confirms that the main question in these
exchange of letters is the implementation of the accords (reached in
2003) on the re-establishment of the railway link; the hydroelectric
plant; and the return of displaced persons, that, as seen from the
letter, was fully supported by Russia.
s. 8.48 Once again, the President of Georgia initiated correspondence with
the new Russian President Dmitri Medvedev in June 2008 [Annex 308].
He raised the problem of the return of IDPs to Abkhazia. President
Medvedev‟s response of 1 July 2008 was as follows: [Annex 311]
It is also apparently untimely to put the question of return of
refugees in such a categorical manner. Abkhazs perceive this as a
threat to their national survival in the current escalated situation
and we have to understand them.
333See above, Chapter II, para. 2.32. 152
(1) In this exchange of letters, the two Presidents refer to the
question of the return of the refugees, but none of the letters
suggests that a claim as to racial discrimination is under
negotiation. Moreover the question on the refugees is only one
aspect of a great number of questions addressed in the letters,
together with, inter alia, the peace-keeping troops, the
establishment of a free economic zone, naval communication
between Sukhumi and Trabzon, the Olympic Games of 2014 etc.
(2) Regarding President Medvedev‘s response, Georgia takes his
words out of context. From the second (third in the Russian
original) paragraph of President Medvedev‘s letter it is clear that
the Russian position was that Georgia should first of all speak to the
Abkhaz:
―I have attentively reviewed your proposals on the problems
of regulation of Georgian-Abkhazian conflict. Most of the
elements can be relevant at different stages of regulation,
after the proper elaboration/modification. Here, the principle
partner must be Abkhazia. 334
Apparently, this presumes first of all the full-scale
negotiation process. Unfortunately, the sides feel deep mutual
mistrust as of today and the recently resumed contacts
between Tbilisi and Sokhumi have only occasional
character‖.
Therefore, when the issue of the return of refugees was qualified by
President Medvedev as untimely and categorical, he was not
referring to a refusal by Russia to discuss it, but rather to an
objective statement of fact, given the attitude of Abkhazia.
(3) The next paragraphs of President Medvedev‘s letter demonstrate
that Russia had a vision of a positive agenda for negotiations
334There is a mistranslation; the sentence should read ―Here, your primary partner must be the
Abkhaz side‖. 153
between Tbilisi and Sukhumi on the settlement of political issues
that divided them.
t. 8.49 The Russian President‟s characterisation of the question of the
return of the IDPs to Abkhazia as “untimely and categorical” in July
2008 st335s in contrast to the Memorandum of Understanding signed by
Russia in December 1993, which committed the parties to finding an
“urgent solution to the problem of the refugees and displaced persons”
[Annex 108].
(1) The document relates again to the question of the return of
refugees and IDP‘s and not to racial discrimination.
(2) Moreover, even though this is not the question, it cannot be
deduced from the fact that after so many years the problem of the
refugees had not found a solution that Russia bears responsibility
for this relative deadlock.
u. 8.49 (cont.): This makes clear that in 2008 the parties were plainly in
dispute on the issue of protections needed for ethnic Georgians against
discrimination and exclusion.
Contrary to what Georgia implies, there is no proof that there was a
disagreement between Russia and itself on questions of ethnic
discrimination. Moreover, Georgian complaints regarding refugees
(that Georgia portrays as claims on racial discrimination, quod non)
are not addressed to Russia.
v. 8.49 (cont.): On 15 May 2008 Russia voted against UN General Assembly
resolution GA/10708 which focused on the right of return of all refugees
and IDPs to Abkhazia, and recognised that there had been attempts to
alter the pre-conflict demographic composition.
335As clear from its very name (―Memorandum of Understanding between the Georgian and
Abkhaz sides at the negotiations in Geneva‖), Annex 108 is a bilateral Georgian – Abkhaz
document. 154
(1) Georgia refers to General Assembly Resolution 62/249,
remarkable in itself by having been adopted by 14 votes to 11 with
105 abstentions.
(2) It is to be noted that, speaking before the adoption of the
Resolution, the Georgian representative used the word ―Russia‖
only once, when he invited Russia to continue to fulfil its mediation
role:
―…our proposals include the following: [description of
substantive proposals on the resolution of the conflict]; and
an invitation to the Russian Federation, along with the rest of
the international community, to act as mediator in this
336
process‖ .
(3) Russia explained in detail why it voted against the Resolution 337.
The main idea was that the draft was politicized and that it could
only harm the negotiation process, as the Abkhaz would perceive
the Resolution as a non-friendly gesture. The Russian statement is
also helpful to demonstrate what the ―real‖ dispute was (and still
is33):
―It is clear that this initiative has been concocted by the
authors to put pressure on the Abkhaz side to resolve
political, rather than humanitarian issues. That has indeed
been reaffirmed by the statements that we have heard today
following the representative of Georgia‘s introduction of the
draft resolution, which referred only to political aspects of the
settlement of the conflict in [this] territory of the former
Union of Soviet Socialist Republics, and said virtually
336U.N., General Assembly, 62nd session, Official Records, 97th plenary meeting, U.N. Doc.
A/62/PV.97 (15 May 2008), p.3. Annex 68.
337
Ibid., p.7.
338
See above, Chapter II, para. 2.45 155
nothing about the problems o339efugees and internally
displaced persons (IDPs).‖
In so doing, Russia was thus acting merely as a mediator interested
in the success of its mediation.
4.91 By way of conclusion of its alleged account of ―the extensive negotiations
between Georgia and Russia concerning the subject matter of Georgia‘s claims
340
under the 1965 Convention‖ , Georgia asserts that:
8.50 In sum, despite numerous bilateral meetings and discussions between
Georgia and Russia, and notwithstanding several agreements reached
and commitments made regarding non-discrimination against ethnic
Georgians and facilitation of the return of Georgian IDPs to South
Ossetia and Abkhazia, the situation in the two territories remained
fundamentally unchanged for the ethnic Georgians living there or seeking
to return. The extensive negotiations that were held over more than 15
years failed to resolve the dispute between the Parties.
4.92 The lack of underlying evidence of negotiations that Georgia relies upon
is striking. Of course Georgia has been able to point to multiple contacts
between itself and others concerning Abkhazia and South Ossetia, but the
question is whether such contacts concerned ―the subject matter of Georgia‘s
claims under the 1965 Convention‖ against Russia. They did not. As the
paragraph by paragraph rebuttal above shows: in spite of Georgia quest for
documents showing, even remotely, that such a claim was made, it could find
none. At no occasion in their bilateral relations did Georgia articulate any claim
of racial discrimination by Russia, and Georgia and Russia did not engage in
negotiations in respect of any such claim.
339
U.N., General Assembly, 62nd session, Official Records, 97th plenary meeting, U.N. Doc.
A/62/PV.97 (15 May 2008), p.7. Annex 68.
340GM, p.304, para. 8. 32. 156
4.93 One of the recurrent questions dealt with in the documents on which
Georgia relies is that of the return of refugees and IDPs. But this is a different
issue, all the more so as the numerous documents provided by Georgia
demonstrate that this matter was not treated in the negotiations under a racial
discrimination angle. Moreover, many of the documents invoked by Georgia
show that it called for Russia‘s cooperation on the issue and that Russia
answered positively, while constantly making clear that it had no responsibility
on the creation of this situation, and, at the same time, no means of solving this
problem without agreement of the parties to the conflict – Abkhazia and South
Ossetia.
4.94 And indeed, none of the documents invoked by Georgia qualifies Russia
as a party to a dispute or conflict; on the contrary, they constantly identify
Georgia, Abkhazia and/or South Ossetia as parties; they always carefully
distinguish between Russia and the parties to the conflict. They confirm that, as
will be shown below (Sub-Section (b)) in more detail, Georgia has constantly
acknowledged the positive role of Russia in respect to the now alleged dispute.
4.95 And all these documents also confirm that the real object of Georgia‘s
grievances is by no stretch of the imagination a Georgian claim of racial
discrimination against Russia but the neatly distinct question of the territorial
integrity of Georgia and the use of force in Abkhazia and South Ossetia with the
consequential problem posed by the refugees fleeing from the combat zone.
b) Multilateral fora
4.96 The same observations can be made with respect to the contacts of the
Parties within or through multilateral fora and to the position taken in each
instance, whether the Joint Control Commission for the Georgian-Ossetian
Conflict Settlement (JCC), the United Nations Geneva Process and the Group of 157
Friends of Georgia, the Organisation for Security and Cooperation in Europe
(OSCE) or the Commonwealth of Independent States (CIS).
4.97 As noted in Chapter II above, and as recalled by Georgia 34, the JCC was
created by the Sochi Agreement of 24 June 1992, the full title of which is, by
itself, revealing: ―Agreement on Principles of the Settlement of the Georgian-
Ossetian Conflict‖ 342. Its aim is made clear in the Preamble: the speedy
restoration of peace and stability in the region. This is confirmed by the
Regulation on the JCC of 31 October 1994 (also invoked by Georgia 34) which
states that the Parties act ―with the aim of ensuring the monitoring of the
ceasefire through the withdrawal of armed formations, the dissolution of self-
defense forces, and the assurance of a security regime in the zone of conflict, as
well as through the maintenance of peace, the prevention of a renewal of
military actions, and the carrying out of coordination of the joint activities of the
parties for the stabilization of the situation, for the political settlement of the
conflict, for economic restoration of the afflicted zones, and for the return and
reestablishment of refugees and forced resettlers‖. The rights of ethnic
344
minorities are mentioned , but far from showing a disagreement between both
countries on this point, the Sochi Agreement and the 1994 Regulation 345 bear
witness of their complete agreement on this point.
341GM, p.315, para. 8. 51.
342
See GM, Annex 102.
343GM, Annex 113.
344
GM, Annex 102, para. 4 of the Preamble: ―Acting in the spirit of respect for human rights
and fundamental freedoms, as well as rights of ethnic minorities‖.
345GM, Annex 113, para. 5: ―The following functions and tasks are assigned to the Joint
Control Commission: … f) organization of supervision concerning the observation of human
rights and national minorities in the zone of conflict‖. 158
4.98 Moreover, it is most revealing that, while it acknowledges that the JCC
346
held thirty-two meetings between 1992 and 2007 , Georgia, which, here again,
was, without any doubt, desperately searching for documents in support for its
argument – could only mention four documents, none of them supporting, even
remotely, the existence of negotiations between Georgia and Russia on a claim
of racial discrimination of the former against the latter:
- a Memorandum on necessary measures to be undertaken in order to ensure
security and strengthening of mutual trust between the parties to the Georgian-
Ossetian conflict of 16 May 1996 (Annex 118 to the Georgian Memorial);
- two ―Agreements between Georgia and Russia‖ on the return of refugees
signed on 23 July and 23 December 2000 (Annexes 129 (annex 3) and 131); and
- a draft ―Inter-State Russian-Georgian Program on the Return, Accommodation,
Integration and Reintegration of Refugees and IDPs‖ said to have been approved
at the meeting of the JCC of 23-26 June 2003 (which Georgia has not annexed)
and elaborated upon in the minutes of the meeting of the Co-Chairmen of the
JCC of 16 April 2004 (Annex 138).
4.99 The extract of Annex 118 quoted by Georgia 347 only shows that the
signatories were in agreement – and agreement is just the opposite of a dispute –
that it was necessary to put an end to violations based on ethnicity.
346
GM, p.317, para. 3. 55.
347At p.317, para. 8.56: ―The Parties shall undertake all necessary measures aimed at
prevention and cutting short any illegal actions that may violate human rights on the ground
of ethnic origin‖.
Contrary to Georgia‘s assertion, Annex 118 not a JCC document, but a multilateral agreement
signed by Russia in its capacity of facilitator, as the OSCE representative did: ―Under the
facilitation of representatives of the Russian Federation and participation of representatives of
the Republic of North Ossetia–Alania and Organization for Security and Cooperation in 159
348
4.100 Annex 3 to Annex 129 and Annex 131 also confirm Russia‘s mediating
349
role , and if they contain an allusion (a very indirect allusion) to a risk of racial
discrimination, it is directed at Georgia: ―The Georgian Side, in full conformity
with norms of the international law, shall secure full respect of human rights of
refugees and internally displaced persons returning to their places of permanent
350
residence‖ . More generally, Annex 131 is an agreement whereby Russia
accepted to assist in rehabilitation of the conflict area in order to create
conditions for returns. Accordingly, there was no dispute between Georgia and
Russia as to the problem of refugees and Russia not only did not hinder, but was
ready to facilitate returns.
4.101 Annex 138 only confirms this analysis, demonstrating that a significant
number of ethnic Ossetian refugees were (and still are) staying in the Russian
territory, in North Ossetia. Georgia has offered no evidence of a claim of racial
discrimination against Russia. Moreover, the program referred to was never
adopted by the JCC; the documents invoked by Georgia are simply
preparatory 351and it is important to note that they do not involve any question of
racial discrimination. The problem of refugees (to which Russia was also
confronted during and in the aftermath of the Georgian-Ossetian conflict) was
Europe (OSCE), representatives of the Georgian and South Ossetian delegations held
negotiations on further development of the process of comprehensive political settlement of
the Georgian-Ossetian conflict and […] [have] agreed upon the following‖ (Preamble).
348Annex 3 to Annex 129 is a JCC decision, not a Russian-Georgian agreement.
349See in particular paragraphs 5 and 6 of annex 3 to Annex 129 which clearly imply that
Russia is a third party in the Georgian – South Ossetian dispute. In Article 1 of Annex 131,
[t]he Parties acknowledge the necessity for further financing of restoration works in the
Georgian-Ossetian conflict zone.‖
350GM, Annex 131, Article 1, para. 3.
351
Georgia says that the programme was adopted in June 2003, while in reality only in April
2004 the JCC stated that the preliminary work had been finished (see Annexes 52 and 55). 160
addressed without any consideration of their ethnic origin. Georgians and
Ossetians were to be treated alike, as refugees fleeing the consequences of
armed conflict.
4.102 Georgia has not been more successful in its search of documents
confirming its case among those issued by the Special Ad Hoc Committee on the
Facilitation of the Voluntary Return of Refugees and IDPs to the Places of
Former Residence which was established by the JCC on 13 February 1997
(Protocol 7). As noted by the Applicant 35, the Committee met thirteen times
between 1997 and 2002; yet Georgia does not cite any episode or document
adopted by that Committee confirming its case.
4.103 Similarly, the developments in relation to the United Nations Geneva
Process and the Group of Friends of Georgia do not help Georgia. They simply
show that Russia was acting as a facilitator and was seen as acting in this
capacity by the parties to the conflict. Thus, in the ―Final statement on the
outcome of the resumed meeting held between the Georgian and Abkhaz parties
held in Georgia (17 - 19 November 1997)‖, the Russian Federation is mentioned
as one of ―the states of the Group of Friends under the Secretary General‖
together – and on an equal footing – with France, Germany, the United
353
Kingdom and the United States, all ―acting as observers‖ . As the Applicant
itself acknowledges, the mechanism of the ―Coordination Council of the
Georgian and Abkhazian Parties‖, created to implement the decisions made in
the Geneva Process, ―was chaired by the Special Representative of the UN
Secretary-General for Georgia and consisted of two representatives of Georgia
352
GM, p.318, para. 8. 58.
353
GM, Annex 125, para. 1. See also para. 5: ―The sides welcome the positive results of the
meeting between Mr. Shevardnadze and Mr. Ardzinba in Tbilisi on 14 and 15 August 1997,
organized with the support of the Russian Federation as facilitator.‖ (emphasis added). 161
and Abkhazia, as well as representatives from Russia as facilitator, the OSCE
354
and the Group of Friends.‖
4.104 Just like with the JCC, the Geneva Process documents annexed by
Georgia constitute evidence of constructive negotiations, not of an ongoing
dispute, and the issues discussed are not about ethnic discrimination, but mainly
about the refugees‘ return.
4.105 Georgia asserts in paragraph 8.71 of its Memorial that
―[o]n several occasions Georgia has attempted to raise the subject matter
of this dispute with the Russian Federation and to make progress in
resolving the conflict within the forum of the OSCE Permanent Council.
The OSCE itself has355en involved in monitoring the conflict zone since
1994 [Annex 74]‖ .
Interestingly, the Applicant omits to indicate ―the subject matter of this dispute
with the Russian Federation‖ which would have been raised by Georgia on
several undisclosed occasions. However, the ―conflict‖ which is dealt with by
the OSCE has nothing to do with the alleged dispute in this case. As explained in
the Mandate of the OSCE Mission to Georgia, adopted on 13 December 1992:
―the objective of the Mission was to promote negotiations between the
conflicting parties in Georgia which are aimed at reaching a peaceful political
settlement‖, and the conflicts in question are ―the Georgian-Ossetian conflict‖
and ―the conflict in Georgia/Abkhazia‖; 356for its part, the Russian Federation
appears only as far as the border monitoring is concerned but not at all as a party
to the conflict. Moreover, this document does not mention any question of racial
discrimination.
354GM, pp. 319-320, para. 8. 60 (emphasis added).
355
GM, p.323.
356GM, Annex 74. 162
4.106 Similarly, in his statement before the Permanent Council of the OSCE, on
30 March 2001, the Georgian Minister of Special Affairs of Georgia declared:
―With regard to the conflict settlement in Tskhinvali Region, we are
concerned by the fact that despite the efforts of the OSCE and the Russian
Federation to move the peace process ahead, the real progress has not
357
been achieved.‖
Georgia thus saw the OSCE and Russia as engaged in the same effort to move
the peace process ahead. Self-evidently it did not see Russia as party to any
conflict, let alone to the carefully constructed dispute that it now seeks to bring
before the Court.
4.107 In this same statement, Minister Kakabadze clearly indicated that:
―It has been eight years since my country fell victim to an ethnic violence
in Abkhazia, Georgia. Since then, with invaluable help from the
international community, we try to move the peace process ahead.
However, the progress has been practically non-existent. Unfortunately,
the illegitimate Abkhaz regime stubbornly refuses to move the negotiation
358
process ahead.‖
While the Russian Federation does not share the views of Georgia as to the
responsibilities borne in this respect, it is again manifest that this Georgian
complaint is not addressed to the Russian Federation.
4.108 By contrast, in his statement of 24 April 2006 at the OSCE Permanent
Council Meeting, the Minister of Foreign Affairs of Georgia made a whole
range of claims (including against Russia), but none concerned racial
discrimination. 359 The same holds true with respect to the ―South Ossetia
357GM, Annex 75.
358Ibid.
359
GM, Annex 81. 163
Conflict Resolution Plan‖, presented by the Prime Minister of Georgia at the
360
Permanent Council on 27 October 2005 , which does not mention overcoming
problems of racial discrimination. However, it is to be noted that the Plan looks
to:
―Introduce a new framework in conflict settlement process with
participation of OSCE, EU, US, Russia‖,
a formula which underlines again Russia‘s role of facilitator; and
―Ensure direct Georgian-South Ossetian dialogue through regular
meetings with South Ossetian leaders‖,
which confirms it was the South-Ossetian leaders that were identified by
Georgia as parties to the dispute.
4.109 Georgia then proceeds to a confusing presentation of various declarations
made by its representatives in the OSCE mixing invocation of documents post-
dating its seisin of the Court 361 with others cited without any cross-reference to
an annexed document 362. And when, exceptionally, Georgia cites a document
which it annexes, it happens that the document in question has no relation
whatsoever with the present alleged dispute: thus any reading of the only
document produced by Georgia in this respect (the Statement of the Georgian
360GM, Annex 85.
361
E.g. Annex 84, Statement by Deputy Head of Mission PC. DEL/34/09 (23 January 2009) –
mentioned in para. 8.72 of the Memorial as having been delivered on 22 January 2004.
362See e.g. GM, p.304, footnotes 979 and 982, or p.305, footnote 983. When quotes are made,
the quotations are plainly irrelevant for the issue of whether there have been Russian-
Georgian contacts on discrimination (see e.g., pp. 324-325, para. 8.73: ―On 2 March 2006,
Georgia reiterated in the Permanent Council its ‗readiness…to continue constructive dialogue
at all levels‘ and referred to detailed recent communications ‗initiated by the Georgian side‘
with Russia‖). 164
363
Delegation at the Special Permanent Council of the OSCE of 13 July 2004 )
shows that the Georgian complaints made by Georgia against Russia before
various organs of the OSCE concerned armed hostilities linked with the
secession of Abkhazia and South Ossetia, but does not mention racial
discrimination.
4.110 And nothing can be inferred from the robust Georgian assertion that ―[t]he
Russian Federation also made use of the OSCE forum and made over thirty
statements concerning the subject matter of the dispute‖ – an assertion supported
by no quotation and no document 36. Similarly, the reference to the ―EU
Statement on Georgia and the Batumi Conference‖ of 21 July 2005, which
welcomed ―the initiative of the Georgian government in hosting the international
conference in Batumi on 10 July 2005 to continue active cooperation in the
interest of political settlement of the Georgian-South Ossetian conflict‖ 365 has no
relation to the present alleged dispute: by its very nature, such a document could
not prove the existence of negotiations between Russia and Georgia on
questions of racial discrimination, and it does not even hint at that 366. And the
363
Annex 77, cited at GM, p.325, para. 8. 73. In this statement, Georgia blames Russia for: a
massive anti-Georgian campaign in the media and open support for separatist mood; attempts
to introduce ―illegal non-guided missiles‖ into the South Ossetia conflict zone; ―bellicose and
counter productive‖ statements, ―undermining the prestige of the OSCE‖; allowing ―Cossack
and Abkhaz mercenaries‖ enter the conflict zone. There is no mention of racial
discrimination.
364See GM, p.325, para. 8.74.
365
GM, Annex 79, referred to in GM, p.325, para. 8. 75.
366
Moreover, the EU Declaration is less appreciative of the Georgian behaviour than Georgia
would like the Court to think; among other things, Annex 79 says: ―In the process of political
settlement, active cooperation among all parties remains indispensable. The EU therefore
regrets that representatives from the South Ossetian region of Georgia did not participate in
the conference. We suggest that the results of the conference should be brought to the
attention of the authorities in South Ossetia and encourage them to participate in any further
initiatives‖; to the best of the knowledge of the Russian Federation, South Ossetian
representatives were simply not invited to attend the event. For its part, Russia is not
mentioned at all. 165
declarations of the United States representatives expressing ―concern at the
‗unilateral actions‘ of the Russian Federation‖, including ―activities that appear
367
to enhance the separate status of Abkhazia‖ or reiterating ―the concern that
368
Russia was openly siding with the de facto regimes‖ are equally manifestly
irrelevant for the present alleged dispute, even though they help in defining its
real scope.
4.111 Finally, with respect to the CIS documents presented by Georgia, two
remarks are in order:
a. In the first place, they mostly bear upon the question of the return of
refugees, and in no event on racial discrimination 369.
b. They also demonstrate that there was no dispute on these matters
between Georgia and Russia since, as rightly recalled by the Georgian
Memorial 370, those decisions were signed at the highest level by the
Representatives of both sides.
4.112 In reality, in the framework of the CIS as well as in the other international
fora dealt with in the Georgian Memorial, Russia was acting as a mediator or a
facilitator. This is evidenced with particular clarity in the decision of the Council
367
GM, pp. 324-325, para. 8.75, referring to GM, Annex 76.
368Ibid., p.325, referring to GM, Annex 83.
369See in particular the decision of The Council of the Inter-Parliamentary Assembly of the
Member States of the CIS of 28 February 1998 (GM, Annex 126) or the Decisions taken by
the Council of the Heads of States of the CIS: on further steps towards the settlement of the
conflict on Abkhazia, Georgia of 2 April 1999 (GM, Annex 127), on the presence of
Collective Peace Keeping Forces in the Conflict Zone of Abkhazia, of 1st March 2002 (GM,
Annex 117) or on the prolongation of the peacekeeping operation in the conflict zone in
Abkhazia of 2 October 2002 (Annex 133).
370
GM, p.327, para. 8.79. 166
of the Inter-Parliamentary Assembly of the Member States of the CIS decided
on 28 February 1998:
―To call upon the Parties to achieve substantive progress without further
delay towards a comprehensive settlement, first of all in the organized and
secure return of refugees and displaced persons to their places of
residence and the definition of the political status of Abkhazia, Georgia,
with the facilitation of the Russian Federation.‖371
4.113 And there is nothing strange in the fact that the mediator sometimes tends
to agree with one party rather than the other. Russia, for its part, actively
supported Georgia in the early years of the conflict 372. Thus, on 28 March 1997,
the Council of the Heads of States of the CIS adopted a decision, reproduced in
Annex 122 to the Georgian Memorial, reading as follows:
―The Council …,
[…]
Taking note of the Declaration of Lisbon Summit of the Heads of OSCE
member-States (December 1996) condemning the ―ethnic cleansing
resulting in mass destruction and forcible expulsion of predominantly
Georgian population in Abkhazia‖, as well as obstruction of the return of
refugees and displaced persons, […]
Condemning the position of the Abkhaz side obstructing the achievement
of agreement on political settlement of the conflict in Abkhazia, Georgia
and return of refugees and displaced persons to the places of their
residence, […]
The Council of Heads of States declares, that the member-states of the
Commonwealth of Independent States:
- will exert every effort to early and comprehensive political settlement of
the conflict in Abkhazia, Georgia, return of refugees and displaces
373
persons to their places of residence […].‖
371GM, Annex 126.
372See above, Chapter II, paras. 2.15, 2.19, 2.22
373
Slight mistranslations corrected. 167
This decision is a telling manifestation of the position that the CIS (including
Russia, and to a large extent led by it) was taking regarding the conflict at that
period. Far from revealing a Russian-Georgian dispute, this text shows that
Russia was condemning the acts of ethnic cleansing in Abkhazia.
4.114 The contacts between Georgia and Russia within the framework of
international organisations, or in other multilateral fora, call for the same
374
conclusion as that made above in respect of bilateral negotiations: there have
never been negotiations on the dispute now alleged by Georgia on the
application of the 1965 Convention on racial discrimination. And, more than
that, Georgia has never suggested that it was accusing the Russian Federation of
racial discrimination – until it lodged its Application before the Court on 12
August 2008.
2. Georgia has constantly acknowledged the positive role of Russia in
respect to the now alleged dispute
4.115 In reality, throughout the relevant period, Russia‘s role has been that of a
facilitator or a mediator. It is important to re-visit this point, already addressed
in Chapter II, as it is vital to the capacity in which Russia participated in
negotiations, of which it was not a principal party, in respect of conflicts where
it was not a party at all. The role of this third party is not clearly established in
international law, in the sense that it is not certain whether its mission is only to
provide good offices or also to suggest solutions, in the latter case the term
conciliator being maybe better suited. Moreover, the distinction is not set in
stone and a third party that initiates its mission as a mediator may move to
374See paras. 4.90-4.92. 168
conciliation. One thing is clear nevertheless: the facilitator / mediator /
conciliator is not a party to the dispute75.
4.116 This role of facilitator was acknowledged and welcomed by Georgia itself
on many occasions. For example :
―The international community has extended a helping hand to Georgia,
and I should like to convey our appreciation and gratitude to the
Governments of the United States of America, the Russian Federation,
Germany, other States members of the European Union and Turkey, to
name but a few, as well as to the United Nations and its specialized
agencies, for their invaluable assistance to my country in times of
hardship…
Convinced of the possibility of a fair solution under the auspices of the
United Nations, the Georgian Government has been negotiating with the
separatists in good faith all this time under the auspices of the Special
Representative of the Secretary-General, with the Russian Federation as
facilitator and the Conference on Security and Cooperation in Europe
(CSCE) as an observer. As a result, a number of agreements have been
signed, which are designed to promote the return of the displaced persons
to their homes and a settlement of the conflict…
The Russian Federation is an active participant in the process designed to
find a peaceful solution to the Abkhazian conflict. It has taken on a great
responsibility with regard to this peace process. We firmly believe that,
despite the feelings of some political groups, the Russian Federation, as a
great Power - and President Yeltsin, as the leader of that nation - does
indeed want to see a strong, stable, sovereign, united and friendly Georgia
on its southern border. Any other considerations would be contrary to
logic. We are gratified that in his address to this Assembly a few days ago
President Yeltsin alluded to this when he said that Russia‘s relations
towards other States members of the Commonwealth of Independent
States are based on good will and mutual benefit. In short, it is a time to
think not about the mistakes of the past, but about the possibilities for the
future‖376.
375
S. M. G. Koopmans, Diplomatic Dispute Settlement: The Use of Inter-State Conciliation,
T.M.C. Asser Press, 2008, 325 pages, p.26-27.
376U.N. General Assembly, 49th session, Official Records, 16th Meeting, U.N. Doc.
A/49/PV.16 (4 October 1994), Statement by Alexander Chikvaidze, Minister of Foreign
Affairs of Georgia, pp. 24-26. Annex 41. For similar statements made at other periods, see 169
4.117 In the same spirit, the Council of Heads of State of the Commonwealth of
Independent States,
“welcoming the resumption of direct bilateral talks between the Georgian
and Abkhaz sides and active assistance of the Russian Federation in this
process, …
5. … call[ed] on the member-states of the CIS …to participate more
actively in peacekeeping operation jointly with the Russian Federation
377
currently bearing the whole burden of responsibility for this operation” .
4.118 As already noted in Chapters II and III above, the international
community has also praised the role played by Russia and the CIS peace-
keeping forces:
―Welcoming the role of the United Nations Observer Mission in Georgia
(UNOMIG) and of the Collective Peacekeeping Forces of the
Commonwealth of Independent States (CIS peacekeeping force) as
stabilizing factors in the zone of conflict, noting that the cooperation
between UNOMIG and the CIS peacekeeping force is good, and stressing
the importance of continued close cooperation and coordination between
them in the performance of their respective mandates‖ 378.
e.g. the Yalta Declaration of the Georgian and Abkhaz Sides, 15-16 March 2001 (GM, Annex
132) or the Press conference of the Prime Minister of Georgia, Zurab Noghaideli, 13
December 2005, circulated at the meeting of the Joint Control Commission of 27-28
December 2005: ―Russia is the guarantor of long-term peace in the Caucasus; I think that the
recent steps of Russia will bring positive momentum into the relations between the two
countries‖ (emphasis added) (Annex 57).
377
Commonwealth of Independent States, Council of the Heads of State, Decision on
additional measures for the settlement of the conflict in Abkhazia, Georgia, 28 April 1998
(U.N. Security Council, Letter dated 5 May 1998 from the Permanent Representative of the
Russian Federation to the United Nations addressed to the Secretary-General, U.N. Doc.
S/1998/372, 5 May 1998). Annex 46.
378
Security Council, Resolution 1187 (1998). Similar acknowledgements can be found in
resolutions 1255 (1999), 1287 (2000), 1311 (2000), 1393 (2002), 1427 (2002), 1462 (2003),
1494 (2003), 1524 (2004), 1554 (2004), 1582 (2005), 1615 (2005). See also, e.g. PACE
Resolution 1363 (2004) ―Functioning of democratic institutions in Georgia‖, para. 12. 170
4.119 Georgia tries to present these statements as proof of negotiations on an
on-going dispute between itself and Russia on issues of racial discrimination.
Quite to the contrary, it is obvious that they acknowledge the role of the Russian
Federation in trying to mediate a conflict to which it is not a party.
4.120 Georgia, having positively asserted Russia‘s role as a facilitator, cannot
now change its mind and use these positions as evidence of negotiations on a
dispute related to the CERD. As was so clearly explained by Judge Alfaro in his
well-known Separate Opinion in the Temple case:
―This principle, as I understand it, is that a State party to an international
litigation is bound. by its previous acts or attitude when they are in
contradiction with its claims in the litigation. (...) The principle, not
infrequently called a doctrine, has been referred to by the terms of
―estoppel‖, ―preclusion‖, ―forclusion‖, ―acquiescence‖. (...)
Whatever term or terms be employed to designate this principle such as it
has been applied in the international sphere, its substance is always the
same: inconsistency between claims or allegations put forward by a State,
and its previous conduct in connection therewith, is not admissible
(allegans contraria non audiendus est). Its purpose is always the same: a
State must not be permitted to benefit by its own inconsistency to the
prejudice of another State (nemo potest mutare consilium suum in alterius
injuriam). A fortiori, the State must not be allowed to benefit by its
inconsistency when it is through its own wrong or illegal act that the other
party has been deprived of its right or prevented from exercising it (nullus
commodum capere de sua injuria propria. ) Finally, the legal effect of the
principle is always the same: the party which by its recognition, its
representation, its declaration, its conduct or its silence has maintained an
attitude manifestly contrary to the right it is claiming before an
international tribunal is precluded from claiming that right (venire contra
factum proprium non valet)‖ 37.
4.121 Georgia, which has praised Russia for its positive role as a facilitator,
cannot now take the exactly opposite position and allege a dispute on racial
379I.C.J., Judgment of 15 June 1962, Temple of Preah Vihear (Cambodia v. Thailand),
Separate Opinion of Vice-President Alfaro, Rep. 1962, pp. 39-40. 171
discrimination which it had never mentioned before, let alone negotiated with
the Respondent.
4.122 Moreover and in any case, Georgia has not fulfilled the other condition
included in Article 22 of the 1965 Convention since it has used none of the
possibilities offered by the CERD mechanism.
B. GEORGIA HAS NOT USED THE PROCEDURES
PROVIDED FOR BY THE CONVENTION
4.123 Here again, the burden of proof bears upon the Applicant State, which
could of course invoke no presumption that the condition has been fulfilled. 380
Georgia has made no attempt to prove that it has seised the CERD Committee:
there is not a word about this in Section II (Procedural Requirements for the
Submission of the Dispute to the Court) of Chapter VIII (Jurisdiction and
Procedural Requirements) of its Memorial. And that despite the fact that, by the
use of the plural – ―requirements‖- it implicitly admits that Article 22 contains
more than one prerequisite to the Court‘s seisin.
4.124 As shown in Section 1 of this Chapter, the phrase ―the procedures
expressly provided for in this Convention‖ reflects the inter-State complaint
procedure as settled in Articles 11 and 12 of the Convention 381. This
380
On a comparable pre-condition to its seisin, the Court considered that ―since this is a
condition formally set out in Article 29 of the Convention on Discrimination against Women,
the lack of agreement between the parties as to the organization of an arbitration cannot be
presumed. The existence of such disagreement can follow only from a proposal for arbitration
by the applicant, to which the respondent has made no answer or which it has expressed its
intention not to accept‖, Armed Activities on the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v. Rwanda, Rep. 2006, p.41, para. 92.
381
Supra, paras. 4.42-4.45. 172
382
interpretation is confirmed by the travaux préparatoires . Georgia has not
seised the CERD Committee before 12 August 2008, as the Court already
concluded in the Provisional Measures phase:
―Whereas Article 22 of CERD refers also to ―the procedures expressly
provided for‖ in the Convention; whereas, according to these procedures,
―if a State Party considers that another State Party is not giving effect to
the provisions of this Convention‖ the matter may properly be brought to
the attention of the Committee on the Elimination of Racial
Discrimination; whereas the Court notes that neither Party claims that the
issues in dispute have been brought to the attention of the Committee.‖ 383
384
The same remains true today .
* * *
4.125 When it withdrew its reservation to Article 22 of the Convention, Russia
accepted the jurisdiction of the Court under the conditions established in this
provision. This Article excludes the jurisdiction of the Court when no attempt
has been made to settle the dispute on the interpretation or application of the
Convention (when it exists) ―by negotiation or by the procedures expressly
provided for in this Convention‖. As shown in the present Chapter, none of
these essential, and cumulative, conditions has been fulfilled in the present case.
382Supra, paras. 4.46-4.50 and 4.63-4.72.
383
I.C.J., Order, 15 October 2008, Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation),
Provisional Measures, para. 116.
384The Committee on the Elimination of Racial Discrimination convenes twice a year for
sessions of three weeks‘ duration, normally in February and August at the United Nations
Office in Geneva. Its last sessions took place between 28 July - 15 August 2008, 16 February
- 6 March 2009 and 3 - 28 August 2009. TABLE 1
Compromissory clauses providing for preconditions
to the Court’s seisin
Case Compromissory clause The Court’s Analysis of the Clause
Article 26 of the Mandate for Palestine :
The Court focused on the duration of
PCIJ, Judgment, 30 August 1924, «The Mandatory agrees that, if any dispute whatever should arise between negotiations and on whether they
have reached a deadlock by the time
Mavrommatis Palestine the Mandatory and another Member of the League of Nations relating to of the Application. The existence of
Concessions Case (Jurisdiction), the interpretation or the application of the provisions of the Mandate, suchnegotiations was not disputed (Series
P.C.I.J., Series A, No. 2 dispute, if it cannot be settled by negotiation, shall be submitted to the A, No. 2, p.13).
Permanent Court of International Justice provided for by Article 14 of the
Covenant of the League of Nations.»
Article 7 of the Mandate for South West Africa :
ICJ, Judgment, 21 December The Court focused upon the fora for
1962, South West African Cases «The Mandatory agrees that, if any dispute whatever should arise between negotiations, and concluded that
within the multilateral fora of the UN,
(Liberia and Ethiopia v. South the Mandatory and another Member of the League of Nations relating to negotiations had reached a deadlock.
Africa), Preliminary Objections the interpretation or the application of the provisions of the Mandate, suchThe existence of negotiations was not
dispute, if it cannot be settled by negotiation, shall be submitted to the disputed (Reports 1962, pp. 344-346).
Permanent Court of International Justice.»
Article 19 of the Trusteeship Agreement for the Territory of the
ICJ, Judgment, 2 December 1963, Cameroons under British Administration : The Court, having rejected the
Northern Cameroons (Cameroon Application on admissibility grounds,
did not consider necessary to examine
v. United Kingdom), Preliminary «If any dispute whatever should arise between the Administering the jurisdiction conditions (Reports
Objections Authority and another Member of the United Nations relating to the 1963, pp. 34-38).
interpretation or application of the provisions of this Agreement, such 174
dispute, if it cannot be settled by negotiation or other means, shall be
submitted to the International Court of Justice, provided for in Chapter
XIV of the United Nations Charter.»
The Court established that the US had
tempted to negotiate and that
Article XXI, paragraph 2, of the Treaty of Amity, Economic Relations, negotiations faced a peremptory non
and Consular Rights of 1955 : volumus (Reports 1980, p.27, § 51).
ICJ, Judgment, 24 May 1980, Obs: this compromissory clause was
United States Diplomatic and «Any dispute between the High Contracting Parties as to the interpretation a subsidiary basis of jurisdiction.. The
Consular Staff in Tehran (United or application of the present Treaty, not satisfactorily adjusted by Court had already established that it
States of America v. Iran)
diplomacy, shall be submitted to the International Court of Justice, unless had jurisdiction under Article 1 of the
the High Contracting Parties agree to settlement by some other pacific Optional Protocols concerning the
means». Compulsory Settlement of Disputes
accompanying the Vienna
Conventions of 1961 and of 1963.
The Court established that the US
was aware that Nicaragua ―alleged
ICJ, Judgment, 26 November Article XXIV, paragraph 2, of the Treaty of Friendship, Commerce and that its conduct was a breach of
1984, Military and Paramilitary Navigation between the United States of America and Nicaragua: international obligations‖ (Reports
Activities in and against 1984, p.428, § 83).
Nicaragua (Nicaragua v. United «Any dispute between the Parties as to the interpretation or application of
States of America), Jurisdiction of the present Treaty, not satisfactorily adjusted by diplomacy, shall be Obs.: this compromissory clause was
the Court and Admissibility of the submitted to the International Court of Justice, unless the Parties agree to a subsidiary basis of jurisdiction. The
Application settlement by some other pacific means.» Court had already established that it
had jurisdiction under art. 36 para. 2
of the Statute.
ICJ, Advisory Opinion, 26 April Section 21, paragraph (a) of the Headquarters Agreement between the The Court focused on whether
1988, Applicability of the United Nations and the United States: negotiations have reached a deadlock
Obligation to Arbitrate under by the time of the Application. The 175
Section 21 of the United Nations «Any dispute between the United Nations and the United States existence of previous negotiations
Headquarters Agreement of 26 concerning the interpretation or application of this agreement or of any was not disputed. (Reports 1988, pp.
June 1947 supplemental agreement, which is not settled by negotiation or other 32-33).
agreed mode of settlement, shall be referred for final decision to a tribunal
of three arbitrators, one to be named by the Secretary-General, one to be
named by the Secretary of State of the United States, and the third to be
chosen by the two, or, if they should fail to agree upon a third, then by the
President of the International Court of Justice.»
Article XXVI of the Treaty of Friendship, Commerce and Navigation of 2
June 1948 between Italy and the United States :
ICJ, Judgment, 20 July 1989,
Elettronica Sicula S. p.A. (ELSI) «Any dispute between the High Contracting Parties as to the interpretation The jurisdiction of the Court was not
(United States of America v. Italy) or the application of this Treaty, which the High Contracting Parties shall disputed.
not satisfactorily adjust by diplomacy, shall be submitted to the
International Court of Justice, unless the High Contracting Parties shall
agree to settlement by some other pacific means.»
ICJ, Judgment, 27 February 1998, Article 14, paragraph 1, of the Montreal Convention :
Questions of Interpretation and
Application of the 1971 Montreal «Any dispute between two or more Contracting States concerning the The Court established that the
Convention arising from the interpretation or application of this Convention which cannot be settled negotiation and arbitration proposals
Aerial Incident at Lockerbie through negotiation, shall, at the request of one of them, be submitted to faced a non volumus from the
(Libyan Arab Jamahiriya v. arbitration. If within six months of the date of the request for arbitration Respondent (Reports 1998, p.122, §
United States of America), the Parties are unable to agree on the organization of the arbitration, any 20).
Preliminary Objections one of those Parties may refer the dispute to the International Court of
Justice by request in conformity with the Statute of the Court.»
ICJ, Judgment, 12 December Article XXI, paragraph 2, of the Treaty of Amity, Economic Relations, The fulfillment of the previous
1996, Oil Platforms (Islamic and Consular Rights of 1955 : conditions was not disputed and the
Republic of Iran v. United States «Any dispute between the High Contracting Parties as to the interpretation Court established their fulfillment.
of America), Preliminary or application of the present Treaty, not satisfactorily adjusted by (Reports 1996, pp. 809-810). 176
Objection diplomacy, shall be submitted to the International Court of Justice, unless
the High Contracting Parties agree to settlement by some other pacific
means ».
Article 29, paragraph 1, of the Convention on Discrimination against
Women :
«Any dispute between two or more States Parties concerning the
interpretation or application of the present Convention which is not The Court considered that neither of
settled by negotiation shall, at the request of one of them, be submitted to the preconditions was fulfilled
arbitration. If within six months from the date of the request for Reports 2006, pp. 40-41, §§87-91).
arbitration the parties are unable to agree on the organization of the
arbitration, any one of those parties may refer the dispute to the
ICJ, Judgment, 3 February 2006, International Court of Justice by request in conformity with the Statute of
Armed Activities on the Territory the Court.»
of the Congo (New Application: Article 75 of the WHO Constitution :
2002) (Democratic Republic of The Court considered that neither of
the Congo v. Rwanda), «Any question or dispute concerning the interpretation or application of
Jurisdiction of the Court and the preconditions was fulfilled
Admissibility of the Application this Constitution which is not settled by negotiation or by the Health (Reports 2006, p.43, §100).
. Assembly shall be referred to the International Court of Justice in
conformity with the Statute of the Court, unless the parties concerned
agree on another mode of settlement.»
Article XIV, paragraph 2, of the UNESCO Constitution:
The Court considered that neither of
«Any question or dispute concerning the interpretation of this the preconditions was fulfilled
Constitution shall be referred for determination to the International Court (Reports 2006, p.46, §108).
of Justice or to an arbitral tribunal, as the General Conference may
determine under its rules of procedure.»
Article 14, paragraph 1, of the Montreal Convention for the Suppression The Court considered that neither of 177
of Unlawful Acts against the Safety of Civil Aviation: the preconditions was fulfilled
(Reports 2006, p.49, §§117-118).
«Any dispute between two or more Contracting States concerning the
interpretation or application of this Convention which cannot be settled
through negotiation, shall, at the request of one of them, be submitted to
arbitration. If within six months from the date of the request for
arbitration the Parties are unable to agree on the organization of the
arbitration, any one of those Parties may refer the dispute to the
International Court of Justice by request in conformity with the Statute of
the Court.»
Article 30, paragraph 1 of the Convention against Torture:
ICJ, Order, 28 May 2009, «Any dispute between two or more States Parties concerning the
interpretation or application of this Convention which cannot be settled
Questions relating to the through negotiation shall, at the request of one of them, be submitted to The Court considered prima facie that
Obligation to Prosecute or arbitration. If within six months from the date of the request for the conditions were fulfilled (§§51-
Extradite (Belgium v. Senegal), arbitration the Parties are unable to agree on the organization of the 52).
Provisional Measures
arbitration, any one of those Parties may refer the dispute to the
International Court of Justice by request in conformity with the Statute of
the Court.» TABLE 2
Implementation mechanisms in universal human rights treaties
Monitoring Mandatory Optional Compromissory clause providing for ICJ
Treaty body inter-State inter-State complaint jurisdiction
provision complaint
International Art. 22
Any dispute between two or more States Parties
Convention on with respect to the interpretation or application of
the this Convention, which is not settled by
Elimination of negotiation or by the procedures expressly
All Forms of Art. 8 Art. 11
Racial provided for in this Convention, shall, at the
Discrimination request of any of the parties to the dispute, be
referred to the International Court of Justice for
decision, unless the disputants agree to another
(CERD) mode of settlement.
Art. 41
International A State Party to the present Covenant may at any
Covenant on time declare under this article that it recognizes
Civil and the competence of the Committee to receive and
Political Art. 28 consider communications to the effect that a State
Rights Party claims that another State Party is not
fulfilling its obligations under the present
(ICCPR) Covenant. Communications under this article may
be received and considered only if submitted by a
State Party which has made a declaration 179
recognizing in regard to itself the competence of
the Committee. No communication shall be
received by the Committee if it concerns a State
Party which has not made such a declaration.
International ECOSOC
Covenant on Resolution
Economic,
Social and 1985/17 of
Cultural 28 May No inter-State procedure
Rights 1985
(CESCR)
Article 29
1. Any dispute between two or more States Parties
Convention on concerning the interpretation or application of the
the present Convention which is not settled by
Elimination of negotiation shall, at the request of one of them, be
All Forms of
Discrimination Art. 17 No inter-State procedure submitted to arbitration. If within six months from
against the date of the request for arbitration the parties
Women are unable to agree on the organization of the
arbitration, any one of those parties may refer the
dispute to the International Court of Justice by
(CEDAW) request in conformity with the Statute of the
Court.
Convention Article 21 Article 30
against 1. A State Party to this Convention may at any 1. Any dispute between two or more States Parties
Torture and Art. 17 time declare under this article that it recognizes concerning the interpretation or application of this
Other Cruel, the competence of the Committee to receive and Convention which cannot be settled through
Inhuman or consider communications to the effect that a State negotiation shall, at the request of one of them, be 180
Degrading Party claims that another State Party is not submitted to arbitration. If within six months from
Treatment or fulfilling its obligations under this Convention. the date of the request for arbitration the Parties
Punishment Such communications may be received and are unable to agree on the organization of the
considered according to the procedures laid down arbitration, any one of those Parties may refer the
(CAT) in this article only if submitted by a State Party dispute to the International Court of Justice by
which has made a declaration recognizing in request in conformity with the Statute of the
regard to itself the competence of the Committee. Court.
No communication shall be dealt with by the
Committee under this article if it concerns a State
Party which has not made such a declaration.
Convention on
the Rights of
the Child Art. 43 No inter-State procedure
(CRC)
Article 76
Article 92
1. A State Party to the present Convention may at 1. Any dispute between two or more States Parties
International any time declare under this article that it concerning the interpretation or application of the
Convention on recognizes the competence of the Committee to present Convention that is not settled by
the Protection receive and consider communications to the effect negotiation shall, at the request of one of them, be
of the Rights that a State Party claims that another State Party is
of All Migrant not fulfilling its obligations under the present submitted to arbitration. If within six months from
Workers and Art. 72 Convention. Communications under this article the date of the request for arbitration the Parties
Members of may be received and considered only if submitted are unable to agree on the organization of the
arbitration, any one of those Parties may refer the
Their Families by a State Party that has made a declaration dispute to the International Court of Justice by
recognizing in regard to itself the competence of request in conformity with the Statute of the
(CMW) the Committee. No communication shall be Court.
received by the Committee if it concerns a State
Party which has not made such a declaration. 181
Article 42
Article 32 1. Any dispute between two or more States Parties
International A State Party to this Convention may at any time concerning the interpretation or application of this
Convention declare that it recognizes the competence of the Convention which cannot be settled through
for the Committee to receive and consider negotiation or by the procedures expressly
communications in which a State Party claims that provided for in this Convention shall, at the
Protection of another State Party is not fulfilling its obligationsrequest of one of them, be submitted to arbitration.
All Persons Art. 26 under this Convention. The Committee shall not If within six months from the date of the request
from Enforced receive communications concerning a State Party for arbitration the Parties are unable to agree on
Disappearance
which has not made such a declaration, nor the organization of the arbitration, any one of
(CED) communications from a State Party which has not those Parties may refer the dispute to the
made such a declaration. International Court of Justice by request in
conformity with the Statute of the Court.
Convention on
the Rights of
Persons with Art. 34 No inter-State procedure
Disabilities
(CRPD) CHAPTER V
THIRD PRELIMINARY OBJECTION:
THE COURT LACKS JURISDICTION RATIONE LOCI
Section I. Introduction
5.1 Georgia alleges that the Russian Federation violated obligations arising
under Articles 2, 3 and 5 of CERD through conduct that took place outside
Russia‘s territory. Hence in its submissions, it refers e.g. to ―the ethnic cleansing
of Georgians in South Ossetia‖, to ―the frustration of the right of return of
Georgians to their homes in South Ossetia and Abkhazia‖; and to ―the
destruction of Georgian culture and identity in South Ossetia and Abkhazia‖. 385
5.2 While focusing its case exclusively on conduct that occurred in Abkhazia
and South Ossetia, Georgia says relatively little about why Articles 2, 3 and 5 of
CERD should govern Russian conduct outside the territory of the Russian
Federation. Georgia‘s arguments are based, and indeed depend, at least first and
foremost, on a presumption of ―global application‖. Pursuant to this
presumption, obligations, unless specifically limited, would restrict States‘
conduct irrespective of its locus.
5.3 The thrust of Georgia‘s approach is clear from the opening lines of the
section in the Georgian Memorial on the ―spatial scope of Russia‘s obligations
under CERD‖, which begins with the following observation:
―The 1965 Convention does not contain a general provision imposing a
spatial limitation upon the obligations it creates.‖
385
GM, Part F, para. 1; emphasis added.
386GM, para. 8.10. 183
5.4 Georgia‘s approach fails to take account of the complexity of the spatial
application of obligations arising under treaties. Russia submits that the matter is
of crucial importance and cannot be addressed merely by relying on a
presumption that cannot be sustained. To the contrary, to clarify the spatial
scope of obligations, it is necessary to undertake a detailed examination of the
specific treaty provisions the breach of which has been alleged, i.e. Articles 2, 3
and 5 of CERD.
5.5 It appears that Georgia accepts this, or at least that is conveyed by
Georgia‘s decision to omit from its Memorial allegations of breach of Article 4
of CERD. That provision, which featured in its Application, is worded
restrictively in that it relates to the prohibition of organizations or the regulation
of public authorities or public institutions. It provides, as far as relevant:
―States Parties (…)
(a) Shall declare an offence punishable by law all dissemination of ideas
based on racial superiority or hatred, incitement to racial discrimination,
as well as all acts of violence or incitement to such acts against any race
or group of persons of another colour or ethnic origin, and also the
provision of any assistance to racist activities, including the financing
thereof;
(b) Shall declare illegal and prohibit organizations, and also organized
and all other propaganda activities, which promote and incite racial
discrimination, and shall recognize participation in such organizations or
activities as an offence punishable by law;
(c) Shall not permit public authorities or public institutions, national or
local, to promote or incite racial discrimination.‖387
5.6 If Georgia now no longer bases its claims on alleged breaches of Article 4
of CERD, this may be taken to suggest that it does not consider the provision to
387Emphasis added. 184
govern Russia‘s extraterritorial conduct. By implication, Georgia appears to
accept that in order to determine the spatial scope of an obligation arising under
CERD, it is required to proceed with an interpretation of its text, as well as its
context and drafting history.
5.7 Any such interpretation cannot, however, be undertaken in a legal
vacuum, but must take place against the background of the rules of general
international law governing the territorial application of treaty rules. These will
be outlined in the following section (Section II), and precede the interpretation
of the specific provisions of CERD on whose alleged breach Georgia bases its
case (Sections III – V).
Section II. General rules governing
the territorial application of obligations
5.8 In order to support its claim that Articles 2, 3 and 5 of CERD apply
extraterritorially, Georgia advances two inter-related arguments:
a. In Georgia‘s view, no territorial restriction is contained in either Article
2 or Article 5 of CERD. Both are, as the Georgian Memorial asserts with
respect to Article 2 (a) of CERD, ―capable of being applied by the State in
respect of any persons over which a State organ or agent exercises power,
whether or not the State has effective control over the area in which those
388
persons are present‖.
b. In Georgia‘s view, a specific territorial restriction would have been
required, as CERD ―does not contain a general provision imposing a
388GM, para. 8.16. 185
spatial limitation upon the obligations it creates‖ 389and, by implication,
such a limitation cannot be read into it.
5.9 Both arguments are unconvincing. The former will be rebutted through a
detailed interpretation of the text, context and purpose of Articles 2, 3 and 5 of
CERD, to be undertaken below. The latter invites a response of a more general
nature, as it is based on a fundamental misconstruction of the general principles
governing the territorial application of obligations. More specifically, there are
two alternative reasons for which Georgia‘s approach must be rejected:
a. Contrary to Georgia‘s assertion, obligations under CERD as a general
matter only apply on the territory of the States parties. This is in line with
the position of general international law, which provides that, unless
specifically indicated, treaty obligations apply only territorially.
b. In the alternative, should this Court hold that even in the absence of a
special clause to this effect, general international law provides for the
extraterritorial application of treaty obligations, instances of such
extraterritoriality would be exceptional, and the present case would not be
covered by any of the exceptions.
5.10 Accordingly, given that the Court‘s jurisdiction under Article 22 of
CERD, which is the only jurisdictional basis invoked by the Applicant, is
limited to deciding disputes ―with respect to the interpretation or application of
this Convention‖, the Court lacks jurisdiction ratione loci with regard to acts of
the Russian Federation which, allegedly, have taken place in either Abkhazia or
South Ossetia.
389GM, para. 8.10. 186
5.11 Before exploring both arguments, it must be stressed that the Court has
not so far decided them. The question of extraterritoriality was addressed by
390
both Parties during the interim stage of the present proceedings . The Court, in
its order on provisional measures of 15 October 2008, did not subscribe to
Russia‘s arguments that Articles 2 and 5 of CERD, not being applicable
extraterritorially, could not form the basis of an interim order of protection, but
instead found
―that these provisions of CERD generally appear to apply, like other
provisions of instruments of that nature, to the actions of a State party
when it acts beyond its territory‖. 391
5.12 However, that statement was phrased cautiously (―appear to‖) and was
made in the different context of provisional measures, in which the Court,
according to well-established jurisprudence,
―need not finally satisfy itself, before deciding whether or not to indicate
392
such measures, that it has jurisdiction on the merits of the case‖
but was merely required to assess whether
―the provisions invoked by the Applicant appear, prima facie, to afford a
basis on which the jurisdiction of the Court might be founded‖. 393
5.13 Thus, the finding above, therefore, did not, and indeed was not intended
to, dispose of the matter at hand. The Russian Federation respectfully submits
that at the current preliminary objections stage of the proceedings, in which the
Court is in a position to form a final view on the issue, having been fully
390
See e.g. CR 2008/22, pp. 26-28 (Crawford); CR 2008/23, pp. 40-42 (Zimmermann)
391Order of 15 October 2008, para. 109; emphasis added.
392Ibid., para. 85
393
Ibid. 187
informed of the parties‘ view on the matter, should uphold the Russian
objection.
5.14 Moreover, the preliminary objection that the Court‘s jurisdiction ratione
loci arising under Article 22 of CERD does not extend to alleged acts of the
Russian Federation beyond its own borders possesses an exclusively preliminary
character: it does not require an analysis of disputed facts and may accordingly
be decided without considering the merits of the case.
5.15 As the Court stated, in the recent Nicaragua v. Colombia case,
―In principle, a party raising preliminary objections is entitled to have
these objections answered at the preliminary stage of the proceedings
unless the Court does not have before it all facts necessary to decide the
questions raised or if answering the preliminary objection would 394
determine the dispute, or some elements thereof, on the merits.‖
A. IN THE ABSENCE OF A SPECIAL RULE TO THE CONTRARY,
OBLIGATIONS UNDER CERD APPLY TERRITORIALLY
5.16 Georgia‘s argument is flawed in that it suggests that territorial restrictions
of obligations have to be imposed 395. This however misconstrues the relationship
between the rule and the exception. Whenever international law envisages
instances of extraterritorial application of obligations, these instances are
394Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 13 December
2007, para. 51. See also Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America, ICJ Rep. 1986, at p. 31, para. 41; and further,
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, ICJ. Rep. 1998, pp. 27-29.
395
GM, paras. 8.10. and 8.13. 188
exceptions to the general rule, pursuant to which, as a matter of principle,
obligations apply only territorially.
1. The principle of territorial application
5.17 This ―principle of territorial application‖ is borne out by the treaty
practice of States and is also mirrored in the essentially territorial understanding
of the doctrine of jurisdiction.
5.18 As for international practice, few treaties expressly provide that
obligations contained in them should apply only territorially. However, a great
many treaties provide implicit support for the principle of territorial application
in that they contain clauses expressly regulating their spatial scope of
application and by extending this scope beyond a State‟s borders.
5.19 The various jurisdiction clauses found in human rights treaties such as
Article 2(1) ICCPR or Article 1 ECHR (which will be addressed further below)
are two examples in point.
5.20 The same is also true for certain disarmament treaties such as the
Chemical Weapons Convention. Its Article I (―General obligations‖) provides:
―2. Each State Party undertakes to destroy chemical weapons it owns or
possesses, or that are located in any place under its jurisdiction or
control, in accordance with the provisions of this Convention.
3. Each State Party undertakes to destroy all chemical weapons it
abandoned on the territory of another State Party, in accordance with the
provisions of this Convention.
4. Each State Party undertakes to destroy any chemical weapons
production facilities it owns or possesses, or that are located in any place 189
under its jur396iction or control, in accordance with the provisions of this
Convention.‖
5.21 Various environmental conventions also contain specific clauses
extending the scope of application to areas beyond the territory of the respective
contracting party. Thus, inter alia, the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal regulates
the transboundary movement of wastes and applies to any such movement
―from an area under the national jurisdiction of one State to or through an
area under the national jurisdiction of another State (…)‖ 397
5.22 International humanitarian law treaties also contain language that provides
for extraterritorial application, e.g. by providing for the applicability of the
Fourth Geneva Convention to occupied territories, thereby establishing that
these obligations arising under international humanitarian law have to be
complied with beyond the boundaries of the respective contracting party.
5.23 In addition, States have also seen fit to clarify the territorial scope of
application of specific obligations. With respect to CERD, Article 3 of CERD –
referring to the ―territories under their jurisdiction‖ – provides one example of
such a special clause. In line with its general approach, Georgia considers this
clause to have a restrictive effect. Yet, this reading does not take account of the
fundamental importance of Article 3 of CERD within the context of the
Convention. Rather than outlawing racial discrimination generally, the provision
condemns two qualified forms of racial discrimination, namely apartheid and
racial segregation.
396
Emphasis added.
397
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and
Their Disposal, Art. 2, para. 3; emphasis added. 190
5.24 The drafting history of the Convention indicates that these two practices,
and apartheid in particular, were considered a flagrant denial of the principle of
non-discrimination. In line with this understanding, it cannot credibly be argued,
that the rule against apartheid and racial segregation should have been
territorially restricted, whereas the general rule against racial discrimination in
all its forms should not.
5.25 While Georgia suggests that some States parties to the Convention were
cautious not to accept a duty of ―positive intervention in South Africa‖, 398this
concern was, as will be shown below, accommodated by adopting a narrow
understanding of the phrase ―territories under their jurisdiction‖.
5.26 As is well known, the interpretation of jurisdictional clauses such as
Article 1 ECHR, and the reach of their extraterritorial effects, has prompted
much debate. For present purposes, these debates can be left to one side. Instead,
it is important to reflect on why they were considered necessary in the first
place. The Russian Federation submits that their very existence undermines
Georgia‘s assertion that, unless territorially restricted, obligations applied
―globally‖. Quite to the contrary, the reason for States to insert such clauses into
specific treaties, or to include within a given treaty clauses governing the
extraterritorial application of specific provisions (such as Article 3 of CERD),
was to provide exceptions to the general rule pursuant to which obligations
arising under treaties, as a matter of principle, apply territorially only.
5.27 This understanding of the relationship between the rule (territoriality) and
the exception (extraterritoriality) is borne out by the Court‘s own jurisprudence.
While most scholarly attention has focused on instances of extraterritorial
application, the Court has clarified that these are exceptional and admitted only
398GM, para. 8.14. 191
when mandated by a specific treaty provision envisaging a broader geographical
scope of obligations.
5.28 In the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory Advisory Opinion, the Court confirmed that human rights
obligations apply ―primarily territorial[ly]‖ 39.
5.29 By implication, that approach was also adopted in the 2005 judgment in
the Congo-Uganda case. In that case, the Democratic Republic of the Congo
had inter alia accused Uganda to have ―incited ethnic conflict and took no steps
to put an end to such conflicts‖ 400 in the Ituri province. In response to that
allegation, the Court determined that a number of instruments in the field of
human rights were both applicable and relevant to these Ugandan acts 401. The
list of treaties fulfilling both criteria included the ICCPR and a number of other
universal and regional human rights agreements. It did not, however, include
CERD despite the fact that both the DRC and Uganda had been contracting
parties of CERD at all relevant points in time. This suggests that both parties to
a dispute, which Georgia would seemingly have qualified as a case ―with respect
to the interpretation or application of [the 1965] Convention‖, as well as the
Court itself, never considered CERD to govern a State party‘s conduct during
inter-ethnic conflicts taking place on foreign soil.
5.30 This reading (and this reading only) is in line with the essentially
territorial understanding of the doctrine of jurisdiction under international law.
399Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Reports 2004, at p. 179, para. 109.
400
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment of 19 December 2005, I.C.J. Reports 2005, at p. 240, para. 209.
401
Ibid., para. 217. 192
The link between the spatial scope of obligations and the notion of jurisdiction
was brought out with particular clarity in the judgment of the Grand Chamber of
the European Court of Human Rights in the case of Banković and others v
Belgium and others. 402 While that case concerned the interpretation of the
jurisdiction clause found in Article 1 ECHR, which did not refer to a State‘s
territory, it is still of particular relevance for the present proceedings. This is so
because the European Court of Human Rights sought to interpret Article 1
ECHR in the light of ―other principles of international law of which [the
Convention] forms part.‖ 403
5.31 This approach led the European Court of Human Rights to make
important findings of a general nature about the spatial scope of treaty
obligations under contemporary international law:
―[T]he Court is satisfied that, from the standpoint of public international
law, the jurisdictional competence of a State is primarily territorial. While
international law does not exclude a State‘s exercise of jurisdiction extra-
territorially, the suggested bases of such jurisdiction (including
nationality, flag, diplomatic and consular relations, effect, protection,
passive personality and universality) are, as a general rule, defined and
limited by the sovereign territorial rights of the other relevant States
(Mann, “The Doctrine of Jurisdiction in International Law‖, RdC, 1964,
Vol. 1; Mann, ―The Doctrine of Jurisdiction in International Law, Twenty
Years Later‖, RdC, 1984, Vol. 1; Bernhardt, Encyclopaedia of Public
International Law, Edition 1997, Vol. 3, pp. 55-59 ―Jurisdiction of
States” and Edition 1995, Vol. 2, pp. 337-343 ―Extra-territorial Effects of
Administrative, Judicial and Legislative Acts‖; Oppenheim‘s International
Law, 9 Edition 1992 (Jennings and Watts), Vol. 1, § 137; P.M. Dupuy,
Droit International Public, 4th Edition 1998, p. 61; and Brownlie,
th
Principles of International Law, 5 Edition 1998, pp. 287, 301 and 312-
314). (…)
402
Banković et al. v. Belgium et al., App. No. 52207/99, Eur. Ct. H.R. (2001), available at 41
ILM. 517.
403Ibid., para. 57. 193
The Court is of the view, therefore, that Article 1 of the Convention must
be considered to reflect this ordinary and essentially territorial notion of
jurisdiction, other bases of jurisdiction being exceptional and requiring
special justification in the particular circumstances of each case (see,
mutatis mutandis and in general, Select Committee of Experts on
Extraterritorial Criminal Jurisdiction, European Committee on Crime
Problems, Council of Europe, ―Extraterritorial Criminal Jurisdiction‖,
Report published in 1990, at pp. 8-30).‖
5.32 The reasoning of the European Court of Human Rights is important in that
it indicates that even in the presence of a jurisdiction clause not specifically
referring to State territory, treaty obligations apply ―essentially territorial[ly]‖.
5.33 As regards jurisdictional clauses found in many human rights treaties
(other than CERD), international jurisprudence and treaty practice confirms that
clauses referring to territory and/or jurisdiction are intended positively to extend
the spatial scope of obligations and thus to deviate from the general principle of
territoriality.
5.34 Thus, in the advisory opinion on the Israeli Wall, this Court recognised
that provisions of the International Covenant on Civil and Political Rights
governed Israeli conduct within the Occupied Palestinian Territories, but arrived
at this result through an interpretation of Article 2(1) ICCPR. Hence, the Court‘s
treatment of questions of extraterritoriality is preceded by a reference to
Article 2(1) ICCPR and draws on the crucial notion of ―jurisdiction‖ used in that
provision, which is interpreted to be ―primarily territorial‖, but ―may sometimes
404
be exercised outside the national territory.‖
5.35 Similarly, the jurisprudence of the Human Rights Committee, exploring
the possibility and limits of extraterritorial effects of the ICCPR, is based not on
404Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Adv. Op., ICJ Reports 2004, p. 178-179, para. 108 - 109. 194
general considerations, but is premised on the existence of a specific clause
envisaging the application of ICCPR obligations not only within the contracting
parties‘ territories, but also ―subject to [their] jurisdiction‖.
5.36 By way of illustration, this may be seen from the Human Rights
Committee‘s General Comment 31 (2004), which expressly draws on the
wording of Article 2 para. 1 ICCPR 405in order to justify the recognition of some
form of extraterritoriality. In the words of the Human Rights Committee,
―States Parties are required by article 2, paragraph 1, to respect and to
ensure the Covenant rights to all persons who may be within their territory
and to all persons subject to their jurisdiction. This means that a State
party must respect and ensure the rights laid down in the Covenant to
anyone within the power or effective control of that State Party, even if
not situated within the territory of the State Party‖. 406
5.37 Contrary to Georgia‘s argument, States invoking the extraterritorial
effects of treaty obligations cannot simply content themselves with noting the
absence of a restrictive clause. Rather, in light of the principle of territoriality,
they must positively establish the intention in favour of extraterritoriality.
Silence is not sufficient to bring about that result, but must be taken as intention
to apply the general rule, i.e. the principle of territoriality.
5.38 Whereas provisions like Article 2 ICCPR or Article 1 ECHR deviate from
the general rule and extend the spatial scope of obligations to territories beyond
405
Art. 2 para. 1 ICCPR provides:
1. Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.
406
Human Rights Committee, 18th session, General Comment No. 31: The Nature of the
General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, U.N.
Doc. CCPR/C/21/Rev.1/Add.13 (26 May 2004), para. 10, emphasis added. Annex 56. 195
a State‘s territory, treaties without such a clause follow the general principle of
territoriality, i.e. do not apply outside a State‘s territory. With respect to CERD,
this means that, unless mandated by an interpretation of the specific provisions
at hand, obligations enshrined by the Convention do not govern the
extraterritorial conduct of States.
2. The drafting history of CERD
5.39 This approach is also in line with the drafting history of CERD.
―Territorial issues‖ were discussed mainly with respect to non-self-governing
territories. However, these debates, while illustrating different understandings of
the concept of a State‘s territory, demonstrate an intention as to the essentially
territorial application of the Convention.
5.40 Already at an early stage, when the draft Convention was being discussed
at the Sub-Commission on Prevention of Discrimination and Protection of
Minorities of the then Commission on Human Rights, the representative of
Sudan, Mr. Mudawi, stated that
―[t]he draft convention should expressly state that those principles must be
407
applied to all Non- Self-Governing, trust and colonial territories.‖
5.41 This implies a contrario that he considered that the future Convention
would otherwise not apply to areas not forming part of the territory of a
Contracting party.
407
U.N. Economic and Social Council, Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, Summary record of the 407th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.407 (5 February 1964), p. 11; emphasis added. Annex
1. 196
5.42 While the inclusion of a so-called ―colonial clause‖ into CERD was later
rejected for political reasons, the debate confirms that it was taken for granted
that the Convention was thought to be applicable only to territories that a
contracting party was formally administering. As the delegate of Poland put it:
―His delegation was opposed to clause IV [i.e. the proposed ‗colonial
clause‘] because it appeared to some extent to indicate approval of the
existence of colonialism.‖ 408
He later continued, however:
―Such a possibility [of excluding the applicability of the Convention to
dependent territories] was contrary to the very nature of a convention on
the elimination of all forms of racial discrimination, the provisions of
which should be applicable equally to a contracting metropolitan State
409
and to all the territories administered or governed by it.”
5.43 This general perception was also shared by the delegate of Ghana, Mr.
Lamptey who stated:
―(…) the Polish representative had objected to the inclusion of the
territorial application clause on the ground that it (…) was furthermore
unnecessary since a binding international instrument applied to all the
410
territory of the contracting party, whether metropolitan or not (…)‖
5.44 The territorial scope of application is also brought out by Article 15(1)(a)
of CERD and the drafting history of this provision, which provides:
―(a) The Committee established under article 8, paragraph 1, of this
Convention shall receive copies of the petitions from, and submit
expressions of opinion and recommendations on these petitions to, the
bodies of the United Nations which deal with matters directly related to
408U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1358th meeting, U.N. Doc. A/C.3/SR.1358 (29 November 1965), p.398, para. 14. Annex 17.
409
Ibid., p. 399, para. 16.
410
U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1363rd meeting, U.N. Doc. A/C.3/SR.1363 (3 December 1965), p. 433, para. 28. Annex 18. 197
the principles and objectives of this Convention in their consideration of
petitions from the inhabitants of Trust and Non-Self-Governing
Territories and all other territories to which General Assembly resolution
1514 (XV) applies, relating to matters covered by this Convention which
are before these bodies;‖
5.45 On the one hand, the right of petition is limited to the inhabitants of the
territories mentioned, which in turn sheds light on the understanding of the term
―jurisdiction‖ as used in Article 14 of CERD. What is more, the drafting history
confirms that the idea underlying Article 15 of CERD was to extend to those
populations the substantive rights which were otherwise granted by CERD,
which rights themselves were perceived as being limited to the inhabitants of
metropolitan territories.
5.46 As the representative of Nigeria, Mrs. Aguta, put it:
―Paragraph 2 [of draft Article 15 of CERD] simply extended to
inhabitants of colonial countries the safeguard of fundamental rights
which other articles of the Convention provided for inhabitants of
independent countries the world over, but through a special body
competent to give an opinion on questions of human rights.‖ 411
3. Interim conclusions
5.47 To summarise, the fact that CERD does not contain a general clause
governing the territorial scope of obligations does not support Georgia‘s
argument on extraterritoriality. Quite to the contrary, general international law
lays down a principle of territoriality, which provides that, unless specifically
indicated, treaty obligations apply only territorially. In the absence of a general
411U.N. General Assembly, 20th session, Official Records, Third Committee, Record of the
1368th meeting, U.N. Doc. A/C.3/SR.1368 (8 December 1965), p. 458, para. 14, emphasis
added. Annex 20. 198
clause governing the treaty‘s territorial scope, obligations under CERD cannot
be presumed to apply extraterritorially.
B. IN THE ALTERNATIVE,
SHOULD OBLIGATIONS UNDER CERD BE CAPABLE OF APPLYING
EXTRATERRITORIALLY, THE REQUIREMENTS OF SUCH
APPLICATION ARE NOT FULFILLED
5.48 In the alternative, should this Court hold that even in the absence of a
treaty provision extending the spatial scope of obligations, general international
law provides for the extraterritorial application of treaty obligations, instances of
such extraterritoriality would be exceptional, and the present case would not be
covered by any of the exceptions.
5.49 Any assessment of a general legal standard is rendered difficult by the
heterogeneity of treaty clauses and treaty language. Should this Court hold that
notwithstanding that heterogeneity, general international law recognises
exceptions to the principle of territoriality, these exceptions must be construed
narrowly. Two arguments support such an approach:
a. International practice, insofar as it is said to support a more liberal
approach to the question, is typically treaty-specific, i.e. it interprets the
specific jurisdictional clause of a given treaty. This may be illustrated by
reference to General Comment 31 (2004) adopted by the Human Rights
Committee, which, rather than endorsing a general position, put forward a
412
specific interpretation of Article 2 para 1 ICCPR. As noted above, the
Grand Chamber judgment in the Bankovic case presents one of the few
exceptions to this general rule, as it specifically draws on the position of
412See supra para. 5.36. 199
general international law – but does so in order to justify a restrictive
interpretation of a treaty-based jurisdiction clause.
b. What is more, even instances of international practice or jurisprudence
frequently cited in support of some form of extraterritoriality almost
inevitably qualify extraterritoriality as the exception to the recognised
rule. In this respect, it suffices to refer again to the Court‘s statement, in
the Wall opinion, pursuant to which human rights treaties apply ―primarily
territorial[ly]‖3, or to the Grand Chamber‘s reiteration, in Bankovic, of
the ―essentially territorial‖ scope of human rights obligations.
5.50 As for potential general exceptions, two types of extraterritoriality are
commonly discussed: first, acts taken by a State's diplomatic and consular
authorities on foreign soil, and second the effective overall control of a territory.
Neither of these scenarios fits, indeed not even prima facie, the present case. For
obvious reasons, this case does not involve questions of diplomatic or consular
activity abroad. More importantly, the Russian Federation has never, and does
not currently, exercise effective control over territories on which, according to
Georgia‘s assertions, breaches of CERD have taken place.
5.51 A glance at the Court‘s jurisprudence reveals that it has accepted
arguments based on ―effective control‖ only in very narrowly defined scenarios,
and, in particular, in situations of belligerent occupation. This specifically
applies to the Wall opinion, in which human rights treaties (and namely those
concerning a jurisdiction clause) were said to apply to the West Bank. As the
Court repeatedly observed, this result was based on the intensive and
longstanding control exercised by Israel with regard to the Occupied Palestinian
413Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Adv. Op., ICJ Reports 2004, at p. 179, para. 109. 200
Territories, which amounted to and was recognized as constituting belligerent
414
occupation.
5.52 By the same token, in Congo-Uganda, the Court‘s findings on Uganda‘s
human rights violations on Congolese territory were premised on the special role
of occupying powers. As the Court observed at the beginning of the section on
potential human rights violations, it thought it ―essential‖ first to
―consider the question as to whether or not Uganda was an occupying
Power in the parts of Congolese territory where its troops were present at
the relevant time.‖ 415
It was only after it had answered that question in the affirmative, that the Court
held that Uganda was required
―to secure respect for the applicable rules of international human rights
law‖. 416
Crucially, that finding (requiring Uganda to secure respect for human rights) did
not result from any extraterritorial application of human rights treaties as such,
but was based on the determination that Uganda had acted as an occupying
power 417.
414Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Reports 2004, at p. 167, 172, 178-179, paras. 78, 89, 108, 109.
415
Democratic Republic of Congo (DRC) v. Uganda, Judgment of 19 December 2005, ICJ
Rep. 2005, at p. 227, para. 166.
416Ibid., para. 178.
417
In fact, this was made express in the judgment:
―The Court thus concludes that Uganda was the occupying Power in Ituri at the relevant time.
As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907,
to take all the measures in its power to restore, and ensure, as far as possible, public order and
safety in the occupied area (…)‖, ibid., at p. 231, para. 178, emphasis added. 201
5.53 Even if one were to find otherwise and also consider CERD to apply to
situations not amounting to belligerent occupation, one would have to, at the
very least, require effective overall control by the contracting party of CERD
concerned in order to trigger the extraterritorial applicability of CERD, if ever
there was such at all, quod non.
5.54 This was admitted by Georgia itself when it asked the Court, during the
proceedings on provisional measures, to order such measures in areas
418
―under the effective control of the Russian Federation‖.
It should be stressed that this ―effective control‖ test was developed on the basis
of treaties that, unlike CERD, contain a general provision envisaging at least
some degree of extraterritorial application. Even under such circumstances,
however, international jurisprudence has applied a strict standard.
5.55 Thus, the Human Rights Committee has interpreted the jurisdictional
clause contained in Art. 2 para. 1 of the Covenant as only extending to all
419
persons within the power or effective control of the States Party concerned .
5.56 Similarly, the European Court of Human Rights found in Loizidou that
―the responsibility of a Contracting Party may also arise when as a
consequence of military action - whether lawful or unlawful - 420exercises
effective control of an area outside its national territory.‖
418
See Amended Request, para. 23.
419Human Rights Committee, General Comment No. 31. See para. 5.36 above.
420
European Court of Human Rights, Application No. 15318/89 (Loizidou v. Turkey),
judgment on preliminary objections of 23 March 1995, Series A No. 310, para. 62; emphasis
added. 202
5.57 This suggests that, if indeed, effective overall control over territory can
trigger the application of human rights obligations (in the absence of a specific
jurisdiction clause to this effect contained in the treaty concerned), then this
would only apply to instances of belligerent occupation or to situations where
the State concerned has exercised effective control with regard to the territory in
question.
5.58 This approach is also in line with the practice of the CERD Committee
established to monitor compliance with the 1965 Convention. While the
Committee, in exceptional cases, has inquired whether State parties have
complied with obligations under CERD outside their State territory, it has done
so only in cases of complete and semi-permanent factual control over territory.
5.59 This notably applies to those aspects of the Committee‘s reports on Israel
which address the situation in the Palestinian territories. For example, in its
concluding observations on Israel‘s fifth and sixth periodic reports, the
Committee was critical of Israel‘s decision to ―describe[e] the situation only
within the State of Israel itself‖. 421 Yet, this comment merely covered
compliance with Article 3 of CERD, which, as will be shown, expressly refers to
―territories under jurisdiction‖. What is more, the Committee indicated that it
was concerned not with a general standard of factual control, but specifically
inquired into the situation ―in the occupied territories‖.422
421U.N. General Assembly, 46th session, Official Records, Supplement No.18, Report of the
Committee on the Elimination of Racial Discrimination, U.N. Doc A/46/18 (1992), para. 368.
Annex 26.
422
Ibid. 203
5.60 By the same token, the Committee‘s decision to address compliance with
423
CERD in the Panama Canal Zone or the Golan Heights, admits of no
generalisation, as both the Golan Heights and the Panama Canal Zone were
under a special territorial regime (occupation on the one hand, territorial lease
on the other), which not only prescribed the powers and responsibilities of an
outside State in express terms, but which were also under the complete de facto
control of the State concerned.
5.61 On that basis, even if a general exception to the territoriality principle is
admitted under CERD, it would not cover the present case. The reason for this is
that Russia‘s presence in either Abkhazia or South Ossetia cannot, even prima
facie, be qualified as either one of belligerent occupation or as one of effective
control over the territories concerned, whether before, during or after the
outbreak of hostilities.
5.62 As the Court observed in the recent Congo-Uganda case,
―under customary international law, as reflected in Article 42 of the
Hague Regulations of 1907, territory is considered to be occupied when it
is actually placed under the authority of the hostile army, and the
occupation extends only to the terri424y where such authority has been
established and can be exercised‖.
5.63 For that to be the case, it would not be sufficient to show that Russian
troops were stationed in foreign territory, but that they had in fact, to paraphrase
423
For a recent instance see e.g. Committee on the Elimination of Racial Discrimination, 70th
session, Consideration of reports submitted by States Parties under Article 9 of the
Convention, Concluding Observations of the Committee on the Elimination of Racial
Discrimination: Israel, U.N. Doc. CERD/C/ISR/CO/13 (14 June 2007), para. 32 (Annex 66);
for comment on the Committee‘s earlier practice see T. Buergenthal, ―Implementing the UN
Racial Convention‖, 12 Texas International Law Journal (1977), 187.
424
Democratic Republic of Congo (DRC) v. Uganda, Judgment of 19 December 2005, ICJ
Rep. 2005, at p. 229, para. 172. 204
the Court, ―substituted their own authority for that of the [territorial]
Government‖. 425
5.64 Situations of belligerent occupation moreover need to be distinguished
from other instances of military presence, notably the stationing of a limited
number of troops in accordance with an agreed international mandate. In
particular, peacekeeping troops deployed in accordance with the Charter of the
United Nations, by either the United Nations themselves, a regional organization
or individual States do not qualify as occupying powers within the meaning of
applicable rules of international humanitarian law.
5.65 In the present case, the presence of Russian forces on the ground in
Abkhazia and South Ossetia could at no point in time be qualified as one of
belligerent occupation. This is true for the whole period ever since the ―dispute‖
alleged by Georgia had arisen. As a matter of fact, until the outbreak of
426
hostilities on 7 August 2008, and as demonstrated above , Russian forces were
present in Abkhazia and South Ossetia as part of international efforts to monitor
the conflicts between Georgia on the one hand, and Abkhazia and South Ossetia
on the other.
5.66 Their presence was expressly envisaged by international agreements such
as the Sochi Agreement of 14 July 1992, which put in place a peacekeeping
operation in South Ossetia, consisting of a Joint Control Commission and joint
Russian – Georgian – South Ossetian peacekeeping forces. In Abkhazia,
Russia‘s military presence was equally authorised by international agreements
and expressly consented to by Georgia (as well as endorsed by the Security
Council).
425
Ibid., para. 173.
426See Chapter II above. 205
5.67 This shows that, rather than amounting to belligerent occupation, the
Russian presence in Abkhazia and South Ossetia prior to 8 August 2008 was in
line with the international community‘s efforts at conflict resolution and
repeatedly endorsed by international organisations such as the United Nations
427
and the OSCE .
5.68 Besides, given the limited number of merely 2500 servicemen in
Abkhazia and 1000 servicemen in South Ossetia and their limited peace-keeping
mandate, the Russian peace-keeping forces could not be considered to have
exercised effective control as to the territory of Abkhazia or South Ossetia. The
situation is notably dissimilar to, for example, Israel on the Golan Heights or the
United States in the Panama Canal zone.
5.69 This is also confirmed by a comparison with the 30,000 - 40,000 Turkish
troops stationed in the northern part of Cyprus (which besides are stationed
throughout the whole of the respective territory and constantly patrol all lines of
communications).
5.70 While the outbreak of hostilities on 7 August 2008 forced the Russian
Federation temporarily to increase its military presence in the region in order to
defend its peace-keeping contingent against attacks by Georgian troops, it did
not, at any point in time, lead to effective control over the area.
5.71 For one, the number of troops deployed in Abkhazia and South Ossetia,
when compared to other instances such as the northern part of Cyprus, was at all
relevant times, i.e. prior to the seising of the Court on 12 August 2008, so
limited that no effective control could be exercised, and indeed no such control
427For details see Chapters II, III and IV above. 206
was ever exercised over the two territories by the Russian Federation. Besides,
those troops that entered the territory on 8 August 2008, were actively involved
in combat activities against the illegal Georgian offensive which again excludes
any ability to exercise effective control and even less be an occupying power.
5.72 Immediately after the end of hostilities, all the additional forces started to
withdraw. Both Abkhazia and South Ossetia requested the continued presence of
a limited number of Russian troops on their territory, on which issue bilateral
agreements have been concluded, 428circumscribing the limited functions those
troops may exercise. The number (approximately 2500 in each Republic),
functions and role of the Russian troops present exclude any ability of the
Russian Federation to exercise overall effective control in either Abkhazia or
South Ossetia, even if the Court were to find, quod non, that the situation after
the seisin of the Court would be of relevance.
5.73 It follows that Russia‘s presence at no point in time could be perceived as
either constituting belligerent occupation or as leading to effective overall
control by the Russian Federation with regard to either Abkhazia or South
Ossetia. This suggests that even if a general exception to the territoriality
principle is admitted for situations of either belligerent occupation or effective
control over a given territory, quod non, any such exception would not, even
prima facie, cover the present case.
5.74 Further, this interpretation of the legal situation is confirmed by the
practice of the Committee on the Elimination of Racial Discrimination.
428See Report of the Russian Federation on compliance with the provisional measures
indicated by the Order of the Court of 15 October 2008, 8 July 2009. 207
5.75 When dealing with the Russian reports submitted pursuant to Article 9 of
CERD, the Committee on the Elimination of Racial Discrimination has never
considered CERD as applicable vis-à-vis the Russian Federation as far as
concerns the situation in Abkhazia or South Ossetia. Even during the
consideration of the latest report submitted by the Russian Federation, which the
Committee on the Elimination of Racial Discrimination discussed and finally
429
adopted after Georgia had commenced hostilities, i.e. on 13 August 2008, the
situation in Abkhazia and South Ossetia was not raised by any of the members
of the Committee and even less mentioned in its concluding observations.
5.76 This silence is all the more revealing in that the discussion of Russia‘s
report took place on 31 July and 4 August 2008, i.e. only days before the
outbreak of hostilities, and since the concluding observations were adopted on
13 August 2008, i.e. just after the hostilities ended.
5.77 Given the prominence of the Russo-Georgian conflict in August 2008, it
is inconceivable that the Committee‘s approach should have been based on an
oversight. At a time when all attention was focused on the conflict, the treaty
body entrusted with monitoring compliance with CERD found CERD to be of
no relevance to the ongoing military conflict. In Russia‘s submission, there
could be no clearer indication that CERD did not govern its conduct in South
Ossetia and/or Abkhazia.
429See U.N. General Assembly, 63rd session, Official Records, Supplement No. 18, Report of
the Committee on the Elimination of Racial Discrimination, U.N. Doc. A/63/18 (1 November
2008) (Annex 72), at para. 350:
―The Committee considered the combined eighteenth and nineteenth periodic reports of the
Russian Federation (CERD/C/RUS/19) at its 1882nd and 1883rd meetings (CERD/C/SR.1882
and 1883), held on 31 July and 4 August 2008. At its 1897th and 1898th meetings
(CERD/C/SR.1897 and 1898), held on 13 August 2008, the Committee adopted [its]
concluding observations.‖ (emphasis added) 208
5.78 Finally, as has been discussed in more detail elsewhere, 430 this
interpretation is corroborated by the fact that neither Georgia nor any individual
has brought proceedings against Russia for breaches of CERD in relation to the
situation in Abkhazia or South Ossetia, either before or after the outbreak of
hostilities. Georgia could have, at any time after becoming a contracting party of
CERD, availed itself of the mandatory mechanism of inter-State complaints
envisaged in Article 11 of CERD, while individuals could have brought
complaints against the Russian Federation under Article 14 of CERD from 1
October 1991 onwards, i.e. the date on which the Soviet Union declared its
willingness to accept individual complaints.
5.79 Both factors – the silence of the CERD Committee when considering
Russia‘s Report and the lack of individual and inter-State complaints – can be
explained in different ways: they may be taken to indicate that (as explained in
Chapter III above) the dispute currently before the Court is not a dispute about
the interpretation and application of CERD, or that (as explained in the
preceding paragraphs) the obligations in question do not govern Russia‘s
extraterritorial conduct in Abkhazia and South Ossetia. On either reading, both
factors undermine Georgia‘s attempt to institute proceedings before this Court
on the basis of Article 22 of CERD.
5.80 The conclusion that CERD does not apply extraterritorially and that, more
specifically, it does not cover acts of the Russian Federation having occurred in
either Abkhazia or South Ossetia is also further supported by analysis of those
specific provisions of CERD allegedly violated by the Russian Federation in the
context of the Georgian – Abkhazian/ South Ossetian context, namely Articles
2, 3 and 5 of CERD.
430See above, Chapter III, para. 3.51. 209
Section III. Article 2, para. 1, lit. a), b) and d) of CERD
does not apply extraterritorially
5.81 The different obligations listed in Article 2, para. 1, lit. a), b) and d) of
CERD are phrased as obligations to be implemented within the territory of each
contracting party.
A. ARTICLE 2, PARA. 1, LIT. A) OF CERD
5.82 Article 2, para. 1, lit. a) of CERD requires each State Party
―to ensure that all public authorities and public ins431utions, national and
local, shall act in conformity with this obligation ‖,
i.e. shall not engage in racial discrimination. The very purpose of this provision,
as demonstrated by its drafting history, was to bring autonomous entities such as
(for example State) railways, power or port authorities and local cultural
institutions within the reach of the Convention 432. Any such entities, however,
are by their very nature, of a localized nature, i.e. do not perform acts beyond
the borders of the State concerned. This confirms that Article 2 of CERD was
meant only to cover acts within the territory of the respective State.
431Emphasis added.
432See Statement by Mr. Caportorti, U.N. Economic and Social Council, Commission on
Human Rights, Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Summary record of the 417th Meeting, U.N. Doc. E/CN.4/Sub.2/SR.417 (5
February 1964), p. 4. Annex 2. See also N. Lerner, ―The U.N. Convention on the Elimination
of All Forms of Racial Discrimination‖ (2nd. ed. 1980), p. 37. 210
5.83 It is thus surprising, to say the least, to argue that e.g. ―local institutions‖
could apply to the obligation contained in Article 2, para. 1, lit. a) of CERD
433
extraterritorially, as argued by Georgia . Rather the reference to ―local
institutions‖ confirms the localized character of the obligations contained in this
provision. Even less can it be argued that Article 2, para. 1, lit. a) of CERD
could be applied extraterritorially where the State concerned does not even
exercise effective control over the respective area.
5.84 It may be also noted in passing that Article 2, para. 1, lit. c) of CERD
similarly refers to the review of ―governmental, national and local policies‖ 43,
which formula suggests the absence of any form of extraterritorial applicability
of Article 2 of CERD. It is telling that the Georgian Memorial does not mention
this provision.
B. ARTICLE 2 PARA. 1 LIT. B) OF CERD
5.85 Article 2, para. 1, lit. b) of CERD provides:
―(b) Each State Party undertakes not to sponsor, defend or support racial
discrimination by any persons or organizations;‖
5.86 In his commentary on the Convention, Natan Lerner describes the content
of this provision as follows:
―(…) sub-paragraph (b) simply intends to prevent persons or
435
organizations from getting the official support of the State‖
433GM, para. 8.16.
434
Emphasis added.
435
N. Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination
(2nd. ed. 1980), p. 37; emphasis added. 211
which State is the territorial State where the persons or organizations to be
supported are located.
5.87 He then continues:
―Thus, for instance, an official publishing house that prints a racist book,
or a local government that gives financial support to a school engaging in
racial discrimination, would be violating sub-paragraph (b)‖,
both of which are again obviously located on the territory of the respective
contracting party.
5.88 The proponents of what was to become Article 2, para. 1, lit. b) of
436
CERD had not even hinted at the possibility of this proposed new provision
being applied beyond the borders of the respective Contracting Party. Rather,
Article 4, lit. c) of CERD, the content of which is similar in nature to that of
Article 2, para. 1, lit. b) of CERD and which provides that States Parties
―[s]hall not permit public authorities or public institutions, national or
local, to promote or incite racial discrimination‖
was considered during the drafting of the Convention as similarly containing
merely an
―obligation assumed by the State to take the necessary steps to prevent
individuals and institutions within its territory from practising such
discrimination.‖ 437
436U.N. General Assembly, 20th session, Official Records, Annexes, Report of the Third
Committee, U.N. Doc. A/6181 (18 December 1965), p. 18, paras. 45 – 46. Annex 23.
437
U.N. Economic and Social Council, Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, Summary record of the 422nd
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.422 (10 February 1964), p. 11 (Capotorti). Annex 3. 212
5.89 This lack of extraterritorial reach of Article 2, para. 2, lit. b) of CERD is
also brought out by the usage of the term ―defend/ defender‖. This term, which
was used to replace the broader term ―advocate‖ in an earlier Brazilian proposal
for what was to become Article 2, para. 1, lit. b) of CERD 438, implies that the
respective State might be in a position to shield racial discrimination committed
by private individuals or organizations from criminal prosecution by way of
legislation, which it may only do on its own territory.
5.90 Similar considerations apply with regard to Article 2, para. 1, lit. d) of
CERD.
C. ARTICLE 2, PARA. 1, LIT. D) OF CERD
5.91 Article 2, para. 1, lit. d) of CERD provides:
―(d) Each State Party shall prohibit and bring to an end, by all appropriate
means, including legislation as required by circumstances, racial
439
discrimination by any persons, group or organization; ―
5.92 According to the far-reaching interpretation of Article 2, para. 1 lit. d) of
CERD Georgia proposes, any one of the by now 173 contracting parties of
CERD would be under an obligation to prohibit and bring to an end racial
discrimination abroad and for that purpose enact legislation with extraterritorial
reach regardless of any nexus with the respective acts entailing racial
discrimination.
438
U.N. General Assembly, 20th session, Official Records, Annexes, Report of the Third
Committee, U.N. Doc. A/6181 (18 December 1965), p. 18, paras. 45 – 46. Annex 23.
439Emphasis added. 213
5.93 Yet a reading of Article 2, para. 1, lit d) of CERD in line with customary
methods of interpretation must lead to the result that it is limited to acts of racial
discrimination taking place on the territory of the respective contracting party. It
is only on a State`s own territory and with regard to that territory that a State
may prohibit racial discrimination and that it may enact legislation.
5.94 The practice of the Committee on the Elimination of Racial
Discrimination that Georgia refers to in its Memorial with regard to Article 2,
para. 1, lit. d) of CERD, i.e. para. 543 of the report on the implementation of
CERD by the Federal Republic of Yugoslavia (Serbia and Montenegro)
containing the concluding observations adopted during the Committee‘s 1012th
meeting, held on 20 August 1993 440, contains recommendations linked to the
domestic situation in the Federal Republic of Yugoslavia (Serbia and
Montenegro). This may be derived from the fact that the Committee, in the
paragraph immediately preceding para. 543, deals generally with issues of
territorial integrity, while the following paragraph 544 then deals with the
situation in Kosovo which then undoubtedly formed part of the Federal Republic
of Yugoslavia (Serbia and Montenegro).
5.95 It is thus misleading to refer to para. 543 of the above-mentioned report of
the Committee on the Elimination of Racial Discrimination as an indication of
practice of the Committee supporting an extraterritorial application of Article2,
par. 1, lit. d) of CERD.
* * *
5.96 In short, the general content of Article 2 of CERD, as well as the specific
provisions of Article 2 of CERD, lead to the conclusion that both Article 2 of
440See GM, para. 9.65. 214
CERD generally, as well as the specific sub-paragraphs thereof do not apply in
an extraterritorial context.
5.97 The same is true, mutatis mutandis, for Article 5 of CERD, since, given its
wording and content, it does not apply beyond the national borders of the
respective contracting party.
Section IV. Article 5 of CERD does not apply extraterritorially
5.98 Before analysing the content of Article 5 of CERD, it should first be
mentioned that Georgia has not been able to specify which of the rights
enumerated or referred to in Article 5 of CERD it alleges have been specifically
441
violated by acts allegedly attributable to the Russian Federation. This makes it
difficult, if not impossible, for the Respondent to deal fully with the
jurisdictional questions arising in that regard.
5.99 Yet, given that Georgia has focused on the rights and freedoms of
refugees and displaced persons, Russia will also focus on this specific aspect of
Article 5 of CERD.
5.100 It is true that, as submitted by the Applicant, Article 5 of CERD does not
contain a specific clause regulating the geographical scope of application of this
provision. This fact, however, as demonstrated above, militates in favour of
limiting its scope of application ratione loci to the territory of the contracting
party concerned rather than extending it 44.
441
See GM, paras. 9.20 et seq.
442See supra para. 5.18 et seq. 215
5.101 It must also be noted that Article 5 of CERD, by underlining that States
parties, implementing Article 5 of CERD, must act in compliance with the
fundamental obligations laid down in Article 2 of CERD, is not intended to
impose obligations upon contracting parties that extend beyond Article 2 of
CERD. Rather, it requires States to implement those obligations arising under
Article 5 of CERD, themselves rooted in Article 2 of CERD, in a certain specific
manner.
5.102 Accordingly, Article 5 of CERD by the same token also refers, embraces
and includes the geographical limitations contained in Article 2 of CERD itself.
The geographical scope of this latter provision (i.e. Article 2 of CERD) and
accordingly also the Court‘s jurisdiction arising under Article 22 of CERD itself
is however, as was demonstrated above 443, limited to acts occurring on the
territory of a given State party to the Convention.
5.103 This limited territorial scope of application of Article 5 is also brought out
by the wording of Article 5 of CERD.
5.104 First and foremost, Article 5 of CERD, unlike other provisions of the
Convention such as Articles 3 or 6 of CERD, does not contain any specific
clause the effect of which would be to extend the scope of application ratione
loci to foreign territories. A contrario, Article 5 of CERD only applies to the
territory of the respective contracting party.
5.105 This is further confirmed by the chapeau of Article 5 of CERD which
obliges contracting parties
―to prohibit and to eliminate racial discrimination in all its forms‖.
443See supra para. 5.82 et seq. 216
5.106 Given that a State may not, under international law, exercise sovereign
rights on foreign territory, unless specifically authorized to do so, any such State
is thus not in a position to either prohibit or eliminate racial discrimination
occurring abroad. Accordingly, the text of Article 5 of CERD necessarily
implies that the scope of application of Article 5 of CERD was thought to be
limited to the territory of a given contracting party (where said party could
indeed fulfill the obligation to prohibit and eliminate racial discrimination in all
its forms).
5.107 This is further confirmed by lit. a) of Article 5 of CERD, the content of
which reconfirms the territorial requirement underlying Article 5 of CERD. A
natural reading of the notion of ―tribunals and all other organs administering
justice‖ implies that Article 5 lit. a) of CERD is, once again, limited to the
territory of the State concerned, since it is only on its own territory that a State
possesses tribunals and is administering justice.
5.108 Mutatis mutandis, similar considerations apply to other parts of Article 5
of CERD. Thus, to give just a few examples, it is only on its own territory that a
State is legally in a position to protect individuals from violence emanating from
private groups or institutions. This is even more true with regard to the holding
of elections, the conduct of public affairs and the access to public service
contemplated in Article 5 lit. c) of CERD, the right to freedom of movement and
residence ―within the border of the State‖ guaranteed by Article 5, lit. d (i) of
CERD, or finally the regulation of access to public services such as transport or
parks, guaranteed by Article 5, lit. f) of CERD.
5.109 More specifically with regard to Article 5 lit. d) ii) of CERD, i.e. the
―right to leave any country, including one's own, and to return to one's country‖,
it is obvious that the right to leave any country, including the respective home 217
country, is only addressed to the respective territorial State on the territory of
which the individuals concerned are finding themselves, i.e. in the case at hand
Georgia. Accordingly, the Court‘s jurisdiction under Article 22 of CERD, which
is limited to issues related to the interpretation or application of the Convention,
does not in that regard relate to obligations of the Russian Federation.
5.110 The same is also true for the right ―to return to one‘s country‖/ ―de revenir
dans son pays‖ enshrined in the second part of Article 5 lit. d) ii) of CERD.
Already the very wording ―one‘s country/ son pays‖ indicates that the addressee
of the obligation is the home State of the individual concerned.
5.111 This is further confirmed by a reading of Article 5 lit. d) i) and ii) of
CERD. Article 5 lit. d), (i) of CERD limits the right to freedom of movement to
the "freedom of movement and residence within the border of the State", i.e.
thus to the freedom of movement within the boundaries of the respective
contracting party. Accordingly, the Court‘s jurisdiction under Article 22 of
CERD read in conjunction with Article 5 lit. d), (i) of CERD is limited in the
case at hand to determining vis-à-vis the Russian Federation the legality of
limitations upon the freedom of movement within the Russian Federation itself,
but not within areas which do not form part of the territory of the Russian
Federation. The wording of Article 5 lit. d) (i) of CERD therefore again
demonstrates that this provision does not apply extraterritorially.
5.112 Yet, just as Article 5 lit. d) (i) of CERD provides for the internal freedom
of movement within the boundaries of a given contracting party, the parallel
guarantee contained in Article 5 lit. d) (ii) of CERD, dealing with the external
aspect of the freedom of movement, similarly provides for the right to re-enter
the territory of the respective contracting party and is thus similarly addressed to
this contracting party, not to third States. 218
5.113 The limited territorial scope of application of Article 5 of CERD is also
further confirmed by the two General Recommendations adopted by the
Committee on the Elimination of Racial Discrimination specifically relating to
Article 5 of CERD.
5.114 For one, the geographical limitation inherent in Article 5 of CERD is
confirmed by ―General Recommendation No. 20: Non-discriminatory
implementation of rights and freedoms (Article 5)‖ adopted by the Committee
on the Elimination of Racial Discrimination on 15 March 1996. Its para. 3
provides:
―3. Many of the rights and freedoms mentioned in article 5, such as the
right to equal treatment before tribunals, are to be enjoyed by all persons
living in a given State; others such as the right to participate in elections,
444
to vote and to stand for election are the rights of citizens.‖
5.115 While the main point addressed in para. 3 of General Recommendation 20
is possible distinctions between citizens and non-citizens, its reference to
individuals present in a given territory nevertheless confirms that Article 5 of
CERD is to be applied solely to ―all persons living in a given State‖, i.e. the
rights guaranteed by Article 5 of CERD are to be guaranteed by the territorial
State concerned and those individuals that are living on the territory of this
State.
5.116 Moreover, ―General Recommendation 22: Article 5 and refugees and
displaced persons‖ does not support the broad assumption of an extraterritorial
application of Article 5 of CERD 44.
444
Emphasis added.
445GM, paras 9.22. et seq. 219
5.117 Starting with the preamble of General Recommendation 22, to which
Georgia has devoted some attention 44, it should first be noted that the first
preambular paragraph is nothing but a mere description ―of the fact‖ that certain
situations have in the past resulted in flows of refugees and the displacement of
persons without including any kind of legal conclusion to be drawn form this
factual determination, and even less any conclusion as to a possible
extraterritorial applicability of Article 5 of CERD. Indeed, by recalling the
1951/1967 Convention on the Status of Refugees, which relates to the
obligations of States on the territory of which refugees find themselves, the
Committee on the Elimination of Racial Discrimination underlines the
obligations of such territorial States with regard to persons displaced for ethnic
reasons.
5.118 This understanding is further confirmed by para. 2 lit. b) of General
Recommendation 22 which again relates solely to the obligations of the country
of residence of displaced persons and the circumstances of their departure from
the respective country of refuge.
5.119 Moreover, para. 2, lit. c) and d) of General Recommendation 22 relate
only to the situation of refugees and displaced persons already having returned
to their homes, which question does not, however, form part of the dispute
between the parties in the current proceedings.
5.120 Finally, it has also to be noted that para. 2 lit. a) of General
Recommendation 22 does not mention, as seems to be alleged by Georgia in its
Memorial 44, obligations of third States, but rather solely confirms the rights of
individual refugees and displaced persons to return to their homes.
446GM, para. 9.22.
447GM, para. 9.23. 220
5.121 It is misleading to refer to the practice of the Committee on the
Elimination of Racial Discrimination concerning Bosnia and Herzegovina as an
indication of an unlimited extraterritorial reach of Article 5 of CERD relating to
448
obligations vis-à-vis displaced persons. The relevant part of the Committee‘s
1994 report states:
―In that connection, the Committee strongly recommended that effective
action should be taken to ensure that refugees and other displaced persons
were allowed to return to their homes, all detainees were released
immediately into conditions of safety and adequate reparation was given
to the victims.‖449
5.122 This recommendation formed part of the report on Bosnia and
Herzegovina and was thus addressed to the government of Bosnia and
Herzegovina and thus to the territorial State concerned. Accordingly, the parties
to the conflict that could take measures aiming at the return of refugees and
displaced persons and to which the report referred were the Bosnian parties to
the conflict, i.e. the Bosnian government forces on the one hand, and local
Bosnian Serb insurgent forces on the other, thus not entailing any form of
extraterritorial reach of Article 5 of CERD, as implied by Georgia.
5.123 Moreover, the only reference to Article 5 (d) (ii) of CERD, i.e. the right to
return to one‘s own country, contained in the 2007 Committee‘s report on Israel
to which report Georgia referred in its Memorial 450, relates to the right of
Palestinians to return to Israel (i.e. the territory of the contracting party
448GM, paras. 9.24. – 9.25.
449U.N. General Assembly, 48th session, Official Records, Supplement No.18, Report of the
Committee on the Elimination of Racial Discrimination, U.N. Doc. A/48/18 (15 September
1993), paras. 453-473; para. 470. Annex 30.
450
GM, para. 9.26., footnote 1025. 221
concerned) and thus does not relate to the Occupied Palestinian Territories (i.e.
did not relate to territory beyond the boundaries of said contracting party). The
Committee stated:
―18. The Committee is concerned about the denial of the right of many
Palestinians to return and repossess their land in Israel. (Article 5 (d) (ii)
and (v) of the Convention).
The Committee reiterates its view, expressed in its previous concluding
observations on this issue, and urges the State party to assure equality in
the right to return to one‟s country and in the possession of property.‖ 451
5.124 It is also telling that Georgia itself, when reporting to the Committee on
the Elimination of Racial Discrimination under Article 9 of CERD and
specifically when referring to the situation in Abkhazia, did not refer at any
point in time to any form of responsibility of the Russian Federation arising
under Article 5 of CERD. Georgia thereby indicated its opinio juris that Article
5 of CERD did not apply vis-à-vis the Russian Federation to either Abkhazia or
South-Ossetia. Rather, Georgia merely referred to alleged acts of racial
discrimination attributable to the local authorities of Abkhazia:
―82. In the context of this article of the Convention [i.e. Article 5 of
CERD], particular attention should be drawn to the situation around
Abkhazia. Since the 1992-1993 armed conflict, the leaders of the self-
proclaimed republic have continued to pursue their policy of violence
directed against the Georgian population of the region, particularly in Gali
district.‖52
451Emphasis added.
452
Committee on the Elimination of Racial Discrimination, Reports submitted by States
Parties under Article 9 of the Convention, Initial report of States Parties due in 2000,
Addendum: Georgia, 24 May 2000, U.N Doc. CERD/C/369/Add.1 (1 February 2001), para.
82, emphais added. Annex 48. 222
5.125 The Committee in turn took note of this and shared the understanding that
any violations of Article 5 of CERD would be attributable to the Abkhaz
authorities without mentioning the Russian Federation. It stated:
―On repeated occasions, attention has been drawn to the obstruction by
the Abkhaz authorities of the voluntary return of displaced populations,
and several recommendations have been issued by the Security Council to
facilitate the free movement of refugees and internally displaced
persons.‖453
5.126 In its latest Concluding Observations dealing with the situation in
Georgia, the Committee on the Elimination of Racial Discrimination again
referred to the situation in Abkhazia and South Ossetia. After having deplored
―discrimination against people of different ethnic origins, including a large
number of internally displaced persons and refugees‖ arising under Article 5 of
CERD, the Committee took note of various recommendations which had been
issued by the Security Council to facilitate the free movement of refugees and
internally displaced persons‖ 454, none of which however was addressed to the
Russian Federation.
5.127 This approach by the Committee once again confirms the understanding
that Article 5 of CERD did not entail the responsibility of the Russian
Federation vis-à-vis the situation in Abkhazia or South Ossetia.
453
Committee on the Elimination of Racial Discrimination, Consideration of reports
submitted by States Parties under Article 9 of the Convention, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Georgia, U.N. Doc.
CERD/C/304/Add.120 (27 April 2001), emphasis added. Annex 50.
454
Committee on the Elimination of Racial Discrimination, 67th session, Consideration of
reports submitted by States Parties under Article 9 of the Convention, Concluding
observations of the Committee on the Elimination of Racial Discrimination: Georgia, U.N.
Doc. CERD/C/GEO/CO/3 (27 March 2007). Annex 63. 223
Section V. Article 3 of CERD does not apply to the conduct
of the Russian Federation in Abkhazia and South Ossetia
5.128 While mainly focusing on Articles 2 and 5 of CERD, Georgia also alleges
455
that Russia has violated Article 3 of CERD and thus implies that the Court has
jurisdiction to consider such alleged violations under Article 22 of CERD.
5.129 Unlike the other provisions invoked by Georgia, Article 3 of CERD does
indeed clarify its own territorial application by providing that
―States Parties particularly condemn racial segregation and apartheid and
undertake to prevent, prohibit and eradicate all practices of this nature in
territories under their jurisdiction.‖ 456
5.130 As noted above, the reference to ―jurisdiction‖ must be read as broadening
the spatial application of the obligation in question in that it deliberately goes
457
beyond a territorial application .
5.131 Georgia addresses the spatial scope of Article 3 of CERD in very brief
terms. It asserts that Abkhazia and South Ossetia, as well as adjacent areas of
Georgia, qualify as ―‗territories under the jurisdiction‘ of the Russian Federation
458
for the purposes of Article 3 of the Convention‖. In support, it relies on
Russia‘s alleged ―control of the de facto governmental administrations, finances
and military and police services‖ prior to 2008, and Russia‘s alleged ―military
455
GM, paras. 9.70. et seq.
456Emphasis added.
457See supra para. 5.38.
458
GM, para. 8.24. 224
occupation‖, said to amount to ―contro[l] [over] South Ossetia and Abkhazia‖
after 8 August 2008. 459
5.132 The Russian Federation submits that while Article 3 of CERD does, as a
matter of principle, re-define the spatial scope of obligations, it must be
interpreted restrictively. In particular, in Russia‘s submission, neither South
Ossetia nor Abkhazia qualify as ―territories under [Russia‘s] jurisdiction‖ in the
sense of Article 3 of CERD. This result is borne out by three alternative
arguments:
5.133 First, this result follows from the general understanding of the term
―jurisdiction‖ in other international conventions. As noted above, ―jurisdiction‖,
while typically denoting a move away from the principle of territoriality, is
interpreted narrowly in the international jurisprudence of this Court, as well as
other international courts and tribunals such as the European Court of Human
Rights. In line with the ―essentially territorial notion of jurisdiction‖, instances
in which human rights obligations have been said to govern the extraterritorial
conduct of States have been construed narrowly.
Contrary to Georgia‘s argument, ―control‖ as such is not a sufficient basis for
extending the spatial scope of obligations under international law. In contrast,
for the reasons set out above, only military occupation or the effective overall
control of a territory may be seen as an agreed basis of extraterritoriality.
5.134 The reference, in Article 3 of CERD, to ―territories under their
jurisdiction‖ must thus take account of this approach, which has concretised the
ordinary meaning of the term ―jurisdiction‖. In line with this ordinary meaning,
the phrase territories under their jurisdiction in the sense of Article 3 of CERD
459Ibid. 225
must be narrowly construed. For the reasons set out above, Russia‘s
involvement in Abkhazia and South Ossetia was never amounted to ―belligerent
occupation‖; nor has the Russian Federation ever exercised effective control,
and thus the applicability of Article 3 of CERD is not triggered.
5.135 Secondly, this general argument is supplemented by more specific
considerations based on the character of the prohibitions mentioned in Article 3
of CERD, as well as the forms of conduct that States parties have agreed to
undertake under the provision.
5.136 Article 3 of CERD does not cover racial discrimination in general, but two
very specific, qualified, forms of it, namely racial segregation and apartheid. As
noted above, this undermines Georgia‘s reasoning pursuant to which obligations
under other provisions of CERD, which cover racial discrimination in a much
broader sense, should apply without any territorial limitation. For present
purposes, it is important to note that the specific character of racial segregation
and apartheid informs the interpretation of the phrase ―territories under their
jurisdiction‖ and points towards a narrow understanding. As is clear from the
travaux and indeed its very wording, Article 3 of CERD was included into
CERD as part of attempts to stigmatize the policy of apartheid then implemented
within South Africa and by the then South African government in the mandate
territory of South West Africa/Namibia.
5.137 In the Namibia advisory opinion, the Court described this policy in the
following terms: 226
―the official governmental policy pursued by South Africa in Namibia is
to achieve a complete physical separation of races and ethnic groups in
separate areas within the [mandate] Territory‖ 460
and thus amounted to an attempt
―to establish (...) and to enforce distinctions, exclusions, restrictions and
limitations exclusively based on grounds of race, colour, descent or
national or ethnic origin‖. 461
5.138 This, as the Court further observed, constituted
―a flagrant violation of the purposes and principles of the Charter.― 462
5.139 Seen against this background, it becomes clear that Article 3 of CERD
aimed at stigmatising a narrowly-defined and universally-condemned policy.
For present purposes, it is important to note, however, that the specific focus of
Article 3 of CERD affects the interpretation of the phrase ―territories under their
jurisdiction―.
5.140 Given South Africa‘s attempt to impose racial policies extraterritorially
and thus beyond its own territory, i.e. in Namibia, Article 3 of CERD serves to
extend the territorial scope of Article 3 of CERD and to include forms of
extraterritorial control as well.
5.141 Thus, representatives endorsed a proposal, made during the work of the
Sub-Commission on Prevention of Discrimination and Protection of Minorities
by Mr. Abram, to add the phrase ―in territories subject to their jurisdiction‖ to
460
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, at p. 57, para. 130.
461
Ibid., para. 131.
462
Ibid, para. 131. 227
463
what was to become Article 3 of CERD precisely because (as was noted by
Mr. Calvocoressi)
―(...) ―apartheid‖ could be interpreted as applying exclusively to the
situation in South Africa.‖ 464
5.142 While there had to be some reference covering situations like that in
Namibia, it was clear that, just as under other jurisdictional clauses, the
exceptions to the territoriality principle were to be interpreted narrowly, taking
account of the specific situation envisaged by Article 3 of CERD.
5.143 In particular, it is clear from the very wording of the provision that
Article 3 of CERD only covers qualified forms of racial discrimination that, by
their very nature, presuppose an intensive control over territory: there is no way
of imposing a regime of apartheid unless a State exercises complete control over
territory. This may e.g. be the case in situations of prolonged belligerent
occupation, i.e. where territory is ―actually placed under the authority of the
hostile army‖, but even then ―extends only to the territory where such authority
465
has been established and can be exercised‖. In light of the historical
background of Article 3 of CERD, it seems clear that a mandate territory would
also qualify as a ―territory under jurisdiction‖ for the purposes of said provision.
5.144 Given the intention underlying Article 3 of CERD to outlaw the abuse of
mandate regimes, and given the decision underlying Article 3 of CERD to single
out practices of apartheid and racial segregation, Article 3 of CERD presupposes
463
U.N. Economic and Social Council, Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, Summary record of the 425th
Meeting, U.N. Doc. E/CN.4/Sub.2/SR.425 (11 February 1964), p. 29. Annex 4.
464Ibid.
465
See Democratic Republic of Congo (DRC) v. Uganda, Judgment of 19 December 2005,
ICJ Rep. 2005, at p. 229, para. 172. 228
intensive and full-fledged administrative control over territory. It thus seems
clear that Article 3 of CERD cannot be read to cover broadly-construed forms of
influence exercised abroad.
5.145 Finally, thirdly, a closer look at the forms of conduct mentioned in Article
3 of CERD confirms this result. Unlike other provisions of the Convention,
Article 3 of CERD does not lay down a duty of States to abstain from a certain
conduct, but rather imposes upon States three obligations to take positive action,
namely to prevent, to prohibit and to eradicate apartheid and racial segregation.
5.146 By deciding to focus on ―positive duties‖, the drafters implicitly accepted
that Article 3 of CERD would have a restrictive territorial scope. If interpreted
as a broad clause covering all forms of extraterritorial control or influence,
Article 3 of CERD would have justified, or even required, States to intervene in
the domestic affairs of another State. Yet, as Georgia admits itself (albeit in a
466
different setting) , the drafters were cautious not to impose upon States parties
far-reaching duties of intervention or prevention.
5.147 What is more, general rules of international law suggest that at least as a
matter of principle, States can only prohibit or eradicate behaviour that takes
place within their borders or exceptionally in other areas for which they assume
regulatory responsibility, such as mandate or trust territories.
5.148 To summarise, unlike Article 2 and 5, Article 3 of CERD was deliberately
formulated so as to apply to territories under a State‘s jurisdiction. In line with
general international law, the concept of ―jurisdiction‖ however, is to be
interpreted as a narrow exception to an ―essentially territorial‖ character of
obligations. This result is borne out and confirmed by the specific features of
466GM, 8.14. 229
Article 3 of CERD itself, which outlaws qualified forms of racial discrimination
requiring an intensive control over territory and which imposes upon States
potentially far-reaching duties to act that can only be performed within
territories under the complete control of a State.
5.149 Both factors suggest that the obligations derived from Article 3 of CERD,
while not limited to a State‘s own territory, can only apply to narrowly
construed forms of extraterritorial control, such as occupied territory and
mandates and thus does not cover the situation at hand. Accordingly, the Court‘s
jurisdiction ratione loci under Article 22 of CERD, which is limited to decide
disputes as to the interpretation or application of CERD, does not extend to the
allegations made by Georgia that the Russian Federation has violated Article 3
of CERD in Abkhazia and South Ossetia, quod non.
Section VI. Conclusions
5.150 To summarize, it is apparent that, given a lack of any clause extending its
geographical scope of application, CERD does not apply beyond the borders of
its contracting parties.
5.151 In the alternative, any form of extraterritorial application of CERD, if ever
there could be such, would be limited to situations of long-term belligerent
occupation or effective control, which there is, even prima facie, none in the
case at hand.
5.152 Besides, given their specific wording and content of Articles 2 and 5 of
CERD, said provisions confirm that they are not governing activities of
contracting parties abroad. 230
5.153 Moreover, Article 3 of CERD does not apply to conduct of the Russian
Federation in Abkhazia and South Ossetia.
5.154 Accordingly, the Court‘s jurisdiction ratione loci, which is limited to
deciding issues related to the interpretation and application of CERD, does not
extent to alleged violations of CERD said to be attributable to the Russian
Federation and said to have taken place in Abkhazia or South Ossetia. 231
CHAPTER VI
FOURTH PRELIMINARY OBJECTION:
THE COURT’S JURISDICTION IS LIMITED
RATIONE TEMPORIS
Section I. Introductory observations
6.1 Georgia asserts in the Introduction to its Memorial that it ―is seeking relief
from the Court only with respect to acts occurring after – or with continuing
effect from – the date when CERD entered into force with respect to Georgia,
i.e. 2 July 1999‖.67
6.2 Without prejudice to Russia‘s position that the Court lacks jurisdiction in
this case, and as a subsidiary issue, Russia wishes:
a. To alert the Court to the tension between Georgia‘s strong emphasis in
its Memorial on events prior to 2 July 1999 (the date of entry into force of
CERD so far as concerns Georgia), and Georgia‘s formal legal position
with respect to the Court‘s jurisdiction ratione temporis as set out above;
b. To identify to the Court that the remedies sought by Georgia in fact go
beyond Georgia‘s formal legal position (as set out above), as Georgia
appears to seek a form of restitution that would re-establish the situation
as it existed in the early 1990s (on Georgia‘s version of the facts), not to
re-establish the situation which existed before the alleged wrongful acts of
Russia were committed (i.e. by definition, no earlier that 2 July 1999);
467GM, para. 1.13. 232
c. Finally, to recall that the Court‘s jurisdiction is also limited in respect of
facts or events subsequent to the filing of an application.
6.3 At this jurisdictional phase of the proceedings, with respect to the Court‘s
jurisdiction ratione temporis, Russia submits that the Court should find, insofar
as the issue arises for consideration (quod non), that the provisions of CERD do
not provide a basis for any claim by Georgia against Russia in relation to any act
or fact which (allegedly) took place, or any situation which ceased to exist,
before 2 July 1999 – and that the Court‘s jurisdiction is limited accordingly.
This follows from the basic rule on non-retroactivity of treaties found in Article
28 of the 1969 Vienna Convention on the Law of Treaties, which provides:
―Unless a different intention appears from the treaty or is otherwise
established, its provisions do not bind a party in relation to any act or fact
which took place or any situation which ceased to exist before the date of
entry into force of the treaty with respect to that party.‖ 468
6.4 It is open to States to provide that a given treaty shall have retroactive
effect; however, no intention to this effect appears from CERD, and nor does
Georgia suggest otherwise. It follows that CERD can have no application as
between Russia and Georgia in respect of conduct relied upon by Georgia taking
place before 2 July 1999, and similarly that the Court can have no jurisdiction in
respect of alleged breaches concerning acts and omissions occurring prior to that
date.469
468
See also Article 13 of the ILC‘s Articles on State Responsibility: ―An act of a State does
not constitute a breach of an international obligation unless the State is bound by the
obligation in question at the time it occurs.‖
469See also e.g. Ambatielos case (jurisdiction), Judgment, I.C.J. Reports 1952, p. 28 at p. 40. 233
Section II. Georgia’s emphasis on events prior to 2 July 1999
6.5 Although Georgia became a State party to CERD only on 2 July 1999, it
470
is Georgia‘s case that the dispute dates back to 1991, and there is a strong
emphasis in Georgia‘s Memorial on events in Abkhazia and South Ossetia in the
early and mid-1990s. There are extensive sections on alleged ethnic cleansing in
South Ossetia in 1991-1992 (Memorial, paragraphs 5.4-5.8), in Abkhazia in
1992-1994 (Memorial, paragraphs 6.6-6.34) and 1998 (Memorial, paragraphs
6.35-6.46). This is notwithstanding the need to apply the rule on non-
retroactivity of treaties. Further, in Georgia‘s Chapter IX, it is said that:
―The present dispute centres upon the confrontation of various ethnic
groups within the national borders of Georgia. The de facto authorities in
South Ossetia and Abkhazia, in concert with Russia, have succeeded, over
a period of approximately 15 years, in cleansing the territor471 under their
de facto control of the vast majority of ethnic Georgians‖.
6.6 It follows that, with respect to the above example, Georgia is invoking
actions going back around five years before it became a party to CERD (in
1999). To similar effect, Georgia asserts:
―The issue in the present case is a narrow one, namely the extent of
Russia‘s responsibility in respect of the construction, maintenance and
consolidation of ethnically homogeneous enclaves in South Ossetia and
472
Abkhazia.‖
6.7 On Georgia‘s case, this alleged ―construction‖ is understood to have taken
place in the early 1990s.
470See e.g. Georgia‘s Application of 12 August 2008, para. 6.
471
GM, para. 9.17, emphasis added.
472
Ibid. 234
6.8 Further, it appears that Georgia seeks reparation by reference to the
factual situation as of the early 1990s, not as of 2 July 1999. One of the central
focuses in Georgia‘s Memorial is on the (approximately) 300,000 persons that
are said to have left Abkhazia and South Ossetia in the early to mid-1990s as a
result of ethnic cleansing. Georgia seeks various remedies in respect of those
persons, including a declaration that
―the Russian Federation is under an obligation to re-establish the situation
that existed before its violations of Articles 2(1)(a), 2(1)(b), 2(1)(d), 3 and
5 of the 1965 Convention, in particular by taking prompt and effective
measures to secure the return of the inte473lly displaced Georgians to their
homes in South Ossetia and Abkhazia.‖
6.9 However, as at the date that Georgia became party to CERD, such
displaced persons (other than those displaced in or from August 2008) had
already left Abkhazia and South Ossetia. Georgia assumes an identity between
the re-established ―situation‖ and the return of displaced persons that is
inconsistent with the basic facts, and thereby seeks a remedy that cannot be apt
for alleged breaches of Russia post-July 1999.
6.10 It is no answer to say that the breaches Georgia alleges are continuing in
character. Georgia in effect seeks a remedy apt for an expulsion of displaced
persons, when that expulsion – on Georgia‘s own case – took place many years
before any act for which Russia could be responsible under CERD. As Article
14(2) of the ILC‘s Articles on State Responsibility provides:
―The breach of an international obligation by an act of a State having a
continuing character extends over the entire period during which the act
continues and remains not in conformity with the international
obligation.‖
473GM, p. 408. 235
6.11 In other words, to be truly continuing in character the breach must be (i)
continuing and (ii) uninterrupted (―extends over the entire period‖). The
Commentary provides examples of various wrongful acts of a continuing
character:
―the maintenance in effect of legislative provisions incompatible with
treaty obligations of the enacting State, unlawful detention of a foreign
official or unlawful occupation of embassy premises, maintenance by
force of colonial domination, unlawful occupation of part of the territory
of another State or stationing armed forces in another State without its
474
consent‖.
6.12 The (alleged) expulsion of displaced persons is not analogous to such acts,
and in this respect it is important not to confuse the question of whether an act is
continuing in character with the question of whether or not the effects of that act
continue in time. The fact that the situation created by an act, i.e. the effects
thereof, may continue in time does not have the impact of transforming an act of
a State that does not have a continuing character into one that does. This may be
seen from Article 14(1) of the ILC‘s Articles on State Responsibility, which
provides:
―The breach of an international obligation by an act of a State not having
a continuing character occurs at the moment when the act is performed,
even if its effects continue.‖
6.13 The point is then made more explicitly in the Commentary to Article 14:
474Draft Articles on Responsibility of States for Internationally Wrongful Acts with
commentaries, commentary to Article 14, at para. 3. Yearbook of the International Law
Commission, 2001, Vol.II, Part Two, p.60.
A definition of a continuing breach is provided by Pauwelyn in The Concept of a „Continuing
Violation‟ of an International Obligation: Selected Problems, BYIL 56 (1995), p. 415 as
follows: ―a continuing violation is the breach of an international obligation by an act of a
subject of international law extending in time and causing a duration or continuation of that
breach‖. 236
―An act does not have a continuing character merely because its effects or
consequences extend in time. It must be the wrongful act as such which
continues. In many cases of internationally wrongful acts, their
consequences may be prolonged. … They do not, however, entail that the
475
breach itself is a continuing one.‖
6.14 Even where it is established that a breach is of a continuing character, this
does not negate the rule on the non-retroactivity of treaties. In such a case, a
treaty breach can only be found from the date from which the State is bound by
the obligation in question, and the jurisdiction of the international tribunal
concerned is limited accordingly. 476 In such a case, the tribunal has no
jurisdiction to award reparation that in fact does more than wipe out all the
consequences of the alleged illegal acts, i.e. reparation that seeks to re-establish
477
a situation that is said to have existed many years prior to the alleged acts.
Section III. Events subsequent to the filing of the Application
6.15 Finally, Russia recalls that the Court has held that it only has jurisdiction
over facts or events subsequent to the filing of an application if:
475Draft Articles on Responsibility of States for Internationally Wrongful Acts with
commentaries, commentary to Article 14, at para. 6. Yearbook of the International Law
Commission, 2001, Vol.II, Part Two, p.60.
476
See e.g. Pauwelyn, op. cit., at p. 435: ―One set of problematic cases remains: those where
the period during which the relevant international obligation is allegedly breached starts
before the critical date (subsequent to which ‗acts‘ or ‗situations‘ will fall before the specific
or general jurisdiction of the tribunal), but ends only after that date. The general rule is that in
these cases the international tribunal will be allowed to exercise jurisdiction over the alleged
breach for the period which continues to elapse after the critical date, even though the breach
came into existence before that date.‖ (Internal reference omitted.) See also Carballal v.
Uruguay (1981) ILR 62, p. 240 at 0.245; Teti v. Uruguay (1982) ILR 70, p. 287 at pp. 295-
296; and Mondev International Ltd. v. USA, ILM 42 (2003), p. 85 at p. 98, para. 70 (… ―it
must still be possible to point to conduct of the State after that date which is itself a breach‖),
cited by the tribunal in SGS v. Philippines, Award of 29 January 2004, para. 166.
477
Cf. Factory at Chorzów, Merits, 1928, PCIJ, Series A, No. 17, p. 47. 237
a. Those facts or events are connected to the facts or events already falling
within the Court‘s jurisdiction; and
b. Consideration of those later facts or events would not transform the
nature of the dispute. 478
6.16 The first limb of this test is particularly relevant in the present
proceedings. Before it can rely on facts or events subsequent to the filing of the
Application on 12 August 2008, Georgia must first establish the Court‘s
jurisdiction under CERD with reference to facts or events already falling within
the Court‟s jurisdiction i.e. facts or events in the period from 2 July 1999 to 12
August 2008. It is only then that facts or events subsequent to the filing of the
application could fall within the jurisdiction of the Court. However, as noted in
Chapter III above, Georgia fails to satisfy that test.
478Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), I.C.J.
Reports 2008, at para. 87. See also Fisheries Jurisdiction (Federal Republic of Germany v.
Iceland), I.C.J. Reports 1974, at para. 72; LaGrand (Germany v. United States of America),
I.C.J. Reports 2001, pp. 483-484, at para. 45; Certain Phosphate Lands in Nauru (Nauru v.
Australia), I.C.J. Reports 1992, at paras. 69-70; and Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium), I.C.J. Reports 2002, at para. 36. CHAPTER VII
CONCLUSIONS
7.1 Russia‘s principal contentions may be summarized as follows:
a. Georgia has attempted to manufacture a case that would come within
the Court‘s jurisdiction under Article 22 of CERD. The real dispute in this
case does not come within the jurisdiction provided for by that Article.
Moreover, Georgia‘s approach to international dispute settlement is
tainted in that Georgia has only brought its so-called ―dispute‖ before the
Court after having in vain sought to provide for a solution for its conflict
with Abkhazia and South Ossetia by illegally resorting to use of force.
b. The real dispute in this case concerns the conflict, between Georgia on
the one hand and Abkhazia and South Ossetia on the other, in relation to
the legal status of Abkhazia and South Ossetia, a conflict that has on
occasion erupted into armed conflict. It is manifest that there was a period
of armed conflict between Georgia and Russia, following on
from Georgia‘s unlawful use of force on 7 August 2008. This is not a case
about racial discrimination.
c. There was no dispute between Georgia and Russia with respect to the
interpretation and application of CERD with regard to the situation in and
around Abkhazia and South Ossetia prior to the date Georgia submitted its
Application to the Court, i.e. prior to 12 August 2008.
d. Apart from the lack of any relevant dispute, Georgia has not satisfied
the requirements laid down in Article 22 of CERD. Those requirements
are not fulfilled since: 239
(i) Article 22 of CERD conditions the jurisdiction of the Court on,
cumulatively, previous attempts by the State that brings a case
before the Court to settle the dispute through (a) negotiations and
(b) the procedures expressly provided for in the CERD; and
(ii) Georgia has not attempted to negotiate with Russia on the
alleged ―dispute‖ referred to in the Application;
(iii) nor has Georgia attempted to use the procedures expressly
provided for in the CERD.
e. The jurisdictional reach of Article 22 of CERD does not extend to acts
or omissions by Russia allegedly having taken place on the territory of
either Abkhazia or South Ossetia. The Court‘s jurisdiction under Article
22 of CERD is limited to disputes related to the application or
interpretation of CERD which in turn does not apply to acts having taken
place beyond the territory of the respective contracting party.
f. In the alternative and should the Court find that it otherwise has
jurisdiction, quod non, the Court‘s jurisdiction is limited ratione temporis
to events having taken place after the entry into force of CERD as
between Georgia and Russia, i.e. to events which occurred after 2 July
1999.
7.2 In the present Preliminary Objections Russia does not discuss issues
related to the substance of Georgia‘s claims. These pleadings are confined to
objections on jurisdiction only. Insofar as certain matters of a factual nature are
referred to herein, this is done solely for the purposes of Russia‘s contentions on
jurisdiction. SUBMISSION
For the reasons advanced above, the Russian Federation requests the Court to
adjudge and declare that it lacks jurisdiction over the claims brought against the
Russian Federation by Georgia, referred to it by the Application of Georgia of
12 August 2008.
________________
________________
Kirill GEVORGIAN Roman KOLODKIN
Agents of the Russian Federation
Moscow, 1 December 2009 CERTIFICATION
We hereby certify that the annexes are true copies of the documents referred to
and that the translations provided are accurate.
________________ ________________
Kirill GEVORGIAN Roman KOLODKIN
Agents of the Russian Federation
Moscow, 1 December 2009 TABLE OF ANNEXES
(REPRODUCED IN VOLUME II)
Annex 1 U.N. Economic and Social Council, Commission on Human Rights,
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Summary record of the 407th Meeting, U.N. Doc.
E/CN.4/Sub.2/SR.407 (5 February 1964)
Annex 2 U.N. Economic and Social Council, Commission on Human Rights,
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Summary record of the 417th Meeting, U.N. Doc.
E/CN.4/Sub.2/SR.417 (5 February 1964)
Annex 3 U.N. Economic and Social Council, Commission on Human Rights,
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Summary record of the 422nd Meeting, U.N. Doc.
E/CN.4/Sub.2/SR.422 (10 February 1964)
U.N. Economic and Social Council, Commission on Human Rights,
Annex 4
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Summary record of the 425th Meeting, U.N. Doc.
E/CN.4/Sub.2/SR.425 (11 February 1964)
Annex 5 U.N. Economic and Social Council, Commission on Human Rights,
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Report of the Sixteenth Session of the Sub-Commission
on Prevention of Discrimination and Protection of Minorities to the
Commission on Human Rights, U.N. Doc. E/CN.4/873,
E/CN.4/Sub.2/241 (11 February 1964)
Annex 6 U.N. Economic and Social Council, Commission on Human Rights,
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Summary record of the 427th Meeting, U.N. Doc.
E/CN.4/Sub.2/SR.427 (12 February 1964)
Annex 7 U.N. Economic and Social Council, Commission on Human Rights,
Draft International Convention on the Elimination of All Forms of
Racial Discrimination Final Clauses, Working Paper prepared by the
Secretary-General, U.N. Doc. E/CN.4/L.679 (17 February 1964)
Annex 8 U.N. Economic and Social Council, Commission on Human Rights,
Summary record of the 810th Meeting, U.N. Doc. E/CN.4/SR.810
(15 May 1964) 244
th
Annex 9 U.N. General Assembly, 20 session, Official Records, Annexes,
Third Committee, Ghana: revised amendments to document
A/C.3/L.1221, U.N. Doc. A/C.3./L.1274/REV.1 (12 November 1965)
th
Annex 10 U.N. General Assembly, 20 session, Official Records, Third
Committee, Record of the 1344th meeting, U.N. Doc. A/C.3/SR.1344
(16 November 1965)
Annex 11 U.N. General Assembly, 20 th session, Official Records, Third
Committee, Record of the 1345th meeting, U.N. Doc. A/C.3/SR.1345
(17 November 1965)
Annex 12 U.N. General Assembly, 20 th session, Official Records, Third
Committee, Record of the 1346th meeting, U.N. Doc. A/C.3/SR.1346
(17 November 1965)
th
Annex 13 U.N. General Assembly, 20 session, Official Records, Third
Committee, Record of the 1347th meeting, U.N. Doc. A/C.3/SR.1347
(18 November 1965)
th
Annex 14 U.N. General Assembly, 20 session, Official Records, Third
Committee, Record of the 1349th meeting, U.N. Doc. A/C.3/SR.1349
(19 November 1965)
Annex 15 U.N. General Assembly, 20 th session, Official Records, Third
Committee, Record of the 1353th meeting, U.N. Doc. A/C.3/SR.1353
(24 November 1965)
Annex 16 U.N. General Assembly, 20 th session, Official Records, Third
Committee, Record of the 1354 meeting, U.N. Doc. A/C.3/SR.1354
(25 November 1965)
th
Annex 17 U.N. General Assembly, 20 session, Official Records, Third
Committee, Record of the 1358th meeting, U.N. Doc. A/C.3/SR.1358
(29 November 1965)
th
Annex 18 U.N. General Assembly, 20 session, Official Records, Third
Committee, Record of the 1363rd meeting, U.N. Doc. A/C.3/SR.1363
(3 December 1965)
Annex 19 U.N. General Assembly, 20 th session, Official Records, Third
Committee, Record of the 1367th meeting, U.N. Doc. A/C.3/SR.1367
(7 December 1965)
Annex 20 U.N. General Assembly, 20 th session, Official Records, Third
Committee, Record of the 1368th meeting, U.N. Doc. A/C.3/SR.1368
(8 December 1965) 245
th
Annex 21 U.N. General Assembly, 20 session, Official Records, Annexes,
Third Committee, Phillipines: proposed articles relating to measures
of implementation, U.N. Doc. A/C.3/L.1221 (11 October 1965)
Annex 22 U.N. General Assembly, 20 thsession, Third Committee, Poland:
amendments to document A/C.3/L.1221, U.N. Doc. A/C.3/L.1272 (1
November 1965)
Annex 23 U.N. General Assembly, 20 th session, Official Records, Annexes,
Report of the Third Committee, U.N. Doc. A/6181 (18 December
1965)
Annex 24 ―Russia and Georgia have agreed that South Ossetia does not exist‖,
by Liana Minasian, Nezavisimaya Gazeta (30 June 1992)
Annex 25 Human Rights Watch / Helsinki, ―Bloodshed in the Caucasus:
Violations of Humanitarian Law and Human Rights in Georgia-South
Ossetia Conflict‖ (1992)
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Annex 26 U.N. General Assembly, 46 session, Official Records, Supplement
No.18, Report of the Committee on the Elimination of Racial
Discrimination, U.N. Doc A/46/18 (1992)
Annex 27 Intentionally omitted
Annex 28 Communiqué on Russian-Abkhaz consultations, Maykop (5-6 May
1993)
Annex 29 U.N. Security Council, Report of the Secretary-General in pursuance
of Security Council Resolution 849 (1993) UN Doc. S/26250 (6
August 1993)
th
Annex 30 U.N. General Assembly, 48 session, Official Records, Supplement
No.18, Report of the Committee on the Elimination of Racial
Discrimination, U.N. Doc. A/48/18 (15 September 1993)
Annex 31 U.N. Security Council, Statement by the President of the Security
Council of 17 September 1993, U.N. Doc. S/26463 (6 October 1993)
Annex 32 Intentionally omitted
Annex 33 Memorandum of Understanding between the Georgian and the
Abkhaz sides at the negotiations held in Geneva, 1 December 1993
(U.N. Security Council, Appendix to the Letter dated 9 December
1993 from the Permanent Representative of Georgia to the United
Nations addressed to the Secretary-General, UN Doc. S/26875, 15
December 1993) 246
Annex 34 U.N. Security Council, Letter dated 4 February 1994 from the
Representatives of Georgia and the Russian Federation addressed to
the Secretary-General, U.N. Doc. S/1994/125 (7 February 1994)
Annex 35 U.N. Security Council, Report of the Secretary-General concerning
the situation in Abkhazia, Georgia, U.N. Doc. S/1994/312 (18 March
1994)
Annex 36 Declaration on measures for a political settlement of the
Georgian/Abkhaz conflict signed on 4 April 1994; Quadripartite
agreement on voluntary return of refugees and displaced persons
signed on 4 April 1994 (U.N. Security Council, Letter dated 5 April
1994 from the Permanent Representative of Georgia to the United
Nations addressed to the President of the Security Council, U.N.
Doc. S/1994/397, 5 April 1994, Annexes I and II)
Annex 37 Agreement on a cease-fire and separation of forces, signed in
Moscow on 14 May 1994 (U.N. Security Council, Letter dated 17
May 1994 from the Permanent Representative of Georgia to the
United Nations addressed to the President of the Security Council,
U.N. Doc. S/1994/583, 17 May 1994)
Annex 38 U.N. Security Council, Resolution 934 (1994), U.N. Doc. S/RES/934
(30 June 1994)
Annex 39 U.N. Security Council, Resolution 937 (1994), U.N. Doc. S/RES/937
(21 July 1994)
Annex 40 Commonwealth of Independent States, Council of the Heads of State,
Decision on the use of the Collective Forces for the Maintenance of
Peace in the area of the Georgian-Abkhaz conflict (22 August 1994)
th th
Annex 41 U.N. General Assembly, 49 session, Official Records, 16 Meeting,
U.N. Doc. A/49/PV.16 (4 October 1994)
Annex 42 Agreement on the further development of the process of the
settlement of the Georgian-Ossetian conflict and on the Joint Control
Commission (31 October 1994)
Annex 43 Joint Control Commission for the Settlement of the Georgian-
Ossetian Conflict, Decision on the Joint Forces for the Maintenance
of Peace (6 December 1994) 247
Annex 44 U.N. Security Council, Letter dated 20 March 1995 from the
Permanent Representative of Georgia to the United Nations addressed
to the President of the Security Council, U.N. Doc. S/1995/212 (21
March 1995)
Annex 45 Final Statement on the results of the resumed meeting between the
Georgian and Abkhaz sides held in Geneva from 17 to 19 November
1997
Annex 46 Commonwealth of Independent States, Council of the Heads of State,
Decision on additional measures for the settlement of the conflict in
Abkhazia, Georgia, 28 April 1998 (U.N. Security Council, Letter
dated 5 May 1998 from the Permanent Representative of the Russian
Federation to the United Nations addressed to the Secretary-General,
U.N. Doc. S/1998/372, 5 May 1998)
Annex 47 Joint Control Commission for the Settlement of the Georgian-
Ossetian Conflict, Decision on the activities of the Joint
Peacekeeping Forces; on cooperation between law enforcement
agencies of the Parties in the area of the Georgian-Ossetian conflict,
Annex 1 to Protocol No.9 of the meeting of the Joint Control
Commission (31 March 1999)
Annex 48 Committee on the Elimination of Racial Discrimination, Reports
submitted by States Parties under Article 9 of the Convention, Initial
report of States Parties due in 2000, Addendum: Georgia, 24 May
2000, U.N Doc. CERD/C/369/Add.1 (1 February 2001)
Annex 49 Intentionally omitted
Annex 50 Committee on the Elimination of Racial Discrimination,
Consideration of reports submitted by States Parties under Article 9
of the Convention, Concluding observations of the Committee on the
Elimination of Racial Discrimination: Georgia, U.N. Doc.
CERD/C/304/Add.120 (27 April 2001)
th
Annex 51 Committee on the Elimination of Racial Discrimination, 58 session,
Summary Record of 1454 thMeeting, 16 March 2001, U.N. Doc.
CERD/C/SR.1454 (14 June 2001) 248
Annex 52 Joint Control Commission for the Settlement of the Georgian-
Ossetian Conflict, Decision on the draft Inter-State Russian-Georgian
programme of return, accommodation, integration and reintegration
of refugees, unvoluntarily displaced persons and other persons having
suffered from the Georgian-Ossetian conflict, and of measures aimed
at restoration of economy in the return areas, Annex 1 to Protocol No.
28 of the Meeting of the Joint Control Commission (23-26 June
2003)
Annex 53 U.N. Security Council, Resolution 1494 (2003), U.N. Doc.
S/RES/1494 (30 July 2003)
Annex 54 Commonwealth of Independent States, Council of Heads of State,
Decision on the stay of the Collective Peace-Keeping Forces in the
conflict zone in Abkhazia (Georgia) and on measures aimed at further
settlement of the conflict (7 August – 19 September 2003)
Annex 55 Joint Control Commission for the Settlement of the Georgian-
Ossetian Conflict, On the implementation of the agreement between
the Government of the Russian Federation and the Government of
Georgia on mutual cooperation in rehabilitation of the economy in the
zone of the Georgian-Ossetian conflict and return of refugees, Annex
to Protocol No. 30 of the Meeting of the Co-Chairmen of the JCC (16
April 2004)
Annex 56 Human Rights Committee, 18 thsession, General Comment No. 31:
The Nature of the General Legal Obligation Imposed on States
Parties to the Covenant, 29 March 2004, U.N. Doc.
CCPR/C/21/Rev.1/Add.13 (26 May 2004)
Annex 57 Press conference of the Prime Minister of Georgia, Zurab Noghaideli,
13 December 2005, circulated at the meeting of the Joint Control
Commission of 27-28 December 2005
Annex 58 U.NndEconomic and Social Council, Commission on Human Rights,
62 session, Specific groups and individuals: mass exoduses and
displaced persons, Report of the Representative of the Secretary-
General on the human rights of internally displaced persons, Walter
Kälin, Addendum: Mission to Georgia (21 to 24 December 2005),
U.N. Doc. E/CN.4/2006/71/Add.7 (24 March 2006)
Annex 59 Letter of the State Minister of Georgia, Giorgi Khaindrava, to the
Minister of Foreign Affairs of Georgia, Gela Bejhuashvili (9 June
2006) 249
Annex 60 U.N. Security Council, Resolution 1716 (2006), U.N. Doc.
S/RES/1716 (13 October 2006)
Annex 61 Intentionally omitted
Annex 62 ―S. Ossetia Quiet After Rival Polls‖, Civil Georgia, Daily News
Online (12 November 2006)
th
Annex 63 Committee on the Elimination of Racial Discrimination, 67 session,
Consideration of reports submitted by States Parties under Article 9
of the Convention, Concluding observations of the Committee on the
Elimination of Racial Discrimination: Georgia, U.N. Doc.
CERD/C/GEO/CO/3 (27 March 2007)
Annex 64 ―MPs Pass Draft Law on S. Ossetia with Final Hearing‖, Civil
Georgia, Daily News Online (13 April 2007)
Annex 65 ―S.Ossetian Alternative Leader to Address Georgian Parliament‖,
Civil Georgia, Daily News Online (7 May 2007)
th
Annex 66 Committee on the Elimination of Racial Discrimination, 70 session,
Consideration of reports submitted by States Parties under Article 9
of the Convention, Concluding Observations of the Committee on
the Elimination of Racial Discrimination: Israel, U.N. Doc.
CERD/C/ISR/CO/13 (14 June 2007)
Annex 67 U.N. Security Council, Resolution 1808 (2008), U.N. Doc.
S/RES/1808 (15 April 2008)
Annex 68 U.N., General Assembly, 62 ndsession, Official Records, 97 plenary
meeting, U.N. Doc. A/62/PV.97 (15 May 2008)
Annex 69 U.N. Security Council, Report of the Secretary-General on the
situation in Abkhazia, Georgia, U.N. Doc. S/2008/480 (23 July 2008)
Annex 70 Committee on the Elimination of Racial Discrimination, 73 session,
Consideration of reports submitted by States Parties under Article 9
of the Convention, Concluding Observations of the Committee on
the Elimination of Racial Discrimination: Russian Federation, U.N.
Doc. CERD/C/RUS/CO/19 (20 August 2008)
Annex 71 Commonwealth of Independent States, Council of Heads of State,
Decision on the discontinuance of the activities of the Collective
Forces for the Maintenance of Peace in the area of the Georgian-
Abkhaz conflict (10 October 2008) 250
rd
Annex 72 U.N. General Assembly, 63 session, Official Records, Supplement
No. 18, Report of the Committee on the Elimination of Racial
Discrimination, U.N. Doc. A/63/18 (1 November 2008)
Annex 73 Salomé Zourabichvili, ―La tragédie géorgienne 2003-2008‖ (Paris,
2008)
Annex 74 U.N., Report of the Durban Review Conference, U.N. Doc.
A/CONF.211/8 (20-24 April 2009)
Annex 75 Independent International Fact-Finding Mission on the Conflict in
Georgia, Report, vol. I (September 2009)
Preliminary Objections of the Russian Federation