INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE INTERNATIONAL COl'i'VENTION ON THE
ELI1\1INATION OF ALL FOR1VISOF RAClAL DISCRIMINATION
(GEORGIA v. RUSSIAN FEDERATION)
ANS\VERS OF GEORGIA TO JUDGES' QUlrSTIONS
24 SEPTEMBER 2010 A.NSW"ERSTO JUDGES' QUESTIONS
ANSWER TO QUESTION FROM JUDGE KOROMA
The question:
What precisely, in the view of the Parties, is the abject and purpose of the clause
contained in Article 22 of the Convention on the Elimination of AB Forms of
Racial Discrimination which reads as follows: "which is not settled by negotiation
or by the procedures expressly provided for in this Convention"?
Georgia addressed the meaning and effect of Article 22 of CERD at paragraphs 3.12 through
3.53 of its Wrîlten Statement on Preliminary Objections. In response to the oral arguments of the
Russian Federation, Georgia returned to the issue in the first and second rounds of its oral
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arguments.
Georgia notes that the reference to '"objectand purpose'' in the Vîetma Convention on the Law of
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Trealies relates to !he treaty as a who le, rather than to phrases within individual articles. Georgia
recognizes, however, that individual articles may contribute to an assessment of the 0\'erall
abject and purpose of a lreaty, and that the treaty's abject and purpose can înfonn the
interpretation ofindividual words and phrases.
ln Georgia's view, the overall abject and purpose of CERD is to establish an effective regime at
the international leve! ta address racial (including ethnie) discrimination. The Convention's
preamble refers to the resolution of the parties "to adopt all necessary measures for speedily
eliminating racial discrimination in allits forn1s and manifestations." The travaiLt:préparatoires
are replete with references to the need to establish an effective regime, and examples include the
following:
lVIr.ha nov (Union of Soviet Socialîst Republics)
"[The Convention] should be an effective and practical instmment foreradicating
racism and tàscism, the most shameful phenomena of the contemporary world."
'The Convention which the Sub-Commission was to draft should not merdy
slate principles: it sbould bind governmen!s to lake practical measurcs to
liquidateracism and racial discrimination."'
' CR 2010/IJ, pp. 37-52. paras. 12-62 (Cr.:l\vford): CR 2010!11, pp. 2G-28. para;;. 17-24 (Rcichler).
1 Article:; l( l) of the 1969 Vienna Cünvention on the Law o[Treatics provi".4 :reoty sha!l h.: i!ïlcrpn•t<•din
.~oodfa inaccnrdance 'fthche ordina1:vn1eani1to btgil'eio the 1enns of!/fTt.hïin iheir contcxr andtir:.~
!igl:o(it.>ol.tj!!cl ami purp(cmp1msis addc'd).
- 1- ''... it should specify measures for elTectively om1awing (racial discriminatio1-'.J
i'vlr. f;'i:oskowitz {Consultative Council of .Jewish Organizations) [Rep. from
NGO]
"Unfortunately, the failure of ù1e drafLSbefore the Sub-Commission to provide
for recourse to the International Court of Justice or fur appropriate enforcement
machinery raised serious questions concerning their effectiveness." 4
Mr. Ostrovsky (Union of Soviet Socialist Repu blies)
"Mr. Ostrovsky cautioned against precipitating a vote on the remaining articles of
)1.,1rl.ngles's text They had not been given adequate consideration and they
contained a number of legal and textual inconsistencies; they could in no case be
said to be an expression of the general views of the Sub-Comnùssion. The only
point on which general agreement had been reachecl was the need to include
measures of implementation in the draft convention in order to make it more
effective ,s
Mr. Garcia {Philippines)
"During the debates in ù1e Conuuiuee on the substantive articles of the
Convention, [the Filipino} delegation had been deeply impressed by the universal
desire of members to complete the consideration of ù1e Convention quickly in
order to secure an efièctive means of eliminati6g racial discrimination, which
was clearly an important and urgent problem."'
The CERD regime includes the reporting and scrutiny system of the CERD Committee under
Part Il, but this is not the exclusive means by \Vhich States may address issues of racial or ethnie
discrimination. The lCJ's jurisdiction is a separate part of the CERD regime, qualified only by
reference to the requirements set out in Article 22 itself. The reporting and scrutiny system
established by Part Il is separate and distinct from Article 22 in its scopc of application. Article
!1, for example, may have a different purpose, in the sense of enabling any State party to
query information given under Article 9 irrespective of whether it concerns the interpretation and
application of the Convention; Article 22, by contrast, deals \Vith disputes between States
concerning the interpretation and application ofthe Convention.
lf by negotiation or pursuant to the procedure envisaged in Pmt Il, adispute is settled as a matter
of fact, tben it is plain that the dispute cannat be brought to the Comt under Article 22. This is
the point of the "which is not settled" phrase, as Georgia has explained in its \vritten and oral
>U.N. Economie and Social Council. Swnmary Record of the -IU7"'Meeting, U.N. Doc. FJCN.4JSuh.2!SR.407, p. 9,
\Vrillen StatemcnlfGcorgia on PreliminaryObjections (G\VS), Vol.li,Annex2.
' U.N.Economieand Social CounciL Summary Record tif.the -1f{' Meeting, 1J.N. Doc. ETN.4!Suh.2fSR.4l 0, p. 5.
GWS. Vol. Il, Annex 2.
; U.N.Economieand SocialCounciL S'ummury Recunl '!(the -!29"'Meeting, U.N.Doc. FJCN.-1/Sub.2!SR.429, p. J,
GWS. Vol. Il, Annex q
''U.N. GeneralAssembly, <?fiicialRecord of the 17JirdCommillee, 134-l' Meeting, US. Doc. A!C.3!SR.I344,para.
27, GWS. Vol. Tl,:\nnex 24.
-2-pleadings. This means, by way of example, if a complaint by an individual of discrimination that
ls raised by the government of another State îs settled, then that State cannat take the matter
further under Article 22.
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For the reasons given by Georgia in oral argument, îtwould not be consistent with the averai!
abject of an effective fight against racial discrimination to subordinate the Court's judicial
functîon under Article 22 to the different inquiry function of the bodies established by Part IL
The phrase «which is not settled" does not in tenns purport to so subordinate the Court's judicial
function: much clearer language could have been used if that had been the intention, as is
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reflected for example in the language of the original proposai 80. For the reasons provided by
Georgia (including in relation to Article 16), it is not appropriate to interpret the phrase ''whichis
not settled" sa as ta subordinate the Article 22 jurisdiction of the Court in a manner that the
negotiators plainly did not intend, and which is inc.onsistent with the abject and purpose of the
Convention to provide effective means to eliminate discrimination.
ANSWER TO QUESTION FROM JUDGE CANÇADO TR1NDADE
The question:
ln your understanding, does the nature of human rights treaties such as the CERD
Convention (regulating relations at intra-State levet) have a bearing or incidence
on the interpretation and application of a compromissory clause contained
therein?
Georgia recognizes that - like many international human rights instruments - the CERD
Convention regulates relations between the State and the citizen at the intra-State level, i.e., the
relations between aState and its own citizens, as with apartheid. (Jt also regulates actions taken
by aState with respect to those located in other States.) ln this respect, the international human
rights movcment from the Universal Declaration on Human Rights onwards reflected a
genuinely new development in international law, and one that bas since taken root. The purpose
of multilateral tTeaties of this kind, of which the CERD was the first, was to build upon earlier
declarations and make human riuhts scru9inv and enforcement effective at the international levet
including by means of dispute s;tlement. • .
As the Court has recognised, this new development was capable or allècting the inteq)retation of
a compromissory clause. In its 1996 judgment on Preliminary Objections in the Busnia
Genocide case the Court rcferred no less than tbree times to the special nature of the Genocide
·CR 2010!9, pp. 34-35, paras. 3-5 (Crawford): pp.45-51, paras. 37-60 (Crawford).
~ U.N. Economie and Social Council, Dn!fi lntematiwwConn;ntinn on tl:ElimiJwtlnloi A!/ Forms of Racial
Discrimination, Final Clauses. TYorking paper prepared hy the Secr.:tm)'·(Ïeneml. U.N. Doc. EWN!4/L.679 (17
Fcbru:1ry 1964). GWS, VoL Il, Anncx 13. p. 62.
., Sce C. Tomuschat. Hwmm Rights:BetH·cenldeafism and R.:alism, (Oxford UniversPres 2003.); D. Shelton.
Rrnncdi<•IJImemational Humcm HightsLm•·,(2"" Ed.• Oxford University Press, 2005).
- 3 -Convention as a universal human rights instrument in arder to found its jurisdiclion ralione
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persvnae, ratione maieriae, ratione temporis under Article lX of that Convention. More
recently, in relation lo other cases1 il has been noted that the Court has "looked beyond the
strictly inter-Statc dimension,"! indicating - correctly in Georgia's view - an expansive
approach to jurîsdictional matters in order to safeguard the underlying values of the treaty at
issue. Thus, because human rights treaties regulate the relations ben-veenthe State and its own
c.itizens, a compromissory clause should not be limited to matters covered by traditional
international law, e.g.. in the field of diplomatie protection. ltwould iikewise be incorrect to
treat the interpretation and application of a human rights treaty as a matter confined exclusive! y
to the advisory function of the supervisory body in question - as the Comt in South WestAji-ica,
Seco11dPhase, made clear in relation to the Mandate and the role of the Permanent Mandates
Commission. 12Relatedly, human rights-type protections may survive change of sovereîgnty 13or
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change of supervisory regime which merely bilateral interstate provisions may not survive.
Georgia's approach to the interpretation of Article 22 is further reinforced by the Court's
established jurisprudence on erga umnes rights and obligations, in the Barcelona 1i·actioncasc. 15
lt is noteworthy that the Court gave as an example of erga onmes norms the basic rights of the
human persan, including explicitly the protection against racial discrimination, along with the
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prohibition of slavery and genocide. The legal consequences of brcaches of erga omnes norms
bas since been ftuther clarified by the Courtn and incorporated by the International Law
Commission in iL<Articles on the Responsibility of States tor lnternationally Wrongful Acts.
10See Applicarion of rhe Convention on the Prevemion and l'w1ishnumt v.f 1he Crime <~ Gfenocide (Bosnia and
Her.Œgovina v.Serbia and lvfontenegro)Preliminary Objection, Judgment., l.C.J Rep. 1996, p. 595, par22,31 and
34.
11
See Pttlp Mi/ls on the River Un1guay (A1-gentinav. U111guayjJudgment, LC J. Rep. 201O. Separate Opinion of
Judge Cançado Trindade, para. 158.
;;The Court held that in relation to receiving and examining annual reports and advising the Council of the League
of Natimls on atltnattersrelating to the observance of mandates, the Permanent 1v1andates Commission "alone had
this advisory rote•·South West Africa ÎLiberiu v. South .{fricaSecond Phase, Judgment. LC.J. Rep. 1966, p.6,
para.22.
il ln the words of Judge Weeamantry: "[t]be Genocide Convention does not come to an end with the
dismemberment of the original State, as it transcendsthe concept of State sovereignty." Application of the
Convention on the Prevention and Pumshment of the Crime of Genocide (Bosnia and Her::egoFinav. Serbia and
M1111lclicgroP)reliminary Objection, Judgment, I.C.J Rep. 1996,p.595, Separ< Opineon of Judge Weeramanty, p.
646.
14!l!tenwrianai Statlls o(Svutfi-West AJ'i-Advisory Opinion, l.CJ Rep. l<)50,p. 1:::at pp. 132i.'seq.
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Barce/t.maTmccion. l.ight am/ l'mrer Company, Limited, (Belgium v. Spuin)Second Ph2se. Judgtncnt, l.C'.J. Rep.
1970.p. 32, pam. 3~ ("f ...<11esscntial distinction should be drawn between the obligations of a State towards the
internationalcommunity as a wht,1e, and thosc arising vis-à-vis anothcStalc in the t1eld of diplomatie protection.
By their very nature the former are the concern of ali States. ln view of the importance of the rights involved, ali
States canbe held to have a legal interest in their protection: they are obligations eQ;a omnes.'").
''Jhid..para. 34.
"L·gaf Ccmscqtl('/1cesc;{!he Omstmctio11 of a Wall iu th,• Occ!lpi/'alesfi!lùm 7àri!OIJ·. ,\dvis(lry Opinion, I.C.J.
Rep. 2004. DG, pp. 1<J9-200,para5. 155-l 60.
-4-particularly in Articles 48 and 54, 18 acknowledging the standing of all members of the
internationalcommunhv to invoke the responsibility of the State for breach of erga onznes
norms. 19 -
The character of human rights treaties in particular their non-synallagmatic character -
provides a reason for the broad interpretation of compromissory clauses, and not for their
narrow or restrictive interpretation. In the present case this provides a further reason for
r~jec thi nugssian Federation's view that Atticle 22 is subordinated to Article 11.
1"InternationLaw Commission, Articles on Responsibility of States for lntemationally Wrongful Acts. ndopted in
the Annual Reportf the InternatiLawl Commission on its Fitiy-third Session (23 .April-! June and 2 July-10
August 200 l), U.N. Doc. Ai56!l 0, Chapter IV (endorsed by UNGA Res. 56!83 (12 Dccember 2001 )).
,., Sec also the Separate Opinion of Judge Simma v.Uganda, noting that. '·Ifthe intemational community
allnwed such interest to erode in the face not only of violations of obligations ergaatters bapL~f outright
do away with these fundamental dulies, and in their proper place open black holes in the law in which human beings
may be disnppeared and deprivcd of any legal protection whatsoever for indefinite p<:riodsof time. then intcmational
law, for me, would becomc much lcss worthwhilc." Armed Actil·ities on the Terriwry qf the Congo (Democratie
Ri!pubii~~heiCongt>v. Uganda),.ludgment, l.C.J. Rep. 2()05, 168, Separorh1dge Sim111a,p. 350, para.
'Il.
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Written response of Georgia to the questions put by Judges Koroma and Cançado Trindade at the end of the public sitting held on Friday 17 September 2010