Written response of the Russian Federation to the questions put by Judges Koroma, Abraham and Cançado Trindade at the end of the public sitting held on Friday 17 September 2010

INTERNATIONAL COURT OF JUSTICE

APPLICATION OF THE INTERNATIONAL CONVENTION ON THE

ELllvllNATION OF ALL FORMS OF RACIALDISCRIMINATION

(GEORGIA vRUSSIANFEDERATION)

REPLIES OF THE RUSSIAN FEDERATION TO THE

QUESTIONS PUTTO THE PARTIES DURING THE ORAL

HEARING BYJUDGES KOROMA,ABRAHAM

AND CANÇADO TRINDADE

A. QUESTION PUT BYJUDGE KOROMA

"What precisely, in the view of the Parties, is the object and purpose of

the clause contained in Article 22 of the Convention on the Elimination

ofAil Forms of Racial Discrimination which reads as follows: "which is

not settled by negotiation or by the procedures expressly provided for in

this Convention"?"

Reply of the Russian Federation:

The concept of object and purpose is widely used in the 1969 Vienna

Convention on the Law of Treaties where it occurs in eight different
1
provisions and is usually related to the treaty as a whole. In particular,

according to Article 31 (1) of the Vienna Convention, it is used for the

purpose of enlightening the meaning of the words of a specifie clause:

"A treaty shall be interpreted in good faith in accordance with the

ordinary meaning to be given to the terms of the treaty in their context

and in the light of its object and purpose."

1Cf.articles 18, 19 (c), 20, paragraph 2, 31, paragraph 1, 33, paragrap(ii),41, paragraph 1 (b)
58, paragraph 1(iiand 60, paragraph 3 (b). 2

However, as the ILC has noted,

"It is by no means easy to put together in a single formula ail the

elements to be taken into account, in each specifie case, in determining

the object and purpose of the treaty. Such a process undoubtedly
2
requires more "espritdefinesse"than "espritdegéométrie"like any act,of

interpretation, for that matter - and this process is certainly one of

interpretation." 3

This is certainly also true when one endeavours to determine not the

object and purpose of a treaty as a whole, but that of particular terms in a

specifie provision of the tieaty, as requested in Judge Koroma's question.

In both cases, the object and purpose must be assessed by reference to

the intent of the Parties. To that end, the text of the clause will always

constitute the main element in the assessment of object and purpose.

When the object and purpose of the treaty or of a provision thereof is

not apparent from the text, it is natural and legitimate to draw it from the

drafting history of the treaty or of the clause in question.

Moreover, especially when a single provision, sentence, phrase or word is

concerned, the principle of the effeutile,to which the Russian Federation has
4
already made reference in its pleadings , has a particular role to play since it

2
Blaise Pascal,Pensées,in Œuvres complètes (Paris: Bibliothèque de la Pléiade,N.R.F.-Gallimard,
1954),p. 1091.
3 ILC,Report of the fifty-ninth session (2007}, General Assembly, Official Records, Supplement No. 10,
documentA/62/10, p. 77.
4 RPO,vol. I,pp. 85- 87 and in the course of its oral submissions at the preliminary objections stage
(CR2010/8, 13 Sep. 2010, pp. 44-45, paras. 10-13 (Pellet) and CR2010/10, 15 Sep. 2010, pp. 23-
24, paras 1-4 (Pellet)). 3

can sca.rcelybe accepted that words deliberately inserted in the treaty would

be superfluous - that is devoid of any object or purpose. This has been

underlined by the Court in several cases. For instance, in the TerritmialDispute

case, the Court underlined that no provision of a treaty could be considered as

superfl.uous, for this would mn contra.ry to the ordina.ry meaning of the text

and of its object and purpose:

"In the view of the Court, the terms of the Treaty signified that the
parties thereby recognized complete frontiers between their respective

territories as .resulting from the combined effect of all the instruments

listed in Annex 1; no relevant frontier was to be left undefined and no

instrument listed in Annex 1 was superfluous. It would be incompatible

with a recognition couched in such terms to contend that only sorne of

the specified instruments contributed to the definition of the frontier,

or that a particula.rfrontier remained unsettled. So to contend would be

to deprive Article 3 of the Treaty and Annex 1 of their ordina.ry

meaning" 5.

Nonetheless, in the present case, Georgia's interpretation of Article 22

CERD does render the terms referred toby Judge Koroma superfluous.

However, the expression "which is not settled by negociation or by the

procedures expressly provided for in this Convention" inserted in Article 22

CERD must have sorne object and purpose. It follows from a plain reading of

Article 22 that this phrase was inserted in order to indicate that these specified
means of settlement of disputes must be used and must be used prior to the

seisin of the Court, as the language used in Article 22 makes clea.r since

5ICJ,Judgment of 3 February 19Territorial Dispute (Libyan Arab jamahiriyajChad1994, p.
22, para. 43. For a specifie mention of the object of the treaty and its relation with the Annex 1
instruments, see.p. 24, para. 48. 4

negotiations or using the procedures provided for in the Convention cifterthe

Court has given its Judgment would be meaningless- that is devoid of any

effetutile.

The drafting history of this provision confinns this understanding of its

object and purposé and, at the same t:ime, dispels any doubt which could

remain as to the mea:oing of the conjunction "or": as shown during the

hearings, in a phrase like that at issue, "or" will usually have a cumulative
7
meaning . And, indeed, the travaux préparatoirelseave no doubt as to the

negotiators' intention to have any reference of a dispute to the Court

preceded by negotiations and by the conciliation procedures provided for in

CERD. Although the precise method of negotiation they had in mind might

be considered as uncertain (possibly within or outside the framework of

Articles 11 to 13 of the Convention), the travauxdemonstrate that the phrase

at issue was inserted into the text to make clear the requirement that the

parties have resort in the fust instance to the institutional procedures
8
provided for in these Articles.

In this way, States were provided with the means, but also the obligation,

to crystallize and then seek to settle the dispute before any unilateral
9
application was brought before the Court .The existence of such means/pre­

condition to jurisdiction was intended to defeat the reluctance on the part of

6It is undisputed that thtravaux préparatoirescan be a useful means to confirm the abject and
purpose ofa convention. See ICJ,Territorial Dispute case,above footnote, p. 27, para 55. See also ICJ,
Advisory opinion, 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Rep.4, p. 179, para. 109.
7CR2010/8, 13 Sep. 2010, pp. 54-55, para. 36 (Pellet) and CR2010/10, 15 Sep. 2010, p. 25, paras.
7-8 (Pellet).
8
RPO,vol. I, pp. 122- 127, paras. 4.67 - 4.72 and in the course of its oral submissions at the
preliminary objections stageCR2010/8, 13 Sep. 2010, p. 48, para. 23 and id, pp. 57 -58, para. 45
(Pellet) and CR2010/10, 15 Sep. 2010, pp. 28-29, paras 17-18 (Pellet).
9 See statement by M. Cochaux (Belgium), Russia, ]udges' Folder for the oral submissions on the
Preliminary Objections, Tab 3. Asto crystallization of the dispute see CR2010/8, 13 Sep. 2010, pp.
29-31, paras. 5-14, (Wordsworth) and CR 2010/10, 15 Sep. 2010, pp. 11-12, paras 5-10
(Wordsworth). Compare also Rules 69 and 72 of the CERDRules ofprocedure, CERD/C/35/Rev.3; cf.
CR2010/11, 17 Sep. 2010, p. 23, paras. 5-6, (Crawford). 5

vanous States to the possibility that the Court be seized by unilateral

application. At the same rime, the introduction of the second part of the

phrase by the three-Powers amendment was meant to harmonize the different

mechanisms of implementation provided for in the Convention, in particular,

to harmonize the Court's jurisdiction with the competence of the CERD

committee 10• Without such a compromise the whole Convention, and,

certainly, its compromissory clause would probably not have been adopted.

In the light of the text of the phrase, of thiffeutileprinciple, and of the

intention of its drafters as appears from the travaux,the object and purpose of

the phrase at issue in Article 22 is to make explicit the existence of

preconditions to the Court's seisin under CERD. This phrase is part and

parcel of the compromissory clause, and, therefore, negotiations and the

recourse to the procedures provided for in the Convention constitute pre­

conditions to States' acceptance of the Court's jurisdiction.

B. QUESTION POSÉE PAR M. LE JUGE ABRAHAM

"Au stade actuel de la procédure, la Cour est appelée seulement à se

prononcer sur les exceptions préliminaires soulevées par la Partie

défenderesse.

Compte tenu des débats qui ont eu lieu au cours des audiences, faut-il

comprendre que la Russie a retiré sa troisième exception en tant

qu'exception préliminaire?"

Réponse de la Fédérationde Russie:

Dans ses écritures, la Fédérationde Russie a soulevé quatre objections

préliminaires,la troisième ayant trait à la compétence rationelocide la Cour.

10
See statements by M. Lamptey (Ghana) and M.BouHet (France), Russia,judges' Folderfor the oral
submissions on the Preliminary Objections, Tab 6

Durant la procédure o.rale, la Russie a constaté que cette objection ne

présente pas un ca.ractè.reexclusivement p.réliminai.re 11.Pa.rconséquent et dans

l'hypothèse où la Cour déciderait qu'elle a compétence, la Russie l'invite à

aborder les questions .relatives à l'application extraterritoriale de la CERD

uniquement au stade de la procédure au fond.

Il ne doit pas en êtreconclu que la Russie ait .retiréla troisième objection

.relativeà la compétence rationelocide la Cour. Il s'agit plutôt d'une suggestion

de la part de la Russie- en ce qui concerne cette objection et cette objection

seulement tendant à ce qu'il soit sursis à l'examen de cette objection jusqu'à

la phase de l'examen au fond 12.

En conséquence, dans cette dernière hypothèse, la Russie se .réservele

d.roit de .revenir sur cette objection dans le cad.re de la procédure sur le fond

dans l'hypothèse où la Cour estimerait pouvoir exe.rce.rsa compétence au fond

dans la présente affaire (quodnon), c'est-à-dire où elle .rejetterait les autres

exceptions soulevéespa.rla Russie.

Reply of the Russian Federation:

In its written P.relimina.ryObjections the Russian Federation submitted

four p.relimina.ry objections. The third prelimina.ry objection related to the

Court's jurisdiction rationeloci.

During the o.ral hea.ring, Russia noted that this objection is not
13
necessarily of an exclusively p.relimina.rynature and, the.refo.re, .respectfully

11CR 2010/8, p. 26, para. 31 (Kolodkin)
12
CR 2010/10, p. 47, para. 49 (Zimmermann); CR 2010/10, p. 53, para. 23 (Gevorgian)
13
CR 2010/8, p. 26, para. 31 (Kolodkin) 7

invited the Court, should it ever decide to uphold jurisdiction, to address

issues related to the extraterritorial application of CERD as part of the merits

only14.

It was not meant to be understood that the third objection relating to the

Court's jurisdiction rationeloci should be considered as withdrawn. Rather,

Russia has merely - with regard to that objection and with regard to that

objection only- suggested that this objection should be decided at any merits

stage.

Accordingly, Russia reserves its right to come back to this objection as

part of the proceedings on the merits in the event that the Court finds that it

is in a position to exercise its jurisdiction in the case at hand (quodnon),i.e.

rejects Russia's other objections.

C. QUESTION PUT BYJUDGE CANÇADO TRINDADE

"In your understanding, does the nature of human rights treaties such as

the CERD Convention (regulating relations at intra-State leveD have a

bearing or incidence on the . interpretation and application of a

compromissory clause contained therein?"

Reply of the Russian Federation:

As a multi-ethnic State, the Russian Federation acknowledges and values

the specifie character of the CERD Convention as a treaty imposing upon

member States obligations primarily to be performed at the intra-State level.

This specifie character is, in many respects, reflected in the CERD's

1CR 2010/10, p. 47, para. 49 (Zimmermann); CR 2010/10, p. 53, para. 23 (Gevorgian) 8

uruque implementation and enforcement mechanism to which Article 22

specifically makes reference. This mechanism provides for reporting

obligations on the part of the States parties, which allows the Committee to
15
supervise the domestic practices of the contracting parties .

It equally establishes, through the Articles 11 to 13 procedure, a form of

collective guarantee of respect for the Convention by the States Parties, to be

ensured by an inter-State complaint and conciliation procedure under the

auspices of the Committee. No special acceptance of this procedure is needed;
the ratification by a State of the Convention makes this procedure

automatically applicable, and the procedure is mandatory so far as concerns

any respondent State. Thus the contracting parties, alongside the Committee,

become guarantors of the enforcement of the Convention.

Most notably, the Individual Complaint Procedure of Article 14 CERD

(which the Russian Federation has accepted since 1st October 1991)

underlines the intra-State character of the CERD Convention in that it

enables individuals themselves to take action vis-à-vis Contracting Parties

when the individual believes that there has been a violation of rights

protected by CERD.

The specifie importance of individual intra-State rights guaranteed by

CERD is also reflected in the practice of the CERD Committee, ù. in its

15
The unique .role of the human rights treaties' monitoring bodies, wbich reflects the
specifie character of human rights treaties, has recently been recognized by the
International Law Commission in its work on reservations. See for instance guideline 4.2.5
of the ILC Guide to Practice on reservations to treaties on the effect of reservations to non
reciprocal obligations and its commentaries (not yet publicly available). For the
commentaries of the Special Rapporteur, see Alain Pellet, FomtemthRcp011Reseruationtso
Treaties, ddmdum 2, document A/ CN.4/614/ Add.2, para. 285.

The ILC, most notably, has acknowledged the role of the monitoring bodies as
guardians of the treaties, through an express recognition of their competence to assess the
permissibilityf reservations. See guideline 3.2.2 and its commentary, OfficialRofothe
Genera/Assemb!JF, ifty-eiSession,SupplemmtNo. 10(A/64/10), pp. 297-299. 9

development of an urgent procedure to provide for the protection of

individual rights guaranteed by CERD when these are most endangered.

The Convention also contains implementation procedures of a more

traditional character (when compared with general international law) in the
form of inter-State dispute settlement before the International Court of

Justice under Article 22 CERD, which necessarily falls to be interpreted and

applied in the context of CERD's other implementation procedures. Bence,

and as also follows from the express language used in the provision, the rights

under Article 22 only come into play once a matter arising under CERD has

crystallised into an inter-State dispute and when, moreover, the disputant

parties have not been able to settle the dispute by inter-state negotiations and

by the procedures provided for in Articles 11 - 13 CERD.

Further, as follows from the combination of the subject-matter, as weil

as the intra- and inter-State features of CERD, the obligations under the

Convention are of an erga omnes nature. This also has a bearing on the

interpretation and application of Article 22 of the Convention and of the

procedures expressly provided for in this Convention to which Article 22

refers. As the Russian Federation stated in its Preliminary Objections, "[t]he

ergaomnescharacter of the obligations instituted therein [in CERD] is re:flected

in the procedures established by the Convention to deal with the inter-State

complaints, which involve the other Parties to the Convention" 16.

This interpretation of Article 22 CERD takes fullaccount of the specifie

intra-S c~aracter of the CERD Convention aimed at protecti.ng human

rights of individuals.

1RPO,vol.Ipara4.33.