INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE INTERNATIONAL CONVENTION ON TE-ffi
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
(GEORGIA v.RUSSIAN FEDERATION)
COMMENTS OF THE RUSSIAN FEDERATION
ON THE WRITTEN REPLIES OF GEORGIA TO THE QUESTIONS
PUTTO THE PARTIES DURING THE ORAL HEARING
BY JUDGES KOROMA AND CANÇADO TRINDADE
1 October 2010
A. COMMENTS ON THE ANSWER OF GEORGIA TO THE
QUESTION PUT BY JUDGE KOROMA
The Russian Federation has no difficulty with the first pmi of Georgia's
answer to Judge Koroma's question, which consists in asse1iing that the object
and pm-pose of the Convention on the Elimination of All Fonns of Racial
Discrimination is to eliminate racial discrimination. But this misses the point.
Judge Koroma's question conce1ns the more specifie issue of
"... the object and purpose of the clause contained in A1iicle 22 of the
Convention on the Elimination of All Forms of Racial Discrimination
which reads as follows: 'which is not settled by negotiation or by the
procedures expressly provided for in thisntion"'.
Again, the question is not to determine what is "appropriate" according to
Georgia (as it appears to contend in the concluding paragraph of its answer), but
what is the object and purpose of the phrase in question when interpreted
according to the general rule of interpretation, as embodied in Article 31 of the
1969 Vienna Convention on the Law of Treaties. In this respect, Georgia simply
sticks to an interpretation which deprives the phrase identified by Judge Koroma
of any object and purpose whatsoever.
In addition, the task of addressing that question is not assisted by the
incorrect characterisation of the conciliation procedures of CERD, which
Georgia seeks to downplay and distinguish by its reference to "the different
inquiry function of the bodies established by Pmi II". Articles 11- 13 of CERD
in fact establish a compulsory mechanism for the conciliation of inter-State
disputes (once crystallised in accordance with Articles 11(1) and 11(2) CERD). 2
It is also noted that Georgia, whether for reasons of sh01ihand or
otherwise, refers only to the first words - "which is not settled" - of the pln·ase
addressed in the question put by Judge K01·oma. This approach of Georgia is
entirely reflective of its attempts to deprive the phrase of all meaning - and
therefore of any possible object and purpose.
As a matter of fact, the phrase does not stop after these four words, but
continues precisely to indicate what means of dispute settlement must be used as
preconditions for the unilateral submission of the dispute to the Court by a State
Pmiy. It is the entirety of the phrase "which is not settled by negotiation or by
the procedures expressly provided for in this Convention", that makes it
meaningful and, by the same token, reveals its clear object and pm-pose.
As demonstrated again in the Russian response, the clear object and
pm-pose of the provision in question, when intm-preted "in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in
their context" was - and is - to oblige the Contracting Parties of CERD to
attempt to settle a dispute concerning the interpretation or application of the
Convention by negotiation or by the procedures expressly provided for in the
Convention before being able to submit it to the Comi should those attempts
have failed.
This is the only possible interpretation if one wants to give effect to the
phrase at issue.
This interpretation is fu1iher confirmed by the draftin2 history of that
phrase. As demonstrated in Russia's Preliminary Objections and during the oral
hearings/ the part of the phrase refening to the "procedures expressly provided
for..." was deliberately inse1ied into the draft Convention at a late stage, as a
compromise solution in a situation where a number of delegations were
unwilling to agree on the compulsory jurisdiction of the Court.
In this respect, the Russian Federation notes again that Georgia invokes
the travaux préparatoires of the Convention in supp01i of its views but, while
quoting sorne extracts of the summary records of the discussions in order to
establish the general object and purpose of the Convention, Georgia tellingly
does not quote any passage when it cornes to defining the object and pm·poseof
the expression in question.
2 See in particular the two last paragraphs of Georgia's answer.
Preliminary Objections of the Russian Federation, vol.I, pp.125-126.
CR 2010/8, pp. 56-57 (Pellet). 3
B. COMMENTS ON THE ANSWER OF GEORGIA TO THE
QUESTION PUT BY JUDGE CANÇADO TRINDADE
As set out in further detail in its own answer to the question asked by
Judge Cançado Trindade, the Russian Federation fully accepts the erga omnes
nature of the rights protected by human rights treaties, including CERD.
With respect to the interpretationof compromissory clauses contained in
such treaties, the Russian Federation likewise accepts that these are special in
nature in that any State Party thereto may bring a dispute concerning a breach of
those obligations by another State Party before the Court. However, that does
not mean that the specifie pre-conditions to jurisdiction in the given
compromissory clause may be bypassed, or that the compromissory clause
should be interpreted entirely in isolation from the relevant context, which may
(and, in this case,does) comprise inter-related dispute settlement mechanisms
within the treaty itself.
As the Court has already had occasion to emphasize,
"... 'the erga omnes character of a nonn and the rule of consent to
jurisdiction are two different things' (East Timor (Portugal v. Australia),
Judgment, IC.J. Reports 1995, p. 102, para. 29), and ... the mere fact that
rights and obligations erga on'znesmay be at issue in a dispute would not
give the Court jurisdiction to entertain that dispute.
The same applies to the relationship between peremptory norms of
general international law (jus cogens) and the establishment ofthe Court's
jurisdiction: the fact that a dispute relates to compliance with a norm
having such a character, which is assuredly the case with regard to the
prohibition of genocide, cannat of itself provide a basis for the jurisdiction
of the Court to entertain that dispute. Under the Court's Statute that
jurisdictionis always based on the consent of the parties.
65. As it recalled in its Order of 10 July 2002, themio has jurisdiction in
respect of States only to the extent that they have consented thereto
(Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratie Republic of the Congo v. Rwanda), Provisional Measures,
Order of JO July 2002, IC.J. Reports 2002, p. 241, para. 57). When a
compromissory clause in a treaty provides for the Court's jurisdiction, that
jurisdiction exists only in respect of the parties to the treaty who are 4
bound by that clause and within the limits set out therein (ibid., p. 245,
para. 71)".4
This is also true in respect of CERD. And neither the interest in the
protection of the rights protected by CERD nor, more generally, the interests of
inte1nationaljustice would be served by violation of this fundamental principle.
In the present case, Article 22 CERD strikes a deliberate and fair balance
between the (compulsory) jurisdiction of the Court on the one hand and the
(preliminary) mandatory inter-State. conciliation by the CERD Committee
deliberately instituted by the Convention on the other. This in tu1n reflects the
balance to be achieved between the breadth of the category of potential claimant
States under A1iicle 22 (given the erga omnes nature of obligations under
CERD) and the interests of respondent States in only appearing before the Court
once disputes have been crystallised and the requisite attempts at settlement
have failed.
The CERD Committee has the primary role as to the implementation and
supervision of CERD including through the settlement of eventual disputes
between States Pmiies. The fact that the Convention provides for a possibility of
seizing the Comi should not be interpreted to the detriment of the Committee's
vital functions.
Lessening the role of the CERD Committee would cmiainly neither be in
line with the intentions of the drafters of CERD, nor would it contribute to
preserving the special nature of human rights treaties in general, nor that of
CERD in pmiicular.
4
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratie
Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, IC.J Reports
2006, p. 32, paras. 64-65.
The Russian Federation's comments on Georgia's written response to the questions put by Judges Koroma and Cançado Trindade at the end of the public sitting held on Friday 17 September 2010