Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) - Conclusion of the public hearings on Georgia's request for the in

INTERNATIONAL COURT OF JUSTICE

Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org

Press Release
Unofficial

2008/28 No.

Application of the International Convention on the Elimination of All Forms of

Racial Discrimination (Georgia v. Russian Federation)

Conclusion of the public hearings on Georgia’s request
for the indication of provisional measures

THE HAGUE, 11 September 2008. The public h earings on the request for the indication of
provisional measures submitted by Georgia to the Inte rnational Court of Justice (ICJ) in the case
concerning Application of the International Convent ion on the Elimination of All Forms of Racial

Discrimination (Georgia v. Russian Federation) were concluded yesterday.

On 12 August 2008 Georgia filed its application instituting proceedings against Russia for
violations of the Convention on the Elimination of All Forms of Racial Discrimination (see Press
Release No.2008/23). It submitted its request fo r the indication of provisional measures on

14 August 2008 (see Press Release No. 2008/24).

Two rounds of public hearings on the requ est were held from Monday 8 to Wednesday
10 September 2008 at the Peace Palace in The Hague, seat of the Court. During the hearings, the
delegation of Georgia was led by Ms Tina Burj aliani, First Deputy-Minister of Justice, and

H.E.Ms Maia Panjikidze, Ambassador of Georgi a to the Netherlands, as Agents. The delegation
of the Russian Federation was led by Mr. Roman Kolodkin, Director, Legal Department, Ministry
of Foreign Affairs of the Russian Federation, a nd H.E. Mr. Kirill Gevorgian, Ambassador of the
Russian Federation to the Netherlands, as Agents.

The Court’s decision will be delivered at a public sitting, the date of which will be
announced in due course.

At the hearings, Georgia developed its argumen ts in support of its request for the indication
of provisional measures of 14 August 2008 (see Press Release No. 2008/24), which it had amended

on 25 August 2008.

At the end of Georgia’s second round of oral ob servations, Ms Burjaliani, the latter’s Agent,
set out Georgia’s request for provisional measures as follows:

“Georgia respectfully requests the Court, as a matter of urgency, to order the following
provisional measures, pending its de termination of this case on the merits, in order to prevent
irreparable harm to the rights of ethnic Georgians under Articles 2 and 5 of the Convention on
Racial Discrimination:

(a)The Russian Federation shall take all necessary me asures to ensure that no ethnic Georgians or
any other persons are subject to violent or coerci ve acts of racial discrimination, including but
not limited to the threat or infliction of eath or bodily harm, hostage-taking and unlawful - 2 -

detention, the destruction or pillage of prope rty, and other acts intended to expel them from
their homes or villages in South Ossetia, Abkhazia and/or adjacent regions within Georgia;

(b) The Russian Federation shall take all necessary measures to prevent groups or individuals from
subjecting ethnic Georgians to coercive acts of racial discrimination, including but not limited
to the threat or infliction of death or bodily harm, hostage-taking and unlawful detention, the

destruction or theft of property, and other act s intended to expel them from their homes or
villages in South Ossetia, Abkhazia and/or adjacent regions within Georgia;

(c) The Russian Federation shall refrain from adopting any measures that would prejudice the right

of ethnic Georgians to participate fully and e qually in the public affairs of South Ossetia,
Abkhazia and/or adjacent regions of Georgia.

Georgia further requests the Court as a matter of urgency to order the following provisional

measures to prevent irreparable injury to the right of return of ethnic Georgians under Article 5 of
the Convention on Racial Discrimination pending th e Court’s determination of this case on the
merits:

(d) The Russian Federation shall refrain from taki ng any actions or supporting any measures that
would have the effect of denying the exercise by ethnic Georgians and any other persons who
have been expelled from South Ossetia, Abkhazia, and adjacent regions on the basis of their
ethnicity or nationality, their right of return to their homes of origin;

(e) The Russian Federation shall refrain from ta king any actions or supporting any measures by
any group or individual that obstructs or hinders the exercise of the righ t of return to South
Ossetia, Abkhazia, and adjacent regions by ethni c Georgians and any other persons who have

been expelled from those regions on the basis of their ethnicity or nationality;

(f) The Russian Federation shall refrain from adopting any measures that would prejudice the right
of ethnic Georgians to participate fully and equa lly in public affairs upon their return to South

Ossetia, Abkhazia, and adjacent regions.”

To those requests as presented in its 25 A ugust amended provisional measures Request, the
Agent continued, Georgia has added one other: “The Russian Federation shall refrain from

obstructing, and shall permit a nd facilitate, the delivery of humanitarian assistance to all
individuals in the territory under its control, regardless of their ethnicity.”

At the hearings, Russia told the Court that it should not indicate provisional measures as

requested by Georgia; Russia asked the Court “t o remove the case introduced by the Republic of
Georgia on 12 August 2008 from the General List”.

At the end of the Russian Federation’s second round of oral observations, Mr. Kolodkin, the

latter’s Agent, summarized the position of his Government as follows:

“First: The dispute that the Applicant has trie d to plead before this Court is evidently not a
dispute under the 1965 Convention. If there were a di spute, it would relate to the use of force,
humanitarian law, territorial integrity, but in any case not to racial discrimination.

Second: Even if this dispute were under the 1965 Convention, the alleged breaches of the
Convention are not capable of falling under the pr ovisions of the said Convention, not the least
because Articles 2 and 5 of the Convention are not applicable extraterritorially.

Third: Even if such breaches occurred, they c ould not, even prima facie, be attributable to
Russia that never did and does not now exercise, in the territories concerned, the extent of control
required to overcome the set threshold. - 3 -

Fourth: Even if the 1965 Convention could be applicable, which, I repeat, is not the case, the
procedural requirements of Article 22 of 1965 Convention have not been met. No evidence that the

Applicant proposed to negotiate or employ the mechanism of the Committee on Racial
Discrimination prior to reference to this Court, has been nor could have been produced.

Fifth: With these arguments in mind, the Cour t manifestly lacks jurisdiction to entertain the

case.

Sixth: Should the Court, against all odds, find itself prima facie competent over the dispute,
we submit that the Applicant has failed to de monstrate the criteria essential for provisional

measures to be indicated. No credible evidence h as been produced to attest to the existence of
imminent risk of irreparable harm, and urgency. The circumstances of the case definitely do not
require measures, in particular, in the light of the ongoing process of post-conflict settlement. And
the measures sought failed to take account of the key factor going to discretion: the fact that the

events of August 2008 were born out of Georgia’s use of force.

Finally: Provisional measures as they were formulated by the Applicant in the Requests
cannot be granted since they would impose on Russia obligations that it is not able to fulfil. The

Russian Federation is not exercising effective cont rol vis-à-vis South Ossetia and Abkhazia or any
adjacent parts of Georgia. Acts of organs of South Ossetia and Abkhazia or private groups and
individuals are not attributable to the Russian Federation. These measures if granted would
prejudge the outcome of the case.”

___________

The verbatim records of the hearings held from 8 to 10 September 2008 are available on the
Court’s website (www.icj-cij.org).

___________

Information Department :

Mrs. Laurence Blairon, Secretary of the Court, Head of the Department (+31 70 302 23 36)

Messrs. Boris Heim and Maxime Schouppe, Information Officers (+31 70 302 23 37)
Ms Joanne Moore, Associate Information Officer (+31 70 302 23 94)