Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) - Preliminary Objections - The Court finds that it has no jurisdict

INTERNATIONAL COURT OF JUSTICE

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Press Release
Unofficial

No. 2011/9
1 April 2011

Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation)

Preliminary Objections

The Court finds that it has no jurisdiction to decide the dispute

THE HAGUE, 1 April 2011. The International Court of Justice (ICJ), principal judicial
organ of the United Nations, today rendered its Judgment on the preliminary objections raised by
the Russian Federation in the case concerning Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation).

In its Judgment, the Court

“(1) (a) by twelve votes to four,

Rejects the first preliminary objection raised by the Russian Federation;

IN FAVOUR : PresidentOwada; JudgeAs l-Khasawneh, Simma, Abraham, Keith,
Sepúlveda-Amor, Bennouna, Cançado Tr indade, Yusuf, Greenwood, Donoghue;
Judge ad hoc Gaja;

AGAINST : Vice-PresidentTomka; Judges Koroma, Skotnikov, Xue;

(b) by ten votes to six,

Upholds the second preliminary objection raised by the Russian Federation;

IN FAVOUR : Vice-President Tomka; JudgesKoroma, Al-Khasawneh, Keith, Sepúlveda-Amor,
Bennouna, Skotnikov, Yusuf, Greenwood, Xue;

AGAINST : PresidentOwada; JudgesSimma, Abraham, Cançado Trindade, Donoghue;

Judge ad hoc Gaja;

(2) by ten votes to six,

Finds that it has no jurisdiction to entertain the Application filed by Georgia on

12 August 2008. - 2 -

IN FAVOUR : Vice-President Tomka; Judges Koroma, Al-Khasawneh, Keith, Sepúlveda-Amor,
Bennouna, Skotnikov, Yusuf, Greenwood, Xue;

AGAINST : President Owada; Judges Simma, Abraham, Cançado Trindade, Donoghue;
Judge ad hoc Gaja.”

History of the proceedings

The history of the proceedings can be found in Press Release No. 2011/7 of 15 March 2011.

Reasoning of the Court

Introduction (paras. 20-22)

After a brief procedural history, the Court recalls that to found the jurisdiction of the Court

Georgia relied on Article22 of the International Convention on the Elimination of All Forms of
Racial Discrimination (hereinafter “CERD”), whic h entered into force as between the Parties on
2July1999, and that the Russian Federation raised four preliminary objections to the jurisdiction
of the Court. Article 22 of CERD reads as follows:

“[a]ny 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 Conve ntion, shall, at the request of any of
the parties to the dispute, be referred to th e International Court of Justice for decision,
unless the disputants agree to another mode of settlement”.

First preliminary objection ⎯ Existence of a dispute (paras. 23-114)

The Court considers the first preliminary obj ection, according to which there is no dispute
between Georgia and the Russian Federation. Af ter reviewing the Parties’ arguments, the Court

begins by examining the meaning of the word “dispute” in Article22 of CERD. The Court does
not accept the Russian Federation’s contention that th is term should be given in that provision a
narrower interpretation than that to be found in gene ral international law. The Court recalls that in
its jurisprudence, “[a] dispute is a disagreement on a point of law or fact, a conflict of legal views

or of interests between two persons” and stresses that its determination must turn on an
examination of the facts. The Court observes that the existence of a dispute may be inferred from
the failure of a State to respond to a claim in circumstances where a response is called for.

The Court then sets out the steps it will follow in order to establish the existence or otherwise
of a dispute under Article22 of CERD. The Court needs to determine (1)whether the record
shows a disagreement on a point of law or fact between the two States; (2)whether that
disagreement is with respect to “the interpre tation or application” of CERD, as required by

Article 22 of CERD; and (3) whether that disagreem ent existed as of the date of the Application.
In terms of the legal significance to be accorded to the various documents and statements adduced
by the Parties, the Court states its intention to lim it itself to official documents and statements, and

to make a distinction between documents issued and statements made be fore and after Georgia
became party to CERD.

In order better to understand the context in which these documents and statements were
issued or made, the Court begins by addressing the relevant agreements reached in the 1990s

concerning the situation in South Ossetia and Abkhazia, and the pertinent Security Council
resolutions adopted from the 1990s until early 2008. - 3 -

A number of documents and statements from the period before CERD entered into force
between the Parties are also assessed as to their relevance in offering context to later documents

and statements referred to by the Parties. Th e Court concludes that none of these documents or
statements provides any basis for a finding that th ere was a dispute between the Parties concerning
racial discrimination before 2July1999. The Co urt adds that even if a dispute about racial
discrimination had been found to have existed, it c ould not have been a dispute with respect to the

interpretation or application of CERD, the only kind of dispute in respect of which the Court is
given jurisdiction by Article 22 of that Convention.

The Court then focuses its attention on documents and statements from the period after

CERD entered into force between the Parties and before the beginning of armed conflict between
the Parties in early August2008. On the basis of its review the Court concludes that no legal
dispute arose between Georgia and the Russian Fede ration during that period with respect to the
interpretation and application of CERD.

Turning to the events that unfolded in early August 2008, in particular the armed hostilities
in South Ossetia that began during the night of 7 to 8 August 2008, the Court observes that, while
the claims levelled against the Russian Federati on by Georgia between 9 and 12 August 2008 (the

day on which Georgia submitted its Application) were primarily claims about the unlawful use of
force, they also expressly referred to ethnic cleansi ng by Russian forces. These claims were made
against the Russian Federation directly and were re jected by the latter. The Court therefore finds
that by 12 August 2008, there was a dispute between Georgia and the Russian Federation about the

latter’s compliance with its obligations under CE RD. The first preliminary objection of the
Russian Federation is accordingly dismissed.

Second preliminary objection ⎯ Procedural conditions in Article22 of CERD
(paras. 115-184)

The Court next examines the second preliminar y objection according to which the Russian

Federation asserts that Georgia is precluded from having recourse to the Court as it has failed to
satisfy two procedural preconditions contained in Article22 of CERD, namely, negotiations and
referral to procedures expressly provided for in the Convention. For its part, Georgia maintains
that Article22 does not establish any express ob ligation to negotiate nor does it establish any

obligation to have recourse to the procedures provided for in CERD before the seisin of the Court.

Before providing its interpretati on of Article 22 of CERD, the Court recalls that in its Order
on the indication of provisional measures of 15October2008 it made a provisional finding as to

the meaning of the expression “which is not settled by negotiation”. The Court further recalls that
in that Order it also indicated that its provisiona l conclusion was without prejudice to its definitive
decision on the question of whether it has jurisdicti on to deal with the merits of the case. The

Court in addition observes that it is not unusual in compromissory clauses conferring jurisdiction
on the Court and other international jurisdictions to refer to resort to negotiations.

The Court then proceeds to the determination of the ordinary meaning of the terms used in
Article22 of CERD with a view to ascertaining wh ether this Article contains preconditions to be

met before the seisin of the Court. The Court notes that the expression “dispute... which is not
settled” must be given effect. According to the C ourt, the express choice of two modes of dispute
settlement, namely, negotiations or resort to the special procedures under CERD, suggests an

affirmative duty to resort to them prior to seisin. In addition, the Court observes that the use of the
future perfect tense in the French version of the text further reinforces the idea that an attempt to
settle the dispute must have taken place before refe rral to the Court. In this regard, it points out
that the other three authentic texts of CERD, namely the Chinese, the Russian and the Spanish

texts, do not contradict this interpretation. The Court, having reviewed its jurisprudence
concerning compromissory clauses comparable to Article 22 of CERD, further observes that it has - 4 -

consistently interpreted the reference to negotiations in such clauses as constituting a precondition
to seisin. Accordingly, the Court concludes that in their ordinary meaning, the terms of Article 22

of CERD, namely “[a]ny dispute... which is not settled by negotiation or by the procedures
expressly provided for in this Convention”, establis h preconditions to be fulfilled before the seisin
of the Court.

The Court states that, in light of this conclusion on the meaning of Article22, it need not
resort to supplementary means of interpretation. However as both Parties have made extensive
arguments relating to the travaux préparatoires of CERD, and given the further fact that in other
cases, the Court has resorted to the travaux in order to confirm its reading of the relevant texts, the

Court considers that in this case an examination of the travaux préparatoires is warranted. After
reviewing the Parties’ arguments on the question, the Court notes that, whilst no firm inferences
can be drawn from the drafting history of CERD as to whether negotiations or the procedures
expressly provided for in the Convention were meant as preconditions for recourse to the Court, it

is possible nevertheless to conclude that the travaux préparatoires do not suggest a different
conclusion from that at which the Court has alre ady arrived through the main method of ordinary
meaning interpretation.

Having thus interpreted Article 22 of CERD to the effect that it imposes preconditions which
must be satisfied before resorting to the Court, the next question addressed by the Court is whether
these preconditions were complied with in the current instance. First of all, the Court notes that
Georgia did not claim that, prior to seising the Court, it used or attempted to use the procedures

expressly provided for in CERD. The Court theref ore limits its examination to the question of
whether the precondition of negotiations was fulfilled.

In seeking to determine what constitutes negotiations, the Court first observes that

negotiations are distinct from mere protests or disputations. In its view, the concept of
“negotiations” requires ⎯ at the very least ⎯ a genuine attempt by one of the disputing parties to
engage in discussions with the other disputing party, with a view to resolving the dispute.

According to the Court, in the absence of ev idence of a genuine attempt to negotiate, the
precondition of negotiation is manifestly not met. Where negotiations are attempted or have
commenced, the precondition of negotiation is me t only when there has been a failure of
negotiations, or when negotiations have become futile or deadlocked. Concerning the substance of

negotiations, the Court observes that the absence of an express reference to the treaty in question
during negotiations does not bar the invocation of the compromissory clause to establish
jurisdiction. However, to meet the precondition of negotiation in the compromissory clause of a
treaty, these negotiations must relate to the subject-matter of that treaty.

Against the background of these criteria, the C ourt turns to the evidence submitted to it by
the Parties to determine whether, at the time Georgia filed its Application on 12 August 2008, there
had been negotiations between Georgia and the Ru ssian Federation concerning the subject-matter

of their legal dispute under CERD, and if so, wh ether these negotiations had been unsuccessful. In
view of the Court’s earlier finding that a di spute between Georgia and the Russian Federation
falling within the ambit of CERD arose only in the period immediately before the filing of the
Application, the Court notes that it was only possible for the Parties to be negotiating the matters in

dispute during that relevant period, i.e., betw een 9August2008 and 12August2008. The Court
also observes that it follows that it cannot accord any legal significance to earlier negotiations
between the Parties which took place between Georgia and the Russian Federation before
9 August 2008. After reviewing the facts in the reco rd during the period of dispute, the Court is of

the view that, although certain claims and count er-claims made by the Parties concerning ethnic
cleansing may evidence the existence of a dispute as to the interpretation and application of CERD,
these exchanges did notconstitute attempts at ne gotiations by either Party. The Court thus

concludes that the facts in the record show that, between 9August and 12August2008, Georgia
did not attempt to negotiate CERD-related ma tters with the Russian Federation, and that, - 5 -

consequently, Georgia and the Russian Federation di d not engage in negotia tions with respect to
the latter’s compliance with its substantive obligations under CERD.

The Court refers back to its earlier comment that Georgia did not claim to have used, prior to
the seisin of the Court, the other mode of dise resolution contained at Article22, namely the

procedures expressly provided for in CERD. Considering the Court’s conclusion that, under
Article22 of CERD, negotiations and the proce dures expressly provided for in CERD constitute
preconditions to its jurisdiction, and considering the factual finding that neither of these two modes
of dispute settlement was attempted by Georgia, th e Court finds that it does not need to examine

whether the two preconditions are cumulative or alternative.

The Court accordingly concludes that neither requirement contained in Article22 has been
satisfied. Article22 of CERD thus cannot serve to found the Court’s jurisdiction in the present

case. The Court therefore upholds the second preliminary objection of the Russian Federation.

Third and fourth preliminary objections (para. 185)

Having upheld the second preliminary objection of the Russian Federation, the Court finds
that it is required neither to consider nor to rule on the other objections to its jurisdiction raised by
the Russian Federation and that the case cannot proceed to the merits phase.

Lapse of the Court’s Order of 15 October 2008 (para. 186)

The Court recalls that, in its Order of 15October2008, it indicated certain provisional
measures. The Court informs the Parties that this Order ceases to be operative upon the delivery of

the Judgment on preliminary objections. It addshowever that the Parties are under a duty to
comply with their obligations under CERD, of which they were reminded in that Order.

Composition of the Court

The Court was composed as follows: President Owada; Vice-President Tomka;
Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov,

Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue; Judge ad hoc Gaja; Registrar Couvreur.

President O WADA and Judges S IMMA , ABRAHAM , D ONOGHUE and Judge ad hoc G AJA
append a joint dissenting opinion to the Judgment of the Court; PresidentOWADA appends a

separate opinion to the Judgment of the Court; Vice-PresideOMKA appends a declaration to the
Judgment of the Court; JudgesK OROMA , SIMMA and ABRAHAM append separate opinions to the
Judgment of the Court; JudgeS KOTNIKOV appends a declaration to the Judgment of the Court;
Judge CANÇADO TRINDADE appends a dissenting opinion to the Judgment of the Court;

Judges GREENWOOD and D ONOGHUE append separate opinions to the Judgment of the Court.

___________

A summary of the Judgment is published in the document entitled “Summary No.2011/1”,
to which summaries of the declaration and opinion s attached to the Judgment are annexed. The

present Press Release, the summary and the full te xt of the Judgment also appear on the Court’s
website under the “Docket” and “Decisions” headings (www.icj-cij.org).

___________ - 6 -

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Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
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Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)