Non Corrigé
Uncorrected
CR 2010/11
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2010
Public sitting
held on Friday 17 September 2010, at 10 a.m., at the Peace Palace,
President Owada presiding,
in the case concerning Application of the International Convention on
the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation)
________________
VERBATIM RECORD
________________
ANNÉE 2010
Audience publique
tenue le vendredi 17 septembre 2010, à 10 heures, au Palais de la Paix,
sous la présidence de M. Owada, président,
en l’affaire relative à l’Application de la convention internationale
sur l’élimination de toutes les formes de discrimination raciale
(Géorgie c. Fédération de Russie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presiewtada
Vice-Presdenkta
Judges Koroma
Al-Khasawneh
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Judge ad hoc Gaja
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : M. Owada,président
viceMpra,ident
KoMroMa.
Al-Khasawneh
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Crinçade
Yusuf
Greenwood
XuMe mes
Dojnogshue,
jugeGaja,. ad hoc
Cgoffrerr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Georgia is represented by:
Ms Tina Burjaliani, First Deputy-Minister of Justice,
H.E. Mr. Shota Gvineria, Ambassador of Georgia to the Kingdom of the Netherlands,
a s Agents;
Mr. Payam Akhavan, LL.M., S.J.D. (Harvard), Pr ofessor of International Law, McGill University,
Member of the Bar of New York,
as Co-Agent and Advocate;
Mr.James R.Crawford, S.C., LL.D., F.B.A., Whew ell Professor of International Law, University
of Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers,
Mr.PhilippeSands, Q.C., Professor of Law, University College London, Barrister, Matrix
Chambers,
Mr. Paul S. Reichler, Foley Hoag LLP, Washington D.C., Member of the Bars of the United States
Supreme Court and the District of Columbia,
as Advocates;
Ms Nino Kalandadze, Deputy Minister of Foreign Affairs,
Mr. Giorgi Mikeladze, Consul, Embassy of Georgia in the Kingdom of the Netherlands,
Ms Khatuna Salukvadze, Head of the Political Department, Ministry of Foreign Affairs,
Ms Nino Tsereteli, Deputy Head of the Department of State Representation to International Human
Rights Courts, Ministry of Justice,
Mr.ZacharyDouglas, Barrister, Matrix Chambers, Lecturer, Faculty of Law, University of
Cambridge,
Mr.AndrewB.Loewenstein, Foley Hoag LLP, Member of the Bar of the Commonwealth of
Massachusetts,
Ms Clara E. Brillembourg, Foley Hoag LLP, Member of the Bars of the District of Columbia and
New York,
MsAmy Senier, Foley Hoag LLP, Member of th e Bars of the Commonwealth of Massachusetts
and New York,
as Advisers. - 5 -
Le Gouvernement de Géorgie est représenté par :
Mme Tina Burjaliani, premier vice-ministre de la justice,
S. Exc. M. Shota Gvineria, ambassadeur de Géorgie auprès du Royaume des Pays-Bas,
comme agents ;
M.PayamAkhavan, LL.M., S.J.D. (Harvard), pr ofesseur de droit international à l’Université
McGill, membre du barreau de New York,
comme coagent et avocat;
M.James R.Crawford, S.C., LL.D., F.B.A., professeur de droit international à l’Université de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
Matrix Chambers,
M.PhilippeSands, Q.C., professeur de droit au University College de Londres, avocat, Matrix
Chambers,
M. Paul S. Reichler, cabinet Foley Hoag LLP, W ashington D.C., membre des barreaux de la Cour
suprême des Etats-Unis d’Amérique et du district de Columbia,
comme avocats ;
Mme Nino Kalandadze, vice-ministre des affaires étrangères,
M. Giorgi Mikeladze, consul à l’ambassade de Géorgie aux Pays-Bas,
MmeKhatuna Salukvadze, chef du département des affaires politiques au ministère des affaires
étrangères,
MmeNino Tsereteli, chef adjoint chargé de la représentation de l’Etat auprès des juridictions
internationales des droits de l’homme au ministère de la justice,
M. Zachary Douglas, avocat, Matrix Chambers, chargé de cours à la faculté de droit de l’Université
de Cambridge,
M.Andrew B.Loewenstein, cabinet Foley Ho ag LLP, membre du barreau du Commonwealth du
Massachusetts,
MmeClara E.Brillembourg, cabinet Foley Hoag LLP, membre des barreaux du district de
Columbia et de New York,
MmeAmySenier, cabinet Foley Hoag LLP, membre des barreaux du Commonwealth du
Massachusetts et de New York,
comme conseillers. - 6 -
The Government of the Russian Federation is represented by:
H.E. Mr. Kirill Gevorgian, Director, Legal Departme nt, Ministry of Foreign Affairs of the Russian
Federation,
H.E.Mr.Roman Kolodkin, Ambassador of the Russian Federation to the Kingdom of the
Netherlands,
as Agents;
Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre-La Défense, member and former
Chairman of the International Law Commission, associate member of the Institut de droit
international,
Mr. Andreas Zimmermann, Dr. jur. (Heidelberg), LL.M. (Harvard), Professor of International Law
at the University of Potsdam, Director of the Postdam Center of Human Rights, Member of the
Permanent Court of Arbitration,
Mr.Samuel Wordsworth, member of the English Bar, member of the Paris Bar, Essex Court
Chambers,
as Counsel and Advocates;
Mr. Evgeny Raschevsky, Egorov Puginsky Afanasiev & Partners,
Mr. M. Kulakhmetov, Adviser to the Minister of Foreign Affairs of the Russian Federation,
Mr. V. Korchmar, Principal Counsellor, Fourth CIS Department, Ministry of Foreign Affairs of the
Russian Federation,
Mr.GrigoryLukyantsev, Senior Counsellor, Permanent Mission of the Russian Federation to the
United Nations, New York,
Mr.IvanVolodin, Acting Head of Section, Legal Department, Ministry of Foreign Affairs of the
Russian Federation,
Mr.MaximMusikhin, Counsellor, Embassy of the Russian Federation in the Kingdom of the
Netherlands,
MsDianaTaratukhina, Third Secretary, Perman ent Mission of the Russian Federation to the
United Nations, New York,
Mr.ArsenDaduani, Third Secretary, Embassy of the Russian Federation in the Kingdom of the
Netherlands,
Mr. Sergey Leonidchenko, Attaché, Legal Department, Ministry of Foreign Affairs of the Russian
Federation,
MsSvetlanaShatalova, Attaché, Embassy of the Russian Federation in the United States of
America,
Ms Daria Golubkova, expert, Ministry of Foreign Affairs of the Russian Federation,
Mr. M. Tkhostov, Deputy Chief of Administration, Government of North Ossetia-Alania, - 7 -
Le Gouvernement de la Fédération de Russie est représenté par :
S.Exc.M.KirillGevorgian, directeur du département des affaires juridiques du ministère des
affaires étrangères de la Fédération de Russie,
S. Exc. M. Roman Kolodkin, ambassadeur de la Fédération de Russie auprès du Royaume des
Pays-Bas,
comma egents ;
M. Alain Pellet, professeur à l’Université de Pari s Ouest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,
M.Andreas Zimmermann, docteur en droit (Université de Heidelberg), LL.M. (Harvard),
professeur de droit international à l’Université de Potsdam, directeur du centre des droits de
l’homme de Potsdam, membre de laCour permanente d’arbitrage,
M. Samuel Wordsworth, membre des barreaux d’Angleterre et de Paris, Essex Court Chambers,
comme conseils et avocats ;
M. Evgeny Raschevsky, cabinet Egorov Puginsky Afanasiev & Partners,
M. M. Kulakhmetov, conseiller du ministre des affaires étrangères de la Fédération de Russie,
M.V.Korchmar, conseiller principal au qu atrième département de la Communauté d’Etats
indépendants du ministère des affaires étrangères de la Fédération de Russie,
M.GrigoryLukyantsev, conseiller principal à la mission permanente de la Fédération de Russie
auprès de l’Organisation des Nations Unies à New York,
M.IvanVolodin, chef de division par intérim du département des affaires juridiques du ministère
des affaires étrangères de la Fédération de Russie,
M. Maxim Musikhin, conseiller à l’ambassade de la Fédération de Russie aux Pays-Bas,
MmeDianaTaratukhina, troisième secrétaire à la mission permanente de la Fédération de Russie
auprès de l’Organisation des Nations Unies à New York,
M. Arsen Daduani, troisième secrétaire à l’ambassade de la Fédération de Russie aux Pays-Bas,
M.SergeyLeonidchenko, attaché au département des affaires juridiques du ministère des affaires
étrangères de la Fédération de Russie,
MmeSvetlanaShatalova, attaché à l’ambassade de la Fédération de Russie aux Etats-Unis
d’Amérique,
Mme Daria Golubkova, expert au ministère des affaires étrangères de la Fédération de Russie,
M. M. Tkhostov, chef adjoint de l’administration, gouvernement d’Ossétie du Nord-Alanie, - 8 -
Ms Amy Sander, member of the English Bar,
Mr.Christian Tams, LL.M., PhD. (Cambridge), Pr ofessor of International Law, University of
Glasgow,
MsAlina Miron, Researcher, Centre for International Law (CEDIN), University Paris Ouest,
Nanterre-La Défense,
Ms Elena Krotova, Egorov Puginsky Afanasiev & Partners,
Ms Anna Shumilova, Egorov Puginsky Afanasiev & Partners,
Mr. Sergey Usoskin, Egorov Puginsky Afanasiev & Partners,
as Advisers. - 9 -
Mme Amy Sander, membre du barreau d’Angleterre,
M.ChristianTams, LL.M., docteur en droit (U niversité de Cambridge), professeur de droit
international à l’Université de Glasgow,
Mme Alina Miron, chercheur au Centre de droit international de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,
Mme Elena Krotova, cabinet Egorov Puginsky Afanasiev & Partners,
Mme Anna Shumilova, cabinet Egorov Puginsky Afanasiev & Partners,
M. Sergey Usoskin, cabinet Egorov Puginsky Afanasiev & Partners,
commc eonseillers. - 10 -
The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the
second round of oral argument of Georgia. I shall now give the floor to the first speaker, who is
Paul Reichler: you have the floor.
RMEr. HLER:
THE EXISTENCE OF A DISPUTE AND NEGOTIATIONS
1. Mr. President, Members of the Court, good morning.
2. Russia’s case ⎯ that there is no legal dispute between the Parties under the CERD
Convention, and that no negotiations ever took place on matters of ethnic discrimination ⎯
requires the Court to ignore well-established principles of international law.
3. If you think I may be exaggerating, you don’t ha ve to take my word for it. You can take
that of Russia’s counsel, Mr. Wordsworth. This is what he said on Wednesday: “Russia’s case is
1
that the general principles do not apply.”(Emphasis added.)
4. Now that is quite a high bar Russia has set for itself.
5. And they go to some very imaginative extr emes to attain it. Not only do they cast aside
some of the Court’s most venerable rules on determ ining whether a dispute exists; but they also
invent an entire panoply of new rules to replace them.
6. This is most apparent in their effo rt to impeach and disqualify the voluminous
documentary evidence that Georgia presented in th e first round, and in its Written Statement,
showing that a dispute existed between the Parti es in regard to matters falling under the CERD
Convention as of the date of Georgia’s Application [12 August 2008].
7. I will begin today by giving brief res ponses to Russia’s various challenges to these
documents. Then I will respond to Russia’s denial that this case is about ethnic discrimination, and
its insistence that the “real” dispute is about armed conflict or the legal status of territories. I will
conclude with Georgia’s view of what this dispute is about.
8. First, the documents. And the first of these challenged by Russia is the statement by
President Saakashvili on 25 February 2004 that “most of the population” in Abkhazia had been
1
CR 2010/10, p. 13, para. 12 (Wordsworth). - 11 -
“ethnically Georgian” but they were “thrown out by Russian troops and local separatists” and that
this problem is “primarily [an] issue of our relati ons with Russia” since “[t]he Russian generals are
in command there . . .” 2 Mr. Wordsworth does not dispute that the statement was made, or that it
accused Russia of ethnic discrimination. Inst ead, he challenges me for referring to it as
“widely-disseminated”, but then, in his next sentence, he acknowledges that it was broadcast live
3
on the BBC . Then he reveals that it was a call-in format, where listeners could call in and ask
questions of the Georgian President, and, as if by providence, one of the callers was “Alexei from
Moscow” 4. So, thanks to him, it is confirmed that President Saakashvili’s statement was broadcast
to Russia.
9. But Mr.Wordsworth says that the stat ement still does not count, because it was made
during an interview in which the President addressed various topics 5. That is a new rule of
international law. A claim made publicly by a Head of State against another State does not
constitute evidence of a dispute, unless the statement is entirely devoted to that single claim. If any
other subjects are included in the statement, it does not count. A rather strange rule.
10. Mr.Wordsworth next challenges Presi dent Saakashvili’s address to the European
Parliament in November 2006, in which the President said that Russia “first undertook ethnic
6
cleansing” in the 1990s, and that “history seems to be repeating itself” . This one does not count
either, because the Georgian President was quoting the words of a prominent Georgian filmmaker 7.
Another new rule of international law. A statem ent cannot be attributable to you if it was first
made by someone else, even though you cite it a pprovingly. Here, after quoting the words of the
filmmaker, President Saakashvili expressly adopted th em as his own, stating: “This is the painful
legacy we have inherited. And this is the lawl essness and injustice that we confront. And this
2
“Ask Georgia’s President”, BBC News (25 Feb. 2004); WSG, Vol. IV, Ann. 198.
3CR2010/10, p.19, para.24 (Wordsworth) (citing “Ask Georgia’s President”, BBC News , 25 Feb. 2004;
emphasis added; WSG, Vol. IV, Ann. 198).
4Ibid.
5CR 2010/10, p. 19, para. 24 (Wordsworth).
6CR 2010/10, p. 20, para. 26 (Wordsworth) (quoting Office of the President of Georgia, Press Release, “Remarks
by The President of Georgia Mikheil Saakash vili to the European Parliament, Strasbourg”, 14 Nov. 2006; WSG,
Vol. IV, Ann. 172.).
7CR 2010/10, p. 19, para. 26 (Wordsworth). - 12 -
8
time, let us not be silent.” Under the new rule, when on Tuesday ProfessorSands read
approvingly from an article by Judge Buergenthal, regarding the extraterritorial reach of human
9
rights treaties , you may not presume that he was in agreement with or endorsing what
Judge Buergenthal said.
11. Mr.Wordsworth next attempts to disqualify PresidentSaakashvili’s statement to the
Security Council in September 2007, for the reason that is not absolutely clear his charge of
practising the “morally repugnant politics of ethnic cleansing, division, violence and division” was
10
directed at Russia . He does not suggest who else was being accused. Georgia says it was Russia,
as an objective reading of the text will prove. In regard to this same document, Mr.Wordsworth
quickly brushed past what he euphemistically referred to an “oblique reference to Russian
11
peacekeepers” . Here is that reference:
“In the time since Russian peacekeepers were deployed there, more than 2,000
Georgians have perished and a climate of fear has persisted... Years of biased and
unbalanced actions by supposed peacekeeping forces must be replaced with competent
and neutral ones . . . rather than in trying to maintain the status quo, while in fact being
biased and preserving the injustices that have happened there.” 12
12. Mr.President, Members of the Court, we have heard a lot of self-congratulation from
Russia for its role as a facilitator and peacekeeper. But this role did not give Russia license to
divest itself of its international legal obligations, including under the CERD Convention. Not even
Russia makes that argument. So the question is this: Does a dispute exist under the CERD
Convention by virtue of Georgia’s frequent compla ints that the Russian p eacekeepers joined local
Ossetian and Abkhaz militias in attacking Georgian communities, and took advantage of their
services as border guards in South Ossetia and Abkhazia, to prevent ethnic Georgians ⎯ but not
members of other ethnic groups ⎯ from exercising their right of return? The answer can only be
Yes. Article5 of the Convention makes clear that the right of return is guaranteed. Counsel for
8
Office of the President of Georgia, Speech,“Remarks H.E. The President of Georgia Mikheil Saakashvili
European Parliament, Strasbourg”, 14 Nov. 2006.
9
CR 2010/9, p. 65, para. 9 (Sands).
10CR2010/10, p.20, para. 28 (Wordswort h) (quoting UN General Assembly, 7th Plenary Meeting, Address by
Mr. Mikheil Saakashvili, President of Georgia, UN doc. A/62/PV.7, 26 Sep. 2007, pp. 18-20; WSG, Vol. III, Ann. 88).
11CR 2010/10, p. 20, para. 28 (Wordsworth).
12UN General Assembly, 7th Plenary Meeting, Address by Mr.Mi kheil Saakashvili, President of Georgia ,
UN doc. A/62/PV.7, 26 Sep. 2007, pp. 18-20; WSG, Vol. III, Ann. 88. - 13 -
Russia reiterated and reaffirmed “as fundamentally im portant the right of return for all refugees to
Abkhazia”. Presumably, this principle applies to South Ossetia as well 13. Plainly, Georgia has
raised a dispute in regard to a right enshrined in Article 5 of the Convention.
13. Mr.Wordsworth attempts to disqualify th e remainder of Georgia’s evidence with broad
brushstrokes. Eight of Georgia’s documents do not count because they are parliamentary
14
resolutions . Another new rule: resolutions of parliame nt are not evidence of the existence of an
inter-State dispute. But even if we accept this prin ciple, for which no authority is cited, it cannot
apply to parliamentary resolutions that are adopt ed by the foreign ministry and submitted to the
United Nations as statements of the government’s position, as in Annexes 76 and 82 to Georgia’s
Written Statement, which accuse Russia of discrimination.
14. Here is another new rule. Public statem ents by the Georgian Foreign Ministry do not
count 15. This is indeed a new rule, and it conflicts with the old one established by the Court, that
the Court will determine the existence of a di spute based on “diploma tic exchanges, public
statements and other pertinent evidence” 16. At a stroke, Russia disqualifies several of Georgia’s
key documents, including the Foreign Ministry’s statement of 17July 2008, which is a direct
response to a statement from Russia’s Foreign Minister opposing the return of Georgian internally
displaced persons (IDPs) to Abkhazia: “Mr. Lavrov’ s statement is completely at variance with the
mandate of the CIS collective peacekeeping forces, which binds them... to create appropriate
conditions for the unconditional and dignified return of refugees and internally displaced
17
persons.”
15. Mr.Wordsworth has not challenged our assertion that this and the Foreign Ministry’s
other public statements make claims of ethnic di scrimination against Russia, in the case of this
document, over denial of the right of return. He disqualifies them only because they were not
issued directly to Russia.
13
CR 2010/8 , p. 35, para. 22.
14
CR 2010/10, p. 15, para. 16 (a) (Wordsworth).
15Ibid., para. 16 (b) (Wordsworth).
16Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1, p.449,
para. 31.
17Ministry of Foreign Affairs of Georgi a, Comment of the Press and Information Department of the Ministry of
Foreign Affairs of Georgia, 17 Jul. 2008; WSG, Vol. IV, Ann. 182. - 14 -
16. Also disqualified are all statements by Georgia prior to Georgia’s accession to CERD on
2June 1999. Mr.Wordsworth gave red cards to five different documents on this ground 18. But
truly documents from this period confirm the existence of a long-standing dispute about ethnic
discrimination ⎯ a dispute which remained unresolved as of the filing of the Application on
12 August 2008. Whatever, they do not count.
17. This is like a surreal football match. Georgia scores goal after goal, but each time the
Russian team ⎯ not the referee, but the Russian team ⎯ calls an offside, or a foul, or invalidates
the goal because the ball is said not to cross the lin e. Whenever Georgia scores, it simply does not
count.
18. Let us look at some of the clearest ex amples: PresidentSaakashvili’s statement of
August2008 that Russian troops and Russian tanks “expelled the whole ethnically Georgian
population... in South Ossetia” 19; and his statement of 11August2008 that “I directly accuse
20
Russia of ethnic cleansing there. And it’s happening now.”
19. On Wednesday, in the second round, Mr.Wordsworth admitted that: “Of course the
President said what he said . . . ” 21. OK. Maybe we are finally making some progress here. Could
it be that these goals will be allowed?
20. No way! Why not? Because, he says “it is almost as if in directly accusing Russia of
ethnic cleansing on 11 August, he had in mind that Georgia would be lodging a CERD claim within
less than 24 hours” 22. This is another new rule, and a highly pernicious one. Russia asks the Court
to look into the mind, if not the soul, of the President of Georgia and adjudge that he made these
statements, on 9 and 11August, because he was cynically plotting to create grounds for a phony
lawsuit.
21. Could the Court possibly adjudge that Georgia and its President fabricated charges of
ethnic cleansing as a pretext to bring this lawsuit? Not according to every single respected,
18
CR 2010/10, p. 16, para. 16 (d) (Wordsworth).
19
Office of the President of Georgia, Press Briefing, resident of Georgia Mikheil Saakashvili met foreign
journalists”, 9 Aug. 2008; WSG, Vol. IV, Ann. 184.
20
“President Bush condemns Russian invasion of Georgia”, CNN, 11 Aug. 2008; WSG, Vol. IV, Ann. 205.
21CR 2010/10, p. 17, para. 21(Wordsworth).
22Ibid. - 15 -
independent, international organization. The Report of the European Union’s Independent
International Fact-Finding Mission, upon which Russia placed such emphasis this week, concluded
that “ethnic cleansing was . . . practised against ethnic Georgians in South Ossetia both during and
23
after the August 2008 conflict” . The Rapporteur of the Council of Europe’s Parliamentary
Assembly concluded that the “systematic destru ction of every” ethnic Georgian house in areas
under Russian occupation demonstrated “an intention to ensure that no Georgians have . . . property
to return to” and constituted “ethnic cleansing” 24.
22. Mr.Wordsworth suggests another reason why the President of Georgia’s statements
should be disallowed. They were “made at a time when Georgia was in fact engaged in
negotiations with Russia . . .” 25. Is that so? Well, here is a Russian own goal, one that cannot be
overruled due to a Georgian offside. Until the second round, Russia consistently argued that
Georgia had failed to attempt ne gotiations with Russia. But in his second round presentation,
Professor Zimmermann read this excerpt from th e Russian Permanent Representative’s statement
to the Security Council on 10 August 2008:
“this, of course, does not mean we are evading any contacts with our Georgian
colleagues. Such contacts are continuing at a wide variety of levels. For example, the
most recent was just a few hours ago: a lengthy telephone conversation between our
Minister of Foreign Affairs and the Minister of Foreign Affairs of Georgia . . .” 26
23. This statement is in the present tense. Ne gotiations are in process at a variety of levels,
including Foreign Ministers. This is 10August2008. Russian troops have been marauding
Georgian villages in South Ossetia for two days. The previous day the President of Georgia had
publicly denounced this. The next day, the Georgi an Foreign Ministry pub licly raised the alarm
that: “Russian servicemen” were “carry[ing] out mass arrests” of Georgians in South Ossetia 27.
Yet both Professor Zimmerman and Mr. Wordsworth ask the Court to believe that none of this was
23
Independent International Fact-Finding Mission on the Conflict in Geor gia, Report Vol.I, Sep.2009,
(hereinafter “IIFFMCG Report, Vol. I”), para. 27; WSG, Vol. III, Ann. 120.
24Council of Europe, Parliamentary Assembly, Comm ittee on Migration, Refugees and Population, Report, The
humanitarian consequences of the war between Georgia and Russia: follow-up given to resolution 1648 (2009) ,
doc. 11859, 9 Apr. 2009, para. 29; MG, Vol. II, Ann. 62.
25CR 2010/10, p. 17, para. 21 (Wordsworth).
26CR 2010/10, pp. 41-42, para. 21 (Zimmermann).
27CR2010/9, p.18, para.14 (Reichler) (quoting Ministry of Foreign Affairs of Georgia, Statement of the
Ministry of Foreign Affairs of Georgia, 11 Aug. 2008; WSG, Vol. IV, Ann. 185). - 16 -
discussed in the negotiations that were taking place at the very same time. What were they talking
about in those negotiations, the football scores? The ongoing massive uprooting, killing and arrest
of ethnic Georgians, the burning and looting of hom es and villages, was the proverbial elephant in
the room. In fact it filled the room. Was it not only the Russians, but also the Georgian diplomats,
who chose to ignore it completely? Simply not credible. Judges are not required to denude
themselves of their common sense and practical experience when they put on their judicial robes.
24. Further evidence of negotiations consis ts of exchanges of correspondence between
Presidents Saakashvili and Medvedev in June and July of 2008, in which PresidentSaakashvili
called for the withdrawal of Russian peacekeepers from the remaining Georgian-populated areas of
28
Abkhazia, so that Georgian IDPs could return to their homes there . President Medvedev’s
rejection of that proposal, on the ground that it was “untimely” 29, made agreement unlikely, but
efforts continued, until Russian troops imposed a solution in August, chasing out virtually every
last Georgian. Plainly, any requirement for negotiations that could conceivably be found in
Article 22 was satisfied.
25. Russia’s counsel called attention to two statements, one by PresidentSaakashvili and
another by Georgia’s Permanent Representative to the United Nations, to the effect that “these
30 31
disputes are no longer about ethnic grievances” , or are “not a fundamentally ethnic conflict” .
These statements, in 2007 and 2 006, respectively, were made a year and two years before the
ethnic cleansing campaign launched by Russia in August 2008. What they really are is Georgia’s
response, at the time, to Russia’s repeated refusal to permit ethnic Georgians to return to South
Ossetia or Abkhazia on the ground that, according to Russia, ethnic tensions were so high it would
be unsafe for any Georgians to return. It was in this context that President Saakashvili asserted that
this was pretext, that the majority of Georgi ans and Ossetians, and Georgians and Abkhaz, could
28Letter of President Mikheil Saakashvili of Georgia to President Dmitry Medvedev of the Russian Federation,
24 Jun. 2008; MG, Vol. V, Ann. 308.
29Letter of President Dmitry Medvedev of the Russian Federation to President Mikheil Saakashvili of Georgia,
1 Jul. 2008; MG, Vol. V, Ann. 311.
30CR2010/10, p.21, para.29 (Wordsworth) (quoting UN Ge neral Assembly, 7th Plenary Meeting, Address by
Mr. Mikheil Saakashvili, President of Georgia, UN doc. A/62/PV.7, 26 Sep. 2007, p. 19; WSG, Vol. III, Ann. 88.).
31CR2010/10, p.21, para.32 (Wordsworth) (quoting Ministry of Foreign Affairs of Georgia, Statement of
Mr. Irakli Alasania, Ambassador Extraordinary and Plenipotentionary, Permanent Representative of Georgia to the UN,
3 Oct 2006; WSG, Vol. IV, Ann. 171.). - 17 -
live peacefully with one another, as they had in the past, but for “the manipulation of greed by a
tiny majority of activists, militants, militias and foreign backers , at the expense of the local
population” 32. In the same speech, to the General Asse mbly in September2007, he made it very
clear who he thought those “foreign backers” were: “The only obstacle to the integration of South
Ossetia is a separatist regime that basically consists of elements from security services from
33
neighbouring Russia that have no historical ethnic or cultural links to the territory whatsoever.”
26. Mr.Wordsworth showed the Court three slides that leave no doubt that this is
fundamentally a dispute about ethnic discrimination. First, he showed the Court what Georgia’s
representative told the CERD Committee in March 2001: that “serious ethnically motivated human
rights violations were still occurring ”34. Then he displayed an excerpt from the CERD
Committee’s report in April 2001: that “the situations in South Ossetia and Abkhazia have resulted
in discrimination against people of different ethni c origins, including a large number of internally
displaced persons and refugees” 35. Then he showed a slide with Georgia’s comments to the CERD
Committee in August 2005, that it was “gravely conc erned about violations of the human rights of
Georgian citizens in the Gali District of Abkhazia . . . The situation of IDPs who had been unable
to return to Abkhazia was another cause for concern”. 36
27. Given these statements to and by th e CERD Committee, it can no longer be argued
plausibly that there was not a long-standing a nd fundamental dispute about ethnic discrimination
and denial of the right of return ⎯ matters falling under the CERD Convention. The only
remaining issue is whether Georgia ever accused Russia of responsibility for these discriminatory
acts and practices.
32
UN General Assembly, 7th Plenary Meeting, Address by Mr.Mikheil Saakashvili, President of Georgia,
UN doc. A/62/PV.7, 26 Sep. 2007, p. 19; emphasis added; WSG, Vol. III, Ann. 88.
33
UN General Assembly, 7th Plenary Meeting, Address by Mr.Mikheil Saakashvili, President of Georgia,
UN doc. A/62/PV.7, 26 Sep. 2007, p. 20; WSG, Vol. III, Ann. 88.
34
CR 2010/10, p. 15, para 16 (b) (Wordsworth) ( quoting UN Committee on the Elimination of Racial
Discrimination, Summary Record of the 1454th Meeting , UNdoc.CERD/C/SR.1454, 16 Mar.2001, para. 21); WSG,
Vol. III, Ann. 67 (emphasis added).
35
CR2010/10, p.15, para.16 (c) (Wordsworth) ( quoting UN Committee on the Elimination of Racial
Discrimination, Concluding observations of the Committee on the Elim ination of Racial Discrimination: Georgia,
UN doc. CERD/C/304/Add. 120, 27 Apr. 2001, para. 4); WSG, Vol. III, Ann. 66.
36
CR2010/10, p.16, para.16( d) (Wordsworth) ( quoting UN Committee on the Elimination of Racial
Discrimination, Summary Record of the 1706th Meeting , UN doc. CERD/C/SR.1706, 10 Aug. 2005, para. 24; emphasis
added; WSG, Vol. III, Ann. 72. - 18 -
28. Russia suggests that “the obvious inference to draw from Georgia’s failure to suggest to
the CERD Committee that it had a dispute with Russia was that it did not, in fact, have a CERD
37
claim against Russia” . With respect, the inference is neither obvious nor justified. Georgia’s
reports to the CERD Committee, like those of all States Parties, were submitted under Article9.
That Article calls upon States to report on their own measures to give effect to the Convention. An
Article 9 report is not where States Parties are expe cted to comment on or criticize the practices of
other States Parties. That is provided for in Artic le 11. Professor Crawford will have more to say
about this later.
29. The bottom line is, it was not necessary fo r Georgia to accuse Russia directly of ethnic
discrimination at the CERD Committee, and no inferences can be drawn from the fact that it did
not. But more to the point, the “obvious infe rence”, for which Russia’s counsel so gamely
contends ⎯ that Georgia never claimed that Russia was responsible for acts of discrimination
prohibited by the CERD Convention ⎯ is completely eviscerated by each and every one of
Georgia’s multiplicity of statements to the Secur ity Council, the General Assembly, the European
Parliament, the OSCE, the international news media, and to Russia itself, in which it directly
accused Russia of ethnic cleansing, support for others engaged in ethnic cleansing, failure to
prevent ethnic discrimination in areas under its effective control, and denial of the right of return.
30. In fact, at the very same time that Georgia was complaining in its CERD reports about
ethnic discrimination in Abkhazia and South Ossetia, it was publicly proclaiming in numerous fora
that the real authority in both Abkhazia and South Ossetia, the party responsible for the ethnic
discrimination in the two territories, was Russia itself, and, in particular, that the de facto
administrations in South Ossetia and Abkhazia were run by Russian government and security
personnel 38. Citations for this will appear in the compte rendu.
37
CR 2010/10, p. 13, para. 13 (Wordsworth).
38See, e.g., UN Security Council, Letter dated 27 October 2005 from the Perm anent Representative of Georgia to
the United Nations addressed to the President of theSecurity Council, UN doc. S/2005/678, 27 Oct. 2005); WSG,
Vol.III, Ann.75. (“Positions in the se paratist Governments are filled with people sent directly from public jobs in the
Russian Federation, from as far away as Siberia.”). See also UN General Assembly, Security Council, Letter dated
9November 2005 from the Permanent Representative of Georgia to the United Na tions addressed to the
Secretary-General, Annex, UNdoc.A/60/552-S/2005/718, 10 N ov. 2005; WSG, Vol.III, Ann.76 (“citizens of Russia
have been appointed to the high-level positions (i.e., ime-Minister, Ministers of Defense and Law Enforcement,
commanders of military units, etc.) in Tskhinvali and Sukhumi ⎯ individuals who simultaneous ly continue to work in
law enforcement and the special services of the Russian Federation”). - 19 -
31. In the end, what Russia is left with ⎯ all they are left with ⎯ is their essentially political
argument that the “real” dispute in this case is about armed conflict, annexation of territory, and the
legal status of South Ossetia and Abkhazia. They maintain this position despite all the evidence,
which they have failed to refute, except by inventing new rules of international law and using them
to claim repeatedly that all of Georgia’s evidence “doesn’t count ”. Georgia’s claim of ethnic
39
discrimination, for them, is nothing but “a legal concoction” . Georgia has acted in bad faith in
bringing this case. It comes to the Court with unclean hands. It should be sent home.
32. Where have we heard this argument before? In Nicaragua v. United States, the United
States sought to have Nicaragua’s claims declared inadmissible on very similar grounds:
“Nicaragua urges... that this Court adjudicate a claim centrally rooted in an
armed conflict . . . Moreover, and even more remarkably, Nicaragua urges this action
in a setting of hostilities triggered in part by its own attacks against its neighbours . . .
when Nicaragua could use the Court to focus attention away from its own human
rights abuses... This upside-down, and essentially political, Nicaraguan request is
inadmissible . . .” 40
33. This argument was rejected by the Court by a unanimous vote of 16-0, which included
the vote of Judge Schwebel 41.
34. In specific regard to the issue of juri sdiction, as distinguished from admissibility, the
Court had this to say in the Legality of Use of Force case: “In the view of the Court, it cannot
decline to entertain a case simply because of a sugge stion as to the motives of one of the parties or
42
because its judgment may have implications in another case.”
35. Mr.President, Members of the Court, because of Russia’s focus on the minutiae of
individual documents and statements, I have been required to respond at the level of details rather
than address the bigger picture. It is on that bigger picture that I would like to spend the last few
minutes of my speech.
39CR 2010/10, p. 18, para. 22 (Wordsworth).
40Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ),
Jurisdiction and Admissibility, Oral Argument, Vol. III, p. 251 (Moore).
41Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) ,
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 442, para. 113.
42Legality of Use of Force (Serbia and Montenegro v. United Kingdom), Preliminary Objections, Judgment,
I.C.J. Reports 2004 (III), p. 1323, para. 38. - 20 -
36. Mr.Wordsworth described the facts of the case in the following way: “a very serious
43
refugee issue, yes; a dispute between Georgia and Russia over racial discrimination, no . . .” It is
a telling and unhappy remark for what it says about Russia’s approach to the facts on the ground: it
seems that Russia is simply unable or unwilling to confront the reality of what caused hundreds of
thousands of ethnic Georgians to leave their homes , and villages and towns, in South Ossetia and
Abkhazia between 1992 and 2008, and so become “refugees”, as Mr. Wordsworth put it. It was not
a natural disaster that caused their departure fro m their homes. They did not leave voluntarily, in
search of pastures anew and opportunities fresh. They were not prevented from returning from a
seasonal holiday by reason of some unexpected volcanic action.
37. No, Mr. President, they are “refugees” in their own country because they were forced out
pursuant to a policy of ethnic discrimination. The policy was adopted by Russia in 1991 and has
been applied systematically ever since, with th e aim of transforming the population in those two
territories. That policy is no doubt part of a br oader geopolitical effort to create a new zone of
influence, extending over Abkhazia and South Ossetia, now as ethnically homogenous entities free
of Georgians, but the Court need not be concerne d with motive or geopolitics. At this stage, the
focus is on the application of Russia’s policy in a manner that deliberately discriminated against
ethnic Georgians in an effort to drive them out of Abkhazia and South Ossetia, and Georgia’s
persistent objections to Russia’s actions in this regard. That constitutes a dispute.
38. Mr. President, there is a serious “refugee” issue, and it is a direct result of Russia’s policy
of discrimination that is incompatible with the requirements of the Convention. Refugees need not
be refugees if they can return. There are hundred s of thousands of ethnic Georgian “refugees” in
Georgia because Russia will not let them return. In his closing remarks, the Agent of Russia
addressed the issue. He made a number of points. He said that “non-return as such cannot
automatically be equated to racial discrimination” 44. No doubt as a general proposition that may be
right. But Russia’s Agent accepts th at, in certain circumstances, preventing the right of return will
be an act of racial discrimination that violates the Convention. This is a significant concession. It
is all the more important in relation to Ambassador Gevorgian’s claim that “Russia has consistently
43
CR 2010/10, p. 20, para. 29 (Wordsworth).
4CR 2010/10, p. 51, para. 9 (Gevorgian). - 21 -
45
applied the same standard to the issue of return of displaced persons regardless of their ethnicity” .
The evidence does not support that claim. The reality is that South Ossetia and Abkhazia have had
an open-door policy of return for Ossetians a nd Abkhaz, and a closed-door policy for ethnic
46
Georgians . That is called discrimination. It falls within the Convention. Georgia has persistently
and clearly objected to the policy since the early 1990s 47. Who has implemented and enforced the
policy? Russia. On the so-called “border” with Georgia, who has administered the entry process
48
for visitors? Russia. And who has policed the border: the Russian army .
39. The issue of Russia’s responsibility for these actions under the CERD Convention is a
matter for the merits. But as to the question, whether there was a dispute between Russia and
Georgia on matters relating to the Convention as of 12 August 2008, the answer is blindingly clear:
obviously there was such a dispute. For Russia to claim that there was no dispute with Georgia as
to ethnic discrimination against Georgians in South Ossetia and Abkhazia, and as to the
discriminatory denial of the right of return ⎯ in the period between 1999 and 2008 ⎯ is to turn its
back to the realities of the situation. We trust that is not something the Court will wish to do.
40. Mr.President, Members of the Court, I thank you again for your kind courtesy and
patient attention, and I ask you to give the floor to Professor Crawford.
The PRESIDENT: I thank Mr.PaulReichler for his presentation. May I now call
Professor James Crawford to take the floor.
45CR 2010/10, p. 51, para. 9 (Gevorgian).
46
MG, paras. 5.1-5.25, 6.47-6.87;7.36-7.51; WSG, paras. 6.4-6.18.
47
See, e.g., UN Security Council, Letter dated 8Sep.1992 from the Char gé d’affaires a.i. of the Permanent
Mission of the Russian Federation to the United Nations Addre ssed to the President of the Security Council, Annex,
UN doc. S/24523, 8 Sep. 1992. WSG, Vol.III, Ann.45; OSCE, Statement by the Delegation of Georgia on
Developments in Georgia, PC.DEL/306/08, 17 Apr. 2008. WSG, Vol. III, Ann. 112. For additional evidence of Georgia
and Russia’s negotiations over the right of return, see WSG, paras. 3.78-3.110.
48MG, paras. 5.1-5.25, 6.47-6.87;7.36-7.51; WSG, paras. 6.4-6.18. - 22 -
Mr. CRAWFORD:
PRELIMINARY OBJECTIONS 2-4
I. Introduction
1. Mr. President, Members of the Court, in this thankfully brief presentation, I will develop a
number of issues associated with the 2nd, 3rd an d 4th preliminary objections, and this in an
impressionistic, if not a pointillistic, form.
II. The special meaning theory
2. My first point concerns Mr.Wordsworth’s special meaning theory, by which a “matter”
only becomes a “dispute” when s ubject to the alchemy of the ad hoc Conciliation Commission. I
refuted that on Tuesday by showing that Artic le 13 uses the terms “matter”, “issue” and “dispute”
indistinctly, without any trace of the “special m eaning” which Mr.Wordsworth discerns in those
articles4. His response was that, at the time the comp laint is referred to the Commission, it is still
a “matter” and that it only becomes a “dispute” at a later point (CR 2010/10, p. 12, para. 7). Let’s
observe this little exercise in transubstantiation clo se up. Here is Article 12, paragraph 1, with the
relevant words highlighted. [Show Art.12(1)] You can see, in the second sentence, at the time
they are consenting to the members of the Conciliation Commission, and therefore before it has
been established, the parties are “parties to the dispute” so the change has happened already.
Abracadabra! But wait; the magi c has not worked, for at the e nd of the sentence we have the
words “amicable solution of the matter”. So the “dispute” has slipped back to its former condition.
But wait: help is on the way, because in the ne xt sentence the States are confirmed as “parties to
the dispute”, a phrase twice occurring in paragraph1 (b), and once each in paragraphs2, 5, 6,
and 7. Surely now there can be no going back, no fu rther entropy. But alas, even at the end of the
Article 12 process, what do we find? I refer to Article 13, paragraph 1, which describes our affair
simultaneously as a “matter”, an “issue” and a “dispute”. This is not consistency, it is oscillation.
4CR 2010/9, pp. 35-36, paras 6-8. - 23 -
3. Mr. Wordsworth praised the CERD Committee, but complained that I did not refer to the
rules of procedure drawn up by the Committee (CR 2010/10, p.12 para.7). The reason I did not
do so was that the issue we are discussing concerns the interpretation of the 1965 Convention, not
the later-adopted Rules. But the fundamental distinction drawn by Mr.Wordsworth between
“matter” and “dispute”, if it exists, must surely have been appreciated by the Committee, and they
would surely have reflected it in the Rules.
4. Thus Mr.Wordsworth referred to a “f ive-stage crystallization process” for turning
“matters” into “disputes”; he attributes this to “an interpretation of the Committee in the
formulation of its rules of Procedure” (CR2010/10 , p.12, para.7). The Committee first adopted
the rules in 1970. In Mr. Wordsworth’s words: “Rule 72 makes it clear that the dispute only arises
under Article11, paragraph2, i.e., only once the five-stage process has been completed and the
matter has come back to the Committee for the second time, as is foreseen in Article11,
paragraph 2” (CR 2010/8, p. 30, para. 9).
[Graphic showing Art. 11 (2) with “matter” highlighted; Rule 72 with “dispute” highlighted]
5. As you can see on the screen, Article 11, pa ragraph 2, which refers only to a “matter” ⎯
and does so twice. But there is Rule 72, that refe rs to “a dispute that has arisen under Article 11,
paragraph 2” ⎯ and does so twice.
6. Unfortunately, while the Committee may have thought it as a “dispute”, Article11,
paragraph 2, is clear in referring to it is a “matter”. Indeed, Article 11 is internally consistent, but
the Committee seems not to have appreciated this . Its own Rules refer to a “dispute” at the
Article 11 stage.
7. There are other examples of inconsistenci es in terminology as between the Rules and the
CERD, but the point has been made. Not even the CERD Committee adheres to Mr. Wordsworth’s
dichotomy.
8. Finally, Mr. Wordsworth dismissed my re ference to the Indus Waters Treaty as “esoteric”
(CR2010/10, p.12, para.10). I must say I find it slightly odd to describe a major river treaty
allocating water rights to many millions of pe ople in the sub-continent as “esoteric”. What is
esoteric, however, is the complexity of the dis pute settlement system, under that treaty, with its
explicit provision as to precisely when a mere “d ifference” becomes a “dispute” and therefore - 24 -
justiciable. My point was that such a refined and, well, esoteric system could not be implied, and
that the linguistic basis on which Mr. Wordsworth sought to do the same thing in Part II of CERD
was plainly inadequate.
9. Then Mr.Wordsworth takes refuge in a Latin maxim, lex specialis, as if in a talisman:
CERD is a lex specialis (CR 2010/10, p. 13, para. 12), and is t hus inoculated against the infection
of general international law and the Mavrommatis case in particular. According to
Mr. Wordsworth, Mavrommatis ⎯ with its expansive definition of “dispute” and its flexible
requirement of “negotiation” ⎯ only applies “in the context of optional declarations under
Article 36, paragraph 2, or compromissory clauses in bilateral or multilateral treaties” which do not
possess the special character of CERD (CR2010/10, p.13, para.12). There is some circularity
here ⎯ the lex specialis maxim is invoked on the ground that the treaty is special; the treaty is
special because it is lex specialis. But all treaties have special features; on Russia’s view they are
so many leges speciales. On this basis there is no general international law of treaties at all.
III. The story of State A and State B
10. I turn to the story of State A and State B ⎯ you may remember it. Mr.Wordsworth
rather misunderstood my parable of the two States. He said with what he thought to be “a more
accurate sense of reality” would be that “State A has gone down a different and impermissible
route. It has resorted to military force to resolve its problems.” (CR 2010/10, pp. 10-11, para. 3.)
11. But my parable was not intended to mirror the disputed facts of the present case; and in
my parable the ethnic cleansing occurred in State B. The point of the story was to show the evident
meaning of Article 22 and its rela tion to Articles 11-13. That meaning does not change depending
on the factual situation. The Court either has or has not jurisdiction to hear a case under CERD,
depending on the interpretation of Article22, an d irrespective of any question concerning the use
of military force. I would note, furthermor e, that from the Respondent’s side there is ⎯ and no
doubt advisedly ⎯ no preliminary objection relying on the so-called “clean hands” doctrine. The
rest is for the merits. - 25 -
IV. The system of Part II of CERD
12. The Respondent accused us of neglecting PartII of CERD and leaving Article22 in
splendid, you might say clinical, isolation. But Part II has its own economy, quite distinct from the
final clauses. This can be seen, for example, from Article 9. Article 9 says that States Parties must
submit for consideration by the Committee a “report on the legislative, judicial, administrative or
other measures which they have adopted and which give effect to the provisions of this
Convention”.
13. Article11, paragraph1, which is the next substantive article (Article10 concerns the
Committee’s rules, officers, secretariat and mee tings) repeats that language: “If a State Party
considers that another State Party is not giving e ffect to the provisions of this Convention, it may
bring the matter to the attention of the Committee.”
14. It seems clear that the Article 11 and 12 procedures are designed to work in tandem with
Article9. Article9 requires States to report on how they are giving effect to the Convention,
especially through legislation. If another State believes that the reporting State’s measures to “give
effect” are inadequate, Article 11 is the appropriate mechanism for bringing this observation to the
Committee’s attention. This makes perfect sen se since it is the Committee that reviews the
Article9 submissions. It contrasts sharply w ith Article22, which is phrased broadly: “any
dispute . . . with respect to the interpretation or application of this Convention . . .”.
15. All of this indicates that Articles11 and 12 were not intended to establish mandatory
procedures that must precede the seisin of this Court. Instead, they were intended to assist the
Committee in fulfilling the function assigned to it by Article9, paragraph2, which is to “make
suggestions and recommendations based on the ex amination of the reports and information
received from the States Parties”.
16. Russia seeks to reformulate the case by ca lling on the Court to preserve the integrity of
some imaginary system of compulsory conciliation before, or under, the CERD 50. This is
misconceived. CERD is not “the only human rights treaty with a mandatory conciliation
procedure”, it is the first human rights treaty establishing a treaty body, which served as a model
for those that followed it and neither it, nor th e other seven human rights committees have been
50
CR 2010/10, p. 38, para. 38 (Pellet). - 26 -
given the authority to conciliate against the will of the States parties. In fact, this would be
counterproductive, since consent, mutual adju stment and compromise lie at the heart of
conciliation.
V. Article 22 of CERD
17. I turn against this background to the core interpretative issue of Article 22.
18. ProfessorPellet said we ignored it but in fact we do ⎯ as you did in paragraph114 of
your Order on provisional measures ⎯ we do attribute meaning to the phrase “which is not settled
by negotiation or by the procedures expressly provid ed for in this Convention”. In the words of
your Order, “some attempt should have been made by the claimant party to initiate, with the
Respondent Party, discussions on issues that would fall under CERD” 51. But you clearly
considered that the phrase did not require exhaustion of CERD processes.
19. Professor Pellet drew the opposite conclusion from the word “or” ⎯ this was an “or” he
mined repeatedly. Armed with the Cambridge Advanced Learners Dictionary, but driving still
slightly on the wrong side of the road, he produced the postulate that “or” means “and” after a
negative clause (CR2010/10, p.25, para.7). I regret that despite the Cambridge Advanced
Learners Dictionary, the English language is barely amenable to rules, and indeed many languages
have difficulties with “and” and “or”. It is e nough to draw the Court’s attention to Article11,
paragraph 2, of the Convention, which lists the procedural preconditions for referring a dispute to
the Committee for a second time. It states: “If the matter is not adjusted to the satisfaction of both
parties, [not adjusted, a negative phr ase] either by bilateral negotiations or by any other procedure
open to them . . .” The “or” there, there the word is in the negative but the “or” still means what it
says.
20. There is in the end nothing for it but to follow Vienna Convention rules on interpretation,
having regard to the object and purpose of the Convention. And the CERD was intended above all
to provide an effective remedy at the international level for serious cases of racial, including ethnic,
discrimination. It was intended to be effectiv e. The Respondent’s interpretation makes of the
CERD machinery a snare and an obstacle, as my parable of StatesA and B showed.
5Order of 15 October 2008, I.C.J. Reports 2008, p. 388, para. 114. - 27 -
Professor Pellet insisted that in certain contexts “or” can mean “and”; but I would remind him that
in all contexts “or” can mean “or”. The principle of effectiveness is a crucial factor in rejecting the
cumulative interpretation.
21. Professor Pellet made a faint attempt to suggest that an ad hoc Conciliation Commission
was at least as appropriate a forum for discrimination complaints as this Court; he noted that cases
before this Court can be drawn out, whic h I suppose is true. But the Court has ⎯ what neither the
CERD Committee nor the ad hoc Conciliation Commission have ⎯ a power to indicate binding
interim measures of protection. Article16 of CE RD applies the normal international principle of
the free choice of means to the CERD in so far as concerns other remedies. ProfessorPellet
conceded my point that under Article16, parti es to the Optional Clause would not be required to
resort to procedures under Part II of CERD (CR 2010/10, pp. 33-34, para. 28). He regarded that as
one of the hazards or advantages of the Optional Clause, depending on whether you are State A or
State B. But if the integrity of Part II procedures was a strong value, it could have been imposed on
the parties as a condition of belonging to the régime. The presence of Article 16 helps to show that
the CERD is not such a régime, and that the principle of free choice of means should prevail.
22. Professor Pellet made no attempt to deal with the substance of my points concerning the
52
Rwanda case; he simply stigmatized them as les explications embarrassées . But the attempt to
invoke the WHO Constitution in that case was a mere post hoc construction, and a speculative one
at that. I would recall that the Rwanda case was cited in the provisional measures phase of the
present case, and did not prevent the Court from concluding that the relevant phrase in Article 22
“does not, in its plain meaning, suggest that formal negotiations in the framework of the
Convention or recourse to the procedure referred to in Article 22 thereof constitute preconditions to
53
be fulfilled before the seisin of the Court” .
23. As to the travaux, there is no reason to repeat what was said on Tuesday ⎯ it is for the
Court to decide between the diametrically opposed arguments of the Parties. On this we cannot
52
CR 2010/10, pp. 31-32, para. 24, referring to CR 2010/9, p. 37, para. 15.
53
Order of 15 October 2008, I.C.J. Reports 2008, p. 388, para. 114. - 28 -
both be right. I would simply commend to you the summary which is an appendix to our Written
Observations 5; the complete travaux Annexes 1-40 in Volume 2 annexed to the Observations.
24. For all these reasons there is no basis fo r this Court to revise the interpretation of
Article22 provisionally given in its Order of 2008. ProfessorPellet claimed that this should be
done because of the issue of military force (CR 2010/ 10, p. 38, para. 38). But as I have observed,
the case having been pleaded as it has been, that issue belongs to the merits.
VI. Preliminary objections 3 and 4
25. I turn to deal very briefly with the two remaining ⎯ if “remaining” is the right word ⎯
preliminary objections.
26. In the first round Russia had nothing to say about its third and fourth preliminary
objections, despite the fact that we responded very fully in our Written Statement. In response to
what we said on Tuesday, Russia has painted a confus ing picture as to its intentions in respect of
the third preliminary objection, on jurisdiction ratione loci. Professor Zimmermann told the Court
55
that Russia had decided to “no longer plead it as a preliminary objection” . Then, the Agent,
Mr.Gevorgian, said that the issues were so closel y intertwined with the facts that they should be
56
considered at the merits stage , but he never actually asked you to join them.
27. It seems you have three options: (1)decide that the preliminary objection has been
dropped and say nothing further about it; (2)rule on the objection as we have invited you to do,
namely, by rejecting it, on the grounds that Russia has provided no authority or argument to
contradict our detailed arguments; or ⎯ maybe it should be “and” ⎯ (3) join the objection to the
merits.
28. We do not see any basis for the third course of action in the circumstances in which
Russia has provided no arguments to justify such a decision, and no response to our submission
that the claim is unconnected to the merits. In circumstances in which we have fully pleaded our
case, we say you should reject the objection at this stage, and not merely treat it as having been
54WSG, pp. 352-367.
55
CR 2010/10, p. 46, para. 47 (Zimmermann).
56
Ibid., p. 53, para. 22 (Gevorgian). - 29 -
dropped. One party has provided “full argument” , as ProfessorZimmermann in his helpful way
put it57, and the fact that Russia has chosen not to respond should not delay your decision. The
third preliminary objection is without merit and we invite the Court to so rule.
29. As regards the fourth preliminary objection ⎯ the ratione temporis objection ⎯ it now
seems that this is not really an objection to jurisdiction at all, but more in the nature of a request for
a declaration as to the non-retroactive application of the Convention. It is not the function of the
preliminary objections phase to make such a decl aration. Nor is it the place to expound the
58
meaning and effect of the concept of the c ontinuing violation, as Russia appears to suggest .
Georgia therefore invites the Court also to reject this preliminary non-objection.
VII. Conclusion: the role of the Court
30. To conclude, as to the role of the Court, when he is not being a legal formalist in these
proceedings, ProfessorPellet adopts another unwonted role, that of the droits-de-l’hommiste. He
vehemently accuses me in effect of trashing the CERD Committee 59. Of course, nothing I said was
60
intended as a criticism of the good work done by that and the other human rights treaty bodies .
The question, however, is a legal one, whether their “jurisdiction” ⎯ if that is the right word ⎯
excludes that of the Court, or at least postpones acce ss to the Court for years on end. In a situation
where it is obvious that no amount of further negotiations, however structured, will resolve
anything, it is futile and may be very damaging to the victims to insist that the Article 12 process
run its cumbersome course.
31. Mr.Wordsworth used language redolent of the Royal Courts of Justice in describing
CERD: he referred, for example, to a “matter” as “the formal name for the originating document
on which the Commission is reporting”, and added, helpfully: “The Commission reports on a
matter, just as a court determines a claim.” 61 I say again that treaty bodies such as the CERD
57\CR 2010/10, p. 47, para. 49 (Zimmermann).
58Ibid., p. 48, paras. 55-57 (Zimmermann).
59See CR 2010/10, pp. 34-35, para. 31.
60
See, e.g., P.Alston & J. Crawford (eds.),The Future of UN Human Rights Treaty Monitoring, Cambridge,
Cambridge University Press, 2000).
61
CR 2010/10, p. 11, para. 6. - 30 -
Committee are not judicial bodies; they are not cour ts, they do not have the power to bind States.
It is true that the CERD Committee has devel oped early warning and ur gent action procedures,
since 1993. They are no doubt useful and have been resorted to. But they are not a substitute for
provisional measures ordered by this Court. They involve ⎯ and I quote from the procedures
62
themselves ⎯ “the expression of specific concerns, along with recommendations for action” .
32. The fundamental point is this. No doubt States can create special procedures and entrust
functions to ad hoc conciliation commissions, human rights committees or whoever else they
choose. They can make the jurisdiction of these bodies exclusive or they can require prior
exhaustion of their procedures. But the jurisdiction of this Court ratione materiae extends to the
whole of international law. I said on Tuesday that there must be a presumption that the jurisdiction
of this Court is not ousted or unduly delayed by reference to non-binding procedures before bodies
which are not courts 63. That is part of your role as the principal judicial organ of the United
Nations, a universal international organization. Counsel for the Russian Federation did not address
my proposition on Wednesday; it stands unrebutted.
33. This does not mean that you cannot have regard to recommendations and views formed
by human rights treaty bodies; of course, you can. But it does no disrespect to the treaty bodies to
point out that they are not courts, as the New Zealand Court of Appeal pointed out in a case
concerning the Human Rights Committee, perhaps unnecessarily blessed subsequently by the Privy
Council 64. These preliminary objections are not about the standing or influence of the human
rights treaty bodies or of CERD; it is about the role of your Court in relation to a major multilateral
treaty. Bodies which do not exercise judicial power at the international level cannot, without an
explicit mandate, indefinitely postpone a State’s access to judicial power, especially that of this
Court.
34. The point of my little parable of State A and State B is to show the absurdity of requiring
a State, which has suffered from large-scale ethni c cleansing, going through the motions of an
62See para.14 (c) of the Guidelines for Early Warning and Ur gent Action Procedures, Annual Report A/62/18,
Anns., Chap. III last revised by the CERD Committee at its 71st Session in August 2007; emphasis added.
63
CR 2010/9, p. 46, para. 41 (Crawford).
64
Tangiora v. Wellington District Legal Services Committee, (1997) 115 ILR 655, aff’d [1999] UKPC 42. - 31 -
extensive procedure focusing on negotiation and leading to a mere recommendation in a case where
the other State adamantly refuses to co-operate. Ye t, that is the effect of the interpretation that
Russia insists on.
35. Mr.President, Members of the Court, thank you for your careful attention to
conjunctions: of such things are constitutional principles made and unmade. Mr.President, I
would now ask you to give the floor to Georgia’s Agent, Ms Burjaliani.
The PRESIDENT: I thank Professor JamesCraw ford for his presentation. I now call the
Honourable Tina Burjaliani, the Agent of Georgia.
BMURs JALIANI:
CONCLUDING REMARKS ANDSUBMISSIONS
1. Mr.President, Members of the Court. I am honoured to conclude the oral pleadings of
Georgia and make our final submissions.
2. Mr.Reichler has explained that there h as been a long-standing dispute and negotiations
between Georgia and Russia concerning ethnic di scrimination of the Georgian population from
Abkhazia and South Ossetia and concerning discriminati ng them by denial of their right of return.
This dispute is clearly over matters falling under the 1965 Convention. ProfessorCrawford has
explained that there are no preconditions to the jurisdiction of the Court under Article 22, and that
if there are any preconditions, they are certainly not cumulative and have been clearly satisfied.
This Court has jurisdiction over the case.
3. Throughout these proceedings, the Russian Federation has made a series of unfounded
accusations against Georgia that are legally irre levant. On the first day of pleadings, the
Honourable Agent of the Russian Federation asserted before this Court that Georgia has “turned the
65
facts upside down” and “fabricated claims” . Yet, it is the Russian Federation that has done
everything imaginable to defeat the Court’s jurisd iction, and to prevent objective consideration of
these facts. Georgia is condemned by Russia for r ecourse to this Court, for its commitment to
international law. Yet, it is Georgia that invit es the Court to make a determination on the facts,
65
CR 2010/8, p. 13, paras. 5-7 (Gevorgian). - 32 -
confident that the overwhelming evidence of ethnic discrimination and violence satisfies the legal
requirements of the 1965 Convention.
4. Georgia comes before this Court as a last reso rt. It comes before this Court to protect the
human rights and fundamental freedoms of hundr eds of thousands of its citizens against
discriminatory violence and forced displacement from their homes as a result of the acts of the
respondent State and the forces under its control and authority.
Despite the many obstacles it has encountered since its independence in 1991, Georgia has
emerged as a democratic, multi-ethnic State with different ethnic groups, living in harmony. But it
has constantly suffered from the instigation of ethni c conflicts on its territory, which is used as an
instrument of control and domination by the r espondent State. This policy has forced over
300,000ethnic Georgians to leave homes in South Ossetia and Abkhazia beginning in the 1990s
and continuing through to 2008. For almost 20y ears, these ethnic Georgi an IDPs have been
prevented by the respondent State from returning to their homes, on discriminatory grounds.
5. The distinguished Agent of the Russian Federation heavily relied on the 2009Report of
the European Union’s Independent International F act-Finding Mission on the Conflict in Georgia.
He did so to support their argument that Georgi a seised the Court solely because of the armed
conflict in the summer of 2008. However, the EUReport does not support this position. The
European Union’s Fact-Finding Mission views the August2008 military confrontation as a
“culminating point of a long period of increasing tensions, provocations and incidents” and it
confirms that “the conflict has deep roots in the history of the region” 66. The Report further
confirms that “the interest of great and neighbour ing powers, in particular those of the Russian
Federation” has been a core aspect of Geor gia’s relations with Abkhazians and Ossetians 67. Thus,
contrary to what the honourable Agent of the Russia n Federation stated in his closing remarks, the
European Union’s Fact-Finding Mission confirms th at the escalation of events in the summer of
2008 is merely a point along the continuum of a two-decade dispute with deep roots in history ⎯
all that, Russia is directly involved.
66
Independent International Fa ct-Finding Mission on the Conflict in Georgia, Report, Vol.I, Sep.2009, p.11,
para. 3.
6Ibid., Vol. II, Sep. 2009, (hereinafter “IIFFMCG Report, Vol II”), p. 121, para 3. - 33 -
6. The respondent State did not deny its direct military intervention and its consequences.
Yet it tries to justify its actions with an allege d Georgian attack on Russian peacekeepers. There
was no such attack. The European Union’s F act-Finding Mission found no evidence of any
68
military confrontation with the Russian peacekeepers prior to the Russian invasion . The sole
purpose of the Russian military operation in South Ossetia, Abkhazia and adjacent regions in the
summer of 2008 was to consummate two decades of ethnic discrimination by forcibly expelling the
last remnants of the Georgian population in Ab khazia and South Ossetia, respectively, that have
deep historic roots in these territories and ther eby to create ethnically homogenous entities. The
international community has condemned and rejected this unlawful and unjust conduct.
7. Mr.President, Members of the Court, the respondent State sponsored and supported the
South Ossetian and Abkhaz separatists in their cam paigns to change the ethnic composition of
South Ossetia and Abkhazia through the forced tran sfer of ethnic Georgians from their homes and
communities. This policy is inconsistent w ith the obligations Russia has assumed under the
1965 Convention and Georgia has consistently said so.
8. The distinguished Agent for the Russian Federation, in his concluding observations, stated
that over the years there have been “[nego tiations] over various aspects related to the
Georgian-Ossetian and Georgian-Abkhazian conflicts, including the return of refugees and IDPs of
various nationalities but never, never issues of racial discrimination” 69. With great respect, the
Agent of Russia misses the point that Russian policy on return is a discriminatory act. To complain
about that policy is to complain about discrimination. The denial of a right to return of IDPs and
refugees on grounds of ethnicity is covered by Article 5 of the 1965 Convention; a related point is
that, in the contexts of the Georgian-Russian ne gotiations, the question of return has been closely
related to other matters, including, but not limited to, the security and other aspects of the peaceful
resolution of the conflict. The European Union’s 2009Report, which the Respondent endorses,
states:
“[the return of IDPs and refugees] had st rong political and security aspects, since the
return of Georgian refugees and IDPs en masse to Abkhazia would again seriously
alter its ethnic composition and, eventually , its power structure. These two issues,
68
IIFFMCG Report, Vol. II, pp. 270, 327.
6CR 2010/8, p. 51, para. 8 (Gevorgian). - 34 -
however, were largely interconnected and th erefore, during that period, they were
frequently negotiated de facto in one package.” 70
To suggest that these matters do not fall under the 1965 Convention finds no basis in the reality of
what conditions of safe and dignified return require on the ground.
9. Mr.President, Members of the Court, Georgia believes that this long-standing dispute
between the two States should be resolved in accordance with international law. This case has
great importance for the Georgian people, for hundr eds of thousands of men, women, and children
who have witnessed their homes and villages burned and razed to the ground, who have lost their
family members to murder and cruelty. Those few who remain in the Gali and Akhalgori districts
suffer every day from the ethnic violence and other fo rms of discrimination. Georgia believes that
the Court has an important role to play in cont ributing to the peaceful resolution of the dispute
between the two countries. Georgia brings this case on behalf of ordinary men and women who
have suffered and for whom this Court is a symbol of justice. It is their only hope for, one day,
returning to the lives they were forced to leave behind, solely because of their ethnic identity.
10. Mr.President, Members of the Court, this brings me to our concluding submissions.
Georgia invites the Court to reject the arguments of the Russian Federation. I shall now read out
our final submissions:
Georgia respectfully requests the Court:
1. to dismiss the preliminary objections presented by the Russian Federation;
2. to hold that the Court has jurisdiction to hear the claims presented by Georgia and that these
claims are admissible.
It remains for me to thank the distinguishe d members of the Russian delegation for their
courtesy throughout the proceedings; to thank the Registry for its assistance; to thank the
interpreters, and finally, Mr. President, Members of the Court, thank you for your attention.
The PRESIDENT: I thank the honourable Tina Burjaliani, the Agent of Georgia, for her
presentation. The Court takes note of the final subm issions which you have r ead out on behalf of
Georgia, as it took note on Wednesday of the final submissions of the Russian Federation.
70
IIFFMCG Report, Vol. II, p. 82. - 35 -
Now I have a few Judges who wish to take the floor to ask questions to the Parties. I shall
now give the floor to Judge Koroma, who has a question for the Parties. JudgeKoroma, if you
please.
Judge KOROMA: Thank you, Mr. President. Given its centrality to these proceedings, I am
inviting both Parties to again study Article 22 of the Convention and elaborate for the benefit of the
Court. The question is as follows:
What precisely, in the view of the Parties, is the object and purpose of the clause contained
in Article22 of the Convention on the Eliminati on of All Forms of Racial Discrimination which
reads as follows: “which is not settled by nego tiation or by the procedures expressly provided for
in this Convention”? Thank you, Mr. President.
The PRESIDENT: Thank you, Judge Koroma. Next is Judge Abraham, who wishes to ask a
question to the Parties. Judge Abraham, you have the floor.
M.le juge ABRAHAM: Merci, Monsieur le president. Merci. Ma question s’adresse à la
Fédération de Russie.
Au stade actuel de la procédure, la Cour est appelée seulement à se prononcer sur les
exceptions préliminaires soulevées par la Partie dé fenderesse. 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 ? Merci.
The PRESIDENT: Thank you, JudgeAbraham, for your question. Now I call
Judge Cançado Trindade, who has a question to put to both of the Parties.
Judge Cançado Trindade, you have the floor.
M. le juge CANÇADO TRINDADE : Merci, Monsieur le président. Je me permets de poser
ma question aux deux Parties.
A votre avis, la nature des traités relatifs aux droits de l’homme tels que la convention
CIEDR (régissant des relations au niveau intra-étatique) a-t-elle des conséquences ou une
incidence sur l’interprétation et l’application des clauses compromissoires qu’ils contiennent ? - 36 -
Pour préserver l’équilibre linguistique de la Cour, je pose ma question aux deux Parties aussi
en anglais, l’autre langue officielle de la Cour.
In your understanding, does the nature of human rights treaties such as the CERD
Convention (regulating relations at intra-State level) have a bearing or incidence on the
interpretation and application of a compromissory clause contained therein? Thank you,
Mr. President.
The PRESIDENT: Thank you, Judge Cançado Trindade. The written text of these questions
will be sent to the Parties as soon as possible. The Parties are invited to provide their written
replies to the questions no later than Friday, 24 September 2010. I would add that any comments a
Party wishes to make, in accordance with Article 72 of the Rules of the Court, on the replies by the
other Party, must be submitted by Friday, 1 October 2010.
Now, this brings us to the end of this week of hearings devoted to the oral argument of the
Parties. I should like to thank the Agents, counsel and advocates for their statements.
In accordance with practice, I shall request both Agents to remain at the Court’s disposal to
provide any additional information it may require. With this proviso, I now declare closed the oral
proceedings 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).
The Court will now retire for deliberation. The Agents of the Parties will be advised in due
course of the date on which the Court will deliver its Judgment.
As the Court has no other business before it today, the sitting is closed.
The Court rose at 11.15 a.m.
___________
Public sitting held on Friday 17 September 2010, at 10 a.m., at the Peace Palace, President Owada presiding, in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation)