INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org
Summary
Not an official document
Summary 2011/2
1 April 2011
Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation)
Preliminary Objections
Summary of the Judgment of 1 April 2011
Chronology of the Procedure (paras. 1-19)
The Court begins by recalling that, on 12 A ugust 2008, the Government of Georgia filed in
the Registry of the Court an Application instituting proceedings against the Russian Federation in
respect of a dispute concerning “actions on and around the territory of Georgia” in breach of the
International Convention on the Elimination of A ll Forms of Racial Discrimination (hereinafter
“CERD”) of 21December1965. In order to found the jurisdiction of the Court, the Application
relied on Article 22 of CERD, which entered into force as between the Parties on 2 July 1999.
A complete history of the proceedings fo llows, in which the Court refers, inter alia , to the
Request for the indication of provisional measures filed by the Applicant on 14 August 2008, to the
“Amended Request for the Indication of Provisional Measures of Protection” filed by Georgia on
25 August 2008, and to the Order of 15 October 2008, by which the Court, after hearing the Parties,
indicated certain provisional measures to both Parties.
The Court also recalls that, on 1 December 2009, the Russian Federation raised preliminary
objections to the jurisdiction of the Court, and that, consequently, by an Order of
11December2009, the Court, noting that the proceedings on the merits were suspended, fixed
1April2010 as the time-limit for the presentation by Georgia of a written statement of its
observations and submissions on the preliminary objections made by the Russian Federation.
Georgia filed such a statement within the time-limit so prescribed, and the case thus became
ready for hearing in respect of the preliminary objections. Public hearings on the preliminary
objections raised by the Russian Federation we re held from Monday 13September to Friday
17 September 2010, at which the Court heard the oral arguments and replies of both Parties.
In its preliminary objections, the followingsubmissions were presented on behalf of the
Government of the Russian Federation:
“For the reasons advanced above, the Russian Federation requests the Court to
adjudge and declare that it lacks jurisdiction over the claims brought against the
Russian Federation by Georgia, referred to it by the Application of Georgia of
12 August 2008.” - 2 -
In the written statement of its observations and submissions on the preliminary objections,
the following submissions were presented on behalf of the Government of Georgia:
“For these reasons Georgia respectfully requests the Court:
1. to dismiss the Preliminary Objections presented by the Russian Federation;
2. to hold that it has jurisdiction to hear the claims presented by Georgia, and that
these claims are admissible.”
The Court further recalls that at the oral proceedings on the preliminary objections, the
following submissions were presented by the Parties:
On behalf of the Government of the Russian Federation,
at the hearing of 15 September 2010:
“The Russian Federation requests the Court to adjudge and declare that it lacks
jurisdiction over the claims brought against the Russian Federation by Georgia,
referred to it by the Application of Georgia of 12 August 2008.”
On behalf of the Government of Georgia,
at the hearing of 17 September 2010:
“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.”
Reasoning of the Court
I. NTRODUCTION (paras. 20-22)
It is recalled that in its Application, Ge orgia relied on Article22 of CERD to found 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”.
The Russian Federation has raised four prel iminary objections to the Court’s jurisdiction
under Article 22 of CERD. According to the first preliminary objection put forward by the Russian
Federation, there was no dispute between the Parti es regarding the interpretation or application of
CERD at the date Georgia filed its Application. In its second preliminary objection, the Russian
Federation argues that the procedural requirements of Article 22 of CERD for recourse to the Court
have not been fulfilled. The Russian Federation contends in its third objection that the alleged
wrongful conduct took place outside its territory and therefore the Cour
t lacks jurisdiction
ratione loci to entertain the case. During the oral pr oceedings, the Russian Federation stated that - 3 -
this objection did not possess an exclusively pr eliminary character. Finally, according to the
Russian Federation’s fourth objection, any ju risdiction the Court might have is limited
ratione temporis to the events which occurred after the entry into force of CERD as between the
Parties, that is 2 July 1999.
II. FIRST PRELIMINARY OBJECTION ⎯ E XISTENCE OF A DISPUTE (paras. 23-114)
The Court begins by considering the Russian Federation’s first preliminary objection that
“there was no dispute between Georgia and Russia w ith respect to the interpretation or application
of CERD concerning the situation in and around Abkhazia and South Ossetia prior to
12August2008, i.e., the date Georgia submitted it s application”. In brief, it presented two
arguments in support of that objection. First, if there was any dispute involving any allegations of
racial discrimination committed in the territory of Abkhazia and South Ossetia, the parties to that
dispute were Georgia on the one side and Abkhazi a and South Ossetia on the other, but not the
Russian Federation. Secondly, even if there was a dispute between Georgia and the Russian
Federation, any such dispute was not one related to the application or interpretation of CERD.
The Court notes that Georgia, in response, conte nds that the record shows that, over a period
of more than a decade prior to the filing of its Application, it has consistently raised its serious
concerns with the Russian Federation over unlawful acts of racial discrimination that are
attributable to that State, making it clear that there exists a long-standing dispute between the two
States with regard to matters falling under CERD.
1. The meaning of “dispute” (paras. 26-30)
The Court points out that, on the law, the Russi an Federation contends in the first place that
the word “dispute” in Article 22 of CERD has a speci al meaning which is narrower than that to be
found in general international law and accordingly more difficult to satisfy. The Russian
Federation submits that, under CERD, States Parties are not considered to be in “dispute” until a
“matter” between those parties has crystallized through a five-stage process involving the
procedures established under the Convention. This contention depends on the wording of
Articles11 to 16 of CERD and the distincti ons they are said to make between “matter”,
“complaints” and “disputes”.
The Court also notes that Georgia, in its subm issions, rejects the argument that the term
“dispute” in Article22 has a special meaning. It contends that the releva nt provisions of CERD,
particularly Articles 12 and 13, use the terms “mat ter”, “issue” and “dispute” without distinction or
any trace of any special meaning.
The Court does not consider that the words “matter”, “complaint”, “dispute” and “issue” are
used in Articles 11 to 16 in such a systematic wa y that requires that a narrower interpretation than
usual be given to the word “dispute” in Article 22. Further, the word “dispute” appears in the first
part of Article22 in exactly the same way as it appears in several other compromissory clauses
adopted around the time CERD was being prepared: “Any dispute between two or more States
Parties with respect to the interpretation or app lication of this Convention...” (e.g.,Optional
Protocol of Signature to the Conventions on the Law of the Sea of 1958 concerning the
Compulsory Settlement of Disputes, Article1; Single Convention on Narcotic Drugs of 1961,
Article 48; Convention on the Settlement of Inv estment Disputes between States and Nationals of
other States of 1965, Article64). That consistency of usage suggests that there is no reason to
depart from the generally understood meaning of “dispute” in the compromissory clause contained
in Article 22 of CERD. Finally, the submissions made by the Russian Federation on this matter did
not in any event indicate the particular form that narrower interpretation was to take. Accordingly, - 4 -
the Court rejects this first contention of the Russi an Federation and turns to the general meaning of
the word “dispute” when used in relation to the jurisdiction of the Court.
The Court recalls its established case law on that matter, beginning with the frequently
quoted statement by the Permanent Court of Inte rnational Justice in the Mavrommatis Palestine
Concessions case in 1924: “A dispute is a disagreement on a point of law or fact, a conflict of legal
views or of interests between two persons.” The International Court of Justice has indicated that
whether there is a dispute in a given case is a matter for “objective determination” by the Court,
and that “[i]t must be shown that the claim of one party is positively opposed by the other”. The
Court’s determination must turn on an examination of the facts. The matter is one of substance, not
of form. As the Court has recognized in its case law, 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.
While the existence of a dispute and the undertaki ng of negotiations are distinct as a matter of
principle, the negotiations may help demonstrat e the existence of the dispute and delineate its
subject-matter.
The dispute must in principle exist at the time the Application is submitted to the Court;
the Parties were in agreement with this proposition. Further, in terms of the subject-matter of the
dispute, to return to the terms of Article22 of CERD, the dispute must be “with respect to the
interpretation or application of [the] Convention”. While it is not necessary that a State must
expressly refer to a specific treaty in its exchanges with the other State to enable it later to invoke
that instrument before the Court, the exchanges mu st refer to the subject-matter of the treaty with
sufficient clarity to enable the St ate against which a claim is made to identify that there is, or may
be, a dispute with regard to that subject-matte r. An express specification would remove any doubt
about one State’s understanding of the subject-matte r in issue and put the other on notice. The
Parties agree that that express specification does not appear in this case.
2. The evidence about the existence of a dispute (paras. 31-39)
The Court then turns to the evidence submitted to it by the Parties to determine whether it
demonstrates, as Georgia contends, that at the time it filed its Application, on 12August2008, it
had a dispute with the Russian Federation with re spect to the interpretation or application 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
interpretation or application” of CERD, as require d by Article 22 of CERD; and (3) whether that
disagreement existed as of the date of the Applic ation. To that effect, it needs to determine
whether Georgia made such a claim and whether the Russian Federation positively opposed it with
the result that there is a dispute between them in terms of Article 22 of CERD.
Before the Court considers the evidence bear ing on the answers to those issues, it observes
that disputes undoubtedly did arise between June 1992 and August2008 in relation to events in
Abkhazia and South Ossetia. Those disputes involve d a range of matters including the status of
Abkhazia and SouthOssetia, outbreaks of armed conflict and alleged breaches of international
humanitarian law and of human rights, including the rights of minorities. It is within that complex
situation that the dispute which Georgia alleges to exist and which the Russian Federation denies is
to be identified. One situation may contain disputes which relate to more than one body of law and
which are subject to different dispute settlement procedures; the Parties accepted that proposition.
The Parties referred the Court to many docum ents and statements relating to events in
Abkhazia and South Ossetia from 1990 to the time of the filing by Georgia of its Application and
beyond. In their submissions they emphasized thos e with an official character. The Court limits
itself to official documents and statements. - 5 -
The Parties also distinguished between documents and statements issued before 2 July 1999
when Georgia became party to CERD, thus establishing a treaty relationship between Georgia and
the Russian Federation under CERD, and the later documents and statements, and, in respect of
those later documents and statements, between tho se issued before the armed conflict which began
on the night of 7 to 8August2008 and those in the following days up to 12August when the
Application was filed. Georgia cited statements relating to events before 1999 “not as a basis for
Georgia’s claims against Russia in this action, but as evidence that the dispute with Russia over
ethnic cleansing is long-standing and legitimate a nd not of recent invention”. The Court also
makes a distinction between documents issued a nd statements made before and after Georgia
became party to CERD.
The documents and statements also vary in their authors, their intended, likely and actual
recipients or audience, the occasion of their delivery and their content. Some are issued by the
Executive or members of the Executive of one Party or the other ⎯ the President, the Foreign
Minister, the Foreign Ministry and other Ministries ⎯ and others by Parliament, particularly of
Georgia, and members of Parliament. Some are press statements or records of interviews, others
are internal minutes of meetings prepared by one Part y. Some are directed to particular recipients,
particularly by a member of the Executive (the President or Foreign Minister) to the counterpart of
the other Party or to an international organization or official such as the United Nations
Secretary-General or the President of the Security Council. The other Party may or may not be a
member of the organization or body. One particular category consists of reports submitted to treaty
monitoring bodies, such as the Human Rights Committee, the Committee on the Elimination of
Racial Discrimination, and the Committee against Torture. Another category is made up of
Security Council resolutions adopted between 1993 and April2008 relating to Abkhazia. Other
documents record agreements between various parties or are formal minutes of their meetings. The
parties sometimes include the “Abkhaz side”, the “South Ossetian side”, the “North Ossetian side”,
in some cases with Georgia alone and in the others with Georgia and Russia and both “Ossetian
sides”. The reference to “parties” may sometimes be elaborated as “parties to the conflict” or
“parties to the agreement”. The United Nati ons High Commissioner for Refugees (UNHCR) and
the Organization for Security and Co-operation in Europe (OSCE) have also been signatories in
appropriate cases, but are not named as parties to the agreements.
The Parties gave their main attention to the contents of the documents and statements and the
Court does likewise. It observes at this stage that a dispute is more likely to be evidenced by a
direct clash of positions stated by the two Parties about their respective rights and obligations in
respect of the elimination of racial discrimination, in an exchange between them, but, as the Court
has already noted, there are circumstances in which the existence of a dispute may be inferred from
the failure to respond to a claim. Further, in ge neral, in international law and practice, it is the
Executive of the State that represents the State in its international relations and speaks for it at the
international level. Accordingly, primary attention is given to statements made or endorsed by the
Executives of the two Parties.
The Russian Federation states that the primary dispute that existed between it and Georgia
was about the allegedly unlawful use of force by the Russian Federation after 7August2008.
Georgia by contrast emphasized the references in the statements to “ethnic cleansing” and to the
obstacles in the way of the return of refugees and internally displaced persons (IDPs). The Court
takes account of those matters as it reviews the legal significance of the documents and statements
to which the Parties gave their principal attention.
Before it considers those documents and statements, the Court addresses the agreements
reached in the 1990s and the Security Council resolutions adopted from the 1990s until early 2008.
Those agreements and resolutions provide an importa nt part of the context in which the statements
which the Parties invoke were made. In particular they help define the different roles which the
Russian Federation was playing during that period. - 6 -
3. Relevant agreements and Security Council resolutions (paras. 40-49)
The Court recalls, inter alia , that so far as South Ossetia is concerned, Georgia and the
Russian Federation on 24June1992 concluded an agreement on principles of settlement of the
Georgian-Ossetian conflict (the Sochi Agreement). The agreement provided for a ceasefire and a
withdrawal of armed formations (with particular c ontingents of the Russian Federation identified);
and, to exercise control over the implementation of those measures, a joint control commission was
to be established, consisting of representatives of all parties involved in the conflict. The Court
gives an account of the meetings and decisions of the Joint Control Commission (JCC).
So far as Abkhazia is concerned, the Cour t recalls that the President of the Russian
Federation and the Chairman of the State Council of the Republic of Georgia on 3 September 1992
signed the Moscow Agreement. Their discussion s, they recorded, had involved “leaders of
Abkhazia, the North Caucasus Republics, Regions a nd Districts of the Russian Federation”. The
agreement provided for a ceasefire, confirmed the necessity of observing the international norms in
the sphere of human rights and minority rights, the inadmissibility of discrimination, and provided
that “[t]he Troops of the Russian Federation, te mporarily deployed on the territory of Georgia,
including in Abkhazia, shall firmly observe neutrality”. On 9July1993 the Security Council
requested the Secretary-General to make the necessary preparations for a military observer mission
once the ceasefire between the Government of Georgia and the Abkhaz authorities was
implemented (Security Council resolution849(1993)). The ceasefire agreement was signed on
27July1993 with the mediation of the Deputy Foreign Minister of the Russian Federation in the
role of facilitator and the joint commission was est ablished. The parties considered it necessary to
invite international peacekeeping forces in the conflict zones; “[t]his task may be shared, subject to
consultation with the United Nations, by the Russi an military contingent temporarily deployed in
the zone”. The United Nations Observer Mission in Georgia (UNOMIG) was established by
Security Council resolution858(1993) on 24Au gust1993. The Court reviews other relevant
agreements and Security Council resolutions (including resolutions 876 (1993), 934 (1994),
901(1994), 937(1994) and 1036(1996)) as well as the negotiations between the Georgian and
Abkhaz sides, held in Geneva from 30November to 1December1993, under the aegis of the
United Nations, with the Russian Federation as facilitator and a representative of the CSCE ⎯
known as the “Geneva process”. The Court recalls th at this Geneva process was assisted by the
Group of Friends of the Secretary-General (Fran ce, Germany, the Russian Federation, the United
Kingdom and the United States). The Court recalls that it was only after the armed conflict of
August2008 that Georgia requested, on 1Septem ber2008, that the operation of the collective
peacekeeping forces be discontinued.
4. Documents and statements from the period before CERD entered into force between the
Parties on 2 July 1999 (paras. 50-64)
The Court reviews the documents and statements issued before 2 July 1999 and invoked by
Georgia to demonstrate that in the period before it became bound by CERD it had a dispute with
the Russian Federation about racial discriminati on by the latter, especially Russian Federation
forces, against ethnic Georgians. In that regard, the Court recalls that these earlier documents and
statements may help to put into context those docum ents or statements which were issued or made
after the entry into force of CERD between the Parties.
The Court concludes that none of the documents or statements provides any basis for a
finding that there was a dispute about racial discrimination by July 1999. The reasons appear in the
foregoing paragraphs in respect of each document or statement. They relate to the author of the
statement or document, their intended or actual addressee, and their content. Several of the
documents and statements emanated from the Georgian Parliament or Parliamentary Officers and
were neither endorsed nor acted upon by the Executive. Finally, so far as the subject-matter of
each document or statement is concerned, it compla ins of actions by the Abkhaz authorities, often - 7 -
referred to as “separatists”, rather than by the Russian Federation; or the subject-matter of the
complaints is the alleged unlawful use of force, or the status of Abkhazia, rather than racial
discrimination; and, where there is a possibly rele vant reference, usually to the impeding of return
of refugees and IDPs, it is as an incidental element in a larger claim ⎯ about the status of
Abkhazia, the withdrawal of the Russian Federati on troops or the alleged unlawful use of force by
them.
It follows from this general finding of the Court and the specific findings made with regard
to each document and statement, that Georgia has no t, in the Court’s opinion, cited any document
or statement made before it became party to CERD in July 1999 which provides support for its
contention that “the dispute with Russia over ethnic cleansing is long-standing and legitimate and
not of recent invention”. The Court adds that even if this were the case, such dispute, though abo
ut
racial discrimination, could not have been a disput e with respect to the interpretation or application
of CERD, the only kind of dispute in respect of wh ich the Court is given jurisdiction by Article 22
of that Convention.
5. Documents and statements from the peri od after CERD entered into force between the
Parties and before August 2008 (paras. 65-105)
The Court finds it convenient first of all to consider as a group the reports made after 1999
by the two Parties to treaty monitoring committees. These reports relate to CERD, the
International Covenant on Economic, Social a nd Cultural Rights (ICESCR), the International
Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The Court observes that a State may claim that another State is in breach of its obligations
under CERD without initiating that process. It also observes that in general the process under
which States report on a regular basis to the m onitoring committees operates between the reporting
State and the committee in question; it is a process in which the State reports on the steps which it
has taken to implement the treaty. The process is not designed to involve other States and their
obligations. Taking account of those features and of the actual reports referred to in this case, the
discussions of and the observations on them, the Court does not consider that in this particular case
the reports to the committees are significant in determining the existence of a dispute.
Turning to the documents and statements in the case file from the period after CERD entered
into force between the Parties and before August2008, the Court refers, inter alia , to a resolution
adopted by the Georgian Parliament in October200 1. This resolution begins with a reference to
the suffering arising “from the tragic results of sep aratism, international terrorism and aggression”.
It alleged that since the deployment of Russi an Federation peacekeepers under the auspices of the
CIS, the policies of ethnic cleansing had not stoppe d. In this resolution, the Russian Federation
now appeared as a party involved in the conflict.
The Court notes that, in assessing the October2001 Parliamentary resolution, as with the
other documents and statements invoked by the Pa rties, it must have regard, among other matters,
to the distinct roles of the Russian Federation, in the CIS peacekeeping forces, as facilitator and as
one of the Friends of the Secretary-General. In that context and given that the Georgian
Parliamentary resolution of October 2001 had not been endorsed by the Georgian Government, the
Court cannot give it any legal significance for the purposes of the present case.
The Court continues its analysis of the doc uments and statements from the period under
review, among which Security Council resolution 13 93 (2002), documents relating to the outcome
of high-level meetings between representatives of the Parties, various exchanges between the
Parties as well as a number of resolutions adopted by the Georgian Parliament and forwarded to the
Secretary-General by the Georgian Permanen t Representative, including a resolution dated - 8 -
11October2005. With regard to this latter Parl iamentary resolution, the Court notes that it was
referred to in a letter of 27October2005 by th e Permanent Representative of Georgia to the
President of the Security Council. That letter did not contain any endorsement of the Parliamentary
resolution. The Court finds that it is unable to see in this letter any claim against the Russian
Federation by the Georgian Government of breaches of obligations under CERD.
The Court recalls Georgia’s emphasis on the Parliamentary resolutions which were
transmitted to the United Nations, and sees it as sign ificant that on all those occasions when the
Georgian Government transmitted Parliamentary resolutions to the Secretary-General to be
circulated as official United Nations documents, that Government did not refer to those agenda
items which relate to the subject-matter of CERD, such as racial discrimination, or, as the case may
be, refugees and IDPs, or, indeed, human rights in struments more generally. Similarly the Court
finds that statements about the conflict zon es emanating from the Georgian Government and
transmitted by the Georgian Permanent Representative to the Secretary-General and President of
the Security Council in August and September 2006, in September and October 2007 and in March
and April 2008 do not, except in one case, make a ny reference to the Russian Federation as being
responsible for acts of racial discrimination.
The Court, on the basis of its review of the documents and statements issued by the Parties
and others between 1999 and July 2008 concludes, for the reasons given in relation to each of
them, that no legal dispute ar ose between Georgia and the Russi an Federation during that period
with respect to the Russian Federation’s compliance with its obligations under CERD.
6. August 2008 (paras. 106-114)
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 2009, 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 cleansing by Russian forces.
The first statement cited by Georgia from this period is its Presidential Decree on the
Declaration of a State of War and Full Scale Mobilization of 9 August 2008. The Court observes
that this decree does not allege that the Russian Federation was in breach of its obligations relating
to the elimination of racial discrimination. Its concern is with the allegedly unlawful use of armed
force.
The Court then considers a press conference w ith foreign journalists held on 9 August 2008,
during which PresidentSaakashvili made a stat ement which began with allegations about
“Russia . . . launch[ing] a full scale military invasion of Georgia”. The President said that he also
had to indicate the Russian troops had “committed the ethnic cleansing in all areas they control in
South Ossetia” and that they were also “trying to set up the ethnic cleansing of ethnic Georgians
from upper Abkhazia”. On the following day, 10A ugust2008, the Georgian representative, at a
meeting of the Security Council called at Georgia’s request, in his initial statement referred to “the
process of exterminating the Georgian population”, but the first explicit reference to racial
discrimination came in the initial statement by th e representative of the Russian Federation, when
he referred to the high number of refugees fleeing to the Russian Federation from South Ossetia as
a result of the “ethnic cleansing” being carried out by the Georgian leadership. The Georgian
representative responded that “[w]e cannot [turn a blind eye] now because that is exactly Russia’s
intention: to erase Georgian statehood and to exterminate the Georgian people”. The
representative of the Russian Federation in the next statement in the debate countered that “the
intention of the Russian Federation in this case is to ensure that the people of South Ossetia and
Abkhazia not fear for their lives or for their identit y”. The Court observes that civilians in regions - 9 -
directly affected by ongoing military conflict will in many cases try to flee ⎯ in this case
Georgians to other areas of Georgia and Ossetians to the Russian Federation.
On 11 August 2008 the Georgian Ministry of Foreign Affairs released a statement to the
effect that:
“According to the reliable information held by the Ministry of Foreign Affairs
of Georgia, Russian servicemen and separatists carry out mass arrests of peaceful
civilians of Georgian origin still remainingon the territory of the Tskhinvali region
and subsequently concentrate them on the territory of the village of Kurta.”
On that same day, 11August, President Saakashvili in a CNN interview made further
allegations of “ethnic cleansing” by Russian troops of the ethnic Georgian population of Abkhazia
and South Ossetia.
On the following day, 12August2008, the Foreign Minister of the Russian Federation in a
Joint Press Conference with the Minister for Fo reign Affairs of Finland in his capacity as
Chairman-in-Office of the OSCE, said the following:
“A couple of days after [US Secretary of State] Rice had urgently asked me not
to use such expressions, Mr. Saakashvili . . . cl aimed hysterically that the Russian side
wanted to annex the whole of Georgia and, in general, he did not feel shy of using the
term ethnic cleansings, although, true, it wa s Russia that he accused of carrying out
those ethnic cleansings.”
The Court observes that while the Georgian claims of 9 to 12August2008 were primarily
claims about the allegedly unlawful use of force, they also expressly referred to alleged ethnic
cleansing by Russian forces. These claims were ma de against the Russian Federation directly and
not against one or other of the parties to the ealier conflicts, and were rejected by the Russian
Federation. The Court concludes that the exchanges between the Georgian and Russian
representatives in the Security Council on 10August2008, the claims made by the Georgian
President on 9 and 11August and the response on 12August by the Russian Foreign Minister
establish that by that day, the day on which Geor gia submitted its Application, there was a dispute
between Georgia and the Russian Federation about the latter’s compliance with its obligations
under CERD as invoked by Georgia in this case.
The first preliminary objection of the Russian Federation is accordingly dismissed.
III. ECOND PRELIMINARY OBJECTION ⎯ PROCEDURAL CONDITIONS IN A RTICLE 22 OF CERD
(paras. 115-184)
1. Introduction (paras. 115-121)
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 preconditio ns contained in Article 22 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. - 10 -
2. Whether Article 22 of CERD establishes procedural conditions for the seisin of the Court
(paras. 122-147)
The Parties deploy a number of arguments in support of their respective interpretations of
Article 22 of CERD, relating to: (a) the ordinary meaning of its terms in their context and in light
of the object and purpose of the Convention, invoking, in support of their respective positions, the
Court’s jurisprudence dealing with compromissory clauses of a similar nature ; and (b) the travaux
préparatoires of CERD.
(a) Ordinary meaning of Article 22 of CERD (paras. 123-141)
The Court begins by recalling the positions of the Parties. The Court then states that before
providing its interpretation of Article 22 of CERD, it wishes, as a preliminary matter, to make three
observations.
First, the Court recalls that in paragraph1 14 of its Order of 15October2008 it stated that
“the phrase ‘any dispute . . . which is not settled by negotiation . . .’ does not, in its plain meaning,
suggest that formal negotiations in the framework of the Convention . . . constitute preconditions to
be fulfilled before the seisin of the Court”. However, the Court also observed that “Article 22 does
suggest that some attempt should have been made by the claimant party to initiate, with the
respondent party, discussions on issues that would fall under CERD”.
The Court further recalls that, in the same Order, it also indicated that this provisional
conclusion is without prejudice to the Court’s definitive decision on the question of whether it has
jurisdiction to deal with the merits of the case, wh ich is to be addressed after consideration of the
written and oral pleadings of both Parties.
Secondly, the Court is called upon to determin e whether a State must resort to certain
procedures before seising the Court. In this context, it notes that the terms “condition”,
“precondition”, “prior condition” , “condition precedent” are sometimes used as synonyms and
sometimes as different from each other. There is in essence no difference between those
expressions save for the fact that, when unqualified, the term “condition” may encompass, in
addition to prior conditions, other conditions to be fulfilled concurrently with or subsequent to an
event. To the extent that the procedural require ments of Article22 may be conditions, they must
be conditions precedent to the seisin of the Court even when the term is not qualified by a temporal
element.
Thirdly, it is not unusual in compromissory clauses conferring jurisdiction on the Court and
other international jurisdictions to refer to resort to negotiations. Such resort fulfils three distinct
functions. In the first place, it gives notice to the respondent State that a dispute exists and delimits
the scope of the dispute and its subject-matter. The Permanent Court of International Justice was
aware of this when it stated in the Mavrommatis case that “before a dispute can be made the subject
of an action in law, its subject-matter should have been clearly defined by means of diplomatic
negotiations”.
In the second place, it encourages the Parties to attempt to settle their dispute by mutual
agreement, thus avoiding recourse to binding third-party adjudication.
In the third place, prior resort to negotiations or other methods of peaceful dispute settlement
performs an important function in indicating the limit of consent given by States.
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. Leaving aside the question of whether the two modes of - 11 -
peaceful resolution are alternative or cumulative, the Court notes that Article 22 of CERD qualifies
the right to submit “a dispute” to the jurisdiction of the Court by the words “which is not settled”
by the means of peaceful resolution specified ther ein. Those words must be given effect. By
interpreting Article 22 of CERD to mean, as Georgia c ontends, that all that is needed is that, as a
matter of fact, the dispute had not been resolved (through negotiations or through the procedures
established by CERD), a key phrase of this provision would become devoid of any effect.
Moreover, it stands to reason that if, as a matter of fact, a dispute had been settled, it is no
longer a dispute. Therefore, if the phrase “which is not settled” is to be interpreted as requiring
only that the dispute referred to the Court must in fact exist, that phrase would have no usefulness.
Similarly, the express choice of two modes of dispute settlement, namely, negotiations or resort to
the special procedures under CERD, suggests an affi rmative duty to resort to them prior to the
seisin of the Court.
The Court also observes that, in its French version, the above-mentioned expression employs
the future perfect tense (“[t]out différend . . . qui n’aura pas été réglé par voie de négociation ou au
moyen des procédures expressément prévues par la convention”), whereas the simple present tense
is used in the English version. The Court notes that the use of the future perfect tense further
reinforces the idea that a previous action (an attemp t to settle the dispute) must have taken place
before another action (referral to the Court) can be pursued. The other three authentic texts of
CERD, namely the Chinese, the Russian and the Spanish texts, do not contradict this interpretation.
The Court further recalls that, like its pred ecessor, the Permanent Court of International
Justice, it has had to consider on several occasions whether the reference to negotiations in
compromissory clauses establishes a precondition to the seisin of the Court. As a preliminary
matter, the Court notes that though similar in character, compromissory clauses containing a
reference to negotiation (and sometimes additional methods of dispute settlement) are not always
uniform. Some contain a time-element for negotiations, the expiry of which would trigger a duty to
arbitrate or to have recourse to the Court. Furt hermore, the language used contains variations such
as “is not settled by” or “cannot be settled by”. Sometimes, especially in older compromissory
clauses, the expression used is “which is not” or “cannot be adjusted by negotiation” or “by
diplomacy”.
The Court then considers its jurisprudence concerning compromissory clauses comparable to
Article22 of CERD. Both Parties rely on this jurisprudence as supportive of their respective
interpretations of the ordinary meaning of Article 22. The Court observes that in each of these
earlier cases, it has interpreted the reference to negotiations as constituting a precondition to seisin.
Accordingly, the Court concludes that in their ordinary meaning, the terms of Article22 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.
(b) Travauxpréparatoires (paras. 142-147)
In light of this conclusion, the Court need not resort to supplementary means of
interpretation such as the travaux préparatoires of CERD and the circumstances of its conclusion,
to determine the meaning of Article22. Howeve r, the Court notes that both Parties have made
extensive arguments relating to the travaux préparatoires , citing them in support of their respective
interpretations of the phrase “a dispute which is not settled . . .”. Given this and the further fact that
in other cases, the Court had resorted to the travaux préparatoires in order to confirm its reading of
the relevant texts, the Court considers that in this case a presentation of the Parties’ positions and
an examination of the travaux préparatoires is warranted. - 12 -
After reviewing the Parties’ arguments on the question, the Court notes that at the time when
CERD was being elaborated, the idea of submitting to the compulsory settlement of disputes by the
Court was not readily acceptable to a number of States. Whilst States could make reservations to
the compulsory dispute settlement provisions of the Convention, it is reasonable to assume that
additional limitations to resort to judicial settle ment in the form of prior negotiations and other
settlement procedures without fixed time-limits were provided for with a view to facilitating wider
acceptance of CERD by States.
Beyond this general observation relating to the circumstances in which CERD was
elaborated, the Court notes that the u sefulness of the travaux préparatoires in shedding light on the
meaning of Article 22 is limited by the fact that there was very little discussion of the expression “a
dispute which is not settled”. A notable exception and one to which some significance must be
attached is the statement by the Ghanaian dele gate, one of the sponsors of the “Three-Power”
amendment on the basis of which th e final wording of Article 22 of CERD was agreed. He stated:
“[T]he Three-Power amendment was self-explanator y. Provision has been made in the draft
Convention for machinery which should be used in the settlement of disputes before recourse was
had to the International Court of Justice .” The Court adds that it should be borne in mind that this
machinery encompassed negotiation which was alre ady mentioned expressly in the text proposed
by the Officers of the Third Committee.
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 already
arrived through the main method of ordinary meaning interpretation.
3. Whether the conditions for the seisin of the Court under Article22 of CERD have been
fulfilled (paras. 148-184)
Having thus interpreted Article 22 of CERD to the effect that it imposes preconditions which
must be satisfied before resorting to the Cour t, the next question is whether these preconditions
were complied with. First of all, the Court notes that Georgia did not claim that, prior to seising the
Court, it used or attempted to use the proce dures expressly provided for in CERD. The Court
therefore limits its examination to the questi on of whether the precondition of negotiations was
fulfilled.
(a) The concept of negotiations (paras. 150-162)
After reviewing the Parties’ arguments on the concept of negotiations, the Court first
addresses a series of issues involving the nature of the precondition of negotiations, namely:
assessing what constitutes negotiations; consideri ng their adequate form and substance; and
determining to what extent they should be pursu ed before it can be said that the precondition has
been met.
In determining what constitutes negotiations, the Court observes that negotiations are distinct
from mere protests or disputations. Negotiations entail more than the plain opposition of legal
views or interests between two parties, or the ex istence of a series of accusations and rebuttals, or
even the exchange of claims and directly oppo sed counter-claims. As such, the concept of
“negotiations” differs from the concept of “dispute”, and 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. - 13 -
The Court further notes that, clearly, evid ence of such an attempt to negotiate ⎯ or of the
conduct of negotiations ⎯ does not require the reaching of an actual agreement between the
disputing parties. The Court adds that, manifes tly, in the absence of evidence of a genuine attempt
to negotiate, the precondition of negotiation is not met. However, where negotiations are attempted
or have commenced, the jurisprudence of this C ourt and of the Permanent Court of International
Justice clearly reveals that the precondition of negotiation is met only when there has been a failure
of negotiations, or when negotiations have become futile or deadlocked.
Furthermore, ascertainment of whether negotiations, as distinct from mere protests or
disputations, have taken place, a nd whether they have failed or become futile or deadlocked, are
essentially questions of fact “for consideration in each case”. Notwithstanding this observation, the
jurisprudence of the Court has outlined genera l criteria against which to ascertain whether
negotiations have taken place. In this regard, the Court has come to accept less formalism in what
can be considered negotiations and has recognized “diplomacy by conference or parliamentary
diplomacy”.
Concerning the substance of negotiations, the Court recalls that it has accepted that the
absence of an express reference to the treaty in question 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 negotia tions must relate to the subject-matter of the
treaty containing the compromissory clause. In ot her words, the subject-matter of the negotiations
must relate to the subject-matter of the disput e which, in turn, must concern the substantive
obligations contained in the treaty in question.
In the present case, the Court is therefore assessing whether Georgia genuinely attempted to
engage in negotiations with the Russian Federa tion, with a view to resolving their dispute
concerning the Russian Federation’s compliance w ith its substantive obligations under CERD.
Should it find that Georgia genuinely attempted to engage in such negotiations with the Russian
Federation, the Court would examine whether Georgia pursued these negotiations as far as possible
with a view to settling the dispute. To make th is determination, the Court needs to ascertain
whether the negotiations failed, became futile, or reached a deadlock before Georgia submitted its
claim to the Court.
(b) Whether the Parties have held negotiations on matters concerning the interpretation or
application of CERD (paras. 163-184)
Against the background of these criteria, the Court then turns to the evidence submitted to it
by the Parties to determine whether this evidence demonstrates, as stated by Georgia, that at the
time it filed its Application on 12 August 2008, there had been negotiations between itself and the
Russian Federation concerning the subject-matter of their legal dispute under CERD, and that these
negotiations had been unsuccessful.
After considering the Parties’ arguments on th e question, the Court recalls its conclusions
regarding the Russian Federation’s first preliminar y objection, as it is directly connected to the
Russian Federation’s second preliminary objection. After examination of the evidence submitted
by the Parties, the Court concluded 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. Specifically, the evidence put fo rth by Georgia which pre-dates the beginning of
armed hostilities in South Ossetia during the night of 7 to 8 August 2008 failed to demonstrate the
existence of a legal dispute be tween Georgia and the Russian Federation on matters falling under
CERD.
The Court finds that it stands to reason that it was only possible for the Parties to be
negotiating the matters in dispute, namely, the Russian Federation’s compliance with its obligations - 14 -
relating to the elimination of racial discrimina tion, between 9August2008 and the date of the
filing of the Application, on 12August2008, i.e., the period during which the Court found that a
dispute capable of falling under CERD had arisen between the Parties.
The Court’s task at this point is therefore twofold: first, to determine whether the facts in the
record show that, during this circumscribed period, Georgia and the Russian Federation engaged in
negotiations with respect to the matters in disput e concerning the interpretation or application of
CERD; and secondly, if the Parties did engage in such negotiations, to determine whether those
negotiations failed, therefore enabling the Court to be seised of the dispute under Article 22.
Before the Court considers the evidence bear ing on the answers to those two questions, it
observes that negotiations did take place between Georgia and the Russian Federation before the
start of the relevant dispute. These negotiations involved several matters of importance to the
relationship between Georgia and the Russian Federa tion, namely, the status of South Ossetia and
Abkhazia, the territorial integrity of Georgia, th e threat or use of force, the alleged breaches of
international humanitarian law and of human ri ghts law by Abkhaz or South Ossetian authorities
and the role of the Russian Federation’s peacekee pers. However, in the absence of a dispute
relating to matters falling under CERD prior to 9 August 2008, these negotiations cannot be said to
have covered such matters, and ar e thus of no relevance to the Court’s examination of the Russian
Federation’s second preliminary objection.
The Court examines the evidence presented to it by the Parties. In particular, the Court takes
note of certain significant elements of the conten t of the transcript of a press conference held in
Moscow on 12August2008 ⎯ the date of Georgia’s filing of its Application ⎯ by the Russian
Federation’s Minister for Foreign Affairs and the Minister for Foreign Affairs of Finland and
Chairman-in-Office of the OSCE. First, the Court observes that the Russian Federation places the
blame for the outbreak of armed activities on the present Georgian leadership. Secondly, the
Russian Federation asserts that it has “no trust in Mikhail Nikolayevich Saakashvili”, and that
“mov[ing] to mutually respectful relations.. . is hardly possible with the present Georgian
leadership”. Thirdly, the Russian Federation announces that its “approaches toward the negotiation
process will undergo substantial change”. Fourthly, the Russian Federation proposes its view of
the essential next steps in the restoration of peace, including the cessation of armed activities, and
the “signing of a legally binding agreement on the non-use of force” between Georgia, Abkhazia
and South Ossetia. Fifthly, the Russian Federation has received confirmation from the
Chairman-in-Office of the OSCE that Georgia is ready for the conclusion of such a pledge on the
non-use of force. Additionally, the Russian Federation’s Foreign Minister declared that “As a
matter of fact, it will be no exaggeration to say th at the talk is about ethnic cleansings, genocide
and war crimes [committed by Georgia].”
The Court makes two observations on the basis of the Russian Federation’s Foreign
Minister’s remarks. First, with regard to the subject-matter of CERD, the Court notes that the topic
of ethnic cleansing had not become the subject of genuine negotiations or attempts at negotiation
between the Parties. The Court is of the vi ew that although the claims and counter-claims
concerning ethnic cleansing may evidence the existence of a dispute as to the interpretation and
application of CERD, they do not constitute attempts at negotiations by either Party.
Secondly, the Court observes that the issue of negotiations between Georgia and the Russian
Federation is complex. On the one hand, the Russi an Federation’s Foreign Minister manifested his
discontent with regard to President Saakashvili pers onally, and stated that he “do[es] not think that
Russia will have the mindset not only to negotiate, but even to speak with Mr.Saakashvili”. On
the other hand, the Foreign Minister did not make his desire to see Presid ent Saakashvili “repent”
for his “crime against our citizens” a “condition for ending this stage of the military operation”, and
for resuming talks on the non-use of force. He furt her stated that “As to Georgia, we have always
treated and continue to treat the Georgian people with deep respect.” - 15 -
Notwithstanding the tone of certain remarks made by the Foreign Minister of the Russian
Federation about President Saakashvili, the Court considers that overall the Russian Federation did
not dismiss the possibility of future negotiations on the armed activities in which it was engaged at
the time, and on the restoration of peace between Georgia, Abkhazia and South Ossetia. However,
the Court considers that the subject-matter of such negotiations was not the compliance by the
Russian Federation with its obligations relating to the elimination of racial discrimination.
Therefore, regardless of the Russian Federation’s ambiguous and perhaps conflicting statements on
the subject of negotiations with Georgia as a w hole, and PresidentSaakashvili personally, these
negotiations did not pertain to CERD-related matt ers. As such, whether the Russian Federation
wanted to end or to continue negotiations with Ge orgia on the matter of the armed conflict is of no
relevance for the Court in the present case. Cons equently, remarks by the President and by the
Foreign Minister of the Russian Federation regarding the prospects of talks with the Georgian
President did not terminate the possibility of CERD-related negotiations, as those were never
genuinely or specifically attempted.
In sum, the Court is unable to consider these statements ⎯ whether in the Georgian
presidential press briefing or at the Security Council meeting ⎯ as genuine attempts by Georgia to
negotiate matters falling under CERD. As outlin ed in detail with regard to the Russian
Federation’s first preliminary objection, the Court considers that these accusations and replies by
both Parties on the issues of “extermination” and “ethnic cleansing” attest to the existence of a
dispute between them on a subject-matter capable of falling under CERD. However, they fail to
demonstrate an attempt at negotiating these matters.
The Court is thus also unable to agree with Georgia’s submission when it claims that
“Russia’s refusal to negotiate with Georgia in the midst of its ethnic cleansing campaign, and two
days prior to the filing of the Application is sufficient to vest the Court with jurisdiction under
Article22”. The Court concludes that the facts in the record show that, between 9August and
12August2008, Georgia did not attempt to negot iate CERD-related matters with the Russian
Federation, and that, consequently, Georgia a nd the Russian Federation did not engage in
negotiations with respect to the latter’s compliance with its substantive obligations under CERD.
The Court has already observed the fact that Georgia did not claim that, prior to the seisin of
the Court, it used or attempted to use the other m ode of dispute resolution contained at Article 22,
namely the procedures expressly provided for in CERD. Considering the Court’s conclusion, at
paragraph 141, that under Article 22 of CERD, negotiations and the procedures expressly provided
for in CERD constitute preconditions to the exercise of its jurisdiction, and considering the factual
finding that neither of these two modes of disput e settlement was attempted by Georgia, the Court
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 second preliminary objection of the Russian Federation is therefore upheld.
IV. T HIRD 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 Respondent and that the case cannot proceed to the merits phase. - 16 -
Lapse of the Court’s Order of 15 October 2008 (para. 186)
The Court in its Order of 15October2008 indicated certain provisional measures. This
Order ceases to be operative upon the delivery of this Judgment. The Parties are under a duty to
comply with their obligations under CERD, of which they were reminded in that Order.
Operative clause (para. 187)
“For these reasons,
CTohuert,
(()) by twelve votes to four,
Rejects the first preliminary objection raised by the Russian Federation;
IN FAVOUR : President Owada; JudgeAs l-Khasawneh, Simma, Abraham, Keith,
Sepúlveda-Amor, Bennouna, CançadT orindade, Yusuf, Greenwood, Donoghue;
Judge ad hoc Gaja;
AGAINST : Vice-PresidentTomka; JudgesKoroma, 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 : President Owada; 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.
IN FAVOUR : Vice-President Tomka; JudgesKoroma, Al-Khasawneh, Keith, Sepúlveda-Amor,
Bennouna, Skotnikov, Yusuf, Greenwood, Xue;
AGAINST : President Owada; JudgesSimma, Abraham, Cançado Trindade, Donoghue;
Judge ad hoc Gaja.”
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.
PresidentOwada and JudgesSimma, Abraham, Donoghue and Judgeadhoc Gaja append a
joint dissenting opinion to the Judgment of the Court; President Owada appends a separate opinion
to the Judgment of the Court; Vice-President Tomka appends a declaration to the Judgment of the
Court; JudgesKoroma, Simma and Abraham appe nd separate opinions to the Judgment of the
Court; JudgSekotnikov appends a declar ation to the Judgment of the Court; - 17 -
Judge Cançado Trindade appends a dissenting opinion to the Judgment of the Court;
Judges Greenwood and Donoghue append separate opinions to the Judgment of the Court.
___________ Annex to Summary 2011/2
Joint dissenting opinion of PresidentOwada, JudgesSimma, Abraham and Donoghue and
Judge ad hoc Gaja
PresidentOwada, Judges Simma, Abraham and Donoghue and Judgeadhoc Gaja disagree
with the Court’s decision to uphold the Second Pr eliminary Objection of the Russian Federation
and have submitted a joint dissenting opinion. Th e Court concludes that it lacks jurisdiction under
Article22 of the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD) because, in the Court’s view, Georgia was required, but failed to, enter into
negotiations with Russia with respect to its cl aims under the CERD prio r to the filing of its
Application. The authors of the joint dissenting opinion disagree.
The joint dissenters question the Judgment’s conclusion that Article22 of the CERD sets
forth a requirement of prior negotiations and maintain that the Judgment fails to consider
arguments that could lead to a different interpretation of that clause. They also consider that even
if Article22 establishes preconditions to the seisin of the Court, those preconditions— prior
negotiations or recourse to the procedures set forth in the CERD— must be read as alternative,
rather than cumulative, requirements.
The authors of the joint dissenting opinion also take issue with the application of the
requirement of prior negotiations that the Judgment applies under Article22, which they consider
to be formalistic and at odds with the Court’s r ecent jurisprudence. They point out that, in the
Judgment, the Court concludes for the first time th at it lacks jurisdiction on the sole basis that the
Applicant has failed to satisfy a prior negotiation requirement — despite the fact that when Georgia
filed its Application, any attempt by Georgia to resolve the dispute through negotiations had no
chance of success.
Does Article 22 of the CERD set forth procedural “preconditions” that must be satisfied prior
to seisin of the Court?
The Judgment considers that the “ordinary m eaning” of Article 22 establishes preconditions
that must be fulfilled before the seisin of the C ourt. The Court concludes that its jurisprudence
supports this interpretation and that the travaux préparatoires “do not suggest a different
conclusion”. The dissenting judges believe that this interpretation is subject to serious question and
that, in certain regards, it departs from the Court’s most recent jurisprudence.
The joint dissenting opinion notes that although the Judgment states that the Court has
consulted the travaux préparatoires in order to “confirm” its interp retation of the text, in fact the
Court only goes so far as to concl ude that the travaux préparatoires “do not suggest a different
conclusion”. In addition, the joint dissenting opini on is critical of the Judgm ent’s approach to the
question of the “ordinary meaning” of Article 22, noting in particular the Court’s sole reliance on
its application of the principle of effectiveness as a means of interpreting the text.
The authors of the joint dissenting opinion then set forth several factors that cast doubt on
the Judgment’s conclusion that Article22 impo ses a precondition of negotiation. First, the
Judgment does not grapple with the literal meaning of the text, which, on its face, neither requires
nor suggests an attempt at settlement prior to the seisin of the Cour t. Second, the authors of the
joint dissenting opinion point out that there is no general requirement that a State pursue diplomatic
negotiations prior to seising the Court and that , as a consequence, a compromissory clause
departing from that general rule should be formulat ed in a sufficiently clear manner. They further
explain that, although at the time of the drafting of the CERD other formulations existed in treaties
in force and were considered by the CERD’s drafters, including compromissory clauses that set
forth express preconditions to the Court’s jurisd iction, the drafters of the CERD chose the
formulation least likely to be interpreted literally as requiring prior attempts to settle the dispute. - 2 -
The authors of the joint dissenting opinion are also critical of the Judgment’s treatment of the
Court’s prior jurisprudence. After citing two cases in which the Court previously interpreted
compromissory clauses with wording similar to Ar ticle22 of the CERD, the Judgment states that
“in each of the above-mentioned cases . . . the Court has interpreted the reference to negotiations as
imposing a precondition to the seisin”. According to the authors of the joint dissenting opinion,
this leaves the reader with the incorrect impression that the Court’s prior jurisprudence on the issue
is clear and consistent, when, in fact, it has not been.
In addition, while agreeing that the Court is not bound by the finding of prima facie
jurisdiction in its Order of 15October2008 on provisional measures in this case, according to
which Article 22 “does not, in its plain meaning, suggest that formal negotiations . . . or recourse to
the [CERD Committee] procedure . . . constitute preconditions to be fulfilled before the seisin of
the Court”, the dissenting judges note that this 2008 finding further demonstrates that there is no
well-settled practice of treating clauses referring to negotiations as imposing a precondition.
In sum, the authors of the joint dissenting opinion emphasize that all of the factors leading to
the Judgment’s conclusion that Article22 imposes preconditions are subject to serious flaws:
neither the literal analysis of the text, which is ambiguous, nor the Court’s prior jurisprudence,
which has fluctuated, nor an examination of the travaux préparatoires , which are inconclusive,
necessarily leads to the position adopted by the Court.
Moreover, the authors of the joint dissenti ng opinion reject the Judgment’s adoption of a
strict requirement that any preconditions must be fulfilled “before the seisin of the Court”, as
opposed to at any point up until the Court decides on its jurisdiction. The joint dissenters view this
approach as out of step with the Cour t’s recent decision in Croatiav. Serbia (in 2008), which
allowed a condition not met when the proceedings were instituted to be fulfilled after that date, but
before the Court ruled on its jurisdiction. Th e dissenters criticize the Judgment for discarding its
most recent jurisprudence — which would allow for a more flexible approach — without providing
the least justification.
Are the two means of settlement set forth in Article 22 alternative or cumulative?
Because the authors of the joint dissenting opinion also conclude (as summarized below) that
Georgia has satisfied any precondition of negotiation, they also evaluate whether the two means of
settlement referred to in Article22— nego tiations or the use of the CERD Committee
procedures— would be alternative or cumulative preconditions. For the authors of the joint
dissenting opinion, the decisive argument is drawn from logic: the text of Article 22 cannot impose
on a State cumulative procedures that serve no purpose other than delaying access to the Court.
Thus, pointing out that direct negotiations and the CERD Committee procedures are two different
ways to allow the parties to a dispute to state their views and attempt to come to an agreement
outside of the Court, the authors of the joint dissenting opinion conclude that the conditions in
Article 22 cannot have been intended to operate as cumulative requirements.
What would be the requirements of the precondition of negotiation?
Turning next to the substance of the requirement that the Parties engage in negotiations prior
to seising the Court, the authors of the joint dissenting opinion conclude that the Judgment has
applied the requirement in an overly formalistic and unrealistic way. The dissenting judges take
the view that there is no —and there can be no —general criterion for determining at what point a
State will be regarded as having fulfilled an oblig ation to negotiate. Instead, in their view, the
Court must make that assessment on a case-by-case basis and should approach the issue not in
formal or procedural terms, but as a matter of substance. The dissenting judges note that the
purpose of negotiations is not to erect unnecessary pr ocedural barriers that are likely to delay or - 3 -
impede the applicant’s access to international justice, but to allow the Court to ensure, before
turning to the merits, that a sufficient effort was made to settle the dispute by the requisite
non-judicial means. If the Court finds that there is no reasonable prospect that the dispute can be
settled by such means, the Court should accept its jurisdiction. As the joint dissenting opinion
points out, this has been the Court’s approach to the question of negotiations in its past cases.
Was there a sufficient effort to resolve the dispute by negotiations?
Finally, assuming that Article22 does impose a precondition of negotiation, the authors of
the joint dissenting opinion address the question wh ether Georgia has satisfied such a precondition
in this case. They answer in the affirmative and contend that the Judgment finds otherwise by
adopting an overly formalistic a nd unrealistic approach to a requ irement of negotiations. They
criticize the fact that the Judgment considers onl y the period of 9-12August2008, which is a
consequence of the Judgment’s conclusion that there was no dispute before that date.
In light of the circumstances of this case, the dissenting judges find completely unrealistic
the Judgment’s conclusion that Georgia has not exhausted the possibilities of a negotiated
settlement with Russia. In the dissenters’ view, no one could seriously believe that, as of the date
of the filing of the Application, there remained a reasonable prospect of settling the dispute that
Georgia submitted to the Court. The authors of the joint dissenting opinion discuss various
documents and statements demonstrating that, over the years, Georgia reproached Russia for being
responsible, by action or omission, for ethnic cleansing committed, according to Georgia, against
ethnic Georgians in Abkhazia and South Ossetia. The authors of the joint dissenting opinion take
the view that one cannot expect the Applicant to make a formal offer to negotiate under such
circumstances; rather, it is sufficient that Georgia has clearly made known the existence and nature
of its claims and that Russia has made known unequivocally that it categorically rejects the
complaints as formulated (including, for that ma tter, that a dispute even exists between it and
Georgia). The authors of the joint dissenting opinion conclude that on the date of the filing of the
Application, it was clearly established that there was no reasonable prospect of a negotiated
settlement and, therefore, that any condition imposed by Article 22 had been satisfied.
For these reasons, the authors of the joint dissenting opinion conclude that the Court should
have rejected the Second Preliminary Objection of the Russian Federation and found that it has
jurisdiction to proceed to the merits in this case.
Separate opinion of President Owada
In a separate opinion, President OWADA explains that although he concurs with the
Judgment’s conclusion to reject Russia’s First Pr eliminary Objection, he disagrees with certain
aspects of the Judgment’s treatment of the question whether there is a “dispute” between Georgia
and Russia relating to the interpretation or applica tion of the Convention on the Elimination of All
Forms of Racial Discrimination (CERD). Specifically, President Owada disagrees with the
Judgment’s introduction of a higher thres hold of the existence of positive opposition by the
opposing party, going beyond the established jurisp rudence of the Court on the existence of a
dispute. He also takes issue with the Judgment’s treatment of the evidence and, in particular, the
Judgment’s suggestion that the Applicant need to have given the Respondent prior notice of its
claims. The President suggests that the Court could not have come to its stated conclusion on
jurisdiction without going into the merits of the Parties’ contentions and that, if that were the case,
the Court should have declared that Russia’s First Preliminary Objection does not possess an
exclusively preliminary character under Article 79 of the Rules of Court.
President Owada begins by noting that, at the preliminary jurisdiction phase of the
proceedings, the Court does not have to, and i ndeed cannot, pass judgment on whether Georgia’s - 4 -
claims against Russia on the merits were well-founded. The Court need only to determine whether
a dispute existed between the Parties; whether that dispute relates to the interpretation or
application of the CERD; and whether that dispute existed at the time Georgia filed its
Application.
On the issue of whether a dispute existed betw een the Parties, the President considers that
the Judgment applies a stringent requirement unsupported in the Court’s jurisprudence as
established by the Mavrommatis Judgment of the Permanent Court of International Justice and by
the South West Africa cases of the International Court of Justice.
Next, President Owada takes issue with several aspects of the Judgment’s approach to the
question whether a dispute existed between the Parties relating to the interpretation or application
of the CERD. In his view the Judgment, which concl udes that a dispute under the CERD existed
between the Parties only as from 9August2008, is not correct in light of the evidence.
President Owada notes that, while it is not necessary to pinpoint a precise date on which the dispute
emerged, the Judgment’s conclusion that a di spute under the CERD did not emerge until
9August2008 is too restrictive and has significant ramifications for the Judgment’s treatment of
the evidence relating to the Second Preliminary Objection. The President points out that Georgia
time and again made abundantly clear to Russia that its concerns related to “ethnic cleansing” and
the “return of refugees” — issues clearly falling within the subject-matter of the CERD.
President Owada also criticizes the methodology employed by the Judgment in its evaluation
of the evidence in the case. He observes that the Judgment dissects each document in evidence “on
a piecemeal basis” in an attempt to determin e whether each piece of evidence— in itself—
contains a claim by Georgia under CERD and a positive act of opposition to that claim by Russia.
Lastly, the President notes that the contention of Georgia is that Russia is responsible for acts
or omissions that would amount to violations of obligations under the CERD, whereas Russia has
categorically rejected these claims, on the ground that the acts or omissions complained of are
primarily attributable to the separatist authoriti es in Abkhazia and South Ossetia and have nothing
to do with Russia. In the President’s view, “the se two opposing perceptions” of the dispute reflect
a difference between the Parties as to the essential nature of the dispute. Without going into a
substantive examination of the merits of these opposing contentions, it c ould be said that this
amounts to a “conflict of legal views” and a “dis agreement on a point of law” relating to the
interpretation or application of the CERD. Th e President reiterates that the Court cannot and
should not, at this preliminary stage of jurisdiction, evaluate the arguments of the Parties relating to
the merits without hearing the full exposition of the Parties’ positions. If the Court were of the
view that it could not decide the issue of juri sdiction without examining some of these aspects
relating to the merits of the case, it should have declared, pursuant to Article 79, paragraph 9, of the
Rules of Court, that Russia’s First Preliminary Objection “does not possess, in the circumstances of
the case, an exclusively preliminary character”, thus joining in effect this objection to its
consideration of the case on the merits.
Declaration of Vice-President Tomka
The Vice-President has voted in favour of th e majority’s overall conclusion that the Court
lacks jurisdiction over Georgia’s Application. He also agrees with the majo rity’s conclusions that
neither precondition of Article22 has been met a nd that no legal dispute arose between Georgia
and the Russian Federation in the period between 1999 and July 2008.
However, the Vice-President does not share the majority’s view on the evidence it finds in
support of the existence of a dispute arising in August2008. The majority identifies statements
made by Georgia’s President and the Russian Fe deration’s Foreign Minister in separate press
conferences and statements made by representativ es of both States during an emotionally-charged - 5 -
Security Council meeting. In re lying on these statements, the majo rity has satisfied itself with a
rather formalistic juxtaposition of the words used by the representatives of the Parties during the
short period of open military hostilities between the tw o countries. In this context, references to
“ethnic cleansing” should be considered merely a f eature of war-time rhetoric. Georgia presented
no claim to the Russian Federation with regard to its obligations under CERD, and neither held nor
attempted to hold negotiations or consultations. This would have assisted in properly articulating
the dispute. Nonetheless, in finding a dispute to have arisen in August 2008, the Court has lowered
the standard in the determination of the existence of a dispute.
Separate opinion of Judge Koroma
In his separate opinion, Judge Koroma states that he has voted in favour of the second
dispositive paragraph of the Judgment in view of the fact that the Court must ensure that the terms
and conditions set out in the compromissory clause of the treaty invoked have been complied with
before it can exercise jurisdiction. Judge Koroma adds that there must also exist a link between a
dispute and the treaty involved. Given the importance of the Convention on the Elimination of All
Forms of Racial Discrimination (“CERD”), howev er, Judge Koroma considered it necessary to
explain his vote.
Judge Koroma notes CERD’s continuing importance in the fight against racial discrimination
and racial intolerance. Accordingly, he states that any alleged breach by a State party of its legal
obligations under CERD deserves careful and objec tive scrutiny by the Court. JudgeKoroma
emphasizes, however, that the Court cannot undert ake any such investigation if the Application
seising the Court does not meet the requirements of CERD’s jurisdictional clause, namely, that the
dispute must be “with respect to the interpretation or application” of CERD.
Judge Koroma notes that, in considering Russi a’s second preliminary objection, the Court
applied the canons of interpretation embodied in Article 31 of the Vienna Convention on the Law
of Treaties. He states that, under Article 31, the ordinary meaning of the treaty is the starting-point.
He adds that if the ordinary meaning is unclear or would lead to an absurd result, the object and
purpose of the treaty can then be considered to determine precisely what was intended. Thus,
JudgeKoroma emphasizes that the object and purpos e of a treaty cannot take precedence over its
plain meaning.
Judge Koroma asserts that CERD’s compro missory clause establishes clear conditions or
limitations on the right of a State party to refer a dispute with another State to the Court. First, in
his view, there must be a “dispute” between the parties, meaning that, at the very least, one party
must have expressed a position and the other part y must have disagreed with that position or
expressed a different position. Second, a link must exist between the substantive provisions of the
treaty invoked and the dispute. In this case, Judge Koroma emphasizes that the dispute must be a
bona fide dispute between the parties about the interpretation or application of CERD. He points
out that this limitation is vital, because without it, States could use the compromissory clause as a
vehicle for forcing an unrelated dispute with a nother State before the Court. Other types of
disputes, in his view, including those relating to te rritorial integrity, armed conflict, etc., do not fall
under CERD’s compromissory clause.
Judge Koroma adds that CERD’s compromissory clause imposes the additional requirement
that parties attempt to resolve the dispute by negotiation or by procedures set out in the
Convention. He emphasizes that the plain meaning of the compromissory clause does not permit
any other conclusion. Judge Koroma states that, according to the principle of effectiveness, a treaty
or statute must be read in a manner that gives effect to its provisions in accordance with the
intention of the parties. He believes that, by inserting the phrase “which is not settled by
negotiation or by the procedures expressly pr ovided for in this Convention” into the - 6 -
compromissory clause, the drafters clearly intended to place a precondition on the power of State
parties to refer disputes to the Court.
Judge Koroma finds that the object and purpose of the compromissory clause confirm and
support the clause’s ordinary meaning. He notes that during the negotiation of the Convention,
Ghana, Mauritania and the Philippines introdu ced an amendment adding the phrase “or by the
procedures expressly provided for in this Conve ntion” to the language of the compromissory
clause. JudgeKoroma notes that, in explaining their amendment, the representatives of those
States made clear that they believed the amendment required parties to use the dispute resolution
mechanism in the Convention before resorting to the Court. He adds that the amendment was
adopted unanimously. He accordingly is of the opinion that the drafters of the compromissory
clause viewed its object and purpose to be to est ablish preconditions that must be fulfilled before
the Court could be seised by a party to CERD. Judge Koroma affirms that the Judgment has
correctly reflected this interpretation.
Judge Koroma concludes by stating that his vote in favour of the second paragraph of the
dispositif should be seen as in conformity with the meaning of the jurisdictional clause invoked.
He emphasizes that his vote in no way diminishes the importance of CERD as an important legal
instrument in combating racial discrimination and racial hatred.
Separate opinion of Judge Simma
Judge Simma partly concurs in the Judgment’s rejection of the first preliminary objection of
the Russian Federation. However, he disagrees with the Judgment’s conclusion that the dispute
between Georgia and the Russian Federation only arose between 9 and 12 August 2008. Based on
this determination of the relevant time span , and with Russia’s second preliminary objection in
mind, the Court wholly ignores all pre-August2008 documentary evidence, limits its analysis to
only four pieces of such evidence stemming from the period 9 to 12 August 2008, thus, manages to
find no traces of negotiations between the Parties ⎯ and arrives at the result that the preconditions
for its jurisdiction in the case according to Article 22 of CERD are not fulfilled. This is a matter on
which Judge Simma has expressed his disagreement by participating in the joint dissenting opinion,
together with his colleagues Owada, Abraham, Donoghue and Gaja. The present separate opinion
is devoted to the problematic ways of the Court with Russia’s First Preliminary Objection, which
Judge Simma then sets out to expose in detail.
JudgeSimma finds that the relevant dispute had been under way long before the armed
hostilities between Georgia and the Russian Federation broke out in August 2008. In his view, the
dispute commenced as early as 1992 on subject-matte rs that already then could have fallen under
CERD, and continued after 1999 when both Georgia and the Russian Federation became parties to
the Convention. Had the bulk of pre-August 2008 documentary evidence on the existence of a
dispute and Georgian attempts at settling it been admitted, the Court could not have accepted the
Russian Federation’s Second Preliminary Objection.
JudgeSimma then analyses the Judgment’s method of dismissing all pre-August2008
documentary evidence for lack of “legal significance”. He identifies five alleged faults or defects
that the Judgment adduces and invokes, singly or collectively, for rejecting each piece of
documentary evidence dated before August 2008. He shows that the Judgment dismissed evidence
on the basis of alleged defects relating to formal designation, authorship, inaction, attribution, and
matters of notice. According to JudgeSimma , in this process the Judgment failed to accept
possible differences in the degree of probative value ⎯ whether best, primary, direct, secondary,
indirect, corroborative, or supplementary ⎯ that have long been acknowledged in the settled
jurisprudence of the Court on the determination of the weight of evidence. - 7 -
Judge Simma then demonstrates the incompatibility of each of these alleged defects with the
rules of international law and the Court’s settled practices on the assessment of evidence. First, he
shows that alleged formal defects ⎯ such as missing literal designations in the documentary
evidence of phrases such as “racial discrimination” , or “ethnic cleansing”, explicit allusions to the
Russian Federation’s specific CERD obligations, or the circulation of documents in the United
Nations under agenda item headings other than “racial discrimination” ⎯ do not render
documentary evidence legally insignificant. Fo r purposes of determining the existence of a
dispute, it is sufficient that the documentary ev idence refer to CERD-related subject-matter (such
as alleged support, facilitation, or toleration by Russian peacekeepers of ethnic cleansing being
committed against Georgian civilians within thei r areas of responsibility; alleged Russian conduct
in relation to the right of return of refugees and ID Ps to Georgian territory; and the alleged failure
of Russian peacekeepers to prevent human rights violations being committed against Georgian
civilians).
Secondly, JudgeSimma critically assesses the J udgment’s invocation of alleged authorship
defects ⎯ such as the lack of authorship, endorsement, or approval by the Georgian Executive of
specific documentary evidence, in particular, resolutions of the Parliament of Georgia ⎯ to justify
discarding parliamentary material. In its earlier case law the Court never hesitated to admit
national legislation as evidence. In any event, the resolutions, decrees, and statements of the
Parliament of Georgia were officially transmitted to the Security Council or the General Assembly
by the Permanent Representative of Georgia to the United Nations ⎯ an official who cannot be
assumed to have acted ultra vires or without the knowledge of the Georgian Executive.
Thirdly, Judge Simma scrutinizes the Judgment’s claim of alleged defects of inaction, that is,
instances where the Judgment rejects documentary evidence such as parliamentary resolutions,
because their contents do not indicate that the Georgian Executive acted upon or followed up
complaints expressed in these resolutions. This mode of rejection of documentary evidence
appears particularly improper at the jurisdictiona l stage because in so doing the Court ends up
reaching directly into the merits of the disput e. More importantly, the actual texts of the
documentary evidence and the circumstances surrounding it do not bear out the Judgment’s
speculations that the Georgian Executive could have called for the outright withdrawal of Russian
troops from Georgian territory.
Fourthly, Judge Simma refutes the Judgment’s fi ndings of alleged defects due to the failure
of documentary evidence to categorically attribute vi olations to the Russian Federation. In Part B
of his opinion, he shows that the documentary evidence clearly establishes the attributability of the
conduct of Russian peacekeepers to the Russian Federation. Lastly, JudgeSimma rejects the
Judgment’s dismissal of documentary evidence due to alleged defects relating to matters of notice,
such as lack of proof that Russia received, could have received, or had the opportunity to receive or
be informed of the allegations contained in certain documentary evidence. Judge Simma notes that
the Court has hitherto never imposed a requirement of actual notice of complaints by an applicant
State against a respondent State in order to determine the existence of a dispute.
According to JudgeSimma, the Court’s am orphous usage of the concept of “legal
significance” in the present Judgment represents a distinct departure from the Court’s settled
practice of admitting differentiations in the ass essment of the probative weight of evidence,
demonstrated in Armed Activities on the Territory of the Congo , the Genocide case, Corfu
Channel, Frontier Dispute, Nicaragua , and Tehran Hostages . JudgeSimma fears that the Court
could in future cases deny probative weight to ev idence for similarly flawed reasons of formality,
authorship, inaction, attribution, and notice. He cautions that this problematic methodology could
inhibit States in their selection and control of th e presentation of evidence to the Court. More
importantly, JudgeSimma finds that in the present case the Court did not discharge its judicial
function in a thorough manner. Rather, the present Judgment engages in unwarranted factual
inferences instead of making full use of its fact-finding powers under Articles49 to 51 of the
Statute in order to avoid having to resort to such inferences in the first place. - 8 -
PartB of JudgeSimma’s opinion then proceeds to set out the impressive amount of
documentary evidence in the record that establishes the existence of a dispute well before
August 2008. In categorizing th ese texts, Judge Simma distinguish es between bilateral exchanges
between Georgia and the Russian Federation; Ge orgian statements made before international
organizations of which the Russian Federation is a member; and public statements of Georgia on
other occasions.
Finally, JudgeSimma emphasizes that his separ ate opinion does not intend to contradict in
any way the joint dissenting opinion that he co-authored. The intention he pursues in his separate
opinion is to give an account of the facts whic h not only allows a more informed conclusion on
Russia’s First Preliminary Objection, but also ex tends into the realm of the Second Preliminary
Objection by broadening the factual basis for th e joint dissent. JudgeSimma concludes that the
way in which the present Judgment handled the issues of relevance and legal significance of facts is
unacceptable ⎯ allowing serious deficiencies to serve as blinders, as it were, in the examination of
facts.
Separate opinion of Judge Abraham
In addition to being one of the co-signatories of the joint dissenting opinion which focuses
on the second preliminary objection raised by the Russian Federation, Judge Abraham has set out
in a separate opinion the reasons why, despite votin g in favour of the decision reached on the first
preliminary objection raised by Russia, he does not agree with the reasoning which led the Court to
conclude that a dispute between the Parties arose in August 2008.
Judge Abraham believes that the Court’s Judgment is open to criticism, in particular because
its concept of a “dispute” is too far removed from that which emerges from a study of the Court’s
earlier jurisprudence, and which he considers to be more accurate.
Judge Abraham contends that an examination of the Court’s jurisprudence reveals three
characteristic features of the approach taken by the Court when it has to respond to an objection
based on the absence of a dispute between the Par ties. Firstly, Judge Abraham points out that
identifying the dispute is a purely realistic and pr actical task: the Court does not need to establish
whether formal exchanges took place between the Par ties before the institution of the proceedings;
all that matters is that it should be persuade d that the Parties hold conflicting views on the
questions which form the object of the Applica tion, and that those questions fall under the
compromissory clause rationemateriae . Secondly, Judge Abraham notes that when determining
the existence of a dispute between the Parties, the Court assesses the situation at the time of its
decision and can therefore take account of the Part ies’ arguments on the merits of the case during
the judicial process. Finally, Judge Abraham recal ls that, except in certain specific circumstances,
the Court does not determine when the dispute arose; it is sufficient for the dispute to be
established when the Court is seised (which can be demonstrated by the subsequent facts) and for it
still to be ongoing when the Court considers its jurisdiction.
In Judge Abraham’s view, the Court’s Judgmen t moves away from the concept of a dispute
previously used in its jurisprudence in two resp ects. First, the Judgment needlessly endeavours to
determine exactly when the dispute arose between the Parties, by conducting a long and drawn-out
study of the documents produced by them. More over, the Judgment breaks with the Court’s past
jurisprudence by adopting a formalistic approach in identifying the dispute; that approach appears
to require the Applicant, before bringing legal proceedings, to have transmitted a complaint to the
Respondent, stating why it believes the latter’s actions to be unlawful, and the Respondent to have
rejected such a complaint. In Judge Abraham’s eyes, this reflects a confusion between the question
of the existence of the dispute and that of prior negotiation. - 9 -
In conclusion, Judge Abraham believes that ther e is clearly a dispute in this case, and that
that dispute undoubtedly concerns the interpretation and application of CERD, since it can be more
than plausibly argued that ethnic cleansing is one of the activities prohibited by that Convention,
and that the States parties to it are under an oblig ation not only to abstain from such activities, but
also to do their best to put an end to them. Finally, Judge Abraham points out that, were it
necessary to establish when the dispute arose— an exercise which he considers to be entirely
without legal purpose — it could perhaps be dated back to 2004, and certainly to 2006.
Declaration of Judge Skotnikov
Judge Skotnikov supports the Court’s overa ll conclusion that it has no jurisdiction to
entertain the Application filed by Georgia. Howe ver, he is unable to concur with the Court’s
findings that a dispute with respect to the interp retation and application of CERD between Georgia
and Russia emerged on 9 August 2008 in the course of the armed conflict which broke out on the
night of 7 to 8 August 2008.
As the Court has stated on many occasions, “[o]ne situation may contain disputes which
relate to more than one body of law and which are subject to different settlement procedures”. The
Court observes throughout the Judgment that in the situation prevailing at the outbreak of hostilities
on 7/8 August 2008 there were disputes involving a range of different matters, but not the question
of interpreting or applying CERD.
The Court is under a duty to determine whether or not the August2008 dispute was about
compliance with CERD, rather than with the provi sions of the United Nations Charter relating to
the non-use of force or with the rules of international humanitarian law. This task is admittedly not
an easy one. Indeed, some acts prohibited by inte rnational humanitarian law may also be capable
of contravening rights provided by CERD. In or der to determine the existence of a dispute under
CERD, the Court must nevertheless satisfy itself that an alleged dispute relates to establishing a
“discrimination, exclusion, restriction or prefer ence based on race, colour, descent or national or
ethnical origin” (Art. 1, CERD).
Given this difficulty, it may not always be possible for the Court to determine at the
preliminary stage of the proceedings whether a CERD dispute exists in a situation of armed
conflict. However, the Court always has the op tion of declaring that the objection as to the
existence of a dispute does not possess, in the circumstances of the case, an exclusively preliminary
character. Had the Court resorted to that option in the present case, it would have found itself on
much safer ground.
The Court begins its consideration of that period in August2008 by quoting the Report of
the Independent International Fact-Finding Mission on the Conflict in Georgia, established by the
Council of the European Union, to the effect that on the night of 7 to 8 August:
“a sustained Georgian artillery attack struck the town of Tskhinvali. Other
movements of the Georgian armed forces targeting Tskhinvali and the surrounding
areas were under way, and soon the fighting involved Russian, SouthOssetian and
Abkhaz military units and armed elements. It did not take long, however, before the
Georgian advance into SouthOssetia was stopped. In a counter-movement, Russian
armed forces, covered by air strikes and by elements of its Black Sea fleet, penetrated
deep into Georgia, cutting across the count ry’s main east-west road, reaching the port
of Poti and stopping short of Georgia’s capital city, Tbilisi. The confrontation
developed into a combined inter-state and intra-state conflict, opposing Georgian and
Russian forces at one level of confrontation as well as SouthOssetians together with
Abkhas fighters and the Georgians at another.” (Report, Vol.1, para.2 [PORF,
Ann. 75]; see Judgment, paragraph 106) - 10 -
It would have been useful to consider at least two other observations in the Mission’s Report:
“There is the question of whether the use of force by Georgia in South Ossetia,
beginning with the shelling of Tskhinvali during the night of 7/8August2008, was
justifiable under international law. It was not.” (Vol. I, para. 19.)
“At least as far as the initial phase of the conflict is concerned, an additional
legal question is whether the Georgian u se of force against Russian peacekeeping
forces on Georgian territory, i.e. in SouthO ssetia, might have been justified. Again
the answer is negative . . . There is . . . no evidence to support any claims that Russian
peacekeeping units in South Ossetia were in flagrant breach of their obligations under
relevant international agreements such as the Sochi Agreement and thus may have
forfeited their international legal status. Consequently, the use of force by Georgia
against Russian peacekeeping forces in Tskhi nvali in the night of 7/8August2008
was contrary to international law.” (Vol. I, para. 20.)
The factual context emerging from the Report is quite clear: it appears highly unlikely, to
say the least, that the Russian response to Georgia’s attack was in contravention of CERD.
The Court, in addressing the exchange of accusations by the Parties, should have assessed
them within the context of the armed conflict in progress when those accusations were made.
Whenever the Court deals with a situation of armed conflict a nd the issue of compliance with
CERD, it has to distinguish between wartime propa ganda, on the one hand, and statements which
may indeed point to the emergence and crystallization of a dispute under CERD, on the other. This
may not be easy, but the Court is perceptive enough to handle this task. It should have concluded
that the claims made by Georgia between 10 a nd 12August2008 belong in the category of war
rhetoric and thus are of no probative value on the issue of the existence of a dispute under CERD.
Judge Skotnikov concludes that Georgia made no credible claim which could have been
positively opposed by the RussianFederation within the meaning of the Court’s settled
jurisprudence. The exchange of accusations by the Parties, given the context of the armed conflict,
simply cannot suffice in determining the existe nce of a legal dispute with respect to the
interpretation or application of CERD.
Dissenting opinion of Judge Cançado Trindade
1. In his Dissenting Opinion, composed of 13 parts, Judge Cançado Trindade presents the
foundations of his personal position on the matters dealt with in the present Judgment of the Court.
He dissents in respect of the whole of the C ourt’s reasoning, and its conclusions on the second
preliminary objection and on jurisdiction, as well as its treatment of issues of substance and
procedure raised before the Court. He begins his Dissenting Opinion by identifying (part I) the
wider framework of the settlement of the dispute at issue, ineluctably linked to the imperative of
the realization of justice under a United Nations human rights treaty of the historical importance of
the International Convention on the Elimination of All Forms of Racial Discrimination (CERD
Convention).
2. In his understanding, compromissory cl auses such as the one of the CERD Convention
(Article 22) can only be properly considered in th e ambit of the endeavours to achieve compulsory
jurisdiction of the Court. To that end, Judge Cançado Trindade undertakes an examination (part II)
of the genesis of the Court’s co mpulsory jurisdiction, in the wo rk on the PCIJ Statute of the
Advisory Committee of Jurists (in 1920), which supported compulsory jurisdiction. That position
of the Committee of Jurists found an obstacle in the distinct posture taken by the political organs of
the League of Nations. A compromise was reached in the debates of the Assembly of the League of - 11 -
Nations and subsidiary organs (a lso in 1920), resulting in the amended jurisdictional clause (the
optional clause), and the following co-existence of the optional clause and the compromissory clauses
of various kinds as basis for the exercise ocompulsory jurisdiction by the Hague Court.
3. Judge Cançado Trindade then considers the following debates on the ICJ Statute of the
United Nations Conference on International Organization and subsidiary organs (in 1945). Having
examined the legislative history, he proceeds to a critical review of the practice concerning the
optional clause of compulsory jurisdiction of the Hague Court (PCIJ and ICJ).
Judge Cançado Trindade regrets the importance that a distorted practice came to ascribe to individual
State consent, placing it even above the imperatives of the realization of justice at international level
(part III), and making abstraction of the old ideal of automatism of compulsory jurisdiction of the
Hague Court (part IV).
4. The ensuing State practice disclosed the dissatisfaction of international legal doctrine with
the States’ reliance on their own terms of consent in approaching the optional clause, accompanied
by greater hope that compromissory clauses would, in turn, contribute more effectively to the
realization of international justice. To Judge Cançado Trindade, neither the optional clause, nor
compromissory clauses, can be properly consid ered outside the framework of compulsory
jurisdiction; this latter is what is aimed at.
5. He recalls that, from the fifties to the eigh ties, international legal doctrine endeavoured to
overcome the vicissitudes of the “will” of States and to secure broader acceptance of the Court’s
compulsory jurisdiction, on the basis of comp romissory clauses. Subsequently (from the late
eighties onwards), a more lucid trend of international legal doctrine continued to pursue the same
old ideal, relating the compromissory clauses at issue to the nature and substance of the
corresponding treaties. Such legal thinking benefitted from the gradual accumulation of experience
in the interpretation and application of human rights treaties, such as the CERD Convention in the
present case.
6. Judge Cançado Trindade proceeds (part V) to the consideration of the relationship
between the optional clause/compromissory clauses and the nature and substance of the
corresponding treaties wherein they are enshrined. He sustains that human rights treaties (such as the
CERD Convention) are ineluctably victim-oriented , and that the acknowledgement of the special
nature of those treaties has much contributed to their hermeneutics, which has led to their
implementation to the ultimate benefit of human beings, in need of protection.
7. Judge Cançado Trindade argues that despite the undeniable advances attained by the ideal
of compulsory jurisdiction in the domain of the International Law of Human Rights, the picture
appears somewhat distinct in the sphere of pu rely inter-State relations, wherein compulsory
jurisdiction has made a rather modest progress in recent decades. Contemporary international law
itself has slowly, but gradually evolved, at least putting limits to the manifestations of a State
voluntarism, which revealed itself as belonging to another era.
8. This is a point which cannot pass unnoticed in the present case, ⎯ he adds, ⎯ as it
concerns the Application of the International Convention on the Elimination of All Forms of Racial
Discrimination, and, in particular, the compromissory clause enshrined into a U.N. human rights
treaty. Judge Cançado Trindade then addresses th e methodology of interpretation of human rights
treaties. - 12 -
9. Judge Cançado Trindade advances the view that the methodology of interpretation of
human rights treaties (as from the rules of treaty interpretation enunciated in Articles 31-33 of the
two Vienna Conventions on the Law of Treaties, of 1969 and 1986), first, places greater weight,
understandably and necessarily, on the realization of their object and purpose, so as to secure
protection to human beings, the ostensibly weaker party; and secondly, it encompasses, in his
understanding, all the provisions of those treati es, taken as a whole, comprising not only the
substantive ones (on the protected rights) but also the procedural ones , those that regulate the
mechanisms of international protection , including the compromissory clauses conferring
jurisdiction upon international human rights tribunals.
10. The hermeneutics of human rights treaties, faithful to the general rule of interpretation
bona fides of treaties (Article 31(1) of the two Vie nna Conventions on the Law of Treaties, of
1969 and 1986), bears in mind the three component elements of the text in the current meaning, the
context, and the object and purpose of the treaty at issue, as well as the nature of the treaty wherein
that clause (optional or compromissory) for compul sory jurisdiction appears. In the interpretation
of human rights treaties, ⎯ he proceeds, ⎯ there is a primacy of considerations of ordre public , of
the collective guarantee exercised by all the St ates Parties, of the accomplishment of a common
goal, superior to the individual interests of each Contracting Party.
11. One can hardly make abstraction of the nature and substance of a treaty when
considering the optional clause, or else the compro missory clause, enshrined therein. The advent
of human rights treaties ⎯ Judge Cançado Trindade adds ⎯ thus contributed to enrich the
contemporary jus gentium , in enlarging its aptitude to regulate relations not only at inter-State
level, but also at intra -State level. In the present case concerning the Application of the
International Convention on the Elimination of All Forms of Racial Discrimination , the punctum
pruriens judicii is the proper understanding of the compromi ssory clause (Article 22) of the CERD
Convention.
12. Judge Cançado Trindade points out that, in the course of the proceedings in the present
case concerning the Application of the International Convention on the Elimination of All Forms of
Racial Discrimination, the two contending Parties, Georgia and the Russian Federation, in their
responses to a question he deemed it fit to put to them in the public sitting of 17.09.2010, have duly
taken into account the nature of the human right s treaty at issue, the CERD Convention (though
deriving distinct consequences from their respective arguments); only the Court has not taken into
account this important point.
13. Attention is then drawn to the principle ut res magis valeat quam pereat (part VI), widely
supported by case-law. Underlying the general rule of treaty interpretation is the aforementioned
principle ut res magis valeat quam pereat (the so-called effet utile ), whereby States Parties to
human rights treaties ought to secure to the conventional provisions the appropriate effects at the
level of their respective domestic lega l orders. This principle applies ⎯ in his view ⎯ not only in
relation to substantive norms of those treaties, but also in relation to procedural norms, such as the
one pertaining to the acceptance of the compulsory jurisdiction in contentious matters of the
international judicial organs of protection.
14. Accordingly, considerations of a superior order (international ordre public) have primacy
over State voluntarism. In part VII of his Dissenting Opinion, Judge Cançado Trindade proceeds to
an examination of the elements for the proper in terpretation and application of the compromissory
clause (Article22) of the CERD Convention (e ncompassing its ordinary meaning, its travaux
préparatoires, and the previous pronouncement of the Court itself on it). On the basis of his - 13 -
analysis, he concludes that the Court’s view in the present case that Article 22 of the CERD
Convention establishes “preconditions” to be fulfilled by a State Party before it may have recourse
to this Court, thus rendering access to the ICJ particularly difficult, in hi s understanding finds no
support in the Court’s own jurisprudence constante , nor in the legislative history of the CERD
Convention, and is in conflict with the approach recently espoused by the Court itself in its Order
of 15.10.2008 in the present case.
15. He argues, as to this last point, that th e Court could not have d econstructed its own res
interpretata: positions as to the law (distinct from assessment of evidence) already upheld by the
Court cannot, in his view, be simply changed at the Court’s free will, shortly afterwards, to the
diametrically opposite direction. This would generate a sense of juridical insecurity, and would
clash with a basic principle of international procedur al law, deeply rooted in legal thinking: venire
contra factum/dictum proprium non valet.
16. Judge Cançado Trindade further argues that , in the present case, due weight should have
been given to the consideration, in the preamble of the CERD Convention (para. 1), that all U.N.
Member States have pledged themselves to take act ion (in co-operation with the Organization) for
the achievement of one of the purposes of the Un ited Nations, which is “to promote and encourage
universal respect for and observance of human rights” for all, without distinction of any kind,
keeping in mind the proclamation, echoed in all quarters of the world, by the 1948 Universal
Declaration of Human Rights (in one of the rare moments or glimpses of lucidity of the
XXth century), that all human beings are born free and equal in dignity and rights, being endowed
with reason and conscience (Article 1).
17. Part VIII of his Dissenting Opinion is devot ed to an examination of the case-law of the
Hague Court (PCIJ and ICJ), as to the verification of prior attempts or efforts of negotiation, in the
process of judicial settlement of disputes submitte d to its cognizance. Judge Cançado Trindade
finds that the jurisprudence constante of the Court itself has never ascribed to this factual element
the character of a “precondition” that would have to be fully satisfied, for the exercise of its
jurisdiction. Both the PCIJ and the ICJ have been quite clear in holding that an attempt of
negotiation is sufficient, there being no manda tory “precondition” at all of resolutory negotiations
for either of them to exercise jurisdiction in a case they had been seised of.
18. Quite on the contrary, ⎯ he proceeds, ⎯ compromissory clauses have been a relevant
source of the Court’s jurisdiction, and even more cogently so under some human rights treaties
containing them (cf. infra), and pointing towards the goal of the realization of justice (part IX). He
regrets this change of approach in the present case, setting a very high threshold (as to the
requirement of prior negotiations) for the exercise of jurisdiction on the basis of that human rights
treaty, the CERD Convention, and losing sight of the nature of this important U.N. human rights
treaty.
19. Judge Cançado Trindade argues that one cannot lose sight of the rights and values that
are at stake. Reliance on formalistic formulas, focus on State “interests” or intentions, or its “will”,
or other related notions, or State strategies of negotiations, should not make one lose sight of the
fact that claimants of justice, and their beneficiaries, are, ultimately, human beings, ⎯ as disclosed
by the present case brought to the cognizance of the Court. In his view, the Court cannot overlook
the rationale of human rights treaties; a mechanical and reiterated search for State consent, placed
above the fundamental values underlying those treaties, will lead it nowhere. - 14 -
20. This brings him to part X of his Dissenting Opinion, wherein he sustains that under those
treaties, peaceful settlement is coupled with the rea lization of justice, and this latter can hardly be
achieved in a case, such as the present one, w ithout turning attention to the sufferings and needs of
protection of the population. These latter assume, in his view, a central position in the
consideration of the present case concerning the Application of the International Convention on the
Elimination of All Forms of Racial Discrimination . Most regrettably, this was not the outlook of
the Court in the present case.
21. He stresses that the realization of jus tice under a human rights treaty (such as the CERD
Convention), in a case of numerous victimized persons like the present one, can only be achieved
taking due account and valuing the sufferings and needs of protection of the population. Instead of
being particularly attentive to the sufferings and needs of protection of the population, on the basis
of an assessment of the whole evidence produced before it by the contending Parties themselves,
the Court unfortunately pursued an essentially inter-State, and mostly bilateral, outlook, centred on
the (diplomatic) relations between the two States concerned.
22. The present Judgment contains only in passim references to the sufferings endured by the
victimized population, despite the fact that there are documents, submitted to the Court by the two
contending Parties themselves, which are clearly illustrative of the human aspect the pain and
sufferings, and the pressing needs of protection, of the silent victims of the dispute and armed
conflict between Georgia and the Russian Federati on. In Judge Cançado Trindade’s perception,
one has to go beyond the strict inter-State (diploma tic) outlook of traditional international law, for
it is generally recognized that contemporary jus gentium is not at all insensitive to the fate of the
populations. In his view, judicial recognition of the victimization of human beings is an imperative
of justice, which comes at least to alleviate their sufferings.
23. He observes that the Court has spent 92 paragr aphs to concede that a legal dispute at last
crystallized, on 10 August 2008, only after the outbreak of an open and declared war between
Georgia and Russia. The same formalistic reasoning has led the Court, in 70 paragraphs, to uphold
the second preliminary objection, on the basis of allegedly unfulfilled “preconditions” of its own
construction, at variance with its own jurisprudence constante and with the more lucid international
legal doctrine. He warns that under human rights tr eaties, the individuals concerned, in situations
of great vulnerability or adversity, need a higher st andard of protection; yet the Court applied,
contrariwise, a higher standard of State consent fo r the exercise of its jurisdiction. The result has
been the remittance by the Court of the present dispute back to the contending Parties.
24. In part XI of his Dissenting Opinion, Judge Cançado Trindade sustains that human rights
treaties are living instruments to be interpreted in the light of current living conditions, so as to
respond to new needs of protection of human beings. This applies even more forcefully in respect
of a treaty like the CERD Convention, centered on the fundamental principle of equality and
non-discrimination, which lies in the foundations not only of the CERD Convention, but of the
whole International Law of Human Rights, and which belongs, in his view, to the realm of
international jus cogens. The CERD Convention, endowed with universality, occupies a prominent
place in the law of the United Nations itself. Ever since its adoption, the CERD Convention faced
and opposed a grave violation of an obligation of jus cogens (the absolute prohibition of racial
discrimination), generating obligations erga omnes , and it exerted influence on subsequent
international instruments at universal (U.N.) level.
25. He regrets that nowhere does the Court re fer to the actual application that the CERD
Convention has had in practice, throughout the last decades, so as to fulfill its object and purpose, - 15 -
to the benefit of millions of human beings. Nowhere does the Court recognize that the CERD
Convention, ⎯ like other human rights treaties, ⎯ is a living instrument, which has acquired a life
of its own, independently from the assumed or imagined “intentions” of its draftsmen almost half a
century ago. Even within the st atic outlook of the Court, alre ady at the time that the CERD
Convention was being elaborated there were those ⎯ pointed out by him ⎯ who supported the
compulsory settlement of disputes by the Court.
26. With the evolution of contemporary interna tional law, this applies even more forcefully
today, in 2011, in respect of obligations unde r the CERD Convention, and other human rights
treaties. Yet, in the present Judgment, the Court, from an entirely different outlook, upheld the
second preliminary objection, relying upon its ow n strictly textual or grammatical reasoning
relating to the compromissory clause (Article 22) of the CERD Convention. Nowhere does one
find considerations of a contextual nature, or an y attempt to link such compromissory clause to the
object and purpose of the CERD Convention, taking into account the substance and nature of the
Convention as a whole.
27. Nowhere does the Court consider the historical importance of the CERD Convention as a
pioneering human rights treaty, and its continuing contemporaneity for responding to new
challenges that are of legitimate concern of humankind, for the purpose of interpreting the
compromissory clause contained therein. As a result of its own decision, the Court deprived itself
of the determination whether the present dispute (which has victimized so many people) falls or not
under the CERD Convention. The unfortunate out come of the present case discloses that, despite
all the advances achieved for human dignity under the CERD Convention, there is still a long way
to go: the struggle for the prevalence of human rights, ⎯ he adds, ⎯ is never-ending, like in the
myth of Sisyphus.
28. In part XII of his Dissenting Opinion, J udge Cançado Trindade stresses that, on the basis
of all the preceding considerations, his own position, in respect of all the points which form the
object of the present Judgment, stands in clear opposition to the view espoused by the Court. In
addition, it does not squarely fit into the con ceptual framework of the dissenting minority group
either, it goes beyond it. His dissenting position is grounded not only on the assessment of the
evidence produced before the Court, to which he attributes importance, but above all on issues of
principle, to which he attaches even greater importance.
29. He adds that international human rights case-law has constantly stressed that provisions
of human rights treaties be interpreted in a way to render the safeguard of those rights effective; in
this connection, Article 22 of the CERD Convention does not set forth any mandatory
“preconditions” for recourse to the ICJ. To set fo rth such “preconditions” where they do not exist,
amounts to erecting an undue and groundless obstacle to access to justice under a human rights
treaty. The Court has to remain attentive to the basic rationale of human rights treaties.
30. Last but not least, in part XIII of hi s Dissenting Opinion, Judge Cançado Trindade
revisits an old dilemma, ⎯ faced by the Court as well as by the States appearing before it, ⎯ in the
framework of contemporary jus gentium . Such old dilemma, with a direct bearing on the present
and future of international justice, cannot, in his view, be here revisited on the basis of old dogmas,
erected in times past, which no longer exist, on the basis of notions of the “will” of the State, or i
ts
“interests” or intentions. To insist on such dogmas would present no dilemma, as it would lead to
the freezing or ossification of International Law. There is nothing more alien or antithetical to
human rights protection than such dogmas. - 16 -
31. By remitting the present dispute back to the contending Parties, for its settlement by
whatever other means (political or otherwise) they may wish to take or use, the Court has thereby
deprived itself, inter alia, of the determination, at a possible subsequent merits stage, of whether or
not the occurrences referred to in the complaint lodged with it, which caused so many victims, fall
or not under the relevant provisions of the CERD Convention. In his view, the present decision
undermines the appropriate effects of the CERD Convention (including its compromissory clause
in Article 22) and the compulsory jurisdiction of the Court itself thereunder.
32. Given the circumstances, ⎯ he adds, ⎯ the Court cannot remain hostage of State
consent. It cannot keep displaying an instinctive and continuing search for State consent, to the
point of losing sight of the imperative of realization of justice. The moment State consent is
manifested is when the State concerned decides to become a party to a treaty, ⎯ such as the human
rights treaty in the present case, the CERD Convention. The hermeneutics and proper application
of that treaty cannot be continuously subjected to a recurring search for State consent. State
consent is not an element of treaty interpretation ; this would unduly render the letter of the treaty
dead, and human rights treaties are meant to be living instruments, let alone their spirit.
33. Judge Cançado Trindade recalls that th e “founding fathers” of the law of nations (the
droit des gens) never visualized the individual consent of the emerging States as the ultimate source
of their legal obligations. The sad outcome of the present case before the Court is the ineluctable
consequence of inaptly and wrongfully giving pride of place to State consent, even above the
fundamental values at stake, underlying the CERD Convention, which call for the realization of
justice.
34. In his view, it is high time for the Court to give concrete expression of commitment to its
mission, ⎯ as he perceives it, ⎯ when resolving cases, like the present one, in the exercise of its
jurisdiction on the basis of human rights treaties, bearing in mind the rationale , the nature and
substance of those treaties, with all the juridical consequences that ensue therefrom. This Court
cannot keep on privileging State consent above ever ything, time and time again, even after such
consent has already been given by States at the time of ratification of those treaties.
35. The Court cannot keep on embarking on a lite ral or grammatical and static interpretation
of the terms of compromissory clauses enshrine d in those treaties, drawing “preconditions”
therefrom for the exercise of its jurisdiction, in an attitude remindful of traditional international
arbitral practice. When human rights treaties are at stake, ⎯ he proceeds, ⎯ there is need, in his
perception, to overcome the force of inertia, and to assert and develop the compulsory jurisdiction
of the ICJ on the basis of the compromissory clauses contained in those treaties. After all, it is
human beings who are ultimately being protected thereunder, and such compromissory clauses are
to be approached in their ineluctable relationship with the nature and substance of the human rights
treaties at issue, in their entirety.
36. From the standpoint of the justiciables , ⎯ Judge Cançado Trindade contends, ⎯ the
subjects (titulaires) of the protected rights, compromissory clauses such as that of Article 22 of the
CERD Convention are directly related to their access to justice , even if the complaints thereunder
are lodged with the ICJ by States Parties to those human rights treaties. The justiciables are,
ultimately, the human beings concerned. From this humanist optics, which is well in keeping with
the creation itself of the Hague Court (PCIJ and ICJ), to erect a mandatory “precondition” of prior
negotiations for the exercise of the Court’s ju risdiction amounts to erecting, in his view, a
groundless and most regrettable obstacle to justice. - 17 -
37. The realization of justice is an imperative which the Court is to keep constantly in mind.
It can hardly be attained from a strict State-centered voluntarist perspective, and a recurring search
for State consent. The Court cannot, in his per ception, keep on paying lip service to what it
assumes as representing the State’s “intentions” or “will”. The proper in terpretation of human
rights treaties (cf. supra ) is to the ultimate benefit of human beings, for whose protection human
rights treaties have been celebrated, and adopted, by States. The raison d’humanité prevails over
the old raison d’État.
38. Much to his regret, in the present Judgment the Court entirely missed this point: it rather
embarked on the usual exaltation of State consent, labelled (in paragraph 110) as “the fundamental
principle of consent”. Judge Cançado Trindade challenges this view, as, in his understanding,
consent is not “fundamental”, it is not even a “principle”. What is “fundamental”, i.e., what lays in
the foundations of the Court, since its creation, is the imperative of the realization of justice , by
means of compulsory jurisdiction. State consent is but a rule to be observed in the exercise of
compulsory jurisdiction for the realization of justice. It is a means, not an end, it is a procedural
requirement, not an element of treaty interpretation; it surely does not belong to the domain of the
prima principia.
39. To Judge Cançado Trinda de, fundamental principles are those of pacta sunt servanda , of
equality and non-discrimination (at substantive law level), of equality of arms (égalité des armes ⎯
at procedural law level). Fundamental principle is , furthermore, that of humanity (permeating the
whole corpus juris of International Human Rights Law, International Humanitarian Law, and
International Refugee Law). Fundamental principle is, moreover, that of the dignity of the human
person (laying a foundation of International Hu man Rights Law). Fundamental principles of
international law are, in addition, those laid down in Article 2 in the Charter of the United Nations
(and restated U.N. Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in Accordance with the Charter of the United Nations, adopted in
1970 by the U.N. General Assembly).
40. To Judge Cançado Trindade, these are some of the true prima principia , which confer to
the international legal order its ineluctable axiological dimension. These are some of the true prima
principia, which reveal the values which inspire the corpus juris of the international legal order, and
which, ultimately, provide its founda tions themselves. Prima principia conform the substratum of
the international legal order, conveying the idea of an objective justice (proper of natural law).
41. In turn, ⎯ he adds, ⎯ State consent does not belong to the realm of the prima principia ;
recourse to it is a concession of the jus gentium to States. It is a rule to be observed (no one would
deny it) so as to render judicial settlement of international disputes viable. To this Court,
conceived as an International Court of Justice , the realization of justice remains an ideal which, in
the adjudication of human rights cases brought into its cognizance, has not yet been achieved, ⎯ as
sadly disclosed by the present Judgment, given the undue pride of place it has given to State
consent. Such rule or procedural requirement ⎯ Judge Cançado Trindade concludes ⎯ will be
reduced to its proper dimension the day one realizes that conscience stands above the will . This
sums up an old dilemma (faced by the Court as well as by States appearing before it), revisited in
his Dissenting Opinion, in the framework of contemporary jus gentium.
Separate Opinion of Judge Greenwood
Judge Greenwood considers that a decision by the Court, on a request for provisional
measures of protection, that there appears prima faci e to be a basis for the jurisdiction of the Court - 18 -
does not in any way constrain the Court in later stages of the proceedings. The decision in 2008
that there might be a basis for the jurisdiction of the Court was in no sense inconsistent with the
decision in today’s Judgment that jurisdiction had not been established. The reason why there was
no jurisdiction was that Article 22 of CERD impos ed a precondition which had not been satisfied
as Georgia had not made a sufficient attempt to negotiate the specific dispute regarding the
interpretation or application of CERD before it seised the Court.
Separate opinion of Judge Donoghue
In a separate opinion, Judge Donoghue notes that she joins President Owada, Judges Simma
and Abraham, and Judge ad hoc Gaja in dissenting as to Russia’s Second Preliminary Objection.
She then explains that although she voted in fa vour of the decision in the Judgment to reject
Russia’s First Preliminary Objection, she disagre es with the Judgment’s a pproach to the question
whether there is a “dispute” between Georgia and Russia with respect to the interpretation or
application of the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD). Specifically, she reject s the Judgment’s embrace of the notion that a
“dispute” can exist only where the defendant has ma de statements of opposition prior to the filing
of the application. She also rejects the Court’s method of examining the documents and statements
in the record.
First, Judge Donoghue recalls that the question whether a dispute existed between the Parties
concerning the CERD as of the date of the Application is a matter for “objective determination” by
the Court. In making that determination, the C ourt is not limited to considering whether Georgia
provided notice of its claims to Russia, or whether Russia responded to those claims, prior to the
date on which Georgia filed its Application. Previously, the Court has made clear that, in
determining the existence of a dispute, the position or the attitude of a party can be established by
inference. The Court has also relied on statements made in the course of the proceedings before it
to confirm the existence of opposing views and, th erefore, a legal dispute. In addition, Judge
Donoghue points out that there is no general requirement of prior notice of claims or of an intention
to submit those claims to the Court.
For these reasons, Judge Donoghue rejects the Judgment’s characterization of the oft-cited
phrase from the South West Africa cases ((Ethiopia v. South Africa ; Liberia v. South Africa) ,
Preliminary Objections) — that for a dispute to exist, it must be shown that the claim of one party
“is positively opposed” by the other party— as estab lishing a formal requirement that the parties
engage in an exchange of views prior to the sei sin of the Court. On the contrary, the question
whether a claim “is positively opposed” is part and parcel of the Court’s “objective determination”,
based on the totality of the information before it , whether there is an actual, ongoing dispute
between the parties to a contentious case.
Second, Judge Donoghue concludes that, even accepting the view of the law embraced by
the Judgment, there is sufficient evidence to demonstrate that a dispute relating to the interpretation
or application of the CERD existed prior to 9 August 2008, the date on which the Judgment sets the
commencement of a dispute for purposes of Article 22 of the CERD. In her view, the record, taken
as a whole, establishes that Georgia alleged conduct amounting to ethnic discrimination and alleged
that Russia was responsible for that conduct, and that Russia opposed these allegations. By
contrast, the Judgment assigns no probative value to any individual documen t if the document fails
both to allege conduct that could be actionable un der the CERD and to attribute responsibility for
that conduct to Russia. Whether Georgia could m eet its burden to establish the full range of legal
and factual elements of a breach of the CERD by Russia would be relevant if the Court were
considering the merits, but that is not the requi red showing here, where the Court is tasked only
with identifying whether a dispute with respect to the CERD exists. In JudgeDonoghue’s view,
the factual record before the Court is sufficient to confirm that the Parties hold opposing views on - 19 -
matters falling within the subject-matter of the CERD , and that a dispute therefore existed prior to
the period of armed conflict in August 2008.
Judge Donoghue also notes that the decision of the Court that the dispute between Georgia
and Russia began only on 9August2008 has signifi cant consequences for its analysis of the
Second Preliminary Objection, which disregards any engagement between Georgia and Russia
prior to that date.
In conclusion, Judge Donoghue expresses he r concern that the Court’s Judgment has
unnecessarily created new procedural obstacles that may serve to defeat jurisdiction in future cases,
perhaps to the particular detriment of States with limited resources or those that lack experience
before the Court.
___________
Summary of the Judgment of 1 April 2011