INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE INTERNATIONAL CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
(GEORGIA vRUSSIAN FEDERATION)
COMMENTS OF GEORGIA ON THE RUSSIAN FEDERATION'S
ANSWERS TO JUDGES' QUESTIONS
1OCTOBER 2010 COMMENTS OF GEORGIA ON THE RUSSIAN FEDERATION'S ANSWERS TO
JUDGES' QUESTIONS
QUESTION FROM JUDGE KOROMA
The question:
What precisely, in the view of the Parties, is the object and purpose of the clause
contained in A1ticle 22 of the Convention on the Elimination of All Forms of
Racial Discrimination which reads as follows: "which is not settled by negotiation
or by the procedures expressly provided for in this Convention"?
In its Written Response, Russia has restated the arguments it made in itsPreliminalJ' O~jections
and during the oral hearings to the effect that negotiations and recourse to the procedures
provided for in the Convention "constitute preconditions to States' acceptance of the Comt's
jurisdiction." Georgia has fully explained in the written and oral phases why it rejects Russia's
arguments and will not here repeat those reasons, which are maintained in full.
Georgia notes that the parties are in agreement that the concept of"object and purpose" relates to
the treaty as a whole, and not to individual words or phrases. The concept is referred to on eight
occasions in the 1969 Vienna Convention: in seven instances the phrase used is "the object and
purpose of the treaty," and in the eighth the words used are "its object and purpose" (emphasis
added), making it clear that the concept refers to the treaty as a whole. This is also the approach
taken by the Court: see, e.g., Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment,
l.C.J.Reports 1994, p. 6, at 22 (para. 41) and at 25-26 (para. 52).
Russia invokes the "principle ofejjètutile"as an interpretative teclmique. Georgia notes that the
"principle" is not to be found in the 1969 Viem1aConvention, and submits that it cannot supplant
or supplement the mles of interpretation to be found in that Convention.
That said, Georgia's interpretation of Article 22 is fully consistent with this "principle," in that it
attributes meaning to all the words and phrases in the Article, including:which is not settled by
negotiation or by the procedures expressly provided for in this Convention." Georgia submits
that the"effet utile"of this language is to deny recourse to the Court in regard to a dispute under
the Convention only if the dispute has already been settled by diplomatie negotiations between
the parties, orif it has been settled by the conciliation procedures provided for in Part II of the
Convention.
Since the dispute between Georgia and Russia plainly has not been settled by negotiation or by
the procedures provided for in the Convention, it follows that the Court has jurisdiction under
A1ticle 22. This conclusion does not deprive the quoted language, which is cited in Judge
Koroma's question, of its intended meaning or effect; to the contrary, it gives the proper effect to
the text by interpreting it in accordance with its plain meaning.
- 1 - QUESTION FROM JUDGE ABRAHAM
The question:
Au stade actuel de la procédure,la Cour est appeléeseulement à se prononcer sur
les exceptions préliminaires soulevéespar la Partie défenderesse. Compte tenu
des débats qui ont eu lieu au cours des audiences, faut-il comprendre que la
Russie a retirésa troisièmeexception en tant qu'exception préliminaire?
In its Wlitten Response, Russia states that it "is not meant to be understood that the third
objection ... should be considered as withdrawn," and that it has "merely ... suggested that the
objection should be decided at any merits stage" and it "reserves its right to come back to this
objection as part of the proceedings on the merits."
Georgia notes the ambiguity of Russia's response. Russia appears to recognise (coiTectly in
Georgia's view) that it is for the Court and not for a party to decide whether or not an objection
raised as a preliminary matter is properly to be joined to the merits. Russia has not withdrawn
the objection or formally requested that it be joined to the merits, and has done no more than
reserve its right to raise this issue at the merits stage. Georgia further notes that Russia has made
no attempt to explain why its third preliminary objection should be joined to the merits, and has
not sought in any way to provide a substantive response to Georgia's submission that the Court
should reject the third preliminary objection at this stage.
In the second round of the oral proceedings, Russia conceded that Georgia had provided "full
argument"' on why the third preliminary objection should be rejected at this stage, yet chose not
to respond to Georgia'sargument.
In circumstances in which Georgia's argument stands entirely unrebutted, it is submitted that
there is no reason for the Comi to delay its decision. Georgia invites the Court to reject the third
preliminary objectionnow.
QUESTION FROM JUDGE CANÇADO TRINDADE
The question:
In your understanding, does the nature of human rights treaties such as the CERD
Convention (regulating relations at intra-State level) have a bearing or incidence
on the interpretation and application of a compromissory clause contained
therein?
Georgia notes that Russia's Written Response does not directly address the question raised by
Judge Cançado Trindade. Georgia observes that there is nothing in Russia's response to
contradict or undermine Georgia's response to the question put, namely that "[t]he character of
human rights treaties -- in particular their non-synallagmatic character -- provides a reason for
1CR 2010/10, p. 47, para. 49 (Zimmermann).
- 2 -the broad interpretation of compromissory clauses, and not for their narrow or restrictive
interpretation."
To the contrat-y,Russia's response recognises that the obligations under the Convention are not
to be performed exclusively at the intra-State level; that the Convention adopts "a fonn of
collective guarantee of respect" for its provisions; and that "the obligations under the Convention
are of an erga omnes nature." These statements by Russia ack.nowledge that the Convention was
intended to serve as an effective instrument for eliminating the scourge of racial (including
ethnie) discrimination in ali its fonns. In that regard, they support Georgia's position on the
interpretation of Article 22. Recourse to the Court under that Article is a principal means by
which States may enforce the Convention's provisions against other States, and thereby make the
Convention more effective. To read preconditions on the seisin of the Court into Article 22, in a
maru1erthat contradicts the plain meaning of the text, as Russia proposes, would ft·ustratethe
object and pm-poseof the Convention: it would render access to the Court impossible for all
practical pm-poses, and diminish the Court's role as a means for timely enforcement of the
Convention's erga omnes obligations.
- 3 -
Georgia's comments on the Russian Federation's written response to the questions put by Judges Koroma, Abraham and Cançado Trindade at the end of the public sitting held on Friday 17 September 2010