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The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and to
Articles 73, 74 and 75 of the Rules of Court,
Makes the following Order:
1. Whereas by an Application filed in the Registry of the Court on 12 August
2008, the Government of Georgia instituted proceedings against the Russian
Federation for alleged violations of the International Convention on the
Elimination of All Forms of Racial Discrimination (hereinafter “CERD”);
2. Whereas Georgia, in order to found the jurisdiction of the Court, relied
in its Application on Article 22 of CERD which provides that:
“Any 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 Convention,
shall, at the request of any of the parties to the dispute, be referred to
the International Court of Justice for decision, unless the disputants agree
to another mode of settlement”;
3. Whereas in its Application Georgia states that:
“The Russian Federation, acting through its organs, agents, persons and
entities exercising elements of governmental authority, and through South
Ossetian and Abkhaz separatist forces under its direction and control, has
practised, sponsored and supported racial discrimination through attacks
against, and mass-expulsion of, ethnic Georgians, as well as other ethnic
groups, in the South Ossetia and Abkhazia regions of the Republic of
Georgia”,
and that the Russian Federation seeks to consolidate changes in the ethnic
composition of South Ossetia and Abkhazia resulting from its actions “by
preventing the return to South Ossetia and Abkhazia of forcibly displaced
ethnic Georgian citizens and by undermining Georgia’s capacity to exercise
jurisdiction in this part of its territory”; whereas Georgia contends that
“[t]he changed demographic situation in South Ossetia and Abkhazia is
intended to provide the foundation for the unlawful assertion of
independence from Georgia by the de facto South Ossetian and Abkhaz
separatist authorities”;
4. Whereas Georgia explains the origin of the conflict in South Ossetia as
follows:
“On 10 November 1989, the Regional Public Council of the South Ossetian
Autonomous District [which formed part of the Georgian Soviet Socialist
Republic] formally requested the Georgian Supreme Soviet to upgrade the
status of the District to ‘Autonomous Republic’. After the Georgian Supreme
Soviet refused, on 28 November 1990, the Regional Public Council of the
South Ossetian Autonomous District re-named the District the ‘Soviet
Republic of South Ossetia’, and scheduled elections for a new Supreme
Council to be held on 9 December 1990 . . .
On 11 December 1990, the Georgian Supreme Soviet declared the 9 December
elections illegitimate . . ., annulled the results, and abolished the
Autonomous District of South Ossetia and its Regional Public Council.
Following these events, violent conflict broke out . . . Throughout 1991,
coinciding with Georgia’s Declaration of Independence on 9 April, over 1,000
people
were killed in the fighting in South Ossetia. During this time, some 23,000
ethnic Georgians were forced to flee South Ossetia and settle in other parts
of Georgia”;
5. Whereas, in relation to the beginning of the conflict in Abkhazia,
Georgia contends that following the dissolution of the Soviet Union in
December 1991, “Abkhaz separatists under the leadership of Vladislav
Ardzinba sought to secede from the Republic of Georgia, including by the use
of force”;
6. Whereas it is further contended in the Application that the Russian
Federation has “violated its obligations under CERD during three distinct
phases of its interventions in South Ossetia and Abkhazia” in the period
from 1990 to August 2008;
7. Whereas Georgia asserts that the first phase of the intervention in South
Ossetia took place between 1990 and 1992 and in Abkhazia between 1991 and
1994; whereas Georgia claims that during this first phase “the Russian
Federation provided essential support to South Ossetian and Abkhaz
separatists in their attacks against, and mass-expulsion of, virtually the
entire ethnic Georgian population of South Ossetia and Abkhazia” and that
support from the Russian Federation included “the provision of weapons and
supplies and the recruitment of mercenaries to support separatist forces in
both regions, and, in the case of Abkhazia, the deployment of Russian armed
forces directly to assist military operations conducted by the separatists”;
8. Whereas Georgia claims that hostilities formally came to an end in South
Ossetia on 24 June 1992 following the Agreement on the Principles of the
Settlement of the Georgian-Ossetian Conflict signed by Georgia, the South
Ossetian “separatist forces” and the Russian Federation; and in Abkhazia on
14 May 1994 following the signing of the Moscow Agreement on a Ceasefire and
Separation of Forces by Georgia, the Abkhaz “separatist forces” and the
Russian Federation; whereas both agreements provided for the creation of
joint peacekeeping forces which, according to Georgia, were “dominated by
ostensibly neutral Russian peacekeepers”;
9. Whereas Georgia maintains that the signature of these agreements, which
“formalized the Russian Federation’s dual status as a party to those
conflicts and as an ostensible peacekeeper and facilitator of negotiations”,
marked the second phase of “the Russian Federation’s intervention” in South
Ossetia and Abkhazia respectively;
10. Whereas Georgia contends that:
“By implementing racially discriminatory policies in South Ossetia and
Abkhazia under cover of its peacekeeping mandate, the Russian Federation has
sought to consolidate the forced displacement of the ethnic Georgian and
other populations that resulted from ‘ethnic cleansing’ from 1991 to 1994”;
whereas it claims that the Russian Federation “has supported the South
Ossetian and Abkhaz separatists’ quest for independence from Georgia”; and
whereas Georgia concludes that “[a]chieving this goal necessarily implies
the expulsion of ethnic Georgians and other populations from their homes,
and denial of their right to return to their homes and to live in peace
within the sovereign territory of Georgia”;
11. Whereas Georgia asserts that, as part of its policy of racial
discrimination, the Russian Federation “has consistently frustrated the
return of Internally Displaced Persons (IDPs) since the conflicts of
1991-1994” and that, as a consequence, “demographic changes forced upon the
population by the South Ossetian and Abkhaz separatists with Russian support
are more likely to become permanent”;
12. Whereas, in its Application, Georgia points out that in furtherance of
its policy to support “South Ossetian and Abkhaz separatists”, the Russian
Federation has taken other actions that violate CERD; whereas, by way of
example, Georgia contends that “the Russian Federation has conferred its
citizenship upon almost the entire non-ethnic Georgian population of South
Ossetia and Abkhazia” and that ethnic Georgians remaining in South Ossetia
and Abkhazia “who have refused to renounce their Georgian citizenship in
favour of Russian citizenship, have faced active intimidation and harassment
by soldiers associated with [the] armed forces of the Russian Federation”;
13. Whereas Georgia asserts that “the de facto separatist authorities of
South Ossetia and Abkhazia enjoy unprecedented and far-reaching support from
the Russian Federation in the implementation of discriminatory policies
against the ethnic Georgian population” and that this support “has the
effect of denying the right of self-determination to the ethnic Georgians
remaining in South Ossetia and Abkhazia and those seeking to return to their
homes in South Ossetia and Abkhazia since the ceasefires of 1992 and 1994,
respectively”; and whereas it claims that “by recognizing and supporting
South Ossetia’s and Abkhazia’s separatist authorities, the Russian
Federation is also preventing Georgia from implementing its obligations
under CERD, by assuming control over its territory”;
14. Whereas in its Application Georgia claims that “the Russian Federation
has also systematically attempted to undermine Georgia’s territorial
sovereignty” by taking steps to recognize the independence of South Ossetia
and Abkhazia; and whereas it adds that these acts have “significantly
escalated tensions in South Ossetia and Abkhazia, and opened the door to
further conflict”;
15. Whereas Georgia claims that, as from April 2008, in addition to the
measures designed to strengthen the legitimacy of the de facto institutions
of the separatist authorities, “the Russian Federation [has] also increased
its military activities in both regions as a prelude to its invasion of
Georgia in August 2008”; and whereas, according to Georgia, “Russia’s
military build-up was accompanied by a campaign of discrimination against
ethnic Georgians and others who might be opposed to the extension of Russian
influence in South Ossetia and Abkhazia”;
16. Whereas Georgia asserts that, “in contrast to Russian attempts to
nurture the creation of ethnically homogeneous States that are politically,
economically, socially and militarily beholden to it”, Georgia has
consistently “strived for the integration of multi-ethnic Abkhaz and South
Ossetian societies into a democratic Georgian State” and offered both
regions “unlimited autonomy”; and whereas Georgia contends that “it has also
steadfastly pressed for the right of all IDPs (regardless of ethnicity) to
return to their homes”;
17. Whereas Georgia contends that the third phase of “the Russian
Federation’s intervention in South Ossetia and Abkhazia began on 8 August
2008, when Russian forces invaded Georgian territory”;
18. Whereas Georgia alleges that, “in response to the persistent shelling of
ethnic Georgian villages in South Ossetia by separatist forces, Georgian
military forces launched a limited operation into territory held by ethnic
separatists on 7 August 2008 for purposes of putting a stop to the attacks”;
whereas it explains that the Russian Federation responded to Georgia’s
actions “with a full-scale invasion” of Georgian territory on 8 August 2008,
“occupied more than half of Georgia and attacked civilians and civilian
objects” throughout the country, “resulting in significant casualties and
destruction”;
19. Whereas, according to Georgia, at the same time the situation in
Abkhazia quickly began to deteriorate, with attacks against Georgian
villages in the Kodori valley, bombing of Georgia’s Black Sea port of Poti
and deployment of Russian ground troops and armoured vehicles in Abkhazia;
20. Whereas Georgia claims, “in its own right and as parens patriae of its
citizens”, that the Russian Federation,
“through its State organs, State agents, and other persons and entities
exercising governmental authority, and through the South Ossetian and Abkhaz
separatist forces and other agents acting on the instructions of, and under
the direction and control of the Russian Federation, is responsible for
serious violations of its fundamental obligations under CERD, including
Articles 2, 3, 4, 5 and 6”;
21. Whereas Georgia further claims that these violations include, but are
not limited to:
“(a) widespread and systematic discrimination against South Ossetia’s and
Abkhazia’s ethnic Georgian population and other groups during the conflicts
of 1991-1994, 1998, 2004 and 2008, reflected in acts including murder,
unlawful attacks against civilians and civilian objects, torture, rape,
deportation and forcible transfer, imprisonment and hostage-taking, enforced
disappearance, wanton destruction and unlawful appropriation of property not
justified by military necessity, and plunder;
(b) widespread and systematic denial on discriminatory grounds of the right
of South Ossetia’s and Abkhazia’s ethnic Georgian and other refugees and
IDPs to return to their homes;
(c) widespread and systematic unlawful appropriation and sale of homes and
other property belonging to South Ossetia’s and Abkhazia’s ethnic Georgians
and other groups forcibly displaced during the conflicts of 1991-1994, 1998,
2004 and 2008 and denied the right to return to the South Ossetian and
Abkhaz regions;
(d) the continuing discriminatory treatment of ethnic Georgians in South
Ossetia and in the Gali District of Abkhazia, including but not limited to
pillage, hostage-taking, beatings and intimidation, denial of the freedom of
movement, denial of their right to education in their mother tongue,
pressure to obtain Russian citizenship and/or Russian passports, and threats
of punitive taxes and expulsions for maintaining Georgian citizenship;
(e) the sponsoring, defending, and supporting of ethnic discrimination by
the de facto South Ossetian and Abkhaz separatist authorities and the
recognition as lawful of a situation created by a serious breach of Russia’s
obligations under CERD and of its obligations erga omnes, namely recognition
in whole or in part of the South Ossetian and Abkhaz separatist entities
amounting to recognition of a situation created by ‘ethnic cleansing’
constituting the crime against humanity of persecution and systematic
discrimination on ethnic grounds;
(f) preventing the Republic of Georgia from exercising jurisdiction over its
territory in the regions of South Ossetia [and] Abkhazia in order to
implement its obligations under CERD; and
(g) the launching of a war of aggression against Georgia with the aims of
(i) securing ethnically homogeneous allies in South Ossetia and Abkhazia
free from Georgian political, social and cultural influence; (ii)
permanently denying the right of displaced ethnic Georgians to return to
their homes in South Ossetia and Abkhazia; and (iii) permanently denying all
the people of Georgia their right to self-determination in accordance with
CERD”;
22. Whereas, at the end of its Application, Georgia asks the Court to
adjudge and declare that:
“the Russian Federation, through its State organs, State agents, and other
persons and entities exercising governmental authority, and through the
South Ossetian and Abkhaz separatist forces and other agents acting on the
instructions of or under the direction and control of the Russian
Federation, has violated its obligations under CERD by:
(a) engaging in acts and practices of ‘racial discrimination against
persons, groups of persons or institutions’ and failing ‘to ensure that all
public authorities and public institutions, national and local, shall act in
conformity with this obligation’ contrary to Article 2 (l) (a) of CERD;
(b) ‘sponsoring, defending and supporting racial discrimination’ contrary to
Article 2 (l) (b) of CERD;
(c) failing to ‘prohibit and bring to an end, by all appropriate means,
including legislation as required by circumstances, racial discrimination’
contrary to Article 2 (l) (d) of CERD;
(d) failing to condemn ‘racial segregation’ and failing to ‘eradicate all
practices of this nature’ in South Ossetia and Abkhazia, contrary to Article
3 of CERD;
(e) failing to ‘condemn all propaganda and all organizations . . . which
attempt to justify or promote racial hatred and discrimination in any form’
and failing ‘to adopt immediate and positive measures designed to eradicate
all incitement to, or acts of, such discrimination’, contrary to Article 4
of CERD;
(f) undermining the enjoyment of the enumerated fundamental human rights in
Article 5 by the ethnic Georgian, Greek and Jewish populations in South
Ossetia and Abkhazia, contrary to Article 5 of CERD;
(g) failing to provide ‘effective protection and remedies’ against acts of
racial discrimination, contrary to Article 6 of CERD”;
23. Whereas Georgia also asks the Court
“to order the Russian Federation to take all steps necessary to comply with
its obligations under CERD, including:
(a) immediately ceasing all military activities on the territory of the
Republic of Georgia, including South Ossetia and Abkhazia, and immediate
withdrawing of all Russian military personnel from the same;
(b) taking all necessary and appropriate measures to ensure the prompt and
effective return of IDPs to South Ossetia and Abkhazia in conditions of
safety and security;
(c) refraining from the unlawful appropriation of homes and property
belonging to IDPs;
(d) taking all necessary measures to ensure that the remaining ethnic
Georgian populations of South Ossetia and the Gali District are not subject
to discriminatory treatment including but not limited to protecting them
against pressures to assume Russian citizenship, and respect for their right
to receive education in their mother tongue;
(e) paying full compensation for its role in supporting and failing to bring
to an end the consequences of the ethnic cleansing that occurred in the
1991-1994 conflicts, and its subsequent refusal to allow the return of IDPs;
(f) not to recognize in any manner whatsoever the de facto South Ossetian
and Abkhaz separatist authorities and the fait accompli created by ethnic
cleansing;
(g) not to take any measures that would discriminate against persons,
whether legal or natural, having Georgian nationality or ethnicity within
its jurisdiction or control;
(h) allow Georgia to fulfil its obligations under CERD by withdrawing its
forces from South Ossetia and Abkhazia and allowing Georgia to restore its
authority and jurisdiction over those regions; and
(i) to pay full compensation to Georgia for all injuries resulting from its
internationally wrongful acts”;
24. Whereas, on 14 August 2008, Georgia, referring to Article 41 of the
Statute of the Court and to Articles 73, 74 and 75 of the Rules of Court,
submitted a Request for the indication of provisional measures, pending the
Court’s judgment in the proceedings instituted by Georgia against the
Russian Federation, in order to preserve its rights under CERD “to protect
its citizens against violent discriminatory acts by Russian armed forces,
acting in concert with separatist militia and foreign mercenaries”,
including
“unlawful attacks against civilians and civilian objects, murder, forced
displacement, denial of humanitarian assistance, and extensive pillage and
destruction of towns and villages, in South Ossetia and neighbouring regions
of Georgia, and in Abkhazia and neighbouring regions, under Russian
occupation”;
25. Whereas Georgia observes that “[t]he continuation of these violent
discriminatory acts constitutes an extremely urgent threat of irreparable
harm to [its] rights under CERD in dispute in this case”;
26. Whereas, in its Request for the indication of provisional measures,
Georgia refers to the basis of jurisdiction of the Court invoked in its
Application, and to the facts set out and the submissions made therein;
27. Whereas Georgia reiterates the contention made in its Application that
“beginning in the early 1990s and acting in concert with separatist forces
and mercenaries in the Georgian regions of South Ossetia and Abkhazia, the
Russian Federation has engaged in a systematic policy of ethnic
discrimination directed against the ethnic Georgian population and other
groups in those regions”;
and that these actions have “directly or indirectly resulted in the death or
disappearance of thousands of civilians and the internal displacement of
approximately 300,000 persons”, whose right of return is being denied;
28. Whereas Georgia claims that, on 8 August 2008, the Russian Federation
“launched a full-scale military invasion against Georgia in support of
ethnic separatists in South Ossetia and Abkhazia”, which has resulted in
“hundreds of civilian deaths, extensive destruction of civilian property,
and the displacement of virtually the entire ethnic Georgian population in
South Ossetia”; and whereas it further claims that the withdrawal of the
Georgian armed forces and the unilateral declaration of a ceasefire did not
prevent the Russian Federation from continuing its military operations
beyond South Ossetia into territories under the control of the Georgian
Government;
29. Whereas Georgia contends that, on 13 August 2008, the
“Russian armed forces, acting together with South Ossetian separatist
militia and foreign mercenaries, have engaged in a campaign of ethnic
cleansing involving murder and forced displacement of ethnic Georgians, and
the pillage and extensive destruction of villages adjacent to South
Ossetia”;
30. Whereas Georgia alleges that the following facts constitute
“discriminatory human rights abuses against Georgian citizens in and around
South Ossetia”:
“-- Russian forces and separatist militia have summarily executed Georgian
civilians and persons hors de combat after verifying their ethnicity in the
villages of Nikosi, Kurta, and Armarishili;
-- Russian forces and separatist militia have engaged in widespread pillage
and burning of homes in the villages of Karbi, Mereti, Disevi, Ksuisi,
Kitsnisi, Beloti, Vanati, and Satskheneti and have executed elderly
civilians;
-- Russian forces have forcibly transferred the remaining ethnic Georgians
in South Ossetia to Kurta detention camp;
-- in Gori, Russian forces bombed the hospital, university, market place,
and post-office, even though this is an undefended town without any Georgian
military presence”;
31. Whereas Georgia observes that “[t]he systematic pillage and destruction
of Georgian villages is clearly intended to prevent the return of civilians
displaced as a result of Russia’s aggression commencing August 8”;
32. Whereas Georgia further contends that Russian military operations have
extended to Abkhazia and beyond and have included “attacks against the Black
Sea port of Poti resulting in numerous civilian deaths and extensive
destruction of civilian property” and the occupation of the town of Zugdidi
and the subjection of its population to “widespread pillage and other
abuses”; whereas Georgia asserts that Georgian civilians in the district of
Gali have been denied their freedom of movement and have faced increasing
intimidation and pressure to adopt Russian citizenship;
33. Whereas Georgia claims that “the rights which are the subject of the
dispute are set forth in Articles 2, 3, 4, 5 and 6 of CERD”; whereas Georgia
further claims that the rights under CERD that Georgia seeks to protect with
its Request “arise from the obligations of the Russian Federation to prevent
acts of ethnic discrimination”, including:
“(a) the right to ensure that the Russian Federation and separatist
authorities under its direction and control refrain from any further act or
practice of ethnic discrimination against Georgian citizens and that
civilians are fully protected against such acts in territories under the
occupation or effective control of Russian forces, pursuant to Article 2
(1);
(b) the right to ensure that the Russian Federation and separatist
authorities under its direction and control refrain from any further acts
resulting in the recognition of or rendering permanent the ethnic
segregation of Georgian citizens through forced displacement or denial of
the right of IDPs to return to their homes in South Ossetia, Abkhazia, and
adjacent territories under the occupation or effective control of Russian
forces, pursuant to Article 3;
(c) the right to ensure that the Russian Federation and separatist
authorities under its direction and control refrain from any further acts
violating the enjoyment by Georgian citizens of fundamental human rights
including in particular the right to security of the person and protection
against violence or bodily harm, the right to freedom of movement and
residence within the borders of Georgia, the right of IDPs to return to
their homes under conditions of safety, and the right to protection of homes
and property against pillage and destruction, pursuant to Article 5; and
(d) the right to ensure that the Russian Federation and separatist
authorities under its direction and control refrain from any acts denying to
Georgian citizens under their jurisdiction effective protection and remedies
against ethnic discrimination and violations of human rights pursuant to
Article 6”;
34. Whereas Georgia accordingly requests the Court “as a matter of utmost
urgency” and “in order to prevent irreparable prejudice to the rights of
Georgia and its citizens under CERD”, to order the following measures:
“(a) the Russian Federation shall give full effect to its obligations under
CERD;
(b) the Russian Federation shall immediately cease and desist from any and
all conduct that could result, directly or indirectly, in any form of ethnic
discrimination by its armed forces, or other organs, agents, and persons and
entities exercising elements of governmental authority, or through
separatist forces in South Ossetia and Abkhazia under its direction and
control, or in territories under the occupation or effective control of
Russian forces;
(c) the Russian Federation shall in particular immediately cease and desist
from discriminatory violations of the human rights of ethnic Georgians,
including attacks against civilians and civilian objects, murder, forced
displacement, denial of humanitarian assistance, extensive pillage and
destruction of towns and villages, and any measures that would render
permanent the denial of the right to return of IDPs, in South Ossetia and
adjoining regions of Georgia, and in Abkhazia and adjoining regions of
Georgia, and any other territories under Russian occupation or effective
control”;
35. Whereas on 12 and 14 August 2008, dates on which the Application and the
Request for the indication of provisional measures were filed in the
Registry respectively, the Deputy-Registrar advised the Government of the
Russian Federation of the filing of those documents and forthwith sent it
signed originals of them, in accordance with Article 40, paragraph 2, of the
Statute of the Court and with Article 38, paragraph 4, and Article 73,
paragraph 2, of the Rules of Court; whereas the Deputy-Registrar also
notified the Secretary-General of the United Nations of the filing of those
documents;
36. Whereas, on 15 August 2008, the Registrar informed the Parties that the
President, acting under Article 74, paragraph 3, of the Rules of Court, had
fixed 8 September 2008 as the date for the opening of the oral proceedings
on the Request for the indication of provisional measures;
37. Whereas, also on 15 August 2008, the President, referring to Article 74,
paragraph 4, of the Rules of Court, addressed a communication to the two
Parties, urgently calling upon them “to act in such a way as will enable any
order the Court may take on the request for provisional measures to have its
appropriate effects”;
38. Whereas, pending the notification under Article 40, paragraph 3, of the
Statute and Article 42 of the Rules of Court, by transmittal of the printed
bilingual text of the Application to the Members of the United Nations, the
Registrar, on 19 August 2008, informed those States of the filing of the
Application and of its subject-matter, and of the filing of the Request for
the indication of provisional measures;
39. Whereas, since the Court includes upon the Bench no judge of Georgian
nationality, the Georgian Government has availed itself of the provisions of
Article 31 of the Statute of the Court and has chosen Mr. Giorgio Gaja to
sit as judge ad hoc in the case;
40. Whereas, by a Note Verbale of 19 August 2008, received in the Registry
on the same day, the Russian Federation informed the Court of the
appointment of Agents for the purposes of the case;
41. Whereas, on 25 August 2008, Georgia, referring to “the rapidly changing
circumstances in Abkhazia and South Ossetia”, submitted an “Amended Request
for the Indication of Provisional Measures of Protection” (hereinafter the
“Amended Request”);
42. Whereas in the Amended Request Georgia claims that, “following its
invasion commencing on 8 August 2008”, the Russian Federation assumed
control over all of South Ossetia and Abkhazia as well as “adjacent areas
within the territory of Georgia”; whereas, according to
Georgia, in these territories ethnic Georgians have been subjected to
systematic discriminatory acts, including physical violence and the plunder
and destruction of their homes; and whereas it is stated that “[t]he
manifest objective of this discriminatory campaign is the mass-expulsion of
the ethnic Georgian population from South Ossetia, Abkhazia, and other
neighbouring areas of Georgia”;
43. Whereas Georgia submits that in a number of specific areas of Georgia
allegedly under Russian control, “widespread and systematic acts of violent
racial discrimination” have been committed against ethnic Georgians; and
whereas it adds that “[a] particular cause for concern is the Russian
occupation of [the] Akhalgori District, outside and to the east of South
Ossetia, and previously under Georgian Government control”;
44. Whereas it is contended in the Additional Request that the Russian
Federation has consolidated its “effective control” over the occupied
“Georgian regions of South Ossetia and Abkhazia, as well as adjacent
territories” which are situated within “Georgia’s internationally recognized
boundaries”; and whereas therefore, for the purposes of the fulfilment by
the Russian Federation of its obligations under CERD, “South Ossetia,
Abkhazia, and relevant adjacent regions, fall within the Russian
Federation’s jurisdiction”;
45. Whereas Georgia asserts in its Amended Request that it requests the
Court to indicate provisional measures in order to prevent irreparable
prejudice “to the right of ethnic Georgians to be free from discriminatory
treatment, in particular violent or otherwise coercive acts . . . and other
acts intended to expel them from their homes in South Ossetia, Abkhazia, and
adjacent regions located within Georgian territory” and “to the right of
return of ethnic Georgians to South Ossetia and Abkhazia”;
46. Whereas Georgia alleges that, owing to the Russian Federation’s
continuing discrimination against ethnic Georgians in Abkhazia, South
Ossetia and neighbouring areas,
“the remaining ethnic Georgians in South Ossetia, Abkhazia, and adjacent
regions, are at imminent risk of violent expulsion, death or personal
injury, hostage-taking and unlawful detention, and damage to or loss of
their homes and other property”;
and whereas it adds that “the prospects for the return of those ethnic
Georgians who have already been forced to flee are rapidly deteriorating”;
47. Whereas Georgia states that it urgently requests the indication of
provisional measures
“to avert a situation whereby the implementation of a judgment of the Court
upholding the rights of Georgian citizens under Articles 2 and 5 of CERD to
remain in South Ossetia, Abkhazia, or adjacent regions, or to return to
their homes in these territories, is rendered impossible”;
48. Whereas in its Amended Request
“Georgia respectfully requests the Court as a matter of urgency to order the
following provisional measures, pending its determination of this case on
the merits, to prevent irreparable harm to the rights of ethnic Georgians
under Articles 2 and 5 of CERD to be secure in their persons and to be
protected against violence or bodily harm in the areas of Georgian territory
under the effective control of the Russian Federation:
(a) the Russian Federation shall take all necessary measures to ensure that
no ethnic Georgians or any other persons are subject to violent or coercive
acts of racial discrimination, including but not limited to the threat or
infliction of death or bodily harm, hostage-taking and unlawful detention,
the destruction or pillage of property, and other acts intended to expel
them from their homes or villages in South Ossetia, Abkhazia and/or adjacent
regions within Georgia;
(b) the Russian Federation shall take all necessary measures to prevent
groups or individuals from subjecting ethnic Georgians to coercive acts of
racial discrimination, including but not limited to the threat or infliction
of death or bodily harm, hostage-taking and unlawful detention, the
destruction or theft of property, and other acts intended to expel them from
their homes or villages in South Ossetia, Abkhazia and/or adjacent regions
within Georgia;
(c) the Russian Federation shall refrain from adopting any measures that
would prejudice the right of ethnic Georgians to participate fully and
equally in the public affairs of South Ossetia, Abkhazia and/or adjacent
regions of Georgia.
Georgia further requests the Court as a matter of urgency to order the
following provisional measures to prevent irreparable injury to the right of
return of ethnic Georgians under Article 5 of CERD pending the Court’s
determination of this case on the merits:
(d) the Russian Federation shall refrain from taking any actions or
supporting any measures that would have the effect of denying the exercise
by ethnic Georgians and any other persons who have been expelled from South
Ossetia, Abkhazia, and adjacent regions on the basis of their ethnicity or
nationality, their right of return to their homes of origin;
(e) the Russian Federation shall refrain from taking any actions or
supporting any measures by any group or individual that obstructs or hinders
the exercise of the
right of return to South Ossetia, Abkhazia, and adjacent regions by ethnic
Georgians and any other persons who have been expelled from those regions on
the basis of their ethnicity or nationality;
(f) the Russian Federation shall refrain from adopting any measures that
would prejudice the right of ethnic Georgians to participate fully and
equally in public affairs upon their return to South Ossetia, Abkhazia, and
adjacent regions”;
49. Whereas, on 4 September 2008, Georgia communicated to the Court
“Observations on Provisional Measures” consisting of a set of documents
relating to Georgia’s Amended Request for the indication of provisional
measures; and whereas, on 5 September 2008, the Russian Federation
communicated to the Court the “Contribution of the Russian Federation to the
hearings on provisional measures” also consisting of a set of documents;
50. Whereas, at the public hearings held on 8, 9 and 10 September 2008, in
accordance with Article 74, paragraph 3, of the Rules of Court, oral
statements on the Request for the indication of provisional measures were
presented by the following representatives of the Parties:
On behalf of Georgia: H.E. Ms Tina Burjaliani,
Mr. James R. Crawford,
Mr. Payam Akhavan,
Mr. Paul S. Reichler;
On behalf of the Russian Federation: H.E. Mr. Roman Kolodkin,
H.E. Mr. Kirill Gevorgian,
Mr. Alain Pellet,
Mr. Andreas Zimmermann,
Mr. Samuel Wordsworth;
***
51. Whereas, in its first round of oral argument, Georgia restated the
position set out in its Application and in its Amended Request for the
indication of provisional measures, and indicated that the requirements for
the indication by the Court of the provisional measures requested have been
met in the present case;
52. Whereas Georgia claimed that “the discrimination against the ethnic
Georgian communities in Abkhazia, South Ossetia and the Gori district gained
momentum” following 8 August 2008; and whereas it asserted that “in the last
month, more than 158,000 ethnic Georgians have been added to the number of
internally displaced persons in Georgia” which meant that “10 per cent of
the Georgian population is now living in exile in their own country”;
53. Whereas Georgia asserted that “there is no sign that the Russian
Federation and the de facto separatist authorities in South Ossetia and
Abkhazia intend to cease” a campaign of “sustained and violent
discrimination being waged” against ethnic Georgians in Abkhazia, South
Ossetia and the Gori district before its objective, namely “the creation of
two territories that are cleansed of ethnic Georgians and placed under the
authority of separatists loyal to the Russian Federation”, has been
achieved; and whereas, according to Georgia, “the violent discrimination has
continued since the so-called ‘ceasefire’, since Georgia filed its
Application, and since the Request for provisional measures was put before
the Court”;
54. Whereas Georgia contended that “the obligations under the Convention are
evidently engaged in relation to Russia’s treatment of ethnic Georgians in
Abkhazia, South Ossetia, and other areas of Georgia under Russian control”
and reaffirmed that, for the purposes of its request for the indication of
provisional measures, the rights at issue before the Court are the rights of
Georgia and ethnic Georgians guaranteed under Articles 2 and 5 of CERD;
55. Whereas Georgia stressed that its Request for the indication of
provisional measures is directed specifically at the protection of the
ethnic Georgian population who are at grave risk of imminent violence
against their person and property in the Gali district of Abkhazia, the
Akhalgori district of South Ossetia and the adjacent Gori district; and
whereas Georgia claimed that “Russia exercises significant control over the
Georgian territories under its occupation, and also controls the separatist
régimes in Abkhazia and South Ossetia” and thus “has the power to stop
ongoing acts of discrimination”;
56. Whereas Georgia stated that the question of attribution would have to be
dealt with on the merits of the case; whereas it contended however that “the
evidence already available indicates on a prima facie basis that acts and
omissions which form the basis of Georgia’s complaint have been committed --
and continue to be committed -- by persons for whose conduct Russia is
responsible”;
57. Whereas at the end of the first round of oral observations Georgia
reiterated its requests made in the Amended Request for the indication of
provisional measures and in addition asked the Court “to order the
respondent State to permit and facilitate, and to refrain from obstructing,
the delivery of urgently needed humanitarian assistance to ethnic Georgians
and others remaining in territory that is under the control of Russian
forces”;
*
58. Whereas, in its first round of oral argument the Russian Federation
presented a brief account of the history of the region since the eighteenth
century; whereas, regarding the first period referred to by Georgia in its
Application (see paragraphs 7-8 above), the Russian Federation
explained that ethnic tensions in the Georgian autonomous regions, in
particular in Abkhazia and South Ossetia, had been exacerbated in the late
1980s with the coming to power in Georgia of nationalists seeking
independence, such as Zviad Gamsakhurdia, the first President of Georgia,
who launched a political programme with the slogan “Georgia for Georgians”;
whereas the Russian Federation contended that Georgia took steps to deprive
Abkhazia and South Ossetia of their respective autonomous status, which
actions “provoked a reaction on the part of the Abkhazians and Ossetians”;
whereas the Russian Federation claimed that “Tblisi responded by sending
military and paramilitary forces to Tskhinvali, the capital of South
Ossetia, in January 1991” leading to a state of civil war; whereas,
according to the Russian Federation, while on 9 April 1991 Georgia declared
its independence, it denied the right of self-determination to Abkhazia and
South Ossetia; and whereas, the Russian Federation added that a civil war
broke out in 1992 in Abkhazia, with “the clashes between the Georgian forces
and the Abkhaz militia caus[ing] many deaths on both sides”;
59. Whereas the Russian Federation indicated that “the violent phase of the
conflict in South Ossetia” came to an end by the signing on 24 June 1992 of
the Treaty between the Russian Federation and Georgia on the principles of
the settlement of the conflict; whereas the Russian Federation explained
that, under this Treaty, a joint peacekeeping force consisting of three
battalions - Russian, Georgian and Ossetian - was deployed in the region;
and whereas, according to the Russian Federation, “in the Georgian villages,
it was the Georgian forces that carried out the peacekeeping duties”;
60. Whereas the Russian Federation claimed that the hostilities in Abkhazia
were for the most part halted following the deployment of a Russian
contingent acting as the Collective Peacekeeping Force of the Commonwealth
of Independent States set up under the Moscow Agreement on a Ceasefire and
Separation of Forces signed between Georgia and Abkhazia in 1994, “under the
aegis of Russia”; whereas it added that in August 1993, the United Nations
Security Council, by its resolution 858 (1993), had decided to establish the
United Nations Observer Mission in Georgia (UNOMIG), whose task was to
verify respect for an earlier ceasefire agreement of 27 July 1993; and
whereas on 4 April 1994 Georgia, Abkhazia, the Russian Federation and the
United Nations High Commissioner for Refugees signed the quadripartite
agreement on the voluntary return of displaced persons;
61. Whereas the Russian Federation contended that “the mechanisms for
peacekeeping and negotiation received the support of international
governmental organizations such as the United Nations and the OSCE, and of
Georgia itself”;
62. Whereas the Russian Federation maintained that “progress was made in the
peace process until Mr. Saakashvili came to power [in Georgia] at the end of
2003”; whereas it asserted that, from May 2004, troops and special units of
the Georgian Ministry of the Interior were moved into the Georgian-Ossetian
zone of conflict, reserved strictly for the peacekeeping forces, and that in
August 2004 these troops bombarded Tskhinvali in an attempt to invade it;
whereas the Russian Federation claimed that in February 2005 President
Saakashvili formally renounced the ceasefire “which had been concluded
between the parties in November 2004 through the active mediation of
Russia”; and whereas, according to the Russian Federation, in Abkhazia
“progress in the settlement process was abruptly halted by the deployment of
the Georgian contingent in the Kodori gorge in 2006, in violation of all the
agreements and of the decisions of the United Nations”;
63. Whereas the Russian Federation asserted that it “had always acted in
accordance with its role as a mediator in the conflicts” and “ha[d]
continued to recognize the territorial integrity of Georgia, even after the
holding of referendums in the two regions in which the overwhelming majority
of Ossetians and Abkhazians voted for independence”;
64. Whereas the Russian Federation contended that the situation in the
Ossetian-Georgian conflict zone was suddenly aggravated on 1 and 2 August
2008 “when Georgian military forces bombarded residential areas of
Tskhinvali, causing a number of casualties”; whereas it claimed that on the
evening of 2 August and in the night of 3 August 2008, “Georgia openly
manoeuvred its troops in the area of Tskhinvali, moving its forces and heavy
armour towards the zone of conflict, which caused the civilian population to
take flight” and that, on 7 August 2008, Georgian military units launched a
massive attack on Tskhinvali, using heavy weapons in an indiscriminate way
and bombarding “residential areas of Tskhinvali, the hospital, schools and
children’s nurseries”; whereas, according to the Russian Federation, “much
of the South Ossetian capital was destroyed, and many other villages in
South Ossetia virtually razed to the ground”; whereas the Russian Federation
asserted that “the Georgian venture . . . has caused a real humanitarian
disaster”, as a result of which, in just two days, 34,000 refugees (a figure
which represents half the entire Ossetian population) were forced to flee
towards North Ossetia and across the Russian border;
65. Whereas the Russian Federation added that “the members of the Georgian
contingent of the Collective Peacekeeping Forces deliberately opened fire on
their Russian comrades in arms” and, as a result, the Russian Federation
“lost 15 peacekeeping soldiers, with another 70 wounded”;
66. Whereas the Russian Federation contended that “no one now disputes that
the crisis in August was caused by the attack of the Georgian forces”;
whereas the Russian Federation claimed that, “faced with this situation,
[it] made every effort in its power to resolve the crisis by diplomatic
means”; whereas the Russian Federation explained that it immediately
requested a meeting of the Security Council to bring the crisis to the
attention of the international community but that this démarche was “to no
avail”; whereas, the Russian Federation claimed that consequently, “Russia
had no choice but to send reinforcements to the conflict zone in order to
prevent further casualties among civilians and [Russian] peacekeeping
soldiers”; whereas, the Russian Federation pointed out that in accordance
with Article 51 of the United Nations Charter, it addressed a notification
to this effect to the Security Council; whereas, at the same time, “Russia
took urgent steps to provide humanitarian aid to the refugees and to other
civilians who found themselves in danger”; and whereas the Russian
Federation stressed that “this assistance was distributed without any
discrimination, thus to the Georgian victims as well”;
67. Whereas the Russian Federation stated that, on 12 August 2008, in
Moscow, the Presidents of the Russian Federation and France adopted six
principles for a political agreement “designed to bring about a permanent
ceasefire in the Ossetian-Georgian zone of conflict”; whereas, according to
the Russian Federation, these six “Medvedev-Sarkozy” principles “form a
sound basis for restoring international peace and security in this region”;
whereas the Russian Federation recalled that these six principles are as
follows:
“(1) non-use of force; (2) the absolute cessation of hostilities; (3) free
access to humanitarian assistance; (4) withdrawal of the Georgian armed
forces to their permanent positions; (5) withdrawal of the Russian armed
forces to the line where they were stationed prior to the beginning of
hostilities; pending the establishment of international mechanisms, the
Russian peacekeeping forces will take additional security measures; (6) an
international debate on ways to ensure security and stability in the
region”;
and whereas the Russian Federation stated that “the agreement protocol
laying down these principles was signed in turn by the parties to the
conflict, namely the leaders of South Ossetia, Abkhazia and Georgia, through
the intermediary of Russia and in the presence of the OSCE and the European
Union”;
68. Whereas the Russian Federation claimed that it “immediately began to
implement these six principles”; whereas it explained that the ceasefire was
announced on 12 August 2008, and that on 16 August 2008, the Russian forces
began their withdrawal which was completed around 2 September 2008; whereas,
according to the Russian Federation, at the current time, “there is no
military presence outside the security zones established in accordance with
the fifth Medvedev-Sarkozy principle, all the more so because those zones
coincide with the areas of responsibility of the peacekeeping forces as
defined before Georgia launched its offensive”;
69. Whereas, during the first round of oral argument, the Russian Federation
stated that, at that time, there were 3,750 Russian peacekeeping soldiers in
Abkhazia and 3,700 Russian troops in South Ossetia; whereas it pointed out
that in South Ossetia 272 soldiers were stationed at observation posts along
the perimeter of the security zone and, in addition, 180 soldiers were
divided among ten observation posts along the border between South Ossetia
and Georgia, while the remaining troops were engaged “in mine clearing,
assembling and evacuating military equipment, rebuilding civilian
infrastructure damaged in the hostilities . . . distributing humanitarian
aid and providing medical assistance” in order “to help South Ossetia to
return to normal life, including those Ossetian villages inhabited by
Georgians”; whereas, the Russian Federation indicated that, in accordance
with the fifth Medvedev-Sarkozy principle, “the additional security measures
taken by the Russian forces will be ended when an international mechanism is
put in place” and added that “Russia is involved in intensive negotiations
on the creation of such a mechanism”;
70. Whereas the Russian Federation contended that, until the present crisis,
it merely played the role of an impartial mediator in the ethnic conflicts
in the Caucasus, acting as a guarantor of peace and security in the region,
and had never “practised, encouraged or supported racial discrimination in
South Ossetia and Abkhazia”; and whereas it asserted that “the present
dispute between Georgia and Russia has nothing to do with racial or ethnic
discrimination”;
71. Whereas the Russian Federation stressed that, as was apparent from the
factual context of the case, the dispute brought by Georgia before the Court
did not relate to racial discrimination; and whereas the Russian Federation
claimed that, in the absence of a dispute between the Parties relating to
the interpretation or application of CERD, the Court manifestly lacked
jurisdiction to deal with the merits of the proceedings and thus the Request
for the indication of provisional measures should be rejected;
72. Whereas the Russian Federation argued that Articles 2 and 5 of CERD did
not apply extraterritorially and therefore the alleged acts invoked by
Georgia could not be governed by the Convention; and whereas the Russian
Federation asserted that in any event the preconditions for seisin of the
Court laid down in Article 22 of CERD had not been satisfied;
73. Whereas the Russian Federation contended that Georgia had failed to
demonstrate that the criteria for the grant of provisional measures under
Article 41 of the Statute had been met, namely, “irreparable prejudice to
the rights of Georgia” under CERD and urgency in the adoption of such
provisional measures;
74. Whereas the Russian Federation submitted that, in any event, the
requested provisional measures would not be justified since the Respondent
had not in the past, “does not at present, nor will it in the future,
exercise effective control over South Ossetia or Abkhazia”; whereas it
explained that the Russian Federation was not an occupying Power in South
Ossetia and Abkhazia, that it had never assumed the role of the existing
Abkhazian and South Ossetian authorities, “recognized as such by Georgia
itself”, which “have always retained their independence and continue to do
so”; and whereas the Russian Federation added that “the Russian presence,
apart from its participation in limited peace-keeping operations, has been
restricted in time and stretches only for a few weeks”;
75. Whereas the Russian Federation stated that “the conduct of South
Ossetian and Abkhazian authorities is not conduct by organs of the Russian
Federation” and explained that “South Ossetian or Abkhazian entities can
neither be qualified as de facto organs of the Respondent, nor does the
Respondent effectively direct and control them”; whereas it contended that,
although the situation had evolved since 7 August 2008, “there [were] no
indications that, as regards effective control, the relationship between the
Respondent on the one hand, and South Ossetia and Abkhazia on the other, had
changed in any legally relevant manner”;
76. Whereas, according to the Russian Federation, the Georgian Request for
the indication of provisional measures presupposes “a priori determinations
as to the role of the Russian Federation in the recent conflict”; whereas
the Russian Federation stated that the requested measures also presupposed
that the Russian Federation “had been and continued to be involved in the
acts enumerated in the Request”; whereas it further contended that, were the
Court to adopt these measures, “it would have to share the underlying
assumption” that the Russian Federation is indeed committing such acts and
is legally responsible for them, “without the Court previously having had
any chance to verify the underlying alleged facts in an orderly procedure
and with a full evidentiary hearing”; and whereas the Russian Federation
added that the requested measures, if adopted, “would impose upon the
Respondent very ambiguous and unclear obligations, which, in any case, it
[could not] comply with given that it is not . . . exercising effective
control with regard to the territory in question and besides, is also
legally not in a position to enforce the requested measures vis-à-vis South
Ossetia respectively Abkhazia”;
77. Whereas, finally, the Russian Federation argued that the provisional
measures requested by Georgia “may not be indicated since they would
necessarily prejudge the final outcome of the case”; whereas it asserted
that, according to the Court’s jurisprudence, “a major purpose of the
proceedings under Article 41 is to avoid prejudging in any manner whatsoever
the outcome of the claim on the merits”; and whereas the Russian Federation
added that “the very purpose of Article 41 is to preserve the respective
rights of both parties”;
78. Whereas the Russian Federation requested the Court “to declare that it
has no jurisdiction to adjudicate upon the Application of Georgia, to reject
the Request for provisional measures and to remove this case from the
General List”;
*
79. Whereas, in its second round of oral argument, Georgia restated its
position that “Georgia’s claims in its Application and the rights it asserts
in both the initial and amended Requests are grounded in the 1965 Convention
and in that Convention alone” and that “Georgia makes no claim here under
international humanitarian law or the jus ad bellum”; and whereas Georgia
affirmed its position that “the evidence that has been submitted is more
than sufficient to establish the facts of ongoing ethnic cleansing for the
purposes of a provisional measures hearing” and that “the risk of
irreparable harm to the ethnic Georgians who still remain in the Akhalgori
district of South Ossetia, the Gali district of Abkhazia, and the portion of
the Gori district that Russian military forces still occupy as their
so-called ‘buffer zone’”, is real and grave;
80. Whereas at the end of its second round of oral observations Georgia
requested the Court
“as a matter of urgency, to order the following provisional measures,
pending its determination of this case on the merits, in order to prevent
irreparable harm to the rights of ethnic Georgians under Articles 2 and 5 of
the Convention on Racial Discrimination:
(a) The Russian Federation shall take all necessary measures to ensure that
no ethnic Georgians or any other persons are subject to violent or coercive
acts of racial discrimination, including but not limited to the threat or
infliction of death or bodily harm, hostage-taking and unlawful detention,
the destruction or pillage of property, and other acts intended to expel
them from their homes or villages in South Ossetia, Abkhazia and/or adjacent
regions within Georgia;
(b) The Russian Federation shall take all necessary measures to prevent
groups or individuals from subjecting ethnic Georgians to coercive acts of
racial discrimination, including but not limited to the threat or infliction
of death or bodily harm, hostage-taking and unlawful detention, the
destruction or theft of property, and other acts intended to expel them from
their homes or villages in South Ossetia, Abkhazia and/or adjacent regions
within Georgia;
(c) The Russian Federation shall refrain from adopting any measures that
would prejudice the right of ethnic Georgians to participate fully and
equally in the public affairs of South Ossetia, Abkhazia and/or adjacent
regions of Georgia.
Georgia further requests the Court as a matter of urgency to order the
following provisional measures to prevent irreparable injury to the right of
return of ethnic Georgians under Article 5 of the Convention on Racial
Discrimination pending the Court’s determination of this case on the merits:
(d) The Russian Federation shall refrain from taking any actions or
supporting any measures that would have the effect of denying the exercise
by ethnic Georgians and any other persons who have been expelled from South
Ossetia, Abkhazia, and adjacent regions on the basis of their ethnicity or
nationality, their right of return to their homes of origin;
(e) The Russian Federation shall refrain from taking any actions or
supporting any measures by any group or individual that obstructs or hinders
the exercise of the right of return to South Ossetia, Abkhazia, and adjacent
regions by ethnic Georgians and any other persons who have been expelled
from those regions on the basis of their ethnicity or nationality;
(f) The Russian Federation shall refrain from adopting any measures that
would prejudice the right of ethnic Georgians to participate fully and
equally in public affairs upon their return to South Ossetia, Abkhazia, and
adjacent regions”;
and whereas Georgia also requested the Court to order that:
“The Russian Federation shall refrain from obstructing, and shall permit and
facilitate, the delivery of humanitarian assistance to all individuals in
the territory under its control, regardless of their ethnicity”;
*
81. Whereas, in its second round of oral argument, the Russian Federation
reiterated its position that there is no dispute between the Parties that
falls within the scope of CERD;
82. Whereas it noted a number of recent developments relating to the
situation in the zones of conflict; whereas, in particular, the Russian
Federation mentioned an updated ceasefire plan announced on 8 September 2008
following talks between Presidents Medvedev and Sarkozy in Moscow, and
quoted its highlights as contained in an Associated Press release as
follows:
“European Union Monitors: 200 European Union monitors to deploy to regions
surrounding South Ossetia and Abkhazia by October 1.
Russian Withdrawal: Russian peacekeeping forces to withdraw from posts
outside the Black Sea port Poti and the area near the town of Senaki within
seven days, on condition Georgia signs a pledge not to use force against the
breakaway province of Abkhazia. Full withdrawal of Russian peacekeepers from
regions surrounding South Ossetia and Abkhazia will take place within ten
days of deployment of EU monitors.
Georgian pullout: Georgian troops must return to their barracks by October
1.
International talks: International talks to begin on October 15 in Geneva;
agenda to include security and stability in South Caucasus and the question
of return of refugees”;
whereas the Russian Federation submitted to the Court the full text of the
plan; whereas it contended that the number of Russian troops stationed at
observation posts along the perimeter of the security zone had been reduced
to 195 since 8 September 2008; and whereas it stated that refugees and
displaced persons were returning to their places of residence;
83. Whereas at the end of its second round of oral observations the Russian
Federation summarized its position as follows:
“First: The dispute that the Applicant has tried to plead before this Court
is evidently not a dispute under the 1965 Convention. If there were a
dispute, it would relate to the use of force, humanitarian law, territorial
integrity, but in any case not to racial discrimination.
Second: Even if this dispute were under the 1965 Convention, the alleged
breaches of the Convention are not capable of falling under the provisions
of the said Convention, not the least because Articles 2 and 5 of the
Convention are not applicable extraterritorially.
Third: Even if such breaches occurred, they could not, even prima facie, be
attributable to Russia that never did and does not now exercise, in the
territories concerned, the extent of control required to overcome the set
threshold.
Fourth: Even if the 1965 Convention could be applicable, which . . . is not
the case, the procedural requirements of Article 22 of the 1965 Convention
have not been met. No evidence that the Applicant proposed to negotiate or
employ the mechanisms of the Committee on Racial Discrimination prior to
reference to this Court, has been nor could have been produced.
Fifth: With these arguments in mind, the Court manifestly lacks jurisdiction
to entertain the case.
Sixth: Should the Court, against all odds, find itself prima facie competent
over the dispute, we submit that the Applicant has failed to demonstrate the
criteria essential for provisional measures to be indicated. No credible
evidence has been produced to attest to the existence of an imminent risk of
irreparable harm, and urgency. The circumstances of the case definitely do
not require measures, in particular, in the light of the ongoing process of
post-conflict settlement. And the measures sought failed to take account of
the key factor going to discretion: the fact that the events of August 2008
were born out of Georgia’s use of force.
Finally: Provisional measures as they were formulated by the Applicant in
the Requests cannot be granted since they would impose on Russia obligations
that it is not able to fulfil. The Russian Federation is not exercising
effective control vis-à-vis South Ossetia and Abkhazia or any adjacent parts
of Georgia. Acts of organs of South Ossetia and Abkhazia or private groups
and individuals are not attributable to the Russian Federation. These
measures if granted would prejudge the outcome of the case”;
and whereas the Russian Federation requested the Court “to remove the case
introduced by the Republic of Georgia on 12 September 2008 from the General
List”;
***
84. Whereas the Court, under its Statute, does not automatically have
jurisdiction over legal disputes between States parties to that Statute or
between other States entitled to appear before the Court; whereas the Court
has repeatedly stated that one of the fundamental principles of its Statute
is that it cannot decide a dispute between States without the consent of
those States to its jurisdiction; and whereas the Court therefore has
jurisdiction only between States parties to a dispute who have accepted the
jurisdiction of the Court, either in general form or for the individual
dispute concerned;
85. Whereas, on a request for the indication of provisional measures, the
Court need not finally satisfy itself, before deciding whether or not to
indicate such measures, that it has jurisdiction on the merits of the case,
yet it may not indicate them unless the provisions invoked by the Applicant
appear, prima facie, to afford a basis on which the jurisdiction of the
Court might be founded;
86. Whereas Georgia at the present stage of the proceedings seeks to found
the jurisdiction of the Court solely on the compromissory clause contained
in Article 22 of CERD; and whereas the Court must now proceed to examine
whether the jurisdictional clause relied upon does furnish a basis for prima
facie jurisdiction to rule on the merits such as would allow the Court,
should it think that the circumstances so warranted, to indicate provisional
measures;
*
87. Whereas Georgia asserts that, as regards the Court’s jurisdiction
ratione personae, both Georgia and the Russian Federation are Members of the
United Nations and parties to the Statute of the Court; whereas it further
states that both Georgia and the Russian Federation are parties to CERD,
Georgia having deposited its instrument of accession on 2 June 1999 and the
Russian Federation “by virtue of its continuation of the State personality
of the USSR” which has been a party to CERD since 1969; and whereas Georgia
adds that “neither party maintains any reservation to article 22 of the
Convention”;
88. Whereas Georgia contends that, as regards the Court’s jurisdiction
ratione materiae, the object and purpose of CERD is to eliminate racial
discrimination in “all its forms and manifestations”; whereas it states that
the principle of non-discrimination on racial, including ethnic, grounds is
“concerned not merely with discrimination against individuals but with
collective discrimination against communities and with fundamental issues
relating to the composition of territorial communities, including the
granting and withdrawal of nationality”; whereas Georgia points out that
Article 22 of CERD confers upon the Court jurisdiction over “any dispute . .
. with respect to the interpretation or application of this Convention”;
whereas it stresses that the term “any dispute” concerns either the
“interpretation or application” of the Convention; whereas it concludes that
the Court has therefore “jurisdiction to pronounce on the scope of the
rights and responsibilities set out in the Convention but also upon the
consequences of breach of those rights and responsibilities”;
89. Whereas Georgia argues that ethnic discrimination is and has been a key
aspect in the conflicts in South Ossetia and Abkhazia; whereas it further
argues that this case is, in particular, about the ethnic cleansing, as a
form of racial discrimination, of ethnic Georgians and other minorities from
regions within Georgian territory, in particular, for present purposes, the
regions of Abkhazia, South Ossetia and the adjacent Gori district; whereas
it alleges that ethnic Georgians have been “targeted, and forcibly expelled
from these regions in great numbers and denied the right to return over the
course of more than a decade”; whereas it claims that the discrimination
against the ethnic Georgians communities in the said regions has escalated
following 8 August 2008;
90. Whereas Georgia contends in particular that, as a result of the Russian
Federation’s direct involvement in these ethnic conflicts and its essential
support for the separatist de facto authorities and militias in South
Ossetia and Abkhazia, “ethnic Georgians have been denied their fundamental
rights under Article 5 of the Convention” (see paragraph 107 below);
whereas, according to Georgia, the ethnic conflicts have escalated since
August 2008 and the situation concerning internally displaced persons in the
affected regions has significantly deteriorated; whereas Georgia contends
that it “advances claims against Russia based upon obligations contained in
the Convention on Racial Discrimination” and in this context “the means by
which Russia has apparently breached its obligations under the Convention
are irrelevant to the Court’s jurisdiction”; whereas Georgia states that
during the “Third Phase” of Russia’s intervention, that allegedly commenced
on 8 August 2008, “the means by which Russia has apparently acted in
violation of its obligations under the Convention” have included, inter
alia, the use of military force; and whereas Georgia concludes that, in its
Application, it “does not invoke as a cause of action any claim that that
force is unlawful under other instruments; it is pursuing remedies based on
claims arising in relation to Russia’s apparent breaches of this
Convention”;
91. Whereas Georgia asserts that, as regards the Court’s jurisdiction
ratione loci under Article 22 of CERD, it is necessary to distinguish
between two categories of claims advanced by Georgia in its Application:
first, “claims founded upon the acts or omissions of Russia’s State organs
within Russia itself”, and second,
“claims founded upon the acts or omissions of persons exercising Russia’s
governmental authority or other persons acting on the instructions or under
the control of Russia within Georgian territory, particularly in Abkhazia
and South Ossetia, as well as other areas of Georgia under de facto
occupation by Russian military forces”;
whereas, according to Georgia, no question concerning the spatial scope of
the obligations under the Convention arises in respect of the first category
of claims; and whereas Georgia contends that, in relation to the second
category of claims,
“the Court needs to be satisfied on a prima facie basis that Russia’s
obligations under the Convention extend to acts and omissions attributable
to Russia which have their locus within Georgia’s territory and in
particular in Abkhazia and South Ossetia”;
92. Whereas Georgia argues that CERD “does not contain a general provision
imposing a spatial limitation on the obligations it creates”; whereas
Georgia notes, in particular, that no spatial limitation is included in
Articles 2 and 5 which stipulate the “obligations of Russia and the
corresponding rights of Georgia” that are in issue before the Court for the
purposes of the Request for the indication of provisional measures; whereas
Georgia observes that even if the Convention were to be construed as
containing a general limitation limiting the spatial scope of its
obligations, “this would not preclude the claims asserted by Georgia in this
Application and in this Request” because “Abkhazia and South Ossetia have
been within the power or effective control of Russia since Georgia lost
control over those regions following the hostilities”; and whereas Georgia
adds that the Russian invasion and deployment of additional military forces
within Abkhazia and South Ossetia in August 2008 “has only served to
consolidate further its effective control over those regions”;
93. Whereas Georgia claims that, although certain aspects of the present
dispute, as indicated in the Application, predate Georgia’s accession to
CERD, there is no difficulty in establishing “ratione temporis jurisdiction”
in relation to what Georgia has described as the “Third Phase of Russia’s
Intervention in South Ossetia and Abkhazia”, which allegedly commenced in
August 2008; whereas Georgia stresses that
“the rights in issue which form the basis for the present Request for
provisional measures are rights under the Convention that Georgia submits
have been, and continue to be, violated by Russia during this third temporal
phase of the dispute”;
94. Whereas, turning to the question of negotiations or recourse to the
procedures provided for in CERD and referred to in Article 22, Georgia
affirms that the present dispute between the Parties has not been settled by
negotiation and that the procedures provided for in CERD “are not
designed to be exclusive or compulsory in respect of disputes concerning the
subject-matter of the Convention”; whereas, according to Georgia, “there is
no indication in the Convention that all the procedures in Part II are to be
exhausted before recourse is made to this Court” and therefore “it is not a
condition precedent for the Court’s jurisdiction”; and whereas Georgia adds
that, in any event, there have been extensive bilateral contacts between the
Parties and thus that, even if Article 22 of CERD were considered to lay
down a condition precedent for the seisin of the Court, that condition has
been satisfied;
*
95. Whereas the Russian Federation, referring to the basis of jurisdiction
invoked by Georgia, namely Article 22 of CERD, states that the dispute which
Georgia has brought before this Court is not a dispute on racial
discrimination under the said Convention, but rather a dispute relating to
the use of force, the principles of territorial integrity and
self-determination, non-interference in the internal affairs of States,
armed activities and international humanitarian law; and whereas,
accordingly, the Russian Federation is of the view that “the Court
manifestly lacks jurisdiction in the present case”;
96. Whereas the Russian Federation asserts that the object of the dispute
which Georgia seeks to have adjudicated by the Court “is not at all alleged
violations by Russia of its obligations under the 1965 Convention”, but
rather solely “allegations of unlawful actions in violation of international
humanitarian law in South Ossetia and Abkhazia”;
97. Whereas the Russian Federation stresses that, in the Applicant’s
presentation of the supposedly relevant facts, the latter deals only with
the various phases “of Russia’s intervention” in South Ossetia and Abkhazia
and that “it is indeed this ‘intervention’ which Georgia seeks to have
condemned by the Court”; and whereas the Russian Federation adds that
Georgia’s “Observations” concern only armed attacks, indiscriminate attacks
on civilians, the use of cluster bombs, declarations and recognition of
independence and the plight of refugees and displaced persons, but not
issues of racial discrimination; and whereas, according to Russia, the
dispute between the Parties relates to “the intervention that Georgia blames
the Russian Federation for undertaking in response to its own action with
respect to Abkhazia and South Ossetia and the alleged violations of the
rules of humanitarian law on that occasion”;
98. Whereas the Russian Federation asserts that, while “there is
unquestionably a dispute (or more than one dispute) between the Parties”,
this dispute does not concern the interpretation or application of CERD;
whereas, according to the Russian Federation, this follows from “the
pleadings submitted by Georgia and the file it has produced” as well as from
“the attitude taken by the Respondent since the very early 1990s”; whereas
the Russian Federation claims that, despite Georgia’s contention that a
dispute relating to CERD has existed between Georgia and the Russian
Federation since 1991, the Georgian Government has failed to mention this
dispute for 18 years in its relations with Russia, in the Security Council
or the OSCE, in the organ established under the Convention to deal with it
(the Committee on the Elimination of Racial Discrimination) as well as in
its recent request for interim measures, of 11 and 12 August 2008, to the
European Court of Human Rights, “which does not refer to Article 14 of the
Convention”; whereas the Russian Federation claims that “this failure to
act, this silence consistently maintained over so many years, indisputably
attests to the absence in the view of Georgia’s leaders . . . of any dispute
relating to the interpretation and application of the Convention”;
99. Whereas the Russian Federation notes that, since Georgia ratified CERD
in 1999 it has submitted three periodic reports to the Committee but that,
in none of these, did Georgia invoke any breaches by the Russian Federation
of its obligations under CERD, nor did it refer to any dispute with the
Russian Federation -- “no such dispute being mentioned either in the
periodic reports or during examination of them in the discussions between
Committee members and Georgia’s representatives”; whereas the Russian
Federation stresses that
“it is particularly telling that no mention whatsoever was made of any
dispute between Georgia and Russia over the application of the Convention
during the CERD’s most recent session, which concluded in Geneva on 15
August 2008, one week after the armed conflict broke out -- . . . at the
very time the Committee was formulating its concluding observations on the
Russian Federation’s eighteenth and nineteenth periodic reports”;
and whereas the Russian Federation observes that Georgia could have seised
the Committee pursuant to Article 11 while it was in session and could have
brought “its grievances to the Committee’s attention” in order to make use
of the “early warning procedure in place in the CERD since 1993, enabling
the Committee to react in urgent situations by seeking explanations from the
State party concerned or by requesting intervention by other United Nations
organs, including the Security Council or Secretary-General”;
100. Whereas the Russian Federation contends that the wording of Articles 2
and 5 of CERD demonstrates that the different obligations listed therein
“are clearly phrased as obligations to be implemented within each member
State” and that therefore these provisions “do not apply
extraterritorially”; whereas it states that “Articles 2 and 5 of CERD --
upon which Georgia relies -- do not bind the Respondent outside its own
territory”; whereas, the Russian Federation maintains that, accordingly,
“Russia’s extraterritorial conduct is not governed by Articles 2 and 5 of
CERD, hence those provisions cannot form the basis for the requested interim
order either”;
101. Whereas the Russian Federation argues that Article 22 of CERD lays down
procedural preconditions for the seisin of the Court, namely that only if
the dispute in question “is not settled by negotiation or by the procedures
expressly provided for in this Convention” can it be referred to the Court;
whereas the Russian Federation claims that “failing negotiation and/or
recourse to the procedures laid down by the Convention” the Court cannot be
seised of a dispute; and whereas, according to the Russian Federation, this
interpretation is endorsed by the travaux préparatoires, which show that
“referral to the Court was seen by those who drafted the Convention . . . as
a last resort when all other possibilities have proved ineffective”;
102. Whereas the Russian Federation claims that, in the present case, “there
has never been the slightest negotiation between the Parties on the
interpretation or application of the Convention on the elimination of racial
discrimination”, that the procedures laid down by CERD have not been
initiated either by the Russian Federation or by Georgia and that “even
after the start of hostilities, Georgia did not refer the matter to the
[Committee on the Elimination of Racial Discrimination] under Article 11 of
the Convention”; whereas, according to the Russian Federation, the question
of whether the negotiations and recourse to the Committee are cumulative or
alternative preconditions is irrelevant because “there has been neither
negotiation nor recourse to the procedure in Article 11 (or Article 14)” of
CERD; and whereas the Russian Federation asserts consequently that, as the
preconditions in Article 22 have not been met, Georgia has “no possibility
of unilaterally seising the Court” and that the Court thus has no
jurisdiction;
103. Whereas the Russian Federation concludes that, in the absence of a
dispute relating to CERD, the Court manifestly lacks jurisdiction and that,
even if such a dispute existed, in view of the fact that “it has in any case
never given rise to the slightest attempt to reach a settlement between the
Parties” and that “before Georgia filed its Application with the Court, on
12 August last, the Russian Federation never even suspected its existence”,
the lack of jurisdiction would also be manifest since the preconditions for
the seisin of the Court laid down in Article 22 have not been met;
*
104. Whereas Article 22 of CERD, which Georgia invokes as the basis of
jurisdiction of the Court in the present case, reads as follows:
“Any 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 Convention,
shall, at the request of any of the parties to the dispute, be referred to
the International Court of Justice for decision, unless the disputants agree
to another mode of settlement”;
105. Whereas, according to the information available from the
Secretary-General of the United Nations as depositary, Georgia and the
Russian Federation are parties to CERD; whereas Georgia deposited its
instrument of accession on 2 June 1999 without reservation; whereas the
Union of Soviet Socialist Republics deposited its instrument of ratification
on 4 February 1969 with a reservation to Article 22 of the Convention;
whereas, by a communication received by the depositary on 8 March 1989, the
Government of the Union of Soviet Socialist Republics notified the
Secretary-General that it had decided to withdraw the reservation relating
to Article 22; and whereas the Russian Federation, as the State continuing
the legal personality of the Union of Soviet Socialist Republics, is a party
to CERD without reservation;
106. Whereas the definition of racial discrimination in Article 1, paragraph
1, of CERD is as follows:
“any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise, on
an equal footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life”;
107. Whereas Articles 2 and 5 of CERD, violations of which are invoked by
Georgia in the current proceedings, are couched in the following terms:
“Article 2
1. States Parties condemn racial discrimination and undertake to pursue by
all appropriate means and without delay a policy of eliminating racial
discrimination in all its forms and promoting understanding among all races,
and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial
discrimination against persons, groups of persons or institutions and to
ensure that all public authorities and public institutions, national and
local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial
discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental,
national and local policies, and to amend, rescind or nullify any laws and
regulations which have the effect of creating or perpetuating racial
discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate
means, including legislation as required by circumstances, racial
discrimination by any persons, group or organization;
(e) Each State Party undertakes to encourage, where appropriate,
integrationist multiracial organizations and movements and other means of
eliminating barriers between races, and to discourage anything which tends
to strengthen racial division.
2. States Parties shall, when the circumstances so warrant, take, in the
social, economic, cultural and other fields, special and concrete measures
to ensure the adequate development and protection of certain racial groups
or individuals belonging to them, for the purpose of guaranteeing them the
full and equal enjoyment of human rights and fundamental freedoms. These
measures shall in no case entail as a consequence the maintenance of unequal
or separate rights for different racial groups after the objectives for
which they were taken have been achieved”;
“Article 5
In compliance with the fundamental obligations laid down in article 2 of
this Convention, States Parties undertake to prohibit and to eliminate
racial discrimination in all its forms and to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic
origin, to equality before the law, notably in the enjoyment of the
following rights:
(a) The right to equal treatment before the tribunals and all other organs
administering justice;
(b) The right to security of person and protection by the State against
violence or bodily harm, whether inflicted by government officials or by any
individual group or institution;
(c) Political rights, in particular the right to participate in elections --
to vote and to stand for election -- on the basis of universal and equal
suffrage, to take part in the Government as well as in the conduct of public
affairs at any level and to have equal access to public service;
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the
State;
(ii) The right to leave any country, including one's own, and to return to
one's country;
(iii) The right to nationality;
(iv) The right to marriage and choice of spouse;
(v) The right to own property alone as well as in association with others;
(vi) The right to inherit;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
(i) The rights to work, to free choice of employment, to just and favourable
conditions of work, to protection against unemployment, to equal pay for
equal work, to just and favourable remuneration;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social security and social
services;
(v) The right to education and training;
(vi) The right to equal participation in cultural activities;
(f) The right of access to any place or service intended for use by the
general public, such as transport hotels, restaurants, cafes, theatres and
parks”;
108. Whereas the Parties disagree on the territorial scope of the
application of the obligations of a State party under CERD; whereas Georgia
claims that CERD does not include any limitation on its territorial
application and that accordingly “Russia’s obligations under the Convention
extend to acts and omissions attributable to Russia which have their locus
within Georgia’s territory and in particular in Abkhazia and South Ossetia”;
whereas the Russian Federation claims that the provisions of CERD cannot be
applied extraterritorially and that in particular Articles 2 and 5 of CERD
cannot govern a State’s conduct outside its own borders;
109. Whereas the Court observes that there is no restriction of a general
nature in CERD relating to its territorial application; whereas it further
notes that, in particular, neither Article 2 nor Article 5 of CERD, alleged
violations of which are invoked by Georgia, contain a specific territorial
limitation; and whereas the Court consequently finds that these provisions
of CERD generally appear to apply, like other provisions of instruments of
that nature, to the actions of a State party when it acts beyond its
territory;
110. Whereas Georgia claims that the dispute it brings to the Court concerns
the interpretation and application of CERD; whereas the Russian Federation
contends that the dispute really relates to the use of force, principles of
non-intervention and self-determination and to violations of humanitarian
law; and whereas it is for the Court to determine prima facie whether a
dispute within the meaning of Article 22 of CERD exists;
111. Whereas the Parties differ on the question of whether the events which
occurred in South Ossetia and Abkhazia, in particular following 8 August
2008, have given rise to issues relating to legal rights and obligations
under CERD; whereas Georgia contends that the evidence it has submitted to
the Court demonstrates that events in South Ossetia and in Abkhazia have
involved racial discrimination of ethnic Georgians living in these regions
and therefore fall under the provisions of Articles 2 and 5 of CERD; whereas
it alleges that displaced ethnic Georgians, who have been expelled from
South Ossetia and Abkhazia, have not been permitted to return to their place
of residence even though the right of return is expressly guaranteed by
Article 5 of CERD; whereas Georgia claims in addition that ethnic Georgians
have been subject to violent attacks in South Ossetia since the 10 August
2008 ceasefire even though the right of security and protection against
violence or bodily harm is also guaranteed by Article 5 of CERD; whereas the
Russian Federation claims that the facts in issue relate exclusively to the
use of force, humanitarian law and territorial integrity and therefore do
not fall within the scope of CERD;
112. Whereas, in the view of the Court, the Parties disagree with regard to
the applicability of Articles 2 and 5 of CERD in the context of the events
in South Ossetia and Abkhazia; whereas, consequently, there appears to exist
a dispute between the Parties as to the interpretation and application of
CERD; whereas, moreover, the acts alleged by Georgia appear to be capable of
contravening rights provided for by CERD, even if certain of these alleged
acts might also be
covered by other rules of international law, including humanitarian law;
whereas this is sufficient at this stage to establish the existence of a
dispute between the Parties capable of falling within the provisions of
CERD, which is a necessary condition for the Court to have prima facie
jurisdiction under Article 22 of CERD;
113. Whereas the Court, having established that such a dispute between the
Parties exists, still needs to ascertain whether the procedural conditions
set out in Article 22 of the Convention have been met, before deciding
whether or not it has prima facie jurisdiction to deal with the case and
accordingly has also the power to indicate provisional measures if the
circumstances are found so to require; whereas it is recalled that Article
22 provides that a dispute relating to the interpretation or application of
CERD may be referred to the Court if it “is not settled by negotiation or by
the procedure expressly provided for in this Convention”; whereas Georgia
claims that this phrase is descriptive of the fact that a dispute has not so
been settled and does not represent conditions to be exhausted before the
Court can be seized of the dispute; and whereas, according to Georgia,
bilateral discussions and negotiations relating to the issues which form the
subject-matter of the Convention have been held between the Parties;
whereas, for its part, the Russian Federation argues that pursuant to
Article 22 of CERD, prior negotiations or recourse to the procedures under
CERD constitute an indispensable precondition for the seisin of the Court;
and whereas it stresses that no negotiations have been held between the
Parties on issues relating to CERD nor has Georgia, in accordance with the
procedures envisaged in the Convention, brought any such issues to the
attention of the Committee on the Elimination of Racial Discrimination;
114. Whereas the structure of Article 22 of CERD is not identical to that in
certain other instruments which require that a period of time should have
elapsed or that arbitration should have been attempted before initiation of
any proceedings before the Court; whereas the phrase “any dispute . . .
which is not settled by negotiation or by the procedure expressly provided
for in this Convention” does not, on its plain meaning, suggest that formal
negotiations in the framework of the Convention or recourse to the procedure
referred to in Article 22 thereof constitute preconditions to be fulfilled
before the seisin of the Court; whereas however 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;
115. Whereas it is apparent from the case file that such issues have been
raised in bilateral contacts between the Parties, and, that these issues
have manifestly not been resolved by negotiation prior to the filing of the
Application; whereas, in several representations to the United Nations
Security Council in the days before the filing of the Application, those
same issues were raised by Georgia and commented upon by the Russian
Federation; whereas therefore the Russian Federation was made aware of
Georgia’s position in that regard; and whereas the fact that CERD has not
been specifically mentioned in a bilateral or multilateral context is not an
obstacle to the seisin of the Court on the basis of Article 22 of the
Convention;
116. Whereas Article 22 of CERD refers also to “the procedures expressly
provided for” in the Convention; whereas, according to these procedures, “if
a State Party considers that another
State Party is not giving effect to the provisions of this Convention” the
matter may properly be brought to the attention of the Committee on the
Elimination of Racial Discrimination; whereas the Court notes that neither
Party claims that the issues in dispute have been brought to the attention
of the Committee;
117. Whereas the Court, in view of all the foregoing, considers that, prima
facie, it has jurisdiction under Article 22 of CERD to deal with the case to
the extent that the subject-matter of the dispute relates to the
“interpretation or application” of the Convention; and whereas the Court may
accordingly address the present Request for the indication of provisional
measures;
**
118. Whereas the power of the Court to indicate provisional measures under
Article 41 of the Statute of the Court has as its object the preservation of
the respective rights of the parties pending the decision of the Court, in
order to ensure that irreparable prejudice shall not be caused to rights
which are the subject of dispute in judicial proceedings; and whereas it
follows that the Court must be concerned to preserve by such measures the
rights which may subsequently be adjudged by the Court to belong either to
the Applicant or to the Respondent (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8
April 1993, I.C.J. Reports 1993, p. 19, para. 34; Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures,
Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 35); whereas a
link must therefore be established between the alleged rights the protection
of which is the subject of the provisional measures being sought, and the
subject of the proceedings before the Court on the merits of the case;
119. Whereas, according to Georgia’s Application, the rights that Georgia
and its nationals may have on the basis of Articles 2, 3, 4, 5 and 6 of CERD
constitute the subject of the proceedings pending before the Court on the
merits of the case;
120. Whereas the legal rights which Georgia seeks to have protected by the
indication of provisional measures are enumerated in the Request of Georgia
for the indication of such measures filed on 14 August 2008 as follows:
“(a) the right to ensure that the Russian Federation and separatist
authorities under its direction and control refrain from any further act or
practice of ethnic discrimination against Georgian citizens and that
civilians are fully protected against such acts in territories under the
occupation or effective control of Russian forces, pursuant to Article 2
(1);
(b) the right to ensure that the Russian Federation and separatist
authorities under its direction and control refrain from any further acts
resulting in the recognition of or rendering permanent the ethnic
segregation of Georgian citizens through forced displacement or denial of
the right of IDPs to return to their homes in South Ossetia, Abkhazia, and
adjacent territories under the occupation or effective control of Russian
forces, pursuant to Article 3;
(c) the right to ensure that the Russian Federation and separatist
authorities under its direction and control refrain from any further acts
violating the enjoyment by Georgian citizens of fundamental human rights
including in particular the right to security of the person and protection
against violence or bodily harm, the right to freedom of movement and
residence within the borders of Georgia, the right of IDPs to return to
their homes under conditions of safety, and the right to protection of homes
and property against pillage and destruction, pursuant to Article 5; and
(d) the right to ensure that the Russian Federation and separatist
authorities under its direction and control refrain from any acts denying to
Georgian citizens under their jurisdiction effective protection and remedies
against ethnic discrimination and violations of human rights pursuant to
Article 6”;
121. Whereas in its Amended Request (see paragraph 41 above), Georgia,
referring to Articles 2 and 5 of CERD, states that it seeks to protect “the
right to security of person and protection against violence or bodily harm”
and “the right of return” provided for in the above-mentioned Articles of
the Convention;
122. Whereas, in its Amended Request, Georgia argues with regard to these
rights, in particular, as follows:
“By its Application filed on 12 August 2008, Georgia is seeking, inter alia,
the Court’s order directing the Russian Federation to take all necessary
measures to ensure that the remaining ethnic Georgian populations of South
Ossetia and Abkhazia are not subject to discriminatory treatment contrary to
Articles 2 and 5 of CERD. Pending the Court’s consideration of the merits of
Georgia’s claims and its request for relief, Georgia respectfully requests
the Court to indicate provisional measures to prevent irreparable prejudice
to the right of ethnic Georgians to be free from discriminatory treatment,
in particular violent or otherwise coercive acts, including but not limited
to the threat or infliction of death or bodily harm, hostage-taking and
detention based on ethnicity, the destruction and pillage of property, and
other acts intended to expel them from their homes in South Ossetia,
Abkhazia, and adjacent regions located within Georgian territory.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
In its Application, Georgia seeks, inter alia, the Court’s order to direct
the Russian Federation to take all necessary measures to permit and
facilitate the return of displaced ethnic Georgians to South Ossetia and
Abkhazia in conditions of safety and security in recognition of the right of
return guaranteed under Article 5 of CERD. Pending the Court’s consideration
of the merits of Georgia’s claims under CERD and its request for relief,
Georgia respectfully requests the Court to indicate provisional measures to
prevent irreparable prejudice to the right of return of ethnic Georgians to
South Ossetia and Abkhazia”;
123. Whereas at the hearings Georgia reiterated that the rights for which it
“seeks protection both in its Amended Request for provisional measures and
in its Application are the specific rights guaranteed by Articles 2 and 5 of
the Convention”; and whereas it referred to these rights as follows:
“Under Article 2, paragraph 1 (a) and (b), Georgia has a right to have
Russia, as a State party to the Convention, ‘engage in no act or practice of
racial discrimination against persons, groups of persons or institutions’
and to undertake ‘not to sponsor, defend or support racial discrimination by
any persons or organizations’. Under paragraph 1 (d) of Article 2, Georgia
also has the right to have Russia ‘prohibit and bring to an end, by all
appropriate means . . . racial discrimination by any persons, group or
organization’. The specific rights protected by Article 5 are: first, the
right under Article 5 (b) ‘to security of person and protection by the State
against violence or bodily harm, whether inflicted by government officials
or by any individual, group or institution’; second, the right under Article
5 (d) (i) ‘to freedom of movement and residence within the border of the
State’; third, the right under Article 5 (d) (ii) ‘to return’; fourth, the
right under Article 5 (d) (iii) ‘to nationality’; and fifth, the right under
Article 5 (d) (v) ‘to own property’”;
124. Whereas the Russian Federation contends that the required connection
between the rights which Georgia seeks to protect by its Request for the
indication of provisional measures and the subject of the proceedings on the
merits is lacking;
125. Whereas, in particular, it explains that “the measures listed in
subparagraphs (a) and (b) of the Request, if ever adopted, would require
Russia to take active steps to ensure or to prevent certain results from
happening in the areas concerned” thereby presupposing that Articles 2 and 5
of CERD contain an obligation to prevent racial discrimination; whereas the
Russian Federation argues that, as is apparent from the wording of Articles
2 and 5 of CERD, nowhere in these provisions “do States undertake to prevent
breaches of the Convention” and that thus there is “no duty to prevent
racial discrimination by other actors”; whereas, according to the Russian
Federation, owing to this fact, a duty to prevent racial discrimination --
or specific, positive measures said to flow from such duty - cannot form the
subject of the proceedings on the merits; and whereas, therefore, any
related right cannot be protected by the indication of provisional measures;
126. Whereas the Court notes that Articles 2 and 5 of CERD are intended to
protect individuals from racial discrimination by obliging States parties to
undertake certain measures specified therein; whereas the Court considers
that it is not appropriate, in the present phase, for it to pronounce on the
issue of whether Articles 2 and 5 of CERD imply a duty to prevent racial
discrimination by other actors; whereas States parties to CERD have the
right to demand compliance by a State party with specific obligations
incumbent upon it under Articles 2 and 5 of the Convention; whereas there is
a correlation between respect for individual rights, the
obligations of States parties under CERD and the right of States parties to
seek compliance therewith; whereas in the view of the Court the rights which
Georgia invokes in, and seeks to protect by, its Request for the indication
of provisional measures have a sufficient connection with the merits of the
case it brings for the purposes of the current proceedings; and whereas it
is upon the rights thus claimed that the Court must focus its attention in
its consideration of Georgia’s Request for the indication of provisional
measures;
127. Whereas the Court, having established the existence of a basis on which
its jurisdiction might be founded, ought not to indicate measures for the
protection of any disputed rights other than those which might ultimately
form the basis of a judgment in the exercise of that jurisdiction; whereas
accordingly the Court will confine its examination of the measures requested
by Georgia, and of the grounds asserted for the request for such measures,
to those which appear to fall within the scope of CERD (cf. Application of
the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional
Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19);
**
128. Whereas the power of the Court to indicate provisional measures under
Article 41 of its Statute “presupposes that irreparable prejudice shall not
be caused to rights which are the subject of a dispute in judicial
proceedings” (LaGrand (Germany v. United States of America), Provisional
Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), pp. 14-15, para.
22);
129. Whereas the power of the Court to indicate provisional measures will be
exercised only if there is urgency in the sense that there is a real risk
that action prejudicial to the rights of either party might be taken before
the Court has given its final decision (see, for example, Passage through
the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July
1991, I.C.J. Reports 1991, p. 17, para. 23; Certain Criminal Proceedings in
France (Republic of the Congo v. France), Provisional Measure, Order of 17
June 2003, I.C.J. Reports 2003, p. 107, para. 22; Pulp Mills on the River
Uruguay (Argentina v. Uruguay), Preliminary Objections, Order of 23 January
2007, p. 11, para. 32); and whereas the Court thus has to consider whether
in the current proceedings such urgency exists;
*
130. Whereas Georgia argues that, in view of the conduct of the Russian
Federation in South Ossetia, Abkhazia, and adjacent regions, provisional
measures are urgently needed because the ethnic Georgians in these areas
“are at imminent risk of violent expulsion, death or personal injury,
hostage-taking and unlawful detention, and damage to or loss of their homes
and other property” and “in addition, the prospects for the return of those
ethnic Georgians who have already been forced to flee are rapidly
deteriorating”;
131. Whereas Georgia contends that reports of international and
non-governmental organizations and witness statements, which are consistent
with and corroborate these reports, provide evidence of “the ongoing,
widespread and systematic abuses of rights of ethnic Georgians under the
Convention” in South Ossetia, Abkhazia and other parts of Georgia “presently
occupied by Russian forces” and allegedly show that ethnic Georgians who
remain in these areas “are at imminent risk of violent attack and forced
expulsion”; whereas, according to Georgia, there is evidence of a “real risk
of continued ethnic cleansing by Russian military forces and separatist
militias operating behind Russian lines, especially in those areas that
still have significant Georgian populations”; and whereas Georgia asserts
that this evidence also “shows a present failure, and a risk of continuing
failure, on the part of the Russian authorities to ensure that rights for
ethnic Georgians under the Convention are respected”, particularly the
rights of Georgians who still live in South Ossetia, Abkhazia and other
regions of Georgia “presently occupied by Russian forces”, and the rights of
Georgians who wish to return to their homes in those regions;
132. Whereas Georgia claims that “the rights in dispute are threatened with
harm that by its very nature is irreparable” because “no satisfaction, no
award of reparations, could ever compensate for the extreme forms of
prejudice” to those rights in the current proceedings; whereas it states
that the risk of irreparable prejudice “is not necessarily removed by a
suspension or cessation of the military hostilities that initially provided
the context in which the risk was generated”; and whereas Georgia contends
that “the widespread violations of the rights of ethnic Georgians under the
Convention grew even worse after military engagements ceased, that they have
continued unabated since then, and that they are continuing still”;
133. Whereas Georgia claims that “the risk of irreparable prejudice to the
rights at issue in this case is not only imminent, [but] is already
happening”, which is evidenced by the fact that “the ethnic cleansing and
other forms of prohibited discrimination carried out against Georgians in
Abkhazia, South Ossetia and other regions occupied by Russian forces are
still occurring, and that they are likely to continue to occur and to
recur”;
134. Whereas, for its part, the Russian Federation states that “the criteria
of Article 41 are not met in this case”; whereas it submits that “Georgia
has not established that any rights opposable to Russia under Articles 2 and
5 of CERD -- however broadly drawn -- are exposed to ‘serious risk’ of
irreparable damage”;
135. Whereas, with reference to the period characterised by Georgia as “the
first and second phases of Russia’s intervention in South Ossetia and
Abkhazia”, the Russian Federation draws attention to the documents in the
case file, in particular “statements of Georgian Ministers, decisions and
international agreements to which Georgia is a party, in which Russia’s role
and the role of the peacekeeping forces are consented to and recognized as
wholly beneficial”;
136. Whereas, with reference to the events of August 2008, the Russian
Federation argues that “the facts that can be relied on with reasonable
certitude” go against the existence of a serious risk to the rights Georgia
now claims, for the reasons that, first, armed actions have led to “deaths
of the armed forces of all parties concerned, deaths of civilians of all
ethnicities, and a mass displacement of persons of all ethnicities”, and,
second, that “the armed actions have now ceased, and civilians of all
ethnicities are returning to some, although not yet all, of the former
conflict zones”; and whereas, so far as concerns the principle of return,
the Russian Federation refers to the fact that “on 15 August, in discussions
with the United Nations High Commissioner for Refugees, the Russian Foreign
Minister stated his agreement on the principle of the non-discriminatory
nature of the right of return for all civilians forced to flee”;
137. Whereas the Russian Federation asserts that “the case on urgency can
only be built on the events subsequent to 7 August 2008” in light of the
fact that before this date there was “evidently no urgency of the requisite
degree -- as Georgia had never even raised complaints of violations of the
CERD with Russia”; whereas it further argues that any urgency to be found in
the events occurring after 7 August 2008 relates to “the armed actions and
their repercussions since that date”; whereas the Russian Federation
explains that “major developments within the course of that period . . .
tell against the case for urgency”; whereas it refers to the ceasefire
announced by the Russian Federation on 12 August 2008 and to the six
principles for the peaceful settlement of the conflict adopted by the
Presidents of the Russian Federation and France on the same day and
subsequently signed on 13-16 August 2008 by the President of Georgia and
leaders of South Ossetia and Abkhazia, “through the intermediary of Russia
and in the presence of the OSCE and the European Union”; and whereas the
Russian Federation claims that since then “the armed actions are at an end
and large numbers of IDPs have in fact already returned to Gori and villages
nearby”;
138. Whereas the Russian Federation contends that Georgia’s assertions that
the Russian Federation is continuing to discriminate against ethnic
Georgians in Abkhazia, South Ossetia and neighbouring areas by threatening
the rights of ethnic Georgians to security and the right of return, and that
Russia is actively supporting groups or individuals that continue to
perpetrate acts of violence against ethnic Georgians, are not supported by
the documents submitted by Georgia itself;
139. Whereas the Russian Federation argues that “the case on urgency in
relation to Abkhazia is built almost exclusively on inference, and that
[this] is not a sound basis for a provisional measures award”;
140. Whereas the Russian Federation claims that its “positive démarches
before the OSCE . . . with the European Union and President Sarkozy, are
addressing precisely the problem that is being put before [the Court] as the
basis for urgent provisional measures”; whereas the Russian Federation notes
that, in accordance with the further principles announced on 8 September
2008, 200 European Union monitors will be deployed “into the South Ossetian
and Abkhaz buffer zones, and Russian peacekeeping troops [will] make a full
withdrawal ten days later”; whereas the Russian Federation asserts that “the
plan provides that the United Nations and
OSCE observers will also continue to carry out their mandates”; whereas the
Russian Federation states that further security and stability issues and the
question of the return of refugees are to be addressed in international
talks, “which are imminent and are obviously to be at a very high level”;
whereas the Russian Federation contends that the facts “contradict Georgia’s
assertion of an ongoing worsening crisis”; and whereas it points out that,
while “there has been a humanitarian crisis to be sure . . . it is part of
the recent armed conflict and is being addressed in that context at the
highest levels”;
*
141. Whereas the Court is not called upon, for the purpose of its decision
on the Request for the indication of provisional measures, to establish the
existence of breaches of CERD, but to determine whether the circumstances
require the indication of provisional measures for the protection of rights
under CERD; whereas it cannot at this stage make definitive findings of
fact, nor finding of attribution; and whereas the right of each Party to
submit arguments in respect of the merits remains unaffected by the Court’s
decision on the Request for the indication of provisional measures;
142. Whereas, nevertheless, the rights in question in these proceedings, in
particular those stipulated in Article 5, paragraphs (b) and (d) (i) of
CERD, are of such a nature that prejudice to them could be irreparable;
whereas the Court considers that violations of the right to security of
persons and of the right to protection by the State against violence or
bodily harm (Article 5, paragraph (b)) could involve potential loss of life
or bodily injury and could therefore cause irreparable prejudice; whereas
the Court further considers that violations of the right to freedom of
movement and residence within a State’s borders (Article 5, paragraph (d)
(i)) could also cause irreparable prejudice in situations where the persons
concerned are exposed to privation, hardship, anguish and even danger to
life and health; and whereas the Court finds that individuals forced to
leave their own place of residence and deprived of their right of return
could, depending on the circumstances, be subject to a serious risk of
irreparable prejudice;
143. Whereas the Court is aware of the exceptional and complex situation on
the ground in South Ossetia, Abkhazia and adjacent areas and takes note of
the continuing uncertainties as to where lines of authority lie; whereas,
based on the information before it in the case file, the Court is of the
opinion that the ethnic Georgian population in the areas affected by the
recent conflict remains vulnerable;
Whereas the situation in South Ossetia, Abkhazia and adjacent areas in
Georgia is unstable and could rapidly change; whereas, given the ongoing
tension and the absence of an overall settlement to the conflict in this
region, the Court considers that the ethnic Ossetian and Abkhazian
populations also remain vulnerable;
Whereas, while the problems of refugees and internally displaced persons in
this region are currently being addressed, they have not yet been resolved
in their entirety;
Whereas, in light of the foregoing, with regard to these above-mentioned
ethnic groups of the population, there exists an imminent risk that the
rights at issue in this case mentioned in the previous paragraph may suffer
irreparable prejudice;
144. Whereas States parties to CERD “condemn racial discrimination and
undertake to pursue by all appropriate means and without delay a policy of
eliminating racial discrimination in all its forms”; whereas in the view of
the Court, in the circumstances brought to its attention in which there is a
serious risk of acts of racial discrimination being committed, Georgia and
the Russian Federation, whether or not any such acts in the past may be
legally attributable to them, are under a clear obligation to do all in
their power to ensure that any such acts are not committed in the future;
145. Whereas the Court is satisfied that the indication of measures is
required for the protection of rights under CERD which form the
subject-matter of the dispute; and whereas the Court has the power, under
its Statute, when a request for provisional measures has been made, to
indicate measures that are in whole or in part other than those requested,
or measures that are addressed to the party which has itself made the
request; whereas Article 75, paragraph 2, of the Rules of Court specifically
refers to this power of the Court; and whereas the Court has already
exercised this power on several occasions in the past (Armed Activities on
the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. 128,
para. 43; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon
v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports
1996 (I), p. 24, para. 48; Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia (Serbia and Montenegro), Provisional Measures, Order of 8 April
1993, I.C.J. Reports 1993, p. 22, para. 46);
146. Whereas the Court, having found that the indication of provisional
measures is required in the current proceedings, has considered the terms of
the provisional measures requested by Georgia; whereas the Court does not
find that, in the circumstances of the case, the measures to be indicated
are to be identical to those requested by Georgia; whereas the Court, having
considered the material before it, considers it appropriate to indicate
measures addressed to both Parties;
*
147. Whereas the Court’s “orders on provisional measures under Article 41
[of the Statute] have binding effect” (LaGrand (Germany v. United States of
America), Judgment, I.C.J. Reports 2001, p. 506, para. 109) and thus create
international legal obligations which both Parties are required to comply
with (Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 258, para. 263);
**
148. Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case or any questions relating to the admissibility of the
Application, or relating to the merits themselves; and whereas it leaves
unaffected the right of the Governments of Georgia and the Russian
Federation to submit arguments in respect of those questions;
***
149. For these reasons,
THE COURT, reminding the Parties of their duty to comply with their
obligations under the International Convention on the Elimination of All
Forms of Racial Discrimination,
Indicates the following provisional measures:
A. By eight votes to seven,
Both Parties, within South Ossetia and Abkhazia and adjacent areas in
Georgia, shall
(1) refrain from any act of racial discrimination against persons, groups of
persons or institutions;
(2) abstain from sponsoring, defending or supporting racial discrimination
by any persons or organizations,
(3) do all in their power, whenever and wherever possible, to ensure,
without distinction as to national or ethnic origin,
(i) security of persons;
(ii) the right of persons to freedom of movement and residence within the
border of the State;
(iii) the protection of the property of displaced persons and of refugees;
(4) do all in their power to ensure that public authorities and public
institutions under their control or influence do not engage in acts of
racial discrimination against persons, groups of persons or institutions;
IN FAVOUR: President Higgins; Judges Buergenthal, Owada, Simma, Abraham,
Keith, Sepúlveda-Amor, Judge ad hoc Gaja;
AGAINST: Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Tomka,
Bennouna, Skotnikov;
B. By eight votes to seven,
Both Parties shall facilitate, and refrain from placing any impediment to,
humanitarian assistance in support of the rights to which the local
population are entitled under the International Convention on the
Elimination of All Forms of Racial Discrimination;
IN FAVOUR: President Higgins; Judges Buergenthal, Owada, Simma, Abraham,
Keith, Sepúlveda-Amor; Judge ad hoc Gaja;
AGAINST: Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Tomka,
Bennouna, Skotnikov;
C. By eight votes to seven,
Each Party shall refrain from any action which might prejudice the rights of
the other Party in respect of whatever judgment the Court may render in the
case, or which might aggravate or extend the dispute before the Court or
make it more difficult to resolve;
IN FAVOUR: President Higgins; Judges Buergenthal, Owada, Simma, Abraham,
Keith, Sepúlveda-Amor; Judge ad hoc Gaja;
AGAINST: Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Tomka,
Bennouna, Skotnikov;
D. By eight votes to seven,
Each Party shall inform the Court as to its compliance with the above
provisional measures;
IN FAVOUR: President Higgins; Judges Buergenthal, Owada, Simma, Abraham,
Keith, Sepúlveda-Amor; Judge ad hoc Gaja;
AGAINST: Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Tomka,
Bennouna, Skotnikov.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this fifteenth day of October, two thousand and
eight, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of Georgia and the
Government of the Russian Federation, respectively.
(Signed) Rosalyn HIGGINS,
President.
(Signed) Philippe COUVREUR,
Registrar.
Vice-President AL-KHASAWNEH and Judges RANJEVA, SHI, KOROMA, TOMKA, BENNOUNA
and SKOTNIKOV append a joint dissenting opinion to the Order of the Court;
Judge ad hoc GAJA appends a declaration to the Order of the Court.
(Initialled) R. H.
(Initialled) Ph. C.
JOINT DISSENTING OPINION OF VICE-PRESIDENT AL-KHASAWNEH AND JUDGES RANJEVA,
SHI, KOROMA, TOMKA, BENNOUNA AND SKOTNIKOV
1. We have regretfully been obliged to vote against the Order granting
provisional measures, persuaded as we are that the conditions for the
adoption of such measures laid down in Article 41 of the Statute and by the
jurisprudence of the Court are not met in the present case. Needless to say,
our vote should not be construed as support for exonerating the Parties from
their obligations either under the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD) or under
international law more generally. On the contrary, we consider that the
Parties are under a continuing duty to conduct themselves in conformity with
their international obligations.
2. The power of the Court to indicate provisional measures is inherent in
its judicial function, as it enables the Court to ensure, in accordance with
the circumstances, that the very subject of the dispute submitted to it be
preserved before the Court renders its judgment. It is for this reason that
the Court has full scope to indicate provisional measures exceeding those
requested or to decide proprio motu. As these measures are binding on both
Parties (LaGrand (Germany v. United States), Judgment, I.C.J. Reports 2001,
p. 506, para. 109), the Court must be all the more vigilant in assessing
whether the conditions required for their indication have been met.
3. In the present case, as has been highlighted by the Court, the rights for
which Georgia claims protection, by way of a request for provisional
measures, are “rights . . . that Georgia submits have been . . . violated by
Russia” during what it describes as the “Third Phase of Russia’s
intervention in South Ossetia and Abkhazia” (Order, paragraph 93) and which,
according to it, dates back to the month of August 2008 (that is, beginning
on 7-8 August, when armed conflict erupted between the two Parties).
It is curious, to say the least, that Georgia, which has cited acts of
racial discrimination allegedly committed by the Russian Federation since
the early 1990s in violation of CERD, has awaited the armed conflict with
Russia (and South Ossetian forces) to which it is a party immediately to
seise the Court of a dispute relating to the interpretation and the
application of that Convention.
4. Be that as it may, and even when facing a request arising under such
conditions, the Court is bound to ascertain whether the conditions necessary
for the indication of provisional measures here obtain.
5. Georgia invokes Article 22 of CERD as the basis for the jurisdiction of
the Court; that Article provides:
“Any 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 Convention,
shall, at the request of any of the parties to the dispute, be referred to
the International Court of Justice for decision, unless the disputants agree
to another mode of settlement.” (Order, paragraph 2.)
6. It is not disputed that both Georgia and the Russian Federation are
parties to the said Convention without reservations and are bound by Article
22 thereof. However, regarding jurisdiction under Article 22 of the
Convention, the Parties differ on two questions:
(1) whether there is a dispute between them “with respect to the
interpretation or application of this Convention”;
(2) whether the precondition that the dispute “is not settled by negotiation
or the procedures expressly provided for in this Convention” has been met in
the present case.
7. We shall turn to the first point of disagreement between the Parties as
regards the jurisdiction of the Court in the present case, namely, the
existence of a dispute concerning the interpretation or application of CERD.
8. Such a dispute must exist prior to the seisin of the Court. It is for
this reason that the Court must consider whether the two Parties have
opposing views with regard to the interpretation or application of the
Convention. Admittedly, it is established that no such opposition was ever
manifested before 8 August; but was it manifested after 7-8 August and the
outbreak of hostilities between the two States? In other words, are the
violent acts which Georgia imputes to Russia likely to “com[e] within the
provisions” of CERD, to reprise the terminology which the Court employed to
decline jurisdiction prima facie in its Order of 2 June 1999 on the Legality
of Use of Force (Yugoslavia v. Belgium) (Provisional Measures, Order of 2
June 1999, I.C.J. Reports 1999 (I), p. 138, para. 41)? The Court there
considered that “the threat or use of force against a State cannot in itself
constitute an act of genocide within the meaning of Article II of the
Genocide Convention” (ibid., para. 40).
9. The same could be said of the case at hand; Russia’s armed activities
after 8 August cannot, in and of themselves, constitute acts of racial
discrimination in the sense of Article 1 of CERD unless it is proven that
they were aimed at establishing a “distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin”.
However, the circumstances of the armed confrontation triggered in the night
of 7 to 8 August were such that this cannot be the case. Admittedly, the
ensuing armed conflict concerned a region in which serious ethnic tensions
could lead to violations of humanitarian law, but it is difficult to
consider that the armed acts in question, in and of themselves and whether
committed by Russia or Georgia, fall within the provisions of CERD.
10. Moreover, the majority, unable to find any evidence that the acts
alleged by Georgia fall within the provisions of CERD, has been content to
observe merely that a dispute appears to exist as to the interpretation and
application of CERD because the two Parties have manifested their
disagreement over the applicability of Articles 2 and 5 of the Convention.
In other words, an argument expounded during oral proceedings has mutated
into evidence of the existence of a dispute between the Parties (Order,
paragraph 112)! Further, to conclude on this point, the majority has
affirmed peremptorily that “the acts alleged by Georgia appear to be capable
of contravening rights provided for by CERD, even if certain of these
alleged acts might also be covered by other rules of international law,
including humanitarian law” (ibid.).
11. Even if one accepts, for the sake of argument, that a dispute likely to
fall within the provisions of CERD existed between Georgia and Russia before
the seisin of the Court, it must be asked whether this constitutes a
dispute, in the express terms used in Article 22 of CERD, “which is not
settled by negotiation or by the procedures expressly provided for in this
Convention”.
12. With regard to negotiations, the Court begins by seeking the literal
meaning of Article 22, which “does not, on its plain meaning, suggest that
formal negotiations . . . or recourse to the procedure referred to in
Article 22 thereof constitute preconditions to be fulfilled before the
seisin of the Court” (Order, paragraphs 114 and 115); this would amount to
denying any legal effect and useful scope to the mention thereof. The Court
then admits that the questions concerning CERD should have been raised
between the Parties, referring specifically in this regard to the bilateral
contacts between the Parties and certain representations made to the
Security Council, even though nowhere in these has Georgia accused Russia of
racial discrimination. Thus, in our opinion, the very substance of CERD was
never debated between the Parties before the filing of a claim before the
Court.
13. It is very surprising that the Court has chosen to disregard this
precondition to any judicial action when Georgia itself has recognized that
“even where an obligation to negotiate prior to seising the Court does
exist, it is well established that it does not require the parties to
continue with negotiations which show every sign of being unproductive” (CR
2008/25, p. 19 (Crawford)). Indeed, this is what emerges from the
jurisprudence of the Court and its predecessor, the Permanent Court of
International Justice. For the condition of prior negotiation to be
fulfilled, it suffices for an attempt to have been made and for it to have
become clear at some point that there was no chance of success. In any
event, it is clear that when negotiation is expressly provided for by a
treaty, the Court cannot ignore this prior condition without explanation;
nor can the Court dispose of this condition merely by observing that the
question has not been resolved by negotiation. The judgment in Mavrommatis
Palestine Concessions has often been quoted on this point in later
decisions:
“The true value of this objection will readily be seen if it be remembered
that the question of the importance and chances of success of diplomatic
negotiations is essentially a relative one. Negotiations do not of necessity
always presuppose a more or less lengthy series of notes and despatches; it
may suffice that a discussion should have been commenced, and this
discussion may have been very short; this will be the case if a dead lock is
reached, or if finally a point is reached at which one of the Parties
definitely declares himself unable, or refuses, to give way, and there can
therefore be no doubt that the dispute cannot be settled by negotiation.”
(Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series
A, No. 2, p. 3; emphasis in the original).
14. In the case concerning Armed Activities on the Territory of the Congo
(New Application: 2002) (Democratic Republic of the Congo v. Rwanda), the
present Court issued an Order on 10 July 2002, in which it recalled that:
“the Congo further claims to found the jurisdiction of the Court on Article
29 of the Convention on Discrimination against Women, providing:
‘Any dispute between two or more States Parties concerning the
interpretation or application of the present Convention which is not settled
by negotiation shall, at the request of one of them, be submitted to
arbitration. If within six months from the date of the request for
arbitration the parties are unable to agree on the organization of the
arbitration, any one of those parties may refer the dispute to the
International Court of Justice by request in conformity with the Statute of
the Court.’” (Provisional Measures, Order of 10 July 2002, I.C.J. Reports
2002, pp. 246-247, para. 76.)
The Court considered that “at this stage in the proceedings the Congo has
not shown that its attempts to enter into negotiations or undertake
arbitration proceedings with Rwanda . . . concerned the application of
Article 29 of the Convention” (ibid., para. 79).
15. Thus, it is not sufficient that there have been contacts between the
Parties (see para. 12 above); these contacts must have been regarding the
subject of the dispute, either the interpretation or application of the
Convention. Even so, this precedent may not be dismissed in the present
case, given that the two compromissory clauses are different, in that
Article 29 of the Convention on Discrimination against Women requires
arbitration after negotiation and before filing suit in the Court. In fact,
when it rendered its judgment on 3 February 2006 on jurisdiction, the Court
concluded that Article 29 established cumulative conditions and that it
“must therefore consider whether the preconditions on its seisin . . . have
been satisfied in this case” (Armed Activities on the Territory of the Congo
(New Application: 2002) (Democratic Republic of the Congo v. Rwanda),
Jurisdiction of the Court and Admissibility of the Application, Judgment,
I.C.J. Reports 2006, p. 39, para. 87).
16. The very least that the Court should have done was to ask itself whether
negotiations had been opened and whether they were likely to lead to a
certain result, but it did not do so. Thus, it is understandable why a State
party to CERD, in this case Russia, finds it unacceptable for an action to
be brought against it before the Court without having been first advised of
Georgia’s grievances with regard to this Convention.
17. We now come to the alternative precondition stipulated in Article 22 of
CERD, namely, that the dispute has not been settled by “the procedures
expressly provided for in this Convention”.
18. As was the case for negotiation, the Court is content here to observe
that “neither Party claims that the issues in dispute have been brought to
the attention of the Committee” (Article 11 of the Convention) (Order,
paragraph 116), and to conclude from this that the dispute has not been
resolved by way of the procedures provided for in the Convention. One cannot
but be puzzled by this interpretation, which confirms neither the ordinary
meaning of Article 22 nor its object and purpose which is to encourage the
maximum number of countries to submit to the jurisdiction of the Court, with
the assurance that the procedures provided for in the Convention will first
be exhausted; nor does it refer to the travaux préparatoires for this
Article when it was drafted by the Third Committee of the General Assembly
of the United Nations.
The Court could have considered that the seriousness of the situation when
armed conflict broke out on 7-8 August did not allow recourse to these
procedures, but this would set little store by the procedure for urgency and
rapid alert established by the Committee for the Elimination of
Racial Discrimination in 1993 to allow it to intervene more effectively in
cases of possible violations of the Convention (Report of the Committee for
the Elimination of Racial Discrimination, doc. A/48/18, Ann. III).
19. Therefore, we consider that the majority has wrongly decided that the
Court has jurisdiction prima facie to hear this case under Article 22 of
CERD, in so far as it has neither succeeded in establishing the existence of
a dispute over the interpretation or application of that Convention nor
demonstrated that the precondition for the seisin of the Court has been
satisfied.
20. Even if jurisdiction prima facie were established, according to the
jurisprudence of the Court two further conditions, namely the existence of a
risk of irreparable harm to the rights in dispute and urgency, have to be
met.
21. In our opinion, the Order nowhere demonstrates the existence of any risk
of irreparable harm to Georgia’s rights under CERD. The Court confines
itself to a petitio principii when it states that “the rights in question in
these proceedings . . . are of such a nature that prejudice to them could be
irreparable” (Order, paragraph 142), defining neither the precise manner in
which they are threatened nor the irreparable harm which they might suffer.
The Court thus appears to suggest that certain rights may automatically
fulfil the irreparable harm criterion, without analysing the real facts on
the ground or the actual threat against the said rights. With regard to the
expulsions alleged by Georgia and attributed by it to Russia, they cannot in
and of themselves be considered to constitute irreparable harm, since the
Court, if it arrives at the merits stage in this case, can always order that
the expelled individuals be allowed to return to their homes and be granted
appropriate compensation. It is even more difficult to claim irreparable
harm to the rights in dispute when the appropriate organs of the United
Nations have reported that thousands of persons have, since the cessation of
hostilities, returned to their homes in Abkhazia and South Ossetia, and when
the ceasefire agreement of 12 August 2008 provides that negotiations will
soon open in Geneva, on 15 October 2008, between all the parties,
concerning, inter alia, the progressive return of the displaced persons.
22. With regard to urgency, there simply is none, since after conclusion of
the ceasefire agreement, European Union observers have now been deployed to
monitor the ceasefire and the return of troops of both countries to their
positions before 7 August 2008, and the observers from the United Nations
Mission in Georgia and those from the Organization for Security and
Co-operation in Europe will continue their missions in Abkhazia and South
Ossetia respectively.
23. Therefore, one has no choice but to observe not only that the Court does
not have jurisdiction prima facie to pronounce on the merits in this case,
but that the conditions established in the jurisprudence for the indication
of provisional measures are obviously not met.
24. This weakness in the Order has not completely escaped the attention of
the majority and is echoed in the operative clause, which ultimately asks
both Parties to respect the Convention, which they are in any event obliged
to do, with or without provisional measures.
25. Thus, even though we are in agreement with this obvious conclusion, we
have had to vote against this Order of the Court which is not well founded
in law.
(Signed) Awn Shawkat AL-KHASAWNEH.
(Signed) Raymond RANJEVA.
(Signed) SHI Jiuyong.
(Signed) Abdul G. KOROMA.
(Signed) Peter TOMKA.
(Signed) Mohamed BENNOUNA.
(Signed) Leonid SKOTNIKOV.
DECLARATION OF JUDGE AD HOC GAJA
While I have voted in favour of all the provisional measures, including
those under A, I cannot share the view that the conditions are met for
addressing the latter measures also to the applicant State. The respondent
State did not even allege that in Abkhazia, South Ossetia or adjacent areas
the conduct of Georgian authorities or of individuals, groups or
institutions under their control or influence may cause the risk of
irreparable harm to rights conferred under CERD. Nor does the Court give an
adequate explanation when appraising that risk (see para. 143).
In the present factual situation it seems unlikely that the applicant State
could be responsible for violations of rights under CERD that may occur in
the relevant areas. Even before the recent events in those areas, the
Committee on the Elimination of Racial Discrimination found that Georgia had
“difficulty in exercising its jurisdiction with regard to the protection of
human rights and the implementation of the Convention in those regions”
[Abkhazia and South Ossetia] (CERD/C/GEO/CO/3, 27 March 2007, para. 4).
(Signed) Giorgio GAJA. |
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