142

      Joint dissenting opinion of President Owada,
         Judges Simma, Abraham and Donoghue
                 and Judge ad hoc Gaja

[English Original Text]

   Agreement as to rejection of the first preliminary objection concerning the
existence of a dispute, but not with the Court’s reasoning — Lack of flexibility in
objective determination of the existence of a dispute — Existence of a dispute
within the subject‑matter of CERD well before 9 August 2008 — Reference to the
separate opinions — Disagreement with the Court’s position sustaining the second
preliminary objection, concerning the procedural conditions laid down by Article 22
of CERD — Questionable character of the Court’s analysis of the issue as to
whether Article 22 of CERD establishes mandatory preconditions — Argument
drawn from the “effectiveness” principle relevant but not controlling — Literal
meaning of the wording “any dispute which is not settled by” — No account taken
of the fact that this clause departs from the general rule — Uncertainty
characterizing the Court’s prior jurisprudence as to the meaning to be ascribed to
clauses of this type — Unjustified failure to apply the Court’s most recent
jurisprudence as to the time when the conditions for the Court’s jurisdiction have to
be fulfilled — In so far as Article 22 of CERD lays down mandatory preconditions,
the alternative character of them — Substance of the condition requiring an
attempt to settle the dispute by negotiation — Excessively formalistic approach
taken by the Court — Condition met where there is no reasonable prospect
of resolving the dispute through negotiations between the Parties — Account to
be taken of the subject of the dispute and the Parties’ respective positions — In
the present case, in so far as the condition is required by Article 22 of CERD,
fulfilment of this condition at the date of the Application under the circumstances
of the case.

   1. In the present Judgment, the Court rules on two preliminary objec-
tions which the Russian Federation has raised to Georgia’s Application.
It rejects the first, based on the alleged non‑existence at the date the
Application was filed of a dispute between the two Parties concerning the
interpretation or application of the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD). On the
other hand, it sustains the second, based on the absence of any attempt to
settle the dispute by negotiation or by recourse to the special procedures
provided for in CERD before the Application was filed.

  2. We have voted in favour of paragraph (1) (a) of the operative part
because we believe that the Court has rightly rejected the first preliminary
objection. We have however voted against paragraph (1) (b) because in
our view the second preliminary objection should also have been rejected,

76

143 	 convention on racial discrimination (joint diss. op.)

and against paragraph (2) because we therefore think that the Court
should have found that it had jurisdiction to entertain the Application.

   3. Despite our votes in favour of rejecting the first preliminary objec-
tion, we disagree in significant ways with the Court’s reasoning on this
subject. Some of the reasons for that disagreement are expounded in our
separate opinions.

   In short, under the reasoning adopted by the Court, a dispute does not
exist unless the applicant has given notice of its claims to the respondent
before the application is filed and the respondent “has opposed” those
claims. But, as shown in greater detail in the separate opinions of some of
us, the Court, in making an objective determination as to whether a dis-
pute exists, has never before required prior notice of the claim and rejec-
tion by the respondent. On the contrary, the Court has been flexible, by
for example drawing inferences from the Parties’ conduct and taking
account of their positions as stated before the Court.

   4. We also disagree with the way in which the facts put forward by
Georgia are dealt with in the Judgment to support the Court’s conclusion
that there was no dispute corresponding to the subject of the Application
before 9 August 2008. In our view, the record, when considered as a
whole, shows that there was a dispute — that is to say, a “disagreement
on a point of law or fact” — within the ambit of CERD that came into
existence between the entry into force of that Convention — as between
the Parties — and the filing of the Application, and that this occurred
well before 9 August 2008. There is no need to ascertain the exact date on
which the dispute arose, yet that is what the Court has applied itself to
doing, scrutinizing each statement or document cited by Georgia and dis-
missing each (until the date which the Court ultimately chooses to use) on
grounds such as, for instance, that the document contains an allegation of
ethnic discrimination without expressly attributing it to Russia or that
it asserts grievances against Russia but does not expressly link them to
ethnic discrimination. We are fully mindful of the thorny questions of
law and fact the Court would have to decide in determining — on the
merits — whether Georgia has proved its allegations of CERD violations
by Russia. But those were not the questions before the Court at this stage
in the proceedings. The question raised by the first preliminary objection
was solely whether a dispute existed between Georgia and Russia con-
cerning the interpretation or application of CERD. And that question
most certainly has to be answered in the affirmative.

   5. The present opinion will be devoted for the most part to setting out
our reasons for disagreeing with the Court’s decision on the second pre-
liminary objection, which follow here.

77

144 	 convention on racial discrimination (joint diss. op.)

   6. There is no argument that the only basis of jurisdiction invoked by
Georgia — and consequently the only basis to be examined by the
Court — is the compromissory clause in Article 22 of CERD. Nor is
there any argument that both Parties were bound by this provision at the
date the Application was filed.
   7. Under Article 22 of CERD any party to the Convention may uni
laterally refer to the Court “[a]ny dispute . . . with respect to the interpreta-
tion or application of this Convention, which is not settled by negotiation
or by the procedures expressly provided for in this Convention”.

   8. The “procedures expressly provided for” referred to in Article 22 are
those described in Part II of the Convention, specifically in Articles 11 to
13. It is undisputed that Georgia did not attempt to put these procedures
in motion to settle its dispute with Russia before it seised the Court on
12 August 2008.
   9. According to the Russian Federation, the Court cannot find that it
has jurisdiction to adjudicate a dispute unless the applicant State has first
tried — without success — to settle the dispute through recourse, if neces-
sary, to the two modes referred to in Article 22, namely “negotiation”
and “the procedures expressly provided for” in the Convention. In the
present case, Russia argues, the mere fact that Georgia did not initiate the
special procedures established in Part II of the Convention before refer-
ring the case to the Court is sufficient to deprive the Court of jurisdiction.
In any case, even if it were enough for the Applicant to have pursued only
one of the two avenues referred to in Article 22, the conclusion would be
the same, because, according to Russia, Georgia also failed to make any
attempt to settle its dispute with Russia by negotiation. That in substance
is the second preliminary objection on which the Court was asked to rule.

   10. A thorough examination of that argument should require that the
following four questions be answered : (1) Does Article 22 of CERD lay
down “preconditions”, the fulfilment of which must be ascertained by the
Court for it to exercise jurisdiction? (2) If so, are these “preconditions”
alternative or cumulative? (3) If they are alternative, what exactly does
the condition requiring an attempt to “settle the dispute by negotiation”
consist of ? And (4) has this last condition been satisfied in the case?

  11. The Court answers the first question in the affirmative (Judgment,
paras. 141 and 147). In response to the third question, it takes a rather
exacting view of what constitutes “negotiation” (ibid., paras. 157 to 162).
On the fourth question, it considers that Georgia has not satisfied the pre-
condition of having attempted to settle the dispute by negotiation with
Russia (ibid., para. 182). Accordingly, the Court finds that it does not need
to answer the second question, as neither of the procedural conditions laid
down in Article 22 has, in the Court’s view, been fulfilled (ibid., para. 183).
  12. Our opinion on the questions set out above is as follows.

78

145 	 convention on racial discrimination (joint diss. op.)

   We find that the Court’s interpretation of Article 22 — that the provi-
sion establishes “preconditions” on which the Court’s exercise of jurisdic-
tion depends — is questionable and that the Court’s analysis on this point
ignores or gives short shrift to arguments which might have led to a dif-
ferent conclusion.
   More importantly, however, we think that the preliminary objection
should have been rejected even on the basis of the general proposition
accepted by the Court in paragraph 141 of the Judgment, i.e., “the terms
of Article 22 . . . establish preconditions to be fulfilled before the seisin of
the Court”.
   In fact, the two “conditions” — if we agree to call them such — in
Article 22 can only be alternative in nature, not cumulative.
   The condition requiring an attempt to settle the dispute by negotiation
must be understood and applied realistically and substantively, not in the
unrealistic and formalistic manner applied by the Judgment.
   Further to this last point, we take the view that any reasonable possi-
bility of settling the dispute by negotiation had been exhausted by the
date on which the proceedings were instituted, so that the conditions on
the Court’s exercise of its jurisdiction were satisfied in any event.

  13. These various points will now be elaborated.

         I. Does Article 22 of CERD Lay Down Procedural
                   “Preconditions” to Be Satisfied
                    Prior to Seisin of the Court?

   14. The terms “conditions” and “preconditions” are not unambiguous.
They are used here for convenience, as the Court has done in the past in
connection with compromissory clauses akin to Article 22 of CERD, or
with Article 22 itself, in affirming the existence or non-existence of any
such “conditions” (Armed Activities on the Territory of the Congo (New
Application : 2002) (Democratic Republic of the Congo v. Rwanda), Juris-
diction and Admissibility, Judgment, I.C.J. Reports 2006, p. 39, para. 87) ;
Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation), Provisional
Measures, Order of 15 October 2008, I.C.J. Reports 2008, p. 388,
para. 114).
   15. What is important is not deciding what terminology to use but
clearly defining the terms of the debate between the Parties on the inter-
pretation of Article 22 in this regard.
   The Parties did not disagree on the fact that the Court, in order to
exercise jurisdiction, must at a minimum verify that the dispute submitted
to it “is not settled” by one means or the other. In fact, where a dispute is
settled, there is no longer a dispute amenable to judicial settlement, as the
diplomatic solution that by definition the parties in such a case have
accepted is controlling as between them. In this respect, there is indeed a

79

146 	 convention on racial discrimination (joint diss. op.)

factual condition which the Court must assess in all cases and on the ful-
filment of which its jurisdiction is dependent.
   That is not the question which divided the Parties and which the Court
was called upon to decide.
   That question was the following : According to the Russian Federation,
the Court can adjudicate a case submitted to it under Article 22 only if
the applicant State establishes to the satisfaction of the Court not only
that the dispute has not been settled, but also that the applicant has
endeavoured to settle it by direct negotiation or, if that fails, by recourse
to the special procedures in Part II of the Convention, and that the efforts
were unsuccessful. According to Georgia, conversely, it is necessary and
sufficient that the dispute is not settled. The applicant need show no
more ; specifically, it does not have to prove that it tried to settle the dis-
pute by non‑judicial means.
   16. The Court decides clearly and unequivocally in favour of Russia’s
position — leaving aside the question whether the two modes contem-
plated in Article 22 are alternative or cumulative, on which the Court
finds there to be no need for a decision.
   Thus, according to the Judgment, an unsuccessful attempt to settle the
dispute by diplomatic means is a “precondition” for the jurisdiction of
the Court. The Judgment goes so far as to specify that this “precondi-
tion” must be fulfilled at the date the Court is seised, meaning that by this
date, and no later, all possibility of negotiated settlement must have been
exhausted because “there has been a failure of negotiations, or . . . nego-
tiations have become futile or deadlocked” (Judgment, para. 159).
   We think that the Court’s interpretation on the first point is question-
able and on the second is at variance with the Court’s most recent juris-
prudence.
   17. In reaching the conclusion that Article 22 lays down “precondi-
tions” for the jurisdiction of the Court, the Judgment relies on consider-
ations under three headings.
   First, it asserts that the ordinary meaning of the terms used, interpreted
in their context in accordance with the rules of interpretation codified in
Article 31 (1) of the Vienna Convention on the Law of Treaties, leads to
this conclusion (ibid., para. 141). Secondly, it maintains that this interpre-
tation is supported by the Court’s settled jurisprudence in cases in which
the Court has had to apply clauses comparable to Article 22. Thirdly and
finally, it draws on the travaux préparatoires of the text to be interpreted,
analysing them in paragraphs 142 to 147.
   18. In fact, the Court draws little of consequence from its examination
of the travaux préparatoires. It confines itself to noting, in conclusion to
this examination, that : “the travaux préparatoires do not suggest a differ-
ent conclusion from that at which the Court has already arrived through
the main method of ordinary meaning interpretation” (ibid., para. 147).
In other words, it does not find confirmation in the travaux prépara-
toires of the interpretation it has already arrived at based on the “ordi-
nary meaning” of the terms of the clause ; on a more cautious note, it

80

147 	 convention on racial discrimination (joint diss. op.)

observes only that it finds nothing decisive that suggests a conflicting
interpretation.
   19. Thus, the analysis of the “ordinary meaning” of the terms and the
examination of the prior case law are the sole bases of the reasoning
relied on by the Court to justify its interpretation. In these two regards
the Court’s reasoning strikes us as rather weak and raises serious ques-
tions.
   20. Indisputably, a treaty must first be interpreted “in accordance with
the ordinary meaning to be given to [its] terms . . . in their context and
in the light of its object and purpose” (Vienna Convention on the Law
of Treaties, Art. 31 (1)). Travaux préparatoires are merely a “supplemen-
tary means of interpretation”, to which resort may be had only if the
“general rule of interpretation” laid down in Article 31 of the Vienna
Convention leaves the meaning “ambiguous or obscure” or leads to a
“manifestly absurd or unreasonable” result (Article 32 of that Conven-
tion). Thus, having determined that the “ordinary meaning” of the terms
leads to an unambiguous conclusion that is neither absurd nor unreason-
able, the Court observes (Judgment, para. 142) that it need not resort to
the travaux préparatoires. It only does so, as an extra measure, “in order
to confirm its reading” based on the ordinary meaning — a purpose
which it ultimately fails to achieve.
   21. It is however striking that the “general rule of interpretation”, i.e.,
“the ordinary meaning to be given to the terms of the treaty in their con-
text and in the light of its object and purpose”, is applied in the Judgment
in a way that amounts to nothing more than applying the principle of
“effectiveness”. According to the Court : “By interpreting Article 22 of
CERD to mean, as Georgia contends, that all that is needed is that, as a
matter of fact, the dispute had not been resolved . . ., [the passage to be
interpreted] would become devoid of any effect” (ibid., para. 133). It is
this justification, and it alone, which supports the Court’s conclusion, and
the Court felt no need to pursue its analysis of the “ordinary meaning of
the terms” any further. The additional argument in paragraph 135 based
on the use of the future perfect (“différend . . . qui n’aura pas été réglé”)
in the French version of Article 22, whereas the present indicative (“dis-
pute . . . which is not settled”) is used in the English, is hardly a solid one,
since the problem of interpretation remains the same whatever the tense
employed.
   22. We do not of course seek to deny the relevance, or underestimate
the importance, of the principle that the interpreter of a treaty must nor-
mally seek to give its terms a meaning which leads them to have practical
effect, instead of one which deprives them of any effect (the “principle
of effectiveness”). But this technique of interpretation is never as all‑
determinative as the Court would appear to treat it in the present case ; it
does not suffice by itself.

  The fact is that “effectiveness” is merely one argument which may point
towards a particular interpretation, but it does not obviate the need to

81

148 	 convention on racial discrimination (joint diss. op.)

take into consideration other elements relevant to elucidating the mean-
ing of the text. We believe that in the case before us the Court should at
least have considered certain elements capable of counterbalancing the
argument drawn from the principle of effectiveness, which, such as it is
described by the Court in the present Judgment, undeniably weighed in
favour of the interpretation propounded by the Respondent.
   23. We are sorry to say that the Judgment refrains from even mention-
ing those elements, which are set out below.
   First, the Court appears to attach no importance to the fact that its
interpretation does not accord with the literal meaning of the text when
the terms employed are given their most common meaning. By itself,
the language “any dispute which is not settled by” neither suggests nor
requires that an attempt at settlement must necessarily have been made
before reference to the Court. In this connection, the Judgment appears
to treat as synonymous the various forms of wording found in compro-
missory clauses making reference to negotiation, including, on the one
hand, those like Article 22 of CERD referring to a dispute “which is not
settled” or “which has not been settled” and, on the other hand, those
referring to a dispute “which cannot be settled by negotiation” (for exam-
ples of this second type, see the compromissory clauses applicable in the
cases concerning Mavrommatis Palestine Concessions, Judgment No. 2,
1924, P.C.I.J., Series A, No. 2, p. 11 ; South West Africa (Ethiopia v.
South Africa ; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 335 ; and Questions of Interpretation and Applica-
tion of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Pre-
liminary Objections, Judgment, I.C.J. Reports 1998, p. 121, para. 17).

   The Court notes these “variations” “in the language used” (Judgment,
para. 136) but would appear to consider them unimportant because it
draws no inferences from them.
   This question, however, warranted fuller consideration. In 1965, when
CERD was finalized and adopted, compromissory clauses in treaties in
force referring to “negotiation” contained two sorts of formulations, i.e.,
to simplify a bit, clauses referring to a dispute “which cannot be settled”
by negotiation and those referring simply to a dispute “which is not set-
tled” by negotiation. It may therefore be asked whether the wording
adopted for Article 22 was not a deliberate, and therefore meaningful,
choice, as opposed to an arbitrary selection of one form of wording out
of a number of forms deemed equivalent. It is beyond doubt in any case
that the CERD drafters chose, deliberately or not, the wording least
capable of being interpreted literally as laying down a “precondition”
requiring a prior attempt to negotiate a settlement.

   24. The foregoing observation is buttressed by the status in interna-
tional law of negotiations held prior to the initiation of judicial proceed-

82

149 	 convention on racial discrimination (joint diss. op.)

ings. In paragraph 131 the Court quotes the 1924 Judgment by the PCIJ
in the case concerning Mavrommatis Palestine Concessions, stating “that
before a dispute can be made the subject of an action at law, its subject‑
matter should have been clearly defined by means of diplomatic
negotiations” (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 15). It
 omits to quote the dictum, in our view much more important, in the
 Judgment handed down by this Court in 1998 in the case concerning
 Land and Maritime Boundary between Cameroon and Nigeria (Camer-
 oon v. Nigeria) : “Neither in the Charter nor otherwise in international
 law is any general rule to be found to the effect that the exhaustion of
 diplomatic negotiations constitutes a precondition for a matter to be
 referred to the Court.” (Preliminary Objections, Judgment, I.C.J. Reports
 1998, p. 303, para. 56.)
    It is clear that while diplomatic negotiations concerning a dispute may
 be helpful before judicial proceedings are brought, particularly in clarify-
 ing the terms of the dispute and delimiting its subject‑matter, they as a
 general rule are not a mandatory precondition to be satisfied in order for
 the Court to be able to exercise jurisdiction. There is such a requirement
 only if, and to the extent that, it is embodied in the clause or declaration
 on which the jurisdiction of the Court is founded. Thus, as noted in the
 above‑cited Judgment in the case concerning Land and Maritime Bound-
 ary between Cameroon and Nigeria (Cameroon v. Nigeria) :

       “A precondition of this type may be embodied and is often included
     in compromissory clauses of treaties. It may also be included in a
     special agreement whose signatories then reserve the right to seise the
     Court only after a certain lapse of time . . . Finally, States remain free
     to insert into their optional declaration accepting the compulsory
     jurisdiction of the Court a reservation excluding from the latter those
     disputes for which the parties involved have agreed or subsequently
     agree to resort to an alternative method of peaceful settlement.”
     (Ibid.)
   25. The general rule set out above is unquestionably one of long stand-
ing ; the Court has never conditioned its jurisdiction on the existence of
prior negotiations between the parties, except on the basis of an express
provision to that effect.
   26. Accordingly, when the drafters of a compromissory clause wish to
include such a precondition, they are aware that in doing so they will
depart from the general rule, which includes no such condition. This
affords yet another reason for them to make their intention unambigu-
ously clear. In such a case, this should at least lead them to prefer the
wording referring to a dispute “which cannot be settled” to that referring
to a dispute “which is not settled” by negotiation. Yet a great number of
treaties, including some that had already been adopted as of the date
when CERD was signed, spell out the condition even more clearly, thus
avoiding any possible ambiguity. For example, the Single Convention on

83

150 	 convention on racial discrimination (joint diss. op.)

Narcotic Drugs, signed at New York on 30 March 1961, provides : “If
there should arise between two or more Parties a dispute . . ., the said
Parties shall consult together with a view to the settlement of the dispute
by negotiation, investigation, mediation . . . or other peaceful means of
their own choice.” (Art. 48, para. 1.) Only after these mandatory consul-
tations may the dispute be referred to the Court for decision pursuant to
Article 48, paragraph 2, of that Convention.
   Formulations like these were available to the drafters of Article 22 and
moreover were considered at a certain stage (Draft International Conven-
tion on the Elimination of All Forms of Racial Discrimination, Final
Clauses, Working Paper Prepared by the Secretary‑General, doc. E/CN.4/
L.679, 17 February 1964). There is no denying that the Convention’s
drafters did not employ them, and this casts doubt on the correctness
of the Court’s interpretation, notwithstanding the undeniable relevance
of the “effectiveness” argument.

   27. We are just as unsatisfied with the description of the Court’s prior
jurisprudence found in paragraphs 136 to 140 of the Judgment. Accord-
ing to the Judgment, the jurisprudence is clear and consistent.
   After quoting from two precedents (the case concerning Armed Activi-
ties on the Territory of the Congo (New Application : 2002) (Democratic
Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judg-
ment, I.C.J. Reports 2006, pp. 40‑41, para. 91 and p. 43, para. 100 ; and
the Advisory Opinion on the Applicability of the Obligation to Arbitrate
under Section 21 of the United Nations Headquarters Agreement of
26 June 1947, I.C.J. Reports 1988, p. 27, para. 34) in which it was called
upon to interpret clauses more or less like Article 22 of CERD, the Court
concludes : “in each of the above‑mentioned cases where the compromis-
sory clause was comparable to that included in CERD, the Court has
interpreted the reference to negotiations as constituting a precondition to
seisin” (Judgment, para. 140). Given that no other precedent is cited, the
reader is led to believe that the Court has consistently interpreted such
compromissory clauses in the same way whenever it has faced the issue
that arises in the present case.

  The real picture is much less uniform.
  28. It is true that the Court has consistently interpreted compromis-
sory clauses providing for the submission to the Court of disputes which
“cannot be settled” (in French : “qui ne peuvent pas être réglés” or “qui
ne sont pas susceptibles d’être réglés”) by negotiation as meaning that the
Court cannot exercise jurisdiction unless an attempt at negotiation has
been made and has led to deadlock, that is to say that there is no reason-
able hope — or no longer any — for a settlement of the dispute by diplo-
matic means. This line of case law dates back to the Judgment in the
Mavrommatis Palestine Concessions case (cited in paragraph 23, above, of
the present opinion).
  29. On the other hand, in respect of clauses worded like Article 22 of

84

151 	 convention on racial discrimination (joint diss. op.)

 CERD, applying to disputes “which are not settled” by negotiation, the
 jurisprudence of the Court would appear to fluctuate much more than the
 present Judgment suggests.
    30. In addition to the two cases cited in paragraphs 137 to 139, relied
 on to support the Court’s position in the present case, the relevant
 precedents include the Oil Platforms (Islamic Republic of Iran v. United
States of America) case, in which the compromissory clause reads as
follows :
        “Any dispute . . . not satisfactorily adjusted [in French : “Tout dif-
     férend . . . qui ne pourrait pas être réglé d’une manière satisfaisante”]
     by diplomacy, shall be submitted to the International Court of Jus-
     tice, unless the High Contracting Parties agree to settlement by some
     other pacific means.” (Preliminary Objection, Judgment, I.C.J. Reports
     1996 (II), p. 809, para. 15.)
   The Court applied this clause first in its Judgment on the preliminary
 objection raised by the United States, in ascertaining that it had jurisdic-
tion to entertain Iran’s Application, and then in its Judgment on the
merits, in responding to an objection by Iran to a counter‑claim of the
 United States.
   In the first of these two Judgments the Court confines itself to observing :
       “It is not contested that several of the conditions laid down by this
     text have been met in the present case : a dispute has arisen between
     Iran and the United States ; it has not been possible to adjust that
     dispute by diplomacy and the two States have not agreed ‘to settle-
     ment by some other pacific means’.” (Ibid., pp. 809‑810, para. 16.)
  The Court does speak in this passage of a “condition” in respect of the
absence of diplomatic settlement, but it is impossible to tell exactly what
that “condition” consists of — no doubt because the parties did not argue
the question.
  The Judgment on the merits is much clearer on this point. In response
to the objection raised by Iran to the United States counter‑claim and
based specifically on the assertion that the Court “cannot entertain
the . . . claim of the United States because it was presented without any
prior negotiation”, the Judgment states :
        “It is established that a dispute has arisen between Iran and the
     United States over the issues raised in the counter‑claim. The Court
     has to take note that the dispute has not been satisfactorily adjusted
     by diplomacy. Whether the fact that diplomatic negotiations have not
     been pursued is to be regarded as attributable to the conduct of the
     one Party or the other is irrelevant for present purposes, as is the
     question whether it is the Applicant or the Respondent that has
     asserted a fin de non‑recevoir on this ground. As in previous cases
     involving virtually identical treaty provisions [the United States
     Diplomatic and Consular Staff in Tehran and Military and Paramilitary

85

152 	 convention on racial discrimination (joint diss. op.)

     Activities in and against Nicaragua cases are cited here], it is sufficient
     for the Court to satisfy itself that the dispute was not satisfactorily
     adjusted by diplomacy before being submitted to the Court.” (Oil
     Platforms (Islamic Republic of Iran v. United States of America),
     Judgment, I.C.J. Reports 2003, pp. 210‑211, para. 107.)

   Surprisingly, this clear and fairly recent precedent is not even men-
tioned in the Judgment. Admittedly, that decision looks to two precedents
which, on careful inspection, are not entirely consistent with the position
the Court took in 2003. To our mind, all this shows one thing : contrary
to the impression given by the Judgment in the present case, the Court’s
prior jurisprudence on compromissory clauses akin to Article 22 of
CERD was not consistent, but was fluid and uncertain.

   31. Finally, we find that the Court gives short shrift to the precedent in
the form of the Order of 15 October 2008 on the request for provisional
measures submitted in the present case. The Court cites that Order in
paragraph 129 of the Judgment. It quotes its own statement in the Order
that “the phrase ‘any dispute . . . which is not settled by negotiation . . .’
does not, in its plain meaning, suggest that formal negotiations in the
framework of the Convention . . . constitute preconditions to be fulfilled
before the seisin of the Court”, even though it did at the time add, “Arti-
cle 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 [the Convention]” (Application of the Interna-
tional Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Provisional Measures, Order of 15 Octo-
ber 2008, I.C.J. Reports 2008, p. 388, para. 114). The Court then limits
itself to observing that the conclusion above was strictly provisional, that
it was solely for the purpose of determining whether the Court had prima
facie jurisdiction over the case and that the Court is not bound by it in
ruling definitively on the issue of jurisdiction after having considered all
arguments of the Parties. This is how the Court justifies its change of
position on the matter.

   32. We take no issue with the validity of the Court’s analysis in para-
graph 129, where it merely points to a consistent jurisprudence : an order
ruling on a request for provisional measures has no force as res judicata ;
it cannot prejudge any question to be decided by the Court in the subse-
quent proceedings, including the question of its jurisdiction to adjudicate
the case on the merits.

  33. But it is one thing to deny the Order any binding force on the issue
of jurisdiction and yet another to disregard it completely as a germane
precedent, that is to say one apt to shed light on how the Court has

86

153 	 convention on racial discrimination (joint diss. op.)

 reviously treated clauses identical or comparable to Article 22. The very
p
least that can be said is that the 2008 Order undeniably shows that the
prior case law was not as clearly settled — in favour of the existence of a
“precondition” — as the present Judgment would suggest. Had it been,
the Court in 2008 would not have been able to assert, even prima facie,
that Article 22 “in its plain meaning” did not appear to make prior
negotiations a condition to the seisin of the Court (which it now says is
 the case).

   34. Thus, there is no unassailable argument supporting the interpreta-
tion of Article 22 of CERD upheld by the Court in the present Judg-
ment — namely, that the clause establishes “preconditions”, the fulfilment
of which has to be determined by the Court, including whether there has
been a failed attempt at a negotiated settlement. Neither textual analysis
of the language, which is ambiguous, nor the prior jurisprudence, which
appears to have fluctuated, nor an examination of the travaux prépara-
toires, which are inconclusive, necessarily leads to the position the Court
has decided to adopt in this case — at variance with the position it took
on a prima facie basis three years ago in the same case.
   35. What is more, the Court adopts a particularly exacting position in
requiring that the preconditions in question must be fulfilled “before the
seisin of the Court” (Judgment, para. 141).
   In our view, this position is out of step with the most recent jurispru-
dence of the Court in respect of the conditions for jurisdiction or admis-
sibility. While it is true that in principle the Court, in determining whether
the conditions governing its jurisdiction or the admissibility of an applica-
tion are met, looks to the date on which it was seised, it has progressively
relaxed this principle since the Judgment in the Mavrommatis Palestine
Concessions case (cited in paragraph 23 of the present opinion) to address
the situation in which a condition not met when the proceedings were
begun comes to be fulfilled between then and the date on which the Court
decides on its jurisdiction (or on the admissibility of the application). In
such a case it would be pointlessly formalistic to refuse to take account of
the fulfilment of the initially unmet condition after the filing of the appli-
cation.

  As the Court wrote in terms that could not be any clearer in its most
recent Judgment concerning a situation of this kind :
        “What matters is that, at the latest by the date when the Court
     decides on its jurisdiction, the applicant must be entitled, if it so wishes,
     to bring fresh proceedings in which the initially unmet condition would
     be fulfilled. In such a situation, it is not in the interests of the sound
     administration of justice to compel the applicant to begin the proceed-
     ings anew — or to initiate fresh proceedings — and it is preferable,
     except in special circumstances, to conclude that the condition has,

87

154 	 convention on racial discrimination (joint diss. op.)

     from that point on, been fulfilled.” (Application of the Convention on
     the Prevention and Punishment of the Crime of Genocide (Croatia v.
     Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 441,
     para. 85.)
  36. None of this is reflected in the present Judgment. Requiring fulfil-
ment of the condition “before the seisin of the Court” means, for exam-
ple, that in a case where negotiations were begun before the application
was filed but came to an end only after that date, by virtue of the acknowl-
edged impossibility of reaching agreement, the Court should decline juris-
diction and thereby require the applicant to bring fresh proceedings. In
looking in the present case for any attempt by Georgia to negotiate, the
Court thus confines itself to the period from 9 August 2008, when the
Court believes the dispute came into existence, to 12 August 2008, when
the Application was filed :

      “the Court is . . . assessing whether Georgia genuinely attempted to
      engage in negotiations with the Russian Federation, with a view to
      resolving their dispute . . . [and, if so,] the Court [will] ascertain
      whether the negotiations failed, became futile, or reached a deadlock
      before Georgia submitted its claim to the Court” (Judgment, para. 162 ;
      emphasis added).
   37. No reason can be found for such a surprisingly narrow approach,
one at odds with the thrust of the Court’s most recent jurisprudence in
respect of its consideration of the conditions for jurisdiction and, specifi-
cally, at odds with a Judgment as recent — and as clear on this point in
its reasoning — as that which the Court handed down on the preliminary
objections in the Croatia v. Serbia case. The language quoted above from
paragraph 85 of that Judgment is obviously general in scope. In that case
the condition not met until after the application had been filed was not a
condition requiring an attempt at negotiated settlement, but the Court
expressed itself in terms precluding all doubt as to the fact that its reason-
ing applies to any initially unmet condition for jurisdiction or admissibil-
ity that is fulfilled between the date the proceedings were initiated and the
date on which the Court decides on its jurisdiction. And it is hard to see
any reason why it should be otherwise. It was this reasoning that allowed
the Court to find jurisdiction to entertain Croatia’s application. Hence, in
the present case the Court has departed from its own most recent juris-
prudence, without offering the slightest justification for doing so.

   38. As questionable as may be the Court’s especially strict interpreta-
tion of the compromissory clause in the present case — although we con-
cede that it is not “manifestly absurd or unreasonable” as those terms are
used in the Vienna Convention — we think that it nonetheless should not
have led the Court to sustain the second preliminary objection.

88

155 	 convention on racial discrimination (joint diss. op.)

   This is because we believe that, assuming that Article 22 of CERD lays
down “preconditions” for the jurisdiction of the Court, those “precondi-
tions” were satisfied in this case. Our conclusion follows from our view
that the two modes of settlement referred to in Article 22 are alternative,
not cumulative (II, below) ; that the requirement of an attempt at negoti-
ated settlement must be understood and applied realistically, not formal-
istically (III) ; and that it must be regarded as having been fulfilled in this
case (IV).

     II. Are the Two Modes Referred to in Article 22 Alternative
                          or Cumulative?

   39. The Judgment takes no position on this point because the Court
was of the view that neither of the two “conditions” laid down in Arti-
cle 22 had been fulfilled by the Applicant ; Georgia did not attempt to
settle the dispute by direct negotiation with Russia, nor did it initiate the
“procedures expressly provided for” in the Convention, since it did not
refer the matter to the Committee on the Elimination of Racial Discrimi-
nation pursuant to Article 11 of the Convention.
   40. We concur that, where a provision contains two conditions and
neither is met, no useful purpose is served in deciding whether they are
cumulative (both have to be fulfilled) or alternative (fulfilment of one suf-
fices). It is equally pointless to decide that question when both conditions
are in fact fulfilled.

   However, for the reasons to be explained presently and on the assump-
tion that Article 22 imposes conditions, our view is that one of those con-
ditions (i.e., an unsuccessful attempt to negotiate) has been satisfied by
Georgia, while the other clearly has not been. Thus, we must express our
view on the matter.
   41. Let us begin by clarifying the question. It is specifically whether the
applicant State must have attempted, without success, to settle its dispute
with the respondent by recourse, in turn or simultaneously, to the two
modes of settlement (“negotiation” and “the procedures expressly pro-
vided for”) referred to in Article 22, or whether having sought, without
success, to use one of those two modes is sufficient to entitle the applicant
to turn to the Court without further delay.
   We think that the correct interpretation of Article 22 is necessarily the
second one.
   42. We are unimpressed by the literal or textual argument which Geor-
gia stresses and bases on the use of the conjunction “or” in Article 22
(“by negotiation or by the procedures . . .”). This, it is claimed, means
that the two terms linked by the conjunction represent an alternative.

  The conjunction “or” is clearly different from the conjunction “and”,
and, generally speaking, “or” takes on great importance when a text con-

89

156 	 convention on racial discrimination (joint diss. op.)

taining it and requiring interpretation is stated in the affirmative. In such
cases, there is no better means than the conjunction “or” of indicating
that the conditions (situations, etc.) referred to in the text are alternative,
meaning that either is sufficient to give rise to the effect in question. Mat-
ters become less clear however when “or” is used in a clause in the nega-
tive, as in the present case (“which is not settled by negotiation or by the
procedures . . .”). In such a case, “or” need not mean something other
than “and”, but the latter word cannot be used because it would not
make sense in the context of the sentence. In fact, here, “or” is the equiva
lent of “neither . . . nor” : any dispute which is settled neither by nego
tiation nor by the procedures expressly provided . . . This reformulation
does not however tell us any more about whether the two modes are
alternative or cumulative.
   43. In our opinion, the conclusive argument draws on the logic and
purpose of the text under consideration. The point of this text cannot be
to require a State to go through futile procedures solely for the purpose
of delaying or impeding its access to the Court. The end sought is not
purely one of form ; if we look at it from the perspective taken by the
Court, the rule has a reasonable aim, to reserve judicial settlement for
those disputes which cannot be settled by an out-of-court means based on
agreement between the parties. Still, for this condition to be met, the
applicant must have made the necessary efforts to attempt to settle the
dispute, if it seems reasonably possible, by recourse to means enabling the
parties to reach agreement, leaving the Court to act as the last resort.
   If the text is understood in these terms, it becomes illogical to consider
the two modes referred to in Article 22 as necessarily cumulative. Each
mode ultimately depends on an understanding between the parties and
their desire to seek a negotiated solution. This is obvious in the case of
“negotiation” and it is equally true for the “procedures expressly pro-
vided for” in Part II of CERD. The Committee established by the Con-
vention has no power to impose a legally binding solution on the disputing
States. It can only encourage the States to negotiate with each other
(Art. 11) ; then, where there have been no negotiations or unsuccessful
negotiations, it can appoint a conciliation commission to make recom-
mendations (Art. 13) to be communicated to the parties, which then make
known whether or not they accept them. Ultimately, a favourable out-
come depends on the readiness of the parties to come to an agreement, in
other words, on their willingness to negotiate.
   Consequently, where a State has already tried, without success, to
negotiate directly with another State against which it has grievances, it
would be senseless to require it to follow the special procedures in Part II,
unless a formalism inconsistent with the spirit of the text is to prevail. It
would make even less sense to require a State which has unsuccessfully
pursued the intricate procedure under Part II to undertake direct negotia-
tions destined to fail before seising the Court.
   44. In short, as direct negotiation and referral to the Committee are
two different ways of doing the same thing, that is to say, seeking an

90

157 	 convention on racial discrimination (joint diss. op.)

agreement premised on the parties’ ability to reconcile their positions, it
is enough, even under the strict interpretation upheld in the Judgment, to
entitle the applicant to come before the Court if one of these two modes
has been pursued, for it would be highly unreasonable to require the
applicant then to try the other.
   45. This interpretation is also supported by the travaux préparatoires
of Article 22, specifically that part dealing with the drafting of the final
formulation — the language referring to two possible modes of non‑judi-
cial settlement.
   Up until the 1367th meeting of the Third Committee of the General
Assembly, on 7 December 1965, clause VIII of the draft prepared by the
officers of the Committee, later to become Article 22 of the Convention,
provided for the referral to the International Court of Justice of “[a]ny
dispute . . . which is not settled by negotiation”. That meeting debated
and adopted the “Three‑Power amendment”, jointly submitted by Ghana,
the Philippines and Mauritania for the purpose of adding the phrase “or
by the procedures expressly provided for in this Convention” after “nego-
tiation”. It was thus that a draft contemplating just one means of non-
judicial settlement of the dispute (negotiation) became a final text referring
to two modes (negotiation, on one hand, and resort to the special proce-
dures under the Convention, on the other).

    46. The representative of Ghana introduced the amendment in
restrained terms ; he confined himself to saying that “the Three‑Power
amendment [is] self-explanatory” and it “simply refer[s] to the procedures
provided for in the Convention” (United Nations, Official Records of
the General Assembly, Twentieth Session, Third Committee, doc. A/C.3/
SR.1367, p. 453, para. 29). The amendment was then debated and unani-
mously adopted. Most speakers approved of it as offering useful clarifica-
tion of the text. According to the representative of Canada, the amendment
“made a valuable addition to the clause” ; in the view of France’s repre-
sentative, it “brought clause VIII into line with provisions already adopted
in the matter of implementation” ; according to Italy’s delegate, it “was a
useful addition” ; and, in the view of Belgium’s, it “introduced a useful
clarification” (ibid., paras. 26, 38‑40).
    47. None of these statements is fully illuminating. The clear impression
nevertheless emerges that the three Powers’ intent in proposing their
amendment was not to impose a further condition resulting in more
limited access to the Court than under the earlier text. There is nothing to
 indicate that the amendment was aimed at making resort to the special
 procedures under Part II mandatory where direct negotiations had failed.
 More likely, the amendment was intended to make clear that recourse to
 these special procedures figured among the possible avenues for negoti-
 ated settlement. That is why it was regarded by the delegates as merely a
 “useful addition or clarification” and was easily adopted, not as a change
 in the text to make it more restrictive but as a natural, and almost self-
 evident, clarification.

91

158 	 convention on racial discrimination (joint diss. op.)

     III. What Exactly Does the Condition Requiring an Attempt
           to Settle the Dispute by Negotiation Consist of?

   48. The second prong of the alternative set forth in Article 22, namely
use of “the procedures expressly provided for in [the] Convention” hardly
raises any difficulty of interpretation, as it is clear that this refers to the
procedures established by Part II, and those procedures are described pre-
cisely by the Convention. Furthermore, the question does not arise in this
case, since it is a fact that Georgia has never sought to make use of those
procedures against Russia.
   49. However, the scope of the condition — if it is accepted as such —
of having attempted to settle the dispute by negotiation may be open to
debate. Hence the Court has endeavoured to define what it calls “the con-
cept of negotiations” in paragraphs 156 to 162.

   50. In our view, the Court has adopted too formalistic an approach to
“negotiations”, which inevitably had implications for the Court’s assess-
ment of the circumstances of the case, leading it to conclude that Georgia
had not seriously proposed to Russia that negotiations should take place
regarding the dispute between them.
   51. Paragraph 157 makes the point that “negotiations are distinct from
mere protests or disputations”. It is therefore not sufficient for one of the
parties (the applicant) to have protested against the conduct of the other
(the respondent) ; there must also have been “a genuine attempt . . . to
engage in discussions with the other disputing party, with a view to
resolving the dispute”. In other words, the applicant must have made an
offer — a serious offer — to negotiate with the respondent.
   52. Naturally, paragraph 158 states that “evidence of such an attempt
to negotiate — or of the conduct of negotiations — does not require the
reaching of an actual agreement between the disputing parties”. To have
asserted otherwise would have been most surprising. But the Judgment
then adds (Judgment, para. 159), citing a number of precedents, that it is
not enough for negotiations to have been attempted (i.e., proposed by the
applicant) ; for the condition allowing referral to the Court to be regarded
as fulfilled, those negotiations must also have failed or become futile or
deadlocked.
   53. The Court then recalls that, according to its jurisprudence, “nego-
tiations” are not confined to direct contacts between two parties ; account
should also be taken of less formal exchanges and of “diplomacy by con-
ference or parliamentary diplomacy” (ibid., para. 160). It also points out
that negotiations do not necessarily have to refer expressly to the instru-
ment that contains the compromissory clause ; it is sufficient for them to
relate to the subject‑matter of that instrument, the crucial point being
that they must concern the subject‑matter of the dispute brought before
the Court (ibid., para. 161).
   54. Even taking account of the elements of flexibility introduced by
these last considerations, we believe that the Court’s approach remains

92

159 	 convention on racial discrimination (joint diss. op.)

far too formalistic here, and, in truth, not very faithful to the general
thrust of its jurisprudence in the past.
    55. In our opinion, a firmly realistic, rather than formalistic, approach
should be taken to the question of negotiations, the approach which
hitherto the Court always has adopted.
    56. There is no general criterion — nor can there be one — which
 makes it possible to determine at what point a State is regarded as having
 complied with the obligation to attempt to negotiate with respect to its
 claims against another State, and to pursue those attempts as far as pos-
 sible, with a view to reaching an agreement.
    Everything depends on the circumstances. The level of the Court’s
 requirements is obviously bound to vary, according to the nature of the
 questions which form the subject‑matter of the dispute, and the conduct
 of the State that is being implicated. Clearly some questions, by their
 nature, lend themselves more than others to negotiation, the reconciling
 of opinions and the search for a compromise. It is also clear that the State
 which is being implicated may have a range of responses to the claim
 made against it, from complete receptiveness to the most strenuous or
 indeed point-blank rejection.
    57. The Court must therefore always make a case‑by‑case assessment.

   In every case, however, the Court should address the question not from
a formal or procedural point of view, but as a question of substance. If
the Court finds that there was no longer, on the date when the proceed-
ings were instituted — or, alternatively, that there is no longer, on the
date when it decides on its jurisdiction — a reasonable prospect of the
dispute, as presented to the Court, being settled by negotiations between
the parties, it must find jurisdiction, without entering into a convoluted
examination of every single action taken by the applicant, or those that it
could have taken.
   58. That is the essential purpose of the conditions established by a
clause such as the one that the Court must apply in this case : not to erect
needless and over‑exacting procedural obstacles liable to delay or impede
the applicant’s access to international justice, but to allow the Court to
satisfy itself, before dealing with the merits of the dispute brought before
it, that a sufficient effort has been made to resolve that dispute by means
other than judicial settlement.
   59. It is in this spirit that the Court has always hitherto applied com-
promissory clauses that require that a negotiated settlement of the dispute
must be attempted, including in cases where the applicable clause was
more clear-cut than Article 22 of CERD as to the requirement of prior
negotiation.
   60. Two precedents, among others, are significant in this respect.
   61. In the South West Africa case, the applicable clause (Article 7,
paragraph 2, of the Mandate) referred to “any dispute . . . if it cannot be
settled by negotiation”. The Respondent maintained that the dispute
brought before the Court was not one that “cannot be settled by negotia-

93

160 	 convention on racial discrimination (joint diss. op.)

tion”, and that no negotiations had taken place with a view to its settle-
ment.
   The Court replied as follows :
         “The question to consider . . . is : What are the chances of success
     of further negotiations between the Parties in the present cases for
     reaching a settlement ?
     �����������������������������������������������������������������������������������������������������������������
         Even a cursory examination of the views, propositions and argu-
     ments consistently maintained by the two opposing sides, shows that
     an impasse was reached before 4 November 1960 when the Applica-
     tions in the instant cases were filed, and that the impasse continues to
     exist.
     �����������������������������������������������������������������������������������������������������������������
         It is immaterial and unnecessary to enquire what the different and
     opposing views were which brought about the deadlock in the past
     negotiations in the United Nations, since the present phase calls for
     determination of only the question of jurisdiction.
     �����������������������������������������������������������������������������������������������������������������
         It is, however, further contended by the Respondent that the col-
     lective negotiations in the United Nations are one thing and direct
     negotiations between it and the Applicants are another, and that no
     such direct negotiations have ever been undertaken by them. But in
     this respect it is not so much the form of the negotiation that matters
     as the attitude and views of the Parties on the substantive issues of
     the question involved. So long as both sides remain adamant, and this
     is obvious even from their oral presentations before the Court, there
     is no reason to think that the dispute can be settled by further nego-
     tiations between the Parties.” (South West Africa (Ethiopia v. South
     Africa ; Liberia v. South Africa), Preliminary Objections, Judgment,
     I.C.J. Reports 1962, pp. 344-346.)

   62. In the Aerial Incident at Lockerbie cases, the applicable clause
(Article 14, paragraph 1, of the 1971 Montreal Convention for the Sup-
pression of Unlawful Acts against the Safety of Civil Aviation) referred
to “[a]ny dispute . . . which cannot be settled through negotiation”. The
Respondents maintained — one of them so maintaining when the request
for provisional measures was considered and the other at both that stage
and the preliminary objections stage — that, besides the fact that no dis-
pute existed between themselves and the Applicant regarding the interpre-
tation or application of the Montreal Convention, such a dispute, if it did
exist, had not given rise to any attempt at a negotiated settlement.
   In rejecting this objection, the Court took account of the following,
among other determining factors :
       “The Court observes that in the present case, the Respondent has
     always maintained that the destruction of the Pan Am aircraft over

94

161 	 convention on racial discrimination (joint diss. op.)

     Lockerbie did not give rise to any dispute between the Parties regard-
     ing the interpretation or application of the Montreal Convention and
     that, for that reason, in the Respondent’s view, there was nothing to
     be settled by negotiation under the Convention . . .
         Consequently, in the opinion of the Court, the alleged dispute
     between the Parties could not be settled by negotiation.” (Questions
     of Interpretation and Application of the 1971 Montreal Convention
     arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahi
      riya v. United States of America), Preliminary Objections, Judgment,
      I.C.J. Reports 1998, p. 122, para. 20.)
   63. The present case is the first in which the Court has found that it
lacks jurisdiction solely on the basis that a condition of prior negotiation
has not been fulfilled. We are convinced that this is not justified by the
circumstances of the case. Instead, the Court has substituted a formalistic
approach for the realistic, substantive approach that it has consistently
taken in the past and that, had it been retained, should have led the Court
to the opposite conclusion in the present case, given the facts. We are now
going to explain why.

     IV. Was a Sufficient Attempt Made to Settle the Dispute
                      through Negotiation?

   64. On the basis of the principles just set out, our approach in con
sidering the facts with a view to determining whether the “negotiation”
condition has been met is fundamentally different from that of the Court.

   65. The approach to the question taken in the Judgment is essentially
formalistic.
   The Court begins by identifying a limited time period — no more than
three days — which, in the Court’s view, is the period as to which evi-
dence of any attempt at negotiation by Georgia should be sought. The
period is the few days between 9 August 2008, the date, according to the
Judgment, that the dispute first materialized, and 12 August 2008, the
date the Application was filed (Judgment, para. 168).

   It seeks to ascertain whether, during that period, Georgia genuinely
offered to negotiate with Russia to try to resolve the dispute — having
already made a careful distinction (ibid., para. 157) between “protests
or disputations”, on the one hand, and “negotiations”, on the other, and
having stated that the latter “requires — at the very least — a genuine
attempt by one of the disputing parties to engage in discussions with the
other”.
   It concludes that Georgia made no offer to negotiate (as thus defined)
during the brief period under consideration (ibid., paras. 171 to 181).

95

162 	 convention on racial discrimination (joint diss. op.)

   That allows it to conclude that Georgia “did not attempt to negotiate
CERD‑related matters with the Russian Federation”, and that, therefore,
the Parties “did not engage in negotiations with respect to [Russia]’s com-
pliance with its substantive obligations under CERD” (Judgment,
para. 182). Consequently, according to the Judgment, there is no need to
ascertain whether “there has been a failure of negotiations, or [whether]
negotiations have become futile or deadlocked”, to quote paragraph 159,
since no such negotiations ever even began — and that was because of the
conduct of Georgia, which did not seek to resolve the dispute through
negotiation.
   66. In our view, this conclusion — to the effect that Georgia did not,
through its own doing, exhaust the possibility of a negotiated settlement
before submitting its dispute with Russia to the Court — is completely
unrealistic and flies in the face of the obvious. Indeed, no one can ser
iously think it reasonable to have required Georgia to attempt to resolve
its dispute with Russia through negotiations after 12 August 2008 ; it is
unrealistic to believe that on that date there remained even the slightest
chance of a negotiated settlement of the dispute, as defined before the
Court.
   67. The Court would not have reached a conclusion so far removed
from reality had it considered the question of “negotiations” not from the
formalistic perspective it chose to adopt, but from the realistic point of
view we believe it should have taken, in keeping with its earlier jurispru-
dence.
   It should have asked itself whether, on the date the proceedings were
instituted, there was still a reasonable possibility of negotiating a settle-
ment of the dispute between Georgia and Russia over the application of
CERD, and — secondarily — if that were the case, whether such a pos-
sibility still exists now. We believe that the answer to the first question is
indisputably no — and that, therefore, there is no need to consider the
second. Nothing more is required to satisfy the requirements of Article 22
in this respect.
   68. Reference must be had to Georgia’s submissions to understand the
exact substance of the dispute submitted to the Court (which is manifestly
merely one of a number of disputes between Russia and Georgia, but the
only one, whether or not the most significant, for which it has sought
judicial settlement).
   69. At the end of its Memorial, filed on 2 September 2009, Georgia
contended — and this is the essence of its claims :
     “that the Russian Federation, through its State organs, State agents
     and other persons and entities exercising governmental authority, and
     through the de facto governmental authorities in South Ossetia and
     Abkhazia and militias operating in those areas, is responsible for vio-
     lations of Articles 2 (1) (a), 2 (1) (b), 2 (1) (d), 3 and 5 of the 1965
     Convention by the following actions : (i) the ethnic cleansing of Geor-
     gians in South Ossetia ; (ii) the frustration of the right of return of

96

163 	 convention on racial discrimination (joint diss. op.)

     Georgians to their homes in South Ossetia and Abkhazia ; and (iii)
     the destruction of Georgian culture and identity in South Ossetia and
     Abkhazia” (quoted in paragraph 17 of the Judgment).

Accordingly, Georgia asserted that the Russian Federation was “under
an obligation to cease all actions” outlined above ; that Russia should
“re‑establish the situation that existed before its violations”, in particular
“by taking prompt and effective measures to secure the return of the
internally displaced Georgians to their homes in South Ossetia and
Abkhazia” ; and, finally, that Russia was under an obligation to provide
compensation for the damage caused by its violations of the 1965
Convention.
    70. Although Russia has not presented a defence on the merits, we
 know that it categorically rejects Georgia’s accusations against it based
 on CERD, in particular because it denies that the conduct of the provin-
 cial authorities of South Ossetia and Abkhazia, and of the groups acting
 in those provinces, is attributable to it, and contends that it has always
 acted with a view to maintaining peace and facilitating the resolution of
 disputes between those provincial authorities and the Georgian Govern-
 ment, and that, consequently, its international responsibility is not
 engaged as a result of the actions of the authorities in question.

   Such are the terms, and such is the precise subject, of the dispute
referred to the Court.
   71. What is required is obviously not a decision ruling in any way
whatsoever on the validity of those arguments. Whether the accusations
made by Georgia are entirely true, false, or somewhere in‑between, has
no bearing on the Court’s jurisdiction to entertain them, nor in particular
on the question whether the requirement of a prior attempt at negotiated
settlement has or has not been satisfied.
   72. On the other hand, due consideration must be given to the subject
of the dispute in making a realistic assessment of the prospects for resolu-
tion through diplomatic negotiation.
   In a case such as this, concerning the kind of dispute which rarely gives
rise to a reconciliation of positions, the applicant should not be expected
to make a formal offer to negotiate, or to suggest ways to a compromise.
In our view, it is sufficient for the applicant clearly to make known the
existence and tenor of its claims against the other party, thereby enabling
the latter to express its position — in this connection, we dispute the stark
distinction made in paragraph 157 of the Judgment between “protests”
and attempts at “negotiation” — and for the other party to have made
known unequivocally that it categorically rejects the essence of the
asserted claims.
   73. That is exactly what happened in this case.
   Contrary to what is stated in the section of the Judgment relating to
Russia’s first preliminary objection, the dispute between the Parties

97

164 	 convention on racial discrimination (joint diss. op.)

did not first appear three days before the seisin of the Court, i.e., on
9 August 2008.
     Georgia had long accused Russia of being responsible, by action or
omission, for the ethnic cleansing it alleges was committed against Geor-
gian citizens in Abkhazia and South Ossetia.
     74. We can go at least as far back as the exchange of letters between
President Saakashvili, of Georgia, and President Putin, of the Russian
Federation, in July and August 2004. In his letter, the Georgian President
plainly called into question the “impartiality of Russian peacekeeping
forces” when carrying out their mission, in connection with armed attacks
carried out by illegal units acting under the auspices of the de facto
authorities of South Ossetia against villages with populations of Geor-
gian origin. In his response, President Putin used the term “regrettable”
to describe what he called “[t]he propaganda launched by Tbilisi[,] the
main target of which in the beginning was the Russian Peacekeeping
Force and then Russia itself” (documents annexed to Georgia’s Memo-
rial, Vol. V, Anns. 309 and 310).
     75. At a meeting held by the United Nations Security Council on
26 January 2006, Georgia’s accusations against Russia were made yet
more explicit and more precise. Georgia’s representative, the Special
Envoy of the President of Georgia, criticized Russia for having “decided
to disassociate itself from supporting the basic principle . . . of territorial
integrity of Georgia within its internationally recognized borders”, add-
ing that : “[r]enouncement of the principle of determining the status of
Abkhazia within the State of Georgia does mean . . . endorsement of
ethnic cleansing of more than 300,000 citizens of Georgia” (this statement
 is quoted in paragraph 84 of the Judgment).
     76. On 24 July 2006, the Permanent Representative of Georgia trans-
 mitted to the Security Council the text of a resolution adopted by the
 Georgian Parliament on the 18th of that month ; in it the Parliament
 challenged the actions of Russian peacekeeping forces in the following
  terms :
        “Instead of demilitarization, the drastic increase of military poten-
     tial of those armed forces [militia forces taking action against citizens
     of Georgian origin] under subordination of de facto authorities of
     Abkhazia and the former Autonomous District of South Ossetia . . .,
     permanent attempts to legalize the results of ethnic cleansing the fact
     of which had been repeatedly recognized by the international com-
     munity, massive violation of fundamental human rights . . . — this is
     a reality brought about as a result of peacekeeping operations.” (Quoted
     in paragraph 86 of the Judgment ; our emphasis.)

   77. Reacting to that document, the Permanent Representative of
 ussia to the United Nations by letter of 19 July 2006 transmitted to the
R
Secretary‑General a statement of the same date from his country’s Minis-
try of Foreign Affairs, in which it is stated :

98

165 	 convention on racial discrimination (joint diss. op.)

        “During the discussion of the draft decision [the draft resolution of
     the Georgian Parliament], some deputies went so far as to say that,
     unless those conditions were accepted, the Russian peacekeepers
     would be declared unlawful and treated as occupying forces. The deci-
     sion falsely claims that the actions of the Russian peacekeepers in
     Abkhazia and South Ossetia present one of the main obstacles to
     peaceful settlement of the conflicts.

        The Russian Federation regards the decision as a provocative
     step . . . The accusations that the decision makes against the Russian
     Federation constitute a disgraceful attempt to shift the blame to
     others.” (Documents annexed to Georgia’s Written Statement,

     Vol. III, Ann. 81.)
   78. Several other statements from official Georgian representatives,
made between 2006 and 2008 and accusing Russia of complicity in ethnic
cleansing, are cited in the section of the Judgment dealing with the first
preliminary objection.
   One illustration is a statement made by Georgia’s Permanent Repre-
sentative to the United Nations at a press conference held on 3 Octo-
ber 2006, according to which :
       “It is crystal clear, that the Russian peacekeeping force is not an
     impartial, nor international [contingent]. It failed to carry out the
     main responsibilities spelled out in its mandate — create [a] favorable
     security environment for the return of ethnically cleansed hundreds
     of thousands of Georgian citizens. It became the force that works to
     artificially alienate the sides from one another.” (Judgment, para. 92.)

   Another illustration is an address made by the President of Georgia to the
United Nations General Assembly on 26 September 2007, in which he
stated : “The story of Abkhazia . . . is . . . one of the more abhorrent, hor-
rible and yet forgotten ethnic cleansings of the twentieth century. In the time
since Russian peacekeepers were deployed there, more than 2,000 Georgians
have perished and a climate of fear has persisted.” (Ibid., para. 94.)

   Similarly, a statement made in December 2006 by the Georgian Minis-
ter for Foreign Affairs expressly accuses Russia of offering “an open sup-
port and armaments to the separatist régimes widely known to have
conducted an ethnic cleansing of Georgians” (this statement is mentioned
in paragraph 93) ; a press release from the same Ministry, on 19 April 2008,
refers to the “de facto annexation of Georgia’s integral parts . . . and
neglect of human rights of an absolute majority of the regions’ popula-
tion — victims of ethnic cleansing” (ibid., para. 97) ; and yet another press
release from that Ministry, dated 17 July 2008, claims that Moscow’s true
design is “to legalize results of the ethnic cleansing . . . conducted through
Russian citizens” (ibid., para. 104).

99

166 	 convention on racial discrimination (joint diss. op.)

   79. Those various documents and statements are not disregarded by
the Judgment. They are considered in the section relating to the first pre-
liminary objection, with a view to establishing whether a dispute existed
between the Parties and, if so, from what date. Each one is dismissed as
immaterial for the purposes of the case on one of the following grounds :
although the document or statement in question makes charges against
Russia, those charges do not relate to conduct falling ratione materiae
under CERD ; although the document alleges the commission of acts of
ethnic discrimination, Russia is not expressly accused of them ; or the
claims relate to acts of ethnic cleansing committed in the early 1990s,
before CERD entered into force between the Parties.

   80. Despite the insistence with which the Court rejects each of those
documents, we do not think that its reasoning withstands careful scru-
tiny.
   It is true that the statements and documents in question do not make
explicit reference to CERD. However, it is accepted, in reliance on the
Court’s jurisprudence, in the Judgment that “[c]oncerning the substance
of negotiations, . . . the absence of an express reference to the treaty in
question does not bar the invocation of the compromissory clause” (Judg-
ment, para. 161). Therefore, it is simply a question of establishing whether
the documents in question refer in substance to racial discrimination or,
more generally, to questions capable of being covered ratione materiae
by CERD. In this respect, it is surprising to see the Court dismiss the
numerous statements in which the Georgian authorities, well before
9 August 2008, accused Russia of encouraging ethnic cleansing or
attempting to “legalize” the results of ethnic cleansing, on the grounds
that those statements are unrelated to CERD, or that they do not contain
any allegations of racial discrimination aimed at Russia.
   81. Of particular significance in this respect is the way two statements
from the Georgian Ministry of Foreign Affairs are treated in the Judgment.

   The first is that of 22 December 2006, which, as stated above, accuses
Russia of offering “an open support and armaments to the separatist
régimes widely known to have conducted an ethnic cleansing of Geor-
gians”. Without quoting it, the Judgment refers to that statement (ibid.,
para. 93), but immediately states that, in the Court’s opinion, it refers to
events which took place in the early 1990s, thus prior to Georgia’s acces-
sion to CERD. However, there is nothing in the statement from which it
may be concluded that the conduct complained of, i.e., Russia’s alleged
support of authorities carrying out acts of ethnic cleansing, occurred
before 1999. That is simply a consequence of the Court’s very liberal
interpretation.

   The second statement is that of 17 July 2008, in the form of a press
release, whereby the Georgian Ministry of Foreign Affairs asserted that
Moscow’s true design was to “to legalize results of the ethnic cleansing

100

167 	 convention on racial discrimination (joint diss. op.)

instigated by itself and conducted through Russian citizens in order to
make easier annexation of the integral part of Georgia’s internationally
recognized territory”.

   Unlike the earlier statement, this one is quoted in the Judgment
(para. 104). However, it is subject to a surprising interpretation by the
Court, according to which : “the reference to ethnic cleansing may . . . be
read as relating to the events of the early 1990s”, and “the principal theme
of the press release . . . is . . . the concern of Georgia in relation to the
status of . . . [its] territorial integrity”, so that, ultimately, that statement
“raised the issue of the proper fulfilment of the mandate of the . . . peace-
keeping force, and not the Russian Federation’s compliance with its obli-
gations under CERD”.
   Once again, we are struck by the Court’s very loose treatment of the
text that it is called upon to explain. There is nothing in the statement in
question to justify limiting its subject to events which took place in the
early 1990s. Supposing that the allegation of “ethnic cleansing” did relate
to acts committed over 15 years before the statement was made — and
there is no evidence to back up a firm conclusion to this effect — it is in
any case indisputable that the charge of attempting “to legalize results of
the ethnic cleansing” could only refer to Russia’s (alleged) conduct at the
very time when the statement was made. Moreover, the fact that the
statement questions Russia’s fulfilment of the mandate of the peacekeep-
ing forces in no way precludes it from also addressing in substance the
breach of obligations under CERD, and it clearly does so when it refers
to the goal of “legaliz[ing] results of the ethnic cleansing instigated by
itself and conducted through Russian citizens”.

   82. Faced with these repeated accusations, Russia has maintained an
immutable position. It has always denied any responsibility for acts of
ethnic cleansing, and has asserted that its armed forces acted with impar-
tiality, as peacekeeping forces, in the interest of maintaining peace and
security in the region. If there were any acts of ethnic cleansing and racial
discrimination, they were carried out by the local authorities and certain
groups in South Ossetia and Abkhazia, not by persons acting on behalf
of the Russian Federation. The conflict in this respect is between Georgia
and the two provinces, not Georgia and Russia.

  83. That unwavering stance was amply confirmed by the oral state-
ments of Russia’s representatives before the Court. By denying the exis-
tence of a dispute between itself and Georgia concerning the interpretation
or application of CERD, Russia sought in particular to stress that the
acts of ethnic cleansing and racial discrimination, were they committed,
had been carried out by individuals whose conduct was not attributable
to it, whether directly or indirectly. This shows that Russia firmly rejects,
and has always firmly rejected, Georgia’s accusations.

101

168 	 convention on racial discrimination (joint diss. op.)

   84. Accordingly, our conclusion is simple : on the date the Application
was filed, it was clearly established that there was no reasonable possibi-
lity of a negotiated settlement of the dispute as it was presented to the
Court, and the condition in Article 22, if one exists, had been met.
   85. Before concluding, we feel it necessary to reiterate that our analysis
does not imply any position on the merits. At this stage, the question for
the Court was not whether Georgia’s grievances were valid, or whether
Russia was justified in simply rejecting them, as it has done so categori-
cally. It may be that Georgia’s allegations against the Russian Federation
are completely unfounded ; it may therefore be that Russia is right in dis-
missing them wholesale and refusing to enter into negotiations over arti-
ficial claims which, in its opinion, do not warrant negotiations. But that
involves the merits of the case. Justified or not, Russia’s dismissal of
Georgia’s accusations created the necessary conditions for the Court to
be able to entertain the dispute. To recall the Judgment in the South West
Africa cases (see paragraph 61 above), “[s]o long as both sides remain
adamant, . . . there is no reason to think that the dispute can be settled
by . . . negotiations between the Parties” (South West Africa (Ethiopia v.
South Africa ; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 346).

                           General Conclusion

   86. By means of this Judgment, the Court declares that it has no juris-
diction to adjudicate a case in which, less than three years ago, it ordered
the Parties to comply with a number of provisional measures, after find-
ing prima facie that it had jurisdiction to entertain the dispute. Of course,
after full argument on jurisdiction, the Court is perfectly entitled to reach
a different conclusion from the one it reached prima facie, based on the
more limited arguments of the parties, at the provisional measures stage.
However, it is nonetheless regrettable whenever the Court renders a deci-
sion that is legally binding on the parties and, ultimately, it finds that it
does not have jurisdiction to entertain the case ; therefore, the Court may
legitimately be expected to avoid placing itself in that awkward position
except where, after the proceedings on the preliminary objections, it
uncovers sound reasons, previously not taken into account, compelling it
to decline jurisdiction. The least that can be said is that the Judgment has
not convincingly shown the Court to have been in such a situation ; far
from it.

   In addition, this is the first time that the Court has declined jurisdiction
solely on the ground that the applicant, before coming to the Court, did
not undertake sufficient efforts to resolve the dispute by means of nego-
tiation with the respondent. Hitherto, in a wide range of cases involving

102

169 	 convention on racial discrimination (joint diss. op.)

factual circumstances different from one to the next, the Court has almost
always rejected such an objection, and has never upheld such an objection
on its own. Given the subject of this dispute and the circumstances of the
case, it is difficult to understand why the Court has found this to be the
occasion to be so exacting. In reality, the explanation is that the Court
has not applied its usual criteria in this instance.
   87. We believe that the second preliminary objection should have been
rejected like the first. Further, Russia abandoned its third objection (the
objection to the Court’s jurisdiction ratione loci) as a preliminary objec-
tion during the oral proceedings, recognizing itself that the objection was
not of an exclusively preliminary character and did not, therefore, need to
be considered at that stage. Finally, the fourth preliminary objection (the
objection to the Court’s jurisdiction ratione temporis) was actually of no
practical significance, since the Applicant’s claims related to events occur-
ring after 2 July 1999, when CERD entered into force between the Par-
ties.
   88. That is why, in our view, the Court should have affirmed its juris-
diction to entertain the case, and we regret that it decided to do other-
wise.

                                              (Signed) Hisashi Owada.
                                               (Signed) Bruno Simma.
                                             (Signed) Ronny Abraham.
                                             (Signed) Joan Donoghue.
                                               (Signed) Giorgio Gaja.

103


543

           DÉCLARATION DE M. LE JUGE BENNOUNA

   J’ai voté en faveur du dispositif de l’arrêt et je considère, sous réserve
des limitations qu’il prévoit, que la Cour est compétente pour examiner,
au fond, la requête de la Croatie. Cependant, je ne suis pas d’accord avec
l’ensemble du raisonnement qui sous-tend la décision de la Cour en
faveur de sa compétence ratione personae en cette affaire. Il s’agit, en
particulier, de toute la partie de l’arrêt qui fait appel à la jurisprudence
amorcée par la Cour permanente de Justice internationale dans l’affaire
des Concessions Mavrommatis en Palestine (arrêt no 2, 1924, C.P.J.I.
série A no 2, p. 34) pour fonder la capacité d’un Etat d’être partie à l’ins-
tance aux termes du paragraphe 1 de l’article 35 du Statut (soit les para-
graphes 81 à 92 de l’arrêt).
   En effet, la Cour, après avoir rappelé (arrêt, par. 79) qu’en règle géné-
rale sa compétence doit s’apprécier au moment de l’introduction de l’ins-
tance, la date critique étant dès lors le 2 juillet 1999, souligne néanmoins
qu’elle-même, comme sa devancière, a
      « fait preuve de réalisme et de souplesse dans certaines hypothèses où
      les conditions de la compétence de la Cour n’étaient pas toutes rem-
      plies à la date de l’introduction de l’instance mais l’avaient été pos-
      térieurement, et avant que la Cour décide sur sa compétence » (ibid.,
      par. 81).
   Or, la Cour a choisi de prendre en compte les conclusions auxquelles
elle est parvenue dans ses arrêts de 2004 sur la Licéité de l’emploi de la
force, à savoir que la RFY n’était pas membre des Nations Unies, ni par-
tie au Statut de la Cour, entre la dissolution de la RFSY, en 1992, et son
admission aux Nations Unies le 1er novembre 2000. Il en découle ainsi
que la Cour, en la présente affaire, n’était pas compétente à la date de
l’introduction de l’instance par la Croatie, le 2 juillet 1999, mais qu’elle
pourrait cependant le devenir si la condition manquante, soit la qualité
de partie au Statut de la RFY, venait à être remplie avant qu’elle ne
décide sur sa compétence. En effet, toute la rationalité de la jurisprudence
Mavrommatis est fondée sur la possibilité qu’aurait le demandeur, après
le dépôt de la requête, de la réintroduire à tout moment, avant que la
compétence ne soit tranchée définitivement. Ainsi, du point de vue d’une
bonne administration de la justice, la Cour serait à même de passer outre
au vice initial qui frappait sa compétence. Telle est la logique qui fonde le
raisonnement de la Cour, encore faut-il que celui-ci soit mené à son
terme, car autrement il s’agirait d’un raisonnement boiteux qui ne peut
emporter la conviction. Il n’est pas concevable, en effet, afin de contour-
ner certains obstacles et d’éviter des difficultés, de ne pas aller au bout de

135

544     APPLICATION DE CONVENTION GÉNOCIDE (DÉCL. BENNOUNA)

la logique empruntée, sachant que la soi-disant conduite prudente de la
Cour risque de se révéler inconciliable avec la rigueur juridique.
   Je crains que la Cour ne se soit engagée dans une voie sans issue, en
refusant de tirer toutes les conséquences de la construction juridique ins-
pirée de la jurisprudence Mavrommatis. Elle se contente, en effet, de
constater que la Serbie est redevenue Membre des Nations Unies et partie
au Statut à compter du 1er novembre 2000, et que dès lors elle a la capa-
cité d’être partie à la procédure devant la Cour.
   Dans cette affaire, cependant, il reste à se demander quel est le sort de
la notification par la RFY, une fois qu’elle est devenue Membre des
Nations Unies le 1er novembre, de son adhésion à la convention sur le
génocide, contenant une réserve à l’article IX sur la compétence ratione
materiae de la Cour (adhésion en date du 6 mars 2001, devenue effective
le 10 juin suivant).
   La Cour peut-elle s’appuyer sur la jurisprudence Mavrommatis et se
déclarer compétente sans s’inquiéter de l’impact de cette adhésion assor-
tie d’une réserve ? Peut-elle se contenter de constater que la condition
manquante, de l’article 35, paragraphe 1, du Statut, a été satisfaite à par-
tir du 1er novembre et que, dès lors, la compétence de la Cour est acquise,
dans la mesure où la première condition, celle de la qualité de la RFY en
tant que partie à la convention sur le génocide, était avérée dès l’intro-
duction de l’instance par la Croatie le 2 juillet 1999 ?

   Je ne pense pas que la Cour puisse faire l’économie de l’examen de
l’adhésion du 6 mars 2001 assortie d’une réserve à l’article IX, pour la
simple raison que toute la rationalité de la jurisprudence Mavrommatis
risque de s’écrouler puisqu’elle est fondée sur la possibilité pour le deman-
deur de la saisir de nouveau et à tout moment. C’est bien la terminologie
que la Cour a utilisée dans son arrêt de 1996 dans l’affaire relative à
l’Application de la convention pour la prévention et la répression du crime
de génocide (Bosnie Herzégovine c. Yougoslavie), exceptions prélimi-
naires : « la Bosnie-Herzégovine pourrait à tout moment déposer une
nouvelle requête, identique à la présente, qui serait de ce point de vue
inattaquable » (C.I.J. Recueil 1996 (II), p. 614, par. 26).
   Il convient donc de se demander, dans le cas où la requête de la Croatie
serait présentée de nouveau après le 10 juin 2001 (soit au lendemain de
l’entrée en vigueur de l’adhésion de la RFY), si elle serait « inattaquable ».
Et la réponse à une telle question n’est possible qu’à l’issue de l’examen
de l’adhésion en question.
   Or une telle réponse, à notre avis, tombe sous le sens et elle devrait être
relativement simple. En effet, dans la mesure où la Cour a estimé que la
RFY était partie depuis le 27 avril 1992, sans discontinuité, à la conven-
tion sur le génocide, y compris son article IX, elle devrait en conclure que
l’adhésion du 6 mars 2001, assortie d’une réserve, ne peut produire aucun
effet juridique dans les relations entre les deux Parties.
   Il est établi, en effet, qu’on ne peut adhérer à un traité auquel on est
déjà partie. D’ailleurs, la Croatie a formulé une objection le 18 mai 2001

136

545     APPLICATION DE CONVENTION GÉNOCIDE (DÉCL. BENNOUNA)

contre le dépôt de l’instrument d’adhésion de la RFY à la convention sur
le génocide, au motif que celle-ci était « déjà liée par la convention ». On
ne voit pas, dès lors, quel pourrait être le sens de l’adhésion de la RFY le
6 mars 2001, si ce n’est la volonté d’échapper partiellement à son enga-
gement préalable en excluant l’article IX relatif à la compétence de la
Cour. Cela est d’autant plus probant que ce pays n’a pas recouru à une
telle procédure pour ses autres engagements conventionnels. C’est ainsi
que la RFY a notifié, par lettre en date du 6 mars 2001 au Secrétaire
général des Nations Unies, son intention de succéder à plusieurs traités
multilatéraux dont il est le dépositaire, en soulignant qu’elle « s’engage
formellement à en remplir les conditions y stipulées à partir du 27 avril
1992, date à laquelle [elle] a assumé la responsabilité de ses relations
internationales ». (Il s’agit d’une liste de traités jointe en annexe auxquels
la République socialiste fédérative de Yougoslavie était partie.)

   Il était, à mon avis, du devoir de la Cour de procéder à ce constat pour
lever toute ambiguïté quant à l’application de la jurisprudence Mavrom-
matis, dans la présente affaire, comme base de compétence. On peut
regretter qu’elle ne l’ait pas fait, probablement par excès de prudence. Or,
celle-ci n’était pas justifiée, en l’occurrence, dans la mesure où la Cour
statue avec la force relative de la chose jugée, ne valant ainsi que dans les
relations entre les deux Parties. Il en découle, finalement, que le raison-
nement sur ce point est lacunaire et donc insatisfaisant, ce qui est suscep-
tible d’affaiblir les conclusions finales de la Cour, qui sont pourtant, à
mon avis, parfaitement fondées. On s’attend de la part de l’organe judi-
ciaire principal des Nations Unies qu’il aide à clarifier les situations juri-
diques confuses, et il ne peut le faire qu’en allant au bout de la logique
inhérente au cheminement qu’il a décidé d’emprunter.

                                         (Signé) Mohamed BENNOUNA.

137