         COUR INTERNATIONALE DE JUSTICE

            RECUEIL DES ARRE| TS,
     AVIS CONSULTATIFS ET ORDONNANCES

  AFFAIRE RELATIVE A v L’APPLICATION
 DE LA CONVENTION INTERNATIONALE
UR L’E
     u LIMINATION DE TOUTES LES FORMES
     DE DISCRIMINATION RACIALE
      (GE
        u ORGIE c. FE
                    u DE
                       u RATION DE RUSSIE)

     DEMANDE EN INDICATION DE MESURES
             CONSERVATOIRES

       ORDONNANCE DU 15 OCTOBRE 2008

                2008
         INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

  CASE CONCERNING APPLICATION
OF THE INTERNATIONAL CONVENTION
ON THE ELIMINATION OF ALL FORMS
    OF RACIAL DISCRIMINATION
       (GEORGIA v. RUSSIAN FEDERATION)

  REQUEST FOR THE INDICATION OF PROVISIONAL
                  MEASURES

           ORDER OF 15 OCTOBER 2008

                      Mode officiel de citation :
Application de la convention internationale sur l’élimination de toutes
 s formes de discrimination raciale (Géorgie c. Fédération de Russie),
       mesures conservatoires, ordonnance du 15 octobre 2008,
                     C.I.J. Recueil 2008, p. 353

                           Official citation :
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. 353

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                                            Sales number    941

                                         15 OCTOBRE 2008

                                          ORDONNANCE

APPLICATION DE LA CONVENTION INTERNATIONALE
   SUR L’E
         u LIMINATION DE TOUTES LES FORMES
          DE DISCRIMINATION RACIALE
      (GE
        u ORGIE c. FE
                    u DE
                       u RATION DE RUSSIE)

         DEMANDE EN INDICATION DE MESURES
                   CONSERVATOIRES

     APPLICATION OF THE INTERNATIONAL
CONVENTION ON THE ELIMINATION OF ALL FORMS
         OF RACIAL DISCRIMINATION
      (GEORGIA v. RUSSIAN FEDERATION)

      REQUEST FOR THE INDICATION OF PROVISIONAL
                      MEASURES

                                         15 OCTOBER 2008

                                              ORDER

            INTERNATIONAL COURT OF JUSTICE

                             YEAR 2008                                         2008
                                                                            15 October
                                                                            General List
                           15 October 2008                                   No. 140

   CASE CONCERNING APPLICATION
 OF THE INTERNATIONAL CONVENTION
 ON THE ELIMINATION OF ALL FORMS
     OF RACIAL DISCRIMINATION
            (GEORGIA v. RUSSIAN FEDERATION)
    REQUEST FOR THE INDICATION OF PROVISIONAL
                    MEASURES

                               ORDER

esent : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges RANJEVA,
        SHI, KOROMA, BUERGENTHAL, OWADA, SIMMA, TOMKA, ABRAHAM,
        KEITH, SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV ; Judge ad hoc GAJA ;
        Registrar COUVREUR.

The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and to
ticles 73, 74 and 75 of the Rules of Court,
Makes the following Order :
 1. Whereas by an Application filed in the Registry of the Court on
  August 2008, the Government of Georgia instituted proceedings
 ainst the Russian Federation for alleged violations of the International
onvention on the Elimination of All Forms of Racial Discrimination
ereinafter “CERD”) ;

                                                                       4

2. Whereas Georgia, in order to found the jurisdiction of the Court,
ied in its Application on Article 22 of CERD which provides that :
   “any dispute between two or more States Parties with respect to the
   interpretation or application of this Convention, which is not settled
   by negotiation or by the procedures expressly provided for in this
   Convention, shall, at the request of any of the parties to the dispute,
   be referred to the International Court of Justice for decision, unless
   the disputants agree to another mode of settlement” ;

3. Whereas in its Application Georgia states that :
     “The Russian Federation, acting through its organs, agents, per-
   sons and entities exercising elements of governmental authority, and
   through South Ossetian and Abkhaz separatist forces under its
   direction and control, has practised, sponsored and supported racial
   discrimination through attacks against, and mass-expulsion of, eth-
   nic Georgians, as well as other ethnic groups, in the South Ossetia
   and Abkhazia regions of the Republic of Georgia” ;

 d that the Russian Federation seeks to consolidate changes in the eth-
c composition of South Ossetia and Abkhazia resulting from its actions
 y preventing the return to South Ossetia and Abkhazia of forcibly dis-
aced ethnic Georgian citizens and by undermining Georgia’s capacity
 exercise jurisdiction in this part of its territory” ; whereas Georgia con-
nds that “[t]he changed demographic situation in South Ossetia and
bkhazia is intended to provide the foundation for the unlawful asser-
 n of independence from Georgia by the de facto South Ossetian and
bkhaz separatist authorities” ;
4. Whereas Georgia explains the origin of the conflict in South Ossetia
 follows :
      “On 10 November 1989, the Regional Public Council of the South
   Ossetian Autonomous District [which formed part of the Georgian
   Soviet Socialist Republic] formally requested the Georgian Supreme
   Soviet to upgrade the status of the District to ‘Autonomous Repub-
   lic’. After the Georgian Supreme Soviet refused, on 28 November
   1990, the Regional Public Council of the South Ossetian Autono-
   mous District re-named the District the ‘Soviet Republic of South
   Ossetia’, and scheduled elections for a new Supreme Council to be
   held on 9 December 1990 . . .
      On 11 December 1990, the Georgian Supreme Soviet declared the
   9 December elections illegitimate . . ., annulled the results, and abol-
   ished the Autonomous District of South Ossetia and its Regional
   Public Council.
      Following these events, violent conflict broke out . . . Throughout
   1991, coinciding with Georgia’s Declaration of Independence on
   9 April, over 1,000 people were killed in the fighting in South Osse-

                                                                          5

  tia. During this time, some 23,000 ethnic Georgians were forced to
  flee South Ossetia and settle in other parts of Georgia” ;

 5. Whereas, in relation to the beginning of the conflict in Abkhazia,
eorgia contends that following the dissolution of the Soviet Union
 December 1991, “Abkhaz separatists under the leadership of Vladis-
v Ardzinba sought to secede from the Republic of Georgia, including
  the use of force” ;
 6. Whereas it is further contended in the Application that the Russian
 deration has “violated its obligations under CERD during three dis-
 ct phases of its interventions in South Ossetia and Abkhazia” in the
riod from 1990 to August 2008 ;
 7. Whereas Georgia asserts that the first phase of the intervention in
 uth Ossetia took place between 1990 and 1992 and in Abkhazia
tween 1991 and 1994 ; whereas Georgia claims that during this first
 ase “the Russian Federation provided essential support to South Osse-
 n and Abkhaz separatists in their attacks against, and mass-expulsion
   virtually the entire ethnic Georgian population of South Ossetia and
bkhazia” and that support from the Russian Federation included “the
ovision of weapons and supplies and the recruitment of mercenaries to
pport separatist forces in both regions, and, in the case of Abkhazia,
e deployment of Russian armed forces directly to assist military opera-
 ns conducted by the separatists” ;
 8. Whereas Georgia claims that hostilities formally came to an end in
 uth Ossetia on 24 June 1992 following the Agreement on the Principles
  the Settlement of the Georgian-Ossetian Conflict signed by Georgia,
e South Ossetian “separatist forces” and the Russian Federation ; and
 Abkhazia on 14 May 1994 following the signing of the Moscow Agree-
ent on a Ceasefire and Separation of Forces by Georgia, the Abkhaz
eparatist forces” and the Russian Federation ; whereas both agreements
ovided for the creation of joint peacekeeping forces which, according
  Georgia, were “dominated by ostensibly neutral Russian peacekeep-
 ”;
 9. Whereas Georgia maintains that the signature of these agreements,
hich “formalized the Russian Federation’s dual status as a party to
ose conflicts and as an ostensible peacekeeper and facilitator of nego-
 tions”, marked the second phase of “the Russian Federation’s inter-
ntion” in South Ossetia and Abkhazia respectively ;

10. Whereas Georgia contends that :
     “By implementing racially discriminatory policies in South Ossetia
  and Abkhazia under cover of its peacekeeping mandate, the Russian
  Federation has sought to consolidate the forced displacement of the
  ethnic Georgian and other populations that resulted from ‘ethnic
  cleansing’ from 1991 to 1994” ;

                                                                     6

hereas it claims that the Russian Federation “has supported the South
 setian and Abkhaz separatists’ quest for independence from Georgia” ;
 d whereas Georgia concludes that “[a]chieving this goal necessarily
 plies the expulsion of ethnic Georgians and other populations from
eir homes, and denial of their right to return to their homes and to live
 peace within the sovereign territory of Georgia” ;

11. Whereas Georgia asserts that, as part of its policy of racial dis-
mination, the Russian Federation “has consistently frustrated the
 urn of Internally Displaced Persons (IDPs) since the conflicts of 1991-
94” and that, as a consequence, “demographic changes forced upon
e population by the South Ossetian and Abkhaz separatists with Rus-
 n support are more likely to become permanent” ;

12. Whereas, in its Application, Georgia points out that in furtherance
  its policy to support “South Ossetian and Abkhaz separatists”, the
ussian Federation has taken other actions that violate CERD ; whereas,
  way of example, Georgia contends that “the Russian Federation has
nferred its citizenship upon almost the entire non-ethnic Georgian
 pulation of South Ossetia and Abkhazia” and that ethnic Georgians
maining in South Ossetia and Abkhazia “who have refused to renounce
eir Georgian citizenship in favour of Russian citizenship, have faced
tive intimidation and harassment by soldiers associated with [the]
med forces of the Russian Federation” ;
13. Whereas Georgia asserts that “the de facto separatist authorities of
 uth Ossetia and Abkhazia enjoy unprecedented and far-reaching sup-
 rt from the Russian Federation in the implementation of discrimina-
ry policies against the ethnic Georgian population” and that this sup-
 rt
   “has the effect of denying the right of self-determination to the eth-
   nic Georgians remaining in South Ossetia and Abkhazia and those
   seeking to return to their homes in South Ossetia and Abkhazia
   since the ceasefires of 1992 and 1994, respectively” ;

d whereas it claims that “by recognizing and supporting South Osse-
 ’s and Abkhazia’s separatist authorities, the Russian Federation is also
eventing Georgia from implementing its obligations under CERD, by
suming control over its territory” ;

14. Whereas in its Application Georgia claims that “the Russian Fed-
ation has also systematically attempted to undermine Georgia’s terri-
rial sovereignty” by taking steps to recognize the independence of
 uth Ossetia and Abkhazia ; and whereas it adds that these acts have
 gnificantly escalated tensions in South Ossetia and Abkhazia, and
 ened the door to further conflict” ;
15. Whereas Georgia claims that, as from April 2008, in addition to

                                                                       7

e measures designed to strengthen the legitimacy of the de facto insti-
 ions of the separatist authorities, “the Russian Federation [has] also
creased its military activities in both regions as a prelude to its invasion
 Georgia in August 2008” ; and whereas, according to Georgia, “Rus-
 ’s military build-up was accompanied by a campaign of discrimination
ainst ethnic Georgians and others who might be opposed to the exten-
 n of Russian influence in South Ossetia and Abkhazia” ;

16. Whereas Georgia asserts that, “in contrast to Russian attempts to
rture the creation of ethnically homogeneous States that are politically,
onomically, socially and militarily beholden to it”, Georgia has consist-
tly “strived for the integration of multi-ethnic Abkhaz and South Osse-
n societies into a democratic Georgian State” and offered both regions
nlimited autonomy” ; and whereas Georgia contends that “it has also
 adfastly pressed for the right of all IDPs (regardless of ethnicity) to
 urn to their homes” ;

17. Whereas Georgia contends that the third phase of “the Russian
deration’s intervention in South Ossetia and Abkhazia began on
August 2008, when Russian forces invaded Georgian territory” ;
18. Whereas Georgia alleges that,
   “in response to the persistent shelling of ethnic Georgian villages in
   South Ossetia by separatist forces, Georgian military forces launched
   a limited operation into territory held by ethnic separatists on
   7 August 2008 for purposes of putting a stop to the attacks” ;

hereas it explains that the Russian Federation responded to Georgia’s
tions “with a full-scale invasion” of Georgian territory on 8 August
 08, “occupied more than half of Georgia and attacked civilians and
 ilian objects” throughout the country, “resulting in significant casual-
 s and destruction” ;
 19. Whereas, according to Georgia, at the same time the situation in
bkhazia quickly began to deteriorate, with attacks against Georgian vil-
ges in the Kodori valley, bombing of Georgia’s Black Sea port of Poti
 d deployment of Russian ground troops and armoured vehicles in
bkhazia ;
 20. Whereas Georgia claims, “in its own right and as parens patriae of
  citizens”, that the Russian Federation,
   “through its State organs, State agents, and other persons and enti-
   ties exercising governmental authority, and through the South Osse-
   tian and Abkhaz separatist forces and other agents acting on the
   instructions of, and under the direction and control of the Russian
   Federation, is responsible for serious violations of its fundamental
   obligations under CERD, including Articles 2, 3, 4, 5 and 6” ;

                                                                          8

21. Whereas Georgia further claims that these violations include, but
e not limited to :

  “(a) widespread and systematic discrimination against South Osse-
       tia’s and Abkhazia’s ethnic Georgian population and other
       groups during the conflicts of 1991-1994, 1998, 2004 and 2008,
       reflected in acts including murder, unlawful attacks against
       civilians and civilian objects, torture, rape, deportation and
       forcible transfer, imprisonment and hostage-taking, enforced
       disappearance, wanton destruction and unlawful appropria-
       tion of property not justified by military necessity, and plun-
       der ;
   (b) widespread and systematic denial on discriminatory grounds
       of the right of South Ossetia’s and Abkhazia’s ethnic Geor-
       gian and other refugees and IDPs to return to their homes ;

   (c) widespread and systematic unlawful appropriation and sale of
       homes and other property belonging to South Ossetia’s and
       Abkhazia’s ethnic Georgians and other groups forcibly dis-
       placed during the conflicts of 1991-1994, 1998, 2004 and 2008
       and denied the right to return to the South Ossetian and Abk-
       haz regions ;
   (d) the continuing discriminatory treatment of ethnic Georgians
       in South Ossetia and in the Gali District of Abkhazia, includ-
       ing but not limited to pillage, hostage-taking, beatings and
       intimidation, denial of the freedom of movement, denial of
       their right to education in their mother tongue, pressure to
       obtain Russian citizenship and/or Russian passports, and
       threats of punitive taxes and expulsions for maintaining Geor-
       gian citizenship ;
   (e) the sponsoring, defending, and supporting of ethnic discrimi-
       nation by the de facto South Ossetian and Abkhaz separatist
       authorities and the recognition as lawful of a situation created
       by a serious breach of Russia’s obligations under CERD and
       of its obligations erga omnes, namely recognition in whole or
       in part of the South Ossetian and Abkhaz separatist entities
       amounting to recognition of a situation created by ‘ethnic
       cleansing’ constituting the crime against humanity of persecu-
       tion and systematic discrimination on ethnic grounds ;

   (f) preventing the Republic of Georgia from exercising jurisdiction
       over its territory in the regions of South Ossetia [and] Abkhazia
       in order to implement its obligations under CERD ; and
   (g) the launching of a war of aggression against Georgia with the
       aims of (i) securing ethnically homogeneous allies in South
       Ossetia and Abkhazia free from Georgian political, social and
       cultural influence ; (ii) permanently denying the right of dis-

                                                                      9

        placed ethnic Georgians to return to their homes in South
        Ossetia and Abkhazia ; and (iii) permanently denying all the
        people of Georgia their right to self-determination in accord-
        ance with CERD” ;

22. Whereas, at the end of its Application, Georgia asks the Court to
judge and declare that :
  “the Russian Federation, through its State organs, State agents, and
  other persons and entities exercising governmental authority, and
  through the South Ossetian and Abkhaz separatist forces and other
  agents acting on the instructions of or under the direction and con-
  trol of the Russian Federation, has violated its obligations under
  CERD by :
  (a) engaging in acts and practices of ‘racial discrimination against
       persons, groups of persons or institutions’ and failing ‘to ensure
       that all public authorities and public institutions, national and
       local, shall act in conformity with this obligation’ contrary to
       Article 2 (l) (a) of CERD ;

  (b) ‘sponsoring, defending and supporting racial discrimination’
      contrary to Article 2 (l) (b) of CERD ;

  (c) failing to ‘prohibit and bring to an end, by all appropriate
      means, including legislation as required by circumstances, racial
      discrimination’ contrary to Article 2 (l) (d) of CERD ;

  (d) failing to condemn ‘racial segregation’ and failing to ‘eradicate
      all practices of this nature’ in South Ossetia and Abkhazia, con-
      trary to Article 3 of CERD ;
  (e) failing to ‘condemn all propaganda and all organizations . . .
      which attempt to justify or promote racial hatred and discrimi-
      nation in any form’ and failing ‘to adopt immediate and posi-
      tive measures designed to eradicate all incitement to, or acts of,
      such discrimination’, contrary to Article 4 of CERD ;
  (f) undermining the enjoyment of the enumerated fundamental
      human rights in Article 5 by the ethnic Georgian, Greek and
      Jewish populations in South Ossetia and Abkhazia, contrary to
      Article 5 of CERD ;
  (g) failing to provide ‘effective protection and remedies’ against
      acts of racial discrimination, contrary to Article 6 of CERD” ;

23. Whereas Georgia also asks the Court
  “to order the Russian Federation to take all steps necessary to com-
  ply with its obligations under CERD, including :

                                                                      10

   (a) immediately ceasing all military activities on the territory of the
       Republic of Georgia, including South Ossetia and Abkhazia,
       and immediate withdrawing of all Russian military personnel
       from the same ;
   (b) taking all necessary and appropriate measures to ensure the
       prompt and effective return of IDPs to South Ossetia and Abk-
       hazia in conditions of safety and security ;
   (c) refraining from the unlawful appropriation of homes and prop-
       erty belonging to IDPs ;
   (d) taking all necessary measures to ensure that the remaining eth-
       nic Georgian populations of South Ossetia and the Gali Dis-
       trict are not subject to discriminatory treatment including but
       not limited to protecting them against pressures to assume Rus-
       sian citizenship, and respect for their right to receive education
       in their mother tongue ;
   (e) paying full compensation for its role in supporting and failing
       to bring to an end the consequences of the ethnic cleansing that
       occurred in the 1991-1994 conflicts, and its subsequent refusal
       to allow the return of IDPs ;
   (f) not to recognize in any manner whatsoever the de facto South
       Ossetian and Abkhaz separatist authorities and the fait accom-
       pli created by ethnic cleansing ;
   (g) not to take any measures that would discriminate against per-
       sons, whether legal or natural, having Georgian nationality or
       ethnicity within its jurisdiction or control ;
   (h) allow Georgia to fulfil its obligations under CERD by with-
       drawing its forces from South Ossetia and Abkhazia and allow-
       ing Georgia to restore its authority and jurisdiction over those
       regions ; and
   (i) to pay full compensation to Georgia for all injuries resulting
       from its internationally wrongful acts” ;
 24. Whereas, on 14 August 2008, Georgia, referring to Article 41 of
e Statute of the Court and to Articles 73, 74 and 75 of the Rules of
ourt, submitted a Request for the indication of provisional measures,
nding the Court’s judgment in the proceedings instituted by Georgia
 ainst the Russian Federation, in order to preserve its rights under
ERD “to protect its citizens against violent discriminatory acts by Rus-
 n armed forces, acting in concert with separatist militia and foreign
ercenaries”, including
   “unlawful attacks against civilians and civilian objects, murder,
   forced displacement, denial of humanitarian assistance, and exten-
   sive pillage and destruction of towns and villages, in South Ossetia
   and neighbouring regions of Georgia, and in Abkhazia and neigh-
   bouring regions, under Russian occupation” ;
25. Whereas Georgia observes that “[t]he continuation of these violent

                                                                       11

criminatory acts constitutes an extremely urgent threat of irreparable
rm to [its] rights under CERD in dispute in this case” ;

26. Whereas, in its Request for the indication of provisional measures,
eorgia refers to the basis of jurisdiction of the Court invoked in its
pplication, and to the facts set out and the submissions made therein ;

27. Whereas Georgia reiterates the contention made in its Application
at
   “beginning in the early 1990s and acting in concert with separatist
   forces and mercenaries in the Georgian regions of South Ossetia and
   Abkhazia, the Russian Federation has engaged in a systematic policy
   of ethnic discrimination directed against the ethnic Georgian popu-
   lation and other groups in those regions” ;

d that these actions have “directly or indirectly resulted in the death or
appearance of thousands of civilians and the internal displacement of
proximately 300,000 persons”, whose right of return is being denied ;

 28. Whereas Georgia claims that, on 8 August 2008, the Russian Fed-
ation “launched a full-scale military invasion against Georgia in sup-
 rt of ethnic separatists in South Ossetia and Abkhazia”, which has
 ulted in “hundreds of civilian deaths, extensive destruction of civilian
operty, and the displacement of virtually the entire ethnic Georgian
 pulation in South Ossetia” ; and whereas it further claims that the
thdrawal of the Georgian armed forces and the unilateral declaration
 a ceasefire did not prevent the Russian Federation from continuing its
 litary operations beyond South Ossetia into territories under the con-
ol of the Georgian Government ;

29. Whereas Georgia contends that, on 13 August 2008, the
   “Russian armed forces, acting together with South Ossetian separat-
   ist militia and foreign mercenaries, have engaged in a campaign of
   ethnic cleansing involving murder and forced displacement of ethnic
   Georgians, and the pillage and extensive destruction of villages adja-
   cent to South Ossetia” ;

30. Whereas Georgia alleges that the following facts constitute “dis-
minatory human rights abuses against Georgian citizens in and around
uth Ossetia” :

   “— Russian forces and separatist militia have summarily executed
      Georgian civilians and persons hors de combat after verifying
      their ethnicity in the villages of Nikosi, Kurta, and Armarishili ;

                                                                       12

    — Russian forces and separatist militia have engaged in wide-
      spread pillage and burning of homes in the villages of Karbi,
      Mereti, Disevi, Ksuisi, Kitsnisi, Beloti, Vanati, and Satskheneti
      and have executed elderly civilians ;
    — Russian forces have forcibly transferred the remaining ethnic
      Georgians in South Ossetia to Kurta detention camp ;

    — in Gori, Russian forces bombed the hospital, university, market
      place, and post-office, even though this is an undefended town
      without any Georgian military presence” ;

31. Whereas Georgia observes that “[t]he systematic pillage and destruc-
 n of Georgian villages is clearly intended to prevent the return of civil-
ns displaced as a result of Russia’s aggression commencing August 8” ;
32. Whereas Georgia further contends that Russian military opera-
 ns have extended to Abkhazia and beyond and have included “attacks
ainst the Black Sea port of Poti resulting in numerous civilian deaths
 d extensive destruction of civilian property” and the occupation of the
wn of Zugdidi and the subjection of its population to “widespread pil-
ge and other abuses” ; whereas Georgia asserts that Georgian civilians
 the district of Gali have been denied their freedom of movement and
 ve faced increasing intimidation and pressure to adopt Russian
 izenship ;

33. Whereas Georgia claims that “the rights which are the subject of
e dispute are set forth in Articles 2, 3, 4, 5 and 6 of CERD” ; whereas
eorgia further claims that the rights under CERD that Georgia seeks to
otect with its Request “arise from the obligations of the Russian Fed-
ation to prevent acts of ethnic discrimination”, including :

   “(a) the right to ensure that the Russian Federation and separatist
        authorities under its direction and control refrain from any
        further act or practice of ethnic discrimination against Geor-
        gian citizens and that civilians are fully protected against such
        acts in territories under the occupation or effective control of
        Russian forces, pursuant to Article 2 (1) ;

    (b) the right to ensure that the Russian Federation and separatist
        authorities under its direction and control refrain from any
        further acts resulting in the recognition of or rendering perma-
        nent the ethnic segregation of Georgian citizens through forced
        displacement or denial of the right of IDPs to return to their
        homes in South Ossetia, Abkhazia, and adjacent territories
        under the occupation or effective control of Russian forces,
        pursuant to Article 3 ;

                                                                        13

   (c) the right to ensure that the Russian Federation and separatist
       authorities under its direction and control refrain from any
       further acts violating the enjoyment by Georgian citizens of
       fundamental human rights including in particular the right to
       security of the person and protection against violence or bod-
       ily harm, the right to freedom of movement and residence
       within the borders of Georgia, the right of IDPs to return to
       their homes under conditions of safety, and the right to pro-
       tection of homes and property against pillage and destruction,
       pursuant to Article 5 ; and

   (d) the right to ensure that the Russian Federation and separatist
       authorities under its direction and control refrain from any
       acts denying to Georgian citizens under their jurisdiction effec-
       tive protection and remedies against ethnic discrimination and
       violations of human rights pursuant to Article 6” ;

34. Whereas Georgia accordingly requests the Court “as a matter of
most urgency” and “in order to prevent irreparable prejudice to the
 hts of Georgia and its citizens under CERD”, to order the following
easures :
  “(a) the Russian Federation shall give full effect to its obligations
       under CERD ;
   (b) the Russian Federation shall immediately cease and desist
       from any and all conduct that could result, directly or indi-
       rectly, in any form of ethnic discrimination by its armed
       forces, or other organs, agents, and persons and entities exer-
       cising elements of governmental authority, or through separa-
       tist forces in South Ossetia and Abkhazia under its direction
       and control, or in territories under the occupation or effective
       control of Russian forces ;

   (c) the Russian Federation shall in particular immediately cease
       and desist from discriminatory violations of the human rights
       of ethnic Georgians, including attacks against civilians and
       civilian objects, murder, forced displacement, denial of
       humanitarian assistance, extensive pillage and destruction of
       towns and villages, and any measures that would render per-
       manent the denial of the right to return of IDPs, in South
       Ossetia and adjoining regions of Georgia, and in Abkhazia
       and adjoining regions of Georgia, and any other territories
       under Russian occupation or effective control” ;
35. Whereas on 12 and 14 August 2008, dates on which the Applica-
n and the Request for the indication of provisional measures were filed

                                                                     14

  the Registry respectively, the Deputy-Registrar advised the Govern-
ent of the Russian Federation of the filing of those documents and
rthwith sent it signed originals of them, in accordance with Article 40,
 ragraph 2, of the Statute of the Court and with Article 38, para-
aph 4, and Article 73, paragraph 2, of the Rules of Court ; whereas the
eputy-Registrar also notified the Secretary-General of the United
ations of the filing of those documents ;
 36. Whereas, on 15 August 2008, the Registrar informed the Parties
at the President, acting under Article 74, paragraph 3, of the Rules of
ourt, had fixed 8 September 2008 as the date for the opening of the oral
 oceedings on the Request for the indication of provisional measures ;
 37. Whereas, also on 15 August 2008, the President, referring to Arti-
   74, paragraph 4, of the Rules of Court, addressed a communication to
e two Parties, urgently calling upon them “to act in such a way as will
 able any order the Court may take on the request for provisional meas-
 es to have its appropriate effects” ;
 38. Whereas, pending the notification under Article 40, paragraph 3,
  the Statute and Article 42 of the Rules of Court, by transmittal of the
  nted bilingual text of the Application to the Members of the United
ations, the Registrar, on 19 August 2008, informed those States of the
 ng of the Application and of its subject-matter, and of the filing of the
  quest for the indication of provisional measures ;
 39. Whereas, since the Court includes upon the Bench no judge of
eorgian nationality, the Georgian Government has availed itself of the
 ovisions of Article 31 of the Statute of the Court and has chosen
 r. Giorgio Gaja to sit as judge ad hoc in the case ;
 40. Whereas, by a Note Verbale of 19 August 2008, received in the
  gistry on the same day, the Russian Federation informed the Court of
e appointment of Agents for the purposes of the case ;
 41. Whereas, on 25 August 2008, Georgia, referring to “the rapidly
 anging circumstances in Abkhazia and South Ossetia”, submitted an
Amended Request for the Indication of Provisional Measures of Protec-
  n” (hereinafter the “Amended Request”) ;
 42. Whereas in the Amended Request Georgia claims that, “following
   invasion commencing on 8 August 2008”, the Russian Federation
sumed control over all of South Ossetia and Abkhazia as well as “adja-
nt areas within the territory of Georgia” ; whereas, according to Geor-
a, in these territories ethnic Georgians have been subjected to system-
 c discriminatory acts, including physical violence and the plunder and
 struction of their homes ; and whereas it is stated that “[t]he manifest
 jective of this discriminatory campaign is the mass-expulsion of the
hnic Georgian population from South Ossetia, Abkhazia, and other
 ighbouring areas of Georgia” ;

43. Whereas Georgia submits that in a number of specific areas of
eorgia allegedly under Russian control, “widespread and systematic

                                                                       15

 ts of violent racial discrimination” have been committed against ethnic
eorgians ; and whereas it adds that “[a] particular cause for concern is
e Russian occupation of [the] Akhalgori District, outside and to the
 st of South Ossetia, and previously under Georgian Government con-
ol” ;
 44. Whereas it is contended in the Additional Request that the Rus-
  n Federation has consolidated its “effective control” over the occupied
Georgian regions of South Ossetia and Abkhazia, as well as adjacent
  ritories” which are situated within “Georgia’s internationally recog-
zed boundaries” ; and whereas therefore, for the purposes of the fulfil-
ent by the Russian Federation of its obligations under CERD, “South
  setia, Abkhazia, and relevant adjacent regions, fall within the Russian
  deration’s jurisdiction” ;
 45. Whereas Georgia asserts in its Amended Request that it requests
e Court to indicate provisional measures in order to prevent irreparable
 ejudice “to the right of ethnic Georgians to be free from discriminatory
  atment, in particular violent or otherwise coercive acts . . . and other
 ts intended to expel them from their homes in South Ossetia, Abk-
 zia, and adjacent regions located within Georgian territory” and “to
e right of return of ethnic Georgians to South Ossetia and Abkhazia” ;

 46. Whereas Georgia alleges that, owing to the Russian Federation’s
 ntinuing discrimination against ethnic Georgians in Abkhazia, South
 setia and neighbouring areas,

   “the remaining ethnic Georgians in South Ossetia, Abkhazia, and
   adjacent regions, are at imminent risk of violent expulsion, death or
   personal injury, hostage-taking and unlawful detention, and damage
   to or loss of their homes and other property” ;

 d whereas it adds that “the prospects for the return of those ethnic
eorgians who have already been forced to flee are rapidly deteriorat-
g” ;
47. Whereas Georgia states that it urgently requests the indication of
ovisional measures
   “to avert a situation whereby the implementation of a judgment of
   the Court upholding the rights of Georgian citizens under Articles 2
   and 5 of CERD to remain in South Ossetia, Abkhazia, or adjacent
   regions, or to return to their homes in these territories, is rendered
   impossible” ;
 48. Whereas in its Amended Request
     “Georgia respectfully requests the Court as a matter of urgency to
   order the following provisional measures, pending its determination
   of this case on the merits, to prevent irreparable harm to the rights

                                                                       16

of ethnic Georgians under Articles 2 and 5 of CERD to be secure in
their persons and to be protected against violence or bodily harm in
the areas of Georgian territory under the effective control of the
Russian Federation :

(a) the Russian Federation shall take all necessary measures to
    ensure that no ethnic Georgians or any other persons are sub-
    ject to violent or coercive acts of racial discrimination, includ-
    ing but not limited to the threat or infliction of death or bodily
    harm, hostage-taking and unlawful detention, the destruction
    or pillage of property, and other acts intended to expel them
    from their homes or villages in South Ossetia, Abkhazia and/or
    adjacent regions within Georgia ;

(b) the Russian Federation shall take all necessary measures to pre-
    vent groups or individuals from subjecting ethnic Georgians to
    coercive acts of racial discrimination, including but not limited
    to the threat or infliction of death or bodily harm, hostage-tak-
    ing and unlawful detention, the destruction or theft of prop-
    erty, and other acts intended to expel them from their homes or
    villages in South Ossetia, Abkhazia and/or adjacent regions
    within Georgia ;

(c) the Russian Federation shall refrain from adopting any meas-
    ures that would prejudice the right of ethnic Georgians to par-
    ticipate fully and equally in the public affairs of South Ossetia,
    Abkhazia and/or adjacent regions of Georgia.

  Georgia further requests the Court as a matter of urgency to order
the following provisional measures to prevent irreparable injury to
the right of return of ethnic Georgians under Article 5 of CERD
pending the Court’s determination of this case on the merits :

(d) the Russian Federation shall refrain from taking any actions or
    supporting any measures that would have the effect of denying
    the exercise by ethnic Georgians and any other persons who
    have been expelled from South Ossetia, Abkhazia, and adjacent
    regions on the basis of their ethnicity or nationality, their right
    of return to their homes of origin ;
(e) the Russian Federation shall refrain from taking any actions
    or supporting any measures by any group or individual that
    obstructs or hinders the exercise of the right of return to
    South Ossetia, Abkhazia, and adjacent regions by ethnic
    Georgians and any other persons who have been expelled

                                                                    17

       from those regions on the basis of their ethnicity or national-
       ity ;
   (f) the Russian Federation shall refrain from adopting any meas-
       ures that would prejudice the right of ethnic Georgians to par-
       ticipate fully and equally in public affairs upon their return to
       South Ossetia, Abkhazia, and adjacent regions” ;

 49. Whereas, on 4 September 2008, Georgia communicated to the
ourt “Observations on Provisional Measures” consisting of a set of
 cuments relating to Georgia’s Amended Request for the indication of
ovisional measures ; and whereas, on 5 September 2008, the Russian
 deration communicated to the Court the “Contribution of the Russian
 deration to the hearings on provisional measures” also consisting of a
  of documents ;
 50. Whereas, at the public hearings held on 8, 9 and 10 Septem-
r 2008, in accordance with Article 74, paragraph 3, of the Rules of
ourt, oral statements on the Request for the indication of provisional
easures were presented by the following representatives of the Parties :

n behalf of Georgia :                   H.E. Ms Tina Burjaliani,
                                        Mr. James R. Crawford,
                                        Mr. Payam Akhavan,
                                        Mr. Paul S. Reichler ;
n behalf of the Russian Federation :    H.E. Mr. Roman Kolodkin,
                                        H.E. Mr. Kirill Gevorgian,
                                        Mr. Alain Pellet,
                                        Mr. Andreas Zimmermann,
                                        Mr. Samuel Wordsworth ;

                                * * *
51. Whereas, in its first round of oral argument, Georgia restated the
 sition set out in its Application and in its Amended Request for the
dication of provisional measures, and indicated that the requirements
r the indication by the Court of the provisional measures requested
 ve been met in the present case ;
52. Whereas Georgia claimed that “the discrimination against the eth-
c Georgian communities in Abkhazia, South Ossetia and the Gori dis-
ct gained momentum” following 8 August 2008 ; and whereas it asserted
at “in the last month, more than 158,000 ethnic Georgians have been
 ded to the number of internally displaced persons in Georgia” which
eant that “10 per cent of the Georgian population is now living in exile
 their own country” ;

53. Whereas Georgia asserted that “there is no sign that the Russian
deration and the de facto separatist authorities in South Ossetia and

                                                                     18

bkhazia intend to cease” a campaign of “sustained and violent discrimi-
 tion being waged” against ethnic Georgians in Abkhazia, South Osse-
  and the Gori district before its objective, namely “the creation of two
 ritories that are cleansed of ethnic Georgians and placed under the
 thority of separatists loyal to the Russian Federation”, has been
hieved ; and whereas, according to Georgia, “the violent discrimination
 s continued since the so-called ‘ceasefire’, since Georgia filed its Appli-
tion, and since the Request for provisional measures was put before the
ourt” ;

 54. Whereas Georgia contended that “the obligations under the Con-
ntion are evidently engaged in relation to Russia’s treatment of ethnic
eorgians in Abkhazia, South Ossetia, and other areas of Georgia under
ussian control” and reaffirmed that, for the purposes of its Request for
e indication of provisional measures, the rights at issue before the
ourt are the rights of Georgia and ethnic Georgians guaranteed under
 ticles 2 and 5 of CERD ;

55. Whereas Georgia stressed that its Request for the indication of
ovisional measures is directed specifically at the protection of the ethnic
eorgian population who are at grave risk of imminent violence against
eir person and property in the Gali district of Abkhazia, the Akhalgori
 trict of South Ossetia and the adjacent Gori district ; and whereas
eorgia claimed that “Russia exercises significant control over the Geor-
an territories under its occupation, and also controls the separatist
gimes in Abkhazia and South Ossetia” and thus “has the power to stop
 going acts of discrimination” ;

56. Whereas Georgia stated that the question of attribution would
 ve to be dealt with on the merits of the case ; whereas it contended
 wever that “the evidence already available indicates on a prima facie
 sis that acts and omissions which form the basis of Georgia’s com-
aint have been committed — and continue to be committed — by per-
ns for whose conduct Russia is responsible” ;
57. Whereas at the end of the first round of oral observations Georgia
 terated its requests made in the Amended Request for the indication of
ovisional measures and in addition asked the Court “to order the
 pondent State to permit and facilitate, and to refrain from obstructing,
e delivery of urgently needed humanitarian assistance to ethnic Geor-
ans and others remaining in territory that is under the control of Rus-
 n forces” ;

                                    *
58. Whereas, in its first round of oral argument the Russian Federa-
 n presented a brief account of the history of the region since the eight-
nth century ; whereas, regarding the first period referred to by Georgia

                                                                         19

  its Application (see paragraphs 7-8 above), the Russian Federation
plained that ethnic tensions in the Georgian autonomous regions, in
 rticular in Abkhazia and South Ossetia, had been exacerbated in the
 e 1980s with the coming to power in Georgia of nationalists seeking
dependence, such as Zviad Gamsakhurdia, the first President of Geor-
a, who launched a political programme with the slogan “Georgia for
eorgians” ; whereas the Russian Federation contended that Georgia
ok steps to deprive Abkhazia and South Ossetia of their respective
 tonomous status, which actions “provoked a reaction on the part of
e Abkhazians and Ossetians” ; whereas the Russian Federation claimed
at “Tblisi responded by sending military and paramilitary forces to
 khinvali, the capital of South Ossetia, in January 1991” leading to a
 te of civil war ; whereas, according to the Russian Federation, while on
April 1991 Georgia declared its independence, it denied the right of
 f-determination to Abkhazia and South Ossetia ; and whereas, the
ussian Federation added that a civil war broke out in 1992 in Abk-
 zia, with “the clashes between the Georgian forces and the Abkhaz
 litia caus[ing] many deaths on both sides” ;
 59. Whereas the Russian Federation indicated that “the violent phase
 the conflict in South Ossetia” came to an end by the signing on 24 June
 92 of the Treaty between the Russian Federation and Georgia on the
 nciples of the settlement of the conflict ; whereas the Russian Federa-
 n explained that, under this Treaty, a joint peacekeeping force consist-
g of three battalions — Russian, Georgian and Ossetian — was deployed
 the region ; and whereas, according to the Russian Federation, “in the
eorgian villages, it was the Georgian forces that carried out the peace-
eping duties” ;
 60. Whereas the Russian Federation claimed that the hostilities in
bkhazia were for the most part halted following the deployment of a
ussian contingent acting as the Collective Peacekeeping Force of the
ommonwealth of Independent States set up under the Moscow Agree-
ent on a Ceasefire and Separation of Forces signed between Georgia
 d Abkhazia in 1994, “under the aegis of Russia” ; whereas it added that
  August 1993, the United Nations Security Council, by its resolu-
 n 858 (1993), had decided to establish the United Nations Observer
ission in Georgia (UNOMIG), whose task was to verify respect for an
rlier ceasefire agreement of 27 July 1993 ; and whereas on 4 April 1994
eorgia, Abkhazia, the Russian Federation and the United Nations
 gh Commissioner for Refugees signed the quadripartite agreement on
e voluntary return of displaced persons ;

61. Whereas the Russian Federation contended that “the mechanisms
r peacekeeping and negotiation received the support of international
vernmental organizations such as the United Nations and the Organi-
tion for Security and Co-operation in Europe (OSCE), and of Georgia
elf” ;
62. Whereas the Russian Federation maintained that “progress was

                                                                      20

ade in the peace process until Mr. Saakashvili came to power [in Geor-
a] at the end of 2003” ; whereas it asserted that, from May 2004, troops
 d special units of the Georgian Ministry of the Interior were moved
 o the Georgian-Ossetian zone of conflict, reserved strictly for the
acekeeping forces, and that in August 2004 these troops bombarded
 khinvali in an attempt to invade it ; whereas the Russian Federation
 imed that in February 2005 President Saakashvili formally renounced
e ceasefire “which had been concluded between the parties in Novem-
r 2004 through the active mediation of Russia” ; and whereas, accord-
g to the Russian Federation, in Abkhazia “progress in the settlement
ocess was abruptly halted by the deployment of the Georgian contin-
nt in the Kodori gorge in 2006, in violation of all the agreements and of
e decisions of the United Nations” ;
 63. Whereas the Russian Federation asserted that it “had always acted
 accordance with its role as a mediator in the conflicts” and “ha[d] con-
 ued to recognize the territorial integrity of Georgia, even after the
 lding of referendums in the two regions in which the overwhelming
ajority of Ossetians and Abkhazians voted for independence” ;
 64. Whereas the Russian Federation contended that the situation in
e Ossetian-Georgian conflict zone was suddenly aggravated on 1 and 2
ugust 2008 “when Georgian military forces bombarded residential areas
  Tskhinvali, causing a number of casualties” ; whereas it claimed that
  the evening of 2 August and in the night of 3 August 2008, “Georgia
 enly manoeuvred its troops in the area of Tskhinvali, moving its forces
 d heavy armour towards the zone of conflict, which caused the civilian
 pulation to take flight” and that, on 7 August 2008, Georgian military
 its launched a massive attack on Tskhinvali, using heavy weapons in
  indiscriminate way and bombarding “residential areas of Tskhinvali,
e hospital, schools and children’s nurseries” ; whereas, according to the
ussian Federation, “much of the South Ossetian capital was destroyed,
 d many other villages in South Ossetia virtually razed to the ground” ;
hereas the Russian Federation asserted that “the Georgian venture . . .
 s caused a real humanitarian disaster”, as a result of which, in just two
 ys, 34,000 refugees (a figure which represents half the entire Ossetian
 pulation) were forced to flee towards North Ossetia and across the
ussian border ;

 65. Whereas the Russian Federation added that “the members of the
eorgian contingent of the Collective Peacekeeping Forces deliberately
 ened fire on their Russian comrades in arms” and, as a result, the
ussian Federation “lost 15 peacekeeping soldiers, with another 70
ounded” ;
 66. Whereas the Russian Federation contended that “no one now dis-
 tes that the crisis in August was caused by the attack of the Georgian
rces” ; whereas the Russian Federation claimed that, “faced with this
uation, [it] made every effort in its power to resolve the crisis by dip-
matic means” ; whereas the Russian Federation explained that it imme-

                                                                       21

ately requested a meeting of the Security Council to bring the crisis to
e attention of the international community but that this démarche was
o no avail” ; whereas, the Russian Federation claimed that conse-
 ently, “Russia had no choice but to send reinforcements to the conflict
ne in order to prevent further casualties among civilians and [Russian]
acekeeping soldiers” ; whereas, the Russian Federation pointed out
at in accordance with Article 51 of the United Nations Charter, it
 dressed a notification to this effect to the Security Council ; whereas, at
e same time, “Russia took urgent steps to provide humanitarian aid to
e refugees and to other civilians who found themselves in danger” ; and
hereas the Russian Federation stressed that “this assistance was distrib-
ed without any discrimination, thus to the Georgian victims as well” ;

67. Whereas the Russian Federation stated that, on 12 August 2008, in
oscow, the Presidents of the Russian Federation and France adopted
  principles for a political agreement “designed to bring about a per-
anent ceasefire in the Ossetian-Georgian zone of conflict” ; whereas,
cording to the Russian Federation, these six “Medvedev-Sarkozy”
 nciples “form a sound basis for restoring international peace and secu-
y in this region” ; whereas the Russian Federation recalled that these
  principles are as follows :
   “(1) non-use of force ; (2) the absolute cessation of hostilities ; (3) free
   access to humanitarian assistance ; (4) withdrawal of the Georgian
   armed forces to their permanent positions ; (5) withdrawal of the
   Russian armed forces to the line where they were stationed prior to
   the beginning of hostilities ; pending the establishment of interna-
   tional mechanisms, the Russian peacekeeping forces will take addi-
   tional security measures ; (6) an international debate on ways to
   ensure security and stability in the region” ;
 d whereas the Russian Federation stated that “the agreement protocol
ying down these principles was signed in turn by the parties to the con-
ct, namely the leaders of South Ossetia, Abkhazia and Georgia, through
e intermediary of Russia and in the presence of the OSCE and the
 ropean Union” ;
68. Whereas the Russian Federation claimed that it “immediately
gan to implement these six principles” ; whereas it explained that the
asefire was announced on 12 August 2008, and that on 16 August 2008,
e Russian forces began their withdrawal which was completed around
September 2008 ; whereas, according to the Russian Federation, at the
rrent time,
   “there is no military presence outside the security zones established
   in accordance with the fifth Medvedev-Sarkozy principle, all the
   more so because those zones coincide with the areas of responsibility
   of the peacekeeping forces as defined before Georgia launched its
   offensive” ;

                                                                            22

 69. Whereas, during the first round of oral argument, the Russian
 deration stated that, at that time, there were 3,750 Russian peacekeep-
g soldiers in Abkhazia and 3,700 Russian troops in South Ossetia ;
hereas it pointed out that in South Ossetia 272 soldiers were stationed
 observation posts along the perimeter of the security zone and, in addi-
 n, 180 soldiers were divided among ten observation posts along the
 rder between South Ossetia and Georgia, while the remaining troops
 re engaged “in mine clearing, assembling and evacuating military
uipment, rebuilding civilian infrastructure damaged in the hostilities . . .
  tributing humanitarian aid and providing medical assistance” in order
o help South Ossetia to return to normal life, including those Ossetian
 lages inhabited by Georgians” ; whereas, the Russian Federation indi-
ted that, in accordance with the fifth Medvedev-Sarkozy principle, “the
 ditional security measures taken by the Russian forces will be ended
hen an international mechanism is put in place” and added that “Rus-
   is involved in intensive negotiations on the creation of such a mechan-
m” ;
 70. Whereas the Russian Federation contended that, until the present
 sis, it merely played the role of an impartial mediator in the ethnic con-
cts in the Caucasus, acting as a guarantor of peace and security in the
gion, and had never “practised, encouraged or supported racial dis-
 mination in South Ossetia and Abkhazia” ; and whereas it asserted
at “the present dispute between Georgia and Russia has nothing to do
th racial or ethnic discrimination” ;
 71. Whereas the Russian Federation stressed that, as was apparent
om the factual context of the case, the dispute brought by Georgia
fore the Court did not relate to racial discrimination ; and whereas the
ussian Federation claimed that, in the absence of a dispute between the
 rties relating to the interpretation or application of CERD, the Court
anifestly lacked jurisdiction to deal with the merits of the proceedings
 d thus the Request for the indication of provisional measures should
  rejected ;
 72. Whereas the Russian Federation argued that Articles 2 and 5 of
ERD did not apply extraterritorially and therefore the alleged acts
voked by Georgia could not be governed by the Convention ; and
hereas the Russian Federation asserted that in any event the precondi-
 ns for seisin of the Court laid down in Article 22 of CERD had not
en satisfied ;
 73. Whereas the Russian Federation contended that Georgia had failed
  demonstrate that the criteria for the grant of provisional measures
 der Article 41 of the Statute had been met, namely, “irreparable preju-
ce to the rights of Georgia” under CERD and urgency in the adoption
  such provisional measures ;
 74. Whereas the Russian Federation submitted that, in any event, the
quested provisional measures would not be justified since the Respond-
t had not in the past, “does not at present, nor will it in the future,
ercise effective control over South Ossetia or Abkhazia” ; whereas it

                                                                         23

plained that the Russian Federation was not an occupying Power in
 uth Ossetia and Abkhazia, that it had never assumed the role of the
 sting Abkhazian and South Ossetian authorities, “recognized as such
  Georgia itself”, which “have always retained their independence and
ntinue to do so” ; and whereas the Russian Federation added that “the
ussian presence, apart from its participation in limited peace-keeping
 erations, has been restricted in time and stretches only for a few
 eks” ;
75. Whereas the Russian Federation stated that “the conduct of South
 setian and Abkhazian authorities is not conduct by organs of the Rus-
 n Federation” and explained that “South Ossetian or Abkhazian enti-
s can neither be qualified as de facto organs of the Respondent, nor
 es the Respondent effectively direct and control them” ; whereas it con-
nded that, although the situation had evolved since 7 August 2008,
here [were] no indications that, as regards effective control, the relation-
 p between the Respondent on the one hand, and South Ossetia and
bkhazia on the other, had changed in any legally relevant manner” ;
76. Whereas, according to the Russian Federation, the Georgian
 quest for the indication of provisional measures presupposes “a priori
terminations as to the role of the Russian Federation in the recent con-
ct” ; whereas the Russian Federation stated that the requested measures
 o presupposed that the Russian Federation “had been and continued
 be involved in the acts enumerated in the Request” ; whereas it further
ntended that, were the Court to adopt these measures, “it would have
  share the underlying assumption” that the Russian Federation is
deed committing such acts and is legally responsible for them, “without
e Court previously having had any chance to verify the underlying
 eged facts in an orderly procedure and with a full evidentiary hearing” ;
 d whereas the Russian Federation added that the requested measures,
adopted,
   “would impose upon the Respondent very ambiguous and unclear
   obligations, which, in any case, it [could not] comply with given that
   it is not . . . exercising effective control with regard to the territory in
   question and besides, is also legally not in a position to enforce the
   requested measures vis-à-vis South Ossetia respectively Abkhazia” ;

 77. Whereas, finally, the Russian Federation argued that the provi-
 nal measures requested by Georgia “may not be indicated since they
ould necessarily prejudge the final outcome of the case” ; whereas it
serted that, according to the Court’s jurisprudence, “a major purpose
 the proceedings under Article 41 is to avoid prejudging in any manner
hatsoever the outcome of the claim on the merits” ; and whereas the
ussian Federation added that “the very purpose of Article 41 is to pre-
 ve the respective rights of both parties” ;
 78. Whereas the Russian Federation requested the Court “to declare
at it has no jurisdiction to adjudicate upon the Application of Georgia,

                                                                            24

 reject the Request for provisional measures and to remove this case
om the General List” ;

                                   *
79. Whereas, in its second round of oral argument, Georgia restated
  position that “Georgia’s claims in its Application and the rights it
serts in both the initial and amended Requests are grounded in the
65 Convention and in that Convention alone” and that “Georgia
akes no claim here under international humanitarian law or the jus ad
 lum” ; and whereas Georgia affirmed its position that “the evidence
at has been submitted is more than sufficient to establish the facts of
 going ethnic cleansing for the purposes of a provisional measures hear-
g” and that “the risk of irreparable harm to the ethnic Georgians who
ll remain in the Akhalgori district of South Ossetia, the Gali district of
bkhazia, and the portion of the Gori district that Russian military
rces still occupy as their so-called ‘buffer zone’”, is real and grave ;

80. Whereas at the end of its second round of oral observations Geor-
a requested the Court
  “as a matter of urgency, to order the following provisional measures,
  pending its determination of this case on the merits, in order to pre-
  vent irreparable harm to the rights of ethnic Georgians under Arti-
  cles 2 and 5 of the Convention on Racial Discrimination :

  (a) The Russian Federation shall take all necessary measures to
      ensure that no ethnic Georgians or any other persons are sub-
      ject to violent or coercive acts of racial discrimination, includ-
      ing but not limited to the threat or infliction of death or bodily
      harm, hostage-taking and unlawful detention, the destruction
      or pillage of property, and other acts intended to expel them
      from their homes or villages in South Ossetia, Abkhazia and/or
      adjacent regions within Georgia ;

  (b) The Russian Federation shall take all necessary measures to
      prevent groups or individuals from subjecting ethnic Georgians
      to coercive acts of racial discrimination, including but not lim-
      ited to the threat or infliction of death or bodily harm, hostage-
      taking and unlawful detention, the destruction or theft of prop-
      erty, and other acts intended to expel them from their homes or
      villages in South Ossetia, Abkhazia and/or adjacent regions
      within Georgia ;

                                                                       25

  (c) The Russian Federation shall refrain from adopting any meas-
      ures that would prejudice the right of ethnic Georgians to par-
      ticipate fully and equally in the public affairs of South Ossetia,
      Abkhazia and/or adjacent regions of Georgia.

    Georgia further requests the Court as a matter of urgency to order
  the following provisional measures to prevent irreparable injury to
  the right of return of ethnic Georgians under Article 5 of the Con-
  vention on Racial Discrimination pending the Court’s determination
  of this case on the merits :
  (d) The Russian Federation shall refrain from taking any actions
       or supporting any measures that would have the effect of deny-
       ing the exercise by ethnic Georgians and any other persons who
       have been expelled from South Ossetia, Abkhazia, and adjacent
       regions on the basis of their ethnicity or nationality, their right
       of return to their homes of origin ;
  (e) The Russian Federation shall refrain from taking any actions
       or supporting any measures by any group or individual that
       obstructs or hinders the exercise of the right of return to South
       Ossetia, Abkhazia, and adjacent regions by ethnic Georgians
       and any other persons who have been expelled from those
       regions on the basis of their ethnicity or nationality ;

  (f) The Russian Federation shall refrain from adopting any meas-
      ures that would prejudice the right of ethnic Georgians to par-
      ticipate fully and equally in public affairs upon their return to
      South Ossetia, Abkhazia, and adjacent regions” ;

d whereas Georgia also requested the Court to order that :
    “The Russian Federation shall refrain from obstructing, and shall
  permit and facilitate, the delivery of humanitarian assistance to all
  individuals in the territory under its control, regardless of their eth-
  nicity” ;

                                   *
81. Whereas, in its second round of oral argument, the Russian Fed-
ation reiterated its position that there is no dispute between the Parties
at falls within the scope of CERD ;
82. Whereas it noted a number of recent developments relating to the
uation in the zones of conflict ; whereas, in particular, the Russian Fed-
ation mentioned an updated ceasefire plan announced on 8 September
08 following talks between Presidents Medvedev and Sarkozy in Mos-
w, and quoted its highlights as contained in an Associated Press release
 follows :

                                                                       26

     “European Union Monitors : 200 European Union monitors to
  deploy to regions surrounding South Ossetia and Abkhazia by Octo-
  ber 1.
     Russian Withdrawal : Russian peacekeeping forces to withdraw
  from posts outside the Black Sea port Poti and the area near the
  town of Senaki within seven days, on condition Georgia signs a
  pledge not to use force against the breakaway province of Abkhazia.
  Full withdrawal of Russian peacekeepers from regions surrounding
  South Ossetia and Abkhazia will take place within ten days of
  deployment of EU monitors.

    Georgian pullout : Georgian troops must return to their barracks
  by October 1.
    International talks : International talks to begin on October 15 in
  Geneva ; agenda to include security and stability in South Caucasus
  and the question of return of refugees” ;

hereas the Russian Federation submitted to the Court the full text of
e plan ; whereas it contended that the number of Russian troops sta-
 ned at observation posts along the perimeter of the security zone had
en reduced to 195 since 8 September 2008 ; and whereas it stated that
 ugees and displaced persons were returning to their places of resi-
nce ;
 83. Whereas at the end of its second round of oral observations the
ussian Federation summarized its position as follows :
     “First : The dispute that the Applicant has tried to plead before
  this Court is evidently not a dispute under the 1965 Convention. If
  there were a dispute, it would relate to the use of force, humanitar-
  ian law, territorial integrity, but in any case not to racial discrimina-
  tion.
     Second : Even if this dispute were under the 1965 Convention, the
  alleged breaches of the Convention are not capable of falling under
  the provisions of the said Convention, not the least because Arti-
  cles 2 and 5 of the Convention are not applicable extraterritorially.
     Third : Even if such breaches occurred, they could not, even prima
  facie, be attributable to Russia that never did and does not now
  exercise, in the territories concerned, the extent of control required
  to overcome the set threshold.

    Fourth : Even if the 1965 Convention could be applicable,
  which . . . is not the case, the procedural requirements of Article 22
  of the 1965 Convention have not been met. No evidence that the
  Applicant proposed to negotiate or employ the mechanisms of the
  Committee on Racial Discrimination prior to reference to this Court,
  has been nor could have been produced.

                                                                        27

      Fifth : With these arguments in mind, the Court manifestly lacks
   jurisdiction to entertain the case.
      Sixth : Should the Court, against all odds, find itself prima facie
   competent over the dispute, we submit that the Applicant has failed
   to demonstrate the criteria essential for provisional measures to be
   indicated. No credible evidence has been produced to attest to the
   existence of an imminent risk of irreparable harm, and urgency. The
   circumstances of the case definitely do not require measures, in par-
   ticular, in the light of the ongoing process of post-conflict settlement.
   And the measures sought failed to take account of the key factor
   going to discretion : the fact that the events of August 2008 were
   born out of Georgia’s use of force.

      Finally : Provisional measures as they were formulated by the
   Applicant in the Requests cannot be granted since they would impose
   on Russia obligations that it is not able to fulfil. The Russian Fed-
   eration is not exercising effective control vis-à-vis South Ossetia and
   Abkhazia or any adjacent parts of Georgia. Acts of organs of South
   Ossetia and Abkhazia or private groups and individuals are not
   attributable to the Russian Federation. These measures if granted
   would prejudge the outcome of the case” ;

d whereas the Russian Federation requested the Court “to remove the
se introduced by the Republic of Georgia on 12 September 2008 from
e General List” ;

                                 * * *
 84. Whereas the Court, under its Statute, does not automatically have
 isdiction over legal disputes between States parties to that Statute or
tween other States entitled to appear before the Court ; whereas the
ourt has repeatedly stated that one of the fundamental principles of its
atute is that it cannot decide a dispute between States without the con-
nt of those States to its jurisdiction ; and whereas the Court therefore
 s jurisdiction only between States parties to a dispute who have accepted
e jurisdiction of the Court, either in general form or for the individual
 pute concerned ;
 85. Whereas, on a request for the indication of provisional measures,
e Court need not finally satisfy itself, before deciding whether or not to
dicate such measures, that it has jurisdiction on the merits of the case,
t it may not indicate them unless the provisions invoked by the Appli-
nt appear, prima facie, to afford a basis on which the jurisdiction of the
ourt might be founded ;

                                                                         28

86. Whereas Georgia at the present stage of the proceedings seeks to
und the jurisdiction of the Court solely on the compromissory clause
ntained in Article 22 of CERD ; and whereas the Court must now pro-
ed to examine whether the jurisdictional clause relied upon does furnish
basis for prima facie jurisdiction to rule on the merits such as would
ow the Court, should it think that the circumstances so warrant, to
dicate provisional measures ;

                                    *
87. Whereas Georgia asserts that, as regards the Court’s jurisdiction
 ione personae, both Georgia and the Russian Federation are Members
 the United Nations and parties to the Statute of the Court ; whereas it
rther states that both Georgia and the Russian Federation are parties
  CERD, Georgia having deposited its instrument of accession on
 une 1999 and the Russian Federation “by virtue of its continuation of
e State personality of the USSR” which has been a party to CERD
 ce 1969 ; and whereas Georgia adds that “neither party maintains any
 ervation to article 22 of the Convention” ;

88. Whereas Georgia contends that, as regards the Court’s jurisdiction
 ione materiae, the object and purpose of CERD is to eliminate racial
 crimination in “all its forms and manifestations” ; whereas it states
at the principle of non-discrimination on racial, including ethnic,
ounds is
   “concerned not merely with discrimination against individuals but
   with collective discrimination against communities and with funda-
   mental issues relating to the composition of territorial communities,
   including the granting and withdrawal of nationality” ;

hereas Georgia points out that Article 22 of CERD confers upon the
ourt jurisdiction over “any dispute . . . with respect to the interpretation
 application of this Convention” ; whereas it stresses that the term “any
 pute” concerns either the “interpretation or application” of the Con-
ntion ; whereas it concludes that the Court has therefore “jurisdiction
 pronounce on the scope of the rights and responsibilities set out in the
onvention but also upon the consequences of breach of those rights and
 ponsibilities” ;
 89. Whereas Georgia argues that ethnic discrimination is and has been
key aspect in the conflicts in South Ossetia and Abkhazia ; whereas it
rther argues that this case is, in particular, about the ethnic cleansing,
 a form of racial discrimination, of ethnic Georgians and other minori-
 s from regions within Georgian territory, in particular, for present pur-
 ses, the regions of Abkhazia, South Ossetia and the adjacent Gori
 trict ; whereas it alleges that ethnic Georgians have been “targeted, and
rcibly expelled from these regions in great numbers and denied the

                                                                         29

 ht to return over the course of more than a decade” ; whereas it claims
at the discrimination against the ethnic Georgians communities in the
 d regions has escalated following 8 August 2008 ;

 90. Whereas Georgia contends in particular that, as a result of the
ussian Federation’s direct involvement in these ethnic conflicts and its
 ential support for the separatist de facto authorities and militias in
 uth Ossetia and Abkhazia, “ethnic Georgians have been denied their
ndamental rights under Article 5 of the Convention” (see paragraph 107
low) ; whereas, according to Georgia, the ethnic conflicts have esca-
 ed since August 2008 and the situation concerning internally displaced
rsons in the affected regions has significantly deteriorated ; whereas
eorgia contends that it “advances claims against Russia based upon
 ligations contained in the Convention on Racial Discrimination” and
 this context “the means by which Russia has apparently breached its
 ligations under the Convention are irrelevant to the Court’s jurisdic-
 n” ; whereas Georgia states that during the “Third Phase” of Russia’s
 ervention, that allegedly commenced on 8 August 2008, “the means by
hich Russia has apparently acted in violation of its obligations under
e Convention” have included, inter alia, the use of military force ; and
hereas Georgia concludes that, in its Application, it “does not invoke as
 ause of action any claim that that force is unlawful under other instru-
ents ; it is pursuing remedies based on claims arising in relation to Rus-
 ’s apparent breaches of this Convention” ;

91. Whereas Georgia asserts that, as regards the Court’s jurisdiction
 ione loci under Article 22 of CERD, it is necessary to distinguish
tween two categories of claims advanced by Georgia in its Application :
st, “claims founded upon the acts or omissions of Russia’s State organs
thin Russia itself”, and second,

   “claims founded upon the acts or omissions of persons exercising
   Russia’s governmental authority or other persons acting on the
   instructions or under the control of Russia within Georgian terri-
   tory, particularly in Abkhazia and South Ossetia, as well as other
   areas of Georgia under de facto occupation by Russian military
   forces” ;
hereas, according to Georgia, no question concerning the spatial scope
 the obligations under the Convention arises in respect of the first cat-
ory of claims ; and whereas Georgia contends that, in relation to the
cond category of claims,
   “the Court needs to be satisfied on a prima facie basis that Russia’s
   obligations under the Convention extend to acts and omissions

                                                                       30

   attributable to Russia which have their locus within Georgia’s terri-
   tory and in particular in Abkhazia and South Ossetia” ;
 92. Whereas Georgia argues that CERD “does not contain a general
ovision imposing a spatial limitation on the obligations it creates” ;
hereas Georgia notes, in particular, that no spatial limitation is included
 Articles 2 and 5 which stipulate the “obligations of Russia and the cor-
 ponding rights of Georgia” that are in issue before the Court for the
 rposes of the Request for the indication of provisional measures ;
hereas Georgia observes that even if the Convention were to be con-
 ued as containing a general limitation limiting the spatial scope of its
 ligations, “this would not preclude the claims asserted by Georgia in
 s Application and in this Request” because “Abkhazia and South
 setia have been within the power or effective control of Russia since
eorgia lost control over those regions following the hostilities” ; and
hereas Georgia adds that the Russian invasion and deployment of addi-
 nal military forces within Abkhazia and South Ossetia in August 2008
 as only served to consolidate further its effective control over those
gions” ;

93. Whereas Georgia claims that, although certain aspects of the
esent dispute, as indicated in the Application, predate Georgia’s acces-
 n to CERD, there is no difficulty in establishing “ratione temporis
 isdiction” in relation to what Georgia has described as the “Third
 ase of Russia’s Intervention in South Ossetia and Abkhazia”, which
egedly commenced in August 2008 ; whereas Georgia stresses that
   “the rights in issue which form the basis for the present Request for
   provisional measures are rights under the Convention that Georgia
   submits have been, and continue to be, violated by Russia during
   this third temporal phase of the dispute” ;

 94. Whereas, turning to the question of negotiations or recourse to the
ocedures provided for in CERD and referred to in Article 22, Georgia
firms that the present dispute between the Parties has not been settled
   negotiation and that the procedures provided for in CERD “are not
 signed to be exclusive or compulsory in respect of disputes concerning
e subject-matter of the Convention” ; whereas, according to Georgia,
here is no indication in the Convention that all the procedures in Part
 are to be exhausted before recourse is made to this Court” and there-
re “it is not a condition precedent for the Court’s jurisdiction” ; and
hereas Georgia adds that, in any event, there have been extensive bilat-
al contacts between the Parties and thus that, even if Article 22 of
ERD were considered to lay down a condition precedent for the seisin
  the Court, that condition has been satisfied ;

                                   *
                                                                        31

95. Whereas the Russian Federation, referring to the basis of jurisdic-
 n invoked by Georgia, namely Article 22 of CERD, states that the dis-
 te which Georgia has brought before this Court is not a dispute on
cial discrimination under the said Convention, but rather a dispute
ating to the use of force, the principles of territorial integrity and self-
termination, non-interference in the internal affairs of States, armed
tivities and international humanitarian law ; and whereas, accordingly,
e Russian Federation is of the view that “the Court manifestly lacks
 isdiction in the present case” ;
96. Whereas the Russian Federation asserts that the object of the dis-
 te which Georgia seeks to have adjudicated by the Court “is not at all
eged violations by Russia of its obligations under the 1965 Conven-
 n”, but rather solely “allegations of unlawful actions in violation of
 ernational humanitarian law in South Ossetia and Abkhazia” ;

 97. Whereas the Russian Federation stresses that, in the Applicant’s
 esentation of the supposedly relevant facts, the latter deals only with
e various phases “of Russia’s intervention” in South Ossetia and Abk-
 zia and that “it is indeed this ‘intervention’ which Georgia seeks to
 ve condemned by the Court” ; and whereas the Russian Federation
 ds that Georgia’s “Observations” concern only armed attacks, indis-
 minate attacks on civilians, the use of cluster bombs, declarations and
cognition of independence and the plight of refugees and displaced per-
 ns, but not issues of racial discrimination ; and whereas, according to
ussia, the dispute between the Parties relates to “the intervention that
eorgia blames the Russian Federation for undertaking in response to its
wn action with respect to Abkhazia and South Ossetia and the alleged
olations of the rules of humanitarian law on that occasion” ;

98. Whereas the Russian Federation asserts that, while “there is
 questionably a dispute (or more than one dispute) between the Parties”,
 s dispute does not concern the interpretation or application
   CERD ; whereas, according to the Russian Federation, this
 lows from “the pleadings submitted by Georgia and the file it has
oduced” as well as from “the attitude taken by the Respondent since
e very early 1990s” ; whereas the Russian Federation claims that,
 spite Georgia’s contention that a dispute relating to CERD has
isted between Georgia and the Russian Federation since 1991, the
eorgian Government has failed to mention this dispute for 18 years
  its relations with Russia, in the Security Council or the OSCE,
  the organ established under the Convention to deal with it (the
ommittee on the Elimination of Racial Discrimination) as well as in
   recent request for interim measures, of 11 and 12 August 2008,
  the European Court of Human Rights, “which does not refer to
 ticle 14 of the Convention” ; whereas the Russian Federation
aims that “this failure to act, this silence consistently maintained
 er so many years, indisputably attests to the absence in the view of

                                                                         32

eorgia’s leaders . . . of any dispute relating to the interpretation and
 plication of the Convention” ;
 99. Whereas the Russian Federation notes that, since Georgia ratified
ERD in 1999 it has submitted three periodic reports to the Committee
 t that, in none of these, did Georgia invoke any breaches by the Rus-
 n Federation of its obligations under CERD, nor did it refer to any
 pute with the Russian Federation — “no such dispute being men-
 ned either in the periodic reports or during examination of them in the
 cussions between Committee members and Georgia’s representatives” ;
hereas the Russian Federation stresses that

   “it is particularly telling that no mention whatsoever was made of
   any dispute between Georgia and Russia over the application of the
   Convention during the CERD’s most recent session, which con-
   cluded in Geneva on 15 August 2008, one week after the armed con-
   flict broke out — . . . at the very time the Committee was formulat-
   ing its concluding observations on the Russian Federation’s eight-
   eenth and nineteenth periodic reports” ;
d whereas the Russian Federation observes that Georgia could have
sed the Committee pursuant to Article 11 while it was in session and
uld have brought “its grievances to the Committee’s attention” in
der to make use of the
   “early warning procedure in place in the CERD since 1993, enabling
   the Committee to react in urgent situations by seeking explanations
   from the State party concerned or by requesting intervention by
   other United Nations organs, including the Security Council or Sec-
   retary-General” ;
100. Whereas the Russian Federation contends that the wording of
 ticles 2 and 5 of CERD demonstrates that the different obligations
ted therein “are clearly phrased as obligations to be implemented
thin each member State” and that therefore these provisions “do not
ply extraterritorially” ; whereas it states that “Articles 2 and 5 of
ERD — upon which Georgia relies — do not bind the Respondent out-
 e its own territory” ; whereas, the Russian Federation maintains that,
cordingly, “Russia’s extraterritorial conduct is not governed by Arti-
 s 2 and 5 of CERD, hence those provisions cannot form the basis for
e requested interim order either” ;

101. Whereas the Russian Federation argues that Article 22 of CERD
ys down procedural preconditions for the seisin of the Court, namely
at only if the dispute in question “is not settled by negotiation or by the
ocedures expressly provided for in this Convention” can it be referred
 the Court ; whereas the Russian Federation claims that “failing nego-
 tion and/or recourse to the procedures laid down by the Convention”

                                                                        33

e Court cannot be seised of a dispute ; and whereas, according to the
ussian Federation, this interpretation is endorsed by the travaux
éparatoires, which show that “referral to the Court was seen by those
ho drafted the Convention . . . as a last resort when all other possibili-
 s have proved ineffective” ;
 102. Whereas the Russian Federation claims that, in the present case,
here has never been the slightest negotiation between the Parties on the
 erpretation or application of the Convention on the elimination of
cial discrimination”, that the procedures laid down by CERD have not
en initiated either by the Russian Federation or by Georgia and that
ven after the start of hostilities, Georgia did not refer the matter to the
ommittee on the Elimination of Racial Discrimination] under Arti-
  11 of the Convention” ; whereas, according to the Russian Federation,
e question of whether the negotiations and recourse to the Committee
e cumulative or alternative preconditions is irrelevant because “there
 s been neither negotiation nor recourse to the procedure in Article 11
r Article 14)” of CERD ; and whereas the Russian Federation asserts
nsequently that, as the preconditions in Article 22 have not been met,
eorgia has “no possibility of unilaterally seising the Court” and that the
ourt thus has no jurisdiction ;
 103. Whereas the Russian Federation concludes that, in the absence of
dispute relating to CERD, the Court manifestly lacks jurisdiction and
at, even if such a dispute existed, in view of the fact that “it has in any
se never given rise to the slightest attempt to reach a settlement
tween the Parties” and that “before Georgia filed its Application with
e Court, on 12 August last, the Russian Federation never even sus-
cted its existence”, the lack of jurisdiction would also be manifest since
e preconditions for the seisin of the Court laid down in Article 22 have
 t been met ;

                                   *
104. Whereas Article 22 of CERD, which Georgia invokes as the basis
jurisdiction of the Court in the present case, reads as follows :

      “Any dispute between two or more States Parties with respect to
   the interpretation or application of this Convention, which is not
   settled by negotiation or by the procedures expressly provided for in
   this Convention, shall, at the request of any of the parties to the dis-
   pute, be referred to the International Court of Justice for decision,
   unless the disputants agree to another mode of settlement” ;

105. Whereas, according to the information available from the Sec-
 ary-General of the United Nations as depositary, Georgia and the
ussian Federation are parties to CERD ; whereas Georgia deposited its
 trument of accession on 2 June 1999 without reservation ; whereas the

                                                                        34

nion of Soviet Socialist Republics deposited its instrument of ratifica-
 n on 4 February 1969 with a reservation to Article 22 of the Conven-
 n ; whereas, by a communication received by the depositary on 8 March
89, the Government of the Union of Soviet Socialist Republics notified
e Secretary-General that it had decided to withdraw the reservation
ating to Article 22 ; and whereas the Russian Federation, as the State
ntinuing the legal personality of the Union of Soviet Socialist Repub-
s, is a party to CERD without reservation ;

106. Whereas the definition of racial discrimination in Article 1, para-
aph 1, of CERD is as follows :
  “any distinction, exclusion, restriction or preference based on race,
  colour, descent, or national or ethnic origin which has the purpose
  or effect of nullifying or impairing the recognition, enjoyment or
  exercise, on an equal footing, of human rights and fundamental
  freedoms in the political, economic, social, cultural or any other field
  of public life” ;

107. Whereas Articles 2 and 5 of CERD, violations of which are
voked by Georgia in the current proceedings, are couched in the fol-
wing terms :
     “Article 2
     1. States Parties condemn racial discrimination and undertake to
  pursue by all appropriate means and without delay a policy of elimi-
  nating racial discrimination in all its forms and promoting under-
  standing among all races, and, to this end :
  (a) Each State Party undertakes to engage in no act or practice of
        racial discrimination against persons, groups of persons or
        institutions and to ensure that all public authorities and public
        institutions, national and local, shall act in conformity with this
        obligation ;
  (b) Each State Party undertakes not to sponsor, defend or support
        racial discrimination by any persons or organizations ;

  (c) Each State Party shall take effective measures to review govern-
      mental, national and local policies, and to amend, rescind or
      nullify any laws and regulations which have the effect of creat-
      ing or perpetuating racial discrimination wherever it exists ;

  (d) Each State Party shall prohibit and bring to an end, by all
      appropriate means, including legislation as required by circum-
      stances, racial discrimination by any persons, group or organi-
      zation ;
  (e) Each State Party undertakes to encourage, where appropriate,
      integrationist multiracial organizations and movements and

                                                                        35

      other means of eliminating barriers between races, and to dis-
      courage anything which tends to strengthen racial division.
   2. States Parties shall, when the circumstances so warrant, take, in
the social, economic, cultural and other fields, special and concrete
measures to ensure the adequate development and protection of cer-
tain racial groups or individuals belonging to them, for the purpose
of guaranteeing them the full and equal enjoyment of human rights
and fundamental freedoms. These measures shall in no case entail as
a consequence the maintenance of unequal or separate rights for dif-
ferent racial groups after the objectives for which they were taken
have been achieved” ;
   “Article 5
   In compliance with the fundamental obligations laid down in arti-
cle 2 of this Convention, States Parties undertake to prohibit and to
eliminate racial discrimination in all its forms and to guarantee the
right of everyone, without distinction as to race, colour, or national
or ethnic origin, to equality before the law, notably in the enjoyment
of the following rights :
(a) The right to equal treatment before the tribunals and all other
      organs administering justice ;
(b) The right to security of person and protection by the State
      against violence or bodily harm, whether inflicted by govern-
      ment officials or by any individual group or institution ;
(c) Political rights, in particular the right to participate in elec-
      tions — to vote and to stand for election — on the basis of uni-
      versal and equal suffrage, to take part in the Government as
      well as in the conduct of public affairs at any level and to have
      equal access to public service ;

(d) Other civil rights, in particular :
        (i) The right to freedom of movement and residence within
            the border of the State ;
       (ii) The right to leave any country, including one’s own, and
            to return to one’s country ;
      (iii) The right to nationality ;
      (iv) The right to marriage and choice of spouse ;
       (v) The right to own property alone as well as in association
            with others ;
      (vi) The right to inherit ;
     (vii) The right to freedom of thought, conscience and religion ;
    (viii) The right to freedom of opinion and expression ;
      (ix) The right to freedom of peaceful assembly and associa-
            tion ;
(e) Economic, social and cultural rights, in particular :
      (i) The rights to work, to free choice of employment, to just

                                                                    36

              and favourable conditions of work, to protection against
              unemployment, to equal pay for equal work, to just and
              favourable remuneration ;
         (ii) The right to form and join trade unions ;
        (iii) The right to housing ;
        (iv) The right to public health, medical care, social security
              and social services ;
         (v) The right to education and training ;
        (vi) The right to equal participation in cultural activities ;

   (f) The right of access to any place or service intended for use by
       the general public, such as transport hotels, restaurants, cafes,
       theatres and parks” ;
108. Whereas the Parties disagree on the territorial scope of the appli-
tion of the obligations of a State party under CERD ; whereas Georgia
 ims that CERD does not include any limitation on its territorial appli-
tion and that accordingly “Russia’s obligations under the Convention
tend to acts and omissions attributable to Russia which have their
cus within Georgia’s territory and in particular in Abkhazia and South
 setia” ; whereas the Russian Federation claims that the provisions of
ERD cannot be applied extraterritorially and that in particular Arti-
 s 2 and 5 of CERD cannot govern a State’s conduct outside its own
 rders ;

 109. Whereas the Court observes that there is no restriction of a gen-
al nature in CERD relating to its territorial application ; whereas it
rther notes that, in particular, neither Article 2 nor Article 5 of CERD,
 eged violations of which are invoked by Georgia, contain a specific ter-
orial limitation ; and whereas the Court consequently finds that these
ovisions of CERD generally appear to apply, like other provisions of
  truments of that nature, to the actions of a State party when it acts
yond its territory ;
 110. Whereas Georgia claims that the dispute it brings to the Court
ncerns the interpretation and application of CERD ; whereas the Rus-
 n Federation contends that the dispute really relates to the use of
rce, principles of non-intervention and self-determination and to viola-
 ns of humanitarian law ; and whereas it is for the Court to determine
  ma facie whether a dispute within the meaning of Article 22 of CERD
  sts ;
 111. Whereas the Parties differ on the question of whether the events
hich occurred in South Ossetia and Abkhazia, in particular following
August 2008, have given rise to issues relating to legal rights and obli-
 tions under CERD ; whereas Georgia contends that the evidence it has
bmitted to the Court demonstrates that events in South Ossetia and in
bkhazia have involved racial discrimination of ethnic Georgians living
 these regions and therefore fall under the provisions of Articles 2 and

                                                                      37

of CERD ; whereas it alleges that displaced ethnic Georgians, who have
en expelled from South Ossetia and Abkhazia, have not been permitted
 return to their place of residence even though the right of return is
pressly guaranteed by Article 5 of CERD ; whereas Georgia claims in
 dition that ethnic Georgians have been subject to violent attacks in
 uth Ossetia since the 10 August 2008 ceasefire even though the right of
curity and protection against violence or bodily harm is also guaran-
 d by Article 5 of CERD ; whereas the Russian Federation claims that
e facts in issue relate exclusively to the use of force, humanitarian law
 d territorial integrity and therefore do not fall within the scope of
ERD ;

 112. Whereas, in the view of the Court, the Parties disagree with
gard to the applicability of Articles 2 and 5 of CERD in the context of
e events in South Ossetia and Abkhazia ; whereas, consequently, there
 pears to exist a dispute between the Parties as to the interpretation and
 plication of CERD ; whereas, moreover, the acts alleged by Georgia
 pear to be capable of contravening rights provided for by CERD, even
 certain of these alleged acts might also be covered by other rules of
 ernational law, including humanitarian law ; whereas this is sufficient
  this stage to establish the existence of a dispute between the Parties
pable of falling within the provisions of CERD, which is a necessary
ndition for the Court to have prima facie jurisdiction under Article 22
 CERD ;
 113. Whereas the Court, having established that such a dispute between
e Parties exists, still needs to ascertain whether the procedural condi-
 ns set out in Article 22 of the Convention have been met, before decid-
g whether or not it has prima facie jurisdiction to deal with the case and
cordingly has also the power to indicate provisional measures if the cir-
mstances are found so to require ; whereas it is recalled that Article 22
ovides that a dispute relating to the interpretation or application of
ERD may be referred to the Court if it “is not settled by negotiation or
   the procedure expressly provided for in this Convention” ; whereas
eorgia claims that this phrase is descriptive of the fact that a dispute
 s not so been settled and does not represent conditions to be exhausted
fore the Court can be seized of the dispute ; and whereas, according to
eorgia, bilateral discussions and negotiations relating to the issues
hich form the subject-matter of the Convention have been held between
e Parties ; whereas, for its part, the Russian Federation argues that pur-
ant to Article 22 of CERD, prior negotiations or recourse to the pro-
dures under CERD constitute an indispensable precondition for the
 sin of the Court ; and whereas it stresses that no negotiations have been
ld between the Parties on issues relating to CERD nor has Georgia, in
cordance with the procedures envisaged in the Convention, brought
 y such issues to the attention of the Committee on the Elimination of
acial Discrimination ;

                                                                       38

114. Whereas the structure of Article 22 of CERD is not identical to
at in certain other instruments which require that a period of time
ould have elapsed or that arbitration should have been attempted
fore initiation of any proceedings before the Court ; whereas the phrase
ny dispute . . . which is not settled by negotiation or by the procedure
pressly provided for in this Convention” does not, in its plain meaning,
ggest that formal negotiations in the framework of the Convention or
course to the procedure referred to in Article 22 thereof constitute pre-
nditions to be fulfilled before the seisin of the Court ; whereas however
 ticle 22 does suggest that some attempt should have been made by the
 imant party to initiate, with the Respondent Party, discussions on
ues that would fall under CERD ;

 115. Whereas it is apparent from the case file that such issues have
en raised in bilateral contacts between the Parties, and, that these
 ues have manifestly not been resolved by negotiation prior to the filing
  the Application ; whereas, in several representations to the United
ations Security Council in the days before the filing of the Application,
ose same issues were raised by Georgia and commented upon by the
ussian Federation ; whereas therefore the Russian Federation was made
 are of Georgia’s position in that regard ; and whereas the fact that
ERD has not been specifically mentioned in a bilateral or multilateral
ntext is not an obstacle to the seisin of the Court on the basis of Arti-
  22 of the Convention ;
 116. Whereas Article 22 of CERD refers also to “the procedures
pressly provided for” in the Convention ; whereas, according to these
ocedures, “if a State Party considers that another State Party is not giv-
g effect to the provisions of this Convention” the matter may properly
  brought to the attention of the Committee on the Elimination of
acial Discrimination ; whereas the Court notes that neither Party claims
at the issues in dispute have been brought to the attention of the Com-
 ttee ;
 117. Whereas the Court, in view of all the foregoing, considers that,
 ma facie, it has jurisdiction under Article 22 of CERD to deal with the
se to the extent that the subject-matter of the dispute relates to the
nterpretation or application” of the Convention ; and whereas the
ourt may accordingly address the present Request for the indication of
ovisional measures ;

                                  * *
 118. Whereas the power of the Court to indicate provisional measures
 der Article 41 of the Statute of the Court has as its object the preserva-
 n of the respective rights of the parties pending the decision of the
ourt, in order to ensure that irreparable prejudice shall not be caused to
 hts which are the subject of dispute in judicial proceedings ; and
hereas it follows that the Court must be concerned to preserve by such

                                                                        39

easures the rights which may subsequently be adjudged by the Court to
long either to the Applicant or to the Respondent (Application of the
 nvention on the Prevention and Punishment of the Crime of Genocide
 osnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Pro-
 ional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19,
 ra. 34 ; Land and Maritime Boundary between Cameroon and Nigeria
 ameroon v. Nigeria), Provisional Measures, Order of 15 March 1996,
C.J. Reports 1996 (I), p. 22, para. 35) ; whereas a link must therefore
  established between the alleged rights, the protection of which is the
bject of the provisional measures being sought, and the subject of the
oceedings before the Court on the merits of the case ;
119. Whereas, according to Georgia’s Application, the rights that
eorgia and its nationals may have on the basis of Articles 2, 3, 4, 5
 d 6 of CERD constitute the subject of the proceedings pending before
e Court on the merits of the case ;
120. Whereas the legal rights which Georgia seeks to have protected
  the indication of provisional measures are enumerated in the Request
 Georgia for the indication of such measures filed on 14 August 2008 as
 lows :

   “(a) the right to ensure that the Russian Federation and separatist
        authorities under its direction and control refrain from any
        further act or practice of ethnic discrimination against Geor-
        gian citizens and that civilians are fully protected against such
        acts in territories under the occupation or effective control of
        Russian forces, pursuant to Article 2 (1) ;

    (b) the right to ensure that the Russian Federation and separatist
        authorities under its direction and control refrain from any
        further acts resulting in the recognition of or rendering perma-
        nent the ethnic segregation of Georgian citizens through forced
        displacement or denial of the right of IDPs to return to their
        homes in South Ossetia, Abkhazia, and adjacent territories
        under the occupation or effective control of Russian forces,
        pursuant to Article 3 ;

    (c) the right to ensure that the Russian Federation and separatist
        authorities under its direction and control refrain from any
        further acts violating the enjoyment by Georgian citizens of
        fundamental human rights including in particular the right to
        security of the person and protection against violence or bod-
        ily harm, the right to freedom of movement and residence
        within the borders of Georgia, the right of IDPs to return to
        their homes under conditions of safety, and the right to pro-
        tection of homes and property against pillage and destruction,
        pursuant to Article 5 ; and

                                                                      40

    (d) the right to ensure that the Russian Federation and separatist
        authorities under its direction and control refrain from any
        acts denying to Georgian citizens under their jurisdiction effec-
        tive protection and remedies against ethnic discrimination and
        violations of human rights pursuant to Article 6” ;

121. Whereas in its Amended Request (see paragraph 41 above), Geor-
a, referring to Articles 2 and 5 of CERD, states that it seeks to protect
he right to security of person and protection against violence or bodily
 rm” and “the right of return” provided for in the above-mentioned
 ticles of the Convention ;
122. Whereas, in its Amended Request, Georgia argues with regard to
ese rights, in particular, as follows :
     “By its Application filed on 12 August 2008, Georgia is seeking,
  inter alia, the Court’s order directing the Russian Federation to take
  all necessary measures to ensure that the remaining ethnic Georgian
  populations of South Ossetia and Abkhazia are not subject to dis-
  criminatory treatment contrary to Articles 2 and 5 of CERD. Pend-
  ing the Court’s consideration of the merits of Georgia’s claims and
  its request for relief, Georgia respectfully requests the Court to indi-
  cate provisional measures to prevent irreparable prejudice to the
  right of ethnic Georgians to be free from discriminatory treatment,
  in particular violent or otherwise coercive acts, including but not
  limited to the threat or infliction of death or bodily harm, hostage-
  taking and detention based on ethnicity, the destruction and pillage
  of property, and other acts intended to expel them from their homes
  in South Ossetia, Abkhazia, and adjacent regions located within
  Georgian territory.

  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
     In its Application, Georgia seeks, inter alia, the Court’s order to
  direct the Russian Federation to take all necessary measures to per-
  mit and facilitate the return of displaced ethnic Georgians to South
  Ossetia and Abkhazia in conditions of safety and security in recogni-
  tion of the right of return guaranteed under Article 5 of CERD.
  Pending the Court’s consideration of the merits of Georgia’s claims
  under CERD and its request for relief, Georgia respectfully requests
  the Court to indicate provisional measures to prevent irreparable
  prejudice to the right of return of ethnic Georgians to South Ossetia
  and Abkhazia” ;

 123. Whereas at the hearings Georgia reiterated that the rights for
hich it “seeks protection both in its Amended Request for provisional

                                                                       41

easures and in its Application are the specific rights guaranteed by Arti-
 s 2 and 5 of the Convention” ; and whereas it referred to these rights as
 lows :
      “Under Article 2, paragraph 1 (a) and (b), Georgia has a right to
   have Russia, as a State party to the Convention, ‘engage in no act or
   practice of racial discrimination against persons, groups of persons
   or institutions’ and to undertake ‘not to sponsor, defend or support
   racial discrimination by any persons or organizations’. Under para-
   graph 1 (d) of Article 2, Georgia also has the right to have Russia
   ‘prohibit and bring to an end, by all appropriate means . . . racial
   discrimination by any persons, group or organization’. The specific
   rights protected by Article 5 are : first, the right under Article 5 (b)
   ‘to security of person and protection by the State against violence or
   bodily harm, whether inflicted by government officials or by any
   individual, group or institution’ ; second, the right under Arti-
   cle 5 (d) (i) ‘to freedom of movement and residence within the bor-
   der of the State’ ; third, the right under Article 5 (d) (ii) ‘to return’ ;
   fourth, the right under Article 5 (d) (iii) ‘to nationality’ ; and fifth,
   the right under Article 5 (d) (v) ‘to own property’” ;

 124. Whereas the Russian Federation contends that the required con-
ction between the rights which Georgia seeks to protect by its Request
r the indication of provisional measures and the subject of the proceed-
gs on the merits is lacking ;
 125. Whereas, in particular, it explains that “the measures listed in
bparagraphs (a) and (b) of the Request, if ever adopted, would
quire Russia to take active steps to ensure or to prevent certain results
om happening in the areas concerned” thereby presupposing that Arti-
 s 2 and 5 of CERD contain an obligation to prevent racial discrimi-
 tion ; whereas the Russian Federation argues that, as is apparent from
e wording of Articles 2 and 5 of CERD, nowhere in these provisions
 o States undertake to prevent breaches of the Convention” and that
us there is “no duty to prevent racial discrimination by other actors” ;
hereas, according to the Russian Federation, owing to this fact, a duty
  prevent racial discrimination — or specific, positive measures said to
 w from such duty — cannot form the subject of the proceedings on the
erits ; and whereas, therefore, any related right cannot be protected by
e indication of provisional measures ;

126. Whereas the Court notes that Articles 2 and 5 of CERD are
ended to protect individuals from racial discrimination by obliging

                                                                           42

ates parties to undertake certain measures specified therein ; whereas
e Court considers that it is not appropriate, in the present phase, for it
 pronounce on the issue of whether Articles 2 and 5 of CERD imply a
 ty to prevent racial discrimination by other actors ; whereas States
 rties to CERD have the right to demand compliance by a State party
th specific obligations incumbent upon it under Articles 2 and 5 of the
onvention ; whereas there is a correlation between respect for individual
 hts, the obligations of States parties under CERD and the right of
ates parties to seek compliance therewith ; whereas in the view of the
ourt the rights which Georgia invokes in, and seeks to protect by, its
 quest for the indication of provisional measures have a sufficient con-
ction with the merits of the case it brings for the purposes of the cur-
nt proceedings ; and whereas it is upon the rights thus claimed that the
ourt must focus its attention in its consideration of Georgia’s Request
r the indication of provisional measures ;

 127. Whereas the Court, having established the existence of a basis on
hich its jurisdiction might be founded, ought not to indicate measures
r the protection of any disputed rights other than those which might
 imately form the basis of a judgment in the exercise of that jurisdic-
 n ; whereas accordingly the Court will confine its examination of the
easures requested by Georgia, and of the grounds asserted for the
quest for such measures, to those which appear to fall within the scope
 CERD (cf. Application of the Convention on the Prevention and Pun-
 ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia
 erbia and Montenegro)), Provisional Measures, Order of 8 April 1993,
C.J. Reports 1993, p. 19) ;

                                 * *
128. Whereas the power of the Court to indicate provisional measures
der Article 41 of its Statute “presupposes that irreparable prejudice
all not be caused to rights which are the subject of a dispute in judicial
oceedings” (LaGrand (Germany v. United States of America), Provi-
 nal Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I),
. 14-15, para. 22) ;
129. Whereas the power of the Court to indicate provisional measures
ll be exercised only if there is urgency in the sense that there is a real
k that action prejudicial to the rights of either party might be taken
fore the Court has given its final decision (see, for example, Passage
 ough the Great Belt (Finland v. Denmark), Provisional Measures,
 der of 29 July 1991, I.C.J. Reports 1991, p. 17, para. 23 ; Certain
iminal Proceedings in France (Republic of the Congo v. France), Pro-
ional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 107,
ra. 22 ; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Pro-
ional Measures, Order of 23 January 2007, I.C.J. Reports 2007 (I),

                                                                       43

 11, para. 32) ; and whereas the Court thus has to consider whether in
e current proceedings such urgency exists ;

                                   *
130. Whereas Georgia argues that, in view of the conduct of the Rus-
 n Federation in South Ossetia, Abkhazia, and adjacent regions, pro-
 ional measures are urgently needed because the ethnic Georgians in
ese areas “are at imminent risk of violent expulsion, death or personal
ury, hostage-taking and unlawful detention, and damage to or loss of
eir homes and other property” and “in addition, the prospects for the
 urn of those ethnic Georgians who have already been forced to flee are
pidly deteriorating” ;

 131. Whereas Georgia contends that reports of international and non-
 vernmental organizations and witness statements, which are consistent
th and corroborate these reports, provide evidence of “the ongoing,
despread and systematic abuses of rights of ethnic Georgians under the
onvention” in South Ossetia, Abkhazia and other parts of Georgia
 resently occupied by Russian forces” and allegedly show that ethnic
eorgians who remain in these areas “are at imminent risk of violent
 ack and forced expulsion” ; whereas, according to Georgia, there is
 dence of a “real risk of continued ethnic cleansing by Russian military
rces and separatist militias operating behind Russian lines, especially in
ose areas that still have significant Georgian populations” ; and whereas
eorgia asserts that this evidence also “shows a present failure, and a
 k of continuing failure, on the part of the Russian authorities to ensure
at rights for ethnic Georgians under the Convention are respected”,
 rticularly the rights of Georgians who still live in South Ossetia, Abk-
 zia and other regions of Georgia “presently occupied by Russian
rces”, and the rights of Georgians who wish to return to their homes in
ose regions ;

132. Whereas Georgia claims that “the rights in dispute are threatened
th harm that by its very nature is irreparable” because “no satisfaction,
 award of reparations, could ever compensate for the extreme forms of
ejudice” to those rights in the current proceedings ; whereas it states
at the risk of irreparable prejudice “is not necessarily removed by a sus-
nsion or cessation of the military hostilities that initially provided the
ntext in which the risk was generated” ; and whereas Georgia contends
at “the widespread violations of the rights of ethnic Georgians under
e Convention grew even worse after military engagements ceased, that
ey have continued unabated since then, and that they are continuing
ll” ;

                                                                       44

133. Whereas Georgia claims that “the risk of irreparable prejudice to
e rights at issue in this case is not only imminent, [but] is already hap-
ning”, which is evidenced by the fact that “the ethnic cleansing and
her forms of prohibited discrimination carried out against Georgians in
bkhazia, South Ossetia and other regions occupied by Russian forces
e still occurring, and that they are likely to continue to occur and to
cur” ;

 134. Whereas, for its part, the Russian Federation states that “the cri-
 ia of Article 41 are not met in this case” ; whereas it submits that
Georgia has not established that any rights opposable to Russia under
 ticles 2 and 5 of CERD — however broadly drawn — are exposed to
 rious risk’ of irreparable damage” ;

135. Whereas, with reference to the period characterized by Georgia as
he first and second phases of Russia’s intervention in South Ossetia and
bkhazia”, the Russian Federation draws attention to the documents in
e case file, in particular “statements of Georgian Ministers, decisions
 d international agreements to which Georgia is a party, in which Rus-
 ’s role and the role of the peacekeeping forces are consented to and
cognized as wholly beneficial” ;

136. Whereas, with reference to the events of August 2008, the Rus-
 n Federation argues that “the facts that can be relied on with reason-
 le certitude” go against the existence of a serious risk to the rights
eorgia now claims, for the reasons that, first, armed actions have led to
 eaths of the armed forces of all parties concerned, deaths of civilians of
  ethnicities, and a mass displacement of persons of all ethnicities”, and,
cond, that “the armed actions have now ceased, and civilians of all eth-
cities are returning to some, although not yet all, of the former conflict
nes” ; and whereas, so far as concerns the principle of return, the Rus-
 n Federation refers to the fact that “on 15 August, in discussions with
e United Nations High Commissioner for Refugees, the Russian For-
  n Minister stated his agreement on the principle of the non-discrimi-
 tory nature of the right of return for all civilians forced to flee” ;

137. Whereas the Russian Federation asserts that “the case on urgency
n only be built on the events subsequent to 7 August 2008” in light of
e fact that before this date there was “evidently no urgency of the req-
 ite degree — as Georgia had never even raised complaints of violations
 the CERD with Russia” ; whereas it further argues that any urgency to
  found in the events occurring after 7 August 2008 relates to “the
med actions and their repercussions since that date” ; whereas the Rus-
 n Federation explains that “major developments within the course of
at period . . . tell against the case for urgency” ; whereas it refers to the

                                                                          45

asefire announced by the Russian Federation on 12 August 2008 and to
e six principles for the peaceful settlement of the conflict adopted by
e Presidents of the Russian Federation and France on the same day
 d subsequently signed on 13-16 August 2008 by the President of Geor-
a and leaders of South Ossetia and Abkhazia, “through the intermedi-
y of Russia and in the presence of the OSCE and the European
nion” ; and whereas the Russian Federation claims that since then “the
med actions are at an end and large numbers of IDPs have in fact
 eady returned to Gori and villages nearby” ;
138. Whereas the Russian Federation contends that Georgia’s asser-
 ns that the Russian Federation is continuing to discriminate against
hnic Georgians in Abkhazia, South Ossetia and neighbouring areas by
reatening the rights of ethnic Georgians to security and the right of
 urn, and that Russia is actively supporting groups or individuals that
ntinue to perpetrate acts of violence against ethnic Georgians, are not
pported by the documents submitted by Georgia itself ;

139. Whereas the Russian Federation argues that “the case on urgency
relation to Abkhazia is built almost exclusively on inference, and that
is] is not a sound basis for a provisional measures award” ;

 140. Whereas the Russian Federation claims that its “positive
marches before the OSCE . . . with the European Union and President
 rkozy, are addressing precisely the problem that is being put before
 e Court] as the basis for urgent provisional measures” ; whereas the
ussian Federation notes that, in accordance with the further principles
 nounced on 8 September 2008, 200 European Union monitors will be
ployed “into the South Ossetian and Abkhaz buffer zones, and Rus-
 n peacekeeping troops [will] make a full withdrawal ten days later” ;
hereas the Russian Federation asserts that “the plan provides that the
nited Nations and OSCE observers will also continue to carry out their
andates” ; whereas the Russian Federation states that further security
 d stability issues and the question of the return of refugees are to be
 dressed in international talks, “which are imminent and are obviously
 be at a very high level” ; whereas the Russian Federation contends that
e facts “contradict Georgia’s assertion of an ongoing worsening crisis” ;
 d whereas it points out that, while “there has been a humanitarian cri-
  to be sure . . . it is part of the recent armed conflict and is being
 dressed in that context at the highest levels” ;

                                   *
141. Whereas the Court is not called upon, for the purpose of its deci-
 n on the Request for the indication of provisional measures, to estab-
h the existence of breaches of CERD, but to determine whether the

                                                                      46

 cumstances require the indication of provisional measures for the pro-
 tion of rights under CERD ; whereas it cannot at this stage make
finitive findings of fact, nor finding of attribution ; and whereas the
 ht of each Party to submit arguments in respect of the merits remains
 affected by the Court’s decision on the Request for the indication of
ovisional measures ;
 142. Whereas, nevertheless, the rights in question in these proceedings,
 particular those stipulated in Article 5, paragraphs (b) and (d) (i) of
ERD, are of such a nature that prejudice to them could be irreparable ;
hereas the Court considers that violations of the right to security of per-
ns and of the right to protection by the State against violence or bodily
 rm (Article 5, paragraph (b)) could involve potential loss of life or
 dily injury and could therefore cause irreparable prejudice ; whereas
e Court further considers that violations of the right to freedom of
ovement and residence within a State’s borders (ibid., paragraph (d) (i))
uld also cause irreparable prejudice in situations where the persons
ncerned are exposed to privation, hardship, anguish and even danger
 life and health ; and whereas the Court finds that individuals forced to
 ve their own place of residence and deprived of their right of return
uld, depending on the circumstances, be subject to a serious risk of
 eparable prejudice ;

143. Whereas the Court is aware of the exceptional and complex situa-
 n on the ground in South Ossetia, Abkhazia and adjacent areas and
kes note of the continuing uncertainties as to where lines of authority
; whereas, based on the information before it in the case file, the Court
of the opinion that the ethnic Georgian population in the areas affected
 the recent conflict remains vulnerable ;

 Whereas the situation in South Ossetia, Abkhazia and adjacent areas
  Georgia is unstable and could rapidly change ; whereas, given the
 going tension and the absence of an overall settlement to the conflict in
 s region, the Court considers that the ethnic Ossetian and Abkhazian
 pulations also remain vulnerable ;
 Whereas, while the problems of refugees and internally displaced per-
ns in this region are currently being addressed, they have not yet been
 olved in their entirety ;
 Whereas, in light of the foregoing, with regard to these above-men-
 ned ethnic groups of the population, there exists an imminent risk that
e rights at issue in this case mentioned in the previous paragraph may
ffer irreparable prejudice ;
 144. Whereas States parties to CERD “condemn racial discrimination
 d undertake to pursue by all appropriate means and without delay a
 licy of eliminating racial discrimination in all its forms” ; whereas in
e view of the Court, in the circumstances brought to its attention in
hich there is a serious risk of acts of racial discrimination being com-
 tted, Georgia and the Russian Federation, whether or not any such

                                                                        47

ts in the past may be legally attributable to them, are under a clear
ligation to do all in their power to ensure that any such acts are not
mmitted in the future ;

 145. Whereas the Court is satisfied that the indication of measures is
quired for the protection of rights under CERD which form the sub-
 t-matter of the dispute ; and whereas the Court has the power, under
  Statute, when a request for provisional measures has been made, to
dicate measures that are in whole or in part other than those requested,
  measures that are addressed to the party which has itself made the
quest ; whereas Article 75, paragraph 2, of the Rules of Court specifi-
 ly refers to this power of the Court ; and whereas the Court has
 eady exercised this power on several occasions in the past (Armed
 tivities on the Territory of the Congo (Democratic Republic of the
 ngo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J.
 ports 2000, p. 128, para. 43 ; Land and Maritime Boundary between
 meroon and Nigeria (Cameroon v. Nigeria), Provisional Measures,
 der of 15 March 1996, I.C.J. Reports 1996 (I), p. 24, para. 48 ; Appli-
tion of the Convention on the Prevention and Punishment of the Crime
  Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Mon-
negro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports
 93, p. 22, para. 46) ;
 146. Whereas the Court, having found that the indication of provi-
 nal measures is required in the current proceedings, has considered the
 ms of the provisional measures requested by Georgia ; whereas the
ourt does not find that, in the circumstances of the case, the measures
 be indicated are to be identical to those requested by Georgia ; whereas
e Court, having considered the material before it, considers it appro-
 ate to indicate measures addressed to both Parties ;

                                   *

 147. Whereas the Court’s “orders on provisional measures under Arti-
  41 [of the Statute] have binding effect” (LaGrand (Germany v. United
 ates of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109)
 d thus create international legal obligations which both Parties are
quired to comply with (Armed Activities on the Territory of the Congo
Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports
 05, p. 258, para. 263) ;

                                 * *

148. Whereas the decision given in the present proceedings in no way
ejudges the question of the jurisdiction of the Court to deal with the
erits of the case or any questions relating to the admissibility of the
pplication, or relating to the merits themselves ; and whereas it leaves

                                                                      48

affected the right of the Governments of Georgia and the Russian
deration to submit arguments in respect of those questions ;

                               * * *
149. For these reasons,
THE COURT, reminding the Parties of their duty to comply with their
ligations under the International Convention on the Elimination of All
rms of Racial Discrimination,
Indicates the following provisional measures :
A. By eight votes to seven,
Both Parties, within South Ossetia and Abkhazia and adjacent areas in
eorgia, shall
  refrain from any act of racial discrimination against persons, groups
  of persons or institutions ;
  abstain from sponsoring, defending or supporting racial discrimina-
  tion by any persons or organizations ;

  do all in their power, whenever and wherever possible, to ensure,
  without distinction as to national or ethnic origin,

    (i) security of persons ;
   (ii) the right of persons to freedom of movement and residence
        within the border of the State ;
  (iii) the protection of the property of displaced persons and of refu-
        gees ;
  do all in their power to ensure that public authorities and public
  institutions under their control or influence do not engage in acts of
  racial discrimination against persons, groups of persons or institu-
  tions ;
N FAVOUR : President Higgins ; Judges Buergenthal, Owada, Simma, Abra-
  ham, Keith, Sepúlveda-Amor, Judge ad hoc Gaja ;
AGAINST :
        Vice-President Al-Khasawneh ; Judges Ranjeva, Shi, Koroma,
  Tomka, Bennouna, Skotnikov ;
B. By eight votes to seven,
Both Parties shall facilitate, and refrain from placing any impediment
  humanitarian assistance in support of the rights to which the local
pulation are entitled under the International Convention on the Elimi-
tion of All Forms of Racial Discrimination ;
N FAVOUR : President Higgins ; Judges Buergenthal, Owada, Simma, Abra-
  ham, Keith, Sepúlveda-Amor ; Judge ad hoc Gaja ;
AGAINST :
        Vice-President Al-Khasawneh ; Judges Ranjeva, Shi, Koroma,
  Tomka, Bennouna, Skotnikov ;

                                                                     49

C. By eight votes to seven,
Each Party shall refrain from any action which might prejudice the
 hts of the other Party in respect of whatever judgment the Court may
nder in the case, or which might aggravate or extend the dispute before
e Court or make it more difficult to resolve ;
N FAVOUR : President Higgins ; Judges Buergenthal, Owada, Simma, Abra-
  ham, Keith, Sepúlveda-Amor ; Judge ad hoc Gaja ;
AGAINST :
        Vice-President Al-Khasawneh ; Judges Ranjeva, Shi, Koroma,
  Tomka, Bennouna, Skotnikov ;
D. By eight votes to seven,
Each Party shall inform the Court as to its compliance with the above
ovisional measures ;
N FAVOUR : President Higgins ; Judges Buergenthal, Owada, Simma, Abra-
  ham, Keith, Sepúlveda-Amor ; Judge ad hoc Gaja ;
AGAINST :
        Vice-President Al-Khasawneh ; Judges Ranjeva, Shi, Koroma,
  Tomka, Bennouna, Skotnikov.

Done in French and in English, the French text being authoritative, at
e Peace Palace, The Hague, this fifteenth day of October, two thousand
d eight, in three copies, one of which will be placed in the archives of
e Court and the others transmitted to the Government of Georgia and
e Government of the Russian Federation, respectively.

                                       (Signed) Rosalyn HIGGINS,
                                                   President.
                                      (Signed) Philippe COUVREUR,
                                                    Registrar.

Vice-President AL-KHASAWNEH and Judges RANJEVA, SHI, KOROMA,
 MKA, BENNOUNA and SKOTNIKOV append a joint dissenting opinion to
e Order of the Court ; Judge ad hoc GAJA appends a declaration to the
 der of the Court.

                                                   (Initialled) R.H.
                                                   (Initialled) Ph.C.

                                                                     50