          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)

           PRELIMINARY OBJECTIONS

           JUDGMENT OF 1 APRIL 2011

                 2011
          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRÊTS,
      AVIS CONSULTATIFS ET ORDONNANCES

   AFFAIRE RELATIVE À L’APPLICATION
  DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
       (GÉORGIE c. FÉDÉRATION DE RUSSIE)

          Exceptions préliminaires

             ARRÊT DU 1er AVRIL 2011

                                Official citation:
        Application of the International Convention on the Elimination
    of All Forms of Racial Discrimination (Georgia v. Russian Federation),
         Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70

                           Mode officiel de citation:
           Application de la convention internationale sur l’élimination
de toutes les formes de discrimination raciale (Géorgie c. Fédération de Russie),
            exceptions préliminaires, arrêt, C.I.J. Recueil 2011, p. 70

                                                                1014
                                                 Sales number
ISSN 0074-4441                                   No de vente:
ISBN 978-92-1-071125-8

                                     1 APRIL 2011

                                     JUDGMENT

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

APPLICATION DE LA CONVENTION INTERNATIONALE
   SUR L’ÉLIMINATION DE TOUTES LES FORMES
          DE DISCRIMINATION RACIALE
      (GÉORGIE c. FÉDÉRATION DE RUSSIE)
         EXCEPTIONS PRÉLIMINAIRES

                                    1er AVRIL 2011

                                          ARRÊT

70

                           Table of Contents

                                                                           Paragraphs

Chronology of the Procedure                                                    1-19
    I. Introduction                                                           20-22
    II. First Preliminary Objection — Existence of a Dispute                 23-114
       1. The meaning of “dispute”                                            26-30
       2. The evidence about the existence of a dispute                       31-39
       3. Relevant agreements and Security Council resolutions                40-49

       4. Documents and statements from the period before CERD
          entered into force between the Parties on 2 July 1999               50-64

       5.	Documents and statements from the period after CERD
          entered into force between the Parties and before August 2008      65-105

       6. August 2008                                                       106-113
       7. Conclusion                                                            114
III. Second Preliminary Objection — Procedural Conditions
     in Article 22 of CERD                                                  115-184
       1. Introduction                                                      115-121
       2. Whether Article 22 of CERD establishes procedural condi-
          tions for the seisin of the Court                                 122-147
         (a) Ordinary meaning of Article 22 of CERD 123-141
         (b) Travaux préparatoires142-147
       3. Whether the conditions for the seisin of the Court under
          Article 22 of CERD have been fulfilled                            148-184
         (a) The concept of negotiations                                    150-162
         (b) Whether the Parties have held negotiations on matters
             concerning the interpretation or application of CERD           163-184

IV. Third and Fourth Preliminary Objections                                     185
Lapse of the Court’s Order of 15 October 2008                                   186
Operative Clause                                                                187

4

               71

                               INTERNATIONAL COURT OF JUSTICE

   2011                                          YEAR 2011
  1 April
General List
 No. 140                                         1 April 2011

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

                                     PRELIMINARY OBJECTIONS

                 Article 22 of CERD invoked by Georgia as a basis for the jurisdiction of the
               Court — Four preliminary objections to the jurisdiction of the Court raised by the
               Russian Federation.

                                                        *
                  First preliminary objection – Existence of a dispute.
                  Contention by the Russian Federation that there is no dispute between the Par-
               ties with respect to the interpretation or application of CERD — Meaning of the
               word “dispute” in Article 22 of CERD — Evidence as to the existence of a “dispute”
               — The Court limits itself to official documents and statements — Distinction
               between documents and statements issued before and after CERD entered into
               force between the Parties — Primary attention given by the Court to statements
               made or endorsed by the Executives — Agreements and the Security Council reso-
               lutions relating to the situation in Abkhazia and South Ossetia.

                  Documents and statements from the period before CERD entered into force
               between the Parties — No legal significance given by the Court to these documents
               and statements for the purposes of the case — No basis for a finding that there was
               a dispute between the Parties about racial discrimination by July 1999 — Even if
               there had been such a dispute prior to 2 July 1999, it could not have been a dispute
               with respect to the interpretation or application of CERD.

               5

72 	        convention on racial discrimination (judgment)

   Documents and statements from the period after CERD entered into force
between the Parties and before August 2008 — Reports made after 1999 to human
rights treaty monitoring committees — No allegations of non-compliance by the
Russian Federation with its obligations under CERD — Reports to the committees
not significant in determining the existence of a dispute — Documents and state-
ments issued by the Parties during this period — No legal significance for the
purposes of the case — No legal dispute between Georgia and the Russian Federa-
tion during that period with respect to the interpretation or application of CERD.

  Events in August 2008 — Documents and statements issued in the period
between the beginning of armed hostilities and the filing of the Application —
Georgia’s claims expressly referred to alleged ethnic cleansing by Russian forces —
Claims made against the Russian Federation directly and rejected by the latter —
Existence of a dispute between the Parties about the Russian Federation’s
compliance with its obligations under CERD.

    First preliminary objection dismissed.

                                             *
    Second preliminary objection — Procedural conditions in Article 22 of CERD.

   Contention by the Russian Federation that two procedural preconditions in Arti-
cle 22 of CERD were not met — Question of whether Article 22 establishes pre-
conditions for the seisin of the Court — Ordinary meaning of Article 22 of
CERD — The Court’s Order on Provisional Measures without prejudice to the
definitive decision as to its jurisdiction to deal with the merits — Functions of the
requirement for prior resort to negotiations — Reference in Article 22 of CERD to
“negotiation or [to] the procedures expressly provided for” in CERD — Words
“dispute . . . which is not settled” by the means of peaceful resolution specified in
Article 22 must be given effect — Express choice of two modes of dispute settle-
ment, namely negotiations or resort to special procedures under CERD, suggests
an affirmative duty to resort to them prior to the seisin of the Court — Use of
future perfect tense in the French version of the expression “which is not settled”
reinforces the idea that an attempt to settle the dispute must have taken place
before referral to the Court can be pursued — Other three authentic texts of
CERD do not contradict this interpretation — Jurisprudence of the Court con-
cerning compromissory clauses comparable to Article 22 of CERD — Reference
to negotiations is interpreted as constituting a precondition to seisin — In their
ordinary meaning, the terms of Article 22 of CERD establish preconditions to the
seisin of the Court — No need to resort to supplementary means of interpreta-
tion — Extensive arguments made by the Parties relating to the travaux prépara-
toires of Article 22 — Resort by the Court to the travaux préparatoires in other
cases in order to confirm its interpretation of the relevant texts — Travaux
préparatoires do not suggest a different conclusion from that at which the Court
has already arrived through the main method of ordinary meaning interpretation.

    Question of whether the conditions for the seisin of the Court under Article 22

6

73 	          convention on racial discrimination (judgment)

of CERD have been fulfilled — No claim from Georgia that, prior to seising the
Court, it used or attempted to use the procedures expressly provided for in
CERD — Examination limited to the question of whether the precondition of
negotiations was fulfilled — Concept of negotiations — Nature of the precondition
of negotiations — Distinction between negotiations and protests or disputations —
No need to reach an actual agreement between the Parties — In the absence of
evidence of a genuine attempt to negotiate, the precondition of negotiation is not
met — Where negotiations are attempted the precondition of negotiation is met
only when there has been a failure of negotiations or when negotiations have
become futile or deadlocked — General criteria provided by the jurisprudence of
the Court to ascertain whether negotiations have taken place — Negotiations must
relate to the subject-matter of the treaty containing the compromissory clause.

   Question of whether the Parties have held negotiations on matters concerning
the interpretation or application of CERD — Only possible for the Parties to
negotiate in the period during which a dispute capable of falling under CERD has
arisen between the Parties — Negotiations prior to this period are of no rele-
vance — Documents and statements submitted by Georgia as evidence of negotia-
tions — Facts in the record show that Georgia did not attempt to negotiate
CERD‑related matters with the Russian Federation — Parties did not engage in
negotiations with respect to the Russian Federation’s compliance with its substan-
tive obligations under CERD — As neither of the two modes of dispute settlement
constituting preconditions to the seisin of the Court was attempted by Georgia, the
Court does not need to examine whether these two preconditions are cumulative or
alternative.

   Second preliminary objection of the Russian Federation upheld — Court not
required to consider other preliminary objections raised by the Russian Federa-
tion — Case cannot proceed to the merits phase.

                                        *
  Lapse of the Order of the Court of 15 October 2008 — Parties under a duty to
comply with their obligations under CERD.

                                   JUDGMENT

          President Owada ; Vice‑President Tomka ; Judges Koroma, Al‑
Present :
          Khasawneh, Simma, Abraham, Keith, Sepúlveda‑Amor, Bennouna,
          Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue,
          Donoghue ; Judge ad hoc Gaja ; Registrar Couvreur.

   In the case concerning application of the International Convention on the
Elimination of All Forms of Racial Discrimination,
    between
Georgia,

7

74 	       convention on racial discrimination (judgment)

represented by
  Ms Tina Burjaliani, First Deputy‑Minister of Justice,
  H.E. Mr. Shota Gvineria, Ambassador of Georgia to the Kingdom of the
     Netherlands,
  as Agents ;
  Mr. Payam Akhavan, LL.M., S.J.D. (Harvard), Professor of International
     Law, McGill University, member of the Bar of New York,
  as Co‑Agent and Advocate ;
  Mr. James R. Crawford, S.C., LL.D., F.B.A., Whewell Professor of Interna-
     tional Law, University of Cambridge, member of the Institut de droit inter-
     national, Barrister, Matrix Chambers,
  Mr. Philippe Sands, Q.C., Professor of Law, University College London,
     Barrister, Matrix Chambers,
  Mr. Paul S. Reichler, Foley Hoag LLP, Washington D.C., member of the
     Bars of the United States Supreme Court and the District of Columbia,

    as Advocates ;
    Ms Nino Kalandadze, Deputy‑Minister for Foreign Affairs,
    Mr. Giorgi Mikeladze, Consul, Embassy of Georgia in the Kingdom of the
       Netherlands,
    Ms Khatuna Salukvadze, Head of the Political Department, Ministry of
       Foreign Affairs,
    Ms Nino Tsereteli, Deputy Head of the Department of State Representation
        to International Human Rights Courts, Ministry of Justice,

    Mr. Zachary Douglas, Barrister, Matrix Chambers, Lecturer, Faculty of
       Law, University of Cambridge,
    Mr. Andrew B. Loewenstein, Foley Hoag LLP, member of the Bar of the
       Commonwealth of Massachusetts,
    Ms Clara E. Brillembourg, Foley Hoag LLP, member of the Bars of the Dis-
       trict of Columbia and New York,
    Ms Amy Senier, Foley Hoag LLP, member of the Bars of the Commonwealth
       of Massachusetts and New York,
    as Advisers,
    and
the Russian Federation,
represented by
  H.E. Mr. Kirill Gevorgian, Director, Legal Department, Ministry of Foreign
     Affairs of the Russian Federation,
  H.E. Mr. Roman Kolodkin, Ambassador of the Russian Federation to the
     Kingdom of the Netherlands,
  as Agents ;
  Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre‑
     La Défense, Member and former Chairman of the International Law
     Commission, associate member of the Institut de droit international,
  Mr. Andreas Zimmermann, Dr. jur. (Heidelberg University), LL.M. (Har-
      vard), Professor of International Law at the University of Potsdam, Direc-

8

75 	        convention on racial discrimination (judgment)

       tor of the Potsdam Center of Human Rights, Member of the Permanent
       Court of Arbitration,
    Mr. Samuel Wordsworth, member of the English Bar, member of the Paris
       Bar, Essex Court Chambers,
    as Counsel and Advocates ;
    Mr. Evgeny Raschevsky, Egorov Puginsky Afanasiev & Partners,
    Mr. M. Kulakhmetov, Adviser to the Minister for Foreign Affairs of the Rus-
       sian Federation,
    Mr. V. Korchmar, Principal Counsellor, Fourth CIS Department, Ministry
       of Foreign Affairs of the Russian Federation,

    Mr. Grigory Lukyantsev, Senior Counsellor, Permanent Mission of the Rus-
     sian Federation to the United Nations, New York,

    Mr. Ivan Volodin, Acting Head of Section, Legal Department, Ministry of
     Foreign Affairs of the Russian Federation,
    Mr. Maxim Musikhin, Counsellor, Embassy of the Russian Federation in the
     Kingdom of the Netherlands,
    Ms Diana Taratukhina, Third Secretary, Permanent Mission of the Russian
     Federation to the United Nations, New York,

    Mr. Arsen Daduani, Third Secretary, Embassy of the Russian Federation in
       the Kingdom of the Netherlands,
    Mr. Sergey Leonidchenko, Attaché, Legal Department, Ministry of Foreign
       Affairs of the Russian Federation,
    Ms Svetlana Shatalova, Third Secretary, Embassy of the Russian Federation
       in the United States of America,
    Ms Daria Golubkova, expert, Ministry of Foreign Affairs of the Russian
       Federation,
    Mr. M. Tkhostov, Deputy Chief of Administration, Government of North
       Ossetia‑Alania,
    Ms Amy Sander, member of the English Bar, Essex Court Chambers,
    Mr. Christian Tams, LL.M., Ph.D. (Cambridge), Professor of International
       Law, University of Glasgow,
    Ms Alina Miron, Researcher, Centre for International Law (CEDIN), Uni-
       versity Paris Ouest, Nanterre‑La Défense,
    Ms Elena Krotova, Egorov Puginsky Afanasiev & Partners,
    Ms Anna Shumilova, Egorov Puginsky Afanasiev & Partners,
    Mr. Sergey Usoskin, Egorov Puginsky Afanasiev & Partners,
    as Advisers,

    The Court,
    composed as above,
    after deliberation,
    delivers the following Judgment :
   1. On 12 August 2008, the Government of Georgia filed in the Registry of the
Court an Application instituting proceedings against the Russian Federation in
respect of a dispute concerning “actions on and around the territory of Georgia”

9

76 	       convention on racial discrimination (judgment)

in breach of the International Convention on the Elimination of All Forms of
Racial Discrimination (hereinafter “CERD”) of 21 December 1965.

    In its Application, Georgia, referring to Article 36, paragraph 1, of the Stat-
ute, relied on Article 22 of CERD to found the jurisdiction of the Court and
also reserved the right to invoke Article IX of the Convention on the Prevention
and Punishment of the Crime of Genocide of 9 December 1948 as an additional
basis for jurisdiction.
    2. In accordance with Article 40, paragraph 2, of the Statute, the Application
was communicated forthwith to the Government of the Russian Federation by
the Registrar ; and, in accordance with paragraph 3 of that Article, all States
entitled to appear before the Court were notified of the Application.
    3. On 14 August 2008, Georgia, referring to Article 41 of the Statute and to
Articles 73, 74 and 75 of the Rules of Court, filed in the Registry of the Court a
Request for the indication of provisional measures in order “to preserve [its]
rights under CERD to protect its citizens against violent discriminatory acts by
Russian armed forces, acting in concert with separatist militia and foreign mer-
cenaries”. In accordance with Article 73, paragraph 2, of the Rules of Court, the
Registry transmitted a certified copy of this Request forthwith to the Russian
Government.
    4. On 15 August 2008, the President, referring to Article 74, paragraph 4, of
the Rules of Court, addressed a communication to the two Parties, urgently call-
ing upon them “to act in such a way as will enable any order the Court may take
on the request for provisional measures to have its appropriate effects”.
    5. On 25 August 2008, Georgia, referring to “the rapidly changing circum-
stances in Abkhazia and South Ossetia”, filed in the Registry an “Amended
Request for the Indication of Provisional Measures of Protection” ; the Registry
immediately transmitted a certified copy of this Request to the Russian Govern-
ment.
    6. Since the Court included upon the Bench no judge of Georgian national-
ity, Georgia availed itself of its right under Article 31, paragraph 2, of the Stat-
ute and chose Mr. Giorgio Gaja to sit as judge ad hoc in the case.
    7. By an Order of 15 October 2008, the Court, after hearing the Parties, indi-
cated certain provisional measures to both Parties. The Court also directed each
Party to inform it about compliance with the provisional measures.
    8. By an Order of 2 December 2008, the President of the Court, taking
account of the agreement of the Parties, fixed 2 September 2009 as the time‑limit
for the filing of a Memorial by Georgia and 2 July 2010 as the time‑limit for the
filing of a Counter‑Memorial by the Russian Federation. Georgia’s Memorial
was filed within the time‑limit thus prescribed.
    9. On 26 January 2009, the Agent of Georgia submitted a “Report of Geor-
gia to the Court in Compliance with Paragraph 149 (D) of the Order of 15 Octo-
ber 2008”. On 8 July 2009, the Agent of the Russian Federation submitted to
the Court a “Report of the Russian Federation on Compliance with the Provi-
sional Measures indicated by the Order of the Court of 15 October 2008”.

   10. On 31 July 2009, in accordance with Article 43 of the Rules of Court, the
Registrar addressed the notification provided for in Article 63, paragraph 1, of
the Statute to all States parties to CERD ; on the same day, the Registrar also
sent to the Secretary‑General of the United Nations the notification provided
for in Article 34, paragraph 3, of the Statute.

10

77 	       convention on racial discrimination (judgment)

   11. On 1 December 2009, within the time‑limit set by Article 79, paragraph 1,
of the Rules of Court, as amended on 5 December 2000, the Russian Federation
raised preliminary objections to the jurisdiction of the Court. Consequently, by
an Order of 11 December 2009, the Court, noting that by virtue of Article 79,
paragraph 5, of the Rules of Court, the proceedings on the merits were sus-
pended, fixed 1 April 2010 as the time‑limit for the presentation by Georgia of a
written statement of its observations and submissions on the preliminary objec-
tions made by the Russian Federation. Georgia filed such a statement within the
time‑limit so prescribed, and the case thus became ready for hearing in respect
of the preliminary objections.
   12. By a letter dated 1 April 2010, the Registrar, in accordance with Arti-
cle 69, paragraph 3, of the Rules of Court, transmitted to the United Nations
copies of the written pleadings filed in the case and asked the Secretary‑General
of the United Nations to inform him whether or not the Organization intended
to present observations in writing within the meaning of the said provision. The
Registrar further stated that, in view of the fact that the current phase of the
proceedings related to the question of jurisdiction, any written observations
should be limited to that question. In a letter dated 30 July 2010, the Senior
Legal Officer in charge of the Office of the Legal Counsel indicated that the
United Nations did not intend to submit any such observations.
   13. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court,
after ascertaining the views of the Parties, decided that copies of the pleadings
and documents annexed would be made accessible to the public on the opening
of the oral proceedings.
   14. Public hearings on the preliminary objections raised by the Russian Fed-
eration were held from Monday 13 September to Friday 17 September 2010, at
which the Court heard the oral arguments and replies of :
For the Russian Federation : H.E. Mr. Kirill Gevorgian,
                              H.E. Mr. Roman Kolodkin,
                              Mr. Samuel Wordsworth,
                              Mr. Alain Pellet,
                              Mr. Andreas Zimmermann.
For Georgia :	Ms Tina Burjaliani,
	Mr. Paul S. Reichler,
	Mr. James R. Crawford,
	Mr. Payam Akhavan,
	Mr. Philippe Sands.
   15. At the hearings, Members of the Court put questions to the Parties, to
which replies were given in writing, within the time‑limit fixed by the President
in accordance with Article 61, paragraph 4, of the Rules of Court. In accor-
dance with Article 72 of the Rules of Court, each of the Parties submitted com-
ments on the written replies provided by the other.

                                        *
  16. In the Application, the following requests were made by Georgia :
        “The Republic of Georgia, on it own behalf and as parens patriae for its
     citizens, respectfully requests the Court to adjudge and declare that the
     Russian Federation, through its State organs, State agents, and other p
                                                                            ersons

11

78 	       convention on racial discrimination (judgment)

     and entities exercising governmental authority, and through the South Osse-
     tian and Abkhaz separatist forces and other agents acting on the instruc-
     tions of or under the direction and control of the Russian Federation, has
     violated its obligations under CERD by :
     (a) engaging in acts and practices of ‘racial discrimination against persons,
         groups of persons or institutions’ and failing ‘to ensure that all public
         authorities and public institutions, national and local, shall act in con-
         formity 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 discrimina-
         tion’ contrary to Article 2 (l) (d) of CERD ;

     (d) failing to condemn ‘racial segregation’ and failing to ‘eradicate all prac-
         tices of this nature’ in South Ossetia and Abkhazia, contrary to Arti-
         cle 3 of CERD ;
     (e) failing to ‘condemn all propaganda and all organizations . . . which
         attempt to justify or promote racial hatred and discrimination in any
         form’ and failing ‘to adopt immediate and positive measures designed
         to eradicate all incitement to, or acts of, such discrimination’, contrary
         to Article 4 of CERD ;
     (f) undermining the enjoyment of the enumerated fundamental human
         rights in Article 5 by the ethnic Georgian, Greek and Jewish popula-
         tions 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.

        The Republic of Georgia, on it own behalf and as parens patriae for its
     citizens, respectfully requests the Court to order the Russian Federation to
     take all steps necessary to comply with its obligations under CERD, includ-
     ing :
     (a) immediately ceasing all military activities on the territory of the Repub-
         lic of Georgia, including South Ossetia and Abkhazia, and immediate
         withdrawing of all Russian military personnel from the same ;
     (b) taking all necessary and appropriate measures to ensure the prompt
         and effective return of IDPs to South Ossetia and Abkhazia in condi-
         tions of safety and security ;
     (c) refraining from the unlawful appropriation of homes and property
         belonging to IDPs ;
     (d) taking all necessary measures to ensure that the remaining ethnic Geor-
         gian populations of South Ossetia and the Gali District are not subject
         to discriminatory treatment including but not limited to protecting
         them against pressures to assume Russian citizenship, and respect for
         their right to receive education in their mother tongue ;

     (e) paying full compensation for its role in supporting and failing to bring
         to an end the consequences of the ethnic cleansing that occurred in the

12

79 	       convention on racial discrimination (judgment)

         1991‑1994 conflicts, and its subsequent refusal to allow the return of
         IDPs ;
     (f) not to recognize in any manner whatsoever the de facto South Ossetian
         and Abkhaz separatist authorities and the fait accompli created by
         ethnic cleansing ;
     (g) not to take any measures that would discriminate against persons,
          whether legal or natural, having Georgian nationality or ethnicity
          within its jurisdiction or control ;
     (h) allow Georgia to fulfil its obligations under CERD by withdrawing its
          forces from South Ossetia and Abkhazia and allowing Georgia to
          restore its authority and jurisdiction over those regions ; and
     (i) to pay full compensation to Georgia for all injuries resulting from its
          internationally wrongful acts.”
  17. In the written proceedings on the merits, the following submissions were
presented on behalf of the Government of Georgia in its Memorial :
        “On the basis of the evidence and legal argument presented in this Memo-
     rial, Georgia requests the Court to adjudge and declare :
     1.   that the Russian Federation, through its State organs, State agents and
          other persons and entities exercising governmental authority, and
          through the de facto governmental authorities in South Ossetia and
          Abkhazia and militias operating in those areas, is responsible for vio-
          lations of Articles 2 (1) (a), 2 (1) (b), 2 (1) (d), 3 and 5 of the 1965
          Convention by the following actions : (i) the ethnic cleansing of Geor-
          gians in South Ossetia ; (ii) the frustration of the right of return of
          Georgians to their homes in South Ossetia and Abkhazia ; and (iii) the
          destruction of Georgian culture and identity in South Ossetia and Abk-
          hazia ;
     2.   that the Russian Federation is responsible for the violation of the
          Court’s Order on Provisional Measures of 15 October 2008 by the fol-
          lowing actions : (i) acts of discrimination, including by violence, against
          Georgians in South Ossetia and Abkhazia ; (ii) the frustration of the
          right of return of Georgians to their homes in South Ossetia and Abk-
          hazia ; (iii) the destruction of Georgian culture and identity in South
          Ossetia and Abkhazia ; and (iv) the obstruction of access to humanitar-
          ian assistance ;
     3.   that the Russian Federation is under an obligation to cease all actions
          in contravention of its obligations under Articles 2 (1) (a), 2 (1) (b),
          2 (1) (d), 3 and 5 of the 1965 Convention and the Court’s Order on
          Provisional Measures, including all acts of discrimination as well as all
          support, defence, sponsorship of, or efforts to consolidate, such dis-
          crimination, and to provide appropriate assurances and guarantees that
          it will refrain from all such acts in the future ;

     4.    that the Russian Federation is under an obligation to re‑establish
           the situation that existed before its violations of Articles 2 (1) (a),
           2 (1) (b), 2 (1) (d), 3 and 5 of the 1965 Convention, in particular
          by taking prompt and effective measures to secure the return of the
          internally displaced Georgians to their homes in South Ossetia and
           Abkhazia ;

13

80 	         convention on racial discrimination (judgment)

     5.    that the Russian Federation is under an obligation to compensate for
           the damage caused by its violations of Articles 2 (1) (a), 2 (1) (b),
           2 (1) (d), 3 and 5 of the 1965 Convention and of the Court’s Order on
           Provisional Measures with such compensation to be quantified in a
           separate phase of these proceedings.”

  18. In the preliminary objections, the following submissions were presented
on behalf of the Government of the Russian Federation :
       “For the reasons advanced above, the Russian Federation requests the
     Court to adjudge and declare that it lacks jurisdiction over the claims
     brought against the Russian Federation by Georgia, referred to it by the
     Application of Georgia of 12 August 2008.”
  In the written statement of its observations and submissions on the prelimi-
nary objections, the following submissions were presented on behalf of the Gov-
ernment of Georgia :
          “For these reasons Georgia respectfully requests the Court :
     1.    to dismiss the preliminary objections presented by the Russian Federa-
           tion ;
     2.    to hold that it has jurisdiction to hear the claims presented by Georgia,
           and that these claims are admissible.”
  19. At the oral proceedings on the preliminary objections, the following sub-
missions were presented by the Parties :
On behalf of the Government of the Russian Federation,
at the hearing of 15 September 2010 :
         “The Russian Federation requests the Court to adjudge and declare that
     it lacks jurisdiction over the claims brought against the Russian Federation
     by Georgia, referred to it by the Application of Georgia of 12 August 2008.”
On behalf of the Government of Georgia,
at the hearing of 17 September 2010 :
          “Georgia respectfully requests the Court :
     1.    to dismiss the preliminary objections presented by the Russian Feder-
           ation ;
     2.    to hold that the Court has jurisdiction to hear the claims presented by
           Georgia and that these claims are admissible.”

                                           *
                                       *       *

                                 I. Introduction

  20. It is recalled that in its Application, Georgia relied on Article 22 of
CERD to found the jurisdiction of the Court (see paragraph 1 above).
Article 22 of CERD reads as follows :

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       “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.”

   CERD entered into force between the Parties on 2 July 1999.
   21. It is further recalled that in its Application, Georgia also reserved the
right to invoke Article IX of the Convention on the Prevention and Punish-
ment of the Crime of Genocide of 9 December 1948 as an additional basis
for jurisdiction (see paragraph 1 above). Georgia did not however subse-
quently invoke this Convention as a basis for the Court’s jurisdiction.
   22. The Russian Federation has raised four preliminary objections to
the Court’s jurisdiction under Article 22 of CERD. According to the first
preliminary objection put forward by the Russian Federation, there was
no dispute between the Parties regarding the interpretation or application
of CERD at the date Georgia filed its Application. In its second prelimi-
nary objection, the Russian Federation argues that the procedural
requirements of Article 22 of CERD for recourse to the Court have not
been fulfilled. The Russian Federation contends in its third objection that
the alleged wrongful conduct took place outside its territory and there-
fore the Court lacks jurisdiction ratione loci to entertain the case. During
the oral proceedings, the Russian Federation stated that this objection
did not possess an exclusively preliminary character. Finally, according to
the Russian Federation’s fourth objection, any jurisdiction the Court
might have is limited ratione temporis to the events which occurred after
the entry into force of CERD as between the Parties, that is, 2 July 1999.

       II. First Preliminary Objection — Existence of a Dispute

   23. The Russian Federation’s first preliminary objection is that “there
was no dispute between Georgia and Russia with respect to the interpre-
tation or application of CERD concerning the situation in and around
Abkhazia and South Ossetia prior to 12 August 2008, i.e., the date Geor-
gia submitted its application”. In brief, it presented two arguments in
support of that objection. First, if there was any dispute involving any
allegations of racial discrimination committed in the territory of Abkha-
zia and South Ossetia, the parties to that dispute were Georgia on the one
side and Abkhazia and South Ossetia on the other, but not the Russian
Federation. Secondly, even if there was a dispute between Georgia and
the Russian Federation, any such dispute was not one related to the
application or interpretation of CERD.

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  24. Georgia, in response, contends that the record shows that, over a
period of more than a decade prior to the filing of its Application, it has
consistently raised its serious concerns with the Russian Federation over
unlawful acts of racial discrimination that are attributable to that State,
making it clear that there exists a long‑standing dispute between the two
States with regard to matters falling under CERD.
  25. The Parties, in elaborating their positions, addressed the legal
requirements for the existence of a dispute and the facts in the record in
this case.

                       1. The Meaning of “Dispute”

   26. On the law, the Russian Federation contends in the first place that
the word “dispute” in Article 22 of CERD has a special meaning which is
narrower than that to be found in general international law and accord-
ingly more difficult to satisfy. The Russian Federation submits that, under
CERD, States parties are not considered to be in “dispute” until a “mat-
ter” between those parties has crystallized through a five‑stage process
involving the procedures established under the Convention. This conten-
tion depends on the wording of Articles 11 to 16 of CERD and the dis-
tinctions they are said to make between “matter”, “complaints” and
“disputes”. Under Article 11, paragraph 1, of CERD, a State party which
considers that another State party is not giving effect to the provisions of
the Convention “may bring the matter to the attention of the Committee
[on the Elimination of Racial Discrimination established by and elected
under the Convention]”. According to the Russian Federation, Article 11
sets out a procedure to be followed under CERD, including transmission
of “the matter” to the State party concerned, its making of written expla-
nations to the Committee clarifying the matter and the remedy, if any, it
has taken (para. 1). If the matter is not adjusted to the satisfaction of
both parties, either by bilateral negotiations or any other procedure
within six months either State has the right to refer the matter again to
the Committee (para. 2). The Committee is to deal with the matter after
it has ascertained that domestic remedies have been exhausted (para. 3).
It may “[i]n any matter referred to it” call upon the States concerned to
supply any other relevant information (para. 4) and the States concerned
are entitled to representation in the proceedings of the Committee while
“the matter is under consideration” (para. 5).

   27. The Russian Federation points out that it is only after those five
stages are completed that in Article 12 the word “dispute” (in the phrase
“parties to the dispute”) appears. In its submission :

       “In contrast to Article 11, where the term ‘dispute’ is carefully
     avoided, there are some six references to ‘States parties to the dispute’

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     in Article 12. This cannot be inadvertent — the parties evidently
     wished to distinguish between the communication and adjustment of
     a non‑crystallized matter, and the point at which that matter had been
     escalated via a five‑stage process such that it could then, but only then,
     be properly characterized as a dispute.”

The same distinction, says the Russian Federation, between the non‑
crystallized “matter” and the “dispute” is reflected in the relevant parts of
the Committee’s Rules of Procedure. Article 16 also uses both terms in
establishing that the provisions of CERD “concerning the settlement of
disputes or complaints shall be applied without prejudice to other proce-
dures for settling disputes or complaints” laid down in other instruments.
The reference to “complaints” in that provision is explained, according to
the Russian Federation, by the drafting history which shows that the
term “complaint” was the term originally used for “matter” in Article 11.
The wording, confirmed by the drafting history, in the Russian Federa-
tion’s submissions, leads to the conclusion that :

     “as a matter of the interpretation of the word ‘dispute’ in Article 22
     in its relevant context, a specific degree of crystallization is required
     for there to be a ‘dispute’ at all. And, even on Georgia’s case on the
     relevant facts, that degree of crystallization is manifestly absent.”

                                        *
   28. Georgia, in its submissions, rejects the argument that the term
 “dispute” in Article 22 has a special meaning. It contends that the rele-
vant provisions of CERD, particularly Articles 12 and 13, use the terms
“matter”, “issue” and “dispute” without distinction or any trace of any
special meaning. While in Article 12, paragraph 1, the term “dispute” (in
the phrase “parties to the dispute”) does appear early in the provision, the
subject‑matter of the process for amicable solution remains identified as
“the matter”. Further, although the word “dispute” is used in para-
graphs 2, 5, 6 and 7 of Article 12, once the process prescribed in that
provision is completed, Article 13, paragraph 1, which regulates the final
stage of the process, uses the terms “matter”, “issue” and “dispute”.
Moreover, the usage by the Committee on the Elimination of Racial
Discrimination in Article 72 of its Rules is not consistent on this matter,
whatever weight may be given to them in the interpretation of the
Convention.

                                    *       *
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   29. The Court does not consider that the words “matter”, “complaint”,
“dispute” and “issue” are used in Articles 11 to 16 in such a systematic
way that requires that a narrower interpretation than usual be given to
the word “dispute” in Article 22. Further, the word “dispute” appears in
the first part of Article 22 in exactly the same way as it appears in several
other compromissory clauses adopted around the time CERD was being
prepared : “Any dispute between two or more States parties with respect
to the interpretation or application of this Convention . . .” (e.g., Optional
Protocol of Signature to the Conventions on the Law of the Sea of 1958
concerning the Compulsory Settlement of Disputes, Article 1 ; Single
Convention on Narcotic Drugs of 1961, Article 48 ; Convention on the
Settlement of Investment Disputes between States and Nationals of other
States of 1965, Article 64). That consistency of usage suggests that there
is no reason to depart from the generally understood meaning of “dis-
pute” in the compromissory clause contained in Article 22 of CERD.
Finally, the submissions made by the Russian Federation on this matter
did not in any event indicate the particular form that narrower interpreta-
tion was to take. Accordingly, the Court rejects this first contention of the
Russian Federation and turns to the general meaning of the word “dis-
pute” when used in relation to the jurisdiction of the Court.

   30. The Court recalls its established case law on that matter, beginning
with the frequently quoted statement by the Permanent Court of Interna-
tional Justice in the Mavrommatis Palestine Concessions case in 1924 : “A
dispute is a disagreement on a point of law or fact, a conflict of legal
views or of interests between two persons.” (Judgment No. 2, 1924,
P.C.I.J., Series A, No. 2, p. 11.) Whether there is a dispute in a given case
is a matter for “objective determination” by the Court (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advi-
sory Opinion, I.C.J. Reports 1950, p. 74). “It must be shown that the
claim of one party is positively opposed by the other” (South West Africa
(Ethiopia v. South Africa ; Liberia v. South Africa), Preliminary Objec-
tions, Judgment, I.C.J. Reports 1962, p. 328) (and most recently Armed
Activities on the Territory of the Congo (New Application : 2002) (Demo-
cratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2006, p. 40, para. 90). The Court’s determina-
tion must turn on an examination of the facts. The matter is one of sub-
stance, not of form. As the Court has recognized (for example, Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nige-
ria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315,
para. 89), the existence of a dispute may be inferred from the failure of a
State to respond to a claim in circumstances where a response is called
for. While the existence of a dispute and the undertaking of negotiations
are distinct as a matter of principle, the negotiations may help demon-
strate the existence of the dispute and delineate its subject‑matter.

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   The dispute must in principle exist at the time the Application is sub-
mitted to the Court (Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1998, pp. 25‑26, paras. 42‑44 ; Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 130-
131, paras. 42‑44) ; the Parties were in agreement with this proposition.
Further, in terms of the subject‑matter of the dispute, to return to the
terms of Article 22 of CERD, the dispute must be “with respect to the
interpretation or application of [the] Convention”. While it is not neces-
sary that a State must expressly refer to a specific treaty in its exchanges
with the other State to enable it later to invoke that instrument before the
Court (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1984, pp. 428‑429, para. 83), the exchanges must
refer to the subject‑matter of the treaty with sufficient clarity to enable the
State against which a claim is made to identify that there is, or may be, a
dispute with regard to that subject‑matter. An express specification would
remove any doubt about one State’s understanding of the subject‑matter
in issue and put the other on notice. The Parties agree that that express
specification does not appear in this case.

             2. The Evidence about the Existence of a Dispute
  31. The Court now turns to the evidence submitted to it by the Parties
to determine whether it demonstrates, as Georgia contends, that at the
time it filed its Application, on 12 August 2008, it had a dispute with the
Russian Federation with respect to the interpretation or application of
CERD. The Court needs to determine (1) whether the record shows a
disagreement on a point of law or fact between the two States ; (2) whether
that disagreement is with respect to “the interpretation or application” of
CERD, as required by Article 22 of CERD ; and (3) whether that dis-
agreement existed as of the date of the Application. To that effect, it
needs to determine whether Georgia made such a claim and whether the
Russian Federation positively opposed it with the result that there is a
dispute between them in terms of Article 22 of CERD.
  32. Before the Court considers the evidence bearing on the answers to
those issues, it observes that disputes undoubtedly did arise between
June 1992 and August 2008 in relation to events in Abkhazia and South
Ossetia. Those disputes involved a range of matters including the status
of Abkhazia and South Ossetia, outbreaks of armed conflict and alleged
breaches of international humanitarian law and of human rights, includ-
ing the rights of minorities. It is within that complex situation that the
dispute which Georgia alleges to exist and which the Russian Federation
denies is to be identified. One situation may contain disputes which relate

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86 	      convention on racial discrimination (judgment)

to more than one body of law and which are subject to different dispute
settlement procedures (see, for example, United States Diplomatic and
Consular Staff in Tehran (United States of America v. Iran), Judgment,
I.C.J. Reports 1980, pp. 19‑20, paras. 36‑37 ; Border and Transborder
Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, pp. 91‑92, para. 54) ; the Parties accepted
that proposition.

   33. The Parties referred the Court to many documents and statements
relating to events in Abkhazia and South Ossetia from 1990 to the time of
the filing by Georgia of its Application and beyond. In their submissions
they emphasized those with an official character. The Court will limit
itself to official documents and statements.

   34. The Parties also distinguished between documents and statements
issued before 2 July 1999 when Georgia became party to CERD, thus
establishing a treaty relationship between Georgia and the Russian Fed-
eration under CERD, and the later documents and statements, and, in
respect of those later documents and statements, between those issued
before the armed conflict which began on the night of 7 to 8 August 2008
and those in the following days up to 12 August when the Application
was filed. Georgia cited statements relating to events before 1999 “not as
a basis for Georgia’s claims against Russia in this action, but as evidence
that the dispute with Russia over ethnic cleansing is long‑standing and
legitimate and not of recent invention”. The Court will also make a dis-
tinction between documents issued and statements made before and after
Georgia became party to CERD.

   35. The documents and statements also vary in their authors, their
intended, likely and actual recipients or audience, the occasion of their
delivery and their content. Some are issued by the Executive or members
of the Executive of one Party or the other — the President, the Foreign
Minister, the Foreign Ministry and other Ministries — and others by Par-
liament, particularly of Georgia, and members of Parliament. Some are
press statements or records of interviews, others are internal minutes of
meetings prepared by one Party. Some are directed to particular recipi-
ents, particularly by a member of the Executive (the President or Foreign
Minister) to the counterpart of the other Party or to an international
organization or official such as the United Nations Secretary‑General or
the President of the Security Council. The other Party may or may not be
a member of the organization or body. One particular category consists
of reports submitted to treaty monitoring bodies, such as the Human
Rights Committee, the Committee on the Elimination of Racial Discrim-
ination, and the Committee against Torture. Another category is made
up of Security Council resolutions adopted between 1993 and April 2008

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relating to Abkhazia. Other documents record agreements between
various parties or are formal minutes of their meetings. The parties some-
times include the “Abkhaz side”, the “South Ossetian side”, the “North
Ossetian side”, in some cases with Georgia alone and in the others with
Georgia and Russia and both “Ossetian sides”. The reference to “parties”
may sometimes be elaborated as “parties to the conflict” or “parties to
the agreement”. The United Nations High Commissioner for Refugees
(UNHCR) and the Organization for Security and Co‑operation in Europe
(OSCE) have also been signatories in appropriate cases, but are not
named as parties to the agreements.

   36. The Russian Federation, in addressing the above matters, empha-
sized the need, if documents and statements were to be evidence of a dis-
pute between it and Georgia, that they be presented by members of the
Georgian Executive and in such a way that the document or statement
would, or would be expected to, come to the attention of the authorities
of the Russian Federation. It accordingly contended that statements and
resolutions adopted by the Georgian Parliament or statements made by
Parliamentary Officers were not relevant. Georgia replied that a number
of those Parliamentary resolutions were “adopted by the foreign ministry
and submitted to the United Nations as statements of the government’s
position”.
   37. The Parties gave their main attention to the contents of the docu-
ments and statements and the Court will do likewise, while taking account
of the various matters addressed in the previous two paragraphs. It
observes at this stage that a dispute is more likely to be evidenced by a
direct clash of positions stated by the two Parties about their respective
rights and obligations in respect of the elimination of racial discrimina-
tion, in an exchange between them, but, as the Court has already noted,
there are circumstances in which the existence of a dispute may be inferred
from the failure to respond to a claim (see paragraph 30). Further, in
general, in international law and practice, it is the Executive of the State
that represents the State in its international relations and speaks for it at
the international level (Armed Activities on the Territory of the Congo
(New Application : 2002) (Democratic Republic of the Congo v. Rwanda),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 27,
paras. 46‑47). Accordingly, primary attention will be given to statements
made or endorsed by the Executives of the two Parties.

   38. The Parties in addressing the contents of the various documents
and statements considered (1) the alleged parties to the various disputes
or conflicts, (2) the various roles which the Russian Federation played
and (3) the different subject‑matter of the disputes. On the first, the Rus-
sian Federation contended that the principal relationships in issue were
between Georgia on the one side, and Abkhazia or South Ossetia on the

21

88 	      convention on racial discrimination (judgment)

  other, while Georgia submitted that the relationships were between it and
  the Russian Federation. On the second matter, which is related to the
  first, the Russian Federation emphasized that its role was as facilitator in
  contacts and negotiations between Georgia and the Abkhaz and South
  Ossetian sides and as peacekeeper while Georgia contended that the
Russian Federation had a more direct role, which included the facilitating
 and tolerating of acts of racial discrimination by the separatists. And, on
 the third, the Russian Federation submitted that the primary dispute
 which existed between Georgia on one side and Abkhazia and South
 Ossetia on the other was about the status of the regions. The primary
 dispute that existed between Georgia and the Russian Federation was
 about the allegedly unlawful use of force by the Russian Federation after
 7 August 2008. Georgia by contrast emphasized the references in the
 statements to “ethnic cleansing” and to the obstacles in the way of the
 return of refugees and internally displaced persons (IDPs). The Court will
 take account of those matters as it reviews the legal significance of
 the documents and statements to which the Parties gave their principal
 attention.
     39. Before it considers those documents and statements, the Court
  addresses the agreements reached in the 1990s and the Security Council
  resolutions adopted from the 1990s until early 2008. Those agreements
  and resolutions provide an important part of the context in which the
  statements the Parties invoke were made. In particular they help define
  the different roles which the Russian Federation was playing during that
  period.

        3. Relevant Agreements and Security Council Resolutions
   40. So far as South Ossetia is concerned, Georgia and the Russian
Federation on 24 June 1992 concluded an agreement on principles of
settlement of the Georgian‑Ossetian conflict (the Sochi Agreement). In
the preamble they declared that they were striving for the immediate ces-
sation of the bloodshed and achieving a comprehensive settlement of the
conflict between the Ossetians and Georgians ; they were guided by the
desire to witness a speedy restoration of peace and stability in the region ;
they reaffirmed their commitment to the principles of the United Nations
Charter and the Helsinki Final Act ; and they acted in the spirit of respect
for human rights and fundamental freedoms, as well as the rights of eth-
nic minorities. The agreement provided for a ceasefire and a withdrawal
of armed formations (with particular contingents of the Russian Federa-
tion identified) ; and, to exercise control over the implementation of those
measures, a mixed control commission was to be established, consisting
of representatives of all parties involved in the conflict. It was to work in
close co‑operation with the joint group of military observers already
agreed to. The parties were to start negotiating immediately on the eco-
nomic recovery of the regions located in the conflict zone, and the cre-
ation of proper conditions for the return of refugees. The first decision of

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89 	      convention on racial discrimination (judgment)

the Joint Control Commission (JCC) adopted on 4 July 1992 was to
determine that the joint forces (later known as the Joint Peacekeeping
Forces) would have 1,500 persons (500 from each of Georgia, the Russian
Federation and the Ossetian side) with 900 in reserve. In a Georgia‑
Russian Federation Protocol of Negotiations of 9 April 1993, the delega-
tions agreed, in the context of the Georgian‑Ossetian conflict, to render
support to the endeavours of the Conference on Security and Co‑operation
in Europe (CSCE) aimed at facilitating a dialogue between the parties to
the conflict in order to secure a peaceful and comprehensive settlement
and to creating conditions for the return of refugees to the places of their
permanent residence.

   41. Two years later, on 31 October 1994, an Agreement on the Further
Development of the Georgian Ossetian Peaceful Settlement Process and
on the JCC was signed by the Georgian party, the Russian Federation
party, the South‑Ossetian party and the North‑Ossetian party in the pres-
ence of the CSCE representatives. The Agreement distinguished between
“the parties” and the “parties in conflict”. The “parties”, recognizing the
urgent need for a wholesale settlement of the Georgian‑Ossetian conflict,
agreed on the need to further develop the process of peaceful settlement
of that conflict. They noted that the JCC had “largely fulfilled its func-
tions of ensuring control of [the] ceasefire, withdrawing armed units and
maintaining safety measures, thus laying [the] foundation for the process
of political settlement” and they decided that the JCC would be a perma-
nent body of the four parties involved in settling the conflict and mitigat-
ing its consequences. The “parties in conflict” reaffirmed their obligations
to resolve all differences through peaceful means. In December 1994 the
JCC stated that the Russian Federation battalion of the peacekeeping
forces was the guarantor of relative stability in the area.

   42. In the course of 1997, 1998 and 1999, the JCC and bodies estab-
lished by it met and adopted decisions for the voluntary return of IDPs
and refugees. Those meetings continued until at least 2004. The record of
the last in the case file, held on 16 April 2004, states that “the preliminary
stage [on certain matters] within the competence of the JCC has been
completed” and the JCC requests the Governments of the Russian Fed-
eration and Georgia to give instructions to appropriate ministries and
calls for regular meetings between the Governments to discuss progress.

   43. On 31 March 1999, the JCC stated its opinion that “the peace
keeping forces keep on being a major sponsor of the peace and a calm
life”. It also noted the positive contribution of the OSCE Mission in
Georgia.

                                      *
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90 	      convention on racial discrimination (judgment)

   44. So far as Abkhazia is concerned, the President of the Russian Fed-
eration and the Chairman of the State Council of the Republic of Geor-
gia on 3 September 1992 signed the Moscow Agreement. Their discussions,
they recorded, had involved “leaders of Abkhazia, the North Caucasus
Republics, Regions and Districts of the Russian Federation”. The agree-
ment provided for a ceasefire, confirmed the necessity of observing the
international norms in the sphere of human rights and minority rights,
the inadmissibility of discrimination, and provided that “[t]he Troops of
the Russian Federation, temporarily deployed on the territory of Geor-
gia, including in Abkhazia, shall firmly observe neutrality”. A protocol
of negotiations signed by Georgia and the Russian Federation on
9 April 1993 provided for the functioning of the Commission for Control
and Inspection in Abkhazia, composed of representatives appointed by
the Georgian authorities including those from Abkhazia and the authori-
ties of the Russian Federation. It was to guarantee compliance with the
ceasefire and to perform other functions agreed by the parties represented
in the Commission. A special group was to address the return and accom-
modation of refugees and IDPs and measures were to be taken to protect
the human rights of minorities (see paragraph 40).

  45. On 9 July 1993, the Security Council requested the Secretary‑
General to make the necessary preparations for a military observer mission
once the ceasefire between the Government of Georgia and the Abkhaz
authorities was implemented (Security Council resolution 849 (1993)).
The ceasefire agreement was signed on 27 July 1993 with the mediation of
the Deputy Foreign Minister of the Russian Federation in the role of
facilitator and the joint commission was established. The parties consid-
ered it necessary to invite international peacekeeping forces in the conflict
zones ; “[t]his task may be shared, subject to consultation with the United
Nations, by the Russian military contingent temporarily deployed in the
zone”. The United Nations Observer Mission in Georgia (UNOMIG)
was established by Security Council resolution 858 (1993) on 24 August
1993. On the outbreak of fighting in September, the Security Council, in
the words of its President, “strongly condemn[ed] this grave violation by
the Abkhaz side of the . . . ceasefire agreement of 27 July 1993” (United
Nations doc. S/26463), and the representative of the Russian Federation
recorded the deep concern felt in the Russian Federation at the violation
by the Abkhazian side of its ceasefire agreement (United Nations doc. S/
PV.3295). On 19 October 1993 the Council, expressed its deep concern at
the human suffering caused by conflict in the region and at reports of
“ethnic cleansing” and other serious violations of international humani-
tarian law, reaffirmed its strong condemnation of the grave violation by
the Abkhaz side of the ceasefire agreement and affirmed the right of refu-
gees and displaced persons to return to their homes. It reiterated its sup-
port for the efforts of the Secretary‑General and his Special Envoy, in
co‑operation with the Chairman‑in‑Office of the CSCE and with the assis-

24

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tance of the Government of the Russian Federation as a facilitator, to
carry forward the peace process with the aim of achieving an overall
political settlement (Security Council resolution 876 (1993)).

   46. At the first round of negotiations between the Georgian and
Abkhaz sides, held in Geneva from 30 November to 1 December 1993,
under the aegis of the United Nations, with the Russian Federation as
facilitator and a representative of the CSCE, the parties committed them-
selves not to use force or the threat of force during the peaceful settlement
negotiations, stated that the maintenance of peace would be promoted by
an increase in the number of international observers and by the use of
international peacekeeping forces, agreed to exchange prisoners of war,
to find an urgent solution to the problem of refugees and displaced per-
sons, and to have a group of experts prepare a report on the status of
Abkhazia. On 4 April 1994 a Quadripartite Agreement on Voluntary
Return of Refugees and Displaced Persons was signed by the Abkhaz and
Georgian sides as “the Parties”, as well as by the Russian Federation and
UNHCR. In that Agreement, the Russian Federation undertook certain
obligations relating to the return of refugees and displaced persons.

   47. The Geneva process continued for more than a decade and was
assisted by the Group of Friends of the Secretary‑General (France, Ger-
many, the Russian Federation, the United Kingdom and the United
States). Georgia and the Russian Federation again proposed that the
Security Council consider the question of a peacekeeping operation to be
carried out by the United Nations or with its authorization, relying, if
necessary, on a Russian Federation military contingent (joint letter of
4 February 1994 (United Nations doc. S/1994/125) ; see also the Geor-
gian/Abkhazian declaration of 4 April 1994). The Security Council did
not respond to that proposal and on 14 May 1994 the Georgian side and
the Abkhaz side in the Agreement on a Ceasefire and Separation of
Forces agreed that “[t]he peacekeeping force of the Commonwealth of
Independent States and the military observers . . . shall be deployed in the
security zone to monitor compliance with this Agreement.” On
30 June 1994 the Security Council “[n]ote[d] with satisfaction the begin-
ning of Commonwealth of Independent States (CIS) assistance in the
zone of conflict, in response to the request of the parties” (Security Coun-
cil resolution 934 (1994) ; see also Security Council resolutions 901 (1994)
and 937 (1994)).

  48. Over the following years, until 15 April 2008, the Security Council
adopted a series of resolutions regarding the situation in Abkhazia, Geor-
gia, with recurring elements. It is convenient at this point to quote pas-

25

92 	           convention on racial discrimination (judgment)

sages addressing those recurring elements from resolutions adopted
in 1994 and 1996. In resolution 937 (1994), the Security Council :

        “Reaffirming its commitment to the sovereignty and territorial
     integrity of the Republic of Georgia, and the right of all refugees and
     displaced persons affected by the conflict to return to their homes in
     secure conditions, in accordance with international law and as set out
     in the Quadripartite Agreement,
        Stressing the crucial importance of progress in the negotiations
     under the auspices of the United Nations and with the assistance of
     the Russian Federation as facilitator and with the participation of
     representatives of the Conference on Security and Co-operation in
     Europe (CSCE) to reach a comprehensive political settlement of the
     conflict, including on the political status of Abkhazia, respecting fully
     the sovereignty and territorial integrity of the Republic of Georgia,
     based on the principles set out in its previous resolutions,

     �����������������������������������������������������������������������������������������������������������������
     2. Calls upon the parties to intensify their efforts to achieve an early
            and comprehensive political settlement under the auspices of the
            United Nations with the assistance of the Russian Federation as
            facilitator and with the participation of representatives of the
            CSCE, and welcomes the wish of the parties to see the United
            Nations continue to be actively involved in the pursuit of a polit-
            ical settlement ;
     3. Commends the efforts of the members of the CIS directed towards
            the maintenance of a cease‑fire in Abkhazia, Republic of Georgia,
            and the promotion of the return of refugees and displaced persons
            to their homes in accordance with the Agreement signed in Mos-
            cow on 14 May 1994 in full co-operation with the United Nations
            High Commissioner for Refugees (UNHCR) and in accordance
            with the Quadripartite Agreement ;
     4. Welcomes the contribution made by the Russian Federation, and
            indications of further contributions from other members of the
            CIS, of a peace‑keeping force, in response to the request of the
            parties, pursuant to the 14 May Agreement, in co-ordination with
            UNOMIG . . . and in accordance with the established principles
            and practices of the United Nations ;
       �����������������������������������������������������������������������������������������������������������������
     9. Reaffirms its support for the return of all refugees and displaced
        persons to their homes in secure conditions, in accordance with
        international law and as set out in the Quadripartite Agree-
        ment . . .”
  Similarly, in resolution 1036 (1996), the Security Council :

26

93 	         convention on racial discrimination (judgment)

          “Stressing the need for the parties to intensify efforts, under the
     auspices of the United Nations and with the assistance of the Russian
     Federation as facilitator, to achieve an early and comprehensive
     political settlement of the conflict, including on the political status of
      Abkhazia, fully respecting the sovereignty and territorial integrity
      of Georgia,
          Reaffirming also the right of all refugees and displaced persons
      affected by the conflict to return to their homes in secure conditions
      in accordance with international law and as set out in the Quadripar-
      tite Agreement of 14 April 1994,
      �����������������������������������������������������������������������������������������������������������������
          Noting that the Moscow Agreement of 14 May 1994 on a Cease‑fire
      and Separation of Forces (S/1994/583, Annex I) has generally been
      respected by the parties with the assistance of the Commonwealth of
      Independent States (CIS) peacekeeping forces and the United Nations
      Observer Mission in Georgia (UNOMIG),
          Expressing its satisfaction with the close co-operation and co-
      ordination between UNOMIG and the CIS peace‑keeping force in
      the performance of their respective mandates and commending the
      contribution both have made to stabilize the situation in the zone
      of conflict,
      �����������������������������������������������������������������������������������������������������������������
      3. Reaffirms its full support for the efforts of the Secretary-General
             aimed at achieving a comprehensive political settlement of the
             conflict, including on the political status of Abkhazia, respecting
             fully the sovereignty and territorial integrity of Georgia, as well as
             for the efforts that are being undertaken by the Russian Federa-
             tion in its capacity as facilitator to intensify the search for a peace-
             ful settlement of the conflict, and encourages the Secretary-General
             to continue his efforts, with the assistance of the Russian Federa-
             tion as facilitator, and with the support of the Organization for
             Security and Co-operation in Europe (OSCE), to that end ;
      �����������������������������������������������������������������������������������������������������������������
      8. Calls upon the parties to improve their co-operation with
             UNOMIG and the CIS peace‑keeping force in order to provide
             a secure environment for the return of refugees and displaced
             persons and also calls upon them to honour their commitments
             with regard to the security and freedom of movement of all
             United Nations and CIS personnel and with regard to UNOMIG
             inspections of heavy weapons storage sites ;
      9. Welcomes the additional measures implemented by UNOMIG
             and the CIS peace‑keeping force in the Gali region aimed at
             improving conditions for the safe and orderly return of refugees
             and displaced persons, and all appropriate efforts in this regard.”

27

94 	      convention on racial discrimination (judgment)

As appropriate, the Court refers back to these standard paragraphs and
highlights particular elements later in this part of the Judgment.

  49. In September 2003 the Council of Heads of States of the CIS,
expressing its gravest concern over unsettled problems resulting from the
conflict in Abkhazia (Georgia), decided to extend the term of stay and the
mandate of the collective peacekeeping forces until a conflicting party
requested that the operation should be discontinued, in which event the
withdrawal was to be effected within a month ; the concluding statement
on the meetings between President Putin and President Shevardnadze,
held on 6 and 7 March 2003, was essentially to the same effect. It was
only after the armed conflict of August 2008 that Georgia made such a
request, on 1 September 2008.

         4. Documents and Statements from the Period before
       CERD Entered into Force between the Parties on 2 July 1999
   50. The Court recalls that it is examining the documents and state-
ments issued before 2 July 1999 and invoked by Georgia in light of Geor-
gia’s contention that its dispute with the Russian Federation “over ethnic
cleansing is long-standing and legitimate and not of recent invention”
(paragraph 34 above). These earlier documents and statements may help
to put into context those documents or statements which were issued or
made after the entry into force of CERD between the Parties.

     51. The earliest document invoked by Georgia as supporting its sub-
mission that it has a dispute with the Russian Federation about racial
discrimination is a letter of 2 October 1992 from the Vice‑Chairman of
the State Council of Georgia to the President of the Security Council
(United Nations doc. S/24626). That letter and a related appeal to the
CSCE described aspects of the “large‑scale offensive” in Abkhazia by
“Abkhaz separatists in conjunction with mercenary terrorists”, and
continued that “[t]he conspiracy of the Abkhaz separatists and the reac-
 tionary forces in Russia is quite apparent”. Both documents also claimed
 that the attackers were armed with “tanks and other modern weaponry,
 the kind the Russian army is currently equipped with”. The appeal added
 that the influx of organized armed groups from the territory of the
 Russian Federation had increased, by land and sea routes, controlled by
  the Armed Forces of the Russian Federation. Contrary to the submission
  made by Georgia to the Court, the statements do not claim the Russian
  Federation was facilitating ethnic cleansing. Accordingly, the Court does
  not consider that they are evidence that the Russian Federation was par-
  ticipating in support, sponsorship and defence of the discriminatory
  activities of the separatist authorities in the early 1990s, as Georgia has
  alleged.
     52. On 17 December 1992 the Georgian Parliament adopted a state-
  ment which referred to “the mass shooting of civilian Georgian popula-

28

95 	      convention on racial discrimination (judgment)

tion and the policy of ethnic cleansing” and to “armed Abkhaz separatists
together with Russian reactionary forces apparently follow[ing] a violent
way of disrupting Georgia’s territorial integrity”. It continued by listing
alleged “immediate involvement of Russian armed forces in the conflict
on the side of the extremist separatists”. The emphasis throughout is on
the alleged use by the Russian Federation of armed force and disruption
of Georgia’s territorial integrity and sovereignty. The Georgian Parlia-
ment does not claim that the Russian Federation had engaged in ethnic
cleansing. Accordingly, the Court cannot take the Parliamentary state-
ment into account for the purposes of the present case.

   53. In a Note Verbale to the Secretary‑General of 25 December 1992,
Georgia forwarded a letter from Mr. Shevardnadze, Chairman of the
Georgian Parliament and Head of State, about “[t]he illegal penetration
of the Georgian territory by foreign nationals fighting for the Abkhaz
military units against Georgia . . . Particularly disturbing is the participa-
tion of the Russian troops stationed in Abkhazia on the side of Abkhaz
extremists.” (United Nations doc. S/25026.) Again the emphasis was on
the alleged use of armed force and the violation of Georgia’s territorial
integrity as well as on the peaceful settlement of what was referred to as
“the Abkhaz problem”. While the letter referred to the bombing of civil-
ian targets by “the reactionary forces ensconced within the political cir-
cles of the Russian Federation”, the letter distinguishes these forces and
circles from the Government of the Russian Federation. Further, it does
not mention racial discrimination. For those reasons, the Court does not
consider that this letter demonstrates the existence of a dispute between
the two Parties about racial discrimination.

   54. On 1 April 1993 the Parliament of Georgia, in an appeal to the
United Nations, the CSCE and international human rights organizations,
stated that a “policy of ethnic cleansing is being implemented in a part of
the Georgian territory, Abkhazia, that is controlled by the separatist
group of Gudauta, by means of Russian troops”. This “policy” it evalu-
ated as a continuation of aggression, aimed at Georgia’s territorial integ-
rity and independence. The Georgian Parliament added that “Russia . . .
bears full responsibility for the . . . policy”. The Georgian Parliament on
the same day issued a Decree to the same effect and called on the Council
of National Security and Defence of Georgia to take all measures neces-
sary to ensure the return of IDPs to their homes. There is no evidence
that this statement and Decree were endorsed by the Georgian Executive.
The Court accordingly cannot give them any legal significance for the
purposes of the present case.

  55. On 27 April 1993 the Georgian Parliament, in a Decree on the
withdrawal of Russian Military Units from the conflict zone in Abkhazia,
expressed its belief “that the root cause of the tragic events in Abkhazia,

29

96 	      convention on racial discrimination (judgment)

Georgia is the Russian Federation’s attempt to annex, in fact, a part of
the territory of Georgia” and decreed that “[t]he Head of State of Geor-
gia shall appeal to the President of the Russian Federation to withdraw
the Russian troops from Abkhazia”. It recited that “[g]enocide and ethnic
cleansing of the Georgian population is taking place in the territory under
the control of the Russian troops and Abkhaz separatists”. The recital to
the Decree alleged that the Russian Federation had violated the Moscow
Agreement of 3 September 1992 (see paragraph 44 above). On the record
before the Court, the Georgian Government did not make the appeal
which the Parliament had decreed. What the record does show is that
Russian Federation armed forces remained in Georgia under the various
agreements reached in the early 1990s until the time of the armed conflict
in August 2008 (paragraph 49 above). Taking account of the Parliamen-
tary character of the Decree, the fact that it was not followed up by the
Georgian Executive, and its emphasis on withdrawal of the troops rather
than on ethnic cleansing, the Court cannot give it any legal significance
for the purposes of the present case.
   56. On 20 September 1993, President Shevardnadze in a letter for-
warded to the President of the Security Council wrote from “besieged
Sukhumi”. He said that “[t]his land has been a cradle to both Georgians
and Abkhaz” but that the Moscow Agreement of 3 September 1992 “was
trampled by the boots of the mercenaries”. He did not doubt the sincerity
of the efforts of the President of the Russian Federation to promote a
settlement to the conflict ; “in this, however, he is impeded by the same
force which is trying to crush us”. He continued :

        “That notwithstanding, I appeal once again to Boris Nikolaevich
     Yeltsin, to the United Nations Security Council and Mr. Boutros‑Ghali,
     to the entire progressive and democratic Russian nation and to all the
     peoples of the world : do not allow this monstrous crime to be com-
     mitted, halt the execution of a small country and save my homeland
     and my people from perishing in the fires of imperial reaction. The
     world must not condone the annihilation of one of its most ancient
     nations, the creator of a great culture and heir to exalted spiritual
     traditions.” (United Nations doc. S/26472.)
 Given that appeal and the reference in the letter to Abkhazia being “the
 fuse with which [the Abkhaz separatists] intend to blow up not only She-
vardnadze’s Georgia but also Yeltsin’s Russia”, the Court does not
consider that this letter can be read as Georgia making a claim regarding
 racial discrimination against the Government of the Russian Federation.

  57. In a letter of 12 October 1993, the Georgian President requested a
meeting of the Security Council. The letter began with a reference to the
“savage massacre of the civilian population [by the Gudauta armed

30

97 	      convention on racial discrimination (judgment)

groups]”. It declared the belief of the Georgian Republic that the facts
about ethnic cleansing and genocide of the peaceful population in Abkha-
zia required a severe condemnation by the Council. “If we take into
consideration multiple statements by Abkhaz separatists, we need to

acknowledge that there is a serious threat placed upon the territorial
integrity of the Georgian Republic.” He expected the Council to use its
authority “to coerce Abkhaz leaders to cease their abominable violations
of human dignity and the heartless slaughter of these persecuted ethnic
Georgians”, and expressed the hope that the Council would instruct all
United Nations members to desist in their support of Abkhaz separatists.
The only reference to the Russian Federation was to the fact that the
Gudauta side was “equipped with state‑of‑the‑art weapons, currently at
the disposal of the Russian military forces” (United Nations doc. S/26576).
Given that the only reference to the Russian Federation in the letter was
an incidental one, and that the letter emphasized the responsibility of
Abkhaz separatists, the Court does not consider that the letter makes a
relevant claim against the Russian Federation.

   58. On 12 October 1994, the Georgian Parliament in a statement about
the situation in the Georgian‑Abkhaz conflict zone said it had become
“extremely tense again”. The statement made various allegations against
“the Abkhaz separatists”, in particular relating to their impeding the
return of thousands of refugees. All the “facts ha[d] taken place in the
‘security zone’, which must be controlled by the peacekeepers of the Rus-
sian Federation”. The statement concludes by rejecting any separation of
Abkhazia from Georgia and calling on the international organizations
involved in the peace process and the Russian Federation for the release
of kidnapped people and the suppression of any attempt of disrupting the
peace process. The Court is unable to see any claim against the Russian
Federation of a breach of its obligations relating to the elimination of
racial discrimination in that Parliamentary statement.

  59. The Georgian Parliament on 17 April 1996 adopted a resolution on
measures for the settlement of the conflict in Abkhazia. It stated that
“separatist forces”, using the most severe methods, through ethnic cleans-
ing and genocide, had separated Abkhazia from Georgia for the time
being. It continued :
        “Despite long‑standing negotiations between the sides participating
     in the conflict of Abkhazia under the auspices of the UN and medi-
     ated by Russia, the intransigent stand of separatists obstructed com-
     promise on the questions of the repatriation of hundreds of thousands
     of refugees and the determination of the status of Abkhazia within
     the territory of Georgia. The separatist regime uses every means to
     strengthen its military potential, to set up independent state structures
     and attributes, to distort history, and to spread misanthropic racist

31

98 	      convention on racial discrimination (judgment)

     ideology. The CIS Heads of States decisions taken in Almaty, Minsk
     and Moscow are not implemented. The separatists with the support
     of external forces purposefully and unilaterally violate these agree-
     ments. Peacekeeping forces, designated by Russia in agreement with
     the CIS and the UN, to this day are unable to fulfill their function.
     They failed to secure the safety of the population, to prevent ethnic
     cleansing and genocide of the Georgian population, to render a real
     assistance to return refugees and internally displaced people to their
     homes.”

The Parliamentary resolution referred to the Russian Federation “as an
interested side”, along with the United Nations, and not as a participant
in the conflict. The only other references to the Russian Federation were
to the mandate and to the withdrawal of the peacekeeping forces :

        “As the Russian peacekeeping forces under the CIS mandate can-
     not provide the safe return of internally displaced persons and refu-
     gees and the protection of their lives and dignity, and in the event that
     the current mandate is retained and Georgian proposals are not con-
     sidered in a new mandate, then the peacekeeping operations shall be
     considered as having no prospects and peacekeeping forces shall be
     withdrawn within two month’s time.”

Again there is no claim regarding the Russian Federation’s compliance
with its obligations relating to the elimination of racial discrimination.
Rather, the claim is that the peacekeeping forces are unable to fulfil their
functions. Accordingly, the Court sees this Parliamentary resolution as
having no legal significance for the purposes of the present case.

   60. On 30 May 1997 the Georgian Parliament issued a “Decree on the
Further Presence of Armed Forces of the Russian Federation Deployed
in the Zone of Abkhaz Conflict under the Auspices of the Commonwealth
of Independent States”. Like the Decree described in paragraph 55, it
dealt with the withdrawal of the Russian Federation troops, but only in
certain circumstances. It notes in its first sentence that “no tangible prog-
ress has been achieved, either in terms of return of refugees and IDPs to
their homes or in terms of restoration of jurisdiction of Georgia in
Abkhazia”. The peacekeeping forces, it continued, “carr[ied] out the
function of border forces, thereby substantially supporting and strength-
ening the separatist regime of Abkhazia, which . . . opposes . . . step by
step return of refugees and IDPs to their homes”. But those Parliamen-
tary statements provide arguments for the proposed actions relating to
the withdrawal of troops and do not expressly allege breaches by the Rus-

32

99 	      convention on racial discrimination (judgment)

sian Federation. In the opinion of the Court, they provide no basis for
finding that a dispute exists between the two Parties concerning the Rus-
sian Federation’s compliance with its obligations owed to Georgia relat-
ing to the elimination of racial discrimination.

   61. The Georgian Parliament on 27 May 1998 made a statement that :
“The recent tragedy in Gali District once again demonstrated that the
Abkhaz separatists continue the implementation of the policy of genocide
and ethnic cleansing in the territory occupied by them.” It continued with
references to “the Abkhaz separatists” and the “armed separatists”, and
stated that
     “[t]he Russian peacekeeping forces, deployed in the region under the
     auspices of the Commonwealth of Independent States, did nothing to
     confront the actions of the Abkhaz side. Instead, in a number of cases,
     they assisted separatists in conducting punitive operations against the
     peaceful population.
        The conduct of peacekeepers during the 20‑26 May events in Gali
     District, amounted to a gross violation of bilateral and multilateral
     agreements, total ignorance of decisions by the Council of CIS Heads
     of States and of the UN Security Council.

        The Parliament of Georgia declares that together with the separa-
     tist leaders, the CIS peacekeeping forces are to a large extent respon-
     sible for the tragedy in Gali District, as they in fact facilitated raids
     against the peaceful population and destruction of villages in their
     entirety.”
There is no evidence that this Parliamentary statement, directed at “sepa-
ratists” and alleging violations of agreements which could not at that
time have included CERD, was known to the authorities of the Russian
Federation. Those authorities would, by contrast, have known that on
26 May 1998 Georgia had written to the President of the Security Council
referring to “the recent tragic events that have taken place in the Gali
region of Abkhazia, Georgia”. That letter discussed the actions of “the
armed Abkhaz military units” and, referring to one situation, stated that
“the interference of the Commonwealth of Independent States (CIS)
peacekeepers averted the massacre of the Georgian population” (United
Nations doc. S/1998/432). The letter continues that the CIS peacekeepers
“have so far been unable to prevent the carnage”, not that they were sup-
porting or participating in it.

  62. On 16 June 1998, the Georgian Permanent Mission again wrote to
the President of the Security Council expressing Georgia’s “extreme
indignation in connection with the developments in the Gali district . . .
where the ethnic cleansing of the Georgian population is continuing

33

100 	     convention on racial discrimination (judgment)

openly”. All the actions described in the statement are attributed to
“so‑called Abkhaz militia forces” and “Abkhaz separatist leaders”. The
statement concluded by expressing the Government’s “confidence in the
ability of international political organizations, first of all, the United
Nations and the Commonwealth of Independent States, to assess the situ-
ation that has come about and take urgent measures” (United Nations
doc. S/1998/516). Again, the Court observes the lack of any allegation
directed at the Russian Federation regarding compliance with its interna-
tional obligations. On the contrary, Georgia was looking to the Russian
Federation, in its role within the Security Council and the CIS, to address
the situation. Accordingly, the Court cannot give any legal significance to
this letter for the purposes of this case.

    63. The Court has now reviewed the documents and statements which
  Georgia invokes to demonstrate that in the period before it became bound
  by CERD it had a dispute with the Russian Federation about racial dis-
crimination by the latter, especially Russian Federation forces, against
ethnic Georgians. The Court concludes that none of the documents or
statements provides any basis for a finding that there was such a dispute
by July 1999. The reasons appear in the foregoing paragraphs in respect
of each document or statement. They relate to the author of the statement
or document, their intended or actual addressee, and their content.
Several of the documents and statements emanated from the Georgian
 Parliament or Parliamentary Officers and were neither endorsed nor acted
 upon by the Executive. Finally, so far as the subject‑matter of each
 document or statement is concerned, it complains of actions by the

 Abkhaz authorities, often referred to as “separatists”, rather than by the
 Russian Federation ; or the subject‑matter of the complaints is the alleged
 unlawful use of force, or the status of Abkhazia, rather than racial
 discrimination ; and, where there is a possibly relevant reference, usually
  to the impeding of return of refugees and IDPs, it is as an incidental ele-
  ment in a larger claim — about the status of Abkhazia, the withdrawal of
  the Russian Federation troops or the alleged unlawful use of force by
  them.

   64. It follows from this general finding of the Court and the specific
findings made in earlier paragraphs that Georgia has not, in the Court’s
opinion, cited any document or statement made before it became party to
CERD in July 1999 which provides support for its contention that “the
dispute with Russia over ethnic cleansing is long‑standing and legitimate
and not of recent invention” (paragraph 34 above). The Court adds that
even if this were the case, such dispute, though about racial discrimina-
tion, could not have been a dispute with respect to the interpretation or
application of CERD, the only kind of dispute in respect of which the
Court is given jurisdiction by Article 22 of that Convention.

34

101 	     convention on racial discrimination (judgment)

       5. Documents and Statements from the Period after CERD
      Entered into Force between the Parties and before August 2008
   65. It is convenient first of all to consider as a group the reports made
after 1999 by the two Parties to treaty monitoring committees. These
reports relate to CERD, the International Covenant on Economic, Social
and Cultural Rights (ICESCR), the International Covenant on Civil and
Political Rights (ICCPR), and the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Georgia
in its first report to the Committee on the Elimination of Racial Dis-
crimination, submitted in 2000, said this :
        “Georgia unreservedly condemns any policy, ideology or practice
     conducive to racial hatred or any form of ‘ethnic cleansing’ such as that
     practised in the Abkhaz region of Georgia following the armed conflict
     of 1992‑1993. Hundreds of thousands of displaced persons, a large
     majority of whom are women, elderly persons and children, lost their
     homes and means of survival and became exiles in their own country.
     Such has been the outcome of the policy pursued by the authorities of
     the self‑proclaimed ‘Republic of Abkhazia’, the aim of which has been
     to ‘cleanse’ the region of Georgians and — in many cases — represent-
     atives of other nationalities as well. Georgia firmly believes that a pol-
     icy founded on racial hatred is a fundamental infringement of human
     rights and should be unconditionally proscribed, condemned and elim-
     inated.” (United Nations doc. CERD/C/369/Add.1.)

The Court observes that this passage — the only one invoked by Geor-
gia — directs no criticism against the Russian Federation, nor was such
criticism made by the Georgian representative before the Committee, by
any member of the Committee or by the Committee in its concluding
observations (United Nations docs. CERD/C/SR.1453, CERD/C/304/
Add.120, CERD/C/SR.1454). Indeed, the Georgian representative before
the Committee said that her Government was currently involved in nego-
tiations to resolve the complicated situation and that the Russian Federa-
tion might have an important part to play in that regard.
   66. Georgia quotes this passage from its combined second and third
reports to the Committee on the Elimination of Racial Discrimination
submitted on 21 July 2004 :
        “Under this article of the Convention, it must be reiterated that,
     owing to the continuing political crisis in Abkhazia and South Osse-
     tia, during the reporting period Georgia was not in a position to
     protect citizens of these regions from criminal acts. In this connection,
     it should be stressed that Georgia does not absolve itself of responsi-
     bility for the situation in this part of its territory, which includes its
     responsibility to safeguard human rights and freedoms.” (United
     Nations doc. CERD/C/461/Add.1.)

35

102 	     convention on racial discrimination (judgment)

Again, the Court observes that the passage directs no criticism against the
Russian Federation, nor did the Georgian representative appearing before
the Committee or any member of the Committee or the Committee itself
(United Nations doc. CERD/C/SR.1706).

 67. In reporting in 2006 to the Committee against Torture (United
Nations doc. CAT/C/SR.699), Georgia stated that :

        “A particular problem arose in Abkhazia, where Russian peace-
     keepers were in some instances aiding or abetting criminal separatists
     and were thereby, actively or by omission, contributing to human
     rights violations in the region. Most of the human rights violations in
     the territory affected ethnic Georgians, and the de facto authorities in
     Abkhazia bore a heavy responsibility for such violations.”

Although there was some criticism of the Russian Federation here, this
did not amount to an allegation against the Russian Federation regarding
the latter’s compliance with its obligations relating to the elimination of
racial discrimination under CERD.
   68. The Russian Federation in its submissions calls attention to the
fact that Georgia, in reporting on its implementation of the two Interna-
tional Covenants on human rights, including in its report on the ICCPR
in 2006 (United Nations doc. CCPR/C/GEO/3), similarly directed no
criticism regarding racial discrimination against the Russian Federation ;
Georgia did not contest this submission. The Russian Federation also
notes that under CERD, Georgia had available to it the procedure for
State to State complaints provided in Articles 11 to 13.

   69. The Court observes that a State may claim that another State is in
breach of its obligations under CERD without initiating that process. It
also observes that in general the process under which States report on a
regular basis to the monitoring committees operates between the report-
ing State and the committee in question ; it is a process in which the State
reports on the steps which it has taken to implement the treaty. The pro-
cess is not designed to involve other States and their obligations. Taking
account of those features and of the actual reports referred to in this case,
the discussions of and the observations on them, the Court does not con-
sider that in this particular case the reports to the committees are signifi-
cant in determining the existence of a dispute.

   70. In respect of other post‑July 1999 statements, Georgia begins by
referring to a meeting on 14 September 2000 at which its Ambassador in
Moscow observed to the Deputy Chairperson of the State Duma of the
Russian Federation that representatives of the legislative and executive
bodies and other bodies of the Russian Federation had established active

36

103 	     convention on racial discrimination (judgment)

contacts with the separatist régime of Abkhazia. The Georgian notes of
that meeting, contrary to Georgia’s submission to the Court, make no
reference to ethnic cleansing but do refer to the deadlock in negotiations
caused by the Abkhazian separatist administration.
   71. The next document invoked by Georgia is a resolution adopted by
the Georgian Parliament in October 2001. This resolution begins with a
reference to the suffering arising “from the tragic results of separatism,
international terrorism and aggression”. It alleged that since the deploy-
ment of Russian Federation peacekeepers under the auspices of the CIS,
the policies of ethnic cleansing had not stopped. In this resolution, the
Russian Federation now appeared as a party involved in the conflict.
Since its peacekeeping forces had failed to carry out their mission, the
Parliament considered the further presence of the CIS collective peace-
keeping forces inexpedient and proposed to the President of Georgia (1)
to implement the procedures for the withdrawal of those forces and (2) to
appeal to the United Nations, the OSCE and governments of friendly
countries to deploy international peacekeeping forces in the conflict zone.
The Georgian Government took no action at that time to have the peace-
keeping forces withdrawn and in terms of point (2), as noted above
(para. 47), it had, with the Russian Federation, earlier called for an inter-
national peacekeeping force possibly including a Russian Federation con-
tingent.

    72. This Parliamentary resolution is to be seen in the context of the
unanimous Security Council resolutions 1339 and 1364 adopted earlier in
2001, in January and July. Those Council resolutions again welcomed the
important contributions that UNOMIG and the CIS peacekeeping forces
continued to make in stabilizing the situation in the zone of conflict, and
strongly supporting the sustained efforts of the Secretary‑General and his
Special Representative, with the assistance of the Russian Federation, in
its capacity as facilitator, as well as the Group of Friends of the Secretary‑
General and of the OSCE, to promote the stabilization of the situa-
tion and the achievement of a comprehensive settlement. A Georgian
representative attended the January 2001 meeting of the Security Council.
 In his speech he expressed Georgia’s “appreciation to the Secretary‑
 General and his Special Representative for Georgia . . . as well as the
 Group of Friends of the Secretary-General, for their tireless efforts in the
 process of achieving a comprehensive settlement of the conflict in
 Abkhazia, Georgia”. He emphasized the upcoming meetings between

 Abkhaz and Georgian representatives and, while he was critical of one
 paragraph of the draft resolution before the Council, he made no reference
 at all to the paragraphs about CIS peacekeepers and the role of the Rus-
 sian Federation as facilitator. Without further discussion, the resolution
 was adopted (United Nations doc. S/PV.4269).

  73. The Court, in assessing the October 2001 Parliamentary resolution,
as with the other documents and statements invoked by the Parties, must

37

104 	      convention on racial discrimination (judgment)

have regard, among other matters, to the distinct roles of the Russian
Federation, in the CIS peacekeeping forces, as facilitator and as one
of the Friends of the Secretary-General. In that context and given that
the Parliamentary resolution had not been endorsed by the Georgian
Government, the Court cannot give it any legal significance for the pur-
poses of the present case.

   74. Security Council resolution 1393 (2002), containing the standard
paragraphs, had been adopted on 31 January 2002, when the Georgian
Parliament on 20 March 2002 adopted a resolution which noted that its
October 2001 resolution had not been acted on and resolved that it was
necessary to implement its requirements. The new Parliamentary resolu-
tion criticized the CIS peacekeeping forces : in reality, it said, they fulfilled
the functions of border guards between Abkhazia and the rest of Georgia
and failed to perform the duties envisaged by their mandate of providing
protection of the population and creation of conditions for the secure
return of IDPs. Further, major violations of human rights and freedoms
on an ethnic basis had been carried out with the assistance of external
military force. Once again, the Georgian Executive did not act upon this
resolution, and it is to be seen in the context of the series of Security
Council resolutions and the actions taken under, and by reference to,
them. Accordingly the Court gives the Parliamentary resolution no legal
significance for the purposes of the present case.

   75. In April 2002, the Minister for Foreign Affairs of the Russian Fed-
eration in talks with the Georgian Ambassador in Moscow denied that
the Russian Federation had supplied arms and ammunition to Abkhazia.
It does not appear from the Georgian record of the talks that any claims
which were made in those talks related to ethnic or racial discrimination.

   76. In January 2003 a delegation of the Georgian Parliament, led by its
speaker, had discussions in Moscow with a group of Russian Federation
parliamentarians including the Chairperson of the Council of the Federa-
tion and the Chairperson of the State Duma. In its submissions, Georgia
called attention to a statement by the Georgian side, when talking about
the CIS peacekeeping forces, suggesting the Russian Federation peace-
keepers move out of the Gali District to facilitate the process of refugee
return which, it said, the Russian Federation side rejected. The Georgian
record of the discussion continued in this way :

         “While discussing the possibility of withdrawal of peacekeeping
     forces from Abkhazia, the Russian side was expressing a clearly
     negative attitude. However, it has been pointed out many times that
      if there is relevant request from the Georgian side, the Russian peace-
     keeping forces will leave the territory of Georgia. According to the
     statement of Russia, if the ‘blue helmets’ are pulled out of Abkhazia,
     the UN observers will also leave the region. The Russian colleagues

38

105 	     convention on racial discrimination (judgment)

     expressed doubt about how the Georgian party would be able to
     control the situation independently and avoid the threat of renewing
      the hostilities.”
This is an exchange between parliamentarians and no claim of racial dis-
crimination against the Russian Federation appears in that exchange.
Accordingly, the Court can give it no legal significance for the purposes
of the present case.
   77. In January 2004, Mikhail Saakashvili, shortly after his election as
President of Georgia but before he assumed office, in a radio interview in
answering a question about Abkhazia, said :

        “It is primarily the issue of our relations with Russia. The Russian
     generals are in command there, they have a military contingent there
     which played a very negative role . . . [M]ost of the population there
     is ethnically Georgian or was ethnically Georgian. Those people were
     thrown out by Russian troops and local separatists and we need to
     change the situation.”
Georgia submits that this statement directly accused the Russian Federa-
tion and its forces of complicity in ethnic cleansing against ethnic Geor-
gians in Abkhazia. While there may be some force in that contention, the
President‑elect immediately followed the passage emphasized by Georgia
by saying that “primarily the way to change that [the situation in Abkha-
zia] is peaceful talks, offering them [the people in Abkhazia] better alter-
natives in terms of Georgian economic development, Georgia’s integration
into Europe”. He said of Abkhazia “[b]asically that is a lawless place . . .
it’s really a black hole . . . Of course Russia doesn’t want to give up the
control over it so we have to talk to them and make them realise that
we’re an independent state . . . But on the other hand we want to be on
good terms with them.” The statement has to be seen in the immediate
context of the wide‑ranging and informal character of the interview and
in the broader context of the relationship between the two countries in
relation to Abkhazia. Security Council resolution 1524 (2004) adopted
two weeks after the interview contained the standard paragraphs com-
monly included in Security Council resolutions, relating among other
things to the various roles of the Russian Federation (see paragraphs 48
and 71). Further, the record does not include any specific follow‑up by
the new President or under his instructions to whatever claim might have
been made against the Russian Federation in the interview.

   78. The next relevant document in the record is a letter of 26 July 2004
by President Saakashvili to President Putin. It primarily concerns contin-
gents of “illegal armed formations” in South Ossetia, beyond the num-
bers agreed in 2003 ; armed attacks ; the granting of Russian Federation
citizenship there ; criminal activity ; and the resulting need for political

39

106 	     convention on racial discrimination (judgment)

dialogue at a plenipotentiary level and an increased role for the OSCE.
Regarding Abkhazia, the Georgian President raised issues about the ter-
ritorial integrity of Georgia. The President of the Russian Federation in
his reply proposed measures which should be taken with a view to the
stabilization of the situation and the creation of conditions for the
resumption of the political dialogue. The letters do not mention the return
of refugees and IDPs.

   79. On 26 January 2005, the Georgian Permanent Representative to
the United Nations in a letter to the President of the Security Council
wrote about “the recent developments in the conflict‑resolution process
in Abkhazia, Georgia” (United Nations doc. S/2005/45), including the
“self‑styled presidential elections” there, characterized as “illegal and ille-
gitimate” ; the fact that nearly 80 per cent of the current population has
Russian citizenship ; and the ignoring by the Russian Federation of the
basic visa régime. Despite those developments, the Ambassador contin-
ued, the central authorities of Georgia were ready to resume negotiations
with the Abkhaz side. The letter then referred to “refugees and IDPs —
victims of ethnic cleansing — who already for longer than a decade are
waiting for their basic right — the right to live at home — to materialize”.
Referring to abductions which allegedly occurred on “election” day, the
letter claimed that “these excesses were committed in front of CIS peace-
keepers, who did nothing to protect peaceful civilian people . . . I have to
state once more that the CIS peacekeeping force is rather far from being
impartial and is often backing Abkhaz separatist paramilitary structures.”
Two days later the Security Council at a meeting which had that letter
before it and which was attended by a Georgian representative adopted,
without any debate (United Nations doc. S/PV.5116), a resolution which
included the standard references to the CIS peacekeeping forces and the
Russian Federation’s role as a facilitator (resolution 1582 (2005)).

   80. On 11 October 2005 the Georgian Parliament in a resolution
“condemn[ed] the recent developments in the conflict regions existing on
the territory of Georgia (Abkhazia, and the former South Ossetian
Autonomous District)”. The resolution assessed as “extremely negative”
the activity and the fulfilment of the current mandate by the peacekeeping
forces in Abkhazia and the former South Ossetian Autonomous District
and it contemplated the cessation of those peacekeeping operations and
the denunciation of the relevant international agreements in certain cir-
cumstances starting from February 2006 in South Ossetia and July in
Abkhazia.
   81. This Parliamentary resolution was referred to in a letter of 27 Octo-
ber 2005 by the Permanent Representative of Georgia to the President of
the Security Council. That letter did not contain any endorsement of the
Parliamentary resolution. The Permanent Representative’s letter men-
tioned one positive development (a 4 August 2005 meeting on security

40

107 	     convention on racial discrimination (judgment)

guarantees) which, he said, had been marred by a large‑scale Abkhaz
military exercise in the zone of responsibility of the Russian Federation
peacekeeping forces. The letter also mentioned the banning of instruction
in the Georgian language in Gali schools — a claim which, in the Court’s
assessment, is not directed at the Russian Federation. It was impossible,
the letter continued, to avoid commenting on the behaviour of the
facilitator — the Russian Federation — especially when several alarming
 trends, which were listed, had taken place. Annexation was being car-
ried out against a small and friendly neighbouring country. The Perma-
nent Representative, after referring to the Parliamentary resolution, said
this :
        “It seems that the Russian‑led peacekeeping operation has, in fact,
     exhausted its potential and the only effective way is to have a full‑scale
     international, I would underline — truly international — United
     Nations‑led peacekeeping operation.
        The Georgian leadership is firmly committed to a peaceful settle-
     ment of the conflict on its territory, weighing ethnic inclusiveness and
     integration, safeguarding human rights and freedoms. Despite all of
     the above‑mentioned we still believe that there is no military solu-
     tion — on the contrary, we are confident that it is counter-productive.
     Our policy of proactive engagement has long‑term goals to get
     Abkhaz society out of isolation, to expose them to democratic values
     and beliefs, recognizing fundamental human rights of internally dis-
     placed persons and refugees, first of all the right to return to their
     homes, regardless of their ethnicity, to establish an environment of
     trust and mutual respect.” (United Nations doc. S/2005/678.)

The Court is unable to see in this letter any claim against the Russian
Federation by the Georgian Government of breaches of obligations under
CERD.
   82. On 9 November 2005 the Georgian Permanent Representative
transmitted the 11 October Parliamentary resolution to the United
Nations Secretary-General. He asked that the resolution be circulated as
a General Assembly document under agenda items concerning the pre-
vention of armed conflict (item 12) and the review of peacekeeping
(item 32), but made no reference to other items on that session’s agenda,
including racial discrimination (item 69) and displaced persons (item 39)
(United Nations doc. A/60/552).

   83. The official position of the Georgian Executive in this period was
further illustrated in comments made by the Georgian Prime Minister in
a December 2005 press conference, and which were subsequently circu-
lated at a meeting of the JCC. Here the Prime Minister described the
“extraordinarily constructive position of the Russian diplomacy in the
matter [of the peace process in South Ossetia]”, noted that “Russia is a

41

108 	     convention on racial discrimination (judgment)

guarantor of long‑term peace in the Caucasus” and stated his belief that
“the recent steps of Russia will bring positive momentum into the rela-
tions between the two countries”.

   84. On 26 January 2006, the Security Council held a private meeting
on the situation in Georgia. The Official Communiqué of the meeting
records only that a Georgian representative, the Special Envoy of the
President of Georgia, made a statement and that a representative of the
Russian Federation made a statement, without giving any indication of
the content of the statements (United Nations doc. S/PV.5358). Georgia
includes in its pleadings a “statement by . . . [the] Special Representa-
tive . . .”. That statement is very critical of various actions of the Abkhaz
side. The statement contains this passage about the role of the Russian
Federation :
         “One of the members of the Security Council, member of the Group
      of Friends and the facilitator of the peace process — namely the Rus-
      sian Federation —, suddenly has decided to disassociate itself from
      supporting the basic principle — principle of territorial integrity of
      Georgia within its internationally recognized borders . . . That is why
      for the first time in the history of Security Council deliberations we
      have no draft resolution prepared by the Group of Friends.

        Mr. President,
        This change of position of one of the prominent members of P5
     is not just a slight shift or correction. Renouncement of the principle
     of determining the status of Abkhazia within the State of Georgia
     does mean the following : support of the secessionism as a phenome-
     non ; endorsement of ethnic cleansing of more than 300,000 citizens
     of Georgia ; questioning the basic principle of the modern world
     architecture — the principle of territorial integrity and inviolability
     of internationally recognized borders.

       Mr. President,
       I am representing the people who were forcefully expelled from
     their homes and are not allowed to return. I am representing the
     people who count every day of their exile and who look with a hope
     to this Council for its work and resolutions. I am representing the
     community which follows very closely every move in the peace pro-
     cess in Abkhazia, Georgia.”
The Court observes that the reference to “ethnic cleansing” does not
include an allegation that the Russian Federation participated in, or faci-
litated, that action. After some delay, at the end of March 2006, the Secu-
rity Council, with a Georgian representative present and without debate
(United Nations doc. S/PV.5405), adopted resolution 1666 (2006) inclu-
ding standard paragraphs about the CIS peacekeeping forces and the role

42

109 	     convention on racial discrimination (judgment)

 of the Russian Federation as facilitator, as well as a reaffirmation of the
 territorial integrity of Georgia.
    85. On 15 February 2006, in a resolution forwarded to the Secretary‑
 General by the Georgian Permanent Representative, the Georgian
 Parliament in terms of its resolution of 11 October 2005 assessed
“extremely negatively” the fulfilment of the obligations by the peacekeep-
ing forces in the former autonomous district of South Ossetia and assessed
the actions of the Russian Federation as an ongoing attempt at annexa-
tion of this region of Georgia. It accordingly instructed the Government
 of Georgia to start the implementation of the provisions of that earlier
 resolution. Again, there is nothing in the record to show that the
 Georgian Government took those steps. As with the October 2005 Parlia-
mentary resolution (paragraph 82 above), the 16 February 2006 letter
of transmittal from the Georgian Permanent Representative to the
Secretary‑General requested that the letter and the February 2006 Parlia-
 mentary resolution be circulated as a General Assembly document
 under agenda items relating to armed conflict and peacekeeping, but not
 racial discrimination or displaced persons (United Nations doc. A/60/685).

   86. On 18 July 2006 the Georgian Parliament adopted a resolution in
terms of its resolutions of 11 October 2005 and 15 February 2006 about
both regions. It said that, unfortunately, no progress had been achieved
in terms of the settlement of the conflicts within the time frame defined by
those resolutions. It continued :
         “Instead of demilitarization, the drastic increase of military poten-
     tial of those armed forces under subordination of de facto authorities
     of Abkhazia and the former Autonomous District of South Ossetia,
     drastic activation of terrorist and subversive actions, complete col-
     lapse of security guarantees for peaceful population, permanent
     attempts to legalize the results of ethnic cleansing the fact of which
     had been repeatedly recognized by the international community,
     massive violation of fundamental human rights and ever‑increasing
      international criminal threats so characteristic of uncontrolled terri-
      tories — this is a reality brought about as a result of peacekeeping
      operations.”

The resolution then said that the rejection by the Russian Federation of a
peace plan “can be assessed as support for separatists and as a permanent
attempt to annex Georgia’s territory”. The Parliament resolved to entrust
the Government of Georgia with the task of launching necessary proce-
dures to immediately suspend the so‑called peacekeeping operations and
to have the armed forces of the Russian Federation withdrawn.

  87. In this case the authorities of the Russian Federation were plainly

43

110 	         convention on racial discrimination (judgment)

aware of the Georgian Parliament’s action since on 19 July 2006, the
day after it was adopted, the Permanent Representative of the Russian
Federation to the United Nations transmitted to the Secretary‑
General a statement by their Foreign Ministry critical of the resolution.
The statement includes the following passages :

         “The Russian Federation regards the decision as a provocative
     step designed to aggravate tension, destroy the existing format of
     negotiations and shatter the framework of legal agreements for the
     peaceful settlement of the Georgian‑Abkhaz and Georgian‑Ossetian
     conflicts. The accusations that the decision makes against the Rus-
     sian Federation constitute a disgraceful attempt to shift the blame
     to others.
     �����������������������������������������������������������������������������������������������������������������
         It should not be forgotten that the format of the negotiation pro-
     cess, which, besides the Russian Federation, involves the United
     Nations, the Organization for Security and Co-operation in Europe,
     the Commonwealth of Independent States and the member States of
     the Group of Friends of the Secretary‑General on Georgia, was
     agreed upon by all parties to the conflicts. The irresponsible actions
     of Tbilisi are capable of ruling out any possibility of peaceful settle-
     ment of the conflicts.
         The Russian Federation will take such measures as are necessary
     to ensure compliance with existing international agreements, prevent
     the destabilization of the situation in the region and protect the rights
     and interests of Russian citizens living there.” (United Nations
     doc. S/2006/555.)
  88. The Permanent Representative of Georgia transmitted the text of
the 18 July 2006 resolution of the Georgian Parliament to the Secretary‑
General on 24 July 2006, again asking for it to be circulated to the
General Assembly under the same agenda items as for the Parliamentary
resolutions of October 2005 and February 2006 (see paragraphs 82 and
85 above) (United Nations doc. A/60/954). According to the record, the
Georgian Government took no action in terms of the resolution.

   89. The Court recalls Georgia’s emphasis on those Parliamentary reso-
lutions which were transmitted to the United Nations (paragraph 36
above), and sees it as significant that on all those occasions when the
Georgian Government transmitted Parliamentary resolutions to the
Secretary‑General to be circulated as official United Nations documents,
 that Government did not refer to those agenda items which relate to the
 subject‑matter of CERD, such as racial discrimination, or, as the case
 may be, refugees and IDPs, or, indeed, human rights instruments more
 generally.

44

111 	     convention on racial discrimination (judgment)

   90. On 11 August and 4 September 2006, the Georgian Permanent
 epresentative transmitted to the Secretary‑General and President of the
R
Security Council Foreign Ministry statements about abuses of human
rights in Abkhazia (United Nations docs. A/60/976-S/2006/638, S/2006/709).
The primary allegations were against “the Abkhazian side”, but it was also
said that the Russian Federation (CIS) peacekeepers continued to “[turn] a
blind eye to gross violation of . . . human rights”. The Foreign Ministry
stated that the “existing situation . . . leads us to register once more the
incapability (or the absence of will) of the CIS peacekeeping forces to duly
perform their functions, which points yet again to the necessity of modify-
ing the existing format of peace operations . . .”. According to the 4 Sep-
tember statement of the Ministry, the “Russian peacekeepers cannot . . .
ensure the protection of the safety, dignity and human rights of the peace-
ful population, including internally displaced persons and refugees, as
prescribed by [four] Security Council resolutions”. This fact “provide[d]
an added proof of the correctness of the Georgian Parliament’s decision
to withdraw Russian peacekeepers . . .”. The 11 August statement made
specific reference to three conventions but not to CERD and neither of
the two documents made direct claims against the Russian Federation of
racial discrimination.

  91. In October the Security Council, with no reference to the two doc-
uments, adopted resolution 1716 (2006) with standard provisions about
the Russian Federation as a facilitator and the role of the CIS peacekeep-
ing forces. Again, the Georgian representative who was present made no
comment regarding the paragraphs in the draft resolution relating to the
CIS peacekeepers and the role of the Russian Federation as facilitator,
and the resolution was adopted without debate (United Nations doc. S/
PV.5549). In view of these considerations, the Court does not consider
that the Foreign Ministry statements have any legal significance for the
purposes of the present case.

 92. On 3 October 2006 the Georgian Permanent Representative to the
United Nations in a statement at a press conference said this :

       “It is crystal clear that the Russian peacekeeping force is not an
     impartial, nor international, contingent. It failed to carry out the main
     responsibilities spelled out in its mandate — to create a favourable
     security environment for the return of ethnically cleansed hundreds
     of thousands of Georgian citizens. It became the force that works to
     artificially alienate the sides from one another.”

Georgia in its submissions cites this statement as raising the dispute
again — the Court presumes that this means the dispute about racial dis-

45

112 	     convention on racial discrimination (judgment)

crimination by the Russian Federation — but the Permanent Representa-
tive’s next sentence was this :

        “The Russian political leader’s statements and actions once again
     make clear that what we are dealing with is not a fundamentally
     ethnic conflict, but rather one stemming from Russia’s territorial
      ambitions against my country.”
Particularly taking into account this clarification by the Permanent
Representative, the Court concludes that it cannot give any legal signifi-
 cance to the statement made at the press conference for the purposes of
 the present case.
    93. On 14 November 2006 President Saakashvili, in an address to the
 European Parliament, which as an organ of the European Union contains
 no representatives from either Georgia or the Russian Federation, said
 that “over 300,000 Georgians were ethnically cleansed from Abkhazia in
 the early 1990s”. President Saakashvili noted that “the Russian adminis-
 tration” had been accused of responsibility for these earlier events. His
 only reference, in a wide‑ranging address, to disputes was in the context
 of Georgia’s “separatist problems” : “[o]ur disputes continue because they
 are based on recidivist territorial claims . . .”. President Saakashvili’s
statement demonstrates that the primary dispute concerned territorial
claims and the references to ethnic cleansing by the Russian Federation
were with respect to events which took place in the early 1990s. These
events were not current at the time of the President’s address, and
pre‑dated Georgia’s accession to CERD. As such the Court does not see
President Saakashvili’s statement as evidence of a dispute between the
Parties on matters under CERD. The Court takes the same view of the
press statement made by the Georgian Foreign Ministry on 22 Decem-
 ber 2006.

  94. The President of Georgia in his address of 26 September 2007 to
the General Assembly referred to the majority of residents of the two
regions as “prisoners of the morally repugnant politics of ethnic cleans-
ing, division, violence and indifference”. He continued :

        “The story of Abkhazia, where up to 500,000 men, women, and
     children were forced to flee in the 1990s, is of particular relevance —
     one of the more abhorrent, horrible and yet forgotten ethnic cleans-
     ings of the twentieth century. In the time since Russian peacekeepers
     were deployed there, more than 2,000 Georgians have perished and a
     climate of fear has persisted.” (United Nations doc. A/62/PV.7.)

Near the end of his address, he stated that “[t]he only obstacle to the
integration of South Ossetia [into Georgia] is a separatist regime that

46

113 	     convention on racial discrimination (judgment)

basically consists of elements from security services from neighbouring
Russia that have no historical, ethnic or cultural links to the territory”. In
respect of Abkhazia he had earlier said that “these disputes are no longer
about ethnic grievances”.
   95. In September and October 2007, March and April 2008, the Geor-
gian Permanent Representative to the United Nations sent statements by
the Georgian Ministries of Foreign Affairs and Internal Affairs to the
Secretary‑General and President of the Security Council (United Nations
docs. S/2007/535 ; S/2007/589 ; A/62/765-S/2008/197 ; A/62/810). The first,
third and fourth are concerned with the status of the regions, the actions
of separatists, and military activities. None make any reference to racial
discrimination or ethnic cleansing (except for the last) or to the Russian
Federation’s responsibility for such actions. The last does refer to ethnic
cleansing but only in the context of the Russian Federation “planning
to recognize” the documents of authorities which were created through
ethnic cleansing. Its call on the Russian Federation to engage more
actively in the safe return of IDPs cannot, in the Court’s opinion, be
understood as a claim against the Russian Federation regarding com
pliance with its obligations under CERD, for instance a claim of imped-
ing return of IDPs on racial grounds. Two other features of that document
might be noted : first, it alleges breaches by the Russian Federation of
three named conventions, but not CERD ; secondly, when Georgia trans-
mitted this statement to the Secretary‑General on 17 April 2008, it
requested that it be circulated as a General Assembly document under
an agenda item relating to protracted conflicts in the region and the
implications for international peace, security and development (United
Nations doc. A/62/810).

  The second statement contains this passage :
        “The Georgian side expresses its extreme concern about this fact
     [the identity of a militant who had been killed], proving that separatist
     illegitimate armed forces are constantly receiving support from a
     party which is supposed to be a facilitator of the conflict resolution
     process. Regretfully, we have been witnessing such a pattern of behav-
     iour for 14 years. At the same time high‑ranking Russian officials
     consider [sic] ordinary support and training to so‑called anti‑terrorist
     units, which in reality by nature are illegitimate military formations
     of the de facto Abkhaz regime, and are responsible for ethnic cleans-
     ing that took place in Abkhazia, Georgia.
        The Georgian Government once again reminds all States of para-
     graph 8 of Security Council resolution 876 (1993), in which the Coun-
     cil called on all States to prevent the provision from their territories
     or by persons under their jurisdiction of all assistance, other than
     humanitarian assistance.” (United Nations doc. S/2007/589.)

47

114 	     convention on racial discrimination (judgment)

Again the reference to ethnic cleansing is not stated as a claim against the
Russian Federation regarding compliance with its obligations under
CERD.
   96. Georgia referred the Court to six further statements made between
January 2006 and September 2007 by its Foreign Ministry and by its
Ministry for Conflict Resolution Issues. The complaints against the Rus-
sian Federation are limited to the Russian peacekeepers’ “culpable inac-
tion”, “criminal inaction” and “even encouragement” of the actions of
the separatist authorities, and are not related to racial discrimination.
Accordingly, the Court gives the statements no legal significance for the
purposes of the present case. (See similarly the statement of 22 Novem-
ber 2007.)

   97. On 19 April 2008 the Georgian Foreign Ministry in a press state-
ment referred to the “de facto annexation of Georgia’s integral parts . . .
and neglect of human rights of an absolute majority of the regions’ popu-
lation — victims of ethnic cleansing”. The statement is primarily about
the status of the two regions and Russian Federation policies and prac-
tices relevant to those regions and makes no claim against the Russian
Federation about racial discrimination.

   98. On 21 April 2008 the Georgian President made a “special state-
ment” about “aggressive steps taken” by the Russian Air Force. The only
reference to racial discrimination was to past events which occurred
before CERD entered into force between the Parties and related to the
1992‑1993 Russian Federation bombing : “[e]thnic cleansing . . . took
place [at] that time and [a] new aggressive regime was established”.

   99. On 12 May 2008 the President of Georgia addressed representa-
tives of five European Union member States who were visiting Georgia,
about what he referred to as the peace plan relating to Abkhazia, avoid-
ing conflict, securing territorial integrity and return of refugees, alleged
breaches of norms of international conduct by the Russian Federation,
relating to incursions into Georgian airspace, illegal movement of Rus-
sian Federation peacekeeping forces, the status of the regions and the
issuing by the Russian Federation of passports. The European Union, he
said, must state that it will never recognize any kind of breakaway of
Georgian territory and will never recognize the results of ethnic cleansing.
Again there is no claim against the Russian Federation of breaches of its
obligations under CERD.

   100. The final exchange between Georgia and the Russian Federation
before armed conflict broke out in August 2008 consists of a letter of
24 June 2008 from President Saakashvili to President Medvedev and
President Medvedev’s reply of 1 July. The Georgian President offered a
number of proposals for the President of the Russian Federation to con-
sider “directed at the substantial decrease of tension, restoration of trust

48

115 	         convention on racial discrimination (judgment)

and assistance in peaceful settlement of the conflict in Abkhazia, Geor-
gia”. Two of the proposals refer to refugees and IDPs.
         “Free Economic Zone will be created in the territory of Gali and
     Ochamchire Districts of Abkhazia, where the population is practically
     absent at present. Mixed Georgian‑Abkhazian administrations and
     mixed Georgian‑Abkhazian law enforcement organs will be created
     in both districts. Safe and dignified return of refugees and IDPs to
     Gali and Ochamchire Districts will be organized. The Georgian side
     undertakes to provide social welfare fully for the population of these
     districts.
     �����������������������������������������������������������������������������������������������������������������
         The parties to the conflict could also conclude a separate agreement
     about non-use of force and return of IDPs and refugees to the entire
     territory of Abkhazia, Georgia.”
An additional proposal was for the continuation of the peacekeeping
operation of the CIS with a reviewed mandate. The Georgian President
proposed that the Russian Federation be one of the guarantors of the
agreements which he was to negotiate in line with these proposals.
   101. The President of the Russian Federation in his reply said that he
had attentively reviewed the proposals on the problems of regulation of
the Georgian‑Abkhazian conflict, noting that “[m]ost of the elements can
be relevant at different stages of regulation” and that “[y]our principal
partner must be Abkhazia” which would presume a full‑scale negotiation
process. Having stated that “[u]nfortunately, the sides [to the conflict] feel
deep mutual mistrust as of today”, the President of the Russian Federa-
tion continued :

       “In this situation, frankly speaking it is difficult to imagine, for
     example, the creation of joint Georgian‑Abkhaz administration or
     law‑enforcement organs in any district of Abkhazia. It is also appar-
     ently untimely to put the question of the return of refugees in such a
     categorical manner. Abkhazs perceive this as a threat to their national
     survival in the current escalated situation and we have to understand
     them.
       Because of this, I propose to concentrate on the initial and most
     important for today — the real measures directed towards decreasing
     the tensions and restoration of trust that will allow resuming the pro-
     cess of Georgian‑Abkhaz regulation which was ceased in July 2006.”

He then went on to address other matters in the Georgian list, and con-
cluded with reference to two of them in this way :
       “We are also ready to discuss your proposal regarding the creation
     of a Russian‑Georgian intergovernmental commission on the issues
     of economic rehabilitation of Abkhazia. As far as I understand that

49

116 	     convention on racial discrimination (judgment)

     would mean the cancellation of the sanction introduced in Janu-
     ary 1996 on the basis of the Decision of the CIS Heads of States on
     the Sanctions against Abkhazia. By the way, in terms of directions,
     this would have been consonant with the measures taken by the Rus-
     sian side within the framework of the April Order of the President of
     the Russian Federation.
        And of course we will welcome Georgia to join the process of
     preparation for the 2014 Olympic Games in Sochi.
        In sum, quite a specific and positive agenda of our joint actions is
     emerging.”
  102. Georgia sees the response on the issue of the return of IDPs as “a
categorical rejection” of their return, and evidence of a legal dispute
between Georgia and the Russian Federation “concerning the return of
ethnic Georgians to the regions of Georgia from which they had been
expelled because of their ethnicity”.

   103. As the Parties have said, this exchange is important, given its tim-
ing, the position and responsibility of the authors of the letters and the
contents of the letters. The Court finds that the letters do not evidence a
dispute between the Parties about the obligations of the Russian Federa-
tion in respect of the impeding of the return of refugees and IDPs for
reasons of racial discrimination : Georgia is approaching the Russian
Federation as a facilitator, as a potential guarantor and in terms of its
role in the CIS peacekeeping forces. The Abkhaz side (the other “party to
the conflict”) is the party which under the proposals would, with Georgia,
have the role of facilitating the return of the IDPs and refugees. No pro-
posal was made by Georgia to the Russian Federation for the latter to
take action with respect to the return of IDPs and refugees.

   104. The final document on which Georgia relies, before those issued
at the time of the armed conflict in August 2008, is a press release of its
Foreign Ministry issued on 17 July 2008. In answer to a question relating
to a statement by the Foreign Minister of the Russian Federation about
the signing of a non‑use of force agreement between Georgia and Abkha-
zia and the return of refugees, the Ministry said that the statement was
completely at variance with the mandate of the CIS collective peacekeep-
ing forces : they were to create conditions for the unconditional and digni-
fied return of refugees and IDPs. Moscow’s true design, it said, was :

     “to legalize results of the ethnic cleansing instigated by itself and con-
     ducted through Russian citizens in order to make easier annexation
     of the integral part of Georgia’s internationally recognized territory,
     which the Russian Federation tries to achieve via military interven-
     tion in Abkhazia, Georgia. Moscow’s insistence on the signing of

50

117 	     convention on racial discrimination (judgment)

     another treaty on the non‑use of force serves the same immoral goal
     as well.”
The Court considers that the reference to ethnic cleansing may again be
read as relating to the events of the early 1990s. This reference is to be
understood in the context of the principal theme of the press release, that
is, the concern of Georgia in relation to the status of Abkhazia and the
territorial integrity of Georgia. In light of the record it remains unclear
whether the press release came to the attention of the Russian Federation.
In any case, the press release raised the issue of the proper fulfilment of
the mandate of the CIS peacekeeping force, and not the Russian Federa-
tion’s compliance with its obligations under CERD.

   105. The Court, on the basis of its review of the documents and state-
ments issued by the Parties and others between 1999 and July 2008 con-
cludes, for the reasons given in relation to each of them, that no legal
dispute arose between Georgia and the Russian Federation during that
period with respect to the Russian Federation’s compliance with its obli-
gations under CERD.

                              6. August 2008
   106. Armed hostilities began in South Ossetia during the night of 7 to
8 August 2008. According to the Report of the Independent International
Fact‑Finding Mission on the Conflict in Georgia established by the Coun-
cil of the European Union, on that night :
     “a sustained Georgian artillery attack struck the town of Tskhinvali.
     Other movements of the Georgian armed forces targeting Tskhinvali
     and the surrounding areas were under way, and soon the fighting
     involved Russian, South Ossetian and Abkhaz military units and
     armed elements. It did not take long, however, before the Georgian
     advance into South Ossetia was stopped. In a counter‑movement,
     Russian armed forces, covered by air strikes and by elements of its
     Black Sea fleet, penetrated deep into Georgia, cutting across the coun-
     try’s main east‑west road, reaching the port of Poti and stopping short
     of Georgia’s capital city, Tbilisi. The confrontation developed into a
     combined inter‑state and intra‑state conflict, opposing Georgian and
     Russian forces at one level of confrontation as well as South Ossetians
     together with Abkhaz fighters and the Georgians at another.” (Report,
     Vol. 1, para. 2.)

  107. The conflict continued for five days. On 12 August the President
of the French Republic (which held the rotating Presidency of the Euro-
pean Union) took the initiative and, following discussions with the Presi-
dent of the Russian Federation, proposed six principles “to bring about a
permanent ceasefire in the Ossetian‑Georgian zone of the conflict”. Fol-

51

118 	     convention on racial discrimination (judgment)

lowing negotiations, the plan was signed by Abkhazia and South Ossetia
on 14 August, by Georgia on 15 August, and by the Russian Federation
on 16 August 2008. The agreed principles were :
     (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 Rus-
     sian armed forces to the line where they were stationed prior to the
     beginning of hostilities ; pending the establishment of international
     mechanisms, the Russian peacekeeping forces will take additional
     security measures ; (6) an international debate on ways to ensure secu-
     rity and stability in the region.
    108. The first statement cited by Georgia from this period is its Presi-
dential Decree on the Declaration of a State of War and Full Scale Mobi-
lization of 9 August 2008. The Decree begins by referring to “[s]eparatists
[who] are engaged in massive violation of human rights and freedoms,
armed assaults on peaceful population and violence”. The Russian
Federation armed attack, it continues, provided “full support of the sepa-
 ratist forces”. The Russian Federation “military aggression” required the
 exercise of the right of self‑defence as provided in Article 51 of the Char-
 ter and other documents. The Court observes that this Decree does not
 allege that the Russian Federation was in breach of its obligations relat-
 ing to the elimination of racial discrimination. Its concern is with the
 allegedly unlawful use of armed force.

   109. In a press conference with foreign journalists held on 9 August
2008, President Saakashvili made a statement which began with allega-
tions about “Russia . . . launch[ing] a full scale military invasion of
Georgia”. The President said that he also had to indicate :

     “that Russian troops, Russian tanks that moved in, into South Osse-
     tia on their way expelled the whole ethnically Georgian population of
     South Ossetia. This morning they’ve committed the ethnic cleansing
     in all areas they control in South Ossetia, they have expelled ethnic
     Georgians living there. Right now they are trying to set up the ethnic
     cleansing of ethnic Georgians from upper Abkhazia — Kodori
     Gorge.”
   On the following day, 10 August 2008, the Georgian representative, at
a meeting of the Security Council called at Georgia’s request, in his initial
statement referred to “the process of exterminating the Georgian popula-
tion”, but the first explicit reference to racial discrimination came in the
initial statement by the representative of the Russian Federation :

      “What legal terms can be used to describe what has been done by the
     Georgian leadership? Can we use ‘ethnic cleansing’, for example, when,

52

119 	     convention on racial discrimination (judgment)

     over a number of days, nearly 30,000 of the 120,000 people of South
     Ossetia have become refugees who have fled to Russia : more than a
     quarter of the population. They went across the border from South
     Ossetia to the North at great risk to their lives. Is that ethnic cleansing
     or is it not?” (United Nations doc. S/PV.5953, 10 August 2008, p. 8.)
The Georgian representative responded that “[w]e cannot [turn a blind
eye] now because that is exactly Russia’s intention : to erase Georgian
statehood and to exterminate the Georgian people” (ibid., p. 16). The
representative of the Russian Federation in the next statement in the
 debate countered that “the intention of the Russian Federation in this
 case is to ensure that the people of South Ossetia and Abkhazia not
 fear for their lives or for their identity” (United Nations doc. S/PV.5953,
 10 August 2008, p. 17). The Court observes that civilians in regions
 directly affected by ongoing military conflict will in many cases try to
 flee — in this case Georgians to other areas of Georgia and Ossetians to
 the Russian Federation.

   110. On 11 August 2008 the Georgian Ministry of Foreign Affairs
released a statement to the effect that :
        “According to the reliable information held by the Ministry of
      oreign Affairs of Georgia, Russian servicemen and separatists carry
     F
     out mass arrests of peaceful civilians of Georgian origin still remain-
     ing on the territory of the Tskhinvali region and subsequently concen
     trate them on the territory of the village of Kurta.
        Georgia appeals to the International Red Cross and other human-
     itarian and international organizations and the international commu-
     nity as a whole to immediately take decisive and effective measures
     for the evacuation of this population from the conflict zone.”

   111. On that same day, 11 August, President Saakashvili in a CNN
interview stated the following :
         “And what was left of upper Abkhazia has been bitterly attacked
     for the last two days. And right now, as we speak, there is an
     ethnic cleansing of the whole ethnic Georgian population of Abkhazia
      taking place by Russian troops. I directly accuse Russia of ethnic
      cleansing there. And it’s happening now.
         The other thing is that, if you go down to South Ossetia, where also
      being held from half of the South Ossetia, which we always con-
     trolled, they fully expelled a couple of days ago the whole Georgian
     population. Russian troops have moved first to occupy the town of
     Gori, which is around 40 kilometres from Tskhinvali, the original
     capital of South Ossetia.”
  112. On the following day, 12 August 2008, the Foreign Minister of
the Russian Federation in a Joint Press Conference with the Minister for

53

120 	     convention on racial discrimination (judgment)

Foreign Affairs of Finland in his capacity as Chairman‑in‑Office of the
OSCE, said the following :
        “A couple of days after [US Secretary of State] Rice had urgently
     asked me not to use such expressions, Mr. Saakashvili . . . claimed
     hysterically that the Russian side wanted to annex the whole of
     Georgia and, in general, he did not feel shy of using the term ethnic
     cleansings, although, true, it was Russia that he accused of carrying
     out those ethnic cleansings.”
   113. The Court observes that while the Georgian claims of 9 to
12 August 2008 were primarily claims about the allegedly unlawful use of
force, they also expressly referred to alleged ethnic cleansing by Russian
forces. These claims were made against the Russian Federation directly
and not against one or other of the parties to the earlier conflicts, and
were rejected by the Russian Federation. The Court concludes that the
exchanges between the Georgian and Russian representatives in the Secu-
rity Council on 10 August 2008, the claims made by the Georgian Presi-
dent on 9 and 11 August and the response on 12 August by the Russian
Foreign Minister establish that by that day, the day on which Georgia
submitted its Application, there was a dispute between Georgia and the
Russian Federation about the latter’s compliance with its obligations
under CERD as invoked by Georgia in this case.

                              7. Conclusion
  114. The first preliminary objection of the Russian Federation is
accordingly dismissed.

     III. Second Preliminary Objection — Procedural Conditions
                        in Article 22 of CERD

                              1. Introduction
   115. The Court will now turn to consider the Russian Federation’s
second preliminary objection.
   116. The essence of this objection is that Article 22 of CERD, the sole
 jurisdictional basis invoked by Georgia to found the Court’s jurisdiction,
 contains two procedural preconditions, namely, negotiations and referral
 to procedures expressly provided for in CERD that must both be fulfilled
 before recourse to the Court is had. The Russian Federation contends
 that, in the present instance, neither precondition was met.

  117. Article 22 reads :
       “Any dispute between two or more States Parties with respect to
     the interpretation or application of this Convention, which is not set-

54

121 	      convention on racial discrimination (judgment)

     tled 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.”

   118. There is much in this compromissory clause on which the two
Parties hold different interpretations. First they disagree on the meaning
of the phrase “[a]ny dispute . . . which is not settled by negotiation or by
the procedures expressly provided for”. The Russian Federation maintains
that the phrase imposes a precondition to the jurisdiction of the Court, in
that it requires that an attempt must have been made to resolve the dispute
by the means specified in Article 22 and that that attempt must have failed
before the dispute can be referred to the Court. Georgia on the other hand
interprets the phrase as imposing no affirmative obligation for the Parties
to have attempted to resolve the dispute through negotiation or through
the procedures established by CERD. According to Georgia, all that is
required is that, as a matter of fact, the dispute has not been so resolved.
   119. Secondly, the two Parties also offer different interpretations of the
co‑ordinate conjunction “or” in the phrase “[a]ny dispute . . . which is not
settled by negotiation or by the procedures expressly provided for”. The
Russian Federation maintains that the two preconditions are cumulative,
and that fulfilment of only one or the other would not therefore be suffi-
cient. Georgia takes the opposite view arguing, as a matter of textual
exegesis, that the two preconditions — assuming them to be so — are
alternative.

    120. Thirdly, assuming that negotiations are a precondition for the sei-
sin of the Court, the two Parties disagree as to what constitutes negotia-
tions including the extent to which they must be pursued before it can be
concluded that the precondition under Article 22 of CERD has been ful-
filled. Additionally, they disagree as to the format of negotiations and the
extent to which they should refer to the substantive obligations under
CERD.

  121. The Court will begin by presenting the arguments of the Parties
regarding the above‑mentioned issues concerning the interpretation of
Article 22 of CERD. It will then give its interpretation of the Article
and determine whether the second preliminary objection of the Russian
Federation is well based in law and in fact.

     2. Whether Article 22 of CERD Establishes Procedural Conditions
                         for the Seisin of the Court

  122. The Parties deploy a number of arguments in support of their
respective interpretations of Article 22 of CERD, relating to : (a) the
ordinary meaning of its terms in their context and in light of the object

55

122 	     convention on racial discrimination (judgment)

and purpose of the Convention, invoking, in support of their respective
positions, the Court’s jurisprudence dealing with compromissory clauses
of a similar nature ; and (b) the travaux préparatoires of CERD.

(a) Ordinary meaning of Article 22 of CERD
   123. Starting with the ordinary meaning of Article 22, the Russian
Federation argues that the present tense in the English expression “which
is not settled” is not used merely to describe a state of fact but requires
that a previous attempt to settle the dispute has been made bona fide.
According to the Russian Federation, this is all the more evident in the
French version (“qui n’aura pas été réglé”), where the future perfect tense
signifies that a previous action (i.e., an attempt to settle the dispute) must
have taken place before the next stage can be embarked upon (i.e., refer-
ral to the Court). This is, in its view, the only possible common sense
interpretation of Article 22 confirmed by the textual analysis of other
authentic texts of CERD.
   124. The Russian Federation further invokes the principle of effective-
ness of interpretation in order to reject Georgia’s interpretation of the
phrase “which is not settled” in Article 22 as a mere observation of facts.
It points out that such interpretation not only runs against the ordinary
meaning of this provision, but also deprives it of any effect : it renders it
tautological and meaningless since it would merely state the obvious and
leave a key phrase of the provision without appropriate effet utile. To
underline this argument, the Russian Federation asks rhetorically what
would be the purpose of introducing the phrase “by negotiation or by the
procedures expressly provided for in this Convention” in Article 22 if no
logical and legal consequence is to be derived from it? In its view, this
phrase must add something to the word “dispute” : the only disputes
which fall within the ambit of the clause are those that cannot be settled
by the means indicated therein. Consequently, according to the Russian
Federation, the right to have recourse to the Court, and reciprocally the
competence of the Court to entertain the claim, depend on attempts to
satisfy this condition and cannot arise unless and until such attempts
have been made and have failed.

   125. In addition, the Russian Federation relies on the Permanent
Court’s dictum in the Mavrommatis Palestine Concessions case : “before a
dispute can be made the subject of an action at law, its subject matter
should have been clearly defined by means of diplomatic negotiations”
(Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 15). Taking this posi-
tion into account, it contends that the interpretation alleged by Georgia
would be tantamount to imposing on the Court the heavy burden of deter-
mining a dispute the contours of which the Parties have not determined.
                                      *

56

123 	     convention on racial discrimination (judgment)

   126. Georgia adopts a different interpretation. Referring to the ordi-
nary meaning of the words in their context and in light of the object and
purpose of CERD, it maintains that Article 22 does not establish any
express obligation to negotiate nor does it establish any obligation to
have recourse to the procedures provided for in Articles 11 and 12 of
CERD. It points out that none of these conditions or pre‑conditions are
to be found in the actual text of Article 22 ; more specifically, Article 22
says nothing — expressly or implicitly — about any general duty to
attempt to settle the dispute before seising the Court.
   127. Georgia seeks support for this interpretation of Article 22 in the
Court’s Order of 15 October 2008 in the present case, where the Court
held that :
     “the phrase ‘any dispute . . . which is not settled by negotiation or by
     the procedure expressly provided for in this Convention’ does not, in
     its plain meaning, suggest that formal negotiations in the framework
     of the Convention or recourse to the procedure referred to in Arti-
     cle 22 thereof constitute preconditions to be fulfilled before the seisin
     of the Court” (Application of the International Convention on the Elim-
     ination of All Forms of Racial Discrimination (Georgia v. Russian Fed-
     eration), Provisional Measures, Order of 15 October 2008, I.C.J. Reports
     2008, p. 388, para. 114).

Suggesting that what was “a plain meaning” then must be a “plain mean-
ing” now, Georgia contends that the text of Article 22 does not support
the Russian Federation’s position that it contains preconditions to the
seisin of the Court.
   128. Georgia further maintains that the phrase “[a]ny dispute . . .
which is not settled” is merely a statement of fact. This assertion is but-
tressed by the fact that the drafters of CERD refrained from using any
express language of priority or the phrase “cannot be settled” (as has
been done in many other conventions), which in Georgia’s view clearly
means something more than the phrase “is not settled”. It maintains that
this was a deliberate choice of the drafters of CERD : if they had intended
to include the conditions that the Russian Federation now reads into the
text they would have done so. Consequently, according to Georgia, the
ordinary meaning of the terms of Article 22 of CERD can only be inter-
preted as expressing “an intention of the drafters” not to impose any pre-
conditions to the seisin of the Court.

                                    *   *
  129. Before providing its interpretation of Article 22 of CERD, the
Court wishes, as a preliminary matter, to make three observations.
  First, the Court recalls that in its Order of 15 October 2008 it stated
that “the phrase ‘any dispute . . . which is not settled by negotiation . . .’

57

124 	     convention on racial discrimination (judgment)

does not, in its plain meaning, suggest that formal negotiations in the
framework of the Convention . . . constitute preconditions to be fulfilled
before the seisin of the Court” (I.C.J. Reports 2008, p. 388, para. 114).
However, the Court also observed that “Article 22 does suggest that some
attempt should have been made by the Claimant Party to initiate, with the
Respondent Party, discussions on issues that would fall under CERD”
(ibid.).
   The Court further recalls that, in the same Order, it also indicated that
this provisional conclusion is without prejudice to the Court’s definitive
decision on the question of whether it has jurisdiction to deal with the
merits of the case, which is to be addressed after consideration of the
written and oral pleadings of both Parties. It stated that :
     “the decision given in the present proceedings in no way prejudges
     the question of the jurisdiction of the Court to deal with the merits
     of the case or any questions relating to the admissibility of the Appli-
     cation, or relating to the merits themselves” (ibid., para. 148 ; see also
     Anglo‑Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objec-
     tion, Judgment, I.C.J. Reports 1952, pp. 102‑103 ; Armed Activities on
     the Territory of the Congo (New Application : 2002) (Democratic
     Republic of the Congo v. Rwanda), Provisional Measures, Order of
     10 July 2002, I.C.J. Reports 2002, p. 249, para. 90).
   130. Secondly, the Court is called upon to determine whether a State
must resort to certain procedures before seising the Court. In this context,
it notes that the terms “condition”, “precondition”, “prior condition”,
“condition precedent” are sometimes used as synonyms and sometimes as
different from each other. There is in essence no difference between those
expressions save for the fact that, when unqualified, the term “condition”
may encompass, in addition to prior conditions, other conditions to be
fulfilled concurrently with or subsequent to an event. To the extent that
the procedural requirements of Article 22 may be conditions, they must
be conditions precedent to the seisin of the Court even when the term is
not qualified by a temporal element.
   131. Thirdly, it is not unusual in compromissory clauses conferring
jurisdiction on the Court and other international jurisdictions to refer to
resort to negotiations. Such resort fulfils three distinct functions.

   In the first place, it gives notice to the respondent State that a dispute
exists and delimits the scope of the dispute and its subject‑matter. The
Permanent Court of International Justice was aware of this when it stated
in the Mavrommatis case that “before a dispute can be made the subject
of an action in law, its subject‑matter should have been clearly defined by
means of diplomatic negotiations” (Mavrommatis Palestine Concessions,
Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 15).
   In the second place, it encourages the parties to attempt to settle their
dispute by mutual agreement, thus avoiding recourse to binding third‑party
adjudication.

58

125 	     convention on racial discrimination (judgment)

   In the third place, prior resort to negotiations or other methods of
peaceful dispute settlement performs an important function in indicating
the limit of consent given by States. The Court referred to this aspect
reflecting the fundamental principle of consent in the Armed Activities
case in the following terms :
        “[The Court’s] jurisdiction is based on the consent of the parties
     and is confined to the extent accepted by them . . . When that consent
     is expressed in a compromissory clause in an international agreement,
     any conditions to which such consent is subject must be regarded as
     constituting the limits thereon.” (Armed Activities on the Territory of
     the Congo (New Application : 2002) (Democratic Republic of the
     Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
     I.C.J. Reports 2006, p. 39, para. 88 ; emphasis added.)

                                     *
   132. The Court will now proceed to examine the reference in Article 22
of CERD to “negotiation or [to] the procedures expressly provided for”
in CERD, with a view to ascertaining whether they constitute precondi-
tions to be met before the seisin of the Court.
   133. Leaving aside the question of whether the two modes of peaceful
resolution are alternative or cumulative, the Court notes that Article 22
of CERD qualifies the right to submit “a dispute” to the jurisdiction of
the Court by the words “which is not settled” by the means of peaceful
resolution specified therein. Those words must be given effect.

  In the Free Zones of Upper Savoy and the District of Gex case, the Per-
manent Court of International Justice had occasion to apply the
well‑established principle in treaty interpretation that words ought to be
given appropriate effect. It stated that :
     “in case of doubt the clauses of a special agreement by which a dispute
     is referred to the Court, must, if it does not involve doing violence to
     their terms, be construed in a manner enabling the clauses themselves
     to have appropriate effects” (Free Zones of Upper Savoy and the Dis-
     trict of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22,
     p. 13).
The International Court of Justice also emphasized the importance of the
same principle in the Corfu Channel case, where it said :
       “It would indeed be incompatible with the generally accepted
     rules of interpretation to admit that a provision of this sort occurring
     in a special agreement should be devoid of purport or effect.”
     (Corfu Channel (United Kingdom v. Albania), Merits, Judgment,
     I.C.J. Reports 1949, p. 24 ; see also Territorial Dispute (Libyan Arab
     Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51.)

59

126 	     convention on racial discrimination (judgment)

By interpreting Article 22 of CERD to mean, as Georgia contends, that
all that is needed is that, as a matter of fact, the dispute had not been
resolved (through negotiations or through the procedures established by
CERD), a key phrase of this provision would become devoid of any
effect.
   134. Moreover, it stands to reason that if, as a matter of fact, a dispute
had been settled, it is no longer a dispute. Therefore, if the phrase “which
is not settled” is to be interpreted as requiring only that the dispute
referred to the Court must in fact exist, that phrase would have no useful-
ness. Similarly, the express choice of two modes of dispute settlement,
namely, negotiations or resort to the special procedures under CERD,
suggests an affirmative duty to resort to them prior to the seisin of the
Court. Their introduction into the text of Article 22 would otherwise be
meaningless and no legal consequences would be drawn from them con-
trary to the principle that words should be given appropriate effect when-
ever possible.
   135. The Court also observes that, in its French version, the above‑
mentioned expression employs the future perfect tense (“[t]out différend . . .
qui n’aura pas été réglé par voie de négociation ou au moyen des procé-
dures expressément prévues par la convention”), whereas the simple pres-
ent tense is used in the English version. The Court notes that the use of
the future perfect tense further reinforces the idea that a previous action
(an attempt to settle the dispute) must have taken place before another
action (referral to the Court) can be pursued. The other three authentic
texts of CERD, namely the Chinese, the Russian and the Spanish texts,
do not contradict this interpretation.
   136. The Court further recalls that, like its predecessor, the Permanent
Court of International Justice, it has had to consider on several occasions
whether the reference to negotiations in compromissory clauses estab-
lishes a precondition to the seisin of the Court.
   As a preliminary matter, the Court notes that, though similar in char-
acter, compromissory clauses containing a reference to negotiation (and
sometimes additional methods of dispute settlement) are not always uni-
form. Some contain a time‑element for negotiations, the expiry of which
would trigger a duty to arbitrate or to have recourse to the Court. Fur-
thermore, the language used contains variations such as “is not settled
by” or “cannot be settled by”. Sometimes, especially in older compromis-
sory clauses, the expression used is “which is not” or “cannot be adjusted
by negotiation” or “by diplomacy”.

  The Court will now consider its jurisprudence concerning compromis-
sory clauses comparable to Article 22 of CERD. Both Parties rely on this
jurisprudence as supportive of their respective interpretations of the ordi-
nary meaning of Article 22.
  137. In the Armed Activities case, the Democratic Republic of the
Congo (DRC) invoked inter alia Article 29, paragraph 1, of the Conven-

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127 	     convention on racial discrimination (judgment)

tion on the Elimination of All Forms of Discrimination against Women
(CEDAW) which used the formula “which is not settled by negotiation”.
The DRC denied that the compromissory clause in question contained
four preconditions. According to the DRC, the clause contained only two
conditions, namely that the dispute must involve the application or inter-
pretation of the Convention and that it must have proved impossible to
organize arbitration (Armed Activities on the Territory of the Congo (New
Application : 2002) (Democratic Republic of the Congo v. Rwanda), Juris-
diction and Admissibility, Judgment, I.C.J. Reports 2006, p. 37, para. 85).
The Court, noting that the DRC had made “numerous protests against
Rwanda’s actions in alleged violation of international human rights law”,
went on to say : “[w]hatever may be the legal characterization of such
protests as regards the requirement of the existence of a dispute between
the DRC and Rwanda for purposes of Article 29 of the Convention, that
Article requires also that any such dispute be the subject of negotiations”
(ibid., pp. 40‑41, para. 91).
   138. In the same case, the Court, after having found that there was no
dispute within the ambit of Article 75 of the World Health Organization
(WHO) Constitution, went on to note, that :
     “even if the DRC had demonstrated the existence of a question or
     dispute falling within the scope of Article 75 of the WHO Constitu-
     tion, it has in any event not proved that the other preconditions for
     seisin of the Court established by that provision have been satisfied,
     namely that it attempted to settle the question or dispute by negotia-
     tion with Rwanda or that the World Health Assembly had been
     unable to settle it” (ibid., p. 43, para. 100).

  139. Similarly, in its Advisory Opinion on the Applicability of the Obli-
gation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947, the Court was asked to determine whether the
United States was obliged to enter into arbitration procedure with the
United Nations under Section 21, paragraph (a), of the United Nations
Headquarters Agreement, which provides that
     “[a]ny dispute between the United Nations and the United States
     concerning the interpretation or application of this agreement . . .
     which is not settled by negotiation or other agreed mode of settlement,
     shall be referred for final decision to a tribunal of three arbitrators”
     (Applicability of the Obligation to Arbitrate under Section 21 of the
     United Nations Headquarters Agreement of 26 June 1947, Advisory
     Opinion, I.C.J. Reports 1988, p. 14, para. 7 ; emphasis added).

The Court noted that in order to be able to answer that question, it must,
upon determination that there exists a dispute between the United Nations
and the United States concerning the interpretation or application of the
Headquarters Agreement, “satisfy itself that [that dispute] is one ‘not

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settled by negotiation or other agreed mode of settlement’” (I.C.J. Reports
1988, p. 27, para. 34).
   140. The Court observes that in each of the above‑mentioned cases
where the compromissory clause was comparable to that included in
CERD, the Court has interpreted the reference to negotiations as consti-
tuting a precondition to seisin.
   141. Accordingly, the Court concludes that in their ordinary meaning,
the terms of Article 22 of CERD, namely “[a]ny dispute . . . which is not
settled by negotiation or by the procedures expressly provided for in this
Convention”, establish preconditions to be fulfilled before the seisin of
the Court.

(b) Travaux préparatoires
   142. In light of this conclusion, the Court need not resort to supple-
mentary means of interpretation such as the travaux préparatoires of
CERD and the circumstances of its conclusion, to determine the meaning
of Article 22.
   However, the Court notes that both Parties have made extensive argu-
ments relating to the travaux préparatoires, citing them in support of their
respective interpretations of the phrase “a dispute which is not set-
tled . . .”. Given this and the further fact that in other cases, the Court
had resorted to the travaux préparatoires in order to confirm its reading
of the relevant texts (see, for example, Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 27, para. 55 ; Mari-
time Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1995, p. 21, para. 40 ; Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 653, para. 53),
the Court considers that in this case a presentation of the Parties’ posi-
tions and an examination of the travaux préparatoires is warranted.

                                    *   *
   143. The Russian Federation contends that the compromissory clause
contained in Article 22 was a result of a compromise reached during the
CERD negotiations between the supporters and the opponents of the
possibility of unilateral seisin of the Court. In its view, the discussions in
the Third Committee of the United Nations General Assembly reveal that
even the supporters of the unilateral seisin acknowledged that recourse to
the Court should be conditioned by previous attempts to settle the dis-
pute through other means. Moreover, the Russian Federation asserts that
the compromissory clause was a stumbling block in the CERD negotia-
tions and was eventually accepted only due to the introduction of such
conditions designed to address the concerns that various States had in
submitting themselves to the jurisdiction of the Court. This was achieved
through the adoption of “the Three‑Power” amendment proposed by

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129 	     convention on racial discrimination (judgment)

Ghana, Mauritania and the Philippines, which added after the phrase “is
not settled by negotiation” the reference to the “procedures expressly pro-
vided for in CERD”.

  144. In the Russian Federation’s view, the discussions in the Third
Committee and the unanimous adoption of the “Three‑Power” amend-
ment confirm that the drafters considered the seisin of the Court as a last
resort, after the settlement procedures referred to in Article 22, including
negotiations, had been attempted and exhausted.

                                       *
    145. Georgia, for its part, contends that the clause providing for the
Court’s jurisdiction and the clauses introducing the CERD conciliation
mechanism were considered as separate and distinct by the drafters
throughout the drafting process. According to Georgia, the CERD
mechanism was thus intended to be applied without prejudice to other
 procedures for the settlement of disputes.
    146. Moreover, Georgia asserts that no statements were made during
 the final discussions at the Third Committee to the effect that recourse to
 the Court was conditional upon previous attempts to settle the dispute
 through the CERD conciliation machinery or through negotiation, or
 that these two modes of dispute settlement were cumulative. In Georgia’s
 view, the reference to the CERD mechanism and to negotiations was
 included in the compromissory clause in Article 22 merely to point out
 the existence of a non‑mandatory opportunity to resort to alternative
 settlement procedures before seising the Court, and was not intended to
 establish preconditions to such seisin.

                                   *       *
   147. The Court notes that at the time when CERD was being elabo-
rated, the idea of submitting to the compulsory settlement of disputes by
the Court was not readily acceptable to a number of States. Whilst States
could make reservations to the compulsory dispute settlement provisions
of the Convention, it is reasonable to assume that additional limitations
to resort to judicial settlement in the form of prior negotiations and other
settlement procedures without fixed time‑limits were provided for with a
view to facilitating wider acceptance of CERD by States.

  Beyond this general observation relating to the circumstances in which
CERD was elaborated, the Court notes that the usefulness of the travaux
préparatoires in shedding light on the meaning of Article 22 is limited by
the fact that there was very little discussion of the expression “a dispute
which is not settled”.

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130 	     convention on racial discrimination (judgment)

   A notable exception and one to which some significance must be
attached is the statement by the Ghanaian delegate, one of the sponsors
of the “Three‑Power” amendment on the basis of which the final wording
of Article 22 of CERD was agreed. He stated : “[T]he Three‑Power
amendment was self‑explanatory. Provision has been made in the draft
Convention for machinery which should be used in the settlement of dis-
putes before recourse was had to the International Court of Justice.”
(United Nations, Official Records of the General Assembly, Twentieth Ses-
sion, Third Committee, 1367th Meeting, doc. A/C.3/SR.1367, 7 Decem-
ber 1965, p. 485, para. 29 ; emphasis added.) It should be borne in mind
that this machinery encompassed negotiation which was already men-
tioned expressly in the text proposed by the Officers of the Third Com-
mittee (United Nations Economic and Social Council, Draft International
Convention on the Elimination of All Forms of Racial Discrimination,
suggestions for final clauses submitted by Officers of the Third Commit-
tee, United Nations doc. A/C.3/L.1237, 15 October 1965, Art. VIII).

   The Court notes that whilst no firm inferences can be drawn from the
drafting history of CERD as to whether negotiations or the procedures
expressly provided for in the Convention were meant as preconditions for
recourse to the Court, it is possible nevertheless to conclude that the
travaux préparatoires do not suggest a different conclusion from that at
which the Court has already arrived through the main method of ordi-
nary meaning interpretation.

          3. Whether the Conditions for the Seisin of the Court
             under Article 22 of CERD Have Been Fulfilled
  148. Having thus interpreted Article 22 of CERD to the effect that it
imposes preconditions which must be satisfied before resorting to the
Court, the next question is whether these preconditions were complied with.
  149. First of all, the Court notes that Georgia did not claim that, prior
to seising the Court, it used or attempted to use the procedures expressly
provided for in CERD. The Court therefore limits its examination to the
question of whether the precondition of negotiations was fulfilled.

(a) The concept of negotiations
  150. Regarding negotiations, the Russian Federation refers to several
factors that were taken into consideration by the Court in its jurispru-
dence when evaluating whether or not negotiations have been attempted
and have reached a deadlock, such as the duration of negotiations and
the authenticity of efforts to reach a negotiated conclusion. Based on its
review of the Court’s case law in this regard, it concludes that whatever
form they may take, substantially, negotiations are an exchange of points
of view on law and facts, of mutual compromises in order to reach an

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131 	     convention on racial discrimination (judgment)

agreement. In this regard, it refers to the decision of the Permanent Court
of International Justice in the Free Zones of Upper Savoy and the District
of Gex case, in which the judicial settlement of international disputes was
considered to be “simply an alternative to the direct and friendly settle-
ment of such disputes between the parties” (Order of 19 August 1929,
P.C.I.J., Series A, No. 22, p. 13). The Russian Federation further points
to the Permanent Court’s Advisory Opinion on Railway Traffic between
Lithuania and Poland, where the obligation to negotiate was defined as an
obligation “not only to enter into negotiations but also to pursue them as
far as possible with a view to concluding agreements”, even if an obliga-
tion to negotiate does not imply an obligation to reach agreement (Advi-
sory Opinion, 1931, P.C.I.J., Series A/B, No. 42, p. 116).

    151. In addition, relying on the separate opinion of Judge Sir Gerald
Fitzmaurice in the Northern Cameroons case, the Russian Federation
contends that the threshold to find the existence of negotiations is high ;
 that it excludes mere disputations, such as in the form of exchange of
 arguments between States “across the floor of an international assembly,
 or circulating statements of their complaints or contentions to its member
 States” (Northern Cameroons (Cameroon v. United Kingdom), Prelimi-
 nary Objections, Judgment, I.C.J. Reports 1963, p. 123, separate opinion
 of Judge Sir Gerald Fitzmaurice). Moreover, on the basis of Judge
 Fitzmaurice’s opinion, the Russian Federation contends that a dispute
 certainly cannot be considered as “settled by negotiation”, when there
 was no attempt at “direct discussions between the parties” (ibid.). Fur-
thermore, the Russian Federation cites the Judgment in the Armed Activ-
 ities case as supporting its contention that mere protests cannot amount
 to negotiations (Armed Activities on the Territory of the Congo (New
 Application : 2002) (Democratic Republic of the Congo v. Rwanda), Juris-
 diction and Admissibility, Judgment, I.C.J. Reports 2006, pp. 40‑41,
 para. 91).

                                     *
   152. For its part, Georgia rejects the Russian Federation’s definition of
what constitutes negotiations (particularly its differentiation between
“disputation” and “negotiation” and its contention that mere protests
cannot amount to negotiation), as unreasonably stringent and departing
from the established jurisprudence of the Court. According to Georgia,
the case law of this Court and of its predecessor, the Permanent Court of
International Justice, demonstrates that the threshold for negotiations is
low ; that substance is more important than form ; that it is for the parties
to determine whether further negotiations are likely to be fruitful ; and
that no purpose is to be served in the pursuit of hopeless or futile nego-
tiations. In short, as per Georgia’s submissions, the determination of the
existence of negotiations is a relative and flexible one.

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132 	     convention on racial discrimination (judgment)

   153. In particular, Georgia suggests that there is no requirement to fol-
low a specific procedure or format of negotiations. It further contends
that even very brief informal discussions in either bilateral or multilateral
settings involving, for example, a simple communication of protest to a
silent or intractable party, would constitute negotiations. In sum, accord-
ing to Georgia, any indirect exchange between the parties to a dispute
would constitute negotiations.
   154. Furthermore, Georgia contends that negotiations between the
Parties in this case need not expressly refer to CERD or its substantive
provisions. Relying on the Court’s Judgment in the case concerning Mili-
tary and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 1984, pp. 428‑429, para. 83 and on its Order of 15 Octo-
ber 2008 in the present case, Georgia concludes that the only requirement
is that the subject‑matter of the dispute under CERD — i.e., racial dis-
crimination — must have been discussed.
   155. Finally, Georgia contends that the ordinary meaning of the phrase
“is not settled by negotiation”, as opposed to “cannot be settled by nego-
tiation”, only requires evidence that Georgia has made an attempt at
negotiations and not that such negotiations have reached a deadlock
(emphasis added by Georgia in its Written Statement).

                                    *   *
  156. The Court must first address a series of issues involving the nature
of the precondition of negotiations, namely : assessing what constitutes
negotiations ; considering their adequate form and substance ; and deter-
mining to what extent they should be pursued before it can be said that
the precondition has been met.

   157. In determining what constitutes negotiations, the Court observes
that negotiations are distinct from mere protests or disputations. Nego
tiations entail more than the plain opposition of legal views or interests
between two parties, or the existence of a series of accusations and rebut-
tals, or even the exchange of claims and directly opposed counter‑claims.
As such, the concept of “negotiations” differs from the concept of “dis-
pute”, and requires — at the very least — a genuine attempt by one of the
disputing parties to engage in discussions with the other disputing party,
with a view to resolving the dispute.
   158. Clearly, evidence of such an attempt to negotiate — or of the con-
duct of negotiations — does not require the reaching of an actual agree-
ment between the disputing parties. In this regard, in its Advisory Opinion
on Railway Traffic between Lithuania and Poland, the Permanent Court
of International Justice characterized the obligation to negotiate as an
obligation “not only to enter into negotiations, but also to pursue them as
far as possible, with a view to concluding agreements [even if] an obliga-

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133 	     convention on racial discrimination (judgment)

tion to negotiate does not imply an obligation to reach agreement . . .”
(Railway Traffic between Lithuania and Poland, Advisory Opinion, 1931,
P.C.I.J., Series A/B, No. 42, p. 116 ; see also North Sea Continental Shelf
(Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports
1969, p. 48, para. 87 ; Pulp Mills on the River Uruguay (Argentina v. Uru-
guay), Judgment, I.C.J. Reports 2010 (I), p. 68, para. 150).
   159. Manifestly, in the absence of evidence of a genuine attempt to
negotiate, the precondition of negotiation is not met. However, where
negotiations are attempted or have commenced, the jurisprudence of this
Court and of the Permanent Court of International Justice clearly reveals
that the precondition of negotiation is met only when there has been
a failure of negotiations, or when negotiations have become futile or
deadlocked (Mavrommatis Palestine Concessions, Judgment No. 2, 1924,
P.C.I.J., Series A, No. 2, p. 13 ; South West Africa (Ethiopia v. South
Africa ; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, pp. 345‑346 ; United States Diplomatic and Consular
Staff in Tehran (United States of America v. Iran), Judgment,
I.C.J. Reports 1980, p. 27, para. 51 ; Applicability of the Obligation to
Arbitrate under Section 21 of the United Nations Headquarters Agreement
of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 33, para. 55 ;
Questions of Interpretation and Application of the 1971 Montreal Conven-
tion arising from the Aerial Incident at Lockerbie (Libyan Arab Jama-
hiriya v. United States of America), Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 122, para. 20).
   160. Furthermore, ascertainment of whether negotiations, as distinct
from mere protests or disputations, have taken place, and whether they
have failed or become futile or deadlocked, are essentially questions of
fact “for consideration in each case” (Mavrommatis Palestine Conces-
sions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 13). Notwith-
standing this observation, the jurisprudence of the Court has outlined
general criteria against which to ascertain whether negotiations have
taken place. In this regard, the Court has come to accept less formalism
in what can be considered negotiations and has recognized “diplomacy by
conference or parliamentary diplomacy” (South West Africa (Ethiopia v.
South Africa ; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 346).
   161. Concerning the substance of negotiations, the Court has accepted
that the absence of an express reference to the treaty in question does not
bar the invocation of the compromissory clause to establish jurisdiction
(Military and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States of America), Jurisdiction and Admissibility, Judg-
ment, I.C.J. Reports 1984, p. 428, para. 83). However, to meet the
precondition of negotiation in the compromissory clause of a treaty, these
negotiations must relate to the subject‑matter of the treaty containing the
compromissory clause. In other words, the subject‑matter of the negotia-
tions must relate to the subject‑matter of the dispute which, in turn, must
concern the substantive obligations contained in the treaty in question.

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134 	     convention on racial discrimination (judgment)

    162. In the present case, the Court is therefore assessing whether Geor-
gia genuinely attempted to engage in negotiations with the Russian
Federation, with a view to resolving their dispute concerning the Russian
 Federation’s compliance with its substantive obligations under CERD.
 Should it find that Georgia genuinely attempted to engage in such nego-
 tiations with the Russian Federation, the Court would examine whether
 Georgia pursued these negotiations as far as possible with a view to set-
 tling the dispute. To make this determination, the Court would ascertain
 whether the negotiations failed, became futile, or reached a deadlock
 before Georgia submitted its claim to the Court.

(b) Whether the Parties have held negotiations on matters concerning the
    interpretation or application of CERD
  163. Against the background of these criteria, the Court now turns to
the evidence submitted to it by the Parties to determine whether this evi-
dence demonstrates, as stated by Georgia, that at the time it filed its Appli-
cation on 12 August 2008, there had been negotiations between itself and
the Russian Federation concerning the subject‑matter of their legal dispute
under CERD, and that these negotiations had been unsuccessful.

                                    * *
   164. As previously noted (see paragraph 33), the Parties referred the
Court to several documents and statements relating to events in Abkhazia
and South Ossetia from 1990 to the time of filing by Georgia of its Appli-
cation. On the specific issue of the existence of negotiations on matters
falling under CERD, Georgia submits evidence which in its view demon-
strates that negotiations involving delegations from Georgia and the Rus-
sian Federation concerning the subject‑matter of the present dispute have
progressed, unsuccessfully, in numerous fora, including but not limited
to : (i) the United Nations Geneva Process and the Coordinating Council
for Georgia and Abkhazia, and the Group of Friends of Georgia ; (ii) the
Joint Control Commission for the Georgian‑Ossetian Conflict Settle-
ment ; (iii) the Organization for Security and Co‑operation in Europe ;
and (iv) the Council of the Heads of State of the Commonwealth of Inde-
pendent States.
   Georgia further alleges that the evidence which it submitted demon-
strates the existence and subsequent failure of high‑level bilateral negotia-
tions between Georgia and the Russian Federation relating to various
aspects of the present dispute.
   165. Such negotiations are considered by Georgia to have dealt with
specific matters falling under CERD, namely, the Russian Federation’s
direct participation in ethnic cleansing and other acts of discrimination
against ethnic Georgians in South Ossetia and Abkhazia ; the Russian
Federation’s prevention of ethnic Georgian IDPs from exercising their
right of return to their homes in South Ossetia and Abkhazia ; the Rus-

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135 	     convention on racial discrimination (judgment)

sian Federation’s support, sponsorship and defence of discrimination
against ethnic Georgians by other parties ; and the Russian Federation’s
failure to prevent discrimination against ethnic Georgians in areas under
its control.

                                        *
   166. For its part, the Russian Federation, in addressing the above
claims, essentially contends that the bilateral and multilateral contacts
between itself and Georgia have not dealt with the question of racial dis-
crimination, and thus cannot constitute negotiations on matters falling
under CERD. Precisely, the Russian Federation, upon commenting on
the facts in the record, submits that, “[a]t no occasion in their bilateral
relations did Georgia articulate any claim of racial discrimination by
Russia, and Georgia and Russia did not engage in negotiations in respect
of any such claim”. Similarly, the Russian Federation puts forth that the
contacts between Georgia and the Russian Federation within the frame-
work of international organizations, or in other multilateral fora, call for
the same conclusion as the one made in respect of bilateral negotiations,
namely that there have never been negotiations on the dispute alleged by
Georgia on the application of CERD.

                                    *       *
   167. The Court recalls its conclusions regarding the Russian Federa-
tion’s first preliminary objection, as it is directly connected to the Russian
Federation’s second preliminary objection. After examination of the evi-
dence submitted by the Parties, the Court concluded that a dispute
between Georgia and the Russian Federation falling within the ambit of
CERD arose only in the period immediately before the filing of the Appli-
cation. Specifically, the evidence put forth by Georgia which pre‑dates the
beginning of armed hostilities in South Ossetia during the night of 7 to
8 August 2008 failed to demonstrate the existence of a legal dispute
between Georgia and the Russian Federation on matters falling under
CERD.
   168. It stands to reason that it was only possible for the Parties to be
negotiating the matters in dispute, namely, the Russian Federation’s com-
pliance with its obligations relating to the elimination of racial discrimi-
nation, between 9 August 2008 and the date of the filing of the Application,
on 12 August 2008, i.e., the period during which the Court found that a
dispute capable of falling under CERD had arisen between the Parties.
   169. The Court’s task at this point is therefore twofold : first, to deter-
mine whether the facts in the record show that, during this circumscribed
period, Georgia and the Russian Federation engaged in negotiations with
respect to the matters in dispute concerning the interpretation or applica-
tion of CERD ; and secondly, if the Parties did engage in such negotia-

69

136 	     convention on racial discrimination (judgment)

tions, to determine whether those negotiations failed, therefore enabling
the Court to be seised of the dispute under Article 22.
   170. Before the Court considers the evidence bearing on the answers to
those two questions, it observes that negotiations did take place between
Georgia and the Russian Federation before the start of the relevant dis-
pute. These negotiations involved several matters of importance to the
relationship between Georgia and the Russian Federation, namely, the
status of South Ossetia and Abkhazia, the territorial integrity of Georgia,
the threat or use of force, the alleged breaches of international humani-
tarian law and of human rights law by Abkhaz or South Ossetian author-
ities and the role of the Russian Federation’s peacekeepers. However, in
the absence of a dispute relating to matters falling under CERD prior to
9 August 2008, these negotiations cannot be said to have covered such
matters, and are thus of no relevance to the Court’s examination of the
Russian Federation’s second preliminary objection.

   171. The Court begins its examination of the relevant evidence by
recalling Georgia’s factual narrative of the alleged failed negotiations
which it contends took place between the night of 7 to 8 August and
12 August 2008. According to Georgia, after 8 August 2008, when it
alleges the Russian Federation commenced its campaign of ethnic cleans-
ing against ethnic Georgians in South Ossetia and Abkhazia, the former
urgently attempted to engage with the latter to bring the violence against
Georgian civilians to a halt. With diplomatic relations suspended, Geor-
gia claims it appealed to the Russian Federation for talks via the United
Nations. On 10 August 2008, Georgia explains that it requested an emer-
gency session of the Security Council, during which it informed the Coun-
cil of the gross human rights violations then being perpetrated against
ethnic Georgians by the Russian Federation’s armed forces that amounted
to a process of exterminating the Georgian population. According to
Georgia, the Russian Federation’s Permanent Representative used the
Security Council session to acknowledge, and deny, the public address
President Saakashvili had made the previous day in which he explicitly
accused the Russian Federation of perpetrating ethnic cleansing. Finally,
Georgia submits that the Russian Federation’s Minister for Foreign
Affairs publicly made clear that further contact between Georgia and the
Russian Federation were impossible.

   172. Georgia seeks to support this presentation of facts, which in its
view demonstrates how it attempted to negotiate with the Russian Fed-
eration, and how these attempts were unsuccessful, by submitting certain
documents and statements to the Court. These documents and statements
are of relevance both to the first and the second preliminary objection
raised by the Russian Federation and the Court has therefore already
addressed them in its consideration of the first preliminary objection (see
paragraphs 109 to 113). The first statement cited by Georgia from this

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137 	     convention on racial discrimination (judgment)

period is a press briefing dated 9 August 2008 from the Office of the
President of Georgia. In this statement made during a meeting with
foreign journalists, President Saakashvili declared that :
        “Russian troops, Russian tanks that moved in, into South Ossetia
     on their way expelled the whole ethnically Georgian population of
     South Ossetia. This morning they’ve committed the ethnic cleansing
     in all areas they control in South Ossetia, they have expelled ethnic
     Georgians living there. Right now they are trying to set up the ethnic
     cleansing of ethnic Georgians from upper Abkhazia — Kodori
     Gorge.”
   173. The second document submitted by Georgia as evidencing nego-
tiations during the relevant period is the procès‑verbal of the Security
Council meeting convened upon Georgia’s request (United Nations
doc. S/PV.5953, 10 August 2008), during which the Georgian representa-
tive described at length the armed activities taking place on Georgian ter-
ritory. Accusing the Russian Federation of misconduct, the Georgian
representative declared that “[t]he process of exterminating the Georgian
population and annihilating Georgian statehood is in full swing”.

   174. In his subsequent statement before the Security Council, the Rus-
sian Federation’s representative placed the blame on Georgia for the out-
break of armed activities. In doing so, he accused Georgian authorities of
ethnically cleansing a portion of its own population :

        “So how can we describe this action by the Georgian leadership? It
     has been said that aggression is only when one party attacks another.
     But if the aggression is carried out against your own people, is that
     in any way better? What legal terms can be used to describe what has
     been done by the Georgian leadership? Can we use ‘ethnic cleansing’,
     for example, when, over a number of days, nearly 30,000 of the
     120,000 people of South Ossetia have become refugees who have fled
     to Russia : more than a quarter of the population? They went across
     the border from South Ossetia to the North at great risk to their lives.
     Is that ethnic cleansing or is it not? Should we describe that as geno-
     cide or not? When out of that population of 120,000, 2,000 innocent
     civilians die on the first day, is that genocide or is it not? How many
     people, how many civilians must die before we describe it as geno-
     cide?”
   175. During the same meeting, both Georgia’s and the Russian
 ederation’s representatives made additional comments to the Security
F
Council members. The Georgian representative urged the members to take
action by declaring that “Russia’s intention [is] to erase Georgian state-
hood and to exterminate the Georgian people”. Responding to the Geor-
gian representative’s allegation as to the Russian Federation’s intention,
the latter’s representative asserted that “the intention of the Russian

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138 	         convention on racial discrimination (judgment)

 ederation in this case is to ensure that the people of South Ossetia
F
and Abkhazia not fear for their lives or for their identity”.
   176. Finally, Georgia also submits the transcript of a press conference
held in Moscow on 12 August 2008 — the date of Georgia’s filing of its
Application — by the Russian Federation’s Minister for Foreign Affairs
and the Minister for Foreign Affairs of Finland and Chairman‑in‑Office
of the OSCE.
   177. The Court takes note of certain significant elements of the content
of this press conference. First, the Russian Federation places the blame
for the outbreak of armed activities on the present Georgian leadership.
Secondly, the Russian Federation asserts that it has “no trust in
Mikhail Nikolayevich Saakashvili,” and that “mov[ing] to mutually
respectful relations . . . is hardly possible with the present Georgian lead-
ership”. Thirdly, the Russian Federation announces that its “approaches
toward the negotiation process will undergo substantial change”.
Fourthly, the Russian Federation proposes its view of the essential next
steps in the restoration of peace, including the cessation of armed activi-
ties, and the “signing of a legally binding agreement on the non‑use of
force” between Georgia, Abkhazia and South Ossetia. Fifthly, the Rus-
sian Federation has received confirmation from the Chairman‑in‑Office
of the OSCE that Georgia is ready for the conclusion of such a pledge on
the non‑use of force. Additionally, the Russian Federation’s Foreign
Minister declared that :
         “As a matter of fact, it will be no exaggeration to say that the talk
     is about ethnic cleansings, genocide and war crimes [committed by
     Georgia].
     �����������������������������������������������������������������������������������������������������������������
         Mr. Saakashvili . . . claimed hysterically that the Russian side
     wanted to annex the whole of Georgia and, in general, he did not feel
     shy of using the term ethnic cleansings, although, true, it was Russia
     that he accused of carrying out those ethnic cleansings.”
    178. The Court makes two observations on the basis of the Russian
Federation’s Foreign Minister’s remarks. First, with regard to the
subject‑matter of CERD, the Court notes that the topic of ethnic cleansing
 had not become the subject of genuine negotiations or attempts at nego-
 tiation between the Parties. The Court is of the view that although the
 claims and counter‑claims concerning ethnic cleansing may evidence the
 existence of a dispute as to the interpretation and application of CERD,
 they do not constitute attempts at negotiations by either Party.

  179. Secondly, the Court observes that the issue of negotiations
between Georgia and the Russian Federation is complex. On the one
hand, the Russian Federation’s Foreign Minister manifested his discon-
tent with regard to President Saakashvili personally, and stated that he
“do[es] not think that Russia will have the mindset not only to negotiate,
but even to speak with Mr. Saakashvili” and that “Mr. Saakashvili can

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139 	     convention on racial discrimination (judgment)

no longer be our partner and it would be best if he left”. On the other
hand, the Foreign Minister did not make his desire to see President Saa-
kashvili “repent” for his “crime against our citizens” a “condition for
ending this stage of the military operation”, and for resuming talks on the
non‑use of force. He further stated that :
       “As to Georgia, we have always treated and continue to treat the
     Georgian people with deep respect. We continue to want to live with
     them in friendship and harmony and are convinced that the Georgian
     people will yet display their wisdom.”
    180. Notwithstanding the tone of certain remarks made by the Foreign
Minister of the Russian Federation about President Saakashvili, the
Court considers that overall the Russian Federation did not dismiss the
possibility of future negotiations on the armed activities in which it was
engaged at the time, and on the restoration of peace between Georgia,
Abkhazia and South Ossetia. However, the Court considers that the
subject‑matter of such negotiations was not the compliance by the Russian
 Federation with its obligations relating to the elimination of racial dis-
 crimination. Therefore, regardless of the Russian Federation’s ambiguous
 and perhaps conflicting statements on the subject of negotiations with
 Georgia as a whole, and President Saakashvili personally, these negotia-
 tions did not pertain to CERD‑related matters. As such, whether the
 Russian Federation wanted to end or to continue negotiations with Geor-
 gia on the matter of the armed conflict is of no relevance for the Court
 in the present case. Consequently, remarks by the President and by the
 Foreign Minister of the Russian Federation regarding the prospects of
 talks with the Georgian President did not terminate the possibility of
 CERD‑related negotiations, as those were never genuinely or specifically
 attempted.

   181. In sum, the Court is unable to consider these statements —
whether in the Georgian presidential press briefing or at the Security
Council meeting — as genuine attempts by Georgia to negotiate matters
falling under CERD. As outlined in detail with regard to the Russian
Federation’s first preliminary objection, the Court considers that these
accusations and replies by both Parties on the issues of “extermination”
and “ethnic cleansing” attest to the existence of a dispute between them
on a subject‑matter capable of falling under CERD. However, they fail to
demonstrate an attempt at negotiating these matters.

   182. The Court is thus also unable to agree with Georgia’s submission
when it claims that “Russia’s refusal to negotiate with Georgia in the
midst of its ethnic cleansing campaign, and two days prior to the filing of
the Application is sufficient to vest the Court with jurisdiction under Arti-
cle 22”. The Court concludes that the facts in the record show that,
between 9 August and 12 August 2008, Georgia did not attempt to nego-
tiate CERD‑related matters with the Russian Federation, and that,

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140 	     convention on racial discrimination (judgment)

consequently, Georgia and the Russian Federation did not engage in
 negotiations with respect to the latter’s compliance with its substantive
 obligations under CERD.
    183. The Court has already observed (see paragraph 149) the fact that
 Georgia did not claim that, prior to the seisin of the Court, it used or
 attempted to use the other mode of dispute resolution contained at Arti-
cle 22, namely the procedures expressly provided for in CERD. Consider-
ing the Court’s conclusion, at paragraph 141, that under Article 22 of
CERD, negotiations and the procedures expressly provided for in CERD
constitute preconditions to the exercise of its jurisdiction, and considering
the factual finding that neither of these two modes of dispute settlement
was attempted by Georgia, the Court does not need to examine whether
the two preconditions are cumulative or alternative.
    184. The Court accordingly concludes that neither requirement con-
tained in Article 22 has been satisfied. Article 22 of CERD thus cannot
serve to found the Court’s jurisdiction in the present case. The second
preliminary objection of the Russian Federation is therefore upheld.

            IV. Third and Fourth Preliminary Objections
  185. Having upheld the second preliminary objection of the Russian
Federation, the Court finds that it is required neither to consider nor to
rule on the other objections to its jurisdiction raised by the Respondent
and that the case cannot proceed to the merits phase.

                                       *
                                   *       *

   186. The Court in its Order of 15 October 2008 indicated certain pro-
visional measures. This Order ceases to be operative upon the delivery of
this Judgment. The Parties are under a duty to comply with their obliga-
tions under CERD, of which they were reminded in that Order.

                                       *
                                   *       *

  187. For these reasons,
  The Court,
   (1) (a) By twelve votes to four,
   Rejects the first preliminary objection raised by the Russian Federa-
tion ;
  in favour : President Owada ; Judges Al-Khasawneh, Simma, Abraham,
    Keith, Sepúlveda‑Amor, Bennouna, Cançado Trindade, Yusuf, Greenwood,
    Donoghue ; Judge ad hoc Gaja ;
  against : Vice‑President Tomka ; Judges Koroma, Skotnikov, Xue ;

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141 	     convention on racial discrimination (judgment)

  (b) By ten votes to six,
  Upholds the second preliminary objection raised by the Russian Fed-
eration ;
  in favour : Vice‑President Tomka ; Judges Koroma, Al‑Khasawneh, Keith,
     Sepúlveda‑Amor, Bennouna, Skotnikov, Yusuf, Greenwood, Xue ;

  against : President Owada ; Judges Simma, Abraham, Cançado Trindade,
    Donoghue ; Judge ad hoc Gaja ;
  (2) By ten votes to six,
 Finds that it has no jurisdiction to entertain the Application filed by
Georgia on 12 August 2008.
  in favour : Vice‑President Tomka ; Judges Koroma, Al‑Khasawneh, Keith,
     Sepúlveda‑Amor, Bennouna, Skotnikov, Yusuf, Greenwood, Xue ;
  against : President Owada ; Judges Simma, Abraham, Cançado Trindade,
     Donoghue ; Judge ad hoc Gaja.

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

 (Signed) Hisashi Owada,
	President.
                                          (Signed) Philippe Couvreur,
                                                        Registrar.

  President Owada and Judges Simma, Abraham, Donoghue and Judge
ad hoc Gaja append a joint dissenting opinion to the Judgment of the
Court ; President Owada appends a separate opinion to the Judgment of
the Court ; Vice‑President Tomka appends a declaration to the Judgment
of the Court ; Judges Koroma, Simma and Abraham append separate
opinions to the Judgment of the Court ; Judge Skotnikov appends a
declaration to the Judgment of the Court ; Judge Cançado Trindade
appends a dissenting opinion to the Judgment of the Court ;
Judges Greenwood and Donoghue append separate opinions to the
Judgment of the Court.

                                                       (Initialled) H.O.
                                                       (Initialled) Ph.C.

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