239

   Dissenting opinion of Judge Cançado Trindade

                            table of contents
                                                                    Paragraphs
   I. Prolegomena1-5
  II. Permanent Court of International Justice and Internation-
      al Court of Justice : Compulsory Jurisdiction Revisited           6-36
      1. The work on the PCIJ Statute of the Advisory Committee
         of Jurists (1920)                                              6-13
      2. The debates of the Assembly of the League of Nations
         and subsidiary organs (1920)                                  14-26
      3. The debates on the ICJ Statute of the United Nations
         Conference on International Organization and subsidiary
          organs (1945)                                                27-36
 III. The Optional Clause of Compulsory Jurisdiction : From
      the Professed Ideal to a Distorted Practice                      37-44
 IV. The Old Ideal of Automatism of Compulsory Jurisdiction of
     the Hague Court                                                   45-63
	V. The Relationship of the Optional Clause/Compromissory
    Clauses with the Nature and Substance of the Corres
    ponding Treaties                                                   64-78
	VI. The Principle Ut Res Magis Valeat Quam Pereat79-87
	VII. The Compromissory Clause (Art. 22) of the UN Convention
      on the Elimination of All Forms of Racial Discrimination
      (CERD) : Elements for Its Proper Interpretation and
      Application                                                    88-118
       1. Ordinary meaning of Article 22 of the CERD Convention       92-96
       2. Travaux préparatoires of Article 22 of the CERD Convention97-109
       3. The previous pronouncement by the Court on Article 22 of
          the CERD Convention : Venire contra factum/Dictum pro-
          prium non valet                                           110-118
	VIII. Towards Peaceful Settlement and Realization of Justice :
       Verification of Prior Attempts or Efforts of Negotiation     119-135

      1.	Permanent Court of International Justice                    119-124
      2. International Court of Justice                              125-135
 IX. Towards Peaceful Settlement with the Realization of
     Justice under Human Rights Treaties                            136-144

173

240   convention on racial discrimination (diss. op. cançado trindade)

	X. The Law and the Sufferings and Needs of Protection of
    the Population : Summum Jus, Summa Injuria145-166
	XI. Human Rights Treaties as Living Instruments                      167-185

	XII. A Recapitulation : Concluding Observations                      186-196
	XIII. Epilogue : An Old Dilemma Revisited, in the Framework
       of Contemporary Jus Gentium                                    197-214

                                      *
                             I. Prolegomena

   1. I regret not to be able to follow the Court’s majority in the decision
which the Court has just adopted in the present Judgment on preliminary
objections in the case concerning the Application of the International Con-
vention on the Elimination of All Forms of Racial Discrimination (Georgia
v. Russian Federation). My dissenting position encompasses the whole of
the Court’s reasoning, and its conclusions on the second preliminary
objection and on jurisdiction, as well as its treatment of issues of sub-
stance and procedure raised before the Court. This being so, I care to
leave on the records the foundations of my dissenting position, given the
considerable importance that I attach to the issues raised by both Georgia
and the Russian Federation in the cas d’espèce, bearing in mind the settle-
ment of the dispute at issue ineluctably linked to the imperative of the
realization of justice under a United Nations human rights treaty of the
historical importance of the International Convention on the Elimination
of All Forms of Racial Discrimination (hereinafter the CERD Conven-
tion).

   2. I thus present with all care the foundations of my entirely dissenting
position on the whole matter dealt with by the Court in the Judgment
which it has just adopted, out of respect for, and zeal in, the exercise of
the international judicial function, guided above all by the ultimate goal
precisely of the realization of justice. To that effect, I shall dwell upon all
the aspects concerning the dispute brought before the Court which forms
the object of the present Judgment of the Court, in the hope of thus con-
tributing to the clarification of the issues raised and to the progressive
development of international law, in particular in the international adju-
dication by this Court of cases on the basis of universal human rights
treaties.
   3. My first line of considerations concerns the genesis of the compul-
sory jurisdiction of the Hague Court (PCIJ and ICJ), which in my view
cannot pass unnoticed in the consideration of compromissory clauses
such as the one of the CERD Convention (Art. 22). I shall next turn to
the legislative history and development of the optional clause of compul-

174

241    convention on racial discrimination (diss. op. cançado trindade)

sory jurisdiction of the Hague Court (PCIJ and ICJ). This will lead me
into the consideration of the relationship between the optional clause/
compromissory clauses and the nature and substance of the correspond-
ing treaties wherein they are enshrined.
    4. Attention will thus be drawn to the principle ut res magis valeat
quam pereat, before I turn to the elements for the proper interpretation
and application of the compromissory clause (Art. 22) of the CERD Con-
vention (encompassing its ordinary meaning, its travaux préparatoires,
and the previous pronouncement of the Court itself on it). In considering,
next, the ineluctable relationship between peaceful settlement and the
realization of justice, particularly under human rights treaties, I shall
dwell in particular, upon the question of the verification of prior attempts
or efforts of negotiation, in the light of the relevant case law of the Hague
Court (PCIJ and ICJ).
    5. In sequence, I shall single out the concern of contemporary jus gen-
tium with the sufferings and needs of protection of the population, an
issue which, in my view, assumes a central position in the consideration of
the present case concerning the Application of the International Conven-
tion on the Elimination of All Forms of Racial Discrimination. This will
lead me to a review of the evolutive interpretation of human rights
treaties, such as the CERD Convention, regarded constantly in inter
 national case law and international legal doctrine as living instruments, so
 as to respond to new needs of protection of the human person, even in the
 most adverse circumstances. The path will then be paved for, last but not
 least, the presentation of my concluding observations, and my final reflec-
 tions on an old dilemma that we keep on facing nowadays, in the light of
 contemporary jus gentium.

              II. Permanent Court of International Justice
                   and International Court of Justice :
                     Compulsory Jurisdiction Revisited

                       1. The Work on the PCIJ Statute
                 of the Advisory Committee of Jurists (1920)
   6. In June‑July 1920, the Advisory Committee of Jurists appointed by
the Council of the League of Nations to draft the Statute of the Perma-
nent Court of International Justice (PCIJ) discussed at length the possi-
bility of providing the PCIJ with compulsory jurisdiction 1, so as to bring
about a development in the system of international adjudication. The
Committee considered a precise text on the compromissory clause, and
   1 Cf., on the proposed basis for discussion, CPJI/Comité consultatif de juristes,

Procès-verbaux des séances du comité (16 June-24 July 1920), The Hague, Van Langen-
huysen Brothers, 1920, p. 218. On a subsequent proposal (by Lord Phillimore) and amend-
ment (by Mr. Hagerup), Annexes 2-3, pp. 252-253.

175

242      convention on racial discrimination (diss. op. cançado trindade)

soon reached consensus on the introduction of a rule whereby the PCIJ
would be competent to hear certain disputes without the need of a previ-
ous (ad hoc or conventional) agreement between the contending parties.

   7. Under the draft Statute, such compulsory jurisdiction virtually
extended over all disputes of a “legal” nature, whereas consent would
have still been required to bring other kinds of matters before the PCIJ.
It was seemingly intended that the introduction of such system of com-
pulsory jurisdiction in disputes of a “legal nature” would also extend to
other cases in so far as they were covered by general or specific conven-
tions between the (contending) parties. The discussion of drafts of a juris-
dictional clause, since the 10th meeting of the Committee, kept in mind
particularly Article 14 of Covenant of the League of Nations, which
expressly referred to disputes “submitted” by the parties to the PCIJ 2.

   8. A proposal was advanced to the effect that the (PCIJ) Statute itself
was to be used as a general instrument whereby States would provide
their consent to jurisdiction ; in a working draft proposed by Baron Des-
camps, a last paragraph was added to the effect that : “Any State sub-
scribing to the present Act is considered as having agreed to settle by legal
means all disputes [of a legal nature].” 3 Already at the 14th meeting of the
Committee (held on 2 July 1920), compulsory jurisdiction had been gen-
erally accepted 4. Moving on to the applicable law, the Committee then
considered the inclusion of general principles in the list of legal sources
applicable by the PCIJ.
   9. Pursuant to Article 34 of the draft Statute, the PCIJ was to have
jurisdiction (even without any special convention conferring it upon the
Court) to hear and determine cases of a “legal nature” between member
States of the League of Nations concerning : (a) the interpretation of a
treaty ; (b) any question of international law ; (c) the existence of any
fact which, if established, would constitute a breach of an international
obligation ; (d) the nature or extent of reparation to be made for the
breach of an international obligation ; (e) the interpretation of a sentence
passed by the Court. This latter was also to take cognizance of all dis-
putes of any kind which may be submitted to it on the basis of a general

   2   Article 14 of the Covenant reads :
         “The Council shall formulate and submit to the Members of the League for adoption
       plans for the establishment of a Permanent Court of International Justice. The Court
       shall be competent to hear and determine any dispute of an international character
       which the parties thereto submit to it. The Court may also give an advisory opinion
       upon any dispute or question referred to it by the Council or by the Assembly.”
   3 CPJI/Comité consultatif de juristes, Procès-verbaux des séances du comité, op. cit.

supra note 1, Annex 1, p. 272, and cf. amendment, in ibid., Annex 5, pp. 277-278.
    4 Despite the concern — as to the applicable law — expressed by a couple of members ;

cf. ibid., pp. 308-309 and 311.

176

243     convention on racial discrimination (diss. op. cançado trindade)

 or particular convention between the parties. And, in the event of a dis-
 pute as to whether a certain case came within any of the aforementioned
 categories, the matter was to be settled by the decision of the Court 5.
     10. In the substantial debates of the Advisory Committee, of 2 July
1920, one of its members (E. Root), trying to restrain the prevailing
view, stated that “the world was prepared to accept the compulsory juris-
 diction of a Court which applied the universally recognized rules of
 international law” ; however, he did not think that it was disposed to
  accept “the compulsory jurisdiction of a Court which would apply prin-
  ciples, differently understood in different countries” 6. Accordingly, in his
  view, “the beginning must be modest”, with a “relatively limited juris
  diction” 7. The President of the Advisory Committee (Baron Descamps)
  promptly retorted that Mr. Root’s statement that “principles of justice”
  allegedly varied from country to country
      “might be partly true as to certain rules of secondary importance. But
      it is no longer true when it concerns the fundamental law of justice
      and injustice deeply engraved on the heart of every human being and
      which is given its highest and most authoritative expression in the
      legal conscience of civilized nations. That was the law which could
      not be disregarded by a judge, a law which in practice, whether it is
      wished to or not, a judge never would disregard.” 8
  11. Baron Descamps added that it would be incumbent upon the
Judges of the PCIJ “to consider whether the dictates of their conscience
were in agreement with the conception of justice of civilized nations” 9.
Another member of the Committee (B. C. J. Loder) also retorted to
Mr. Root’s view, arguing that it had incurred into a “confusion” with
“compulsory arbitration”, that “did not come within the competence of
the Committee”, which was “concerned with the rules to be applied by
the Court” (the PCIJ) ; B. C. J. Loder repeated that “all possible confusion
between the question of compulsory arbitration and that of the rules to
be applied by the Court must be avoided” 10.
  12. The Advisory Committee ended up by propounding the com
pulsory jurisdiction of the Hague Court (PCIJ). Its final Report stated
that :
      “the Committee did not intend to enable a party to avoid the juris-
      diction of the Court by alleging that there was still some hope of
      settlement by diplomatic means.
      �����������������������������������������������������������������������������������������������������������������
   5 Cf. op. cit. supra note 1, p. 729, the final Report, whereby the Committee finalized the

draft Articles and appended a commentary thereto ; and the preliminary version, in ibid.,
p. 566.
   6 Ibid., p. 308.
   7 Ibid., p. 309.
   8 Ibid., pp. 310-311.
   9 Ibid., p. 311.
   10 Ibid., p. 311.

177

244       convention on racial discrimination (diss. op. cançado trindade)

           The Court, after satisfying itself in limine litis that an attempt has
        been made to settle the case by diplomatic means, (. . .) shall deliver
        judgment under certain conditions. Article 34 consequently lays down
        that the Court may hear and determine, without any special conven-
        tion, disputes between States which are members of the League of
        Nations if such disputes are of a legal nature (. . .).” 11
  13. The Advisory Committee itself, commenting on this provision of
the draft, noted that :
        “in the opinion of the majority of the Committee, the grant of such
        powers, though perhaps not strictly in accordance with the letter of
        the Covenant, follows its spirit so exactly that it would seem a great
        pity, now that the Court is being definitely organized, not to complete
        the progress made by this last provision.
        �����������������������������������������������������������������������������������������������������������������
            [T]he majority [of the Committee] recognized that the States form-
        ing the League of Nations, in constituting the Court, must give it a
        competence in cases of a legal nature, without any convention other
        than the constituent Statute of the Court.” 12
Such was the position espoused by the Advisory Committee of Jurists,
entrusted [by the Council of the League of Nations] with the historical
task of drafting the Statute of the Hague Court in 1920. The Council
itself, however, was to take a different position, opposed to the proposed
compulsory jurisdiction of the PCIJ. The matter was then referred to the
Assembly of the League of Nations.

              2. The Debates of the Assembly of the League of Nations
                          and Subsidiary Organs (1920)
   14. At the I Assembly, in 1920, the question of the compulsory juris-
diction of the PCIJ was object of a careful debate ; some of the members
of the Advisory Committee of Jurists were present therein, in their capaci
ties of delegates of their countries. By and large, in the Assembly debates
that followed 13, the proposed clause of compulsory jurisdiction of the

   11 Op. cit. supra note 1, pp. 726-727.
   12 Cf. ibid., pp. 727-728. Cf. also the commentary, on this provision, by J. Brown Scott,
in The Project of a Permanent Court of International Justice and Resolutions of the Advisory
Committee of Jurists — Report and Commentary, Washington, 1920, p. 98 :
        “It would seem to follow that one of the parties could, in the absence of a separate
      and special convention or of special consent, lay the case before the Court, which is
      competent to receive it, and that the Court, being competent, could not only entertain
      the case, but could, at the request of the complaining State, proceed to decide it in the
      absence of the defendant State invited to appear before the Court.”
   13 Extensively reported in the League of Nations’ document : PCIJ, Documents Con

cerning the Action Taken by the Council of the League of Nations under Article 14 of the
Covenant, Geneva, PCIJ, 1921, pp. 1 et seq.

178

245     convention on racial discrimination (diss. op. cançado trindade)

PCIJ did not meet much enthusiasm on the part of most member States
of the League, although some States endorsed it (cf. infra).
   15. In particular, the originally proposed Article 34, then Article 36 in
the final numbering of the draft Statute of the PCIJ, was doubted to be in
conflict with the Covenant of the League ; hence a Sub-Committee was
established to study the issue, and to consider whether the Statute could
serve as an instrument whereby States could express their consent to the
PCIJ’s jurisdiction 14. The Sub-Committee acknowledged the controversy
on the interpretation of the Covenant, but decided not to propose any
amendment of the relevant Articles of the draft Statute 15.

   16. The negotiation deadlock was overcome thanks to a proposal by
the Brazilian Delegate 16 (Raul Fernandes), who devised an alternate ver-
sion of the jurisdictional clause, whereby parties to the Statute were free
to adhere or not 17 ; he then submitted a revised proposal focused on the
possibility that States, which desired to extend the scope of compulsory
jurisdiction of the Court, were permitted to do so by means of a declara-
tion. This proposal setting forth the optional clause was then approved in
the Assembly (8th Meeting), together with the whole draft Statute 18.
   17. The Norwegian Delegate (F. Hagerup), who — like R. Fernandes
— had worked on the topic in the Advisory Committee, though noting
with some regret that the momentum built by the Committee had been lost,
in the debates of the Assembly welcomed the Brazilian amendment ; he
reminded the Assembly, however, that compulsory jurisdiction was in his
view still in force even without recourse to the optional clause declaration,
at least for “all matters specifically provided for in treaties and conven-
tions in force”, as acknowledged by the amended jurisdictional clause 19.
   18. The main points made during the debates were reported in the
minutes (procès-verbaux) of the Assembly’s III Committee, in charge of
 the draft Statute of the PCIJ. In the debates of 24 November 1920 on
 compulsory jurisdiction, the delegate of Argentina (H. Pueyrredon) stated
 that if the PCIJ’s “jurisdiction was not obligatory, the Court of Justice
 would (. . .) be merely an arbitration tribunal” 20. The delegate of Brazil
(R. Fernandes) strongly criticized the modifications made by the League’s
Council of the conclusions of the Advisory Committee of Jurists, and
held that “[f]or legal questions the Court should have jurisdiction because
the decisions of the Court are the application of law, and make law” 21.

   14Op. cit. supra note 13, pp. 91-92.
   15Cf. ibid., pp. 210-211, and cf. also p. 107, on relevant discussion in the Assembly.
  16 Cf. ibid., Annex 49, at p. 222.
  17 Cf. ibid., p. 107, and Annex 11, p. 168.
  18 Ibid., p. 110.
  19 Ibid., pp. 249-250.
  20 League of Nations, Records of the I Assembly —Meetings of the III Committee (PCIJ/

CPJI), Geneva, 1920, p. 285.
  21 Ibid., p. 285.

179

246     convention on racial discrimination (diss. op. cançado trindade)

  19. Likewise, the delegate of Panama (H. Arias) thought that “the
compulsory jurisdiction could well be maintained”, and “the parties
should be obliged to bring the case before the Court if they had not
agreed to submit it to arbitration or to enquiry by the Council” 22. In the
same line of thinking, the delegate of Portugal (A. Costa) endorsed the
Advisory Committee’s support of compulsory jurisdiction ; he argued
that :
       “the Covenant imposed recourse to the Court as an obligation, being
       inspired by the principle, contrary to that held by Bismarck, that
       ‘right goes before might’. The League of Nations had undertaken the
       task of preventing war. The only means of effecting this was obliga-
       tory recourse to justice. If a Court with obligatory jurisdiction could
       not be established, the League was dead. (. . .) The League of Nations
       would gain strength by admitting the principle of the adaptation of
       the Covenant to the needs of humanity. Moreover, a Permanent
       Court without compulsory jurisdiction would not only contradict the
       great treaties of peace which conferred this jurisdiction upon it in
       special cases ; it would also constitute a mere repetition of the Hague
       Court of Arbitration.” 23
   20. The delegate of South Africa (Lord Robert Cecil), however, intro-
duced doubts into that debate, by arguing that the will or consent of the
parties should prevail (rather than compulsory jurisdiction), as the Court’s
judgments “would not be enforced” if they “concerned vital interests” of
the States 24. The Norwegian delegate (F. Hagerup) sharply disagreed with
Lord Robert Cecil’s “reservation of vital interests”, and “regretted that the
Council had not been able to adopt the point of view of the Jurists’
Committee” 25. The delegate of the Netherlands (B. C. J. Loder) also regret-
ted the “misunderstanding between the Jurist’s Committee and the Coun-
cil”, and held that “the establishment of compulsory jurisdiction was
exactly the step forward which should be made, and the step desired by the
Covenant” 26 ; yet, to keep on insisting to take this step further would run
“the risk of bringing about disagreement between different Powers and
thus of failing to achieve any result” at all 27.
   21. In the continuing debates, of 26 November 1920, the strong criti-
cism came this time from the delegate of Belgium (H. Lafontaine), to
whom the principle of compulsory jurisdiction was, by then (in 1920),

       “considered as the only means of emerging from the situation created
       by the war. The resistance to the application of the principle was due

  22 Op. cit. supra note 20, p. 286.
  23 Ibid., pp. 287-288.
  24 Ibid., p. 287.
  25 Ibid., p. 289.
  26 Ibid., p. 288.
  27 Ibid., p. 288.

180

247      convention on racial discrimination (diss. op. cançado trindade)

        to the two fetishes of unanimity and sovereignty. (. . .) The only
        admissible sovereignty was that of justice. (. . .) The Covenant bore
        the imprint of the fact that its authors were inspired by the fetishes
        of vital interests and honour, but at least these two expressions were
        not to be found in the Covenant, and this in itself constituted an
        element of progress.” 28
   22. Insisting on his criticism, the delegate of Belgium (H. Lafontaine)
saw “a contradiction in Article 14 of the Covenant, in that it provided for
a real Court of Justice to which, however, the parties would have recourse
only if they both agreed to do so” 29. The delegate of the British Empire
(Sir Cecil Hurst), however, did not think that the draftsmen of the Cove-
nant had the intention to establish a Court with compulsory jurisdiction ;
he beheld as the “true solution”, if arbitration did not succeed, “to induce
States to conclude mutual treaties” foreseeing recourse to a Court 30. This
was the way, in his view, to overcome “the hesitation of some States to
accept universal compulsory jurisdiction” 31. H. Lafontaine expressed
some skepticism, in reply to the proposal of Sir Cecil Hurst 32.

   23. In the remaining debates on the matter, of 1 and 13 December 1920,
the delegate of Greece (N. Politis) remarked that, since it seemed “impos-
sible to accept the idea of compulsion”, which “could not be imposed
upon minds which had not spontaneously accepted it”, the solution
appeared to be “to establish a network of separate conventions extending
the jurisdiction of the Court” 33. For his part, the delegate of Switzerland
(Max Huber) suggested the possibility of adoption of a convention for
compulsory arbitration 34. The delegate of Colombia (F. J. Urrutia) stated
that :
           “The principle of compulsory arbitration is not only a principle of
        international justice ; it is a democratic principle, since it is the logical
        result of the legal equality of States. It is deeply rooted in the history,
        traditions and institutions of the American peoples.” 35

   24. In the same line of thinking, the Peruvian delegate (M. H. Cornejo)
stated that “Peru has always defended compulsory arbitration”, and

   28 Op. cit. supra note 20, p. 292.
   29 Ibid., p. 293.
   30 Ibid., pp. 293-294.
   31 Ibid., p. 294.
   32 Ibid., p. 294.
   33 Société des Nations/CPJI, Documents au sujet de mesures prises par le Conseil de la

Société des Nations aux termes de l’article 14 du Pacte et de l’adoption par l’Assemblée du
Statut de la Cour permanente, Geneva, SdN/CPJI, 1920, p. 142.
   34   Ibid., p. 142.
   35   Ibid., pp. 241-242.

181

248     convention on racial discrimination (diss. op. cançado trindade)

remarked that “Latin America, by a very great majority, perhaps unani-
mously, desires compulsory jurisdiction and the reign of peace” 36. Like-
wise, the delegate of Cuba (Mr. de Aguero) observed that :
       “although the principle of compulsory jurisdiction is not included in
       the resolution of the III Committee, we will vote for that resolution.
       We understand the saying of the Latin philosopher : natura non fecit
       saltus. Perfection cannot be attained in a moment from that which
       does not as yet exist. The laws of evolution govern all things. We must
       begin by building a little chapel, and in the course of time the League
       of Nations will be able to build a cathedral.” 37

To the same effect, the delegate of Switzerland (Mr. Motta) added that
the setting up of a tribunal with compulsory jurisdiction “would have
been the ideal, but the present state of human society is still unfavourable
to its realization. (. . .) Article 36, however imperfect it may be, will be the
starting-point of a great movement towards freedom, out of which will
arise universal compulsory jurisdiction” 38.
   25. For his part, the delegate of Bolivia (Mr. Tamayo) expressed sup-
port for “the just, humane and truthful principle of compulsory arbitra-
tion” ; anything short of that, he added, amounted to “promising us
justice for tomorrow”, and “not giving it us today” 39. And the delegate of
Portugal (A. Costa) insisted on his view that Articles 12-15 of the Cove-
nant “implied the principle of compulsory jurisdiction for the Interna-
tional Court of Justice”, and he added, with a premonitory tone :
          “When we realize the necessity of remaining faithful to the decla-
       rations of the preamble to the Covenant and of declaring ourselves
       on the question of compulsory jurisdiction, we shall be forced to
       accept compulsion. The tribunal we are going to found will then be
       provided with compulsory jurisdiction, which will be admitted by all
       the Members of the League of Nations. Such is my wish. I accept the
       institution of a Permanent Court of International Justice because I
       have confidence in the future. If we are not to reach the end of which
       I have spoken, we are deceiving ourselves. The tribunal will disappear,
       and with it the League of Nations, if, to settle their disputes, the
       Members of the League are still at liberty to resort to war.” 40
  26. The compromise solution was the optional clause, proposed by the
Brazilian delegate (Raul Fernandes), as pointed out by the rapporteur of
the III Committee (F. Hagerup), in his Report on the discussions of the
Committee, in respect of what was to become Article 36 the Statute of the

  36 Op. cit. supra note 33, p. 244.
  37 Ibid., pp. 246-247.
  38 Ibid., p. 249.
  39 Ibid., p. 248.
  40 Ibid., p. 246.

182

249     convention on racial discrimination (diss. op. cançado trindade)

PCIJ 41. Furthermore, the Norwegian delegate (F. Hagerup), in the con-
cluding discussions of 13 December 1920, deemed it fit to state, in sup-
port of compulsory jurisdiction, that :
          “There are already in existence a large number of conventions
       which provide for compulsory jurisdiction. I am happy to pay tribute
       here to the important part played by the States of South America in
       this movement. They deserve a large share of the credit for the exten-
       sion of the idea. (. . .) [T]he States of Europe have also not been
       behindhand. Several of them, including some great powers, have con-
       cluded a number of treaties which set up compulsory jurisdiction.
       (. . .) I wish to emphasize here how highly desirable it would be for
       all States, which are bound by treaties providing for compulsory juris-
       diction in a general way, to modify them so that this jurisdiction shall
       henceforth devolve upon the Court which we are about to set up. Such
       an attitude will greatly help to extend the Court’s jurisdiction. I have
       already in my first speech pointed out the importance of the motion
       of the Brazilian delegation, (. . .) according to which States which
       desire to extend the scope of compulsory jurisdiction are permitted to
       do so by means of a simple declaration. (. . .) I have been, from the
       outset, a champion of the principle of compulsory jurisdiction. I can
       accept wholeheartedly the proposal now presented.” 42

  3. The Debates on the ICJ Statute of the United Nations Conference
      on International Organization and Subsidiary Organs (1945)
   27. In the new era inaugurated with the creation of the United Nations,
on the occasion of the UN Conference on International Organization, a
Committee of Jurists was appointed in 1945 to review the PCIJ Statute in
view of the adoption of the Statute of the new International Court of
Justice (ICJ). The Committee of Jurists entrusted a Subcommittee to
draft the text of, in particular, Article 36 (on compulsory jurisdiction). On
14 April 1945 the Subcommittee reported :

           “The Subcommittee, having given careful consideration to the
       v arious proposals that had been presented as well as to the views
        previously expressed by the different delegates before the Commit
        tee of Jurists, unanimously agreed upon the following :
               ‘The Court, being the principal judicial organ of the United
            Nations, should possess definite jurisdiction, if not in all cases,
            at least in those cases which are peculiarly susceptible of judicial
            settlement, namely, legal disputes.
               It may be recalled that as far back as 1920 compulsory
            jurisdiction was proposed by the Committee of Jurists which
  41   Cf. op. cit. supra note 33, p. 222.
  42   Ibid., p. 250.

183

250    convention on racial discrimination (diss. op. cançado trindade)

         drafted the existing Statute. The Governments were not prepared
         at that time to accept the proposal and the result was the adoption
         of what is known as the optional clause.
            The exercise of compulsory jurisdiction by the Court will promote
         the rule of law among nations. Public opinion throughout the
         world is strongly in favour of conferring on the Court compulsory
         jurisdiction.’” 43
  28. Moreover, the Subcommittee recalled that consensus among jurists
was in place at least since the 1920 negotiations, and that 45 out of
51 States had already accepted the optional clause. Shortly afterwards, on
19 April 1945, the Subcommittee further reported on the matter that :

         “The question of compulsory jurisdiction was debated at the time
      of the initial preparation of the Statute of the Court. Admitted by the
      Advisory Committee of Jurists, in 1920, compulsory jurisdiction was
      rejected in the course of the examination of the draft Statute by the
      League of Nations to yield place, on the successful initiative of a
      Brazilian jurist, to an optional clause permitting the States to accept
      in advance the compulsory jurisdiction of the Court in a domain
      delimited by Article 36. This debate has been resumed and very many
      delegations have made known their desire to see the compulsory juris-
      diction of the Court affirmed by a clause inserted in the revised Stat-
      ute so that, as the latter is to become an integral part of the United
      Nations Charter, the compulsory jurisdiction of the Court would be
      an element of the International Organization which it is proposed to
      institute at the San Francisco Conference. Judging from the prefer-
      ences thus indicated, it does not seem doubtful that the majority of
      the Committee was in favour of compulsory jurisdiction, but it has
      been noted that, in spite of this predominant sentiment, it did not
      seem certain, nor even probable, that all the nations whose participa-
      tion in the proposed International Organization appears as necessary,
      were now in a position to accept the rule of compulsory jurisdiction,
      and that the Dumbarton Oaks Proposals did not seem to affirm it ;
      some, while retaining their preferences in this respect, thought that
      the counsel of prudence was not to go beyond the procedure of the
      optional clause inserted in Article 36, which has opened the way to
      the progressive adoption, in less than 10 years, of compulsory juris-
      diction by many States which in 1920 refused to subscribe to it. Placed
      on this basis, the problem was found to assume a political character,
      and the Committee thought that it should defer it to the San Fran-
      cisco Conference.

  43 UN, Documents of the United Nations Conference on International Organization

(UNCIO), Vol. XIV (UN Committee of Jurists), San Francisco, 1945, doc. Jurist-43,
G/33, of 14 April 1945, pp. 286-287.

184

251    convention on racial discrimination (diss. op. cançado trindade)

         The suggestion was made by the Egyptian Delegation to seek a
      provisional solution in a system which, while adopting compulsory
      jurisdiction as the compulsory rule, would permit each State to escape
      it by a reservation. Rather than accept this view, the Committee has
      preferred to facilitate the consideration of the question by submitting
      two texts as suggestions rather than as a recommendation.
         One is submitted in case the Conference should not intend to affirm
      in the Statute the compulsory jurisdiction of the Court, but only to open
      the way for it by offering the States, if they did not think it apropos,
      acceptance of an optional clause on this subject. This text reproduces
      Article 36 of the Statute with an addition in case the United Nations
      Charter should make some provision for compulsory jurisdiction.
         The second text, also based on Article 36 of the Statute, establishes
      compulsory jurisdiction directly without passing through the channel
      of an option which each State would be free to take or not take. Thus
      it is simpler than the preceding one. It has even been pointed out that
      it would be too simple. The Committee, however, thought that the
      moment has not yet come to elaborate it further and see whether the
      compulsory jurisdiction thus established should be accompanied by
      some reservations, such as one concerning differences belonging to the
      past, one concerning disputes which have arisen in the present war, or
      those authorized by the General Arbitration Act of 1928. If the prin-
      ciple enunciated by this second text were accepted, it could serve as a
      basis for working out such provisions applying the principle which it
      enunciates with such modifications as might be deemed opportune.
         Some delegations desired to see inserted in Article 36 (1) the spe-
      cific statement that the jurisdiction of the Court extends to ‘justi
      ciable’ matters or those ‘of a legal nature’ which the parties might
      submit to it. Objections were made to the insertion of such a specific
      statement in a provision covering the case in which the jurisdiction
      of the Court depends on the agreement of the parties. Some refused
      to restrict in this way the jurisdiction of the Court. Fears were also
      expressed regarding difficulties in interpretation which such a provi-
      sion might cause, whereas practice has not shown any serious diffi-
      culties in the application of Article 36 (1). So it was not changed as
      indicated.” 44
  29. In the light of the aforementioned, the Subcommittee proposed, on
the occasion, a revision of the aforementioned Article 36, to be read as
follows :
         “1. The jurisdiction of the Court comprises all cases which the par-
      ties refer to it and all matters especially provided for in the Charter
      of the United Nations and in treaties and conventions in force.

   44 UNCIO, Vol. XIV (UN Committee of Jurists), doc. Jurist-61 (rev.), of 19 April 1945,

pp. 667-668.

185

252    convention on racial discrimination (diss. op. cançado trindade)

        2. The members of the United Nations and States parties to the
      Statute recognize as among themselves the jurisdiction of the Court
      as compulsory ipso facto and without special agreement in all or any
      of the classes of legal disputes concerning :
      (a) the interpretation of a treaty ;
      (b) any question of international law ;
      (c) the existence of any fact which, if established, would constitute a
          breach of an international obligation ;
      (d) the nature or extent of the reparation to be made for the breach
          of an international obligation.
        3. In the event of a dispute as to whether the Court has jurisdiction,
      the matter is settled by decision of the Court.” 45
   30. After further consideration, the Committee of Jurists acknow
ledged that this solution could prove unpalatable in the Assembly, and
then provided this latter with two alternative texts for Article 36 of the
Statute : one set forth the clause on compulsory jurisdiction, whereas the
other retained the mechanism of the optional clause 46. The two alterna-
tive texts were submitted to the IV Committee, which came to the conclu-
sion that the mechanism of the optional clause declaration was more likely
to meet the general agreement of the States parties ; it discarded the alter-
nate text, though acknowledging that the willingness to establish the ICJ’s
compulsory jurisdiction had prevailed within the Committee of Jurists 47.
   31. The support expressed, on distinct occasions, at the beginning of
the eras of both the League of Nations (1920) and of the United Nations
(1945), just reviewed, for the compulsory jurisdiction of the Hague Court,
should not pass unnoticed, or be forgotten, in our days, at this beginning
of the second decade of the twenty-first century. In this respect, the
debates of the UN Committee of Jurists, of 12-13 April 1945, were par-
ticularly illuminating. On the occasion, the delegate of Brazil (A. Camillo
de Oliveira) began the discussions on draft Article 36 by stating that : “the
time is right to make an amendment to this Article so that the jurisdiction
of the Court be obligatory for all categories of disputes enumerated in the
Article” 48. He added that, since 1920, when the optional clause was
inserted, “the idea of making the Court’s jurisdiction obligatory had
greatly advanced” 49.

   45 UNCIO, Vol. XIV (Committee of Jurists), doc. Jurist-43, G/33, of 14 April 1945,

p. 287.
   46 Cf. UNCIO, « Report on Draft of Statute of an International Court of Justice

Referred to in Chapter VII of the Dumbarton Oaks Proposals » (rapporteur, Jules Basde-
vant), Vol. XIV, 1945, pp. 821 and 839-842.
   47 Cf. UNCIO, « Compte-rendu du sous-comité IV/1 sur l’article 36 du Statut de la

Cour internationale de Justice », Vol. XIII, 1945, pp. 562-565.
   48 UNCIO, 1945, Vol. XIV (Committee of Jurists), doc. Jurist-34, G/25, of 12 April

1945, p. 146.
   49 Ibid., p. 147.

186

253      convention on racial discrimination (diss. op. cançado trindade)

  32. In the same sense, the delegate of China (Wang Chung-hui) stated
that “the exercise of compulsory jurisdiction by the Court would promote
the rule of law in international society” 50. On his turn, the delegate of
Turkey (C. Bilsel) declared that he “supported the thesis of the Brazilian
and Chinese delegates with regard to the revision of Article 36”, which he
regarded as “one of the most important Articles in the Statute” 51. And
the delegate of Turkey added that :
        “the time had come to accept the idea of compulsory international
        justice. The idea of international justice (. . .) has clearly progressed
        (. . .). The Committee of Jurists had proposed compulsory jurisdiction
        of the Court but (. . .) the Council of the League had not agreed, and
        (. . .) the Assembly had compromised through the optional clause.
        (. . .) The establishment of compulsory jurisdiction of the Court would
        represent a great step forward in international justice.” 52

   33. Further support to the Court’s compulsory jurisdiction came from
the delegate of Uruguay (J. A. Mora Otero), who stated that, having
“heard with satisfaction the different points of view endorsing compul-
sory jurisdiction”, he thought that “the Court of International Justice
should be competent to have jurisdiction in any international dispute that
has not been resolved by any other pacific means” 53. Yet, like what
had happened in 1920 (cf. supra), also in 1945 compulsory jurisdiction
had its opponents. The delegate of the [then] Soviet Union (USSR,
N. V. Novikov) declared that “such compulsory jurisdiction was abso-
lutely unacceptable to his Government” 54.
   34. And, for his part, the delegate of the United States (G. H. Hack-
worth) pondered, as Chairman, that he “should not like to see this group
so sharply divided” ; he then warned that, “if the signature of the Statute
should involve ipso facto the acceptance of the compulsory jurisdiction of
the Court, some States would find it difficult to become a party to the
Statute” 55. The IV Commission (Judicial Organization) of the 1945 San
Francisco Conference was duly informed of this “sharp division of opin-
ion” among participating States on the question of the compulsory juris-
diction of the Court, and the I Committee then decided to retain the
optional clause by 31 votes to 14 56.
   35. Despite the support expressed for compulsory jurisdiction, “[c]on-
cerns were raised, however, that pursuing the realization of this ideal

   50 UNCIO, op. cit supra note 48, p. 147.
   51 Ibid., p. 148.
   52 Ibid., p. 149.
   53 UNCIO, 1945, Vol. XIV (Committee of Jurists), doc. Jurist-66 (34), G/53, of 19 April

1945 (corrigendum), p. 161.
   54 Ibid., doc. Jurist-40, G/30, of 13 April 1945, p. 166.
   55 Ibid., p. 164.
   56 UNCIO, 1945, Vol. XIII (Commission IV — Judicial Organization), 1945, pp. 390-392.

187

254    convention on racial discrimination (diss. op. cançado trindade)

would jeopardize the possibility of achieving general agreement on both
the Statute of the Court and the Charter itself” 57. Accordingly, as
reported on 31 May 1945, “the system of optional jurisdiction seems
more likely at the moment to receive general support” 58. It had become
clear that the collegiality of participating States was not yet prepared in
1945, like a quarter of a century earlier (1920), to accept compulsory
jurisdiction for the Hague Court. Once again, in this particular case, iner-
tia prevailed, to the detriment of the full realization of justice.
   36. Shortly before the 1945 San Francisco Conference, M. O. Hudson
had recalled that Article 36 of the Statute of the PCIJ had, in 1920, been
“the result of the greatest contest waged in the creation of the Court”,
given that, at least within the 1920 Committee of Jurists, the view pre-
vailed, in succeeding preliminary projects, to confer on the PCIJ “a broad
compulsory jurisdiction” 59. The compromise subsequently found was the
optional clause proposed by Raul Fernandes (Brazil), drafted later 60.
And, one and a half decade after the 1945 San Francisco Conference,
R. P. Anand pointed out that by then it had become clear that “[t]he most
common method of accepting the compulsory jurisdiction of the Court
[was] through the acceptance of jurisdictional clauses in multilateral or
bilateral treaties” 61. Yet, “commentators on the Court and governmental
experts” remained “reluctant to acknowledge” the relevance of such com-
promissory clauses as “a basis for the Court’s compulsory jurisdiction” 62.
The emphasis continued to be laid on the optional clause of Article 36 (2)
of the Statute (even in the Court’s Yearbooks), despite the fact that “the
greater part of the Court’s compulsory jurisdiction” was derived from the
compromissory clauses themselves 63.

        III. The Optional Clause of Compulsory Jurisdiction :
           From the Professed Ideal to a Distorted Practice

  37. As a result of those prolonged debates of 1920, the ingenuous for-
mula of Article 36 (2) of the Statute — of the PCIJ, and, later on, also the
ICJ — was adopted, overcoming the difference between those who sup-
ported the prompt recognition of the compulsory jurisdiction of the
future PCIJ, and those — the representatives of the more powerful States
— who opposed that, objecting that one had gradually to come to trust

    57 UNCIO, 1945, Vol. XIII (Commission IV — Judicial Organization), 1945,

doc. 702-IV/1/55, of 31 May 1945, p. 564 [translation by the Registry].
    58 Ibid., p. 563 [translation by the Registry].
    59 M. O. Hudson, The Permanent Court of International Justice, 1920-1942 — A Trea-

tise, N.Y., MacMillan Co., 1943, p. 190.
    60 Ibid., pp. 192-193.
    61 R. P. Anand, Compulsory Jurisdiction of the International Court of Justice, New

Delhi/Bombay, Asia Publishing House, 1961, p. 134.
    62 Ibid., p. 139.
    63 Ibid., pp. 139-140.

188

255     convention on racial discrimination (diss. op. cançado trindade)

the international tribunal to be created, before conferring upon it com-
pulsory jurisdiction tout court. The Statute, approved on 13 December
1920, entered into force on 1 September 1921 64.
   38. At that time, the decision that was taken constituted the initial step
that, during the period of 1921-1940, contributed to attract the acceptance
of the compulsory jurisdiction — under the optional clause — of the PCIJ
by a total of 45 States 65. The formula of Raul Fernandes 66, firmly supported
by the Latin-American States 67, was incorporated into the Statute of the
PCIJ ; it was intended to pave the way for further development towards
compulsory jurisdiction, and served its purpose in the following two decades.
   39. Subsequently, at the San Francisco Conference of 1945, the possi-
bility was contemplated to take a step forward, with an eventual auto-
matic acceptance of the compulsory jurisdiction of the new ICJ.
Nevertheless, the great powers — in particular the Soviet Union and the
United States — were opposed to this evolution, sustaining the retention,
in the Statute of the new ICJ, of the same “optional clause of compulsory
jurisdiction” of the Statute of 1920 of the predecessor PCIJ. The rappor-
teur of the Commission of Jurists of 1945, Jules Basdevant, pointed out
that, although the majority of the members of the Commission favoured
the automatic acceptance of the compulsory jurisdiction, there was no
political will at the Conference (and nor in the Dumbarton Oaks pro
posals) to take this step forward 68.

   64 For an account of the approval of the Statute, cf., inter alia, J. C. Witenberg, L’orga-

nisation judiciaire, la procédure et la sentence internationales. Traité pratique, Paris, Pedone,
1937, pp. 22-23 ; L. Gross, “Compulsory Jurisdiction under the Optional Clause : History
and Practice”, The International Court of Justice at a Crossroads (ed. L. F. Damrosch),
Dobbs Ferry/N.Y., ASIL/Transnational Publs., 1987, pp. 20-21.
   65 Cf. the account of a Judge of the old PCIJ, M. O. Hudson, International Tribunals

— Past and Future, Washington, Carnegie Endowment for International Peace/Brookings
Institution, 1944, pp. 76-78. That total of 45 States represented, in reality, a high propor-
tion, at that epoch, considering that, at the end of the 1930s, 52 States were members of the
League of Nations (of which the old PCIJ was not part, distinctly from the ICJ, which is
the main judicial organ of the United Nations, and whose Statute forms an organic whole
with the UN Charter itself).
   66 In his book of memories published in 1967, Raul Fernandes revealed that the

Committee of Jurists of 1920 was faced with the challenge of establishing the basis of
the jurisdiction of the PCIJ and, at the same time, of safeguarding and reaffirming the
principle of the juridical equality of the States ; cf. R. Fernandes, Nonagésimo Aniversário
— Conferências e Trabalhos Esparsos, Vol. I, Rio de Janeiro, M.R.E., 1967, pp. 174-175.
   67 J.-M. Yepes, “La contribution de l’Amérique latine au développement du droit inter-

national public et privé”, 32 Recueil des cours de l’Académie de droit international de La
Haye (1930), p. 712 ; F.-J. Urrutia, “La codification du droit international en Amérique”,
22 Recueil des cours de l’Académie de droit international de La Haye (1928), pp. 148-149 ;
and cf., more recently, S. A. Alexandrov, Reservations in Unilateral Declarations Accepting
the Compulsory Jurisdiction of the International Court of Justice, Dordrecht, Nijhoff, 1995,
pp. 7-8.
   68 Cf. the account of R. P. Anand, Compulsory Jurisdiction . . ., op. cit. supra note 61,

pp. 38-46 ; and cf. also, on the issue, S. Rosenne, The Law and Practice of the International
Court, Vol. I, Leyden, Sijthoff, 1965, pp. 32-36 ; Ian Brownlie, Principles of Public Inter-
national Law, 6th ed., Oxford University Press, 2003, pp. 677-678 ; O. J. Lissitzyn, The

189

256    convention on racial discrimination (diss. op. cançado trindade)

   40. Consequently, the same formulation of 1920, which corresponded
to a conception of international law of the beginning of the twentieth
century, was maintained in the present Statute of the ICJ. Due to the
intransigent position of the more powerful States, a unique opportunity
was lost to overcome the lack of automatism of the international jurisdic-
tion and to foster a greater development of the compulsory jurisdiction of
the international tribunal. It may be singled out that all this took place at
the level of purely inter-State relations. The formula of the optional clause
of compulsory jurisdiction (of the ICJ) which exists today, is nothing
more than a scheme of the 1920s, stratified in time 69, and which, rigor-
ously speaking, no longer corresponds to the needs of the international
contentieux not even of a purely inter-State dimension 70.
   41. And several of the States which have utilized it, have made a dis-
torted use of it, denaturalizing it, in introducing restrictions which mili-
tate against its rationale and deprive it of all efficacy. In reality, almost
two-thirds of the declarations of acceptance of the aforementioned clause
have been accompanied by limitations and restrictions which have ren-
dered them “practically meaningless” 71. One may, thus, seriously ques-
tion whether the optional clause keeps on serving the same purpose which
inspired it at the epoch of the PCIJ. Curiously enough, not until more
recently did the compromissory clauses, pertaining to the compulsory
jurisdiction of the ICJ, begin to attract greater attention in expert writing.
   42. The rate of acceptance of the optional clause in the era of the ICJ
is proportionally inferior to that of the epoch of its predecessor, the PCIJ.
Furthermore, throughout the years, the possibility opened by the optional
clause of acceptance of the jurisdiction of the international tribunal
became, in fact, object of excesses on the part of some States, which only
accepted the compulsory jurisdiction of the ICJ in their own terms, with
all kinds of limitations 72. Thus, it is not at all surprising that, already by

International Court of Justice, N.Y., Carnegie Endowment for International Peace, 1951,
pp. 61-64.
    69 For expressions of pessimism as to the practice of States under that optional clause,

at the end of the 1970s, cf. J. G. Merrills, “The Optional Clause Today”, 50 British Year-
book of International Law (1979), pp. 90-91, 108, 113 and 116.
    70 Regretting (as former President of the ICJ) that this outdated position has insu-

lated the Hague Court from the great corpus of contemporary international law, cf.
R. Y. Jennings, “The International Court of Justice after Fifty Years”, 89 American
Journal of International Law (1995), p. 504.
    71 G. Weissberg, “The Role of the International Court of Justice in the United Nations

System : The First Quarter Century”, The Future of the International Court of Justice (ed.
L. Gross), Vol. I, Dobbs Ferry N.Y., Oceana Publs., 1976, p. 163 ; and, on the feeling
of frustration that this generated, cf. ibid., pp. 186-190. Cf. also Report on the Connally
Amendment — Views of Law School Deans, Law School Professors, International Law
Professors (compiled under the auspices of the Committee for Effective Use of the Interna-
tional Court by Repealing the Self-Judging Reservation), New York, [1961], pp. 1-154.
   72 Some of them gave the impression that they thus accepted that aforementioned

optional clause in order to sue other States before the ICJ, trying, however, to avoid them-
selves to be sued by other States ; J. Soubeyrol, “Validité dans le temps de la déclara-

190

257    convention on racial discrimination (diss. op. cançado trindade)

the mid-1950s, one began to speak openly of a decline of the optional
clause 73.
   43. In their classic studies on the basis of the international jurisdiction,
C. W. Jenks and C. H. M. Waldock warned, already in the decades of the
fifties and the sixties, as to the grave problem presented by the insertion,
by the States, of all kinds of limitations and restrictions in their instru-
ments of acceptance of the optional clause of compulsory jurisdiction (of
the ICJ) 74. Although those limitations had never been foreseen in the for-
mulation of the optional clause, States, in the face of such a legal vacuum,
have felt, nevertheless, “free” to insert them. Such excesses have under-
mined, in a contradictory way, the basis itself of the system of inter
national compulsory jurisdiction.
   44. Those excesses occurred precisely because, in elaborating the Stat-
ute of the new ICJ, one failed to follow the evolution of the international
community. One abandoned the very basis of the compulsory jurisdiction
of the ICJ to an outdated voluntarist conception of international law,
which had prevailed at the beginning of the last century, despite the warn-
ings of lucid jurists of succeeding generations as to its harmful conse-
quences to the conduction of international relations. Yet, a considerable
part of the legal profession continued to stress the overall importance of
individual State consent, regrettably putting it well above the imperatives
of the realization of justice at international level.

    IV. The Old Ideal of Automatism of Compulsory Jurisdiction
                        of the Hague Court

   45. As well pointed out in a classic study on the matter, the instru-
ments of acceptance of the contentious jurisdiction of an international
tribunal should be undertaken “on terms which ensure a reasonable meas

tion d’acceptation de la juridiction obligatoire”, 5 Annuaire français de droit international
(1959), pp. 232-257, esp. p. 233.
    73 C. H. M. Waldock, “Decline of the Optional Clause”, 32 British Yearbook of Inter

national Law (1955-1956), pp. 244-287. And, on the origins of this decline, cf. the dissenting
opinion of Judge Guerrero in the Norwegian Loans case (Judgment of 6 July 1857),
I.C.J. Reports 1957, pp. 69-70.
    74 Examples of such excesses have been the objections of domestic jurisdiction (domestic

jurisdiction/compétence nationale exclusive) of States, the foreseeing of withdrawal at any
moment of the acceptance of the optional clause, the foreseeing of subsequent modification
of the terms of acceptance of the clause, and the foreseeing of insertion of new reserva-
tions in the future ; cf. C. W. Jenks, The Prospects of International Adjudication, London,
Stevens, 1964, p. 108, and cf. pp. 113, 118 and 760-761 ; C. H. M. Waldock, “Decline of
the Optional Clause”, op. cit. supra note 73, p. 270 ; and for criticisms of those excesses,
cf. A. A. Cançado Trindade, “The Domestic Jurisdiction of States in the Practice of the
United Nations and Regional Organisations”, 25 International and Comparative Law
Quarterly (1976), pp. 744-751.

191

258    convention on racial discrimination (diss. op. cançado trindade)

ure of stability in the acceptance of the jurisdiction of the Court” 75, that
is, in the terms expressly provided for in the corresponding treaties them-
selves, necessarily bearing in mind their nature and substance. As pointed
out by C. W. Jenks almost half a century ago, the foundation of compul-
sory jurisdiction is, ultimately, the confidence in the rule of law at inter-
national level 76. While full confidence is still lacking, not much progress
is bound to be achieved in the present domain of international jurisdic-
tion. In the last 90 years, the advances in this particular domain could
have been much greater if State practice would not have undermined the
purpose which inspired the creation of mechanisms of compulsory juris-
diction (optional clause and compromissory clauses) for the PCIJ and the
ICJ, so as to achieve the submission to law of State strategic interests
underlying international disputes, and so as to secure the development in
the realization of justice at international level.

   46. The time has come to overcome definitively the regrettable lack of
automatism of the international jurisdiction, after decades of operation of
the Hague Court. With the distortions of State practice on the matter,
States face today a dilemma which should have been overcome a long
time ago : either they return to the voluntarist conception of international
law, abandoning for good the hope in the primacy of law over what they
regard as their own strategic interests 77, or else they retake and achieve
with determination the ideal of construction of an international commu-
nity with greater cohesion and institutionalization in the light of law and
in search of justice.

  47. The plea for compulsory jurisdiction has been duly expressed in
expert writing over the last nine decades, since the adoption of the PCIJ
Statute. Shortly after the completion in 1920 of the work of the League’s

    75 C. W. Jenks, The Prospects of International Adjudication, op. cit. supra note 74,

pp. 760-761.
    76 Ibid., pp. 101, 117, 757, 762 and 770.
    77 Cf. a warning of Ch. de Visscher, Aspects récents du droit procédural de la Cour

internationale de Justice, Paris, Pedone, 1966, p. 204 ; and cf. also L. Delbez, Les principes
généraux du contentieux international, Paris, LGDJ, 1962, pp. 68, 74 and 76-77. For subse-
quent criticisms by two former Presidents of the ICJ of the unsatisfactory and bad use
made by the States of the mechanism of the optional clause (of the compulsory jurisdiction
of the ICJ) of the Statute of the Court, cf. R. Y. Jennings, “The International Court of
Justice . . .”, op. cit. supra note 70, p. 495 ; and E. Jiménez de Aréchaga, “International Law
in the Past Third of a Century”, 159 Recueil des cours de l’Académie de droit international
de La Haye (1978), pp. 154-155, And cf. further criticisms by H. W. Briggs, “Reservations
to the Acceptance of Compulsory Jurisdiction of the International Court of Justice”, 93
Recueil des cours de l’Académie de droit international de La Haye (1958), p. 273. And cf., in
general, J. Sicault, “Du caractère obligatoire des engagements unilatéraux en droit interna-
tional public”, 83 Revue générale de droit international public (1979), pp. 633-688.

192

259    convention on racial discrimination (diss. op. cançado trindade)

Advisory Committee of Jurists, B. C. J. Loder published an essay in
which he commented that :

         “There was a desire in the world that justice should be obtainable,
      and for that reason the organ [the PCIJ] was created. Its members are
      judges, not amiable compositeurs. The words ‘compulsory jurisdic-
      tion’ mean that the plaintiff can summon the defending party without
      previous agreement between the two, even against the latter’s will, and
      the Court is, therefore, competent and even bound to adjudicate,
      whether the offending party puts in an appearance or not.

         The answer to that question is given in the very name ‘Court of
      Justice’. The peculiar characteristic of a Court of Justice, in contrast
      with one of arbitration, is that the competency of the judges is not
      derived from the voluntary agreement of the disputing parties, but
      from elsewhere. (. . .) [I]t is from the very nature of the Court itself
      that the compulsory jurisdiction is derived.” 78
  48. B. C. J. Loder, who was promptly to become — by mid-February
1922 — the first President of the PCIJ, expanded on the point he made in
his account :
         “Although on the one hand it was perceived that the opposition of
      the Council to the proposal of the Committee of Jurists should be
      respected, on the other hand it would not do to overlook the wishes
      of the great majority, for they saw in compulsory jurisdiction the only
      guarantee of enforcing justice. The condition for a satisfactory solu-
      tion was to find a compromise between these two views.

        The honour of having found this is due to the delegate from Brazil,
      Senhor Fernandes, one of the ten jurists, a man as sagacious as he is
      energetic. To cast this solution into a form acceptable to everybody
      was the task of the Sub-Commission of the III Committee.

        Everything is now embodied in a new Article 36.” 79
   49. Shortly afterwards, in a monograph published in 1924, Nico-
las Politis, in recalling the historical development from private justice to
public justice, advocated the evolution, at international level, from
optional justice to compulsory justice 80. Two decades later, in another
monograph, N. Politis again pondered that the “règles du droit des gens
peuvent, moyennant certaines conditions, faire l’objet d’un contrôle

   78 B. C. J. Loder, “The Permanent Court of International Justice and Compulsory

Jurisdiction”, 2 British Yearbook of International Law (1921-1922), pp. 11-12.
   79 Ibid., p. 24.
   80 Cf. N. Politis, La justice internationale, Paris, Librairie Hachette, 1924, pp. 7-255,

esp. pp. 193-194 and 249-250.

193

260     convention on racial discrimination (diss. op. cançado trindade)

juridictionnel” 81. At the time of the adoption of the ICJ Statute in 1945
— like at that of the adoption of the Statute of its predecessor the PCIJ
in 1920 — a key issue remained that of compulsory jurisdiction. To that
end, both Courts, the PCIJ and the ICJ, had a wide horizon before them-
selves, and beheld the optional clause as well as compromissory clauses as
basis for compulsory jurisdiction.
   50. Shortly after the adoption of the ICJ Statute, E. Hambro suggested
that compromissory clauses in multilateral and bilateral treaties were
“probably” the “most common way” for acceptance of the compulsory
jurisdiction of the ICJ 82. A couple of years later, in the early 1950s, the
point was made that one could envisage a “voluntary” acceptance of such
compulsory jurisdiction in so far as the ICJ Statute itself had been “vol-
untarily accepted” ; that was the moment of expression of consent, and
the Court retained the power and duty to address motu proprio the issue
of jurisdiction, and interpretation ought to await the jurisprudential con-
struction of the Court 83.

  51. Throughout the 1950s, for half a decade (1954‑1959), the issue of
the compulsory jurisdiction of the ICJ was examined by the Institut de
droit international. In its Aix-en-Provence (1954) and Granada (1956)
sessions, the discussions (rapporteur, P. Guggenheim) centred on the elab-
oration of a model clause of compulsory jurisdiction of the ICJ 84. At the
end of that exercise, in 1956, the Institut adopted a recommendation to
States and international organizations to adopt, in the elaboration of
multilateral or bilateral treaties, a clause conferring jurisdiction (along
the lines it indicated) upon the ICJ in any dispute relating to the inter
pretation or application of those treaties 85.

  52. In its Amsterdam (1957) and Neuchâtel (1959) sessions, the debates
at the Institut (rapporteur, C. W. Jenks) focused attention on the larger
topic of compulsory jurisdiction of international courts and tribunals
(encompassing judicial and arbitral instances) 86. At the end of that new
   81 N. Politis, La morale internationale, N.Y., Brentano’s, 1944, p. 67. And he added :

“A la différence des profits de l’injustice et de l’illégalité, qui, s’ils peuvent être rapides, ne
sont pas assurés de durer, ceux de la justice et de la légalité, sans doute plus lents, sont
certainement plus durables” ; ibid., pp. 161-162.
   82 E. Hambro, “Some Observations on the Compulsory Jurisdiction of the Inter

national Court of Justice”, 25 British Yearbook of International Law (1948), p. 153.
   83 R. C. Lawson, “The Problem of the Compulsory Jurisdiction of the World Court”,

46 American Journal of International Law (1952), pp. 234 and 238, and cf. pp. 219, 224
and 227.
   84 Cf. reports and following debates in : 45 Annuaire de l’Institut de droit international

(1954)-I, pp. 310-406 ; and ibid., Vol. 46 (1956), pp. 178-264.
   85 Cf. ibid., Vol. 46 (1956), pp. 360-361.
   86 Cf. reports and following observations and debates in : ibid., Vol. 47 (1957)-I,

pp. 34-322 ; and ibid., Vol. 48 (1959)-II, pp. 55-177.

194

261     convention on racial discrimination (diss. op. cançado trindade)

exercise, in 1959 the Institut adopted a resolution in support of the com-
pulsory jurisdiction of international courts and tribunals. In its preamble,
noting with concern that the evolution of compulsory jurisdiction was
already lagging behind the needs of international justice, the resolution
pondered that “submission to law” (“respect du droit”) through accep-
tance of compulsory jurisdiction was “an essential complement to the
renunciation of recourse to force in international relations” 87.
   53. In order to overcome such an unsatisfactory situation, the resolution
inter alia called for the development of the practice of insertion into gen-
eral treaties or conventions of a clause, binding on all States parties, of
submission of disputes relating to the interpretation or application of
such treaties or conventions to international courts and tribunals, thus
fostering greater acceptance of compulsory jurisdiction, in particular of
the ICJ 88. In its operative part, the 1959 resolution of the Institut pro-
vided that :
         “With a view to ensuring the effective application and the uniform
      interpretation of general conventions, it is important to maintain and
      develop the practice of inserting in such conventions a clause, binding
      on all the parties, which makes it possible to submit disputes relating
      to the interpretation or application of the convention either to the
      International Court of Justice by unilateral application or to another
      international court or arbitral tribunal.” 89
   54. The Institut’s resolution was thinking of the future, in the light —
above all — of the imperatives of international justice. This remained a
concern, in the years to follow, of those devoted to the study of the mat-
ter at issue. Thus in an monograph published the following year (1960),
for example, B. V. A. Röling observed that “[i]nternational courts and tri-
bunals consummated the incorporation of the standard of civilization in
international law by holding that non-compliance with it involved inter-
national responsibility” 90.

  55. Subsequently, by the end of the sixties, despite the alleged “decline”
of the optional clause of the ICJ Statute (cf. supra), one decade after
the adoption by the Institut de droit international (in 1959) of the afore-
mentioned resolution, C. W. Jenks wrote that :

        “The problem of compulsory jurisdiction (. . .) remains one of
      the central problems of world organization. (. . .) A larger measure

   87 “[U]n complément essentiel à la renonciation au recours à la force dans les relations

internationales” ; cited in : 48 Annuaire de l’Institut de droit international (1959)-II, p. 358.
   88 Cf. ibid., pp. 358-359.
   89 Paragraph 4 of the aforementioned resolution ; cited in : ibid., pp. 360-361 [transla-

tion by the Registry].
   90 B. V. A. Röling, International Law in an Expanded World, Amsterdam, Djambatan

N.V., 1960, p. 39.

195

262    convention on racial discrimination (diss. op. cançado trindade)

      of compulsory jurisdiction remains a fundamental element in the pro-
      gress of the rule of law among nations. (. . .) The progress of compul-
      sory jurisdiction presupposes a parallel progress of the substantive
      law in adjusting itself to the changing needs of a changing society.” 91

   56. Contemporary international law counts on multilateral conven-
tions — as aptly pointed out by Kéba Mbaye in the late eighties — that
safeguard the “vital interests” not of States, but of humankind ; this being
so, and given their importance,
      “it is perfectly justified that the States which are members of a given
      community, and to which the provisions of the said convention are
      applicable, be allowed to take action in order to conduct a sort of
      objective monitoring aimed at safeguarding the interests in question” 92.
The “intérêt pour agir” would then develop in the rhythm of evolution of
the organized international society itself, which has general interests of its
own, generating duties on the part of States vis-à-vis itself 93. This would
amount to going beyond individual State consent, when fundamental
human rights — of concern to the international community as a whole
— are at stake.
   57. Compromissory clauses (existing for many years, in both the PCIJ
and ICJ eras) 94, inserted into numerous treaties, by conferring jurisdic-
tion on international tribunals such as the Hague Court to settle disputes
concerning their interpretation and application, have contributed (when-
ever properly interpreted and applied) to a broader acceptance of com-
pulsory jurisdiction. From the start, compromissory clauses were in fact
regarded as a means towards attaining compulsory jurisdiction.

   58. As they were inserted, e.g., already in the inter-war period in the
first half of the twentieth century, in the minorities and the mandates
treaties for their interpretation and application, the PCIJ soon had the
occasion to pronounce upon them (cf. infra), having pursued a teleo
logical approach. The ICJ, likewise, has not interpreted compromissory
clauses strictly, so as to achieve the peaceful settlement of the disputes at
issue 95. The fact is that, although consent could be expressed in distinct

   91 C. W. Jenks, The World beyond the Charter, London, G. Allen and Unwin, 1969,

p. 166.
   92 Kéba Mbaye, “L’intérêt pour agir devant la Cour internationale de Justice”, 209

Recueil des cours de l’Académie de droit international de La Haye (1988), p. 271 [translation
by the Registry].
   93 Ibid., pp. 340-341.
   94 Cf., on such compromissory clauses, e.g., H. M. Cory, Compulsory Arbitration of

International Disputes, N.Y., Columbia University Press, 1932 [reprint 1972], Chap. VI,
pp. 160-191.
   95 L. B. Sohn, “Settlement of Disputes relating to the Interpretation and Applica-

tion of Treaties”, 150 Recueil des cours de l’Académie de droit international de La Haye
(1976), pp. 234, 245-249 and 256. Of more than 4,800 treaties registered with the League

196

263     convention on racial discrimination (diss. op. cançado trindade)

ways (ante hoc, ad hoc, or post hoc), States came to accept treaties
containing compromissory clauses, with the underlying hope to count
 on compulsory jurisdiction 96, thus enhancing the rule of law also at inter-
 national level.

   59. Despite the initial high expectations, State practice was to disclose
incongruities as well, and hesitations at times to accept unqualified com-
pulsory jurisdiction in inter-State disputes, though there seems to be an
increasing awareness of the need to have recourse to judicial settlement of
disputes 97. A more systematic inclusion in treaties and invocation of such
jurisdictional clauses would contribute much further to widen the scope
of compulsory jurisdiction, on a world-wide basis 98, providing that such
clauses are appropriately interpreted and applied. Such expansion is
bound to occur to the extent that States realize that it is ultimately in
their own interest, and in the common or general interest, to have their
disputes normally settled by judicial means. This latter is the most per-
fected way of peaceful settlement, for all that it affords : preexisting rules,
rigour and juridical security.

   60. Compulsory jurisdiction is, ultimately, an expression of the rule of
law at international level, conducive to a more cohesive international
legal order inspired and guided by the imperative of the realization of
justice. Despite all the attention that the matter at issue attracted from
jurists of succeeding generations, and all the advances achieved, it seems,
however, that there is still a long way to go to attain the ideal of automa-
tism of compulsory jurisdiction in the inter-State contentieux, at least
when fundamental human rights are at stake. This old ideal should not be
despised or minimized by the static partisans of State sovereignty : there
is nothing more invincible than an ideal that has not been attained, it
passes from one generation to another, it is always present in the minds
of lucid jurists, even if forming a minority, waiting for the conjunction of
stars for it to be attained. Compulsory jurisdiction is, in fact, no longer an
academic dream, it has already become a reality in a few legal regimes.

of Nations (period 1920-1946) and 12,500 treaties registered with the United Nations in
its first three decades (period 1946-1976), some 4,000 included compromissory clauses, so
as to avoid the need to resort to and reach a special compromis after a dispute had arisen ;
ibid., pp. 259 and 268.
   96 R. Szafarz, The Compulsory Jurisdiction of the International Court of Justice,

Dordrecht, Nijhoff, 1993, pp. 4, 31-32, 83 and 86, and cf. pp. 25 and 94.
   97 Cf. R. P. Anand, “Enhancing the Acceptability of Compulsory Procedures of Inter-

national Dispute Settlement”, 5 Max Planck Yearbook of United Nations Law (2001),
pp. 5-7, 11, 15 and 19.
   98 C. W. Jenks, The Prospects . . ., op. cit. supra note 74, p. 761, and cf. pp. 109 and 111.

197

264    convention on racial discrimination (diss. op. cançado trindade)

   61. International jurisdiction is becoming, in our days, an imperative
of the contemporary international legal order itself, and compulsory
jurisdiction responds to a need of the international community in our
days ; although this latter has not yet been fully achieved, some advances
have been made in the last decades 99. The Court of Justice of the Euro-
pean Communities provides one example of supranational compulsory
jurisdiction, though limited to community law or the law of integration.
The European Convention on Human Rights, after the entry into force
of Protocol No. 11 on 1 November 1998, affords another conspicuous
example of automatic compulsory jurisdiction. The International Criminal
Court is the most recent example in this regard ; although other means
were contemplated throughout the travaux préparatoires of the 1998
Rome Statute (such as cumbersome “opting in” and “opting out” proce-
dures), in the end, compulsory jurisdiction prevailed, with no need for
further expression of consent on the part of States parties to the Rome
Statute. This was a significant decision, enhancing international jurisdic-
tion.

   62. The system of the 1982 UN Convention on the Law of the Sea, in
its own way, moves beyond the traditional regime of the optional clause
of the ICJ Statute. It allows States parties to the Convention the option
between the International Tribunal for the Law of the Sea, or the ICJ, or
else arbitration (Art. 287) ; despite the exclusion of certain matters, the
Convention succeeds in establishing a compulsory procedure containing
coercitive elements ; the specified choice of procedures at least secures
law-abiding settlement of disputes under the UN Law of the Sea Conven-
tion 100. In addition to the advances already achieved to this effect, refer-
ence could also be made to recent endeavours in the same sense 101.

    99 H. Steiger, “Plaidoyer pour une juridiction internationale obligatoire”, in Theory

of International Law at the Threshold of the 21st Century — Essays in Honour of
K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996, pp. 818, 821-822 and 832.
And cf. R. St. John MacDonald, “The New Canadian Declaration of Acceptance of the
Compulsory Jurisdiction of the International Court of Justice”, 8 Canadian Yearbook of
International Law (1970), pp. 21, 33 and 37. In support of the need for “a system of general
compulsory and binding dispute settlement procedures”, cf. further M. M. T. A. Brus,
Third Party Dispute Settlement in an Interdependent World, Dordrecht, Nijhoff, 1995,
p. 182.
    100 L. Caflisch, “Cent ans de règlement pacifique des différends interétatiques”,

288 Recueil des cours de l’Académie de droit international de La Haye (2001), pp. 365-366
and 448-449 ; J. Allain, “The Future of International Dispute Resolution — The Conti-
nued Evolution of International Adjudication”, in Looking Ahead : International Law
in the 21st Century (Proceedings of the 29th Annual Conference of the Canadian
Council of International Law, Ottawa, October 2000), The Hague, Kluwer, 2002, pp. 61-
62.
    101 One such example is found in the proposals for a draft protocol to the American

Convention on Human Rights, which I prepared as rapporteur of the IACtHR, which inter

198

265    convention on racial discrimination (diss. op. cançado trindade)

   63. These illustrations suffice to disclose that compulsory jurisdiction is
already a reality, at least in some circumscribed domains of international
law, as indicated above. International compulsory jurisdiction is, by all
means, a juridical possibility. If it has not yet been attained on a world-
wide level, in the inter-State contentieux, this cannot be attributed to an
absence of juridical viability, but rather to misperceptions of its role, or
simply to a lack of conscience as to the need to widen its scope. Compul-
sory jurisdiction is a manifestation of the recognition that international
law, more than voluntary, is indeed necessary.

      V. The Relationship of the Optional Clause/Compromissory
               Clauses with the Nature and Substance
                    of the Corresponding Treaties

   64. Neither the optional clause, nor compromissory clauses, can be
properly considered outside the framework of compulsory jurisdiction.
This latter is what is aimed at. Hence the attention that I devote to the
matter in this dissenting opinion, in the present case concerning the Appli-
cation of the International Convention on the Elimination of All Forms of
Racial Discrimination. Moreover, compromissory clauses are to be fur-
ther considered, in their ordinary meaning, also in their relationship with
the nature and substance of the corresponding treaties wherein they are
enshrined. The acknowledgement of the special nature of human rights
treaties has much contributed to this hermeneutic exercise. Advances,
to the benefit of human beings, have here been achieved due to the impact
of the international law of human rights upon public international law.

  65. Despite the undeniable advances experienced or attained by the
ideal of compulsory jurisdiction in the domain of the international law of
human rights, the picture appears somewhat distinct in the sphere of
purely inter-State relations : it is hard to escape the assessment that,
herein, compulsory jurisdiction has made a rather modest progress in
recent decades. Contemporary international law itself has slowly, but
gradually evolved, at least putting limits to the manifestations of a State

alia advocates an amendment to Article 62 of the American Convention so as to render the
jurisdiction of the IACtHR in contentious matters automatically compulsory upon ratifi-
cation of the Convention. Cf. A. A. Cançado Trindade, Informe : Bases para un Proyecto
de Protocolo a la Convención Americana sobre Derechos Humanos, para Fortalecer Su
Mecanismo de Protección, Vol. II, 2nd ed., San José, Costa Rica, Inter-American Court of
Human Rights, 2003, pp. 1-64.

199

266    convention on racial discrimination (diss. op. cançado trindade)

voluntarism, which revealed itself as belonging to another era 102. The
point cannot pass unnoticed here, as the present case concerning the
Application of the International Convention on the Elimination of All Forms
of Racial Discrimination, opposing Georgia to the Russian Federation
before this Court, concerns the compromissory clause enshrined in a
human rights treaty.

   66. The methodology of interpretation of human rights treaties 103,
which will be addressed in the following paragraphs, bears in mind, and
is guided by, the rules of treaty interpretation enunciated in Articles 31-33
of the two Vienna Conventions on the Law of Treaties (of 1969 and
1986). The general rule of treaty interpretation (Article 31 (1)) comprises
the elements of good faith, the text, the context, and the object and pur-
pose of the treaty at issue. Whenever the interpretation — pursuant to
Article 31 — leads to a manifestly unreasonable result, leaving the mean-
ing ambiguous or obscure, Article 32 provides that resort can be made to
supplementary means of interpretation, such as recourse to the travaux
préparatoires 104.
   67. In addressing the interpretation of human rights treaties, in my
separate opinion in the Judgment (of 31 January 2006) of the Inter-
American Court of Human Rights (IACtHR) in the case of the Massacre
of Pueblo Bello, concerning Colombia, I deemed it fit to ponder that :

         “The organs of international supervision of human rights, without
      departing from the canons of the general rule of interpretation of
      treaties (Article 31 (1) of the two Vienna Conventions on the Law of
      Treaties, 1969 and 1986), have developed a teleological interpretation,
      with emphasis on the fulfilment of the object and purpose of human
      rights treaties, as the most appropriate to secure an effective protec-
      tion of those rights. Ultimately, underlying the aforementioned gen-
      eral rule of interpretation set forth in the two Vienna Conventions

   102 When this outlook still prevailed to some extent, in a classic book published in

1934, Georges Scelle, questioning it, pointed out that the self-attribution of discretionary
competence to the rulers, and the exercise of functions according to the criteria of the
power-holders themselves, were characteristics of a not much evolved, imperfect, and still
almost anarchical international society ; G. Scelle, Précis de droit des gens — Principes et
systématique, Part II, Paris, Rec. Sirey, 1934 (reed. 1984), pp. 547-548. And cf., earlier
on, to the same effect, L. Duguit, L’Etat, le droit objectif et la loi positive, Vol. I, Paris,
A. Fontemoing Ed., 1901, pp. 122-131 and 614.
    103 As can be inferred from the vast international case law in this respect, analysed in

detail in : A. A. Cançado Trindade, El Derecho Internacional de los Derechos Humanos en
el Siglo XXI, 2nd rev. ed., Santiago/Mexico/Buenos Aires/Barcelona, Editorial Jurídica de
Chile, 2006, pp. 17-60.
    104 Article 33 adds directives as to the interpretation of treaties concluded in two or

more languages.

200

267    convention on racial discrimination (diss. op. cançado trindade)

      (Article 31 (1)) is the principle, which counts on wide jurisprudential
      support, whereby one ought to secure to the conventional provisions
      their appropriate effects (the so-called effet utile). This principle — ut
      res magis valeat quam pereat —, whereby the interpretation is to
      secure appropriate effects to a treaty, has, in the domain of human
      rights, assumed particular importance in the determination of the
      wide scope of the conventional obligations of protection 105.

         Such interpretation is, in effect, that which most faithfully reflects
      the special nature of human rights treaties, the objective character of
      the obligations which they stipulate, and the autonomous meaning of
      the concepts enshrined therein (distinct from the corresponding con-
      cepts in the framework of the national legal systems). As human rights
      treaties incorporate concepts with an autonomous meaning, ensuing
      from jurisprudential evolution, and as the object and purpose of
      human rights treaties are distinct from the classic treaties (as they
      pertain to the relations between the State and the persons under its
      jurisdiction), the classic postulates of interpretation of treaties in gen-
      eral adjust themselves to this new reality.” 106 (Paras. 50-51.)

   68. Accordingly, the interpretation of human rights treaties — victim-
oriented as such treaties are — tends, quite understandably and correctly
in my perception, to place greater weight on the realization of their object
and purpose, so as to secure protection to human beings (cf. infra), the
ostensibly weaker party. Significantly, and in the same line of reasoning,
the methodology of interpretation of human rights treaties encompasses,
in my understanding, all the provisions of those treaties, taken as a whole,
comprising not only the substantive ones (on the protected rights) but
also the procedural ones, those that regulate the mechanisms of interna-
tional protection, including — in historical perspective — the com
promissory clauses conferring jurisdiction upon international human
rights tribunals.

   105 A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,

Vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 32-33 and 192.
   106 Ibid., pp. 32-34 ; and cf. also R. Bernhardt, “Thoughts on the Interpretation of

Human Rights Treaties”, in Protecting Human Rights : The European Dimension — Studies
in Honour of G. J. Wiarda (eds. F. Matscher and H. Petzold), Cologne, C. Heymanns,
1988, pp. 66-67 and 70-71 ; Erik Suy, “Droit des traités et droits de l’homme”, in Völker-
recht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte — Festschrift für
H. Mosler (eds. R. Bernhardt et alii), Berlin, Springer-Verlag, 1983, pp. 935-947 ; J. Velu
and R. Ergec, La Convention européenne des droits de l’homme, Brussels, Bruylant, 1990,
p. 51.

201

268    convention on racial discrimination (diss. op. cançado trindade)

   69. Thus, to refer to notorious examples, the original optional clauses
of acceptance of the contentious jurisdiction of both the European Court
of Human Rights (prior to Protocol No. 11 of the European Convention) 107
and the Inter-American Court of Human Rights in contentious matters
found inspiration initially in the model of the old optional clause of com-
pulsory jurisdiction of the Statute of the Hague Court (PCIJ and ICJ,
Article 36 (2)). Despite the common origin, in search of the realization of
the ideal of international justice, the rationale of the application of the
optional clause has been interpreted in distinct ways, on the one hand in
inter-State litigation, and on the other hand in that of human rights, at
intra-State level.

   70. In the former, considerations of contractual equilibrium between
the parties, of reciprocity, of procedural balance in the light of the juridi-
cal equality of the sovereign States have prevailed to date ; in the latter,
there has been a primacy of considerations of ordre public, of the collec-
tive guarantee exercised by all the States parties, of the accomplishment
of a common goal, superior to the individual interests of each Contract-
ing Party 108. One can hardly make abstraction of the nature and sub-
stance of a treaty when considering the optional clause, or else the
compromissory clause, enshrined therein.

   71. The present case before this Court concerns the Application of the
International Convention on the Elimination of All Forms of Racial Dis-
crimination, one of the pioneering general human rights treaties of the
United Nations era, which preceded in time even the two UN Covenants
on Human Rights of 1966. Adopted on 21 December 1965 and opened
for signature on 7 March 1966, the CERD Convention promptly entered
into force on 4 January 1969. The punctum pruriens judicii, at this stage of
the present case, is the proper understanding of the compromissory clause
(Article 22) of the CERD Convention. I thus deem it fit to recall that, in
my separate opinion in the recent Ahmadou Sadio Diallo case (Guinea v.

    107 Protocol No. 11 to the European Convention on Human Rights entered into force

on 1 November 1998. On the original optional clause (Art. 46) of the European Conven-
tion, cf. Council of Europe/Conseil de l’Europe, Collected Edition of the ‘Travaux prépa-
ratoires’ of the European Convention on Human Rights/Recueil des travaux préparatoires
de la Convention européenne des droits de l’homme, Vol. IV, The Hague, Nijhoff, 1977,
pp. 200-201 and 266-267 ; and Vol. V, The Hague, Nijhoff, 1979, pp. 58-59.
    108 The two aforementioned international human rights tribunals have found themselves

under the duty to preserve the integrity of the regional conventional systems of protec-
tion of human rights as a whole. In their common understanding, it would be inadmissible
to subordinate the operation of the respective conventional mechanisms of protection to
restrictions not expressly authorized by the European and American Conventions, inter-
posed by the States parties in their instruments of acceptance of the optional clauses of
compulsory jurisdiction of the two Courts (Article 62 of the American Convention, and
Article 46 of the European Convention before Protocol No. 11). This would not only imme-
diately affect the efficacy of the operation of the conventional mechanism of protection at
issue, but, furthermore, it would fatally impede its possibilities of future development.

202

269     convention on racial discrimination (diss. op. cançado trindade)

Democratic Republic of the Congo) (Merits, Judgment, I.C.J. Reports
2010 (II), p. 729), I had the occasion to dwell upon the hermeneutics of
human rights treaties (paras. 82-92), given that the parties had invoked
two other treaties of the kind, namely, the 1996 UN Covenant on Civil
and Political Rights and the 1981 African Charter on Human and Peo-
ples’ Rights.

   72. My reflections developed therein are likewise pertinent for the con-
sideration of the point at issue in the present case. In my separate opinion
in the Ahmadou Sadio Diallo case, I pondered in that respect that human
rights treaties :
      “go beyond the realm of purely inter-State relations. When one comes
      to the interpretation of treaties, one is inclined to resort, at first, to
      the general provisions enshrined in Articles 31-33 of the two Vienna
      Conventions on the Law of Treaties (of 1969 and 1986, respectively),
      and in particular to the combination under Article 31 of the elements
      of the ordinary meaning of the terms, the context, and the object and
      purpose of the treaties at issue.
          One then promptly finds that, in practice, while in traditional inter
      national law there has been a marked tendency to pursue a rather
      restrictive interpretation which gives as much precision as possible to
      the obligations of States parties, in the international law of human
      rights, somewhat distinctly, there has been a clear and special empha
      sis on the element of the object and purpose of the treaty, so as to
      ensure an effective protection (effet utile) of the guaranteed rights,
      without detracting from the general rule of Article 31 of the two
      Vienna Conventions on the Law of Treaties. In effect, whilst in gen-
      eral international law the elements for the interpretation of treaties
      evolved primarily as guidelines for the process of interpretation by
      States parties themselves, human rights treaties, in their turn, have
      called for an interpretation of their provisions bearing in mind the
      essentially objective character of the obligations entered into by States
      parties : such obligations aim at the protection of human rights and
      not at the establishment of subjective and reciprocal rights for the
      States parties.
      �����������������������������������������������������������������������������������������������������������������
          The interpretation and application of human rights treaties have
      indeed been guided by considerations of a superior general interest or
      ordre public which transcend the individual interests of contracting
      parties. (. . .) [T]hose treaties are distinct from treaties of the classic
      type which incorporate restrictively reciprocal concessions and com-
      promises ; human rights treaties, in turn, prescribe obligations of an
      essentially objective character, implemented collectively, and are
      endowed with mechanisms of supervision of their own.

      �����������������������������������������������������������������������������������������������������������������

203

270     convention on racial discrimination (diss. op. cançado trindade)

          The converging case law [of the ECHR and the IACtHR] to this
      effect has generated the common understanding (. . .) that human
      rights treaties, moreover, are endowed with a special nature (as dis-
      tinguished from multilateral treaties of the traditional type) ; that
      human rights treaties have a normative character and that their terms
      are to be autonomously interpreted ; that in their application one
      ought to ensure an effective protection (effet utile) of the guaranteed
      rights ; and that permissible restrictions (limitations and derogations)
      to the exercise of guaranteed rights are to be restrictively interpreted.

      �����������������������������������������������������������������������������������������������������������������
          Furthermore, [it has] propounded the autonomous interpretation of
      provisions of human rights treaties, by reference to the respective
      domestic legal systems. (. . .) Moreover, the dynamic or evolutive inter-
      pretation of the respective human rights Conventions (the temporal
      dimension) has been followed by both the European and the
      Inter-American Courts, so as to fulfill the evolving needs of protection
      of the human being.
      �����������������������������������������������������������������������������������������������������������������
           There is (. . .) a converging case law of the Inter-American and
      European Courts of Human Rights — and indeed of other human
      rights international supervisory organs — on the fundamental issue
      of the proper interpretation of human rights treaties, naturally ensu-
      ing from the overriding identity of the object and purpose of those
      treaties.
           General international law itself bears witness of the principle (sub-
      sumed under the general rule of interpretation of Article 31 of the two
      Vienna Conventions on the Law of Treaties) whereby the interpreta-
      tion is to enable a treaty to have appropriate effects. In the present
      domain of protection, international law has been made use of in order
      to improve and strengthen — and never to weaken or undermine —
      the safeguard of recognized human rights (in pursuance of the
      principle pro persona humana, pro victima). The specificity of the
       international law of human rights finds expression not only in the
        interpretation of human rights treaties in general but also in the inter-
        pretation of specific provisions of those treaties.
           Both the European and the Inter-American Courts of Human
        Rights have rightly set limits to State voluntarism, have safeguarded
        the integrity of the respective human rights conventions and the pri-
        macy of considerations of ordre public over the ‘will’ of individual
        States, have set higher standards of State behaviour and established
        some degree of control over the interposition of undue restrictions by
        States, and have reassuringly enhanced the position of individuals as
        subjects of the international law of human rights, with full procedural
        capacity. In so far as the basis of their jurisdiction in contentious
        matters is concerned, eloquent illustrations can be found of their firm

204

271      convention on racial discrimination (diss. op. cançado trindade)

        stand in support of the integrity of the mechanisms of protection of
        the two respective regional Conventions.” (I.C.J. Reports 2010 (II),
        pp. 755-759, paras. 82-86 and 88-90.)

  73. The relationship between the nature of human rights treaties such
as the CERD Convention and the interpretation and application of cor-
responding compromissory clauses (such as that of Article 22 of the
CERD Convention) were object of attention in the course of the proceed-
ings in the present case concerning the Application of the International
Convention on the Elimination of All Forms of Racial Discrimination,
opposing Georgia to Russia before this Court. Thus, at the end of the
public sitting held on 17 September 2010, I deemed it fit to put to the two
contending Parties the following question :
           “A votre avis, la nature des traités relatifs aux droits de l’homme tels
        que la Convention CERD (régissant des relations au niveau intra-
        étatique) a-t-elle des conséquences ou une incidence sur l’interprétation
        et l’application des clauses compromissoires qu’ils contiennent ?
           Pour préserver l’équilibre linguistique de la Cour, je pose ma ques-
        tion aux deux Parties aussi en anglais, l’autre langue officielle de la
        Cour.
           In your understanding, does the nature of human rights treaties
        such as the CERD Convention (regulating relations at intra-State
        level) have a bearing or incidence on the interpretation and applica-
        tion of a compromissory clause contained therein?” 109
  74. The contending Parties, in a commendable spirit of procedural co-
operation, promptly provided the Court with their respective answers to
my question. The claimant State, Georgia, presented the following writ-
ten response to my question :
          “Georgia recognizes that — like many international human rights
        instruments — the CERD Convention regulates relations between the
        State and the citizen at the intra-State level, i.e., the relations between
        a State and its own citizens, as with apartheid. (It also regulates
        actions taken by a State with respect to those located in other States.)
        In this respect, the international human rights movement from the
        Universal Declaration on Human Rights onwards reflected a genu-
        inely new development in international law, and one that has since
        taken root. The purpose of multilateral treaties of this kind, of which
        the CERD was the first, was to build upon earlier declarations
        and make human rights scrutiny and enforcement effective at the inter
        national level, including by means of dispute settlement.

          As the Court has recognized, this new development was capable of
  109   CR 2010/11, of 17 September 2010, pp. 35-36.

205

272      convention on racial discrimination (diss. op. cançado trindade)

        affecting the interpretation of a compromissory clause. In its 1996
        judgment on preliminary objections in the Bosnia Genocide case the
        Court referred no less than three times to the special nature of the
        Genocide Convention as a universal human rights instrument in order
        to found its jurisdiction ratione personae, ratione materiae, ratione
        temporis under Article IX of that Convention. More recently, in rela-
        tion to other cases, it has been noted that the Court has ‘looked
        beyond the strictly inter-State dimension’, indicating — correctly in
        Georgia’s view — an expansive approach to jurisdictional matters in
        order to safeguard the underlying values of the treaty at issue. Thus,
        because human rights treaties regulate the relations between the State
        and its own citizens, a compromissory clause should not be limited to
        matters covered by traditional international law, e.g., in the field of
        diplomatic protection. It would likewise be incorrect to treat the inter-
        pretation and application of a human rights treaty as a matter con-
        fined exclusively to the advisory function of the supervisory body in
        question — as the Court in South West Africa, Second Phase, made
        clear in relation to the Mandate and the role of the Permanent Man-
        dates Commission. Relatedly, human rights-type protections may
        survive change of sovereignty or change of supervisory regime which
        merely bilateral interstate provisions may not survive.

            Georgia’s approach to the interpretation of Article 22 is further
        reinforced by the Court’s established jurisprudence on erga omnes
        rights and obligations, in the Barcelona Traction case. It is noteworthy
        that the Court gave as an example of erga omnes norms the basic
        rights of the human person, including explicitly the protection against
        racial discrimination, along with the prohibition of slavery and
        genocide. The legal consequences of breaches of erga omnes norms
         has since been further clarified by the Court and incorporated by the
         International Law Commission in its Articles on the Responsibility
         of States for Internationally Wrongful Acts, particularly in Articles 48
         and 54, acknowledging the standing of all members of the inter
         national community to invoke the responsibility of the State for breach
         of erga omnes norms.

          The character of human rights treaties — in particular their
        non-synallagmatic character — provides a reason for the broad inter-
        pretation of compromissory clauses, and not for their narrow or
        restrictive interpretation. In the present case this provides a further
        reason for rejecting the Russian Federation’s view that Article 22 is
        subordinated to Article 11.” 110

  110   GR 2010/19, of 24 September 2010, pp. 3-4.

206

273    convention on racial discrimination (diss. op. cançado trindade)

  75. For its part, the respondent State, the Russian Federation, pre-
sented the following written response to my question :
         “As a multi-ethnic State, the Russian Federation acknowledges and
      values the specific character of the CERD Convention as a treaty
      imposing upon member States obligations primarily to be performed
      at the intra-State level.

         This specific character is, in many respects, reflected in the CERD’s
      unique implementation and enforcement mechanism to which Article 22
      specifically makes reference. This mechanism provides for reporting
      obligations on the part of the States parties, which allows the Commit-
      tee to supervise the domestic practices of the contracting parties.
         It equally establishes, through the Articles 11 to 13 procedure, a
      form of collective guarantee of respect for the Convention by the
      States parties, to be ensured by an inter-State complaint and concili-
      ation procedure under the auspices of the Committee. No special
      acceptance of this procedure is needed ; the ratification by a State of
      the Convention makes this procedure automatically applicable, and
      the procedure is mandatory so far as concerns any respondent State.
      Thus the contracting parties, alongside the Committee, become guar-
      antors of the enforcement of the Convention.
         Most notably, the Individual Complaint Procedure of Article 14 of
      CERD (which the Russian Federation has accepted since 1 October
      1991) underlines the intra-State character of the CERD Convention
      in that it enables individuals themselves to take action vis-à-vis con-
      tracting parties when the individual believes that there has been a
      violation of rights protected by CERD.
         The specific importance of individual intra-State rights guaranteed
      by CERD is also reflected in the practice of the CERD Committee,
      i.e., in its development of an urgent procedure to provide for the
      protection of individual rights guaranteed by CERD when these are
      most endangered.
         The Convention also contains implementation procedures of a
      more traditional character (when compared with general inter
      national law) in the form of inter-State dispute settlement before the
      International Court of Justice under Article 22 CERD, which neces-
      sarily falls to be interpreted and applied in the context of CERD’s
      other implementation procedures. Hence, and as also follows from
      the express language used in the provision, the rights under Article 22
      only come into play once a matter arising under CERD has crystal-
      lized into an inter-State dispute and when, moreover, the disputant
      parties have not been able to settle the dispute by inter-State nego
      tiations and by the procedures provided for in Articles 11-13 CERD.

        Further, as follows from the combination of the subject-matter, as
      well as the intra- and inter-State features of CERD, the obligations

207

274      convention on racial discrimination (diss. op. cançado trindade)

        under the Convention are of an erga omnes nature. This also has a
        bearing on the interpretation and application of Article 22 of the
        Convention and of the procedures expressly provided for in this Con-
        vention to which Article 22 refers. As the Russian Federation stated
        in its Preliminary Objections, ‘[t]he erga omnes character of the obli-
        gations instituted therein [in CERD] is reflected in the procedures
        established by the Convention to deal with the inter-State complaints,
        which involve the other parties to the Convention’.
           This interpretation of Article 22 CERD takes full account of the
        specific intra-State character of the CERD convention aimed at pro-
        tecting human rights of individuals.” 111
   76. These responses were followed by another round of written com-
ments by the two contending Parties. Thus, in its comments on the Rus-
sian Federation’s written response to my question, Georgia stated :
           “Georgia notes that Russia’s written response does not directly
        address the question raised by Judge Cançado Trindade. Georgia
        observes that there is nothing in Russia’s response to contradict or
        undermine Georgia’s response to the question put, namely, that ‘[t]he
        character of human rights treaties — in particular their non-synallag-
        matic character — provides a reason for the broad interpretation of com-
        promissory clauses, and not for their narrow or restrictive interpretation’.
           To the contrary, Russia’s response recognizes that the obligations
        under the Convention are not to be performed exclusively at the intra-
        State level ; that the Convention adopts ‘a form of collective guaran-
        tee of respect’ for its provisions ; and that ‘the obligations under the
        Convention are of an erga omnes nature’.
           These statements by Russia acknowledge that the Convention was
        intended to serve as an effective instrument for eliminating the scourge
        of racial (including ethnic) discrimination in all its forms. In that
        regard, they support Georgia’s position on the interpretation of Arti-
        cle 22. Recourse to the Court under that Article is a principle means
        by which States may enforce the Convention’s provisions against
        other States, and thereby make the Convention more effective. To
        read preconditions on the seisin of the Court into Article 22, in a man-
        ner that contradicts the plain meaning of the text, as Russia proposes,
        would frustrate the object and purpose of the Convention : it would
        render access to the Court impossible for all practical purposes, and
        diminish the Court’s role as a means for timely enforcement of the
        Convention’s erga omnes obligations.” 112

 77. For its part, the Russian Federation presented the following com-
ment on Georgia’s written response to my question :

  111   GR 2010/20, of 24 September 2010, pp. 4-5.
  112   GR 2010/21, of 1 October 2010, pp. 2-3.

208

275    convention on racial discrimination (diss. op. cançado trindade)

         “As sat out in further detail in its own answer to the question asked
      by Judge Cançado Trindade, the Russian Federation fully accepts the
      erga omnes nature of the rights protected by human rights treaties,
      including CERD.
         With respect to the interpretation of compromissory clauses con-
      tained in such treaties, the Russian Federation likewise accepts that
      these are special in nature in that any State party thereto may bring
      a dispute concerning a breach of those obligations by another State
      party before the Court. However, that does not mean that the specific
      pre-conditions to jurisdiction in the given compromissory clause may
      be bypassed, or that the compromissory clause should be interpreted
      entirely in isolation from the relevant context, which may (and, in
      this case, does) comprise inter-related dispute settlement mechanisms
      within the treaty itself.
         As the Court has already had occasion to emphasize,
         “‘the erga omnes character of a norm and the rule of consent to
         jurisdiction are two different things’ (East Timor (Portugal v.
         Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29), and
         (. . .) the mere fact that rights and obligations erga omnes may be at
         issue in a dispute would not give the Court jurisdiction to entertain
         that dispute.
             The same applies to the relationship between peremptory norms
         of general international law (jus cogens) and the establishment of
         the Court’s jurisdiction : the fact that a dispute relates to compliance
         with a norm having such a character, which is assuredly the case
         with regard to the prohibition of genocide, cannot of itself provide
         a basis for the jurisdiction of the Court to entertain that dispute.
         Under the Court’s Statute that jurisdiction is always based on the
         consent of the parties.
             As it recalled in its Order of 10 July 2002, the Court has jurisdiction
         in respect of States only to the extent that they have consented
         thereto (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. 241, para. 57). When a compromissory clause in a treaty provides
         for the Court’s jurisdiction, that jurisdiction exists only in respect of
         the parties to the treaty who are bound by that clause and within the
         limits set out therein (ibid., p. 245, para. 71).”
         This is also true in respect of CERD. And neither the interest in
      the protection of the rights protected by CERD nor, more generally,
      the interests of international justice would be served by violation of
      this fundamental principle.
         In the present case, Article 22 of CERD strikes a deliberate and
      fair balance between the (compulsory) jurisdiction of the Court on
      the one hand and the (preliminary) mandatory inter-State conciliation
      by the CERD Committee deliberately instituted by the Convention

209

276      convention on racial discrimination (diss. op. cançado trindade)

        on the other. This in turn reflects the balance to be achieved between
        the breadth of the category of potential claimant States under Arti-
        cle 22 (given the erga omnes nature of obligations under CERD) and
        the interests of respondent States in only appearing before the Court
        once disputes have been crystallised and the requisite attempts at set-
        tlement have failed.
           The CERD Committee has the primary role as to the implementa-
        tion and supervision of CERD including through the settlement of
        eventual disputes between States parties. The fact that the Convention
        provides for a possibility of seizing the Court should not be inter-
        preted to the detriment of the Committee’s vital functions.

          Lessening the role of the CERD Committee would certainly neither
        be in line with the intentions of the drafters of CERD, nor would it
        contribute to preserving the special nature of human rights treaties in
        general, nor that of CERD in particular.” 113

   78. As can be seen from the above, in the present case concerning the
Application of the International Convention on the Elimination of All Forms
of Racial Discrimination, the contending Parties themselves have duly
taken into account the nature of the human rights treaty at issue, the
CERD Convention, though deriving distinct consequences from their
respective arguments. One can simply not make abstraction of the nature
and substance of a human rights treaty in addressing a compromissory
clause contained therein. The general rule of interpretation of treaties
(Article 31 of the two Vienna Conventions on the Law of Treaties, of
1969 and 1986) contains elements that are to be taken into account by the
Court (cf. infra), giving proper weight to the one — that of the object and
purpose of the treaty — which will secure the proper effects to the treaty
at issue, i.e., that will render it truly effective (cf. infra), keeping in mind
that superior values and fundamental human rights are at stake.

          VI. The Principle Ut Res Magis Valeat Quam Pereat

   79. Underlying the aforementioned general rule of treaty interpreta-
tion (cf. para. 66, supra), contained in Article 31 (1) of the two Vienna
Conventions on the Law of Treaties (of 1969 and 1986), is the principle ut
res magis valeat quam pereat, which corresponds to the so-called effet utile
(sometimes called the principle of effectiveness). By virtue of this princi-
ple, widely supported by case law, States parties to human rights treaties
ought to secure to the conventional provisions the appropriate effects at
the level of their respective domestic legal orders. Such principle, as I

  113   GR 2010/22, of 1 October 2010, pp. 3-4.

210

277     convention on racial discrimination (diss. op. cançado trindade)

have already pointed out (para. 68, supra), applies not only in relation to
substantive norms of human rights treaties (that is, those which provide
for the protected rights), but also in relation to procedural norms, in par-
ticular those relating to the right of individual petition and to the accep-
tance of the compulsory jurisdiction in contentious matters of the
international judicial organs of protection. Such conventional norms,
essential to the efficacy of the system of international protection, ought to
be interpreted and applied in such a way as to render their safeguards
truly practical and effective, bearing in mind the special character or
nature of the human rights treaties and their collective implementation.
Such has been, as I have already indicated (para. 72, supra), the approach
pursued in practice by the ECHR and the IACtHR.

   80. May I, at this stage, recall a couple of examples of concrete cases
wherein both the ECHR and the IACtHR had the occasion to pronounce
themselves to this effect. In its judgment on preliminary objections (of
23 March 1995) in the case of Loizidou v. Turkey, for example, the ECHR
warned that, in the light of the letter and the spirit of the European Con-
vention, the possibility cannot be inferred of restrictions to the optional
clause relating to the recognition of the contentious jurisdiction of the
ECHR 114. In the domain of the international protection of human rights,
there are no “implicit” limitations to the exercise of the protected rights ;
and the limitations set forth in the treaties of protection ought to be
restrictively interpreted. The optional clause of compulsory jurisdiction of
the international tribunals of human rights does not admit limitations
other than those expressly contained in the human rights treaties at issue.
And, as the IACtHR has also stated, it could not be at the mercy of limi-
tations not foreseen therein and invoked by the States parties for reasons
or vicissitudes of domestic order 115.

   81. The clause pertaining to the compulsory jurisdiction of interna-
tional human rights tribunals constitutes, in my view, a fundamental
clause (cláusula pétrea) of the international protection of the human
being, which does not admit any restrictions other than those expressly

   114 Article 46 of the European Convention, prior to the entry into force, on 1 November

1998, of Protocol No. 11 to the European Convention. Moreover, the ECHR referred to
the fundamentally distinct context in which international tribunals operate, the ICJ being
“a free-standing international tribunal which has no links to a standard-setting treaty such
as the Convention” ; cf. European Court of Human Rights (ECHR), case of Loizidou v.
Turkey (preliminary objections), Strasbourg, C.E., Judgment of 23 March 1995, p. 25,
para. 82, and cf. p. 22, para. 68. On the prevalence of the conventional obligations of
the States parties, cf. also the Court’s obiter dicta in its previous decision, in the Belilos v.
Switzerland case (1988).
   115 Cf. IACtHR, case of Castillo Petruzzi and Others v. Peru (preliminary objec-

tions), judgment of 4 September 1998, Series C, No. 41, concurring opinion of Judge
A. A. Cançado Trindade, paras. 36 and 38.

211

278       convention on racial discrimination (diss. op. cançado trindade)

provided for in the human rights treaties at issue. This has been so estab-
lished by the IACtHR in its judgments on competence in the cases of the
Constitutional Tribunal and Ivcher Bronstein v. Peru (of 24 September
1999) 116. The permissiveness of the insertion of limitations, not foreseen
in the human rights treaties, in an instrument of acceptance of an optional
clause of compulsory jurisdiction 117, represents a regrettable historical
distortion of the original conception of such clause, in my view unaccept-
able in the field of the international protection of the rights of the human
person.
   82. Any understanding to the contrary would fail to ensure that the
human rights treaty at issue has the appropiate effects (effet utile) in the
domestic law of each State party. The IACtHR’s decision in the case of
Hilaire v. Trinidad and Tobago (preliminary objections, judgment of 1 Sep-
tember 2001) was clear : the modalities of acceptance, by a State party to
the American Convention on Human Rights, of the contentious jurisdic-
tion of the IACtHR, are expressly stipulated in Article 62 (1) and (2) 118,
and are not simply illustrative, but quite precise 119, not authorizing
States parties to interpose any other conditions or restrictions (numerus
clausus).

   116 IACtHR, case of the Constitutional Tribunal (competence), judgment of

24 September 1999, Series C, No. 55, p. 44, para. 35 ; IACtHR, case of Ivcher Bronstein
(competence), judgment of 24 September 1999, Series C, No. 54, p. 39, para. 36.
   117 Exemplified by State practice under Article 36 (2) of the ICJ Statute (supra).

    118   Article 62 (1) and (2) of the American Convention on Human Rights provides that :

         “A State party may, upon depositing its instrument of ratification or adherence to
      this Convention, or at any subsequent time, declare that it recognizes as binding, ipso
      facto, and not requiring special agreement, the jurisdiction of the Court on all matters
      relating to the interpretation or application of this Convention.

         Such declaration may be made unconditionally, on the condition of reciprocity, for
      a specified period, or for specific cases. It shall be presented to the Secretary-General
      of the Organization, who shall transmit copies thereof to the other member States of
      the Organization and to the Secretary of the Court.”
   Thus, according to Article 62 (2) of the Convention, the acceptance, by a State party, of the
contentious jurisdiction of the IACtHR, can be made in four modalities, namely : (a) uncon-
ditionally ; (b) on the condition of reciprocity ; (c) for a specified period ; and (d) for specific
cases. Those, and only those, are the modalities of acceptance of the contentious jurisdiction
of the IACtHR foreseen and authorized by Article 62 (2) of the Convention.

    119 According to Article 62 (2) of the Convention, the acceptance, by a State party, of

the contentious jurisdiction of the IACtHR, can be made in four modalities, namely : (a)
unconditionally ; (b) on the condition of reciprocity ; (c) for a specified period ; and (d) for
specific cases. Those, and only those, are the modalities of acceptance of the contentious
jurisdiction of the IACtHR foreseen and authorized by Article 62 (2) of the Convention,
which does not authorize the States parties to interpose any other conditions or restrictions
(numerus clausus).

212

279     convention on racial discrimination (diss. op. cançado trindade)

  83. In my concurring opinion in the aforementioned Hilaire v. Trini-
dad and Tobago case, I saw it fit to ponder that :
           “In this matter, it cannot be sustained that what is not prohibited,
        is permitted. This posture would amount to the traditional — and
        surpassed — attitude of the laisser-faire, laisser-passer, proper to an
        international legal order fragmented by the voluntarist State subjec-
       tivism, which in the history of law has ineluctably favoured the more
       powerful ones. Ubi societas, ibi jus . . . At this beginning of the
       twenty-first century, in an international legal order wherein one seeks
        to affirm superior common values, among considerations of interna-
        tional ordre public, as in the domain of the international law of human
        rights, it is precisely the opposite logic which ought to apply : what is
        not permitted, is prohibited.
           If we are really prepared to extract the lessons of the evolution of
        international law in a turbulent world throughout the twentieth cen-
        tury, (. . .) we cannot abide by an international practice which has
        been subservient to State voluntarism, which has betrayed the spirit
        and purpose of the optional clause of compulsory jurisdiction, to the
        point of entirely denaturalizing it, and which has led to the perpetu-
        ation of a world fragmented into State units which regard themselves
        as final arbiters of the extent of the contracted international obliga-
        tions, at the same time that they do not seem truly to believe in what
        they have accepted : the international justice.” (Paras. 24-25.)
   84. To bear in mind the three component elements of the general rule
of interpretation bona fides of treaties — text in the current meaning,
context, and object and purpose of the treaty — set forth in Article 31 (1)
of the two Vienna Conventions on the Law of Treaties (of 1969 and
1986), requires also to keep in mind the nature of the treaty wherein that
clause (optional or compromissory) for compulsory jurisdiction appears.
This corresponds to the “context”, precisely the second component ele
ment of the general rule of interpretation of treaties set forth in Article 31
of the two Vienna Conventions on the Law of Treaties 120.
   120 In the Hilaire v. Trinidad and Tobago case (supra), the IACtHR had duly done so,

in stressing the special character of the human rights treaties (paras. 94-97). Likewise, the
IACtHR has kept constantly in mind the third component element of that general rule
of interpretation, namely, the “object and purpose” of the treaty at issue, the American
Convention on Human Rights (paras. 82-83 and 88). As I saw it fit to point out, in this
respect, in my separate opinion in the case Blake v. Guatemala (reparations, 1999) before
the IACtHR :
         “In so far as human rights treaties are concerned, one is to bear always in mind
      the objective character of the obligations enshrined therein, the autonomous meaning
      (in relation to the domestic law of the States) of the terms of such treaties, the collec-
      tive guarantee underlying them, the wide scope of the obligations of protection and
      the restrictive interpretation of permissible restrictions. These elements converge in
      sustaining the integrity of human rights treaties, in seeking the fulfilment of their
      object and purpose, and, accordingly, in establishing limits to State voluntarism.”
      (Paras. 32-33.)

213

280     convention on racial discrimination (diss. op. cançado trindade)

   85. The IACtHR, by means of the judgments on preliminary objec-
tions in the cases of Hilaire, Benjamin, and Constantine, as well as its
earlier judgments on competence in the cases of the Constitutional Tribu-
nal and Ivcher Bronstein, safeguarded the integrity of the American Con-
vention on Human Rights, remained master of its own jurisdiction and
acted in accordance with the high responsibilities accorded to it by the
American Convention on Human Rights 121. The same can be said of the
ECHR, by means of its aforementioned judgment on preliminary objec-
tions in the case Loizidou v. Turkey, in so far as the European Conven-
tion on Human Rights is concerned. Thus, those two tribunals, in their
converging case law on the question at issue, have given a worthy contri-
bution to the strengthening of the international jurisdiction and to the
realization of the old ideal of international justice 122. Moreover, they
have contributed to the creation of an international ordre public based
upon the respect for human rights in all circumstances.
   86. The two aforementioned international human rights tribunals, by
correctly resolving basic jurisdictional issues raised in the cases referred to
above, have aptly made use of the techniques of public international law
in order to strengthen their respective jurisdictions of protection of the
rights of the human person. They have decisively safeguarded the integ-
rity of the mechanisms of protection of the American and European Con-
ventions on Human Rights. The two tribunals at issue have helped to
develop and achieve the aptitude of international law to regulate effi-

    121 In its judgment in the case of Hilaire v. Trinidad and Tobago, the IACtHR rightly

observed that, if restrictions interposed in the instrument of acceptance of its contentious
jurisdiction were accepted, in the terms proposed by the respondent State in the cas
d’espèce, not expressly foreseen in Article 62 of the American Convention, this would lead
 to a situation in which it would have “as first parameter of reference the Constitution of the
 State and only subsidiarily the American Convention”, a situation which would “bring
 about a fragmentation of the international legal order of protection of human rights and
 would render illusory the object and purpose of the American Convention” (para. 93).

   And as I concluded in my own concurring opinion in Hilaire v. Trinidad and Tobago
before the IACtHR,
         “The time has come to consider, in particular, in a future protocol of amend-
      ments to the procedural part of the American Convention on Human Rights, aiming
      at strengthening its mechanism of protection, the possibility of an amendment to
      Article 62 of the American Convention, in order to render such clause also manda-
      tory, in conformity with its character of fundamental clause (cláusula pétrea), thus
      establishing the automatism of the jurisdiction of the Inter-American Court of Human
      Rights. There is pressing need for the old ideal of the permanent international compul-
      sory jurisdiction to become reality also in the American continent, in the present
      domain of protection, with the necessary adjustments in order to face its reality of
      human rights and to fulfil the growing needs of effective protection of the human
      being.” (Para. 39.)
   122 A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,

Vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, Chaps. XV-XVI, pp. 60-83 and
147-168.

214

281    convention on racial discrimination (diss. op. cançado trindade)

ciently relations which have specificity of their own — at intra-State,
rather than inter-State, level. The unity and effectiveness of public inter-
national law itself can be measured precisely by its aptitude to regulate
legal relations in distinct contexts with equal adequacy.
   87. When one comes to human rights treaties, the required attention to
the observance of the principle ut res magis valeat quam pereat appears
particularly compelling, so as to secure the effective protection of the
guaranteed rights enshrined in the treaty at issue. This applies to the
CERD Convention, as in the cas d’espèce before the ICJ, and to all other
human rights treaties. If it were not so, their object and purpose would
not be fulfilled, with harmful consequences in the present domain of pro-
tection of the human person, where considerations of a superior order
(international ordre public) have primacy over State voluntarism. When
we enter into the terra nova of the settlement of human rights disputes in
the framework of the classic inter-State contentieux, we cannot lose sight
of the fact that we are here also moving resolutely from jus dispositivum
to jus cogens 123.

              VII. The Compromissory Clause (Art. 22)
       of the UN Convention on the Elimination of All Forms
                 of Racial Discrimination (CERD) :
       Elements for Its Proper Interpretation and Application

  88. Keeping the above considerations in mind, the way is paved for
turning attention now to the compromissory clause of the CERD Con-
vention. Article 22 of that Convention provides that :
         “Any dispute between two or more States parties with respect to
      the interpretation or application of this Convention, which is not set-
      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.”

  89. The view advanced by the Court’s majority in the present Judg-
ment (para. 140), whereby Article 22 of the CERD Convention would
subordinate the jurisdiction of this Court to the procedures set out in the
CERD Convention itself (Part II, Arts. 11-12), in addition to engagement
in prior negotiations, as “preconditions” to be fulfilled by a State party

    123 Cf., to this effect, my intervention in the debates of 12 March 1986 of the Vienna

Conference on the Law of Treaties between States and International Organizations or
between International Organizations : UN, United Nations Conference on the Law of Trea-
ties between States and International Organizations or between International Organizations
(Vienna, 1986) — Official Records, Vol. I, N.Y., UN, 1995, pp. 187-188 (intervention by
A. A. Cançado Trindade).

215

282      convention on racial discrimination (diss. op. cançado trindade)

before it may have recourse to this Court, is a particularly strict and
rigorous one. It purports to establish rigid “preconditions”, rendering
 access to this Court particularly difficult. This view, contrary to what the
 Court’s majority tries to argue, in my understanding finds no support in
 the Court’s own jurisprudence constante, nor in the legislative history of
 the CERD Convention, and is in conflict with the approach recently
 espoused by the Court itself in its Order of 15 October 2008 in the present
 case concerning the Application of the International Convention on the
 Elimination of All Forms of Racial Discrimination (cf. infra).

  90. Six decades ago, in its Advisory Opinion on the Competence of the
General Assembly for the Admission of a State to the United Nations (of
3 March 1950), this Court deemed it necessary to recall that :
        “the first duty of a tribunal which is called upon to interpret and apply
        the provisions of a treaty, is to endeavour to give effect to them in their
        natural and ordinary meaning in the context in which they occur” 124.

   Only when the words, in their natural and ordinary meaning, were
“ambiguous” or were to “lead to an unreasonable result” — the ICJ
added — only then the Court was to resort to “other methods of interpre-
tation”, seeking to ascertaining “what the parties really did mean when
they used these words” 125.

   91. Although the circumstances of the present case do not in my view
require such an exercise, given the importance of the principle ut res magis
valeat quam pereat (Section VI, supra) as well as the relationship of the
compromissory clause of Article 22 with the nature and substance of the
CERD Convention (Section V, supra), I shall in any case undertake it, in
order to substantiate further my dissenting position, as, in my under-
standing, neither the ordinary meaning of Article 22 nor its travaux
préparatoires support the Court’s majority position in the present Judg-
ment.

          1. Ordinary Meaning of Article 22 of the CERD Convention
   92. The Court’s majority position as to the ordinary meaning of Arti-
cle 22 of the CERD Convention, advanced in the earlier Order of 15 Octo-
ber 2008 in the present case, and relied upon in this respect on the general
rule of interpretation of Article 31 (1) of the 1969 Vienna Convention on
the Law of the Treaties, was quite clear. The Court then stated that :
        “the phrase ‘any dispute (. . .) which is not settled by negotiation or
        by the procedure expressly provided for in this Convention’ does

  124   I.C.J. Reports 1950, p. 8 (emphasis added).
  125   Ibid., p. 8.

216

283    convention on racial discrimination (diss. op. cançado trindade)

      not, on its plain meaning, suggest that formal negotiations in the
      framework of the Convention or recourse to the procedure referred
      to in Article 22 thereof constitute preconditions to be fulfilled before
      the seisin of the Court” (I.C.J. Reports 2008, p. 388, para. 114).

Such plain meaning of the text of Article 22 of the CERD Convention, as
acknowledged by the Court itself, is further confirmed by the context, as
well as the object and purpose of the CERD Convention. It is, further-
more, in harmony with the Court’s jurisprudence constante on the matter.
For reasons which escape my comprehension, the Court’s majority
reverted its position in the present Judgment, into a diametrically opposed
one (cf. item 3 infra, paras. 110-118).
   93. In effect, Article 22 is located in Part III of the CERD Convention,
dealing with the settlement of disputes concerning the interpretation and
application of the Convention as a whole. Article 11, located in Part II of
the CERD Convention, establishes a special complaints procedure, which
is not mandatory. The location of Article 22 in a part of the Convention
distinct from that which governs the functioning of the Committee
(Part II) is thus not without relevance, and should not pass unnoticed. A
brief analysis of the special complaints procedure contained in Article 11
of the CERD Convention indicates that Article 22 of the CERD Conven-
tion is not to be read as requiring prior “exhaustion” of the procedures
set forth in Articles 11 and 12 of the CERD Convention, as an alleged
“precondition” to the Court’s jurisdiction.
   94. It may be recalled that Article 11 (1) of the CERD Convention
establishes a distinct procedure that allows a State party to bring to the
attention of the CERD Committee its concerns as to acts or omissions of
another State party. The language provides that a State party “may” (not
“shall”) invoke this procedure if it wishes to do so ; this makes it clear
that it is not required to refer to this procedure for any further purpose.
The language is clearly not mandatory, and this is not the only indication
to this effect.

   95. It is noteworthy, moreover, that Article 11 (2) of the CERD Con-
vention, which deals with the right to return to the CERD Committee “if
the matter is not adjusted”, is subject to two procedural conditions,
namely :(a) the right must be exercised within six months from the receipt
by the receiving State of the initial communication to the Committee ; and
(b) the Committee must have determined that the matter has not been
adjusted to the satisfaction of both Parties, either by bilateral negotia-
tions or by any other procedure open to them. In case these two condi-
tions were not met, the State concerned could not go back to the
CERD Committee.
   96. This confirms that, when the draftsmen of the CERD Convention
considered it necessary to establish a procedural condition, they clearly
did so, leaving no margin or room for further interpretation or doubts. If

217

284    convention on racial discrimination (diss. op. cançado trindade)

no such condition was clearly set forth, it could not at all be simply
inferred, as that would not be in conformity with the nature and sub-
stance of the CERD Convention, a victim-oriented human rights treaty,
and would clearly militate against the fulfilment of its object and purpose.
This discloses the ordinary meaning of Article 22 of the CERD Conven-
tion.

      2. Travaux préparatoires of Article 22 of the CERD Convention
     97. The drafting of the CERD Convention was accomplished, in a
relatively short time (1964-1965), as a result of the collaboration between
the [former] Sub-Commission on Prevention of Discrimination and Pro-
tection of Minorities, the [former] Commission on Human Rights, and
the III Committee of the General Assembly. At an early stage of the
debates in the Sub-Commission, the key issue of implementation was the
provision for a reporting mechanism by the draft Convention, as the
main measure envisaged by the draftsmen. As a supplementary choice for
States parties, the draft Convention contemplated the establishment of a
Fact‑Finding and Conciliation Committee to assist interested States
parties in seeking friendly settlement of disputes concerning the interpre-
 tation or application of the Convention 126. These other means for States
 parties to reach friendly settlement were additional measures of
 implementation which would help to render the draft Convention “more
  effective” 127.
     98. No discussion took place on measures of implementation at the
  Commission on Human Rights 128. In turn, discussions were held at the
III Committee of the General Assembly, focusing on the innovative meas
ures of implementation, and more particularly on the right of individual
petition, one of the most debated issues of the entire CERD Convention.

   126 This resulted from the proposal of the delegate of the Philippines (Mr. Inglés), at

the 427th meeting of the Sub-Commission. He considered that the settlement of disputes
involving human rights did not always lend itself to strictly judicial procedure (reporting
mechanism), and, aiming at the facilitation of the implementation of the Convention, the
possibility of friendly settlement of disputes was proposed (Conciliation Committee), as
an alternative means of implementation ; cf. UN doc. E/CN.4/Sub.2/SR.427, pp. 11-17 ;
UN Economic and Social Council [ECOSOC], Draft International Convention on the Elimi-
nation of All Forms of Racial Discrimination — Proposed Measures of Implementation
(Mr. Inglés), UN doc. E/CN.4/Sub.2/L.321 of 17 January 1964, p. 1.
   127 UN/Commission on Human Rights, Report on the 20th session (17 February-

18 March 1964), ECOSOC Official Records — 37th session, Supplement No. 8, doc. E/3873,
p. 10, para. 18 ; UN/Sub-Commission on Prevention of Discrimination and Protection
of Minorities, Report of the 16th Session (13-31 January 1964), UN doc. E/CN.4/873,
pp. 51-57.
  128 Cf. UN/Commission on Human Rights, Report on the 20th session, (17 February-

18 March 1964), ECOSOC Official Records — 37th Session, Supplement No. 8,
doc. E/3873, pp. 66-67.

218

285     convention on racial discrimination (diss. op. cançado trindade)

No reference to the conditions of exercise of jurisdiction by the ICJ or the
eventual relationship between the latter and the CERD Convention’s spe-
cial procedures can be inferred from the records of the III Committee.
Solely the question of whether States could access unilaterally to the ICJ
(Philippine proposal 129, as well as interventions by the Canadian 130, Ital-
ian 131 and Belgian 132 delegates) or whether common consent of the rele-
vant States was needed to bring disputes arising out of the CERD
Convention (Ghana’s proposal 133, and Polish amendment 134 supported
by Ukrania 135, USSR 136 and Tanzania 137) was discussed.

   99. The Officers of the III Committee submitted a draft clause VIII on
settlement of disputes (among the final clauses of the draft Convention)
on 15 October 1965 138, and, at last, the III Committee also considered a
“Three-Power amendment” submitted by Ghana, Mauritania and the
Philippines, pertaining to the procedures referred to in the draft Conven-
tion 139 (as presented by Ghana 140). The focus of the delegates and drafts-
men seemed to be on the implementation measures already contained in
the draft Convention, rather than on the role of the ICJ and the circum-
stances of its seizure. Those last proposals were adopted without in-depth
discussions on this subject.

  100. States did not devote to these last proposals the attention they
required (in so far as the issue of the seizure of the ICJ is concerned),
before they became Article 22 of the CERD Convention, as it stands
now. The Court’s majority itself concedes, in the present Judgment
(para. 142) in the case concerning the Application of the International
Convention on the Elimination of All Forms of Racial Discrimination, that

   129 UN/G.A., Proposal by the Philippines : Proposed Articles relating to Measures of

Implementation, UN doc. A/C.3/L.1221, of 11 October 1965, pp. 1ss.

   130 UN/G.A. III Committee, Summary Record of the 1367th Meeting, UN doc. A/C.3/

SR.1367, p. 453, para. 25.
   131 Ibid., p. 454, para. 39.
   132 Ibid., p. 454, para. 40.
   133 UN/G.A., Proposal by Ghana : Revised Amendments to document A/C.3/L.1221, of

12 November 1965, pp. 1ss.
   134 UN/G.A., Poland : Amendments to the Suggestions for Final Clauses Submitted by

the Officers of the III Committee, UN doc. A/C.3/L.1237, of 15 October 1965, pp. 1ss.
  135   Op. cit. supra note 130, p. 453, para. 27.
  136   Ibid., p. 454, para. 33.
  137   Ibid., p. 454, para. 36.
    138 UN/G.A., Suggestions for Final Clauses Submitted by the Officers of the

III Committee, UN doc. A/C.3/L.1237, of 15 October 1965, pp. 1ss.
  139 UN doc A/C.3/L.1313, in UN/G.A., XXth Session — Official Records, Annexes :

Report of the III Committee, UN doc. A/6181, of 18 December 1965, pp. 1ss.
  140   Op. cit. supra note 130, p. 453, para. 29.

219

286      convention on racial discrimination (diss. op. cançado trindade)

there was very little and unsatisfactory discussion of what was to become
Article 22 of the CERD Convention. Its recorded legislative history con-
tains no indication of a mens legis to the effect of subordinating the ICJ
jurisdiction to the satisfaction of mandatory “preconditions”.

   101. I find it surprising, if not extraordinary, that the Court’s majority,
having admitted this, then moved on to its “conclusion” (para. 142),
looking rather like a prêt-à-porter, that Article 22 of the CERD Conven-
tion “imposes preconditions” to be complied with (para. 148), before a
State could refer a dispute to the ICJ thereunder. The fact is that there is
no conclusive indication to that effect in the travaux préparatoires of the
CERD Convention, nor is there any statement as to the existence of a
resolutory obligation incumbent upon States parties, to do all they can to
settle their disputes previously by negotiation, before they can seize the
ICJ. Resort to negotiation was generally referred to as a factual effort or
attempt only, rather than as a resolutory obligation.

   102. The very fact that proceedings were instituted before the ICJ
 ilitates strongly against the assumption or conclusion that the dispute
m
could have been resolved by prior negotiations between the contending
Parties. In the aforementioned discussions of the III Committee on the
last proposals for the draft final clause VIII of the draft Convention
(which led to Article 22 of CERD Convention), the delegate of Canada
(R. St. John Macdonald), for example, stated that :
          “Any party to a dispute over the interpretation or application of
        the Convention should be able to bring the matter before the Court,
        for the Convention was being prepared under United Nations aus-
        pices and the Court was the Organization’s principal juridical organ.
        Moreover, clause VIII allowed parties to a dispute considerable lati-
        tude.” 141
Drawing attention to “the flexibility of the Article’s terms”, he added that
his delegation “hoped” that : “it would be possible to confer in advance
on the Court a measure of jurisdiction in regard to matters connected
with the Convention” 142.
   103. On his turn, the Representative of Italy (F. Capotorti) began by
observing that international law allowed for consent to be given for sub-
mission of a dispute to the Court either “by any or by all the parties”, and
either “upon ratification of the Convention” or “when a particular dis-
pute arose”. He warned that “[c]onsent of States would be much more
difficult to obtain when a dispute already existed than when the Conven-
tion was opened for signature”. His position was, thus, that :

  141   Op. cit. supra note 130, p. 453, para. 25.
  142   Ibid., p. 453, paras. 25 and 28.

220

287      convention on racial discrimination (diss. op. cançado trindade)

          “The Committee should adopt a practical approach and decide
        which method was more in accord with the spirit of the Convention
        and would ensure the most satisfactory settlement of disputes relating
        to the Convention.” 143
   104. The issue of State consent, in sum, could be raised, in his view, at
the appropriate moment, namely, upon ratification of the Convention,
and not subsequently, when a particular dispute arose. In the same dis-
cussions, the delegate of Trinidad and Tobago (Mr. Ince) remarked, in
respect of the draft final clause VIII, that the draft CERD Convention
was “being drawn in a spirit of goodwill”, and one should thus “facilitate
reference of cases to the Court” 144. To the same effect, the delegate of
Belgium (Mr. Cochaux) stated that :
           “The Court was an important international organ whose role in
        settling disputes connected with the present draft Convention — an
        instrument created by the United Nations — should not be belit-
        tled” 145.
   105. The (amended) draft final clause VIII, which was to become Arti-
cle 22 of the CERD Convention, was then adopted, as a whole, by the
III Committee, by 70 votes to 9, with 8 abstentions 146. The language used
by some delegates, in the debates preceding its adoption, does not at all
imply or suggest that recourse to this Court was regarded as subordinated
to the other settlement procedures of the CERD Convention, or to any
“preconditions”. Shortly after that voting took place, the delegate of
Ghana (Mr. Lamptey), further to his previous statement (which the
Court’s majority saw it fit to single out in the present Judgment,
para. 142), added an interpretative declaration as to his position, to the
effect that his delegation had “accepted the compulsory jurisdiction of the
Court in the case of certain specific Conventions”, and that it attached
“much importance” to the CERD Convention 147.
   106. I cannot thus detect on what basis did the Court’s majority, in the
present Judgment in the case concerning the Application of the Inter
national Convention on the Elimination of All Forms of Racial Discrimina-
tion, reach its decision as to the ordinary meaning and scope of
Article 22 of the CERD Convention. The view of the Court’s majority
that the travaux préparatoires of the CERD Convention “do not suggest
a different conclusion from that at which the Court has already arrived
through the main method of ordinary meaning interpretation” (para. 147,
in fine) simply begs the question, and does not resist closer examination.
   107. Moreover, as we have just seen, there were clearly those, in the
drafting history of the CERD Convention, who were sensitive to the

  143 Op. cit. supra note 140, p. 454, para. 39.
  144 Ibid., pp. 454-455, para. 41.
  145 Ibid., p. 454, para. 40.
  146 Ibid., p. 455, para. 41.
  147 Ibid., p. 455, para. 42.

221

288    convention on racial discrimination (diss. op. cançado trindade)

regulation of social relations under the CERD Convention, and who
 favoured possible recourse to the ICJ 148 without “preconditions”. In my
 perception, in the present Judgment on preliminary objections, the posi-
 tion of the Court’s majority as to Article 22 of the CERD Convention
 does not stand.
    108. The “conclusion” drawn by the Court’s majority is not, in my
 perception, supported or “confirmed” by an attentive analysis of the
 travaux préparatoires of the CERD Convention. The so-called “precondi-
 tions” in Article 22, allegedly to be fulfilled prior to the recourse to the
 ICJ, are rather, in my perception, newly-proposed — if not imposed —
 obstacles to the fulfilment of the object and purpose of the CERD Con-
 vention, which, furthermore, fail to take in due account the nature and
 substance of the CERD Convention, a core human rights treaty of con-
 siderable importance in the history of the United Nations itself. In my
 understanding they are, in sum, unwarranted obstacles to access to justice
 at international level.
    109. The whole construction of the present Judgment of the Court in
 respect of the second preliminary objection does not seem to rest on a
 sound reasoning, and appears to me without foundation. Article 22 does
 not use any conditional language (“if”) in its wording. It limits itself to
 stating that a dispute which is not settled by negotiation or by the pro
 cedures expressly provided for in CERD, shall be referred to the ICJ
 for decision. It is a statement of pure verification of facts, and nowhere is
 there a “precondition” implied or suggested in its wording, and certainly
 not in its spirit.

3. The Previous Pronouncement by the Court on Article 22 of the CERD
   Convention : Venire Contra Factum/Dictum Proprium Non Valet
  110. We have seen that Article 22 of the CERD Convention stipulates
that a State party may unilaterally refer a dispute to the Court if that
dispute “is not settled by negotiation”, but this does not establish any
express obligation, in the form of a “precondition”, to engage in such
negotiation. As already noted by the ICJ itself, in its recent Order on
Provisional Measures (of 15 October 2008), these words describe a state
of fact, so that the function of the Court is limited to determining whether
the dispute is not settled. In the same paragraph where the Court stated

   148 Suffice it to recall here the positions taken by two learned jurists, Ronald St. John

Macdonald and Francesco Capotorti (cf. supra). Years later, the former drew attention to
the evolving teleological interpretation of the UN Charter itself, whilst the latter singled
out judicial settlement (including recourse to the ICJ) as the best means to resolve disputes
pertaining to the safeguard of human rights. Cf., respectively : R. St. John Macdonald, “A
Short Note on the Interpretation of the Charter of the United Nations by the International
Court of Justice”, in Liber Amicorum Judge S. Oda (eds. N. Ando et alii), The Hague,
Kluwer, 2002, p. 182 ; F. Capotorti, “Cours général de droit international public”, 248
Recueil des cours de l’Académie de droit international de La Haye (1994), p. 107.

222

289    convention on racial discrimination (diss. op. cançado trindade)

that no precondition was needed, the Court added 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” (I.C.J. Reports 2008, p. 388, para. 114).

   111. However, these negotiations do not constitute a formal requirement
for the Court to exercise its jurisdiction. This approach can also be inferred
from the Court’s longstanding practice, and there is no reason to depart
from it, as that would create juridical uncertainty, in the understanding of
States, as to the circumstances in which the Court would exercise its juris-
diction. Of particular importance is the Court’s judgment in the case of
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States) (Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1984), where the Court ruled that, since there had in fact been no settlement
of the dispute between the parties, the requirements of the compromissory
clause (Article XXXIV (2) of the 1956 Treaty of Friendship, Commerce
and Navigation) were satisfied, since the dispute was clearly one which was
not satisfactorily adjusted by diplomatic means (cf. infra).
   112. In sum, and as the Court held in its Order on provisional mea-
sures of 15 October 2008 in the present case concerning the Application of
the International Convention on the Elimination of All Forms of Racial Dis-
crimination, Article 22 of the CERD Convention does not, on its plain
meaning, suggest that formal negotiations in the framework of the CERD
Convention or recourse to the procedure referred to in Article 22 thereof
constitute “preconditions” to be fulfilled before the seisin of the Court
(I.C.J. Reports 2008, p. 388, para. 114). This was the timely clarification
made by the Court in its Order of 15 October 2008, which now, in the
present Judgment, was incomprehensibly made dead letter by the Court
itself (Judgment, para. 129), which thus ran against and deconstructed its
own res interpretata.
   113. It is widely known that, in international legal procedure, once a
contending party has asserted a position as to a given issue before an
international tribunal, it can no longer attempt to avail itself of an orien-
tation to the opposite sense (as warned by international case law itself 149) :
allegans contraria non audiendus est. This basic principle of procedural
law is valid for countries of droit civil (by virtue of the doctrine going
back to classic Roman law, venire contra factum proprium non valet,
developed on the basis of considerations of equity, aequitas) as well as for
countries of common law (by virtue of the institution of estoppel 150,
proper of the Anglo-Saxon juridical tradition). In any case, it could not
    149 Cf., e.g., Ch. De Visscher, De l’équité dans le règlement arbitral ou judiciaire des

litiges de droit international public, Paris, Pedone, 1972, pp. 49-52.
    150 Cf., inter alia, e.g., Ian Sinclair, “Estoppel and Acquiescence”, in Fifty Years of the

International Court of Justice — Essays in Honour of R. T. Jennings (eds. V. Lowe and
M. Fitzmaurice), Cambridge University Press, 1996, pp. 104-120 ; Ch. Vallée, “Quelques
observations sur l’estoppel en droit des gens”, 77 Revue générale de droit international
public (1973), pp. 949-999.

223

290    convention on racial discrimination (diss. op. cançado trindade)

be otherwise, so as to preserve the confidence and the principle of bona
fides which ought always to prevail in the international legal procedure.

   114. With all the more reason, the same reasoning would apply as to
positions already taken by an international tribunal as to the law, quite a
distinct issue from its prima facie findings as to the facts. Positions as to
the law cannot be simply changed at the tribunal’s free will, shortly after-
wards, to the diametrically opposite direction! This would generate a
sense of juridical insecurity, that would surely undermine the credibility
of the work of an international tribunal, and even more so when its juris-
diction is exercised on the basis of a human rights treaty. Venire contra
factum proprium non valet, and, perhaps even more forcefully, venire con-
tra dictum proprium non valet. In my perception, the Court’s consider-
ations in paragraph 129 of the present Judgment do not at all stand : they
clash with a basic principle of international procedural law, deeply rooted
in legal thinking.
   115. There is no requirement that the negotiations between Georgia
and the Russian Federation include an express reference to the CERD
Convention. It is sufficient for the subject-matter of the dispute at issue to
have been discussed, brought to the attention of each other. In light of
the evidence put to the Court, Georgia has sought to discuss with Russia
matters falling within the scope of the CERD Convention, in the conflicts
affecting ethnic Georgians in South Ossetia and Abkhazia.
   116. Finally, with regard to the question whether the previous engage-
ment in negotiations and recourse to the procedures expressly provided for
in the CERD Convention (referred to in Article 22) are cumulative or alter-
native, the conjunction “or” indicates that the draftsmen of the CERD Con-
vention clearly considered “negotiation” or “the procedures expressly
provided for in this Convention” as alternatives. The Court could well —
and should — have discarded any doubts that could persist on this point ;
instead, it deliberately preferred to abstain from pronouncing (para. 183) on
this aspect of the controversy raised before it. Instead of clarifying the point,
of saying what the law is (juris dictio), it felt there was “no need” to do so.
   117. The purpose of multilateral treaties like the CERD Convention,
of human rights treaties, is to render human rights scrutiny and enforce-
ment effective at the international level, including by means of dispute
settlement. In its jurisprudence constante, for example, the ECHR has
stressed that the object and purpose of human rights treaties (such as the
European Convention) requires that their provisions be interpreted and
applied so as to make their safeguards “practical and effective” 151. The
same applies to the CERD Convention, as a core human rights treaty of
the United Nations.

   151 Cf., to this effect, e.g., ECHR, case Artico v. Italy, judgment of 13 May 1980,

para. 33 ; ECHR, case Soering v. United Kingdom, judgment of 7 July 1989, para. 87 ;
ECHR, case Rantsev v. Cyprus and Russia, judgment of 7 January 2010, para. 275.

224

291      convention on racial discrimination (diss. op. cançado trindade)

   118. In the present case, due weight should have been given to the con-
sideration, in the preamble of the CERD Convention (para. 1), that all
Member States of the United Nations have pledged themselves to take
action, in co-operation with the Organization, for the achievement of one
of the purposes of the United Nations, which is “to promote and encour-
age universal respect for and observance of human rights” for all, without
distinction of any kind, keeping in mind the proclamation, by the 1948
Universal Declaration of Human Rights, that all human beings are born
free and equal in dignity and rights (Art. 1).

  VIII. Towards Peaceful Settlement and Realization of Justice :
                 Verification of Prior Attempts
                   or Efforts of Negotiation

                    1. Permanent Court of International Justice
   119. The Permanent Court of International Justice (PCIJ), in its juris-
prudence constante, approached prior attempts or efforts of negotiation as
a factual element to be taken into account in the process of judicial settle-
ment of disputes submitted to its cognizance. It has never ascribed to this
factual element the character of a “precondition” that would have to be
fully satisfied, for the exercise of its jurisdiction. Thus, in a celebrated pas-
sage of its Judgment (of 30 August 1924), in the case of the Mavrommatis
Palestine Concessions case (Judgment No. 2), the PCIJ stated that :

           “Negotiations do not of necessity always presuppose a more or less
        lengthy series of notes and dispatches ; it may suffice that a discussion
        should have been commenced, and this discussion may have been very
        short ; this will be the case if a deadlock is reached, or if finally a point
        is reached at which one of the parties definitely declares himself
        unable, or refuses, to give way, and there can therefore be no doubt
        that the dispute cannot be settled by diplomatic negotiation.” 152

    120. The PCIJ added, in the same Mavrommatis Palestine Concessions
case (1924), that “it would be incompatible with the flexibility which
should characterize international relations to require the two Govern-
ments to reopen a discussion which has in fact already taken place”
(P.C.I.J., Series A, No. 2, p. 15). In case of an eventual objection in limine
litis to its jurisdiction, the PCIJ further stated that the Court : “is at liberty
to adopt the principle which it considers best calculated to ensure the
administration of justice, most suited to procedure before an international
tribunal and most in conformity with the fundamental principles of inter-
national law” (ibid., p. 16).
    121. Shortly afterwards, in its Judgment (of 25 August 1925), in the

  152   P.C.I.J., Series A, No. 2, p. 13 ; emphasis added.

225

292    convention on racial discrimination (diss. op. cançado trindade)

case concerning Certain German Interests in Polish Upper Silesia (Judg-
ment No. 6), the PCIJ again rejected any formalistic approach, in point-
ing out that : “the Court cannot allow itself to be hampered by a mere
defect of form, the removal of which depends solely on the Party con-
cerned” (P.C.I.J., Series A, No. 6, p. 14).
  The PCIJ added, in the same case, that “the Court’s jurisdiction cannot
depend solely on the wording of the Application” (ibid., p. 15).
  122. In the same line of thinking, in its Judgment (of 26 July 1927), in
the Factory at Chorzów case (Jurisdiction, Judgment No. 8), the PCIJ
again dismissed a self-restrained outlook of the compromissory clause,
which would unduly reduce its scope. The PCIJ warned :

        “To say (. . .) that the clause compromissoire (. . .) must now be
      restrictively interpreted (. . .), would be contrary to the fundamental
      conceptions by which the movement in favour of general arbitration
      has been characterized.” (P.C.I.J., Series A, No. 8, p. 22.)
   The PCIJ refused to infer “a contrary intention” of the parties limiting
its jurisdiction ; such a reliance on “a difference of opinion” between the
parties as to “the interpretation or application of a Convention, it con-
cluded, “instead of settling a dispute once and for all, would leave open
the possibility of further disputes” (ibid., p. 25).

   123. The position taken by the PCIJ, to the effect that recourse to
negotiations has never been a “precondition” to seize it, had prompt
repercussions in the juridical circles of those days. Shortly after the afore-
mentioned decisions of the PCIJ, even those who kept on favouring prior
negotiations and beholding judicial settlement as an ultimum remedium,
were led to agree that by “negotiations” one had in mind, more specifi-
cally, “attempts” of friendly settlement by diplomatic negotiations 153 as a
matter of courtoisie internationale 154. By no means was it meant to be a
“precondition” ; it sufficed that one party had attempted — unsuccess-
fully — to negotiate. They were led to concede that the PCIJ was master
of its own jurisdiction, and was entitled to decide the way it did (above
the thesis sustained by the contending parties), “nullifying” that “precon-
dition”, despite the fact that international jurisdiction was “subsidiary” 155.

  124. To the nostalgics of the past, who kept on privileging diplomatic

    153 “[A]n attempt at amicable settlement by diplomatic means” ; or else “amicable means

of settlement were attempted ” ; and still, “a precondition which must be attempted . . .” ;
cited in N. Kaasik, op. cit. infra note 154, pp. 67 and 69 (emphasis added). [Translation
by the Registry.]
    154 N. Kaasik, “La clause de négociations diplomatiques dans le droit international

positif et dans la jurisprudence de la Cour permanente de Justice internationale”, 14 Revue
de droit international et de législation comparée (1933), p. 94.
    155 Cf. op. cit. supra note 154, pp. 90-92 and 94-95.

226

293    convention on racial discrimination (diss. op. cançado trindade)

negotiations and resisted the advent of judicialization, Maurice Bourquin
lucidly retorted that Article 36 of the Hague Court’s Statute has never
subordinated a legal action to a prior attempt of diplomatic settlement.
How to prove that negotiations were “sufficiently utilized”? This notion
was imprecise and relative, and any rigid formula would be “unaccept-
able”, as each case had its own circumstances. In his view, diplomatic
negotiations may be useful, but it is wiser to have a “nuancée” approach
to them ; the “negative attitude” of one of the parties would suffice to
allow the other to lodge the case with the Hague Court, even if the
exchange of views had a very short duration. It so happened, pondered
M. Bourquin, that : “diplomatic discussions are outside the context of the
law : (. . .) the claims which arise there are inspired solely by consider-
ations of expediency” 156.

                          2. International Court of Justice
   125. For its part, the International Court of Justice (ICJ), in its Judg-
ment on preliminary objections (of 21 December 1962) in the South West
Africa cases (Ethiopia and Liberia v. South Africa), in dismissing the
[third] preliminary objection, drew attention to the importance of “the
well-being and development of the inhabitants of the mandated territory”
(I.C.J. Reports 1962, p. 344), and dismissed the argument that “any broad
interpretation of the compulsory jurisdiction in question would be incom-
patible with Article 22 of the Covenant” (ibid., p. 343). The ICJ added
that :
         “It is immaterial and unnecessary to enquire what the different and
      opposing views were which brought about the deadlock in the past nego-
      tiations in the United Nations, since the present phase calls for determi-
      nation of only the question of jurisdiction. The fact that a deadlock was
      reached in the collective negotiations in the past and the further fact that
      both the written pleadings and oral arguments of the Parties in the pres-
      ent proceedings have clearly confirmed the continuance of this deadlock,
      compel a conclusion that no reasonable probability exists that further
      negotiations would lead to a settlement.” (Ibid., p. 345.)
  126. And the ICJ, having invoked the obiter dictum of the PCIJ in the
Mavrommatis Palestine Concessions case (supra), concluded likewise, on
this particular issue, that “there is no reason” why each of the parties
“should go through the formality and pretence of direct negotiation with
the common adversary State after they have already fully participated in

   156 M. Bourquin, “Dans quelle mesure le recours à des négociations diplomatiques

est-il nécessaire avant qu’un différend puísse être soumis à la juridiction internationale?”,
in Hommage d’une génération de juristes au Président Basdevant, Paris, Pedone, 1960, p. 52,
and cf. pp. 45, 47-48, 52 and 54-55. [Translation by the Registry.]

227

294    convention on racial discrimination (diss. op. cançado trindade)

the collective negotiations with the same State in opposition” (I.C.J.
Reports 1962, p. 346). In the Court’s view,
      “it is not so much the form of negotiation that matters as the attitude
      and views of the Parties on the substantive issues of the question
      involved. So long as both sides remain adamant, (. . .) there is no
      reason to think that the dispute can be settled by further negotiations
      between the Parties.” (Ibid.)

   127. One decade later, in the case of the Appeal Relating to the Juris-
diction of the ICAO Council (India v. Pakistan), the ICJ faced with the
question of lawful action, yet “prejudicial”, causing “injustice or hard-
ship” to another party under the treaties at issue (Judgment, I.C.J. Reports
1972, p. 58, para. 20), found that the various objections raised to its own
competence could not be sustained (ibid., pp. 60-61, paras. 25-26). Subse-
quently, in the Fisheries Jurisdiction case (Federal Republic of Germany v.
Iceland) (Jurisdiction of the Court, Judgment, I.C.J. Reports 1973), the
ICJ pondered that :
      “in the present case, the object and purpose of the 1961 Exchange of
      Notes, and therefore the circumstances which constituted an essential
      basis of the consent of both parties to be bound by the agreement
      embodied therein, had a much wider scope. That object and purpose
      was not merely to decide upon the Icelandic claim to fisheries juris-
      diction up to 12 miles, but also to provide a means whereby the par-
      ties might resolve the question of the validity of any further claims.”
      (I.C.J. Reports 1973, pp. 61-62, para. 32.)
  128. The ICJ then found that the jurisdictional obligation imposed in
the 1961 Exchange of Notes remained applicable, and concluded that :
         “The compromissory clause enabled either of the parties to submit
      to the Court any dispute between them relating to an extension of
      Icelandic fisheries jurisdiction in the waters above its continental shelf
      beyond the 12-mile limit. The present dispute is exactly of the char-
      acter anticipated in the compromissory clause of the Exchange of
      Notes. Not only has the jurisdictional obligation not been radically
      transformed in its extent ; it has remained precisely what it was in
      1961.” (Ibid., p. 65, para. 43.)

  129. Over a decade later, in the case of the United States Diplomatic
and Consular Staff in Tehran (United States of America v. Iran) (Judg-
ment, I.C.J. Reports 1980), the ICJ pointed out that :
      “when the United States filed its Application on 29 November 1979,
      its attempts to negotiate with Iran in regard to the overrunning of its
      Embassy and detention of its nationals as hostages had reached a
      deadlock, owing to the refusal of the Iranian Government to enter

228

295    convention on racial discrimination (diss. op. cançado trindade)

      into any discussion of the matter. In consequence, there existed at that
      date not only a dispute but, beyond any doubt, a ‘dispute (. . .) not
      satisfactorily adjusted by diplomacy’ within the meaning of Arti-
      cle XXI, paragraph 2, of the 1955 Treaty ; and this dispute comprised,
      inter alia, the matters that are the subject of the United States’ claims
      under that Treaty.” (I.C.J. Reports 1980, p. 27, para. 51.)

   130. Shortly afterwards, in its judgment on jurisdiction and admissibil-
ity in the case of Military and Paramilitary Activities in and against Nica-
ragua (Nicaragua v. United States), the ICJ upheld the view that it did
“not necessarily follow that, because a State has not expressly referred in
negotiations with another State to a particular treaty as having been vio-
lated by conduct of that other State, it is debarred from invoking a com-
promissory clause in that treaty”, namely, the 1956 Treaty of Friendship,
Commerce and Navigation between Nicaragua and the United States
(I.C.J. Reports 1984, p. 428, para. 83). Having invoked the aforemen-
tioned obiter dictum of the PCIJ in the case of Certain German Interests in
Polish Upper Silesia, the ICJ concluded on this particular issue that :

         “Accordingly, the Court finds that, to the extent that the claims in
      Nicaragua’s Application constitute a dispute as to the interpretation
      or the application of the Articles of the Treaty of 1956 (. . .), the
      Court has jurisdiction under that Treaty to entertain such claims.”
      (Ibid., p. 429, para. 83.)
  131. In the same 1984 Judgment in the Nicaragua v. United States case,
the ICJ, in asserting its own jurisdiction, discarded any pretence of erect-
ing a “rule” of “prior exhaustion of international remedies” (in the form
of regional negotiations), by an inadequate and groundless analogy with
the rule of exhaustion of local or domestic remedies 157. In the Court’s
words,
      “the Court is unable to accept either that there is any requirement of
      prior exhaustion of regional negotiating processes as a precondition
      to seizing the Court ; or that the existence of the Contadora process
      constitutes in this case an obstacle to the examination by the Court
      of the Nicaraguan Application and judicial determination in due
      course of the submissions of the Parties in the case. The Court is
      therefore unable to declare the Application inadmissible, as requested
      by the United States, on any of the grounds it has advanced as requir-
      ing such a finding.” (Ibid., pp. 440-441, para. 108.)
   157 For a criticism of that pretence of unwarranted analogy, in support of the Court’s

decision on jurisdiction and admissibility in that case, cf. A. A. Cançado Trindade,
“Nicarágua v. Estados Unidos (1984) : Os Limites da Jurisdição ‘Obrigatória’ da Corte
Internacional de Justiça e as Perspectivas de Solução Judicial de Controvérsias Inter-
nacionais”, 37-38 Boletim da Sociedade Brasileira de Direito Internacional (1983-1986),
pp. 71-96.

229

296    convention on racial discrimination (diss. op. cançado trindade)

   132. In thus determining the existence of a dispute between Nicaragua
and the United States as to the interpretation and application of specific
Articles of the 1956 Treaty, and that it had jurisdiction to entertain the
dispute at issue under Article XXIV, paragraph 2, of the Treaty, the
Court kept in mind the frequency of compromissory clauses in bilateral
treaties of the kind, and the fact that those clauses were intended to
enable the parties to resort unilaterally to the Court if they failed to agree
on another peaceful means of settlement. Two years later, in its Judgment
as to the Merits (of 27 June 1986) in the same Nicaragua v. United States
case, the ICJ, reiterating its position, added that “it would therefore be
excessively formalistic to require Nicaragua first to exhaust the procedure
of Article XXIV, paragraph 1, before bringing the matter to the Court”
(I.C.J. Reports 1986, p. 137, para. 274).
   133. Over a decade later, in its judgment on preliminary objections (of
11 June 1998) in the case concerning the Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), the ICJ categori-
cally stated that :
         “Neither in the Charter [of the United Nations] nor otherwise in
      international law is any general rule to be found to the effect that the
      exhaustion of diplomatic negotiations constitutes a precondition for
      a matter to be referred to the Court. No such precondition was
      embodied in the Statute of the Permanent Court of International Jus-
      tice (. . .). Nor is it to be found in Article 36 of the Statute of this
      Court.” (I.C.J. Reports 1998, p. 303, para. 56.)
  134. More recently, the point at issue again came to the fore in the Oil
Platforms case (Islamic Republic of Iran v. United States of America)
(Judgment, I.C.J. Reports 2003). The Court held that it had

       “to take note that the dispute has not been satisfactorily adjusted by
       diplomacy. Whether the fact that diplomatic negotiations have not
       been pursued is to be regarded as attributable to the conduct of the
       one Party or the other is irrelevant for present purposes, as is the
       question whether it is the Applicant or the Respondent that has
       asserted a fin de non-recevoir on this ground. As in previous cases
       involving virtually identical treaty provisions (see United States
       Diplomatic and Consular Staff in Tehran (United States v. Iran),
        I.C.J. Reports 1980, pp. 26-28 ; Military and Paramilitary Activities in
      and against Nicaragua (Nicaragua v. United States of America),
      I.C.J. Reports 1984, pp. 427-429), it is sufficient for the Court to
      satisfy itself that the dispute was not satisfactorily adjusted by diplo-
        macy before being submitted to the Court.” (I.C.J. Reports 2003,
        pp. 210-211, para. 107.)
   135. Nowhere, from the survey above, can an inclination be inferred,
on the part either of the PCIJ or the ICJ, to set up an excessive prerequi-
site of prior negotiations for the exercise of jurisdiction. Quite on the con-

230

297    convention on racial discrimination (diss. op. cançado trindade)

trary, both the PCIJ and the ICJ have been quite clear in holding that an
attempt of negotiation is sufficient, there being no mandatory “precondi-
tion” at all of resolutory negotiations for either of them to exercise juris-
diction in a case they had been seized of. The Hague Court has, in effect,
throughout its history, refrained from any excessive requirement as to
prior negotiations between the contending parties.

       IX. Towards Peaceful Settlement with the Realization
              of Justice under Human Rights Treaties

   136. In the present case of the Application of the International Conven-
tion on the Elimination of All Forms of Racial Discrimination, the Court’s
majority seems to overlook this jurisprudence constante of the Court itself,
in order to set up a strict “precondition” of prior negotiation (paras. 157-
159), with a very high threshold, for the exercise of jurisdiction on the
basis of that human rights treaty, the CERD Convention. In trying to
find support for its position, the Court’s majority recalls an obiter dictum
(p. 116) of the PCIJ in the Advisory Opinion on the Railway Traffic
between Lithuania and Poland (1931). But, a contrario sensu, the jurispru-
dence constante of the Hague Court, on the point at issue, contented itself
with noting that the parties had been unable to find common ground
before the application was filed with it.

     137. Throughout the last decades, studies undertaken on the position
 of the Hague Court (PCIJ and ICJ), on the verification of attempts or
 efforts of negotiation prior to recourse to the Court itself, have come to
 the conclusion that the established case law (jurisprudence constante)
 of the Court does not at all lend support to the view that those prior
 attempts or efforts of negotiation amount to a mandatory “precondition”
 to the exercise of the Court’s jurisdiction 158. Quite on the contrary,
compromissory clauses have been a relevant source of the Court’s

jurisdiction 159, and even more cogently so under some human rights
 treaties containing them (cf. infra), and pointing towards the goal of
the realization of justice.

   158 Cf., e.g., G. Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour

internationale, Paris, Pedone, 1967, pp. 124-125 ; J. I. Charney, “Compromissory Clauses
and the Jurisdiction of the International Court of Justice”, 81 American Journal of Inter-
national Law (1987), pp. 870-883, and cf. pp. 859-864 ; S. Torres Bernárdez, “Are Prior
Negotiations a General Condition for Judicial Settlement by the International Court of
Justice?”, in Liber Amicorum in Memoriam of Judge J. M. Ruda (eds. C. A. Armas Barea,
J. A. Barderis et alii), The Hague, Kluwer, 2000, pp. 507-525.
   159 Cf., e.g., C. J. Tams, “The Continued Relevance of Compromissory Clauses as a

Source of ICJ Jurisdiction”, in A Wiser Century? Judicial Dispute Settlement, Disarmament
and the Laws of War 100 Years after the II Hague Peace Conference (eds. Th. Giegerich and
U. E. Heinz), Berlin, Duncker & Humblot, 2009, pp. 471, 476, 480-481, 487-489 and 492.

231

298     convention on racial discrimination (diss. op. cançado trindade)

   138. Notwithstanding the Court’s jurisprudence constante (supra), the
Court’s majority regrettably set a very high threshold in the present case
as to the requirement of prior negotiations. In my perception, the posi-
tion of this Court along its history, on this particular issue, has favoured
the access to justice lato sensu (i.e., including the realization of justice) ;
the change of approach of the Court’s majority in the present case oppos-
ing Georgia to the Russian Federation not only operates to the contrary,
but, furthermore, can generate a sense of judicial insecurity and can have
an adverse impact on the future acceptance of the Court’s compulsory
jurisdiction under international treaties.
   139. This is even more regrettable bearing in mind the nature of the
treaty at issue, one of the core UN Conventions on human rights, the
CERD Convention. One cannot lose sight of the rights and values that
are at stake. Reliance on formalistic formulas, focus on State “interests”
or intentions, or its “will”, or other related notions, or State strategies of
negotiations, should not make one lose sight of the fact that claimants of
justice, and their beneficiaries, are, ultimately, human beings 160, as dis-
closed by the present case brought to the cognizance of the Court.

   140. There seems to be general awareness at present that the expansion
of international jurisdiction, illustrated, e.g., by the concomitant opera-
tion, with this Court, of international human rights tribunals, responds
and corresponds to a need of the international community nowadays,
going beyond the framework of methods of peaceful settlement of inter-
national disputes (used in inter-State disputes), and giving expression
to the idea of a prééminence of international law 161. This Court has to
remain attentive to that ; it cannot overlook the rationale of human rights
treaties. A mechanical and reiterated search for State consent, placed
above the fundamental values underlying those treaties, will lead it
nowhere.

   141. This Court has, on occasions, expressly acknowledged that the
idea of an international rule of law has indeed gained ground in
recent years. Suffice it here to evoke, for example, the contribution of its
Advisory Opinions on Namibia (of 21 June 1971, cf. infra), and on the
Obligation to Arbitrate by Virtue of Section 21 of the 1947 UN Headquar-
ters Agreement (of 26 April 1988). This idée-force has fostered the search
for the realization of justice under the rule of law at international level,
and is to be kept in mind whenever this Court is called upon to adjudicate
a case on the basis of a human rights treaty.

   160 Cf., to this effect, e.g., Julius Stone, Approaches to the Notion of International Justice,

Princeton University Press, 1970, p. 55.
   161 J.-Y. Morin, “L’état de droit : émergence d’un principe du droit international”, 254

Recueil des cours de l’Académie de droit international de La Haye (1995), pp. 199, 451 and
462.

232

299    convention on racial discrimination (diss. op. cançado trindade)

    142. May it be recalled that, in the late eighties (1988-1989), e.g., the
then Soviet Union (succeeded by the Russian Federation), and some
other Eastern European States, withdrew declarations they had previ-
ously made to exclude compulsory settlement of disputes in some human
rights conventions celebrated during the cold-war period. This was a
reassuring initiative to foster the compulsory jurisdiction of the ICJ in
 respect of six core human rights treaties (including the CERD Conven-
 tion). In his address to the UN General Assembly, of 7 December 1988,
 the President of the (then) Presidium of the Supreme Soviet of the
 USSR (Mr. Mikhail Gorbachev), after invoking “the primacy of univer-
 sal human values”, stated :

         “We believe that the jurisdiction of the International Court of Jus-
      tice at The Hague as regards the interpretation and implementation
      of agreements on human rights should be binding on all States.” 162

   143. Shortly afterwards, on 10 February 1989, the (then) Presidium of
the Supreme Soviet of the USSR adopted, upon the suggestion of the
Council of Ministers of the USSR, a decree (ukaz), whereby it withdrew
the reservations the USSR had previously made in relevant provisions of
six human rights treaties, namely : Article 22 of the CERD Convention
(of central importance in the present case), Article 29 (1) of the 1979 Con-
vention on the Elimination of All Forms of Discrimination against
Women (the CEDAW Convention), Article 30 (1) of the 1984 UN Con-
vention against Torture (the CAT Convention), Article IX of the 1948
Convention against Genocide, Article IX of the 1953 Convention on the
Political Rights of Women, and Article 22 of the 1950 Convention for the
Suppression of the Traffic in Persons and of the Exploitation of the Pros-
titution of Others 163.
   144. Moreover, the realization of justice under human rights treaties
(such as the CERD Convention) can hardly be attained by a valuation of
the evidence produced before the Court pursuant to a strictly inter-State
    162 UN doc. A/43/PV.72, of 8 December 1988, p. 26, and cf. p. 8. Shortly afterwards,

a USSR memorandum, of 29 September 1989, on “Enhancing the Role of International
Law”, circulated in the UN General Assembly on 2 October 1989 (in the framework of the
United Nations Decade of International Law), referred to the strengthening of the role of
the ICJ as the principal judicial organ of the United Nations. Cf. UN doc. A/44/585, of
2 October 1989, p. 5. On this new outlook of the primacy of the rule of law in international
relations, cf. comments in, e.g., A. Gorin and P. Mishchenko, “New Political Thinking
as a Philosophy and a Tool of Soviet Foreign Policy”, 17 Journal of Legislation (1990),
pp. 17-18. On the professed “priority of universal human values” in this new outlook,
cf. comments in, e.g., V. S. Vereshchetin and R. A. Mullerson, “International Law in an
Interdependent World”, 28 Columbia Journal of Transnational Law (1990), pp. 292-293
and 300.
   163 Cf. comments in, e.g., T. Schweisfurth, “The Acceptance by the Soviet Union of

the Compulsory Jurisdiction of the ICJ for Six Human Rights Conventions”, 2 European
Journal of International Law (1990), pp. 110-117.

233

300    convention on racial discrimination (diss. op. cançado trindade)

outlook, singling out the strategies of international litigation of the con-
tending parties, and overlooking the basic rationale of those treaties of
protection of the rights of the human person. Under those treaties, peace-
ful settlement is coupled with the realization of justice, and this latter can
hardly be achieved in a case, such as the present one, without turning
attention to the sufferings and needs of protection of the population.

       X. The Law and the Sufferings and Needs of Protection
          of the Population : Summum Jus, Summa Injuria

   145. Regrettably, this was not done by the Court in the present case.
The Court could, and should, have been particularly attentive to the suf-
ferings and needs of protection of the population, on the basis of an
assessment of the whole evidence produced before it by the contending
parties themselves. Thus, in its consideration of the first and second pre-
liminary objections in the present Judgment, the Court referred to several
pieces of the vast documentation submitted to its cognizance by the Rus-
sian Federation and Georgia. Yet, it did so in the course of a reasoning
which pursued an essentially inter-State, and mostly bilateral, outlook,
centred on the (diplomatic) relations between the two States concerned.
   146. Accordingly, one does not find, in the reasoning of the Court’s
majority, an in-depth examination of the pieces of the aforementioned
documentation which disclose an aspect of the utmost importance to me :
that of the vulnerability, if not defencelessness, of the victimized popula-
tion, directly affected by the long-standing dispute 164, aggravated into an
armed conflict in early August 2008, between Georgia and the Russian
Federation. The present Judgment contains only in passim references to
the sufferings endured by the victimized population, such as the reference
to an agreement concluded by Georgia and the Russian Federation, as
early as on 24 June 1992, which stated in the preamble that the parties
were striving for “the immediate cessation of the bloodshed” (para. 40).
   147. It is beyond the purpose of my dissenting opinion to embark on
an exhaustive analysis of that extensive documentation, as a whole, pro-
duced before the Court. Suffice it here to refer to those documents, sub-
mitted to this Court, in a commendable way, either by the Russian
Federation or by Georgia, which are clearly illustrative of the aspect I
single out herein, namely, that of the pain and sufferings, and the pressing

   164 As it ensues from, e.g., the resolutions of the Georgian Parliament of 20 March 2002

(concerning the situation in Abkhazia), and of 11 October 2005 (concerning alleged
“ethnic cleansing by third parties” in Abkhazia and South Ossetia) ; Georgia’s letters of
27 October 2005 to the UN Security Council (UN doc. S/2005/678), and of 10 November
2005 to the UN Secretary-General (UN doc. A/60/552-S/2005/718) ; Georgia’s state-
ment at the UN Security Council of 26 January 2006, and address at the UN General
Assembly of 23 September 2006, followed by other manifestations of the kind, ranging
from September-November 2006 to August 2008.

234

301       convention on racial discrimination (diss. op. cançado trindade)

needs of protection, of the silent victims of the dispute and armed conflict
between Georgia and the Russian Federation. The point I here wish to
make is that this aspect of the present case could not have been over-
looked, especially in a case lodging with this Court on the basis of a
human rights treaty like the CERD Convention.
    148. In the documentation presented to the Court by the Russian
Federation, appended to its preliminary objections of 1 December 2009 165,
 are the concluding observations of the CERD Committee in respect of
 reports lodged with it by Russia as well as by Georgia. Thus, already in
 its concluding observations, of 22 March 2001, on the initial report of
 Georgia under the CERD Convention, the Committee inter alia found
 that :
            “Georgia has been confronted with ethnic and political conflicts in
         Abkhazia and South Ossetia since independence. (. . .) [T]he conflicts
         in South Ossetia and Abkhazia have resulted in discrimination against
         people of different ethnic origins, including a large number of inter-
         nally displaced persons and refugees.” 166

  149. The point was reiterated by the CERD Committee in its conclu-
ding observations, of 15 August 2005, on the second to third periodic
reports of Georgia under the CERD Convention 167. And, in its more
recent concluding observations, of 13 August 2008, on the 18th and
19th periodic reports of the Russian Federation, the Committee recom-
mended inter alia that :
         “the State party undertake a thorough investigation, through an inde-
         pendent body, into all allegations of unlawful police conduct against
         Georgian nationals and ethnic Georgians in 2006 and adopt measures
         to prevent the recurrence of such acts in the future” 168.

   150. In the documentation presented by Georgia to the Court, appended
to its Memorial of 2 September 2009, and to its written statement (on pre-
liminary objections) of 1 April 2010, there are several reports of inter
national organizations (United Nations, Council of Europe, Organization
for Security and Co-operation in Europe [OSCE], European Union) 169, as
well as non-governmental organizations (Human Rights Watch, Amnesty
International) 170. The latter provide accounts of the occurrence, in the
armed conflict that broke out on 7 August 2008, of deliberate and indis-

   165 Annexes 50, 63 and 70.
   166 UN doc. CERD/C/304/Add.120, of 27 April 2001, paras. 3-4. It added that, “[o]n
repeated occasions, attention has been drawn to the obstruction by the Abkhaz authorities
of the voluntary return of displaced populations” (ibid., para. 4).
   167 Cf. UN doc. CERD/C/GEO/CO/3, of 27 March 2007, paras. 4-5.
   168 UN doc. CERD/C/RUS/CO/19, of 20 August 2008, para. 13.
   169 Annexes (to the Memorial) 56, 59, 60, 62, 71.
   170 Annexes (to the Memorial) 150, 152, 156, 158.

235

302    convention on racial discrimination (diss. op. cançado trindade)

criminate use of force and violence against civilians, ethnic attacks, inten-
tional burning of homes and villages, forced displacement of persons, and
other human rights and humanitarian law violations. But it is the former,
particularly the successive reports of the Monitoring Commission 171 of the
Parliamentary Assembly of the Council of Europe, that provide an over-
all account of the features and the pattern of violence that generated the
sufferings of the population in the regions affected by the armed conflict,
and the pressing needs of protection of the numerous victims.
   151. Even if this particular aspect of the cas d’espèce goes beyond the
framework of bilateral (diplomatic) inter-State relations, this Court, in my
view, could not have overlooked it, at the present stage of preliminary objec-
tions, even more so after its recent decision to indicate provisional measures
of protection (Order of 15 October 2008) in the present case, having found
that it had jurisdiction prima facie over the dispute at issue (I.C.J. Reports
2008, p. 388, para. 117). And, above all, one has to go beyond the strict
inter-State (diplomatic) outlook of traditional international law, for it is
generally recognized that contemporary jus gentium is not at all insensitive
to the fate of the populations.
   152. Thus, it should not pass unnoticed that the aforementioned
reports of the Monitoring Commission of the Parliamentary Assembly of
the Council of Europe took the care to draw attention to the living condi-
tions of the population affected. One of them, of late April 2009, asserted :

        “The rule of customary international law that the well-being of
      the population in occupied areas has to be a basic concern for
      those involved in a conflict. (. . .) [T]he well-being of the population
      in occupied areas has to be a basic concern for those involved in a
      conflict (. . .).” 172
This was of great importance, the report added, in the light of the claims
of “violations of human rights and international humanitarian law” in
the course of the war and during its aftermath 173.
  153. In a previous report, of late January 2009, the Monitoring Com-
mission reiterated this warning (paras. 1, 46, 49, 50), in face of the origi-
nally recorded — by the UNHCR 174 — 133,000 internally displaced
persons in Georgia 175. Looking back in time, to the early 1990s (the con-

   171 I.e., the Committee on the Honouring of Obligations and Commitments by Member

States of the Council of Europe (C.E.).
   172 C.E./Parliamentary Assembly, Follow-up Given by Georgia and Russia to Resolution

1647 (2009), doc. 11.876, of 28 April 2009, p. 7, paras. 29-30.
   173 Ibid., p. 6, para. 23.
   174 That is, the United Nations High Commissioner for Refugees. In addition to the

UNHCR, also the International Committee of the Red Cross (ICRC) received requests
from members of families of those displaced or missing.
   175 C.E./Parliamentary Assembly, Implementation of Resolution 1633 (2008) on the

Consequences of the War between Georgia and Russia, doc. 11.800, of 26 January 2009,
p. 15, para. 58, and cf. pp. 2, 14-15 and 22, paras. 1, 46, 49-50 and 104.

236

303    convention on racial discrimination (diss. op. cançado trindade)

flict of 1992, which also generated forced displacement), the estimated
total of displaced persons in the area, throughout the 1990s, rises to
222,000 persons, according to another report, of early October 2008, of
the Monitoring Committee ; this report estimates that, out of the war of
August 2008 in particular, of the more than 30,000 displaced persons,
25,000 from South Ossetia and 6,000 from Abkhazia “are considered to
be ‘permanently’ unable to return to their original place of residence” 176.
   154. This report deplores “the human suffering” caused by the war
between Georgia and Russia, and resulting from alleged “patterns of eth-
nic cleansing” in South Ossetia 177, and other “human rights and humani-
tarian law violations committed by both sides in the context of the war,
such as the intentional or avoidable killing or wounding of civilians, as
well as destruction of property” 178. In the course of 2009, two Commit-
tees of the Parliamentary Assembly of the Council of Europe issued
reports, also focusing on the suffering of the population, ensuing from the
humanitarian consequences of the war between Russia and Georgia.
   155. The Monitoring Committee, in a new report, of mid-September
2009, regretted that “little tangible progress” had been achieved to address
the consequences of that “tragic war” : there had not been a serious inves-
tigation of the alleged “ethnic cleansing of ethnic Georgians” and perpe-
trators had not been brought to justice 179. The tensions in the whole
region had not been reduced, the report added, negatively affecting its
stability and “the security of all its inhabitants” ; a pressing need remained
of “urgent protection of human rights and humanitarian security” 180.
   156. For its part, the Committee on Migration, Refugees and Popula-
tion, of the Parliamentary Assembly of the Council of Europe, in its
report of early April 2009, also addressed the continuation of problems
that kept on inflicting suffering on the population concerned, and its
“ongoing fear” of a “renewal of hostilities” (para. 95), namely :
(a) detained and missing persons (paras. 39-46) ; (b) forced displacement
(para. 2) ; (c) family reunification (paras. 25 and 45) ; and (d) destruction
of property and looting (para. 30) 181.

   176 C.E./Parliamentary Assembly, The Consequences of the War between Georgia and

Russia, doc. 11.724, of 1 October 2008, p. 3, para. 15, and cf. also p. 13, para. 36.
   177 Ibid., pp. 1 (summary) and 14-15, para. 42 and 54. In this respect, the Monitoring

Committee’s report refers to “credible reports of acts of ethnic cleansing committed in
Georgian villages in South Ossetia and the ‘buffer zone’ by irregular militia and gangs
which the Russian troops failed to stop” ; ibid., p. 1 (summary).
   178 Ibid., p. 3, para. 11, and cf. also p. 16, para. 60.
   179 C.E./Parliamentary Assembly, The War between Georgia and Russia : One Year

After, doc. 12.010, of 14 September 2009, pp. 3 and 5, paras. 1 and 9-10, and cf. also p. 2,
para. 6.
   180 Ibid., pp. 9 and 12, paras. 27 and 49. The report added that there was “a serious risk

of a new exodus of ethnic Georgians from the Gali and Akhalgori districts” ; ibid., p. 14,
para. 64.
   181 C.E./Parliamentary Assembly, Humanitarian Consequences of the War between

Georgia and Russia : Follow-Up Given to Resolution 1648 (2009), doc. 11.859, of 9 April
2009, pp. 2, 8-11 and 16, paras. 2, 25, 30, 39-46 and 95.

237

304    convention on racial discrimination (diss. op. cançado trindade)

   157. These reports were accompanied by resolutions (related to the
fact-finding work of the Monitoring Committee) of the Parliamentary
Assembly of the Council of Europe 182, which also referred to the suffer-
ings of the victimized population. One of those resolutions (namely, reso-
lution 1683 (2009), of 29 September 2009), after referring to the “tragic
war” at issue (para. 1), made a cross-reference to the Report of the “Inde-
pendent International Fact-Finding Mission on the Conflict in Georgia”
(of September 2009), established by the European Union, into the origins
and course of the conflict at issue (para. 2).
   158. The aforementioned Report was also included in the documenta-
tion which Georgia presented to this Court in the course of the proceed-
ings on the consideration of the preliminary objections interposed by the
Russian Federation 183. The Report began by stressing that, as a result of
a decision taken by the Council of the European Union, this was “the
first time in its history that the European Union has decided to intervene
actively in a serious armed conflict”, setting up a Fact-Finding Mission as
a follow-up to the conflict (p. 2). And it went on :
         “[M]ost people directly involved in the conflict remember human
      fates and human suffering first and foremost. The August 2008 armed
      conflict unfortunately saw many crimes committed in violation of
      international humanitarian law and human rights law. (. . .)

        As for the conflict in South Ossetia and adjacent parts of the terri-
      tory of Georgia, the Mission established that all sides to the conflict
      — Georgian forces, Russian forces and South Ossetian forces — com-
      mitted violations of international humanitarian law and human rights
      law. (. . .)” (Paras. 25-26.)
   159. The Report added that the Mission had found “patterns of forced
displacements of ethnic Georgians who had remained in their homes after
the onset of hostilities” (para. 27). The violations of the rights of the
human person mainly concerned “indiscriminate attacks” and “ill‑
treatment of persons”, forced displacement and destruction of property.
As a result,
         “Adding to the severity of the situation, there was a considerable
      flow of internally displaced persons (IDPs) and refugees. Reportedly
      about 135,000 persons fled their homes, most of them from regions
      in and near South Ossetia. While most persons fled to other parts of
      Georgia, a significant number also sought refuge in Russia. The
      majority fled because of the dangers and the insecurity connected to
      the conflict situation. But also numerous cases of forced displace-

   182 E.g., resolution 1647 of 28 January 2009 ; resolution 1633 of 2 October 2008 (forced

displacement, paras. 15 and 24 (3)) ; resolution 1683 of 29 September 2009 (alleged “ethnic
cleansing”, para. 9).
   183 Cf. Annexes (to Georgia’s written statement on preliminary objections, of 1 April

2010) 120 and 121.

238

305    convention on racial discrimination (diss. op. cançado trindade)

      ments in violation of international humanitarian law and human
      rights law were noted.” (Para. 28.)
   160. As we have seen, the fact-finding reports reviewed above charac-
terized the armed conflict of 2008 between Georgia and Russia as a “tragic
war”, marked, by all those who can remember it, by “human fates and
human suffering” (cf. supra). Even earlier occurrences, well before the
2008 armed conflict, have been characterized as “tragic”. Very brief refer-
ences to such characterization, by Georgia, can be found in the present
Judgment, in paragraph 55 (“tragic events” of 1993), paragraph 61 (“tragic
events” of 1998), and paragraph 71 (“tragic results” of occurrences of
2001). Yet, this dimension — the human factor — is not at all reflected in
the present Judgment of the Court, in its own assessment of the facts for
the consideration of the preliminary objections raised before it.

   161. As to the first preliminary objection, for example, the Court spent
92 paragraphs to concede that, in its view, a legal dispute at last crystal-
lized, on 10 August 2008 (para. 93), only after the outbreak of an open
and declared war between Georgia and Russia! I find that truly extraor-
dinary : the emergence of a legal dispute only after the outbreak of wide-
spread violence and war! Are there disputes which are quintessentially
and ontologically legal, devoid of any political ingredients or consider-
ations? I do not think so. The same formalistic reasoning leads the Court,
in 70 paragraphs, to uphold the second preliminary objection, on the
basis of alleged (unfulfilled) “preconditions” of its own construction, in
my view at variance with its own jurisprudence constante and with the
more lucid international legal doctrine.

   162. Under human rights treaties, the individuals concerned, in situa-
tions of great vulnerability or adversity, need a higher standard of protec-
tion ; the ICJ, in the cas d’espèce, lodged with it on the basis of the CERD
Convention, applied, contrariwise, a higher standard of State consent for
the exercise of its jurisdiction. The result was the remittance by the Court
of the present dispute back to the contending parties. The cries of suffer-
ing of the victims (from all sides) of the conflict between the Russian
Federation and Georgia of August 2008 seemed to have echoed in the
 Palais des droits de l’homme in Strasbourg, on the occasion of the decision
 on the admissibility of the case Georgia v. Russia 184, not so in the Peace
Palace here at The Hague.
   163. This point can be added, in my perception, to the characterization
of the present case as indeed a tragic one, above all from the perspective
of the victimized families and individuals. Tragedy accompanies human
   184 Cf. ECHR (Fifth Section), case Georgia v. Russia (application No. 13255/07, deci-

sion of 30 June 2009, paras. 1-51 : the ECHR, by a majority, declared the application
admissible (without prejudging the merits of the case), and joined to the merits the [quite
distinct] preliminary objections raised before it.

239

306   convention on racial discrimination (diss. op. cançado trindade)

existence ; no one can be sure to be free from it, till passing the final
threshold of his or her own life secure from pain and injustice, as Sopho-
cles (497-405 bc) warned in one of his plays. It is not at all surprising that
his masterpieces, like those of Aeschylus (525-456 bc) shortly before him,
and of his contemporary Euripides (484‑406 bc), keep on being repre-
sented throughout the centuries, time and time again, from the fifth cen-
tury bc until our days, in distinct parts of the world, and in several
languages. Their messages are endowed with contemporaneity, duly
grasped by succeeding generations along the centuries everywhere, as they
touch on the unhappiness and sufferings proper of the human condition.

   164. Amidst the violence portrayed in the representations of the peren-
nial Greek tragedies of the fifth century bc, there emerged a timely warn-
ing as to destiny (as in Sophocles’ Oedipus Rex, or in his Ajax), as to the
unforeseeable along human existence, up to its end. Rationalism and so-
called “realism” attempted to put an end to tragedy, and did not succeed
at all, as human existence has been accompanied, since time immemorial,
by irrationality and brutality. It is not surprising to find that, from the
tragedies of ancient Greece, there also emerged a yearning and search for
justice (as in Euripides’ Hecuba, or in Aeschylus’ Oresteian Trilogy, par-
ticularly The Eumenides), never abandoned until our days. Ever since,
attention has been turned to the dictates of human conscience, even when
they clashed with the rules of the law of the polis (as in Sophocles’ Anti-
gone) ; this tension led, in a language gradually crystallized throughout
the subsequent centuries, to the opposition of natural law — emanating
from the recta ratio — to positive law (jus positum), in the longing for
justice.

   165. The reckoned need for justice emanates, e.g., from the rituals of
tribute to the dead and the victimized. Tragedy has, furthermore, evoked
the process of learning through suffering (as, once again, in Aeschylus’
Oresteian Trilogy, particularly Agamemnon). Tragedy has survived ratio-
nalism and so-called “realism”, and, in regretting cruel, inhuman and
degrading treatment (by all means unnecessary and abominable), unfor-
tunately inflicted until our days, remains endowed with manifest contem-
poraneity. The victims of the “tragic war” of 2008 opposing Georgia to
the Russian Federation, the fatal ones and their surviving relatives, and
those forcefully displaced from their homes and incapable to return freely
thereto ever since, have not yet found justice . . . As a Member of the
International Court of Justice (seized of the case of their concern), I can-
not but deeply regret this. Summum jus, summa injuria.

   166. In this connection, may I further recall, also in temporal perspec-
tive, that, in the tragic inter-war period of the first half of the twentieth

240

307    convention on racial discrimination (diss. op. cançado trindade)

century, one of the forerunners of the international protection of human
rights (almost forgotten in our hectic days), the Russian jurist André
Nicolayévitch Mandelstam, deeply regretted that the international legal
order of his time accorded “complete impunity to the State violating the
most sacred rights of the individual”, and longed for a new legal order
which “would oblige the State to accord” to each human being a certain
“minimum of rights”. In his somehow premonitory warning of 1931, he
further stated :

         “The horrible experience of our time has demonstrated that there
      is far less reason to fear the potential abuses that might arise from
      this imprecision and from the absence of sanctions than there is to
      fear those which result from according a State an unlimited power
      over the life and freedom of its subjects.” 185

                          XI. Human Rights Treaties
                             as Living Instruments

   167. In the present Judgment on preliminary objections, the Court
upholds the second preliminary objection relying upon its own strictly
textual or grammatical reasoning relating to the compromissory clause
(Art. 22) of the CERD Convention (para. 135). Nowhere does one find
considerations of a contextual nature, or else a reasoning that at least
attempts to link such compromissory clause to the object and purpose of
the CERD Convention, taking into account the substance and nature of
the Convention as a whole. Nowhere does the Court consider the histori-
cal importance of the CERD Convention as a pioneering human rights
treaty, and its continuing contemporaneity for responding to new chal-
lenges that are of legitimate concern to humankind, for the purpose of
interpreting the compromissory clause contained therein.
   168. Moreover, the reasoning of the Court appears to me as a static
one, attempting to project into our days what the Court’s majority
imagines were the intentions of the draftsmen of the Convention (or of
 some of them) almost half a century ago, on the basis of a textual or
 grammatical argument. The Court notes that, “at the time” when the
 CERD Convention “was being elaborated, the idea of submitting to the
 compulsory settlement of disputes by the Court was not readily accept-
 able to a number of States” (para. 147). The Court then attempts to
 extract consequences therefrom, so as to advance today, in 2011, a rea-
 soning that freezes or ossifies international law in the present domain of
 protection of the human person, that hinders its progressive development,
 and, understandably, that limits its own jurisdiction!

   185 A. N. Mandelstam, Les droits internationaux de l’homme, Paris, Editions internatio-

nales, 1931, p. 138. [Translation by the Registry.]

241

308    convention on racial discrimination (diss. op. cançado trindade)

   169. Nowhere does the Court refer to the actual application that the
CERD Convention has had in practice, throughout the last decades, so as
to fulfill its object and purpose to the benefit of millions of human beings.
Nowhere does the Court recognize that the CERD Convention, like other
human rights treaties, is a living instrument, which has acquired a life of
its own, independently from the assumed “intentions” of its draftsmen
almost half a century ago. Even within the static outlook of the Court,
already at the time the CERD Convention was being elaborated, there
were those — as I have already indicated (cf. supra) — who supported the
compulsory settlement of disputes by this Court, and even more so today,
in 2011, in respect of obligations under the CERD Convention, and other
human rights treaties.

   170. May I here recall that, one and a half decades before the adoption
of the CERD Convention, in his dissenting opinion in the Anglo-Iranian
Oil Co. (United Kingdom v. Iran) case before the ICJ, Judge Alejandro
Alvarez criticized traditional methods of treaty interpretation based on
strict adherence to the letter of treaties (seen with an assumed “everlasting
and fixed character”) and too much reliance on “rules of grammar” with-
out regard to the convention “as a whole” (Preliminary Objection, Judg-
ment, I.C.J. Reports 1952, p. 125). In his view,

      “it is necessary to avoid slavish adherence to the literal meaning of
      legal or conventional texts (. . .). The important point is (. . .) to have
      regard above all to the spirit of such documents, to the intention of
      the parties in the case of a treaty, as they emerge from the institution
      or convention as a whole, and indeed from the new requirements of
      international life. (. . .) [A] convention, once established, acquires a
      life of its own and evolves not in accordance with the ideas or the will
      of those who drafted its provisions, but in accordance with the chang-
      ing conditions of the life of peoples.” (Ibid., p. 126.)
  171. In addition, Judge A. Alvarez warned that, in his view, it was also :
      “necessary to have recourse to the spirit of the Charter of the United
      Nations, of which the Statute of the Court forms an integral part
      (. . .), and to the general principles of the law of nations. (. . .)
         [T]he present Court is, according to its Statute, a Court of justice
      and, as such, and by virtue of the dynamism of international life, it
      has a double task : to declare the law and to develop the law.” (Ibid.,
      pp. 131-132.)
   172. This applies even more forcefully in respect of human rights trea-
ties, which are living instruments, and accompany the evolution of times
and of the social milieu wherein are exercised the protected rights, so as to
respond to new needs of protection of the human person. Their dynamic or
evolutive interpretation finds expression in international case law. A locus
classicus in this respect can be found in the Advisory Opinion of the ICJ

242

309    convention on racial discrimination (diss. op. cançado trindade)

on Namibia (1971), wherein it is asserted that the mandates system
(territories under mandate), and in particular the concepts incorporated
into Article 22 of the Covenant of the League of Nations, “were not
static, but were by definition evolutionary”. And the ICJ significantly
added that :
      “its interpretation cannot remain unaffected by the subsequent devel-
      opment of the law, through the Charter of the United Nations and
      by way of customary law. Moreover, an international instrument has
      to be interpreted and applied within the framework of the entire legal
      system prevailing at the time of the interpretation. (. . .) In this
      domain, as elsewhere, the corpus juris gentium has been considerably
      enriched, and this the Court, if it is faithfully to discharge its func-
      tions, may not ignore.” (Legal Consequences for States of the Con
      tinued Presence of South Africa in Namibia (South West Africa)
      notwithstanding Security Council Resolution 276 (1970), Advisory
      Opinion, I.C.J. Reports 1971, pp. 31-32, para. 53.)
   173. In the same line of reasoning, in the domain of the international
protection of human rights, in the case Tyrer v. United Kingdom (judg-
ment of 25 April 1978), the ECHR asserted that the European Conven-
tion on Human Rights is “a living instrument” to be interpreted in the
light of current living conditions (para. 31). The ECHR pursued the same
approach in other judgments in leading cases, such as those of Airey v.
Ireland (of 9 October 1979), of Marckx v. Belgium (of 13 June 1979) and
of Dudgeon v. United Kingdom (of 22 October 1981).

   174. The ECHR has been pursuing this approach until the present
time. Such evolutive interpretation bears witness of the incidence of the
temporal dimension in the work of legal interpretation. In its judgment of
28 July 1999, in the Selmouni v. France case, to evoke another example,
after reiterating that the Convention is “a living instrument” that ought
to be interpreted “in the light of present-day conditions”, the European
Court added that :
      “the increasingly high standard being required in the area of the pro-
      tection of human rights and fundamental liberties correspondingly
      and inevitably requires greater firmness in assessing breaches of the
      fundamental values of democratic societies” (para. 101).
   175. More recently, to the same effect, the ECHR has reiterated its
approach, ipsis literis, in its judgment of 7 January 2010 in the case of
Rantsev v. Cyprus and Russia (para. 277). Already years earlier, the
ECHR duly clarified that its evolutive interpretation is not limited to the
substantive norms of the Convention, but that it extends likewise to oper-
ational provisions such as the optional clauses (as existing prior to the
entry into force of Protocol No. 11 to the Convention, on 1 November
1998).
   176. Thus, in the case célèbre of Loizidou v. Turkey (preliminary objec-

243

310    convention on racial discrimination (diss. op. cançado trindade)

tions, 1995), the ECHR again pointed out that the European Convention,
as “a constitutional instrument of European public order” (para. 75), is
“a living instrument” to be interpreted in the light of contemporary con-
ditions. It added that not even the (then) optional clauses — on the
acceptance of the right of individual petition (Art. 25) and the Court’s
compulsory jurisdiction (Art. 46) — could be interpreted only in the light
of what could have been the intentions of their draftsmen more than
forty years earlier 186.

   177. The same understanding has been advanced, in the American
continent, by the IACtHR, which espoused, likewise, this evolutive inter-
pretation, of the American Convention on Human Rights, in, e.g., its
judgment (of 18 August 2000) in the case of Cantoral Benavides v. Peru
(para. 99). And, in its pioneering advisory opinion No. 16, on The Right
to Information on Consular Assistance in the Framework of the Guarantees
of the Due Process of Law (of 1 October 1999), after evoking (para. 113)
the Advisory Opinion of the ICJ on Namibia of 1971, as well as the rele-
vant case law of the ECHR, the IACtHR stated that :

      “human rights treaties are living instruments whose interpretation
      ought to accompany the evolution of times and the current living
      conditions.
         The corpus juris of international human rights law comprises a set
      of international instruments of varied contents and juridical effects
      (treaties, conventions, resolutions and declarations). Its dynamic evo-
      lution has exercised a positive impact on international law, in the
      sense of affirming and developing the aptitude of this latter to regulate
      the relations between States and the human beings under their respec-
      tive jurisdictions. Accordingly, this Court ought to adopt an adequate
      approach to consider the question under examination in the frame-
      work of the evolution of the fundamental rights of the human person
      in contemporary international law.” (The Right to Information on
      Consular Assistance in the Framework of the Guarantees of the Due
      Process of Law, paras. 114-115.)
  178. Earlier on, in its Advisory Opinion No. 10 (of 14 July 1989), the
IACtHR pointed out that it would proceed to interpret the 1948 Ameri-
can Declaration on the Rights and Duties of Man not in the light of what
was thought of it in 1948, at the time of its adoption, but “in the present
moment, in face of what is today the inter-American system” of protec-
   186 The ECHR pondered that even if their intentions had been in the sense of permit-

ting restrictions (other than those ratione temporis) under those optional clauses — what in
the case was not demonstrated — this element would not have been decisive (para. 71) ; on
the contrary, the practice of the States parties along the years pointed in the sense of the
acceptance without restrictions of the aforementioned optional clauses of the Convention.

244

311       convention on racial discrimination (diss. op. cançado trindade)

tion, taking into account the “evolution experienced since the adoption of
the Declaration” (para. 37). Thus, the interpretation pursued by the
ECHR and the IACtHR of the respective human rights treaties is not a
static one, clinging to State consent expressed at the time of their adop-
tion, but rather evolutive, taking into consideration the advances achieved
in the corpus of human society in the protection of human rights through-
out the years.

   179. The present case before the ICJ concerns the Application of the
International Convention on the Elimination of All Forms of Racial Dis-
crimination. The CERD Convention is, likewise, a living instrument. It is
a truly pioneering human rights treaty, having preceded in time the two
1966 UN Covenants on Human Rights. Historical accounts give notice of
the “enthusiasm” and high expectations with which the CERD Conven-
tion’s coming into being “was greeted” 187. Its draftsmen kept in mind,
inter alia, the ground-breaking provisions of the 1948 Universal Declara-
tion of Human Rights, to the point of making them part of the law of the
CERD Convention itself, thus conceived as a “maximalist” human rights
treaty 188. The CERD Convention, endowed with universality 189, was soon
to occupy a prominent place in the law of the United Nations itself.

   180. Ever since its adoption, the CERD Convention faced and opposed
a grave violation of an obligation of jus cogens (the absolute prohibition
of racial discrimination), generating obligations erga omnes, and it exerted
influence on subsequent international instruments at universal (UN)
level 190. Throughout the years, its international supervisory organ, the
CERD Committee, has given its contribution to the contemporary corpus
juris gentium on equality and non-discrimination 191. The fundamental
principle of equality and non-discrimination was propounded, in one of
the rare moments or glimpses of lucidity of the twentieth century, by the
1948 Universal Declaration of Human Rights, and echoed in all quarters
of the world :
           “All human beings are born free and equal in dignity and rights.
         They are endowed with reason and conscience and should act towards
         one another in a spirit of brotherhood.” (Art. 1.)

  187 Egon Schwelb, “The International Convention on the Elimination of All Forms of

Racial Discrimination”, 15 International and Comparative Law Quarterly (1966), p. 997.
   188 Ibid., pp. 1024 and 1057, and cf. pp. 998, 1003, 1025-1026 and 1028.
   189 N. Lerner, The UN Convention on the Elimination of All Forms of Racial Discrimina-
tion, Alphen aan den Rijn, Sijthoff & Noordhoff, 1980, pp. IX and 11.
   190 Cf. N. Lerner, Group Rights and Discrimination in International Law, 2nd ed.,

The Hague, Nijhoff, 2003, pp. 59, 71 and 177.
   191 Cf., inter alia, e.g., W. Vandenhole, Non-Discrimination and Equality in the View of

the UN Human Rights Treaty Bodies, Antwerpen, Intersentia, 2005, pp. 1-293 ; and, as to
the normative level, cf., e.g., J. Symonides (ed.), The Struggle against Discrimination, Paris,
UNESCO, 1996, pp. 3-313.

245

312     convention on racial discrimination (diss. op. cançado trindade)

This principle lies in the foundations, is one of the pillars, not only of the
CERD Convention, but of the whole international law of human rights 192 ;
it belongs, in my view, to the realm of international jus cogens 193.

   181. As a result of the present Judgment of the Court in the case con-
cerning the Application of the International Convention on the Elimination of
All Forms of Racial Discrimination, wherein it upheld the second prelimi-
nary objection, the Court deprived itself of the determination whether the
present dispute, which has victimized so many people, falls or not under
the CERD Convention. I firmly disagree with the whole reasoning of the
Court, and its conclusions as to the second preliminary objection, and as to
its jurisdiction, on the basis of the arguments and elements set forth in the
present dissenting opinion. The unfortunate outcome of the present case
discloses that, despite all the advances achieved for human dignity under
the CERD Convention, there is still a long way to go : the struggle for the
prevalence of human rights is never-ending, like in the myth of Sisyphus.
   182. This, in turn, endows the CERD Convention, as a living instru-
ment, adopted four and a half decades ago, with an all-enduring con
temporaneity. Ever since the adoption of the CERD Convention on
21 December 1965, and its opening to signature on 7 March 1966, two
world conferences to combat racism and racial discrimination were held,
in Geneva, in 1978 and 1983. One decade later, the final documents of the
II World Conference on Human Rights (1993), the Vienna Declaration
and Programme of Action, stated that :
         “The speedy and comprehensive elimination of all forms of racism
      and racial discrimination, xenophobia and related intolerance is
      a priority task for the international community. (. . .) The World
      Conference on Human Rights emphasizes the importance of giving
      special attention, including through intergovernmental and humani
      tarian organizations, and finding lasting solutions, to questions
      related to internally displaced persons including their voluntary and
      safe return and rehabilitation. (. . .) The World Conference
      on Human Rights calls on all States to take immediate measures,
      individually and collectively, to combat the practice of ethnic

      cleansing to bring it quickly to an end. Victims of the abhorrent prac-
      tice of ethnic cleansing are entitled to appropriate and effective rem-
      edies.” 194

   192 Cf., to this effect, inter alia, T. Opsahl, Law and Equality, Oslo, Ad Notam

Gyldendal, 1996, pp. 167-176.
   193 IACtHR, Advisory Opinion No. 18 (of 17 September 2003), on the Juridical Condi-

tion and Rights of Undocumented Migrants, paras. 97-101, and concurring opinion of Judge
A. A. Cançado Trindade, paras. 65-89.
   194 Paras. I.15, I.23 and II.24, respectively, and cf. also para. I.28 (Part I corresponds to

the Vienna Declaration, and Part II to the Programme of Action).

246

313    convention on racial discrimination (diss. op. cançado trindade)

   183. The CERD Convention seems to grow in importance if we con-
sider that it applies to distinct kinds of relations, not only to those of
individuals vis-à-vis the public power of the State, but also to inter-
individual or inter-group relations. Also significant is the fact that it
addresses situations affecting individuals or groups living — or surviving —
in considerable vulnerability or adversity. In any case, the relations it pur
ports to regulate go well beyond the strictly inter-State dimension, a point
which this Court appears to experience much difficulty to grasp. This
Court has to accompany the evolving international law in this domain of
protection, when called upon to adjudicate cases under human rights
treaties, like the present one.

   184. Eight years after the adoption of the 1993 Vienna Declaration and
Programme of Action by the II UN World Conference on Human Rights
(so present in my personal memories), it was then the turn of the 2001
World Conference against Racism, Racial Discrimination, Xenophobia
and Related Intolerance (Durban, 2001) to urge States, in its adopted
Declaration, to accede to the CERD Convention “as a matter of urgency,
with a view to universal ratification by the year 2005” (para. 75) 195. This
call promptly repercuted in the UN General Assembly itself 196, and in the
work of the CERD Committee 197.

  185. The Durban Declaration and Programme of Action underlined
the urgency of “addressing the root causes of displacement” and of find-
ing durable solutions to it (para. 54), and called for access to justice — on
a basis of equality — for “victims of discrimination” and “the most vul-
nerable groups” (paras. 42 and 164 (f)). Furthermore, it reiteratedly
evoked the human “tragedies of the past” (paras. 98-101 and 106), and
some “appalling tragedies in the history of humanity” (para. 13), so as to
extract lessons therefrom in order “to avert future tragedies” (para. 57).
The work of the 2001 UN World Conference seems to have been under-
taken under the shadows and fears of the everlasting human tragedy,
proper of the human condition itself.

   195 May it be recalled that the Russian Federation [then the USSR] became party to

the CERD Convention on 4 February 1969, whilst Georgia did so three decades later, on
2 June 1999.
   196 Cf., e.g., General Assembly resolutions 61/149, of 19 December 2006, and 62/220,

of 22 December 2007, on the comprehensive implementation of, and follow-up to, the
Durban Declaration and Programme of Action, in the endeavours towards the elimination
of all (including new) forms of racial discrimination and related intolerance, including de
facto segregation.
   197 The CERD Committee’s “general recommendation” XXVIII, of 19 March 2002, for

example, pointed out that the Durban Declaration and Programme of Action reaffirmed
the “fundamental values” underlying the CERD Convention, and was directly related to
the implementation of this latter.

247

314   convention on racial discrimination (diss. op. cançado trindade)

          XII. A Recapitulation : Concluding Observations

   186. From all the preceding considerations, it is crystal clear that my
own position, in respect of all the points which form the object of the
present Judgment on the case concerning the Application of the Interna-
tional Convention on the Elimination of All Forms of Racial Discrimina-
tion, stands in clear opposition to the view espoused by the Court’s
majority. And it does not squarely fit into the conceptual framework of
the dissenting minority group either, it goes beyond it. My dissenting
position is grounded not only on the assessment of the evidence produced
before the Court, to which I of course attribute importance, but above all
on issues of principle, to which I attach even greater importance. I have
thus felt obliged, in the faithful exercise of the international judicial func-
tion, to lay the foundations of my dissenting position in the cas d’espèce
in the present dissenting opinion. I deem it fit, at this stage, to recapitu-
late all the points of my dissenting position, expressed herein, for the sake
of clarity, and in order to stress their interrelatedness.
   187. Primus : Consideration of compromissory clauses, such as the one
of Article 22 of the CERD Convention, cannot be dissociated from the
larger framework of the compulsory jurisdiction of the Hague Court
(PCIJ and ICJ). Secundus : As to the genesis of the matter, the 1920 Advi-
sory Committee of Jurists was clearly in favour of compulsory jurisdic-
tion, which found an obstacle in the distinct position taken by the political
organs of the League of Nations : hence the amended jurisdictional clause,
and the following co-existence of the optional clause and the compromis-
sory clauses of various kinds as basis for the exercise of compulsory juris-
diction by the Hague Court.
   188. Tertius : Such co-existence of compromissory clauses with the
mechanism of the optional clause was maintained by the 1945 San Fran-
cisco Conference, despite the acknowledgement of the 1945 Commission of
Jurists preference for the establishment of the ICJ’s compulsory jurisdic-
tion ; the force of inertia then prevailed. Quartus : The ensuing State prac-
tice disclosed the dissatisfaction of international legal doctrine with the
States’ reliance on their own terms of consent in approaching the optional
clause, accompanied by greater hope that compromissory clauses would
contribute more effectively to the realization of international justice.
   189. Quintus : From the 1950s to the 1980s, international legal doctrine
endeavoured to overcome the vicissitudes of the “will” of States and to
secure broader acceptance of the World Court’s compulsory jurisdiction,
on the basis of compromissory clauses. Sextus : Subsequently (from the
late 1980s onwards), a more lucid trend of international legal doctrine
continued to pursue the same old ideal, relating the compromissory
clauses at issue to the nature and substance of the corresponding treaties ;
such legal thinking benefitted from the gradual accumulation of experi-
ence in the interpretation and application of human rights treaties, such
as the CERD Convention in the present case.

248

315   convention on racial discrimination (diss. op. cançado trindade)

   190. Septimus : The advent of human rights treaties contributed to
enrich the contemporary jus gentium, in enlarging its aptitude to regulate
relations not only at inter-State level, but also at intra-State level, as
acknowledged in the present case by the contending Parties themselves
(Georgia and the Russian Federation), in the responses they provided to
a question I deemed it fit to put to both of them at the end of the public
sitting before this Court of 17 September 2010. Octavus : In the present
case, the contending Parties themselves have thus duly taken into account
the nature of the human rights treaty at issue, the CERD Convention ;
only the Court has not.
   191. Nonus : The hermeneutics of human rights treaties, faithful to the
general rule of interpretation bona fides of treaties (Article 31 (1) of the
two Vienna Conventions on the Law of Treaties, of 1969 and 1986), bears
in mind the three component elements of the text in the current meaning,
the context, and the object and purpose of the treaty at issue, as well as
the nature of the treaty wherein that clause (optional or compromissory)
for compulsory jurisdiction appears. Decimus : Underlying the general
rule of treaty interpretation is the principle ut res magis valeat quam pereat
(the so-called effet utile) whereby States parties to human rights treaties
ought to secure to the conventional provisions the appropriate effects at
domestic law level ; this principle applies not only in relation to substan-
tive norms of those treaties, but also in relation to procedural norms, such
as the one pertaining to the acceptance of the compulsory jurisdiction in
contentious matters of the international judicial organs of protection.

   192. Undecimus : International human rights case law has constantly
stressed that provisions of human rights treaties be interpreted in a way
to render the safeguard of those rights effective ; in this connection, Arti-
cle 22 of the CERD Convention does not set forth any mandatory “pre-
conditions” for recourse to the ICJ. Duodecimus : To set forth such
“preconditions” where they do not exist, amounts to erecting an undue
and groundless obstacle to access to justice under a human rights treaty.
Tertius decimus : In its own jurisprudence constante (of both the PCIJ and
the ICJ), the Court has clarified that prior negotiations are not a manda-
tory precondition for the exercise of its jurisdiction.

   193. Quartus decimus : In the present case, the Court diverted from its
own jurisprudence constante, in erecting a precondition of the kind, unduly
limiting its own jurisdiction. Quintus decimus : Moreover, in the present
case, in its earlier Order on provisional measures of 15 October 2008, the
ICJ had reiterated its prior understanding to the effect that previous
negotiations did not amount to a mandatory precondition for the exercise
of its jurisdiction ; it could not thus proceed now to review entirely its
own res interpretata (keeping in mind the principle venire contra factum/
dictum proprium non valet).

249

316    convention on racial discrimination (diss. op. cançado trindade)

   194. Sextus decimus : The Court has to remain attentive to the basic
rationale of human rights treaties, since to place State consent above the
fundamental values those treaties embody will lead it nowhere. Septimus
decimus : The realization of justice under a human rights treaty, in a case
like the present one, can only be achieved taking due account and valuing
the sufferings and needs of protection of the population. Duodevicesimus :
State consent plays its role when a State becomes a party to a treaty ; it is
not, however, an element of treaty interpretation.

     195. Undevicesimus : Human rights treaties are living instruments to be
  interpreted in the light of current living conditions, so as to respond to
  new needs of protection of human beings. Vicesimus : This applies even
  more forcefully in respect of a treaty like the CERD Convention, cen-
tered on the fundamental principle of equality and non-discrimination,
which belongs, in my view, to the realm of international jus cogens.
Vicesimus primus : In contemporary jus gentium, the conditions of living
of the population has become a matter of legitimate concern of the inter-
 national community as a whole, and contemporary jus gentium is not
 indifferent to the sufferings of the population. Vicesimus secundus : Given
 the truly irreparable damages inflicted upon human beings by means of
 grave violations of human rights and of international humanitarian law,
 judicial recognition of their victimization is an imperative of justice,
 which comes at least to alleviate their sufferings.
     196. This is not the end of the matter. All this brings to the fore an old
 dilemma, with a direct bearing on the present and future of international
 justice. This old dilemma cannot here be revisited on the basis of old
 dogmas, erected in times past which no longer exist, on the basis of
  notions of the “will” of the State, or its “interests” or intentions. To insist
  on such dogmas would present no dilemma, as it would lead to the freez-
ing or ossification of international law. There is nothing more alien or anti
thetical to human rights protection than such dogmas. The dilemma we
still face today can only be revisited, in my perception, in the framework
of contemporary jus gentium.

   XIII. Epilogue : An Old Dilemma Revisited, in the Framework
                   of Contemporary Jus Gentium

   197. As a result of the present Judgment on Preliminary Objections in the
cas d’espèce, the Court ends up by remitting the present dispute back to the
contending Parties, for its settlement by whatever other means, political or
otherwise, they may wish to take or use. The Court has thereby deprived
itself, inter alia 198, of the determination, at a possible subsequent merits

   198 The Court further deprived itself, as a result of its decision in the cas d’espèce, of

addressing the relevant question, also raised before it (in another preliminary objection),
of the extra-territorial application of human rights treaties, on which there is already a

250

317    convention on racial discrimination (diss. op. cançado trindade)

stage, of whether or not the occurrences referred to in the complaint lodged
with it, which caused so many victims, fall or not under the provisions of the
relevant provisions of the CERD Convention. The present decision under-
mines the appropriate effects of the CERD Convention (including its com-
promissory clause in Article 22) and the compulsory jurisdiction of the
Court itself thereunder.
   198. The Court cannot remain hostage of State consent. It cannot keep
displaying an instinctive and continuing search for State consent, as it so
ostensibly did in its decisions, e.g., in the East Timor case (Portugal v.
Australia) (Judgment of 30 June 1995), and in the case of Armed Activi-
ties on the Territory of the Congo (New Application : 2002) (Democratic
Republic of Congo v. Rwanda) (Judgment of 3 February 2006), to the
point of losing sight of the imperative of realization of justice. The
moment State consent is manifested is when the State concerned decides
to become a party to a treaty, such as the human rights treaty in the pres-
ent case, the CERD Convention. The hermeneutics and proper applica-
tion of that treaty cannot be continuously subjected to a recurring search
for State consent. This would unduly render the letter of the treaty dead,
and human rights treaties are meant to be living instruments, let alone
their spirit.

    199. It is widely known that the founding fathers of the law of nations
(the droit des gens) never visualized the individual consent of the emerging
States as the ultimate source of their legal obligations. This point was
aptly grasped, e.g., by James L. Brierly, in his thematic course delivered
at the Hague Academy of International Law in 1928. He recalled, in his
sharp criticism of positivist dogmas, that Hugo Grotius, for example,
acknowledged that mere consent could never be the ultimate source of
legal obligations ; a contract or a treaty (at domestic or international law
levels) had binding effects on the parties by virtue of the underlying gen-
eral rule of law of pacta sunt servanda 199.
    200. Three decades later, his course was republished, in book form, of
the kind of “collected papers”, wherein J. L. Brierly’s view appeared
reiterated. He first reviewed the understanding of the basis of obligation
 in international law in the distinct theories of some of his main predeces-
sors and contemporaries (e.g., L. Duguit’s notion of solidarity, H. Krabbe’s
sense of right, H. Kelsen’s (hypothetical) fundamental norm, A. Verdross’s
idea of objective justice), before expounding his own. To J. L. Brierly,
more fundamental than the distinction between law and ethics is their
interrelationship : obligation in general belongs to the realm of ethics, it
has to do with an objective legal order, and the search for its basis takes us

growing and significant international case law, proper of our times, heralding the advent
of the new jus gentium, centered on the protection of the human person.
   199 J. L. Brierly, “Le fondement du caractère obligatoire du droit international”,

23 Recueil des cours de l’Académie de droit international de La Haye (1928), pp. 478-479.

251

318     convention on racial discrimination (diss. op. cançado trindade)

onto a metajuridical plane. He ended up by expressing his belief that the
“resurgence” of natural law thinking “seems to open a vista full of hope
for legal science” 200.

   201. J. L. Brierly and his predecessors and contemporaries (such as
L. Duguit, H. Krabbe, H. Kelsen, A. Verdross, among others) lived in a
time when a respectful segment of international legal doctrine was still
attentive to the issue of the foundations of our discipline and the validity
of international legal obligations. International legal scholars in those
days had more time to devote themselves to the fulfilment of the needs of
the spirit ; their energies were not yet diverted to, or consumed by, the
distractions of the ages of television and internet. Modernity and post-
modernity, with their characteristic pragmatism, seem to have obscured
the goal of fulfilment of those needs, and to have left most people today
apparently looking far too busy all the time, doing nothing substantial,
certainly not thinking.
   202. The outcome of the present case before the ICJ, concerning the
Application of the International Convention on the Elimination of All Forms
of Racial Discrimination, is the ineluctable consequence of inaptly and
wrongfully giving pride of place to State consent, even above the funda-
mental values at stake, underlying the CERD Convention, which call for
the realization of justice. In effect, the faith in the realization of inter
national justice has been restated time and time again, over the history of
this Court. In concluding this dissenting opinion, I allow myself to recall,
in this connection, statements made, in the Hague Court, on three his-
torical occasions. At the inaugural sitting of the PCIJ, on 15 February
1922, the Court’s President, Judge B. C. J. Loder, declared that the Hague
Court just established :

      “occupies within the League of Nations a place similar to that of the
      Judicature in many States (. . .).
      �����������������������������������������������������������������������������������������������������������������
          The establishment of the Permanent Court marks in fact the arrival
      of a new era in the civilisation of the world. It is of the greatest impor-
      tance that the true value of this fact should . . . be noted (. . .).
      �����������������������������������������������������������������������������������������������������������������
          The equality of States in law and in justice is now recognised and
      plainly established by the Covenant of the League of Nations (. . .).
      The first act of this League was the creation of a Court of Justice, a
      Court which should administer justice between States.” 201
   200 J. L. Brierly, The Basis of Obligation in International Law and Other Papers, Oxford,

Clarendon Press, 1958, p. 67, and cf. pp. 10, 16, 18, and 64.
   201 Discours présidentiel prononcé à l’occasion de l’ouverture solennelle de la Cour

permanente de Justice internationale par M. le Dr. B. C. J. Loder, Président de la CPJI,
The Hague, 15 February 1922.

252

319     convention on racial discrimination (diss. op. cançado trindade)

  203. Over two decades later, at the inaugural sitting of the ICJ, on
18 April 1946, the Court’s President, Judge J. G. Guerrero, recalling the
period of the Second World War, declared :
          “I shall never forget that day — July 16th, 1940 — when, in the
      early hours of a morning veiled with a mist of sadness and grief, we
      slowly left the station of this martyred city, with tears in our eyes and
      our hearts full of anguish.
      �����������������������������������������������������������������������������������������������������������������
          The place of this Permanent Court of International Justice, which
      left The Hague in 1940, is now taken by the International Court of
      Justice. But between the old and the new Courts the bonds have
      remained so close that it is hard to believe that there has really been
      a change.
      �����������������������������������������������������������������������������������������������������������������
      For this reason, though the International Court of Justice is one of the
      principal organs of the United Nations Organization, its Statute is
      based on that of the Permanent Court of International Justice. (. . .)
      We shall preserve its continuity (. . .). The activities of the Court (. . .)
      will be dependent on the readiness of governments to refer to the inter-
      national jurisdiction disputes capable of judicial settlement. (. . .)” 202

   204. On the occasion of the 50th anniversary of the inauguration of the
international judicial system, over two and a half decades later, at a spe-
cial sitting of the ICJ, on 27 April 1972, the Court’s President, Judge
M. Zafrulla Khan, observed that the optional clause of acceptance of
compulsory jurisdiction had
      “achieved a reconciliation between the desires of those who sought to
      achieve a full system of compulsory jurisdiction at the international
      level, and the scruples and hesitations of those who were afraid that
      compulsory submission to the Tribunal might involve infringement
      of sovereignty or injury to the vital interests of a State.
      �����������������������������������������������������������������������������������������������������������������
          [T]he conditions of international life today render indispensable the
      existence and operation of an international tribunal or tribunals for
      the maintenance of peace.
      �����������������������������������������������������������������������������������������������������������������
          The Court must apply the law and cannot change it ; but in applying
      the law the Court must interpret it and also take note of changes and
      developments in the law. This process is a powerful factor of progress.
      �����������������������������������������������������������������������������������������������������������������

   202 Inaugural Sitting of the International Court of Justice (Speech by H.E. Mr. J. G. Guer

rero, President of the Court), The Hague, 18 April 1946, pp. 16-17 (from the ICJ archives).

253

320     convention on racial discrimination (diss. op. cançado trindade)

          The lesson to be drawn from 50 years experience of the inter
      national judicial system is that at the present stage of development of
      the international community, recourse to a tribunal for the settlement
      of international disputes is essential (. . .). The International Court of
      Justice lays no claim to a monopoly of international judicial settle-
      ment ; Article 95 of the United Nations Charter expressly preserves
      the right of Members of the United Nations to entrust a solution of
      their differences to other tribunals.
      �����������������������������������������������������������������������������������������������������������������
          The Court is the judge for and over sovereign States only in so far
      as they choose ; but States which choose not to submit to its jurisdic-
      tion must face the judgment none of us can avoid : the judgment of
      history.” 203
   205. It is high time for the World Court to give concrete expression,
keeping in mind those statements of faith in the realization of international
justice, of commitment to its mission, as I perceive it, when resolving
cases, like the present one concerning the Application of the Inter
national Convention on the Elimination of All Forms of Racial Discrimina-
tion, in the exercise of its jurisdiction on the basis of human rights trea-
ties, bearing in mind the rationale, the nature and substance of those trea-
ties, with all the juridical consequences that ensue therefrom. This Court
cannot keep on privileging State consent above everything, time and time
again, even after such consent has already been given by States at the
time of ratification of those treaties.

   206. The Court cannot keep on embarking on a literal or grammatical
and static interpretation of the terms of compromissory clauses enshrined
in those treaties, drawing “preconditions” therefrom for the exercise of its
jurisdiction, in an attitude remindful of traditional international arbitral
practice. When human rights treaties are at stake, there is need, in my
perception, to overcome the force of inertia, and to assert and develop the
compulsory jurisdiction of the ICJ on the basis of the compromissory
clauses contained in those treaties.
   207. After all, it is human beings who are ultimately being protected
thereunder, and such compromissory clauses are to be approached in
their ineluctable relationship with the nature and substance of the human
rights treaties at issue, in their entirety. From the standpoint of the justi-
ciables, the subjects (titulaires) of the protected rights, compromissory
clauses such as that of Article 22 of the CERD Convention are directly
related to their access to justice, even if the complaints thereunder are
lodged with the ICJ by States parties to those human rights treaties.

   203 Address by the President of the International Court of Justice [Judge M. Zafrulla

Khan] at a Special Sitting of the Court to Mark the 50th Anniversary of the Inauguration
of the International Judicial System, The Hague, 27 April 1972, pp. 5, 7, 10 and 12-13
(from the ICJ archives).

254

321   convention on racial discrimination (diss. op. cançado trindade)

   208. The justiciables are, ultimately, the human beings concerned. From
this humanist optics, which is well in keeping with the creation itself of the
Hague Court (PCIJ and ICJ), to erect a mandatory “precondition” of
prior negotiations for the exercise of the Court’s jurisdiction amounts to
erecting, in my view, a groundless and most regrettable obstacle to justice.
I have already pointed out, in respect of the victims of the “tragic war” of
2008 opposing Georgia to the Russian Federation — the fatal victims and
their close relatives as well as those forcefully displaced from their homes
and incapable of freely and safely returning thereto — that tragedy has
kept its contemporaneity throughout the centuries (paras. 160-162).

   209. Despite the extraordinary advances in scientific knowledge, no
antidote has yet been discovered to protect man against himself, against
his limitless capacity to inflict injustice and suffering upon his fellow
human beings. The ICJ cannot remain indifferent to such injustice of
“human fates”, and to human suffering. It cannot keep on overlooking
tragedy. As this latter persists, being seemingly proper to the human con-
dition, the need also persists to alleviate human suffering, by means of the
realization of justice. This latter is an imperative which the World Court
is to keep in mind. This goal — the realization of justice — can hardly be
attained from a strict State-centered voluntarist perspective, and a recur-
ring search for State consent. This Court cannot, in my view, keep on
paying lip service to what it assumes as representing the State’s “inten-
tions” or “will”.

   210. The position and the thesis I sustain in the present dissenting
opinion is that, when the ICJ is called upon to settle an inter-State dispute
on the basis of a human rights treaty, it is bound to secure a proper inter-
pretation and application of that treaty, bearing in mind its special nature
and its substance, in its entirety, and the fact that it is intended to protect
rights of the human person at intra-State level. The proper interpretation
of human rights treaties (in the light of the canons of treaty interpretation
of Articles 31-33 of the two Vienna Conventions on the Law of Treaties,
of 1969 and 1986) covers, in my understanding, their substantive as well as
procedural provisions, thus including a provision of the kind of the com-
promissory clause set forth in Article 22 of the CERD Convention. This
is to the ultimate benefit of human beings, for whose protection human
rights treaties have been celebrated, and adopted, by States. The raison
d’humanité prevails over the old raison d’Etat.
   211. In the present Judgment, the Court entirely missed this point : it
rather embarked on the usual exaltation of State consent, labelled, in
paragraph 110, as “the fundamental principle of consent”. I do not at all
subscribe to its view, as, in my understanding, consent is not “fundamen-
tal”, it is not even a “principle”. What is “fundamental”, i.e., what lays in
the foundations of this Court, since its creation, is the imperative of the
realization of justice, by means of compulsory jurisdiction. State consent
is but a rule to be observed in the exercise of compulsory jurisdiction for

255

322    convention on racial discrimination (diss. op. cançado trindade)

the realization of justice. It is a means, not an end, it is a procedural
requirement, not an element of treaty interpretation ; it surely does not
belong to the domain of the prima principia. This is what I have been
endeavouring to demonstrate in the present dissenting opinion.

   212. Fundamental principles are those of pacta sunt servanda, of equal-
ity and non-discrimination (at substantive law level), of equality of arms
(égalité des armes — at procedural law level). Fundamental principle is,
furthermore, that of humanity (permeating the whole corpus juris of inter-
national human rights law, international humanitarian law, and interna-
tional refugee law). Fundamental principle is, moreover, that of the dignity
of the human person (laying a foundation of international human rights
law). Fundamental principles of international law are, in addition, those
laid down in Article 2 in the Charter of the United Nations 204.
   213. These are some of the true prima principia, which confer to the
international legal order its ineluctable axiological dimension. These are
some of the true prima principia, which reveal the values which inspire the
corpus juris of the international legal order, and which, ultimately, pro-
vide its foundations themselves. Prima principia conforms the substratum
of the international legal order, conveying the idea of an objective justice
(proper of natural law). In turn, State consent does not belong to the
realm of the prima principia ; recourse to it is a concession of the jus gen-
tium to States, is a rule to be observed (no one would deny it) so as to
render judicial settlement of international disputes viable.
   214. Such rule or procedural requirement will be reduced to its proper
dimension the day one realizes that conscience stands above the will. This
sums up an old dilemma (faced by the Court as well as by States appear-
ing before it), revisited herein, in the framework of contemporary jus gen-
tium. To this Court, conceived as an International Court of Justice, the
realization of justice remains an ideal which, in the adjudication of human
rights cases brought into its cognizance, has not yet been achieved, as
sadly disclosed by the present Judgment. The formalism and rituals of
inter-State litigation (which in 2011 seem to keep on fascinating the legal
profession) should definitively yield to the ascertainment of the impera-
tive of the realization of justice at international level. After all, there is
nothing so invincible as an ideal — such as that of the realization of jus-
tice — which has not yet been realized : it keeps on banging human con-
science until it blossoms and sees the light of the day.

                         (Signed) Antônio Augusto Cançado Trindade.

   204 Restated in the UN General Assembly resolution 2625 (XXV) of 24 October 1970,

containing the UN Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in Accordance with the Charter of the United
Nations.

256