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I. INTERNATIONAL COURT OF JUSTICE APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (GEORGIA V RUSSIAN FEDERATION) PROVISIONAL MEASURES ORDER OF 15 OCTOBER 2008

Published online by Cambridge University Press:  14 July 2009

Sandy Ghandhi
Sandy Ghandhi
Affiliation:
University of Reading.
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Type
Current Developments: Decisions of International Courts and Tribunals
Information
International & Comparative Law Quarterly , Volume 58 , Issue 3 , July 2009 , pp. 713 - 725
Copyright
Copyright © 2009 British Institute of International and Comparative Law

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References

1 Order, para 3.

2 Order, para 85.

3 660 UNTS 195.

4 Order, para 86.

5 Order, para 108.

6 Order, para 109.

7 For example: UN Doc A/6181, Report of the Third Committee, Annexes, Vol III, (Agenda Item 58), 20th Session, p 15; at p 20 of this report the words ‘subject to their jurisdiction’ were replaced by ‘under their jurisdiction’ following a proposal by a number of States (including Argentina and Brazil), presumably to emphasise the territorial nature of the obligations undertaken.

8 See Schwelb, E ‘The International Convention on the Elimination of All Forms of Racial Discrimination’ (1966) 15 ICLQ 996CrossRefGoogle Scholar.

9 A/8718.

10 A/51/18.

11 A/54/18, Annex V.

12 Order, para 111.

13 Order, para 110.

14 Order, para 112.

15 Joint Dissenting Opinion, paras 8 and 9.

16 Joint Dissenting Opinion, para 10.

17 ibid.

18 Order, para 113.

19 Order, paras 115 and 116.

20 Joint Dissenting Opinion, para 13; see also cited in support in the Opinion: Mavrommatis Palestine Concessions, Judgment [1924] PCIJ Rep Series A No 2, 3 suggesting that the point must have been reached where there can be no doubt that ‘the dispute cannot be settled by negotiation’.

21 UN Doc A/48/18, Annex III; Joint Dissenting Opinion, para 18.

22 Order, para 117.

23 LaGrand (Germany v United States of America) Provisional Measures, Order of 3 March 1999, ICJ Rep1999 (I), 14–15 para 22; article 41(1) reads: ‘[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’. The Rules of Court may be found on the Court's web site. There has been copious literature on this provision and the similar provision in the Statute of the PCIJ; see in particular: Thirlway, H ‘a–1989’ (2001) 72 BYIL 37Google Scholar (esp 111–26) and S Oda ‘Provisional Measures: The Practice of the International Court of Justice’ in V Lowe and M Fitzmaurice (eds) Fifty Years of the International Court of Justice: Essays in Honour of Robert Jennings (CUP, Cambridge, 1996) 542.

24 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro) Provisional Measures, Order of 8 April 1993, ICJ Rep 1993 19 para 34; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) Provisional Measures, Order of 15 March 1996, ICJ Rep 1996 (I) 22 para 35.

25 Order, para 118.

26 The Court did not consider it appropriate, in the present phase, for it to pronounce on the issue of whether articles 2 and 5 of CERD imply a duty to prevent racial discrimination by other actors; in support of its contention that the required connection between the rights which Georgia sought to protect by its Request for the indication of provisional measures and the subject matter of the proceedings on the merits did not exist, the Russian Federation had argued that nowhere in the provisions of articles 2 and 5 of CERD ‘do States undertake to prevent breaches of the Convention’ and thus there was ‘no duty to prevent racial discrimination by other actors’; according to the Russian Federation, ‘owing to this fact, a duty to prevent racial discrimination—or specific, positive measures said to flow from such a duty—cannot form the subject of the proceedings on the merits’; and therefore ‘any related right cannot be protected by the indication of provisional measures’; Order, para 125.

27 Order, para 126.

28 cf Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina) v Yugoslavia (Serbia and Montenegro) Provisional Measures, Order of 8 April 1993, ICJ Rep 1993, 19; Order, para 127.

29 Passage through the Great Belt (Finland v Denmark) Provisional Measures, Order of 29 July 1991, ICJ Rep 1991 17 para 23; Certain Criminal Proceedings in France (Republic of the Congo France) Provisional Measures, Order of 17 June 2003, ICJ Rep 2003 107 para 22; Pulp Mills on the River Uruguay (Argentina v Uruguay) (Preliminary Objections) Order of 23 January 2007 11 para 32; Order para 129.

30 Order, para 130.

31 Order, para 131.

32 Order, para 132.

33 Order, para 133.

34 Order, paras 134–140.

35 Order, para 141.

36 Order, para 142.

37 Order, para 143.

38 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Provisional Measures, Order of 1 July 2000 [2000] ICJ Rep 128 para 43; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) Provisional Measures, Order of 15 March 1996 [1996] ICJ Rep (I) 24, para 48; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, [1993] ICJ Rep 22 para 46; Order para 145; the Joint Dissenting Opinion agreed that the Court had the power to indicate provisional measures exceeding those requested or to decide proprio moto (see para 2 of the Opinion).

39 Order, para 146. Whereas Judge ad hoc Gaja voted in favour of all the provisional measures, he declared that he could not share the view of the Court that the conditions existed for addressing the provisional measures also to Georgia; he remarked that (1) the Russian Federation had not even alleged that in Abkhazia, South Ossetia or adjacent areas the conduct of Georgian authorities or of individuals, groups or institutions under their control or influence might cause the risk of irreparable harm to rights conferred under CERD; (2) nor had the Court given an adequate explanation when appraising the risk (para 143); and (3) in the present factual situation it seemed unlikely that the applicant State could be responsible for violations of rights under CERD that might occur in the relevant areas: even before the recent events, the Committee on Elimination of Racial Discrimination had found that Georgia had experienced ‘difficulty in exercising its jurisdiction with regard to the protection of human rights and the implementation of the Convention in [Abkhazia and South Ossetia]’ (CERD/C/GEO/CO/3 para 4 27 March 2007).

40 LaGrand (Germany v United States of America) Judgment [2001] ICJ Rep 506 para 109; Order para 147; the Joint Dissenting Opinion observed that because of the binding nature of these pronouncements, the Court had to be extra vigilant in concluding whether the required conditions for their indication had been met (see para 2 of the Opinion).

41 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment, [2005] ICJ Rep 258 para 263; Order para 147.

42 Joint Dissenting Opinion, para 21.

43 Joint Dissenting Opinion, para 21.

44 The Times, 23 October 2008.

45 In favour: President Higgins; Judges Buergenthal, Owada, Simma, Abraham, Keith, Sepulveda-Amor; Judge ad hoc Gaja; against: Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Tomka, Bennouna, Shotnikov.