Preliminary objections

APRIL 2011

JUDGMENT

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

PRELIMINARY OBJECTIONS

132. The Court will now proceed to examine the reference in Article 22 of CERD to “negotiation or [to] the procedures expressly provided for” in CERD, with a view to ascertaining whether they constitute preconditions to be met before the seisin of the Court.

133. Leaving aside the question of whether the two modes of peaceful resolution are alternative or cumulative, the Court notes that Article 22 of CERD qualifies the right to submit “a dispute” to the jurisdiction of the Court by the words “which is not settled” by the means of peaceful resolution specified therein. Those words must be given effect.

In the Free Zones of Upper Savoy and the District of Gex case, the Permanent Court of International Justice had occasion to apply the well-established principle in treaty interpretation that words ought to be given appropriate effect. It stated that:

“in case of doubt the clauses of a special agreement by which a dispute is referred to the Court, must, if it does not involve doing violence to their terms, be construed in a manner enabling the clauses themselves to have appropriate effects ” (Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p. 13).

The International Court of Justice also emphasized the importance of the same principle in the Corfu Channel case, where it said:

“It would indeed be incompatible with the generally accepted rules of interpretation to admit that a provision of this sort occurring in a special agreement should be devoid of purport or effect.” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 24; see also Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51.)

By interpreting Article 22 of CERD to mean, as Georgia contends, that all that is needed is that, as a matter of fact, the dispute had not been resolved (through negotiations or through the procedures established by CERD), a key phrase of this provision would become devoid of any effect.

134. Moreover, it stands to reason that if, as a matter of fact, a dispute had been settled, it is no longer a dispute. Therefore, if the phrase “which is not settled” is to be interpreted as requiring only that the dispute referred to the Court must in fact exist, that phrase would have no usefulness. Similarly, the express choice of two modes of dispute settlement, namely, negotiations or resort to the special procedures under CERD, suggests an affirmative duty to resort to them prior to the seisin of the Court. Their introduction into the text of Article 22 would otherwise be meaningless and no legal consequences would be drawn from them contrary to the principle that words should be given appropriate effect whenever possible.

135. The Court also observes that, in its French version, the above-mentioned expression employs the future perfect tense (“[t]out différend... qui n’aura pas été réglé par voie de négociation ou au moyen des procédures expressément prévues par la convention”), whereas the simple present tense is used in the English version. The Court notes that the use of the future perfect tense further reinforces the idea that a previous action (an attempt to settle the dispute) must have taken place before another action (referral to the Court) can be pursued. The other three authentic texts of CERD, namely the Chinese, the Russian and the Spanish texts, do not contradict this interpretation.

136. The Court further recalls that, like its predecessor, the Permanent Court of International Justice, it has had to consider on several occasions whether the reference to negotiations in compromissory clauses establishes a precondition to the seisin of the Court.

As a preliminary matter, the Court notes that, though similar in character, compromissory clauses containing a reference to negotiation (and sometimes additional methods of dispute settlement) are not always uniform. Some contain a time-element for negotiations, the expiry of which would trigger a duty to arbitrate or to have recourse to the Court. Furthermore, the language used contains variations such as “is not settled by” or “cannot be settled by”. Sometimes, especially in older compromissory clauses, the expression used is “which is not” or “cannot be adjusted by negotiation” or “by diplomacy”.

The Court will now consider its jurisprudence concerning compromissory clauses comparable to Article 22 of CERD. Both Parties rely on this jurisprudence as supportive of their respective interpretations of the ordinary meaning of Article 22.

137. In the Armed Activities case, the Democratic Republic of the Congo (DRC) invoked inter alia Article 29, paragraph 1, of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) which used the formula “which is not settled by negotiation”. The DRC denied that the compromissory clause in question contained four preconditions. According to the DRC, the clause contained only two conditions, namely that the dispute must involve the application or interpretation of the Convention and that it must have proved impossible to organize arbitration (Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 37, para. 85). The Court, noting that the DRC had made “numerous protests against Rwanda’s actions in alleged violation of international human rights law”, went on to say: “[w]hatever may be the legal characterization of such protests as regards the requirement of the existence of a dispute between the DRC and Rwanda for purposes of Article 29 of the Convention, that Article requires also that any such dispute be the subject of negotiations” (ibid., pp. 40-41, para. 91).

138. In the same case, the Court, after having found that there was no dispute within the ambit of Article 75 of the World Health Organization (WHO) Constitution, went on to note, that:

“even if the DRC had demonstrated the existence of a question or dispute falling within the scope of Article 75 of the WHO Constitution, it has in any event not proved that the other preconditions for seisin of the Court established by that provision have been satisfied, namely that it attempted to settle the question or dispute by negotiation with Rwanda or that the World Health Assembly had been unable to settle it” (ibid., p. 43, para. 100).

139. Similarly, in its Advisory Opinion on the Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, the Court was asked to determine whether the United States was obliged to enter into arbitration procedure with the United Nations under Section 21, paragraph (a), of the United Nations Headquarters Agreement, which provides that

“ [a]ny dispute between the United Nations and the United States concerning the interpretation or application of this agreement... which is not settled by negotiation or other agreed mode of settlement, shall be referred for final decision to a tribunal of three arbitrators” (Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 14, para. 7; emphasis added).

The Court noted that in order to be able to answer that question, it must, upon determination that there exists a dispute between the United Nations and the United States concerning the interpretation or application of the Headquarters Agreement, “satisfy itself that [that dispute] is one ‘not settled by negotiation or other agreed mode of settlement’” (ibid., p. 27, para. 34).

140. The Court observes that in each of the above-mentioned cases where the compromissory clause was comparable to that included in CERD, the Court has interpreted the reference to negotiations as constituting a precondition to seisin.

141. Accordingly, the Court concludes that in their ordinary meaning, the terms of Article 22 of CERD, namely “[a]ny dispute... which is not settled by negotiation or by the procedures expressly provided for in this Convention”, establish preconditions to be fulfilled before the seisin of the Court.

(b) Travaux préparatoires

142. In light of this conclusion, the Court need not resort to supplementary means of interpretation such as the travaux préparatoires of CERD and the circumstances of its conclusion, to determine the meaning of Article 22.

However, the Court notes that both Parties have made extensive arguments relating to the travaux préparatoires, citing them in support of their respective interpretations of the phrase “a dispute which is not settled...”. Given this and the further fact that in other cases, the Court had resorted to the travaux préparatoires in order to confirm its reading of the relevant texts (see, for example, Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 27, para. 55; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 21, para. 40; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 653, para. 53), the Court considers that in this case a presentation of the Parties’ positions and an examination of the travaux préparatoires is warranted.

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

CASE CONCERNING

THE TERRITORIAL DISPUTE

(LIBYAN ARAB JAMAHIRIYAICHAD)

Дата добавления: 2015-10-31