INTERNATIONAL COURT OF JUSTICE

INTERNATIONAL COURT OF JUSTICE Distinguished Members of the Court, Welcome to the International Court of Justice of UFRGSMUN s 8 th edition! It is truly an honor to simulate the main judicial organ of the United Nations in UFRGSMUN, and we are pleased that you decided to join us in this task. First, let us introduce ourselves. Andressa Santos Michel is in her 5 th year of Law School at UFRGS and became very interested in international law since she got involved with UFRGSMUN. She was a Bolivian delegate in the Social, Cultural and Humanitarian Committee (SOCHUM) in 2006 and a Judge in ICJ in both 2007 and 2008. She became a member of the staff in 2009, when she acted as ICJ s Vice- President. This year, she is UFRGSMUN s Under-Secretary-General for Academic Affairs and also acts as ICJ s President. Andressa has participated for three consecutive years in the Philip C. Jessup International Law Moot Court Competition (2008, 2009 and 2010), an experience that only contributed to increase her interest in international law and especially in the ICJ. She is looking forward to this simulation, as she believes UFRGSMUN is one of the best and most constructive events aimed at undergraduate students. She is a special enthusiast of the International Court of Justice, and she hopes that all participants enjoy the experience of acting as a Judge as much as she does. Mariana Camargo Contessa is an 8th semester Law Student at UFRGS. She first attended the UFRGMUN International Court of Justice in 2007 and found it so interesting that she participated again in 2008. Moreover, she has been in touch with international law since the beginning of college and continues to study and research in this area until the present days. In 2009, she went to an exchange program at Universidade do Porto Portugal, and unfortunately she was not able to attend UFRGSMUN. After coming back to Brazil this year, she is very excited to be acting as a member of the staff and as ICJ s Vice-President. Luíza Leão Soares Pereira is the Registrar at this year s UFRGSMUN International Court of Justice. She is a 3 th year Law school student and an aficionada of simulations, having participated of UFRGSMUN since her first year at the university. She has also participated in the Jessup International Law Moot Court Competition two times as an agent and is really enthusiastic when it comes to any extracurricular activity related to international law and international relations. Her only participation as a Judge ufrgsmodelunitednations2010 1

in the International Court of Justice was at this year s AMUN, and she had a wonderful time, what made her even more confident about ICJ being one of the most enriching experiences to take part of. As her first experience in the academic staff of UFRGSMUN, she is thrilled to be part of the ICJ. This year, the Members of the Court are expected to analyze two contentious cases: one concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) and the other regarding Jurisdictional Immunities of the State (Germany v. Italy). Please note that this Study Guide was designed to introduce you to the topics and provide some help with the beginning of your research. Since the discussions in the Court are mainly technical and require some knowledge of international law, we strongly encourage you to get acquainted with the issues presented. For that reason, we recommend that you search for books and articles on general public international law, as well as for previous ICJ judgments related to the present cases. We would also like to thank the UFRGSMUN Secretariat, especially our Secretary-General Luciana Ghiggi, for all the support and enthusiasm in conducting this simulation. Moreover, we want to thank Diego Canabarro, Joyce Copstein Wainberg and Kauê Ávila Petry for their help in correcting this Study Guide, as well as Christian Slomp Perrone for the material sent to enrich our researches. Thank you for deciding to participate in this year s simulation of the ICJ! We are looking forward to meet you on 5 th November. Please don t hesitate to contact us any time you wish. Best regards, Andressa Santos Michel President Mariana Camargo Contessa Vice-President Luíza Leão Soares Pereira Registrar ufrgsmodelunitednations2010 2

INTRODUCTION The ICJ Commonly referred to as The World Court, the International Court of Justice (ICJ) is the result of a continuous development that aimed at crystallizing the practice of peaceful settlement of disputes (BROWNLIE, 2008). Previously to the creation of ICJ, non-permanent courts organized ad hoc Arbitral Tribunals to settle international disputes. The institution of a permanent court with the same objective was achieved only in 1899, when the Permanent Court of Arbitration was created. Even though it had a much more limited scope of action, it contributed in an important way to the existence of the ICJ as it is today. Addressing the necessity for the institution of an international tribunal, the League of Nations created in 1922 the Permanent Court of International Justice (PCIJ), a judicial body with yet no power to amend its statute or exercise compulsory jurisdiction. This body was the predecessor of the International Court of Justice, which was created in 1945 by the Charter of the United Nations and basically inherited PCIJ's Statute with few revisions. Since then, the ICJ has exercised jurisdiction on around 100 judgments (including Advisory Opinions) and more than 40 Orders related to provisional measures. It is today regarded [everywhere] as the guardian of international law (HIGGINS, 2007, pg.13). The Court is composed by 15 judges elected from their own merits as jurists. The judges are elected to nine-year terms by the United Nations General Assembly and the Security Council, in a simultaneous voting procedure held in each one of these organs 1. ICJ judges are expected to act as neutral elements in order to decide based on their knowledge of international law, and not on their State of nationality s interests. The ICJ has two specific possibilities to act through Contentious Cases, which are binding to the respective States that brought the case before the Court, or through Advisory Opinions 2. The latter are a symbol of the Court s moral appeal, as they constitute a guide in obscure situations to the most internationally lawful path. 1 Available at http://www.icj-cij.org/court/index.php?p1=1&p2=2. Last accessed: August 24, 2010. 2 Although Advisory Opinions are generally not binding, they can be enforced when related to specific matters concerning the functioning and competences of UN organs, i.e., when the ICJ is called upon to judge appeals from decisions of the UN Administrative Tribunal. ufrgsmodelunitednations2010 3

The Court can exercise its jurisdiction either by contentious or advisory form. As previously exposed, on the first case we have a legal dispute between two State parties that can accept the Court s jurisdiction in a variety of manners. On the other hand, the Advisory Opinions are the way the Court sheds light upon a certain dim aspect of a legal question that was brought before it by a UN body authorized by or in accordance with the Charter of the United Nations 3. In Contentious Cases, States must show their sovereign will for the Court to exercise jurisdiction. States can do that by demonstrating their volition through different manners. One of them is by a special agreement or compromis, a document presented ad hoc before the Court by both parties. Moreover, a party can propose a unilateral declaration to be followed by a formal consent, through a communication addressed to the Court or simply by attending proceedings. State s acceptance of jurisdiction can take form by an ante hoc provision on a treaty clause to which a State is a signatory, granting jurisdiction in advance when there are treaty provisions at stake. Articles 36 (5) and 37 of the ICJ Statute ( the Statute ) deal specifically with this kind of acceptance, establishing that the issues under PCIJ jurisdiction would be transferred to the ICJ. States can also accept ICJ jurisdiction by becoming members of the United Nations. When a State takes part in the UN, it automatically becomes a party to the ICJ Statute and obliges itself to observe its provisions, which will have the status of hard law upon UN member States. States can also grant jurisdiction by informal means, known as post hoc, when a claim against them is brought before the ICJ and they either communicate the Court of their acceptance or simply appear before it for proceedings, being called forum prorrogatum. This year, both topics proposed to UFRGSMUN ICJ judges are Contentious Cases, which were brought before the Court by Georgia and Germany against the Russian Federation and Italy, respectively. The advisory jurisdiction is exercised when States submit a legal question to the ICJ requesting its consultative opinion on the matter. It is based on the authorization given by Article 96 of the UN Charter to the General Assembly, the Security Council 3 UN Charter, 1945, Article 65. ufrgsmodelunitednations2010 4

and other organs of the UN system and specialized agencies, with prior leave from the General Assembly on the last two. All these organs have the power to ask the ICJ to issue an Advisory Opinion.. Advisory opinions issued by the ICJ regularly have no binding effect on UN member States, but its importance in the international scenario is of such a nature that States tend to comply with the Court s understanding on advisory proceedings. ufrgsmodelunitednations2010 5

TOPIC AREA A: APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (GEORGIA V. RUSSIAN FEDERATION) By Andressa Santos Michel, Luíza Leão Soares Pereira, Mariana Camargo Contessa. 1. INTRODUCTION The Georgian Republic was a part of the Soviet Union until the progressive dismemberment of the several Soviet Republics which formed the latter 4. The dismemberment process made even more evident the different backgrounds of these former Soviet Union countries and gave rise to a series of disputes in the region, such as the present conflict between Georgia and Russia. Georgia is divided in many regions, two of them being Abkhazia and South Ossetia. These areas are, according to Georgia, of heterogeneous ethnicities 5. During the past years, Georgia entered into conflicts with the Russian Federation, alleging that the Russia has acted in concert with South Ossetian and Abkhaz separatist forces to promote racial discrimination through attacks against, and mass-expulsion of, ethnic Georgians living in these areas. Russia, on the other hand, claims that Abkhazia and South Ossetia are being deprived of their independent status by Georgia since the rise in the country of nationalist groups. According to Russia, while on 9 April 1991 Georgia declared its independence, it denied the right of self-determination to Abkhazia and South Ossetia 6. 2. STATEMENT OF THE ISSUE In view of the above mentioned situation, on 12 August 2008, Georgia filed an application against the Russian Federation before the International Court of Justice claiming that Russia has breached its obligations under the Convention for the Elimination of Racial Discrimination (CERD), on the grounds that 4 The Former Soviet Republics are: Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldavia, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan. 5 Request for the Indication of Provisional Measures on the case Georgia v. Russian Federation. Available at http://www.icj-cij.org/docket/files/140/14801.pdf. Last accessed: August 23, 2010. 6 Idem. ufrgsmodelunitednations2010 6

Secondly, Georgia alleges that the Russian Federation, acting through its organs, agents, persons and entities exercising elements of governmental authority, and through South Ossetian and Abkhaz separatist forces under its direction and control, has practised, sponsored and supported racial discrimination through attacks against, and mass-expulsion of, ethnic Georgians, as well as other ethnic groups, in the South Ossetia and Abkhazia regions of the Republic of Georgia. These actions have resulted in significant changes in the ethnic composition of South Ossetia and Abkhazia. The Russian Federation seeks to consolidate these changes by preventing the return to South Ossetia and Abkhazia of forcibly displaced ethnic Georgians citizens and by undermining Georgia s capacity to exercise jurisdiction in this part of its territory. The changed demographic situation in South Ossetia and Abkhazia is intended to provide the foundation for the unlawful assertion of independence from Georgia by the de facto South Ossetian and Abkhaz separatist authorities, as supported by the Russian Federation most egregiously in its 8 August 2008 invasion of Georgia 7. in furtherance of its policy to support South Ossetian and Abkhaz separatists, the Russian Federation has taken other actions that violate CERD. By way of example, the Russian Federation has conferred its citizenship upon almost the entire non-ethnic Georgian population of South Ossetia and Abkhazia and now seeks to justify its discriminatory military intervention on the side of the South Ossetian and Abkhaz separatists by reference to the presence of Russian citizens in those regions. Ethnic Georgians remaining in the Gali District of Abkhazia, for instance, who have refused to renounce their Georgian citizenship in favour of Russian citizenship, have faced active intimidation and harassment by soldiers associated with armed forces of the Russian Federation. In South Ossetia, those ethnic Georgians who remain have faced similar circumstances (idem). 2.1. Georgia s Allegations 2.1.1. As to the jurisdiction of the International Court of Justice In its Application, Georgia recalls Article 36, paragraph 1, of the Statute of the ICJ, which provides that the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. Claiming that both States involved are members of the United Nations and therefore are parties of the Statute of the Court, Georgia states that its applicability is unquestionable. 7 Available at http://www.icj-cij.org/docket/files/140/14657.pdf. Last accessed: August 23, 2010. ufrgsmodelunitednations2010 7

Additionally, the Applicant sustains that Article 22 of CERD 8 confers jurisdiction on the International Court of Justice to solve disputes between State parties to the Convention. It further stresses that both Russia and Georgia are parties to CERD, having ratified the treaty in 1969 and 1999, respectively. The Republic of Georgia reminds that neither of the parties has presented any reservation to Article 22 of the Convention, which establishes that [a]ny dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement 9. On these grounds, Georgia contends that the ICJ has jurisdiction to analyze and judge the present dispute. 2.1.2. As to Russia s violation of its obligations under CERD to prevent, eradicate and refrain from engaging in acts of racial discrimination Georgia alleges that the Russian Federation, acting through its organs, agents, persons and entities exercising governmental authorities, as well as through South Ossetian and Abkhaz separatist forces under its direction and control, has committed, sponsored and supported acts of racial discrimination, thus breaching its obligations under CERD 10. The Republic of Georgia affirms that Russia has violated the provisions of Articles 2, 3, 4, 5 and 6 of CERD. It argues that the mentioned infringements have been undertaken through three distinct phases of Russia s intervention in Georgian territory. The first phase enumerated by Georgia concerns the period between 1990 and 1994, in which Russia allegedly provided support for South Ossetian and Abkhaz separatists forces to attack and expulse ethnic Georgians from the territories of South Ossetia and Abkhazia, obliging them to flee their homes and contributing to the development of a considerable population of internally displaced persons (IDPs). The 8 The Convention is available at: http://www2.ohchr.org/english/law/cerd.htm. last accessed: September 20, 2010. 9 CERD, Article 22. 10 Georgia s Application, p. 4. Available at http://www.icj-cij.org/docket/files/140/14657.pdf. Last accessed: August 23, 2010. ufrgsmodelunitednations2010 8

Applicant claims that these attacks are considered as ethnic cleansing based on statements of the United Nations and of the Organization for Security and Co-operation in Europe (OSCE) 11. The second phase would range from 24 June 1994 to 7 August 2008 and, according to Georgia, consisted in a disguised Russian intervention in South Ossetia and Abkhazia as a peacekeeping force. This was achieved through two agreements signed by Georgia, Russia and the separatist forces of South Ossetia and Abkhazia: the 1992 Agreement on the Principles of the Settlement of the Georgian-Ossetian Conflict (known as the Sochi Agreement ) and the 1994 Moscow Agreement on a Ceasefire and Separation of Forces (named the Moscow Agreement ). Georgia contends that under cover of its peacekeeping mandate, the Russian Federation has sought to consolidate the forced displacement of the ethnic Georgian and other populations that resulted from ethnic cleansing from 1991 to 1994 12. The third and last phase of Russian intervention in Georgia s internal affairs indicated by the Applicant started on August 8 th, 2008, when, according to the Applicant, Russian forces invaded Georgian territory to support separatist movements in South Ossetia and Abkhazia. The Republic of Georgia sustains that the acts of discrimination taken by Russia against Georgians and other ethnic groups include murder, attacks against civilians and civilian objects, torture, rape, deportation and forcible transfer, as well as imprisonment, hostage-taking and unlawful appropriation of property. Moreover, Georgia alleges that Russia has engaged in acts of racial discrimination by forcing ethnic Georgians to adopt Russian citizenship through intimidation and threats such as expulsions and the establishment of punitive taxes. In the view of the Republic of Georgia, the measures taken by Russia seek to deprive the population in South Ossetia and Abkhazia of Georgian political, social and cultural influence, therefore denying the people of Georgia their fundamental right to selfdetermination according to CERD 13. Georgia further states that the Russian Federation has violated its obligations under CERD by providing material and financial support to the South Ossetian and Abkhaz separatist forces in their quest for independence, consequently reinforcing 11 United Nations General Assembly Resolution A/RES/62/249; OSCE, 1994. 12 Georgia s Application, p. 6. Available at http://www.icj-cij.org/docket/files/140/14657.pdf. 13 CERD General Recommendation XXI, 1996. ufrgsmodelunitednations2010 9

discrimination against ethnic Georgians and other groups in these regions. As a result, Georgia claims that it cannot exercise jurisdiction over these areas, being thus impeded of interfering in the alleged acts of racial discrimination and prevented from fulfilling its own obligations towards CERD. 2.1.3. As to Russia s violation of its obligations under CERD to ensure the return of IDPs and to refrain from unlawful appropriation of their homes and property Georgia recalls CERD General Recommendation XXII, which provides that all such refugees and displaced persons have the right freely to return to their homes of origin under conditions of safety. In its paragraph 2 (c), CERD General Recommendation XXII establishes that all such refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void. In light of these provisions, Georgia argues that Russia has breached its obligations under CERD by collaborating with the separatist movements in South Ossetia and Abkhazia in order to expel ethnic Georgians from these areas. Furthermore, Georgia asserts that Russia has sought to consolidate the forced displacement of ethnic Georgians by denying them the right to return to their homes under cover of its peacekeeping mandate 14. The Republic of Georgia alleges that Russia s obstruction of the return of IDPs has forced demographic changes upon the population in South Ossetia and Abkhazia. To illustrate its claims, Georgia refers to the situation of the Sukhumi District in Abkhazia, where 44.1% of the population was of Georgian ethnicity, whilst 5.1% of it was Abkhaz. After an offensive conducted both by Abkhazian separatists and Russian forces, a 1997 census indicated that the composition of the District had been altered to 5% ethnic Georgians and 59.9% Abkhaz 15. 14 Georgia s Application, p. 6. Available at http://www.icj-cij.org/docket/files/140/14657.pdf. Last accessed: August 23, 2010. 15 Idem, p. 24. ufrgsmodelunitednations2010 10

Georgia also presents the opinion of the United Nations General Assembly on the mentioned clashes, stating that UNGA Resolution A/RES/62/249 of 2008 has expressed concern at the demographic changes resulting from the conflict in Abkhazia, Georgia, and regretting any attempt to alter the pre-conflict demographic composition of Abkhazia, Georgia 16. In this sense, the Republic of Georgia contends that Russia has engaged in widespread and systematic discrimination against South Ossetia s and Abkhazia s ethnic Georgians and other refugees and IDPs by denying them the right to return to their homes, among other measures such as deportation, forcible transfer, unlawful appropriation of property and sale of homes belonging to the displaced population 17. In view of all referred breaches of obligations established by CERD, Georgia alleges the necessity of Russia to pay full compensation for its role in supporting and failing to bring to an end the consequences of the ethnic cleansing of the 1991-1994 conflicts. Moreover, Georgia sustains the necessity of withdrawal of Russian forces from South Ossetia and Abkhazia in order to allow the Georgian government to reestablish its jurisdiction and control over these areas. Finally, Georgia requires that the Russian Federation pay full compensation for all injuries resulting from its internationally wrongful acts. 2.1.4. Georgia s Plead for Provisional Measures Based on Article 41 of the Statute of the Court and on Articles 73, 74 and 75 of the Rules of the Court, Georgia requested the ICJ to indicate provisional measures to preserve its rights under CERD against violent discriminatory acts allegedly taken by Russian armed forces. 18 According to Georgia, the adoption of these measures is necessary to preserve the rights of the parties pending the decision of the Court, due to danger of irreparable prejudice to rights under dispute in judicial proceedings 19. 16 UNGA A/RES/62/249, 29 May 2008. 17 Georgia s Application, p. 42. Available at http://www.icj-cij.org/docket/files/140/14657.pdf. Last accessed: August 23, 2010. 18 Request for the Indication of Provisional Measures of Protection submitted by the Government of the Republic of Georgia. Available at http://www.icj-cij.org/docket/files/140/14663.pdf. Last accessed: August 23, 2010. 19 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 3, at 19 (para. 34). ufrgsmodelunitednations2010 11

In order to justify its request, Georgia claims that, in spite of Russia s declaration of a ceasefire, it has persisted in eliminating Georgian civilians and villages in South Ossetia and Abkhazia, thus demonstrating its intention to expand the boundaries under control of these regions separatist authorities, changing the demographic composition of these areas. Georgia further states that, on August 13 th, 2008, only one day after filing the Application in this case, evidence has emerged that Russia, acting in accordance with South Ossetia and Abkhaz separatist authorities, has betrothed a campaign of ethnic cleansing in the zones in conflict and committed several discriminatory human rights abuses against ethnic Georgians in and around these regions 20. Georgia explains that the Request for the Indication of Provisional Measures is intended to compel Russia to observe its obligations under CERD to prevent acts of racial discrimination, especially the rights set forth in Articles 2, 3, 4, 5 and 6 of CERD and specified in paragraph 81 of the Application. Therefore, the Republic of Georgia asked the ICJ to order the following provisional measures to protect its rights pending the decision on the merits of the case: (a) the Russian Federation shall give full effect to its obligations under CERD; (b) the Russian Federation shall immediately cease and desist from any and ail conduct that could result, directly or indirectly, in any form of ethnic discrimination by its armed forces, or other organs, agents, and persons and entities exercising elements of governmental authority, or through separatist forces in South Ossetia and Abkhazia under its direction and control, or in territories under the occupation or effective control of Russian forces; (c) the Russian Federation shall in particular immediately cease and desist from discriminatory violations of the human rights of ethnic Georgians, including attacks against civilians and civilian objects, murder, forced displacement, denial of humanitarian assistance, extensive pillage and destruction of towns and villages, and any measures that would render permanent the denial of the right to return of IDPs, in South Ossetia and adjoining regions of Georgia, and in Abkhazia and adjoining regions of Georgia, and any other territories under Russian occupation or effective control. On 25 August, 2008, Georgia, referring to the rapidly changing circumstances in Abkhazia and South Ossetia, submitted to the ICJ an Amended Request for the Indication of Provisional Measures of Protection. 20 Request for the Indication of Provisional Measures of Protection submitted by the Government of the Republic of Georgia. Available at http://www.icj-cij.org/docket/files/140/14663.pdf. Last accessed: August 23, 2010. ufrgsmodelunitednations2010 12

In its Amended Request, Georgia asserted that, after its invasion of Georgian territory on 8 August, Russia took control of South Ossetia, Abkhazia and adjacent areas within Georgia, instituting discriminatory treatment and conducting a campaign aiming at the mass-expulsion of the ethnic Georgian population of these regions. The Republic of Georgia argued that, due to Russia s continuing discrimination against ethnic Georgians in these areas, the remaining ethnic Georgians in South Ossetia, Abkhazia, and adjacent regions, are at imminent risk of violent expulsion, death or personal injury, hostage-taking and unlawful detention, and damage to or loss of their homes and other property 21. In furtherance of its allegations, Georgia claimed that the prospects for the return of those ethnic Georgians who have already been forced to flee are rapidly deteriorating 22. For that reasons, as a matter of urgency, Georgia requested the Court to order the following provisional measures to prevent irreparable harm to the rights of ethnic Georgians under CERD, pending deliberation on the merits of the case: (a) The Russian Federation shall take all necessary measures to ensure that no ethnic Georgians or any other persons are subject to violent or coercive acts of racial discrimination, including but not limited to the threat or infliction of death or bodily ham, hostage-taking and unlawful detention, the destruction or pillage of property, and other acts intended to expel them from their homes or villages in South Ossetia, Abkhazia and/or adjacent regions within Georgia; (b) The Russian Federation shall take all necessary measures to prevent groups or individuals from subjecting ethnic Georgians to coercive acts of racial discrimination, including but not limited to the threat or infliction of death or bodily ham, hostage-taking and unlawful detention, the destruction or theft of property, and other acts intended to expel them from their homes or villages in South Ossetia, Abkhazia and/or adjacent regions within Georgia; (c) The Russian Federation shall refrain from adopting any measures that would prejudice the right of ethnic Georgians to participate fully and equally in the public affairs of South Ossetia, Abkhazia and/or adjacent regions of Georgia. (d) The Russian Federation shall refrain from taking any actions or supporting any measures that would have the effect of denying the exercise by ethnic Georgians and any other persons who have been expelled from South Ossetia, Abkhazia, and adjacent regions on the basis of their ethnicity or nationality, their right of return to their homes of origin; 21 Amended Request for the Indication of Provisional Measures of Protection. Available at http://www.icjcij.org/docket/files/140/14689.pdf. Last accessed: August 23, 2010. 22 Idem. ufrgsmodelunitednations2010 13

(e) The Russian Federation shall refrain from taking any actions or supporting any measures by any group or individual that obstructs or hinders the exercise of the right of return to South Ossetia, Abkhazia, and adjacent regions by ethnic Georgians and any other persons who have been expelled from those regions on the basis of their ethnicity or nationality; (f) The Russian Federation shall refrain from adopting any measures that would prejudice the right of ethnic Georgians to participate fully and equally in public affairs upon their return to South Ossetia, Abkhazia, and adjacent regions. 2.2. Allegations of the Russian Federation 23 During public sittings held for the decision on the Request for the Indication of Provisional Measures, Agents for the Russian Federation stated that this is not a dispute under CERD and that the ICJ has no jurisdiction over the present case. Moreover, they sustained that the violations claimed by Georgia do not fall within the provisions of CERD and that Articles 2 and 5 of the Convention are not applicable extraterritorially. The Russian Federation stressed that it has never had effective control over South Ossetia and Abkhazia and therefore acts of organs, agents or individuals from these regions are not attributable to Russia. Finally, the Respondent alleges that the criteria for the grant of provisional measures are not met in this case, since there is no urgency or serious risk of irreparable prejudice. Concerning Georgia s alleged first phase of the Russian intervention in Abkhazia and South Ossetia, Russia explains that ethnic tensions in these regions had been exacerbated with the coming to power in Georgia of nationalists seeking independence, thus creating a situation in which Abkhazia and South Ossetia were deprived of their autonomous status, a fact that provoked reaction from Abkhaz and South Ossetian forces and resulted in clashes with deaths and losses from both sides. Russia contends that the situation in these areas was controlled by the signing of peace treaties in South Ossetia and Abkhazia in 1992 and 1994 respectively, with the deployment of Russian peacekeepers acting as the Collective Peacekeeping Force of the 23 CR 2008/23. Public sitting held on Monday 8 September 2008, at 3 p.m., at the Peace Palace, President Higgins presiding, in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). Available at http://www.icjcij.org/docket/files/140/14713.pdf; CR 2008/27 Public sitting held on Wednesday 10 September 2008, at 4.30 p.m., at the Peace Palace, President Higgins presiding, in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). Available at http://www.icj-cij.org/docket/files/140/14723.pdf. Last accessed: August 23, 2010. ufrgsmodelunitednations2010 14

Commonwealth of Independent States. The Respondent calls attention to the fact that the mechanisms for peacekeeping and negotiation received the support of international governmental organizations such as the United Nations and the OSCE, and of Georgia itself 24. Russia sustains that the situation deteriorated when President Saakashvili assumed power in Georgia in 2003 and ordered the deployment of Georgian troops in areas reserved solely for the peacekeeping forces. In this sense, it argues that Georgia was the one to renounce the ceasefire and breach the agreements and decisions of the United Nations. Russia claims that the massive destruction of villages in South Ossetia and Abkhazia as well as the forced displacement of its population was due to attacks conducted by Georgian forces, mainly the strife in Tskhinvali on 7 August, 2008, causing a real humanitarian disaster 25. Russia also alleges that Georgian members of the Collective Peacekeeping Force deliberately opened fire against their Russian comrades, killing and wounding some of them. The Respondent concludes that it has maintained its role as mediator in the conflicts and has always put effort in solving the controversies by diplomatic means. Moreover, Russia declares its acknowledgement of the territorial integrity of Georgia, even after holding two referenda in which the majority of the Abkhaz and South Ossetian populations voted in favor of independence. Furthermore, the Russian Federation denies depriving ethnic Georgians the right to return to their homes in South Ossetia and Abkhazia, alleging that on 4 April 1994 it signed an agreement on the voluntary return of displaced persons together with Georgia, Abkhazia and the United Nations High Commissioner for Refugees. Russia summarizes its position stating that the present dispute does not relate in any matter to violations of rights under CERD. It claims that [i]f there were a dispute, it would relate to the use of force, humanitarian law, territorial integrity, but in any case not to racial discrimination 26. Moreover, the Respondent contends that any unlawful action that might have taken place in Georgia cannot be attributed to Russia, since it lacks control over the 24 Order of 15 October 2008, Request for the Indication of Provisional Measures, p. 37. Available at http://www.icj-cij.org/docket/files/140/14801.pdf?phpsessid=d5f790a593429aa77dc05f4aa7edac44. Last accessed: August 23, 2010. 25 Idem, p. 39. 26 Idem, p. 51. ufrgsmodelunitednations2010 15

South Ossetian and Abkhaz forces which were responsible for the conflicts. The Russian Federation also argues that, even if CERD was applicable, the Court has no jurisdiction to analyze the dispute because the requirements of Article 22 have not been fulfilled, since there was no recourse to the Committee on Racial Discrimination before the filing of the case before the International Court of Justice. Alternatively, if the Court finds that it has jurisdiction on the case, Russia alleges that there are no grounds for the indication of provisional measures, for there is no evidence of risk of urgency or irreparable harm to Georgia s rights in the present dispute. Therefore, it requests the Court to remove the case introduced by Georgia from the General List. 2.3. Reasoning of the Court concerning Provisional Measures In order to allow the Judges to deliberate on Georgia s Request for the Indication of Provisional Measures, public hearings were held on 8, 9 and 10 September 2008, according to the proceedings set forth in Article 74, paragraph 3, of the Rules of Court. In these occasions, both parties made oral statements. In view of Georgia s and Russia s allegations, the International Court of Justice understood that there is no restriction of a general nature in CERD relating to its territorial application and that it could be applied to the conduct of a State party even when acting outside its territory 27. In this sense, the Court found that it has prima facie jurisdiction under Article 22 of CERD to analyze the dispute relating to the interpretation or application of the Convention and, therefore, to address the Request for the Indication of Provisional Measures and its Amendment. The ICJ recalled its previous judgments on provisional measures in the LaGrand Case, in the Passage through the Great Belt Case, in the Pulp Mills Case and in the Case concerning Certain Criminal Proceeding in France to state that its power to indicate provisional measures presupposes the existence of an urgent situation and danger of irreparable harm to the rights in dispute 28. 27 Order of 15 October 2008. Request for the Indication of Provisional Measures. p.31. Available at http://www.icj-cij.org/docket/files/140/14809.pdf. Last accessed: August 23, 2010. 28 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), pp. 14-15, parag. 22); Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17, parag. 23; Certain Criminal Proceedings in ufrgsmodelunitednations2010 16

The Court further affirmed that it was not called upon to establish the existence of violations to CERD, but to decide whether the circumstances of the case demand the indication of provisional measures. In light of this argument, the ICJ sustained that the rights invoked by Georgia, especially the ones of Article 5, paragraphs (b), (d) and (i) of CERD are of such a nature that prejudice to them could be irreparable 29. Hence, the Court acknowledged that the situation in South Ossetia, Abkhazia and adjacent regions is unstable and that ethnic Georgians who live in these areas are vulnerable. Moreover, it recognized that the problems of refugees and IDPs in these regions have not been entirely solved. Consequently, the Court asserted that in the circumstances brought to its attention in which there is a serious risk of acts of racial discrimination being committed, Georgia and the Russian Federation, whether or not any such acts in the past may be legally attributable to them, are under a clear obligation to do all in their power to ensure that any such acts are not committed in the future 30. In this sense, the ICJ, reminding the parties of their duty to comply with their obligations under CERD, indicated the following provisional measures: A. By eight votes to seven, Both Parties, within South Ossetia and Abkhazia and adjacent areas in Georgia, shall (1) refrain from any act of racial discrimination against persons, groups of persons or institutions; (2) abstain from sponsoring, defending or supporting racial discrimination by any persons or organizations, (3) do all in their power, whenever and wherever possible, to ensure, without distinction as to national or ethnic origin, (i) security of persons; (ii) the right of persons to freedom of movement and residence within the border of the State; (iii) the protection of the property of displaced persons and of refugees; (4) do all in their power to ensure that public authorities and public institutions under their control or influence do not engage in acts of racial discrimination against persons, groups of persons or institutions; B. By eight votes to seven, France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 107, parag. 22; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Preliminary Objections, Order of 23 January 2007, p.11, parag.32. 29 Order of 15 October 2008. Request for the Indication of Provisional Measures. p.39. Available at http://www.icj-cij.org/docket/files/140/14809.pdf. Last accessed: August 23, 2010. 30 Ibidem, p.40. Available at http://www.icj-cij.org/docket/files/140/14809.pdf. Last accessed: August 23, 2010. ufrgsmodelunitednations2010 17

Both Parties shall facilitate, and refrain from placing any impediment to, humanitarian assistance in support of the rights to which the local population are entitled under the International Convention on the Elimination of All Forms of Racial Discrimination; C. By eight votes to seven, Each Party shall refrain from any action which might prejudice the rights of the other Party in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before the Court or make it more difficult to resolve; D. By eight votes to seven, Each Party shall inform the Court as to its compliance with the above provisional measures. The order of the Court on the Request for the Indication of Provisional Measures was accompanied by a Declaration by Judge ad hoc Gaja 31 and by a Joint Dissenting Opinion of Vice-President Al-Khasawneh and Judges Ranjeva, Shi, Koroma, Tomka, Bennouna and Skotnikov. In their Joint Dissenting Opinion, the mentioned members of the Court expressed their view that the Order nowhere demonstrates the existence of any risk of irreparable harm to Georgia s rights under CERD 32. 3. LEGAL THESES INVOLVED IN THE MERITS 3.1. The Convention on the Elimination of All Forms of Racial Discrimination (CERD) The Convention on the Elimination of All Forms of Racial Discrimination was opened for signature in 1965 by the General Assembly Resolution 2106 (XX) and became effective in 1969, after its ratification by 27 States. Nowadays, it has 85 signatories and 173 parties 33. 3.1.1. Purposes of CERD In its Preamble, CERD states that all human beings are born equal and that they are entitled to equal protection before the law, without any discrimination. 31 Available at http://www.icj-cij.org/docket/files/140/14806.pdf. Last accessed: August 24, 2010. 32 Available at http://www.icj-cij.org/docket/files/140/14805.pdf. Last accessed: August 24, 2010. 33 Available at http://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-2&chapte r=4&lang=en. Last accessed: August 24, 2010. ufrgsmodelunitednations2010 18

Furthermore, it reinforces that one of the purposes of the United Nations is to promote and support respect for and compliance with human rights and fundamental freedoms for all, without distinctions concerning race, sex, language or religion 34. The Convention itself establishes the meaning of the term racial discrimination, which is defined as [a]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life 35. By adhering to CERD, each State party is compromised to condemn racial discrimination and undertakes to eliminate it in all its forms. Moreover, it becomes obliged not to engage in, defend or support any act or practice of racial discrimination 36. The States parties are also required to guarantee that no act of racial discrimination is committed in its territory and must assure to every person the enjoyment of a series of rights laid down in Article 5, such as the right to equal treatment before tribunals and the right of freedom of movement. 37 3.1.2. Status of the parties in relation to the Convention Both parties to the present dispute are parties to CERD. Georgia ratified the Convention in June 1999 and subsequently recognized the competence of the Committee on the Elimination of Racial Discrimination 38 by a declaration issued in 2005 39. 34 CERD,1969, Preamble. Available at http://www2.ohchr.org/english/law/cerd.htm. Last accessed: August 24, 2010. 35 Ibidem, Article 1. 36 Ibidem, Article 2. 37 Ibidem, Articles 3 and 5. 38 The Committee on the Elimination of Racial Discrimination is a body of experts which monitor the implementation of the Convention on the Elimination of All Forms of Racial Discrimination by its parties. All States must submit reports to the Committee explaining how the rights established under the Convention are being enforced. Based on that, the Committee examines the material provided and gives recommendations to each State party. Moreover, the Committee is also responsible for issuing general recommendations concerning the application of the Convention and for establishing the interpretation of human rights provisions. 39 Available at http://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-2&chapter=4 &lang=en#enddec. ufrgsmodelunitednations2010 19

The Russian Federation has signed CERD in 1966 and ratified it in February 1969. It has opposed to Article 17, paragraph 1, of the Convention, which deprives a number of States to be parties of the treaty. As asserted by the Russian State, in accordance with the principle of the sovereign equality of States, the Convention should be open to participation by all interested States without discrimination or restriction of any kind 40. Moreover, the government of the Union of Soviet Socialist Republics, a part of which later formed the territory of Russia, has decided in 1989 to withdraw the reservations previously made to Article 22 of CERD 41. 3.2. Territorial integrity Territorial integrity is a right enjoyed by all sovereign states not to be deprived from parts of their territory either by secession or by loss of effective control over certain parts of the land within its borders. According to Judge Koroma s Dissenting Opinion on the Kosovo Advisory Opinion, the principle of territorial integrity would be the one by which a State exercises sovereignty within and over its territorial domain 42. 3.2.1. Sovereignty State sovereignty is an embedded basis for international law since the beginning of its study until the present date (BAYLIS, SMITH, OWENS, 2008). Its content lays basically in the fact that every State is a legal person under international law and, that being so, an equal in comparison to all other States (BROWNLIE, 2008). According to Brownlie, the characters that summarize sovereignty and structure State equality under international law are: a) exclusive jurisdiction of a State in its territory towards its nationals, b) obligation not to intervene in any matters occurring within the territory of another State, and c) the duty to comply with international custom and with treaties to which it has deposited its consent (BROWNLIE, 2008). The last two are some of the main components in the analysis of the present case. 40 Idem. 41 Available at http://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-2&chapter=4 &lang=en#17. 42 Accordance with international law of the unilateral declaration of independence in respect of Kosovo, ICJ, Advisory Opinion of 22 July 2010, Dissenting Opinion Judge Koroma, p. 21. ufrgsmodelunitednations2010 20

3.2.2. Concept of territorial integrity Territorial integrity comprises one of the first and most important principles for the international order since the Westphalian Constitution of 1648. This idea lies on the basis of a State s right to exercise its exclusive, unqualified and supreme rule within a delimited territory (BAYLIS, SMITH, OWENS, 2008). According to Judge Cançado Trindade, on his Separate Opinion on the Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), under contemporary international law one of the fundamental principles of contemporary international law is that of respect for the sovereignty and territorial integrity of States 43. On its outset, this core principle of statehood was only limited to the boundaries of another State s sovereign affairs, and the word territory was key for this understanding. A State would not, if not by its sole consent, be deprived from its territory either by territorial secession or by loss of the territory s effective control (BAYLIS, SMITH, OWENS, 2008). The respect for this principle is outlined, along with several other documents, in the UN Charter, Article 2, Paragraph 4, which reads: all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations 44. The Declaration of Development of Friendly Relations Among States also upholds this principle, and, more specifically, continues advocating for it when expresses that the territorial integrity and political independence of the State are inviolable 45. In the present case, the judges will have to decide if the Georgian territorial integrity is being truly undermined by Russia because of alleged impossibility of the 43 Accordance with international law of the unilateral declaration of independence in respect of Kosovo, ICJ, Advisory Opinion of 22 July 2010, Separate Opinion of Judge Cançado Trindade. Available at http://www.icj-cij.org/docket/files/141/16003.pdf. Last accessed: August 24, 2010. 44 UN Charter, 1945. 45 The Declaration of Development of Friendly Relations Among States, Preamble. 1970. Available at http://www.hku.edu/law/conlawhk/conlaw/outline/outline4/2625.htm. Last accessed: August 24, 2010. ufrgsmodelunitednations2010 21