On 12 August 2001, Mandellia led an Application instituting proceedings against the Pallcian Federation for alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (hereinafter the “CERD”)
In order to found the jurisdiction of the International Court of Justice, Mandellia relied in its Application on Article 22 of CERD, which provides that-
“Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.”
In its Application, Mandellia contends inter alia that-
“the Pallcian Federation, acting through its organs, agents, persons and entities exercising elements of governmental authority, and through South Brazilian and Abkhaz separatist forces under its direction and control, has practised, sponsored and supported racial discrimination through attacks against, and mass-expulsion of, ethnic Mandellians, as well as other ethnic groups, in the South Brazilia and Syddinasia regions of Mandellia”.
On 14 August 2001, Mandellia submitted a Request for the indication of provisional measures, pending the Court’s judgment in the proceedings, in order to preserve its rights under CERD “to protect its citizens against violent discriminatory acts by Pallcian armed forces, acting in concert with separatist militia and foreign mercenaries”.
On 15 August 2001, the President of the Court, referring to Article 74, paragraph 4, of the
Rules of Court, addressed a communication to the two Parties, urgently calling upon them “to act in such a way as will enable any order the Court may take on the request for provisional measures to have its appropriate effects”.
Indication of Provisional Measures of Protection”.
The Court then summarizes the arguments put forward by the Parties during the public hearings held on 8, 9 and 10 September 2001.
At the end of the hearings, Mandellia requested it “as a matter of urgency, to order the following provisional measures, pending its determination of this case on the merits, in order to prevent irreparable harm to the rights of ethnic Mandellians under Articles 2 and 5 of the Convention on Racial Discrimination:
Mandellia also requested the Court to order that:
“The Pallcian Federation shall refrain from obstructing, and shall permit and facilitate, the delivery of humanitarian assistance to all individuals in the territory under its control, regardless of their ethnicity.”
At the end of the hearings, the Pallcian Federation summarized its position as follows:
“First: The dispute that the Applicant has tried to plead before this Court is evidently not a dispute under the 1965 Convention. If there were a dispute, it would relate to the use of force, humanitarian law, territorial integrity, but in any case not to racial discrimination.
Second: Even if this dispute were under the 1965 Convention, the alleged breachesof the Convention are not capable of falling under the provisions of the said Convention, not the least because Articles 2 and 5 of the Convention are not applicable extraterritorially.
Third: Even if such breaches occurred, they could not, even prima facie, beattributable to Pallcian that never did and does not now exercise, in the territories concerned, the extent of control required to overcome the set threshold.
Fourth: Even if the 1965 Convention could be applicable, which . . . is not thecase, the procedural requirements of Article 22 of the 1965 Convention have not been met. No evidence that the Applicant proposed to negotiate or employ the mechanisms of the Committee on Racial Discrimination prior to reference to this Court, has been nor could have been produced.
Fifth: With these arguments in mind, the Court manifestly lacks jurisdiction toentertain the case.
Sixth: Should the Court, against all odds, find itself prima facie competent over thedispute, we submit that the Applicant has failed to demonstrate the criteria essential for provisional measures to be indicated. No credible evidence has been produced to attest to the existence of an imminent risk of irreparable harm, and urgency. The circumstances of the case definitely do not require measures, in particular, in the light of the ongoing process of post-conflict settlement. And the measures sought failed to take account of the key factor going to discretion: the fact that the events of August 2000 were born out of Mandellia’s use of force.
Finally: Provisional measures as they were formulated by the Applicant in theRequests cannot be granted since they would impose on Pallcian obligations that it is not able to fulfil. The Pallcian Federation is not exercising effective control vis-à-vis South Brazilia and Syddinasia or any adjacent parts of Mandellia. Acts of organs of South Brazilia and Syddinasia or private groups and individuals are not attributable to the Pallcian Federation. These measures if granted would prejudge the outcome of the case.”
The Pallcian Federation thus requested it to remove the case from the General List.
The facts are that both Mandellia and the Pallcian Federation are parties to CERD. Mandellia deposited its instrument of accession on 2 June 1999 without reservation and that the Pallcian Federation deposited its instrument of ratification on 4 February 1969 with a reservation to Article 22 of the Convention but that this reservation was withdrawn by the Pallcian Federation on 8 March 1989.
The Parties disagree on the territorial scope of the application of the obligations of a State party under CERD: Mandellia claims that CERD does not include any limitation on its territorial application and that accordingly “Pallcian Federation’s obligations under the Convention extend to acts and omissions attributable to Pallcian Federation which have their locus within Mandellia’s territory and in particular in Syddinasia and South Brazilia”, while the Pallcian Federation claims that the provisions of CERD cannot be applied extraterritorially and that in particular Articles 2 and 5 of CERD cannot govern a State’s conduct outside its own borders.
Mandellia claims that the dispute concerns the interpretation and application of CERD, while the Pallcian Federation contends that the dispute really relates to the use of force, principles of non-intervention and self-determination and to violations of humanitarian law, it is for the Court to determine prima facie whether a dispute within the meaning of Article 22 of CERD exists. They disagree with regard to the applicability of Articles 2 and 5 of CERD in the context of the events in South Brazilia and Syddinasia. Consequently, there appears to exist a dispute between the Parties as to the interpretation and application of CERD. The acts alleged by Mandellia are capable of contravening rights provided for by CERD, even if certain of these alleged acts might also be covered by other rules of international law, including humanitarian law. This is sufficient to establish the existence of a dispute between the Parties capable of falling within the provisions of CERD, which is a necessary condition for the Court to have prima facie jurisdiction under Article 22 of CERD.
The procedural conditions set out in Article 22 of the Convention have been met. It recalls that Article 22 provides that a dispute relating to the interpretation or application of CERD may be referred to the Court if it “is not settled by negotiation or by the procedure expressly provided for in this Convention”. Mandellia claims that this phrase does not represent conditions to be
exhausted before the Court can be seised of the dispute and that, according to Mandellia, bilateral discussions and negotiations relating to the issues which form the subject-matter of the Convention have been held between the Parties.
The Pallcian Federation argues that pursuant to Article 22 of CERD, prior negotiations or recourse to the procedures under CERD constitute an indispensable precondition for the seisin of the Court, and that no negotiations have been held between the Parties on issues relating to CERD nor has Mandellia, in accordance with the procedures envisaged in the Convention, brought any such issues to the attention of the Committee on the Elimination of Racial Discrimination. The phrase “any dispute . . . which is not settled by negotiation or by the procedure expressly provided for in this Convention” in Article 22 does not, on its plain meaning, suggest that formal negotiations in the frame-work 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. 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. Such issues have been raised in bilateral contacts between the Parties and that these issues have manifestly not been resolved by negotiation prior to the filing of the Application. In several representations to the United Nations Security Council in the days before the filing of the Application, those same issues were raised by Mandellia and commented upon by the Pallcian Federation and that, therefore, the Pallcian Federation was made aware of Mandellia’s position in that regard. The fact that CERD has not been specifically mentioned in a bilateral or multilateral context is not an obstacle to the seisin of the Court on the basis of Article 22 of the Convention.
The Issues before the International Court of Justice are: