B. Jurisdiction

The Court commenced its consideration of the jurisdictional issues by remarking that on a request for the indication of provisional measures, the Court need not finally satisfy itself, before deciding whether or not to indicate such measures, that it had jurisdiction on the merits of the case, but it may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded.Footnote ² At this stage of the proceedings, Georgia sought to found the jurisdiction of the Court solely on the compromissory clause contained in Article 22 of CERD.Footnote ³ Thus the Court had to proceed to an examination of Article 22 of CERD to determine if it provided a prima facie basis for jurisdiction to rule on the merits such as would permit the Court, if it considered that the circumstances so warranted, to indicate provisional measures.Footnote ⁴

Article 22 of CERD provides that:

Both Georgia and the Russian Federation are parties to CERD; Georgia deposited its instrument of accession on 2 June 1999 without reservation; the USSR deposited its instrument of ratification on 4 February 1969 with a reservation to Article 22; by a communication received by the Secretary-General of the UN as depositary on 8 March 1989, the Government of the USSR notified the Secretary-General that it had decided to withdraw its reservation relating to article 22; accordingly, the Russian Federation, as the State continuing legal personality of the USSR, is a party to CERD without reservation.

After reciting in full the texts of Articles 1 (1) (the definitional article), and Articles 2 and 5 (substantive provisions), particular violations of which were invoked by Georgia in the present proceedings, the Court proceeded to deal with the first disputed issue of the territorial application of CERD. Georgia claimed that CERD does not include any limitation on its territorial application and that accordingly, ‘Russia's obligations under [CERD] extend to acts and omissions attributable to Russia which have their locus within Georgia's territory and in particular in Abkhazia and South Ossetia’. By contrast, the Russian Federation claimed that the provisions of CERD could not be applied extraterritorially, and that in particular Articles 2 and 5 of CERD cannot govern a State's conduct outside its own borders.Footnote ⁵

In a remarkably brief statement, the Court observed that there was no restriction of a general nature in CERD relating to its territorial application. Furthermore, it noted that neither Articles 2 nor 5 of CERD (violations of which were alleged by Georgia) contain a specific territorial limitation. Accordingly, the Court found that these provisions of CERD appear to apply, like other provisions of that nature, to the actions of a State party when it acts beyond its territory.Footnote ⁶ Interestingly, the Joint Dissenting Opinion by Vice-President Al-Khasawneh and Judges Ranjeva, Shi, Koroma, Tomka, Bennouna and Scotnikov, was completely silent on this point, presumably indicating concurrence with the view of the Court.

This articulation by the Court of the extra-territorial application of CERD is rather under-developed and lacks a certain amount of detailed analysis. In addition, it seems to ignore the structural differences between ‘general’ international human rights treaties such as the International Covenant on Civil & Political Rights (ICCPR) and ‘issue-specific’ human rights treaties such as CERD dealing with race discrimination. The nature of the two types of treaty is entirely different. It is true that Articles 2 and 5 of CERD contain no territorial limitation. However, Article 3 states expressly that ‘States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction’. The clear limitation to territorial jurisdiction established in this article is a reflection of the appreciation of the drafters of this Convention that a State can only prevent acts of racial discrimination within its own domestic territory, assuming that such territory is under its control. The more limited nature of a ‘specific’ human rights treaty warranted a more limited application. It must be remembered also that this was the first of the major international human rights treaties subsequent to the adoption of the Universal Declaration of Human Rights in 1948. Given the historical setting of CERD, it is rather unlikely that the drafters were contemplating anything other than a strictly territorial jurisdiction. Indeed, there is nothing in the travaux préparatoires of CERD to indicate that the drafters intended the document to impose obligations on States parties to prevent racial discrimination anywhere outside their territorial jurisdiction. Of course, the same could be said about the converse situation, as the Court itself argued. However, a general reading of the debates as a whole provides a sense that the overall thrust of the discussions related only to the intra-territorial prohibition of discrimination. By contrast, there is no explicit reference to any possibility of the Convention having extra-territorial effect. The reason is apparent: the drafters did not even envisage such a possibility. Indeed, there are frequent references to the eradication by States parties of practices taking place ‘in the territories subject to their jurisdiction’.Footnote ⁷ Overall, it is plain that the drafters had in mind each State's responsibility to enforce, and adhere to, the Conventional norms within its own borders. This interpretation is supported by the background to the adoption of CERD. The Convention was adopted in a response to a proliferation of wanton acts of ‘swastika-daubing’ and ‘other manifestations of anti-Semitism and other forms of racial and national hatred and religious and racial prejudices of a similar nature’ which occurred in many countries during the winter of 1959–60.Footnote ⁸ It is manifest that States can take effective action only in their own territories to eliminate such evils. Furthermore, in its General Recommendations, the Committee on Elimination of Racial Discrimination has consistently used expressions which highlight the strictly territorial nature of the obligations: ‘on whose territories’ and ‘in their respective territories’ in General Recommendation No II;Footnote ⁹ ‘all persons living in a given State’ in General Recommendation No XX;Footnote ¹⁰ and, ‘on the presence within their territory’ and ‘on their territory’ in General Recommendation XXIV.Footnote ¹¹ It is submitted that it was not intended that CERD should apply extra-territorially.

The second jurisdictional issue was whether there existed a dispute within the meaning of Article 22 of CERD. Georgia alleged that: (1) events in South Ossetia and Abkhazia have involved racial discrimination of ethnic Georgians living in these regions in violation of the provisions of Articles 2 and 5 of CERD; (2) displaced ethnic Georgians who have been expelled from South Ossetia and Abkhazia, have not been permitted to return to their place of residence in contravention of Article 5 of CERD; and (3) ethnic Georgians have been subject to violent attacks in South Ossetia since the ceasefire on 10 August in breach of Article 5 of CERD. By contrast, the Russian Federation asserted that the facts related exclusively to the use of force, humanitarian law and territorial integrity, and therefore did not fall within the scope of CERD.Footnote ¹² Thus, there was a difference of opinion between the parties on the issue of whether the events which occurred in South Ossetia and Abkhazia (particularly after 8 August 2008) gave rise to legal rights and obligations under CERD. The Court had to determine prima facie whether such a dispute existed.Footnote ¹³

The Court held that as the Parties disagreed on the applicability of Articles 2 and 5 of CERD in the context of events in South Ossetia and Abkhazia, there consequently appeared to be a dispute between them as to the interpretation and application of CERD. Furthermore, the acts alleged to have occurred by Georgia, appeared capable of contravening rights provided for by CERD, even if certain of these alleged acts might be covered also by other rules of international law, including humanitarian law. Accordingly at this stage, that was enough to establish the existence of a dispute between the parties capable of falling within the provisions of CERD, a necessary prerequisite for the Court to have prima facie jurisdiction under Article 22 of CERD.Footnote ¹⁴

The Joint Dissenting Opinion challenged the finding of the Court on this issue. The Opinion articulates the perfectly orthodox view that a dispute must exist prior to the seisin of the Court. First, the dissenting judges asked the question whether: ‘the violent acts which Georgia imputes to Russia [are] likely to “com[e] within the provisions” of CERD, to reprise the terminology which the Court employed to decline jurisdiction prima facie in its Order of 2 June 1999 on the Legality of Use of Force (Yugoslavia v Belgium) (Provisional Measures) Order of 2 June 1999, ICJ Reports 1999 (I) 138, para 41)?’ The Opinion argued that Russia's armed activities after 8 August could not, in and of themselves, constitute acts of racial discrimination in the sense of Article 1 of CERD unless it was proven that they were aimed at establishing a ‘distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin’. It was argued that the circumstances of the armed confrontation arising on 7/8 August were such that this could not be the case, and that it was difficult to consider that the armed acts in question, in and of themselves, and whether committed by Russia and Georgia, fell within the provisions of CERD.Footnote ¹⁵ Why the need for the ‘aim’ of establishing racially based discrimination is relevant is not immediately apparent. Whether or not these acts had this ‘aim’ is surely immaterial, if the acts indeed had the effects alleged of widespread breaches of CERD? Similarly, the armed acts may not ‘in and of themselves’ fall within the terms of CERD, but their consequences did. Secondly, the Joint Dissenting Opinion criticized the Court for concluding that a dispute appeared to exist as to the interpretation and applicability of CERD because the opposing Parties had manifested a disagreement over the applicability of Articles 2 and 5 of the Convention; the dissentients considered that this elevated an argument expounded during oral proceedings into evidence of a dispute between the Parties.Footnote ¹⁶ Surely, the whole point about pleadings, whether oral or written, is to ensure that a dispute has crystallized between the opposing Parties? And, this is exactly what happened here: thus, a dispute did exist. Thirdly, the Joint Dissenting Opinion criticized the assertion by the Court that ‘the acts alleged by Georgia appear to be 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’.Footnote ¹⁷ The basis of the criticism is unclear. If it is meant to suggest an artificial water tight division between international human rights law and humanitarian law, it is plainly misconceived. In sum, the arguments advanced by the Joint Dissenting Opinion lack convincing reasoning. It is asserted that the Court was right to find that a ‘dispute’ existed as to the application of interpretation of provisions of CERD.

The third disputed issue between the Parties was whether the procedural conditions laid down in article 22 had been satisfied; the Court needed to ascertain the fulfilment of these conditions before deciding if it had prima facie jurisdiction to deal with the case, and accordingly, also had the power to indicate provisional measures if it found that the circumstances so required. 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’. Georgia claimed that ‘this phrase was descriptive of the fact that that a dispute has not so been settled and does not represent conditions to be exhausted before the Court can be seized of the dispute’. In addition, Georgia claimed that ‘bilateral discussions and negotiations relating to the issues which form the subject matter of the Convention have been held between the Parties’. For its part, the Russian Federation submitted that: (1) ‘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’; (2) no negotiations had been held between the parties on issues relating to CERD; and (3) nor had Georgia brought any such issues to the attention of the Committee on the Elimination of Racial Discrimination in accordance with the procedures envisaged in CERD.Footnote ¹⁸

The Court observed that: (1) the structure of Article 22 of CERD was not identical to that in certain other instruments which required that a period of time should have elapsed or that arbitration should have been attempted before initiation of proceedings before the Court; (2) the phrase ‘any dispute … which is not settled by negotiation or by the procedure expressly provided for in this Convention’ did 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 of CERD constitute preconditions to be fulfilled before the seisin of the Court; (3) however, Article 22 suggested 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; (4) it was clear from the case file that such issues had been raised in bilateral contacts between the parties, and, that these issues had not been resolved by negotiation prior to filing of the Application; that in several representations to the UN Security Council in the days before the filing of the Application, those same issues were raised by Georgia and commented upon by the Russian Federation; accordingly, the Russian Federation was made aware of Georgia's position in that regard; the fact that CERD had not been mentioned specifically in a bilateral or multilateral context was not an obstacle to the seisin of the Court under Article 22 of CERD; and (5) neither Party claimed that the dispute had been brought to the attention of the Committee on Elimination of Racial Discrimination under the inter-State procedure detailed in Articles 11–13.Footnote ¹⁹

The Joint Dissenting Opinion dismissed the interpretation of the Court detailed in point (2) above on the issue of whether (assuming there was a dispute likely to fall within the provisions of CERD that existed between Georgia and Russia before the seisin of the Court) it had not been settled by ‘negotiation’. First, the Opinion remarked that the Court's interpretation would amount to denying any useful scope to the provision for ‘negotiation’ in Article 22 of CERD. Secondly, the Opinion remarked that although the Court had referred to bilateral contacts between the Parties and certain representations made to the Security Council, nowhere in these had Georgia accused Russia of racial discrimination. Thirdly, the Opinion suggested that ‘for the condition of prior negotiation to be fulfilled, it suffices for an attempt to have been made and for it to have become clear at some point that there was no chance of success. In any event, it is clear that when negotiation is expressly provided for by a treaty, the Court cannot ignore this prior condition without explanation; nor can the Court dispose of this condition merely by observing that the question has not been resolved by negotiation’.Footnote ²⁰ In substance, the Joint Dissenting Opinion argues that the Court at least should have asked itself whether negotiations had been opened and whether they were likely to yield a result, but it did not do so. It is suggested that in fact the Court broadly adopted this approach in its articulation in point (4) above, without perhaps expressly stating that the dispute had reached the point where it obviously could not be settled by negotiation.

The Joint Dissenting Opinion considered next whether the alternative criterion in Article 22 of CERD had been satisfied: that the dispute had not been settled by ‘the procedures expressly provided for in this Convention’. The Opinion rejected the Court's summary disposal of the issue characterizing it as ‘puzzling’, because it neither accepted the ordinary meaning of Article 22 nor its object and purpose which (the Opinion claimed) was to encourage the maximum number of States Parties to submit to the jurisdiction of the Court, with the assurance that the procedures provided for in the Convention would be exhausted first. Neither did the Court's interpretation refer to the travaux préparatoires for this Article drafted by the Third Committee of the General Assembly. The Opinion also made the point that the Court could have considered that the gravity of the situation when armed conflict erupted on 7/8 August did not allow for resort to these procedures, but remarked that that would have shown little confidence in the rapid response procedure developed by the Committee on Elimination of Racial Discrimination in 1993 to allow it to intervene quickly and effectively in cases of possible violations of the Convention.Footnote ²¹ This writer has considerable sympathy with the view that the point of Article 22 was to ensure the exhaustion of both negotiation and all internal to CERD methods of dispute resolution before a referral to the Court. However, it seems clear now that this interpretation may have been flawed. Neither the Court nor the Joint Dissenting Opinion refers to Article 16 of the Convention. This is a pity as it seems to hold the key to unlocking the correct interpretation of Article 22. Article 16 is worth setting out in full. It reads:

The final clause of this provision is sufficiently wide and elastic to suggest that exhaustion of the intra-treaty procedure specified in Article 22 is not a prerequisite of referral to the Court for resolution. Thus, it seems that the Court reached the right decision on this issue, albeit for a different reason.

Having disposed of all the objections to jurisdiction, the Court considered that prima facie it had jurisdiction under Article 22 of CERD to deal with the case to the extent that the subject-matter of the dispute related to the ‘interpretation or application’ of CERD. Thus, the Court could proceed to address the Request for the Indication of Provisional Measures.Footnote ²²

C. Provisional Measures Order

The Court began its consideration of this issue by articulating three basic principles underlying the indication of provisional measures. First, the power of the Court to indicate provisional measures under Article 41 of the Statute of the Court has as its object the preservation of the respective rights of the parties pending the decision of the Court, in order to ensure that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings.Footnote ²³ Secondly, it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged to belong to either the Applicant or Respondent.Footnote ²⁴ Thirdly, therefore, a link must be established between the alleged rights, the protection of which is the subject of the provisional measures being sought, and the subject of the proceedings before the Court on the merits of the case.Footnote ²⁵

After consideration of the arguments of the Parties, the Court noted that Articles 2 and 5 of CERD are intended to protect individuals from racial discrimination by obliging States parties to undertake certain measures specified therein.Footnote ²⁶ Furthermore, States parties to CERD had the right to demand compliance by a State party with specific obligations incumbent upon it pursuant to those provisions. Accordingly, there was a correlation between respect for individual rights, the obligations of States parties under CERD, and the right of States parties to seek compliance therewith. The Court concluded that the rights which Georgia invoked in, and sought to protect by, its Request for the Indication of Provisional Measures had a sufficient connection with the merits of the case it had brought, for the purposes of the present proceedings. Consequently, the Court considered that its attention must be focussed now upon the rights thus claimed in its consideration of Georgia's request for the indication of provisional measures.Footnote ²⁷

Having established the existence of the basis on which its jurisdiction might be founded, the Court warned that it ought not to indicate measures for the protection of any disputed rights other than those which might ultimately form the basis of a judgment in the exercise of that jurisdiction. Accordingly, the Court resolved to confine its examination of the measures requested by Georgia, and of the grounds asserted for the request for such measures, to those which appear to fall within the scope of CERD.Footnote ²⁸

Since the power of the Court to indicate provisional measures could be exercised only if there was ‘urgency’ in the sense that there was a real risk that action prejudicial to the rights of either party might be taken prior to the Court's final decision,Footnote ²⁹ the Court had to consider also whether such ‘urgency’ existed in the current proceedings.

On the issues of ‘irreparable prejudice’ and ‘urgency’ Georgia argued that the conduct of the Russian Federation in South Ossetia, Abkhazia and adjacent regions necessitated the urgent indication of provisional measures because ethnic Georgians in those areas were ‘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’ and ‘in addition, the prospects for the return of those ethnic Georgians who [had] already been forced to flee [were] rapidly deteriorating’.Footnote ³⁰ Georgia introduced evidence to support these claims from the reports of international and non-governmental organizations and witness statements, purporting to show the ‘on-going, widespread and systematic abuses of rights of ethnic Georgians under the Convention’ in South Ossetia, Abkhazia and other parts of Georgia occupied then by Russian forces.Footnote ³¹ Georgia claimed that ‘the widespread violations of the rights of ethnic Georgians under the Convention grew even worse after military engagements ceased, that they have continued unabated since then, and that they are continuing still’.Footnote ³² Georgia claimed that ‘the risk of irreparable prejudice to the rights at issue in this case is not only imminent [but] already happening’.Footnote ³³

In rebuttal, the Russian Federation claimed that the criteria of Article 41 were not met in the instant case and that Georgia had not established that any rights against Russia under Articles 2 and 5 of CERD were exposed to ‘serious risk’ of irreparable damage. In support, the Russian Federation pointed to: (1) the statements of Georgian Ministers, decisions and international agreements to which Georgia is a party, in which its role and the role of its peacekeeping forces are consented to and recognized as beneficial in the period characterised by Georgia as the ‘first and second phases of Russia's intervention in South Ossetia and Abkhazia’; (2) that the facts that can be relied upon with reasonable certainty militate against the existence of a serious risk to the rights pleaded by Georgia because, first, deaths and mass displacements of persons of all ethnicities had taken place, and secondly, because since the cessation of hostilities, civilians of all ethnicities were returning to some of the conflict zones; in addition the Russian Foreign Minister in discussions with the UN High Commissioner for Refugees on 15 August agreed on the principle of the non-discriminatory nature of the right of return for all civilians forced to flee; (3) that the issue of ‘urgency’ could be established only on events subsequent to 7 August as before that date Georgia had never raised violations of CERD with Russia; (4) events subsequent to that date did not support an ‘urgent’ situation: the ceasefire came into effect on 12 August, and the six principles for the peaceful settlement of the conflict had been adopted by the Presidents of Russia and France on the same day, and signed on 13–16 August 2008 by the President of Georgia and the leaders of South Ossetia and Abkhazia in the presence of the OSCE and the EU, thus terminating all armed actions; (5) ‘the case on urgency in relation to Abkhazia [was] built almost exclusively on inference, and that [this] [was] not a sound basis for a provisional measures award’; and (6) a number of other initiatives were being taken at the highest levels to deal precisely with the problem put before the Court: from 8 September EU monitors were deployed into the buffer zones around South Ossetia and Abkhazia; Russian peace keeping troops would withdraw 10 days later; UN and OSCE observers would carry out their mandates; the issues of security, stability and refugees were being discussed at the highest political levels; in short, there was no ongoing worsening crisis.Footnote ³⁴

Before addressing the issues of ‘irreparable prejudice’ and ‘urgency’ the Court explained that: (1) it was not called upon, for the purpose of its decision on the Request for the Indication of Provisional Measures, to establish the existence of breaches of CERD, but to determine whether the circumstances require the indication of provisional measures for the protection of rights under CERD; (2) it could not at this stage make definitive findings of fact nor finding of attribution; and (3) the right of each Party to submit arguments in respect of the merits remained unaffected by the Court's decision on the Request for the Indication of Provisional Measures.Footnote ³⁵

On these issues, the Court asserted that the rights in question in these proceedings, in particular those stipulated in Article 5 (b) and (d) (i) of CERD are of such a nature that prejudice to them could be irreparable in three senses: (1) violations of the right to security of person and of the right to protection by the State against violence or bodily harm (Article 5 (b)) could involve potential loss of life or bodily injury and could therefore cause irreparable prejudice; (2) violations of the right to freedom of movement and residence within a State's borders (Article 5 (d) (i)) could also cause irreparable prejudice in situations where the persons concerned are exposed to privation, hardship, anguish and even danger to life and health; and (3) individuals forced to leave their own place of residence and deprived of their right to return could, depending on the circumstances, be subject to a serious risk of irreparable prejudice.Footnote ³⁶ The Court then indicated the importance of assessing contemporary conditions in this context: the exceptional and complex situation on the ground in South Ossetia, Abkhazia and adjacent areas together with uncertainties as to where the lines of authority lay. The Court then extended several considerations that affected its decision on these issues: (1) the ethnic Georgian population in the areas affected by the recent conflict remained vulnerable; (2) the situation in South Ossetia, Abkhazia and the adjacent areas in Georgia was unstable and could change rapidly; (3) given the on going tension and in the absence of an overall settlement to the conflict in this region, ethnic Ossetian and Abkhazian populations remained vulnerable also; (4) the problem of refugees and internally displaced persons in the region was being addressed presently, but were not completely resolved; and (5) in the light of the above factors, there remained an imminent risk that the rights in issue in this case (Articles 5 (b) and (d) (i)) might suffer irreparable prejudice in respect of the various ethnic groups (Georgian, South Ossetian and Abkhazian).Footnote ³⁷ The Court was thus able to conclude that it was satisfied that the indication of measures was required for the protection of rights under CERD. However, the Court remarked that it had the power under its Statute, on a request for provisional measures, to indicate measures that were in whole or partly other than those requested, or measures that were addressed to the party which itself had made the request. The Court pointed out that Article 75 (2) of the Rules of Court refers expressly to this power of the Court, and that the Court had exercised this power already on several previous occasions.Footnote ³⁸

Having found that that the indication of provisional measures was required in the current proceedings, the Court considered the terms of the provisional measures requested by Georgia. The Court found that, in the circumstances of the case, the measures to be indicated were not identical to those requested by Georgia: in particular, the Court considered it appropriate in all the circumstances of the case to indicate measures addressed to both parties.Footnote ³⁹ Finally, before indicating the precise provisional measures, the Court reminded that the Court's orders on provisional measures under Article 41 of the [Statute] have binding effect.Footnote ⁴⁰ Accordingly, such orders create international legal obligations with which both parties are required to comply.Footnote ⁴¹

The Joint Dissenting Opinion denied that the first necessary condition of ‘irreparable harm’ existed even if prima facie jurisdiction were established. The Opinion remarks that: (1) nowhere does the Court demonstrate the existence of any risk of ‘irreparable harm’ to Georgia's rights under CERD; referring to the statement in the Order of the Court that ‘the rights in question in these proceedings … are of such nature that prejudice to them could be irreparable’ (Order of the Court, para 142), the Opinion declares that this ‘appears to suggest that certain rights may automatically fulfil the irreparable harm criterion, without analysing the real facts on the ground or the actual threat against the said rights’;Footnote ⁴² (2) with regard to the ‘expulsions’, they could not in and of themselves be considered to constitute ‘irreparable harm’, since the Court, if it arrived at the merits stage of the case, could always order that the expelled individuals be allowed to return to their homes and be granted appropriate compensation; and (3) it was even harder to claim that ‘irreparable harm’ to the rights in dispute when the appropriate organs of the UN had reported that thousands of persons had returned to their homes in Abkhazia and South Ossetia, and when the ceasefire agreement of 12 August 2008 provided that negotiations would begin soon in Geneva on 15 October 2008 between the parties in respect, inter alia, of the progressive return of displaced persons.Footnote ⁴³

This criticism of the dissenting judges is not altogether convincing as it is not thought that the Court was categorizing certain rights as satisfying automatically the ‘irreparable harm’ criterion, but actually specifying concretely that in cases of death or personal injury such a criterion would be satisfied. Nor was the Court stating that in cases of ‘expulsions’ that would satisfy the criterion automatically per se; it explained that in the case of ‘expulsions’, this could also result in danger to life or bodily injury.

The Joint Dissenting Opinion dismisses peremptorily the second necessary condition of ‘urgency’ found by the Court. The Opinion states quite categorically that there was no situation of ‘urgency’ because after the conclusion of the ceasefire agreement and the return of troops of both countries to their positions before 7 August 2008, EU observers had been deployed to monitor the ceasefire and observers from the UN Mission in Georgia and those from the Organization for Security and Co-operation in Europe (OSCE) would continue with their missions in Abkhazia and South Ossetia.

It is suggested that these considerations for denying the ‘urgency’ of the situation simply fail to take account of the reality of the situation on the ground, where all ethnic groups continued to be under threat of violence and expulsion from their homes at the hands of various armed militia for an indefinite period of time after the ceasefire. In any event, the OSCE observers were withdrawn by 23 December 2008 after Russia rejected plans to extend its mandate. Furthermore, it is manifest that the reality is that internally displaced ethnic Georgians are extremely unlikely to return to their homes in Abkhazia or South Ossetia, irrespective of any possibility of compensation. Indeed, of the $4.5 billion pledged by international donors to help re-build Georgian infrastructure at a conference at Brussels on 22 October 2008, the UN and World Bank have estimated that Georgia would need $3.5 billion over the next three years to help the tens of thousands forced to flee from their own homes and to repair infrastructure.Footnote ⁴⁴ In sum, the evidence of all official and media reports is that the situation was still extremely volatile and dangerous at the moment of the Court's delivery of its Provisional Measures Order. As such, it would seem that the criterion of ‘urgency’ was satisfied.

D. The Order of the Court

By a majority of eight votes to seven in each caseFootnote ⁴⁵, the Court indicated the following provisional measures:

1. (1) 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 organisations; (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;

2. (2) 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;

3. (3) 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;

4. (4) Each party shall inform the Court as to its compliance with the above provisional measures.