TEAM CODE: VSA-603

Professor V. S. Mani Memorial International Law Moot Court

Competition, 2017

IN THE INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE APPLICATION OF THE INTERNATIONAL

CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL
DISCRIMINATION

[2017 General List No…..]

MANDELLIA

(APPLICANT)

V.

PALLCIAN FEDERATION

(RESPONDENT)

MEMORIAL FOR THE APPLICANT

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………………………iv

TABLE OF AUTHORITIES…………………………………………………………………...…v

QUESTIONS PRESENTED……………………………………………………………………..ix

FACT HIGHLIGHTS……………………………………………………………………………..x

SUMMARY OF ARGUMENTS……………………………………………………………….xiii

ARGUMENTS ADVANCED………………………………………………………………….....1

1. The International Court of Justice has the jurisdiction under Article 22 of CERD to deal
with the case to the extent that the subject-matter of the dispute relates to the
interpretation or application” of the Convention.......................................................................1

i) There exists a dispute under Article 22……………………………………………1

ii) The Articles under CERD are applicable extraterritorially…………………….…4
iii) Procedural Requirements under Article 22 are not Pre-Conditions to be exhausted
before seisin of the Court……………………………………………………….…7

2. 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............................................................................................10

3. The power to indicate provisional measures under Article 41 of the Statute 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...........................................................................13

i) Prime facie subject-matter jurisdiction…………………………..………………14

ii) Court must be seised of a dispute………………………………………..………15
iii) A risk of Irreparable Prejudice to the Substance of Rights involved in the
Proceedings…………………………………………………………...………….16
iv) Provisional Measures are urgently required…………………………………..…18

4. The Court should be concerned to preserve the rights which may subsequently be
adjudged by the Court to belong either to the Applicant or to the
respondent...................................................................................................................................19

i) Plausibility test…………………………………………………………………...19
ii) Plausibility test is vague and ambiguous………………………………...………20

ii
 iii) Court can preserve rights which may subsequently be adjudged…………..……21
iv) Rights are at least plausible………………………………..……………………..22

PRAYER…………………………………………………………………………………………23

iii
 LIST OF ABBREVIATIONS

App Application

Art Article

CERD Convention on Elimination of Racial Discrimination

Co Company

Eds. Editors

E.g. Example

Et.al ET alia

Eur. Comm’n European Commission

Eur. Ct. H.R. European Court of Human Rights

H.R Human Rights

I.C.J International Court of Justice

Ibid. Ibidem

Id. Idem

No Numbers

p. Page

Para Paragraph

PCIJ Permanent Court of International Justice

Ser Series

TWC Trials of War Criminals

U.K. United Kingdom

UN United Nations

U.S. United States of America

v. Versus

iv
 TABLE OF AUTHORITIES

CASES:

Anglo- Iranian Oil Co. (U.K. v. Iran), Provisional Measures, 1951, I.C.J. Reports 89, 93
(July5)………………………………………………………………………………………14, 21

Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, 1993 I.C.J. Reports 3,
19(April8)…………………………………………………………11,22

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, 1993,
I.C.J. Reports 19, para. 34(April8)………………………………………………………………22

Application of the International Convention on the Elimination of All Forms of Racial

Discrimination (Georgia v. Russian Federation), Preliminary Objections Judgment, 2011 I.C.J.
Rep.388, 30 (1 April)……………………………………………………………………………..4

Application of the International Convention on the Elimination of all forms of Racial

Discrimination (Georgia v. Russia), Provisional Measures, 2008, I.C.J Reports 353, para 117,
114(October15)…………………………………………………………......……………8,11,12,1
3,15,17,18,22

Arbitral Award (Guinea-Bissau v Senegal) Provisional Measures; 1990 I.C.J Rep 64, 26(31
July)………………………………………………………………………………………………10

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda); Request for the Indication of Provisional Measures, 2006 I.CJ. Rep.39, 88(3
February)…………………………………………………………………………….……………7

Case concerning Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v
Nigeria) Preliminary Objections Judgment, 1998 I.C.J. Reports 303, 56………………………..8

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
Provisional Measures, 1996, I.C.J. Reports 22, 35( March
15)……………………………………………………..22

Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, 2011, I.C.J. Reports 35 (March 8) (Separate Opinion of Judge Sepulveda-
Amor)…………………………………………………………………………………………20,21

Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, 2011, I.C.J. Reports 6, 29 (March 8) (Separate Opinion of Judge
Koroma)…………………………………………………………………………………………21

v
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, 2011, I.C.J. Reports 6, 53(March 8)…………………………………..20

Certain Property (Liechtenstein v. Germany), Preliminary Objections, 2005 ICJ Rep. 6, 23(10
February)………………………………………………………………………………………….3

Cyprus v. Turkey, App. Nos. 6780/74, 6950/75, 4 Eur. Comm’n H.R. Dec. & Rep. 125
(1975)……………………………………………………………………………………….……..6

Fisheries Jurisdiction (U.K. v. Iceland), Provisional Measures, 1972, I.C.J. Reports 12,
17(August17)………………………………………………………………………………...14, 17

Interhandel (Switzerland v. U.S.), Provisional Measures, 1957, I.C.J. Reports 18

(October24)………………………………………………………………………………………14

Interpretation of the Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion
(first phase), 1950 ICJ Rep. 65, 74(30 March)………………………………………………….1,3

Kulbhushan Jadhav Case (India v. Pakistan); Provisional Measures, Judgment Order 18 May
2017……..………………………………………………………………………………………12

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
Provisional Measures, 1996, I.C.J. Reports 22, 35(March 15)………………………………….22

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,

Advisory Opinion, 2004 I.C.J. 136, 179 (July 9)…………..……………………………….……6

Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser A.) para 61 (1995) (preliminary objections)……….7

Mavrommatis Palestine Concessions (Greece v. Great Britain), Judgment of 30 August 1924,

1924 PCIJ (Ser. A) No. 2, at 11……………………………………………………….………….1

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Provisional
Measures), 1984, I.C.J Reports 169, 24 (May 10)……………………………………………….14

Pulp Mills on the River Uruguay(Argentina v. Uruguay),Provisional Measures Order,2007 I.C.J.

Rep. 3,10(13
July)……………………………………………………………………………………………11

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, 2006, I.C.J.
Reports 141(July13) (Separate Opinion of Judge Abraham)……………………………………19

Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal); Provisional

Measures;2009 ICJ Rep.139,151(6April)………………………………………………………..12

Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional

Measures, 2009, I.C.J. Reports 151, 57(May
28)……………………………………………………..20

vi
Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and
other Mexican Nationals (Mexico v. United States of America), 2008 ICJ Rep. 15(16 July)…..11

South West Africa (Ethiopia v. South Africa; Liberlia v. South Africa), Preliminary Objections,
1962 ICJ Rep. 319, 328(21 December)……………………………………………………….2,9

U.S. v. List, (1950) 11 TWC 1230……………………………………………………………….6

Agreements, Treaties and Conventions:

Fourth Geneva Convention, 1949, Art. 6………………………………………………………6

Hague Convention, 1907, Art. 42……………………………………………………………….6

The International Convention on the Elimination of all forms of Racial Discrimination, 1965,
Article 22………………………………………………………………………………………..3,9

The Statute of Court, Art. 41……...............................................................................................13

Books and Reference Materials:

Andreas Zimmermann, Christian Tomuschat, et.al. (eds.), The Statute of the International Court
of Justice 1035 (Oxford University Press, U.K., 2012)………………………13, 17, 19, 20

Andrew Byrnes, Mika Hayashi, et.al. (eds.), International Law in the New Age of Globalization
(Martinus Nijhoff Publishers, Netherlands, 2013)……………………………………………….10

B. A. Garner (ed.), Black’s Law Dictionary (1999)……………………………………………..1

Hugh Thirlway, The Law and Procedure of the International Court of Justice 946 (Oxford
University Press, U.K. 2013)…………………………………………………………………….16

Mads Andenas and Eirik Bjorge (eds.), A Farewell to Fragmentation 233 (Cambridge University
Press, U.K., 2015)……………………………………………………………………………14,18

Patrick Thornberry, The International Convention on the Elimination of all forms of Racial
Discrimination: A Commentary 503 (Oxford University Press, U.K., 2016)……………….…..15

Robert Kolb, The International Court of Justice 623 (Hart Publishing, U.K.,
2013)……………………………………………………………………………………14,16,17

Websites:

Application of the International Convention on the Elimination of All Forms of Racial

Discrimination (Georgia v. Russian Federation), Preliminary Objections Judgment, 2011 I.C.J.
Rep.388(1 April)(Written Statement of Georgia on Preliminary Objections, Vol.I), available at:

vii
http://www.icj-cij.org/files/case-related/140/16101.pdf (last visited on 13th August,
2017)……………………………………………………………………………………………5

viii
 QUESTIONS PRESENTED

I. Whether the International Court of Justice has the jurisdiction under Article 22 of
CERD to deal with the case to the extent that the subject-matter of the dispute relates to
the “interpretation or application” of the Convention?

II. Whether 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?

III. Whether the power to indicate provisional measures under Article 41 of the Statute 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?

IV. When considering such a request, should the Court be concerned to preserve the rights
which may subsequently be adjudged by the Court to belong either to the Applicant or
to the Respondent?

ix
 FACT HIGHLIGHTS

I. Both Mandellia and the Pallcian Federation are parties to CERD. Mandellia deposited
its instrument of accession on 2 June 1999 without reservation and the Pallcian
Federation deposited its instrument of ratification on 4 February 1969 with a
reservation to Article 22 of the Convention but this reservation was withdrawn by the
Pallcian Federation on 8 March 1989.
II. On 12th August 2001, Mandellia led an application for the institution of proceedings
against the Pallcian Federation for the alleged violations of the International
Convention on the Elimination of all forms of Racial Discrimination.
III. Mandellia relied on Article 22 of the Convention in order to found the jurisdiction of
the International Court of Justice.
IV. Mandellia contends that the Pallcian Federation has xonstantx, 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 by 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.
V. Mandellia submitted a Request for the indication of provisional measures on 14
August 2001 to preserve its rights under CERD to protect its citizens against the
violent and discriminatory acts of the Pallcian Federation, pending the Court’s
judgment in the proceedings.
VI. The President of the Court referred to Article 74, paragraph 4, of the Rules of Court
to address a communication to the two Parties on 15 August 2001 by 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”.
VII. The Court observes that, on 25 August 2001, Mandellia submitted an “Amended
Request for the Indication of Provisional Measures of Protection” citing the rapid
change of circumstances in Syddinasia and South Brazilia.
VIII. The Court summarized the arguments put forward by the Parties during the public
hearings held on 8, 9 and 10 September 2001.

x
IX. At the end of the hearings, Mandellia requested the Court to order the indication of
provisional measures as a matter of urgency, pending its determination of the 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. All the
provisional measures requested were related to the prevention of violent or coercive
acts of racial discrimination under Article 2 and prevention of violation of right of
return of ethnic Mandellians to their homes in South Brazilia, Syddinasia, and
adjacent regions under Article 5.
X. Mandellia also requested the Court to order the Pallcian Federation to refrain from
obstructing, and to permit and facilitate, the delivery of humanitarian assistance to all
individuals in the territory under its control, regardless of their ethnicity.
XI. The Pallcian Federation denied the existence of a dispute under Article 22 of CERD
instead they argued that the Dispute is related to Use of force, Humanitarian laws and
territorial integrity.
XII. Secondly, they said that even if the dispute is capable of falling under the Convention,
the alleged breaches do not fall under Articles 2 and 5 as they are not applicable
extraterritorially.
XIII. Thirdly, even if such breaches occurred, they cannot prima facie be attributable to
Pallcian as they does not exercise the extent of control required to overcome the set
threshold in the territories concerned.
XIV. Fourthly, even if the 1965 Convention was to be applicable, the procedural
requirements given under Article 22 have not been complied with and with these
arguments they denied the Court’s jurisdiction.
XV. They further argued that Mandellia has failed to provide evidences to attest to the
existence of an imminent risk of irreparable harm, and urgency which are the
essential elements of provisional measures. They argued that the events of August
2000 were initiated by Mandellia’s use of force and that the post-conflict settlement
has already been initiated. Therefore, even if the prima facie jurisdiction is found,
provisional measures cannot be granted.

xi
XVI. They even said that they do not exercise effective control in the areas concerned and
therefore the requested provisional measures will impose such obligations on them
that they will not be able to fulfill and it will prejudge the outcome of the case.
XVII. Mandellia argues that CERD does not include any limitation on its territorial
application and therefore acts and omissions attributable to Pallcian Federation within
the territory of Mandellia will be covered under their obligations related to CERD.
XVIII. The Court has observed that the Pallcian Federation and Mandellia disagrees with the
applicability of Articles 2 and 5 and therefore, there appears to exist a dispute under
CERD.
XIX. The Court also observed that the acts alleged by Mandellia against the Pallcian
Federation are capable of contravening rights under CERD, even if they are capable
of coming under other rules of International law, which is a necessary condition to
establish Court’s prima facie jurisdiction under Article 22.
XX. Mandellia argues that the pre conditions under Article 22 are not exhaustive and that
they have already been fulfilled, as the issue forming the subject matter of the
convention has already been raised in the negotiations and bilateral contacts held
between the two parties.
XXI. The Court observed that the negotiations need not be in the ‘formal framework of the
Convention’ under Article 22 but some effort to negotiate issues falling under CERD
should be made between the parties and this requirement has already been fulfilled in
the bilateral contacts between the parties to negotiate which did not result in the
resolution of disputes. The issue was also raised in several representations to the UN
Security Council before filing of the application. Thus, the Pallcian Federation was
aware of Mandellia’s position in that regard. The fact that CERD was not specifically
mentioned in the negotiations is not an impediment for the seisin of the Court.

xii
 SUMMARY OF ARGUMENTS

Argument 1:

The International Court of Justice does have jurisdiction under Article 22 of the International
Convention on the Elimination of all forms of Racial Discrimination to deal with the case to the
extent that the subject-matter of the dispute relates to the “interpretation or application” of the
Convention.

a. There is a dispute under Article 22 of CERD as for a dispute to exist under a Convention,
the requirements are that the allegations by one party should be opposed by another and
that the subject matter of the dispute should clearly be communicated to the other party,
specific mention of the Convention is not necessary as long as subject-matter of the
dispute is clear. In the instant case, the applicant and the respondent held an opposing
view with regard to interpretation and application of Articles 2 and 5 of CERD and they
both were aware of each other’s stance in this regard which is sufficient to establish a
dispute under article 22 of CERD.
b. the Court does have jurisdiction under Articles 2 and 5 in the instant case as both the
articles are framed in a language that does not suggest that they cannot be applied
extraterritorially, also, as per the jurisprudence established by the various Human Rights
Courts, it is clear that a human rights treaty can be applied extraterritorially if the state’s
action affects the persons and property beyond its territories. Also, the ‘Effective Control
test’ established by Courts in its jurisprudence, to determine the authority of a state over a
particular territory, substantiates claimant’s claim as the respondents does exercise
significant effective control over the disputed territory, as evidenced by their control of
the various forces working within the territory of the applicant.
c. Article 22 does not impose any pre-conditions to be exhausted before the seisin of the
Court. If the framers of the Article intended to insert pre-conditions to be exhausted, they
would have done so unambiguously by using phrases such as ‘cannot be settled’ as it has
done in several other treaties drafted around the same time when CERD was signed.
Also, any attempt at negotiations need not be in a formal framework of the convention.
Even a short discussion will suffice to communicate the existence of a dispute to the

xiii
 other party. Keeping all these factors in mind, the applicant would like to submit that the
ICJ does have jurisdiction under Article 22 of CERD in the present case.

Argument 2:

A link between protection of rights for which provisional measures are sought and the subject of
the proceedings before the Court on the merits must be established in order to indicate
provisional measures to protect the rights of the Applicant. Recent Case laws of the Court have
established ‘link test’ as an independent requirement for the indication of provisional measures.

In the present case, articles 2 and 5 of CERD are intended to protect individuals from racial
discrimination by obliging States parties to undertake certain measures specified therein. The
States parties to CERD have the right to demand compliance by a State party with specific
obligations incumbent upon it under Articles 2 and 5 of the Convention; thus, there is a
correlation between respect for individual rights, the obligations of States parties under CERD
and the right of States parties to seek compliance therein. Therefore, the rights which the
applicant seek to invoke in and seek to protect by its request for the indication of provisional
measures have a sufficient link with the merits of the case it brings for the purposes of the
current proceedings.

Argument 3:

The essential purpose of provisional measures is clearly stated in Art. 41, namely ‘to preserve the
respective rights of either party’ pending final decision. The preservation of rights means, as the
Court has started in almost identical words constantly in its jurisprudence, ‘that irreparable
prejudice should not be caused to rights which are the subject of the dispute in judicial
proceedings. Also the requirements for provisional measures are fulfilled in the present case.

a. Prima Facie subject-matter jurisdiction: The basis of prime facie jurisdiction in the
present case for the purposes of its Request for the indication of provisional measures
emanates from the rights of Applicant and ethnic Mandellian guaranteed under Articles 2
and 5 of CERD. The obligations under the CERD are evidently engaged in relation to
Pallcian’s treatment of ethnic Mandellians in South Brazilia, Syddinasia, and other areas
of Mandellia.

xiv
 b. Court must be seised of a dispute: Provisional measures are a purely incidental procedure,
engrafted onto a substantive case. The text of Article 41(2) seems to confirm this, in the
words ‘Pending the final decision’ and ‘parties’. These words make sense only in
Provisional measures are available only once the Court has been seised. There appears to
exist a dispute between the Parties as to the interpretation and application of CERD and
the acts are capable of contravening rights provided for by CERD, therefore, it is a
dispute between the Parties exist which is capable of falling within the provisions of
CERD, which is a necessary condition for the Court to have prima facie jurisdiction
under Article 22.
c. A risk of Irreparable Prejudice to the Substance of Rights involved in the Proceedings:
The essential purpose of provisional measures is to preserve the rights of either party.
This is a matter of justice, not of peace-keeping; neither the intensity of the dispute, nor
even the risk that it may escalate in the use of force, is a consideration which necessarily
enters into the equation, as so defined, unless of course such escalation threatens to cause
irreparable prejudice to the rights of either party. The rights alleged by Applicant in these
proceedings, are of such a nature that prejudice to them could be irreparable
d. Provisional Measures are urgently required: Given the temporary nature of Provisional
Measures, it is necessary that if it is to be granted interim relief be required urgently. The
requirement is self evidently linked to that irreparable prejudice, such that they may often
be considered as one if there is not imminent irreparable prejudice, then provisional
measures are clearly not urgent.

Argument 4:
To justify the indication of provisional measures, Applicants have needed only to show that their
existing rights were threatened. As in the present case, the fact that Applicant is entitled to such
rights is so self evident that the Court need not evaluate their legitimacy or plausibility. In many
orders on provisional measures, the Court’s analysis of jurisdictional questions or irreparable
prejudice also confirms the credibility of a party’s claims. Therefore, there is no need to go into
the plausibility test. Even if we apply this plausibility test in the present case, this requirement is
already met with as their rights are plausible under CERD due to acts of racial discrimination

xv
 ARGUMENTS ADVANCED

1. Whether the International Court of Justice has the jurisdiction under Article 22 of
CERD to deal with the case to the extent that the subject-matter of the dispute relates to
the interpretation or application” of the Convention?

The Applicant submits that the Honorable International Court of Justice has the Jurisdiction
under Article 22 of the International Convention on the Elimination of All Forms of Racial
Discrimination, 1965 to deal with the case to the extent that the subject-matter of the dispute
relates to the interpretation and application of the convention. This submission is threefold: a)
there exists a dispute under Article 22 of the Convention as both the parties disagree with respect
to the applicability of Article 2 and 5 of CERD. b) The Articles under CERD does provide the
Court jurisdiction as they are applicable extraterritorially as well. c) The procedural requirements
given under article 22 need not be exhausted before the Court can be seised in and even if Article
22 of CERD were considered to lay down pre-conditions to be fulfilled, those conditions have
been met.

i) There exists a dispute under Article 22

Meaning of Dispute:

Black’s Law Dictionary defines ‘dispute’ as ‘a conflict or controversy, esp. one that has given
rise to a particular lawsuit.’1 The Permanent Court of Justice in Mavrommatis Palestine
Concessions case2 defined dispute as ‘a disagreement on a point of law or fact, a conflict of legal
views or of interests between two persons.’ In another case, the ICJ defined dispute as ‘a
situation in which the two sides held clearly opposite views concerning the question of the
performance or non-performance of certain treaty obligations.’3

1
B. A. Garner (ed.), Black’s Law Dictionary (West Publishing,1999).
2
Mavrommatis Palestine Concessions (Greece v. Great Britain), 1924 PCIJ (Ser. A) No. 2, 11(30 August).
3
Interpretation of the Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion (first phase), 1950
ICJ Rep. 65, 74(30 March).

1
The existence of a dispute presupposes a certain degree of communication between the two
parties at dispute. The matter must be raised by the Claimant party and the Respondent must
oppose the claim, if only indirectly.

In the Interpretation of Peace Treaties case, the ICJ was confronted with the question as to
whether the diplomatic exchanges between Bulgaria, Hungary and Romania on the one hand,
and certain Allied and Associated Powers signatories to the Peace Treaties on the other,
amounted to a dispute. The Court gave an affirmative response on the basis of a finding that
the two sides had expressed clearly opposing views concerning their treaty obligations. The
Court said:

‘Whether there exists an international dispute is a matter for objective determination. The
mere denial of the existence of a dispute does not prove its non-existence…….There has thus
arisen a situation in which the two sides hold clearly opposite views concerning the question
of the performance or non-performance of certain treaty obligations. Confronted with such a
situation, the Court must conclude that international disputes have arisen.’4

In the South West Africa cases, the ICJ had to address the preliminary question as to the
existence of a dispute since its jurisdiction under the Mandate and under Articles 36 and 37 of
its Statute depended on a positive finding on this issue. The Court said,

‘In other words it is not sufficient for one party to a contentious case to assert that a dispute
exists with the other party. A mere assertion is not sufficient to prove the existence of a
dispute any more than a mere denial of the existence of the dispute proves its nonexistence.
Nor is it adequate to show that the interests of the two parties to such a case are in conflict. It
must be shown that the claim of one party is positively opposed by the other. Tested by this
criterion there can be no doubt about the existence of a dispute between the Parties before
the Court, since it is clearly constituted by their opposing attitudes relating to the
performance of the obligations of the Mandate by the Respondent as Mandatory.’5

4
Supra note 3.
5
South West Africa (Ethiopia v. South Africa; Liberlia v. South Africa), Preliminary Objections, 1962 ICJ Rep.
319, 328(21 December).

2
In the Certain Property case, there had been bilateral consultations between Germany and
Liechtenstein. Germany argued that ‘a discussion of divergent legal opinions should not be
considered as evidence of the existence of a dispute in the sense of the Court’s Statute
“before it reaches a certain threshold”’.6 The Court said:

‘The Court thus finds that in the present proceedings complaints of fact and law formulated
by Liechtenstein against Germany are denied by the latter. In conformity with well-
established jurisprudence (…), the Court concludes that ‘[b]y virtue of this denial, there is a
legal dispute’ between Liechtenstein and Germany.’7

Dispute under Article 22:

Article 22 of CERD says,

“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.”8

The meaning of ‘dispute’ under Article 22 was considered by the ICJ in the case of
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination, the Court while considering the question of existence of a dispute, observed:

“The Court’s determination must turn on an examination of the facts. The matter is one of
substance, not of form. As the Court has recognized(..), the existence of a dispute may be
inferred from the failure of a State to respond to a claim in circumstances where a response
is called for.

The dispute must in principle exist at the time the Application is submitted to the Court(…).
Further, in terms of the subject-matter of the dispute, to return to the terms of Article 22 of
CERD, the dispute must be “with respect to the interpretation or application of [the]
Convention”. While it is not necessary that a State must expressly refer to a specific treaty in
its exchanges with the other State to enable it later to invoke that instrument before the

6
Certain Property (Liechtenstein v. Germany), Preliminary Objections, 2005 ICJ Rep. 6, 23(10 February).
7
Id. at 25.
8
The International Convention on the Elimination of all forms of Racial Discrimination, 1965, Article 22.

3
Court(…), the exchanges must refer to the subject-matter of the treaty with sufficient clarity
to enable the State against which a claim is made to identify that there is, or may be, a
dispute with regard to that subject-matter.”9
Thus, it is clear from the above case laws that for a dispute to exist under a Convention, the
only requirements are: 1) the allegations by one party should be opposed by another and 2)
the subject matter of the dispute should clearly be communicated to the other party. In the
instant case, the applicant and the respondent held an opposing view with regard to
interpretation and application of Articles 2 and 5 of CERD and they both were aware of each
other’s stance, which is sufficient to establish a dispute under article 22 of CERD.

ii) The Articles under CERD are applicable extraterritorially

The Respondents asserts that the Court lacks jurisdiction ratione loci. In essence,
Respondents’ argument is that, contrary to the Court’s well-established jurisprudence on the
extraterritorial application of human rights law as reflected in universal instruments,
Respondents are free to engage in acts of racial discrimination that are prohibited by the
Convention so long as they occur outside of their territory. In such circumstances, respondent
claims, there can be no violation of the 1965 Convention. This unhappy claim is inconsistent
with the jurisprudence of this Court and practice under international human rights
instruments. General international law has long recognized the extraterritorial application of
human rights obligations of the kind reflected in the 1965 Convention where they arise in
human rights instruments of a universal character, as in the circumstances of this case.

Like the other treaty bodies established by international human rights instruments, the
practice of the CERD Committee is to apply the obligations of the 1965 Convention
extraterritorially to anyone within the power or authority of a State Party. The CERD
Committee, in its reports on Israel in respect of the Occupied Territories and the Golan
Heights, said:

“The Committee reaffirms its position of principle that, since Israel is a party to the
International Convention on the Elimination of All Forms of Racial Discrimination, the
Committee is competent to examine the manner in which Israel is fulfilling its obligations

9
Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections Judgment, 2011 I.C.J. Rep.388, 30 (1 April).

4
under the Convention with respect to everyone falling under the jurisdiction of Israel,
including all persons living in the territories occupied by Israel.”10

In 2007, the CERD Committee reaffirmed this stance:

“The Committee reiterates its concern at the position of the State party to the effect that the
Convention does not apply in the Occupied Palestinian Territories and the Golan Heights.
Such a position cannot be sustained under the letter and spirit of the Convention, or under
international law, as also affirmed by the International Court of Justice”11

In addition to taking an extraterritorial approach with respect to Israel’s conduct, the CERD
Committee has also exercised its competence in respect of Turkey’s conduct in Northern
Cyprus and the United States’ conduct in Panama and Guantanamo Bay.

Even the UN Human Rights Committee in López Burgos v. Uruguay and Lilian Celiberti de
Cusariego v. Uruguay has affirmed this position and has stated:

“ [I]t would be unconscionable to so interpret the responsibility under article 2 of the

Covenant as to permit a State party to perpetrate violations of the Covenant on the territory
of another State, which violations it could not perpetrate on its own territory.”12

The International Court of Justice has reaffirmed this Principle of Extraterritoriality of

Human Rights Treaties in its advisory opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestine Territory.

The Court, in this case, applied the International Covenant on Civil and Political Rights
extraterritorially, even though the language in Article 2, paragraph 1 states that a subject must
be “within its territory and subject to its jurisdiction.” The advisory opinion noted that the
provisions of the Covenant apply extraterritorially “for all conduct by the State party’s
authorities or agents in those territories that affect the enjoyment of rights enshrined in the
Covenant and fall within the ambit of State responsibility of Israel under the principles of
public international law.”

10
Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections Judgment, 2011 I.C.J. Rep.388(1 April)(Written
Statement of Georgia on Preliminary Objections, Vol.I), available at: http://www.icj-cij.org/files/case-
related/140/16101.pdf (last visited on 13th August, 2017).
11
Supra note 10.
12
Supra note 10.

5
The Court further held that, “considering the object and purpose of the International
Covenant on Civil and Political Rights, it would seem natural that, even when such is the
case, States parties to the Covenant should be bound to comply with its provisions.”

They even went onto discuss the intent of the framers in drafting the language of Article 2(1)
and stated: “the drafters of the Covenant did not intend to allow States to escape from their
obligations when they exercise jurisdiction outside their national territory.”13

Even the European Court of Human Rights has upheld the same position in a number of
cases. In Cyprus v. Turkey, the Court held:

“Taking into account the terms used and the purpose of the Convention as a whole, state
responsibility might be incurred by acts of the state that produce effects outside the national
territory. The reason for this is that such agents remain under the state’s jurisdiction when
abroad and they bring persons and property within this particular “jurisdiction” to the
extent that they exercise authority over them.”14

Effective Control:

The International Law determines the exercise of authority by a state over a territory by using
the principle of “Effective Control”. The requirements to determine effective control are:

 the territory is “actually placed under the authority of the hostile army[,]” and
“authority has been established and can be exercised”15;
 the state in power “exercises the functions of government in such
territory”16and
 the occupier’s authority is “to the exclusion of the established government”.17

Observing the principle of Extraterritoriality, the European Court of Human Rights in

Loizidou v. Turkey, noted that “the responsibility of a Contracting Party may also arise

13
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
2004 I.C.J. 136, 179 (July 9).
14
Cyprus v. Turkey, App. Nos. 6780/74, 6950/75, 4 Eur. Comm’n H.R. Dec. & Rep. 125 (1975).
15
Hague Convention, 1907, Art. 42.
16
Fourth Geneva Convention, 1949, Art. 6.
17
U.S. v. List, (1950) 11 TWC 1230.

6
when, as a consequence of military action . . . it exercises effective control of an area outside
its national territory.”18

The ICJ affirmed this position in Democratic Republic of Congo v. Uganda, stating:

“… to reach a conclusion as to whether a State … is an ‘occupying Power’ … the Court must

examine whether there is sufficient evidence to demonstrate that the said authority was in fact
established and exercised by the intervening State in the areas in question. … armed forces
[must] not only be stationed in particular locations but also substitute[] their own
authority…”19

Therefore, the Applicant would like to submit that the Court does have jurisdiction under
Articles 2 and 5 in the instant case as both the articles are framed in a language that does not
suggest that they cannot be applied extraterritorially, also, as per the jurisprudence
established by the various Human Rights Courts, it is clear that a human rights treaty can be
applied extraterritorially if the state’s action affects the persons and property beyond its
territories. Also, the ‘Effective Control test’ established by Courts in its jurisprudence, to
determine the authority of a state over a particular territory, substantiates claimant’s claim as
the respondents does exercise significant effective control over the disputed territory, as
evidenced by various facts.

iii) Procedural Requirements under Article 22 are not Pre-Conditions to be

exhausted before seisin of the Court.

The appellant would like to submit that Article 22 does not impose any pre-conditions on the
parties to a dispute and that the conditions mentioned under article 22 need not be exhausted
before the Court can be approached. The applicant would also like to submit that even if
article 22 was meant to impose pre-conditions, which it does not, they are alternative in
nature and not cumulative and the appellants have already satisfied these conditions by
holding negotiations and bilateral discussions, which consisted the subject matter of the
Convention, with the respondents. 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.

18
Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser A.) para 61 (1995) (preliminary objections).
19
Case Concering Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda); Request for the Indication of Provisional Measures, 2005 I.C.J rep.168(19 December).

7
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.’

The phrase “Any dispute . . . which is not settled by negotiation or by the procedures
expressly provided for” does not impose any affirmative obligations on the parties to attempt
to resolve the dispute through negotiation or through the procedures established by CERD.
The only requirement is that, as a matter of fact, the dispute could not be resolved.

The above argument is supported by number of Cases decided by the ICJ, for e.g., the Court
in Cameroon v. Nigeria, has observed that:

“Neither in the Charter nor otherwise in international law is any general rule to be found to
the effect that the exhaustion of diplomatic negotiations constitutes a precondition for a
matter to be referred to the Court.”20

Further, the ICJ in the case of Application of the International Convention on the Elimination
of All Forms of Racial Discrimination, said:

“the phrase ‘any dispute . . . which is not settled by negotiation or by the procedure expressly
provided for in this Convention’ does not, in its plain meaning, suggest that formal
negotiations in the framework 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”21

It also observed that ‘ the structure of Article 22 of CERD is 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 any proceedings before the Court.’22

Moreover, Article 16 of the Convention says:

‘The provisions of this Convention concerning the settlement of disputes or complaints shall
be applied without prejudice to other procedures for settling disputes or complaints in the
field of discrimination laid down in the constituent instruments of, or conventions adopted by,

20
Case concerning Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria)
Preliminary Objections Judgment, I.C.J. Reports 1998, 303, 56(11 June).
21
Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Provisional Measures Order, 2008 I.C.J. Rep.114(15 October).
22
Supra note 21.

8
the United Nations and its specialized agencies, and shall not prevent the States Parties from
having recourse to other procedures for settling a dispute in accordance with general or
special international agreements in force between them.’23

Therefore, it is clear that the Applicant need not adhere to any pre-conditions or procedural
requirements before seisin of the Court and that they are free to choose their preferred
method to resolve the dispute.

The Court in Georgia v. Russia did rule that some attempt at discussions must be made by the
Complainants but an attempt at formal negotiations in the framework of the Convention is not
necessary. The precedent set by PCIJ in Mavrommatis Palestine Concessions Case (Greece v.
U.K.) upheld the same thing, observing;

“Negotiations do not of necessity always presuppose a more or less lengthy series of notes
and dispatches; it may suffice that a discussion should have been commenced, and this
discussion may have been very short; this will be the case if a dead lock is reached, or if
finally a point is reached at which one of the Parties definitely declares himself unable, or
refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by
diplomatic negotiation….”24

Further in the South-West Africa Cases, the ICJ observed:

“The question to consider . . . is: What are the chances of success of further negotiations
between the parties in the present cases for reaching a settlement? . . . . .. It is, however,
further contended by the Respondent that the collective negotiations in the United Nations
are one thing and direct negotiations between it and the Applicant are another, and that no
such direct negotiations have ever been undertaken by them. But in this respect it is not so
much the form of the negotiation that matters as the attitude and views of the parties on the
substantive issues of the question involved. So long as both sides remain adamant, and this is
obvious even from their oral presentations before the Court, there is no reason to think that
the dispute can be settled by further negotiations between the parties.”25

It is humbly submitted by the Applicant that Article 22 does not impose any pre-conditions to
be exhausted before the seisin of the Court. If the framers of the Article intended to insert

23
Supra note 8, Article 16.
24
Supra note 5.
25
Supra note 5 at para 344-346.

9
pre-conditions to be exhausted, they would have done so unambiguously by using phrases
such as ‘cannot be settled’ as it has done in several other treaties drafted around the same
time when CERD was signed. Also, any attempt at negotiations need not be in a formal
manner. Even a short discussion will suffice to communicate the existence of a dispute to the
other party. Keeping all these factors in mind, the applicant would like to submit that the ICJ
does have jurisdiction under Article 22 of CERD in the present case.

2. Whether 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?

The function of Provisional Measures is to safeguard the rights which are in dispute, pending
the Court’s decision on merits. In this respect, the term ‘rights’ is unfortunate because the
‘rights’ remain in existence even if they are infringed. Thus, what is to be preserved is the
subject matter of the right, the factual use of the right which would be impossible if the
subject matter were irreparably destroyed.26 Because of this gap, the question of a link arises:
the rights to be protected by provisional measures should be linked directly to the right which
the main case is destined to protect or declare. In fact, the Court has rejected request for the
indication of provisional measures because of the lack of the link between the 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. In the Arbitral Award of 31st July,
1989(Guinea-Bissau v. Senegal) case, Guinea-Bissau sought to have the Court declare the
1989 Arbitral Award void, non-existent or invalid and requested provisional measures which
sought to preserve the status quo in maritime areas which were subject to the Arbitral Award.
The Court rejected this request by stating that:

“[T]he Applicant…asks the Court to pass upon the existence and validity of the award but
does not ask the Court to pass upon the respective rights of the Parties in the maritime areas
in question…[A]ccordingly, the alleged rights sought to be made the subject of provisional
measures are not the subject of the proceedings before the Court on the merits of the case.”27

This stance was upheld by the Court in the case of Application of the Convention on the
Prevention and Punishment of the Crime of Genocide. In this case, the Court stated:
26
Andrew Byrnes, Mika Hayashi, Christopher Michaelsen(ed.), International Law in the New Age of
Globalization (Martinus Nijhoff Publishers, Netherlands, 2013).
27
Arbitral Award( Guinea-Bissau v Senegal), Provisional Measures, 1990 I.C.J. Rep 64,26(31 July).

10
“[it] ought not to indicate measures for protection of any disputed rights other than those
which might ultimately form the basis of a judgment in the exercise of that jurisdiction.”28

The recent jurisprudence of the Court has shown a clear tendency to formulate a link between
the rights protected by provisional measures and the subject of the proceedings on merits. In
the case of Pulp Mills on the River Uruguay, the Court formulated the Link test as follows:

‘[T]he link 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 has to be examined.’29

Further developing the link test in the case of Request for Interpretation of the Judgment of
31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v.
United States of America), the Court said:

‘[A] link must therefore be established between the alleged rights the protection of which is
the subject matter of the provisional measures being sought, and the subject of the principle
request submitted to the Court.’30

In the subsequent case of Georgia v. Russia, the Court adopted a very similar view
concerning the Link test. In this case, Georgia alleged that Russia has violated its obligations
under the Convention on the Elimination of All Forms of Racial Discrimination and
requested indication of provisional measures to protect its citizens against the violent acts of
discrimination by Russia in order to preserve the rights of the Georgian Citizens under Article
2 and 5 of the Convention. The Court rejected the request but confirmed its prima facie
jurisdiction to deal with the case to the extent that the dispute is related to interpretation and
application of CERD. It formulated the link test as follows: ‘[A] link must therefore 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.’31

28
Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, 1993 I.C.J. Reports 3, 19(April8).
29
Pulp Mills on the River Uruguay(Argentina v. Uruguay),Provisional Measures Order,2007 I.C.J. Rep. 3,10(13
July).
30
Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and other
Mexican Nationals (Mexico v. United States of America), Provisional Measure Order, 2008 ICJ Rep. 311, 326-
327(16 July).
31
Supra note 21 at para 118.

11
It found the link in the following manner:

‘[T]here is a correlation between respect for individual rights, the obligations of State parties
and the right of State parties to seek compliance therewith…[I]n the view of the Court the
rights which Georgia invokes in, and seeks to protect by, its Request for the indication of
provisional measures have a sufficient connection with the merits of the case it brings for the
purposes of the current proceedings.’32

Furthermore, in the case of Questions relating to the Obligation to Prosecute or Extradite

Case, the Court has reaffirmed the link test between the provisional measures and the merits
by observing:

‘[A] link must therefore be established between the provisional measures requested and the
rights which are the subject of the proceedings before the Court as to the merits of the
case.’33

Even in the recent dispute between India and Pakistan, the Court has looked for a link
between the rights claimed and the provisional measures requested. It considers that the
measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1,
of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed
by India and the provisional measures being sought.34

Therefore, the Applicant would like to submit that the link between protection of rights for
which provisional measures are sought and the subject of the proceedings before the Court on
the merits must be established in order to indicate provisional measures to protect the rights
of the Applicant. Recent Case laws of the Court have established ‘link test’ as an independent
requirement for the indication of provisional measures.

In the present case, the Applicant submits 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. The States parties to CERD have the right to demand compliance
by a State party with specific obligations incumbent upon it under Articles 2 and 5 of the
Convention, thus, there is a correlation between respect for individual rights, the obligations

32
Supra note 21 at para 126.
33
Questions relating to the Obligation to Prosecute or Extradite(Belgium v Senegal),Provisional Measures,2009
I.C.J. Rep139, 151(28 May).
34
Kulbhushan Jadhav Case(India v. Pakistan); Provisional Measures, Judgment, Order 18 May 2017.

12
of States parties under CERD and the right of States parties to seek compliance therein.35
Therefore, the rights which the applicant seek to invoke in and seek to protect by its request
for the indication of provisional measures have a sufficient link with the merits of the case it
brings for the purposes of the current proceedings.

3. Whether the power to indicate provisional measures under Article 41 of the Statute
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?
It is submitted on behalf of the Applicant that on 14 August 2008 Mandellia, referring to
Article 41 of the Statute of the Court, 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.36

Object and Purpose of Article 41 of the Statue of the Court:

Article 41 reads as-
“1. The Court shall have the power to indicate, if it considers that circumstances so require,
any provisional measures which ought to be taken to preserve the respective rights of either
party. Pending the final decision, notice of the measures suggested shall forthwith be given to
the parties and to the Security Council.37”

It is submitted on behalf of the Applicant State that the essential purpose of provisional
measures is clearly stated in Art. 41, namely ‘to preserve the respective rights of either party’
pending final decision. The preservation of rights means, as the Court has started in almost
identical words constantly in its jurisprudence, ‘that irreparable prejudice should not be
caused to rights which are the subject of the dispute in judicial proceedings.38 Further, for the
Court to indicate provisional measures certain requirements are to be fulfilled and these
following requirements are met in the present case:

35
Supra note 32.
36
Page 1, Moot problem.
37
The Statute of Court, art. 41.
38
Andreas Zimmermann, Christian Tomuschat, et.al. (eds.), The Statute of the International Court of Justice
1035 (Oxford University Press, U.K., 2012).

13
 i) Prime facie subject-matter jurisdiction:
It is submitted on behalf of the Applicant State that Provisional Measures under Article 41
are an urgent matter. The preservation of the real values of the possible substantive rights of
parties calls for rapid action. If they have to wait for the Court to carry out a full examination
of a jurisdiction, which can be an extremely complex matter, this would mean a long wait
without any protection.39 If the Court’s jurisdiction had to be fully demonstrated, Provisional
measures would be almost useless.
Therefore, In Anglo- Iranian case Court laid down the broad lines of “prime facie
competence test”40. This test has a balance of the probability that the Court does have
jurisdiction.

It was held by dissenting opinion in Interhandel case that- “The Court may properly act
under the terms of Article 41….. emanating from the parties to the dispute, which prime facie
confers jurisdiction upon the Court and which incorporates no reservation obviously
excluding its jurisdiction.”41
In Fisheries Jurisdiction case, it was held by ICJ that “Whereas the above-cited provision in
an instrument emanating from both Parties to the dispute appears, prima facie, to afford a
possible basis on which the jurisdiction of the Court might be founded.” 42

This statement has formed basis of jurisprudence 14onstant, and has been deployed by
majorities in several cases:43

“Whereas on a request for provisional measures the court need not, before deciding whether
or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of case, or as
the case may be, that an objection taken to the jurisdiction is well founded, yet it ought not to
indicate such measures unless the provisions invoked by the applicant appear prima facie to
afford a basis on which the jurisdiction of the Court might be founded”.44

39
Robert Kolb, The International Court of Justice 623 (Hart Publishing, U.K., 2013).
40
Anglo- Iranian Oil Co. (U.K. v. Iran), Provisional Measures, 1951, I.C.J. Reports 89, 93 (July5).
41
Interhandel (Switzerland v. U.S.), Provisional Measures, 1957, I.C.J. Reports 18 (October24).
42
Fisheries Jurisdiction(U.K. v. Iceland), Provisional Measures, 1972, I.C.J. Reports 12, 17(August17).
43
Mads Andenas and Eirik Bjorge (eds.), A Farewell to Fragmentation 233 (Cambridge University Press, U.K.,
2015).
44
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Provisional Measures),
1984, I.C.J Reports 169, 24 (May 10).

14
Similarly, in the case concerning Application of the Convention on Racial Discrimination
(Georgia vs. Russia): jurisdiction was asserted on the basis of Article 22 of the CERD but
contested and the Court held that:

“Whereas the Court, in view of all the foregoing, considers that, prima facie, it has
jurisdiction under Article 22 of CERD to deal with the case to the extent that the subject-
matter of the dispute relates to the “interpretation or application” of the Convention; and
whereas the Court may accordingly address the present Request for the indication of
provisional measures;”45

…......whereas States parties to CERD have the right to demand compliance by a State party
with specific obligations incumbent upon it under Articles 2 and 5 of the Convention;
whereas there is a correlation between respect for individual rights, the obligations of States
parties under CERD and the right of States parties to seek compliance therewith;…..46

Therefore, it is further submitted that the basis of prime facie jurisdiction in the present case
for the purposes of its Request for the indication of provisional measures, emanates from the
rights of Applicant State and ethnic Mandellian guaranteed under Articles 2 and 5 of CERD.
The obligations under the CERD are evidently engaged in relation to Respondent’s treatment
of ethnic Mandellians in South Brazilia, Syddinasia, and other areas of Mandellia.

Further object and purpose of CERD47 is to eliminate racial discrimination in “all its forms
and manifestations” and therefore Article 22 of CERD confers upon the Court ratione
materiae jurisdiction over any dispute with respect to the interpretation or application of this
Convention. Further, Court’s jurisdiction ratione persona exists as- Applicant and the
Respondent are parties to CERD48.

ii. Court must be seised of a dispute:

Provisional measures are a purely incidental procedure, engrafted onto a substantive case.
The text of Article 41(2) seems to confirm this, in the words ‘Pending the final decision’ and
‘parties’. These words make sense only in Provisional measures are available only once the

45
Supra note 21 at para 117.
46
Supra note 21 at para 142.
47
Patrick Thornberry, The International Convention on the Elimination of all forms of Racial Discrimination: A
Commentary 503 (Oxford University Press, U.K., 2016).
48
Page 3, Moot Problem.

15
Court has been seised. 49
Therefore, it is submitted on behalf of the Applicant State that there appears to exist a dispute
between the Parties as to the interpretation and application of CERD and the acts 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; therefore, it is a
dispute between the Parties exist which is capable of falling within the provisions of CERD,
which is a necessary condition for the Court to have prima facie jurisdiction under Article 22.
Further, it is submitted by the Applicant State that CERD does not include any limitation on
its territorial application and that accordingly Respondent’s obligations under the Convention
extend to acts and omissions attributable to Respondent which have their locus within
Applicant’s territory and in particular in South Brazilia and Syddinasia. It is also submitted
on behalf of the Applicant State that the proceedings in the present case in no way prejudges
the question of the jurisdiction of the Court to deal with the merits of the case or any
questions relating to the admissibility of the Application, or relating to the merits themselves.

iii) A risk of Irreparable Prejudice to the Substance of Rights involved in the

Proceedings:
It is submitted on behalf of the Applicant State that in the present case there exist a matter of
urgency to indicate the provisional measures, pending its determination of this case on merits,
in order to prevent irreparable harm to the rights of ethnic Mandellians under Articles 2 and 5
of the Convention on Racial Discrimination.
The essential purpose of provisional measures is to preserve the rights of either party. This is
a matter of justice, not of peace-keeping; neither the intensity of the dispute, nor even the risk
that it may escalate in the use of force, is a consideration which necessarily enters into the
equation, as so defined, unless of course such escalation threatens to cause ;irreparable
prejudice to the rights of either party. 50

The Applicant State would like to point out that in the case of Georgia vs. Russia, Court
ordered interim measures of protection going beyond inter-state interests and rights in form
of protection of rights under CERD, considering that the harm done to the individual rights of
ethnic Ossetian and Abkhazian populations was tantamount to the ‘irreparable harm or

49
Supra note 39 at 622.
50
Hugh Thirlway, The Law and Procedure of the International Court of Justice 946 (Oxford University Press,
U.K. 2013).

16
prejudiced’ that a request of provisional measures had to address”.51

Irreparable prejudice
Irreparable prejudice relates to the substance of the right. Every right is engrafted onto a
subject in the real world. If that subject is destroyed, or gravely altered, the right cannot be
properly exercised.52
In the Sino- Belgian Treaty case, it was started that a prejudice is irreparable if it “could not
be made good simply by the payment of an indemnity or by compensation or restitution in
some other material form”. In the South-Eastern Greenland case, the criterion concerning
irreparability was considerably broadened in that the PCIJ stated that provisional measures
are required when “the damage threatening [the rights in dispute] would be irreparable in
fact or in law”.53
Since the Icelandic Fisheries cases, the Court has reiterated in each case that its power under
Art.41 “presupposes that irreparable prejudice should not be caused to rights which are the
subject of dispute in judicial proceedings”54

In its jurisprudence, the ICJ has developed a key condition for the indication of Provisional
measures, namely that the prejudice that a party’s rights might suffer in the absence of
Provisional measures must on any reasonable view be such as to lead to irreparable prejudice.
The Court gave a particularly memorable indication as to this criterion in the Anglo- Iranian
Oil and Interhandel cases and has been consistently insisted on it from the Fisheries
jurisdiction cases, cases on trials of Pakistani prisoners of war, Nuclear Tests, Aegan Sea
continental Shelf, United States diplomatic and Consular staff at Tehran, Military and
paramilitary activities in and against Nicaragua, Boundary dispute( Burkino Faso vs. Mali),
Arbitral Award of 31 July 1989(Guinea Bissau vs. Senegal), Passage through the great belt,
Lockerbie, Application of the Convention for the prevention and punishment of the crime of
genocide( Bosnia- Herzegovina vs. Yugoslavia), Land and maritime boundary between
Cameroon and Nigeria, Vienna Convention on Consular relations(Paraguay vs. USA),
LaGrand and Armed Activities in the territory of Congo.55

51
Supra note 21 at para 142-145.
52
Supra note 39 at 621.
53
Supra note 38 at 1045.
54
Supra note 42 at 7.
55
Supra note 39 at 628.

17
It is submitted on behalf of the Applicant State that the rights alleged by Applicant in these
proceedings, are of such a nature that prejudice to them could be irreparable. Ethnic
Mandellians are subjected to violent or coercive acts of racial discrimination, including but
not limited to the threat or infliction of death or bodily harm, 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 Brazilia, Syddinasia and/or adjacent regions within
Mandellia. Further, Ethnic Mandellians have been subjected to systematic discriminatory
acts, including physical violence and the plunder and destruction of their homes; and mass-
expulsion of the ethnic Mandellian population from South Brazilia, Syddinasia and/or
adjacent regions. Further, the evidence submitted is more than sufficient to establish the facts
of ongoing irreparable prejudice for the purposes of indication of provisional measures and
that the risk of irreparable harm to the ethnic Mandellians is real and grave.

iv. Provisional Measures are urgently required:

Given the temporary nature of Provisional Measures, it is necessary that if it is to be granted
interim relief be required urgently. The requirement is self evidently linked to that irreparable
prejudice, such that they may often be considered as one if there is not imminent irreparable
prejudice, then provisional measures are clearly not urgent.56
“The power of the Court to indicate provisional measures will be exercised only if there is
urgency in the sense that there is a real risk that action prejudicial to the rights of either
party might be taken before the Court has given its final decision (see, for example, Passage
through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991,
I.C.J. Reports 1991, p. 17, para. 23; Certain Criminal Proceedings in France (Republic of
the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p.
107, para. 22; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional
Measures, Order of 23 January 2007, I.C.J. Reports 2007 (I)”57

It is contented on behalf of the Applicant State that in view of the conduct of the Respondent
State in South Brazilia, Syddinasia, and adjacent regions, provisional measures are urgently
needed because the ethnic Mandellians in these areas are at imminent risk of violent
expulsion, death or personal injury, hostage-taking and unlawful detention, and damage to or

56
Supra note 43 at 249.
57
Supra note 21 at para 129.

18
loss of their homes and other property.

4. Whether considering such a request, should the Court be concerned to preserve the
rights which may subsequently be adjudged by the Court to belong either to the
Applicant or to the respondent?

It is submitted on behalf of the Applicant State that when considering a request for indication
of provisional measures, the Court should be concerned to preserve the rights which may
subsequently be adjudged by the Court to belong either to the Applicant or the respondent.

It is submitted on behalf of the Applicant State that to justify the indication of provisional
measures, Applicants have needed only to show that their existing rights were threatened. As
in the present case, the fact that Applicant is entitled to such rights is so self evident that the
Court need not evaluate their legitimacy or plausibility. In many orders on provisional
measures, the Court’s analysis of jurisdictional questions or irreparable prejudice also
confirms the credibility of a party’s claims. Therefore, there is no need to go into the
plausibility test.

i) Plausibility test:

The term ‘plausible case’ was first introduced in the separate opinion of Judge Abraham in
the Pulp Mills case, who stated that after the confirmation that provisional measures are
binding any obligation imposed on a party must rest on solid legal grounds, especially when
the party in question is a sovereign State.58 He went on to say that:

“To sum up, I would say that the Court must satisfy itself of three things before granting a
measure ordering the respondent to act or to refrain from acting in a particular way, so as to
safeguard a right claimed by the applicant. Firstly, that there is a plausible case for the
existence of the right. Secondly, that it may reasonably be argued that the respondent’s
conduct is causing injury, or is liable to cause imminent injury, to the right. Thirdly and
finally, that the circumstances of the case are such that urgency justifies a protective measure
to safeguard the right from irreparable harm.”59

58
Supra note 38 at 37.
59
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, 2006, I.C.J. Reports 141(13
July) (Separate Opinion of Judge Abraham).

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 ii) Plausibility test is vague and ambiguous:

It is submitted on behalf of the Applicant State that in the exercise of its powers under Article
41 of the Statute, the Court should proceed on the assumption that the claimed rights do in
fact exist, and confine its inquiry to ascertaining whether those rights are liable to suffer
irreparable injury pending the final judgment on the merits, in the absence of measures for
their protection.60 Only in the case concerning Questions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal) has the Court, for the first time, ruled that that –
“Whereas the power of the Court to indicate provisional measures should be exercised only if
the Court is satisfied that the rights asserted by a party are at least plausible;”61

In the Activities in the Border Area case the Court adopted the criteria that the plausible
character of the alleged rights must be demonstrated for a request for provisional measures to
succeed:
“Whereas the power of the Court to indicate provisional measures under Article 41 of the
Statute has as its object the preservation of the respective rights of the parties pending its
decision; whereas it follows that the Court must be concerned to preserve by such measures
the rights which may subsequently be adjudged by the Court to belong to either party;
whereas, therefore, the Court may exercise this power only if it is satisfied that the rights
asserted by a party are at least plausible”.62

Therefore, Court introduced as a new parameter a ‘plausibility test’, meaning that the
indication of provisional measure presupposes that the Court is satisfied ‘that the rights
asserted by a party are at least plausible’.63

Judge Koroma in his separate opinion expressed two concerns with regard to the plausibility
standard- “In my view, the introduction of the criterion of plausibility creates ambiguity and
uncertainty; moreover, it remains unclear whether this standard refers to legal rights or facts
or both”. This criterion cannot be said to have become part of the settled jurisprudence of the
Court on provisional measures. Indeed it should not, because the word “plausibility” is

60
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional
Measures, 2011, I.C.J. Reports 35 (March 8) ( Separate Opinion of Judge Sepulveda- Amor).
61
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures,
2009, I.C.J. Reports 151, 57( May 28).
62
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional
Measures, 2011, I.C.J. Reports 6, 53(March 8).
63
Supra note 58.

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ambiguous in English and can refer to an assertion that has the outward appearance of truth,
but is in fact specious or false.

He went on to say that- ….The criterion seems to have appeared out of nowhere. The Court
in that case cited no precedent supporting the existence of a “plausibility” standard, nor did
it explain why it was establishing such a standard. The Court simply introduced the
plausibility standard into the Order, presenting it as if it were a criterion so well established
that it needed no introduction, explanation or justification. This is inconsistent with the
settled jurisprudence of the Court, according to which the applicant has to demonstrate that
an existing right is threatened and needs to be protected.64

It is further submitted that Judge Amor-

“I fear that the imprecision surrounding the “plausibility requirement” and the unwarranted
emphasis placed upon that in this Order might ultimately encourage States seeking interim
protection to over address the substance of the dispute at an early stage and, as a result,
overburden proceedings under Article 41 of the Statute with matters that should actually be
dealt with by the Court when adjudicating on the merits.”65

iii) Court can preserve rights which may subsequently be adjudged:

It is further submitted that Court has emphasized upon this requirement in many cases.-

“Whereas the object of interim measures of protection provided for in the Statute is to
preserve the respective rights of the Parties pending the decision of the Court, and whereas
from the general terms of Article 41 of the Statute and from the power recognized by Article
61, paragraph 6, of the Rules of Court, to indicate interim measures of protection, it follows
that the Court must be concerned to preserve by such measures the rights which may be
subsequently adjudged by the Court to belong either to the applicant or to the Respondent;”66

Further, in Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria); Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) ; Application of
the International Convention on the Elimination of All Forms of Racial Discrimination
64
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional
Measures, 2011 I.C.J. Reports 6, 29 (March 8) ( Separate Opinion of Judge Koroma).
65
Supra note 60.
66
Supra note 40 at para 93.

21
(Georgia v. Russian Federation); Application of the Convention on the Prevention and
Punishment of the Crime of Genocide case, the Court consistently held that-

“Whereas 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; and whereas it
follows that the Court must be concerned to preserve by such measures the rights which may
subsequently be adjudged by the Court to belong either to the Applicant or to the
Respondent…”67

iv) Rights are at least plausible:

It is submitted on behalf of the Applicant, that even if apply this plausibility test in the
present case, this requirement is already met with. It is further contended that Articles 2 and 5
of CERD are intended to protect individuals from racial discrimination. Consequently, in the
context of a request for the indication of provisional measures, a State party to CERD may
avail itself of the rights under Articles 2 and 5 only if it is plausible that the acts complained
of constitute acts of racial discrimination under the Convention. Therefore, in the present
case, on the basis of the all the credible evidences, the acts complained of by Applicant fulfill
this condition of plausibility.

67
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures,
1996, I.C.J. Reports 22, 35( March 15); Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures,
1993 I.C.J. Reports 19, 34(April8); Supra note31; Supra note 28.

22
 PRAYER

Wherefore for the foregoing reasons, Applicant respectfully requests this Hon‘ble Court to
adjudge and declare:

1. The International Court of Justice does have jurisdiction under Article 22 CERD as
far as interpretation and application of CERD is concerned.
2. The link between the 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 is present in the present case.
3. The Court can preserve rights of either party if there is irreparable prejudice to the
rights which are subject of dispute in the proceedings.
4. It is Court’s concern to preserve the rights which can subsequently be adjudged.

Respectfully submitted,
X______________________
Agent(s) on behalf of the Applicant

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