Last week, the International Court of Justice held hearings to consider the United Arab Emirates request for provisional measures in the Case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. UAE). The UAE’s requests are unusual in at least two ways. First these requests constitute the second request for provisional measures in the case, with the first requests considered by the Court last year. Second, and more unusually, this is a rare instance of the respondent state (and one which challenges the jurisdiction of the Court to hear the case) requesting provisional measures.
The UAE has made requests under four grounds, but I would like to focus on the first, that: ‘(i) Qatar immediately withdraw its Communication submitted to the CERD Committee [the Committee on the Elimination of Racial Discrimination] pursuant to Article 11 of the CERD on 8 March 2018 against the UAE’. The request raises the question of whether international law has developed a principle of lis pendens such that parallel proceedings before different international bodies should be disallowed. It also engages the issue in previous caselaw of whether the preconditions of Article 22 are alternative or cumulative.
Two mechanisms for inter-state disputes under the CERD
The International Convention on the Elimination of All Forms of Racial Discrimination (the CERD Convention) contains two mechanisms for inter-state “complaints”. First, Articles 11-13 provide for inter-state communications whereby one state party, considering that another state party is not giving effect to the provisions of the Convention, may bring the matter to the attention of the CERD Committee. Second, Article 22 provides that any dispute between two or more states parties with respect to the interpretation or application of the Convention, which is not settled by negotiation or by the procedures expressly provided for in the Convention, can be referred to the ICJ for decision.
As I wrote on this blog last year, Articles 11-13 of the CERD Convention apply to all states parties upon ratification, representing a compulsory inter-state communications mechanism. This compulsory character is unique among the UN international human rights treaties. Based on the information known then, I also wrote that the first such communication was Palestine v Israel (2018). On 20 August 2018, CERD issued an “information note on inter-state communications” – its first statement on the Articles 11-13 procedure – affirming two other such communications, and that the Committee received first Qatar v Saudi Arabia and Qatar v United Arab Emirates (8 March 2018), followed by Palestine v Israel (23 April 2018). Thus Qatar v Saudi Arabia (ICERD-ISC-2018/1) represents the first inter-state communication under the CERD Convention, and by extension the first under a universal (i.e UN) human rights treaty. As the delegate from Saudi Arabia (Mr Baroody) foretold at the drafting stage in November 1965, ‘there were certain dangers involved in giving each signatory State the freedom to lodge a complaint against another signatory State.’
CERD now has its own inter-state communications site showing all three communications. If the stated criterion of Article 11 including the exhaustion of domestic remedies is satisfied, the next stage, governed by Articles 12 and 13, includes the appointment of an ad hoc 5-person Conciliation Commission, tasked with issuing findings and recommendations. All three communications are still at the Article 11 stage, although Qatar v United Arab Emirates has advanced from an initial submission under Article 11(1) to a “resubmission” under Article 11(2). Qatar is now seeking the appointment of an ad hoc Conciliation Commission under Article 12.
Qatar v United Arab Emirates has been submitted under both the Articles 11-13 and the Article 22 procedures. Importantly the other two respondent states in the Article 11-13 communications, Saudi Arabia and Israel, have entered a reservation that they do not consider themselves bound by the provisions of Article 22. Hence Qatar v United Arab Emirates is the only communication or dispute to be considered in both fora.
UAE and the sequential framework
UAE argued before the ICJ that Qatar has initiated abusive parallel legal proceedings under the CERD Convention. It counts these as three – the communication under Article 11, the recent request to establish a Conciliation Commission under Article 12, and the current ICJ proceedings. The UAE believes this represents ‘the same claim against the UAE, in parallel proceedings in the CERD Committee, based on the same treaty and seeking the same remedy.’ It argues overall for the application of the domestic lis pendens rule, according to which domestic courts cannot accept jurisdiction over a case already pending before another court in the same system. The UAE submission accepted this rule may not yet have crystallised in international law but invited the Court to fashion a type of lis pendens order as a case-specific and contextually appropriate remedy.
The UAE argued further that the CERD Convention drafters designed a sequential framework for dispute settlement. This means that first, a complaint would be filed under Article 11(1). Second, upon unsuccessful negotiations or other procedures, the matter would be referred again to the CERD Committee at the request of either party in accordance with Article 11(2). Third, after inquiring whether domestic remedies have been exhausted, the CERD Committee would appoint an ad hoc Conciliation Commission under Article 12. And fourth, under Article 13, the Conciliation Commission would then be charged with determining all relevant issues of fact and making recommendations for the resolution of the dispute. Only then would the issue potentially reach the ‘ultimate dispute settlement procedure’ under Article 22, the ICJ.
The UAE roots its arguments in the wider problems ‘infecting’ parallel procedures. In particular, it highlights the fact that parallel proceedings in two fora could lead to two different results, ‘that could shatter the expectations of certainty in the assessment of international law’. It also indicates the possibility that the Articles 11-13 recommendations will emerge before the Court will have a chance to hear the Parties and issue its decision. The UAE asks – ‘[w]ill the Court be bound by interpretations of the Convention made by the CERD institutions? If not, the Court then becomes an alternative option for Qatar in case it does not find the CERD Committee’s interpretations and recommendations to its liking.’
According to Qatar neither the CERD Committee nor the Conciliation Commission are judicial bodies to which the principle of lis pendens might apply. The States concerned are free to accept or reject the Commission’s recommendations as they see fit. Moreover, even if the lis pendens doctrine were in principle applicable, the situation does not meet the criteria for the application of the doctrine, that is, that an identical dispute be put before two courts. In its view, the CERD Committee and ICJ proceedings are not the same, since the proceedings and the relief sought are not identical. The CERD Committee was not asked to adjudicate upon anything, but only to transmit a request that the UAE end the coercive measures, with Qatar expressly reserving its right to all other dispute resolution avenues open to it. This, in its view, is in contrast to the ICJ proceedings where Qatar asks the Court to adjudge and declare a series of breaches of international law, and to order the UAE to take a series of steps.
Qatar argued that the Convention does not stipulate a sequential or incremental procedure moving from the Committee to a Commission to the Court. Each procedure is separate, with the UAE’s procedural rights protected within each. It argues that there is nothing remotely problematic about pursuing conciliation under the auspices of the CERD Committee at the same time it pursues this case before the Court. It stated that: ‘This too is a prospect about which we heard a lot yesterday, along with a dramatic parade of horribles that would supposedly ensue.’ Qatar emphasises that the possibility of contradictory outcomes is entirely speculative, and it may very well be that the proceedings lead to entirely consistent outcomes – a scenario at least as plausible. But even if contradictory outcomes did arise, it is difficult to see how this could threaten the UAE’s rights to the proper administration of justice. In its view, the UAE’s argument betrays a fundamental misunderstanding of the two proceedings. The CERD proceedings can lead only to a negotiated solution or non-binding recommendations of the Conciliation Commission. By contrast, the Court’s judgments are binding as between the parties.
Alternative or cumulative
There are two preceding cases involving interpretation of the CERD Convention before the ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) and Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation). These did not involve any action under the Articles 11-13 procedure. However both cases raised what Patrick Thornberry refers to as the ‘textual puzzle’ of Article 22, whether the phrase ‘which is not first settled by negotiation or by the procedures expressly provided for in the treaty’ means that the Article 11-13 procedure must first be engaged before seising the Court.
In the preliminary objections ruling in Georgia v Russian Federation (2011), the Court concluded that the terms of Article 22 ‘establish preconditions to be fulfilled before the seisin of the Court’ (para 141) – negotiation and the Article 11-13 procedure – but was undecided whether they were “alternative”, in that recourse to one or the other is sufficient, or “cumulative”, in that recourse to both was required. Georgia failed to engage in either and thus fell below the standard of Article 22 (paras 149 and 159).
In the provisional measures order in Ukraine v Russian Federation (2017), the parties disagreed as to whether the preconditions are alternative or cumulative. The Court found that Ukraine satisfied the negotiation precondition, but declined at that point to make a pronouncement on whether it must also engage the Articles 11-13 procedure (paras 59-61).
In the first provisional measures order in Qatar v UAE (2018), Qatar stated that it had deposited a communication with the CERD Committee under Article 11. It emphasised that ‘initiation or completion of that procedure is not a precondition to the Court’s exercise of jurisdiction’ (para 31), relying instead on satisfying the negotiation precondition. Again the parties disagreed on whether the preconditions are alternative or cumulative, with the Court of the view that it need not make a pronouncement at that stage of the proceedings. It added: ‘Nor does it consider it necessary, for the present purposes, to decide whether any electa una via principle or lis pendens exception are applicable in the present situation’ (para 39). The UAE’s current provisional measures request asks the Court to make such a decision.
The relationship between the two mechanisms for inter-state disputes: Articles 11-13 and Article 22
Whether determined at this stage or, more likely, later in the proceedings, there are currently three possible approaches to thinking about the relationship between proceedings before the CERD Committee and the ICJ.
First, the Court could decide that the “cumulative” approach is the appropriate reading of Article 22. Qatar would fail to satisfy a cumulative approach given that the current Articles 11-13 proceedings are not complete, presuming initiation alone would fall short of satisfying the precondition. The logic of the cumulative approach is surely that the Articles 11-13 proceedings would be complete before seising the Court, making parallel proceedings impossible.
Second, the Court takes the “alternative” approach. It is then open to a state to engage in negotiation or the Articles 11-13 procedure to satisfy the Article 22 precondition. This could mean that while a disputant is not required to engage the Articles 11-13 procedure for the purposes of the preconditions of Article 22, if a state does engage the Articles 11-13 procedure, it cannot seise the Court until that procedure is complete; or having satisfied the negotiation precondition it cannot engage in a parallel Articles 11-13 procedure on the basis of a rule such as lis pendens.
Third, the “alternative” approach could be read as seeing negotiation or a completed Articles 11-13 procedure as a precondition; but allowing for negotiation as a precondition with the option remaining of a separate Articles 11-13 procedure at any point in the Article 22 proceedings. This approach views the procedures as separate except where a state specifically engages the Articles 11-13 procedure to satisfy the second Article 22 precondition. Article 22 preconditions can also be satisfied by negotiation. From that point, a procedure under Articles 11-13 remains entirely within the realm of the CERD Committee and unrelated to the Article 22 dispute.
It remains to be seen how the Court interprets Article 22 to determine its relationship with the Articles 11-13 procedure. But the third alternative approach appears to be the most logical and best reflects the differing roles of the CERD Committee and the Court.