Appointment of the Ad Hoc Conciliation Commissions under ICERD

The inter-State communications procedure under Articles 11-13 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) lay dormant for over 50 years before its activation in March-April 2018 in three inter-State communications, Qatar v Kingdom of Saudi Arabia (2018), Qatar v United Arab Emirates (2018) and Palestine v Israel (2018). These were the first inter-State communications ever submitted to a UN treaty body. As readers of this blog will recall, the Committee on the Elimination of Racial Discrimination (CERD) ruled positively on the questions of jurisdiction and admissibility in all three cases to date (see Keane, Eiken and Eiken). These communications have now all progressed to the establishment of ad hoc Conciliation Commissions which are tasked with examining the issues of substance raised in the communications. While the mode of composition of the ad hoc Conciliation Commission appears to be a rather technical question, its examination allows for interesting observations on the nature of the inter-State mechanism.

ICERD’s inter-State procedure unfolds before two bodies. Under Article 11, the Committee decides on preliminary questions of jurisdiction and admissibility. If CERD rejects these preliminary objections, the Chairperson of the Committee appoints an ad hoc Conciliation Commission comprising five persons tasked with examining the issues of substance raised in the communication. The ad hoc Conciliation Commissions in Qatar v Kingdom of Saudi Arabia and Qatar v United Arab Emirates (currently suspended, see here and here) were appointed with the unanimous consent of the parties to the dispute under Article 12(1)(a) ICERD. However, in Palestine v Israel, the parties to the dispute failed to reach an agreement, which meant the members of the Commission had to be elected by secret ballot by a two-thirds majority vote of the Committee from among its own members under Article 12(1)(b) ICERD. On 3 December 2021, CERD announced that its Chairperson had appointed the ad hoc Conciliation Commission in the case of Palestine v Israel (see here from 10”). We have now seen the two modes of composition of the Commissions envisaged by the treaty. They are not alternative modes, rather the second operates as an exception upon the total or partial failure of the first.

Two modes of composition: Articles 12(1)(a) and 12(1)(b)

In contrast to the inter-State communications procedure under the ICCPR or CAT, in which the involvement of an ad hoc Conciliation Commission is optional (Art. 42(1)(a) ICCPR; Art. 21(1)(e) CAT), the establishment of a Conciliation Commission is mandatory under ICERD. In line with the classical mode of conciliation, Article 12(1)(a) provides that Commission members shall normally be appointed with the unanimous consent of the State parties. After CERD has obtained and collated all the information it thinks necessary as regards a dispute under Article 11 (2) (i.e. when it has declared the communication admissible), the Chairperson of the Committee shall notify the States parties and undertake consultations with them in order to reach agreement on the composition of the Commission (Rule 72 RoP CERD). Commission members agreed by unanimous consent under Article 12(1)(a) can be any person, subject to two qualifications provided in Article 12(2) – that they shall not be nationals of the States parties to the dispute, or of a State not party to the Convention. The parties have three months to reach an agreement on the composition of the Commission.

If within three months the parties fail to reach the necessary ‘unanimous consent’ on all or part of the composition of the Commission, Article 12(1)(b) provides for CERD to elect the remaining members ‘from among its own members’. The election takes place by secret ballot by a two-thirds majority vote. The logic of Article 12(1)(b) is that even where States parties to the dispute fail to agree on Commission members, they will have ‘approved’ the prior appointment of members of the Committee under Article 8. Thereby, the procedure is prevented from being paralysed where the parties cannot reach the necessary agreement on all or part of the composition of the Commission.

The Commissions in Qatar v KSA and Qatar v UAE

After CERD found it had jurisdiction and declared the communications brought by Qatar against Saudi Arabia and the United Arab Emirates admissible, the Committee reported to the General Assembly: ‘in compliance with article 12(1)(a) of the Convention, following consultations with the States parties concerned, the Chair appointed the members of the two ad hoc conciliation commissions tasked with finding amicable solutions to the matters.’ It then provided the composition of the Commission in each case. In Qatar v KSA, the Commission was composed of: Marc Bossuyt (Belgium), Chinsung Chung (Republic of Korea), Makane Moise Mbengue (Senegal), Monica Pinto (Argentina) and Verene Shepherd (Jamaica). In Qatar v. UAE, the Commission was composed of: Sarah Cleveland (United States), Chiara Giorgetti (Italy), Bernardo Sepulvuda-Amor (Mexico), Maya Shali-Fadel (Algeria) and Yeung Kam John Yeung Sik Yuen (Mauritius). Both Commissions were agreed with the unanimous consent of the parties to the dispute, since they were appointed under Article 12(1)(a). They contain a combination of external members and CERD members, with CERD members agreed by the States parties to the dispute rather than elected by the Committee. In total, they comprise six external members and four CERD members. It is notable that eight out of ten of the appointed Commissioners have a legal background.

On 11 January 2021, Qatar submitted a note verbale requesting the suspension of the proceedings in both communications following the diplomatic breakthrough in the Al Ula agreement. On 15 March 2021, a decision was issued by both Commissions in response to the request from Qatar, where it was decided to suspend proceedings and invite Qatar to inform the Commissions within one year whether it wishes to resume the consideration of the matter (see here and here). Until this date, the Commissions ‘remain seized of the matter.’ Although it seems likely that the Qatar communications will be discontinued, the appointment of the Commissions should be recognized as an important milestone as the first such bodies ever to be appointed. On the other hand, the Commissions did not advance to Article 12(3) and the election of a Chairperson and adoption of rules of procedure, and beyond to the requirements of Article 13.

The Commission in Palestine v Israel

With its decision on admissibility concerning the communication brought by Palestine against Israel, CERD requested its Chairperson to appoint the members of an ad hoc Conciliation Commission (UN Doc. CERD/C/103/4, para. 66). It is noteworthy that the Secretariat of CERD provided the disputing Parties with a list of experts with a view to establishing the Commission (Report of the Committee on the Elimination of All Forms of Racial Discrimination (2021), para. 49). Given Israel’s position on CERD’s decisions in the case, Israel did not take part in the consultations regarding the composition of the ad hoc Conciliation Commission. The necessary ‘unanimous consent’ between the parties required by Art. 12(1)(a) thus proved to be impossible to reach. This in turn led to the need for an election of Commission members by CERD in accordance with Art. 12(1)(b).

As CERD’s admissibility decision was adopted on 30 April 2021, the three month time limit for the consultation on the composition of the Commission (Rule 74 RoP CERD) would have expired at the end of July 2021. The ‘next session’ for the election of the members of the Commission should have then been the 104^th CERD session held in August 2021. However, it took the Committee until its 105^th session to elect the five Commissioners by a two-thirds majority vote from among its own members. The election took place by secret ballot in accordance with Art. 12(1)(b). The five Commission members elected by CERD are: Verene Shepherd (Jamaica), Gun Kut (Turkey), Faith Tlakula (South Africa), Chinsung Chung (Republic of Korea) and Michal Balcerzak (Poland). It is noteworthy that Mr. Balcerzak just recently got elected to CERD with his term commencing in 2022. However, as an elected and designated Committee member, he can still be regarded as being elected by CERD ‘from among its own members’ in the sense of Art. 12(1)(b). In the election of the Commission, CERD seems to have given considerable notice to an equitable geographical distribution with one member from each of the five Regional Groups of Members States of the United Nations. Two of these members, Ms. Tlakula and Mr. Balcerzak, have a background in public international law, which may prove to be useful in the examination of the substance of the communication and the drafting of the Commission’s report. It is further remarkable that with her election, Ms. Shepherd is now a member of the Commission in Qatar v KSA, as well as the Commission in Palestine v Israel. In a first session, this Commission will elect its Chairperson and adopt its rules of procedure in order to carry out its functions of fact-finding, conciliation and recommendation.

Conclusion

 The differing modes of composition under Articles 12(1)(a) and 12(1)(b) reveal the two sides to ICERD’s inter-State communications procedure; that of a bilateral conciliation between the Parties to the dispute on the one hand, and that of a compulsory and objective mechanism which aims to uphold the standards of the Convention on the other. The consensual appointment of the Commissions in the Qatar communications emphasises the bilateral aspect, while the compulsory election of the Commission in Palestine v Israel from among CERD members emphasises the objective aspect. It seems likely that only Palestine v Israel will see the completion of the Articles 11-13 mechanism, with the publication of a report containing findings and recommendations that may refer to potential violations of the treaty.