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Home Articles posted by David Keane

CERD Reaches Historic Decisions in Inter-State Communications

Published on September 6, 2019        Author: 

On 29 August 2019, the Committee on the Elimination of Racial Discrimination (CERD) concluded its 99th session, in which it reached a historic decision on jurisdiction and admissibility in two of the three inter-State communications submitted under Article 11 of the International Convention on the Elimination of All Forms of Racial Discrimination, Qatar v Kingdom of Saudi Arabia and Qatar v United Arab Emirates. The Committee decided that it has jurisdiction in the two communications and has also declared them admissible. The Committee’s Chairperson will now appoint an ad hoc Conciliation Commission in the two communications in compliance with Article 12 of the Convention, whose good offices will be made available to the States concerned with a view to an amicable solution of the matter. In the third inter-State communication, Palestine v Israel, the Committee decided to postpone its consideration of the issue of jurisdiction to its 100th session, to be held in November-December 2019.

The Chair of the Committee stressed that ‘the decisions on the inter-State communications were the first such decisions that any human rights treaty body had ever adopted’. The tone is markedly different from that adopted at the conclusion of its previous 98th session on 10 May 2019:

The Committee had examined three interstate communications submitted under Article 11 of the Convention: one by Qatar against Saudi Arabia; one by Qatar against the United Arab Emirates; and another by the State of Palestine against Israel.  While it had held hearings on these communications, the Committee had decided not to take any decisions, due to the legal complexity of the issues broached and a lack of resources.

This somewhat striking statement was quoted in proceedings before the International Court of Justice on 7 June 2019 by the representative for Ukraine: Read the rest of this entry…

 

Application of the CERD Convention (Qatar v UAE) and “Parallel Proceedings” before the CERD Committee and the ICJ

Published on May 17, 2019        Author: 

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. Read the rest of this entry…

 

ICERD and Palestine’s Inter-State Complaint

Published on April 30, 2018        Author: 

On 23 April, The Guardian reported that Palestinian diplomats had filed an inter-state complaint against Israel for breaches of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). According to the Ministry of Foreign Affairs and Expatriates of the State of Palestine:

Palestine is a State whose territory remains under a belligerent colonial occupation. For its part, Israel, the occupying Power, has maintained its colonial occupation over the past fifty years by imposing racist and discriminatory policies against Palestinian citizens.  Confronting this pervasive reality of racism and discrimination is a priority. This cannot wait. It should not. No person or people should be asked to tolerate racism or the violence and injustice it breeds.

The Guardian writes that “the submission is believed to be the first interstate complaint filed under the treaty”. This is true in relation to ICERD, and also the entirety of the UN international human rights treaties; as the OHCHR highlights in its portal on inter-state complaints: “Note: these procedures have never been used.”

The inter-state procedure is not found in every treaty – there is no formal procedure for filing inter-state complaints under CEDAW and its Optional Protocol. The procedure is found in ICCPR, ICESCR, CAT, CMW, CED and Optional Protocols, but it is generally optional and both States have to have recognised the competence of the Committee to receive such communications. Read the rest of this entry…

 
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The Innocence of Satirists: Will Caricatures of the Prophet Mohammad Change the ECHR Approach to Hate Speech?

Published on September 26, 2012        Author: 

Dr David Keane is Senior Lecturer in Law at Middlesex University.

The global reaction to the trailer for the film The Innocence of Muslims has prompted the banning of the video-sharing website Youtube in three States, Afghanistan, Bangladesh and Pakistan, with Council of Europe member Russia mooting such a move. Similarly the publication of the Charlie Hebdo cartoons of the Prophet Mohammad in France, and the resulting international protests, appear to reignite questions of religious defamation and freedom of expression generated by Jyllands-Posten in 2006. To a certain extent the arguments appear unchanged, but there are elements to these recent controversies worth exploring.

Charlie Hebdo has already been in the French courts, in 2007, but was acquitted, while the Danish Public Prosecutor decided not to pursue criminal proceedings against Jyllands-Posten. Yet the debate this time around seems less strident in terms of freedom of expression. The BBC points to a somewhat divided French press, albeit one that emphasises freedom of expression within the parameters of the law, with one paper asking whether these are “some cartoons too many”. This is significant given that newspapers of all political colours are the frontline on freedom of expression. Guy Birenbaum on the Huffington Post (only available in French) writes: “Come on Charlie, just between ourselves, you don’t have the feeling that this is old hat? Already seen, already read? Where is the subversion, the insolence, and most of all, the humour?” He concludes that mocking Islam has become something of a national sport in France and as a result has lost its subversive value. In this atmosphere, a prosecution appears a little more possible.

Such a prosecution would almost certainly be challenged before the European Court of Human Rights. Article 10 of the European Convention reads:  “1. Everyone has the right to freedom of expression… without interference by public authority … 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others (…)”

In order to uphold the cartoonists’ rights under Article 10(1), the Court would have to go against its past jurisprudence and rule the interference unnecessary under Article 10(2). That would mark a new departure in terms of the European approach to hate speech, which has, perhaps understandably, been marked by the World War II experience and consistently upheld convictions for speech which attacks racial, ethnic or religious groups, or denies wartime atrocities.

Read the rest of this entry…