Breaking new ground? The CERD Committee’s decision on jurisdiction in the inter-State communications procedure between Palestine and Israel

2018 marked the year in which the CERD Committee received its first three inter-State communications under Art. 11 (1) CERD (an overview of the procedure is offered here). This was for good reason referred to as a historic development, given that this was the first time ever that such procedure has been used under any of the universal human rights treaties.

While the CERD Committee then issued its decisions on the jurisdiction and admissibility of two inter-State communications brought by Qatar against Saudi Arabia and the United Arab Emirates respectively in August 2019 already, it took the Committee until 12 December 2019 to also render its decision (available in three parts here) finding to have jurisdiction concerning the communication submitted by Palestine against Israel.

This decision, to which five Committee Members attached a dissenting opinion, which constitutes a highly unusual event in the practice of the Committee, deals with fundamental questions of treaty law, human rights law and the nature of the inter-State communications procedure laid down in Arts. 11 – 13 CERD.

Background of Palestine’s communication

As is well-known, Palestine was admitted to UNESCO in 2011 and since then qualifies as a member of one of the UN specialized agencies within the meaning of Arts. 17 (1) and 18 CERD, containing the so-called ‘Vienna formula’. On 2 May 2014 Palestine then deposited its instrument of accession to CERD. Acting as depositary, the Secretary-General of the UN accepted Palestine’s accession to CERD. It ought to be noted, however, that following Palestine’s accession to CERD Israel, which has been a State party to CERD since 1979, objected to this accession stating:

“The Government of Israel […] does not consider ‘Palestine’ a party to the Convention and regards the Palestinian request for accession as being without effect upon Israel’s treaty relations under the Convention. “

Notwithstanding, the CERD Committee has ever since treated Palestine as a State party of the Convention, inter alia by considering its first State report under Art. 9 CERD.

As readers of this blog will recall, on 23 April 2018 Palestine then submitted an inter-State communication against Israel under Art. 11 (1) CERD claiming violations of the Convention with regard to Palestinian citizens living in the Occupied Palestinian Territory (OPT), including East Jerusalem and Gaza. In its reportedly over 350 pages long initial communication to the CERD Committee, Palestine alleged violations of Arts. 2, 3 and 5 CERD by Israel – the gravest allegation being that of a violation of Art. 3 CERD (prohibition of racial segregation and apartheid). As Israel has entered a reservation to Art. 22 CERD, which allows a State party to refer a dispute with respect to the interpretation or application of the Convention to the ICJ (for the procedural preconditions of Art. 22 CERD see the recent judgement Ukraine v. Russian Federation, paras. 98-121), any proceedings before the ICJ to be brought against Israel for any such alleged violations are barred. Thus the inter-State communication procedure under Arts. 11-13 CERD remained the only formal procedure for Palestine to, if at all, allege breaches of CERD on the part of Israel.

Following an exchange of several submissions to the Committee from both, Israel and Palestine, as to the Committee’s jurisdiction to entertain the complaint, Palestine referred the matter back to the Committee in accordance with Art. 11 (2) CERD on 7 November 2018. In preparation of its decision on the issue of jurisdiction, the CERD Committee then asked its Secretariat to request advice from the UN Office of Legal Affairs (OLA). Responding to the questions of the Committee in an inter-office Memorandum, which has not been made available to the general public anywhere, OLA took the position that the Committee was prevented from examining Palestine’s communication for lack of a treaty relationship between Palestine and Israel. Israel gained knowledge of the Memorandum and its content and made the Committee aware of that fact (CERD/C/100/5, para. 2.4). This in turn led the CERD Committee to share the content of said Memorandum with the applicant State. As to the legal value of the OLA Memorandum, it has to be noted that the CERD Committee is in no way bound by any advice from OLA as this would impair the independence of the Committee and its members (compare Art. 8 (1) CERD). The Committee is neither an organ of the UN nor of its specialized agencies, it has been created by way of a separate treaty, namely CERD. In practice however, the Committee is factually associated with the UN System. In particular, the Committee’s Secretariat is provided by the UN Secretary General, Art. 10 (3) CERD (since 1997 the secretariat support is provided by the UN Office of the High Commissioner for Human Rights). The Committee’s request for an opinion from OLA through its Secretariat should be perceived as a mere outsourcing of research work in preparation of its decision, which might possibly be explained by the restricted resources available to the Committee.

Issue of the CERD Committee’s jurisdiction to entertain the complaint

Basing itself on its objection to the accession of Palestine to CERD, Israel argued that it had validly excluded treaty relations with Palestine. Accordingly, in Israel’s view, Palestine could not make use of the procedure laid down in Arts. 11 – 13 CERD as these articles were not applicable between itself and Palestine. Hence, Israel claimed that the CERD Committee should declare the communication inadmissible in view of its lack of jurisdiction.

At times, States which are already party to a multilateral treaty issue statements upon accession of a new member to said treaty by which they wish to exclude treaty relations with that new contracting party. This practice is based on the principle of consent, i.e. preventing a State from being coerced into a treaty relation with another State or entity. Initially, the ILC Special Rapporteur on reservations to treaties, Alain Pellet, saw statements of that kind as being governed by the law of reservations as they were modifying the legal effect of the treaty (A/CN.4/491/ADD.3, paras. 171 – 174). According to the Special Rapporteur, these statements should be regarded as reservations even when they were made by States already bound by the treaty (A/CN.4/491/ADD.3, para. 175). Eventually, following discussions within the ILC, Pellet departed from that view and specified that statements of non-recognition do not constitute reservations and therefore should not be dealt with in the ILC Guidelines (A/CN.4/499, paras. 48 et seq.). In its 2011 commentaries on the Guide to Practice on Reservations to Treaties, albeit not covering such declarations as such, the ILC then stated that a statement of the kind in question:

“clearly purports to have (and does have) a legal effect on the application of the treaty, which is entirely excluded, but only in relations between the declaring state and the non-recognized entity” (Yearbook of the International Law Commission, 2011, Vol. II, pt. 3, p. 69, para. 5).

In their individual opinion, five CERD Committee Members follow this view and consider States that are already party to a multilateral treaty to have the capacity to unilaterally exclude treaty relations with a newly acceding member (CERD/C/100/5, Annex, paras. 6 – 8). The dissenting Committee Members regard Israel’s statement upon Palestine’s accession to CERD as having that effect. Consequently, in their view, the Committee lacked jurisdiction to deal with the communication in the absence of treaty relations between Palestine and Israel (CERD/C/100/5, Annex, para. 18). In its majority decision, the CERD Committee acknowledges the principal possibility to unilaterally exclude treaty relations in a multilateral treaty under general international law as well (CERD/C/100/5, para. 3.13). Notwithstanding, it found to have jurisdiction.

Decision of the CERD Committee

Ever since the ICJ’s famous Barcelona Traction obiter dictum (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), paras. 33 – 34), it is generally accepted that human rights obligations, such as those contained in CERD, are of a non-reciprocal or objective character. Or to put it otherwise, each State party owes that type of obligation to every other State party to the Convention: they are obligations which are owed erga omnes partes. Indeed, this objective character of human rights obligations has long been confirmed by the European Commission of Human Rights (inter alia in Austria v. Italy, p. 19), the Inter-American Court of Human Rights (advisory opinion OC-2/82, para. 29) and the UN Human Rights Committee (General Comment No. 24, para. 17).

Following this approach, the CERD Committee perceives CERD as belonging to a specific category of treaties whose objective “is the common good, in contrast with other treaties the object and purpose of which are restricted to the interest of individual State parties” (CERD/C/100/5, para. 3.25).

In line with this starting point, it has to be considered that with regard to the substantive obligations of CERD, the exclusion of treaty relations with another State party does not release the excluding State of its conventional obligations vis-à-vis the people living under its jurisdiction. It still owes the fulfilment of its obligations under CERD to the remaining 180 State parties. Likewise, according to the CERD Committee, the procedural provisions of Arts. 11 – 13 CERD do not require the existence of bilateral treaty relations between the applicant State party (i.e. Palestine) on the one hand and the respondent State party (i.e. Israel) on the other. The objective character of CERD has as a:

“result, that any State party may trigger the collective enforcement machinery created by the respective treaty, independently from the existence of correlative obligations between the concerned parties” (CERD/C/100/5, para. 3.33).

Indeed, the wording of Art. 11 CERD only speaks of “State Parties” and thus seems to not require any further treaty relation to exist specifically between the applicant and the respondent State party (CERD/C/100/5, para. 3.40). From the perspective of the CERD Committee, Palestine and Israel are both indisputably State parties of CERD. Whether the procedure of Arts. 11 – 13 CERD nevertheless further requires treaty relations between the parties is difficult to answer by reliance on the mere wording of Art. 11 CERD alone. Rather, this question may only be decided in light of the object and purpose of the inter-State communication procedure (Art. 31 (1) VCLT) and its very character.

“Unique nature” of the inter-State communication procedure

In its decision, the CERD Committee stresses the “unique nature” of the procedure. It describes it as “a unique instrument to settle inter-State disputes, set up for the common good of all State Parties” and “observes the mechanism’s special nature which is conciliatory, opposite to adversarial“ (CERD/C/100/5, para. 3.41). Unlike the optional and reciprocity-based inter-State complaint procedures under any other UN human rights treaties (e.g. Arts. 41, 42 CCPR; Art. 21 CAT; Art. 76 CMW; Art. 32 ICED; Art. 10 Optional Protocol ICESCR; Art. 12 Optional Protocol CRC), the procedure under Arts. 11 – 13 CERD is compulsory. Accordingly, upon accession to CERD every State party is automatically bound by that inter-State communication procedure. It may neither be excluded by way of a reservation, as confirmed by Art. 20 (2) CERD.

From the mechanism’s compulsory character, the Committee infers a strong desire of the drafters of CERD to “set up protective measures to ensure that the provisions of the Convention are adequately observed and complied with by all State parties” (CERD/C/100/5, para. 3.38). The Committee further considers that this procedure should thus be “practical, constructive and effective” (CERD/C/100/5, para. 3.41). The possibility of one State party to unilaterally opt-out of the procedure (at least vis-à-vis one other State party) would in the Committee’s view therefore reduce the mechanism’s effectiveness, although the Committee concedes that the effectiveness would anyway ultimately depend on the will of the State parties involved (CERD/C/100/5, para. 3.41). Further, according to the Committee, the procedure under Arts. 11 – 13 CERD “aims at ensuring the collective good of all State parties” (CERD/C/100/5, para. 3.42). Consequently, the Committee sees it as belonging to the same family of procedures as the reporting procedure of Art. 9 CERD, as both procedures have:

“the common purpose of ensuring the effective prohibition of racial discrimination, an erga omnes norm, for the common good of the whole international community which cannot be derogated from by the unilateral action of one State party, and which has no relevance to the existence of any prior bilateral relationships between States” (CERD/C/100/5, para. 3.43).

Finally, the Committee addresses its former pronouncement in relation to the 6^th periodic report of the Syrian Arab Republic of 1981, where it had held explicitly, that Art. 11 (2) CERD implies the necessity of a treaty relationship between the two State Parties concerned (CERD/A/36/18, para. 173). The Committee now dismisses this finding as being without relevance to the present communication (CERD/C/100/5, para. 3.49), especially because Art. 11 (1) CERD had at the time not been invoked by Syria in the first place.

The consequence of the Committees interpretation is an objectification of the inter-state communication procedure: Arts. 11 – 13 CERD provide for an objective legal control, which only needs to be triggered by one State party. It constitutes a collective enforcement mechanism which serves the enforcement of the common good underlying CERD, rather than the enforcement of the applicant’s own rights under CERD. Interestingly, this interpretation renders the question as to whether treaty relations might be excluded under human rights law or whether human rights treaties “constitute a special category of treaties, to which certain rules of treaty law are not applicable” (CERD/C/100/5, para. 3.34) obsolete. This is simply because – at least according to the Committee – the procedure of Arts. 11 – 13 CERD does not require bilateral treaty relations to exist as between the two State parties involved in the proceedings.

Arguably, the Committee took an unorthodox approach finding to have jurisdiction but the decision is justifiable with a view to the established case law of other human rights treaty bodies regarding the objective character of human rights provisions. The novelty in the Committee’s decision lies in the finding that CERD’s inter-State mechanism does not require bilateral treaty relations; a finding that cannot be transferred to the optional inter-State complaint procedures under other human rights treaties. However, it remains to be seen in which way a mechanism that presupposes some kind of interaction between State parties in form of conciliation (Art. 12 (1) CERD) is going to function if one State party does not recognize the other State Party (and more so does not consider itself to be in a treaty relationship with the State party it does not recognize). This holds especially true since non-appearance in further proceedings on the part of Israel does not appear to be entirely unlikely.

It will only become apparent in future practice if the inter-State communication procedure under Arts. 11 – 13 CERD will in fact serve as a collective enforcement mechanism detached from the particular interest of the State which brings the communication. The two Qatari communications and the Palestinian communication against Israel rather suggest a strong self-interest on the part of the applicant States, just as it has been the case in the majority of previous inter-State complaint procedures under the ECHR and within the ILO system (see Leckie, 271 et seq.).

What’s next?

During its upcoming 101^st Session, the CERD Committee will have to decide on the admissibility of Palestine’s communication, that is the requirement of the exhaustion of domestic remedies (Art. 11 (3) CERD). Should the Committee find the communication to be admissible, a five-member ad hoc Conciliation Commission is to be appointed – either with or without the consent (Art. 12 (1) (a), (b) CERD) of the parties concerned. This Commission will then avail its good offices to the parties “with a view to an amicable solution of the matter on the basis of respect for this Convention” (Art. 12 (1) (a) CERD). It will eventually prepare a report containing “recommendations as it may think proper for the amicable solution of the dispute” (Art. 13 (1) CERD) that will then be communicated to the parties to the dispute which may or may not accept them. The report of the Commission and the declarations of acceptance or non-acceptance are subsequently to be communicated to the other 180 State parties of CERD. Arguably, the report might then be made available to the general public either by the Committee, the Commission or any State party (Ulfstein, para. 21; Schwelb, 1041).