CERD Reaches Historic Decisions in Inter-State Communications

On 29 August 2019, the Committee on the Elimination of Racial Discrimination (CERD) concluded its 99^th 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 100^th 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 98^th 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: ‘Even now, over a year on from the Committee’s first receipt of such complaints, it has taken no decisions in any of those cases’.  Ukraine’s representative continued: ‘if this Court exercises jurisdiction in this case, it is not going to undermine an already-functioning and effective alternative mechanism for addressing inter-State disputes under the Convention’. These two decisions mean that the inter-State communications procedure under Articles 11-13 must now be considered both functioning and effective. They also provide a number of substantive and significant findings.

Jurisdiction

The decisions on jurisdiction in Qatar v Kingdom of Saudi Arabia and Qatar v United Arab Emirates focus on the opening words of Article 11, ‘If a State Party considers that another State Party is not giving effect to the provisions of the Convention’, with both respondent States arguing that this requires evidence of a current or ongoing violation. They believe the Committee lacks jurisdiction because there is no evidence of any ongoing violations. In addition, both respondent States raised the meaning of ‘national origin’, one of the five grounds in the definition of racial discrimination in Article 1(1), arguing that this word does not prohibit differentiated treatment based on current nationality. They call for a lack of jurisdiction due to the absence in the treaty of prohibited treatment based on current nationality. CERD rejected both arguments on the narrow question of jurisdiction. It held the issue of current or ongoing conduct cannot be dealt with separately from the merits of the communication. The issue of nationality raises a question of interpretation which does not affect the jurisdiction of the Committee. Consequently the Committee decided in both communications that it has jurisdiction to examine the exceptions of inadmissibility raised.

Admissibility

The decisions on admissibility in Qatar v Kingdom of Saudi Arabia and Qatar v United Arab Emirates raise a number of questions of importance. Firstly the issue of non-exhaustion of domestic remedies in the specific context of inter-State communications was examined. The United Arab Emirates argued in detail on a range of available and effective domestic remedies which had not been accessed by Qatari nationals. The applicant State responded that the local remedies rule ‘does not apply to claims of the kind before this Committee.’ Its complaint involves a ‘systematic, generalized policy and practice that has caused, and continues to cause, widespread violations of the Convention’, and principles of international law do not require the exhaustion of local remedies in cases involving breaches of this nature. Its claims are ‘preponderantly based on direct injury to it, not its nationals’. The Committee agreed: ‘the Committee considers that exhaustion of domestic remedies is not a requirement where a “generalized policy and practice” has been authorized.’ This is an important finding that distinguishes inter-state communications from individual communications.

Secondly the existence of concurrent or “parallel” proceedings before the International Court of Justice were raised by the United Arab Emirates, which argued that the applicant State had created a lis pendens situation where two parallel proceedings bearing on the exact same dispute between the same parties were progressing simultaneously. It felt that this was in direct violation of the hierarchical and linear dispute resolution architecture of the Convention and ‘may entangle the Court and Committee in conflicting interpretations of the same provisions of the Convention’. The Committee decided to take the so-called “alternative” rather than “cumulative” approach to interpreting Article 22 of the Convention. It held:

The Committee considers that the word “or” between “by negotiation” and “by the procedures provided for in this convention” in Article 22 of the Convention clearly indicates that the State parties may choose between the alternative proposed by that provision. Moreover, the Committee, an expert monitoring body entitled to adopt non-binding recommendations is not convinced that a principle of lis pendens or electa una via is applicable which should rule out proceedings concerning the same matter by a judicial body entitled to adopt a legally binding judgment.

It may be emphasized that the ICJ has yet to determine both the meaning of the above-cited “or” in Article 22, with nuanced arguments from Russia on this question in recent proceedings, as well as the applicability of the lis pendens or electa una via principle. Meanwhile CERD has nailed its interpretation to the mast.

Thirdly, in both admissibility decisions, the Committee examined in more detail the scope ratione materiae of the Convention on the issue of nationality. This is another question that has arisen in ICJ proceedings with dissenting opinions by Judge Crawford and others in the Qatar v United Arab Emirates Order of 23 July 2018. The Committee accepted that the travaux préparatoires of the Convention show that in the different stages of the elaboration of the Convention the ground “national origin” was understood as not covering “nationality” or “citizenship”. However it cites Article 1(3) that legal provisions of States Parties concerning nationality or citizenship cannot discriminate against any particular nationality. In addition it cites its practice and the standards in its General Recommendation 30 on discrimination against non-citizens, including the call that ‘non-citizens are not subject to collective expulsion’. In light of this ‘constant practice’ the Committee exercises its competence ratione materiae when confronted with differences of treatment based on nationality. Hence it rejected the exception of both respondent States related to the absence of the term “nationality” in the definition of racial discrimination.

Next steps: Palestine v Israel and Conciliation Commission

CERD adopted new Rules of Procedure on inter-State communications pursuant to Article 11 on 29 April 2019. These included the establishment of a Working Group composed of five members to assist the Committee in dealing with inter-State communications, referenced in the admissibility decisions. The next step for the Working Group acting on behalf of the Committee will be to reach a decision on jurisdiction, and if jurisdiction is established, admissibility, in the Palestine v Israel communication.

The progression to Article 12 in Qatar v Kingdom of Saudi Arabia and Qatar v UAE will see the appointment of an ad hoc Conciliation Commission ‘comprising five persons who may or may not be members of the Committee’, appointed with the unanimous consent of the parties to the dispute. Since the Article 11 Working Group and the Article 12 Conciliation Commission are both composed of five members, continuity of membership is possible. In accordance with Article 12 (1)(b), if the States parties to the dispute fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission not agreed upon by the States parties to the dispute shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its own members. Article 12(3) states that the Commission will adopt its own rules of procedure.

Under Article 13, the Commission will submit a report to the Committee with its findings on fact and recommendations. The States parties have three months in which to indicate whether they accept any recommendations contained in the report of the Commission. The report of the Commission and declarations of the States parties are communicated to all States parties to the Convention.

CERD’s statement indicates a wider aim of the inter-State communications procedure, ‘to create the conditions of peace, justice and freedom in the concerned countries.’ This echoes the Preamble to the Convention, that ‘discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples’. CERD has vowed that this endeavour would continue through the ad hoc Conciliation Commission that would soon be appointed.