New Rules of Procedure of the Ad Hoc Conciliation Commission in Palestine v Israel

The inter-State 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 three inter-State communications submitted to a UN human rights treaty body. 

ICERD’s inter-State procedure unfolds before two bodies. Under Article 11, the Committee on the Elimination of Racial Discrimination (CERD) 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 and making available its good offices to the States parties concerned in order to reach an amicable solution of the matter. As readers of this blog will recall, CERD ruled positively on the questions of jurisdiction and admissibility in all three cases to date (see Keane, Eiken and Eiken). Consequently, three ad hoc Conciliation Commissions were set up (discussed here).

On 4-5 May 2022, the ad hoc Conciliation Commission in Palestine v Israel held its first in-person meeting and published its Rules of Procedure (available here). It may be recalled that the first two inter-State communications, Qatar v Kingdom of Saudi Arabia and Qatar v United Arab Emirates, appointed an ad hoc Conciliation Commission but did not advance to the adoption of Rules of Procedure before they were discontinued. Hence, we are in uncharted territory for an inter-State communication before a UN human rights treaty body. The 2022 Rules are the first governing the working methods and functions of a conciliation body in a human rights treaty and contain a number of interesting points worth commenting on.

CERD and Article 11 Rules of Procedure

Under Article 10(1) ICERD, the Committee shall adopt its own Rules of Procedure. In 1986, CERD adopted its Rules which include “Communications from States Parties under Article 11” (Part XVI, Rules 69-71). However, when the mechanism was first triggered by Qatar and then Palestine in March-April 2018, gaps in these Rules were apparent. For example, although the title of Part XVI refers to Article 11, these Rules governed only Article 11(1), the initial communication from one State Party that it considers that another State Party is not giving effect to the provisions of the Convention. There were no Rules at all for the subsequent hearings and decision-making before the Committee under Articles 11(2)-(5). This prompted the Committee to issue new “Rules of Procedure regarding the hearings carried out pursuant to Article 11” in April 2019 (Report of the Committee on the Elimination of All Forms of Racial Discrimination (2019), UN Doc. A/74/18, Annex II).

Ad Hoc Conciliation Commission and Articles 12-13 Rules of Procedure

CERD’s 1986 Rules of Procedure govern the “Establishment and functions of the Ad Hoc Conciliation Commission under Articles 12 and 13 of the Convention” (Part XVII, Rules 72-78), but as with the 1986 Rules on Article 11, these were not very detailed. In addition, Article 12(3) expressly requires the adoption of new Rules of Procedure (‘the Commission…shall adopt its own Rules of Procedure’). This underlines the separate character of the Commission, which (as discussed in the link above) may or may not be composed of members of CERD. In contrast to traditional inter-State conciliation, the adoption of the Rules of Procedure under Article 12(3) lies solely with the Commission, and the parties to the dispute do not have any discretion in this respect. Since each Commission draws up its own Rules of Procedure, the procedure may be adapted to the particular circumstances of the dispute. The 2022 Rules now adopted under Article 12(3) set out 20 Rules in total. Some new elements or interpretations will be briefly highlighted.

First, Rule 1(4) “Application of the Rules” reads that ‘The Commission is expected to complete its mandate within a reasonable timeframe until the matter is fully considered’. In general, time limits throughout the Articles 11-13 mechanism (of which there are four in total) fall only on States Parties to the dispute, and not on the deliberations of CERD or the ad hoc Conciliation Commission. The standard of a ‘reasonable timeframe’ for its own workings has thus been introduced by the Commission. It is to be welcomed – the inter-State communications mechanism to date has progressed too slowly, although there are clear mitigating factors including the pioneering nature of the communications and the global pandemic. What exactly a reasonable timeframe might be is difficult to gauge, but a determination on the merits would presumably require at least one-two years. If the Commission takes too long, this may undermine a wider aim of encouraging other States Parties to consider using the mechanism (also, under other UN human rights treaties), and so the reasonable timeframe appears an important standard to govern the Commission’s work.

Secondly, in its Rules of Procedure, the Commission puts clear emphasis on its conciliation functions. According to Rule 2(1) it is the Commission’s mandate ‘to make available its good offices to the States concerned with a view to an amicable solution of the matter on the basis of respect for the Convention’. The States parties are expected to co-operate in good faith with the Commission (Rule 15). With regard to finding an amicable solution, this is of course an obligation of conduct rather than an obligation of result. In arriving at an amicable solution of the matter, the Commission enjoys almost complete freedom, although the solution must be based on respect for the Convention. The Commission may take any measure which it considers expedient and it may call upon the parties to make suggestions as to the settlement of the dispute (Rule 14). In order to facilitate conciliation between the parties, all matters related to the conciliation proceedings are to be kept confidential. This ‘extends also to the settlement agreement’ (Rule 16). Hence, there is an incentive for the disputing States to reach a settlement under the mechanism.

Thirdly, under Rule 2(3) “Role of the Commission”, the Commission ‘may also decide to hear oral statements from the States Parties.’ The conduct of oral hearings is not set out in the text of Articles 12-13 ICERD. While the Parties to the dispute have already conducted oral hearings before CERD under Article 11, these were limited to issues of jurisdiction and admissibility. There is a clear benefit to potential fresh hearings on the merits of the communication before the Commission. Such hearings may assist the Commission in fulfilling its mandate to issue findings of fact and recommendations for the amicable solution of the dispute.

An important evolution from the Article 11 hearings before the Committee is seen in Rule 12 “Meetings of the Commission”. Under Rule 12(2), ‘the Commission may invite the States Parties concerned to appoint one or several representatives to take part in the proceedings before the Commission’. In CERD’s 2019 Rules, it invited the States Parties concerned to appoint ‘one representative’ only to take part in the oral proceedings before the Committee (Rule 1(7)). This was a reflection of the text of Article 11(5), which entitles the States Parties to the dispute to send ‘a representative’ to take part in the proceedings. In practice, this seemed unnecessarily restrictive, requiring the State Parties concerned to choose between an agent or counsel as their representative. The Commission has rightly allowed for ‘one or several representatives’, allowing States Parties to be potentially represented through an agent and one or more counsel.

Under Rule 2(3), the Commission ‘shall consider the matter on the basis of information made available to it by the Committee as well as other relevant information supplied by the States Parties or obtained from any other relevant sources’. Article 12(8) refers to information from CERD, and from the States Parties concerned, but not to ‘any other relevant sources’.  This appears to open a window to potential third party source materials, which could include for example UN reports, NGO or civil society materials, or any other relevant source. Conversely, the Rules of Procedure do not provide for more far-reaching fact-finding competencies such as the hearing of witnesses or on-site investigations.

Finally, the Rules also affirm the two potential routes towards an amicable solution of the matter – a conciliation or an agreed ‘settlement’ between the Parties, which is confidential. Failing that, Rule 19 “Content of the report” affirms that the Commission’s report will set out its findings of fact and recommendations for the amicable solution of the dispute, communicated to the Parties to the dispute and then to all States Parties to ICERD.

Rule 19 sets out the content of that report. Besides general information regarding the procedure (Rule 19(a)-(c)), the report contains a ‘statement of facts’ (Rule 19(d)), as well as ‘findings on all questions of fact relevant to the issue between the parties’ (Rule 19(e)). This differentiation between ‘statement’ and ‘findings’ seems to allow the Commission to make findings as to potential violations of ICERD. Further, the report contains ‘recommendations as the Commission may think proper for the amicable solution of the dispute’. According to the Rules of Procedure, the Commission’s report may contain recommendations even if an amicable settlement has been reached between the parties. While the recommendations are made ‘for the amicable solution of the dispute’ and are primarily aimed at the failure to reach a successful settlement, they may also usefully guide or inform a post-settlement framework. This is in line with Rule 16 which allows for the publication of the settlement agreement ‘where its disclosure is necessary for purposes of implementation and enforcement’.

Conclusion

The 2022 Rules governing the work of the Commission provide some insights into how this first determination of the merits of an inter-State communication may proceed. The language is not obligatory, but it seems that the Commission has established a number of procedural pathways to enable it to arrive at a full consideration of the matter in Palestine v Israel. This may include new hearings before the Commission involving agent and counsel of the States Parties concerned. It may draw in source materials from the Article 11 hearings and decisions, the Parties to the dispute themselves, as well as any other source. Rule 15 “Cooperation of Parties with the Commission” notes that the Parties are ‘expected to co-operate in good faith with the Commission and are invited to comply with requests by the Commission to submit written materials, provide evidence and attend meetings’. As highlighted previously, it seems unlikely that Israel will cooperate with the mechanism, although the potential for fresh hearings with agent and counsel ought to at least prompt a re-think on whether it should set out its side of the merits of the dispute. If it does not cooperate, this would remove the potential for conciliation via an agreed settlement, but would not affect the final report with findings of fact and recommendations for the amicable solution of the dispute. This report will eventually be made available to all other 180 States Parties to ICERD (Art. 13(2)) and arguably to the general public as well (Schwelb, 1041).