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…