On 8 November 2019, the ICJ issued its preliminary objections judgment in Ukraine v. Russian Federation – see here for an excellent discussion of its importance. This piece focuses on one aspect of the decision, that the “preconditions” of Article 22 of the CERD Convention are alternative rather than cumulative. It looks specifically at the reasoning in the decision, and the understanding that it relies on of the Articles 11-13 inter-state communications procedure before the CERD Committee. It may be recalled that Articles 11-13 applies to all States Parties to the CERD Convention and has an importance beyond the jurisdiction of the Court. In the judgment the right outcome (dispositif) may have been reached, but the reasoning (motif) may be problematic in relation to the Court’s narrow understanding of Articles 11-13 as negotiation.
Article 22 and its alternative/cumulative preconditions
Article 22 of the CERD Convention reads:
Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.
Three principal arguments on the alternative/cumulative question will be highlighted, as they relate to the eventual decision.
First, Read the rest of this entry…