The Same Thing? Negotiation and Articles 11-13 of the CERD Convention in Ukraine v Russian Federation

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, in Georgia v Russian Federation (2011), a joint dissenting opinion in the preliminary objections judgment (of President Owada, Judges Simma, Abraham and Donoghue, and Judge Ad Hoc Gaja) examined the question in a section entitled “Are the two modes referred to in Article 22 alternative or cumulative?” The dissenters were of the view that Georgia had satisfied the negotiation precondition, and hence the question became of relevance to their position. They felt it would be ‘illogical’ to consider the two modes in Article 22 as necessarily cumulative. They based this on the idea that ‘negotiation’ and the Articles 11-13 procedure are essentially the same thing – a desire to seek a negotiated solution, given that the CERD Committee has no power to impose a legally binding solution. A cumulative approach would be asking the parties to go through the same process twice. ‘In short’, they argued, ‘direct negotiation and referral to the Committee are two different ways of doing the same thing’, and it is enough to entitle the applicant to come before the Court if one of the two modes has been pursued.

Second, in Ukraine v Russian Federation, the preliminary objections hearings in June 2019 saw the grammar of Article 22 discussed in detail, a point also raised by the joint dissenters in Georgia v Russian Federation. The Russian Federation, in arguing that the preconditions are cumulative, focused on the meaning of the third “or” in Article 22, ‘which is not settled by negotiation or by the procedures expressly provided for in this Convention’. The Russian Federation proposed “or” has an equivalence with “and” when it follows a negative. Ukraine responded that “or” means “or” – its ordinary meaning is disjunctive, creating a choice between alternative propositions. The grammatical arguments settled on the view that while “or” can be read to mean “and” when it follows a negative, there is not a requirement to read it as such.

Third, Ukraine pointed out that Article 22 gives the Court jurisdiction over two types of dispute – disputes concerning the interpretation or disputes concerning the application of the CERD. It argued that if recourse to the CERD Committee procedure was mandatory, an interpretive dispute could never reach the Court. Under Article 11, the CERD Committee is only competent to examine communications ‘that another State Party is not giving effect to the provisions of this Convention’ – in other words, disputes concerning the application of the CERD Convention. A cumulative reading of Article 22 therefore deprives of effect the words ‘any dispute…with respect to the interpretation…of this Convention’. The Russian Federation found the point to be highly theoretical, given that a difference relating exclusively to the interpretation of the Convention is improbable. Even if such a situation were to arise, it found it unlikely the CERD Committee would adopt such a rigid view of its own competence and refuse to pronounce on the issue.

The CERD Committee admissibility decision in Qatar v United Arab Emirates

On 29 August 2019, in its admissibility decision under Article 11 in Qatar v United Arab Emirates (2019), the CERD Committee decided to take the alternative rather than cumulative approach: ‘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.’ The CERD Committee quoted the provisional measures order in Georgia v Russian Federation and a dissenting opinion of Judge Trindade in support of its view, neither of which were determinative of the question. It did not reference any of the above arguments raised in ICJ proceedings.

Qatar did refer the CERD Committee to the joint dissenting opinion in Georgia v Russian Federation: ‘As explained by five ICJ judges in a Joint Dissenting Opinion in Georgia v Russian Federation, negotiation and the Convention’s procedures are two different ways of doing the same thing, that is to say, seeking an agreement premised on the parties’ ability to reconcile their positions’.

ICJ judgment in Ukraine v Russian Federation

On 8 November 2019, the ICJ determined by fifteen votes to one that ‘Article 22 imposes alternative preconditions to the Court’s jurisdiction’. It applied the rules of Articles 31-33 of the Vienna Convention, examining text, context and object and purpose. It did not refer to the CERD Committee’s opinion of the summer.

It found the grammatical argument based on the text of Article 22 to be indeterminate. It noted that ‘while the word “or” may be interpreted disjunctively and envisage alternative procedural preconditions, this is not the only possible interpretation’, accepting that the third “or” could have a conjunctive meaning as well.

It then turned to the need to interpret Article 22 in its context, in particular Articles 11-13 of the CERD Convention. It considered the objective of the Articles 11-13 procedure, for the States concerned to reach an agreed settlement of their dispute:

The Court therefore considers that “negotiation” and “the procedures expressly provided for in this Convention” are two means to achieve the same objective, namely to settle a dispute by agreement. Both negotiation and the CERD Committee procedure rest on the States parties’ willingness to seek an agreed settlement of their dispute. It follows that should negotiation and the CERD Committee procedure be considered cumulative, States would have to try to negotiate an agreed solution to their dispute and, after negotiation has not been successful, take the matter before the CERD Committee for further negotiation, again in order to reach an agreed solution. The Court considered that the context of Article 22 does not support this interpretation. In the view of the Court, the context of Article 22 rather indicates that it would not be reasonable to require States parties which have already failed to reach an agreed settlement through negotiations to engage in an additional set of negotiations in accordance with the modalities set out in Articles 11 to 13 of CERD. (para. 110)

The 2011 joint dissenting opinion had a decisive influence in determining the question. It had disagreed with the majority only on whether Georgia had satisfied the negotiation precondition; and its views on the alternative/cumulative question were not in disagreement with a majority that had yet to offer an opinion on this. Hence it was relatively straightforward for the Court to adapt that aspect of the opinion into a majority decision. The Court followed both of its key findings, that the textual or grammatical reading based on the meaning of the third “or” was indeterminate, and that the contextual reading that the preconditions are ‘two different ways of doing the same thing’ as the joint dissenters put it, or ‘two means to achieve the same objective’ as the Court put it, meant an alternative reading was required.

Types of dispute that could not reach the Court under a cumulative reading

The Court did not make a determination on Ukraine’s “interpretive dispute” argument. It referred to it only, summarising as ‘if Article 22 required exhaustion of the CERD Committee procedure, a dispute limited to the interpretation of [the] CERD [Convention] would never satisfy the preconditions for States to seise the Court.’ It offered no view on whether this is correct. But Ukraine had identified a type of dispute that could not reach the Court under a cumulative reading.

There is another type of dispute, not raised in proceedings, that could also not reach the Court under a cumulative reading – a multi-State Party dispute. If we place the relevant provisions of Articles 11 and 22 side by side, Article 11(1) reads: ‘If a State Party considers that another State Party is not giving effect to the provisions of this Convention (…)’. Article 22 reads: ‘Any dispute between two or more States Parties (…)’. What can be highlighted is the numbers, the ‘or more’ element of Article 22. Article 11 allows only for one State Party on either side, two in total. This language is consistent throughout the remaining provisions of Article 11, with a reference in Article 11(2) to ‘both parties’ and ‘bilateral negotiations’. Article 22 allows for a multi-State Party dispute, ‘two or more’. A cumulative reading of Article 22, whereby disputants would first have to access the Articles 11-13 procedure, would mean that a multi-State Party dispute could not reach the Court. It is then obliged to find a reading of the preconditions as alternative to allow a potential multi-State Party dispute to reach it. Multi-State Party disputes have been before the ICJ before, as discussed previously on this site.

As the Russian Federation pointed out, the “types of dispute” argument assumes a certain rigidity on the part of the CERD Committee in relation to its own competence that may not be borne out in practice. But even so, it could still act as textual evidence to support an alternative reading.

The Same Thing? Negotiation and Articles 11-13

The Court’s reasoning (in para. 110 above) is that negotiation and the Articles 11-13 procedure are two means to achieve the same objective. Hence it accepts that negotiation and Articles 11-13 are not equivalent means, but it considers them closely related – it even terms the Articles 11-13 procedure ‘an additional set of negotiations’. It considers their objective to be the same, ‘an agreed solution’. For the Court, negotiation(s) has become a synecdoche for the Articles 11-13 procedure.

The Articles 11-13 procedure contains elements of negotiation, including an option (but not a requirement) in Article 11(2) of ‘negotiation(s)’. Article 12 then sees the appointment of an ad hoc Conciliation Commission. We have yet to have any reflection on the meaning or role of this body, with the first about to be appointed in two inter-state communications, but it is apparent that negotiation and conciliation are not the same. The Russian Federation pointed this out, that ‘conciliation under the auspices of the CERD Committee cannot be regarded as a kind of negotiation, since, unlike negotiation, it entails third-party intervention’. Article 33 of the UN Charter lists them side by side, ‘negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement (…)’, as different types of dispute settlement. Articles 11-13 includes but is not limited to negotiation, and its conciliation element is not just additional negotiation.

The objective of negotiation may be an agreed solution, but the objective of the Articles 11-13 procedure is an ‘amicable solution’. An amicable solution is not the same as an agreed solution. Amicable can simply mean “non-hostile”, and does not imply that the parties must somehow be in agreement. An amicable solution could be reached that supports one disputant over another, and lacks any form of agreement between the parties.

The CERD Committee has itself emphasised that it is an expert monitoring body entitled to adopt ‘non-binding recommendations’, and is not ‘a judicial body entitled to adopt a legally binding judgment’. But the non-binding nature of its recommendations does not mean that the Articles 11-13 procedure represents (only) a negotiation to an agreed settlement. This could become of greater consequence should a respondent state “disagree” and reject the ad hoc Conciliation Commission’s recommendations. In that case the negotiation aspect fails, as does the agreed settlement. But the ad hoc Conciliation Commission’s recommendations, even though non-binding, could still be considered to form an ‘amicable solution’, whether accepted by all of the disputants or not.

Conclusion

The reasoning of the Court in the November 2019 judgment relies on a narrow understanding of the Articles 11-13 procedure. Negotiation and Articles 11-13 are not ‘the same thing’, nor ‘two means to achieve the same objective’. Given that none of the three inter-state communications before the CERD Committee to date under Articles 11-13 are complete, it may take time for its objective to be fully understood. However, it does not rest solely on settling a dispute by agreement. The process of conciliation with a view to an amicable solution is very different to a negotiation. According to the Max Planck Encyclopaedia of International Law, it is ‘a half-breed method for the settlement of disputes. It stands some way between diplomatic methods for the settlement of disputes such as negotiation … and arbitral or judicial settlement on the other.’ Arguably, the Court arrived at the correct dispositif, but should have explored an alternative motif to get there.