Keane, David

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Towards an ‘Amicable Solution’ in theUniversal Human Rights SystemDavid Keane 2021-04-28T09:00:30The 1965 International Convention on the Elimination of All Forms of RacialDiscrimination (ICERD) is the first of the core UN human rights treaties. It has182 States parties and is nearing universal acceptance. Articles 11-13 ICERDprovide for inter-State communications before the Committee on the Eliminationof Racial Discrimination (CERD), the only compulsory inter-State communicationsmechanism in the UN human rights system. Article 11(1) ICERD reads: ‘If a StateParty considers that another State Party is not giving effect to the provisionsof this Convention, it may bring the matter to the attention of the Committee.’There is no requirement of direct “victimhood”, thus, a public interest inter-Statecommunication is possible. Once the steps in Article 11 ICERD are completed,Article 12 ICERD provides for the appointment by CERD of an ad hoc ConciliationCommission comprising five persons, ‘who may or may not be members of theCommittee’. The Commission’s good offices shall be made available to the statesconcerned with a view to an ‘amicable solution’ of the matter. Article 13 ICERD tasksthe Commission with preparing a report embodying its findings on all questions offact and containing such recommendations as it may think proper for the amicablesolution of the dispute.In practice, Article 11 ICERD lay dormant for over 50 years before its activation inMarch-April 2018 in three inter-State communications, Qatar v Kingdom of SaudiArabia, Qatar v United Arab Emirates and Palestine v Israel. Qatar v Kingdom ofSaudi Arabia and Qatar v UAE were submitted on the same day and involve broadlythe same facts and issues related to the “blockade” of Qatar by its neighbours.Palestine v Israel, submitted the following month, alleges violations of ICERDcommitted in the Occupied Palestinian Territory.Drafting History in the Context of other UN Human Rights TreatiesICERD’s inter-State provisions were modelled on a 1954 Commission on HumanRights draft of the later International Covenant on Civil and Political Rights, whichset out a compulsory inter-State communications mechanism before the HumanRights Committee and, if no solution were reached, referral to the InternationalCourt of Justice (ICJ). From 1954-66, the measures of implementation of what wouldbecome the 1966 International Covenant on Civil and Political Rights (ICCPR) weresubstantially revised in the Third Committee of the UN General Assembly. Thesystem of inter-State communications within the ICPPR was made optional, requiringa declaration from both state parties recognising the competence of the Committeeto receive such communications. The clause vesting jurisdiction in the ICJ wasremoved. However, the ICERD’s draft provisions did not undergo the same revisionsin the Third Committee. As a result, and as set out in the 1954 draft Covenant,- 1 -ICERD provides a compulsory inter-State communications mechanism before CERD(Articles 11-13) and jurisdiction of the ICJ (Article 22).As described by Jean-Pierre Cot, conciliation is a flexible but relatively formalmethod for addressing inter-State disputes. In 1927, the Institut de DroitInternational defined the mechanism: ‘Conciliation was to be implemented by aconciliation commission, normally composed of five persons, including conciliatorsappointed by each party.’ As Cot highlights, the “classical model” of conciliation isa non-compulsory procedure with the decision to resort to conciliation that of theparties. However, its development within a multilateral treaty framework has seen theintroduction of an element of obligation, and “compulsory conciliation” is called forin a number of conventions. The 1954 draft ICCPR did not provide for a conciliationbody, rather tasking the Human Rights Committee with a ‘friendly solution of thematter’. Instead, ICERD drew this element from the 1960 UNESCO Conventionagainst Discrimination in Education and its 1962 Protocol. The 1962 UNESCOProtocol instituted a Conciliation and Good Offices Commission ‘responsible forseeking the amicable settlement of disputes’, which could be seised by one stateparty without requiring the consent of the other.Articles 11-13 ICERD are a hybrid of the 1954 draft Covenant and 1962 UNESCOProtocol, combining a UN treaty body and a conciliation body. Once the steps arecompleted before CERD under Article 11 ICERD, the Chairman of the Committee‘shall’ appoint an ad hoc Conciliation Commission under Article 12 ICERD. It isconstituted automatically upon completion of Article 11 ICERD, and is as a resultcompulsory in the obligatory resort to conciliation, in line with the UNESCO model. Itis comprised of five persons in accordance with the “classical model”. This UN treatybody-conciliation body hybrid approach would be emulated in two other UN humanrights treaties, the 1966 ICCPR and the 1984 Convention Against Torture (CAT).Interestingly, the UN human rights treaties adopted after these instruments wouldnot provide for a conciliation body. The ad hoc Conciliation Commission of Article42 ICCPR is not obligatory, appointed ‘with the prior consent of the States Partiesconcerned’. It requires what could be termed a “double opt-in” from both Statesparties, firstly to the inter-State communications procedure and then to conciliation.CAT requires an “opt-in” from both States parties to the inter-State communicationsprocedure but from there, conciliation appears to be discretionary on the part ofthe Committee Against Torture. Article 21 CAT reads: ‘the Committee may, whenappropriate, set up an ad hoc conciliation commission’ and thus lies somewherebetween the compulsory Article 12 ICERD and the consensual Article 42 ICCPR.A Second inter-State Avenue: Article 22 ICERDIn addition to the aforementioned inter-State communications before the CERD, Article 22 ICERD provides for the referral of disputes between States parties to theICJ. This judicial remedy is the most reserved provision in the treaty, having beenthe subject of 25 reservations in total. Inter-State cases alleging violations of ICERDarose first before the ICJ under Article 22 ICERD, and there have been three todate – Georgia v Russian Federation (2008), Ukraine v Russian Federation (2017)and Qatar v United Arab Emirates (2018). Article 22 ICERD has no counterpart inregional human rights treaties.- 2 -Under ICERD, a State may attempt to reach an amicable solution before CERDunder Articles 11-13 ICERD  and then, if the dispute has not been settled, refer thematter to the ICJ under Article 22 ICERD. However this scenario has yet to occurfor a number of reasons. First, the ICJ ruled in Ukraine v Russian Federation that‘negotiation’ is sufficient to satisfy the preconditions of Article 22 ICERD, meaningthere is no requirement to go through the Articles 11-13 ICERD mechanism beforeseising the Court. An inter-State dispute under ICERD may come to be decided bythe Court only, as is the case in Ukraine v Russian Federation, now at the meritsstage. Second, the large number of reservations to Article 22 ICERD means thatArticles 11-13 ICERD, where engaged, may be the beginning and end of the matter.In the context of Qatar v Kingdom of Saudi Arabia and Palestine v Israel, it isnoteworthy that Saudi Arabia and Israel respectively have a reservation to Article22 ICERD and the dispute is before CERD only. Third, a State may engage bothmechanisms in parallel, seen in Qatar v United Arab Emirates, where the possibilityof a judicial solution has now ended with the upholding of the UAE’s first preliminaryobjection by the Court in its February 2021 judgment, while the communicationcontinues before CERD. In sum, the ‘amicable solution’ of Articles 12-13 ICERDmust be capable of having an autonomous and final meaning.CERD Decisions on Jurisdiction and AdmissibilityOn 27 August 2019, CERD found in Qatar v Kingdom of Saudi Arabia and in Qatarv United Arab Emirates that it had jurisdiction and declared the communicationsadmissible, the first inter-State decisions ever reached by a UN human rightstreaty body. On 12 December 2019, CERD found in Palestine v Israel that it hadjurisdiction, and the communication is now at the admissibility stage before CERD.Further developments were then delayed by the pandemic, until this month (seebelow). CERD’s decisions would see the determination of certain procedural aspectsof Article 11 ICERD, and the Committee issued new Rules of Procedure governingthe Article 11 hearings which are not public yet. The differing roles of CERD underArticle 11 ICERD and the ad hoc Conciliation Commission under Articles 12-13ICERD were affirmed. In Qatar v UAE, the Committee found an issue raised bythe UAE ‘cannot be dealt with separately from the merits of the communication’,meaning it was an issue for the Commission – CERD deals with preliminary issuesunder Article 11 ICERD, while the Commission deals with the merits under Articles12-13 ICERD. The Commission remains under the aegis of CERD, which appoints itand closes the mechanism with the communication of the Commission report.A number of substantive points were reached in the aforementioned decisions.These include – a different standard for exhaustion of domestic remedies for inter-State as opposed to individual communications (CERD, Qatar v UAE, Admissibility,paras. 37-41); the existence of parallel proceedings in Qatar v UAE before the ICJdid not preclude examination of the communication by CERD (paras. 42-52); anddiscrimination based on “nationality” is within the scope of Article 1(1) ICERD, underthe definitional ground ‘national…origin’ (CERD, Qatar v Kingdom of Saudi Arabia,Admissibility, paras 10-19 and Qatar v UAE, Admissibility, paras 53-63). It may benoted on this last point that the ICJ would later reach the opposite conclusion inits February 2021 judgment (ICJ, Qatar v UAE, para. 105). A strong feature of the- 3 -decision in Palestine v Israel is the weight accorded to decisions of the regionalhuman rights bodies, judicial and non-judicial, affirming human rights treaties benefitfrom a ‘collective enforcement’ (CERD, Palestine v Israel, Jurisdiction, paras.3.24-3.30).Ad Hoc Conciliation Commissions – Appointed and SuspendedAn ad hoc Conciliation Commission in Qatar v Saudi Arabia and in Qatar v UnitedArab Emirates was appointed under Article 12 ICERD, as described by CERD inits annual report (para. 45). Last week, on 23 April 2021, CERD announced thatfollowing the Al Ula Agreement concluded on 5 January 2021 between Qatar andits neighbours, including the respondents, Qatar had requested the suspension ofthe proceedings. The ad hoc Conciliation Commissions have decided as a resultto suspend the proceedings and to invite any of the States parties concerned toinform within one year of the adoption of the Al Ula Declaration whether it wishes toresume the consideration of the matter. Until then, both Conciliation Commissionsremain seised of the matter (affirmed in decisions in Qatar v Kingdom of SaudiArabia at para 5, and in Qatar v UAE at para. 5). Even if ultimately discontinued,the appointment of the ad hoc Conciliation Commissions provides an interestingprecedent. Only four out of ten of the Commission members are also CERDmembers, underlining the differentiated character and role of the Commissions. Onemember of the Qatar v UAE Commission is a former judge and vice-president of theICJ, which would have the potential to bring much-needed dialogue between thebodies.ConclusionAlready in the drafting of ICERD, the limits of conciliation were noted. Waldron-Ramsey (Tanzania) commented in the Third Committee: ‘Conciliation… was notparticularly appropriate to the subject of the Convention.’ (para 41). More positively,in Palestine v Israel, CERD observed: ‘The Committee considers that given thatthe inter-State mechanism has been designed to be a conciliatory procedure,it should be practical, constructive and effective. Therefore, it considers that aformalistic approach cannot be adopted in this regard.’ (para. 3.41). In an inter-State context, with a potentially large number of alleged victims, this could involvestructural remedies such as reviewing legislation or policy. An amicable solutioncould display a combination of State-specific, bilateral, regional and internationalremedies by way of recommendations. According to Article 12(1)(a) ICERD, asolution must be reached ‘on the basis of respect for this Convention’. Article 13ICERD is silent on the issue of a finding of a breach of the Convention, but it wouldappear unnecessarily restrictive if a Commission were to consider itself unable topronounce on this.Articles 11-13 ICERD have the same limits as all inter-State human rightsmechanisms and will probably never be widely used. But it has particularsignificance as a near-universal and compulsory contentious human rightsjurisdiction. Strategically, it may be useful in addressing human rights situationswhere no alternative regional human rights mechanism exists, which has beenthe case in the three inter-State communications to date. In addition, there is the- 4 -potential for Articles 11-13 ICERD to contribute to the wider understanding of friendlysettlements in human rights cases. CERD has expressly looked to the regionalhuman rights bodies in its decision-making under Article 11 ICERD, and these maydo the same to inform the understanding of non-judicial remedies in inter-Statehuman rights cases. The amicable solution of Articles 12-13 ICERD has the potentialfor creative, structural remedies, providing a sui generis understanding of conciliationin the context of human rights.- 5 -

Towards an ‘Amicable Solution’ in the Universal Human Rights System

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Towards an ‘Amicable Solution’ in the Universal Human Rights System

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