"Know Thyself”: Racial Discrimination before the International Court of Justice – Recent Jurisprudential Developments

Abstract

Being the oldest United Nations human rights treaty and enjoying widespread participation, the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD” or the “Convention”) was adopted in 1965 and entered into force in 1969. The Convention sets forth an overarching goal: the elimination of all forms of racial discrimination. In pursuit of this goal, the Convention requires States Parties to respect and protect fundamental human rights and the dignity of human beings against racial discrimination. Article 22 of the Convention grants jurisdiction to the International Court of Justice (“ICJ” or “Court”) over any dispute regarding the interpretation or application of the CERD “which is not settled by negotiation or by the procedures expressly provided for in this Convention.” Having fallen into oblivion for almost four decades, Article 22 has preoccupied the judges of the ICJ since 2008. After granting provisional measures in the case Georgia v. Russia, the Court subsequently dismissed the case for want of jurisdiction. Later, in 2017 and 2018 respectively, the ICJ granted provisional measures in the cases Ukraine v. Russia and Qatar v. United Arab Emirates (“UAE”). In June 2019, it rejected the request for the indication of provisional measures submitted by the UAE in the latter case. The above mentioned disputes are still pending before the Court. In the aforementioned instances, the ICJ has had the opportunity to partially elucidate certain abstruse aspects of the CERD, thus contributing to the development of international human rights law. In light of its recent jurisprudence, this paper sets out to present and assess the Court’s contribution to the decipherment of the CERD. In particular, it focuses on the following topical issues: the scope ratione materiae of the Convention, the alternative or cumulative character of Article 22 preconditions for the seisin the Court and the exhaustion of local remedies as precondition for admissibility of inter-State claims of breach of the CERD.