"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.
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