The UN Convention on the Elimination of All Forms of Racial Discrimination (CERD) is one of the most important and widely ratified international human rights instruments. It requires States to take measures to eliminate “distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”[1]
An interesting feature of the CERD is the compromissory clause contained in Article 22, which has been invoked as the basis for several cases before the International Court of Justice (ICJ). Article 22 states that
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.
Thus, the CERD explicitly provides the ICJ the jurisdiction to hear cases regarding its interpretation if the dispute cannot be resolved by either negotiation or by ‘procedures expressly provided for’ in the CERD, i.e., referring the case to the relevant Committee. Some cases, however, have been taken to the ICJ under this Article despite the disputants being unable to establish a connection between ‘racial discrimination’ and the measures they allege to violate the treaty. Indeed, Judge Yusuf stated in his dissenting opinion that ‘It is high time that the Court put an end to the attempts by States to use CERD as a jurisdictional basis for all kinds of claims which do not fall within its ambit.’[2] These issues usually arise at the provisional measures or preliminary objections stages. I argue that the compromissory clause of Article 22 is used strategically by States as a means of lawfare i.e., using the law to undermine the legitimacy of an opponent’s actions. This concept will be explored with reference to three of the ICJ’s cases pertaining to the interpretation of the CERD.
Armenia and Azerbaijan
The Nagorno-Karabakh region is a disputed territory between Armenia and Azerbaijan comprising a small enclave within Azerbaijani territory which hosts over 100,000 ethnic Armenians. For Armenia, the territory has important historical value for the creation of the Armenian ethnic identity. Known as Artsakh, it has been labelled “an emblem of endurance and victory” and the “stronghold” of Armenian identity. Equally, the region is associated with Azerbaijani identity as a centre for Azerbaijani cultural heritage. While it is territory belonging to Azerbaijan, the Nagorno-Karabakh region has been under the effective control of Armenia, which has occupied the territory since the First Nagorno-Karabakh War in 1992. The region is connected to Armenia by the Lachin Corridor, which is administered by Azerbaijan as well as Russian peacekeeping forces.
The dispute between Armenia and Azerbaijan had first been submitted to the ICJ in 2021 after the flare-up of tensions in Nagorno-Karabakh. The most recent order for preliminary measures issued by the ICJ in 2023 pertains to the blocking of the Lachin Corridor. This blockade was constituted by Azerbaijani protestors claiming that Armenia is unlawfully mining natural resources in Azerbaijani territory. In its application, Armenia alleged that the current blockade was a violation of Article 5 of the CERD, which provides for several rights, including the right to “freedom of movement and residence within the border of the State”, the right to leave and return to one’s country, and “the right to public health, medical care, social security and social services”. Azerbaijan contended that the protests were not staged by the State, but rather are genuine protests against the “continued pillaging of Azerbaijan’s natural resources by Armenia”.
Under Article 41 of the ICJ Statute, the ICJ is empowered to indicate provisional measures regarding the preservation of the respective rights claimed by the parties in this case. The Court must be satisfied that a link between the measures sought, and the rights asserted by the party requesting such measures is at least plausible. In this case, the ICJ found that there was a plausible link between ordering Azerbaijan to remove the blockade and ensuring the unimpeded movement of goods and people along the Lachin Corridor.
Furthermore, provisional measures can also be sought pending a decision on merits when there is a risk of irreparable prejudice to certain rights. Measures for such considerations will only be sought where there is a matter of urgency, when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the Court makes a final decision on the case. The ICJ noted the following:
restrictions on the importation and purchase of goods required for humanitarian needs, such as foodstuffs and medicines, including lifesaving medicines, treatment for chronic disease or preventive care, and medical equipment may have a serious detrimental impact on the health and lives of individuals.
Thus, the Court found a risk of irreparable prejudice of certain rights which must be addressed as a matter of urgency. Considering this finding, the Court ordered that Azerbaijan “must take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions.”
Although the Court ordered Azerbaijan to essentially remove the blockade, the invocation of the CERD seemed unnecessary and opportunistic. As highlighted by Judge Yusuf in his declaration, the blockade of the Lachin Corridor was a matter of international humanitarian law (jus in bello) as opposed to a violation of the CERD. He further argues that there was no substantial examination of the connection between the measures argued to violate the CERD, i.e., the blockade, and the provisions of the CERD. The Court does not examine how the blockade has a specific impact on the Armenian ethnic group – in Judge Yusuf’s words, there is not a “shred of evidence that the alleged acts or omissions constituted, even plausibly, acts of racial discrimination”, further highlighting that no such treatment was explicitly mentioned in Armenia’s final request for provisional measures.
Thus, it appears that the CERD’s compulsory jurisdiction clause was used by Armenia opportunistically to bring the dispute before the ICJ as part of a lawfare strategy. The Order indicates a bleak attempt to draw a connection between the CERD and its applicability to the present conflict, with the Court not indicating how the blockade was contributing to the racial (or ethnic) discrimination of the Armenian community in the Nagorno-Karabakh region.
Qatar and UAE
The CERD was also invoked in a dispute between Qatar and the United Arab Emirates (UAE) in 2019. This concerned measures imposed by the UAE that Qatar claimed to discriminate against Qatari nationals based on their national origin, a ground listed in the definition of ‘racial discrimination’ under Article 1 CERD. According to Qatar’s application, these included:
- The expulsion of all Qataris within its borders within two weeks of the measure imposed.
- A total travel ban, including transit bans.
- Ordering UAE citizens residing in Qatar to return to UAE or else forego their citizenship and/or face criminal sanctions.
- Affecting property rights of Qataris owning property in the UAE.
- Prohibiting any speech in support of Qatar, and
- The shutting down of Al-Jazeera Media Network offices and other Qatari stations in the UAE.
These measures were also condemned by the Office of the High Commissioner of Human Rights (OHCHR), Amnesty International and Human Rights Watch, among other human rights bodies.[3] The division of families was particularly highlighted as an alarming policy measure, with Qatar’s National Human Rights Committee claiming that 646 family reunification violations were committed.[4] Thus, the particularly targeted measures launched against Qataris, in light of the diplomatic tensions between the two States, does indicate discrimination.
The application for preliminary measures was sought under Article 36(2) of the ICJ Statute read in line with the compulsory jurisdiction clause of the CERD.[5] However, the invocation of the CERD is misplaced. In their joint declaration, Judges Tomka, Gaja and Gevorgian highlighted that discrimination on the basis of ‘nationality’ is not grounds for alleging ‘racial discrimination’ under the CERD.[6] Referring to the travaux preparatoires of the CERD, the Judges claim that nationality was excluded as a grounds upon which to claim discrimination in an amendment stating “the expression ‘national origin’ does not mean ‘nationality’ or ‘citizenship’”[7] as this would make the CERD a “far-reaching instrument”[8] affecting a multitude of rights.
It is interesting to note that the Court’s majority goes into detail about assessing whether the measures complained of do constitute discrimination based on ‘nationality’. This appears to be out of place, considering that this was an application for preliminary measures as opposed to a judgment on merits. Under Article 41 of the ICJ Statute, the Court must be satisfied about the plausible connection between the measures sought and the violation claimed. The in-depth analysis – which does not reflect the drafters’ intent as highlighted in the declaration – is at odds with the Court’s reasoning in Armenia v Azerbaijan, where the Court did not delve in an extensive analysis connecting the alleged violations to the CERD. Thus, the inconsistency of the standards necessary for invoking Article 41 of the ICJ Statute is an issue that must be resolved for future applications for preliminary measures.
Georgia and Russia
Relations between Georgia and Russia have been tense since the dissolution of the Soviet Union.
This particular dispute concerned the use of military force by Russia against Georgia in 2008, which led to a full-scale war, in response to Georgia’s crackdown on Russian-backed separatists in the semi-autonomous regions of South Ossetia and Abkhazia. Georgia instituted proceedings against Russia at the ICJ, invoking the CERD on the basis that Russian forces engaged in ethnic cleansing and mass expulsions in both South Ossetia and Abkhazia. In its amended request for provisional measures, Georgia cited a violation of Articles 2 and 5 of the CERD by Russian forces during the conflict. Article 2 requires States Parties to take various legal measures to condemn and eliminate racial discrimination, whereas Article 5 requires the enforcement of the right to equality before the law, as well as other stipulated rights.
However, the dissenting opinion highlighted that the majority did not inquire into the evidence that Russia’s actions were motivated by racial discrimination to determine a plausible link under Article 41 ICJ Statute. Although these were violations of international humanitarian law, Georgia had not adequately established an element of racial or ethnic discrimination behind Russia’s instigation of conflict. The majority’s acceptance of a dispute over the interpretation of the CERD by its mere invocation, rather than indulging in a proper analysis of its relevance to the dispute.[9]
Furthermore, the dissent highlights the “curious” nature of the claim filed by Georgia, having filed a claim only when an armed conflict had erupted.[10] Despite the alleged acts having been occurring for some time prior to the armed conflict, the opportunism of the invocation of the ICJ’s jurisdiction indicates that this could be an attempt at lawfare, rather than a purely genuine claim for redress under the CERD. This is coupled by the fact that there were no genuine attempts at negotiations between the Parties, as required by Article 22 CERD, before invoking the ICJ’s jurisdiction. Nor was there recourse to the CERD Committee by Georgia, who claimed the CERD for the first time at the ICJ, despite having complained about Russia’s aggression at other forums as well.[11] This substantiates the idea that the compromissory clause is used advantageously and opportunistically by States Parties, coupled by the low threshold required to establish a link between the alleged violations and the provisions of the CERD.
Commentary on Lawfare
The seemingly inconsistent approach to interpreting disputes brought before the ICJ under the CERD’s compromissory clause indicates that the CERD can be used as lawfare. As one of the most widely ratified UN human rights treaties with a compromissory clause, it provides States the opportunity to bring claims pertaining to human rights violations to the notice of the ICJ. The ICJ’s ruling, even for preliminary measures, brings the dispute to the attention of the global community, attaching legal significance and normative weight to the measures being sought.
However, the ICJ must also be careful in ensuring that it does not become complicit in its continued use for strategic purposes. While it may not have much control over which cases are brought to it, the Court must develop a consistent interpretation standard for preliminary measures. The precedent currently set for determining preliminary measures, particularly under the CERD, has created conditions for States to use the ICJ’s preliminary measures jurisdiction as a means to an end. As Judge Yusuf highlighted in his Declaration in Armenia v Azerbaijan, ‘Acceding to such requests undermines the credibility of a very important multilateral convention and the reliance on its compromissory clause (Article 22) for genuine claims relating to racial discrimination.’[12]
One must also consider the fact that such cases do not progress to the merits stage. For example, the Qatar v UAE case was dismissed at the preliminary objections stage because Qatar was unable to satisfy the applicability of the CERD. Nevertheless, this is an important lawfare strategy by aggrieved States. These cases are not necessarily disputes about the interpretation of a particular rule of international law, but rather a means to a moral victory. Applications for considering such issues to the merits stage are rare for cases concerning the CERD. This means that States are not necessarily seeking a clarification of international law, but rather a condemnation of measures that the ICJ considers prima facie violations of international law. This can serve to undermine the platform that the ICJ provides for the interpretation, clarification and advancement of international law, as States only refer disputes to the ICJ to gain a normative upper-hand.
Conclusion
Despite the fact that cases do not progress beyond the provisional measures or preliminary objections stages, it is interesting to note the invocation of the CERD despite there being little relevance of the treaty. Most disputes can be solved with recourse to the law on the use of force, namely Article 2(4) of the UN Charter. However, the compromissory clause in the CERD allows States the opportunity to invoke the ICJ’s jurisdiction as a means to legitimise its opponent, regardless of the acceptance of their legal arguments by the ICJ.
References
[1] UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195 (‘CERD’), Article 1(1)
[2] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Order of 22 February 2023, Declaration of Judge Yusuf [10]
[3] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Application instituting proceedings (11 June 2018), [7]
[4] ‘Top UN Court Rules UAE Blockade Violated Qataris’ Rights’ <https://www.aljazeera.com/news/2018/7/23/top-un-court-rules-uae-blockade-violated-qataris-rights> accessed 4 April 2023
[5] CERD, Article 22
[6] Qatar v United Arab Emirates, Joint Declaration [3]
[7] Ibid [4]
[8] Ibid
[9]Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Joint dissenting opinion of Vice-President Al-Khasawneh and Judges Ranjeva, Shi, Koroma, Tomka, Bennouna and Skotnikov [10]
[10] Ibid [3]
[11] Ibid [18]
[12] Ibid (n 2)
