Observations on Palestine’s Inter-State Communication Against Israel under the CERD

Introduction

On April 2, 2014, the State of Palestine (Palestine) deposited its instrument of accession to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which came into force for Palestine a month later.[1] In light of this accession, on April 23, 2018, by virtue of Article 11(1) of the CERD,[2] Palestine launched a 350-page inter-state communication (communication) against Israel,[3] claiming that Israel was in breach of its obligations under the CERD on account of “imposing racist and discriminatory policies against Palestinian citizens” in the Occupied Palestinian Territory (OPT) for the past 50 years.[4] On August 7, 2018, Israel submitted its written response to the Committee of the CERD (Committee).[5] On December 14, 2018, the Committee noted that Israel’s written response was not satisfactory in the eyes of Palestine and, as a result, based on Article 11(2) Palestine referred the communication back to the Committee.[6] At the Committee’s 99th session meeting in August 2019, the Committee was expected to consider its jurisdiction over the matter and the admissibility of the communication; however, “due to unforeseen circumstances” the Committee postponed these considerations to its 100th session, which will be held between November 25 and December 13, 2019.[7]

It is too early to fully examine the merits of this communication because the official documents of the communication, including the text of the communication and the written responses of Israel and Palestine, are not yet publicly available. However, this matter will obviously raise two noteworthy issues: (1) The relationship between Palestine and Israel under the legal framework of the CERD and whether it is relevant to the jurisdiction of the Committee and admissibility of this communication, and (2) the importance of determining whether and to what extent the CERD is applicable extraterritorially. 

Legal Relationship Between the Parties: Does the Principle of Reciprocity Matter? 

The first legal issue discussed here is the legal relationship between Palestine and Israel under the CERD. Israel invariably denies any treaty relationship of rights and obligations arising between itself and Palestine.[8] Following Palestine’s accession to the CERD, Israel delivered a communication to the UN Secretary-General arguing that Israel does not recognize Palestine as a state and “regards the Palestinian request for accession as being without legal validity and without effect upon Israel’s treaty relations under the Convention.”[9] Palestine responded by stating that it “will exercise its rights and honor its obligations with respect to all States Parties [of the CERD] … and … trust that its rights and obligations will be equally respected by its fellow States Parties.”[10]

On May 10, 2019, at its 98th session meeting, the Committee was expected to examine any preliminary questions regarding the communication from Palestine. However, the Committee simply stated that Israel refused the invitation of the Committee to attend the scheduled hearing “on the grounds that it did not consider itself to be in a treaty relationship with the State of Palestine.”[11]

If there were no treaty relationship between Israel and Palestine under the CERD, the Committee in this instance might not have jurisdiction to address this communication, and/or this communication might be inadmissible. 

However, the principle of reciprocity might not be relevant to Articles 11-13 of the CERD. Unlike other UN human rights treaties such as the Convention Against Torture (Article 21) and the International Covenant on Civil and Political Rights (Article 41), in which the inter-state communication procedure requires a declaration by a state party accepting the competence of the relevant Committee to receive complaints by other state parties, Articles 11-13 of the CERD are compulsory provisions, which apply to all state parties upon ratification or accession.[12] Furthermore, a close reading of Article 11(1) reveals that the state party that initiated the communication is simply bringing the matter of the other state party which is not giving effect to the provisions of the CERD to the attention of the Committee.[13] The purpose of an inter-state communication is to secure proper implementation of the CERD. Consequently, one could logically determine that reciprocity is irrelevant for the inter-state communication under the CERD because: (1) Articles 11-13 are compulsory provisions, and (2) all state parties that ratified the CERD have a legal responsibility to implement its provisions.

The Extraterritorial Application of the CERD 

The second legal issue at the heart of this communication is the extraterritorial application of the CERD. Article 3 of the CERD stipulates: “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.”[14] Palestine appears to claim that Israel has breached its obligations under the CERD outside of Israel’s own territory with respect to the OPT.[15] The question is therefore whether a state’s obligations under the CERD apply outside that state’s own territory.

Palestine has previously argued that Israel “is responsible for the implementation and fulfillment of human rights treaties in the OPT … and … is fully responsible for the protection of Palestinian human rights, including reporting to treaty bodies the situation of human rights in the OPT.”[16] On August 14, 2019, Palestine presented its initial and second periodic reports under the CERD in Geneva, stating that “Israel, the occupying power, refused to implement the Convention in the occupied territories.”[17] Indeed, Israel generally denies having any human rights treaty obligations beyond its own territory. On February 16, 2012, at the meeting of the Committee of the CERD discussing the fourteenth to sixteenth periodic reports of Israel, Israel reiterated that the CERD’s provisions do not apply beyond a state’s own territory since Israel did not make a special declaration “extending the application of that Convention to those areas, which lay outside Israeli national territory.”[18]

The Committee has not previously stated explicitly that Israel has a responsibility to apply the CERD in the OPT. However, the Committee has in the past raised a concern that the position of Israel regarding the OPT “cannot be sustained under the letter and spirit of the Convention, or under international law, as also affirmed by the International Court of Justice.”[19] As recently as 2012, it has recommended that Israel “review its approach and interpret its obligations under the Convention in good faith, in accordance with the ordinary meaning to be given to its terms in their context, and in the light of its object and purpose.”[20] The Committee has recommended that Israel ensure “that Palestinians enjoy full rights under the Convention without discrimination based on citizenship and national origin.”[21]Additionally, there are two other points of reference that suggest the Committee may view that the CERD is applicable to all territories under the state’s effective control.[22]

First, the ICJ in Georgia v. Russian Federation concluded that the CERD’s provisions apply “to actions of a State party when it acts beyond its territory” since “there is no restriction of a general nature in CERD relating to its territorial application.”[23] Furthermore, in the Wall Advisory Opinion, the ICJ observed that in both human rights treaties that contain specific limitations on application regarding territory and those which do not, human rights treaties are applicable extraterritorially during periods of armed conflict and military occupation, particularly in the OPT.[24] Second, the Committee has previously addressed the extraterritorial application of the CERD and highlighted that there is an obligation on state parties (Australia, Canada, Norway, UK, and USA) to ensure that corporations registered in their states are not violating indigenous people’s right lands when they are acting abroad.[25] Therefore, these prior statements by the ICJ and the Committee support the argument that the CERD is applicable outside the state’s own territory, where the concerned state party is exercising effective control. If this is the prevailing view, then evidence establishing that Israel exercises an effective control over all the OPT would be crucial.

Conclusion

The Palestinian communication is only the third inter-state communication to be filed under the CERD and under a UN treaty body in general,[26] just one month after the first two were filed by the State of Qatar against the Kingdom of Saudi Arabia and the United Arab Emirate.[27] It raises significant questions regarding the procedure of inter-state communication under Article 11 and the applicability of the CERD extraterritorially. Ultimately, whatever the outcome of the communication, it will shed light on both the effectiveness and limitations of inter-state communication within the framework of the CERD and human rights treaties more generally. 

About the Author: Shadi Sakran is a Post-Doctoral Researcher at Graduate School of International Cooperation Studies (Kobe University) and an Attorney admitted in Israel.