Special Character of Human Rights Obligations and the Jurisdiction of theCommittee on the Elimination of Racial Discrimination in the Palestine v. Israel Case

Zgłoś artykuł

PDF (English)

Słowa kluczowe

Committee on the Elimination of Racial Discrimination
human rights
International Convention on the Elimination of All Forms of Racial Discrimination
inter-state complaints jurisdiction
obligations erga omnes

Jak cytować

Balcerzak, M. (2021). Special Character of Human Rights Obligations and the Jurisdiction of theCommittee on the Elimination of Racial Discrimination in the Palestine v. Israel Case. Polish Yearbook of International Law, 40, 93–108. https://doi.org/10.24425/pyil.2021.138431

Abstrakt

Among UN human rights treaty bodies that have the competence to examine inter-state communications, only the Committee on the Elimination of Racial Discrimination (CERD) has had the possibility to develop its case law in this regard (as of 2020). One of these cases – submitted by the State of Palestine against Israel – resulted in a controversy arising from the respondent state’s declaration excluding any treaty relations between Palestine and Israel, the latter considering the former “a non-recognized entity.” The present paper analyses the CERD’s decision of 12 December 2019 in which the Committee found that it had jurisdiction to hear the inter-state communication. The author argues that while invocation of the “special character” of human rights obligations constitutes a powerful argument in judicial discourse, this should not lead to (re)opening debates on self-contained regimes and alienating human rights treaties from the norms and principles of general international law. At the same time, there are also valid reasons to perceive the obligations enshrined in the ICERD as being of a specific and erga omnes character.

https://doi.org/10.24425/pyil.2021.138431
PDF (English)

Bibliografia

Admissibility of the Inter-state communications submitted by Qatar against the United Arab Emirates, CERD/C/99/4, 30 August 2019.

Admissibility of the Inter-state communications submitted by Qatar against the Saudi Arabia, CERD/C/99/6, 30 August 2019.

Advisory opinion of Inter-American Court of Human Rights, OC-2/82, 24 September 1982.

Committee on the Elimination of Racial Discrimination, Inter-state communication submitted by the State of Palestine against Israel, CERD/C/100/3, 12 December 2019.

Committee on the Elimination of Racial Discrimination, Inter-state communication submitted by the State of Palestine against Israel, CERD/C/100/4, 12 December 2019.

Committee on the Elimination of Racial Discrimination, Inter-state communication submitted by the State of Palestine against Israel, CERD/C/100/5, 12 December 2019.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987).

Council of Europe: European Court of Human Rights Ireland v. The United Kingdom, 5310/71, 13 December 1977.

Craven M., Legal Differentiation and the Concept of the Human Rights Treaty in International Law, „European Journal of Human Rights” 2000, t. 11, nr 3, s. 489-530.

Czapliński W., Concepts of Jus Cogens and Obligations Erga Omnes in International Law in the Light of Recent Developments, „Polish Yearbook of International Law” 1997-1998, t. XXIII, s. 87-97.

Eiken J., Breaking new ground? The CERD Committee’s decision on the jurisdiction in the inter-State communications procedure between Palestine and Israel, 29 January 2020, https://bit.ly/3Adq1lK.

International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010).

International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969).

International Convention on the Elimination of all Forms of Racial Discrimination, New York 7 March 1966.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (signed 18 December 1990, entered into force 1 July 2003).

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976).

International Criminal Court, Territorial jurisdiction in Palestine of 5 February 2021, No. ICC-01/18, 5 February 2021.

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10).

Inter-State Communication Submitted by the State of Palestine Against Israel: Decision on Admissibility – Committee on the Elimination of Racial Discrimination (CERD/C/103/4)

Interstate Complaint under Articles 11-13 of the International Convention for the Elimination of All Forms of Racial Discrimination.

Ireland v. The United Kingdom, 5310/71, Council of Europe: European Court of Human Rights, 13 December 1977.

Judgment (Preliminary Objections) of International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), 1 April 2011.

Judgment (Preliminary Objections) of International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), 4 February 2021.

Judgment of European Court of Human Rights in the Airey v. Ireland (App. No. 6289/73), 9 October 1979.

Judgment of International Court of Justice, Barcelona Traction, Light and Power Case (Belgium v. Spain), 5 February 1970.

Jurisdiction of the Inter-State communications submitted by Qatar against the United Arab Emirates, CERD/C/99/3, 30 August 2019.

Jurisdiction of the Inter-State communications submitted by Qatar against Saudi Arabia, CERD/C/99/5, 30 August 2019.

Keane D., ICERD and Palestine’s Inter-State Complaint, 30 April 2018, https://www.ejiltalk.org/icerd-and-palestines-inter-state-complaint.

Keane D., Mapping the International Convention on the Elimination of All Forms of Racial Discrimination as a Living Instrument, „Human Rights Law Review” 2020, t. 20, s. 236-268.

Klabbers J., On Human Rights Treaties, Contractual Conceptions and Reservations, [w:] I. Ziemele (red.), Reservations to Human Rights Treaties and the Vienna Convention Regime, Springer, Dordrecht 2014.

Linderfalk U., Reservations to Treaties and Norms of Jus Cogens – A Comment on Human Rights Committee General Comment No. 24, [w:] I. Ziemele (red.), Reservations to Human Rights Treaties and the Vienna Convention Regime, Springer, Dordrecht 2014.

Mik C., On the Specific Character of State Obligations in the Field of Human Rights, „Polish Yearbook of International Law” 1993, t. XX, s. 113-136.

Optional Protocol to the Convention on the Rights of the Child on a communications procedure (adopted 19 December 2011, entered into force 14 April 2014), A/RES/66/138.

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adopted 10 December 2008, entered into force 5 May 2013), A/RES/63/117.

Permanent Court of International judgment S.S. Lotus case (France v. Turkey), Leyden 7 October 1927.

Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America), application filed with the Registry of the Court on 28 September 2018.

Report of the CERD of its 99th and 100th sessions, Consideration of communications received under art. 11 of the Convention.

Simma B., D. Pulkowski, Of Planets and the Universe: Self-contained Regimes in International Law, „European Journal of International Law” 2006, t. 17, nr 3, s. 483-529.

Simma B., Self-contained regimes, „Netherlands Yearbook of International Law” 1985, t. 16, s. 111-136.

Tams C., Enforcing Obligations Erga Omnes in International Law, Cambridge University Press, Cambridge 2009.

The Effect of Reservations on the Entry Into Force of the American Convention on Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82, 24 September 1982.

UN Human Rights Committee, CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6, 4 November 1994.

Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force 27 January 1980).

Vienna Convention on the Law of Treaties, 1969.

Vierdag E.W., Some remarks about special features of human rights treaties, „Netherlands Yearbook of International Law” 1994, t. 25, s. 119-142.