The CERD Committee on Discrimination Against Non-Citizens
In a previous blog post I explained the Convention on the Elimination of All Forms of Racial Discrimination’s (CERD) first three inter-State communications submitted under Article 11 CERD, specifically that of State of Palestine vs. Israel. Recently, the CERD Committee, in its 99th session, presented its decision on the jurisdiction and admissibility of two out of three communications (the State of Qatar vs. the Kingdom of Saudi Arabia ( jurisdiction and admissibility) and the State of Qatar vs. the United Arab Emirates (jurisdiction and admissibility), while postponing the third to its 100thsession. The Committee affirmed that ‘nationality’ can be a conventional ground for prohibition of discrimination; the exhaustion of local remedies is not required within the context of discriminatory “generalized policies”; and that States, in accordance with Article 22, may assert injury and institute proceedings before the International Court of Justice (ICJ) or before the Committee when CERD obligations are breached.
Qatar instituted the communication alleging violations of Articles 2,4,5, and 6 CERD and claimed that both Saudi Arabia and the UAE (hence: respondent States) have imposed coercive measures against Qataris solely based on their nationality.
Jurisdiction and admissibility are separate and apply at different stages of proceedings. While jurisdiction entails the legal power of the Committee to decide on the dispute, admissibility sets potential limits on adjudication. The respondent States argued that ‘nationality’ is not a conventional ground for the prohibition of racial discrimination under Article 1(2), and that therefore the Committee had no jurisdiction over these communications. Dismissing this argument, the Committee affirmed that the absence of ‘nationality’ in the definition of racial discrimination does not affect the jurisdiction of the communication. It referenced Article 1(3) which clearly prohibits discrimination against “any particular nationality”. It further highlighted its common practice of calling on States to prohibit discrimination against non-citizens whether based on their immigration status or nationality. Moreover, the Committee recalled its General Recommendation no.30 on ‘Discrimination Against non-Citizens’ where it delineated a two-step test on the prohibition of differentiated treatment of non-citizens, when (1) not applied pursuant to a legitimate aim and (2) not proportional to the achievement of the aim. By corollary, the Committee reaffirmed the prohibition of mass expulsion, especially of long-term residents, and the protection of non-citizens against arbitrary State policies.
If the Committee decided that it has jurisdiction, can it, nonetheless, refuse to hear the case as inadmissible? As a matter of fact, yes. Admissibility defines the circumstances under which the Committee can decline to exercise jurisdiction including exhaustion of local remedies and existence of parallel proceedings. The respondent States went to a great length to identify “available” local remedies. However, the Committee asserted that Qatar is not inclined to prove the exhaustion of local remedies because of the discriminatory “generalized policies and practices” of the respondent States. On parallel proceedings, the UAE argued that Qatar had created a lis pendes situation by taking two parallel proceedings bearing on the same dispute before the ICJ and the Committee, and in violation of the hierarchical and linear dispute resolution system under CERD. The Committee referred to Article 22 CERD and emphasized that States may choose between the alternative routes provided by the provision. It may be emphasized that in June 2019, the ICJ rejected UAE’s similar argument and its request of Qatar to withdraw the communication before the Committee. Finally, and within the context of lis pendes, the Committee expressed the non-judicial and non-binding character of its recommendations and asserted that the existence of parallel proceedings, if any, does not compromise the fairness of procedure and the equality of arms of any State party.
The inter-State communications are first of their kind with regard to any international human rights treaty body. As such, the recent decisions by the Committee are historic and set precedence for other treaty bodies where inter-State communication procedures can be found, such as the Convention on the Rights of the Child and the Convention Against Torture. The decisions also answer questions regarding the legal powers of the Committee and how much discretion and leeway it can exercise in future communications. As to what happens next, the Chairperson of the Committee will appoint an ad hoc Conciliation Commission which will submit its report and list of recommendations to the Committee regarding the substance of the communication.