Thread by @mabecker17

The more I think about the new #Qatar v #UAE case at the #ICJ, the more I think #Qatar's submission of an inter-State communication to the #CERD Committee in May 2018 raises a serious obstacle to establishing the ICJ's jurisdiction pursuant to CERD article 22. 1/

Recall that #CERD art 22 provides for #ICJ jurisdiction only when the dispute "is not settled by negotiation or by the procedures expressly provided for in this Convention". In its Application, #Qatar asserts that its effort to negotiate a settlement with #UAE has failed. 2/

#Qatar is probably right that the two preconditions in article 22 are alternative, not cumulative. A state likely does not need to show that bilateral negotiations AND the procedures laid out in CERD arts 11-13 have failed before it can unilaterally trigger #ICJ jurisdiction. 3/

Qatar cites the 2011 joint dissent by five judges in the Georgia v Russia case (another #CERD dispute) which argued persuasively that the art 22 preconditions are not cumulative (an issue not reached in the Court's judgment). See paras 39-47 here: icj-cij.org/files/case-rel…. 4/

But the fact that going through the detailed procedures provided for in CERD arts 11-13 is not compulsory is a different issue from what effect that procedure has--once it has been initiated by a State--on the requirements to establish ICJ jurisdiction under CERD art 22. 5/

For good background on the inter-State communication procedure under CERD arts 11-13, see this @ejiltalk post by David Keane from April 2018 (relating to Palestine's invocation of the procedure against Israel): ejiltalk.org/icerd-and-pale…. #Qatar #UAE 6/

It is entirely possible that the #ICJ will find that because #Qatar has voluntarily begun an inter-State communication procedure against #UAE under CERD art 11, the requirements to establish jurisdiction under art 22 remain unmet--meaning, the case cannot proceed at the ICJ. 7/

In essence, #Qatar's decision to invoke the #CERD art 11 procedure against #UAE could be seen by the Court to mean that, in substance, negotiations directed at a settlement have not yet gone "as far as possible", which is really what the preconditions in art 22 are all about. END

And thank you to @s_starrenburg for provoking me to think about this more carefully.