Keane, David (2022) Palestine v Israel and the collective obligation to condemn apartheid under Article 3 of ICERD. Melbourne Journal of International Law, 23 (2). pp. 251-275. ISSN 1444-8602
Abstract
Under art 3 of the International Convention on the Elimination of All Forms of Racial
Discrimination (‘ICERD’), 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. The provision is central to Palestine’s inter-state communication against Israel
under arts 11–13 of ICERD, in which it is argued that Israel’s policies and practices in the
occupied Palestinian territories constitute apartheid. Importantly, Palestine invokes two
obligations inherent in art 3 — the individual obligation of Israel to prevent, prohibit and eradicate
all practices of this nature, and the collective obligation of all states parties to ICERD to condemn
such practices by not recognising as lawful the illegal situation, or rendering aid or assistance in
its maintenance. This article examines the origin, meaning and implications of the collective
obligation to condemn apartheid under art 3 of ICERD. It traces its emergence in the text of art 3
through the drafting history of the provision. It outlines its implementation by the Committee on
the Elimination of Racial Discrimination (‘CERD’) in relation to apartheid South Africa from
1970–94, a period in which South Africa remained outside the treaty and the obligation of all states
parties to condemn apartheid was the focus of the Committee’s work. Finally, it considers its
potential implications in Palestine v Israel, underlining that a finding of apartheid would render
the obligation opposable in relation to the other 180 states parties to ICERD under all of its
mechanisms. It could be monitored in state reports, individual communications or inter-state
communications before CERD, or litigated in inter-state proceedings before the International
Court of Justice.
Metadata
Item Type: | Article (Published) |
---|---|
Refereed: | Yes |
Subjects: | Social Sciences > Law Social Sciences > Racism |
DCU Faculties and Centres: | DCU Faculties and Schools > Faculty of Humanities and Social Science > School of Law and Government |
Publisher: | University of Melbourne * Melbourne Law School |
Official URL: | https://law.unimelb.edu.au/__data/assets/pdf_file/... |
Copyright Information: | © 2022 University of Melbourne |
ID Code: | 28707 |
Deposited On: | 13 Jul 2023 13:38 by Vidatum Academic . Last Modified 13 Jul 2023 13:38 |
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