1 the Permanent Mission of Israel to the United Nations and Other
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The Permanent Mission of Israel to the United Nations and other International Organizations in Geneva presents its compliments to the Secretariat of the United Nations (Office of the High Commissioner for Human Rights) and wishes to refer to the Note, dated 14 December 2018, by which the Secretariat informed the Permanent Mission of the decision adopted by the Committee on the Elimination of Racial Discrimination (“CERD” or “the Committee”) during its 97th session with regard to the Palestinian communication, dated 23 April 2018, which was purportedly made under Article 11 of the Convention on the Elimination of all Forms of Racial Discrimination (“the Convention”) (ICERD-ISC-2018/3). The present Note is submitted in response to the request of the Committee that Israel “supply any relevant information on issues of jurisdiction of the Committee or the admissibility of the communication”.1 As the Secretariat and CERD are aware, the Permanent Mission has presented in previous communications (most notably its Note, dated 3 August 2018)2 its principled position on this matter. In short, the Permanent Mission has explained that the inter-State complaint mechanism established under Article 11 of the Convention cannot be applied as between Israel and the Palestinian entity owing to the absence of treaty relations between them; and that CERD thus lacks jurisdiction to consider the aforementioned Palestinian communication under this mechanism. The Permanent Mission has also reiterated Israel’s continuing commitment to its obligations under the Convention and its willingness to address the issues raised in the Palestinian communication in appropriate fora, including as part of Israel’s appearances before the Committee. The Permanent Mission refers the Secretariat and CERD to the detailed submissions made in its previous communications, which find support in extensive references to established treaty law and State practice concerning objections to treaty relations both generally and under the present Convention. The Permanent Mission respectfully submits that, as a matter of law, this position is non- controversial and does not require much further elaboration. Accordingly, the present Note is limited to responding to claims made in the Palestinian Comments, dated 30 August 2018 (and transmitted to Israel on 9 October 2018) in reference to the Permanent Mission’s communication of 3 August 2018 (the “Palestinian Comments”).3 Needless to say, this Note is submitted without 1 The Permanent Mission notes that in the documentation relating to the Palestinian communication some confusion may have arisen regarding the use of the terms “jurisdiction” and “admissibility”. For the purposes of this Note, and in line with the Note of the Secretariat, dated 14 December 2018, the issue of “jurisdiction” is understood as referring to the question of whether the Committee has the legal mandate or authority to consider an inter-State complaint under Article 11 in the present circumstances. By contrast, the issue of “admissibility” refers to the various criteria that must be satisfied – only once jurisdiction has been established – in order for CERD to proceed to deal with the substance of a specific inter-State complaint in accordance with the terms of Article 11. Such criteria include complying with the various conditions outlined in the Convention and its accompanying Rules of Procedure, as well as the invocation and exhaustion of local remedies. To avoid confusion, the Permanent Mission wishes to make clear its position that, given the absence of treaty relations under the Convention between Israel and the Palestinian entity, CERD lacks jurisdiction to consider the Palestinian communication, and that this issue of the Committee’s competence is a preliminary one that must be settled before the Article 11 mechanism may be activated and questions of admissibility may be addressed. In light of the manifest lack of jurisdiction in the present circumstances, and the resulting inapplicability of the Article 11 mechanism, questions of admissibility do not arise and the Article 11 mechanism cannot be regarded as having been activated. 2 Diplomatic Note of The Permanent Mission of Israel to the United Nations and other International Organizations in Geneva to the Secretary-General of the United Nations, August 3, 2018, at 5-6 [hereinafter Diplomatic Note of The Permanent Mission of Israel to the United Nations]. 3 “Comments on Israel's Note”, ICERD-ISC-2018/3 (Aug. 30, 2018) [hereinafter Palestinian Comments]. 1 prejudice to Israel’s clear position that it does not recognize the Palestinian entity as a State, and is not in a treaty relationship with such an entity under the Convention. The Permanent Mission would note, at the outset, that the Palestinian Comments essentially contain two principal arguments: First, that States parties to a multilateral convention are not entitled to exclude the application of the convention between themselves and an entity that they do not recognize, and that this is especially the case in the present circumstances. Second, that the matters raised in the Palestinian communication, dated 23 April 2018, and purportedly made under Article 11 of the Convention, cannot be addressed in other fora. As will be demonstrated below, both these arguments are founded on unfortunate misunderstandings or misrepresentations of law and fact, and should thus be rejected by the Committee. The Palestinian claim that States parties are not entitled to exclude bilateral treaty relations under a multilateral treaty, including in the context of the Convention. 1. The claim that jurisdictional arguments are “formalistic” The Palestinian Comments begin by claiming that Israel’s approach in raising the question of the Committee’s jurisdiction over the complaint, purportedly made under Article 11 of the Convention, is “formalistic” and essentially an exercise in evasion. Perhaps more than anything else, this regrettable argument suggests an awareness by the Palestinian side of the weakness of the position it seeks to advance. It hardly needs stating that any institution wishing to maintain its legitimacy, and operate independently and impartially, must take the issue of jurisdiction seriously. The rules on jurisdiction play a critical role in defining the competence of an institution and serve to ensure that such competence is not abused or exercised on the basis of political prejudice or mere arbitrariness. Any institutional body that exceeds the bounds of the authority conferred upon it, and that is willing to address substantive matters without a well-founded assessment of its competence to do so, undermines the validity of its own decisions and harms the very credibility and integrity of the institution itself. The need to reject the notion that issues of jurisdiction are mere formalities is especially apparent in the present circumstances, where the question of jurisdiction concerns a fundamental issue of treaty law and practice that is of significant general import. For the Committee to determine that it has jurisdiction despite Israel’s explicit exclusion of the application of the Convention between itself and the Palestinian entity would require it to ignore an established principle of treaty law that is in widespread use, with potential implications beyond the Israeli-Palestinian context.4 Treating 4 It should be noted, in this context, that the issue of the legal effect of objections to treaty relations is also likely to arise, as a preliminary jurisdictional matter, in relation to the application submitted by the Palestinians on 28 September 2018 to the International Court of Justice (ICJ) concerning the relocation of the United States Embassy to Jerusalem. In this application, the Palestinian side has simply ignored numerous obvious problems associated with establishing the Court’s jurisdiction including, inter alia, the absence of treaty relations between the United States and the Palestinian entity under the Vienna Convention on Diplomatic Relations and its Optional Protocol (upon which the Palestinian side seeks to found jurisdiction). This fact alone should give the Committee pause. First, because it demonstrates that the question of objections to treaty relations is of a fundamental character with broad implications. And, second, because it shows a familiar Palestinian strategy of dismissing jurisdictional requirements as irrelevant 2 this issue as mere “formalism”, as the Palestinian Comments would like the Committee to do, would not only be incorrect as a matter of law; it would also politicize the work of the Committee, undermine its status as an independent and impartial institution, and ultimately harm efforts to enhance compliance with the Convention. Israel’s principled position concerning the Committee’s lack of jurisdiction in the present circumstances, as carefully and extensively presented in its previous communications, is therefore far from an act of disrespecting CERD, as suggested by the Palestinian Comments. It demonstrates, rather, that Israel takes seriously the provisions of the Convention. Indeed, it is the Palestinian submission that demonstrates disrespect by insisting that CERD should apply Article 11 without a serious and substantiated consideration of its mandate and powers.5 As made clear in the previous communication of the Permanent Mission, dated 3 August 2018, the terms of the Convention are unambiguous that recourse to the Article 11 mechanism is predicated on recognition and the existence of treaty relations