Symposium on Jurisdiction, Responsibility, and Temporality: Nicaragua v. Germany Before the ICJ – Competing Jurisdictions? Apartheid Under CERD and Customary International Law

[Jinan Bastaki is Associate Professor of Legal Studies at New York University, Abu Dhabi.

Victor Kattan is Assistant Professor of Public International Law, University of Nottingham. He is also a Smuts Visiting Fellow at the University of Cambridge (2026-7).]

The proceedings in Alleged Breaches of Certain International Obligations in Respect of the Occupied Palestinian Territory (Nicaragua v. Germany) before the International Court of Justice (ICJ) have raised a fundamental question about the relationship between treaty-based jurisdiction and obligations of broader application under international law. Nicaragua instituted proceedings against Germany in March 2024, in relation to breaches of its international obligations in respect of the Palestinian people and the Occupied Palestinian Territory. It alleged, among other things, that Germany’s conduct in relation to Israel’s actions in the Occupied Palestinian Territory violated obligations arising under international human rights law, international humanitarian law and the Genocide Convention. The case has since moved into the preliminary-objections phase, after Germany challenged the Court’s jurisdiction and the admissibility of Nicaragua’s claims.

One significant aspect of Germany’s objections concerns Nicaragua’s allegations relating to racial discrimination, segregation and apartheid. Germany contends, in substance, that claims concerning obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD) cannot be brought before the Court without complying with the jurisdictional and procedural conditions attached to that Convention (Preliminary objections, paras. 71-72). In particular, Germany relied on Article 22 CERD, as well as its declaration accepting the Court’s compulsory jurisdiction under Article 36(2) of the ICJ Statute, to argue that Nicaragua’s claims fall outside the Court’s jurisdiction because the procedural requirements associated with the CERD framework have not been satisfied.

That argument raises a broader question that will be addressed in this blog: does the existence of a treaty-based mechanism for addressing particular violations prevent a State from invoking an obligation that exists independently under customary international law when there is a basis of jurisdiction for addressing it in two overlapping jurisdictional declarations submitted to the ICJ pursuant to the optional clause system in Article 36(2) of the Court’s Statute? This question is especially important in relation to apartheid and racial discrimination. These prohibitions are not merely conventional obligations arising from the CERD framework or from the Apartheid Convention. They constitute prohibitions under peremptory norms of customary international law, reflecting their fundamental character in the international legal order.

Germany and Nicaragua’s Arguments

In its memorial (paras. 114-119; 373-453), Nicaragua outlined its argument demonstrating that Germany was in violation of its international obligations, particularly in relation to apartheid, racial discrimination, and segregation. Nicaragua relied on both CERD, which Israel and Germany are parties to, and customary international law. Nicaragua cited CERD for formulations of the violation, for example, that Article 3 of CERD contains two obligations on States Parties: an obligation to “condemn racial segregation and apartheid” and an obligation “to undertake to prevent, prohibit, and eradicate all practices of this nature in territories under their jurisdiction,” (Nicaragua Memorial, Nicaragua v. Germany, para. 399). It also stated that Germany’s failure to condemn these practices as well as its support for Israel was “antithetical to the obligation to condemn racial segregation and apartheid and constitutes a direct violation of Article 3 of ICERD,” (para. 403). However, it also emphasized that these were obligations in customary international law (see paras. 384, 398, 405, 410, 431).

In its preliminary objections, Germany argued that no dispute existed between Nicaragua and Germany with respect to this specific claim and the preconditions for the seisin of the Court under Article 22 CERD were not met (paras. 71-77). It contended that Nicaragua’s racial discrimination claims cannot be brought on the basis of Germany’s 2008 optional clause declaration because the declaration expressly excludes litigation of any dispute which is subject to another method of peaceful settlement. Germany argues that another method of dispute settlement was established by CERD which Nicaragua did not have recourse to prior to initiating proceedings (paras. 78-82). 

Customary Nature of the Prohibition of Apartheid

In this blogpost, we focus on the customary international law status of the prohibition of racial discrimination, racial segregation and apartheid. We argue that Germany’s claim that Nicaragua’s failure to follow the procedural mechanisms established by Articles 11–13 CERD (including the inter-State procedure before the CERD Committee) cannot be treated as a mandatory gateway for every claim concerning racial discrimination, segregation or apartheid in customary international law. Similarly, negotiations under CERD do not necessarily constitute a prerequisite to judicial proceedings where the claim is founded on an independently applicable customary rule and there is a basis of jurisdiction in the ICJ’s Statute for resolving such claims. Where Nicaragua invokes an obligation that exists independently of CERD, its claim is not necessarily transformed into a CERD claim merely because the conduct in question also falls within the Convention’s substantive field of application.

The prohibition of racial discrimination, racial segregation and apartheid appear in multiple multilateral treaties and soft law instruments, spanning decades, reflecting a practice that is widespread, representative, and consistent. Nor are these treaties limited by their express terms to the situation within South Africa from 1948 until the early 1990s. These instruments include, in addition to Article 3 CERD (with 182 States Parties), Article 85 of the Additional Protocol I of 1977 to the Geneva Conventions (175 States Parties), which Nicaragua expressly mentioned in its pleadings; but see also Article 5 of the 1986 Declaration on the Right to Development (adopted by 146 votes to 1 (USA) with 8 abstentions), Article 1 of the 1988 International Convention against Apartheid in Sports (62 States Parties), and paragraphs 15 and 28 of the Declaration and Programme of Action of the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (adopted by 168 States–Israel and the US withdrew). Efforts to prohibit racial discrimination, racial segregation and apartheid also appear in the work of the International Law Commission (ILC). See Article 19 of the ILC’s 1996 Draft Articles on State Responsibility; and conclusion 23 (Annex e) of the 2022 ILC’s draft conclusions on the identification and legal consequences of peremptory norms of general international law (jus cogens). 

In addition, apartheid is defined specifically as a crime against humanity in multilateral treaties, with a view to providing a basis for prosecuting the crime, providing further evidence of an opinio juris. These include Article I of the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (56 States Parties); Article II of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (110 States Parties); Article 7 of the 1998 Rome Statute of the International Criminal Court (125 States Parties); Article 28C of the 2014 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (15 States Parties). See also Article 18 of the ILC’s 1996 Draft Code of Crimes against the Peace and Security of Mankind and Article 2 of the ILC’s 2019 Draft articles on the Prevention and Punishment of Crimes against Humanity.

While the number of States ratifying the Apartheid Convention and the ICC Statute might appear on the low side, it is worth remembering that different blocs of States are parties to these Conventions. Whereas most Global South states have ratified the Apartheid Convention, most Global North states have ratified the ICC Statute. In total, around 166 states are parties to a treaty (either the Apartheid Convention or the ICC Statute) that makes provision for prosecuting apartheid as a crime against humanity at the international and domestic levels. Furthermore, the International Criminal Tribunal for the former Yugoslavia (ICTY) confirmed the customary law status of apartheid as a crime against humanity (see Tadić case, para. 622).

The obligation to prohibit acts constituting apartheid in Article II of the Apartheid Convention must also amount to customary international law to the extent that they overlap with the definition of prohibited acts in Article II of the 1948 Genocide Convention, which already constitute customary international law.

As regards the perception that apartheid was exclusively a system that applied to Southern Africa at a specific historical moment which, according to Judge Tladi (para. 36), may have influenced some of his colleague’s views in the 2024 Advisory Opinion, it is worth noting that the Apartheid Convention’s treaty monitoring body was not confined to Africa. In their reports to the “Group of Three”, Belarus, Cuba, Iraq, Qatar, Syria, and the UAE expressly referred to Israel’s policies and practices toward the Palestinian people as falling within the territorial scope of Article II of the Convention.  

Thus, while the crime of apartheid is addressed in CERD, which provides its own procedure for bringing complaints, apartheid also constitutes a crime under customary international law that is applicable beyond Southern Africa. This raises the question of whether states are limited to the procedures available under CERD, or whether apartheid’s status as a crime under customary international law permits states to pursue alternative avenues for bringing claims.

An Assessment of the Claims

In Nicaragua v. United States (1984), the US made a similar objection to Germany in the present proceedings, which was brought under Article 36 of the ICJ’s Statute. It argued that “Nicaragua’s claims styled as violations of general and customary international law merely restate or paraphrase its claims and allegations based expressly on… multilateral treaties” (para. 69). The United States and Nicaragua had accepted the ICJ’s compulsory jurisdiction under Article 36(2) of the Statute, but the US’s 1946 declaration contained a specific reservation that jurisdiction did not extend to “disputes arising under a multilateral treaty” unless either all affected parties to the treaty were also parties to the case, or the United States specially agreed to jurisdiction. Because the US had not agreed to the Court’s jurisdiction in the said treaties (the UN Charter, the OAS Charter, the Montevideo Convention on Rights and Duties of States, and the Havana Convention on the Rights and Duties of States in the Event of Civil Strife), and all affected parties were not parties to the case, the USA argued that the Court did not have jurisdiction (paras. 67-68). Nicaragua’s response was that the reservation “has no application to the claims of Nicaragua based upon customary international law” (para. 71). The Court ultimately decided that principles that “have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of customary law” (para. 73). Accordingly, the ICJ held that the US reservation did not cover disputes arising from the interpretation of provisions of customary and general international law. 

In our view, CERD cannot exhaust the legal character of an obligation arising under customary international law merely because the same conduct may constitute a violation of the Convention. Article 36 ICJ Statute envisages that optional clause declarations may encompass “any question of international law” and not just “the interpretation of a treaty.” 

Conclusion 

Despite the multiplicity of multilateral treaties prohibiting racial discrimination, racial segregation, and apartheid, the ICJ has yet to determine definitively whether, and to what extent, these prohibitions have attained customary international law status that apply beyond Southern Africa. Nicaragua v. Germany provides the Court with an important opportunity to address these issues. The ICJ came close in its 2024 Advisory Opinion, but ultimately left it to individual judges to comment on. If the Court looks to the precedence of other international courts, such as the ICTY, it will find support for the claim that apartheid is indeed a violation of customary international law.

The significance of this question extends beyond the present proceedings. In Nicaragua v. United States, the Court made clear that the incorporation of a customary rule into a multilateral treaty does not deprive that rule of its independent existence or applicability as customary international law. The fact that a rule has been codified in a treaty does not mean that a State must rely on, or proceed through, the treaty in order to invoke that rule where a basis of jurisdiction exists independently under customary international law. As the Court explained, customary rules continue to apply separately from treaty law even where the two have identical content.

Applied to the present dispute, this reasoning supports the view that the existence of CERD and its dispute-settlement procedures does not, in itself, require a State invoking the prohibition of apartheid to proceed under CERD. Where the prohibition constitutes an independent rule of customary international law, a claim based on that customary obligation has a distinct legal basis from a claim based on CERD. The existence of a treaty mechanism therefore does not, without more, displace the possibility of invoking the corresponding customary rule through another available jurisdictional avenue such as Article 36(2) of the Court’s Statute. Nicaragua v. Germany will provide the Court with an opportunity to determine whether that principle applies to the prohibition of apartheid and, consequently, whether CERD’s procedural framework must be followed where the claim is instead founded on an independently applicable customary obligation.