Mapping the International Convention on the Elimination of All Forms of Racial Discrimination as a Living Instrument

Abstract

The ‘living instrument’ doctrine has emerged as a key vehicle for evolution and innovation within the International Convention on the Elimination of  All Forms of Racial Discrimination (ICERD). Originating in the case law of the European Court of   Human Rights, the doctrine has been adopted by the Committee on the Elimination of Racial Discrimination and, it is argued, all the United Nations treaty bodies. Yet its origins and meaning under ICERD have not been explored. This article investigates its first invocation in an individual communication, Hagan v Australia. It contrasts regional case law, where individual judgments set key interpretive standards, with an international individual communications system that has evolved asymmetrically across the United Nations treaties and does not perform the same standard-setting role. The significance of concluding observations and general recommendations in understanding ICERD as a living instrument is detailed. The living instrument approach in recent inter-State complaints before the International Court of Justice and the Committee is discussed. In conclusion, the need to map ICERD as a living instrument across the multiplicity of its supervisory mechanisms is emphasised.