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 bythe Committee on the Elimination of Racial Discrimination and, it is argued, all the United Nationstreaty 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 regionalcase 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 instrumentapproach 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.