By its Order of 23 July 2018, the Court, having heard the Parties, indicated the following provisional measures:
"(1) The United Arab Emirates must ensure that
(i) families that include a Qatari, separated by the measures adopted by the United Arab Emirates on 5 June 2017, are reunited;
(ii) Qatari students affected by the measures adopted by the United Arab Emirates on 5 June 2017 are given the opportunity to complete their education in the United Arab Emirates or to obtain their educational records if they wish to continue their studies elsewhere; and
(iii) Qataris affected by the measures adopted by the United Arab Emirates on 5 June 2017 are allowed access to tribunals and other judicial organs of the United Arab Emirates;
(2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve." (I.C.J. Reports 2018 (II), pp. 433-434, para. 79.)
Pursuant to Article 43, paragraph 1, of the Rules of Court, the Registrar addressed to States parties to CERD the notifications provided for in Article 63, paragraph 1, of the Statute. In addition, in accordance with Article 69, paragraph 3, of the Rules of Court, the Registrar addressed to the United Nations, through its Secretary-General, the notifications provided for in Article 34, paragraph 3, of the Statute.
On 22 March 2019, the UAE, referring to Article 41 of the Statute and Articles 73, 74 and 75 of the Rules of Court, also submitted a Request for the indication of provisional measures, in order to "preserve the UAE's procedural rights" and "prevent Qatar from further aggravating or extending the dispute between the Parties pending a final decision in th[e] case".
For the UAE: H.E. Ms Hissa Abdullah Ahmed Al-Otaiba,
H.E. Mr. Abdalla Hamdan AlNaqbi,
Ms Lubna Qassim Al Bastaki,
Sir Daniel Bethlehem,
Mr. Scott Sheeran,
Mr. Mathias Forteau.
For Qatar: Mr. Mohammed Abdulaziz Al-Khulaifi,
Mr. Pierre Klein,
Ms Catherine Amirfar,
Mr. Lawrence H. Martin,
Mr. Nico Schrijver,
Mr. Vaughan Lowe.
In the Application, the following claims were made by Qatar:
"65. Qatar, in its own right and as parens patriae of its citizens, respectfully requests the Court to adjudge and declare that the UAE, through its State organs, State agents, and other persons and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control, has violated its obligations under Articles 2, 4, 5, 6, and 7 of the CERD by taking, inter alia, the following unlawful actions:
(a) Expelling, on a collective basis, all Qataris from, and prohibiting the entry of all Qataris into, the UAE on the basis of their national origin;
(b) Violating other fundamental rights, including the rights to marriage and choice of spouse, freedom of opinion and expression, public health and medical care, education and training, property, work, participation in cultural activities, and equal treatment before tribunals;
(c) Failing to condemn and instead encouraging racial hatred against Qatar and Qataris and failing to take measures that aim to combat prejudices, including by inter alia : criminalizing the expression of sympathy toward Qatar and Qataris; allowing, promoting, and financing an international anti-Qatar public and social-media campaign; silencing Qatari media; and calling for physical attacks on Qatari entities; and
(d) Failing to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions.
66. Accordingly, Qatar respectfully requests the Court to order the UAE to take all steps necessary to comply with its obligations under CERD and, inter alia :
(a) Immediately cease and revoke the discriminatory measures, including but not limited to the directives against 'sympathizing' with Qataris, and any other national laws that discriminate de jure or de facto against Qataris on the basis of their national origin;
(b) Immediately cease all other measures that incite discrimination (including media campaigns and supporting others to propagate discriminatory messages) and criminalize such measures;
(c) Comply with its obligations under the CERD to condemn publicly racial discrimination against Qataris, pursue a policy of eliminating racial discrimination, and adopt measures to combat such prejudice;
(d) Refrain from taking any further measures that would discriminate against Qataris within its jurisdiction or control;
(e) Restore rights of Qataris to, inter alia, marriage and choice of spouse, freedom of opinion and expression, public health and medical care, education and training, property, work, participation in cultural activities, and equal treatment before tribunals, and put in place measures to ensure those rights are respected;
(f) Provide assurances and guarantees of non-repetition of the UAE's illegal conduct; and
(g) Make full reparation, including compensation, for the harm suffered as a result of the UAE's actions in violation of the CERD."
In the written proceedings on the merits, the following submissions were presented on behalf of the Government of Qatar in its Memorial:
"On the basis of the facts and legal arguments presented in this Memorial, Qatar, in its own right and as parens patriae of its citizens, respectfully requests the Court:
1. To adjudge and declare that the UAE, by the acts and omissions of its organs, agents, persons, and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control, is responsible for violations of the CERD, namely Articles 2 (1), 4, 5, 6 and 7, including by:
(a) expelling, on a collective basis, all Qataris from the UAE;
(b) applying the Absolute Ban and Modified Travel Ban in violation of fundamental rights that must be guaranteed equally to all under the CERD, regardless of national origin, including the rights to family, freedom of opinion and expression, education and training, property, work, and equal treatment before tribunals;
(c) engaging in, sponsoring, supporting, and otherwise encouraging racial discrimination, including racially discriminatory incitement against Qataris, most importantly by criminalizing 'sympathy' with Qatar and orchestrating, funding, and actively promoting a campaign of hatred against Qatar and Qataris, and thereby failing to nullify laws and regulations that have the effect of creating or perpetuating racial discrimination, to take 'all appropriate' measures to combat the spread of prejudice and negative stereotypes, and to promote tolerance, understanding and friendship; and
(d) failing to provide access to effective protection and remedies to Qataris to seek redress against acts of racial discrimination under the CERD through UAE tribunals or institutions, including the right to seek reparation;
2. To adjudge and declare that the UAE has violated the Court's Order on Provisional Measures of 23 July 2018;
3. And further to adjudge and declare that the UAE is obligated to cease its ongoing violations, make full reparation for all material and moral damage caused by its internationally wrongful acts and omissions under the CERD, and offer assurances and guarantees of non-repetition.
4. Accordingly, the Court is respectfully requested to order that the UAE:
(b) provide full reparation for the harm caused by its actions, including (i) restitution by lifting the ongoing Modified Travel Ban as it applies to Qataris collectively based on their national origin; (ii) financial compensation for the material and moral damage suffered by Qatar and Qataris, in an amount to be quantified in a separate phase of these proceedings; and (iii) satisfaction in the forms of a declaration of wrongfulness and an apology to Qatar and the Qatari people, as requested in Chapter VII; and
(c) provide Qatar with assurances and guarantees of non-repetition in written form as requested in Chapter VII."
"239. On the basis of each of the three independent preliminary objections explained above, the United Arab Emirates respectfully requests the Court to adjudge and declare that the Court lacks jurisdiction over Qatar's Application of 11 June 2018 and that the Application is inadmissible.
240. The United Arab Emirates reserves the right to amend and supplement this submission in accordance with the provisions of the Statute and the Rules of Court. The United Arab Emirates also reserves the right to submit further objections to the jurisdiction of the Court and to the admissibility of Qatar's claims if the case were to proceed to any subsequent phase."
"For the reasons described above, Qatar respectfully requests that the Court:
1. Reject the Preliminary Objections presented by the UAE;
2. Hold that it has jurisdiction to hear the claims presented by Qatar as set out in the Memorial, and that these claims are admissible; and
3. Proceed to hear those claims on the merits."
On behalf of the Government of the UAE,
at the hearing of 4 September 2020:
"The United Arab Emirates respectfully requests the Court to adjudge and declare that the Court lacks jurisdiction to address the claims brought by the State of Qatar by its Application dated 11 June 2018."
On behalf of the Government of Qatar,
at the hearing of 7 September 2020:
"In accordance with Article 60 of the Rules of Court, for the reasons explained in our Written Statement of 30 August 2019 and during these hearings, Qatar respectfully asks the Court to:
(a) Reject the Preliminary Objections presented by the UAE;
(b) Hold that it has jurisdiction to hear the claims presented by Qatar as set out in its Application and Memorial; and
(c) Proceed to hear those claims on the merits;
(d) Or, in the alternative, reject the Second Preliminary Objection presented by the UAE and hold, in accordance with the provisions of Article 79ter, paragraph 4, of the Rules of Court, that the First Preliminary Objection submitted by the UAE does not possess an exclusively preliminary character."
"based on the insistence of the State of Qatar to continue to undermine the security and stability of the region and its failure to honour international commitments and agreements, it has been decided to take the following measures that are necessary for safeguarding the interests of the [Gulf Cooperation Council] States in general and those of the brotherly Qatari people in particular:
2. Preventing Qatari nationals from entering the UAE or crossing its point of entry, giving Qatari residents and visitors in the UAE 14 days to leave the country for precautionary security reasons. The UAE nationals are likewise banned from traveling to or staying in Qatar or transiting through its territories."
The Gulf Cooperation Council (hereinafter the "GCC") is an intergovernmental political and economic union of which Qatar and the UAE were founding members in 1981, along with the Kingdom of Bahrain, the State of Kuwait, the Sultanate of Oman and the Kingdom of Saudi Arabia.
"The UAE is taking these decisive measures as a result of the Qatari authorities' failure to abide by the Riyadh Agreement on returning GCC diplomats to Doha and its Complementary Arrangement in 2014, and Qatar's continued support, funding and hosting of terror groups, primarily Islamic Brotherhood, and its sustained endeavours to promote the ideologies of Daesh and Al Qaeda across its direct and indirect media in addition to Qatar's violation of the statement issued at the US-Islamic Summit in Riyadh on May 21st, 2017 on countering terrorism in the region and considering Iran a state sponsor of terrorism. The UAE measures are taken as well based on Qatari authorities' hosting of terrorist elements and meddling in the affairs of other countries as well as their support of terror groups — policies which are likely to push the region into a stage of unpredictable consequences."
"Qatari citizens already resident in the UAE need not apply for permission to continue residence in the UAE. However, all Qatari citizens resident in the UAE are encouraged to obtain prior permission for re-entry into UAE territory. All applications for entry clearance may be made through the telephone hotline announced on June 11, 2017."
"64. In respect of the inter-state communication submitted on 8 March 2018 by Qatar against the United Arab Emirates, the Committee rejects the exceptions raised by the Respondent State concerning the admissibility of the inter-state communication.
65. The Committee requests its Chairperson to appoint, in accordance with article 12 (1) of the Convention, the members of an ad hoc Conciliation Commission, which shall make its good offices available to the States concerned with a view to an amicable solution of the matter on the basis of the States parties' compliance with the Convention." (Decision on the admissibility of the inter-State communication submitted by Qatar against the UAE dated 27 August 2019, United Nations, doc. CERD/C/99/4, paras. 64-65.)
Qatar asserts that the Court has jurisdiction over its Application pursuant to Article 22 of CERD, which provides:
"Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement."
At the present stage of these proceedings, the UAE asks the Court to adjudge and declare that the Court lacks jurisdiction to address the claims brought by Qatar on the basis of two preliminary objections. In its first preliminary objection, the UAE maintains that the Court lacks jurisdiction ratione materiae over the dispute between the Parties because the alleged acts do not fall within the scope of CERD. In its second preliminary objection, the UAE asserts that Qatar failed to satisfy the procedural preconditions of Article 22 of CERD.
Pursuant to Article 40, paragraph 1, of the Statute and Article 38, paragraph 1, of the Rules of Court, an applicant is required to indicate the subject of a dispute in its application. The Rules of Court also require that an application "specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based" (Article 38, paragraph 2, of the Rules of Court). A Memorial "shall contain a statement of the relevant facts, a statement of law, and the submissions" (Article 49, paragraph 1, of the Rules of Court).
Qatar states that the measures it describes as the "expulsion order" and the "travel bans", by their express reference to Qatari nationals, discriminate against Qataris on the basis of their current nationality. It points out that the definition of "racial discrimination" contained in Article 1, paragraph 1, of CERD includes discrimination on the basis of national origin. Qatar maintains that "nationality" is encompassed within the phrase "national origin".
The Court observes that, as far as the first claim of Qatar is concerned, the Parties disagree on whether the term "national origin" in Article 1, paragraph 1, of the Convention encompasses current nationality. In respect of the second claim of Qatar, the Parties disagree on whether the scope of the Convention extends to Qatari media corporations. Finally, in respect of the third claim, the Parties disagree on whether the measures of which Qatar complains give rise to "indirect discrimination" against Qataris on the basis of their national origin. The Court will examine each of these questions with a view to ascertaining whether it has jurisdiction ratione materiae in the present case.
Qatar is of the view that the term "national origin", in the definition of racial discrimination in Article 1, paragraph 1, of the Convention, encompasses current nationality and that the measures of which Qatar complains thus fall within the scope of CERD. The UAE argues that the term "national origin" does not include current nationality and that the Convention does not prohibit differentiation based on the current nationality of Qatari citizens, as complained of by Qatar in this case. Thus, the Parties hold opposing views on the meaning and scope of the term "national origin" in Article 1, paragraph 1, of the Convention, which reads:
"In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."
In order to determine its jurisdiction ratione materiae in this case, the Court will interpret CERD and specifically the term "national origin" in Article 1, paragraph 1, thereof by applying the rules on treaty interpretation enshrined in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (hereinafter the "Vienna Convention"). Although that Convention is not in force between the Parties and is not, in any event, applicable to treaties concluded before it entered into force, such as CERD, it is well established that Articles 31 and 32 of the Vienna Convention reflect rules of customary international law (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 598, para. 106; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), pp. 320-321, para. 91; Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 116, para. 33).
The Court will interpret the term "national origin" by reference, first, to the elements set out in Article 31 of the Vienna Convention, which states the general rule of treaty interpretation. Only then will the Court turn to the supplementary means of interpretation provided for in Article 32 in order to confirm the meaning resulting from that process, or to remove ambiguity or obscurity, or to avoid a manifestly absurd or unreasonable result (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), p. 321, para. 91; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 109-110, para. 160).
The Court recalls that Article 31, paragraph 1, of the Vienna Convention provides that "[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". The Court's interpretation must take account of all these elements considered as a whole (Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment, I.C.J. Reports 2017, p. 29, para. 64).
According to the UAE, the ordinary meaning of the term "national origin" does not encompass current nationality, because the latter concept refers to a legal relationship with a State in the sense of citizenship, whereas national origin denotes "an association with a nation of people, not a State". In the Respondent's view, the five authentic texts of "the Convention confirm that the drafters drew a distinction between the term "national origin", as used in Article 1, paragraph 1, and Article 5 of the Convention, and "nationality", as used in Article 1, paragraph 3, of the Convention. In its view, the definition of racial discrimination in the Convention refers only to characteristics that are inherent and immutable, namely race, colour, descent, or national or ethnic origin. Nationality, on the other hand, is a legal bond that can change over time. Lastly, the Respondent considers that the Convention's title and Preamble confirm that it does not prohibit differentiation on the basis of an individual's current nationality, since it concerns racial discrimination. According to the Respondent, the Preamble reaffirms the overall aim of bringing racial discrimination to an end and makes no mention of discrimination based on current nationality. It thus argues that the term "national origin" as used in Article 1, paragraph 1, of CERD is "an individual's permanent association with a particular nation of people" and does not include nationality in the sense of citizenship.
In Qatar's view, discrimination based on a person's current nationality falls within the prohibition of racial discrimination provided for in Article 1, paragraph 1, of the Convention. According to the Applicant, the term "national origin" refers to a person belonging to a nation by birth, or to the country from which he or she originates, as well as a person's current nationality or national affiliation. It contends that this term, as reproduced in the different languages of the Convention, does not refer only to the immutable characteristics of a person. Qatar further contends that paragraphs 2 and 3 of Article 1, which exclude from the scope of the Convention any differentiation between citizens and non-citizens and at the same time prohibit discrimination against any particular nationality, would be deprived of any effet utile if current nationality were not covered by the term "national origin". Relying on the Preamble, the Applicant argues that it was the drafters' intention that the Convention would not remain static but would form a comprehensive network of protections which would apply to racial discrimination, however it manifests, across different countries, contexts and time periods. According to the Applicant, excluding current nationality from the definition of racial discrimination would permit States to put in place any discriminatory policy targeting individuals or groups with the characteristics expressly mentioned in Article 1, paragraph 1, of the Convention. The adoption of such policies could be justified officially by sole reference to current nationality rather than to the characteristics in question. The Applicant thus concludes that the exclusion of nationality-based discrimination from the scope of the Convention would lead to absurd results wholly at odds with its purpose.
The Court will next turn to the context in which the term "national origin" is used in the Convention, in particular paragraphs 2 and 3 of Article 1, which provide that:
"2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.
3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality."
It is recalled in the Preamble of CERD that
"the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end".
Consequently, the term "national origin" in Article 1, paragraph 1, of CERD, in accordance with its ordinary meaning, read in its context and in the light of the object and purpose of the Convention, does not encompass current nationality.
Qatar, for its part, asserts that the drafters of the Convention sought a broad and comprehensive definition of racial discrimination, which would leave no vulnerable group without protection, and they did not intend to exclude nationality-based discrimination from its scope. According to the Applicant, the fact that the proposed amendments seeking to exclude nationality from the scope of the term "national origin" in the definition of racial discrimination were not adopted confirms that this term encompasses current nationality. As regards the joint amendment of the United States of America and France, which was withdrawn in favour of the current wording of Article 1, Qatar considers that it was in any event limited in scope, since it sought to prevent non-citizens from availing themselves of certain rights reserved for citizens and in no way sought to exclude differentiation based on current nationality from the scope of the Convention. Thus, in Qatar's view, the travaux préparatoires confirm that the scope of the Convention extends to discrimination based on current nationality, in particular where, as in the present case, a State singles out an entire group of non-citizens for discriminatory treatment.
"In this Convention the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, national or ethnic origin (and in the case of States composed of different nationalities discrimination based on such difference) which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in political, economic, social, cultural or any other field of public life set forth inter alia in the Universal Declaration of Human Rights." ("Draft International Convention on the Elimination of All Forms of Racial Discrimination", annexed to the Report of the Sixteenth Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights, 13-31 Jan. 1964, UN doc. E/CN.4/873, E/CN.4/Sub.2/241, 11 Feb. 1964, p. 46.)
"In this Convention the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, [national] or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public [life]. [In this paragraph the expression 'national origin' does not cover the status of any person as a citizen of a given State.]" (Ibid., p. 111; see also United Nations, Commission on Human Rights, Twentieth Session, Summary Record of the 810th Meeting, held on 13 March 1964, doc. E/CN.4/SR.810, 15 May 1964, p. 5.)
With regard to the practice of the CERD Committee, the UAE argues that the Committee's opinions and general recommendations do not constitute subsequent practice or agreement of States parties to CERD regarding the interpretation of the Convention. In particular, the Respondent considers that General Recommendation XXX concerning discrimination against non-citizens, adopted by the CERD Committee in 2004, does not constitute an interpretation based on the practice of States parties and that, in any event, it is not intended as a general prohibition of all differential treatment based on nationality. The Respondent further considers that, according to that text, any differential treatment between different groups of non-citizens must be assessed "in the light of the objectives and purposes of the Convention". Finally, as regards the decisions on jurisdiction and admissibility delivered by the CERD Committee in respect of the communication submitted by Qatar, the Respondent contends that these decisions are in no way binding on the Court and their reasoning with regard to the interpretation of the term "national origin" is insufficient. It adds that these decisions, whereby the Committee held that measures based on the current nationality of Qatari citizens fell within the scope of the Convention, are based on a single criterion, i.e. the Committee's "constant practice", which is inconsistent with the rules of treaty interpretation as reflected in Articles 31 and 32 of the Vienna Convention.
For the present purposes, the Court will examine only whether the measures concerning certain Qatari media corporations, which according to Qatar have been imposed in a racially discriminatory manner, fall within the scope of the Convention. As to the alleged "indirect discrimination" resulting from the effect of the media block on persons of Qatari national origin, the Court will examine that aspect in its analysis of Qatar's third claim. The Court notes that the Convention concerns only individuals or groups of individuals. This is clear from the various substantive provisions of CERD, which refer to "certain racial or ethnic groups or individuals" (Article 1, paragraph 4), "race or group of persons" (Article 4 (a)), or "individuals or groups of individuals" (Article 14, paragraph 1), as well as its Preamble which refers to racial "discrimination between human beings". While under Article 2, paragraph 1 (a), of the Convention, "[e]ach State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions", the Court considers that this reference to "institutions" does not include media corporations such as those in the present case. Read in its context and in the light of the object and purpose of the Convention, the term "institutions" refers to collective bodies or associations, which represent individuals or groups of individuals. Thus, the Court concludes that Qatar's second claim relating to Qatari media corporations does not fall within the scope of the Convention.
The Court recalls that it has already found that the "expulsion order" and "travel bans" of which Qatar complains as part of its first claim do not fall within the scope of CERD, since these measures are based on the current nationality of Qatari citizens, and that such differentiation is not covered by the term "national origin" in Article 1, paragraph 1, of the Convention (see paragraph 105 above). The Court will now turn to the question whether these and any other measures as alleged by Qatar are capable of falling within the scope of the Convention, if, by their purpose or effect, they result in racial discrimination against certain persons on the basis of their Qatari national origin.
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