(a) requirement that all Qatari residents and visitors leave the UAE in fourteen days, as well as a ban on Qatari nationals from entering the UAE. This was subsequently modified to a requirement of permission for entry of Qatari nationals into the UAE;
(b) closure of land borders, airspace and seaports of the UAE to all Qatari nationals and Qatari means of transportation; and
(c) suppression of Qatari media outlets and speech deemed to support Qatar, and the enactment of measures "perpetuating, condoning, and encouraging anti-Qatari hate propaganda"2.
(a) the first is the claim by Qatar that the "travel bans" and "expulsion order" by their express reference to Qatari nationals and Qatari residents and visitors discriminate against Qataris on the basis of their national origin;
(b) the second is the claim by Qatar arising out of the restrictions on Qatari media corporations; and
(c) the third is the claim by Qatar that, through these measures, the UAE has engaged in "indirect discrimination" against persons of Qatari national origin.
The jurisdiction of the Court in the present case is based on Article 22 of CERD. As per the test for jurisdiction ratione materiae laid down by the Court in its previous cases, the Court needs to determine whether it can be established that the "alleged violations... are capable of falling within the provisions of the [CERD] and whether, as a consequence... the dispute is one which the Court has jurisdiction to entertain"4. In order to invoke the Court's jurisdiction under Article 22 of CERD, the discriminatory measures allegedly promulgated by the UAE must fall within one of the prohibited categories of "racial discrimination", as defined under Article 1, paragraph 1, of CERD, which provides:
"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."
The customary international law on the rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties (hereinafter the "VCLT") is applicable to the interpretation of the terms of CERD. Article 31, paragraph 1, of the VCLT stipulates 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"7.
The majority takes the following position regarding the ordinary meaning of the term "national origin" in paragraph 81 of the Judgment:
"the definition of racial discrimination in the Convention includes 'national or ethnic origin'. These references to 'origin' denote, respectively, a person's bond to a national or ethnic group at birth, whereas nationality is a legal attribute which is within the discretionary power of the State and can change during a person's lifetime. The Court notes that the other elements of the definition of racial discrimination, as set out in Article 1, paragraph 1, of the Convention, namely race, colour and descent, are also characteristics that are inherent at birth."
The term "national origin" presents an amalgamation of the words "national" and "origin". The ordinary meaning attributable to these two words, read conjunctively, would have led to a more harmonious interpretation of its meaning as Article 31, paragraph 1, of the VCLT stipulates. When the ordinary meaning of the words "national" and "origin" are analysed to determine the meaning of the term "national origin", it is evident that the term is capable of being construed in both of the ways argued by the Parties. It can either carry the meaning attributed to it by Qatar, that is of nationality and of "relat[ing] to the country or nation where a person is from"8, or that argued by the UAE, that is of an "association with a nation of people, not a State", which is distinct from nationality9. As a general proposition, in my view, the definitions of the two words indicate that "national origin" refers to a person's belonging to a country or nation. Belonging in this sense may be long standing or historical, and defined by ancestry or descent, or it may be confirmed by the legal status of nationality or national affiliation. Thus, current nationality, even if considered in a purely legal sense to be within the discretion of the State and subject to change over a person's lifetime, is in any event encompassed within the broader term "national origin". Since there is no doubt that these terms coincide, it is difficult to simply distinguish one from the other solely on the basis relied upon in paragraph 81 of the Judgment.
The ordinary meaning of a term in a treaty is to be determined in light of its context and not in the abstract11. Under Article 31, paragraph 2, of the VCLT, the context for interpretation purposes includes, the text of the treaty, its preamble and annexes. In its contextual reading of the term "national origin", in light of the object and purpose of CERD, in paragraph 83 of the Judgment, the Court begins its reasoning by acknowledging that any legislation concerning nationality, citizenship or naturalization by States parties would not be affected by the provisions of CERD provided that they do not discriminate against any particular nationality (Article 1, paragraph 3, of CERD). However, in its conclusion on this point, the Judgment seems to rely solely on the broader terminology found in Article 1, paragraph 2, of CERD which expressly excludes "from the scope of the Convention... differentiation between citizens and non-citizens". Consequently, to the exclusion of the prohibition of discrimination "against any particular nationality" in Article 1, paragraph 3, of CERD, the Judgment concludes that
"such express exclusion from the scope of the Convention of differentiation between citizens and non-citizens indicates that the Convention does not prevent States parties from adopting measures that restrict the right of non-citizens to enter a State and their right to reside there ⎯ rights that are in dispute in this case ⎯ on the basis of their current nationality".
When interpretation under Article 31 of the VCLT leaves the meaning ambiguous or obscure, or leads to manifestly absurd or unreasonable results, Article 32 of the VCLT provides that "[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion". The Judgment, in paragraph 96, in reference to the amendment submitted by France and the United States of America and the subsequent withdrawal of the amendment, states that this
"was done in order to arrive at a compromise formula that would enable the text of the Convention to be finalized, by adding paragraphs 2 and 3 to Article 1... As the Court has noted... paragraphs 2 and 3 of Article 1 provide that the Convention will not apply to differentiation between citizens and non-citizens and will not affect States' legislation on nationality, thus fully addressing the concerns expressed by certain delegations, including those of the United States of America and France, regarding the scope of the term 'national origin'".
The CERD Committee's primary function is to analyse and comment on reports submitted to it by States parties pursuant to Article 9, paragraph 1, of CERD. In reporting under Article 9, paragraph 1, of CERD, each State party undertakes to submit a report on the legislative, judicial, administrative or other measures which it has adopted in relation to its obligations under CERD. Each dialogue with a State party is followed by a set of concluding observations by the Committee which may contain statements of concern and recommendations for further action. This framework allows the CERD Committee to establish certain rules in dialogue, which include the establishment of the CERD's rules of procedure, and the translation of general principles and rights enshrined in the Convention into rules applicable to problems faced in implementation. Under Article 14 of CERD, once a State declares that it recognizes the competence of the CERD Committee, it may receive and consider communications from individuals or groups of individuals within the jurisdiction of that State claiming to be victims of a violation by that State of rights set forth in the Convention. The State is thereby obliged to revise its law or practice in light of the Committee's findings. Through this framework of consistent dialogue with States, the CERD Committee is engaged in the development of consistent interpretations of CERD. Moreover, in the performance of its tasks, the CERD Committee has sought to act judicially since its very first meeting in 197017. Furthermore, as per Article 8, paragraph 1, of CERD, the CERD Committee comprises of 18 experts, who are individuals of "high moral standing and acknowledged impartiality" and "who shall serve in their personal capacity". These individuals fall into the category of the "most highly qualified publicists" in this field. General Recommendation XXX, paragraph 4, of the CERD Committee therefore offers a consistent interpretation of CERD by the most highly qualified publicists because of which it should have been ascribed great weight in the Court's Judgment.
The Judgment further insufficiently addresses the jurisprudence of the Court which indicates the Court's willingness to take into account the work of United Nations supervisory bodies of human rights treaties in its judgments in the past. While reference to external precedents is not a common feature of the Court's case law, there is evidence of a change18. The clearest endorsement of such a supervisory body in the jurisprudence of the Court is contained in its 2010 merits Judgment in Diallo, p. 692, para. 165, subparas. 2 and 3. In Diallo, while finding that the Democratic Republic of the Congo had violated provisions of the International Covenant on Civil and Political Rights, 1966 (hereinafter the "ICCPR") and the African Charter on Human and Peoples' Rights, 1981 (hereinafter the "ACHPR"), the Court specifically pointed out that its interpretation of the provisions of the ICCPR and the ACHPR was "fully corroborated by the jurisprudence of the Human Rights Committee established by the [ICCPR] to ensure compliance with that instrument by the States parties"19. Subsequently, in the same Judgment, the Court noted that,
"[a]lthough the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty"20.
I will proceed to make some observations on the relevance of General Recommendation XXX, paragraph 4, to the claims made by Qatar and the Court's jurisdiction ratione materiae under Article 22 of CERD.
The CERD Committee adopted General Recommendation XXX on 1 October 2002. General Recommendation XXX, paragraph 4, provides that differential treatment will "constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim". Therefore, even if nationality-based discrimination were to be interpreted as falling within the meaning of "national origin", the beneficial treatment of some categories of non-nationals by a State would not necessarily violate Article 1, paragraph 1, of CERD, provided these beneficial rights were granted to some nationalities pursuant to the legitimate aim of regional integration or friendly relations and were proportionate to the achievement of that aim. Such differential treatment would be unlikely to fall afoul of the restriction against nationality-based discrimination. To interpret "national origin" so that it entirely excludes nationality-based discrimination would, on the other hand, lead to incongruent results.
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