I disagree with the finding in paragraph 115 of the Judgment upholding the first preliminary objection of the United Arab Emirates ("UAE") and the finding that the Court has no jurisdiction to entertain the Application filed by Qatar.
In paragraph 56 of the Judgment the Court refers to Qatar's characterization of the dispute as follows:
"[t]he first is its claim arising out of the 'travel bans' and 'expulsion order', which make express reference to Qatari nationals. The second is its claim arising from the restrictions on Qatari media corporations. Qatar's third claim is that the measures taken by the UAE, including the measures on which Qatar bases its first and second claims, result in 'indirect discrimination' on the basis of Qatari national origin."
"1. 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.
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".
The dispute between the Parties concerns the question whether the term "national origin" in the definition of racial discrimination in Article 1 (1) of CERD excludes or encompasses differences of treatment based on nationality. Qatar is correct in its argument that the term "national origin" encompasses differences of treatment based on nationality.
As far as context is concerned, the exceptional régime in Article 1 (2) providing for distinctions between citizens and non-citizens is only intelligible on the basis that the definition of racial discrimination in Article 1 (1) also covers such distinctions; if those distinctions were not part of the definition that includes discrimination on the basis of national origin, there would be no need to provide for the exception in this paragraph. There is no merit in the UAE's submission that the paragraph was inserted "for the avoidance of doubt"; the drafters inserted the paragraph because they considered it necessary, since nationality was encompassed by national origin. Article 1 (2) therefore must be seen as carving out from Article 1 (1) an exceptional régime relating to distinctions that a Contracting Party may make between citizens and non-citizens; in effect, Article 1 (2) allows States parties to derogate from the prohibition of discrimination in Article 1 (1) by measures that distinguish between citizens and non-citizens. While Article 1 (3) allows States to adopt legal provisions that distinguish between nationals and non-nationals, importantly it requires that those provisions must not discriminate against a particular nationality. In that regard, it is noteworthy that Qatar alleges that the UAE's measures discriminate against persons of the specific nationality of Qatar. As far as the aim of the Convention is concerned, its Preamble and operative provisions make clear that its purpose is to eliminate racial discrimination in all its forms, an objective that would not be achieved if States were left entirely free to discriminate between citizens and non-citizens. Interpreting "national origin" in the Convention as encompassing nationality is therefore consistent with the Convention's object and purpose. Consequently, the ordinary meaning of the term "national origin" when read in its context and in light of the Convention's object and purpose encompasses differences of treatment based on nationality.
"[t]he definition of 'racial discrimination' in Article 1 of CERD does not require that the restriction in question be based expressly on racial or other grounds enumerated in the definition; it is enough that it directly implicates such a group on one or more of these grounds"5.
Qatar relies on this analysis by Judge Crawford in order to distinguish between a restrictive measure that is based expressly on one of the protected grounds (direct discrimination) and one that, although not based expressly on one of those grounds, nonetheless directly implicates a group on one of the protected grounds. Translated to the circumstances of this case, Qatar's submission is that although the UAE's measures do not on their face refer to persons of Qatari national origin, as a matter of fact by their effect they directly implicate persons of Qatari national origin. Qatar describes this as indirect discrimination. Although Qatar has framed this part of its case as one of indirect discrimination, in my view, since labels such as "indirect discrimination" are very often misleading, it is better to concentrate on the essence of Qatar's claim.
"(i) As a general matter, Qatar argues that the measures target and discriminate against 'Qataris' as a historical-cultural community and not merely as holders of a Qatari passport. In this regard, Qatar cites the statement of a person, not a Qatari national who had lived in Qatar for over 60 years and who was denied entry into the UAE because, as he stated, 'the immigration officer saw me as Qatari because of the way I was dressed'; on the other hand, his travel companions who were not wearing traditional Qatari dress were allowed to enter. That person stresses that prior to the measures he had travelled to and from the UAE on many occasions without experiencing any problem at the border.
(ii) Another person who identifies completely as Qatari, but is not a Qatari citizen relates that he was subjected to interrogation by the UAE's officials merely because his passport showed that he was born in Qatar."
There is merit in Qatar's argument that the treatment to which these persons were subjected at the border on the basis of their national origin resulted from the travel ban which targeted Qataris. Consequently, the obligation under the Convention not to discriminate against persons on the basis of their national origin was engaged and the treatment falls within the provisions of the Convention.
Despite these clear examples of how the measures discriminate by their effect on persons of Qatari national origin, the majority concluded that they do not constitute racial discrimination within the meaning of the Convention. In paragraph 112 of the Judgment the majority makes a statement of questionable validity. It states that
"[i]n the present case, while the measures based on current Qatari nationality may have collateral or secondary effects on persons born in Qatar or of Qatari parents, or on family members of Qatari citizens residing in the UAE, this does not constitute racial discrimination within the meaning of the Convention".
This finding is questionable because in this part of its case Qatar is not complaining about the measures that are based on current Qatari nationality. As the majority itself noted in paragraph 60 of the Judgment: in setting out Qatar's complaint, Qatar's case in relation to what it describes as indirect discrimination is independent of its complaint about the measures on the basis of nationality; Qatar has made it clear that this part of its case is based on national origin, which is one of the protected grounds in the definition of racial discrimination. The second comment that may be made on this finding relates to the regrettable reference to the "collateral or secondary effects" of the measures. The finding is regrettable because it suggests that what Qatar describes as indirect discrimination is equivalent to what the majority describes as the collateral or secondary effects of the measures. As noted before, the essence of Qatar's third claim is that these measures directly implicate Qataris on the basis of their national origin. There is nothing collateral or secondary about the impact of the measures on Qataris on the basis of their national origin. Moreover, in this statement the majority seems to be referring to the collateral or secondary effects of the measures on persons of Qatari national origin; however, this is not at all clear from its reference to those effects on "persons born in Qatar or of Qatari parents, or on family members of Qatari citizens residing in the UAE", since that categorization of persons could also refer to persons of Qatari nationality.
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