I have not voted with the majority in paragraph 115, as I disagree with the Court's conclusion in paragraphs 113 and 114 of the Judgment. In my respectful view, the first preliminary objection of the United Arab Emirates (hereinafter the "UAE") does not, in the circumstances of the present case, have an exclusively preliminary character and should be joined to the merits, pursuant to the provisions of Article 79 ter, paragraph 4, of the Rules of Court (as amended on 21 October 2019). That provision requires that: "After hearing the parties, the Court shall decide upon a preliminary question or uphold or reject a preliminary objection. The Court may however declare that, in the circumstances of the case, a question or objection does not possess an exclusively preliminary character." (Emphasis added.)
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 towards 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 institutions1.
(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 CERD2.
(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.
(a) Immediately cease its ongoing internationally wrongful acts and omissions in contravention of Articles 2 (1), 4, 5, 6 and 7 of the CERD;
(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; and
(c) Provide Qatar with assurances and guarantees of non-repetition in written form.
The UAE raised three preliminary objections against the jurisdiction of the Court and the admissibility of Qatar's claims, namely that:
(a) The dispute between the Parties falls outside the scope ratione materiae of the CERD since the measures of the UAE were directed at Qatari citizens on the basis of their "nationality" and not "national origin"3;
(b) Qatar has not fulfilled the procedural preconditions of negotiation and the Committee on the Elimination of Racial Discrimination (hereinafter the "CERD Committee") procedures prescribed in Articles 11 to 13 of the CERD before resorting to judicial settlement by the Court, as required by Article 22 of the CERD4; and
(c) Qatar's initiation of parallel proceedings before the Court in respect of the same dispute whilst the Article 11 procedure was pending before the CERD Committee renders Qatar's Application inadmissible5.
"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." (Emphasis added.)
(a) What is the subject-matter of the dispute between Qatar and the UAE?
(b) Does the dispute concern the interpretation or application of the CERD within the meaning of Article 22 of that Convention or do Qatar's claims actually fall outside the scope of the CERD by virtue of the exceptions contemplated in Article 1, paragraphs 2 or 3?
(c) If so, did Qatar comply with the procedural requirements stipulated in Article 22 of CERD or alternatively did the Parties agree to another mode of settling their dispute, before seising the Court?
(d) Lastly, are the claims of Qatar admissible?
I will briefly examine each of these in turn, starting with the first.
Article 40, paragraph 1, of the Statute of the Court, and Article 38, paragraph 1, of the Rules of Court require an applicant to indicate the "subject of the dispute" and to specify the "precise nature of the claim"6. Furthermore, it is for the Court itself to determine, on an objective basis, the subject-matter of the dispute, isolating the real issue in the case and identifying the object of the claim7. The Court does this by examining the dispute as formulated in the application, including the basis that the applicant identifies as the basis of jurisdiction, as well as the written and oral pleadings of the parties8.
In order to determine whether or not the dispute in the present case concerns the interpretation or application of the CERD, the Court must determine whether the acts complained of by Qatar (namely, the measures taken by the UAE on 5 June 2017 against Qataris living in the UAE) fall within the scope ratione materiae of Article 1, paragraph 1, of the CERD; or alternatively, whether those acts fall outside the scope of the CERD by virtue of the exceptions stipulated in Article 1 paragraphs 2 or 3, as argued by the UAE.
"27. In the Court's view, the acts referred to by Qatar, in particular the statement of 5 June 2017 ⎯ which allegedly targeted Qataris on the basis of their national origin ⎯ whereby the UAE announced that Qataris were to leave its territory within 14 days and that they would be prevented from entry, and the alleged restrictions that ensued, including upon their right to marriage and choice of spouse, to education as well as to medical care and to equal treatment before tribunals, are capable of falling within the scope of CERD ratione materiae. The Court considers that, while the Parties differ on the question whether the expression 'national... origin' mentioned in Article 1, paragraph 1, of CERD encompasses discrimination based on the 'present nationality' of the individual, the Court need not decide at this stage of the proceedings, in view of what is stated above, which of these diverging interpretations of the Convention is the correct one.
28. The Court finds that the above-mentioned elements are sufficient at this stage to establish the existence of a dispute between the Parties concerning the interpretation or application of CERD."12
At this stage, I see no reason for the Court to depart from its earlier position.
Article 1 (1) of the CERD defines "racial discrimination" to 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" (emphasis added).
Article 1 (2) of the CERD provides that the Convention:
"shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens".
Article 1 (3) of the CERD provides that:
"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."
In the present case, Qatar maintains that Qataris are a protected people of a distinct historical-cultural national origin and has submitted expert evidence to support this contention, which the UAE has not rebutted14. Qatar further maintains that the measures taken by the Respondent against its nationals "had the purpose and effect" of racial discrimination of Qatari nationals within the meaning of Article 1, paragraph 1, of the CERD. This evidence should, of course, be examined and verified on the merits, rather than at this jurisdictional stage of the proceedings. In my view, there is a thin line between "Qatari national origin" and "Qatari nationality or citizenship" and this line is particularly blurred by the circumstances of the case. As earlier stated, the question of whether or not the measures taken by the UAE against Qatar and Qataris on 5 June 2017 had "the purpose or effect of racial discrimination" within the meaning of Article 1, paragraph 1, of the CERD, is a delicate and complex one that can only be determined after a detailed examination of the evidence and arguments of the Parties during the merits stage. In the present Judgment, the majority simply carried out an academic discussion of the terms "current nationality" and "national origin" but has clearly not examined the detailed evidence adduced by the Applicant in support of its claim of "indirect discrimination" before reaching the conclusion in paragraphs 113 and 114 of the Judgment.
"on the basis of the evidence presented to it by the Parties,... the measures adopted by the UAE on 5 June 2017 appear to have targeted only Qataris and not other non-citizens residing in the UAE. Furthermore, the measures were directed to all Qataris residing in the UAE, regardless of individual circumstances. Therefore, it appears that some of the acts of which Qatar complains may constitute acts of racial discrimination as defined by the Convention. Consequently, the Court finds that at least some of the rights asserted by Qatar under Article 5 of CERD are plausible. This is the case, for example, with respect to the alleged racial discrimination in the enjoyment of rights such as the right to marriage and to choice of spouse, the right to education, as well as freedom of movement, and access to justice."15
Both Parties agree that the Court's jurisdiction pursuant to Article 22 of the CERD is limited to disputes "not settled by negotiation or by the procedures expressly provided for in [the] Convention". The Parties also agree that they have not agreed to "another mode of [dispute] settlement". It is settled jurisprudence in Ukraine v. Russia that the preconditions referred to in Article 22 are in the alternative and are not cumulative16. The Court in that case stated as follows:
"110. The Court therefore considers that 'negotiation' and the 'procedures expressly provided for in [the] Convention' are two means to achieve the same objective, namely to settle a dispute by agreement. Both negotiation and the CERD Committee procedure rest on the States parties' willingness to seek an agreed settlement of their dispute. It follows that should negotiation and the CERD Committee procedure be considered cumulative, States would have to try to negotiate an agreed solution to their dispute and, after negotiation has not been successful, take the matter before the CERD Committee for further negotiation, again in order to reach an agreed solution. The Court considers that the context of Article 22 of CERD does not support this interpretation. In the view of the Court, the context of Article 22 rather indicates that it would not be reasonable to require States parties which have already failed to reach an agreed settlement through negotiations to engage in an additional set of negotiations in accordance with the modalities set out in Articles 11 to 13 of CERD.
111. The Court considers that Article 22 of CERD must also be interpreted in light of the object and purpose of the Convention. Article 2, paragraph 1, of CERD provides that States parties to CERD undertake to eliminate racial discrimination 'without delay'. provide that States parties undertake to eradicate incitement to racial discrimination and to combat prejudices leading to racial discrimination by adopting 'immediate and positive measures' and 'immediate and effective measures' respectively. The preamble to CERD further emphasizes the States' resolve to adopt all measures for eliminating racial discrimination 'speedily'. The Court considers that these provisions show the States parties' aim to eradicate all forms of racial discrimination effectively and promptly. In the Court's view, the achievement of such aims could be rendered more difficult if the procedural preconditions under Article 22 were cumulative.
112. The Court notes that both Parties rely on the travaux préparatoires of CERD in support of their respective arguments concerning the alternative or cumulative character of the procedural preconditions under Article 22 of the Convention. Since the alternative character of the procedural preconditions is sufficiently clear from an interpretation of the ordinary meaning of the terms of Article 22 in their context, and in light of the object and purpose of the Convention, the Court is of the view that there is no need for it to examine the travaux préparatoires of CERD.
113. The Court concludes that Article 22 of CERD imposes alternative preconditions to the Court's jurisdiction. Since the dispute between the Parties was not referred to the CERD Committee, the Court will only examine whether the Parties attempted to negotiate a settlement to their dispute."
"37. The Court notes that it has not been challenged by the Parties that issues relating to the measures taken by the UAE in June 2017 have been raised by representatives of Qatar on several occasions in international fora, including at the United Nations, in the presence of representatives of the UAE. For example, during the thirty-seventh session of the United Nations Human Rights Council in February 2018, the Minister for Foreign Affairs of Qatar referred to 'the violations of human rights caused by the unjust blockade and the unilateral coercive measures imposed on [his] country that have been confirmed by the... report of the Office of the United Nations High Commissioner for Human Rights Technical Mission', while the UAE ⎯ along with Bahrain, Saudi Arabia and Egypt ⎯ issued a joint statement 'in response to [the] remarks' made by the Minister for Foreign Affairs of Qatar.
38. The Court further notes that, in a letter dated 25 April 2018 and addressed to the Minister of State for Foreign Affairs of the UAE, the Minister of State for Foreign Affairs of Qatar referred to the alleged violations of CERD arising from the measures taken by the UAE beginning on 5 June 2017 and stated that 'it [was] necessary to enter into negotiations in order to resolve these violations and the effects thereof within no more than two weeks'. The Court considers that the letter contained an offer by Qatar to negotiate with the UAE with regard to the latter's compliance with its substantive obligations under CERD. In light of the foregoing, and given the fact that the UAE did not respond to that formal invitation to negotiate, the Court is of the view that the issues raised in the present case had not been resolved by negotiations at the time of the filing of the Application."18
"39.... It is recalled that, according to Article 11 of the Convention, '[if] a State Party considers that another State Party is not giving effect to the provisions of this Convention', the matter may be brought to the attention of the CERD Committee. The Court notes that Qatar deposited, on 8 March 2018, a communication with the CERD Committee under Article 11 of the Convention. It observes, however, that Qatar does not rely on this communication for the purposes of showing prima facie jurisdiction in the present case. Although the Parties disagree as to whether negotiations and recourse to the procedures referred to in Article 22 of CERD constitute alternative or cumulative preconditions to be fulfilled before the seisin of the Court, the Court is of the view that it need not make a pronouncement on the issue at this stage of the proceedings (see 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, pp. 125-126, para. 60). Nor does it consider it necessary, for the present purposes, to decide whether any electa una via principle or lis pendens exception are applicable in the present situation.
40. The Court thus finds, in view of all the foregoing, that the procedural preconditions under Article 22 of CERD for its seisin appear, at this stage, to have been complied with."22 (Emphasis added.)
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