The Court finds that the term "national origin" in Article 1, paragraph 1, of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter "CERD" or the "Convention") does not encompass current nationality (Judgment, paragraph 105). The Court also examines whether the measures taken by the UAE discriminate indirectly against Qataris on the basis of their "national origin", and holds that "even if the measures of which Qatar complains in support of its 'indirect discrimination' claim were to be proven on the facts, they are not capable of constituting racial discrimination within the meaning of the Convention" (paragraph 112). Accordingly, the Court concludes that the first preliminary objection raised by the UAE, that the dispute falls outside the scope ratione materiae of CERD, must be upheld (paragraph 114).
I agree that the term "national origin" in Article 1, paragraph 1, of CERD does not encompass current nationality. However, I do not agree with the Court's analysis and its conclusion regarding Qatar's claim of indirect discrimination. The UAE's objection, inasmuch as it relates to Qatar's claim of indirect discrimination, raises issues that require a detailed examination by the Court at the merits stage. The Court therefore should have declared that the first preliminary objection of the UAE does not possess an exclusively preliminary character.
In 1945, this situation changed dramatically with the adoption of the Charter of the United Nations. The Charter was revolutionary in that it not only included the promotion and encouragement of respect for human rights as one of the purposes of the Organization, but also declared that human rights were guaranteed for "all without distinction" (Art. 1, para. 3, and Art. 55 (c)). The adoption of the Charter marked the beginning of a process of continual expansion of international human rights law.
In 1966, the General Assembly adopted the International Covenant on Economic, Social and Cultural Rights (hereinafter the "ICESCR") and the International Covenant on Civil and Political Rights (hereinafter the "ICCPR"). The ICCPR provides in Article 2, paragraph 1, that
"[e]ach State Party... undertakes to respect and to ensure to all individuals... the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (emphasis added).
Article 26 of the ICCPR, a self-standing non-discrimination clause, contains comparable language. As with the UDHR, it may be concluded that, in principle, non-citizens are entitled to the human rights provided for in the ICCPR, and that the States parties are prohibited from discriminating on the basis of nationality.
"Although some of [the rights listed in Article 5 of CERD], such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law."12
The present dispute has been brought to the Court pursuant to Article 22 of CERD. According to this clause, the Court's jurisdiction is limited to disputes "with respect to the interpretation or application of this Convention". In order to determine whether the present dispute is one with respect to the interpretation or application of CERD, the Court needs to examine whether Qatar's claims fall within the scope of CERD (Judgment, paragraph 72). For Qatar's claims to fall within the scope of CERD, the measures of which it complains must be capable of constituting "racial discrimination" within the meaning of CERD. Accordingly, whether the measures at issue are capable of constituting racial discrimination under CERD is critically important in the present case. If they are not, the Court has no jurisdiction, irrespective of whether the same measures could constitute discrimination based on nationality under other rules of international law.
"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."
As noted by the Court, it is not disputed that the "expulsion order" and the "travel bans", as well as the "measures to restrict broadcasting and internet programming by certain Qatari media corporations", constitute differential treatment (). It is, however, disputed whether these measures are "based on" one of the grounds listed in Article 1, paragraph 1, of CERD and are thus capable of constituting racial discrimination.
As noted in the Judgment, the Court has taken into account in its jurisprudence the practice of bodies and courts established by international and regional human rights conventions, in so far as it is relevant for the purposes of interpretation (Judgment, paragraph 77). In the present case, however, the Court considers the jurisprudence of regional human rights courts to be "of little help for the interpretation of the term 'national origin' in CERD", because the purpose of the regional instruments "is to ensure a wide scope of protection of human rights and fundamental freedoms" (paragraph 104). CERD prohibits racial discrimination and certainly differs from general human rights conventions, which prohibit many kinds of discrimination. Nevertheless, the general prohibition of discrimination includes the prohibition of racial discrimination and the other human rights conventions also list "national origin" among the prohibited grounds of discrimination. Therefore, the practice of bodies and courts established by international and regional human rights conventions is relevant to the interpretation of Article 1 of CERD.
In accordance with Article 22 of CERD, the Court has jurisdiction only if the challenged measures are capable of constituting "racial discrimination" within the meaning of CERD. The next section turns to examine whether differential treatment based on nationality, although it does not per se constitute racial discrimination under CERD, can nonetheless have the purpose or effect of discrimination on the basis of one of the prohibited grounds listed in Article 1, paragraph 1, of CERD and thus constitute racial discrimination indirectly.
With regard to Qatar's claim of indirect discrimination, the majority of the Court considers that "even if the measures of which Qatar complains in support of its 'indirect discrimination' claim were to be proven on the facts, they are not capable of constituting racial discrimination" (Judgment, paragraph 112), and concludes that the first preliminary objection of the UAE must therefore be upheld (paragraph 114). I respectfully disagree. Qatar's claim of indirect discrimination requires a detailed examination at the merits stage. The Court should have declared that the first preliminary objection of the UAE does not possess an exclusively preliminary character.
"the definition of racial discrimination in article 1 expressly extends beyond measures which are explicitly discriminatory, to encompass measures which are not discriminatory at face value but are discriminatory in fact and effect, that is, if they amount to indirect discrimination. In assessing such indirect discrimination, the Committee must take full account of the particular context and circumstances of the petition, as by definition indirect discrimination can only be demonstrated circumstantially."31
"article 26 prohibits both direct and indirect discrimination, the latter notion being related to a rule or measure that may be neutral on its face without any intent to discriminate but which nevertheless results in discrimination because of its exclusive or disproportionate adverse effect on a certain category of persons"32.
The CESCR has declared that "[b]oth direct and indirect forms of differential treatment can amount to discrimination under article 2, paragraph 2, of the Covenant", defining indirect discrimination as "laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination"33. Similarly, the Committee on the Elimination of Discrimination against Women has declared that "States parties shall ensure that there is neither direct nor indirect discrimination against women", and explained when indirect discrimination occurs34.
"a violation of the right to equality and non-discrimination also occurs in situations and cases of indirect discrimination reflected in the disproportionate impact of norms, actions, policies or other measures that, even when their formulation is or appears to be neutral, or their scope is general and undifferentiated, have negative effects on certain vulnerable groups"36.
"xenophobia against non-nationals, particularly migrants, refugees and asylum-seekers, constitutes one of the main sources of contemporary racism and... human rights violations against members of such groups occur widely in the context of discriminatory, xenophobic and racist practices" (para. 16).
The drafters of the Durban Declaration considered that xenophobia against non-nationals "constitutes one of the main sources of contemporary racism", presumably because it often has the purpose or effect of discrimination based on "race, colour, descent or national or ethnic origin". Thus, the concern expressed by the Durban Declaration about xenophobia against non-nationals may also be explained by the notion of indirect discrimination.
"Under the Convention, differential treatment based on citizenship or immigration status 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."40
The phrase "judged in the light of the objectives and purposes of the Convention" in this context may be understood as referring to situations where differential treatment based on citizenship has the purpose or effect of discriminating on the basis of a prohibited ground listed in Article 1, paragraph 1, of CERD, that is, indirect discrimination.
In accordance with the notion of indirect discrimination explained in the previous section, if differentiation of treatment based on current nationality has an unjustifiable disproportionate prejudicial impact on an identifiable group distinguished by "race, colour, descent, or national or ethnic origin", it constitutes racial discrimination within the meaning of Article 1, paragraph 1, of CERD.
The majority of the Court considers that "[w]hile in the present case 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", because they "do not, either by their purpose or by their effect, give rise to racial discrimination against Qataris as a distinct social group on the basis of their national origin". In its view, "even if the measures of which Qatar complains in support of its 'indirect discrimination' claim were to be proven on the facts, they are not capable of constituting racial discrimination within the meaning of the Convention" (Judgment, paragraph 112). Accordingly, it concludes that the Court "does not have jurisdiction ratione materiae to entertain Qatar's [claim of indirect discrimination]" (paragraph 113).
It is also a relevant consideration that Qatar developed its claim of indirect discrimination significantly during the preliminary objections stage. In the Court's first provisional measures Order in the present case, five judges took the view that nationality was not encompassed within the term "national origin"47. Judges Tomka, Gaja and Gevorgian observed in addition that "[the] possibility [of indirect discrimination] has not been suggested by Qatar"48. During the oral proceedings on the preliminary objections in the present case, the UAE contended that "nowhere is [the] indirect discrimination claim referred to in Qatar's Application" and that "to try and patch a leaky argument, Qatar's counsel asserted... that Qatar's is an indirect discrimination claim"49. It should be noted, however, that in its Application, Qatar did refer to discrimination "de jure or de facto" on the basis of national origin and that in its Request for the indication of provisional measures, it requested that the Court order the UAE to cease and desist from any and all conduct that could result, "directly or indirectly", in any form of racial discrimination against Qatari individuals and entities50. In its Memorial, Qatar also contended that the UAE's measures had a discriminatory "effect" on Qataris51. Nevertheless, it is true that the Applicant significantly developed its arguments on indirect discrimination at the preliminary objections stage, in its Written Statement52 and in particular in its oral pleadings. The Court properly points out in this regard that "the subject-matter of a dispute is not limited by the precise wording that an applicant State uses in its application" (Judgment, paragraph 61), and that "the Rules of Court do not preclude Qatar from refining the legal arguments presented in its Application or advancing new arguments" (paragraphs 63 and 68).
"In principle, a party raising preliminary objections is entitled to have these objections answered at the preliminary stage of the proceedings unless the Court does not have before it all facts necessary to decide the questions raised or if answering the preliminary objection would determine the dispute, or some elements thereof, on the merits."53
In the present case, the Court does not have before it all facts necessary to decide the two issues raised in relation to Qatar's claim of indirect discrimination. They are precisely the issues that should be examined in detail by the Court at the merits stage. Furthermore, while the UAE's objection contains "both preliminary aspects and other aspects relating to the merits", it is "inextricably interwoven with the merits"54. Thus, the present case fulfils the criteria laid down by the Court for finding that a preliminary objection does not possess an exclusively preliminary character.
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