Application of the CERD – Case Qatar v. United Arab Emirates

Source: https://www.aljazeera.com/news/2018/01/qatar-files-complaints-uae-jets-breach-airspace-180113125621814.html

On 11 June 2018, Qatar instituted proceedings against the United Arab States (hereinafter: UAE) for the violation of the Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (hereinafter: CERD) at the International Court of Justice (hereinafter: ICJ).

However, the dispute has started earlier when four states: UAE, Saudi Arabia, Egypt, and Bahrain accused Qatar for allegedly financing terrorism in Yemen, severed diplomatic relations with Qatar and banned Qatari airplanes from using their airspace which, in the end, led to the case before the ICJ.

In its Application, Qatar claimed that the UAE implemented a series of discriminatory measures against Qataris such as expulsion, on a collective basis, all Qataris from, and prohibiting the entry of all Qataris into, the UAE on the basis of their national origin; violation of 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, and equal treatment before tribunals. According to the Applicant, the UAE also failed to condemn and instead encouraged racial hatred against Qatar and Qataris, allowed, promoted, and financed an international anti-Qatar public and social media campaign, shut down Qatari media such as local Al-Jazeera offices, and failed to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions, which led to the violation of Articles 2 (condemnation of racial discrimination), 4 (prohibition of incitement to racial discrimination), 5 (prohibition of racial discrimination in the enjoyment of a number of civil, economic, social and cultural rights), 6 (effective protection and remedies against any acts of racial discrimination), and 7 (undertaking to adopt measures to combat racial discrimination) of the CERD.

Regarding the jurisdiction of the ICJ, Qatar invoked Article 36 of the Statute of the ICJ, and as well Article 22 of the CERD which stipulates that “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.” It was also added that Qatar and the UAE are state-parties to the Statute, as well as the CERD, and neither party has entered a reservation to Article 22 of the CERD.

Moreover, the Applicant filed as well a Request for the indication of provisional measures requesting from the ICJ to order the UAE to withdraw discriminatory measures against Qataris, to cease all other measures that incite discrimination (including media campaigns and supporting others to propagate discriminatory messages) and criminalize such measures, to comply with its obligations under the CERD to condemn publicly racial discrimination against Qataris, and to refrain from taking any further discriminatory measure, and to provide full reparation, including compensation for violation of the CERD.

The ICJ on 23 July 2018 after the public hearings delivered its Order on the Request for the indication of provisional measures submitted by Qatar. The ICJ first observed whether it had jurisdiction and stated that it could indicate provisional measures only if the provisions relied on by the Applicant appear, without entering into the merits of the application, to afford a basis on which its jurisdiction could be founded. Since Qatar and the UAE are parties to the CERD, the ICJ observed that the mentioned Article 22 made its “jurisdiction conditional on the existence of a dispute arising out of the interpretation or application of the Convention.” According to Article 22, the dispute referred to the Court must be a dispute “not settled by negotiation or by the procedures expressly provided for in this Convention”.

The first attempt of the Applicant to solve the dispute with the UAE in international forums, including the United Nations, failed. The second attempt by a letter of 25 April 2018 of the Minister of State for Foreign Affairs of Qatar to the Minister of State for Foreign Affairs of the UAE, referring to the alleged violations of CERD arising from the measures taken by the UAE since 5 June 2017 and stating that “it [was] necessary to enter into negotiations in order to resolve these violations and the effects thereof within no more than two weeks”,[1] was also unsuccessful. The ICJ concluded that, since the UAE did not respond to the formal invitation of Qatar to negotiate, “the issues raised in the present case had not been resolved by negotiations at the time of the filing of the Application”, [2] thus it had jurisdiction in this case.

However, it is interesting that the ICJ did not find important for this case Qatar’s Communication to the CERD Committee under Article 11 of the CERD stating that Qatar did not rely on it for the purposes of showing the jurisdiction of the ICJ.

Regarding the provisional measures, the ICJ noted, based on the evidence presented by the Parties, that measures adopted by the UAE have targeted only Qataris residing in the UAE, and not other non-citizens. It was also found that some of the acts undertaken by the UAE against Qataris constitute acts of racial discrimination and at least some rights declared by Qatar under Article 5 of the CERD are plausible.[3] The ICJ concluded that there was the link between the claimed rights and provisional measures which were requested by Qatar to end the collective expulsion of Qataris from the territory of the UAE.[4] By eight votes to seven, it was requested from the UAE to ensure that separated Qataris families were reunited, to give Qatari students the opportunity to complete their education in the UAE or to obtain their educational records if they wish to continue their studies elsewhere, and to allow Qataris affected by the measures adopted access to tribunals and other judicial organs of the UAE. By eleven votes to four, it is decided that both Parties should refrain from “any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”[5]

The second Request for the indication of provisional measures was submitted on 22 March 2019 by the UAE requesting that “Qatar immediately withdraw its Communication submitted to the CERD Committee pursuant to Article11 of the CERD on 8 March 2018 against the UAE and take all necessary measures to terminate consideration thereof by the CERD Committee”. UAE emphasized that Qatar initiated two parallel legal proceedings, first based on Article 11 before the CERD Committee, and second based on Article 22 before the ICJ, seeking the same remedy. Therefore, Qatar was legally obliged to exhaust the procedures expressly provided in the CERD “before the seisin of the Court,”[6] according to the UAE. The problem with the UAE’s request is that the CERD Committee is not a judiciary body and its recommendations are not binding, so the Parties can decide whether to accept them or not.

The UAE further requested from Qatar to “immediately desist from hampering the UAE’s attempts to assist Qatari citizens, including by un-blocking in its territory access to the website by which Qatari citizens can apply for a permit to return to the UAE.”[7] The Respondent argued that Qatar blocked within its territory access by people living in Qatar to the website by which Qatari citizens can apply for a permit to return to the UAE creating false evidence in order to establish false facts and sabotaging the UAE’s efforts to assist Qatari nationals, including Qatari students, mixed family members, and other vulnerable individuals. In addition, it was stated that Qatar intentionally undermined the Respondent’s efforts to provide Qatari nationals with a procedure to access the UAE for exercising their rights before the UAE’s courts.[8]

Stopping immediately its national bodies and its State-owned, controlled and funded media outlets, including Al Jazeera, from aggravating and extending the dispute and making it more difficult to resolve by disseminating false accusations regarding the UAE and the issues in dispute before the Court was the third UAE’s request.[9] Finally, the last request was to Qatar “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”[10]

On 14 June 2019, the ICJ delivered its Order on the Request for the indication of provisional measures submitted by the UAE.

With respect to the first provisional measure, the ICJ concluded it did not “concern a plausible right under CERD, and it rather concerned the interpretation of the compromissory clause[11] in Article 22 of CERD and the permissibility of proceedings before the CERD Committee when the Court was seised of the same matter.” Since this question had already been examined in the Order of 23 July 2018, the ICJ did not see “any reason to depart from these views.” [12]

The second provisional measure, like the first, did not concern plausible rights of the UAE under CERD which required protection pending the final decision of the Court in the case, adding that “the judgment on the merits is the appropriate place for the Court to assess compliance with the provisional measures”.[13]

Regarding the third and fourth measures related to the non-aggravation of the dispute, the ICJ did not find that the conditions for the indication of the specific provisional measures were met. Once again, it was reiterated, like in the Order of 23 July 2018, that the Parties “shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve”[14] which remains binding for them.

By fifteen votes to one, the Request for the indication of provisional measured submitted by the Respondent was rejected.[15]

The dispute between Qatar and the UAE is specific since it has to be determined whether there are two parallel legal proceedings, one before the CERD Committee and the other before the ICJ.

If the ICJ decides to reject the Qatar’s claims regarding the jurisdiction, all eyes will be on the CERD Committee and its decision. However, it is unlikely to happen since the ICJ has already rejected the request of the UAE for the withdrawal of Qatar’s Communication before the CERD Committee. Regarding the alleged violations of the CERD, the evidence shows that discriminatory measures were implemented against Qataris, and therefore, the UAE should withdraw mentioned measures, provide access to the courts and the redress for the victims.

It remains to be seen how the ICJ will decide upon all these questions in the final judgment, especially the interpretation of Article 11 and Article 22 of the CERD. Certainly, the judgment will also have an impact on the relations between two countries which are already disrupted.

[1] International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirate), Order of 23 July 2018, para. 38.

[2] Ibid.

[3] Ibid., para. 54.

[4] Ibid., para. 59.

[5] Ibid., para. 79.

[6] International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirate), Request for the indication of provisional measures of the United Arab Emirates, para. 39.

[7] Ibid., para. 79(ii).

[8] Ibid., para. 51.

[9] Ibid., para. 79(iii).

[10] Ibid., para. 79(iv).

[11] Compromissory clause is a clause in a treaty providing for the submission of a matter or matters to arbitration—to be distinguished from a general treaty of arbitration.

[12] International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirate), Order of 23 July 2018, para. 25.

[13] Ibid., para. 26.

[14] Ibid., para. 29.

[15] Ibid., para 32.

Bibliography:

1. International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirate), Application instituting proceedings

2. International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirate), Request for the indication of provisional measures of Qatar

3. International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirate), Order of 23 July 2018

4. International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirate), Request for the indication of provisional measures of the United Arab Emirates

5. International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirate), Order of 14 June 2019

6. International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965 (entered into force: 4 January 1969)