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Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. U.A.E.) (I.C.J.)

Published online by Cambridge University Press:  09 June 2021

David Keane*
Affiliation:
Assistant Professor in Law, Dublin City University, Ireland.
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Extract

On February 4, 2021, the International Court of Justice (ICJ) delivered its judgment on the preliminary objections raised by the United Arab Emirates (UAE) in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates). It upheld by eleven votes to six the first preliminary objection raised by the UAE and found that it has no jurisdiction to entertain the application filed by Qatar. The case was referred to the Court under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and relates to measures taken on June 5, 2017 by the UAE, along with Saudi Arabia, Bahrain, and Egypt, to cut diplomatic ties with Qatar and impose a blockade, including expelling all Qatari residents and visitors.

Type
International Legal Documents
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of The American Society of International Law

Introduction

On February 4, 2021, the International Court of Justice (ICJ) delivered its judgment on the preliminary objections raised by the United Arab Emirates (UAE) in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates).Footnote 1 It upheld by eleven votes to six the first preliminary objection raised by the UAE and found that it has no jurisdiction to entertain the application filed by Qatar.Footnote 2 The case was referred to the Court under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),Footnote 3 and relates to measures taken on June 5, 2017 by the UAE, along with Saudi Arabia, Bahrain, and Egypt, to cut diplomatic ties with Qatar and impose a blockade, including expelling all Qatari residents and visitors.

The parties had disagreed on whether the term “national … origin,” one of the five grounds in the definition of racial discrimination in Article 1(1) ICERD, includes “nationality.”Footnote 4 The measures complained of referenced Qatari people, Qatari nationals, and Qatari residents and visitors, and it was broadly agreed that they were based on nationality. Qatar maintained that “national … origin” in Article 1(1) encompasses nationality and the measures fall within the scope ratione materiae of ICERD. The UAE argued that “national … origin” does not include nationality and thus the measures fall outside the scope of the Convention. The Court's decision in favor of the UAE is notable for the fact that it directly contradicts a finding of the Committee on the Elimination of Racial Discrimination (CERD) on the same issue involving the same disputants, under Article 11 of the inter-state communications mechanism.Footnote 5

Background: CERD's Admissibility Decision in Qatar v. UAE

Prior to seizing the Court, Qatar brought an inter-state communication against the UAE before CERD under the Articles 11–13 inter-state communications mechanism.Footnote 6 The Committee also considered, as a preliminary objection raised by the UAE, the absence of the term “nationality” in Article 1(1). Its decision on admissibility, issued on August 27, 2019, rejected the UAE's exception on this point, with the Committee finding that it “exercises its competence ratione materiae when confronted with differences of treatment based on nationality.”Footnote 7 The decision examined key issues that would arise in the Court's judgment. Firstly, Article 1 involves three provisions of relevance—the Article 1(1) definition of racial discrimination, and Articles 1(2) and 1(3), which frame the Convention approach to “nationality.” Article 1(2) reads: “This 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) reads: “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 second issue is the practice of CERD—in particular paragraph 4 of its General Recommendation (GR) XXX on non-citizens, which reads, “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, is not applied pursuant to a legitimate aim, and is not proportional to the achievement of this aim.”Footnote 8

CERD's admissibility decision holds that “nationality” is within the scope of the Article 1(1) definitional term “national … origin.” Articles 1(2) and 1(3) provide an express exception for legitimate differentiations based on nationality or citizenship as a result. GR XXX affirms that such differentiations are subject to a requirement of legitimate aim and proportionality, without which they may breach the Convention as being outside the permitted exceptions. Measures that focus on a “particular nationality” may also be considered a specific breach of Article 1(3), which expressly guards against this. Whether the measures Qatar complained of did in fact breach the provisions was not determined in the Committee decision, which decided only on the preliminary question of whether they fell within the scope of the treaty. Having found it had jurisdiction and declared the communication admissible, CERD appointed an ad hoc Conciliation Commission in accordance with Article 12 ICERD, the next step in the inter-state communications mechanism.Footnote 9

Judgment of the Court

In preliminary objections hearings before the ICJ, Qatar requested that the Court recognize CERD's finding in its admissibility decision on the scope ratione materiae of Article 1(1).Footnote 10 It argued that this would be consistent with the Court's own jurisprudence in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), in which the Court held that although in no way obliged to model its interpretation of the International Covenant on Civil and Political Rights on that of the Human Rights Committee, “it believes that it should ascribe great weight to the interpretation adopted by this independent body.”Footnote 11 Qatar's view was that these considerations apply equally to the practice of CERD.Footnote 12

The Court's judgment saw the interpretation of the term “national … origin” in accordance with Articles 31–32 of the Vienna Convention on the Law of Treaties (VCLT), examining text, context and object and purpose. In relation to text, the Court found: “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.”Footnote 13 It viewed “national … origin” as immutable and protected by the Convention, and “nationality” as mutable, discretionary, and purely legal, and therefore outside the scope of protection. The Court then examined context, in particular Articles 1(2) and 1(3), considering that these provisions support the interpretation of the ordinary meaning of the term “national … origin” as not encompassing current nationality. The Court highlighted how these provisions allow for “express exclusion from the scope of the Convention of differentiation between citizens and non-citizens.”Footnote 14 Finally, it turned to object and purpose, citing the condemnation in the Preamble of “any doctrine of superiority based on racial differentiation” as indicative that the Convention aims “to bring to an end all practices that seek to establish a hierarchy among social groups as defined by their inherent characteristics.” The Convention is “not intended to cover every instance of differentiation between persons based on their nationality,” being concerned instead with “any attempt to legitimize racial discrimination by invoking the superiority of one social group over another.”Footnote 15

Dissenting Views

There were six votes against and five offered a dissenting or separate opinion. Two of these, by Judges Bhandari and Robinson, provide a significant critique of the majority judgment. They adopt the same VCLT method. Both judges criticize the black and white approach of the majority, that “while nationality is changeable, national origin is a characteristic acquired at birth and for that reason is immutable.”Footnote 16 Judge Bhandari believes the terms cannot be so simply distinguished, while Judge Robinson finds the majority approach “too stark in its presentation of the difference between nationality and national origin and does not reflect the nuances distinguishing one from the other.”Footnote 17 The opinions shift to the context and Articles 1(2) and 1(3). Judge Robinson points out that the exceptional regime in Articles 1(2) and 1(3) is only intelligible on the basis that the definition of racial discrimination in Article 1(1) covers such distinctions, including nationality—if not, then there would be no need to provide for the exception.Footnote 18 Judges Bhandari and Robinson finally turn to the role of CERD and GR XXX, with its key provision on legitimate aim and proportionality. As Judge Robinson highlights, the effect of GR XXX is not to prevent states from adopting measures that differentiate on the basis of nationality or citizenship, which is clearly allowed by Articles 1(2) and 1(3). It only prohibits measures “that cannot be justified on the basis that they serve a legitimate aim and are proportional to the achievement of that aim.”Footnote 19

The majority decision states only that it had “carefully considered” the position taken by CERD.Footnote 20 Judge Bhandari writes: “The Judgment provides no compelling reason as to why it has chosen to depart from the reasoning in Diallo in this dispute, despite the fact that CERD remains ‘the guardian of the Convention’.”Footnote 21 Similarly Judge Robinson opines: “There is no reason why the Court should not attach great weight to the recommendations of CERD (which is properly seen as the guardian of the Convention), if they are not in conflict with international human rights law or general international law.”Footnote 22

Conclusion

The UAE pointed out in hearings that the Court “has never simply blessed an interpretation of law or its application to the facts arrived at by a treaty-monitoring body. It is commonly acknowledged that the quality of what emerges from these bodies is variable.”Footnote 23 In its judgment, the Court chose not to follow the decision reached by CERD, which it is entitled to do. But, as highlighted in the dissenting views, there is a strong argument based on text, context, and object and purpose, that the decision reached by CERD was a legitimate reading of the scope of the Convention and ought to have carried “great weight” for the Court. The judgment may come to be viewed as an opportunity lost for the Court to support the work of the UN treaty bodies. Instead, it leaves the CERD inter-state communications mechanism in a challenging position. It is possible that developments in the diplomatic sphere will lead to Qatar discontinuing the communication. On March 15, 2021, following the Al Ula agreement reached by both states parties to the dispute, the ad hoc Conciliation Commission decided to suspend proceedings pursuant to Qatar's request.Footnote 24 Qatar has one year from the adoption of the Al Ula agreement to inform the Commission whether it wishes to resume the communication.Footnote 25 The Commission is to “remain seized of the matter”.Footnote 26

Article 59 of the Statute of the ICJ reads: “The decision of the Court has no binding force except between the parties and in respect of that particular case.”Footnote 27 The Court's judgment does not have binding force in respect of the inter-state communication before the Committee, which progresses on the basis of the decisions reached by CERD under Article 11 unless Qatar decides to discontinue the matter.Footnote 28 The inter-state communications mechanism before the Committee and dispute-resolution mechanism before the Court are interrelated, but also independent.Footnote 29 Articles 11-13 and Article 22 provide for differing roles of the Committee and the Court, and the Convention does not articulate a hierarchy, or final arbiter. The Court's judgment does not impact the progression of the Articles 11–13 mechanism, and the two views of “national … origin” must coexist. As the Court reflected on the recent occasion of its 75th anniversary, “there is no single, homogenized answer to many legal questions that arise in international disputes.”Footnote 30

APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (QATAR V. U.A.E.) (I.C.J.)

This text, and the accompanying declarations, dissents, and opinions, were reproduced from the texts available at the International Court of Justice website (visited April 20, 2021), https://www.icj-cij.org/en/case/172/judgments. The Declaration of Judge ad hoc Daudet is available in French only.

4 FEBRUARY 2021 JUDGMENT

APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

(QATAR V. UNITED ARAB EMIRATES)

__________

APPLICATION DE LA CONVENTION INTERNATIONALE SUR L’ÉLIMINATION DE TOUTES LES FORMES DE DISCRIMINATION RACIALE

(QATAR C. ÉMIRATS ARABES UNIS)

4 FÉVRIER 2021

ARRÊT

Paragraphs

  1. Chronology of the Procedure . . . . . . . . . . . . . . . . . 1–25

  2. I. Introduction . . . . . . . . . . . . . . . . . 26–40

    1. A. Factual background . . . . . . . . . . . . . . . . . 26–34

    2. B. The jurisdictional basis invoked and the preliminary objections raised . . . . . . . . . . . . . . . . . 35–40

  3. II. Subject-matter of the dispute . . . . . . . . . . . . . . . . . 41–70

  4. III. First Preliminary Objection: Jurisdiction ratione materiae . . . . . . . . . . . . . . . . . 71–114

    1. A. The question whether the term “national origin” encompasses current nationality . . . . . . . . . . . . . . . . . 74–105

      1. 1. The term “national origin” in accordance with its ordinary meaning, read in its context and in the light of the object and purpose of CERD . . . . . . . . . . . . . . . . . 78–88

      2. 2. The term “national origin” in the light of the travaux préparatoires as a supplementary means of interpretation . . . . . . . . . . . . . . . . . 89–97

      3. 3. The practice of the CERD Committee . . . . . . . . . . . . . . . . . 98–101

      4. 4. The jurisprudence of regional human rights courts . . . . . . . . . . . . . . . . . 102–104

      5. 5. Conclusion on the interpretation of the term “national origin” . . . . . . . . . . . . . . . . . 105

    2. B. The question whether the measures imposed by the UAE on certain Qatari media corporations come within the scope of the Convention . . . . . . . . . . . . . . . . . 106–108

    3. C. The question whether the measures that Qatar characterizes as “indirect discrimination” against persons of Qatari national origin fall within the scope of the Convention . . . . . . . . . . . . . . . . . 109–113

    4. D. General conclusion . . . . . . . . . . . . . . . . . 114

  5. Operative clause . . . . . . . . . . . . . . . . . 115

_______________________

INTERNATIONAL COURT OF JUSTICE

2021 4 February General List No. 172

YEAR 2021

4 February 2021

APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

(QATAR v. UNITED ARAB EMIRATES)

PRELIMINARY OBJECTIONS

Factual background.

Measures announced by the United Arab Emirates (“UAE”) on 5 June 2017 — Severance of diplomatic relations with Qatar — Entry ban — Travel bans — Expulsion order —Closure by UAE of airspace and seaports — Additional measures relating to Qatari media corporations and speech in support of Qatar — Communication of Qatar submitted to the Committee on the Elimination of Racial Discrimination (“CERD Committee”) on 8 March 2018 — Decisions on jurisdiction and admissibility of inter-State communication given by the CERD Committee on 27 August 2019 — CERD Committee rejects preliminary exceptions raised by the UAE — Appointment of an ad hoc Conciliation Commission.

*

Jurisdictional basis invoked and preliminary objections raised.

Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) — Preliminary objection to jurisdiction ratione materiae — Preliminary objection based on alleged failure to satisfy procedural preconditions of Article 22 of CERD.

*

Subject-matter of the dispute.

Applicant required to indicate subject-matter of dispute in its application — Court itself determines subject-matter of dispute on objective basis.

Qatar makes three claims of racial discrimination — First claim arising out of travel bans and expulsion order — Second claim arising from restrictions on Qatari media corporations — Third claim that measures taken result in “indirect discrimination” on the basis of Qatari national origin.

Claim arising out of travel bans and expulsion order — Qatar's contention that express reference to Qatari nationals constitutes discrimination on basis of current nationality — UAE's argument that such differentiation based on nationality does not violate CERD — Parties hold opposing views on whether the term “national origin” in Article 1, paragraph 1, of CERD encompasses current nationality.

Claim arising from restrictions on Qatari media corporations — Disagreement on whether measures directly targeted those corporations in a racially discriminatory manner.

Claim of “indirect discrimination” against persons of Qatari national origin — Qatar's assertion that expulsion order and travel bans give rise to “indirect discrimination” — Qatar's allegations that restrictions on media corporations and limitations on freedom of expression result in “indirect discrimination” — UAE's contention that claim was not presented in Application — Rules of Court do not preclude Qatar from refining the legal arguments presented in its Application or advancing new arguments — Parties hold opposing views over Qatar's claim that UAE has engaged in “indirect discrimination”.

Conclusion that the Parties disagree in respect of Qatar's three claims that UAE has violated its obligations under CERD — Parties’ disagreements in respect of these claims form the subject-matter of the dispute.

*

First preliminary objection: jurisdiction ratione materiae.

Question whether term “national origin” encompasses current nationality — Interpretation of “national origin” in Article 1, paragraph 1, of CERD on the basis of Article 31 and 32 of the Vienna Convention on the Law of Treaties — Ordinary meaning of term “national origin” does not encompass current nationality — Context in which term used in CERD, in particular paragraphs 2 and 3 of Article 1, supports ordinary meaning — Ordinary meaning also supported by object and purpose of CERD — The term “national origin”, in accordance with its ordinary meaning, read in its context and in light of object and purpose of CERD, does not encompass current nationality — Travaux préparatoires confirm this interpretation — Practice of the CERD Committee — General Recommendation XXX — Careful consideration by Court of position taken by CERD Committee therein — Court's conclusion reached using relevant rules of treaty interpretation — Jurisprudence of regional human rights courts of little help — Conclusion that the term “national origin” does not encompass current nationality — First claim consequently does not fall within scope of CERD.

Question whether measures imposed on Qatari media corporations come within scope of CERD — Convention concerns only individuals or groups of individuals — Reference to “institutions” in Article 2, paragraph 1 (a), does not include media corporations — Second claim, which relates to media corporations, does not fall within scope of CERD.

Question whether “indirect discrimination” falls within scope of CERD — Whether measures capable of falling within scope of CERD if, by their purpose or effect, they result in racial discrimination against persons on the basis of their Qatari national origin — Collateral or secondary effects on persons born in Qatar or of Qatari parents, or on family members of Qatari citizens residing in the UAE, do not constitute discrimination under CERD — Measures of which Qatar complains do not entail, either by their purpose or by their effect, racial discrimination under CERD — Court does not have jurisdiction to entertain third claim, which relates to “indirect discrimination”.

*

First preliminary objection upheld — No need to consider second preliminary objection.

JUDGMENT

Present: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judges ad hoc Cot, Daudet; Registrar Gautier.

In the case concerning the application of the International Convention on the Elimination of All Forms of Racial Discrimination,

between

the State of Qatar,

represented by

Mr. Mohammed Abdulaziz Al-Khulaifi, Legal Adviser to H.E. the Deputy Prime Minister and Minister for Foreign Affairs of the State of Qatar, Dean of the College of Law, Qatar University,

as Agent;

Mr. Vaughan Lowe, QC, Emeritus Chichele Professor of Public International Law, University of Oxford, member of the Institut de droit international, Essex Court Chambers, member of the Bar of England and Wales,

Mr. Pierre Klein, Professor of International Law, Université libre de Bruxelles,

Ms Catherine Amirfar, Debevoise & Plimpton LLP, member of the Bar of the State of New York,

Mr. Lawrence H. Martin, Foley Hoag LLP, member of the Bars of the District of Columbia and the Commonwealth of Massachusetts,

Mr. Nico Schrijver, Professor of International Law, Leiden University, member of the Institut de droit international,

as Counsel and Advocates;

H.E. Mr. Abdullah bin Hussein Al-Jaber, Ambassador of the State of Qatar to the Kingdom of the Netherlands,

Mr. Ahmad Al-Mana, Ministry of Foreign Affairs of the State of Qatar,

Mr. Jassim Al-Kuwari, Ministry of Foreign Affairs of the State of Qatar,

Mr. Nasser Al-Hamad, Ministry of Foreign Affairs of the State of Qatar,

Ms Hanadi Al-Shafei, Ministry of Foreign Affairs of the State of Qatar,

Ms Hessa Al-Dosari, Ministry of Foreign Affairs of the State of Qatar,

Ms Sara Al-Saadi, Ministry of Foreign Affairs of the State of Qatar,

Ms Amna Al-Nasser, Ministry of Foreign Affairs of the State of Qatar,

Mr. Ali Al-Hababi, Embassy of the State of Qatar in the Netherlands,

Mr. Rashed Al-Naemi, Embassy of the State of Qatar in the Netherlands,

Mr. Abdulla Al-Mulla, Ministry of Foreign Affairs of the State of Qatar,

as Advisers;

Mr. Pemmaraju Sreenivasa Rao, Special Adviser in the Office of the Attorney General of the State of Qatar, former member of the International Law Commission, member of the Institut de droit international,

Mr. Surya Subedi, QC (Hon.), Professor of International Law, University of Leeds, member of the Institut de droit international, Three Stone Chambers, member of the Bar of England and Wales,

Ms Loretta Malintoppi, 39 Essex Chambers, Singapore, member of the Bar of Rome,

Mr. Pierre d'Argent, Professor of International Law, Université catholique de Louvain, member of the Institut de droit international, Foley Hoag LLP, member of the Bar of Brussels,

Mr. Constantinos Salonidis, Foley Hoag LLP, member of the Bars of the State of New York and Greece,

Ms Floriane Lavaud, Debevoise & Plimpton LLP, member of the Bars of the State of New York and Paris, Solicitor of the Senior Courts of England and Wales,

Mr. Ioannis Konstantinidis, Assistant Professor of International Law, College of Law, Qatar University,

Mr. Ali Abusedra, Legal Counsel, Ministry of Foreign Affairs of the State of Qatar,

Ms Merryl Lawry-White, Debevoise & Plimpton LLP, member of the Bar of the State of New York, Solicitor Advocate of the Senior Courts of England and Wales,

Ms Ashika Singh, Debevoise & Plimpton LLP, member of the Bar of the State of New York,

Ms Julianne Marley, Debevoise & Plimpton LLP, member of the Bar of the State of New York,

Ms Rhianna Hoover, Debevoise & Plimpton LLP, member of the Bar of the State of New York,

Mr. Joseph Klingler, Foley Hoag LLP, member of the Bars of the State of New York and the District of Columbia,

Mr. Peter Tzeng, Foley Hoag LLP, member of the Bars of the State of New York and the District of Columbia,

as Counsel;

Ms Mary-Grace McEvoy, Debevoise & Plimpton LLP,

Mr. Andrew Wharton, Debevoise & Plimpton LLP,

Mr. Jacob Waltner, Debevoise & Plimpton LLP,

as Assistants,

and

the United Arab Emirates,

represented by

H.E. Ms Hissa Abdullah Ahmed Al-Otaiba, Ambassador of the United Arab Emirates to the Kingdom of the Netherlands,

as Agent;

H.E. Mr. Abdalla Hamdan AlNaqbi, Director of International Law Department, Ministry of Foreign Affairs and International Co-operation of the United Arab Emirates,

H.E. Ms Lubna Qassim Al Bastaki, Deputy Permanent Representative of the Permanent Mission of the United Arab Emirates to the United Nations Office and other international organizations in Geneva,

Mr. Scott Sheeran, Senior Legal Adviser to the Minister of State for Foreign Affairs, Ministry of Foreign Affairs and International Co-operation of the United Arab Emirates, Barrister and Solicitor of the High Court of New Zealand,

as Representatives and Advocates;

Sir Daniel Bethlehem, QC, Barrister, Twenty Essex Chambers, member of the Bar of England and Wales,

Mr. Mathias Forteau, Professor, University Paris Nanterre,

as Counsel and Advocates;

Mr. Abdulla Al Jasmi, Head of the Multilateral Treaties and Agreements Section, International Law Department, Ministry of Foreign Affairs and International Co-operation of the United Arab Emirates,

Mr. Mohamed Salim Ali Alowais, Head of the International Organizations and Courts Section, Embassy of the United Arab Emirates in the Netherlands,

Ms Majd Abdelqadir Mohamed Abdalla, Senior Legal Researcher, Multilateral Treaties and Agreements Section, International Law Department, Ministry of Foreign Affairs and International Co-operation of the United Arab Emirates,

Mr. Rashed Jamal Ibrahim Ibrahim Azzam, Legal Researcher for International Relations, International Law Department, Ministry of Foreign Affairs and International Co-operation of the United Arab Emirates,

as Representatives;

Ms Caroline Balme, Legal Adviser to the Minister of State for Foreign Affairs, Ministry of Foreign Affairs and International Co-operation of the United Arab Emirates,

Mr. Paolo Busco, Legal Adviser to the Minister of State for Foreign Affairs, Ministry of Foreign Affairs and International Co-operation of the United Arab Emirates, member of the Italian Bar, registered European lawyer with the Bar of England and Wales,

Mr. Charles L. O. Buderi, Partner, Curtis, Mallet-Prevost, Colt & Mosle LLP, London, member of the Bars of the District of Columbia and the State of California,

Mr. Simon Olleson, Barrister, Twenty Essex Chambers, member of the Bar of England and Wales,

Ms Luciana T. Ricart, LLM, New York University School of Law, Partner, Curtis, Mallet-Prevost, Colt & Mosle LLP, London, member of the Buenos Aires Bar Association and Solicitor of the Senior Courts of England and Wales,

Mr. Hal Shapiro, Partner, Akin Gump Strauss Hauer & Feld LLP, Washington, DC,

as Counsel;

Ms Patricia Jimenez Kwast, international law and dispute settlement consultant, DPhil candidate, University of Oxford,

as Assistant Counsel,

THE COURT,

composed as above, after deliberation,

delivers the following Judgment:

1. On 11 June 2018, the State of Qatar (hereinafter referred to as “Qatar”) filed in the Registry of the Court an Application instituting proceedings against the United Arab Emirates (hereinafter referred to as the “UAE”) with regard to alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (hereinafter “CERD” or the “Convention”).

2. In its Application, Qatar seeks to found the Court's jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article 22 of CERD.

3. On 11 June 2018, Qatar also submitted a Request for the indication of provisional measures, referring to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of Court.

4. The Registrar immediately communicated to the Government of the UAE the Application, in accordance with Article 40, paragraph 2, of the Statute of the Court, and the Request for the indication of provisional measures, in accordance with Article 73, paragraph 2, of the Rules of Court. He also notified the Secretary-General of the United Nations of the filing of the Application and the Request for the indication of provisional measures by Qatar.

5. In addition, by a letter dated 13 June 2018, the Registrar informed all Member States of the United Nations of the filing of the above-mentioned Application and Request for the indication of provisional measures.

6. Pursuant to Article 40, paragraph 3, of the Statute of the Court, the Registrar notified the Member States of the United Nations, through the Secretary-General, of the filing of the Application, by transmission of the printed bilingual text thereof.

7. Since the Court included upon the Bench no judge of the nationality of either Party, each Party proceeded to exercise the right conferred upon it by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case. Qatar chose Mr. Yves Daudet and the UAE Mr. Jean-Pierre Cot.

8. By its Order of 23 July 2018, the Court, having heard the Parties, indicated the following provisional measures:

  1. “(1) The United Arab Emirates must ensure that

    1. (i) families that include a Qatari, separated by the measures adopted by the United Arab Emirates on 5 June 2017, are reunited;

    2. (ii) Qatari students affected by the measures adopted by the United Arab Emirates on 5 June 2017 are given the opportunity to complete their education in the United Arab Emirates or to obtain their educational records if they wish to continue their studies elsewhere; and

    3. (iii) Qataris affected by the measures adopted by the United Arab Emirates on 5 June 2017 are allowed access to tribunals and other judicial organs of the United Arab Emirates;

  2. (2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” (I.C.J. Reports 2018 (II), pp. 433–434, para. 79.)

9. Pursuant to Article 43, paragraph 1, of the Rules of Court, the Registrar addressed to States parties to CERD the notifications provided for in Article 63, paragraph 1, of the Statute. In addition, in accordance with Article 69, paragraph 3, of the Rules of Court, the Registrar addressed to the United Nations, through its Secretary-General, the notifications provided for in Article 34, paragraph 3, of the Statute.

10. By an Order dated 25 July 2018, the President of the Court fixed 25 April 2019 and 27 January 2020 as the respective time-limits for the filing in the case of a Memorial by Qatar and a Counter-Memorial by the UAE.

11. On 22 March 2019, the UAE, referring to Article 41 of the Statute and Articles 73, 74 and 75 of the Rules of Court, also submitted a Request for the indication of provisional measures, in order to “preserve the UAE's procedural rights” and “prevent Qatar from further aggravating or extending the dispute between the Parties pending a final decision in th[e] case”.

12. The Deputy-Registrar immediately communicated a copy of the said Request to the Government of Qatar. He also notified the Secretary-General of the United Nations of the filing of the UAE's Request for the indication of provisional measures.

13. Qatar filed its Memorial in the case on 25 April 2019, within the time-limit fixed by the President of the Court.

14. On 30 April 2019, within the time-limit prescribed by Article 79, paragraph 1, of the Rules of Court of 14 April 1978 as amended on 1 February 2001, the UAE presented preliminary objections to the jurisdiction of the Court and the admissibility of the Application. Consequently, by an Order of 2 May 2019, having noted that, by virtue of Article 79, paragraph 5, of the Rules of Court of 14 April 1978 as amended on 1 February 2001, the proceedings on the merits were suspended, the President of the Court fixed 30 August 2019 as the time-limit within which Qatar could present a written statement of its observations and submissions on the preliminary objections raised by the UAE.

15. By its Order of 14 June 2019, the Court, having heard the Parties, rejected the Request for the indication of provisional measures submitted by the UAE on 22 March 2019.

16. Qatar filed a written statement of its observations and submissions on the preliminary objections raised by the UAE on 30 August 2019, within the time-limit fixed by the President of the Court.

17. By a letter dated 3 September 2019, the Registrar, acting pursuant to Article 69, paragraph 3, of the Rules of Court, transmitted to the Secretary-General of the United Nations copies of the written proceedings filed thus far in the case, and asked whether the Organization intended to present observations in writing under that provision in relation to the preliminary objections raised by the UAE. By a letter dated 27 September 2019, the Under-Secretary-General for Legal Affairs of the United Nations stated that the Organization did not intend to submit any observations in writing within the meaning of Article 69, paragraph 3, of the Rules of Court.

18. By a letter dated 19 August 2020, the Agent of the UAE, referring to Article 56 of the Rules of Court and Practice Directions IX and IXbis, expressed the wish of her Government to produce three new documents. By a letter dated 24 August 2020, the Agent of Qatar informed the Court that his Government consented to the production of the three new documents by the UAE and expressed the wish of his Government also to produce four new documents under Article 56, paragraph 1, of the Rules of Court. By a letter dated 26 August 2020, the Agent of the UAE informed the Court that her Government had no objection to the production of the four new documents by Qatar. Accordingly, the documents submitted by both Parties were added to the case file.

19. Pursuant to Article 53, paragraph 2, of its Rules, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and the documents annexed would be made accessible to the public on the opening of the oral proceedings, with the exception of Annexes 163, 165–243, 247–263, 265–271 and Exhibit B of Annex 272 of Qatar's Memorial, and Exhibit A of Annex 272-A of Qatar's Written Statement on the Preliminary Objections of the UAE.

20. Public hearings on the preliminary objections raised by the UAE were held by video link from 31 August 2020 to 7 September 2020, at which the Court heard the oral arguments and replies of:

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21. In the Application, the following claims were made by Qatar:

“65. 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:

  1. (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;

  2. (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;

  3. (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 toward 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

  4. (d) Failing to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions.

66. Accordingly, Qatar respectfully requests the Court to order the UAE to take all steps necessary to comply with its obligations under CERD and, inter alia:

  1. (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;

  2. (b) Immediately cease all other measures that incite discrimination (including media campaigns and supporting others to propagate discriminatory messages) and criminalize such measures;

  3. (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;

  4. (d) Refrain from taking any further measures that would discriminate against Qataris within its jurisdiction or control;

  5. (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;

  6. (f) Provide assurances and guarantees of non-repetition of the UAE's illegal conduct; and

  7. (g) Make full reparation, including compensation, for the harm suffered as a result of the UAE's actions in violation of the CERD.”

22. In the written proceedings on the merits, the following submissions were presented on behalf of the Government of Qatar in its Memorial:

“On the basis of the facts and legal arguments presented in this Memorial, Qatar, in its own right and as parens patriae of its citizens, respectfully requests the Court:

  1. 1. To adjudge and declare that the UAE, by the acts and omissions of its organs, agents, persons, and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control, is responsible for violations of the CERD, namely Articles 2 (1), 4, 5, 6 and 7, including by:

    1. (a) expelling, on a collective basis, all Qataris from the UAE;

    2. (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;

    3. (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

    4. (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;

  2. 2. To adjudge and declare that the UAE has violated the Court's Order on Provisional Measures of 23 July 2018;

  3. 3. And further to adjudge and declare that the UAE is obligated to cease its ongoing violations, make full reparation for all material and moral damage caused by its internationally wrongful acts and omissions under the CERD, and offer assurances and guarantees of non-repetition.

  4. 4. Accordingly, the Court is respectfully requested to order that the UAE:

    1. (a) immediately cease its ongoing internationally wrongful acts and omissions in contravention of Articles 2 (1), 4, 5, 6, and 7 of the Convention as requested in Chapter VII;

    2. (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 in Chapter VII; and

    3. (c) provide Qatar with assurances and guarantees of non-repetition in written form as requested in Chapter VII.”

23. In the preliminary objections, the following submissions were presented on behalf of the Government of the UAE:

“239. On the basis of each of the three independent preliminary objections explained above, the United Arab Emirates respectfully requests the Court to adjudge and declare that the Court lacks jurisdiction over Qatar's Application of 11 June 2018 and that the Application is inadmissible.

240. The United Arab Emirates reserves the right to amend and supplement this submission in accordance with the provisions of the Statute and the Rules of Court. The United Arab Emirates also reserves the right to submit further objections to the jurisdiction of the Court and to the admissibility of Qatar's claims if the case were to proceed to any subsequent phase.”

24. In the written statement of its observations and submissions on the preliminary objections, the following submissions were presented on behalf of the Government of Qatar:

“For the reasons described above, Qatar respectfully requests that the Court:

  1. 1. Reject the Preliminary Objections presented by the UAE;

  2. 2. Hold that it has jurisdiction to hear the claims presented by Qatar as set out in the Memorial, and that these claims are admissible; and

  3. 3. Proceed to hear those claims on the merits.”

25. At the oral proceedings on the preliminary objections, the following submissions were presented by the Parties:

On behalf of the Government of the UAE,

at the hearing of 4 September 2020:

“The United Arab Emirates respectfully requests the Court to adjudge and declare that the Court lacks jurisdiction to address the claims brought by the State of Qatar by its Application dated 11 June 2018.”

On behalf of the Government of Qatar,

at the hearing of 7 September 2020:

“In accordance with Article 60 of the Rules of Court, for the reasons explained in our Written Statement of 30 August 2019 and during these hearings, Qatar respectfully asks the Court to:

  1. (a) Reject the Preliminary Objections presented by the UAE;

  2. (b) Hold that it has jurisdiction to hear the claims presented by Qatar as set out in its Application and Memorial; and

  3. (c) Proceed to hear those claims on the merits;

  4. (d) Or, in the alternative, reject the Second Preliminary Objection presented by the UAE and hold, in accordance with the provisions of Article 79ter, paragraph 4, of the Rules of Court, that the First Preliminary Objection submitted by the UAE does not possess an exclusively preliminary character.”

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I. Introduction

A. Factual background

26. On 5 June 2017, the UAE issued a statement (hereinafter the “5 June 2017 statement”) which provided, in relevant part, that

“based on the insistence of the State of Qatar to continue to undermine the security and stability of the region and its failure to honour international commitments and agreements, it has been decided to take the following measures that are necessary for safeguarding the interests of the [Gulf Cooperation Council] States in general and those of the brotherly Qatari people in particular:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  1. 2. Preventing Qatari nationals from entering the UAE or crossing its point of entry, giving Qatari residents and visitors in the UAE 14 days to leave the country for precautionary security reasons. The UAE nationals are likewise banned from traveling to or staying in Qatar or transiting through its territories.”

The Gulf Cooperation Council (hereinafter the “GCC”) is an intergovernmental political and economic union of which Qatar and the UAE were founding members in 1981, along with the Kingdom of Bahrain, the State of Kuwait, the Sultanate of Oman and the Kingdom of Saudi Arabia.

27. In addition, the 5 June 2017 statement announced the severance of diplomatic relations with Qatar, in support of actions taken by the Kingdom of Bahrain and the Kingdom of Saudi Arabia, giving Qatari diplomats 48 hours to leave the UAE. It also proclaimed the “[c]losure of UAE airspace and seaports for all Qataris in 24 hours and banning [of] all Qatari means of transportation, coming to or leaving the UAE, from crossing, entering or leaving the UAE territories”.

28. The 5 June 2017 statement explained:

“The UAE is taking these decisive measures as a result of the Qatari authorities’ failure to abide by the Riyadh Agreement on returning GCC diplomats to Doha and its Complementary Arrangement in 2014, and Qatar's continued support, funding and hosting of terror groups, primarily Islamic Brotherhood, and its sustained endeavours to promote the ideologies of Daesh and Al Qaeda across its direct and indirect media in addition to Qatar's violation of the statement issued at the US–Islamic Summit in Riyadh on May 21st, 2017 on countering terrorism in the region and considering Iran a state sponsor of terrorism. The UAE measures are taken as well based on Qatari authorities’ hosting of terrorist elements and meddling in the affairs of other countries as well as their support of terror groups — policies which are likely to push the region into a stage of unpredictable consequences.”

29. According to an announcement posted on the website of the Ministry of Foreign Affairs and International Co-operation of the UAE on 11 June 2017, the President of the UAE had “instructed the authorities concerned to take into consideration the humanitarian circumstances of Emirati-Qatari joint families”. The announcement further provided that “the Ministry of the Interior ha[d] set up a telephone line . . . to receive such cases and take appropriate measures to help them”. In a statement dated 5 July 2018, the Ministry of Foreign Affairs and International Co-operation of the UAE specified that “[s]ince its announcement on June 5, 2017 . . . the UAE has instituted a requirement for all Qatari citizens overseas to obtain prior permission for entry into the UAE. Permission may be granted for a limited-duration period, at the discretion of the UAE [G]overnment.” The statement added that

“Qatari citizens already resident in the UAE need not apply for permission to continue residence in the UAE. However, all Qatari citizens resident in the UAE are encouraged to obtain prior permission for re-entry into UAE territory. All applications for entry clearance may be made through the telephone hotline announced on June 11, 2017.”

30. The UAE took certain additional measures relating to Qatari media and speech in support of Qatar. In this regard, on 6 June 2017, the Attorney General of the UAE issued a statement indicating that expressions of sympathy for the State of Qatar or objections to the measures taken by the UAE against the Qatari Government were considered crimes punishable by imprisonment and a fine. The UAE blocked several websites operated by Qatari companies, including those run by Al Jazeera Media Network. On 6 July 2017, the Abu Dhabi Department of Economic Development issued a circular prohibiting the broadcasting of certain television channels operated by Qatari companies.

31. On 8 March 2018, Qatar deposited a communication with the Committee on the Elimination of Racial Discrimination (hereinafter the “CERD Committee”) under Article 11 of the Convention, requesting that the UAE take all necessary steps to end the measures enacted and implemented since 5 June 2017. According to Article 11, paragraph 1, of CERD, “[i]f a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee”. The UAE, through its responses dated 29 November 2018, 14 January 2019 and 19 March 2019, requested “the Committee to dismiss Qatar's Article 11 Communication for lack [of] jurisdiction and/or lack of admissibility”.

32. On 11 June 2018, Qatar filed an Application in the Registry of the Court instituting the present proceedings (see paragraph 1 above).

33. In its decision on jurisdiction with regard to Qatar's inter-State communication, dated 27 August 2019, the CERD Committee concluded that “it ha[d] jurisdiction to examine the exceptions of inadmissibility raised by the Respondent State” (Decision on the jurisdiction of the Committee over the inter-State communication submitted by Qatar against the UAE dated 27 August 2019, United Nations, doc. CERD/C/99/3, para. 60). In its decision on the admissibility of the inter-State communication, also dated 27 August 2019, the CERD Committee concluded as follows:

“64. In respect of the inter-state communication submitted on 8 March 2018 by Qatar against the United Arab Emirates, the Committee rejects the exceptions raised by the Respondent State concerning the admissibility of the inter-state communication.

65. The Committee requests its Chairperson to appoint, in accordance with article 12 (1) of the Convention, the members of an ad hoc Conciliation Commission, which shall make its good offices available to the States concerned with a view to an amicable solution of the matter on the basis of the States parties’ compliance with the Convention.” (Decision on the admissibility of the inter-State communication submitted by Qatar against the UAE dated 27 August 2019, United Nations, doc. CERD/C/99/4, paras. 64–65.)

34. By a Note Verbale dated 27 April 2020, addressed by the Permanent Mission of the UAE in Geneva to the Office of the High Commissioner for Human Rights, the Permanent Mission “note[d] with appreciation the [Office's] Note Verbale of 9 April 2020 advising that the ad hoc Conciliation Commission has been appointed by the Chair of the Committee, and has been effective since 1 March 2020”.

B. The jurisdictional basis invoked and the preliminary objections raised

35. Qatar asserts that the Court has jurisdiction over its Application pursuant to Article 22 of CERD, which provides:

“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.”

36. Qatar and the UAE are parties to CERD. Qatar acceded to this Convention on 22 July 1976 without entering any reservation. The UAE did so on 20 June 1974 without entering any reservation relevant to the present proceedings.

37. Qatar contends that there is a dispute between the Parties with respect to the interpretation and application of CERD and that the Parties have been unable to settle this dispute despite Qatar's attempts to negotiate with the UAE.

38. At the present stage of these proceedings, the UAE asks the Court to adjudge and declare that the Court lacks jurisdiction to address the claims brought by Qatar on the basis of two preliminary objections. In its first preliminary objection, the UAE maintains that the Court lacks jurisdiction ratione materiae over the dispute between the Parties because the alleged acts do not fall within the scope of CERD. In its second preliminary objection, the UAE asserts that Qatar failed to satisfy the procedural preconditions of Article 22 of CERD.

39. The Court notes that, in its written pleadings, the UAE had also included an objection to admissibility on the ground that Qatar's claims constitute an abuse of process. However, during the oral proceedings, counsel for the UAE stated that it was not pursuing an allegation of abuse of process at this stage of the proceedings.

40. Before addressing the preliminary objections of the UAE, the Court will determine the subject-matter of the dispute.

II. Subject-matter of the dispute

41. Pursuant to Article 40, paragraph 1, of the Statute and Article 38, paragraph 1, of the Rules of Court, an applicant is required to indicate the subject of a dispute in its application. The Rules of Court also require that an application “specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based” (Article 38, paragraph 2, of the Rules of Court). A Memorial “shall contain a statement of the relevant facts, a statement of law, and the submissions” (Article 49, paragraph 1, of the Rules of Court).

42. It is for the Court itself to determine on an objective basis the subject-matter of the dispute between the parties, by isolating the real issue in the case and identifying the object of the applicant's claims. In doing so, the Court examines the application, as well as the written and oral pleadings of the parties, while giving particular attention to the formulation of the dispute chosen by the applicant. It takes account of the facts that the applicant presents as the basis for its claims. The matter is one of substance, not of form (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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 575, para. 24; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), pp. 308–309, para. 48).

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43. According to the Applicant, its “Application concerns a legal dispute between Qatar and the UAE regarding the UAE's deliberate and flagrant violations of the CERD”. It claims that “[t]he UAE has enacted and implemented a series of discriminatory measures directed at Qataris based expressly on their national origin — measures that remain in effect to this day”.

44. Qatar further characterizes the subject-matter of the dispute in the written statement of its observations and submissions on the preliminary objections as follows:

“As Qatar explained in its Application, Memorial, and during the provisional measures phase of the proceedings, Qatar's claims are based on acts and omissions of the UAE that discriminate against Qataris on the basis of national origin and in violation of Articles 2, 4, 5, 6, and 7 of the CERD. These acts and omissions include, in particular, the collective expulsion of Qataris from the UAE pursuant to its 5 June Directive (the ‘Expulsion Order’); the absolute ban on entry to the UAE by Qataris (the ‘Absolute Travel Ban’), which was later modified by the imposition of a ‘hotline’ and website procedure that continue to restrict Qataris’ entry into the UAE on an arbitrary and discriminatory basis (the ‘Modified Travel Ban’); and the enactment of measures encouraging anti-Qatari hate propaganda and prejudice, and suppressing Qatari media and speech deemed to support Qatar (including, respectively, the ‘Anti-Qatari Incitement Campaign’, the ‘Anti-Sympathy Law’, and the ‘Block on Qatari Media’).”

45. Qatar states that the measures it describes as the “expulsion order” and the “travel bans”, by their express reference to Qatari nationals, discriminate against Qataris on the basis of their current nationality. It points out that the definition of “racial discrimination” contained in Article 1, paragraph 1, of CERD includes discrimination on the basis of national origin. Qatar maintains that “nationality” is encompassed within the phrase “national origin”.

46. Qatar also alleges that the UAE directly targeted Qatari media corporations by blocking access to their websites and broadcasts in all or part of the UAE's territory. It maintains that these measures were imposed “on racially discriminatory grounds” and that CERD extends to racial discrimination against “institutions”, which it considers to include corporations.

47. Qatar also points out that CERD applies to measures that are not framed as distinctions on the basis of a protected ground but have in fact the purpose or effect of racial discrimination. It maintains that, regardless of whether the measures imposed by the UAE are explicitly based on Qatari nationality, they have the purpose or effect of nullifying or impairing the rights and freedoms of persons of Qatari national origin, in the sense of their Qatari heritage and culture. It contends that such measures give rise to “indirect discrimination”.

48. As one part of its claim of indirect discrimination, Qatar asserts that the measures which discriminate on the basis of current Qatari nationality violate the UAE's obligations under CERD for another independent reason, “because they have an unjustifiable disparate impact on individuals of Qatari origin, in the sense of their heritage and culture”.

49. As further support for its claim of indirect discrimination, Qatar maintains that a number of measures imposed by the UAE encourage anti-Qatari propaganda and suppress speech deemed to be in support of Qatar. It refers to the ban on Qatari media corporations as well as a 6 June 2017 announcement of the Attorney General of the UAE which stated that persons “expressing sympathy, bias or affection for” the State of Qatar or “objecting to the . . . measures . . . taken [by the UAE] against the Qatari [G]overnment” are considered to have committed crimes punishable by imprisonment and a fine (see paragraph 30 above). Qatar contends that, although this statement refers to the “Qatari Government”, it is “clearly understood as a reference to Qatar qua State and Qatar qua Qataris”. Additionally, Qatar alleges that the UAE has attempted to incite discrimination against Qataris, referring to statements in social and traditional media by persons it identifies as officials of the UAE, which it considers to be attributable to the UAE.

50. Qatar points out that the UAE's measures are not exclusively addressed to Qataris on the basis of their current nationality and asserts that it has from the beginning framed its case to include a claim of unjustifiable disparate impact. It alleges that the measures imposed by the UAE penalize persons of Qatari national origin based on their identification with Qatari national traditions and culture, their Qatari accent or their Qatari dress. It further alleges that these measures discriminate against persons who are not Qatari citizens on the basis of their cultural identification as “Qataris”.

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51. The UAE asserts that the subject-matter of the dispute is alleged discrimination on the basis of current Qatari nationality, a term that, in its view, is distinct from “national origin”. It contends that claims arising from the measures that Qatar describes as the “expulsion order” and the “travel bans” are founded on differential treatment of persons based on their Qatari nationality.

52. The UAE maintains that Qatar seeks to blur the distinction between the terms “nationality” and “national origin” by using the two terms interchangeably and by referring obliquely to “Qataris” in its written and oral pleadings.

53. The UAE acknowledges that it has imposed restrictions on websites of some Qatari media corporations, stating that it did so on the basis of content restrictions, pursuant to UAE law. It considers that measures that address corporations do not fall within the definition of racial discrimination contained in CERD and thus that Qatar's claims with respect to the measures to restrict transmissions of Qatari media corporations are outside the scope of CERD.

54. The UAE also maintains that the restrictions on Qatari media and the other facts that Qatar invokes in support of its allegations of incitement and suppression of free speech, even if established, are not indicative of a claim of racial discrimination, but rather must be assessed in the context of the UAE's conviction that Qatar supports terrorism, extremism and intervention. It points out that Qatar itself frames its allegation of incitement by accusing the UAE of “media attacks on Qatar” and the dissemination of false reports “accusing Qatar of support for terrorism”. It notes that the 6 June 2017 statement of the Attorney General of the UAE relates to persons who express support for the State of Qatar, not to persons of Qatari national origin.

55. The UAE accepts that disguised discrimination against members of a protected group would fall within the scope of CERD. However, it contends that, in the present case, the subject-matter of the dispute is limited to alleged direct discrimination on the basis of current nationality and does not extend to “indirect discrimination” because this is not the case that Qatar has pleaded. According to the UAE, Qatar has introduced legal arguments relating to “indirect discrimination” because its claim of direct discrimination on the basis of national origin does not withstand scrutiny.

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56. As can be seen from Qatar's characterization of the subject-matter of the dispute (see paragraph 44 above), Qatar makes three claims of racial discrimination. The 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. In order to determine the subject-matter of the dispute, the Court will consider these three claims in turn.

57. As noted above (see paragraph 45), Qatar states that the “expulsion order” and the “travel bans”, by their express reference to Qatari nationals, discriminate against Qataris on the basis of their current nationality. The UAE acknowledges that these measures differentiate between Qataris and other persons on the basis of their current nationality, but does not agree that the measures violate its obligations under CERD. The Parties’ characterization of the basis for the challenged measures is consistent with the text of the measures themselves, which refer, inter alia, to “Qatari residents and visitors”, “Qatari nationals”, “Qataris”, “Qatari citizens” and “travellers holding Qatari passports”.

58. As to Qatar's first claim, taking into account Qatar's characterization of these measures and the facts on which it relies in support of its claim that the measures that it describes as the “expulsion order” and the “travel bans” discriminate against Qataris on the basis of their current nationality, in violation of the UAE's obligations under CERD, as well as the characterization by the Respondent, the Court considers that the Parties hold opposing views over this claim.

59. With regard to Qatar's second claim, the Court has noted that the UAE does not deny that it imposed measures to restrict broadcasting and internet programming by certain Qatari media corporations. The Parties disagree, however, on whether those measures directly targeted these media corporations in a racially discriminatory manner, in violation of the UAE's obligations under CERD.

60. As to its third claim, as noted above, Qatar maintains that the subject-matter of the dispute encompasses Qatar's assertion that the “expulsion order” and the “travel bans” give rise to “indirect discrimination” against persons of Qatari national origin, independent of the claim of racial discrimination on the basis of current nationality. The UAE, however, maintains that this claim of “indirect discrimination” is not part of the case presented in Qatar's Application.

61. The Court observes that the subject-matter of a dispute is not limited by the precise wording that an applicant State uses in its application. The Rules of Court provide an applicant State with some latitude to develop the allegations in its application, so long as it does not “transform the dispute brought before the Court by the application into another dispute which is different in character” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 318–319, paras. 98 and 99).

62. Qatar's Application did not expressly set out Qatar's contention that the “travel bans” and “expulsion order” give rise to “indirect discrimination” against Qataris on a basis other than nationality. Qatar explains that it developed this argument in its Memorial in response to arguments made by the UAE during the provisional measures phase of the case. In addition, Qatar's Request for the indication of provisional measures, filed on the same day as the Application, requested the Court to order that the UAE cease “all conduct that could result, directly or indirectly, in any form of racial discrimination against Qatari individuals and entities”.

63. The Court considers that the Rules of Court do not preclude Qatar from refining the legal arguments presented in its Application or advancing new arguments in response to those made by the UAE, thereby making explicit the contention that the measures that Qatar describes as the “travel bans” and “expulsion order” give rise to “indirect discrimination” against persons of Qatari national origin, in violation of the UAE's obligations under CERD.

64. The Court turns next to Qatar's other allegations of “indirect discrimination” against persons of Qatari national origin. Qatar brings these allegations on the basis of the restrictions on Qatari media corporations and other measures that, in its view, attack freedom of expression, incite anti-Qatari sentiment, and criminalize speech deemed to be in favour of Qatar or critical of the UAE's policies towards Qatar, as well as statements by the UAE or its officials that express or condone anti-Qatari hate speech and propaganda.

65. The Court notes that Qatar made specific references in its Application to the 6 June 2017 statement by the Attorney General of the UAE, the restrictions on Qatari media corporations, the UAE's “media defamation” campaign against Qatar and alleged statements by UAE officials fostering anti-Qatari sentiment.

66. The Parties address these contentions in their written and oral pleadings. Although Qatar acknowledges that the statement by the Attorney General of the UAE refers to criminal penalties for supporting the Qatari Government, not Qataris, it asserts that the risk of criminal penalties has a chilling effect and potentially alienates Qataris from their Emirati friends and family. It introduces several witness statements to substantiate its claims. In support of its contention that the UAE has fostered anti-Qatari sentiment, Qatar attaches to its Memorial a number of social media posts from persons it describes as UAE officials in which the authors criticize Qatar. Qatar claims that these statements formed part of a wider media campaign directed against it. It asserts that this criticism of Qatar has resulted in hate messages directed towards persons of Qatari national origin. Qatar also claims that the restrictions on Qatari media corporations have interfered with the free expression of Qatari ideas and culture in a broader sense and have contributed to the climate of fear which persons of Qatari national origin are said to have experienced as a result of the other measures that the UAE has taken.

67. The UAE does not dispute that its Attorney General made the statement to which Qatar objects. It acknowledges that it has made “adverse comments directed towards the State of Qatar and its behaviour” and that “others within its territory may have made similar comments against the State of Qatar”. It does not accept, however, that such comments about another State can give rise to a claim of racial discrimination under CERD. The UAE also refutes Qatar's allegations of certain instances in which individuals claim to have been arrested, mistreated or to have suffered other negative consequences in the UAE for expressing sympathy with Qatar and adds that in any case the persons concerned are not of Qatari nationality or alleged to be of Qatari national origin. The UAE also argues that, by invoking the restrictions on Qatari media corporations in support of its claim of “indirect discrimination”, Qatar has presented a new argument that does not form part of the case pleaded in its Application.

68. In its Application, Qatar alleges that the restrictions imposed on Qatari media corporations violate the freedom of expression of Qataris (see paragraphs 64–65 above). As the Court previously noted (see paragraph 63 above), the Rules of Court do not preclude Qatar from refining the legal arguments presented in its Application or advancing new arguments.

69. Taking into account the Application and the written and oral pleadings, as well as the facts asserted by Qatar, the Court considers that the Parties hold opposing views over Qatar's claim that the UAE has engaged in “indirect discrimination” against persons of Qatari national origin, in violation of its obligations under CERD.

70. In view of the preceding analysis, the Court concludes that the Parties disagree in respect of Qatar's three claims that the UAE has violated its obligations under CERD: first, the claim that the measures that Qatar describes as the “expulsion order” and the “travel bans”, by their express references to Qatari nationals, discriminate against Qataris on the basis of their current nationality; secondly, the claim that the UAE imposed racially discriminatory measures on certain Qatari media corporations; and thirdly, the claim that the UAE has engaged in “indirect discrimination” against persons of Qatari national origin by taking these measures and other measures summarized in paragraph 64. The Parties’ disagreements in respect of these claims form the subject-matter of the dispute.

III. First preliminary objection: jurisdiction ratione materiae

71. The Court will now consider whether it has jurisdiction ratione materiae over the dispute under Article 22 of CERD.

72. In order to determine whether the dispute is one with respect to the interpretation or application of CERD, under its Article 22, the Court will examine whether each of the above claims falls within the scope of CERD (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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 595, paras. 94–95). The Court will address Qatar's claims in the order mentioned above (see paragraph 70).

73. The Court observes that, as far as the first claim of Qatar is concerned, the Parties disagree on whether the term “national origin” in Article 1, paragraph 1, of the Convention encompasses current nationality. In respect of the second claim of Qatar, the Parties disagree on whether the scope of the Convention extends to Qatari media corporations. Finally, in respect of the third claim, the Parties disagree on whether the measures of which Qatar complains give rise to “indirect discrimination” against Qataris on the basis of their national origin. The Court will examine each of these questions with a view to ascertaining whether it has jurisdiction ratione materiae in the present case.

A. The question whether the term “national origin” encompasses current nationality

74. Qatar is of the view that the term “national origin”, in the definition of racial discrimination in Article 1, paragraph 1, of the Convention, encompasses current nationality and that the measures of which Qatar complains thus fall within the scope of CERD. The UAE argues that the term “national origin” does not include current nationality and that the Convention does not prohibit differentiation based on the current nationality of Qatari citizens, as complained of by Qatar in this case. Thus, the Parties hold opposing views on the meaning and scope of the term “national origin” in Article 1, paragraph 1, of the Convention, which reads:

“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.”

*  *

75. In order to determine its jurisdiction ratione materiae in this case, the Court will interpret CERD and specifically the term “national origin” in Article 1, paragraph 1, thereof by applying the rules on treaty interpretation enshrined in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (hereinafter the “Vienna Convention”). Although that Convention is not in force between the Parties and is not, in any event, applicable to treaties concluded before it entered into force, such as CERD, it is well established that Articles 31 and 32 of the Vienna Convention reflect rules of customary international law (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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 598, para. 106; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), pp. 320–321, para. 91; Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 116, para. 33).

76. The Court will interpret the term “national origin” by reference, first, to the elements set out in Article 31 of the Vienna Convention, which states the general rule of treaty interpretation. Only then will the Court turn to the supplementary means of interpretation provided for in Article 32 in order to confirm the meaning resulting from that process, or to remove ambiguity or obscurity, or to avoid a manifestly absurd or unreasonable result (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), p. 321, para. 91; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 109–110, para. 160).

77. The Court will also examine the practice of the CERD Committee and of regional human rights courts. In their pleadings, the Parties expressed different opinions on that practice in relation to the interpretation of the term “national origin” in Article 1, paragraph 1, of the Convention. The Court recalls that, in its jurisprudence, it has taken into account the practice of committees established under human rights conventions, as well as the practice of regional human rights courts, in so far as this was relevant for the purposes of interpretation (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, I.C.J. Reports 2012 (I), p. 331, para. 13; pp. 334–335, para. 24; p. 337, para. 33, and pp. 339–340, para. 40; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), pp. 457–458, para. 101; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), pp. 663–664, para. 66; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 179, para. 109, and pp. 192–193, para. 136).

1. The term “national origin” in accordance with its ordinary meaning, read in its context and in the light of the object and purpose of CERD

78. The Court recalls that Article 31, paragraph 1, of the Vienna Convention provides 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”. The Court's interpretation must take account of all these elements considered as a whole (Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment, I.C.J. Reports 2017, p. 29, para. 64).

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79. According to the UAE, the ordinary meaning of the term “national origin” does not encompass current nationality, because the latter concept refers to a legal relationship with a State in the sense of citizenship, whereas national origin denotes “an association with a nation of people, not a State”. In the Respondent's view, the five authentic texts of “the Convention confirm that the drafters drew a distinction between the term “national origin”, as used in Article 1, paragraph 1, and Article 5 of the Convention, and “nationality”, as used in Article 1, paragraph 3, of the Convention. In its view, the definition of racial discrimination in the Convention refers only to characteristics that are inherent and immutable, namely race, colour, descent, or national or ethnic origin. Nationality, on the other hand, is a legal bond that can change over time. Lastly, the Respondent considers that the Convention's title and Preamble confirm that it does not prohibit differentiation on the basis of an individual's current nationality, since it concerns racial discrimination. According to the Respondent, the Preamble reaffirms the overall aim of bringing racial discrimination to an end and makes no mention of discrimination based on current nationality. It thus argues that the term “national origin” as used in Article 1, paragraph 1, of CERD is “an individual's permanent association with a particular nation of people” and does not include nationality in the sense of citizenship.

80. In Qatar's view, discrimination based on a person's current nationality falls within the prohibition of racial discrimination provided for in Article 1, paragraph 1, of the Convention. According to the Applicant, the term “national origin” refers to a person belonging to a nation by birth, or to the country from which he or she originates, as well as a person's current nationality or national affiliation. It contends that this term, as reproduced in the different languages of the Convention, does not refer only to the immutable characteristics of a person. Qatar further contends that paragraphs 2 and 3 of Article 1, which exclude from the scope of the Convention any differentiation between citizens and non-citizens and at the same time prohibit discrimination against any particular nationality, would be deprived of any effet utile if current nationality were not covered by the term “national origin”. Relying on the Preamble, the Applicant argues that it was the drafters’ intention that the Convention would not remain static but would form a comprehensive network of protections which would apply to racial discrimination, however it manifests, across different countries, contexts and time periods. According to the Applicant, excluding current nationality from the definition of racial discrimination would permit States to put in place any discriminatory policy targeting individuals or groups with the characteristics expressly mentioned in Article 1, paragraph 1, of the Convention. The adoption of such policies could be justified officially by sole reference to current nationality rather than to the characteristics in question. The Applicant thus concludes that the exclusion of nationality-based discrimination from the scope of the Convention would lead to absurd results wholly at odds with its purpose.

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81. As the Court has recalled on many occasions, “[i]nterpretation must be based above all upon the text of the treaty” (Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 22, para. 41). The Court observes that 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 (Nottebohm (Liechtenstein v. Guatemala), Second Phase, Judgment, I.C.J. Reports 1955, pp. 20 and 23). 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.

82. The Court will next turn to the context in which the term “national origin” is used in the Convention, in particular paragraphs 2 and 3 of Article 1, which provide that:

“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.”

83. The Court considers that these provisions support the interpretation of the ordinary meaning of the term “national origin” as not encompassing current nationality. While according to paragraph 3, the Convention in no way affects legislation concerning nationality, citizenship or naturalization, on the condition that such legislation does not discriminate against any particular nationality, paragraph 2 provides that any “distinctions, exclusions, restrictions or preferences” between citizens and non-citizens do not fall within the scope of the Convention. In the Court's view, 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.

84. The Court will now examine the object and purpose of the Convention. The Court has frequently referred to the preamble of a convention to determine its object and purpose (Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019 (I), p. 28, para. 57, and p. 38, para. 91; Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014, p. 251, para. 56; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68).

85. It is recalled in the Preamble of CERD that

“the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end”.

86. The Court notes that CERD was drafted against the backdrop of the 1960s decolonization movement, for which the adoption of resolution 1514 (XV) of 14 December 1960 was a defining moment (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 132 para. 150). By underlining that “any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere”, the Preamble to the Convention clearly sets out its object and purpose, which is to bring to an end all practices that seek to establish a hierarchy among social groups as defined by their inherent characteristics or to impose a system of racial discrimination or segregation. The aim of the Convention is thus to eliminate all forms and manifestations of racial discrimination against human beings on the basis of real or perceived characteristics as of their origin, namely at birth.

87. CERD, whose universal character is confirmed by the fact that 182 States are parties to it, thus condemns any attempt to legitimize racial discrimination by invoking the superiority of one social group over another. Therefore, it was clearly not intended to cover every instance of differentiation between persons based on their nationality. Differentiation on the basis of nationality is common and is reflected in the legislation of most States parties.

88. Consequently, the term “national origin” in Article 1, paragraph 1, of CERD, in accordance with its ordinary meaning, read in its context and in the light of the object and purpose of the Convention, does not encompass current nationality.

2. The term “national origin” in the light of the travaux préparatoires as a supplementary means of interpretation

89. In light of the conclusion above, the Court need not resort to supplementary means of interpretation. However, the Court notes that both Parties have carried out a detailed analysis of the travaux préparatoires of the Convention in support of their respective positions on the meaning and scope of the term “national origin” in Article 1, paragraph 1, of the Convention. Considering this fact and the Court's practice of confirming, when it deems it appropriate, its interpretation of the relevant texts by reference to the travaux préparatoires (see, for example, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 128, para. 142, and pp. 129–130, para. 147), the Court will examine the travaux préparatoires of CERD in the present case.

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90. According to the UAE, the various drafts of the definition of racial discrimination considered by the negotiators of the Convention did not refer to nationality in the political-legal sense of the term. The Respondent recalls that the amendment jointly proposed by the United States of America and France in the course of the work of the Third Committee of the United Nations General Assembly (hereinafter the “Third Committee”), according to which “the expression ‘national origin’ does not mean ‘nationality’ or ‘citizenship’”, was withdrawn in favour of an amendment adopted as the final text of Article 1. The Respondent adds that this withdrawal was justified by the insertion of paragraphs 2 and 3 into the text of Article 1, which the two countries considered “entirely acceptable”.

91. Qatar, for its part, asserts that the drafters of the Convention sought a broad and comprehensive definition of racial discrimination, which would leave no vulnerable group without protection, and they did not intend to exclude nationality-based discrimination from its scope. According to the Applicant, the fact that the proposed amendments seeking to exclude nationality from the scope of the term “national origin” in the definition of racial discrimination were not adopted confirms that this term encompasses current nationality. As regards the joint amendment of the United States of America and France, which was withdrawn in favour of the current wording of Article 1, Qatar considers that it was in any event limited in scope, since it sought to prevent non-citizens from availing themselves of certain rights reserved for citizens and in no way sought to exclude differentiation based on current nationality from the scope of the Convention. Thus, in Qatar's view, the travaux préparatoires confirm that the scope of the Convention extends to discrimination based on current nationality, in particular where, as in the present case, a State singles out an entire group of non-citizens for discriminatory treatment.

*  *

92. The Court recalls that the Convention was drafted in three stages: first, as part of the work of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (hereinafter the “Sub-Commission”), then within the Commission on Human Rights (hereinafter the “Commission”) and, finally, within the Third Committee.

93. In the view of the Court, the definition of racial discrimination contained in the various drafts demonstrates that the drafters did in fact have in mind the differences between national origin and nationality. The Sub-Commission discussed at length the question whether the definition should refer solely to national origin or should also include nationality. Although some members were in favour of including the term “nationality” in the first draft definition of racial discrimination, this was only for specific cases of States composed of different nationalities. Indeed, several members of the Sub-Commission were of the opinion that the Convention should not seek to eliminate all differentiation based on nationality in the political-legal sense of the term, since in all countries a distinction was made between nationals and aliens. As a result, the draft presented by the Sub-Commission to the Commission did not refer to current nationality as a basis of racial discrimination:

“In this Convention the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, national or ethnic origin (and in the case of States composed of different nationalities discrimination based on such difference) 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 political, economic, social, cultural or any other field of public life set forth inter alia in the Universal Declaration of Human Rights.” (“Draft International Convention on the Elimination of All Forms of Racial Discrimination”, annexed to the Report of the Sixteenth Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights, 13–31 Jan. 1964, UN doc. E/CN.4/873, E/CN.4/Sub.2/241, 11 Feb. 1964, p. 46.)

94. The Court notes that the question of the scope of the term “national origin” arose again during the work of the Commission. The Court observes that it is clear from the Commission's discussions that the expression “national origin” refers not to nationality but to country of origin (United Nations, Commission on Human Rights, Report on the Twentieth Session, held 17 February-18 March 1964, doc. E/3878, E/CN.4/874, pp. 24–25, para. 85). Accordingly, the draft Convention presented by the Commission to the Third Committee contained the following definition of racial discrimination, which sought to exclude nationality from the scope of the term “national origin”:

“In this Convention the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, [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]. [In this paragraph the expression ‘national origin’ does not cover the status of any person as a citizen of a given State.]” (Ibid., p. 111; see also United Nations, Commission on Human Rights, Twentieth Session, Summary Record of the 810th Meeting, held on 13 March 1964, doc. E/CN.4/SR.810, 15 May 1964, p. 5.)

95. It emerges from the discussions within the Third Committee that, although it was ultimately decided to retain the term “national origin” in the text of the Convention, this decision was made only in so far as the term refers to persons of foreign origin who are subject to racial discrimination in their country of residence on the grounds of that origin. Several delegations noted that national origin differs from current nationality.

96. In the Court's view, the fact that the amendment of the United States of America and France was not retained (see paragraph 90 above) cannot support the Applicant's position that the term “national origin” encompasses current nationality (see United Nations, Official Records of the General Assembly, Twentieth Session, Third Committee, “Draft International Convention on the Elimination of All Forms of Racial Discrimination”, doc. A/6181, 18 Dec. 1965, pp. 12–14, paras. 30–37). Although the amendment was withdrawn, 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 (see the compromise amendment presented by Ghana, India, Kuwait, Lebanon, Mauritania, Morocco, Nigeria, Poland and Senegal, UN doc. A/C.3/L.1238). As the Court has noted (see paragraphs 82–83 above), 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” (see the explanations provided by Lebanon in presenting the compromise amendment, United Nations, Official Records of the General Assembly, Twentieth Session, Third Committee, Summary Record of the 1307th Meeting, held on 18 October 1965, doc. A/C.3/SR.1307, p. 95, para. 1 (Lebanon)).

97. The Court concludes that the travaux préparatoires as a whole confirm that the term “national origin” in Article 1, paragraph 1, of the Convention does not include current nationality.

3. The practice of the CERD Committee

98. With regard to the practice of the CERD Committee, the UAE argues that the Committee's opinions and general recommendations do not constitute subsequent practice or agreement of States parties to CERD regarding the interpretation of the Convention. In particular, the Respondent considers that General Recommendation XXX concerning discrimination against non-citizens, adopted by the CERD Committee in 2004, does not constitute an interpretation based on the practice of States parties and that, in any event, it is not intended as a general prohibition of all differential treatment based on nationality. The Respondent further considers that, according to that text, any differential treatment between different groups of non-citizens must be assessed “in the light of the objectives and purposes of the Convention”. Finally, as regards the decisions on jurisdiction and admissibility delivered by the CERD Committee in respect of the communication submitted by Qatar, the Respondent contends that these decisions are in no way binding on the Court and their reasoning with regard to the interpretation of the term “national origin” is insufficient. It adds that these decisions, whereby the Committee held that measures based on the current nationality of Qatari citizens fell within the scope of the Convention, are based on a single criterion, i.e. the Committee's “constant practice”, which is inconsistent with the rules of treaty interpretation as reflected in Articles 31 and 32 of the Vienna Convention.

99. Qatar, for its part, requests that the Court ascribe great weight to the CERD Committee's interpretations of the Convention, in keeping with its jurisprudence relating to committees established under other human rights conventions. The Applicant asserts that the CERD Committee, as the guardian of the Convention, has developed a constant practice whereby differentiation based on nationality is capable of constituting racial discrimination within the meaning of the Convention. It notes, in particular, that the CERD Committee found that it was competent to entertain Qatar's communication concerning the same measures of which it complains in the present case, considering that they were capable of falling within the scope ratione materiae of the Convention. Thus, according to Qatar, differentiation based on nationality can constitute racial discrimination within the meaning of the Convention, in so far as it does not pursue a legitimate aim and is not proportional to the achievement of that aim.

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100. The CERD Committee, in its General Recommendation XXX, considered that “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”. The Committee, a body of independent experts established specifically to supervise the application of CERD, relied on this General Recommendation when it found that it was competent to examine Qatar's communication against the UAE and that this communication was admissible (Decision on the admissibility of the inter-State communication submitted by Qatar against the UAE dated 27 August 2019, United Nations, doc. CERD/C/99/4, paras. 53–63).

101. The Court recalls that, in its Judgment on the merits in the Diallo case, to which reference is made in paragraph 77 above, it indicated that it should “ascribe great weight” to the interpretation of the International Covenant on Civil and Political Rights — which it was called upon to apply in that case — adopted by the Human Rights Committee (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), p. 664, para. 66). In this regard, it also affirmed, however, that it was “in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee” (ibid.). In the present case concerning the interpretation of CERD, the Court has carefully considered the position taken by the CERD Committee, which is specified in paragraph 100 above, on the issue of discrimination based on nationality. By applying, as it is required to do (see paragraph 75 above), the relevant customary rules on treaty interpretation, it came to the conclusion indicated in paragraph 88 above, on the basis of the reasons set out above.

4. The jurisprudence of regional human rights courts

102. Lastly, both Parties referred in their written and oral pleadings to the jurisprudence of regional human rights courts in their arguments on the meaning and scope of the term “national origin”. In this respect, Qatar invokes the jurisprudence of the European Court of Human Rights, the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights, which, it contends, have interpreted the term national origin as including nationality. Moreover, the Applicant refers to this jurisprudence to reiterate that discrimination consists in a difference in treatment without legitimate justification and without a reasonable relationship of proportionality with the aim to be achieved, which in its view is true of the measures at issue in this case. The Applicant adds that the elements of the definition of discrimination adopted by the CERD Committee are exactly the same as those applied in regional human rights instruments and in general international law, and entail an examination of the legitimacy and proportionality of the measures.

103. The UAE disputes the relevance of the jurisprudence of regional human rights courts for the purpose of interpreting the Convention. In its view, the concept of discrimination that has prevailed in general international human rights law has no bearing on the interpretation of CERD, which is concerned solely with racial discrimination.

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104. It is for the Court, in the present case, to determine the scope of CERD, which exclusively concerns the prohibition of racial discrimination on the basis of race, colour, descent, or national or ethnic origin. The Court notes that the regional human rights instruments on which the jurisprudence of the regional courts is based concern respect for human rights without distinction of any kind among their beneficiaries. The relevant provisions of these conventions are modelled on Article 2 of the Universal Declaration of Human Rights of 10 December 1948, according to which

“[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, 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” (see also Article 14 of the European Convention on Human Rights, entitled “Prohibition of discrimination”; Article 1 of the American Convention on Human Rights; and Article 2 of the African Charter on Human and Peoples’ Rights).

While these legal instruments all refer to “national origin”, their purpose is to ensure a wide scope of protection of human rights and fundamental freedoms. The jurisprudence of regional human rights courts based on those legal instruments is therefore of little help for the interpretation of the term “national origin” in CERD.

5. Conclusion on the interpretation of the term “national origin”

105. In light of the above, the Court finds that the term “national origin” in Article 1, paragraph 1, of the Convention does not encompass current nationality. Consequently, the measures complained of by Qatar in the present case as part of its first claim, which are based on the current nationality of its citizens, do not fall within the scope of CERD.

B. The question whether the measures imposed by the UAE on certain Qatari media corporations come within the scope of the Convention

106. In its second claim, Qatar complains that the measures imposed on certain media corporations in the UAE have infringed the right to freedom of opinion and expression of Qataris. According to the Applicant, the UAE has blocked access to news websites and television stations operated by Qatari corporations, including Al Jazeera. In particular, Qatar submits that the effect of closing down Qatari media channels has been to silence sources of independent information that might have mitigated the racially discriminatory messages disseminated as part of anti-Qatari hate speech and propaganda. The Applicant submits that the block on Qatari media has not only directly targeted Qatari corporations, but has also infringed the freedom of expression of Qatari ideas and culture and contributed to the climate of fear experienced by Qataris as a result of their Qatari identity being targeted.

107. The UAE considers that the Applicant's claims in respect of Qatari media corporations do not fall within the scope of the Convention. It submits that corporations are not covered by the Convention, which applies only to natural persons. The UAE further submits that while corporations may have a nationality, they do not have a national origin. In respect of the allegations made by Qatar, the UAE argues that it has a regulatory framework for media activities, which provides for certain content restrictions that allow the authorities to block the websites of media corporations. It is pursuant to this regulatory framework, which applies to all media corporations operating in the UAE, that the Respondent has blocked certain websites of Qatari media corporations.

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108. For the present purposes, the Court will examine only whether the measures concerning certain Qatari media corporations, which according to Qatar have been imposed in a racially discriminatory manner, fall within the scope of the Convention. As to the alleged “indirect discrimination” resulting from the effect of the media block on persons of Qatari national origin, the Court will examine that aspect in its analysis of Qatar's third claim. The Court notes that the Convention concerns only individuals or groups of individuals. This is clear from the various substantive provisions of CERD, which refer to “certain racial or ethnic groups or individuals” (Article 1, paragraph 4), “race or group of persons” (Article 4 (a)), or “individuals or groups of individuals” (Article 14, paragraph 1), as well as its Preamble which refers to racial “discrimination between human beings”. While under Article 2, paragraph 1 (a), of the Convention, “[e]ach State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions”, the Court considers that this reference to “institutions” does not include media corporations such as those in the present case. Read in its context and in the light of the object and purpose of the Convention, the term “institutions” refers to collective bodies or associations, which represent individuals or groups of individuals. Thus, the Court concludes that Qatar's second claim relating to Qatari media corporations does not fall within the scope of the Convention.

C. The question whether the measures that Qatar characterizes as “indirect discrimination” against persons of Qatari national origin fall within the scope of the Convention

109. Qatar submits that the “expulsion order” and “travel bans”, as well as other measures taken by the UAE, have had the purpose and effect of discriminating “indirectly” against persons of Qatari national origin in the historical-cultural sense, namely persons of Qatari birth and heritage, including their spouses, their children and persons otherwise linked to Qatar. According to Qatar, a measure may be considered as “based on” one of the grounds listed in Article 1 if, by its effect, it implicates a protected group. It adds that the Convention prohibits both direct discrimination, where a measure expressly distinguishes on the basis of one of the grounds of racial discrimination, and “indirect discrimination”, where a measure results in such a distinction by its effect. As part of the latter claim, Qatar complains of official statements critical of Qatar, including the 6 June 2017 statement of the Attorney General of the UAE, which mentioned criminal penalties for any expression of sympathy towards Qatar. Qatar adds that the UAE has failed to comply with CERD by encouraging and failing to supress anti-Qatari hate speech and propaganda. The Applicant emphasizes that its complaints are based not on a minimal difference in the treatment of Qatari citizens in the area of immigration controls, but on comprehensive, serious and co-ordinated discriminatory acts resulting in discrimination against persons of Qatari national origin in the historical-cultural sense, in particular on the basis of their traditions, culture, accent or dress.

110. According to the UAE, there is no question of “indirect” racial discrimination in the present case. It adds that this is not how Qatar presented its complaints in its Application instituting proceedings or in its offer to negotiate dated 25 April 2018, which concerned allegedly discriminatory policies directed at Qatari citizens and companies on the sole basis of their Qatari nationality in violation of CERD. It further states that the notion of “indirect discrimination”, in the context of the present Convention, is more specific than in other human rights treaties, since it refers solely to measures which are not discriminatory at face value but are discriminatory in fact and effect. The UAE observes that the 6 June 2017 statement by its Attorney General was made in the context of existing legislation, i.e. Federal Decree-Law No. 5 on Combating Cybercrimes dated 13 August 2012, and that there was no criminalizing of sympathy for Qatar. The UAE submits that the various allegations relating to its failure to suppress statements critical of Qatar or the actions of its Government, even if they were true, do not fall within the scope ratione materiae of the Convention since it does not constitute racial discrimination on the grounds of race, colour, descent, or national or ethnic origin.

*  *

111. The Court recalls that it has already found that the “expulsion order” and “travel bans” of which Qatar complains as part of its first claim do not fall within the scope of CERD, since these measures are based on the current nationality of Qatari citizens, and that such differentiation is not covered by the term “national origin” in Article 1, paragraph 1, of the Convention (see paragraph 105 above). The Court will now turn to the question whether these and any other measures as alleged by Qatar are capable of falling within the scope of the Convention, if, by their purpose or effect, they result in racial discrimination against certain persons on the basis of their Qatari national origin.

112. The Court first observes that, according to the definition of racial discrimination in Article 1, paragraph 1, of CERD, a restriction may constitute racial discrimination if it “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”. Thus, the Convention prohibits all forms and manifestations of racial discrimination, whether arising from the purpose of a given restriction or from its effect. In 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. In the Court's view, the various measures of which Qatar complains 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. The Court further observes that declarations criticizing a State or its policies cannot be characterized as racial discrimination within the meaning of CERD. Thus, the Court concludes 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.

113. It follows from the above that the Court does not have jurisdiction ratione materiae to entertain Qatar's third claim, since the measures complained of therein by that State do not entail, either by their purpose or by their effect, racial discrimination within the meaning of Article 1, paragraph 1, of the Convention.

D. General conclusion

114. In light of the above, the Court concludes that the first preliminary objection raised by the UAE must be upheld. Having found that it does not have jurisdiction ratione materiae in the present case under Article 22 of the Convention, the Court does not consider it necessary to examine the second preliminary objection raised by the UAE. In accordance with its jurisprudence, when its jurisdiction is challenged on diverse grounds, the Court is “free to base its decision on the ground which in its judgment is more direct and conclusive” (Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 24, para. 26; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 17, para. 40; Certain Norwegian Loans (France v. Norway), Judgment, I.C.J. Reports 1957, p. 25).

*

*  *

115. For these reasons,

The Court,

(1) By eleven votes to six,

Upholds the first preliminary objection raised by the United Arab Emirates;

in favour: Vice-President Xue; Judges Tomka, Abraham, Bennouna, Donoghue, Gaja, Crawford, Gevorgian, Salam; Judges ad hoc Cot, Daudet;

against: President Yusuf; Judges Cançado Trindade, Sebutinde, Bhandari, Robinson, Iwasawa;

(2) By eleven votes to six,

Finds that it has no jurisdiction to entertain the Application filed by the State of Qatar on 11 June 2018.

in favour: Vice-President Xue; Judges Tomka, Abraham, Bennouna, Donoghue, Gaja, Crawford, Gevorgian, Salam; Judges ad hoc Cot, Daudet;

against: President Yusuf; Judges Cançado Trindade, Sebutinde, Bhandari, Robinson, Iwasawa.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this fourth day of February, two thousand and twenty-one, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the State of Qatar and the Government of the United Arab Emirates, respectively.

(Signed)  Abdulqawi Ahmed YUSUF,

President.

(Signed)  Philippe GAUTIER,

Registrar.

President YUSUF appends a declaration to the Judgment of the Court; Judges SEBUTINDE, BHANDARI and ROBINSON append dissenting opinions to the Judgment of the Court; Judge IWASAWA appends a separate opinion to the Judgment of the Court; Judge ad hoc DAUDET appends a declaration to the Judgment of the Court.

(Initialled)  A.A.Y.

(Initialled)  Ph.G.

_______________

Declaration of President Yusuf

Majority frames subject-matter of dispute in manner totally disconnected from Applicant's written and oral pleadings — This leads to mischaracterization of subject-matter of dispute — Subject-matter of dispute concerns alleged measures of racial discrimination on basis of “national origin”, not current nationality — Majority should have applied long-standing jurisprudence in identifying subject-matter of dispute — No need for factual assessment of measures complained of by Qatar — Issues of fact are a matter for the merits — Whether “Qataris” form distinct national origin and effects of impugned measures may only be addressed at the merits stage — At this stage Court must only satisfy itself that such measures are “capable of having an adverse effect” on enjoyment of rights protected under Convention — They appear to have that effect in the present circumstances.

I. Introduction

1. I disagree with the conclusions of the Court and the reasoning of the majority on two interrelated issues dealt with in the Judgment: (a) the determination of the subject-matter of the dispute; and (b) the jurisdiction ratione materiae of the Court with regard to what is referred to as “indirect discrimination”.

2. On the first issue, the entire reasoning of the Judgment turns on the concept of “nationality”, without taking adequately into consideration Qatar's claims regarding racial discrimination on the basis of “national origin”. By focusing almost exclusively on the question of nationality, the formulation of the object of the claim chosen by the Applicant is ignored, leading to the mischaracterization of the subject-matter of the dispute. As discussed below, this approach is inconsistent with the jurisprudence of the Court on the determination of the subject-matter of the dispute.

3. Secondly, apart from the fact that the above mischaracterization results in an erroneous conclusion on the jurisdiction of the Court, the majority also finds that some of the measures complained of by Qatar, which are referred to as “indirect discrimination” in the Judgment, do not fall within the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “CERD” or the “Convention”), even if they have the purpose or effect of nullifying or impairing the rights and freedoms of persons of Qatari national origin. There is, however, no meaningful analysis in the Judgment to support such a statement.

II. The subject-matter of the dispute

4. Qatar has consistently claimed that the measures adopted on 5 June 2017 by the United Arab Emirates (hereinafter the “UAE”) against Qataris amount to a “distinction, exclusion, restriction or preference based on . . . national . . . origin” both in purpose and in effect within the meaning of Article 1, paragraph 1, of CERD. In its Application, Qatar argued that “[t]he UAE has enacted and implemented a series of discriminatory measures directed at Qataris based expressly on their national origin” (AQ, para. 3; see also paras. 34, 44, 54, 58, 62–63, 65 (a) and 66 (a)); that the “blanket expulsion of Qataris from the UAE and the ban on entry by Qataris into the UAE discriminate against Qataris on the basis of national origin” (AQ, para. 59); that “[t]he UAE has also enacted various measures interfering with rights to property based on Qatari national origin” (AQ, para. 44; see also para. 63); and that “[t]he UAE has . . . unlawfully targeted Qataris on the basis of their national origin” (AQ, para. 54).

5. Similar statements are made by the Applicant in its Memorial and in its Written Statement, clarifying that its claims were predicated on “national origin” both in purpose and in effect (MQ, paras. 1.2, 1.8, 1.11–1.13, 1.15, 1.23, 1.25, 3.5, 3.21, 3.24 and 3.86 to 3.113), and alleging that the measures adopted by the UAE were “discriminatory in both purpose and effect, by intentionally targeting and having a disproportionately negative impact on persons of Qatari ‘national origin’ in the historical-cultural sense, irrespective of their present nationality” (WSQ, para. 1.18). Moreover, during the oral proceedings, Qatar explained that it “has from the beginning framed its case as one of discrimination ‘based on’ national origin, including in the sense of intentional targeting and of disparate impact” (CR 2020/7, p. 45, para. 40 (Amirfar)).

6. Instead of paying particular attention to the above formulation of the dispute by the Applicant, as the Court has always done in determining the subject-matter of the dispute, the majority frames the subject-matter of the dispute in a manner totally disconnected from the Applicant's written and oral pleadings. For example, after quoting paragraph 2.6 of Qatar's Written Statement, which refers to acts and omissions of the UAE that “discriminate against Qataris on the basis of national origin” (paragraph 44 of the Judgment), the Judgment surprisingly states that “[a]s can be seen from Qatar's characterization of the subject-matter of the dispute (see paragraph 44 above), Qatar makes three claims of racial discrimination” (paragraph 56 of the Judgment). The Judgment then proceeds to make an artificial classification of Qatar's claims, the first category of which is purportedly a “claim arising out of the ‘travel bans’ and ‘expulsion order’, which make express reference to Qatari nationals” (ibid.). However, the text of Qatar's Written Statement, quoted in paragraph 44 of the Judgment, and to which reference is made in paragraph 56, does not mention even once the word “nationality”, while it clearly explains that the alleged acts and omissions of the UAE discriminate against Qataris “on the basis of national origin”. Nor does this text provide a basis for the classification of Qatar's claims into the three categories indicated in the Judgment.

7. It is true that Qatar argued in its pleadings that the concept of “national origin” in Article 1, paragraph 1, of CERD encompasses discrimination based on nationality. Qatar based such interpretation on General Recommendation XXX of the CERD Committee, which reads as follows:

“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.” (CERD Committee, General Recommendation XXX on discrimination against non-citizens, United Nations, doc. CERD/C/64/Misc.11/rev. 3 (2005), para. 4.)

8. In General Recommendation XXX, the CERD Committee seems to suggest that a measure that seeks to differentiate between individuals on the basis of their current nationality might, deliberately or inadvertently, have a disproportionately adverse impact on a group of people having a common “national or ethnic origin”, taking into account the objective underlying that measure and the criteria chosen for differentiation, or may not be applied pursuant to a legitimate aim, in which case it would constitute discrimination under CERD.

9. The Court may endorse such interpretation or may decide, as the majority appears to favour in the present Judgment, that the term “national origin” cannot encompass measures predicated on current nationality. In either case, it cannot be held, on the basis of the written and oral pleadings of the Applicant, that the claims of Qatar mostly relate to racial discrimination on grounds of current nationality, and that consequently they fall outside the scope of the Convention as such. The content of those pleadings clearly indicates otherwise.

10. The insistence of the majority on characterizing the subject-matter of the dispute in a manner which does not take into consideration the actual formulation put forward by the Applicant in its written and oral pleadings departs from a long-standing jurisprudence of the Court referred to in paragraph 42 of the Judgment itself. According to this jurisprudence, it is for the Court to determine on an objective basis the subject-matter of the dispute between the Parties, “while giving particular attention to the formulation of the dispute chosen by the applicant” (Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 26; Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 848, para. 38; Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 448, para. 30).

11. Had the majority applied this jurisprudence to the present case, it would have come to the conclusion that the subject-matter of the dispute relates to “the interpretation or application” of CERD, and that Qatar's claims fall squarely within the scope of Article 1, paragraph 1, of the Convention, since those claims concern alleged measures of racial discrimination on grounds of “national origin”.

III. The jurisdiction of the Court with regard to “indirect discrimination”

12. According to the artificial classification of Qatar's claims mentioned above (paragraph 6), the only claim that is described as relating to discrimination on grounds of national origin is the so-called claim of “indirect discrimination”, as opposed to “direct” discrimination on the basis of nationality; a distinction which has no basis in the text of the Convention. However, even in the case of this claim, the majority concludes that,

“In 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. In the Court's view, the various measures of which Qatar complains 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. The Court further observes that declarations criticizing a State or its policies cannot be characterized as racial discrimination within the meaning of CERD. Thus, the Court concludes 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 of the Judgment.)

The reasons of my disagreement with this sweeping statement are set out below.

13. First, it is rather odd to find in a judgment on preliminary objections an attempt at a factual assessment of whether the measures complained of actually constitute racial discrimination under CERD. In a very recent judgment of the Court dealing also with jurisdiction ratione materiae under CERD, it was clearly stated as follows:

“In order to determine whether it has jurisdiction ratione materiae under CERD, the Court does not need to satisfy itself that the measures of which Ukraine complains actually constitute ‘racial discrimination’ within the meaning of Article 1, paragraph 1, of CERD. Nor does the Court need to establish whether, and, if so, to what extent, certain acts may be covered by Article 1, paragraphs 2 and 3, of CERD. Both determinations concern issues of fact, largely depending on evidence regarding the purpose or effect of the measures alleged by Ukraine, and are thus properly a matter for the merits, should the case proceed to that stage.” (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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 595, para. 94.)

In the present case, however, issues of fact, which are normally a matter for the merits, appear to be summarily dismissed in a single paragraph at the jurisdictional stage of the proceedings.

14. Secondly, the majority offers no meaningful analysis to support the above-mentioned statement. The question whether or not the term “Qatari” is to be understood solely as synonymous to “current nationality” or as indicating “national origin”, or both, and whether as a consequence measures targeting “Qataris” come within the ambit of Article 1 of CERD, is a question of fact that should be addressed at the merits stage. In this connection, it is to be noted that the majority does not even acknowledge — let alone examine — the Expert Report adduced by the Applicant to establish that “Qataris” form, apart from a legal nationality, a socio-cultural national group distinct from the Emiratis (cf. MQ, paras. 3.94–3.112; MQ, Vol. VI, Ann. 162, Expert Report of Dr. J. E. Peterson dated 9 April 2019, paras. 28–30; WSQ, para. 2.121).

15. Thirdly, the “Court's view” cannot simply be asserted. It needs to be based on legal and factual analysis. This is not the case here. The fact that Article 1, paragraph 1, of CERD distinguishes between “purpose” and “effect” suggests that, under CERD, discrimination may also derive from the collateral effects of the measure on a particular group, without having to establish a discriminatory purpose or intent. As the CERD Committee observed in its General Recommendation No. XIV,

“particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.” (CERD Committee, General Recommendation No. XIV on Article 1, paragraph 1, of the Convention, para. 2, in United Nations doc. A/48/18 (1993), p. 115.)

16. Thus, a measure may amount to de facto racial discrimination when it has a disproportionate effect on a group of people having a common “national or ethnic origin”, regardless of whether that measure was intended to target a particular “nationality”. This is essentially a question of fact and may only be established after having heard both Parties in the merits phase. It cannot be used at this stage of the proceedings to justify a finding that the measures complained of by Qatar fall outside of the scope of the jurisdiction of the Court, particularly when they are alleged to have the purpose or effect of nullifying or impairing the rights and freedoms of persons of Qatari national origin.

17. The determination of the jurisdiction of the Court ratione materiae does not require the Court to satisfy itself at this preliminary stage that the measures complained of by the Applicant constitute racial discrimination within the meaning of Article 1, paragraph 1, of the Convention. What matters is whether the measures complained of by Qatar “are capable of having an adverse effect on the enjoyment of certain rights protected under CERD” (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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 595, para. 96; see also Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 820, para. 51).

18. It is my view that the measures complained of by Qatar were capable of having such an adverse effect on persons of Qatari national origin, and that the Court should have left the examination of the actual effect of these measures for the merits stage.

(Signed) Abdulqawi A. YUSUF.

__________________

DISSENTING OPINION OF JUDGE SEBUTINDE

The first preliminary objection of 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 79ter, paragraph 4, of the Rules of Court — In particular, 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 — Secondly, the preconditions referred to in Article 22 of the CERD are in the alternative and are not cumulative — The wording of Article 22 of the CERD does not expressly require a party to exhaust the CERD procedures before that party can unilaterally seise the Court — Both Parties acknowledge that the CERD Committee and the Court have related but fundamentally distinct roles relating to resolving disputes between States parties to the CERD — The Committee's role is conciliatory and recommendatory, while that of the Court is legal and binding — Accordingly, the second preliminary objection should be rejected as there is nothing incompatible about Qatar pursuing the two procedures in parallel — Thirdly, according to the Court's well-established jurisprudence, a claim based upon a valid title of jurisdiction cannot be challenged on grounds of “abuse of process” unless the high threshold of “exceptional circumstances” has been met — The UAE has not met that threshold — Qatar's Application is therefore admissible and the third preliminary objection of the UAE should be rejected.

I. Introduction

1. 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 79ter, 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.)

2. In my view, the majority should not have rushed to conclude that Qatar's claims fall outside the scope of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “the CERD”) based on the pleadings of the Parties at this early stage of the proceedings, but should have carefully examined the evidence during the merits stage, before reaching a conclusion one way or the other. In particular, 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. Because of the approach taken by the majority, it is regrettable that the other objections raised by the UAE were also not considered. In this separate opinion, I endeavour to show why the first preliminary objection of the UAE does not, in the circumstances of the present case, have an exclusively preliminary character and should instead, be joined to the merits. I also opine on the other preliminary objections raised by the UAE.

II. The submissions of the Parties

A. Qatar's claims and requests

3. 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:

  1. (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;

  2. (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;

  3. (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

  4. (d) Failing to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions.Footnote 1

4. Accordingly, Qatar respectfully requests the Court to order the UAE to take all steps necessary to comply with its obligations under the CERD and, inter alia:

  1. (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;

  2. (b) Immediately cease all other measures that incite discrimination (including media campaigns and supporting others to propagate discriminatory messages) and criminalize such measures;

  3. (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;

  4. (d) Refrain from taking any further measures that would discriminate against Qataris within its jurisdiction or control;

  5. (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;

  6. (f) Provide assurances and guarantees of non-repetition of the UAE's illegal conduct; and

  7. (g) Make full reparation, including compensation, for the harm suffered as a result of the UAE's actions in violation of the CERDFootnote 2.

5. In its Memorial, Qatar in its own right and as parens patriae of its citizens, respectfully requests the Court to adjudge and declare that the UAE, by the acts and omissions of its organs, agents, persons, and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control, is responsible for violating its obligations under Articles 2, 4, 5, 6 and 7 of the CERD, including by:

  1. (a) Expelling, on a collective basis, all Qataris from the UAE;

  2. (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;

  3. (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

  4. (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.

6. Qatar further requests the Court to adjudge and declare that the UAE has violated the Court's Order on Provisional Measures of 23 July 2018; and that the UAE is obligated to cease its ongoing violations, make full reparations for all material and moral damage caused by its internationally wrongful acts and omissions under the CERD, and offer assurances and guarantees of non-repetition.

7. Accordingly Qatar requests the Court to order that the UAE:

  1. (a) Immediately cease its ongoing internationally wrongful acts and omissions in contravention of Articles 2 (1), 4, 5, 6 and 7 of the CERD;

  2. (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

  3. (c) Provide Qatar with assurances and guarantees of non-repetition in written form.

B. The preliminary objections of the UAE

8. The UAE raised three preliminary objections against the jurisdiction of the Court and the admissibility of Qatar's claims, namely that:

  1. (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”Footnote 3;

  2. (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 CERDFootnote 4; and

  3. (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 inadmissibleFootnote 5.

III. The Court's jurisdiction under Article 22 of the CERD

9. Article 22 of the CERD provides as follows:

“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.)

10. In light of the written and oral arguments raised by the Parties, a determination of whether or not the Court has jurisdiction ratione materiae to entertain the claims of Qatar pursuant to Article 22 of the CERD depends on the determination of the following factors, namely:

  1. (a) What is the subject-matter of the dispute between Qatar and the UAE?

  2. (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?

  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?

  4. (d) Lastly, are the claims of Qatar admissible?

I will briefly examine each of these in turn, starting with the first.

A. The subject-matter of the dispute between Qatar and the UAE

11. 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”Footnote 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 claimFootnote 7. 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 partiesFootnote 8.

12. Taking into account the dispute as formulated in Qatar's Application, the object of Qatar's claims, the jurisdictional basis upon which those claims are based, and the written and oral pleadings of the Parties, the subject-matter of the dispute is whether the UAE by taking the measures that it did on 7 June 2017 and subsequently, against Qatar and Qataris, violated its obligations under the CERD.

B. Whether the dispute falls within the scope ratione materiae of the CERD

13. 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.

14. The Court has stated in Oil Platforms Footnote 9 and in Certain Iranian Assets Footnote 10 that, in order to determine the Court's jurisdiction ratione materiae under a jurisdictional clause concerning disputes relating to the interpretation or application of a treaty, it is necessary to ascertain whether the acts of which the applicant complains “fall within the provisions” of the treaty containing the clause. At the jurisdictional stage of the proceedings, a detailed examination by the Court of the alleged wrongful acts of the respondent or of the plausibility of the applicant's claims is not warranted. The Court's task, as reflected in Article 79 of the Rules of Court, is to consider the questions of law and fact that are relevant to the objection to its jurisdictionFootnote 11.

15. In the present case, the Court has already stated in its Provisional Measures Order of 23 July 2018 that:

“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.”Footnote 12

At this stage, I see no reason for the Court to depart from its earlier position.

C. Alternatively, whether Qatar's claims fall outside the scope of the CERD by virtue of the exceptions contemplated in Article 1, paragraphs 2 or 3

16. 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).

17. 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”.

18. 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.”

19. The Court has stated in Ukraine v. Russia that in order to determine whether it has jurisdiction ratione materiae under the CERD, it does not need to satisfy itself that the measures of which the applicant complains actually constitute “racial discrimination” within the meaning of Article 1, paragraph 1, of the CERD; nor does the Court need to establish if and to what extent, certain acts may be covered by Article 1, paragraphs 2 and 3, of the CERD. Both determinations concern issues of fact, largely depending on evidence regarding the purpose or effect of the measures alleged by the applicant, and are thus properly a matter for the merits, should the case proceed to that stage. At the current stage of the proceedings, the Court only needs to ascertain whether the measures complained of by Qatar target a protected group on the basis of national or ethnic origin and whether those measures are capable of negatively affecting the enjoyment of rights protected under the ConventionFootnote 13.

20. 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 rebuttedFootnote 14. 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.

21. At an earlier stage of these proceedings, the Court, when examining the plausibility of the rights claimed by Qatar, noted that:

“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.”Footnote 15

22. At this jurisdictional stage of the proceedings, I see no reason to depart from the Court's earlier finding that at least some of the acts of which Qatar complains are capable of constituting acts of racial discrimination as defined by the Convention. Qatar's claims therefore fall within the scope ratione materiae of CERD. In this regard, I am of the considered view that the approach of the majority whereby the jurisdiction ratione materiae of the Court turns on a theoretical definition or analysis of the term “national origin” without taking into account the facts and evidence adduced by Qatar in support of its claims (see paragraphs 75 to 105) is not in the interests of justice. Similarly, the issues discussed in paragraphs 109 to 110 pertaining to the measures that Qatar characterizes as “indirect discrimination” are issues that should have been properly examined during the merits stage in light of the facts, evidence and arguments of the Parties, before drawing the conclusion that these claims fall outside the scope ratione materiae of the Court's jurisdiction.

23. Regarding the UAE's preliminary objection based on its argument that Qatar's claims fall under the exceptions stipulated under Article 1 (2) and therefore outside the scope ratione materiae of the CERD, I am of the considered view that this objection does not possess an exclusively preliminary character and can only be properly determined after a detailed examination of the evidence during the merits stage.

24. This brings me to the second preliminary objection of the UAE, namely that Qatar did not fulfil the procedural requirements of Article 22 of the CERD before seising the Court.

D. Whether Qatar fulfilled the procedural requirements of Article 22 of the CERD or, alternatively, whether the Parties agreed to another mode of settling their dispute, before seising the Court

25. In order to answer this question, the Court must address whether Qatar satisfied one of the procedural requirements stipulated in Article 22 before seising the Court. Alternatively, in the event that Qatar chose more than one mode of dispute settlement (namely, negotiations, CERD procedures and judicial settlement), the Court must determine whether the Applicant is obliged to exhaust negotiations and the CERD procedures before seising the Court.

26. 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 cumulativeFootnote 16. 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’. Articles 4 and 7 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.”

27. In the present case, the Parties did pursue the procedures before the CERD Committee and the Conciliation Commission pursuant to Articles 11 to 13 of the CERD. The question is therefore whether Qatar should have exhausted the preconditions of bilateral negotiations and of conciliation before the CERD Committee, before resorting to judicial settlement.

28. It will also be recalled that Qatar founded the Court's jurisdiction on the basis of the failed bilateral negotiations envisaged under Article 22, rather than on the exhaustion of the CERD procedures initiated by Qatar on 8 March 2018Footnote 17 pursuant to Article 11. Regarding the precondition of bilateral negotiations, the Court has in the present case already found in its Provisional Measures Order of 23 July 2018 as follows:

“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.”Footnote 18

29. Qatar clearly satisfied the precondition of bilateral negotiation before seising the Court. In view of the above, the Court should determine whether in fact Qatar was obliged to exhaust the other procedures expressly provided for in the Convention before seising the Court.

E. Whether Qatar was obligated to exhaust the Conciliation Commission procedures before seising the Court

30. It is not disputed that Qatar referred its claims against the UAE to the CERD Committee before seising the Court. The CERD Committee in turn referred the Parties’ dispute to the Conciliation Commission and to date the processes before that Commission are ongoing and have not been concluded. Both Parties claim that they are fully engaged in those processes “in good faith”. Unlike the bilateral negotiations referred to in the earlier part of Article 22 of the CERD, the procedures before the Conciliation Commission are tripartite and conciliatory. In its oral arguments, the UAE maintained that Qatar was obligated to first exhaust the processes before the Conciliation Commission before seising the Court. Citing the principles of lis pendens Footnote 19 and electa una via Footnote 20, the UAE argues that there remains the possibility of the two processes (conciliation and judicial settlement) yielding contradictory outcomes, and that therefore Qatar should have waited “to determine whether or not the Conciliation Commission procedures had resulted in a settlement of the dispute” before pursuing judicial settlementFootnote 21.

31. The wording of Article 22 of the CERD does not expressly require a party to exhaust the CERD procedures before that party can unilaterally seise the Court. The wording of that Article cannot be compared, for example, to Article IV of the Pact of Bogotá, which provides that: “Once any pacific procedure had been initiated, whether by agreement between the parties or in fulfillment of the present Treaty or a previous pact, no other procedure may be commenced until that procedure is concluded.” (Emphasis added.)

32. Both Parties acknowledge that the CERD Committee and the proceedings before the Court have related but fundamentally distinct roles relating to resolving disputes between States parties to the CERD. The Committee's role is conciliatory and recommendatory, while that of the Court is legal and binding. Accordingly, there is nothing incompatible about Qatar pursuing the two procedures in parallel.

33. Furthermore, the Court stated in its Provisional Measures Order of 23 July 2018, regarding the second precondition of “other procedures expressly provided for in the Convention” as follows:

“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.”Footnote 22 (Emphasis added.)

34. In my view therefore, Qatar was not obligated to exhaust the Conciliation Commission processes before seising the Court. I would therefore dismiss the second preliminary objection of the UAE. This brings me to the third preliminary objection of the UAE, namely whether Qatar's claims are inadmissible on grounds of alleged abuse of process by Qatar.

F. Whether Qatar's claims are inadmissible on the grounds that Qatar has committed abuse of process

35. During the oral proceedings the UAE abandoned its third preliminary objection pertaining to “abuse of process.”Footnote 23 However, according to the Court's well-established jurisprudence, a claim based upon a valid title of jurisdiction cannot be challenged on grounds of “abuse of process” unless the high threshold of “exceptional circumstances” has been met. In my view, Qatar's alleged abuse of process should not be easily assumed in the absence of clear proof of any exceptional circumstances pointing to such abuse. Qatar's claims are admissible and the third preliminary objection should have been rejected.

IV. Conclusion

36. In conclusion, the first preliminary objection of the UAE does not possess an exclusively preliminary character and should be joined to the merits. The second and third preliminary objections of the UAE should be dismissed and the Court should find that it has jurisdiction and that Qatar's claims are admissible.

(Signed)  Julia SEBUTINDE.

DISSENTING OPINION OF JUDGE BHANDARI

The subject-matter of the dispute — Article 22 of CERD and the Court's jurisdiction ratione materiae — Interpreting the term “national origin” contained in Article 1, paragraph 1, of CERD pursuant to the customary rules on treaty interpretation — The term “national origin” under Article 1, paragraph 1, of CERD encompasses current nationality — The provisions which form the context of Article 1, paragraph 1, of CERD in light of the object and purpose of CERD — The travaux préparatoires of CERD and the exclusion of amendments which had the effect of excluding nationality from the purview of “national origin” in Article 1, paragraph 1, of CERD — The CERD Committee and its General Recommendation XXX.

1. Regrettably I disagree with the finding in the Judgment which upholds the first preliminary objection raised by the United Arab Emirates (hereinafter “UAE”) and finds that the Court has no jurisdiction to entertain the Application filed by the State of Qatar (hereinafter “Qatar”). In my view, the discriminatory measures allegedly promulgated by the UAE against Qatar and Qatari nationals are capable of falling within the scope of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (hereinafter “CERD” or the “Convention”). With great respect to the views expressed in the Judgment, I endeavour to explain the reasoning behind my decision not to concur with the majority.

A. Subject-matter of the dispute between Qatar and the UAE

2. The case of Qatar is based on a series of measures taken by the UAE against Qatar, Qatari nationals and individuals of Qatari national origin on 5 June 2017 and the days that followedFootnote 1. These measures, which were accompanied by the severing of diplomatic relations with Qatar, fell within the following categories:

  1. (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;

  2. (b) closure of land borders, airspace and seaports of the UAE to all Qatari nationals and Qatari means of transportation; and

  3. (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”Footnote 2.

3. It is recalled that the Court is to objectively determine the subject-matter of the dispute while giving particular attention to the formulation of the dispute chosen by the Applicant, identifying the object of those claims, and taking into consideration the written and oral pleadings of the PartiesFootnote 3. Accordingly, the disagreement between Qatar and the UAE, with respect to the UAE's alleged violation of obligations under CERD fall under three heads of claims which form the subject-matter of the dispute as follows:

  1. (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;

  2. (b) the second is the claim by Qatar arising out of the restrictions on Qatari media corporations; and

  3. (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.

4. 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”Footnote 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.”

5. Qatar has consistently claimed that the alleged acts of the UAE amount to a “distinction, exclusion, restriction or preference based on . . . national . . . origin” within the meaning of Article 1, paragraph 1, of CERDFootnote 5 and thus within the compromissory clause contained in Article 22 of CERD. The UAE, on the other hand, argues there is a crucial jurisdictional flaw in the case, that these measures differentiate between individuals on the basis of their current nationality, which is not included within the scope of the term “national origin” in Article 1, paragraph 1, of CERDFootnote 6. In its first preliminary objection to the jurisdiction of the Court, the UAE argues that the dispute falls outside of the scope ratione materiae of CERD.

6. Accordingly, at this preliminary stage, the Court is called upon to interpret whether the term “national origin”, as contained in Article 1, paragraph 1, of CERD, encompasses current nationality.

B. The term “national origin” under Article 1, paragraph 1, of CERD in accordance with its ordinary meaning

7. 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”Footnote 7.

8. 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.”

9. In its attempt to distinguish between “nationality” and “national origin”, the majority highlights the immutable nature of the meaning of “national origin” and frames it in opposition to the transient nature of the meaning of “nationality”. In doing so, the majority attempts to allude that the two terms are fundamentally disparate. As a result of this approach, the Judgment insufficiently delineates the ordinary meaning of the term “national origin” and thereby reaches no real consensus on its meaning for the reasons set out below.

10. 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”Footnote 8, or that argued by the UAE, that is of an “association with a nation of people, not a State”, which is distinct from nationalityFootnote 9. 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.

11. Furthermore, the Judgment's attempt to distinguish between “nationality” and “national origin” becomes more complex and difficult to differentiate on the basis of immutability in the context of countries where nationality is based on jus sanguinis. Where nationality follows a jus sanguinis model, as is the case in many Gulf States, nationality coincides with national origin. Under the jus sanguinis model, in Qatar, “nationality is conferred by parentage — and naturalization is rare . . . the vast majority of Qatari nationals, including those affected by the measures, were born Qatari nationals and are Qatari in the sense of heritage — in other words, of Qatari ‘national origin’”Footnote 10. Nationality in this context is as immutable as “national origin” and is a characteristic that is inherent at birth contrary to the Court's assertion in paragraph 81. When the UAE adopted measures targeting “Qatari residents and visitors” and “Qatari nationals”, they inevitably also affected persons of Qatari national origin since Qatari nationals are primarily persons of Qatari heritage.

C. The context of Article 1, paragraph 1, of CERD

12. The ordinary meaning of a term in a treaty is to be determined in light of its context and not in the abstractFootnote 11. 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”.

13. I find it difficult to concur with a contextual reading that allows differentiation between citizens and non-citizens, as well as particular groups of non-citizens on the basis of their current nationality. If one is to pay close attention to Article 1, paragraphs 2 and 3, of CERD — the provisions which form the context of Article 1, paragraph 1, of CERD — they do not seem to envisage broad and unqualified distinctions to be drawn between citizens and non-citizens.

14. Article 1, paragraph 1, of CERD provides a broad definition of racial discrimination which includes discrimination based on “national origin”. The plain text of CERD makes it clear that this definition is to protect against “all forms” of racial discrimination. Article 1, paragraph 2, in functional terms, establishes an exception to the broader principle contained in Article 1, paragraph 1, of CERD, by permitting a distinction to be drawn between citizens and non-citizens. However, this exception is limited by the object and purpose of the Convention, as made clear in its preamble and operative provisions, to eliminate racial discrimination in all its forms and manifestations. This object and purpose cannot be furthered if States are permitted to draw broad and unqualified distinctions as have been drawn by the UAE through its measures vis-à-vis Qataris, Qatari nationals, residents and visitors. Second, Article 1, paragraph 3, establishes a further exception to Article 1, paragraph 1. Article 1, paragraph 3, while implicating the treatment of non-citizens, clarifies that a State can dictate how, in particular, non-citizens acquire or lose its nationality; however, it reinforces the aforesaid reading of the Convention through the explicit indication in its proviso that “such provisions [should] not discriminate against any particular nationality”.

15. Therefore, the context makes it clear that — even though nationality-based distinctions are specifically permitted by paragraphs 2 and 3 of Article 1 which permit distinctions between citizens and non-citizens — it cautions that even in making such permitted distinctions, “such provisions [should] not discriminate against any particular nationality” when considering non-citizens inter se. In my view, only such an interpretation would be consistent with the object and purpose of CERD to “eliminat[e] racial discrimination throughout the world in all its forms and manifestations”. To interpret “national origin” as entirely excluding nationality-based discrimination would, on the other hand, lead to absurd results.

D. The travaux préparatoires of CERD

16. 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’”.

17. The travaux préparatoires makes it clear that the term “national origin” should have a wider application than that envisaged by the majority in paragraph 96. The Judgment does not touch upon the fact that the nine-power compromise proposal, highlighted in this paragraph, was the result of the deliberate exclusion of certain proposed amendments which had the effect of excluding nationality from the purview of “national origin”. The debate on the term “national origin” indicates that the drafters of the Convention leaned towards rejecting the approach of excluding differential treatment on the basis of nationality from the purview of Article 1, paragraph 1, of CERD. The delegate of the United States of America for instance stated that “[n]ational origin differed from nationality in that national origin related to the past — the previous nationality or geographical region of the individual or his ancestors — while nationality related to the present status”Footnote 12. The delegate of France explained the specific meaning attributed to the word “nationality” in French legal terminology; that it was strictly understood to “cover all that concerned the rules governing the acquisition or loss of nationality and the rights derived therefrom”Footnote 13. In the Third Committee of the United Nations General Assembly, the delegate of France, along with the United States of America, suggested an amendment which excluded the word nationality from the purview of the term “national origin”. If that joint amendment had been adopted, Article 1, paragraph 2, would have read as follows: “[i]n this Convention the expression ‘national origin’ does not mean, ‘nationality’ or ‘citizenship’, and the Convention shall therefore not be applicable to distinctions, exclusions, restrictions, or preferences based on differences of nationality of citizenship”Footnote 14. The amendments proposed were all withdrawn subsequently in favour of a compromise which formed the final text of paragraphs 1, 2, and 3 of Article 1 of CERD.

18. Certain arguments during the debates of the Commission on Human Rights highlights the compromise that the meaning of “national origin” represents. The delegate of Lebanon argued that “[t]he convention should apply to nationals, non-nationals, and all ethnic groups, but it should not bind States parties to afford the same political rights to non-nationals as they normally granted to nationals”Footnote 15. The delegate of India proposed the deletion of the words “the right of everyone” in Article V, instead of altering the definition of “national origin”. This was for the purpose of leaving it for the States to decide for themselves whether the same guarantees were to be afforded to aliens and nationalsFootnote 16.

19. The drafter's rejection of the approach that excluded nationality-based discrimination in Article 1, paragraph 1, indicates that CERD's inclusion of “national origin” protects against discrimination on the basis of current nationality. The rejection of the amendment proposed by France and the United States of America, which narrowed the definition of racial discrimination in Article 1, paragraph 1, indicates that the drafters adopted an approach whereby citizens and non-citizens were to be guaranteed the same rights, notwithstanding certain exceptions outlined in Article 1, paragraph 2, and Article 1, paragraph 3. It is particularly telling that this compromise was accepted by France and the United States of America as “entirely acceptable”. Such acceptance coupled with a reading of the travaux préparatoires as a whole makes it clear that the compromise does not indicate that nationality was to be left out of the scope of “national origin”; in fact, it only seems to allow States to reserve certain rights to their citizens.

20. In light of the foregoing, in my view, the ordinary meaning of the term “national origin” encompasses one's nationality, including current nationality. The ordinary meaning in its context in light of CERD's object and purpose to eliminate “all forms” of racial discrimination converges to confirm that the term “national origin” encompasses current nationality. An interpretation that categorically excludes current nationality would undermine this object and purpose. Considering the fundamental ambiguity resulting from the approach adopted by the majority to determine the ordinary meaning, the travaux préparatoires reinforces the conclusion that CERD's definition of racial discrimination should have a wide application. The travaux préparatoires thus confirms the ordinary meaning of “national origin” as encompassing current nationality.

E. The CERD Committee and its General Recommendation XXX, paragraph 4

21. In relation to the CERD Committee and its General Recommendation XXX, paragraph 4, the majority cites the Court's observation in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), p. 664, para. 66 (hereinafter “Diallo”) that it 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” and does not take into account the observation that it “should ascribe great weight” to interpretations by the independent body established for the purpose of supervising the application of the treaty concerned. The Judgment provides no compelling reason as to why it has chosen to depart from the reasoning in Diallo in this dispute, despite the fact that the CERD Committee remains “the guardian of the Convention” — an assertion that both Parties appear to agree on. The functions carried out by the CERD Committee and the manner in which they are carried, as well as the composition of the Committee and its members offer insights as to why the majority should have taken account of General Recommendation XXX, paragraph 4.

22. 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 1970Footnote 17. 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.

23. 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 changeFootnote 18. 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”Footnote 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”Footnote 20.

24. I am therefore obliged to conclude that, since the Court ascribed great weight to the interpretations of the ICCPR by the Human Rights Committee, the body of independent experts that monitors the implementation of the ICCPR by its States parties; there is no compelling reason for the Court not to have attached “great weight” to General Recommendation XXX, paragraph 4, of the CERD Committee, the independent body of experts established specifically to supervise the application of CERD. The necessity to consider General Recommendation XXX, paragraph 4, of the CERD Committee is reinforced by the observation in Diallo that “[t]he point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled”Footnote 21.

25. Furthermore, in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 179–180, paras. 109–112 — (hereinafter “Construction of a Wall”) — while quoting from Human Rights Committee General Comment 27, paragraph 14, the Court stated that, the restrictions to the freedom of movement in Article 12, paragraph 3, of the ICCPR, “[a]s the Human Rights Committee put it”, “must conform to the principle of proportionality” and “must be the least intrusive instrument amongst those which might achieve the desired result”Footnote 22. The Court thereby acknowledged that the derogatory measure in question had to be proportionate to the achievement of a legitimate aim. The principle of proportionality is found in all global and regional human rights instrumentsFootnote 23. It is also enshrined in the national constitutions of numerous States. It is generally couched in terms of requiring a justification from States for derogation from a fundamental human right or freedom. Such derogation ought to serve a legitimate aim and should be proportional to the achievement of that aim. General Recommendation XXX, paragraph 4, reflects this widely accepted principle. Considering its widespread acceptance, including in the Court's own jurisprudence in Construction of a Wall, there appears to be no reason to disregard its application in the present case.

26. 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.

27. 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.

28. The UAE announced a series of measures with specific application to Qataris on the basis of their nationality and with the specific purpose of using such measures to “induc[e] Qatar to comply with its obligations under international law”. Accordingly, if nationality is determined to be a prohibited basis of discrimination under Article 1, paragraph 1, of CERD, distinctions on this basis are capable of falling within the provisions of CERD, when they do not fulfil “a legitimate aim, and are not proportional to the achievement of this aim”. The stated purpose of using such measures to induce compliance with unrelated treaty obligations appears neither legitimate nor proportionate, given the fundamental human rights claimed to have been affected. The alleged acts by the UAE thus disproportionately affect Qatari nationals and satisfy the conditions for exercise of the Court's jurisdiction ratione materiae under Article 22 of CERD.

29. In light of the foregoing, in my considered opinion, CERD encompasses discrimination against a particular group of non-nationals on the basis of their current nationality, within the prohibition on discrimination based on “national origin” in Article 1, paragraph 1. As such, the measures adopted by the UAE which disproportionately affected individuals of Qatari nationality by explicitly discriminating against “Qatari nationals” and “Qatari residents and visitors” — in particular through the “expulsion order” and the “travel bans”, which form the first claim of Qatar, are capable of falling within the scope of CERD. Furthermore, the majority fails to identify that the 5 June 2017 statement affects “all Qatari residents and visitors”. Leaving aside “visitors”, “residents” is broad enough to include not only Qatari nationals but also people of Qatari national origin. If the measures were to only affect Qatari nationals, the measures would have mentioned so explicitly. However, such terminology is not to be found. Thus, even from this perspective the measures are capable of falling within the protective scope of CERD.

30. Article 1, paragraph 1, of CERD defines “racial discrimination” as distinctions with either the “purpose or effect” of impairing the enjoyment of human rights. It is noted that the majority of Qatari nationals are defined by their Qatari heritage, ancestry or descent. The Qataris, in the sense of constituting a historical-cultural community undoubtedly fall within the scope of “national origin” as contained in Article 1, paragraph 1, of CERD. The ordinary meaning, in its context and in light of the object and purpose of CERD, and the travaux préparatoires of CERD also support this finding. As such, the discriminatory effect of the measures which forms the third claim of indirect discrimination, are capable of falling within the provisions of CERD. This is particularly so in relation to the adverse media coverage and the anti-Qatari propaganda that Qatar alleges. The effect of such broadcasts against Qatari nationals impair the enjoyment of rights by individuals of Qatari national origin. The attempt to limit these measures to nationality alone is untenable.

31. While a full assessment of these claims would appear more appropriate at the merits stage of the proceedings, at the jurisdictional stage, there is a sufficient basis to reject the first preliminary objection of the UAE.

Conclusion

32. In my view, Qatar's submission that the term “national origin” encompasses differential treatment on the basis of current nationality is correct and, as a consequence, the dispute concerns the interpretation or application of CERD; the UAE's case, which is grounded on its objections to the jurisdiction ratione materiae of the Court, on the basis that the contested measures do not fall within the scope of application of CERD, should therefore fail. Consequently, the Court has jurisdiction to entertain the Application filed by Qatar, on 11 June 2018, pursuant to the compromissory clause contained in Article 22 of CERD. The majority ought to have rejected the first preliminary objection of the UAE.

(Signed)  Dalveer BHANDARI.

DISSENTING OPINION OF JUDGE ROBINSON

1. 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.

2. It is settled that for the Court to have jurisdiction to entertain the Application, the violations of which Qatar complains must fall within the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter the “Convention” or “CERD”)Footnote 1.

First preliminary objection

3. 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.”

4. The majority has wrongly concluded that the claims arising from the first and third measures do not fall within the provisions of the Convention.

A. The first claim

5. Article 1 of CERD reads as follows:

  1. “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. 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. 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 meaning of the term “national origin” in Article 1 (1) of the Convention

6. 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.

7. By virtue of customary international law, the provisions of Article 1 of the Convention must be interpreted in good faith in accordance with their ordinary meaning in their context and in light of the object and purpose of the Convention. According to the ordinary meaning of the words “national” and “origin”, the term “national origin” refers to a person's historical relationship with a country where the people to which that person belongs are living. This relationship may extend for a short period or for a relatively long period. In some cases, the person may, while living in another country and having the citizenship of that country, retain citizenship of the country with which he also has a historical relationship. In other cases, he may not. There is nothing in the ordinary meaning of the term “national origin” that would render it inapplicable to a person's current nationality. The majority has argued as a general proposition that, while nationality is changeable, national origin is a characteristic acquired at birth and for that reason is immutable. As a general proposition, the validity of this statement is questionable. It is too stark in its presentation of the difference between nationality and national origin and does not reflect the nuances distinguishing one from the other.

8. National origin refers not only to the place from which one's forebears came; it may also refer to the place where one was born. For that reason, it is clear that national origin can encompass nationality because the place where one was born can give rise to both one's nationality as well as one's national origin. The directive of 5 June 2017 referred not only to Qatari nationals but also to Qatari residents and visitors in the UAE and the Qatari people, the latter categories clearly referring to national origin. As a matter of fact, the vast majority of persons who acquire nationality on the basis of jus sanguinis will spend the rest of their lives holding that nationality. In Qatar and the UAE, nationality is acquired on the basis of jus sanguinis. Therefore, a person who acquires nationality on the basis of jus sanguinis will, more likely than not, retain that nationality along with his national origin. In that sense, that person's nationality would seem to be just as unchangeable as his national origin.

9. The majority has relied on the Court's judgment in Nottebohm (Liechtenstein v. Guatemala), Second Phase, Judgment, I.C.J. Reports 1955, p. 20 to support its reasoning that nationality is subject to the discretion of the State. However, that case, decided in 1955, reflects a substantially State-centred approach to international law that has been affected by subsequent developments in human rights law. For example, it is now generally accepted that a State is not entirely free to deprive a person of his nationality where this act would render the person stateless.

10. The ordinary meaning of the term “national origin” must be read in its context and in light of the Convention's object and purpose.

11. 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.

The travaux préparatoires

12. Recourse may be had to the travaux to confirm the ordinary meaning of the term “national origin” set out above. The travaux show that during the discussion in the United Nations Third Committee of what ultimately became Article 1 (1), some members understood the term “national origin” to include nationality or understood it as equated with the word “nationality”. On the other hand, some delegations argued that the inclusion of the term “national origin” might oblige States to give to non-citizens in their territory rights that would normally be reserved for their own citizens. To take account of the latter concern, France and the United States proposed an amendment, the effect of which was to exclude “nationality” from the definition of “national origin”. However, this proposal met with strong opposition and was withdrawn. A nine-power compromise proposal was made and accepted, resulting in the addition to Article 1 of paragraphs 2 and 3. France and the United States indicated that the compromise proposal was “entirely acceptable”. The acceptance of the compromise proposal indubitably indicated the rejection of the exclusion of nationality from the concept of national origin. The majority attempts to make much of the fact that the proposal was a compromise. Of course, the text of paragraph 2 is a compromise, but its meaning is clear. It reflects the agreement reached between the position of those States, such as France and the United States, that the Convention should not prevent States parties from distinguishing between citizens and non-citizens, and the position of those States who were concerned that the term “national origin” should not be construed narrowly and restrictively. The entire Committee therefore accepted the compromise that the term “national origin” would encompass current nationality, but would leave States with the ability to reserve certain rights to their citizens. The travaux therefore confirm the interpretation resulting from the ordinary meaning of the term “national origin”.

The work of the CERD Committee and General Recommendation XXX

13. On 1 October 2002, 32 years after its establishment, the CERD Committee adopted General Recommendation XXX, paragraph 4 of which provides that “differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in 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”. This recommendation replaced General Recommendation XI of 1993. Qatar embraces General Recommendation XXX, paragraph 4, because, in its view, the UAE's measures had a disproportionate impact on Qataris. The UAE on the other hand argues that this recommendation does not reflect the law and should not be followed by the Court. The matter is of some importance because the Court has in the past taken account of the work of the United Nations supervisory bodies of human rights treaties. While the Court is not bound by the recommendations of such bodies, in Ahmadou Sadio Diallo, it indicated that it would attach “great weight” to the interpretations of the International Covenant on Civil and Political Rights (hereinafter the “ICCPR”) by the Human Rights CommitteeFootnote 2. The contribution, made by the CERD Committee to the protection of human rights by its monitoring of the implementation of the Convention, cannot be questioned. There is no reason why the Court should not attach great weight to the recommendations of the CERD Committee (which is properly seen as the guardian of the Convention), if they are not in conflict with international human rights law or general international law. This approach will promote the achievement of the clarity, consistency and legal security which the Court referred to in Ahmadou Sadio Diallo Footnote 3. It is regrettable that, in this case, the Court did not follow the CERD Committee's recommendation. Notably, the majority did not offer any explanation for not following it.

14. Paragraph 4 of Recommendation XXX reflects the tug between State power and the stress placed in international law after World War II on the fundamental rights of the individual. The paragraph seeks to strike a balance between measures taken by a State in the exercise of its sovereign powers and the extent to which those measures may properly derogate from a fundamental human right. The principle of proportionality is applied in the implementation of all the major global and regional human rights instruments; it is also applied by the multitude of States, which have, in their national constitutions and laws, provisions relating to the protection of fundamental rights and freedoms that have been influenced by the Universal Declaration of Human Rights and the European Convention on Human Rights. The principle of proportionality is applied by all regional human rights courts. My own view is that the principle may very well reflect a rule of customary international law. It is a principle that is applied in the interpretation and application of human rights instruments even though the word “proportionality” may not be found in those instruments. The principle requires States to justify a derogation from a fundamental human right by showing that the derogatory measure serves a legitimate aim and is proportional to the achievement of that aim. As the Court itself held in its Advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories in its interpretation of Article 12 (3) of the ICCPR, the derogation must be the least restrictive measure needed to achieve that aimFootnote 4. Once the Court is satisfied that measures taken by a State in the implementation of Articles 1 (2) and 1 (3) are properly seen as raising a question of derogation from the prohibition of racial discrimination under Article 1, it must, if it is to be consistent with the development of the corpus of international human rights law since 1945, apply the principle of proportionality in order to determine whether that question arises. Such a question, if it arises, falls within the provisions of the Convention and would be an important aspect of the dispute relating to its interpretation or application.

15. If the Convention is interpreted as not requiring the application of the principle of proportionality set out in paragraph 4 of General Recommendation XXX, it would be an outlier among the number of human rights treaties that have been adopted since World War II. Moreover, the Committee's recommendation is wholly consistent with the purpose of the Convention to eliminate all forms of racial discrimination, since it confirms that States are not free to adopt measures that disproportionately discriminate against persons on the basis of their nationality. The effect of the recommendation is not to prevent States from adopting measures that differentiate between citizens and non-citizens. It only prohibits measures that cannot be justified on the basis that they serve a legitimate aim and are proportional to the achievement of that aim.

16. In the circumstances of this case and in the context of Article 1 (2) and (3) of the Convention, it was open to the UAE to adopt measures distinguishing between United Arab Emirates’ citizens and the citizens of other States, including those of Qatar. However, in adopting those measures, the UAE was obliged to ensure that the measures served a legitimate aim and were proportionate to the achievement of that aim. Qatar has argued that Qataris were disproportionately targeted by the measures. Moreover, although Article 1 (3) allows a State to adopt measures providing for distinctions on the basis of nationality, it specifically provides that such measures must not discriminate against a particular nationality.

17. Paragraph 4 of General Recommendation XXX becomes relevant in light of Qatar's claim that the measures disproportionately targeted persons of Qatari citizenship. As noted before, the principle of proportionality becomes applicable once a treaty or national law provides for what is in effect a derogation from a fundamental human right. In the particular context of this case therefore, Qatar's claim that the measures disproportionately affected Qataris on the basis of their nationality, which is encompassed by the term “national origin”, falls within the provisions of the Convention.

18. In light of the foregoing, Qatar's first claim falls within the provisions of CERD.

B. The second claim

19. I am in agreement with the finding of the majority that Qatar's claim relating to discrimination against media corporations does not fall within the provisions of the Convention.

C. The third claim

20. According to the Convention, the term “racial discrimination” refers to a restrictive measure that is based on race, colour, descent, or national or ethnic origin, which has the purpose or effect of impairing the enjoyment, on an equal footing, of fundamental human rights. However, as Judge Crawford stated in his declaration in Ukraine v. Russian Federation,

“[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”Footnote 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.

21. Some comments on indirect discrimination are appropriate. First, the label “indirect discrimination” may be misleading because, for the so-called indirect discrimination to occur, the measures in question must by their effect directly implicate persons in the protected group. In this case, the measures directly implicate persons of Qatari national origin. There is nothing that is indirect in the way the measures by their effect implicate persons of Qatari national origin. Second, the kind of treatment described by Qatar as indirect discrimination occurs frequently in the practice of States. Third, another drawback with the label “indirect discrimination” is that it would seem to suggest or imply that indirect discrimination is inferior to what is called direct discrimination, and for that reason, there may be a tendency to undervalue indirect discrimination. This tendency is evident in paragraph 112 of the Judgment where the majority speaks of “collateral or secondary effects” of the measures. Fourth, the kind of restriction that gives rise to indirect discrimination is frequently disguised discrimination; the discrimination may be difficult to detect because, on its face, the restrictive measure is not based expressly on racial or other grounds.

22. For all these reasons, it is regrettable that the majority did not address Qatar's third claim in a satisfactory manner.

23. The substance of Qatar's third claim is that while the travel ban, the expulsion order and the restrictions on media corporations do not, on their face, purport to discriminate against Qataris on the basis of their national origin — that is, are not based expressly on national origin — by their effect, they constitute discrimination on that basis.

24. It must be emphasized that Qatar's third claim operates independently of its claim that the measures discriminated against Qataris by reason of their nationality; Qatar argues that by reason of their effect the measures also discriminate against Qataris because of their cultural links with Qatar and, therefore, by reason of their Qatari national origin. The examples given by Qatar of how Qataris have been impacted by the measures are a classical illustration of discrimination based on national origin; they show precisely how Qataris were impacted by the measures by reason of their cultural ties with Qatar as a nation. It follows, therefore, that Qatar's third claim, based as it is on the effect of the measures on Qataris as persons of Qataris national origin, is not affected by the majority's finding in paragraph 105 that “the measures complained of by Qatar in the present case as part of its first claim, which are based on the current nationality of its citizens, do not fall within the scope of CERD”. Qatar's third claim is that the measures that are based on national origin, a protected ground in the Convention, fall within the provisions of the Convention.

25. Qatar's examples of how the UAE's measures as a matter of fact directly implicated persons of Qatari national origin on the basis of identification with Qatari national traditions and culture, their dress and accent include the following:

  1. (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.

  2. (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.

26. 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.

27. The majority does not seek to substantiate its finding by way of reason; it proceeds by way of assertion by simply stating that “the various measures of which Qatar complains do not, either by their purpose or their effect, give rise to racial discrimination against Qataris as a distinct social group on the basis of their national origin” (paragraph 112 of the Judgment). It is not clear what the majority means by racial discrimination against Qataris as a “distinct social group”. It certainly could not mean that the majority does not accept that Qataris constitute a distinct social group, since uncontradicted evidence was given by Qatar through its expert, Mr. John Peterson, that Qataris constitute such a group. If the majority accepts that Qataris constitute a distinct social group, then certainly cogent evidence has been provided to illustrate the discriminatory effect of the measures on Qataris as such a group, and therefore, on the basis of their national origin. For what could be more illustrative of the distinctiveness of the social group to which a person belongs than his dress and speech and, if this cultural linkage is exploited for discriminatory reasons as a result of the travel ban, why is that treatment not capable of constituting racial discrimination on the basis of national origin? The majority is silent as to a reason but strong in its oracular declaration that “the measures of which Qatar complains . . . are not capable of constituting racial discrimination within the meaning of the Convention”. In its reasoning, the majority does not even pause to identify and examine the factual circumstances cited by Qatar as giving rise to discrimination by effect on the basis of national origin. If there is an inherent element in these measures that renders them incapable of resulting in discrimination by effect on the basis of national origin, the majority has not identified it.

28. In sum, Qatar's claim that the measures by their effect discriminated against Qataris on the basis of their national origin falls within the provisions of the Convention.

Conclusion

29. In light of the foregoing, the first preliminary objection should have been rejected as the dispute between the Parties concerns the interpretation or application of the Convention, and the Court should have found that it has jurisdiction ratione materiae under Article 22 of CERD in respect of the Qatar's first and third claims in its first preliminary objection.

(Signed) Patrick L. ROBINSON.

SEPARATE OPINION OF JUDGE IWASAWA

Non-citizens are entitled to human rights under international law — The jurisdiction of the Court is limited to disputes with respect to the interpretation or application of CERD — For the Court to have jurisdiction, the measures of which the Applicant complains must be capable of constituting racial discrimination within the meaning of CERD — The term “national origin” in Article 1, paragraph 1, of CERD does not encompass current nationality — If differentiation of treatment based on nationality has the “purpose or effect” of discrimination based on “national origin”, it is capable of constituting racial discrimination within the meaning of CERD — International human rights courts and bodies have embraced and developed the notion of indirect discrimination — The Court does not have all the facts necessary to make determinations on the Applicant's claim of indirect discrimination — The issues raised constitute the very subject-matter of the dispute on the merits — The Court should have declared that the first preliminary objection does not possess an exclusively preliminary character.

1. 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).

2. 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.

3. This opinion is structured as follows. I shall first review the position of non-citizens under international law. I will explain that since human rights are inalienable rights of everyone, non-citizens are also entitled to human rights under international law. In the second section, I will first show that, because the jurisdiction of the Court in the present case is limited to the interpretation or application of CERD, in order for the Court to have jurisdiction, the measures taken by the UAE must be capable of constituting “racial discrimination” under CERD. Secondly, I shall explain the reasoning for my view that current nationality is not encompassed within the term “national origin” in Article 1, paragraph 1, of CERD. Thirdly, I shall discuss the notion of indirect discrimination and describe how differentiation of treatment based on current nationality can have the “purpose or effect” of discriminating on the basis of a prohibited ground listed in Article 1, paragraph 1, of CERD. Finally, I shall explain the reasons why the Court should have declared that the first preliminary objection of the UAE does not possess an exclusively preliminary character.

I. Human rights of non-citizens under international law

4. The protection of the rights of non-citizens has a long history in international law, which pre-dates the protections accorded to States’ own nationals. In the nineteenth and early twentieth centuries, an international minimum standard of treatment of aliens developed in international law. By contrast, international law at that time contained few rules regulating States’ treatment of their own nationals, which was traditionally considered to be part of the internal affairs of States.

5. At the Paris Peace Conference held in 1919–1920, proposals were made to include in the Covenant of the League of Nations clauses on freedom of religion and racial equality. These proposals were ultimately defeated, and the Covenant failed to stipulate even minimum rules concerning human rights. Instead, a number of mostly Central and Eastern European States concluded treaties or made declarations committing themselves to protect minorities within their territories. In addition, the International Labour Organization, which was established in 1919, began adopting conventions on the rights of workers. Thus, while some efforts were made in the interwar period to protect human rights under international law, this protection was extended only to certain rights or covered only a limited number of States.

6. 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.

7. In 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights (hereinafter the “UDHR”), which set out a catalogue of human rights to be protected by States under the Charter. Influenced by the idea of natural rights, it provided that “[a]ll human beings are born free and equal in dignity and rights” (Art. 1; emphasis added) and that “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, 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” (Art. 2; emphasis added). From the phrase “such as”, it is clear that the list of prohibited grounds of discrimination in Article 2 of the UDHR is illustrative, and not exhaustive. Moreover, the list includes the catch-all term “other status”. Thus, even though nationality is not expressly mentioned in the list of prohibited grounds, it may be concluded that discrimination based on nationality is prohibited by the UDHR and that non-citizens are also entitled to the human rights enshrined therein.

8. 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.

9. The wording used by the ICESCR is slightly different. Article 2, paragraph 2, provides that the States parties “undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (emphasis added). The words “as to” are more restrictive than the words “such as” used in the UDHR and the ICCPR. Nevertheless, because the list of prohibited grounds of discrimination, like those in the UDHR and the ICCPR, contains the catch-all term “other status”, it may be concluded that this list is also illustrative, and not exhaustive. Moreover, Article 2, paragraph 3, provides that “[d]eveloping countries . . . may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals”. Interpreting this clause a contrario, it may be concluded that the human rights provided for in the ICESCR are also guaranteed in principle to non-nationals.

10. Regional conventions on human rights likewise contain non-discrimination clauses, such as Article 14 of the European Convention on Human Rights and Articles 1 and 24 of the American Convention on Human Rights. The lists of prohibited grounds of discrimination in these clauses also contain catch-all terms: “other status” in Article 14 of the European Convention and “other social condition” in Article 1 of the American Convention. Thus, these lists of prohibited grounds are equally considered to be illustrative, and not exhaustive. Accordingly, like the international conventions discussed above, regional conventions are understood to protect the rights of non-citizens.

11. The international human rights bodies and courts established by these treaties to monitor their implementation by States have confirmed that non-citizens are entitled to the human rights provided for therein and that discrimination based on nationality is prohibited.

12. With regard to the ICCPR, in 1986 the Human Rights Committee adopted General Comment No. 15 on the position of aliens under the Covenant, in which it affirmed that “[i]n general, the rights set forth in the Covenant apply to everyone . . . irrespective of his or her nationality”, and that “the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens”Footnote 1.

13. Subsequently, in a number of individual communication cases, the Human Rights Committee has held that discrimination based on nationality is prohibited by Article 26 of the ICCPR. In Gueye et al. v. France, retired soldiers of Senegalese nationality who had served in the French Army prior to the independence of Senegal claimed that France was in breach of Article 26 because the pensions they received were inferior to those enjoyed by retired soldiers of French nationality. The Committee considered that this practice constituted discrimination based on nationality in violation of Article 26Footnote 2. The Committee also found violations of Article 26 in a number of cases brought against the Czech Republic. These cases concerned Czech nationals who had fled Czechoslovakia under communist pressure and had their property confiscated under the legislation then applicable. The Czech Restitution Act of 1991 provided for restitution of property or compensation, but only if a person was a citizen of the Czech and Slovak Republic and was a permanent resident in its territory. Persons who lost Czech citizenship after leaving the country submitted communications to the Committee, claiming that they had been discriminated against because of their lack of citizenship. The Committee found the condition of citizenship unreasonable and discriminatory, in violation of Article 26 of the ICCPRFootnote 3.

14. The Committee on Economic, Social and Cultural Rights (hereinafter the “CESCR”) has similarly confirmed that the ICESCR applies to non-citizens. In General Comment No. 20 of 2009, the CESCR declared that “[t]he ground of nationality should not bar access to Covenant rights”, while noting that this was “without prejudice to the application of art. 2, para. 3, of the Covenant”. It confirmed that “[t]he Covenant rights apply to everyone including non-nationals”Footnote 4.

15. The monitoring bodies established by regional conventions on human rights have taken the same position. The European Court of Human Rights (hereinafter the “ECtHR”) has held that discrimination based on nationality is prohibited by the European Convention on Human RightsFootnote 5. So has the Inter-American Court of Human Rights (hereinafter the “IACtHR”) with regard to the American Convention on Human RightsFootnote 6.

16. Furthermore, the General Assembly of the United Nations adopted in 1985 the Declaration on the human rights of individuals who are not nationals of the country in which they live (resolution 40/144), which lists rights applicable to individuals present in States of which they are not nationals. A substantial number of the rights mentioned therein replicate provisions contained in the International Bill of Human Rights (the UDHR, the ICESCR and the ICCPR), emphasizing their applicability to non-citizens, albeit using somewhat different wording. This declaration provides further evidence that non-citizens are entitled to most of the human rights contained in these instruments.

17. While it is clear that non-citizens are entitled to human rights under international law, international law does allow States to draw distinctions between citizens and non-citizens in respect of certain rights, such as political rights and the right to enter a country. For example, Article 25 of the ICCPR provides that “[e]very citizen” shall have the right to take part in the conduct of public affairs, to vote and to be elected, and to have access to public service; and Article 12, paragraph 4, states that no one shall be arbitrarily deprived of the right to enter “his own country”. In General Comment No. 15 of 1986, the Human Rights Committee acknowledged that “some of the rights recognized in the Covenant are expressly applicable only to citizens”Footnote 7.

18. In addition, international law allows States to draw distinctions between citizens and non-citizens in time of public emergency. Article 4, paragraph 1, of the ICCPR permits States, in time of public emergency, to take measures derogating from their obligations under the Covenant, provided such measures do not involve discrimination on the ground of “race, colour, sex, language, religion or social origin”. Neither “nationality” nor “other status” is included in this list. Since Article 4, paragraph 2, makes certain rights non-derogable even in time of public emergency, no one, including non-citizens, can be deprived of these non-derogable rights. With regard to the other rights, however, States are not prohibited from introducing restrictions that apply only to non-citizens in time of public emergency.

19. Furthermore, even in respect of the rights to which non-citizens are entitled under international law, States are not prohibited from making certain distinctions based on nationality. The monitoring bodies established by the international and regional human rights treaties use similar frameworks to determine whether a distinction constitutes discrimination. A differentiation of treatment is considered to constitute discrimination, unless the criteria for such a differentiation are reasonable and objective; in other words, unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achievedFootnote 8. This general framework also applies to the question of whether particular distinctions based on nationality constitute discrimination. Thus, for instance, preferential treatment given to certain groups of non-citizens by virtue of international agreements may be considered reasonable and objective and therefore would not constitute discriminationFootnote 9.

20. The Committee on the Elimination of Racial Discrimination (hereinafter the “CERD Committee”), in its General Recommendation XXX on discrimination against non-citizens, took note of the aforementioned protections that international law provides to non-citizensFootnote 10. Article 1, paragraph 2, of CERD provides that “[t]his Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens”. In the General Recommendation, the Committee stressed that “Article 1, paragraph 2 . . . should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in [the UDHR, the ICESCR and the ICCPR]”Footnote 11. Similarly, the Committee noted:

“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.”Footnote 12

21. As I will explain in more detail below, the present dispute concerns solely “the interpretation and application of [CERD]” and not other rules of international law. The Court has no jurisdiction to make determinations as to whether the measures taken by the UAE comply with other rules of international law.

II. “Racial discrimination” under the International Convention on the Elimination of All Forms of Racial Discrimination

1. The Court has jurisdiction with respect to the interpretation or application of the International Convention on the Elimination of All Forms of Racial Discrimination

22. 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.

23. Just as it has done before this Court, the UAE raised before the CERD Committee the objection that its dispute with Qatar falls outside the scope ratione materiae of CERD. In accordance with Rule 91 of its Rules of Procedure, the Committee dealt with the preliminary issue of its competence ratione materiae as a question of admissibilityFootnote 13. For this Court, however, this objection raises an issue of jurisdiction. If the measures taken by the UAE are not capable of constituting racial discrimination under CERD, the dispute falls outside the jurisdiction ratione materiae of the Court.

24. Article 1, paragraph 1, of CERD defines “racial discrimination” as follows:

“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.”

25. The definition of “racial discrimination” under this provision has two elements. First, the measures must constitute a distinction, exclusion, restriction or preference which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights. In other words, they must entail differential treatment. Secondly, the differential treatment must be based on one of the prohibited grounds, namely, “race, colour, descent, or national or ethnic origin”.

26. 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 (Judgment, paragraphs 57 and 59). 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.

27. In its first preliminary objection, the UAE maintains that the Court lacks jurisdiction ratione materiae over the present dispute because the alleged acts differentiate on the basis of “current nationality” and do not fall within the scope of CERD. Article 1, paragraph 1, of CERD, unlike the non-discrimination provisions of the other human rights instruments discussed above, contains neither a phrase like “such as” before the list of prohibited grounds, nor a catch-all term like “other status”. The wording of Article 1, paragraph 1, therefore clearly indicates that the list of prohibited grounds is exhaustive, and not illustrative. In order for differential treatment to constitute “racial discrimination”, it must be based on one of the specified prohibited grounds: “race, colour, descent, or national or ethnic origin”. “Nationality” is not included in the list. Nonetheless, Qatar argues that the term “national origin” encompasses nationality, including present nationality, while the UAE disagrees. The Court examines this issue in detail and concludes that “national origin” does not encompass current nationality (Judgment, paragraphs 74–105). I agree with this conclusion of the Court. The next section of this opinion will explain my reasoning, including additional reasons to those provided by the Court.

2. “Nationality” and “national origin”

28. The prohibited grounds listed in Article 1, paragraph 1 — “race, colour, descent, or national or ethnic origin” — are inherent, immutable and permanent characteristics of individuals. “National origin” is not listed independently, but together with “ethnic origin” as “national or ethnic origin”. Thus, the text indicates a close relationship between the terms “national origin” and “ethnic origin”. Read in its ordinary meaning in this context, “national origin” can be understood as referring to the country or cultural group (nation) from which a person originates.

29. “Nationality”, on the other hand, is a legal bond a State creates with certain persons whom it accepts as its nationals. It is a person's legal status as a citizen of a State. Nationality is an alterable condition and is fundamentally different in nature from the characteristics of individuals listed in Article 1, paragraph 1, which are inherent, immutable and permanent. This crucial difference suggests that nationality is not encompassed within any of the prohibited grounds listed in Article 1, paragraph 1, including “national origin”.

30. Article 1, paragraph 1, must also be read in the context of the Convention's other provisions. Paragraph 2 of Article 1 provides that “[t]his Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens”, and paragraph 3 provides that “[n]othing 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” (emphasis added). It is reasonable to consider that this proviso was inserted in paragraph 3 because CERD does not otherwise prohibit discrimination based on nationality. Furthermore, in Article 5, States parties undertake to guarantee the right of everyone to equality before the law in the enjoyment of the listed rights, which include rights that are typically reserved for citizens, such as political rights.

31. Qatar argues that since paragraphs 2 and 3 of Article 1 are exceptions to the definition established in paragraph 1, they imply that nationality is a prohibited ground under the definition in paragraph 1. However, paragraphs 2 and 3 rather convey the drafters’ intent to exclude differential treatment based on nationality from the scope of the Convention and to make sure that the Convention does not prevent States parties from regulating questions of nationality. They are not exceptions to paragraph 1, but instead clarify that the definition of racial discrimination in paragraph 1 should not be read to encompass distinctions based on nationality.

32. Interpreting “national origin” as not encompassing nationality is also consistent with CERD's object and purpose of eliminating racial discrimination “in all its forms and manifestations” (preamble; see also Arts. 2 and 5). Although nationality is not encompassed within “national origin”, Article 1, paragraph 1, still prohibits differential treatment based on nationality when it has the “purpose or effect” of discriminating on the basis of “national origin” (see section II.3 below).

33. The travaux préparatoires of CERD confirm that the drafters did not intend nationality to constitute a ground of racial discrimination. The Court analyses the travaux préparatoires in detail (Judgment, paragraphs 89–97). I would draw attention to the following two points in particular. First, the definition of racial discrimination prepared by the Commission on Human Rights and presented to the Third Committee of the General Assembly in 1964 contained the following sentence: “[In this paragraph the expression ‘national origin’ does not cover the status of any person as a citizen of a given State.]” (See Judgment, paragraph 94.) Secondly, in the course of the work of the Third Committee, France and the United States of America proposed an amendment that would have provided that “the expression ‘national origin’ does not mean ‘nationality’ or ‘citizenship’” and that the Convention was not applicable to distinctions “based on differences of nationality or citizenship”Footnote 14. In withdrawing this proposal, the French delegate stated that the alternative text, which was eventually adopted as Article 1, was “entirely acceptable” to both France and the United States (see Judgment, paragraphs 90 and 96). The CERD Committee has also accepted that “the travaux préparatoires of the Convention show that in the different stages of the elaboration of the Convention . . . the ground ‘national origin’ was understood as not covering ‘nationality’ or ‘citizenship’”Footnote 15.

34. An additional reason to distinguish “national origin” from “nationality” relates to the different levels of scrutiny that are required in reviewing the lawfulness of differential treatment under each ground. Racial discrimination is one of the most invidious forms of discrimination. Differentiation of treatment based on a prohibited ground listed in Article 1, paragraph 1, of CERD is inherently suspect and must meet the most rigorous scrutiny. For example, the ECtHR has held that “[w]here the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible”Footnote 16. The ECtHR has gone so far as to affirm that “[n]o difference in treatment based exclusively or to a decisive extent on a person's ethnic origin is capable of being justified in a contemporary democratic society”Footnote 17. In this way, if the difference in treatment is based on “race, colour, descent, or national or ethnic origin”, States bear a very heavy burden in demonstrating that the difference pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The scrutiny must be most rigorous and the threshold must be very high.

35. When the difference in treatment is based on nationality, the level of scrutiny required is different. Since non-citizens normally have no right to vote or be elected, and thus are unable to protect their interests through the political process, rigorous scrutiny is warranted for distinctions based on nationality. However, because States are entitled to make distinctions between citizens and non-citizens in respect of some rights or in certain circumstances, the level of scrutiny required need not be as rigorous as in cases of distinctions based on “race, colour, descent, or national or ethnic origin”. The ECtHR has declared that “very weighty reasons would have to be put forward before it could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention”Footnote 18. While that threshold remains high, the scrutiny required by the ECtHR is not as rigorous and the threshold is not as high as for cases of distinctions based on “race, colour, descent, or national or ethnic origin”Footnote 19.

36. 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.

37. Interpreting the term “national origin” in Article 1, paragraph 1, of CERD as not encompassing nationality is consistent with the interpretation of similar language in other human rights conventions by these bodies and courts. As noted above (see section I), international human rights conventions usually contain non-discrimination provisions with a list of prohibited grounds of discrimination that includes “national origin” but not “nationality”. In interpreting these provisions, these bodies and courts typically distinguish “nationality” from “national origin” and do not consider the former to be encompassed by the latter.

38. Non-discrimination provisions of the core human rights treaties adopted by the United Nations do not contain nationality among the prohibited grounds of discrimination, except for the International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families, which lists “nationality” separately from and in addition to “national origin” as a prohibited ground (Arts. 1 and 7). In interpreting that Convention, the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families has explicitly treated “national origin” and “citizenship status” as two distinct grounds of discriminationFootnote 20.

39. Similarly, the Human Rights Committee does not view the term “national origin”, as used in the ICCPR, as encompassing nationality. Rather, it has taken the position that nationality falls within the term “other status”, which is listed along with “national origin” among the prohibited grounds of discrimination in Article 26 of the ICCPR. In Gueye et al v. France, the case concerning the pensions of retired French soldiers of Senegalese nationality (see paragraph 13 above), the Committee held that there was discrimination based on nationality, while finding “no evidence to support the allegation that the State party has engaged in racially discriminatory practices vis-à-vis the authors”. In doing so, the Committee expressly stated that a differentiation by reference to nationality “falls within the reference to ‘other status’ in . . . article 26”Footnote 21.

40. Karakurt v. Austria, another case before the Human Rights Committee, is even more illuminating. The case involved a claim by a Turkish national that a labour law of Austria which barred non-Austrian nationals from holding positions on works councils violated his rights under Article 26 of the ICCPR. Upon its ratification of the ICCPR, Austria entered a reservation that “Article 26 is understood to mean that it does not exclude different treatment of Austrian nationals and aliens, as is also permissible under article 1, paragraph 2, of [CERD]”. The Committee considered that it was precluded by this reservation from examining the claim of the author of the communication in so far as it related to the distinction between Austrian nationals and non-nationals, but that it was not precluded from examining the author's claim relating to the distinction made by Austria between nationals of the European Economic Area (EEA) and non-EEA nationals. Two members disagreed with the first conclusion of the Committee. They maintained that Austria's intention was to harmonize its obligations under the ICCPR with those under CERD. Hence, in their view, “the Committee [was] precluded from assessing whether a distinction made between Austrian nationals and aliens amounts to such discrimination on grounds of ‘race, colour, descent or national or ethnic origin’”. They contended, however, that nationality was not a ground of racial discrimination under CERD and, therefore, that the Committee was not barred by the Austrian reservation from examining the author's claim on the distinction between Austrian nationals and non-nationals. For them, “Article 1, paragraph 2, of [CERD] makes it clear that citizenship is not covered by the notion of ‘national origin’”. By contrast, “distinctions based on citizenship fall under the notion of ‘other status’ in article 26 and not under any of the grounds of discrimination covered by article 1, paragraph 1, of [CERD]”. They concluded that “the Austrian reservation to article 26 does not affect the Committee's competence to examine whether a distinction made between citizens and aliens amounts to prohibited discrimination under article 26 of the Covenant on other grounds than those covered also by [CERD]”Footnote 22.

41. The CESCR, like the Human Rights Committee, has taken the view that “national origin”, which is listed among the prohibited grounds of discrimination in Article 2, paragraph 2, of the ICESCR, “refers to a person's State, nation, or place of origin”Footnote 23, and that nationality falls within “other status”Footnote 24.

42. As previously noted, regional conventions on human rights also contain non-discrimination provisions with lists of prohibited grounds of discrimination, which are recognized to be illustrative, and the monitoring courts and bodies established by these conventions have confirmed that the human rights provided for therein also apply to non-citizens (see paragraphs 10 and 15 above). These courts and bodies usually do not consider nationality as falling within “national origin”. For example, in Luczak v. Poland, the ECtHR stated that “a difference in treatment on the basis of nationality . . . falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14”Footnote 25.

43. The CERD Committee has confirmed in its jurisprudence that differentiation of treatment based on nationality does not per se constitute “racial discrimination” under CERD. In Diop v. France, a Senegalese citizen claimed that France was in violation of CERD because his application for membership of the Bar of Nice had been rejected for the reason that he was not a French national. The Committee found no violation, stating that “the refusal to admit [the author] to the Bar was based on the fact that he was not of French nationality, not on any of the grounds enumerated in article 1, paragraph 1”Footnote 26. Similarly, in Quereshi v. Denmark, the CERD Committee held that it could not conclude that the Danish authorities had reached an inappropriate conclusion in determining that offensive statements made at a party about “foreigners” did not amount to an act of racial discrimination, because “a general reference to foreigners does not at present single out a group of persons . . . on the basis of a specific race, ethnicity, colour, descent or national or ethnic origin”Footnote 27.

44. For the reasons given by the Court (Judgment, paragraphs 74–105) and the reasons set out above, I am of the view that current nationality is not encompassed within “national origin” under Article 1, paragraph 1, of CERD and, therefore, that differentiation of treatment based on current nationality does not per se constitute “racial discrimination” within the meaning of CERD.

45. 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.

3. Distinctions based on “nationality” can have the purpose or effect of discrimination based on “national origin”

46. 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.

47. I shall start by examining the notion of indirect discrimination as embraced and developed by international human rights courts and bodies and the role it plays under CERD. Then, in the next section, I will explain why Qatar's claim of indirect discrimination should have been examined in detail at the merits stage.

48. The definition of racial discrimination in Article 1, paragraph 1, of CERD sets out two conditions. First, there must be a distinction, exclusion, restriction or preference “based on race, colour, descent, or national or ethnic origin”. Secondly, the differential treatment must have 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.

49. If differentiation of treatment based on nationality has the “purpose or effect” of discrimination based on one of the prohibited grounds listed in Article 1, paragraph 1, it is capable of constituting “racial discrimination” within the meaning of the Convention. The object and purpose of CERD is to eliminate racial discrimination “in all its forms and manifestations” (preamble; see also Arts. 2 and 5). Ensuring that differentiation of treatment based on nationality does not have the “purpose or effect” of discriminating based on any of the prohibited grounds in Article 1, paragraph 1, is consistent with, and indeed required by, the object and purpose of the Convention.

50. Judge Crawford has acknowledged that “[a restriction] may constitute racial discrimination if it has the ‘effect’ of impairing the enjoyment or exercise, on an equal footing, of the rights articulated in CERD”Footnote 28. Likewise, Judges Tomka, Gaja and Gevorgian observed in their joint declaration appended to the Court's first provisional measures Order in the present case that “[d]ifferences of treatment of persons of a specific nationality may target persons who also have a certain ethnic origin and therefore would come under the purview of CERD”Footnote 29.

51. International human rights courts and bodies, including the CERD Committee, have embraced and developed the notion of indirect discrimination. If a rule, measure or policy that is apparently neutral has an unjustifiable disproportionate prejudicial impact on a certain protected group, it constitutes discrimination notwithstanding that it is not specifically aimed at that group. The analysis of disproportionate impact requires a comparison between different groups. The context and circumstances in which the differentiation was introduced must be taken into account in determining whether the measure amounts to discrimination.

52. The CERD Committee has recognized in its practice the need to address not only direct but also indirect discrimination. In its 1993 General Recommendation XIV on article 1, paragraph 1, of the Convention, the Committee stated that “[i]n seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin”Footnote 30. In L.R. v. Slovakia, it recalled that

“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.”Footnote 31

53. The other human rights treaty bodies have likewise embraced the notion of indirect discrimination. The Human Rights Committee has recalled that

“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”Footnote 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”Footnote 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 occursFootnote 34.

54. Regional human rights courts have accepted the notion of indirect discrimination as well. For example, the ECtHR has stated that “a policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory, regardless of whether the policy or measure is specifically aimed at that group”Footnote 35. Similarly, the IACtHR has considered that

“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”Footnote 36.

55. The CERD Committee has applied the notion of indirect discrimination in the context of the treatment of non-citizens. In B.M.S v. Australia, the Committee examined a quota system introduced by Australia that limited the number of doctors trained abroad who were permitted to pass the first stage of the medical examination process to be registered as a doctor in that country. The Committee held that it could not reach the conclusion that “the system works to the detriment of persons of a particular race or national origin” and therefore found that the facts as submitted did not disclose a violation of CERD. It nonetheless recommended to Australia to take measures and improve the transparency of the medical registration procedure to ensure that “the system is in no way discriminatory towards foreign candidates irrespective of their race or national or ethnic origin”Footnote 37. In addition, the Committee has consistently asked States parties to report on the status of non-citizens, particularly migrants and refugees, who often belong to a single ethnic group and are susceptible to racial discrimination based on one of the prohibited grounds listed in Article 1, paragraph 1, of CERD. It has rejected an interpretation of Article 1, paragraph 2, that would “absolv[e] States parties from any obligation to report on matters relating to legislation on foreigners”, affirming that “States parties are under an obligation to report fully upon legislation on foreigners and its implementation”Footnote 38. After considering reports submitted by States parties, the Committee regularly adopts concluding observations that include recommendations on the treatment of non-citizens. These practices of the CERD Committee can be explained by the notion of indirect discrimination. While differentiation of treatment based on nationality does not per se constitute racial discrimination within the meaning of CERD, it constitutes racial discrimination if it has the “purpose or effect” of discrimination based on one of the prohibited grounds in Article 1, paragraph 1.

56. In September 2001, the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban, South Africa, adopted a Declaration against Racism, Racial Discrimination, Xenophobia and Related Intolerance (hereinafter the “Durban Declaration”). The Durban Declaration stated that “racism, racial discrimination, xenophobia and related intolerance occur on the grounds of race, colour, descent or national or ethnic origin” (para. 2; emphasis added), and that

“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.

57. In 2004, influenced by the Durban Declaration, the CERD Committee adopted General Recommendation XXX on discrimination against non-citizens Footnote 39. In its paragraph 4, the Committee proclaimed:

“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.”Footnote 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.

58. Finally, the notion of indirect discrimination presumably underlies the CERD Committee's decision on the admissibility of the inter-State communication brought by Qatar against the UAE pursuant to Article 11 of CERD. The Committee concluded that the allegations submitted by Qatar “do not fall outside the scope of competence ratione materiae of the Convention”, relying primarily on its previous practice, in particular paragraph 4 of General Recommendation XXXFootnote 41. As noted above, paragraph 4 can be explained by the notion of indirect discrimination. The Committee may have come to the above conclusion precisely because differentiation based on current nationality is capable of constituting racial discrimination indirectly.

4. The objection of the UAE does not possess an exclusively preliminary character

59. 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.

60. In the present case, Qatar has explicitly acknowledged that “it is on ‘national origin’ that [it] bases its claims”Footnote 42. It claims that the UAE has engaged in indirect discrimination against persons of Qatari national origin. It does not claim that the measures taken by the UAE were discriminatory on the basis of another protected ground — “race, colour, descent, or ethnic origin”. The UAE for its part contends that the measures complained of by Qatar do not constitute indirect discrimination on the basis of national origin. It maintains that no measure was taken, in terms of either purpose or effect, against any person other than those belonging to the group defined by Qatari nationality.

61. The task of the Court, therefore, is to determine whether the measures taken by the UAE on the basis of current nationality have an unjustifiable disproportionate prejudicial effect on an identifiable group distinguished by national origin. In order to make this determination, it is first necessary to identify a group that is distinguished by “national origin” and entitled to protection under CERD. Subsequently, it must be assessed whether the measures have an unjustifiable disproportionate prejudicial impact on that protected group compared to other groups.

62. With regard to the first issue, Qatar contends that Qataris can be distinguished by their “national origin” in the historical-cultural sense, defined by their heritage or descent, family or tribal affiliations, national traditions and culture, and geographic ties to the peninsula of Qatar. It argues that several factors, including dialect or accent, traditional dress and family affiliations, distinguish Qataris from other national communities in the Gulf region. Qatar relies mainly on an expert report in support of this contentionFootnote 43. The UAE for its part argues that Qatari and Emirati people share geographical ties, as well as a common ancestry, language, heritage, traditions and culture, to such an extent that they are the same people, albeit with different nationalities. However, it submits no evidence in support of this contention. The UAE accepts that “[d]isguised discrimination would come within the scope of . . . CERD”, but maintains that “there is no discrimination, whether open or disguised, direct or indirect, against a CERD protected groupFootnote 44. Thus, the very existence of a protected group under CERD is contested by the Parties. Based on the pleadings of the Parties and the evidence submitted, the Court is not in a position to establish whether a CERD protected group can be distinguished by national origin. The materials before the Court do not provide it with all the facts needed to resolve the first issue.

63. The second issue is whether the challenged measures have an unjustifiable disproportionate prejudicial impact on the protected group compared to other groups. Qatar claims that the measures have a “disproportionate impact” on the rights of QatarisFootnote 45. The UAE for its part contends that the measures are addressed to Qatari nationals, and not persons of Qatari national origin. It maintains that persons of Qatari national origin but not possessing Qatari nationality were neither addressed nor affected by the measures, and that persons of Qatari nationality but possessing some other national origin were nonetheless addressed and affected by the measures.

64. In order for the measures challenged here to constitute indirect discrimination, they must have an unjustifiable disproportionate prejudicial impact on the identified protected group in comparison with other groups. Qatar bears the burden of establishing such a disproportionate impact. On the other hand, the UAE has the burden of demonstrating that the measures were based exclusively on nationality. The context and circumstances in which the differentiation was introduced must be taken into account in determining whether the measures amount to discrimination. The examination of these questions requires extensive factual analysis. In the same way as for the first issue addressed above, the materials before the Court do not provide it with all the facts necessary to address the second issue. Moreover, these issues constitute the very subject-matter of the dispute on the merits, and as such their determination should be left to the merits stage. The Court should rule on them only after the Parties have presented their arguments and evidence at that stage.

65. 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).

66. I disagree with the majority's analysis and its conclusion on Qatar's claim of indirect discrimination. If it were proven on the facts that the measures have an unjustifiable disproportionate prejudicial impact on an identifiable group distinguished by national origin and that they were not based exclusively on nationality, the measures would constitute racial discrimination within the meaning of the Convention, in accordance with the notion of indirect discrimination. The majority provides little analysis in support of its conclusion that while the measures based on current Qatari nationality may have “collateral or secondary effects” on Qataris, 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”. By drawing that conclusion, the majority has in effect determined the dispute on the merits at the preliminary objections stage.

67. In the case concerning the 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), the Court pointed out that, at the preliminary objections stage, it only needs to ascertain whether the challenged measures are capable of affecting the rights protected by CERD, and that it does not need to satisfy itself that the measures actually constitute racial discrimination within the meaning of Article 1, paragraph 1, of CERD, or to what extent certain acts may be covered by Article 1, paragraphs 2 and 3, of CERD. The Court explained that “[both of these] determinations concern issues of fact, largely depending on evidence regarding the purpose or effect of the measures alleged . . . and are thus properly a matter for the meritsFootnote 46. The same is true for Qatar's claim of indirect discrimination in the present case.

68. 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”Footnote 47. Judges Tomka, Gaja and Gevorgian observed in addition that “[the] possibility [of indirect discrimination] has not been suggested by Qatar”Footnote 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”Footnote 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 entitiesFootnote 50. In its Memorial, Qatar also contended that the UAE's measures had a discriminatory “effect” on QatarisFootnote 51. Nevertheless, it is true that the Applicant significantly developed its arguments on indirect discrimination at the preliminary objections stage, in its Written StatementFootnote 52 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).

69. It is nonetheless important to keep in mind that in preliminary objection proceedings, the parties have only one chance to exchange written submissions. After Qatar submitted its Written Statement in response to the UAE's Preliminary Objections, the UAE had no further opportunity to refute in writing the arguments made by the Applicant therein, including those pertaining to the claim of indirect discrimination. During the oral proceedings, the Parties did exchange arguments on indirect discrimination, but only to a limited extent and not thoroughly. Qatar's claim of indirect discrimination should have been examined in detail by the Court at the merits stage, after being fully apprised of the relevant facts, evidence and arguments of the Parties.

70. Under Article 79ter, paragraph 4, of the Rules of Court, when it is called upon to rule on a preliminary objection, the Court shall uphold or reject it, or “declare that, in the circumstances of the case, [it] does not possess an exclusively preliminary character”.

71. The Court has previously expressed its view on the resolution of preliminary objections as follows:

“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.”Footnote 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”Footnote 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.

72. For the reasons set out above, the Court should have declared that, in the circumstances of the present case, the first preliminary objection of the UAE does not have an exclusively preliminary character.

73. This conclusion is in line with the final submissions that the Applicant made at the end of the oral pleadings. It asked the Court to “(a) Reject the Preliminary Objections presented by the UAE; . . . (d) Or, in the alternative, reject the Second Preliminary Objection . . . and hold . . . that the First Preliminary Objection . . . does not possess an exclusively preliminary character”Footnote 55. Qatar's claim of indirect discrimination should have been examined in detail by the Court at the merits stage, on the basis of facts and evidence submitted by the Parties. The conclusion drawn in paragraph 72 above should not be interpreted as prejudging in any way the potential findings of the Court on the merits.

(Signed)  Iwasawa Yuji.

Déclaration de M. le juge ad hoc Daudet

Efforts du Qatar en vue d'un règlement judiciaire — Seconde exception préliminaire non examinée par la Cour — Article 22 de la CIEDR — Rôle du Comité de la CIEDR — Accord avec le raisonnement et la décision de la Cour sur la première exception préliminaire — Distinction entre «origine nationale» et «nationalité» — Incompétence ratione materiae — Intérêt du caractère obligatoire de l'ordonnance en indication de mesures conservatoires — Caractère exclusivement préliminaire de la première exception — Procédure de conciliation — Règlement diplomatique du litige.

1. La Cour a déjà eu à connaître du contexte factuel dans lequel se situe la présente affaire (voir arrêt, par. 26 et suiv.), non seulement à l'occasion de son ordonnance en indication de mesures conservatoires à la demande du Qatar (Application de la convention internationale sur l’élimination de toutes les formes de discrimination raciale (Qatar c. Emirats arabes unis), mesures conservatoires, ordonnance du 23 juillet 2018, C.I.J. Recueil 2018 (II), p. 406) mais aussi dans le cadre de ses arrêts du 14 juillet 2020 relatifs à l’Appel concernant la compétence du Conseil de l'OACI en vertu de l'article 84 de la convention relative à l'aviation civile internationale (Arabie saoudite, Bahreïn, Egypte et Emirats arabes unis c. Qatar) et l’Appel concernant la compétence du Conseil de l'OACI en vertu de l'article II, section 2, de l'accord de 1944 relatif au transit des services aériens internationaux (Bahreïn, Egypte et Emirats arabes unis c. Qatar) (par. 21–26). C'est dire que le Qatar a eu à cœur de chercher à régler pacifiquement et par les voies de droit un différend aux conséquences particulièrement lourdes pour lui l'opposant à ses voisins de la région du Golfe à la suite des violations alléguées par ces derniers, à son encontre, des accords de Riyad de 2013 et 2014 et de son prétendu soutien au terrorisme international.

2. La saisine de la Cour n’était pas possible par la voie du compromis à l’évidence exclu par les Parties; quant à la déclaration de l'article 36, paragraphe 2, du Statut de la Cour, aucune d'elles n'y avait souscrit. Restait la formule de la clause compromissoire inscrite dans un traité. L'article 22 de la CIEDR répondant à cette condition, cette convention est apparue comme étant la seule base possible de compétence pour fonder la requête du Qatar. Mais en l'espèce sa mise en œuvre n'allait pas de soi et les Emirats arabes unis ne s'y sont pas trompés en déposant des exceptions préliminaires d'incompétence de la Cour.

3. Les deux exceptions préliminaires plaidées par les Emirats arabes unis (qui en avaient initialement déposé trois) étant indépendantes l'une de l'autre. Selon sa jurisprudence rappelée au paragraphe 114 de son arrêt, la Cour ayant retenu la première, elle n'a pas estimé nécessaire d'examiner la seconde relative à la procédure de l'article 22 de la CIEDR.

4. Si elle avait traité de cette exception, je me serais prononcé en faveur de son rejet. Au vu des éléments du dossier, j'estime en effet que le Qatar a poussé la négociation préalable requise pour saisir la Cour internationale de Justice jusqu’à un point où sa poursuite est apparue vaine et conduisait à une «impasse» (Application de la convention internationale sur l’élimination de toutes les formes de discrimination raciale (Qatar c. Emirats arabes unis), mesures conservatoires, ordonnance du 23 juillet 2018, C.I.J. Recueil 2018 (II), p. 419, par. 36; Application de la convention internationale sur l’élimination de toutes les formes de discrimination raciale (Géorgie c. Fédération de Russie), exceptions préliminaires, arrêt, C.I.J. Recueil 2011 (I), p. 130, par. 150). La réalisation de cette seule condition préalable suffisait à établir la compétence de la Cour puisque l'autre condition préalable inscrite à l'article 22, à savoir l'utilisation des procédures prévues par la CIEDR en ses articles 11 à 13, ne présente pas un caractère cumulatif avec la première mais bien alternatif ainsi qu'en a récemment décidé la Cour (Application de la convention internationale pour la répression du financement du terrorisme et de la convention internationale sur l’élimination de toutes les formes de discrimination raciale (Ukraine c. Fédération de Russie), exceptions préliminaires, arrêt, C.I.J. Recueil 2019 (II), p. 600, par. 113).

5. Le Qatar a pourtant eu recours à cette deuxième procédure de l'article 22 débouchant sur une conciliation. Il l'a fait avant même de saisir la Cour et de manière indépendante de cette saisine puisqu'elle n'en constituait pas une condition préalable déjà remplie par l’échec des négociations, en sorte que les deux procédures, devant la Cour et devant les organes de la CIEDR, se sont poursuivies de manière parallèle. Les Emirats arabes unis, qui ont retiré à l'audience leur troisième exception préliminaire par laquelle cet «abus de procédure» du Qatar devait conduire à «l'irrecevabilité des demandes» de celui-ci (exceptions préliminaires des Emirats arabes unis, vol. I, par. 238), ont néanmoins plaidé que le Qatar aurait dû surseoir à la saisine de la Cour tant que la procédure de conciliation de la CIERD n’était pas achevée.

6. Les différends portés devant la Cour ne sont jamais mineurs et certainement pas celui-ci, qui dure depuis le 5 juin 2017. Le désir des deux Parties qu'il prenne fin ne fait pas de doute mais on peut comprendre le souci particulier du Qatar que ce soit au plus tôt. Je vois donc dans la poursuite de ces deux procédures parallèles un moyen d'y aider et je ne perçois pas d'inconvénient et moins encore d'irrégularité à cette situation dès lors que les procédures se déroulent devant deux organes différents et avec des effets différents. Dans un cas, la Cour, «organe judiciaire principal des Nations Unies», qui rend aujourd'hui un arrêt ayant le caractère de res judicata, dans l'autre, un organe de conciliation qui peut, sur la base du droit international, offrir une solution à un différend soumise à la libre acceptation des Parties. La Cour s’étant aujourd'hui déclarée incompétente, et le Comité de la CIEDR ayant, le 17 août 2019, accepté de recevoir la demande du Qatar fondée sur l'article 11 de la convention et de constituer une commission de conciliation prévue à l'article 12. Celle-ci est entrée en fonctions le 1er mai 2020, il est donc désormais possible que la commission de conciliation de la CIERD trouve une solution, tout en ayant à l'esprit la décision de la Cour.

7. La Cour s'est déclarée incompétente en retenant la première exception préliminaire des Emirats arabes unis. Je regrette infiniment que, de ce fait, elle ne puisse trancher ce différend et, peut-être, donner au Qatar la possibilité d’être rétabli dans ses droits dont, personnellement, je pense qu'il a été privé par les Emirats arabes unis.

8. J'ai néanmoins voté en faveur de l'incompétence de la Cour car je partage totalement les motifs de l'arrêt. En particulier, la position exprimée par la Cour dans son interprétation de l'article premier, paragraphe 1, de la CIEDR aboutissant à considérer que «l'origine nationale» qui s'y trouve inscrite est distincte de la «nationalité» qui n'y figure pas, que l'origine nationale n'englobe pas la nationalité et que les deux notions ne sont pas équivalentes ou interchangeables, ni dans l'esprit ni dans la lettre. J'ai partagé ce point de vue car j'ai estimé en toute conscience que telle était l'interprétation correcte en droit de l'article premier, paragraphe 1, et que cette considération prévalait donc sur toute autre.

9. Je rappelle toutefois que, par l'ordonnance de 2018 (Application de la convention internationale sur l’élimination de toutes les formes de discrimination raciale (Qatar c. Emirats arabes unis), mesures conservatoires, ordonnance du 23 juillet 2018, C.I.J. Recueil 2018 (II), p. 433, par. 79) en faveur de laquelle j'ai voté, la Cour a indiqué les mesures conservatoires les plus importantes parmi celles qui ont été demandées par le Qatar. Or, depuis l'arrêt de principe (LaGrand (Allemagne c. Etats-Unis d'Amérique), arrêt, C.I.J. Recueil 2001, p. 506, par. 109) suivi par une jurisprudence constante (voir Activités armées sur le territoire du Congo (République démocratique du Congo c. Ouganda), arrêt, C.I.J. Recueil 2005, p. 258, par. 263; Certaines activités menées par le Nicaragua dans la région frontalière (Costa Rica c. Nicaragua), mesures conservatoires, ordonnance du 8 mars 2011, C.I.J. Recueil 2011 (I), p. 26–27, par. 84; Application de la convention internationale sur l’élimination de toutes les formes de discrimination raciale (Qatar c. Emirats arabes unis), mesures conservatoires, ordonnance du 23 juillet 2018, C.I.J. Recueil 2018 (II), p. 433, par. 77), l'ordonnance de la Cour indiquant des mesures conservatoires a un caractère obligatoire. Cette situation a donc permis au Qatar d’être rétabli dans une partie importante de ses droits, sous réserve de la bonne exécution de l'ordonnance par les Emirats arabes unis.

10. Je me suis aussi longuement interrogé sur la question de savoir si la question de l'interprétation de l'article premier, paragraphe 1, avait ou non un caractère exclusivement préliminaire. On peut souvent trouver des liens, plus ou moins distendus, entre la compétence et le fond. L'interprétation de ce qui détermine la compétence nécessite fréquemment d'analyser des éléments de fait ou de preuve qui relèvent du fond, la question posée ne revêtant alors pas un caractère exclusivement préliminaire. Tel ne me semble pas être ici le cas. La nationalité est une notion bien connue en droit international et la définir par rapport à l'origine nationale pour dire si, en inscrivant l'une et pas l'autre à l'article premier, paragraphe 1, de la CIEDR, on entend ou non les deux à la fois est une question purement juridique et abstraite à laquelle, pour y répondre, il n'est pas besoin d'examiner quoi que ce soit au fond. J'ai donc estimé qu'il y aurait un artifice à considérer que la question n'avait pas un caractère exclusivement préliminaire.

11. Au total, par conséquent, la décision de la Cour est à mes yeux parfaitement fondée du point de vue juridique. Pour rigoureuse qu'elle puisse sembler, elle est la simple et seule possible application du droit international. Bien évidemment, je ne la lis pas comme une justification des actions entreprises par les Emirats arabes unis à l'encontre du Qatar dont nombre d'entre elles constituent des violations des droits de l'homme selon plusieurs conventions internationales. Mais en l'espèce, la CIEDR était celle qui, sans comporter de réserves des deux Etats, contenait une clause compromissoire permettant de saisir la Cour. Elle seule pouvait donc être invoquée comme je l'ai dit ci-dessus (paragraphe 2). Il aurait alors éventuellement appartenu à la commission de conciliation de proposer une solution à la suite de l'arrêt de la Cour.

12. Cette possibilité avait d'ailleurs reçu l'assentiment des Emirats arabes unis dont l'ambassadeur déclarait lors de l'audience de clôture : «We will engage in good faith with the Conciliation Commission even if you find in our favour on the issue of nationality» (CR 2020/8, p. 42, par. 8 (AlNaqbi)).

13. Cependant, quelques semaines plus tard, un processus de réconciliation a été initié entre les pays du Golfe. On se réjouira que tous les différends doivent ainsi se régler pacifiquement au moment même où la Cour rend son arrêt qui, faut-il le rappeler, ne concerne que sa compétence, sans examen du fond d'un différend dont l'extinction par les Etats eux-mêmes est annoncée dans le cadre d'une sérénité retrouvée.

(Signé)  Yves Daudet.

__________________

Footnotes

1 Application of Qatar, para. 65.

2 Application of Qatar, para. 66.

3 Preliminary Objections of the United Arab Emirates, Part III.

4 Ibid., Part IV.

5 Ibid., Part V.

6 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 25; 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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 575, para. 24.

7 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 26.

8 See Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015 (II), pp. 602–603, para. 26: “the Court bases itself . . . on the application, as well as the written and oral pleadings of the parties. In particular, it takes account of the facts that the Applicant identifies as the basis for its claim (see Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 263, para. 30; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 467, para. 31; Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 449, para. 31; pp. 449–450, para. 33)”.

9 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), pp. 809–810, para. 16.

10 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019 (I), p. 23, para. 36.

11 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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 584, paras. 57–58.

12 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 417, paras. 27–28.

13 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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 595, paras. 94–95.

14 Memorial of Qatar, Vol. I, pp. 131–134, paras. 3.96–3.100 and Vol. VI, Ann. 162, Expert Report of Dr. J. E. Peterson of 9 April 2019, in which he documents the Qataris as “a distinct people, as a group of individuals who belong to a long-standing historical-cultural community defined by a distinct heritage, particular family or tribal affiliations, shared national traditions and culture, and geographic ties to the peninsular of Qatar”.

15 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 427, para. 54.

16 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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), pp. 599–600, paras. 110–113.

17 On 8 March 2018, Qatar filed a communication with the CERD Committee requesting that the UAE take all necessary steps to end the measures enacted and implemented since 5 June 2017 (see paragraph 31 of the Judgment).

18 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 420, paras. 37–38.

19 Meaning “a doctrine under which one purchasing an interest in property involved in a pending suit does so subject to the adjudication of the rights of the parties to the suit”.

20 Meaning “he who has chosen one means of dispute settlement, cannot have recourse to another”.

21 CR 2020/6, pp. 53–67, paras. 1–32 (Forteau).

22 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), pp. 420–421, paras. 39–40.

23 Oral argument by Sir Daniel Bethlehem.

__________________

1 Application of Qatar, para. 3.

2 Memorial of Qatar (MQ), Vol. I, para. 1.7.

3 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 26; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 263, para. 30; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 467, para. 31; Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 449, para. 31, pp. 449–450, para. 33.

4 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), paras. 46, 106; Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), para. 16.

5 CR 2020/7, p. 33, para. 36 (Klein); CR 2020/7, p. 40, para. 26 (Amirfar).

6 CR 2020/6, p. 52, para. 56 (Sheeran).

7 United Nations, Treaty Series, Vol. 1155, p. 340.

8 MQ, Vol. I, para. 3.30.

9 Preliminary Objections of the United Arab Emirates, para. 76.

10 MQ, Vol. I, para. 1.25.

11 Art. 31, para. 1, VCLT; Yearbook of the International Law Commission, 1966, Vol. II, p. 221.

12 United Nations, Official Records of the General Assembly, Twentieth Session, Third Committee, doc. A/C.3/SR 1304 (14 October 1965), p. 85, para. 23.

13 United Nations, Official Records of the General Assembly, Twentieth Session, Third Committee, doc. A/C.3/SR 1299 (11 October 1965), p. 60, para. 37.

14 United Nations General Assembly, Twentieth Session, Report of the Third Committee — Draft International Convention on the Elimination of All Forms of Racial Discrimination, doc. A/6181 (18 December 1965), p. 12, para. 32.

15 United Nations, Official Records of the Economic and Social Council, Commission on Human Rights, Twentieth Session, doc. E/CN.4/SR 809 (14 May 1964), p. 5.

16 United Nations, Official Records of the General Assembly, Twentieth Session, Third Committee, doc. A/C.3/SR 1299 (11 October 1965), p. 59, para. 30.

17 Michael Banton, “Decision-taking in the Committee on the Elimination of Racial Discrimination”, in The Future of UN Human Rights Treaty Monitoring, Philip Alston, James Crawford (eds.), Cambridge, Cambridge University Press, 2000, pp. 55–57.

18 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 43; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 179, para. 109; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 244, para. 219; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), p. 663, para. 66.

19 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), p. 663, para. 66.

20 Ibid.

21 Ibid.

22 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 193, para. 136.

23 European Convention on Human Rights, Arts. 8 (2) and 15; ICCPR, Arts. 12, 19 (2) (b), 21 and 22; International Covenant on Economic, Social and Cultural Rights, Article 8 (1) (a) and (c); Inter-American Convention on Human Rights, Arts. 13 (2) (b), 15, 16, 22; African Charter on Human and Peoples’ Rights, Arts. 11, 12 (2) and 29.

__________________

1 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 810, para. 16.

2 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo), Merits, Judgment, I.C.J. Reports 2010 (II), pp. 663–664, para. 66.

4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 192–193, para. 136.

5 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, p. 215, para. 7; declaration of Judge Crawford.

1 Human Rights Committee, General Comment No. 15 on the position of aliens under the Covenant, 22 July 1986, paras. 1–2.

2 Human Rights Committee, Gueye et al. v. France, 3 Apr. 1989, Communication No. 196/1985, para. 9.4.

3 E.g. Human Rights Committee, Simunek et al. v. Czech Republic, 19 July 1995, Communication No. 516/1992, para. 11.6; Adam v. Czech Republic, 23 July 1996, Communication No. 586/1994, para. 12.6; Blazek et al. v. Czech Republic, 12 July 2001, Communication No. 857/1999, para. 5.8; Des Fours Walderode v. Czech Republic, 30 Oct. 2001, Communication No. 747/1997, para. 8.4. See also Human Rights Committee, Karakurt v. Austria, 4 Apr. 2002, Communication No. 965/2000, para. 8.4 (finding a distinction between aliens made solely on the basis of their different nationalities concerning their capacity to stand for election to a works council to be discrimination in violation of Article 26).

4 CESCR, General Comment No. 20 on non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), 18 May 2009, para. 30.

5 E.g. ECtHR, Andrejeva v. Latvia, Grand Chamber, judgment of 18 Feb. 2009, No. 55707/00, para. 87; Biao v. Denmark, Grand Chamber, judgment of 24 May 2016, No. 38590/10, para. 93.

6 E.g. IACtHR, Juridical Condition and Rights of Undocumented Migrants, advisory opinion of 17 Sept. 2003, OC-18/03, para. 118; Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, advisory opinion of 19 Aug. 2014, OC-21/14, para. 53.

7 Human Rights Committee, General Comment No. 15, supra note 1, para. 2.

8 E.g. Human Rights Committee, General Comment No. 18 on non-discrimination, 9 Nov. 1989, para. 13; ECtHR, Biao v. Denmark, supra note 5, para. 90; IACtHR, Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, advisory opinion of 19 Jan. 1984, OC-4/84, para. 57.

9 E.g. Human Rights Committee, van Oord v. Netherlands, 23 July 1997, Communication No. 658/1995, para. 8.5; ECtHR, C v. Belgium, judgment of 7 Aug. 1996, No. 21794/93, para. 38.

10 CERD Committee, General Recommendation XXX on discrimination against non-citizens, 5 Aug. 2004.

11 Ibid., para. 2. This paragraph essentially repeats what the Committee had already affirmed in 1993. CERD Committee, General Recommendation XI on non-citizens, 9 Mar. 1993, para. 3.

12 CERD Committee, General Recommendation XXX, supra note 10, para. 3.

13 CERD Committee, Decision on the jurisdiction of the inter-State communication submitted by Qatar against the UAE dated 27 Aug. 2019, UN doc. CERD/C/99/3, para. 57.

14 United Nations, Official Records of the General Assembly, Twentieth Session, Third Committee, “Draft International Convention on the Elimination of All Forms of Racial Discrimination”, UN doc. A/6181, 18 Dec. 1965, p. 12, para. 32.

15 CERD Committee, Decision on the admissibility of the inter-State communication submitted by Qatar against Saudi Arabia dated 27 August 2019, UN doc. CERD/C/99/6, para. 12.

16 ECtHR, D.H. and Others v. Czech Republic, Grand Chamber, judgment of 13 Nov. 2007, No. 57325/00, para. 196.

17 ECtHR, Biao v. Denmark, supra note 5, para. 94.

18 ECtHR, Andrejeva v. Latvia, supra note 5, para. 87; Biao v. Denmark, supra note 5, para. 93.

19 See also ECtHR, Biao v. Denmark, supra note 5, joint dissenting opinion of Judges Villiger, Mahoney and Kjølbro, para. 30 (“a wide margin of appreciation is afforded to member States in relation to differences in treatment on the basis of ‘other status’ [in this case length of nationality], as opposed to ‘national’ or ‘ethnic’ origin”).

20 E.g. Joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration, 16 Nov. 2017, para. 3.

21 Human Rights Committee, Gueye et al. v. France, supra note 2, para. 9.4; emphasis added.

22 Human Rights Committee, Karakurt v. Austria, supra note 3, individual opinion by Committee Members Sir Nigel Rodley and Mr. Martin Scheinin (partly dissenting).

23 CESCR, General Comment No. 20, supra note 4, para. 24.

24 Ibid., paras. 15 and 30.

25 ECtHR, Luczak v. Poland, Fourth Section, judgment of 27 Nov. 2007, No. 77782/01, para. 46. See also ECtHR, Andrejeva v. Latvia, supra note 5, paras. 87–92 (examining under Article 14 of the European Convention a distinction based on the “sole criterion” of nationality without any reference to national origin). For the IACtHR, see e.g. Juridical Condition and Rights of Undocumented Migrants, supra note 6, para. 101 (listing “nationality” separately from “national . . . origin”).

26 CERD Committee, Diop v. France, 18 Mar. 1991, Communication No. 2/1989, para. 6.6.

27 CERD Committee, Quereshi v. Denmark, 9 Mar. 2005, Communication No. 33/2003, para. 7.3. See also CERD Committee, P.S.N. v. Denmark, 8 Aug. 2007, Communication No. 36/2006, para. 6.4.

28 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, p. 215, para. 7, declaration of Judge Crawford.

29 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 437, para. 6, joint declaration of Judges Tomka, Gaja and Gevorgian.

30 CERD Committee, General Recommendation XIV on article 1, paragraph 1, of the Convention, 17 Mar. 1993, para. 2.

31 CERD Committee, L.R. v. Slovakia, 7 Mar. 2005, Communication No. 31/2003, para. 10.4. See also CERD Committee, General Recommendation 32 on the meaning and scope of special measures in the International Convention on the Elimination of All Forms Racial Discrimination, Aug. 2009, para. 7.

32 Human Rights Committee, Derksen v. Netherlands, 1 Apr. 2004, Communication No. 976/2001, para. 9.3. See also Human Rights Committee, Althammer et al. v. Austria, 8 Aug. 2003, Communication No. 998/2001, para. 10.2.

33 CESCR, General Comment No. 20, supra note 4, para. 10.

34 Committee on the Elimination of Discrimination against Women, General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, 19 Oct. 2010, para. 16.

35 ECtHR, First Section, J.D. and A v. United Kingdom, judgment of 24 Oct. 2019, Nos. 32949/17 and 34614/17, para. 85.

36 IACtHR, Nadege Dorzema et al. v. Dominican Republic, judgment of 24 Oct. 2012, para. 235.

37 CERD Committee, B.M.S. v. Australia, 12 Mar. 1999, Communication No. 8/1996, paras. 9.2, 10 and 11.1.

38 CERD Committee, General Recommendation XI, supra note 11, para. 2.

39 CERD Committee, General Recommendation XXX, supra note 10.

40 Ibid., para. 4. The Committee thus employed the framework it had used for discrimination under Article 1, paragraph 1, to examine differential treatment based on citizenship. See CERD Committee, General Recommendation XIV, supra note 30, para. 2.

41 CERD Committee, Decision on the admissibility of the inter-State communication submitted by Qatar against the UAE dated 27 August 2019, UN doc. CERD/C/99/4, paras. 57–63.

42 CR 2020/9, p. 17, para. 19 (Amirfar).

43 Memorial of Qatar (MQ), Vol. VI, Ann. 162, Expert Report of Dr. J. E. Peterson, 9 Apr. 2019.

44 CR 2020/8, p. 14, para. 10 (Bethlehem); emphasis in the original.

45 MQ, para. 3.109; Written Statement of Qatar on the Preliminary Objections of the United Arab Emirates (WSQ), para. 2.111.

46 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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 595, para. 94; emphasis added.

47 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 436, paras. 4–5, joint declaration of Judges Tomka, Gaja and Gevorgian; p. 475, para. 1, dissenting opinion of Judge Crawford; pp. 481–483, paras. 2–7, dissenting opinion of Judge Salam.

48 Ibid., p. 437, para. 6, joint declaration of Judges Tomka, Gaja and Gevorgian.

49 CR 2020/8, p. 28, para. 25 (Sheeran).

50 Application of Qatar, para. 66; Request for the indication of provisional measures of Qatar, para. 19.

51 MQ, Chap. III, Sec. I.B.2.

52 WSQ, Chap. II, Sec. III.

53 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 852, para. 51; emphasis added.

54 See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 133–134, para. 49; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 28–29, para. 50.

55 CR 2020/9, p. 45, para. 9 (Al-Khulaifi).

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References

ENDNOTES

1 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. U.A.E.), Preliminary Objections, Judgment (Feb. 4, 2021), https://www.icj-cij.org/public/files/case-related/172/172-20210204-JUD-01-00-EN.pdf.

2 Id. ¶ 115.

3 Article 22 ICERD reads: “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.”

4 Article 1(1) reads: “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.”

5 Article 11(1) reads: “If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee.”

6 Qatar v. U.A.E., Case No. CERD-ISC 2018/2 (Mar. 8, 2018).

7 Admissibility of the Inter-State Communication submitted by Qatar against the United Arab Emirates, Case No. CERD/C/99/4, Decision on Admissibility ¶ 63 (Aug. 27, 2019), https://www.ohchr.org/Documents/HRBodies/CERD/CERD-C-99-4.pdf.

8 CERD, General Recommendation XXX on Discrimination against Non-citizens, CERD/C/64/Misc.11/rev.3 (2004).

9 See Rep. of the Comm. on the Elimination of Racial Discrimination, U.N. Doc. A/75/18 (2019) ¶ 45, which lists the members of the ad hoc Conciliation Commission appointed by the Committee.

10 Qatar v. U.A.E., CR2020/7, p. 35 ¶ 6 (Sept. 2, 2020), https://www.icj-cij.org/public/files/case-related/172/172-20200902-ORA-01-00-BI.pdf.

11 Ahmadou Sadio Diallo (Rep. Guinea v. Dem. Rep. Congo), Judgment, 2010 I.C.J. Rep. 639, ¶ 66 (Nov. 30).

12 Qatar v. U.A.E., supra note 10, p. 47 ¶ 46.

13 Qatar v. U.A.E., supra note 1, p. 26 ¶ 81.

14 Id. p. 27 ¶ 83.

15 Id. p. 28 ¶ 87.

16 Id. Dissenting Opinion of Judge Robinson, ¶ 7.

17 Id. Dissenting Opinion of Judge Bhandari, ¶ 10; Dissenting Opinion of Judge Robinson, ¶ 7.

18 Id. Dissenting Opinion of Judge Robinson, ¶ 11.

19 Id. ¶ 13.

20 Id. p. 32 ¶ 101.

21 Id. Dissenting Opinion of Judge Bhandari, ¶ 21.

22 Id. Dissenting Opinion of Judge Robinson, ¶ 13.

23 Qatar v. U.A.E., CR2020/8 p. 18 ¶ 23 (Sept. 4, 2020), https://www.icj-cij.org/public/files/case-related/172/172-20200904-ORA-01-00-BI.pdf.

24 Decision of the ad hoc Conciliation Commission on the request for suspension submitted by Qatar concerning the interstate communication Qatar v. United Arab Emirates (March 15, 2021), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/1_Global/Decision_9381_E.pdf.

25 Id. ¶ 4.

26 Id. ¶ 5.

27 Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 933.

28 CERD's view of “national … origin” has also been articulated in the same terms in its admissibility decision in Qatar v. Kingdom of Saudi Arabia, a dispute that has not been before the Court, and is progressing in accordance with Articles 11–13. CERD, See Admissibility of the Inter- State Communication submitted by Qatar against the Kingdom of Saudi Arabia, CERD/C/99/6, ¶ 19 (Aug. 27, 2019). This communication has similarly been suspended but the ad hoc Conciliation Commission remains seized of the matter. See Decision of the ad hoc Conciliation Commission on the request for suspension submitted by Qatar concerning the interstate communication Qatar v. Kingdom of Saudi Arabia ¶ 5 (March 15, 2021), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/1_Global/Decision_9382_E.pdf.

29 They are interrelated in that the Articles 11–13 mechanism can serve to satisfy the “preconditions” of Article 22. They are independent in that both may be initiated and completed without any reference to the other, seen for example in Palestine v. Israel before the Committee, and Ukraine v. Russian Federation before the Court. Palestine v. Israel cannot come before the Court due to Israel's reservation to Article 22. Ukraine v. Russian Federation is at the merits stage before the Court without engaging the Articles 11–13 communications mechanism, Ukraine having satisfied the alternative Article 22 “precondition” of “negotiation.”

30 Judge Donoghue, Reflections on the 75th Anniversary of the International Court of Justice (Apr. 16, 2021), https://www.un.org/en/un-chronicle/reflections-75th-anniversary-internationalcourt-justice.