A Study in Contrasting Jurisdictional Methodologies: The International Court of Justice’s February 2021 Judgments in Iran v. USA and Qatar v. UAE

The International Court of Justice issued two significant Decisions on Jurisdiction in early February: its 3 February 2021 Judgment in Iran v. United States (where the Court accepted jurisdiction over a dispute in which Iran alleged that the United States breached the 1955 Treaty of Amity between these two States) [hereafter, Iran v. US Judgment on Preliminary Objections], and the 4 February 2021 Judgment in Qatar v. United Arab Emirates (UAE) (where the Court declined jurisdiction over a dispute in which Qatar alleged that the United Arab Emirates breached the Convention on the Elimination of Racial Discrimination) [hereafter, Qatar v. UAE Judgment on Preliminary Objections].  The Court voted overwhelmingly to reject the United States’ preliminary objections (on three objections, unanimously, and on three other objections, by a vote of 15 to 1) in Iran v. United States (para. 114 of the Iran v. US Judgment), but voted on a more narrow majority to accept the UAE’s two preliminary objections (by 11 votes to 6) in Qatar v. UAE (para. 115 of the Qatar v. UAE Judgment).

We will doubtless have occasion over the next few days to separately discuss each of these judgments by other contributors, but for purposes of this post, I compare and contrast the jurisdictional methodologies employed by the Court on two fronts.  First, I examine how the Court characterized the ratione materiae or subject-matter in each dispute, and invite some observations as to why the Court hewed closely to Iran’s characterization of the dispute (as one pertaining to the 1955 Treaty of Amity rather than one really involving the Joint Comprehensive Plan of Action/JCPOA, as the United States argued), but did not do so when it came to Qatar’s characterization of the dispute (as one involving racial discrimination as Qataris, which the Court whittled down into a dispute over the UAE’s differential treatment of non-nationals, and not racial discrimination against persons due to their “national origin”).  Second, I turn to the Court’s use of the unitary system of treaty interpretation under Article 31 of the Vienna Convention on the Law of Treaties, and raise some queries as to why the Court favored a highly textualist reading of the 1955 Treaty of Amity in the Iran v. United States case, but emphasized an interpretation of the Convention on the Elimination of Racial Discrimination (CERD) on textual and contextual grounds in Article 31 of the Vienna Convention on the Law of Treaties (VCLT), and even went further by engaging in a VCLT Article 32 travaux preparatoires/supplementary means of interpretation analysis. 

Ultimately, I find that both these contrasting jurisdictional methodologies illustrate much of what Martti Koskenniemi describes about international law as an “argumentative practice“, when political claims ordinarily oscillate in international legal reasoning between arguments on legal normativity and arguments on concreteness and social facts.  The fact that the argumentative practice swung this wildly as to the kind of jurisdictional methodologies used in these two judgments on jurisdiction – issued by the International Court of Justice just one day apart from each other – starkly makes the point that the argumentative practice of international law does not always bode well for the predictability of cases, at least for those of us international law academics and practitioners who teach these cases to our students or cite these decisions in our legal briefs.  Perhaps, these contrasts also gently remind us all that the International Court of Justice does not decide disputes under any declared common law doctrine of precedent or any articulated policy of jurisprudence constante forming part of its decision-making rubric.  It does raise a related question of larger consequence: if jurisdictional methodologies vary from one dispute to the other – and all without a transparent explanation for the change of jurisdictional methodology – does the observable variability or changefulness in methodologies affect the authoritativeness of the Court’s decision-making? How does its methodological selection advance (or retard) its international judicial function?

Summary of the 3 February 2021 Judgment in Iran v. USA

In its Application with Request for the Indication of Provisional Orders, Iran alleged that the United States’ 8 May 2018 reimposition of sanctions that had been previously lifted or waived in connection with the implementation of the Joint Comprehensive Plan of Action (JCPOA) – as well as further sanctions issued by then US President Trump through subsequent executive orders – ultimately violated the 1955 Treaty of Amity, Economic Relations, and Consular Rights between Iran and the United States.  On 3 October 2018, the International Court of Justice issued its Order indicating provisional measures, declaring, among others, that the United States should remove any impediments to the free exportation to Iran of medicines and medical devices, foodstuffs and agricultural commodities, parts and services necessary for the safety of civil aviation.

In its 3 February 2021 Judgment, the Court classified the United States’ five preliminary objections into three broad categories:

1) those that relate to the jurisdiction ratione materiae of the Court under Article XXI paragraph 2 of the 1955 Treaty of Amity;

2) those that pertain to the alleged inadmissibility of Iran’s Application, on the grounds of abuse of process and judicial propriety; and

3) those that pertain to subparagraphs (b) and (d) of Article XX, paragraph 1 of the 1955 Treaty of Amity, for which the United States sought a decision before any merits proceedings.  

As to the first category, the United States essentially argued that the true subject matter of the dispute is the application of another treaty, the JCPOA, and not the 1955 Treaty of Amity, and that the majority of the US sanctions measures challenged by Iran pertained to trade and transactions between Iran and third countries, companies, and nationals, not between Iran and United States nationals and companies [Iran v. US Judgment on Preliminary Objections, paras. 39-40, 43-46].  The Court affirmed that the Applicant could indeed specify the subject of the dispute, but stressed that it ultimately was “for the Court to determine, taking account of the parties’ submissions, the subject-matter of the dispute of which it is seised.” [Iran v. US Judgment on Preliminary Objections, para. 52].  The Court explicitly stated that “[t]o identify the subject-matter of the dispute, the Court bases itself on the application, as well as on 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.” [Iran v. US Judgment on Preliminary Objections, para. 53. Emphasis added.].  The Court’s articulation of this explicit test is important, because in its Qatar v. UAE Judgment on Preliminary Objections, it would not be clear at all if the Court applied this test anymore in reaching its own characterization of the dispute therein.

The Court took pains to stress that the “[t]he fact that the dispute between the Parties has arisen in connection with and in the context of the decision of the United States to withdraw from the JCPOA does not in itself preclude the dispute from relation to the interpretation of application of the Treaty of Amity…Certain acts may fall within the ambit of more than one instrument and a dispute relating to those acts may relate to the ‘interpretation or application’ of more than one treaty or other instrument.” [Iran v. US Judgment on Preliminary Objections, para. 56].  At this point of its analysis, the Court again stressed its reliance on Iran’s formulation of its own claims as the Applicant in the case, observing that the Court’s duty to “isolate the real issue in the case and to identify the object of the claim does not permit it to modify the object of the submissions…the Court cannot infer the subject-matter of a dispute from the political context in which the proceedings have been instituted, rather than basing itself on what the applicant has requested of it.” [Iran v. US Judgment on Preliminary Objections, para. 59. Emphasis added.]. Relying heavily on how Iran characterized its own claim, the Court thus emphatically declined the first category of preliminary objections by a unanimous vote. [cf. dispositive portion in para. 114(1) of the Iran v. US Judgment on Preliminary Objections].

The Court would then go on to dismiss the rest of the United States’ preliminary objections.  It held that the United States’ allegation of measures beyond the scope of the 1955 Treaty of Amity – the so-called ‘third country measures’ where US sanctions extended to transactions between Iran and other countries, companies, or nationals other than the United States – ultimately “does not concern all of Iran’s claims, but only the majority of them”. [Iran v. US Judgment on Preliminary Objections, para. 76].  The Court concluded that “the fact that some of the measures challenged…directly target third States or the nationals of companies of third States does not suffice for them to be automatically excluded from the ambit of the Treaty of Amity.  Only through a detailed examination of each of the measures in question, of their reach and actual effects, can the Court determine whether they affect the performance of the United States’ obligations arising out of the provisions of the Treaty of Amity invoked by Iran…”. [Iran v. US Judgment on Preliminary Objections, para. 81.  Emphasis added.].  Under these circumstances, the Court saw that this specific preliminary objection raised “legal and factual questions which are properly a matter for the merits” [Iran v. US Judgment on Preliminary Objections, para. 82], and again unanimously voted to reject the United States’ preliminary objection.  The Court’s decision here is equally important, because when faced with a blend of legal and factual questions involving matters for the merits phase of the proceedings, the Court chose in Iran v. US to accept jurisdiction and proceed to the merits phase.  It would do the exact opposite, and instead choose to decline jurisdiction, in the Qatar v. UAE Judgment on Preliminary Objections when faced with a similar blend of legal and factual questions [e.g. on whether “national origin” as a prohibited ground of discrimination under the Convention on the Elimination of Racial Discrimination (CERD) included current nationality, since, in the conclusion of the Court there, CERD was only meant to protect against discrimination for supposedly “immutable” or “inherent characteristics” such as birth, ethnic origin, or race.  There was no discussion whatsoever in the Qatar v. UAE Judgment on Preliminary Objections if it received evidence from sociologists, historians, anthropologists, medical scientists, among others, that race and ethnic origin is indeed “immutable” and “inherent”.  There was no consideration at all for scientists’ dominant position that “race is a social construct” and a ultimately a very weak and manipulable proxy for genetic diversity.].

Finally, the Court went on to dispose of the second category of objections based on admissibility (abuse of process and preserving the integrity of the judicial function of the Court), noting only that “the fact that Iran only challenged the consistency with the Treaty of Amity of the measures that had been lifted in conjunction with the JCPOA and then reinstated in May 2018, without discussing other measures affecting Iran and its nationals or companies, may reflect a policy decision….the Court’s judgment cannot concern itself with the political motivation which may lead a State at a particular time, or in particular circumstances, to choose judicial settlement.” [Iran v. US Judgment on Preliminary Objections, para. 95].  Turning to the third category of objections, the Court again chose to decline to interpret the United States’ asserted defences under Article XX(b) and (d) of the 1955 Treaty of Amity [e.g. provisions which the United States invoked as allowing for the threshold subject-matter inapplicability of the Treaty at the outset to matters involving measures relating to fissionable materials and their radioactive byproducts and sources, as well as to matters necessary to protect essential security interests], stressing that such treaty interpretation could only be done at the merits stage.  [Iran v. US Judgment on Preliminary Objections, paras. 109-112].  This would again be a sharp contrast to the Court’s opposite interpretive position in Qatar v. UAE, where it decided, well before the merits stage of the proceedings, to instead immediately interpret the phrase “national origin” as a prohibited ground of discrimination under CERD and UAE’s main contention that it does not apply to those possessing current Qatari nationality and not just those who have Qatari origin at birth. This was an issue on the threshold subject-matter inapplicability of CERD to Qatar’s application, which involved both legal and factual questions, that the Court could have reserved for the merits as it did in Iran v. US but did not do so in Qatar v. UAE.

Summary of the 4 February 2021 Judgment in Qatar v. UAE 

In its Application, Qatar had alleged that the United Arab Emirates (UAE) had violated various provisions of the Convention on the Elimination of Racial Discrimination as a result of a host of measures that it imposed or subsequently implemented since the UAE’s Statement of 5 June 2017, and that were directed towards Qatari nationals, residents, and visitors in the UAE, as well as to Qatari-owned media companies.  [Qatar v. UAE Judgment on Preliminary Objections, paras. 26-30.] Qatar had also sought review of economic measures imposed by the UAE at the World Trade Organization that are currently pending, and its national carrier Qatar Airways had also filed a pending investment treaty arbitration claim against the UAE.  The International Court of Justice issued its Order indicating provisional measures on 23 July 2018, where by a very narrow Court majority (composed of then President Yusuf; then Vice-President Xue; Judges Abraham, Bennouna, Cançado Trindade, Sebutinde, Robinson; Judge ad hoc Daudet) vote of 8 to 7, the Court ordered the UAE to:

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

The UAE raised two preliminary objections against Qatar’s application.  First, it alleged that the Court lacks jurisdiction ratione materiae over the dispute, “because the alleged acts do not fall within the scope of CERD.”  Second, UAE argued that Qatar failed to satisfy the procedural preconditions of Article 22 of CERD. [Qatar v. UAE Judgment on Preliminary Objections, para. 38].  The Court upheld the first preliminary objection, and did not consider it necessary to examine the second preliminary objection. [Qatar v. UAE Judgment on Preliminary Objections, para. 114.]

Contrary to its narrow approach to the applicant’s characterization of its claims in Iran v. US, the Court set the tone for its broader analysis of the first preliminary jurisdiction by emphasizing that “the subject-matter of a dispute is not limited by the precise wording that an applicant State uses in its application.” [Qatar v. UAE Judgment on Preliminary Objections, para. 61].  The Court then itself grouped Qatar’s factual allegations into three claims of racial discrimination:

1) the racial discrimination claim arising out of UAE travel bans and expulsion orders that expressly referred to Qatari nationals;

2) the racial discrimination claim arising from restrictions on Qatari media corporations; and

3) UAE’s measures also resulting in “indirect discrimination” on the basis of Qatari national origin. [Qatar v. UAE Judgment on Preliminary Objections, paras. 56 and 70].

To determine if each of these three claims fall within the scope of CERD, the Court engaged in an analysis of blended questions of facts and law.  As to the first claim relating to travel bans and expulsion orders against current Qatari nationals, the Court interpreted the phrase “national origin” in the following Article 1 paragraph 1 of CERD:

“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.” (Emphasis and italics added.)

The Court undertook a textual interpretation of the above provision in light of the object and purpose of CERD, agreeing with the UAE in concluding that “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 also 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.“. [Qatar v. UAE Judgment on Preliminary Objections, para. 81.  Emphasis added.]. The Court is silent on the factual, scientific, or empirical basis or evidence for this conclusion, or whether or not it even invited scientific experts to weigh to test the veracity of this factual conclusion.  The Court certainly made no qualifications to its declaration, especially considering scientific findings showing that race and colour are social constructs and not necessarily a concept based on human genetics.  Even a recent Science article argued that skin pigmentation or skin color was less a characteristic at birth, than the manifestation of each individual’s particular local adaptation to environmental conditions. 

Considering how the unanimous Court punted factual questions to the merits stage in Iran v. US, it is astounding and perplexing that the new Court majority of 11 in Qatar v. UAE (Vice President Xue and Judges Tomka, Abraham, Bennouna, Donoghue, Gaja, Crawford, Gevorgian, Salam, and Judges ad hoc Cot and Daudet) made this hair-splitting distinction that massively whittled down the applicability of CERD only to cases of discrimination based on characteristics inherent at birth, at the jurisdictional stage, and without allowing the reception of factual and scientific evidence on the subject that could have been had if the Court majority chose to reserve this question for the merits stage of the proceedings.  

The rest of the Court’s interpretation of “national origin” excluding the current or actual nationality of persons as a basis for prohibited discrimination under CERD turns on its interpretation of paragraphs 2 and 3 of Article 1 of CERD, two threshold provisions that make CERD inapplicable to specific subject-matter:

“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.” (Emphasis added.)

To recall, in Iran v. US, the unanimous Court reserved for the merits stage of the proceedings the question of the threshold inapplicability of the 1955 Treaty of Amity based on two provisions that specified subject-matter to which that treaty would not apply (e.g. measures involving fissionable material, and measures necessary to protect essential security interests). But in Qatar v. UAE the Court majority instead treated provisions on threshold inapplicability of CERD as part of the context of interpreting “national origin” in the definition of racial discrimination.  Rather than reserve this matter for the merits, the Court went ahead and characterized these provisions as “support[ing] the interpretation of the ordinary meaning of the term ‘national origin’ as not encompassing current nationality…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.” [Qatar v. UAE Judgment on Preliminary Objections, para. 83].  But to recall the terms of Qatar’s own Application, Qatar was pointing not just to travel bans and expulsion orders (which the Court set as the first category of racial discrimination claims), but to a whole host of nullified or impaired recognition, enjoyment, and exercise on equal footing of various human rights:

“(a) Expelling, on a collective basis, all Qataris from, and prohibiting the entry of all Qataris into, the UAE on the basis of their national origin;

(b) Violating other fundamental rights, including the rights to marriage and choice of spouse, freedom of opinion and expression, public health and medical care, education and training, property, work, participation in cultural activities, and equal treatment before tribunals;

(c) Failing to condemn and instead encouraging racial hatred against Qatar and Qataris and failing to take measures that aim to combat prejudices, including by inter alia: criminalizing the expression of sympathy toward Qatar and Qataris; allowing, promoting, and financing an international anti-Qatar public and social media campaign; silencing Qatar media; and calling for physical attacks on Qatari entities; and

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

It was surprising, therefore, for the Court majority in Qatar v. UAE to engage in a contextual analysis of Article 1, paragraphs 2 and 3, without discussing in the Judgment the full corpus of measures that Qatar alleged in its Application as constitutive of racial discrimination against Qatari nationals. It was also surprising to reduce the racial discrimination claims of Qatari nationals into the travel bans and expulsion orders, noting that the Court’s own Provisional Measures Order in 2018 referred to family rights, educational rights, and access to justice rights at stake in the proceedings. Given the interrelated factual and legal questions on this aspect, it is further surprising that the Court did not emulate its own position in Iran v. US and choose to reserve these intricately blended factual and legal questions for the merits stage of the proceedings.

Finally, the Court majority establishes – again without reference to scientific or factual findings – its conclusion that the Preamble of CERD 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.” [Qatar v. UAE Judgment on Preliminary Objections, para. 86].  However, nothing in the plain text of the Preamble of CERD makes any reference to “inherent characteristics at birth”. Instead, the fifth paragraph of CERD’s Preamble explicitly refers to “the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person”.  (Emphasis added.) By narrowing the protections of CERD only to what the Court deems to be “inherent characteristics at birth”, the Court’s Judgment on Preliminary Objections in Qatar v. UAE is silent on how CERD could continue to fulfill its objective of speedily eliminating racial discrimination throughout the world in all its forms and manifestations.  Even more so, by proceeding to characterize (albeit indirectly) UAE’s measures as simply mesures of “differentiation between persons based on their nationality” [Qatar v. UAE Judgment on Preliminary Objections, para. 87], the Court surprisingly (and without further elaboration of its reasoning) immediately resolved questions of fact and law that it would have left to the merits stage, as it did in its Judgment on Preliminary Objections in Iran v. US.

The Court then turns to various supplementary analyses based on Article 32 of the Vienna Convention on the Law of Treaties – referring to supplementary means of interpretation through CERD’s travaux preparatoires and the constant practice of the CERD Committee affirming that differential treatment based on citizenship or immigration status could constitute racial discrimination under certain criteria – but I will leave this matter to other scholars to peruse and scrutinize.  In my view, these supplementary analyses could only be undertaken justifiably according to Article 32 of the Vienna Convention on the Law of Treaties only if they confirm the meaning reached through interpretation under the unitary system of Article 31 of the Vienna Convention, or to determine meaning if it is shown that Article 31 interpretation still results in ambiguity, or a manifestly absurd or unreasonable result.  The Qatar v. UAE Judgment on Preliminary Objections was silent about how these fundamental VCLT Article 32 requirements had been met in this case as to warrant the turn to travaux preparatoires or the history of legislative drafting of CERD at the United Nations.

Conclusion

There are serious implications to the Court’s narrowing of protections under CERD only to racial discrimination that is linked to birth characteristics or inherent characteristics.  It is not my intent to engage in that wider discussion in this post, as I am sure many other human rights lawyers and legal scholars will do so in the days ahead.  What I do seek to illuminate in this extended analysis of both the Iran v. US and the Qatar v. UAE judgments on preliminary objections is that there are real consequences in international life when the Court chooses a particular jurisdictional methodology, without explaining the consistency (or inconsistency) of this methodology with other cases it has resolved or will resolve.  Sir Hersch Lauterpacht famously argued that the completeness of international law ought to be considered a general principle of international law, given the increasingly smaller spaces of non-justiciability and non liquet situations in the international system.  To this he ascribed faith in the paramount duty of the International Court of Justice and other international arbitral tribunals to decide disputes, even if ex aequo et bono. The challenge with reading Qatar v. UAE is that one gets the impression that the Court did already decide sensitive questions of fact and law at the jurisdictional stage, without fully explaining its reasons for doing so.  The challenge with reading Iran v. US is that one gets the impression that the Court relied heavily on the Applicant’s characterization of the dispute and chose to refer questions of law and fact to the merits, without fully explaining its reasons for doing so.  Whichever way this pendulum swings, the Court’s opacity as to its jurisdictional methodology speaks volumes about the many facets of the argumentative practice of international law – and what arguments judges ultimately find persuasive or unpersuasive – at the International Court of Justice.