Sanctioning Qatar Continued: The United Arab Emirates is brought before the ICJ

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On 11 June, Qatar initiated proceedings (“Application”) against the United Arab Emirates (“the UAE”) at the International Court of Justice under the Convention on the Elimination of all Forms of Racial Discrimination (CERD) and requested provisional measures. This step is yet another episode in the diplomatic standoff that took the world by surprise last year when Saudi Arabia, the UAE, Bahrain and Egypt (“the Quartet” or “Gulf States”) adopted a series of stringent measures against the oil-rich kingdom. When the crisis first erupted the Qatari foreign minister alluded to a violation of the principle of non-intervention when he claimed that the genuine motive behind the sanctions was “about limiting Qatar’s sovereignty, and outsourcing [its] foreign policy”. Rather than resort to retaliatory sanctions Qatar has turned to diplomacy, lobbying and various dispute settlement mechanisms. It has seized the United Nations, notably the Office of the High Commissioner for Human Rights (“OHCHR”), and the International Civil Aviation Organization (see also here and here) in search for support in condemning the coercive measures as unlawful. Qatar added pressure to the sanctioning States when it filed a request for consultation before the WTO’s dispute settlement body in August 2017 but ultimately decided to only pursue the complaint against the UAE. As noted by Johannes Fahner (see here) the proceedings before the WTO could lead to a GATT Article XXI case, which States have tended to avoid. By engaging the ICJ Qatar is taking its dispute against the UAE to the next level. Unlike the UAE, Saudi Arabia, Bahrain and Egypt adopted reservations to the ICJ’s jurisdiction under Article 22 of the Convention upon ratification.

In its Application, Qatar claims the expulsion of Qatari nationals from the UAE’s territory violates General Recommendation 30, adopted by the CERD Committee in August 2004 (para. 59), and have led to human rights violations:

“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”

solely on the basis of their nationality contrary to CERD Article 5 (para. 63). The Application further lists the travel embargo – which closes off air, sea and land to and from Qatar – among the discriminatory measures as well as the shutting down of local Al-Jazeera offices and the blocking off of transmissions from Al-Jazeera and other Qatari-based media outlets. In addition, Qatar alleges the UAE has encouraged rather than condemned discrimination by:

“allowing, promoting, and financing an international anti-Qatar public and social media campaign; silencing Qatari media; and calling for physical attacks on Qatari entities”

in violation of CERD Articles 2 and 7 (paras 57 and 61 to 63). The UAE is also said to be responsible for breaching CERD Article 4 and inciting hate speech (para. 60). According to Qatar it has “fail[ed] to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions” in violation of Article 6 CERD (para. 64).

In support of its claims Qatar quotes a report published by the OHCHR in December 2017 (which the Quartet have rejected) and to findings by other human rights NGOs, including the Human Rights Watch, Amnesty International and the Qatari based National Human Rights Committee. These bodies express concern over the human rights violations caused by the expulsion order without placing them solely under the CERD; amongst others, the measures would breach the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The OHCHR and NGOs focus more on the harm caused to individuals by the expulsion orders than on the travel embargo or the measures taken against Al-Jazeera. Therefore Qatar’s claims against the UAE’s expulsion of Qatari nationals and its encouragement of discriminatory practices appear more convincing. It is harder to see to what extent the travel embargo and the measures against Al-Jazeera fall within the CERD’s reach.

While Qatar is making its claim before the ICJ under the CERD, the UAE’s alleged interference in its domaine réservé comes across in its Application, as illustrated below:

Para. 2: “This Application concerns a legal dispute between Qatar and the UAE regarding the UAE’s deliberate and flagrant violations of the CERD. The UAE, unlawfully seeking to pressure Qatar to allow it to interfere in Qatari sovereignty over its affairs, has targeted Qataris and their families for discriminatory treatment. In the process, the UAE has caused severe and irreparable harm to Qatar and Qataris.”

Para. 27: “While the UAE had claimed, without substantiation, that the Discriminatory Measures were motivated by its national security concerns, the substance of the Thirteen Demands made clear that they were actually an attempt to curtail media freedom and undermine Qatar’s sovereignty by attempting to dictate Qatar’s international relations, as well as interfere with Qatar’s internal affairs.”

Para. 54: “[the UAE] has unlawfully targeted Qataris on the basis of their national origin. It has done so in an attempt to pressure Qatar into capitulating to the UAE’s insistence that it be allowed to meddle in Qatar’s internal affairs and to force Qatar to compromise its own human rights obligations, for example, by forcing the closure of Al Jazeera.”

The UAE is described as placing the Qatari nationals literally under siege through various discriminatory measures. The issue of interference comes across more subtly in Qatar’s complaint before the WTO, which refers to “coercive attempts at economic isolation”. It follows that the real dispute between Qatar and the UAE (not to mention the three other sanctioning States) remains the latter’s attempt to intervene in the former’s internal affairs through unilateral coercive measures that in Qatar’s opinion violate the GATT, the Chicago Convention and now the CERD.

Commenting on the Gulf Crisis last year, Luca Ferro and I discussed to what extent the sanctions against Qatar fall within the scope of the principle of non-intervention. Whereas coercive intervention is obvious when it involves an unlawful use of force it is unclear when acts of coercion not involving the use of force breach prohibition of intervention. Drawing from the travaux préparatoires of the UNGA Friendly Relations Declaration we suggested that unlawful interference entails either pressure through a violation of international law (e.g., an unlawful use of force or a violation of a bilateral agreement) or an abus de droit, which we explained as the exercise of sovereign rights by the intervening State for the sole purpose of harming or damaging another State. Last year we focused on the second scenario, nonetheless the first scenario is equally applicable to the Gulf Crisis. Qatar’s strategy in dealing with the sanctions points to interference through violations of international law. In fact it is not unusual for States to refer to other sources of law when objecting to coercive interference not involving the use of force, and Qatar is the perfect illustration of this. As there is no framework regulating non-forcible acts of intervention States willing to combat these practices have no choice but to make their case through other sources of law and to circle around the issue of intervention. There are some indications in State practice pointing to a desire to prohibit unilateral coercive measures but States remain divided, especially along the “developed/developing” line (as I discuss here). Even if Qatar wanted to be a trendsetter and initiate ICJ proceedings against any of the Gulf States for violating the principle of non-intervention it is prevented from doing so as none of the States involved have recognized the Court’s compulsory jurisdiction.

Thus in the Proceedings instituted by Qatar against the United Arab Emirates Qatar is not using the CERD as a pretext but simply playing by the rules. It is certainly not the first State to make claims under the CERD while other issues are at stake. Palestine seems to have opted for a similar strategy by filing an inter-state complaint against Israel before the CERD (discussed in this post); the broader dispute is of course of Israel’s occupation of Palestine. Ukraine and Georgia both instigated ICJ proceedings against Russia on the basis of the CERD while the latter was violating their respective territorial and sovereign integrity through forcible coercive measures. In both cases Russia has used the claimant’s strategy of circling around the real issue through conventions to its advantage.

In the Georgia v Russian Federation proceedings, Russia objected that the dispute with Georgia was not racial discrimination under the CERD but the armed conflict between the two parties in Abkhazia and South Ossetia. It demonstrated this by drawing attention to Georgia’s failure to meet the procedural conditions under CERD Article 22, pointing out that Georgia failed to negotiate CERD-related issues during the critical period and that Georgia never made use of the dispute mechanisms provided under Articles 11-13 CERD. The judges upheld Russia’s objection without addressing the so-called artificiality of the proceedings.

Similar issues arise in Ukraine’s case against Russia, which is based on the International Convention for the Suppression of the Financing of Terrorism in addition to the CERD. As in Georgia v Russia, during the oral hearings on the request for provisional measures Russia objected to the Court’s jurisdiction and held that the nature of the dispute with Ukraine revolves around the prohibition of the use of force. It thus argued that the applicable law was international humanitarian law and not the ICSFT. Russia also took issue with Ukraine’s claims under the CERD, stating that the issue revolved more genuinely around the status of Crimea and thus outside the CERD. Evidently the Court has only issued an Order on the Request for Provisional Measures (commented on by Iryna Marchuk here), where it intriguingly “considered[ed] that at least some of the allegations made by Ukraine appear to be capable of falling within the scope of the ICSFT ratione materiae” (para. 30) but did not make any make further pronouncements on the existence of a dispute under the ICSFT (para. 31) nor did it grant any of the provisional measures under that convention (para. 76). The Court found that there existed a prima facie dispute under the CERD (para. 38) and granted two of Ukraine’s requests for provisional measures under the CERD. This hints that Ukraine will be more successful in making its case under the CERD. Ukraine seems it have learnt from Georgia’s experience concerning the procedural conditions under CERD Article 22 (see here).

Returning to Qatar v the United Arab Emirates, the success of Qatar’s Application therefore depends on whether it can demonstrate there is a genuine dispute between itself and the UAE that falls within the Convention’s scope (argued in Application, paras 12-15). Qatar must further prove the procedural requirements under CERD Article 22 are met, namely that it has attempted to solve the CERD-related dispute by “negotiation or by the procedures expressly provided for in [the] Convention”. Qatar’s interpretation of Article 22 is that only one of the procedural conditions needs to be satisfied in order for the ICJ to exercise its jurisdiction; addressing head-on whether these conditions are alternative or cumulative (raised in Order on the Request for Provisional Measures in Ukraine v Russia, para. 60). It stresses the UAE’s resistance to negotiation despite “good-faith efforts by Qatar and other members of the international community” (Application, para. 8). In its view:

“the UAE has no intention of ending the Discriminatory Measures, or of even negotiating with Qatar, without full capitulation from Qatar to the UAE’s illegal political demands” (para. 17).

As Qatar’s case unfolds the ICJ will most likely pursue the same strategy in the Georgia and Ukraine proceedings against Russia by applying the applicable rules while staying away from the politics behind the discriminatory measures. One issue that should be developed further is whether recourse to these conventions is an effective means to solve broader inter-state disputes. As a preliminary observation these cases distract from the genuine issue. They give the respondent the opportunity to use the proceedings as a fig leaf; enabling it to challenge the legitimacy of the claimants’ intentions and draw attention away from its own responsibility. But here again, the respondent is merely playing by the rules.

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Mike Becker says

June 22, 2018

Thanks for this post. As you point out, Qatar has invoked a variety of legal mechanisms, prior to initiating the ICJ case, in response to the measures that UAE and others have taken. Crucially, Qatar also submitted an inter-State communication to the CERD Committee in May 2018. This may be a serious obstacle to establishing the Court’s jurisdiction. As you also point out, Article 22 provides for ICJ jurisdiction only when the dispute "is not settled by negotiation or by the procedures expressly provided for in this Convention". In the Application, Qatar asserts that its efforts to negotiate a settlement with UAE have failed. The Court will need to decide whether there has been a genuine attempt to negotiate (which includes a determination that the negotiations touched on a dispute falling within the subject matter of the CERD) and whether those negotiations have been taken “as far as possible”. The more interesting question, however, may be the legal significance of Qatar’s decision last month to submit an inter-State communication against UAE pursuant to the procedures laid out in CERD Articles 11-13.
Qatar argues (and is probably correct) that the preconditions in Article 22 are alternative, not cumulative. A state likely does not need to show that bilateral negotiations AND the procedures laid out in CERD arts 11-13 have failed before it can unilaterally seize the Court. Qatar cites the 2011 joint dissent by five judges in the Georgia v Russia case, which argued persuasively (see paras 39-47) that the Article 22 preconditions are not cumulative (an issue not reached in the Court's judgment). But the fact that going through the detailed procedures provided for in CERD Articles 11-13 is not compulsory is a different issue from what effect that procedure has, once it has been initiated by a State, on the requirements to establish ICJ jurisdiction under Article 22. It is entirely possible that the ICJ will find that because Qatar voluntarily began an inter-State communication procedure against the UAE under CERD Article 11, the preconditions of Article 22 remain unmet until that proceeding has run its course. In essence, Qatar’s decision to invoke the Article 11 procedure against UAE could be viewed by the Court to mean that, in substance, efforts to achieve a settlement by non-judicial means have not yet gone “as far as possible”, which is really what the preconditions in Article 22 are all about.
If the Court does find that it has prima facie jurisdiction to entertain the provisional measures request, it is notable that Qatar seeks relief that largely mirrors what it seeks on the merits (minus a compensation claim). This seems unlikely to succeed. If there is a basis to indicate provisional measures, one might expect to see something far more limited (although it is not so easy to imagine what this might be). If the case ever does reach the merits, it will be interesting to see how the ICJ interprets CERD Article 1(2), which specifies that the treaty does not cover distinctions made between citizens and non-citizens. UAE would seem likely to focus on this provision to defend the expulsion of Qataris from its territory (along with its alleged counter-terrorism rationale), while Qatar would presumably emphasize that Article 1(2) has been interpreted by the CERD Committee to mean that differential treatment of non-citizens cannot go so far as to violate fundamental human rights and requires a “legitimate aim”. Applying the “legitimate aim” standard, however, certainly seems like it would make it difficult for the Court to avoid engaging with “the politics behind the discriminatory measures”.

Dr Ayman Salama says

June 22, 2018

Dear Mike thans so much being the initiative owner .To a karge extent I agree on all your insightful intervention and I have a few comments .
1- The core Qatari allegation is mainly based upon CERD and as a redult we can not ignore the prerequisite requirements of all crimes against humanity .This poses a heavy burden and responsibility on Qatar to prove that its allegations meet the respected requirements .
2- Concerning the alleged UAE air embargo imposed and practiced by UAE it is worthmentioning that ICAO last year did not positively replied the Qatari claim against UAE , Egypt and Bahrain while the organization only asked the 3 states to afford contingecy aerial passages to Qatari flights .
The adopted measures by the Quartet in yhis regard are sovereign , corrective and legitimate countermeasures under international law .
Qatar itself in the nineties kicked off thousandes of Eyptian workers from Qatar in an aftermath of a diplomatic tention .
The Qatari was beyond any doubt a grave violation of international law because it was a mere act of revenge .

The inexhaustible term of article 22 which necessiate negotiations can not be unilaterally construed on the Qatari political will .
Qatari provided political advantages from the Quartet before setting on the table .

3- According to the Quartet allegations the state of Qatar did not comply with 2 international treaties in Riadh the capital of Saudi Arabia .Those 2 international treaties signed by Kinges and Princes of 6 Arab Gulf Stated .Under the 2 treaties Qatar commutted herself with international obligations but she regretted .

4- Relying on dissenting openions of ICJ judges is not a fruitful claim either an evidence because all ICJ judgements are only binding on dispute parties unless they are based on and derived from Customary International Law .

Henry Jacobs says

June 29, 2018

To put this into laymans terms.

Qatar lost. They can go through all the legal mechanism they wish to pursue against the UAE but if their entire argument is not based on actual fact and nothing they claim can be backed up with solid evidence then its all a waste of time.

They claimed the UAE kicked out all Qatar students, froze all businesses belonging to Qatar citizens living in the UAE and a number of other things. IE: A ban on any activity on UAE soil by a Qatar citizen.

All of which were proved false in court by documents.
2770 out of 2800 are still living in the UAE since the UAE cut diplomatic relations with Qatar. 30 were sent back to Qatar due to security reasons which were justified. They know better than the court how the streak of terrorist bombings on Saudi territory suddenly stopped after Saudi Arabia cut ties to Qatar and started screening any Qatar national who enters their country.

Next the UAE provided evidence of millions of dollars in active transactions by Qatar nationals living in the UAE sending money home.

They further provided evidence of the 2870 Qatari's being provided government healthcare in the UAE equal in standard to that provided to UAE nationals, allowing them healthcare for free in all public and private hospitals.

Student records were added to the files proving once again the lies fabricated by Qatar.

The only time the UAE actually suspended Qatari nationals activity within the UAE was right after cutting ties to the Qatar government and the purpose was to security clear all of them before they can continue their business/education and the period of suspension was very brief.

And the international court cannot enforce anything if the national security of the UAE is at stake.

This move by Qatar was done out of desperation and it backfired since it opened the way for several nations to file countersuits against Qatar for supporting terrorist cells after aligning itself with Iran