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

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.