Sanctioning Qatar: the Finale?

As already commented upon on various occasions on EJIL Talk!, on 5 June 2017 Saudi Arabia, the United Arab Emirates (UAE), Bahrain and Egypt (the ‘quartet’) severed economic and diplomatic ties with Qatar, which included airspace restrictions, maritime restrictions, and travel bans on Qatari nationals. Four years later, the measures have been lifted. This was made possible through Kuwaiti mediation efforts between Saudi Arabia and Qatar. The two eventually agreed to the Solidarity and Stability Deal in January 2021, which lead to the end of the stand-off between Qatar and the quartet. In the meantime, Qatar had also engaged with various dispute settlement mechanisms. This post reviews the role that adjudication played in the dispute.

 The road to reconciliation

When the measures were adopted in 2017, the sanctioners claimed they were justified because Qatar had violated the 2014 Riyadh Agreements, under which it had “committed to cease supporting, financing or harboring persons or groups presenting a danger to national security, in particular terrorist groups”. Qatar would, inter alia, have been responsible for interfering in these states’ internal affairs and supporting terrorist groups, thereby contributing to the region’s destabilization. Shortly after adopting the measures, the quartet issued a list of 13 demands to Qatar. From the outset, Qatar denied any wrongdoing and accused the sanctioning states of coercive interference in its domaine réservé, in other words of breaching the principle of non-intervention. According to Qatari Minister of Foreign Affairs, the genuine motive behind the sanctions was to limit Qatar’s sovereignty and outsource its foreign policy (see also here). Thus for both parties, what was at stake in this dispute was interference in domestic politics, as well as regional and international influence. It also became a matter of international prestige.

In an effort to counter the pressure that was placed upon it, Qatar engaged in various dispute settlement mechanisms and invoked the quartet’s responsibility before International Civil Aviation Organization, the World Trade Organization (WTO), the Committee on the Convention on the Elimination of All Forms of Racial Discrimination (CERD). There were also cases of international arbitration. While some of these judicial procedures were still ongoing, in December 2020 it was reported that Saudi Arabia and Qatar had reached a breakthrough thanks to Kuwaiti mediation efforts. One month later, they signed the Solidarity and Stability Deal. Though it was uncertain how the other three states would react (see, for instance, here and here), they eventually followed Saudi Arabia in lifting the measures against Qatar. It is noteworthy that all this occurred in spite of the fact that Qatar had complied with none of the 13 demands, at least according to official reports. In a manner that invokes David versus Goliath, the tiny peninsula appears to have emerged as the victor.

One could wonder how this was possible. Commentators have noted how a combination of domestic and international interests, especially relations with the USA, helped tipped the scales in favour of reconciliation (see, for instance, here, here and here). If rivalry triggered the diplomatic rift that we observed four years ago, it also led to its resolution as the countries that implemented the sanctions realized it is in their interests to lift them. Interestingly, Qatar was able to use adjudication as a bargaining chip. Qatar reportedly conceded to cease international adjudication in exchange for the lifting of the sanctions. This is usually a tactic that is employed with sanctions; as was the case here, sanctioners frequently state they will lift the measures once the target complies with their demands.

Although the parties were able to reach an agreement that does not mean it is the end of the story. The countries agreed to resume normal relations, yet it is unclear to what extent the core of the dispute was resolved and tensions may still be simmering underneath the surface. For the purposes of this post, I want to draw attention to the fact that there are two fundamental issues that were not addressed by international bodies because of their limited jurisdiction, which is evidently circumscribed to consent. The first, which concerns the quartet’s claim against Qatar and one that Qatar vehemently denies, is whether Qatar is responsible for supporting terrorism and causing regional instability. The second is whether the sanctions constitute a breach of the principle of non-intervention, which is Qatar’s claim against the sanctioners.

Qatar’s alleged supported of terrorism and contribution to regional instability

This first issue could potentially have been discussed in the context of the ICAO proceedings, including in the appeal before the ICJ, and was also at stake in complaints before the WTO dispute settlement mechanism. However, none of these bodies touched upon the subject.

After the ICAO Council agreed it had jurisdiction over Qatar’s claim and that it was admissible, Bahrain, Egypt, Saudi Arabia and the UAE instituted an Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation before the ICJ. In their written memorial (pp. 53-60, specifically paras 2.66-2.67), they justified the air restrictions as a countermeasure aimed at inducing Qatar’s compliance with the Riyadh Agreements and the Supplementary Riyadh Agreement. In invoking countermeasures, the sanctioners acknowledged that their measures breached the Chicago Convention. Nonetheless, as they were responding to Qatar’s prior wrongful behaviour the wrongfulness of their own behaviour would be precluded (ARSIWA Article 22). In order for the countermeasure argument to be upheld, the quartet would need to demonstrate before the ICAO Council that Qatar had effectively violated the Riyadh Agreements. In other words, the veracity of the claims against Qatar would need to be verified. The ICJ did not address that part of the issue (see Judgment 14 July 2020, para. 49), which is natural as the Court was only required to focus on procedural matters, and the case was not pursued any further before ICAO Council.

There was the potential to review Qatar’s behaviour before the WTO. For instance, Qatar had initiated WTO proceedings over Saudi Arabia’s reported failure to provide adequate protection of intellectual property rights held by or applied for by entities based in Qatar in violation of the TRIPS Agreement (other complaints are here, here and here). In response to these allegations, Saudi Arabia invoked, amongst others, the security exception found in the TRIPS Agreement, Article 73(b), the wording of which is identical to GATT Article XXI(b). The Panel Report of 16 June 2020 noted the existence of an “emergency in international relations” since the severance of economic and diplomatic relations since June 2017. However, it did not verify the veracity of the Saudi allegations against Qatar; it was sufficient that tense relations between the two states existed (para. 2.673). The Panel found there was a sufficient link between the measures adopted with regard to the measures that breached TRIPS Agreement Articles 42 and 41(1), but that no link existed to justify the breach of Article 61.

Consequently, the dispute settlement mechanisms did not assess whether Qatar would be responsible for wrongfully interfering in the sanctioners’ internal affairs and causing domestic and regional instability. In the first cases discussed, this is because the matter was restricted to procedural issues. In the second case, the Panel’s interpretation of Article 73(b) TRIPS Agreement limited its review to whether an international emergency existed and not what would have caused it.

Whether the sanctions breached the principle of non-intervention

The second question is not something that could be addressed before any of the bodies because none of them have jurisdiction over the principle of non-intervention. If the parties involved had recognized the ICJ’s compulsory jurisdiction under Article 36(2) of the ICJ Statute, then Qatar may have been able to rely on the principle as a matter of customary international law. This was done by Nicaragua in Military and Paramilitary Activities in and against Nicaragua. Nicaragua claimed in the US embargo violated the principle of non-intervention, as codified in UNGA Resolution 2625. However, as is well known, the ICJ did not side with Nicaragua on the matter (Judgment of 27 June 1986, para. 205 and para. 245).

In its request for consultations before the WTO, Qatar described the measures adopted by the UAE as “coercive attempts at economic isolation imposed by the UAE against the State of Qatar” (see also here and here). A similar picture was painted before the ICJ. As noted previously, in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), throughout Qatar’s application instituting proceedings the dispute is framed as an intervention in Qatar’s international affairs. For instance, paragraph 2 reads:

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.

The issue was restricted to the material scope of the CERD and made for an uneasy fit. Although Qatar had reportedly agreed to suspend proceedings, the Court ruled that the dispute did not fall within the subject matter of the CERD. According to the bench, discrimination based on nationality did not constitute discrimination based on national origin as required under Article 1(1) CERD (Judgment of 4 February 2021, paras 81-105).

One could fault Qatar for forum shopping or for abuse of process, however this is how the game of international adjudication is played and, as I discussed here, Qatar is not alone in pursuing this strategy. As no judicial body is competent to receive a claim based on the principle of non-intervention, Qatar had no choice but to rely on other legal bases. Though this did not always lead to successful outcomes before the relevant body, inasmuch as it was able to use the proceedings as a means to pressure the quartet into lifting their coercive measures this strategy paid off.

Conclusion

One commentator has noted: “The [WTO] Panel Report did an admirable job of disaggregating the discrete measures under examination in that proceeding from the Gulf dispute as a whole, in much the same manner that the ICJ and ICAO did”. It is ironic that in order to settle the dispute before it, each respective body needed to steer clear of the “dispute as a whole”. One could wonder what this suggests about the effectiveness of adjudication bodies in solving international disputes. That said, to the extent that national narratives are at stake – to quote Andreas Krieg, this “is a conflict over world views on the sense of self and a person’s role in the radically changing geopolitical theatre of the post-Arab Spring region” – the most appropriate forums may not be courtrooms but rather mediation and reconciliation procedures that are able to address the underlying political issues. As the States involved are still overcoming their differences, in spite of the signing of the Qatari-Saudi Solidarity and Stability Deal and the lifting of the coercive measures, it is most likely not the end of the story.

Editor’s Note: This post has been edited after publication to correct a typographical error.