What are the Riyadh Agreements?

The ruction between Qatar and the Quartet (Saudi Arabia, the United Arab Emirates, Egypt, and Bahrain) recently passed the three-year mark. Yet for a dispute that spawned a remarkable array of international legal proceedings—including an original proceeding before the International Court of Justice, two novel inter-State proceedings before the UN Committee for the Elimination of Racial Discrimination, two proceedings before the International Civil Aviation Organization (ICAO) currently on appeal before the International Court of Justice (ICJ), several proceedings before the World Trade Organization, and others—little consideration has been given to the international agreements underlying the dispute, the Riyadh Agreements. In light of a recent WTO Panel Report issued in one of the proceedings, this brief note aims to change that.

Background

In 2013 and 2014 in the wake of the Arab Spring, Qatar signed a series of agreements under the aegis of the Gulf Cooperation Council (GCC) in order to peacefully resolve differences among itself and several of the States that would later form the Quartet. The existence and content of what became known as the Riyadh Agreements were the subject of speculation for several years before they were publicly disclosed in 2017. Each of the agreements is sparse and at times imprecise, leading to an array of possibilities as to how each should be given effect.

The First Riyadh Agreement was signed on 23 November 2013 by the King of Saudi Arabia, the Emir of Kuwait, and the Emir of Qatar, in which all three pledged “[n]o interference in the internal affairs of the [Gulf Cooperation] Council’s state,” “no support to deviant groups that oppose their states,” “no support for antagonistic media,” and “no support to the Muslim Brotherhood … [or other groups] that threaten the security and stability of the Council states,” among other guarantees. The heads of State for the three other GCC Member States, Bahrain, Oman, and the UAE, endorsed the agreement on the following day.

The Second Riyadh Agreement was stylized as a “Mechanism Implementing the [First] Riyadh Agreement.” This agreement repeated requirements from the first agreement relating to media operations, the Muslim Brotherhood and regional security; included a mandate that the foreign ministers of each GCC Member State confer annually to ensure continuing compliance and that each State take “appropriate action” in response; and further mandated that the parties should hold “immediate meetings” concerning the GCC States’ internal security should they be warranted. Finally, “[i]f any country of the GCC Countries fail[s] to comply with this mechanism, the other GCC Countries shall have the right to take any appropriate action to protect their security and stability.” All six GCC foreign ministers signed the document on 17 April 2014 and it was immediately brought into force.

Finally, the six GCC heads of State signed the Third Riyadh Agreement (also known as the Supplementary Riyadh Agreement) on 16 November 2014. The third agreement reiterated the substantive provisions of the first two agreements and added two further important principles. First, it “stress[ed] that non-committing to any of the articles by the Riyadh Agreement and its executive mechanism amounts to a violation of the entirety of them.” Second:

[a]ll countries are committed to the Gulf Cooperation Council discourse to support the Arab Republic of Egypt, and contributing to its security, stability and its financial support; and ceasing all media activity directed against the Arab Republic of Egypt in all media platforms, whether directly or indirectly, including all the offenses broadcasted on Al-jazeera [sic], Al-Jazeera Mubashir Masr [i.e., Al Jazeera’s Egyptian broadcast], and to work to stop all offenses in Egyptian media.

This was the first explicit mention in any of the Riyadh Agreements to either Egypt or Qatari media organisation Al Jazeera (as opposed to general references to the media).

The collected Riyadh Agreements—models of brevity—present at least three interesting legal questions. Does the fact that the Riyadh Agreements were secret pacts for several years before their existence was publicly disclosed affect their validity? Second, to what extent can Egypt rely on or enforce the agreements? Finally, what is the scope of rights and duties under the agreements, and what responses might parties take in event of a breach?

Secret Agreements?

Both the Vienna Convention on the Law of Treaties (VCLT), Article 80 and the UN Charter, Article 102 impose an obligation of treaty registration and publication; failure to do so may preclude a party from invoking the treaty before any organ of the United Nations, including the ICJ. Despite this seemingly clear rule, the Riyadh Agreements remained secret for several years, known only within the GCC but speculated without. Only on 9 October 2018 did Saudi Arabia register all three with the UN Secretariat—after the Quartet had filed two Applications to the ICJ appealing from the ICAO proceedings, but before submitting the Memorials. (See here and here.)

Yet this failure to register the treaties under the UN Charter might be a dead letter. Scholars have observed that compliance has always been “patchy,” and failure to register an international agreement did not stop the ICJ from enforcing one in—ironically—the maritime delimitation and insular sovereignty case of Qatar v. Bahrain. Neither Qatar nor the Quartet broached the issue in their pleadings before the ICJ; Saudi Arabia might have registered the treaties out of an abundance of caution rather than a sense of necessity. Secret treaties such as the Riyadh Agreements, then, not only fail to offend international law in practice, but might even be appropriate for reasons premised on internal and external security.

Third-Party Beneficiary?

The first two Riyadh Agreements are replete with references to the stability and security of the GCC Member States, the signatories. It was only in the third agreement that Egypt, a non-GCC Member, was mentioned for first time, though the Quartet has asserted that references to the Muslim Brotherhood in the earlier agreements referred to the situation in Egypt. Egypt, however, was not a signatory to any of the three agreements, nor is Egypt a GCC Member State.

The VCLT, Article 36(1) provides that a treaty right might arise for a third State if the treaty parties so intend and the third State assents; such assent is usually presumed so long as there is no indication to the contrary. Yet international law draws a distinction between a right created in favour of a third party and a mere benefit created in favour of the same. Anthony Aust, for example, found that “an intension to create only a benefit (such as an agreement between the parties to restrict noxious emissions which will, as a matter of fact, also benefit a third state) does not confer any right on the third state.” (Emphasis in original.) Similarly, in Free Zones of Upper Savoy and the District of Gex, the Permanent Court of International Justice wrote:

It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the object of creating an actual right in its favour. … The question of the existence of a right acquired under an instrument drawn between other States is therefore one to be decided in each particular case: it must be ascertained whether the States which have stipulated in favour of a third State meant to create for that State an actual right which the latter has accepted as such.

The Quartet affirmatively raised this issue in its ICJ pleadings when it stated: “[the measures] were also aimed at inducing [Qatar’s] compliance with the obligations owed to Egypt under the Riyadh Agreements as a third-party beneficiary (see Memorial, Vol. I at p. 59, n.154). Qatar does not appear to have contested the proposition—but was it right to do so? The one express reference to Egypt in the Riyadh Agreements could be evidence of the intention to confer substantive treaty rights upon Egypt. The text of the Third Riyadh Agreement states that the treaty parties are “committed to the Gulf Cooperation Council discourse to support the Arab Republic of Egypt, and contributing to its security, stability and its financial support…” Further, the parties pledged to “ceas[e] all media activity” against Egypt and “to work to stop all offenses in Egyptian media.” On the other hand, the Second Riyadh Agreement, the Mechanism, provides that “[i]f any country of the GCC Countries failed to comply with this mechanism, the other GCC Countries shall have the right to take any appropriate action to protect their security and stability.” (Emphasis added.)  Other examples abound of the rights being exercised by, to, and among the GCC Member States. Additional references to Yemen and Syria in the first two agreements, similar to the provision concerning Egypt in the third, are expressly linked to the security and stability of the treaty parties, the GCC Member States.

Qatar might have argued that Egypt was only an intended beneficiary of the treaty—indeed, that is the precise language the Quartet used (“obligations owed to Egypt under the Riyadh Agreements as a third-party beneficiary”: see id.)—but without any concomitant exercisable rights or obligations. Thus, while the other three members of the Quartet could seek the enforce the agreements, Egypt, as a non-party, could not rely upon them in the context of measures or countermeasures. Still, it is unlikely that the ICJ will examine the issue in any great detail because Qatar did not contest it; Egypt additionally claimed to be acting under counterterrorism treaties and UN Security Council resolutions, not the Riyadh Agreements alone; and because it would have little practical effect on the claims raised by the other three members of the Quartet.

Measures and Countermeasures

Qatar and the Quartet are involved in a significant war of words over how to characterise the Quartet’s actions: according to Qatar they are unlawful “Measures”; according to the Quartet they are permissible “Countermeasures.” Although the Riyadh Agreements speak broadly about obligations to be undertaken, they say very little about what remedies are available in the event of a breach. The first and third agreements say nothing at all (save for breach of one amounts to breach of all three); the second, in addition to establishing to Mechanism to ensure compliance, states that “[i]f any country of the GCC Countries fail[s] to comply with this mechanism, the other GCC Countries shall have the right to take any appropriate action to protect their security and stability.” By the text of the Riyadh Agreements, then, any response to a putative breach must be “appropriate” and oriented toward the country’s “security and stability.”

These textual dimensions will have to be assessed in conjunction with other applicable treaty regimes—the ICERD in the ICJ and UN CERD proceedings, the Chicago Convention and IATA in the ICAO proceedings, investment treaties in ISDS proceedings, and so on. The Articles of State Responsibility—such as the requirements that countermeasures should be aimed to induce compliance with international obligations, Art. 49(1), and proportionate to the “gravity” of the offenses they are meant to address, Art. 51—will undoubtedly play an important role as well.

The legality and scope of Qatar and the Quartet’s actions are fiercely disputed, and forthcoming international legal decisions will likely opine on them at length. The aforementioned WTO Panel Report in Saudi Arabia — Measures Concerning the Protection of Intellectual Property Rights provides a useful template for future analyses to follow. In brief, Qatar alleged that Saudi Arabia failed to take certain civil and criminal enforcement actions following the “brazen bootlegging” of material from a Qatari broadcaster. Saudi Arabia invoked the TRIPS Agreement, Article 73 “essential security interests” exception to request that the Panel decline to make any findings  or alternatively to justify its alleged breaches of the TRIPS Agreement. In particular, Saudi Arabia asserted that the comprehensive nature of its boycott required it to shield Saudi nationals from any interaction with Qatari nationals, and the measures challenged by Qatar, such as alleged “anti-sympathy measures,” would inhibit that.

The Panel took great care to distinguish between the measures being challenged in the individual proceeding and the full panoply of measures and countermeasures arising out of the macro dispute between Qatar and the Quartet (see paras. 7.24-7.36). The Panel ultimately found that Saudi Arabia’s invocation of the essential security interests exception was justified in the case of civil enforcement (which could bring a Qatari claimant in contact with a Saudi law firm, for example), but not in the case of criminal enforcement (which would not entail that same cross-border interaction) (see paras. 7.283-7.293). Irrespective of its conclusions under the TRIPS Agreement, the Panel took appropriate note of the Riyadh Agreements and boycott as important context while focusing its legal analysis on the discrete measures giving rise to the trade-specific dispute.

Conclusion

The Riyadh Agreements are worthy of careful study in their own right and will lie squarely at the centre of several forthcoming international legal opinions. The fragmentation of claims across several different proceedings means that certain measures inherently will seem overbroad when measured against the limited jurisdiction of whatever body is meant to adjudicate them. Taking the example of the civil aviation claims, the ICJ is confronted with and will have to address the full array of measures simply to determine the jurisdiction of the ICAO. Indeed, one of the Quartet’s primary arguments in the ICAO first-instance proceeding is that it would be inappropriate for ICAO to opine on the Riyadh Agreements and availability of countermeasures thereunder, which go far beyond matters concerning civil aviation. If all claims and defences were presented to an omnibus adjudicator in a single proceeding, that adjudicator would have a much better perspective of the entirety of the macro dispute and the proportionality of the acts. Nevertheless, the Riyadh Agreements and their disposition will be the subject of much scrutiny for years to come.