Who is the Final Interpreter in Human Rights: the ICJ v CERD?

In 2018 Qatar instituted proceedings against the United Arab Emirates (UAE) before the International Court of Justice (ICJ or the Court), alleging violations of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD or the Convention). In parallel inter-State proceedings the CERD Committee found in 2019 that it had jurisdiction to deal with the case. However, the ICJ upheld for its part in its judgment of 4 February 2021 the objection by the UAE against the Court’s jurisdiction. The disagreement between the ICJ and the CERD Committee centred on the proper interpretation of the term ‘national origin’ in art. 1(1) CERD. The ICJ’s judgment raises both methodological issues and challenges of substantive interpretation, see Desierto. But my focus is on whether the ICJ should approach the practice by UN human rights treaty bodies from a position of dialogue or superiority.

Synthesis of the Dispute

The dispute concerned measures the UAE had taken against Qatari nationals, including prohibiting access to UAE territory and requiring such residents to leave the country. This sounds like discrimination based on nationality. However, the possible basis for jurisdiction of the CERD Committee as well as the ICJ are, respectively, art. 11 CERD on inter-state communications and art. 22, which provides that any party may refer disputes to the ICJ on the basis of racial discrimination. The relationship between discrimination based on nationality and racism caused controversy both within the ICJ and between the Court and the CERD Committee.

The jurisdiction of the ICJ was first addressed in its 2018 Order indicating provisional measures. The Court concluded by a narrow 8-7 majority that the UAE must ensure that families that include a Qatari are reunited; that Qatari students are given the opportunity to complete their education; and that the affected Qataris are allowed access to UAE courts and tribunals. On the substantive scope of CERD, the majority held:

In the Court’s view, the acts referred to by Qatar, in particular the statement of 5 June 2017 – which allegedly targeted Qataris on the basis of their national origin – whereby the UAE announced that Qataris were to leave its territory within 14 days and that they would be prevented from entry, and the alleged restrictions that ensued, including upon their right to marriage and choice of spouse, to education as well as to medical care and to equal treatment before tribunals, are capable of falling within the scope of CERD ratione materiae. The Court considers that, while the Parties differ on the question whether the expression “national . . . origin” mentioned in Article 1, paragraph 1, of CERD, encompasses discrimination based on the “present nationality” of the individual, the Court need not decide at this stage of the proceedings, in view of what is stated above, which of these diverging interpretations of the Convention is the correct one (para. 27).

However, Judges Tomka, Gaja and Gevorgian appended a Joint declaration emphasizing the difference between discrimination based on nationality and, as covered by the CERD, on national origin. This was also the view by Judges Crawford and Salam in their respective dissenting opinions.

In its 2021 judgment on jurisdiction, the Court was also split on the interpretation of ‘national origin’, although with a wider 11- 6 margin than in the Order on provisional measures. The majority held:

The Court observes that the definition of racial discrimination in the Convention includes “national or ethnic origin”. 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 (para. 81)

In light of the above, the Court finds that the term “national origin” in Article 1, paragraph 1, of the Convention does not encompass current nationality. Consequently, the measures complained of by Qatar in the present case as part of its first claim, which are based on the current nationality of its citizens, do not fall within the scope of CERD (para. 105).

In the Court’s view, the various measures of which Qatar complains do not, either by their purpose or by their effect, give rise to racial discrimination against Qataris as a distinct social group on the basis of their national origin. The Court further observes that declarations criticizing a State or its policies cannot be characterized as racial discrimination within the meaning of CERD. Thus, the Court concludes that, even if the measures of which Qatar complains in support of its “indirect discrimination” claim were to be proven on the facts, they are not capable of constituting racial discrimination within the meaning of the Convention (para. 112).

However, the minority argued that either the actions by the UAE should be considered to constitute direct or indirect racial discrimination, or at least that the issue should be joined to the merits. It is notable that among the six dissenting Judges, five come from former colonies (Yusuf, Cançado Trindade, Sebutinde, Bhandary and Robinson), whereas the sixth is Japanese (Iwasawa).

The ICJ and the CERD Committee

The ICJ is an inter-state court and has not dealt with many human rights cases, see Crawford and Keene. It was not until the Diallo case from 2010 that the Court addressed the legal status of the practice from human rights treaty bodies. The Court stated that the Human Rights Committee’s practice should be accorded ‘great weight’ since it ‘was established specifically to supervise the application of the treaty [the ICCPR]’. But the Court also used a ‘systemic’ argument for relying on the Committee’s practice, referring to the need ‘to achieve the necessary clarity and the essential consistency of international law, as well as legal security’ (para. 66).

While the Court in Diallo found support in the practice by the Human Rights Committee, in Qatar v the UAE the disagreement over the interpretation of racial discrimination did not only divide the ICJ, but also led to conflicting interpretations between the Court and the CERD Committee. The ICJ stated:

The CERD Committee, in its General Recommendation XXX, considered that “differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim”. The Committee, a body of independent experts established specifically to supervise the application of CERD, relied on this General Recommendation when it found that it was competent to examine Qatar’s communication against the UAE and that this communication was admissible (para. 100).

The Court recalls that, in its Judgment on the merits in the Diallo case … it indicated that it should “ascribe great weight” to the interpretation of the International Covenant on Civil and Political Rights — which it was called upon to apply in that case — adopted by the Human Rights Committee … In this regard, it also affirmed, however, that it was “in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee” … In the present case concerning the interpretation of CERD, the Court has carefully considered the position taken by the CERD Committee, which is specified in paragraph 100 above, on the issue of discrimination based on nationality. By applying, as it is required to do (see paragraph 75 above), the relevant customary rules on treaty interpretation, it came to the conclusion indicated in paragraph 88 above, on the basis of the reasons set out above (para. 101).

However, it may be questioned whether the Court really accorded ‘great weight’ to the finding of the CERD Committee. Judge Bhandari writes in his dissenting opinion that the majority ‘does not take into account the observation that “it should ascribe great weight” to interpretations’ by the CERD, and that the judgment ‘provides no compelling reasons as to why its has chosen to depart from the reasoning in Diallo in this dispute, despite the fact that the CERD Committee remains “the guardian of the Convention”’ (para. 21). Judge Robinson in his dissenting opinion states that ‘[t]here is no reason why the Court should not attach great weight to the recommendations of the CERD Committee (which is properly seen as the guardian of the Convention), if they are not in conflict with international human rights law or general international law. This approach will promote the achievement of the clarity, consistency and legal security which the Court referred to in Ahmadou Sadio Diallo. It is regrettable that, in this case, the Court did not follow the CERD Committee’s recommendation. Notably, the majority did not offer any explanation for not following it’ (para 13).

Conclusion

The issue of racial discrimination is not only legally controversial, but also highly politically sensitive. International lawyers need hardly to be reminded about the ICJ crisis following the South West Africa cases of 1966. While the current dispute is not about the fight against apartheid, the interpretation of racial discrimination, or in the words of CERD Convention ‘national origin’, is capable of dividing the ICJ itself and create conflict with the CERD Committee. The International Law Commission listed in its Commentary on the Draft Articles on State Responsibility of 2001 racial discrimination among the peremptory norms (jus cogens) clearly accepted and recognized among national and international tribunals (p. 85).

In contrast to Diallo, the ICJ came in the present case to the opposite conclusion of that of a UN human rights treaty body, i.e. the CERD Committee. The Court had therefore the possibility of demonstrating the real legal weight of pronouncements of such bodies and its willingness to a judicial dialogue. It failed in both respects. The ICJ could not distinguish the issues as it did in the 2007 Genocide case. There, the Court argued that the standard of ‘overall control’ applied by the International Criminal Tribunal for the Former Yugoslavia’s (ICTY) Appeals Chamber in the Tadić case, for the purpose of international criminal law, was not necessarily in conflict with ‘effective control’, as required for establishing state responsibility (paras 403 and 404). However, in the present case, both the ICJ and the CERD Committee interpreted the same obligations of the CERD Convention.

It could be discussed which institution should be the lead agency for interpreting the CERD Convention: the general ICJ or the specialized CERD Committee. Nevertheless, the paramount position of the ICJ as ‘the principal judicial organ of the United Nations’ (UN Charter, Article 92) should be recognized, even more so in jus cogens issues. However, the Court should first of all heed the concerns set out in Diallo, i.e. to respect the intention of the parties in setting up a supervisory mechanism and to ensure the clarity and consistency of international law. The appreciation of the CERD Committee calls for an inclusive dialogue, addressing the arguments used by the Committee and showing where it went wrong. Instead, the Court in, splendid isolation, undertook its own interpretation. The Court could also have paid regard to the claims of direct or indirect discrimination based on national origin by joining the issue to the merits phase. On the other hand, the CERD Committee did not provide a very extensive interpretation of this issue. It takes two to tango, or to judicial dialogue.