• [407] Whereas:

• 1. On 11 June 2018, the State of Qatar (hereinafter referred to as “Qatar”) filed in the Registry of the Court an Application instituting proceedings against the United Arab Emirates (hereinafter referred to as the “UAE”) with regard to alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (hereinafter “CERD” or the “Convention”).

• [408] 2. At the end of its Application, Qatar

  in its own right and as parens patriae of its citizens, respectfully requests the Court to adjudge and declare that the UAE, through its State organs, State agents, and other persons and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control, has violated its obligations under Articles 2, 4, 5, 6, and 7 of the CERD by taking, inter alia, the following unlawful actions:

  • a. Expelling, on a collective basis, all Qataris from, and prohibiting the entry of all Qataris into, the UAE on the basis of their national origin;

  • b. Violating other fundamental rights, 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;

  • c. Failing to condemn and instead encouraging racial hatred against Qatar and Qataris and failing to take measures that aim to combat prejudices, including by inter alia: criminalizing the expression of sympathy toward Qatar and Qataris; allowing, promoting, and financing an international anti-Qatar public and social media campaign; silencing Qatari media; and calling for physical attacks on Qatari entities; and

  • d. Failing to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions.

  Accordingly,

  Qatar respectfully requests the Court to order the UAE to take all steps necessary to comply with its obligations under CERD and, inter alia:

  • a. Immediately cease and revoke the Discriminatory Measures, including but not limited to the directives against ‘sympathizing’ with Qataris, and any [Page 20] other national laws that discriminate de jure or de facto against Qataris on the basis of their national origin;

  • b. Immediately cease all other measures that incite discrimination (including media campaigns and supporting others to propagate discriminatory messages) and criminalize such measures;

  • [409] c. Comply with its obligations under the CERD to condemn publicly racial discrimination against Qataris, pursue a policy of eliminating racial discrimination, and adopt measures to combat such prejudice;

  • d. Refrain from taking any further measures that would discriminate against Qataris within its jurisdiction or control;

  • e. Restore rights of Qataris to, inter alia, 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, and put in place measures to ensure those rights are respected;

  • f. Provide assurances and guarantees of non-repetition of the UAE’s illegal conduct; and

  • g. Make full reparation, including compensation, for the harm suffered as a result of the UAE’s actions in violation of the CERD.

• 3. In its Application, Qatar seeks to found the Court’s jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article 22 of CERD.

• 4. On 11 June 2018, Qatar also submitted a Request for the indication of provisional measures, referring to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of Court.

• 5. At the end of its Request for the indication of provisional measures, Qatar asked the Court to indicate the following provisional measures:

  • (a) The UAE shall cease and desist from any and all conduct that could result, directly or indirectly, in any form of racial discrimination against Qatari individuals and entities by any organs, agents, persons, and entities exercising UAE governmental authority in its territory, or under its direction or control. In particular, the UAE shall immediately cease and desist from violations of the human rights of Qataris under the CERD, including by:

    • i. suspending operation of the collective expulsion of all Qataris from, and ban on entry into, the UAE on the basis of national origin;

    • ii. taking all necessary steps to ensure that Qataris (or persons with links to Qatar) are not subjected to racial hatred or discrimination, including by condemning hate speech targeting Qataris, ceasing publication of anti-Qatar statements [410] and caricatures, and refraining from any other incitement to racial discrimination against Qataris;

    • iii. suspending the application of its Federal Decree-Law No (5) of 2012, On Combatting Cybercrimes, to any person who “shows sympathy … towards Qatar” and any other domestic laws that (de jure or de facto) discriminate against Qataris;

    • [Page 21] iv. taking the measures necessary to protect freedom of expression of Qataris in the UAE, including by suspending the UAE’s closure and blocking of transmissions by Qatari media outlets;

    • v. ceasing and desisting from measures that, directly or indirectly, result in the separation of families that include a Qatari, and taking all necessary steps to ensure that families separated by the Discriminatory Measures are reunited (in the UAE, if that is the family’s preference);

    • vi. ceasing and desisting from measures that, directly or indirectly, result in Qataris being unable to seek medical care in the UAE on the grounds of their national origin and taking all necessary steps to ensure that such care is provided;

    • vii. ceasing and desisting from measures that, directly or indirectly, prevent Qatari students from receiving education or training from UAE institutions, and taking all necessary steps to ensure that students have access to their educational records;

    • viii. ceasing and desisting from measures that, directly or indirectly, prevent Qataris from accessing, enjoying, utilizing, or managing their property in the UAE, and taking all necessary steps to ensure that Qataris may authorize valid powers of attorney in the UAE, renew necessary business and worker licenses, and renew their leases; and

    • ix. taking all necessary steps to ensure that Qataris are granted equal treatment before tribunals and other judicial organs in the UAE, including a mechanism to challenge any discriminatory measures.

  • (b) The UAE shall abstain from any measure that might aggravate, extend, or make more difficult resolution of this dispute; and

  • [411] (c) The UAE shall abstain from any other measure that might prejudice the rights of Qatar in the dispute before the Court.

• 6. The Registrar immediately communicated to the Government of the UAE the Application, in accordance with Article 40, paragraph 2, of the Statute of the Court, and the Request for the indication of provisional measures, in accordance with Article 73, paragraph 2, of the Rules of Court. He also notified the Secretary-General of the United Nations of the filing of the Application and the Request by Qatar.

• 7. Pending the notification provided for by Article 40, paragraph 3, of the Statute by transmission of the printed bilingual text of the Application to the Members of the United Nations through the Secretary-General, the Registrar informed those States of the filing of the Application and the Request.

• 8. Since the Court included upon the Bench no judge of the nationality of either Party, each Party proceeded to exercise the right conferred upon it by Article 31 of the Statute to choose a judge ad hoc to sit in the case. Qatar chose Mr Yves Daudet and the UAE Mr Jean-Pierre Cot.

• 9. By letters dated 14 June 2018, the Registrar informed the Parties that, pursuant to Article 74, paragraph 3, of its Rules, the Court had [Page 22] fixed 27, 28 and 29 June 2018 as the dates for the oral proceedings on the Request for the indication of provisional measures.

• 10. At the public hearings, oral observations on the Request for the indication of provisional measures were presented by:

  

• 11. At the end of its second round of oral observations, Qatar asked the Court to indicate the following provisional measures:

  • (a) The UAE shall cease and desist from any and all conduct that could result, directly or indirectly, in any form of racial discrimination against Qatari individuals and entities by any organs, agents, persons, and entities exercising UAE governmental authority in its territory, or under its direction or control. In particular, [412] the UAE shall immediately cease and desist from violations of the human rights of Qataris under the CERD, including by:

    • i. suspending operation of the collective expulsion of all Qataris from, and ban on entry into, the UAE on the basis of national origin;

    • ii. taking all necessary steps to ensure that Qataris (or persons with links to Qatar) are not subjected to racial hatred or discrimination, including by condemning hate speech targeting Qataris, ceasing publication of anti-Qatar statements and caricatures, and refraining from any other incitement to racial discrimination against Qataris;

    • iii. suspending the application of its Federal Decree Law No (5) of 2012, On Combatting Cybercrimes, to any person who “shows sympathy … towards Qatar” and any other domestic laws that (de jure or de facto) discriminate against Qataris;

    • iv. taking the measures necessary to protect freedom of expression of Qataris in the UAE, including by suspending the UAE’s closure and blocking of transmissions by Qatari media outlets;

    • v. ceasing and desisting from measures that, directly or indirectly, result in the separation of families that include a Qatari, and taking all necessary [Page 23] steps to ensure that families separated by the Discriminatory Measures are reunited (in the UAE, if that is the family’s preference);

    • vi. ceasing and desisting from measures that, directly or indirectly, result in Qataris being unable to seek medical care in the UAE on the grounds of their national origin and taking all necessary steps to ensure that such care is provided;

    • vii. ceasing and desisting from measures that, directly or indirectly, prevent Qatari students from receiving education or training from UAE institutions, and taking all necessary steps to ensure that students have access to their educational records;

    • viii. ceasing and desisting from measures that, directly or indirectly, prevent Qataris from accessing, enjoying, utilizing, or managing their property in the UAE, and taking all necessary steps to ensure that Qataris may authorize valid powers [413] of attorney in the UAE, renew necessary business and worker licenses, and renew their leases; and

    • ix. taking all necessary steps to ensure that Qataris are granted equal treatment before tribunals and other judicial organs in the UAE, including a mechanism to challenge any discriminatory measures.

  • (b) The UAE shall abstain from any measure that might aggravate, extend, or make more difficult resolution of this dispute; and

  • (c) The UAE shall abstain from any other measure that might prejudice the rights of Qatar in the dispute before the Court.

• 12. At the end of its second round of oral observations, the UAE requested the Court “to reject the request for the indication of provisional measures submitted by the State of Qatar”.

• 13. At the hearings, Members of the Court put questions to the Parties, to which replies were given in writing, in accordance with Article 61, paragraph 4, of the Rules of Court. Under Article 72 of the Rules of Court, each Party presented written comments on the written replies received from the other.

*

* *

1. General introduction

• 14. The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the [Page 24] case (see, for example, Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May 2017, ICJ Reports 2017, p. 236, para. 15).

• 15. In the present case, Qatar seeks to found the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on Article 22 of CERD (see paragraph 3 above). The Court must therefore first determine whether those provisions prima facie confer upon it jurisdiction to rule on the merits of the case, enabling it—if the other necessary conditions are fulfilled—to indicate provisional measures.

• [414] 16. Qatar and the UAE are parties to CERD. Qatar acceded to that instrument on 22 July 1976, without entering any reservation; the UAE did so on 20 June 1974, without entering a reservation to Article 22 or any other relevant reservation for the present purposes.

• 17. Article 22 of CERD provides that:

  Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

2. Existence of a dispute concerning the interpretation or application of CERD

• 18. Article 22 of CERD makes the Court’s jurisdiction conditional on the existence of a dispute arising out of the interpretation or application of CERD. A dispute between States exists where they hold clearly opposite views concerning the question of the performance or non‑performance of certain international obligations (see Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, ICJ Reports 2017, p. 115, para. 22, citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, ICJ Reports 1950, p. 74). The claim of one party must be “positively opposed” by the other (South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, ICJ Reports 1962, p. 328). In order to determine whether a dispute exists, the Court “cannot limit itself to noting that one of the Parties maintains that the Convention applies, while the other denies it” (Immunities and Criminal Proceedings [Page 25] (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, ICJ Reports 2016 (II), p. 1159, para. 47). Since Qatar has invoked as a basis of the Court’s jurisdiction the compromissory clause in an international convention, the Court must ascertain whether “the acts complained of by [the Applicant] are prima facie capable of falling within the provisions of that instrument and … [whether,] as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain” (ibid.).

  * *

• 19. Qatar contends that a dispute exists between the Parties concerning the interpretation and application of CERD. It asserts that, beginning on [415] 5 June 2017, the UAE took discriminatory measures against Qataris and their families in violation of the provisions and principles underlying CERD. More specifically, Qatar states that, on 5 June 2017, the UAE “expelled all Qataris within its territory, giving them only 14 days to leave” and that it continues to prohibit Qataris from entering the UAE. Qatar observes that such measures do not apply to other non-citizens residing in the UAE. It therefore contends that the Respondent has targeted Qataris on the basis of their national origin, in violation of Article 1, paragraph 1, of CERD. Relying, inter alia, on General Recommendation XXX of the CERD Committee, Qatar argues that the Convention applies to discriminatory conduct based on Qatari national origin or nationality.

• 20. According to Qatar, because of the measures taken by the UAE, “[t]housands of Qataris are unable to return to the UAE, are separated from their families there, and are losing their homes, their jobs, their property, access to medical care, and the opportunity to pursue their education”. It adds that there is no opportunity for Qataris to seek justice for these violations. The Applicant thus submits that the UAE is interfering with Qataris’ basic human rights under Articles 2 and 5 of CERD. More specifically, it contends that the Respondent is violating—vis-à-vis Qataris—their right to marriage and choice of spouse; their right to freedom of opinion and expression; their right to public health and medical care; their right to education and training; their right to property; their right to work and their right to equal treatment before tribunals.

• 21. Qatar also maintains that the UAE has violated its obligations under Articles 4 and 7 of CERD “by failing to condemn racial hatred and prejudice and by inciting such hatred and prejudice against Qatar and Qataris”. It further asserts that the UAE has failed to provide Qataris within its jurisdiction with effective protection and [Page 26] remedies against acts of racial discrimination, in violation of Article 6 of CERD.

  *

• 22. The UAE contends that there is no dispute between the Parties concerning the interpretation or application of CERD. It states that there has been no mass expulsion of Qataris from the UAE, that all Qataris in the UAE continue to enjoy the full rights granted by law to all residents of or visitors to the country and that Qataris live with their families, attend school, and have access to health care as well as government services. The UAE explains that the measures it adopted in June 2017 were [416] “to impose additional requirements on the entry or re-entry into [its] territory by Qatari nationals”.

• 23. The UAE further contends that no Qatari citizens have been prevented from seeking legal remedies for any matter and that there has been no interference in the business affairs of Qatari nationals. The UAE maintains that it has not engaged in any media campaign against Qataris based on their nationality. Moreover, according to the UAE, there is no dispute falling within the scope of CERD as regards any alleged interference with freedom of expression.

• 24. In addition, the UAE asserts that, “even taking the factual allegations made by Qatar at face value”, those allegations do not concern prohibited “racial” discrimination as defined in the Convention or other prohibited measures falling within the scope of the Convention. The UAE considers that the term “national origin” in Article 1, paragraph 1, of CERD is “twinned with” “ethnic origin” and that “national origin” is not to be read as encompassing “present nationality”. It explains that such an interpretation flows from the ordinary meaning of that provision, when read in its context and in light of the object and purpose of the Convention. The UAE also considers that its interpretation is confirmed by the travaux préparatoires. It thus argues that Qatar’s claims relating to alleged differences of treatment of Qatari nationals based solely on their present nationality fall outside the scope ratione materiae of CERD.

  * *

• 25. The Court considers that, as evidenced by the arguments advanced and the documents placed before it, the Parties differ on the nature and scope of the measures taken by the UAE beginning on 5 June 2017 as well as on the question whether they relate to rights and obligations under CERD. Paragraph 2 of the statement made by the UAE on 5 June 2017 envisages the following measures:

  [Page 27] Preventing Qatari nationals from entering the UAE or crossing its points of entry, giving Qatari residents and visitors in the UAE 14 days to leave the country for precautionary security reasons. The UAE nationals are likewise banned from traveling to or staying in Qatar or transiting through its territories.

• 26. The Court notes that Qatar contends that the measures adopted by the UAE purposely targeted Qataris based on their national origin. Consequently, according to Qatar, the UAE has failed to respect its obligations under Articles 2, 4, 5, 6 and 7 of CERD. The Court observes that Qatar maintains in particular that, because of the measures taken on 5 June 2017, UAE-Qatari mixed families have been separated, medical [417] care has been suspended for Qataris in the UAE, depriving those who were under medical treatment from receiving further medical assistance, Qatari students have been deprived of the opportunity to complete their education in the UAE and to continue their studies elsewhere since UAE universities have refused to provide them with their educational records, and Qataris have not been granted equal treatment before tribunals and other judicial organs in the UAE. For its part, the UAE firmly denies that it has committed any of the violations set out above.

• 27. 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.

• 28. The Court finds that the above-mentioned elements are sufficient at this stage to establish the existence of a dispute between the Parties concerning the interpretation or application of CERD.

3. Procedural preconditions

• 29. The Court recalls that it has previously indicated that the terms of Article 22 of CERD establish procedural preconditions to be met [Page 28] before the seisin of the Court (see Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2011 (I), p. 128, para. 141). Under Article 22 of CERD, the dispute referred to the Court must be a dispute “not settled by negotiation or by the procedures expressly provided for in this Convention”. In addition, Article 22 states that the dispute may be referred to the Court at the request of any of the parties to the dispute only if the parties have not agreed to another mode of settlement. The Court notes that neither Party contends that they have agreed to another mode of settlement.

  * *

• [418] 30. Concerning the first precondition under Article 22, Qatar asserts that it made “genuine attempts to negotiate with the UAE in order to bring an end to the dispute and to the human rights violations that continue to impose suffering on its people”. It adds that it has repeatedly raised questions of specific human rights violations resulting from unlawful acts of discrimination by the UAE against Qataris, since June 2017. More specifically, the Applicant refers to declarations made by high-ranking State officials, in particular an address made on 25 February 2018 to the United Nations Human Rights Council by Qatar’s Minister for Foreign Affairs. Qatar asserts moreover that its Minister of State for Foreign Affairs, by a letter dated 25 April 2018, expressly referred to violations of specific provisions of CERD through the UAE’s actions of 5 June 2017, and called on the UAE “to enter into negotiations in order to resolve these violations and the effects thereof”. The Applicant indicates that, although the invitation asked for a reply within two weeks, the UAE never responded. The Applicant therefore considers that the UAE has either rebuffed or ignored Qatar’s efforts to negotiate a peaceful resolution to the dispute and that the Parties have not consequently been able to settle their dispute, despite genuine attempts by Qatar to negotiate.

• 31. With regard to the second precondition included in Article 22 of CERD, namely the use of the procedures expressly provided for in the Convention, Qatar states that it deposited, on 8 March 2018, a communication with the CERD Committee under Article 11 of the Convention. It argues, however, that initiation or completion of that procedure is not a precondition to the Court’s exercise of jurisdiction in the present case. It also points out that it does not rely on this communication for the purposes of showing prima facie jurisdiction.

• [Page 29] 32. The Applicant finally expresses the view that, in any event, the question whether the two preconditions included in Article 22 of CERD have a cumulative and successive character should not be decided by the Court at this stage.

  *

• 33. In response to Qatar’s arguments concerning the fulfilment of the preconditions included in Article 22 of CERD, the UAE first of all contends that they are cumulative and must be fulfilled successively before the seisin of the Court.

• 34. As far as the fulfilment of the first precondition is concerned, the UAE argues that, despite its allegations, Qatar has never made a “genuine attempt to negotiate” regarding the application of CERD. According to the UAE, the statements relied on by Qatar only relate very broadly to routine allegations of human rights violations and when, in passing, these [419] documents mention CERD, the reference is not accompanied by any form of proposal to negotiate. It adds that none of these statements can be considered as an offer to negotiate with a view to settling the dispute alleged by Qatar under Article 22 of CERD. With regard to Qatar’s letter dated 25 April 2018, which was received, according to the Respondent, on 1 May 2018, the UAE states that this document once again concerns alleged human rights violations in general, and makes no mention of Article 22 of CERD. The UAE asserts that this alleged offer took the form of an “ultimatum”, and underlines that it was sent almost a year after the Ministry of Foreign Affairs of the UAE made a statement asking Qataris to leave the country within 14 days. The UAE explains that it neither accepted nor refused Qatar’s alleged invitation. It affirms that it was informed only on 7 May 2018 that Qatar had addressed a communication to the CERD Committee. It also points out that Qatar submitted to the Court, on 11 June 2018, its Application instituting the proceedings in the present case and at the same time requested provisional measures without waiting for the outcome of the procedure before the CERD Committee. The UAE therefore concludes that, while it is true that the alleged dispute has not been settled by negotiation, “there has been no ‘genuine attempt’ to do so”.

• 35. Regarding the second precondition included in Article 22 of CERD, namely the use of the procedures expressly provided for in the Convention, the UAE submits that Qatar must exhaust the procedure in the CERD Committee before seising the Court. In the alternative, the Respondent considers that the way in which Qatar has proceeded is [Page 30] incompatible with both the electa una via principle and the lis pendens exception, as the same claim has been submitted to two different bodies by the same applicant against the same respondent.

  * *

• 36. Regarding the first precondition, namely the negotiations to which the compromissory clause refers, the Court observes that negotiations are distinct from mere protests or disputations and require a genuine attempt by one of the parties to engage in discussions with the other party, with a view to resolving the dispute. Where negotiations are attempted or have commenced, the precondition of negotiation is only met when the attempt to negotiate has been unsuccessful or where negotiations have failed, or become futile or deadlocked. In order to meet the precondition of negotiation contained in the compromissory clause of a treaty, “the subject‑matter of the negotiations must relate to the subject‑matter of the dispute which, in turn, must concern the substantive obligations contained in the treaty in question” (see Application of the International [420] Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2011 (I), p. 133, para. 161). At this stage of the proceedings, the Court first has to assess whether it appears that Qatar genuinely attempted to engage in negotiations with the UAE, with a view to resolving their dispute concerning the latter’s compliance with its substantive obligations under CERD, and whether it appears that Qatar pursued these negotiations as far as possible.

• 37. The Court notes that it has not been challenged by the Parties that issues relating to the measures taken by the UAE in June 2017 have been raised by representatives of Qatar on several occasions in international fora, including at the United Nations, in the presence of representatives of the UAE. For example, during the thirty-seventh session of the United Nations Human Rights Council in February 2018, the Minister for Foreign Affairs of Qatar referred to “the violations of human rights caused by the unjust blockade and the unilateral coercive measures imposed on [his] country that have been confirmed by the … report of the Office of the United Nations High Commissioner for Human Rights Technical Mission”, while the UAE—along with Bahrain, Saudi Arabia and Egypt—issued a joint statement “in response to [the] remarks” made by the Minister for Foreign Affairs of Qatar.

• 38. The Court further notes that, in a letter dated 25 April 2018 and addressed to the Minister of State for Foreign Affairs of the UAE, [Page 31] the Minister of State for Foreign Affairs of Qatar referred to the alleged violations of CERD arising from the measures taken by the UAE beginning on 5 June 2017 and stated that “it [was] necessary to enter into negotiations in order to resolve these violations and the effects thereof within no more than two weeks”. The Court considers that the letter contained an offer by Qatar to negotiate with the UAE with regard to the latter’s compliance with its substantive obligations under CERD. In the light of the foregoing, and given the fact that the UAE did not respond to that formal invitation to negotiate, the Court is of the view that the issues raised in the present case had not been resolved by negotiations at the time of the filing of the Application.

• 39. The Court now turns to the second precondition contained in Article 22 of CERD, relating to “the procedures expressly provided for in the Convention”. It is recalled that, according to Article 11 of the Convention, “[i]f a State Party considers that another State Party is not giving effect to the provisions of this Convention”, the matter may be brought to the attention of the CERD Committee. The Court notes that Qatar deposited, on 8 March 2018, a communication with the CERD Committee under Article 11 of the Convention. It observes, however, that Qatar does not rely on this communication for the purposes of showing prima facie jurisdiction in the present case. Although the Parties disagree as to [421] whether negotiations and recourse to the procedures referred to in Article 22 of CERD constitute alternative or cumulative preconditions to be fulfilled before the seisin of the Court, the Court is of the view that it need not make a pronouncement on the issue at this stage of the proceedings (see Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, ICJ Reports 2017, pp. 125-6, para. 60). Nor does it consider it necessary, for the present purposes, to decide whether any electa una via principle or lis pendens exception are applicable in the present situation.

• 40. The Court thus finds, in view of all the foregoing, that the procedural preconditions under Article 22 of CERD for its seisin appear, at this stage, to have been complied with.

4. Conclusion as to prima facie jurisdiction

• 41. In light of the foregoing, the Court concludes that, prima facie, it has jurisdiction pursuant to Article 22 of CERD to deal with the case [Page 32] to the extent that the dispute between the Parties relates to the “interpretation or application” of the said Convention.

  *

  * *

• 42. The Court notes that the UAE has contended that Qatar had to prove that its citizens had exhausted local remedies before it seised the Court and that Qatar has denied that the exhaustion of local remedies is a precondition for the seisin of the Court in the present case. The Court observes that, in the current proceedings, Qatar asserts its rights on the basis of alleged violations of CERD by the UAE. The Court further notes that the UAE did not indicate any effective local remedies that were available to the Qataris that have not been exhausted. The Court is of the view that, at this stage of the proceedings relating to a request for the indication of provisional measures, the issue of exhaustion of local remedies need not be addressed by the Court.

Table of contents

• I. Prolegomena 1-6

• II. A new era of international adjudication of human rights cases by the ICJ 7-8

• III. The relevance of the fundamental principle of equality and non-discrimination 9-21

• IV. Non-discrimination and the prohibition of arbitrariness 22-32

• V. Arguments of the Parties in the public hearings before the Court 33-6

• VI. Questions put to the Parties in the public hearings before the Court 37-61

  • 1. Questions and answers 37-47

  • 2. General assessment: Rationale of the local remedies rule in international human rights protection 48-56

  • 3. General assessment: Implications of a continuing situation 57-61

• VII. The correct understanding of compromissory clauses under human rights conventions 62-7

• VIII. Vulnerability of segments of the population 68-73

• IX. Towards the consolidation of the autonomous legal regime of provisional measures of protection 74-7

• X. International law and the temporal dimension 78-81

• XI. Provisional measures of protection in continuing situations 82-93

• XII. Epilogue: A recapitulation 94-104

I. Prolegomena

• 1. I have concurred, with my vote, for the adoption today, 23 July 2018, by the International Court of Justice (ICJ), of the present Order [439] indicating provisional measures of protection in the case of the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) [hereafter Application of the CERD Convention (Qatar v. United Arab Emirates)]. The ICJ has rightly ordered today, with my support, provisional measures of protection, under the CERD Convention. Additionally, as I attribute great importance to some related issues in the cas d’espèce, that in my perception underlie the present decision of the ICJ but are left out of the Court’s reasoning, I feel obliged to leave on the records, in the present separate opinion, the identification of such issues and the foundations of my own personal position thereon.

• 2. I do so, under the merciless pressure of time, moved by a sense of duty in the exercise of the international judicial function, even more so as some of the lessons I extract from the matter forming the object of the [Page 49] present decision of the Court are not explicitly dealt with in the Court’s reasoning in the present Order. This grows in importance in a case, like the present one (and two other cases before—cf. infra), lodged with the ICJ under a core human rights treaty like the CERD Convention.

• 3. This being so, I shall develop my reflections, initially, in the following sequence: (a) a new era of international adjudication of human rights cases by the ICJ; (b) the relevance of the fundamental principle of equality and non-discrimination; and (c) non-discrimination and the prohibition of arbitrariness. I shall then examine the arguments made by the contending Parties in the public hearings before the ICJ, and the written responses they presented to the questions that I have deemed it fit to put to them; following that, I shall provide my general assessment as to the rationale of the local remedies rule in international human rights protection, and as to implications of a continuing situation.

• 4. Following that, I shall develop my further reflections on the remaining points to consider, namely: (a) the correct understanding of compromissory clauses under human rights conventions; (b) vulnerability of segments of the population; (c) the consolidation of the autonomous legal regime of provisional measures of protection; (d) international law and the temporal dimension; and (e) provisional measures of protection in continuing situations. Last but not least, in an epilogue, I shall conclude with a recapitulation of the key points of the position I sustain in the present separate opinion.

• 5. To start with, may I recall that, in a relatively brief period of time (2011-2018), the cas d’espèce on Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) is the third case lodged with the ICJ under the United Nations CERD Convention. The present Order follows chronologically the Court’s decisions in the cases of Georgia v. Russian Federation [440] (preliminary objections, 2011)Footnote ¹ and of Ukraine v. Russian Federation (provisional measures of protection, 2017).Footnote ²

• [Page 50] 6. In addition to those three cases under the CERD Convention, there have been other cases brought before the ICJ, and decided by it, along the last eight years, concerning also other human rights treaties. May I recall, in this respect, the case on Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (merits, 2012), under the UN Convention against Torture. Another example is provided by the case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (merits, 2010, and reparations, 2012), in respect of, inter alia, the UN Covenant on Civil and Political Rights (cf. infra).

II. A new era of international adjudication of human rights cases by the ICJ

• 7. To the ICJ’s Judgment on the merits (of 30 November 2010) in the case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), I appended a separate opinion, wherein, inter alia, I deemed it fit to draw attention to the advent of a new era of international adjudication of human rights cases by the ICJ (ICJ Reports 2010 (II), pp. 807-11, paras. 232-45). In particular, I singled out, that it was the first time in its history that “the World Court has expressly taken into account the contribution of the case law of two international human rights tribunals, the European and the Inter-American Courts, to the perennial struggle of human beings against arbitrariness”. In effect, I added, paragraph 65 of its Judgment referred to “the protection of the human person against arbitrary treatment, encompassing the prohibition of arbitrary expulsion”Footnote ³ (ibid., p. 809, para. 237). I then concluded that

• [441]

  It is indeed reassuring that the ICJ has disclosed a new vision of this particular issue, in so far as international human rights tribunals are concerned. This is particularly important at a time when States rely, in their submissions to this Court, on relevant provisions of human rights conventions, as both Guinea and the DRC have done in the present case, in their arguments centred on the UN Covenant on Civil and Political Rights and the [Page 51] African Charter on Human and Peoples’ Rights (in addition to the relevant provision of the Vienna Convention on Consular Relations, in the framework of the international protection of human rights).

  This is not the only example wherein this has occurred. On 29 May 2009, the ICJ delivered its Order (on provisional measures) in the case concerning Questions relating to the Obligation to Prosecute or Extradite, wherein Belgium and Senegal presented their submissions concerning the interpretation and application of the relevant provisions of the 1984 UN Convention against Torture. And, very recently, a few days ago, in the public sittings before this Court of 13 to 17 September 2010, Georgia and the Russian Federation submitted their oral arguments in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination, another UN human rights treaty. It is reassuring that States begin to rely on human rights treaties before this Court, heralding a move towards an era of possible adjudication of human rights cases by the ICJ itself. The international juridical conscience has at last awakened to the fulfillment of this need.

  The ICJ, in the exercise of its contentious as well as advisory functions in recent years, has referred either to relevant provisions of a human rights treaty such as the Covenant on Civil and Political Rights, or to the work of its supervisory organ, the Human Rights Committee. These antecedents are not to pass unnoticed, in acknowledging the turning point which has just occurred in the present Diallo case: the Court, in the Judgment being delivered today, 30 November 2010, has gone much further, beyond the United Nations system, in acknowledging the contribution of the jurisprudential construction of two other international tribunals, the Inter-American [IACtHR] and the European [ECtHR] Courts of Human Rights. It has also dwelt upon the contribution of an international human rights supervisory organ, the African Commission on Human and Peoples’ Rights. The three regional human rights systems operate within the framework of the universality of human rights.

  …

  By cultivating this dialogue, attentive to each other’s work in pursuance of a common mission, contemporary international tribunals [442] will provide avenues not only for States, but also for human beings, everywhere, and in respect of distinct domains of international law, to recover their faith in human justice. They will thus be enlarging and strengthening the aptitude of contemporary international law to resolve disputes occurred not only at inter-State level, but also at intra-State level. And they will thus be striving towards securing to States as well as to human beings what they are after: the realization of justice.

  (ICJ Reports 2010 (II), pp. 809-11, paras. 241-3 and 245.)

• 8. In the light of the aforementioned, and bearing in mind all that has been happening here at the Grande Salle de Justice in the Peace Palace at The Hague in the last nine years, one is to acknowledge that we are already within the new era of international adjudication of [Page 52] human rights cases by the ICJ. The present case of Application of the CERD Convention (Qatar v. United Arab Emirates) bears witness of that. Having pointed this out, I can now move to the next point to consider in this separate opinion, namely, the relevance of the fundamental principle of equality and non-discrimination.

III. The relevance of the fundamental principle of equality and non-discrimination

• 9. In the cas d’espèce, Qatar’s Request for the indication of provisional measures of protection (of 11 June 2018) identifies the rights it seeks to protect against discriminatory measures that “violate the customary international law principle of non-discrimination as well as the specific obligations enumerated in CERD [Convention] Articles 2, 4, 5, 6, 7” (p. 8, para. 12).Footnote ⁴ The principle of equality and non-discrimination lies indeed in the foundations of the protected rights under the CERD Convention. This is a point which should have been attentively addressed by the contending Parties in the course of the current proceedings,Footnote ⁵ which were largely consumed by diverting attention to points with no bearing at all on the consideration of provisional measures of protection under a human rights convention.

• 10. This being so, I feel obliged to fill the gap, as I nourish the hope that this unfortunate diversion does not happen again in cases of the kind before the ICJ, where the applicable law is a human rights convention, and not at all diplomatic protection rules. It is the principle of equality and non-discrimination which here calls for attention, there being no place for devising or imagining new “preconditions” for the consideration [443] of provisional measures of protection under a human rights convention; it makes no sense to intermingle at this stage the consideration of provisional measures with so-called “plausible admissibility” (cf. Section VI, infra).

• 11. In focusing attention, thus, on the principle of equality and non-discrimination, it should not pass unnoticed, to start with, that the idea of human equality marked presence already in the origins of the law of nations (droit des gens), well before finding expression in the international instruments which conform its corpus juris gentium, as [Page 53] known in our times. The idea of human equality was underlying the original conception of the unity of human kind (present, for example, in the pioneering thinking of Francisco de Vitoria and Bartolomé de Las Casas in the sixteenth century).

• 12. The fundamental principle of equality and non-discrimination is nowadays a basic pillar of the UN CERD Convention, and of the whole corpus juris of the international law of human rights. The expression of such principle emanated from human conscience, and projected itself in the evolving law of nations from the seventeenth to the twenty-first centuries. The principle of equality and non-discrimination has a long history, accompanying the historical formation and evolution of the law of nations itself.

• 13. By the mid-twentieth century, the 1948 Universal Declaration of Human Rights proclaimed that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” (Art. 1). It added that “[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination” (Art. 7).

• 14. And the 1945 Charter of the United Nations began by asserting the determination of “the peoples of the United Nations” to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small” (second preambular paragraph). Nowadays, the fundamental principle of equality and non-discrimination lies also in the foundations of the law of the United Nations itself.

• 15. The gradual consolidation of the mechanisms of international protection of human rights, moreover, has much contributed to a growing awareness of the importance of the prevalence of the basic principle of equality and non-discrimination. Certain expressions were to emerge (e.g., “equality before the law” and “equal protection of the law”), on the basis of human values, and associated to the corresponding obligations of States Parties to human rights treaties.

• 16. Supervisory organs of such treaties have been giving their constant contribution—of growing importance—to the prohibition of the discrimination de facto or de jure, in their faithful exercise of their functions [444] of protection of the human person.Footnote ⁶ The [Page 54] obligation of non-discrimination as related to the substantive rights protected under those treaties draws attention to the positive obligations of the States Parties to secure the protection of the human beings under their jurisdiction against the discrimination in all ambits of human relations.Footnote ⁷

• 17. For its part, the Committee on the Elimination of Racial Discrimination, for example, has in this respect issued General Recommendations orienting its own interpretation of the relevant provisions of the CERD Convention. Among them, there are those which have an incidence in the consideration of the present case of Application of the CERD Convention (Qatar v. United Arab Emirates), namely: General Recommendation No 30 (of 19 August 2004), on discrimination against non-citizens; General Recommendation No 35 (of 26 September 2013), on combatting racist hate speech; General Recommendation No 25 (of 20 March 2000), on gender-related dimensions of racial discrimination; General Recommendation No 22 (of 23 August 1996), on Article 5 of the CERD Convention in relation to refugees and displaced persons.

• 18. The advances in respect of the basic principle of equality and non-discrimination at normative and jurisprudential levels,Footnote ⁸ have not, however, been accompanied by the international legal doctrine, which so far has not dedicated sufficient attention to that fundamental principle; it stands far from guarding proportion to its importance both in theory and practice of law. This is one of the rare examples of international case law preceding international legal doctrine, and requiring from it due and greater attention.

• 19. A significant jurisprudential advance is found in the ground-breaking Advisory Opinion No 18 (of 17 September 2003) of the IACtHR, on the Juridical Condition and Rights of Undocumented Migrants, upholding the view that the fundamental principle of equality and non-discrimination had entered the realm of jus cogens, thus enlarging its material content (paras. 97-101 and 110-11).Footnote ⁹ In the IACtHR’s understanding, States cannot discriminate, nor tolerate discriminatory situations to the detriment of those persons; they had a duty to guarantee [445] them the due process of law, irrespective of [Page 55] their migratory status. States can no longer subordinate or condition the observance of the principle of equality before the law and non-discrimination to the objectives of their migratory or other policies.

• 20. For my part, I focused on this significant jurisprudential advance in my concurring opinion appended to the aforementioned Advisory Opinion No 18 of the IACtHR, wherein I stressed, in support of the Court’s position, the relevance of the basic principle of equality and non-discrimination, enlarging the material content of jus cogens, and permeating, together with other general principles of law, the whole juridical order itself, conforming its substratum (paras. 44-6, 52-8, 65 and 72).Footnote ¹⁰ Without such principles, there is ultimately no legal order at all. I developed my whole reasoning in the line of jusnaturalist thinking, which marked the origins and historical evolution of the law of nations (droit des gens), in the framework of the civitas maxima gentium and of the universality of humankind.

• 21. The path was then paved for jurisprudential developments also in the international adjudication of contentious cases pertaining to the basic principle of equality and non-discrimination.Footnote ¹¹ In effect, this fundamental principle has been addressed—in Judgments on contentious cases as well as in Advisory Opinions—in face of social marginalization (IACtHR, cases of Servellón-García et al., 2006, and of Sawhoyamaxa Indigenous Community, 2006); of prohibition of arbitrariness (Ahmadou Sadio Diallo, merits, 2010, and reparations, 2012; Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010; and the case concerning the CERD Convention (Georgia v. Russian Federation), 2011), as well as in face of procedural equality (IACtHR, case Loayza Tamayo, 1997; and the Advisory Opinion on Judgment No 2867 of the Administrative Tribunal of the International [446] Labour [Page 56] Organization upon a Complaint Filed against the International Fund for Agricultural Development, 2012).

IV. Non-discrimination and the prohibition of arbitrariness

• 22. The protection being sought before the ICJ in the cas d’espèce, under the CERD Convention, is furthermore against arbitrary measures, against arbitrariness. Brief references were made to this in the course of the present oral pleadings before the ICJ.Footnote ¹² This point has not escaped the attention of other international tribunals, under other human rights conventions: for example, inter alia, in its Judgment (merits, of 3 July 2014) on the case of Georgia v. Russia, the European Court of Human Rights (ECtHR) singled out the duty under the European Convention on Human Rights (ECHR) “to protect the individual from arbitrariness”, and found that the arrests and detentions that preceded “collective” expulsions (of nationals of the applicant State) amounted to “an administrative practice” in breach of Article 5(1) and (4) of the ECHR (paras. 182 and 186-8).

• 23. Subsequently, in its Judgment (merits, of 23 August 2016) on the case of J. K. and Others v. Sweden, concerning expulsion of non-citizens (the applicants being Iraqi nationals), the ECtHR held that, if deported, they would face a risk of being subjected to treatment in breach of Article 3 of the ECHR (para. 123) in the destination country. In effect, non-discrimination and the prohibition of arbitrariness are a point which cannot be overlooked, also in a wider framework, in time and space. After all, in the relations between human beings and public power, arbitrariness is an issue which has marked presence everywhere along the history of humankind. It has been a source of concern over the centuries. This is why the tragedies written and performed in ancient Greece remain so contemporary in our days, after so many centuries.

• 24. Suffice it here to recall, e.g., in Sophocles’s Antigone (441 bc), the arbitrariness of the ruler Creon’s decree prohibiting Antigone to bury the corpse of one of her deceased brothers (Polynices), and her determination nevertheless to do so in pursuance of justice; or else further to recall, some years later, e.g., in Euripides’s Suppliant Women (424-419 bc), the arbitrariness that led to the grief and lamentation of [Page 57] the women whose [447] deceased children had been separated from them, and their corpses then needed to be buried.

• 25. Sophocles’s Antigone, in particular, has been rewritten, in successive centuries, by several other authors, bearing in mind their respective contemporary manifestations of arbitrariness. Although the ancient Greeks had eyes mainly for justice rather than law (and only later on, Romans of the ancient Empire began to distinguish between law and justice), there are those who seek to associate the tragedy of Sophocles with the seeds or origins of the distinction between natural law and positive law.

• 26. In any case, arbitrariness, as history shows, is unfortunately part of human nature, and the discrimination that ensues therefrom is both de facto and de jure. If we look at the world nowadays, marked by a serious crisis of values, we can see, on all continents, the inhumane split of families in frontiers, in particular those of migrants or non-citizens. Positive law alone cannot solve the problems created at times by itself, to the detriment of human beings in situations of vulnerability (cf. infra). Law and justice go together, they are indissociable, in the line of the more lucid jusnaturalist thinking.

• 27. It is important to keep those ancient Greek tragedies in mind to also face so-called “globalization”, a misleading and false neologism en vogue in the twenty-first century. Such neologism hides the marginalization and social exclusion of increasingly greater segments of the population (including migrants). Frontiers have been opened to capital and goods, but are sadly being closed down to human beings (with the split of families, new walls, fences and detention centres, on distinct continents).

• 28. The material progress of some has been accompanied by the exploitation of many (including undocumented migrants). Some human beings (especially powerholders) have placed most fellow human beings on a scale of priority inferior to that attributed to capital and goods. Nothing has been learned from the sufferings of past generations; hence the need to remain attached to the goal of the realization of justice, bearing in mind that law and justice go indissociably together. The ICJ has a mission to keep on endeavouring to contribute to a humanized law of nations, in the dehumanized world of our days.

• 29. In my aforementioned separate opinion appended to the ICJ’s Judgment on the case of Ahmadou Sadio Diallo (merits, of 30 November 2010), concerning the arbitrary detentions followed by expulsion of a foreigner from his country of residence, I devoted an entire Section (VI) to “The prohibition of arbitrariness in the [Page 58] international law of human rights” (paras. 107-42), wherein I examined the doctrinal development and the jurisprudential construction on the matter. I pondered, inter alia, that, as human rights treaties

  conform a law of protection (a droit de protection), oriented towards the safeguard of the ostensibly weaker party, the victim, it is not at [448] all surprising that the prohibition of arbitrariness (…) covers arrests and detentions, as well as other acts of the public power, such as expulsions.

  (ICJ Reports 2010 (II), p. 763, para. 109.)

• 30. Such has in fact been the understanding of international tribunals entrusted with the interpretation and application of human rights treaties, like the ICJ in the present case of the Application of the CERD Convention (Qatar v. United Arab Emirates). As I pointed out in that separate opinion in the case of Ahmadou Sadio Diallo, the case law of international human rights tribunals is quite clear in this respect. No one can be deprived of liberty in an arbitrary way (cf. e.g., ECtHR, case of Amuur v. France, judgment of 25 June 1996). No one can be detained or arrested, even when this is considered as “legal”, when it is incompatible with the provisions of human rights treaties and carried out with arbitrariness (e.g., IACtHR, case of the “Street Children” Villagrán Morales and Others v. Guatemala, merits, judgment of 19 November 1999; cases of Bámaca Velásquez and of Maritza Urrutia v. Guatemala, judgments of 25 November 2000 and 27 November 2003, respectively).

• 31. The prohibition of arbitrariness, I proceeded, stands not only in respect of the right to personal liberty, but also in relation to all other rights protected under human rights treaties,Footnote ¹³ so as to secure the prevalence of the rule of law (la prééminence du droit). Epistemologically, this is the correct posture in this respect, given the universally acknowledged interrelatedness and indivisibility of all human rights. Arbitrariness amounts, in effect, to an abus de pouvoir on the part of the State agents. Accordingly, a domestic law or an administrative act, concerning migrants or non-citizens, cannot be applied when incompatible with the provisions of human rights treaties.

• 32. And in that separate opinion, I concluded, on the extent of the prohibition of arbitrariness, that

  Human nature being what it is, everyone needs to guard protection against arbitrariness on the part of State authorities. In a wider horizon, human beings [Page 59] need protection ultimately against themselves, in their relations with each other. There is hardly any need to require an express provision to the effect of prohibiting arbitrariness in respect of distinct rights, or else to require the insertion of the adjective “arbitrary” in distinct provisions, in order to enable the exercise of protection against arbitrariness, in any circumstances, under human rights treaties. The letter together with the spirit of those provisions under human rights treaties, converge in pointing to the same direction: the [449] absolute prohibition of arbitrariness, under the international law of human rights as a whole. Underlying this whole matter is the imperative of access to justice lato sensu, the right to the law (le droit au droit, el derecho al derecho), the right to the realization of justice in a democratic society.

  (ICJ Reports 2010 (II), p. 777, para. 142.)

V. Arguments of the Parties in the public hearings before the Court

• 33. The prohibition of arbitrariness brings to the fore the issue of the vulnerability of those affected by discriminatory measures. Before examining this point (cf. Section VII, infra), may I now turn to the arguments of the Parties during the oral pleadings which have just taken place before the ICJ. In the course of the public hearings (first round) before the Court, the applicant State presented (on 27 June 2018) its own understanding of the factual context of the cas d’espèce within a temporal dimension.

• 34. Qatar argued that the “collective expulsion” of Qataris from the UAE as a discriminatory measure was ongoing, affecting continuously some of their rights under the CERD Convention (e.g., with the separation of families and loss of work); this was leading to the prolongation and indefinite durationFootnote ¹⁴ of harm or damage, in the human tragedyFootnote ¹⁵ of the numerous and vulnerable victims.Footnote ¹⁶ There was need for urgent regard to human suffering; the continuing vulnerability of segments of the population required urgently, in its view, provisional measures of protection.

• 35. In the following public hearings before the Court (still first round, on 28 June 2018), the respondent State did not address such issue of a continuing situation raised by Qatar; the UAE focused instead on other aspects, attempting to minimize and dismiss the Request for [Page 60] provisional measures of protection.Footnote ¹⁷ It consumed much of the time of those public hearings raising the point (responded by the applicant State—infra), inter alia, of the rule of exhaustion of local remedies.Footnote ¹⁸

• 36. In the second and last round of public hearings before the Court (on 29 June 2018) the local remedies rule continued to be addressed, this [450] time by both the applicant State, in response to the argument of the respondent State, and by this latter once again.Footnote ¹⁹ The applicant State, furthermore, consistently reiterated its understanding of a continuing situation of ongoing alleged violations of human rights requiring “humanitarian considerations”.Footnote ²⁰

VI. Questions put to the Parties in the public hearings before the Court

VII. The correct understanding of compromissory clauses under human rights conventions

• 62. I have dwelt upon this particular point in depth in my lengthy dissenting opinion in the earlier case on Application of the CERD [Page 68] Convention (Georgia v. Russian Federation) (Judgment of 1 April 2011), where the Court upheld the second preliminary objection and found itself without jurisdiction to examine the case. In my dissenting opinion (paras. 1-214), I warned at first that the punctum pruriens judicii was the proper understanding of the compromissory clause (Art. 22) of the CERD Convention, for which it is necessary to be attentive to the nature and substance of a human rights treaty like the CERD Convention.

• 63. Regrettably, in that Judgment of 2011, the Court’s majority set a very high threshold (as to the requirement of prior negotiations) for the exercise of jurisdiction on the basis of that human rights treaty, the CERD Convention, losing sight of the nature of this important UN human rights treaty, endowed with universality. It advanced the view that [458] Article 22 of the CERD Convention establishes “preconditions” to be fulfilled by a State Party before it may have recourse to this Court, thus rendering access to the ICJ particularly difficult. I added, in my dissenting opinion, that this was not in accordance with the Court’s (PCIJ and ICJ) own earlier jurisprudence constante, which had never ascribed to that factual element the character of a “precondition” that would have to be fully satisfied, for the exercise of its jurisdiction.Footnote ⁴³

• 64. It was necessary,—I proceeded,—to turn attention to the sufferings and needs of protection of the affected segments of the population; yet, the Court’s majority pursued unfortunately an essentially inter-State, and mostly bilateral, outlook, on the basis of allegedly unfulfilled “preconditions” of its own construction; instead of setting up a higher standard of protection, under the CERD Convention, of individuals in a continuing situation of great vulnerability, it applied, contrariwise, a higher standard of State consent for the exercise of its jurisdiction.

• 65. One cannot erect, in pursuance of a strictly textual or grammatical reasoning relating to the compromissory clause (Art. 22) of the CERD Convention, a mandatory “precondition” for the exercise of the Court’s jurisdiction (such as that of prior negotiations), as this amounts to erecting a groundless and most regrettable obstacle to justice. This “precondition”, I proceeded, finds no support in the Court’s own earlier jurisprudence constante, nor in the legislative history of the CERD Convention.

• [Page 69] 66. I then pointed out, in my aforementioned dissenting opinion, that, already at the time that the CERD Convention was being elaborated there were those who supported the compulsory settlement of disputes by the Court. Underlying the general rule of treaty interpretation is the principle ut res magis valeat quam pereat (the so-called effet utile), of much importance in respect of human rights treaties, amongst which the CERD Convention. This latter is a pioneering human rights convention, endowed with universality, occupying a prominent place in the law of the United Nations itself. It cannot be a hostage of State consent or discretion (as in the entirely distinct domain of diplomatic protection), in its interpretation and application.

• 67. Before moving to the next point, may I here add that all obligations under the CERD Convention (including those of providing redress by means of effective local remedies, and of dispute-settlement in inter-State cases thereunder) have a rationale of their own, proper of human rights treaties. There was awareness of that since the time of the travaux [459] préparatoires of the CERD Convention,Footnote ⁴⁴ so as to secure its effectiveness, and safeguard it from attempts at conceptual deconstruction (such as the devising of additional so-called “preconditions”).Footnote ⁴⁵

VIII. Vulnerability of segments of the population

• 68. In the present Order that the ICJ has just adopted today, in the case of Application of the CERD Convention (Qatar v. United Arab Emirates), the Court has correctly granted provisional measures of protection under the CERD Convention, to ensure that families including a Qatari, separated by the measures adopted by the UAE on 5 June 2017, are reunited; that Qatari students, affected by the same measures, complete their education in the UAE, or, if they wish, obtain their educational records to continue their studies elsewhere; and that [Page 70] Qataris, affected by the same measures, have access to national tribunals in the UAE. The CERD Convention itself determines that States Parties are to assure to everyone within their jurisdiction “effective protection and remedies” before national tribunals against any acts of discrimination (Art. 6). The provisional measures, as requested in the cas d’espèce, become necessary for the protection of persons in a situation of vulnerability.

• 69. I have already addressed the principle of non-discrimination and the prohibition of arbitrariness (Section III, supra), and my reflections thereon lead me to the next related point to be here considered. Cases as the present one of Application of the CERD Convention (Qatar v. United Arab Emirates), like the aforementioned previous cases before the ICJ also under the CERD Convention (as well as under other human rights treaties), disclose the centrality of the position of the human person in the overcoming of the inter-State paradigm in contemporary international law. The Request of provisional measures of protection is here intended to put an end to the alleged vulnerability of the affected persons (potential victims).

• 70. Human beings in vulnerability are the ultimate beneficiaries of compliance with the ordered provisional measures of protection. However vulnerable, they are subjects of international law. We are here before the new paradigm of the humanized international law, the new jus gentium of our times, sensitive and attentive to the needs of protection of the [460] human person in any circumstances of vulnerability. This is a point which I have been making in successive individual opinions in previous decisions of the ICJ; I feel it sufficient only to refer to them now, with no need to extend further thereon in the present separate opinion.

• 71. To summarize, in my previous separate opinion appended to the ICJ’s recent Order (of 19 April 2017) on provisional measures of protection—also under the CERD Convention—in the case of Ukraine v. Russian Federation, I pondered:

  As I have been sustaining along the years, time and time again, provisional measures of protection have an autonomous legal regime of their own. This being so, it is clear to me that human vulnerability is a test even more compelling than “plausibility” of rights for the indication or ordering of provisional measures of protection. In so acknowledging and sustaining, one is contributing to the ongoing historical process of humanization of contemporary international law.

  (ICJ Reports 2017, p. 171, para. 44.)

• 72. Anticipatory in nature, provisional measures of protection are intended to prevent and avoid irreparable harm in situations of gravity [Page 71] (probability of irreparable harm) and urgency. The extreme vulnerability of the affected persons is an aggravating circumstance, rendering such provisional measures imperative. These latter, in my perception, are not “mesures conservatoires” (as in traditional, old-fashioned and unsatisfactory language), as they do require change, as in the cas d’espèce, so as to put an end to a continuing situation (cf. infra) affecting the rights of persons in utter vulnerability, if not defencelessness.

• 73. For years I have been sustaining that provisional measures of protection, needed by human beings (under human rights treaties, like the CERD Convention in the cas d’espèce), may become even more than precautionary, being in effect tutelary, particularly for vulnerable persons (potential victims), and directly related to realization of justice itself. Obligations emanating from such ordered measures are not necessarily the same as those ensuing from a Judgment as to the merits (and reparations), they may be entirely distinct (cf. infra). Particularly attentive to human beings in situations of vulnerability, provisional measures of protection, endowed with a tutelary character, appear as true jurisdictional guarantees with a preventive dimension.

IX. Towards the consolidation of the autonomous legal regime of provisional measures of protection

• 74. This is one of the aspects, and a significant one, of what I have been calling,—in several (more than twenty) of my individual opinions, [461] successively within two international jurisdictions, in the period 2000-2018,Footnote ⁴⁶ the needed conformation of the autonomous legal regime of provisional measures of protection.Footnote ⁴⁷ As I pointed out in my dissenting opinion in an ICJ Order (of 16 July 2013), at an early stage of the handling of two merged cases opposing two Central American States, even “the notion of victim (or of potential victimFootnote ⁴⁸ ), or injured [Page 72] party, can (…) emerge also in the context proper to provisional measures of protection, parallel to the merits (and reparations) of the cas d’espèce”Footnote ⁴⁹ (ICJ Reports 2013, p. 269, para. 75).

• 75. I am confident that we are at last moving towards the consolidation of the autonomous legal regime of provisional measures of protection, thus enhancing the preventive dimension of international law. After all, contemporary international tribunals have an important contribution to give to the avoidance or prevention of irreparable harm in situations of urgency, to the ultimate benefit of human beings, and to secure due compliance with the ordered provisional measures of protection.Footnote ⁵⁰

• [462] 76. The component elements of this autonomous legal regime are: the rights to be protected; the corresponding obligations; the prompt determination of responsibility (in case of non-compliance), with its legal consequences, encompassing the duty of reparation for damages. Rights and obligations concerning provisional measures of protection are not the same as those pertaining to the merits of the cases, and the configuration of responsibility with all its legal consequences is prompt, without waiting for the decision on the merits. The notion of victim (or potential victim) itself—may I stress this point—marks presence already at this stage, irrespective of the decision as to the merits (cf. supra).

• 77. Provisional measures have, in recent years, been protecting growing numbers of persons in situations of vulnerability, transformed into a true jurisdictional guarantee of preventive character.Footnote ⁵¹ Hence the [Page 73] autonomy of the international responsibility that non-compliance with them promptly generates. A study of the matter encompasses the general principles of law, always of great relevance.Footnote ⁵² Attention is to be focused on the common mission of contemporary international tribunals of realization of justiceFootnote ⁵³ as from an essentially humanist outlook.Footnote ⁵⁴

X. International law and the temporal dimension

• 78. A consideration of the aforementioned preventive dimension, furthermore, brings to the fore the time factor, and in particular the relationship [463] between international law and the temporal dimension. Such relationship is an ineluctable one, requiring far more attention than the one dispensed to it by international legal doctrine so far. In effect, the temporal dimension underlies the whole domain of international law, being interpreted and applied within time.

• 79. It ineluctably encompasses provisional measures of protection. In my dissenting opinion appended to the ICJ’s Order of 28 May 2009 in the case of the Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), I warned inter alia that “[i]t is imperative to reduce or bridge the décalage between the time of victimized human beings and the time of human justice” (ICJ Reports 2009, p. 183, para. 49). Subsequently, I devote the whole of my separate opinion (ICJ Reports 2011 (II), p. 566-607, paras. 1-117) appended to the ICJ’s Order of 18 July 2011 in the case of the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand) to distinct [Page 74] aspects of the temporal dimension in international law and its incidence on the granting of provisional measures of protection.Footnote ⁵⁵

• 80. After all, it is in the nature of law to accompany the regulatory function in society undergoing changes, contrary to what legal positivists assume in their static view of the legal order. The evolution of international law—acknowledged by the ICJ in an obiter dictum of its célèbre Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (of 21 June 1971, para. 53)—responds to the changing needs of all subjects of international law (including individuals) and of the international community as a whole.

• 81. The evolving international law is permeated by a major enigma, which, for its part, also permeates the existence of all subjects of law (including individuals): the passage of time. International law, emerging ultimately from human conscience, the universal juridical conscience, also has a protective function endowed with a preventive dimension, as illustrated by the significant expansion of provisional measures of protection in recent years.Footnote ⁵⁶ Keeping the passage of time in mind, it is important to prevent or avoid harm that may occur in the future (hence the acknowledgment of potential or prospective victims), as well as to put an end to continuing situations already affecting individual rights. Past, present and future come and go together.

[464] XI. Provisional measures of protection in continuing situations

1. 82. In the present case of Application of the CERD Convention (Qatar v. United Arab Emirates), at this stage of request of provisional measures of protection, there are some other considerations that I deem it fit to present, in this separate opinion, with regard to the alleged continuing situation in breach of human rights, in addition to those I have already made (cf. Section VI(3) supra). Even if the evidence already presented to the ICJ so far may appear insufficient, there are [Page 75] sources of it that may be regarded relevant to the consideration of such a continuing situation at this stage.

2. 83. In this respect, for example, the Report of the United Nations Office of the High Commissioner for Human Rights (OHCHR) of December 2017,Footnote ⁵⁷ brought to the attention of the ICJ in the present proceedings, gave an account of a continuing situation (an “ongoing crisis on human rights”, with “continuing implications”, and “cases of temporary or potentially durable separation of families”, among other “long-standing human rights issues”, to the detriment, e.g., of “migrant workers”).Footnote ⁵⁸

3. 84. The OHCHR, having decided to monitor in loco the consequences on human rights of the UAE’s decision or announcement of 5 June 2017, reported, one semester later, on the suspension and “considerable restrictions” on freedom of movement “to and from Qatar” (paras. 23 and 26), with “continuing implications to date”; such restrictions disrupted family life, affected the right to education, as Qatari students were prevented from pursuing their studies where they were (paras. 26 and 50). The aforementioned OHCHR Report (of December 2017) referred to “cases of temporary or potentially durable separation of families”, with all their consequences (para. 32).

4. 85. There was also an impact on the right to health, with humanitarian consequences (para. 43), as some people had to travel abroad to receive their medical treatment or to undergo surgery (para. 44). As to the restrictions on freedom of expression, the OHCHR reported that the unilateral measures have been accompanied by a “widespread defamation and hatred campaign against Qatar and Qataris in various media” (paras. 14 and 19). The Report, furthermore, addressed another long-standing human rights issue, affecting the rights of migrant workers and non-citizens [465] (paras. 54-8). The Report at last considered the restrictive unilateral measures as arbitrary (para. 60).

5. 86. Likewise, a Joint Communication from the UN Special Procedures Mandate Holders of the UN Human Rights Council to the UAE,Footnote ⁵⁹ of 18 August 2017, the Special Rapporteurs warned that [Page 76] the decision announced by the UAE on 5 June 2017 “has threatened the most vulnerable groups, including women, children, persons with disabilities and older persons” (p. 1). It has, furthermore, it continued, led to the separation of families, the interruption of studies in schools or universities, and has also affected the right to health (pp. 2‑3 and 5), among others. The Special Rapporteurs then drew attention to “the urgency of the matter” and the “extreme gravity” of the situation, and urged that “all necessary interim measures be taken to halt the alleged violations and prevent their reoccurrence” (p. 7).

6. 87. Among other reports referred to in the course of the present proceedings before the ICJ, were those of non-governmental organizations (NGOs) with much experience at international level, such as, inter alia, Amnesty International and Human Rights Watch. In its very recent Report (of 5 June 2018), Amnesty International referred to the situation of continuity harming separated families, and individuals (among whom migrant workers, children and students).Footnote ⁶⁰ Accordingly, it called upon the States concernedFootnote ⁶¹ to “immediately lift all arbitrary restrictions” imposed on Qatari nationals, and to respect human rights.Footnote ⁶²

7. 88. For its part, Human Rights Watch, in its earlier Report (of 12 July 2017), likewise warned against “human rights violations” in the separation of families, the deprivation of migrant workers, the discrimination against women, the interruption of medical treatment, and the interruption of education.Footnote ⁶³ Both Human Rights Watch and Amnesty International [466] have provided accounts, in their respective reports, of information obtained from interviews with those victimized in loco.

8. 89. In effect, the continuing situation in breach of human rights is a point which has had an incidence in other cases before the ICJ as well, at distinct stages of the proceedings. May I briefly recall here three examples, along the last decade. In the case concerning the Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), as the ICJ in its Order of 28 May 2009 decided not to indicate [Page 77] provisional measures, I appended thereto a dissenting opinion, wherein—as already pointed out (para. 79, supra)—I drew attention to the décalage to be bridged between the time of human beings and the time of human justice (paras. 35-64).

9. 90. Urgency and probability of irreparable damage, I proceeded, were quite clear, in the continuing situation of lack of access to justice of the victims of the Hissène Habré regime (1982-1990) in Chad. This right of access to justice assumed a “paramount importance” (paras. 29 and 74-7), I added, in the cas d’espèce, under the UN Convention against Torture; furthermore, I dwelt upon the component elements of the autonomous legal regime of provisional measures of protection (paras. 8-14, 26-9 and 65-73). Such measures were necessary for the safeguard of the right to the realization of justice (paras. 78-96 and 101).

10. 91. In the case on Jurisdictional Immunities of the State (Germany v. Italy), as the ICJ, in its Order of 6 July 2010 found the counter-claim of Italy inadmissible, once again I appended thereto a dissenting opinion, wherein I examined at depth the notion of “continuing situation” in the factual context of the cas d’espèce, as debated between the contending Parties (paras. 55-9 and 92-100). My dissenting opinion encompassed the origins of a “continuing situation” in international legal doctrine (paras. 60-4); the configuration of a “continuing situation” in international litigation and case law (paras. 65-83); the configuration of a “continuing situation” in international legal conceptualization at normative level (paras. 84-91).

11. 92. And, once again, I warned against the pitfalls of State voluntarism (paras. 101-23). Suffice it here only to refer to my lengthy reflections on the notion of “continuing situation” in the case on Jurisdictional Immunities of the State (Germany v. Italy), as I see no need to reiterate them expressis verbis herein. What cannot pass unnoticed is that a continuing situation in breach of human rights has had an incidence at distinct stages of the proceedings before the ICJ: in addition to decisions—as just seen—on provisional measures and counter-claim (supra), it has also been addressed in decision as to the merits.

12. 93. This is illustrated by the aforementioned case of Ahmadou Sadio Diallo ((Republic of Guinea v. Democratic Republic of the Congo), merits, [467] judgment of 30 November 2010). Its factual context disclosed a continuing situation of breaches of Mr Ahmadou Sadio Diallo’s individual rights in the period extending from 1988 to 1996. The griefs suffered by the victim extended in time (the arrests and detentions of 1988-1989 followed by those of 1995-1996, prior to his expulsion [Page 78] from the country of residence), in breach of the relevant provisions of human rights treaties (the UN Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights) as well as Article 36(1)(b) of the Vienna Convention on Consular Relations. His griefs were surrounded by arbitrariness on the part of State authorities,Footnote ⁶⁴ and amounted to a wrongful continuing situation, marked by the prolonged lack of access to justice.

XII. Epilogue: A Recapitulation

• 94. This is, as seen, the third case under the CERD Convention in which provisional measures of protection have been rightly ordered by the ICJ, in this new era of its international adjudication of human rights cases. The fact that a case is an inter-State one, characteristic of the contentieux before the ICJ, does not mean that the Court is to reason likewise on a strictly inter-State basis. Not at all. It is the nature of a case that will call for a reasoning, so as to reach a solution. The present case of Application of the CERD Convention (Qatar v. United Arab Emirates) concerns the rights protected thereunder, which are the rights of human beings, and not rights of States.

• 95. This has a direct bearing on the consideration of a request for provisional measures of protection under a human rights convention. Provisional measures, with a preventive dimension, have been undergoing a significant evolution, moving further towards the consolidation of the autonomous legal regime of their own, to the benefit of the titulaires of rights. In another endeavour to keep paving this path, may I, last but not least, proceed to a brief recapitulation of the main points I deemed it fit to make, particularly in respect of such provisional measures, under the CERD Convention, in the course of the present separate opinion.

• [468] 96. Primus: The principle of equality and non-discrimination lies in the foundations of the rights protected under the CERD Convention also by means of provisional measures. The historical formation of the corpus juris of international protection of human rights [Page 79] has much contributed to a growing awareness of the importance of the prevalence of the basic principle of equality and non-discrimination. Secundus: The work of UN supervisory organs—among which the CERD Committee—bears witness of such growing awareness.

• 97. Tertius: It is necessary nowadays that the advances in respect of the basic principle of equality and non-discrimination, at normative and jurisprudential levels, are also accompanied by the international legal doctrine, which so far has not dedicated sufficient attention to that fundamental principle. Quartus: The protection sought under the CERD Convention is also against arbitrariness, as in the cas d’espèce. This point has not escaped the attention of other international tribunals, entrusted with the interpretation and application of distinct human rights conventions.

• 98. Quintus: Human rights treaties, including the CERD Convention, conform a law of protection (a droit de protection), oriented towards the safeguard of the ostensibly weaker party (the real or potential victim), and the prohibition of arbitrary measures, so as also to secure the prevalence of the rule of law (la prééminence du droit). Sextus: As to the points discussed in the present proceedings of the cas d’espèce, there are two of them that require clarification: the rationale of the local remedies rule in the international protection of human rights, and the implications of a continuing situation affecting or breaching human rights.

• 99. Septimus: The local remedies rule, as a condition of admissibility of international claims, cannot be invoked as a “precondition” for the consideration of urgent requests of provisional measures of protection. Octavus: The rationale of the local remedies rule in human rights protection is entirely distinct from that of its application in the practice of diplomatic protection of nationals abroad: in human rights protection the rule is focused on effectiveness of local remedies and redress, while in diplomatic protection it is focused on the process of exhaustion of such remedies.

• 100. Nonus: The CERD Committee itself has underlined the components of effectiveness of local remedies and redress. Human rights protection is victim-oriented, it is a law of protection of the weaker party (droit de protection), as upheld by international human rights tribunals; discretionary diplomatic protection, for its part, remains State-oriented. Decimus: There is no ground for attempting to add, to the so-called “plausibility” of rights, the so-called “plausibility” of admissibility, as an additional “precondition” for provisional measures of protection.

• [469] 101. Undecimus: In a continuing situation, the rights requiring protection are clearly known, there being no sense to wonder whether [Page 80] they are “plausible”. Duodecimus: The proper understanding of compromissory clauses under human rights conventions is necessarily attentive to the nature and substance of those conventions, as well as to their object and purpose; such clauses cannot be interpreted attempting to find “preconditions”, rendering access to justice under human rights conventions particularly difficult.

• 102. Tertius decimus: The aforementioned prohibition of arbitrariness brings to the fore the issue of the vulnerability of those affected by discriminatory measures; requests of provisional measures of protection, in cases like the present, are intended to put an end to a continuing situation of vulnerability of the affected persons (potential victims). Quartus decimus: Human vulnerability is a test more compelling than so-called “plausibility” of rights for the ordering of provisional measures of protection under human rights treaties.

• 103. Quintus decimus: There has been an advance towards the consolidation of what I have been calling, along the years, the autonomous legal regime of provisional measures of protection. Sextus decimus: Provisional measures of protection have, in recent years, been protecting growing numbers of persons in situations of vulnerability; they have thus been transformed into a true jurisdictional guarantee of preventive character. Septimus decimus: Such preventive character brings to the fore the temporal dimension in the application of the provisional measures of protection, e.g., when they are intended, as in the present case, to put an end to a continuing situation affecting individual rights.

• 104. Duodevicesimus: In respect of the present case, there have been UN reports and other documents giving accounts of a continuing situation affecting human rights under the CERD Convention. Undevicesimus: The continuing situation in breach of human rights is a point which has had an incidence in earlier cases before the ICJ as well, at distinct stages of the proceedings. Vicesimus: The determination and ordering of provisional measures of protection under human rights conventions can only be properly undertaken from a humanist perspective, necessarily avoiding the pitfalls of an outdated and impertinent State voluntarism.

Introduction

• 1. To my great regret, I voted against the operative part of today’s Order indicating provisional measures. I would therefore like to explain [Page 94] in particular why, in my view, the Request in question does not satisfy the requirement of imminent risk of irreparable prejudice and why this Order is not necessary for the settlement of the dispute.

I. The present proceedings must not prejudge the question on the merits

• 2. In provisional measures proceedings, the applicant must not prejudge the question on the merits (A). Nor should the request for the indication of provisional measures itself prejudge the question relating to the merits (B).

II. The existence of irreparable prejudice

• 13. In light of its jurisprudence, the Court should have found that there was no imminent risk of irreparable prejudice in this case.

• 14. According to the Court’s jurisprudence,

  the power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute before the Court gives its final decision

  (see, for example, Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May 2017, ICJ Reports 2017, p. 243, para. 50).

• 15. Regarding the rights referred to in the Convention, the Court has noted, in particular, that the political, civil, economic, social and cultural rights mentioned in Article 5, paragraphs (b), (c), (d) and (e), of the Convention are of such a nature that prejudice to them is capable of causing irreparable harm (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, ICJ Reports 2017, p. 138, para. 96; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, ICJ Reports 2008, p. 396, para. 142).

• [489] 16. On another occasion, the Court found that there was a real risk of irreparable prejudice to the right in question if it were “not … possible to restore the situation to the status quo ante” (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, ICJ Reports 2016 (II), p. 1169, para. 90).

• 17. I am inclined to think that, even if the underlying facts were duly established, the following rights in respect of which Qatar has sought provisional measures are not of such a nature that prejudice to them is capable of causing irreparable harm.

• [Page 98] 18. As regards the right not to be subject to racial discrimination (Arts. 2 and 4) and the right to freedom of opinion and expression (Art. 5(d)(viii)), the status quo ante, in which Qatari nationals residing in the UAE were not the subject of hatred, and “sympathy” towards Qataris was not a crime, can, at least in theory, be restored. It is also noted that the Respondent contests this claim, contending that “[t]he statement of the Attorney General is … not a law” (CR 2018/13, p. 65, para. 35 (Shaw)).

• 19. Concerning the right to work (Art. 5(e)(i)) and the right to own property (Art. 5(d)(v)), the status quo ante, in which Qatari nationals residing in the UAE could work and enjoy their property, can, theoretically, be restored, if the measure prohibiting Qataris entry to the UAE is lifted.

• 20. With respect to the right to equal treatment before tribunals (Art. 5(a)) and the right to effective protection and remedies (Art. 6), while their absence may cause prejudice to other rights capable of causing irreparable harm, the right of Qatari nationals in the UAE to effective protection and remedies through UAE courts can, as such, theoretically be restored.

• 21. However, the Court has found today that prejudice to those rights before tribunals, as well as to the right to family and the right to education and training, may be irreparable (paragraph 69 of the Order). I do not agree with this finding; moreover, the Court’s reasoning fails to consider whether such prejudice, even if it were irreparable, is “imminent”.

III. Imminent risk

• 22. It goes without saying that the irreparable nature of the prejudice caused to these rights is not on a par with the harm caused by the execution of the death penalty or the performance of a nuclear test. Furthermore, examining the other aspect of the third condition for the indication of provisional measures may lead the Court to conclude that the alleged risk is not imminent.

• 23. With regard to the lives of UAE-Qatari mixed families, although the long-term separation of a family may have an irreparable effect on its [490] unity and integrity, that effect is unlikely to become permanent in the few years before the Court renders its final decision. In other words, it can be concluded that the risk of prejudice to this right, even if it were irreparable, is not imminent.

• 24. As regards the right to education and training, it is to be noted that the Respondent has presented evidence that the Emirati authorities [Page 99] have asked all post-secondary institutions in the UAE to monitor the situation of Qatari students (CR 2018/13, p. 69, para. 51 (Shaw)). Since the UAE authorities have taken measures to remedy the situation, it may be concluded or at least presumed that, even if it existed, the risk of irreparable prejudice to students is not imminent.

• 25. Lastly, regarding the right to public health and medical care (Art. 5(e)(iv)), the evidence adduced by Qatar (OHCHR Technical Mission Report, Annex 16 to the Application, paras. 43-4) shows that patients who were forced to leave the UAE subsequently received medical treatment in other countries, such as Germany, Turkey and Kuwait. Although some inconvenience may have been caused to those patients, this account suggests that, even if it existed, the risk of irreparable prejudice to them is not imminent.

IV. The Order is unnecessary

TABLE OF CONTENTS

• Chronology of the procedure 1-14

• I. Prima facie jurisdiction 15-16

• II. The provisional measures requested by the UAE 17-29

• III. Conclusion 30-1

• Operative clause 32

I. “Prima facie jurisdiction”

• 3. The question of “prima facie jurisdiction” is dealt with briefly in paragraphs 15 and 16 of the Order. Having recalled that it may indicate provisional measures only if there is, prima facie, a basis of jurisdiction enabling it to entertain the merits of the case, and having noted that this is so whether the request for provisional measures is made by the applicant or by the respondent in the principal proceedings (Order, para. 15), the Court refers to its Order of 23 July 2018 on the Request submitted by Qatar in the same case, in which it concluded that it had such “prima facie jurisdiction”, and adds that it “sees no reason to revisit its previous finding in the context of the present Request” (ibid., para. 16).

• 4. I believe that, in expressing itself thus, the Court has said either too much or too little.

• 5. It could have said less. Indeed, in my opinion, the Court did not have to address the question of “prima facie jurisdiction” in the context [379] of the present Order, in so far as it found in the ensuing paragraphs that some or all of the other conditions required to order the measures requested were not met. When there are cumulative conditions for a request to be upheld, it is sufficient for one of them not to be met to make it unnecessary to examine the others. In this instance, since the UAE failed to demonstrate the existence of plausible rights that would have called for provisional protection in the form of the first two measures requested, and since, for the reasons set out in the Order, the third and fourth measures had to be rejected in consequence, there was no need to determine whether or not the other conditions to which the indication of provisional measures is subject, including “prima facie jurisdiction”, were satisfied (no inference is drawn in the Order from the fact that this particular condition is met in this instance, since, in its operative part, the Order rejects the measures requested in the same terms that it would have used in any event).

• 6. But perhaps it is necessary here to clear up a confusion which is rather easily made.

• [Page 117] 7. It is clear that a court may rule on a request (to uphold or reject it) only if it has a title of jurisdiction enabling it to entertain that request. The Court has often recalled that it must always satisfy itself that it has jurisdiction, if necessary proprio motu, before undertaking any examination of the merits of a request. It must therefore have jurisdiction to rule on a request for provisional measures, in order to be able to decide whether or not the request meets the conditions allowing it to be upheld.

• 8. But it would be wrong to confuse this question with that of “prima facie jurisdiction”. In the jurisprudence of the Court, the latter concept is used not to determine whether the Court has jurisdiction to entertain a request for provisional measures, but to ascertain whether it has jurisdiction to entertain the principal proceedings: it is necessary and sufficient for the Court to have prima facie jurisdiction for that purpose, and, in this regard, it will refer to the basis (or bases) of jurisdiction invoked in support of the principal claim.

• 9. The Court’s jurisdiction to entertain a request for provisional measures, for its part, does not derive from the jurisdictional basis invoked in the proceedings on the merits (in the present case, Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)). It is based directly on Article 41 of the Court’s Statute, which gives the Court the power, when seised of a case, to indicate any provisional measures which ought to be implemented to preserve the rights of either party.

  This basis of jurisdiction is entirely independent of that relied on, by the applicant or by both parties, in the context of the principal proceedings.

• 10. What, then, is the raison d’être of the concept of “prima facie jurisdiction”? It is not intended to found the Court’s jurisdiction to rule on a [380] request for provisional measures (for which Article 41 of the Statute is sufficient). Rather, it is one of the cumulative conditions that must be met for a provisional measure to be indicated (a condition which is all the more essential since, the provisional measures indicated by the Court being binding on the States to which they are addressed, it would be inconceivable for the Court to impose obligations on them if its jurisdiction to entertain the principal proceedings was not to some extent likely to be established).

  As the Court consistently states in its orders (and as it states here in paragraph 15 of the present Order), prima facie jurisdiction to entertain the merits of the case is a necessary condition for the Court to be able to indicate provisional measures (and not for the Court to be able to entertain a request for provisional measures).

• [Page 118] 11. Thus, if “prima facie jurisdiction” is regarded as one of the cumulative conditions necessary for the indication of a provisional measure (and not as the condition for the Court’s jurisdiction to rule on a request for provisional measures), the logical conclusion is as follows: for such a measure to be ordered, the Court must establish that all the conditions—including, first of all, the one relating to “prima facie jurisdiction”—are satisfied; however, for a measure that has been requested to be rejected, it is sufficient that one of the conditions (for example, the risk of irreparable harm to a plausible right) is not met for the Court to be dispensed from ruling on the others (including the one relating to “prima facie jurisdiction”). The Court could have taken this approach in this instance.

• 12. That being said, there is no bar on the Court including legally superfluous reasoning in its decisions. One can understand the judicial policy reasons for which the Court, in its orders on requests for provisional measures, has made a habit of ruling first, and in all instances, on the question of “prima facie jurisdiction”, both when it decides to indicate such measures (in which case it is required to establish prima facie jurisdiction) and when it decides to reject the request outright on another ground (in which case it could dispense with ruling on this question).

• 13. The Court chose here, in keeping with its usual practice, to note that the condition relating to “prima facie jurisdiction” is met, even though the Order subsequently finds that other indispensable conditions are not.

• 14. I would have nothing to say on the matter if I did not find the reasoning the Court gives in paragraph 16 of its Order somewhat brief.

• 15. Referring to its Order of 23 July 2018 in the same case, the Court recalls that, on that occasion, it concluded that it had prima facie jurisdiction to entertain the case (that is, the proceedings instituted by Qatar against the UAE) on the basis of Article 22 of CERD, and adds that it “sees no reason to revisit its previous finding in the context of the present Request” (paragraph 16 of the Order).

• [381] 16. In my view, not only did the Court have no reason to revisit its previous finding, it had an excellent reason not to call it into question.

• 17. In its 2018 Order, the Court ordered the UAE to implement certain provisional measures at Qatar’s request (and with a view to protecting the latter’s rights). In reaching this decision, it found (as it was required to do) that it had prima facie jurisdiction to entertain the case on the merits. It is difficult to see how the Court, when later seised of a request for provisional measures from the other Party, could have [Page 119] reconsidered its previous position, reversed it, and consequently rejected the UAE’s request. Not only would such an approach hardly have been compatible with the consistency and continuity expected of the Court in the exercise of its judicial function (even if it is not legally bound to follow its precedents, and especially its orders indicating provisional measures, which are not res judicata), but, above all, it would have seriously conflicted with the rules of procedural fairness and the principle of equality between the parties to proceedings. A decision rejecting the measures requested by the UAE on the ground that the Court lacked prima facie jurisdiction to entertain the principal proceedings, while the measures ordered in 2018 in Qatar’s favour on the basis of the opposite position would have remained in force, would have been unacceptable in terms of judicial fairness.

• 18. Of course, the Court was in no way tempted to take this approach (especially since, at this stage, neither Party was arguing a lack of prima facie jurisdiction). But I find it regrettable that the standard reasoning set out in paragraph 16 of the Order does not make it sufficiently clear that, in the present case, the Court really had no room for choice: it could only conform to what it had ruled one year earlier; even if it had seen a “reason to revisit its previous finding”, it would not have been able to take it into account.

II. The reasons for rejecting the first two provisional measures requested by the UAE

• 19. The first provisional measure requested sought to have the Court order Qatar to withdraw its Communication to the Committee on the Elimination of Racial Discrimination (the CERD Committee), which concerns the same facts as those submitted to the Court. According to the UAE, the existence of these parallel proceedings (before the Committee) placed it at a disadvantage in the proceedings before the Court and violated its rights to procedural fairness and to a proper administration of justice.

  The second provisional measure sought to have the Court order Qatar to unblock Qatari citizens’ access to the website set up by the UAE, in [382] execution of the Court’s 2018 Order, in order to enable some of those citizens to apply for a permit to return to the UAE. According to the UAE, Qatar, by its conduct, is compromising the UAE’s ability to implement the provisional measures ordered by the Court one year ago.

• 20. The Court rejects both these requested measures by way of similarly worded reasoning: “the first measure requested … does not [Page 120] concern a plausible right under CERD” (paragraph 25 of the Order); “the second measure requested … does not concern plausible rights of the UAE under CERD which require protection pending the final decision …” (Order, para. 26).

  These formulations echo that used by the Court in paragraph 18 of the Order, where it sets out, in general terms, the conditions that had to be met in order for the measures requested by the UAE to be upheld:

  the Court … need[s] … [to] decide whether the rights claimed by the UAE, and for which it is seeking protection, are plausible rights, taking account of the basis of the Court’s prima facie jurisdiction in the present proceedings … Thus, these alleged rights must have a sufficient link with the subject of the proceedings before the Court on the merits of the case … .

• 21. Taken literally, these formulations seem to exclude the possibility of provisional measures proceedings being instituted by a party with a view to obtaining provisional protection for its procedural rights during the judicial process itself. They appear to limit the provisional measures that the Court may order to those aimed at provisional protection of the rights which the parties assert—or may plausibly assert—in the proceedings on the merits, that is to say, the rights which the parties hold—or may plausibly claim to hold—under the legal instrument that forms the basis of the Court’s jurisdiction and determines the substantive law applicable to the merits of the case (if that instrument is a treaty, as it is here).

• 22. That would be a particularly restrictive definition of the purpose of provisional measures proceedings, which would have no foundation in either the Court’s Statute or its jurisprudence (although I admit there is some ambiguity regarding this latter point).

• 23. The Statute gives the Court “the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party” (Art. 41, para. 1). There is nothing in either the letter or the spirit of the text to suggest that “the respective rights of either party” referred to here (“droit de chacun” in the French version) should be understood to mean only the rights at issue on the merits of the case (those which form the subject-matter [383] of the dispute), to the exclusion of each party’s procedural rights during the judicial process before the Court.

• 24. It is true that, in practice, when a party asks the Court to indicate provisional measures, it is usually to protect the rights it claims in the principal proceedings, on the basis of the substantive law that the Court is to apply in settling the dispute. That is why the Court, always [Page 121] bearing in mind the case at hand, generally uses the formulation adopted in the present Order (or one that is similar): the rights claimed, for which provisional protection is sought, must be plausible, taking account of the basis of the Court’s prima facie jurisdiction, that is to say that they must have a sufficient link with the subject-matter of the proceedings before the Court on the merits of the case.

• 25. However, this is not a convincing reason to exclude, on principle, provisional measures aimed at protecting other types of rights: the right to procedural fairness, the right to equality of arms or the right to sound administration of justice, which may also—albeit exceptionally—be affected by one party’s conduct towards another. It is true that, in some instances, situations in which such rights are at risk of being irreparably harmed, to a party’s detriment, could be adequately dealt with by the Court, if necessary proprio motu, on the basis of its general power as to the conduct of a case. However, this is not sufficient to exclude the option of recourse to provisional measures available, under Article 41 of the Statute, to protect the “respective rights of either party”. This is especially so given that, while it is readily conceivable that the Court has the necessary powers, without having recourse to provisional measures, to counter, if necessary, conduct by a party which has allegedly harmed the other party’s procedural rights during the judicial process, the same cannot be said where such harm results from a party’s extrajudicial conduct, that is, an act external to the judicial process itself. In that case, recourse to provisional measures proceedings is the only effective means by which the other party may protect its rights. Would such a case be so rare in practice as to be all but hypothetical? It should be reserved all the same.

• 26. In his declaration appended to the Order of 23 January 2007 on a request for provisional measures submitted by the respondent in the case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), my distinguished colleague Judge Buergenthal already clearly demonstrated that there were two types of provisional measures: those which derive from an “urgent need … because of the risk of irreparable prejudice or harm to the rights that are the subject of the dispute over which the Court has prima facie jurisdiction” (Provisional Measures, Order of 23 January 2007, ICJ Reports 2007 (I), p. 21, para. 3), and those which aim to “prevent a party to a dispute before it from interfering with or obstructing the judicial proceedings by coercive extrajudicial means, unrelated to the specific [384] rights in dispute, that seek or are calculated to undermine the orderly administration of justice in a pending case” (ICJ Reports 2007 (I), pp. 22-3, para. 6).

  I can but refer the reader to my predecessor’s demonstration.

• [Page 122] 27. To return to the present case, I am of the view that although the first two measures requested by the UAE had to be rejected, it is not because the rights which the requested measures sought to protect were not plausible “under CERD”. It is true that these alleged rights—the right to procedural fairness and the right not to suffer any interference with the implementation of a provisional measure ordered by the Court—do not, in the UAE’s case, derive from CERD itself (not, in any event, from its substantive provisions): these are rights—the first, certain, but the second, questionable—that the State would have in its capacity as a party to the judicial proceedings on the basis of the Statute, not the provisions of the treaty with which compliance constitutes the subject-matter of the dispute. However, in my opinion, this is not the right reason for rejecting the measures requested.

• 28. These measures had to be rejected—and I fully agree with the Court in having done so—because the UAE’s procedural rights in the judicial proceedings pending before the Court are clearly not exposed to any risk of irreparable harm as a result of Qatar’s alleged conduct.

  For one thing, I fail to see how the existence of parallel proceedings before the CERD Committee would risk breaching procedural fairness and equality of arms between the Parties before the Court.

  For another, assuming that Qatar is preventing the UAE from implementing a provisional measure ordered by the Court in the interest of Qatar and its citizens, the Respondent would have to demonstrate this at a later stage of the proceedings, if the Court were seised of a request from Qatar seeking a finding that the measure in question had not been completely and effectively implemented. Until then, the UAE’s procedural rights are fully protected.

[386] I. Prolegomena

• 1. In the handling of the present case of the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) (hereinafter Application of the CERD Convention), the International Court of Justice (ICJ) has had to face an unfortunate sequence with the lodging with it of the present Request. The inevitable decision it has just taken draws attention to the importance of the provisional measures of protection that it indicated in its previous Order of 23 July 2018, the compliance to which is obligatory. They duly safeguard human rights under the CERD Convention.

• 2. In addition to the present Order dismissing the UAE’s Request, I feel obliged to leave on the records, under the relentless pressure of time, in the present separate opinion, my personal considerations on the matter dealt with, moved by a sense of duty in the exercise of the international judicial function. I am encouraged to do so since the ICJ has had to decide on a Request which has not invoked human rights [Page 124] protected under a core human rights treaty like the CERD Convention.

• 3. This being so, I shall develop my reflections in the following sequence: (a) provisional measures of protection already ordered to secure respect for some human rights safeguarded under the CERD Convention; (b) the problem of the absence of link in the present Request; (c) the problem of its inconsistencies as to the CERD Convention and as to the CERD Committee; (d) relevance and persistence of provisional measures of protection of persons in continuing situations of vulnerability; and (e) the long-standing importance of the fundamental principle of equality and non-discrimination. Last but not least, in an epilogue, I shall conclude with a recapitulation of the key points that I sustain in the present separate opinion.

• 4. There is an additional point to make here. I reach the conclusion, like the ICJ, that the present Request is not grounded for the ordering of provisional measures under the CERD Convention. Yet, in my perception, as the reasoning of the Court itself is not always sufficiently clear in reaching this decision, and unnecessarily generates uncertainties, I deem it fit, furthermore, to fulfil the need to clarify some points in the present separate opinion, also drawing attention to the provisional measures of protection already indicated by the ICJ in its previous Order of 23 July 2018, which remain in force and are to be complied with.

[387] II. Provisional measures of protection already ordered to secure respect for certain rights safeguarded under the CERD Convention

1. 5. To start with, this is a case of human rights protection under the CERD Convention, like other cases lodged before with the ICJ. The provisional measures of protection already ordered by the ICJ on 23 July 2018 remain in force, so as to secure the safeguard of the rights protected under Articles 2, 4, 5, 6 and 7 of the CERD Convention and the corresponding obligations. This was duly requested by Qatar, as acknowledged by the ICJ’s Order of 23 July 2018.Footnote ¹ There is a clear distinction in the positions upheld by the two contending Parties.

2. 6. Qatar has been attentive in its endeavours to sustain a clear link between the provisional measures of protection requested and the rights invoked under the CERD Convention (Order, para. 56), and the ICJ held that “a link exists between the rights whose protection is being [Page 125] sought and the provisional measures being requested by Qatar” (ibid., para. 59). In effect, in its original Application (of 11 June 2018), Qatar asserts rights under Articles 2, 4, 5, 6 and 7 of the CERD Convention and under the customary international law principle of non-discrimination (ibid., para. 58).

3. 7. For its part, the UAE does not invoke acts appearing to amount to racial discrimination as defined in Article 1 of the CERD Convention, which would then concern the rights under Articles 2, 4, 5, 6 and 7 of the Convention. The UAE’s Request thus appears unrelated to the claims made by Qatar as to the merits phase, and does not concern rights under the CERD Convention which may subsequently be adjudged by the Court. It can clearly be seen that the UAE’s Request of provisional measures does not invoke rights to be protected under the CERD Convention, but simply alleges a violation of the compromissory clause (Art. 22) of the Convention.

4. 8. In the cas d’espèce on the Application of the CERD Convention, unlike the present Request of the UAE, the previous Request of Qatar of provisional measures has raised the need of protection of some rights set forth in the CERD Convention, under Articles 2, 4, 5, 6 and 7.Footnote ² There is thus no link between the measures presently requested by the UAE and the subject-matter of the dispute, which concerns the protection of some human rights of Qataris under the CERD Convention. This deserves attention on the part of the ICJ.

[388] III. The problem of the absence of a link in the present Request

1. 9. In effect, the faculty of the ICJ to indicate provisional measures under Article 41 of the Statute aims at the preservation of the rights invoked by the Parties in the cas d’espèce, pending its decision on the merits thereof. Accordingly, the ICJ, in its recent Order of provisional measures of 19 April 2017, in the case of the Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), has held that it

   must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible. (…)

   [Page 126] A link must exist between the rights whose protection is sought and the provisional measures being requested.

   (ICJ Reports 2017, p. 126, paras. 63-4.)

2. 10. In the present case opposing Qatar to the UAE, concerning also the Application of the CERD Convention, although the subject-matter of the dispute concerns the interpretation and the application of substantive obligations under the CERD Convention, the Request for the indication of provisional measures filed by the UAE does not allege that Qatar violated any substantive rights set forth under the CERD Convention. The Request of the UAE therefore does not establish the existence of a link between the rights whose protection is sought and the provisional measures requested.

IV. The problem of inconsistencies, in the present Request, as to the CERD Convention and as to the CERD Committee

• 11. It should not pass unnoticed that arguments that have been presented to the Court in the present Request of provisional measures disclose certain inconsistencies, which pertain to the rights (under the CERD Convention) to be protected, as well as to proceedings before the CERD Committee. May I thus briefly consider such inconsistencies, recalling at first that the Court’s Order of 23 July 2018 aims at the safeguard of some rights under the CERD Convention duly identified in Qatar’s previous Request.

V. Relevance and persistence of provisional measures of protection in continuing situations

• 19. In the present case of Application of the CERD Convention, the relevance of the provisional measures of protection in force since the ICJ’s Order of 23 July 2018 is underlined by the consideration of a continuing situation affecting some human rights under the CERD Convention. I [391] have addressed this point in my previous separate opinion appended to that Order, and I deem it appropriate to retake the matter here.

• 20. May I recall, in this respect, that in my previous separate opinion I have pondered, inter alia, that

  In effect, the continuing situation in breach of human rights is a point which has had an incidence in other cases before the ICJ as well, at distinct stages of the proceedings. May I briefly recall here three examples, along the last decade. In the case concerning the Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), as the ICJ in its Order of 28 May 2009 decided not to indicate provisional measures, I appended thereto a dissenting opinion, wherein—as already pointed out (para. 79, supra)—I drew attention to the décalage to be bridged between the time of human beings and the time of human justice (paras. 35-64).

  Urgency and probability of irreparable damage, I proceeded, were quite clear, in the continuing situation of lack of access to justice of the victims of the Hissène Habré regime (1982-1990) in Chad. This right of access to justice assumed a “paramount importance” (paras. 29 and 74-7), I added, in the cas d’espèce, under the UN Convention against Torture; furthermore, I dwelt upon the component elements of the autonomous legal regime of provisional measures of protection (paras. 8-14, 26-29 and 65-73). Such measures were [Page 129] necessary for the safeguard of the right to the realization of justice (paras. 78-96 and 101).

  In the case of Jurisdictional Immunities of the State (Germany v. Italy), as the ICJ, in its Order of 6 July 2010 found the counter-claim of Italy inadmissible, once again I appended thereto a dissenting opinion, wherein I examined at depth the notion of “continuing situation” in the factual context of the cas d’espèce, as debated between the contending parties (paras. 55-59 and 92-100). My dissenting opinion encompassed the origins of a “continuing situation” in international legal doctrine (paras. 60-64); the configuration of a “continuing situation” in international litigation and case law (paras. 65-83); the configuration of a “continuing situation” in international legal conceptualization at normative level (paras. 84-91).

  And, once again, I warned against the pitfalls of State voluntarism (paras. 101-123). Suffice it here only to refer to my lengthy reflections on the notion of “continuing situation” in the case on Jurisdictional Immunities of the State (Germany v. Italy), as I see no need to reiterate them expressis verbis herein. What cannot pass unnoticed is that a continuing situation in breach of human rights has had an incidence at distinct stages of the proceedings before the ICJ: in addition to [392] decisions—as just seen—on provisional measures and counter-claim (supra), it has also been addressed in decision as to the merits.

  (ICJ Reports 2018 (II), p. 466, paras. 89-92.)

• 21. May I add, in the present separate opinion, that I further addressed the matter at issue in my extensive dissenting opinion (paras. 17 and 301) in the ICJ’s Judgment (of 3 February 2012) in the same case of Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening),Footnote ¹⁰ just as I did also in my separate opinion (paras. 165-8) in the aforementioned case of Questions relating to the Obligation to Prosecute or Extradite (merits, judgment of 20 July 2012).

• 22. Furthermore, there have been other occasions when I addressed the importance of provisional measures of protection in respect of human rights conventions. May I also refer, e.g., to my separate opinion in the case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (Judgment of 30 November 2010), wherein I dedicated a part of it (IX) to the notion of “continuing situation”, with the projection of human rights violations in timeFootnote ¹¹ (paras. 189-99).

• [Page 130] 23. Shortly afterwards, in the ICJ’s Judgment on reparations (of 19 June 2012) in the same case of Ahmadou Sadio Diallo, I appended a new separate opinion, wherein I drew attention to the “centrality of the victims” singling out their pressing need of rehabilitation (ICJ Reports 2012 (I), p. 379, para. 83). And I added:

  Restorative justice has made great advances in the last decades, due to the evolution of the international law of human rights, humanizing the law of nations (the droit des gens). […] The universal juridical conscience seems to be at last awakening as to the need to honour the victims of human rights abuses and to restore their dignity.

  Rehabilitation of the victims acquires a crucial importance in cases of grave violations of their right to personal integrity. In effect, there have been cases where medical and psychological assistance to the victims has been ordered (…). Such measures have intended to overcome the extreme vulnerability of victims, and to restore their identity and [393] integrity. Rehabilitation of the victims mitigates their suffering and that of their next of kin, thus irradiating itself into their social milieu.

  Rehabilitation, discarding the apparent indifference of their social milieu, helps the victims to recuperate their self-esteem and their capacity to live in harmony with others. Rehabilitation nourishes the victims’ hope in a minimum of social justice. […] In sum, rehabilitation restores one’s faith in human justice.

  (ICJ Reports 2012 (I), pp. 379-80, paras. 83-5.)

• 24. More recently, in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), the ICJ dismissed the case in its restrictive Judgment of 3 February 2015, to which I had appended an extensive dissenting opinion. Once again, I addressed therein, inter alia, the problem of continuing violations of human rights, in distinct forms, such as, e.g., missing persons in enforced disappearances (ICJ Reports 2015 (I), pp. 303-4, 305-7, 310 and 377, paras. 292-3, 298-302, 314-16 and 535), victims of torture and inhuman treatment (ibid., pp. 310-12, 360 and 377, paras. 317-20, 470 and 534).

• 25. In that dissenting opinion, moreover, I deemed it fit to warn, inter alia, that despite the endeavours of human thinking, along history, to provide an explanation for evil,

  we have not been able to rid humankind of evil. (…) Whenever individuals purport to subject their fellow human beings to their “will”, placing this latter above conscience, evil is bound to manifest itself. In one of the most learned [Page 131] writings on the problem of evil, R. P. Sertillanges ponders that the awareness of evil and the anguish emanated therefrom have marked presence in all civilizations. The ensuing threat to the future of humankind has accounted for the continuous presence of that concern throughout the history of human thinking.Footnote ¹²

  (Ibid., p. 361, para. 473.)Footnote ¹³

• 26. As I have already pointed out, in another aforementioned dissenting opinion that I presented, in the case of Jurisdictional Immunities of the State (para. 21, supra), a continuing situation affecting or in breach of human rights has had an incidence at distinct stages of the proceedings before the ICJ, namely, in provisional measures (like in the present case of the Application of the CERD Convention, twice already), as well as in counter-claims, merits, and reparations.

[394] VI. Relevance of provisional measures of protection of rights of persons in situations of vulnerability

1. 27. A continuing situation affecting human rights under the CERD Convention—duly stressed by Qatar in its own Request which led to the ICJ’s Order of 23 July 2018—leads to the continuing vulnerability of victimized human beings, or potential victims. Under the CERD Convention and other human rights treaties, attention is focused on human beings affected, not on their States, nor on strictly inter-State relations.

2. 28. On the occasion of the proceedings of the previous Order in the cas d’espèce, such continuing situation(s) of human vulnerability—related to rights protected under the CERD Convention—was properly addressed by Qatar but not by the UAE, as I pointed out in my previous separate opinion (ICJ Reports 2018 (II), pp. 449-50 and 452-3, paras. 35-6 and 44-6). The aim is, I continued, to set up “a higher standard of protection, under the CERD Convention, of individuals in a continuing situation of great vulnerability” (ibid., p. 458, para. 64). And I added:

   For years I have been sustaining that provisional measures of protection, needed by human beings (under human rights treaties, like the CERD Convention in the cas d’espèce), may become even more than precautionary, being in effect tutelary, particularly for vulnerable persons (potential victims), and directly related to realization of justice itself. Obligations emanating from such ordered measures are not necessarily the same as those ensuing from a [Page 132] Judgment as to the merits (and reparations), they may be entirely distinct (…). Particularly attentive to human beings in situations of vulnerability, provisional measures of protection, endowed with a tutelary character, appear as true jurisdictional guarantees with a preventive dimension.

   (Ibid., p. 460, para. 73.)

3. 29. Hence the provisional measures of protection which were ordered by the ICJ last 23 July 2018, which remain in force, so as to safeguard some of the rights protected under the CERD Convention. The present Request by the UAE, unlike the previous Request by Qatar, does not refer to those rights. The question of human vulnerability counts on the attention of both contending Parties in the present proceedings, but in distinct factual contexts addressed by the UAE and Qatar.

4. 30. Qatar keeps on invoking the protection of rights under the CERD Convention. But, in the case of the position of the UAE, it does not relate vulnerability to the rights safeguarded under the CERD Convention. The UAE’s present Request cannot thus be dealt with by the ICJ in the same way as the previous Request by Qatar. Hence the distinct decisions of the Court as to one request and the other. The important point is that the [395] provisional measures of protection indicated in the ICJ’s Order of last 23 July 2018 remain in force, to the benefit of human beings protected under the CERD Convention in respect of some rights (under Articles 2, 4, 5, 6 and 7).

VII. The long-standing importance of the fundamental principle of equality and non-discrimination

• 31. In that previous Order, the ICJ has noted that Articles 2, 4, 5, 6 and 7 of the CERD Convention “are intended to protect individuals from racial discrimination”, and hence the incidence also of Article 1 of the Convention (para. 52). The issue of continuing human vulnerability is not the only one that has not sufficiently received the needed attention in the present proceedings in respect—as I see them—of some of the rights protected under the CERD Convention.

• 32. In effect, the fundamental principle of equality and non-discrimination is of the utmost importance in the present context. Yet, this fundamental principle has received much more attention in the proceedings pertaining to the previous Order of the ICJ (of 23 July 2018, as to Qatar’s Request), than in the current proceedings (as to the UAE’s Request). In its practice, the CERD Committee has understandably been particularly attentive to the prohibition of discriminatory measures against members of vulnerable groups (such as, e.g., migrants).

• [Page 133] 33. This can be said also of the practice of other Committees under UN human rights conventions, e.g., the Human Rights Committee, the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee against Torture (CAT), among others.Footnote ¹⁴ In cases pertaining to the protection of human rights, the ICJ has been attentive to the work and decisions of such UN Committees.

• 34. For example, in its Judgment of 20 July 2012 (merits) in the aforementioned case of Questions relating to the Obligation to Prosecute or Extradite, the ICJ duly took note of a decision (of 17 May 2006) of the CAT Committee on a complaint filed with it by several Chadian nationals (S. Guengueng et al.) against Hissène Habré for crimes committed in Chad during his violent regime there (para. 27). There is thus nothing to hinder the ICJ to take into account decisions of UN Committees under human rights conventions, so as to secure protection for the rights thereunder.

• 35. The fundamental principle of equality and non-discrimination, and the prohibition of arbitrariness, constitute a point which cannot be over-looked, in time and space. After all, in the relations between human beings and public power, arbitrariness is a problem which has marked [396] presence, and has been a source of concern, throughout the history of humankind. Hence the permanent need to protect human beings against discrimination and arbitrariness.

• 36. This is yet another point which I deem sufficient to refer to in the present separate opinion, as I have already addressed it at length in my previous separate opinion appended to the ICJ’s Order of provisional measures of protection of 23 July 2018, in the cas d’espèce of the Application of the CERD Convention (Parts III-IV, paras. 9-32). After all, the idea of human equality, underlying the conception of the unity of humankind, has marked its presence since the historical origins of the law of nations up to the present (paras. 11-12).

• 37. In recent years, the principle of equality and non-discrimination, and the prohibition of arbitrariness, have also marked presence in international case law, including that of the ICJ (as I have pointed out, e.g., in my separate opinion in the ICJ’s Judgments on the case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), merits, 2010, and reparations, 2012; in my separate opinion in the ICJ’s Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010; in my dissenting opinion in the case of the [Page 134] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation); in my separate opinion in the ICJ’s Advisory Opinion on Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, 2012; in my dissenting opinion in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 2015; in my three dissenting opinions in the three cases of Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, 2016 (Marshall Islands v. United Kingdom) (Marshall Islands v. India) (Marshall Islands v. Pakistan);Footnote ¹⁵ and in my separate opinion in the ICJ’s very recent Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, of 25 February 2019).

• 38. This issue has been properly addressed in the ICJ’s prior Order of last 23 July 2018 in the present case of the Application of the CERD Convention; I devoted much attention to it in my separate opinion appended thereto, wherein I warned, inter alia, that

  The advances in respect of the basic principle of equality and non-discrimination at normative and jurisprudential levels,Footnote ¹⁶ have not, [397] however, been accompanied by the international legal doctrine, which so far has not dedicated sufficient attention to that fundamental principle; it stands far from guarding proportion to its importance both in theory and practice of law. This is one of the rare examples of international case law preceding international legal doctrine, and requiring from it due and greater attention.

  (ICJ Reports 2018 (II), p. 444, para. 18.)

• 39. There remains thus a long way to go. In the present case of the Application of the CERD Convention, in pursuance to Qatar’s Request, the ICJ indicated provisional measures of protection of some rights under the CERD Convention. The present Request by the UAE does not provide the Court the occasion to do the same, as it makes no reference to rights protected under the CERD Convention. In dismissing this Request, the ICJ could have made it clearer that the provisional measures that it has already ordered (on 23 July 2018) remain in force, and are to be complied by the contending Parties, to the benefit of [Page 135] human beings protected under the relevant provisions of the CERD Convention (supra).

VIII. The fundamental character, rather than “plausibility”, of human rights protected under the CERD Convention

• 40. The rights protected under the CERD Convention, in the light of the relevant and basic principle of equality and non-discrimination, are endowed with a fundamental character, with all legal consequences ensuing therefrom. I find it disheartening that, in its reasoning in the present Order, the ICJ once again indulges repeatedly into what it beholds as “plausible rights” (paras. 17, 21, 24, 25 and 26). Fundamental rights protected under the CERD Convention cannot be regarded or labelled as “plausible” or “implausible”: they are fundamental rights.

• 41. I have been advancing my position in this respect for a long time within this Court. Instead of reiterating here all I have been stating along the years, may I here briefly refer to a couple of very recent examples. In my separate opinion appended to the ICJ’s Order of 18 May 2017, in the case of Jadhav (India v. Pakistan), e.g., I have devoted a whole part (V) of it to “The Fundamental (Rather than ‘Plausible’) Human Right to Be Protected: Provisional Measures as Jurisdictional Guarantees of a Preventive Character” (paras. 19-23).

• 42. In my separate opinion appended to the ICJ’s Order of 19 April 2017, in the aforementioned case of the Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), I have likewise dedicated a [398] whole part (V) of it to “The Decisive Test: Human Vulnerability over ‘Plausibility’ of Rights” (paras. 36-44); additionally, recalling the relevant case law on the matter,Footnote ¹⁷ I have devoted three other parts (III, IV and IX) of it to provisional measures of protection in face of the tragedy of the utmost vulnerability of segments of the population (paras. 12-26, 27-35 and 62-7).

• 43. And, in the present case of Application of the CERD Convention, in the separate opinion that I have appended to the ICJ’s previous Order of 23 July 2018, I have also drawn attention to the relevance of [Page 136] the fundamental principle of equality and non-discrimination, and the prohibition of arbitrariness (Parts III-IV, paras. 9-21 and 22-32), as well as to the relevance of provisional measures of protection in face of a continuing situation of vulnerability of segments of the population (Parts VIII and XI, paras. 68-73 and 82-93). I have pondered, inter alia, that

  Human beings in vulnerability are the ultimate beneficiaries of compliance with the ordered provisional measures of protection. However vulnerable, they are subjects of international law. We are here before the new paradigm of the humanized international law, the new jus gentium of our times, sensitive and attentive to the needs of protection of the human person in any circumstances of vulnerability. This is a point which I have been making in successive individual opinions in previous decisions of the ICJ; I feel it sufficient only to refer to them now, with no need to extend further thereon in the present separate opinion.

  (ICJ Reports 2018 (II), pp. 459-60, para. 70.)

• 44. In effect, continuing human vulnerability has marked permanent presence in human history, drawing attention to the need of protection of vulnerable persons and groups. Awareness of human vulnerability can be clearly found, e.g., in ancient Greek tragedies, which remain so contemporary in our days. Those tragedies contain warnings as to human vulnerability, even more so in situations of violence and armed attacks. For example, Euripides expresses a humanist outlook, his concern with the conflict between might and right, and his disillusionment with so-called “rational” decision-making in relation to armed confrontation (Children of Heracles, circa 430 bc, and, as to extreme violence, Medea, 431 bc). In the twenty-first century, human vulnerability persists, and seems to increase.

[399] IX. Epilogue: A recapitulation

1. 45. This is the third recent case under the CERD Convention; provisional measures of protection (requested by Qatar) have already been indicated by the ICJ in the cas d’espèce, in its previous Order of 23 July 2018, and remain in force. The present case of Application of the CERD Convention concerns the rights protected thereunder, which are the rights of human beings, and not the rights of States. The present Request by the UAE for provisional measures, dismissed by the ICJ, does not invoke any of the human rights protected under the CERD Convention.

2. 46. The ICJ has rightly dismissed the Request. In doing so, in the course of the present Order, the Court made references (paras. 16-18, 25-6 and 29) to its previous Order of 23 July 2018. Yet, in my [Page 137] understanding, the Court could have gone further beyond that, in expressly stressing the maintenance of the provisional measures of protection that it had previously ordered, to be duly complied with, given the importance of the human rights safeguarded under the CERD Convention.

3. 47. Keeping this in mind, may I, last but not least, proceed to a brief recapitulation of the main points that I have deemed it fit to make in the course of the present separate opinion. Primus: In the cas d’espèce, provisional measures of protection have already been ordered by the ICJ on 23 July 2018, at the prior Request of Qatar, in order to safeguard certain human rights under the CERD Convention. Secundus: The UAE’s current Request does not even invoke human rights under the CERD Convention. Tertius: Moreover, unlike the previous Request of Qatar, the present Request of the UAE does not set up the existence of a link between the rights whose protection is sought and the provisional measures requested.

4. 48. Quartus: The ICJ has thus faced, in the UAE’s Request, inconsistencies in respect of the CERD Convention (as to jurisdiction) as well as in respect of the operation of the CERD Committee. Hence the ICJ’s decision to dismiss the present Request. Quintus: The existence, as in the cas d’espèce, of a continuing situation affecting some human rights under the CERD Convention underlines the relevance of the provisional measures of protection in force since the ICJ’s Order of 23 July 2018.

5. 49. Sextus: Such continuing situation brings to the fore the continuing vulnerability of the affected human beings, or potential victims. Septimus: The rights safeguarded are the ones invoked by Qatar under the CERD Convention; the UAE, for its part, does not even refer to those rights. Octavus: The provisional measures of protection indicated by the ICJ’s Order of 23 July 2018 remain in force. Nonus: Provisional measures of protection safeguard rights under UN conventions of human rights, such as the CERD Convention.

6. 50. Decimus: The fundamental principle of equality and non-discrimination, and the prohibition of arbitrariness, lying in the foundations of the CERD Convention itself, require particular attention. [400] Undecimus: Such attention is already present at normative and jurisprudential levels, but it remains still insufficiently examined by the international legal doctrine, which should become more attentive and devoted to the matter. Duodecimus: The provisional measures of protection indicated by the ICJ’s Order of 23 July 2018, may I reiterate, remain in force and are to be duly complied with.

Introduction

• 1. I regret that I am unable to support the conclusions reached by the majority of the Court. In my opinion, the Court should have upheld at least the first provisional measure requested by the UAE. I believe that, in light of the doctrine of lis pendens, the procedural rights asserted by the UAE are at least plausible under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (I), and that the other conditions for the indication of provisional measures are also met (II).

I. Lis pendens and the plausibility of the rights claimed

• 2. As regards the first provisional measure requested by the UAE, namely that the Court order Qatar to immediately withdraw its Communication submitted to the Committee on the Elimination of Racial Discrimination (the CERD Committee), both Parties referred to the notion of lis pendens, but disagreed about its relevance to Article 22 of CERD. The UAE asserts that the doctrine of lis pendens requires the Court to order Qatar not to proceed with the parallel proceedings before the Committee (Request, para. 42). Qatar, for its part, considers that this doctrine, if it exists, is not applicable to the dispute settlement mechanisms provided for by the Convention (CR 2019/6, p. 23, paras. 33-5 (Lowe)).

• [Page 139] 3. The status of the doctrine of lis pendens in public international law is not entirely clear. Unlike the principle of res judicata, the doctrine of lis pendens does not have its textual basis in the Statute or the Rules of Court. Neither the Court nor its predecessor has ever affirmed or rejected the applicability of the doctrine of lis pendens in a case brought before it. However, in the case concerning Certain German Interests in Polish Upper Silesia, the Permanent Court did consider, when interpreting the request [403] of the Polish Government (the Respondent), “whether the doctrine of litispendance, the object of which is to prevent the possibility of conflicting judgments, can be invoked in international relations” (Jurisdiction, Judgment No 6, 1925, PCIJ, Series A, No 6, p. 20). The Permanent Court had no difficulty in rejecting Poland’s claim that the proceedings brought before the Court by Germany (the Applicant) in respect of the factory at Chorzów should be suspended until the Germano-Polish Mixed Arbitral Tribunal had given its judgment on the action relating to the same factory, “because it is clear that the essential elements which constitute litispendance are not present” (ibid.).

• 4. The Permanent Court did not make any general pronouncements about the nature and status of the doctrine of lis pendens before it. Nevertheless, the reasoning outlined above suggests that it did not rule out the possibility of the doctrine being applied in a case submitted to it, if the “essential elements” were present. The first question, therefore, is what are the “essential elements” for the doctrine of lis pendens to be applied (A). The second is whether the provisions of CERD, in particular Article 22, allow such an application (B).

II. The other conditions for the indication of provisional measures

• 18. In addition to the plausibility of the procedural right asserted, I believe that the other conditions for the indication of provisional [Page 144] measures are also met. First, the prima facie jurisdiction of the Court to entertain a request for the indication of provisional measures made by the respondent is examined in light of the merits of the case brought by the applicant (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, ICJ Reports 2007 (I), p. 10, para. 24), and the Court has already confirmed its prima facie jurisdiction on this basis in its Order of 23 July 2018 (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, [408] Order of 23 July 2018, ICJ Reports 2018 (II), p. 421, para. 41). The present Order does not appear to depart from that conclusion (see paragraph 16 of the Order).

• 19. Second, as regards “the link between the alleged rights the protection of which is the subject of the provisional measures being sought, and the subject of the proceedings before the Court on the merits of the case” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, ICJ Reports 2007 (I), p. 10, para. 27), I am of the view that there is a sufficient link between the procedural right claimed by the UAE and the subject-matter of the proceedings before the Court on the merits of the case, since the right in question is that of the UAE not to be forced to defend itself in the dispute brought by Qatar.

• 20. Third, I believe that the lis pendens situation entails “a risk that irreparable prejudice could be caused” (see Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018, ICJ Reports 2018 (II), p. 645, para. 77), since an unsatisfactory defence on the part of the UAE, as a result of the parallel proceedings, may irreparably influence the final decisions of the Court or the CERD Committee, or both.

• 21. Having concluded that all the conditions are met, it is my view that the first request of the UAE for the indication of provisional measures should have been granted. The final question, therefore, is what measure should have been adopted to address the lis pendens situation in this case appropriately. In this regard, Qatar suggested that the immediate withdrawal of its Communication to the CERD Committee could cause it disproportionate harm (CR 2019/6, pp. 55-6, paras. 1-5 (Klein)).

• 22. In my opinion, an immediate withdrawal was not the only way to resolve the lis pendens situation. If the measure requested by the UAE risked having a disproportionate effect on Qatar, the Court could have made an order providing for the suspension of the proceedings before the [Page 145] CERD Committee, by directing Qatar to take all measures at its disposal to ensure that the proceedings before the Committee are suspended pending the final decision in this case. Alternatively, the Court could have exercised its power under Article 75, paragraph 1, of the Rules of Court to conclude, for example, that it should suspend the present proceedings until the CERD Committee had issued its concluding observations on the Communication submitted by Qatar. There are in fact examples in international practice of proceedings being suspended. The arbitral tribunal in the MOX Plant case decided to suspend its own proceedings in a similar situation (Order No 3, suspension of proceedings on jurisdiction and merits, and request for further provisional measures, 24 June 2003, para. 29). In the case concerning Certain German Interests in Polish Upper Silesia, the Polish Government requested a suspension rather than the withdrawal of the proceedings before the Permanent Court in the face of [409] allegedly parallel proceedings before it and the Germano-Polish Mixed Arbitral Tribunal (Jurisdiction, Judgment No 6, 1925, PCIJ, Series A, No 6, p. 19). Moreover, the UAE itself has, in the present case, mentioned the possibility of suspending the proceedings (CR 2019/5, p. 29, para. 6 (Reisman)). I believe that such a suspension, instead of a withdrawal, would not cause disproportionate harm to Qatar.

• 23. In any event, it is my opinion that the Court should have indicated a provisional measure to resolve the lis pendens situation, whether the withdrawal or the suspension of the proceedings. For these reasons, I voted against the operative part of the present Order.

TABLE OF CONTENTS

• Chronology of the procedure 1-25

  • I. Introduction 26-40

    • A. Factual background 26-34

    • B. The jurisdictional basis invoked and the preliminary objections raised 35-40

  • II. Subject-matter of the dispute 41-70

  • III. First preliminary objection: Jurisdiction ratione materiae 71-114

    • A. The question whether the term “national origin” encompasses current nationality 74-105

      • 1. The term “national origin” in accordance with its ordinary meaning, read in its context and in the light of the object and purpose of CERD 78-88

      • 2. The term “national origin” in the light of the travaux préparatoires as a supplementary means of interpretation 89-97

      • 3. The practice of the CERD Committee 98-101

      • 4. The jurisprudence of regional human rights courts 102-4

      • 5. Conclusion on the interpretation of the term “national origin” 105

    • B. The question whether the measures imposed by the UAE on certain Qatari media corporations come within the scope of the Convention 106-8

    • C. The question whether the measures that Qatar characterizes as “indirect discrimination” against persons of Qatari national origin fall within the scope of the Convention 109-13

    • D. General conclusion 114

• Operative clause 115

• [77] 1. On 11 June 2018, the State of Qatar (hereinafter referred to as “Qatar”) filed in the Registry of the Court an Application instituting proceedings against the United Arab Emirates (hereinafter referred to as the “UAE”) with regard to alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (hereinafter “CERD” or the “Convention”).

• 2. In its Application, Qatar seeks to found the Court’s jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article 22 of CERD.

• 3. On 11 June 2018, Qatar also submitted a Request for the indication of provisional measures, referring to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of Court.

• [Page 147] 4. The Registrar immediately communicated to the Government of the UAE the Application, in accordance with Article 40, paragraph 2, of the Statute of the Court, and the Request for the indication of provisional measures, in accordance [78] with Article 73, paragraph 2, of the Rules of Court. He also notified the Secretary-General of the United Nations of the filing of the Application and the Request for the indication of provisional measures by Qatar.

• 5. In addition, by a letter dated 13 June 2018, the Registrar informed all Member States of the United Nations of the filing of the above-mentioned Application and Request for the indication of provisional measures.

• 6. Pursuant to Article 40, paragraph 3, of the Statute of the Court, the Registrar notified the Member States of the United Nations, through the Secretary-General, of the filing of the Application, by transmission of the printed bilingual text thereof.

• 7. Since the Court included upon the Bench no judge of the nationality of either Party, each Party proceeded to exercise the right conferred upon it by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case. Qatar chose Mr Yves Daudet and the UAE Mr Jean-Pierre Cot.

• 8. By its Order of 23 July 2018, the Court, having heard the Parties, indicated the following provisional measures:

  • (1) The United Arab Emirates must ensure that

    • (i) families that include a Qatari, separated by the measures adopted by the United Arab Emirates on 5 June 2017, are reunited;

    • (ii) Qatari students affected by the measures adopted by the United Arab Emirates on 5 June 2017 are given the opportunity to complete their education in the United Arab Emirates or to obtain their educational records if they wish to continue their studies elsewhere; and

    • (iii) Qataris affected by the measures adopted by the United Arab Emirates on 5 June 2017 are allowed access to tribunals and other judicial organs of the United Arab Emirates;

  • (2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

  (ICJ Reports 2018 (II), pp. 433-4, para. 79.)

• 9. Pursuant to Article 43, paragraph 1, of the Rules of Court, the Registrar addressed to States Parties to CERD the notifications provided for in Article 63, paragraph 1, of the Statute. In addition, in accordance with Article 69, paragraph 3, of the Rules of Court, the Registrar addressed to the United Nations, through its Secretary-General, the notifications provided for in Article 34, paragraph 3, of the Statute.

• [Page 148] 10. By an Order dated 25 July 2018, the President of the Court fixed 25 April 2019 and 27 January 2020 as the respective time-limits for the filing in the case of a Memorial by Qatar and a Counter-Memorial by the UAE.

• 11. On 22 March 2019, the UAE, referring to Article 41 of the Statute and Articles 73, 74 and 75 of the Rules of Court, also submitted a Request for the indication of provisional measures, in order to “preserve the UAE’s procedural rights” and “prevent Qatar from further aggravating or extending the dispute between the Parties pending a final decision in th[e] case”.

• 12. The Deputy-Registrar immediately communicated a copy of the said Request to the Government of Qatar. He also notified the Secretary-General of the United Nations of the filing of the UAE’s Request for the indication of provisional measures.

• [79] 13. Qatar filed its Memorial in the case on 25 April 2019, within the time-limit fixed by the President of the Court.

• 14. On 30 April 2019, within the time-limit prescribed by Article 79, paragraph 1, of the Rules of Court of 14 April 1978 as amended on 1 February 2001, the UAE presented preliminary objections to the jurisdiction of the Court and the admissibility of the Application. Consequently, by an Order of 2 May 2019, having noted that, by virtue of Article 79, paragraph 5, of the Rules of Court of 14 April 1978 as amended on 1 February 2001, the proceedings on the merits were suspended, the President of the Court fixed 30 August 2019 as the time-limit within which Qatar could present a written statement of its observations and submissions on the preliminary objections raised by the UAE.

• 15. By its Order of 14 June 2019, the Court, having heard the Parties, rejected the Request for the indication of provisional measures submitted by the UAE on 22 March 2019.

• 16. Qatar filed a written statement of its observations and submissions on the preliminary objections raised by the UAE on 30 August 2019, within the time-limit fixed by the President of the Court.

• 17. By a letter dated 3 September 2019, the Registrar, acting pursuant to Article 69, paragraph 3, of the Rules of Court, transmitted to the Secretary-General of the United Nations copies of the written proceedings filed thus far in the case, and asked whether the Organization intended to present observations in writing under that provision in relation to the preliminary objections raised by the UAE. By a letter dated 27 September 2019, the Under-Secretary-General for Legal Affairs of the United Nations stated that the Organization did not intend to submit any observations in writing within the meaning of Article 69, paragraph 3, of the Rules of Court.

• [Page 149] 18. By a letter dated 19 August 2020, the Agent of the UAE, referring to Article 56 of the Rules of Court and Practice Directions IX and IXbis, expressed the wish of her Government to produce three new documents. By a letter dated 24 August 2020, the Agent of Qatar informed the Court that his Government consented to the production of the three new documents by the UAE and expressed the wish of his Government also to produce four new documents under Article 56, paragraph 1, of the Rules of Court. By a letter dated 26 August 2020, the Agent of the UAE informed the Court that her Government had no objection to the production of the four new documents by Qatar. Accordingly, the documents submitted by both Parties were added to the case file.

• 19. Pursuant to Article 53, paragraph 2, of its Rules, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and the documents annexed would be made accessible to the public on the opening of the oral proceedings, with the exception of Annexes 163, 165-243, 247-63, 265-71 and Exhibit B of Annex 272 of Qatar’s Memorial, and Exhibit A of Annex 272-A of Qatar’s Written Statement on the Preliminary Objections of the UAE.

• 20. Public hearings on the preliminary objections raised by the UAE were held by video link from 31 August 2020 to 7 September 2020, at which the Court heard the oral arguments and replies of:

  For the UAE:

  • H.E. Ms Hissa Abdullah Ahmed Al-Otaiba,

  • H.E. Mr Abdalla Hamdan AlNaqbi,

  • Ms Lubna Qassim Al Bastaki,

  • Sir Daniel Bethlehem,

  • [80] Mr Scott Sheeran,

  • Mr Mathias Forteau.

  For Qatar: Mr Mohammed Abdulaziz Al-Khulaifi,

  • Mr Pierre Klein,

  • Ms Catherine Amirfar,

  • Mr Lawrence H. Martin,

  • Mr Nico Schrijver,

  • Mr Vaughan Lowe.

  *

• 21. In the Application, the following claims were made by Qatar:

  1. 65. Qatar, in its own right and as parens patriae of its citizens, respectfully requests the Court to adjudge and declare that the UAE, through its State [Page 150] organs, State agents, and other persons and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control, has violated its obligations under Articles 2, 4, 5, 6, and 7 of the CERD by taking, inter alia, the following unlawful actions:

     • (a) Expelling, on a collective basis, all Qataris from, and prohibiting the entry of all Qataris into, the UAE on the basis of their national origin;

     • (b) Violating other fundamental rights, 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;

     • (c) Failing to condemn and instead encouraging racial hatred against Qatar and Qataris and failing to take measures that aim to combat prejudices, including by inter alia: criminalizing the expression of sympathy toward Qatar and Qataris; allowing, promoting, and financing an international anti-Qatar public and social-media campaign; silencing Qatari media; and calling for physical attacks on Qatari entities; and

     • (d) Failing to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions.

  2. 66. Accordingly, Qatar respectfully requests the Court to order the UAE to take all steps necessary to comply with its obligations under CERD and, inter alia:

     • (a) Immediately cease and revoke the discriminatory measures, including but not limited to the directives against ‘sympathizing’ with Qataris, and any other national laws that discriminate de jure or de facto against Qataris on the basis of their national origin;

     • [81] (b) Immediately cease all other measures that incite discrimination (including media campaigns and supporting others to propagate discriminatory messages) and criminalize such measures;

     • (c) Comply with its obligations under the CERD to condemn publicly racial discrimination against Qataris, pursue a policy of eliminating racial discrimination, and adopt measures to combat such prejudice;

     • (d) Refrain from taking any further measures that would discriminate against Qataris within its jurisdiction or control;

     • (e) Restore rights of Qataris to, inter alia, 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, and put in place measures to ensure those rights are respected;

     • (f) Provide assurances and guarantees of non-repetition of the UAE’s illegal conduct; and

     • (g) Make full reparation, including compensation, for the harm suffered as a result of the UAE’s actions in violation of the CERD.

• [Page 151] 22. In the written proceedings on the merits, the following submissions were presented on behalf of the Government of Qatar in its Memorial:

  On the basis of the facts and legal arguments presented in this Memorial, Qatar, in its own right and as parens patriae of its citizens, respectfully requests the Court:

  • 1. To adjudge and declare that the UAE, by the acts and omissions of its organs, agents, persons, and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control, is responsible for violations of the CERD, namely Articles 2(1), 4, 5, 6 and 7, including by:

    • (a) expelling, on a collective basis, all Qataris from the UAE;

    • (b) applying the Absolute Ban and Modified Travel Ban in violation of fundamental rights that must be guaranteed equally to all under the CERD, regardless of national origin, including the rights to family, freedom of opinion and expression, education and training, property, work, and equal treatment before tribunals;

    • (c) engaging in, sponsoring, supporting, and otherwise encouraging racial discrimination, including racially discriminatory incitement against Qataris, most importantly by criminalizing ‘sympathy’ with Qatar and orchestrating, funding, and actively promoting a campaign of hatred against Qatar and Qataris, and thereby failing to nullify laws and regulations that have the effect of creating or perpetuating racial discrimination, to take ‘all appropriate’ measures to combat the spread of prejudice and negative stereotypes, and to promote tolerance, understanding and friendship; and

    • [82] (d) failing to provide access to effective protection and remedies to Qataris to seek redress against acts of racial discrimination under the CERD through UAE tribunals or institutions, including the right to seek reparation;

  • 2. To adjudge and declare that the UAE has violated the Court’s Order on Provisional Measures of 23 July 2018;

  • 3. And further to adjudge and declare that the UAE is obligated to cease its ongoing violations, make full reparation for all material and moral damage caused by its internationally wrongful acts and omissions under the CERD, and offer assurances and guarantees of non-repetition.

  • 4. Accordingly, the Court is respectfully requested to order that the UAE:

    • (a) immediately cease its ongoing internationally wrongful acts and omissions in contravention of Articles 2(1), 4, 5, 6, and 7 of the Convention as requested in Chapter VII;

    • (b) provide full reparation for the harm caused by its actions, including (i) restitution by lifting the ongoing Modified Travel Ban as it applies to Qataris collectively based on their national origin; (ii) financial compensation for the material and moral damage suffered by Qatar and Qataris, in an amount to be quantified in a separate phase of these [Page 152] proceedings; and (iii) satisfaction in the forms of a declaration of wrongfulness and an apology to Qatar and the Qatari people, as requested in Chapter VII; and

    • (c) provide Qatar with assurances and guarantees of non-repetition in written form as requested in Chapter VII.

• 23. In the preliminary objections, the following submissions were presented on behalf of the Government of the UAE:

  1. 239. On the basis of each of the three independent preliminary objections explained above, the United Arab Emirates respectfully requests the Court to adjudge and declare that the Court lacks jurisdiction over Qatar’s Application of 11 June 2018 and that the Application is inadmissible.

  2. 240. The United Arab Emirates reserves the right to amend and supplement this submission in accordance with the provisions of the Statute and the Rules of Court. The United Arab Emirates also reserves the right to submit further objections to the jurisdiction of the Court and to the admissibility of Qatar’s claims if the case were to proceed to any subsequent phase.

• 24. In the written statement of its observations and submissions on the preliminary objections, the following submissions were presented on behalf of the Government of Qatar:

  For the reasons described above, Qatar respectfully requests that the Court:

  • 1. Reject the Preliminary Objections presented by the UAE;

  • [83] 2. Hold that it has jurisdiction to hear the claims presented by Qatar as set out in the Memorial, and that these claims are admissible; and

  • 3. Proceed to hear those claims on the merits.

• 25. At the oral proceedings on the preliminary objections, the following submissions were presented by the Parties:

  On behalf of the Government of the UAE,

  at the hearing of 4 September 2020:

  The United Arab Emirates respectfully requests the Court to adjudge and declare that the Court lacks jurisdiction to address the claims brought by the State of Qatar by its Application dated 11 June 2018.

  On behalf of the Government of Qatar,

  at the hearing of 7 September 2020:

  In accordance with Article 60 of the Rules of Court, for the reasons explained in our Written Statement of 30 August 2019 and during these hearings, Qatar respectfully asks the Court to:

  • (a) Reject the Preliminary Objections presented by the UAE;

  • (b) Hold that it has jurisdiction to hear the claims presented by Qatar as set out in its Application and Memorial; and

  • [Page 153] (c) Proceed to hear those claims on the merits;

  • (d) Or, in the alternative, reject the Second Preliminary Objection presented by the UAE and hold, in accordance with the provisions of Article 79ter, paragraph 4, of the Rules of Court, that the First Preliminary Objection submitted by the UAE does not possess an exclusively preliminary character.

*

* *

A. Factual background

• 26. On 5 June 2017, the UAE issued a statement (hereinafter the “5 June 2017 statement”) which provided, in relevant part, that

  based on the insistence of the State of Qatar to continue to undermine the security and stability of the region and its failure to honour international commitments and agreements, it has been decided to take the following measures that are necessary for safeguarding the interests of the [Gulf Cooperation Council] States in general and those of the brotherly Qatari people in particular:

  …

  [84] 2. Preventing Qatari nationals from entering the UAE or crossing its point of entry, giving Qatari residents and visitors in the UAE 14 days to leave the country for precautionary security reasons. The UAE nationals are likewise banned from traveling to or staying in Qatar or transiting through its territories.

  The Gulf Cooperation Council (hereinafter the “GCC”) is an intergovernmental political and economic union of which Qatar and the UAE were founding members in 1981, along with the Kingdom of Bahrain, the State of Kuwait, the Sultanate of Oman and the Kingdom of Saudi Arabia.

• 27. In addition, the 5 June 2017 statement announced the severance of diplomatic relations with Qatar, in support of actions taken by the Kingdom of Bahrain and the Kingdom of Saudi Arabia, giving Qatari diplomats 48 hours to leave the UAE. It also proclaimed the “[c]losure of UAE airspace and seaports for all Qataris in 24 hours and banning [of] all Qatari means of transportation, coming to or leaving the UAE, from crossing, entering or leaving the UAE territories”.

• 28. The 5 June 2017 statement explained:

  The UAE is taking these decisive measures as a result of the Qatari authorities’ failure to abide by the Riyadh Agreement on returning GCC diplomats to [Page 154] Doha and its Complementary Arrangement in 2014, and Qatar’s continued support, funding and hosting of terror groups, primarily Islamic Brotherhood, and its sustained endeavours to promote the ideologies of Daesh and Al Qaeda across its direct and indirect media in addition to Qatar’s violation of the statement issued at the US-Islamic Summit in Riyadh on May 21st, 2017 on countering terrorism in the region and considering Iran a state sponsor of terrorism. The UAE measures are taken as well based on Qatari authorities’ hosting of terrorist elements and meddling in the affairs of other countries as well as their support of terror groups—policies which are likely to push the region into a stage of unpredictable consequences.

• 29. According to an announcement posted on the website of the Ministry of Foreign Affairs and International Cooperation of the UAE on 11 June 2017, the President of the UAE had “instructed the authorities concerned to take into consideration the humanitarian circumstances of Emirati-Qatari joint families”. The announcement further provided that “the Ministry of the Interior ha[d] set up a telephone line … to receive such cases and take appropriate measures to help them”. In a statement [85] dated 5 July 2018, the Ministry of Foreign Affairs and International Cooperation of the UAE specified that

  [s]ince its announcement on June 5, 2017 … the UAE has instituted a requirement for all Qatari citizens overseas to obtain prior permission for entry into the UAE. Permission may be granted for a limited-duration period, at the discretion of the UAE [G]overnment.

  The statement added that

  Qatari citizens already resident in the UAE need not apply for permission to continue residence in the UAE. However, all Qatari citizens resident in the UAE are encouraged to obtain prior permission for re-entry into UAE territory. All applications for entry clearance may be made through the telephone hotline announced on June 11, 2017.

• 30. The UAE took certain additional measures relating to Qatari media and speech in support of Qatar. In this regard, on 6 June 2017, the Attorney General of the UAE issued a statement indicating that expressions of sympathy for the State of Qatar or objections to the measures taken by the UAE against the Qatari Government were considered crimes punishable by imprisonment and a fine. The UAE blocked several websites operated by Qatari companies, including those run by Al Jazeera Media Network. On 6 July 2017, the Abu Dhabi Department of Economic Development issued a circular prohibiting the broadcasting of certain television channels operated by Qatari companies.

• [Page 155] 31. On 8 March 2018, Qatar deposited a communication with the Committee on the Elimination of Racial Discrimination (hereinafter the “CERD Committee”) under Article 11 of the Convention, requesting that the UAE take all necessary steps to end the measures enacted and implemented since 5 June 2017. According to Article 11, paragraph 1, of CERD, “[i]f a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee”. The UAE, through its responses dated 29 November 2018, 14 January 2019 and 19 March 2019, requested “the Committee to dismiss Qatar’s Article 11 Communication for lack [of] jurisdiction and/or lack of admissibility”.

• 32. On 11 June 2018, Qatar filed an Application in the Registry of the Court instituting the present proceedings (see paragraph 1 above).

• 33. In its decision on jurisdiction with regard to Qatar’s inter-State communication, dated 27 August 2019, the CERD Committee concluded [86] that “it ha[d] jurisdiction to examine the exceptions of inadmissibility raised by the Respondent State” (Decision on the jurisdiction of the Committee over the inter-State communication submitted by Qatar against the UAE dated 27 August 2019, UN doc. CERD/C/99/3, para. 60). In its decision on the admissibility of the inter-State communication, also dated 27 August 2019, the CERD Committee concluded as follows:

  1. 64. In respect of the inter-state communication submitted on 8 March 2018 by Qatar against the United Arab Emirates, the Committee rejects the exceptions raised by the Respondent State concerning the admissibility of the inter-state communication.

  2. 65. The Committee requests its Chairperson to appoint, in accordance with article 12(1) of the Convention, the members of an ad hoc Conciliation Commission, which shall make its good offices available to the States concerned with a view to an amicable solution of the matter on the basis of the States parties’ compliance with the Convention.

  (Decision on the admissibility of the inter-State communication submitted by Qatar against the UAE dated 27 August 2019, UN doc. CERD/C/99/4, paras. 64-5.)

• 34. By a Note Verbale dated 27 April 2020, addressed by the Permanent Mission of the UAE in Geneva to the Office of the High Commissioner for Human Rights, the Permanent Mission “note[d] with appreciation the [Office’s] Note Verbale of 9 April 2020 advising that the ad hoc Conciliation Commission has been appointed by the Chair of the Committee, and has been effective since 1 March 2020”.

B. The jurisdictional basis invoked and the preliminary objections raised

• 35. Qatar asserts that the Court has jurisdiction over its Application pursuant to Article 22 of CERD, which provides:

  Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

• 36. Qatar and the UAE are parties to CERD. Qatar acceded to this Convention on 22 July 1976 without entering any reservation. The UAE did so on 20 June 1974 without entering any reservation relevant to the present proceedings.

• 37. Qatar contends that there is a dispute between the Parties with respect to the interpretation and application of CERD and that the Parties [87] have been unable to settle this dispute despite Qatar’s attempts to negotiate with the UAE.

• 38. At the present stage of these proceedings, the UAE asks the Court to adjudge and declare that the Court lacks jurisdiction to address the claims brought by Qatar on the basis of two preliminary objections. In its first preliminary objection, the UAE maintains that the Court lacks jurisdiction ratione materiae over the dispute between the Parties because the alleged acts do not fall within the scope of CERD. In its second preliminary objection, the UAE asserts that Qatar failed to satisfy the procedural preconditions of Article 22 of CERD.

• 39. The Court notes that, in its written pleadings, the UAE had also included an objection to admissibility on the ground that Qatar’s claims constitute an abuse of process. However, during the oral proceedings, counsel for the UAE stated that it was not pursuing an allegation of abuse of process at this stage of the proceedings.

• 40. Before addressing the preliminary objections of the UAE, the Court will determine the subject-matter of the dispute.

[95] A. The question whether the term “national origin” encompasses current nationality

1. 74. Qatar is of the view that the term “national origin”, in the definition of racial discrimination in Article 1, paragraph 1, of the Convention, encompasses current nationality and that the measures of which Qatar complains thus fall within the scope of CERD. The UAE argues that the term “national origin” does not include current nationality and that the Convention does not prohibit differentiation based on the current nationality of Qatari citizens, as complained of by Qatar in this case. Thus, the Parties hold opposing views on the meaning and scope of the term “national origin” in Article 1, paragraph 1, of the Convention, which reads:

   In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

   * *

2. 75. In order to determine its jurisdiction ratione materiae in this case, the Court will interpret CERD and specifically the term “national origin” in Article 1, paragraph 1, thereof by applying the rules on treaty interpretation enshrined in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (hereinafter the “Vienna Convention”). Although that Convention is not in force between the Parties and is not, in any event, applicable to treaties concluded before it entered into force, such as CERD, it is well established that Articles 31 and 32 of the Vienna Convention reflect rules of customary international law (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2019 (II), p. 598, para. 106; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, ICJ Reports 2018 (I), pp. 320-1, para. 91; Question of the [Page 165] Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ Reports 2016 (I), p. 116, para. 33).

3. 76. The Court will interpret the term “national origin” by reference, first, to the elements set out in Article 31 of the Vienna Convention, [96] which states the general rule of treaty interpretation. Only then will the Court turn to the supplementary means of interpretation provided for in Article 32 in order to confirm the meaning resulting from that process, or to remove ambiguity or obscurity, or to avoid a manifestly absurd or unreasonable result (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, ICJ Reports 2018 (I), p. 321, para. 91; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007 (I), pp. 109-10, para. 160).

4. 77. The Court will also examine the practice of the CERD Committee and of regional human rights courts. In their pleadings, the Parties expressed different opinions on that practice in relation to the interpretation of the term “national origin” in Article 1, paragraph 1, of the Convention. The Court recalls that, in its jurisprudence, it has taken into account the practice of committees established under human rights conventions, as well as the practice of regional human rights courts, in so far as this was relevant for the purposes of interpretation (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, ICJ Reports 2012 (I), p. 331, para. 13; pp. 334-5, para. 24; p. 337, para. 33, and pp. 339-40, para. 40; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012 (II), pp. 457-8, para. 101; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010 (II), pp. 663-4, para. 66; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004 (I), p. 179, para. 109, and pp. 192-3, para. 136).

B. The question whether the measures imposed by the UAE on certain Qatari media corporations come within the scope of the Convention

• 106. In its second claim, Qatar complains that the measures imposed on certain media corporations in the UAE have infringed the right to freedom of opinion and expression of Qataris. According [Page 176] to the Applicant, the UAE has blocked access to news websites and television stations operated by Qatari corporations, including Al Jazeera. In particular, Qatar submits that the effect of closing down Qatari media channels has been to silence sources of independent information that might have mitigated the racially discriminatory messages disseminated as part of anti-Qatari hate speech and propaganda. The Applicant submits that the block on Qatari media has not only directly targeted Qatari corporations, but has also infringed the freedom of expression of Qatari ideas and culture and contributed to the climate of fear experienced by Qataris as a result of their Qatari identity being targeted.

• 107. The UAE considers that the Applicant’s claims in respect of Qatari media corporations do not fall within the scope of the Convention. It submits that corporations are not covered by the Convention, which applies only to natural persons. The UAE further submits that while corporations may have a nationality, they do not have a national origin. In respect of the allegations made by Qatar, the UAE argues that it has a regulatory framework for media activities, which provides for certain content restrictions that allow the authorities to block the websites of media corporations. It is pursuant to this regulatory framework, which applies to all media corporations operating in the UAE, that the Respondent has blocked certain websites of Qatari media corporations.

  * *

• 108. For the present purposes, the Court will examine only whether the measures concerning certain Qatari media corporations, which according to Qatar have been imposed in a racially discriminatory manner, fall [107] within the scope of the Convention. As to the alleged “indirect discrimination” resulting from the effect of the media block on persons of Qatari national origin, the Court will examine that aspect in its analysis of Qatar’s third claim. The Court notes that the Convention concerns only individuals or groups of individuals. This is clear from the various substantive provisions of CERD, which refer to “certain racial or ethnic groups or individuals” (Article 1, paragraph 4), “race or group of persons” (Article 4(a)), or “individuals or groups of individuals” (Article 14, paragraph 1), as well as its Preamble which refers to racial “discrimination between human beings”. While under Article 2, paragraph 1(a), of the Convention, “[e]ach State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions”, the Court considers [Page 177] that this reference to “institutions” does not include media corporations such as those in the present case. Read in its context and in the light of the object and purpose of the Convention, the term “institutions” refers to collective bodies or associations, which represent individuals or groups of individuals. Thus, the Court concludes that Qatar’s second claim relating to Qatari media corporations does not fall within the scope of the Convention.

C. The question whether the measures that Qatar characterizes as “indirect discrimination” against persons of Qatari national origin fall within the scope of the Convention

• 109. Qatar submits that the “expulsion order” and “travel bans”, as well as other measures taken by the UAE, have had the purpose and effect of discriminating “indirectly” against persons of Qatari national origin in the historical-cultural sense, namely persons of Qatari birth and heritage, including their spouses, their children and persons otherwise linked to Qatar. According to Qatar, a measure may be considered as “based on” one of the grounds listed in Article 1 if, by its effect, it implicates a protected group. It adds that the Convention prohibits both direct discrimination, where a measure expressly distinguishes on the basis of one of the grounds of racial discrimination, and “indirect discrimination”, where a measure results in such a distinction by its effect. As part of the latter claim, Qatar complains of official statements critical of Qatar, including the 6 June 2017 statement of the Attorney General of the UAE, which mentioned criminal penalties for any expression of sympathy towards Qatar. Qatar adds that the UAE has failed to comply with CERD by encouraging and failing to supress anti-Qatari hate speech and propaganda. The Applicant emphasizes that its complaints are based not on a minimal difference in the treatment of Qatari citizens in the area of immigration controls, but on comprehensive, serious and co-ordinated [108] discriminatory acts resulting in discrimination against persons of Qatari national origin in the historical-cultural sense, in particular on the basis of their traditions, culture, accent or dress.

• 110. According to the UAE, there is no question of “indirect” racial discrimination in the present case. It adds that this is not how Qatar presented its complaints in its Application instituting proceedings or in its offer to negotiate dated 25 April 2018, which concerned allegedly discriminatory policies directed at Qatari citizens and companies on the sole basis of their Qatari nationality in violation of CERD. It further states that the notion of “indirect discrimination”, in the context of the [Page 178] present Convention, is more specific than in other human rights treaties, since it refers solely to measures which are not discriminatory at face value but are discriminatory in fact and effect. The UAE observes that the 6 June 2017 statement by its Attorney General was made in the context of existing legislation, i.e. Federal Decree-Law No 5 on Combating Cybercrimes dated 13 August 2012, and that there was no criminalizing of sympathy for Qatar. The UAE submits that the various allegations relating to its failure to suppress statements critical of Qatar or the actions of its Government, even if they were true, do not fall within the scope ratione materiae of the Convention since it does not constitute racial discrimination on the grounds of race, colour, descent, or national or ethnic origin.

  * *

• 111. The Court recalls that it has already found that the “expulsion order” and “travel bans” of which Qatar complains as part of its first claim do not fall within the scope of CERD, since these measures are based on the current nationality of Qatari citizens, and that such differentiation is not covered by the term “national origin” in Article 1, paragraph 1, of the Convention (see paragraph 105 above). The Court will now turn to the question whether these and any other measures as alleged by Qatar are capable of falling within the scope of the Convention, if, by their purpose or effect, they result in racial discrimination against certain persons on the basis of their Qatari national origin.

• 112. The Court first observes that, according to the definition of racial discrimination in Article 1, paragraph 1, of CERD, a restriction may constitute [109] racial discrimination if it “has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. Thus, the Convention prohibits all forms and manifestations of racial discrimination, whether arising from the purpose of a given restriction or from its effect. In the present case, while the measures based on current Qatari nationality may have collateral or secondary effects on persons born in Qatar or of Qatari parents, or on family members of Qatari citizens residing in the UAE, this does not constitute racial discrimination within the meaning of the Convention. 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. [Page 179] 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.

• 113. It follows from the above that the Court does not have jurisdiction ratione materiae to entertain Qatar’s third claim, since the measures complained of therein by that State do not entail, either by their purpose or by their effect, racial discrimination within the meaning of Article 1, paragraph 1, of the Convention.

D. General conclusion

• 114. In light of the above, the Court concludes that the first preliminary objection raised by the UAE must be upheld. Having found that it does not have jurisdiction ratione materiae in the present case under Article 22 of the Convention, the Court does not consider it necessary to examine the second preliminary objection raised by the UAE. In accordance with its jurisprudence, when its jurisdiction is challenged on diverse grounds, the Court is “free to base its decision on the ground which in its judgment is more direct and conclusive” (Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, ICJ Reports 2000, p. 24, para. 26; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, ICJ Reports 1978, p. 17, para. 40; Certain Norwegian Loans (France v. Norway), Judgment, ICJ Reports 1957, p. 25).

  *

  * *

• [110] 115. For these reasons,

  The Court,

  • (1) By eleven votes to six,

    Upholds the first preliminary objection raised by the United Arab Emirates;

    in favour: Vice-President Xue; Judges Tomka, Abraham, Bennouna, Donoghue, Gaja, Crawford, Gevorgian, Salam; Judges ad hoc Cot, Daudet;

    against: President Yusuf; Judges Cançado Trindade, Sebutinde, Bhandari, Robinson, Iwasawa;

  • [Page 180] (2) By eleven votes to six,

    Finds that it has no jurisdiction to entertain the Application filed by the State of Qatar on 11 June 2018.

    in favour: Vice-President Xue; Judges Tomka, Abraham, Bennouna, Donoghue, Gaja, Crawford, Gevorgian, Salam; Judges ad hoc Cot, Daudet;

    against: President Yusuf; Judges Cançado Trindade, Sebutinde, Bhandari, Robinson, Iwasawa.

  President Yusuf appends a declaration to the Judgment of the Court; Judges Sebutinde, Bhandari and Robinson append dissenting opinions to the Judgment of the Court; Judge Iwasawa appends a separate opinion to the Judgment of the Court; Judge ad hoc Daudet appends a declaration to the Judgment of the Court.

I. Introduction

• 1. I disagree with the conclusions of the Court and the reasoning of the majority on two interrelated issues dealt with in the Judgment: (a) the determination of the subject-matter of the dispute; and (b) the jurisdiction ratione materiae of the Court with regard to what is referred to as “indirect discrimination”.

• 2. On the first issue, the entire reasoning of the Judgment turns on the concept of “nationality”, without taking adequately into consideration Qatar’s claims regarding racial discrimination on the basis of “national origin”. By focusing almost exclusively on the question of nationality, the formulation of the object of the claim chosen by the Applicant is ignored, leading to the mischaracterization of the subject-matter of the dispute. As discussed below, this approach is inconsistent with the jurisprudence of the Court on the determination of the subject-matter of the dispute.

• 3. Secondly, apart from the fact that the above mischaracterization results in an erroneous conclusion on the jurisdiction of the Court, the majority also finds that some of the measures complained of by Qatar, which are referred to as “indirect discrimination” in the Judgment, do not fall within the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “CERD” or the “Convention”), even if they have the purpose or effect [Page 181] of nullifying or impairing the rights and freedoms of persons of Qatari national origin. There is, however, no meaningful analysis in the Judgment to support such a statement.

[112] II. The subject‑matter of the dispute

1. 4. Qatar has consistently claimed that the measures adopted on 5 June 2017 by the United Arab Emirates (hereinafter the “UAE”) against Qataris amount to a “distinction, exclusion, restriction or preference based on … national … origin” both in purpose and in effect within the meaning of Article 1, paragraph 1, of CERD. In its Application (AQ), Qatar argued that “[t]he UAE has enacted and implemented a series of discriminatory measures directed at Qataris based expressly on their national origin” (AQ, para. 3; see also paras. 34, 44, 54, 58, 62-3, 65(a) and 66(a)); that the “blanket expulsion of Qataris from the UAE and the ban on entry by Qataris into the UAE discriminate against Qataris on the basis of national origin” (ibid., para. 59); that “[t]he UAE has also enacted various measures interfering with rights to property based on Qatari national origin” (ibid., para. 44; see also para. 63); and that “[t]he UAE has … unlawfully targeted Qataris on the basis of their national origin” (ibid., para. 54).

2. 5. Similar statements are made by the Applicant in its Memorial (MQ) and in its Written Statement (WSQ), clarifying that its claims were predicated on “national origin” both in purpose and in effect (MQ, paras. 1.2, 1.8, 1.11‑1.13, 1.15, 1.23, 1.25, 3.5, 3.21, 3.24 and 3.86 to 3.113), and alleging that the measures adopted by the UAE were “discriminatory in both purpose and effect, by intentionally targeting and having a disproportionately negative impact on persons of Qatari ‘national origin’ in the historical-cultural sense, irrespective of their present nationality” (WSQ, para. 1.18). Moreover, during the oral proceedings, Qatar explained that it “has from the beginning framed its case as one of discrimination ‘based on’ national origin, including in the sense of intentional targeting and of disparate impact” (CR 2020/7, p. 45, para. 40 (Amirfar)).

3. 6. Instead of paying particular attention to the above formulation of the dispute by the Applicant, as the Court has always done in determining the subject‑matter of the dispute, the majority frames the subject-matter of the dispute in a manner totally disconnected from the Applicant’s written and oral pleadings. For example, after quoting paragraph 2.6 of Qatar’s Written Statement, which refers to acts and omissions of the UAE that “discriminate against Qataris on the basis of [Page 182] national origin” (paragraph 44 of the Judgment), the Judgment surprisingly states that “[a]s can be seen from Qatar’s characterization of the subject-matter of the dispute (see paragraph 44 above), Qatar makes three claims of racial discrimination” (paragraph 56 of the Judgment). The Judgment then proceeds to make an artificial classification of Qatar’s claims, the first category of which is purportedly a “claim arising out of the ‘travel bans’ and ‘expulsion order’, which make express reference to Qatari nationals” (ibid.). However, the text of Qatar’s Written Statement, quoted in paragraph [113] 44 of the Judgment, and to which reference is made in paragraph 56, does not mention even once the word “nationality”, while it clearly explains that the alleged acts and omissions of the UAE discriminate against Qataris “on the basis of national origin”. Nor does this text provide a basis for the classification of Qatar’s claims into the three categories indicated in the Judgment.

4. 7. It is true that Qatar argued in its pleadings that the concept of “national origin” in Article 1, paragraph 1, of CERD encompasses discrimination based on nationality. Qatar based such interpretation on General Recommendation XXX of the CERD Committee, which reads as follows:

   Under the Convention, 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.

   (CERD Committee, General Recommendation XXX on Discrimination against Non-Citizens, UN doc. CERD/C/64/Misc.11/rev.3 (2004), para. 4.)

5. 8. In General Recommendation XXX, the CERD Committee seems to suggest that a measure that seeks to differentiate between individuals on the basis of their current nationality might, deliberately or inadvertently, have a disproportionately adverse impact on a group of people having a common “national or ethnic origin”, taking into account the objective underlying that measure and the criteria chosen for differentiation, or may not be applied pursuant to a legitimate aim, in which case it would constitute discrimination under CERD.

6. 9. The Court may endorse such interpretation or may decide, as the majority appears to favour in the present Judgment, that the term “national origin” cannot encompass measures predicated on current nationality. In either case, it cannot be held, on the basis of the written and oral pleadings of the Applicant, that the claims of Qatar mostly relate to racial discrimination on grounds of current nationality, and [Page 183] that consequently they fall outside the scope of the Convention as such. The content of those pleadings clearly indicates otherwise.

7. 10. The insistence of the majority on characterizing the subject‑matter of the dispute in a manner which does not take into consideration the actual formulation put forward by the Applicant in its written and oral pleadings departs from a long‑standing jurisprudence of the Court referred to in paragraph 42 of the Judgment itself. According to this jurisprudence, it is for the Court to determine on an objective basis the subject‑matter of the dispute between the Parties, “while giving particular attention to the formulation of the dispute chosen by the applicant” (Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, ICJ Reports 2015 (II), p. 602, para. 26; Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ Reports [114] 2007 (II), p. 848, para. 38; Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, ICJ Reports 1998, p. 448, para. 30).

8. 11. Had the majority applied this jurisprudence to the present case, it would have come to the conclusion that the subject-matter of the dispute relates to “the interpretation or application” of CERD, and that Qatar’s claims fall squarely within the scope of Article 1, paragraph 1, of the Convention, since those claims concern alleged measures of racial discrimination on grounds of “national origin”.

III. The jurisdiction of the Court with regard to “indirect discrimination”

• 12. According to the artificial classification of Qatar’s claims mentioned above (para. 6), the only claim that is described as relating to discrimination on grounds of national origin is the so‑called claim of “indirect discrimination”, as opposed to “direct” discrimination on the basis of nationality; a distinction which has no basis in the text of the Convention. However, even in the case of this claim, the majority concludes that,

  In the present case, while the measures based on current Qatari nationality may have collateral or secondary effects on persons born in Qatar or of Qatari parents, or on family members of Qatari citizens residing in the UAE, this does not constitute racial discrimination within the meaning of the Convention. 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 [Page 184] 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.

  (Paragraph 112 of the Judgment.)

  The reasons of my disagreement with this sweeping statement are set out below.

• 13. First, it is rather odd to find in a judgment on preliminary objections an attempt at a factual assessment of whether the measures complained of actually constitute racial discrimination under CERD. In a very recent judgment of the Court dealing also with jurisdiction ratione materiae under CERD, it was clearly stated as follows:

  In order to determine whether it has jurisdiction ratione materiae under CERD, the Court does not need to satisfy itself that the measures [115] of which Ukraine complains actually constitute “racial discrimination” within the meaning of Article 1, paragraph 1, of CERD. Nor does the Court need to establish whether, and, if so, to what extent, certain acts may be covered by Article 1, paragraphs 2 and 3, of CERD. Both determinations concern issues of fact, largely depending on evidence regarding the purpose or effect of the measures alleged by Ukraine, and are thus properly a matter for the merits, should the case proceed to that stage.

  (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2019 (II), p. 595, para. 94.)

  In the present case, however, issues of fact, which are normally a matter for the merits, appear to be summarily dismissed in a single paragraph at the jurisdictional stage of the proceedings.

• 14. Secondly, the majority offers no meaningful analysis to support the above-mentioned statement. The question whether or not the term “Qatari” is to be understood solely as synonymous to “current nationality” or as indicating “national origin”, or both, and whether as a consequence measures targeting “Qataris” come within the ambit of Article 1 of CERD, is a question of fact that should be addressed at the merits stage. In this connection, it is to be noted that the majority does not even acknowledge—let alone examine—the Expert Report adduced by the Applicant to establish that “Qataris” form, apart from a legal nationality, a socio-cultural national group distinct from the Emiratis (cf. MQ, paras. 3.94‑3.112; MQ, Vol. VI, Ann. 162, Expert Report of Dr J. E. Peterson dated 9 April 2019, paras. 28‑30; WSQ, para. 2.121).

• [Page 185] 15. Thirdly, the “Court’s view” cannot simply be asserted. It needs to be based on legal and factual analysis. This is not the case here. The fact that Article 1, paragraph 1, of CERD distinguishes between “purpose” and “effect” suggests that, under CERD, discrimination may also derive from the collateral effects of the measure on a particular group, without having to establish a discriminatory purpose or intent. As the CERD Committee observed in its General Recommendation XIV,

  particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.

  (CERD Committee, General Recommendation XIV on Article 1, Paragraph 1, of the Convention, UN doc. A/48/18 (1993), p. 115, para. 2.)

• [116] 16. Thus, a measure may amount to de facto racial discrimination when it has a disproportionate effect on a group of people having a common “national or ethnic origin”, regardless of whether that measure was intended to target a particular “nationality”. This is essentially a question of fact and may only be established after having heard both Parties in the merits phase. It cannot be used at this stage of the proceedings to justify a finding that the measures complained of by Qatar fall outside of the scope of the jurisdiction of the Court, particularly when they are alleged to have the purpose or effect of nullifying or impairing the rights and freedoms of persons of Qatari national origin.

• 17. The determination of the jurisdiction of the Court ratione materiae does not require the Court to satisfy itself at this preliminary stage that the measures complained of by the Applicant constitute racial discrimination within the meaning of Article 1, paragraph 1, of the Convention. What matters is whether the measures complained of by Qatar “are capable of having an adverse effect on the enjoyment of certain rights protected under CERD” (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2019 (II), p. 595, para. 96; see also Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, ICJ Reports 1996 (II), p. 820, para. 51).

• 18. It is my view that the measures complained of by Qatar were capable of having such an adverse effect on persons of Qatari national origin, and that the Court should have left the examination of the actual effect of these measures for the merits stage.

I. Introduction

• 1. I have not voted with the majority in paragraph 115, as I disagree with the Court’s conclusion in paragraphs 113 and 114 of the Judgment. In my respectful view, the first preliminary objection of the United Arab Emirates (hereinafter the “UAE”) does not, in the circumstances of the present case, have an exclusively preliminary character and should be joined to the merits, pursuant to the provisions of Article 79ter, paragraph 4, of the Rules of Court (as amended on 21 October 2019). That provision requires that: “After hearing the parties, the Court shall decide upon a preliminary question or uphold or reject a preliminary objection. The Court may however declare that, in the circumstances of the case, a question or objection does not possess an exclusively preliminary character.” (Emphasis added.)

• [118] 2. In my view, the majority should not have rushed to conclude that Qatar’s claims fall outside the scope of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “the CERD”) based on the pleadings of the Parties at this early stage of the proceedings, but should have carefully examined the evidence during the merits stage, before reaching a conclusion one way or the other. In particular, the question of whether or not the measures taken by the UAE against Qatar and Qataris on 5 June 2017 had “the purpose or effect of racial discrimination” within the meaning of Article 1, paragraph 1, of the CERD, is a delicate and complex one that can only be determined after a detailed examination of the evidence and arguments of the Parties during the merits stage. Because of the approach taken by the majority, it is regrettable that the other objections raised by the UAE were also not considered. In this dissenting opinion, I endeavour to show why the first preliminary objection of the UAE does not, in the circumstances of the present case, have an exclusively preliminary character and should instead, be joined to the merits. I also opine on the other preliminary objections raised by the UAE.

II. The submissions of the Parties

III. The Court’s jurisdiction under Article 22 of the CERD

• 9. Article 22 of the CERD provides as follows:

  Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention shall, at the request of any of the parties to the dispute, [122] be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

  (Emphasis added.)

• 10. In light of the written and oral arguments raised by the Parties, a determination of whether or not the Court has jurisdiction ratione materiae to entertain the claims of Qatar pursuant to Article 22 of the CERD depends on the determination of the following factors, namely:

  • (a) What is the subject-matter of the dispute between Qatar and the UAE?

  • (b) Does the dispute concern the interpretation or application of the CERD within the meaning of Article 22 of that Convention or do Qatar’s claims actually fall outside the scope of the CERD by virtue of the exceptions contemplated in Article 1, paragraphs 2 or 3?

  • (c) If so, did Qatar comply with the procedural requirements stipulated in Article 22 of CERD or alternatively did the Parties agree to another mode of settling their dispute, before seising the Court?

  • (d) Lastly, are the claims of Qatar admissible?

I will briefly examine each of these in turn, starting with the first.

IV. Conclusion

• 36. In conclusion, the first preliminary objection of the UAE does not possess an exclusively preliminary character and should be joined to the merits. The second and third preliminary objections of the UAE should be dismissed and the Court should find that it has jurisdiction and that Qatar’s claims are admissible.

A. Subject-matter of the dispute between Qatar and the UAE

• 2. The case of Qatar is based on a series of measures taken by the UAE against Qatar, Qatari nationals and individuals of Qatari national origin on 5 June 2017 and the days that followed.Footnote ¹ These measures, which were accompanied by the severing of diplomatic relations with Qatar, fell within the following categories:

  • (a) requirement that all Qatari residents and visitors leave the UAE in 14 days, as well as a ban on Qatari nationals from entering the UAE. This was subsequently modified to a requirement of permission for entry of Qatari nationals into the UAE;

  • [134] (b) closure of land borders, airspace and seaports of the UAE to all Qatari nationals and Qatari means of transportation; and

  • [Page 201] (c) suppression of Qatari media outlets and speech deemed to support Qatar, and the enactment of measures “perpetuating, condoning, and encouraging anti-Qatari hate propaganda”.Footnote ²

• 3. It is recalled that the Court is to objectively determine the subject-matter of the dispute while giving particular attention to the formulation of the dispute chosen by the Applicant, identifying the object of those claims, and taking into consideration the written and oral pleadings of the Parties.Footnote ³ Accordingly, the disagreements between Qatar and the UAE, with respect to the UAE’s alleged violation of obligations under CERD fall under three heads of claims which form the subject-matter of the dispute as follows:

  • (a) the first is the claim by Qatar that the “travel bans” and “expulsion order” by their express reference to Qatari nationals and Qatari residents and visitors discriminate against Qataris on the basis of their national origin;

  • (b) the second is the claim by Qatar arising out of the restrictions on Qatari media corporations; and

  • (c) the third is the claim by Qatar that, through these measures, the UAE has engaged in “indirect discrimination” against persons of Qatari national origin.

• 4. The jurisdiction of the Court in the present case is based on Article 22 of CERD. As per the test for jurisdiction ratione materiae laid down by the Court in its previous cases, the Court needs to determine whether it can be established that the “alleged violations … are capable of falling within the provisions of the [CERD] and whether, as a consequence … the dispute is one which the Court has jurisdiction to entertain”.Footnote ⁴ In order to invoke the Court’s jurisdiction under Article 22 of CERD, the discriminatory measures allegedly promulgated by the UAE must fall within one of the prohibited categories of “racial discrimination”, [135] as defined under Article 1, paragraph 1, of CERD, which provides:

  [Page 202] In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

• 5. Qatar has consistently claimed that the alleged acts of the UAE amount to a “distinction, exclusion, restriction or preference based on … national … origin” within the meaning of Article 1, paragraph 1, of CERDFootnote ⁵ and thus within the compromissory clause contained in Article 22 of CERD. The UAE, on the other hand, argues there is a crucial jurisdictional flaw in the case, that these measures differentiate between individuals on the basis of their current nationality, which is not included within the scope of the term “national origin” in Article 1, paragraph 1, of CERD.Footnote ⁶ In its first preliminary objection to the jurisdiction of the Court, the UAE argues that the dispute falls outside of the scope ratione materiae of CERD.

• 6. Accordingly, at this preliminary stage, the Court is called upon to interpret whether the term “national origin”, as contained in Article 1, paragraph 1, of CERD, encompasses current nationality.

B. The term “national origin” under Article 1, paragraph 1, of CERD in accordance with its ordinary meaning

• 7. The customary international law on the rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties (hereinafter the “VCLT”) is applicable to the interpretation of the terms of CERD. Article 31, paragraph 1, of the VCLT stipulates that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.Footnote ⁷

• 8. The majority takes the following position regarding the ordinary meaning of the term “national origin” in paragraph 81 of the Judgment:

  the definition of racial discrimination in the Convention includes “national or ethnic origin”. These references to “origin” denote, respectively, [136] a person’s bond to a national or ethnic group at birth, whereas nationality is a [Page 203] legal attribute which is within the discretionary power of the State and can change during a person’s lifetime … The Court notes that the other elements of the definition of racial discrimination, as set out in Article 1, paragraph 1, of the Convention, namely race, colour and descent, are also characteristics that are inherent at birth.

• 9. In its attempt to distinguish between “nationality” and “national origin”, the majority highlights the immutable nature of the meaning of “national origin” and frames it in opposition to the transient nature of the meaning of “nationality”. In doing so, the majority attempts to allude that the two terms are fundamentally disparate. As a result of this approach, the Judgment insufficiently delineates the ordinary meaning of the term “national origin” and thereby reaches no real consensus on its meaning for the reasons set out below.

• 10. The term “national origin” presents an amalgamation of the words “national” and “origin”. The ordinary meaning attributable to these two words, read conjunctively, would have led to a more harmonious interpretation of its meaning as Article 31, paragraph 1, of the VCLT stipulates. When the ordinary meaning of the words “national” and “origin” are analysed to determine the meaning of the term “national origin”, it is evident that the term is capable of being construed in both of the ways argued by the Parties. It can either carry the meaning attributed to it by Qatar, that is of nationality and of “relat[ing] to the country or nation where a person is from”,Footnote ⁸ or that argued by the UAE, that is of an “association with a nation of people, not a State”, which is distinct from nationality.Footnote ⁹ As a general proposition, in my view, the definitions of the two words indicate that “national origin” refers to a person’s belonging to a country or nation. Belonging in this sense may be long standing or historical, and defined by ancestry or descent, or it may be confirmed by the legal status of nationality or national affiliation. Thus, current nationality, even if considered in a purely legal sense to be within the discretion of the State and subject to change over a person’s lifetime, is in any event encompassed within the broader term “national origin”. Since there is no doubt that these terms coincide, it is difficult to simply distinguish one from the other solely on the basis relied upon in paragraph 81 of the Judgment.

• 11. Furthermore, the Judgment’s attempt to distinguish between “nationality” and “national origin” becomes more complex and difficult to differentiate on the basis of immutability in the context of countries [Page 204] [137] where nationality is based on jus sanguinis. Where nationality follows a jus sanguinis model, as is the case in many Gulf States, nationality coincides with national origin. Under the jus sanguinis model, in Qatar, “nationality is conferred by parentage—and naturalization is rare … the vast majority of Qatari nationals, including those affected by the measures, were born Qatari nationals and are Qatari in the sense of heritage—in other words, of Qatari ‘national origin’”.Footnote ¹⁰ Nationality in this context is as immutable as “national origin” and is a characteristic that is inherent at birth contrary to the Court’s assertion in paragraph 81. When the UAE adopted measures targeting “Qatari residents and visitors” and “Qatari nationals”, they inevitably also affected persons of Qatari national origin since Qatari nationals are primarily persons of Qatari heritage.

C. The context of Article 1, paragraph 1, of CERD

• 12. The ordinary meaning of a term in a treaty is to be determined in light of its context and not in the abstract.Footnote ¹¹ Under Article 31, paragraph 2, of the VCLT, the context for interpretation purposes includes, the text of the treaty, its preamble and annexes. In its contextual reading of the term “national origin”, in light of the object and purpose of CERD, in paragraph 83 of the Judgment, the Court begins its reasoning by acknowledging that any legislation concerning nationality, citizenship or naturalization by States Parties would not be affected by the provisions of CERD provided that they do not discriminate against any particular nationality (Article 1, paragraph 3, of CERD). However, in its conclusion on this point, the Judgment seems to rely solely on the broader terminology found in Article 1, paragraph 2, of CERD which expressly excludes “from the scope of the Convention … differentiation between citizens and non-citizens”. Consequently, to the exclusion of the prohibition of discrimination “against any particular nationality” in Article 1, paragraph 3, of CERD, the Judgment concludes that

  such express exclusion from the scope of the Convention of differentiation between citizens and non-citizens indicates that the Convention does not prevent States parties from adopting measures that restrict the right of [Page 205] non-citizens to enter a State and their right to reside there—rights that are in dispute in this case—on the basis of their current nationality

  (para. 83).

• [138] 13. I find it difficult to concur with a contextual reading that allows differentiation between citizens and non-citizens, as well as particular groups of non-citizens on the basis of their current nationality. If one is to pay close attention to Article 1, paragraphs 2 and 3, of CERD—the provisions which form the context of Article 1, paragraph 1, of CERD—they do not seem to envisage broad and unqualified distinctions to be drawn between citizens and non-citizens.

• 14. Article 1, paragraph 1, of CERD provides a broad definition of racial discrimination which includes discrimination based on “national origin”. The plain text of CERD makes it clear that this definition is to protect against “all forms” of racial discrimination. Article 1, paragraph 2, in functional terms, establishes an exception to the broader principle contained in Article 1, paragraph 1, of CERD, by permitting a distinction to be drawn between citizens and non-citizens. However, this exception is limited by the object and purpose of the Convention, as made clear in its preamble and operative provisions, to eliminate racial discrimination in all its forms and manifestations. This object and purpose cannot be furthered if States are permitted to draw broad and unqualified distinctions as have been drawn by the UAE through its measures vis-à-vis Qataris, Qatari nationals, residents and visitors. Second, Article 1, paragraph 3, establishes a further exception to Article 1, paragraph 1. Article 1, paragraph 3, while implicating the treatment of non-citizens, clarifies that a State can dictate how, in particular, non-citizens acquire or lose its nationality; however, it reinforces the aforesaid reading of the Convention through the explicit indication in its proviso that “such provisions [should] not discriminate against any particular nationality”.

• 15. Therefore, the context makes it clear that—even though nationality-based distinctions are specifically permitted by paragraphs 2 and 3 of Article 1 which permit distinctions between citizens and non-citizens—it cautions that even in making such permitted distinctions, “such provisions [should] not discriminate against any particular nationality” when considering non-citizens inter se. In my view, only such an interpretation would be consistent with the object and purpose of CERD to “eliminat[e] racial discrimination throughout the world in all its forms and manifestations”. To interpret “national origin” as entirely excluding nationality-based discrimination would, on the other hand, lead to absurd results.

D. The travaux préparatoires of CERD

• 16. When interpretation under Article 31 of the VCLT leaves the meaning ambiguous or obscure, or leads to manifestly absurd or unreasonable results, Article 32 of the VCLT provides that “[r]ecourse may be had to [139] supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion”. The Judgment, in paragraph 96, in reference to the amendment submitted by France and the United States of America and the subsequent withdrawal of the amendment, states that this

  was done in order to arrive at a compromise formula that would enable the text of the Convention to be finalized, by adding paragraphs 2 and 3 to Article 1 … As the Court has noted … paragraphs 2 and 3 of Article 1 provide that the Convention will not apply to differentiation between citizens and non-citizens and will not affect States’ legislation on nationality, thus fully addressing the concerns expressed by certain delegations, including those of the United States of America and France, regarding the scope of the term “national origin”.

• 17. The travaux préparatoires makes it clear that the term “national origin” should have a wider application than that envisaged by the majority in paragraph 96. The Judgment does not touch upon the fact that the nine-power compromise proposal, highlighted in this paragraph, was the result of the deliberate exclusion of certain proposed amendments which had the effect of excluding nationality from the purview of “national origin”. The debate on the term “national origin” indicates that the drafters of the Convention leaned towards rejecting the approach of excluding differential treatment on the basis of nationality from the purview of Article 1, paragraph 1, of CERD. The delegate of the United States of America for instance stated that “[n]ational origin differed from nationality in that national origin related to the past—the previous nationality or geographical region of the individual or his ancestors—while nationality related to the present status”.Footnote ¹² The delegate of France explained the specific meaning attributed to the word “nationality” in French legal terminology; that it was strictly understood to “cover all that concerned the rules governing the acquisition or loss of nationality and the rights derived therefrom”.Footnote ¹³ In the Third Committee of the United Nations [Page 207] General Assembly, the delegate of France, along with the United States of America, suggested an amendment which excluded the word nationality from the purview of the term “national origin”. If that joint amendment had been adopted, Article 1, paragraph 2, would have read as follows:

  [i]n this Convention the expression “national origin” does not mean, “nationality” or “citizenship”, and the Convention shall therefore not [140] be applicable to distinctions, exclusions, restrictions, or preferences based on differences of nationality of citizenship.Footnote ¹⁴

  The amendments proposed were all withdrawn subsequently in favour of a compromise which formed the final text of paragraphs 1, 2, and 3 of Article 1 of CERD.

• 18. Certain arguments during the debates of the Commission on Human Rights highlights the compromise that the meaning of “national origin” represents. The delegate of Lebanon argued that “[t]he convention should apply to nationals, non-nationals, and all ethnic groups, but it should not bind States Parties to afford the same political rights to non-nationals as they normally granted to nationals”.Footnote ¹⁵ The delegate of India proposed the deletion of the words “the right of everyone” in Article V, instead of altering the definition of “national origin”. This was for the purpose of leaving it for the States to decide for themselves whether the same guarantees were to be afforded to aliens and nationals.Footnote ¹⁶

• 19. The drafter’s rejection of the approach that excluded nationality-based discrimination in Article 1, paragraph 1, indicates that CERD’s inclusion of “national origin” protects against discrimination on the basis of current nationality. The rejection of the amendment proposed by France and the United States of America, which narrowed the definition of racial discrimination in Article 1, paragraph 1, indicates that the drafters adopted an approach whereby citizens and non-citizens were to be guaranteed the same rights, notwithstanding certain exceptions outlined in Article 1, paragraph 2, and Article 1, paragraph 3. It is particularly telling that this compromise was accepted [Page 208] by France and the United States of America as “entirely acceptable”. Such acceptance coupled with a reading of the travaux préparatoires as a whole makes it clear that the compromise does not indicate that nationality was to be left out of the scope of “national origin”; in fact, it only seems to allow States to reserve certain rights to their citizens.

• 20. In light of the foregoing, in my view, the ordinary meaning of the term “national origin” encompasses one’s nationality, including current nationality. The ordinary meaning in its context in light of CERD’s object [141] and purpose to eliminate “all forms” of racial discrimination converges to confirm that the term “national origin” encompasses current nationality. An interpretation that categorically excludes current nationality would undermine this object and purpose. Considering the fundamental ambiguity resulting from the approach adopted by the majority to determine the ordinary meaning, the travaux préparatoires reinforces the conclusion that CERD’s definition of racial discrimination should have a wide application. The travaux préparatoires thus confirms the ordinary meaning of “national origin” as encompassing current nationality.

E. The CERD Committee and its General Recommendation XXX, paragraph 4

• 21. In relation to the CERD Committee and its General Recommendation XXX, paragraph 4, the majority cites the Court’s observation in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010 (II), p. 664, para. 66 (hereinafter “Diallo”) that it is “in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee” and does not take into account the observation that it “should ascribe great weight” to interpretations by the independent body established for the purpose of supervising the application of the treaty concerned. The Judgment provides no compelling reason as to why it 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”—an assertion that both Parties appear to agree on. The functions carried out by the CERD Committee and the manner in which they are carried, as well as the composition of the Committee and its members offer insights as to why the majority should have taken account of General Recommendation XXX, paragraph 4.

• 22. The CERD Committee’s primary function is to analyse and comment on reports submitted to it by States Parties pursuant to [Page 209] Article 9, paragraph 1, of CERD. In reporting under Article 9, paragraph 1, of CERD, each State Party undertakes to submit a report on the legislative, judicial, administrative or other measures which it has adopted in relation to its obligations under CERD. Each dialogue with a State Party is followed by a set of concluding observations by the Committee which may contain statements of concern and recommendations for further action. This framework allows the CERD Committee to establish certain rules in dialogue, which include the establishment of the CERD’s rules of procedure, and the translation of general principles and rights enshrined in the Convention into rules applicable to problems faced in implementation. Under Article 14 of CERD, once a State declares that it recognizes the competence of the CERD Committee, it may receive and consider communications from individuals or groups of individuals within the jurisdiction [142] of that State claiming to be victims of a violation by that State of rights set forth in the Convention. The State is thereby obliged to revise its law or practice in light of the Committee’s findings. Through this framework of consistent dialogue with States, the CERD Committee is engaged in the development of consistent interpretations of CERD. Moreover, in the performance of its tasks, the CERD Committee has sought to act judicially since its very first meeting in 1970.Footnote ¹⁷ Furthermore, as per Article 8, paragraph 1, of CERD, the CERD Committee comprises of 18 experts, who are individuals of “high moral standing and acknowledged impartiality” and “who shall serve in their personal capacity”. These individuals fall into the category of the “most highly qualified publicists” in this field. General Recommendation XXX, paragraph 4, of the CERD Committee therefore offers a consistent interpretation of CERD by the most highly qualified publicists because of which it should have been ascribed great weight in the Court’s Judgment.

• 23. The Judgment further insufficiently addresses the jurisprudence of the Court which indicates the Court’s willingness to take into account the work of United Nations supervisory bodies of human rights treaties in its judgments in the past. While reference to external precedents is not a common feature of the Court’s case law, there is evidence of a change.Footnote ¹⁸ The clearest endorsement of such a supervisory [Page 210] body in the jurisprudence of the Court is contained in its 2010 merits Judgment in Diallo, p. 692, para. 165, subparas. 2 and 3. In Diallo, while finding that the Democratic Republic of the Congo had violated provisions of the International Covenant on Civil and Political Rights, 1966 (hereinafter the “ICCPR”) and the African Charter on Human and Peoples’ Rights, 1981 (hereinafter the “ACHPR”), the Court specifically pointed out that its interpretation of the provisions of the ICCPR and the ACHPR was “fully corroborated by the jurisprudence of the Human Rights Committee established by the [ICCPR] to ensure compliance with that instrument by the States parties”.Footnote ¹⁹ Subsequently, in the same Judgment, the Court noted that,

  [a]lthough the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight [143] to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty.Footnote ²⁰

• 24. I am therefore obliged to conclude that, since the Court ascribed great weight to the interpretations of the ICCPR by the Human Rights Committee, the body of independent experts that monitors the implementation of the ICCPR by its States Parties; there is no compelling reason for the Court not to have attached “great weight” to General Recommendation XXX, paragraph 4, of the CERD Committee, the independent body of experts established specifically to supervise the application of CERD. The necessity to consider General Recommendation XXX, paragraph 4, of the CERD Committee is reinforced by the observation in Diallo that “[t]he point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled”.Footnote ²¹

• 25. Furthermore, in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004 (I), pp. 179-80, paras. 109-12—(hereinafter “Construction of a Wall”)—while quoting from Human Rights Committee General [Page 211] Comment 27, paragraph 14, the Court stated that, the restrictions to the freedom of movement in Article 12, paragraph 3, of the ICCPR, “[a]s the Human Rights Committee put it”, “must conform to the principle of proportionality” and “must be the least intrusive instrument amongst those which might achieve the desired result”.Footnote ²² The Court thereby acknowledged that the derogatory measure in question had to be proportionate to the achievement of a legitimate aim. The principle of proportionality is found in all global and regional human rights instruments.Footnote ²³ It is also enshrined in the national constitutions of numerous States. It is generally couched in terms of requiring a justification from States for derogation from a fundamental human right or freedom. Such derogation ought to serve a legitimate aim and should be proportional to the achievement of that aim. General Recommendation XXX, paragraph 4, reflects this widely accepted principle. Considering its widespread acceptance, including in the Court’s own jurisprudence in Construction of a Wall, there appears to be no reason to disregard its application in the present case.

• [144] 26. I will proceed to make some observations on the relevance of General Recommendation XXX, paragraph 4, to the claims made by Qatar and the Court’s jurisdiction ratione materiae under Article 22 of CERD.

• 27. The CERD Committee adopted General Recommendation XXX on 1 October 2002. General Recommendation XXX, paragraph 4, provides that differential treatment 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”. Therefore, even if nationality-based discrimination were to be interpreted as falling within the meaning of “national origin”, the beneficial treatment of some categories of non-nationals by a State would not necessarily violate Article 1, paragraph 1, of CERD, provided these beneficial rights were granted to some nationalities pursuant to the legitimate aim of regional integration or friendly relations and were proportionate to the achievement of that aim. Such differential treatment would be unlikely to fall afoul of the restriction against [Page 212] nationality-based discrimination. To interpret “national origin” so that it entirely excludes nationality-based discrimination would, on the other hand, lead to incongruent results.

• 28. The UAE announced a series of measures with specific application to Qataris on the basis of their nationality and with the specific purpose of using such measures to “induc[e] Qatar to comply with its obligations under international law”. Accordingly, if nationality is determined to be a prohibited basis of discrimination under Article 1, paragraph 1, of CERD, distinctions on this basis are capable of falling within the provisions of CERD, when they do not fulfil “a legitimate aim, and are not proportional to the achievement of this aim”. The stated purpose of using such measures to induce compliance with unrelated treaty obligations appears neither legitimate nor proportionate, given the fundamental human rights claimed to have been affected. The alleged acts by the UAE thus disproportionately affect Qatari nationals and satisfy the conditions for exercise of the Court’s jurisdiction ratione materiae under Article 22 of CERD.

• 29. In light of the foregoing, in my considered opinion, CERD encompasses discrimination against a particular group of non-nationals on the basis of their current nationality, within the prohibition on discrimination based on “national origin” in Article 1, paragraph 1. As such, the measures adopted by the UAE which disproportionately affected individuals of Qatari nationality by explicitly discriminating against “Qatari nationals” and “Qatari residents and visitors”—in particular through the “expulsion order” and the “travel bans”, which form the first claim of Qatar, are capable of falling within the scope of CERD. Furthermore, the majority fails to identify that the 5 June 2017 statement affects “all Qatari residents and visitors”. Leaving aside “visitors”, “residents” is broad [145] enough to include not only Qatari nationals but also people of Qatari national origin. If the measures were to only affect Qatari nationals, the measures would have mentioned so explicitly. However, such terminology is not to be found. Thus, even from this perspective the measures are capable of falling within the protective scope of CERD.

• 30. Article 1, paragraph 1, of CERD defines “racial discrimination” as distinctions with either the “purpose or effect” of impairing the enjoyment of human rights. It is noted that the majority of Qatari nationals are defined by their Qatari heritage, ancestry or descent. The Qataris, in the sense of constituting a historical-cultural community undoubtedly fall within the scope of “national origin” as contained in Article 1, paragraph 1, of CERD. The ordinary meaning, in its context and in light of the object and purpose of CERD, and the travaux [Page 213] préparatoires of CERD also support this finding. As such, the discriminatory effect of the measures which forms the third claim of indirect discrimination, are capable of falling within the provisions of CERD. This is particularly so in relation to the adverse media coverage and the anti-Qatari propaganda that Qatar alleges. The effect of such broadcasts against Qatari nationals impair the enjoyment of rights by individuals of Qatari national origin. The attempt to limit these measures to nationality alone is untenable.

• 31. While a full assessment of these claims would appear more appropriate at the merits stage of the proceedings, at the jurisdictional stage, there is a sufficient basis to reject the first preliminary objection of the UAE.

Conclusion

• 32. In my view, Qatar’s submission that the term “national origin” encompasses differential treatment on the basis of current nationality is correct and, as a consequence, the dispute concerns the interpretation or application of CERD; the UAE’s case, which is grounded on its objections to the jurisdiction ratione materiae of the Court, on the basis that the contested measures do not fall within the scope of application of CERD, should therefore fail. Consequently, the Court has jurisdiction to entertain the Application filed by Qatar, on 11 June 2018, pursuant to the compromissory clause contained in Article 22 of CERD. The majority ought to have rejected the first preliminary objection of the UAE.

[Page 214] First preliminary objection

• 3. In paragraph 56 of the Judgment the Court refers to Qatar’s characterization of the dispute as follows:

  [t]he first is its claim arising out of the “travel bans” and “expulsion order”, which make express reference to Qatari nationals. The second is its claim arising from the restrictions on Qatari media corporations. Qatar’s third claim is that the measures taken by the UAE, including the measures on which Qatar bases its first and second claims, result in “indirect discrimination” on the basis of Qatari national origin.

• 4. The majority has wrongly concluded that the claims arising from the first and third measures do not fall within the provisions of the Convention.

Conclusion

• 29. In light of the foregoing, the first preliminary objection should have been rejected as the dispute between the Parties concerns the interpretation or application of the Convention, and the Court should have found that it has jurisdiction ratione materiae under Article 22 of CERD in respect of the Qatar’s first and third claims in its first preliminary objection.

I. Human rights of non-citizens under international law

• 4. The protection of the rights of non-citizens has a long history in international law, which pre-dates the protections accorded to States’ own nationals. In the nineteenth and early twentieth centuries, an international minimum standard of treatment of aliens developed in international law. By contrast, international law at that time contained few rules regulating States’ treatment of their own nationals, which was traditionally considered to be part of the internal affairs of States.

• 5. At the Paris Peace Conference held in 1919-1920, proposals were made to include in the Covenant of the League of Nations clauses on freedom of religion and racial equality. These proposals were ultimately defeated, and the Covenant failed to stipulate even minimum rules concerning human rights. Instead, a number of mostly Central and Eastern European States concluded treaties or made declarations committing themselves to protect minorities within their territories. In addition, the International Labour Organization, which was established in 1919, began adopting conventions on the rights of workers. Thus, while some efforts were made in the interwar period to protect human rights under international law, this protection was extended only to certain rights or covered only a limited number of States.

• 6. In 1945, this situation changed dramatically with the adoption of the Charter of the United Nations. The Charter was revolutionary in [Page 226] that it [159] not only included the promotion and encouragement of respect for human rights as one of the purposes of the Organization, but also declared that human rights were guaranteed for “all without distinction” (Art. 1, para. 3, and Art. 55(c)). The adoption of the Charter marked the beginning of a process of continual expansion of international human rights law.

• 7. In 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights (hereinafter the “UDHR”), which set out a catalogue of human rights to be protected by States under the Charter. Influenced by the idea of natural rights, it provided that “[a]ll human beings are born free and equal in dignity and rights” (Art. 1; emphasis added) and that “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (Art. 2; emphasis added). From the phrase “such as”, it is clear that the list of prohibited grounds of discrimination in Article 2 of the UDHR is illustrative, and not exhaustive. Moreover, the list includes the catch-all term “other status”. Thus, even though nationality is not expressly mentioned in the list of prohibited grounds, it may be concluded that discrimination based on nationality is prohibited by the UDHR and that non-citizens are also entitled to the human rights enshrined therein.

• 8. In 1966, the General Assembly adopted the International Covenant on Economic, Social and Cultural Rights (hereinafter the “ICESCR”) and the International Covenant on Civil and Political Rights (hereinafter the “ICCPR”). The ICCPR provides in Article 2, paragraph 1, that

  [e]ach State Party … undertakes to respect and to ensure to all individuals … the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

  (Emphasis added.)

  Article 26 of the ICCPR, a self-standing non-discrimination clause, contains comparable language. As with the UDHR, it may be concluded that, in principle, non-citizens are entitled to the human rights provided for in the ICCPR, and that the States Parties are prohibited from discriminating on the basis of nationality.

• 9. The wording used by the ICESCR is slightly different. Article 2, paragraph 2, provides that the States Parties “undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, [Page 227] religion, [160] political or other opinion, national or social origin, property, birth or other status” (emphasis added). The words “as to” are more restrictive than the words “such as” used in the UDHR and the ICCPR. Nevertheless, because the list of prohibited grounds of discrimination, like those in the UDHR and the ICCPR, contains the catch-all term “other status”, it may be concluded that this list is also illustrative, and not exhaustive. Moreover, Article 2, paragraph 3, provides that “[d]eveloping countries … may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals”. Interpreting this clause a contrario, it may be concluded that the human rights provided for in the ICESCR are also guaranteed in principle to non-nationals.

• 10. Regional conventions on human rights likewise contain non-discrimination clauses, such as Article 14 of the European Convention on Human Rights and Articles 1 and 24 of the American Convention on Human Rights. The lists of prohibited grounds of discrimination in these clauses also contain catch-all terms: “other status” in Article 14 of the European Convention and “other social condition” in Article 1 of the American Convention. Thus, these lists of prohibited grounds are equally considered to be illustrative, and not exhaustive. Accordingly, like the international conventions discussed above, regional conventions are understood to protect the rights of non-citizens.

• 11. The international human rights bodies and courts established by these treaties to monitor their implementation by States have confirmed that non-citizens are entitled to the human rights provided for therein and that discrimination based on nationality is prohibited.

• 12. With regard to the ICCPR, in 1986 the Human Rights Committee adopted General Comment No 15 on the position of aliens under the Covenant, in which it affirmed that “[i]n general, the rights set forth in the Covenant apply to everyone … irrespective of his or her nationality”, and that “the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens”.Footnote ¹

• 13. Subsequently, in a number of individual communication cases, the Human Rights Committee has held that discrimination based on nationality is prohibited by Article 26 of the ICCPR. In Gueye et al. v. France, [161] retired soldiers of Senegalese nationality who had served in the French Army prior to the independence of Senegal claimed that France was in breach of Article 26 because the pensions [Page 228] they received were inferior to those enjoyed by retired soldiers of French nationality. The Committee considered that this practice constituted discrimination based on nationality in violation of Article 26.Footnote ² The Committee also found violations of Article 26 in a number of cases brought against the Czech Republic. These cases concerned Czech nationals who had fled Czechoslovakia under communist pressure and had their property confiscated under the legislation then applicable. The Czech Restitution Act of 1991 provided for restitution of property or compensation, but only if a person was a citizen of the Czech and Slovak Republic and was a permanent resident in its territory. Persons who lost Czech citizenship after leaving the country submitted communications to the Committee, claiming that they had been discriminated against because of their lack of citizenship. The Committee found the condition of citizenship unreasonable and discriminatory, in violation of Article 26 of the ICCPR.Footnote ³

• 14. The Committee on Economic, Social and Cultural Rights (hereinafter the “CESCR”) has similarly confirmed that the ICESCR applies to non-citizens. In General Comment No 20 of 2009, the CESCR declared that “[t]he ground of nationality should not bar access to Covenant rights”, while noting that this was “without prejudice to the application of art. 2, para. 3, of the Covenant”. It confirmed that “[t]he Covenant rights apply to everyone including non-nationals”.Footnote ⁴

• 15. The monitoring bodies established by regional conventions on human rights have taken the same position. The European Court of Human Rights (hereinafter the “ECtHR”) has held that discrimination based on nationality is prohibited by the European Convention on [162] Human Rights.Footnote ⁵ So has the Inter-American Court of Human [Page 229] Rights (hereinafter the “IACtHR”) with regard to the American Convention on Human Rights.Footnote ⁶

• 16. Furthermore, the General Assembly of the United Nations adopted in 1985 the Declaration on the Human Rights of Individuals Who Are not Nationals of the Country in which They Live (resolution 40/144), which lists rights applicable to individuals present in States of which they are not nationals. A substantial number of the rights mentioned therein replicate provisions contained in the International Bill of Human Rights (the UDHR, the ICESCR and the ICCPR), emphasizing their applicability to non-citizens, albeit using somewhat different wording. This declaration provides further evidence that non-citizens are entitled to most of the human rights contained in these instruments.

• 17. While it is clear that non-citizens are entitled to human rights under international law, international law does allow States to draw distinctions between citizens and non-citizens in respect of certain rights, such as political rights and the right to enter a country. For example, Article 25 of the ICCPR provides that “[e]very citizen” shall have the right to take part in the conduct of public affairs, to vote and to be elected, and to have access to public service; and Article 12, paragraph 4, states that no one shall be arbitrarily deprived of the right to enter “his own country”. In General Comment No 15 of 1986, the Human Rights Committee acknowledged that “some of the rights recognized in the Covenant are expressly applicable only to citizens”.Footnote ⁷

• 18. In addition, international law allows States to draw distinctions between citizens and non-citizens in time of public emergency. Article 4, paragraph 1, of the ICCPR permits States, in time of public emergency, to take measures derogating from their obligations under the Covenant, provided such measures do not involve discrimination on the ground of “race, colour, sex, language, religion or social origin”. Neither “nationality” nor “other status” is included in this list. Since Article 4, paragraph 2, makes certain rights non-derogable even in time of public emergency, no one, including non-citizens, can be deprived of these non-derogable rights. With regard to the other rights, however, States are not prohibited from [163] introducing restrictions that apply only to non-citizens in time of public emergency.

• [Page 230] 19. Furthermore, even in respect of the rights to which non-citizens are entitled under international law, States are not prohibited from making certain distinctions based on nationality. The monitoring bodies established by the international and regional human rights treaties use similar frameworks to determine whether a distinction constitutes discrimination. A differentiation of treatment is considered to constitute discrimination, unless the criteria for such a differentiation are reasonable and objective; in other words, unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.Footnote ⁸ This general framework also applies to the question of whether particular distinctions based on nationality constitute discrimination. Thus, for instance, preferential treatment given to certain groups of non-citizens by virtue of international agreements may be considered reasonable and objective and therefore would not constitute discrimination.Footnote ⁹

• 20. The Committee on the Elimination of Racial Discrimination (hereinafter the “CERD Committee”), in its General Recommendation XXX on discrimination against non-citizens, took note of the aforementioned protections that international law provides to non-citizens.Footnote ¹⁰ Article 1, paragraph 2, of CERD provides that “[t]his Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens”. In the General Recommendation, the Committee stressed that “Article 1, paragraph 2 … should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in [the UDHR, the ICESCR and the ICCPR]”.Footnote ¹¹ Similarly, the Committee noted:

  Although some of [the rights listed in Article 5 of CERD], such as the right to participate in elections, to vote and to stand for election, [164] may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an obligation to guarantee equality between [Page 231] citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law.Footnote ¹²

• 21. As I will explain in more detail below, the present dispute concerns solely “the interpretation and application of [CERD]” and not other rules of international law. The Court has no jurisdiction to make determinations as to whether the measures taken by the UAE comply with other rules of international law.

II. “Racial discrimination” under the International Convention on the Elimination of All Forms of Racial Discrimination