The United Arab Emirates defeats the State of Qatar in the ICJ case concerning the Application of the CERD

The United Arab Emirates (the “UAE”) has defeated the State of Qatar (“Qatar”) in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates). On 4 February 2021, the International Court of Justice (the “Court”) issued a judgment (the “Judgment”) finding, by eleven votes to six, that it lacked jurisdiction ratione materiae to entertain Qatar’s claims because they fell outside the scope of application of the International Convention on the Elimination of All Forms of Racial Discrimination (the “CERD” or the “Convention”). Volterra Fietta is honoured to have been part of the legal team that successfully represented the UAE in this ground-breaking case.

This important Judgment clarifies States’ obligations under the CERD as well as that Convention’s scope of application. The Judgment appropriately distinguished the discretionary and changeable legal attribute of nationality from the inherent and immutable concept of “national origin”. In doing so, the Court confirmed that State measures and legislation differentiating between persons based on their current nationality do not constitute racial discrimination under the CERD. The Judgment also confirms that the CERD concerns only individuals or groups of individuals and does not apply to media or other types of corporations.

Factual and procedural background

On 5 June 2017, the UAE and multiple other States terminated diplomatic relations with Qatar. Many of those States, including the UAE, then undertook a series of measures against the Government of Qatar intended to induce it to comply with its legal obligations concerning the financing and support of terrorism.

On 11 June 2018, Qatar instituted proceedings before the Court against the UAE based on Article 36(1) of the Statute of the Court and Article 22 of the CERD. Qatar claimed that the measures taken by the UAE in relation to Qatari nationals and media corporations based on their nationality violated the UAE’s obligations under the CERD. Qatar further claimed that the measures gave rise to “indirect discrimination” against persons of Qatari national origin.

On 29 April 2019, the UAE asked the Court to declare that it lacked jurisdiction to address Qatar’s claims based on two preliminary objections. First, the UAE maintained that the Court lacked jurisdiction ratione materiae over those claims because the alleged acts did not fall within the CERD’s scope. Second, the UAE asserted that Qatar had failed to satisfy the procedural preconditions set out in CERD Article 22 to submit a dispute to the Court concerning the interpretation or application of that Convention.

The Court’s Judgment on Jurisdiction

In declining jurisdiction, the Court held that the terms “national or ethnic origin” in the definition of racial discrimination contained in CERD Article 1(1) do not encompass current nationality. In accordance with their ordinary meaning, the Court found that the CERD’s references to “origin” denote, respectively, a person’s bond to a national or ethnic group at birth, whereas nationality is a legal attribute that is within the discretionary power of the State and can change during a person’s lifetime. The Court drew further support from the object and purpose of the CERD, which seeks to eliminate all forms of racial discrimination against human beings based on real or perceived characteristics as of their origin, namely at birth. Thus, by applying the relevant customary rules on treaty interpretation, the Court found that the measures complained of by Qatar, which were based on the current nationality of its citizens, did not fall within the Convention’s scope of application.

The Court noted that, in its General Recommendation XXX, the Committee on the Elimination of Racial Discrimination (the “CERD Committee”) considered that “differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim”. However, relying on its judgment in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), the Court found that it was not obliged to model its own interpretation of the Convention on that of the CERD Committee. While the Court carefully considered the CERD Committee’s position, the Court found that the term “national origin” in Article 1(1) of the CERD does not encompass current nationality.

The Court also found that the jurisprudence of regional human rights courts on the meaning of “national origin” was of little help in the present case because the human rights instruments underlying that jurisprudence concern respect for human rights without distinction of any kind among their beneficiaries. By contrast, the CERD relates exclusively to prohibition of racial discrimination based on race, colour, descent, or national or ethnic origin.

The Court further noted that, when read in its context and in the light of the object and purpose of the Convention, the term “institutions” in the CERD refers to collective bodies or associations that represent individuals or groups of individuals. On that basis, the Court found that Qatar’s second claim, concerning Qatari media corporations, did not fall within the scope of the Convention.

Finally, the Court concluded that the UAE’s measures complained of by Qatar did 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. Thus, even if the measures of which Qatar complained in support of its “indirect discrimination” claim were to be proven on the facts, they would not be capable of constituting racial discrimination within the meaning of the CERD.

In light of the above, the Court upheld the UAE’s first preliminary objection. Having found that it did not have jurisdiction ratione materiae over the dispute, the Court did not consider it necessary to rule on the UAE’s second preliminary objection.

Conclusion

The Judgment is a ground-breaking public international law development as it clarifies States’ obligations under the CERD as well as that Convention’s scope of application. Importantly, the Judgment rightly preserves the sovereign power of the 182 CERD States Parties to regulate the right of non-citizens to enter or reside in those States’ territories. There remain, however, conflicting interpretations concerning the procedural preconditions that these States must satisfy to submit to the Court a dispute concerning the interpretation and application of the CERD.

You can see Volterra Fietta partner Robert Volterra pleading at the Court in the hearing for the UAE’s Provisional Measures application here and here.

For any queries regarding the content of this client alert, please contact Robert Volterra (robert.volterra@volterrafietta.com).

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