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Published online by Cambridge University Press: 09 June 2021
On February 4, 2021, the International Court of Justice (ICJ) delivered its judgment on the preliminary objections raised by the United Arab Emirates (UAE) in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates). It upheld by eleven votes to six the first preliminary objection raised by the UAE and found that it has no jurisdiction to entertain the application filed by Qatar. The case was referred to the Court under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and relates to measures taken on June 5, 2017 by the UAE, along with Saudi Arabia, Bahrain, and Egypt, to cut diplomatic ties with Qatar and impose a blockade, including expelling all Qatari residents and visitors.
1 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. U.A.E.), Preliminary Objections, Judgment (Feb. 4, 2021), https://www.icj-cij.org/public/files/case-related/172/172-20210204-JUD-01-00-EN.pdf.
2 Id. ¶ 115.
3 Article 22 ICERD reads: “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.”
4 Article 1(1) 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.”
5 Article 11(1) reads: “If 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.”
6 Qatar v. U.A.E., Case No. CERD-ISC 2018/2 (Mar. 8, 2018).
7 Admissibility of the Inter-State Communication submitted by Qatar against the United Arab Emirates, Case No. CERD/C/99/4, Decision on Admissibility ¶ 63 (Aug. 27, 2019), https://www.ohchr.org/Documents/HRBodies/CERD/CERD-C-99-4.pdf.
8 CERD, General Recommendation XXX on Discrimination against Non-citizens, CERD/C/64/Misc.11/rev.3 (2004).
9 See Rep. of the Comm. on the Elimination of Racial Discrimination, U.N. Doc. A/75/18 (2019) ¶ 45, which lists the members of the ad hoc Conciliation Commission appointed by the Committee.
10 Qatar v. U.A.E., CR2020/7, p. 35 ¶ 6 (Sept. 2, 2020), https://www.icj-cij.org/public/files/case-related/172/172-20200902-ORA-01-00-BI.pdf.
11 Ahmadou Sadio Diallo (Rep. Guinea v. Dem. Rep. Congo), Judgment, 2010 I.C.J. Rep. 639, ¶ 66 (Nov. 30).
12 Qatar v. U.A.E., supra note 10, p. 47 ¶ 46.
13 Qatar v. U.A.E., supra note 1, p. 26 ¶ 81.
14 Id. p. 27 ¶ 83.
15 Id. p. 28 ¶ 87.
16 Id. Dissenting Opinion of Judge Robinson, ¶ 7.
17 Id. Dissenting Opinion of Judge Bhandari, ¶ 10; Dissenting Opinion of Judge Robinson, ¶ 7.
18 Id. Dissenting Opinion of Judge Robinson, ¶ 11.
19 Id. ¶ 13.
20 Id. p. 32 ¶ 101.
21 Id. Dissenting Opinion of Judge Bhandari, ¶ 21.
22 Id. Dissenting Opinion of Judge Robinson, ¶ 13.
23 Qatar v. U.A.E., CR2020/8 p. 18 ¶ 23 (Sept. 4, 2020), https://www.icj-cij.org/public/files/case-related/172/172-20200904-ORA-01-00-BI.pdf.
24 Decision of the ad hoc Conciliation Commission on the request for suspension submitted by Qatar concerning the interstate communication Qatar v. United Arab Emirates (March 15, 2021), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/1_Global/Decision_9381_E.pdf.
25 Id. ¶ 4.
26 Id. ¶ 5.
27 Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 933.
28 CERD's view of “national … origin” has also been articulated in the same terms in its admissibility decision in Qatar v. Kingdom of Saudi Arabia, a dispute that has not been before the Court, and is progressing in accordance with Articles 11–13. CERD, See Admissibility of the Inter- State Communication submitted by Qatar against the Kingdom of Saudi Arabia, CERD/C/99/6, ¶ 19 (Aug. 27, 2019). This communication has similarly been suspended but the ad hoc Conciliation Commission remains seized of the matter. See Decision of the ad hoc Conciliation Commission on the request for suspension submitted by Qatar concerning the interstate communication Qatar v. Kingdom of Saudi Arabia ¶ 5 (March 15, 2021), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/1_Global/Decision_9382_E.pdf.
29 They are interrelated in that the Articles 11–13 mechanism can serve to satisfy the “preconditions” of Article 22. They are independent in that both may be initiated and completed without any reference to the other, seen for example in Palestine v. Israel before the Committee, and Ukraine v. Russian Federation before the Court. Palestine v. Israel cannot come before the Court due to Israel's reservation to Article 22. Ukraine v. Russian Federation is at the merits stage before the Court without engaging the Articles 11–13 communications mechanism, Ukraine having satisfied the alternative Article 22 “precondition” of “negotiation.”
30 Judge Donoghue, Reflections on the 75th Anniversary of the International Court of Justice (Apr. 16, 2021), https://www.un.org/en/un-chronicle/reflections-75th-anniversary-internationalcourt-justice.
