Order of 23 July 2018

INTERNATIONAL COURT OF JUSTICE
YEAR 2018
2018
23 July
General List
No. 172
23 July 2018
APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION
OF ALL FORMS OF RACIAL DISCRIMINATION
(QATAR v. UNITED ARAB EMIRATES)
REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES
ORDER
Present: President YUSUF; Vice-President XUE; Judges TOMKA, ABRAHAM, BENNOUNA,
CANÇADO TRINDADE, GAJA, SEBUTINDE, BHANDARI, ROBINSON, CRAWFORD,
GEVORGIAN, SALAM; Judges ad hoc COT, DAUDET; Registrar COUVREUR.
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of
the Rules of Court,
Makes the following Order:
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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”).
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:
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(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;
(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.”
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:
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(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 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.
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(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.”
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 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:
On behalf of Qatar: Mr. Mohammed Abdulaziz Al-Khulaifi,
Mr. Donald Francis Donovan,
Ms Catherine Amirfar,
Mr. Pierre Klein,
Lord Peter Goldsmith,
Mr. Lawrence H. Martin.
On behalf of the UAE: H.E. Mr. Saeed Ali Yousef Alnowais,
Mr. Alain Pellet,
Mr. Tullio Treves,
Mr. Simon Olleson,
Mr. Malcolm Shaw,
Mr. Charles L.O. Buderi.
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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, 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 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;
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(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
(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.
*
* *
I. PRIMA FACIE JURISDICTION
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 case (see,
for example, Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May 2017, I.C.J.
Reports 2017, p. 236, para. 15).
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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.
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, I.C.J. Reports 2017, p. 115, para. 22, citing
Interpretation of Peace treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. 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, I.C.J. 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 (Equatorial Guinea v. France),
Provisional Measures, Order of 7 December 2016, I.C.J. 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.).
* *
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19. Qatar contends that a dispute exists between the Parties concerning the interpretation and
application of CERD. It asserts that, beginning on 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 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 “to impose additional requirements on the entry or re-entry into [its]
territory by Qatari nationals”.
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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:
“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 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.
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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 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, I.C.J. 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.
* *
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,
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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.
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 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
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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 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
Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation), Preliminary Objections, Judgment, I.C.J. 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 37th 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.
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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, 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 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, I.C.J. Reports 2017, pp. 125-126, 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 to the extent that the dispute between the
Parties relates to the “interpretation or application” of the said Convention.
*
* *
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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.
II. THE RIGHTS WHOSE PROTECTION IS SOUGHT
AND THE MEASURES REQUESTED
43. The power of the Court to indicate provisional measures under Article 41 of the Statute
has as its object the preservation of the respective rights of the parties in a case, pending its
decision on the merits thereof. It follows that the Court 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 (see, for example, 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, I.C.J. Reports 2017, p. 126, para. 63).
44. At this stage of the proceedings, the Court, however, is not called upon to determine
definitively whether the rights which Qatar wishes to see protected exist; it need only decide
whether the rights claimed by Qatar on the merits, and for which it is seeking protection, are
plausible. Moreover, a link must exist between the rights whose protection is sought and the
provisional measures being requested (ibid., para. 64).
* *
45. In its Application, Qatar asserts rights under Articles 2, 4, 5, 6 and 7 of CERD. In its
Request for the indication of provisional measures, in order to identify the rights which it seeks to
protect pending a decision on the merits, Qatar refers to Articles 2, 4, 5 and 6 of the Convention
and, in the course of the oral proceedings on its Request, it also referred to Article 7 of the
Convention. In those hearings, Qatar asserted that the UAE was violating the Convention’s
prohibition on collective expulsion, interfering with Qataris’ basic human rights under Articles 2
and 5, inciting and failing to condemn racial hatred and prejudice under Articles 4 and 7, and
denying effective protection and remedies against acts of racial discrimination under Article 6.
- 16 -
46. Qatar states that the alleged rights are plausible in so far as they are “grounded in a
possible interpretation” of the treaty invoked. For Qatar, the definition of racial discrimination
under Article 1, paragraph 1, of the Convention “is a question of plausibility of the rights asserted”.
Qatar submits that “the measures imposed by the UAE on 5 June 2017 and thereafter make clear
their purpose: racial discrimination based on national origin”. In the second round of oral
observations, Qatar added that “the Convention cannot be read to exclude discriminatory conduct
based on Qatari national origin or nationality”. Qatar argues that its “claims that the UAE is
singling out Qataris and only Qataris en masse for discriminatory treatment raise plausible rights
supporting an indication of provisional measures”.
47. With regard to evidence adduced to demonstrate the plausibility of the rights it claims,
Qatar refers in particular to the December 2017 report of the Technical Mission despatched by the
Office of the United Nations High Commissioner for Human Rights (hereinafter “OHCHR”) which
concluded that the measures put in place by the UAE had “a potentially durable effect on the
enjoyment of the human rights and fundamental freedoms of those affected”. Qatar argues, in
conclusion, that the rights it claims clearly fulfil the condition of plausibility.
*
48. The UAE, for its part, contends that in making its claim, and in attempting to provide a
basis for the measures requested, Qatar seeks to give an unacceptably broad interpretation to a
number of the obligations enumerated in Article 5 of the Convention, and that, as a consequence,
the rights on which it seeks to rely are not plausible. It submits that the definition of “racial
discrimination” in Article 1, paragraph 1, of CERD does not apply to differences of treatment on
the basis of “present nationality” (see paragraph 24 above).
49. The UAE also argues that the lack of evidence supporting Qatar’s claims calls into
question the plausibility of the rights asserted by Qatar. In particular, it maintains that the report of
the Technical Mission of the OHCHR relates to events which occurred over seven months earlier
and that its relevance to the circumstances prevailing at this moment is highly questionable.
* *
50. The Court notes that CERD imposes a number of obligations on States parties with
regard to the elimination of racial discrimination in all its forms and manifestations. Article 1 of
CERD defines racial discrimination in the following terms:
- 17 -
“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”.
Articles 2, 4, 5, 6 and 7 of the Convention, invoked by Qatar, read as follows:
“Article 2
1. States Parties condemn racial discrimination and undertake to pursue by all
appropriate means and without delay a policy of eliminating racial discrimination in
all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination
against persons, groups of persons or institutions and to ensure that all public
authorities and public institutions, national and local, shall act in conformity with
this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial discrimination
by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental, national
and local policies, and to amend, rescind or nullify any laws and regulations which
have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means,
including legislation as required by circumstances, racial discrimination by any
persons, group or organization;
(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial
organizations and movements and other means of eliminating barriers
between races, and to discourage anything which tends to strengthen racial
division.
2. States Parties shall, when the circumstances so warrant, take, in the social,
economic, cultural and other fields, special and concrete measures to ensure the
adequate development and protection of certain racial groups or individuals belonging
to them, for the purpose of guaranteeing them the full and equal enjoyment of human
rights and fundamental freedoms. These measures shall in no case entail as a
consequence the maintenance of unequal or separate rights for different racial groups
after the objectives for which they were taken have been achieved.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
- 18 -
Article 4
States Parties condemn all propaganda and all organizations which are based on
ideas or theories of superiority of one race or group of persons of one colour or ethnic
origin, or which attempt to justify or promote racial hatred and discrimination in any
form, and undertake to adopt immediate and positive measures designed to eradicate
all incitement to, or acts of, such discrimination and, to this end, with due regard to the
principles embodied in the Universal Declaration of Human Rights and the rights
expressly set forth in article 5 of this Convention, inter alia:
(a) Shall declare an offence punishable by law all dissemination of ideas based on
racial superiority or hatred, incitement to racial discrimination, as well as all acts
of violence or incitement to such acts against any race or group of persons of
another colour or ethnic origin, and also the provision of any assistance to racist
activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and also organized and all other
propaganda activities, which promote and incite racial discrimination, and shall
recognize participation in such organizations or activities as an offence punishable
by law;
(c) Shall not permit public authorities or public institutions, national or local, to
promote or incite racial discrimination.
Article 5
In compliance with the fundamental obligations laid down in article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial discrimination
in all its forms and to guarantee the right of everyone, without distinction as to race,
colour, or national or ethnic origin, to equality before the law, notably in the
enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering
justice;
(b) The right to security of person and protection by the State against violence or
bodily harm, whether inflicted by government officials or by any individual group
or institution;
(c) Political rights, in particular the right to participate in elections  to vote and to
stand for election  on the basis of universal and equal suffrage, to take part in
the Government as well as in the conduct of public affairs at any level and to have
equal access to public service;
- 19 -
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the
State;
(ii) The right to leave any country, including one’s own, and to return to one’s
country;
(iii) The right to nationality;
(iv) The right to marriage and choice of spouse;
(v) The right to own property alone as well as in association with others;
(vi) The right to inherit;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
(i) The rights to work, to free choice of employment, to just and favourable
conditions of work, to protection against unemployment, to equal pay for
equal work, to just and favourable remuneration;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social security and social services;
(v) The right to education and training;
(vi) The right to equal participation in cultural activities;
(f) The right of access to any place or service intended for use by the general public,
such as transport, hotels, restaurants, cafés, theatres and parks.
Article 6
States Parties shall assure to everyone within their jurisdiction effective
protection and remedies, through the competent national tribunals and other State
institutions, against any acts of racial discrimination which violate his human rights
and fundamental freedoms contrary to this Convention, as well as the right to seek
from such tribunals just and adequate reparation or satisfaction for any damage
suffered as a result of such discrimination.
- 20 -
Article 7
States Parties undertake to adopt immediate and effective measures, particularly
in the fields of teaching, education, culture and information, with a view to combating
prejudices which lead to racial discrimination and to promoting understanding,
tolerance and friendship among nations and racial or ethnical groups, as well as to
propagating the purposes and principles of the Charter of the United Nations, the
Universal Declaration of Human Rights, the United Nations Declaration on the
Elimination of All Forms of Racial Discrimination, and this Convention.”
51. The Court recalls, as it did in past cases in which CERD was at issue, that there is a
correlation between respect for individual rights, the obligations of States parties under CERD and
the right of States parties to seek compliance therewith (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, I.C.J. Reports 2017, p. 135, para. 81).
52. The Court notes that Articles 2, 4, 5, 6 and 7 of CERD are intended to protect individuals
from racial discrimination. Consequently, in the context of a request for the indication of
provisional measures, a State party to CERD may avail itself of the rights under the
above-mentioned Articles only if the acts complained of appear to constitute acts of racial
discrimination as defined in Article 1 of the Convention.
53. In this regard, the Court recalls its conclusion that it need not decide at this stage of the
proceedings between the divergent views of the Parties on whether the expression “national . . .
origin” in Article 1, paragraph 1, of CERD encompasses discrimination based on “present
nationality” (see paragraph 27 above).
54. In the present case, the Court notes, on the basis of the evidence presented to it by the
Parties, that the measures adopted by the UAE on 5 June 2017 appear to have targeted only Qataris
and not other non-citizens residing in the UAE. Furthermore, the measures were directed to all
Qataris residing in the UAE, regardless of individual circumstances. Therefore, it appears that some
of the acts of which Qatar complains may constitute acts of racial discrimination as defined by the
Convention. Consequently, the Court finds that at least some of the rights asserted by Qatar under
Article 5 of CERD are plausible. This is the case, for example, with respect to the alleged racial
discrimination in the enjoyment of rights such as the right to marriage and to choice of spouse, the
right to education, as well as freedom of movement, and access to justice.
* *
- 21 -
55. The Court now turns to the issue of the link between the rights claimed and the
provisional measures requested.
* *
56. Qatar contends that there is clearly a link between all the measures requested and the
various rights arising out of CERD whose protection it seeks, including the general prohibition of
racial discrimination, the prohibition of hate speech, and the enjoyment of civil and political rights,
as well as economic, social and cultural rights referred to in Article 5 of the Convention.
*
57. The UAE, for its part, contends that the requisite link between the rights relied upon and
the measures sought is not present. In particular, it argues that the principal aim of the provisional
measures being requested is the overturning of the alleged limitations on the entry of Qatari
nationals to the UAE; however, according to the UAE, the measures sought are as such
insufficiently linked to the rights which Qatar asserts are at issue.
* *
58. The Court has already found (see paragraph 54 above) that at least some of the rights
asserted by Qatar under Article 5 of CERD are plausible. It recalls that Article 5 prohibits
discrimination in the enjoyment of a variety of civil and political rights and economic, social and
cultural rights. The Court considers that the measures requested by Qatar (see paragraph 11 above)
are aimed not only at ending any collective expulsion of Qataris from the territory of the UAE, but
also at protecting other specific rights contained in Article 5.
59. The Court concludes, therefore, that a link exists between the rights whose protection is
being sought and the provisional measures being requested by Qatar.
- 22 -
III. RISK OF IRREPARABLE PREJUDICE AND URGENCY
60. The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional
measures when irreparable prejudice could be caused to rights which are the subject of judicial
proceedings (see, for example, Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May
2017, I.C.J. Reports 2017, p. 243, para. 49; 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, I.C.J. Reports 2017, p. 136, para. 88).
61. However, 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 (Jadhav (India v.
Pakistan), Provisional Measures, Order of 18 May 2017, I.C.J. Reports 2017, p. 243, para. 50;
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, I.C.J.
Reports 2017, p. 136, para. 89). The condition of urgency is met when the acts susceptible of
causing irreparable prejudice can “occur at any moment” before the Court rules on the merits
(Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures,
Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1169, para. 90). The Court must therefore
consider whether such a risk exists at this stage of the proceedings.
62. The Court is not called upon, for the purposes of its decision on the request for the
indication of provisional measures, to establish the existence of breaches of CERD, but to
determine whether the circumstances require the indication of provisional measures for the
protection of rights under this instrument. It cannot at this stage make definitive findings of fact,
and the right of each Party to submit arguments in respect of the merits remains unaffected by the
Court’s decision on the request for the indication of provisional measures.
* *
63. Qatar submits that irreparable prejudice is the natural consequence of violations of the
rights before the Court in this case and that no decision of the Court on the merits  whenever it is
rendered  could “wipe out” all of this damage and “restore” the status quo ante. Qatar is of the
view that, in the present case, the Court does not need to determine whether there is a risk of
irreparable prejudice to those rights, since the evidence shows that this type of prejudice exists
today and continues to be manifest, as a result of the UAE’s refusal to comply with CERD. Qatar
thus emphasizes the continuous nature of the violations of the fundamental rights alleged, namely
the rights to movement and residence, family reunification, education, work, freedom of opinion
and expression, health, freedom of religious practice, private property and the right to access courts
in the UAE to protect Qatari property and assets or to challenge any discriminatory measures. Qatar
- 23 -
stresses that the “durable consequences” of the continuous violation of the right to movement and
residence on the right to work and to access property, as well as on the right to family reunification,
was acknowledged in the report of the Technical Mission despatched by the OHCHR and,
therefore, “cannot be questioned”. Citing a report of Amnesty International dated 5 June 2018,
Qatar asserts that, a year on, the situation has not improved and that residents of the region are still
left facing uncertain futures. Qatar concludes that, since the damage is present and ongoing, the
condition of imminence is also plainly fulfilled.
64. Qatar claims that the UAE has resisted all requests to terminate the discriminatory
measures. It refers in particular to the issuance by the UAE of thirteen demands on 23 June 2017,
supplemented by six demands on 5 July 2017, requesting, inter alia, that Qatar align itself with the
other Gulf and Arab countries militarily, politically, socially, and economically, as a precondition
for the lifting of the discriminatory measures. Qatar submits that, in doing so, the UAE has
aggravated the dispute. Qatar contends that, in light of the UAE’s refusal to suspend or withdraw
its illegal acts, the people of Qatar could see an indefinite violation of their rights and would suffer
damage and distress as a result. Accordingly, it considers that provisional measures are “urgently
required to compel the UAE to abide by its international obligations under the CERD”.
*
65. The UAE denies that there exists a risk of irreparable prejudice to the rights of the
Applicant under CERD. Challenging the reliance and independence of the evidence submitted to
the Court by Qatar, it asserts that Qataris continue to enjoy the full rights granted by law to all
residents of or visitors to the UAE. Although the UAE does not deny that it has severed relations
with Qatar due to national security concerns, in particular its alleged support for terrorism and
extremism, it asserts that the statement of 5 June 2017, whereby its Ministry of Foreign Affairs
announced that Qataris were to leave the UAE within 14 days and that they would be prevented
from entry, was carefully measured to have the least possible impact on the people of Qatar.
The UAE asserts that there were in fact no legal steps taken by its Government to deport Qataris
who remained after the 14-day period; restrictions were only imposed on Qataris wishing to enter
the UAE, who were required to seek prior permission, which was almost always granted. The UAE
adds that measures have been taken to deal with the problem of separation of families that include
Qataris. Thus, a presidential directive, issued on 6 June 2017, instructed the authorities to take into
account the humanitarian circumstances of UAE-Qatari mixed families, and a special telephone
line was established to deal with such cases and to ensure that appropriate action was taken. The
UAE argues that, even if the Court were to find that there is a risk of prejudice caused to the rights
alleged by Qatar as a result of the actions of the UAE, the prejudice would not be irreparable.
- 24 -
66. The UAE further asserts that the situation is not urgent as alleged by Qatar. In addition to
referring to the remedial measures already taken, as described in paragraph 65 above, it observes
that the Request for provisional measures was filed by Qatar on 11 June 2018, i.e. more than a year
after the Ministry of Foreign Affairs of the UAE made a statement asking Qatari nationals to leave
the country within 14 days.
* *
67. The Court considers that certain rights in question in these proceedings  in particular,
several of the rights stipulated in Article 5, paragraphs (a), (d) and (e), of CERD  are of such a
nature that prejudice to them is capable of causing irreparable harm (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, I.C.J. Reports 2017, p. 138,
para. 96). On the basis of the evidence presented to it by the Parties, the Court is of the opinion that
the situation of Qataris residing in the UAE prior to 5 June 2017 appears to remain vulnerable with
regard to their rights under Article 5 of the Convention.
68. In this regard, the Court observes that, following the statement of 5 June 2017, whereby
the Ministry of Foreign Affairs of the UAE announced that Qataris were to leave the territory
within 14 days and that they would be prevented from entry, many Qataris residing in the UAE at
that time appeared to have been forced to leave their place of residence without the possibility of
return. The Court notes that a number of consequences apparently resulted from this situation and
that the impact on those affected seem to persist to this date: UAE-Qatari mixed families have been
separated; 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 been denied equal access to tribunals and other
judicial organs in the UAE.
69. As the Court has already observed, individuals forced to leave their own place of
residence without the possibility of return could, depending on the circumstances, be subject to a
serious risk of irreparable prejudice (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, I.C.J. Reports 2008, p. 396, para. 142). The Court is of the
view that a prejudice can be considered as irreparable when individuals are subject to temporary or
potentially ongoing separation from their families and suffer from psychological distress; when
students are prevented from taking their exams due to enforced absence or from pursuing their
studies due to a refusal by academic institutions to provide educational records; or when the
persons concerned are impeded from being able to physically appear in any proceedings or to
challenge any measure they find discriminatory.
- 25 -
70. The Court notes that the UAE stated, in response to a question posed by a Member of the
Court at the end of the oral proceedings, that, following the statement of 5 June 2017 by its
Ministry of Foreign Affairs, no administrative orders have been issued under the Immigration Law
to expel Qataris. The Court nonetheless notes that it appears from the evidence before it that, as a
result of this statement, Qataris felt obliged to leave the UAE resulting in the specific prejudices to
their rights described above. Moreover, in view of the fact that the UAE has not taken any official
steps to rescind the measures of 5 June 2017, the situation affecting the enjoyment of their abovementioned
rights in the UAE remains unchanged.
71. The Court thus finds that there is an imminent risk that the measures adopted by the
UAE, as set out above, could lead to irreparable prejudice to the rights invoked by Qatar, as
specified by the Court (see paragraph 54 above).
IV. CONCLUSION AND MEASURES TO BE ADOPTED
72. The Court concludes from all of the above considerations that the conditions required by
its Statute for it to indicate provisional measures are met. It is therefore necessary, pending its final
decision, for the Court to indicate certain measures in order to protect the rights claimed by Qatar,
as identified above (see paragraph 54 above).
73. The Court recalls that it has the power, under its Statute, when a request for provisional
measures has been made, to indicate measures that are, in whole or in part, other than those
requested. Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the
Court. The Court has already exercised this power on several occasions in the past (see, for
example, 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,
I.C.J. Reports 2017, p. 139, para. 100).
74. In the present case, having considered the terms of the provisional measures requested by
Qatar and the circumstances of the case, the Court finds that the measures to be indicated need not
be identical to those requested.
75. Reminding the UAE of its duty to comply with its obligations under CERD, the Court
considers that, with regard to the situation described above, the UAE must, pending the final
decision in the case and in accordance with its obligations under CERD, ensure that families that
include a Qatari, separated by the measures adopted by the UAE on 5 June 2017, are reunited, that
Qatari students affected by those measures are given the opportunity to complete their education in
- 26 -
the UAE or to obtain their educational records if they wish to continue their studies elsewhere, and
that Qataris affected by those measures are allowed access to tribunals and other judicial organs of
the UAE.
76. The Court recalls that Qatar has requested it to indicate measures aimed at ensuring the
non-aggravation of the dispute with the UAE. When it is indicating provisional measures for the
purpose of preserving specific rights, the Court may also indicate provisional measures with a view
to preventing the aggravation or extension of a dispute whenever it considers that the circumstances
so require (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,
I.C.J. Reports 2017, p. 139, para. 103). In this case, having considered all the circumstances, in
addition to the specific measures it has decided to take, the Court deems it necessary to indicate an
additional measure directed to both Parties and aimed at ensuring the non-aggravation of their
dispute.
*
* *
77. The Court reaffirms that its “orders on provisional measures under Article 41 [of the
Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment,
I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party
to whom the provisional measures are addressed.
*
* *
78. The Court further reaffirms that the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any
questions relating to the admissibility of the Application or to the merits themselves. It leaves
unaffected the right of the Governments of Qatar and the UAE to submit arguments in respect of
those questions.
*
* *
- 27 -
79. For these reasons,
THE COURT,
Indicates the following provisional measures:
(1) By eight votes to seven,
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;
IN FAVOUR: President Yusuf; Vice-President Xue; Judges Abraham, Bennouna,
Cançado Trindade, Sebutinde, Robinson; Judge ad hoc Daudet;
AGAINST: Judges Tomka, Gaja, Bhandari, Crawford, Gevorgian, Salam; Judge ad hoc Cot;
(2) By eleven votes to four,
Both Parties shall refrain from any action which might aggravate or extend the dispute
before the Court or make it more difficult to resolve.
IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna,
Cançado Trindade, Gaja, Sebutinde, Bhandari, Robinson; Judge ad hoc Daudet;
AGAINST: Judges Crawford, Gevorgian, Salam; Judge ad hoc Cot.
Done in English and in French, the English text being authoritative, at the Peace Palace,
The Hague, this twenty-third day of July, two thousand and eighteen, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to the Government of the State
of Qatar and the Government of the United Arab Emirates, respectively.
(Signed) Abdulqawi Ahmed YUSUF,
President.
(Signed) Philippe COUVREUR,
Registrar.
- 28 -
Judges TOMKA, GAJA and GEVORGIAN append a joint declaration to the Order of the Court;
Judge CANÇADO TRINDADE appends a separate opinion to the Order of the Court;
Judges BHANDARI, CRAWFORD and SALAM append dissenting opinions to the Order of the Court;
Judge ad hoc COT appends a dissenting opinion to the Order of the Court.
(Initialled) A.A.Y.
(Initialled) Ph.C.
___________