Written replies of Qatar to the questions put by Judge Cançado Trindade at the end of the public sitting held on 29 June 2018

INTERNATIONAL COURT OF JUSTICE
QATAR V. UNITED ARAB EMIRATES
IIEARING ON QATAR'S REQUEST FOR PROVISIONAL MEASURES
Response on behalf of the State of Qatar to the questions posed by
Judge Cançado Trindade on Friday, 29 June 2018
Question 1: Does the local remedies rule have the same ratio na le
in diplomatie protection and in international human rights
protection? Does the effectiveness of local remedies have an
incidence under the International Convention on the Elimination of
Ali Forms of Racial Discrimination?
l. The rationale of the local remedies rule in diplomatie
protection is to give the host State an opportunity to redress the wrong.
As the Court famously stated in lnterhandel:
Before resort may be had to an international court . . . it
has been considered necessary that the State ,vhere the
violation occurred should have an opportunity to redress
it by ifs own means, within the framework of its own
domestic legal system. 1
2. The Court has not suggested that the rationale would be any
different in the context of international human rights protection, where
the claim is in respect of an injury to a national. In Dia/la, a diplomatie
protection case conceming human rights, the Court approvingly cited the
passage above from Interhandel, without noting any particularities
arising from the fact that the case concerned human rights.2
3. International human rights bodies have generally agreed with
the Court's rationale in Jnterhandel in cases involving claims brought
directly by or on behalf of individual human rights victims.3 However,
lnterhandel Case (Swit=er/and v. United States), Pre/iminary Objections,
Judgment of 21 March 1959, J.C.J. Reports 1959, p. 27 (emphasis added).
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
Congo), Prelimina1J1 Objections, Judgment of 24 May 2007, J.C.J. Reports
2007), p. 599, para. 42.
Micalie/ v. Malta, application No. 17056/06, judgment of 15 October 2009,
ECHR, para. 55 ("The purpose ofthis rule is to afford the Contracting
these bodies have also stresscd that the purpose of the local remedies rule
includes an "element of actual redress" for the victims of human rights
violations.4 Hence, according to the Human Rights Committee, the
purpose of the local remedies rule is not only to "enable State parties to
examine, on the basis of individual complaints, the implementation,
within their territory and by their organs, of the provisions of the
Covenant an<l, if necessary, remedy the violations occurring, be/ore the
Committee is seized of the malter," but also to "direct possible victims of
violations of the provisions of the Co venant to seek, in the jirst place,
satisfaction from the competent State party authorities. "5
4. This added element of "actual redress" also underscores the
obligation of State parties to human rights treaties to provide an effective
remedy to individuals whose rights under those treaties have been
violated. For example, Article 2(3)(a) of the International Covenant on
Civil and Political Rights provides: "Each State Party to the present
Covenant undertake ... To ensure that any person whose rights or
freedom as herein recognized are violated sha/1 have an effective
States the opportunity of preventing or putting right the violations alleged
against them before those allegations are submitted to the Court."); see
a/sa Selmouni v. France, application No. 25803/94,judgment of28 July
1999, ECHR, para. 74; William A. Schabas, The European Convention on
Human Rights: A Commentary (2015), pp. 764-765; Viviana Gallardo et
al. v. Costa Rica, judgment of 13 November 1981, IACHR, Series A, No.
G 101 /81, para. 26 ("under the generally recognized principles of
international law and international practice, the rule which requires the
prior exhaustion of domestic remedies is designed for the bene fit of the
State, for that rule seeks to excuse the State from having to respond to
charges before an international body for acts imputed to it before it has had
the opportunity to remedy them by internai means."); Velasquez Rodriguez
v. Honduras, judgment of 29 July 1988 (merits), IACHR, Series C, No. 4,
para. 61; Laurence Burgorgue-Larsen, "Exhaustion of Domestic
Remedies," in Laurence Burgorgue-Larsen & Amaya Ûbeda de Torrespara
(eds.), The Inter-American Court of Huma11 Rights: Case Law and
Commenta,y (201 1 ), para. 6.02.
A.A. Cançado Trindade, The Application of the Rule of Exhaustion of
Local Remedies in International Law (1983), p. 56.
TK v. France, communication No. 220/1987, decision of 8 November 1989
(admissibility), HRC, para 8.3 (emphasis added); see also Sarah Joseph &
Melissa Castan, The International Covenant on Civil and Political Rights:
Cases, Materials, and Commenta,y (3d ed. 2013), para. 6.0 l.
2
remedy ... . "6 And, most relevant for current purposes, Article 6 of the
CERD provides: "States Parties sha/1 assure to everyone within their
jurisdiction effective protection and remedies, through the competent
national tribunats and other State institutions, against any acts of racial
discrimination which violate his human rights and fundamental freedoms
contrary to this Convention . ... "7
5. This added element of "actual redress" finally echoes the
differences in the fonction of the local remedies rule in both systems,
illustrated by Judge Cançado Trindade's seminal 1983 monograph on the
subject.H In diplomatie protection, the local remedies rule ensures that
disputes are not elevated onto the international plane before the
authorities of the offending State have had an adequate opportunity to
address them by their own means. It can thus be said that in diplomatie
protection, the local remedies rule operates preemptively.
6. In international human rights protection, the focus of the rule
is different. As explained above, under most major international human
rights instruments, States have bound themselves to international
obligations to respect and ensure human rights, including by subjecting
those obligations to the scrutiny of national tribunats and other State
institutions. By asking that such tribunals and other State institutions be
6 International Covenant on Civil and Polilical Rights, 16 December 1966,
999 U.N.T.S. 171, art. 2(3)(a) (emphasis added). Similarly, Article 13 of
the European Charter on Human Rights ("ECHR") provides: "Everyone
whose rights and freedoms as set forth in this Convention are violated sha/1
have an effective remedy before a national authority . .. " Convention for
the Protection ofHuman Rights and Fundamental Freedoms, November
1950, 213 U.N.T.S. 222, art. 13 (emphasis added). For its part, Article
25(1) of the American Convention on Human Rights ("ACHR") provides:
"Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fondamental rights recognized by the constitution or
laws of the state concerned or by this Convention ... " American
Convention on Human Rights, 22 November 1969, 1144 U.N.T.S. 123, art.
25(1).
International Convention on the Elimination of Ali Forms of Racial
Discrimination, 4 January 1969, 660 U.N.T.S. 195, art. 6 (emphasis
added).
See A.A. Cançado Trindade, The Application of the Rule of Exhaustion of
Local Remedies in International Law (1983), pp. 39, 51-52, 56.
3
resortcd lo before the violations are entnisted to the international
machinery for their implementation, the rule thus operates protectively.9
7. The next part of the question concerns the incidence of the
principle of effectiveness of local remedies under the Convention and
other human rights instruments. General international law posits that
only effective remedies can be taken into account in the application of
the local remedies mie. The ILC Draft Articles on Diplomatie
Protection, Article I S(a), illustrate the principle: "Local remedies do not
need to be exhausted where: (a) there are no reasonably available local
remedies to provide ef]èctive redress, or the local remedies provide no
reasonable possibility of such redress .... "10 Similarly, the ILC Articles
on State Responsibility, Article 44(b), provide: "The responsibility of a
State may not be invoked if: . .. (b) the claim is one to which the rule of
exhaustion of local remedies applies and any available and effective local
remedy has not been exhausted."11
8. The Convention envisages three procedures: ( 1) an inter-
State procedure before the CERD Committee and potentially a
Conciliation Commission (Articles 11-13); (2) an individual-State
procedure before the CERD Committee (Article 14); and (3) an interState
procedure before the Court (Article 22). Only the first two
procedures contain a local remedies requirement. This is consistent with
the general proposition that the local remedies rule does not apply in
cases involving a direct injury to the claimant State, 12 and the Court's
recognition that human rights treaties may give rise to direct obligations
9
10
Il
12
This added purpose for the local remedies mie necessarily informs its
application under the Convention and other human rights treaties, as Qatar
will explain at the appropriate stage ofthese proceedings.
International Law Commission, Draft Articles on Diplomatie Protection
with commentaries (2006), Yearbook of the International Law
Commission, 2006, vol. Il, Part Two, art. l 5(a) (emphasis added).
International Law Commission, Articles on the Responsibility of States for
International/y Wrongfit! Acis (2001), Yearbook of the International Law
Commission, 2001, vol. II, Part Two, art. 44(b) (emphasis added).
See International Law Commission, Draft Articles on Diplomatie
Protection with commentaries (2006), Yearbook of the International Law
Commission, 2006, vol. II, Part Two, p. 45, para. 9 (commentary to Article
14).
4
between the Contracting Parties, including obligations erga omnes
partes." lndeed, the issue of exhaustion of local remedies did not arise
in eithcr Georgia v. Russian Federation or Ukraine v. Russian
Federation. The principle of effectiveness is fully applicable to both
procedures where the local remedies requirement does apply.
9. Article 11 (3) provides in pertinent part: "The Committee
shall deal with a matter referred to it in accordance with paragraph 2 of
this article after it has ascertained that all available domestic remedies
have been invoked and exhausted in the case, in conformity with the
generally recognized principles of international law." Although this
provision does not expressly require the local remedies to be "effective,"
the reference to "generally recognized principles of international law"
incorpora tes the principle of "effectiveness" of remedies.
10. Article l4(7)(a) provides in pertinent part: "The Committee
shall not consider any communication from a petitioner mùess it has
ascertained that the petitioner has exhausted all available domestic
remedies." This provision also does not require the local remedies to be
"effective," and in contrast with Article 11(3), it does not contain a
reference to "generally recognized principles of international law."
Nevertheless, the principle of effectiveness of local remedies is again
fully applicable for two reasons. First, Rule 92(7) of the CERD
Committee's Rules of Procedure provides that if a State challenges the
admissibility of a communication on the basis of the local remedies
requirement, then "the State party is required to give details of the
13 See Obligation to Prosecute or Extradite (Be/gium v. Senegal), Judgment
of20 July 2012, I.C.J. Reports 2012, p. 449, para. 68; see a/so Application
of the International Convention on the Elimination of Ail Forms of Racial
Discrimination (Georgia v. Russian Federation), Provisional Measures,
Order of 15 October 2008, I. C.J. Reports 2008 (hereinafter "Georgia v.
Russian Federation"), pp. 391-392, para. 126 ("States parties to CERD
have the right to demand compliance by a State party with specific
obligations incumbent upon it under Articles 2 and 5 of the Convention");
Application of the lntemational Convention for the Suppression of the
Financing ofTerrorism and of the International Convention on the
Elimination of Ail Forms of Racial Discrimination (Ukraine v. Russian
Federation), Provisiona/ Measures, Order of 19 April 2017 (hereinafter
"Ukraine v. Russian Federation"), p.30, para 81 ("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").
5
e;ffèctive rcmedies available to the alleged victim." 14 Second, in its
jurisprudence, the CERD Committee expressly requires that the remedy
be "effective."15
11. The principle of effectiveness of local remedies is similarly
applicable to ail other major human rights treaties. 16
12. In view of the foregoing, Qatar submits that although there is
a certain degree of overlap in the rationale of the local remedies mie in
the fields of diplomatie protection and international human rights
14
15
16
Rules of Procedure of the Committee on the Elimination of Racial
Discrimination, U.N. Doc. No. CERD/C/35/Rev.3 (1 Jan. 1986), rule 92(7)
(emphasis added).
CERD Committee, l.R. et al. v S/ovak Republic, CERD/C/66/D/31/2003
(2005), para. 6.1; see also Patrick Thornberry, The International
Convention on the Elimination of Ail Forms of Racial Discrimination: A
Commenta,y (2016) (hereinafter "Thornberry"), p. 59, n.233.
Hence, under the ECHR and the ACHR, the principle of effectiveness of
local remedies is incorporated as part of the "generally recognized rules of
international law" (under ECHR Article 35(1)) or the "generally
recognized principles of international law" (under ACHR Article
46(1 )(a)). ln their jurisprudence, both the European Court ofHuman
Rights ("ECtHR") and the lnter-American Court of Human Rights
("IACtHR") have expressly required that the remedy be "effective." For
the ECtHR, see Scoppola v. Italy (no. 2), application No. 10249/03,
judgment of 17 September 2009, ECHR, para. 70; see also William A.
Schabas, The European Convention on Human Rights: A Commentary1
(2015), p. 765 n.75 . For the IACtHR, see Cruz v. Honduras,judgment of
20 january 1989 (merits), IACHR, Series C, No. 5, para. 69; seefurther
Laurence Burgorgue-Larsen, "Exhaustion ofDomestic Remedies," in
Laurence Burgorgue-Larsen & Amaya Ûbeda de Torrespara (eds.), The
Inter-American Court of Human Rights: Case Law and Comme11ta1J'
(2011 ), paras. 6.24-6.29. Similarly, although Article 5(2)(b) of the First
Optional Protocol of the International Covenant on Civil and Political
Rights does not expressly require the local remedies to be "effective," in its
jurisprudence, the Human Rights Committee has expressly required that
the remedy be "effective." See Ominayak et al v. Canada, communication
No. 167/1984, decision of26 March 1990, HRC, para. 13.2; see a/so Sarah
Joseph & Melissa Castan, The International Covenant on Civil and
Political Rights: Cases, Materials, and Commenta,:v (3d ed., 2013), ch. 6,
para. 6.04.
6
protection; in the latter, the rule is also undcrscored by an element of
"actual redress." Such redress must, furthermore, be effective.
Question 2: ls it nccessary to address the plausibility of rights in
face of a continuing situation allegedly affecting rights protected
under a human rights treaty like the International Convention on
the Elimination of Ali Forms of Racial Discrimination?
13. The Court's requirement that an applicant for provisional
measures demonstrate the "plausibility" of the rights asserted is subject
to a low showing- that is, the Court is to engage in some "minimum
review" that the rights exist. This test was first articulated in Judge
Abraham's separate opinion in Pulp Mills, upon which both parties
rely. 17 By design, the showing does not impose an "exacting" or "high"
standard; indeed, the rights need only be grounded in a "possible
interpretation" of the Iegal instrument at issue. 18 Even as, in more recent
cases, the Court has considered implicitly a "legal" and "factual"
component of the "plausibility" requirement, the showing for both
remains low. The Iow threshold for this showing is especially important
when it cornes to the protection of rights under a human rights treaty,
such as the Convention, in order to preserve the protective fonction of
human rights treaties that seek to secure the fundamental rights of
vulnerable populations from infringement by the State.
14. So whatever the relationship between the Court's
"plausibility of rights" test or an alternative "test of vulnerability of
segments of the population"19 for purposes of provisional measures
sought to protect human rights, the existing, Iow threshold required to
demonstrate whether the rights thus claimed actually exist and whether
they are in danger of being violated should, at a minimum, be maintained
for human rights such as those asserted under the Convention. In
particular, the plausibility requirement should be considered fulfilled as
17
18
19
See CR 2018/12, p. 35, para. 15 (Amirfar); CR 2018/13, pp. 30-31, para. 9
(Treves).
Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional
Measures, Order of 28 May 2009, I. C.J. Reports 2009 (hereinafter
"Belgium v. Senegal, Provisional Measures, Order of 28 May 2009"),
p. 152, para. 60.
Ukraine v. Russian Federation, Separate Opinion of Judge Cançado
Trindade, pp. 6-9, paras. 12-26.
7
long as an applicant has set forth.jirst, a legal showing that the asserted
human right is, to use the Court's language in Belgium v. Senega/,
"grounded in a possible interpretation of the treaty," and second, to use
Judge Abraham's language in Pulp Mi/ls, based on "some minimum
review" of the underlying facts, the "possibility of the other party's
conduct infringing that right is not manifestly to be ruled out." 20
15. Below, we address, jirst, the development of the Court's
"plausibility" requirement and the principles underlying it; and second,
the "plausibility" requirement considered in the framework of human
rights treaties, including the Convention.
A. The Impetus for the "Plausibility" Requirement
16. The Court first adopted the "plausibility" requirement in
Belgium v. Senegal, where it stated that "the power of the Court to
indicate provisional measures should be exercised only if the Court is
satisfied that the rights asserted by a party are at Ieast plausible."21 The
Court has assessed the "plausibility" of the rights asserted in each of its
subsequent Orders on provisional measures.22
20
21
22
Belgium v. Senega/, Provisional Measures, Order of 28 May 2009, p. 152,
para. 60; Pulp Mi/ls on the River Uruguay (Argentina v. Uruguay),
Provisional Meas11res, Order of 13 Ju(J' 2006, 1. C.J. Reports 2006
(hereinafter "Pulp Mills"), Separate Opinion of Judge Abraham, pp. 139-
141, paras 8-10.
Belgium v. Senegal, Provisional Measures, Order of 28 May 2009, p. 151,
para. 57.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua), Provisional Measures, Order of 8 Morch 2011, J.C.J.
Reports 2011 (hereinafter "Costa Rica v. Nicaragua"), p. 18, para. 53;
Request for lnterpretation of the Judgement of 15 June 1962 in the Case
concerning the Temple of Preah Vihear (Cambodia v. Thai/and),
Provisional Measures, Order of 18 July 2011, J.C.J. Reports 2011, p. 545,
para. 33; Certain Activities Carried Out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua); Construction of a Road in Costa Rica a long the
San Juan River (Nicaragua v. Costa Rica), Provis1onal Measures, Order of
22 November 2013, J.C.J. Reports 2013, p. 360, para. 27; Construction of a
Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica);
Certain Activities Carried Out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua), Provisional Measures, Order of 13 December 2013,
l.C.J Reports 2013 (hereinafter "Nicaragua v. Costa Rica"), pp. 403-4,
8
17. Judgc Abraham's separate opinion in Pu/p Mills, written one
year prior to Belgium v. Senegal, foreshadowed the plausibility standard
later adopted by the Court. Both Qatar and the UAE have agreed that
Judge Abraham's approach is retlected in the Court's existing
jurisprudence.23 Judge Abraham wrote separately in that case in order to
address "the question of the relationship between the merit, or prima
facie merit, of the arguments asserted by the paity requesting the
measures ... and the ordering of the urgent measures it seeks from the
Court"- a question he believed was particularly important following the
Court's 200 l determination in LaGrand that provisional measures are
binding on the parties.24 According to Judge Abraham, following
LaGrand:
23
24
25
lt is now clear that the Court does not suggest: it orders.
Yet, and this is the crucial point, it cannot order a State
to conduct itself in a certain way simply because another
State claims that such conduct is necessary to preserve
its own rights, unless the Court has carried out some
minimum review to determine whether the rights thus
claimed actually exist and whether they are in danger of
being violated-and irreparably so-in the absence of
the provisional measures the Court has been asked to
prescribe: thus, unless the Court has given some thought
to the meri ts of the case. 25
paras. 17-19; Questions Relating to the Seizure and Detention of Certain
Documents and Data (Timor-Leste v. Australia}, Provisional Measures,
Order of 3 March 2014, /. C.J. Reports 2014, p. 152, para. 22; Immunities
and Criminal Proceedings (Equatorial Guinea v. France), Provisional
Measures, Order of7 December 2016, J.C.J. Reports 2016 (hereinafter
"Equatorial Guinea v. France"), pp. 1165-6, para. 71; Ukraine v. Russian
Federation, p. 21, para. 63; Jadhav Case (lndia v. Pakistan), Provisional
Measures. Order of 18 May 2017 (hereinafter "Jadhav"), para. 35.
CR 2018/12, p. 35, para. 15 (Amirfar); CR 2018/13, pp. 30-31, para. 9
(Treves).
Pulp Mi lis, Separate Opinion of Judge Abraham, pp. 137, 139-40, paras. 1,
7-8 (citing LaGrande (Germany v. United States of America), Judgment of
27 June 2001, J.C.J. Reports 2001, p. 466).
Ibid. p. 140, para. 8 (emphasis added).
9
18. Judge Abraham concluded that in order to indicate
provisional measures, the Court must "satisfy itself' that, among other
things, "there is a plausible case for the existence of the right."26 While
he did not take a position on the exact content of this standard, he
stressed that it was a low threshold of "some minimum review" that
could be described by a range of terms, and noted that "it might be
enough to ascertain that the claimed right is not patent(v non-existent and
that . .. the possibility of the other party's conduct infringing that right is
not manifestly to be ruled out."27
19. Indeed, in light of the purpose of the requirement and the
broader context of the Court's jurisprudence on provisional measures,
plausibility is necessarily subject to a low showing. First, the purpose of
plausibility is not to enter into an in-depth consideration of the likelihood
of success on the merits-it is to ensure only that the Court does not
order binding measures on the basis of rights which are patently nonexistent
or which are obviously not in danger of violation from the other
party's conduct. Second, anything other than a very low threshold would
run afoul of the Court's long-established rules that the Court must not
pre-judge the merits of the claims at the provisional measures stage,28
and that the Court is not in the position to undertake an in-depth factual
assessment at the provisional measures stage.29 This is consistent with
Practice Direction XI, which provides that parties "should not enter into
the merits of the case beyond what is strictly necessary" at the
26
27
28
29
Ibid. p. 141, para. 11.
Ibid., pp. 140-41, para. 10.
See, e.g ., Nicaragua v. Costa Rica, p. 404, paras. 20-21; Ukraine v.
Russian Federation, Separate Opinion of Judge Owada, pp. 2-3, para. l 0
("This low requirement of the threshold should only be obvious, if regard
is had to the point that the determination on whether the rights are
plausible should not prejudge the merits of the dispute ... Such
prejudgment would clearly be inappropriate in light of the fact that, at the
stage of provisional measures, the parties have not had sufficient
opportunity to furnish ail the evidence to establish their arguments in full,
nor the Court has had sufficient opportunity to consider the totality of the
evidence and arguments that the parties would like to present at the merits
stage.").
See, e.g., Nuclear Tests (New Zealand v. France), lnterim Protection,
Order of 22 June 1973,/.C.J. Reports 1973, Deciaration of Judge Jiménez
de Aréchaga, p. 144.
10
provisional measurcs stage. 30 This approach is reflectcd in the
jurisprudence of other international tribunals, which also adopt a low
showing, for the same reasons.31
20. Thus, in Belgiwn v. Senega/, the Court primarily concerned
itself with whether "the rights asserted by Belgium, being grounded in a
possible inte,pretation of the Convention against Torture, therefore
appear to be plausible."32 In recent cases, the Court has also assessed
"factual" plausibil ity- namely, whether it is plausible that the rights
invoked are applicable to the factual situation at hand.33 Severa! Judges
of the Court have noted that the Court's jurisprudence on whether
plausibility involves a legal or factual inquiry, or both, has not been
entirely clear over the years.34
21. However, even the cases in which the Court has assessed
both legal and factual "plausibility" confirm that the Court should not
engage in any extensive evidentiary inquiry at the provisional measures
stage. For example, in Equatorial Guinea v. France, Equatorial Guinea
claimed breach of the Vienna Convention on Diplomatie Relations based
on France's attachment of its alleged diplomatie premises. 35 The Court's
conclusion that Equatorial Guinea's right to inviolability of these
premises was "plausible" rested in part on a factual determination that
30
31
32
33
34
35
International Court of Justice Practice Direction XI, as amended on 20
January 2009 and 21 March 2013, http://www.icj-cij.org/en/practicedirections.
See, e.g., De/imitation of the Maritime B0u11da1y in the Atlantic Ocean
(Ghana/Côte D'Ivoire), Provisional Measures, Order of 25 April 2015,
JTLOS Reports 2015, pp. 158-159, paras. 58, 62.
Belgium v. Senegal, Provisional Measures, Order of28 May 2009, p. 152,
para. 60 (ernphasis added).
See, e.g., Georgia v. Russian Federatio11, p. 387, para. 112; Ukraine v.
Russian Federation, p. 26, paras. 75, 82-83; Equatorial Guinea v. France,
p. 1167, para. 79.
See, e.g., Ukraine v. Russian Federation, Separate Opinion of Judge
Cançado Trindade; Costa Rica v. Nicaragua, Separate Opinion of Judge
Koroma, pp. 29, 32, paras. 1-2, I0-12.
Equatorial Guinea v. France, p. 1167, para. 79.
11
Equatorial Guinea "plausibly" used those premises for diplomatie
purposes. 36
22. In Ukraine v. Russian Federatio11- the only case in which
the Court has found a lack of plausibility, in relation to Ukraine's rights
asserted under the International Convention for the Suppression of the
Financing of Terrorism ("/CSFT')- the Court appeared to base its
determination on the fact that Ukraine had not provided any evidence
with respect to certain elements of the legal claim. Ukraine relied only
on Article 18 of that instrument, which obligated Russia to cooperate in
preventing terrorism financing as defined by Article 2. Article 2 in tum
defined terrorism financing as including an element of knowledge or
intent that the fonds will be used to carry out certain acts, and that the
acts be carried out with the purpose of intimidating the population or
compelling the govemment to act, or refrain from acting, in a particular
way.37 The Court concluded that Ukraine had "not put before the Court
evidence which affords a sufficient basis to find it plausible that these
elements are present."38 By contrast, with respect to Ukraine's claims
under the Convention, the Court concluded that, based on the evidence
presented-primarily reports from international rights organizations"
it appears that some of the acts complained of by Ukraine fulfill this
condition of plausibility."39 In other words, the Court found it
"plausible" that these acts "constitute acts of racial discrimination under
the Convention."40 Likewise, in Georgia v. Russian Federation, the
Court acknowledged that it need not "establish the existence of breaches
of CERD ... or make definitive findings of fact." Rather, the Court
must "determine whether the circumstances require the indication of
provisional measures for the protection of rights under CERD."41
23. The Court's development of the doctrine since Belgiwn v.
Senegal illustrates that the plausibility inquiry remains a Iimited one, in
36
37
38
39
40
41
Ib id.
Ula·aine v. R11ssia11 Federation, p. 26, para. 74.
Ibid. p. 26, para. 75.
Ibid. p. 30, para. 83.
Ibid. p. 30, para. 82.
Georgia v. Russian Federation, pp. 395-6, para. 141.
12
which the Court conducts "some minimum review" to assess whether the
applicant has sufficiently demonstrated that the rights it asserts might
have been breached. It follows that any factual review of the record at
the provisional measures stage of proceedings must be very limited.
B. The "Plausibility" Requirement Considered in the Particular
Context of Human Rights Treaties
24. Given the character of human rights, the fundamental
interest in protecting vulnerable populations from continuing violations
of such rights, and the rationale for plausibility, the most modest showing
should be required for purposes of meeting the "plausibility" requirement
in human rights cases. This point applies to both Iegal and factual
plausibility, which will be addressed in turn below.
25. First, as a matter of legal plausibility, while the
interpretation of human rights treaties, like other treaties, is subject to the
interpretative framework of the Vienna Convention on the Law of
Treaties, the particular object and purpose of human rights treaties, and
the nature of the rights and obligations they afford, have led courts to
take a specialized "pro homine" or "pro femina" approach to their
interpretation-in other words, that they should be interpreted in the way
that is most protective of human rights.42 This approach takes into
account the specific object and purpose of human rights treaties, which is
the protection of the individual human person.
26. Accordingly, courts will generally interpret human rights
treaties in the manner that maximizes the effectiveness of their
protections.43 In order to do so, such treaties are approached as a "living
instrument," whose interpretation is rooted in present day conditions.44
42
43
44
See Case of Ricardo Canese v. Paraguay,judgrnent of31 Aug. 2004
(merits, reparations, and costs), lACHR, Series C, No. 111, para. 181; see
also Cançado Trindade, Current State and Perspectives of the lnterAmerican
System of Human Rights, Protection at the Dawn of the New
Centwy, 8 Tulane Journal oflntemational & Comparative Law 5, 12
(2001).
Case of Soering v. the United Kingdom, application No. 14038/88,
judgment of7 July 1989, ECHR, para. 87.
CR 2018/14, p. 27, para. 6 (Amirfar); see Mayagna (Sumo) Awas Tingni
Community v. Nicaragua, judgment of 31 August 2001 (merits, reparations
and costs) IACHR, Series C, No. 79, para. 146; see also loizidou v.
13
This approach is particularly critical in detcrmining a request for
provisional measures seeking protection for basic human rights from
allegations of, as Question 2 acknowledges, "continuing hann." As Judge
Cançado Trindade has noted, "the principle of humanity permeales the
whole corpus juris of contemporary international law ... [It] has a clear
incidence on the protection of persons in situations of great
vulnerability."45 The Cou1t's jurisprudence wilh respect to provisional
measurcs appears implicitly to take account of the nature of the rights
asserted for purposes of the indication of provisional measures.46
27. The Convention by definition seeks to protect th ose who are
particularly vulnerable to infringements upon their fundamental human
rights, by virtue of their race, color, descent, national origin, or ethnie
origin. Indeed, in both of the cases in which the Court has indicated
provisional measures to protect Convention rights, the Court has rejected
narrow readings of the Convention in favor of readings that would give
the greater protection.47 The Court accordingly indicated provisional
45
46
47
Turkey, application No. 15318/89, judgment of 23 February 1995
(preliminary objections), ECHR, para. 71; Thomberry, p. 158; Committee
on the Elimination of Racial Discrimination, General Recommendation
XXX!I on the meaning and scope of special measures in the International
Convention on the Elimination of Racial Discrimination, U.N. Doc.
CERD/C/GC/32 (2009), para. 5.
Ukraine v. Russian Federation, Separate Opinion of Judge Cançado
Trindade, p. 25, para. 91.
See, e.g., Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, Provisional Measures, Order of 8 April 199 3,
l .C.J. Reports 1993, pp. 22-23, paras. 45, 49 (noting that "the crime of
genocide 'shocks the conscience of mankind, results in great losses to
humanity .. . and is contrary to moral law and to the spirit and aims of the
United Nations"'); Armed Activities on the Territo1J' of the Congo
(Democratic Republic of the Congo v. Uganda), Provisional Measures,
Orderofl July 2000, I.C.J. Reports 2000, pp. 127-128, paras. 40, 43
(noting the rights in issue include, among others, "rights to respect for ...
the instruments relating to the protection ofhuman rights," and stating,
with respect to the risk of irreparable prejudice, that "persons, assets, and
resources present on the territory of the Congo, particularly in the area of
conflict, remain extremely vulnerable").
See, e.g., Georgia v. Russian Federation, p. 386, paras. 108-109 (rejecting
Russia's argument for territorial limitations on the CERD's application and
instead finding that the CERD provisions invoked by Georgia "generally
14
measures relatcd to the Convention in both cases (even while rejecting
provisional measures under the ICSFT in the case of Ukraine v. Russian
Federation). As Judge Cançado Trindade stated in bis separate opinion
in Ukraine v. Russian Federation, "In such situations, the social
exclusion of the victimized renders the international jurisdiction their
'last hope', given their situation of extreme vulnerability and
defencelessness. "48 So, for example, as a matter of legal plausibility, it is
nol only possible to interpret the Convention lo prohibit measures
targeting Qataris for discriminatory treatment because their "national
origin" is Qatari, but in fact probable based on the plain text of the
Convention, viewed in context and in light of the Convention's object
and purpose, as well as the travaux préparatoires and explicit
interpretations set forth by the CERD Committee.49
28. Second, to the extent the Court in Ula·aine v. Russian
Federation addressed plausibility as a matter of Jact, the Court likewise
applied a low threshold. lndeed, while addressed as a matter of the
requirement of urgency and irreparable harm, the Court acknowledged
the "nature" of the fundamental human rights involved under the
Convention and that the affected populations appear to "remain
48
49
appear to apply, like other provisions of instruments of that nature, to the
actions of a State party when it acts beyond ils territory"); ibid. pp. 391-
392, para. 126 (finding that "Articles 2 and 5 of the CERD are intended to
protect individuals from racial discrimination by obliging States parties to
undertake certain measures specified therein .... States parties to CERD
have the right to demand compliance by a State party with specific
obligations incumbent upon it under Articles 2 and 5 of the Convention;[)
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 .... "); Ukraine v. Russian Federation, p. 30, para. 81
(citing Georgia v. Russian Federation, pp. 391-392, para. 126).
Ukraine v. Russian Federation, Separate Opinion of Judge Cançado
Trindade, p. 7, para. 18.
CR 2018/14, pp. 21-25, paras. 3-10 (Amirfar); CR 2018/14, pp. 25-27,
paras. l l-15 (Amirfar); see also CR 2018/14, pp. 27-29, paras. 16-19
(Amirfar) (addressing plausibility ofrights asserted under Article 5). We
note that the UAE did not challenge the plausibility of the rights asserted
by Qatar under Articles 4, 6, or 7 of the CERD; thus, we submit there is no
dispute as to their plausibility and the Court should find them plausible
both on the law and the facts.
15
vulncrable."50 And while the Court did not find the evidence adduced by
Ukraine sufficient to find plausible its assertion of rights under the
ICSFT, the Court did find that there was sufficient evidence in the fonn
of reports from independent human rights organizations such as Human
Rights Watch, the Ukrainian Helsinki Human Rights Union, and
Amnesty International to find plausible Ukraine's assertion of rights
under the Convention. So for example, here, where there is undisputed
evidence that the 5 June 2017 policy statement of the UAE's
discriminatory measures against Qataris as a group of people has not
been revoked,51 that is ail that should be required to show the plausibility
of the claim that Convention rights might be breached, since the "effect"
of infringement of Articles 2 and 5 and the other human rights sought to
be protected through the provisional measures requested stem from the 5
June 2017 statement. 52
29. ln short, whether or not the Court puts the requisite showing
in terms of "plausibility of rights" or "vulnerability of populations" for
purposes of a human rights treaty such as the Convention, at a minimum,
the rights asserted under the Convention should be subject, in accord
with the Court's jurisprudence, to a Iow threshold showing of both legal
and factual plausibility in order to indicate provisional measures.
Question 3: What are the implications or effects, if any, of the
existence of a continuing situation allegedly aff ecting rights
protected under a human rights Convention, for requests of
Provisional Measures of Protection?
30. The Court has the authority to indicate provisional measures
in order to ensure that, after the full course of proceedings, it will have
50
51
52
Ukraine v. Russian Federation, p. 33, para. 96.
The UAE does not dispute that the 5 June 2017 statement has not been
revoked, taking the position during its second round of oral submissions
that "in a sense there was no need" to revoke the 5 June 2017 statement.
CR 2018/15, p. 38, para. 12 (Shaw) ("Lord Goldsmith says that the 5 June
statement has not been withdrawn. In a sense there was no need. No
legislative or administrative measures were taken, no general policy of
expulsion introduced. The political sentence fell away. lffear has indeed
been generated, Mr. President, the source is not the measures taken by the
UAE against Qatar, but the reasons why such measures were introduced.").
CR 2018/14, pp. 29-31, paras. 19-23 (Amirfar).
16
the capacity to fulfill its judicial function by fully vindicating the rights
of the pai1ies before it.53 The Court indicates provisional measures when
it determines that there is a rea/ and imminent risk that the rights in
dispute will be irreparably prejudiced before the Court is able to issue its
decision on the merits.54
31 . Where there is a continuing situation allegedly affecting the
rights in dispute, the requirement of a real and imminent risk is
necessarily satisfied. In that circumstance, unlike a situation in which
the requesting party has identified a future event that will cause
irreparable harm,55 the harm is being caused on a continuing basis and
hence, if irreparable, will necessarily satisfy the requiremcnt that the risk
be "real and imminent."
32. Further, when the rights at issue arise under a human rights
Convention, irreparable prejudice is the natural consequence of
restrictions on those rights. The rights protected by human rights
conventions like CERD go to the very heart of human dignity, and a
violation of those rights, once underway, cannot be repaired th.rough
financial compensation or other customary forms of reparation available
to the Court. 56
33. The irreparability of the harm from continuing violations of
rights protected in human rights conventions is also exacerbated by the
vulnerability of the affected individuals. As the Court stated in Georgia
v. Russian Federation, certain rights under the CERD "are of such a
53
54
SS
56
Robert Kolb, The International Court ofJustice (Hart Publishing, 2013), p.
616; see also CR 2018/12, p. 19, para. 2 (Donovan); CR 2018/12, p. 51,
para. 2 (Goldsmith).
Equato,.ial Guinea v. France, p. 1168, paras. 82-83. On the meaning of
"real and imminent risk of irreparable prejudice" of the rights in dispute
before the decision on the merits, see CR 2018/12, pp. 52, 54, 59-61, paras.
7, 12-14, 31-38 (Goldsmith); CR 2018/14, pp. 32-34, paras. 5-13
(Goldsmith) (stating, for example that "(t]he Court should ask here, we
respectfully suggest, as it has done in granting provisional measures in
other cases: is it conceivable that irreparable prejudice could occur to the
rights in dispute before the merits decision?").
Equatorial Guinea v. France, p. 1168-1169, paras. 84-85, 89-90; Jadhav,
pp. 12-13, paras. 51, 54, 55.
CR 2018/14, p. 33, paras. 9-10 (Goldsmith).
17
nature that prcjudice to them could be irreparable."57 Against Russia's
assertion that a tentative peace had taken hold, the Cou1t noted that the
Georgian population "rcmain[ ed] vulnerable."58 Even though the
"problems of refugees and internally displaced persons" were "currently
being addressed," the conditions "ha[d] not yet been resolved in their
entirety."59 As a result, "there exist[ cd] imminent risk that the rights at
issue in this case ... may suffer irreparable prejudice."60
34. Likewise, in Ukraine v Russian Federation, the Court noted
that the "rights stipulated in Article 5, paragraphs (c), (d) and (e) of
CERD are of such a nature that prejudice to them is capable of causing
irreparable harm." The Court continued, "[b]ased on the information
before it at this juncture, the Court is of the opinion that the Crimean
Tatars and ethnie Ukrainians in Crimea appear to remain vulnerable."61
The Court "took note" of evidence of restrictions on rights, and
"consider[ed] that there [was] an imminent risk that the acts ... could
lead to irreparable prejudice to the rights invoked by Ukraine. "62
35. These principles also find support in the practice of the Inter-
American Court of Human Rights ("/ACtHR"), in respect of the
American Convention on Human Rights ("ACHR"). In awarding
provisional measures, the IACtHR considers whether there is "extreme
gravity and urgency" and whether measures are necessary "to avoid
irreparable damage to persons," in line with Article 63(2) of the ACHR.63
The IACtHR has confim1ed that "urgent and provisional measures
serve . . . to protect fundamental human rights, thereby avoiding
57
58
59
60
61
62
63
Georgia v. Russian Federation, p. 396, para. 142.
Ibid., para. 143.
Ibid.
Ibid.
Ukraine v. Russian Federation, p. 33, para. 96.
Ibid., p. 33, paras. 97-98.
American Convention on Human Rights, 22 November 1969, 1144
U.N.T.S. 123.
18
irreparablc harm to persons."64 Examples from IACtHR practice confirm
the principle that, in the case of ongoing violations, any assessment of
risk of harm is necessarily met. They also exhibit a concern that hann
compounds over time. For example, in Malter of l.M. (Paraguay), the
Commission argued that "the urgency does not derive from a threat of
harm, whose appearance can be anticipated in the future, but from hann
that is already being caused and the prospects of repairing it are inversely
proportionate to the passage of time." 65 The Court agreed. The situation
"entails a risk that is not only imminent but may already be occurring."66
ln this case, "[t]he passage of time would inevitably constitute a defining
element of ties of affection that would be hard to revert without causing
damage to the child."67
36. ln this case, Qatar has submitted independent reporting
showing continuing hann throughout the past thirteen months. 68 This is
65
66
67
68
Malter of Pueblo lndigena Sarayaku, order of 6 July 2004 (provisional
measures regarding Ecuador), lACHR, p. 8, para. 6.
Malter of L.M. (Paraguay), order of 1 July 2011 (provisional measures with
regard to Paraguay), p. 8, para. 8.
Ibid. p. 15, para. 18.
Ibid. In Case of Haitian and Haitwn Origin Dominican Persons in the
Dominican Republic, which concerned allegedly illegal immigration
policies, the lACtHR indicated provisional measures (to protect individuals
and communities more broadly) based on evidence showingprimafacie
that the policies resulted in abuse. This evidence included testimony ofamongst
other things-the trauma that results from separation offamilies.
Case of Haitian and Haitian-Origin Dominican Persans in the Dominican
Republic, order of 18 August 2000 (provisional measures requested by the
IACHR), p. 10, para. 5, p. 7, para. 13. In a Concurring Opinion, Judge
Cançado Trindade noted that "[w]ith the uprootedness, one !oses, for
example, the familiarity with the day-to-day life, ... the work which gives
to each person the meaning oflife and sense ofusefulness to the others, in
the community wherein one lives ... as well as the possibility to develop a
project of life. lt is, thus, a problem which concerns the whole human
kind . .. ". Case of Haitian and Haitian-Origin Dominican Persans in the
Dominican Republic, order of 18 August 2000 (provisional measures
requested by the IACHR), Concurring Opinion of Judge A.A. Cançado
Trindade, p. 15, para. 6.
CR 2018/14, pp. 39-42, paras. 34-51 (referring to Tab 8 of the Judges'
Folder) (Goldsmith).
19
the exact type of evidence that the Court has found more than sufficient
to make a finding of urgency in past cases involving continuing
situations allegedly affecting rights under the Convention.69 The rights
that Qatar has alleged have been violated, as these reports evidence,
harm the fundamental interests of the affected individuals, including
marriage and family life, education, work, and the enjoyment of one's
prope1iy. 70 Thus, as revealed by the very existence of and necessity for
the UAE's claimed "mitigation" measurcs, the question of a "real and
imminent risk of irreparable harm" to Qataris is satisfied every day
because of the continuing situation caused by the UAE's discriminatory
measures announced on 5 June 2017 and subsequently. Even on the
UAE's own case, the continuing situation "has not yet been resolved in
[its] entirety."71
37. In sum, these decisions express a simple principle. Where
the alleged violations of human rights are occurring in a continuing
situation, the Court need not imagine the risk that such violations will
occur again. They are, by definition, imminent. Further, where the
alleged violations affect rights under a human rights Convention, such as
the CERD, that harm is by definition irreparable: deprivation of any core
human rights on a discriminatory basis impacts on human dignity.
69
70
71
Ul.rnine v. Russian Federation, p. 33, para. 97 (stating that OHCHR and
OSCE reports regarding past and ongoing violations were "prima facie"
evidence "that there have been restrictions in terms of the availability of
Ukrainian-Ianguage education in Crimean schools"); Georgia v. Russia11
Federation, pp. 393, 396, paras. 131, 143 (noting that Georgia presented
"reports of international and non-governmental organizations and witness
statements" to show "ongoing, widespread, and systematic abuses of the
rights of ethnie Georgians under the Convention," which formed a central
part of the case file on which the Court concluded that the population in
question remained vulnerable).
CR 2018/12, pp. 54-59, paras. 12-30 (Goldsmith); CR 2018/14, pp. 42-43,
paras. 52-54 (Goldsmith) (referring to Tab 9 of the Judges' Folder).
Georgia v. Russian Federation, p. 396, para. 143; see a/sa CR 2018/15,
p. 38, para. 12 (Shaw) (explaining that "in a sense there was no need" to
revoke the 5 June statement).
20