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

Comments of the United Arab Emirates (the ''UAE") to the Written Responses of Qatar to
the questions of Judge Cam.ado Trindade:
1. Docs the local remedies rule have the same rationale in diplomatic protection and in
international human r ights protection? Docs the effectiveness of local remedies have
nn incidence under the International Convention on the Elimination of All Forms of
Racial Discrimination and other human rights treaties?
In light of Qatar·s response to Judge Carn;:ado Trindade ·s first question. it is clear that
both pai1ies are in agreement as to the rationale of the requirement of exhaustion oflocal
remedies as succinctly set out in lnterhandel. 1 Neither the Court itself nor the
international human rights bodies have concluded otherwise with respect to the specific
case of human rights treaties.
However, what Qatar singles out as the specificity of the requirement of exhaustion of
local remedies in the context of international human rights law ('·actual redress'')2 is
nothing other than another name for the requirement of the effectiveness of such remedies
in confo1mity with generally recognized principles of international law. In addition, as
recognized by Qatar. the principal international human rights treaties include an express
obligation upon States parties to ensure the availability of an effective remedy for alleged
. I •
3
v10 atlons:
Qatar's distinction between the .. preemptive·' operation of the rule requiring exhaustion
of local remedies in the context of diplomatic protection and its .. protective" operation in
international human rights-' does not in any way change or affect the UAE's analysis.
While the remedies that the domestic legal system of a State provides undoubtedly have a
protective function, in the sense that victims of alleged human rights violations can use
those remedies to voice their grievances, it remains the case that no international
machinery can nonnally be activated for such alleged violations until those domestic
remedies are exhausted.
Qatar suggests that the silence in Article 22 of the International Convention on the
Elimination of All Forms of Racial Discrimination (the '·Convention'") as to the
applicability of the requirement of exhaustion of local remedies means that the rule does
not apply to interstate procedures. 5 This assertion is however undermined by the
Convention ·s Article 11. pursuant to which the inter-State procedure before the CERD
Committee is subject to the requirement of exhaustion of local remedies. Moreover, the
Article 22 procedure cannot be activated unless .. the procedures expressly provided for in
1 Response on behalf of the State of Qatar to the questions posed by Judge Cam;:ado Trindade on Friday. 29 June
2018, 3 July 2018 ("Qatar's Response·'). para. 1: Response of the United Arab Emirates to the questions of Judge
Ca111;:ado Trindade. 3 July 2018, p. I.
! Qatar·s Response, paras. 3-4.
; Qatar's Response, paras. 4 and 6.
•
1 Qatar's Response. paras. 5-6.
5 Qatar's Response. para. 8
this Convention•·, including notably those contained in Articles 11-13, have not resulted
in the settlement of the dispute.(, Therefore, there was no need to incoqJorate the
requirement of exhaustion of local remedies in A11icle 22. In any case, the Convention
says nothing to exclude that in State-to-State procedures under Article 22, the exhaustion
of local remedies rule applies under general international law.
In other human rights treaties providing for an inter-State procedure similar to the one
established under Articles 11-13 of the Convention. the requirement of exhaustion of
local remedies has been upheld in cases where the preponderant objective of a Statc·s
claim is to seek redress for wrong suffered by its nationals.
7
f n light of the fact that the
preponderant element of Qatar's Application, and, in pat1icular, of its Request fiw the
Indication of Provisional Measures is to seek redress for alleged harm done to Qatari
citizens,8 a.fortiori, the rule of exhaustion of local remedies is applicable.
As regards Qatar's belated reliance on the erga omnes partes character of the obligations
under the Convention9
• the Court in Armed Activities on the Terri101:v ,d· 1he Congo
(Democralic Republic c?f· Congo 1i Uganda), treated part of Uganda·s second
counterclaim (relating to breach of the international minimum standard in respect of
alleged maltreatment of Ugandan nationals not enjoying diplomatic status) as being a
claim having the character of diplomatic protection. As a consequence it assessed
compliance with the requirements of nationality and exhaustion of local remedies, and
went on to find that there was insufficient proof of compliance with the requirement of
nationality, such that this part of the second counterclaim was inadmissible. JO
The later decisions of the Court in Questions relating to !he Obligation lo Prosecute or
Extradi1e, and also the Provisional Measures Orders in Georgia 1􀀄 Russian federation
"CR 2018/13. p. 21, para. 8 (6) (Pellet).
7 Appl. N. 788/60. A11s1ria v lta(r. decision of 11 January 1961, Report of the Plenary Commission. Council of
Europe doc. A-84-548, p. 27: " ... it is manifest that the principle upon which the domestic remedies rule is founded
and the considerations which led to its introduction in general international law apply not less but a fortiori to a
system of international protection f-sc. the system of the European Convention on Human Rights-] which extends to
a State's own nationals as well as to foreigners" (emphasis in text); Appl. N. 34382/97, Denmark.,, Turkey. decision
of8 June 1999: ·'[t]he rule of exhaustion of domestic remedies,[ ... ] applies to State applications (A11icle 33) in the
same way as it does to ·'individual'' applications (A11icle 34). when the applicant State does no more than denounce
a violation or violations allegedly suffered by individuals whose place is taken by the State [ ... ]": On the
preponderance test, see International Law Commission. Draft Articles on Diplomatic Protection, Ojjicial Records C?f
the Generc,/ Assemb(v. Sixty-first Session. Supplement No. 10 (A/61/10) (:!006). Article 14(3) which provides that:
'·Local remedies shall be exhausted where an international claim. or request for a declaratory judgement related to
the claim. is brought preponderantly on the basis of an injury to a national or other person referred to in draft article
8." See also, Draft Articles on Diplomatic Protection. Commentary to Article 14, para. ( 11 ): "lf a claim is
preponderantly based on injury to a national this is evidence of the fact that the claim would not have been brought
but for the injury to the national."
8 QR. para. 19; QA. para. 65.
9 Qatar's Response. para. 8.
'° Armed Actfrities on the Territo/)' of the Congo (Democratic Republic (?(the Congo"· Ugandll). Judgment. J.C.J.
Reports 1005. pp. 275-276. paras. 328-333.
and Ukraine v. Russian Fecleraliun ( on which Qatar rcl ies 11
) can be distinguished and are
not inconsistent with the UAE's analysis.
ln particular. in Questions relating lo the Obligation to Prosecute or Extradite, Belgium
was not seeking reparation on behalf of individuals, but only declarations ,,s to the
violation by Senegal of its obligations. 1 ::? By contrast, in the present case, Qatar is
unambiguously seeking compensation on bchal r of its nationals. with the result that (as
was argued by the lJAE in the lirst round 1 :1), thjs is a claim having the character of
diplomatic protection and the nomml requirements therefore apply.
With respect to Georgia v. Russian /<ederation and Ukraine I'. Russian Federation, no
objection was taken in either case on the basis that the claims were by way of diplomatic
protection. or that the requirements of nationality and exhaustion of local remedies had
not been complied with. The Comt said nothing to suggest that the requirement of
exhaustion of domestic remedies does not apply in cases brought before it on the basis of
Article 22 of the Convention where a claim is brought on behalf of individuals.
2. Is it necessary to address the plausibility of rights in face of a continuing situation
allegedly affecting the rights protected under a human rights treaty like the
International Convention on the Elimination of All Forms of Racial Discrimination'!
In brief, Qatar does not deny that the sh011 answer to this question is ··yes'·. Both Parties
are agreed that it is necessary to address the plausibility of rights in the situation currently
being considered by the Court.
Legal Plausibility
The difference between the two States, therefore, revolves around the conditions required
in order for the agreed plausibility criterion to be satisfied. The UAE has taken the
position that the doctrine of plausibility constitutes a balance between regard for those
individuals, groups and States claiming a violation ofrights (whether or not in the field of
human rights) and the procedural requirements of the Court seeking to adjudicate
between States as to their rights and obligations under international law. Evaluation of the
plausibility of the rights claimed to have been violated is an indispensable preliminary
step in the adjudicative process and cannot be dispensed with. It also flows from the
11 Qatar"s Response. para. 8.
I! Questions relutilw. to the Obligation to Prosecute or £ttradite (8elgi11111 r Senegal) . .Judgmenl. J.C../ Reports
20/2, p. 428. paras. 12-14: see also Memorial of the Kingdom of Belgium. I July 2009, pp. 82-83. Cflntemational
Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts. Official Recordr of the
General Assemb􀂊v. Fifty-sixth Session, Supplement No. 10 (A/56110) (2001 ). Article 48(2)(a) and (3).
D CR 2018/13, p. 28, paras. 2-3 (Treves).
recognition that an order from the Court for an indication of provisional measures under
A11iclc 41 of its Statute is binding. 14 Both sides agree on this.
Qatar's conclusion is. however. that ''the plausibility inquiry remains a limited one. in
which the Com1 conducts ·some minimum review· to assess whether the applicant has
sufliciently demonstrated that the rights it asserts might have been breached ...
1;; In
reaching this conclusion. Qatar. in its rather lengthy reply lo the question. examines the
case law. but in so doing emphasises some elements to the detriment of others. Qatar
points to the supposedly ·'low threshold"' required to satisfy the plausibility test, which is
'·especially important when it comes to the protection of' rights under a human rights
treaty". H, There are two points to be noted here. First. Qatar accepts that there is indeed a
threshold, but secondly it introduces the notion of ·•tow threshold", a tenn which docs not
appear in the case law.
As demonstration for the existence of a "low threshold" for plausibility, Qatar refers to
the quotation by the Court from the Questions relating to the Obligation to Prosecute or
Extradite (Belgium ,􀆌 Senegal) case concerning the requirement that the rights alleged
.. need only be grounded in a ·possible interpretation· of the legal instrument in
question". 17 However, it is necessary to examine the relevant passage in full. It reads as
follows:
Whereas at this stage of the proceedings, the Court does not need to
establish definitively the existence of the rights claimed by Belgium or lo
consider Belgium's capacity to assert such rights before the Court; and
whereas the rights asserted by Belgium, being grounded in a possible
interpretation of the Convention against Torture. therefore appear to be
plausible. 18
It can thus be seen that Qatar has taken one element only out of the equation. The key
element is that the Court did not need to establish "definitively'' the existence of the
rights and within this context, the rights asserted need to be .. grounded'" in a possible
interpretation. There are thus three elements. First. that the test does not need to reach the
level of '·definitively" establishing the existence of the rights. although this level
constitutes at least a marker. Secondly. that the rights as claimed must be "grounded"
which means a certain standard of relevance and applicability: "grounded'' as an
expression means founded or based with some solidity. It has a meaning that goes beyond
mere reference. It must mean that a certain standard of substantial connection has been
demonstrated that goes beyond simply alluding to or just mentioning the convention in
1,1 laGra/111 (Germ,11􀃋r v. United Stutes of America). Judgment. /.C.J. Reports 200/. pp. 466, 506, para. 109 ("the
Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect''). See
also Pulp Mills (Arg1mli11a v Uruguay/. Provisional Measures. Order of 13 .lu􀁜v 2()06. Separate Opinion of Judge
Abraham, /. CJ. Reports !006. p. 140, para. 8. 1􀀅 Qatar's Response. para. '.!3. 11'
Ibid. para. 13. See also para. 14 ('·existing low threshold").
17 I bid. para. 13.
18 Questions rttluting lo the Obligation tu Prosec:ute or E.wrad,te (Belgium v. Senegal) Provisional ,\/e(ISl/res, Order
rf28 May 2009. I.CJ. Reports 1009. p. 152, para. 60.
question. Thirdly, that an interpretation of the Convention is "possible .. implies that there
must be a ce11ain level of confidence that the argued interpretation is at least potentially a
valid one. Qatar's selective quotation, therefore. is misleading.
In order to understand the context in which this has arisen, one needs to consider the
Separate Opinion or Judge Abraham in Pulp Mills. which may be seen as the origin of the
doctrine of plausibility of rights. Judge Abraham's point was that by indicating
provisional measures. ··the Cou11 necessarily encroaches upon the respondent's sovereign
rights··. so that .. the obligation thus imposed must rest on suflicicntly solid legal ground.
especially when the party in question is a sovereign State ... Judge Abraham declared that:
I find it unthinkable that the Court should require particular action by a
State unless there is reason to believe that the prescribed conduct
con-csponds to a legal obligation (and one predating the Court's decision)
of that State. or that it should order a State to refrain from a particular
action. to hold it in abeyance or to cease and desist from it. unless there is
reason to believe that it is, or would be, unlawful. 19
As Qatar notes,2° Judge Abraham stated that the Court could not make a provisional
measures order --unless the Court has carried out some minimum review to determine
whether the rights claimed actually exist and whether they are in danger of being
violated".21 Minimum review ··or giving some thought to the substance··. as Judge
Abraham puts it.22 was a variable concept. but ·'the most important point is that the Court
must be satisfied that that the arguments are sufficiently serious on the merits".23
It is thus inaccurate for Qatar to conclude that Judge Abraham '"stressed that it [the
appropriate test] was a low threshold of ·some minimum rcview·".2-t It is clear that there
is here a two-fold requirement. First that the review or consideration by the Court could
not be on a par with a merits hearing with detennination as to rights and obligations in
advance of arguments by the Parties. It could be no more than a preliminary
consideration. But. secondly. that such review had to ensure that the arguments put
forward by the requesting State were ·'sufficiently serious on the merits'·. To put it
another way. the review may be a ··tow threshold .. (in Qatar's terminology). but the
substance and consideration of that review most certainly could not be.
It is, of course. not possible for the Court at this stage of the proceedings to conduct an
·'in-depth consideration of the likelihood of success on the merits .. nor can it ··prejudge
1'1
Pulp A/ills (Argentina ,. ruguayJ. Pronsional .\le 1s111·t·s. Order of 13 Ju􀃦r :!006. Separate Opinion of Judge
Abraham, /.CJ. Reports 2006. p. 139, para. 6.
20 Qatar· s Response. para. 17.
􀀂1
Pulp Mills (.4rgentina r ruguay), Provisional lvfeasun:s. Order of 13 Jub· 2006. Separate Opinion of Judge
Abraham, /.CJ. Reports ]U06. p. 140. para. 8.
􀀃2
Ibid, para. 9.
23 Ibid, p. 141, para. JO.
2
􀀄 Qatar's Response. para. 18.
the merits of the claim''. · but that docs not mean that such matters arc of no importance
or relevance. This was the whole point of .Judge Abrnham's inllucntial Scpurate Opinion
\\hich led to the acceptance of the plausibility requirement. It was, and remains.
necessary to show that the claims of the State seeking the indication of r,rovisional
measures were "suflicicntly serious on the merits''. as .Judge Abraham put it.2
' There is a
good reason for this. A sovereign State cannot be ordered to undertake or refrain from
undertaking a particular course of action on the basis of barely substantiated or vexatious
or negligible claims. There has to be a tangible or plausible basis for such claims. No
more, bur no less.
Factual Plausibility
But as Qatar recognises, there is a second clement to be satisfied. according to the
caselaw and that is whether it is ·'plausible that the rights invoked are applicable to the
factual situation at hand''.
27
Although Qatar did not address this issue in its oral pleadings.
it has clear resonance in the present case.
In Ukraine ,􀆯 Russia. the Court in addressing Ukraine ·s rights under the International
Convention for the Suppression of the Financing of TetTorism (the '·ICSFT'') for the
purposes of an indication of provisional measures. noted. after an analysis of the relevant
provisions of that convention. as follows:
75. ... the acts to which Ukraine refers (see paragraph 66 above) have
given rise to the death and injury of a large number of civilians. However,
in order to determine whether the rights for which Ukraine seeks
protection arc at least plausible, it is necessary to asce11ain whether there
are sufficient reasons for considering that the other elements set out in
Article 2. paragraph l, such as the elements of intention or knowledge
noted above (see paragraph 74), and the element of purpose specified in
Article 2, paragraph I (b). are present. At this stage of the proceedings.
Ukraine has not put before the Court evidence which affords a sufficient
basis to find it plausible that these elements are present.
76. Therefore. the Court concludes that the conditions required for the
indication of provisional measures in respect of the rights alleged by
Ukraine on the basis of the ICSFT are not met. :!S
The key test thus appears clearly in two necessary criteria. First. the relevant legal
provision has to be identified and analysed as to its core requirements in order to identify
whether "there are sufficient reasons for considering the ... elements [in the provisions in
􀀱􀀲 Qatar's Response, para. 19.
20 Pulp Mills (Argemina r Urugm􀃀r). Prm·isional l\leasnres, Order of 13 Ju􀃁r 2006. Separate Opinion of Judge
Abraham. I. C.J. Reports 2006. p. 141. para. I 0.
]
7 Qatar's Response. para. 20.
18 Application of the International Co11ve111io11.for 1he Suppression if the Financ:ing <􀃂f l111ernatio11al Terrorism and
of the International Com·ention on the Eliminarion ,f All Forms of Racial Discrimination (Ukraine r. Russian
Federation). Provisional Measures, Ord1tr c?f /9 April 2017. paras. 75-76.
2<> Ibid.
question I arc present". Secondly, to sec whether the requesting Stale has put before the
Court ··evidence which affords n sullicicnt basis lo lind it plausible that these elements
arc present". These two conditions refer respectively to legal and factual plausibility.
Ukraine was deemed to have foiled in this task in so for as the lCSFT was concerned.29
As to the claims under the Convention. the Court concluded that: "in the context of a
request for the indication of provisional measures, a State party to Convention may avail
itself of the rights under Articles 2 and 5 only if it is plausible that the acts complained of
constitute acts of racial discrimination under the Convention". 10 The Court held in the
circumstances that: "on the basis of the evidence presented before the Court by the
Parties, it appears that some of the acts complained of hy l lkraine fulfil this condition of
plausibility. This is the case with respect to the banning of the At/ejlis and the alleged
restrictions on the educational rights of ethnic Ukrainians''.31
It is important to note the nature and quality of the evidence that the Court relied upon.
This evidence included a General Assembly resolution. and reports from the Office of the
United Nations High Commissioner for Human Rights (the '·OHCHR"") and the
Organization for Security and Co-operation in Europe (the "OSCE''). The OSCE report.
for example, is a detailed and thorough 100 page report from a combined mission of the
OSCE Office for Democratic Institutions and Human Rights and the OSCE High
Commissioner on National Minorities. This Mission engaged in extensive and
independent fact-finding and included a series of recommendations to interested pai1ies.32
This is to be compared with the paucity of independent evidence from Qatar in the instant
case. Qatar relies heavily on the anonymised and unverified reports of its own National
Human Rights Committee and the OHCHR Technical Mission to Qatar report,33 which
has been heavily criticised by States. including the UAE. and which relied virtually
exclusively upon Qatari sources.
3"' T he OHCHR report contained only 15 pages and can
in no way be seen as an independent and thorough fact-finding operation. The nature and
quality of Qatar·s evidence has been addressed by the UAE in some detail in the oral
I d. 3,,; p ea mgs.··
Further. and this is a significant difference to the Ukraine case. the UAE has submitted
vital evidence, statistically underpinned, which clearly rebuts virtually all of Qatar's
:m lb1" d . para. 8'>- ·
'1
Ibid, para. 83.
:;1
0SCE (Office for Democratic Institutions and Human Rights & High Commissioner on National Minorities).
"Repo11 of the Human Rights Assessment Mission on Crimea (6-18 July 2015 )'". 17 September 2015. (available at
https://www .osce.org/odihr/report-ot:.the-human-rights-assessment-mission-on-crimea?download=true ). at pp. 9-14
(recommendations); and at pp. 15. paras. 23-24 (investigative methodology).
;, Qatar"s Application. Annex 16.
H CR 2018 13. p. 67, para. 46 (Shaw).
'
5
CR 2018'15. pp. 25 - 35. paras. I - 28: especially pp. 26-27. para. 3-7: pp. 32-33. paras. '.!2-25 and pp. 34 - 5,
paras. 26-8 (Buderi). See also CR 2018/13. pp. 12-15. paras. 10-20 (Alnowais). pp. 32-34, paras. 17-24 (Treves) and
pp. 63-7 l . paras. 23-57 (Shaw).
arguments. including in particular, the allegation consistently repeated by Qatar·s
Counsel that there has been a "collective expulsion" of Qataris from the UAE.
3
''
On the subject of rebuttal. it is to be noted that during their first round of oral pleadings,
Qatar made general criticisms of some of the evidence. and promised to deal "more fully"
in the second round with the documents that the UAE had deposited with the Court in the
second round:n Apart from brief and again rather general observations concerning the
evidence submitted by the UAE relating to the special telephone line and education, this
curiously never happened.
3R
Plausibility and Human Rights Treaties
Qatar has argued that ·'the most modest showing should be required for purposes of
meeting the ·plausibility' requirement in human rights cases.39 1t is not clear why. The
fact that on the whole a more generous approach to treaty interpretation has been taken in
the case of human rights treaties cannot be taken to mean that the Com1·s procedural
requirements in the case of the indication of provisional measures has been transformed
where human rights treaties are concerned. There is no support in the Court's
jurisprudence for the proposition that the Com1 has special rules of jurisdictional
competence for interim measures in the case of human tights treaties. There is nothing in.
for example the recent Ukraine ,,. Russian Federation case40 or the earlier Georgia v
Russian Federation case41 to suggest that this has happened or indeed that it should
happen. Pulp Mil/.<.l1 concerned inter alia environmental rights, Belgium ,, Senega/43
concerned possible extradition for crimes involving the Convention against Tot1ure and in
customary international law, other provisional measures cases have also implicated
human rights issues. Nowhere does one find that the Court applied a different approach as
to the grant of provisional measures in such cases. The same essential requirements as to.
for example, prima fctcie jurisdiction. plausibility of rights claimed, irreparable prejudice
and urgency apply and there is no lesser standard proposed in such matters. If the Court
came to different conclusions as to whether to indicate provisional measures with regard
to different treaties in Ukraine ,􀄽 Russian Federation. this was not because one treaty in
question was a human rights treaty and the other was not; it was because the necessary
criteria had been fulfilled in one case and not in the other.
:;1, See CR 2018/ 13, pp 56-71. paras. 1-58 (Shaw).
n CR 1018 12. p. 39-40. para. 15 (Amirfar) ('· ... this collection of materials consists of largely self-serving
statements from UAE government officials, presented mostly in redacted form and selectively chosen to paint an
apparent happy picture of Qataris freely moving and living between Qatar and the UAE since June 2017 .. .'') and p.
63. para. 45 (Goldsmith).
::s CR 1018/14. pp. 36-37, paras. 22-25 and pp. 4::!-43. paras. 53-5􀃨 (Goldsmith).
;•>Q • R "'4 · atar s esponse, para . .!. •
􀄡u Application nf the lntemutiunal Cv11wntio11 for the Suppression of the Financing of /111ematio11al Terrori.rn1 and
t􀄢( the lntemational Com·ention 011 the Elimi,wtion of All Forms of Racial Discrimination (Ukraine r. Russian
Federation). Provisional Measures, Order of 19 April 20 I 7.
􀄣• Application of the International Conwmtion on the Elimination of All Forms of Racial Discrimin"tion (Georgia v.
Russian Federation), Prorisional Measures. Order of J 5 October 2008. J.C.J. Reports 2008, p. 353.
': Pulp A•Jills (Arge111ina v ruguayJ. Provisio11al Measures. Order of I 3 J11􀄤1· 2006, I.CJ Reports 2006.
'·' Questions relating to the Obligation to Prosecute or £r:tradite f BelRi11111 , .. SenegaO. Provisional !vleas11re.􀄥. Order
of 18 May 2009, I. C..J. Reports 2009. p. 139.
Qatar argues in this context that '·where there is undisputed evidence that the 5 June 201 7
policy stall!ment or the UAE·s discriminatory measures against Qataris as a group has not
been revoked ... this should suffice to fulfil the plausibility of the claim that rights under
the Convention might be breached:14 The UAE has dealt fully in the oral pleadings with
the question of the claimed ·'collective expulsion''. as alleged by Qatar.-15 In order to deal
finally with this claim by Qatar, the UAE has today issued a press statement in which it is
made clear that (I) Qatari citizens already resident in the UAE need not apply for
permission to continue such residence. (2) no legal or administrative laws or orders
relating to expulsion of Qaturi citizens from the UAE have been issued and (3) the UAE
has taken no action to expel Qatari citizens remaining in the UAE following the expiry of
the 14 day period referred to in the 5 June announcement.46
There is. accordingly. no ··low threshold'" with regard to plausibility generally nor
specifically with regard to human rights conventions.
3. What are the implications or effects, if any, of the existence of a continuing situation
allegedly affecting rights protected under a human rights Convention, for requests
of Provisional Measures of Protection?
As noted in the UAE"s response to question 3. where there is a continuing situation of
violation of human rights, the Court would be sensitive to this and treat it with all gravity.
However. the Court is a judicial institution, bound by its Statute and Rules. and cannot
ignore the norms to which it is subject nor the procedural requirements by which it is
constitutionally bound. Qatar does not suggest to the contrary.
Instead. Qatar argues that where there is such a continuing situation allegedly affecting
the rights in dispute, .. the requirement of a real and imminent risk is necessarily
satisfied'· . ..J7 One does not follow from the other. It is not correct that the condition as to
risk is '·necessarily" satisfied. It depends upon the particular factual circumstances. The
facts may indeed be such as to fulfil the condition as to real and imminent risk. Or they
may not. That will be a matter for the Court to determine. There is no .. necessarily"'
involved.
Similarly. it is not accepted that .. irreparable prejudice is the natural consequence of
restrictions .. on rights under human rights trcaties.48 It may indeed be the result in
particular situations, but, again. this is context-dependent and not inevitable. The UAE
has addressed this question in its oral pleadings.49 The case law does not sustain an
•1•1 Qatar's Response, para. 28.
"
5
CR 2018/13. p. I 0. para. 3 (Alnowais), pp. 32-3. paras. 17 - 18 (Treves) and pp. 63 - 5. paras. 23 - 31 (Shaw);
CR 2018/15. p. 38, paras. 10 - 12 (Shaw).
"'' Attached to this Response. and available at https· www.mofa.gov.ae EN/MediaCenter/News Pages'05-07-2018-
UAE-Statement-of-MoF AIC .aspx.
"
1
Qatar's Response. para. 31.
"8 Ibid, para. 32.
"
9
CR ::!O 18/ I 5. p. 60, para. 13 (Shaw).
argument of automatic or natural consequence here. It is dependent upon the purticulm
facts of the situation. References by the Court to possible prejudice in such circumstances
cannot be interpreted as an absolute rule. The terms used by the Court, for example. in
l lkmine ,􀄽 Rus.,·ian Federatio11 arc instructive. The Court noted that:
.. certain rights in question in these proceedings, in particular, the political.
civil. economic, social and cultural rights stipulated in A11iclc 5.
paragraphs (c), (tO and (e) of CERD are or such a nature that prejudice to
them is ea able of causing irreparable harm. Based on the information
heforc it at this juncture. the Com1 is of the opinion that Crimean Tatars
and ethnic Ukrainians in Crimea appear to remain vulnerable". 50
The Court accepts that prejudice to the rights in question "is capable of causing
irreparable harm'", not that it inevitably does so. Further. the issue is decided upon the
basis of persuasive evidence, not on smmise or supposition.
The perceived vulnerability of individuals and groups is certainly relevant, but it has to
be shown to be credible or plausible. It has to be proved. It cannot simply be alleged on
the basis of evidence which is flimsy or frail, or based considerably upon tendentious
sources.
Qatar finally maintains that it has submitted "independent reporting showing continuing
harm .. and claims that this is .. the exact type of evidence·· that has sufficed for the Com1
in previous cases (citing Ukraine 1· Russian Federation and Georgia v Russian
Federation). 51 This has already been dealt with earlier in this response. Suffice it to recall
that the evidence it has supplied is qualitatively different from that submitted in the
earlier cases. and further has been made by countervailing evidence submitted by the
UAE which disproves the accuracy of the allegations made.
The UAE supports the application of the norms of international law in all their
manifestations. This applies just as much to human rights as to terrorism. It fully supports
the International Court of Justice in its interpretation and application of the relevant rules
and principles and within the framework of the Court's own constitutional processes and
procedures.
􀀕" See e.g. Application of the International Conwmion for the Suppression of the Financing of /11tematio11al
Terrorism and of the International Convention on the Eliminulion of All Forms of Racial Discrimination (Ukruine r .
fussian Federation), Prol'isionul Meusures. Order <?f 19 April 20/ 7. para. 96 (emphasis added).
• 1 Qata(s Response, para. 36.
7/5/2010 New:1
NEWS
􀀵 > Media Center > 􀀶 > An official Statement by The UAE Ministry of Foreign Affairs
and International Cooperation.
I An official Statement by The UAE Ministry of Foreign
Affairs and International Cooperation.
715/2018
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MINISTRY OFF REIGN AF A RS
& INTERNATIONAL COOP RATION
Since its announcement on June 5, 2017, pursuant to which the United Arab Emirates (UAE)
took certain measures against Qatar for national security reasons, the UAE has instituted a
requirement for all Qatari citizens overseas to obtain prior permission for entry into the UAE.
Permission may be granted for a limited-duration period, at the discretion of the UAE
government.
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7/5/2018 Nowr.
The UAE Ministry of Foreign Affairs and International Cooperation wishes to confirm that
Qatari citizens already resident in the UAE need not apply for permission to continue
residence in the UAE. However, all Qatari citizens resident in the UAE are encouraged to
obtain prior permission for re-entry into UAE territory.
All applications for entry clearance may be made through the telephone hotline announced
on June 11, 2017 (+9718002626).
As a result of the false accusations made by the State of Qatar against the UAE, the UAE
deems it necessary to affirm its long-standing policy on the entry and residence conditions
applicable to persons of Qatari citizenship. Since the announcement severing relations with
Qatar was made by the UAE Ministry of Foreign Affairs and International Cooperation on
June 5, 2017 in support of the same decisions of the Kingdom of Bahrain and the Kingdom
of Saudi Arabia, the UAE has not issued any legal or administrative laws or orders relating to
the expulsion of Qatari citizens from UAE territory. The UAE took no action to expel Qatari
citizens and national who remained in the UAE following the expiry of the 14 day period
referred to in the June 5, 2017 announcement.
The UAE regrets that Qatar continues to misrepresent the UAE's policy on the entry and
residence conditions applicable to Qatari citizens. The UAE affirms its full respect and
appreciation for the people of Qatar.
The UAE will continue to maintain all measures instituted against the Qatari government to
address the threat it poses to regional security and the people of the UAE. The UAE calls
upon Qatar to respect its international commitments and to cease its policies of sponsoring
and harbouring terrorist organizations and individuals, interfering in the affairs of its
neighbours and giving a platform to extremists through its religious institutions and its
government controlled media networks.
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