Request for the indication of provisional measures of the United Arab Emirates

INTERNATIONAL COURT OF JUSTICE
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 TO
PRESERVE THE UNITED ARAB EMIRATES’ PROCEDURAL RIGHTS
AND TO PREVENT QATAR FROM AGGRAVATING OR EXTENDING
THE DISPUTE
SUBMITTED BY THE UNITED ARAB EMIRATES
22 March 2019
I. INTRODUCTION .................................................................................................................... 1
II. IMPORTANT RELEVANT BACKGROUND AND FACTS UNDERLYING
THIS REQUEST ....................................................................................................................... 1
III. THE COURT’S JURISDICTION ......................................................................................... 12
IV. THE REASONS UNDERLYING THIS REQUEST ........................................................... 14
A. Qatar has abused its rights under the CERD by initiating two parallel
proceedings based on the same facts before both the CERD
Committee and this Court ....................................................................................... 15
B. Qatar has failed to comply with the Court’s 23 July 2018 Order by
hampering the UAE’s attempts to assist Qatari citizens, including by
blocking access by Qatari citizens to the website by which Qatari
citizens can apply for a permit to return to the UAE, and by using its
national institutions and State-controlled media to inflame the dispute ................. 21
V. THIS REQUEST SEEKS TO PRESERVE THE UAE’S PROCEDURAL
RIGHTS AND TO PREVENT QATAR FROM FURTHER
AGGRAVATING OR EXTENDING THE DISPUTE........................................................ 24
A. The Court should grant this Request on an urgent basis to protect the
UAE’s procedural rights in this case ...................................................................... 25
B. The Court should grant this Request on an urgent basis to prevent
Qatar from further aggravating or extending the dispute ....................................... 29
VI. IF THIS REQUEST IS NOT GRANTED URGENTLY, THE UAE WILL
SUFFER IRREPARABLE HARM ....................................................................................... 30
VII. THE SPECIFIC MEASURES REQUESTED ..................................................................... 33
1
I. INTRODUCTION
1. The United Arab Emirates (the “UAE”) refers to the Application filed with
the Court by the State of Qatar (“Qatar”) on 11 June 2018 (the
“Application”) instituting proceedings against the UAE. In accordance with
Article 41 of the Statute of the Court (the “Statute”) and Articles 73 to 75 of
the Rules of Court (the “Rules”), the UAE submits the present urgent request
(the “Request”) that, as further elaborated below, the Court indicate
provisional measures in order to: (i) preserve the UAE’s procedural rights in
this case; and (ii) prevent Qatar from further aggravating or extending the
dispute between the Parties pending a final decision in this case.
2. The UAE respectfully urges the Court to treat this Request as a matter of
urgency and set a hearing for the earliest possible date. The UAE further
requests that, pending the meeting of the Court, the President of the Court
exercise his powers under Article 74(4) of the Rules and call upon Qatar to
act in such a way as will enable any order the Court may make on the Request
to have its appropriate effects.
II. IMPORTANT RELEVANT BACKGROUND AND FACTS
UNDERLYING THIS REQUEST
3. As the UAE has explained in this and other proceedings before this Court, the
real issue between Qatar and the UAE is Qatar’s long-standing and notorious
record of supporting and promoting terrorist and extremist groups that target
vulnerable communities and individuals around the world.1 Exacerbating
1 See, e.g., Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Verbatim
Record, CR 2018/15, 29 June 2018 at 4.30 p.m., page 38, paragraph 10. See also Appeal
2
this, Qatar has systematically used Al Jazeera and other media outlets owned,
controlled or funded by Qatar as a platform to disseminate false news and to
support extremist and terrorist groups. Through its State-controlled media
propaganda, Qatar has given these groups legitimacy and reach throughout
the Middle East and North Africa (“MENA”) region and the world. These
groups are responsible for the intentional killing, rape, torture, maiming and
forced displacement of countless innocent civilians.
4. During the period from 2011 to 2013, the threats posed by extremist groups
reached a critical point in the MENA region. The violence from which
vulnerable individuals and groups in the region were suffering, and in which
Qatar was centrally involved as a State-sponsor of terrorism and extremism,
demanded a collective regional response. As a result, between November
2013 and November 2014, the UAE, Qatar, the Kingdom of Bahrain, the
State of Kuwait, the Sultanate of Oman and the Kingdom of Saudi Arabia
concluded a series of binding agreements under the auspices of the Gulf
Cooperation Council (the “GCC”) in order to address the threats posed by
extremist groups (the “Riyadh Agreements”).2
5. Pursuant to the Riyadh Agreements, Qatar expressly undertook not to support
“any of the organizations, groups or individuals that threaten the security of
Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on
International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v.
Qatar), Memorial of the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of
Saudi Arabia and the United Arab Emirates, Volume I of VII, 27 December 2018, Chapter I,
Section 3 and Chapter II, Annex 1.
2 First Riyadh Agreement, 23 and 24 November 2013, United Nations Registration Number
55378 (“First Riyadh Agreement”), Annex 2; Mechanism Implementing the Riyadh
Agreement, 17 April 2014, United Nations Registration Number 55378 (“Mechanism
Implementing the Riyadh Agreement”), Annex 3; Supplementary Riyadh Agreement,
16 November 2014, United Nations Registration Number 55378 (“Supplementary Riyadh
Agreement”), Annex 4.
3
the [GCC] states” or any type of “antagonistic media”.3 Qatar further
undertook “[n]ot to give refuge, employ, or support [. . .] to any person or a
media apparatus that harbors inclinations harmful to any [GCC] state”.4
Notably, the Supplementary Riyadh Agreement expressly referred to Qatar’s
State-owned and controlled news network Al Jazeera.5 In the Riyadh
Agreements, Qatar also expressly agreed “[n]ot to support external gatherings
or groups in Yemen, Syria or any destabilized area, which pose a threat to the
security and stability of GCC Countries”.6
6. Despite these express undertakings by Qatar and its implicit acceptance of the
factual elements of which they are composed, Qatar has continued to support
and promote terrorist organisations and to incite extremism through the use of
its propaganda mouthpiece, Al Jazeera (particularly the Arabic-language Al
Jazeera outlets), and other media outlets owned, controlled and funded by
Qatar.7 Qatar has continued to support and promote rebel factions engaged in
violent conflict against the internationally recognised Government in Yemen.
It also has used its State-controlled media outlets, such as Al Jazeera, to
spread false news about the measures that have been introduced by the UAE
3 First Riyadh Agreement, Articles 1 and 2, Annex 2 (quotes translated from Arabic original).
4 Supplementary Riyadh Agreement, Article 3(c), Annex 4 (quote translated from Arabic
original).
5 See Supplementary Riyadh Agreement, Article 3(d), Annex 4.
6 Mechanism Implementing the Riyadh Agreement, Article 2(c), Annex 3 (quote translated
from Arabic original). See also First Riyadh Agreement, Article 3, Annex 2.
7 See Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the
Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab
Emirates v. Qatar), Memorial of the Kingdom of Bahrain, the Arab Republic of Egypt, the
Kingdom of Saudi Arabia and the United Arab Emirates, Volume I of VII, 27 December
2018, Chapter II, Section 4, Annex 1.
4
in response to Qatar’s violations of international law that are the subject of
the present case.8
7. Qatar’s actions threaten not only the stability and security of the UAE and of
the other GCC States. They also threaten the stability and security of many
other areas in the world and the lives of numerous vulnerable communities
and individuals that suffer the consequences of terrorism.
8. During the first half of 2017, Qatar exacerbated the unrest in the MENA
region by seeking to revoke the Riyadh Agreements.9 In light of this, and in
view of Qatar’s persistent breaches of its international law obligations, on
5 June 2017, the UAE terminated diplomatic relations with Qatar.10 It
8 See Section IV.B below.
9 Qatar signalled that it was seeking to resile from the Riyadh Agreements in a letter to the
Secretary-General of the GCC on 19 February 2017. Qatar claimed that “the subject of this
agreement has been exhausted” and called upon the GCC States to “agree to terminate the
Riyadh agreement which has been overtaken by events at the international and regional
levels”. Qatar also claimed – for the first time – that the Riyadh Agreements constituted an
“abandonment” of the GCC Charter and did not “serve the interests and objectives of the
GCC”, calling for a return to the GCC principles. Letter from HE Mohammed Bin
Abdulrahman Al-Thani (Minister of Foreign Affairs of Qatar) to HE Dr Abdullatif Bin
Rashid Al Zayani (Secretary-General of the GCC), 19 February 2017, Annex 5 (quotes
translated from Arabic original).
10 The Arab Republic of Egypt, the Kingdom of Saudi Arabia, the Kingdom of Bahrain, the
Republic of Chad, the Union of the Comoros, the Republic of Maldives, the Islamic Republic
of Mauritania, the Republic of Senegal and the Republic of Yemen also severed diplomatic
ties with Qatar. See “Egypt cut ties with Qatar for ‘supporting terrorist organizations’”, State
Information Service, 8 June 2017 (featuring Foreign Ministry Statement issued on 5 June
2017), Annex 6; “Kingdom of Saudi Arabia severs diplomatic and consular relations with
Qatar 3 Jeddah”, Saudi Press Agency, 5 June 2017, Annex 7; “Statement of the Kingdom of
Bahrain on the severance of diplomatic relations with the State of Qatar”, Ministry of Foreign
Affairs of the Kingdom of Bahrain, 5 June 2017, Annex 8; “Chad shuts down Qatar
embassy”, Emirates News Agency, 23 August 2017, Annex 9; “Comoros severs diplomatic
relations with Qatar”, Saudi Press Agency, 7 June 2017, Annex 10; “Statement by the
Government of Maldives”, Ministry of Foreign Affairs of the Republic of Maldives, 5 June
2017, Annex 11; “La Mauritanie décide de rompre ses relations diplomatiques avec Qatar”,
Agence Mauritanienne d’Information, 6 June 2017, Annex 12; “Senegal, Gabon join boycott
of Qatar”, Middle East Monitor, 9 June 2017, Annex 13; “Yemen cuts diplomatic ties with
Qatar: state news agency”, Reuters, 5 June 2017, Annex 14. Additionally, the Hashemite
Kingdom of Jordan and the Republic of the Niger downgraded diplomatic relations with
5
subsequently took a series of legal measures against Qatar’s Government in
order to induce it to comply with its legal obligations. These measures were
carefully gauged to have the least possible impact on Qatari citizens. Each of
the measures was lawful. None of them violated any international law
obligation of the UAE.
9. Qatar’s State-controlled media, including Al Jazeera, continue to inflame the
dispute by making and repeating incendiary and false claims against the
UAE.11 For example, Qatar falsely asserts that the UAE has imposed a travel
ban on Qataris to prevent them from entering the UAE. This is not true.
Qatar has no evidence of this and, indeed, the evidence confirms that such an
assertion is false.
10. The facts are that, prior to 5 June 2017, Qatari citizens could travel to the
UAE without a visa or any other prior permission. Following its termination
of relations with Qatar, the UAE implemented a system whereby Qatari
nationals must obtain prior permission to travel to the UAE. Requiring prior
permission to travel is in all events not the same as imposing a travel ban.
The principle of obtaining permission prior to travel applies to many other
nationalities. There is no prohibition of such measures under customary
international law. It is a basic and legitimate exercise of sovereignty that is
used by governments worldwide.12
Qatar. See “Jordan downgrades relations with Qatar and bans Al Jazeera”, The National, 7
June 2017, Annex 15; “Niger recalls ambassador to Qatar”, Khaleej Times, 10 June 2017,
Annex 16.
11 See Section IV.B below. This is particularly the Arabic-language Al Jazeera outlets, the
content of which is often radically different from Al Jazeera’s English-language outlets.
12 See, e.g., United Nations, Office of the High Commissioner for Human Rights, Migration,
Human Rights and Governance: Handbook for Parliamentarians No. 24, 2015, pages 19–20
(“[I]nternational law recognizes the right of everyone to leave any country, including their
own, and to return to their own country. However, it does not establish a right of entry to
6
11. Not only was the imposition of a requirement of prior permission to travel to
the UAE entirely legal but the UAE sought to minimise any possible
inconvenience for Qatari citizens.
12. For example, on 11 June 2017, in order to facilitate the entry of Qatari
citizens into the UAE, the Ministry of Interior of the UAE set up a telephone
hotline to help Qatari citizens to use a procedure to apply for a permit to enter
the UAE.13 Subsequently, the Ministry of Interior of the UAE even set up
special access for Qatari citizens on its official visa application website by
which Qatari citizens could apply for a permit to return to the UAE.14 The
telephone hotline can still be accessed, in the event that a Qatari citizen
encounters technical problems with the website.
13. Using these procedures, large numbers of Qatari citizens have continued to
enter and exit the UAE. Official immigration entry and exit records confirm
that, between June 2017 and June 2018, there were thousands of movements
by Qatari citizens across UAE borders.15 Similarly, from 1 June 2018
through 31 December 2018, the number of registered entries and exits of
another country: states retain their sovereign prerogative to decide on the criteria for
admission and expulsion of non-nationals [. . .].”).
13 See Exhibit 2 of the documents deposited by the UAE on 25 June 2018 in the context of
Qatar’s 11 June 2018 Request for the Indication of Provisional Measures. See also
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Order on the Request for the Indication of
Provisional Measures, 23 July 2018, Dissenting Opinion of Judge Crawford, paragraph 6.
14 See Federal Authority For Identity & Citizenship website, available at:
https://echannels.moi.gov.ae
15 See Exhibit 14 of the documents deposited by the UAE on 25 June 2018 in the context of
Qatar’s 11 June 2018 Request for the Indication of Provisional Measures.
7
Qatari nationals into and out of the UAE amounted to 2,876.16 All of these
movements were facilitated by the work of the hotline or the website.
14. Indeed, during the first six months of 2018 alone, the hotline received 1,390
applications. Of this total number, only 12 applications were rejected for
security or other reasons.17 Even more applications were lodged using the
hotline or the website in the second half of 2018. In fact, the updated
evidence submitted herewith demonstrates that, from 9 July 2018 through
22 December 2018, no fewer than 3,563 applications by Qatari nationals were
lodged with the UAE authorities for entry permits to the UAE. Over 94% of
those applications (or 3,353 applications in numerical terms) were accepted.18
Indeed, when reviewing the entire period from when the entry requirements
were announced in June 2017, the UAE has approved over 95% of
applications by Qatari citizens for entry into the UAE.
15. The hotline and the website clearly have been examples of the UAE’s
successful efforts to minimise the inconvenience to Qatari citizens of the
measures taken to induce Qatar to comply with its legal obligations.
Perversely, however, Qatar hampers the UAE’s attempts to assist Qatari
citizens who wish to return to the UAE.
16 See Letter from the United Arab Emirates Federal Authority for Identity and Citizenship to
the Ministry of Foreign Affairs and International Cooperation of the United Arab Emirates,
10 January 2019, Annex 17 (summarising statistics and attaching detailed supporting
statistical records).
17 See Exhibit 3 of the documents deposited by the UAE on 25 June 2018 in the context of
Qatar’s 11 June 2018 Request for the Indication of Provisional Measures, page 1. See also
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Order on the Request for the Indication of
Provisional Measures, 23 July 2018, Dissenting Opinion of Judge Crawford, paragraph 6.
18 See Letter from the United Arab Emirates Federal Authority for Identity and Citizenship to
the Ministry of Foreign Affairs and International Cooperation of the United Arab Emirates,
10 January 2019, Annex 17.
8
16. Qatar has thus made a number of false and unsupported statements regarding
the efficiency of the hotline and website. Qatar has done so in multiple ways,
including in this proceeding, through a number of national bodies and through
its State-controlled media, such as Al Jazeera.19 Contrary to Qatar’s
unfounded statements, the extensive travel-logs of movements by Qatari
citizens across UAE borders prove the efficient working of the hotline and
website.
17. Now, the UAE has come to learn that, despite this – or, more likely, because
of this – early this year, Qatar began blocking internet access from Qatar to
the website, meaning that people living there are prevented by Qatar from
being able to access the website. It appears that it is therefore no longer
possible for Qataris, including Qatari students, families and individuals who
might want to bring proceedings before the UAE’s courts, to access the
website from Qatar, so as to facilitate their return to the UAE. At the same
time as trying to prevent its own citizens from finding out how to return to the
UAE, Qatar continues to disseminate false news regarding the UAE’s
19 See, e.g., Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Verbatim
Record, CR 2018/14, 29 June 2018 at 10 a.m., pages 35–36, paragraphs 20–24 (where Qatar
makes three incompatible and speculative claims regarding the hotline: first, that it is a
“police security channel” to which Qataris would be uncomfortable to resort; second, and
inconsistently, that the hotline in fact has received a large number of calls from Qatari
nationals; and, third, that such calls have resulted in a surprisingly low number of
applications, disregarding the fact that it is for the individual to decide whether or not to
make an application via the hotline (or the website) and that this matter is hence outside the
UAE’s control); “Qatar: Hotline for mixed-families a face-saving act”, Al Jazeera, 11 June
2017, Annex 18 (“Qatar’s National Human Rights Committee has dismissed a move by three
Gulf Arab states, Saudi Arabia, United Arab Emirates (UAE) and Bahrain, to assist
mixed-citizenship families who face the prospect of being split up as ‘little more than a facesaving’
exercise.”). See also Section IV.B below.
9
measures among United Nations bodies and through its State-controlled
media.20
18. Presumably, the success of the UAE’s attempts to assist Qatari citizens is the
reason why Qatar apparently has become worried about the website. Its
existence undermines the legal theories based on fiction that have been
conjured by Qatar. Qatar is trying to block its own people from travelling to
the UAE but in a way that Qatar can still try to blame the UAE. The UAE
respectfully submits that such duplicity and deception should be noted by the
Court and borne in mind at all stages of this proceeding. Qatar has once more
been caught red-handed creating false evidence.
19. Qatar is apparently not content only to disseminate false news through its
propaganda tool Al Jazeera and other State-controlled media outlets. It is
apparently also willing to fabricate evidence and create false facts, obviously
expecting not to be caught. Qatar presumably anticipates being able to make
further false allegations against the UAE before the Court and elsewhere
about Qataris being unable to enter the UAE. This manipulation of evidence
by Qatar exposes to the Court Qatar’s true motivations in prosecuting its
claim against the UAE under the International Convention on the Elimination
of All Forms of Racial Discrimination (the “CERD”). It clearly has nothing
to do with protecting its citizens.
20. As noted above, the measures that the UAE took against Qatar’s Government
were intended to induce Qatar to comply with its obligations under
international law. However, despite its undertakings to the contrary, Qatar
chose not to put an end to its unlawful activities. Instead, in an attempt to
divert attention from its own misconduct, Qatar has, through Al Jazeera and
20 See paragraphs 52–54 below.
10
other media outlets owned, controlled and funded by Qatar and otherwise,
spread false accusations about the measures that have been introduced by the
UAE in response to Qatar’s violations of international law.21
21. In addition, Qatar initiated two abusive parallel proceedings against the UAE
under the dispute resolution provisions of the CERD.
22. The first was a procedure before the Committee on the Elimination of Racial
Discrimination (the “CERD Committee”). The second was the present case,
filed on 11 June 2018, just one month after the UAE was notified of the
CERD Committee proceeding on 7 May 2018. As is explained more fully
below, this pursuit of parallel proceedings under the same, linear dispute
resolution procedure constitutes an abuse of the CERD. Moreover, each of
the procedures is frivolous and vexatious. They are based on meritless
allegations, unsupported by tenable evidence, of purported violations by the
UAE of the CERD. Further, even if factually accurate (quod non), Qatar’s
claims based on alleged discrimination on the basis of nationality fall
manifestly outside the scope of the CERD. Although the Court took no
definitive position on this question in its 23 July 2018 Order regarding
Qatar’s 11 June 2018 Request for the Indication of Provisional Measures (the
“23 July 2018 Order”), it is notable that a significant number of Judges of
the Court took this view. That much is clear from these Judges’ dissenting
opinions and declarations appended to the Court’s 23 July 2018 Order. In
short, none of Qatar’s assertions has any merit.
23. Qatar also has severely aggravated and extended the dispute between it and
the UAE – including after the 23 July 2018 Order – by, inter alia:
21 See, e.g., “‘UAE continues to violate ICJ decision’”, Qatar Tribune, 24 January 2019, Annex
19. See also Section IV.B below.
11
(i) re-instating its pending CERD communication by referring the matter
again to the CERD Committee on 29 October 2018 after it had
abandoned those proceedings by its Application instituting proceedings
before this Court;22
(ii) hampering the UAE’s attempts to assist Qatari citizens, including by
blocking within its territory access to the UAE Government website by
which Qatari citizens can apply for a permit to return to the UAE;23 and
(iii) using its national institutions and State-owned, controlled and funded
media outlets, including Al Jazeera, to disseminate false accusations
regarding the UAE, including untruthful accusations in relation to the
issues in dispute in this proceeding.24
24. Accordingly, provisional measures are urgently required to: (i) protect the
UAE’s procedural rights both under the CERD and in this proceeding from
Qatar’s abusive parallel claims; and (ii) prevent Qatar from further
aggravating and extending the dispute between the Parties. If this Request is
not granted urgently, the UAE’s procedural rights in the present proceeding
will be irreparably harmed and the Parties’ dispute might become impossible
to resolve.
22 See Section IV.A below.
23 See Section IV.B below.
24 See Section IV.B below.
12
III. THE COURT’S JURISDICTION
25. The Court has not yet decided the question of jurisdiction in this case.
Rather, in its 23 July 2018 Order, the Court determined only that it had prima
facie jurisdiction pursuant to Article 22 of the CERD.25
26. As the Court explained in its 23 July 2018 Order, a decision by the Court to
indicate provisional measures in a case:
[I]n no way prejudges the question of the jurisdiction
of the Court to deal with the merits of th[at] 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.26
27. In its submissions related to Qatar’s 11 June 2018 Request for the Indication
of Provisional Measures, the UAE expressed its objections to jurisdiction and
admissibility, inter alia, as follows:
[E]ven 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 dispute thus clearly falls outside
the scope ratione materiae of the Convention, such
that the Court is without jurisdiction.
[. . .]
[T]he crucial, initial, threshold question is whether the
Convention applies at all to the measures complained
of by Qatar. On Qatar’s own assertion, those
measures are either directed principally against Qatar
itself, or, to the extent that they are directed at, or
25 See 23 July 2018 Order, paragraph 41.
26 23 July 2018 Order, paragraph 78.
13
affect Qatari individuals, such impact is based purely
on the fact of their current Qatari nationality or
citizenship.27
28. The UAE respectfully maintains this position, as well as the entirety of its
arguments on jurisdiction. The UAE is making the present Request without
prejudice to its position on jurisdiction and it expressly reserves all of its
rights in this respect. Thus, neither the present Request nor the Court’s
decision on it shall affect the UAE’s right to submit arguments in respect of
the Court’s jurisdiction over this case and the admissibility of the
Application. The UAE expressly reserves its right to submit arguments in
respect of those questions at the appropriate stage of this proceeding.
29. Putting to one side the UAE’s ongoing objections to the jurisdiction of the
Court, the Court has made clear in this and other cases that, in order to
indicate provisional measures, it “need not satisfy itself in a definitive manner
that it has jurisdiction as regards the merits of the case”.28 Rather, the Court
has confirmed that it only needs to conclude that “the provisions relied on by
the Applicant appear, prima facie, to afford a basis on which its jurisdiction
could be founded”.29
30. It is not disputed that, in its 23 July 2018 Order, the Court found that it had
prima facie jurisdiction over the present case.30 Of course, there was nothing
in the language of the 23 July 2018 Order that could lead to a conclusion that
27 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Verbatim Record,
CR 2018/13, 28 June 2018 at 10 a.m., page 38, paragraphs 15 and 18.
28 23 July 2018 Order, paragraph 14. See also Jadhav Case (India v. Pakistan), Provisional
Measures, Order of 18 May 2017, I.C.J. Reports 2017, page 236, paragraph 15.
29 23 July 2018 Order, paragraph 14. See also Jadhav Case (India v. Pakistan), Provisional
Measures, Order of 18 May 2017, I.C.J. Reports 2017, page 236, paragraph 15.
30 See 23 July 2018 Order, paragraph 41.
14
its prima facie jurisdiction extended only to provisional measures requested
by Qatar. On the contrary, that prima facie jurisdiction also extends to this
Request. As demonstrated in the Sections below, this Request meets all the
other requirements for the Court to indicate provisional measures.
IV. THE REASONS UNDERLYING THIS REQUEST
31. As noted in Section II above, contrary to its obligations under international
law, Qatar has systematically supported and promoted terrorist and extremist
groups that target vulnerable communities and individuals. It also has
persistently used Al Jazeera and other State-controlled media outlets as a
propaganda tool and platform to legitimise these groups and to disseminate
false news. As a consequence, and after many attempts to persuade Qatar to
desist in its misconduct, on 5 June 2017, the UAE terminated diplomatic
relations with Qatar. The UAE subsequently took a series of lawful measures
against Qatar’s Government to induce Qatar to comply with its obligations
under international law.
32. Unfortunately, Qatar still has not ended its unlawful actions. Instead, it
initiated two parallel proceedings against the UAE based on the same
frivolous and meritless allegations of violations of the CERD. By initiating
these parallel proceedings, Qatar has abused its rights under the CERD.
These parallel proceedings also constitute a violation of the UAE’s rights
under the CERD as well as of its procedural rights in this case.
33. Further, Qatar has aggravated and extended the dispute and made it more
difficult to resolve by taking a series of actions that constitute a clear
violation of the Court’s 23 July 2018 Order.
15
Qatar has abused its rights un A. der the CERD by initiating two parallel
proceedings based on the same facts before both the CERD Committee
and this Court
34. Qatar has abused its rights under the CERD by initiating two parallel
proceedings, based on the same facts, before the CERD Committee and this
Court. Thus, on 8 March 2018, Qatar filed a Communication with the CERD
Committee under Article 11 of the CERD (the “Pending CERD
Communication”) claiming that the UAE had breached the CERD by
allegedly implementing a series of so-called “Coercive Measures” announced
on 5 June 2017. The Pending CERD Communication was transmitted to the
UAE through a note verbale by the Secretary-General of the United Nations
(High Commissioner for Human Rights) on 7 May 2018. That same note
verbale informed the UAE that the CERD Committee had given it until 7
August 2018 to file its observations to Qatar’s Pending CERD
Communication.31
35. On 11 June 2018, Qatar lodged an Application with the Court alleging
virtually identical facts and breaches.32 The filing of this case before the
31 See State of Qatar v. United Arab Emirates, Case No. ICERD-ISC-2018/2, Note Verbale
from the Secretary-General of the United Nations (High Commissioner for Human Rights) to
the Permanent Representative of the United Arab Emirates to the United Nations Office at
Geneva, 7 May 2018, transmitting Qatar’s Communication Submitted Pursuant to Article 11
of the International Convention on the Elimination of all Forms of Racial Discrimination, 8
March 2018, Annex 20.
32 The identical nature of the factual and legal claims put forward in this case and in the
Pending CERD Communication is stark and undeniable. The overall chronology and factual
matrix underlying the Pending CERD Communication are the same as those underlying the
current proceeding brought before the Court. Qatar also is instituting the parallel proceedings
on the basis of the alleged violation of virtually identical CERD provisions. See State of
Qatar v. United Arab Emirates, Case No. ICERD-ISC-2018/2, Note Verbale from the
Secretary-General of the United Nations (High Commissioner for Human Rights) to the
Permanent Representative of the United Arab Emirates to the United Nations Office at
Geneva, 7 May 2018, transmitting Qatar’s Communication Submitted Pursuant to Article 11
of the International Convention on the Elimination of all Forms of Racial Discrimination, 8
March 2018, paragraph 57, Annex 20 (“UAE has violated its obligations under (inter alia)
16
Court constituted an abandonment by Qatar of the Pending CERD
Communication. However, after the Court issued its 23 July 2018 Order and,
on 25 July 2018, fixed the time limits for the Parties’ written submissions on
the merits,33 Qatar re-instated the Pending CERD Communication by
“refer[ring] the matter again to the [CERD] Committee” on 29 October
2018.34
36. This attempt by Qatar to have two parallel proceedings under the CERD that
progress at the same time is inconsistent with Article 22 of the CERD.
Article 22 envisages that States Party to that Convention are entitled to resort
to this Court to settle disputes with respect to the interpretation or application
of the CERD. However, leaving aside the fact that Qatar’s claims do not
even relate to the interpretation or application of the CERD,35 Article 22 of
the CERD specifically restricts this recourse to be the final stage of a
carefully crafted linear and hierarchical dispute resolution process. Article 22
provides:
Any dispute between two or more States parties with
respect to the interpretation or application of this
CERD Articles 2, 4, 5, and 6, as well as the moral principles underlying the CERD and the
customary law principle of nondiscrimination on arbitrary grounds.”); Application, paragraph
58 (“The UAE has contravened its specific obligations under CERD Articles 2, 4, 5, 6, and 7,
as well as the customary international law principle of non-discrimination [. . .].”).
33 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Order of 25 July 2018.
34 State of Qatar v. United Arab Emirates, Case No. ICERD-ISC-2018/2, Note Verbale from
the Secretariat of the United Nations (Office of the High Commissioner for Human Rights) to
the Permanent Mission of the United Arab Emirates to the United Nations Office at Geneva,
31 October 2018, transmitting Note Verbale from the Permanent Mission of the State of
Qatar to the United Nations Office at Geneva to the Committee on the Elimination of Racial
Discrimination, 29 October 2018, page 2 of Qatar’s Note Verbale, Annex 21 (“[. . .] the
Permanent Mission of the State of Qatar hereby informs the Committee that the State of
Qatar elects to exercise its right under Article 11(2) to refer the matter again to the
Committee”).
35 See Section III above.
17
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. (Emphasis added.)
37. Article 22 does not make difficult reading; it requires no complex
interpretation. It is clear from the plain wording of this provision that the
CERD envisages that the treaty-specific dispute resolution mechanism it
offers to its States Party (i.e., “the procedures expressly provided for in this
Convention”) must be exhausted before a dispute is referred to this Court.
38. The Court itself has confirmed the linear nature of dispute resolution under
the CERD. In the case concerning the Application of the International
Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), the Court held that:
[I]n their ordinary meaning, the terms of Article 22 of
CERD, namely “[a]ny dispute … which is not settled
by negotiation or by the procedures expressly
provided for in this Convention”, establish
preconditions to be fulfilled before the seisin of the
Court.36
39. This holding by the Court confirms that Qatar is legally obliged to exhaust the
procedures expressly provided in the CERD “before the seisin of the Court”.
The ordinary meaning of the term “precondition” confirms that much.
40. However, in deliberate violation of the CERD’s clear dispute resolution
process, Qatar submitted its Application to this Court without exhausting the
procedure before the CERD Committee. Then, further exacerbating its abuse
36 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1
April 2011, I.C.J. Reports 2011, page 128, paragraph 141 (citing Article 22 of the CERD).
18
of the CERD dispute resolution process, after submitting its Application to
the Court, Qatar re-initiated the process before the CERD Committee.37
41. Qatar has thus created a lis pendens that constitutes an abuse of the CERD
dispute resolution mechanism. Through its conduct, Qatar has deliberately
manipulated and distorted that dispute resolution mechanism so as to force
the UAE to defend itself in two overlapping proceedings – between the same
Parties, commenced under the same instrument and involving the same
allegations of fact and law.
42. The rationale of the doctrine of lis pendens and of the actions that courts can
take to avoid such duplicative litigation is to avoid conflicting judgments, to
prevent expensive parallel litigation and to protect parties from abusive or
oppressive litigation tactics. In exercising their inherent power to safeguard
and manage the proceedings, courts have the power to enjoin a party from
pursuing the parallel proceedings. Thus, the exercise of the Court’s inherent
power to manage the present proceedings requires it to order Qatar not to
proceed with the parallel proceedings before the CERD Committee.
43. Qatar’s abuse of process threatens the breakdown of the legitimate
institutions established by the CERD and makes a mockery of the systemic
integrity of its dispute resolution mechanism. As further explained in Section
V.A below, Qatar’s abusive procedural conduct also threatens irreparable
harm to the UAE’s procedural rights in the present proceeding.
44. Even more worryingly, Qatar’s abusive pursuit of two parallel proceedings in
respect of the same dispute before two separate bodies undermines the
authority of the Court and the integrity of the Court’s procedures. It
37 See paragraph 35 above.
19
represents a tacit challenge by Qatar to the Court’s paramount but final role in
the dispute resolution steps provided in Article 22.
45. Furthermore, Qatar’s deliberate pursuit of parallel proceedings leads to the
inevitable risk that conflicting decisions, findings, rulings and orders will
result. Indeed, a number of the dissenting and separate opinions appended to
the 23 July 2018 Order already exposed a fundamental disagreement in legal
principle between a plurality of Judges and the CERD Committee in relation
to the fundamental question of whether the CERD covers differences of
treatment on the basis of nationality. For example, Judges Tomka, Gaja and
Gevorgian noted that:
It would be difficult to give weight to this view of the
CERD Committee since it gives no reason for its
interpretation that different treatment based on
nationality constitutes racial discrimination under
CERD, albeit only to a certain extent.38
46. Similarly, highlighting one of the legal difficulties of Qatar’s case, Judge
Crawford clearly explained that:
[. . .] Article 1 of the International Convention on the
Elimination of All Forms of Racial Discrimination
(CERD) distinguishes on its face between
discrimination on grounds of national origin (equated
to racial discrimination and prohibited per se) and
differentiation on grounds of nationality (not
prohibited as such). [. . .] Prima facie at least, the
UAE measures at issue here, deriving from the
Statement of 5 June 2017, target Qataris on account of
their present nationality, not their national origin.
This does not mean that collective expulsion of
persons of a certain nationality is lawful under
international law; it is not. It is simply that it is not
38 23 July 2018 Order, Joint Declaration of Judges Tomka, Gaja and Gevorgian, paragraph 5.
20
apparently covered by the CERD, the only basis for
jurisdiction relied on by Qatar.39
47. Equally, Judge Salam categorically stated:
I am convinced that the Court does not have prima
facie jurisdiction ratione materiae, in so far as the
dispute between the Parties does not appear to
concern the interpretation or application of CERD. It
is clear from Article 1 of CERD that this Convention
applies to “any distinction, exclusion, restriction or
preference based on race, colour, descent, or national
or ethnic origin”. There is, however, no mention of
discrimination on the basis of “nationality”, the object
of the Applicant’s complaints.40
48. The risk of conflicting legal outcomes and directions in parallel proceedings
that address the same substantive issues will inevitably result in procedural
irregularities and legal conflict, as well as in prolongation and aggravation of
the dispute that cannot be undone. It also poses systemic challenges for the
working relationships of the relevant international courts and tribunals. As a
precedent, Qatar’s actions present institutional challenges for the Court itself.
These challenges cannot be overstated. The reaching of contradictory legal
outcomes could set a precedent that undermines the authority of the Court, the
proper functioning of dispute resolution procedures agreed in treaties like the
CERD and even the unity of international law itself.
39 23 July 2018 Order, Dissenting Opinion of Judge Crawford, paragraph 1.
40 23 July 2018 Order, Dissenting Opinion of Judge Salam, paragraph 2 (citing Article 1 of the
CERD).
21
Qatar B. has failed to comply with the Court’s 23 July 2018 Order by
hampering the UAE’s attempts to assist Qatari citizens, including by
blocking access by Qatari citizens to the website by which Qatari citizens
can apply for a permit to return to the UAE, and by using its national
institutions and State-controlled media to inflame the dispute
49. In paragraph 79(2) of its 23 July 2018 Order, the Court ordered that “[b]oth
Parties shall refrain from any action which might aggravate or extend the
dispute before the Court or make it more difficult to resolve” (the “Non-
Aggravation Order”). Despite the fact that the Non-Aggravation Order
expressly referred to both Parties, Qatar has manifestly failed to comply with
its obligations under that Order. Qatar has continued to aggravate and extend
the dispute that it has brought to the Court.
50. As explained above, after the Court issued the 23 July 2018 Order, Qatar
re-instated the Pending CERD Communication by referring the matter again
to the CERD Committee.41 By doing so, Qatar has created a significant risk
that the CERD Committee proceeding and the case before this Court, which
are now proceeding in parallel, reach contradictory legal outcomes.42 If that
risk materialises, the final decision of the Court in this case would not put an
end to the Parties’ dispute. Indeed, in the words of the Arbitral Tribunal in
the MOX Plant Case (Ireland v. United Kingdom), “a procedure that might
result in two conflicting decisions on the same issue would not be helpful to
41 See State of Qatar v. United Arab Emirates, Case No. ICERD-ISC-2018/2, Note Verbale
from the Secretariat of the United Nations (Office of the High Commissioner for Human
Rights) to the Permanent Mission of the United Arab Emirates to the United Nations Office
at Geneva, 31 October 2018, transmitting Note Verbale from the Permanent Mission of the
State of Qatar to the United Nations Office at Geneva to the Committee on the Elimination of
Racial Discrimination, 29 October 2018, Annex 21.
42 See paragraphs 45–48 above.
22
the resolution of the dispute between the Parties”.43 Therefore, by re-instating
the Pending CERD Communication, Qatar has further aggravated and
extended the dispute and made it more difficult to resolve.
51. In addition, Qatar is hampering the UAE’s attempts to assist Qatari citizens.
For example, early this year, Qatar blocked within its territory access by
people living in Qatar to the website by which Qatari citizens can apply for a
permit to return to the UAE.44 In other words, Qatar is creating false
evidence as it seeks to establish false facts. Qatar is – perversely – actually
sabotaging the UAE’s efforts to assist Qatari nationals, including Qatari
students, mixed family members and other vulnerable individuals. It is
intentionally undermining the UAE’s efforts to provide Qatari nationals with
a procedure to access the UAE and, for example, exercise their rights before
the UAE’s courts. There could not be a clearer example of aggravation of the
dispute between the Parties. And Qatar has been caught red-handed
fabricating evidence, once again.
52. Further, the Non-Aggravation Order self-evidently required Qatar to cease
broadcasting hate speech and false statements concerning the UAE,
particularly in relation to the issues in dispute in this proceeding. Yet, Qatar
has continued using its national institutions and State-owned, controlled and
funded media outlets, including Al Jazeera, to describe the UAE’s lawful
measures as a “siege”.45 Qatar also has continued disseminating false
43 The MOX Plant Case (Ireland v. United Kingdom), Order No. 3, Suspension of Proceedings
on Jurisdiction and Merits, and Request for Further Provisional Measures, 24 June 2003,
paragraph 28.
44 See Video recordings taken in Doha of blocked Federal Authority for Identity and
Citizenship website, Annex 22 (A to C).
45 “Al Marri calls for extensive probe against siege nations”, The Peninsula, 16 September
2018, Annex 23; “Marri urges international community to pressure siege countries to stop
23
statements. For example, it has continued disseminating the incorrect
assertions that the UAE is “obstructing and preventing Qataris from resorting
to the courts” of the UAE and violating the rights of Qatari students by
preventing them to return to the UAE.46 Equally, Qatar has continued using
its national bodies to spread fallacies, including among United Nations
bodies, that the UAE’s measures constitute “gross and systematic violations
and discriminatory measures against Qatari citizens and expatriates”.47
53. The UAE has demonstrated to this Court, both at the public hearings on 27–
29 June 2018 and with evidence supplied with this Request, that thousands of
Qatari citizens have successfully used the hotline and the website available to
assist them.48 Despite these proven truths, Qatar continues even now to
disseminate false accusations regarding the UAE’s compliance with the 23
July 2018 Order. For example, Qatar has used its National Human Rights
Committee to claim that the UAE has committed more than 700 violations of
that Order.49 These false and unfounded accusations have been repeated in
Qatari-controlled media outlets. Indeed, those outlets have recycled false
allegations that “[h]uman rights violations continue due to measures taken by
the UAE” and that the UAE continues to violate “the rights of women,
children, persons with disabilities and the elderly” and to deny Qatari citizens
human rights violations”, Qatar Tribune, 30 September 2018, Annex 24; “UN probes siege
violations of Qatari students’ rights”, The Peninsula, 20 January 2019, Annex 25.
46 “Al Marri calls for extensive probe against siege nations”, The Peninsula, 16 September
2018, Annex 23; “Report on UAE violations next month, says al-Marri”, Gulf Times,
6 December 2018, Annex 26; “UN probes siege violations of Qatari students’ rights”, The
Peninsula, 20 January 2019, Annex 25.
47 See, e.g., “Al Marri calls for extensive probe against siege nations”, The Peninsula,
16 September 2018, Annex 23.
48 See Section II above.
49 See “‘745’ Emirati violations of ICJ decisions”, Al-Watan, 24 January 2019, Annex 27;
“NHRC unveils report detailing continued rights violation by UAE despite ICJ decision”,
The Peninsula, 24 January 2019, Annex 28.
24
“access to justice and the exercise of their right of access to courts and
tribunals”.50 The evidence clearly contradicts Qatar’s false contentions that
“only a very small number of cases have been resolved”,51 that there is no
mechanism for the implementation of the 23 July 2018 Order in the UAE and
that the UAE has failed to take any measures for this purpose.52
54. Qatar’s inflammatory conduct and attacks against the UAE via its national
bodies and its State-controlled media outlets directly violate the
Non-Aggravation Order.
THIS REQUEST SEEKS V. TO PRESERVE THE UAE’S PROCEDURAL
RIGHTS AND TO PREVENT QATAR FROM FURTHER
AGGRAVATING OR EXTENDING THE DISPUTE
55. Article 41(1) of the Statute provides that the Court has “the power to indicate,
if it considers that circumstances so require, any provisional measures which
ought to be taken to preserve the respective rights of either party”.
56. In addition, the Court has made clear that:
When [. . .] indicating provisional measures for the
purpose of preserving specific rights, the Court may
also indicate provisional measures with a view to
50 “‘UAE continues to violate ICJ decision’”, Qatar Tribune, 24 January 2019, Annex 19. See
also “Despite the ICJ Order … Qatari accounts document Emirati violations”, Al Jazeera, 24
January 2019, Annex 29.
51 “‘UAE continues to violate ICJ decision’”, Qatar Tribune, 24 January 2019, Annex 19
(quote translated from Arabic original).
52 See “‘745’ Emirati violations of ICJ decisions”, Al-Watan, 24 January 2019, Annex 27;
“‘UAE continues to violate ICJ decision’”, Qatar Tribune, 24 January 2019, Annex 19. See
paragraphs 11–15 above (referring to the availability of a hotline and a website to Qatari
nationals, to evidence proving the frequent use of these mechanisms by Qataris to apply to
obtain permission to travel to the UAE and to the high ratio of approval of such applications
by the UAE).
25
preventing the aggravation or extension of a dispute
whenever it considers that the circumstances so
require [. . .].53
57. Accordingly, this Request seeks to: (i) protect the UAE’s procedural rights in
this case; and (ii) prevent Qatar from further aggravating and extending the
dispute between the Parties.
The Court should grant A. this Request on an urgent basis to protect the
UAE’s procedural rights in this case
58. Like all parties that come before this Court, the UAE enjoys fundamental
procedural rights in this proceeding. Among other rights, the UAE is entitled
to procedural fairness, to an equal opportunity to present its case and to
proper administration of justice. Indeed, the Court’s jurisprudence makes
clear that:
[T]he equality of the parties to the dispute must
remain the basic principle for the Court. [. . .] The
provisions of the Statute and Rules of Court [. . .] are
designed to secure a proper administration of justice,
and a fair and equal opportunity for each party to
comment on its opponent’s contentions.54
59. Likewise, the Court has made clear that the “equality of the parties must be
preserved when they are involved, pursuant to Article 2, paragraph 3, of the
Charter, in the process of settling an international dispute by peaceful
53 23 July 2018 Order, paragraph 76. See also 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, page 139, paragraph 103.
54 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment of 27 June 1986, I.C.J. Reports 1986, page 26, paragraph 31.
26
means”.55 The Court has further confirmed that “[t]he principle of equality of
the parties follows from the requirements of good administration of justice”.56
In other words, the proper administration of international justice entails
necessarily that Qatar and the UAE must be given equal opportunities to be
heard and to obtain justice.57
60. As explained in Section IV.A above, through its actions, Qatar has created a
lis pendens situation, where two parallel proceedings bearing on the exact
same dispute and amongst the same parties are progressing simultaneously.
In doing so, Qatar has acted against basic notions of procedural fairness that
require a party to avoid duplicative and potentially conflictual litigation.
Unless the UAE’s procedural rights are preserved on an urgent basis, there
can be no possibility of a fair and just outcome in the present proceeding.
There can be no equality of the Parties when Qatar has unilaterally taken for
itself two opportunities to litigate against the UAE in simultaneous and
overlapping proceedings.
61. Qatar’s pursuit of simultaneous claims both before this Court and under
Article 11 of the CERD is entirely inconsistent with the hierarchical and
linear dispute resolution procedure set out clearly in Article 22 of the CERD.
By pursuing in parallel the very same CERD complaint against the UAE
before two mutually exclusive fora, Qatar abuses the CERD dispute
55 Questions relating to the Seizure and Detention of Certain Documents and Data
(Timor-Leste v. Australia), Provisional Measures, Order of 3 March 2014, I.C.J. Reports
2014, page 153, paragraph 27.
56 Judgments of the Administrative Tribunal of the ILO upon complaints made against
UNESCO, Advisory Opinion of 23 October 1956, I.C.J. Reports 1956, page 86.
57 See R. Kolb, The International Court of Justice (Hart Publishing 2013), page 1119. See also
S. Rosenne, The Law and Practice of the International Court, 1920-2005: Volume III
(Martinus Nijhoff 4ed. 2006), pages 1048–1049; B. Cheng, General Principles of Law as
Applied by International Courts and Tribunals (Cambridge University Press 2006), pages
290–291 and 293.
27
resolution mechanism and its rights under the CERD. If Qatar is not enjoined
from proceeding with the Pending CERD Communication, there will no
longer be a linear and incremental dispute resolution procedure, as set out in
the CERD.
62. Critically, as previously explained,58 if these proceedings are allowed to
continue in parallel, both the UAE and Qatar would be exposed to a scenario
where the proceedings may lead to divergent or contradictory outcomes, in
respect of both legal findings and findings of fact. Such an approach would
create procedural and legal irregularities. It would pose serious systemic
challenges for the working relationships of the relevant international courts
and tribunals.
63. Even if Article 22 of the CERD were not drafted as it is, the general
principles of international law concerning procedural fairness and equality
between parties dictate that multiple proceedings based upon the same facts,
under the same instrument and between the same parties must not proceed in
parallel. Indeed, the dangers of parallel proceedings are well documented.
As one commentator rightly explained:
Such duplicative practices draw heavily on scarce
judicial resources, carry the risk of legal havoc, which
might be caused by inconsistent decisions, and place
an undue burden on some or all of the parties due to
increased litigation expenses and reduced legal
certainty.
[. . .]
The co-existence of two or more simultaneous
proceedings before different fora places an unusually
heavy burden on the parties to litigation, which are
required to maintain two legal teams or shuttle
58 See Section IV.A above.
28
between two or more tribunals. It also entails the
investment of unnecessarily duplicative judicial time
and resources by courts and tribunals that are faced
with similar (if not identical) tasks and yet are unable
to rely on the work of each other.59
64. As the defending Party, the burden of duplicative litigation in this case falls
disproportionately on the UAE. The parallel proceedings that Qatar is
actively pursuing are advancing simultaneously. The UAE has already been
required to file multiple submissions in the parallel CERD Committee
proceeding.60 And that proceeding continues and is anticipated to keep
overlapping with the procedural schedule of the present case.
65. Further, to the extent that procedural steps in the CERD Committee
proceeding precede those in the present case, the UAE will be forced to
choose between forsaking its rights to mount a full defence in the CERD
Committee proceeding or sacrificing its right to procedural equality in the
present case. Qatar’s abusive procedural misconduct must urgently be
brought to an end.
66. The Court has an inherent power and duty to safeguard the integrity of the
proceedings before it.61 The UAE requests that, in exercise of that power and
in light of the facts set out above, the Court enjoin Qatar from further
pursuing the Pending CERD Communication. This is a necessary
59 Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford
University Press 2003), pages 155–156.
60 See State of Qatar v. United Arab Emirates, Case No. ICERD-ISC-2018/2, Note Verbale
from the Secretariat of the United Nations (Office of the High Commissioner for Human
Rights) to the Permanent Mission of the United Arab Emirates to the United Nations Office
at Geneva, 14 December 2018, page 1, Annex 30 (“Noting that the United Arab Emirates
replied to [the Pending CERD Communication] by Notes verbales of 7 August, 7 and 30
November 2018 [. . .]”) (Emphasis in original.).
61 Nuclear Tests (Australia v. France), Merits, Judgment of 20 December 1974, I.C.J. Reports
1974, pages 259–260, paragraph 23.
29
consequence of Qatar’s decision to invoke formal adjudication by the Court
under Article 22 of the CERD. Any different approach would render
meaningless the principles of procedural fairness and of the equality of the
parties. It would require the UAE to defend itself against the same
allegations in two simultaneous and overlapping procedures. It would create
a significant risk of inconsistent findings of fact and law. It would create
procedural and legal chaos. It would set a precedent that undermines the
authority of the Court, the proper functioning of dispute resolution procedures
agreed in treaties like the CERD and even the unity of international law.
The Court should grant B. this Request on an urgent basis to prevent Qatar
from further aggravating or extending the dispute
67. In its 23 July 2018 Order, the Court ordered that “[b]oth Parties shall refrain
from any action which might aggravate or extend the dispute before the Court
or make it more difficult to resolve.”62 As set out in Section IV.B above,
Qatar has ignored this Non-Aggravation Order. In fact, Qatar has aggravated
and extended the dispute and made it more difficult to resolve by, inter alia:
(i) re-instating its Pending CERD Communication by referring the matter
again to the CERD Committee on 29 October 2018 after it had
abandoned it;63
(ii) hampering the attempts of the UAE to assist Qatari citizens, including
by blocking within its territory access to the UAE Government website
62 23 July 2018 Order, paragraph 79(2).
63 See Section IV.A above.
30
by which Qatari citizens can apply for a permit to return to the UAE;64
and
(iii) using its national institutions and State-owned, controlled and funded
media outlets, including Al Jazeera, to disseminate false accusations
regarding the UAE.65
68. The Court should therefore grant this Request on an urgent basis to prevent
Qatar from further aggravating or extending the dispute.
IF THIS REQUEST VI. IS NOT GRANTED URGENTLY, THE UAE
WILL SUFFER IRREPARABLE HARM
69. The provisional measures set out in Section VII below are urgently required
to prevent irreparable damage to the UAE’s procedural rights as well as
further aggravation and extension of the dispute by Qatar.
70. There is a real and imminent risk that irreparable prejudice will be caused to
the UAE’s procedural rights before any final judgment can be rendered by the
Court in this proceeding. The CERD Committee is now seized of the very
question in dispute in the present proceeding before this Court. Indeed, the
CERD Committee recently requested that the UAE make any further
submission on issues of jurisdiction or admissibility, including the exhaustion
of all available domestic remedies, by 14 January 2019.66 This submission
64 See Section IV.B above.
65 See Section IV.B above.
66 See State of Qatar v. United Arab Emirates, Case No. ICERD-ISC-2018/2, Note Verbale
from the Secretariat of the United Nations (Office of the High Commissioner for Human
Rights) to the Permanent Mission of the United Arab Emirates to the United Nations Office
at Geneva, 14 December 2018, Annex 30.
31
was duly made.67 The Committee further indicated that any preliminary
question will be examined at the CERD Committee’s 98th Session that will
take place from 23 April to 10 May 2019.68 This Court will not have issued a
final decision by that date. As already explained, there is a clear risk that this
Court and the CERD Committee will reach contradictory decisions on issues
of fact, jurisdiction and merits.69 The irreparably harmful consequences of
this to the UAE’s rights and to the resolution of the dispute that Qatar has
brought to the Court have been discussed above.70
71. In the case on Questions relating to the Seizure and Detention of Certain
Documents and Data (Timor-Leste v. Australia), the Court found that
provisional measures can and should be granted where the right of a State to
conduct arbitral proceedings and negotiations without interference faces
imminent risk of irreparable harm through the conduct of an opposing State
party.71 In that same case, the Court also made clear that provisional
measures can and should be granted when a State’s breach of its procedural
67 State of Qatar v. United Arab Emirates, Case No. ICERD-ISC-2018/2, Note Verbale from
the Permanent Mission of the United Arab Emirates to the United Nations Office and Other
International Organizations at Geneva to the Secretariat of the Office of the High
Commissioner for Human Rights, 14 January 2019, transmitting the Supplemental Response
on Issues of Jurisdiction and Admissibility of the United Arab Emirates, 14 January 2019,
Annex 31.
68 See State of Qatar v. United Arab Emirates, Case No. ICERD-ISC-2018/2, Note Verbale
from the Secretariat of the United Nations (Office of the High Commissioner for Human
Rights) to the Permanent Mission of the United Arab Emirates to the United Nations Office
at Geneva, 14 December 2018, Annex 30.
69 See Section IV.A above.
70 See Section V above.
71 See Questions relating to the Seizure and Detention of Certain Documents and Data
(Timor-Leste v. Australia), Provisional Measures, Order of 3 March 2014, I.C.J. Reports
2014, page 147, paragraphs 42–48.
32
rights “may not be capable of remedy or reparation as it might not be possible
to revert to the status quo ante” prevailing before that breach.72
72. Both principles apply with equal force in the present case. The Court should
grant the Request to prevent Qatar’s conduct from interfering in the UAE’s
right to defend itself directly in this proceeding. Further, the Court should
grant the Request because the consequences of Qatar’s abuse of the CERD
dispute resolution mechanism may not be capable of remedy or reparation as
it might not be possible to revert to the status quo ante prevailing before that
abuse. Indeed, as explained in Section V.A, if Qatar is not enjoined from
proceeding with the Pending CERD Communication, the UAE will be forced
to choose between forsaking its rights to mount a full defence in the CERD
Committee proceeding or sacrificing its right to procedural equality in the
present case. The UAE also will have to defend itself against the same
allegations in two simultaneous and overlapping procedures. And Qatar will
succeed in unilaterally granting itself two parallel and simultaneous
opportunities to litigate against the UAE in breach of the CERD dispute
resolution proceeding. Further, there will be a significant risk of inconsistent
findings of fact and law. All of which is precisely the kind of prejudice that
cannot be undone and that must be prevented through the indication of
provisional measures.
73. In addition, if this Request is not granted urgently, Qatar will continue
aggravating and extending the dispute, making it impossible to resolve. It is
perversely harming its own citizens and hampering the UAE’s attempts to
assist them, including by preventing them from accessing the website by
72 Questions relating to the Seizure and Detention of Certain Documents and Data
(Timor-Leste v. Australia), Provisional Measures, Order of 3 March 2014, I.C.J. Reports
2014, page 147, paragraph 42.
33
which Qatari citizens can apply for a permit to return to the UAE. Through
its national bodies and State-controlled media outlets, Qatar will continue to
disseminate false and inflammatory statements about the UAE and the present
dispute, maliciously damaging the UAE’s reputation and adversely affecting
in a significant way the prospects of the resolution of the dispute. If Qatar is
not ordered to cease aggravating and extending the dispute, there could be
severe and irreparable consequences in the immediate future for vulnerable
individuals living in the region.
THE VII. SPECIFIC MEASURES REQUESTED
74. As has been set out above, Qatar’s conduct, including its conduct since 23
July 2018, has aggravated and continues to aggravate and extend the dispute
before the Court, making it more difficult to resolve. That conduct also poses
an imminent risk of further irreparable prejudice to the UAE’s rights. For
these reasons, the UAE respectfully requests that the Court order that:
(i) Qatar immediately withdraw its Communication submitted to the
CERD Committee pursuant to Article 11 of the CERD on 8 March
2018 against the UAE and take all necessary measures to terminate
consideration thereof by the CERD Committee;
(ii) Qatar immediately desist from hampering the UAE’s attempts to assist
Qatari citizens, including by un-blocking in its territory access to the
website by which Qatari citizens can apply for a permit to return to the
UAE;
(iii) Qatar immediately stop its national bodies and its State-owned,
controlled and funded media outlets from aggravating and extending the
dispute and making it more difficult to resolve by disseminating false
accusations regarding the UAE and the issues in dispute before the
Court; and
(iv) Qatar refrain from any action which might aggravate or extend the
dispute before the Court or make it more difficult to resolve.
75. The UAE reserves its right to amend this Request.
76. The UAE respectfully urges the Court to treat this Request as a matter of
extreme urgency and set a hearing at the earliest possible date.
77. The UAE further requests that, pending the meeting of the Court, the
President of the Court exercise his powers under Article 7 4( 4) of the Rules
and call upon Qatar to act in such a way as will enable any order the Court
may make on the Request to have its appropriate effects.
Respectfully submitted,
HE Dr Hissa Abdullah Ahmed Al-Otaiba
Ambassador of the United Arab Emirates to The Kingdom of the Netherlands
Agent of the United Arab Emirates
Done at The Hague on 22 March 2019
34
1
INTERNATIONAL COURT OF JUSTICE
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 TO
PRESERVE THE UNITED ARAB EMIRATES’ PROCEDURAL RIGHTS
AND TO PREVENT QATAR FROM AGGRAVATING OR EXTENDING
THE DISPUTE
SUBMITTED BY THE UNITED ARAB EMIRATES
22 March 2019
LIST OF ANNEXES
Annex
number
Description of the Annex
Annex 1 A ppeal Relating to the Jurisdiction of the ICAO Council under
Article 84 of the Convention on International Civil Aviation
(Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar),
Memorial of the Kingdom of Bahrain, the Arab Republic of Egypt,
the Kingdom of Saudi Arabia and the United Arab Emirates,
2
Volume I of VII, 27 December 2018, Chapters I and II
Annex 2 F irst Riyadh Agreement, 23 and 24 November 2013, United Nations
Registration Number 55378 (English translation of Arabic original)
Annex 3 M echanism Implementing the Riyadh Agreement, 17 April 2014,
United Nations Registration Number 55378 (English translation of
Arabic original)
Annex 4 S upplementary Riyadh Agreement, 16 November 2014, United
Nations Registration Number 55378 (English translation of Arabic
original)
Annex 5 L etter from HE Mohammed Bin Abdulrahman Al-Thani (Minister
of Foreign Affairs of Qatar) to HE Dr Abdullatif Bin Rashid Al
Zayani (Secretary-General of the GCC), 19 February 2017 (English
translation of pages 2–3 of Arabic original)
Annex 6 “ Egypt cut ties with Qatar for ‘supporting terrorist organizations’”,
State Information Service, 8 June 2017
Annex 7 “ Kingdom of Saudi Arabia severs diplomatic and consular relations
with Qatar 3 Jeddah”, Saudi Press Agency, 5 June 2017
Annex 8 “ Statement of the Kingdom of Bahrain on the severance of
diplomatic relations with the State of Qatar”, Ministry of Foreign
Affairs of the Kingdom of Bahrain, 5 June 2017
Annex 9 “ Chad shuts down Qatar embassy”, Emirates News Agency, 23
August 2017
Annex 10 “ Comoros severs diplomatic relations with Qatar”, Saudi Press
3
Agency, 7 June 2017
Annex 11 “ Statement by the Government of Maldives”, Ministry of Foreign
Affairs of the Republic of Maldives, 5 June 2017
Annex 12 “ La Mauritanie décide de rompre ses relations diplomatiques avec
Qatar”, Agence Mauritanienne d’Information, 6 June 2017
Annex 13 “ Senegal, Gabon join boycott of Qatar”, Middle East Monitor, 9
June 2017
Annex 14 “ Yemen cuts diplomatic ties with Qatar: state news agency”,
Reuters, 5 June 2017
Annex 15 “ Jordan downgrades relations with Qatar and bans Al Jazeera”, The
National, 7 June 2017
Annex 16 “ Niger recalls ambassador to Qatar”, Khaleej Times, 10 June 2017
Annex 17  A: Letter from the United Arab Emirates Federal Authority for
Identity and Citizenship to the Ministry of Foreign Affairs and
International Cooperation of the United Arab Emirates, 10
January 2019 (English translation of Arabic original)
 B: Entry and exit movements of Qatari nationals to the United
Arab Emirates, 1 June 2018 to 31 December 2018 (English
translation of relevant parts of Arabic original)
 C: Requests for entry and exit to the United Arab Emirates by
Qatari nationals, 9 July 2018 to 22 December 2018 (English
translation of relevant parts of Arabic original)
 D: Qatari nationals residing in the United Arab Emirates and
holding a UAE identification document (English translation of
4
relevant parts of Arabic original)
Annex 18 “ Qatar: Hotline for mixed-families a face-saving act”, Al Jazeera,
11 June 2017
Annex 19 “ ‘UAE continues to violate ICJ decision’”, Qatar Tribune, 24
January 2019
Annex 20 S tate of Qatar v. United Arab Emirates, Case No.
ICERD-ISC-2018/2, Note Verbale from the Secretary-General of
the United Nations (High Commissioner for Human Rights) to the
Permanent Representative of the United Arab Emirates to the
United Nations Office at Geneva, 7 May 2018, transmitting Qatar’s
Communication Submitted Pursuant to Article 11 of the
International Convention on the Elimination of all Forms of Racial
Discrimination, 8 March 2018
Annex 21 S tate of Qatar v. United Arab Emirates, Case No.
ICERD-ISC-2018/2, Note Verbale from the Secretariat of the
United Nations (Office of the High Commissioner for Human
Rights) to the Permanent Mission of the United Arab Emirates to
the United Nations Office at Geneva, 31 October 2018, transmitting
Note Verbale from the Permanent Mission of the State of Qatar to
the United Nations Office at Geneva to the Committee on the
Elimination of Racial Discrimination, 29 October 2018
5
Annex 22 V ideo recordings taken in Doha of blocked Federal Authority for
Identity and Citizenship website (provided in soft copy only)
 A: Video recording, 1 February 2019, shot at 2:48am
 B: Video recording, 1 February 2019, shot at 3:04am
 C: Video recording, 1 February 2019, shot at 4:10am
Annex 23 “ Al Marri calls for extensive probe against siege nations”, The
Peninsula, 16 September 2018
Annex 24 “ Marri urges international community to pressure siege countries to
stop human rights violations”, Qatar Tribune, 30 September 2018
Annex 25 “ UN probes siege violations of Qatari students’ rights”, The
Peninsula, 20 January 2019
Annex 26 “ Report on UAE violations next month, says al-Marri”, Gulf Times,
6 December 2018
Annex 27 “ ‘745’ Emirati violations of ICJ decisions”, Al-Watan, 24 January
2019 (English translation of Arabic original)
Annex 28 “ NHRC unveils report detailing continued rights violation by UAE
despite ICJ decision”, The Peninsula, 24 January 2019
Annex 29 “ Despite the ICJ Order … Qatari accounts document Emirati
violations”, Al Jazeera, 24 January 2019 (English translation of
Arabic original)
Annex 30 S tate of Qatar v. United Arab Emirates, Case No.
ICERD-ISC-2018/2, Note Verbale from the Secretariat of the
United Nations (Office of the High Commissioner for Human
Rights) to the Permanent Mission of the United Arab Emirates to
the United Nations Office at Geneva, 14 December 2018
Annex 31 State of Qatar v. United Arab Emirates, Case No. ICERDISC-
2018/2, Note Verbale from the Permanent Mission of the
United Arab Emirates to the United Nations Office and Other
International Organizations in Geneva to the Secretariat of the
Office of the High Commissioner for Human Rights, 14 January
2019, transmitting the Supplemental Response on Issues of
Jurisdiction and Admissibility of the United Arab Emirates, 14
January 2019
Pursuant to Article 50(1) of the Rules of Court, I certify that the above-listed
Annexes are true copies of the originals. Pursuant to Article 51(3) of the Rules of
Court, I also certify that the English-language translations of the Arabic-language
documents contained in Annexes 2, 3, 4, 5, 17, 27 and 29 are accurate.
Respectfully submitted,
HE Dr Hissa Abdullah Ahmed Al-Otaiba
Ambassador of the United Arab Emirates to The Kingdom of the Netherlands
Agent of the United Arab Emirates
Done at The Hague on 22 March 2019
6