Written replies of the United Arab Emirates to the questions put by Judges Cançado Trindade, Bhandari and Crawford at the end of the public sitting held on 29 June 2018

Rcsponse of the United An1h l~minites (the "LIAE") to the questions of .ludge Cançado
Trindadc:
1. Does the local remedies mie have the same r;1tionale in diplomat'ic protection and in
international human rights protection'? Does the effectiveness of local remedies have
an incidence under the International Convention on the Elimination of Ali Forms of
Racial Discrimination and other human rights treaties?
Recent devclopments in international law have broadencd the scopc or application or
diplomatie protection to inclue.le violations or rules for the protection or human rights.
The scopc or application or the customary rulc as to exhaustion or local remedies has
conscqucntly been broadened.
ln the Court's judgmcnt or 24 May 2007 on Prcliminary objections in Ahmadou S'aido
Diallo, the Court stated:
Owing to the substantive development or international law ovcr recent decades in
respect of the rights it accords to individuals, the scope ratione materiae of
diplomatie protection, originally limitcd to alleged violations of the minimum
standard of treatment of aliens, has subsequently widened to include, inter alia,
internationally guaranteed human rights. 1
The Com1 thus examined whether Mr. Diallo, claiming violation of his rights "as a result
of his arrest, detention and expulsion" met the requirements for the exercise of diplomatie
protection, and in particular "whether he ha[ d] exhausted the local remedies available. "2
Even within its broadened scope, the rationale of the rule, as summarized by the Court in
lnterhandel, remains to ensure that "the State where the violation occurred should have
an opportunity to redress it by its own means, within the framework of its own domestic
system."3
The same rationale underlies the exhaustion of local remedies rule m the context of
international human rights law.4
1 Ahmadou Sadio Dial/o (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections,
Judgment, /.C.J. Reports 2007, p. 599, para. 39.
2 Id., para. 40.
3 lnterhandel Case, Judgment of March 2t'1
, 1959, lC.J. Reports /959, p. 6, p. 27.
4 See e.g., Application No. 30210/96, Kudla v Po/and,judgment of26 October 2000, ECHR Reports 2000, para. 152
("The purpose of ... the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity
of . . . putting right the violations alleged against them before those allegations are submitted to the Court");
Velasquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Inter-Am. Ct.H.R., Series C, No. 4, para. 61
("The rule of prior exhaustion of domestic remedies allows the State to resolve the problem under its internai law
before being confronted with an international proceeding. This is particularly true in the international jurisdiction of
human rights, because the latter reinforces or complements the domestic jurisdiction."). See also, Viviana Ga/larda
et al. v. Costa Rica, Decision of 13 November 1981, Inter-Am. Ct. H.R., Series A. No. 101 para. 26.
Article 11(3) ol' the International Convention on the Elimination or Ali Forms or Racial
Discrimination (the ""Convention'") providcs lor the applicabilily of the exhaustion or
local rcmcdics rulc lo lhc Slale-lo-Slale procedure beforc the Commiltee on lhc
Elimination or Racial Discrimination, spccilying that remedics must be cxhaustcd "in
conformily with the gencrally recognizcd principles or international law."
While in the contcxt or Articles 11 and 22 or the Convention, the rulc applics in the
framework of diplomatie protection, in which context il funclions as a condition or
admissibility for an international action brought hy a Statc, in the optional proccdurc for
individual communications undcr A11iclc 14 or Convention5 and in thosc human rights
lrcatics which providc for an individual right of rccoursc to an international judgc (as is
the case oC for example, the European Convention on Human Rightl'), exhaustion or
domcstic remcdies constitutes a condition for the admissibility or an action by an
individual. The rationale remains nonetheless the same.
Under the Convention, as is the case under other treaties and under general international
law, the cffectiveness of the available local remedies is a componcnt of the rule requiring
exhaustion of local remedies. 7 In particular, in addition to the reference in Article 11 (3)
of the Convention to the "generally recognized principles of international law", the
requirement in the same provision that the remedies not be "unreasonably prolonged"
refers to an aspect of the effectiveness of the local remedies requiring exhaustion.8
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 Ali Forms of Racial Discrimination?
The question posed has to be approached first, in the light of the supposed nature of the
continuing violations and, second, as a matter of procedure, in the light of the
jurisdictional requirements concemed. The latter point will be dealt with in the answer to
question 3.
5 Article 14(7) of the Convention: "The Committee shall consider communications in the light of ail information
made available to it by the State Party concerned and by the petitioner. The Committee shall not consider any
communication from a petitioner unless it has ascertained that the petitioner has exhausted ail available domestic
remedies. However, this shall not be the rule where the application of the remedies is unreasonably prolonged"
( emphasis added).
"Convention for the Protection of Human Rights and Fundamental Freedoms (1950), as amended by Protocols Nos.
3, 5, 8 and 11, Article 35 ("Admissibility Criteria").
7 Cf. Article 15(b), International Law Commission, Draft Articles on Diplomatie Protection, Official Records of the
Genera/ Assemb/y, Sixty-first Session, Supplement No. I O ( doc. A/61 / I 0) (2006).
8 See also GA Third Committee, A/C.3/SR.1353, para. 42 (Netherlands) (explaining that "the words 'in conformity
with the generally recognized principles of international law' in paragraph 3 [of Article 22] were meant to refer to
the two exceptions to the rule that available remedies must be exhausted before a case was taken to the international
level. The exceptions in question were cases where numerous precedents showed that no redress was to be expected
from the available remedies or where ... application of the remedies was unreasonably prolonged.").
Conccrning the lirst poi111, the l'ollowing may hc said. The importance or provisional
mcasurcs l'or the protection or the rights or States and hy neccssary implication or the
rights ami inlerests or individuals thercin contained is sclf-eviclent.'' Prolecting rights
from infringeme11t is al the core or the Courl's work and eannot be ignored al any slage or
proccedings beforc lhe Court. Protccting human rights should also he at lhe f<.wefronl or
any allcmpt al engagement in the international legal system. The aeceplancc or the
crilical role or human righls wilhin lhe international legal system is refleeled in the work
or the Court. 10 Violations or human righls, and a conlinuing situation or such violations
have to be or conccrn lo the Cour! in any relevant procedure bcfore il. Il is an issue wilh
regard lo which one would righlly expecl lhe Court lobe sensitive and allenlivc.
Sicle by side wilh lhis intclleclual orientation, howcver, il must also be kept in mind lhal
the Cour! is a judicial organ conslrained by rules and proccdures. Il operales in
accordance wilh the UN Charter, ils Statule and the Rules or Court. Furlher, it operales
wilhin an aceepled juridieal environment whieh means thal the righls (and obligations) or
ail relevant pm1ies before it have to be respeeted. To put it another way, the rights of
those suf'f<.:ring (or claimed lo be sulforing) from human rights violations, particularly
conlinuing ones, have to be plaeed within the vision of the Court, but must operate in
aceordanee with the framework established by international law. Only States ean be
parties before the Court in eonlentious procecdings and the Com1 when ealled upon to
adjudicate upon a malter has lo do so in the light of the rights and duties of those States
that are before the Court seeking a legal detennination.
As part of ensuring this balance between regard for vulnerable (or claimed vulnerable)
individuals and groups on the one hand and adjudication between States in the light of
their rights and obligations under international law on the other, the Court has had
rceourse inter alia to the doctrine of plausibility. lt is, one may assume, an attempt to
establish a standard to be reaehed or a necessary hurdle to be sunnounted before taekling
substantive issues of protection of, for example, the rights or interests of individuals,
groups or States under perceived threat. In other words, assessment of the plausibility of
the rights relied upon is an indispensable preliminary step needed in order to address
claimed violations of rights, whatever their origin.
9 Application of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of Ali Forms of Racial Discrimination (Ukraine v. Russian
Federation), Provisional Measures, Order of 19 April 2017, Separate Opinion of Judge Cançado Trindade at para.
10.
10 See e.g. Legal Consequencesfor States of the Continued Presence of South Aji-ica in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (/970), Adviso,y Opinion, J.C.J. Reports /971, p. 16; Western
Sahara, Advismy Opinion, I.C.J. Reports 1975, p. 12; Legat Consequences of the Construction of a Wall in the
Occupied Palestinian Territo,y, Adviso,y Opinion, /. C.J. Reports 2004, p. 136; Ahmadou Sadio Di allo (Republic of
Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, p. 639; and Questions
relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 20/2, p. 422.
3. What arc the implications or cf'fccts, if any, of the existence of a continuing situation
allcgcdly affccting rights protectcd under a human rights Convention, for requests
of Provisional Measures of Protection?
Whcrc it is argucd that a continuous situation allegcdly affccting rights under a human
rights convention cxists, the Court must take this into account in ail gravity in
approaching the case in question. However, the Court is obliged to act in accordancc with
the relevant rules and norms of international law. The very fact that a lmman rights
situation exists (or is alleged) does not, and cannot, as such affect the legal framework
within which the Collli must fonction. In other words, the existence of a particular kind
of dispute between the parties cannot as such deflect the Court from applying the relevant
rulcs and processes as it understands them. Thcre are no special rules or procedures for
different kinds of cases in contentious proceedings before the Comi, whose functions (as
defined in Article 38, paragraph 1, of its Statute), are different from those of, for example,
regional courts of human rights and which cannot substitute them when the concerned
States are not bound by treaties instituting such courts.
Indeed, the Court has been faced in the past with situations that bear upon the populations
of States of some real or potential severity. For example, the Court in its Order on
Provisional Measures in Land and Maritime Boundary between Cameroon and Nigeria
refe1Ted to armed incidents that had resulted in fatalities of military and civilian personnel
and major material damage, 11 but nevertheless emphasized that:
"this power to indicate provisional measures has as its object to preserve the
respective rights of the Parties, pending a decision of the Comi, and presupposes
that irreparable prejudice shall not be caused to rights which are the subject of
dispute in judicial proceedings; whereas it follows that the Court must be
concemed to preserve by such measures the rights which may subsequently be
adjudged by the Court to belong either to the Applicant or to the Respondent; and
whereas such measures are only justified if there is urgency." 12
The terminology "rights which may subsequently be adjudged by the Court to belong" to
either party was the way in which the Court expressed in that period what may be termed
today the "plausibility" of rights. 13 The test was expressed thus by the Court most
recently in the Jadhav case:
''the Court must be concemed to preserve by such [provisional] measures the
rights which may subsequently be adjudged by it to belong to either party.
11 Land and Maritime Bounda,y between Cameroon and Nigeria, Provisiona/ Measures, Order of J 5 March 1996,
I.C.J. Reports 1996, p. 22, para. 38.
12 Ibid., pp. 21-22, para. 35.
13 See also Application of the Convention on the Prevention and Punishment of the Crime ofGenocide, Provisional
Measures, Order of 8 April /993, /.C.J. Reports 1993, p. 19, para. 34.
Thcrcforc, the C'ourl may cxcrcisc lhis power only i r il is salis lied lhal lhc righls
asscrtcd by lhc party rcqucsling such mcasurcs arc al lcasl plausiblc." 14
The words uscd rcllcclcd lhosc uscd in lhc Ukraine v Russia Provisional Mcasurcs Ordcr
or 19 April 2017, a silualion which indccd conccrncd allegalion of con .inuing human
n•g 1 1 ls v1. 0 Ia t1•o ns. 1·~
The Court has thus bccn consistent in rcquiring thal provisional measures cannot be
indicatcd wherc the parly requesting such measures cannot persuade the Court that the
rights it asserts are "at least plausible." This is so whatever the nature of the rights or
allcgcd rights that it is claimed have bccn violated and this has been so even wherc
cgrcgious human rights violations have been asserted. There is no different standard.
h thus follows that the existence of a continuing situation allegedly affecting rights
protected under a human rights treaty does not as such change or modify the conditions
required for the indication of provisional measures of protection.
The UAE is focused upon the importance of the implementation of binding treaties and
the fight against terrorism. In doing so, it recognizes the need for respect for the mies and
principles of international law, including those relating to human rights. It denies that
there has been any violation of the Convention as alleged by Qatar, whether of a
continuing character or at ail. Qatar has corne to the Court to request the indication of
provisional measures of protection. It needs to comply with the requirements of such a
process. Unproven allegations have been met with clear evidence and Qatar has fallen far
short of demonstrating that the conditions necessary for the grant of provisional measures
by the Court have been met.
Response of the UAE to the question of Judge Bhandari:
4. In bis opening statement yesterday, the Agent of the UAE said, inter alia "[a]lthough
the UAE's announcement on 5 June 2017 ... did call upon Qatari citizens to leave its
territory for precautionary security reasons ... ". My question is: could the UAE
please clarify what was meant by "precautionary security reasons" in the
announcement of 5 June 2017?
As stated during the oral arguments, the UAE on 5 June 2017 terminated relations with
Qatar due to national security concems particularly seriously felt at that time - in
particular, Qatar's support for terrorism and extremism, its meddling in the internai
14 Jadhav Case (Jndia v. Pakistan), Order of 18 May 2017, para. 35.
15 Application of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of Ali Forms of Racial Discrimination (Ukraine v. Russian
Federation), Provisional Measures, Order of /9 April 2017, para. 63, referring in turn to lmmunities and Criminal
Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of7 December 20/6, lC.J. Reports 20/6,
pp. I 165-I I 66, para. 71.
afTairs or the UJ\E, ami ils propagation or hale speech. The UJ\E, as well as several other
States, dctermined that these threats wcre serious and - dcspitc rcpcatcd aUcmpts by the
UJ\E to persuade Qatar to stop and rcpcatcd commitmenls by Qatar to stop ils actions -
the threats pcrsisted. One aspect or the UAE's 5 June 2017 announcement was a call for
citizens of Qatar to !cave the UJ\E and UAE citizens to !cave Qatar and rcturn home for
precautionary security reasons.
Prccaution is routincly invokcd by governments - to protect food safety, to combat
discasc, to prevent loss from floods and othcr disasters and, or course, to guard against
llll"eats to their security and the stability of their govemments. As explained, this
particular aspect of the 5 June 2017 announcement was not subsequently implcmcntcd
and a process was quickly put in place for Qataris to request approval to enter the UAE.
The entry requirements imposed on Qatari citizens are consistent with the Convention.
Article 1 (2) of the Convention makes plain that State pat1ies have the right to makc
distinctions between citizens and non-citizens with regard to immigration and entry
rcquirements. State Pa11ies to the Convention routinely impose immigration restrictions
on immigrants based on the countries from which they corne or of which they are
citizens. The Convention in Article 1(3) constitutes the sole exception to the rights of
States to make distinctions based on nationality, and then only in relation to the
application of laws goveming "nationality, citizenship or naturalization"; however, it
imposes no limitations on laws governing immigration, which are separate and apart from
matters of "nationality, citizenship, and naturalization."
Response of the UAE to the question of Judge Crawford:
5. My question is this. Is the announcement of 5 June 2017, and in particular its
paragrapb 2, still in effect? Has the UAE made any furtber announcement
clarifying that Qataris resident in the UAE may elect to stay, notwitbstanding
paragrapb 2 of the announcement?
The announcement of 5 June 2017 is a media statement issued by the UAE Ministry of
Foreign Affairs and International Cooperation ("MoFA") in support of the
announcements made earlier that day by the Kingdom of Bahrain and the Kingdom of
Saudi Arabia. MoFA does not have legislative authority to establish the measures
described in paragraphs (2) or (3) of the announcement. The announcement therefore
does not establish any of those measures. Instead, the measures that the UAE
subsequently established are set forth in specific implementing instruments, including:
1. Circular no. 2/2/1023 of the UAE Federal Transport Authority - Land and
Maritime, issued on 11 June 2017, regarding Qatari vessels, and the loading and
unloading of cargo.
11. The UAE Gcncral Civil Aviation Authority's Notices to Airmcn (NOTA.Ms)
A0812/17 and A0848/17, issued on 5 June 2017 and 12 .lune 2017 rcspectivcly,
effecting the closure or UAE airspace to Qatari aircrall.
111. Circulars issued by the UAE Central Bank (including Circulars no. 156/2017
dated 9 June 2017. no. 156/2017 dated 9 June 2017, no. 218/2017 dated 25 July
2017, no. 345/2017 datcd 26 October 2017. no. 9/2018 dated 14 January 2018 and
no. 131/2018 dated 22 May 2018), instituting freeze orders on ten-orist funding
and heightened duc diligence requirements relating to Qatari banks.
None of the above instruments implement the mcasures described in paragraph (2) of the
5 June 2017 MoFA announcement. The power to administratively expel individuals from
UAE territory falls under the authority of the Ministry of Interior by virtue of Federal
Law No. 6 of 1973 Conceming Immigration and Residence (the "Immigration Law").
Following the MoFA announcement of 5 June 2017, the Ministry of Interior did not issue
any administrative deportation orders against Qatari nationals based on their Qatari
nationality or citizenship.
One cannot therefore speak of the MoFA announcement "being in effect" with regard to
the immigration issues relevant here. Only administrative orders issued under the
Immigration Law could have "effected" expulsions. And, since no such orders were
issued against Qatari nationals based on their citizenship, the UAE was not required to
rnake a further announcement regarding the ability of Qataris to remain in the UAE. The
right of Qataris to remain in the UAE, and to enter upon prior application, were selfevident
at the time, as is confinned by the extensive immigration entry and exit records
submitted by the UAE into evidence, and as is shown by the large number of Qataris who
chose to remain in the UAE, notwithstanding the instructions issued by the Qatari
embassy in the UAE for them to depart. 16
Furthennore, to ensure that the situation was understood, and to facilitate applications for
entry into UAE territory, the UAE almost immediately publicized the availability of the
relevant telephone line. 17 As the UAE has shown the Court, the telephone line
subsequently began to receive, and accept in great numbers, such applications. 18 To
reaffinn: there has been and is no law or administrative order expelling ail Qataris from
Qatar, nor is there any policy in place to that effect.
Although the UAE maintains that there is no need for an announcement clarifying the
entry and residence requirements applicable to Qatari nationals, the UAE is at present
actively contemplating the issuing of such an announcement. This would clearly confinn
the UAE's position in its pleadings and may help to eliminate the confusion created in the
public by Qatar's filing of this case and the allegations contained in its pleadings.
16 See Exhibits 11 , 13 and 14 of the UAE's submission to the Court (dated 25 June 2018).
17 See Exhibit 2 of the UAE's submission to the Court (dated 25 June 2018).
18 See Exhibit 3 of the UAE's submission to the Court (dated 25 June 2018); see also CR 2018/13 (28 June 2018) at
pgs. 34 (Treves) and 66 (Shaw).