INTERNATIONAL COURT OF JUSTICE
QATAR V. UNITED ARAB EMIRATES
HEARING ON QATAR'S REQUEST FOR PROVISIONAL MEASURES
Comments on beha(lof the Stale of Qatar on the Wrillen Reply
Submitted by the United Arab Emirates on 3 July 2018
Question 1: Does the local remedies rule have the same rationale
in diplomatic protection and in international human rights
protection? Does the effectiveness of local remedies have an
incidence under the International Convention on the Elimination of
All Forms of Racial Discrimination?
I . Qatar wishes to make three comments on the written
response to this question submitted by the United Arab Emirates (the
"UAE').
2. First, Qatar maintains that, in international human rights
protection, the rationale of the local remedies rule has gone beyond the
traditional concern over the State's opportunity to redress a violation by
its own means and within the framework of its own domestic system, as
reflected in lnterhandel: it also encompasses the additional element of
"actual redress."1 This is likely why in Diallo (a case concerning human
rights protection, as the UAE observes2), the Court required "the DRC to
prove that there were available and effective remedies in its domestic
legal system,"3 whereas in lnterhandel and ELSI (both cases not
concerning human rights protection), the Court did not make any
mention of the "effectiveness" criterion at all.4
2
4
See Response on behalf of the State of Qatar to the Questions posed by
Judge Canado Trindade, 3 July 2018 (hereinafter "Qatar's Response")
paras. 3-6.
See Response of the United Arab Emirates to the questions of Judge
Canado Trindade, Judge Bhandari, and Judge Crawford, 3 July 2018
(hereinafter "UAE's Response"), p. I.
Ahmadou Sadia Diallo (Republic of Guinea v. Democratic Republic of the
Congo), Preliminary Objections, Judgment of 24 May 2007, I.C.J. Reports
2007) (hereinafter "Diallo"), p. 600, para. 44 (emphasis added).
Interhandel Case (Switzerland v. United States), Preliminary Objections,
Judgment o/21 March /959, I.C.J. Reports 1959, p. 27; Elettronica Sicula
3. Second, while the UAE takes the position that "in the context
of Articles 11 and 22 of the Convention, the local remedies] rule applies
in the framework of diplomatic protection," in the present case, Qatar
has made its requests "in its own right" and "as parens patriae of its
citizens.',<; As the Court held in Avena, "[t]he duty to exhaust local
remedies does not apply to such a request."7 And, in any case, the Court
does not need to address issues of admissibility, such as the exhaustion
of local remedies, at this stage of the proceedings.8
4. Third, Qatar welcomes the UAE's acceptance that "the
effectiveness of the available local remedies is a component of the rule
requiring exhaustion of local remedies.''9 Qatar furthermore notes the
burden of proof in this regard: as the Court held in Diallo, "[i]t is for the
respondent to convince the Court that there were effective remedies in its
domestic legal system that were not exhausted."JO
Question 2: Is it necessary to address the plausibility of rights in
face of a continuing situation allegedly affecting rights protected
under a human rights treaty like the International Convention on
the Elimination of All Forms of Racial Discrimination?
5. Qatar welcomes the UAE's acknowledgment that a situation
of continuing violations of human rights "is an issue with regard to
which one would rightly expect the Court to be sensitive and attentive."11
5
6
7
9
10
II
S.p.A. (ELSI) (United States v. Italy), Judgment <?f 20 July /989, /.C.J.
Reports /989, p. 46, para. 59.
UAE's Response, p. 2.
Qatar's Application, p. 65; CR 2018/14, pp. 18-19, paras. 3-4 (Klein); see
also Qatar's Response, para. 8.
Case Concerning Avena and Other Mexican Nationals (Mexico v. United
States of America), Judgment of 31 March 2004, I.C.J. Reports 2004,
pp. 35-36, para. 40; see also CR 2018/14, pp. 18-19, paras. 3-4 (Klein).
See CR 2018/14, pp. 17-18, para. 2 (Klein).
UAE's Response, p. 2.
Diallo, p. 600, para. 44.
UAE's Response, p. 3.
2
Qatar otherwise rests on its prior submission in response to Question 2
and will deal with the UAE's comments on the plausibility of rights in its
response to Question 3.
Question 3: What are the implications or effects, if any, of the
existence of a continuing situation allegedly affecting rights
protected under a human rights Convention, for requests of
Provisional Measures of Protection?
6. Qatar agrees with the UAE that ( 1) "[p]rotecting rights from
infringement is al the core of the Court's work and cannot be ignored al
any stage of proceedings before the Court," and (2) "[p ]rotecting human
rights should ... be at the forefront of any attempt at engagement in the
international legal system."12 The taller point applies with special force
to States in their international relations, and it is the UAE's failure to
comply with its Convention obligation lo protect all individuals,
including Qataris, against racial discrimination that causes Qatar to seek
that protection from this Court in the form of provisional measures.
7. Indeed, while the UAE employs the tenn "balance," it is
quick lo acknowledge that any balancing is already reflected in the
standard of plausibility.13 It follows that when the Court assesses the
plausibility of the legal rights a requesting party asserts or the factual
claims it makes under a human rights convention, it must take into
account the character of the human rights in question and the
vulnerability of the affected individuals, in order to give effect to the
protective function of human rights conventions. 14
12
13
14
Ibid; Qatar's Response, p. 3.
UAE's Response, p. 3 ("As part of ensuring this balance between the
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 recourse
inter a/ia to the doctrine of plausibility.") (emphasis added).
Qatar's Response, paras. 24-29 ("In short, whether or not the Court puts
the requisite showing in terms of'plausibility of rights' or 'vulnerability of
populations' for purposes of a human rights treaty such as the Convention,
at a minimum, the rights asserted under the Convention should be subject,
in accord with the Court's jurisprudence, to a low threshold showing of
both legal and factual plausibility in order to indicate provisional
measures.").
3
8. Likewise, when considering "urgency" in the context of a
continuing situation allegedly affecting rights protected under a human
rights convention, the criteria of risk and irreparable harm are necessarily
met. As Qatar pointed out in its first submission, when confronting a
continuing situation, the Court has no need to assess the likelihood of a
threatened but future event; the hann is not merely imminent but
presently occurring. 15 And as the Court has recognized, by their very
character. rights protected by human rights conventions may give rise to
irreparable harm when prejudiced. 16
9. Finally, while the UAE "denies there has been any violation
of the Convention as alleged" in its Response,17 it can only do so by
ignoring the independent reporting, following comprehensive evaluation,
throughout the course of the past year showing violations of the
Convention.18 Even on the UAE's own case, the evidence submitted by
the UAE only confirms Qatar's position, as it demonstrates, at the very
least, that the continuing situation "ha[s] not yet been resolved in [its]
entirety."19 When the Court interprets and applies the criteria of
plausibility and urgency in light of the continuing situation before it, the
Court should find that these criteria are more than satisfied.
15
16
17
18
19
CR 2018/ 14, p. 33-34, paras. 9-13 (Goldsmith). Qatar's Response, para.
37.
Qatar's Response, paras. 32-35.
UAE's Response, p. 5.
CR 2018/12, pp. 54-59, paras. 12-30 (Goldsmith); CR 2018/14, pp. 39-43,
paras. 34-54 (Goldsmith); Qatar's Application, para. 7; see also, e.g.,
Office of the United Nations High Commissioner for Human Rights'
Technical Mission to the State of Qatar, 17-24 November 2017, Report on
the Impact of the Gulf Crisis on Human Rights (December 2017), (Annex
16 to Qatar's Application), paras. 60-64; Amnesty International, Gulf
dispute: Six months on, individuals still bear brunt of political crisis (14
December 2017), p. l, https://www.amnesty.org/download/Documents/
MDE22760420 I 7ENGL1SH.pdf.
See Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation),
Provisional Measures, Order of I 5 October 2008, l.C.J. Reports 2008,
p. 396, para. 143.
4
Question 4: In his 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 of5 June 2017?
JO. In its Response, the UAE does not address Judge Bhandari's
actual question: namely, what it meant by "precautionary security
measures" in calling upon Qataris to leave its territory in the 5 June 2017
announcement. Instead, the UAE explains only that it terminated
relations with Qatar "due to national security concerns seriously felt at
that time," and that "[o]ne aspect of the UAE's 5 June 2017
announcement was a call for citizens of Qatar to leave the UAE and
UAE citizens to leave Qatar and return home for precautionary security
reasons."20 However, nothing in the UAE's Response indicates that its
supposed "national security concerns" related-at all-to actions of
individual Qataris, against whom the measures in the 5 June 2017
announcement were clearly directed. Nor could the UAE make that
connection; that is the unjustified and unjustifiable nature of measures
imposed on a collective basis against an entire group of people.21
11. Ironically, the UAE's Response, echoing its oral
submissions, makes quite clear that its measures were not intended to
address any perceived "precautionary security reasons" related to the
residence, entry or transit of individual Qataris in the UAE, but rather,
were intended as a punitive measure against the State of Qatar through
the punishment of Qataris.22
20
21
22
UAE's Response, p. 5-6.
See, e.g., CR 2018/12, pp. 38-39, paras. 23-24 (Amirfar); CR 2018/14,
p. 30, para. 22 (Amirfar).
E.g., CR 2018/15, pp. 38, 41-42, paras. 10, 12, 27-28 (Shaw) ("Such
actions by Qatar could not remain without consequences, as it had been
informed. This is what generated the difficulties in the region .... [The
problems faced by Qatari-Emirati families] flow from Qatar's behavior and
the responsibility for the circumstances as they are now must be placed
firmly at the door of the Applicant. ... [I]t must be said that the resolution
for the current political crisis and its consequences lies squarely in the
hands of Qatar. They started it with their violation of the Riyadh
Agreements and support for terrorism."). Indeed, the invocation of
5
12. In any event, while the UJ\E has indulged in numerous
political statements during the course of the proceedings,23 it has not
attempted to claim that its ostensible "national security" concernswhich
again Qatar unequivocally denies-justify its actions as a legal
matter-nor could it.24
13. Finally, in its Response, the UAE again attempts to recharacterize
its broad discriminatory measures as mere "immigration
restrictions."25 As previously noted, the discriminatory measures set in
place by the UAE cannot be reduced to a question of "entry
requirements."26 Further, the UAE once again contorts the meaning of
Article I (2) of the Convention in its attempt to justify its measures on
that basis.27 As Qatar has demonstrated in its submissions, Article I (2)
cannot be construed in a manner that undermines the basic prohibition on
discrimination as contained in the Convention.28 Article I (2) is not a
23
24
25
26
27
28
"precautionary security reasons" in the 5 June 2017 announcement made
clear that the order to leave was not precatory or casual. See, e.g., CR
2018/14, p. 35, paras. 18-19 (Goldsmith).
See, e.g., CR 2018/13, p. 11, paras. 4-6 (Alnowais), pp. 63-64, para. 25
(Shaw); CR 2018/ 15, p. 38, para. I O (Shaw), p. 42, paras. 5-6 (Alnowais).
Unlike other human rights instruments, the Convention provides no basis
for derogation, including for national security reasons, and, indeed, the
Committee has made clear that "measures taken in the fight against
terrorism" must still comply with the Convention's obligations. See CERD
Committee General Recommendation XXX, para I 0.
UAE's Response, p. 6.
CR 2018/14, pp. 29-30, paras. 19-22 (Amirfar) ("Qatar does not contend
that the UAE has no right to regulate its borders. Qatar does contend,
however, that the expulsion ofQataris and ban on re-entry of those Qataris
on the discriminatory basis set forth in the 5 June 2017 directive has had
the effect of infringing on the fundamental human rights contained in
Article 5 and incorporated human rights instruments."); CR 2018/12,
pp. 33-35, paras. 8-11, 16 (Amirfar).
UAE's Response, p. 6.
CR 2018/12, pp. 37-38, paras. 22-23 (Amirfar); CR 2018/14, pp. 24-27,
paras. 9, 12-13 (Amirfar).
6
license to discriminate freely against non-citizens;29 instead, 'judged in
light of the objectives and purposes of the Convention," any distinctions
between citizens and non-citizens must be "applied pursuant to a
legitimate aim" and "proportional to the achievement of this aim."30
This applies both to the distinctions at issue that impact fundamental
human rights protected by Article 5 of the Convention, as asserted by
Qatar in its Application, as well as the unspecified and unsupported
"entry requirements " the UAE would have the Court believe are its only
action taken ( contrary to the evidence presented), imposed on Qataris
collectively after the 5 June 2017 announcement of expulsion without
any basis or criteria beyond Qatari nationality:11
14. Likewise, Article I (3 ), which was introduced at the same
time as Article 1(2) as part of the "compromise amendment, " cannot be
used to justify distinctions in immigration policy that discriminate based
on nationality.32 Indeed, under the Convention, States parties should
"f e]nsure that immigration policies do not have the effect of
discriminating against persons on the basis of race, colour, descent, or
national or ethnic origin."33
29
30
31
32
3J
CR 2018/12, pp. 37-38, paras. 22-23 (Amirfar); CR 2018/14, pp. 24-26,
paras. 9, 12 (Amirfar); see Patrick Thornberry, The International
Convention on the Elimination of All Forms of Racial Discrimination: A
Commentary (2016), p. 146 ("[T]he restriction of rights in I (2) and I (3) is
exceptional and should be construed narrowly.").
CERD Committee, General Recommendation XXX on Discrimination
Against Non Citizens (2002), para. 4.
See ibid paras. 4, 9.
CR 2018/14, pp. 22-24, paras. 5, 9 (Amirfar).
CERD Committee, General Recommendation XXX on Discrimination
Against Non Citizens (2002), para. 9; see also CERD Committee,
Concluding observations on the United Kingdom of Great Britain and
Northern Ireland, U.N. Doc. CERD/C/GBR/C0/18-20 (2011), para. 16
(noting Committee's concern at "a Ministerial authorization ... which
would allow the UK Border Agency (UKBA) to discriminate among
nationalities in granting visas" and recommending that "the State party
remove the exceptions ... as well as the discretionary powers granted to
the UK Border Agency (UKBA) to discriminate at border posts among
those entering the territory of the State party."); CERD Committee,
Concluding observations on Australia, U. N. Doc. CERD/C/AUS/C0/15-
7
Question 5: My question is this. Is the announcement of 5 June
2017, and in particular its paragraph 2, still in effect? Has the UAE
made any further announcement clarifying that Qataris resident in
the UAE may elect to stay, notwithstanding paragraph 2 of the
announcement?
15. Although the UAE's Response to Judge Crawford's question
tries hard not to answer it, there can be no dispute that the UAE's
Ministry of Foreign Affairs, an organ of the State that is authoritative,
issued a statement on 5 June 2017 "[p]reventing Qatari nationals from
entering the UAE or crossing its points of entry, giving Qatari residents
and visitors in the UAE 14 days to leave the country." The UAE has
now had more than a year to forthrightly and definitively disavow and
withdraw this statement. The final paragraph of the UAE's Response to
Judge Crawford-in which it states the UAE is "actively contemplating"
"clarifyin§ the entry and residence requirements applicable to
Qatari[s]"· 4--effectively confesses that, even now, no organ or official of
the UAE has so clarified, or otherwise prevented that 5 June 2017
statement and the UAE policy it reflects from having a continuing
detrimental effect on Qataris.
16. As detailed in Qatar's submissions, and as confinned by
independent human rights bodies, the UAE's measures had and continue
to have a detrimental impact on Qataris.35 In the words of the Office of
the United Nations High Commissioner for Human Rights (OHCHR),
the measures have "a potentially durable effect on the enjoyment of the
human rights and fundamental freedoms of those affected."36 So the
34
3S
36
17 (20 I 0), para. 24 (noting Committee's concern at the suspension on
processing visa applications "for applicants from certain countries" and
"(r]ecalling its general recommendation No. 30 ... reiterates its view that
States parties ensure that immigration policies do not have the effect of
discriminating against persons on the basis ofrace, colour, descent, or
national or ethnic origin.").
UAE's Response, p. 7 (emphasis added).
CR 2018/14, pp. 40-43, paras. 36-53 (Goldsmith).
Office of the United Nations High Commissioner for Human Rights'
Technical Mission to the State of Qatar, 17-24 November 2017, Report on
the Impact of the Gulf Crisis on Human Rights (December 2017), p. 14,
para. 60 (Annex 16 to Qatar's Application).
8
UAE's "contemplation" of potential clarification only confirms the
conclusions of the 01-lCHR and other third parties that the continuing
situation "has not yet been resolved in [its] entirety," necessitating the
indication of provisional measures.J7
I 7. The U A E' s extended discussion of the status of the Ministry
of Foreign Affairs' statement as a matter of UAE law does not detract
from this conclusion. The UAE cannot deny the effects that its measures
have had on Qataris. Even by its own account, the UAE has established
certain measures, including the so-called "hotline," to mitigate the
harmful effects of the measures on Qataris. There would of course be no
need for mitigation if these measures had actually not been "in effect,"38
as the UAE falsely contends.
37
38
See supra paras. 6-9.
UAE's Response, p. 7.
9
Written comments of Qatar on the 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