Nationality and National Origin under the CERD

[Álvaro Rueda Rodríguez-Vila is a graduate in law (Bachelor, UNED) and in human rights (LL.M., Maastricht University).]

On February 4, 2021 the International Court of Justice (ICJ or the Court) rendered its decision on the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v United Arab Emirates) (here). In this decision, the Court ruled that it does not have jurisdiction ratione materiae in this case because the definition of ‘racial discrimination’ under Article 1(1) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) does not include discrimination on the basis of current nationality neither explicitly nor implicitly under the term ‘national origin’. In this article, I try to explain the several reasons why this interpretation is problematic.

Summary of the Controversy:

In the wake of the Qatar diplomatic crisis in 2017, United Arab Emirates (UAE) established a series of measures to prevent Qatari nationals from entering UAE, to expel Qatari nationals and residents in the UAE, to close the airspace and seaport for all Qataris and to block several websites and television channels operated by Qatari companies.

In response to these measures, Qatar instituted proceedings both at the Committee on the Elimination of Racial Discrimination (CERD Committee or the Committee) and at the ICJ. In its application at the ICJ, Qatar argued that the expulsion order and travel bans, by their express reference to Qatari nationals, discriminate against Qataris on the basis of their current nationality. Under Qatar’s interpretation, discrimination on the basis of nationality is racial discrimination under the CERD because nationality is included in the term ‘national origin’ of Article 1(1) of the CERD. UAE, on the other side, rejected this interpretation and argued that discrimination on the basis of nationality is not included in the definition of racial discrimination under the CERD.

Article 1(1) of the CERD reads as follows: “In this Convention, the term

“racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.

Because ‘nationality’ is not explicitly included, the first question the Courts needed to answer in order to determine its jurisdiction ratione materiae was whether the concept of ‘national origin’ includes current nationality.

To do so, the Court relied on the rules of interpretation enshrined in Articles 31 and 32 of the VCLT as they reflect rules of customary law. However, these rules are far from being perfect when they deal with the interpretation of human rights treaties. As Scheinin explains,

“the VCLT was drafted with one ideal type of international treaty in mind, namely treaties between states, without third-party beneficiaries and with any international-level monitoring mechanisms” (p 22).

This affects the interpretation of a human rights treaty in three aspects: first, the interpretative authority of the body established under the treaty, second, the interpretative methodology and third, the recourse to the travaux préparatoires.

Interpretative Authority of a Human Rights Treaty Body:

All human rights treaties establish a body to oversee the application of such treaty, including its interpretation. Similarly as the rest of human rights treaties, the CERD has established its own committee.

In relation to this case, the CERD Committee has already published its interpretation regarding discrimination against non-citizens in its General Recommendation XXX:

“Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim” (para 4).

Furthermore, the Committee has reaffirmed this interpretation in later decisions (here paras 53-63 and here paras 10-19).

While the ICJ recognises in its judgement that it should “ascribe great weight” to the interpretation of the CERD Committee, it disregards this interpretation. In doing so, the only reason the Court gives is that it has arrived to a different conclusion (see para 101). However, as Judge Bandhari explains in his Dissenting Opinion (paras 21-25), not only is there no compelling reason to disregard the interpretation set out in General Recommendation XXX but in doing so the Court is departing from its own jurisprudence.

Even if there is no hierarchical relation between different international courts and committees, and the ICJ is not bound by the previous interpretation set up by other bodies (para 101), there are two avenues that provide legal justification why it should have followed the precedent of the Committee.

First, as is well known, Article 38 of the ICJ Statute lists judicial decisions and the teachings of the most highly qualified publicists as a source of law. Judge Bandhari considers the members of the CERD Committee as falling into the category of the “most highly qualified publicists” and therefore General Recommendation XXX should be given great weight (para 22).

Second, Article 31(3)(b) of the VCLT lists ‘any subsequent practice in the application of a treaty’ as a means of treaty interpretation. Scheinin considers that there are many good reasons to accept that “institutionalized practices of interpretation under human rights treaties do count as subsequent practice that establishes the correct interpretation of the provisions of the treaty in question” (here p 30 and here p 33).

Following either option the conclusion is that the Court should have followed the prior interpretation of the Committee.

Interpretative Methodology in Human Rights Treaties:

As previously explained, the VCLT was drafted with one type of treaty in mind. Because of this, the rules of the VCLT should be considered as an approximation of the applicable rules and not a complete codification of the rules of customary law in respect of the interpretative rules of human rights treaties (here p 32).

When it comes to interpretative methodology of human rights treaties, the first human rights body to lay down its methodology was the ECtHR, giving special weight to the object and purpose of the Convention. This is clearly illustrated in Wemhoff v Germany (para 8): “Given that it is a law-making treaty, it is also necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties”.

Furthermore, the ECtHR has also stressed the importance of interpreting the Convention in light of the current standards and not on the particular intentions when the Convention was drafted: “the Convention is a living instrument which […] must be interpreted in the light of present-day conditions” (Tyrer v UK, para 31).

These approaches have been subsequently followed by the rest of human rights bodies, such as the IACtHR (in its Advisory Opinion OC-16/99, paras 114-115) and by the UN human rights treaty bodies, including the CERD Committee.

In addition, all human rights bodies have stressed the importance of placing human persons in the centre of international human rights law and to interpret treaties giving individuals the best protection possible, which is known as the pro homine principle. Following these methodological approaches, careful should be given to interpret restrictively the concept of ‘racial discrimination’ and the term of ‘national origin’.

Even though Article 1(1) of the CERD does not list ‘nationality’ and Article 1(2) establishes that “this Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens”; Article 1(3), while excluding the legal provisions of States Parties concerning nationality, citizenship or naturalisation, it also includes an exception: “provided that such provisions do not discriminate against any particular nationality” (emphasis added).

This clause a contrario sensu means that a provision that discriminates against a particular nationality does fall under the provisions of the CERD. With this clause it would make no sense to exclude nationality outright from Article 1(1). If there is no possibility to consider nationality included in Article 1(1), it would be irrelevant if provisions discriminate against a particular nationality because they would still be excluded from the CERD.

So, an interpretation excluding nationality would strip out content from Article 1(3) and it would run against the principle of effectiveness because, in words of Fitzmaurice

“particular provisions [of a treaty] are to be interpreted so as to give them their fullest weight and effect consistent with the normal sense of the words and with other parts of the text, and in such a way that a reason and a meaning can be attributed to every part of the text” (p 211).

In addition, it can be also pointed out that the measures taken by UAE do not fall under Article 1(2) because they do not merely distinguish between citizens and non-citizens. They add a special category to that distinction: there are citizens, citizens of Qatar and non-citizens, which creates a specific and particular category based on nationality.

In this sense, the words of Professor P. Thornberry are particularly relevant. For him “a reading of 1(2) that rules out from the Convention any concern with non-citizens could be classified in (VCLT) terms as a ‘manifestly absurd or unreasonable’ reading of the ICERD, and as not corresponding to its object and purpose” (here paras 58 and here paras 14).

Taking that in mind, an interpretation of Article 1(1) excluding nationality runs against the object and purpose of the treaty which, as any human rights treaty, is to create real and effective rights; it goes against the methodology followed by all human rights bodies, which is to interpret human rights giving the best protection possible; and it strips out of content part of Article 1(3), which runs against the principle of effectiveness.

Recourse to the Travaux Préparatoires:

Although recourse to the travaux préparatoires is contemplated in Article 32 of the VCLT, it remains a problematic practice. Generally because, as Jacobs explains, “records of treaty negotiations are in many cases incomplete or misleading” (p 339); and particularly to human rights treaties because of their dynamic interpretation and evolving standards. This is of particular significance here because the CERD is a 55 years old treaty and its interpretation should not be dependent on the analysis of what the intentions where during the drafting.

In this case, while the ICJ considers that it does not need to resort to the travaux préparatoires (para 89), it does it to confirm its previous conclusion (para 97), that ‘national origin’ does not encompass ‘nationality’. However, it acknowledges that both parties carried out detailed analysis of the travaux préparatoires to support their respective positions and in opinion of both Judge Bhandari (paras 16-20) and Judge Robinson (Dissenting Opinion of Judge Robinson, para 12), the travaux préparatoires can confirm the opposite conclusion. This shows that in this case the travaux préparatoires do not give a straight and clear answer to the question.

The use of travaux préparatoires here does not help to achieve the objective set up in Article 32 of the VCLT: to confirm the meaning of terms when the interpretation leaves the meaning ambiguous or obscure or leads to a manifestly absurd or unreasonable result. As they can justify either interpretation, they provide no help.

Conclusion:

The Judgement of the ICJ in the case of the Application of the CERD (Qatar v UAE) is problematic for several reasons explained above: it runs against the interpretation previously made by the CERD Committee, it applies the interpretation rules of VCLT without taking into account the special features of a human rights treaty and it uses the travaux préparatoires to justify its interpretation when they could also justify the opposite conclusion.

As Bianchi explains and, while talking about the Marshall Islands case but it could also be applied here,

“The traditional view of the judge finding “the correct legal view” […] is hardly tenable nowadays. Much more fitting is the idea propounded by Lauterpacht that judges make choices. Most of the time such choices are not made between legally founded and legally ill-founded claims, but rather among legally plausible claims, among which the judge has to choose” (p 82-83).

In this case the ICJ chose the claim that constraints the rights of individuals, diminishes the interpretative authority of other treaty body and adds fragmentation to international law.