18 May Qatar v UAE: Uncharted Territory at the ICJ
There have been few cases emanating from the Middle East at the International Court of Justice (ICJ). Referring to the Gulf states (and excluding Iran), the only other contentious case filed at the ICJ has been Qatar v Bahrain in relation to maritime boundaries in 2001. However, the recent case between Qatar and the United Arab Emirates (UAE) is worth keeping an eye on.
A brief recap: In response to a blockade by four states – UAE, Saudi Arabia, Egypt and Bahrain – Qatar sought legal remedies at a variety of fora, based on distinct legal claims. These include three cases at the ICJ (based on the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), on the Convention on International Civil Aviation, and based on the 1944 International Air Services Transit Agreement), and an inter-state complaint before the CERD Committee.
In the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates),the ICJ just concluded hearings on an application for provisional measures, this time from the UAE. It previously ruled on an application for provisional measures by Qatar in July 2018.
Prior proceedings at the ICJ
Qatar alleges that the actions taken by the UAE in expulsions of Qatari citizens, as well as restrictions relating to education of Qatari students are based on national origin, are violative of obligations under the CERD. Of the four blockading states, only the UAE is a party to CERD.
Qatar instituted legal proceedings at the ICJ against UAE on 5 June 2018, asking for provisional measures. On 23 July 2018, the court issued its order on provisional measures, and by a narrow margin of one judge ruled in favour of Qatar. The ICJ specifically directed UAE to ensure not just the end of family separations, but also thereunification of families. In addition, for those students whose studies have been interrupted, to either allow them to continue or return their educational certificates to enable them to continue their education elsewhere. Further, families subjected to separations were to have access to courts and tribunals within the UAE. And lastly, both parties were instructed not to take any actions to aggravate the dispute.
The court found that it did have jurisdiction for the purposes of the provisional measures, based on a pre-existing dispute and that there were no alternate measures such as negotiations underway to resolve the dispute. Interestingly, while the court noted that there was an application before the CERD Committee, it did not consider this sufficient.
On the substantive aspects of the application, the court narrowly found that there was a prima facie case that could be made, based on alleged violations of the convention. To be clear, this determination is only for the purpose of interim relief, and the standard the court applies is substantially less than in its final determination on the merits of the case. (On the potentially troubling reading down of the “plausibility” requirement for the issuance of a provisional measure, see here)
A new request: On treaty bodies and the ICJ
On 22 March 2019, the UAE initiated a request for provisional measures. This application raises a number of legal questions, the most significant of which relate to the proceedings instituted by Qatar before the CERD committee. In its application, inter alia,UAE “requests the court to 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;…”
To the best of my knowledge, the question of contemporaneous proceedings at a treaty body and the ICJ has not been brought up before the ICJ previously. And neither has the ICJ been asked in effect to terminate such proceedings (as the latter part of prayer may indicate).
First, the UAE arguments: that CERD envisages a “linear and hierarchal dispute resolution process” (UAE written submission, 22 March 2019, para. 36), and that for the preservation of “procedural rights”, the application before the CERD committee should be withdrawn. The UAE also makes the argument that the “unity of international law” is in danger, due to the multiplicity of cases and venues (para. 48). UAE asserts that the inherent powers of the court “requires it to order Qatar not to proceed with the parallel proceedings before the CERD Committee” (para. 42) UAE argues that Qatar is aggravating or extending the dispute, by reinstating its CERD application, which was considered suspended when it filed for PM before the ICJ. (The hearings provided an opportunity for more detail, and in particular, see verbatim record of hearings on 7 May, p. 28 – 36.)
In response, Qatar argues that in fact these arguments would result in pre-judging the case and are more appropriate for the jurisdiction and merits phase. On the specifics, Qatar refutes the interpretation of Article 22 of CERD, i.e. that there is a linear progression in terms of dispute resolution. Qatar also asserts that the argument of contradictory outcomes is speculative, and the UAE misunderstands the role of the CERD committee or a conciliation commission, in that no decision will be legally binding. (See 8 May hearings verbatim record, p. 17 – 36)
A few points to highlight: The complaint by Qatar before the CERD Committee was the first inter-state communication filed by a state at CERD. Palestine has subsequently also submitted a complaint. It is no coincidence that the application and hearings by UAE were at the same time that the committee was considering the complaint, between 23 April – 10 May 2019. As the CERD committee stated previously, it would only consider Qatar’s complaint upon the lapse of six months after submission, and therefore at the 98thsession. Clearly the issue was tabled (as evidenced by the provisional agenda for the CERD Committee), but it remains to be seen if this has translated into substantive engagement by the committee. It will be worth watching to see how the CERD committee approaches its mandate, and the fact that there are proceedings ongoing before the ICJ. As it stands, there is no information available as to the procedure that has been followed or a decision by the CERD committee. It is also unclear when any decision may be communicated, to the states in question or publicly.
On an aside, while there have been previous cases related to the CERD convention before the ICJ – Georgia v Russian Federation (dismissed in favour of Russia), and Ukraine v Russian Federation (ongoing) – neither case has involved the pendency of a complaint – individual or inter-state – before the CERD committee.
More questions to ponder…
There are a few distinct but related questions – some of which have been raised – while others have not been brought up, but may be worth considering for the future. Not all may come up in any one case, but this case has certainly opened the door to possibilities.
The first set of questions clearly relate to the nature of proceedings as well as relationship between the ICJ and a treaty body. Is a complaint before a treaty body in the nature of a “judicial” decision, andjusticiable by the ICJ? Does an inter-state complaint mechanism change the nature of the proceedings before a treaty body? Does an inter-state petition (as distinct from an individual complaint), place it within the remit of the ICJ to adjudicate upon?
Another set of questions relate to the recourse to the ICJ, and the request for the ICJ to order the withdrawal of the complaint from the CERD committee. Does the ICJ have the power to issue such an order? And if it does, would the CERD committee be required to comply? Is there a hierarchy between the ICJ and treaty bodies? And what sort of precedent would such a decision set?
And lastly, would it not be more appropriate for the CERD Committee to be requested to dismiss the complaint, and not the ICJ? While assuming that this is also being done, does recourse to the ICJ in effect mean prejudging the issue, and asking the ICJ to decide an issue on merits, at the early stage? (As has been argued by Qatar)
While the argument that the CERD committee is not a court and does not adjudicate on the dispute with a binding legal order is strong, it is not inconceivable to argue that the new inter-state mechanism may be substantially similar to an inter-state dispute, thereby lending itself to an adjudication of rights of state parties. All previous cases cited by the parties relate to those before either other arbitral tribunals or commissions, akin to courts and none in the nature of a treaty body. In part, the strength of the argument will also depend on the manner in which the CERD committee interprets its mandate in this case. The nascent use of this mechanism raises significant questions for the future.
These questions will not all be addressed by the court – but raise interesting points to ponder, and which may come for adjudication in the future. This is certainly a first instance where proceedings before the ICJ and a treaty body are up for consideration – and in an increasingly complex legal eco-system where rights of states and individuals are adjudicated – will not be the last.