Qatar v United Arab Emirates: The Mystery of National Identity
Shawn Tan Yoong Sern, Vice President (2020/21)
MACRO INSIGHTS 2020/21
On February 2021, the World Court (‘the Court’) issued their first judgment of 2021 in relation to the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’ or ‘the Convention’) submitted by Qatar against the United Arab Emirates (Qatar v UAE). With a narrow majority of 11-6, the Court dismissed Qatar’s Application and upheld UAE’s objection that the measures it imposed on Qatar were based on nationality, and not under the scope of ‘national origin’ under ICERD. This inevitably prompts a few questions: Is there an underlying distinction between discrimination based on nationality and one based on national origin? And if so, is there a necessity to distinguish these two?
The dispute first arose when UAE announced a series of sea, land and air blockade against Qatari nationals on 5 June 2017. Becoming known as the Qatar diplomatic crisis, several countries in the Arab world joined the Saudi and Emirati-led coalition in severing diplomatic ties with Qatar, citing Qatar’s support of destabilizing the region. Kuwait, a neutral nation and a mediator of the crisis, presented a 13-point list submitted by Saudi Arabia, Bahrain, UAE and Egypt, the first few who cut ties with Qatar. Among other demands are to curb diplomatic ties with Iran and ‘terrorist organizations’, shut down Al Jazeera Media Network and remove Turkey’s military presence in Qatar. Qatar rejected these demands, asserting that there is ‘no legitimate justification’ of such allegations.
To reach to the point of contention, the UAE in its Ministry of Foreign Affairs’ statement has barred Qatari nationals from entering the UAE, giving Qatari residents and visitors 14 days to leave the country for precautionary security reasons. UAE nationals are similarly prohibited from travelling to or staying in Qatar. The UAE has also taken additional measures for criminal charges against social media users who express sympathy for Qatar or oppose the UAE’s foreign policy. In response, Qatar referred the matter to the Committee on the Elimination of Racial Discrimination (CERD), which requested the Chairperson to establish an ad hoc Conciliation Commission.
Firstly, under Article 36(1) of the Statute of the Court, parties are allowed to settle disputes in the Court for any treaty or convention in force, and Article 22 of ICERD authorizes parties in dispute to refer to the Court in relation to the interpretation or application of the Convention. Qatar argued in its Application that the Court has the jurisdiction to assess the interpretation and application of ICERD under the aforementioned provisions and that the parties were not able to settle this dispute despite negotiation attempts. Qatar referred to the impugned measures of racial discrimination based on national or ethnic origin imposed by the UAE against Qatari nationals, one of four grounds of racial discrimination enumerated by Article 1(1) of ICERD: the others being colour, race and descent.
Reviewing further in detail, Qatar made three claims of racial discrimination capable of the UAE violating its obligations under ICERD:
‘Travel bans’ and ‘expulsion orders’ imposed by the UAE have express reference to Qatari nationals;
Restrictions imposed by the UAE on Qatari media corporations; and
Measures taken by the UAE in conjunction with (1) and (2) have resulted in ‘indirect discrimination’ on the basis of Qatari national origin.
The parties held opposing views on all claims made by Qatar, which then formed the subject matter of the dispute. The UAE rejected the Application with two preliminary objections. Firstly, the UAE contended that the Court does not have the jurisdiction ratione materiae over the dispute. In other words, the nature of the alleged acts do not fall under the scope of ICERD and hence the Court does not have authority to decide the case. Secondly, the UAE claimed that Qatar did not satisfy the procedural preconditions under ICERD, Article 22.
A Divided Decision
The Court, with 11-6, dismissed Qatar’s Application, with President Yusuf and Judge ad hoc Daudet appending a Declaration to the judgment, Judges Sebutinde, Bhandari and Robinson dissenting, and Judge Iwasawa issuing a separate opinion. Interestingly, judgments on jurisdiction are generally more divisive since the 2010s, and hence deserves appropriate consideration especially in light of the Qatari diplomatic crisis that signalled international attention. Their judicial reasoning will be evaluated accordingly by the preliminary objections submitted by the UAE:
First Preliminary Objection: Jurisdiction Ratione Materiae
The Court first considered whether it has the jurisdiction to adjudicate the dispute under Article 22 of ICERD by assessing whether the term “national origin” encompasses current nationality in respect to the differentiation based on the current nationality of Qatari nationals. Qatar argued in the affirmative while the UAE asserted otherwise.
Article 31, paragraph 1 of the Vienna Convention on the Law of Treaties (‘Vienna Convention’) provides that a treaty should be interpreted with its ordinary meaning, in light of the object and purpose of the treaty. So, the majority, in applying the provision, states that ‘origin’ refers to ‘a person’s bond to a national or ethnic group at birth’, whereas nationality denotes a ‘legal attribute which is within the discretionary power of the State and can change during a person’s lifetime’. Hence, the majority finds that national origin and nationality are two distinct elements that need to be distinguished.
In support of their decision, the majority propounded that in paragraphs 2 and 3 of Article 1 in ICERD supports the notion that nationality does not fall under racial discrimination, and indeed, the scope of ICERD. The Convention does not affect legislation concerning nationality, citizenship or naturalisation, and any ‘distinctions, exclusions, restrictions or preferences’ between citizens and non-citizens are valid. Differentiation based on nationality is common amongst States’ legislation, and it is the aim of the Convention to eliminate racial discrimination on the basis of characteristics acquired by origin, that is, something born at birth, and not nationality which can change during a person’s life such as acquisition of another citizenship of a state. The drafters of the Convention have in fact borne in mind the differences between national origin and nationality, and hence the Court concluded that ‘national origin’ does not include current nationality.
The CERD noted in its General Recommendation XXX that ‘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’ In this regard, while the Court is bound to ‘ascribe great weight’ into the interpretation of conventions given by committees governing the convention, the Court is not obliged to follow the interpretation. In this case, the majority decided not to mirror the interpretation made by CERD and declared Qatar’s first claim failed.
In relation to the second claim, Qatar argued that by restricting Qatari media corporations in the UAE infringed the right to freedom of opinion and expression of Qataris. However, the Court noted that only individuals or groups of individuals are substantially covered under the Convention, and ‘institutions’ only refers to ‘collective bodies or associations, which represent individuals or groups of individuals’. The majority concluded that the second claim did not fall under the Convention’s scope.
With regard to the third claim, the majority considered that a restriction can be racial discrimination under ICERD if it has the effect of invalidating the exercise of human rights and freedoms in various field of public life. As a result, because of the first and second claim being dismissed as to the differentiation not amounting to ‘national origin’ and corporations are not concerned under the Convention respectively, the claim also failed since the measures imposed by the UAE (which the Court termed as ‘declarations criticizing a State or its policies’) do not involve, either by their purpose or by their effect, racial discrimination under ICERD albeit on the facts claims on ‘indirect discrimination’ can be proven.
Second Preliminary Objection: Procedural Preconditions under Article 22
The UAE contended that Qatar did not satisfy the procedural preconditions under Article 22, ICERD where it states that any dispute between parties in regard to the interpretation or application of the Convention not settled by procedures expressly provided for in the Convention shall be referred to the Court. The majority concluded that since the first preliminary objection was upheld, it was not necessary to assess the second preliminary objection.
Out of the six dissenting judges, four (President Yusuf, Judges Sebutinde, Bhandari and Robinson) delivered their reasoning of opposing to the majority’s decision. The reasoning from the dissenting judges can be summarised into 4 categories:
The Court should have left the examination on merits
President Yusuf, Judges Sebutinde and Bhandari have expressly mentioned that the majority should have rejected UAE’s preliminary objections and left the examination on merits. President Yusuf argued that what is vital at the current stage is whether the impugned measures were capable of having an adverse effect on rights protected under ICERD, of which he and Judge Bhandari believed there is a capability which the majority should have considered during the merits stage. Judge Sebutinde agreed that interpretation of ‘national origin’ is a ‘delicate and complex’ one and deserves a holistic examination of evidence and Parties’ arguments before reaching a final conclusion. Judge Iwasawa, concurring, also believed that the Court should have left the examination on merits as they require extensive factual analysis to establish whether an ICERD-protected group can be distinguished by national origin with regard to the first and second claim.
The Court’s delineation of interpreting ‘national origin’ under Article 1, paragraph 1 is questionable
Judges Bhandari and Robinson gave extensive reasons in their dissenting opinions as to why the majority’s direction of interpretation of ‘national origin’ under Article 1, paragraph 1 of ICERD is dangerous.
First, turning into Judge Bhandari, he claimed that nationality belongs to a subset of ‘national origin’ albeit in a purely legal sense is considered to be within the State’s discretion and subject to change over a person’s lifetime. He further contended that ‘[b]elonging in this sense may be long-standing or historical, and defined by ancestry or descent, or it may be confirmed by the legal status of nationality or national affiliation’. Furthermore, Qatar adopts a jus sanguinis model in relation to Qatari Citizenship Act, which confers nationality by parentage. Hence, a huge number of Qatari nations are born Qatari and are Qatari in the sense of their heritage, dwindling the distinction made by the majority. Judge Robinson asserted that the difference presented is ‘too stark’ and ‘does not reflect the nuances distinguishing one from the other’. This represents the artificialness of a restrictive interpretation of ‘national origin’ under ICERD as it does not take into account all the circumstances of which could have led to absurdity akin to this case.
Secondly, Judge Bhandari considered that ICERD is perfectly suited and ready to adopt a broad interpretation of ‘national origin’ as opposed to the majority’s position. The distinction of citizens and non-citizens in paragraph 2 and the exclusion of any particular nationality in paragraph 3 of Article 1 ICERD do not necessarily mean States can make broad and unqualified distinctions to be drawn between citizens and non-citizens. Judge Bhandari examined that Article 1, paragraph 2 merely establishes an exception to the broader principle in Article 1, paragraph 1 to distinguish between citizens and non-citizens. Nevertheless, this exception is limited by the object and purpose of ICERD - to eliminate racial discrimination in all its forms and manifestations. Thus, permitting States to propose broad and unqualified restrictions is contrary to ICERD’s object and purpose. This is further supported by Article 1, paragraph 3 where treatment of non-citizens should not discriminate any particular nationality.
Moreover, Judge Bhandari believed that the majority did not sufficiently address the relevance of the CERD’s General Recommendation XXX as the Judgment did not provide compelling reason as to why it chose to depart from the authority in Ahmadou Sadio Diallo. CERD is an independent body established for the purpose of supervising the application of ICERD and has offered consistent interpretations of ICERD by highly qualified publicists in the field. The Court has in past case law acknowledged the need for the impugned measure to be proportionate to the achievement of a legitimate aim and the General Recommendation XXX upheld the principle, hence there is no apparent reason, by Judge Bhandari’s view, to disregard its application for this case. A similar proposition is made by Judge Robinson that the CERD’s position is correct and consistent with other treaty supervisory bodies and regional human rights courts. He believed that the UAE is open to enact measures distinguishing between UAE citizens and the citizens of other States - including Qatar - provided that the measures were proportionate in achieving the aim which is legitimate.
On the UAE’s second preliminary objection
Judge Sebutinde maintained that the preconditions in Article 22, ICERD are acting alternatively and not cumulatively. The wording of Article 22, ICERD does not expressly require the exhaustion of all ICERD procedures before the party can take the case to the Court. Thus, she concluded that there is no restriction on Qatar pursuing the two procedures (i.e. the negotiation process in CERD which results in the creation of the Conciliation Commission and the legal proceedings before the Court) concurrently and, accordingly, the UAE’s second preliminary objection should be rejected.
On Qatar’s indirect discrimination claim
In relation to Qatar’s third claim on indirect discrimination, Judge Bhandari concluded that ICERD encompasses discrimination against a particular group of non-nationals on the basis of their nationality, and as such UAE’s measures against Qatar is capable of falling within ICERD’s scope. He suggested that the word ‘all Qatari residents and visitors’ in the impugned measures is broad enough to include not only Qatari nationals but also people of Qatari ‘national origin’. It would have been treated differently if the measures were to only affect Qatari nationals. Furthermore, in light of the jus sanguinis model of acquisition of nationality in Qatar, Qatar’s indirect discrimination claim would have been successful, in particular on the additional measures made by the UAE for the anti-Qatari propaganda and adverse media coverage.
Judge Robinson, however, took a slightly different position reaching the same conclusion as with Judge Bhandari. He suggested that although the UAE’s measures do not on the surface refer to persons of Qatari national origin, yet by their effect they directly implicate people of Qatari national origin, hence constituting indirect discrimination against Qatar capable of falling within the scope of ICERD. He agreed with Qatar’s arguments that because of cultural links with Qatar, Qataris are being discriminated by the measures on the basis of their national origin. He further opined that the term ‘indirect discrimination’ used in the Judgment is misleading for 4 reasons. Firstly, There is nothing indirect about the way the measures by their effect implicate persons of Qatari national origin. Secondly, it is common for States to exercise the kind of treatment described by Qatar as indirect discrimination. Thirdly, the majority seemed to suggest that indirect discrimination is inferior to direct discrimination and thus generating a tendency to undervalue indirect discrimination, as seen in paragraph 112 of the Judgment on ‘collateral or secondary effects’ of the measures. Lastly, indirect discrimination is termed by him as ‘frequently disguised discrimination’ and difficult to identify its presence due to the restrictions not being expressly mentioned on racial or other grounds.
Judge Iwasawa also cast doubt on the majority’s position on Qatar’s third claim albeit a part of them. While he affirmed strongly that his opinion should not be interpreted as prejudging on the findings of the Court, he believed that if the measures were proven to have an ‘unjustifiable disproportionate prejudicial impact on an identifiable group distinguished by national origin’, racial discrimination on the basis of indirect discrimination could well be constituted.
In the end, the Judgment has bore little significance in light of several reconciliation processes to normalise ties with Qatar from the Arab and Gulf countries. However, the Judgment, as emphasised by Judge ad hoc Daudet, does not justify the actions taken by the UAE against Qatar, which he believed that several human rights violations were committed contrary to international conventions. Nationality, though interchangeable in the legal sense, carries strong correlation with national origin. It is submitted that in an event of a claim of racial discrimination on the ground of national origin, the applicant will have strong evidence against the respondent if the respondent’s impugned measures are disproportionate in achieving the aim and the aim is illegitimate which by effect has constituted racial discrimination under ICERD, and the applicant adopts a jus sanguinis model in their nationality law which confers a substantial amount of immutability of national origin. This case poses an interesting albeit unsettled path of rediscovering what considers to be part of a person’s national identity.
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), ICJ Reports 2010 (II), p 664, para 66
Al Jazeera. (2017). Qatar: No justification for cutting diplomatic ties. Retrieved form: https://www.aljazeera.com/news/2017/6/5/qatar-no-justification-for-cutting-diplomatic-ties
The Association Press. (2017). List of demands on Qatar by Saudi Arabia, other Arab nations. Retrieved from: https://apnews.com/article/bahrain-qatar-iran-saudi-arabia-united-arab-emirates-3a58461737c44ad58047562e48f46e06
Committee on the Elimination of Racial Discrimination. (2019). Admissibility of the Inter-state communication submitted by Qatar against the United Arab Emirates CERD/C/99/4. Retrieved from: https://www.ohchr.org/Documents/HRBodies/CERD/CERD-C-99-4.pdf
Holland, S. and El Yaakoubi, A. (2021). Breakthrough reached in Gulf dispute with Qatar - senior Trump official. Retrieved from : https://www.reuters.com/article/gulf-qatar-usa-int/breakthrough-reached-in-gulf-dispute-with-qatar-senior-trump-administration-official-idUSKBN299252
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004(I), Advisory Opinion, pp 179-80, paras 109-12
Middle East Eye. (2017). UAE outlaws sympathy for Qatar on social media. Retrieved from: https://www.middleeasteye.net/news/uae-outlaws-sympathy-qatar-social-media
See, inter alia, judgments made by the Court under Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India, Pakistan and the United Kingdom), Judgment (Oct 5, 2016) and Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia), Judgment (Apr 1, 2011)
See, inter alia, the United Kingdom’s Equality Act 2010 Employment Statutory Code of Practice, paras 2.38, 2.43-2.49 made a distinction between nationality and national origin.
The National. (2017). UAE Ministry of Foreign Affairs statement on Qatar ties. Retrieved from: https://www.thenationalnews.com/world/uae-ministry-of-foreign-affairs-statement-on-qatar-ties-1.637077