A. Factual background

26. On 5 June 2017, the UAE issued a statement (hereinafter the “5 June 2017 statement”) which provided, in relevant part, that

1. 2. Preventing Qatari nationals from entering the UAE or crossing its point of entry, giving Qatari residents and visitors in the UAE 14 days to leave the country for precautionary security reasons. The UAE nationals are likewise banned from traveling to or staying in Qatar or transiting through its territories.”

The Gulf Cooperation Council (hereinafter the “GCC”) is an intergovernmental political and economic union of which Qatar and the UAE were founding members in 1981, along with the Kingdom of Bahrain, the State of Kuwait, the Sultanate of Oman and the Kingdom of Saudi Arabia.

27. In addition, the 5 June 2017 statement announced the severance of diplomatic relations with Qatar, in support of actions taken by the Kingdom of Bahrain and the Kingdom of Saudi Arabia, giving Qatari diplomats 48 hours to leave the UAE. It also proclaimed the “[c]losure of UAE airspace and seaports for all Qataris in 24 hours and banning [of] all Qatari means of transportation, coming to or leaving the UAE, from crossing, entering or leaving the UAE territories”.

28. The 5 June 2017 statement explained:

29. According to an announcement posted on the website of the Ministry of Foreign Affairs and International Co-operation of the UAE on 11 June 2017, the President of the UAE had “instructed the authorities concerned to take into consideration the humanitarian circumstances of Emirati-Qatari joint families”. The announcement further provided that “the Ministry of the Interior ha[d] set up a telephone line . . . to receive such cases and take appropriate measures to help them”. In a statement dated 5 July 2018, the Ministry of Foreign Affairs and International Co-operation of the UAE specified that “[s]ince its announcement on June 5, 2017 . . . the UAE has instituted a requirement for all Qatari citizens overseas to obtain prior permission for entry into the UAE. Permission may be granted for a limited-duration period, at the discretion of the UAE [G]overnment.” The statement added that

30. The UAE took certain additional measures relating to Qatari media and speech in support of Qatar. In this regard, on 6 June 2017, the Attorney General of the UAE issued a statement indicating that expressions of sympathy for the State of Qatar or objections to the measures taken by the UAE against the Qatari Government were considered crimes punishable by imprisonment and a fine. The UAE blocked several websites operated by Qatari companies, including those run by Al Jazeera Media Network. On 6 July 2017, the Abu Dhabi Department of Economic Development issued a circular prohibiting the broadcasting of certain television channels operated by Qatari companies.

31. On 8 March 2018, Qatar deposited a communication with the Committee on the Elimination of Racial Discrimination (hereinafter the “CERD Committee”) under Article 11 of the Convention, requesting that the UAE take all necessary steps to end the measures enacted and implemented since 5 June 2017. According to Article 11, paragraph 1, of CERD, “[i]f a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee”. The UAE, through its responses dated 29 November 2018, 14 January 2019 and 19 March 2019, requested “the Committee to dismiss Qatar's Article 11 Communication for lack [of] jurisdiction and/or lack of admissibility”.

32. On 11 June 2018, Qatar filed an Application in the Registry of the Court instituting the present proceedings (see paragraph 1 above).

33. In its decision on jurisdiction with regard to Qatar's inter-State communication, dated 27 August 2019, the CERD Committee concluded that “it ha[d] jurisdiction to examine the exceptions of inadmissibility raised by the Respondent State” (Decision on the jurisdiction of the Committee over the inter-State communication submitted by Qatar against the UAE dated 27 August 2019, United Nations, doc. CERD/C/99/3, para. 60). In its decision on the admissibility of the inter-State communication, also dated 27 August 2019, the CERD Committee concluded as follows:

34. By a Note Verbale dated 27 April 2020, addressed by the Permanent Mission of the UAE in Geneva to the Office of the High Commissioner for Human Rights, the Permanent Mission “note[d] with appreciation the [Office's] Note Verbale of 9 April 2020 advising that the ad hoc Conciliation Commission has been appointed by the Chair of the Committee, and has been effective since 1 March 2020”.

B. The jurisdictional basis invoked and the preliminary objections raised

35. Qatar asserts that the Court has jurisdiction over its Application pursuant to Article 22 of CERD, which provides:

36. Qatar and the UAE are parties to CERD. Qatar acceded to this Convention on 22 July 1976 without entering any reservation. The UAE did so on 20 June 1974 without entering any reservation relevant to the present proceedings.

37. Qatar contends that there is a dispute between the Parties with respect to the interpretation and application of CERD and that the Parties have been unable to settle this dispute despite Qatar's attempts to negotiate with the UAE.

38. At the present stage of these proceedings, the UAE asks the Court to adjudge and declare that the Court lacks jurisdiction to address the claims brought by Qatar on the basis of two preliminary objections. In its first preliminary objection, the UAE maintains that the Court lacks jurisdiction ratione materiae over the dispute between the Parties because the alleged acts do not fall within the scope of CERD. In its second preliminary objection, the UAE asserts that Qatar failed to satisfy the procedural preconditions of Article 22 of CERD.

39. The Court notes that, in its written pleadings, the UAE had also included an objection to admissibility on the ground that Qatar's claims constitute an abuse of process. However, during the oral proceedings, counsel for the UAE stated that it was not pursuing an allegation of abuse of process at this stage of the proceedings.

40. Before addressing the preliminary objections of the UAE, the Court will determine the subject-matter of the dispute.

A. The question whether the term “national origin” encompasses current nationality

74. Qatar is of the view that the term “national origin”, in the definition of racial discrimination in Article 1, paragraph 1, of the Convention, encompasses current nationality and that the measures of which Qatar complains thus fall within the scope of CERD. The UAE argues that the term “national origin” does not include current nationality and that the Convention does not prohibit differentiation based on the current nationality of Qatari citizens, as complained of by Qatar in this case. Thus, the Parties hold opposing views on the meaning and scope of the term “national origin” in Article 1, paragraph 1, of the Convention, which reads:

*  *

75. In order to determine its jurisdiction ratione materiae in this case, the Court will interpret CERD and specifically the term “national origin” in Article 1, paragraph 1, thereof by applying the rules on treaty interpretation enshrined in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (hereinafter the “Vienna Convention”). Although that Convention is not in force between the Parties and is not, in any event, applicable to treaties concluded before it entered into force, such as CERD, it is well established that Articles 31 and 32 of the Vienna Convention reflect rules of customary international law (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 598, para. 106; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), pp. 320–321, para. 91; Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 116, para. 33).

76. The Court will interpret the term “national origin” by reference, first, to the elements set out in Article 31 of the Vienna Convention, which states the general rule of treaty interpretation. Only then will the Court turn to the supplementary means of interpretation provided for in Article 32 in order to confirm the meaning resulting from that process, or to remove ambiguity or obscurity, or to avoid a manifestly absurd or unreasonable result (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), p. 321, para. 91; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 109–110, para. 160).

77. The Court will also examine the practice of the CERD Committee and of regional human rights courts. In their pleadings, the Parties expressed different opinions on that practice in relation to the interpretation of the term “national origin” in Article 1, paragraph 1, of the Convention. The Court recalls that, in its jurisprudence, it has taken into account the practice of committees established under human rights conventions, as well as the practice of regional human rights courts, in so far as this was relevant for the purposes of interpretation (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, I.C.J. Reports 2012 (I), p. 331, para. 13; pp. 334–335, para. 24; p. 337, para. 33, and pp. 339–340, para. 40; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), pp. 457–458, para. 101; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), pp. 663–664, para. 66; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 179, para. 109, and pp. 192–193, para. 136).

B. The question whether the measures imposed by the UAE on certain Qatari media corporations come within the scope of the Convention

106. In its second claim, Qatar complains that the measures imposed on certain media corporations in the UAE have infringed the right to freedom of opinion and expression of Qataris. According to the Applicant, the UAE has blocked access to news websites and television stations operated by Qatari corporations, including Al Jazeera. In particular, Qatar submits that the effect of closing down Qatari media channels has been to silence sources of independent information that might have mitigated the racially discriminatory messages disseminated as part of anti-Qatari hate speech and propaganda. The Applicant submits that the block on Qatari media has not only directly targeted Qatari corporations, but has also infringed the freedom of expression of Qatari ideas and culture and contributed to the climate of fear experienced by Qataris as a result of their Qatari identity being targeted.

107. The UAE considers that the Applicant's claims in respect of Qatari media corporations do not fall within the scope of the Convention. It submits that corporations are not covered by the Convention, which applies only to natural persons. The UAE further submits that while corporations may have a nationality, they do not have a national origin. In respect of the allegations made by Qatar, the UAE argues that it has a regulatory framework for media activities, which provides for certain content restrictions that allow the authorities to block the websites of media corporations. It is pursuant to this regulatory framework, which applies to all media corporations operating in the UAE, that the Respondent has blocked certain websites of Qatari media corporations.

*  *

108. For the present purposes, the Court will examine only whether the measures concerning certain Qatari media corporations, which according to Qatar have been imposed in a racially discriminatory manner, fall within the scope of the Convention. As to the alleged “indirect discrimination” resulting from the effect of the media block on persons of Qatari national origin, the Court will examine that aspect in its analysis of Qatar's third claim. The Court notes that the Convention concerns only individuals or groups of individuals. This is clear from the various substantive provisions of CERD, which refer to “certain racial or ethnic groups or individuals” (Article 1, paragraph 4), “race or group of persons” (Article 4 (a)), or “individuals or groups of individuals” (Article 14, paragraph 1), as well as its Preamble which refers to racial “discrimination between human beings”. While under Article 2, paragraph 1 (a), of the Convention, “[e]ach State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions”, the Court considers that this reference to “institutions” does not include media corporations such as those in the present case. Read in its context and in the light of the object and purpose of the Convention, the term “institutions” refers to collective bodies or associations, which represent individuals or groups of individuals. Thus, the Court concludes that Qatar's second claim relating to Qatari media corporations does not fall within the scope of the Convention.

C. The question whether the measures that Qatar characterizes as “indirect discrimination” against persons of Qatari national origin fall within the scope of the Convention

109. Qatar submits that the “expulsion order” and “travel bans”, as well as other measures taken by the UAE, have had the purpose and effect of discriminating “indirectly” against persons of Qatari national origin in the historical-cultural sense, namely persons of Qatari birth and heritage, including their spouses, their children and persons otherwise linked to Qatar. According to Qatar, a measure may be considered as “based on” one of the grounds listed in Article 1 if, by its effect, it implicates a protected group. It adds that the Convention prohibits both direct discrimination, where a measure expressly distinguishes on the basis of one of the grounds of racial discrimination, and “indirect discrimination”, where a measure results in such a distinction by its effect. As part of the latter claim, Qatar complains of official statements critical of Qatar, including the 6 June 2017 statement of the Attorney General of the UAE, which mentioned criminal penalties for any expression of sympathy towards Qatar. Qatar adds that the UAE has failed to comply with CERD by encouraging and failing to supress anti-Qatari hate speech and propaganda. The Applicant emphasizes that its complaints are based not on a minimal difference in the treatment of Qatari citizens in the area of immigration controls, but on comprehensive, serious and co-ordinated discriminatory acts resulting in discrimination against persons of Qatari national origin in the historical-cultural sense, in particular on the basis of their traditions, culture, accent or dress.

110. According to the UAE, there is no question of “indirect” racial discrimination in the present case. It adds that this is not how Qatar presented its complaints in its Application instituting proceedings or in its offer to negotiate dated 25 April 2018, which concerned allegedly discriminatory policies directed at Qatari citizens and companies on the sole basis of their Qatari nationality in violation of CERD. It further states that the notion of “indirect discrimination”, in the context of the present Convention, is more specific than in other human rights treaties, since it refers solely to measures which are not discriminatory at face value but are discriminatory in fact and effect. The UAE observes that the 6 June 2017 statement by its Attorney General was made in the context of existing legislation, i.e. Federal Decree-Law No. 5 on Combating Cybercrimes dated 13 August 2012, and that there was no criminalizing of sympathy for Qatar. The UAE submits that the various allegations relating to its failure to suppress statements critical of Qatar or the actions of its Government, even if they were true, do not fall within the scope ratione materiae of the Convention since it does not constitute racial discrimination on the grounds of race, colour, descent, or national or ethnic origin.

*  *

111. The Court recalls that it has already found that the “expulsion order” and “travel bans” of which Qatar complains as part of its first claim do not fall within the scope of CERD, since these measures are based on the current nationality of Qatari citizens, and that such differentiation is not covered by the term “national origin” in Article 1, paragraph 1, of the Convention (see paragraph 105 above). The Court will now turn to the question whether these and any other measures as alleged by Qatar are capable of falling within the scope of the Convention, if, by their purpose or effect, they result in racial discrimination against certain persons on the basis of their Qatari national origin.

112. The Court first observes that, according to the definition of racial discrimination in Article 1, paragraph 1, of CERD, a restriction may constitute racial discrimination if it “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”. Thus, the Convention prohibits all forms and manifestations of racial discrimination, whether arising from the purpose of a given restriction or from its effect. In the present case, while the measures based on current Qatari nationality may have collateral or secondary effects on persons born in Qatar or of Qatari parents, or on family members of Qatari citizens residing in the UAE, this does not constitute racial discrimination within the meaning of the Convention. In the Court's view, the various measures of which Qatar complains do not, either by their purpose or by their effect, give rise to racial discrimination against Qataris as a distinct social group on the basis of their national origin. The Court further observes that declarations criticizing a State or its policies cannot be characterized as racial discrimination within the meaning of CERD. Thus, the Court concludes that, even if the measures of which Qatar complains in support of its “indirect discrimination” claim were to be proven on the facts, they are not capable of constituting racial discrimination within the meaning of the Convention.

113. It follows from the above that the Court does not have jurisdiction ratione materiae to entertain Qatar's third claim, since the measures complained of therein by that State do not entail, either by their purpose or by their effect, racial discrimination within the meaning of Article 1, paragraph 1, of the Convention.

D. General conclusion

114. In light of the above, the Court concludes that the first preliminary objection raised by the UAE must be upheld. Having found that it does not have jurisdiction ratione materiae in the present case under Article 22 of the Convention, the Court does not consider it necessary to examine the second preliminary objection raised by the UAE. In accordance with its jurisprudence, when its jurisdiction is challenged on diverse grounds, the Court is “free to base its decision on the ground which in its judgment is more direct and conclusive” (Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 24, para. 26; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 17, para. 40; Certain Norwegian Loans (France v. Norway), Judgment, I.C.J. Reports 1957, p. 25).

*

*  *

115. For these reasons,

The Court,

(1) By eleven votes to six,

Upholds the first preliminary objection raised by the United Arab Emirates;

in favour: Vice-President Xue; Judges Tomka, Abraham, Bennouna, Donoghue, Gaja, Crawford, Gevorgian, Salam; Judges ad hoc Cot, Daudet;

against: President Yusuf; Judges Cançado Trindade, Sebutinde, Bhandari, Robinson, Iwasawa;

(2) By eleven votes to six,

Finds that it has no jurisdiction to entertain the Application filed by the State of Qatar on 11 June 2018.

in favour: Vice-President Xue; Judges Tomka, Abraham, Bennouna, Donoghue, Gaja, Crawford, Gevorgian, Salam; Judges ad hoc Cot, Daudet;

against: President Yusuf; Judges Cançado Trindade, Sebutinde, Bhandari, Robinson, Iwasawa.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this fourth day of February, two thousand and twenty-one, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the State of Qatar and the Government of the United Arab Emirates, respectively.

(Signed)  Abdulqawi Ahmed YUSUF,

President.

(Signed)  Philippe GAUTIER,

Registrar.

President YUSUF appends a declaration to the Judgment of the Court; Judges SEBUTINDE, BHANDARI and ROBINSON append dissenting opinions to the Judgment of the Court; Judge IWASAWA appends a separate opinion to the Judgment of the Court; Judge ad hoc DAUDET appends a declaration to the Judgment of the Court.

(Initialled)  A.A.Y.

(Initialled)  Ph.G.

_______________

A. Qatar's claims and requests

3. Qatar in its own right and as parens patriae of its citizens, respectfully requests the Court to adjudge and declare that the UAE through its State organs, State agents and other persons and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control, has violated its obligations under Articles 2, 4, 5, 6 and 7 of the CERD by taking, inter alia, the following unlawful actions:

1. (a) Expelling on a collective basis, all Qataris from, and prohibiting the entry of all Qataris into, the UAE on the basis of their national origin;

2. (b) Violating other fundamental rights, including the rights to marriage and choice of spouse, freedom of opinion and expression, public health and medical care, education and training, property, work, participation in cultural activities, and equal treatment before tribunals;

3. (c) Failing to condemn and instead encouraging racial hatred against Qatar and Qataris and failing to take measures that aim to combat prejudices, including by, inter alia, criminalizing the expression of sympathy towards Qatar and Qataris; allowing, promoting, and financing an international anti-Qatar public and social-media campaign; silencing Qatari media; and calling for physical attacks on Qatari entities; and

4. (d) Failing to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions.Footnote ¹

4. Accordingly, Qatar respectfully requests the Court to order the UAE to take all steps necessary to comply with its obligations under the CERD and, inter alia:

1. (a) Immediately cease and revoke the Discriminatory Measures, including but not limited to the directives against “sympathizing” with Qataris, and any other national laws that discriminate de jure or de facto against Qataris on the basis of their national origin;

2. (b) Immediately cease all other measures that incite discrimination (including media campaigns and supporting others to propagate discriminatory messages) and criminalize such measures;

3. (c) Comply with its obligations under the CERD to condemn publicly racial discrimination against Qataris, pursue a policy of eliminating racial discrimination, and adopt measures to combat such prejudice;

4. (d) Refrain from taking any further measures that would discriminate against Qataris within its jurisdiction or control;

5. (e) Restore rights of Qataris to, inter alia, marriage and choice of spouse, freedom of opinion and expression, public health and medical care, education and training, property, work, participation in cultural activities, and equal treatment before tribunals, and put in place measures to ensure those rights are respected;

6. (f) Provide assurances and guarantees of non-repetition of the UAE's illegal conduct; and

7. (g) Make full reparation, including compensation, for the harm suffered as a result of the UAE's actions in violation of the CERDFootnote ².

5. In its Memorial, Qatar in its own right and as parens patriae of its citizens, respectfully requests the Court to adjudge and declare that the UAE, by the acts and omissions of its organs, agents, persons, and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control, is responsible for violating its obligations under Articles 2, 4, 5, 6 and 7 of the CERD, including by:

1. (a) Expelling, on a collective basis, all Qataris from the UAE;

2. (b) Applying the Absolute Ban and Modified Travel Ban in violation of fundamental rights that must be guaranteed equally to all under the CERD, regardless of national origin, including the rights to family, freedom of opinion and expression, education and training, property, work, and equal treatment before tribunals;

3. (c) Engaging in, sponsoring, supporting, and otherwise encouraging racial discrimination, including racially discriminatory incitement against Qataris, most importantly by criminalizing “sympathy” with Qatar and orchestrating, funding, and actively promoting a campaign of hatred against Qatar and Qataris, and thereby failing to nullify laws and regulations that have the effect of creating or perpetuating racial discrimination, to take “all appropriate” measures to combat the spread of prejudice and negative stereotypes, and to promote tolerance, understanding and friendship; and

4. (d) Failing to provide access to effective protection and remedies to Qataris to seek redress against acts of racial discrimination under the CERD through UAE tribunals or institutions, including the right to seek reparation.

6. Qatar further requests the Court to adjudge and declare that the UAE has violated the Court's Order on Provisional Measures of 23 July 2018; and that the UAE is obligated to cease its ongoing violations, make full reparations for all material and moral damage caused by its internationally wrongful acts and omissions under the CERD, and offer assurances and guarantees of non-repetition.

7. Accordingly Qatar requests the Court to order that the UAE:

1. (a) Immediately cease its ongoing internationally wrongful acts and omissions in contravention of Articles 2 (1), 4, 5, 6 and 7 of the CERD;

2. (b) Provide full reparation for the harm caused by its actions, including (i) restitution by lifting the ongoing Modified Travel Ban as it applies to Qataris collectively based on their national origin; (ii) financial compensation for the material and moral damage suffered by Qatar and Qataris, in an amount to be quantified in a separate phase of these proceedings; and (iii) satisfaction in the forms of a declaration of wrongfulness and an apology to Qatar and the Qatari people, as requested; and

3. (c) Provide Qatar with assurances and guarantees of non-repetition in written form.

B. The preliminary objections of the UAE

8. The UAE raised three preliminary objections against the jurisdiction of the Court and the admissibility of Qatar's claims, namely that:

1. (a) The dispute between the Parties falls outside the scope ratione materiae of the CERD since the measures of the UAE were directed at Qatari citizens on the basis of their “nationality” and not “national origin”Footnote ³;

2. (b) Qatar has not fulfilled the procedural preconditions of negotiation and the Committee on the Elimination of Racial Discrimination (hereinafter the “CERD Committee”) procedures prescribed in Articles 11 to 13 of the CERD before resorting to judicial settlement by the Court, as required by Article 22 of the CERDFootnote ⁴; and

3. (c) Qatar's initiation of parallel proceedings before the Court in respect of the same dispute whilst the Article 11 procedure was pending before the CERD Committee renders Qatar's Application inadmissibleFootnote ⁵.

A. The subject-matter of the dispute between Qatar and the UAE

11. Article 40, paragraph 1, of the Statute of the Court, and Article 38, paragraph 1, of the Rules of Court require an applicant to indicate the “subject of the dispute” and to specify the “precise nature of the claim”Footnote ⁶. Furthermore, it is for the Court itself to determine, on an objective basis, the subject-matter of the dispute, isolating the real issue in the case and identifying the object of the claimFootnote ⁷. The Court does this by examining the dispute as formulated in the application, including the basis that the applicant identifies as the basis of jurisdiction, as well as the written and oral pleadings of the partiesFootnote ⁸.

12. Taking into account the dispute as formulated in Qatar's Application, the object of Qatar's claims, the jurisdictional basis upon which those claims are based, and the written and oral pleadings of the Parties, the subject-matter of the dispute is whether the UAE by taking the measures that it did on 7 June 2017 and subsequently, against Qatar and Qataris, violated its obligations under the CERD.

B. Whether the dispute falls within the scope ratione materiae of the CERD

13. In order to determine whether or not the dispute in the present case concerns the interpretation or application of the CERD, the Court must determine whether the acts complained of by Qatar (namely, the measures taken by the UAE on 5 June 2017 against Qataris living in the UAE) fall within the scope ratione materiae of Article 1, paragraph 1, of the CERD; or alternatively, whether those acts fall outside the scope of the CERD by virtue of the exceptions stipulated in Article 1 paragraphs 2 or 3, as argued by the UAE.

14. The Court has stated in Oil Platforms Footnote ⁹ and in Certain Iranian Assets Footnote ¹⁰ that, in order to determine the Court's jurisdiction ratione materiae under a jurisdictional clause concerning disputes relating to the interpretation or application of a treaty, it is necessary to ascertain whether the acts of which the applicant complains “fall within the provisions” of the treaty containing the clause. At the jurisdictional stage of the proceedings, a detailed examination by the Court of the alleged wrongful acts of the respondent or of the plausibility of the applicant's claims is not warranted. The Court's task, as reflected in Article 79 of the Rules of Court, is to consider the questions of law and fact that are relevant to the objection to its jurisdictionFootnote ¹¹.

15. In the present case, the Court has already stated in its Provisional Measures Order of 23 July 2018 that:

At this stage, I see no reason for the Court to depart from its earlier position.

C. Alternatively, whether Qatar's claims fall outside the scope of the CERD by virtue of the exceptions contemplated in Article 1, paragraphs 2 or 3

16. Article 1 (1) of the CERD defines “racial discrimination” to mean:

17. Article 1 (2) of the CERD provides that the Convention:

18. Article 1 (3) of the CERD provides that:

19. The Court has stated in Ukraine v. Russia that in order to determine whether it has jurisdiction ratione materiae under the CERD, it does not need to satisfy itself that the measures of which the applicant complains actually constitute “racial discrimination” within the meaning of Article 1, paragraph 1, of the CERD; nor does the Court need to establish if and to what extent, certain acts may be covered by Article 1, paragraphs 2 and 3, of the CERD. Both determinations concern issues of fact, largely depending on evidence regarding the purpose or effect of the measures alleged by the applicant, and are thus properly a matter for the merits, should the case proceed to that stage. At the current stage of the proceedings, the Court only needs to ascertain whether the measures complained of by Qatar target a protected group on the basis of national or ethnic origin and whether those measures are capable of negatively affecting the enjoyment of rights protected under the ConventionFootnote ¹³.

20. In the present case, Qatar maintains that Qataris are a protected people of a distinct historical-cultural national origin and has submitted expert evidence to support this contention, which the UAE has not rebuttedFootnote ¹⁴. Qatar further maintains that the measures taken by the Respondent against its nationals “had the purpose and effect” of racial discrimination of Qatari nationals within the meaning of Article 1, paragraph 1, of the CERD. This evidence should, of course, be examined and verified on the merits, rather than at this jurisdictional stage of the proceedings. In my view, there is a thin line between “Qatari national origin” and “Qatari nationality or citizenship” and this line is particularly blurred by the circumstances of the case. As earlier stated, the question of whether or not the measures taken by the UAE against Qatar and Qataris on 5 June 2017 had “the purpose or effect of racial discrimination” within the meaning of Article 1, paragraph 1, of the CERD, is a delicate and complex one that can only be determined after a detailed examination of the evidence and arguments of the Parties during the merits stage. In the present Judgment, the majority simply carried out an academic discussion of the terms “current nationality” and “national origin” but has clearly not examined the detailed evidence adduced by the Applicant in support of its claim of “indirect discrimination” before reaching the conclusion in paragraphs 113 and 114 of the Judgment.

21. At an earlier stage of these proceedings, the Court, when examining the plausibility of the rights claimed by Qatar, noted that:

22. At this jurisdictional stage of the proceedings, I see no reason to depart from the Court's earlier finding that at least some of the acts of which Qatar complains are capable of constituting acts of racial discrimination as defined by the Convention. Qatar's claims therefore fall within the scope ratione materiae of CERD. In this regard, I am of the considered view that the approach of the majority whereby the jurisdiction ratione materiae of the Court turns on a theoretical definition or analysis of the term “national origin” without taking into account the facts and evidence adduced by Qatar in support of its claims (see paragraphs 75 to 105) is not in the interests of justice. Similarly, the issues discussed in paragraphs 109 to 110 pertaining to the measures that Qatar characterizes as “indirect discrimination” are issues that should have been properly examined during the merits stage in light of the facts, evidence and arguments of the Parties, before drawing the conclusion that these claims fall outside the scope ratione materiae of the Court's jurisdiction.

23. Regarding the UAE's preliminary objection based on its argument that Qatar's claims fall under the exceptions stipulated under Article 1 (2) and therefore outside the scope ratione materiae of the CERD, I am of the considered view that this objection does not possess an exclusively preliminary character and can only be properly determined after a detailed examination of the evidence during the merits stage.

24. This brings me to the second preliminary objection of the UAE, namely that Qatar did not fulfil the procedural requirements of Article 22 of the CERD before seising the Court.

D. Whether Qatar fulfilled the procedural requirements of Article 22 of the CERD or, alternatively, whether the Parties agreed to another mode of settling their dispute, before seising the Court

25. In order to answer this question, the Court must address whether Qatar satisfied one of the procedural requirements stipulated in Article 22 before seising the Court. Alternatively, in the event that Qatar chose more than one mode of dispute settlement (namely, negotiations, CERD procedures and judicial settlement), the Court must determine whether the Applicant is obliged to exhaust negotiations and the CERD procedures before seising the Court.

26. Both Parties agree that the Court's jurisdiction pursuant to Article 22 of the CERD is limited to disputes “not settled by negotiation or by the procedures expressly provided for in [the] Convention”. The Parties also agree that they have not agreed to “another mode of [dispute] settlement”. It is settled jurisprudence in Ukraine v. Russia that the preconditions referred to in Article 22 are in the alternative and are not cumulativeFootnote ¹⁶. The Court in that case stated as follows:

27. In the present case, the Parties did pursue the procedures before the CERD Committee and the Conciliation Commission pursuant to Articles 11 to 13 of the CERD. The question is therefore whether Qatar should have exhausted the preconditions of bilateral negotiations and of conciliation before the CERD Committee, before resorting to judicial settlement.

28. It will also be recalled that Qatar founded the Court's jurisdiction on the basis of the failed bilateral negotiations envisaged under Article 22, rather than on the exhaustion of the CERD procedures initiated by Qatar on 8 March 2018Footnote ¹⁷ pursuant to Article 11. Regarding the precondition of bilateral negotiations, the Court has in the present case already found in its Provisional Measures Order of 23 July 2018 as follows:

29. Qatar clearly satisfied the precondition of bilateral negotiation before seising the Court. In view of the above, the Court should determine whether in fact Qatar was obliged to exhaust the other procedures expressly provided for in the Convention before seising the Court.

E. Whether Qatar was obligated to exhaust the Conciliation Commission procedures before seising the Court

30. It is not disputed that Qatar referred its claims against the UAE to the CERD Committee before seising the Court. The CERD Committee in turn referred the Parties’ dispute to the Conciliation Commission and to date the processes before that Commission are ongoing and have not been concluded. Both Parties claim that they are fully engaged in those processes “in good faith”. Unlike the bilateral negotiations referred to in the earlier part of Article 22 of the CERD, the procedures before the Conciliation Commission are tripartite and conciliatory. In its oral arguments, the UAE maintained that Qatar was obligated to first exhaust the processes before the Conciliation Commission before seising the Court. Citing the principles of lis pendens Footnote ¹⁹ and electa una via Footnote ²⁰, the UAE argues that there remains the possibility of the two processes (conciliation and judicial settlement) yielding contradictory outcomes, and that therefore Qatar should have waited “to determine whether or not the Conciliation Commission procedures had resulted in a settlement of the dispute” before pursuing judicial settlementFootnote ²¹.

31. The wording of Article 22 of the CERD does not expressly require a party to exhaust the CERD procedures before that party can unilaterally seise the Court. The wording of that Article cannot be compared, for example, to Article IV of the Pact of Bogotá, which provides that: “Once any pacific procedure had been initiated, whether by agreement between the parties or in fulfillment of the present Treaty or a previous pact, no other procedure may be commenced until that procedure is concluded.” (Emphasis added.)

32. Both Parties acknowledge that the CERD Committee and the proceedings before the Court have related but fundamentally distinct roles relating to resolving disputes between States parties to the CERD. The Committee's role is conciliatory and recommendatory, while that of the Court is legal and binding. Accordingly, there is nothing incompatible about Qatar pursuing the two procedures in parallel.

33. Furthermore, the Court stated in its Provisional Measures Order of 23 July 2018, regarding the second precondition of “other procedures expressly provided for in the Convention” as follows:

34. In my view therefore, Qatar was not obligated to exhaust the Conciliation Commission processes before seising the Court. I would therefore dismiss the second preliminary objection of the UAE. This brings me to the third preliminary objection of the UAE, namely whether Qatar's claims are inadmissible on grounds of alleged abuse of process by Qatar.

F. Whether Qatar's claims are inadmissible on the grounds that Qatar has committed abuse of process

35. During the oral proceedings the UAE abandoned its third preliminary objection pertaining to “abuse of process.”Footnote ²³ However, according to the Court's well-established jurisprudence, a claim based upon a valid title of jurisdiction cannot be challenged on grounds of “abuse of process” unless the high threshold of “exceptional circumstances” has been met. In my view, Qatar's alleged abuse of process should not be easily assumed in the absence of clear proof of any exceptional circumstances pointing to such abuse. Qatar's claims are admissible and the third preliminary objection should have been rejected.

A. The first claim

5. Article 1 of CERD reads as follows:

1. “1. 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.

2. 2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.

3. 3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship, or naturalization, provided that such provisions do not discriminate against any particular nationality”.

B. The second claim

19. I am in agreement with the finding of the majority that Qatar's claim relating to discrimination against media corporations does not fall within the provisions of the Convention.

C. The third claim

20. According to the Convention, the term “racial discrimination” refers to a restrictive measure that is based on race, colour, descent, or national or ethnic origin, which has the purpose or effect of impairing the enjoyment, on an equal footing, of fundamental human rights. However, as Judge Crawford stated in his declaration in Ukraine v. Russian Federation,

Qatar relies on this analysis by Judge Crawford in order to distinguish between a restrictive measure that is based expressly on one of the protected grounds (direct discrimination) and one that, although not based expressly on one of those grounds, nonetheless directly implicates a group on one of the protected grounds. Translated to the circumstances of this case, Qatar's submission is that although the UAE's measures do not on their face refer to persons of Qatari national origin, as a matter of fact by their effect they directly implicate persons of Qatari national origin. Qatar describes this as indirect discrimination. Although Qatar has framed this part of its case as one of indirect discrimination, in my view, since labels such as “indirect discrimination” are very often misleading, it is better to concentrate on the essence of Qatar's claim.

21. Some comments on indirect discrimination are appropriate. First, the label “indirect discrimination” may be misleading because, for the so-called indirect discrimination to occur, the measures in question must by their effect directly implicate persons in the protected group. In this case, the measures directly implicate persons of Qatari national origin. There is nothing that is indirect in the way the measures by their effect implicate persons of Qatari national origin. Second, the kind of treatment described by Qatar as indirect discrimination occurs frequently in the practice of States. Third, another drawback with the label “indirect discrimination” is that it would seem to suggest or imply that indirect discrimination is inferior to what is called direct discrimination, and for that reason, there may be a tendency to undervalue indirect discrimination. This tendency is evident in paragraph 112 of the Judgment where the majority speaks of “collateral or secondary effects” of the measures. Fourth, the kind of restriction that gives rise to indirect discrimination is frequently disguised discrimination; the discrimination may be difficult to detect because, on its face, the restrictive measure is not based expressly on racial or other grounds.

22. For all these reasons, it is regrettable that the majority did not address Qatar's third claim in a satisfactory manner.

23. The substance of Qatar's third claim is that while the travel ban, the expulsion order and the restrictions on media corporations do not, on their face, purport to discriminate against Qataris on the basis of their national origin — that is, are not based expressly on national origin — by their effect, they constitute discrimination on that basis.

24. It must be emphasized that Qatar's third claim operates independently of its claim that the measures discriminated against Qataris by reason of their nationality; Qatar argues that by reason of their effect the measures also discriminate against Qataris because of their cultural links with Qatar and, therefore, by reason of their Qatari national origin. The examples given by Qatar of how Qataris have been impacted by the measures are a classical illustration of discrimination based on national origin; they show precisely how Qataris were impacted by the measures by reason of their cultural ties with Qatar as a nation. It follows, therefore, that Qatar's third claim, based as it is on the effect of the measures on Qataris as persons of Qataris national origin, is not affected by the majority's finding in paragraph 105 that “the measures complained of by Qatar in the present case as part of its first claim, which are based on the current nationality of its citizens, do not fall within the scope of CERD”. Qatar's third claim is that the measures that are based on national origin, a protected ground in the Convention, fall within the provisions of the Convention.

25. Qatar's examples of how the UAE's measures as a matter of fact directly implicated persons of Qatari national origin on the basis of identification with Qatari national traditions and culture, their dress and accent include the following:

1. (i) “As a general matter, Qatar argues that the measures target and discriminate against ‘Qataris’ as a historical-cultural community and not merely as holders of a Qatari passport. In this regard, Qatar cites the statement of a person, not a Qatari national who had lived in Qatar for over 60 years and who was denied entry into the UAE because, as he stated, ‘the immigration officer saw me as Qatari because of the way I was dressed’; on the other hand, his travel companions who were not wearing traditional Qatari dress were allowed to enter. That person stresses that prior to the measures he had travelled to and from the UAE on many occasions without experiencing any problem at the border.

2. (ii) Another person who identifies completely as Qatari, but is not a Qatari citizen relates that he was subjected to interrogation by the UAE's officials merely because his passport showed that he was born in Qatar.”

There is merit in Qatar's argument that the treatment to which these persons were subjected at the border on the basis of their national origin resulted from the travel ban which targeted Qataris. Consequently, the obligation under the Convention not to discriminate against persons on the basis of their national origin was engaged and the treatment falls within the provisions of the Convention.

26. Despite these clear examples of how the measures discriminate by their effect on persons of Qatari national origin, the majority concluded that they do not constitute racial discrimination within the meaning of the Convention. In paragraph 112 of the Judgment the majority makes a statement of questionable validity. It states that

This finding is questionable because in this part of its case Qatar is not complaining about the measures that are based on current Qatari nationality. As the majority itself noted in paragraph 60 of the Judgment: in setting out Qatar's complaint, Qatar's case in relation to what it describes as indirect discrimination is independent of its complaint about the measures on the basis of nationality; Qatar has made it clear that this part of its case is based on national origin, which is one of the protected grounds in the definition of racial discrimination. The second comment that may be made on this finding relates to the regrettable reference to the “collateral or secondary effects” of the measures. The finding is regrettable because it suggests that what Qatar describes as indirect discrimination is equivalent to what the majority describes as the collateral or secondary effects of the measures. As noted before, the essence of Qatar's third claim is that these measures directly implicate Qataris on the basis of their national origin. There is nothing collateral or secondary about the impact of the measures on Qataris on the basis of their national origin. Moreover, in this statement the majority seems to be referring to the collateral or secondary effects of the measures on persons of Qatari national origin; however, this is not at all clear from its reference to those effects on “persons born in Qatar or of Qatari parents, or on family members of Qatari citizens residing in the UAE”, since that categorization of persons could also refer to persons of Qatari nationality.

27. The majority does not seek to substantiate its finding by way of reason; it proceeds by way of assertion by simply stating that “the various measures of which Qatar complains do not, either by their purpose or their effect, give rise to racial discrimination against Qataris as a distinct social group on the basis of their national origin” (paragraph 112 of the Judgment). It is not clear what the majority means by racial discrimination against Qataris as a “distinct social group”. It certainly could not mean that the majority does not accept that Qataris constitute a distinct social group, since uncontradicted evidence was given by Qatar through its expert, Mr. John Peterson, that Qataris constitute such a group. If the majority accepts that Qataris constitute a distinct social group, then certainly cogent evidence has been provided to illustrate the discriminatory effect of the measures on Qataris as such a group, and therefore, on the basis of their national origin. For what could be more illustrative of the distinctiveness of the social group to which a person belongs than his dress and speech and, if this cultural linkage is exploited for discriminatory reasons as a result of the travel ban, why is that treatment not capable of constituting racial discrimination on the basis of national origin? The majority is silent as to a reason but strong in its oracular declaration that “the measures of which Qatar complains . . . are not capable of constituting racial discrimination within the meaning of the Convention”. In its reasoning, the majority does not even pause to identify and examine the factual circumstances cited by Qatar as giving rise to discrimination by effect on the basis of national origin. If there is an inherent element in these measures that renders them incapable of resulting in discrimination by effect on the basis of national origin, the majority has not identified it.

28. In sum, Qatar's claim that the measures by their effect discriminated against Qataris on the basis of their national origin falls within the provisions of the Convention.

1. The Court has jurisdiction with respect to the interpretation or application of the International Convention on the Elimination of All Forms of Racial Discrimination

22. The present dispute has been brought to the Court pursuant to Article 22 of CERD. According to this clause, the Court's jurisdiction is limited to disputes “with respect to the interpretation or application of this Convention”. In order to determine whether the present dispute is one with respect to the interpretation or application of CERD, the Court needs to examine whether Qatar's claims fall within the scope of CERD (Judgment, paragraph 72). For Qatar's claims to fall within the scope of CERD, the measures of which it complains must be capable of constituting “racial discrimination” within the meaning of CERD. Accordingly, whether the measures at issue are capable of constituting racial discrimination under CERD is critically important in the present case. If they are not, the Court has no jurisdiction, irrespective of whether the same measures could constitute discrimination based on nationality under other rules of international law.

23. Just as it has done before this Court, the UAE raised before the CERD Committee the objection that its dispute with Qatar falls outside the scope ratione materiae of CERD. In accordance with Rule 91 of its Rules of Procedure, the Committee dealt with the preliminary issue of its competence ratione materiae as a question of admissibilityFootnote ¹³. For this Court, however, this objection raises an issue of jurisdiction. If the measures taken by the UAE are not capable of constituting racial discrimination under CERD, the dispute falls outside the jurisdiction ratione materiae of the Court.

24. Article 1, paragraph 1, of CERD defines “racial discrimination” as follows:

25. The definition of “racial discrimination” under this provision has two elements. First, the measures must constitute a distinction, exclusion, restriction or preference which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights. In other words, they must entail differential treatment. Secondly, the differential treatment must be based on one of the prohibited grounds, namely, “race, colour, descent, or national or ethnic origin”.

26. As noted by the Court, it is not disputed that the “expulsion order” and the “travel bans”, as well as the “measures to restrict broadcasting and internet programming by certain Qatari media corporations”, constitute differential treatment (Judgment, paragraphs 57 and 59). It is, however, disputed whether these measures are “based on” one of the grounds listed in Article 1, paragraph 1, of CERD and are thus capable of constituting racial discrimination.

27. In its first preliminary objection, the UAE maintains that the Court lacks jurisdiction ratione materiae over the present dispute because the alleged acts differentiate on the basis of “current nationality” and do not fall within the scope of CERD. Article 1, paragraph 1, of CERD, unlike the non-discrimination provisions of the other human rights instruments discussed above, contains neither a phrase like “such as” before the list of prohibited grounds, nor a catch-all term like “other status”. The wording of Article 1, paragraph 1, therefore clearly indicates that the list of prohibited grounds is exhaustive, and not illustrative. In order for differential treatment to constitute “racial discrimination”, it must be based on one of the specified prohibited grounds: “race, colour, descent, or national or ethnic origin”. “Nationality” is not included in the list. Nonetheless, Qatar argues that the term “national origin” encompasses nationality, including present nationality, while the UAE disagrees. The Court examines this issue in detail and concludes that “national origin” does not encompass current nationality (Judgment, paragraphs 74–105). I agree with this conclusion of the Court. The next section of this opinion will explain my reasoning, including additional reasons to those provided by the Court.

2. “Nationality” and “national origin”

28. The prohibited grounds listed in Article 1, paragraph 1 — “race, colour, descent, or national or ethnic origin” — are inherent, immutable and permanent characteristics of individuals. “National origin” is not listed independently, but together with “ethnic origin” as “national or ethnic origin”. Thus, the text indicates a close relationship between the terms “national origin” and “ethnic origin”. Read in its ordinary meaning in this context, “national origin” can be understood as referring to the country or cultural group (nation) from which a person originates.

29. “Nationality”, on the other hand, is a legal bond a State creates with certain persons whom it accepts as its nationals. It is a person's legal status as a citizen of a State. Nationality is an alterable condition and is fundamentally different in nature from the characteristics of individuals listed in Article 1, paragraph 1, which are inherent, immutable and permanent. This crucial difference suggests that nationality is not encompassed within any of the prohibited grounds listed in Article 1, paragraph 1, including “national origin”.

30. Article 1, paragraph 1, must also be read in the context of the Convention's other provisions. Paragraph 2 of Article 1 provides that “[t]his Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens”, and paragraph 3 provides that “[n]othing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality” (emphasis added). It is reasonable to consider that this proviso was inserted in paragraph 3 because CERD does not otherwise prohibit discrimination based on nationality. Furthermore, in Article 5, States parties undertake to guarantee the right of everyone to equality before the law in the enjoyment of the listed rights, which include rights that are typically reserved for citizens, such as political rights.

31. Qatar argues that since paragraphs 2 and 3 of Article 1 are exceptions to the definition established in paragraph 1, they imply that nationality is a prohibited ground under the definition in paragraph 1. However, paragraphs 2 and 3 rather convey the drafters’ intent to exclude differential treatment based on nationality from the scope of the Convention and to make sure that the Convention does not prevent States parties from regulating questions of nationality. They are not exceptions to paragraph 1, but instead clarify that the definition of racial discrimination in paragraph 1 should not be read to encompass distinctions based on nationality.

32. Interpreting “national origin” as not encompassing nationality is also consistent with CERD's object and purpose of eliminating racial discrimination “in all its forms and manifestations” (preamble; see also Arts. 2 and 5). Although nationality is not encompassed within “national origin”, Article 1, paragraph 1, still prohibits differential treatment based on nationality when it has the “purpose or effect” of discriminating on the basis of “national origin” (see section II.3 below).

33. The travaux préparatoires of CERD confirm that the drafters did not intend nationality to constitute a ground of racial discrimination. The Court analyses the travaux préparatoires in detail (Judgment, paragraphs 89–97). I would draw attention to the following two points in particular. First, the definition of racial discrimination prepared by the Commission on Human Rights and presented to the Third Committee of the General Assembly in 1964 contained the following sentence: “[In this paragraph the expression ‘national origin’ does not cover the status of any person as a citizen of a given State.]” (See Judgment, paragraph 94.) Secondly, in the course of the work of the Third Committee, France and the United States of America proposed an amendment that would have provided that “the expression ‘national origin’ does not mean ‘nationality’ or ‘citizenship’” and that the Convention was not applicable to distinctions “based on differences of nationality or citizenship”Footnote ¹⁴. In withdrawing this proposal, the French delegate stated that the alternative text, which was eventually adopted as Article 1, was “entirely acceptable” to both France and the United States (see Judgment, paragraphs 90 and 96). The CERD Committee has also accepted that “the travaux préparatoires of the Convention show that in the different stages of the elaboration of the Convention . . . the ground ‘national origin’ was understood as not covering ‘nationality’ or ‘citizenship’”Footnote ¹⁵.

34. An additional reason to distinguish “national origin” from “nationality” relates to the different levels of scrutiny that are required in reviewing the lawfulness of differential treatment under each ground. Racial discrimination is one of the most invidious forms of discrimination. Differentiation of treatment based on a prohibited ground listed in Article 1, paragraph 1, of CERD is inherently suspect and must meet the most rigorous scrutiny. For example, the ECtHR has held that “[w]here the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible”Footnote ¹⁶. The ECtHR has gone so far as to affirm that “[n]o difference in treatment based exclusively or to a decisive extent on a person's ethnic origin is capable of being justified in a contemporary democratic society”Footnote ¹⁷. In this way, if the difference in treatment is based on “race, colour, descent, or national or ethnic origin”, States bear a very heavy burden in demonstrating that the difference pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The scrutiny must be most rigorous and the threshold must be very high.

35. When the difference in treatment is based on nationality, the level of scrutiny required is different. Since non-citizens normally have no right to vote or be elected, and thus are unable to protect their interests through the political process, rigorous scrutiny is warranted for distinctions based on nationality. However, because States are entitled to make distinctions between citizens and non-citizens in respect of some rights or in certain circumstances, the level of scrutiny required need not be as rigorous as in cases of distinctions based on “race, colour, descent, or national or ethnic origin”. The ECtHR has declared that “very weighty reasons would have to be put forward before it could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention”Footnote ¹⁸. While that threshold remains high, the scrutiny required by the ECtHR is not as rigorous and the threshold is not as high as for cases of distinctions based on “race, colour, descent, or national or ethnic origin”Footnote ¹⁹.

36. As noted in the Judgment, the Court has taken into account in its jurisprudence the practice of bodies and courts established by international and regional human rights conventions, in so far as it is relevant for the purposes of interpretation (Judgment, paragraph 77). In the present case, however, the Court considers the jurisprudence of regional human rights courts to be “of little help for the interpretation of the term ‘national origin’ in CERD”, because the purpose of the regional instruments “is to ensure a wide scope of protection of human rights and fundamental freedoms” (paragraph 104). CERD prohibits racial discrimination and certainly differs from general human rights conventions, which prohibit many kinds of discrimination. Nevertheless, the general prohibition of discrimination includes the prohibition of racial discrimination and the other human rights conventions also list “national origin” among the prohibited grounds of discrimination. Therefore, the practice of bodies and courts established by international and regional human rights conventions is relevant to the interpretation of Article 1 of CERD.

37. Interpreting the term “national origin” in Article 1, paragraph 1, of CERD as not encompassing nationality is consistent with the interpretation of similar language in other human rights conventions by these bodies and courts. As noted above (see section I), international human rights conventions usually contain non-discrimination provisions with a list of prohibited grounds of discrimination that includes “national origin” but not “nationality”. In interpreting these provisions, these bodies and courts typically distinguish “nationality” from “national origin” and do not consider the former to be encompassed by the latter.

38. Non-discrimination provisions of the core human rights treaties adopted by the United Nations do not contain nationality among the prohibited grounds of discrimination, except for the International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families, which lists “nationality” separately from and in addition to “national origin” as a prohibited ground (Arts. 1 and 7). In interpreting that Convention, the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families has explicitly treated “national origin” and “citizenship status” as two distinct grounds of discriminationFootnote ²⁰.

39. Similarly, the Human Rights Committee does not view the term “national origin”, as used in the ICCPR, as encompassing nationality. Rather, it has taken the position that nationality falls within the term “other status”, which is listed along with “national origin” among the prohibited grounds of discrimination in Article 26 of the ICCPR. In Gueye et al v. France, the case concerning the pensions of retired French soldiers of Senegalese nationality (see paragraph 13 above), the Committee held that there was discrimination based on nationality, while finding “no evidence to support the allegation that the State party has engaged in racially discriminatory practices vis-à-vis the authors”. In doing so, the Committee expressly stated that a differentiation by reference to nationality “falls within the reference to ‘other status’ in . . . article 26”Footnote ²¹.

40. Karakurt v. Austria, another case before the Human Rights Committee, is even more illuminating. The case involved a claim by a Turkish national that a labour law of Austria which barred non-Austrian nationals from holding positions on works councils violated his rights under Article 26 of the ICCPR. Upon its ratification of the ICCPR, Austria entered a reservation that “Article 26 is understood to mean that it does not exclude different treatment of Austrian nationals and aliens, as is also permissible under article 1, paragraph 2, of [CERD]”. The Committee considered that it was precluded by this reservation from examining the claim of the author of the communication in so far as it related to the distinction between Austrian nationals and non-nationals, but that it was not precluded from examining the author's claim relating to the distinction made by Austria between nationals of the European Economic Area (EEA) and non-EEA nationals. Two members disagreed with the first conclusion of the Committee. They maintained that Austria's intention was to harmonize its obligations under the ICCPR with those under CERD. Hence, in their view, “the Committee [was] precluded from assessing whether a distinction made between Austrian nationals and aliens amounts to such discrimination on grounds of ‘race, colour, descent or national or ethnic origin’”. They contended, however, that nationality was not a ground of racial discrimination under CERD and, therefore, that the Committee was not barred by the Austrian reservation from examining the author's claim on the distinction between Austrian nationals and non-nationals. For them, “Article 1, paragraph 2, of [CERD] makes it clear that citizenship is not covered by the notion of ‘national origin’”. By contrast, “distinctions based on citizenship fall under the notion of ‘other status’ in article 26 and not under any of the grounds of discrimination covered by article 1, paragraph 1, of [CERD]”. They concluded that “the Austrian reservation to article 26 does not affect the Committee's competence to examine whether a distinction made between citizens and aliens amounts to prohibited discrimination under article 26 of the Covenant on other grounds than those covered also by [CERD]”Footnote ²².

41. The CESCR, like the Human Rights Committee, has taken the view that “national origin”, which is listed among the prohibited grounds of discrimination in Article 2, paragraph 2, of the ICESCR, “refers to a person's State, nation, or place of origin”Footnote ²³, and that nationality falls within “other status”Footnote ²⁴.

42. As previously noted, regional conventions on human rights also contain non-discrimination provisions with lists of prohibited grounds of discrimination, which are recognized to be illustrative, and the monitoring courts and bodies established by these conventions have confirmed that the human rights provided for therein also apply to non-citizens (see paragraphs 10 and 15 above). These courts and bodies usually do not consider nationality as falling within “national origin”. For example, in Luczak v. Poland, the ECtHR stated that “a difference in treatment on the basis of nationality . . . falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14”Footnote ²⁵.

43. The CERD Committee has confirmed in its jurisprudence that differentiation of treatment based on nationality does not per se constitute “racial discrimination” under CERD. In Diop v. France, a Senegalese citizen claimed that France was in violation of CERD because his application for membership of the Bar of Nice had been rejected for the reason that he was not a French national. The Committee found no violation, stating that “the refusal to admit [the author] to the Bar was based on the fact that he was not of French nationality, not on any of the grounds enumerated in article 1, paragraph 1”Footnote ²⁶. Similarly, in Quereshi v. Denmark, the CERD Committee held that it could not conclude that the Danish authorities had reached an inappropriate conclusion in determining that offensive statements made at a party about “foreigners” did not amount to an act of racial discrimination, because “a general reference to foreigners does not at present single out a group of persons . . . on the basis of a specific race, ethnicity, colour, descent or national or ethnic origin”Footnote ²⁷.

44. For the reasons given by the Court (Judgment, paragraphs 74–105) and the reasons set out above, I am of the view that current nationality is not encompassed within “national origin” under Article 1, paragraph 1, of CERD and, therefore, that differentiation of treatment based on current nationality does not per se constitute “racial discrimination” within the meaning of CERD.

45. In accordance with Article 22 of CERD, the Court has jurisdiction only if the challenged measures are capable of constituting “racial discrimination” within the meaning of CERD. The next section turns to examine whether differential treatment based on nationality, although it does not per se constitute racial discrimination under CERD, can nonetheless have the purpose or effect of discrimination on the basis of one of the prohibited grounds listed in Article 1, paragraph 1, of CERD and thus constitute racial discrimination indirectly.

3. Distinctions based on “nationality” can have the purpose or effect of discrimination based on “national origin”

46. With regard to Qatar's claim of indirect discrimination, the majority of the Court considers that “even if the measures of which Qatar complains in support of its ‘indirect discrimination’ claim were to be proven on the facts, they are not capable of constituting racial discrimination” (Judgment, paragraph 112), and concludes that the first preliminary objection of the UAE must therefore be upheld (paragraph 114). I respectfully disagree. Qatar's claim of indirect discrimination requires a detailed examination at the merits stage. The Court should have declared that the first preliminary objection of the UAE does not possess an exclusively preliminary character.

47. I shall start by examining the notion of indirect discrimination as embraced and developed by international human rights courts and bodies and the role it plays under CERD. Then, in the next section, I will explain why Qatar's claim of indirect discrimination should have been examined in detail at the merits stage.

48. The definition of racial discrimination in Article 1, paragraph 1, of CERD sets out two conditions. First, there must be a distinction, exclusion, restriction or preference “based on race, colour, descent, or national or ethnic origin”. Secondly, the differential treatment must have 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.

49. If differentiation of treatment based on nationality has the “purpose or effect” of discrimination based on one of the prohibited grounds listed in Article 1, paragraph 1, it is capable of constituting “racial discrimination” within the meaning of the Convention. The object and purpose of CERD is to eliminate racial discrimination “in all its forms and manifestations” (preamble; see also Arts. 2 and 5). Ensuring that differentiation of treatment based on nationality does not have the “purpose or effect” of discriminating based on any of the prohibited grounds in Article 1, paragraph 1, is consistent with, and indeed required by, the object and purpose of the Convention.

50. Judge Crawford has acknowledged that “[a restriction] may constitute racial discrimination if it has the ‘effect’ of impairing the enjoyment or exercise, on an equal footing, of the rights articulated in CERD”Footnote ²⁸. Likewise, Judges Tomka, Gaja and Gevorgian observed in their joint declaration appended to the Court's first provisional measures Order in the present case that “[d]ifferences of treatment of persons of a specific nationality may target persons who also have a certain ethnic origin and therefore would come under the purview of CERD”Footnote ²⁹.

51. International human rights courts and bodies, including the CERD Committee, have embraced and developed the notion of indirect discrimination. If a rule, measure or policy that is apparently neutral has an unjustifiable disproportionate prejudicial impact on a certain protected group, it constitutes discrimination notwithstanding that it is not specifically aimed at that group. The analysis of disproportionate impact requires a comparison between different groups. The context and circumstances in which the differentiation was introduced must be taken into account in determining whether the measure amounts to discrimination.

52. The CERD Committee has recognized in its practice the need to address not only direct but also indirect discrimination. In its 1993 General Recommendation XIV on article 1, paragraph 1, of the Convention, the Committee stated that “[i]n seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin”Footnote ³⁰. In L.R. v. Slovakia, it recalled that

53. The other human rights treaty bodies have likewise embraced the notion of indirect discrimination. The Human Rights Committee has recalled that

The CESCR has declared that “[b]oth direct and indirect forms of differential treatment can amount to discrimination under article 2, paragraph 2, of the Covenant”, defining indirect discrimination as “laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination”Footnote ³³. Similarly, the Committee on the Elimination of Discrimination against Women has declared that “States parties shall ensure that there is neither direct nor indirect discrimination against women”, and explained when indirect discrimination occursFootnote ³⁴.

54. Regional human rights courts have accepted the notion of indirect discrimination as well. For example, the ECtHR has stated that “a policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory, regardless of whether the policy or measure is specifically aimed at that group”Footnote ³⁵. Similarly, the IACtHR has considered that

55. The CERD Committee has applied the notion of indirect discrimination in the context of the treatment of non-citizens. In B.M.S v. Australia, the Committee examined a quota system introduced by Australia that limited the number of doctors trained abroad who were permitted to pass the first stage of the medical examination process to be registered as a doctor in that country. The Committee held that it could not reach the conclusion that “the system works to the detriment of persons of a particular race or national origin” and therefore found that the facts as submitted did not disclose a violation of CERD. It nonetheless recommended to Australia to take measures and improve the transparency of the medical registration procedure to ensure that “the system is in no way discriminatory towards foreign candidates irrespective of their race or national or ethnic origin”Footnote ³⁷. In addition, the Committee has consistently asked States parties to report on the status of non-citizens, particularly migrants and refugees, who often belong to a single ethnic group and are susceptible to racial discrimination based on one of the prohibited grounds listed in Article 1, paragraph 1, of CERD. It has rejected an interpretation of Article 1, paragraph 2, that would “absolv[e] States parties from any obligation to report on matters relating to legislation on foreigners”, affirming that “States parties are under an obligation to report fully upon legislation on foreigners and its implementation”Footnote ³⁸. After considering reports submitted by States parties, the Committee regularly adopts concluding observations that include recommendations on the treatment of non-citizens. These practices of the CERD Committee can be explained by the notion of indirect discrimination. While differentiation of treatment based on nationality does not per se constitute racial discrimination within the meaning of CERD, it constitutes racial discrimination if it has the “purpose or effect” of discrimination based on one of the prohibited grounds in Article 1, paragraph 1.

56. In September 2001, the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban, South Africa, adopted a Declaration against Racism, Racial Discrimination, Xenophobia and Related Intolerance (hereinafter the “Durban Declaration”). The Durban Declaration stated that “racism, racial discrimination, xenophobia and related intolerance occur on the grounds of race, colour, descent or national or ethnic origin” (para. 2; emphasis added), and that

The drafters of the Durban Declaration considered that xenophobia against non-nationals “constitutes one of the main sources of contemporary racism”, presumably because it often has the purpose or effect of discrimination based on “race, colour, descent or national or ethnic origin”. Thus, the concern expressed by the Durban Declaration about xenophobia against non-nationals may also be explained by the notion of indirect discrimination.

57. In 2004, influenced by the Durban Declaration, the CERD Committee adopted General Recommendation XXX on discrimination against non-citizens Footnote ³⁹. In its paragraph 4, the Committee proclaimed:

The phrase “judged in the light of the objectives and purposes of the Convention” in this context may be understood as referring to situations where differential treatment based on citizenship has the purpose or effect of discriminating on the basis of a prohibited ground listed in Article 1, paragraph 1, of CERD, that is, indirect discrimination.

58. Finally, the notion of indirect discrimination presumably underlies the CERD Committee's decision on the admissibility of the inter-State communication brought by Qatar against the UAE pursuant to Article 11 of CERD. The Committee concluded that the allegations submitted by Qatar “do not fall outside the scope of competence ratione materiae of the Convention”, relying primarily on its previous practice, in particular paragraph 4 of General Recommendation XXXFootnote ⁴¹. As noted above, paragraph 4 can be explained by the notion of indirect discrimination. The Committee may have come to the above conclusion precisely because differentiation based on current nationality is capable of constituting racial discrimination indirectly.

4. The objection of the UAE does not possess an exclusively preliminary character

59. In accordance with the notion of indirect discrimination explained in the previous section, if differentiation of treatment based on current nationality has an unjustifiable disproportionate prejudicial impact on an identifiable group distinguished by “race, colour, descent, or national or ethnic origin”, it constitutes racial discrimination within the meaning of Article 1, paragraph 1, of CERD.

60. In the present case, Qatar has explicitly acknowledged that “it is on ‘national origin’ that [it] bases its claims”Footnote ⁴². It claims that the UAE has engaged in indirect discrimination against persons of Qatari national origin. It does not claim that the measures taken by the UAE were discriminatory on the basis of another protected ground — “race, colour, descent, or ethnic origin”. The UAE for its part contends that the measures complained of by Qatar do not constitute indirect discrimination on the basis of national origin. It maintains that no measure was taken, in terms of either purpose or effect, against any person other than those belonging to the group defined by Qatari nationality.

61. The task of the Court, therefore, is to determine whether the measures taken by the UAE on the basis of current nationality have an unjustifiable disproportionate prejudicial effect on an identifiable group distinguished by national origin. In order to make this determination, it is first necessary to identify a group that is distinguished by “national origin” and entitled to protection under CERD. Subsequently, it must be assessed whether the measures have an unjustifiable disproportionate prejudicial impact on that protected group compared to other groups.

62. With regard to the first issue, Qatar contends that Qataris can be distinguished by their “national origin” in the historical-cultural sense, defined by their heritage or descent, family or tribal affiliations, national traditions and culture, and geographic ties to the peninsula of Qatar. It argues that several factors, including dialect or accent, traditional dress and family affiliations, distinguish Qataris from other national communities in the Gulf region. Qatar relies mainly on an expert report in support of this contentionFootnote ⁴³. The UAE for its part argues that Qatari and Emirati people share geographical ties, as well as a common ancestry, language, heritage, traditions and culture, to such an extent that they are the same people, albeit with different nationalities. However, it submits no evidence in support of this contention. The UAE accepts that “[d]isguised discrimination would come within the scope of . . . CERD”, but maintains that “there is no discrimination, whether open or disguised, direct or indirect, against a CERD protected group”Footnote ⁴⁴. Thus, the very existence of a protected group under CERD is contested by the Parties. Based on the pleadings of the Parties and the evidence submitted, the Court is not in a position to establish whether a CERD protected group can be distinguished by national origin. The materials before the Court do not provide it with all the facts needed to resolve the first issue.

63. The second issue is whether the challenged measures have an unjustifiable disproportionate prejudicial impact on the protected group compared to other groups. Qatar claims that the measures have a “disproportionate impact” on the rights of QatarisFootnote ⁴⁵. The UAE for its part contends that the measures are addressed to Qatari nationals, and not persons of Qatari national origin. It maintains that persons of Qatari national origin but not possessing Qatari nationality were neither addressed nor affected by the measures, and that persons of Qatari nationality but possessing some other national origin were nonetheless addressed and affected by the measures.

64. In order for the measures challenged here to constitute indirect discrimination, they must have an unjustifiable disproportionate prejudicial impact on the identified protected group in comparison with other groups. Qatar bears the burden of establishing such a disproportionate impact. On the other hand, the UAE has the burden of demonstrating that the measures were based exclusively on nationality. The context and circumstances in which the differentiation was introduced must be taken into account in determining whether the measures amount to discrimination. The examination of these questions requires extensive factual analysis. In the same way as for the first issue addressed above, the materials before the Court do not provide it with all the facts necessary to address the second issue. Moreover, these issues constitute the very subject-matter of the dispute on the merits, and as such their determination should be left to the merits stage. The Court should rule on them only after the Parties have presented their arguments and evidence at that stage.

65. The majority of the Court considers that “[w]hile in the present case the measures based on current Qatari nationality may have collateral or secondary effects on persons born in Qatar or of Qatari parents, or on family members of Qatari citizens residing in the UAE, this does not constitute racial discrimination within the meaning of the Convention”, because they “do not, either by their purpose or by their effect, give rise to racial discrimination against Qataris as a distinct social group on the basis of their national origin”. In its view, “even if the measures of which Qatar complains in support of its ‘indirect discrimination’ claim were to be proven on the facts, they are not capable of constituting racial discrimination within the meaning of the Convention” (Judgment, paragraph 112). Accordingly, it concludes that the Court “does not have jurisdiction ratione materiae to entertain Qatar's [claim of indirect discrimination]” (paragraph 113).

66. I disagree with the majority's analysis and its conclusion on Qatar's claim of indirect discrimination. If it were proven on the facts that the measures have an unjustifiable disproportionate prejudicial impact on an identifiable group distinguished by national origin and that they were not based exclusively on nationality, the measures would constitute racial discrimination within the meaning of the Convention, in accordance with the notion of indirect discrimination. The majority provides little analysis in support of its conclusion that while the measures based on current Qatari nationality may have “collateral or secondary effects” on Qataris, they do not, “either by their purpose or by their effect”, give rise to racial discrimination against Qataris “as a distinct social group on the basis of their national origin”. By drawing that conclusion, the majority has in effect determined the dispute on the merits at the preliminary objections stage.

67. In the case concerning the Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), the Court pointed out that, at the preliminary objections stage, it only needs to ascertain whether the challenged measures are capable of affecting the rights protected by CERD, and that it does not need to satisfy itself that the measures actually constitute racial discrimination within the meaning of Article 1, paragraph 1, of CERD, or to what extent certain acts may be covered by Article 1, paragraphs 2 and 3, of CERD. The Court explained that “[both of these] determinations concern issues of fact, largely depending on evidence regarding the purpose or effect of the measures alleged . . . and are thus properly a matter for the merits”Footnote ⁴⁶. The same is true for Qatar's claim of indirect discrimination in the present case.

68. It is also a relevant consideration that Qatar developed its claim of indirect discrimination significantly during the preliminary objections stage. In the Court's first provisional measures Order in the present case, five judges took the view that nationality was not encompassed within the term “national origin”Footnote ⁴⁷. Judges Tomka, Gaja and Gevorgian observed in addition that “[the] possibility [of indirect discrimination] has not been suggested by Qatar”Footnote ⁴⁸. During the oral proceedings on the preliminary objections in the present case, the UAE contended that “nowhere is [the] indirect discrimination claim referred to in Qatar's Application” and that “to try and patch a leaky argument, Qatar's counsel asserted . . . that Qatar's is an indirect discrimination claim”Footnote ⁴⁹. It should be noted, however, that in its Application, Qatar did refer to discrimination “de jure or de facto” on the basis of national origin and that in its Request for the indication of provisional measures, it requested that the Court order the UAE to cease and desist from any and all conduct that could result, “directly or indirectly”, in any form of racial discrimination against Qatari individuals and entitiesFootnote ⁵⁰. In its Memorial, Qatar also contended that the UAE's measures had a discriminatory “effect” on QatarisFootnote ⁵¹. Nevertheless, it is true that the Applicant significantly developed its arguments on indirect discrimination at the preliminary objections stage, in its Written StatementFootnote ⁵² and in particular in its oral pleadings. The Court properly points out in this regard that “the subject-matter of a dispute is not limited by the precise wording that an applicant State uses in its application” (Judgment, paragraph 61), and that “the Rules of Court do not preclude Qatar from refining the legal arguments presented in its Application or advancing new arguments” (paragraphs 63 and 68).

69. It is nonetheless important to keep in mind that in preliminary objection proceedings, the parties have only one chance to exchange written submissions. After Qatar submitted its Written Statement in response to the UAE's Preliminary Objections, the UAE had no further opportunity to refute in writing the arguments made by the Applicant therein, including those pertaining to the claim of indirect discrimination. During the oral proceedings, the Parties did exchange arguments on indirect discrimination, but only to a limited extent and not thoroughly. Qatar's claim of indirect discrimination should have been examined in detail by the Court at the merits stage, after being fully apprised of the relevant facts, evidence and arguments of the Parties.

70. Under Article 79ter, paragraph 4, of the Rules of Court, when it is called upon to rule on a preliminary objection, the Court shall uphold or reject it, or “declare that, in the circumstances of the case, [it] does not possess an exclusively preliminary character”.

71. The Court has previously expressed its view on the resolution of preliminary objections as follows:

In the present case, the Court does not have before it all facts necessary to decide the two issues raised in relation to Qatar's claim of indirect discrimination. They are precisely the issues that should be examined in detail by the Court at the merits stage. Furthermore, while the UAE's objection contains “both preliminary aspects and other aspects relating to the merits”, it is “inextricably interwoven with the merits”Footnote ⁵⁴. Thus, the present case fulfils the criteria laid down by the Court for finding that a preliminary objection does not possess an exclusively preliminary character.

72. For the reasons set out above, the Court should have declared that, in the circumstances of the present case, the first preliminary objection of the UAE does not have an exclusively preliminary character.

73. This conclusion is in line with the final submissions that the Applicant made at the end of the oral pleadings. It asked the Court to “(a) Reject the Preliminary Objections presented by the UAE; . . . (d) Or, in the alternative, reject the Second Preliminary Objection . . . and hold . . . that the First Preliminary Objection . . . does not possess an exclusively preliminary character”Footnote ⁵⁵. Qatar's claim of indirect discrimination should have been examined in detail by the Court at the merits stage, on the basis of facts and evidence submitted by the Parties. The conclusion drawn in paragraph 72 above should not be interpreted as prejudging in any way the potential findings of the Court on the merits.

(Signed)  Iwasawa Yuji.